text:
    CHANDLER vs HOLLOWAY

      As topleadings in the action of slander.

      As to actionable words in slander.

      As to verdict and judgment in slander.

    Í. Upon general demurrer to a declaration, containing oiie good count, and others defective — the plaintiff is entitled to judgment, unless there be a misjoinder of actions.
    2. A count in a declaration for slander, averring, that the defendant charged the plaintiff in the words following, to wit : “ You,” (meaning the plaintiff and others,) “ are a gang of murderers — you killed Taylor, and you know it held, to be sufficiently certain ; and to entitle the plaintiff to his separate action.
    Q. Although a declaration in slander, for words charging a felony, need not aver that one has been committed ; yet,- where a plaintiff, to render his Cause of action complete, avers that one (whom he is- charged to have murdered,) was killed', — ¡ the manner of such killing need not be set out.
    4. In an action of slander, the principle, that where words, some' actionable, and others not, are alleged in a' count, it is sufficient to prove those actionable ; applies to a case in: which the application of some of the actionable words is shown,'and that of the others does not appear.

      6. The Common Law rule, that a' general verdict upon1 a' declaration in slander of several- counts, where one is defective, is bad ; — is abrogated under the statute of amendments of 1824, in all cases where the declaration contains1 a substantial cause of action, and a material issue is tried-.
    £. The action of slander is maintainable separately, by one, ori a charge that “ they,” (meaning the plaintiff and his family,) “ killed Taylor.”

      Í. Entitling a declaration as of a term subsequent to that, to' which the writ is returnable, is not, in- this State, a defect available In error.

      8. In the action of slander, a verdict upon the issue of not guilty — that, “ the jury find the issue, for the plaintiff,” &c., is sufficient.
    This was an action of slander, in St. Clair Circuit Court. The plaintiff, William Holloway, declared against Joel Chandler, in seven counts ; to which, a general demurrer was filed, and overruled: and under the plea of not guilty, a verdict was entered for the plaintiff.
    The counts in the declaration, set out:

      First — That before the commitment of the several grievances, by the said defendant, after mentioned, a certain man, by the name of Taylor, had died, or been killed, in the county of St. Clair, &c. — and the defendant contriving, &c., — falsely and maliciously spoke of and concerning the plaintiff and others, these false, scandalous, malicious, and defamatory words, following, that is to say — “ You,” (meaning: plaintiff and others,) “ are a gang of murderers; you hilled Taylor, and you know itmeaning thereby, that plaintiff and others had murdered James Taylor.

      Secondly — That defendant, further contriving, &c, - — falsely and maliciously spoke and published of plaintiff these other words, that is to say, “they/5 (meaning the said plaintiff and others,) “ are a gang of murderers — they, (meaning the plaintiff and. others,) killed Taylor, and you, (meaning the plaintiff,) know itthereby meaning, that the said plaintiff and others had murdered James Taylor.

      Thirdly — That the defendant further contriving, &e. — spoke of the plaintiff these other false, scandalous, malicious, and defamatory words, viz: “ This same set, (meaning plaintiff and others,) murdered Taylor, and you, (meaning plaintiff,) know it— meaning thereby, that the said plaintiff, in conjunction with others, murdered James Taylor.

      Fourthly — That defendant further contriving, «See. —spoke these other words, to wit: — “ This same set, (meaning plaintiff and others,) are a parcel of murderers — they killed Taylor, and you, (meaning the said citizens,) know itmeaning thereby, that the said plaintiff and others, had associated themselves together, and murdered the said James Taylor.

      Fifthly — That defendant further contriving, &c. — ■ spoke of plaintiff these other words, that is to say — ■ “ They, (meaning plaintiff and his family,) killed Taylor:” meaning thereby, that the said plaintiff and his family had murdered James Taylor.

      Sixthly — That defendant further contriving, &c.— spoke of plaintiff these other words, to wit: “ He (meaning plaintiff,) killed Taylor, and you, (meaning the citizens aforesaid,) know it: meaning thereby, that the said plaintiff had killed and murdered the said James Taylor.

      Seventhly — That defendant further contriving, &c. —spoke of plaintiff these other words, viz: “ You, (meaning plaintiff,) killed Taylor:” meaning thereby, that the said plaintiff was guilty of the crime of murder. By means, &c., the plaintiff was injured, &c.
    The demurrer to this declaration, having been overruled, the following entry of judgment wasmade, to wit:
    “ William Holloway vs. Joel Chandler, March term, 1835. Came the parties, by their attorneys, and the matters in law arising upon the defendant’s demurrer to the plaintiff’s declaration being heard, and by the Court here fully understood; — it is ordered by the Court, that said demurrer be overruled; and the defendant be allowed to plead over; who having plead, not guilty — thereupon came a jury of good and lawful men, to wit,” &c.— “ who being elected, tried and sworn, the truth to speak upon the issue joined, upon their oaths do say, that they find the issue for the plaintiff; and assess his damages to the sum of three thousand dollars. It is therefore considered,” &c.
    The defendant, by writ of error, brought the cause here; and he assigned—
    1. That the Court erred in overruling the demur? rer.
    2. That the verdict was general — one count in the declaration being for the slander of plaintiff and his family; which was a misjoinder.
    3. That the verdict found the issue in favor of plaintiff, without finding defendant guilty of speak? ing the words.
    4. That the declaration was entitled as of March term, 1835 — the writ being returnable to March term, 1834.
    5. That the declaration contained no substantial cause of action.
    6. That a trial was had at the term, at which the .declaration was entitled and filed.
    7. That no legal judgment was entered.
    P. Parsons and Ellis & Peck, for the plaintiff in error.

      McClmg and S. Parsons for the defendant.
   HOPKINS, J.

— The action in this case was slander. The plaintiff in error was the defendant in the action. To the declaration, which contains seven counts, he filed a demurrer; that is, according to the statute law, a general one. The judgment which is before us for review", overruled the demurrer. The cause was afterwards tried upon the general issue, and the verdict and judgment were for the plaintiff in the action. Upon a general demurrer to the whole declaration, which contains one good count, and others that are defective, the plaintiff is entitled to judgment, unless there be a misjoinder of actions.

It is stated in the declaration, that before the” Words complained of, were uttered and published, one James Taylor had died, or been killed, in the county m winch the venue in the declaration was lclícL

The first count stated, that in a certain discourse, which the defendant had with the plaintiff, of and concerning the plaintiff and others, the defendant falsely and maliciously spoke and published to and concerning the plaintiff and others, the following scandalous words — “You,” (meaning the plaintiff and others,) “ are a gang of murderers — you killed Taylor, and you know it:” (meaning thereby that the plaintiff and others had murdered the said James Taylor.) The statement in the declaration, shows the death of Taylor, but not the mode of it. The words laid in this count, charged that some persons, or some one, had killed him ; the legal effect of which was, that whoever did the act, was guilty of a felony. As the words charged a felony, it was not necessary to aver in the declaration that one had been committed

foe stafoment of Taylor’s death had been omitted in the declaration, it would not appear from the declaration, that the plaintiff had not been charged with killing a person, who was alive. To make the plaintiff’s cause of action complete, it was necessary to state the death in the declaration; but the manner of it, was immaterial. The objection which has been made to this count is, that the charge of the defendant was too uncertain and vague, to be applied to any one.

In a case in 11 Johnson’s Reports, 59 — it was decided that a count was good, which was upon the following words, uttered in a discourse with a father, of his children — “ your children arc thieves.” One .of the children brought the action, and it was determined that he and the other children were entitled to separate actions for the slander. It has been held, also, that a colloquium can give application to a' charge, that (<one of the servants of J. S. is a thief.”

The first count in this case does not state that the names of the other persons, to whom the defendant-referred in his discourse with the plaintiff, concerning himself and others, were mentioned. He might have referred to others in that conversation, without naming them, and the charge may be too uncertain as to all other persons than the plaintiff, to give any of those intended by the defendant, a right to an action. But if the application of the words to the plaintiff be certain, his right of action cannot be affected, because they cannot be applied definitely to others. To allow such an effect to the want of ap--plication of the words to the others, would be to deny one person his right, because others who had no proof to show it, might have been intended to be injured by the same slander. The language used by the defendant in his discourse with the plaintiff, ‘of himself and others, without naming the latter, can be as clearly applied by the colloquium to the plaintiff, as if the names of the others had been mentioned in the conversation. If their names had been expressed in the discourse, and stated in the declaration, the sufficiency of the count would not be questioned. But, as the names are not stated in the count, the legal presumption is, that they were not mentioned by the defendant, and that the defendant in his discourse with the plaintiff of himself and other persons referred to, whoever else he intended by the term “ others.” If a charge clearly made against the plaintiff, by the discourse with him of himself, could be rendered too general for the foundation of an action in his favor, by the addition of such a reference as the defendant made to others, reputation would be without any legal protection, and slander might be uttered with impunity. Although the words, you are a gang of murderers,” cannot be applied to the plaintiff' without the aid of the discourse, which the defendant had with the plaintiff of himself and others, yet the subsequent words, “ you killed Taylor, and you know it,” is a distinct charge, and actionable. This charge is applied to the plaintiff by so much of (he discourse as applied to himself, without the aid of the reference in the discourse to others.

The principle is settled, that where all the words, some actionable, and others not, are alleged in a count, ^ sufficient to prove those, which are actionable. We think this principle applies to a case, in which the application of some of the actionable words is shown, and that of others does not appear. In both aspects, in which we have viewed the first count, we are of opinion it is sufficient.

We shall not enquire of the sufficiency of either of the other counts; because it is unnecessary to do so. The rule of the Common Law, that if there be a general verdict upon a declaration containing several counts, one of which is defective, the judgment may be arrested or reversed, has been changed by a statute, the effect of which is to pfevent the arrest or reversal of a judgment in any case, in which the declaration contains a substantial cause of action, and a material issue has been tried.

A material issue has been tried in this .case. As all the counts compose but one declaration, and the first, in this, being sufficient, it follows, that the declaration contains a substantial, cause of action.

The next objection to the declaration, which w'e shall notice, is, that the fifth count is for,a cause .of action, to which the plaintiff and his family are equally entitled; and, therefore, there is a misjoinder of the cause of action in this count, with the causes of action in the others, to which the plaintiff is exclusively entitled. The statement in this count is, that the defendant said of the plaintiff and his family, “they,” (meaning the plaintiff and his family,) “killed Taylor.” The case in 11 Johnson's Reports, 59, shows, that such a charge embraces the plaintiff and each member of his family, and that each person of his family, who is capable of maintaining an action, is entitled to one for the slander.

The next objection was made to the title of the term in the declaration, which is of a term subsequent to that, to which the writ was returnable. This mistake is amendable, and the case will be considered here as if the amendment that might have been made, had been. It was a defect, of which advantage could be taken by a special demurrer only; and no demurrer has, by the statute law of the State, any other effect than a general demurrer.

If the declaration showed that the cause of action arose after the commencement of the suit, the defect would be fatal upon demurrer, and the verdict would not cure it. But, as no time was stated in the declaration, when the cause of action arose, a reference to the writ shows, that it was for the same cause of action, described in the endorsement on the writ, and, therefore, was the cause of action upon, which the writ was sued out. By the aid of the reference it is amendable, and as a special demurrer is not allowed, no advantage could have been taken of the omission. Upon a writ of error, the court will intend after the verdict, that the cause of action -was proved, upon the trial by the jury, to have arisen before the commencement of the action. The intendment which cures this omission in the declaration, is founded on the Common Law, and the effect of the doctrine is independent of that of the statutes oí jeofails, in akang defects m pleadings

The last objection was made to the verdict, which was upon the issue, whether the defendant was guilty, or not. The issue was found for the plaintiff, an¿ ¿he effect of the verdict is, that the defendant was guilty ; and so this Court determined in the case of Peters vs. Johnson and Connolly.

The doctrine relied upon to show the insufficiency of the verdict, is in 5 Bacon’s Abridgment, 312 — and requires the verdict in an action of trover, to find the defendant guilty. In support of the doctrine, the author of the work, cited 2 Mod. 244, and 10 Rep. 57. In the first cause it was determined, that although proof of a demand and refusal, is sufficient evidence for a jury to find a defendant guilty of the conversion alleged in a declaration; yet, should a jury not find a defendant guilty of the conversion upon such evidence, but return a. .special verdict, stating the demand of the plaintiff, and the refusal of the defendant, the verdict would be defective in substance, because it would find evidence, the effect of which, should have been determined by the jury.

The verdict in the case in 10 Rep. was held to be insufficient on the same principle. The verdict, in this case, can stand, without denying the authority of those cases.

We are all of opinion there is no error in the record.

Let the judgment be affirmed.

       pjCh379/ 379; 89,263; 18 Johns. R.' 59^’¿Mass-

       slander

       starWe 50,S6s"der

       661 • 6Bin ’ ney 121.

       Aik. Dig.1 S66;'l Stew art, 384; 1 Hen. & Munf. 365

       ^ep_ %!% Term>634'

      no Johns, Rep‘

      Chitty’s P,7i2,714<

      Aia.Eep.


source: Caselaw Access Project

author: I-IITCHCOCK, C. J.

license: Public Domain

text:
    SWOOPE vs TROTTER.

      As to the pursuit in equity of a trust fund, in the hands of a stranger.

    1. Chancery will pursue and appropriate to its legitimate object, a trust fund, in the hands of a stranger, to whom it has been paid by the trustee in satisfaction of his own debt.
    2. Thus, where A, a co-security toa guardianship bond, received from the guardian, in consideration of the private debt of the latter, a portion of his ward’s funds, and after the insolvency of the guardian, B, the other surety, was called upon to pay the funds of the ward ; — Chancery (under the facts,) on a bill filed by B, followed up in the hands of A, the amount received by him, and decreed its payment to the satisfaction of his ward’s claim.
    This was a bill in Chancery, filed in Lawrence Circuit Court, by Jacob K. Swoope against Joseph Trotter.
    The bill charged, that on, or about the-- day of October, eighteen hundred and twenty-four, orator and Joseph Trotter became the sureties of one David J. Poore, in a bond, given by the latter as the guardian of William W. and Thomas S. Logwood, infants. That in pursuance of said guardianship, the said Poore took possession of the slaves and other estate of the said wards, being at that time, (unknown to orator,) very greatly embarrassed in his circumstances. That the said Trotter well knew, as orator believed, that the said Poore, was embarrassed ; and the said Trotter, either individually, or 8$ 8 member of the firm of Trotter & McGonega], tlien had considerable claims against the said Poore, and became his surety to the. said bond, for the purpose of securing himself in said claims, and to enable him to procure a settlement of the same out of the guardianship funds in the hands and possession of the said Poore. That subsequently, the said Poore, having become still more embarrassed, executed a deed of trust, of all his estate, to secure the payment of his debts; that orator and the said Trotter were parties to this deed, and, in common with other creditors, received a dividend; which, on the part of orator and said Trotter, was applied to the payment of a security debt, having no relation to the guardianship bond security, as aforesaid. Orator further charged that, said Poore was deceased, having died insolvent: that after his death, orator and said Trotter took posession of the infants’ property, and managed it for their benefit: that the said Poore in his life time, commenced two suits, in the Circuit Court of Limestone, for the benefit of his said wards ; on which he recovered judgment. That after the said recovery, the said Trotter procured an order from said Poore, directed to his attorney, directing the latter to pay over to Trotter, the proceeds of the two said judgments to the firm of Trotter & McGone-gal, in discharge of the individual debt of the said Poore; — the said Trotter then well knowing that the money so recovered as aforesaid, belonged to, and was part of the estate of the said wards.
    Orator charged, that himself and said Trotter had settled with William W. Logwood, one of the said wards; and had paid him, out of their individual funds, the sum of two hundred and ten dollars, each — so much wasted by the srdd Poore. That the said Thomas S. Logwood was of age,, and. that orator and Trotter had estimated the loss they would sustain, on a settlement, to the sum of twelve hun-. dred and ninety-five dollars.
    The bill, therefore, prayed a decree, compelling said Trotter to pay over, in discharge of the amount due the ward, the money received by him in discharge of Poore’s individual debt, out of the wards’ funds.
    Trotter answered, setting out, that he, together with complainant, did become Poore’s sureties, as aforesaid; and that Poore, in pursuance thereof, took possession of the wards’ estate. He denied any knowledge of Poore’s insolvency or embarrassment: stated that at the period referred to in the bill, the said Poore was indebted to respondent and his partner, McGonegal, in and about two hundred and ninety dollars, not at that time due; that Poore was considered after that time good for his debts, in as much as many firms (with which Trotter seemed connected,) credited him to large amounts, down to the period of executing said trust deed. Respondent disavowed the motive charged, of becoming a surety to Poore’s bond, for the object of securing his private debt. He admitted the ultimate embarrassment of Poore; the execution of the deed of trust; the recovery of the two judgments; and the payment, by order on Poore’s attorney, of their amounts, in satisfaction of a debt due by Poore to the firm. Respondent averred, however, that he was informed said money was the proceeds of suits in favor of Poore’s brother, for whom he was (as stated by him to Trotter,) acting as agent; and denied any knowledge that the amount received by him belonged to the wards’ funds.
    The evidence in the cause consisted of the deposition of John J. Ormond, Esquire, which bore testimony to the following facts: That he did prosecute to recovery, for Poore, as guardian of William and Thomas Logwood, two suits ; and that the proceeds, except his fee, were paid to Trotter, as deponent believed, on the verbal direction of Poore: that on his return from the Court, where the cases were pending, he informed Trotter of their recovery, and the amount: that one of the suits was brought against one Moseley, the executor of a previous guardian of Poore’s wards; and was founded on a settlement made by the deceased guardian with the Orphans’ Court; the other suit, being for the recovery of the hire of negroes, the property of the wards, incurred before Poore became guardian: that Robert Poore was the brother of David, deponent’s client, and had been the guardian of the young Logwood’s, previous to David’s qualification as such: that David wished suits brought in his brother’s name, but became guardian, and the suits were commenced in his own; and that Robert Poore had no interest in them. Deponent believed, that Trotter knew the character of the suits; as he was present when deponent received the amount recovered of Mosely — that having recovered double what Poore anticipated, the latter informed Trotter of it: that at the time of the payment by Mosely, the latter fell short about seventy-eight dollars and sixty-five cents; and it was agreed that deponent should receipt in full, and retain the amount, with interest, out of notes placed in deponent’s hands by Mosely, for collection; that this agreement was specified in writing; and that deponent, at the request of Trotter, also agreed to wait for twenty-five dollars of his fee, till the money was collected; which was endorsed by Trotter on the papers. Deponent stated that he had not, to his belief, mentioned the matter to any person; and that the circumstance became, by accident, known to complainant, while settling with Poore’s wards.
    The chancellor, on a final hearing, dismissed the bill, at complainant’s costs; and the complainant took a writ of error.
   I-IITCHCOCK, C. J.

— This is a bill in equity,filed by the plaintiff in error, Swoope, against Trotter, as co-secürity in a guardianship bond for one David J. Poore, as guardian of Wm. V/. and Thomas S. Log-wood, to compel a contribution; alleging that bis co-secnrity had received of their principal, Poore, in payment of the individual debt of Poore to the firm of Trotter & McGonegal, a portion of the trust funds.

The bill charges that Poore, the guardian, while managing the funds of his wards, being considerably indebted to the firm of Trotter & McGonegal, and being much embarrassed, and while prosecuting two suits in the Circuit Court of limestone county, for the use and benefit of his wards, gave an order, directing his attorney, J. J. Ormond, Esquire, to pay over the proceeds of said judgments, to the firm of Trotter & McGonegal, in discharge of his individual debt due to Trotter & McGonegal; and that said Trotter well knew, at the time he procured the order, that the said,sums belonged to the orphans; and that he also knew of the embarrassments of the said Poore, and that he was unable to pay his debts.— The bill further states, that Poore died insolvent; that the complainant and defendant took the balance of the property of the orphans, and administered it till they became of age; when on a settlement, they had to pay one of them, two hundred and ten dollars each, out of their individual funds, and that the estimated loss to be paid to the other, is one thousand two hundred and ninety-five dollars: that the amount received by Trotter, of the attorney of Poore, on the judgments, is eight hundred and seventy-four dollars and fifty cents, in one case, and one hundred and twenty-one dollars and thirty-four cents, in the other : and prays that he may be compelled to account for that sum, towards making up their loss.

The answer admits, the reception of the order, hut denies he knew at the time he received it that Poore was greatly embarrassed, and unable to pay his debts, and also denies that he knew the character of the funds drawn for, to be that of the orphans, as well as he recollects; but alleges, that Poore then informed him, that they were the proceeds of some suits in favor of his (Poore’s) brother Robert, for whom Poore alleged he was acting as agent, whom he affirmed he had paid for the claims: that believing that said Poore was entirely responsible in his circumstances, and that he was not abusing any trust whatsoever, he received it: that the order was in a short time, and before said Poore’s circumstances were thought to be failing, presented to the drawer, and accepted. He states, that at the time of the giving of the order, which was in the spring of 1826, Poore was indebted to the firm of Trotter & Mc-Gonegal about nine hundred dollars. The answer concludes, by stating, that the first distinct intimation that he remembers- to have received, of the true character of the fund, was in 1832, wdien making a settlement with the complainant and William W. Logwood.

The testimony of J. J. Ormond, Esquire, -was taken; who states, that he brought the suits for Poore, as guardian of the Logwood’s,' to March term, 1826, of the Circuit Court of Limestone county, and obtained judgments at September term following; that the largest judgment was paid in January, 1827 — the other, some time after; that the proceeds, except his fees, were paid to Trotter; that he has no recollection of any written order from Poore to Trotter — that he has searched diligently his papers, but can not find one, though he has found other papers of less importance; his recollection is, that Poore instructed him verbally to pay the money to Trotter & McGoncgal, and that this was in the summer preceding the judgments; that as soon as he returned from Court, he apprised Trotter of the recovery ; that he feels pretty certain that he informed Trotter of the character of the suits, on his return in September, 1826, from Court; that he had recovered twice as much as Poore supposed was due; that he was quite pleased with his success, and related it to Trotter. That when he received the money from Moseley, on the large judgment, Trotter was present, and he thinks knew the character of the suits; that at the payment of the money, seventy-eight dollars and sixty-live cents were deficient, and that it was agreed that he, the witness, should receipt for the full amount, and take from Moseley an authority to retain that sum, with interest, out of notes he put in witness’ hands for collection, and that Mosely gave him a written authority to that effect, and that, at the instance of Trotter, he agreed to wait for twenty-five dollars of his fee out of said collections, which Trotter endorsed on said authority, that he was entitled to do: that the authority, which was in the hand-writing oí the witness, except the signature of Moseley, which had been accidentally torn off, was as follows:

“Mr. Ormond will apply the sum of seventy-eight dollars and sixty-five cents, to the discharge of a balance of a judgment, obtained by David J. Poore, guardian, &c. against me, as executor of Mary Tatef deceased, out of the proceeds of some notes put in to his hands this day for collection. — 27th January, 1827.”

The endorsement is as follows:

“ Mr. Ormond is entitled to twenty-five dollars of the amount mentioned in this order, as payable to D. J. Poore. — 27th January, 1827.

“ (Signed,) Jos. Trotter.”

This was all the testimony in the case, and upon the final hearing, the Circuit Court dismissed the bill, with costs.

That Poore committed a breach of trust in directing this disposition of the funds, belonging to his wards, there is no doubt; and the question is, whether the defendant is a party to the breach, so as to make him liable to account for it, for the benefit of his co-security.

There are many decisions in the Chancery Reports, as to how far creditors, and specific and residuary legatees, may follow the funds of their testators, in the hands of third persons, where executors have diverted the trust funds,—some of them turning npon questions of express—some of’ them upon implied, frauds, and others where, though no fraud is shown, yet, where such evidence of gross negligence, on the part of those dealing with executors, in not examining as to the character of the fund, is exhibited, as to subject them to liability at the suit of those originally entitled. A very elaborate review of these cases, may be found in the case of Hill vs Simpson by Sir William Grant, Master of the Rolls; and again, in the case of McLeod vs Drummond; from which an appeal was taken to the Lord Chancellor, and which is to be found in 17 Vesey, 153.

These cases shew, that though the power of an executor over the property he takes from his testator, is very large, both in Law and Equity—both to enable him to execute his trust, and also to prevent the general inconvenience of implicating and entangling third persons, in inquiries as to the application of the assets;—yet, that wherever there is a fraud, or direct evidence that the executor is going to misapply the funds, or is not acting in the execution of his duty; or where, from the transaction, the circumstances attending it should have put the party upon enquiry, as to the nature of the fund disposed of, a Court of Chancery will entertain jurisdiction, and restore it to its legitimate purpose.

These decisions are considered applicable to the case of guardians, and those dealing with them.— They cari not be more favorably viewed than executors ; as they are not invested with any thing like the same authority that belongs to them.

In the case before the Court, the answer denies all knowledge of the character of the funds, either at the time of the giving of the order, or at the ini of the money, so far as the defendant recnlbrts ; but states, that at the reception of the order, Poore, the guardian, informed him that the suite were in favor of his brother Robert; that he was acting as his (Robert’s) agent, and that he had paid Robert the amount of the claims. He also states, that at the date of the order, he believed Poore to be solvent. He admits, however, that before the payment of the money, Poore became notoriously insolvent. He knew that Poore was the guardian of the Logwood’s, •and was negotiating for security for a precedent debt. Under this aspect of the case, did not the circumstances require him to make some enquiry as to the character of the fund 1 It was not money that he received; neither was it a claim professedly in the name of Poore, reduced to a judgment; but a claim acknowledged to be then in suit, in the name of another person, of whom Poore was the agent, and no evidence produced, either of the agency, or of the pretended payment to the principal. Ordinary diligence, it would seem, in such a case, would have directed the defendant to have examined into the nature of these suits. But before the amount of these suits were realized, the insolvency of Poore became apparent: he assigned all his property to trustees, for the benefit of his creditors, among whom was the defendant, and his partner, McGonegal. Here, again, was matter for enquiry. Had the defendant gone to the records, he would have at once seen the nature of these suits, and that they were the property of. the wards of Poore; and under these circumstances, had he a right to shut his eyes and his ears, and to repose upon his order'? If he chose to do so, must he not abide by the consequences 1

In a case where a banker received transfers, from time to time, andan executor making advances for his account — part of the funds deposited were those of the executor, and part were a trust fund, the defendants denied that they knew, or suspected at the time of the transfers, that the property was not that of the transferee ; that he represented to them that he was absolutely entitled thereto, subject only to a small ■annuity, &c. — the Master of the Rolls remarks — that “ common prudence required that they should look at the will, and not to take the debtor’s word, as to his right under it. If they neglect that, and take the .chance of his speaking the truth, they must incur the hazard of his falsehood. The rights of third persons must not be affected by his negligence. I do not impute to them direct fraud; but they acted rashly, incautiously, and without the common attention used in the ordinary course of business.” If the* case rested upon this point, I should have little difficulty in reversing this decree.

But the testimony of Mr. Ormond, places the point of notice, before, and at the time of payment, beyond question. The answer .is negative as to his recollection: he may have forgotten; but the testimony of Mr. Ormond is affirmative; and though couched in such language, as to his belief,- as is quite material when a person is testifying to a transaction of long standing, yet not so as to imply a doubt as to the point of the fact having been communicated. Mr. Ormond expresses no doubt, and he refers to circumstances before and at the time of payment, that carry conviction, as to his correctness. — - He knew of the interest of Trotter in the suits— had been successful beyond his expectation.? — was pleased with his success ; — it was natural, therefore, that he should communicate it to the person most interested; and he says,he thinks he did. In addition to this, the order and endorsement given at the time of the payment, have the double effect of confirming the testimony of Mr. Ormond, as to his recollection, and also of an independent fact, which brings the knowledge of the character of the suits home to the defendant: these speak of the suit being in the name of Poore, as guardian. This, taken with the evidence of Mr. Ormond, present a case, in which the contradictory testimony of one credible witness, accompanied with strong circumstances, destroy the weight of the answer of the defendant.

The testimony of Moseley, who was present, is not taken. It was not necessary to sustain the bill; and as the defendant has not taken it, it is to be presumed that it could do him no good.

We do not impute either express or implied fraud in the defendant, in this case; or perjury in his answer. Relying, no doubt, on the legal efficiency of the order — the facts stated by the witness not being expressly charged in the bill, and the time which had elapsed from the date of the transaction, and the filing of the bill — the facts, in detail, may naturally have escaped his recollection. This does not, however, authorise us to recede from the known rules of law and evidence.- ,

The counsel for the defendant, in the written argu-f ment furnished, to avoid the effects of the testimony of Mr. Ormond, contends, that the right to the money became complete, at the time the order was given, and that he can not be affected by his subsequent knowledge of the truth of the case. If this were so, it does not relieve him from the first view we have taken of the case, but would charge him directly with a knowledge of the character of the suits, as in that case he would be considered as having received a transfer or assignment of the suits. But we think, that until the actual receipt of the money, the defendant is chargeable with all such facts as may tend to bring to his knowledge the true state-of the case. It was, at most, a pledge for a precedent debt. Until then, his right can not be considered as complete, and until then, may be defeated.

In the foregoing view we have taken, we have-considered the case as if the wards were pursuing their rights against a stranger, who had impi'operly obtained their effects from their guardian. The peculiar situation of the complainant and defendant, we think authorises the complainant to come into Equity now to assert his rights. They are co-securities — their principal is insolvent, and they are directly liable to the wards. One of the co-securities illegally withholds a portion of the trust funds: — a part of the loss has already been paid by the securities, and it is not necessary that the complainant should first be compelled to pay the balance to the wards before he can compel the co-security to account. It does not stand upon the footing of a co^ security who has paid more than his proportion. The breach of trust on the part of the guardian, gives the Court of Chancery jurisdiction to follow the trust fund, and direct its proper application.

The decree, dismissing the bill, is reversed, with costs; and a proper decree must be rendered in this Court.

       7 Vesey, 152.

      14 ib.353

       ^Vesey,


author: HITCHCOCK, C. J.

text:
    DERRICK, et al. vs. KENNEDY.

      As to ratifications of a sale by a minors after mature age.
    1 Where two sales of property aré made by one,"while a minor; and the last sale is ratified by him, after he comes of age ; — a subsequent ratification of thejfirst sale is void.
    Error to Limestone Circuit Court.
    William M. Kennedy declared in trespass against John Derrick and others, for forcibly taking from the possession of the plaintiff certain slaves: and under the plea of not guilty, as verdict was entered for the plaintiff.
    A bill of exceptions under which, the cause was removed to this Court, disclosed many facts — many of them not material to a history of it as decided, or essential to a proper understanding of its features.
    The plaintiff proved, that in the month of July, one thousand eight hundred and thirty-one, the defendant went to the house of the plaintiff, and by violence took away the .slaves mentioned in the declaration : which slaves had been conveyed to him by one Albert Kennedy,- in October, one thousand eight hundred and twenty-nine, by bills of sale, which were' produced and read in evidence. It was also proved, that the sale had been made while the said Albert Kennedy was in his minority ; and by his mother, that he was born on the first day of October, one thousand eight hundred and nine: that iff March, one thousand eight hundred and thirty, the said Albert Kennedy gave an order to plaintiff for the negroes, and then acknowledged that he had received full value for them, — being intended as a confirmation of the sale, which was made while a minor.
    The' defendant relied upon a bill of sale, made by Albert Kennedy to him, for the slaves in question, dated second day of December, one thousand eight hundred and twenty-nine, and which acknowledged in consideration therefor, the receipt of the sum of twelve hundred dollars.
    Upon this evidence, the Court below instructed the jury, that if they believed from the evidence, that Albert Kennedy sold the slaves to the plaintiff while in the minority ; and that at such sale, possession of the slaves being in Albert, passed to the plaintiff, the bills of sale, therefor being executed at that time,— the sale and bills thereof, were only voidable, and might be confirmed by Albert’s acknowledgment after he came of age : and that if the jury believed, the sale to the plaintiff was anterior, to that made to the defendant, and that it was so subsequently confirmed, — then the plaintiff’s title would be best. To these instructions the defendant filed exceptions.
    The defendant then requested the Court to charge —that if the jury believed that the bill of sale of the slaves, from Albert to defendant, was the first act of transfer of the slaves made by Albert after his maturity, — the effect thereof was to avoid any sale, or bill of sale, made by him during his minority: that all such acts and acknowledgments by said Albert, after his first act or deed after his maturity, calculated to impair, defeat or deny said first act, or deed, after maturity, should be disregarded by the jury, and all evidence relating thereto, excluded.— This the Court refused, — but informed the jury, that they might believe the bill of sale to defendant, was the first act of said Albert, after his maturity, yet if the sales and deeds to the plaintiff were subsequently acknowledged by said Albert — the plaintiff having possession of said slaves under his purchase,— the same would relate back and confirm the first sale and deeds in the order of time, though when given, voidable because of said Albert’s minority.
    It was now here assigned in error, that the Court erred in its aforesaid opinions, as expressed in the instructions given and refused.

      McClung, for plaintiff in error.

      S. Parsons, contra,
   HITCHCOCK, C. J.

— This case comes before the Court upon a bill of exceptions, to the charge of the Court given to the jury.

We think the instructions were erroneous. When a minor makes two sales of the same piece of property, during his minority — if he ratify the younger sale first, after his attaining full age, it will defeat a subsequent ratification of the former sale. This position is too clear to require illustration.

In this case, there was competent and contradictory testimony as to the túne when Albert Kennedy became of age : if, as the jury might have found, he became of age on the first of October, 1829, then his sale to Derrick, (if the jury should have believed it bona fde,) they must have found for him: but, under the instruction of the Court, they were compell-to find for the plaintiff below.

Let the judgment fie reversed, and the cause remanded.


author: HOPKINS, J.

text:
    FORREST, et al. vs ROBINSON, ex'r.

      As to satisfaction of the bond of a feme covert, out of her separate estate.

      Upon points of pleading and practice in Equity proceedings.

    1. If husband and wife enter into bond, (not stipulating a promise to pay out of the wife’s separate estate,) for the payment of the wife’s debt, -whilst she has a separate estate, by anti nuptial agreement, — Chancery will subject such separate estate to the payment of the bond, u.pon proof that the bond was given for the wife’s debt; ^nd without a pursuit of the co-obligor at law.
    2, By our statute, a demurrer to a bill in Equity is no admission of the truth of the allegations in the bill ; and it is error to enter a decree in a case where the bill has been demurred to without an answer of the defendant, or a decree pro con-fesso.

    Error to the Circuit Court of Jefferson, exercising Chancery jurisdiction.
    Nelson Robinson, as executor of the last will and testament of William Robinson, filed a bill in Chancery against John F. Forrest and his wife, Mary Ann Forrest, and James Robinson, trustee, for the purpose of satisfying a bond, signed by the defendants, out of the separate estate of the said Mary Ann.
    The bill charged, that on the fourteenth day of March, eighteen hundred and thirty-three, a settlement was had and made between orator, as executor of the last will and testament of said William Robinson, and the said John F. and Mary Ann Forrest •; by which settlement, the said John F. and Mary Ann, were found to be indebted, and in arrear to the said Nelson Robinson, as executor as aforesaid, in the sum of twelve hundred and forty-three dollars and sixty-one cents; that in consideration thereof, the said John F. and Mary Ann, executed to orator, a certain instrument in writing, under their hands and seals, in words and figures following, to wit :
    “ $1243 61- — In consideration of a settlement this day had between us and Nelson Robinson, as executor of William Robinson, deceased, by which we fall indebted to him in the sum of twelve hundred and forty-three dollars and sixty-one cents; which we bind ourselves to pay to said Robinson on or before the first day of January next, with interest from date, by the delivery to him of negroes at a fair valuation. Witness our hands and seals, this fourteenth day of March, eighteen hundred and thirty-three.
    “ John F. Forrest, (Seal.)
    “ Mary Ann Forrest,” (Seal.)
    Orator further charged, that the said Mary Ann Forrest, before her intermarriage with the said John F. Forrest, was a Miss Robinson, a daughter of orator’s testator; and that the aforesaid settlement was had for the purpose of ascertaining correctly, the amount that the said Mary Ann and her husband, the said John F. Forrest, were indebted to orator, as executor as aforesaid ; and he averred that the sum specified in the said bond was the proper debt of the said Mary Ann, — the said John F. Forrest being-only responsible as her husband — the said bond being only executed the better to secure the debt of the said Mary Ann.
    Orator charged, that the said Mary Ann, before her intermarriage with the said John F. Forrest, was in possession of considerable real and personal estate ; and that in contemplation of her marriage with the said John F. Forrest, the said property was conveyed by marriage settlement to one James Robinson, as trustee, for the separate use and behoof of the said Mary Ann: that the marriage of the said John F. with the sáid Mary Ann, shortly afterwards was consummated.
    Orator further averred, that the said John F. was altogether insolvent, and unable to discharge the said debt specified in the said bond; and that a part thereof was due and unpaid. He, therefore, prayed that the separate estate of the said Mary Ann, so secured by the deed of settlement as aforesaid, should be subjected to the payment of the said bond.
    The bill was filed to Fall term, eighteen hundred and thirty-five, and at the same term, the defendants appeared and filed a demurrer to the bill. And at that term, the Chancellor, without noticing the demurrer, as appeared by the record, decreed in favor of the complainant, subjecting the separate estate of the said Mary Ann to the payment of the debt.
    The defendants having taken a writ of error here. assigned as cause of reversal, the following grounds, to wit:

      First — The demurrer to the hill should have been sustained, and the bill dismissed-
    Second-^-There was no equity in the bill; and it should have been dismissed.

      Third — 'The allegations of the bill were not proved.
   HOPKINS, J.

— From the record of this case, it appears that an anti nuptial agreement was made between John F. Forrest, and Mrs. Forrest, who was then Miss Robinson; according to which, her real estate and personal property were conveyed to James Robinson, in trust, after the marriage should be had; that he should permit her during her natural life, to have the posseseion, use and control of the real and personal estate, to her separate use, and without the consent of her intended husband, to dispose of the same or any part thereof by deed or other conveyance during the coverture, orto devise and bequeath it as she might think fit, and that it should not be subject to any of the debts or contracts of her intended husband. After the marriage, Forrest and his wife made a bond to the defendant in error, for a sum of money, which they acknowledged in the bond to be due from them upon a settlement between them and the defendant, as executor of William Robinson, deceased, and bound themselves to pay it to him.

The bill was filed by the defendant in error against Forrest and his wife, and her trustee, to subject her separate estate, by a decree of a Court of Equity, to the payment of a balance which was alleged to be due on the bond. •

It is stated in the bill, that Mrs. Forrest is-a daughter of the complainant’s testator, and that the bond was given for her own debt; but whether the debt was incurred before or after the conveyance of her estate to the trustee, the bill does not disclose.

The defendants demurred to the bill; but it does not appear that their demurrer was acted upon by the Circuit Court. A final decree of the Court was made without proof of any fact, which it was necessary to prove, that subjected the estate to the balance claimed: upon which the defendants sued out a writ of error, and brought the case into this Court.

The plaintiffs in error object to the decree, because there is no equity in the bill. It is necessary, therefore, to enquire of the right in equity of the obligee of a bond made by a married woman, who had, at the date of it, a separate estate, to have the bond satisfied out of her estate. If relief had been asked, in the bill, on the ground the debt was incurred before the estate was conveyed to- the trustee, it might have been afforded upon a well settled prim ciple.

There' is no remedy at law, against Mrs. Forrest* upon the bond. If the bond contained a covenant to pay out of the separate estate, it would be a charge upon that fund, which no one would doubt the power of a Court of Equity to subject to the payment of the debt. The English decisions on this point, have been deemed by some chancellors and lawyers, to be contradictory. Mr. Clancy, in his Treatise on the rights and liabilities of husband and wife, admits tint the !! present state of the law in Englarid, on this pirt of the subject, seems to be this, that if a married w/nnn having sepa rate property, executes a bend or note, or any other instrument, by which she pledges herself lor the payment of money, that property will be bound by her engagement, though the instrument which she has signed does not purport to be a lien upon that estate. But on the other hand, if the demand against her arise merely from an implied undertaking, then it can not be executed out of such separate estate.” He expresses his own opinion, that correct reasoning does not warrant the conclusion, that such express engagements, without any covenant or promise in them to pay out of the separate estate, are a charge upon the separate estate ; and he states four cases, which seem to him to have' been decided on principles adverse to it. The decision in each of the cases was, that the price paid for an annuity which was Amid for some informality of the memorial, was no lien on the separate estate of the wife, who had granted the annuity. The decision might well have been made on the principle' which is settled in England, that the separate estate of the wife can not be made liable where her engagement is merely implied, and not reduced into writing.'

The engagement of the Avife to pay back the money she received for the grant of the annuity, the consideration having failed, is implied.

The anti nuptial agreement, in this case, enables the wife to act in relation to her separate estate, in every respect, as if she were sole. As she retained all the rights over the estate, which she would have had as a feme sole, the principle is equitable, we think, that allows a lien upon the estate for her written engagements. It does not diminish the protection of a wife against the power of her husband, which it is the. object of such settlements to afford. It is admitted, by those who object to the rule, that her written engagement, containing a promise to pay out of her separate estate, must be deemed a charge upon the estate. If the rule were changed, so as to protect her separate estate against the lien of bonds and other instruments, in which there was no such promise, she could as easily be induced by her husband, to enter into an engagement, containing such a promise, as she may be now, to execute a bond or note.

The rule, which we think is settled, will rarely, if ever, violate the intention of the parties. There have been but few such engagements, in which the creditor did not expect, and the wife intend, that her separate estate should be bound

A‘s the bond does not bind the person of the wife, and gives the creditor no lien upon the estate but in ° A equity, it was not necessary to pursue the remedy at x J} j i j law against hfer co-obligor, if it be true, as stated in the bill, that the debt is her own. To require him to pay it, would not be equitable. If she were his surety in the bond, the principle would be acted upon, which defers the exercise of the power of a Court of Equity to make assets, which can not be reached at law, liable for debts, until the creditor could state in his application for aid, that at the legal end of his pursuit of the remedy at law, he did not get his due.

^he statute law directs, “ that when a demurrer to a bill is overruled, the defendant who took it shall pay costs thereon, file a sufficient answer and go to trial forthwith, if the complainant require it; otherwise the bill shall be taken pro ponfesso, and an attachment issue to compel an answer.” The construction of the part of the statute to which we have referred, is, that when a demurrer is overruled,, the cause is not ready to be finally heard, and that the demurrer itself is not an admission of the truth of the allegations in the bill.. .

It was an error to make the decree before the cause had been brought, by an answer of the defendants., or a decree pro confesso, into a condition to be finally heard; nor ought the decree to have been made, without proof that the bond was for the debt of the wife. •

Let the decree be reversed and the cause remanded.

       k u¡ wu“- :i¿í

       cfííTTis* on° p nis 144; 2Atk* 69; 15 Ves. 596* 17 ib 365; 2Mer. 483- 1

       ti Brown’s '18,

         >S'


author: COLLIER, J.

text:
    PYKE vs SEARCY et al.

      As to copartnership liability.

      The competency of one co-partner to testify in a suit against the firm.

      As to the subjection of funds in the hands of distribu-tees to the payment of the debts of an estate.

      Agreements with a principal, which discharge sureties.

    1. Where A and B, being copartners, received consignment of . goods from C, up to the period of a dissolution of the firm; and A having died, B became the administrator, and C continued his consignments to B, in the firm name, and subsequently obtained a 'judgment at law against B, as surviving co-partner, on a bill filed by C, to compel payment of such judgment from B, the sureties to his bond, and the distribu-tees of A’s estate, to whom their shares had regularly passed, it was held,
    First — That the firm, under the facts, was not to be charged, in Chancery, with accounts raised in the firm name, after notice of the dissolution, on the agency alone of B.
    Secondly — That B’s-interest,/under the circumstances being balanced, he was a competent witness in the cause.
    2. Chancery will not lend its aid to enforce the payment of debts due from an estate, out of such portion thereof as has regularly passed into the hands of heirs and distributees, where the representative has committed a devastavit, until the ordinary legal remedies have’ been employed unsuccessfully, against the representative and his sureties.
    3. An agreement by one holding claims against an estate, on account of the debt of a firm (the survivor of which is the administrator,) — to arbitrate the claim, which is done, and the-award made the judgment of the Court, whereby day is given the survivor, — will operate a discharge of the administration sureties, and of the distributees, from all original liablity of the intestate, in respect to the claim.

      In error, on a decree of the Circuit Court of Madison, exercising Chancery jurisdiction.
    The bill tn this case, was fled by Samuel Pyke against Jesse Searcy, and Mary his wife, George Fe.irn, and Elizabeth his wife, John C. Burruss, heirs of Charles Burruss, deceased, Jesse Searcy, administrator of Charles Burruss, deceased, and Thomas Fearn and Henry Cook. It set forth, that during the year eighteen hundred and twenty, orator being a manufacturer of rope, bagging, yarns, &c., and a dealer generally in produce in the State of Kentucky, — consigned for sale, to Charles Bur-russ and Jesse Searcy, then being copartners as commission merchants, sundry articles of the produce of Kentucky, until the early part .of the year eighteen hundred and twenty-two, — f r which he exhibited receipts, signed in the name of the firm : that Sear-cy was the acting member of the firm ; and that in January, eighteen hundred and twenty-two, Bur-russ died, leaving the heirs, made parties to the bill: that shortly after his decease, Searcy duly became the administrator of the estate : that after Burruss’ death, orator having applied to Searcy for a settlement of the accounts, raised by the aforesaid consignments, and finding such settlement impracticable, sued out á writ to January term, eighteen hundred and twenty-three, of Madison County Court, against' the said Searcy, as surviving partner of the firm of Burruss & Searcy:, that pending the litigation of this suit, an agreement was entered into between orator and Searcv, as surviving partner, and as the administrator of Burruss’estate, by whidrthe subject of the suit was submitted to arbitration, and a judgment entered in the Court thereon upon an .award, whereby the sum of four thousand four hundred and thirty-eight dollars and forty-five cents, •was recovered against the said Searcy, as surviving "partner of the firm of Burruss & Searcy, and as ■the administrator of said Burruss, — payable in three annual instalments, with interest from the date of the award.
    Orator further charged, that upon the first of these instalments, execution issued, upon which the money was made; but that the subsequent instalments could not be collected, by reason of the entire insolvency of the said Searcy; that a large amount of real and personal estate had gone into the possession of Searcy as the administrator of Burruss; a portion of which had been sold and distributed among the heirs, defendants -to the bill: the bill therefore prayed relief, by the subjection, to the payment of the aforesaid judgment, of the funds of said estate, in the hands of Searcy, and the aforesaid distributees, f The answer of Searcy admitted the copartnership, the death of Burruss, and the receipt of bagging, rope, &c., as charged in 'complainant’s bill, but made many explanations, not relevant to the principle of the decision, and therefore not specified.
    Thomas Fearn, George Fearn, and Elizabeth his wife, John C. Burruss, by guardian, and Henry Cook, all answered, setting forth allegations not material to be stated.
    At April term, eighteen hundred aud thirty-four, the cause having been set for hearing, the Chancellor directed the trial of an issue as to the administra-» tion, the copartnership, <&c., which was tried accordingly, and the fact established, that Burruss and .Searcy were copartners until ’ November, eighteen hundred and twenty, asid that Burruss was liable on that copartnership until the nineteenth of November, eighteen hundred and twenty, and not after.

      Evidence.

    Ruffin Colman testified, that he commenced business, as a clerk for Burruss & Searcy in eighteen hundred and seventeen, and so continued until the •fall of eighteen hundred and twenty : that in March, ■eighteen hundred and twenty-one, the connection between Burruss & Searcy closed, and Burruss ceased to take part in the transactions of the subsequent affairs : that after Burruss’ death, witness had a conversation with Pyke, in which the latter complained of Searcy — asked if good for his debts, but appeared to lay no claim to an account with Burruss.
    Daniel B. Turner testified, that in August, or Sep-' tember, eighteen hundred and twenty, he informed Pyke, that Burruss & Searcy had dissolved copart-nership, and retired from business : that Pyke, after this period, however, continued to forward goods to Searcy,'sometimes in the name of Searcy & Co., and occasionally in the name of Burruss & Searcy.
    Jesse Searcy, the defendant, was also examined as a witness, against the will of the complainant, and explained the situation of accounts, between the parties. He testified to the fact, that some of the proceeds of the. bagging, rope, &c., consigned to him, had gone to pay off the debts of Burruss, his intestate; but insisted that it was done, in consequence of consignments of cotton, the property of the lote firm, to the cnuipbimuif.
    Upon a fiml hearing', the bill was dismissed : and the complainant took a writ of error:

      Silas Parsons, for plaintiff in error;

      Ormond and McClana, contra.
   COLLIER, J.

— This cause is brought here from the equity side of the Circuit Court of Madison.

From the exhibits and proof, it appears,, that from eighteen hundred and sixteen, up to the fall of eighteen hundred and twenty, the defendant, Jesse Kear-ny, and his intestate, Charles Burruss, were engaged in the mereautile business in Huntsville. At the latter period, the concern was dissolved, and intelligence of that fact communicated to the plaintiff, in the spring of eighteen hundred and twenty-one, by one who had been their clerk. In the fall of eighteen hundred and twenty, the plaintiff made consignments of bagging, rope, &c., to the firm of Bur-russ & Se trey, and continued to send J. Searcy & Co., and J. Searcy, manufactures and produce of Kentucky, up to eighteen hundred and twenty-two, to be sild up in his account, and for his benefit.

At the close of these 'transactions, between the plaintiff and Jesse Se irey, the plaintiff exhibited his account against B ¡miss & Searcy, in which he clai ned a bal mee of several thousand dollars. After some fruitless efforts at, an adjustment, the plaintiff brought an action at law against Searcy, as surviving partner of Burruss, and nfier much time spent, in litigation, without obtaining a judgment, it was agreed between the .plaintiff and Jesse Searcy, as surviving partner, and as administrator of Charles Burruss, to submit their matters of difference to the arbitrament of persons chosen by them — the plaintiff at the same time stipulating with. Searcy, that whatever sum mignt be found due him, should be paid in one, two, and three years. The arbitrators awarded, that the sum of-was due the plaintiff, and their award was made the judgment of the Court, as well against Searcy as surviving partner, as administrator of Burruss. The first instalment wTas paid on execution. On ají- fa. for the collection of the second instalment, the sheriff returned nulla bona. The plaintiff' thereupon exhibited his bill against Searcy, his sureties in the administration bond, and the distributees of the estate of Burruss, for the purpose of obtaining the benefit of his judgment, either against Searcy’s sureties, or by subjecting the estate of Burruss, which had regularly passed to his dis-tributees.

It very fully appears, that the estate of Burruss, in the hands of his administrator, was sufficient to pay all his debts, and that the administrator has been guilty of a devastavit.

Waiving the questien of jurisdiction, and the con--sideration of the exceptions taken on the trial of an issue at law, directed, in this cause, to ascertain whether the demand ef the plaintiff was chargeable upon the firm of Burruss & Searcy, and when that concern was dissolved — -we will enquire,

First — Is there enough appearing from the answers, exhibits, and proofs, to shew, that the estate of Burruss was never liable to the payment of the plaintiff’s claim'?

Second- — Can the estate of Burruss, in the hands of the distributees, be chargeable, so long as the snreties are solvent'? And,

Third — A.re not the sureties discharged by the act of the plaintiff, in varying his contract with Searcy, by giving him a longer day for payment? And if they be discharged, can the distributees be charged?

1. The merchants of Huntsville, it is said, during the years eighteen hundred and twenty and eighteen hundred and twenty-one, were in the habit of receiving for sale, on commission, bagging, rope, &c., and other manufactures and produce of Kentucky, Whether the usage was general, or extended to the entire mercantile community of the place, it does not appear; nor do we deem it material, in view of the facts of this cause, to enquire, whether it was such as to determine the liability of partnership associations, where the commission business was carried on through the agency of one partner alone, without the privity of his copartners.

The deposition of D. B. Turner shews, that the plaintiff was advised, in the spring of eighteen hundred and twenty-one, that Burruss & Searcy had ceased to do business.

The deposition of Ruffin Colman, proves, that in eighteen hundred and twenty-two, the plain tiff looked to Searcy for payment, and seemed gratified to learn, that he would receive from the estate of Burruss,. (who had died a short time previously,) ample means to enable him to meet the demands.

The deposition of Searcy himself, proves, that he had paid to the plaintiff all the liabilities of himself, or of Barruss & Searcy, accruing anterior to the period when Turner gave him notice of the dissolution: in addition,, this fact appears by the receipts of the plaintiff himself.

The manner of taking Searcy’s deposition is waived — reserving the question of his competency as a witness.

It must be immaterial to Searcy, so far as pecuniary interest is concerned, how this cause may eventuate : if the plaintiff succeeds, he is liable to his sureties, or the distributees of Burruss: if the plaintiff fails, he is still obliged to pay his judgmeut. His interest, then, is balanced, and according to well established rule, his evidence is admissible.

Conceding the question that Burruss & Searcy, up to the spring of eighteen hundred and twenty-one, were jointly liable to make good to the plaintiff all consignments made previous to that time, they surely can not be charged for any after transactions ; for then, even as to the plaintiff, who had been a previous dealer with the eoncern, there was the proper notice through Turner, the clerk, that they had ceased to do business together.

2. In respect to the second question—

In the case of Darrington, et al. vs Borland, at the last term, this Court determined, that where an ad-ministor had 'wasted the estate of his intestate, and was himself insolvent, if the sureties in the bond, given for the faithful discharge of the duties of his office, were able to respond, all legal remedies should be exhausted against them, before a party could be permitted to come into a Court of Equity, to subject the estate which had passed into die hands of the heirs and distributees. The sureties stipulate, not only that the administrator shall pay the debts, but that he shall not mismanage the estate to the prejudice of those entitled to its enjoyment; and this stipulation, from its nature, inures to all those who are beneficially interested. It thence necessarily follows, that the liability of the administrator is primary; and that when, by his misconduct, he lessens his ability to discharge it, his sureties, who have stipulated for his faithfulness, may then be resorted to : and when against all these, the ordinary reme-, dies have been employed, unsuccessfully, Chancery may then be appealed to, to compel the heirs and dis-tributees to contribute of the estate they have respectively received, to the payment of the debts. But not sooner will that Court lend its aid, unless it can be shewn that a legal remedy would be unavailing. It is not pretended, in this case, that the administrator has not wasted the estate of his intestate, or that his sureties are insolvent — but it appears very satisfactorily, from the proofs and admissions in the cause, that the administrator has wasted largely of the estate entrusted to his management, and that his sureties are amply able to repair the loss. If the principles adjudged by this Court, in the case referred to be law, and with them we are entirely satisfied, then there can be no decree against the heirs and distributees.

3. The sureties in an administration bond, as we have seen, undertake for the faithful performance of P-11 the duties which are, or may he, required by law of the administrator. The most important duties imposed upon the administrator, are the payment of the debts,—delivering over the property, and settling with the distributees; and the engagement of the sureties obliges them to see that this is done, or make good any injury which may result, if it is not done, The administrator must perform his duties in obedience to the law, as defined and established:—it is to this that the condition of the bond refers, and not to any rule which may be agreed between himseb and a creditor, or one interested in the estate. If a rule of adjustment should be agreed on between the administrator and a creditor, variant from the law and which would go to change the scope of the surety’s undertaking, to his probable prejudice, the surety would not be bound to a compliance. It is well settled, that the surety is discharged, if the creditor, without his consent, agrees to givé time to the principal debtor. Such is the doctrine of this Court, in Comegys & Pershouse vs Cox & Harris —Bibb vs Ellis —Theobald on Principal and Surety —McLemore vs Powell, et al.

A mere gratuitous undertaking to procrastinate the day of payment, will not relieve the surety from liability; but an agreement to have that effect, must be founded upon an adequate consideration. -Here, the plaintiff has agreed with Searcy, that in consideration he would submit the matters of difference between them, touching Searcy’s individual liability, and his liability as administrator of Burruss—he (plaintiff,) would take a, judgment, payable in one, two, and three years, for the sum awarded in his favor. Here, the rule of adjustment is variant from the law, — time has been given to the administrator upon a valid legal agreement, and in our judgment, the sureties are discharged.

The sureties being discharged by the voluntary act of the plaintiff, it results as a corollary, that the distributees are freed from any equitable obligation to contribute to the payment of the plaintiff’s demand — their liability being primary, and intended as well for the benefit of the distributees as the creditors.

We have not felt ourselves called upon to give to this case a more elaborate consideration, as the material quéstions have been settled by this Court, in its adjudications referred to.

It remains but to say, the decree must be affirmed

       Porter’s

      3 Stewart, 262.

      2 ,b. 63.

      1 no. L. Lib. 127, et post.

       32Wheat. 554.


text:
    HOLMAN VS. ARNETT, et al.

      ■As to the competency of a defendant in attachment to testifi/as a witness.

    1. One whose property has been levied on in attachment, is a competent witness to show a sale of the same property to a vendee, previous to the levy — it not appearing that a sale of the property has been made, and the proceeds applied to the satisfaction of a final judgment against the defendant in the attachment.
    Error to the Circuit Court of Lauderdale.
    This was trespass, vi et armis, against William Arnett, Charles Manor, Griffin Reed, and Levi Todd, for taking a wagon. The defendants plead not guilty ; and on that plea, verdict and judgment were rendered for them.
    On the trial below, the plaintiff offered in evi-. dence, the deposition of Joseph Surber, duly and regularly taken, to prove that he had sold and delivered to the plaintiff, the wagon, for the taking which the action was brought.
    The testimony of Surber was objected to, on the ground that he was incompetent to testify: and it was proved that the wagon had been levied on as the property of Surber, the proposed witness, in virtue of an attachment in the hands of Arnett. The Court sustained the objection, and refused to permit the evidence to go to the jury — on which the plaintiff took his exception.
   HOPKINS, J.

— Ill this case, the action was tres* pass against the defendants, for forcibly taking from" the possession of the plaintiff, and carrying away a wagon, which belonged to him. The defendants proved, that an attachment had been le vieron the wagon, as the property of one Surber, whose Reposition the plaintiff offered as evidence that the property was his, in virtue of a sale of the wagon to him, which the witness bad made. The Court rejected the evidence, on the ground that the witness was incompetent.

If the property had been sold under the attachment, and the proceeds applied towards the satisfaction of a final judgment in the suit against Surber, he would have been an incompetent witness for the plaintiff. The proceeds of the sale having been so applied, would give him a right to a credit for the amount on the judgment which would not be affected by the recovery of the plaintiff. In such a case, he would be interested that the'plaintiff should recover. Such a result Would not make him liable as vendor to the plaintiff, as a judgment for the defendants in the action might and would leave his right to the credit for the proceeds unimpaired.

The only ground disclosed by the record, to shew the incompetency of the witness, is, that the property had been levied on as his.- If the property had not been sold, and the proceeds applied to a judgment against him in the suit by attachment, he was a competent witness when his deposition was offered. In such a case, his interest would be as great on one side as upon the other, as he would have no right, after the recovery of the plaintiff, to have a credit for the value of the property upon the judgment in the suit by attachment

The Court erred in rejecting the testimony.

Let the judgment he reversed, and the cause re--manded.-

       Porters R.^ist ed.

       Rep.637;i i98.w'


text:
    BUMPASS, et al. vs. WEBB.

      As to the impeachment or review oj an award:

      As to error in a Chancery decree, all parties in interest not being in Court.

      1. Where parties leave a matter of controversy, to arbitration, they, nor either of them, can impugn the decision, for extrinsic causes, unless it be shewn that the arbitrators háve beerf guilty of corruption, partiality, or gross misbehavior.
    2. Improper conduct in arbitrators, in their award, maybe shewn by direct testimony, or by such a state of facts as lead the' mind to the conclusion that an award has been influenced by dishonest motives. ■
    S' To authorise the review of an award, it is not sufficient to' shew an error of judgment, or that the award has been unwiseJ ly determined.
    4. It seems, that an award respecting an allotment of lands, between joint owners, might be reviewed in Chancery, where the allotment were so disproportioned in value, as to strike the senses at once, as a matter of injustice, or showing positive corruption in the arbitrators.
    5-, If an award discover on its face, some palpable mistake of law or fact, operating greatly to the prejudice of either party, it may be impeached.
    6. Evidence, in impeaching an award, shewing a mere mistake of law or fact, in rendering the award, is not competent.

      7. A decree, erroneous, merely on account of parties in interest not being brought into- the Court below — will not be reversed —it appearing regular as to the parties taking the writ of error.
    This Was a hill in Chancery, in Lauderdale Circuit Court, and was fded by John Webb against Gabriel Bumpass. The facts and circumstances of the controversy,, as disclosed by the bill, answers, <&c., were these t '
    In the year eighteen: hundred and eighteen, one Eli W. Carr, purchased at the land sales, certain lands, consisting of fractional section twelve, town-' ship two, range fifteen, west, and the west half of section thirty, township- two, range fifteen, west, and' subsequently transferred the certificates of purchase,, after the payment of one fourth the amount of the purchase money to the defendant, Bumpass. The1 latter then sold to complainant, the one half of all the lands above described, with others set out in the bill, and executed to him a bond, stipulating a con-* veyance of the title thereto, (excepting a small part, on which was situated the town of Waterloo,) when certain expressed conditions were complied with. After this period, defendant transferred to Tyre Rhodes, John McCracken, M. H. Bochannan, Meredith Thomas, and G. Bumpass, the certificate of fractional section twelve, — as commissioners of the-town of Waterloo, who procured a patent therefor. Bumpass, also, subsequently transferred to one John Till, his son-in-law, the west half of section thirty-one, township one, range fourteen, who, before the date of the said transfer, received full notice of complainant’s interest in the said parcel of land; and who af-terwards obtained the patent' therefor. It further appeared, that on the tenth day of June, eighteen hundred and twenty-two, complainant and defendant entered into mutual covenants by which they bound themselves to abide by, and perform the award of certain arbitrators chosen by themselves, to divide the before mentioned lands ; and that in pursuance thereof, the said arbitrators proceeded to lay off and to divide said lands between the respective parties. In pursuance of the division and allotment of the •said lands, under the said arbitration, the respective parties took possession of their several parcels.
    The bill charged, that defendant, by divers combinations and fraudulent efforts, had interposed obstacles to the completion of the award; and, therefore, prayed the establishment of the award, and the interposition of the Court to effect the several allotments made by the arbitrators.
    Gabriel Bumpass and John Till answered — the former,’! principally relying, for his defence, upon a charge of partiality and unfairness in the arbitra-tration.
    It appeared by the record, that subpoena was served alone on Bumpass, the defendant; and that no proceedings were had against several of the parties charged in the bill as materially concerned in the transactions.
    The Chancellor below decreed, establishing the award, and vesting in the complainant and defendant the title to the several allotments made by the arbitrators; from which decree, Bumpass alone, took a writ of error to this Court.

      He here assigned, as error—
    First — rThe decree confirming the award.
    Second — The vestiture of title, out of the plain» tiff in error, in a portion of the lands.
    Third — The proceeding without necessary par» ties.
    Fourth — The proceeding without regularity against all the parties charged.
    Fifth — The refusal of the Court to dismiss the hill.

      S. Par-sons, for plaintiff in error.

      ¡Stewart and Thornton, contra.
   COLLIER, J.

— The defendant in error, (who was plaintiff below,) became jointly interested with the plaintiff, (in error,) Gabriel Bumpass, in certain lands purchased of the general government, under the credit system. In ’22, before full yayment had been made, they agreed to submit to the arbitrament and decision of certain persons, chosen by them, the partition of these lands — Bumpass entering into bond to stand to and abide the decision of the arbitrators. The arbitrators accordingly made their report, — particularly designating the respective parcels of land allotted to the parties. Bumpass, disregarding their decision, transferred to John Till, his son-in-law, the certificate of purchase, for an half section of the land, at the same time informing him that the award was so unequal and unjust, that it never would be car» ried into effect. The certificate of purchase for another parcel of the land, by agreement, between Pumpass and the defendant in error, was transfer-ed to Tyree Rhodes, John McCracken, M. H. Bu-channan, Thomas Meredith, and Gabriel Bumpass, as trustees, to lay off and sell lots for a town. The remaining parcel of land was purchased of the defendant in error, for the joint benefit of himself and Bumpass : and he is now ready, as he states, to .convey' to Bumpass, his interest under the award. ■The title to these several parcels of land have passed from the United States. To the first, it vests a title in Till; to the "second, in the trustees we have mentioned; and to the third, in the defendant in error. It further appears, that at the time Till became •the assignee of the certificate from Bumpass, that the defendant in error was in possession of the land .allotted him by the award.

On this state of facts, the defendant in error exhibited his bill; — the object of which is to give effect to the partition made by the arbitrators. Tyree Rhodes and Thomas Meredith are alleged to be dead. The other trustees, with John Till, are made parties; but nothing said as to heirs, &c., of Rhodes and Meredith, or whether, they have left any.

Many depositions appear to- have been taken by ■the plaintiff in error; all of which, merely prove, that the lands allotted to Webb, by the partition, are of greater value, than those assigned to Bum-pass.

No proof was taken by the defendant in error.

It does not appear that subpoena was served on defendants below, Buchanan and Meredith, or that publication was ever made — though there was an order for that purpose. Bumpass and Till alone have answered. The decree of the Court gives effect to the partition made by the arbitrators, not only ás against Bumpass and Till, but also against all the Trustees named, as well those who are'dead, as those who are living, at the cost of Bumpass and Till. .

From this decree, Bumpass alone prosecutes a writ of error to this Court.

Where parties constitute a tribunal of their own choice, by the selection of individuals, (as they have here'done,) for the adjustment of a matter of difference between them, neither party can impugn the decision that may be made, for extrinsic causes', unless it is shewn that the arbitrators have been guilty of corruption, partiality, or gross misbehavior.— This may be proved by evidence direct, or by such a gtate of facts as lead the mind to the conclusion, that their award was influenced by dishonest motives. It is not enough, to show an error of judgment, or that the matter of difference was unwisely (tptpprnined ueuiimmeu.

Now it may be true, that the parcels of land assigned to the defendant in error, may' be far more valuable, in the opinions of most men, and yet not follow, that the arbitrators acted otherwise than vvith the strictest integrity of purpose.

If, however, the disproportion in value, in the respective allotments of land, was so great as to strike the common sense of every man, that there was positive corruption in the arbitrators, or- an utter recklessness of the achievement of justice between the parties, certainly a Court of Equity should liesr-. tate long before it would give effect to a partition thus made.

If the award discovered on its face, some palpable' mistake of law or fact, which, operated greatly to the prejudice of one of the parties, the party aggrieved might successively impeach it — (See cases cited' above.) — But it is incompetent to show by proof, a a mere mistake of lam or fact — Pleasants, et al vs. ROSS ..

Equity has often refused its aid to compel the specific performance of hard and unconscionable contracts for the conveyance of lands. And if an obli-geej in a bond for the conveyance of title, where the contract is of that character, were to attempt to coerce a performance, Equity, in general, would leave him to his legal remedy upon the penalty.

It is not pretended, that the contract between BuhF pass arid the defendant in error, is obnoxious to any legal or equitable objection, but only that the award made to effectuate that contract, inflicts upon Bum-pass severe injustice.

The conclusiveness of the award, (except for the' causes we have mentioned,) precludes the enquiry, whether a performance would be hard or unconscionable, unless it were first successfully attacked by some cause distinctive to its validity. So far, then, as the merits of this cause are concerned, we can discover no error. The decree is, however, erroneous, for not bringing in, either by personál service of subpoena, or by publication and judgment pro confesso, the defendants, Buchanan and McCracken. It is also erroneous for not making the heirs of Rhodes and Meredith parties to the bill or else shewing that they had none. These were all material parties : they have the legal title to a part of the land in controversy : and to divest it, it is indispensable that they should be brought in. Bat, in as much as Bum-pass is alone complaining, and as to him and Till, the decree is regular — Till becoming a transferree, of a part of the land, with full notice of the claim of the defendant in error, — occupies, in all respects, the situation, that Bumpass would have occupied, had he retained the legal title.

In this view of the case, the decree is affirmed'..

       297;?jeohnl i Wasic^ ii;iib.i56

       t?Henn,& Munf.408.

      1 Wash/