Atterberry v. Knox

• Decision Date: 17 June 1839
• Parties: Atterberry v. Knox & McKee.
• Court: Kentucky Court of Appeals

38 Ky. 282

Atterberry v. Knox & McKee.

Court of Appeals of Kentucky.

June 17, 1839

FROM THE CIRCUIT COURT FOR JEFFERSON COUNTY.

Messrs Morehead and Brown, and Mr. Guthrie for plaintiff.

Mr Pirtle for defendants.

OPINION

EWING JUDGE.

Former reversal.

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, up on the petition of the defendants, as non-residents, they were permitted to put in their answer; in which they charge, that before and at the time of making the bill and 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 accommodation of the drawer, for the loan of said notes, and in which a rate of interest above six percent. per annum, was exacted and secured contrary to the statute of Virginia; and that said bill was, therefore, null and void.

An answer and cross bill filed after the return of the cause to the court below--presenting new facts and questions.

And, at a subsequent term, the defendants filed an amended answer, in which they amplify the charge made in the former answer, and allege, in more specif terms, that the complainant was the agent of, and associated with, the Bank of Maryland--a banking institution not incorporated in Virginia--in carrying on and doing 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 Virgnia, in such case made and provided. This answer, as well as the original, is 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 associations, 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 Court; 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.

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 question is presented whether he was bound to answer, or if he failed to do so, could the matters of the cross bill be taken for confessed, and a decree rendered on such confession, against the complainant's demand.

A deft. in ch. is not bound to answer any charge in a bill which, if confessed, would subject him to punishment, penalty or forfeiture. When a party submits to answer, he must answer fully; but to this general rule, there are many exceptions--the most obvious of which, is where the answer might subject the respondent to punishment, fine or forfeiture.

The objection, in such a case, may be saved in the answer; but the better practice is to plead or demur.

When a bill is answered, only such facts as are alleged in the bill and charged or presumed to be within the respondent's knowledge, but not answered, can be taken as confessed.--But--

When a bill, not answered at all, is taken for confessed for want of an answer, every specific charge is considered as admitted--whether the facts are within the defendant's own knowledge or not, and even tho' the confession might subject the deft. to a criminal prosecution, or forfeiture; not only because the failure to answer is taken 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.

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 punishment. Mitford's Pleadings, 158, & c.; Smith v. Read, 1 Atk. 526; Harrison v. Southcoat, 1 Atk. 528; Boteler v. Allington, 3 Atk., 453; Chauncy v. Tahourden; 2 Atk. 392; Bird v. Hardwick, 1 Vern. 110; Sharp v. Carter, 3 Pr. Williams, 375; Wrottesley v. Bendish, 3 Pr. Wms. 236; Chauncy v. Fenhoulet, 2 Ves. 265; Lord Uxbridge v. Staveland, 1 Ves. 56.

But how shall a party avail himself of his right to object to a discovery of such matters? It has been held as a rule, that if he submitted to answer, he was bound to answer fully. Cookson v. Ellison, Bro. Chy. Rep. and authorities referred to in note a; Cartwright v. Hately, same, 3 vol. 238; Shepard v. Roberts, 3 vol. 239 ...