1. When a bill states a fact which is in the defendant's own knowledge, he must answer positively, and not as to his remembrance or belief.
2. But as to facts not within his knowledge, he must answer as to his information and belief, and not to his information and hearsay merely, without stating his belief.
3. When he answers he hath neither knowledge nor information, his belief is unimportant, and he need not state it. It is sufficient for him to state that he does not know, nor has he heard or been informed of the facts charged in the bill, save by the bill itself.
4. An answer made by a principal upon the information of his agent in the matters in contest, which information he avers he believes to be true, is clothed with all the authority and has all the effect of one made upon the personal knowledge of the defendant.
5. When a fact has been found by a verdict of the jury in a suit at law, the losing party can not, without some explanation, have the matter retried in a court of equity.
NASH, J.
The equity of the plaintiff's bill consists in this, that by the alteration of the note, after it had been delivered by Hillary and Thomas Radcliff, without their knowledge and consent they were discharged from all responsibility on it, and he was deprived of all recourse to them, upon being made to pay for it; and if the facts were so, unquestionably such would would be their effect. It would have been a gross fraud upon him, which would have given him a clear right to ask the (559) aid of a court of equity. Is this equity met and repelled by the answer? If so, the injunction can not stand. For, as the motion to dissolve must be heard upon the bill and answer where the latter fully meets the allegations of the former and denies them, as it is oath against oath, equity will not longer deprive the defendant of the benefit of his judgment at law.
He is still, however, at liberty, by continuing over his bill as an original, to pursue his equitable redress, and so enforce his equitable rights if he have any; but he is driven to his proofs, and can no longer rely upon his own oath. This principle is so familiar that it can not be necessary to cite authorities to sustain it. We think the answer does fully meet the allegations of the bill. It is true the defendants were not personally cognizant of the facts; they were not present when the bond was executed by Hillary and Thomas Radcliff, nor when it was executed by the plaintiff. They can not, therefore, of their own knowledge, say what was its condition at either of those periods. All they know upon the subject, they derive from their agent; they state information given by him and assert their belief in its truth, and aver the facts to be as stated by him; they therefore adopt his statement and make it theirs. It is a rule of chancery practice, that when a bill states a fact, which is in the defendant's own knowledge, he must answer positively, and not as to his remembrance or belief, but as to facts not within his knowledge, he must answer as to his information and belief, and not to his information or hearsay merely, without stating his belief. When he answers he has neither knowledge nor information, his belief is unimportant, and he need not state it. It is sufficient for him to state that he does not know, nor has he heard or been informed of the facts charged in the bill, save by the bill itself. Woods v. Morrell, 1 John Ch., 107; Cooper Eq. Pleading, 314; Morris v. Parker, 3 John Ch., 297; Hoffman Chancery, 265. And it is very proper the rule should be so; otherwise every one, acting or contracting through an agent, would in all matters of injunction be very awkwardly situated. The rules of chancery practice, then authorize the principal when called into court to (560) answer a bill to adopt the information of his agent and make his statement his own. It follows that such an answer must be clothed with all the authority, and have all the effect, of one made upon the personal knowledge of the defendant. According, then, to the answer filed in this case the bond in question was by Hillary Radcliff, one of the obligors, delivered to the agent Tollman, and, when so delivered, was precisely in the situation in which it was when the plaintiff executed it; and it is expressly and positively denied that any alteration, in any particular, was made in it after it came into the possession of Tollman. This denial in the answer is strengthened by some singular discrepancies in the bill. It is first alleged that after the said note was executed, a seal was attached to the name of Hillary Radcliff without the knowledge or consent of the said Hillary, and the name "George" stricken out, and the name "Alpress" added thereto. The bill then proceeds — "Yours orator further charges and alleges the truth to be, that previous to the erasure and insertion, in the Spring of 1840, the agent presented the note to your orator, at Asheville," etc., "your orator never for a moment supposed that a forgery had been previously committed on the said promissory note by the addition of a seal, and the erasing the name, as before set forth. There is in this statement a confusion and want of clearness sufficient to excite distrust and throw discredit on it. We are first told, that when the note was presented to the plaintiff in the Spring of 1840, there was no erasure or substitution; and then we are informed that, when he executed it, he had not the slightest idea a forgery had been committed on it by adding a seal, and by the erasure or substitution. In McFarland v. McDowell, 4 N.C. 15, the Court decided, that when the facts, on which the plaintiff's equity rests, are by the answer positively denied, or the truth of them is rendered doubtful, by the facts and circumstances set forth in the answer, and the defendants swear they have no knowledge of the facts set forth in the bill, and that they do not believe them, so that, upon the whole, the plaintiff's equity is rendered (561) doubtful, the injunction must be dissolved. Here are the material facts of the bill expressly denied, and the circumstances, as they are alleged to have occurred, set forth in the answer and doubts, to say the least, as to the truth of the allegations of the bill, excited not alone by the contradicting statements of the answer, but also by the contradictory averments of the plaintiff. According then to the rule in McFarland's case, the injunction must be dissolved. But again, the fact of the forgery, according to the plaintiff's own shewing, has been submitted to a jury in a trial at law, and the verdict negatived the charge; and this, although the plaintiff, produced two witnesses, according to his allegation, to show that the alterations were in the handwriting of the agent Tollman. The plaintiff, as far as we can see, acquiesced in the verdict, nor does he now complain of it, or give any explanation why the jury so found, whether from a want of testimony, or any error in point of law on the part of the presiding Judge. Without any explanation he comes into a court of equity and asks for a new trial. We think he is not entitled to it. peace v. Nailing, 16 N.C. 290. With respect to the insufficiency of the clocks, we do not consider any question upon that point as arising in this case. The bill is not framed with that view. It does not ask to have the contract rescinded, nor does it offer to return the clocks still on hand, or to account for those sold, nor are the proper parties, the purchasers of the clocks, before the Court. In truth, it is a question in which the plaintiff has no concern. He places himself solely upon the ground of the fraud charged to have been practiced on him, in procuring his execution of the bond.
The interlocutory order heretofore made in this case, dissolving the injunction, ought to be affirmed.
PER CURIAM. ORDERED TO BE CERTIFIED ACCORDINGLY.
Cited: Grantham v. Kennedy, 91 N.C. 154.
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