( If yes the Master reports the answer sufficient, the re- Cause fat frzode od 01 2ñojiq997 against disport operates ipso facto to dissolve the injunction (a).- solving. And where the injunction has been by order extended to stay trial, that order falls also as part of 190084 to fuod su the original injunction, without a motion to dissolve: the necessary effect of removing the common injunction, which is the foundation, being, that the superstructure is also removed (b). ་་་་ ་་ not sup to Master's 64 Although it may be inferred, from a passage in a Injunction valuable book of practice (c) that the plaintiff by ported by taking exceptions to the Master's report may uphold exceptions the injunction, yet the contrary has been repeatedly report. determined; Lord Eldon observing, that a case of pressing injustice must be shown, to call upon the court to revive, on the mere ground, that exceptions are taken to the report: that, upon general principles, there was much less mischief, in considering the Master's report conclusive, than in having exceptions upon exceptions, first to the answer, then to the Master's report, then in the shape of a rehearing, and, lastly, an appeal to the House of Lords (d). This point had been long before determined by Lord Rosslyn, when it was said that the meaning of the plaintiff's undertaking, to procure the Master's report in four days, was, that he will procure the Master's report of the insufficiency of the defendant's answer within that time. That }1" (a) 2 V. & B. 42. 2 Meriv. 479. Walter v. Russel, Bunb. 30. Hutchinson v. Markham, 2 Mad. Rep. 355. Peyto v. Hudson, cit. ib. overruling the passage contra in Hinde, p. 598.191 £ (b) Bishton v. Birch, 2 V. & B. 40. (c) 1 Turn. Ch. Pr. 372. (d) 1 V. & B. 503. 2 Meriv. 479. Cause against dissolving. Practice as to excep tions in the Exchequer, otherwise it would merely furnish the plaintiff with further means of delay, and there would be exceptions to a Master's report upon every reference of an answer to an injunction bill: that the plaintiff was not without his remedy, for if the court should be of opinion that the answer was not sufficient, he might move to revive the injunction (a). Upon the same principle where the Master had allowed exceptions, thinking the answer insufficient, but the Master of the Rolls, upon exceptions being taken to that report, allowed them, thinking the answer sufficient, Lord Eldon refused to revive an injunction, upon the ground of there being an appeal from that judgment of the Master of the Rolls. His Lordship said, that a more mischievous practice could not be introduced, than to uphold an injunction, where the judgment of the court was, that the answer is sufficient, upon the supposition that the judgment might be reversed (b). If the Master reports the answer insufficient, the injunction will be continued till the exceptions are answered; when that is done, the defendant may again move to dissolve the injunction, and the samė cause may again be shown by the plaintiff for its continuance (c). In the Exchequer the practice is materially dif ferent, as exceptions are there not made the subject of reference, but the court determines upon argument in the first instance. When exceptions, there (a) Botham v. Clark, 2 Cox, 428. (b) Scott v. Mackintosh, 1 V. & B. 504. fore, are taken, the plaintiff may adopt either of the Cause following modes of proceeding: against dissolving. Showing ex ceptions 1st, He may show Exceptions generally: this is done by setting down the exceptions to be argued in the ordinary way; in which case by an order of court generally. made the 7th of May, 1794, he must on filing the exceptions give a four day rule, one day exclusive the other inclusive (upon the construction of which it has been decided that Sunday is one of the four days (a)), for arguing the same in court on the first Tuesday, Wednesday, or Friday in term on which such rules shall expire, provided a four day rule shall happen to expire on a Tuesday, Wednesday, or Friday; if otherwise, a plaintiff, instead of giving a four day rule, shall give a rule to argue the same on the first Tuesday, Wednesday, or Friday that shall happen after the expiration of four days from the day of filing such exceptions. Where the exceptions are thus set down the plaintiff may proceed to argue all the exceptions, and if one of them be allowed, it is a motion of course to apply for an injunction immediately, which will continue until the exceptions are fully answered (b). Opening a material ex 2d. The other mode which the plaintiff may adopt is as follows. He may select one of the exceptions ception. which he considers material to the merits of his case, and then give notice to the defendant's clerk in court, of a motion for an injunction upon opening a material exception, or in case the exception shall not be holden material, then, that an injunction shall (a) Buller v. Grey, 2 Fowl. Ex. P. 5. issue upon the merits confessed in the answer.σ the plaintiff has not filed his exceptions in due course, but has been permitted to file them nunc pro tunc; he must give a four day rule for arguing (a). " If the exception is considered material, the injunetion issues of course. If it is holden to be immaterial, or is found to be answered, the plaintiff cannot then proceed upon any of the other exceptions, but must show cause upon the merits confessed in the answer. If the court should then be of opinion, that the cause is destitute of merits as made by the answer, the plaintiff may give a rule to argue the rest of the exceptions on the usual day, and if one of them only should hold, it will entitle the plaintiff to an injunction, which will continue, until the defendant tshall put in a perfect answer to the matter of the exception (b). And if the exception should be holden immaterial, but an injunction is granted on the merits, the general set of exceptions must be disposed of either by arguing them, or paying the defendant 40s. costs, as in the case of overruling them. But the latter is the more usual course. : 1 So if the exceptions selected from the general set of exceptions should be held material, and the plaintiff thereby obtains an injunction, the exceptions must be disposed of by giving the ordinary rule to argue them, and then they are of course submitted to, and the defendant puts in a new answer. The (a) Edwards v. Hogarth, 1 Price, 147. (b) It is stated in North's Life of Lord Keeper Guildford that his Lordship introduced this practice into the court of chancery, vol. ii. p. 79. oct. ed. 1808. There is no trace, howeyer, in any the books of practice of its existence. of : same course is taken where there is but one excep- Cause tion filed (a). holy p against dis solving. Though an injunction may be continued on exceptions, yet exceptions to an answer, without a report of its insufficiency, are not a sufficient cause for obtaining an injunction (b). If the defendant submits to answer the exceptions, he must in the Exchequer signify his submission to the adverse clerk in court two days previous to the day of argument, and upon suggesting to the court that the defendant hath submitted to answer the exceptions, an injunction is granted of course until answer Vor further order (c). of bill after exceptions or allowed. After a defendant has submitted to the exceptions, Amendment Nor upon argument they are allowed; if it is necessary to amend the bill, the plaintiff must immediately submitted to apply to the court for that purpose, and that the defendant may answer the amendments at the same time that he answers the exceptions. This is a motion of course; and after it has been entered and served, a further answer cannot be received, the terms of the order requiring that the defendant shall not only answer the exceptions, but the amendments at the same time (d). There is upon this subject a difference in the practice of the two courts. • In the Exchequer a further answer cannot be put in after exceptions have been taken; the tender of the further answer, is considered a submission to the (d) Mayne v. Hochin, 1 Dick. 255. Mayler v. Hankey, 2 Fowl. Ex. Pr. 12. Lawrence v. Partington, ib. 21. |