17 Ga. 177 | Ga. | 1855
By the Court.
delivering the opinion.
It is demurred to on several grounds. It is denied that a Court of Equity has jurisdiction over a bill for the specific performance of a contract, relative to chattels. And ordinarily,
But whatever imperfection may exist in this respect, there is no want of power in the Courts to maintain this bill, provided it was properly framed- The bill is not brought to enforce a contract of sale respecting chattels, but to compel the defendant to execute the indemnity which he promised to the complainants, to induce them to become his sureties. No satisfaction could be made for the failure to perform such an undertaking, especially by a defendant who is, as alleged by the bill, “ in sinking circumstances,” and against whom judgments may be previously obtained by others. In which event, the remedy at Law would prove to be wholly unavailing.
Nor is it any answer against the equity jurisdiction, that the complainant may attach or obtain a ne exeat. Did the complainants go into Court upon general principles of Equity, it would be competent to show that they had an adequate and ample Common Law remedy. But not so when they pray the' specific performance of a contract.
This bill, however, is deficient in two particulars. Eirst. In not stating what books of account or evidences of debt were to be turned over. If the complainants were unable to specify these dioses in action with minuteness, for want of access to., them, they should have charged this fact, by way of excuse for their want of particularity, and have called upon the defendant
But again, the notes for which the complainants became surety are, upon their face, the individual debts of Wm. D. Shockley. Prima facie, he nad no right to pledge the partnership effects for their payment, or to secure those who were bound for him. True, the bill shows that these notes were given for the partnership debt of Shockley & Wooding, to P. McLaren & Co.; still, it should have been distinctly averred that these notes, although made by Shockley alone, were nevertheless the notes of the firm. '
If the bill be amended in these particulars and supported by satisfactory proof, the complainants will be entitled to the redress which they seek.