Thorne v. Halsey
New York Court of Chancery
THE plaintiff and defendant were jointly concerned in six different voyages and adventures between New-York and St. Domingo, the active management of which was undertaken by the defendant, who went to St. Domingo, and who was to have one third of the profits. The bill stated the different adventures, the accounts of which remained unsettled.
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THE plaintiff and defendant were jointly concerned in six different voyages and adventures between New-York and St. Domingo, the active management of which was undertaken by the defendant, who went to St. Domingo, and who was to have one third of the profits. The bill stated the different adventures, the accounts of which remained unsettled. That the last adventure was in 1820, in the schooner B., consigned to the defendant at Port au Platt, in St. Domingo ; that the vessel sailed from that place with only apart of her return cargo, for Mew- York, the defendant having retained the proceeds of…
1Opinion of the Court
The Chancellor.
The affidavit annexed to the bill Is not sufficient. It states, that on a fair and just settlement *192of accounts, he verily believed the defendant would be found justly indebted to him in 5000 dollars. He does not swear positively to any indebtedness. That is a fatal defect. The books only allow the plaintiff, in matters of account, to swear according to his belief, as to the amount, or balance; but he must swear, positively, that a balance is due, though he need not swear to any certain sum.,
In Done’s case, (1 P. Wms. 263.) it was a matter of account, but money was sworn to be…
2Cited by2 opinions
- Bayly v. BaylyHigh Court of Chancery of Maryland · 1847
- Rice v. HaleMassachusetts Supreme Judicial Court · 1849