The principle governing the practice applies to all cases.-Hewitt v. Price, V. C. June, 1827. But see now the 3rd General Order of April, 1842. 1847. MOGGRIDGE v. THOMAS. Commercial Railway Company. A case in which a gratis appearance, ought not to deprive the plaintiff of the THE VICE-CHANCELLOR.-A clerk in court, having received Randell v. The general instructions from the defendants to enter an appearance forthwith to all bills filed against them, and being also the clerk in court to the plaintiff, and as such clerk in court employed to file the present bill, no sooner filed the bill, than in pursuance of the instructions aforesaid he enters an appearance to it for the defendants. This is surely a case in which a gratis appearance, ought not to deprive the plaintiff of the right to move ex parte to stay waste in the pulling down of houses.-Randell v. The Commercial Railway Company, V. C. April, 1839. right to move ex parte to stay waste in the pulling down of houses. Bell v. Hull and Selby Railway Com pany. In cases where the act sought ed would, if to be restrain VICE-CHANCELLOR.-In cases where the act sought to be restrained would, if done, produce to the plaintiff irremediable mischief-for instance, the cutting of a railway through the plaintiff's wharf, so as to prevent all communication with the river-a defendant not served with subpoena cannot, by appearing gratis, prevent the plaintiff from moving ex parte upon certificate of bill filed and affidavit.—Bell v. Hull and Selby Railway Company, done, produce to the plaintif V. C. December, 1839. irremediable See Aller v. Jones, 15 Ves. 605; Harrison v. Cockerell, mischief, a de fendant not 3 Meriv. 1; Collard v. Cooper, 6 Madd. 190; Acraman v. Bristol served with Dock Company, 1 Russ. & M. 321. [In this case Lord Lynd- subpœna canhurst, whilst he overruled the objection on the one side, that the defendants having appeared had a right to the usual notice of motion, also overruled an objection on the other side, that the de- tiff from moving fendants were not entitled to be heard by counsel against the motion.] Petley v. Eastern Counties Railway Company, 8 Sim. 483. not, by appearing gratis, prevent the plain ex parte upon certificate of bill filed and affi davit. SIR JOHN LEACH.-Where a defendant, not having been Mansfield v. served with a subpoena, has, nevertheless, appeared several days Short. Where a defendant, not having been served with a subpoena, has nevertheless appeared several days before an application is made for an injunction, it is difficult to say he ought not to be served with notice of motion, whatever be the nature of the mischief apprehended. 1847. MOGGRIDGE v. Lewis v. Langham. Except the injury threatened be irreparable, for instance, the cutting down of ornamental timber and the like, no injunc tion ought to be granted, before an application is made for an injunction, it is difficult to say he ought not to be served with notice of motion, whatever be the nature of the mischief apprehended. The defendant having become aware that a bill has been filed, and of course having also become aware of the object of that bill, the delay in making the application shows that the plaintiff could not think the danger arising from notice very great. In Aller v. Jones, 15 Ves. 605, Lord Eldon, when he acquiesced in the remark of counsel that the appearance could not prevent the motion [ex parte] for an injunction against waste, added that it might perhaps be different where the defendant, had appeared long enough to have enabled the plaintiff to give notice.-Mansfield v. Short, V. C. February, 1818. SIR JOHN LEACH.-I am of opinion that except the mischief threatened be irreparable, for instance, the cutting down of ornamental timber and the like, no injunction ought to be granted, even after a gratis appearance, as it is called, unless upon notice. There is already too great a facility to obtain ex parte injunctions. -Lewis v. Langham, V. C. April, 1835. See Marasco v. Boiton, 2 Ves. Sen. 112; and Collard v. Cooper, 6 Madd. 190. even after a gratis appearance, unless upon notice. There is already too great a facility to obtain exparte injunctions. SIR JOHN LEACH.-If you serve the subpoena, it is a proof that you consider the case to be one, upon which the defendant ought to be heard. You cannot, after such a step as that, allege that the case is one for an ex parte injunction.-Newchurch v. Branscomb, V. C. June, 1818. See Perry v. Weller, 3 Russ. 519. In Ramsbottom v. Freeman, 4 Beav. 145, the plaintiff had served the defendant with a subpoena, and the time for entering the appearance had, it may be conjectured, expired. No appearance had been entered. The plaintiff had served the defendant personally with a notice of motion for an injunction and receiver. The plaintiff had not obtained the previous leave of the Court for such service. The Court said that the motion for a receiver could not, except by special leave of the Court, proceed on a notice of motion served personally. The counsel for the plaintiff then moved ex parte for the injunction, and the Court granted 1847. the injunction. The regularity of this proceeding seems question- MOGGRIDGE v. able. THOMAS. SIR JOHN LEACH.-Where the defendant has previously appeared, and that circumstance is concealed, an order for an injunction obtained ex parte will be discharged.—Sutton v. Mumford, V. C. July, 1830. See Harrison v. Cockerell, 3 Mer. 1. Sutton v. fendant has cealed, an order for an injunction obtained ex parte will be discharged. Railway Com pany. VICE CHANCELLOR.-This ex parte order for an injunction Randell v. The [it was against pulling down houses, and was obtained on the Commercial same day that the bill was filed] must be discharged. Although the appearance was already entered, that fact was not communicated to the Court, and yet the clerk to the plaintiff's solicitor had been informed of it.-Randell v. The Commercial Railway Company, V. C. April, 1839. Ex parte order for an injunction against pulling down houses discharged, an appearance having been already entered, and that fact not having been communicated to the Court. Gordon. A party is under no obli SIR JOHN LEACH.-A party is under no obligation to instruct Lloyd v. counsel for a day mentioned in a notice of motion served upon him, such day not being a motion day, and the notice not purporting to be given by leave of the Court.-Lloyd v. Gordon, V. C. April, 1818. gation to in struct counsel for a day mentioned in a notice of motion served upon him, such day not being a motion day, and the notice not purporting to be given by leave of the Court. THE VICE CHANCELLOR said that an affidavit in support of Calvert v. Gray. an ex parte injunction, should always state the precise time at which the plaintiff, or those acting for him, became aware of the threatened injury. This was a rule which he had laid down for his own guidance, and he had seen no reason to relax it.- Calvert v. Gray, V. C. February, 1830. The affidavit in support of an ex parte injunction should always state the precise time at which the plaintiff, or those acting for him, became aware of the threatened injury. 1847. MOGGRIDGE v. SIR JOHN LEACH.-No matter what may be the merits, an injunction founded upon an affidavit, sworn before the filing of the bill, cannot stand. The affidavits purport to be sworn in a cause, and yet, until the bill is filed, the cause does not exist.— Williams v. Davies, V. C. January, 1829. No matter what Jackson v. obtained upon VICE CHANCELLOR.-An injunction, obtained upon affidavits, not actually filed at the time of the order being pronounced, is irregular, and must be discharged.-Jackson v. Cassidy, V. C. June, 1841. the time of the order being pronounced, is irregular and must be discharged. Marshall v. service should time when the motion is actually made, it SIR JOHN LEACH.-If it be not necessary that the affidavit of service should be sworn and filed at the time when the motion is actually made, it is nevertheless indispensable that such affidavit should be sworn and filed, previously to the rising of the Court, on the day on which the motion is made.Marshall v. Colehill, V. C. November, 1820. See also Lord Miltown v. Stewart, 8 Sim. 34. is nevertheless indispensable that such affidavit should be sworn and filed, previously to the rising of the Court, on the day on which the motion is made. Ross v. Shearman. It is a rule as old as Lord Hardwicke's time, that an affidavit, sworn before the solicitor of the party in the cause, cannot be used. SIR JOHN LEACH-It is a rule as old as Lord Hardwicke's time, that an affidavit, sworn before the solicitor of the party in the cause, cannot be used. The rule prevails in all the courts of Westminster Hall. The reason of it is sufficiently obvious.Ross v. Shearman, V. C. December, 1820. See in the matter of Hogan, a lunatic, 3 Atk. 813 (a). (a) In a work mainly designed for the student and young practitioner, there may be occasions on which the ensuing anecdote may afford no inopportune warning. The author, soon after his call to the bar, was instructed to oppose a motion (it was to be moved by Sir Samuel Romilly) for a special injunction, all the affidavits in support of which had been sworn before the plaintiff's solicitor, a Master Extraordinary in the country. Now it is stated SIR JOHN LEACH-The reason for granting an injunction upon petition only, without any bill filed, no longer exists. There is no day in the year on which a counsel, willing to settle and sign a bill, may not be found. Stead v. Glay, V. C. April, 1827. 1847. MOGGRIDGE V THOMAS. The reason for granting an injunction upon See The Mayor of London v. Bolt, 5 Ves. 129. in Wyatt's edition of the Practical Register, and in Harrison's Practice by Newland, and in Turner & Venables' Practice, that affidavits taken before a person, who is a solicitor in the cause, cannot be read. None of these treatises, however, cite any authority, except in the matter of Hogan, 3 Atk. 813.-" And that was a case "in lunacy-and that might be "considered" (thus reasoned the incipient equity draughtsman) "as anything but conclusive in 66 Chancery. Lord Hardwicke in"deed said that the practice of were not at liberty to receive information from any source so connected with the cause espoused by that party. [This passage seems to need an emendator.] They said they had before in this term ruled the same point in the case of the Recorder of Colchester, against whom an attachment had been moved for by reason of non-compliance with a writ of mandamus to grant an inspection of the corporation books. And they added that if it were possible to make any distinction in these cases, they should be more ready to admit it in the case of a habeas corpus like the present, because the Court were peculiarly called upon to preserve the liberty of the subject by every means in their power. But the rule was invariable, and was founded on the wisest and most obvious principle. * In Batt v. Vaisey, 1 Price, 116 (1814), an objection was taken that the affidavit on which the motion had been made and the rule granted, had been sworn before the defendant's attorney; and the Court held that a sufficient reason for setting aside the rule. In Cooper v. Archer, 12 Price, 149 (1823), the following is the marginal note:-The rule now adopted in this Court that affidavits to be used in Court shall not be sworn before the attorneys of the parties in the cause, is not to be construed literally, as applying only to the attorney whose without any bill filed, no longer exists. |