Thorne v. Halsey

7 Johns. Ch. 189

• Court: New York Court of Chancery
• Decided: July 1, 1823
• Status: Published

Opinion

The Chancellor.

The affidavit annexed to the bill Is not sufficient. It states, that on a fair and just settlement of accounts, he verily believed the defendant would be found justly indebted to him in 5000 dollars. He does not swear positively to any indebtedness. That is a fatal defect. The books only allow the plaintiff, in matters of account, to swear according to his belief, as to the amount, or balance; but he must swear, positively, that a balance is due, though he need not swear to any certain sum.,

In Done’s case, (1 P. Wms. 263.) it was a matter of account, but money was sworn to be due; and in Rico v. Gualtier, (3 Atk. 501.) there is a loose observation, that in a bill for an account, the plaintiff swearing that he believes the balance in his favour would amount to so much, is sufficient. But that very observation implies that he must swear positively that a balance is due, and then add his belief as to the amount. Lord Eldon, in Amsinck v. Barklay, (8 Ves. 594.) said, that he should, in future, pause upon the practice of Lord Hardwicke, as to merely stating belief as to the balance of an account, unless the party stated facts or declarations, as the ground of that belief. Afterwards, in Jackson v. Petrie, (10 Ves. 164.) he considered the precedent of Lord JET., that in the case of partners and executors, information and belief were held sufficient, to be a bold precedent. In Dick v. Swinton, (1 Ves. Bea. 371.) the plaintiff was an administrator, and it was a partnership transaction, and a matter of account, and yet the plaintiff swore to a debt, as being at least due to a certain amount.

The plaintiff, in the present case, had it in his power to ascertain with certainty whether a balance was coming to him. He knew the net proceeds of each preceding voyage, and that the defendant was entitled to one third of those proceeds, and he was the consignee of each return cargo, and sold it, and must be in possession of all the accounts, and materials enough to have stated an account. It is very uncertain, from the facts and declaration in the bill itself, whether the balance of profits still due to the defendant, on all the adventures taken together, may not equal all that he has received and appropriated as the proceeds of the last voyage; and there is no certain cause of action stated, as arising out of the proceedings in St. Domingo.

Without, therefore, looking into the answer, I think the affidavit for the writ was not sufficient, in the first instance; and though the plaintiff has three weeks to except to the answer, I do not mean to say that the defendant must, in every case, wait the expiration of the three weeks, and the period that may be consumed in exceptions, references, reports, and exceptions to the reports, and the whole series of vexatious and petty litigation, touching some parts of a long answer, before he can move, on the ground of the an= swer, for a discharge of the writ. The answer may not be perfect in all its parts, as to the whole matter of the bill, and yet contain sufficient matter unaffected by the defective parts, to induce a discharge of the ne exeat. It must rest in discretion, how far the answer, before it has become matured by time or decision on exceptions, is sufficient for the purposes of sucls a motion as the one before me. I have, therefore, permitted! the answer to be read, and deem it amply sufficient for the purpose of destroying all pretence for the writ, even if the writ had been well sustained by the bill and accompanying affidavit.

Motion granted1;