Wilkins v. Jordan , 3 Wash. C. C. 226 ( 1813 )

WASHINGTON, Circuit Justice.

This motion is not objectionable on account of its novelty, as we know that in England, answers taken in the country are always under a dedimus potestatem to commissioners. The practice in this country, so far as we are acquainted with it, is otherwise; nor should we dike to adopt, generally, that which prevails in England. But when the defendant is merely nominal, and has not the means, and probably might not have the inclination, to give as full an answer as the ease admits of, and the interest of the party really interested demands, we should think it entirely proper to issue a commission, upon the application of the real party in the cause; particularly when it is considered, that if the answer be insufficient, the complainant alone has the power to except — which he will never do, if the answer suits his purpose. As the plaintiff. if he means nothing but what is fair, (and in this case we see no reason for suspecting the contrary,) cannot possibly be injured by the defendant's answer being taken under a commission, no notice of such a motion is necessary. But the motion to dissolve the injunction in part, cannot be listened to without a previous reasonable notice, either in writing, or by setting it down for that purpose, a sufficient length of time before the motion is made, to allow the complainant to take affidavits to support his bill. In this case, we shall direct a commission to issue for the reasons before mentioned, and not on account of any alleged impropriety of conduct in the plaintiff or his agents. Were this the only ground for such a motion, we should require notice to the adverse party, that he might he prepared with eounter-affi-davits, if he thought proper.