568 BILLINGSLEA v. GILBERT.

writing by himself or his solicitor; or it must be shewn as a neces-
sary inference from some act of his which clearly implies, that
he knew a paper purporting to be an answer, not sworn to, had
been filed. As in this case, if the plaintiff had appeared on the
notice of motion to dissolve the injunction and opposed it, without
objecting to the answer on account of its not having been sworn
to, he would have been precluded from making such an objection
at any time thereafter; because of the manifest waiver of his
right to have an answer on oath. But this defendant did not
appear in opposition to the motion to dissolve the injunction; and
it has not been shewn that he ever, either expressly or impliedly,
consented to receive the defendant's answer to his bill without its
being verified by an oath.

At the time when the notice of the motion to dissolve the injunc-
tion was entered on the docket, and, from that time until it was"
made absolute, it appears, that the plaintiff was in a state of
health, which rendered it at least doubtful, whether he could have
bound himself by any consent in relation to this suit; or have
attended to it with that judgment and discretion which men usually
pay, and ought to be permitted to bestow upon their own
affairs, (a) Therefore upon consideration of all the circumstances,
I am of opinion, that the dissolution of the injunction was irre-
gularly and improperly obtained. The suit having abated after
that time by the death of the plaintiff, the docket entry, that it
was dismissed by order of the complainant's solicitor, is manifestly
erroneous; because there was then, in fact, no such suit depending
which could have been so dismissed. But, even if there had been
a suit depending, a general dismissal, without saying any thing
of the injunction, would not have amounted to a dissolution of it;
nor would the death of either party, by which the suit became
abated, operate as a dissolution of the injunction.(b)

Whereupon it is ordered, that the injunction heretofore granted
be and the same is hereby revived and reestablished in full force until
further order. And the defendant, the petitioner, or the legal rep-
resentatives of the late plaintiff upon whom his interest in the suit
has devolved, are hereby permitted, without prejudice from this order
or any proceedings heretofore had in this suit, either to revive the

—-————————————————————————————————————
(a) Kemp v. Squire, 1 Ves. 206.—(b) Griffith v. Bronaugh, ante, 547.