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Watt et al. v. Conger.
pressly authorized to vest any surplus money which they may have in charge belonging to the counties in stock, and they were empowered, at their election, to expend the three per cent. fund, or the interest arising therefrom, in the construction of roads and canals. We have above shown that the several boards of police were, by the law, constituted trustees for the management of that fund, and that the authority to manage implied the power to lend them. But were it conceded that this power was not implied, the act of loaning upon a contract for that purpose would be but an excusing of the power to manage, an irregular, at most an illegal exercise of a privilege acknowledged to exist; an act of which the state would have a right to complain, but which would not furnish a ground on which the borrower could evade a repayment of the money.
The suit was properly brought in the name of the president of the board, as the note was made payable to him and his successors in office. 8 Cranch, R. 30; Buffum v. Chadwick, 8 Mass. R. 103.
The judgment must be reversed, and cause remanded for further proceedings in the court below.
John WATT ET AL. vs. John B. Conger.
C. filed his bill against W. to obtain relief against certain alleged frauds of W.,
and to compel an account from him. He charged that W. had been for a long time his commission merchant in New Orleans ; had obtained a judgment at law against him in this state, under execution on which W. induced C. to assent to a sale, after the judgment had been paid, of his slaves, under promise that C. should have the possession and reap the advantages of their labor; but W., by various alleged devices, obtained possession after the sale under execution, and carried the slaves off; that C. had shipped, after the date of the judgment, various amounts of cotton to W. at different intervals; that W. had charged him usurious interest, and had paid money at different times for him, constituting a running account for several years, upon which, though W. alleged C. was in his debt, yet W. was largely in C.'s debt; W. de
Watt et al. v. Conger. murred generally to the bill; the court held, that, as to the alleged fraud in reference to the slaves, C. was in pari delicto, and W. was not bound to answer; but, in relation to the account, W. being called upon for a discovery, should have answered fully, as to all matters since the judgment, and
to that extent the demurrer should be overruled. In matters of account, extending over a variety of transactions, the remedy in
equity is deemed more ample and complete than at law, and tends to prevent a multiplicity of suits,
On appeal from the vice-chancery court at Natchez; Hon. Janies M. Smiley, vice-chancellor.
John B. Conger filed his bill on the 30th of January, A. D. 1847, against John Watt, Glendy Burke, and Louis De Saulles, partners, under the style of Watt, Burke & Co., in which he states that, in 1838, a settlement was made between him and Watt, Burke & Co., of accounts which had been running and open for many years, and complainant gave his notes for the balance which was found to be due by him to defendants; charges said notes to have been taken for a larger sum than was actually due, and payable to Burke alone, when his dealings had been with Watt, Burke & Co., and to have been so taken in order to have suit instituted in the United States circuit court; that suits were accordingly instituted in said court, and, in the fall of 1839, owing to the negligence of complainant's counsel, judgment by default was taken for $2990.81; that this judg. ment was enjoined by complainant on the chancery side of said court, and an investigation sought of the accounts, prior to the date of said notes, between the said parties; these matters were compromised, and his bill dismissed in 1840, when an agreement was made between them to this effect, - that this judgment, and also one in favor of Fisk, should not be pressed against complainant, but that complainant should ship his cotton, as before, to defendants; they should transact his business as before, and that the net balances in complainant's favor should be annually applied by defendants to the payment of said judgments; in consequence of all which, complainant agreed to waive any objections to said judgments, and to pay the same as proposed; that complainant shipped cotton to defendants, and in
Watt et al. v. Conger.
July, 1841, had in defendant's hands $18,320.22 ; in June, 1842, he had a balance of $26,433.40 in defendant's hands.
The bill gives statements of the overcharges of defendants in their accounts, by correcting which he insists that this balance of $26,433.40 would be increased. That defendants did not credit the judgment held against him with this balance so due, but only with $6252.51. That since June, 1842, and prior to July, 1844, complainant had shipped to defendants cotton worth $45,000, and this, added to the balance aforesaid, exceeds $70,000. Yet, since July, 1844, defendants have sold, under the judgment aforesaid, rendered in 1839 in the United States circuit court, ninety valuable slaves; charges said sale to have been brought about by Watt's agency. That at the date of, and prior to, said sale, complainant was indebted to several creditors in various sums, and from Watt's representations complainant was induced to believe that some $20,000 were still due on the Burke judgment.
Complainant “was threatened with coercive steps in relation to various of these claims.” Watt suggested to complainant that he could induce one of complainant's creditors (Mr. Fisk) to wait, who had a mortgage on land and slaves to secure his claim, and proposed that the marshal should make a levy on some ninety slaves, to satisfy the balance alleged to be due on the Burke judgment; that they should be sold under the judgment and purchased in by Watt; that Watt & Co. would then return them to complainant, “ to remain in his employ, and that thus, by the labor of the negroes, thus secured from levy, to satisfy other claims by this sale, and the labor of those mortgaged to Fisk, complainant would be able to pay the balance due Burke and Fisk, and at the same time secure himself a home.” Confiding in this, complainant assented to the levy. At the sale, thus made, a lot of slaves was struck off to a bystander, when Watt came to complainant and said, " that it was policy to allow some to be thus disposed of, as it showed that he (Watt) was not compelled to buy them in, and thus the balance would be bought in at $10,000 less than if the bystanders were to suppose they could run them up on said Watt, and, as a con
Watt et al. v. Conger. sequence, complainant would have a greater number of hands protected from further annoyance, under the arrangement said Watt had proposed.” During the whole sale complainant was induced to think Watt was acting as his friend, and therefore took no interest in obtaining bidders, or in endeavoring to receive the full value for his said property, and permitted it to be bid off at a price far below its value.
States that said negroes were not returned to complainant's plantation after the sale, but that next day, two persons called as agents of defendants, with the information, that, in order to avoid difficulties with other creditors, it was necessary that complainant should leave the plantation, with his family, as Mr. Watt had ascertained that unless he or his agents were in possession of the plantation when the slaves were returned, he would not be able to hold them against other creditors; and therefore proposed that complainant should, for a time, leave the place in charge of defendant's agents, which complainant did, and went to Kentucky. After his departure, Watt aided and countenanced a sale of the land, &c., under Fisk's mortgage, which was made at a great sacrifice, under the decree in favor of Fisk; and that defendants took off the negroes so purchased by them, under the fraudulent and delusive pretence that the purchase was intended to put it in complainant's power to work out of debt.
States that the sacrifice at the marshal's sale in 1844 was some $20,000, and it would not have taken place but for Watt's deceit, &c. That said slaves, so purchased by Watt, can only be held by defendants as trustees for complainant. That if the terms of the agreement of September, 1840, had been carried out by defendants, the judgment of Burke would have been paid, or nearly so; and that the admitted balances on hand to complainant's credit would have extinguished, and, in equity, did extinguish, the judgment, before the sale of July, 1844; and that said sale is void and should be set aside, and the property, so purchased, held as trust property, and should be delivered up, with hire, or paid for.
States that in July, 1844, complainant sold to Mr. Chaplain,
Watt et al. v. Conger. Big Black Island, in payment of which, Chaplain gave his note. Said note was indorsed by Watt, and placed in the hands of a third party, until the title should be made. Complainant assigned the note; and after making the title, his assignee called on the person holding said note therefor, and as he was about to deliver it, Watt forbid it, unless complainant would credit on said note $1612.57, being an alleged account, held by Watt, against complainant, and for which Watt threatened tedious litigation unless said credit was allowed ; and complainant, being obliged to use said note, had to allow this credit, in order to obtain possession thereof; avers that he did not owe to Watt this sum of $1612.57.
Complainant examines the various items of the account before mentioned, of $1612.57, which he had paid by allowing a credit on said note of Chaplain's to that amount. States that defendants charged usurious interest on said judgment by compounding the same, as appears by exhibits to the bill, and submits that upon a reference to a commissioner he is entitled to a credit to that extent, with interest thereon. That Watt offered and gave him his draft for $1500, on Watt, Burke & Co., at Natchez, which he stated would be cashed; that this was about the time of the sale of 22d of July, 1844; this draft complainant did not present for some time, and when it was presented by Capt. Pease, to Watt for payment, said Watt took possession of it and kept it, and never did pay it. That the balance shown by defendants to exist in favor of complainant, in June, 1812, and of $40,000 paid in cotton in the two following years, and the proceeds of the sales of the negroes in 1844, all have been absorbed in this judgment, and that though defendants during this time may be entitled to some credits, still such credits could not consume the balance in defendants' hands, belonging to complainant. That defendants have not carried out the agreement of 1840, crediting the judgment of Burke with the cotton delivered, and allowed him the benefits and advantages, under which defendants induced the acquiescence of complainant in the sale of his said ninety negroes, in July, 1844, and have refused and neglected to place to the credit of complainant, on said judgment, various amounts, &c., heretofore mentioned ; and complainant