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made, that an injunction will not be dissolved on affidavits, except in cases of waste and partnership.1 And, on a motion to dissolve an injunction of a special nature, as to stay waste and the like, where the injury would be irreparable, the bill will be read as an affidavit to contradict the answer.2 So where the plaintiff, by bill sworn to, applies for an injunction against removing property, and the defendant makes an insufficient answer, the court will allow the bill of the plaintiff to be read as an affidavit, and if, on the whole case, the matter is left in doubt, the injunction will be continued until the hearing.3

§ 70. With regard to the nature, weight, and legal admissibility of testimony upon applications of this nature, it is held that an injunction will not be dissolved, as a matter of course, on the coming in of the answer denying the equity of the bill, if the complainant has adduced auxiliary evidence of his right. And that on a motion to dissolve an injunc tion, the defendant ought not to be required to invalidate, by full proof, the allegations of the bill; the burden is on the plaintiff to support them; and the defendant is required only to show that the evidence on which the injunction was granted is not entitled to credit. It is not expected that a party shall come as fully prepared with proofs as he might do on a final hearing. The bill can only be read as an affidavit."

$71. Depositions are sometimes offered as evidence. And where depositions were taken under an order of a county court in Maryland, to be used on the hearing of such motion, and the case was removed to the chancery court, the chancellor refused to exclude them on the hearing.

8

§ 72. We have already spoken of the insufficiency of affida

1 Sackett v. Hill, 2 Mich. 182.

Lloyd v. Heath, 1 Busb. Eq. 39. 3 Wilson v. Mace, 2 Jones Eq. 5. Orr v. Littlefield, 1 W. & M. 13. 5 North v. Perrow, 4 Rand. 1.

158.

Bibb v. Prather, Kentuck. Decis.

7 Airs v. Billops, 4 Jones Eq. 17. 8 Bellona, &c., 8 Bland, 442.

Affidavits, how

vits, without an answer of the defendant. ever, are often admitted in evidence. (a) Thus an affidavit is admissible, which goes to show that the injunction was irregularly issued, or that the officer allowing it was misled, and induced to grant it contrary to law. And, on the other hand, where a special injunction has been obtained on affidavits, and, on the answer coming in, the defendant moves to dissolve; such affidavits may be used against the answer.2

§ 73. Where an injunction is prayed for to prevent irreparable injury, and the case, as it appears on the bill, is a proper one for the interference of the court; if any of the material facts are denied in the answer, the court will not dissolve the injunction-upon the bill and answer alone, but hold it over until proofs are taken, or the matters in dispute, if questions at law, are decided by a court of law.3

74. The distinction is made, that affidavits taken by the complainant in a bill for an injunction, before the coming in of the answer, may be read in support of the allegations of the bill, on a motion to dissolve the injunction; but affidavits filed after the coming in of the answer cannot be read. The general rule is, however, that, upon a motion to dissolve

Carroll v. Farmers', &c., Harring. Ch. 197.

2 Custance v. Cunningham, 17 Eng. L. & Eq. 501.

3 Purnell v. Daniel, 8 Ired. Eq. 9. 4 Kinsler v. Clarke, 2 Hill Ch. 617.

(a) In New York, where a preliminary injunction is granted absolutely in the first instance, and the defendant seeks a dissolution thereof upon the ground that the whole equity of the bill is denied by the answer; it is not the practice to allow him to read affidavits in support of the answer, except where the answer is not conclusive under the 27th rule. Village, &c. v. Matthews, 9 Paige, 504.

But where the plaintiff is directed to give notice of his application for an injunction, or the defendant is required to show cause why the injunction should not be granted, whether a temporary injunction is allowed or not in the mean time, the defendant may produce his own affidavit, or those of any other persons, to show that the injunction should not be granted. Ib.

an injunction upon the coming in of the answer, the plaintiff cannot, except in a few cases, introduce affidavits to contradict the answer. The exceptions are held to be in the case of an injunction to stay waste; or where, in case of a dissolution of the injunction, the parties will not remain in statu quo at the hearing;3 or where irreparable mischief would ensue on the dissolution of the injunction. In New York, where the defendant moves to dissolve an injunction, upon the answer and the affidavits attached thereto, the plaintiff may oppose the motion by affidavits other than those attached to the complaint on which the injunction was granted.'

$75. Where new matter is contained in the answer, not responsive to the bill, which is relied upon, in any way as a foundation for setting aside the injunction, the complainant may read affidavits in contradiction of the new

matter."

§ 75 a. Where a bill was filed for an injunction, an injunction issued, and an answer on oath waived, but answer was made and affidavits read in its support, and a conflict of evidence produced, the injunction was not dissolved as of course, but was retained until a full hearing."

§ 76. Where the plaintiff relies upon the affidavits of third persons, annexed to the bill, to sustain an injunction, in opposition to an answer under oath, though the oath has been waived by the plaintiff, the defendant will be permitted to read the affidavits of third persons, in support of his answer.3

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§ 77. In New York, on motion to dissolve an injunction, the defendant may introduce evidence, in support of his answer, to rebut the affidavits annexed to the bill under the rule (37).1

§ 78. There are various miscellaneous points of practice connected with the dissolving of injunctions.(a)

§ 79. After an injunction has been dissolved on the merits, the complainant may amend, and obtain an injunction on the amended bill...

§ 80. A cross bill, formal in other respects, but which omits the prayer, that it be allowed as such, and heard with the original bill, is amendable, and on application to the chancellor, in vacation, to dissolve the injunction, should be regarded by him, pro hac vice, as amended. Such bills are treated with greater indulgence than original bills.3

81. Where a defendant moves to dissolve an injunction, and the motion is refused, and afterwards, by permission, he amends his answer, he is at liberty again to move the dissolution."

§ 82. If an amendment to a bill presents no new case, and changes no equities, the defendant may move a dissolution. of an injunction, without answering such amendment."

§ 84. If the original bill, on which an injunction was granted, be sworn to, the addition of an unsworn amendment, not needed to continue the injunction, is no cause for a dissolution."

1 Brown v. Haff. 5 Paige, 235. 2 Buckley v. Corse, Saxton, 504; Arnold v. Kreissler, 22 Tex. 580. 3 Nelson v. Dunn, 15 Ala. 501.

4 Edney v. Motz, 5 Ired. Eq. 233; Thomas v. Horn, 21 Geo. 177.

6 Mahone v. Central Bank, 17 Geo. 111.

6 Maddox v. Rowe, 28 Geo. 61.

(a) As to costs, see Cyrus v. Hicks, 20 Tex. 483.

85. In case of appeal from a verdict for the defendant in an equity cause, a final verdict only dissolves a previous injunction.1

§ 86. It is a sufficient answer to an application to dissolve an injunction, that the equity of the bill on which the injunction rests is not denied by the answer, although no exceptions have been filed. And, on the hearing of a motion. to dissolve, objections of every kind to the answer may be made, and are then in order.3

87. On motion to dissolve an injunction upon answer, exceptions filed are no objection to the motion, unless they affect the answer in points relating to the grounds of the injunction.*(a)

§ 88. Nothing in answer to a bill of discovery can be deemed impertinent, which tends to disprove the existence of such defence as is stated in the bill; and to entitle the

1 Neisler v. Smith, 2 Kelly, 265; see White v. Cazenave, 14 La. An. 57; Albright v. Mallory, 19 Tex. 106. 2 Wakeman v. Gillespy, 5 Paige,

112.

3 Gibson v. Tilton, 1 Bland, 352.

Lewis v. Leak, 9 Geo. 95; Smith v. Thomas, 2 Dev. & B. Ch. 126; Bainey v. Earle, 13 Ala. 106; Wyckoff v. Cockran, 3 Green Ch. 420; Doe v. Roe, Hopk. 276,

(a) In New York, an order by an injunction master, or vice-chancellor, at chambers, under Rule 125, allowing the plaintiff further time to except, does not enlarge the time within which exceptions must be filed to prevent the dissolution of an injunction, upon bill and answer. Wakeman v. Gillespy, 5 Paige, 112. Where an answer has been excepted to for insufficiency within the time prescribed by the rules of court, the defendant cannot move to dissolve the preliminary injunction, on bill and answer, until the time for procuring the master's report has expired. Parker v. Williams, 4 Paige, 439. An application to dissolve an injunction, and to discharge a ne exeat, upon bill and answer, cannot be heard until the expiration of the time (10 days) allowed the plaintiff to except. Satterlee v. Bargy, 3 Paige, 142. In North Carolina, contrary to the English practice, where exceptions are filed to an answer to an injunction bill, the exceptions and the motion to dissolve the injunction will be heard together. Edney v. Motz, 5 Ired. Eq. 233.

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