243). If it be insisted on the part of the plaintiff that the two suits are not for the same purpose, it will be referred to the Master to inquire into the fact. (See the Ord. Ben. M. O. 30). After a decree in a creditor's suit, the Court will restrain a creditor of the testator from proceeding at law against the assets, but not from proceeding against the executors personally. (Kent v. Pickering, 5 Sim. 569). Although the time for excepting to the answer to an original bill may have expired, yet, if the plaintiff amends his bill, the defendant cannot obtain an order for the plaintiff to elect whether he will proceed at law or in equity, until the time for excepting to the answer to the amendments has expired. Whether that time is to be computed according to the old practice or the New OrdersQu.? (Leicester v. Leicester, 10 Sim. 87).

Effect of Lord Brougham's Orders.

THE injunction for want of appearance or answer is called the common injunction. By the 10th of Lord Brougham's Orders, it is ordered, ordered, "that in every cause for an injunction to stay proceed'ings at law, if the defendant do not plead, answer, or demur to the plaintiff's bill within eight days after appearance, the plaintiff shall be en'titled, as of course, upon tion;" and by the 11th,

injunction for want of

motion, to such injunc"that where a common

answer is awarded, the

order shall recite, as the ground for granting the

same, that the defendant has omitted to put in his

answer, plea, or demurrer, within the time limited 'by the Court in that behalf."

The practice as to obtaining the common injunction to stay proceedings at law is not substantially altered by these orders. By the former practice the injunction went as of course, if the defendant took out an order for time; but it being no longer necessary to take out an order for time, it became necessary to make this provision in order to meet the exigency growing out of the change of practice. The injunction to stay proceedings at law is granted of course, if the defendant do not appear or answer within the time limited, except he demur, and then if the demurrer be disallowed, (Francklyn v. Thomas, 3 Mer. 234); or plead and the plea be overruled; (Humphreys v. Humphreys, 3 P. W. 396); or refer the bill for scandal or impertinence, and the Master report in favour of the bill, (Martynv. Broughton, 3 Swanst. 232); the injunction follows of course. Although it is generally of great consequence for the plaintiff to get his injunction immediately, and though the defendant may plead or demur merely to gain time, yet the Court will not advance the plea or demurrer unless very pressing reasons be shown. (Jones v. Taylor, 2 Madd. 182; Anon. 1 Madd. 557).

SECTION 2.

Injunction for Want of Appearance.

If the injunction be issued for want of appearance, the plaintiff must leave an office copy of the affidavit of the service of subpoena with his clerk in court, with instructions to issue an attachment prepara

tory to an application to the Court for an injunction. The attachment, though issued, is not to be executed. If the injunction be for want of answer, an attachment must in like manner be issued but not executed. (Cousins v. Smith, 13 Ves. 167).

If the defendant be resident abroad, to entitle the plaintiff to an injunction, there must be an affidavit of merits, (that is to say), the plaintiff must verify the material allegations of the bill by affidavit. (Norris v. Kennedy, 11 Ves. 567). If some of the defendants are resident abroad, and the others in this country, the Court will not grant the injunction upon the latter being in contempt for want of answer, until there is an appearance or default of appearance of the rest, notwithstanding the usual affidavit. (White v. Klevers, 18 Ves. 471).

SECTION 3.

Injunction for Want of Answer.

AN answer, for the purpose of being good cause against the granting of a motion to extend the common injunction to stay trial, or for an attachment and injunction, must be filed at the latest by eight o'clock in the evening before the seal day-the principle of the Court seeming to be, that, as the order for an injunction, or to extend an injunction, or for an attachment, is to be considered as made on the very earliest moment of the seal day, the answer, in order to be used as an objection to the issuing of these orders, must be filed on the preceding day;

(Bruce v. Webb, 2 Mer. 474); and therefore, an answer sworn the day before, but owing to a mistake as to the office hours, not filed till the morning of the seal day, though put on the file at the earliest possible moment, will not do; (Ibbotson v. Booth, 1 Sim. 103); and therefore, also, an answer filed on the seal day is too late to prevent a motion to extend the common injunction, although the motion, owing to the pressure of business, was not made till the day after. (Whitehouse v. Hickman, 1 Sim. & Stu. 103; and see Manning v. Adamson, 1 Sim. 510).

The Master's report is a nullity till it is filed, (Bea. Ord. Ch. 292); and therefore an injunction obtained as for want of answer, after the Master has signed his report of its insufficiency, but before it has been filed, is irregular. (Wynne v. Jackson, 2 Sim. & Stu. 226).

IT

SECTION 4.

Of the Motion for an Injunction.

may be observed generally, that the Court will not grant an injunction except on a bill filed, asking for it in the prayer for relief, (Savory v. Dyer, Amb. 70), and also in the prayer of process; (Wood v. Beadell, 3 Sim. 273); but if, after a decree, the defendant act in opposition to it, and in a manner likely to occasion irreparable mischief, the Court will then grant an injunction, although there may be no prayer for it.

Formerly an injunction, unless it were to stay waste,