9 Paige Ch. 305 | New York Court of Chancery | 1841
I think the objection that the bill was not properly verified to entitle the complainants to an injunction, is well taken. Where a corporation aggregate is complainant, the bill, from the necessity of the case, must be verified by some officer or agent of the corporation. In this case the counsel for the bank, as appears from the affidavit, was better acquainted with the facts and circumstances of the case than the president and cashier, who resided in a distant part of the state and could not know any thing of the charges in the bill upon which the application for an injunction was founded. He, therefore, was a proper person to verify the bill, if he could swear to the material allegations therein as matters within his own
Bills which are to be verified by the oath of the agent or attorney for a complainant should be drawn in the same manner as bills which are to be sworn to by the complainant himself; stating those matters which are within the personal knowledge of such agent or attorney positively. And those which he has derived from the information of others should be stated or charged upon the information and belief of the complainant. And the oath of the agent or attorney, verifying the bill, should state that the deponent has read the bill or heard it read, and knows the contents thereof, and that the same is true of his own knowledge except as to the matters which are therein stated to be on the information or belief of the complainant, and that as to those matters the deponent believes it tobe true. (1 Hoff. Pr. 79, and App. No. 20.) In the case of ex parte applications for injunctions, or ne exeats, founded upon such bills, if any material allegation or charge which is necessary to be sworn to positively, to authorize the issuing of the injunction or ne exeat, is not within the personal knowledge of the agent or attorney w'ho verifies the bill, he should, in addition to his own verification, annex to the bill an affidavit of the person from whom he derived his information-,
Neither of the defendants resided within the third circuit at the time of the commencement of this suit j and probably they have never resided there. Nor is it suggested that any part of the assigned property is situated within that circuit. And if the subject matter of the suit had any locality, at the time of filing the complainants’ bill, it .was not within the limits of the third circuit, so as to give the vice chancellor jurisdiction on that ground. If he has.any jurisdiction of this case, therefore, it must be upon the ground that the bill shows that the cause or matter which .authorized the commencement of this suit arose within his circuit. (2 R. S. 168, § 2, sub. 1.)
The only matters charged in the bill as having arisen or occurred in that circuit, are the recovery of a judgment at the capítol in the city of Albany, against Doane & Potter and the other endorsers upon the note discounted by the Bank of Orleans; the docketing of the judgment in the office of the clerk of the supreme court at that place ; and the filing of the execution in the same office when it was returned by the sheriff of Washington county unsatisfied. And I am unable to discover any connection bet ween these circumstances and the causes or matters which authorize the filing of this bill in equity. Had this been an ordinary creditor’s bill, to obtain satisfaction of the complainant’s debt out of the property of the defendants, after.an execu
Nor would the proposed amendment of the bill have obviated the objection. Although the note which was the foundation of the indebtedness of Doane & Potter, was made payable at a bank in Troy, and was probably protested there for non-payment, that did not constitute the cause of filing this bill, so as to give the vice chancellor jurisdiction of the case. The note became due and payable in the month of October, 1839, and the endorsers had been charged, if ever, sometime previous to the assignment to these defendants. The foundation of this suit, therefore, was the assignment of the property of Doane & Potter to the defendants, to pay the debt for which that note was given and which had then become due and payable, and to pay the debts of the other creditors of the assignors; the acceptance of the trust by the assignees; and the
So much of the order as is appealed from by the defendant Skinner must be reversed ; and the injunction is to be dissolved with costs, as improperly issued. And the part of the order denying the application to amend, to which the cross appeal of the complainant relates, must be affirmed with costs.