Youngblood v. Schamp

15 N.J. Eq. 42

• Court: New Jersey Court of Chancery
• Decided: May 15, 1862
• Status: Published

Opinion

The Chancellor.

There should be a special affidavit of tho truth of the facts upon which the application for an injunction is founded. An injunction issued upon the common affidavit in the form ordinarily annexed to an answer will be dissolved very much as a matter of course. Eden on Inj. 377, 380; Campbell v. Morrison, 7 Paige 157.

It is rarely, if ever, that the right to an injunction can rest upon the acts of the complainant, and it is in relation to those, alone, that the affidavit professes to be founded on knowledge. As to the acts of all others, it is founded on belief only.

It is not necessary that the facts should be proved by the affidavit of the complainant. Where the material facts are not within his knowledge, they should be verified by the oath or affirmation of some person who has a knowledge of tho facts; or duly verified copies of private instruments or of records may be annexed to the bill, where such is the appropriate mode of proof. Bank of Orleans v. Skinner, 9 Paige 305; Bule IX, § 11; Nix. Dig. 90, § 15.

There is a class of cases, as for example bills charging fraud, and praying a discovery, where, in the very nature of things, positive proof cannot be expected. In such cases the additional verification may be dispensed with, and the injunction issue upon the affidavit of the complainant, founded on his belief alone. Attorney General v. Bank of Columbia, 1 Paige 511; Campbell v. Morrison, 7 Paige 157.

The bill is usually sworn to by the complainants, or one of them. But if he be absent, or his affidavit for any reason cannot be procured, it may be sworn to by the attorney of the complainant, or by any person acquainted with the facts. 1 Smith’s Chan. Pr. 595; 3 Daniell’s Chan. Pr. 1890; 1 Hoffman’s Chan. Pr. 79; 3 Ibid. 18, No. 21.

Where the bill is filed by a corporation, the officer or other person who has the principal personal knowledge of tho facts should swear to them. 1 Hoffman’s Chan. Pr. 78; 3 Ibid. 18, No. 20; Bank of Orleans v. Skinner, 9 Paige 305.

By tho English practice, the affidavit cannot be sworn until after the bill is filed. 1 Smith’s Chan. Pr. 195; 3 Daniell’s Chan. Pr. 1890.

A contrary practice prevails in this state. The affidavit is ordinarily made before the bill is filed, and is annexed to .and filed with the bill.

The affidavit, in its present form, is not sufficient. The verification should extend to all the material facts upon which the right to an injunction rests.