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UNION BANK OF GEORGETOWN V. GEARY, 30 U. S. 99 (1831)

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U.S. Supreme Court

Union Bank of Georgetown v. Geary, 30 U.S. 5 Pet. 99 99 (1831)

Union Bank of Georgetown v. Geary

30 U.S. (5 Pet.) 99

Syllabus

It is a well settled rule that in a bill praying relief, when the facts charged in the bill as the ground for the decree are clearly and positively denied by the answer and proved only by a single witness, the court will not decree against the defendant. And it is equally well settled that when the witness on the part of the complainant is supported and corroborated by circumstances sufficient to outweigh the denial in the answer, the rule does not apply.

An injunction bill was filed upon the oath of the complainant against a corporation, and the answer was put in under their common seal, unaccompanied by an oath. The weight, of such answer is very much lessened, if not entirely destroyed, as it is not sworn to.

The court is inclined to adopt it as a general rule, that an answer not under oath is to be considered merely as a denial of the allegation in the bill, analogous to the general issue at law, so as to put the complainant to the proof of such allegation.

The attorney of the plaintiffs in an action on a promissory note agreed with the defendant, whose intestate was endorser of the note, that if she would confess judgment, and not dispute her liability upon the note, he, the attorney, would immediately proceed by execution to make the amount from the drawer of the note, the principal debtor, who he assured her had sufficient property to satisfy the same. Upon the faith of this promise, she did confess the judgment. Held that this agreement fell within the scope of the general authority of the attorney, and was binding on the plaintiffs in the suit. The plaintiffs in the suit having failed to proceed by execution against the drawer of the note, and having suffered him to remove with his property out of the reach of process of execution, the circuit court, on a bill filed perpetually enjoined proceedings, on the judgment confessed by the administratrix of the endorser, and the decree of the circuit court was on appeal affirmed by the Supreme Court.

The consideration alleged in the bill for the promise of the attorney to proceed by execution against the drawer of the note and make the amount of the same was the relinquishment of a defense which the defendant at the time considered legal and valid. By a subsequent judicial decision, it was determined that the defense would not have been sustained. To permit this decision to have a retrospective effect so as to annul a settlement or agreement made under a different state of things would be sanctioning a most mischievous principle.

The general authority of an attorney does not cease with the entry of a judgment. He has at least a right to issue an execution, although he may not have the right to discharge such execution without receiving satisfaction.

The suit does not terminate with the judgment; proceedings in the execution are proceedings in the suit. chanroblesvirtualawlibrary

Page 30 U. S. 100

Anna Geary, as administratrix of her husband Everard Geary, filed her bill in the circuit court in which she sets forth that her intestate, sometime before his death, became security on a note which was discounted for the accommodation of J. Merrill, at the Union Bank of Georgetown, for a large sum of money, which was continued from time to time, by a renewal in the usual way, for the accommodation of Merrill until the death of her intestate. Subsequent to his death, suits were instituted in the circuit court upon the note against the drawer and endorser, and she was called on by the counsel and attorney of the bank and requested to confess a judgment on the note, and was at the time assured by the attorney that if she did so and did not dispute her liability upon the note, the bank would immediately proceed by execution to make the amount thereof from the principal debtor, Merrill, who, he assured her, had sufficient property in the country to satisfy the same, and he, advising her that she would be thus saved from liability for the debt, prevailed on her to make no defense against the suit at law, but voluntarily to confess a judgment thereon for the amount of the debt, principal, interest, and costs.

The judgment was confessed for four thousand dollars damages and costs, to be released on payment of two thousand dollars with interest from 24 January, 1815, until paid. Various payments from May 30, 1815, until August 6, 1816, were made by Merrill, amounting to $775.39.

The complainant charges that at the time of confessing the judgment, a valid legal defense existed against the suit which would have defeated the plaintiff's right to recover on the endorsement, the plaintiffs not having made the due and legal demand and given due and legal notice so as to bind the endorser; that the attorney of the bank well knew the same, and therefore, and to prevent complainant from contesting the suit, made the proposition before stated.

The bill further charges that when the judgments were obtained against Merrill and the complainant on the note, Merrill resided in Georgetown, and had then and there sufficient property to satisfy and pay the judgments, and the same chanroblesvirtualawlibrary

Page 30 U. S. 101

might then and for some time afterwards have been recovered by process of execution issued either against the body or the goods of Merrill. Complainant repeatedly and earnestly called upon the plaintiffs and urged them to issue execution against Merrill and recover their debt according to the agreement and understanding upon which she had confessed judgment. The plaintiffs, however, continued to indulge Merrill for a long space of time, and, notwithstanding all the remonstrances of the complainant, permitted him to leave the District and take with him all his property beyond the process of the court, nor have they taken any effectual and proper means to recover the debt from said Merrill, as bound by their agreement to do. Merrill is now, as the complainant is informed and believes, in insolvent circumstances. And now that by their misconduct and breach of faith they have lost the means of recovering the judgment from Merrill, the plaintiffs, most unjustly and unreasonably, demand payment of the same from the complainant and threaten to proceed against her on said judgment, which she believes they mean to do.

The answer of the defendants below, which was filed under their corporate seal and was not sworn to, admits that Merrill did borrow the sum of $2,200 upon his promissory note endorsed by Everard Geary, and avers that the loan was made exclusively on the credit of the endorser, Geary having proposed himself as security of Merrill, whom he was anxious to assist and benefit by endorsing his note. The answer alleges that the needy circumstances of Merrill were well known to the defendants and to the endorser; he never had sufficient property to pay his debts, and that the endorser was known to be in good circumstances, and of ability and willingness to discharge his debts and responsibilities. During his lifetime, the endorser frequently promised to save and protect the bank from any loss on account of Merrill's inability to meet the note, and had he lived, he would punctually have complied with such promises.

Upon the death of E. Geary, his administratrix, the complainant, re he would punctually have complied with such promises.

Upon the death of E. Geary, his administratrix, the complainant, re