McLaughlin v. Clark

1 Free. Ch. 385

• Court: Mississippi Chancery Courts
• Decided: July 1, 1844
• Status: Published

Opinion

The Chancellor.

The complainant was indebted to the defendant in the sum of five hundred and sixty dollars, and was to give the defendant notes on third persons, to be collected and applied to the discharge of such indebtedness. The defendant sued on the original agreement, and obtained a judgment, which this bill is filed to injoin, upon three grounds.

First. That the complainant, by agreement, placed in the hands of one Neill, as the attorney of Clark, other notes, which were collected in part by Neill, who fled the country, carrying the money so collected with him.

Second. That Neill, as the attorney of Clark, deceived him, by taking a judgment against him contrary to his promise.

Third. That Clark wrote a letter to Neill, instructing him to dismiss the suit against the complainant, and to receive notes from him, and collect them for his (Clark’s) use.

All these allegations are flatly denied by the answer, which says, that if any claims were placed in Neill’s hands by the complainant, (which is denied,) that it was purely an arrangement between Neill and complainant, with which the defendant had nothing to do.

The deposition of Rainey, the only witness, is altogether too vague and indefinite to overrule the positive denials of the answer. It [will apply about as well to one case as another. There is nothing, in it to show that the transaction to which the witness refers is the one under consideration. But giving to it its fullest weight, it falls far short of sustaining the complainant's bill. He states that he carried a letter from Clark to Neill, instructing Neill to dismiss a suit which Clark had brought against the complainant, and to receive from the complainant the claims he had proposed to give, and to collect them for his (Clark’s) use. What suit was to be dismissed? It is not described by date, sum, or other designation. What claims were to be received? Upon whom? For what sums? But suppose it to be sufficiently definite to apply to this transaction, it proves nothing more than a mere proposition on the part of the complainant to let the defendant have certain claims. Were such claims ever delivered to the defendant or his agent? There is no proof to that point. It is true there is a paper purporting to be the receipt of Neill, of certain claims to be collected for Clark’s use, exhibited with the bill; but it is not only not proved, but its genuineness is denied by the answer.

Let the injunction be dissolved, and complainant’s bill dismissed at his cost.