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3dly. Upon the defendant's obtaining the usual How ob
tained. Order for time to answer;
4thly, If it be a country cause, or the defendant Injunction be abroad, upon his obtaining a commission to take upon order
for time; or his answer, which is termed in practice craving a upon dedidedimus (a), (b).
If the defendant refer the bill for Impertinence, be- Reference of
bill for imfore the time for answering is out, the plaintiff cannot,
pertinence. at the expiration of the time, move as of course for an injunction for want of answer; but he is then in the same situation as if the time for answering was not out, and must move upon notice and affidavit of circumstances (c):
If the defendant, before the time for answering Effect of be out, puts in a Plea, or Demurrer, or both, an plea or deinjunction cannot be granted while they are pending (d). But though in general a demurrer may be
(a) It seems that the practice in Ireland is, that a defendant may, upon notice, move for a dedimus without an injunction; and that if an injunction is obtained pending such notice of motion, it is dissolved of course on the dedimus being granted. M‘Mahon vi O‘Brien, 1 Sch. & Lef. 237.
(6) There seems to be an error in the report of the case of Parnell v. Nesbitt, 1 Price, 144. which represents a special motion to have been made for an injunction, though the defendant had obtained a commission to take his answer abroad, with three months time for its return.
(c) Neale v. Wadeson, 1 Bro. C. C. 574. S. C. 1 Cox, 104. Harris v. Montgomery, cit. ib. Macnamara v. Kinderley, 1 Fowl. Ex. Pr. 276.
(d) Anon. Sel. Ca. Ch. 24. Humphreys v. Humphreys, 3 P.W. 396. Cousins v. Smith, 13 Ves. 165.
filed at any time before process of contempt has been issued, or an order for time obtained, even though the period for answering be expired (a); yet where a defendant has permitted an injunction to go against him upon a dedimus, the time for answering being expired, he will not be allowed to demur alone, although he is neither in contempt, nor under an order for time (6).
To remedy as much as possible the delay occasioned by this species of defence, the courts will always permit a plea or demurrer to an injunction bill to be argued out of their regular course. In the Exchequer, the plaintiff applies for a short day for the argument, when the court usually appoints the third day after the application ; and if upon a rule given to argue, the plea or demurrer is neglected to be set down for argument, or, if set down, is abandoned by the defendant's counsel, or is overruled, the plaintiff may immediately move for an injunction, which will be granted till answer or further order (c).
As a defendant may plead to part, demur to part, and answer to the rest of the bill ; if, upon argument, either the plea or demur should be overruled, the plaintiff will be entitled to move, upon that suggestion, for an injunction; and even if both plea and demurrer should be overruled, some equity may still be shown for granting or continuing an injunction arising out of the defendant's answer: thus where there was a demurrer, plea, and answer
(a) East India Company v. Henchman, 3 Bro. C. C. 372. Sowerby v. Warder, 2 Cox, 268.
(6) Edmonds v. Savery, 3 Meriv. 304.
(c) 1 Fowl. Ex. Pr. 235, 236. Vide also Lamb o. Bowes, Bunb. 11. Ram v. Bradbury, ib. n
to an injunction bill, the demurrer was overruled, How oband the plea ordered to stand for an answer, with tained. liberty to except; yet an injunction was granted upon the merits confessed in the answer (a). Where a demurrer has been put in, and any
ad. vantage has been gained at law by the defendant in equity, in consequence of the pendency of the demurrer, it is proper that the parties, upon its being overruled, should be placed in the situation in which they would have been, if the demurrer had never been filed. As observed by Lord Eldon: “ while it is in contemplation whether a good case can be made or not; if it turns out in the result of the demurrer, that there is an equitable case, the principle is, to deal with it as an equitable case from the first, and therefore it is the duty of the court, to place the defendant, where he would have been, but for an untenable defence (6).” In the case which contains these observations, the defendant in equity, pending a demurrer which he had put in, had taken the plaintiff in execution; the demurrer was afterwards overruled, and the common injunction obtained. Lord Eldon, upon motion, discharged the plaintiff out of custody; but as the judgment had been satisfied by the plaintiff's having been taken in execution, and if he had been discharged, the debt would have been lost; it was done upon the terms of his undertaking again to confess judgment (c). So in the case of Raphael v. Birdwood (d), where, in conse
(a) Mansfield v. Cook, 1 Fowl. Ex. Pr. 236.
quence of a demurrer having been put in (which was afterwards overruled), and the argument having been postponed for the convenience of the defendant's counsel, the plaintiff had been prevented from obtaining the common injunction; this principle was attended to, and a special motion for an injunction to stay trial, without the previous order for the common injunction, was granted.
Injunction If a defendant has appeared, and the time for where the time for an
answering be not out, or if he has answered in time, swering is an injunction can then only be obtained upon motion, not out, or defendant
of which two days notice must be given to the dehas answered fendant's clerk in court (a). An injunction was disin time.
solved for irregularity, where the plaintiff having obtained the injunction as of course, for want of the answer of two defendants who resided abroad, without notice to the other defendant, who was sole
plaintiff at law, and had put in his answer in time (6). Special in
Though an injunction will not be granted before junction
answer, on the sole ground that the plaintiff will othersometimes granted to wise be entitled to sue out execution before the comstay proceedings at
mon injunction can be obtained (c); yet special inlaw before junctions to restrain proceedings at law will sometimes
be granted where the plaintiff has had no opportunity of obtaining the common injunction (d). Thus upon a motion to restrain the defendant from suing out
(a) Wy. Pr. Reg. 234. Harrison, Ch. Pr. 541. 1 Fowl. Ex. Pr. 231.
(b) Cooper v. Flindt, Wightw. 409.
execution upon a warrant of attorney to confess judg- How obment on a bond, part of the consideration of which was the defendant returning, as cash, a post obit security formerly granted by the plaintiff, who was an expectant heir, in discharge of a debt of inconsiderable amount, and upon the understanding that the principal was not to be called for till the death of the plaintiff's father. Upon affidavit of these facts, it being the vacation, and no subpæna returnable till the next term, Lord Eldon granted the injunction, the plaintiff undertaking to serve the defendant with immediate notice, and with liberty to the defendant to apply during the continuance of the sittings (a).
(a) Annesley v. Rookes, 3 Meriv. 226. n.