Dennis and another vs. Green.

power to impose conditions.. The plaintiff, Lowe, had the right to stand upon his legal rights. They were not doubtful. The Court had no power to set aside a valid, subsisting lien. The law gave it, and there was no discretion in the Court to put the enforcement of it, upon any terms, much less such as are onerous and might prove the occasion of actual loss to the plaintiff. · Let the judgment be reversed.

No. 34. ISAAC DENNIS, Jr. and another, plaintiff's in error, vs. G. J. GREEN, administrator, &c. defendant.

[1.] The Court will dissolve an injunction, on the coming in of the answer > of the defendant, who alone is interested, negativing all the facts and circumstances charged in the bill, and upon which its equity is based, though all the defendants have not answered.

[2] Where the answer of the defendant is made, and sworn to, before his death, it may be used, on a motion to dissolve the injunction, though filed in Court subsequently.

[3.] A bill may proceed, without making the representatives of à mere formal party, parties to the proceeding.*

[4.] So, if the deceased was a necessary party to the final decree to be rendered, but not interested in the injunction, a motion to dissolve the injunetion need not be postponed until the representatives are made parties.

In Equity, in Crawford Superior Court, before Judge FLOYD, August Term, 1849.

G. J. Green, as administrator of D. M. Causey, filed a bill in Equity, against Isaac Dennis, Sr. and Isaac Dennis, Jr. alleging, among other things, that Causey and one Jeremiah Dennis, had been partners in the business of selling merchandize, and unfortunate therein; that Causey advanced large sums to pay off their indebtedness; that, having no funds to pay a debt to J. W. & R. Levette, their joint note was given, which note was also signed *See Smith & Shorter vs. Mitchell, 6 Ga. Rep. 469.-[Rep.]

Dennis and another vs. Green.

by Isaac Dennis, Sr. the father of Jeremiah Dennis, who agreed, at the time, to pay one half of it, as a donation to his son; that, subsequently, suit was commenced on this note, and judgment obtained against Causey, as surviving partner, and, also, against Isaac Dennis, Sr.; that Jeremiah Dennis died, pending the suit, and administration on his estate was granted to Isaac Dennis, Sr. and Isaac Dennis, Jr. who took possession of the assets; that the administrators agreed and promised Causey to pay off this judg ment, obtained against him as surviving partner, with the assets of the estate, and to pay to Causey the amount due him for advancements for the firm. The bill charged that Isaac Dennis, Jr. had paid off this judgment, but, fraudulently combining with his father, took a transfer to himself, for the purpose of pressing the same against Green's intestate, Causey, who had then died; and also, for the purpose of relieving Isaac Dennis, Sr. from the payment of one-half of the same, according to his agreement and promise. The bill farther charged, that the administrators had wasted the assets, in pretending to pay accounts-among others, a large account to Isaac Dennis, Sr.; that they were fraudulently seeking to make the estate of Causey pay the judgment before stated, and had caused the same to be levied on property belonging to his estate, while there was a sufficiency of assets in their own hands to pay it. There were several other allegations of fraud, and a prayer for an injunction and relief.

The answers of the defendants were drawn and sworn to 15th January, 1849, and filed in the Clerk's office on 5th February, . 1849. Previous to the filing of the answer, Isaac Dennis, Sr. died. At the February Term, 1849, defendants' solicitor moved to dissolve the injunction, because the equity, if any, in the bill, was sworn off by the answers. The death of Dennis, Sr. being suggested of record, the Court made no decision at that term, and at August Term, 1849, refused to dissolve the injunction, on the ground, that Isaac Dennis, Sr. was a necessary party to this bill, and complainant was entitled to his answer; that the Court could not consider or notice, judicially, the answer filed after the death of Dennis; and the Court could not entertain a motion to dissolve the injunction, until the representatives of Isaac Dennis, Sr. were made parties."

Which decision of the Court is assigned for error.

Dennis and another vs. Green.

HUNTER, for plaintiff in error.

G. J. GREEN, STRONG and HALL, for defendant in error.

By the Court-LUMPKIN, J. delivering the opinion.

In February, 1846, J. W. & R. Levette obtained a judgment against one David M. Causey, upon which an execution issued, and was transferred, by the plaintiffs, to Isaac Dennis, Junior, in the month of May thereafter, and was levied by the assignee, in 1848, on a house and lot in Knoxville. Causey, the defendant, being dead, Gilben J. Green, his administrator, filed an injunction bill against Isaac Dennis, Junior, and Isaac Dennis, Senior-both individually, and as administrators of Jeremiah Dennis, deceased, and Joel B. Morgan, Deputy Sheriff. The bill was made returnable to the February Term, 1849, of the Superior Court of Crawford County. Intermediate the service and appearance term, Isaac Dennis, Senior, departed this life-his answer having been previously made and sworn to, and filed in Court, subsequent to his death,

[1.] Application was made to dissolve the injunction, upon the ground, that the answers had fully denied all the equity in the bill; but this motion was refused by the Chancellor, for the reason, that Isaac Dennis, Senior, was a necessary party to the bill; that he could not judicially consider his answer, having been filed after his death; and that he would not entertain the motion to dissolve the injunction, until the representatives of Isaac Dennis, Senior, were made parties defendants to the bill.

Was the Court right in refusing to entertain the motion to dis-solve the injunction ?

It will be observed, that the execution which was enjoined, was the exclusive property of Isaac Dennis, Junior, who held it, and was seeking to enforce it, by virtue of an assignment to him, individually, from the Levettes, the original plaintiffs. Conceding, then, what is assumed by the Court below to be true, that Isaac Dennis, Senior, was a necessary party to the case made by * the bill, does it follow, that the assignee of the fi. fa. whose legal rights were restrained, was compelled to wait until the estate of old man Dennis was represented, before he could take steps to get rid of the injunction? It seems to me, that, to hold up the

Dennis and another vs. Green.

injunction on that account-when, if the representatives were made a party, it is apparent that the interest of their testator or intestate could, in no wise, be affected by the interlocutory decree respecting the injunction-would be a great perversion of justice.

The principle seems to be well established, that whenever the party against whom the injunction operates, fully answers the bill, denying the equity, it is competent for such party to move, at any time, for à dissolution of the injunction, without waiting for the answers of the other defendants. 3 Davis' Ch. Plead. & Pr. 1824. Newland's Ch. 98. Joseph vs. Doubleday, 1 Ves: & Beam. 497, '8. Glascott vs. The Copper Mines Company, 11 Sim. 314. Breedlove vs. Stimp, 3 Yerg. 257. Goodwyn vs. State Bank, 4 Dessauss. R. 389,

; <[2.] But here, the answer of Isaac Dennis, Senior, was made and sworn to, before he died. It was called for by the complainant, to prove the community of interest between the defendants. Being dead, he can never get any other or further an swer. For what purpose, then, should this injunction be continued against Isaac Dennis, Junior? It could avail nothing, to postpone the hearing of this application, in order to make the representatives of Isaac Dennis, Senior, a party. Suppose, being appointed and qualified, they should attempt to withhold from the Court the answer made by the deceased-would not the Chancellor force them to file it, if it had not already been done? Would not the complainant be entitled to the full benefit of the admissions which it contains, as to the fraudulent combination between the father and the son? Equally competent, we apprehend, is it, for Isaac Dennis, Junior, to use this answer, to get rid of the injunction, provided it negatives all the facts and circumstances charged in the bill, in order to obtain the injunction. - [3.] But we do not rest our judgment mainly upon this ground, but upon the other view, namely, that as to the injunction, Isaac Dennis, Senior, is a mere formal party.

[4.] Where all the defendants are interested in the injunction, as well as the final decree to be rendered, there is a diversity of authority to be found in the books, as to whether or not all the defendants must answer, before the dissolution of the injunction can be granted. 2 Eq. Cas. Ab. 2, marg. note (a). In our judg ment, however, this is not such a case.

Judgment reversed.

Settle vs. Alison and others.

No. 35.-JOHN M. SETTLE, plaintiff in error, vs. HENRY L. ALISON and wife and others, defendants.

[1.] Where it appeared that by the law and usage of the Courts in the State of Virginia, the Clerk's certificate of the County Court, that a will was duly admitted to probate and record, would be sufficient evidence of that fact in that State: Held, that the same faith and credit should be given to the records and judicial proceedings of the State of Virginia, when offered in evidence in the Courts of this State, as they would have received in the Courts of the State from whence the same were taken.

[2.]. Where the record and judicial proceedings of the County Court of Mecklenburg County, in the State of Virginia, were offered in evidence, under the Act of Congress, Abram Keen certified that he was the presiding Magistrate of Mecklenburg County; Held, that the presiding Magistrate should have certified, that he was the presiding Magistrate of the County Court of Mecklenburg County, from whence the record was taken.

[3.] When a subscribing witness to a written instrument, resides beyond the jurisdiction of the Court, the regular mode to prove its execution, is to prove the handwriting of the witness; but where a receipt or other written instrument, is more than thirty years old, its execution need not be proved to admit it in evidence, although the subscribing witness may be living. [4] The declarations of a vendor, who has parted with the title to property, are illegal, when sought to be given in evidence against his vendee, unless it clearly appears he was the owner of, or in possession of the property, at the time the declarations were made. ·

[5.] When the evidence is conflicting, in regard to the main point in controversy between the plaintiffs and defendant, for the admission of illegal evidence by the Court, which might, and probably did, decide the question in favor of the plaintiffs, in the mind of the Jury, a new trial will be granted. [6.] In an action of trover, for the recovery of slaves, in which there are several plaintiffs of different ages, and the Statute of Limitations is relied on, it is not error for the Court to charge the Jury, that they can find a verdiet in favor of those who are not barred by the Statute, and against those who are barred; and the verdict of the Jury should specify who of the plaintiffs they find for, and against whom they find; otherwise, the verdict would be imperfect' in not finding all the issues submitted. [7.] When a Jury have rendered an imperfect verdict, by not finding all the issues submitted to them; as, where they found a verdict in an action of trover, in favor of only four of the plaintiffs, when there were eight, without finding either for or against the other four: Held, that after the verdict had been received and recorded, and the Jury discharged from the farther consideration of the cause, that it was error in the Court, after the expira tion of four days, to re-assemble the Jury and amend the verdict according to what the Jury then stated it was their intention to find-such intention not appearing on the face of the verdict.