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the bill," and can not arrest the issue of an injunction, or authorize a dissolution of it if one has been granted.

United States v. Parrott, 1 McAll. 271.

Answer-Information and Belief.-The court will not dissolve a preliminary injunction upon a denial of the equities of the bill upon information and belief, nor upon affirmative allegations of new matter meeting the equities of the bill made only upon information and belief.

Cole S. M. Co. v. Virginia W. Co., 1 Saw. 686.

Matter in Avoidance.-On a motion to dissolve an injunction, matters set up by way of avoidance in the answer responsive to the bill should be deemed, on such motion, equivalent to an affidavit by the defendant. Such matters, on final hearing, must be proved by the defendant.

United States v. Parrott, 1 McAll. 271.

Answer-Affidavits.-As to the effect of answer and affidavits in general and special injunctions, see Maden v. Veevers, 5 Beav. 503.

Affidavits.-Neither bill nor answer can be supported by affidavits as to title. So held on motion to enjoin working New Almaden quicksilver mine.

United States v. Parrott, 1 McAll. 271.

The admissibility of affidavits on the question of waste considered.

United States v. Parrott, 1 McAll. 271.

Waste-Affidavits.-It seems affidavits may be read by the plaintiff in contradiction of an answer that acts of waste were not done or threatened.

Norway v. Rowe, 19 Ves. 144.

Waste-Practice.-It has become almost a matter of course to grant an injunction to stay waste.

Smith v. City of Rome, 19 Ga. 89.

Incidental Account for Waste.-An account for waste done is incidental to relief by injunction against future waste, and is directed on the principle of preventing multiplicity of suits.

Ackerman v. Van Houten, 4 Halst. Ch. 476.

Account, when Incident.-Distinction between the cases in which the right to an account is incident to the injunction and the cases where it is independent of such relief, with especial reference to the case of mines and timber.

Parrott v. Palmer, 3 Myl. & K. 632.

Accounting.-Upon a bill going only for an injunction to restrain part owners from interfering with lessee's salt-works, an accounting can not be ordered.

Stuart v. White, 25 Gratt. 300; Mitchell v. McCall, Id.

But in connection with another bill between owners in the same court, the order to account may be made in both cases. Stuart v. White, 25 Gratt. 300; Mitchell v. McCall, Id.

With Account-Plaintiff Disseised.-No injunction will be allowed in cases of trespass with an account, where the complainants (being disseised) can not maintain an action for mesne profits.

Bracken v. Preston, 1 Pinn. 584.

Practice Copyhold-Answer-Title.-Preliminary injunction granted to restrain the working of mines recently opened upon bill charging the lands to be copyhold, although the answer denied such averment, and asserted positively that they were freehold, and therefore belonging to the defendant; the court refusing, upon the special facts stated, to direct plaintiff to bring his action, the bill setting forth facts in support of the complainant's claim not denied by the answer.

Greenwich Hospital v. Blackett, 12 Jur. 151.

Nonsuit-New Trial.-A dissolution of a preliminary injunction should be granted upon a nonsuit as a matter of course; but if the cause is remanded for a new trial, the complainant is entitled to a renewal of the injunction.

Harris v. McGregor, 29 Cal. 124.

Dissolution.-An injunction granted at chambers without notice may be dissolved without notice.

Leitham v. Cussick, 1 Utah, 242.

But the order of dissolution can go no further than to undo the original order; it can not, before notice, order the reinstatement of parties dispossessed under the original order.

Leitham v. Cussick, 1 Utah, 242.

$707. Insolvency.-Where irreparable injury or inadequate relief at law is alleged, insolvency of the defendant need not be superadded.

Sierra Nevada M. Co. v. Sears, 10 Nev. 317.

Gold Mine-Insolvency-Effect of Answer.-Upon answer dis tinctly denying the equities of a bill, an injunction will be

denied. But an injunction granted on a bill based upon title in the complainant, the great value of the land as a gold mine, and the irreparable injury by defendants' digging the gold, and the insolvency of the defendants, will not be dissolved upon an answer setting up an affirmative title in the defendants, and denying no allegation of the bill except title and insolvency. Moore v. Ferrell, 1 Ga. 7.

Insolvency-Laches.-In view of the injury to a mine by suspending operations and the ruin of the machinery, and in consideration of five years' delay in bringing action, the insolvency of a defendant sought to be enjoined becomes immaterial.

Irwin v. Davidson, 3 Ired. Eq. 311.

Water Insolvency, etc.-An injunction to restrain the diversion of water ought not to be granted unless equitable circumstances, beyond the mere allegations of irreparable injury be shown; as insolvency, impediments to a judgment at law, or to adequate legal relief, or threatened destruction of the property, or the like.

Burnett v. Whitesides, 13 Cal. 156.

Trivial Damage-Insolvency-Discretion.-Upon bill for injunction to restrain miners from undermining the improvements on a milk ranch, where the court in its discretion refused the writ, the damage threatened being trivial: held, not such abuse of discretion as to be interfered with, although insolvency of the defendants was alleged in the bill, it being denied in the

answer.

Slade v. Sullivan, 17 Cal. 103.

After New Trial Granted.-If, in an action to try the right to a mining claim, a preliminary examination is granted on plaintiff's motion, and upon appeal to the supreme court a judgment in favor of plaintiff is reversed and a new trial granted, this granting of a new trial does not entitle the defendant to a dissolution or modification of the injunction.

Hess v. Winder, 34 Cal. 270.

$708. Practice after Recovery in Trespass in California.-In an action for a trespass upon a mining claim, where the complaint avers that the defendants are working upon and extracting the minerals from the claim, and prays for a perpetual injunction, and the answer admits the entry and work, but takes issue upon the title, if a jury to whom the issue of title is submitted find in favor of the plaintiffs, it is the duty of the court to decree the

equitable relief sought, and enjoin defendants from future trespasses.

McLaughlin v. Kelly, 22 Cal. 211.

The complaint charged that the defendants had wrongfully entered upon a tract of mining ground (described by metes and bounds) owned by the plaintiff, and had extracted therefrom gold-bearing earth of the value of $1,000; and that they threatened to continue their wrongful acts, and prayed for damages in the sum of $1,000, and for a perpetual injunction. The answer set up title in defendants to a specific portion of the tract claimed by plaintiffs, and denied that they had worked upon any portion than that to which they thus asserted title.

McLaughlin v. Kelly, 22 Cal. 211.

Plaintiffs sued for damages by reason of alleged trespasses upon a certain portion of quartz mining claim, averred in the complaint to be the property and in the possession of the plaintiffs, and alleging further the insolvency of defendants, asking an injunction against further trespasses, which was granted. The defendants denied all the allegations of the complaint, and averred ownership. The jury found generally for the defendants, but the court below refused to dissolve the injunction: held, 1. That the action amounted to an action of trespass, with an injunction in aid; 2. That the action having failed, the injunction should go with it; 3. That an ancillary writ should abate with the suit which it supported, plaintiffs having failed to prove that which would have been necessary to maintain their suit; although the action need not be considered as deciding the question of title, nor as debarring plaintiffs from proceeding for original relief for irreparable injury going to the destruction of the inheritance.

Brennan v. Gaston, 17 Cal. 372.

California Practice.-A claim for damages for trespass committed, and a prayer for injunction to prevent further waste, may be joined in the same complaint.

Moore v. Massini, 32 Cal. 590.

Defendants being enjoined from working a mine, it does not follow that a receiver should be appointed to take charge of it; such appointment must depend upon circumstances.

United States v. Parrott, 1 McAll. 271.

Definite Decree-Railroad Bridge.-In injunction against mining, "in such manner as to affect the stability of the Victoria

bridge, or the railway, or other works of the plaintiffs in the bill mentioned," is not too indefinite. The distance within which the works of the mine could approach could not be determined a priori, and the defendant is bound at his peril to observe the rule as expressed in the writ.

North Eastern R. Co. v. Elliott, 30 L. J. Ch. 160.

Appearance Practice.-A court of chancery, where the sole object of a bill filed is to obtain an injunction, will not allow that object to be resisted without holding the defendant to a general appearance in the action.

Thornborough v. Savage M. Co., 1 Pac. Law Mag. 267, U. S. C. Ct.,
Baldwin, J.

Contempt.-When an injunction granted on an ex parte application was modified on motion of defendant, without notice to plaintiff, on defendant's giving bond: held, that subsequent acts of defendant in violation of the original injunction were not in contempt.

Fremont v. Merced M. Co., 9 Cal. 19.

The remedy of the plaintiff, if there was error in the order modifying the injunction, is by appeal; but he can not have a mandamus to compel the issuance of attachment for contempt. Fremont v. Merced M. Co., 9 Cal. 19.

Writ against Mine in Another County.-The court of chancery, in a county where the parties are found within the jurisdiction. of the court, may grant an injunction to prevent the opening or working of mines situate in another county, and enforce the writ through the defendants personally.

Munson v. Tryon, 6 Phila. 395.

Injunction against Plaintiffs—Utah Practice.—Where plaintiffs allege ownership of a lode claim, and prayed an injunction to restrain defendants' working, and the defendants' answer not only denied plaintiffs' allegations, but stated that plaintiffs were working the lode and property of the defendant: held, that under the practice act of Utah the court had power to enjoin the plaintiffs from working.

Smith v. Richardson, 1 Utah, 245.

§ 709. On Appeal-Interference with Injunction Pending Appeal.-Plaintiffs obtained a preliminary injunction restraining defendants from obstructing a road leading to plaintiffs' mine. Upon the answer being filed the injunction was dissolved. Plaintiffs being about to appeal from the order dissolving the

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