Hogan v. Branch Bank at Decatur , 10 Ala. 485 ( 1846 )

COLLIER, C. J.

We will not stop to inquire whether a notary public is authorized to administer an oath where it is necessary thus to verify a paper which is to be made part of the proceedings in a cause. It may however be remarked that we have a statute which authorises a notary to administer oaths and affirmations according to law, in all matters belonging or incident to their notarial office ; to receive proof of all instruments of writing relating to commerce, or navigation, and such other writings as are commonly proved or acknowledged before notaties within the United States. [Kirksey v. Bates, 7 Porter’s Rep. 529.] No objection was taken to the bill for the Want of verification, and as it appeared from the attestation of the notary that it had been sworn to, the complainant must be held to have waived any objection on this ground. Our practice requires that such matters should be excepted to in the primary court, and cannot be raised for the first time on appeal.

The answer of the defendant would doubtless have been regular, if it had merely been attested by its corporate seal, but its effect as evidence would, according to some of the decisions, have been less potent. In Haight v. The Proprietors of the Morris Aqueduct, [4 Wash. C. C. Rep. 601,] the question was, whether such an answer, when it denies the equity of the bill, is not sufficient to prevent the granting of an injunction, or to dissolve one already granted. No authorities were cited, yet Mr. Justice Washington was “ strongly of opinion upon principle, that such an answer is sufficient to produce either of the consequences which have been mentioned. The corporate body is called upon, and is compella-ble to answer all the allegations of tbe bill, but can do so under no higher sanction than its common seal.” He adds, that if the answer of a corporation denying the equity of the bill, cannot avail the defendant as an answer under oath would, to dissolve an injunction, then the dispensation extended to a corporation would make its situation more disadvantageous than that of other defendants, whose answers cannot be received otherwise than upon oath.

In the Fulton Bank v. New-York and Sharon Canal Co., et al., 1 Paige’s Rep. 311, it was decided that an injunction against a corporation cannot be dissolved on bill and answer, unless the answer is duly verified by the oath of some of the individual members who are acquainted with the facts stated therein, corporations answering under their common seal without oath, it was said were “ at liberty to deny every thing contained in the bill, whether true or false. Neither can any discovery be compelled, except through the medium of their agents and officers, and making them parties, defendants. But no dissolution of the injunction can be obtained upon the answer of a corporation which is not duly verified by the oath of some officer of the corporation, or other person who is acquainted with the facts therein. There can be no hardship in this rule as applied to corporations, as it only puts them in the same situation with other parties.” The chancellor further said, “ if the agents of the institution under whose direction the answer is put in, are acquainted with the facts, so as to justify a positive denial in the answer, they can verify its truth by a positive affidavit; and if none of the officers are acquainted with the facts, their information and belief can have no greater effect than that of ordinary defendants, however positive the answer in the denial may be.” To the same effect is 6 Paige’s Rep. 311. And it is intimated in no dubious terms by the supreme court of the United States, that the case cited from 4 Washington cannot be supported. [5 Peters’ Rep. 111.]

My brethren are of opinion that the answer of a corporation under its seal, is something more than pleading, and where it negatives the bill, warrants the dissolution of an injunction. I prefer to adopt the reasoning of the court in 7 Paige, and the dictum in 5 Peters. My researches furnish no case in which the answer of a corporation has been received, without the attestation of its common seal, and this I incline to think is necessary to its authenticity, where a discovery is not specially sought from its officers, agents, &c. But when an answer is thus authenticated, I can discover no objection to permitting the president, &c. to verify it by his own oath ; and when this is done, but not otherwise, accord to it the force of evidence.

According to the views both of my brethren and myself, the answer is made in such form as warrants a dissolution of the injunction, if it is sufficiently responsive to the bill; and to this question we now address ourselves. There can be no question but the answer denies every allegation of the bill, of which any equity may be predicated. The bill makes its statements in positive terms, and the answer is equally explicit ; but the oath of the party verifying affirms it to be true according to his “ best information and belief!” Neither of the complainsnts profess to have been present when the transactions took place between Christian and the defendant, and the reasonable inference is that they were not ; but al-ledge them from information and belief. This conclusion is strengthened by the remark that if the defendant’s undertaking to stand “ in the shoes of Christian,” “ was not made by the directions of the said Branch Bank, it was made by the authorized agents or trustees of said Branch Bank, as it well knows.” We think it altogether clear then, that the material facts of the bill cannot be understood to have been stated on the complainant’s knowledge ; and the bill cannot be regarded as more positive in its terms than the answer, and so far as it charges an agreement by the defendant to perform the covenants of Christian with Bradfute, is sufficiently denied by the answer. This being so, no reason is perceived why the injunction should not be dissolved. It will not be pretended that the defendant, by purchasing the fee of the land, became chargeable with the personal engagement of Christian to pay for improvements during the lease to Bradfute.

If the other matters stated in the bill formed a distinct and independent ground of equity, as it respects the defendant, we should perhaps conclude that these too, have been entirely swept away by the answer.

We have but to add, that the order dissolving the injunction, is affirmed,

GOLDTHWAITE, J-

My view of the practice, when a carporation is required to answer, is, that the difficulty of getting at a proper discovery, allows the particular officer of the corporation, charged with knowledge of the fact, or with acting for the corporation, to be made a party ; and in such, a oase, his ansryer determines the continuance of remedial process. When this peculiar practice is not conformed to, but the answer is sought from the corporation, the answer has the same effect as the answer by an individual. It is said the peculiar reason for making the officer a party must be set out in the bill, and if otherwise, it is ground for demurrer, as in ordinary cases a mere witness cannot be made a party. [See Story’s Equity Plead.]