Edwards v. Massey, 8 N.C. 359, 1 Hawks 359 (1821)

June 1821 · Supreme Court of North Carolina

8 N.C. 359, 1 Hawks 359

IN EQUITY.

Edwards v. Massey.

From Wayne.

The affidavit on which an order of sequestration is awarded, should state positively the existence of the facts on which the application is grounded, or if only matter of belief, the grounds of that belief. Though a bill, deficient in matter, cannot be aided by the Defendant’s answer, or by proofs in the cause; yet where sufficient matter is stated, but insufficiently verified, the want of sufficient verification may be supplied by proofs or admissions.

The rule that Courts of Equity interfere by ne exeat only in case of equitable demands, applies where money, not property, is the subject ■of controversy.

The bill in this case set forth, that Complainant was the owner of a negro slave who liad been in the possession of himself and those under whom he claimed, fourteen years, when, by seduction or some other clandestine means, she was taken into the possession of the Defendant; that an action of detinue was commenced against the Defendant by this Complainant, for said slave, which suit is still pending, and that the Defendant was in prison at tiie time of filing the bill, he having been surrendered by his bail. The bill then proceeded to state; that Complainant had been informed, and verily believed, that it was the intention of the Defendant to take the oath of an insolvent debtor, and when discharged from confinement, to remove the slave beyond the limits of the State, and thereby prevent Complainant from a recovery of his right — and therefore prayed that Defendant might be compelled to give bond and security for the forthcoming of the slave to abide the decision of the suit at law ; and on failure to give such bond, that the Sheriff might be commanded to take the property into his possession : the bill concluded with a prayer for writs of injunction and subpoena.

Writs were granted accordingly, and Defendant hav-inS failed to give bond, the property went into the possession of the Sheriff.

qpjie answcr admitted that the slave was in the possession of the Defendant, and also the existence of the suit at Law, and stated that Defendant claimed title to the slave as administrator to his father, and believed his right to be good, both in Law and Equity; — that Defendant was imprisoned for want of bail in the suit at Law, but having afterwards given bail, was discharged. The answer positively denied any intention of removing the slave out of the State, or any declarations of such an intention.

Upon the coming in of the answer, Defendant prayed that the injunction might be dissolved, and Complainant moved for leave to reply to the answer, and take testimony to support the allegations in the bill. The Court directed the case to be heard on bill and answer only, and decreed that the injunction be wholly dissolved, and the bill dismissed with costs, whereupon Complainant appealed to tins Court.

Gaston for the appellant.

The maxims of equity and conscience on which a Court of Equity is founded, are capacious enough to meet all the varieties of human transactions — (2 Barg. Jwr. Jlrg. 307.) The very ground of the interference of a Court of Equity is, that otherwise the party is without remedy, although in conscience he should have a remedy. On this principle, a bill has been allowed against the representative of a tenant who had committed waste by digging ore; because such a wrong must have some redress, and there was none at Law — (1 Fonb. 4, 8.) It never interferes further than is necessary ; wherever the right, therefore, can be fairly-tried at Law, by the removal of some impediments, it contents itself with the removal of them — (1 Fonb. 10.) So also it will render judgments effective, by providing for the safety of property in dispute pendente lite — (1 Forib. 11 — Mitford 4 — Coop. Eq. PI. 38 — 6 Vesey 172.) The interference of Equity in this case is peculiarly pro-peí-, for without it the most valuable property of the country is at the mercy of every one; and it is a species of property which, of all others, may most easily be taken from the possession of the rightful owner. It is by no means a novel interference, for an injunction has been often granted to prevent the destruction of personal property until a suit was decided — (1 Madd. 130 — 10 Ves. 139, 163.) So also an injunction against an insolvent executor — (2 Madd. 176.) Against infringing a patent during a suit at Law — (Wyatt’s Reg. 235.) The appointment of receivers in disputed causes proceeds on the same principle — (2 Madd. 187-8 — 13 Ves. 105 — Wyatt’s Reg. 245 — Mordaunt v. Hooper, Jhnbler 311.)

But it wras wrong in the Court below to dismiss with costs, and we may appeal for costs — (Jhnbler 521 — 1 Vern. 250. — 1 Brown 141.) The original power of Chancery was to give costs when the bill was founded on false suggestions, but they were never given on a case that was fit for consideration, but only where there w’ere no just grounds for the proceeding — (2 Madd, 413, 416— 18 Ves. 16 — 3 Mh. 234.)

Mordecai, for the appellee,

assimilated the proceeding which had been had in this case, to the writ of ne exeat, which, he contended, was granted only in cases where the demand is merely equitable, and never where the demand is at Law' — King v. Smith (1 Dickens 82) — Brochen v. Hamilton, (2 Dick. 154) — Ex parte Duncombe, (Ibid. 503, 609.) Thus the writ has been refused in a case where the agent of the Complainant had hired his negroes and refused to account, and declared his intention to go to Antigua, and Complainant had no remedy at Law, bis witnesses being abroad — (Jhnbler 76.) The reason why a ne exeat is granted, is, that the Court cannot take bail in the case — (Exparte Whitmore, Dickens 143) — and where it can take bail, it follows that the writ will be refused — cessante ratione, cessat et ipsa lex.

A verdict was obtained in an action on a marriage con¿rac^ and Defendant threatened to leave the Kingdom before a final judgment 5 under these circumstances Lord Hardvvicke refused the writ, saying, “ it is merely for a ne exeat, on which no decree can be made, and were I to grant the motion, it might be discharged on Defendant’s patting in bail, which Plaintiff' might have had when he brought his action” — (2 Mk. 210) — vide also Ex parte Brunker, (3 P. Wins. 312.) A Plaintiff shall not have double bail, both in Law and Equity— Pakeman v. Cosby, (3 P. Wms, 314, note M.)

The writ has indeed been sometimes granted in a case where equity had concurrent jurisdiction, but it was admitted that the demand must be equitable — Mldnson v. Leonard, (3 Brown, 217.) A ne exeat issues with a view to obtain security from a person about to leave the country, when the other party7 has not a legal remedy, and cannot hold him to bail. It issues only upon a certain, equitable money demand, at the instance of a Plaintiff who shews title to sue — (2 Madd. 182-3.) A writ of ne exeat cannot bo obtained against an attorney upon a legal demand, on the ground that he is privileged, and cannot be arrested — (2 Madd. 186 — 15 Ves. 444,) be* cause, if the Court could interfere, it would require bail where none is required by law ; so here the Court cannot interfere to bind the Defendant more effectually than the law binds him. In the case before the Court, the Complainant was not without a remedy at law; he might, in the first instance, have brought replevin, or he might have dismissed his writ of detinue, and then brought replevin ; so that even if the Court of Equity is to become ancillary to the Courts of Law, wherever the process'of the law may fall short of the exigency of the* case, there was, in .this instance, no necessity for such extraordinary interference.

But even if this were a case of a demand purely equitable, in which the Court might, according to ancient authorities, interfere, or a case in which the Courts of Law and Equity have concurrent jurisdiction, then the statement made hy the bill is insufficient to authorize the interposition of the Court; for it should be charged positively that the Defendant is going abroad, or some der-claration of his to that effect — (fiMadd. 183 — 7 Ves. 417 —8 Ves. 410.) The statement here, is, “that he is informed and does believe that it is the intention of said Massey to take the oath of an insolvent debtor, and as soon as he is discharged from confinement, he intends to remove the slave beyond the limits of the State.” In a case reported in 3 Johns. Ch. Rep. 75, the statement was, “ the petitioner is informed and believes, that the Plaintiff is selling off his property, and is about to remove out of the State,” and, says the Chancellor, the evidence is not sufficient of Plaintiff’s intention to go abroad. It is belief merely from information, &c. There ought to be a positive affidavit of a threat or purpose to go abroad.

HendeiisoN, Judge.

The affidavit on which the order of sequestration was awarded, is defective, in not stating positively the existence of the facts on which the application was grounded, or if only matter of belief, the grounds of the belief, that the Court might judge’whc-ther it was a rational and well-founded belief, or an idle and vain one j and did this case stand on the bill alone, I think the sequestration should he taken off. But I am of opinion, that sufficient appears from Defendant’s answer to support it.

By this, I would not be understood to mean, that a bill, deficient in matter, can be aided by the Defendant’s answer, or by proofs in the cause; but where sufficient matter is stated, but insufficiently verified, the want of sufficient verification may be supplied hy proofs or admissions.

In this case, taking’ bilí and answer together, it is admitted, that the Plaintiffs, and those under whom they claim, have been in possession of the slave for fourteen years? claiming title ;. that by seduction, or some other clandestine means, the Defendant lately obtained possession of them j that he was lately in prison, for want of bail, in the action at law brought for the slave, and that he has since given bail. The Defendant also says that he is in possession of the slave, claiming title as administrator of his father ,• but the nature of the title he does not state, nor account for his long want of possession. In the action of waste, the law gave the writ of estrepemenl, to prevent waste pending the action : an action on the case is now most generally brought for waste, and Chancery interposes to prevent waste, because of the estrepement in the Common Law Courts. In the case of. a taking, the Common Law Courts give the action of replevin, which was, at the commencement of the proceeding, now under consideration, and indeed yet is, almost out of use here, as thé action of waste is in England. — By replevin the Plaintiff was restored to the possession of the goods before trial. — The same principle which induces the Chancery in England to interfere in the case of waste, applies here with all its force in cases of property in slaves, at least where there has been a taking by seduction or clandestine means •, for such a taking I have no doubt will support an action of replevin; for the nature of the property is such that possession may be lost by the most vigilant owner, without there being an actual taking or the commission of a trespass.

As to the objection that Courts of Equity will not interfere but in cases of equitable demands, that is the case where money, not property, is the subject of the controversy. In money demands, the Common Law gives no other security than bail: it would overleap the intention of the framers of the Common Law, for the Courts of Equity to go further — Not so where property is the subject matter; then the Court of Equity will interfere in particular cases. This, I think, is one of those cases where it will, for the reasons before given.

Note. — There were five other cases against the Defendant, Massey, involving facts similar to those disclosed in the foregoing case. As the decision of the first necessarily governed the whole, and all were submitted to the Court on one argument, the Reporter deems a detailed statement of all unnecessary.

By the Court. — Let the sequestration be sustained.