Conolly v. Riley

Cochran, J.,

delivered the opinion of this Court.

The appellants insist upon a reversal of the order granting an injunction in this case, on the alleged ground of insufficiency in the allegations of the bill, and for the further reason that the oath verifying the statements of the bill, does not affirmatively appear to have been administered by a person qualified by the laws of this State to administer an oath in such cases.

A careful examination of the bill, which, if properly verified, must be taken as true for the purposes of this appeal, has satisfied us that the objections made to it are not well founded. The appellees were bound to exhibit with their bill such evidence of their claim as would satisfy the Court of their right to proceed in that mode to obtain relief, but full proof of it was not necessary. The copy of the docket entries exhibited with the bill shows, as the bill states, that they had obtained a judgment against Conolly, and although it would not be received as full and conclusive proof of the existence and amount of the debt, yet, according to the usual course of practice, the Court was at liberty to treat it as sufficient for the preliminary purposes of the bill. The rule applicable to such cases, as stated in the Union Bank vs. Ellicott, 8 G. & J., 321 , is, that “ strong'prim,a facie evidence of the facts on which the complainant’s equity rests, must be presented to the Court to induce its action.” Under the *418 circumstances appearing here, we think this exhibit of the docket entries was evidence of that character, and sufficient to satisfy the requirements of the rule referred to.

The bill formally alleges that Conolly, fraudulently combining with McCarthy to prevent the appellees from obtaining satisfaction of their judgment, executed their bill of sale of the stock in trade, goods and chattels ■ in the store and dwelling No. 22 South Sharp street, to McCarthy for a pretended consideration of $625.90, and that if any part of this consideration was paid, the bill of sale was, nevertheless, not executed in good faith, but was a device to cheat the appellees and prevent them from obtaining payment of their debt. It also alleges that Conolly, notwithstanding the bill of sale, retained possession of the property mentioned in it; that he continued to use and dispose of it as his own, and appropriate the proceeds to his own use; and further, that the appellees were unable to discover any property belonging to Conolly other than that mentioned in the bill of sale.

These allegations, we think, were sufficient to authorize the order for an injunction. The fraudulent character of the bill of sale as against the appellees, is clearly and specifically charged; and the allegation that Conolly remained in possession of the property and continued to use and dispose of it as his own, must be regarded as a sufficient statement of the facts upon which to found the allegations of fraud in the bill of sale. The allegation that Conolly used this property as his own and that no other property belonging to him could be discovered, amounts to an averment that the property mentioned in the bill of sale was his, and that the appellees were without remedy, unless the property so held by him could be reached and made liable for the payment of their debt. An allegation that the property of a debtor is beyond the reach of legal process of his creditor is as effective, in the way of inducing a Court of Equity to exercise its extraordi *419 nary restraining power, as an allegation of insolvency would be; and, under tbe circumstances disclosed in this bill, the allegation that no other property of the debtor could be found than that mentioned in the bill of sale, must be taken as equivalent to an express allegation of insolvency.

The oath that the several matters and things stated in the bill are true, was administered and duly authenticated by a notary public in the District of Columbia, and it is objected to for the reason that this officer does not appear to have been authorized by law to administer oaths in such cases. This objection is altogether technical and foreign to the substantial equities disclosed by the bill, and, of course, must be disposed of by the established rule applicable to such a state of case. All that the Court could require was, that the statements of the bill should be verified by an oath of one or both of the appellees, administered by any person legally competent to perform that office, and had the oath been administered by any notary of this State, its sufficiency could not have been questioned, as that class of officers are expressly authorized by our laws to administer such oaths. But here the oath was taken before a notary of the District, in respect to whose legal competency nothing appears on either side. The administration of the oath and authentication of it by his notarial seal are, however, facts from which we should naturally presume that these acts were done in the regular exercise of powers conferred by the laws of the District. It is not necessary, however, to rest upon this presumption alone, for in the absence of proof of the statutory qualifications of the notary to administer this oath, it would, according to our practice, be supported by the presumption that he had the same power under the laws of the District as that class of officers have under the laws of this State; or in other-words, that the laws of the District, in that respect, are the same as our own. In the case of Harper vs. Hampton, 1 H. & McH., 687 , a question was raised in regard to the validity of *420 a deed of lands in South Carolina, and it was held that the laws of another State, when proved, would govern in determining the validity of a deed of lands in that State; but in the absence of proof of the laws of that State, the question of validity would be determined by the.laws of this State. This proposition goes altogether upon the presumption that the laws of the State where the land is, correspond with those of our own State relating to the same subject. The same doctrine was again recognized in Gardiner vs. Lewis, 7 Gill, 377 ; and, in our opinion, the rule established by these cases may be applied here. We should, therefore, assume, as our own laws authorize the notaries of this State to administer oaths in cases like this, that the same power is conferred upon the notaries of the District by the laws of the District. We think, as the case now stands, that the objection to the oath in question should not be sustained.

(Decided July 12th, 1866.)

The order granting the injunction must be affirmed, with costs to the appellees, and the cause remanded.

Order affirmed and cause remumded.