33 Ga. 102 | Ga. | 1861
Jenkins, J., delivering the opinion.
In considering a demurrer to a bill in Chancery, the case must be taken as made in the bill. Where an injunction of a suit, pending at law, has been obtained, and relief is sought in equity, the defendant demurring to the bill on the ground that “ the complainant has a complete remedy at law,” must be understood as affirming, not simply that, if the averments in the bill be true, he might successfully have resisted the recovery sought against him at law, but that he might have obtained in that suit at law a complete remedy for the case
It must reach the whole mischief, and secure the whole rights of the party, in a perfect manner, at the present time, and in future; otherwise, equity will interfere, and give such relief and aid as the exigency of the case may require. See, also, Mitford Eq. Plead, by Jeremy, 111, 112, 117, 123. 1 Woodeson’s Lectures, Lee. 7, pp. 214, 215. Hinds’ Prae., 153. Eorpies Eq. PL, 128, 129. Further, Lord Redesdale, in enumerating cases in which equity assumes jurisdiction, makes this a distinct class. To put a bound to vexatious and oppressive litigation, and to prevent multiplicity of suits.” This classification, as properly defining the extent of equity
1st. We hold, then, that a, bill in equity, wherein injunction of a common law action, and relief is sought, is not demurrable, on the ground that the complainant’s remedy is. adequate and complete at law, if it appears from the same facts as stated in the bill, 1st, that the plaintiff at law is not entitled to recover; 2d, that the defendant is entitled to recover something; and 3d, that he could not shape his defence in the action pending at law, so as to recover his full measure of right. In such a case, equity will interfere to settle the whole controversy by one decree, the negative and positive relief sought by complainant depending upon the very same fact. Let us apply this rule to the case at bar. The complainant alleges that one Scott and- one Jones, who had been carrying on a mercantile business, in partnership, employed him to settle up their affairs; that he had collected all'debts due them, and paid all due by them — had made out an account of receipts and expenditures, in his agency, from which it appeared he had paid largely more than he had received, and which they admitted to be correct, promising to pay him the balance; that he had never been paid in full, but Scott had made him sundry partial payments, taking, each time, complainant’s note, instead of his receipt, for the amount of payment, because, he said, there had not been a settlement between the partners, but distinctly promised that when such settlement was had he would give up the notes; that the consideration of each note was a partial payment by one partner of a debt due by both to complainant; that Scott having died, the defendant in equity ha<í administered on his estate,. and instituted suit on those notes against complainant at law. The bill was filed against the plaintiff below, as administrator of Scott, and Jones, the surviving partner, and prayed injunction of the common law action, and a decree for the balance of the indebtedness thus partially discharged. Assuming the truth of these allegations, it is manifest the plaintiff at law is not entitled to recover. It is equally manifest that the complainant is entitled to the unpaid balance of the
2nd. But the demurrer is placed, secondly, on the ground that the defendants have been misjoined, there being no privity, no connection or indentity of interest between them. The complainant’s case consists of two leading facts: 1st, that the intestate of the plaintiff below, and the other defendant in equity, were jointly indebted to him, and that the notes sued on at law were not, in.fact or in mutual understanding between the parties, evidences of debt, but evidences of partial payment by one of the joint debtors. The fact that the plaintiff at law is seeking to enforce them as evidences of debt, makes her. an indispensable party to this bill. But seeing that complainant is seeking to set up a debt against the late firm, can it be said that the surviving partner has no interest in the subject matter, no connection with it, no privity with the representative of the deceased partner ? Has he no interest in the alleged partial payments of this joint debt? The reverse is too plain for argument.
3rd. But, thirdly, the demurrer is sought to be maintained on the ground that the bill is multifarious, in that it includes two separate and distinct causes of action. Not so, unless it can be established that a debt, and a partial payment of it, are matters so separate and distinct that they cannot be inquired of in the same action.
The two propositions undertaken to be established by the complainant are, 1st, that Scott & Jones owed him a debt; and 2d, that Scott made partial payment on that debt, and took, by common consent, the notes in suit at law as evidence of the payment. To prove the payment, I apprehend it is necessary, first, to establish the debt. Were there but one defendant, could there be any question on this point ?
The fourth and last ground of demurrer, is the general one that there is no equity in the bill. Enough has, perhaps, been said to dispose of this ground; but we may add, that the consequence of sustaining this demurrer would be,