
    DAVID T. AIRS and others; against JAMES BILLOPS and wife.
    
    "Where the only person who ought to have been made a party defendant in a bill, was named as suoli — an injunction prayed — a fiat made and an injunction ordered and issued against him, in which fiat a copy of the bill' and a subpccna wore ordered to issue, which was done, and the defendant came in and answered, and moved for the dissolution of the injunction,, which was dissolved, and the bill stood over, and after replication, commission and proofs, the cause was set down for hearing, and sent to this Court, it was Held, to be too late to move to dismiss the bill on the ground that there was no prayer for process to bring in the defendant.
    Where a cause is before the Court for a final decree, although the bill prays, for a special injunction, it must be heard upon bill, answer, replication and and proofs like any other cause.
    A bill can only be read as an affidavit, on. a motion to dissolve ail- injunction.
    This Court will not restrain the owner of a determinable estate in the enjoyment of his rights, on proof of an isolated conversation between him and the ulterior claimant, in which the former under the excitement of spirits, and of an angry quarrel, made a threat to run the property off and defeat the expectancy-
    Cause-transmitted from the Court of Equity of Washington County.
    Under the will of David Airs, a negro slave, named Henry, was limited to the defendant Ellen, upon a contingency that,, if she should die without leaving a child, the property in the said slave should go over to the surviving brothers and sisters.
    The bill charges that the plaintiffs, David T. Airs, and Edward W. and Olarkie, the wife of the plaintiff Waters, are three of the children of David, the testator; and, as such, are-entitled to the remainder in the said slave on the happening, of the contingency aforesaid. They allege that the defendant "Ellen has no child, and is now about fifty-two years old, and the defendant Janies, her husband,.is older than she, and that there is now little probability that she will ever have issue ; that the said James is insolvent,, except as to the slave in question, and that he is very intemperate in the use of spirituous liquor. They allege that the defendant James intends to run. the said, slave beyond, the limits of the State, or to sell him ■with an intention that he may be so run off, and that being thus insolvent, there is great danger of their losing the benefit of their contingent property in this slave. They allege that the defendant James has frequently declared his purpose of so running off the said slave, and of selling him that he may be run off. They allege that the said James so declared to H. II. Watters, Thomas S. Johnson and A. S. Watters, and they call upon the defendants to answer specifically to these allegations. They pray for a writ of sequestration and injunction, to prevent the said James from running off the slave in question, and from making sale thereof.
    The defendant James denies that he has ever made any threats to run off the slave Henry, or to sell him with the purpose of his being run off, or for the purpose of jeopardising the contingent rights of the plaintiffs. He admits that he has veiy little ¡oroperty, and that there is little prospect that his wife will bear a child. He denies in general terms that he has ever declared his purpose to be to run off the slaves, or to sell them for the purpose of their being run off. He says he has endeavored to sell his interest in this slave to divers persons, and insists that he has a right to do so. No response is made in the answer to the special interrogatories propounded in the bill. There were replication and proofs.
    The only testimony filed by the plaintiffs, in direct proof of .the allegations of the plaintiffs bill, is that contained in the deposition of II. H. DamnpoH.
    
    “ On the 26th of December, Mr. Billops said to Mr. Watters, at my store, in Martin county, that he had never done a mean act, but he meant to do one now; that he meant to sell Henry, and send him so far, that he should never be any benefit to David Air's or his children, or his children’s children. Said Watters then asked him if he intended to sell him out of the State; Billops replied that he did if he did not get one hundred dollars for him; that Gray Griffin had offered him a few days previous, nine hundred dollars for the boy, but should sell him out of the State, and spend the money, if he "had to drink it up; that a few days afterwards, he heard a similar conversation between the same parties in which similar language was used, and very abuseful language towards David Airs by Mr. Billops. Mr. B. commenced these conversations, as I have said, without any thing having been previously said on the subject. Mr. B. was not, in my opinion, drunk at the time of these conversations. I have never heard or known him offer the boy for sale.”
    The witness was subsequently re-called and interrogated whether he was “ sufficiently acquainted with Billops to know when he is drunk and when sober,” and whether he was drunk or sober on the occasions referred to by him in his former examination.
    To which he answered, that he had known him for about 18 years, and thinks he knows when he is sober and when drunk, and that he considered him sober on the occasion mentioned.
    The cause being set down for hearing on the bill, answer, proofs, and exhibit, was sent up by consent.
    
      Meath and E. W. Jones, for the plaintiffs.
    Smith, for the defendants.
   Pkarson, J.

On the opening of the cause, the defendants* counsel moved to dismiss the bill on the ground that the suit had never been properly instituted, for that the bill was fatally defective in this: It has no prayer for process to compel the defendant to appear and answer, which he contended was an indispensable prerequisite to the institution of the suit. — - For this position, Hoyt v. Moore, 4 Ire. Eq. Rep., 175, was relied on. That case is explained and commented upon in Williams v. Burnett, Busb. Eq. 209, and it is sufficient to say it was put upon its peculiar circumstances, and the exceeding defectiveness of the bill in many particulars, and cannot be made a precedent. In the present bill, the only person who ought to have been named a defendant, is named as such; an injunction is prayed against him; the flat directs not only the injunction, but a copy and subpoena to issue to him, which accordingly are issued, and executed in obedience thereto. He appears at the return term; files his answer; upon his motion the injunction is dissolved; replication and proofs are taken ; the cause is set down for hearing and sent to this Court for trial. The mere statement is enough to show that it is now too late to say the cause has never been constituted in Court. If a party will accept service, there is no necessity for process, or for a prayer for process, its only purpose being to compel the defendant to appear and put in an answer..

The cause is now before us for a final decree, and although it seeks for a special injunction and sequestration, it is to be-heard upon bill, answer, replication and proofs, like any other cause. In the argument, the counsel on both sides seem to-suppose that because a special injunction is prayed, the bill is-to be treated as an affidavit in behalf of the plaintiffs. That rule is not applicable to this stage of the proceedings, but is confined to the hearing on a motion to dissolve the injunction. It rests on the ground, that at that stage of the cause, the plaintiff has had no opportunity of taking proofs in support of his allegations, and as the injury would be irreparable, the result of the motion ought not to depend solely upon the-oath of the defendant. The plaintiff has now completed his-proofs ; so, the reason for considering-the bill otherwise than as a mere statement of the grounds on which he puts his equity has ceased, and the- question is, do the proofs and the admissions contained in the answer, establish the allegations of the bill, giving proper weight to any responsive denial ?

The plaintiff seeks to have the slave of the defendant sequestered, whereby the rights of ownership will be essentially restricted, and rests his equity on the- ground that he fears the defendant will run the slave off to parts unknown, or sell him with that intent; and in support of this position the bill alleges that the- defendant is insolvent; the contingency of his wife’s bearing a child is very remote, and that he has “ repeatedly stated his intention of running the negro off and making: sale.” In reference to the last allegation, a particular interrogatory is put as- to the threats- to this effect, made to several different individuals, who are named.. The answer admits th.e first two allegations, but the last is expressly denied. No response, however, is made to the special interrogatories.

The only evidence which the plaintiffs are able to produce, having a tendency to support this allegation, is the testimony •of Davenport, in regard to a conversation which took place in his presence, between the defendant and IT. II. Watters, ■and was repeated in a few-days. The special interrogatories not being responded to, this fact must be taken as sufficiently proved, although it rests upon the testimony of a single witness, notwithstanding the general denial in the answer; and the case is narrowed to this : Does the fact of this conversation establish the plaintiffs’ equity, and support the allegation of the bill ?

It is obvious, that at the time of the conversation, the defendant was either drunk, or so highly excited in a quarrel, as to repel any inference of a deliberate purpose, and although, connecting it with the general allegations of the bill, treated as an affidavit, it may have been .sufficient in a prior stage of the cause, to entitle the plaintiffs'to have the property secured, pending the suit, so as to give an opportunity for a full investigation, yet, after that investigation has been made, and the cause comes on to be finally disposed of, and the result is, to show that this conversation is the only proof that the plaintiffs are able to offer in support of their allegation.., we are forced to declare that the allegation is not proven, and that the plaintiffs have failed to establish an equity to interfere with the rights of the defendant to the enjoyment of his property.; which consists not merely in the reception of the profits, or hire, but in the right to sell his estate in the slave, provided he does not sell with a fraudulent intent to defeat the ulterior interest. If the bill was sustained upon proof of this isolated conversation, those having future interests would be greatly encouraged, upon the slightest pretext, to embarrass the owmers of determinable estates, particularly where they happened to own but little other property, by forcing them to give security for its forthcoming, or to sell, at an under value, to some one who is able to give security»

The bill must be dismissed, but we do not give the defendant costs. His unguarded conversation with one of the plaintiffs, gave them a plausible pretext for the investigation.

Per Curiam. Pill dismissed.  