Grove v. Fresh , 9 G. & J. 280 ( 1837 )

Dorset, Judge,

delivered the opinion of the court:

The first objection to the decree is, that the proceedings upon which it is founded were too summary. However severely the expedition with which this cause was brought to a final decree may operate upon the appellant, it was warranted by the acts' of assembly, under which the . proceedings were had, and therefore forms no ground upon which this court can reverse the.decree.

The second, objection is equally untenable. It urges the reversal of the decree, because it decreed that the bill be taken pro confessó. That part of the decree by which the bill was adjudged to be taken pro confesso, was only intended to operate against the defendant Joseph Ward, against whom publication as a non-resident had been duly made; and as against him, it was indispensable to a find! decree in the cause. .The testimony taken under the commission being admissible only against Grove, and in no wise binding the interests of Ward.

To the third objection no greater weight can be given. It alleges multifariousness in the bill of complaint. Whether that allegation be true or false is wholly immaterial, it being conceded by the solicitors on both sides, that such a defect can only, be taken advantage of by way of demurrer. But it is insisted, that the appellant never having appeared in the Chancery court until , after the final decree, could not have used this defence before that tribunal, and should not therefore be denied its benefit before this court. This excuse gives to the appellant no such right. A court of equity extends no favours to those who are in default in disobeying its process. Had the appellant appeared in obedience to the mandate of the court, the defence now set up could not have been denied him, but having failed to do so, the consequences of his delinquency are justly visited upon him.

The fourth objection, which seeks to exclude the copy of the canal contract, introduced as evidence under the ex parte commission, is well taken if before the proper tribunal; on which question we mean to express no opinion. But concede the inadmissibility of the proof objected to, it is by no means certain that the other testimony in the cause does not render unnecessary the proof objected to ; but whether it does or does not, we do not design to decide, as this case will be remanded to the court of Chancery, where in all probability the question will never arise.

Although the decree of the chancellor is not reversed for any of the reasons assigned, there is to it a fatal objection, arising under the testimony in the cause. The appellant has been decreed to pay to the appellee the one-third part of two thousand dollars, the alleged net profits of the partnership transactions, without its being proved that any portion of that amount was ever received by him. The only evidence tending to show such a receipt, is that of Ambrose, who states that Grove informed him “ that he had had a settlement with the Canal Company, and had obtained a certificate for two thousand seven hundred and eleven dollars, sixty-eight cents, bearing date the latter part of December, 1833, or the 1st of January, 1834.” Until this money has been actually or constructively received, or has been lost, by the negligence or misconduct of Grove, no decree against him predicated upon its payment can be made. The bill was filed in less than eighteen months after the settlement took place, which is too short a time' to raise a presumption of payment, sufficiently strong to render Grove personally answerable for the amount, and ther'e'was nothing in the nature of tire settlement that imposed on him such a responsibility. The decree of the chancellor, therefore, is erroneous in so charging him. It is also erroneous on another ground, though perhaps one for which, on the present appeal, it could not be reversed-. Yet as this case must be remanded for further proceedings in the court of Chancery, it is proper that we should suggest it, that it may be remedied by the final decree of that -court. In a bill for an account, filed by one partner against his co-partners, after the termination of the partnership, all the partners, as well defendants as complainant, are regarded as actors, and the accounts must be stated -by the auditor, and the concerns of the partnership and rights of the several partners finally adjudicated upon by the'chancellor, in the same manner as if each partner was a complainant, filing a bill against his co-partners. The chancellor would not otherwise finally adjudicate upon the whole case before him. Such was not the course of proceedings adopted in this cause. The audit was made, and the decree passed, simply upon the elaims of the complainant against the defendants, his co-partners, leaving the claims of the defendants as between themselves wholly undetermined.

This court will sign a decree, reversing without costs the decree of the chancellor, and remanding this cause to the court of Chancery, that such further proceeding may be had therein, as may be necessary to a final decree upon the rights of all the parties, according to their respective equities.

CAUSE REMANDED.