1 Johns. Ch. 444 | New York Court of Chancery | 1815
The general rule is against the admission of affidavits in these cases, and the instances in which they have been admitted are special, and exceptions to the general rule. Lord Kenyon, when Master of the Rolls, appear^ to have doubted the correctness of the practice in any case. They have been admitted in cases of waste, and in cases analogous, resting on the same principle, and where irreparable mischief might ensue; and I am aware that partnership cases have been brought within this rule. In one of the cases cited, (2 Bro. 89.,) the affidavits sought to be read against the answer, were the original affidavits on which the injunction to stay waste had been founded, and which the defendant must have had an opportunity to have seen before his answer. In this case, the injunction was granted upon the filing of the bill, and the answer meets the charges; but if these affidavits are to he admitted, the defendant, on whom they must operate as a surprise, can have-no opportunity to meet them; for it is well understood in all the cases, that affidavits cannot he admitted in support of the answer in this stage of the cause ; and the defendant might be condemned, upon the strength of
N. B. The motion to dissolve the injunction was after-wards granted, on the ground that the answer was a full denial of the equity of the bill.
Vide Peacock v. Peacock, (16 Vesey, 49.,) where affidavits were admitted after answer, and in support of a motion for an injunction, in a co-partnership case.