Jefferson County MsArchives Court.....Lee, C.S. June 1818
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

C. S. LEE, Adm'r of MOSES LEE vs. JOSEPH MONTGOMERY.

An injunction requested upon principles apparently of justice and equity, 
should never be refused in the first manner.

When the facts stated in complainant's are denied in respondent's answer, they 
must be proved by two credible witnesses, or one witness, and strong 
corroborating circumstances.

If the equity of complainant and defendant be equal, the courts of chancery 
will not interfere.


OPINION OF THE COURT—By THE HON. POWHATTAN ELLIS.

This cause was transferred from the superior court of chancery for the western 
district; the chancellor having been of counsel for the complainant. The 
complainant sets forth in his bill, that some time in the year 1804, Moses Lee 
and Joseph Montgomery were partners, in buying and selling a drove of Spanish 
horses; and about the same time, or in the year 1805, they closed their 
partnership concerns, when it was found, the said Moses was indebted to said 
Montgomery, in the sum of one hundred dollars and upwards, and some time in 
the month of February, 1807, the said Moses paid the said debt in full, as was 
afterwards acknowledged by said Joseph. It is further stated, that Moses Lee 
departed this life, some time in the fall of the year, 1807, and that 
complainant administered upon his estate. And that in March, 1809, the 
defendant revived his liquidated claim against the estate of deceased, and 
instituted his action against the representative, in the county court of 
Jefferson; and notwithstanding every legal exertion was made to the contrary, 
a verdict was rendered for the plaintiff, for one hundred and thirty dollars 
and costs of suit. Whereupon an appeal was taken to the superior court of 
Jefferson county, and the judgment of the county court virtually affirmed, by 
the rendition of a second verdict in favor of the plaintiff, assessing his 
damages to one-hundred and forty-seven dollars. In the complainant's bill, 
there is a prayer for general relief. The answer admits, that some time in the 
year 1803 or 1804, the intestate of complainant, and defendant, were engaged 
in buying and selling a drove of Spanish horses; and that in 1807, and not in 
1805, as stated in complainant's bill, a settlement was made, when it was 
ascertained, Lee was indebted to Montgomery, in the sum of one hundred and 
forty-seven dollars, for which he had to institute suit, and finally 
prosecuted his claim to a judgment, in the superior court of Jefferson county, 
as stated in complainant's bill. The respondent further states and "expressly 
denies that the deceased, Moses Lee, or his administrator since his death, 
have ever paid the debt," mentioned in complainant’s bill as having been 
liquidated by the deceased long anterior to his death. The defendant further 
states and denies all the material allegations in complainant’s bill, not 
herein before expressly admitted, and prays to be dismissed hence with his 
costs in his behalf most wrongfully expended and sustained. General 
replication by complainant to respondent’s answer.

The evidence introduced on the part of complainant to support the allegations 
set forth in his bill, is the deposition of Philip Briscoe, taken on the 17th 
day of February, 1817, which states, that in February or the first of March in 
the year 1807, Moses Lee called at my house and informed me that he was going 
down to settle with Joseph Montgomery, and that he must call on C. S. Lee to 
get the money he owed to Montgomery. That on said Lee’s return, he told said 
deponent, he and Montgomery had settled, and that some short time afterwards, 
Mr. Montgomert called at my house, and requested me to fetch him down a 
certain horse that ran at Mr. Logan’s, and stated, that he and Mr. Lee had 
settled, and that he had given up a horse that fell to Montgomery in the 
settlement, and it is the impression of this deponent, that Montgomery stated 
to him, the horse was received in full of all claims he had against Lee.

The testimony introduced on the part of the defendant, is in the deposition of 
Gideon Higdon, taken on the 17th day of December, 1817, which states, that in 
December, 1806, he was present with Moses Lee and Joseph Montgomery, in the 
town of Port Gibson, when they called on deponent to witness the settlement.— 
Moses Lee then acknowledged to owe Joseph Montgomery one hundred dollars and 
upwards, but precisely how much over he could not recollect. And at the same 
time, said Lee acknowledged that there was a certain dunn horse belonging to 
them, to be given up to said Montgomery, exclusive of the above named sum of 
money; and soon after the said Moses Lee called at Joseph Montgomery’s, and 
again in my presence acknowledged the existence of the debt. From this 
statement of the case, it is manifest that the pretentions of complainant as 
set forth in his bill, and supported by the evidence of Philip Briscoe, are 
reduced within very narrow limits, when confronted by the answer of the 
respondent, and the testimony of Gideon Higdon. The chancellor who granted the 
injunction, no doubt acted correctly, as a very strong case was presented for 
his consideration. When an appeal of this kind is made to the court of 
chancery, in the exercise of its high discretionary powers, based apparent1y 
upon the principles of justice and equity, the applicant will never be turned 
away and refused admittance into the temple, where all classes and conditions 
of society are permitted to seek relief, unless they wish to enter covered 
with their own iniquities. All the material allegations set forth in 
complainant’s bill, have been denied by respondent's answer. In such a case, I 
believe it is a well established principle, in courts of equity, those 
allegations~ must be supported by the testimony of two credible witnesses, or 
facts, proved by one witness, and such collateral circumstances as will create 
a strong presumption in favor of the equity of complainant. How stands the 
case here? It rests upon the evidence of two witnesses only, the one for 
complainant, the other for defendant. The testimony of Briscoe does not 
support the allegation of the liquidation of the debt from Lee to Montgomery, 
but he simp1y states it as his impression, that the respondent agreed, upon 
their final settlement, to take the dunn horse which ran at Logan’s, in full 
of all claims. The evidence of Higdon is of a different character altogether. 
He states expressly, the dunn horse which belonged to the concern, was to be 
given up, exclusive of the money named, for which, a suit was finally 
instituted, and a judgment at law obtained. The evidence of respondent, then 
decidedly preponderates; for the witness speaks positively and directly to the 
terms of the agreement which took place upon the final settlement in Port 
Gibson, and said to have been acknowledged a second time by Moses Lee, at a 
subsequent period. But suppose for a moment, the evidence places the equity of 
complainant and respondent precisely upon the same ground, this court will not 
interfere “as if one party has no more equity than the other, the law must 
take place." 1 Fonb. 312, Mitford, p. 215. Again, there must not only be a 
consideration, as a motive for relief, but it must be a stronger consideration 
than there is on the other side; for if it be only equal, then the balance 
would incline neither way. 1, Fonblanque 312; Blake’s Chancery 405; Johnston’s 
Chancery Reports, 203. If the evidence is to be believed, there is no 
consideration or inducement moving the chancellor to interfere between the 
parties.

Let the injunction be dissolved and complainant’s bill be dismissed with costs.

Judges HAMPTON, WINSTON and STOCTON concurred.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 109-112.

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