injunction has not been obtained: as, where a demurrer Injunction to had been put in, the argument of which had been stay trial. postponed, in consequence of the absence of the defendant's counsel, and the defendant, upon its being afterwards overruled, put in an answer, before the plaintiff could move for the common injunction. Upon a motion to restrain the defendant from going to trial, supported by the affidavit of the plaintiff and his solicitor, that it was impossible to obtain an office copy of the answer in time to attend therewith at the trial, Lord Eldon made the order, upon the ground that if the demurrer had been argued at the time when it stood in the paper, the plaintiff, upon its being overruled, might immediately have put himself in possession of the common injunction, and have regularly proceeded to extend it to stay trial (a). extend to stay trial. There seems to have been great fluctuation in the Affidavits practice, as to the nature and extent of the Affidavit necessary to by which this application is to be supported. It the Common was once said, that it ought to state the specific Injunction discovery expected (b). This strictness was, however, soon departed from, and succeeded by so great à degree of laxity, that it became sufficient if the plaintiff swore, that he was advised and believed, that he could not safely proceed to a trial, until the defendant had put in his answer. This was understood to be the usual form (c), and accordingly in a case in the Exchequer, where the terms of the affidavit (a) Raphael v. Birdwood, 3 Meriv. 229, n. (b) Hartley v. Hobson, 2 Dick. 728. Farrar v. Lewis, ib. 729. (c) Jones v. - 8 Ves. 46. Partington v. Hobson, 16 Ves. G Injunction to were, that the plaintiff expects that the answer will stay trial. disclose a material discovery, and is advised that he cannot safely go to trial without it, the court held the affidavit insufficient, merely on the ground that the word expect, was substituted, for the usual term believe (a). In one case it was even granted upon so slight an affidavit, as that the plaintiff is advised and believes, that important discovery may be obtained from the defendant's answer, which, if a true answer, will enable plaintiff to defend himself at law (b). Lord Thurlow put one limitation upon the rule, holding, that although this affidavit was generally sufficient, yet, if the defendant was abroad, that it should state a special ground to show, that the discovery required from him was material (c), and there were instances, in which Lord Rosslyn refused the application, because the affidavit did not state, that the plaintiff expected that the discovery would be material (d). The practice, however, continued so unsettled, that so late as the case of Partington v. Hobson (e), the application was granted upon the old form, that the plaintiff is advised and believes that he cannot safely go to trial until the answer. In the case, however, of Appleyard v. Seton (f), which occurred a few days afterwards, Lord Eldon, upon re-considering the subject, said, that the old practice was wrong, and ought (a) Rix v. Zang, cit. 16 Ves. 221. (6) Nelthorpe v. Law, 13 Ves. 323. (c) Revet v. Brahám, 2 Bro. C. C. 640. Wright v. Braine, 3 C. C. 87. 2 Cox, 232. (d) 16 Ves. 222. (e) 16 Ves. 220. (f) Ib. 223. stay trial. to be altered. That the plaintiff's stating, that he Injunction to cannot safely go to trial without the answer, is not enough, as it may be true that he cannot safely go to trial either with or without the answer: that he ought to state that he believes that the answer will furnish discovery material to his defence in the action. The doctrine thus established has been since recognized and approved by several cases (a), in one of which the principle is thus stated by Lord Eldon. “The plaintiff states by affidavit that he is advised and verily believes he cannot safely go to trial without the answer; and proceeds to aver that he verily believes the answer will produce discovery material to the just trial of the action. The court never examines how far that affidavit is well founded, except to this extent, that if the defendant alleges that the plaintiff has by his bill stated a case, which, admitting the whole to be true, would not introduce evidence or a discovery that could possibly be material at the trial: the injunction, as it could be of no use to the plaintiff, would not be granted under such circumstances. On the other hand, if the answer, supposing it to admit the facts alleged by the bill, will produce what may be material, the court does not go into the consideration how far it may have effect, as the defendant at law have a great may deal of other evidence than that of which the bill seeks a discovery; and the whole may be taken together; in other words, the court trusts the affidavit of the plaintiff instead of itself trying the merits at (a) Earnshaw v. Thornhill, 18 Ves. 488. White v. Steinwacks, 19 Ves. 84. Bishton v. Birch, 2 V. & B. 41. Injunction to law, unless it appears clearly on the face of the bill stay trial. that the discovery will be immaterial (a)." The subject has since undergone much discussion in some recent cases before Sir J. Leach, in which his Honour, though he considered himself bound by the precedent in Appleyard v. Seton, expressed a wish to see still greater strictness, in the form of the affidavit. He thought that it ought not only to state, that the discovery expected from the answer, will be material to the plaintiff's defence, but that the plaintiff should swear that he believes that the answer, together with the other evidence to be adduced, would constitute a good defence at law (b). Mr. Bell observed, that he understood that the present opinion of Lord Eldon was the same: it will therefore be safer in practice to frame the affidavit, if possible, accordingly. It has already been noticed, that after a decree for the administration of assets, the court will extend the common injunction against a creditor proceeding at law to stay trial without requiring an affidavit (c). It is no objection that the affidavit was filed only the day before the motion, it being one of those affidavits which cannot be answered (d). But if the application is made immediately before the assizes, or if there has been any laches on the part of the plaintiff in equity, it will be refused. Thus where the action was brought in September, and the commission day at Lancaster being on the 18th of March, the motion Injunction to by a continuation of the general seal was made on stay trial. the 19th, Lord Erskine refused the application, the defendant having declined to give security for the costs (a). In another case, an action had been commenced in 1816, and the plaintiff in July, 1817, obtained a verdict, and a new trial having been ordered on the 21st of January, 1818, on the 9th February the defendant at law filed a bill for the production of documents (which he had given notice to the plaintiff to produce at the trial, but which were not then produced), and obtained the common injunction. The commission day at York was on the 7th of March, and on the 28th of February a motion was made before Sir J. Leach to extend the injunction to stay trial, which his Honour upon the ground of the delay, and the trial being so near, refused with costs (b). This motion on being brought on appeal before Lord Eldon, received a similar decision (c). to examine If the plaintiff in equity requires the testimony of Commission witnesses residing abroad in defence of the action witnesses at law, a commission for that purpose will be granted abroad. upon motion. An affidavit is necessary, similar to that required upon the motion to stay trial till after the defendant's answer (d). In consequence of the difference in the practice of (a) Blacoe v. Wilkinson, 13 Ves. 454. (b) Field v. Beaumont, 3 Madd. 102. (d) 19 Ves. 376. |