Lucas V. JANUARY 1830. equitable tribunals, and break down those barriers which have been wisely raised, to prevent either Court from encroaching on the jurisdiction of the other. Chancery Bk. of Darien. does not depend on the mere will of the Chancellor; its objects, boundaries and rules, are as definite as those of the law, and as inflexible. 1. Fontb. Eden on Inj. 3. 1 John. Ch. Rep. 188. c 11 Wheat. Rep. 103, 119. Rep. 543. 4 Ib. 409. 2 lb. 557. It is considered as assistant to courts of law, by removing impediments to the fair decision of a question therein, by compelling a discovery which may enable them to decide. It is concurrent, in most cases of fraud, accident and mistake; but in cases of concurrent jurisdiction, the Court which first obtains jurisdiction, will keep it. It is exclusive in all cases of trust, and it exercises a general jurisdiction to prevent a wrong where the positive law is silent, or inadequate to afford a remedy. a 3. The bill wants equity. The basis of jurisdiction for discovery is, that the subject of defence at law rests in the knowledge of the opposite party, and that the complainant has no other means to obtain it. Material facts must be distinctly alleged so as to enable an issue to be formed, or to warrant a decree. Where they depend on 1 John. Cl. aliunde testimony, they afford no equity. The bill is objectionable on those grounds. Again, the matter, if true, could be used at law. It is said the judgments in Georgia are subject to a defence here for want of jurisdiction there, and a case in Cowen is relied on, and other authors to support the position. Let this be granted; but it gives no equity jurisdiction; it was matter of defence to the suits in Georgia. The complainant brings himself within the qualifications of the decision in Russel v. Clark's Exr's. Í viewing the bill as one for general relief, equity has no jurisdiction, it is clearly a case of legal cognizance. 5 The Court, therefore, properly dismissed the bill, and permitted the complainant to assert his rights at law. e 4 Cowen Rep. 293. f7 Cranch 67, 39. 1 Peters U. S. Rep. 232. h7 John. Ch. 277. II. Upon a consideration of the bill, answers and exhibits, the decree was proper. It is said that the answers allege independent affirmative facts, which are not responsive to the bill, and are unsupported by proof. The cause was set down for hearing on motion of the complainant, without any extrinsic proof, and though it is held that when a cause is set for hearing on bill, answer and proof, the replication may be considerd as matter of form, and may be filed nunc pro tunc, yet when it is set for hearing on bill and answer, the doctrine is, that the whole is to be taken as true; h and the answer is evidence Lucas V. a 1 John. Ch. Rep. 131. for the defendant, unless disproved by two witnesses, a and JANUARY 1830. it may contain the circumstances corroborating the denial. It was held in a recent cause in New York, that when the answer is responsive to the bill, and within the Bk. of Darien. discovery sought, it is legal in all cases, whether it is a denial of some fact alleged by the complainant, or contains a fact set forth by way of avoidance. This position is well warranted by authority, and upon principle, when a party resorts to the confessions of his adversaries he should take the whole together. But the answers do not sustain the objection; the facts stated are within the discovery sought; they are responsive, and only set out the dependant circumstances connecting the transactions. It is said the injunction should have been made perpetual. Where the material facts charged in the bill are denied by the answer, there can be no decree against it. The equity was supposed by the chancellor who sustained the exceptions, to consist in, 1. The alleged compromise, 2. The making and indorsing of the notes by Fort, and 3. The making of the acceptance of the service of the writs in Georgia. All those grounds are disposed of by the answers. As to the effect of the judgments in Georgia, it is contended they are conclusive. If they are conclusive in Georgia, they must be so here; they must here have the same faith and credit as in Georgia. By the answer, it is admitted that the service was accepted by J. Lucas; but it is not admitted that the partnership was dissolved; and it is shewn that the complainant had notice of the pendency of the suit, and that he ratified and adopted the acts of J. Lucas, by pleading the judgments in his defence. The partnership being established, the acceptance of service by J. Lucas bound his copartner.e A partner is bound by the answer of his copartner in chancery; he may authorize an attorney to appear, and the acts of the attorney will bind the firm. The change of residence makes no difference, and his being a copartner charges him with notice of all that was known to his copartner; what the agent knows, the law presumes the principal to know, and the knowledge of one copartner is the knowledge of both. There is no allegation that John Lucas had not authority to accept service. plainant made no defence, it is his own fault. There was no dissolution of the firm. scurely charged, but is positively denied. retiring partner, there must be publication. If the com 524. b 2 John Ch. Rep. 89. c1 Cowen 711. d1 John. Ch. Rep. 211, 459. 216. 91,148. Gow on Pt. 483. 19 Johp. 139.2 Caines Rep. 255. 3 B. & P. 255: 2 H. & M. 195, 56, 57 577. 26. g Littells Selected Cases h Gow on Pt. 305, 306, 311. 6 John. Rep. 144. Chit. on The fact is ob- bills 57 to 52.. 3 Stark. Ev. Lucas JANUARY 1830. be actual notice to those who have had previous dealings, and proof of publication in a gazette, as to subsequent dealers. The circumstances alleged in the bill from Bk. of Darien. which notice is sought to be implied, are unknown to the law a V. a 3 Kent Com. 1 to 25. b John. Ch. As to the ratification, and adoption by the complainant of the acts of John Lucas, adoption is either implied or express: Implied from circumstances, such as community of interest, long silence and acquiescence with full knowledge: Express adoption may be by pleading, &c. and 17,396. 1 Atk. adoption for one purpose is adoption for every purpose. Rep. 250. 3 Marshall 515. 1 Litt. 628.2 Ib. 629. 2 Ves. 12,618. 1 Ves. jr. 122. 4 Bibb. 451. 3 Atk. 715. 2H. & M.391. S. Rep. 146. Paley on Agency 143, 145, 149, 150. 1 Peters U. 4 Cowen 24, 492. Gow. 59, 66, 70. 2 Strange 350. 10 East Paley 11, 35, 209. Note F. Ves. 202.3 Atk. 294, 392, 650. 2 lb. 242. Equity Cases Ab. 28. d7 John. Ch. Rep. 182.31b. 275. 2 H. & M. 139. 2 Munf. 1. e 1 Starkie Ev. 242, 252 1 Peters U.S. Rep. 686,328. 1 Mass. Rep. 999.5 Litt. 349. 19 Jon. 162.7 Cr. 481. 3 Wheat. 234. 17 Mass. Rep. 515. 2 Dallas 302. 4 Munf. 241. f4 Cr. 241. g 7 Cr. 481. 3 Wheat. 234. h 7 John. Ch. Rep.303. That John Lucas was a stockholder and director, is no notice to the bank. When he became a borrower, he ceased to be a lender; his interest became adverse to the interest of the bank. Besides, in the case of a corporation aggregate, the knowledge of one copartner, is not the knowledge of the others. c Chancery cannot enter into the merits of the judgments at law, d and from the facts shewn, the judgments render- . ed in Georgia are conclusive. They come within the most strict construction of the constitution and laws of the United States, It is not necessary to inquire into the cases where it is apparent no service or notice was had; and even if it were, embarrassing questions might arise. The presumption is, that every Court is the best judge of its own jurisdiction. This Court cannot supervise nor correct the errors of Courts of other States; the exercise of such power would involve a legal absurdity. It would require that the doctrine of the supreme judicial tribunal of the Union, as laid down in Mills v. Duryce & should be overturned; and the construction of the paramount law by that Court, should be binding on all State Courts. 4 The Supreme Court of the Union acts on this principle; it does not presume to construe State laws; the Courts of Georgia are certainly best acquointed with its laws and practices. It is not because of their abstract justice, that the decisions of the Courts of other States should be en forced here, it is because they are res adjudicata; and if judgments of other States were merely prima facie evidence, and it were necessary again to prove the original consideration, the difficulties on account of absence and death of witnesses and loss of papers, &c. would amount to a denial of justice in many cases, Then if the judgments in Georgia are conclusive, all the matters of the bill concerning their consideration, fall to the ground. When the foundation of equity is taken JANUARY 1887. away, all the dependent circumstances become immaterial, Lucas and it is unnecessary to inquire if they be answered or not. a v. Bk. of Darien. 338. 1 John. Ch. 436.2 ib. 228, Rep. 98, 165, 4 ib. 566. Every one is bound to take care of his rights in due season; and as from the record, it appears the appellant a 2 Maddox had an opportunity of defending himself, if he failed to do so, it is his own neglect, and under such circumstances equity can afford him no relief. It is to be presumed that if the appellant had a substantial defence, he would have availed himself of it when sued on the seven notes; but instead of this, he takes shelter under the judgments rendered in Georgia, insisting they are good and valid while they protect him, and when they are used against him, he says they are void and of no binding effect. Doctrines which produce such a result cannot be sound, nor can they receive the sanction of any enlightened tribunal. HITCHCOCK, in reply. If proper partie shad not been made, the proper course would be to reverse and remand, so that they might be made; but proper parties are made. The transactions concerning which a discovery is sought, took place between John Lucas and the branch bank; no answer is called for from the parent bank, but an injunction is prayed against the bank of Darien. This was sufficient. By statute, the clerk is required to issue subpoenas against defendants, and it would have been necessary if the parties did not appear, but the bank voluntarily appeared, and twice moved to dissolve the injunction. This is a waiver of process, and should be so considered in a suit prosecuted by a complainant in good faith. When a Court of Chancery obtains jurisdiction for one purpose, it will retain it for all purposes, to do complete justice. The defence at law is at least doubtful. The records from Georgia do not disclose who acknowledged service of the writs; it merely appears in the name of "J. & W. Lucas," but by which partner is not shewn by the records. Another ground of chancery jurisdistion is, that the plaintiffs at law are seeking to enforce an unconscientious claim, and to profit by a fraud. It is said that the defence at law is not set out; true that is necessary in a bill of discovery, but this is not a bill of discovery. The bill seeks relief, and contains equity. It charges a change of pursuits by the appellant; his removal to Alabama before the legal existence of the bank, and other circumstances which afforded evidence of a dissolu 6 ib. 87, 479. eLaws of Ala. Dig. 492. d 2 John. Ch. Rep. 217. e7 John. Ch. Rep. 149. 17 John. Rep. King v. Bald win. Lucas JANUARY 1830, tion of the copartnership. The bank was guilty of gross negligence in not calling for any evidence of the existence. of the copartnership under such circumstances, before disBk. of Darien. counting to so large an amount. V. a Campbell & Cambrelengs Dig. 403. The defendants have not sufficiently answered the bill. A defendant is bound to answer fully, and if he sets up matter of avoidance, such matter must be proved. a Where a fact is averred in a bill, and denied in the answer, and the proof is in the possession of the defendanat, its production will be required as much as if it was to an affirmative independent fact. A party cannot be required to prove a negative. All the negative facts charged in the bill and which are denied by the answer, should have been proven at the hearing. On an inspection of the answer, it will be seen that each admission is pregnant with a denial. The answer should have stated the circumstances from which the knowledge of the defendant is derived, and should not have stated the conclusions of the defendant; or, it should have expressly admitted or denied facts. One partner cannot delegate an authority to bind the firm by deed, even though in some cases he might himself have power to do the act. It is said that by pleading the judgments in Georgia in his defence, the complainant has adopted them. This ground is untenable. It may be remarked that the exhibits are not proven; there is no certificate by the clerk of their verity. But if they were before the Court, it would make no difference. A defendant at law, may plead as many pleas as he thinks proper, and will not be precluded by any of them. A party is not bound by an admission 1 Starkie's made in the form of a plea, nor can a party avail himself of such an admission made by his adversary. Each plea must stand by itself. The replication of nul tiel record was certainly as conclusive on the bank, as the pleas could possibly be on the appellant. Ev. 292, 2 ib. 28. c 1 Starkie's Ev. 388. d 1 Starkie's Ev. 21. 1 T. R. 125. By JUDGE SAFFOLD. Previous to any examination of the merits of this cause, it is necessary to take a slight notice of the exceptions urged against the regularity and sufficiency of the bill. It is objected, that the bill is fatally defective in not having prayed process against the principal bank, as well as its branch; that all persons having an interest should have been made parties; that praying relief against the agent, does not make the principal a party, and that none can be regarded as a party. |