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JANUARY 1830. equitable tribunals, and break down those barriers which

have been wisely raised, to prevent either Court from enLucas

croaching 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.

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 que 1. Fontb.

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 com1. Eden on Inj. plainant has no other means to obtain it. b Material facts 3.1 John. Ch. Rep. 188. must be distinctly alleged so as to enable an issue to be cll'Wheat. formed, or to warrant a decrec. c Where they depend on Rep. 103, 119. olindatos di Sohn. Ck: aliunde testimony, they afford no equity. The bill is obRep. 543. jectionable on those grounds. Again, the matter, if true, 21b. 557.

could be used at law. It is said the judgments in Georgia

are subject to a defence here for want of jurisdiction there, c 4 Cowen and a case in Cowen is relied on, e and other authors to supRep. 293.

port 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 17 Cranch 67, qualifications of the decision in Russel v. Clark's Exr's. Í 39.

viewing the bill as one for general relief, equity has no El Peters U. jurisdiction, it is clearly a case of legal cognizance. The *3. Rep. 232.

Court, therefore, properly dismissed the bill, and permitted the complainant to assert his rights at law.

II. Upon a consideration of the bill, answers and exhibits, the decrec 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 15 John: C. nroof. the replication may be considerd as matter of Rep. 223,

form, and may be filed nunc pro tunc, yet when it is set Rep. 380,3.

Co. for hearing on bill and answer, the doctrine is, that the

whole is to be taken as true; h and the answer is evidence

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for the defendant, unless disproved by two witnesses, a and JANUARY 1930. it may contain the circumstances corroborating the denial. It was held in a recent cause in New York, that Ly 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

a 1 John. Ch. denial of some fact alleged by the complainant, or con- aR tains a fact set forth by way of avoidance.c This position 10 John. Rep. is well warranted by authority, and upon principle, when john Ch. a party resorts to the confessions of his adversaries he Rep. 89. should take the whole together. But the answers do not cl Cowen? 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 sus

who sus Rep. 211,459. tained the exceptions, to consist in, 1. The alleged com- 216.91, 148. promise, 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 'Ae

1 195, 56, 57 partner is bound by the answer of his copartner in chance. 483. 19'Johp. ry;s he may authorize an attorney to appear, and the acts

Rep. 255. of the attorney will bind the firm. The change of resi- 3 B. & P. 255. dence makes no difference, and his being a copartner 24. & M. 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 g Littello Se. the knowledge of both. There is no allegation that John lected Cascs Lucas had not authority to accept service. If the com- h Gow on Pt. plainant made no defence, it is his own fault. &

305, 306, 311.

6 Johp. Rep. There was no dissolution of the firm. The fact is ob- 144. Chit. on scurely charged, but is positively denied. To protect a bills 57 to 52

3 Stark, Ev: retiring partner, there must be publication. h There must 1976, 1031.

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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 Com. As to the ratification, and adoption by the complainant 1 to 25, of the acts of John Lucas, adoption is either implied or b John. Ch. express: Implied from circumstances, such as community Rep. 250. of interest, long silence and acquiescence with full knowl515. 1 litt. edge: Express adoption may be by pleading, &c. and 17,396. 1 Atk. adoption for one purpose is adoption for every purpose. b 628. 2 Ib. 629. 2 Ves. 12,618.

:

That Lohn Luns was

That John Lucas was a stockholder and director, is no 1 Ves.jr. 122. notice to the bank. When he became a borrower, he 3 Atk. 715.

ceased to be a lender; his interest became adverse to the

Ce 2H. & M.391. interest of the bank. Besides, in the case of a corporation

· aggregate, the knowledge of one copartner, is not the S. Rep. 146. Paley on A. knowledge of the others. c gency,243,20 145, 149, 150.

Chancery cannot enter into the merits of the judgments 4 Cowen 24, at law, d and from the facts shewn, the judgments render

•59, ed in Georgia are conclusive. e They come within the 66, 70. 2 Strange most strict construction of the constitution and laws of the 850. 10 East United States. It is not necessary to inquire into the 9 Cr. 161. cases where it is apparent no service or notice was had; c Paley 11, 35, and even if it were, embarrassing questions might arise. 203.3 Ves.

.". The presumption is, that every Court is the best judge of 202. 3 Atk. its own jurisdiction. This Court cannot supervise nor 294, 392, 650. 2 lb. 242.

· correct the errors of Courts of other States; the exercise Equity Cases of such power would involve a legal absurdity. It would Ab. 28.

require that the doctrine of the supreme judicial tribunal Rep. 182.31b. of the Union, as laid down in Mills v. Duryce & should 275. 2 H. & be overturned; and the construction of the paramount law M. 139.

by that Court, should be binding on all State Courts. I c1 Starkie The Supreme Court of the l'nion acts on this principle; 1 Peters U.S. "

s, it does not presume to consirue Staie laws; the Courts of Rep. 686, 328. Georgia are certainly best acquointed with its laws and DANass: Rep. practices. It is not because of their abstract justice, that 299.5 Litt. 349. 19 Jon. the decisions of the Courts of other States should be en162.7 Cr. 181. 3 Wheat. 234.

132 forced here, it is because they are res avjudicata; and is 17 Mass. Rep. judgments of other States were increly prima facie evi515. ? Dallas dence, and it were necessary again to prove the original 241.

consideration, the difficulties on account of absence and

death of witnesses and loss of papers, &c. would amount 47 Cr. 481. to a denial of justice in many cases. 3 Wheat. 234. Then if the judginents in Georgia are conclusive, all the ha 7 John. Ch. Rep. 303. ** matters of the bill concerning their consideration, fall to

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the ground. When the foundation of equity is taken JANUÁRY 1880. away, all the dependent circumstances become immaterial, and it is unnecessary to inquire if they be answered or not. a

Bk. of Darien, 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 358. so, it is his own neglect, and under such circumstances equity can afford him no relief. It is to be presumed b1 John. Ch. that if the appellant had a substantial defence, he would 436.2 ib. 228;

Rep. 98, 165, have ayailed himself of it when sued on the seven notes; 4ib. 566. but instead of this, he takes shelter under the judgments

6 ib. 87,479. 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 subpænas against defendants, c and it would have been necessary if the par- cLaws of Ala. ties did not appear, but the bank voluntarily appeared, Dig. 492. and twice moved to dissolve the injunction. This is a waiver of process, and should be so considered in a suit

d 2 John, Chi prosecuted by a complainant in good faith.

Rep. 217. When a Court of Chancery obtains jurisdiction for one purpose, it will retain it for all purposes, to do complete justice. e The defence at law is at least doubtful. The re-ee

Rep. 149. cords from Georgia do not disclose who acknowledged 17 Jobp, Rep. service of the writs; it merely appears in the name of King "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 dissolua

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JANUARY 1830. tion of the copartnership. The bank was guilty of gross

negligence in not calling for any evidence of the existence Lucas

of the copartnership under such circumstances, before disBk. of Darien. counting to so large an amount.

The defendants have not sufficiently answered the bill.

A defendant is bound to answer fully, and if he sets up Cambrelengs

de matter of avoidance, such matter must be proved. a Dig. 403. 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 01 Starkie's made in the form of a plea, b nor can a party avail himself Ev. 292, 2 ib.

of such an admission made by his adversary. Each plea c1 Starkie's

must stand by itself. « The replication of nul tiel record à 1 Starkie', was certainly as conclusive on the bank, as the pleas Ev. 21. 1 T. could possibly be on the appellant.

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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.

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