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Practice that he is the original inventor (a). So upon a bill in Special Injunctions.
to restrain an infringement of copyright by an assignee of the author, the plaintiff, (since the recent determinations at law,) must show that the assignment was in writing; though it seems that in case he is the assignee of an assignee, it will be sufficient to state the assignment under which he himself claims, without producing the assignment to his assignor (6). We may also refer to former passages to show, how far, possession under colour of title, will induce a court of equity to interfere by injunction, before a trial at law to restrain violations
of patent and copyright (c). Affidavits as The plaintiff should also by his affidavit state to facts.
some actual violation of his rights, or a sufficient ground to apprehend it. Thus, in cases of waste, an affidavit merely as to his apprehension or belief that the defendant intends to commit waste, without stating any grounds for it, will not be sufficient; there must either be some fact, like the marking
trees, sending a surveyor, or some threat (d). Service. The practice of the court, upon the subject both
of service of the subpæna, and of the service of injunctions, and the cases in which the necessity for the latter has been dispensed with, either from the circumstance of the party having been present and having heard the order, or from his being otherwise
(a) 2 Meriv. 624.
(d) Gibson v. Smith, 2 Atk. 182. Barnard. Ch. Rep. 427. Jackson v. Cator, 5 Ves. 688. Hanson v. Gardiner, 7 Ves. 309. Riches v. Lance, ib. 417. Hannay v. M‘Entire, 11 Ves, 54.
cognizant that it had been pronounced (a), have been Practice so fully considered in a former part of this treatise,
Injunctions. that it will be sufficient to refer to those passages, as the doctrine upon the subject is the same in every case of a breach of an order of injunction (6). The orders pronounced by the court in cases of Form of
order for inspecial injunctions have been various at different
junction. periods (c). It will be observed, from several of the precedents in the appendix to this work, that the form frequently adopted enjoined the party “till further order (d).” In some cases the injunction has been till
appearance and further order (e)," in others “ till answer and further order (f).” But the form at present used, and which is established by a rule laid down by Lord Eldon (g), is “ till an
(a) Since the former part of this treatise has been printed, the doctrine upon this subject has been carried one step further by Lord Eldon. In the case of Vansando v. Rose, 6th December, 1820, a defendant was committed for a breach of an injunction; though the only notice which he had of it was from the information of the plaintiff's solicitor.
(6) Ante, p. 49 et seq. 66 et seq.
(c) It is said in Cary to have been usual to grant injunctions on surmises, with a proviso si ita sit. Fodringham o. Chomely, Cary, 53. Aschughe v. Shelton, ib. 56.
(d) App. IX. X. Lane v. Newdigate, 10 Ves. 192. (e) Lord Grey de Wilton v. Saxon, 6 Ves. 106.
(f) Potter v. Chapman, 1 Dick. 146. Robinson v. Lord Byron, 1 Bro. C. C. 588. 2 Dick. 703. It is by mistake stated in Mr. Cox's report to have been till “ answer or further order.” Reg. Lib. B. 1784. fol. 143. Drury v. Molins, 6 Ves: 328. Lord Tamworth v. Lord Ferrers, ib. 419.
(g) The author is indebted for this information, and that contained in the next paragraph, to the registrar. No notice is taken of the point in any of the modern books of practice: all the most recent orders will, however, be found to be expressed accordingly.
As to read
tion to the answer.
Practice swer or further order.” This has been adopted, as Injunctions. giving defendant the liberty to move, if necessary,
to dissolve, upon affidavit. How dis- In whatever terms an injunction may be conveyed, solved.
it is never dissolved, except upon motion in open court. But occasionally, in extremely pressing cases, the Lord Chancellor has, in the vacation, appointed a special hearing at his house for this purpose.
There are few points of practice which have been ing affidavits in contradic- more discussed, or which are more satisfactorily
established, than that by which the right of the plaintiff has been established, to read affidavits upon the motion to dissolve, in contradiction to the defendant's answer. It has been already shown that it is a rule, to which there is no exception, that affidavits are never permitted to be read in contradiction to the answer, upon the motion to dissolve an injunction to stay proceedings at law (a). This doctrine is also applied, to the motion to dissolve an injunction, to stay the indorsement or negotiation of
a bill of exchange (b). Not read in Upon motions to continue or dissolve injunctions support of title.
to stay waste, or acts in the nature of waste, the court is also equally strict in not permitting affidavits to be read in contradiction to the answer in support of the plaintiff's title. But as to facts of waste or mismanagement the court will permit affidavits to be read. In the case of Lady Strathmore v. Bowes (c) an application was made by the plaintiff
(a) Ante, p. 108.
may be read
for this purpose. Lord Kenyon, however, felt so Practice much doubt upon the subject, that he ordered the in Special
Injunctions. motion to stand over for precedents; and though there are several in which this was done (a) (some of which were produced), he was unwilling to sanction the practice, without the concurrence of the Chancellor (b). There is, however, no doubt of the admissibility May be read
as to facts. of affidavits to acts of waste, or in cases of partnership, in support of allegations of mismanagement (c).
But where, upon a motion for an injunction after Affidavits appearance, the defendant applies that it may stand where deover, in order to file affidavits in opposition, and fendant
having obthen, instead of filing an affidavit, puts in an an- tained time swer ; Lord Eldon has observed, that he considers to file affida
vits puts in this a different case, from that in which the answer an answer
instead. comes in regularly in time: and has said, that he should look at the answer as an affidavit, and allow the original affidavit to be read in contradiction to it (d).
But although an injunction obtained on affidavits Injunction filed before the answer may be sustained by affidavits
originally filed subsequently, yet an injunction cannot be ori- obtained ginally obtained on such affidavits. In a recent case, vits filed where this was attempted, Lord Eldon observed, that after answer. the allegations in the bill are general : if the plaintiff
(a) Gibbs v. Cole, 3 P. W. 255. Ryder v. Bentham, 1 Ves. 543. Attorney General v. Bentham, cit. 1 Cox, 264. Mount v. Fenner, cit. 2 Dick. 676.
(b) 1 Cox, 264.
(c) Charlton o. Poulter, 19 Ves. 148. n. Peacock r. Peacock, 16 Ves. 49. Lawson v. Morgan, 1 Price, 303.
(d) Morphett v. Jones, 19 Ves. 350.
may be read
Practice at once supports them by the statement of particular in Special
facts on affidavit, the defendant possesses an opInjunctions.
portunity of explaining or denying those facts by his answer ; but if the plaintiff reserves his affidavits till the answer is filed, he deals not altogether fairly with the defendant, who is entitled, before the answer, to be apprized of the points on which the plaintiff rests his case (a). Affidavits of acts done subsequent to the filing of the bill, are clearly ad
missible (6). Affidavits
In the above noticed case of Lady Strathmore v. on the part
Bowes, in consequence of the doubts of Lord Kenin opposition yon, the defendants, in order to avoid the delay, to affidavits consented that the plaintiff should read affidavits : in contra
and accordingly affidavits were read on both sides. diction to the answer.
Mr. Dickens expresses considerable surprise at the plaintiff's consenting that the defendant should read affidavits in support of the answer, and observes, that it was a thing never before heard of. But although there is no actual decision upon this point, yet there can be no doubt but that affidavits are admissible, upon the part of the defendant, in opposition to the affidavits filed in contradiction to the
Lord Eldon, in alluding to this point, has observed (c), that the case of Lady Strathmore v. Bowes proved the correctness of the doctrine, that the defendant may read affidavits in support of the answer; for the injunction was afterwards dissolved
(a) Smythe v. Smythe, 1 Swanst. 252. That affidavits may be read in support of an allegation in the bill, not contradicted by the answer, vide ante, p. 109.
(c) 19 Ves. 154.