Sacket v. Hill

2 Mich. 182

• Court: Michigan Supreme Court
• Decided: January 15, 1851
• Status: Published

Opinion

By the Court, Pratt, J.

It is a well settled general rule, in equity practice, that a motion for a dissolution of an injunction, must he founded on an answer to the bill; and that affidavits cannot be substituted for an answer. (1 Hoff. Ch. Pr., 360-'1, and the cases there noted; 3 Bland., 442; 2 Haywood R., 151; 4 Bridgman's Digest, 11; Eden on Injunctions, 116; and also Mr. Daniell’s Eng. Ch. Practice.)

This is the only general rule on the subject, that can be safely adopted in practice. “ If affidavits,” says Mr. Hoffman, “ were allowed to be substituted for an answer, the complainant would be deprived of all benefit of exceptions.” The reason as well as the utility of allowing exceptions to be taken to matters set up in defense, to the case made by the bill, and upon which motions for dissolutions of injunctions are ordinarily predicated, must be obvious to eveiy practitioner in equity. From this general rule, two classes of eases are excepted; cases of waste or irreparable mischief, and cases of partnership; this case not falling within either of these, two excepted classes, it is the opinion of this Court that the objection was well taken, and that the motion should be denied.

Case to be certified accordingly. •