13 Ala. 106 | Ala. | 1848
The questions which are presented for our consideration are—
1. Can the Chancellor entertain a motion to dissolve the injunction upon the coming in of the answers, if exceptions to such answers put in issue their sufficiency, and which are undisposed of?
By the act of 1841, (Clay’s Dig. 354, § 55,) it is provided, that “ exceptions to bills, answers, and reports, shall be heard and determined by the register, in the first instance;’, but subject to an appeal to the chancellor.” By a subsequent act, passed in 1843, the chancellors have power, within their respective divisions, to hear applications in vacation, for the dissolution of injunctions, to be made after answer filed, upon ten days notice to the opposite party. Clay’s Dig. 358, <§> 82. Before the passage of the latter act, the registers; whose duty it was to hear and determine exceptions to answers, &c., had likewise the power to dissolve injunctions, but by the first section of this act, the power to grant and dissolve injunctions, is taken away from the registers, and the chancellors invested with the power to dissolve in the same manner as if the applicition had been made in court.
Wfe feel' warranted in saying, that a correct interpretation of these statutes doe's not deny to the chancellor the power to hear a motion to dissolve, notwithstanding exceptions may have been filed to the answers. He is not in the first instance to hear the exceptions, but whether exceptions are filed or not, he is, upon such motion, equally bound to look into the answers, and to determine whether they deny the equities of the bill. If they do, he is bound, regardless of the exceptions, to dissolve. The statute conferring upon the register the power to hear exceptions, was intended merely for the relief of the court, which too frequently was embarrassed by the consideration of collateral matters involv
The note upon which the suit at law has been instituted,being payable and negotiable in bank, is placed by our statute upon a footing with bills of exchange. The defendant, Ware, in answer to the direct allegation of the bill, which avers he acquired it as collateral security for a pre-existing" debt, avers that he acquired it long before it was due, in the regular course of trade, and fora valuable consideration, viz : in payment of a debt due from J. B. Earle to him. He also states that Rives, Battle & Co. have no interest in the note, but are merely his agents to collect the same. He further denies all notice of any fraud or force, by threats or otherwise, in obtaining the note. Besides, he appends to his answer a copy of a letter written by the plaintiff in error to him, dated 28th December, 1845, by which he fully acknowledged the justness of the demand, and asked indulgence until he could' raise funds out of the sale of his cotton, to adjust it. Having received the bill, or note, in payment of a debt, Ware is to be regarded a bona fide holder without notice, and the inquiry, in this aspect of the case, so fár as concerns him,whether the bill was obtained by fraud or force from Barney,the plaintiff, is wholly immaterial — he is bound to pay it to
There are but two exceptions filed to the answer of Ware, one is for impertinence in this, that he answers, “if complainant had been defrauded by Joseph B. Earle, in obtaining the note, he ought to have discovered the same between the 25th Earch. 1842, the date of his note, and the 28th December, 1845, the date of his letter promising to pay the same to this defendant, and if he was in duress at the time of the date of said note, his fears must have been greatly excited, to have continued from March, 1842, to December, 1845.” The second exception, for the same cause, (impertinence,) is, that in his answer he states, “ he regards the bill filed by the complainant, as a dishonest attempt to evade the payment of a debt justly due.”
Neither of these exceptions, if well taken, (and we are not called upon to express any opinion as to whether they should be sustained,) affects the merits of the case upon which the injunction rests. If the supposed exceptionable parts of the answer were stricken out, the case would stand precisely where it now does. We think, therefore, the decree of the chancellor, dissolving the injunction, was correct, and it is consequently affirmed.
