Reese & Heylin v. Bradford, et al.

Having, then, no lien by virtue of their debts merely, the partners may sell, and dispose of the effects of the firm as they please, or as individual debtors may, for a fair and bona fide consideration, and their sales cannot be set aside by the creditors. One partner may sell to his co-partner, and if the sale is fair, it will vest the exclusive title in his co-partner. See Story on Part. 510; Ex parte Ruffin, 6 Vesey, 119, 126; 11 Vesey, 3, 5, 8. If the consideration of the transfer be, that the partner buying, shall pay the debts, this will not, by force of the contract, raise a trust in favor of the creditors, because they (the creditors) derive their lien from, or through the partners; and if the retiring partner parts with his lien, by the terms of the contract, and takes the personal security of the other to pay the debts, it would be difficult to maintain the proposition, that a creditor could assert a lien through the retiring partner, by virtue of an act that extinguished the lien of the partner himself. See Story on Part. 510; Gow on Part. 238 to 241.

By the terms of the deed from Hunter to Thomas, all the interest, right and title of Hunter, passed to Thomas, and no lien was reserved by the terms of the contract in favor of Hunter. But he relied on the personal security of Thomas alone, for the payment of the debts. If this deed is valid, or bona fide, it cuts off the equity of Hunter, and of course the creditors could not assert a lien through Hunter in their favor, if Hunter had none.

The answer of the defendants denies all fraud, as well in the execution of the deed to Thomas, as in the deed to Bradford; and there is no evidence to show, that the deed of the 12th of December, executed by Hunter to Thomas, was without consideration, or fraudulent. Hence, the complainants have failed to show a lien in their favor, and their debts being simple contract debts, not reduced to judgment, they cannot come into this court to ask for their payment. Their remedy is at law, and to that forum they must be remitted.

Reese & Heylin v. Bradford, et al.

This conclusion renders it unnecessary to examine the questions raised on the deed of assignment to Bradford. Let the decree be affirmed.

CHILTON, J., not sitting.

INDEX.

ABATEMENT.

1. A suit against husband and wife, for a tort, does not abate by the death of
the husband, unless the tort was committed by her in his presence, or by
his coercion. Douge v. Pearce,

127

2. A plea in abatement of a pending suit, commenced by attachment, is bad,
unless it alledges that the attachment was levied. The allegation that
the attachment is still pending, is not sufficient. Reynolds v. McClure &
Wilson,

ACCORD AND SATISFACTION.

See Payment, 1.

AMENDMENT.

159

1. The refusal of a court, pending a motion against the sheriff, to permit
him to amend his return, cannot be assigned as error in the judgment up-
on the motion. If the party is prejudiced by the refusal, the remedy is
by mandamus. Caskey, et al. v. Haviland, Risley & Co.
314
2. When upon the settlement of a guardian's account, a balance was found
in his favor, quere, is it necessary to insert in the decree the amount of the
ward's share of the estate. But if the account as recorded furnishes the
means of ascertaining it, it may be amended, if desired, in this court, at
the cost of the plaintiff in error. Lucas & wife v. Hamilton,
447

APPEALS AND CERTIORARI.

1. The time within which an appeal may be taken from a judgment of a jus
tice of the peace, does not begin to run until the judgment has received
the final action and approbation of the justice, whether he grants a new
trial, entertains a motion for that purpose, or improperly sets his judgment
aside, and afterwards reinstates it. Moore v. Jones,

296

2. When upon an appeal from the judgment of a justice of the peace, the
defendant is the appellant, and the amount of the plaintiff's recovery is
diminished, though not entirely defeated, the court may render judgment

APPEALS AND CERTIORARI-CONTINUed.

against either party, as justice may require, and this discretion cannot be revised by an appellate court. Dill v. Phillips, 350 3. Neither appeal or certiorari will lie from the judgment of a justice of the peace to the county court, in a suit founded upon a tort, when the damages claimed do not exceed $20. The "superior" court spoken of in the statute, to which the appeal is to be taken, is the circuit court. Dumas, ASSUMPSIT.

Waddle v. 412

1. If the sheriff discharge an execution, by paying the amount to the plaintiff, the defendant is liable to the sheriff in assumpsit, if he authorised the sheriff to make the payment, or assents to, and adopts it after it is made. A motion by the defendant to quash an alias execution, on the ground of such payment by the sheriff, is such a ratification and adoption of the act of the sheriff, as will make the defendant responsible to him for the amount. Roundtree v. Holloway, 357

Samuels v. Ains

366

2. Money lost upon a horse race, may be recovered back, if the suit is brought within six months from the time the money is paid to the winner. It is not necessary the defendant should plead that more than six months has elapsed before the commencement of the suit, as the right of action depends on the suit being brought within that period. worth, 3. B, an indorser on a bill of exchange, paid the amount to the bank, upon an agreement that the bank should prosecute their claim against T, a subsequent indorser, for the benefit of B, but the agreement was not to appear on the books of the bank. The bank obtained judgment against T, who was ignorant of the payment by B, collected the money, and paid it over to B. Held, that T could recover the amount so paid, of B, in an action of assumpsit. Boyd v. Talliaferro, 424 4. Indebitatus assumpsit will lie upon an executed parol contract; and although it is usual to count upon the special contract, and if it be conditional to aver performance of the condition, the common count is sufficient. Dukes v. Leowie,

457

5. A recovery may be had upon the common counts in assumpsit, of a bank, for the value of notes of the bank proved to have been destroyed, without an affidavit of the loss, previous to the institution of the suit. The Bank of Mobile v. Williams, 544 6. P represented to G, that a tract of land he was about to sell him in the State of Georgia, contained 240 acres, and thereupon conveyed it to him by deed, reciting that the tract contained 240 acres, more or less. The vendor afterwards agreed, that if the plaintiff would go on and take possession, and the land should fall short of 240 acres, he would make good any deficiency: Held, an action of assumpsit will lie for the breach of this contract. Gordon v. Phillips, 565

ATTACHMENT.

1. A plea in abatement of a pending suit, commenced by attachment, is bad,
unless it alledges that the attachment was levied. The allegation that
the attachment is still pending, is not sufficient. Reynolds v. McClure &
Wilson,
159

2. In actions against a sheriff for failing to serve process of garnishment on
a supposed debtor of the defendant in attachment, the judgment recovered
by the plaintiff in the attachment suit, is evidence prima facie of the inju-
ry sustained, without producing the note on which the judgment was
founded. Kirksey v. Prior,
190
3. When an attachment is wrongfully and maliciously sued out, the defend-
ant is not confined to the remedy afforded by the bond, but may sue in
case for the injury he has sustained, before the attachment suit is deter-
mined. Donnell v. Jones, et al.

490
4. The fact that a defendant sued in attachment is insolvent, is proper to be
given in evidence, as a circumstance to be considered by the jury, in as-
certaining the damages, but is no answer to the action, and therefore a
plea relying on it as such, is bad on demurrer. Ib.

490

5. A loss accruing from a forced sale of goods, under an assignment, is not
a natural, or proximate consequence of the issue and levy of an attachment
by the creditor, previous to the making of the assignment by the debtor.
Ib.
491

6. Under the general averments of the declaration, evidence is admissible to
prove the general loss of credit, and mercantile character, but not to prove
the loss of any particular customer. Ib.

See Damages, 4, 5, 6.

See Evidence, 26, 27, 28, 36, 37, 38, 39, 40, 41.

ATTORNEY AT LAW.

491

1. An attorney at law is a competent witness for his client, unless he has an
interest in the suit. McGehee, Adm'r, v. Hansell,

BAILOR AND BAILEE.

17

1. An agreement, by which mares and colts are placed with another to be
fed during the winter, the stock to be liable for the expense of keeping
them, and the bailee to have the power of selling them to pay the expense,
does not merely give the bailee a lien on the stock for the expense of their
keep, but by the terms of the contract, gives him the right to sell so much
as may be necessary to discharge the debt due for their keeping. If he
sell more than sufficient, it is a conversion, and for such excess he is lia-
ble in trover. Whitlock v. Heard,
776
2. A purchase by the bailee himself, at a public sale by auction, is not ab-
solutely void, but voidable at the election of the party, whose title is
sought to be divested by such sale. Ib.

776