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SCHERMERHORN v. L'ESPENASSE, 2 U.S. 360 (1796)

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U.S. Supreme Court

SCHERMERHORN v. L'ESPENASSE, 2 U.S. 360 (1796)

2 U.S. 360 (Dall.)

Schermehorn
v.
L'Espenasse, et al.

Circuit Court, Pennsylvania District

October Term, 1796

Bill in Equity. This bill stated that on the 31st of December, 1790, the defendants, merchants of Amsterdam, had executed to the complainant ( who resided at the same place) a Power of Attorney to receive to his own use, the interest due on 180,000 dollars of certificates of the United States bearing interest at 6 per cent, from the 1st Jan. 1788, to the 31st Dec. 1790, amounting to 32,400 dollars; but that, notwithstanding this assignment, the defendants on the 16th June 1792, received certificates for the 32,400 dollars of interest, and agreeably to the act of Congress, funded the amount at 3 per cent in their

Page 2 U.S. 360, 361

own names. The Bill then prayed relief, according to the equity of the case, and that an injunction might issue to prevent the defendants from transferring the stock, or receiving the principal or interest; and also to prevent the Register and Transfer Clerk of the Treasury, and the Cashier of the Bank of the United States, from allowing a transfer, or paying the principal or interest of the stock, pending the suit. On filing the Bill, Du Ponceau exhibited to the Court the Power of Attorney duly authenticated, from the defendants to the complainants; and his own affidavit stating, that he had inspected the books of the Treasury, where he saw that the identical stock in question was registered in the names of the defendants. Under these circumstances the injunction issued; but no subpoena was ever taken out, nor any further proceedings had in the suit 'till the present term, when Lewis moved for a rule to shew cause, why the injunction should not be dissolved. Before the motion was argued, Du Ponceau filed another affidavit stating, that the delay in issuing process was by mistake and accident; and not from motives of malice and oppression; that he had heard Lewis was to make the present motion near a year ago; and that in expectation it would be made, he had suspended the proceedings on the part of the complainant, intending as soon as Lewis should appear in the cause to serve him with the process, as Clerk in Court. Lewis admitted that he had been applied to about a year ago, not on behalf of the defendants, but of Messrs. Pollocks, who claimed the stock (as he alledged) by virtue of a deposit from the complainant himself; but, he insisted, that he had postponed making his application to the Court one term, at the instance of Du Ponceau. These facts being understood,

Lewis endeavoured to support his motion on two grounds: 1st. That the injunction had issued irregularly, as there was no affidavit made of the truth of the allegations contained in the Bill; and 2nd. That the complainant had unreasonably delayed bringing the cause to a hearing and decision. On the first ground, he observed, that he did not object, because the injunction had issued before a subpoena was served, as there were various cases in which justice could not otherwise be attained; but in no case can an injunction be issued, or awarded, without a previous affidavit of the truth of the facts stated in the Bill. 2 Harr. Pr. Ch. 221. 222. 223. 232. 245. 259. Brown Rep. Ch. 452. 3 Br. Rep. Ch. 12. 24. 463. The affidavit filed in this case, is not in support of the Bill, but in proof of an extrinsic, immaterial, fact; and the Power of Attorney was not of itself sufficient. Such powers, given in a foreign country, do not always, on their face, explain the meaning of the parties; nor can they be deemed competent evidence of the right of property. It is true that. Harr. P. Ch. 221, and Hinde 583, mention, that an injunction [2 U.S. 360, 362]

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