|
|
|
|
|
|
|
|
|
|
|
|
|
|
152 SALMON v. CLAGETT.
|
|
|
|
|
|
|
|
|
plea, or demurrer, the judge is made to say, you are not entitled to
an account unless there be a partnership; and your position is much
too wide; at that rate, if an utter stranger were to file a bill
against Child's shop, (then a great London banker,) alleging a part-
nership, it could not be sufficient to deny that any such partnership
existed. There may be cases where the court will require an ac-
count although the principal point in the bill is denied; but not in a
case like this.,(i) In a third case the plaintiff, after setting out his
title, prayed a discovery; the defendant answered, that he was a
purchaser without notice; exceptions were taken to the answer, as
being insufficient; upon which the Chancellor, among other things,
is reported to have said, that this court will never extend its jurisdic-
tion to compel a purchaser, who has fully and in the most precise
terms denied all the circumstances, mentioned as circumstances from
which notice may be inferred, to go on to make further answer as
to all the circumstances of the case, that are to blot and rip up his
title. To do so would be to act against the known established
principles of the court (j) In one other of these cases some
reasons are given; but they are very obscurely expressed; and,
perhaps, convey no other idea than the supposed inconvenience to
the defendant alleged in some of the other cases in which reasons
for the decision are given, (k)
Here then, we have before us all the reasons, that have ever been
given in favour of these exceptions to the rule. Now, it is per-
fectly manifest, that in each of these cases the reasons given are
based upon an assumption of that, against the plaintiff, and in fa-
vour of the defendant, which is the very fact about the truth of
which they are at issue. This assumption does, in effect, contrary
to the general rules of pleading, treat an answer as being as con-
clusive as a plea. (I) The custom, the partnership, or the notice, was
the very fact put in issue between the parties; and therefore, it
would seem to be exceedingly rash to pronounce any judgment
founded on the truth or falsehood of such fact, before the issue was
tried and determined, (m) To say, that a party might feign a sug-
gestion to warrant a call for a discovery is tantamount to saying, he
might commit a fraud. Either party, any one may commit a fraud;
but the law presumes every one to be innocent until the contrary
appears; and the court is bound to act upon that presumption.
(t) Jacobs v. Goodman, 2 Cox, 282.—(j ) Jerrard v. Saunders, 2 Ves., jun.,458,
(k) Sweet v. Young, Amb. 353.—(l) Cartwright v. Hateley, 1 Ves., jun., 292—(m)
Wigram on Discovery, 8.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
 |
