author: By Mr. Justice Saffold :

text:
    Administrators of Booker vs. Hunt & Condry.
    After entering appearance and joining in error, it is too late for a party defendant to object, that an administrator or executor has been made a party plaintiff, to a writ of error.
    There was a motion made in the Supreme Court to dismiss the writ of error in this case, on the ground that the «lérk of the court below had no authority to issue the writ .of error at the instance of the administrator, the party defendant being dead.
    Hopkins, for defendant in error—
    Insisted on this motion, inasmuch as that Booker, the defendant to the judgment below, being deceased, his administrator could not make himself a party without praying scire facias — and cited Atkin’s Dig. 256 — 2 Steioart, 462— Atkin’s Dig. 237, 259.
    Ormund, and Peck, contra.

    This case differs from the one read from Stewart. — The court has, in that case, only decided, that administrators cannot be made defendants by the act of the clerk. An administrator has surely the right,to volunteer himself a party. But independent of this, the appearance of the party, and its continuance for several terms, precludes a motion to quash.
    The court will not sustain the motion, as it is every days’ practice for an administrator to make himself a party, on producing his letters.
   By Mr. Justice Saffold :

Motion by the defendants’ counsel to dismiss the writ of error, on the ground, that Booker is supposed to have died after the rendition of the judgment against him, in the court below, and his administrator was made by the mere act of the clerk, in issuing the writ of error in his name, in the recess of the court; which is supposed to be a judicial act to which the clerk was incompetent. It appears, however, that the case has been several times in this court, and continued ■from term to term for hearing on a joinder in error. By a statute of 1814, the Judges of the Supreme Court, and each of them, had authority to issue forth writs of error to the inferior courts of law and equity — to remove any judgment or decree, either at common law or in chancery, int® the Supreme Court for revision. Subsequent acts, autho-rise the clerks of the inferior courts, in which final judg- or decrees shall have been rendered, on the applica- ... , . , .... tion or the party or his attorney, to issue the writs or error returnable to this court, and also to issue a citation to be served on the opposite party, to appear in this court. Thus the power, which, in contemplation of the former statute, as well as the common law, was to have been exercised, by the Supreme Court, or the Judges thereof, to issue writs of error, has since been conferred on the clerks; and the clerks of the inferior courts, in which the judgments or decrees have been rendered, are constituted quo ad hoc, officers of this court. It' may also be observed that this form of issuing writs, which, according to the fiction of the former laws, purported to have been done by the authority of the court, by making .the writs bear test as of the last preceding term* (implying the exercise of judicial power,) has, by a later statute, been modified; it is now’ required, that all writs returnable to any court of record, shall bear test on the day on which the same shall be issued. Whether the issuance of writs for the revival of judgments and obtaining execution from the circuit and county courts, for or against heirs or executors and administrators, where one or both the parties to the original judgments, have'died subsequent to the rendition/thereof; would require the exercise of a power less judicial than the., issuance of' a writ of error in a case like the present, and whether the clerk is competent to the act, would seem to be a question worthy of consideration in a proper case. It is true, that in the case of Sewall vs. Bates’ Administrators, this court ruled, that when a party has died, after a judgment against him in the court below, the'clerk cannot, on the production of letters of administration, issue á writ of error, and thereby make the supposed administrators defendants thereto.; and that a writ thus issued, would be quashed on motion. It is to be remarked, however, in that case, that the citation had not been served on the supposed administrators, nor did they join issue on the assignment of errors, or enter any appearance implying a waiver of the exception. They moved the court.to quash the writ of error, this at the return term of the writ. The court then granted the moiiou, but declined to prescribe any definite rule of practice for future cases; the Judge who delivered the opinion, remarking, that he had not had an opportunity of examining authorities to enable him to determine, nor had any been cited by counsel; but he inclined to the opinion, that the ap-< plication should in the first instance be made to this court. Under these circumstances, when another case shall occur, necessarily involving the same question, it will become our duty to investigate the subject, and to adopt a permanent rule of practice, unless, in the mean time, another depart-, ment of the government shall deem it worthy of legislation. , This, however, is viewed by us as a different case, by reason of tho defendants’ acquiescence — amounting to a waiver of the right to object. After entering tiisir appearance, joining in error, and a continuance of the cause for several terms, it is considered too late for the defendants in the writ of error, to except to the manner in which the party plaintiff was so constituted, without any other showing that he is not the proper personal representative. Whether the authority to make the representative a party plaintiff, be different from that in relation to a defendant, as suggested in argument, wo express no opinion. As respects our decision in Whitaker vs. Patton’s administrator, et al, to which reference has'been made in support of this motion, it is sufficient to say, we think the two cases clearly distinguishable. There, several of the defendants to the writ of error, (and who had been ais o defendants below,) had l>een treated as minors,. and a guardian, ad litsm, had been appointed to represent them; he had joined in the plea as their legal representative, and in the judgment to be reversed, was a material party; but, in the writ of error, his name was entirely omitted— leaving the minors wholly unrepresented in this court. The appearance entered in this court, and the joinder in error, could only be viewed as the acts of the defendants, in the writ of error. The minors were incompetent to do any such act, so as to make it binding upon them ; and it is at all times the duty of the court to protect them against a sacrifice of their rights. Here we cannot know that any mis-joinder or non-joinder of the proper parties exists ; exception only is taken to the mode of constituting the party plaintiff, and that has been waived in the manner mentioned.

The motion must,' therefore, be overruled.

       Aik. D. 237

       Aik. D. 256

       Aik. D. 279

       2 Stew. 462

       See pnges 9


source: Caselaw Access Project

author: By Mr. Chief-Justice Lipscomb :

license: Public Domain

text:
    Samuel Harkins vs. James Clemens.

      Error from Limestone Circuit Court — Before the Hon. John White.
    Where an execution has been returned by the proper officer into the clerk’s office “ satisfied,” the clerk, on the ground of a mistake, cannot issue a new execution in the same case, without the action of the court being first had thereon.
    This case came up on errors assigned in the determination of a supersedeas. A judgment had been obtained against Harkins as sheriff, for failing to return an execution.
    James Clemens had recovered a judgment at March term, 1824, against one David Low, et al, for $476, on which an execution went into the present plaintiff’s hands. It appeared, that before the motion was made against Harkins, the defendant Low, had made a payment to Clemens of five hundred dollars, and to the clerk of all costs charged against him. Judgment was subsequently rendered against Harkins, on motion, for the amount of the debt, and ten per cent, damages, and on this judgment an execution went into the hands of the coroner. The coroner having returned this execution into the clerk’s office as “ satisfied,” the clerk afterwards issued a new one against Harkins, which he filed his petition to supercede. On the final hearing of the cause below, the court dismissed the injunction, and a bill of exceptions was taken. The point involved in this cause, was, Whether the clerk has authority to issue an execution in a case, on which, one has been returned “ satisfied,” without the action of the court ?
    Ormond, for the Plaintiff.
    The brief states this case fully. The question is, Was the last execution properly issued by the clerk? A judgment was obtained against the sheriff, on motion, with damages; and after one execution had been returned into the office, satisfied, the clerk took upon himself to issue another.
    McOlung, and Hutchison, contra.

    The execution purporting to have been satisfied, does not contain a true statement. Now, if a clerk issues an execution for less than the amount of a judgment, by mistake, cannot he rectify it ? And how is he to do this, but by issuing a subsequent execution. The record shews this state of things. The clerk is bound to issue a correct execution, and thus regulate the sheriff in collecting the money. The sheriff here charges, that the money was paid by the original defendant, and produces receipts. , These receipts show a minus of a considerable sum.
    Ormond, in reply.
    The counsel insist, that the court must presume the clerk has done nothing more than his duty, in the face of the petition, which is on oath. The question simply is, could the clerk issue an execution, while one against the same defen- ■ dant, and in the same cáse, was in his office, returned satisfied ?
   By Mr. Chief-Justice Lipscomb :

An application was made by the plaintiff in error, to su-percede an execution sued out against him, in favour of the defendant. The supersedeas was granted, but at the next succeeding term of the court to which it was returned, it was quashed, and the execution re-inr.tated. it seems that a fieri facias had been placed in the hands of the plaintiff in error, as sheriff, against one David Low, and others, in favor of the defendant Clemens. This fi. fa. was not cotis-fied, and judgment was recovered against the plaintiff, cn motion. On this judgment an execution was sued out, placed in the hands of the coroner, and by Ura returned satisfied. Afterwards, an alias fieri facias was issued by the clerk on the same judgment, which the plaintiff in error sought to have quashed, but was .overruled by the court below. ■ The refusal of the court to quash the execution against the plaintiff,' is assigned for error. From the record before us, it would seem, that the judgment before us had been more than satisfied by the first execution, returned by th'e coroner. It is, however, suggested, that the execution was not sued out for the proper amount, -and that the coro ner, although he had returned it satisfied, bad-received but a small part of the amount that it called for. It is not unreasonable to presume, that there has been some mistake made by the clerk. The amount of the debt due by Low and others, to Clemens, with interest at the time judgment was rendered against Harkins, the sheriff, was something more than five hundred dollars; a rsmitteler was entered for five hundred dollars, and the execution put in the hands of the coroner, and returned satisfied, was for something less than five hundred dollars : which, when added to the amount remitted, would make between nine hundred and a thousand dollars — a sum greatly exceeding what could have been legally recovered, even if ten per cent, damages had been allowed on the amount remitted, at the time the judgment was rendered against the sheriff. But if there is a mistake in the record, and this sum of more than nine hundred dollars has not been paid, it required the action of the court below to correct the mistake, and the clerk was not permitted to issue another fieri facias on the same judgment, when full satisfaction had been returned on the first. The second execution was, therefore, improperly issued, and ought to have been quashed.

The judgment is therefore reversed.

This judgment, however, will not prejudice any application, in the court below, to correct any mistake that may exist.


author: By Mr. Justice Thornton :

text:
    Frederick Culp vs. The State.

      Error from Madison Circuit Court — Before the Hon. Joshua L. Martin.
    At common law, a chose in action is not the subject of larceny.
    Under a statute making “ promissory notes” the subject of larceny, an indictment for larceny of “ bank notes” is not sustainable.
    An indictment for larceny of “ bills of credit on the United States Bank” will not lie on its appearing that the amounts charged were less than the Bank of the United States is authorised to issue by its charter.
    A count in an indictment, charging generally, the larceny of •* bills of credit,” is bad ; the state having no authority to issue such choses in . action.
    This was an indictment for larceny.
    The indictment charged the prisoner in three several •ountx.

      1st. With having stolen, taken and carried away, seven paper bills of credit, on the Bank of the United States, to the value of three hundred and ten dollars.
    2d. With having stolen, taken, and carried away, seven bank notes on the United States Bank, to the value of three hundred and ten dollars.
    3d. With having stolen, taken, and carried away, seven paper bills of credit, to the value of three hundred and ten dollars.
    Upon this indictment the prisoner was convicted. A motion was made in arrest of judgment, on the ground, that the instruments, set out and described in the indictment, were not subjects of larceny at the time of the alleged commission of the offence.
    The motion was overruled, but the court below reserved the point'as novel and difficult.
    McClung, for Plaintiff in error
    — Cited Aildn’s Dig. 23— Coke’s Rep. 8 vol. p. 33 — 4 Blaek. Com. 188 — East’s C. L. 2 vol. 597 — Aikin’s Dig. Í03 — 12 Johns. 220.
    P. Martin, Attorney-

    General^-Cited 2 Stewart, 11 — 2 East’s C. L. 598.
   By Mr. Justice Thornton :

This case is referred to this Court, according to the practice in such cases, after finaljudgment was pronounced, as involving a question of criminal law, which was deemed novel and difficult.

This indictment consists of three counts. The first is for a larceny of seven paper bills of credit on the Bank of the “ United States, amounting in the whole, to a certain sum of “ money, viz: the sum of three hundred and ten dollars, and “ of the value of three hundred and ten dollars.” The second count, is for a larceny of seven bank notes on the “ United States Bank, for the payment,” &c.; and the last, is For larceny “ of seven bills of credit, for the payment of “ divers sums of money, amounting, in the whole, to the sum “ of three hundred and ten dollars, and of the value of three" “ hundred and ten dollars.”

The doctrine is clear, that at common law, a chose in action is not the subject of larceny. This indictment then, cannot be sustained, unless some act of our legislature embraces the chose in action, as described, and alleged to have •been stolen in some one of the counts ; and unless too, such chose in action as described, can have a legal entity as a matter of value. Tested by these principles, the first count is •clearly defective: for, by referrence to the charter of the Bank of the United States, it appears that the institution is expf'essly inhibited from issuing bills of credit of the amount or value of those described in the count, so that there cannot be in contemplation of law, any such subject matter of larceny as is there set forth.

The second count can only be maintained, by deciding that “Banknotes of the United States Bank,” are, in contemplation of law, embraced in the words promissory notes for the payment of money” in our act of 1807. If bank notes” and “promissory notes” were identical in their signification, it might perhaps be justly considered more nice than wise, to say, that an indictment for the former could not be sustained ■under the act creating the larceny of the latter. But when the points of resemblance between them are so unimportant, •compared with their characteristic' distinctions, we feel no hesitancy in coming to the conclusion, that it would not. Logically speaking, “ promissory note” may be said to be a generic term ; and “ bank note,” as having some attributes or properties in common with it, to be a species of it — as man and hor&e may be said to be species of .the generic term, animal. The question here, however, is not one of logical classification. It is simply, whether the two subjects are not, both in legal apprehension and common acceptation, so different, as to authorise the deduction, that the one was net embraced by the other, in contemplation of the legislature. The opinion of the legislature, as to a matter of law, is not of any binding authority, as was suggested in argument; but where the intention of the law-maker is the object of inquiry, it may not be wholly unprofitable to consider the course of legislation upon the point. In England, the act of Geo. II, extending the common law offence of larceny so as to embrace choses in action, includes bank notes, eo nomine, as well as promissory notes. Our act of 1807, on the same subject, omitted the former, but supplied the omission by the statute of 1881. This course of legislation, though by no means conclusive, is, however, persuasive of the opinion we entertain, that the second count is also defective.

The last count, is for larceny of “ seven bills of credit,” describing them as above set forth, as of the value, and of the amount of three hundred and ten dollars. The stealing here alleged, is of a subject matter, which we must know judicially, does not exist. By the constitution of the United States no such chose in action as bills of credit, can be emitted by the states ; and the power to create them, which bélongs to Congress alone, if it exist any where, has only been exercised in favor of the Bank of the United States, where they are required to be of a specified amount, which is different from that of those described in the count.

Let the judgment be arrested, and the prisoner discharged.


author: •By Mr. Chief-Justice Lipscomb :

text:
    Asa McKenzie, Adm’r vs. Hunt & Condry.

      Error from Lauderdale Circuit Court — Before the Hon. John White.
    The declarations and acts of a vendor, as to the ownership of property which he has conveyed to another, cannot be given in evidence, to defeat the right of his vendee.
    A vendor is a competent witness to prove' the fairness of a sale he has made.
    This was a case, under the statute, for the trial of the right of property. The record disclosed, that the defendants in error had originally obtained a judgment against one Brice M. Mayfield, whereon a fieri facias had regularly issued. The sheriff returned on the execution that he had made a levy to satisfy the same on certain personal property desciibed in his return. Before a sale had been effected, of the property levied on, Booker claimed the same as trustee to a deed of trust, executed between the said Mayfield and one Asa McKenzie. On the trial of the cause, it appeared in evidence, that the property in question had been sold by Mayfield to McKenzie, for whose use it was claimed by Booker, as trustee. It further appeared in evidence, that by the agreement of sale, the said Mayfield was to retain the possession of the property for a stipulated period.
    The plaintiff in execution offered evidence to show that Mayfield proposed to part with some of the property in question, after the sale, and without consulting either McKenzie or Booker. He also offered to give in evidence the declarations of Mayfield, as to the ownership of the property aftqr ftk* sal*. To all of which the claimant objected.

      The court overruled the objections, and permitted the evidence to go to, the jury, as circumstances which they might . consider, in connection with others, in determining whether the sale from Mayfield to McKenzie, was fraudulent, as to Mayfield’s creditors, or not. ' The court charged, that the circumstances were of themselves slight, and entitled to but little weight; but as it was out of the ordinary course of affairs for a man to offer to sell what was not his own, the jury . might well consider the facts, and give them what weight they were- entitled to. The plaintiff in error excepted to this charge and opinion of the court, and assigned for error, that-the-declarations of Mayfield, together with his-acts, as set out in the bill of exceptions, should have been excluded from the jury.
    Ormond, for Plaintiff in error
    — 1 Stewart, 198*
    Hopkins, contra.

   •By Mr. Chief-Justice Lipscomb :

This was a trial of the right of property in the court be1* low. The defendants in error were plaintiffs in an execution against one Bripe M. Mayfield, and caused the execution to be levied on certain property in the possession of May-field, which was claimed by one Booker, as trustee, to whom it had been-sold by Mayfield, to secure a debt due from him ' to McKenzie, the plaintiff in error. By the deed of sale it was expressed, that the'property should remain in the possession of Mayfield, the vendor; for a stipulated time. On the trial of the right of property, the plaintiffs in the execution, were permitted by the court, to givé in evidence the declarations of Mayfield, as to the ownership of the property, and that he had offered to séll a part of it after he had conveyed it to Booker; but that these declarations and offer to sell, were not known to the trustee Booker, nor to McKenzie, for whose use the property had been conveyed. The court below, in admitting this testimony, charged the jury .that they might take it into their consideration, as circumstances slight in themselves, blit entitled to-such weight in whether the conveyance to Booker was fraudulent or not, as they might think proper to give it. The objections to this testimony are, that it is secondary — not by a party to the suit — and that the declarations were made by one who was ,a competent witness. I am aware, that the practice of the courts authorises a great deal of latitude in the admission of testimony, where the question is on the fraud or fairness of the transaction; and I am inclined to the opinion, that under some circumstances, the declarations of the vendor, or his acts, would be admissible evidence to impeach the, fairness of the sale. If these declarations were a part of the res gesta, and made whilst the sale was being made, or the offer to sell as his own property by the vendor after the contested sale, to the claimants of the property, had been given by way of impairing the credibility and weight of the vendors’ testimony ; it seemá to me that it would have been proper to admit it. Mayfield was certainly a competent witness to prove the fairness of the sale he had made, and if the claimants of the property had introduced him for that purpose, it would have been the privilege of the plaintiffs in the execution to destroy his credibility, if in their power — and in doing so, it would have been competent for them to have proved that his acts and declarations were inconsistent with the truth of what he had sworn. In the case of Martin vs. Kelly, this, court ruled, , , ■, , • „ , . „ J , that the declarations or the vendor after sale, could not be given in evidence to defeat the right of the purchaser. This is a case very much in point. We are of opinion, that although the testimony was admitted under great restriction and caution by the court,'the circumstances of the case did not render it admissible at all, and that it ought to have been rejected.

The judgment must be reversed, and the cause remanded.

       1 Stew. 198


text:
    John Williams vs. Thomas B. Murphy.

      Error from Madison Circuit Court.

    Where a review is sought of the matters of a decree in chancery, in the absence of error obviously on the face of the former decree, there must be new and material matter pressing upon it, which has arisen, or been discovered at too late a period to have been made available, by proper diligence on the former hearing, to entitle a party to redress. But where the directions of a former decree have not been complied with, according to a just interpretation of their object and intent; or if a material matter might have been adjusted by the former decree, and was supposed to have been done, but by the artifice or evasion of the party complained of, has been omitted, or defeated — these are proper subjects of review, and chancery will interfere.
    In this case, Thomas B. Murphy filed his bill for review and injunction, against John Williams; alleging that sundry matters in controversy between these parties, had been referred, with the proceedings on a former bill, filed by him, Murphy, to arbitration ; that an award was rendered, and by agreement, made the decree of the court, that Murphy should pay . to Williams the sum of eight hundred dollars ; and that Williams should place in the hands of a person designated for that purpose, certain notes and accounts due to the firm, to be collected for their joint benefit: that at the time of the said arbitrament and decree, Williams had induced the complainant to believe that all the debts for which he was liable as a partner, had been paid, but that he after-wards discovered that a debt of three hundred dollars to be collected by the firm for a person in Philadelphia, still remained unpaid against him ; having been received by Williams, and applied to his own use: that Williams had not transferred over the notes and accounts due to the firm, *c before-decreed, but had fraudulently conveyed his property, and was a resident of another state. He therefore prayed a review and modification of the former decree, and an injunction against the collection of the sum previously decreed against him. On a final hearing of the cause, on the bill, answer, and exhibits, it was ordered and decreed that the injunction be rendered perpetual as to the collection of three hundred dollars, which final decree, Williams now brings into this court, on assignments of error.
    S. Parsons, for Plaintiff.
    Hopkins, contra.
   By Mr. Justice Saffold :

This cause having been' submitted, without argument, on voluminous documents, few of which are entitled to influence in the decision, such only will be noticed as are considered material to the present determination.

This bill having been filed by Murphy, alleges, among other things, that the matters in controversy, which related to the settlement of the partnership transactions between these parties in Kentucky, so far as the facts were then known, were referred, with all the proceedings, on a former bill filed by him, to arbitrationt — hat this was under an agreement and submission, that the award to be rendered should be made the basis of the decree in said chancery suit; that accordingly it was awarded, and thereupon decreed, that Murphy should pay to Williams (besides the amount of a judgment which had been enjoined) eight hundred dollars ; and that the latter should deliver to Samuel McKee, of Kentucky, or such other person as he should designate, all notes and accounts due to said firm, amounting to thirty-seven hundred dollars, (according to an exhibit made by Williams in this suit,) to be collected by said McKee, or such other person, for the joint benefit of both partners ; that at the time of said arbitrament and decree, the complainant Murphy, was induced by Williams to believe, that all the debts for “which he was liable, as a partner, had been paid, but he af-terwards discovered that a considerable amount remained unpaid, for which, he, as one of the firm, would be ultimately. liable. He charges, that a debt of about three hundred dollars, collected by the firm for S. Tams of Philadelphia, which was received by Williams and applied to his own use, and not carried to the credit of the late firm, remained thus unpaid (and which is understood to be t, e item on account of which the throe hundred dollars, hereinafter mentioned, was enjoined by this bill) — Murphy also charges, that so far as he had been informed, Williams had not complied with the requisitions of the former decree, by delivering over the notes and accounts to McKee, or any otlier, which as he conceived, was intended by the decree to be performed as a con-' dition precedent to Williams’ right to collect the eight hundred dollars, which had been decreed to him as aforesaid. He also alleges his information and belief, that Williams was insolvent, or had so fraudulently conveyed and covered his property, as to bid defiance to the law. He also charges, and makes reliance on the fact, that Williams is a resident of another state, so that should he make further collections, being without the jurisdiction of the court, he complainant would be without remedy. The complainant, therefore sought a review of the proceedings in his original bill, and in conjunction with the new matter herein referred to, asks, that the former decree should be so modified as to secure him in the premises, and in the meanwhile, that the collection of the sum previously decreed against him should be enjoined, &,c.

. Williams’ answer denies the existence of any grounds for a bill of review — insists, there is no palpable error in the face of the original decree, or subsequent discovery of any written evidence of new facts, that would have been material in the trial-of the cause prayed to be reviewed — except the alleged insolvency of Williams, and his non-compliance with the decree ; botb of which, he "says, are utterly false. He adds, respecting his solvency, that he is able to pay whatever the complainant may be entitled^ to from him. He avers, that" he had placed all the partnership notes and accounts in the hands of McKee, exhibiting a schedule thereof, amounting to something over the thirty-seven hundred dollars "aforesaid— but that McKee being much engaged ill other business, and about to leave Kentucky, he had deposited said notes and accounts with him, Williams, requesting, that during his absence, he would safely keep and endeavor to collect them, both of which he had done. He admits, that the debt alleged to be due to Tams, still remained due, and says he would thank Murphy to pay it; that the greater portion of the debts and accounts due, he cannot hope to collect, &c.

At a subsequent" term, a heariug was had on the bill, answer, and exhibits, when the injunction was dissolved, and by consent of parties, the cause was set down for final hearing, with leave to take testimony. At a still later term, it' having been made appear to the court, that McKee, the former receiver, as aforesaid, was dead, the court appointed H. Owsley.in his stead, and ordered, that Williams should put in his possession the unsettled notes and accounts due the firm, of tha t he should execute to Murphy a bond with surety for the faithful application of the debts he might collect— which latter was done. At the October term, 1830, on a final hearing, on bill, answer, and exhibit, it was decreed, that the injuncion be rendered perpetual as to the sum of three hundred dollars, and that the complainant] recover his costs.

It is sufficient to notice such only of the assignments of. • error, as bring into review this final decree.

So far as this is to be regarded merely in the light of a bill of review, the principles as recognised in the case of Caller Malone, and in Bradshaw, Adnir, and Garrett and Wife, decided in this court, are justly applicable to this case , also. In the absence of error obviously on the face of the for*' mer decree, there must be new and material matter pressing upon it, which has arisen, or been discovered at too late a pe- “ riod to have been made available by proper diligence on the former hearing. If, however, the directions of the former decree have not been complied with, according to a just interpretation of their object and intent; or if a material matter might have been adjusted by the former decree, and was supposed to have been done, but by the artifice or evasion of the party complained of, has been omitted or defeated, and which his fiduciary capacity enabled him to effect, chancery is competent to afford redress.

If, by reason of the intimate connection between the subjects of this bill, and the former — rendering reference to the other unavoidable in reaching the merits of this, the present bill has assumed, in some degree, the title or character of a bill of review, when it embraces objects sufficient to sustain an independent bill, it is competent for the court to regard it according to its'true nature, and to afford relief so far as the rules of chancery practice will allow. As the hearing in this •case has been had on the bill, answer, and exhibits ; and from the nature of the facts, they are presumed to be perfectly within the knowledge of the defendant, and as he has answered in relation to them, admitting some, or answering evasively respecting them, and denying others, but requiring no proof of any, the allegations of the bill are to be taken as true, except so far as denied. One of the main objects of the present bill was to obtain indemnity, by means of the injunction on the eight hundred dollar decree, against the debt due to Tams, which, as is alleged, Williams had induced the complainant to believe had been paid previous to the former decree. The arbitrament and decree appear to have proceeded on the supposition that this payment had been made; and from the admitted nature of the debt, and the situation of Williams, he being the partner to whom had been entrusted the settlement of the concern, it was incumbent on him to have made the payment, and this should have been done out of his individual funds. He does not pretend to deny the allegation, that the money received, which created the liability, though charged to the firm, was applied to his' own individual use. He admits, that it remained unpaid, and does not deny but that it is a just demand against himself individually, but for which the eompiainant remains equally responsible to Tams ; nor does he aver, that there was any express determination by the award, or previous decree, concerning it, or deny that he pretended it was paid. It is also to be observed, that the pretended performance of the original decree, in respect to transferring the collection of the notes and accounts to another, bears the aspect of evasion. It does not appear that McKee, or1 any other than Williams, ever entered on the execution of this trust; but that there may have been a formal delivery and re-delivery of the papers between Williams and McKee, the cause for which, as stated in the answer, was, that McKee had not sufficient leisure, and was about to be absent from Kentucky, so that in fact there was no transfer of the trust from Williams, who had been declared an improper person to exercise it. The cause assigned for the failure was insufficient in its nature, and in the contemplation of the chancellor who ordered the change. The transfer was directed to be made to McKee or such person as he might appoint — a faithful observance of the requisition would at least have suggested to Williams the propriety of proposing to McKee to designate a different person, as authorised by the order, and which it may be presumed he would have done. As respects Williams’ alleged insolvency, his answer is not entirely satisfactory. Though he denies it by a general negation, and says that he will be able to pay any amount that the complainant may be justly entitled to recover of him, this is not an averment of an abili- ' ty to pay what the complainant alleges to be due. He does not answer the charge of having conveyed and covered his property in order to secure him; nor does it follow from the averments of the answer, that Williams was, at the time, a safe receiver of the amount due on the schedule of accounts, as exhibited by him ; for if it be true, as he says, that the “ larger portion thereof is not likely to be recovered, still the amount to be received, might be twelve or fifteen hundred dollars, one half of which would belong to complainant, after being indemnified against the Tams debti It is also to be observed, that under the proceedings in this bill, a bond with surety has necessarily been taken from Williams, for a faithful application of the moneys to be collected by him, which being a part of the object of the bill, gives to it an additional claim to the sanction of the court. In this view also, may be regarded the consent of Williams, after the dissolution of the injunction granted upon it, to set down the cause for final hearing. But the final decree goes further than the object of indemnifying ,the complainant requires. It perpetually enjoins the collection of three hundred dollars of the amount of the decree against Murphy, as though he had paid the debt to Tams, which was equitably due from V\ illiams alone, such not being the state of the case, but, so far as the record shows, the debt yet exists against both the ¡parties, the complainant can be sufficiently indemnified by a qualified or temporary injunction, until discharged from this liability — and to this, under all the circumstances, I consider him equitably entitled.

It is therefore considered, .that the decree rendered below should be so amended, as to enjoin the collection of the three hundred dollars only, until the clerk of the Circuit Court, acting as master in chancery, shall receive satisfactory evidence of the payment by Williams of the debt due to Tams, as aforesaid; or until he, Williams, gives bond and surety, residing in Madison county, to be approved of by said clerk and master, to indemnify said Murphy against all future liability on account thereof; and that Murphy pay the costs of this court. This is the decision of the court.


text:
    Elizabeth Bradshaw, et al. vs. Lewis Garrett, et ux.

      Error from Lawrence Circuit Court — Before the Hon. S. L. Perry.
    A bill of review may be granted either for errors of law apparent in the decree sought to be reviewed, or for the discovery of new matter.
    As a general rule, no review ought to be granted of a fact .previously in issue, on account of newly discovered evidence ; unless that evidence • be in writing, or on record, and does not consist in swearing alone.
    While this rule will be applied to the situation occupied by parties, it must appear that they have done every thing which can reasonably be required, to avail themselves of new matter during the pendency of the writ, which they, desire to review. \
    7 This case came up on the dismission of a bill of review.
    In 1.824, William Bradshaw recovered a judgment on a note for one hundred and twenty-five dollars against Lewis Garrett. Garrett had married with the widow of one Ogel-vie, on whose estate Bradshaw was co-administrator with Mrs. Ogelvie; and the note forming the foundation of the judgment had been given to Bradshaw by Garrett in settlement for moneys paid as such administrator. In 1827 Garrett and wife filed their bill to enjoin the judgment, on the ground that it had been obtained by fraud and duress. The bill alleged that Bradshaw had obtained the note by falsely pretending to have paid a debt previously subsisting against the estate.of Ogelvie, when in fact he had not done so.— Bradshaw’s administrators, he being deceased, answered generally as to their belief of the fairness of the transaction under which the note was obtained. On the hearing of the testimony taken in the cause, the injunction was perpetuated. In 1829, the plaintiffs in error filed their billfor review. The ground relied'on in obtaining this review, was the discovery, that during the pendency of the former suit, Garrett was discovered to have in his possession a memorandum or receipt, disclosing the items for which the note had been given, and thus proving the fairness of its consideration. To this bill for review, Garrett and wife filed a supplemental bill, insisting that the note had been given without consideration and for duress. In 1831, Perry, Chancellor dismissed the bill for review.
    The plaintiffs now assigned that dismission as error, on the ground that the new matter discovered was sufficient to authorise the review.
    Hutchison, for Appellants.
    The note fronr Garrett to Bradshaw, was given in 1822, the judgment on it was rendered in 1884, the injunction of the judgment was granted in 1827, and now in 1834, it is to be finally determined if a debt, founded on good consideration, shall be collected ! The bill for the injunction was by Garrett and wife, she being the relict of Ogelvie. It alleged, that many years before the note, she and Bradshaw were appointed administrators of Ogelvie; that he acted solely ; that when the note was given there was a suit pending against them in the District Court of West Tennessee for one hun- ■ dred and twenty-five dollars, and that B. by falsely stating-he had paid the demand, got the note, when truly judgment in the case was not given until 1825, and then paid by Th. White, her brother. There was a fugitive averment of a de-vastavit by Bradshaw. The administrators of Bradshaw answered on belief, that there was neither fraud nor devastavit, and that the note was fairly obtained, and for a good consideration. The documentary and testimonial evidence read on the hearing, had been filed and taken by Garrett and wife. Tt contradicted the idea of devastavit, showed a final settlement of Ogelvie’s estate in 1816, and a balance found in favor of the administrators of $206 50. It showed no misrepresentation or unfairness in obtaining the note, and the only disclosure about the consideration was that by White, who stated that Bradshaw presented a claim on account of a payment to the marshal of West Tennessee, and other items constituting $125, and his wife proved that Garrett, after doubting and deliberating, gave the note to shun law. The chancellor, Saffold, not mistaking any doctrine of equity, but by a most palpable mistake as to what • was proved, perpetuated the injunction, as if the note had been obtained without consideration and by fraud; but deeming the excuse for not defending at law, doubtful, taxed the costs to Garrett and wife. His decree was in i eptember, 1828. At March term, 1829, Bradshaw’s administrators presented their bill for review, and it was on full argument, allowed. It sought review, and change of the decree for error apparent, and for new matter. The new matter was, that in August prior to the decree, when Garrett was examining his witnesses in Maury, Tennessee, he produced the receipt he had taken from Bradshaw, expressing the items for which the note had been given ; that, that disclosure enabled the administrators to obtain full information, and to prove that their intestate had paid those items; that not having time to obtain a commission from Alabama for the examination of the witnes-es, and remission of the evidence, before the approaching term, they sent their agent to attend the court and procure a continuance ; that he did attend, and left an affidavit of continuance with J. B. Craighead, the solicitor, but returned to Tennessee before the cause was called; that it was believed a continuance had been sought. This bill was verified by the agent, who had been present at the exhibition of the receipt, and the letter of A. Porter to the administrators, about the items raised in the receipt, was exhibited. When the review was ordered, Garrett and wife obtained leave to amend their bill, and did file an amendment, in which the receipt itself was exhibited, and the new matter admitted. The amendment, however, alleged, that the items had not been paid by Bradshaw, and that the note originated in the circumstances of duress alleged. At September, 1830, there was an agreement of the parties, entered of record, that the bill of review and amendment should be as upon publication and confesso, and that upon the rc-hearing, ail the evidence should, be read, so far as competent, .relevant, and credible, waiving all other objections. This embraced the depositions taken before and since the decree. There was not the least proof of the matters of avoidance contained in the amendment— whilst, on the contrary, the now matter stated in the bill of review, and admitted in the amendment, was amply established. Chancellor Perry, at March term, 1831, dismissed the bill of review, at the costs of Bradshaw’s administrators, and charged them with the costs eftim amendment.
    The matters assigned for error, raise there questions :
    1. Was the bill for review the proper mean to reform the decree ?
    2. Were the errors assigned to reverse ii, well taken ?
    3. Was the new matter properly introduced — was it sufficient — was it proved ?
    The ordinary course to reverse a decree, is by appeal, hut it may be done in the court of original jurisdiction by original, bill, if obtained by fraud, by motion to correct a miscalculation or ministerial error, or at the same term, or before en-rolment, by a bill in the nature of one for review, for error apparent or new matter. But after enrolment, a bill of review lies, to reform the decree for error apparent on its face, of context, or for newly discovered matter. These principles'were sufficiently recognised in Caller vs. Malone, June, 1832. , .
    As Judge Sait’OLD gave the decree alleged to be erroneous, and as it is desired to have the cause finally determined by a full court, we omit to apply the doctrine of Caller vs. Malone to the errors assigned in the bill of review, or to urge the consideration of them.
    Then as to the last enquiry. It is declared in Caller vs. Malone, that the ancient rule in regard to the ground laid for tlie introduction of new matter, is relaxed, and that now it is sufficient if it were discovered at a time or under circumstances that prevented its introduction on the hearing. Thus" it was in this instance : there was not time after the discovery to obtain the evidence; and full diligence was used to ob-' tain a continuance. It is presumable a continuance was prayed, and the rejection of it could not of course appear. Bradshaw’s administrators were defendants, and "could not save their rights by a dismission on the refusal of a continuance with a view to reinstate suit. Yet if the ground laid for presentment of the new matter had been insufficient, it was addressed to the discretion of the court below, and having been held sufficient, the only subjects of determination left open were, the insufficiency of the new matter, and whether it was proved.— Wilson vs. Webb, 2 Cox C. It. 3. The sufficiency of the ground for offering the new matter was expressly submitted to the discretion of the chancellor, by the statute o:i the subject of bills of review. To order the casé to bo re-instated and re-heard, was no decree on the merits ; only a determination tliat the circumstances inducing it were satisfactory. It was equivalent to reinstating a cause after a non-suit, or granting a new trial at law. But since Garrett and wife, by their amendment, have not only admitted the receipt, which was flic chief now fact, but brought it into court, and alb y-od matters in avoidance of it: since by this step il evett h:i; tacitly admitted that the injunction was obtained ,: ,.d po.'-K'Cuiie.l by his own perjury, and the course of justice par. ;,rl od and abused, are wo to east back in quest of the Skcbbokih, by which Bradshaw’s administrators got back into the sauctuary, in regard to the facts evidenced by the receipt? Is this to do justice and equity? Then as to the agreement to ro-Iiear the cause on the original and new evidence, is that to have no influence ? Is this to be a case in which both parties have agreed to a rc-henring, on a subject cognizable in chancery, — but which cannot be heard on its merits — because a continuance might have been asked — because there might have been evidence that it was not asked ? If such be truly the mode in which equity, ~ the end of all law, can alone be attained, it is greatly to be desired that the temple be closed up forever, and the citizen no longer deluded by the hope of obtaining it here. In this instance it will be seen, that after a debt has been ascertained by adjudication at law, the chancellor has taken cognizance of it; and when finally both parties agree he shall hear the whole evidence aboiit it, he will not; because on one side the form was not observed, although the subject was previously brought before him by perjury ! If Garrett, with the receipt in his pocket, could safely and truly verify the bill for injunction, then the term perjury may be too harsh ; but how is it to be otherwise esteemed ?
    Was the new matter sufficient ? The rule put in Caller vs. Malone, is, that in general it must not be merely additional or cumulative, nor to be shewn by oral proof; yet, though it be additional and cumulative, if it bear on the decree, and be such as may require the decree to be different — and if too the evidence be in writing or of record, it may be received. The evidence here was in writing. The receipt newly discovered, became the highest and unerring evidence of the real consideration of the note. The items it mentioned became coupled with the note by the evidence of Thomas White, taken by Garrett and wife, before the decree ; and to defeat the receipt produced by themselves, with their supplement, it was only required that they should prove the matters of avoidance they averred. That they did not do. On the contrary, Bradshaw’s administrators proceeded to prove, and did prove affirmatively, that Bradshaw had paid the items specified.
    Not to examine whether the decree perpetuating the injunction originated in an obvious mistake or inadvertence of the presiding Judge, or in a deliberate judgment, in which he mistook or misapplied the law — but taking the whole evidence together, it will appear that there pever was the least ground
      to impeach the no!e. The judgment upon it, therefore, ought to be restored, at the costs of Garrett and wife ; and the causeless and vexatious delay occasioned to the administrators of Bradshaw, ought to be compensated by the damages allowed by the statute, and that too, to the utmost.
    Stewart, contra.

   By Mr. Justice Thornton :

This case comes into this court by appeal from a final decree of the chancellor below, dismissing a bill of review, allowed for the purpose of opening a decree pronounced, perpetuating the injunction of a judgment at law. The injunction was granted upon allegations that the note’upon which the judgment at law was obtained, was executed to the intestate of the appellants without any good or valuable consideration, but upon a false representation by him that he had advanced the amount of said note in satisfaction of a certain judgment, for which the estate of one Ogelvie, (of whom Garrett’s now wife, was late relict, and co-administratrix with Bradshaw) was liable; and that the false representations were not discovered in time to defend at law. The appellants answered the said bill, denying the alleged illegality in the consideration of the said note. Afterwards, upon the final hearing of the cause, the injunction was perpetuated by the decree of the chancellor. At the next term after this decree was rendered, the appellants, filed a bill praying for a review of the said cause, because of sundry errors assigned as apparent in the decree, as also because of new matter, discovered, as is alleged, too late to be available on the former trial.

The failure of the consideration of .the note upon which the judgment at law was obtained, rests upon the proof relative to the statement of the said Bradshaw to the appellees; that he had paid the amount towards the discharge of thejudg-toent above mentioned ; and the further proof, that the said judgment was in fact, satisfied by otlicv moans, and not by Bradshaw. The new matter disclosed in the bill of review, is a receipt in the following words : “ Bee. 16th, 1822-Re- ceived of Lewi's Garrett one hundred and twenty-five dollars in full of all moneys paid by me as administrator of the estate ■ of Ogelvie, dec’d, to .the following persons, to-wit, &c.” specifying the amounts paid each, and tested by the hand and seal of the testator Bradshaw, and then the additional explanatory facts, supported by parol testimony, that Garrett held such receipt in his possession during the pendency of the former trial, and acknowledged that ho executed the note upon which the enjoined judgment was recovered, upon the execution of the receipt-the one hundred and twenty-five dollars named therein being paid by the said note, and not'in money as therein stated.

Tins new matter would,it is apparent, have had power- * > ful weight the former trial, if it had not produced an en- tirely different result; but before we can advance to an ex- amination of the whole evidence and to a decision upon it, we are mot by the .preliminary question (which arises in eve- ry case upon ¡appeal from the final decree on a bill of review) whether it was competent for the chancellor, according to the settled rules regulating his discretion in such cases, to grant the prayer of the bill and open the decree already pronounced between the parties. A bill of review

A bill of reviewmaybe granted either for errors of law ap-, parent in the decree, or for the discovery of new matter. The former ground not being relied on in this case, it rests upon the new matter disclosed in the bill. The settled rule in

The settled rule inrelation to bills of icview, and the new matter upon which they originate, is that no review ought to bo granted of a fact formerly in issue, on account of evidence newly discovered, unless that evidence be in writing or re cord, and does not consist in swearing oniy. In order to . apply tins rule, us first see what is the nature of the new matter disclosed in this bill of review-that is, whether it be ~- 3 Mars. 121 it be new matter pressing- upon the decree, which was not in issue on the former trial — or cumulative testimony only, in support of the same issue. To test this, what was the matter which properly constituted the issue in the original trial ? The bill for the injunction was solely founded on the allegation of fraud in the consideration of the note sued upon at law ; the issue was the validity, or not of its consideration. The new matter, acewding to my apprehension, is nothing else than testimony to that it sue. Such being the nature of this new matter, it would clearly be an insufficient foundation for a review, unless, kinder the exception expressed in the rule above laid down, such new matter or evidence be in writing or record, and does not consist in swearing only. Thi„s leads us to íheconskleí-utiivi of the new matter in reference to that exception fo the rulo. So far as it consists'in writing, it is a receipt executed by the intestate cf the appellants, as copied above. This by itself, without the parole testimony accompanying .and explaining it, sheds not the least light, upon the former issue. It is the parole testimony of Garrett’s possession of this paper, and bis acknowledgments respecting it, together with the proof that it was for Garrett’s note for the one hundred and twenty-five dollars, and not for the sum in money, as it purports to be, which, alone render the writing in the least degree material, or even admissible as evidence on the first trial. The newly discovered written evidence then, I consider wholly nugatory, unless the parole evidence alluded to b.e also introduced; which it seems to bo well settled, cannot be admitted as to a point put in issue in the former trial.

The operation of the general rule, may in this instance, seem to inñicí a particular hardship, which is often the case with the general rules of law : but the rule cannot be departed from. Its tendency is highly salutary, impelling the parties to diligence in the prosecution of their rights — tending to terminate litigation as a preventive of perjury and its subornation — and of the undue advantage which would often be sought, by withholding the matter and taking the chances of a trial, then in case of a failure, introducing the cumulative "evidence by bill of review, when by lapse of time, the means of meeting it on the other side may have been swept from the scene of action. The principles of equity applied in this d;;-cisson, are recognised by this ■ ourt in the case of Caller vs. Malone, in which there is a luminous exposition of the authorities relative to this branch of equitable jurisprudence.

This is the course of reflection, by which I have arrived at the conclusion, that the decree appealed from, should be affirmed. In this conclusion there is a concurrence of the whole court; but my brethren entertain the opinion that the rule laid down above, that no review ought to be granted of a fact formerly in issue, on account of evidence uewly discovered, ought not to be extended to embrace the new facts set up in this bill. They consider, and perhaps with the best reason, that as the complainants in the bill for review, were only rep' esentatives of the deceased, William Bradshaw, and so not presumed to be cognizant of the facts; and as the facts themselves as set up, are more properly rebutting of those adduced on the other side, than strictly cumulative upon others; before proven upon the same point by them ; it would have been admissible to allow them the benefit of those facts by bill of review, if they had used the requisite diligence to procure them in the former trial. This latter view of the case, makes it necessary to consider whether such diligence was used; as in any event, let the facts be of what nature they may, should be required of a litigant, and in default of . which, a bill of review would not be entertained. The facts came to the knowledge of the complainants about the 25th of August, and the trial term of the I iawrence court at which the cause was heard, commenced on the first Monday in September following. Whether there would have been a reasonable time in this interim to have taken the necessary proofs, the record does not disclose enough of the attending circumstances to enable us to determine. If however, th» distance of the residence of the Pparties and witnesses were such, as made it impracticable, with ordinary diligence, to take the proofs, yet it surely was incumbent on the parties to" apply for a continuance of the cause which we are bound1* to infer would have been granted upon proper affidavits of the matters to be proved. No sufficient excuse is afforded for. this omission, and hence, even if the matters discovered could otherwise furnish ground for a review, we all concur in the opinion, that the complainants cannot now disturb the former adjudication — not having done every thing which could be reasonably require-1,, to avail themselves of the new matter during its pendency.

       - 3 Mars. 121

       Hardin, 342