Brown v. Toell's Adm'r
| Decision Date | 21 August 1827 |
| Parties | Brown v. Toell's Administrator |
| Court | Virginia Supreme Court |
This was an appeal from the Lynchburg Chancery Court.
The following opinion gives a full view of the case, which was submitted without argument.
Judgment affirmed.
[*]
Benjamin Perkins executed to Peter Toell his negotiable note for $ 500, on which Humphreys, administrator of Toell brought suit in the Superior Court of Law for the county of Campbell, and Brown became common bail. No defence being made, judgment was rendered against Perkins and Brown for the amount of the note, with interest. Brown filed his bill in the Court of Chancery for the Lynchburg District, in which he stated, that shortly after the institution of the suit, he removed to the county of Nelson, " and taking it for granted that Perkins would attend to the said suit, and on the trial thereof, procure evidence of all the credits to which he was entitled, he gave himself no farther trouble about the matter; " but that Perkins, although entitled to large credits, failed, from the extreme derangement of his affairs, and other circumstances, (not specified,) to prove the credits; in consequence whereof, judgment was rendered as aforesaid, for the whole amount of the principal of the said note, with interest thereon. He alleges as a fact, (which he says he will be able to prove,) that Toell was indebted to Perkins for various dealings, in a sum equal, or nearly equal, to the amount of the note; for none of which had Perkins been paid: that Toell acknowledged, in his life-time, that there was a very small balance, if any, due on the said note; and moreover, that since the death of Toell, Perkins had paid to his widow, with the knowledge of his administrator, $ 100; which payment was intended to be on account of certain extra interest upon the said note, agreed by the said Perkins to be paid to the said Toell. He prayed an injunction, which was granted.
Humphreys answered, denying all knowledge of the credits claimed, of the payment to Mrs. Toell, and of any agreement to pay usurious interest.
Brown filed an amended bill, and without making any new charge, made Perkins a party, calling on him to say, among other things, what excess of interest was demanded and received by the said Toell, of him the said Perkins.
The only evidence that could, in any aspect of the case, be relied on as a material, is that of Nicholas Harrison, who testifies, that Toell told him, a short time before his death, that the note in question had been given for money lent at an interest of 2 1/2 per cent. a month: that the interest had been paid in goods; and that he was then dealing with Perkins, and would endeavour immediately to collect his whole debt; and that about $ 200 were then due.
The questions are, whether any relief is to be granted, either on account...
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