Moore v. Wright , 4 Stew. & P. 84 ( 1833 )

Taylor, J.

This suit in. Chancery was instituted by the defendant in error, against the plaintiffs, to injoin a judgment at law. The bill alleges, that the complainant, with James Doswell and John Wright, executed their note, to the defendant, Moore; that suit had been mstüuíed, by Moore, against the complainant and John Wright, and judgment recovered, That Boswell had paid off, and satisfied the judgment, notwithstanding which the sheriff was about to make the amount, out of the complainant’s property, by an execution.

At September Term, 1827, an order of publication was made, as to Moore, but no answer was ever filed by him; nor is there any judgment, pro confesso, against him.

At March Term, 1829, James Boswell, one of the payors, who is charged by the bill, to have discharged the judgment, was made a defendant.

Boswell answered, alleging, in substance, that John Wright and himself had executed the note, as securities for William Wright; that he had paid the amount of the judgment, and taken a receipt from Moore; and that the judgment had been assigned to him, to enable him to reimburse himself; and that the sheriff was directed by the plaintiff to said judgment, to make the money, and pay it over to said Dos well.

The deposition of Malcolm Gilchrist, is the only one, which appears io have been taken in the cause; and that io so confusedly written, that it conveys no distinct idea to the mind.

The allegation, that Boswell has discharged the judgment, is nowhere sustained by proof.

The complainant states in the bill, that the receipt of Moore, for the amount of the judgment, is made an exhibit; but it no where appears, in the record. It is true, that Boswell’s answer admits its execution, but this cannot be received as evidence against Moore.

In fact, the whole case appears to have been acted on, in the Court below, without the least respect to regularity of proceeding.

Moore, the payee of the note, in whose favor the judgment was recovered at law, is perpetually injoin-ed against enforcing his judgment, without having been regularly brought into Court.

An order of publication appears to have been made against him, but there is no proof, that publication was ever made; nor was a judgment, pro confesso, ever rendered against him.

A co-obligor with the complainant, who, during the progress of the cause, is made defendant, answers, that he has paid the debt to Moore, and a perpetual injunction is the consequence, without any proof of the payment, or an opportunity being afforded to Moore, to contest it.

Under these circumstances, this Court does not feel itself authorised, to examine the points made by the brief.

The decree is reversed, 'and the bill dismissed, at the costs of the defendant in error.