
    Lee v. Baird et al.
    September Term, 1809.
    Equity Practice — Judgment at Law — Relief—Case at Bar. — A partner having withdrawn from a mercantile company, and being afterwards erroneously included in a suit against a new company formed by the other partners, may be relieved in equity against a judgment therein obtained, upon the ground that one of the company prevented his making defence at law, by assuring him the matter should be adjusted
    The plaintiff was a member of a mercantile house in the County of Cumberland, trading under the firm of Goodrich, Eee & Co. and in May, 1801, they came to an agreement to continue in partnership until the end of that year, and then to be dissolved, which was publicly known in that part of the country. Goodrich and the other partner Anderson, then formed a new company, which was known by the name of John B. Goodrich & Company, and, in the latter end of the year 1801, John B. Goodrich applied to James H. Baird, of Petersburg, and obtained a credit in the name of John B. Goodrich & Co. for goods to the amount of 661. 6s. 6d. for which they executed their bond in 1803; but Baird alleged that he sold the goods on the credit of the plaintiff and the said Anderson, as he was informed by Joel Clark, of Prince Edward County, that they were concerned with the said Goodrich. A suit was afterwards brought at law, against Goodrich, Eee, and Anderson, as late partners in trade, under the firm of J. B. Goodrich & Co. and, as Eee alleged, he made no defence, because Anderson assured him the matter should be adjusted; but it was not, and an execution was levied upon Lee’s property; and in order to keep it, he gave a forthcoming bond, and then filed his bill in this Court for relief under *these circumstances; and thereupon an injunction was awarded, and now the cause came on to be finally heard.
   By the Chancellor.

Goodrich and Anderson have not answered, and James H. Baird relies principally upon these two points: 1. That the dissolution of the partnership of Goodrich, Lee and Co. in 1801, was not known; and, 2. That the plaintiff might have defended himself at law. As to the first point, there would be much weight in the objection, if the fact were so, and the contract had been in the name of Goodrich, Lee & Co. but the fact was not so, and the contract was not in their names, but in the name of John B. Goodrich & Co. in which the plaintiff had no concern : and this too, after the dissolution in May, 1801.

As to the second point; it is not denied but that the plaintiff was misled by Anderson, and therefore did not defend himself at law: and, I confess, it is a very doubtful point, whether, on account of Anderson’s misconduct, a legal advantage obtained by Baird at law, should be taken away: and, I am inclined to think that it should not, if the plaintiff had, in any manner, contributed to mislead Baird, or to place his claim in a worse situation ; but he has not. In this case he is faultless. He comes into Court with clean hands; and if Baird and Anderson have not combined to oppress him, he has done nothing to injure either of them, as Baird has his judgment against Goodrich and Anderson, who are his proper debtors, and now occupies the same ground he did before he sued the plaintiff. This is not like the case of Chisholm against Anthony, In that case Chisholm availed himself of all the delays of the law, and when he could no longer thwart Anthony, he then came here for relief, which was denied, as he applied with unclean hands; and as the real debtor might in that time have become insolvent. Nor is this like the case of Nicholson and Heth against Hancocke and Golliat; as in that case the plaintiffs were the real debtors, and might have controlled the advice which kept them from making their *defence at law, and therefore they should have done it. But, in this case, the plaintiff never was the debtor of Baird, and most clearly was deceived by Anderson, on whom the plaintiff relied to pay the debt, and therefore he expected to hear no more of it, and so went undefended. Nay, it was a circumstance which, as he relied upon it, he could not control, until it was too late: and, therefore, his case forms an exception to the general rule, and the injunction must be made perpetual as to Bee, at the costs of Goodrich and Anderson, against whom Baird may still proceed at law, unless they ■can shew cause against it at the term after they shall be served with a copy of the decree. 
      
       ‘1 Hen. & Munf. p. 13.
     