Jordan, administratrix, &c. vs. Jordan et al.

part of the bill, it deprives the bill of all the equity which it has in it, by rendering the bill multifarious.

As to the first reason. As long as Anthony R. Thornton is himself solvent, the creditors of the estate he represents cannot come to loss by any mal-administration of the estate, on his part; and this whether the estate, itself, is solvent or insolFor any mal-administration he will be personally liable to those creditors; and being solvent, he will be able to make good any personal liability. This being so, what principle is there, of Law or Equity, that will justify those creditors to interfere with his administration, by compelling his debtors to pay their debts to them, rather than to him? There is none. Such interference is allowable only when the administrator is personally insolvent, so that it would be dangerous to trust the assets in his hands, or when some similar reason exists. The insolvency of the estate represented by the administrator, is not a similar reason.

As to the second reason. Even if the matter thus proposed to be stated, by way of amendment, contained in itself equity; yet, it is such matter as makes a complete, new and independent case—a case that might well exist in a separate bill-a case which does not need any help from the old bill—a case to which the old bill could render no help. Such matter, if added to the old bill, would make that bill multifarious. This is clear.

Now the question is, would the Court have been warranted in receiving, by way of amendment to the bill, such matter as this-matter making a case that, in itself, had no equity in it -matter that, if added to the old bill, would have rendered that bill multifarious-when the effect of receiving it would have been to force the defendants, Carter and Jordan, to leave their county and come to the plaintiff's county, to defend themselves against all the matters that the bill, with these additions to it, would have come to contain?

In what cases may persons be sued out of the county of their residence? It is a general rule, that all cases, whether at Law or in Equity, over which the Superior or Inferior Court or

Jordan, administratrix, &c. vs. Jordan et al.

Courts have jurisdiction, are to "be tried in the county where in the defendant resides". This rule, as to cases at Law, is the direct command of the Constitution itself; and as to cases in Equity, it is, if not the direct command of the Constitution, of which there is great doubt in my mind, the result of a well settled principle of Law, viz: the principle, that Equity follows the Law. And ought it not, much more, to follow the Constitution? This is the general rule. To this general rule, however, the Constitution has, itself, made exceptions. It excepts the case of joint promissors and joint obligors, of whom some reside in one county and some in another; also, the case of indorsers residing in a different county from that of the maker. And the Constitution makes no other exceptions. Ought Courts of Equity to do what the Constitution has not done? Ought they to make exceptions which the Constitution, although having in mind the subject of exceptions, has not thought fit to make? Ought they to do this in the face of the fact that the expression, "all civil cases" in this command of the Constitution-"all civil cases which shall be tried in the coun-ty wherein the defendant resides", when taken according to its common legal import, includes cases in Equity? I must express my doubt whether they ought or can.

Ought not the case which they should select as an additional exception, to be one in which there should, at least, be some equity against each defendant, and some privity, as between all the defendants? Ought the case to be such, that as to those of the defendants who might reside in the county in which the suit might be brought, it should be a case which would have in it no equity, for the reason, that as to them, there would be an adequate remedy at Law; and as to them and the other defendants-those to be brought out of their counties, it should be a case which, for another reason, would have in it no equity, viz: the reason that, as to all, it would be multifarious? Most certainly it ought not to be. Therefore, Courts of Equity ought not to make the present case an additional exception.

Indeed, if the case were such as not to have in it this ques

Jordan, administratrix, &c. vs. Jordan et al.

tion of jurisdiction, growing out of the fact that the residence of the defendant is in a different county from that in which the suit has been brought, if it were the common case in which all the defendants reside in the county of the suit; still, such matter as that in question, proposed to be added to the bill, could not, according to any rule of Equity with which we are acquainted, be admitted into the bill by way of amendment. How much more, then, is this so, the case being as it is?

The decision in Gilbert vs. Thomas, (3 Kelly, 575,) is a direct authority to show that defendants are not to be brought out of the county of their residence, upon such a case as would be made, if the matter aforesaid were admitted into the bill, by way of amendment.

It was said, by the Counsel for Mrs. Jordan, that these were not the objections to the amendment, presented in argument to the Court below; and it was insisted, that therefore they ought not to be considered by this Court. But the judgment of the Court below is general-is not put on any expressed ground. If any good ground exists for it, ought not this Court, therefore, to presume that to have been the one by which the Court was influenced? Besides, are parties to be restricted in this Court, to the same arguments which they used in the Court below?

The matter aforesaid, then, relating to Anthony R. Thornton, was such as could not properly be allowed to be added to the bill, by way of amendment.

But the amendment containing this matter, was offered as a whole, and was considered as a whole. This part being such as was not allowable, the whole was rendered such as was not allowable.

[2] The refusal of the Court below, therefore, to allow the amendment, was right.

Still, it is not improper, perhaps, to say that there is matter in the proposed amendment, which it would be right to have put in the bill, viz: all that matter which relates to the possession of the negroes in Florida, by Long, and that which relates to what the defendants realized out of other property

Jordan, administrutrix, &c. vs. Jordan et al.

than the lands and negroes in Hall the negroes in Florida, and the lands in Baker. These are proper matters for discovery, and would be in harmony with what is already in the bill; and doubtless the Court, on a proper application, would allow them to be added to the bill.

A number of exceptions, for insufficiency, were taken to the answer of B. S. Jordan. Of these, three were sustained by the Court, and the rest over-ruled. To as much of the decision as sustained the three, B. S. Jordan excepted; to the other part, or to most of it, Mrs. Jordan excepted.

The same law is applicable to both parts of this decision.

[3.] When is an answer full? What sort of an answer is a plaintiff in Equity entitled to have from a defendant? In Daniel's Chancery Practice it is said, that "The nature of the answer which a plaintiff is entitled to require from each defendant upon the record, is sufficiently shown by the form of words made use of in the bill for requiring an answer, viz: 'that the defendant may, upon his corporal oath, according to the best and utmost of his knowledge, recollection, information and belief, full, true, direct, perfect and sufficient answer make to all and singular the several matters and things hereinbefore contained, and that as fully and particularly as if the same were here again repeated, and he thereunto severally and distinctly interrogated."" (2 Danl. Ch. Pr. 246.)

This is no doubt so. And with this for guide, it becomes a most easy and simple affair to ascertain whether an answer is sufficiently full or not; and guided by this, we find nothing wrong in either part of this decision; and to go into a long detail to show that, would be a mere waste of time.

This judgment, therefore, ought to be affirmed. And this disposes of the case brought up by B. S. Jordan.

[4.] The Court was right in refusing to let the bill be taken as confessed by Carter. His plea-a plea in bar, was still undisposed of. As long as this was so, the plaintiff had no right to call for an answer. The object of the plea was, perhaps, to protect Carter from ever having to answer.

VOL. XVI-58

Collins vs. Johnson.

There is nothing else in the case requiring notice.

The judgments excepted to by both sides ought to be af firmed.

No. 47.-ROBERT COLLINS, plaintiff in error, vs. WILLIAM B
JOHNSON, defendant in error.

[1] A person who is an Attorney at Law and engaged in the defence of a suit, gives to the plaintiff a notice to sue other parties. It is doubtful whether, in doing so, he acts as Attorney at Law or Attorney in fact Held, that he is not, by the Act of 1850, "to regulate the testimony of Attorneys at Law," incompetent to prove the giving of the notice.

[2.] A draft is payable to "A B Cash." and indorsed "A B Cash.": Hild, that prima facie, the indorsement is the indorsement of the bank and not that of A B.

Assumpsit in Bibb Superior Court. Tried before Judge POWERS, November Term, 1854.

This was an action of assumpsit, brought by Johnson against Collins, on the following bill of exchange:

"$5000.

COLUMBUS, December 15th, 1841. Ninety days after sight, pay to the order of John Peabody, Esqr. Cash. Five Thousand Dollars, value received-which

draft from Robert Collins, Thirty Eight Hundred and Seventy