Campbell v. Morrison

The Chancellor.

The vice chancellor was right in dissolving the injunction in this case upon the matter of the bill alone, without reference to the facts stated in the affidavits on the part of the defendants. The material facts constituting the only equity upon which the injunction rest»ed, were not verified in such a manner as to authorize the issuing of a general injunction ex parte to stay the defendant from proceeding until a regular answer could be put in. The complainant does not profess to know any thing of the facts upon which his application for an injunction is founded. He therefore merely swears to his information and belief; which information may have been derived from those who were no better informed than himself on the subject. Such an allegation is undoubtedly sufficient in a bill to call for a discovery from the defendant of the fact thus stated ; and it may in certain cases be sufficient to authorize the issuing of an injunction, where the defendant has had an opportunity tó be heard in opposition to the application. (Mumford v. Sales, In Chan. 20th March, 1838; The Attorney General v. The Bank of Columbia, 1 Paige’s Rep. 511.) But upon an application for a general injunction ex parte, if the complainant has no personal knowledge of the facts upon which the right to the injunction rests, he should state the facts upon his information and belief, and should annex to the bill the affidavit of the person from whom he derived his information, and who can swear to the facts. Cases may sometimes arise in which, from peculiar circumstances, it is impossible to procure the affidavit of any one who can swear positively *161 to the existence of the facts upon which the complainant seeks for an injunction. In such cases, upon a hill sworn to by the complainant, charging the facts upon his information and belief, and showing why it is impossible to procure the affidavit of the person from 'whom he derived his information and who knew the facts charged, the injunction master, instead of allowing a general injunction, should give the defendant an opportunity to be heard, by directing an order to show cause, as authorized by the 32d rule. In cases of emergency, where serious injury would probably be done to the complainant before a reasonable time to show cause would expire, the master, upon a bill thus framed, may allow a temporary injunction in the mean time ; which" falls of course when the time for showing cause arrives, if not continued by the court. Where an ex parte injunction is granted, as in this case, upon the mere oath of the complainant as to his belief of the material facts charged, and without any excuse for not procuring and annexing to his bill the affidavit of the person from whom the complainant’s information was derived, and who professed tó know the facts charged, it is a matter of course to dissolve the injunction, before answer, upon a proper application, under the provisions of the 34th rule.

I am inclined to think, also, that this was not a case in which the complainant was authorized to come into this court for relief, under the provisions of the statutes for the prevention of usury, without an offer to pay what was equitably due. It does not appear to be within the third .section of the act of May, 1837, to prevent usury ; (Laws of 1837, p. 487;) as the defendant had perfected his judgment -on the note before that act took effect. And before the passage of that act, a party who had a defence at law could not come into this court to ask for a discovery, or an injunction, without offering to pay the money actually lent. Whether the eighth section of the title of the revised statutes relative to the interest of money, (1 R. S. 772,) and the third section of the act of May, 1837, for the prevention of usury, embrace the case of a mere surety, who is not the borrower of money loaned, is a question not necessary to be decided *162 here. But certainly, if it was proper in behalf of the borrower to compel the usurer to criminate himself, or what is much more probable, to tempt him to commit perjury to screen himself from the penalty of his violation of the laws of his country, I can see no good reason why the same remedy should not have been extended to the innocent surety, who is generally the principal sufferer in such cases; as the borrowing of money upon usury generally ends in the insolvency of the real debtor.

There are certain cases in which a court of equity interferes to relieve a party against a judgment at law, although he might have made his defence there if he had availed himself of it in season. But it must be a special case to sustain such a bill, where no discovery was requisite to establish the defence at law ; as it is in the nature of an application for a new trial, which courts of law generally grant upon equitable terms. Where a party, however, has made a slip by which he has lost his legal right of setting up a defence which is to operate as a penalty upon the~other party, courts are not in the habit of relieving the party who is seeking more than equity, unless he consents to do what is equitable and just as between him and the adverse party. In this case, as the complainant had been deprived of his defence at law by the neglect of the principal debtor to in-' form him, until after the judgment, that such a defence existed, I presume the supreme court would have permitted him to come in and make his defence as endorser of the note, upon payment of the amount, actually loaned, with interest, and the extra costs occasioned by his neglect to make the defence in an earlier stage of the suit. And under the circumstances of the case a court of equity ought not to interfere upon any other terms, even if the supreme court would not have permitted the complainant to make his defence there.

For these reasons the order of the vice chancellor, dissolving the injunction, must be affirmed with costs.