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plications, under various circumstances, to be made Special Into stay proceedings pending an appeal (a); these, Junctons. however, are not in general favoured, and it has been said, that execution will be suffered to proceed, unless the court sees, that if it should turn out to be wrong, the party cannot be set right again (6). These applications appear to have been made indiscriminately to the superior or to the inferior court; but it is settled by the most recent determinations, that this motion ought to be made to the superior court.

(a) Gwyn v. Lethbridge, 14 Ves. 585. Huguenin v. Basely, 15 Ves. 182. Willan v. Willan, 16 Ves. 89. Waldo v. Cayley, ib. 206. Monkhouse v. Corporation of Bedford, 17 Ves. 381. Way v. Foy, 18 Ves. 452. Macnaghten v. Boehm, 1 Jac. & Walk. 48. . (6) 17 Ves. 382.

Practice in Special Injunctions.

CHAPTER XV.

Practice of Courts of Equity in granting, continuing,

and dissolving Special Injunctions.

Home About A Special Injunction is usually obtained upon tained.

motion on certificate of bill filed, and affidavit verifying the material circumstances. But in the vacation, when the court does not sit, and no motion can consequently be made, a judge of a court of equity will grant an injunction upon petition (a), with affidavit and certificate of bill filed; and in an extremely urgent case, an injunction has been granted upon petition and affidavit, although no bill

has been on the file (6). Where Several of the rules which have been already granted against a noticed with regard to injunctions to stay proceedperson not a ings at law, obtain also in the practice adopted by party.

the courts in granting Special Injunctions. Thus an injunction will not be granted to restrain a person who is not a party to the cause. There are, however, exceptions to this rule, as well as to the rule with regard to injunctions to stay proceedings at law (c). Accordingly an injunction has been granted to restrain a tenant in possession, though no party

(a) Wy. Pr. Reg. 252. Smith v. Clark, 2 Dick. 455. Nichols v. Kearsley, ib. 645. Chamberlayne v. Dummer, 1 Bro. C. C. 166.

(6) Mayor of London v. Bolt, 5 Ves. 130.
(c) Ante, p. 48.

to the cause, from committing waste (a). Tenants Practice

in Special upon a lunatic's estate have been restrained, on pe- Injunctions. tition, from cutting down timber, though no bill has been filed (b). The following case upon this point is also stated to have been decided by Lord Camden. The plaintiff was the lord of a manor in Oxfordshire, upon which the defendants claimed a right to estovers, and under that right cut down timber in one day to the value of £400: the plaintiff filed a bill, and obtained an injunction to stay waste; upon its being served, their attorney recommended the defendants to deşist from cutting down any more timber, but advised other tenants to cut, upon which Lord Camden granted an injunction to stay waste against persons not parties (c). We have seen that a solicitor, who was no party in the cause, has, under circumstances, been restrained by an interlocutory order, from acting for one of the parties (d). In general also, if the bill does not specifically Injunctions

granted, pray an injunction, the plaintiff will not be entitled though'not to move for one, under the prayer for general re- specifically lief (e). But Lord Eldon has observed, that if after a decree for an account under a bill for a foreclosure, the mortgagor were to attempt to cut timber, the court would enjoin him, though there was no prayer; and his Lordship, in the case before him, where there had been a decree for a sale of part of the

(a) Attorney General v. Duke of Ancaster, 1 Dick. 68.
(6) In re Creagh, 1 Ba. & Be. 108.
(c) Cit. 2 Dick. 670.
(d) Ante, p. 312.
(e) Ante, p. 48.

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estate, from which there was an appeal, restrained the defendant from cutting timber in the meantime (a).

By the 4 Anne, c. 16. s. 22. a subpæna may issue upon a bill for an injunction to stay waste before the bill is actually filed, though it must be served before the return (6). This, however, is rarely done, and indeed till lately, a practice had become very general, not to serve any subpæna at all (c). This irregularity has, however, been reformed, by a determination of Lord Eldon (d); and at present if an injunction were to be obtained without service of the subpæna, it would be dissolved. In the case alluded to, this was not done, as the party had been misled by the practice which had before obtained ; but Lord Eldon permitted the defendants to show cause upon affidavits, considering the right to an answer to have been waived by the omission to serve the subpana.

After the defendant has appeared, a motion for a special injunction can, in general, only be made upon notice (e).

Sometimes, however, in cases in the nature of waste, the court will interfere upon an ex parte application by injunction after appearance: but if this is done, care must be taken, not to insert in the order, the usual allegation that the defendant has not

After appearance notice necessary. Injunction granted on

plication after appearance.

-". Blackwood,

(a) Wright o. Atkyns, 1 V. & B. 314.
(69 Vide ante, p. 49.

(c) Patrick v. Harrison, 3 Bro. C. C. 476.,
3 Anst. 851.

(d) Attorney General v. Nichol, 16 Ves. 338.
(e) Marasco v. Boiton, 2 Ves. 112.

appeared (a). In one case the defendant had ap- Practice peared the day before the motion was made. Lord ?

, in Special Eldon, however, granted an injunction, observing, that if a person about to commit waste, and against whom a bill was filed, could, by appearing the evening before the motion, prevent it, he would get two days, during which he might cut down the timber. His Lordship added, that perhaps it might be different where the defendant had appeared long enough to have enabled the plaintiff to give notice (6).

As to the affidavits necessary to obtain an in- Affidavits as junction, it is in general necessary that a plaintiff to title. should swear particularly to his title. An injunction has been refused where a plaintiff merely swore upon his information and belief that he was a remainder man under a settlement (c). An averment that the plaintiff is entitled in fee simple has also been considered insufficient, as being too general, he must set out his title particularly (d); and if the plaintiff's right appears to be doubtful, the court always refuses to interfere (e).

Upon the same principle it is required, that upon an ex parte application to restrain the violation of a patent right, the plaintiff should swear as to his belief at the time of making the application (and not as to his belief at the time he obtained the patent).

(a) Harrison v. Cockerell, 3 Meriv. 1.
(6) Aller v. Jones, 15 Ves. 605.
(c) Davis v. Leo, 1 Ves. 784.
(d) Whitelegg v. Whitelegg, 1 Bro. C. C. 57.
(e) Field v. Jackson, 2 Dick. 599. Fanshaw v. Rotherain, ib.

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