Davidson v. Wilson

Citations

• 3 Del. Ch. 307

Syllabus

<p>Upon a bill filed by one member of a former copartnership against the other member of the firm, praying an injunction against the collection of a judgment recovered against the complainant for a partnership debt, neither the legal nor equitable plaintiff being made parties, but the collection being pressed by the former copartner of the defendant in the judgment, Held, that no injunction could be granted to restrain the collection of the judgment, unless the plaintiff and the party for whose use the judgment was held, were made parties to the proceedings.</p> <p>An injunction, if issued in such a case, would be ineffectual and nugatory as a means of staying proceedings upon a judgment, and a court of chancery ought not to interfere at all, except in a mode which would be effectual for the purpose of the decree.</p> <p>If the proof, in such a cause, presented a case for the interference of the Court, its duty would be to order the cause to stand over with leave to add the proper parties.</p> <p>A denial by the answer,which is directly responsive to the bill, makes it incumbent upon the complainant to prove his allegation by the testimony of two witnesses, or of one witness with corroborating circumstances.</p> <p>It is a rule of law as well as of charity that when the facts proved may be harmonized with the answer, the Court shall rather do that than impute perjury to the defendant. The Court ought not to be left to rest a decree, which is to restrain the legal rights of a party, upon evidence merely circumstantial, so long as there are sources of direct information to which the complainant might have resorted, and has omitted to do so.</p> <p>Where the partnership books were lost and there was on the record all the evidence which, apart from the books, was available, an order for a partnership account refused because it would have been impossible upon, the bill, answers and testimony, to state any account.</p> <p>The Court will never undertake to adjust the right