Purviance v. Barton

Martin, J., delivered the opinion of the Court. We have carefully examined this case, and think it is not attended with much difficulty, when freed from objections which do not legitimately belong to it, but which have been urged with great ability and ingenuity. It would seem from the argument, the true construction of the act of 1820, ch. 161, sec. 1, is only to be collected from the interlocutory order it directs. This order is a mere subordinate feature in the law, and its aid is not required to explain that which is clear and manifest without it: give to it what name or character you please, it cannot authorise the Chancellor to take the bill pro corifesso, and entirely disregard the testimony, which the order itself states to be necessary to a correct decision, and which the act of 1820 requires, to support the allegations in the bill. Independent of the provisions of that act, the proceedings in this case appear inconsistent on the face of them. If the bill was to be taken pro confesso, and as such would justify a final decree, was it not a mockery to issue a commission to take testimony, when the testimony under it was to have no effect, but to be treated as a mere nullity ? It has been conceded by the counsel for the appellee, that unless this proceeding is authorised by the act of 1820, ch. 161, the decree cannot be sustained. Before the passage of this act, a commission could not be issued to take testimony until the defendants answered, and the cause was at issue — to prevent the delay consequent upon this course of proceeding, gave birth to the first section of the act of 1820. By that section it is declared, where a subpoena has been issued, on a bill in Chancery, and returned summoned, as to all, or any of the defendants, and the said defendants, or any of them so summoned, shall fail to appear, or having appeared, shall fail to answer, the Chancellor, upon the application of the com [317] plainant, shall enter an interlocutory decree in such case, and issue a commission, ex parte, to take testimony to support the allegations in the bill; which commission shall be issued, proceeded in, and returned, in the same manner, and the testimony returned shall have the same effect, as if issued and returned in the usual way, on answer, general replication and issue, and the Court shall proceed to a final decree in the cause, in the same manner as if the defendant or defendants had appeared and put in their answer. It is difficult to suggest any language which could express in a more clear and explicit manner, the object of the Legislature in passing the law, and the course directed by it to be pursued in the Court of Chancery. Upon the nonappearance of the defendant, or his failure to put in an answer, an ex parte commission shall be issued to take testimony — for what purpose ? The act tells us explicitly, to support the allegations in the bill. Why take testimony to support the allegations in the bill, if the bill is to be taken pro confesso, and is sufficient to justify a final decree, without any proof of those allegations ? But the act does not stop here — it leaves nothing for construction, but points out, in the most unequivocal terms, the effect that is to be given to the testimony thus returned, and the decree that the Chancellor is to pronounce in the cause. It declares the commission shall be issued, and the testimony taken under it shall have the same effect as if issued and returned in the usual way, on an answer, general replication and issue, and the Court shall proceed to a final decree in the cause, in the same manner as if the defendant had appeared and put in his answer — thus clearly intending to place a cause upon the return of an ex parle commission, in the same situation as if a commission had been issued after answer, &c. filed, and that the Court of Chancery should proceed to a final decree in both cases, in the same manner. If the first section of this act was ambiguous and doubtful, we might call in the second section to aid in its construction — but this we deem unnecessary. The decree in this [318] case, taking the bill_pro confesso, was not authorised by the act of 1820, and it is therefore reversed, and the bill dismissed, but without prejudice. decree reversed.