PARKER US. LINCOLN & AL.

he need not, and perhaps ought not, to have been included as a defendant in this bill. (1)

But here, Lincoln, the guardian, is, or at least may be, personally concerned in the event of this suit. One object of the bill is, to ascertain whether he has received any thing, and how much, on account of the debt due to the minor, either from the original debtor, or from the rents and profits of the mortgaged premises. If he had not been made a party, the Court must still have determined what sums he had so received; and the amount thus ascertained would have been deducted from the sum now due to Trott on the bond. But Lincoln, not being a party, would not be concluded by that decree; and, in an after settlement between him and his ward, he might undertake to show that he had not received so much. This would expose the minor to an inconvenience and hazard, to which he ought not to be subjected.

It is one of the peculiar advantages of chancery jurisdiction, that the Court can bring before them at once all persons having any interest or concern in the subject in controversy; and it is always a valid objection to a bill, if it does not make every such person a party in the suit. It was, therefore, proper, to make Lincoln a defendant in this case. There is nothing against it in the statutes on which this process is founded; nor can it produce any injury or inconvenience to him. He is called on to state his account of what he

has received; and, if any thing more is charged, he has [*19] * opportunity to disprove it. By the statute, as well as by the general rules in chancery proceedings, the Court have power to award costs to either party, as equity may require; and they would probably be always awarded to a defendant in the situation of this guardian, if he should do nothing that should unreasonably delay the plaintiff, and should make a prompt and full disclosure of the facts within his knowledge. †

The tender was rightly made to Lincoln. He, as legal guardian, was the only person authorized to receive the money; and he, alone, could execute a release of the bond, upon receiving payment. It may be added, also, that he is the only person who is presumed to know what is due on the bond.

It is unnecessary to consider the effect of the statute of 7 Ann. c. 19, or whether it has been adopted here; as our statute before mentioned authorizes the Court to award an habere facias seizinam for the plaintiff, if the mortgage be not duly released.

(1) Wyat's Prac Reg., Title, Infant, 223, 224.

Brown on Costs, 89. -1 Equ. As. Ab. 125 in note.- Executors, guardians, and trustees are, in Equity, usually exempt from costs or awarded costs out of the estate in their hands, unless they have greatly misbehaved themselves.

BEAN VS. BEAN.

The demurrer of the defendant, Lincoln, is overruled; and he must make answer to the bill.

As to the defendant, Trott, his non-appearance or default cannot prejudice him. The course in chancery, when an infant defendant does not appear voluntarily, is, to send an officer to bring him into court; and then a guardian is appointed to defend his interests in the suit. If he has no friend who will undertake the trust, the Court appoints a suitable person for that purpose. (2) We see no objection to proceeding in this course on the present occasion.

As the decree in this case may, in effect, settle a question in which the defendant, Lincoln, is interested, it seems proper that some other person should be appointed guardian for this suit. From what has

appeared in the case, there is no reason to apprehend that any dispute will ever arise between the two defendants, or that any particular inconvenience would result from the appointment of Mr. Lincoln. But it is a general rule, that a guardian appointed by the Court should have no interest in the subject in controversy.

(2) Wyat's Prac. Reg., ubi supra.

SIMEON BEAN versus STEPHEN BEAN.

An action lies against one who fraudulently induced the plaintiff to enter into a general copartnership with one who was the insolvent debtor of the defendant, and afterwards induced the copartners to assume all the debts due him from his said insolvent debtor, and then seized the plaintiff's property in satisfaction of the said debts; -and in such action the insolvent debtor is a competent witness for the plaintiff.

THE plaintiff declares in case, for that on, &c., at, &c., [*20] one Joshua Bean was concerned in trade and merchandise, and then was, and for a long time before had been, in apparent good credit, and the defendant had become the indorser of the said Joshua's promissory notes for large sums of money, and had received large sums of money as usury for such indorsements; and the said Joshua was indebted to the defendant and to other persons, to the amount of $10,000 more than all his estate and demands amounted to; all which was well known to the defendant, but of all which the plaintiff was wholly ignorant; nevertheless, the defendant, deceitfully intending to defraud the plaintiff, and to expose him to ruin, and the better to enable himself to secure his said demands against the said Joshua, and to hold the plaintiff responsible therefor, and to give false credit to the said Joshua, deceitfully and fraudulently persuaded the plaintiff, and enticed the said Joshua to persuade the plaintiff, to enter into a 3

VOL. XII.

25

BEAN vs. BEAN.

general copartnership in trade with the said Joshua; and, as an inducement thereto, assured the plaintiff, and caused the said Joshua to assure him, that the circumstances of the said Joshua in trade were good and prosperous, and that the defendant would support with his moneys and credit the said copartnership when formed; and that the plaintiff should realize great profit from such connexion by the defendant's aid and support; and the plaintiff, relying on the said false assurances, and ignorant of the embarrassed and ruinous state of the affairs of the said Joshua, entered into a general copartnership with him, and transacted business with him, under the firm of J. & S. Bean, for nearly twelve months. And the plaintiff avers, that, in consequence of the said copartnership, and during the continuance thereof, when and as often as any and all the promissory notes given by said Joshua to the defendant, and all whereon the defendant was responsible as indorser, and which were given by said Joshua before said copartnership was formed, severally became due and payable, the

defendant procured the said Joshua to renew the same under [*21] the said * copartnership name, whereby the plaintiff became involved in all the said Joshua's debts due before the said copartnership was formed; and afterwards, the defendant caused all the goods and merchandise of the plaintiff and the said Joshua to be attached, and took to himself all the debts due to the said copartnership, whereby the plaintiff and the said Joshua were wholly broken up, and became insolvent to a large amount.

The cause came on for trial upon the general issue before the Chief Justice, at the last November term in this county; when the said Joshua was offered by the plaintiff to prove the facts alleged in the declaration. It was objected, that, according to the allegations, he was a conspirator with the defendant to defraud the plaintiff; and that, admitting the allegations to be true, he was interested to fix the charge upon the defendant, in order to discharge himself, there being no contribution in a case of this nature. There being no other evidence offered, he was rejected, and a nonsuit entered; and, if he ought to have been admitted, a new trial was to be granted; unless the Court should be of opinion that the facts alleged would not maintain an action; which question was referred to the whole Court at the suggestion of the judge who sat in the trial, with the consent of the parties; the plaintiff agreeing that the nonsuit should remain, if the witness was properly rejected, or if the action would not lie; and, if, in the opinion of the Court, the action would lie, and the witness ought to have been admitted, a new trial was to be granted.

Morton (Attorney-General) and Fales, for the plaintiff.
Peabody, for the defendant.

Per Curiam. We cannot doubt that the facts alleged in the declaration, if well proved, will be a sufficient foundation of an action

BEAN vs. BEAN.

person as

for damages. They exhibit a case of complicated fraud and deceit ; and, if two persons were concerned, would constitute a conspiracy, for which the actors might be indicted and punished. It is at least equal to the cases of recommendation of an insolvent solvent, whereby a person has been induced to trust him. with goods; and it is well known that such a recommendation, proved to be false, will be a good ground of action for damages.

[* 22]

We think, also, that the witness offered was competent; although it is difficult to believe that the jury would give much credit to him, if his participation in the fraud, as stated in the declaration, should turn out to be true.

He is not interested in the event of the suit; for no damages will be given to him, nor will he have a right to share in the damages which may be awarded to the plaintiff. If he should hereafter bring a suit himself, the verdict in this action will not be evidence in his favor. Nor will the judgment recovered in this action necessarily be a bar to any action which the plaintiff may hereafter bring against the witness; although what is recovered in this case may possibly go to mitigate the damages in such future action.

But we do not think this contingent and uncertain interest sufficient to exclude him; especially as, before he is sworn, he may be released by the plaintiff from any right of action on this account. This would probably have been offered at the trial, had it not been supposed that the objection, taken to his competency, was, his participation in the alleged act which is the subject of the action.

As to the allegation in the declaration, that the witness was enticed by the defendant to aid in the fraud practised upon the plaintiff, this, if true, does not destroy his competency to testify. The witness is not legally infamous, and, if particeps fraudis, we do not see why he may not be sworn in a civil action, as well as particeps criminis in a public prosecution, which is the constant practice.

Let the nonsuit be set aside, and a new trial granted. † †

On the new trial J. Bean was a witness; but the defendant obtained a verdict; ut audivi.

Patten vs. Gurney et al., 17 Mass Rep. 182. A co-trespasser may be a witness for the plaintiff, B. N. P. 286. - Chapman vs Greaves, 2 Campb. 3:33, (n.) — Morris vs. Daubigny, 5 Moore, 319. Berkley vs Dimery, 10 B. & Cr. 113 - Blackett vs. Weir, 5 B&C. 387. — Hall vs. Curson, 9 B. & C. 647. But a release to one will discharge the other. Bacon, Release (G).-2 Phill Ev 329. And a recovery against one is a bar to an action against the other. 2 Phill Evid. 199.

27

AYLWIN US. ULMER, IN ERROR.

WILLIAM C. AYLWIN, PLAINTIFF IN ERROR, versus GEORGE ULMER.

Where the judge instructed the jury that the evidence offered by the plaintiff, from which they might have presumed facts sufficient to justify a verdict for the plaintiff, was wholly insufficient, a new trial was granted.

ERROR to the Circuit Court of Common Pleas holden in this county.

The original action was in case against the defendant, late sheriff of the county of Hancock, for a false return upon an exe [*23] cution. The declaration alleged, that the plaintiff, *Aylwin, having obtained a judgment against one Richard Jaques, for $66.51 damages, and $10.57 cost, sued out an execution thereon, returnable to the Common Pleas, April term, 1812; which execution was in due season delivered to the defendant, then sheriff, for service; that he returned the same unsatisfied, when, in fact, he had levied upon, and seized, by virtue of said execution, a quantity of boots, to the value of $100, of the chattels of the said Jaques, and which he had neglected to sell pursuant to law.

At the trial, in the Common Pleas, which was had on the general Issue of not guilty, the plaintiff proved the judgment and execution, as stated in his declaration; on which last the defendant had made the following return, namely; "Hancock, ss., April 20, 1812. Having made diligent search, and not being able to find property of the within-named Richard Jaques, wherewith to satisfy this execution, by order of the plaintiff I return this execution, in no part satisfied." The plaintiff also gave in evidence a conversation between the defendant and himself on the 12th of June, 1812, in which the defendant said, that he had in his hands boots to the value of forty dollars, received of the said Jaques, on account of the said execution; but at what time, or in what manner, he became possessed of that property, the witness did not hear the defendant state. The plaintiff also produced in evidence a letter of the defendant to the plaintiff, dated October 20th, 1812, of the tenor following, namely; "Dear Sir,Having resigned my office of sheriff, I am permitted to finish the business in my hands. I have received of Mr. Jaques a number of pairs of boots to dispose of to satisfy your execution against him; the boots are trusted out, but, I think, I can collect the pay for him this fal. If I get the pay, I shall have about eighty dollars. I have not got the execution, as you have not renewed it since I gave it to you last spring. Your attention to forward it to me soon may be the means of your getting your money. Yours, Geo. Ulmer."