Ckanch, C. J.
The agreement (to levy execution upon the property of Merrill, immediately after the judgment,) is. averred in the bill, denied in the answer,' and averred by. G. Cloud in his deposition, to have been confessed by Mr. Wiley, the attorney-at-law of the defendant, since deceased. In general, if the [237]*237material averment of the bill be positively denied by the answer, and be proved by one witness only, the Court cannot decree against the answer. It is said to be only oath against oath, and there must be something to turn the scale. But slight circumstances of corroboration have been considered sufficient for that purpose.
The circumstances which are supposed to be sufficient to turn the scale in the present case are,
1st. That the answer of the bank is not on oathj but the bill is.
2d. That the complainant repeatedly urged the bank to issue the execution against Merrill.
3d. That Mr. Wiley was the attorney of the bank.
4th. That the bank knew that many suits against indorsers were, at that term, in jeopardy, in consequence of the then late decision of the Court respecting what were since called the 4th day protests.
5th. That Mr. Wiley informed Mr. Magruder, that he was instructed by the bank to adjust all such cases, and get judgments confessed, so as to prevent such defences being made; and that Mr. Magruder was requested by" Mr. Wiley, to call on several of the indorsers, and among others, the complainant, with a view to make such adjustment; and that he advised her to see Mr. Wiley, who, he assured her, was friendly to her, and would not advise her to do any thing against her interest.
6th. That there was much apprehension among the banks, at that time, that defendants who were indorsers, would become acquainted with the decision of the Court, and dispute their cases on that ground.
1. I do not know that it has ever been decided that the affidavit of a complainant to an injunction-bill, gives any weight to his cause upon the final hearing. It is required only as the ground of injunction, and, I believe, is never considered as evidence at the hearing, although the answer may not be upon oath. The reason why an answer in chancery, is evidence, is, I apprehend, not merely because it is upon oath, but because the complainant has required the defendant to answer, and has thereby made him a witness, and is bound to receive his answer as true as to those facts which he has called upon him to answer, unless the complainant can prove it to be false. If a defendant’s answer be not on oath, the' plaintiff, if he wishes to avail himself of that circumstance, must except to the answer on that ground. If he does not except, but files a general replication, I apprehend the answer, so far as it is responsive to the allegations of the bill, is as valid evidence for the defendant, as if it had been upon oath. If he calls upon a corporation aggregate to answer, he must receive the answer in the only way in which such a corporation can [238]*238answer, namely, by its common seal. In a moral view, perhaps, such an answer would not afford as strong a presumption of truth, as an answer upon oath, because it has not the same legal and religious sanction; but as it regards the complainant, it is to be taken as true, until disproved, because it is his own evidence, called for and produced by himself; and as such it must be regarded by the Court. The answer, therefore, having denied the agreement alleged in- the bill, it is incumbent upon the complainant in the present case, to prove it by at least one witness corroborated by other evidence.
2. The first circumstance supposed to. corroborate the testimony of G. Cloud, is, that the complainant frequently urged the bank to issue the execution against Merrill. The witnesses who testify to that fact, do not say that she urged it on the ground of an agreement, or that she ever informed the bank of the agreement. - Mr. English, the cashier, and Mr. Riggs, one of the directors, deny that they knew any thing of such an agreement. Mr. Renner, another of the directors, through whom the application of the complainant was made to the board, says nothing of the agreement, in his deposition taken by the complainant.
Mr. Riggs, says that the refusal to comply with the complainant’s request, was by a majority of the board; that one or two of the directors were in favor of it. If that was the case, and there had been such an agreement, it is natural 'to suppose that it would have been urged as a reason, to induce the board to issue the execution against Merrill. If it was not urged, there is strong ground to infer that it did not exist. Mr. Renner, who made the' application to the board, must have known it, if it existed; at least, it is strange if he did not. If there had been no such agreement, still it would have been natural and probable that the complainant would urge the bank to issue the execution against. Merrill, as he was the principal debtor. . Her doing so, therefore, without any allusion, whatever to such an agreement; does,not necessarily raise an inference, that such an agreement existed; nor can it be considered, as' a corroboration of G. Cloud’s testimony, on that point; on the contrary, the inference is clearly the other way, and instead of corroborating his testimony, tends,strongly to diminish its weight.
3. The circumstance of M\ Wiley’s being the attorney of the bank, can hardly be considered as corroborating the testimony of Mr. Cloud, because it is a fact not disputed. The fact to be corroborated, is the agreement.
4. It is supposed to be a corroborating circumstance, that at the time of the supposed agreement, the bank knew that many suits against indorsers were at that term, (the term in which [239]*239the judgment was confessed, namely, December term, 1817,) in jeopardy, in consequence of the then supposed recent decision of the court, that the demand of payment of a note, on the day after the third day of grace, was insufficient to charge the indorser; and that Mr. Wiley was instructed by the bank to adjust such cases, and get confessions of judgment from indors-ers, so as to prevent their making such defence; and that Mr. Magruder was requested by Mr. Wiley, to call on several of the indorsers, and among others the complainant, with a view to such adjustment, and that he advised her to see Mr. Wiley.
These facts depend upon the testimony of Mr. Magruder, who does not swear positively; he was sworn only to testify according to the best of his knowledge and belief; and it appears that he must have been mistaken as to dates, because the judgment against Mr. Garey was confessed in December term, 1817, and the decision of the Court which caused this alarm to the banks was not until the 11th of June, 1818, in the case of Beeding v. Pic, (2 Cranch, C. C. 152.) All the supposed corroboration, therefore, arising from the alarm of the bank at that decision, faüs, and leaves no consideration-for such a contract as is supposed to have been made, nor any such motive for Mr. Magruder’s calling on the complainant.
I do not see,' therefore, any evidence corroborating Mr. Cloud’s testimony. That testimony being thus unsupported as to the main fact, could not, if it were in itself unexceptionable, prevail against the answer.
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Ckanch, C. J.
The agreement (to levy execution upon the property of Merrill, immediately after the judgment,) is. averred in the bill, denied in the answer,' and averred by. G. Cloud in his deposition, to have been confessed by Mr. Wiley, the attorney-at-law of the defendant, since deceased. In general, if the [237]*237material averment of the bill be positively denied by the answer, and be proved by one witness only, the Court cannot decree against the answer. It is said to be only oath against oath, and there must be something to turn the scale. But slight circumstances of corroboration have been considered sufficient for that purpose.
The circumstances which are supposed to be sufficient to turn the scale in the present case are,
1st. That the answer of the bank is not on oathj but the bill is.
2d. That the complainant repeatedly urged the bank to issue the execution against Merrill.
3d. That Mr. Wiley was the attorney of the bank.
4th. That the bank knew that many suits against indorsers were, at that term, in jeopardy, in consequence of the then late decision of the Court respecting what were since called the 4th day protests.
5th. That Mr. Wiley informed Mr. Magruder, that he was instructed by the bank to adjust all such cases, and get judgments confessed, so as to prevent such defences being made; and that Mr. Magruder was requested by" Mr. Wiley, to call on several of the indorsers, and among others, the complainant, with a view to make such adjustment; and that he advised her to see Mr. Wiley, who, he assured her, was friendly to her, and would not advise her to do any thing against her interest.
6th. That there was much apprehension among the banks, at that time, that defendants who were indorsers, would become acquainted with the decision of the Court, and dispute their cases on that ground.
1. I do not know that it has ever been decided that the affidavit of a complainant to an injunction-bill, gives any weight to his cause upon the final hearing. It is required only as the ground of injunction, and, I believe, is never considered as evidence at the hearing, although the answer may not be upon oath. The reason why an answer in chancery, is evidence, is, I apprehend, not merely because it is upon oath, but because the complainant has required the defendant to answer, and has thereby made him a witness, and is bound to receive his answer as true as to those facts which he has called upon him to answer, unless the complainant can prove it to be false. If a defendant’s answer be not on oath, the' plaintiff, if he wishes to avail himself of that circumstance, must except to the answer on that ground. If he does not except, but files a general replication, I apprehend the answer, so far as it is responsive to the allegations of the bill, is as valid evidence for the defendant, as if it had been upon oath. If he calls upon a corporation aggregate to answer, he must receive the answer in the only way in which such a corporation can [238]*238answer, namely, by its common seal. In a moral view, perhaps, such an answer would not afford as strong a presumption of truth, as an answer upon oath, because it has not the same legal and religious sanction; but as it regards the complainant, it is to be taken as true, until disproved, because it is his own evidence, called for and produced by himself; and as such it must be regarded by the Court. The answer, therefore, having denied the agreement alleged in- the bill, it is incumbent upon the complainant in the present case, to prove it by at least one witness corroborated by other evidence.
2. The first circumstance supposed to. corroborate the testimony of G. Cloud, is, that the complainant frequently urged the bank to issue the execution against Merrill. The witnesses who testify to that fact, do not say that she urged it on the ground of an agreement, or that she ever informed the bank of the agreement. - Mr. English, the cashier, and Mr. Riggs, one of the directors, deny that they knew any thing of such an agreement. Mr. Renner, another of the directors, through whom the application of the complainant was made to the board, says nothing of the agreement, in his deposition taken by the complainant.
Mr. Riggs, says that the refusal to comply with the complainant’s request, was by a majority of the board; that one or two of the directors were in favor of it. If that was the case, and there had been such an agreement, it is natural 'to suppose that it would have been urged as a reason, to induce the board to issue the execution against Merrill. If it was not urged, there is strong ground to infer that it did not exist. Mr. Renner, who made the' application to the board, must have known it, if it existed; at least, it is strange if he did not. If there had been no such agreement, still it would have been natural and probable that the complainant would urge the bank to issue the execution against. Merrill, as he was the principal debtor. . Her doing so, therefore, without any allusion, whatever to such an agreement; does,not necessarily raise an inference, that such an agreement existed; nor can it be considered, as' a corroboration of G. Cloud’s testimony, on that point; on the contrary, the inference is clearly the other way, and instead of corroborating his testimony, tends,strongly to diminish its weight.
3. The circumstance of M\ Wiley’s being the attorney of the bank, can hardly be considered as corroborating the testimony of Mr. Cloud, because it is a fact not disputed. The fact to be corroborated, is the agreement.
4. It is supposed to be a corroborating circumstance, that at the time of the supposed agreement, the bank knew that many suits against indorsers were at that term, (the term in which [239]*239the judgment was confessed, namely, December term, 1817,) in jeopardy, in consequence of the then supposed recent decision of the court, that the demand of payment of a note, on the day after the third day of grace, was insufficient to charge the indorser; and that Mr. Wiley was instructed by the bank to adjust such cases, and get confessions of judgment from indors-ers, so as to prevent their making such defence; and that Mr. Magruder was requested by Mr. Wiley, to call on several of the indorsers, and among others the complainant, with a view to such adjustment, and that he advised her to see Mr. Wiley.
These facts depend upon the testimony of Mr. Magruder, who does not swear positively; he was sworn only to testify according to the best of his knowledge and belief; and it appears that he must have been mistaken as to dates, because the judgment against Mr. Garey was confessed in December term, 1817, and the decision of the Court which caused this alarm to the banks was not until the 11th of June, 1818, in the case of Beeding v. Pic, (2 Cranch, C. C. 152.) All the supposed corroboration, therefore, arising from the alarm of the bank at that decision, faüs, and leaves no consideration-for such a contract as is supposed to have been made, nor any such motive for Mr. Magruder’s calling on the complainant.
I do not see,' therefore, any evidence corroborating Mr. Cloud’s testimony. That testimony being thus unsupported as to the main fact, could not, if it were in itself unexceptionable, prevail against the answer.
But his deposition appears to be the testimony of a willing witness, answering to leading questions, without cross-examination, and his character wholly unknown to the court.' It consists only of the confessions of Mr^ Wiley, the attorney of the bank, in conversations with the complainant, at divers times, after the confession of the judgment.' He has not stated any circumstances of time or place, when and where he heard those conversations, except that they were between the years 1814 and 1820.
The conversation which he relies on,'was evidently after the confession of judgment, and after December term, 1817, and after the bank had refused to issue execution against Merrill. And he makes Mr. Wiley contradict himself, by admitting that it was in his power to have issued the execution at his will, and yet saying'the fault was not in him, but in the directors of the bank ; and assigning as a reason for not issuing it, that the directors would not suffer it to be issued. Mr.. Wiley died early in 1819. For these reasons, I cannot say'that the contract is sufficiently proved to authorize this Court to deprive the bank of the benefit of its judgment at law, or that it is unconscientious in the bank to enforce-it.
[240]*240The Court, however, as before stated, decreed a perpetual injunction; and the decree was affirmed by the Supreme Court, 5 Peters, 99.1