JAN. TERM, 1856. DUNN V. GRAHAM. at auction, from Leonard E. Case, as agent . for Wills, Pease & Co., they, together with Strong, none of them having an interest in such purchase, as the mere securities of Varn, executed with Varn, a promissory note, on the 29th of DUNN ET AL. May, 1849, payable oh the 1st of Jan-V.
uary next following, to Wills, Pease & GRAHAM ET AL. Co. or bearer, for the sum of $382.90, and delivered the same to Case as such The answer of one defendant, is not evidence against his co-detendant, unless upon proof of such agent. an absolute unit y and identity of interest and de-That on or about the time the note sign between the defendants as under the ordinary matured, it -vas entirely discharged rules of law, will make the actsor admissions of one and paid off by Varn, who paid into . the acts or admisstons of the:other, st:c. Blakeney v. Ferguson,11 Ark. 641. the hands of said Case, the amount of Quere: When, and how far, is the answer of one the same, and received into his own defendant, when responsive tu t he bill, evidence in hands, from the hands of Case, as favor of his co-defendant? agent, the note in question, as a full When the answt r of a defendant, in all material points, is responsive to the al egations in the bill discharge of the debt fo which it was and to the special interrogatorms has- d thereon and given. That afterwards, the note was propounded to him, it must bs taken as true, unless again put in circulation oy means un-disproved under the role rt-quiring two witnesses, known, but which they charge to have or one with corroborating circumstances. G., as assignee of W. & Co., obtained a judgment been fraudulent. That . eventually it against V. and D. and others as his securities, on a came int() the possession of defendant note payable to W. & Co., or bearer. The securities Graham, who pretended to have de-tile a bill against G. and V., alleging that V.had rived his title to the same from Wills, paid the note, and again put it in circulation, and interrogate G. as to his title to the note : G. an-Pease & Co.; but complainants be-swers that he bought the note of the agent of the lieved his only title was derived by a payees, and that V. was his age t to make the pur-fraudulebt contract with Varn, long chase; the complatnants prove by one witness, the after the before alleged payment of the agent of the paye- s, that V. paid him, and that he delivered the note to him : Held, That, the answer same by Vern, and delivery of it to of G., as to his title to ths note must be taken as him by Case, as agent. But in either true, and that the evidence of the witness is not case, complainants charged that the irreconcilable with the truth of the statements in title of Graham was fraudulent. That the answer. after execution of the note, Varn be-Appeal from Calhoun Circuit Court in came notoriously insolvent. That at Chancery. the spring term of the Calhoun circuit *H ON. JOHN C. MURRAY, court, A. D. 1852, the complain-611 Circuit Judge. ants together with Vern and Cummins, for the appellant. Strong, were sued on the note in question by Graham as assignee of Curran & Gallagher, for appellees. Pease & Co., and none of r63 62 3 9 *Snow, J. The complainants, them making any defense, he obtained Allen D., John and James S.. Dunn, a judgment. That two of the com-. and David Daugherty, tiled their bill plainants, to-wit : John Dunn and In the Calhoun circuit court, against James S. Dunn, knew nothing of the the defendants, Joseph M. Graham, alleged payment of the note, and its j ohn M. Varn, Elijah F. Strong and fraudulent re-circulation, until after Wills, Pease & Co., alleging that Varn, the adjournment of that term of the having purchased a lot ot merchandise court. But that the two others, to-wit:
DUNN v. GRAHAM. VOL. 17 Allen D. Dunn and David Daugherty, or that this respondent ever put the had heard something of it, but knew said tote in circulation, after having of no person by whom they could es-paid off and discharged the same, as is tablish the facts, except Varn and Gra-by said complainant alleged. This re-ham themselves, until the adjourn-spondent, however, admits, that at the ment of said term. They also charge time the said note became due, he did that when Graham came into the pos-pay into the hands of said Leonard E. session of the note, he well knew it Case, the amount of the principal of said had been paid and delivered up to note, there being, at that time, no in-Varn, and that the latter was notori-terest due thereon. And that this re-ously insolvent. The bill then pro-spondent did receive the said note from ceeds to propound numerous special the said Leonard E., the agent of the interrogatories to Vern, among them, said Wills, Pease Sr, Co., but this re-the following, to-wit: whether he did spondent most positively affirms, that not-discharge, pay off and take up the the money he paid to the said Leonard note, as alleged ? Whether he did not E. for the purchase of said note, was pay into the hands of Case, as agent, the money of, and belonging to the the entire amount of the note, and re-said Joseph M. Graham ; that this ceive into his own hands the note from respondent acted in the whole matter Case, in full discharge of the debt it and transaction, as the agent of the was given to secure? Whether, after-said Joseph M. Graham ; that the wards, he did not again put the note said Joseph M., having supplied this in circulation ? If not, by whom, or respondent with the money necessarY by what means, was it again put in cir-to purchase said note as his -agent ; culation? Whether he did not trade that this respondent did so purchase the note to Graham, and if so, by what said note, and did so receive the same fraudulent intent ? Was it to defraud as the agent of the said Joseph M. Gra-Graham or the complainants ? If ham, and that this respondent did, im-neither, then who? If nobody, then mediately upon receiving said note, de-why did he again put it in circulation liver the same to his principal, the said after its payment and discharge as Joseph M. Graham, and this respond-aforesaid ? Whether the contract, be-ent affirms positively that he never did tween him and Graham, was not fraud-put said note into circulation, except ulentoo far as Graham was concerned ? when he first delivered the same te Whether Graham was aware that the the said Leonard E., in payment of note had been paid before it came into his debt to the said Wills, Pease & Co.; his possession, and whether he was not and that this respondent never had fully aware that Varn was, at that said note in his possession, except as time insolvent ? Whether or not he, the agent of the said Joseph M. Gra-Varn, is insolvent ? If so, when did ham ; and this respondent affirms that he become so ? said note, to the best of his knowledge, Varn after responding to various al-hearsay, information and belief, never-legations and interrogatories, proceeds has been out of circulation at all, from upon oath to answer, in reference to the time the same was executed until the interrogatories above copied, as the same was sued upon by the said follows, to-wit : "This respondent Joseph M. Graham, who is the bone, further answering, says, that it is not fide purchaser of the same, from the true that this respondent ever paid off said Wills, Pease Jr, Co. This respond-and discharged said note, when the ent further emphatically denies that 649 same became due, or at o any time, he ever traded said uote to the said
JAN. TERM, 1856. DUNN V. GRAHAM. Joseph M. in any manner whatsoever. that the note had been paid ? To And this respondent, further answer- which he makes sworn response, as ing,says,that the charge of fraud in said follows, to-wit: "That he is the bona complainant's bill contained against fide assignee and holder of said promis-him, is absolutely false and untrue. sory note. That he purchased the This respondent never attempted to de- same, for a valuable consideration, fraud the said complainants, or the said from L. E. Case, the agent of Wills, Joseph M., or either, in any manner Pease & Co., some time in the latter whatsoever. That he never put said note part of the year 1849, to-wit : about the 659 *in circulation, except when he 25th of December, for the sum of the delivered the same, as above stated, to principal due thereon, to-wit : 8382.90. the said Leonard E. Case.' And this That a short time after he had arrived respondent most positively affirms, in this State, having money on band that he never was, for one moment in yielding him no profit, and having his life, the owner, or the part owner been informed of the existence of the of the said note, or that he has ever note in question, and that it would paid one cent on the same to any per- bear interest at the rate of ten son in the world, although, as he has per centum per annum, from matu-above stated, he did, as agent of the rity, and that the makers were per-said Joseph M. Graham, pay the fectly solvent, he determined to amount of the note to the said Leonard *purchase the same as an invest- F66 E., but that was done solely for the ment. The note, at that time, being use and benefit of the said Joseph M., in the possession of L. E. Case, as and with the money of the said Joseph agent of Wills, Pease & Co., and at M., to enable the latter to become the Camden, in Ouachita county, and be-bona fide purchaser, and legal holder ing unable to go there at that time of said note. This respondent further himself, and John M. Varn being about most positively affirms it to be false, to visit that place, he requested Varn that he was insolvent at the time of to purchase said note as his agent, and the purchase of said note by the said he consenting to do so, respondent Joseph M., or for some time thereafter, furnished him with the sum of mon ey, as is by said complainants alleged. He to-wit : .5382.90 for that purpose. There-admits himself now insolvent, but he upon Varn, as agent of respondent, did not become so until about eighteen purchased the note, with the money months after the note was lifted by of respondent, furnished him for that the said Jose ph M. from the said purpose as aforesaid, from L. E. Case, Leonard E." as agent of Wills, Pease & Co., and re-Various special interrogatories are ceived the same, and immediately then propounded to the defendant, on his return from Camden, delivered Graham. By what title does he hold the note to respondent, who thus be-the note ? Whether he holds it as came, by mere delivery of the said bonafide assignee of Wills, Pease & Leonard E., as agent of Wills, Pease Co., or by a purchase from Varn ? If & Co., to Varn as agent for respondent, by the former, by what member of the the promissory note being payable to tirm was it assigned and delivered, and Wills, Pease & Co., or bearer, for the what was the consideration given for consideration aforesaid, the bona fide it If by the latter, at what time, and legal holder of the same, for full and under what circumstances, was value. That he had never heard that the purchase made ? Whether he was the said note ever had been paid, ex-aware at the time of the purchase, cept in the manner just stated by re-
DUNN V. GRAHAM. VOL. 17 spondent ; neither does he believe that his note, due 1st January, 1850, with it ever was ; on the contrary, he ex-Elijah Strong, A. D. Dunn, and per-pressly avers the truth to be, that it haps some one or two more names as never has been paid in any manner." security. On the day the note fell due, From information and belief, he avers Mr. Varn called at our office and paid, that complainants knew, at the time and took up the note. We allowed he purchased the note, that respond-him a credit of $8.90, as he said that ent employed Varn, as his agent, to certain goods, amounting to that FWD, make the purchase. Avers that the which he had bid off at the sale, and charge of fraud contained in the bill, which were included in the note, were against respondent, is absolutely and not delivered. I know nothing fur-entirely false and untrue. That Varn, ther with regard to the note. at the time the repondent purchased L. E. CASE." the note, and for the space of more To Graham's answer a general repli-than a year afterwards, was generally cation was filed, but it does not appear considered perfectly solvent. That re-that any was tiled to the answer of spondent loaned Varn $150, at the Varn. The bill prayed relief against time the note was purchased ; and all the defendants by injunction, and denying that Varn ever paid said note, also general relief. The eause having otherwise than stAted, lie prays his been previously set- down for healing, answer may be taken• -s a demurrer ; was heard and determined at the that plaintiff's are not under their hill, spring term, 1854, upon the bill and ex-entitled either to discovery or relief : hibit, upon these two separate answers, their remedy at law being ample and and the statement of L. E. Case read complete. as evidence by consent. The decree Besides these answers, there is was, that as to all the sum theretofore no evidence in the record, other enjoined, except $8.90, the injunction than a statement of L. E. Case, should be dissolved, and as to the latter which seems to have been filed sum, it should be perpetuated. The by the complainants, and by complainants appealed to this court. consent made a part of the testi-It will be seen, that the answer of 671 "'mony in the cause," as is stated Varn was sworn to, and that irrespect-in the record. That statement is as ive of the rule, that the answer will be follows, to-wit: "In the spring of the taken as true, whether responsive or year 1849, the firm of Wills, Pease & not, when no replication has been put Co., of New Orleans, placed in the in; his was actually responsive; and, hands of myself and partner, a claim therefore, must be taken as true against for about $5,000, against Smith & the complainants, for that reason also. Thorn, of Camden, for collection. In It will also be seen, that it went to the liquidation of this claim, Messrs. S. & complete destruction of the foundation, T. handed over to us their stock of *upon which the complainants r68 goods, to be sold by us at auction, and built their case, for relief against each the proceeds to be applied to their and all of defendants. claim. The auction was advertised for It is perfectly clear, that had Varn's the 28th of May for that year, and the answer been the opposite of what it goods were sold on a credit until the was, it could never have been read by first of January, 1850, the purchaser the complainants against Graham, un-giving note with security. At the sale less, in connection with other testi-John M. Varn bid off goods to the mony establishing—not a community amount of 8382.90, for which he gave of interest merely, like that in tenants
JAN. TERM, 1856. DUNN V. GRAHAN. in common—but such an absolute tion of that case in Pettit v. Jennings, unity and identity of interest and de-2 Robinson's (Va. Rep. 581); or else-sign between Graham and Vara, by where he occupied the attitude of a means of the fraud charged against stake-holder for the complainant and them in the bill, as under the ordinary his co-defendant, as in the case of rules of law, would have made the acts Mills v. Gore, 20 Pick. Rep. 35. See or admissions of either the acts or ad-also Greenl. Ev., vol. 3, sec. 283, p. missions of the other—like the acts or 269. damissions of co-partners, or joint ten-The reasoning, in support of the rul-ants, having a complete unity ot title ing in both of these classes of cases, is and interest, or of co-conspirators to the effect, that the complainant, identified in a common design. And having called upon the responding de-this, because of the established rule, fendant for discovery, as to the whole no longer open to question, that the case made in his bill, has thereby answer of one defendant cannot be read made him a credible witness against in evidence against his co-defendant, himself, as to his whole case; having unless he refers to such answer as cor-interrogated him only as he desired; rect, or is so combined and identified upon allegations framed in the man-with the answering defendant, as to be ner most favorable to his own interest, bound, under the ordinary rules oflaw, and obtained the discovery sought, by by his confessions, declarations, and searching the leading questions, the admissions. Blakeney v. Ferguson et response has been obtained under the al., 14 Ark. 641, and cases there cited. most favorable auspices for the com-But although that proposition is per-plainant; and that the response, thus fectly clear, is it equally clear, that obtained, is not, as against the com-Graham could not, nevertheless, insist plainant, obnoxious to the objection that that answer should enure to his for want of cross-examination, as it benefit by way of a legitimate opera-would be, if allowed to be used against tion, against the complainants? a co-defendant. Hence, it was sup-The adjudged cases, favoring the af-posed not unfair to hold in these cases, firmative of the proposition, so far as that it should not lay in the mouth of they have come under our observation, the complainant—when the response do not go the length of holding that in thus obtained went to destroy the every case, where the responsive an-foundation of the case made in his bill, swer of the responding defendant goes to say it was not evidence against him-to destroy the foundation of the case self on the whole case made by his bill; made in the bill, it shall enure to the in imperfect analogy to the rule, which benefit of the co-defendant, by ope-holds a party to the answer of his own xating as evidence against the complain-witness, who unexpectedly, testifies ant in the whole case; but the reason-the very opposite of what he antici-ing, upon which these adjudged cases pated. are based, and by which they are sup-The argument to the contrary is, ported, does seem to go that far. They that the answer to a petition for dis-are, so far as we have seen cases covery, stands as a deposition, and is where the defendant, protected in not evidence, for any purpose, until this wise, was either claiming unread by the party obtaining it, who der the responding defendant, as may read it, or not, at his election. in the case of Field et al. v. .1161- Conway & Reyburn v. Turner & Wood-69*] *land et al., 6 Crunch Rep. 8-24; ruff, 8 Ark. 362, and cases there cited. and see also Judge Baldwin's exposi-But conceding this to be so, do the
VoL. 17 reasons, which sustain the rule, apply with full force, when the bill is not only for discovery, but also for relief consequent thereon; and that, too, in some one aspect of the bill, against all the defendants therein? But it is not necessary for us to determine any point as to Varn's 70*]*answer, nor has any been mooted by counsel; because, waiving any question as to that, and also any question of jurisdiction, as we do, the decree of the court below is well euough sustained on the merits, without any reference to Varn's answer. In the light of the case of Wheat et al. v. Moss et al., 16 Ark. Rep. 243— (decided at the last term) the answer of Graham, in all material points, is responsive to the allegations in the bill, and to the special interrogatories based thereon, and propounded to him; and must, therefore, be taken as true, until overbalanced under the established rule. And so far from this having been done in this instance, the evidence of the only witness, produced on the other side, is, by no means, irreconcilable with the truth of the statements contained in Graham's answer. Hence, all that is stated by the witness may be true, as it doubtless is; and nevertheless, Graham has stated the truth also, in his answer. Finding no error in the record, for which the decree should be reversed, it will be affirmed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.