§ 113. Where the complainant, after a statutory foreclosure, filed his bill to foreclose the same mortgage, alleging that the statutory foreclosure was invalid, and obtained an injunction; it was dissolved, on the ground that he had no longer any interest in the mortgage or mortgaged premises, and that the purchaser at the sale, or his grantees, should have filed the bill.'

§ 114. Where a member of Assembly, in Virginia, before its session, obtained an injunction to stay proceedings in execution against his property; held, that he could not object his privilege as a member, to prevent the hearing of a motion to dissolve the injunction during the session.'

§ 115. Intervenors in an injunction suit can oppose the dissolution of an injunction, only by making out a case which would entitle them to an injunction.3

116. Where the defendants answer that they have no substantial interest in the subject matter of the bill, but that a third person, not a party, is alone interested, the court will not dissolve the injunction at their instance, for his benefit."

§ 117. An injunction against two defendants will not be dissolved, if, construing their answers and the bill together, the allegations of the bill are prima facie maintained.'

§ 118. Where an injunction has been issued against a party against whom there is no equity, the court may order it conditionally dissolved.

§ 119. The bill, filed in 1848, stated that, in 1817, the complainant's mother agreed with him that he might take

494.

Gilbert v. Cooley, Walk. Ch.

2 Botts v. Tabb, 10 Leigh, 616.

3 Taylor v. Gillean, 23 Tex. 508.

4 James v. Norris, 4 Jones Eq.

5 Hammett v. Christie, 21 Geo. 251.

6 Cabiness v. Crawford, 21 Geo. 312.

possession of certain land and make improvements, and in
consideration of so doing might take the rents and profits.
during his life; that he accordingly took possession, and has
hitherto continued to cultivate the same; has built a dwelling-
house and other buildings thereon, and has always since been
in the occupancy thereof, and taken to his own use the rents.
and profits; that in September, 1846, she conveyed the tract
to the defendant N., wife of the defendant W., her heirs and
assigns, for the consideration of natural love and affection; that
the deed was made and accepted with full knowledge of the
rights and interests of the complainant; and the bill prayed
that the deed may be corrected in conformity with the
alleged agreement, and an injunction issued restraining the
defendants from prosecuting an ejectment, &c. The answer
denied all knowledge or information of the agreement, and
stated that the defendants are informed and believe no such
agreement was ever made, &c. The mother was not made a
party. Held, the mother should have been made a party
defendant, and, as she was not, the answer was sufficient to
dissolve the injunction.1

§ 120. Where, after injunction, the defendant dies, and the complainant has not revived the suit, the proper mode of proceeding is by order that he revive within a specified time after service of the order, or that the injunction be dissolved. So, mutatis mutandis, where, after answer, the complainant dies.3

$121. Where there is a motion to continue an injunction, and at the same time the death of the defendant is suggested, the question of the death will be tried instanter.

§ 122. Where the answer of the defendant is made and

De Groot v. Wright, 3 Halst.
Ch. 516.

2 Cummins v. Cummins, 4 Halst.

Ch. 173.

3 White v. Fitzhugh, 1 Hen. & M. 1; Carter v. Washington, 1 Hen. & M. 203.

4

Thompson v. Allen, 2 Hay, 237.

sworn to, before his death, it may be used on a motion to dissolve the injunction, though filed subsequently.1

§ 123. A motion to dissolve an injunction, on the coming in of the answer after the death of the complainant, administration not having been granted on his estate, will not be heard.2

§ 124. It is no objection to the dissolution of an injunction, that the representatives of a deceased party have not put in their answer, where the foundation of the injunction is a fraud charged against them jointly with the other de fendants.3

§ 125. Where four plaintiffs united in the same bill for an injunction to stay four several judgments at law against them respectively, on grounds common to all, against five defendants, and the injunction was granted; and, pending the suit, two of the plaintiffs and three of the defendants died; an order, that unless the living plaintiffs, and the represen tatives of the deceased plaintiffs, should revive the injunction in the name of the representatives of the deceased plaintiffs, against those of the deceased defendants, on or before a certain day, the injunction should stand dissolved, was held irregular and erroneous.*

§ 126. Where a receiver has been appointed in a creditor's suit, it is not a matter of course to dissolve the injunction, upon a full denial of the equity of the bill, if there is good reason for retaining the property in the hands of the re

ceiver."

§ 127. Where a defendant is restrained by injunction from collecting his debts, and preserving or disposing of perish

Dennis v. Green, 8 Geo. 197.

2 Hill v. Jones, 1 Mur. 211.

3 Wakeman v. Gillespy, 5 Paige,

McKays v. Hite, 2 Leigh, 145.

5 Bank, &c. v. Schermerhorn, 1 Clarke (N. Y.), 303.

able property, the complainant should apply for the appoint ment of a receiver; and, if he neglects to do so, the court will dissolve the injunction, so far as to enable the defendant to preserve it himself.1

§ 128. Although it is a good objection to an application for the appointment of a receiver in a creditor's suit, that no execution has been issued to the county in which the judgment debtor resided; yet, when the complainant has sworn, in his bill, that an execution has been so issued, an injunction will not be dissolved upon a simple affidavit contradicting that fact, but the defendant must put in his answer, denying the allegation, and then move to dissolve the injunc tion on bill and answer.2

$129. An injunction issued on a bill filed in the old. Chancery Court of New York, in June, 1847, was ordered to be dissolved, unless the plaintiff gave the injunction bond required within thirty days. He failed to give the bond, and before the expiration of the thirty days, and after the new Constitution went into effect, dismissed his bill, and filed a new bill, substantially the same, in the Supreme Court, on which he applied to a judge at chambers, and the injunction was granted. Held, the proceeding was irregular, and, if there were grounds for an injunction on the new bill, he should have applied for a temporary injunction, and had an order to show cause why it should not be continued until the hearing.3

$130. Service of the rule nisi for dissolving an injunction. in vacation, under the rules in equity, in Georgia, may be made on the complainant's solicitor, after appearance by the defendant's solicitor."

$131. The injunction meant by the Alabama statute

(Clay's Digest, 357, § 79), upon the dissolution of which the bond is to have the force and effect of a judgment, is the writ of injunction, and, unless such writ issues, there is nothing to support the statutory judgment.'

§ 132. In New York, a voluntary dismissal of an injunction bill, after answer, is prima facie evidence that the complainant was not entitled equitably to an injunction, and the defendant may therefore have a reference to ascertain his damage by reason of the injunction. Such dismissal takes the cause from the calendar, but does not prevent consequential proceedings, and motions may still be made in the suit. A notice of hearing, after a dismissal of the suit, is irregular, but not such a proceeding as will be set aside on motion.

§ 133. Where an injunction is wholly dissolved in a county or corporation court, in Virginia, the bill is not to stand dismissed until two terms succeeding have been held in such county or corporation; and the appellate court will not presume, from lapse of time, that two such terms have been held; but this must expressly appear in the transcript.3 It is doubted, whether the neglect of the clerk to enter the dismissal after the lapse of two terms can have the effect to keep the cause on the docket.4

§ 134. A bill for an injunction and other specified relief ought not to be dismissed at the next term after a dissolution of the injunction, under the statute of Virginia of 1804. The statute does not apply to causes instituted before the statute went into operation."

§ 135. In California, an injunction granted ex parte may

be dissolved without notice."

Shorter v. Mims, 18 Ala. 655.

2 Mutual, &c. v. Roberts, 4 Sandf. Ch. 592.

3 Pitts v. Tidwell, 3 Munf. 88. • Ib.

Singleton v. Lewis, 6 Munf. 397. 6 Callego v. Quesnall, 1 Hen. & M. 205.

Borland v. Thornton, 12 Cal. 440.