Knoxville daily chronicle. [volume] (Knoxville, Tenn.) 1870-1882, 1872-04-07
The motion is therefore disalIowed and

|
oyerruled.
THE DEFENDANT CONVICTED OF CON
TEMPT AND FINED. ..
End. The second motion is to attach the
body of defendant for a contempt of the
process of this Court, for violating an in
junction granted by this Court, in said
cause, pending between complainant and
defendant, in collecting money from John
j. West and Hugh Martin, and appro-
priating the same to his own use, contrary
to said injunction. He is charged with
collecting about one hundred dollars from
said West about the 9th of March, 1869,
and of collecting about two hundred dol
lars from Hugh Martin since the Issuance
and service of said injunction, both sums
being fees, as alleged, belonging to the
firm lately composed of complainant and
defendant.
The answer of defendant admits the col
lection of these two fees, in the modes
the .ein set forth in detail, but it is denied,
that, by fair construction of the terms of
| the partnership, complainant had any in
terest in these fees. ANY intention to vio-
late the injunction is denied.
1t is admitted by the solicitor of COM
plainant, that, if the answer denies
the charge or fact the defendant must be
| discharged. But it is denied that the an
swer can have that effect, where it admits
the charge, but sets up matter in excuse
or avoidance. In the latter case, it is in
| sisted, the matter in avoidance must be
| proved, and must be sufficient to cOnsti-
tute a profitable defense or excuse. This l
hold to be the correct view of the law eX-
cept as herein Immediately stated.
A distinction exists between the effect
of an answer, in Court of Common Law
and a Court of Equity. In the former, if
the answer of defendant deny the con-
tempt, no opposing testimony will be
heard, and he will be discharged. But in
IN Court of Equity, the answer, though
1t deny the contempt, is not conclusive,
but it may be OverthTown by opposing
proof or affidavits. 4M Johns Rep. 49,,
Underwood as. Case, 2d Hum. IS. 4H
Blackstone Com. 2S6. 2d Comyn's Dig.
To test this case by the principle, that the
truth of the matter in avoidance must be
proved, and especially in Court Of Equi-
ty. 1t will be necessary to refer to dates
and facts. The original bill was filed
junction was granted on the same day.
The prayer for the injunction was, that the
defendant might be restrained and enjoin-
ell from receiving or collecting any mon
eys or demands due said firm, and from
selling, assigning, or in any way disposing
of any notes, bonds, securieties, debts, ac-
counts orproperty belonging to said firm.
and that a writ of injunction issue for that
purpose" The order granting the injunc-
ton directed it to issue as prayed for In the
bill. The injunction issued February
21st, 1865, was served on the 26th of Feb
ruary, by the Sheriff of Knox county, and
is in nearly the words Of the prayer in the
bill.
The letter of West, introduced by de-
PENDANT, shows that he paid defendant
500 90 in March following, as a fee in the
IF lokf g
Hugh Martin, introduced by defendant,
shows that he paid, or accounted with the
defendant, September 10th, 1868, for
$500 90, as q fee in the case of Lee VS.. Mar
tin. The particular circumstances under
which, and the manner of the payment of
this fee are detailed in full in the answer
of defendant, and, the injunction aside,
they reflect much credit on the defen-
dant.
The bill of complainant charged that
the terms of the partnership embraced the
antecedent business of defendant, as we'll
as that which might arise in the future.
The answer of defendant admits that &C
cOrding to the recollection of defendant the |
terms of the partnership are correctly
stated in the bill. This admission in the |
answer makes the partnership cover the |
cases of West VS.. Coffin and of Lee VS.. |
Martin, and they are, therefore, within the |
answer to this motion disproves that fact. |
That answer is, in substance, that it was |
never the intention of defendant to permit |
complainant to participate in the profits |
of the business, which defendant had re- |
ceived before the partnership, unless COM
plainant rendered labor and service in |
them that he did not render such SER
vice, or any considerable amount, in these |
cases, and that by no just construction of |
0rfIRinl n ortr1 IL, h
plainant be held to have had any interest |
in these fees.
The allegation in the bill was, that the |
partnership embraced all fees, whether re- |
ceived by defendant before or after the |
partnership. The answer admitted the al |
legation to be substantially true. The in |
junction was as broad as the allegation in |
the 6lll. Here, then, was the measure
of the duty of defendant Whenever |
he answered that the complainant had put |
wrong construction on the terms of part
nershlp, and therefore that the Injunction |
was too wide in its sweep or operation, and |
he could on that account disregard it, he
set up his judgment in opposition to the
mandates of the law and acted at his peril.
Sometime since, in the case of Craig VS..
Sharp, in this Court, the defendant Sharp
was punished for contempt, in violating
an injunction against committing waste,
III cutting timber on a certain piece of
land, because he undertook to determine
where the line was, and passed over on
forbidden territory.
Now, in the case under consideration,
the injunction was served February 18th,
and sometime in March following the de-
PENDANT collected $4,000 as a fee from
John West; and in September followinga
fee of 10000 was settled, adjusted, and
therefore received from defendant from
Hugh Martin. In reference to the first, /
would, if could, most gladly assume, as 1
am willing to do in reference to the second
case, that he had forgotten the terms of the
injunction. But the service of the injunc-
ton was too near the time of its violation
to permit me, however much may desire
to do SO. to put that charitable construe-
ton on his act.