Opinion
(June Term, 1860.)
"An affidavit of the truth of the matters contained in his bill" is necessary to give jurisdiction of the court of equity under the statute, Rev. Code, chap. 7, and the want of such affidavit is a good ground for a general demurrer.
CAUSE removed from the Court of Equity of MONTGOMERY.
No counsel for plaintiff.
Blackmer for defendant.
The bill was filed to subject the legacy of the defendant, under the will of Wilson Andrews, which is a remainder in slaves, etc., after the death of Mary G. Andrews, to the payment of plaintiff's debt. The nature of the debt, and how due, is set out in the bill, and various other matters are alleged, but the affidavit appended to the bill makes no verification of anything therein contained, except that the defendant John T. Andrews resides beyond the limits of the State. As this is the turning point of the case, it is deemed proper to set out the affidavit verbatim.
"NORTH CAROLINA — Montgomery County.
"Personally appeared before me, E. J. Gaines. clerk and master in equity in and for the said county, E. L. Barringer, who, being duly sworn, declares that the defendant John T. Andrews resides beyond the limits of the State. E. G. L. BARRINGER.
"Sworn to and subscribed before me E. J. GAINES, C. M. E."
(349) The defendant filed a general demurrer, and the cause was sent to this Court for argument.
This is a bill filed to attach, in equity, under our statute, certain interests in remainder of John T. Andrews, in property bequeathed to him by Wilson Andrews. A general demurrer was put in, which brings up the inquiry whether there is enough on the face of the bill to entitle the plaintiffs to the equitable relief which they seek.
The statute which gives the remedy (Rev. Code, chap. 7, sec. 26) declares that "the plaintiff shall state specially his debt or demand as near as he can, and shall make affidavit of the truth of the matters contained in his bill, according to his information and belief."
No such affidavit as is here required appears in the proceedings, and we suppose none was made. The bill contains a statement of the amount of the debt and the manner in which it accrued; the "jurat" at the foot states only that the defendant John T. Andrews resides beyond the limits of the State. That is all. There is no affidavit of the truth of the matters stated in the bill, and we think this defect is reached by a general demurrer.
This attachment in equity of property or estate that could not be reached by law is the creature of legislation, and is given only on the condition that a specific debt shall be alleged to be due, and that the allegation shall be made under oath. To give the remedy, and consequently to give jurisdiction to the court, it is essential there should be a debt, and a debt sworn to be due. The willingness of the creditor to give assurance, by oath, of the justice of his claim is the ground of the bill. The oath, therefore, is not mere form, but of substance, by force of the statute.
The assertion of a demurrer, according to Mr. Adams, is that plaintiff has not, on his own showing, made out a case, and this assertion, according to our view, will reach the defect in the plaintiff's (350) bill — a defect apparent upon its face. The ordinary grounds of a demurrer are want of jurisdiction, want of equity, multifariousness, and want of parties. One of the grounds alleged in the case before us is want of jurisdiction; the verification of the debt by oath being necessary to give power to the court to take cognizance of the subject-matter.
It is not neccessary [necessary], in equity, to set out specially the ground of the demurrer. The assertion of a general demurrer, that the plaintiff's case is bad upon his own showing, is sustained if, upon the trial, any ground is shown making good that position. And even when special ground is taken in the demurrer, other grounds may be shown on the trial. We are of opinion, therefore, that a general demurrer will apply to the defect in the plaintiff's case, and is fatal to it. In Allen v. Bank, 21 N.C. 7, which was a bill filed to recover certain lost notes, and in which a question arose as to the verification on oath of the bill, the Judge delivering the opinion of the Court says: "When a bill is brought, not for discovery merely, but also for relief, the practice of the Court generally requires that an affidavit of the loss of the written instrument should be annexed, because it is the loss which constitutes the reason for changing the forum and transferring to the court of equity an ordinary case of relief in the courts of law. The want of such an affidavit would be a good ground of demurrer."
What was here said is in point upon the question we are here considering. A verification on oath, in our case, is essential, because such verification of a peculiar state of facts constitutes the reason for putting into action the court of equity.
We have not thought proper to discuss another ground of demurrer, which was brought forward upon the argument, to wit, that the interest of John T. Andrews was not such as could be attached. It is not necessary in consequence of the view taken of the first ground.
PER CURIAM. Demurrer sustained and bill dismissed.
(351)