Read v. Consequa , 4 Wash. C. C. 174 ( 1821 )

WASHINGTON, Circuit Justice.

The bill in this case was filed in the year 1S16, with a prayer for an injunction, and the usual affidavit verifying the truth of the allegations contained in the bill; and an order was at the same time obtained, that service of the subpoena upon the defendant’s attorney in the action at law, should be deemed sufficient, the defendant himself residing abroad. After an interval of nearly five years, the injunction was moved for, and granted for want of an answer, the attorney of the defendant having acknowledged service of the subpoena in April, 1817. The motion which is now made to dissolve the injunction absolutely, without the answer of the defendant being filed, is altogether unprecedented. If the injunction be granted till answer and further order, which is the usual form, it is never dissolved until the answer comes in, even although the defendant should live abroad, and the motion is accompanied by an affidavit to support it. Snow v. Cameron, 1 Fowl. Exch. Prac. 282. In this respect, the practice of the court of chancery, and of the court of exchequer in England, is the same.

It is stated in a late treatise by Hr. Eden ■on the Law of Injunctions (page S25), that ■the form of granting injunctions at present, used, and which was established by Lord Eldon, is, “till answer or further order,” which allows the defendant, if necessary, to move to dissolve before answer filed. But in that case, the motion must be accompanied by an affidavit denying the merits of the bill. The uniform practice in this ■court has been to require an answer. We ■do not say however that the court might not under particular circumstances grant the injunction until answer or further or■der; and in that case listen to a motion to dissolve upon an affidavit of the defendant, ■denying the equity of the bill.

In support of the motion to dissolve this injunction, unless the sum confessed by the judgment is paid into court within a limited period, many oases have been cited from late English reports, none of which however seem to me. to be applicable to the present case. After the injunction is granted for want of an answer, this order is seldom, if ever made; except where the merits of the bill, being so far confessed by the answer, as to render a dissolution of the injunction improper, it is continued to the hearing. In such case, the court will direct the money found to be due to the defendant, by a verdict, or an award, or what the answer swears to be due, to be paid into court, or that satisfactory security for the same should be given, and will order the injunction to stand dissolved unless the condition is complied with. But to ground such an ■order, we hold it to be absolutely necessary that the sum so ordered to be paid should have been ascertained in one of the three ways above mentioned; and further, that the defendant should have answered the bill, or at least have filed an affidavit denying the merits stated in it. Eden, 112. As to the practice of receiving an affidavit in lieu of an answer upon a motion of this hind, it would seem to be of modern date in England, and to have been adopted for the purpose of checking the delay and oppression complained of in respect to injunctions to stay proceedings at law, where the plaintiff resides abroad. Eden, 116, 117. Upon examining the cases cited by Eden (page 117), which have also been mentioned at the bar, it appears that in all of them an affidavit, denying the merits of the bill, was required by the court.

To dispose of this motion then, it would be quite sufficient to observe, that it is not founded either upon the answer or affidavit of the defendant; and what renders the case peculiarly unfavourable to this application is, that the defendant has had. an abundance of time to file an answer or an affidavit, in case there should have been an insuperable difficulty in getting the dedi-mus potestatem executed at Canton; which, by the by, is not even urged by his counsel as an excuse for the apparent contempt in which the defendant has placed himself. In such a case, nothing short of the defendant’s answer ought to satisfy the court, since it would not be uncharitable to suspect that he has his own reasons for declining to answer. As to the affidavit of Benjamin C. Wilcocks, and the answer of the defendant’s attorney, which he offers to file, we have only to remark, that neither of them proceeds from the defendant. The object and the equity of the bill are to obtain a discovery from the defendant, whether Benjamin C. Wilcocks was not, in some way or other, authorized by him to collect his debts in the United States, and to bind him by his acts; and whether the defendant has not received from his said attorney or agent large sums of money on account of the plaintiff, sufficient to discharge the notes upon which the action at law was brought, in whole or in part? The bill charges that Mr. Wilcocks was the attorney or agent of the defendant, and that such sums were received by him as the defendant’s attorney, and further, that the accounts respecting the cargo of the Sally or Pegou remain unsettled, and it prays generally for an account The denial of these charges by Mr. Wilcocks, cannot dispense with the discovery which the plaintiff has a right to require from the defendant, and which no person can so properly make. If the defendant should acknowledge the agency of Mr. Wilcocks, the deposition of the latter as to that matter will go for nothing, and then the case will resolve itself into one to be submitted to the auditor to take an account.

As to the answer of the defendant’s attorney, it is still less satisfactory than the affidavit, inasmuch as it is, in a great measure, founded upon the facts stated in the affidavit; the gentleman who offers it not pretending to be so informed personally of the matters charged in the bill, as to enable him to make the desired discovery. If, in short, the case came now before the court, even upon the answer of the defendant, it would be a measure of great rigour to dissolve the injunction absolutely, or even conditionally, upon payment into court of a sum of money for which, by the order of the court, the defendant was compelled to confess judgment, for the defendant’s security, unless the answer contained a full denial of all the merits of the bill, or swore to a particular sum as being due to the defendant. At all events, the order which the court might make in such a case would depend very much upon the complexion of the answer itself.

[Both motions were renewed and again overruled by the court. Case No. 11.(507.]

It was contended that the injunction was dissolved, of course, by the filing of the amended bill, notwithstanding the order of the court that the injunction should not be thereby prejudiced; because, as the counsel has stated, he was not duly notified of the motion. The plaintiff’s counsel is very positive, that the counsel of the defendant was in court at the time the motion was made; and although a notice in writing was not served, we presume that the court was satisfied upon the point of notice. After all, the amendment of the bill before answer, and particularly when it was made within so short a time after the injunction was granted, would not have produced the effect contended for, even without the saving.

Another ground urged for dissolving the injunction is, that there is no equity in the bill. To this there are two answers:" (1) That this is a bill seeking for a discdvery of facts, to enable the plaintiff to defend himself at law; if the court, instead of requiring, as a condition upon which the injunction was granted, that the defendant should, confess judgment, had merely enjoined the issuing of an execution, the case stated in the bill is proper for an account; and the injunction was granted for want of an answer. ' (2) If the bill does not state a case proper for the .equitable jurisdiction of the court, the objection should be presented in the form of a plea of demurrer, and not upon a motion to dissolve the injunction.

Another ground for this motion is, that the-plaintiff has not prosecuted the cause with due diligence, so as to bring the defendant into contempt for not answering the bill. Where the injunction is continued to the hearing, the court will dissolve the injunction, if it appears that the plaintiff has been guilty of intentional delay, in prosecuting the cause. But it would be most unreasonable to apply this rule to a case where the defendant resides abroad, beyond the reach of the process of the court, otherwise than as he may be affected by the service of it upon his attorney at law, under a special order of the court. In such a case the delay in the prosecution of the cause is not imputable to the plaintiff. On the contrary, the defendant may be brought into contempt, if within a reasonable time he does not answer the bill; and it is the duty of his representative “in court to obtain his answer. We have satisfactory evidence in this ease that the attorney of the defendant, upon whom the process was served, has performed this duty; as it appears by the affidavit of Mr. Gibson, that a copy of the bill had been transmitted by him to Canton before the one which the plaintiff sent, and which the same witness delivered to the defendant. The motion for dissolving the injunction, therefore, is overruled.

We feel more difficulty in deciding upon the motion of the plaintiff, that the bill should be taken pro confesso. It has remained unanswered for five years, since it was filed, and four years since the order of the court that service of the subpoena üpon the attorney at law, should be deemed sufficient. It is further proved that copies of the bill have been forwarded to the defend-' ant, not only by his attorney at law, but by the plaintiff- in equity, and that sufficient time has since elapsed for his answer to have been transmitted to this court. But, as it does not appear that an appearance has been entered by. that attorney, or that a pro forma attachment has been served upon him, it would be irregular to take the bill pro confesso. This motion therefore, must, for the piesent, be overruled. But it may be renewed at the next session of the court, upon affidavit of the service of this process.