Champion v. Miller, 55 N.C. 194, 2 Jones Eq. 194 (1855)

Aug. 1855 · Supreme Court of North Carolina

55 N.C. 194, 2 Jones Eq. 194

MARTIN CHAMPION AND OTHERS against WILLIAM J. T. MILLER AND OTHERS.

Where it appears, from the bill itself, that the plaintiff hada complete defence at law to a note, which was not set up, Equity will not interfere to stop the collection of the debt.

Cause removed from the Court of Equity of Cleaveland County.

” The bill alleges that, in 1851, Richard Champion held two notes on the plaintiff, one for the sum of sixty dollars, and the other for about ninety-five dollars; that about the 3rd of June, in that year, they exchanged horses, and said Richard agreed to give the plaintiff $50 as boot, which was to be credited on these notes: also, that he made another payment in iron amounting to $17.32, which was likewise to be credited on the notes. That these credits were not entered as he had supposed they would be; that Richard Champion brought suit on the notes before a justice of the peace, and that the plaintiff did not attend the trial because he believed, from frequent conversations with Richard Champion, and from repeated assurances, that he had received the benefit of these payments as credits on the notes, or would receive the same when judgment was entered; he, therefore, suffered judgments to go against him by default, when, contrary to his expectation, the judgments were entered for the whole sum in each case, without any allowance of credit on either: that one is for $63.05, and the other for $99. It further alleges that he made payments on the judgments, after they were rendered, amounting in all to $93.50; that, at the time of these payments, it was again agreed that he was to have the benefit of these former payments, on the judgments, and the said Eich-ard remarked there was then very little between them; that the plaintiff took no receipt for these payments, from the fact of his having great confidence in the said Eichard who was his relation; that these judgments were permitted to remain in the hands of the officer, without any attempt to enforce them being made, until after said Eichard’s death, which occurred in- — — The said Eichard having made a last-will and testament, Maria Champion was appointed Executrix, who qualified; that said Maria, after this, gave directions to the officer to collect these judgments, and he, the said officer, has levied an execution on the property of the plaintiff for the whole sum, without allowing any of these credits. The prayer is for an injunction and for general relief. On the coming in of the answer the injunction was dissolved, replication was made to the answer, and the bill ordered to stand over as an original bill. Maria Champion, the executrix, is since dead, having made a will and appointed defendants her executors, who have come in and made themselves parties. Depositions have been taken, and the cause set down for hearing on the bill, answer, proofs and former orders, and sent to this. Court.

Skvpjp, for plaintiffs.

Lander, for defendants.

Battle, J.

"Without looking into the proofs, there is a clear and indisputable principle, apparent in the bill itself, which shows that it cannot be sustained and must be dismissed. When sued upon the notes, the plaintiffs had, according to their own statement, a complete defence at law, and they have assigned no sufficient reason why they did not avail themselves of it upon the trial before the magistrate. It is not pretended that they were prevented from doing so by any fraud or deceitful contrivances of the defendant’s intestate, or any other person; and the only reason which they give for having suffered the judgments to be taken by default, was, that from the plaintiff Martin Champion’s “frequent conversations” with the intestate, and from “repeated assurances,” he had no doubt that “ he had received the benefit of his payments, until he learnt- otherwise after the trial.”

It is hardly necessary to cite authority to show that a Court of Equity will never interfere in such a case, and we will refer to two or three only, in our own Courts: Fentriss v. Robins, N. C. Term Rep. 177; Peace v. Nailing, 1 Dev. Eq. Rep. 289; Bissell v. Bozman, 2 Dev. Eq. Rep. 154.

The payments which are alleged to have been made after •the judgments were taken, are subject to the same objection. The plaintiffs do not indeed say, in their bill, that suits were instituted upon the judgments, but such was the fact, as is shown by the exhibits filed with the answer.

If the plaintiffs were entitled, under the circumstances stated in their bill, to any relief at all, it was by the plain remedy at law of a writ of reeorda/ri. All the authorities concur in declaring that they cannot have any relief in Equity, Wells v. Goodbread, 1 Ire. Eq. 9.

PeR Cueiam. The bill is dismissed with costs.