Chap. XXIII.
Sect. 2.

Evidence

on motion to dissolve.

Motion to dissolve ex parte injunctions.

may
be made to that branch of the Court to which the cause
has become attached (r). Where, on appeal, an injunction
was granted but its operation was suspended, it was held that
an application for the further suspension of the injunction
might have been properly made to the Court of first
instance (s).

Upon motion to dissolve, the plaintiff has no right to insist that the motion shall stand over in order to give him time to cross-examine witnesses who have made affidavits for the defendant (t) affidavits filed in support of statements introduced by amendment after injunction granted, and tending to support the injunction, cannot be read on motion to dissolve that injunction (u).

If, on the motion to dissolve an ex parte injunction, it appear that the plaintiff has misstated his case, either by misrepresentation, or by the suppression of material facts, so that an injunction has been obtained which would not have been obtained if a more accurate statement of the case had been made, the injunction will be dissolved on that ground alone (r). The plaintiff will not be allowed to maintain it on the merits then disclosed (y). Nor can he be heard to say that he was not aware of the importance of the facts so misstated or concealed (z), or that he had forgotten them (a). A motion to discharge an ex parte injunction on the ground of its having been obtained by misrepresentation is proper, though the injunction is about to expire (b).

(r) Sturgeon v. Hooker, 1 De G. & S. 484.

(8) Shelfer v. City of London Electric Lighting Co., (1895) 2 Ch. 388 (C. A.).

(t) Normanville v. Stanning, 10 Ha. App. 20.

(u) Prince Albert v. Strange, 1 Mac. & G. 25, 47.

(x) Brown v. Newall, 2 M. & C. 570; Castelli v. Cook, 7 Ha. 94; Dalglish v. Jarvie, 2 Mac. & G. 243; Ross v. Buxton, W. N. (1888) 55; Boyce v. Gill, 64 L. T. 824, W. N.

(1891), p. 108; Schmitten v. Faulks, W. N. (1893), p. 64.

(y) Att.-Gen. v. Corporation of Liverpool, 1 M. & C. 211; Castelli v. Cook, 7 Ha. 94; Dalglish v. Jarvie, 2 Mac. & G. 238.

(z) Dalglish v. Jarvie, 2 Mac. & G. 241.

(a) Clifton v. Robinson, 16 Beav. 355.

(b) Wimbledon Local Board v. Croydon Sanitary Authority, 32 C. D. 421.

Sect. 2.

But even though the affidavits on which the injunction was Chap. XXIII. obtained may not have stated all the facts, there may not have been such misstatement or suppression as to lead the Court to grant the injunction (c). The plaintiff is only bound by the facts which he states, and not by his statements of the legal consequences arising from the facts stated (d). He is not bound to state facts supposed to raise some point of law in reality untenable (e). Nor, indeed, may his ignorance of the fact, that the act of which he complained was being put a stop to at the time when he applied for the injunction, amount to such a misrepresentation as to lead the Court to hold that the injunction was improperly obtained. It is enough if the facts were stated as they were shortly before the bringing of the action, and that the plaintiff was not aware of the fact at the time of the application of any further fact requiring to be stated (f).

The Court does not deal with the same severity and strictness in the case of an injunction obtained on notice, as with an injunction obtained ex parte; but the circumstances of the case may be such as to call upon the Court to visit the plaintiff with the same severity (g).

A man who has obtained an ex parte injunction which is Where ex parte afterwards dissolved on the ground of concealment of material dissolved, injunction facts, is not precluded from making an application for another applicant may injunction on the merits (h).

again apply.

to dissolve.

If an injunction has been granted against two or more Who must move persons, each of them must move to dissolve. If only one of the defendants applies, the injunction will not be dissolved as against the others (i).

Where a stranger to the action is affected by an injunction, he may, it seems, apply to have the injunction set aside (k).

Chap. XXIII.
Sect. 2.

Motion to discharge an order.

Irregularity of

The Court will not, on an application to discharge an order for irregularity, sustain it on the merits (1). Where an order has been made on motion and affidavit of service in the absence of parties, the Court will, on proper application, give the absent party leave to move to discharge (m). An injunc tion granted on affidavit will be discharged, if the plaintiff fails to appear before an examiner to be cross-examined on his affidavits (n). So also, where an ex parte injunction was granted upon the plaintiff undertaking to amend the writ by adding a party as co-plaintiff and upon the usual undertaking in damages and there was unreasonable delay in making the amendment, the injunction was dissolved (0).

Although an injunction may have issued, irregularly, the injunction may irregularity may be waived by any act of the defendant affirming the subsistence of a regular injunction (p).

be waived.

Acquiescence

under the order.

Consent to an injunction cannot be withdrawn.

After long acquiescence under an order for an injunction, an application for dissolving it will not be readily entertained (q). Where an order for an injunction had been made in a case where the Court had no jurisdiction, Lord Westbury would not discharge the injunction on the ground of the acquiescence of the defendant, but allowed it to stand, on the plaintiff entering into a certain undertaking ().

A party who has deliberately consented to a perpetual injunction cannot be permitted to withdraw his consent merely because he has subsequently discovered that he might have a good defence to the action (s).

(1) Brooks v. Purton, 4 Beav. 494; St. Victor v. Devereux, 6 Beav. 584.

(m) Mapp v. Elcock, 22 L. J. Ch. 707.

(n) O'Callaghan v. Barnad, W. N. (1875) 37.

(0) The Spanish General Agency Corporation v. The Spanish Corporation, Ltd., W. N. (1890), p. 158.

(p) Travers v. Lord Stafford, 2 Ves. 20; Vipan v. Mortlock, 2 Mer. 476.

(q) Glascott v. Lang, 3 M. & C.

451; Bickford v. Skewes, 4 M. & C. 500; Jennings v. Brighton, &c., Sewers Board, 4 D. J. & S. 747 n. ; Bell v. Hull and Selby Railway Co., 1 Ra. Ca. 616.

(r) Cardinall v. Molyneux, 4 D. F. & J. 117, 123.

(s) Elsas v. Williams, 54 L. J. Ch. 336, 52 L. T. N. S. 39. See, as to judgments by consent, diusworth v. Wilding, (1896) 1 Ch. 673; Wilding v. Sanderson, (1897) 2 Ch. 534 (C. A.).

SECTION III.—EFFECT OF CERTAIN PROCEEDINGS ON

Chap. XXIII.
Sect. 3.

INJUNCTIONS.

Under the former procedure an injunction was not dissolved Abatement. by the abatement of the suit in which it had been granted (t). Under the present practice an action does not become abated by reason of the marriage or death or bankruptcy of any of the parties, if the cause of action survive or continue; but an order may be obtained that the husband, personal representative, trustee or other successor in interest of such party be made a party to the action, or be served with notice thereof (u).

A plaintiff may, after obtaining an injunction, obtain an Effect of order to amend without prejudice to the injunction; and the amendment on injunction injunction, even if not expressly saved, will be unaffected, unless the record is changed, or the equity on which the injunction was obtained is displaced or materially altered by the amendment (x).

action.

If the action is dismissed the injunction is ipso facto dis- Dismissal of charged (y). A motion or order for its dissolution is not necessary. But the dismissal of the action does not prevent the plaintiff from bringing another for the same purpose under a different state of circumstances (z), or upon new facts (a).

If a motion for an injunction has been refused with costs, a second motion for the same object cannot be made until those costs have been either paid or secured by payment into Court (b).

(t) Ferrand v. Hamer, 4 M. & C.

147.

(u) Ord. XVII. r. 2.

(x) Harvey v. Hall, 11 Eq. 3. (y) Green v. Pulsford, 2 Beav. 70. (z) Mayor of Liverpool v. Chorley Waterworks Co., 2 D. M. & G. 852; Castelli v. Cook, 7 Ha. 89, 99.

(a) Att.-Gen. v. Sheffield Gas Co., 3 D. M. & G. 304, 341.

(b) Oldfield v. Cobbett, 12 Beav. 91; Burdell v. Hay, 33 Beav. 189. As to staying proceedings until costs of former proceedings for a similar object have been paid, see Martin v. Earl Beauchamp, 25 C. D. 12 (C. A.); M‘Cabe v. Bank of Ireland, 14 A. C. 412; and see also Ord. XXVI. r. 4, and the Vexatious Actions Act, 1896.

Chap. XXIII.
Sect. 4.

Where mischief has ceased.

Declaration of

right instead of injunction.

SECTION 1V.- -CONTINUING OR GRANTING INJUNCTIONS AT THE

HEARING.

An injunction which has been granted upon an interlocutory application is superseded by the judgment in the action. If it is intended that it should remain in force it must be expressly continued. Injunctions are continued after the trial of the action either provisionally or permanently. Injunctions are made perpetual at the trial for the purpose of protecting the plaintiff, when his right has been established, by putting an end to harassing and vexatious litigation, and preventing the repetition of illegal and unauthorised acts; or wherever a perpetual injunction is the appropriate remedy to give the plaintiff the complete relief to which he may have shown himself entitled (c).

An injunction will be granted on judgment in the action. when it is necessary for the purposes of complete justice (d), although it is not claimed in the writ of summons (e).

As a general rule an injunction can only be made perpetual at judgment in the action (f). But an injunction may by consent be made perpetual on motion (g).

Where the mischief sought to be restrained has ceased before the trial of the action, the plaintiff may nevertheless obtain his injunction (i).

Where the inconvenience to the defendants from granting an injunction would be very great, the Court will sometimes merely make a declaration of right in favour of the plaintiff, without granting an injunction (k).

(c) See ante, p. 25.

(d) Dickinson v. Grand Junction Canal Co., 15 Beav. 260.

(e) Reynell v. Sprye, 1 D. M. & G. 660; Blomfield v. Eyre, 8 Beav. 250.

(f) Day v. Snee, 3 V. & B.

171.

(g) Morell v. Pearson, 12 Beav. 284, ante, p. 27.

(i) Dean of Chester v. Smelting Corporation, W. N. (1901) 179; 85 L. T. 67: but see Dunning v. Grosvenor Dairies, Ltd., W. N. (1900) 265.

(k) See Islington Vestry v. Hornsey Urban Council, (1900) 1 Ch. 695 (C. A.); Smith v. Baxter, (1900) 2 Ch. 138. See also Llandudno Urban Council v. Woods, (1899) 2 Ch. 705,