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Latest revision as of 11:28, 9 March 2021
was awarded, his memory does not enable him now to say, nor can it be material. It is true your respondent applied for and obtained an appeal from the chancery decree aforesaid, which constituted the alleged equity of the complainant's bill of injunction, and it is true he afterwards answered said bill, and your honor dissolved the injunction, not for want of mere allegations, but because the only equity which had ever existed viz: the decree aforesaid, had been superceded by the appellate Court; leaving no ground of equity in the bill. It is also true, your respondent sued out execution, after the dissolution of said injunction, for the balance of his judgment at law aforesaid; the decree of the chancery court, as he is advised, became a nullity after the appeal, and upon that ground, and that only, could your honor have dissolved the injunction. Your respondent denies that he owes the complainant a farthing, growing out of the chancery suit aforesaid, but on the contrary he insists that the complainant is his debtor, in the partnership transactions, which are the subject of that suit, and he well hopes to recover the sum reported in his favor, in the above first mentioned statement of the Commissioner. Whilst your honor doubtless decreed as you thought just & right, the Court of Appeals may think otherwise; at all events, they have now to try the case. Juries often find verdicts, & the judge sets them aside, and awards new trials; & the finding of the jury is no evidence of indebtedness. And so in this case, the appellate Court has awarded a new trial to be had before them, & the decree below cannot be regarded as determining any indebtedness. Nor is there any hardship, as charged in the bill, the worthless slave aforesaid, died in the possession of the complainant, his own rightful property. Your respondent admits the judgment, & that it was founded upon the award of Messrs Davis & Dabney: the judgment on the award was never delayed by your respondent's consent, but by the contrivance of the complainant. It was not the expectation of your respondent, that the complainant could recover of him in the Chancery suit, but on the contrary he (the respondent) fully expected to recover, and still expects so to do, or he certainly never should have brought that suit, or taken an appeal. It is true, that after the decree, the counsel of the complainant offered to offset his decree against the judgment at law, which was declined, because your respondent believed he had been injured by the decree, and wished to have it tested by the Court of Appeals. The complainant, as above said, might rightfully have taken his rule upon your respondent, returnable to the next Court, to show cause wherefore the one might not be set off against the other, and in