Unknown County MsArchives Court.....Nichols, & Cobler Vs Daniels 1834
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 10:20 pm

Source: Reports Of Cases - Mississippi
Written: 1834

June Term 1826.

NICHOLS & COBLER, vs. DANIELS, admr. of DANIELS.

An answer responsive to the bill, can only be rebutted by the testimony of two 
witnesses, or of one witness, and strong corroborating circumstances.

The rule is otherwise as to matter in avoidance, stated in an answer.

If a bill charges, that a bond was executed by the defendant, an answer 
admitting the execution of the bond, but averring payment, is no evidence of 
the payment, unless the defendant was interrogated as to that point. 

OPINION OF THE COURT by the Hon. I. CHILD.

The experience of some years has pretty satisfactorily shown, that there are 
many imperfections in the organization of the supreme court; developed by the 
test of practical operations. The superior court of chancery is composed of 
but one judge, who regularly holds four courts in each year and in many 
instances with very crowded dockets. Selected on account of his great 
experience and learning in practice and theory, the judge of this court 
possesses peculiar advantages. The law and doctrine of contracts attract his 
undivided attention. It is for him to weigh the evidence where there is a 
confliction of testimony, and he has to judge of the credibility of witnesses. 
The practice and rules of decision in courts of chancery are his every day's 
concern and occupation, and he holds the peculiar province of unkenneling 
fraud, upon, the grounds of irresistible inference, and public policy and 
utility, and he is almost constantly conversant in matters to which the judges 
of the courts of law are practically strangers.

The supreme court of the state is composed of four judges, who are also 
circuit riders at nisi prius, and each of them holds annually from ten to 
twelve courts of law in his circuit, without chancery jurisdiction. In these 
courts it is the peculiar province of the jury, in every case, to determine 
all matters of fact, to weigh the evidence, decide upon the credibility of 
witnesses, and settle the character of transactions alleged to be fraudulent, 
leaving to the judges but a limited sphere of action, to determine upon the 
competency of witnesses and pronounce the law arising upon the facts found by 
the jury. Rusty and inexperienced in chancery practice and the rules of 
decision in courts of equity. These judges are placed upon the supreme bench, 
where two only of them, and not unfrequently the two youngest, as has happened 
in this instance, constitute a court of errors and appeals to revise and 
correct the decrees of the superior court of chancery in the dernier resort. 
This is certainly a radical defect in the judicial system of the state, and 
there are considerations, sufficiently weighty, to inspire great diffidence on 
the part of this tribunal, in behalf of the chancellor, and high respect for 
the decision we are required to review, and when compelled to differ in 
opinion with the court, we cannot but venerate its decrees, even amid the 
reversal that awaits them. The complainant below in this case, comes before us 
in the two-fold character of administrator and a judgment creditor; the latter 
however, is not sustained by the evidence, and he must therefore stand in the 
light of an administrator alone, as it does not appear that creditors 
complain, or are made parties to the suit. The prayer is for discovery and 
relief. Both the stating and charging parts of the bill are very full, and 
require much more by way of direct answer, from the defendant Nichols, against 
whom the gravamen of the charge is made, than a prudent and cautious pleader 
would have exacted. If an incautious pleader requires too much on the ground 
of discovery, and the answer denies all the circumstances upon which the 
equity is founded, such credit will be given to the answer, that it will 
require of the complainant the production of the testimony of two positive 
witnesses, or one witness and strong circumstances, to do it away and entitle 
the plaintiff to a decree in his favor. The complainant's bill in such cases 
can have no weight, although sworn to for the purpose of obtaining an 
injunction, because a plaintiff is in no case permitted to make evidence for 
himself.

I do not think that any material part of the answer of Nichols can be 
considered as matter in avoidance, the whole being a denial of the fraud 
charged in the bill of discovery. I will state a case, for example - should a 
complainant require of a defendant to disclose in his answer whether he had 
executed a bond for a thousand dollars, and the defendant, in his answer, 
should admit the execution of the bond, but go on to state it had been 
discharged by the payment of the money; this latter averment in the answer, 
would be in avoidance, and might be proven; but should the complainant 
incautiously require the defendant to make a discovery, as to the payment in 
discharge of the obligation, I think the reverse of the proposition would hold 
good, and the dangers of perjury be equal in either event.

The answer of Nichols denies the fraud, and is satisfactory upon all points, 
that he came in possession of Maben's note by transfer from Daniels, honestly 
and for a valuable consideration; that he was liable by endorsement to Hyde, 
in the amount of one hundred dollars for Daniels; that he paid that much for 
Daniels, and took up the note, which is made part of the answer, marked 
exhibit, A, and speaks volumes in favor of the fairness of the whole 
transaction.

The answer of Cobler does not materially vary the case with regard to Nichols, 
but merely goes to shew that this defendant is a bone fida holder for valuable 
consideration without notice. Almost, every material circumstance in the 
deposition of Hamilton goes to corroborate the answer of Nichols, and 
strengthens the presumption that Nichols did nut obtain Mabin's note, 
surreptitiously or by fraud. According to this witness, Daniels and Nichols 
had a settlement on the road to Tennessee, when Daniels handed four hundred or 
five hundred dollars to Nichols, a part to be retained by Nichols to pay 
himself, and the residue to be applied to the use of Daniels's family. This 
settlement took place on the road, when Daniels was in bad health, and about a 
week before he died, and although the witness does not recollect that the note 
was transferred at that time, the inference is in favor of such a conclusion, 
because Nichols would have had no other opportunity of obtaining it. He was 
not in company with Daniels for a week before his death, and after his decease 
his papers were conveyed to his family in Tennessee, by a man by the name of 
Tooly.

If we are to make our calculations upon the most accurate principles of 
computation, it will appear, that the amount paid by Nichols for Daniels 
exceeds one thousand dollars, without interest, and that, the amount of 
Mabin's note was about seven hundred dollars. This will leave a small balance 
due to Nichols, which accounts for the money he received of Daniels on the 
settlement. It is said, moreover, by one of the witnesses, that there was a 
suit at law, in the state of Tennessee, which terminated in favor of Nichols; 
and that Nichols paid over to the use of Daniels's family, the surplus fund 
placed in his hands for that purpose. If this be true then the most probable 
subject matter of controversy in that action, is, that it was a suit brought 
by the legal representatives of Daniels vs. Nichols for the recovery of this 
amount, of Mabin's note. If a jury of twelve men gave a verdict in favor of 
Nichols, upon the evidence of Mabin and Hamilton, how can the chancellor 
decree against him upon the same evidence, with the entire weight of Nichols's 
answer thrown into the scale - presenting a much stronger case in favor of 
Nichols in this court, than it could have been at law. From the testimony 
before us, it is obvious that the deposition might have been made more full 
and satisfactory, if the plaintiff had availed himself of the evidence of 
Hide. The answer of Nichols would have been either strengthened and supported 
or very much impaired and impeached. Mabin's note, too, might have been made 
an exhibit in his answer, thereby removing all obscurity, doubt and intricacy 
that now broods over that branch of the controversy. As the case presents 
itself, however, for consideration, the complainant is driven to a single 
solitary circumstance upon which alone he can rely for the foundation of a 
decree in his favor. It is to be found in the deposition of Mabin, and must 
have been conclusive on the mind of the chancellor: It is this: when Nichols 
called upon Mabin for the payment of his note given to Smith, Mabin hesitated, 
when Nichols, for the purpose of obtaining a partial payment and a renewal of 
the note for the residue in his own name, stated to Mabin, that he was 
collecting the money for Daniels's children. The plain, blunt, honest, and 
even indecorous manner of this witness, perhaps too, had its influence; for 
the deposition, if true, would have convicted Daniels of perjury, and perhaps 
subjected the property in his own lands to the payment of Daniels's debts.

Where a party can establish his claim by the testimony of witnesses, there can 
be no foundation for a bill of discovery; and if in this case, the 
administrator of Daniels, had brought suit at law against Nichols for money, 
had and received, this court would not have sustained a bill of 
discovery, "lite pendente," tor the purpose of using the answer of Nichols, as 
evidence on the trial at law; because, in that action the testimony of Mabin 
would have been sufficient to shew the possession of the note in the hands of 
Nichols, as well as the receipt of the money by him. The only possible equity 
in the bill, is to be found in the charge of fraud, and this is fully sworn 
away by the answer of Nichols. But one of two courses remained to be adopted 
by the chancellor — either to have dismissed the bill for want of 
jurisdiction, or as all the defendants had submitted to answer, without 
demurring to the relief, to retain the bill for the purpose of settling all 
matters in dispute, by a final decree. The latter course has been adhered to 
and all the consequences of judicial inquiry follow in settling the principles 
upon which the case might be decided according to the established rules of 
decision in courts of equity. Upon this view of the case, then, whatever may 
be our belief as men, where are we to look for the positive testimony of two 
witnesses, or of one witness and strong circumstances, to overthrow the credit 
which the law attaches to the answer of Nichols extorted from his conscience 
by the complainant himself? Is it to be found in the deposition of the two 
Fletchers? They are silent on the subject. In those of Cobler or Hamilton? By 
no means, for these are both in corroboration of the answer. The case then 
reposes upon the single circumstance, adverted to by Mabin in his deposition. 
That Nichols's out-of-doors statements and admissions varied and differed from 
his answer on oath, who is made a witness by the complainants, for the 
purposes of discovery. How then can the administrator of Daniels, purely as 
such, who, if Mabin's deposition be true, was a bankrupt, adding crime to 
insolvency, and perjury to fraud, expect a decree against Cobler, a bona fide 
holder, for a valuable consideration, without notice? Such a decision would 
overthrow the best established principles of law, and undermine the 
foundations upon which property reposes. I am therefore of opinion, that the 
decree of the superior court of chancery be reversed, the injunction 
dissolved, and bill dismissed, at the costs of the complainant below.

R. J. Walker, for complainant.

D. S. Walker and S. M. Grayson, for defendant.

Additional Comments:
Reports of Cases Adjudged in the Supreme Court of Mississippi; 1818 - 1832; 
By R. J. Walker, Reporter of the State. Natchez: Printed at the Courier and 
Journal Office, 1834.

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