Crim v. Handley

APPEAL from the Circuit Court of the United States for the Southern District of Georgia.

Handley, on the 14th of April, 1873, brought suit in the Circuit Court of the United States for the Southern District of Georgia against Crim and Peeples, surviving partners of King, Crim, & Co., on four promissory notes, executed by the firm to Buffington & Co.

The defence was payment. Peeples also pleaded his discharge in bankruptcy.

When the case was called, no motion was made for a continuance. The evidence offered by the defendants was admitted at the trial without objection, no charge to the jury was asked, and there is, consequently, no bill of exceptions.

The defendants offered in evidence sundry receipts showing payments.

Harper, the attorney in whose hands Buffington & Co. had placed these notes, and Crim and Peeples, the defendants, were witnesses, and testified as to the alleged payments.

Upon this evidence the case was submitted, and it resulted in a verdict and a judgment for $3,154.21 against Crim. Peeples was discharged, on the plea of bankruptcy.

Crim then moved for a new trial, on grounds which do not appear. The motion was denied. He then filed his bill for an injunction and a new trial, all the allegations of which, in support of the relief prayed for, were fully answered and denied; and the case was heard in August, 1873, when the injunction was denied. No decision was made on the demurrer, which was also filed, but the bill was retained, for the purpose of being heard at the next term.

Testimony was taken by Crim to sustain his allegation that the notes had been paid, and the principal witnesses were again he, Peeples, and Harper.

The chief grounds relied on by Crim for the intervention of equity were, first, that a certain record in a proceeding on the equity side of one of the State courts, alleged to have an important bearing on the question of payment, could not be found by the clerk of that court up to the time of trial; second, that Peeples, when testifying in the common-law case, was not in a condition of mind to tell all he knew and to speak truly. In support of this latter ground, Peeples swears that, two or three days before the trial, he had been seriously ill; had not slep scarcely any for three nights; had taken opium freely; and at the time he testified was in such bad condition that he could not remember the facts in the case. He swears that in another trial he will testify to sundry payments amounting to $3,251.

Upon a final hearing the bill was dismissed, and Crim appealed to this court.

Mr. R. F. Lyon for the appellant.

Mr. Philip Phillips and Mr. W. H. Phillips for the appellee.

MR. JUSTICE CLIFFORD delivered the opinion of the court.