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Opinion of the court.

none could be implied; that the express promise in the case being conditional, would not alone support the verdict; and that the question in issue had been, as he couceived, adjudged in Tanner v. Smart.*

Messrs. J. D. Pope and R. McPhail Smith, contra, citing Smith v. Forty,† and other cases.‡

Mr. Justice SWAYNE, having stated the case, delivered the opinion of the court.

The paper was clearly not a promissory note, because it was not payable at a time certain, and it was not such a duebill as the law regards as in effect a promissory note for the same reason.§ It was made up of the following particulars: It acknowledged the amount specified, consisting of principal and interest, to be due to the plaintiff for four years and six months' services, and promised to pay him that sum, with interest, as soon as the crop could be sold, or the money could be raised from any other source.

No time having been specified within which the crop should be sold or the money raised otherwise, the law annexed as an incident that one or the other should be done within reasonable time, and that the sum admitted to be due should be paid accordingly. Payment was not conditional to the extent of depending wholly and finally upon the alternatives mentioned. The stipulations secured to the defendants a reasonable amount of time within which to procure in one mode or the other the means necessary to meet the liability. Upon the occurrence of either of the events named or the lapse of such time, the debt became due. It could not have been the intention of the parties that if the crop were destroyed, or from any other cause

* 6 Barnewall & Creswell, 609.

4 Carrington & Payne, 126.

Gibson v. Renne, 19 Wendell, 389; McLemore v. Powell, 12 Wheaton, 554; Creath's Adir. v. Sims, 5 Howard, 192.

Story on Promissory Notes, & 27; Salinas v. Wright, 11 Texas, 575; Ex parte Tootell, 4 Vesey, 872.

Statement of the case.

could never be sold, and the defendants could not procure the money from any other source, the debt should never be paid. Such a result would be a mockery of justice.* The question of reasonable time, as the case was presented, was one to be determined by the court. When the suit was instituted more thau five years had elapsed from the date of the instrument. This was much more than a reasonable time for the fulfilment of the undertaking of the defendants, and the plaintiff was entitled to recover.

The Circuit Court instructed the jury correctly, and the judgment is

AFFIRMED.

WILLIAMS ET AL. v. BANKHEAD.

1. The bare title of a cause at the head of one or two orders of court-these being the only parts of a record in a concurrent proceeding sent here-in which orders the defendant is stated to be G. M. "et al." is not sufficient to show that a partner of G. M., to wit, one J. B.-not anywhere named in any portion of the record sent, was a defendant and party to the proceeding.

2. Where a proceeding in equity concerns the disposal of a specific fund, a person claiming the fund, and liable by a decree to have it wholly swept from him, is an indispensable party.

8. The general rules in equity relative to parties and the qualifications to the rules stated.

APPEAL from the Circuit Court for the Eastern District of Arkansas; the case being thus:

In 1853, James H. Branch, a cotton planter, in Desha County, Arkansas, opened an account with George McGregor, Nathan Alloway, and James Bankhead, of New Orleans, partners, under the name of McGregor, Alloway

* Hicks v. Shouse, 17 Ben Monroe, 487; Ubsdell et al. v. Cunningham, 22 Missouri, 124.

† Frothingham v. Dutton, 2 Greenleaf, 255; Kingsley v. Wallis, 14 Maine, 57; Manning v. Sawyer, 1 Hawks, 37; Cocker et al. v. Franklin Hemp and Flax Manufacturing Company, 8 Sumner, 530.

Statement of the case.

& Co., commission merchants, and in that and subsequent years became largely indebted to them for advances and supplies. In 1854 he executed to them an open mortgage on his plantation and slaves to secure all balance of indebtedness, whatever it might be from time to time. In 1859 the firm sued him in the Circuit Court of the United States for the Eastern District of Arkansas for an alleged balance of $20,000. He denied that he owed more than $8000, and in 1860 he filed a bill in the court below for an injunction and an account, referring incidentally to the mortgage which he had given, as part of the history of their transactions. Bankhead, already mentioned as a member of the firm of McGregor, Alloway & Co., and who finally succeeded to the entire interest in it, filed an answer to the bill, giving his version of the accounts, and praying a foreclosure of the mortgage and sale of the plantation to pay the balance due. It seemed that a cross-bill was also filed by him, but it was not contained in the record as it came to this court. The civil war having suspended the proceedings, the case was redocketed in 1866. Brauch died in 1867, and his administrator, one McNiell, revived the original chancery suit in his Own name. In 1870 Bankhead filed a supplemental crossbill, alleging that he had learned that Branch, when he gave the mortgage, did not have a complete title to the plantation, but only a contract for the purchase thereof, which he had not complied with, and that by proceedings in the State court of Desha County it had been decreed that, unless the balance of purchase-money was paid, the property must be delivered up to the vendor (one Isaac Bolton), and that the payments which Branch had made, amounting to $3666.66, with interest from 1854, should be refunded to his said administrator, McNiell; and that by subsequent proceedings in the same case, wherein the administrator had allowed a decree to be taken against him pro confesso, this sum was directed to be paid to Mary, the widow of the said James II. Branch, under a pretended marriage settlement. This supplemental bill of Bankhead submitted that the decree did not conclude his, Bankhead's, rights, "us he was not a party

Statement of the case.

thereto, and the merits of his cause were not in fact adjudicated by the court, as he in fact knew nothing of the pendency of the claim or snit at the time." He now prayed, therefore, that this money might be paid to him on his claim. McNiell, the administrator of Branch, Seth Bolton (devisee of Isaac Bolton, the vendor of the plantation), and one Williams, the tenant in possession of the plantation, were made parties to this supplemental cross-bill. They answered it and excepted to it, and it was ordered to be struck from the files.

McNiell, in his answer, referring to the $3666.66, and undertaking to give a history of it, and mentioning as part of the same that Bolton had agreed to sell to Branch for a much larger sum, payable in instalments, a plantation on which James H. Branch paid the $3666.66 on account, giving bond with a certain Joseph Branch as security for the remaining instalments, continued thus:

"The remaining instalments upon said land being due and remaining unpaid, Bolton commenced a suit in chancery in the Desha Circuit Court to enforce their payment against said land, and made the said James H. Branch, Joseph Branch, George McGregor, Nathaniel Alloway, and said James Bankhead, all parties defendant to said suit, the said James H. and Joseph Branch as resident, and the said McGregor, Alloway & Bankhead as non-residents of the State of Arkansas, and filed with his bill the proper affidavit that said McGregor, Alloway & Bankhead were non-residents; that all of said defendants were notified of said suit according to law, the resident defendants. by process, and the said non-resident defendants by order of publication, duly executed by advertisement, as required by law, and proof thereof regularly made and filed with the papers of the cause."

It appeared from the answers of McNiell and Willians to the supplemental cross-bill, and to a subsequent petition filed by Bankhead, that the plantation had come to the possession of Williams under the widow of Branch, and that he held by virtue of a lease from her, at the same time having a contract for the purchase of the property from the administrator as soon as the widow's claim should be satisfied.

Statement of the case.

A portion of the proceedings and a copy of the decree in the Desha County Court were annexed to the said crossbill. It showed quite clearly that the widow and minor children of Branch had appeared in that suit, and that the former had filed a cross-bill setting up her claim to the land or to the fund in question, which had been adjudicated in her favor. But the name of Bankhead was nowhere specifically mentioned as a party to the proceeding. There did, however, appear these following orders of court, in the caption or style of which the name of his partner, McGregor, was mentioned:

"STATE OF ARKANSAS,

COUNTY OF DESHA.

"Be it remembered that at a Circuit Court begun and beld in and for the county of Desha, on the chancery side thereof, &c.

.

present and presiding, the Hon. W. M. Harrison, judge.

"Court was proclaimed in due form of law, when the following proceedings were had, to wit:

ISAAC BOLTON

V.

JAMES H. BRANCH, JOSEPH Branch, anD

George McGregor.

"On this day, on motion, the mandate and opinion of the Supreme Court of Arkansas is filed, which opinion and mandate is in the words and figures following, to wit:

"STATE OF ARKANSAS,

IN THE SUPREME COURT, SCT.

"Be it remembered, that at a term of the Supreme Court of the State, begun and held at the court-house in the city of Little Rock, on the first Monday in October, A.D. 1866, among others were the following proceedings bad, to wit:

ISAAC BOLTON, APPELLANT,

V.

JAMES H. BRANCH, JOSEPH BRANCH, George

McGregor et al., APPELLEES.

Appeal from Desha Circuit
Court, chancery.

"This cause came on to be heard upon transcript of the record of the Circuit Court of Desha County, in chancery, and was argued in this court by the solicitors of the parties. On consideration whereof," &c.

In April, 1871, a decrce was pronounced in the Circuit

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