Elam, et al. vs. Garrard.

Defendant demurred to said bill, for the want of proper and necessary parties, and moved to dismiss the same.

The Court sustained the demurrer and dismissed the bill; whereupon complainants excepted and assign error.

BLANDFORD & CRAWFORD, for plaintiffs in error.

WELLBORN, JOHNSON & SLOAN, for defendant in error.

By the Court.-MCDONALD J. delivering the opinion.

Every person interested in the trust estate, ought to have been made a party to the suit. It is the object of a Court of Equity to do complete justice, and settle forever controversies before it. It cannot be done in such a case as that under consideration unless all the parties interested in the subject of the suit are before the Court. A person not before the Court as a party, and who does not come in as a party at some stage of the proceeding, cannot be bound by the decree. If, after a decree in this case, one of the other cestui que trusts, not a party, brings a suit against these complainants, charging that his portion of the trust estate had been reduced unjustly by the decree, what is to prevent him from having a hearing? He is no party. The rule is a wise and a good one, and prevents multiplicity of suits in regard to the same. subject matter. Our statute makes an exception in suits for distribution of estates. Cobb's Dig. 468. But it makes no further innovation on the rule. the Court below, but with this instruction to the Court, that the complainants may on the payment of all costs which have accrued, re-instate their case and amend their bill so as to make the necessary parties thereto, serving each with a copy and subpoena to appear and answer.

We affirm the judgment of

Judgment affirmed.

Williams & Co. vs. Nicholson.

R. S. WILLIAMS & Co., plaintiffs in error, vs. A. P. NICHOL SON, defendant in error.

[1] If there are equities against a negotiable note, it is to be presumed that the transferree of it had notice of them, provided he became such transferree, when the note was overdue.

[2] It may be to the interest of one of two joint makers of a note, that the note should not be set aside by the other. When it is, he is a proper party defendant to a bill by the other, to set aside the note.

In Equity, from Decatur county. Decision by Judge ALLEN, April Term, 1858.

Alexander P. Nicholson filed his bill, alleging that R. S. Williams and Co., merchants of New York, sued him and Jacob Zeigler, merchants, under the name of Nicholson & Zeigler, ou a promissory note dated August 22d, 1855, payable on demand to William S. Beall & Co., or bearer, for $9759 16, and transferred since its maturity in the name of W. S. Beall and Co., to said R. S. Williams & Co; that said note is of no effect, and not obligatory or binding upon him. It fact, it was never strictly his note, but that the same was signed by said Zeigler, and by him made payable to said W. S. Beall & Co., or bearer, without his, Nicholson's, knowledge, approbation, or consent and without good or valuable consideration being paid to Nicholson individually, or as a partner of the firm of Nicholson and Zeigler, or to said firm by said W. S. Beall and Co., or any one else, either before or since the date of said note. That in the month of August, 1855, William S. Beall, deceased, then in life, sold to Nicholson & Zeigler a stock of goods then in store in the town of Bainbridge, consisting of a variety of old and unsaleable remnants left on hand from a mercantile business of long standing, say ten years; the contract was entirely verbal. No intimation was made that there was such a firm as William S. Beall & Co., and Nicholson alleges he does not believe such was the case, or that any person was part owner with said Beall of the goods.

Williams & Co. vs. Nicholson.

The contract was that Nicholson & Zeigler should take the old stock of goods, and pay for them such price as would enable them to make a reasonable profit on them. And as inducement to the tra le, the said Beall promised and agreed that in the course of twelve or eighteen months he would. join them as a partner in said business; that they would not be called on to pay the money before that time, when a portion if not all the amount would remain in the firm as the capital stock of said Beall, which Nicholson confidently believed would be done as it ought to have been, but was not. The original New York cost, with expenses added, of said old goods when new and fresh, amounted to $9759 16, and the stock book which was left with Nicholson & Zeigler by said Beall, in lieu of an invoice or bill, will show the cost and expenses of said goods to be as charged, but that one John M. Potter has since taken it away without the knowledge or consent of said Nicholson; and it is his belief it is now in the possession or control of said Potter.

That although the original contract was, that Nicholson and Zeigler should not pay the full cost with expenses added on said stock of goods, but such price as would allow them to make a reasonable profit thereon, yet John M. Potter did, on or about the 22d day of October, 1855, come into the storehouse of Nicholson & Zeigler and hurriedly and privately, secretly and in fraud of Nicholson's rights, obtain from Zeigler the signature which appears to said note, without the knowledge and consent of Nicholson, or the slightest suspicion on his part that such a thing was being done, contrary to the wishes of Nicholson, and the terms of the contract, and equity.

That William S. Beall and Co. were not the owners of the stock of goods at the time Nicholson and Zeigler bought them; that said firm of Wm. S. Beall & Co. had long before dissolved, and while in existence was composed of William S. Beall and John M. Potter, and in the year 185- the

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Williams & Co. vs. Nicholson.

said Potter retired, and Benjamin F. Bruton came in, and the firm was then Beall & Co; and afterwards Bruton sold out his interest to said Beall, and the business was then conducted by Beall; and that the goods belonged to Beall, and Potter was not then a partner of said Beall, nor a part owner of said goods; that the note given for said goods should not have been for more than an amount to allow a reasonable profit thereon; that it ought not to have been made payable to Wm. S. Beall & Co., but to Wm. S. Beall, for good reasons; that Nicholson and Zeigler made sale of said goods to the best advantage, and that the proceeds thereof did not amount to more than $7000 00.

That Zeigler and Potter not only did secretly and fraudulently fix up said note to Wm. S. Beall & Co. for too large an amount and without any authority in either or both of them to receipt the stock book or invoice of said goods, thereby showing a settlement by note, but did, under a collusive agreement, attempt to effect another fraudulent purpose, towit, prevent the individual creditors of Wm. S. Beall from a successful use of the process of garnishment against Nicholson & Zeigler. And it was agreed between Zeigler and Potter, during this transaction, that said note should nor would not be considered a final settlement of the matter, but that it should be subject to correction and a proper deduction at a future time; and that Potter had great control and influence over Zeigler, and used it to accomplish the aforesaid fraudulent transaction, and showed a great desire to correspond with Zeigler individually concerning the business of the firm of Nicholson & Zeigler; and wrote all letters save one (and they were many) to Zeigler instead of to Nicholson & Zeigler; thus showing his desire to correspond, advise, and contract secretly with Zeigler without Nicholson's knowledge; and Zeigler responded in like manner. That after the purchase of said goods, Beall made a large account with them, say $1772 96, and the account was made with the understanding that it should go to the credit of Nicholson &

Williams & Co. vs. Nicholson.

Zeigler's account with Beall for said purchase of goods from him.

That some time in the month of May, 1856, Potter came to him, as collecting agent for R. S. Williams & Co., and presented said note for payment, which was positively refused, Nicholson repudiating it entirely, and said, if the note was payable to the proper parties, and the invoice book marked settled by the proper authority, still it was for a large sum too much. Potter insisted, in conjunction with Joseph Law, an attorney who was then the retained counsel of Potter and the said R. S. Williams and Co. for bringing suit on this note, of which your orator was not apprized at the time, that Nicholson should pay it. They succeeded in getting from him a payment of $5519 50 in notes and accounts, which amount, after deducting any error that might appear on settling said accounts. and paying (unless paid by Nicholson & Zeigler themselves) a balance due from them to Williams & Potter and Converse, Todd & Co., of above $200, was to be applied to their note of August 22d, 1855.

That neither Potter nor Williams has placed any credit upon said note, nor paid the balance due Williams & Potter, and Converse, Todd & Co. That the said note, dated 22d August, 1855, was drawn and signed in the month of October, 1855. Nicholson & Zeigler were diligently and industriously employed two years in selling these goods, and their services were reasonably worth $2,000. That R. S. Williams & Co. has sued Nicholson & Zeigler for $178 33, for rent of the storehouse used in selling these old goods. That a reasonable profit on goods in Bainbridge is 25 per cent. per annum, and in accordance with the original contract, Nicholson and Zeigler are entitled to $1400 as a reasonable profit; and that the same ought to be deducted from the said amount of $7,000 00, this being the gross amount of sales as aforesaid, and that the amount for the rent and for the services of Nicholson & Zeigler should be deducted from them, leaving a balance against said Nicholson & Zeigler of $3,121