Buckley v. Corse

The Chancellor. It is now moved to dissolve the injunction on two grounds :— 1. Because allowed without notice, and therefore irregular; it being a special injunction, which cannot be granted on an ex-parte application, after appearance. Such is, no doubt, the English rule : Marasco v. Boiton, 2 Ves. 112; Wyatt Prac. Reg. 238 ; 1 Newl. 219. According to the English practice, injunctions are applied for, sometimes before answer, and sometimes after, upon the merits disclosed. If great injury would likely ensue by waiting till an answer is put in, the injunction will be granted before answer. In like cases, the court will in some instances grant an injunction upon an exparte application, even after appearance: Harrison et al. v. Cockrell et al., 3 Mer. 1; 1 Newl. 219. Tn the English books, a distinction is made between common and special injunctions. When an injunction issues for a default of the defendant, either in appearing or answering, it is called a common injunction. Special injunctions are such as are granted only upon special application to the court. According to our practice this distinction is not of much importance. All injunctions here are granted upon special application; and these applications are generally made exparte on filing the bill. Whether notice shall be given depends upon no settled rule of practice, but on the nature of the case. If it be one of difficulty and importance, the court will generally require notice to be given. [508] I do not consider it necessary, in cases where an injunction is applied for after filing the bill, and after the defendant has appeared, that notice of the application should be given, merely because there has been an appearance. The application may be made without notice, and, if it be a case that requires it, notice will be ordered. Where the application is made after answer filed, notice is necessary, according to the thirtieth rule of practice, but even then it may be dispensed with by the chancellor. If this is to be considered as an application after answer, the injunction being without notice, is irregular, unless the notice was dispensed with by the master, and the presumption is that this was done. If there wras no dispensation, the court would not set aside the injunction simply for that reason, if it appeared to be a case in which the rule might properly have been dispensed with, but would retain it, and order the complainant to pay the costs of the application. The difficulty in this case arises from the fact, that this is an amended bill; that the injunction issued on filing the original bill has been dissolved upon the merits on the coming in of the answer, and that now after amending the bill, a second injunction has been granted without notice. We have no rule of practice extending to such a case. The English practice requires a notice: Edwards v. Edwards, 2 Dick. 755. Some of the later authorities maintain that in addition to the notice, the defendant must be in default for not answering, before the injunction will be awarded : James v. Downes, 18 Ves. 522. From the whole taken together, it is plain that when a bill has been amended after injunction dissolved, a party cannot take the ordinary injunction nisi. There must be an application upon the merits ; and in such cases notice is required. According to our practice all injunctions are granted upon application, and are upon the merits, and may be considered as special injunctions in one sense of the term ; but it does not follow that notice is to be given in all cases. Our rules require it in one case only, and even then it may be dispensed with, as has already been mentioned. From this circumstance, and from analogy to our practice, I am of opinion that notice was not indispensable to the application, and that it [509] rested with the master to determine whether it should be given or not. 2. The second reason assigned is, that the amendment was unwarranted by the practice of the court, inasmuch as the merits of the case must be disclosed in the original bill; that here the injunction is upon a new case made in the amended bill. The general principle is, that a party is bound to state all his case in his first bill; but the practice of the court is very liberal as to amendments. If the plaintiff, after filing his bill, dicovers that he has omitted to state any matter, or to join any person as party to the suit, he may supply the defect by amendment. Or, if the defendant has answered, and the plaintiff thereby obtains further knowledge of facts or circumstances which may aid him in the cause, he may amend his bill and proceed according to the information thus obtained ; and in general, any imperfection in the frame of a bill may be remedied as occasion shall require, provided the application for that purpose be made in proper time: Coop. Eq. Pl. 333. Before replication, the order to amend is granted of course: 1 Newl. 192. Injunction bills have frequently been amended without prejudice to the injunction, and even amended a second time; but the application for such second amendment must disclose its nature with precision, and must be founded on affidavit that complainant had not a knowledge of the facts, so as to enable him to bring that case upon the record sooner: Sharp v. Ashton, 3 Ves. and B. 144. I am not aware that such strictness of practice has obtained upon first amendments. They are frequently allowed on the coming in of the answer, without special affidavits, upon such terms as are reasonable. My opinion is, there is nothing objectionable as to the time of the amendment, and that an affidavit disclosing the facts was not necessary. I have had doubt as to the extent of the amendment. The bill has been redrawn, and changed to a bill to redeem. There is not merely a variation of the prayer for relief, for then the amendment might be made after publication : 5 Ves. 485. The facts are so stated in this last bill, as to be altogether incompatible with the prayer of the first. There are no new facts that are very material, but the equity rests on different grounds. [510] The gravaven of the bill as first presented was, that the complainant had an absolute title to the property, older than the defendant’s mortgage ; that being ignorant of that fact, and supposing the mortgage to be prior, he agreed to pay it, and gave to the defendant a deed for the premises, subject to a right of redemption, and thereupon paid large sums of money ; and that he had lately become acquainted with the fact that his title was anterior to the defendant’s. Upon this state of the case, he prayed that the defendant might account to him for the money he had wrongfully received, and which had been paid to him through misapprehension. In the amended bill, he admits his mistake in supposing his title older than the defendant’s, but insists upon the other facts stated, that the deed given to the defendant was in equity a mortgage, and subject to redemption, and that he had paid large sums of money in part discharge of the debt. The prayer is for leave to redeem. It is very clear, that after an injunction dissolved on the merits, the party may amend and obtain an injunction on the amended bill. The amendment may be founded on facts disclosed in the answer. There must always be new facts and charges in the amended bill, and these must be material, or a new injunction would not be ordered. New relief may be prayed and new parties added, and the bill must be framed so as to meet the exigency of the case. One fact often changes the whole equity of the complainant’s case, and calls for different relief. The cases on the subject of amendment are without number, and it is difficult to draw from them any broad principle, or draw a line beyond which the complainant may not pass in changing his case. Modern authorities have gone very far. Thus in Mavor v. Doy, 2 Sim. and Stu. 113, the plaintiff by his original bill sought to set aside a deed. After answer filed, he amended his bill, under the usual order, and presenting a different stale of facts, sought to establish the deed, and it was allowed. I feel no disposition to aid the complainant further than justice requires. His first bill was certainly drawn in haste, and without a proper knowledge of facts with which he could easily have made himself acquainted ; but it would savor of harshness to see him turned out of possession without the privilege of being [511] heard. I incline upon the whole to overrule the present application and permit the injunction to remain ; but the complainant must pay the costs of the original bill and all the proceedings up to the filing of the amended bill, and also the costs of this motion.