Ford v. Buchanan

By the Cowrt. —

Lumpkin, J.,

delivering the opinion.

When the answer came in to the bill filed in this case, a. motion was made by the complainant to dissolve the injunction, which was to restrain the common law action until discovery and relief could be had under the bill.. This motion was refused, and the judgment of the Court brought up to this-Court by writ of error, praying a reversal. The judgment of the Court below was affirmed. We can not understand, therefore, why, when the equity cause was reached, in its order, the injunction should have been dissolved, and the common law action ordered to be tried. We think the aid interim injunction should have been continued until a final decree was rendered under the bill, upon all the issues made by the bill which included the same matters that were involved in the common law case. It might have resulted in a perpetual injunction of the proceeding at law, and thus have saved one-trial, at least.

For myself, I should gladly have availed myself, as a matter of policy, of the direction which his honor the presiding judge gave to- the litigation — with the admissions of Buchanan in his answer — that the acceptances upon which his suit is-brought, were made upon the faith of the iron which was to be forwarded to him by Ford, to be sold by him, and the proceeds applied to the drafts — and that the same had been received, but instead of being disposed of in the market according to his agreement with Ford, had been appropriated to his o-wn use. I can not see how there could have been a recovery in his favor. At any rate, the whole burden of showing that the iron had been fairly accounted for, would have devolved upon him.

Still, the counsel of Ford preferred to take the other course;, and he, no doubt, understood the management of his case better than we do. It was his right, we hold, to insist upon trying the equity cause — when • reached and called in its order— and no doubt, all the equities between the parties can be better adjusted in this way.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court,, that the judgment of the Court below be reversed, upon the ground that the Court erred in dissolving the injunction, and' ordering the action at law to be first tried.