6 Paige Ch. 139 | New York Court of Chancery | 1836
From the view I have taken of this case, it is not material that I should consider the question whether Bradley and Nichols, two of the defendants in the judgment upon which this suit is brought, were competent
No repleader is awarded in this cotirt, upon an immaterial issue joined upon a plea. The court, therefore, never inquires as to the materiality of the allegations contained in the plea in such a case, If the truth of the plea is established by the proofs, the complainant’s bill must be dismissed, although the matters stated in the plea contain, in fact# no Valid defence to the suit, On the other hand, if the defendant fails in proving the truth of his plea upon the hearing, the plea must be overruled as false; and the complainant will be entitled to a decree according to his case as stated in the bill.
In the case tinder consideration, the plea contained three distinct allegations, for the purpose of showing that there was no equitable claim against the defendant in this suit# to wit; that Douglass & Dunn were members of the firm of Bradley, Nichols & Co. at the time the note was given, and Were jointly liable with the defendants in the suit in the supreme court, for the payment thereof as a copartnership debt; that the judgment had been fully paid and satisfied by Douglass before the return of the execution issued thereon# and that this suit was prosecuted for the sole benefit of Douglass, the complainants having-no legal or beneficial interest therein; and that the amount so paid by Douglass was no more than his proportion of the debts due from the firm at the time of such payment.
As to the first allegation, if the testimony of Bradley and Nichols is to be received and credited, it would probably be sufficient to establish the fact that Douglass & Dunn had
I think the defendant has also failed in establishing the fact alleged in the plea, that the judgment had been paid by Douglass before the return of the execution, and that the complainants had no legal or beneficial interest in the suit. As Douglass & Dunn were endorsers on the note, they were liable to the complainants for the payment; and Douglass'has probably secured the payment of the debt if it cannot be collected of the defendant in this suit. Such a state of facts would be perfectly consistent with the declaration of Dows, which the defendant has given in evidence,- and also consistent with the oath of Dows to the bill, in which he swears positively that the whole amount of the judgment, with the interest thereon, remains unpaid. To establish this part of the plea the defendant was bound ta prove that Douglass had paid the whole amount as a payment on the judgment; and not merely that he had secured the amount for which he was liable as the endorser of the note. For if the complainants have not relinquished their claim upon the defendant upon the judgment, they have both a legal and beneficial interest in this suit, although their principal object in prosecuting the.suit may be to benéfit the endorser. The plea is therefore falsified in this respect also.
There was no evidence whatever introduced on the part tif the defendant, to establish the allegation that in paying the judgment Douglass had paid no more than his share of the debts of the firm. On the contrary, even if Douglass & Dunn were partners, I think the testimony of Williams as' to the settlement made with the other partners at the time of their dissolution, shows that the latter assumed the payment of the debts, and that there was a balance due to-Douglass & Dunn for which- a note was given at that time. If that was the case, Douglass’ share of the debts' due from the firm was nothing at the time of the recovery
The defendant having wholly failed to establish the truth of the several allegations in his plea, the decree of the vice chancellor was erroneous, and must be reversed with costs. And a decree must be entered for the complainants, overruling the plea as false ; declaring the right of the complainants to have satisfaction of their judgment, with interest thereon from the time it was entered, together with the costs of this suit, out of the property, effects and choses in action of the defendant; and with such other provisions as were directed to be inserted in the decree when this cause was originally before the chancellor, when no testimony had been adduced in support of the plea. (Nee 2 Paige’s Rep. 345.)