Conolly v. Riley

Cochran, J., delivered the opinion of this Court. The appellants insist upon a reversal of the order granting an injunction in this case, on the alleged ground of insufficiency in the allegations of the bill, and for the further reason that the oath verifying the statements of the bill, does not affirmatively appear to have been administered by a person qualified by the laws of this State to administer an oath in such cases. A careful examination of the bill, which, if properly verified, must be taken as true for the purposes of this appeal, has satisfied us that the objections made to it are not well founded. The appellees were bound to exhibit with their bill such evidence of their claim as would satisfy the Court of their right to proceed in that mode to obtain relief, but full proof of it was not necessary.

The copy of the docket entries exhibited with the bill shows, as the bill states, that they had obtained a judgment against Conolly, and although it would not be received as full and conclusive proof of the existence and amount of the debt, yet, according to the usual course of practice, the Court was at liberty to treat it as sufficient for the preliminary purposes of the bill. The rule applicable to such cases, as stated in the Union Bank vs. Ellicott, 8 G. & J., 321 , is, that “ strong'prim,a facie evidence of the facts on which the complainant’s equity rests, must be presented to the Court to induce its action.” Under the ⁴¹⁸ circumstances appearing here, we think this exhibit of the docket entries was evidence of that character, and sufficient to satisfy the requirements of the rule referred to. The bill formally alleges that Conolly, fraudulently combining with McCarthy to prevent the appellees from obtaining satisfaction of their judgment, executed their bill of sale of the stock in trade, goods and chattels ■ in the store and dwelling No. 22 South Sharp street, to McCarthy for a pretended consideration of $625.90, and that if any part of this consideration was paid, the bill of sale was, nevertheless, not executed in good faith, but was a device to cheat the appellees and prevent them from obtaining payment of their debt. It also alleges that Conolly, notwithstanding the bill of sale, retained possession of the property mentioned in it; that he continued to use and dispose of it as his own, and appropriate the proceeds to his own use; and further, that the appellees were unable to discover any property belonging to Conolly other than that mentioned in the bill of sale.

These allegations, we think, were sufficient to authorize the order for an injunction. The fraudulent character of the bill of sale as against the appellees, is clearly and specifically charged; and the allegation that Conolly remained in possession of the property and continued to use and dispose of it as his own, must be regarded as a sufficient statement of the facts upon which to found the allegations of fraud in the bill of sale. The allegation that Conolly used this property as his own and that no other property belonging to him could be discovered, amounts to an averment that the property mentioned in the bill of sale was his, and that the appellees were without remedy, unless the property so held by him could be reached and made liable for the payment of their debt. An allegation that the property of a debtor is