|
|
|
|
|
|
|
|
|
|
|
|
24. WALSH v. SMYTH.
the lapse of time, nine years since the abatement, should be taken
into consideration. (k)
But here the abatement took place more than thirty-two years
ago, and there is strong reason to believe, that James Walker, the
administrator of Casenave, must have known of the institution of
this suit; because it is stated in the award exhibited by the peti-
tioner, that the bonds, the consideration of which was the subject
put in issue by this bill,'were given by the said Robert Walsh as
agent of the said Casenave & Walker, of whom the James
Walker Was surviving partner.' Considering Walker then as ad-
ministrator, as surviving partner, and as joint cestui que use with
Casenave, the presumption seems to be conclusive, that he must
have been fully aware of the situation of this suit, and of the ex-
tent to which his and Casenave's interests were likely to be affect-
ed by the continuance, or dissolution of the injunction. James
Walker, therefore, could not have had any plausible pretext for
asking, at this time, for any further indulgence, or to be allowed
to come in and sustain the equity upon which the injunction had
been granted. But Walker has been dead more than twenty years;
and, during all that time, and when this decree was passed, there
was, in fact, no one to whom notice could have been given by
these defendants to revive, or have the injunction dissolved. A
notice entered on the docket would have been nugatory and a mere
waste of time. So that if it could not have been dissolved with-
out notice of any kind, after such a lapse of time, it must have
been allowed to stand, in effect, as a perpetual injunction. I am
therefore of opinion, that under such circumstances the great lapse
of time must of itself be deemed a sufficient ground to entitle any
of the surviving parties, or the representative of a defendant, to
claim and move for an immediate and total dissolution of the
injunction. (l)
It has been urged, however, that as Casenave was originally a
party with Walsh in this bill by which they jointly asked to have
Smyth and Lynch, the vendors, decreed to refund the purchase
money which had been paid to them, on the ground, that the
consideration of the whole contract was fraudulent and had failed,
his representative was therefore a necessary party, without whom
there could be no valid decree or regular dissolution of the injunc-
tion.
(k) Griffith v. Bronaugh, 1 Bland, 547.—(I) Willis v. Yates, 8 Cond.Cha. Rep. 512.
|
|
|
|
|
|
|
|
|
|
|
|
 |
