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JANUARY 1830. Madison Circuit Court, and brought by writ of error to

this Court by William McBroom, the complainant below. McBroom

In October, 1827, McBroom filed his bill against AlexSommerville. ander Sommerville, James Black, David Ireland, and also

against James J. Thornton, John McKinley, Oliver S. Halstead, and Arthur F. Hopkins, their attorneys. The material facts of which, as recited and summed up in the opinion delivered in this Court, are, that Black and Ireland, merchants trading under the firm of Black & Ireland, were indebted to Sommerville, on a note made by them to him for $4,800, on which there remained due the sum of $3,798 50; that they transferred and assigned to him notes and accounts due by divers persons to an amount sufficient to pay the debt, without recourse, except only in case of insolvency found by a due course of law; that subsequently, Sommerville met with Black, one of the firm, in Nashville, and having heard that he had shipped a quantity of cotton to the city of New Orleans, for the purpose of paying for a parcel of cotton bagging, which he had directed to be shipped to that port from

Scotland, informed him that he had attached the cotton to pay the debt of Black & Ireland; that this was a false representation made by Sommerville; that in fact no attachment had been levied; that Black, with a view to raise the attachment on the cotton, gave his own covenant to Sommerville, to pay him a sufficient quantity of the cotton bagging to discharge the residue of the debt of Black & Ireland; that most of the notes and accounts transferred by Black & Ireland, could have been collected by due diligence. It is further charged, that Sommerville instituted a suit against Black on the covenant; that Black employed Arthur M. Henderson, (his co-partner, James W. McClung being absent,) to defend the suit, and gave him his papers, evidence and instructions for the defence, and having important business, left the United States, and went to Scotland, under the belief that his defence would be made; that Henderson was dangerously ill, and unable to attend at the trial: that McClung was unprepared and unable to make his defence, and in consequence thereof, that judgment was rendered against him for $2,762 damages, besides costs; that Black filed his bill to injoin the judgment against him, stating substantially the facts above noticed, and that Sommerville, in his answer, admitted the material facts charged in the bill; that he admitted that the covenant had been given under the impression that the cotton had been attached in New Orleans, but that in fact it had not been; but he

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averred that the judgment was not for more than was actu- JANUARY 1830 ally due him, and denied all fraud; that he admitted the sickness of Mr. Henderson, the absence of Black, and that

McBroom he did not deny the inability of Mr. McClung to make the Sommerville. . defence, but denied any negligence in the collection of the notes and accounts transferred. The bill further alleges that for the purpose of obtaining an injunction on this bill of Black; that he, Black, gave an injunction bond, in which the complainant, McBroom, together with one Gaston, became bound as his security. He also charges that there was a final decree dismissing the bill of Black, and that judgment has been obtained against him on the in. junction bond in favor of Sommerville. He does not al. lege any fraud or collusion in obtaining the decree dismissing the bill; he states that Ireland is solvent, and that Black is insolvent. The prayer of the complainant's bill, is, that Sommerville and his attorneys be injoined from collecting the amount of the judgment obtained against the complainant, that an account may be taken of the proper amount for which he is chargeable on the notes and accounts, and if any thing be found due on such accounting, that it be decreed to be paid by Ireland; there is also a prayer for general relief, &c. At October term, 1827, in the Court below, the defendants moved to dismiss the bill for want of equity on its face, which motion the Court sustained, and the bill was dismissed. This was here assigned for error by McBroom, the complainant, who died pending the suit in this Court, upon which his administrators were made parties.

GAYLE, HUTCHISON, and CRAIGHEAD, for the appellant, argued, and cited i Maddox's Chancery, 205. 2 Thomas Coke, 506, (n. 3.) 14 Johnson, 79. i Wheaton, 6. 1 Star, kie's Evidence, 191-2-3. 199, 3. Wilson. 304. 6 Term Reports, 607. 4 Term Reports, 146. 2 New Hampshire Reports, 26. 5 Massachusetts, 334. Cooper's Equity Pleading, 271, 274. 1 Atkyns, 571. 17 Massachusetts, 237, 2 Atkyns, 44. 4 Brown's Chancery Reports, 60. 4 Johnson's Chancery Reports, 123, 300. Gilmer's Reports, 159. 3 American Digest, 83. 7 Johnson's Chancery Reports, 1. Fell on Guaranty, 214. 17 Johnson, 384. 4 Dess. Reports, 44, 227. 1 Pothier, 246, 247. 10 Johnson's Reports, 524. Paley on Agency, 249, 250. 6 Johnson's Reports, 126. 1 Johnson's Chancery Reports, 73. 2 Dallas's Reports, 236. 1 Washington's C. C. Reports, 320, 14 Johnson's Reports, 501.

JANUARY 1830. HOPKINS, for the appellees, argued in reply, and cited

2 Harrison's Chancery, 193, 195. 1 Harrison's Chancery, MeBroom

141, 142, 143. 2 Vesey, sen'r. 630. 1 Johnson's Cases, Sommerville, 492, 496. 3 Henning & Munford, 67.

By LIPSOMB, C. J. The complainant prays that the judgment obtained on the covenant, and the decree dis. missing Black's bill, may be opened, and that if this cannot be done, then that Ireland may be substituted in the judgment on the injunction bond in his place.

The counsel for the complainant insist that this bill is in the nature of a bill of review, and that Chancery ought to allow him all the equity that Black was entitled to. In ánswer to this position, it will be only necessary to say, that it does not contain a single essential ingredient of a bill of review; and as there is no fraud alleged in obtaining the decree, there cannot be the smallest pretence for opening and revising the matters charged in that bill; we presume that its merits were fully discussed, and duly considered on the final hearing. It is not important to inquire whether a sufficient excuse was rendered by Black in his bill, for not making his defence at common law when sued on his covenant, all the facts set up by him as grounds of relief could have been used in his defence at law, and it does seem, if we were disposing of that question, that his shew. ing is a very imperfect one. There is no fraud suggested in the management of the suit, nor in obtaining the judgment. It is true that the inability of counsel from sick. ness, to attend to a suit, would be a ground of relief under certain circumstances; it is not denied but that Mr. McClung was present, . ttending to the suit at law when it was tried, and we will presume he felt himsell fully prepared for its defence. If the sickness of his partner, Mr. Henderson, had left him unprepared for the defence, it should have • been made a ground for a continuance before the trial, or of a new trial after verdict; neither of these modes was resorted to, and we are invoked to draw an inference of surprise without the faets to warrant such a conclusion. The same liberal indulgence is claimed for Black's not sufficiently pressing his rights before the Chancellor on the final hearing of his bill. But as before remarked, these are considerations that grow out of points not material in disposing of the case, for we are certainly not to consider whether the final decree dismissing the bill was based on sound principles of equity or not. The case in 2 Johnson's

McBroom

v.

Chancery Reports, a is conclusive, that so far as the com- JANUARY 1830. plainant seeks relief from Sommerville, that he has no merits at all; it is clear that unless there had been fraud in dismissing the bill on the final hearing, the security to the Sommerville. injunction bond is not entitled to relief. The cases referred to by the complainant's counsel are not in point, and cannot, it is believed, in any degree apply to this case; if a Page 213. a bill has been dismissed for a failure to prosecute, it would not conclude the complainant; he might bring his bill again, and the former dismissal would be no more than a nonsuit or a discontinuance at common law. And this is the doctrine of the authorities relied on by the complainant's counsel; but even in such cases, the security would not be discharged from the forfeiture of his bond.

It is urged, that as the debt was originally due from the firm of Black & Ireland, and that Black had given his own covenant for the firm debt; that the complainant is entitled to the same recourse against Ireland, that he would have had against Black, and he therefore prays that Ireland may be substituted in his stead in the judgment on the injunction bond. If the liability of Ireland was admitted, yet the conclusion that he ought to be substituted in the place of the complainant, would not follow, for it is certain that if Black himself was solvent, Sommerville could not be compelled to discharge the complainant, and seek satisfaction of his judgment from him; how can a Court of Chancery, any more than a Court of Law, compel a party to relinquish a security, or to change it without his consent, when the liability of such security had been incurred without fraud? If the bill, so far as it professes to be an original bill, had have sought to make Ireland account over to the complainant, the inquiry would then have been, has he any equitable claim for such reimbursement? But as that has not been done, we will decline expressing any opinion of the liability of Ireland to the complainant; if he has any grounds for calling on him for reimbursement, the dismissing of this bill will not preclude his asserting them i:: a proper form. We are unanimously of the opinion that the decree dismissing this bill, must be affirmed, with costs.

JUDGE WHITE not sitting.

JANUARY 1830.

2s 530 116 289

SADLER, et al v. Robinson's heirs.

1. Where money has been paid under a contract, which is rescinded, or al

leged to be fraudulent, an action at law lies to recover it baek; and in the 1 absence of special allegations of failure of proof, or other matter of equi

table relief, Chancery has no jurisdiction. 2. Chancery has not the power arbitrarily to annul or rescind contracts to

administer justice, but is bound by rules and precedents. 3. A party cannot claim a rescission of a contract for fraud, after entering into

new stipulations concerning it, with a full knewledge of the fraudulent

circumstances. 4. Where a contract has not been rescinded, or otherwise determined, the

purchase money cannot be recovered baek. ā. Long acquiescence in a transaction, without objection, will create a pre

sumption of a waiver of a fraud, and recognition of an act done by another 6. Where a firm purchased lands. and one of the partners was an infant,

he cannot recover back his portion of the purchase money paid to the vendor, the contract being binding as to the other partners, and they having the right to control the firm funds.

This cause came by appeal from the Cireuit of Madison, sitting in Chancery.

The bill was filed in 1823, by Isaac Sadler, Ethelwin Sadler, and Silenus 0. Sadler, against Paulina Robinson, widow of Littleberry Robinson, deceased, and John Dickinson, and Frances, his wife, Rodah Horton, and Christiana, his wife, James Robinson, William Robinson, heirs and distributees of said Littleberry, and William Patton, his administrator. At November term, 1828, the cause came on to be tried on the bill, answers, and proofs, and the Chancellor in the Court below rendered a decree in favor of the complainants, Isaac Sailler and Ethelwin Sadler, surviving partners of the firm of Isaac Sadler & Sons, for so much land as at the price of forty five dollars per acre, would amount to the sum of seventeen thousand dollars; divesting the defendants of title to so much, and vesting it in the complainants, and appointing commissioners to lay it off, and allot it to the complainants. From this decree, the defendants appealed. The record is very voluminous, and contains a great variety of allegations, which are complicated, and set forth much in detail. The facts deemed the material and leading ones by the Court, and those on which the decision was made, are recited in the opinion delivered in the following words:

“ It appears from the bill, that in the summer of 1818, Isaac Sadler, the father, Ethelwin Sadler, and Silenus Sad. ler, the sons, made an agreement with Littleberry Robinson, for the purchase of six quarter sections of land, situa

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