doctrine, that the injunction was gone of course upon Amendment. the bill's being amended: that it might be amended for various purposes not connected with the injunction, which was only one head of relief: that amending the bill was admitting the answer to be full, and that exceptions would not lie to it; but that it did not therefore follow, that enough might not be discovered or admitted to support the injunction. Lord Bathurst was influenced by these arguments, and accordingly determined that the injunction did not drop by the amendment. In a case also before Sir J. Jekyll (a), the fact of the plaintiff having amended the bill, seems not to have been considered, as an objection to the continuance of the injunction. These decisions have, however, since been overruled, and it is now well understood that an injunction drops of course upon the plaintiff's amending the bill (b).

judice.

It has, in consequence of this doctrine, become Motion for usual for the plaintiff, in cases where it is expedient amend withleave to to amend, to move for leave to amend without prejudice out preto the injunction (c); this will not only be granted, but occasionally even, re-amendment has been permitted (d). The court, however, requires it to be clearly shown by affidavit, that the plaintiff had no knowledge of the facts proposed to be stated in the amendment, so as to have been able to bring them

(a) Lord Delvin v. Smyth, Mose. 204.

(b) Bliss v. Boscawen, 2 V. & B. 102. (c) Vesey v. Wilks, 3 Madd. 475.

(d) Sharp v. Ashton, 3 V. & B. 144. Mair v. Thelusson, ib. 145. n.

Amendment. sooner upon the record: the doctrine is thus stated in a recent case by Lord Eldon (a). "The principle requiring the case for the injunction to be put upon the record immediately, is, that the party, the prosecution of whose demand at law is to be delayed by the injunction, shall be delayed as short a time as can be consistent with justice; but that principle is not controverted, where a plaintiff is not informed that an equity exists, which would entitle him to relief; no blame can attach upon him for not putting it upon the record until he knows it; but as soon as he knows it, he must put it on the record. In the case cited (b), I think, the information was obtained not from the record, but aliunde: it is not material for this purpose how the plaintiff procures the information, even though unduly obtained; but if he gets it from the answer, the court must know from the bill and answer, that he cannot have as much benefit as if he had asked farther questions. In that case, therefore, the court required to know what were the proposed amendments, whether they were material, and if material, to have ascertained by clear and positive affidavit that they related to facts of which the plaintiff had not a knowledge, enabling him to bring that case upon the record sooner. these facts must be substantiated."

Costs.

All

It was generally understood that this motion was granted upon payment of 20s. costs (c); but in one

(a) 3 V. & B. 148.

(b) Mair v. Thelusson, sup.
(c) Sharp v. Ashton, sup.

of the cases, probably from the particular circum- Amendment. stances, the court appears to have directed that it should be on payment of full costs (a).

This motion for liberty to amend without pre- Before anjudice to the injunction, is generally made after swer. the injunction has been continued on the merits (b). However, in some cases it will be granted before the answer has been put in; as in the case of Mair v. Thelusson before alluded to, the defendant having obtained three weeks further time to put in his answer, upon the special ground, that his solicitor having but recently come into the cause, had not sufficient time to prepare the answer, the plaintiff obtained an order that he should have a week to amend the bill, and that the defendant should answer the amended bill within the three weeks. In the case of Sharp v. Ashton, the answer had been referred for impertinence, and the impertinence being expunged, the plaintiff took exceptions which were allowed; the plaintiff then amended, and obtained an order that the defendant should answer the amendment and exceptions together. The defendant's answer was afterwards sworn, but not having been filed on account of some informality, a motion was made by the plaintiff to reamend, without prejudice to the injunction. The affidavit of the plaintiff, and his solicitor, alleged, that, except by the answer to the amended bill, they had no notice of a fact which was very material information to the plaintiff in the prosecution in his defence at law;

(a) Mair v. Thelusson, sup,

(b) 2 V. & B. 330.

Amendment. that all the circumstances connected with that transaction must be brought before the court, either by way of supplement, or re-amendment, more particularly than as stated in the answer; and that the plaintiff could not safely proceed to trial without the defendant's answer to such supplemental or reamended matter: the affidavit then stated the proposed re-amendments.

Motion re

fused.

Injunction dissolved upon the

merits, revived upon plaintiff's amending.

But where the answer had come in, and not been excepted to, this motion was refused with costs; Lord Eldon said, that the plaintiff was in that stage which entitled him to sustain the injunction, by showing exceptions for cause, or showing merits, but that he was not entitled to amend (a). It is scarcely necessary to notice, that if exceptions are taken, the common order to amend cannot be obtained till the exceptions are disposed of; because the defendant is prevented by the exceptions from moving to dissolve, and therefore the plaintiff shall not indirectly give himself an opportunity of amending, without the special order that such amendment shall be without prejudice to the injunction (b).

There is another point connected with this subject, upon which much difference of opinion has been entertained, viz. as to the mode by which an injunction, which has been dissolved upon the merits, is to be revived upon the plaintiff having amended. It has been maintained, that if the defendant is in default for not answering the amendments, the injunction will be revived (as it is granted

(a) Turner v. Bazeley, 2 V. & B. 330.
(b) Dixon v. Redmond, 2 Sch. & Lef. 515.

under the same circumstances on an original bill) Amendment. upon application of course until answer or further order. Lord Hardwicke is reported, by Mr. Dickens, in a case where a special application had been made for this purpose upon notice, to have declared that notice was not necessary, and that the motion was of course (a): and Mr. Dickens, in some observations which he submitted to Lord Thurlow (but which, like those he gave to Lord Bathurst in Mason v. Murray, have not met with the approbation of succeeding judges), insisted that this was the practice (b). This, however, is in a great measure contradicted by the establishment of the doctrine just alluded to, as to permitting amendment without prejudice to the injunction; the proposition, as observed by Lord Eldon, being absurd, that the court holds a plaintiff so strictly to the rule, that he shall put his best case foremost at first, as not to permit him to amend without losing the injunction, unless expressly saved in that order of amendment; yet if upon discussing the merits, the court thinks him not entitled to an injunction, he shall obtain it by amending, not communicating to the court why he did not make the case for it at first (c). And indeed it is hardly probable that Lord Hardwicke should have expressed himself in Bagster v. Walker in the manner represented by Mr. Dickens; as in a case which subsequently occurred, he stated the doctrine upon the subject to the contrary, in the

(a) Bagster v. Walker, 2 Dick. 757. also reported without these observations, 1 Dick. 109.

(b) 2 Dick. 755.

(c) 2 V. & B. 103.