the said answer will contain matter very material to the plaintiff upon the trial of the action at law, and that the plaintiff cannot safely proceed to a trial of the said action without a discovery of the matters or things in the said bill mentioned, and which discovery the plaintiff expects the said answer, when put in, will contain. It was therefore prayed that &c. Whereupon and upon hearing the said affidavit of the plaintiff R. C. and Mr. T. of counsel for the defendants, this Court doth order that the injunction issued in this cause do extend (3) to stay trial. Crokelt v. Bishton, V. C. 10th March, 1815. Reg. Lib. A. 1814. fol. 339.

NOTES.

(1) Injunction to stay Trial.

After the common injunction has been obtained, it may be extended to stay trial until answer or further order. Crokelt v. Bishton, supra. Harr. 546.

But the common injunction must first be obtained. Wright v. Brains, 2 Cox, 232. S. C. 3 Bro. 87. Garlick v. Pearson, 10 Ves. 450. Taylor v. Leigh, 2 J. & W. 389.

Otherwise where the plaintiff had been prevented from obtaining the common injunction by a demurrer, the arguing of which had been postponed by the defendants. Raphael v. Birdwood, 3 Mer. 229, note.

The order will not be made where the application has been delayed until the eve of the trial. Blacoe v. Wilkinson, 13 Ves. 454. Field v. Beaumont, 3 Mad. 102. S. C. 1 Swan. 204. And see

Taylor v. Leigh, 2 J. & W. 388.

The order will be made notwithstanding the answer has come in, if there is no certificate of it. Nelthorpe v. Law, 13 Ves. 324.

A certificate of the answer being filed is a sufficient objection to the motion, but exceptions having been taken to the answer, and submitted to, the order was made. Bishton v. Birch, 1 V. & B. 366.

The order will be made notwithstanding that, according to the rules of the Court, the answer would come in before the trial could take place. Taylor v. Leigh, 2 J. & W. 388.

After the answer has come in, a motion may be made upon the merits for an injunction, and that it may be extended to stay trial. See Nicol v. Verelst, 7 Bro. P. C. 245. Garlick v. Pearson,

10 Ves. 451.

(2) Affidavit.

Formerly the order was made upon a general affidavit that the party was advised, and believed that he could not safely proceed to trial until the defendant had answered. Hartly v. Hobson, 2 Dick. 728. S. C. 2 Cox, 117. Farrar v. Lewis, 2 Dick. 729. S. C. cited 2 Bro. 639. And see Jones v. › 8 Ves. 46. Nelthorpe v. Law, 13 Ves. 323. Partington v. Hobson, 16 Ves. 220. Unless where the defendant was abroad. Revet v. Braham, 2 Bro. 639. But the practice has since been altered, and the affidavit must now go further, and state that the plaintiff believes that the answer will furnish discovery material to his defence in the action. Appleyard v. Seton, 16 Ves. 223. And see Earnshaw v. Thornhill, 18 Ves. 488. White v. Steinwacks, 19 Ves. 84. Bishton v. Birch,

Jones v.

2 V. & B. 41. Taylor v. Leigh, 2. J. & W. 389. This affidavit cannot be answered. , supra. The Court never examines how far it is well founded, except to this extent, that if the defendant alleges that the plaintiff has by his bill stated a case which by admitting the whole to be true, would not introduce evidence or a discovery that could possibly be material at the trial, the injunction as it could be of no use to the plaintiff, would not be granted. See White v. Steinwacks, supra.

As to the difference of the practice of the King's Bench and Common Pleas, as to the affidavit required by them to put off trial. See Partington v. Hobson, 16 Ves. 222. Tidd's Pract. 816. 817.

Effect of the Injunction to stay Trial.

Notice of trial, though accompanied with notice that it was to be considered as nugatory, unless the injunction should be dissolved previous to the day of trial, is a breach of the injunction to stay trial. Bird v. Brancker, 2 S. & S. 186.

(3) The language of the order is, that the injunction already granted shall be extended. Crokelt v. Bishton, supra. Bishton v. Birch,

2 V. & B. 40.

And on this ground it is held, that it cannot be dissolved separately. Bishton v. Birch, supra. And see Earnshaw v. Thornhill,

18 Ves. 485. Naylor v. Middleton, 2 Mad. 131. Exchange v. Barker, I V. & B. 367. note.

But see Royal

In Naylor v. Middleton, supra, the Vice-Chancellor seems to have thought that an order nisi for dissolving the injunction, although extended to stay trial, might be obtained by one of the defendants upon the coming in of his answer. But in White v. Steinwacks, 19 Ves. 83. the Lord Chancellor held that the injunction, when extended to stay trial, could not be discharged on the coming in of the answer of one of the defendants.

After the answers have come in, the injunction to stay trial may be dissolved separately, on cause shown on the merits. Barrett v. Tickell, Jac. 154.

No. III.

UNCTION.

ORDER NISI TO DISSOLVE INJUNCTION.

Whereas the plaintiff obtained an injunction for staying of the defendant's proceedings at law, till answer and other order to the contrary. Now, upon motion this day made unto this Court by Mr. J. being of counsel for the defendant G. it was alleged, that the defendant hath since put in a full and perfect answer to the plaintiff's bill, and thereby denied the whole equity thereof. And therefore it was prayed, that the said injunction may be dissolved; which is ordered accordingly, unless the plaintiff his clerk in court, having notice hereof, shall on Thursday, the 19th day of this instant November, shew unto this Court good cause to the contrary. Southcote v. Goldsworthy, M. R. 12th November, 1747. Reg. Lib. B. 1747. fol. 60.

For like order. See Harr. 516. Hand's Pract. 45. Equity Draftsman, 587.

No. IV.

ORDER CONTINUING INJUNCTION, ON EXCEP

TIONS.

Whereas by an order of the 23d day of October last, for the reasons therein contained, it is ordered, that the injunction &c. should be dissolved, unless &c. Now, upon motion this day made unto this Court by Mr. H. being of the plaintiff's counsel, who came to shew cause against the said order, in the presence of Mr. P. of counsel for the defendant T. it was alleged, that the said defendant T. having put in an insufficient answer to the plaintiff's bill, the plaintiff hath taken exceptions thereto, since which the said defendant hath not thought fit to put in any other answer, although the said defendant's answer is very insufficient, as plaintiff is advised. And therefore it was prayed that &c. Whereupon and upon hearing Mr. P. of counsel for the defendant, and of what was alleged by the counsel on both sides, it is ordered that it be referred to Mr. E. one &c. to look into the plaintiff's bill and the defendant's answer, and the plaintiff's exceptions taken thereto, and certify whether the said defendant's answer be sufficient in the points excepted unto or not; but the plaintiff is to procure the said Master's report in four days (1), or in default thereof the said injunction is to stand dissolved without further motion, which in the mean time is hereby continued. Wheeler v. Trent, M. R. 12th November, 1747. Reg. Lib. B. 1747. fol. 6.

For like order. See Hand's Pract. 48. Equity Draftsman, 592.

NOTE.

(1) If the report is not procured within the four days the injunction is dissolved; but if the plaintiff procures a report against the answer, after the expiration of the four days, it is a motion of course to revive the injunction. Philips v. Johnson, 1 Dick. 292.

No. V.

ORDER TO ENLARGE TIME FOR SHEWING CAUSE AGAINST DISSOLVING INJUNCTION.

Whereas by an order of the 19th day of this instant, November for the reasons therein mentioned, it was ordered that the injunction &c. should be dissolved, unless &c. Now, upon motion this day made unto this Court by Mr. C. being of the plaintiff's counsel, it was alleged that the plaintiff is not prepared to shew cause against the said order. And therefore it was prayed that the time for the plaintiff's shewing cause against the said order may be enlarged to the first General Seal after this term, which is ordered accordingly; but the plaintiff is then to shew cause on the merits. Dennis, L. C. 28th November, 1747. fol. 17.

For like order. See Hand's Pract. 46.

Pearson v.

No. VI.

ORDER CONTINUING INJUNCTION TILL HEARING, THE PLAINTIFF GIVING JUDGMENT &c. Whereas by an order of the 27th day of May last, it was ordered that the injunction &c. should be dissolved, unless &c. Now upon opening the matter this present day unto the Right Honourable the Lord High Chancellor by Mr. Attorney-General, and Mr. P. being of the plaintiff's counsel, who came to shew cause against the said order, and moved, and offered divers reasons for the discharge thereof, and for continuing the said injunction, in the presence of Mr. J. of counsel for the defendants Todd and his wife. Whereupon and upon hearing of what was alleged by the counsel for the said parties, his Lordship doth order upon the plaintiff's giving unto the defendants judgment in the ejectment (1) already brought at law, in a fortnight, with a release of errors, (2) and consenting to bring no writ of error, that the said injunction be continued till the hearing of this cause, which the plaintiff is to speed; (3) but in default of the plaintiff's giving