{
  "id": 8681902,
  "name": "JOHN JAMES vs. HENRY A. LEMLY AND OTHERS",
  "name_abbreviation": "James v. Lemly",
  "decision_date": "1842-12",
  "docket_number": "",
  "first_page": "278",
  "last_page": "281",
  "citations": [
    {
      "type": "nominative",
      "cite": "2 Ired. Eq. 278"
    },
    {
      "type": "official",
      "cite": "37 N.C. 278"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T15:50:27.933727+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JOHN JAMES vs. HENRY A. LEMLY AND OTHERS."
    ],
    "opinions": [
      {
        "text": "Daniel, J.\nThe plaintiff states in his bill, that one Man-sel made his will and appointed Jacob Conrad and another his executors, and left a legacy to his daughter, the mother of the plaintiff and also the wife of one Henry Shore. He further states that in the year 1829, he, being in want of money, applied to his mother to aid him; which she agreed to do, if Conrad, the executor of her father, would let her have any. Conrad advanced the money, $>175, and took a bond from the plaintiff, with Henry Shore and and his wife Mary as sureties, payable to the executors: the said Conrad alleging that it was necessary for him to take the bond in this way, and retain it until he made a final settlement with Shore and wife, and then the said bond should be surrendered ; and he, Conrad, was to have a credit for the amount in the said settlement The plaintiff further states, that, a short time thereafter, the settlement for the legacy was made, and that Conrad was credited for the amount of the said bond, but for some excuse or other the bond was not delivered up. The plaintiff, being informed by his mother and Henry Shore that the bond was paid and satisfied, gave himself no more trouble about it. In the year 1835, Conrad requested the plaintiff to take up the old bond, which had been made payable to him as executor, and give him three new bonds, payable to himself only, for the amount of the old bond and interest. The plaintiff then told him, that the old bond was paid and satisfied. Conrad assured him that it was all right, and that he would have nothing to pay; and he gave as a reason for his asking for the new bonds, that the creditors of Shore were pressing him, and that it was necessary for him to hold some evidence of the amount advanced : and he moreover said, that one Lehman and others had a bill in equity then pending against him and Shore, trying to subject Shore\u2019s interest in the aforesaid legacy to their debts. Conrad pressed the plaintiff to execute the said three bonds, which he then had with him ready written, particularly assuring him that he never should be compelled to pay them, that his cbject was to keep the bonds as vouchers to shew how he had managed the funds of the testator. The plaintiff, thereupon, executed three bonds.\nThe transaction thus remained up to the death of Com ad, which took place in the year 1839. The plaintiff further states, that the defendants are the executors of Conrad, and that they, finding the aforesaid bonds among the papers of their testator, have brought suit on them at law against him, obtained judgments, and are now pressing their executions. The plaintiff says, that he has often informed the defendants of the truth of the transaction, and insisted that the bonds should be surrendered to him. Such are the statements of the bill, which prays for an injunction.\nThe defendants in their answer state, that they are the executors of Conrad \u2014 that they found among their testator\u2019s papers the three bonds mentioned in the bill \u2014 that they have obtained judgments on the same, and issued executions. They state that they believe the debt to be justly dne. They admit that Conrad became the executor of Mansell before the year 1820, arid that Mrs. Shore was the daughter of Mansell and the-mother of the plaintiff, and that she was a legatee under her father\u2019s will. And they state, that Henry Shore, the husband, was.indebted to Conrad in a sum much larger than the legacy coming to his wife, that Shore assigned the whole legacy to Conaad, in part satisfaction. They further state, that neither the original bond nor the three bonds substituted for ft have been satisfied, and that they have the most conclusive evidence that the same are still due. They say that they have no knowledge of any agreement that the bonds were to be given up, as stated in the bill, or that he was allowed the same in his settlement.\u2014 They state their belief to be, that he might have made the debt payable to himself, so that it might be more easily and certainly collected.\nThe court refused to dissolve the injunction, and ordered it to stand over for the parties to take proofs, and the defendant, by permission of the court, appealed from this interlocutory order.\nIf Conrad only loaned the money to the plaintiff out of Mansell\u2019s estate, why did he let it remain uncollected up to the death, a period of ten years? There was no relationship or particular friendship between them. The defendants admit that Mrs. Shore\u2019s legacy-was paid in no oiher way than by the assignment of it by Shore to Conrad, in satisfaction of a debt which he owed Conrad. The deed or evidence of assignment, which must be in the defendant\u2019s possession, is not. exhibited in the ans.wer. WeMo not see the date or contents of that instrument. We must conclude, however, that it was made alter the date of the first, bond, which was executed by the plaintiff with Shore and his wife as sureties. The defendants state in their answer that they have the most conclusive evidence that the debt is due. Then why not, in their answer, exhibit to the court that most conclusive evidence? Is it Shore\u2019s deed of assignment? We admit that a sight of that instrument might throw much light on the question. The amount of Conrad\u2019s debt against Shore \u2014 the amount of the legacy \u2014 the amount of the debt paid by Shore by force the assignment \u2014 tiie date of that assignment \u2014 all these material tilings are wanting, which would be great aids in the right understanding of the case. The foregoing circumstances, connected with the staleness of the demand, the fact of Conrad giving up a bond with sureties and taking other bonds without surety \u2014 the length of time which then elapsed before his death, and nothing said about these bonds \u2014 \u25a0 the defendants being executors and answering only as to their belief \u2014 the inartificial state of the pleadings \u2014 all taken together, raise a reasonable doubt upon the mind of the court, whether the equity in the bill is sufficiently negatived by the answer to authorize an order for the dissolution of the injunction. The defendants are amply secured, if they should get a decree upon the hearing. A short delay will be to them but a very little injury. In cases of this kind, viz. whether the court will dissolve an injunction on hearing the answer only, or will order the bill to stand over for proofs, much must depend upon the sound discretion of the judge, who is to decide the question. After all the consideration which we have given this case, we are not prepared to say, that the order made by the Superior Court is erroneous.\u2014 Therefore the judgment must be affirmed.\nPer Curiam. Judgment affirmed.",
        "type": "majority",
        "author": "Daniel, J."
      }
    ],
    "attorneys": [
      "Morehead for the plaintiff.",
      "Waddell and Iredell for the defendant."
    ],
    "corrections": "",
    "head_matter": "JOHN JAMES vs. HENRY A. LEMLY AND OTHERS.\nOn the heaving of an injunction bill, when a reasonable doubt exists in the mind \u00f3f the court whether the equity of the bill is sufficiently negatived by the answer, the court will not dissolve the injunction.\nIn such cases much must depend upon the sound discretion of the court,\u201dto whom the question of dissolution is preferred.\nThis was an appeal from an interlocutory order of the Court of Equity of Stokes county, at Spring Term, 1842, his Honor Judge Dick presiding, refusing a motion to dissolve the injunction which had been granted in this case.\nThe facts are set forth in the \u25a0 opinion delivered in this .court.\nMorehead for the plaintiff.\nWaddell and Iredell for the defendant."
  },
  "file_name": "0278-01",
  "first_page_order": 278,
  "last_page_order": 281
}