Marsh v. Mandeville , 28 Miss. 122 ( 1854 )

Mr. Justice Fisher

delivered the opinion of the court.

The appellees filed this bill in the district chancery court holden at Natchez, to revive and enforce a judgment recovered in the name of the Planters Bank, in the circuit court of Adams county, on the 7th of December, 1843, against Robert J. Walker and the appellant, Cyrus Marsh.

The judgment is founded upon a note made by E. G. Plowell, for the sum of $900, and indorsed by R. J. Walker, Brander, McKinna & Wright, William Harris, and the appellant.

The bill alleges that the Planters Bank, on the 8th day of June, 1843, by deed assigned and transferred the note to the complainants, for the collection of the money due thereon, and for the payment of the debts of the corporation.

It further alleges, that on the 9th day of June, 1845, a judgment of forfeiture was pronounced by the circuit court of Adams county against the bank, by reason of which the complainants are unable to proceed at law to enforce the collection of said judgment.

The case of Bacon et al. v. Cohea et al. 12 S. & M. 516, settles the question as to the complainants’ right to maintain a bill in a court of equity to enforce the judgment. By the assignment they acquired a right to the money, and to use the name of the corporation, so long as it had a legal existence, to prosecute at law the remedy appropriate for the collection of the debt. The substantial right thus acquired remains unaffected by the extinction of the corporation. The legal remedy alone is gone; the right remains the same; and this being the case, it is a principle which lies at the very foundation of equity jurisprudence, that a court of equity will entertain jurisdiction and grant such relief as the parties would have been entitled to if they could have enforced the judgment by proceedings at law.

It is next objected, that the court below erred in receiving parol evidence for the purpose of identifying the note. The deed of assignment refers to certain schedules as containing a description of the property and evidences of debts assigned. The note being for the sum of $900, is described in the schedule as a note for $904. The evidence was introduced to explain this mistake or discrepancy, by showing that the note was in fact for $900, and that the protest fees amounting to the sum of four dollars, in making out the schedule, were added to the amount of the note. It is settled by the very highest authority that parol evidence for this purpose was admissible. Pierce et al. v. Parker, 4 Metcalf, 80 ; Johns v. Church, 12 Pick. 557.

The appellant next relied upon his discharge in bankruptcy, in May, 1843, as a defence in the court below, which was also adjudged insufficient. He had ample opportunity to make his defence at law before the judgment was recovered, and having failed to do so, he must be regarded as having waived his rights in this respect. His defence now must be confined to such matters as have arisen since the recovery of the judgment, and of which, according to legal or equitable principles, he would have a right to avail himself.

The other questions — the statute of limitations, and the invalidity of the deed when tested by the statute against fraudulent conveyances — require no special notice. The first clearly has no application to the case, and the last has been decided upon this same deed by this court, against the appellant. 11 S. & M. 555.

Decree affirmed.