Schermehorn v. L'Espenasse , 21 F. Cas. 687 ( 1796 )

PETERS, District Judge.

If this were not a case, in which an irreparable injury might be done, by allowing the stock to be placed beyond the jurisdiction of the court, it would, perhaps, be proper to insist upon a more rigid practice than has been pursued. But the dissolution of the injunction would, probably, put the property out of the power of the court; and incapacitate us from doing justice hereafter to the parties, according to.the real merits of their respective pretensions. It is proper, however, to observe, that I do not think an affidavit to the contents of a bill, is the only foundation for issuing an injunction. Harrison, on this point, is himself a respectable authority, though he cites no other book: but, independent of all written authorities, reason and the dictates of justice require, that other proof besides the party’s oath should be allowed. , Nor, under all the circumstances, can I decide, that the delay which has occurred is without a reasonable excuse. It will be proper, however, in continuing the injunction, to apprise the complainant, that, unless some good cause to the contrary is shewn, I shall be for dissolving it, at the next term.

WILSON, Circuit Justice.

This motion is made on two grounds: — 1st. That the injunction originally issued on an improper foundation; and 2d. That there has been an unreá-sonable delay in bringing the suit to a decision under it. It does not appear to me, however, that either of these grounds, is sufficiently supported. The irregularity rests solely on the want of an affidavit; but this, though it is frequently, and, perhaps, generally, the mode of proceeding, is not, in ray opinion, the only one. In the very case now De-fore the court, the evidence of the power of attorney, operating effectually as a transfer of the property, is certainly stronger evidence, than an affidavit of the interested party. With respect to the delay, it is sworn to have happened through inadvertance and mistake; and no evidence of a wilful procrastination has appeared in the course of the discussion. On the contrary, an overture has been made to bring the merits to a hearing, as expeditiously as can be devised. It is to be considered likewise, that if the injunction is dissolved, the court put it out of their power to do effectual justice; but, if it is continued, justice can be done, eventually, to the injured party; whether the complainant, the defendant, or Messrs. Pollocks, shall establish a title to the property.

The motion refused.