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Commission the two courts, a distinction prevails as to the period to examine
of the cause in which this motion must be made. In witnesses abroad. the Exchequer, it cannot be made, till after answer (a):
in the Court of Chancery, on the other hand, when the object of the suit is merely to obtain evidence for an action, it will be granted before answer (b).
There are two cases in which it appears that a 'commission was ordered before answer, where the bill not only prayed a commission to examine witnesses, but also equitable relief (c). Lord Eldon has, however, accounted for these orders, as being made in cases of that description, in which the equitable relief, although prayed, is never finally given ; the one being an action for freight, the other upon policies of insurance (d). Causes of this nature are extremely common in the Exchequer, upon the form of the record, indeed, cases for equitable relief (the bill representing the policy to have been obtained by misrepresentation, &c. and praying that it may be declared void, and may be delivered up :) but when the discovery, and the examination of witnesses abroad, have been obtained, instead of proceeding to a hearing, the practice is, that the court hears no more of it, except by a motion to dissolve the injunction, the party having the means of satisfactorily trying the cause at law (e). · It does not appear from either of the reports of Noble v. Garland, whether the defendant was in contempt: in the other two cases before Lord Eldon,
(a) Lowther w. Whorwood, Bunb. 120. Drummond v. Ohlsen, 2 Fowl. Ex. Pr. 63.
(6) Noble r. Garland, 19 Ves. 372. Coop. 222.
an injunction had been obtained for want of an Commission
to examine answer. It has been laid down in a recent case, by witnesses. Sir J. Leach, that this motion cannot be made unless abroad. the defendant is in contempt, or has answered. His Honour said, that until the defendant had answered, there was no issue tendered in the cause, nor any matter in dispute between the parties; and therefore that previous depositions were in the nature of voluntary affidavits : but that if the defendant was in contempt, the plaintiff should, notwithstanding, have his commission; for otherwise he might lose his testimony by the default of the defendant (a).
Upon this motion it is necessary that some witness, whom it is intended to examine, should be named; unless the party moving, is plaintiff, both at law and equity, and therefore moving in his own delay (6). Mr. Fowler mentions a motion for a commission to examine witnesses in America, without prejudice to an injunction; but as the affidavit did not name any of the witnesses, nor the point of evidence to which they could depose, nor that the witnesses were aged and infirm, and not likely to live until an examination could take place, the motion was refused with costs (c).
It has been stated to be the practice in the Exchequer, that a commission will not be granted, pending an injunction, unless the money be paid into court; but this is not required in the Court of Chancery (d).
(a) King v. Allen, 4 Mad. 247.
Motion to dissolvo,
Of the Motion to dissolve Injunctions to stay Proceedings
at Law, and what Cause may be shown against it. Waver of Where an injunction has issued irregularly, the irregularity in the order. defendant is entitled to have the order discharged ;
but any act of his founded upon it, is a waver of the irregularity, and an affirmance of the existence of a regular injunction (a). It has accordingly been determined, that a defect in the injunction will be cured, by the defendant putting in his answer, and moving to dissolve (b): but irregularity is not waved
by merely moving for time to answer (c). Injunction As soon as the defendant has put in his answer, he cannot be dissolved be, is entitled to move to dissolve the injunction, unless fore answer. cause is shown to the contrary. Upon this motion
it is immaterial how long the answer has been in before the motion, as the plaintiff has a day to show cause given him (d). The motion cannot be made before answer; it was attempted in a case in the Exchequer, where the plaintiff at law resided abroad, and it was proposed by his counsel to read an affidavit in support of the motion, but the court refused the application (e).
(a) 2 Ves. 22.
* If the injunction has been obtained upon an at- Motion to tachment for want of appearance or answer, the dissolve. defendant's clerk in court should pay or tender the Costs of atcosts of the attachment to the plaintiff's clerk in tachment
must be first court, which are ten shillings; and as soon as the paid. answer is filed he may move that the injunction be dissolved, unless the plaintiff or his clerk in court, having notice thereof, show to the court good cause to the contrary (a). There is a note of a case in Bunbury, in which an injunction was continued, because the defendant had not signed his answer (6).
This motion, though a motion of course (c), can, How moved. it is said, only be made in open court (d), and the brief of it must be put into counsel's hands, not later than the first day of the seal, and therefore an order obtained, where this has not been done, will be discharged with costs for irregularity (e).
If there are several defendants, the court will, in If several general, not dissolve the injunction, till all have ano defendants,
injunction swered (f). However, where a bill is brought will not be against a cestuy que trust and trustee, and the trustee
ister and the trusteo dissolved till
stee all have will not answer, it is not uncommon to dissolve the answered. injunction on the motion of the cestuy que trust (g),
There is an instance also, of an exception to this rule, in a case before Lord Eldon. An injunction had been obtained to restrain several de..
(a) Harrison, Ch. Pr. 547.1 Fowl. Ex. Pr. 283.
(f) Wy. Pr. Reg. 234. Boheme v. Porter, Barnard. Ch. Rep. 352. Rowcroft v. Donaldson, 1 Fowl. Ex. Pr. 286.
(9) Mose. 355.
Motion to dissolve.
fendants, consisting of the assignees of some bankrupt partners, and the partners remaining solvent, from proceeding at law upon a verdict which they had obtained. The solvent partners having put in their answer, had obtained the common order nisi, although the other defendants had not answered. Lord Eldon was of opinion, that cases might exist, where the circumstance of some of the defendants not having put in their answer, would not be a sufficient ground against dissolving the injunction. His Lordship, however, did not determine it then, as exceptions were taken to the answer. The solvent partners afterwards put in a further answer, and the assignees put in their answer, to which exceptions were taken. The solvent partners afterwards obtained an order nisi to dissolve the injunction only as against them, which was made absolute. They then obtained an order nisi for dissolving the injunction against all the defendants, although the assignees had not put in their further answer to the exceptions, and Lord Eldon, upon the motion to make that order absolute, declared his opinion, that it was competent for the solvent partners to make this motion, but that the injunction could not be dissolved, pending the exceptions to the answer of the assignees (a).
(a) Joseph v. Doubleday, 1 V. & B. 497. :