Leroy v. Dickinson, 4 N.C. 497, 1 Car. L. Rep. 497 (1814)

April 1814 · Supreme Court of North Carolina

4 N.C. 497, 1 Car. L. Rep. 497

Leroy v. Dickinson and four others.

This was an appeal from a decree of the Court of Equity of Beaufort County. The answers of all the defendants, except that of Joel Dickinson, had been filed at the fall term, 1813, and the cause stood on replication and commissions. Leave was given to amend the answer of Marshal Dickinson, and the amended answer was made the foundation of a motion to dissolve the injunction. To repel this answer, the complainant moved for leave to read depositions filed in the office, which was refused by the Court; and, on hearing the answer, an order was made to dissolve the injunction for two thousand dollars. The only question decided by this Court was, whether the complainant ought to have been permitted to read the depositions.

The case was argued by Browne for the complainants, and Mordecai for the defendant.

Cameron, J.

delivered the opinion of the Court.

Although the usual practice in the Courts of Equity of this State, has been to exclude affidavits taken ex parte to support the merits of an injunction, we know of no adjudication which would exclude the reading of depositions taken regularly on notice given to the adverse party, after the injunction has been sustained, and the cause continued as an original, on a motion to dissolve the injunction by the introduction of the amended answer of the defendant. The distinction between the cases is so obvious, that it need only be remarked, that the reason for excluding them in the former case, does not apply to the latter. In the former, they are taken without notice, and ex parte. In the latter, they are taken on due notice, affording the adverse party an opportunity of a cross-examinatiOn.

We are of opinion, that the complainant was entitled to support the merits of his bill, by the depositions, regularly taken in the cause, on the motion of defendant to dissolve the Injunction on his amended answer.

Therefore, let the decree of dissolution be reversed, and the cause remanded, with leave to complainant to support his injunction by the depositions regularly taken between the parties.