Opinion
June Term, 1821.
(IN EQUITY.)
1. 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.
2. The rule that courts of equity interfere by ne excat only in case of equitable demands, applies where money, not property, is the subject of controversy.
FROM WAYNE. The bill in this case set forth that complainant was the owner of a negro slave who had 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 the 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 (360) having failed to give bond, the property went into the possession of the sheriff.
The answer 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 this Court.
Gaston for the appellant.
Mordecai for the appellee.
The affidavit on which the order of sequestration was awarded is defective, in not stating positively the existence of facts on which the application was grounded, or, if only matter of belief, the grounds of the belief, that the court might judge whether it was a rational and well-founded belief, or an idle and vain one; and, did this case stand on the bill alone, I think the sequestration should be 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 by proofs or admissions.
(364) In this case, taking bill 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; 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 estrepement, 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 the 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 (365) in particular cases. This, I think, is one of those cases where it will, for the reasons before given.
Let the sequestration be sustained.
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.
Cited: Miller v. Washburn, 38 N.C. 166; DuPre v. Williams, 58 N.C. 99.