Opinion
(October Term, 1794.)
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 the fact, which the affidavit was intended to show, tried by a jury at the next term.
CATLETT CAMPBELL and his partners, merchants in Petersburg, recovered a judgment on debt in the Superior Court here last term, against Christmas and his partners; and since the last term the defendants filed their bill in equity and obtained an injunction. They stated in the bill that when they gave the bond Campbell promised not to sue them upon it, and that they were induced to confess the judgment by Mr. Tatom, the agent for Campbell Co., who promised them that if they would each pay their proportion of $500, on or before February then next, execution should be stayed for the residue till they could sue and recover the amount from their debtors. Campbell by his answer denied that he had promised not to sue upon the bond, as they had stated, and as to the promise of his agent, denied that he believed it to be true, being informed to the contrary by his agent, who he believed had given his true information; and he further stated in his answer that as to the said promise stated to be made by his said agent, that the agent, not being made a party to the bill, had no opportunity to answer, but that he had made his affidavit contradicting that part of the bill which related to his promise, and prayed that the same might be taken and received as part of his answer. This affidavit was accordingly appended to the answer, and fully denied the promise alleged in the bill to be made by him to the defendants at law.
E contra, the counsel for the defendant. (124)
Moore, for the defendants, insisted that this affidavit was ex parte, and could not be received as part of the answer.
The defendant here, it is true, has denied in positive terms that he 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 each pay his proportion of $500 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, not being present when this judgment was obtained, he could not positively deny it. Therefore it remains unnegatived, and the 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, and 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 he would recollect, and which for (126) want of such suggestion he might not remember. This we have decided over and over again; but we will make an order that the unnegatived 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 — Ex parte affidavits cannot be received to support an injunction. Leroy v. Dickerson, 4 N.C. 110.