Smith v. Simmons

1 Tapp. Rep. 311

• Court: Belmont County Court of Common Pleas
• Decided: November 15, 1818
• Status: Published

Opinion

President.

The complainant being entitled, by the default of Simmons, to a decree against him, this motion can only be sustained on the ground that the complainant has not exhibited a case which authorizes the interference of this court; and accordingly it is urged, in support of the motion, that if the facts were true, as stated in the bill, they would have formed a good defence at law, and might have been so used by way of defence to the scire facias before justice Mitchell. It will be necessary to examine this position. The judgment in Virginia, and before justice Thompson, was at the suit of and in favor of Simmons against Smith. It is alledged to have been paid by Clark for Smith to Ohapline as agent of Simmons: the payment to Ohapline could not avail Smith, unless he also proved his (Chapline’s) authority to receive the money: now Ohapline was dead; it could not, therefore, be proven by him: Simmons was plaintiff in the scire facias, and could not be compelled, at law, to answer to the fact of agency. It does not appear, therefore, how this fact could be proven before justice Mitchell; and although it is considered as now admitted by Simmons, yet it no where appears that it could in any way be made out but in a chancery proceeding. The complainant, then, had no defence at law. If the judgment had been paid to Ohapline, as Simmons’ agent, by Smith or Clark for him, it is inequitable surely to allow an execution to issue for the amount of it. This payment stands admitted by Simmons, and is not denied by Clark. The latter, in his answer, “denies that he undertook to settle the said judgment as stated in the bill” — he may have undertaken to settle the judgment, however, and may have paid it to Ohapline. This mode of answering is equivocal; and, when he admits the deposition of Ohapline, swearing to the fact of payment, a deposition taken at his instance and to be used for him, the grounds on which this suit rests, seem strengthened rather than done away by the answer of Clark. But the injunction might be dissolved as to Clark, if, as it stands, it could affect his interests; but it does not appear that it has any such effect: from his answer I cannoi conclude that he has any interest whatever in the judgment against Smith; he has taken the management of the business into his bands for other persons; he is merely an agent for the owners, so that an injunction against the judgment, must be merely indifferent to him. Motion overruled.