ginally for want of answer. Upon the coming in of the answer, the defendant obtained the order nisi, which, in consequence of a quarrel between the plaintiff and his solicitor, was afterwards made absolute, without any opposition on his part. The defendant then commenced an action on the bond, and held the plaintiff to bail ; and now the plaintiff moved upon the answer for an injunction, or that the former injunction might stand revived.

1

Mr. Heald and Mr. Wakefield appeared for the motion.

Mr. Wetherell and Mr. Boteler opposed it.

For the motion, it was insisted, that the defendant, by her own showing, was ob ligee of the bond, without consideration; and that the admissions in the answer, coupled with the allegations to which she refused to make any answer, raised a case of strong suspicion against her.

Mr. Wetherell's argument was, that it was quite consistent with all that appeared upon the pleadings, that the bond might be a perfectly valid security, and therefore the contrary could not be presumed. It was not alleged, that, antecedently to this lady's acquaintance with the plaintiff, there was any taint upon her character. Supposing, then, her connexion with him to have been of the most intimate kind, how could the court assume, that the bond was not given under circumstances which the law would hold to constitute a valid consideration? If it had been given as præmium pudicitiæ, then it was given for a valid consideration. There were no circumstances of fraud or stratagem mixed up with the transaction, for all the allegations of deceit and contrivance were denied. The fact was simply thus-the defendant, a person of unblemished character, is introduced to the plaintiff, and, after living with him for a fortnight, he gives her a bond for a thousand pounds. That ought, probably, to be called an act of justice; but if it were considered merely an act of generosity, he knew of no decision by which the gift could be set aside.

Mr. Heald replied, that the defendant had not, in her answer, averred, as she might have done, that the bond was given her as præmium pudicitiæ, or pudoris. No consideration was stated for the bond, and,

in such a case, nothing ought to be presumed in favour of a defendant, who answered so little of the matter charged against her. Her denials, he contended, were negatives pregnant.

Vice Chancellor.-To enable a plaintiff to obtain an injunction upon the admissions in the defendant's answer, the rule is, not that the defendant must have confessed the whole of the plaintiff's case, but that he must have admitted enough to enable the judge to see that the matter ought to be investigated in a court of equity. Now, does not this lady, sparingly as she answers, admit enough to show that the transaction calls for further inquiry? She admits distinctly that this bond was executed as a provision for her; and the nature of her acquaintance with this gentleman appears sufficiently upon her answers, to justify the issuing of an injunction.

The case of the plaintiff is a very short one. On Saturday, the 10th of March, he met this young woman in the street; on that day she dined with him, and spent the evening in his company, and engaged to come to him again on the Tuesday following. She came to him on Tuesday, and remained in his house till the 26th of March. On the 24th he executed a bond for 1000l., ' and did so on the representations of the young lady, and a person calling herself her aunt, that, if he did not do so, she would quit the house.

Now, she admits that, in the month of March, the plaintiff promised to make a provision for her, and that he executed the bond on the 24th of March; but, she says, that she is not bound to answer whether she met him in the street-whether she resided in his house-whether she threatened to quit it unless he would execute the bond-and whether she did quit the house as soon as she got the bond. Then, the consideration is, do not the facts she admits, coupled with what she refuses to answer, make out a prima facie case for inquiry? My opinion is, that they do make out such a case; and, therefore, that an injunction ought to issue, the plaintiff undertaking to pay the money into court.

The order was made accordingly.

1823.

Nov. 24.

}

WHITEHOUSE . HICKMAN.

On a motion, after the coming in of the answer, for an injunction to restrain the defendant (the holder of a promissory note) from proceeding at law against the plaintiff (the maker of the note), the plaintiff will not be allowed to read affidavits, in order to prove circumstances of conduct and acts of a third party, (the original payee of the note,) which are necessary to found the equity of the plaintiff, and as to which the defendant, in his answer, neither admitting nor denying them, says that he can give no information.

The bill prayed, that it might be declared, that certain promissory notes had been obtained from the plaintiff, without consideration, and fraudulently, and were detained by the defendant, Hickman, contrary to good faith and equity; and that these notes might be delivered up to be cancelled; and that, in the mean time, Hickman might be restrained from proceeding upon them at law.

The case made by the bill was, that the notes were made by the plaintiff, Whitehouse, and given by him to Maullin, the payee, merely as an accommodation, and without any consideration; and that Hickman, the holder of them, obtained them without consideration, and with a full knowledge of the circumstances under which they were made by Whitehouse, and came into the possession of Maullin.

The defendant had put in three answers successively, which varied widely in the account they gave of the transactions, and were, indeed, altogether inconsistent Maullin had become bankrupt; the plaintiff was one of his assignees; the other assignee was one of the defendants.

Upon these answers, the plaintiff moved to revive the injunction.

Mr. Heald and Mr. Wakefield appeared for the plaintiff.

Mr. Bell and Mr. Beames for the defendant, Hickman.

As to the most important of the circumstances, on which the equity of the bill rested, such as, that the notes were given to Maullin for his accommodation merely, and without consideration-the defendant neither admitted them nor denied them;

stating, that he had no knowledge or information concerning them.

Mr. Heald offered to read affidavits as. to the allegations of the bill, which were neither admitted nor denied by the answer. Mr. Bell insisted that affidavits could not be read against the answer.

Mr. Heald replied, that he did not read them against the answer, but merely as to points on which the answer gave no information; and, in doing so, he contended, he did not infringe the rule of the court. He relied upon Taggart v. Hewlett,* where, in support of an injunction, letters set forth in the bill, and not admitted by the answer, were allowed to be verified by affidavit. Morgan v. Goodet was also an authority in his favour, for there the Lord Chancellor considered the admissibility or non-admissibility of affidavits as depending on the single fact, "how far the allegations, proposed to be substan tiated by affidavit, had or had not been met by a denial in the answer of the defendants." The same doctrine was held by his Lordship in a still more recent case. In Jefferys v. Smith, his Lordship says, "The rule is, that where the injunction is not obtained in affidavits filed with the bill, but is moved for after the answer has come in, you cannot read the affidavits in contradiction to the answer; but you may in support of a particular allegation not noticed in the answer, if it be material."

Vice Chancellor.-It is impossible that the Lord Chancellor could have used the language ascribed to him in Jefferys v. Smith. He never could have said, not noticed in the answer:" whatever words he used, he must have spoken only of what was neither admitted nor denied.

Taggart v. Hewlett is the only one of these cases which can be regarded as an authority on this point; for in it alone were the affidavits actually admitted to be read. In the others, the affidavits were finally not admitted or not relied on; and these vague dicta, ascribed to the Lord Chancellor, but clearly not having in any way formed the ground of his decision, must have been misunderstood by the reporters.

Having regard, then, to the case of Tag* 1 Merivale, 499. + 3 Ibid. 10.

1 Jac. & Walk. 300.

gart v. Hewlett, the utmost length that the authorities have gone is this:§ If the equity of a plaintiff depends on an instrument signed by a testator, the court will not permit that equity to be defeated, because the executor does not admit the instrument to be signed by the testator; and it will permit the instrument so alleged, and not denied to have been signed by the deceased, to be verified and authenticated by affidavit. Beyond that case, there is no authority for the admission of affidavits in support of an injunction, moved for on the defendant's answer; and general reasoning is of no avail, where decision and practice are the other way.

I may admit, that, if a bill stated a fact in the conduct of a testator, of which the executor, being defendant, said, in his answer, that he did not know and could not tell any thing-the reasoning of the Lord Chancellor would lead him to this conclu

sion, that he ought to permit the plaintiff

to read affidavits of that fact. In such a case, the only parties are the plaintiff and the executor; and it is the conduct of the testator, whom the executor represents, which becomes the subject of affidavit.

The present case is under circumstances totally different. Here the plaintiff says to one of the defendants,-" You pretend to hold my promissory note in part satisfaction of a debt claimed to be due to you from the payee of the note; that payee, however, had himself no right to payment, for the note was given merely for his accommodation; and you received it under such circumstances, that you can have, as against me, no better right to payment than he had." Thus two points are to be established; first, that the payee had no right to payment; for, if he had such a right, then the defendant, whether he did or did not give a consideration for the instrument, would likewise be entitled to recover; secondly, that the defendant be

came the holder of the note under such circumstances as are alleged. The fact, therefore, to which the plaintiff proposes to read affidavits, is one which involves not only the right of the defendant, Hickman, but the right of those who represent Maul

§ See the former cases connected with this subject collected in 1 Swanston, 254, in the note upon the case of Smythe v. Smythe.

lin's estate of those who, though parties to the suit, are not parties to this motion: and I am called upon to admit affidavits with respect to acts, which will affect the interests of another party besides him, against whom, and on whose answer, the injunction is moved for. To do so would be to forget all principle, and go beyond all decision.

Mr. Heald suggested, that the circumstances of the case were very peculiar. The plaintiff being himself one of the assignees of the estate of Maullin, it was impossible for him to move for an injunction against both Hickman and the assignees. Should he not, therefore, be allowed to read affidavits, even though they should affect the estate of Maullin, since his assignees could not have been made parties to the motion? rights might be touched by the affidavits, The circumstance, that a party, whose was not before the court on the motion, ought to be no objection, when it was impossible that he could be present upon it.

Vice Chancellor.-Here affidavits are proposed to be read for the purpose of by the defendant, but acts of a third party proving, not acts of a testator represented not represented by the defendant, and affecting the rights of that third party, though the motion is not made against

him. The combination of circumstances is so singular, that this case might form an exception, if the question were to turn only on the ground, that the interests of those, who are not parties to the motion, may be affected by the matter which the affidavits are read to prove. It is therefore necessary to decide the general principle of the rule.

Whether the court grants or refuses an merits of the cause; for if the plaintiff sucinjunction, is immaterial to the ultimate ceeds on the final decree, he will have the tained, or payment made. The refusal to same relief as if no judgment had been obinterfere cannot destroy the right of the plaintiff, and interference might destroy that of the defendant. For these reasons, the court has declared, that it will not

grant an injunction upon the answer, unless in the answer there be clearly confessed a case for equitable interference.

It necessarily follows, that equity confessed in the answer, means, that the court is to look only to the answer, for the purpose of ascertaining the plaintiff's title to the injunction.

A distinction has been taken in the case of Taggart v. Hewlett; and, so far as that. decision goes, the law of the court is to be considered as settled. In that case, a stranger was plaintiff; an executor, who was proceeding at law upon a promissory note given to his testator, was defendant; and the plaintiff's equity depended upon certain letters, written and signed by the testator, which were set forth in the bill. The defendant, in his answer, stated, that he did not know whether the testator had or had not written these letters. There the court permitted an affidavit to be read, in order to prove that those instruments which spoke for themselves, and concerning which the executor had said that he could tell nothing, were signed by the testator.

That exception cannot warrant the exception now contended for. What this plaintiff insists upon would destroy the rule that, after answer, an injunction must

proceed upon merits confessed in the answer. For if the answer confesses no merits, and yet the plaintiff is to have an injunction upon affidavits of facts aliunde, which, if true, would give him an equity, not even a shadow of the rule remains. The injunction no longer proceeds upon the answer, but upon allegations altogether extraneous to it. Now, I am of opinion, that there is no authority that goes to that length-nothing that would justify me in permitting affidavits to be read with respect to circumstances of conduct, which are not the acts of the party against whom the injunction is asked, or those whom he represents. The language, I admit, which is used in some of the cited cases, deviates somewhat from the principle which I have laid down; but I cannot rely on the loose dicta of reporters, not supported by decision, as faithfully expressing the opinion of the Lord Chancellor.

The affidavits were not read;, and as the answers, though full of inconsistencies and contradictions, did not admit a case which gave the plaintiff any equity,

The injunction was refused.