has been irregularly issued, the defendant should move to discharge the order granting it.10 If he should move to dissolve it, he might be held to have by so doing recognized its regularity." It has been held that after a demurrer put in by him to the bill has been overruled a defendant can only move to dissolve by leave of the court; which was, in one case, only granted upon his affidavit that the demurrer was not interposed for delay, and his giving security to pay all damage to the plaintiff thereby caused.12 Where the application for dissolution was made after answer, it was originally thought that the plaintiff could not show that any of the allegations therein contained were false; 13 but that doctrine has been, in this country at least, exploded,14 and it is well settled that the plaintiff can not only dispute the truth of such allegations, whether they are positive or negative, but is at liberty to file counter affidavits in reply to new matter contained in the defendant's affidavits or answer.1 15 When a stay-order has been made, and simultaneous applications, by the defendant to discharge the stay-order, and by the plaintiff for an injunction, are heard together, the plaintiff has the right to open and close the argument.16 If upon the application to dissolve an injunction the court is not satisfied that the plaintiff is entitled to retain it, it will dissolve the injunction, and may then direct an issue, an action at law, or a reference before the hearing.17 If, however, it is satisfied that the plaintiff is entitled to the writ, the court will direct the injunction to be continued until the hearing.18 Where the court dissolves the injunction upon the ground that it appears upon the face of the bill that the plaintiff is not entitled thereto, and that is the only relief prayed for by him, it cannot at the same time dismiss the bill; for the plaintiff has still the right to bring the suit to a hearing.19 If the question

10 Angier v. May, 3 W. R. 330; Daniell's Ch. Pr. (5th Am. ed.) 1676; Kerr on Injunctions, 564.

15 Day v. New England Car Spring Co., 3 Blatchf. 154; Daniell's Ch. Pr. (5th Am. ed.) 1676; Shoemaker v. Nat. Mechanics'

11 Vipan v. Mortlock, 2 Meriv. 476; Bank, 1 Hughes, 101. Kerr on Injunctions, 564.

12 Woodworth v. Edwards, 3 W. & M. 120.

16 Fraser v. Whalley, 2 Hem. & M. 10.

17 Daniell's Ch. Pr. (2d Am. ed.) 1897. 18 Packington v. Packington, 1 Dick

18 Daniell's Ch. Pr. (5th Am. ed.) 1676, ens, 101; Daniell's Ch. Pr. (5th Am. ed.) note 4.

14 Poorv. Carleton, 3 Sumner, 70; United States v. Parrott, 1 McAll. 271; Orr v. Littlefield, 1 W. & M. 13; Orr v. Merrill, 1 W. & M. 376; Clum v. Brewer, 2 Curt. 506.

1678.

19 Brooke v. Clarke, 1 Swanst. 550; Blow v. Taylor, 4 Hen. & Munf. (Va.) 159.

is left in doubt upon the motion to dissolve, it seems that the motion will be denied.20 The ambiguity of the order granting the injunction is sufficient ground for its dissolution or modification.21 The defendant's delay in moving to dissolve the injunction may deprive him of his right to have it dissolved.22 When a special injunction has been granted after a full hearing, it will not be dissolved except on new evidence.23 It has been held that a preliminary injunction will not be dissolved after answer upon grounds shown by affidavits, which, from their not having been set up in the answer, cannot be used at the hearing of the whole case.24 A judge will very rarely dissolve an injunction granted by one of his judicial brethren.25 After an injunction has been dissolved, if evidence subsequently taken shows that it was properly issued, it may be issued anew.26 The dissolution of. an ex parte injunction on account of a suppression of material facts does not preclude the plaintiff from applying for another injunction on the merits.27

§ 236. Dissolution of Injunctions for Causes arising after their Issue. An injunction may also be dissolved if the plaintiff is guilty of gross and inexcusable delay in taking testimony or in bringing the cause to a hearing; 1 and in general if from a change of circumstances its continuance would no longer serve any useful. purpose. The subsequent passage of an act of Congress legalizing a structure which has been enjoined as a nuisance is a reason for the dissolution of an injunction.3 It has been held that an injunction staying proceedings at law against a bankrupt is dissolved ipso facto by his discharge, but remains unaffected by his delay in applying for his discharge.5 The expiration of a

20 Cooper v. Mattheys, 5 Penn. L. J. 38; s. c. Law Rep. 413; Fisher v. Lord, 6 West L. J. 137; Woodworth v. Hall, 1 W. & M. 389; Woodworth v. Rogers, 3 W. & M. 135; Sparkman v. Higgins, 1 Blatchf. 205.

21 Dalglish v. Jarvie, 2 Macn. & G. 231. 22 Florence Sewing Machine Co. v. Grover & Baker Sewing Machine Co., 110 Mass. 1; Kerr on Injunctions, 565.

23 Woodworth v. Hall, 1 W. & M. 389. 24 Union Paper Bag Machine Co. v. Newell, 11 Blatchf. 549.

25 Cole Silver Mining Co. v. Virginia & Gold Hill Water Co., 1 Saw. 685; Preston v. Walsh, 10 Fed. R. 315; Reynolds

v. Iron Silver Min. Co. 33 Fed. R. 354; Klein v. Fleetford, 35 Fed. R. 98.

26 Tucker v. Carpenter, Hempst. 440. 27 Fitch v. Rochfort, 18 L. J. Ch. 458; Kerr on Injunctions, 564.

§ 236. Read v. Consequa, 4 Wash. C. C. 174; Bradley v. Reed, 12 Pitts. L. J. 65; Shermerhorn v. L'Espenasse, 2 Dall. 360; In the Matter of Schwarz, 14 Fed. R. 787.

2 In re Jackson, 9 Fed. R. 493; Re Pitts, 9 Fed. R. 542.

3 Baird v. Shore Line Ry. Co., 6 Blatchf. 461.

In re Thomas, 3 N. B. R. 7.

In re Schwarz, 14 Fed. R. 787, 789.

patent does not without the order of the court dissolve an injunction against its infringement. It has been held that at the expiration of a patent the court will dissolve an injunction against its infringement, and leave the complainant no remedy except his claim for damages against the subsequent sale and use of articles manufactured while the patent was alive, in infringement of the patent. An injunction is not dissolved by an amendment of the bill unless the amendment substantially changes the cause of action. But it is customary to include in the order allowing an amendment a direction that it be "without prejudice to the injunction." The allowance of a demurrer to the whole bill puts an end to an injunction which had previously been obtained; 10 but leave will usually be given to amend without prejudice to the injunction, when the demurrer is allowed on account of a defect in form, such as multifariousness.12 11 "The allowance of a plea does not dissolve an injunction. There may be some equity shown to continue it. An order for its dissolution must be obtained." 18 An injunction is not dissolved by an abatement or by a defect in the suit, but the defendant must, if he wishes to be freed from the restraint thereby imposed, move that the plaintiff or his representatives be required to revive or take such other steps as may be necessary within a limited time, and that if he fail to do so the injunction may be dissolved.14

§ 237. The Imposition of Terms upon the Issue, Denial, Dissolution, or Continuance of an Injunction. As the issue of a special injunction is in its discretion, the court may impose terms upon the plaintiff or defendant when granting or refusing the issue, dissolution, or continuance of the same. The usual terms are

6 American Diamond Rock Boring Co. v. Rutland Marble Co., 2 Fed. R. 356.

7 Westinghouse v. Carpenter, 43 Fed. R. 894, Miller and Love. JJ.; American Cable Ry. Co. v. Chicago City Ry. Co., 41 Fed. R. 522. But see American D. R. B. Co. v. Rutland Marble Co., 2 Fed. R. 356; supra, §§ 11, 216.

8 Reed v. Consequa, 4 Wash. C. C. 174; Warburton v. London & Blackwall Ry. Co., 2 Beav. 253. But see Sharp v. Ashton, 3 V. & B. 144.

9 Attorney-General v. Marsh, 16 Simons, 572; Kerr on Injunctions, 566.

10 Schneider v. Lizardi, 9 Beav. 461, 468; Kerr on Injunctions, 565.

the giving of a bond or undertaking with good security to indemnify the other party against all loss that may result from the issue or withholding of the injunction.2 It is not usual to require security from the United States when a preliminary injunction is granted at its request in a suit in which it is plaintiff.3 In some instances the court has withheld an injunction to restrain an infringement of a patent or copyright, upon the defendant's merely undertaking to keep an account of the sales made by him during the pendency of the suit. Sometimes the terms are that the defendant shall give an undertaking to abide by the farther order of the court.5 An injunction will never be issued to restrain the collection of State taxes, unless the plaintiff first pays "what is conceded to be due, or what can be seen to be due on the face of the bill, or be shown by affidavits, whether conceded or not." 6 Whether or not, if the court upon the final hearing decides after a preliminary injunction has been denied that a perpetual one should issue, or dissolves an injunction previously granted, the finally successful party can have his damages assessed and the bond or undertaking given as security enforced by the court, or must bring an action at law, is under the authorities an open question. Mr. Justice Curtis held at circuit that he must sue at law; but a recent opinion of the Supreme Court, although expressly reserving the question, seems to intimate that a court of equity has the power to assess the damages and enforce payment of the bond. The latter view seems more in harmony with the general principles gov~ erning equity practice, and has been adopted by Judge Drummond in a recent case in a Circuit Court.10 Such a court has, at all events, the power to absolve from all liability the persons held by the bond, and it would take a very strong case to

2 Russell v. Farley, 105 U. S. 433; Kirby Bung Manuf. Co. v. White, 1 Fed. R. 604; Northern Pacific R. R. Co. v. St. Paul, Minneapolis & Manitoba R. R. Co., 2 McCrary, 260; s. c. 4 Fed. R. 688.

8 United States v. Jellico, M. C. & C. Co., 43 Fed. R. 898.

4 Furbush v. Bradford, 1 Fisher's Pat. Cas. 317; McCrary v. Penn. Canal Co., 5 Fed. R. 367; Kerr on Injunctions, 29, 30.

5 Attorney-General v. Manchester & Leeds Ry. Co., 1 [English] Railway Cases,

436; Jones v. Great Western Ry. Co., 1 [English] Railway Cases, 684.

State Railroad Tax Cases, 92 U. S. 575, 617; National Bank v. Kimball, 103 U. S. 732; Parmley v. Railroad Companies, 3 Dill. 25; Huntington v. Palmer, 8 Fed. R. 449; supra § 84.

7 Merryfield v. Jones, 2 Curt. 306. See also Bein v. Heath, 13 How. 168.

8 Russell v. Farley, 105 U. S. 433. 9 See Moore v. Moore. 25 Beav. 8; Sugden v. Hull, 28 Beav. 263.

10 Lea v. Deakin, 13 Fed. R. 514.

induce an appellate court to interfere with such a decision by it."1 In a recent case 12 the English Court of Chancery had occasion to discuss the nature and effect of an undertaking given on obtaining an injunction. Sir George Jessel, the Master of the Rolls, said that these undertakings were invented by Lord Justice Knight Bruce when Vice-Chancellor, and originally inserted only in ex parte injunctions. They were intended to protect the court as well as the suitor from improper ex parte applications. After a time this practice was extended to interlocutory injunctions granted upon notice to the defendant, first in special cases, then generally; and now it is always inserted as a matter of course. The reason for the thing is that on an interlocutory application there is only a short time to get up the case, and it is impossible for the court to obtain a complete knowledge of the facts. Further, these applications are heard upon affidavit evidence, so that it is impossible to say which side will ultimately turn out to be right. Therefore the court reserves power to indemnify the defendant in case it should have been induced, upon an incomplete hearing of the facts, to make a wrong order.12 One point gave rise to a difference of opinion in the court; Jessel holding that the undertaking could not be enforced if the injunction was dissolved, on the ground that the court erred as to the law.12 The other judges did not concur in this,13 and Lord Justice Cotton was equally clear the other way.18 The judges were also of opinion that the plaintiff could not recover for the loss of a contract into which he was prevented from entering by the injunction; since this, in the absence of fraud and malice, was too remote. The rule in Hadley v. Baxendale 14 was applied, that only the proximate, ordinary or natural damages could be recovered, unless there was notice of a particular contract contemplated. The judges agreed that in this case the alleged contract was not made out; but held that if one had been proved, the prevention of carrying it into effect was not sufficient to sustain a claim to recover the damages for its loss by proceeding on the undertaking.15

11 Russell v. Farley, 105 U. S. 433. See also Deakin v. Stanton, 3 Fed. R. 435; Grundy v. Young, 2 Cranch C. C. 114; Bentley v. Joslin, Hempst. 218.

18 Citing Novello v. James, 5 De G. M. & G., 876.

14 9 Ex. 341.

15 Smith v. Day, 21 Ch. D. 421, 426,

12 Smith v. Day, 21 Ch. D. 421, 424, 428, 430. See Lehman v. McQuown, 31 426, 428, 429, 431.

Fed. R. 138; infra p. 391.