1. On a motion to dissolve an injunction, everything is to be presumed against the defendant, in respect to any matter to which he could answer directly and has not so answered.
2. A court of equity will not support an injunction against an undoubted creditor, who has established his debt at law, merely upon the ground that there were other transactions between the parties, on which, possibly, there may be a sum of money coming to the party obtaining the injunction.
3. A strong inference will be drawn against a plaintiff in an injunction bill, from vagueness in its statements, and from suppression on matters peculiarly within the plaintiff's knowledge.
(156) RUFFIN, C. J.
As the answer is silent upon the charge of the insolvency of Hoover's estate, we assume it as established, for the purpose of the motion to dissolve the injunction, for, in this stage of the cause, everything is to be presumed against the defendant in respect of any matter to which he could answer directly and has not so answered.
Though some of the suits at law, brought by the present plaintiff, were for demands, which he states in the bill were items in the partnership accounts, yet there was no suit directly on the partnership dealings; and as only the suits pending between the parties were referred, the award does not, therefore, conclude the parties on the point of a settlement of the partnership. The plaintiff would therefore be entitled to come into this Court to have the benefit of the equitable set off of the sum due him on the partnership, if any; and especially, in the case, which we here take for granted, of the insolvency of the plaintiff at law. But we are not satisfied that the plaintiff is entitled to any such set off. It is not sufficient that he should shew that there have been transactions between him and the other party, on which, possibly, a sum of money may be coming to him. Upon a bare possibility of that sort the Court ought not to tie up an undoubted creditor, who has established his debt at law, from reaping the benefit of his recovery. The present plaintiff says that there was a certain partnership between himself and the defendant's intestate, which was dissolved in 1838, but has never been settled, up to 1843; and upon which, if settled, a large balance will be due him, the plaintiff. This result the defendant, who is an administrator, can not deny positively, because he says he has no knowledge of his own upon the subject. But he denies it as far as an honest man can deny it; which is upon his information and belief. And he states the sources and particulars of his information, so that it may appear whether his belief, deduced therefrom, be fair and reasonably entertained. The answer does not aver that the partners actually came to an account, and that a balance was found due to Hoover; but it states that, in the course of a judicial investigation, credible witnesses proved, that the plaintiff himself said that they had dissolved upon terms, (157) which, of themselves, imported that Hoover owed nothing on that transaction. The fair meaning of the statement is, that Hoover simply retired from the firm, giving up anything he may have advanced, and leaving Parks to pay for all the property and to have it. And the answer further states that, if such settlement had not really been made and an account were taken, the defendant from information believes the balance would be found due to Hoover, and not to the plaintiff. We do not see that more could have been expected in an administrator's answer; and it strikes us as making a candid statement upon the material points, and, as fully as it could, denying any sum to be due to the plaintiff, and as entitled to more credit in that respect, than if the denial had been less scrupulous and more peremptory. But the answer does not constitute the entire case against the plaintiff. Much more is to be inferred from the vagueness of the statements of the bill, and from its suppressions on matters peculiarly within the plaintiff's knowledge. It merely states a partnership to transport the mail; but as to the terms, the capital and how much each was to advance, or what personal services to render, or how share the profits, there is not a word in the bill. Then it states that the next year after the business began, the plaintiff took all the partnership effects to himself; but at what price, when or how payable, or upon what other terms is wholly suppressed. How are the accounts of such a partnership to be taken? There is nothing to begin with: though the plaintiff, as the surviving partner, is the person best, and, perhaps, alone capable of furnishing the requisite data for the action of the Court. Besides all that, the bill does not even undertake to account, why, when there was so much litigation between the plaintiff and Hoover, in his lifetime, the plaintiff did not then file his bill for a settlement of the partnership, if it had not been settled, or why he did not propose to the defendant to include it in the reference, if he thought he could make it appear that anything was coming to him thereon to recover the (158) recovery that would be made against him on other demands. We find, indeed, that the plaintiff had brought some of those actions at law for demands, which the bill now states to have been partnership transactions. Upon the whole case we must say that it wears the aspect of a suit, not to get an account, but to get an injunction for the time being; and, therefore, that there is no error in the decree. This will be accordingly certified to the Court below.
The plaintiff must pay the costs in this Court.
PER CURIAM. ORDERED ACCORDINGLY.
The HONORABLE WILLIAM GASTON, one of the Judges of this Court, died on 23 January, 1844, during the term of the Court, in the 66th year of his age.