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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, subse- ' quent 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 rea. son, 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 dissolve 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 assigument 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 å dissolution of the injunction, without waiting for the answers of the other defendants. 3 Davis' Ch. Plead. of Pr. 1824.“. Newland's Ch. 98. Joseph vs. Doubleday, 1 Ves. of Beam. 497, '8. Glascott vs. The Copper Mines Company, 11 Sim. 314. Breedlore rs. 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

a authority to be found in the books, as to wliether 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 judgment, 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. AĻI.

SON and wife and others, defendants.

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а

[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: Hed, 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 Meck

lenburg 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 thọ

jurisdiction of the Court, the regular mode to prove its exccution, is to provo 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 contro

versy 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 arò

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 expiration of four days, to re-assemble the Jury and amend the verdict according to what the Júry then stated it was their intention to find-such intention not appearing on the face of the verdict.

VOL. VILL, 26

Settle vs. Alison and others.

Trover and conversion, in Monroe Superior Court. - Decision by Judge Floyd, at September Term, 1849.

This action was brought by the children of Reuben M. Rainey and Catharine, his wife, formerly Catharine Cleaton, for a slave, Minerva, (and her issue,) that was sold by said Reuben M. to John M. Settle, alleging that said Minerva did not then belong to said Reuben M.; that they had been only lent to his wife, Catharine, during life, and after her death, by the will of Catharine's father, Thomas Cleaton, of Virginia, were to be equally divided between her children.

Catharine had died before suit. The testimony was voluminous and very conflicting. Thomas Cleaton made the will 25th February, 1818, and died in March after.

The plaintiffs below proved, that Reuben M. Rainey moved from Virginia to Georgia, about 1811 or 1812, and did not then bring with him Minerva ; had just married; that the slave was never out of possession of Thos. Cleaton, after the marriage of Reuben M. Rainey, until the death of Cleaton, in March, 1818; that the executors divided his estate, 16th March, 1818; that on said 16th March, 1818, the executors delivered Minerva to Reuben M. Rainey, (in Virginia,) and took his receipt for her and a boy named Stephen; that Cleaton bad but one slave, named Minerva, at Rainey's marriage, or up to testator's death; that Minerva was then some ten or twelve years old. : One witness supposed the age of Minerva, in 1827, to be fifteen or sixteen years; and that, in 1827 or '28, Rainey owned no other negroes but Minerva and Stephen.

One witness (Rainey's brother) knew Minerva, and states that the first came into the possession of Reuben M. between the spring of 1818 and spring of 1820; that Reubén M. went to Virginia, in the spring of 1818, and that Minerva was not then “in his possession at his residence in Greene County;" that in the early part of the winter of 1820, he was at Rainey's house and then first saw Minerva in his possession; that Reuben M. moved from Green to Jasper, early in 1821.

Eliz. King, (sister of Reuben M.) swore that she knew Reuben M. and Minerva, and knows that he came info possession of Minerya after witness heard of the death of Thomas Cleaton; she came to Georgia with Reuben M. and wife; they brought only

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