Carroll v. Farmers' & Mechanics' Bank

The Chancellor.

A preliminary question is made, as to the reception of the affidavit of John A. Welles. So far as the affidavit shows that the injunction was irregularly issued, or that the officer allowing the injunction has been misled, and induced to grant an injunction contrary to law, the affidavit is admissible.

2. As to want of equity in the bill. The bill alledges, that an answer from said John A. Welles, is necessary for the enforcement and support of the complainant’s rights injhe premises.

The rule is, that the complainant shall charge in his bill, that the facts are known to the defendant, and ought to be disclosed by him, and that the complainant is unable to prove them by other testimony, and when the facts are denied, to assist a court of law in the progress of a cause, it should be affirmatively slated in the bill that they are wanted for such purpose. Brown vs. Swann, 10 Peters’ R., 502.

If this be substantially the true rule, of which there can be no doubt, the bill is insufficient to sustain the injunction to the full extent in which it was allowed.

The bill alledges various and complicated transactions, and this allegation would be equally true, whether the discovery from Welles was necessary, either in relation to original negociation with Sargeant, or in relation to the draft upon which a suit is pending. It is not stated that the discovery is neccssary to aid the defence at law, or that they are unable to prove ^0 sukjcct matter of that defence by other testimony.

R. S., Sec. 91, 374, is positive and peremptory, that no injunction shall be granted to restrain proceedings at law, where a cause is at issue, without filing a bond in such sum as the officer allowing the injunction, shall prescribe, &c.

The bill alledges merely, that the Farmers’ and Mechanics’ bank have commenced, and threaten to prosecute a suit upon a certain draft, mentioned in the bill, given by the complainant to N. O. Sargeant, now deceased, without alledging the court in which such suit is pending, or whether the suit is at issue or not.

It is urged that, as the statute is imperative upon the officer allowing the injunction, it is incumbent upon the complainant, in his bill, to show the state of the pleadings, and the court in which such suit is pending, in order to enable the officer, to whom the bill may be presented for the allowance of the injunction, to judge of the propriety of its allowance, and if allowed, to prescribe the terms, in accordance with the provisions of the statute. This ground, I deem to be well taken. It has been repeatedly decided, that courts of chancery will not sustain an injunction bill, to restrain a suit or proceeding previously commenced in a court of a sister state, or in any of the federal courts. 2 Paige, 404; 4 Cranch, 179. For aught that appears, this suit may be pending in one of the federal courts, or in the court of a sister state. It may be at issue, or even in judgment, in one of those courts. As the statute requires, peremptorily, certain things to be done where a cause is at issue, it seems necessarily to follow, that the party should, when he states that a suit is pending, show the condition of that suit, in order to enable the officer allowing the writ, to judge of, and to direct the necessary conditions.

To establish a contrary rule, would open ihe door for great abuses of the process of the court. But whether this omission may be technically termed an irregularity or not, when it is brought to the knowledge of the court, that the officer allowing the injunction has been misled by such omission, that the process of the court has been improperly abused, there can be no doubt of its duty to afford a prompt correction. The affidavit discloses the fact,- that the injunction allowed in this cause, purports to restrain the proceedings of a‘ cause not only at issue, but pending in the court of another state. So far, the affidavit undoubtedly may be received. This being apparent, there can be no room for doubt as to the duty of the court, so far to modify the injunction as to divest it of this anomaly.

In the case of Mead vs. Merrill, 2 Paige, 404, the Chancellor says: “I am not aware that any court of equity in the Union has deliberately decided that it will exercise the power, by process of injunction, of restraining proceedings which have been previously commenced in courts of another state. Not only comity but public policy forbids the exercise of such a power. If this court should sustain an injunction bill to restrain proceedings previously commenced in a sister state, the court of that state might retaliate upon the complainant, who was defendant in the suit there. By this course of proceeding, the courts of different states would indirectly be brought into collision with each other in regard to jurisdiction; and the rights of suitors might be lost sight of in a useless struggle for what might be considered the legitimate powers and rights of courts.” He further says that these principles “ may now be considered the settled law of this country. The prompt correction of this error is called for by a decent regard for the reputation of the court, and of the judicial proceedings of the state; and it is also due to the rights of the parties. The injunction must be dissolved.

Injunction dissolved.