Calhoun v. Cozens , 3 Ala. 498 ( 1842 )

COLLIER, C. J.

It is insisted that the bill is defective in not reciting the provisions of the statute of Mississippi, referred to in the deed from McAden to the complainant. The bill would certainly, have been more technically accurate in the statement of the case, if it had been thus framed, but the want of technicality in this respect, is not a fatal objection; for the omission to recite the act, is cured by the allegation, that the slaves in question were bona fide the property of the complai-nantj-at .the time, the defendants attachment was levied upon them-^-were given to her by “ Henry McAden, to be held by . her; .to boused, enjoyed and possessed for, and .during her natural life, fo'r her own proper use; benefit and behoofs separately and exclusively, and at her death, to be equally'divided between . the heirs of her body begotten.” This- statement sufficiently • indicates that the estate of the complainant in the slaves; was separate from, and exclusive of the control of her husband, and all other persons during her life, and may be regarded as explanatory of the effect of the statute of Mississippi upon the deed of gift, under which she claims. - ,

The equity of the bill consists in this; the separate property •of the wife.has been levied on, by legal process, and is about to be sold to pay the debts of the husband, and the-only- means by-which such a result may be prevented, is an. injunction tore-strain the sale. The mere statement of -the gravamen of the complaint, shows, that the case is-one which chancery- should entertain. ' ■

In respect to-the verification -of the bill, the eighth section of •the act of 1823, “ to regulate proceedings in chancery-suits,” (Aik. Dig. 288,) enacts that “ all answers and bills for injunction; and writs of no exeat, shall be sworn to, before any clerk of a Circuit Court, Judge, or Justice of the Peace.” It is not objected, that1 the bill is sworn to by the next friend of the complainant, but it is insisted that the affidavit does not affirm the: truth of a single fact put in issue; while the allegations of the' bill are made by the complainant, the affidavit merely declares that, they .are- true, so far as they depend on the .knowledge of the next friend, and a belief of-their truth, so* far ás they- are derived -from the knowledge of others. Such, indeed, is the frame of the bill, and the manner of its verification. It must be admitted-that the affidavit is an Unusual one; it may be literally ir u e, w it h outsus tai ni n g, to any. extent, the -truth of the bill; for it does not. declare that the next friend possessed a knowledge of the facts, or- was informed of them by. others who possessed such.knowledge. But although the affidavit is thus defective, we cannot think that the -injunction should, for- that cause, have been unconditionally dissolved. 'The correct practice, it seems to us;, in a case like the present,-where the answer denies the statements of the bill, upon information and belief, is to call upon the complainant, or some one acquainted with the facts, to verify them, and in default of a proper affidavit, after some reasonable time to be prescribed, then direct that the injunction be dissolved. True, the law does not'prescribe the form of the jural to a bill for an injunction, but the statute evidently contemplates such as is affirmative of the truth of its allegations, either upon knowledge, information or belief.

The injunction having been irregularly dissolved for the insufficiency of the affidavit, we must refer to the answer of the defendant, Cozens, to ascertain if it is such a denial of the equity t>f the bill, as authorised the order of dissolution, Upon a motion to dissolve an,injunction, the Chancellor confines himself exclusively to the combination of facts set forth in the- bill, out of which .the equity of the case arises, and to the answer of the defendant to those facts. C. and Ohio Canal Company v. B. and Ohio Rail Road Company, 4 G. & Johns. Rep. 7.In Ward v. Bokkelen, 1 Paige’s Rep, 100, it was held that an injunction will not be dissolved upon the answer of the” defendant, unless it positively-deny all the equity of the bill? and that a denial from information, and belief, is not sufficient. Rodgers v. Rodgers, 1 Paige’s Rep. 426; Apthorpe v. Comstock, Hopkin’s Rep. 148; Roberts v. Anderson, 2 Johns. Ch. Rep. 204.; Williams v. Hall, 1 Bland’s Rep. 194. But in McFarland v. McDowell, 1 Caro. L. Repo. 110,it was considered, that an answer will he sufficient to dissolve an injunction,.if it set forth circumstances disproving the allegations of the bill, although it do not positively deny them. - ’ • * .

The answer of Cozens does not undertake to-negative, with positiveness, the truth of the facts on which the injunction was awarded, but .merely: states circumstances upon information and belief, and declares that he is informed and believes the material allegations of the bill are untrue. Now, although the answer is special in its terms, yet, according -to the authorities cited, it does not warrant the dissolution of the injunction. <

Braljq as he had no interest in the controversy; and is not charged with a breach of official duty, and appears to have, acted strictly in conformity to law, was an unnecessary party.— The dismissal of the bill as to him. was, therefore; proper, and the decree is thus far affirmed; but in other respects,- it is reversed, and the cause remanded.