Robert B. S. Hargis vs. Henry C. Campbell, Sheriff and ex-officio Administrator of Lewis Starling, deceased, 14 Fla. 27

WESTCOTT, J., delivered the opinion of the court. It might be urged that a joinder in this case, of matters growing out of a partnership with other and different matters, such as private accounts between the parties unconnected with the partnership, was an improper joinder of th© subject-matter of the suit, and this was our first impression here.

Under the peculiar facts of this case, however, such an objection could not be sustained, because for each subject matter of the suit the plaintiff has a remedy in equity, and the decree following the equities embraced in each subject-matter, is precisely the same, viz : a decree establishing the debt, and directing its payment by the legal representative of the deceased intestate in due course of administration. Story’s Eq. Pl., 100; 1 John. Ch’y, 619, 630, 813; 3 John. Ch’y, 58; 2 Cox Rep. 11; Cas. Temp. Talb., 217; 3 Atk., 572; 10 Ves. 38; 1 Mylne & Craig, 603, 626.

Was there any partnership stock on hand,- it might inquire a different form of decree for each subject-matter, anc& perhaps that might be inadmissible, but there is no' sucN stock. The bill alleging that the estate is insolvent, any other decree than the one indicated would be wrong, as, plaintiff here, so far as the record discloses, has no lien ancb is entitled to no priority as against the estate, and he can get none against an insolvent estate by a decree. As to these-.matters, there is, therefore, abundant equity.

The next and last question necessary to be considered iky. is there an equity to enjoin the proceedings at law ? As a general rule, where there is a complete defence at law to an-•action, and there is no allegation of any defect in plaintiff’s means of establishing his defence at law, nor any prayer for-discovery, a court of equity will not interfere, even to stay trial. There are, however, other and peculiar equities in this case.

The account between the parties arising out of the partnership cannot be adjusted until it is determined whether Starling is to be charged with one-half of the goods and credited with a corresponding payment, and that involves a consideration of the true character of the transaction between these parties out of which the note arose, although, strictly speaking, the matter of the purchase may not have been a partnership transaction.

It did not necessarily enter into partnership account, as payment for the one-half of the stock may have been necessary to the acquisition of any interest by Starling, and a condition upon which the partnership was to result. In addition to this, a court of equity is alone competent to set aside and cancel this instrument, or to reform it and give effect to it as a receipt. In such cases, when necessary, the suit at law may be enjoined: (3 Hal. Ch’y Rep. 574.) Equity exercises a general jurisdiction in cases of fraud, sometimes concurrent, and sometimes exclusive of other courts.

The case of a will is about the only-exception. (Cooper’s Eq. Pl., 125; 2 Ves., 155; Story’s Eq., 1841.) The fraud in -such a case as this should be “ clearly proved.” The decree dismissing the bill was erroneous. The plaintiff is entitled to an injunction upon the usual terms in like cases. The decree is reversed and the case remanded for further proceedings not inconsistent with this opinion, and conformable to law.