Swindall v. Bradley, 56 N.C. 353, 3 Jones Eq. 353 (1857)

Dec. 1857 · Supreme Court of North Carolina

56 N.C. 353, 3 Jones Eq. 353

DAVID SWINDALL, per Guardian, against WILLIAM BRADLEY.

In a bill for an injunction to prevent slaves from being taken out of the State, an allegation that the defendant was about to sell his perishable property, and that it was rumored he was about to remove, and that plain tiff believed if he did so, he would carry off the slaves which he held for life only, was deemed sufficient ground for the issuing' of an injunction, and, not being met by the answer of the defendant, though it denied the intention of removing, the injunction was ordered to be continued.

On a motion to dissolve an injunction, where the mischief, arising from the act complained of, would be irreparable, the settled practice is for the plaintiff to read affidavits in opposition to the answer.

Appeal from the Court of Equity .of Bladen county, MaNly, J., presiding.

By the will of Mary Kelly, which was proven in the year 1852, a negro woman slave Tonah, and her child Lucy, were bequeathed to Mary Swindall for life, and, at her death, toiler son, the plaintiff. The executor to the will of Mary Kelly assented to the legacy, and the slaves went into the possession of Mrs. Swindall. Afterwards, the said Mary Swindall intermarried with the defendant, William Bradley, who took possession of the slaves in question. The woman Tenah had three other children, who were all in the possession of the defendant at the commencement of this suit, and were worth at that time $2,300.

The bill alleges that the defendant, Bradley, is about to sell his perishable property, and, as plaintiff believes, is about to leave the State. The plaintiff asserts his belief that, if the defendant does so leave the State, he will carry off the said slaves, and that his remainder in the same will be rendered difficult to be obtained at the falling in of his mother’s life interest, or totally defeated. lie prays for an injunction and a sequestration.

The writs prayed for were ordered, and the slaves in question were seized by the sheriff of Bladen, and held by him, pursuant to the writ of sequestration.

At the Special Term of the Court held for Bladen county, (May, 1857,) the answer of the defendant came in. lie denies therein that he is about to leave the State, or that ho is about to carry off the slaves in question, but says he had provided homes for them in Bladen county, and made all needful arrangements for their maintenance and comfort.

A motion was made to dissolve the injunction and sequestration. The plaintiff offered affidavits in opposition to the answer, which his Honor refused to hear, and, on consideration of the matter upon the bill and answer, dissolved the writ of injunction and ordered a restoration of the slaves to the defendant. From this order, the plaintiff appealed to this Court.

Troy, for the plaintiff.

Shepherd and White, for the defendant.

Battle, J\

This is the case of a special injunction, and it is admitted that, upon a motion to dissolve, the plaintiff would be at liberty to read affidavits in support of the allegations of his bill, if such allegations were sufficient to entitle him to relief; but the defendant contends that such is not the case, and that the injunction ought to be dissolved, and the sequestration discharged, because of their having been improvidently granted.

It is unquestionably true that a court of equity will not enjoin a tenant for life of slaves, from removing them, or compel him to give security for their forth-coming, unless good cause be shown that they are in danger of being carried beyond the jurisdiction of the Court; Clagon v. Veasey, 7 Ire. Eq. Rep. 113. The mere fears and apprehensions of the remainder-man will not entitle him to an injunction, unless he can allege such facts and circumstances as will show that his fears and apprehensions are well founded; Lehmaa v. Logan, Ibid, 296. The only enquiry, then, is whether the present bill contains a statement of facts sufficient to lay a foundation for the relief sought. It alleges that the defendant “ was about to sell his perishable property,” and that the plaintiff was informed, and believed, that the defendant was about to leave the State, and then avers his belief that, if the defendant did leave the State, he would carry off the slaves with him. The fact that the defendant was about to sell his perishable property, and the rumor that he was about to leave the State, were, we think, calculated to excite the plaintiff’s fears that he would cany off the slaves, and required explanation. The answer denies distinctly and positively that the defendant intended to leave the State, or that he had any design to remove the slaves beyond the jurisdiction of the Court, but it is altogether silent in respect to the charge that he was about to sell his perishable property. This silence is, to say the least of it, suspicious, and makes the answer obnoxious to the imputation of being evasive.

In this state of the'pleadings, we think the plaintiff had the right to read affidavits in support of the allegations of his bill, and to insist upon them in opposition to the motion to dissolve his injunction and sequestration, and that, consequently, his Honor erred in refusing to hear them; Lloyd v. Heath, Busb. Eq. 39; McDaniel v. Stoker, 5 Ire. Eq. Rep. 274; Griffin v. Carter, Ibid, 413. It is true that, in these cases, the bill only was read as an affidavit in opposition to the answer, but, in Lloyd v. Heath, the following passage from Drewry on Injunctions, 429, is quoted with approbation, and fully sustains our decision in this case : “And it may be stated to be at the present day the well-settled practice to permit affidavits to be read in opposition to the answer at certain stages of the proceedings in cases of toaste, and injuries in the nature of waste', for the mischief is irreparable; the timber, if cut, cannot be set up again; in other words, the mischief, if permitted, cannot be retrieved.” The order, from which the appeal was taken, must be reversed, and this opinion certified to the Court below.

Per CuexaM, Decree accordingly.