Drish

V.

JANUARY 1830. under such circumstances, to look upon them as one, in the eye of the soundest canons of morality, and as requiring nothing but the forms of law to make them husband Davenport. and wife. If under the sanction of such a promise, he permitted them to be alone frequently, who would say, that for such confidence he deserves his shame, when the man whom he had thought but little less than a ministering angel, had proved a fiend, and had filled for him the cup of bitterness, and compelled him to drink its dregs. These considerations are all met by adverse authority; and we can only regret, that a rule of evidence more consonant to reason and to the ends of morality, had not been established.

JUDGE TAYLOR concurred with JUDGE LIPSCOMB, in the views above expressed.

Judgment reversed.

M'GOWEN and WIFE V. YOUNG.

1. Though a party be injoined from removing property out of the State, by a Court of Chancery, yet he may maintain trover for its conversion. 2. In trover, if the plaintiff has not the entire interest in the property, the defendant may shew it to reduce the damages, and the plaintiff may recover to the extent of his interest.

3. The answer of a party in Chancery is proper evidence against him, and so much of the bill as is necessary to explain the answer.

THIS writ of error was prosecuted to reverse the judgment of the Circuit Court of Tuscaloosa county, rendered in an action of trover. E. Young commenced the suit in said Court on the 3d of January 1827, against Mary Ann Hill, who since the rendition of the judg ment intermarried with M'Gowen, for the conversion by her of four negroes. At March term 1828, a trial was had on the plea of the general issue, and Young obtained a verdict and judgment for $ 1425 damages.

On the trial, the defendant Mary Ann offered in evidence the record and proceedings of a Chancery cause, then still pending and undetermined in said Court, on the equity side; The proceedings consisted of a bill originally filed by Thomas Hill, her former husband, against Young, the plaintiff, and others his creditors, in 1824;

M'Gowen and

Wife

V.

Young.

a bill of revivor filed by said Mary Ann, as admi- JANUARY 1830. nistratrix, and a supplemental bill filed by her: also the answer of Young to the original bill, and several interlocutory decrees made in the cause, bonds, process, sheriff's returns, &c. The bill filed by Thomas Hill charged that Young was entitled only to a life estate in the slaves, that the father of the wife of E. Young had conveyed them to her, and in case she died without lawful issue, that then they were to go to the complainant and his heirs; that Mrs Young was likely to have no children, that Young had got in debt and had absconded, and that his creditors had levied attachments on the slaves, which were about to be sold, &c. On this bill an order was made by the Chancellor, to restrain all persons from removing the slaves out of the jurisdiction of the State, unless bond and security were given to secure the remainder belonging to Hill, according to the further order of the Court. In 1825, T. Hill died, and his widow, Mary Ann, filed a bill of revivor as administratrix. In 1826, Young returned and filed his answer to the bill. Under these circumstances, no bond having been given by Young, the negroes came to the possession of Mrs Hill, on the first January 1827. After the suit was brought, and before the trial, Mrs Hill filed a supplemental bill against Young, alleging he was still improvident, that he had endeavored to sell the slaves, that there was still no prospect of Mrs Young's having any issue; that the remainder belonged to her children whose guardian she was, and praying the further order of the Court for the security of the remainder, &c. Upon this, a further order was made by the Chancellor, requiring the sheriff to take the negroes into his possession, and if within a certain time after notice Young did not give the security required, that they should then be delivered to Mrs Hill, on her giving the security required by the order, &c. Young having failed to give the requisite security, the slaves, under this order, had been delivered by the sheriff to Mrs Hill the defendant, she having complied with the terms of the order of the Chancellor. This occurred previously to the trial at law. Young had not yet answered the supplemental Bill, had failed in giving any security, and the proceedings were still pending in the Court of Chancery. This evidence, and each part of it, was rejected by the Court, and deemed inadmissible, except the answer of Young, and so much of the bill as was necessary to explain the answer.

JANUARY 1830.

M'Gowen and
Wife.

V.

Young.

The above is the principal matter shewn by a bill of exceptions taken on the trial, and the decision rejecting the evidence is assigned for error, by the defendant below Mary Ann, and M Gowen her husband, who was admitted a party as such in this Court.

BARTON & STEWART, for the appellants.

SHORTRIDGE, CRABB and P. N. WILSON, for the appellee.

By LIPSCOMB, C. J. The first order of the Chancellor did not operate on the property in controversy, but simply injoined it from being removed out of the jurisdiction of the Court. If this order had directed the sheriff to take possession of the property, so long as the order had any influence, it would have barred the plaintiff's suit at law. But the plaintiff was then in the peaceable and rightful posession, and it was only a possible residuary interest, that complainant sought to secure. He then had a right to sue for the property, at the time the suit was commenced, even if the residuary interest was in the complainant. It is contended however, that the second order of the Chancellor on the supplemental Bill, interposed a bar to a recovery. If the plaintiff had a right to the property at the time he commenced suit, which is not controverted, he had a right to recover damages for its conversion, commensurate with his interest; and the subsequent order of the Chancellor, could not affect such right, as it did not injoin the suit at law.

The counsel for the plaintiffs in error has attempted, with much ingenuity, to assimilate the proceedings in chancery to the admiralty process, operating in rem; and he would draw the conclusion, that the strange and annomalous case of two jurisdictions, both operating at the same time, on the same property, was presented. The premises from which this conclusion has been attempted to be drawn, are not well founded. The two Courts were not proceeding at the same time against the property. Chancery can at all times proceed in rem, but such had not been the course in this case. The suit at law is not of that character, nor does it seek a recovery in specie. If the action had been detinue, it might have been urged with much force, that the last order of the Chancellor, on the complainat's Bill, would afford an excuse for not delivering the property. But in the action of trover, it

M'Gowen and
Wife.

V.

Young.

could certainly be no defence. It was urged, however, JANUARY 1830. that if the testimony could not amount to a defence to the action, yet it ought to have been received in mitigation of damages. A slight examination will show that this position is wholly untenable. In this action, and on the issue joined, the jury could fairly take into consideration, by way of reducing the amount of damages, the value of the complainant's residuary interest in the property in contest; and evidence of a legal character, should have been admitted to show what was the probable value of such interest. But neither the Bill, the supplemental Bill, nor the several orders made by the Chancellor, could have proven that complainant had any interest, either present or in expectancy, in the property sued for; the answer of Young, so far as he made admissions against himself, was proper testimony, and it was admitted by the Judge who tried the cause; it was right enough too, to refer to the Bill for explaining the answer. Suppose the testimony rejected had been admitted, it could only have tended to mislead the jury, if it could have any effect at all. And if it had induced the jury to reduce the damages to a mere nominal amount, what possible remedy could the plaintiff at law have resorted to? The judgment would have vested an absolute right to the slaves in the defendant, although by her own shewing, she claimed only a possible reversionary interest in them, on the contingency that Mrs Young, the wife of the plaintiff, shonid die without issue capable of inheriting. We are therefore of opinion that there is no error in the judgment of the Circuit Court.

JUDGE CRENSHAW, not sitting.

Judgment affirmed.

LUCAS V. THE BANK OF DARIEN.

1. If no notice be given of the dissolution of a copartnership, it will be considered as still existing, as to creditors.

2. The rule in such cases is, that to those who have had previous dealings with the firm, actual notice must be given; and notice in a Gazette, to those who have had no previous dealings.

3. A change of pursuits by one partner, is not sufficient notice, nor is a removal out of the State.

4. The rule is not varied, though the creditor be a bank, established after the dissolution.

5. To charge the bank with notice of the dissolution, after a judgment at law, it is not sufficient to shew that the partner who received the credit, was one of the directors of the bank.

6. Judgment obtained in a sister State, when the Court there had no jurisdiction over the person, is not binding here, and the want of jurisdiction is a good plea at law; therefore, Equity will not relieve against a recovery at law on such judgment.

7. A partner may appoint an agent to make and indorse bills, &c. and such power is not void, although granted under seal by one partner only.

8. Whether such power can extend to authorize the agent to enter appear. ances for copartners-Quaere.

9. Equity will not relieve against a judgment at law, for mere technical defects in the proceedings.

10. In Equity, all parties in interest should be joined; but to this rule there are exceptions.

11. Those only against whom process is prayed, are to be considered as defendants in an Equity proceeding.

12. A bill for discovery must state the matter sought to be discovered, shew that it is material, and state the nature of the defence at law; and not deal in vague inquiries.

13. Affirmative allegations in an answer, not responsive to the bill, must be proved at the trial.

14. But where the answer is not traversed, it is to be taken as trueSemble.

WALTER B. LUCAS filed a bill in Equity in the Circuit Court of Montgomery county, against the Bank of Darien, for relief against several judgments at law, which said bank sought to enforce against him.

The bill charges that the complainant and one John Lucas had formerly been copartners in trade, under the firm of J. & W. Lucas; that they transacted business in Milledgeville, and also in Twiggs county, Georgia, and that they were also concerned in the house of Lucas, Goodall, & Co. that on the 18th of May, 1818, they dissolved their copartnership, and a written agreement was executed as follows:

"Milledgeville.-Owing to a dissolution of the copartnership of J. & W. Lucas, and Lucas, Goodall, & Co. I here this day, clear said W. Lucas, of said firm of J. & W. Lucas, and Lucas, Goodall, & Co. of all his liability and responsibility of all demands, debts, contracts,