writ of attachment; and I furthermore hereby direct said sheriff and clerk, that all proceed 170*] ings *had, or to be had, under said attachment, be dismissed and discontinued. (Signed) John M. Perry,

Agent for L. P. Perry, Clayton, Tiffin, J. H. Martin, Geo. W. Grove. Received on the 27th November, A. D. 1839, and served on the 28th of the same month and year, by handing a certified copy of this writ of attachment to the defendant, Samuel Anderson, in person, at the court-house in Richmond, and then was instruct[ed by] the plaintiff in this case not to levy the attachment, but to return it to the clerk's office, as will be seen by reference to the within order from him. Service $2.

The defendant came into court, and for answer to plaintiff's petition in this suit filed, denies all and singular the allegations therein contained and set forth. And for further answer thereto he says, that the notes mentioned and appended to plaintiff's petition were executed and delivered to the petitioner, as set forth therein; also, that the mortgage set forth was executed as set forth, and for the purposes as shown in said mortgage.

This defendant for further [answer] sets forth, that on the 23d day of November, A. D. 1839, John N. Donohue, deputy United States marshal, in virtue of a writ of fieri facias, then in his hands, which issued from the Circuit Court of the United States for the Ninth Circuit, in the Eastern District of Louisiana, at the suit of Mosely and Bouldin against John M. Perry and Lilburn P. Perry, seized upon the several promissory notes mentioned in, and appended to, plaintiff's petition, and the mortgage securing the same; and afterwards, to wit, on the 4th day of January, A. D. 1840, proceeded to sell the said notes and mortgage, in satisfaction of the said fieri facias of Mosely and Bouldin v. John M. Perry and Lilburn P. Perry, when this defendant became the purchaser of said notes and mortgage, at the last and highest bid. All of which will more fully appear by the annexed copy of said marshal's sale, which is herewith filed, and made part of this answer.

This defendant further shows, that, at the time of the seizure of the said notes and mort171*] gage, they were due and payable to Lilburn P. Perry only, and were his property at the time of said seizure by the deputy-marshal as aforesaid. And And defendant further shows, that the indorsement made on the back of one of the notes due on the 1st of January, 1842, was not made at the date thereof, to wit, on the 22d of October, 1839, but was made after the said seizure so made by the marshal as aforesaid; and said assignment was only dated for the purpose of evading said seizure. All of which this defendant will be prepared to show on the trial of this suit.

This defendant therefore shows and alleges,

that by virtue of the purchase made by him at the marshal's aforesaid, the said debt, mentioned and shown by said note sued on, and the mortgage securing, have been discharged and extinguished by confusion, and by this defendant's becoming the owner of the said debt and mortgage.

Defendant therefore prays that plaintiff's demand be rejected, and that the notes sued on and mortgage may be decreed to be discharged and extinguished by the confusion created by said sale, as before set forth. (Signed) John B. Bemiss, At'ty for def'ts. On the 18th of May, 1841, the counsel of Perry made the following motion: Lilburn P. Perry

V.

Samuel Anderson

that this suit be dismissed at his costs. Plaintiff by his undersigned counsel moves Martin, Richardson & Stacy, Attorneys. And on the 20th of May, 1841, the following was entered on the minutes of the court: Lilburn P. Perry

V.

Samuel Anderson

Motion filed by plaintiff's counsel to dismiss this suit at plaintiff's costs.

Ordered that the motion to dismiss be sustained, and that this suit be dismissed at plaintiff's cost, by consent of the parties. It is also ordered, that the three notes on file in said suit be not withdrawn therefrom by either party, unless upon an order of this court, previously and contradictorily rendered with the other party, after due notice to him; and defendant has leave to withdraw documents marked A, by leaving a certified copy with the clerk.

Lilburn P. Perry Samuel Anderson.

V.

The defendant herein moves this honorable the notes sued on in above entitled suit should court for a rule on plaintiff, to show cause why not be given up to him upon his leaving a certified copy of said notes, they being the property of said defendant, etc.

Bemiss & Pierce, Att'ys for defendants. Judgment.

By reason of the law and the evidence in this case, and by reason of a motion of plaintiff's counsel thereto, it is ordered, adjudged and decreed, that judgment be rendered as if nonsuit in this case, and that the notes herein filed be not withdrawn until leave [be] obtained; and that the plaintiffs pay the costs of suit to be taxed. Read and signed in open court, this 3d day of June, A. D. 1841.

B. G. Tenny, Judge 9th Dist. The cause remained in this position for nearly a year, a bill having been filed in the meantime, viz., on the 21st April, 1842, in the Circuit Court of the United States, by Tiffin and Perry against Anderson and Shelton. bill (which is the present case) will receive particular notice after the history of the proceedings in the Parish Court shall have been fin. ished.

This

391

The plaintiff, Lilburn L. Perry, for cause against the rule taken upon him by Samuel Anderson, why the notes sued on should not be withdrawn and delivered up to said Anderson, shows, that the plaintiff has taken a voluntary nonsuit in the above cause, after issue joined, which issue has never been either tried or decided; but that plaintiff now stands on the record as the owner of said notes, and he denies that said Anderson can have an order of this court for the delivery to him of said notes until it shall have been decided in a suit, regularly brought for that purpose, that said 173*] Anderson is the owner of *said notes, which issue he denies can be tried upon the said defendant's rule to show cause; wherefore, and for other reasons equally apparent; he prays that defendant may be discharged at his

costs.

D. S. Stacy, Att'y for pl'ff.

On the 19th of May, 1842, the court overruled the above exceptions, and ordered the trial of the rule to proceed; when a motion was made on the part of Perry for a continuance, and an affidavit of John M. Perry filed in support of the motion. The affidavit stated the absence of a material witness, viz., Crawford, the attorney in the suit of Mosely and Bouldin against John M. Perry and Lilburn P. Perry, and that he expected to prove by him that he, Crawford, put in an answer by mistake for the said Lilburn P. Perry, and that he said Crawford, never had any authority from the said Lilburn P. Perry, or from any duly authorized attorney or agent of said Lilburn P. Perry, to put in said answer, or to make any answer or plea of any description whatever, or in any manner whatever to represent said Lilburn P. Perry in said suit. John M. Perry also filed the following affidavit:

"John M. Perry, agent and attorney in fact of the plaintiff in the above entitled suit, makes oath, that he is the agent of Lilburn P. Perry, the said plaintiff; that said Lilburn P. Perry is absent at this time from the State of Louisiana, and he, said Lilburn P. Perry, resides in the State of Missouri and has resided in said State of Missouri for several years past; that Lilburn P. Perry has not been within the vicinity of the State of Louisiana for nearly or quite two years past, and that ever since the said Lilburn P. Perry left the State of Louisiana, which affiant believes was in the fall of the year 1838, and became a resident in the State of Missouri; affiant has been, as he is now, the agent and attorney in fact of the said Lilburn P. Perry.

"Affiant swears, that not until Wednesday, the 18th day of May, in the year 1842, was affiant apprised that any such motion as that

now before the court, made on the part of Samuel Anderson, had been made, nor had affiant any knowledge that any such motion was intended to be made on the part of said Anderson, or anyone claiming under him.

"Affiant swears further, that Bennet A. Crawford, who resides in the city of New Orleans, is a witness whose testimony is material for the substantiation of the claims of the said Lilburn P. Perry on the trial of said motion; that the said Lilburn P. Perry cannot go safely to trial without the evidence of said Crawford, and that he expects to prove by said Crawford *such facts as will show the said Ander- [*174 son has no title in and to said notes.

"Affiant swears, also, that since he was informed of the existence of said motion, he has not had time to procure the testimony of said Crawford, and that he cannot procure said testimony of said Crawford in time to go to trial at the present term of this court, but he, affiant, expects to procure said testimony of said Crawford so as to go to trial at the next term of this honorable court; and finally, that this affidavit is not taken for the purpose of delay, but only to obtain substantial justice. "John M. Perry."

The court having ordered the trial of the rule to proceed, the counsel of Perry declined to make any further appearance, and took a bill of exceptions which was signed by the judge.

Anderson then offered in evidence the proceedings consequent upon the judgment in the case of Mosely and Bouldin against John M. Perry and Lilburn P. Perry, the execution, the sale to Anderson, and the deed to him by the marshal, all of which have been stated above. On the 19th of May, 1842, the court rendered the following judgment:

"On a rule to show cause.-By reason of the law and the evidence being in favor of the defendant, and against the plaintiff, Lilburn P. Perry, and the defendant's answer to the plaintiff's petition, and the evidence being considered, and the defendant Samuel Anderson, having proved to the satisfaction of the court, that he has, since the institution of this suit, become the true and legal owner of the three notes sued on, and the indebtedness set forth in plaintiff's petition having been extinguished by confusion, it is ordered, adjudged and decreed, that the defendant, Samuel Anderson, have judgment. in his favor, and against the plaintiff, Lilburn P. Perry, and that said Samuel Anderson be decreed to be the true and legal owner of the said three notes, the same being extinguished by confusion, and that the same be adjudged and decreed to be delivered up to said defendant, Samuel Anderson, and that the said L. P. Perry pay the costs of this suit, to be taxed. Done and signed in open court, this Thos. Curry.

1842.

"District Judge, Ninth Judicial District." From this judgment an appeal was prayed and granted to the Supreme Court of the State of Louisiana.

On the 3d of December, 1842, Anderson received the original notes from the clerk of the court.

*We must now turn our attention to [*175 another suit.

side of the Circuit Court of the United States. They state themselves to be residents of the city of St. Louis and citizens of the State of Missouri, and file the bill against Samuel Anderson, Robert Anderson, Nelson F. Shelton, Hillery Mosely, and William W. Bouldin. The bill recites the sale to Samuel Anderson, the deficiency in the cash payment, the execution of the notes and mortgage by Anderson, the suit against him by Lilburn P. Perry, the suit against Perry by Mosely and Bouldin, the judgment, the sale of the whole interest to Anderson for $5,000, the foreclosure of Shelton's mortgage with an intent to defraud, and then avers, that, at the institution of the suit by

On the 12th of April, 1841, the judge issued the order, as prayed.

On the 10th of July, 1841, the sheriff returned that he had offered the property at public auction, "and Nelson F. Shelton, Sen., and Robert Anderson, the plaintiffs herein, being present, bid for said property the sum of thirty-six thousand dollars, which being the highest bid or offer made, and being over and above two thirds of the cash valuation of the same, the said property was adjudicated to Nelson F. Shelton, Sen., and Robert Anderson, at and for the said sum of thirty-six thousand ($36,000) dollars, subject to all the privileges and mortgages encumbering the same; wherefore, in virtue of the premises herein set forth, and of the law in such case made and provided, and for and in consideration of the price above described, I, Thomas B. Scott, sheriff as aforesaid, do sell, transfer, and convey unto the said Nelson F. Shelton, Sen., and Robert Anderson, in proportion to the claim of each plaintiff in said writ of seizure, all the right, title, and interest of the said defendant, Samuel Anderson, in and to the before described, and all the appurtenances thereunto belonging, unto them, the said Nelson F. Shelton, Sen., and Robert Anderson, and their heirs or assigns forever.

"In testimony whereof, I have hereunto set my hand, at the parish of Madison, State of Louisiana, on this the sixteenth day of June, eighteen hundred and forty-one, in the presence of Alexander T. Steele and Edmond Cavelier, competent witnesses, who have signed with me, the said sheriff.

(Signed)

"Tho. B. Scott, "Sheriff of the Parish of Madison, Louisiana." It is not necessary to insert in this statement two suits which are inserted in the record, 176*] which were carried on, one in the *Cir cuit Court of the United States by Tiffin, upon his own account, against Anderson, upon three promissory notes, amounting in the whole to $12,065, and the other in a court of Mississippi by Anderson, for the use of Clayton Tiffin, against Austin, Ragan, and Bohannon, upon the note for $18,282, which Anderson had considered a part of his cash payment, as above narrated. Both these suits ended in judgments which produced no fruits.

We come now to the suit in the Circuit Court, which was the basis of the present appeal.

On the 21st of April, 1842, Clayton Tiffin and Lilburn P. Perry filed a bill on the equity

was not a citizen of Louisiana, but of Missouri; that he was never served with process, and never employed anyone to appear for him; that the judgment was thereby wrongfully recovered, and is void; that admitting the validity of the judgment, yet the subsequent proceedings were irregular; that the land and slaves never were the sole property of Perry, and that Anderson knew it; that the first note was specially indorsed to Tiffin as a part of his share; that this was done before it was seized as being the property of Perry. The bill then prayed that the judgment of Mosely and Bouldin might be set aside, that their mortgage might be foreclosed, and for general relief, and for an injunction.

The defendants, Samuel Anderson and Nelson F. Shelton, demurred to the bill for want of equity, which being overruled, they severally pleaded to the jurisdiction of the court, that said Shelton, and all the other defendants except Samuel Anderson, were citizens of the State of Virginia. Upon these pleas, evidence was taken on both sides, and on that evidence the pleas were overruled.

The defendants who had pleaded and Robert Anderson then put in their answers to the bill. The grounds of defense set up and relied upon by the defendants were:

1st. That it was part of their original contract of purchase *that the complain- [*177 ants would receive, in satisfaction of the cash payment, the debt due to Samuel Anderson by John M. and L. P. Perry, and the note on Austin, Ragan, and Bohannon; that complainants knew the drawers and the value of the note, and that, but for their agreement to receive these notes, he would not have given the price at which he purchased; and that, therefore, they have no right to claim of him anything on account of their failure to collect said note of the drawers.

2d. That, before the execution of the three notes secured by the mortgage, Samuel Anderson and John M. Perry gave three notes, for about the aggregate amount of $12,000, to the said Clayton Tiffin, with the understanding and agreement, that thereafter, when the said mortgage notes were executed, one of them was to be given to him for the said three first mentioned notes, which were then to be surrendered up. That this had not been done. On the contrary, the complainants retained all the three mortgage notes, and that said Clayton Tiffin had not only not surrendered the three other notes given to him, but had sued on them

in the same United States Circuit Court, and had recovered judgments thereon, and that, therefore, the mortgage debt ought to be credited by the amount of those judgments.

3d. That Samuel Anderson had, in good faith, purchased and paid for the said three mortgage notes, amounting to $40,000, when seized and sold on the 4th of January, 1840, by the marshal, under execution from the same United States Circuit Court, on Circuit Court, on a judgment therein obtained by Mosely and Bouldin against the said Lilburn P. Perry and John M. Perry, that the said Lilburn P. Perry appeared to that suit by a licensed attorney at law; that all the proceedings in the suit, and in virtue of the execution, were regular and legal; and that the sale under said execution, and his purchase, had been decided to be valid by the District Court of the Ninth District of Louisiana (a State court), in a suit of Lilburn P. Perry against the said Samuel Anderson; and that thereby the said mortgage debt was "extinguished by confusion," as was adjudged by the said State court; and that, on the faith of the validity of said proceedings, the said defendants, Nelson F. Shelton and Robert Anderson, had instituted a suit, in April, 1841, in the said District Court for the Ninth District of the State of Louisiana, on a mortgage in their favor, given to them by the said Samuel Anderson (subsequent, however, to the mortgage given to the complainants), and on the 14th of June, 1841, by virtue of an order of seizure and sale in the said suit, caused the said mortgaged property (the same previously mortgaged to complainants) to be sold by the sheriff, and be178] came themselves the purchasers (at the price of $36,000), and took possession under their purchase. To prove all this, they refer to the record of said suit, and rely on these several purchases of Samuel Anderson, and of Nelson F. Shelton and Robert Anderson, as extinguishing or precluding the claim of the complainants.

*

The complainants filed a general replication. With respect to the third ground of defense, the testimony of Mr. Crawford was taken, who, it will be recollected, was the attorney who appeared for Lilburn P. Perry in the suit against him by Mosely and Bouldin.

Evidence of Mr. Crawford.

1st. Are you a counsel and attorney at law, practising as such at the bar of the State of Louisiana, and were you in the year 1839? He answers, Yes.

2d. Did you appear in your aforesaid capacity in the defense of a suit instituted by Mosely and Bouldin, in 183-, against John M. Perry and Lilburn P. Perry, in the Circuit Court of the United States for the Eastern District of Louisiana?

To the 2d. He answers, Yes.

3d. Will you please state if you ever received any authority, either directly or indirectly, from Lilburn P. Perry, or from anyone on his behalf, to appear and represent and defend his interest in said suit?

To the 3d. He answers, he has no recollection of having received any authority, either directly or indirectly, from Lilburn P. Perry, or from anyone on his behalf, to appear and represent and defend his interest in said suit,

other than what might be inferred in a letter from John M. Perry; informing him that he would see upon the records of the court of the United States a suit, commenced against him and others by H. Mosely and Bouldin, and his wish to employ him to defend it. In no other part of his letter is reference made to the name of Lilburn P. Perry.

4th. Were you, or not, employed by John M. Perry alone for his defense, without any direction or request to appear on behalf of Lilburn P. Perry; and was, or not, your appearance on behalf of the defendants in said suit an inadvertence on your part?

To the 4th. He answers, he was employed by J. M. Perry in said letters aforesaid, and without any directions or request to appear on behalf of Lilburn P. Perry, other [than] what may be inferred from the letters aforesaid. Deponent regards his appearance on behalf of any other person than John M. Perry in said suit as an inadvertence on his part.

*5th. Did you, or not, know, at the [*179 time of your said appearance, that the said Lilburn P. Perry had never been served with process of citation in said suit, and that, at the time of its institution, he was a citizen of Missouri, residing in the city of St. Louis?

To the 5th. Deponent did not know, at the time of his said appearance, that Lilburn P. Perry had never been served with process of citation, and only presumed that it has been done; and accordingly misled him, as far as it has been done in the answer of John M. Perry. Deponent did not know, of his own knowledge, that, at the time of the institution of the said suit, Lilburn P. Perry was a citizen of St. Louis, Missouri.

To the first cross-interrogatory, he saith: In relation to the answers referred to in the said interrogatory, deponent has no recollection of having received any instructions from Lilburn P. Perry on the subject; nor of his having conversed with him about the suit before filing said answers; nor of his having conversed with him about the said suit until after the rendition of judgment against him; nor of his having ever written to him in relation to it, either before or since its institution.

2d. Was not John M. Perry his agent or attorney in fact? Did you not see in his hands authority to act for Lilburn P. Perry? Have you not reason to believe, and what reason, that he had authority to defend that suit?

To the 2d cross-interrogatory. Deponent does not know that John M. Perry was agent, or attorney in fact; deponent never saw in [his] hands any authority to act for Lilburn P. Perry; deponent had no reason to believe that John M. Perry had authority to defend the said suit for Lilburn P. Perry.