Bush v. Linthicum

Irving, J., delivered the opinion of the Court. The appellee having filed a bill for the dissolution of the partnership between himself and one Richard H. Weir, the case proceeded to answer and replication; and then an order to take testimony upon the motion to dissolve the injunction, and discharge the receiver, who had been appointed at the granting of the injunction. At this stage of the case, the defendant, who had answered under oath, and appeared by a solicitor, interposed, through the appellant his next friend, a plea of infancy, and prayed that the bill might be dismissed. Upon this plea being filed, a motion of ne recipiatur was made and filed by the complainant, to which the appellant demurred; and the demurrer having been overruled, appeal was taken.

The sole question, therefore, is, was the Court right in overruling the demurrer and rejecting the plea of infancy, to the extent expressed in the order of the tenth of June, 1882, appealed from ? The facts of the case are so fully set out in the opinion of the Circuit Court, which we adopt, that it is useless to re-state them. The reasoning of the Court, in support of the order passed, is so cogent that we can add nothing to its force, and shall rest our affirmance mainly upon the ground taken in that opinion. By the demurrer to the motion and reasons assigned, the defendant admitted the facts stated in the third reason, that the complainant had ³⁵⁵ no knowledge of the defendant’s minority, and had been deceived by his representations that he was of full age.

Had the complainant discovered that the defendant had so deceived him, before filing his bill, he could and would have made that allegation as an additional ground for the Court’s interference, and it would have justified the relief prayed for. The fact that he did not, upon the interposition of the plea, ask leave to amend that he might so charge, cannot operate to his prejudice. Where an injunction has been granted and a motion to dissolve has been made, it is not usual to ask for, or for the Court to grant leave to amend; and the reasons are so obvious we need not give them. The plea interposed new matter, infancy, by way of defence, but the plea does not aver that the complainant had knowledge of it, and entered into the partnership notwithstanding complainant’s motion sets up the want of knowledge and the defendant’s deception as reasons against receiving the plea; and the demurrer, as we have already said, concedes the facts so set up.

Upon the demurrer the matter was considered, as if the complainant instead of filing his motion, that the plea be not received, had replied alleging the facts stated in the third reason assigned for the motion, and the defendant had then demurred. Whether complainant had knowledge of defendant’s infancy and was decéived about it, is not an open question,