Cammann v. Traphagan

The master reported the following opinion, which at this term was delivered by the Chancellor :—

This cause having been again submitted by the chancellor to the undersigned, one of the masters of the court, to advise what decree ought to be made ; and having read the pleadings, orders, proofs, exhibits and depositions made and taken in this cause, and considered the same; the master begs leave to state, that the facts of the defendant’s plea are proved. He however considers it proper to mention, that upon examining the record of the judgment pleaded, it appears, that the declaration contains three counts ; the two first are founded upon two promissory *231notes, to which the defendant demur red, and the third count is for money lent, goods sold, &c., to which the defendant pleads non assumpsit, and adds a similiter. The plaintiff joins in demurrer : then follows the award of the venire, the finding of the jury for the plaintiff, and the assessment of damages ; the issue in law not appearing to be otherwise disposed of. There are also blanks in the judgment of the court, which appear to have been left for the purpose of being filled up with the taxed costs. These errors and irregularities, the master considers, are to be corrected by some direct proceeding, and are not subject to exception when the proceedings are collaterally drawn in question : 2 Peters, 163.

The master would therefore advise your excellency to decree that the injunction heretofore issued in this cause be dissolved ; that the complainant’s bill be dismissed out of this court, with costs to be taxed, to be paid out of the monies deposited in court in this cause by the complainant: and the residue of the monies so deposited be paid to the defendant in this suit, for and towards the damages, interest and costs recovered by him at law upon the judgment in his said plea set forth; and that the said defendant be at liberty to proceed at law as he shall be advised, for the recovery of any balance that may remain due to him, after crediting the payment ordered to Ire made as aforesaid.

All which is respectfully submitted.

Elias Van Arsdalu,

Master in Chancery.

20th January, 1S31.