|
|
|
|
|
|
|
|
|
|
|
|
|
|
SALMON v. CLAGETT. 161
denied the whole equity of the bill, (m) These phrases are sufficiently explicit in reference to the English practice, according to
which, as to points of fact, an answer like a plea has then credit
throughout for all it avers; and no distinction is then made be-
tween matters responsive and in avoidance. But in reference to a
practice which recognizes the distinctions that have just been
drawn between the case stated in the bill upon which the injunc-
tion rests; the case made by the bill as a ground for the relief
prayed; and the case presented by the answer including both
matter responsive and in avoidance, they are exceedingly ambi-
guous.
One of the articles of impeachment against Cardinal Woolsey
was, that he, as Chancellor, had granted injunctions without any
bill being put in. (n) And Lord Bacon, in reply to the king's
instructions, pledged himself not to grant injunctions on the mere
statement of the bill, but only on matter confessed by the defen-
dant's answer; unless called for by pressing circumstances, (o)
After which, it was declared, by a statute which is in force here,
that no subpaena or any other process, except injunctions to stay
waste or proceedings at law, should be granted before a bill was
filed, (p) But, during the provincial government, it appears to
have been the practice to grant an injunction to stay proceeding at
law, before the filing of the bill; upon a petition briefly stating the
circumstances; and that too, as it would seem, without any affi-
davit, or other evidence of the truth of the matters so stated. In
which case the petition prayed an injunction until the matter
could be heard on a bill to be filed, setting forth the facts more .at
large; and the bill, afterwards filed, prayed a continuance of the
injunction as granted, (q) This course of proceeding was, no
doubt, adopted on the ground of analogy to the English mode, of
granting an injunction in some cases for a similar purpose on an
affidavit stating the facts of the case before the filing of the bill, (r)
But I have met with no instance of this kind since the establish-
ment of the republic.
According to the present course of proceeding, in this court,
there is but one mode of obtaining an original injunction; and
that is by a bill. To lay a proper foundation for an injunction, the
|
|
|
|
|
|
|
|
|
|
(m) Forum Bom, 196; 2 Harri. Prac, Cha, 263.—(n) 4 Inst. 92.~-(o)Park His.
Co. Cha, 82.—(p) 4 Ann, ch. 16, s, 22,—(q) Powell v. Speake, 1760, per SHARP,
Chancellor.—Chancery Proceedings, lib. D, D, No,J, 83,—(r) Eden Inj. 36, 231.
21 v.3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
 |
