Page:The Green Bag (1889–1914), Volume 18.pdf/494

 SQUIRE ATTOM'S DECISIONS MAXIM II Equity Follows the Law EDITOR'S NOTE : — The short-hand notes reporting the following case have given some trouble. A part of the opinion has been purposely omitted. There are refer ences to the Constitution and the Flag, — or the Flag and the Constitution, which indicate that the case was contemporaneous with the strife over the question whether the latter followed the former, or the former led the latter, or vice versa. At no time were the two abreast. Happily the flag finally stayed long enough in one place for the Constitution to find it; so that, another time when one starts off without the other, alert people who have jobs in Washington will be able to keep better track of their relative positions. At any rate, if the Flag and Constitution episode was intended to illustrate how equity follows the law, it should have been printed out; for many of the notes are positively illegible, and the editor can make nothing more than a hodge-podge out of them. Overton v. Drinkwater. Sent up on writ of error, then sent down for trial on the merits. HEAD NOTE : — The equity of the case. Where a demurrer is interposed to a plead ing, and there is nothing on its face to war rant the overruling thereof, held, that equity in this court may take a glance at the face of the pleading party, or his attorney, and therein often find plenty of reasons for its action. Where it is found that equity will not follow the law, held, that the law should be repealed. STATEMENT OF THE CASE This is an action on a written contract to buy and pay for one share of corporate stock at the agreed price of $200. Memo randa on the instrument showed that

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several of these dollars had been paid by Drinkwater, the defendant and vendee of the stock. There was nothing on the paper to show why he should not pay the balance. Suit was brought based largely on this hiatus. The suit was brought for the sum of $99.99 with prayer for costs. The plaintiff, without formal pleading, simply asked judgment for the amount claimed; and the defendant answered orally, deny ing the claim, and setting up a counter claim in the sum of $100, which included amount paid on the stock on account of misrepresentation, and damages for that the plaintiff had attacked his good name, and had called him, Drinkwater, a deadbeat and a toper. To the answer the plaintiff de murred on jurisdictional grounds, claiming that the counterclaim was one cent in excess of the court's jurisdiction. The demurrer was overruled with remarks that were lost amidst the noise of the court room, the con stable being occupied in the back room investigating a pump the plaintiff intended to introduce in evidence. The plaintiff stood on his demurrer; and after the court's ruling was sustained on writ of error to the Circuit Court, the case was with difficulty attempted to be tried to a jury, and was given up after more difficulty. A judgment was rendered. XUTTYTON R. BOWLES, Attorney for Plain tiff. SEMPRONIUS SIMPSON, Attorney for Defen dant. Opinion by Attorn, J. P., on behalf of the court: — I. The court has been impressed with the candor with which counsel for the plaintiff has referred in his arguments to the court, and to the erstwhile jury to the face, figure, character, name, and reputation of the defendant. It has only been equaled by the suavity of his deportment towards his opposing counsel and his loyalty to his own client. The defendant will no doubt carry away with him fond memories of his day in a court of justice. Twice during Bowies' harangue to this court, and when ho