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Act of December 21, 1818-January 1, 1820. R. C. ch. 66.

out costs; but if any defendant insists on the sufficiency of his answer, or neglects or refuses to put in a sufficient answer, or shall put in another insufficient answer, the plaintiff may set down his exceptions, to be argued the next term in court;(a) and, after the expiration of such rule, or any second insufficient answer put in, no farther or other answer shall be received, but upon payment of costs. Ibid.

105. § 90. If, upon argument, the complainant's exceptions shall be overruled, or the defendant's answer adjudged insufficient, the complainant shall pay to the defendant, or the defendant to the complainant, such costs as shall be allowed by the court. Ibid.

106. § 91. Upon a second answer adjudged insufficient, costs shall be doubled. Ibid.

107. § 92. If a defendant shall put in a third insufficient answer, which shall be so adjudged, he or she may be examined upon interrogatories, and committed until he or she shall answer them and pay costs. Ibid.

108. § 93. If the defendant, after process of contempt, put in an insufficient answer, which shall be so adjudged, the complainant may go on with the subsequent process of contempt, as if no answer had been put in. lbid.

Ibid.

109. § 94. Rules to plead, answer, reply, rejoin or other proceedings not before particularly mentioned, when necessary, shall be given from month to month, with the clerk in his office, and shall be entered in a rule-book for the information of all parties, attorneys or solicitors concerned therein. [The rules shall be held monthly in vacation, and in term time on the first Monday in every month in the clerks' offices of the superior courts of chancery, and may be kept open for six days. Act of March 7, 1826, Ses. Acts 1825-6, c. 15, § 12; Sup. R. C. c. 103, p. 132, 133.] See ante, No. 84.

110. 95. No defendant shall be admitted to put in a rejoinder, unless it be filed before the expiration of the rule to rejoin; but the complainant may proceed to set his cause down for hearing. Ibid.

111. § 96. After an attachment with proclamation returned, no plea or demurrer shall be received, unless by an order of court, upon motion. Ibid. 112. § 97. If the complainant conceives any plea or demurrer to be naught, either for the matter or manner of it, he may set it down with the clerk to be argued ; (j) or if he thinks the plea good, but not true, he may take issue upon it, and proceed to trial by jury, as has been heretofore used in other causes in chancery, where trial hath been by jury; and if, thereupon, the plea shall be found false, the complainant shall have the same advantages, as if it had been so found by verdict at common law. Ibid.

113. § 98. If a plea or demurrer be overruled, no other plea or demurrer shall be thereafter received, but the defendant shall answer the allegations of the bill. Ibid.

114. § 99. If the complainant shall not proceed to reply to, or set for hearing as before mentioned, any plea or demurrer, before the second court after filing the same, the bill may be dismissed of course with costs. Ibid.

115. § 105. The courts, in their sittings, may regulate all proceedings in the office, and for good cause shewn, may set aside any dismissions, and reinstate the suits, on such terms as shall appear equitable. [No suit which shall have been dismissed in the office, or in court, shall be reinstated after the pe

(a) When exceptions are filed to an answer, they must be disposed of before any farther proceedings can take place in the cause. Clarke v. Tinsley's adm'r, 4 Rand.

250.

(j) See Mitford's Plead. 243, 244. A replication to a plea is an admission of the suf

ficiency of the plea as much as if it had been set down for argument and allowed; and all that the defendant has to do is to prove it in point of fact, and a dismission of the bill on the hearing is a matter of course. Hughes v. Blake, Mason, 515, 17; 6 Wheat. R. 453, 472-3.

Act of December 21, 1818–January 1, 1820. R. C. ch. 66.

riod of one year from the expiration of the term in which such dismission took place, or was made absolute. Act of March 7, 1826, Ses. Acts 1825-6, c. 15, 10; Sup. R. C. c. 103, § 10, p. 132.]

116. § 100. Upon a plea or demurrer argued and overruled, costs shall be paid as where an answer is judged insufficient; and the defendant shall answer within two calendar months after; but if adjudged good, the defendant shall have his costs. Ibid.(2)

117. § 101. If any defendant, after a demurrer shall have been overruled, shall refuse to answer, the bill shall be taken as confessed, and the matter thereof decreed. Ibid.

118. § 102. After any bill filed, and before the defendant hath answered,. upon oath made that any of the complainant's witnesses are aged and infirm, or going out of the country, the clerk may issue a commission for taking the examination of such witnesses de bene esse; the party praying such commission, giving reasonable notice to the adverse party, of the time and place of taking the depositions. Ibid.

119. § 103. Whenever a general commission shall issue for taking depositions upon answer and replication, six months from the time of the replication shall be allowed the parties for taking their depositions; and either party, at the expiration of the said six months,(k) may set the same for hearing; nor shall any deposition taken after that time, be read as evidence on the hearing, except the same was taken by the consent of the parties, by special order of the court, or out of the state. Ibid. [Whenever a general commission shall issue for taking depositions upon answer and replication in chancery, four months, from the time of filing the replication, shall be allowed the parties for taking their depositions; and either party, at the expiration of the said four months, may set the same for hearing; but any deposition, although taken after that time has elapsed, may be read as evidence on the hearing. Feb. 17, 1823, c. 37.] (1) [Either party, in any suit in chancery, may take depositions within this state without obtaining any commission for the purpose, to be read and have the same effect, in all respects, as if taken under a commission. See Act Jan'y 15, 1828, c. 26, § 3, Ses. Acts 1827-8, p. 21; Sup. R. C. c. 120, 3, p. 178.] See ante, No. 100.

Act of March 7, 1826, Ses. Acts 1825-6, ch. 15; Sup. R. C. ch. 103, p. 132. 120. 13. Whenever the answer of any defendant shall have been filed four months, he may set the cause for hearing as to himself, and he shall be entitled to a hearing accordingly, unless his interests be so connected with the interests of other defendants in the same cause, as that it would be improper to decide upon those interests separately; in which case such defendant shall be entitled to a dismissal of the plaintiff's bill, unless he diligently pursue the necessary measures to mature the cause for hearing, as to the other defendants. 121. § 14. All causes which shall be prepared for a hearing, agreeably to the provisions of this act, shall be docketed, called and disposed of at the term to which they shall be so prepared; and if the court shall refuse to try any such cause, or continue it, without good cause shewn, the party asking for a trial may have his application spread upon the record, with a true statement of the facts relative thereto; upon such statement, it shall be lawful for the court of

(2) In Virginia a defendant in chancery may at the same time answer and demur to the same matter in the bill; dissentiente Tucker, P. Bassett's adm'r v. Cunningham's adm'r, 7 Leigh, 402.

(k) Dalby v. Price, 2 Wash. 191; Quar

rier v. Carter's repr. 4 H. & M. 242; but

see am. 1823.

(1) See act March 7, 1826, Sess. Acts 1825-6, c. 15, § 9, p. 17, Sup. R. C p. 132; also, January 15, 1828, Sess. Acts 1827-8, ch. 26, p. 21, Sup. R. C. p. 178.

Act of March 7, 1826, Ses. Acts 1825-6, ch. 15. Sup. R. C. ch. 103, p. 133.

appeals upon the application of the party injured, to award a mandamus, and compel a trial of the cause, upon the proofs as they existed at the time when it was erroneously continued, or the trial was improperly refused.

Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109.

122. 39. The said circuit superior courts of law and chancery, as courts of chancery, shall always be open to grant injunctions, writs of ne exeat, certiorari and other process heretofore usually granted in vacation, [and for granting writs of prohibition and mandamus. Act of March 27, 1837, Ses. Acts 1836-7, c. 57, p. 37.]

123. 40. The circuit superior courts of law and chancery, sitting in chancery, respectively, shall have jurisdiction and authority in term, to grant injunctions to their own judgments at law, or to the judgments of the inferior courts of the counties or corporations within their jurisdiction, and in all cases where the act or proceeding enjoined, is doing, or to be done, within their own jurisdiction, respectively; and to grant writs of ne exeat, in cases where the party or parties against whom such process may be issued, reside or are found within their jurisdiction respectively.

124. § 41. The judges of the said circuit superior courts, shall each have and exercise a general jurisdiction, in awarding injunctions and writs of ne exeat,(1) whether the judgment or proceeding enjoined, be rendered by a superior or inferior court, within or without their respective circuits, or the party against whose proceeding the injunction be asked, or against whom a writ of ne exeat be awarded, be a resident within or without the circuit of such judge awarding the same; but the order of such judge awarding an injunction to a judgment or proceeding, not within his circuit, shall be directed to the clerk of the court of that county or corporation in which such judgment shall be rendered, or proceeding apprehended; on which, such proceedings, in all respects, shall be hereafter had, as if the order had been made by the judge in whose circuit such judgment may have been rendered, or proceeding had or apprehended. And when such judge of any of the said circuit superior courts, shall order a writ of ne exeat, against any person whatever, he shall direct the said order to the clerk of one of the most convenient courts of his own circuit; and the said clerk, on the execution of the bond required by law, shall issue such writ of ne exeat, which shall be directed to any sheriff into whose hands the same may come.

Act of December 21, 1818–January 1, 1820. R. C. ch. 66.

125. § 110. Writs of ne exeat shall not be granted, but upon a bill filed and affidavits made to the truth of its allegations, which being produced to the court in term time, or to the judge in vacation, such writ may be granted or refused as shall seem just; and if granted, he shall direct, to be endorsed thereon, in what penalty bond and security shall be required of the defendant. Ibid.

126. § 111. If the defendant shall by answer satisfy the court, that there is no reason for his restraint, or give sufficient security to perform the decree, the writ may be discharged; or it may be discharged by the judge in vacation; provided reasonable notice be given of the time of making the motion. Ibid. and act Jan. 1798, c. 223, R. C.

127. § 112. No injunction shall be granted to stay proceedings in any suit at law, unless the matter in dispute be of value sufficient to admit of original jurisdiction in the said superior courts of chancery; nor unless the court in

(1) See JUDICIARY, (County and Corporation Courts,) Nos. 12, 13, notes (e) (ƒ) (g).

Act of December 21, 1818–January 1, 1820. R. C. ch. 66.

term time, or the judge thereof in vacation, shall be satisfied of the plaintiff's equity, either by affidavit, certified at the foot of the bill, that the allegations thereof are true, or by other means, and shall order the same.

R. C.(3)

1792, c. 64,

128. § 113. Where any injunction shall be granted, the clerk shall endorse on the subpoena, that the effect thereof is to be suspended, until the party(1) obtaining the same shall give bond with sufficient security, in the office of the court in which the judgment to be enjoined shall have been obtained.(2) Ibid. 129. 114. The party obtaining the injunction, shall then enter into bond with sufficient security,(4) and file the same in the clerk's office of that court in which the proceedings at law were had, for paying all money and tobacco, and costs due, or to become due, to the plaintiff in the action at law, and also all such costs and damages, as shall be awarded against him or her in case the injunction shall be dissolved;(m) and the clerk shall endorse on the subpæna that the bond is filed. Ibid.

Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109.

130. § 42. In all cases, where hereafter any(r) injunction shall be wholly dissolved, the bill of the complainant shall stand dismissed of course, with costs, unless sufficient cause be shewn against its dismission at the next term, where the same shall be in any of the circuit superior courts of law and chancery, and where the same shall be in any of the inferior courts, at or before the second court(s) thereafter, whether monthly or quarterly. And it shall be the duty of the several clerks of the said courts to enter such dismission on the last day of the terms aforesaid.

131. 43. Where any injunction shall be hereafter obtained, to stay proceedings on any judgment rendered in any of the courts of this commonwealth, for money or tobacco,(t) and such injunction shall be dissolved wholly or in part, damages at the rate of ten per centum per annum from the time the injunction was awarded, until the dissolution, shall be paid to the party on

(3) Where a party defendant in a suit at law before judgment resorts as plaintiff to equity, praying relief against the claim asserted at law, on equitable grounds, and an injunction to stay proceedings at law, the injunction should be granted only on condition that he confess judgment at law, though he may have grounds of defence at law distinct from the grounds of relief preferred to the courts of equity. Warwick et ux. et al. v. Norvell, 1 Leigh, 96.

(1) It is error in the chancellor to grant an injunction without requiring security, except in the case of executors, administrators and other fiduciary characters. Lomax v. Picot, 2 Rand. 247. See Sherman v. Christian et al. 1 Rand. 393.

(2) Sept. 1744, ch. 11, § 6, 5 Stat. Larg.

241.

(4) An injunction bond was sustained as a statutory bond, although it was not strictly in conformity with the requisitions of this section. White v. Clay's ex'rs, 7 Leigh, 68. (m) The security in a bond for the prosecution of an injunction is not liable for the costs and damages which may accrue on an appeal to a superior court. Woodson v. Johns, 3 Munf. 230.

If an injunction be dissolved on a condi

tion which has been performed by the defendant, the surety in the bond is as fully bound as if there had been an unconditional dissolution. Gray et al. v. Campbell, 3 Munf. 251.

The condition of an injunction bond is broken by a dissolution of the injunction in part, as well as by a total dissolution; and an action lies on the bond whether the injunction be partly or wholly dissolved. White v. Clay's ex'rs, 7 Leigh, 68. On such action extracts from the record of the injunction cause, of the decrees in the cause, are competent and sufficient evidence without producing the whole record. Ibid.

(r) This provision applies only to mere bills of injunction, and not to bills having a farther object, as a conveyance of land, &c. Hough v. Shreeve, 4 Munf. 490; Singleton v. Lewis et al. 6 Munf. 397; Pulliam v. Winston et al. 5 Leigh, 324.

(s) The record must shew that two succeeding courts had been held thereafter, or that the clerk had entered a dismissal of the bill pursuant to this section. See Pitts v. Tidwell, 3 Munf. 88.

(t) See Williamson et al. v. Bowie et al. 6 Munf. 176; Fox et al. v. Mountjoy, Ib. 36.

Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109.

whose behalf such judgment shall be obtained, on such sum as appears to be due, including the costs; (b) and where any such injunction shall be depending in the circuit superior courts of law and chancery, the clerk of such court shall, on dissolution thereof, certify to the clerk of the court wherein the judgment was obtained, the order of dissolution, as also the time of granting and dissolving such injunction, and the clerk shall issue the execution according to the provisions of this act; (b) and in all cases where a forthcoming bond has been executed by the complainant in such injunction, and no judgment rendered thereupon, the court in which execution is awarded, shall direct the said damages to be included in the judgment, which shall be in satisfaction of all interest and damages during the time aforesaid: Provided nevertheless, That where the injunction is granted in order to obtain a discovery, or any part of the judgment shall remain enjoined, the court, wherein the injunction shall be depending, may, if it appear just, direct that no such damages shall be paid by the complainant, or such proportion as according to equity the court may deem expedient; and the clerk of the court, where the judgment was rendered, or the court by whom execution shall be awarded, shall govern themselves accordingly.

132. § 44. Whenever any circuit superior court, or any judge of any such court, (as the case may be,) shall overrule any application for an injunction, the clerk of the court, in the former case, and such judge in the latter, shall certify the same at the foot of the bill. And whenever any motion or application for an injunction shall be overruled, or whenever any order shall be entered dissolving such injunction, it shall be lawful for any person or persons conceiving himself, herself or themselves aggrieved thereby, to present the original bill with the order refusing such injunction, or a copy of the proceedings on which the said dissolution shall be ordered, to the judges of the court of appeals, or any one of them,(n) who shall have authority thereupon, to direct the injunction to be awarded, or allow an appeal from such order of dissolution, in case he or they shall be of opinion that such circuit superior court, or such judge, has erred in such order; and where the judges or judge of the court of appeals shall award an injunction in the manner aforesaid, the same proceedings shall be thereupon had, as if the injunction had been in the first instance awarded by such circuit superior court, or by such judge; and where an appeal shall be allowed in the manner aforesaid, from an order dissolving an injunction, such appeal shall be heard and determined at the next

(b) On the dissolution of an injunction on a judgment, the damages for retarding execution by the injunction should be computed on the aggregate of principal, interest and costs appearing due on the judgment at the date of the injunction; and the damages should be ascertained, and the precept to levy them inserted in the body of the execution. Washington's ex'r v. Parks, 6 Leigh, 581.

(n) The judges, or any one of them; the court has no power under this section. Mayo v. Haines et al. 2 Munf. 423.

Where an injunction is refused by a chancellor in open court, it is competent for a judge or judges of the court of appeals, out of court, to award it. And it was held to be regular in this case for the judges to award it on an office copy of the record in the chancery court being presented to them. Where an injunction has been so awarded by a

judge or judges of the court of appeals, the chancellor ought to restrain any disobedience to that order by attachment or other proper process. Toll-bridge v. Free-bridge, 1 Randolph, 206-8.

A motion to reinstate an injunction, on additional evidence tendered by the complainant, is in the nature of an original application for an injunction, and on the refusal of the chancellor to grant the motion an application to the judges of the court of appeals, or any of them, is proper. Gilliam v. Allen, 1 Randolph, 414.

It cannot now be doubted, after repeated decisions of this court, that from the refusal of a chancellor to reinstate an injunction upon new proofs of the allegations of a bill an appeal lies to any one of the judges of this court. Webster v. Couch, 6 Rand. 519, 524.

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