Atkins v. N. & K. Dick & Co.,
39 U.S. 114 (1840)

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U.S. Supreme Court

Atkins v. N. & K. Dick & Co., 39 U.S. 14 Pet. 114 114 (1840)

Atkins v. N. & K. Dick & Company

39 U.S. (14 Pet.) 114


A bill for an injunction was filed, alleging that the parties who had obtained a judgment at law for the amount of a bill of exchange, of which the complainant was endorser, had, before the suit was instituted, obtained payment of the bill from a subsequent endorser, out of funds of the drawer of the bill, obtained, by the subsequent endorser, from one of the drawers. It was held that it was not necessary to make the subsequent endorser, who was alleged to have made the payment, a party to the injunction bill.

In such a bill an allegation that the amount due on the bill of exchange was paid, is sufficient without stating the value or nature of the effects out of which the payment was made.

If there be any one ground upon which a court of equity affords relief, it is an allegation of fraud, proved or admitted.

On 24 June, 1834, Cain and Lusk, merchants of Alabama, drew a bill of exchange for two thousand four hundred and five dollars on Martin Pleasants and Company, of New Orleans, in favor of the appellant, James Atkins. This bill was endorsed by James Atkins to Parham N. Booker, and was afterwards endorsed to N. & J. Dick & Company, the appellees. The bill was protested, and the appellees brought a suit against James Atkins, in the Circuit Court of the United States for the District of Mississippi, to May term, 1838, and recovered a judgment for thirty-two hundred and twenty-five dollars.

Execution was issued on the judgment, and a levy was made on the property of James Atkins, who, in redemption of the same, gave a forthcoming bond, with sureties, for the delivery of the property to the marshal on the day of sale. The property not having been delivered according to the provisions of the bond, the marshal returned the bond as forfeited, whereby, according to the laws of the State of Mississippi, it became, in force and effect, a judgment against the obligor and his sureties.

The appellant, in order to stay execution on the bond against himself, and the sureties, filed a bill on the equity side of the court, and obtained an injunction against the obligors in the bond.

The bill states that since the giving of the forthcoming bond by the appellant and his sureties, he has ascertained, and does verily believe, that N. & J. Dick & Company had been paid the money mentioned in the bill of exchange, before the institution of the suit on the same, but that he had no knowledge of this on the giving of the forthcoming bond and its forfeiture; that he is advised and believes that the bill of exchange was paid to N. & J. Dick & Company by Parham N. Booker before the action was brought against him on the bill, and that the same was paid because of

Page 39 U. S. 115

effects placed in the hands of Booker by Lusk, one of the drawers of the bill. That he is advised and believes that he would have had a good and meritorious defense against Booker, on account of the effects placed in the hands of Booker by Lusk, had Booker brought an action against him in his own name, and he charges that the names of N. & J. Dick & Company have been used to defeat him in such a defense.

The defendant, the appellees demurred to the bill, and alleged the following causes of demurrer:

1. It is alleged in the bill as a substantive, and the original ground for injunction of the statutory judgment therein named, that one Parham N. Booker, is the actual, and not the nominal plaintiff in said judgment; that as endorser of the bill of exchange (the basis of the judgment) next after the complainant as the first endorser, having paid the amount of the bill to the holders, received certain effects of the drawers, whose amount ought to be credited to complainant, and yet the said Booker is not impleaded as a defendant.

2. Nor is the amount or value or nature of the effects so charged to have been paid to the second endorser, specified in said bill; nor what part or portion was discharged, or whether any of such effects proved productive.

3. The said bill contains no matter or grounds whereon the court can grant the relief prayed therein.

The court ordered, adjudged, and decreed that the demurrer to the bill be sustained and that the complainant have leave to amend his bill. It was further ordered, adjudged, and decreed that the injunction be dissolved, and the complainant in the bill declined making any amendment to the bill, and put the cause down for a further hearing upon the bill and demurrer, and, after argument heard, it appearing to the satisfaction of the court that Parham N. Booker was materially interested in the issue of said cause, and that the said Booker had not been made a party to the same, it was, therefore, ordered, adjudged, and decreed, that the said bill be dismissed for want of proper parties to the same, &c.

Page 39 U. S. 118

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