Mahaney v. Lazier

Under the provisions of the Code, an answer without oath, when the bill does not require an answer under oath, is sufficient to put the cause at issue, and upon final hearing, and to authorize an appeal from an order granting an injunction, but to sustain a motion to dissolve an injunction the answer must he sworn to, whether the oath be required by the hill or not. In a bill by a creditor, the charge that the debtor fraudulently executed a bond, without consideration, upon which he was about to confess judgment, for the purpose of defeating his creditors, is sufficient to show jurisdiction in equity, to grant an injunction to restrain proceeding oil such bond. In such a hill the claim of the complainant must be distinctly stated, and exhibits showing the existence of the claim must accompany the bill, in order to satisfy the conscience of the court.

Appeal from the Equity side of the Superior Court of Baltimore City. Appeal from an order granting an injunction upon a bill filed on the 13th of February 1860, by the appellees against the appellants. The bill alleges that the complainants had caused two attachments on warrants to be issued, the one from the law side of the Superior court, and the other from the Court of Common Pleas, upon transcripts of judgments rendered in Taylor county, Yirginia, in their favor against Mahaney, both of which writs of attachment were laid in the hands of the Fire Insurance Company, of Baltimore, and Mahaney appeared, by attorney, to the capias, in each case, and that Mahaney is justly and bona fide indebted to them in the amounts called for in said judgments; that on the 22nd of July 1858, Mahaney, conspiring with one James R. Smith to defraud complainants, and his other creditors, executed to Smith his bond, purporting to bear date the 1st of January 1858, for $2500, payable, one day after date, to the order of Smith, who thereupon passed the same to Howard & Co.; that Mahaney at that time held a policy of the Fire Insurance Company of Baltimore, upon which there had previously been a loss; that subsequently to this loss, but prior to the 22nd of July 1858, five attachment suits had been instituted against Mahaney in the Superior court and the Court of Common Pleas, all of which were laid in the hands of said insurance company, and that Mahaney and Smith, conspiring to defeat these and subsequent attaching creditors, made said bond on or about the day last mentioned, and ante-dated the same, for the purpose, the more effectually to cover the fraud; that upon this pretended bond the assignees, Howard & Co.; caused an attachment on warrant to be issued from the Superior court, and laid in the hands of the said insurance company, and Mahaney, by his attorney, appeared to the capias in this attachment, and, carrying out the fraud thus begun, instructed his attorney to defend all the other attachments, but to enter judgment in favor of Howard & Co.; that by nonpros., compromise and settlement, all the attachments earlier in -date than that of Howard <fc Co. have been disposed of; that the insurance company have agreed to pay $1500, as loss upon said policy as soon as it is ascertained to whom it can be legally paid, but as this sum is not sufficient to satisfy the pretended claim of Howard & Co., and the just demands of the complaiuants, they have, through their counsel, appealed to the attorney of Mahaney to allow them to plead to the suit of Howard & Co., and defend the same, but he, producing the instructions of his client, Mahaney, refuses this request, and is about to confess a judgment as against Mahaney in favor of Howard & Co. The bill then further charges that the complainants having no remedy at law against this fraud,, are compelled to come into equity; that this pretended bond is a fraud; that no consideration ever passed from Smith to Mahaney, nor any from Howard & Co. to Mahaney or Smith, and that it was made for the sole purpose of defeating the honest claims of just creditors of Mahaney. The bill then calls for answers, but, not on oath, and prays for an injunction restraining the defendants from further proceedings upon this bond, and for general relief, and was sworn to by one of the complainants. The court (Martin, J.) granted the injunction as prayed, and the defendants having filed their answers, not under oath, in which they deny the fraud charged in the bill, and assert the bona fides of the-bond in question, appealed from the order granting the injunction.