Atterberry v. Knox & McKee

38 Ky. 282 | Ky. Ct. App. | 1839

Judge Ewing

delivered the Opinion of the Court.

This case was formerly before this Court, on the appeal of the present appellees, and will be found reported in 3 Dana, 580.

Upon the return of the cause to the Circuit Court, upon peti of the defendants, as nonresidents, they were permitted to put in their answer; in which they charge, that, before and at the time of making the bill anc] the endorsements thereon, the complainant was doing business as the agent of the Bank of Maryland, at Wheeling, in the State of Virginia, and received notes of said bank, and’was loaning and issuing the same as money, on the usual banking terms, and was then and there doing a banking business, and that the bill of exchange was given at the instance of the complainant, for the accommodátion of the drawer, for the loan of said notes, and in which a rate of interest above six per cent, per annum, was exacted and secured contrary to the statute of Virginia; and that said bill was, therefore, null and void.

And, at a subsequent' term, the defendants filed an amended answer, in which they amplify the charge made in their former answer, and allege, in more specific terms, that the complainant was- the agent of, and associated with, the Bank of Marylánd — a banking institution not incorporated in Virginia — in carrying on and doing the business of a bank, in issuing and loaning bills- and notes not the currency of the United States; and "that said bill was given for the loan of notes or bills issued, as aforesaid, in violation of the statute of Virginia,, in such case made and provided. This' answer, as well, as the originales made a cross bill, and the complainant required to answer the same, as well as to answer various interrogatories propounded.

Two statutes of Virginia are referred to and exhibited; one verbatim in its terms with our statute of 1798. against usury. 2 Stat. Law, 852. The other, “more-effectually to prevent the circulation of notes emitted, by unchartered banks,” enacted the 24th of February, 1816, not only declares null and void all bonds, bills,, notes, or other securities, made to such association, or any member, officer or agent thereof, but imposes high penalties and forfeitures upon all concerned in carrying on the business of such banking association, as member, officer or agent thereof.

This cross bill was filed at the April term, 1836, and remaining unanswered or otherwise replied to, was taken for confessed at the June term, 1837, and the cause, upon the argument of the defendants’ counsel, submitted to the Gourt; and upon a subsequent day of the' term; a decree rendered in bar of the complainant’s demand. And the complainant has appealed to this Court.

A deft, in oh. is swer anydeharge confessed would subject him to punishment,penalty or forfeiture, When a party submits to answer, he must an to this generaí many exceptions ouíof which te where the answer respndent or for Sturefine The objection, in such a case, may answer; but the better practice is to plead or de- When a bill is such facte as are allegedin the bill sumed with ent knowledge but not answer as’ confessed!— ,... When a bill, not answered at all, fesXed^oXwant of an answer, every specific charge is consid—whether”114^ the*13defendant’s own ^knowledge tho’ the confesfeet thedeft.Stoa criminal, prosecution, or forfeiture: not only betoanswer iXtaken as a contempt which, subjects the deft, to such consequences;— but because it is understood to be a concession of the matters alleged, and a waiver of objections to a decree upon them.

The cross bill having called upon the complainant for a discovery of matters, which may subject him to pains and penalties, and'a forfeiture of his demand — the queson's Presented whether he was bound to answer, or jf he failed to ‘do so, could the matters of the cross bill, be taken tor confessed, and a decree rendered on such confession, against the complainant’s demand.

It is well established, that no one is bound to make answer to, or discovery of, any matter which may subject him to a penalty or forfeiture, or expose him to infamous punisment. Mitford’s Pleadings, 158, &c. Smith vs. Read, 1 Atk. 526; Harrison vs. Southcoat, 1 Atk. 528; Boteler vs. Allington, 3 Atk. 453; Chauncy vs. Tahourden, 2 Atk. 392; Bird vs. Hardwick, 1 Vern. 110; Sharp vs. Carter, 3 Pr. Williams, 375; Wrottesley vs. Bendish, 3 Pr. Wms. 236; Chauncy vs. Fenhoulet, 2 Ves. 265; Lord Uxbridse vs. Staveland, 1 Ves. 56.

, Hut. how shall a party avail himself of his right to obJect to a discovery of such matters? It has been held as a rule be submitted to answer, he was bound to answer- fully. Cookson vs. Ellison, Bro. Chy. Rep. and authorities referred to in note a; Cartwright vs. Hately, same, 3 vol. 238; Shepard vs. Roberts, 3 vol. 239; Williams vs. Farington, 2 Cox, 202; Facton vs. Brown, 7 Ves. 288; Taylor vs. Milner, 11 Ves. 241.

But there are many exceptions from this rule, and no cases are more clearly excepted from its operation, than those in which the objectionable matter is of that najure which may subject.the respondent to a penalty or forfeiture, or punishment. In such cases, the objection maybe saved in the answer. 1 John. Chy. Reps. 65, Phelps vs. Prevost, 4 John. Chy. Reps. 21-4, note to the case of Cookson vs. Ellison, supra.

But the better practice is certainly to plead or demur.

But if no answer, plea or demurrer be put in, how gfogji suc]1 matter be disposed of? Shall the bill be taken for confessed for that, as well as other matters alleged? Or shall such matter be treated by the Court, as objectionable, and to which the respondent is not bound to make discovery, and the bill be taken for confessed only, for the other matters to which he may be bound to make discovery ?

oessary, because the compt. may Under the statute of this State, a bill may be taken for confessed at the term next succeeding that to which the sub poma is returned executed, without any other pro ceeding — unless the deft, (being an infant, lunatic, &c.) is incapable of answering. — Or an answer may be insisted on, and coerced by attachment: which is sometimes nebe unable to make his allegations so specific as to authorize a decree, without a discovery.

In our researches, we have been able to find no case in which, if a bill has been taken for confessed, it has not been taken for confessed for all the specific charges made, whether those charges are of a character which involve in them a forfeiture or penalty, or not. The practice has always been, at the proper stage, to take all for confessed, unless the defendant be an infant or lunatic, or for some other cause be incapable of defending.

And on principle, we perceive no reason why it should not be so. The failure to answer or appear and make defence, is not only a contempt, or quasi contempt, to the authority of the Court, but also implies a concession of the matters alleged, and a waiver of all objection to a decree upon them. Hence, it has been repeatedly settled that, if an answer be put in, the bill can be taken for confessed only, for those matters not responded to, which are charged, or are presumed, to be within the knowledge of the respondent. But if he fail to answer at all, it may be taken for confessed for those matters not charged, or presumed to be within his knowledge, as well as those which are.

Formerly, a bill could not be taken for confessed until the defendant had been pursued by the various steps for contempt, to sequestration. But now, by our statute, the confession may be' taken, upon his failure to answer, at the next Court succeeding the one at which the subpoena may have been returned executed. But for his failure to answer them, he is in contempt, and an attachment may be sued out against him to coerce an answer. And in many cases, it may be necessary to take this course, as the matters alleged may be confined to the knowledge of the defendant, and the complainant be unable to make the charges of his bill sufficiently specific to entitle him to a decree, upon confession, without extracting them from the conscience of the defendant. But being in contempt for failing or refusing to answer, where the allegations are sufficiently specific, it would seem proper, as a just penalty for his contempt, as well as from the concession and waiver of objection implied in his failure or refusal — to take the bill pro confesso, in it broadest latitude.

To a bill in eh. to subject the property of non-residents to the payment of a bill of exchange indorsed by them, they answer,¿¡charge, that the bill was negotiated for a loan made at Wheeling Va. by the compt. as an agent transacting buitate, by any association &c. not there incorporated; & by which thebills notes and bonds, so passed, are declared null and void, and all concerned as agents &e. are liable to heavy penalties. The compt. being required to answer this cross to doo — itiPaf legations might be taken as confessed, and the demand asserted in the bill, and the attachment, defeated. — But the Bank of Maryland is an indispensable party.

We, therefore, conclude, whenever a bill is taken pro confesso, the whole of the matters charged, whether they involve a penalty, forfeiture, infamous punishment or not, or are confined to the knowledge of the defendant or not, ai’e taken as true, and a decree pronounced upon them as if they were true.

If, therefore, the matters charged in the cross bill be taken as true, they exhibit a state of case which shows, most clearly, that the complainant ought not to have a decree.

We deem it unnecessary to determine whether the complainant would, or would not, have been entitled to a decree for the principal, without interest, upon taking the bill for confessed under the operation of the saving in the first mentioned statute — as by the latter statute, the security is declared void as to principal and interest without any saving in case of discovery in chancery.

But if the allegations of the cross bill be true, the Bank of Maryland was a necessary party. According to those allegations, the bank was the principal in interest in the bill, and the complainant the mere agent associated in interest with the bank. If so, her interest is directly involved in the controversy, and should not be concluded without giving her an opportunity to be heard. That institution should, therefore, have been brought before the Court, on the cross bill, and it was premature and irregular to take the matters alleged as true, and try the cause without it.

It is, therefore, the opinion of the Court, that the decree of the Circuit Court be reversed, and cause remanc*ed> that the Bank of Maryland may be brought before the Court, and further proceedings be had.