WELSH V. MANDEVILLE, 11 U. S. 152 (1812)

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U.S. Supreme Court

Welsh v. Mandeville, 11 U.S. 7 Cranch 152 152 (1812)

Welsh v. Mandeville

11 U.S. (7 Cranch) 152




Decided: that the refusal of the court below to reinstate a cause which has been legally dismissed is no ground for a writ of error. The nominal plaintiff may dismiss a suit brought in his name by a creditor who has not an assignment of the cause of action.

An action of covenant was brought in that court in the name of James Welsh, the plaintiff, but really for the use and by the sole orders of Allen Prior, against Mandeville & Jameson upon a contract for the sale of land to them by Welch. At the second term after an office judgment had been entered against Welch at the rules, the defendant, Mandeville, who alone had been taken, produced to the clerk a release under the seal of Welch and an order from him to dismiss the suit, whereupon the clerk made an entry on the minutes of the court that the action was dismissed by agreement of the parties. Afterwards, at the same term, the attorney who brought the suit in the name of Welch, moved the court to reinstate it, and grounded his motion upon his own affidavit and the papers mentioned therein. The affidavit stated that in the autumn of 1799, Prior brought to the attorney 3 bills of exchange, drawn by Welch upon Mandeville & Jameson, for $2,500 dollars each and an account in the handwriting of Mandeville acknowledging a balance due to Welch on 31 January, 1798, of $8,707.09 to be paid in the times and manner therein stated. Prior at the same time stated that Welch was indebted to him and that he had taken those bills in payment, which Mandeville & Jameson refused to accept, saying that Welch

Page 11 U. S. 153

had deceived them in the sale of the lands. Prior left the papers with his attorney and requested him to take the best measures to obtain the money from Mandeville & Jameson, whereupon he brought two suits in the County Court of Fairfax, in Virginia, the one was a suit at law in the name of Welch against M. & J. founded upon their acknowledgment of the balance of account. The other was a chancery attachment in the name of Prior against Welch, as an absent debtor, and charging M. & J. as Garnishees.

Upon the trial of the suit at law, the defendants produced the original contract respecting the sale of land, whereupon the attorney for Welch suffered a nonsuit, and having obtained an office copy of the contract, brought the present suit thereon for the use of Prior in the name of Welch, but without his directions, which was known to Mandeville. There had been no decision in the chancery attachment. The attorney never had any communication with Welch upon the subject of this suit, but he had reason to believe that Welch knew of the suits in Fairfax County and did not interfere with them. The attorney corresponded solely with Prior on the subject of this suit, who had directed the application of the money when recovered. That the attorney did not know of the release and order to dismiss the suit until after the entry was made on the minutes, and that the suit had been dismissed without his consent or that of Prior, who had been at all the expense of the suit. That he had been informed that Welch was in the prison bounds, and that when Prior put the papers into his hands, he informed him that it was his only prospect of receiving payment of the debt due to him by Welch.

Whereupon the defendant, Mandeville, produced the affidavit of Welch stating that he drew the bills in favor of Prior merely for him to get them accepted, and negotiate them for account of Welch and as his agent. That Prior never gave value for them, and instead of being the creditor of Welch, was his debtor, and that he (Welch) never made a transfer or assignment of the contract with Mandeville & Jameson to Prior or any other person.

Page 11 U. S. 154

The defendant Mandeville also produced a paper purporting to be the answer of Welch to the chancery attachment in Fairfax County (but which had not then been filed in the suit), which contained the substance of his affidavit, and also a letter written by Welch to Mandeville & Jameson and sent by Prior at the time he presented the bills, corroborating the fact that Prior was only his agent in that business.

In this state of the case, the court below continued the motion to reinstate the cause until the next term to give an opportunity to Prior to produce evidence of an assignment of the contract and of his right to bring suit upon it, at which term he produced his own affidavit stating that Welch was indebted to him upwards of $14,000, and that Welch gave him the 3 drafts on Mandeville & Jameson, for his (Prior's) own use and benefit for and on account of a tract of land sold to Welch, and which Welch sold to another person. He produced also certain other documents tending to corroborate his affidavit.

But the court below refused to reinstate the cause and ordered it to be dismissed according to the agreement of the parties, to which refusal Allen Prior took a bill of exceptions which the court signed.

Page 11 U. S. 155


The majority of the Court is of opinion that the motion to reinstate the cause was an application to the discretion of the court, and its refusal is not a ground for a writ of error.

After the Court had delivered this opinion it became a question whether the writ of error should be dismissed or the judgment affirmed.

After consideration of the case again,

Page 11 U. S. 156

MR. CHIEF JUSTICE MARSHALL stated it to be the opinion of the Court that the judgment of the court below should be affirmed. The writ of error is to the judgment generally. The refusal to reinstate the cause being no error in law, the Court can see no error in the principal judgment.

Judgment affirmed.

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