#### Christmas and others v. Campbell and others.

An affidavit of an agent, not a party in the suit, cannot be annexed to an answer to dissolve an injunction. But an order may be made to have (lie fact, which the affidavit was intended to show, tried by a jury at the next term.

Catlett Campbell and his partners, ..merchants in Pe-tersburg, recovered a judgment on|debt in the Superior Court Itere last term, against Christmas and his partners ; and since the last term, the Defendants filed their hill in equity, and obtained an injunction. They stated in the bill that when they gave the hond, Campbell promised not to sue them upon it, and that they were induced to confess the judgment hy Mr. Tatom, tito agent fo,r Campbell & Company ; who promised them, that if they *143would each pay their proportion of five hundred on or before February then next, execution should be stayed for the residue till they could sue and recover the amount, from thrirdebtors. Campbell by his answer, denied 1 hat he had promised not (o sue upon the bond as they had stated ; and as to the promise of his agent, denied that he believed it to be 1rue, being informed to the contrary by his agent, who lie believed had given him true information ; and he further stated in bis answer, that as to the said promise slated to he made by his said agent, that the agent not being made a party to the bill had no opportunity to answer, but that lie liad made his affidavit contradicting that part of the bill which related to ill's promise, and prayed that the same might be taken and received as pari of his answer. This affidavit was accordingly appended to the. answer, and fully denied the promise ailedged in (he bill to be made by him to the Defendants at law.

Moore for (he Defendants,

insisted that this affidavit was ex parte, and could not he received as part of the answer; and cited a case adjudged at Halifax, where a number of affidavits .were an next d to the answer tending 1o disprove the facts stated in the hill, and were rejected by the Court; and he insisted in like manner, that the affidavit annexed in the present case might not he read.

E contra

The counsel for the Defendant to this bill insisted, that the case at Halifax was not such an one as. ought to be received as a precedent; he remembered that case very well — that the objection there was taken by •Mr. Moore. — that there was not argument on the other side — and that it ought to be. considered as a case that passed sub sileniio. He said the objection now taken, of its being ex parte, was not a sound one, for the answer of the Defendant was ex parte — there was no cross examination, and the only security for its truth was bis being liable to prosecution if he swore untruly, and that vthere was the same security in the case of the affidavit —he that makes it, is aLo liable to be prosee 1 d if he swears untruly, injunctions may be granted upon affidavits taken exparte. I Eq. Ca. M. 285. s. 6. 2 Eq. Ca. Jib. 522. s. 2. 14. s. 2. El may be also continued upon affidavits against the answer, though (hat be full and deny all the equity of the bill. 3 Will. 255. In some cases, an injunction may be granted upon affidavit only without a bill,, or before it is filed. 3 Vera. 401. .8 Tía. M. 175. *144jn which case it was granted before bill filed, which un« doubtedly must have been upon affidavit; also, 2 Eq. Ca. M. 527. If then an injunction may be continued on affidavits contradicting the answer taken by the complainant ex parte, it would seem to follow that affidavits contradicting the bill may be taken ex parte to dissolve the, injunction, and this is the only use we wisii to make of the annexed affidavit; and it seems to be peculiarly proper in a case circumstanced like the present, where it. is impossible for the Defendant to give any positive answer to the whole of the bill, part of the matter charged therein having been transacted with his agent in his absence, and that agent not made a party. At this rate, any foreigner may be delayed of the fruits of a judgment recovered in our Courts ad infinitum; since they generally obtain their judgments by the agency of an attorney at law, or attorney in fact; the Defendant at law then has < nothing more to do, than to state an agreement like that stated in this bill, with the attorney for the Plaintiff, taking care not to make him a party, and as the Plaintiff at law, cannot in the nature of things say positively that the fact vvas not as stated, the injunction must be continued. Besides when the debate is about the continuance or dissolution .of an injunction, all that the Court can enquire of, is, whether there is enough to satisfy them appearing in the cause, to say, lita* the judgment at law was not unconscientious; and <>f this they may be as well satisfied by hearing the affidavits of others as the affidavits of the. Defendant himself. If the doctrine advanced on the other side he received here as the rule of a Court of equity, no injunction can ever be dissolved on the coming in of the answer, where the principal fact is alleged to be transacted or promised by the Defendant’s agent; and a bill in equity will come to operate almost as a bar of the demand of the Plaintiff at law — For instance, in the present case, can this injunction be dissolved at all but upon a heaiúng of the cause upon depositions being taken, and the canse regularly set-down and heard? And it is a. well known fact, that a* this time there are a great number of hills now in this Court, prior in time to the present hill, of tm years standing and upwards — the Plaintiff at law had better abandon his debt than be delayed and vexed so long.

Per curiam,

Judge Ashe and Judge Williams

The Defendant itere, it is true, lias denied in positive terms *145that ho agreed not to sue this bond; but as to the other part of the bill, stating an agreement by the agent that if the Defendants at law should eacli pay his proportion of 500 dollars before February then next, that execution should be then stayed until they could collect the residue of the debt from their debtors, this he has not positively denied; he says only, he does not believe any such agreement was made; and indeed, nor being present when this judgment was obtained, he could not positively deny it — therefore it remains unnegaiived, and (he injunction must be continued. The affidavit annexed, of the agent, Mr. Tatom, cannot be read, he not being a Defendant to this bill; and indeed he could not be made a Defendant, not being interested in the judgment. Had he been made a party, he might have disclaimed any interest or concern therein, arid the bill as to him would have been dismissed with costs ; and his affidavit cannot be received, because it was taken ex parte, and for want of cross examination may appear in a different dress now from what it would appear were he cross examined by the, complainants, who might suggest matters that lie would recollect, and which for want of such suggestion, he might not remember. This we have decided over and over again ; but we will make an order, that the uune-gatived fact shall be tried by a jury at the next term.— Let the injunction be continued, and make an order for the trial of this fact at the next term ; which'was done accordingly.

Note. — That ex parte affidavits carmot be received to support an injunction. Vide Leroy v. Dickinson and others, 1 Car. Law Rep.497.