Admitting that this bill shows such a case as
would authorize a court of equity to interpose its restraining powers, and prevent a sale of so much of the wheat as would be necessary to secure the complainant for the money advanced under the agreement, and admitting farther that the proof shows that Warner did advance to Trenchard three hundred and seventy dollars in good money as alleged in the bill, still the record fails to make out such a case as would justify this decree.
The agreement presupposes that the corn at eight cents per bushel will probably pay the sum of three hundred and seventy dollars and interest, and the lien upon the wheat is créated only upon the contingency that there should not be sufficient corn to pay it, and then for the balance only. Under the contract the corn must first be exhausted before Warner can have a right to go upon the wheat for the balance. The lien created upon the wheat is, therefore, contingent. Before this contingency can happen, so as to make the lien upon the wheat specific and absolute, an insufficiency of corn must be shown. The bill alleges a deficiency of com of one-third. The defendant’s answer, neither admits nor denies this portion of the bill. When an averment in a bill in chancery is not admitted, although it be not denied, it must be proved by the complainant, by at least one witness. De Wolf v. Long, 2 Gil. R. 679. A deficiency of corn being affirmative matter for the complainant to make out, before he can assert a specific lien upon the wheat, and there being no proof in the record what- ■ ever on the subject, and it not being admitted by the answer, the record fails to make out a case entitling the complainant to an injunction restraining Trenchard from selling his wheat.
But 1 am by no means satisfied that this record contains sufficient proof of the payment of the money as alleged in the bill. This is positively denied by the answer which is sworn to. All the evidence in the case is the notes of the testimony taken by the judge on the trial of an indictment against Warner, for passing counterfeit money to Trenchard, which, by the agreement of parties, were used as evidence in this suit, except the testimony of Trenchard, the prosecutor. These notes are so imperfect, especially in showing the chronological order of events spoken of by the witnesses, that I confess my utter inability to get any.clear idea of the transaction from them, except, that sometime in February, Warner paid to Trenchard three hundred and seventy dollars in what pmjDorted to be bank bills, three hundred and sixty of which, Trenchard, in the presence of Warner, paid to Henrichsen for cattle, all of which the latter swears were counterfeit. There is evidence tending to show that the bills which Henrichsen returned and which were counterfeit, were not the same bills, or at least a part of them, which Trenchard paid him, and there can he no doubt that, at one time at least, Trenchard thought such was the fact. Upon this point, I can really come to no satisfactory conclusion from the imperfect notes of the evidence which we have. If Henrichsen received good money and returned counterfeit, he is guilty, not only of fraud and counterfeiting but of perjury also. Although there is certainly a suspicion that this may be so, yet we cannot say that such a case is made out by this testimony so far as shown. The circumstances so far as shown favorable to Warner, are not sufficient, I think, to overcome the sworn answer of the defendant, and the positive oath of Henrichsen. The judge who tried the criminal case and whose notes we have as evidence in this suit, decided this case below; but if he obtained a clear view of the facts so as to enable him to arrive at a satisfactory conclusion in the case, he must have done so from what he heard of the evidence on that trial, when he took the notes, and not from the notes themselves; while we have no light upon the subject, but what is afforded by the latter. If this be so, then this record does_ not show the whole case upon which the court below decided. We must form our conclusions from such lights as the record affords. In a chancery case, that must show sufficient to sustain the decree, if it is to be sustained at all.
But irrespective of this question of the payment of the money, which principally engrossed attention in the court below, the record fails to make out an indispensable feature of the case as at first stated, so that in any event the decree must be reversed.
Decree reversed.