When copy 2 CH. XXXV. the Report office, and a note thereof made on the order by the § 3. Clerk of Reports. Where the original petition had been lost, the Court allowed the copy left for the use of the Judge to be filed instead of the original petition; and where a petitioner, whose petition had been dismissed with costs, refused to deliver up the original petition in order that it might be filed, leave was given to the respondents to file, in its stead, the copy of the petition with which they had been served. The petitioner must pay the costs of such an application.* filed instead of the original. Amendment of petition. Costs on petitions: Appearance by a party served, but not interested. 6 A petition may, by leave of the Court, be amended. The amended petition does not, in general, require to be reanswered ; ' and the amendments may state facts which have occurred since the presentation of the petition (but not since leave to amend it was given), or introduce the names of new co-petitioners. Leave to amend will be given, on the ex parte application of counsel. No formal order is usually drawn up; but the amendments in the original petition are made, or authenticated, by the secretary of the Lord Chancellor, or of the Master of the Rolls as the case may be, on production to him of counsel's brief, with his indorsement of the leave to amend, and containing the draft amendments. If necessary, the Registrar in Court will countersign the indorsement on the brief. Leave to amend is almost of course; it is often given at the hearing; 10 and has even been given after the order has been made." The amendments must not, however, state facts which would make the petition and order inconsistent. If the statements, proposed to be introduced by amendment, would have that effect, a new petition must be presented, stating such facts, and praying that the order may be varied.12 A party to a cause, who is served with a petition, but has no interest in the order to be made, will not be allowed his costs of appearing at the hearing.13 The same rule has also been applied 11 Hislop v. Wykeham, 3 W. R. 286, V. C. K.; Re Bunnett, 1 Jur. N. S. 921, V. C. W.; Re Havelock (No. 2), 14 W. R. 174, V. C. W.; contra, Re Marrow, C. & P. 142, 146. 12 Re Keen, 7 W. R. 577, V. C. K.; but see Re Havelock, 11 Jur. N. S. 906; 14 W. R. 26, V. C. W., where a supplemental order was made on the petition. But subsequently the petition was amended and a new order made. S. C. (No. 2), 14 W. R. 174, V. C. W. 18 Garey v. Whittingham, T. & R. 405; Templeman v. Warrington, 1 J. & W. 377, n.; Barton v. Latour, 18 Beav. 526; Day v. Croft, 19 Beav. 518; Herman v. Dunbar, 23 Beav. 312; Sidney v. Wilmer, 31 Beav. 338; contra, Bamford v. Watts, 2 Beav. 201; Crawshay r. Thornton, 2 M. & C. 24; Bruce v. Kinlock, 11 Beav. 432; Rowley v. Adams, 16 Beav. 312; to petitions presented in matters, but it would seem that, in such a case, a respondent ought to be allowed his costs: as otherwise he would have no opportunity of obtaining the costs which he must incur in taking advice whether he ought to appear on the petition.2 3 CH. XXXV. § 3. opposition. A person who unsuccessfully opposes a petition may be allowed Unsuccessful his costs; but a person who appears without having been served,* or who is served in consequence of an unfounded claim which he Appearance has made," is not entitled to his costs. When a person is about to present a petition, he should consider whether any of the other parties interested can be co-petitioners, instead of respondents; and, if so, he should apply to them to join with him in the petition: otherwise, he may be ordered to pay the costs of such persons, if made respondents. Where two petitions are bonâ fide presented, for the same object, by different parties, the costs of both will be allowed; but where it is known that one petition has been presented, the costs of a second petition, for the same purpose, will not be allowed." Orders made upon petition may be discharged or varied on motion, where the application is made on the ground of irregularity. Thus, where the objection to the petition, and the order made thereupon, was, that they were intituled in a non-existing cause, the Court discharged the order on motion. If, however, the application is made on the merits, it must, as we have seen, be the subject of a regular rehearing; but the petition of appeal is considered as an original petition, and must, therefore, contain all the Strong v. Strong, 4 Jur. N. S. 943, V. C. 1 Re Justices of Coventry, 19 Beav. 158; Re Hertford Charities, 19 Beav. 518, n. (c); Re Birch, 2 K. & J. 369; and see Sidney v. Wilmer, ubi sup. 2 Re Third Burnt Tree Building Society, 16 Sim. 296; 12 Jur. 595; Ex parte Queen's College, 4 Jur. N. S. 19; 6 W. R. 9, V. C. S.; Re Burnell, 10 Jur. N. S. 289; 12 W. R. 568, V. C. K.; Eden v. Thompson, ubi sup. As to the costs of application, by petition, see Seton, 91 et seq.; Morgan & Davey, 31 et seq. 8 Ex parte Stevens, 2 Phil 772, 774. 4 Bennett v. Biddles, 10 Jur. 534, V. C. E.; Ex parte Christ Church, 9 W. R. 474, V. C. S. 5 Re Shrewsbury School, 1 M'N. & G. 85; Re Parry, 12 Jur. 615, V. C. E. 6 Melling v. Bird, 17 Jur. 155, V. C. K.; and see Haynes v. Barton, 1 Dr. & Sm. 483; 7 Jur. N. S. 699; Re Braye, 9 Jur. N. S. 454; 11 W. R. 333, V. C. K.; Re Long, 10 Jur N. S. 417, V. C. K.; Re Nicholls, 1 W. N. 93; 14 W. R. 475, 1 V. C. W. 9 7 Re Chaplin, 33 L. J. Ch. 183, V. C. W.; and see Re British & Foreign Gas Co., 11 Jur N S. 559; 13 W. R. 649, V. C. S. In Grover v. Stilwell, 21 Beav. 182, the M. R. said that it was his inflexible rule, on petitions for transfer of funds standing to a separate account, and in which no person other than the petitioner was interested, to allow 10/ to the solicitor for his costs, without taxation. The Registrars have his Honor's directions to insert that sum in all such cases. Seton, 94. For a bill of costs, on a petition, see Morgan & Davey, 490. Costs of petition prepared, but not presented, allowed; it having been ascertained that another petition for the same purpose had been presented. Re Saville, 14 W. R. 603, V. C. W. 8 West v. Smith, 3 Beav. 306; and see Binsted v. Barefoot, 1 Dick. 112, Bishop v. Willis, 2 Ves. S. 113; Clutton v. Pardon, I. & R. 301, 303; Ostle v. Christian, ib. 324; Eastwood v. Glenton, 2 M. & K. 280; Lees v. Nuttall, ib. 284; Barnardiston v. Gibbon, cited, ib. 287. 9 Ante, p. 1472. without service. Application to co-inter ested parties to join in petition. Costs of two petitions for same object: when allowed. How orders may be dison petition charged or varied. CH. XXXV. statements which were properly inserted in the former petition.1 § 3. No deposit is necessary; but it must be signed and certified as proper by two counsel, as in the case of a petition for the rehearing of a cause. No deposit, but certifi cate of coun sel, neces sary, on appeal. Presentation, service, and setting down of appeal petition. Reception of new evidence, on appeal. The petition is presented and served, in the same manner as an original petition; and will be set down on one of the days appointed for the hearing of appeal petitions. The rules as to the reception of new evidence, in the case of appeals from orders made on petition, are the same as in the case of appeals from orders made on motion. 1 Ante, p. 1478; Richards v. Platel, C. & P. 79, 84. For forms of notice of appeal motion, and petition of appeal, see Vol. III. 8 2 Seton, 1156. A WRIT of injunction is a judicial process, whereby a party is Nature of required to refrain from doing a particular thing, according to the injunction. exigency of the writ.' The process is, therefore, rather preventive than restorative: though it is not confined to the former object.' Injunctions are either provisional or perpetual. Provisional Injunctions injunctions are such as are to continue until a certain specified 1 As to mandatory injunctions, see Knapp v. Douglas Axe Co., 13 Allen, 1; Beadel v. Perry. L. R. 3 Eq. 465; Senior v. Pawson, L. R. 8 Eq. 330; AttorneyGeneral v. Mid-Kent Railway Co. & South Eastern Railway Co., L. R. 3 Ch. Ap. 100. 2 As to injunctions in Equity, see Add. Cont. 1086; Drewry on Inj.; Eden on Inj.; Jeremy on Eq. 307; 2 L. C. Eq. 504-537; Seton, 867-961; Story Eq. Jur. §§ 861-959; Winnipiseogee Lake Co. v. Worster, 29 N. H. 449; Washington University v. Green, 1 Md. Ch. Dec. 97; 2 Story Eq. Jur. §§ 861, 862. It seeks to prevent a meditated wrong more often than to redress an injury already done. It is not confined to cases falling within the exercise of the concurrent judisdiction of the Court; but it equally applies to cases belonging to its exclusive and to its auxiliary jurisdiction. 2 Story Eq. Jur. § 862; Jeremy on Eq. Jur. B. 3, c. 2, § 1, p. 308. The most common sort of injunctions is that, which operates as a restraint upon a party in the exercise of his real or supposed rights; and this is sometimes called the remedial writ of injunction. The other sort, commanding an act to be done, is sometimes called the judicial writ, because it issues after a decree, and is in the nature of an execution to enforce the same; as, for instance, it may contain a direction to the party defendant to yield up, or to quiet, or to continue, the possession of the land, or other property, which constitutes the subject-matter of the deeree in favor of the other party. 2 Story Eq. Jur. § 861; Eden on Injunct. Ch 1 (2d Am. ed.), 9-13; see Knapp v. Douglas Axe Co., 13 Allen, 1. An injunction is a secondary process (except it be for the prevention of torts, or in cases affected by statute), and must be asked in aid of some primary equity, which must be disclosed in the same bill that prays for the injunction. Washington v. Emery, 4 Jones Eq. (N. C.) 29; Patterson v. Miller, 4 Jones Eq. (N. C.) 451. Where there is no equity in the bill there can be no injunction. Smith v. Lard, 28 Geo. 425. The interdicts of the Roman law, which much resembled the injunctions of our own law, were, (1.) Prohibitory, which prohibited something being done. (2.) Restoratory, which commanded something to be restored. (3.) Exhibitory, which commanded some person or thing to be exhibited. Lord Mackenzie, Roman Law (ed. 1862), 310 et seq.; 1 Kaufmann's Mackeldey, 211 et seq. In Stone v. Hobart, 8 Pick. 464, 466, the Court in Massachusetts say, "We have no power in Chancery, except by statute; and the general authority to issue injunctions has not been given. The exercise of such a power exists only when the subject-matter falls within the jurisdiction granted by the legislature." "Injunctions against proceedings at Law are within the general jurisdiction of Chancery, which we are not authorized to assume." But the powers of the Court are very much enlarged under the General Statutes, and applications to restrain proceedings at Law in proper cases would now be entertained, the authority being clear and indisputable. See Atlas Bank v. Nahant Bank, 23 Pick. 480, 492; Deshon v. Foster, 4 Allen, 545, 550. In New Hampshire, writs of injunction may be granted whenever the same shall be necessary to prevent injustice. Wason v. Sanborn, 45 N. H. 171. are either provisional or perpetual. § 1. CH. XXXVI. period: such as, the coming in of the defendant's answer; or the hearing of the cause. Perpetual injunctions are such as form part of the decree made at the hearing, upon the merits, whereby the defendant is perpetually enjoined from the assertion of a right, or perpetually restrained from the commission of an act which would be contrary to equity and good conscience. Not usually unless prayed cree, to pre vent it from being questioned; As a general rule, an injunction or restraining order will not be granted before decree, unless prayed for by the bill. At the hearing, however, the Court will, where it is necessary for the purposes of complete justice, direct an injunction to issue: although it has not been prayed by the bill; and where the Court, having full cognizance of the matter, has, by its decree, taken it into its own hands, it will, on the application of the defendant, as well as the plaintiff, interfere, by its injunction or restraining order, to prevent its decision from being questioned in another Court; or to restrain the bringing of actions inconsistent with the spirit of the decree: although no injunction has been prayed by the bill. The or protect the Court will also, under similar circumstances, interfere, to prevent injury to the property, either by the parties litigant or others. Thus, if, after a decree to account in a foreclosure suit, the mortgagor attempts to cut timber, the Court will enjoin him, although there is no injunction prayed by the bill." property. Against actions at Law by creditors, after administration decree. 5 Upon the same principle, if there has been a decree for the administration of assets, the Court will restrain a creditor, who is not a party to the suit, from proceeding at Law against the testa 1 Formerly, provisional injunctions were divided into common and special injunctions; but this distinction has now been abolished. 15 & 16 Vic. c. 86, § 58; Ord. XXV.; see Senior v. Pritchard, 16 Beav. 473; Lovell v. Galloway, 17 Beav. 1; Magnay v. Mines Royal Co., 3 Dr. 130. Injunctions cannot be granted in the Courts of the United States without notice, and hence all of them in those Courts are special. Penny . Parker, 1 Wood. & M. 280; see 1 Hoff. Ch. Pr. 78; 1 Smith Ch. Pr. (2d Am. ed.) 591 note (a); Elmslie v. Delaware & Schuylkill Canal Co., 4 Whart. 424; Poor v. Carlton, 3 Sumber, 73, 74; Hall v. M'Pherson, 3 Bland, 529. By the 55th Equity Rule of the United States Courts, whenever an injunction is asked for by the bill to stay proceedings at Law, if the defendant do not enter his appearance and plead, demur, or answer to the same within the time prescribed therefor by these rules, the plaintiff shall be entitled as of course, upon motion without norice, to such injunction. But special injunctions shall be grantable only upon due otice to the other party by the Court in term, or by a Judge thereof in vacation, after a hearing, which may be ex parte, if the adverse party does not appear at the time and place ordered. In every case, where an injunction, either the common injunction, or a special injunction, is awarded in vacation, it shall, unless previ ously dissolved by the Judge granting the same, continue until the next term of the Court, or until it is dissolved by some other order of the Court. See Penny v. Parker, in note above. 2 Ld. Red. 46, n. (z); Savory v. Dyer, Amb. 70; Wright v. Atkvns, i V. & B. 313, 314; Wood v. Be dell, 3 Sim. 273. For forms of prayer, see Vol. III. 3 Blomfiel v. Eyre, 8 Beav. 250, 259; 9 Jur. 717; Reynell v. Sprye, 1 De G., M. & G. 660, 690. 4 Wedderburn v. Wedderburn, 2 Besv. 208, 213; 4 Jur. 66; 4 M. & C. 585, 593, 596; Booth v. Leycester, 1 Keen, 579. 5 Walker v. Micklethwait, 1 Dr. & Sm. 49. 6 Grand Junction Canal Company v. Dimes, 17 Sım. 38; 13 Jur. 779; see Matter of Hemiup, 2 Paige, 319. 7 Wright v. Atkyns, 1 V. & B. 313, 314; Goodman v. Kine, 8 Beav. 379; Casamajor v. Strode, 1 S. & S. 381; and see Walton v. Johnson, 15 Sim. 352; 12 Jur. 299; King v. Smith, 2 Hare, 239, 242; 7 Jur. 694. |