5. Serving an injunction.

XIV. For the enjoyment of a privilege.

An injunction will be granted to secure to a party the enjoyment of a privilege conferred by statute, of which he is in the actual possession, and when his legal title is not put in doubt.(a)

As where a turnpike company, incorporated with the exclusive privilege of erecting toll gates, and receiving toll, had duly opened and established the road with gates, and certain persons, with a view to avoid the payment of toll, opened a by-road near the turnpike, and kept it open at their own expense, for the use of the public, by which travellers were enabled to avoid passing through the gate paying toll to the plaintiff.(b)

XV. Against commissioners charged with partiality.

An injunction will not lie to stay proceedings of commissioners, acting under an act of the legislature, on the ground of partiality, &c. where the charge of bad faith is fully repelled by the answer.(c)

Serving an injunction.

An injunction is served, by showing the original under seal, and delivering a true copy thereof to the party personally, unless the court, under particular circumstances, dispense with the personal service, as where the defendant at law cannot be found, or resides abroad; in such cases, the court will, upon affidavit, substitute a service upon his solicitor attorney.(d)`

If the original injunction be shown at the time of

(a) Croton Turnpike Company v. Ryder and others, 1 Chan. Rep. 611.

(b) bid.

(c) Haight and others v. Day and others, 1 Jolins. Chan. Rep. 18.

(d) Hinde, 559.

service, it must not be delivered in order to compare the same.(a)

It hath been held, that leaving it with the party's attorney or solicitor, clerk or servant, is good service.(b)

Proceeding upon a breach of an injunction.

Proceedbreach

Where an injunction is served, and the party is in ing contempt for breach thereof, the practice in England of junctions. is to give notice of motion to the adverse solicitor, that the party be committed to prison for breach of the injunction.(c)

Continuing injunctions.

Injunction may be continued on exceptions to an- 7. Injunctions swer.(d)

In some particular cases, the court will continue the injunction, after defendant hath fully answered equity, of bill.(e)

Injunction granted on merits, or on special cause of equity, commonly continues till hearing, unless plaintiff delays his suit.(ƒ)

Dissolving injunction.

continued.

All injunctions are dissolved upon motion in open. Dissolving court. If the same be obtained on attachment, for injunctions. want of appearance or answer, so soon as contempt is cleared, and answer filed, instructions must be given to counsel, to move to dissolve the injunction nisi, for the

(a) 2d Chan. Cases, 203.
(b) Hinde, 595. in notis.
(c) See 2 Chau. Cases, 205.

(d) Hinde, 595, 596.
(e) Idem. 2 Ves. 19.
(ƒ) Hinde, 597.

1

purpose of giving the adverse party opportunity to show cause why it should not.(a)

If an answer denies all the equity of the bill, the injunction to stay proceedings at law will be dissolved of course, otherwise it will be continued till the hearing, and where it may be necessary to ascertain any matter of fact for the information of the court, it must be on an issue at law awarded for that purpose.(b)

If all defendants are implicated in the same charge, the answer of all will, in general, be required; but if the defendant, on whom the gravamen of the charge rests, has fully answered, that may be sufficient.(c)

But where the answer of all the defendants can and ought to come in, yet if the plaintiff does not take the requisite steps, with all reasonable diligence, to expedite his cause, the injunction may be dissolved.(d)

As where an injunction had been granted to stay a suit at law, and some of the defendants had answered, but the plaintiff had neglected, for nine months, to take any steps to compel the other defendants to appear and answer, or to have the bill taken pro confesso against them, the injunction, was, on motion, dissolved.(e).

Affidavits, ex parte, are not allowed to be read in support of an answer, on a motion to dissolve an injunction.(f)

Where a bill, on which an injunction was issued, to stay proceedings at law, in an ejectment, suit, charges the deeds on which the defendant sets up his title at law to be fraudulent, the injunction will not be dissolved on coming in of an answer, unless it be full and sa

() Minde, $97.

(0) Hoffman v. Livingston, 1 Johns Chan. Rep. 211. Eastburn & Downes v. Kirk, 1 Johas. Chan. Rep. 444.

9 Johns. Chan. Rep. 143.

(d) Ibid.

(e) Ibid.

(S) Roberts & Boyd, v. Anderson,

(e) Depsyster v. Graves and others, Johns. Chan. Rep.202.

tisfactory as to the fraud, but will be continued until the hearing.(g)

Stating that the defendants were not privy to any fraud, and were bona fide purchasers; that they believe the title was good, and that they do not know or believe, that the deeds under which they derive their title was fraudulent, is not sufficient.(h)

The granting and continuing of injunctions rests in the discretion of the court, to be governed by the nature and circumstances of the case.(i)

An injunction, will in general, be dissolved when an answer comes in, and denies all the equity of the bill. S. C.(j)

If a party obtaining an injunction to stay proceedings at law, neglects to deposit $100 at the time, pur suant to the 43d rule of the court, the irregularity will be cured by his depositing that sum,. before a motion is made to dissolve the injunction, but he must pay the costs of the motion.(k)

So, if he omits to enter the order for the injunction with the register, at the time, a subsequent entry of it, before motion, will cure the neglect, but he will have to pay costs (1)

Cases for not dissolving injunction are as follows: 1. Want of appearance or answer-2. Not having cleared contempts-3. Not having denied all equity4. Answer being reported insufficient-5. All defend ants not having answered 6. Plaintiff having equity on his case being heard-7. Because exceptions to answer came in too late. '

(s) Boberts & Boyd v. Anderson, 2

Johns Chan. Bep. 20%.

(A) Ibid.

(37) ZONI.

(j) 2 Johns. Chan. Rep. 205.

(*) Skinner v. Dayton and others, 2 Johna Chan. Rep. 226.

(1) Ibid.

alinjunction.

When irregularly obtained.

If any injunction be irregularly obtained, it is a mo- . tion, of course, to refer the same to a master, and if he reports the injunction irregularly issued, such report may be excepted to; the exceptions must be filedwith the register or assistant register, and argued in

court.

If no exceptions are filed, the court, on master's reports, will dissolve injunction, and sometimes commit the clerk in court for making out such injunction, and make him pay all costs, and sometimes the damages the injured party hath sustained by reason of such irregular injunction.(a)

Perpetual injunction.

10. Perpetu- Where the case may require it, the court will grant perpetual injunctions in the following instances:

1. Against proving a will in the spiritual court, or Court of Probates, (the same being found, on trial at law, to be no will.) Chan. Cas. 80.(b)

2. To stay action at law of several persons, where right had been heard and determined by one trial. (c) 3. On a bill taken pro confesso, by reason of the defendant's contempt in standing out all process.(d) 4. After two verdicts on trials at bar.(e)

5. Granted against a bond of fifty years standing. Chan. Cas.(ƒ)

6. On a decree for the performance of trusts.(g)