Effect of the The modern practice, however, is, where the party Common In- is in contempt for breach of the injunction, to give junction.

notice of a motion, not that the defendant should show 'cause why he should not be committed (a); but that he may stand committed for breach of the injunction, which is moved upon affidavit of the service of the injunction. If the other side is not prepared to defend the motion, the court usually gives a day to show cause against it, and then upon hearing the affidavits on both sides, decides whether the party is guilty of the breach: if he be guilty, the court makes an order for his commitment, and he will not be discharged unless he pays the adverse party his costs (b). But where the breach is not wilful or contemptuous, the court is generally satisfied by merely making the party pay the costs (c).

Cases in the Exchequer where the plaintiff at law is permitted to proceed to a certain extent, not

It has been seen, that by the practice of the Court of Exchequer, the injunction in many cases stays all further proceedings, at whatever period of the cause at law it may have issued. Cases, however, frequently occur where, pending an injunction, the situation of the plaintiff at law is such, as to induce that court to the injunc- permit him to proceed a certain length in his action, notwithstanding the injunction. This however is

withstanding

tion.

(a) 6 Ves. 488.

(b) Harr. Ch. Pr. 552.

(c) Bullen v. Ovey, 16 Ves. 141. Leonard v. Attwell, 17 Ves. 385. Partington v. Booth, sup.

junction.

always done with a stay of execution (a). Thus, where Effect of the Common Inthe defendant upon putting in his answer had obtained the usual order, to dissolve the injunction unless cause shown; no exceptions were taken to the answer, but the plaintiff, in order to keep the injunc tion alive, delayed the time of showing cause for a week, undertaking then to show cause upon the merits. As this delay, prevented the plaintiff at law, from trying his cause in that term, so as to have judgment of the term, the court granted a motion for leave to give notice of trial notwithstanding the injunction (b). And where a bill had been filed after a verdict, in order to be relieved against it, and for an injunction; on the last day of the term, the defendant having put in his answer, obtained the usual order to dissolve, unless cause was shown at the sittings, when exceptions were shown for cause, but which by the course of the court could not be argued until the following term, the court, upon motion, permitted the defendant in the meantime to take his costs, and enter up judgment at law, with a stay of execution, notwithstanding the injunction (c). Where the plaintiff in equity has brought a writ of error on a judgment at law, the court upon a motion of course will grant an order that the defendant shall 'be at liberty to proceed to non-pros the writ of error, and affirm his judgment notwithstanding the injunction (d). So where an attachment had been granted against the plaintiff in the King's Bench,

Injunction to leave was given to the defendant to proceed to exastay trial. mine him there upon interrogatories, notwithstanding the injunction (a). But where the answer has come in so recently, that it could not appear, whether it was full or not, the motion was refused (b). And in general it will not be granted, unless some reason be given, for dispensing with the ordinary rule; therefore where a plaintiff at law, having proceeded so far with his action that it might be tried at the sittings after term, and presuming that the injunction would be dissolved the last day of term when the plaintiff in equity was to show cause, had applied to be permitted to give notice of trial for the sittings after term, the court refused the motion (c).

Common Injunction extended to stay trial.

When the plaintiff in the Court of Chancery (or in those causes, in the Exchequer, where the injunction does not stay all further proceedings) thinks, that the discovery to be derived from the defendant's answer, or from the depositions of witnesses abroad, will be material to his defence at law, he must make a special application to Stay Trial till the answer comes in, or till the return of the commission. This motion must be made on a notice specifying the nature of the application; an affidavit of the service of it must be made, and also an affidavit

(a) Simmons v. Mullins, Bunb. 182.

(b) Howes v. Griffin, ib.

(c) Royal Exchange Assurance Company v. Andre, ib. 292.

verifying the plaintiff's case, and stating his ex- Injunction to stay trial. pectations of discovery from the defendant's answer (a).

Upon the principle upon which this motion is usually granted, it was determined by the House of Lords, in a case where the plaintiff applying for a commission to examine witnesses abroad, appeared from the facts of his case to be entitled to it; that although the answers of the defendants had come in, yet that the plaintiff was entitled to the injunction to stay trial, till the return of the commission, as a necessary consequence of his right to it (b). So also where there were more defendants than one, and the plaintiff stated in his affidavit that the answer of the other defendants was material to his defence at law, a motion to dissolve an injunction to stay trial upon the coming in of the answer of one of the defendants only, was refused with costs (c). In a case in the Exchequer where an injunction had been continued till the answers, of the only two defendants who had not answered, should come in; one of them put in his answer, swearing that the other knew little or nothing of the transaction, and obtained the common order nisi to dissolve: this order having been discharged for irregularity, a motion was made three days afterwards that the defendant who had answered might proceed to trial notwithstanding the injunction; but it appearing that the defendant, who had not answered, was ma

(a) 1 Turn. Ch. Pr. 364.

(b) Nichol v. Verelst, 7 Bro. P. C. 245. Ed. Toml, vol. iv. 416. (c) White v. Steinwacks, 19 Ves. 84.

Injunction to terially concerned in the transaction, the court said stay trial. he ought first to answer (a).

An answer filed, is a sufficient objection to this motion; but where the defendant submitted to exceptions, the order was made; an insufficient answer being as no answer (b).

The motion cannot be made on the same day, or at the same seal, with the motion for the common injunction, which ought to be previously obtained (c). The effect of granting such an application, as observed by Lord Eldon, would be a surprise upon the defendant, operating the utmost injustice; for, according to the present practice, he may reason thus, that he has so many days to answer, and there must be so many days before the trial: he will therefore take more time, as the only inconvenience will be that execution and not trial will be stayed, and between the two motions his answer will come in, and he will get rid of the inconvenience of staying execution; whereas in the mode contended for, it might be said, that if he had known the effect of his not putting in his answer sooner, it should have come in. The defendant would thus be deprived of the benefit of that diligence, which would have prevented the first order (d).

But, if there are circumstances, which would render the operation of this rule inequitable, an injunction to stay trial will be granted, although the common

(a) Rowcroft v. Donaldson, 1 Fowl. Ex. Pr. 286.

(b) Bishton v. Birch, 1 V. & B. 366.

(c) Wright v. Braine, 3 Bro. C. C. 87. 2 Cox, 232. Garlick v. Pearson, 10 Ves. 450.

(d) 10 Ves. 452.