Wallace v. Duncan

13 Ga. 41 | Ga. | 1853

By the Court.

Lumpkin, J.

delivering the opinion.

The only point in the case is, as to the sufficiency of the affidavit, under the Act of 1830, passed for the protection of the rights of remainder-men and reversioners in personal property, Cobb’s New Digest, 527.

The proper mode of proceeding under this Statute, is for the bill to contain the necessary allegations, as to the nature and description of the property, the complainant’s title, &c. and all those issuable facts which may be contested, and if done successfully, upon the coming in of the decree to that effect, the bond originally taken, falls to the ground. And the affidavit should pursue substantially, if not literally, the terms of the Act.

Here the bill set forth the complainant’s right to the property in dispute — its value — and that he entertains serious apprehensions that it will be removed beyond the limits of the State, and that his rights will be impaired unless adequate relief is afforded for their protection and preservation. Had the oath been sufficiently positive as to the truth of these charges, we should be inclined to sustain the proceeding, notwithstanding the omission to repeat these facts in the oath, in literal compliance with the provisions of the law.

But the question recurs, is the affidavit sufficiently positive ? It is in the usual form of an oath appended to a bill in Equity: that the facts stated in the bill are true, so far as they depend upon the complainant’s own knowledge; and so far as they depend upon the information of others, he believes them to be true. What portion of these facts depend upon the complainant’s own knowledge, and what portion upon the information of others, does not appear. Suppose the whole depended upon-the information of others, and such maybe the case for anything in the affidavit to the contrary, it would not be contended that he would be entitled to the harsh remedy given by this Statute. It cannot be said that he swears even to his interest in the property. In bills at Common Law, to obtain a ne exeat upon equitable demands, certainty as to this point is necessary. They are analogized to cases of bail at Law, where the creditor must swear to his dpbt.

Suplióse that Wallace was indicted for perjury upon this affidavit. Would it not he indispensably necessary for the State to show before a conviction could be had, that all the facts charged in the bill had not only not come to the knowledge of the affiant, but that he did not believe them upon the information of others. Such looseness was never intended to be sanctioned by the Legislature.

In support of our opinion as to the want of positiveness in the complainant’s verification of this bill, see Elches vs. Lance, 7 Ves. 417. Oldham vs. Oldham, 7 Ves. 410; 8 Ves. 33. Jones vs. Alephson, 16 Ves. 470. Percy vs. Powell, cited in Beame’s “ View of the Writ of Be Bxeat,” p. 25, MS. case of Mr. Bell.

Judgment affirmed.