Lucas. accounts, or otherwise heretofore made or contracted, and JANUARÝ :930. he, said Walter Lucas, taking the stock of goods, debts, and the inclusive establishment in Twiggs county, as an equivalent for his interest in said firm of John & W. Lu- Bk. of Darien. cas, and Lucas, Goodall, & Co. and John Lucas, taking the establishment at Milledgeville, and all things thereto appertaining, as an equivalent for my interest, I paying all debts, &c. Given under my hand, this 18th May, JOHN LUCAS." 1819. That the complainant, since that time, had no partnership transactions in Georgia, and no concern with J. Lucas, but was concerned in business with one Henry Lucas, in Alabama. He charges that in 1818, the Darien bank was chartered, a branch of which was established in Milledgeville, and went into operation only after he removed to Alabama, and with which he never had any dealing; that John Lucas was a large stock holder, and was a director in said branch bank, and continued so till July, 1820; and that after the complainant's removal, in 1819 and 1820, John Lucas became embarrassed by erecting large buildings in Milledgeville, and to relieve himself, obtained loans from the branch bank on twelve notes, which they discounted in May, June, July, August and October, 1820. amounting to $29,087 75. The notes were signed in the name of J. & W. Lucas, in some of them as makers, and others as indorsers; and some were made and some indorsed in the name of J. & W. Lucas, by T. Fort as their attorney; that Fort signed them by virtue of a power of attorney under scal, made by John Lucas, in May, 1820, in the name of J. & W. Lucas, two years after the dissolution of the partnership. He charges that the notes and power were made, and all the transactions done, entirely without his knowledge, authority or consent, and that John Lucas received all the proceeds to his own use; that the pursuits and embarrassments of John Lucas were known to the bank, that they knew the complainant had removed to Alabama, notwithstanding which, they discounted the notes in the name of J. & W. Lucas, without any proof that they were partners, or ever giving notice to the complainant. It is further alleged, that in August, 1820, after the principal amount of the notes was discounted, and when part was due, the branch bank, without the knowledge or consent of the complainant, made an arrangement with Lucas. V. JANUARY 1830. John Lucas, and on certain conditions, extended the time of payment of the amount discounted, for twelve months; and a consolidated note, as the complainant is informed, Bk. of Darien, was received by them, of J. Lucas, in the name of J. & W. Lucas, for the whole, with security; after which they again granted him other discounts; and that in November following, all the original notes were protested for non payment, of which no notice was ever given to the complainant; that the directors, though aware of the embarrassed situation of John Lucas in the summer and fall of 1820, yet took no steps to coerce payment of the notes till February or March, 1821, when they brought suits in the Superior Court of Baldwin county, Georgia, and in some of the cases service of process was acknowledged by John Lucas, in the Name of J. & W. Lucas, and in others, by one T. H. Kenan, by virtue of a power of attorney made by said John Lucas, and that the complainant at no time during the pendency of the suits, had any notice of their existence; that in August, 1821, after the suits were commenced, and before trial, John Lucas died; notwithstanding which, the bank proceeded to judgment against both him and the complainant; that about the same time, suits were also brought against W. D. Lucas, as maker of some of the notes, and as indorser of others, and before judgment the branch bank compromised with him, received a part, and exonerated him from the remainder; but how much he paid, the complainant does not know. He also states that he is informed and believes, that Hunter made considerable payments, but the amount he does not know. It is further shewn by the bill, that in August, 1822, the bank instituted in Montgomery county, Alabama, seven suits on seven of the notes, against the complainant, to which he pleaded that judgments had been previously rendered against him on the notes, in Georgia, on which plea, judgments were rendered for him; that afterwards in March, 1826, twelve suits were brought against him on the records of the judgments obtained in Georgia, which last have, by order of the Court, been consolidated into one suit, which is still pending. The complainant alleges, that he is informed that the correspondence between the branch bank and said John Lucas, in relation to the extention of time of payment of the notes, is in the possession of the directors, and that he has no legal means by which he can procure proof of it to be used at law; that Lucas V. he is not in possession of the accounts of said John Lucas, JANUARY 1830 with the bank, shewing the payments made by W. D. Lucas and Hunter, and has no means to prove them at the trial; that the judgments rendered in Georgia, although Bk. of Darien, illegal in that State, have not been set aside, wherefore he cannot defend at law. The prayer of the bill is, that an injunction may issue against the Darien bank, restraining them from further proceedings at law; and that a subpoena may issue to the president and directors of the branch bank, to answer &c. and for general relief against the Darien bank. The injunction was granted without security in July, 1826, and the bill was filed in March, 1827. In an answer and an amended answer filed by the Bank of Darien, they admit the complainant's residence in Alabama, but do not know when he removed there; they admit the copartnership but deny the dissolution, or at least, that such disssolution ever was made public, or that the Bank of Darien had any notice of it. They say the partnership was notorious, and if a dissolution had been known to them, no discounts would have been made by them. They admit that John Lucas was a stockholder and director in the bank, that he engaged in erecting buildings; that discounts were made to the firm; they do not know who received the proceeds, but believe it was the firm; they admit the making of the notes and indorsements by Fort, the attorney, and that it was under the power made in the firm name by John Lucas, and insists that the seal to it was surplusage and could not vitiate it, and they believe it was made with the complainant's knowledge and consent. They believe that complainant received a large portion of the proceeds of the notes, and deny that any fraudulent discounts were made, or that any arrangement was made for extending the time, or that any consolidated note was taken. They say that there were merely propositions made for that purpose, but which were not complied with, and the correspondence on that subject is set forth. They admit trying the suits in Georgia, and that service was acknowledged by John Lucas, in the name of the firm, and also by Kenan under a power made by John, but that it was proper as a partner to do so; and refer to exemplifications, as to the manner in which they were conducted, and insist they are valid; that the complainant knew of their pendency, and deny that they were rendered previous to the death of John Lu JANUARY 1830. Cas. Lucas They admit that suits were brought against W. D. Lucas and Hunter, and shew what notes were settled, and deny any arrangement made with them that is prejuBk. of Darien. dicial to the complainant. They admit that seven suits were brought, which resulted as charged by the complainant. They also admit bringing the twelve suits, and insist on their right to recover in them. They exhibit all the correspondence to be found relating to the matter, &c. and deny all fraud and unlawful combination, &c. At March term, 1827, the defendants appeared and moved for a dissolution of the injunction, which was overruled without prejudice. At September term, 1827, a motion was again made to dissolve the injunction for want of equity in the bill, which was also overruled, on which the answer was filed. This answer was excepted to, and some of the exceptions were allowed, and others overruled; the amended answer was afterwards filed, which was also excepted to; but at March term, 1828, those last exceptions being all overruled, the injunction was dissolved, and the cause was on motion of the complainant, and by consent, set down for hearing on the bill, answers, and exhibits. The Circuit Court rendered a decree dismissing the bill, from which Lucas appealed to this Court. The errors assigned are that the exceptions to the several answers should have been sustained, and the defendants below perpetually enjoined, and that the bill should Wash. Rep. 287 1 Mun- not have been dismissed. ford 373. '7 Term Rep. 417. 2 Caines Reo. 254. Muf. 433. 2 John. Rep. 293. 1 Dall. 531. GOLDTHWAITE and THORINGTON, for the appellant. 207. 10 East The answers set up new matter in avoidance of the allegations in the bill; this new matter should have been 1 Hen. and proven on the trial, otherwise all the allegations in the bill might be admitted, and yet be avoided by new matter not responsive, which would necessarily compel the complainant to prove a negative. a John Lucas was a director of the bank, and therefore, the bank is properly charged with notice of the dissolution. One partner cannot bind his copartner by deed, therefore, the notes executed by Fort under the power of attorney are void, and also the judgments rendered on them; c as much so as if they had been forged. There was no legal proof of the service of the process in those suits; where service is acknowledged, the hand writing must be proved: this was not done. d. The bill does not shew there are judgments in c& John Rep. 67, 161. 2 Kent 91, 13 John. 121. 4 9 East 192.1 1 Kirby 19. Alabama; the answer sets them out; this is new matter; JANUARY 1830. b V. a Bk. of Darien. a 338. John. Ch. Rep. 45. 4 Ib. 265.10 Vesey 52. 2 Mad. John. 65. C. Rep. 205. 2 Mad. 338. 1 Ves. 52. 4 J. and if the plea of former recovery binds the appellant, Lucas the replication of nul tiel record, binds the bank. When a defendant undertakes to answer, he must answer fully; the amended answer is evasive as to Fort's agency, and alleges a ratification of it by the complainant, but which is not explained, nor is the acceptance of the service in Georgia; nor is it shewn how much W. D. Lucas paid. We are in Equity entitled to an injunction against the proceedings here, and also to relief against the judgments in Georgia, on the ground that the Court has obtained jurisdiction and will retain it to do full justice. BUGBEE, ROCKWELL and GORDON, for the appellees. An appeal from a final decree opens the whole case for consideration. We may then consider the case in two points of view; I. As made by the complainant upon the face of his bill alone; and II. As presented by the bill, answers and exhibits, jointly. I. The bill shews no grounds for equitable relief. It is deficient in three respects. 1. The bank is not made a party. The objects of the bill are three frold; to discover facts from the branch bank; to injoin the appellees from proceeding at law; and to obtain general relief; but no process of subpoena is prayed against the bank. No one is a party, against whom process is not prayed; and praying relief against the agent does not make the principal a party. All persons having an interest, should be made defendants, d and here the bank is not properly brought before the Court. It is true It is true there are exceptions to this rule, but where a necessary party is wanting, the objection is available on the final hearing. It is somewhat analogous to a want of jurisdiction, which is a good objection at any stage of the proceedings. f 2. The nature of the defence at law is not set out; and this is a fatal defect. The bill is said to be for discovery of matters to be used at law; it seeks to injoin proceedings at law; it is not, therefore, an original bill. Its character is to be determined from its objects, and matter on its face. If it could be viewed as a bill for general relief, bills of discovery, technically so called, would be unknown, Courts of common law would become useless, and jury trials would be of rare occurrence; it would destroy those land marks which experience has placed round legal and c1 John. Ch. 2 John. Ch. Rep. 245. 7 Ves. 257, Rep. 437. 9 Wheat." Eden 231. 12 Wheat. d 8 John. Ch. 4 lb. 25. 7 Ib. 211. 3 John. Cases 311, 596. 10 John. 1 Peters U. Rep. 167. S. Rep. 306. 2 Atk. 510. f 1 Peters U. S. Rep. 110. Cas. in Error 296.1 C. Rep. 546.3 lb. 45. h 9 Cranch 19, 25. |