An action had been brought at law, upon a note given by the plaintiff and Lewis Harmon, to John Shawn, the first husband of the wife of the defendant, for 180l. The bill stated, that, through mistake, 525 bushels of corn, at 2s. per bushel, which had been accounted for, was included in this note, and prayed to be relieved as to this mistake.
The answer of the defendant stated that the transaction took place with the deceased, and that he has no certain knowledge of it; but from circumstances, some of which as from information; he believes the statement made in the bill is not true. By the English practice, in ordinary cases, an injunction is not obtained until an answer comes in. Not so with us, — the injunction here issues with the subpœna generally, though it may be moved for as in England. There, if an answer admits or evades the equitable charges of a bill, the Court will grant an injunction. Our courts seem to act upon the same principle in dissolving, that the courts of England do in allowing, an injunction.
The situation of the defendant was such, that it is not reasonable to suppose he knew any thing respecting the transactions of the deceased, which are the subject-matter of complaint. He cannot admit or deny that which he knows nothing about; there is no appearance of evasion. If this was an application for an injunction it could not be granted; it would be equally improper to continue it. The defendant is a non-resident, therefore let the injunction be dissolved upon security being given to refund.