Edwards v. Massey

• Decision Date: 30 June 1821
• Court: North Carolina Supreme Court
• Parties: EDWARDS v. MASSEY.

8 N.C. 359

EDWARDS

v.MASSEY.

SUPREME COURT OF NORTH CAROLINA

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, defendanthaving 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.

(363)

HENDERSON, J. The affidavit on which the order of sequestration was awarded is defective, in not stating positively the existence of...