text:
    Reddick McKee, plaintiff in error, v. Jacob Retter et al., defendants in error.

      Error to Fulton.

    A. sold to B. a quantity of wheat, and received a small sum in part payment. The vendor executed an instrument in writing stating the bargain, and agreed to deliver the wheat at a place mentioned therein by a specified time, put up in sacks, and in good shipping order, the sacks to be furnished by the purchaser of the wheat as soon as they could be obtained from St. Louis, and the balance of the purchase money was to be paid on presentation of the warehouse receipts. The sacks were not furnished, nor was the wheat delivered. The declaration averred a readiness to deliver the sacks, and the neglect of the vendor to deliver the wheat: Held, that the delivery of the wheat was a condition precedent.
    Assumpsit, in the Fulton Circuit Court, brought by the plaintiff in error against the defendants in error upon the following instrument:
    “Fulton County, Farmers precinct, Feb. 16,1847. Received of R. McKee, by the hand of L. Seeley, 15$ in part payment for 1500 bushels of good clear merchantable wheat at 55 cents per bushel, which I have this day sold to him and agree to deliver into the warehouse of Daniel March at Sparks Landing on the Illinois River, put up in sacks and in good shipping order, &c., the sacks to be furni'shed. by said McKee as soon as they can be obtained from St. Louis. All of the wheat is to be delivered by the 1st day of April next, and the balance of the money to be paid in good current Missouri money on presenting the warehouse receipts to R. McKee or his order at Beardstown, Ills.
    William Retter.
    Jacob Retter.”
    The cause was tried before the Hon. Norman H. Purple, at the August term, 1848, upon a demurrer to the declaration, when the same was sustained, and a judgment rendered in favor of the defendants for costs.
    2?. S. Blackwell, for the plaintiff in error.
    1. The delivery of the sacks was not a condition precedent. Where a covenant or promise goes only to a part of the consideration of the contract, and a breach may be paid for in damages, it is an independent covenant or promise, and an action lies without averring a performance. Porridge v. Cole, 1 Saund. 320, b note; 1 Chitty’s Pl. 355; Duke of St. Albans v. Shore, 1 H. Black. 278-9; Campbell v. Jones, 6. T. R. 570; Ritchie v. Atkinson, 10 East, 306; Havelock v. Geddes, ib. 562-4; Davidson v. Gwynne, 12 do. 388-9; Stevens v. Curling, 32 Eng. Com. Law R. 153; Fishmonger's Co. v. Robertson, 44 do. 112; Brunett v. Pixley, 1 Johns. 250; Fothergill v. Walton, 8 Taunt. 576.
    2. Where the performance of a consideration precedent is'prevented or dispensed with by the conduct of the defendant, plaintiff need not aver performance in his declaration.

      II. M. Wead, for the defendants in error.
    1. He who wishes to avail himself of a contract containing conditions precedent, on his part to be performed, must plead and prove performance of those conditions precedent. 8 East, 437; Smith v. Wilson, 1 Saund. 320, b; 3 Comyn’s Dig. 92, note; 1 Powell on Con. 417, 421; 8 New Hamp. 213; Clement v. Clement, 3 Mass. 106; Little v. Frost, 5 do. 321.

      2. Is this a condition precedent? 1 Saund. 320, b; Ritchie v. Atkinson, 10 East, 306; Faxon v. Mansfield, 2 Mass. 147; Buckley v. Brainard, 2 Root, 5; 9 Mass. 78; 2 Johns. 145; Cunningham v. Morrill, 10 Johns. 203; 1 Blackf. 314; 2 do. 151; Clement v. Clement, 8 New Hamp. 210; Downer v. Frizzle, 10 Verm. 541; Mill Dam Foundery v. Hovey, 21 Pick. 417.
    3. No sufficient performance or excuse for non-performance is alleged in the declaration.
   The Opinion of the Court was delivered by

Caton, J.

The sufficiency of the first count in this declaration depends upon the construction to be given to the agreement declared on. By that agreement, tie defendants sold to the plaintiffs 1500 bushels of good merchantable wheat, at a certain price, and to be delivered at a certain place by the first day of April, 1847, put up in sacks, and in good shipping order, the sacks to be furnished by the plaintiff as soon as they could be obtained from St. Louis. Was the furnishing of the sacks a condition precedent to the delivery of the wheat ? It was precedent to the sacking of the wheat, of course. But because for the want of the sacks to be furnished by the plaintiff the defendants could not put the wheat in the condition contemplated by the bill of sale, should they be allowed to say that they would not deliver it at all? Should they be allowed to complain because they were not put to the trouble of sacking the wheat? If the use of the sacks would have been an accommodation to the defendants, they might have been justified in furnishing them themselves, and charging the amount to the plaintiff. It hardly would be conformable to the principles of justice, to allow the defendants to avoid the contract altogether, on account of so insignificant a failure by the plaintiff, as compared with the principal objects of the contract. Suppose they had received payment in full, instead of payment in part, as was the case, should the defendants be allowed to say, that because they could not sack the wheat, they would not even deliver it in bulk, but would keep it altogether ? The principle would be the same, whether the payment had been made in whole or only in part. The non-delivery of the sacks was to the detriment of the plaintiff rather than of the defendants, for it excused them from sacking the wheat, and entitled them to full compensation without performance in that particular. The furnishing of the sacks was precedent to the sacking of the wheat, but not to the delivery. They might deliver it without the sacks, although not in as ■good a condition as if the plaintiff had furnished the facilities which he had agreed to. In construing this agreement, like ■all others, we must look at the sense and reason of the thing, in order to determine whether the furnishing of the sacks was a condition precedent to any part or the performance by the defendants. So "far as the acts to be done by the plaintiff were necessary to enable the defendants to perform, they were precedent, and no further. This we think is reasonable and sensible, and is much more conformable to the spirit of the agreement and the ends-of justice, than it would be to say, that because by reason of the neglect of the plaintiff, the defendants were prevented from performing some of the minor parts of their agreement, they should be excused from performing any. We cannot concur in the reasonableness of such a construction, by which the defendants might have received the full pay for their wheat, and still kept it themselves, and that too, because they were not called upon to do as much as they had agreed to.

The second count is substantially the same as the first, only it goes further, and avers that the defendants sold the wheat to another before the time agreed upon for the delivery to the plaintiff; but it is unnecessary to discuss the ■effect of this averment, as the count shows a right in the plaintiff to recover without it.

The judgment of the Circuit Court is reversed with costs, ■and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    William S. Thomas, public administrator of St. Clair County, plaintiff in error, v. Lyman Adams, defendant in error.

      Error to St. Clair.

    A public administrator must give a bond and take out letters of administration in each particular case, before he can be invested with any control over an estate.
    Tlie administrator of an intestate, pending a suit in the Supreme Court, died, and on the suggesti. n of his death, the public administrator of the county, by order of the Court, was substituted in his place. At a succeeding term, a motion was made to dismiss the writ of error because the public administrator, not having taken out letters of administration in the case, had no authority to maintain the suit. The motion was sustained.
    A writ of error was prosecuted in the Supreme Court by William G. Goforth, administrator of Curtis Hale, deceased, against Lyman Adams. Pending the suit Goforth died, and his counsel suggested his death to the Court, whereupon the following order was entered upon the records, to wit:
    “William G. Goforth, 1 administrator of -- ] w , . V Error to St. Clair. v. j Lyman Adams. j
    On this day came the said plaintiff by William Martin, his attorney, and suggests the death of the said Goforth, and on his motion, it is ordered that he have leave to file the record herein, and to substitute the name of William S. Thomas, public administrator of the said-in the room and stead of the said William G. Goforth.”
    . At the present term, JD. J. Baker, counsel for the defendant in error, moved the Court to quash the writ of error in this case issued and to dismiss the suit, because
    1. The said William S. Thomas’ name has been used as plaintiff herein without his knowledge or consent;
    2. The said William S. Thomas is not administrator of the said Curtis Hale, deceased ; and
    3. The said William S. Thomas in the right of administrator of the said Curtis Hale, deceased, has not power and authority to have and maintain this suit in his name as such administrator, without the order of the Court allowing the same.
    The affidavit of the defendant was filed at the same time stating that Thomas was not the administrator of the estate, as also a certificate of the Probate Justice of St. Clair County, stating that he had neither applied for letters of administration or filed a bond, and that no one else had done so.

      W. Martin, for the plaintiff in error,
    resisted the motion, and relied upon the order of Court of the last term.
   The Opinion of the Court was delivered by

Treat, C. J.

Adams recovered a judgment against Go-forth, administrator of Hale. The record was filed at the last term of this Court, and on a suggestion of the death of Goforth, leave was given to sue out a writ of erior in the name of the public administrator of St. Glair county. The counsel of Adams now moves to dismiss the writ of.error, and in support of the motion, produces the certificate of the Probate Justice showing that the public administrator has never taken out letters of administration on the estate of Hale.

The order of the last term was imprqvidently obtained. The public administrator, merely because he is such, has no authority to prosecute a writ of error to reverse the judgment. He must first obtain letters of administration on the estate. The statute makes it his duty to administer on certain estates, but requires him to give bond and take out letters of administration in each-particular case, before he is invested with any control over the estate. Rev. Stat. ch. 109, § 60. In this case, he is a mere stranger to the record, and has no power to prosecute the writ of error.

The motion will be sustained.

Motion sutained.

      Trumbull, J, having been of counsel in this case, took no part in the decision of the motion.


text:
    Nathaniel Buckmaster, appellant, v. Charles D. Drake, appellee.

      Jlppeal from, Madison.

    Upon a motion that a sheriff pay over money collected hy him on execution, it was held that he was liable in that mode of proceeding for the amount of the money so collected and withheld from the plaintiff, together with interest thereon from the time of collection at the rate of twenty per centum per annum.
    A sheriff does not fully complete the execution of process until he has rendered the money to the plaintiff. The fact of his going out of office before its completion does not absolve him from liability to pay over the money and the interest provided in such case, on motion.
    Motion, in the Madison Circuit Court, made by the appellee, who was plaintiff in an execution against one Henry K. Lathy, against the appellant, late sheriff of the county. The motion was made at the March term, 1848, the Hon. Gustavus P. Koerner presiding, and an order entered, requiring the appellant to pay instanter the amount of the debt claimed in the execution, together with interest at the rate of twenty per cent, from the return day of the execution as damages for failing to pay over according to law.
    The defendant made no defence in the Circuit Court. He subsequently filed an affidavit, and moved to set aside the default, which was overruled.
    The following are copies of the notice, affidavit and motion in the cause:
    (Notice.)
    “State of Illinois, ) In the Circuit Court of said county, Madison county, \ SS’ of March term, A. D. 1848.

      Charles D. Drake v. Henry K. Lathy.

    Judgment rendered in the Municipal Court of the City of Alton, county and State aforesaid, October term thereof, A. D. 1837, on which an execution issued from said last named Court to N. Buckmaster, then Sheriff- of Madison county on the 2d day of November, A. D. 1837, and returned with the following indorsement: “This execution is satisfied.” (Signed,) “N. Buckmaster, Sheriff, M. C.”
    Col. Nathaniel Buckmaster, late Sheriff, &c.—
    Sir, — ‘You will please take notice that on the first day of next term of said Circuit Court, to be holden at Edwardsville on the third Monday in March next, or so soon thereafter as counsel can be heard, a motion will be made for an order upon you to pay over the money collected by you upon the above named execution, together with twenty per cent, damages thereon from the time of collection of the same, according to the statute in such case made and provided.
    Very Respectfully,
    Alton, Feb’y 5, 1848. Charles D. Drake,
    by Lewis B. Parsons, his att’y.”
    (Affidavit.)
    State of Illinois, ) gg Madison County, $
    Frederick T. Krafft, being duly sworn, deposeth and says that he served the within notice on the within named Nathaniel Buckmaster, by leaving an exact copy of the same with said Buckmaster on the 7th day of March, A. D. 1848. (Signed) Fred. T. Krafft.”
    Subscribed and sworn to before me this 8th day of March, A. D. 1848.
    Wm. T. Brown, Clerk.”
    (Motion.)
    “Charles D. Drake v. Nathaniel Buckmaster.
    The plaintiff in this cause moves the Court to grant an order on said defendant to pay said plaintiff the sum of one hundred and twenty six ^ dollars, with twenty per cent, damages thereon from the time of collectien of the same, on or about the first day of February, A. D. 1848, in accordance with the notice filed herein.
    March 20, 1848'. Lewis B. Parsons,
    Att’y for pl’ff.”

      TV. Martin, for the appellant,
    contended that the party had not laid a sufficient foundation for a recovery of the twenty per cent, under the statute. Rev. Stat. 419, § 44.
    The notice is defective. It does not state that he is notified to pay over the debt and six per cent, interest, and that in default thereof, he will apply for the statutory judgment. It is defective, again, in stating that he will apply for a judgment and twenty per cent, damages, not interest.
    Proof should have been made that Buckmaster had re•ceived the money, and that proof by affidavit.

      1L TV. Billings L. B. Parsons, for the appellee.
    1. The proceedings in the .C.ourt below were correct and in accordance with the statute. Rev. Stat. ch. 83, § 44; R. L. 494, §30; Beaird v. Foreman, 1 Scam. 40.
    2. An application to set aside a default is addressed to the sound discretion of the Court, and the manner of its exercise cannot be assigned for error. Wickersham v. The People, 1 Scam. 130.
    Nor does it come within the provisions of the statute of 1837. See § 23, Practice Act of 1845; Wallace v. Jerome, 1 Scam. 524.
   The Opinion of the Court was delivered by

Treat, C. J.

This application was founded on the "44.fh sec., 83d eh., Rev. Stat., which is a literal transcript of sec. 30 of the Practice Act of 1827. Under the last named Act, it was decided in the case of Beaird v. Foreman, 1 Scam. 40, that a sheriff was liable in this mode of proceeding for the amount of money collected on an execution and withheld from the plaintiff together with interest thereon from the time of collection, at the rate of twenty per centum per annum. We regard that decision as.conclusive of the present case. The record shows that the proceedings prior to the judgment were regular, and such as to invest the Court with jurisdiction. The evidence on which the Court based its judgment is not before us; but we are bound to presume that the original liability and present delinquency of the appellant were fully established. This peculiar statute was enacted for wise purposes. It was intended to secure the prompt performance of duty on the part of sheriffs, and provide plaintiffs a summary remedy for the violation of their rights. A sheriff can easily avoid all liability under its provisions by the faithful discharge of his official duties. If he omits to do this, he must abide by the consequences, however harshly they may fall.

The fact that the appellant was out of office when this proceeding was commenced, does not absolve him from liability. He'is still chargeable as sheriff in this particular case. He does not fully complete the execution of the process until he has rendered the money to the plaintiff. Any other construction of the statute might render its provisions nugatory. A sheriff might resign his office, and thus cease to be amenable to the penalties of the law.

The revision of the statutes in 1845 did not affect or change the liability of the appellant. The same provision was re-enacted; and the 38th and 39th sections of chap. 90 expressly continue the liability, and remove all difficulty in the way of enforcing it.

The motion to set aside the default was addressed to the sound discretion of the Court. The decision thereof cannot be assigned for error. Harmison v. Clark, 1 Scam. 131; Garner v. Crenshaw, ib. 143; Wallace v. Jerome, ib. 524.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.


author: Caton, J.

text:
    John Fryrear, appellant, v. Garrett L. Lawrence et al., appellees.

      Jlppeal from Scott.

    It is only when the defendant, in a suit of Chancery, states facts wilhin his knowledge, that his answer must be overcome by evidence equivalent to the testimony of two witnesses.
    A copy of a record of a County Court in Missouri, properly certified under the Act of Congress, showing a settlement and final determination of an administration upon an estate, and adjudging a balance in favor of the administration, and against the estate, was held conclusive as to all matters within the jurisdiction of such Court, unless impeached for fraud.
    Bill in Chancery in the Scott Circuit Court, brought by the appellees against the appellant and others. A decree was rendered in favor of the appellees for the sum of $159, among other things, and entered as of the October term, 1847, having been decided in vacation by the Hon. Samuel D. Lockwood, presiding judge.
    The following is an abstract of the pleadings and evidence in the case:
    On the 19th of February, 1846, the appellees exhibited their bill in Chancery against the appellant, his wife Betsey, Joseph H. Berry, as administrator of James Lawrence, deceased and others, alleging, among other things, that the said deceased died intestate in the State of Missouri, and that said appellees, as his brother and sister, were “ his only lieird at ' law, and as such, are entitled to all of ‘ his ’ estate, both land and personal property. ” That the said Berry, as administrator, had obtained certain notes and a mortgage, and foreclosed the same and bought in the mortgaged premises, and he, appellant, and his wife had contracted to convey the mortgaged premises to Burkenmayer & Co.; and that.the contract had not been consummated, and that said appellees were entitled to the mortgaged premises as heirs at law as aforesaid. There was this charge in the bill: “Your complainants further aver that the said Fryrear, and the said Betsey Silvers has received from said Berry, and from other sources, large sums of money belonging to the said estate* knowing that they were not entitled to the same. ” The bill also alleged, that appellant’s wife had lived in a state of concubinage with said deceased, and never was his lawful wife, and that she and the appellant fraudulently combined to appropriate the estate of said deceased to their own use. There were five special'interrogatories propounded in the hill to the appellant, and the first was in these words: “What amount of money and property he received .by and of this Betsey Silvers, alias Betsey Fryrear, and whether he did not know that it was out of the estate of Lawrence ? ”
    The defendants, on oath, filed joint and several answers to to the bill on the 16th of May, 1846. The appellant and his wife answered that they were married according to law in Missouri, on the 26th of August, 1837 ; that the appellant, in the county of Morgan, and State of Missouri, on the 3d of November, 1838, was appointed administrator of said deceased, who was domiciled in that county at the time of his death ; that the appellant had entered into- bond with security in the penalty of $3,200, conditioned for his faithful administration of said estate; that he had not finally settled his administration ; that he would do so at the earliest practicable day, and bring the result into Court duly certified j that he was persuaded that on the final settlement of the estate, there would be due him, as administrator, about the sum of one hundred dollars, which he asserted as a claim of higher dignity against the estate of said deceased than that asserted by the complainants. He made proferí of a copy of Ms letters of administration as a part of his answer, and further stated that after his administration, he placed in the hands of the defendant, Berry, for collection, the-Me Caleb notes and mortgage, and caused the said Berry to take out administration in the county of Scott, State of Illinois, as ancillary to the aforesaid administration of the appellant, that he, for himself and wife, on the 10th of March, 1845, entered into contract with, &c., for conveyance of bonds, &c. The defendant, Berry, stated that he, as administrator, had not paid one cent to the appellant and his wife. The following is an extract from said answer: “ Complainants claim that they are the only heirs at law of said James Lawrence, as his brother and sister. From conflicting accounts given by complainant, Garret L. and the said James Lawrence of their ancestry and relations, respondents, John and Betsey, unequivocally denying that the complainants are the heirs at law of the said James Lawrence, and of their being so said respondents require full and satisfactory proof. ”
    The complainants took no exception to the answer, and filed a replication thereto on the 22d of May, 1846.
    On the 4th of June, 1846, the respondents filed an account current of the defendant, Berry, as administrator, charging himself with the notes that came to his hands as such, $1918-90, &c., and showing that there was a balance of $12-51 due him. To this account, the complainants filed exceptions, and exhibited accounts at the September term, 1846, not by leave of the Court, or by way of amendment of hill against the defendant, Berry, for a balance of $551-72, and against the appellant for $1962-80, charging, for the first time, after John McCaleb’s deposition had been taken in August, 1846, certain items as proven by his deposition.
    The appellant, on the 17th of November, 1846, filed his cross bill against the complainants and others, exhibiting his final settlement as administrator of the estate of said Lawrence with the county court of Morgan county, in the State of Missouri, made on notice, and showing a balance to be due him as such administrator on the 3d of November, 1846, amounting to $249-62, and claiming to be re-imbursed out of what was claimed by the complainants as h-eirs at law of said deceased, if they made their claim good and alleging that appellant’s claim to that extent was preferable to, &c., and waiving answer to the cross bill on oath.
    The complainants objected to the filing of the cross bill, which objection being overruled, they were ruled to answer the same. An answer and replication thereto was filed on the 18th of November, 1846.
    On the 26th of August, 1846, the depositions of Wm. B. Hatfield, Isaac Killam, and John McCaleb, and on the 22nd of August, 1846, the deposition of Enoch P. Sloane was taken by the complainants. The said deposition, it was contended, proved-nothing as to the issues involving the true state of accounts between the parties, and as to the heritable rights alleged by complainants. In order to make out their exclusive claim as heirs, the complainants took the deposition of their mother, Hessey Lawrence, on the 26th of May, 1847, by whom only do they prove said claim, which is denied by the answer, and in it full proof is demanded.
    On this state of pleadings and proofs, the Circuit Court decreed—
    1. In favor of, and establishing the heritable rights of the appellees on the testimony of only one witness without corroborating circumstances, as the appellant contended, the answer on oath having denied said heritable rights.
    2. Disallowing and rejecting appellant’s demand set forth in his cross bill, and decreeing that he should pay the appellees the sum of $T59.
    Those, with the following, were the errors assigned and relied upon by the appellant, to wit: That the appellees’
    bill was not dismissed for want of full legal proof of their rights as heirs of, &c., as alleged in said bill.

      D. Ji. Smith, for the appellant.
    For the rule of evidence establishing heirship, see 2 Greenl. Ev. § 354.
    As authorities sustaining the first and third assignments of error, see 2 Story’s Eq. Jur. § 1528 ; 1 Greenl. Ev. §§ 260, 351; Martin v. Dryden, 1 Gilm. 187.
    To sustain the second assignment of error, see Caldwell v. Lockridge, 9 ’Missouri, 363; 2 Greenl. Ev. § 365; 1 do. §41.

      M. McConnell, for the appellees.
   The Opinion of the Court was delivered by

Caton, J.

Fryrear alone has taken an appeal, and he presents two questions for our consideration, which will be noticed. The complainants allege, that they are the only heirs at law of James Lawrence, deceased. This the present plaintiff attempts to deny in very positive terms, in his answer, which he supposes is sufficient to put the complainants upon the proof of that fact by two witnesses. This denial is in these words: “From conflicting accounts given by the complainant Garrett L. and the said James Lawrence of their ancestry and relations, respondents John and Betsey unqualifiedly deny that the complainants are the heirs at law of the said James Lawrence.” Although this denial professes to be unqualified in terms, yet it contains within itself the admission that the defendants had no knowledge of the fact about which they have the effrontery to swear so positively. This positive denial, so far from requiring two witnesses to overcome it, only serves to show how reckless Fryreár was of his oath, in swearing to a statement absolutely, which he admits he personally knows nothing about; relying upon such inferences as he drew from the hearsay of others; and it should admonish us to look with suspicion upon whatever else he may choose to- swear to. While a defendant’s answer, which is required to be sworn to, is made evidence in the cause by the complainant, it is only entitled to weight when it is entitled to belief; and if he chooses to swear to that which the Court sees he cannot, or which he admits he does not know, he is entitled to no more credit, and is subject to the same censure and condemnation, as any other reckless witness, who, the Court sees, is trying to impose upon it his belief, when he should only speak of his knowledge. The Court is not a mere machine to weigh everything that is offered without examining its value, any more when the defendant’s oath is put into the scale, than when examining the testimony of any other witness. It is only when the defendant states facts within his knowledge, that his answer has to be overcome by evidence equivalent to the testimony of two witnesses. This denial amounts to no more than the belief of the defendant, founded upon contradictory statements made by one of the complainants, and James Lawrence, and what those statements were, or whether he only used them by hearsay, he does not inform us. The defendant below has not inspired us with sufficient confidence to induce us to allow this opinion of his to neutralize the testimony of one witness.

The evidence is abundant throughout the record, showing that James Lawrence was the son of Jehonidab Lawrence, of Maryland, and that the complainants are half-brother and sister of James. By the testimony of Hessey Lawrence, who was the second wife of Jehonidab Lawrence, and the mother of the complainants, we are informed that her late husband had by his former wife five children living at the time of his marriage with the witness. Of these, James was the second. The only daughter died in New Jersey without issue. The eldest son left for the western country twelve or fourteen years ago, in bad health, and had not been heard of since. The two youngest left for New Orleans more than twenty years since, and had not been heard of, and the family had for many years believed all three to be dead. After so long an absence, without being heard from, the law will presume them dead. The witness does not state whether either of those three had been married, but she was requested in the interrogatory in the commission to state all she knew of the family of Jehonidab Lawrence, and she is quite minute in the account she gives, and she concludes her answer with this statement: “This makes up the whole history of the family of Jehonidab Lawrence as this deponent has understood it, for the past thirty years, and as she now believes.” She had previously stated that the complainants were her only children by Jehonidab Lawrence, and that he had been dead for many years. We think this evidence sufficiently shows that the complainants are the only surviving heirs of James Lawrence, except as to his own wife and children, who are shown to be dead by another witness.

The right of the complainants to call the defendants to an account, it becomes necessary to inquire whether the evidence justifies the decree against Fryrear. In the Court below, the certified copy of the record of the Morgan County Court from Missouri, exhibited by the cross bill of Fryrear, was evidently rejected as incompetent evidence. This record shows a settlement and final determination of the administration of John Fryrear, administrator of the estate of James Lawrence, deceased, in which the Court"found and adjudged a balance in favor of the administrator and against the estate of $249-62. This record is properly certified under the Act of Congress, and as such must be considered as conclusive as to all matters within the jurisdiction, unless impeached for fraud. We have not the means, even if we had the power, of investigating the propriety of that adjudidication, and it was not the duty of the complainant in the cross bill to come here prepared to show that the decision was right. This adjudication must be considered as settling the rights of the parties so far as Fryrear acted as administrator in Missouri, but it cannot affect his liabilities for the estate which came to his hands in this State. McCaleb swears that he paid him $202 in this State', of money due the estate of Lawrence, and that he also paid $154 to Hatfield, by the direction of Fryrear, for the support of the wife and children of the intestate, after he had deserted them in Ohio, and run off with Mrs. Silvers. We are satisfied from the testimony of Hatfield, that this was a just claim against the estate, and that Fryrear ought not to be charged with it. The balance is then easily struck. He is to be allowed against the estate, the balance found in his favor by the Morgan County Court, $249-62, with interest from the third day of November, 1846, amounting to $282-67, which is to be deducted from $.202, with interest from the third day of November, 1841, amounting to $289-36, leaving a balance in favor of the complainants of $6-69, instead of $159 as was found by the Court below, and the decree must be modified accordingly. Fryrear is entitled to his costs in this Court.

Decree modified.


author: Trumbull, J.

text:
    William Frye, impleaded, &c., plaintiff in error, v. The President, Directors & Co. of the Bank of Illinois et al., defendants in error.

      Error to Calhoun.

      • Where a bill in Chancery was filed by certain companies or corporations, it was held that no other allegation that they were incorporated was necessary.
    A defendant in a bill in Chancery brought by certain companies as corporations, suffered the bill to be taken as confessed : Held, that he thereby admitted that they were incorporated and had the capacity to sue.
    When a chartered company seeks to enforce, in Equity, rights which do not ordinarily and necessarily belong to such corporations, it is necessary that they set forth and prove their authority to do the particular thing.
    A defendant in C.iancery,by failing to answer,only admits whatis alleged in the bill, and the complainants would have been permitted to prove, had an answer been filed.
    The rule as to parties to suits is wholly different in Chancery from what it is at Law. In Equity, a party in interest may always institute a suit in his own name, while at Law, he alone can sue in whom is vested the legal title.
    It is erroneous to enter a decree in Chancery, that unless the defendant pay an uncertain and undefined amount of money by a specified time, he be foreclosed, &c., particularly where the debtor in fact has not been brought into Court and the precise indebtedness ascertained.
    Bill in Chancery, in the Calhoun Circuit Court, brought by the Bank of Illinois, for the use of David A. Smith and Samuel Dunlap, its assignees, with George W. Atchison, the Union Insurance Company and the Missouri Insurance Company of St. Louis, who sued for the use of the said Atchison and said Missouri Insurance Company, against John Shaw and William Frye, for the purpose of setting aside certain conveyances alleged to be fraudulent, &c.
    At the September term, 1846, the bill was taken y>ro confess o as to Frye and an interlocutory decree entered that he be barred, &c. unless he pay the complainants by the first day of the next term. Subsequently Shaw filed an answer.
    At the May term, 1847, Frye filed affidavits and entered a motion to set aside the interlocutory decree, and asked leave to file an answer then prepared. A counter affidavit was filed, and the Court refused to allow the motion.- Decrees were then entered setting aside certain conveyances, and ordering a sale of mortgaged lands, &c.
    • Frye excepted to the decisions of the Court, and, alone brings the cause into this Court by writ of error.

      E. Keating and H. W. Billings, for the plaintiff in error.
    1. A party seeking the aid of a Court of Equity must show distinctly and unambiguously all the facts necessary to entitle him to that aid. Shepard v. Shepard, 6 Conn. 37; Wright v. Dame, 22 Pick. 59; Hobart v. Frisbie, 5 Conn. 592; Steele’s heirs v. Mc Dowell, 2 Bibb, 124; Morrison’s Exec’rs v. Hart, ib. 6; Lemaster v. Buckhart, ib. 26.
    2. To enable a foreign corporation to maintain a bill of complaint, its corporate existence should be averred, and also its power to sue. Central Manufacturing Co. v. Hartshorne, 3 Conn. 199; Lewis v. Bank of Ky., 12 Ohio, 148-9-50; Society Prop’n Gospel v. Young, 2 N. H. 312; School Dist. v. Blaisdell, 6 do. 198; Bank of Michigan v. Williams, 5 Wend. 482.
    3. A corporation has no powers except such as are specially granted, and those that are necessary to carry into effect the powers so granted. Angell & Ames on Corporations, 65, 66, 122, 192, 198; N. Y. Fireman Ins. Co. v. Sturges, 2 Cowen, 675, 676; Same v. Ely, ib. 699; Salem Mill Dam Corporation v. Ropes, 6 Pick. 32; 3 Barnwell 6 Alderson, 216; McIntyre v. Preston, decided at this term; Phillips on Ins. 205, 206;
    ■ 4. A final decree in Equity, or an interlocutory decree deciding the merits, cannot be pronounced until the parties to the bill and in interest are before the Court. Marshall v. Beverly, 4 Peters’ Cond. R. 660; Conn. v. Penn. ib. 718; Dodge v. Griswold, 8 N. H. 427; Seagrave v. Edwards, 3 Vesey, 372; Gibson v. Wright, 3 Munf. 94; Shields v. Craig, 1 Monroe, 72.
    5. An interlocutory decree for the payment of a sum of money should be for a sum certain. Wernwag v. Brown, 3 Blackf. 458; Downing v. Palmater, 1 Monroe, 66; 2 Barb. & Har. Eq. Dig. 289, § 4.

      6. A decree pro confesso is like a default at law. Murphy v. American Life Ins. Co. 25 Wend. 250; Dunn v. Keegin, 3 Scam. 297; Clason v. Morris, 10 Johns. 538; Millspaugh v. McBride, 7 Paige, 509.
    7. At the time of the rendition of the decree in this case, the charter of the Bank of Illinois was repealed ; the Bank went out of existence, March 5th, 1847 Laws of Ills. 1842-3, page 33, §7. The decree was not rendered until May, 1847. The counsel of plaintiff in error insist that a decree could not be rendered in favor of a corporation not in existence, and the objection can be taken in this Court, as the law repealing the charter sf the Bank was a public law.

      D. A. Smith, for the defendants in error.
   The Opinion of the Court was delivered by

Trumbull, J.

The defendants in error, who were complainants in the Court below, filed their bill against the plaintiffs in error and John Shaw for the purpose of setting aside as fraudulent, various conveyances by which Frye claimed certain real estate which Shaw had mortgaged to the complainants, and to subject the same to the payment of the amounts due complainants upon their said mortgages, alleging the insolvency of Shaw, &c.

The bill was taken pro confesso, against Frye at the return term of the process, and a decree entered, “that unless he pay the amounts due the complainants respectively on their mortgages and notes set forth in their bill, on or before the first day of the next term of this Court, that he be foreclosed of and from all equity of redemption of, and to said mortgaged premises.”

Shaw, at the time of the entry of this decree, had not'been brought into Court, but shortly after and before the next term he filed his answer admitting, substantially, the allegations of the bill. Frye appeared at the next term and made application to file his answer, accompanied with affidavits in support of his motion to set aside the decree pro confesso of the previous term, but the Court denied the motion and entered a final decree setting forth that Frye had failed to comply with the interlocutory decree passed against him, setting aside the various conveyances to Frye, and directing the mortgaged premises to be sold to satisfy the complainants respectively, in case the defendant Shaw did not discharge said indebtedness within five days from the entry of the decree.

Frye alone brings the cause to this Court, and has assigned numerous errors for the reversal of the decree.

The first which we deem it essential to notice is, that there is no allegation in the bill that the insurance companies suing as complainants were incorporated, or that they had any authority to maintain suits, or to take the notes and mortgage which constitute the foundation of their claims.

The Union and Missouri Insurance companies having sued ' as corporations, no other allegation that they were incorporated was necessary, (4 Blackf. 267,) and the plaintiff in error having suffered the bill to be taken as confessed against him, has thereby admitted that the said companies were incorporated, and also their capacity to sue. But although the right of a corporation to maintain suits and to exercise such other powers as are necessary and essential to its existence, and to carry out the objects of its creation will be presumed, unless denied or put in issue, yet when chartered companies seek to enforce in Equity, rights which do not ordinarily and necessarily belong to such corporations, it becomes necessary that they set forth and prove their authority to do the particular thing. McIntire v. Preston, (ante 48.)

The bill alleges that John Shaw “executed to the Union Insurance Company his note for $1500, to the Missouri Insurance Company his note for $1500, the notes to said insurance companies being given for money borrowed of them by said Shaw,” which were secured by mortgages', &c., but it contains no allegation of the power of said insurance companies under their charter to loan money upon mortgage security or otherwise, nor can we intend that the power to loan money is .necessary to the existence and transaction of ordinary business of insurance companies. The Court cannot, therefore, presume that the Union and Missouri Insurance Companies of St. Louis had such power, unless it is shown to exist by their Acts of incorporation, or necessarily or incidentally to arise from the exercise of some of the powers granted.

The fact that the bill was taken for confessed cannot help the case, because the defendant, by failing to answer, admits only such allegations as are contained in the bill, and the complainants would have been permitted to prove, had an answer been filed ; and as the complainants would not have been allowed to prove any substantive facts not alleged in the bill in case an answer had been put in, they cannot insist that any such are admitted for want of an answer. 2 Bibb, 123.

So far as one of the complainants, the Bank of Illinois, is concerned, we might well assume that'it had the power to loan money, even if not bound to take notice of its charter as a public Act, because such a power is essential to the transaction of the. ordinary business of banks; but no such intendment can be made in favor of insurance companies. That such companies have the power to make insurances, to give credit for premiums and therefore to take notes, might be .intended as essential to the advantageous management of their business, (2 Cowen, 699;) but the allegations in this bill expressly negative the idea that the notes and mortgage in this case were taken in the transaction of the usual business of. insurance companies. The bill is, therefore, defective for want of the proper allegations to show that the Union and Missouri Insurance companies were authorized by their charters to make the loans to Shaw.

Another objection has also been taken to the bill, which is, that M’Donald, before whom some of the deeds alleged to’ be fraudulent were acknowledged, should have been made a party. We cannot see the propriety of making him a. party to the suit. He has no interest in it, and to have made him a party for the purpose of requiring him to answer, where if the allegations of the bill be true, such answer must tend to his own infamy, would not be allowable. It is also objected that the charter of the Bank of Illinois having expired during the pendency of the suit, no decree could be rendered in its favor. There was no necessity for making the Bank a party to the suit. It purports to sue for the use of Smith and Dunlap, the assignees, and as Equity always looks to the real party in interest, and allows such party to institute suits in his own name, notwithstanding the legal title may be in another, it would have been more in accordance with Chancery proceedings if the suit bad originally been instituted in the name of the persons for whose use it purports to have been brought.

The rule as to parties is wholly different in Chancery from what it is at Law. In Equity, a party in interest may always institute a suit in his own name, while at Law he alone can sue in whom is vested the legal title. As the hill will have to be amended, and the charter of the Bank has expired, it would be advisable to insert the names of the persons for whose use the Bank sues, as one of the parties complainants, instead of attempting to maintain a suit for their benefit in the name of the Bank. It may also be proper to remark, that as one object of the bill is to set aside a deed from Frye to Smith, the latter should also be made a party to the suit.

So far as the bill has been objected to on the ground of multifariousness, we do not consider the objection tenable. Although the bill relates to various transactions, yet they are all in reference to the same subject matter, and so intimately connected that they may well be determined in one suit.

The plaintiff in error also insists that it was erroneous to enter a decree pro confesso against him, determining the merits of the case so far as he was concerned, before Shaw, the debtor, was before the Court. It may well be asked, how could Frye know what amount to pay complainants respectively before Shaw had been brought into Court, and the amount ascertained, or what right had the complainants to a decree against Frye foreclosing his right to redeem, before they had established their claims against Shaw ? Except Shaw owed them, they could not attack Frye’s title, and there is an inconsistency in foreclosing Frye’s right to redeem before complainants had established any right to foreclose. The bill does not state with certainty the amounts due the respective complainants. Nor are they ascertained by the decree against Frye, and yet he is barred of all equity of redemption in the mortgaged premises, unless he pays those unknown and unascertained amounts by the first day of the next term, up to which time no decree had been entered against Shaw. This was clearly erroneous. The bill might have been taken as confessed as against Frye at the first term, but there it should have been left till Shaw, was brought into Court, and the amount due from him ascertained, when a final decree might have been entered, barring the equity of redemption of both the defendants, unless the money was paid by a certain day. It ■ is that part of the interlocutory decree, confirmed as- it subsequently was by a final decree, which foreclosed Frye’s right of redemption, unless he paid an uncertain amount, before any proceedings were had against Shaw, that is objectionable-. 3 Blackf. 46-7.

As- the decree of the Circuit Court will have to be reversed and the bill amended, when Frye will have no opportunity to file his- answer, it is unnecessary to determine whether Frye’s application to set aside the decree pro confes.so should have been allowed or not.

The decree of the Circuit Court is reversed with costs, and the cause remanded with leave to the complainants to-amend their bill..

Decree reversed.


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    John Frink et al., appellants, v. Almiran S. Cole, appellee.

      Appeal from, Peoria.

    A Court of Equity, in order to ascertain and carry out the intention of parties to a particular transaction, will look at their situation and the whole transaction between them,

      A decree against several owners of a steamboat jointly, whose interests were different in extent, was -held, to be erroneous as they were severally liable, if at all, according to the extent of their separate interests.
    Bill in Chancery, in the Peoria Circuit Court, filed by the appellee against the appellants, the material portions of which are stated in the Opinion of this Court. After various proceedings in the Circuit Court, a joint decree was rendered at the October term, 1845, in favor of the complainant below, and against all of the defendants in the suit, for the sum of $2356-38. ^
    The cause was argued in this Court by S. T. Logan and E. JY. Powell, for the appellants, and by T. Ford and H. 0. Merriman, for the appellee.
   The Opinion of the Court was delivered by

Trumbull, J.

Cole, a former owner of one fourth of the steam boat Frontier, after having parted with his interest therein, filed his bill against the appellants and others, the owners of said boat, for the purpose of recovering for his services as captain, and also for advances by him made over and above his proportion while interested in said boat.

The bill states that at the time complainant became interested in the boat, she was lying at St. Louis, undergoing repairs, and the bill of sale to Cole, which purports to be in consideration bf $1125, contains this stipulation: “Thatif, in the payment of the charges and expenses in putting said boat in repair, said Cole pays more than his share and proportion of said expenses, he shall be allowed the sum of twelve per cent, interest per annum thereon.” On the same day that Cole purchased an interest in the boat, (Dec. 24th, 1839,) the other owners executed to him an instrument of writing which is also signed by Cole, whereby he is appointed captain of the boat, required to repair to St. Louis, superintend the repairs and take the management thereof, keep an account of receipts and expenditures, &c., for which services as captain, he was to receive the sum of one hundred dollars per month, to be paid in equal proportion by the owners of the boat.

The bill further alleges that Cole, in pursuance of the conditions in said bill of sale and appointment as captain, took charge of said boat, and performed the duties of captain for the space of four months and ten days, and thereby became entitled to the sum of $433-33 for his services, three fourths of which was chargeable to the defendants to said bill; that he paid out of his own private funds for repairs, the sum of $1673 before the creditors of the boat would suffer her to leave St. Louis, and afterwards, and while he acted as captain, out of the earnings of said boat he paid for repairs about $4500; that the earnings of said boat amounted to about $5000, and the expenses to about $2000 during the same time, part of which were unpaid, and that all the earnings of the boat were paid out for the repairs and expenses thereof; that some time in June, 1840, the complainant sold to Martin O. Walker, one of the defendants, his interest in said boat, and executed to him a deed or bill of sale of the same for about $500; that at the time of complainant’s purchase of an interest in said boat, he executed to the other owners thereof his note for $1125, with $125 indorsed thereon, and that at the time of the sale to Walker, said note was delivered up to complainant to be canceled, so that he never received but $500 for his advance of $1673 for repairs upon said boat, and also for his services as captain.

The bill waives the necessity of answers under oath, calls upon defendants to produce the account books of the boat to be used as evidence in the cause, and prays that defendants be compelled to pay complainant such sum as may be found to be due, and for general relief. The bill contains many other allegations, but as no questions arise upon the other branches of the case, it is unnecessary to notice them.

The defendants, Frink & Walker, in their answers, admit the sale to Cole, and his appointment as captain, but deny that he paid out of his private funds for repairs $1673, or that he has not been paid all sums due him for acting as captain, and allege that whatever he paid out of his private funds has been re-paid by the boat and her owners; admit the sale by complainant to Walker, but allege the consideration thereof to have been not only $500, but also the complainant’s note for $1125, with a credit of $125 indorsed thereon; make the bill of sale from Cole to Walker an exhibit? and assert that by said bill of sale, it was understood and agreed by the complainant that all his claims on said boat'or her owners were transferred to said Walker,

Upon a hearing of the case upon bill, answers and depositions, the Court decreed that the defendants, Frink, Walker, Fowler and Bingham, were the owners of one half of the boat, Garret of one fourth, and the complainant of the other fourth, from the time complainant purchased till his sale to Walker, and directed it to be referred to a Special Commismissioner or Master to take and state an account between the parties.

The only evidence before the Master in reference to the state of the accounts between the parties, was the account books of the boat, which showed upon their face that the account of A. S. Cole was balanced, but the last item upon the debtor side of the account, as well as several other items both upon the debtor and credit side, were proved to be in the handwriting of Walker. The last item upon the debtor side was as follows : “June 2, 1840. Bal. advances by A. S. Cole, assigned to M. O. Walker, $1775-35.” The Master in stating the account between the parties, rejected this last item, though he admitted all the other items in Walker’s handwriting immediately preceding, amounting upon the debtop side to $397-43, and upon the credit side to $502-19. The Master, in his report, stated that he had not taken into consideration the last item, said to be in Walker’s handwriting, “not supposing the fact of the assignment of said balance of account due Cole to said Walker to have been referred to him to ascertain.” The defendants appeared before the Master and excepted to his report, because he omitted the item of $1775-35, in stating the account between the parties, but the exception was disallowed by the Master, and his report subsequently approved by the Court, and a decree entered requiring defendants jointly to pay complainant the sum of $2356-38, being three fourths the amount advanced by Cole, and interest at twelve per cent., and also, three fourths the amount due from the boat for his services as captain.

The decree is manifestly erroneous in being entered against the defendants jointly. The defendants being joint owners, were severally liable, if at all, to the extent of their interests, and no further; and a joint decree against all, when their interests were different, was clearly wrong; but the decree could, and would be modified in this respect, if it were otherwise correct.

The main questions arising in the case are, whether the deed of sale from Cole to Walker carried with it all the claims of Cole against the boat and its owners, and whether the Court did right in rejecting the entry upon the books of the boat which showed an assignment on the same day the deed of sale bears date, of Cole’s advances on account of said boat to Walker.

In determining the first of these questions, it becomes important to look at the situation of the parties, and the whole transaction between them, in order to ascertain their intention, which it is always the duty of a Court of Equity, if possible, to ascertain and carryout.

The deed of sale from Cole to Walker is to be read, by the light of surrounding circumstances, in order more perfectly to understand the intent and meaning of the parties. 1 Greenl. Ev. § 277; 1 Barb. Sup. Court R. 635. What are those circumstances ? According to the allegations of the bill, the repairs and expenses of the boat, during the short time Cole was interested in her, exceeded the receipts by about $3173. Is it reasonable to suppose that Walker, one of the joint owners, and with a full knowledge of the business and condition of the boat, would have agreed to pay Cole a profit of $500 for his one-fourth interest in her, when, during the short space of four months and ten days, the loss upon that interest had been near $800. There is no evidence to show that Cole sold his interest for $500; on the contrary he acknowledges the receipt of $1500 in his deed of sale to Walker, and he gives no satisfactory reason for the surrender of the thousand dollar note in his bill of complaint. So far as can be gathered from the bill, complainant got up his note without any consideration whatever. It simply alleges that at the time of the sale to Walker, the note was surrendered up to be canceled, but why, or in consideration of what, is not shown. We take it, therefore, for granted, and such is the proof made by the bill of sale itself, that Walker gave Cole $1500 for something, and if it was only for Cole’s interest in the boat, it was $500 more than it cost him, and if Cole still retained all his claims against the boat, Walker was assuming not only to pay $1500 for Cole’s interest, but- he was becoming liable also for Cole’s proportion of the debts owing by the boat at that time, exclusive of what was coming to Cole himself; for it will be observed, that the bill shows the boat to have been in debt independent of what was coming to Cole, some $1500; one-fourth of which was of course properly chargeable to Cole’s interest, yet he makes no offer to pay his proportion of this loss. While he seeks to collect from the other owners their full proportion of the amount of the.claims due to himself, he makes no offer to share with them in paying the other debts which the boat at the time owed, and the inference is irresistible, as he makes no complaint of those debts, that he has never been troubled about them, and that they have been discharged by the other owners of the boat, neither Walker or Cole supposing that the latter was liable to any debts after the sale to Walker. If the decree be permitted to stand, Cole has not only sold his interest in an old. f-team boat at an advance of $500, but he has also saved $375, his proportion of the debts due from the boat to persons other than himself.

Would a business man like Walker is shown to have been be likely to make such a contract ? If so, there must be some magic about deriving profits from an old worn out steam boat,'that we cannot appreciate, and particularly when such boat had just previously been running her owners largely in debt. It is true that Cole suffers a loss by assigning his whole interest in the boat and claims upon her for $1500, but the loss is very little more than his proportion of the losses of the boat at that time. He complains in his bill of the unsoundness of the boat, and was evidently anxious to dispose of his interest in her, as is manifest from the fact that he agreed to act as captain after the sale for one-half what was allowed him while interested in the boat. The whole transaction shows that Cole was dissatisfied, and it is not unreasonable to suppose that he was willing to pay something more than his proportion of the losses at that time for the sake of getting out of a losing concern, while it would be very unreasonable to suppose that Walker, who had already lost largely upon his own interest, would give Cole an advance of $500 for his interest, for the sake of sharing more largely in future losses.

We come now to consider of the deed of transfer from Cole to Walker, for unless, by a fair construction of the instrument itself in connection with surrounding circumstances, we can see that Cole intended to transfer to Walker his claim for services and advances, he is still entitled to claim them.

By the terms of the deed, bearing date June 2, 1840, Cole, in consideration of $1500, did “grant, bargain, sell and convey unto the said Walker, all his right, title, claim, interest and demand of whatever nature or kind, in and to the steam boat Frontier, the same being one-fourth part thereof,” * * “together with the furniture, rigging and stores, and also the books of said boat, debts due, claims, dioses in action, with authority to use the name of said Cole in the collection of the same if necessary,” and the said Cole agreed to “warrant and defend the claim or interest of said boat to be free from the claim of himself, and that he (would) will not do any act or thing whereby said interest (might) may be prejudiced or hindered of or from said Walker.” The only evidence before the Master to show an indebtedness from the defendants to Cole, was the account book of the boat, upon which book the account of Cole was balanced, and it was only by rejecting the last entry upon that account, purporting to have been made on the same day the deed of sale bears date, that the Master found a balance in Cole’s favor. By the very terms of the deed to Walker, Cole had expressly sold and conveyed to him the becks of the boat, which contained Cole’s account against the boat, and the only evidence which he had of its existence. It cannot be questioned that this sale of the books carried with it Cole’s interest in all debts due upon those books, jointly to himself and the other owners of the boat, and why should it not embrace a claim coming to him individually, as well as those in which he had but an individual interest? The language is unqualified, and may without any violence be construed to include his individual as well as his interest in the joint accounts.

Before the sale to Walker, Cole had a lien upon the boat for his advances; this he undoubtedly abandoned when he covenanted that the interest he sold to Walker was free from the claims of himself, and that he would do no act whereby said interest might be prejudiced, but then it is insisted that the claim itself still exists in the hands of Cole against the other owners of the boat individually for their respective proportions thereof. We think not, but that it was the intention of the parties to the deed of sale, as manifested by all the circumstances surrounding the transaction, taken in connection with the terms of the deed itself, to transfer to Walker not only Cole’s interest in the boat, but also all his claims upon her whatever, for advances or otherwise. We are further fortified in this opinion by the fact that the account of Cole upon the books purports to have been assigned to Walker, contemporaneously with the execution of the deed of sale. Cole called for the books, and made them evidence, and no circumstance is shown to discredit this item of the account more than any other that was in Walker’s handwriting, and yet all the other entries made by Walker were admitted in stating the account between the parties, while this alone was rejected. The reason and propriety of this distinction we cannot perceive- The books of the boat were as much evidence for the defendants as against them. The complainant called for and introduced the books in evdence, and he was bound to admit those items which made against as well as those which operated in his favor, unless he could show that the items to his prejudice had been improperly inserted. This he did not do, and, unexplained by evidence, the reasonable presumption is, that the parties had the books before them at the time of the transfer to Walker; that the last entry upon Cole’s account was made contemporaneously with the execution of the deed of sale, and, therefore, should have been taken into consideration in stating the account between the parties.

The decree of the Circuit Court is reversed, and the bill dismissed at the costs of the appellee.

Decree reversed.


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    Newton D. Strong et al., appellants, v. Lewis J. Clawson, appellee.

      Appeal from Madison.

    A Court of Equity has jurisdiction in the adjustment of unsettled accounts between partners.
    Bankrupts, who by their discharge have been divested of all liability, or inter- , est in the subject matter of a suit, are competent witnesses in such suit.
    It is a well settled principle, that by a decree of bankruptcy, the assignee succeeds immediately to all the rights and interest of the bankrupt to precisely the same extent that the bankrupt himself had, subject to and affected by, all the equities, liens and incumbrances existing against them in the hands of the bankrupt. The same rule applies to the purchaser at an assignee’s sale of the bankrupt’s effects.
    Bill in Chancery, &c. in the Madison Circuit Court, filed by the appellants against the appellee.

      'The bill averred that John Sigerson and Enos H. Harrison, of the firm of Sigerson & Harrison and the appellee became partners for the purchase and shipment of corn, oats and flour, and accordingly made purchases and shipments of those articles to Wallace Sigerson, of New Orleans; that the consignee remitted the net proceeds of the sales; that the appellee was interested in one third, and Sigerson & Harrison in two thirds, in the profit and loss of the shipments; that there was a loss on the corn and oats of $507-06, and on the whole shipment, of $570-75, which was paid by Sigerson & Harrison solely; that the appellee was duly notified of such loss and requested to pay his proportion, which he refused to do, and the claim was placed in the hands of the appellants for collection; that Sigerson & Harrison, being at that time indebted to the appellants for legal services in the sum of $120, assigned their claim against the appellee to secure their indebtedness and expenses of collection, the balance to be paid over to them; that Sigerson & Harrison subsequently became bankrupts, and that their residuary interest in said claim coming to the hands of the assignee in bankruptcy, he offered the same at public sale subject to the appellants’ claim, and the appellee, who had previous notice of such claim, became the purchaser at six and one fourth cents. The claim against the appellee was $190-25.
    Appellants prayed that Clawson be decreed to pay them the aforesaid sum of $120, and a reasonable amount for expenses of collecting said claim, See.

    The depositions of Sigerson Se Harrison, among others, were read in evidence on the hearing at the August term, 1847, the Hon. Gustavus P. Koerner presiding, when the bill was dismissed.
    The allegations of the bill were substantially proved, and the leading facts are briefly adverted to in the Opinion of this Court.

      H. W. Billings 8’ L. Parsons, Jr. for the appellants.
    1. An assignee in bankruptcy succeeds to all the effects of the bankrupt and takes subject to all liens and incumbrances existing against them in the hands of the bankrupt. Talcott v. Dudley, 4 Scam. 435, and cases there cited.
    2. The purchaser at a bankrupt sale of a chose in action, takes subject to all equities it was subject to in the hands of the bankrupt, and the doctrine of caveat emptor applies in full force. Murray v. Lylburn, 2 Johns. Ch. R. 443-4; Milford v. Mitford, 6 Vesey, 100; 1 Atkins, 162; Clason v. Morris, 10 Johns. 439; England v. Clark, 4 Scam. 489; ex parte Herbert, 13 Vesey, 187; Webster v. Wise, 1 Paige, 320; Hawley v. Cranmer, 4 Cowen, 718.
    3. This suit was properly brought in Chancery. The remedy of one partner against another, when no balance has been struck, is in Equity and not in Law. Kennedy v. M’Fadon, 3 Har. & Johns. 197; Harly v. Cram, A Cowen, 719; Southgate v. Montague, 1 Paige, 41. Partnership transactions form a special branch of Chancery jurisdiction. 1 Story’s Eq. § 663, &c.; McLanahan v. Elery, 3 Mason, 269; and 2 Barb. Dig. 356-7; Duncan v. Lyon, 3 Johns. Ch. R. 360.
    4. It is too late to object to the testimony of Sigerson and Harrison at the hearing. Town v. Needham, 3 Paige, 551-2; Neville v. Demint, 1 Green’s. Ch. R. 44; 4 Barb. & Harr. Dig. 736," § 7, &c.

      W. Martin, for the appellee.
   The Opinion of the Court was delivered by

Caton, J.

Although the want of jurisdiction was earnestly pressed by counsel, yet it seems to us that of all others, this bill states a case peculiarly within the jurisdiction of a Court of Equity. The complainants are the assignees of an account as collateral security for a pre-existing debt, of two members of a special partnership, against a third for the defendant’s proportion of losses, sustained in the adventure, and paid by the other two, and the assignors have become bankrupt since the assignment, and their residuary interest in the account, amounting to $7025, sold by the assignee in bankruptcy, and bid in by the defendant himself. As one of the objects of the bill is to adjust an unsettled account among partners, the jurisdiction of a Court of Equity is undoubted. As the complainants are seeking to enforce an equitable interest in the account, which a Court of Law would not recognize, they are driven to a Court of Chancery for redress. And then, again, the defendant became the purchaser at a sale which conveyed the legal title of a residuary interest in an account against himself. In this Court alone could the complainants enforce their rights.

Nor were' Sigerson & Harrison incompetent witnesses as was argued for the defendant. By their discharge in bankruptcy, their liability to the complainants ceased, and it was no interest to them whether anything should be recovered from the defendants or not. Admitting that they did not schedule Strong & Hall’s debt, it was still extinguished by their discharge, unless it was fraudulently omitted, which is not established by the evidence.

But it was insisted that the defendant was a bona fide purchaser of this demand at the assignee’s sale. But this is not so. Admitting that he had no notice of the complainant’s interest in the demand, still he took it subject to all the equities existing against it in the hands of the bankrupts. This question was fully settled by this Court in the case of Talcott v. Dudley, 4 Scam. 427, and it is unnecessary to review the authorities again. In that case, this Court said : “I take it to be a well settled principle of law, that by a decree of bankruptcy, the assignee succeeds immediately to all the rights and interests of the bankrupt to just the same extent that the bankrupt himself had, subject to and affectéd by all the equities, liens and incumbrances existing against them in the hands of the bankrupt,” and the same rule applies to the purchaser at the bankrupt sale, as will be found by an examination of the cases referred to and relied upon by the Court in that case.

The defendant admits that he was interested in the shipment of corn, but denies his connection with the operation in oats and flour. The allegations of the bill are, however, sustained by Sigerson & Harrison. They both state clearly and unequivocally, that Clawson was interested with them to the amount of one third in all those shipments, and that by their copartnership agreement, he was to share one third of the profits, and to sustain one third of the losses. The evidence also shows that the losses sustained amounted to $570-75, which were borne by Sigerson & Harrison, Claw-son’s proportion of which was $190-25. The evidence of all this is so clear that it is unnecessary to set it out particularly. This account Harrison swears he assigned to the complainants to pay a debt due to them from Sigerson & Harrison, the amount of which, however, he does not recollect, nor do we find it sufficiently ascertained in any other part of the record. As the complainants clearly show themselves entitled to relief, the decree of the Circuit Court" must be reversed, with costs; but as the amount to which they are entitled is not shown, the record will have to be remanded, with directions to the Circuit Court to refer it to a Master, to ascertain and report the amount of the debt due from Sigerson & Harrison to the complainants, to secure which this account was assigned, and upon the coming in and confirmation of the report, to enter a decree thereon in favor of the complainants against Clawson for the amount.

Decree reversed.