Brooks v. Byam et al.

man may have an undoubting belief of a fact, or he may disbelieve its existence, or he may believe it highly probable, or merely probable, or the contrary, or he may have no belief whatsoever, as to it. In each of these cases, he is bound to answer conscientiously, as to the state of his mind, in the matter of his belief; and if he does, that is all, which a Court of Equity will require of him. If a man truly states, that he cannot form any belief at all respecting the truth of the fact or information, that is sufficient, and it puts the plaintiff upon proof of it. If, on the other hand, the defendant should state, (as in the present case the defendant does in effect state,) that he" has no knowledge, information, or belief, that the fact or information inquired about, is not true," or if he states (as in the present case), that he has been informed by a party, and verily believes, that such party did not possess any knowledge, information, or belief of the fact, which the interrogatory points out; in each of these cases, it seems to me, that the answer, if expressive of the true state of mind of the defendant, might at least, for some purposes, be held sufficient. But, then, if such language were unaccompanied by any other qualifications, or explanations, I should understand, that the defendant did mean to assert his belief of the truth of the information or statement of fact, because, if he had no knowledge, information, or belief, that it is not true, he must be presumed to give credit to it; and if he did not intend so to be understood, it would be his duty to say in express terms, that he had no belief about the matter; and he ought not to be allowed to shelter himself behind equivocal, or evasive, or doubtful terms, and thereby to mislead the plaintiff to his injury. And this leads me to remark, and it is the real and only point of difficulty, which I have felt upon the exception, whether, although the plaintiff may agree to take and accept such an admission, interpreting it as affirmative of the defendant's be

Brooks v. Byam et al.

lief, if in that sense it would be beneficial to himself, he is positively bound to receive it, when it is clearly susceptible of a different, or even of an opposite interpretation, which may affect the nature and extent of his proofs at the hearing of the cause. Upon full reflection, I think, that he is not positively bound to receive it, although certainly I should interpret it as an affirmative, if it would be favorable for the plaintiff; but he has a right to require, that the defendant should state in direct terms, or, at least, in unequivocal terms, either that he does believe, or that he does not believe the matter inquired of, or that he cannot form any belief, or has not any belief concerning the matter, and according as the answer shall be the one way or the other, that he calls upon the plaintiff for proof thereof, or he admits it, or he waives any controversy about it.

Upon this ground my opinion is, that the exception is well founded, at least, as to some of the allegations in the answer. It may, perhaps, be sufficient for the Court merely in this general manner to intimate its present opinion upon the case; and it will be easy for the counsel to make its application to the various parts of the answer complained of. But to make myself more clearly understood, I wish to give an illustration of the principle, drawn from the present bill and answer, especially as the nature of the objection may thereby be seen in a more strong and exact light.

The object of the bill is to obtain, among other things, a perpetual injunction to a suit now pending, on the Law side of this Court, brought by the defendants in the bill (Byam and others) against the plaintiff (Brooks), for a violation of a patent, which they claim title to, as assignees of the patentee; and, among other charges, the bill for this purpose alleges, that the original patentee (Alonzo D. Phillips) had before his assignment to these parties assigned a limited right therein to one John Brown, under whom the

Brooks v. Byam et al.

defendant claims a still more limited title, as a sub-purchaser pro tanto, and insists that his acts done in supposed violation of the patent, are rightfully done under this sub-title. The patent is alleged to bear date on the 24th of October, 1837; the assignment to Brown, on the 2d of January, 1837; the assignment to Brooks, on the 18th of September, 1837; but it was not recorded until the 15th of July, 1839; and the assignment to Byam, on the 28th day of July, 1838, under whom the other defendants (Whitney and others) derive title, which was only recorded within the time prescribed by law, whereas the assignment to Brown was not. Under these circumstances the bill charges, that Byam at the time of the assignment to him and the other defendants (and, among them, Whitney) at the time of the assignment to them by Byam, had knowledge and information, and good cause of belief of the prior assignment to Brown. And in the interrogatory part of the bill the defendants are required "full, true, direct, particular, and perfect answer and discovery to make, and that not only according to the best of their knowledge, but to the best of their respective information, hearsay, and belief, to all and singular the matters and allegations and charges aforesaid."

Now, the answer of the defendant, Whitney, (which is excepted to,) states, that he (the defendant) does not of his own knowledge know, whether, at the time of the assignment to Byam, he (Byam) had any information, or knowledge, or had any cause to believe, that Phillips had previously made any conveyance to Brown, or Brown to the plaintiff (Brooks) as alleged in the bill; but this defendant has been informed by said Byam, that at the time, when the said Phillips conveyed and assigned to him all his right and interest in and to the patent right, the said Byam had no knowledge, information, or cause to believe, that the said Phillips had made any conveyance to the said Brown, or that the said Brown had made 39

VOL. IX.

Brooks v. Byam et al.

any conveyance to the complainant; and this defendant has no knowledge, information, or belief, that the information so derived from the said Byam is not true." Now, it is to the matter and form of this last clause (and a like allegation is to be found in other parts of the answer), that the objection is taken by the exception. The argument is, that the clause is ambiguous; that it does not assert, in direct terms, that the defendant believed or disbelieved the statement of Byam; or that the defendant had no belief, or was unable to form any belief about the matter, and, therefore, required the plaintiff to prove the knowledge, information, or belief of Byam at the time of the assignment to him. So that, in fact, the defendant, by the form of his allegation, does not positively put the asserted fact in controversy, as to the knowledge, information, or belief of Byam, by affirming his own belief of Byam's statement; neither does he dispense with the proof thereof, by denying his own belief thereof; neither does he assert, that he is unable to form any belief upon the subject, and therefore calls for proof of the allegation of the bill on this point; but he leaves the matter in a state of ambiguity and open to different interpretations, as to the true intent and meaning of the answer.

It appears to me, that in this view the exception is well founded. When the defendant says, that he "has no knowledge, information, or belief, that the information so derived from the said Byam is not true," he merely pronounces a negative, which may, indeed, in some sort amount to a negative pregnant, arguendo, that, as he has no information or belief, that it is not true, therefore he believes it to be true, which would certainly be a natural, although not an irresistible presumption. But it seems to me, that the plaintiff has a right to more than this; to know, whether the defendant himself has placed confidence in the statement or not, or whether his

United States v. Netcher.

mind hangs in dubio, and he is unable to form any belief either way. In the latter case, certainly, less evidence would be necessary to infer presumptively the knowledge, information, or belief of Byam himself, than if the defendant himself believed Byam's statement, and acted upon that belief; for a Court is not bound, in favor of a defendant, to have a more confident belief in a party, than the defendant himself professes to have. But what I rely on is, that the defendant, by such a form of answer, leaves it entirely equivocal, whether he believes, or is unable to form any belief; and the plaintiff has a right to know positively, which of the two is his real predica

ment.

The exception, therefore, on this point, ought to be allowed.

UNITED STATES v. GEORGE E. NETCHER.

The Crimes Act of 1825, ch. 276, § 10, enumerates three distinct offences; viz. (1.) maliciously and without justifiable cause, forcing an officer or mariner on shore, in a foreign port; or (2.) maliciously or without justifiable cause, leaving any officer or mariner behind in a foreign port; or (3) maliciously and without justifiable cause, refusing to bring home again all the officers and mariners of the ship in a condition to return, and willing to return. It is not necessary, to complete the first or second of the enumerated offences, that the officer or mariner should be in a condition to return, and willing to return. These latter words apply only to the third and last of the enumerated offences.

Where a mariner applied for a discharge, which was refused by the master, and he thereupon used abusive language to the master, for which he was imprisoned by the master, so that he was unable to return, and the ship sailed without him; it was held, that the leaving him behind was an offence within the intent of the Crimes Act of 1825, ch. 276, § 10.

INDICTMENT against the defendant, master of the ship Cornelia, of New Bedford, for maliciously and without justifiable