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read for the purpose of discrediting the answer. It Cause, is therefore, in a circuitous way, destroying the rule solving. of this court (a).”
It will be found that there is one exception to this rule, if the doctrine stated at the bar, in Whitworth v. Davis (b), and alluded to in a former page (c), is correct, viz. that to obtain an injunction against assignees, the bankrupt may be made a party, and his answer, though it cannot be read against the assignees at the hearing, may be read against them in support of the injunction. But this, as has been already noticed, seems extremely doubtful.
Where a defendant refers by his answer to the answer of a co-defendant, it may be read against him upon a motion for an injunction (d).
(a) Clapham v. White, 8 Ves. 35.
Of continuing, dissolving, and reviving Injunctions to
stay Proceedings at Law, and of the Effect of Amendment and Abatement.
WHERE the merits of the plaintiff's bill have been so far confessed by the answer, as to render it proper for the court to interpose, the injunction already obtained is continued to the hearing. But an injunction is never continued to the hearing as a matter of course. It was in one case contended before Lord Hardwicke, that if there is such a doubt, that the court may, at the hearing, decree either the one way or the other, it is a reason to continue the injunction till the hearing. His lordship, however, overruled this argument without any hesita
tion (a). Payment of There are many cases, however, in which the money into court where court will only continue the injunction, upon the verdict, or condition of the plaintiff paying a certain sum of award, or
money into court; as for instance, where there has sworn due been a verdict at law (6), or an award (c) for a sum by the answer.
of money, or where the defendant has sworn by his answer (d) that a sum of money is due to him.
The old practice in these cases was, that the court
(a) Potter v. Chapman, Amb. 98.
dissolved the injunction, or refused it where not Continuing already obtained, unless the defendant gave a judg
Injunction. ment at law for the money sworn due, and a release of errors (a); though in one case Lord Keeper North is represented as objecting to this as not sufficiently beneficial to the defendant, since, notwithstanding the release of errors, the plaintiff might bring his writ of error, and put the defendant to plead his release, and so cause delay (6). The usual mode, however, at present is, to order the money to be paid into court, for which reasonable time will be given, according to the greatness of the sum, or the distance of the party (c)... This, however, will not be done where there is matter confessed in the answer suf. ficient for a total relief (d): and in one case, where an executor by his answer swore a certain sum to be due, yet the court, upon affidavit of strangers to the suit, continued the injunction without ordering the money to be brought into court, because there appeared reason to doubt whether it was actually due ; and the executor, it was said, is not privy to the transactions of the testator (e): and so it was said it would have been if by writing, or any other matter shown in court, it might seem doubtful whether the money were unpaid.
In general this practice is confined to cases where the money has either been found due by verdict, or award, or sworn to be so by the answer. In a
(a) Wy. Prac. Reg. 240. 242.
case in the Exchequer, the plaintiff, an orange merchant, agreed to purchase of the defendant, a planter of fruit for exportation at St. Michael's, 2000 boxes of oranges at the market price; and in consequence a cargo of 850 boxes were sent from thence to London, consigned to the plaintiff. On receipt of the invoice, the plaintiff found that the defendant had charged for the cargo at the rate of 24s. per box, the current price in the island being, as stated by the plaintiff, only 15s. per box; and he therefore refused to accept the defendant's bill for the amount (£1020), of which he gave notice to the defendant's agents in London, whom he requested to take the cargo, tendering them the bill of lading, or the amount at 158. per box. The agents having refused either to receive the oranges or the reduced price, the plaintiff gave them notice, that he would take the oranges to prevent their total loss, without prejudice. In the mean time the defendant brought an action to recover the whole amount, and the plaintiff having obtained an injunction, a motion was made that he might be ordered to bring into court the sum of
£1020, or such other sum as the court should think proper. It was submitted, that as the plaintiff had taken the fruit, and had obtained an injunction, which would prevent the defendant from recovering the value, whatever that might be, for some time at least, he ought to pay into court, for the security of the defendant, the sum charged for the goods, or at least so much as he had himself by his bill admitted the goods to be worth, and which he had offered to pay for the cargo: and it was contended that this admission and offer, the plaintiff having possession
of the goods, placed him in the same situation as if Continuing he had recovered a verdict at law, when he would injunct have been obliged to have paid the money into court; and it was said that the inconvenience would be no more than he would have been put to in that case: the court however refused the motion with costs (a).
In the following case, however, an extension was, from peculiar circumstances, made of the general rule. The plaintiffs, seventy-two in number, who were underwriters, had filed a bill to furnish themselves with defences to actions brought against them on certain policies of insurance, alleging fraud in the assured. Four of the causes had been set down for trial, and in consequence of a mistake in the defendant's attorney, had been tried, and verdicts had been obtained in them, for the defendants in equity. A number of the plaintiffs then paid into the hands of certain persons named in an agreement signed by them, the amount of their several subscriptions, in trust, to be applied in satisfaction of whatever judgment was pronounced by the court of law. An injunction having been afterwards obtained for want of the answer of one of the defendants, a motion was made that the injunction might be dissolved, or that such of the plaintiffs as had not deposited the money claimed on the losses, subject to the deed of trust, should pay that money into court within fourteen days, to abide the event of the actions at law, otherwise the injunction to be dis
(a) Parnell v. Nesbitt, 2 Price, 150.