15 Ga. 76 | Ga. | 1854
delivering the opinion.
The bill in this case, is for both discovery and relief. It was brought in the county of Troup. The defendants resided in the county of Baldwin. One of the defendants had sued the plaintiff, at Law, in the county of Troup; and the object of the bill, in part, is to enjoin that suit, and to discover evidence by which to defend it.
The defendants insisted, that, as they resided in Baldwin, and the suit against them was in Troup, the Court had no jurisdiction over them. They did this, both by demurrer and by plea. The Court over-ruled them, and held that it had jurisdiction. Was the Court right? This is the great question in the ease.
The rule, however, is only applicable to such cases as are “ civil cases”. And this^Cfourt has determined the expression, “civil cases,” as used in the Constitution of 1798, not to include cases in Equity. Gilbert vs. Thomas and others, (3 Ga. Rep. 578.) Be that so, still, “,the grounds and principles” of the rule include cases in Equity. In Equity cases, there are appeals, ne exeats, stays of execution, judgment liens and so ’forth, the same as in cases at Law. And the county of one’s residence, is the place in which it is easiest for him to find sureties and bail, in cases of the one sort, or in cases of the-other.
So when you wish to discover whether there aré any judgment liens upon a man’s property, who asks you for credit, there is no more reason why you should be forced to run into every county in the State, to look for judgments in Equity against him, than there is why you should do so,,to look for judgments at Law.
The-“ grounds and principles” of the rule which requires persons, in £,£ civil cases”, to Be sued in the counties of their residence extend, therefore, to cases in Equity.
Are there no exceptions to this rule ? It is argued for the plaintiff in error, that the case made in the bill, is an exception to it; that that case is one of those cases which is governed by
Of this rule, Judge Story says, “ Mr. Eonblanque has remarked, ‘ there are some cases in which, though the plaintiff might be relieyed at Law, a Court of Equity having obtained jurisdiction for the purpose of discovery, will entertain the suit for the purpose of relief. But there certainly are other cases When, though the plaintiff may be entitled to- discovery, he is not entitled to relief. To strike out the distinguishing principle upon which Courts of Equity have in such cases proceeded, would be extremely useful. But after having given considerable attention to the subject, I find myself incapable of reconciling the various decisions upon it’. What the learned author desired to ascertain, has been found to-be equally embarrassing to subsequent inquirers; and there is a distressing uncertainty in this branch of Equity Jurisdiction in England”. (Id. §66.)
The idea that such á rule as this exists, was, in a late case, treated rather contemptuously, by Yice Chancellor Wigram. He said, “ the first proposition relied upon by the plaintiff, in support of the equity of his bill, was this : that the case was one in which the right to discovery, would carry with it the right to relief. And, undoubtedly dicta are to met with, tending directly to the conclusion, that the right to discovery may entitle a plaintiff to relief also. In Adley vs. The Whitstable Company, (17 Ves. 329,) Lord Eldon says, “ there is no mode of ascertaining what is due, except an.account, in a Court of Equity; but it is said, the party may have discovery and then go to Law. The answer to that is, that the right to the discovery carries along with it the right to relief in Equity”. In Ryle vs. Haggie, (1 Jac. & Walk. 236,) Sir Thomas Plumer said, “ when it is admitted that a party comes here properly for the discovery, the Court is never disposed to' occasion a multiplicity of suits, by making him to go- to a Court of Law for relief”. And in McKenzie vs. Johnson, (4 Madd. 373,)
“Now, in a cáse in which I think that justice requires the Court, if possible, to find an. equity in this bill, to enable it once for all, to decide the question between the parties, I should reluctantly deprive the plaintiff of any remedy to which the dicta I have referred to, may entitle him. But I confess, the arguments founded upon these dicta, appear to me to be exposed to the objection of proving far too much. 'They can only be reconciled with the ordinary practice of the Court, by understanding them as having been uttered with reference, in each case, to the subject-matter to which they were applied, and not as laying down any abstract proposition, so wide as the plaintiff’s argument requires! I think this part of the plaintiff’s case, cannot be stated more highly in his favor than this: that the necessity a party may be under, (from the very nature of a given transaction,) to come into Equity for discovery, is a ■circumstance to be regarded, in deciding upon the distinct and independent question of equitable jurisdiction. Further than this, I have not been able to follow the plaintiff’s argument”. (2 Hare. R. 293.) I quote from note 1 to section 64, k, of Story’s Eq. Jur. The italics, except of the word dicta, are mine.
It is not necessary to say , whether we do not consider the Yice Chancellor to be right or not. In reply to the argument, that this supposed rule applies to the case in hand, it is sufficient to say:
1. That it has never been applied to such a case in England —such a case could never "have arisen in England. The question of the residence of 'the defendant, as affecting the right of suit against him, cannot arise there, because the Court of Chancerj there, sits at but one place, and every person who
2. That this rule, if it is one, comes, in the present case, in conflict with the rule, “ equity follows the law”, which is the superior rule; and so it must yield to that rule.
8. That this rule, if it exists, may, in another way, be made ; available to the plaintiff in the bill, if she chooses to avail her.self of it. She may file a bill, just such as the present one is, in the county of the residence of the defendants, and by that ■ bill, get the relief she prays for by this, as well as the discovery. The Superior Court of that county, equally, with the Superior Court of Troup, has power to enjoin the Common Law suit in Troup. , She may, therefore, have that suit enjoined, and the matters involved in it, and in this Equity suit, determined in an Equity suit, which shall embrace those re- . spective matters brought in Baldwin.
In respect to this maxim, “Equity follows the Law”, no •more is intended to be said, than that it applies to such a case : as this. There is nothing inconsistent with this, in the decision of this Court, in Jordan et al. vs. Jordan, a case between these same parties. (12 Ga. Rep. 77.) In the opinion of the Court, in that case, there are expressions which, perhaps, in effect, deny the application of this maxim to this case; but if they do, they are but obiter dicta. The whole spirit of the opinion is in favor of the applicability of the maxim.
In the Common Law suit, the complainant in Equity had pleaded in defence, a plea of payment. The matters set forth in her bill, were sufficient, if proved, to establish the plea. In the bill, she says this, too: “ that she cannot prove
Now, it is true, that this, in strictness, is not a good allegation, to serve as a foundation for a bill of discovery. Strictly speaking, the particular facts which cannot be proved without a discovery, should be stated. But the allegation is amendable— its defectiveness was not specially insisted upon, in the demurrer; the demurrer, on the contrary, was put upon the single ground that the defendants resided -in the county of Baldwin; the Court below, probably did not have its attention even drawn to this point. For these reasons, the plaintiff in the bill ought not to receive any prejudice, fpr the present, in this Court, for this defect. We assume, for the present, this allegation to be such as it should be—such as it must be made to be, by amendment, to save the bill, if hereafter specially attacked on this ground. Assuming this, the bill is a good bill for discovery.
The question of jurisdiction, as connected with the residence of the defendant, does not extend to bills for mere discovery. The rule of Law—the Constitutional rule, is confined to the trying of cases. Bills of discovery are proceedings, not for trying cases, but merely for obtaining evidence. That they should be brought in the county of the residence of the defendant, and no where else, is not within the rule, or the grounds and principles of the rule.
To the extent of discovery, therefore, the Court below was light in holding that it had jurisdiction of the defendants.
But it was said that Carter, not being a party to the Common Law suit, could not be a party to the Equity suit; that he was a mere witness.
The bill states that Carter is jointly interested with Jordan in the note sued on at Common Law, and in the Common Law suit and in all the matters which go to make out the payment of the note; that is, which go to establish the defence at Common Law.
This statement the demurrer admits to be true.
Taking this statement -to be true, and bearing in mind that
If the decisions which existed at the time of our Revolution, are to govern, he is; if the decisions which have been made subsequently are to prevail, he, perhaps, is not.
“Amere witness cannot be made a defendant for discovery of what he is examinable to, unless he 'is interested. If the ■bill charges he is interested, the defendant mask plead and support it by an answer, denying that allegation, and cannot demur”. This is the result of Lord Hardwick’s decision in Plummer vs. May, made in 1749-1750. (1 Ves. 426.)
■ . This rule is cited as Law, in a recent elementary work of the ^highest character, Daniel’s Chancery Practice, 1, 397. There •exist, however, several late decisions, which must be admitted to. be rather opposed to its being Law. Still, none of them ex- ■ pressly over-rule the case which establishes it. Plummer vs. May. These decisions are, Fenton vs. Hughes, (7 Ves. 287.) Irving vs. Thompson, (9 Sim. 17.) Glyn vs. Soares, (3 Mylne & Keen, 450.) The decision in the last case was also repeated in the House of Lords, (1 West.) Of these, the oldest is of the year 1802, and the others of the year 1839, and later.
The case of Glyn vs. Soares was also in the Court of Exchequer ; and in that Court the case was decided in accordance with the rule in Plummer vs. May, and it was decided by an able man, Lord Abinger. It was from this decision of Lord .Abinger’s, that the case was carried, by appeal, to the House of Lords. They reversed the decision, but a Queen was the ¡¡party in whose favor the reversal was to operate—the Queen of Portugal—and it is almost impossible not to feel that this or some other improper thing had an influence upon the House of .Lords, in the production of the decision. The decision is certainly at variance with the fundamental maxim of Equity, that ¡a Court of Equity will give relief or assistance, in cases in which a Court of Law cannot. For in the case, as it was before the House of Lords, a Court of Law could not give the remedy or assistance required, viz: a discovery from the Queen of Portugal. She was beyond the reach of any process of any
But a Court of Equity could have accomplished the object. It could have stayed the suit at Law, until her Majesty, the Queen, had seen fit to answer the bill. And principle, it seems, requires that the Court of Equity should have been allowed .to do this, as Lord Abinger tried to, make it do it.
This being the state of the English decisions, what is a Court of Georgia to do ? It is to follow the decisions of the older,date—-of the date prior to the Revolution of 1776. The mere-fact that since the Revolution, decisions have been made in-England, contrary to those made before, is not, -to Georgia, evidence that those made before were wrong. ■ It may serve to induce the Courts of Georgia to recur to first principles, to settle the conflict; it can do more.
Let us, then, in the present case, do this—recur to first prihpies. :
It is a first principle, that a Court of Equity will give relief or aid, if a Court of Law cannot.
Can a Court of Law give the remedy or aid sought by this bill, with respect to Carter ?
It is at least somewhat doubtful, whether a Court, of Law can compel a person to answer as a witness, with respect to any matter which may subject him to a civil action or to a pecuniary loss; or which may charge him with a debt. This was considered so doubtful by the British Parliament, that they passed a Law to remove the doubt. (1 Greenlf. Ev. sec. 450.)
It is never certain that the summons of a Court of Law will reach a person as a witness; nor, if it reaches him, is it certain.
If the person wished to be used as a witness in the Common Law case, occupies such a relation to it as makes him, in effect, if not in form, a party to it, a Court of Law cannot compel him to swear against himself as a witness. (10 East. 402. above.)
Now this sort of relation is the one which Carter, according to the demurrer, occupies towards the Common Law suit. The note sued on, is his and Benj. Jordan’s, jointly. The suit is for their joint use. It must, therefore, equally be a bar to any other suit, by Carter as by Jordan. Jordan is but the agent in the suit, for Jordan and Carter. This being so, the Court of Law can no more compel Carter to be a witness for the defendant in the Common Law suit, Mrs. Jordan, than it can compel B. Jordan to be.
But a Court of Equity can compel a discovery from either or both. According to principle, therefore, it seems that it should compel it. .
But the defendants, by pleas, denied the allegations in the bill, to the effect that Carter was equally interested with Jordan, in the note and suit. They pleaded that Carter had no interest in the note or the suit., If this was true, the reasons for making Carter a party had' no existence, and he should not have been made one. The Court below erred, therefore, in holding the pleas, in this respect, to be insufficient. If true, they were sufficient.
But one other decision remains for notice—the order requi
