ant's property, but only such a removal or disposition with an intent to defraud his creditors. Brewster v. Hodges, 1 Duer, 609. a. On motion to vacate an injunction order granted without notice, founded ou notice and upon the complaint, the affidavit upon which the injunction was granted, copy injunction order, copy affidavit of the plaintiff, and copies of the pleadings, the moving parties must furnish proof of suit commenced, and the issuing of the injunction order, the identity of the papers produced, and that the injunction was obtained without notice (Osborn v. Lobdell, 2 Code Rep., 77.) However, in Newbury v. Newbury (1 Code Rep. N. S., 409; 6 Pr. R., 182), on a motion to vacate an injunction order, a preliminary objection was made, on the ground that it did not appear that any action had been commenced. The notice of motion entitled in the action, stated that the motion would be founded on "a copy of the injunction and papers served therewith." But, per Gridley, J., "I see no greater reason for an affidavit that an action is pending in this case, than in a motion made on the pleadings. On a motion to be heard on the pleadings it is never necessary to serve copies on any of the parties to the action; it is only where a motion is made against a person who is not a party to the action, that it is necessary to serve copies of the pleadings. I am of opinion, notwithstanding the case of Osborn v. Lobdell (2 Code Rep., 77), that the notice of motion and proof of service are enough, in the first instance, to entitle the opposite party to read the papers served on him." b. It was held under the code of 1848, that on a motion to dissolve an injunction if the complaint and affidavit make out a prima facie case, the answer verified in the ordinary form will not be sufficient to warrant the dissolving of the injunction. Benson v. Fash, 1 Code Rep., 50; Roome v. Webb, 1 Code Rep., 114; 3 Pr. R. 327. But an affidavit can be annexed in such form as to verify positively the allegations of an answer, and make it a part of the affidavit necessary to be used on an application to dissolve an injunction. Ib. And such form as was formerly used in the jurat to verify a bill in chancery would be sufficient. Ib. It must be recollected, however, that the code of 1848 required a verification only to the effect that the party believed it to be true. (Code of 1848, s. 133.) That section was amended in 1849, and the mode of verification then required was such as that formerly used to verify a bill in chancery. After this change in the law, in Krom v. Hogan (4 Pr. R., 225), it was taken for granted, that an answer verified as required by the code, might be used as an affidavit on a motion to dissolve an injunction; and the same views were expressly held in Schoonmaker v. Ref. Dutch Church of Kingston (5 Pr. R., 268.) The opinion of Sill, J., in Millikin v. Cary (5 Pr. R., 272), leads to an opposite course; in which case, he observed, that "The terms pleading and affi davit, have never been understood as synonymous." And in Servoss v. Stannard (2 Code Rep., 56), Edwards, J., said, "The word affidavit can hardly be understood to mean answer." A sworn complaint is an affidavit. Roosevelt, J. Mott v. Dunn, 10 Pr. R. 232. c. The question was again discussed in Minor v. Terry, 6 Pr. R, 210; when Gridley, J., held, that a verified pleading might be used as an affidavit. d. The motion to dissolve the injunction is more frequently made before than after answer; but where made after answer, the answer duly verified is now universally received and permitted to be read as an affidavit. See note to section 226. e. Under the present practice a motion to dissolve an injunction may be made and opposed upon affidavits of any number of witnesses; it therefore becomes a matter of judicial discretion, upon balancing the evidence adduced, to dissolve it or Minor v. Terry, 6 Pr. R., 211. not. f. "Under the old system, a responsive answer, positively sworn to, where there were no suspicious circumstances, entitled the defendant to a dissolution of the injunction (1 Johns. Ch. R., 211; 2 b., 202; 4 1b., 26; 4 Paige, 111; 1 ib., 164); and this notwithstanding the plaintiff might have witnesses to prove the equity of his bill. Under the present practice, where the motion is made on affidavits, and may be opposed by affidavits of any number of witnesses, it becomes a matter of judicial discretion either to dissolve the injunction or not. It may, however, be laid down as a general rule, that where the plaintiff has an opportunity to answer the affidavits produced on the part of the defendant by the affidavits of his witnesses, as well as his own, and fails to make a successful answer to the motion, the balance of the evidence being decidedly in favor of the defendants, the motion to dissolve the injunction will be granted. It will be regarded as an additional reason for granting the motion, that the main facts on which the motion is opposed, are sworn to only by the plaintiff, who cannot be a witness on the trial, and his statement is contradictory to that of several persons who are competent witnesses." Ib. a. It is a sufficient answer to a motion to vacate an injunction, that the defendant is in contempt for disobeying it. Krom v. Hogan, 2 Code Rep., 144. The decision, however, in Krom v. Hogan, is said in Smith v. Austin (1 Code Rep. N. S., 135) and Smith v. Reno (6 Pr. R., 124), not to be warranted by the authorities cited; and in both the cases, Smith v. Austin and Smith v. Reno, it was held, that " It is no answer to a motion to dissolve an injunction to show that the defendant has violated it. A party is not in contempt until he has been so adjudged by the court. But even when a party has been adjudged in contempt, he is only prevented thereby from asking a favor, not from demanding a right; and the motion to dissolve an injunction is the demand of a right." b. A want of due diligence in prosecuting the action is a cause for dissolving the injunction. De Peyster v. Graves, 2 Johns. Ch. R., 204; Higgins v. Woodward, Hopk., 342; Seebor v. Hess, 5 Paige, 85. But only as to the defendants served with process; for a neglect to serve the summons and injunction order on some of the defendants, is not a ground for dissolving the injunction as to those served. 5 Paige, 85. c. Nor will an injunction be dissolved for any defect in the undertaking filed by the plaintiff to obtain same. Williams v. Hall, 1 Bland, 194. And omitting to serve some defendants gives no right to those served to move to vacate the injunction for that cause. Seebor v. Hess, supra. d. A motion to vacate an injunction order, once denied, cannot be renewed, unless leave be reserved, or some new ground for vacating it arise. Hoffman v. Livingston, 1 Johns. Ch. R. 211. e. The granting, continuing, and dissolving of temporary injunctions rests in the discretion of the court of original jurisdiction; and therefore an appeal will not lie from an order dissolving a temporary injunction. Vandewater v. Kelsey, 2 Code Rep., 3. f. According to the practice prior to the code, an injunction would not be dissolved on the coming in of the answer, unless the defendants positively denied all the equity of the bill. A denial upon information and belief was not sufficient. Ward v. Van Bokkelin, 1 Paige, 100; Apthorpe v. Comstock, Hopk, 148; Wakeman v. Gillespy, 5 Paige, 112. Where the answer did not deny the facts charged in the bill positively and fully, although the denial was as full as could be given by the party under the circumstances, the injunction would not be dissolved. Roberts v. Anderson, 2 Johns. Ch. Rep., 204. And even where all the equity of the bill was denied by the answer, it was not a matter of course to dissolve the injunction ; as the granting and continuing an injunction always rested in the sound discretion of the court, to be governed by the nature of the case. Ib. Moore v. Hylton, Dev. Equity Rep., 429; Bank of Monroe v. Schermerhorn, 1 Clarke, 303. The statement of the defendant had to be at least credible. Any evasion in not responding to the charges in the bill, or an extreme improbability in the statement of the defendant, would induce the court to retain the injunction. Moore v. Hylton, supra; Williams v. Hall, 1 Bland, 195. So, if the defendant's answer was contradictory. Tong v. Oliver, 1 Bland, 199. And if the equity of the bill was not charged to be in the knowledge of the defendant, and the defendant merely denied all knowledge and belief of the facts alleged therein, the injunction would not be dissolved on the bill and answer alone. Rogers v. Rogers, 1 Paige, 426. So, if the court could see in the facts disclosed in the answer good reason for retaining the injunction, it would be retained, notwithstanding a full denial of the equity of the bill. Bank of Monroe v. Schermerhorn, 1 Clarke, 303. g. It was a general rule, however, that if the facts on which the complainant's equity rested were positively denied the injunction must be dissolved. Gibson v. Tilton, 1 Bland, 355. See an obiter dictum to this effect, Falconer v. Elias, 3 Sand, 731; 1 Code Rep. N. S., 155. And see Perkins v. Warren, 6 Pr. R., 341. The answer was sufficient if it disproved the facts in the bill. McFarland v. McDowell, 1 Car. Law Repos., 110. It needed not to invalidate, by full proof, the facts in the bill. The defendant needed only to show that the evidence of the complainant was entitled to no credit. North's Ex'rs v. Perrow, 4 Rand., 1. a. An injunction against a corporation could not be dissolved on bill and answer; the answer must be duly verified by the oath of some of the corporation, who are acquainted with the facts stated therein. Fulton Bank v. New York and Sharon Canal Co., 1 Paige, 311. b. A defendant might answer an injunction bill on oath, for the purpose of moving thereon for a dissolution of the injunction, although an oath was waived or was not necessary. But such answer had no other or greater force as evidence than the bill. Manchester v. Day, 6 Paige 295. It therefore made no difference on an application to dissolve the injunction on bill and answer, that the bill was supported by the oaths of several complainants. Manchester v. Day, supra. An injunction would not be dissolved, although the whole equity of the bill was denied by the answer, unless the answer was sworn to. And where the complainant waived an answer on oath, if he annexed to and filed with his bill affidavits of other persons, verifying the facts stated therein, it was not a matter of course to dissolve the injunction on the oath of the defendant. c. Notwithstanding the waiver of an answer on oath, the answer had to be sworn to, if the defendant wished to dissolve the injunction on the ground that the equity of the bill was fully denied. Dougrey v. Topping, 4 Paige, 94. If the answer was sworn to, however, and the whole equity of the bill was denied by it, if no affidavit of a disinterested witness was annexed to the bill, the injunction would not be dissolved, although security for debt and costs in the suit at law had been given under the provisions of the revised statutes on that subject. Manchester v. Day, 6 Paige, 295. d. On motion to dissolve the injunction upon complaint, answer, reply, and affidavits, the whole may be examined to ascertain the necessary facts, although there is a denial on oath, in the answer of the facts alleged in the complaint. Malcomb v. Miller, 6 Pr. R., 456. See note to section 226. $226. [199.] Affidavits on motion. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the injunction was granted. e. In Servoss v. Stannard, 2 Code Rep., 56, Hurlbut, J., said it was extremely doubtful whether, where the motion is made on the answer verified, the plaintiff could oppose by affidavits on his part; and in the same case, Edwards, J., said, "The word affidavit, in section 226, can hardly be construed to mean answer. We find the words answer and affidavit, throughout the code, applied to different objects, and certainly, in their ordinary acceptation, they are not synonymous. There are some words in the code which the legislature intended should have a signification different from that usually assigned them; these have been enumerated, and their arbitrary definition given. The word affidavit is not among the words to which the legislature have attached a peculiar meaning; and I see nothing in the code, nor am I aware of any decision, which would justify me in holding that an answer verified in conformity with the code is an affidavit. The plaintiff, therefore, cannot be permitted to introduce, in opposition to this motion, any affidavits or other proofs in addition to those on which the injunction was granted." And the same was said to be the opinion of the six judges of the superior court. Hartwell v. Kingsley (2 Code Rep., 101). See, also, Benson v. Fash (1 ib., 50); Roome v. Webb (1 ib., 114); Milliken v. Cary (3 ib., 250). Parker, J., however, held otherwise in Krom v. Hogan (2 ib., 144; 4 Pr. R., 225), and permitted the plaintiff in a similar case to oppose by affidavit. a. In Hartwell v. Kingsley, supra, it was further held, that where the motion is made on a verified answer only, the plaintiff could not read his reply in opposition. In subsequent cases, Schoonmaker v. Ref. Prot. Dutch Church in Kingston (5 Pr. R., 267; 3 Code Rep., 232) the defendants put in an answer verified as required by section 157, and, on the answer thus verified, moved to dissolve the injunction. On the hearing of the motion, the plaintiff claimed a right to introduce affidavits in addition to those on which the injunction was granted, on the ground that the verified answer was to be regarded as an affidavit. Harris, J., said, "The former practice of moving to dissolve an injunction upon bill and answer is in favor of a construction adverse to the plaintiffs, but I do not see how effect is to be given to this section without adopting the plaintiff's construction. The defendant's application must be regarded as an application made upon affidavit on the part of the defendant, and the plaintiff may introduce affidavits in opposition. b. In Hascall v. Madison University (1 Code Rep. N. S., 170), it was held, that on motion to dissolve an injunction, where the motion was founded on the complaint and verified answer, the plaintiff may oppose the motion by affidavits other than those used to obtain the injunction. This decision agrees with Minor v. Terry, (1 Code Rep. N. S. 384; 6 Pr. R., 208), and may be regarded as an exponent of the present practice. See note to section 225, p. 320. SECTION 227. C. CHAPTER IV. Attachment.* Property of foreign corporations, and of non-resident or absconding or concealed defendants, may be attached. 223. Warrant, by whom granted. 229. In what cases warrant may be granted. 230. Security on obtaining warrant. 231. Warrant, to whom directed, and what to require. 232. Mode of proceeding in executing warrant. 233. Proceeding in case of perishable property or vessels. 234. Interest in corporations or associations, liable to attachment. 235. Attachment, how executed on property incapable of manual deli- 236. Certificate of defendant's interest to be furnished by corporation. 238. When action to recover notes, &c., of defendant may be prosecuted 240. Discharge of attachment and return of property, or its proceeds, to 241. Undertaking on the part of the defendant. 242. When sheriff to return warrant and proceedings thereon. "The attachment law must be construed in the most liberal manner for the benefit of creditors." Houston v. Belcher, 12 Sme. & M., 514; Dandridge v. Stevens, ib. 723; Bryan v. Lashley, 13 ib. 284; Wheeler v. Stevens, ib. 623. d. The provisions of the code relating to attachments are applicable to one of several joint debtors, but do not authorize the seizure of the joint property of several § 227. Property of foreign corporations, and of non-resident or absconding or concealed defendants, may be attached. In an action for the recovery of money against a corporation created by or under the laws of any other State, govern defendants on an attachment against one. It is only the individual interest of that one that is liable to seizure. Stoutenburgh v. Vanderburgh, 7 Pr. R., 229. a. "Chapter 4 of title 7 of the code was introduced as one of the amendments of 1849, and is mainly a transcript from the revised statutes; the principal alterations being such as were proper to adapt it to other provisions of the code, and also to extend its application to suits against natural persons, in cases where jurisdiction of the defendant could not be obtained by personal service of a summons in this State. Per Sill, J., in Hulbert v. Hope Mutual Ins. Co., 4 Pr. R., 275; 3 Code Rep., 148. In Learned v. Vanderburg (7 Pr. R., 380), Harris, J., approved the decision in Hulbert v. Hope Mut. Ins. Co. (supra), and he adds-One essential difference is that the attachment against a foreign corporation issued under the provisions of the revised statutes, required the sheriff to attach all the estate, real and personal, of the corporation; while the warrant under the code requires the sheriff to attach all the property of the defendant, or so much thereof as may be sufficient to satisfy the plaintiff's demand. b. "A foreign corporation is not authorized either by the code or the revised statutes, to sue another foreign corporation in the courts of this State by attachment, unless the cause of action has arisen or the subject of the action is situate within this State. Western Bank v. City Bank of Columbus, 7 Pr. R. 238. C. "The issuing an attachment is the commencement of an action." Moore v. Thayer, 3 Code Rep., 176; 6 Pr. R., 47. d. "The attachment authorized by this chapter is a new and important remedy, which did not exist under the old system. Unlike the attachment against absent or absconding debtors under the revised statutes, which was for the benefit of all the creditors, and as to which the jurisdiction of the justices of this (the superior) court is not taken away, this attachment is for the benefit of the individual creditor. It is requisite, however, in order to its being issued in every case,- "1st. That there should be an action pending; by section 227 the attachment is authorized only in an action, and by section 99 an action is not commenced for any purpose until the complaint is verified [now not until the summons is served]; "2d. It must appear, among other things required by section 229, that the defendant is either a foreign corporation or not a resident of this State, or has departed therefrom with intent to defraud his creditors, or to avoid the service of a summODS, or keeps himself concealed therein, with a like intent." Mason, J., Fisher v. Curtis, 2 Sand. 660; 2 Code Rep., 62. e." Where a debtor whose place of residence is in this city (New York) absconds from the State or conceals himself within the same to avoid the service of the summons, then this court has jurisdiction to issue the attachment; because it can entertain the action. So also in the case of a non-resident debtor who may have been served with process in the city; because then this court has jurisdiction of the case by the actual service of the summons. But when a debtor is a non-resident, and the summons cannot be served on him, this (the superior) court cannot issue the attachment; because it cannot entertain the action." Ib. f. The conclusion to be drawn from the above remarks in connection with the amendments to sections 99 and 100 is, that in no case can an attachment issue until after the action is actually commenced, and that until the court acquires jurisdiction of the action it has no jurisdiction to issue the attachment. g. In the case of Fisher v. Curtis, supra, an application was made to a judge of the superior court for an attachment. The defendant was not a resident of the city and county of New York, and had not been served with the summons. The application was denied. |