Hutchins v. Hope

delivered the opinion of the court.

If the answer swears away or denies the equity stated in the bill, the injunction will be dissolved; but if the equity be admitted or is not denied, or if new matter is set up in the answer by way of avoidance of any material allegation in the bill, the injunction will be continued until the final hearing or further order.

In this case, one of the material allegations in the bill is, that in the settlement of the estate of Thomas Hope, made between the complainant, who was executor of said testator, and Hannah Hope, who was a legatee under the will of Thomas Hope, who assigned the notes mentioned in these proceedings to the respondent, that from inadvertence and mistake, he the said complainant over-paid the said Hannah Hope the sum of six hundred dollars.

The answer admits, that Mrs. Hope received the property mentioned in this allegation in the bill, but denies that it was any more than she was entitled to, and by way of avoidance of the same makes this averment: “ Mrs. Hope, as the respondent knows and avers, had intended to renounce all interest under the will, and take all that the law would allow her, and *257in order to induce her to change this determination, the complainant as executor and residuary legatee, did, as respondent alleges, offer and agree, that if she would stand to and abide by the will, she should have one third of all the personal estate of the testator, before payment of the debts and legacies.”

This agreement set up in the answer, is a distinct fact, set up in avoidance or discharge, and the answer alone will not support it. In such case the defence must be made out by proof. Ringgold vs. Ringgold, 1 Harr. and Gill, 81.

The plea of limitation was relied on in the argument as a sufficient ground to dissolve the injunction; but we think differently, and therefore affirm the Chancellor’s order, and remand the cause, that such further proceedings may be had therein as the nature of the case may require.

ORDER AFFIRMED AND CAUSE REMANDED.