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Practice

in Special Injunctions.

Affidavits as

to facts.

Service.

that he is the original inventor (a). So upon a bill 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 (b). 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).

The plaintiff should also by his affidavit state 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).

The practice of the court, upon the subject both of service of the subpoena, 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.

(b) Ante, p. 288.

(c) Ante, p. 260, 261. 284, 285.

(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, in Special

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 (b).

Injunctions.

order for injunction.

The orders pronounced by the court in cases of Form of special injunctions have been various at different 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.

(b) 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 v. 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.

Practice

in Special

swer or further order." This has been adopted, as Injunctions. giving defendant the liberty to move, if necessary, to dissolve, upon affidavit.

How dissolved.

As to read

ing affidavits

tion to the answer.

In whatever terms an injunction may be conveyed, 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 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 support of title.

Upon motions to continue or dissolve injunctions to stay waste, or acts in the nature of waste, the court is also equally strict in not permitting affi davits 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.

(b) Ante, p. 108.

(c) 2 Bro. C. C. 88. 1 Cox, 263. 2 Dick. 673.

in Special Injunctions.

for this purpose. Lord Kenyon, however, felt so Practice
much doubt upon the subject, that he ordered the
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 sanc-
tion the practice, without the concurrence of the
Chancellor (b).

There is, however, no doubt of the admissibility May be read of affidavits to acts of waste, or in cases of partneras to facts. ship, in support of allegations of mismanagement (c). But where, upon a motion for an injunction after Affidavits may be read 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 affidavits puts in this a different case, from that in which the answer 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).

an answer

instead.

cannot be originally

But although an injunction obtained on affidavits Injunction filed before the answer may be sustained by affidavits 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.

Peacock v. Peacock,

(c) Charlton v. Poulter, 19 Ves. 148. n. 16 Ves. 49. Lawson v. Morgan, 1 Price, 303. (d) Morphett v. Jones, 19 Ves. 350.

upon affida

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at once supports them by the statement of particular facts on affidavit, the defendant possesses an opportunity 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 admissible (b).

In the above noticed case of Lady Strathmore v. Bowes, in consequence of the doubts of Lord Kenyon, the defendants, in order to avoid the delay, consented that the plaintiff should read affidavits: and accordingly affidavits were read on both sides. 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 answer. 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

be

(a) Smythe v. Smythe, 1 Swanst. 252. That affidavits may read in support of an allegation in the bill, not contradicted by the answer, vide ante, p. 109.

(b) Ib.

(c) 19 Ves. 154.

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