Lapas attēli
PDF
ePub

of the city, and will be found reported in 11 Wall., 96, 20 L. ed. 155.

ners, to represent him as his counsel; and that they advised him to file the bill, and ask for Day, the present appellee, did not join the equitable relief, and claim a pro rata contribuother defendants in the defense set up by tion among the stockholders; that he did not them, but filed a separate answer and a cross-see the answer and cross-bill which they prebill, in which he admitted that he had sub- pared, and had no knowledge of the allegations scribed stock in the railroad company to the contained in them; that he was informed that amount of $36,100, and that $3,500 thereof re- the court had acted on his answer and crossmained unpaid. He then stated that the other bill, and that he was out of court; that he defendants, including the City of New Albany, relied principally on Mr. Collins, as Day was were subscribers to a large amount, which he young and inexperienced; but that he never set forth in a list; and he claimed that they consulted Collins but once, though he saw him had not paid as much in proportion on their a second time; that he had no business in the subscription as he had paid on his; and prayed case that needed any further explanation at that they might be compelled to contribute un- the time; that Collins was sick much of the til they had paid an equal proportion to him- time, and died in May, 1869, during the pendself; in which case he alleged there would be ency of the suit; that he saw his attorney, Day, money due to him, instead of money due from occasionally after the suit was brought, and him. His cross-bill, being demurred to, was dis- consulted with him and paid his expenses to missed; and the decree against him was made Indianapolis, when he went there to file the on the admissions of his answer, charging him answer and cross-bill. This was all the matewith the $3,500 admitted to be unpaid, with rial evidence in the case. The circuit court set interest thereon. aside the decree against Day, and the case is before us on an appeal from this decision.

In January, 1870, the present bill of review was filed, to have this decree set aside as to The complainant failed utterly, we think, to the appellee, Ezekiel R. Day. In this bill, make out a case of fraud, mistake or want of which, as before noted, was a bill partly orig- authority on the part of his solicitors and inal and partly in review, the complainant counsel in filing the pleadings in the original states, briefly, the proceedings in the former suit, and taking the ground they did on his suit; admits the filing of the answer and cross-behalf. Of course fraud is not charged; but bill before referred to, but alleges that it was the complainant relied on the fact that he filed by his attorney, and was never seen or never saw the answer or cross-bill, and did not read or sworn to by himself; and that it did know their contents. This is no ground for alnot set up. truly, the facts, or the true grounds lowing him to repudiate them now. It is not of his defense. He further states that the alleged that he would have placed his defense truth was, that his stock was taken by the on any different ground had the answer and City of New Albany, in the same manner as cross-bill been read by him. Indeed, they were that of the other defendants, except certain drawn in pursuance of the advice received shares which he subscribed, payable in lands; from his counsel and acquiesced in by him. and that he was not indebted to the railroad His not having sworn to his answer, or even company for any unpaid portion of stock sub-read it, is no excuse. It was his duty to have scribed by him. He also insisted, as a ground of review, that the decree in the former suit was erroneous, and should be set aside for three reasons specified in the bill of review:

First. That Floyd County Circuit Court, in which the judgment had been rendered, had exclusive jurisdiction of the matter.

Second. That the original bill did not set out sufficient facts to show an indebtedness on his part.

Third. That the complainants were guilty of gross laches and negligence in seeking equitable relief, having lain by and slept on their right to equitable relief, if they had any, for more than nine years.

|

known its contents, if not to have verified it. If his counsel failed to make as good a defense for him as they might have done, it was his misfortune and cannot be rectified after the passing of the decree. Litigation would never come to an end if parties were permitted thus to shift their entire ground of attack or defense, after finding where the pinch of the cause lay. They must be estopped by the record, unless they can show that they were the victims of fraud or mistake.

Taking the cause, then, as it stood when the original decree was rendered, does the bill of review show any error for which it can be reversed?

The appellants answered this bill, insisting It is to be remembered, that on a bill of re63*1 upon the regularity and conclusiveness view the proofs cannot be considered. [*65 of the proceeding, and denying that Day had 2 Dan. Ch. Pr., 1631, 3d ed. If the decree is any defense to the original suit, or that he contrary to these, remedy must be sought by ever assigned his stock to the City of New appeal. Story, Eq. Pl., sec. 407. We are conAlbany. To this answer a general replication fined, then, to an examination of the pleadings, was put in. Day was, himself, examined as a proceedings and decree, and the pleading of witness, and testified to the transfer of his Day himself is to have controlling effect so stock to the city, except as stated in his bill, far as it contains admissions against his own and to the payment of all dues thereon. He interest. It is apparent that the decree of the also testified as to his employment of an at-circuit court on the bill of review was based torney to represent him in the original suit. on the answers and evidence adduced by the and to the manner in which his answer and other defendants, which tended to show that cross-bill were filed. His testimony on this point was to the effect, that when the suit was instituted, he employed James Collins and his own nephew, Addison Day, who were part

the appellee's case was similar to theirs. Day's own answer in the case was entirely disregarded. But is it possible to ignore it? Day was not necessarily in the same category with

the other defendants. All had an equal opportunity to surrender their subscriptions to the city, and it was claimed by the other defendants in their answers, and admitted and shown, by a stipulation filed in the cause, that they did surrender their subscriptions to the city, and that the city assumed them. But they do not state, and it would not be evidence for Day if they did, that Day surrendered his subscription. On the contrary, in his own answer, which is evidence against him, he clearly admits that he was a large subscriber to the stock, and that there was due on his subscription the amount for which the decree was rendered against him. There is nothing in the bill nor in the report of the master nor in any other part of the record, unless it be the answers of the other defendants, inconsistent with this admission of Day himself. On the contrary, the charges of the bill and the report of the master are in entire conformity with it. As the record stands, no other decree could have been made than that which was made, unless the other errors assigned have some ground to stand on.

Those errors are not relied on by the court below. As to the first, namely: that the Floyd County Circuit Court had exclusive jurisdiction of the case, it is hardly necessary to remark upon it. Surely, a creditor's bill may be filed in a different court from that in which the creditor obtains his judgment; for, other wise. none could have been filed when 66*] *courts of law and equity were separate courts, as they still are in some of the States. The second was clearly groundless. The bill stated the ground of the claim against Day, and the answer admitted it, and supplied the particulars if they were not sufficiently specified in the bill.

to the rule that the proofs cannot be examined on a bill of review, and his answer is: "I think not."

In this, we think, the court erred. We think the rule to be well established, and a wholesome one, that (as before stated) the proofs cannot be looked into on a bill of review. This was so expressly held in Whiting v. Bk., 13 Pet., 6. It is true that in our practice the final decree does not contain a summary of the facts as it did in the English practice which summary was examinable on a bill of review; but to countervail this absence of statement in the decree, we have adopted the practice of looking back of the decree into the whole record of the pleadings and proceedings, including orders, master's report, etc., together constituting what is generally regarded as [*67 the record in the cause, and necessary to be examined in order to a proper understanding of the decree itself. This makes a record similar to that of a common law action, the decree being the judgment of the law upon the allegations of the parties, and the conclusion which the court deduces from the proofs. But the conclusions of fact deduced from the proofs are not spread upon the record in extenso, unless through the medium of a report made by a master or commissioner.

The 86th Rule in equity, adopted by this court, has abolished the recital of the pleadings and proceedings in the decree, and has prescribed the form in which it shall be couched, as follows: "This cause came on to be heard at this term, and was argued by counsel; and thereupon, in consideration thereof it was ordered, adjudged and decreed, as follows, viz.:” here inserting the decree or order. The decree, it is true, may proceed to state conclusions of fact as well as of law, and often does so for the purpose of rendering the judgment of the court more clear and specific.

The record thus made up constitutes the basis of examination on a bill of review, but it never contains the proofs adduced in the cause.

An examination of the record in this case does not, in our judgment, afford any ground for setting aside the decree made against Ezekiel R. Day in the original cause.

The third error assigned was that the complainants had been guilty of gross laches and negligence in preferring their claim, having waited nine years after the return of their execution unsatisfied before filing their bill. This might have been a proper defense to make to the original bill; but it was not the defense which the appellee made. He did not put himself on that ground. He admitted his liability and prayed that the other defendants might contribute their just share, which he insisted would relieve him. How could the court under such a defense as this have dismissed the bill for laches and delay? A decree has to be founded on the allegata as well as Mr. Chief Justice Waite did not sit on probata of the case. There is nothing in the the argument of this cause, and took no part allegata, which alone are before us, to justify in the decision.

The decree of the Circuit Court must be reversed, with directions to dismiss the bill. Dissenting, Mr. Justice Davis.

*JOHN M. BERNHISEL, Appt., [*170

v.

Wright, a Bankrupt.

(See S. C., 22 Wall., 170-179.)

Usury, effect of-in second security when first valid recovery on original debt.

a different decree from that which was made. The court below evidently relied on its knowledge and estimation of the proofs in the cause. The learned judge in his opinion, in DANIEL R. FIRMAN, Assignee of A. R. summing up his views of the case, says so, in so many words: "When this court can see by the answer of the association subscribers and the evidence in the original case that there was no just claim on the part of the railroad company against the Days; that they had been released from such claim if any existed, years before the creditor's bill was filed, and even before the judgment was recovered on which it 64*] was founded, and that the court dismissed the bill as to persons equally liable with them, does such a rule apply?" Referring

1. In a State, where there is a statute making usury penal, but not declaring the contract void, a usurious bond and mortgage may be enforced for the amount actually due.

2. If a security founded upon a prior one be fatally tainted with usury, and the prior one were free from it, but given up and canceled, and the

NOTE. Usury in renewal contract as affecting original agreement-see note, 33 L.R.A. 628

[ocr errors]

latter one thereafter be adjudged void, the prior | priate evidence, is neither within the letter one will be revived, and may be enforced as if the nor spirit of this section. latter one had not been given.

3. A vendor's lien may be revived under the same circumstances. In the same suit, wherein there is a failure to recover upon the void security, the

be enforced.

valid one, on account of which it was given, may [No. 180.]

Argued Feb. 5, 1875. Decided Feb. 15, 1875. PPEAL from the Supreme Court of the Territory of Utah.

AP

This was an action brought in the court below sitting in bankruptcy, by the appellant, upon certain notes and a mortgage executed to him by the bankrupt. Defendant answered, and also filed a cross-bill, setting up that the securities of the plaintiff were void as in fraud of the Bankrupt Act. The court below entered a decree in favor of the defendant, and the plaintiff appealed to this court.

The facts are stated in the opinion. Messrs. Snow & Hoge, for appellant: In 1866, the date of the notes of Wright to Bernhisel and to Pond & Co., there was no law in Utah on the subject of interest. It was, therefore, left to the agreement of the parties and to the rule laid down in 1 Am. Lead. Cas., 5th ed., p. 514; and the rule in Young v. Godbe, 15 Wall., 565, 21 L. ed. 251.

After these notes matured, the Legislature of Utah, at its session in 1869 (see Laws of that year, p. 17, ch. 19), enacted, "That it shall be lawful to take ten per cent. interest per annum, when the amount of interest has not been specified or agreed upon;" leaving, as before this law was passed, the right of the parties to agree upon the rate of interest; but when not agreed upon, the right of the obligee to demand ten per cent. This, however, could not be construed retrospectively, and therefore could not apply to past transactions.

Messrs. C. M. Hawley and T. Marshall, for appellee:

bankruptcy, his said two new notes and mortThe appellant by his proving in the court of gage, given to him and bearing date Apr. 26, 1872, under said new arrangement as aforesaid, and having thereby elected to stand upon this new mortgage lien, and having commenced this suit in equity to enforce this particular mortgage lien against the rights and interests of the other creditors, he is precluded from claiming under the original canceled and discharged notes and mortgages.

Wiley v. Boyd, 38 Ala., 625; In re Wynne, see 4 Bk. Reg., 5, 6; In re Jordon, 9 Bk. Reg., 416; see, case of Starr v. Ellis, 6 Johns. Ch., 395; Hubbard v. Jasinski, 46 Ill., 160; Woollen v. Hillen, 9 Gil. Md., 185.

It was the voluntary act of increasing said debt and mortgage lien, under the circumstances and facts that existed at the time, and the reception of the same by appellant as shown by the pleadings and evidence, that renders the appellant and the said debtor obnoxious to the charge of fraud against both the Bankrupt Law and the other creditors, and therefore the said notes and mortgages are absolutely void.

The extraordinary measures the appellant took to induce his debtor to largely increase the amount of his claim against his debtor without consideration, and then induce him to secure the same by new notes and mortgage, though the debtor voluntarily gave him the preference, as the evidence clearly. shows he did do, renders both notes and mortgage absolutely void, especially as to the other creditors.

See, Kerr, Fraud and M., 195; Garth v. Cotton, 1 Dick., 217; Young v. Waud, 8 Exch., 234.

Apr. 26, 1872, Bernhisel, had a bona fide existing lien on this real estate for more than "The assignment, by a man, of the whole of its actual value, computing the interest at the his estate and effects, or the whole with a colrate prescribed by the Utah law and thus mak- orable exception of part only, under such ciring the law retrospective, and computing inter-cumstances as necessarily to defeat or delay est according to the custom of Utah, he had a his creditors, is a fraud within the meaning lien of over $10,000. This lien, unless it was of those laws, though there be no actual fraud." lost by consolidating the three claims in one, Young v. Waud, 8 Exch., 230; Hooper v. is protected by section 20 of the Bankrupt Act. Smith, 1 W. Bl., 441; Stanger v. Wilkins, 19 The court below held that this lien was dis- Beav., 626. charged by the act of Bernhisel, and that the transaction was fraudulent according to the terms of section 35 of the Bankrupt Act.

This section does not prevent an insolvent person from buying, selling and making profit or suffering loss as the business may turn out.

Bump, Fraud. Assign., pp. 61-63.

And these transactions can only be avoided when the payment, pledge, assignment or conveyance is made in fraud of the Act. In fraud of the Act is essential. How can a payment, a pledge, an assignment or a conveyance be made in fraud of the Act, when the payee, assignee, pledgee or transferee has a vested right to have the property or its avails applied to

his use.

Again; the act must be done with a view to give a preference to any creditor or person having a claim against him. Simply permit ting a creditor or a person having a claim against him, who has a preference, to retain such preference, and recognizing it by appro

[ocr errors]

Mr. Justice Swayne delivered the opinion of the court:

This is an appeal in equity from the decree of the Supreme Court of the Territory of Utah.

The bona fides of the original indebtedness of Wright to Bernhisel, and the validity of the several mortgages by which that indebtedness was secured, are not questioned. The indebtedness consisted, (1) Of a note of Wright to Bernhisel for $2,450, dated March 26, 1866, and payable on or before the 26th of March, 1867, with interest at the rate of twenty-five per cent. per annum, and secured by a mortgage upon a half lot therein described, situate in Salt Lake City. (2) Another note of Wright to Pond & Co., for $951, dated May 9, 1866, payable six months after date, secured by a mortgage upon the same premises and transferred to Bernhisel, and (3) A note of Wright to Bernhisel dated May 26, 1866 for $950, payable with interest at the rate of

It is insisted by Firman, the assignee, that these several notes and mortgages were satisfied, and finally extinguished, by a transaction which involved the giving of two subsequent notes, secured by mortgage upon the same premises, and that the latter securities were all avoided by the 35th section of the Bankrupt Law.

twenty-five per cent. per annum, on or before maturity down to the same period. Brewster the 26th of May, 1867, and secured by a mort- v. Wakefield, 22 How., 127, 16 L. ed. 303; gage upon the half lot covered by the preceding Young v. Godbe, 15 Wall., 562, 21 L. ed. 250. mortgages. "An Act Relative to Interest," of February 14, 1868, and the Act upon the same subject of 1869, both passed by the Territorial Legislature of Utah. The implication of the first Act was exactly the same as the affirmation of the second. The latter Act was, therefore, unnecessary. U. S. v. Babbit, 1 Black, 61, 17 L. ed. 96. Both these Acts fix the rate at ten per cent. where no rate has been agreed upon. What it was in such cases, prior to the taking effect of the first Act, we are not advised. *For the amount due upon the two [*177 original notes to Bernhisel and upon the one to Pond, transferred to Bernhisel, the two later notes, with the rate of interest stipulated in them, and the mortgages securing them, were, aside from the objection arising under the Bankrupt Law, unquestionably valid securities. Wearse v. Peirce, 24 Pick., 141; Abbe v. Newton, 19 Conn., 20; Rood v. Winslow, 2 Doug. (Mich.), 68; Mackey v. Brownfield, 13 Serg. & R., 239; U. S. v. Bradley, 10 Pet., 343. In Pennsylvania, where there is a statute making usury penal, but not declaring the contract void, a usurious bond and mortgage may be enforced for the amount actually due. Wycoff v. Longhead, 2 Dall., 92; Turner v. Calvert, 12 Serg. & R., 46.

These are the questions upon which the parties are at issue, and these the subjects to be examined. On the 1st of August, 1871, nothing had been paid on account of the two notes of Wright to Bernhisel. Bernhisel took the note of Wright of that date for $4,440.81, payable one year after date, with interest at the rate of ten per cent. per annum. This note was for the arrears of interest alleged to be due. On the 26th of April, 1872, Bernhisel bought the note and mortgage of Wright to Pond & Co., and paid for it $969.80. On the same day he and Wright computed the amount due from Wright upon all these liabilities, and made it $9,621.74. For this sum Wright gave Bernhisel two notes, both dated August 1, 1871, and secured by a mortgage upon the same property as the three prior mortgages. One of the notes is for $4,219.81, payable on the first of June following, with interest from the first of May following, at the rate of twenty-five per cent. per annum, to be paid monthly until the note was paid.

The other note was for $5,401.93, payable at the same time as the smaller note, and with interest after the same time specified in that note, at the rate of ten per cent. per annum, to be paid monthly until the payment of the principal. Upon each of the four original notes was written "Settled by new arrangement and notes April 26, 1872," and they were all surrendered to Wright. The several mortgages were also duly canceled of record by Bernhisel.

It appears by the deposition of Bernhisel, that he was asked at what rate the interest, upon the several notes of Wright which he held, was computed in the settlement between them, when the notes and mortgages of the 26th of April, 1872, were given. His answer was, "The principal at twenty-five per cent. per annum, and the interest which had accrued up to the first of August, 1871, at the rate of ten per cent. per annum, to the date of the notes of April 26, 1872, there being no interest computed on the Pond & Co. note, in the settlement of 1872, the same being put in the at $969.80, just what I actually paid, which makes up the amounts of the two notes of April 26th, 1872."

[ocr errors]

The bases of the calculation were wrong, and the result was the aggregate amount of the two notes of that date, which was a sum much too large.

Bernhisel was then entitled:

(1) To the face of the two original notes to him, with twenty-five per cent. interest upon each for one year, and the lawful rate of interest of the Territory where no rate is specified down to the date of the settlement; and, (2) To the face of the note to Pond & Co. with the like lawful rate of interest after its

Within less than four months after the 26th of April, 1872, Wright was adjudged a bankrupt. Thereafter Firman, the appellee, was chosen the assignee of his estate.

The mortgaged premises have been sold under an interlocutory decree, for $7,300. The proceeds of the sale await the result of this litigation.

In order to bring a security for a debt within the provision of the Bankrupt Law, relied upon by the appellee, it is necessary that all the prescribed conditions should concur.

If either element of the combination be wanting, there is no infringement of the law. Among them, and the cardinal one, is that the security should be given by the bankrupt within the time specified, "With the view of giving a preference to a creditor or person having a claim against him." Are the securities here in question liable to this objection? The facts must give the answer, and they are undisputed. The several securities upon which the notes and mortgage attacked were founded and for which the later ones were substituted, were given not only more than four months, but more than five years before the filing of the petition in bankruptcy. The later ones were for the same liabilities consolidated, and for nothing else. The mortgage was upon the same property as the prior mortgage, and none other. They were intended to be for the amount due upon the former securities. They were for too much, as we now adjudge the law of Utah to be. In the view of equity they are as if they had been taken for the proper amount. The excess is a nullity. It has no efficacy or validity for any purpose. The bankrupt's estate, to be administered by his assignee, is just what it would have been if the new notes and mortgage had never ex- [*178 isted. The rights of other creditors were in nowise affected by the substitution. The mort gaged premises, when sold, yielded a sum less

than sufficient to pay the amount due on the original securities. It cannot be justly said that any property was withdrawn or any preference given within the four months. The withdrawal and the preference were years before. The new securities were only the recognition and continuity of those which preceded them. The change was one of form rather than of substance. It is as much the purpose of the law to sustain all valid claims arising beyond the time specified as it is to strike down the frauds within that time which it denounces. The assignee took the estate subject to the rights, legal and equitable, of all other parties. Gibson v. Warden, 14 Wall., 244, 20 L. ed. 797. Our views in this case are in harmony with those expressed in several recent cases in which we had occasion to consider this section of the Bankrupt Law. Wilson v. Bk., 17 Wall., 473, 21 L. ed. 723; Tiffany v. Savings Inst., 18 Wall., 375, 21 L. ed. 868; Cook v. Tullis, 18 Wall., 332, 21 L. ed. 933. We hold that the section does not affect securities within the category of those before us.

fully set out in the bill There is, therefore,
no obstacle arising from the state of the plead-
ings.
Embarrassment sometimes occurs in such
cases from the attaching of intervening rights.
Here there are none, and as regards the as-
signee there can be none. If the later securi-
ties were void, as insisted by the appellee,
then the appellant would be entitled to relief
in this view of the case.

The decree of the Supreme Court of Utah is reversed and the case will be remanded, with directions to enter a decree in conformity with this opinion.

CATHARINE FRETZ, Survivor, etc., of Isaac
Fretz, Her Husband, Deceased, Appt.,

v.

RALPH STOVER, Exr. of Charles Stover, Deceased; William E. Huxthall and Virginia, His Wife, and James O. Chilton.

(See S. C., 22 Wall., 198–208.) Replication-objection not made in court below -answer to bill of revivor-Confederate money, when not payment-legal currency. 1. Where there is no replication in the record, this objection should have been made in the court below. Not having been made there, it will be con

sidered as having been waived.

2. No formal replication to an answer to a bill of revivor is required to avoid its effect as evidence in the cause. New defenses set up in an answer to a bill of revivor cannot be considered.

There is another ground upon which a judgment for the appellant may well be placed. As before remarked, the new securities were intended to take the place of the prior ones. If the new ones are adjudged invalid, the cancelation and surrender of the prior ones will have been without the shadow of a consideration. If the cancelation and surrender are permitted also to stand, Bernhisel will have 3. An agent living in one of the revolted States lost his debt, without fault on his part and had no right to take. during the late war, Confedcontrary to the intent of both debtor and cred-erate money, or bank-notes secured by Confederate itor in making the change of securities. Bernhisel will be in no better situation than if he had given up the old securities upon being paid in coin or currency which he believed to be good, but which turned out to be counterfeit. Where there is a failure of consideration

and fraud or mistake in such cases, a court of equity will annul the cancelation and revive the securities. Upon being so revived they resume their former efficacy. This is an ordinary exercise of the jurisdiction of such tri179*] bunals. *"It is a rule in equity that an incumbrance shall be kept alive or considered extinguished as shall most advance the justice of the case." Starr v. Ellis, 6 Johns. Ch., 395; Neville v. Demerett, 1 Green, Ch., 336; Barnes v. Camack, 1 Barb., 396; Loomis v. Hudson, 18 Ia., 416; East Ind. Co. v. Donald, 9 Ves., 284; Hore v. Becher, 12 Sim., 465.

The application of this principle occurs most frequently in cases of usury. It is well settled that if a security founded upon a prior one be fatally tainted with that vice, and the prior one were free from it but given up and canceled, and the latter one thereafter be adjudged void, the prior one will be revived, and may be enforced, as if the latter one had not been given. The cases to this effect are very numerous. Parker v. Cousins, 2 Gratt., 389; Bk. v. Joslyn, 37 N. Y., 353; Cook v. Barnes, 36 N. Y., 521; Rice v. Welling, 5 Wend., 595. A vendor's lien may be revived under the same circumstances. Crippen v. Heermance, 9 Paige, 211. In the same suit, wherein there is a failure to recover upon the void security, the valid one, on account of which it was given, may be enforced. Bk. v. Joslyn, supra. In the ease before us, all the notes and mortgages are

bonds, in discharge of a debt due to his principal
4. The debt could only be discharged by payment
in the legal currency of the United States.
[No. 164.]

who lived in a loyal State.

Argued Feb. 2, 1875.

Decided Feb. 15, 1875.

APPEAL from the Circuit Court of the Unitginia.

ed States for the Eastern District of Vir

The original bill in this case was filed in the court below by Isaac Fretz against Charles Stover, William E. Huxthall and Virginia, his wife, late Virginia Chilton, and James O. Chilton, for the purpose of setting up a bond and deed of trust that were alleged by the defendants to have been satisfied several years previous to the filing of the bill. Subsequently the bill was amended by adding the wife of the complainant as a party. Charles Stover having died, the action was revived against Ralph Stover, his executor. The court below dismissed the bill and the complainants appealed to this court. Subsequent to the appeal, Fretz, the original complainant, died.

For a long time previous to Feb. 25, 1861, suits had been_pending in the courts of Virginia between Fretz and Abraham Stover, the father of Charles Stover, one of the original defendants, during the lifetime of Abraham, and after his death with Charles Stover, as the executor and sole devisee and legatee of said Abraham Stover. About the latter date a settlement was reached, as a part of which Charles Stover executed a bond binding himself and his heirs to pay to Fretz and his

NOTE. Contracts payable in Confederate notes; tender of see note to Thorington v. Smith, 19 L. ed. U. S. 361.

« iepriekšējāTurpināt »