Christmas v. Campbell , 2 N.C. 142 ( 1794 )

Per curiam,

Judge Ashe and Judge Williams

The Defendant itere, it is true, lias denied in positive terms that 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.