|
|
|
|
|
|
|
160 SALMON v. CLAGETT.
coming in of the answer unless cause shewn. The sole object of
which order nisi is to give the plaintiff time to see whether the
answer is correct and sufficient or not. Under this order the
plaintiff may shew for cause, that the answer is impertinent or
scandalous; and if, upon reference to a master, it is reported not
to be so, the injunction is dissolved; but if otherwise, the imper-
tinence may be expunged, and the plaintiff may then shew excep-
tions for cause; or he may shew cause upon the merits, (e) If he
shews cause upon the exceptions, and cannot maintain them, there
is no cause shewn, and the injunction is gone; (f) and, on shew-
ing cause upon the merits, if the answer denies all the circum-
stances upon which the equity is founded, the universal practice is
to give credit to the answer, and the injunction is dissolved upon
the credit given to the answer for that purpose, (g) If a plea is
ordered to stand for an answer, with liberty to except, the defen-
dant may move to dissolve, in like manner as on the coming in of
an answer, (A) But, if his demurrer or plea is allowed, he may
move to dissolve absolutely in the first instance; (i) or the better
opinion seems to be, that upon the allowance of the demurrer or
plea, the injunction is gone at once without any motion to dis-
solve, (j) From which it appears, that, according to the English
course of proceeding, on a motion to dissolve, a demurrer or plea
allowed, and an unexceptionable answer, denying the equity of the
bill, stand upon the same footing; and that the whole answer, as
well that which is responsive to the bill, as that in which new
matter is advanced in avoidance, is taken for true, credit is then
given to it for every fact it asserts, and it is taken to be in all
respects correct and sufficient.
Hence the intimate connexion, according to the English prac-
tice, between exceptions to the answer, and a motion to dissolve ;
the fate of the one almost always involving that of the other. And
hence, too, the propriety of the expressions, so often found in the
English books, that if the answer contains a sufficient defence to
the case stated in the bill, the injunction will be dissolved; (k)
and of shewing cause on the merits, or equity of the case con-
fessed in the answer; (1) and that the defendant has answered and
|
|
|
|
|
|
|
|
|
|
(e) Eden Inj. 71, 73.—(f) Bishton v. Birch, 2 Ves. & Bea, 42; Lacy v. Hornby,
2 Ves. k Bea. 202.—(g) Eden Inj. 80.—(h) Eden Inj. 70.—(i) Mason v. Murray, 2
Dick. 536; Hurst v. Thomas, 2 Anst 585.—(j) Travers v. Stafford, 2 Ves. 20.—
(k) Eden Inj. 86.—(I) Eden Inj. 78.
|
|
|
|
|
|
|
|
 |
