Thomason v. Smithson

7 Port. 144 | Ala. | 1838

OSMOND, J.

— The view we take of this case, renders it unnecessary to examine the various questions which have been argued at the bar. Although we are satisfied the complainant below might have so shaped his case, as to have entitled himself to a decree against the plaintiff in error, an examination of the amended bill, by which the plaintiff in error was made a party, will show that the bill was not framed with a view to a decree against him, — nor can one be rendered in his favor against the plaintiff in error, without disregarding the well established rules of chancery practice.

The amended bill, so far from charging the plaintiff in error, with fraudulently, of without authority, collecting the two judgments against him, in favor of Mason, and his daughter Elizabeth, expressly charges, that the plaintiff had full authority from Mason and his daughter, to collect the judgments from him. It is true, the bill also charges that the complainant; believes, that the plaintiff in error has combined with the defendant Mason, and his daughter, to defraud him; but this allegation, so far from charging a want of authority in the plaintiff to collect the judgments, can only be supported, on the supposition that such an authority was given. for a fraudulent purpose. These being the allegations of the bill, proof showing a state of facts, of an entirely different character, which would authorise a decree against a different person, cannot nave any influence in the decision of the cause.

It is true, that under the prayer for general relief, relief may be granted, -different from the specific relief prayed for in the bill. But this principle has never been carried so far, as to authorise a decree against one who has not sought to be charged' by the allegations of the bill.

In Wilkins vs Wilkins, (1 Johns. Ch. R. 111,) it was determined, that if a bill, besides the usual prayer for general relief, contains a prayer for specific relief, the plaintiff is entitled to other specific relief, so far as it is consistent with the case stated in the bill.

No relief can be granted under the general prayer, which is of a nature distinct from, and independent of the special relief prayed for-Franklin vs Osgood, (14 Johns. R. 527;) see also 2 Atkins’ R. 141; 3 Atkins’ R. 132; 2 Vesey, 225; 1 Vesey, 426; 13 Vesey, 114; 2 Atkins’ R. 325.

The bill, in this case, might have been framed in the alternative, asking an injunction against the Masons, if they had authorised the plaintiff in error to collect the money due on the judgments; and against the plaintiff in error, if he had collected it without authority. This would have apprised the-lalter of the claim set up against him, and have enabled him, by filing a cross bill against the Masons, to have adjusted the equity as between them, or to have defended himself in any other mode the exigency of the case demanded.

The proof taken in the cause, authorised a perpetual injunction against the elder Mason, notwithstanding the denial in his answer. The proof of the subscribing witness, to the authority given to the plaintiff in error, by the elder Mason, was sufficient to countervail the denial of the answer. The principle, that an answer can only be overthrown by two witnesses, or by one witness and corroborating circumstances, does not apply to the case, of the proof by one witness, of the execution of a written instrument, which contradicts the answer.

If, therefore, there could be any decree rendered in this court against the plaintiff, it could only be for the amount of the judgment in favor of Elizabeth Mason ; but for the reason already given, no decree can be i$ade against him in this cause. The bill must be dismissed, at the costs of the defendant in this court, and the court below; but without prejudice to any suit which the defendant in error may think proper to prosecute against the plaintiff in error.