| Ala. | Jun 15, 1844
— The points made by the Messrs. Kirk-man, who alone complain of the decree of the Chancellor^ lead us first to consider, whether the bill discloses such a case, as authorizes the relief which the complainant seeks. It is expressly charged that the matters of account between the complainant and Findren grew out of advances made by a firm of which the former was a partner, and for the proportion of losses sustained by the latter in the purchase and sale of steamboats, in the running of which they were interested as joint, owners and proprietors: Further — that the balance of the account depends upon debits and credits, which the parties have never adjusted. ■
Mr. Justice Story, treating of account, as a ground of •equity .jurisdiction, thus states the law: “In matters of account, growing out of privity of contract, Courts of equity have a general jurisdiction,, where there are mutual accounts, (and a fortiori, where these accounts are complicated;) and also vthefe these accounts are on one side, but a discovery is sought, and is material to the relief. And on the other hand, where the accounts are all on one side, and no discovery is sought or required; and also Yhere there is a single matter on the side of the plaintiff, seeking relief, and mere sét-off on the other side, and no discovery is sought or required; in all such cases, Courts of equity will decline taking jurisdiction of the case.” [1 Vol. Com. on Equity; 441. See also, Coleman v. Hutchinson, 3 Bibb’s Rep. 210; Breckenridge v. Brooks, 2 A. K. Marsh Rep. 338; Duncan v. Lyon, 3 Johns. Ch. Rep. 360; Hawley v. Cramer, 4 Cow. 717" court="None" date_filed="1825-06-15" href="https://app.midpage.ai/document/seth-v-cramer-6139716?utm_source=webapp" opinion_id="6139716">4 Cow. Rep. 717; Southgate v. Montgomery, 1 Paige’s Rep. 41; Miller v. Lord, 11 Pick. Rep. 11; Foster v. Wilber, 1 Paige’s Rep. 537; Smith v. Marks, 2 Rand. Rep. 449 ; Fowle v. Lawrason’s Ex’r 5 Peter’s Rep. 495; Nelson v. Allen, 1 Yerger’s Rep, 360.] The same learned author also says, that cases ’of account between tenants in common, between joint tenants, between part owners, between part owners of ships, and between owners of ships and the masters, are peculiarly within the jurisdiction of Courts of Chancery. “They all involve peculiar agencies, like those of bailiffs or managers of property, and require the same operative power of discovery, and the same interposition of equity.” [1 Vol. Com. on Eq. 446.] Again — (in his Treatise on Pari-
The matters of account between the complainant and Fin-dren must have been complicated, embracing the transactions of several years, relating to the employment of several steamboats upon their joint account, and made up of many charges for and against each other. In this view, the case as against Findren, is proper to be considered in equity; and when we add the fact, that the complainant and himself were joint owners, the jurisdiction of that tribunal cannot be disputed, if the authorities cited are to be recognized.
But it is insisted, that although the decree may be sustained as to Findren, the Messrs. Kirkman were improperly joined as defendants with him. To sustain this argument, we have been referred to a familiar class of cases, which determine that a creditor cannot have the aid of a Court of equity to enable him to enforce the collection of a legal demand, or to give him the benefit of the estate of the debtor in the hands of a third person until he has exhausted his legal remedies. This principle is clearly stated in the cases cited for the plaintiff in error. [See also, 1 Paige’s Rep. 305; 4 Monr. Rep. 581; 3 Munf. Rep. 521; 3 Litt. 427" court="Ky. Ct. App." date_filed="1823-06-13" href="https://app.midpage.ai/document/jones-v-henry-7383031?utm_source=webapp" opinion_id="7383031">3 Litt. Rep. 427; 4 Ohio Rep. 125; 3 Leigh.
The ninth section of the act of 1833 “ concerning attachments, (Clay’s Dig. 57, § 9,) enacts, that when one non-resident is indebted to another, and removes his property into, or holds? property in this State, which would be subject to an attachment for the benefit of a resident of this State, the same benefit shall be extended to such non-resident, as is by law secured to persons residing within this State : Provided, that security residing in this State shall be given as in other cases; and in addition to the oath required in other cases of attachment, the plaintiff, his agent, &c., shall swear, that the defendant has not sufficient property within the State of his residence, within the' knowledge or belief of the plaintiff, &e., whereupon to satisfy the debt on which the attachment issues.” By the thirty-first section (Id. 61, § 31,) it is declared that it shall not be necessary fo.r the person suing out an original attachment, to state in the .affidavit, that the plaintiff therein is a citizen of this State; and whenever an attachment shall be issued in favour of any one not authorized by law to sue out the same, it shall be abated on plea of the defendant, supported by affidavit. It is further provided that the attachment law shall not be strictly or rigidly construed. [Id. 59, § 17.] The nineteenth section (Id. 59, § 19) authorizes an attachment to be levied in the hands of a third person, who will be thereupon required to^ state upon oath what he is indebted, &c. to the defendant.
In the case at bar it is distinctly alledged that Findren is a non-resident, is insolvent, and the complainant has no other means of obtaining satisfaction of his demand, than by sub
The order of reference to the register is general, viz: of “ the matters of account” between the parties, without giving •any direction as to the mode of taking testimony, whether ■any should be taken, or whether the same should be specially reported. Under this reference it was competent for either of the parties to lay before the register, the books showing the state of accounts of the proprietors of the “ Mohawk,” for the business season of 1833 and ’34; and also to examine witnesses viva voce, in aid or explanatory thereof. In Remsen v. Remsen, 2 John. Ch. Rep. 495, the Chancellor after noticing
In the matter of Hemiup, 3 Paige.’s Rep. 305, it is said that the master should not report the evidence when it was referred to him to draw certain conclusions of fact. When the Court refers it to him to examine and report as to the existence of a fact, or as to any other matter, it is his duty to draw the conclusion from the evidence produced before him, and to report that conclusion only. [See also 1 Molloy’s Rep. 54; Id. 187.] And it has been held that a master in Chancery or commissioner substituted for him, pro hac vice, sometimes exercises greater powers, according to the practice of some of the States, than are exercised by a master in England. [Farmer and another v. Samuel, &c., 4 Litt. 187" court="Ky. Ct. App." date_filed="1823-10-16" href="https://app.midpage.ai/document/farmer-v-samuel-7383085?utm_source=webapp" opinion_id="7383085">4 Litt. Rep. 187.]
It is provided by statute, that, “ if a decree cannot be given on the merits of the case, until all matters of account between the parties are referred, then the same shall be referred and. ascertained before the hearing, under such rules as the Court may prescribe.” [Clay’s Dig. 352, § 43.] The forty-fourth.
The report affirms that the register had carefully examined “the verified statements of the parties in connection with the books of the steamboat ‘ Mohawk/ together with the proof presented by the parties on either side, to sustain their respective accounts ;” and as the result of such examination, he states the accounts between the parties, and deduces the bal-anee due to Findren by T. & J. Kirkman. None of the proof is embodied in the report of the register, nor does it appear from the record that any exception was taken to its admission. We cannot then, undertake to determine from the case as presented to us, whether the Chancellor erred in either of the points excepted to, save that which relates to the charge of interest. As to that, the report is sufficiently explicit in showing on what basis it rests. It states that the books of the “Mohawk” were balanced on the 7th of December, 1835, near eighteen months after the exhibition of the complainant’s bill, and on that day there remained in the hands of the Messrs. Kirkman the sum of eighteen hundred and fifty-five 04-100 dollars, Findren’s dividend of the earnings of the boat. The record does not inform us that they at any time proposed to bring this sum, or any part of it into Court, or in any manner place it under its direction. In fact, at the time their answer was filed, (June, 1835,) they were unwilling to admit their accountability to Findren to any amount — state that suits were then pending against the proprietors of the “ Mohawk” for the loss of, or injury to goods, the transportation of which they had previously undertaken, &c. When these points were determined, (except the one which had been instituted in Louisiana,) we are not informed. That was decided in June, 1S36, in favor of the defendants, and for any thing appearing to the contrary, the actions which had been brought in Tennessee, and in which the defendants were also successful, may have ■been determined previously. Under this state of the case are the Messrs. Kirkman chargeable with interest from the time they had realized the amount due the owners of the boat and balanced the books?
The vendee of land to whom a conveyance has been made and possession delivered, cannot excuse himself from the payment' of- interest,-upon the ground that he was prevented from paying the principal, by a third person who set up an adverse claim, and commenced a course of litigation which continued for ten years,'.arid was then determined in favor of the ven-dee’s.tille. [Selden v. James, 6 Rand. Rep. 465.] To excuse the vendee^ in such case from paying interest, it is said not to be énough-that he should be ready and willing to pay the principal; but it should appear that he kept the money, useless and unproductive, by him — (Id.) The case of Brockenbrough v. Blythe’s exr’s, 3 Leigh. Rep. 619, goes even farther than this, and maintains, that in order to relieve himself from the payment of interest, the vendee should give notice to the vendor that he has kept the money idle.
Any trustee will be chargeable with interest if. he has made interest, used the money, or is guilty of laches or neglect. [Carroll v. Connett, 2 J. J. Marsh. Rep. 303; Cassell v. Vernon, 5 Mason’s Rep. 332.] And it has been held, that if an agent does not in a reasonable time apply money to the purposes for which it was received, he will be liable to pay interest. [Harrison v. Long, 4 Dess. Rep. 110.] So if one man retains the money of another, the presumption is, that he kept it for the purpose of profit, and that he should therefore
We have been thus particular in noticing' upon this point, because the case is one of self, and as it respects the right of the complainant to recover interest under the circumstances, almost res integra in this Court. The case cited from 1 Dana 338" court="Ky. Ct. App." date_filed="1833-10-08" href="https://app.midpage.ai/document/shackleford-v-helm-7379784?utm_source=webapp" opinion_id="7379784">1 Dana, 338, goes quite beyond what the facts of the present require, in order to charge the Messrs. Kirkman with interest. There the party retaining the money did not set up a claim to it, or deny his liability to account for it; — here they did not admit that they were chargeable for moneys belonging to the complainant’s debtor, but insisted upon the right to retain whatever they might collect upon the accounts due to the owners of the “ Mohawk.” No injunction was awarded to restrain the use of the dividend of of Findren ; as the Messrs. Kirkman did not concede his right to it, but insisted they were entitled to its control, it is perfectly clear that they are accountable for interest. The presumption cannot be indulged, even if it would avail any thing, that
Conceding that all the suits which had been brought against the proprietors of the “ Mohawk” for losses sustained by the shippers of goods, were pending on the day, from which the register charged interest, and still as the Messrs. Kirkman denied that they held any funds to which Findren was entitled, they would not occupy a more favorable attitude. If they had admitted a liability, either absolutely or sub modo, then perhaps the Court, might have made some order in respect to the money which would have protected the- rights of all parties, and made it productive until they were finally adjusted. This admission not being made, as already observed, there was an assertion of the right to use the money, which is, enough to authorize the charge for interest; which, according to the reason of things, and at least one of the authorities cited, should be calculated from the date of its reception.
It is said to be a general rule, that a cross bill must be brought before publication has passed in the original cause, .unless the plaintiff in the cross bill, will go to the hearing upon the depositions already published. This rule is intended to prevent perjury, &c., in case the parties should after publication of the former depositions and proof, be permitted to examine witnesses de novo touching matters, to which they or others have been already examined. But publication will be postponed for the purpose of enabling a defendant to file a cross bill upon a special application showing sufficient grounds for such an order. When an original and cross bill are filed, both causes usually proceed to a hearing together, which could not be done, if the cross bill were filed after publication in the original cause, unless the cross bill were heard on bill and answer. [Story’s Eq. Plead. 315.J Mitford in his Treatise on Pleading, (81) says, a cross bill is a bill brought by a defendant against a plaintiff 'or other parties in a former bill still pending, touching the matter therein litigated. [See also Galatian v. Erwin, Hoplt. Rep. 58.] Such a bill may set up addi-' tional facts not alledged in the original bill, where they constitute part of the same defence, relative to the same subject matter. [Underhill v. Van Cortlandt, 2 Johns. Ch. Rep. 339.] But
Subpoena should be served upon the filing of,a.croSs bill. [Anderson v. Ward, 5 Monr.Rep. 420.] Such a biíúcannot contradict the assertions contained in the original answer. [Hudson v. Hudson’s Ex’rs. 1 Rand. Rep. 117.]
White v. Buloid, (2 Paige’s Rep. 164,) is a leading case upon the law in respect to cross bills, and determines several points pertinent to the case before us. Among other things, it is said not to be a matter of course, to stay proceedings in the original suit in any case, unless the defendant in the cross bill is in contempt for not answering; if it be not filed before, or at the time of answering in the original suit, the delay must be accounted for, or the proceedings will not be stayed ; it is not too late to file a cross bill after the proofs in the original suit are closed, if the complainant in the cross bill is willing to go to a hearing on bill and answer as to the cross suit; but the delay of the complainant in the cross suit will not be permitted to delay the hearing of the original cause. [See further, Mitf. Plead. 83, note 1, and cases there cited.]
Without stopping to inquire whether the matter of the bill filed by the Messrs. Kirkman is the proper subject of a cross suit, it may be enough to say, that although it recites the pen-dency of the original cause, yet it does not pray that it may be regarded as a cross bill, or that the suits may be brought to a hearing at the same time; — it was filed after the order of reference and report of the register in obedience thereto •, all which are tantamount at least to publication, and in fact pre-suppose it. In addition to this, it may be remarked, that the bill does not ask an injunction, or other order, to stay proceedings in the original cause, nor was any such order made; nor did the ■complainants therein, propose to submit to a hearing on bill and answer. In this predicament of the cause, the Court might with strict legal propriety, have refused to consider the bill of the Messrs. Kirkman as a cross suit. If it cau be regarded as an original independent bill, and as such, was prematurely
It may be questioned whether the onus of proving the insolvency of Findren could be thrown upon the complainant in any other manner, than by an express denial of the fact, either upon knowledge or belief; the allegation being made merely for the purpose of giving jurisdiction, its truth perhaps would be presumed-unless denied. Be this as it may, the fact of insolvency must under the circumstances of this case, if it exist, be known to the Messrs. Kirkman, and a failure to deny it will operate as an admission of its truth.
This view is decisive of all the points presented upon the record ; the result is, that the decree of the Court of Chancery must be affirmed. V