Sohier v. Merril

The complainant in this ease had sufficient grounds, prima facie, as assignee of the creditors, to suspect from the large amount of this note, and the relationship between the parties, and the great length of time it had run, as well as its being defaulted, that it was not entirely for a valid consideration. He has done right, therefore, to have the real facts ascertained. But as developed by his own witnesses, they remove the suspicions, explain all which was questionable, and furnish no apology for the interference of this court in the legal proceedings by any extraordinary measure of an injunction. If regarded in another light, such as a motion to set aside the default and the subsequent proceedings, made at another session of the same term on the ground of a good defence to the note or cause of action, the case is not clearly made out. The consideration of the note was valid and ample. All payments on it have been allowed. There is no defence of the statute of limitations against it. Nor is there the least fraud or collusion proved which would enable the assignee to defend where the debtor might not. See cases in Leland v. The Medora [Case No. 8,237). If Andrew Horn could in strict law defend, because he signed after the original malting of the note, it would not avail in favor of the other signers. But, in my view, he has in strict law no good defence, much less in equity, and much less in such a way as to justify us in setting aside the default to let in a de-fence of so harsh and unjust a character. Such a subsequent signer may well be regarded as a prii: :ipal, and as adopting both the original promise and original consideration. See cases in Phillips v. Preston, in 5 How. [46 U. S.) 278. He, in truth, received the benefit of much of the very property left with the firm, for which this note was given. When he afterwards became a member, and Richard conveyed it, the title to other property received in exchange or bought with its proceeds was taken in his name instead of Richard’s. Again, he not only in this way obtained property, but Richard’s name ceased to become good security by this means, and Andrew’s was, properly substituted or added to it in consequence of his holding much of the estate which had before been in Richard’s name. This course was not only just, to Merril, but it doubtless led him to give further indulgence to all on the note. He, in fact, waited nearly six months longer, and thus the consideration in either view seemed sufficient to make Andrew responsible for what he promised, deliberately, in writing, and over his own signature. But, in the other view, as a case where the plaintiff, Merril, in a suit at law is prosecuting an action un1 justifiably, or getting an improper advantage in this court, the application for an injunction does not seem, after all the evidence has been put in and weighed, as at all sustained by any sufficient ground. There is no combination to uphold the attachment against the insolvent law by a collusive action in this court, when it should not be here. Merril lives in Maine, and did in 1841, when the *772note was given, and long before. Towne v. Smith [Case No. 14,115]; Perry Manuf’g Co. v. Brown [Id. 11,015]. Merril obtained his lien, then, by his attachment first. It was not only first, but a fair and legal lien. Mer-ril seems, also, in law and equity entitled to recover all the note, deducting the endorsements. The partnership was on fair terms, the settlement fair, the execution of the note fair, the suit conducted in a fair manner. In this state of things it wpuld not do to issue an injunction, because something may be obtained from Merril’s answer to the bill which would injure his case. No such presumption exists, since the whole has been explained satisfactorily by the other parties, under oath. Without evidence, then, of wrong or fraud, and indeed, against evidence to the contrary, I do not feel justified in interfering with an actual judgment.

Motion for a temporary injunction refused.