text:
    Hunt et. al. vs. Burton as ad.
    In an action upon an injunction bond, given upon an injunction to stay proceedings upon a judgment at law, the recital in the declaration of the judgment and executions issued thereon, being inducement merely, and a substantial description so as to identify them being sufficient (Adams et al. vs. The State use Wallace, 14 Arh 20) a variance between the recital in the declaration and the execution, as to the amount of costs recovered, is immaterial.
    It is no defence, in mitigation of damages or otherwise, in an action against the securities in an injunction bond, that the principal is solvent and able to pay his own debts.
    The measure of damages recoverable upon an injunction bond, under the Statute (see. 18 ch. 86 Dig.) is the amount of the judgment enjoined, and the damages assessed upon the dissolution of the injunction and the costs; whether the decree be for the amount of the judgment enjoined and damages and costs, or for the damages and costs only, and the defendant be remitted to his judgment at law.
    If the defendants permit judgment to go against them by default, it is an admission of the right of action as disclosed by the declaration.

      Quere. Are the securities in an injunction bond liable to suit upon the bond upon the dissolution of the injunction; and before a final decree in the cause?

      Appeal from the Independence Circuit Court.

    The Hon. Beaufort H. Neely, Circuit Judge.
    Watkins & Gallagher for the appellants.
    Fowler & Stillwell for the appellee.
   Mr. Chief Justice English

delivered the opinion of the Court.

This was an action of debt upon an injunction bond, brought by Patrick P. Burton, administrator of Philip P. Burton, deceased, against Henry W. Hunt and Allen D. Ramsey, securities in the bond, in the Independence Circuit Court.

The declaration describes the bond sued on as having been executed by Edwin T. Burr, as principal, and the defendants as securities, on the 6th of August, 1854, in the penal sum of $5,000, payable to the plaintiff as such administrator, etc. Conditioned, that whereas the said Burr had that day presented his bill of complaint against said Burton as administrator, etc., aforesaid, to the Judge of the Circuit Court of Independence county, exercising chancery jurisdiction, praying among other things, a writ of injunction to be directed to said Burton as such administrator, and enjoin him from further proceedings upon two judgments recovered by him, at the March term, 1854, of said Court, against said Burr; and also commanding him to refrain from any further proceedings upon the executions issued upon said judgments, and to release the levy upon the property of said Burr by virtue of said executions; and also to refrain from selling any of the property levied on. And whereas, on the 16th of August, 1854, it was ordered by the said Judge that said writ of injunction as prayed for in said bill should issue pursuant to the prayer thereof, upon the said Burr entering into bond, with said Hunt and Ramsey as his securities, in the penal sum of $5,000, to the said Burton, administrator, etc., conditioned according to law — Then, therefore, “ if the said Edwin T. Burr should abide the decision that might be made therein, and should pay all sums of money and costs that might be adjudged against him, if the injunction should be dissolved, either in whole or in part, then the above obligation was to be void and of no effect either in law or equity, otherwise to remain in full force and virtue.”

The declaration then proceeds to assign a special breach of the condition of the bond, in substance as follows:

That on the 20th of March, 1854, Burton, as such administrator, recovered a judgment against Burr, in the Independence Circuit Court, for residue of debt $1,640 11, also for $157 30 damages, and the costs of suit, which, at the time of the execution of the bond sued on, amounted to $11 30.

That, on the same day, Burton recovered against Burr, in the same court, in another suit, a judgment for $750, residue of debt, $9 35 damages, and for costs, which amounted, at the time the bond sued on was executed, to $7 20.

Both of which judgments remained in full force, etc., and were the same recited in the condition of the bond sued on.

That, on the 3d of May, 1854, executions were issued on the judgments, corresponding therewith, and correctly reciting the same, on each of which the proper amount of debt, damages and costs was endorsed, returnable to the September term following, etc.; and which, on the day they were issued, were delivered to the sheriff of Independence county, and were levied by him on the property of Burr. That these were the same executions recited in the bond sued on.

That the bill mentioned in the condition of the bond, was filed on the chancery side of said Court, on the 16th of August, 1854, and on the same day, the injunction was issued, after the execution of the bond, in accordance with the prayer of the bill, etc., by virtue of which Burton was restrained from executing the said judgments, and the levies were released by the sheriff, etc.

That afterwards such proceedings were had upon said bill and injunction/in said Circuit Court in Chancery, that at the September term, 1854, (on the 25th Sept.) by the order and decree of the Court, the injunction was dissolved, and Burton again fully authorized to proceed upon, and have the benefit of his said judgments at law; and the Court then and therein, by said order and decree, found that the money so released by the dissolution of the injunction, exclusive of costs, then amounted to the aggregate sum of $2,635 71, and on said judgments, so enjoined, assessed the damages sustained by Burton, as such administrator, at six per cent, on the amount so found due, and so released, amounting to the sum of $158 14; and then and thereby decreed the said Burr to pay said sum of $158 14, the damages so assessed to the said Burton, and that he should have execution thereof.

And the plaintiff avers that in and by said decree, so rendered, and so dissolving said injunction, the said amount of said judgments at law so then found to be due to the said Burton as such administrator, from the said Burr, to wit the sum of $2,-635 71 so released from the said injunction; and also said sum of $158 14, the damages so assessed and decreed; and also the said costs of said judgments and executions at law, and of the said levies thereon, amounting, at the time of the making of the said bond sued on, to the aggregate ,sum of $18 50, were adjudged against the said Burr, and in favor of said Burton as such administrator; and which said sums of money, so adjudged against said Burr, to and in favor of said Burton as such administrator, the said defendants Henry W. Hunt and Allen D. Ramsey, as well as the said Burr, then and there became liable and bound to pay to the said Burton, etc., by virtue of the bond sued on, and the condition thereof. Then follow averments of the non-payment of the money, etc., and the general breach.

The defendants permitted judgment to be rendered against them by default, and a jury was called to assess the plaintiff’s damages, etc. Pending the inquest the defendants excepted to several decisions of tbe Court, took a bill of exceptions, and appealed from the final judgment.

1st. The Court permitted the plaintiff to read to the jury two executions, with the endorsements of the clerk, and the returns of the sheriff thereon, against the objection of the defendants. The ground of objection was, that the executions offered in evidence varied from, and did not support the declaration.

The only discrepancy between the executions offered in evidence, and the averments of the declaration, seems to be thus: It is alleged in the declaration that the costs in one of the judgments enjoined, amounted to $11 30, and in the other to $7 20, at the time the injunction bond was made. The costs endorsed upon the executions correspond with these sums, but the fee of the sheriff for returning the execution in each case, is included to make up the amounts; and the returns were made after the execution of the bond.

The executions corresponding with the allegations of the 'declaration in all other respects, were sufficiently identified to admit them in evidence.

The injunction bond was the foundation of the action. The judgments and executions were recited by way of inducement, and a substantial description of them, so as to identify them, was sufficient. Adams et al. vs. The State use Wallace, 14 Ark. R. 20.

2. The defendants offered to prove by two witnesses in mitigation of damages, that Burr, the principal in the bond sued on, was abundantly able to pay his own debts and liabilities, and that he had had sufficient unincumbered property, out of which to make the amount of the bond, ever since its date, and down to the time of the inquest; but, upon the objection of the plaintiff, the Court excluded such testimony.

There was no error in this. The solvency of Burr had no relevancy to the amount of damages to be assessed by the jury. The liability of the obligors in the bond was joint and several; and the obligee had the right to pursue his separate remedies against the principal and securities, though he could have but one satisfaction. The remedy against the securities could progress until Burr discharged the bond, by paying the sums-secured by it.

3. The defendants moved the Court to instruct the jury: “ That upon the records and papers which had been read before them as testimony, which are the several records and papers mentioned in the declaration, and which constitute the testimony on the part of the plaintiff, they can find for the plaintiff only the damages actually sustained by him, in the suspension of his executions, and cannot include as damages the amount of the judgments mentioned in the declaration, and read in evidence.” Which the Court refused to give; but instructed the jury: “ That the measure of damages for them to find on the evidence, if they believed the evidence, was the amount of the' judgments and interest thereon, according to their effect, and the amount of the damages assessed by the Court on the dissolution of the injunction, and interest thereon, and costs except as paid.”

Sec. 18, chap. 86, Digest, p. 593, provides that: “ no injunction shall be issued in any case until the complainant execute a bond to the adverse party, with good and sufficient security, in such sum as the Court, Judge, or Master shall deem sufficient to secure the amount or matter to be enjoined, and dll damayes and costs that may be occasioned by such injunction, conditioned that the complainant will abide the decision which may be made therein, and that he will pay all sums of money and costs that may be adjudged against him if the injunction be dissolved, either in whole or in part.”

The bond sued on in this case, as described in the declaration, appears to have been taken in accordance with the Statute.

The amount enjoined was the aggregate sum of the two judgments at law; and this, with the damages assessed upon the dissolution of the injunction, and costs, furnished the measure of damages recoverable upon the bond. This was clearly the intention of the Statute. The defendant in a judgment is not permitted to stay its execution by an injunction obtained upon an ex-parte case, made by his bill, without securing the debt, and any damages and costs that may be adjudged against him on failure to sustain his bill. 6 Leigh 581.

The usual practice in this State, we believe, is for the Chancery Court to render a decree for the damages assessed on the dissolution of the injunction, and to remit the defendant in the bill to his execution upon the judgment at law, as was done in this case.

The Court did not err in refusing the instruction asked by the defendants, and in giving that moved by the plaintiff.

It is insisted in the argument of the counsel for the appellants that the action was premature. That no action would lie on the bond until the cause in chancery was finally heard and the bill dismissed.

If there is any thing in this objection, it should have been interposed by any ^appropriate plea in the Court below. The default of the defendants admitted the right of action as disclosed in the declaration. The objection is based upon matter dehors the record before us in this case.

The judgment of the Court below is affirmed.

Absent, Hon. C. C. Scott.


source: Caselaw Access Project

author: Mr. Chief Justice English

license: Public Domain

text:
    Warren vs. The State.
    An indictment charging the defendant with betting upon a gambling device commonly called a Faro Bank, held good on motion in arrest of judgment.

      Appeal from the Circuit Court of Hot Spring county.

    The Hon. Theodoric F. Sorrells, Circuit Judge.
    Cummins & Garland for the appellant.
    Johnson, Attorney General, for the State.
   Mr. Chief Justice English

delivered the opinion of the Court.

Richard Warren was indicted in the Hot Spring Circuit Court for gaining. There were three counts in the indictment. The first charged: “ That Richard Warren, on etc., at, etc., did bet ten checks of the representative value of five dollars, upon a certain gambling device commonly called a Faro Bank, contrary to the form of the Statute, etc.

The second count charged: “ That Richard Warren, on, etc., at, etc., unlawfully did bet ten checks of the esteemed value of five dollars upon a certain other gambling device commonly called a Faro Bank, then and there kept and exhibited by some person whose name is unknown to the jurors: contrary to the form of the Statute,” etc.

The third count charged: “That Richard Warren on, etc., at, etc., unlawfully did bet five dollars in money upon a certain other unlawful gambling device commonly called a Faro Bank, contrary to the form of the Statute,” etc.

The defendant standing mute, the Court directed the plea of not guilty to be entered for him, and he was tried by a jury upon the following testimony, etc.

Farris, a witness for the State, testified that, in July, 1855, and previous to the finding of the indictment, he went into a room at the Hot Springs, where he saw a good many persons betting or gambling. It was what is generally called a Faro Bank. In betting, they used checks, which he thought were worth fifty cents. Some of the checks were worth (as estimated in the game) twenty-five cents, and some more than fifty cents. He did not know they were worth as stated, but thought they were. The defendant, Warren, was betting among the rest. Witness did. not then know any of the persons present. He had often seen the defendant Warren, and had become acquainted with him afterwards, and recollected that he was present, and betting as stated. He did not know the person who was carrying on the Bank. The players called it a Faro Bank. Witness had never bet at a Faro Bank, and did not understand the game, etc.

Win. II. Gaines testified that he had seen Faro Banks carried on, and had bet, and knew how they played. “ There is a banker, who has the money, cards, etc., and deals the cards. There is a set of cards spread upon the table, and the banker, or dealer deals the cards from a box. Every body bets against the bank or dealer by placing their money, or more usually checks, which are furnished by the banker, and are of the value agreed on, and sold by the banker to those who wish to bet upon the cards spread upon the table; and the party so betting wins or loses according as the cards, dealt out successively by the dealer from the box, correspond, or differ from the card on the table which the better has selected to bet on. The game played is called Faro. The Faro Bank is the room, dealer, money and apparatus for carrying on the game. The game played is called Faro, and is a game of chance.”

The above being all the testimony introduced by the parties, the Court, at the request of the defendant, instructed the jury as follows:

“ If the jury believe from the evidence that a Faro Bank-is a place, apparatus and person provided, and ready for gambling purposes, but only means this: and that these are only means to be used in carrying on a game of chance, the jury cannot find for the state in the absence of an express charge in the indictment that a game of chance was played and carried on at such bank by persons there assembled.”

The jury returned a verdict of guilty against the defendant, assessing his fine at sixty dollars. He moved for a new trial, and in arrest of judgment, and both motions being overruled he excepted and appealed.

The motion for a new trial was made on the grounds that the verdict was contrary to law and evidence, etc.

If the indictment was good in substance, the evidence was sufficient to warrant the verdict — at least the jury so concluded, and it was their province, and not ours, to determine this matter.

The motion in arrest of judgment questions the sufficiency of the indictment, on the grounds that the several counts charge a betting upon a Faro Bank, and not upon the game played by means of the apparatus which constitutes the jaro bank.

By the first section of the gaming act (Digest p. 365,) it is made a misdemeanor for any person to set up, keep or exhibit any gaming table or gambling device, commonly called A. B. C., E. 0., Roulette, rouge et noir, or any faro bank, etc., etc.

Under this section, when any person sets us, keeps, or exhibits the machinery or apparatus constituting a faro bank, in readiness to be put in motion and carry on the game, he holds out a temptation to crime, and is guilty of an offence, whether any person falls into the temptation and bets at the Bank or not. Parrott vs. The State, 5 Eng. 577. Drew vs. The State, Ib. 85. Brown vs. The State, Ib 608.

The third section of the act, under which the defendant was indicted, makes it an offence for any person to bet “ on any of the games prohibited by the first section.

This section prohibits the betting upon the game produced or carried on by means of the machinery or apparatus constituting the faro bank, etc. The betting is upon the machinery or apparatus in motion and not at rest — upon the result of the chances to win or lose produced by its movements.

Each of the counts in the indictment before us charges a betting upon a certain gambling device commoniy called a faro bank. This language implies, we think, with sufficient certainty, that the faro bank was in motion, and that the betting was upon the game produced by it. The defendant could not have mistaken the meaning of the language used, or have failed to understand the nature of the offence charged against him.

The counts in the indictment are substantially the same as some of the counts in the case of Drew vs. The State, 5 Eng. R. 82, which were held good. See also Johnson vs. The State 13 Ark. 684.

The judgment of the Court below is affirmed.

Absent, Hon. C. C. Scott.


text:
    Sanders vs. The State.
    In misdemeanors, all persons who procure, participate in, or assent to the commission of the crime, are regarded as principals and indictable as such.
    On indictment for obstructing the public road, the proof was, that there were obstructions across the road: that they were caused by the felling of timber to build the defendant’s house: that he was frequently about the premises and saw the obstructions, but made no effort for their removal — that he had employed a man to erect the house and had no control over the workmen; the jury found a verdict of guilty: As there was not a total want of evidence to sustain the verdict, this Court should not set it aside.

      Appeal from, the Circuit Court of Drew county.

    The Hon. Theodouic F. Sorrels, Circuit Judge!

      C jmmins & Garland for tbe appellant.
    Johnson, Attorney General, for the State.
   Mr. Chief Justice English

delivered the opinion of the Court.

Benjamin F. Sanders was indicted in the Drew Circuit Court for obstructing a public road by felling trees and timber across it.

Upon the plea of not guilty he was tried by a jury, convicted and fined one cent. He moved for a new trial on the grounds that the verdict was contrary to the law and evidence; the motion was overruled by the Court, and he excepted, and appealed. No instructions appear to have been asked, or given by the Court to the jury. No question of law was reserved at the trial. This Court is asked to decide merely whether the Court below erred in overruling the motion for a new trial; or, in other words, whether the evidence warranted the verdict?

The evidence, as set out in the bill of exceptions, is substantially as follows:

The defendant admitted that the road which he was charged with obstructing was a public road and highway.

Whitehead, a witness for the State, testified that in the month of August, 1854, he was at the place where-some men were building a store house for defendant — heard defendant say he had hired Mr. Woodward to hew the timbers for his house which he was building. While there, witness saw several pieces of timber in the road that ran by the place where they were building the store-house. It was in Drew county. The logs or pieces of timber remained in the road for some five or six weeks. That defendant was unmarried, and did not keep house, but lived with his mother. Witness did not see the logs or timber put there. He did not know who put them in the road.

Bush, on the part of the State, also testified that he saw a log lying across the road, near the store of the defendant, but did not know who put it there.

John W. Sanders, a witness for defendant, testified as follows: “ The defendant employed me to bnild a store-house for him. He agreed to give me seventy-five dollars for the same when completed. Defendant hired a Mr. Woodward for me, at my request. Defendant had no control over me, or Mr. Woodward, or any of the hands engaged in building the store-house. Defendant was at the place frequently while the house was being constructed, but had no control over it. That the tree was felled by Mr. Woodward. I do not recollect whether defendant was present at the time or not, but he was there soon afterwards, and he took the top of the tree out of the road, but did not take the logs out of the road so that wagons could pass. The timber belonged to me until the house was finished. The other timbers were put in the road by a negro boy in my employ. I showed him where to put the timbers.”

The above was all the testimony offerred or introduced by the parties.

It was not necessary for the defendant to have felled the timber across the road himself, or for it to have been done by his immediate direction, to make him responsible for the offence. In misdemeanors, all persons who procure, participate in, or assent to the commission of the crime, are regarded as principals and indictable as such.

For the purposes of this indictment, it must be inferred from the testimony that the premises, upon which the store-house was erected, belonged to defendant, or were under his control. He employed the witness Sanders to erect the store-house there, for him: and unless it is inferred from this fact that the defendant was the owner, or in control of the premises, we should have to presume that he procured a trespass to be committed on the land of some other person by causing the house to be erected there. But it is fairer to presume from the evidence that he had the lawful control of the premises, than that he was a trespasser.

Assuming then, from the facts in proof, that defendant was in the lawful control of the premises, by which the public road ran, and that he employed Sanders to erect a store-house there for his use, it was his duty as a good citizen to see that in the erection of the house upon his premises the public road was not obstructed: and if casually obstructed in cutting the necessary timber, upon the premises, for the erection of the building, it was his duty to see that it was immediately removed. It seems from the evidence that the defendant was frequently at the place where the store was being erected, and where the timber was lying in the road. That some of the -logs lay in the road for as long as five or six weeks. That he was there immediately after one of the hands had cut a tree across the road, and removed the top of it from the road himself, but the trunk remained as an obstruction. There is no proof that he made any other effort, or gave any directions to have the obstructions removed, or remonstrated with the workmen in reference to them. We think, under these circumstances, the jury were warranted in inferring his acquiescence in the obstructions.

It is true that the evidence, taken altogether, does not establish the criminal agency of the defendant in throwing the timber across the road, but there was evidence from which the jury might have inferred his acquiescence in the obstructions, and criminal neglect in their removal. There is not a total want of testimony to sustain the verdict, and the jury being the judges of its weight and sufficiency, we could not set aside the verdict without encroaching upon their constitutional province.

The witness Sanders seemed disposed to take the entire responsibility of the offence upon himself, but however guilty he may have been, the defendant was not the less culpable if he participated or acquiesced in the crime: and we cannot hold that he was excusable where there is ground to infer from the evidence, that he procured men to come upon his premises to erect a building for him, and stood by and permitted them to obstruct the public road, in doing his work, without remonstrance, or effort to prevent it, or to remove the obstructions.

The judgment of the Court below is affirmed.

Absent, Hon. C. C. Scott.


author: Mr. Justice Hanly

text:
    State use Burton’s ad. vs. Fort et al.
    The declaration, in an action upon a sheriff’s bond for failure to levy an execution, set out with particularity a decree in chancery and the execution issued thereon, and alleging that costs were decreed to the plaintiff. Upon a plea of nul tiel record, the decree offered in evidence was silent as to costs — the allegation was merely inducement to the breach, and the variance between the declaration and the decree was immaterial.
    Costs do not, as a consequence, follow a decree in chancery; the whole question of ■ costs is within the discretion of the Chancellor.

      Writ of error to the Circuit Court of Pulaski county.

    The Hon. John J. Clendenin, Circuit Judge.
    Fowler & Stillwell, for plaintiff.
    Bertrand and Watkins & Gallagher, for the defendants.
    As to the variance between the declaration, in alleging a decree for costs, and the decree offered in evidence, see Stephen on Plead. 190; Butler vs. Owen use, etc., 2 Eng. 373; Caldwell vs. Bell Sf Graham, 3 Ark. 421.
   Mr. Justice Hanly

delivered the opinion of the Court.

This is an action of debt brought by the plaintiff in error against the defendants, on a sheriff’s bond.

The declaration, after setting forth the penalty of the bond and its condition, proceeds to assign the breach of the condition as follows: That sometime anterior to the 25th Sept., 1854, one Burr obtained an injunction restraining the plaintiff Burton from proceeding to execute a certain judgment at law, rendered in favor of the latter against the former; that this injunction suit was pending in the Circuit Court of Independence county; that on the 25th Sept., 1854, on the motion of Burton, the injunction granted to Burr was dissolved by a decree of the Court in which it was pending; that on the dissolution of the injunction, the Chancellor decreed to Burton the sum of one hundred and fifty-eight dollars and 4¿- cents, by way of damages under the Statute, besides costs sustained in and about that suit, which it is averred, were taxed at the sum of $17 96; that after the rendition of this decree, the plaintiff Burton caused process of execution to be thereon issued, and placed the same in the hands of the defendant Fori, who was then sheriff of Independence county, and the principal in the bond declared on, with directions that he should make the amount from Burr; that Burr had abundant property in Independence county, and that the defendant Fort, as sheriff, failed and omitted to have the amount of the execution, at the time prescribed by law.

Fort and Noland were served with process, and at the return term of the writ appeared and filed their three pleas, to wit: 1st. That no such Ji. fa. as the one recited in the declaration ever came to the hands of the defendant, Fort: 2d. Nul tiel record as to the judgment or decree also recited, as well as the execution issued thereon. 3d. And that Fort had duly executed and returned the ji. fa. in the manner prescribed by law, and the command thereof.

Issues were made up on these pleas. A jury was empan-nelled to try the first and third, and the second one was submitted to the Court. To sustain the issue upon the plea of nul tiel record, the plaintiff proposed to read a transcript corresponding with the one recited in the inducement to the breach of the condition of the bond declared on, and stated above, except it does not appear, from the transcript of that decree, that the Chancellor rendered any decree for costs against Burr on dissolving his injunction against Burton. The reading of this transcript was objected to by the defendants, on the ground of the variance between the decree offered in evidence, and the one recited in the declaration. The Court below sustained this objection, and refused to permit the plaintiff to read the transcript of the decree; for which the plaintiff excepted, and having-no other evidence to offer in support of this issue, there was a finding of the Court for the defendants upon the plea of nul tiel recofd. And tbe plaintiff failing to offer any evidence in support of tbe two issues submitted to tbe jury, they were instructed by the Court to find for tbe defendants, which they did. To all of which, it appears from the transcript, the plaintiff excepted at the time, and filed his bill of exceptions, embodying the foregoing facts. Final judgment was .rendered for the defendants, Fort & Noland, and a discontinuance entered against the other defendants not served with process.

The plaintiff brought error, upon which the cause is now pending in this Court, and assigns for error the ruling of the Court below in reference to the rejection of the transcript of the decree rendered by the Chancery Court of Independence county, as evidence in support of the issue found on the plea of mil tiel record. And it is this question that we are now called upon to determine.

It is insisted on the part of the defendants, that the plaintiff in this cause should be held to prove the allegations contained in his declaration, whilst it is maintained by the plaintiff that he should only be required to prove those allegations which are material and necessary, and not those in that part of his declaration which is inducement to the breach of the bond declared on.

This brings us to enquire into the office of an inducement, when applied to pleading, for it is presumed that the statement in the declaration now under consideration, in reference to the decree in question, is conceded to have been introduced by the pleader by way of inducement to the breach of the condition of the bond declared on, as the cause of action set out in the declaration was the bond of the defendants, and not the decree, shown by the transcript, rendered by the Chancery Court of Independence county. The office of an inducement in pleading is said to be explanatory, and, as such, it does not require exact certainty in its statement, nor strict proof of its existence as stated. (See 1 CMtty’s Plead. 291.) To illustrate our view we will give an example. As for instance, where an agreement with a third party is stated only as inducement to the defendant’s promise, which is the main cause of action, it is considered, in general, sufficient to state such agreement without certainty of name, place or person, (see Yelv. 17.) We have been considering the office of an inducement in pleading. We must also consider it in reference to its influence with regard to the rules of evidence applicable to it, and we know not how better to express our views on this branch of the subject than by quoting the language of Lord Mansfield in Doug. 665, 4 East 100, who is reported to have said, that “ the distinction is between that which may be rejected as surplusage, which may be struck out on motion, and what cannot. Where the declaration contains impertinent matter, foreign to the cause, that will be rejected by the Court, and need not be proved. But if the very ground of the action be mis-stated, that will be fatal, for the plaintiff must recover secundum allegata et probata.” As an example of the principle thus stated, we give the case reported in 4 B. & C. 380, Brownfield vs. Jones, which was an action against the Marshal for an escape; the declaration after stating the original judgment, set out a judgment in scire facias, reciting the original judgment, with the usual award of execution, and then averred that “ thereupon ” the party was committed: it was held in this case, that the allegation of the judgment in the scire facias was immaterial and need not be proved. Let us apply these principles to the case at hand, and we are irresistibly forced to the conclusion that the plaintiff was more precise and particular in stating the facts forming the inducement to the breach of the bond sued on than the law required; that he might have referred in general terms to his recovery of a decree against Burr in the Chancery Court of Independence county, and that, upon that decree execution had been awarded and issued, etc., without specifying the circumstances antecedent to the decree, the date of its rendition, or its amount, etc.; for the reason that these facts were not necessary or material in pleading, to show his right of action, or to apprise the defendants of what they were called on to contest, or to enable the Court to pronounce a judgment commensurate with his rights in the premises. The gravamen of the action was the execution of the bond sued on, and the breach of its condition by the defendants. The amount to be recovered, the damages sustained by the plaintiff resulting from that breach, determined by the proof to be offered at the trial, i. e. by producing the execution placed in the hands of Fort to be executed on Burr’s property, and which is charged to have been wantonly or negligently omitted by Fort. The production of the execution and its proof on the trial would, prima facie, entitle the plaintiff to recover the amount specified therein as well as the amount of costs taxed by the clerk. We say that this would afford prima facie evidence of the amount which the plaintiff would be entitled to recover in the suit. It could not be conclusive of the fact for. the reason that the decree, from which the execution had emanated, would also be competent evidence, for either party, to repel the influence of the prima facie evidence afforded by the execution, in consequence of the principle that an execution must correspond, in essentials, with the judgment or decree upon which it is issued. But suppose, in point of fact, as it seems was the case in the instance before us, there should be a discrepancy between the amount named in the execution and the sum specified in the decree on which the execution issued. As a question of evidence, we have no doubt it would be competent to prove by the decree that the execution was for too much. The potency or impotency of the evidence in this case would be a question of law, for we presume that testimony dehors the record (decree) would not be competent to prove that the amount specified in the execution was correct, because the law would intend, under such circumstances, the existing discrepancy to proceed, rather from the misprision of the clerk in framing the execution, than the error of the Court which pronounced the decree; on the ground that intendments are more favorable towards judicial acts than those proceeding from ministerial officers, and for the additional reason that it is to be presumed that if there had been an error of fact in the decree, it would have been corrected on suggestion, or showing made to the Court by the party in interest. But independently of these views we conceive the question involved in this case has been put to rest by the case of Hunt et al. vs. Burton admr. delivered at the present term, and the cases therein cited.

There can be no question but that there is a variance between the declaration and the copy of the decree produced in evidence, as shown by the transcript. The declaration recites, in the inducement to the breach of the bond declared on, a decree for so much damages and costs, when the decree produced shows only an interlocutory decree dissolving the injunction obtained by Burr without an award of costs. The counsel for the plaintiff in error insists, that though no costs were awarded by the Chancellor, the legal effect"of the decree is correctly stated in the declaration, or, in other words, that a decree, like a judgment at law, carries with it the costs as an incident or consequence. In this, we conceive, he is mistaken. As to his correctness with reference to judgments at law, we will not stop to enquire. The question of costs in Courts of equity may be said to be, almost universally, a matter of discretion with the Chancellor, and, as a consequence that costs do not follow a decree as an incident, but must depend, except in cases regulated by express Statute, upon an affirmative decree. See 3 Dan. Ch. Pr. 357. 1 Eden on Inj. 116, note 1. It is not usual in chancery causes, except in special and rare cases, for the Chancellor to act upon his discretion, and pronounce a decree for costs until the final hearing or absolute disposition of the entire cause. In injunction suits, and upon a motion to dissolve, the practice seems to be, that if, upon the hearing of the motion to dissolve, the Court is of opinion that it was improperly granted, or that the case made by the complainant is contradicted, or not supported, it will order the injunction to be dissolved, either with or without costs, as the justice of the case may appear to require. See 3 Dan. Ch. Pr. as above. But a decree could only go for partial costs on sustaining a motion to dissolve an injunction. The question of full costs being always retained to the final hearing; (see Davenport vs. Mason, 2 Wash. (Va.) R. 258; Barrett vs. Skinner, 2 Hen. & Munf. R. 7,) for the reason that a decree dissolving an injunction is regarded as only interlocutory. See Johnston & Johnston vs. Alexander, Surv. of Morse, 1 Eng R. 308. As we have before shown, there was no decree for costs, either special or full, given on the dissolution of Burr’s injunction by the Chancery Court of Independence, for the reason, we are forced to presume, that the Chancellor who pronounced that decree intended to reserve the question as to costs to the final hearing of the cause. But it was unnecessary that we should have considered this latter point made by the counsel, for the reason that we have already held that the declaration in this case was unnecessarily particular and specific in stating the inducement to the breach of the bond declared on; that a general reference to the decree, without reciting its amount or date, was all sufficient, and that as a consequence, the proof need not correspond strictly with the allegations in that respect, it being esteemed sufficient that the proof should substantially correspond with such allegations.

Entertaining the views exjnessed on the point and questions discussed above, we are of opinion that there is error in the ruling of the Circuit Court of Pulaski county in this case, in this: that said Court should have considered the transcript of the decree and execution, offered by the plaintiff as evidence to support the issue formed on the plea of nul tiel record, regardless of the supposed variance between the allegations in the declaration and the proof.

The judgment will, therefore, be reversed, and the cause remanded to the Circuit Court of Pulaski county with directions that it be proceeded in according to law, and consistent with this opinion.

Absent, Hon. C. C. Scott.


author: Mr. Justice Hanly,

text:
    Clark et al. vs. Carnall.
    It is irregular to set a chancery cause for hearing, and absolutely hearing it, at the appearance term, against a party answering, without his affirmative consent. But if the defendant so answering do not complain, his co-defendants, against whom no relief is prayed or taken, and who are not affected by the decree, have no right to appeal.
    No appeal will lie from a decree pro confesso on default of answering, until it has been made final by the operation of the Statute, or the act of the Court.
    On a bill to foreclose a mortgage, to which junior incumbrancers were made parties, the Court should decree that the balance of the money arising from the sale after paying the mortgage debt, be brought into Court to be paid over to the parties according to their respective equities. But quere: Would a decree imperfect in this respect be reversible on appeal.

      Appeal from the Circuit Court of Sebastian county, in Chancery.

    Before tbe Hon. J. J. Clendenin, on interchange of circuits.
    Jordan, for the appellants.
    Hempstead, for the appellee.
   Mr. Justice Hanly,

delivered the opinion of the Court.

On the 5th July, 1855, the appellee, Carnall, filed his bill in the Circuit Court of Sebastian county in chancery, to foreclose a mortgage, charged to have been made by one Norton to one Fleming on sundry lots situate in the city of Fort Smith, to secure the payment of four notes for $250 each, bearing date, the date of such mortgage, and payable one, two, three and four years from the 2nd Sept., 1852. The bill charges that before the payment of either, or any of said notes, they were regularly and duly assigned and delivered to the complainant therein, and that at the time they were so set over, the mortgage was also assigned to him. It is further charged in the bill that subsequently to the execution of such mortgage, and its formal registration in the county of Sebastian, some five other mortgages were made by the defendant Norton on the same property, and that within the same time, some sixteen or seventeen judgments were recorded in the Sebastian Circuit Court against the same defendant, Norton, and that such judgments operated as liens on the same property. The subsequent mortgagees and judgment creditors are made defendants to the bill. The bill also makes the assignor of the complainant party defendant thereto.

At the return term of the subpoenas, all the parties to the bill were brought in, either by personal service, or by publication proved. There was no substantive appearance except for the defendant Fleming, who admitted in his answer all the main facts charged in the bill; but averred that, at the time he made the assignment of the notes and mortgage to the complainant, there was an agreement in writing entered into between them, to the effect that he was only to be responsible to the complainant for the amount of his notes in the event that he should be unable to make the same out of the defendant Norton, or the mortgaged premises, and asking that such might be the decree of the Court. A default was noted as to all the defendants at that term except as to Fleming. As to him, the transcript shows there was an order entered, at the same term, that the cause should be set down for hearing on bill, answer, and exhibits, which was accordingly done, and the cause at that term heard by the Court, without any affirmative consent, or further step taken by him after the coming in of his answer. No replication seems to have been filed to Fleming’s answer. On hearing the cause as to Fleming, the Chancellor seems to have rendered a decree, pro confesso, against the defendants not appearing, as well as on the hearing against Fleming, which, in substance, is that the defendant, Norton, the mortgagor, was found to be indebted to the complainant in the sum of $250, due 2d Sept. 1853, and the like sum due the 2d Sept., 1854, with interest on those sums up to the date of the decree; and further that he was also indebted to complainant in two like sums, the one due 2d Sept., 1855, and the other on the same day in 1858. That the defendant Norton should pay the'two sums due with interest, within 60 days, and in default thereof that the commissioner appointed therein should sell all or so much of the mortgaged premises as should be sufficient to pay the several debts so ascertained by the decree, at a time and place appointed therein, with the usual directions in regard to the notice of sale, etc. It was further authorized by the decree that, as to the notes not due, the complainant should have leave, by subsequent decree or order, to make said decree apply to them as they should fall due by their terms and tenor.

The bill, in this case, prayed process of subpoena against all the defendants: that they be required to answer the bill; that an account b'e taken, under the direction of the Court, of what is due upon the mortgages and judgments set out and stated in the bill; that the defendant Norton be decreed to pay what should appear to be due, with costs, and in default thereof, that the mortgaged premises be sold, and the proceeds applied according to the rights of the respective parties; and for general relief.

The appeal in this cause was prayed for and taken by only three defendants, Clark, Spring and Wheeler, who appear from the bill to have no interest in the case made out, except as subsequent mortgagees or judgment creditors. The mortgagor, Norton, and the defendant, Fleming, seem to have acquiesced in the decree of the Court below. The cause is only before this Court on the appeal of Clark, Spring and Wheeler.

It does not appear from the transcript that any evidence was offered at the hearing of the cause as to Fleming. It is supposed , therefore, that the hearing as to him was on the bill, his answer, and the exhibits (the mortgage and notes recited in the Bill) without further proof.

The appellants have assigned seven errors and insist that the cause must be reversed on their account. In the view that we shall take of this case, we do not deem it necessary to notice the assignment, except in a general way.

We are unable to perceive the principle upon which the appellants can hope to reverse this cause. It is manifest they are not directly affected by the decree pronounced against Norton, the mortgagor. It was wholly unnecessary that the complainant, Carnall, should have made them parties to his bill, and having done so, and no relief prayed for, or taken against them, we are forced to intend they were made by the complainant and considered by the Court below, merely as formal parties. If the decree that was taken, which the appellants appear to conceive or term a pro confesso decree against them, affected their interests in any way, they had a day in Court, after it was rendered, to have had their complaints respecting it heard and remedied by the Court. But it seems their mouths were closed as to this. No application was made for this purpose. No effort was made to set aside the supposed decree against them, and allow them to file their answers to the original bill, and cross bill against the complainants and their co-defendants, to have their rights protected in respect to the mortgaged premises, or the securities therein marshaled, and the rights of those in interest defined and settled by the Court. Without asking to have the decree set aside, they are shown, by the transcript, to have applied for and taken an appeal to this Court, and here their chief complaint is, that injustice has been done and errors committed against one of their co-defendants, Fleming, who has not complained, but seems to have acquiesced in the disposition of the cause as respects himself. As to Fleming, we have no doubt but that the Court below was premature in setting his cause for hearing, and absolutely hearing it at the same term at which his answer was filed, and that, too, without his affirmative consent. But this, as we have before intimated, is a matter which affects only Fleming under the peculiar state of this case, and of which the appellants have no right to complain either in this Court or any other forum. If Fleming had appealed, or complained of this irregularity, we might have been called upon, on that account, to have pronounced a reversal of the decree as to him.

It is, moreover, insisted for the appellants, that the decree rendered in tbe canse before us is not commensurate 'with the prayer of the bill, and is therefore imperfect and reversible. We admit, in one respect, the decree is imperfect, for the reason that the Court below might have proceeded to decree the money arising from the sale of the mortgaged premises to be brought into Court, and there have determined the rights of the parties in interest to the fund, in accordance with their respective equities, and we think this wonld have been the proper and more appropriate course. But for this alone, we do not feel that we should be warranted in reversing the decree, even if we supposed we had full cognizance of the cause as to the appellants, which we will hereafter determine. The rights of all the defendants to the excess of money arising from the sale of the mortgaged premises, may yet be protected and determined before this cause is fully disposed of in the Court below, after the commissioner, who has been appointed to make the sale under the decree already rendered, makes report of his proceedings to the Court and shows a balance of cash in his hands. It is presumed it would be competent for the Court, on petition or other appropriate showing on the part of the defendants, to determine the rights of those parties to that fund, with the view that their liens be enforced in their respective order of priority. See Tyson vs. Harrington, 6 Ired. Eq. Rep. 331.

Independent of the foregoing views, we think there can be no doubt but that the appellants were not entitled to the appeal granted them by the Court below, under the circumstances already shown; for the reason, that if there was really any decree rendered against or affectingj them, it was only interlocutory, and would not, under the Statute, ripen and mature into a final and complete decree, from which an appeal would lie, until after it was made final by operation of law or the act of the Court. It must be borne in mind, the decree in question, as to the appellants, was a decree nisi, on the bill having been taken for confessed in consequence of their default to answer or plead to the bill. We hold that an appeal will not lie from such a decree until after it has been made final by the operation of the Statute or the act of the Court. We esteem it during the time in a chrysalis state, and consequently imperfect.

It does not appear by the record before us that there was any error in the decree nisi, of which the appellants could legitimately complain: but as they probably might have appeared at the subsequent term of the Sebastian Circuit Court, before the decree nisi had become final, and shown their interest, they should be permitted to appear at the next term and file their answers within the first four days thereof if they should desire and ask so to do.

But as the decree appealed from is interlocutory and not final, as before held, an appeal will not lie from it to this Court. The cause is therefore dismissed.

Absent, Hon. C. C. Scott.


text:
    Burr vs. Burton as ad.
    The sworn denial in the answer of matters charged in the bill to be within the personal knowledge of the defendant, should be overturned by the testimony of two opposing witnesses, or one with strong corroborating circumstances. (5 Ark. Rep. 501; 1 Eng. Rep. 309.)
    A contract made by a party under compulsion, amounting to duress, either by actual violence or threat, is void; but duress by threats, to render a eoutract void, must be such as to excite a fear of some grievous wrong, as of death, or great bodify harm, or unlawful imprisonment. So, where two partners disagreed about the terms of dissolution and settlement of their partnership affairs — quarreled about it — and one of them, through the intervention of friends, executed certain notes to the other for the purchase of his interest, though he may have been induced to execute the notes for the purpose of closing the matter and getting clear of his partner, yet having voluntarily done so he was under no such compulsion as would constitute duress in a legal sense.

      Qncre: Where upon a dissolution of a partnership, the terms are reduced to writing, and the purchasing partner executes his notes to the retiring partner for the amount agreed upon to be paid him, can the former sot up an unwritten agreement that the payment to the latter was to be contingent upon the result of the closing up of the partnership affairs?
    Where a bill or answer contains scandalous and impertinent matter, the opposite partv should except thereto and cause it to be expunged: that counsel had fallen into a loose and improper practice as to such matter, or that the complainant’s bill contains scandalous and impertinent matter, is not a very satisfactory reason for disallowing exceptions to an answer for scandalous and impertinent matter, that should not be permitted to stain the records of a tribunal of justice.
    The complainant in a bill in chancery has no right to complain that the Circuit Court dissolved his injunction with damages, on the coming in of the answer, where upon the final hearing it appears that he was not entitled to an injunction.

      Appeal from, the Circuit Court of Independence co., in Chancery.

    The Hon. Beaufort H. Neely, Circuit Judge.
    Watkins & Gallagher for the appellants.
    Fowler. & Stillwell for the appellee.
   Mr. Chief Justice English

delivered the opinion of the Court,

On the 30th of December, 1850, Edwin T. Burr executed to Philip P. Burton, three promissory notes for $ 1000 each, payable one, two and three years from date. In July 1851, Philip P. Burton died, and his father, Patrick P. Burton, was after-wards appointed his administrator, being his sole heir and dis-tributee. On the 7th of July, 1853, he, as such administrator, brought an action of debt against Burr, on the two notes first due, in the Independence Circuit Court; and on the 20th March, 1854, recovered judgment for balance of debt $1,640, and $157 30 damages, and for costs. On the 12th January, 1854, Burton, as such administrator, commenced suit against Burr, on the note last due, in the same Court, and on the 20th March of the same year, obtained judgment for $750 residue of debt; $9 35 damages, and for costs. Executions were issued upon the two judgments, and levied on the property of Burr.

On the 16th of August, 1854, Burr filed a bill against Burton as such administrator, etc., on the chancery side of the Independence Circuit Court, for the purpose of enjoining both of the judgments. The grounds upon which he claims the injunction are substantially as follows:

In the spring of the year 1847, complainant having been engaged for many years in the mercantile business, in Batesville; desired to withdraw ostensibly therefrom, in order to wind up his long unsettled affairs. He also desired to set up in business a confidential clerk named Green F. Shaw, who had served him long and faithfully: and Philip P. Burton, the brother-in-law oí complainant. By this, he expected to reap a double benefit: 1st, by advancing the capital for Shaw & Burton, he would derive a proportionate share of the profits of their business; and 2d, Shaw being thoroughly acquainted with the past business of complainant, could afford him material assistance in collecting debts, etc. To accomplish this double purpose complainant advanced to Shaw & Burton, to enable them to carry on business, their whole capital stock, of the value of $10,-000, out of his own means, they being personally unable to obtain means, etc. With the capital so furnished, Shaw &; Burton proceeded to carry on business. Complainant not only acted as their agent in purchasing goods for them, but often, to enable them to replenish their stock, became responsible for money borrowed, and merchandise purchased by them, they being without credit, etc.

For a short time, all things betokened prosperity and success; but in the fall of 1847, Philip P. Burton got into a personal difficulty with one Dr. Aikin, whom he afterwards killed; and being indicted therefor, the anxiety and restlessness caused by the pendency of a criminal prosecution of such nature unfitted him for business. Besides, Burton having a natural desire to retain friends, conciliate persons not devoted to him, and to avoid offending any who might influence his fate; and knowing that complainant (who was his brother-in-law, and devoted to his cause) was the person to whom said firm was indebted for its capital, and would regard no sacrifice to protect him, the business of the firm was conducted in a loose and careless manner, and in the sale of the stock on hand, credit was offered and given to any and all persons desiring it. Philip P. Burton gradually became more and more dissipated and inattentive to business; and finally, after his acquittal, in the fall of 1849, the firm of Shaw & Burton being largely indebted, having realized no profits, but suffered heavy losses, was dissolved.

After its dissolution, the business was carried on by Philip P. Burton in his own name, for a few months, upon the remnant of capital stock remaining undisposed of, which complainant had purchased with his own means for the firm of Shaw & Burton, no addition having been made to said stock by Philip P. Burton.

Philip P. became more and more reckless and dissipated, but complainant desiring to reclaim his wife’s brother, if possible, in the winter of 1850 formed a partnership with him, for the purpose of carrying on a mercantile business in Batesville. Philip P. advanced no part of the capital stock, and his personal services were of no real advantage, but complainant was actuated in the matter by a desire to redeem him from his course of life; but it was of no avail, his dissipation, etc., increased until he made no distinction between friend and foe, and finally began to manifest inimical feelings towards complainant.

About that time, complainant paid to Shaw $3,000, not on account of any profits or assets of the then late firm of Shaw & Burton, (for Shaio admitted that, instead of profits, heavy losses had been sustained by that firm); but solely in payment of long and faithful services rendered by Shaw to complainant for a number of years, commencing in 1840, and for which he had never been recompensed.

This act of justice to Shaio only increased the personal violence of Philip P. Burton towards complainant; and the former meeting, in his daily walks, persons estranged from him in consequence of his unfortunate difficulty with Dr. Aiken, and his locality in the community becoming unpleasant, he, in the latter part of the year 1850, proposed to complainant to dissolve all business transactions with each other; and that complainant should take upon himself the burthen of winding up the same; and execute his notes to Philip P. for $3,000. To the first part of the proposition complainant consented, but with the second he refused to comply, representing to Philip P. as a reason therefor, that the firm of Shaw & Burton had lost money; the existing firm of Burr & Burton had not been doing business long enough to make any profits; that business had been dull; losses incurred; that he, Philip P., had in no way contributed to the capital stock of the concern; and was largely indebted to the firm for money and merchandize received by him from it, and appropriated to his individual use, etc. To these representations, Philip P. responded that he knew the firm of Shaw & Burton had sustained heavy losses instead of making profits; and that it was doubtful whether there would be any profits from the business of Burr & Burton when wound up; but that his' only motive in demanding said notes of complainant was to show conclusively to the world that he had entirely withdrawn from said firm, and had no further interest in it, or in anything connected therewith. That he had no intention to seek to enforce the payment of the notes until the affairs of the partnerships of Shaw & Burton, and Burr & Burton should be finally wound up; and then if it appeared that there were no profits to be divided, or that he was not entitled to anything over, and above what he should be found to be indebted individually to the partnership, he would thereupon cancel and surrender up to complainant his several notes. Philip P. again ■and again pressed the above proposition upon complainant for his acceptance; and he constantly refused to accede to such portion thereof as required him to execute to the said Philip P. his notes for $3,000, or any other sum. These refusals tended to inflame the already diseased mind of Philip P., and he often broke out in most violent and deadly threats against complainant, to such extent as to alarm many of his friends, and to induce them to believe that the said Philip P. might, (in the paroxysms of his ungovernable anger, laboring under such mental excitement and disability as he then was,) commit personal violence upon complainant, and even might take his life. To the oft repeated demands of Philip P. that complainant should comply with his proposition, were joined the entreaties of the personal friends of complainant, that he should comply therewith, in order to allay the hostile feelings of said Philip P., inasmuch as it was well known that in the end said notes would have to be canceled and surrendered up. Complainant was also advised by counsel, that such being the consideration of the notes, if upon winding up the partnership concerns there were no profits to divide, or that the share oí Philip P. did not exceed his indebtedness, etc.; the notes could not be collected, etc. Thereupon, moved by these considerations, and in order to avoid all personal difficulty with Philip P., and to allay and put to rest this family discord and contention, complainant acceded to the proposition, and it was agreed between him and Philip P. that the complainant should wind up the business of the firms of Shaw & Burton and Burr & Burton; that the latter partnership should be dissolved; that all the assets of both firms should be transferred to the sole and exclusive use and benefit of complainant; that he should pay all the debts of the said partnerships, and pay $2,911 50, borrowed by Philip P. of his father, Patrick P. Burton, (the defendant,) upon the guarantee of complainant; and pay certain other individual debts contracted by Philip P., and also make and deliver to him three promissory notes for $1,000 each, payable at one, two and three years. And it was further agreed, that when a settlement should take place between Patrick P. Burton and complainant, the former being indebted to the latter, the amount found due should be placed as a credit on the one of said notes last due. Pursuant to this agreement, complainant did, on the 30thJDe-cember, 1850, make and deliver to Philip P. the three notes as aforesaid; and it was at the time expressly agreed between them that Philip P. should retain the notes, and make no attempt to enforce the collection thereof until the winding up of the business of said partnerships; and then if it appeared there were no profits to divide between them, or that the individual indebtedness of Philip P. to the partnerships equaled or exceeded his share of the profits, if any, then he should cancel and surrender to complainant the said notes without delay. That the notes so executed are the same notes upon which Patrick P. Burton, as administrator of Philip P., obtained the judgments sought to be enjoined, contrary to the agreement aforesaid, and in fraud of complainant’s rights, was attempting to execute the same upon his property, etc.

Complainant further avers that the business of the two firms had not been completely wound up by him, and would not be for a long time, because of the great, numbers of bad and doubtful debts, and the necessity of temporizing in the efforts to collect them; but that sufficient had been done to show beyond the shadow of a doubt that there would be no profits aris-in therefrom; and that the individual indebtedness of Philip P. to the firms was largely more than any claim of his to assets, etc.; and if his administrator should be allowed, in the teeth of the above agreement, to collect the amount of the judgments upon the notes aforesaid, or any. part thereof, it would be a fraud upon complainant, etc. That no other consideration was given for the notes than that above stated, etc.

Complainant also alleges that after the execution of the notes, Philip P. became in various modes indebted to him, over and above the sums credited thereon; but these claims were disputed by the answer, and not proven at the hearing, and therefore the allegations of the bill in reference to them need not be particularly stated.

It is further alleged, that after the death of Philip P. and before administration, the defendant Patrick P. Burton, his father, sole heir, etc., being in possession of the three notes aforesaid, and well knowing that they were executed for the consideration, under the circumstances, and upon the agreement above stated; and being also well aware that upon a final settlement of the partnership concerns aforesaid, nothing would be due to Philip P., etc., promised complainant, of his own free will and accord, to deliver up said three notes to his wife, who was the daughter of said Patrick P., but he afterwards failed to do so.

Again, in July, 1851, said Patrick P. being' indebted to complainant in the sum of about $600, for house rent, money loaned, goods, etc., $400 of which was evidenced by note, etc., declared that he would deliver up said three notes to complainant’s wife, but in consideration thereof complainant should agree that the debt due from Patrick P. to him should be considered as paid and extinguished. And said Patrick P. moreover stated that inasmuch as complainant would never have to pay any of the balance of said three notes, they should just consider the amount due from him to complainant to be $250, and that he would enter that sum as a credit on the one of the three notes last due; although the amount really due from Patrick P. to complainant was over $600 as above stated. To this proposition complainant consented, and gave up to Patrick P. said note for $400, and considered the whole debt due from him to complainant as extinguished, and said Patrick P. never afterwards paid him one cent thereon, but only credited the one of the said three notes last due with $250, as aforesaid, etc.

That after this agreement with said Patrick P., complainant regarded the whole matter as settled, but in disregard thereof, and in violation of the agreement between Philip P. and complainant, etc., etc., said Patrick P. had afterwards sued upon said notes, etc., etc.

Prayer that an account be taken between complainant and Patrick P. as such administrator, etc., etc., and that the judgments at law upon the three notes be perpetually enjoined, etc., etc.

On the filing of the bill a temporary injunction was granted by the circuit judge, etc.

The answer of Burton was filed at the return term, on the 5th September, 1854.

He admits that Burr had been engaged in the mercantile business in Batesville, for some years prior to the formation of the firm of Shaw & Burton; but was not informed as to the precise objects or motives which he had in view touching the formation of such partnership. Nor did respondent know that Burr had advanced capital to the amount of $10,000, as alleged, but had heard, and believed it to be true, that whatever capital he did put into the firm was in goods which he then had on hand, or purchased; and he doubtless had an interest in the business of the firm; and aided in purchasing goods, though in this the partners did their part, and in borrowing money for the firm, Philip P. was more efficient than complainant. Respondent did not know what proportion of .stock the parties, or Burr, put into the firm, and he submits that this has nothing to do with the subject matter of this suit. Admits that Philip P. was involved in the difficulty referred to in the bill, indicted, tried and acquitted; but how far it occasioned a neglect of the busi-of the firm, respondent did not know, nor did he suppose that such matters had any connexion whatever with the subject matter of this suit.

lie admits that the firm of Shaw & Burton was dissolved about the time stated in the bill; and that for a short time af-terwards, the business was carried on in the name of Philip P. alone; but upon what terms, or with what capital, respondent did not know.

Admits that about the time stated in the bill, complainant and Philip P. entered into a mercantile partnership as alleged, but as to the terms, or proportion of capital advanced by each, respondent had no positive or particular knowledge, but he denies that complainant advanced all the capital. This firm succeeded to that of Shaw & Burton subject to the short time in which the business progressed in the name of Burton alone; and complainant and Philip P. both told respondent that they had purchased Shaw’s interest in the firm of Shaw & Burton at $3,000, which they gave him for it, and that they had made an advantageous purchase, his interest being worth $6,000. This interest and stock so purchased of Shaw, and the interest and stock of Philip P. in the firm of Shaw & Burton formed the basis of the stock on which Burr and Burton commenced their mercantile business, as they informed respondent. And respondent denies the allegations in the bill, that Philip P. did not advance any portion of the capital stock, and that his personal services were of no real advantage to the firm. And respondent states and believes that Philip P. advanced a fair proportion of the capital stock, and rendered his full share of advantageous personal services to the firm; and complainant admitted the same to respondent, speaking of the tact of Philip P. in the management of their business, and in raising funds, often being able to borrow money, as complainant told respondent, for the use of the firm upon his naked word, when complainant could not obtain it from the same persons on bond with security. Indeed, complainant told respondent that Philip P. was indispensable to him in the business, and that he could not get along without him. -Admits that Philip P. became dissipated toward the close of his life, but denies that it produced any such results as alleged in the bill, affecting prejudicially the business of the firms; and to respondent’s own knowledge, he rendered much valuable service to the firms and to complainant, in addition to the performance of ordinary business in making long and hazardous trips in the inclement seasons of the year for the purpose of selling horses purchased by the firms, and disposing of them to advantage.

Denies that the causes alleged in the bill are the true ones which induced Philip P. to seek a dissolution of the partnership with complainant; and avers that he became dissatisfied with the conduct of complainant on very different grounds, such as forbade a further association with him in business, etc., etc., and determined to seek a dissolution through means of the law, if it could not be done by agreement.

Denies that complainant made any such representations to Philip P., as alleged in the bill, of reasons why he could not, upon such dissolution, execute his notes to him for $3,000, or that Philip P. made any such reply thereto, as alleged; and that he would hold such notes subject to the contingency of profits on the winding up of the business of the firm, etc.; and this denial is not only made upon respondent’s belief, but on the statements made to him by Philip P. himself in his life time.

Has no personal knowledge of the threats of personal violence alleged to have been made by Philip P. towards complain ant, but denies the truth thereof to the extent stated, or that if any such threats were made, they were made with the view to coerce complainant to make such notes, or that they had any such influence upon him, or that any of the acts of complainant were done under duress, or on account of fear; and doubts if he Avas influenced in the matter, by the oft repeated entreaties of personal friends as pretended, etc.

Respondent avers, on the contrary, that complainant and Philip P. differing as to the terms of dissolution, the terms were finally agreed upon, by Wm. Byers acting for both parties, upon a full and deliberate conference as to the terms, and freely assented to by complainant, reduced to Avriting and signed by the parties as a final and absolute settlement and dissolution of the partnership, subject to no future contingencies whateAmr, except such as are expressed in the writing; the substance of which is in part stated in the bill, and a copy of the instrument exhibited with the ansAver, the original being in possession of H. F. Fairchild, and held by him for the benefit of the parties.

The three notes were made and delivered by complainant in pursuance of said article of dissolution; and respondent positively denies on the authority and statement of said Philip P. that at the time said notes were made, or at any other time, there Avas any agreement whatever, either express or implied, that the notes should be retained by Philip P. until the winding up of the business of said firms; and that he Avould not attempt to collect them until then; and that if it did not appear upon settlement that such sum was due to him, the notes should be delivered up and canceled; but the whole of such allegations and every part thereof are absolutely untrue, etc., etc. That Philip P. often told respondent that the acceptance of the notes for $3,000 was merely to obtain a dissolution of the firm, and get entirely free from complainant, and that that sum was much less than was actually and honestly due to him, and which respondent verily believed to be true. He therefore denies that he was attempting to enforce the payment of said notes in fraud of the rights of complainant as alleged, but Avas only seeking what was justly due, etc., etc.

He denies that said Philip P. at the time of his death, or respondent as his administrator since, was indebted to any of said firms in any sum whatever.

After disputing the validity of several claims set up by complainant against Philip P., as having accrued alter the execution of the notes, respondent states that every credit to which complainant was justly entitled, had been endorsed upon the notes, and allowed and deducted in obtaining the judgments thereon, etc.

He positively denies that he ever knew or believed, or that it was in fact true, that the three notes were executed for the considerations and inducements, and subject to the contingency, etc., alleged in the bill, or that he was ever aware that upon a final settlement of the partnership concerns nothing would be due to Philip P., etc.

He admits that after the death of Philip P. the notes were in his possession, but he positively denies that he, at any time, or in any manner, promised complainant to deliver up said notes to his wife, as alleged in the bill.

He denies flatly, that in July 1851, he was indebted to complainant in the sum of $600, or in any sum; and avers that the note for $400 mentioned in the bill as still due at that time, had been previously paid by respondent to complainant, though not given up, and its payment was admitted by complainant.

He denies that he ever offered to deliver up said three notes to complainant’s wife, on consideration that he would agree that the pretended debt alleged to be due from respondent to complainant should be considered as paid, etc.; or that he ever stated that inasmuch as complainant would never have any of the balance of said three notes to pay, they would just consider the amount due from respondent to complainant to be $250, and that respondent would enter that sum as a credit on the one of the three notes last due, and that complainant consented thereto; or that respondent entered such credit on the note. On the contrary he alleges the truth to be that complainant claimed of respondent $250, which he did not owe him, and insisted on having it credited on one of the notes, to which respondent assented for the sake of quiet, and for complainant’s accommodation, though he did not owe him one cent, and told him so at the time; and when respondent assented to it, complainant himself endorsed the credit on one of the notes. He denies that after this, complainant considered, or had any grounds to consider the whole matter settled as alleged, etc.,'or that respondent afterwards put said notes in suit, etc., etc., in violation of any agreement between complainant and Philip P., or between respondent and complainant as alleged. The copy of the written agreement dissolving the partnership between Burr & Burton, exhibited with the answer, and admitted to be correct, is substance, as follows:

This memorandum of agreement witnesseth that Philip P. Burton has this day sold to Edwin T. Burr, all his right, title and claim in and to the assets of every description of the firms of Shaw & Burton, Burr & Burton, and of the business done in the name of Philip P. Burton, which succeeded Shaw & Burton, upon the following terms and considerations: 1st. The said Burr binds himself to pay, or settle to the satisfaction of Wm. Byers, the debt Shaw & Burton owes Mrs. Emily S. Byers, wife of the said Wm. Byers, which amounts to the sum of $679 37.

2d. Burr is to pay off and discharge all of Philip P. Burton’s accounts and individual indebtedness about the town of Bates-ville, and surrounding country, viz: to Mrs. Newland,R. W. Watson & Co., George Daugherty, Mr. Aiken, Mr. Hunt, Mr. Max-field, Mr. Bates, Mr. Sloan, Col. C. F. M. Noland and Mr. Harp-t ham, and any other indebtedness of the said Philip P. Burton in this part of the State of Arkansas, although not herein mentioned, except one J. H. Egner.

3d. The said Burr is to pay and save the said Philip P. harmless from all debts and liabilities of the said firms of Shaw & Burton, P. P. Burton, successor of Shaw & Burton, and Burr & Burton, and that may in any wise grow out of the business of the said firms, and is to acquit the said Philip P. from all claims or demands which he the said Burr may have against the said Philip P. of every description whatever.

4th. The said Burr is to pay in the manner following to the said Philip P., the amount the said Philip P. has advanced to the said firm of Shaw & Burton, to wit: the sum of $2,911 50, for which sum he is to execute his two several notes to P. P. Burton, one for $1,455 75, with ten per cent, interest from date, payable six months after date, the other for the same sum, and same rate of interest, payable twelve months after date.

5th. Burr is to pay to said Philip B. Burton, in addition to the above, the sum of $3,000, for which sum he is to execute to the said Philip P. his three several-notes for $1,000 each, payable one, two and three years from date.

6th. Burr is to pay said Philip P. money for his expenses when he leaves this place, say from one to two hundred dollars, which sum, when paid, is to be credited on the note of $1,000 first due above named.

7th. Burr binds himself to pay a debt of two hundred dollars, which the said Philip P. owes to Joseph H. Egner, which said sum the said Philip is to credit on the $1,000 note last due above , named. And it is further understood between the parties, that there is a settlement to be made between said Burr and Dr. Patrick P. Burton, and the said Philip P. hereby agrees with the said Burr, that whenever said settlement is made between the said Burr and Dr. Patrick P. Burton, that whatever amount may fall due from the said Patrick P. Burton to the said Burr upon such settlement, that he, said Philip P. will credit the same on the said note of $1,000 above named last to become due.

8th. And the said Philip P. Burton acquits the said Burr of all demands which he may or might have against him up to this date.

Done at Batesville, this 30th of December, A. D. 1850.

E. T. BURR,

P. P. BURTON.”

The cause was finally heard, at the March term, 1855, on bill, answer, replication, exhibits, the depositions of Shaw, Fair-child and Byers, and the bill dismissed for want of equity] and Burr appealed from the decree.

It may be seen from the above statement of the allegations of the bill, that the complainant sought an injunction of the judgments at law upon two grounds: 1st, that the notes upon which the judgments were obtained, were executed by him under circumstances of duress; and 2d, that they were made upon an agreement that they were not tobe paid until the final settlement of the mercantile firms in which Philip P. Burton was interested, and then only in the event that it appeared that the amount of the notes was due to him out of the profits of the business, etc.; and that complainant had so far settled the affairs of these firms to ascertain that there were no profits, and that nothing was due to Philip P. therefrom.

Passing over the objection of the counsel for the appellee that these grounds of relief were properly cognizable as de-fences to the suits at law, upon the notes; and that the complainant having failed to interpose them there, was precluded from resorting to a court of equity for relief, we will proceed to determine whether the complainant has made out his case upon the merits.

It may be remarked that every material allegation of the bill tending to support the grounds for relief relied upon by the complainant, is positively denied by the answer of the defendant.

To say the least of the answer, it had the effect to put the material allegations of the bill at issue, and require them to be proven by the complainant. And the defendant’s sworn denial of matters charged to be within his personal knowledge, as some of the matters in the bill are, should be overturned by the testimony of two opposing witnesses, or one with strong corroborating circumstances. Gresley's Eq. Ev. 227. 1 Greenl. Ev., sec. 260. Watson vs. Palmer, 5 Ark. R. 501. Cummins ad. vs. Harrell & Scott, 1 Eng. 309.

The deposition of Fairchild, read by complainant, proves nothing material to the issues in the cause. He merely states that the original instrument of agreement dissolving the partnership between Burr & Burton, after its execution by the parties was placed in his hands for safe keeping, and that the copy exhibited with the answer of defendant is substantially correct. He knew of no other agreement, or understanding between the parties.

The deposition of Wm. Byers was read "by defendant. He states, in substance, that in the latter part of December, 1850, Philip P. Burton called upon him to act as a friend and attorney in effecting a sale of his interest in the mercantile firms of Shaw & Burton, P. P. Burton, successor, etc., and Burr & Burton, to complainant Burr; at which time there appeared to be some difficulty or misunderstanding between said Philip P. and Burr about the matter of settlement or sale. Witness consented to act as the friend and attorney of Philip P.; and, as such, he had several conferences with Burr about the matter; and Burr and Philip P had several interviews on the same subject in his presence; but they could not agree about all the details of the sale and purchase of Philip P.’s interest in the firms, etc. They could not agree in what manner Burr should pay witness what was due to his wife, nor as to the time that Burr should have to pay the amounts of capital or money put into the firm of Shaw & Burton by Philip P., nor as to the security that Burr should give for the payment of the $3,000. Philip P. insisted that Burr should pay Mrs. Byers in cash down, and Burr wanted to make some other arrangement, etc. Philip P. insisted that Burr should pay said capital immediately, and Burr insisted upon time. Philip P. insisted that Burr should give security for the three notes of $1,000 each, payable in one, two and three years; but Burr refused to give security. The disagreement was so great that Philip P. declined to have anything further to say to Burr on the subject, but authorized witness to make the sale and settlement for him, investing him with full authority, and agreeing to abide by and confirm whatever he did in the matter. Witness then had several conversations with Burr and with Fairchild, who appeared to be acting as the friend and attorney of Burr in the matter; and finally witness drew up an agreement to be signed by the parties, and submit-ed it to Fairchild, as the friend and attorney of Burr; and requested him to take it to Burr, and present it to him for him to sign, as the last proposition that would be made by witness in behalf of Philip P. in relation to the matter. Fairchild took the paper thus submitted to the store where Bun* & Burton had been doing business, and in a few minutes returned with it executed by Burr. Witness then took it to Philip P., read and explained it to him, and he executed it. Witness then, at the request of Philip P. and Burr, deposited the instrument with Fairchild for safe keeping. A copy thereof is exhibited with the answer of defendant. This written agreement, as witness understood it at the time, was a final settlement of the subject matter to which it related, tie knew of no other agreement, or conditions to said agreement, than are expressed in the instrument so executed by the parties. A few days after its execution, Burr paid witness the amount therein stipulated to be paid to his wife; and executed the notes named in said agreement under it, and witness understood the matter finally settled. The three notes upon which the judgments sought to be enjoined were obtained, are the same three notes mentioned in the agreement, and were executed by Burr under said agreement. It was about a week, from the time witness agreed to act as the friend and attorney of Philip P. in the matter, until the contract was executed, during which time there was a number of interviews between the parties, etc. In speaking of capital stock above, witness referred to a certain amount of money which he understood from Burr & Burton, that Patrick P. Burton, the defendant, had loaned to Philip P. or to Shaw & Burton, or in some way permitted Philip P. to put into said business, and which was to be paid or returned to said Patrick P.

During the negotiations between Burr and Philip P., the latter told witness that he had closed the front door of the store, and that it never should be opened until said business was settled. He said he and Burr had had a quarrel about the matter, and his feelings become so exasperated against Burr that he finally declined having any interview with him about the matter, for fear they would have a difficulty, and submitted the whole matter to witness to settle for him. Witness knowing the temperament of Philip P., and fearing that they might have a difficulty, advised him not to have any further intercourse with Burr, but to submit the matter to him, which Philip P. did, and witness finally effected the settlement.

Philip P. for some time before he sold out to Burr, as above stated, had been in the habit of drinking ardent spirits, and witness thought the habit constant, but he had no recollection of ever seeing him intoxicated, or so much under the influence of liquor as to impair his business faculties. Witness thought the habit of drinking increased on him.

The deposition of Shaw was read by complainant. He states in substance, that he commenced business with Philip P. Burton, under the style of Shaw and Burton, in March 1847, sold his interest in the firm to Philip P. in Nov., 1849, for $3,000, after his accounts were balanced “ inexclusive ” of his expenses and wages as clerk of Burr, “ which were paid or settled by Burr except a small balance due on the $3,000, which he looked to Burr to payIf Philip P. ever put any capital in the firm of Shaw & Burton, witness never knew it. Burr was interested as a silent partner, and put in all the goods the firm commenced business on, which invoiced about $10,000. Burr was to contribute his personal services to the firm, which he did as long as witness was a partner. } Philip P. got into the difficulty with Aikin a short time after the firm commenced, and devoted but little time to the business, until he was acquitted, which occurred a short time before witness sold out. His difficulty was prejudicial to the business of the firm at home, and impaired its credit abroad. It prevented the collection of claims, etc. After witness sold out, the house went on in the name of Philip P. until March or April, 1850, when the firm of Burr and Burton was formed. Witness was absent from March until November. Soon after his return, Philip P. told him he intended to quit business and leave the country, and if he could not close up one way he would another. He then closed the doors, and told Burr they should not be opened until they settled — that he intended going to Texas — that he was tired of business, and “ disgusted ” with the community. He said he intended to have a settlement with Burr without going into Court.

Burr and Philip P. finally settled, the exact terms of which witness did not know — But Burr was to execute three promissory notes to .Philip P. after paying some amounts for him about Batesville, and a debt the bouse owed Mrs. Byers. Philip P. also said that if he was satisfied the house had made no money he did not want anything from Burr, but that he believed the result of business would be that the house had made money.

After the settlement between Burr and Philip P., the latter told witness confidentially that he never intended to enforce the collection of the notes from Burr — that is, that he never intended that they should interfere with Burr’s business — that he never intended to harrass him, for he had the kindest feelings toward Burr — that he never intended to call on Burr for the money until he knew Burr could pay it without its embarrassing him.

The conversations between Burr and Philip P. about their business, during the time the doors of the store were closed, were generally of a quarrelsome character as far as witness knew; and Philip P. frequently requested witness to talk to Burr about their business — saying that he would not talk to Burr about it, that Burr could out talk him, and that he wanted other persons than himself and Burr to settle their business.

During the quarrelsome conversation between Burr and Philip P., the latter said he would have a settlement, and that he had the keys of the store, and the pocket book containing the notes due to Burr and the several concerns, and that he would not give them up until the business was settled between him and Burr. Philip P. first demanded of Burr a release of all liabilities to him, the firm of Shaw & Burton, the house of P. P. Burton, and firm of Burr & Burton, and $5,000, over and above his liabilities to those houses. He finally demanded to have the sum of $3,000 from Burr, but he also told witness that if the house had not made money, he would not demand that amount from Burr; but he was satisfied they had made monej’, and therefore, he demanded a settlement of Bun*- on the foregoing terms.

Witness could not say whether the firm of Shaw & Burton had made money or not. There were a great many outstanding debts still due the firm, and Burr had been exerting himself to close up the business of the firm. At the time witness sold out to Philip P., the firm owed Burr for stock about $10,000. The whole indebtedness of the firm was about $15,000 or $18,-000, besides its indebtedness to Burr. The firm was in the habit of borrowing money, but in this Philip P. was not more efficient than either of the other members. He borrowed for the firm about $2,000 from his father, etc., but used part of it himself, etc. Philip P. never went off with a drove of horses, or other produce, for the firm of Shaw & Burton. He went to New Orleans once, mostly for his health, and while there purchased about $2,000 worth of groceries for this firm. Shortly after the dissolution of this firm, he went off with a drove of horses, and returned with some three, four, or five of them.

The above is the substance of all the testimony introduced upon the hearing.

A contract made by a party, under compulsion, is void; because consent is of the essence of a contract, and where there is compulsion, there is no consent, for this must be voluntary. Such a contract is void for another reason. It is founded in wrong or fraud. It is not, however, all compulsion which has this effect; it-must amount to duress. But this duress maybe either actual violence, or threat. 1 Parsons on Cont. 319.

The bill alleges, in this case, that Philip P. Burton threatened complainant, and that the apprehension of personal violence was one of the inducements to the execution of the notes.

Duress, by threats, says Me. Paesons (lb. 320,) exists not wherever a party has entered into a contract under the influence of a threat, but only where such a threat excites a fear of some grievous wrong, as of death, or great bodily injury, or unlawful imprisonment.

The evidence shows that Philip P. Burton and Burr disagreed about the terms of dissolution and settlement of their partnership affars — that Philip P. quarreled with Burr about the matter — and, finally through the intervention of their friends, Byers and Fairchild, they came to an agreement, and in pursuance of this agreement the notes were executed. Possibly Burr was induced, under all tbe circumstances, to consent to terms which he did not regard as being as favorable to him as they should have been, in order to close up the matter, and get clear of Philip P.; but it is fairly to be inferred from all the testimony, that he finally executed the notes voluntarily, and under no such compulsion as would constitute duress in a legal sense.

The proof also fails to sustain the other ground of relief relied on by Burr. It appears that the terms of dissolution, and sale of the interest of Philip P. to Burr, as finally agreed upon, were reduced to writing, signed by the parties, and the three notes in question executed by Burr in pursuance thereof. There is nothing in the written agreement indicating that the payment of the notes was to be contingent upon the result of the closing up of the partnership affairs. If it were competent for Burr to set up an outside unwritten agreement to defeat the payment of the notes, he failed to establish it by proof. Neither Byers nor Fairchild testifies to any such agreement. Shaw does not pretend to have been present when the terms of settlement were agreed upon, or when the written instrument, or the notes were executed.

Upon the whole record, the final decree dismissing the bill for want of equity, must be affirmed.

During the progress of the cause several exceptions were taken by complainant to decisions of the Court, which are discussed by his counsel here, and which it may be well to notice, though their determination will not affect the final result, as announced above.

On the filing of the answer, the complainant filed exceptions thereto, and moved the Court to expunge therefrom a number of expressions and portions of sentences as impertinent and scandalous, which were particularly designated. The exceptions being, by consent of parties, submitted to the Court, without reference to the Master, the Court decided as follows, the record states: — “ The Court is of the opinion that although the matter of the answer excepted to, is not couched in such language as is strictly proper for an answer, and under other circumstances part of the same might be considered scandalous or impertinent, yet, considering the loose and improper practice, which counsel have generally fallen into in such matters, and that the bill contains fully as much scandalous and impertinent matter as the answer, and which was the foundation of such matter in the answer, said exceptions ought, nor ought either of them to be sustained, and they are therefore, disallowed.”

The complainant excepted to the decision.

Neither of the reasons given by the Court for its decision is very satisfactory. If the bill contained scandalous and impertinent matter, the defendant should have excepted thereto, and caused it to be expunged, at the cost of the complainant and his solicitor. Story’s Eq. Pleading sec. 266. If counsel had generally fallen into the loose and improper practice of inserting scandalous and impertinent matter in their pleadings, it was the duty of the Court to reform a practice so unprofessional; and it might well have commenced the reformation in this case.

In the answer, some of the allegations of the bill are pronounced “ naked and unmitigated falsehoodsothers “ knowingly and willfully false,” and in more than one instance, dishonesty and perjury are in effect imputed to the complainant. There are expressions also in the bill, that were unnecessary and improper.

A direct charge of a fact in the bill, or a positive denial in the answer, is sufficient for all the legal purposes of pleading, without resorting to imputations of dishonesty, willful falsehood, perjury, etc. These are the expressions of excited litigants, and should not be permitted to stain the records of a dignified tribunal of justice.

On the coming in of the answer, supported by the affidavit of Byers, stating substantially what he afterwards stated in his deposition, the Court dissolved the injunction with damages, refusing to continue the injunction on the motion of complainant until the next term, etc., and exceptions were taken to these decisions of the Court, etc. The final result of the cause showing that complainant was not entitled to an injunction, he has no grounds to complain of these decisions, and they need not therefore be reviewed.

The decree of the Court below is affirmed.

Absent, Hon. C. C. Scott.