Bland, Chancellor.
In this case the defendants, Thomas Magill, and Thomas N. Harding, having filed their answers, and entered on the docket notice of a motion at the next term to dissolve the injunction issued in the said case, it is ordered, that the said motion stand for hearing at the next term, provided a copy of this order be served on the complainant or her solicitor before the twentieth day of June next.
A copy of this order having been served as required, and no counsel appearing for the plaintiff, the motion to dissolve the injunction was submitted on the part of the defendants, Magill and Harding.
11th August, 1825. — Bland, Chancellor. — An injunction, if prayed for by the bill, may be granted in any case on the bill alone, before a subpoena has been issued, or the party summoned; except to stay proceedings at law in an action of ejectment by a lessor, under the act of 4 Geo. 2, c. 28, s. 3.; or to recover mortgaged property under the act of 7 Geo. 2, c. 20, in which cases no relief, or injunction can be granted before the defendant shall have been summoned and heard.
In ordinary cases the injunction is simply granted as prayed; and, in such cases, the defendant may, immediately upon filing his answer, give notice to the plaintiff of a motion to dissolve the injunction to be heard at the then next term. If the answer be filed [181]*181during the sittings(c) of a term, this notice can only be given by an entry of it upon the docket, of which the plaintiff is bound to take notice; or, if not then entered, it can only be put upon the docket at the next sittings ; and so on, from term to term. But, if the answer be filed after the close of the sittings of a term, then the defendant must make, such an entry upon the docket, and also obtain a special order, such as that which has been passed in this case; and must produce proof of its having been served as required, before his motion can be heard.
The defendant may, during the sittings of a term, at the same time he enters upon the docket a notice of a motion to dissolve the injunction, if the case be so situated, that it lays with the plaintiff next to proceed, also have entered a rule further proceedings, by the next term; so as to compel the plaintiff to proceed with his case, in addition to his shewing cause upon the motion to dissolve. And if the plaintiff excepts to the sufficiency of the answer, such exceptions may be taken up and decided at the same time, and together with the motion to dissolve.(d) After the notice of a motion to dissolve has .been given, in either of those modes, and the rule further proceedings has been entered, the defendant may, at any time, after the specified period has elapsed, which is the first four days of the then next term, take advantage of both, at the same time, during the sittings of any term, so as to have the injunction dissolved, and the bill dismissed at once; without giving any fresh notice, or laying a new rule.(e)
The motion is to dissolve, unless cause shewn by the plaintiff; and therefore on the hearing of it, the matter is opened by him, then the defendant is heard, and the argument is closed on the part of the plaintiff. If the plaintiff fails to appear and shew cause, the injunction may be dissolved on such default, without any consideration by the court, of the bill and answer; which will become absolute at the close of the sittings of the term unless cause shewn. But, if the Chancellor is called on, during the sittings, as he may be, for his judgment upon the motion to dissolve, and he orders the injunction to be dissolved, then it will not, on any account, be reinstated merely on the same bill and answer.
[182]*182In extraordinary cases, however, the course of the court has always been varied to suit the emergency, or the peculiar circumstances. (e) [183]*183Where the equity of the bill appears to be doubtful ; or where the magnitude, and nature of the subject enjoined [184]*184is such as to require a hearing without delay; it being of a public concern, or an extensive work in which a num[185]*185ber of people are daily employed, as ,a ferry, a turnpike road, a canal, a street, a furnace, a joint stock cotton factory, [186]*186&c.;(f) or where there are many defendants who are widely dispersed, or some of whom are nonresidents, and it appears, from [187]*187the statement in the bill, that the facts rest altogether within the knowledge of one or two of them, the Chancellor always, in granting the injunction, specifies the time and terms upon which a motion for a dissolution may be heard. It is declared, that the motion may be heard without answer, or - immediately at the same term, or during the sittings of the next term after the filing of the answer, without notice; or at any time, on giving so many days notice, after filing the answer; or on the answer of one or more of the defendants before the others have [188]*188answered. (g) And for the purpose of apprising the defendant of those special terms, upon which the injunction has been granted, [189]*189the register is directed to endorse, or send a copy of the order to be served along with the writ of injunction. (h)
[190]*190It is an ancient and well settled general rule, that where there are several defendants to the bill, no motion to dissolve the injunc[191]*191tion can be beard until all of them have answered. (i) But to this, as to all other general rules, there are exceptions. As where the [192]*192trustee and cestui que trust were both made defendants, and the trustee would not answer, a motion to dissolve was permitted to be [193]*193made on tbe answer of the cestui que trust alone; and indeed where there appeared to have been fraud and collusion, the cestui que trust, although not a party to the suit, was allowed to move for a dissolution of the injunction;(j) and the injunction may be dissolved as against some of the defendants only; or it may be dissolved on the answer of an- insolvent, who has no interest in the matter, upon his speaking to facts peculiarly within his own knowledge before his insolvency ;(k)
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Bland, Chancellor.
In this case the defendants, Thomas Magill, and Thomas N. Harding, having filed their answers, and entered on the docket notice of a motion at the next term to dissolve the injunction issued in the said case, it is ordered, that the said motion stand for hearing at the next term, provided a copy of this order be served on the complainant or her solicitor before the twentieth day of June next.
A copy of this order having been served as required, and no counsel appearing for the plaintiff, the motion to dissolve the injunction was submitted on the part of the defendants, Magill and Harding.
11th August, 1825. — Bland, Chancellor. — An injunction, if prayed for by the bill, may be granted in any case on the bill alone, before a subpoena has been issued, or the party summoned; except to stay proceedings at law in an action of ejectment by a lessor, under the act of 4 Geo. 2, c. 28, s. 3.; or to recover mortgaged property under the act of 7 Geo. 2, c. 20, in which cases no relief, or injunction can be granted before the defendant shall have been summoned and heard.
In ordinary cases the injunction is simply granted as prayed; and, in such cases, the defendant may, immediately upon filing his answer, give notice to the plaintiff of a motion to dissolve the injunction to be heard at the then next term. If the answer be filed [181]*181during the sittings(c) of a term, this notice can only be given by an entry of it upon the docket, of which the plaintiff is bound to take notice; or, if not then entered, it can only be put upon the docket at the next sittings ; and so on, from term to term. But, if the answer be filed after the close of the sittings of a term, then the defendant must make, such an entry upon the docket, and also obtain a special order, such as that which has been passed in this case; and must produce proof of its having been served as required, before his motion can be heard.
The defendant may, during the sittings of a term, at the same time he enters upon the docket a notice of a motion to dissolve the injunction, if the case be so situated, that it lays with the plaintiff next to proceed, also have entered a rule further proceedings, by the next term; so as to compel the plaintiff to proceed with his case, in addition to his shewing cause upon the motion to dissolve. And if the plaintiff excepts to the sufficiency of the answer, such exceptions may be taken up and decided at the same time, and together with the motion to dissolve.(d) After the notice of a motion to dissolve has .been given, in either of those modes, and the rule further proceedings has been entered, the defendant may, at any time, after the specified period has elapsed, which is the first four days of the then next term, take advantage of both, at the same time, during the sittings of any term, so as to have the injunction dissolved, and the bill dismissed at once; without giving any fresh notice, or laying a new rule.(e)
The motion is to dissolve, unless cause shewn by the plaintiff; and therefore on the hearing of it, the matter is opened by him, then the defendant is heard, and the argument is closed on the part of the plaintiff. If the plaintiff fails to appear and shew cause, the injunction may be dissolved on such default, without any consideration by the court, of the bill and answer; which will become absolute at the close of the sittings of the term unless cause shewn. But, if the Chancellor is called on, during the sittings, as he may be, for his judgment upon the motion to dissolve, and he orders the injunction to be dissolved, then it will not, on any account, be reinstated merely on the same bill and answer.
[182]*182In extraordinary cases, however, the course of the court has always been varied to suit the emergency, or the peculiar circumstances. (e) [183]*183Where the equity of the bill appears to be doubtful ; or where the magnitude, and nature of the subject enjoined [184]*184is such as to require a hearing without delay; it being of a public concern, or an extensive work in which a num[185]*185ber of people are daily employed, as ,a ferry, a turnpike road, a canal, a street, a furnace, a joint stock cotton factory, [186]*186&c.;(f) or where there are many defendants who are widely dispersed, or some of whom are nonresidents, and it appears, from [187]*187the statement in the bill, that the facts rest altogether within the knowledge of one or two of them, the Chancellor always, in granting the injunction, specifies the time and terms upon which a motion for a dissolution may be heard. It is declared, that the motion may be heard without answer, or - immediately at the same term, or during the sittings of the next term after the filing of the answer, without notice; or at any time, on giving so many days notice, after filing the answer; or on the answer of one or more of the defendants before the others have [188]*188answered. (g) And for the purpose of apprising the defendant of those special terms, upon which the injunction has been granted, [189]*189the register is directed to endorse, or send a copy of the order to be served along with the writ of injunction. (h)
[190]*190It is an ancient and well settled general rule, that where there are several defendants to the bill, no motion to dissolve the injunc[191]*191tion can be beard until all of them have answered. (i) But to this, as to all other general rules, there are exceptions. As where the [192]*192trustee and cestui que trust were both made defendants, and the trustee would not answer, a motion to dissolve was permitted to be [193]*193made on tbe answer of the cestui que trust alone; and indeed where there appeared to have been fraud and collusion, the cestui que trust, although not a party to the suit, was allowed to move for a dissolution of the injunction;(j) and the injunction may be dissolved as against some of the defendants only; or it may be dissolved on the answer of an- insolvent, who has no interest in the matter, upon his speaking to facts peculiarly within his own knowledge before his insolvency ;(k) and so where it appears from the nature of the case, that the responding defendant is the only one who can speak, from his own knowledge, in relation to the facts on which the injunction rests ;(l) as where the defendants who have not answered are infants ; and so too where it appears, that the answer of a nonresident defendant cannot be material as to the facts on which the injunction is founded.(m)
[194]*194In the case under consideration the equity arises out of the facts as alleged in the bill, that Harding and Magill have not only [195]*195fraudulently concealed and disposed of property which ought to hare been applied in satisfaction of the debt with which the [196]*196plaintiff is charged; but that they have done so, and indulged and settled with Harding, who was the principal debtor, in a manner [197]*197very prejudicial to the testator of the plaintiff, who was only the surety of Harding; and, therefore, that the plaintiff should be discharged. In answer to this statement of facts, Magill, .as to some most material particulars, responds merely by way of hearsay from the defendant Gittings ; and the answer of Harding, looking to the allegations of the bill, is that of a particeps fraudis, and as such cannot be allowed to be of any avail to Magill, the creditor [198]*198and alleged party to the fraud. (n) The loan of the $500 was made by the defendant Gittings ; the note for it, on which the judgment at law was obtained, was given to him; and it is admitted, that he, as having been privy to the whole transaction, is able to speak of the facts from his own knowledge; and, therefore, it is important that he should answer, as well because he is disinterested, having settled his final account and been discharged as guardian, as because Magill, who claims under him, will be bound by his answer.(o)
It is true, that a defendant has no direct means of enforcing an answer to the bill from his co-defendant; but, he may urge forward the plaintiff to do his duty in that particular; and, certainly, at the instance of a defendant anxious to have the restriction of an injunction removed, the court would suffer no unreasonable delay from the plaintiff. A responding defendant may lay the plaintiff under a rule further proceedings, which the court will not hesitate to enforce so as to compel him to extract an answer from a tardy co-defendant with as little delay as possible; or else the bill may be dismissed and the injunction dissolved ;(p) for, in equity as at [199]*199law, where there aré necessarily several defendants, the court will not continue the restriction which has been imposed upon one of [200]*200them, unless the plaintiff shews, that he is using all due diligence to have all the others brought before the court.(q)
These defendants, who now ask for a dissolution of this injunction, have not yet, by a rule further proceedings, required the plaintiff to prosecute her suit without delay; and, consequently, they cannot justly complain of the injunction being continued until the filing of the answer of the defendant Gittings; which, it is evident, may bring into the case an acknowledgment of facts, that may go far to sustain, if not entirely ,to support the equity upon which the plaintiff’s 'injunction- rests. Hence, as there is now no ground to impute to the plaintiff any unreasonable neglect in the prosecution of her suit; and the answer of a defendant, under whom this creditor, Magill, claims, who, it is admitted, can speak from his own knowledge of some of the material facts charged in the bill, has not yet been put in; the hearing of the motion to dissolve cannot be taken up until his answer has been brought in; or, until it may be inferred, from the laches of the plaintiff, in not endeavouring to have it brought in, that it would contain nothing likely to sustain her case; or until such implied notice of the bill has been given to the non-responding defendant, if he, be not resident within the State, as will enable the court to proceed without his answer. (r)
[201]*201Whereupon it is ordered, that the injunction heretofore granted in this case be and the same is hereby continued until the coming [202]*202in of the answer of the defendant John F. Gittings, and until further order.
The, defendant Magill, by his petition, referring to the previous proceedings, stated, that the defendant Gittings, for a long time previous to the filing of the bill, and then did reside out of the limits of this State; .which, as he believes, was known to the plaintiff when she instituted this suit; and yet, she had not stated the fact in her bill and prayed for an order, of publication, in place of a subpmna against him; whereupon the petitioner prayed, that the plaintiff might be compelled to proceed against the defendant Gittings without delay, &c.
[203]*20315th November, 1825. — Bland, Chancellor. — If the plaintiff fails to proceed against the defendant John F. Gittings, for the purpose of compelling him to appear and answer, or of having the bill, as against him, taken pro confesso, or to cause publication to be made against him, as an absent defendant, on or before the tenth day of the next term, then the other defendants may again move, according to the usual course, to have the injunction dissolved.
After which the plaintiff, with the leave of the Gourt, so amended her bill as to state, that the defendant Gittings was a nonresident; and, on the 1st of February, 1826, obtained-an order of publication against him in the usual form. On the 27th September, 1826, the defendant Gittings filed his answer, after which the motion to dissolve was renewed.
3d March, 1827. — Bland, Chancellor. — This case having been submitted on the motion to dissolve the injunction, and all the defendants having now so answered, as completely to remove every ground of equity set forth in the bill, it is Ordered, that the injunction heretofore granted be and the same is hereby annulled and dissolved.
Todd v. Pratt, 1 H. & J. 465; Eden. Inj. 85.