Amendment. following clear and distinct manner:

Special motion and affidavit.

"Where an

injunction has once been dissolved on the merits upon the answer put in, whether by decree of the court on dismissing the bill, or on motion upon coming in of the answer on arguing of the merits, as they appear on the oath only of the defendants: if the plaintiff amends that bill, or files a supplemental bill with new matter, which is part of the old cause, he cannot apply as of course for a new injunction to stay proceedings until answer or further order; the ground of that course of the court being, that the plaintiff ought to state his case on filing the original bill as to the merits of his equity, the court not giving him liberty to split and retail out his equity to apply upon another head for another injunction after the former one is dissolved (a).'

The doctrine thus clearly and satisfactorily established, has been followed in all the modern cases (b), and no injunction which has been once dissolved, can now be revived, without special motion on amendments verified by affidavit. These determinations have thus not only exploded the doctrine contended for by Mr. Dickens, but also the modification of it adopted by Lord Thurlow in the above noticed case of Edwards v. Jenkins, where his Lordship was of opinion, that, although it was necessary that this application should be on special motion, yet there need not be any affidavit in support of the amendment:

(a) Travers v. Lord Stafford, 2 Ves. 19. S. C. Amb. 104. (6) Anon. 3 Atk. 394. Lady Markham v. Dickenson, 1 Ves. jun. 30. Norris v. Kennedy, 11 Ves. 565. James v. Downes, 18 Ves. 522. Bliss v. Boscawen, 2 V. & B. 101. Vipan v. Mortlock, 2 Meriv. 479.

as he considered the only difference to be, that the Amendment. court decided on special motion upon the amended

bill, what was done of course on the original bill.

that defend

ant should

Two points, therefore, in every application of this sort, should be attended to, as without their concurrence the injunction cannot be obtained. 1st, The truth of the amended bill, must be verified upon special motion by affidavit, showing that the plaintiff could not sooner have put them on the record; and 2dly, the defendant must be in default. There is a Necessary case in the court of Exchequer (a), in which it was laid down, that it was necessary that the defendant be in default. in this case should be in contempt; this determination has, however, been overruled, Lord Eldon having expressly determined, that it is sufficient if he is in default (b). In the former of these cases the doctrine is thus stated by Lord Eldon: "He cannot, I apprehend, apply till default by the defendant, and then he does not move for the injunction upon the amended bill by reason merely of the default; but taking that as one ground, he moves for the injunction, verifying the truth of the amended bill by affidavit; and then if there is both default by the defendant, and an equitable case proved by the affidavit of the plaintiff, the court giving credit to the bill in the first instance, if there is also default by the defendant, in the latter does not give credit to the bill as the second proceeding, unless, besides the default, the bill is also verified by affidavit; but until some default, the plaintiff cannot be entitled to the injunc

(a) Gadd v. Worrall, 2 Anst. 553.

(b) James v. Downes, 18 Ves. 522. Vipan v. Mortlock, 2 Meriv.

Amendment. tion: for instance, unless the time for answering has expired without an answer, no verification of the bill will do. If Lord Thurlow meant to lay down, that though there was no default by the defendant, the mere verification of the amended bill is sufficient; with all deference, I do not agree to that (a) (b).

Defendant may move, upon affi

Where an injunction has been thus obtained, it seems that a defendant will be allowed to move, before davit, to dis- answer, to dissolve it, upon affidavit in reply to that, solve injunction granted upon which the injunction has been so granted (c); upon amend- and it seems reasonable that the defendant, upon

ments.

Whether,

where no in

such affidavit, should be allowed to show as cause for dissolving the injunction, that the matter introduced by way of amendment, was in the knowledge of the plaintiff at the time he filed the original bill (d).

But, where an injunction has not been obtained junction ob- upon the original bill, and the plaintiff afterwards tained upon amends, it has been determined that an injunction the original

bill, injunc

tion

be

may obtained of

course upon amendments.

(a) 18 Ves. 523.

(b) There is a case which occurred in Ireland, which is a remarkable instance of the laxity of practice which, till a recent period, had prevailed in that country. It was a motion to dissolve an injunction, the plaintiff having amended his bill without leave: the court, however, considering the amendments material, and such as would have been allowed, and the plaintiff offering terms, which tended to prevent delay, continued the injunction, upon the plaintiff paying the costs of the defendant's motion to dissolve. Welsh v. Hannan, 2 Sch, & Lef. 516. This determination, it will be observed, is remarkable for two important objections: 1st, the case is founded upon a violation of the principle, that an injunction drops of course upon amendment; and, 2dly, it does not seem to have been inquired, when the subject matter of the amendment came to the plaintiff's knowledge.

(c) 2 Meriv. 479.

(d) Ibid.

will issue of course, upon the defendant being in Abatement. default for not answering the amended bill. The determination (a) to this effect, which was made by Lord Erskine (b), is supported by the authority of a loose passage in Gilbert (c), and of an anonymous case in Barnardiston (d). It is, however, so much at variance with the general practice with regard to amendment in injunction cases, so contrary to reason, and so little supported by authority, that it is not improbable, when the question is reconsidered, that the court will expect the plaintiff to state, upon affidavit, his reasons for not having put the whole of his case originally upon the record.

When an injunction has been obtained, and the Abatement cause afterwards abates by the death of the defend- by death.

(a) Nelthorpe v. Law, 13 Ves. 323.

(6) There is a singular error with regard to this determination, which has crept into the report of the case of Bliss v. Boscawen, 2 V. & B. 102. in which Lord Eldon was much pressed by the counsel for the plaintiff with the above authorities, and particularly with that of Nelthorpe v. Law. His lordship is represented as saying, "In the case of Nelthorpe v. Law, I made that order with reluctance, but was bound by the practice;" unless, however, the case was again brought forward before his lordship (of which no notice is taken in the report), this must be a mistake, as, according to the date, the case was decided almost two months before Lord Erskine quitted the seals. The passage, however, is, at all events, of importance, as recording Lord Eldon's opinion of the impropriety of the practice.

(c) 183.

(d) 322.

K

Abatement.

Effect of

ant, the practice is to move, on the part of his representatives, that the plaintiff may revive within a reasonable time (usually a week), or that the injunction may be dissolved (a). If the cause abates by the death of the plaintiff, the defendant may obtain a similar order against his representative (b).

There is scarcely any point of practice, upon which bankruptcy the authorities are so much at variance, or upon which of plaintiff. so little light can be derived from writers professing to treat upon this subject, as the question, how far the bankruptcy of the plaintiff, causes an abatement of the suit (c)?

No abate

ment in the Exchequer, and earlier cases in

Chancery,

In one of the earliest cases upon the subject, where an injunction had been obtained by a person who afterwards became bankrupt, Lord Hardwicke said, that bankruptcy was no abatement, and that the plaintiff must show cause, or he would dissolve the injunction (d). In another case, where the defendant, after the bankruptcy of the plaintiff,

(a) Stuart v. Ancell, 1 Cox, 411. Hill v. Hoare, 2 Cox, 50. Collard v. Hoare, ib.

(b) Duke of Chandos v. Talbot, Sel. Ca. Ch. 24. Ward v. Loring, 1 Fowl. Ex. Pr. 287. There is the following obscure note in Tothill, 99. Webb v. Wise, a mortgage before an injunction, the court declares that it shall go and be revived, notwithstanding no bill of revivor. 10 Car.

(c) Where a defendant becomes bankrupt, the plaintiff cannot dismiss his bill without costs, Rutherford v. Miller, 2 Anst. 458. a great hardship upon the plaintiff, as the defendant may move to dismiss the bill, with costs, for want of prosecution, and so drive him to speed the cause, although he may be able to obtain all the relief which he seeks under the commission. Monteith v. Taylor, 9 Ves. 615.

(d) Anon. 1 Atk. 263.