garded only so far as it is responsive to the bill.86 New matter set up by way of avoidance is not sufficient cause for disselution.87 There is a difference of opinion concerning the effect of an unsworn answer, where the bill waives an answer under oath. Some authorities hold that such an answer is no more than a mere pleading.88 Others hold that the sole effect of such waiver is to dispense with the rule requiring the evidence of two witnesses to overcome the answer, and that the complainant cannot thus impair the right of the defendant to have the injunction dissolved on the denials of his unsworn answer. § 522. Where there are several defendants. 89 The general rule is that an injunction will not be dissolved until all the defendants have answered; but this rests in the discretion of the court, and it may be dissolved without compelling an answer from all the defendants.90 The rule that an injunction will not be dissolved until all the defendants have answered applies only to cases where the defendants have an identity of interests, and the defendants having the substantial interests in the subject-matter of the controversy have not an 184; Yale v. Moore, 3 Tenn. Ch. 76; Albert v. Strange, 1 Macn. & G. 42; Rich v. Thomas, 57 N. C. 71. 86 Hardy v. Summers, 10 Gill & J. (Md.) 316, 32 Am. Dec. 167; Hutchins v. Hope, 12 Gill & J. (Md.) 244; Cornelius v. Post, 9 N. J. Eq. 196; Jackson v. Jackson, 84 Ala. 343, 4 So. 174. 87 Robinson v. Cathcart, 2 Cranch, C. C. 590, Fed. Cas. No. 11,946; Johnston v. Corey, 25 N. J. Eq. 311; Hardy v. Summers, 10 Gill & J. (Md.) 316, 32 Am. Dec. 167; Minturn v. Seymour, 4 Johns. Ch. (N. Y.) 498; Cole Silver Min. Co. v. Virginia & Gold Hill Water Co., 1 Sawy. 685, Fed. Cas. No. 2,990. 88 Metropolitan Grain & Stock Exchange v. Chicago Board of Trade, 15 Fed. 847; Gray v. McCance, 11 Ill. 325. 89 High, Inj. § 1527; Lockhart v. City of Troy, 48 Ala. 579; Ingles v. Straus, 91 Va. 209, 21 S. E. 490. 90 Baltimore & O. R. Co. v. City of Wheeling, 13 Grat. (Va.) 40; Reynolds v. Mitchell, 1 Ill. 177; Jones v. Magill, 1 Bland (Md.) 177; Smith v. Loomis, 5 N. J. Eq. 60; Robinson v. Cathcart, 2 Cranch, C. C. 590, Fed. Cas. No. 11,946. swered.91 As a general rule, an injunction will not be dissolved without the answer of the defendant on whom the grava men of the charge rests; but if the answering defendant is able to lay all the facts before the court which show that the complainant has no equity, an injunction will be dissolved without the answer of the other defendants." 92 § 523. Motion to dissolve by one in contempt. It is a general rule that one in contempt for violating an injunction must purge himself of such contempt before he can move to dissolve it;93 but where the nature and extent of the punishment to be imposed for such contempt depend on the determination of the question whether the injunction shall be continued, the motion may be entertained.94 § 524. Necessity of giving notice of motion to dissolve. As a general rule, reasonable notice should be given of the application to dissolve an injunction.95 A general notice is sufficient if the motion to dissolve is for want of equity; but if there be another ground, not touching the equity, it should be stated.96 91 McVickar v. Wolcott, 4 Johns. (N. Y.) 510; Wilson v. Hendricks, 54 N. C. 295; Marvel v. Ortlip, 3 Del. Ch. 9; Dennis v. Green, 8 Ga. 197; Rogers v. Hosack's Ex'rs, 18 Wend. (N. Y.) 319; Livesay v. Feamster, 21 W. Va. 83; Hayzlett v. McMillan, 11 W. Va. 464. 92 Coleman v. Gage, Clarke, Ch. (N. Y.) 295; Gregory v. Stillwell, 6 N. J. Eq. 51; Baltimore & O. R. Co. v. City of Wheeling, 13 Grat. (Va.) 40; City of Annapolis v. Harwood, 32 Md. 471. See, for cases where there are several defendants, Wisham v. Lippincott, 9 N. J. Eq. 353; Noble v. Wilson, 1 Paige (N. Y.) 164. 93 Fadely v. Tomlinson, 41 W. Va. 606, 24 S. E. 645; Jacoby v. Goetter, 74 Ala. 427; Turpin v. Jefferson, 4 Hen. & M. (Va.) 483. 94 Crabtree v. Baker, 75 Ala. 91, 51 Am. Rep. 424; Endicott v. Mathis, 9 N. J. Eq. 110. But see Kaehler v. Dobberpuhl, 56 Wis. 497, 14 N. W. 631. See Hovey v. Elliott, 167 U. S. 409, holding that the power of the court to deny a favor to a person in contempt does not include the power to refuse to him the right to defend in the principal case on the merits. This case extensively reviews the authorities on this subject. 95 Wilkins v. Jordan, 3 Wash. C. C. 226, Fed. Cas. No. 17,665. 96 Morris Canal & Banking Co. v. Bartlett, 3 N. J. Eq. 9; Brown v. $525. Form of notice of motion to dissolve. [Title of court and cause and address to solicitors.] Please take notice that on Monday morning next, the 11th inst., at 10 o'clock a. m., or as soon thereafter as counsel can be heard, we shall, before his honor, Judge Tuley, in the room usually occupied by him as a court room, ask the court to take up and dispose of the demurrer heretofore filed in the above-entitled cause. At the same time and place we shall move the court to dissolve the injunction heretofore granted in the above-entitled cause. Dated, Chicago, Oct. 4, 1897. S. B. & S., Solicitors for Defendant. Received a copy of the foregoing notice this 4th day of October, A. D. 1897. E. O. B., Solicitor for Complainants.97 § 526. Affidavits in support of motion to dissolve. The practice relative to the use of affidavits on a motion to dissolve an injunction is frequently regulated by statute or rule of court.98 The question is involved in considerable confu Winans, 11 N. J. Eq. 267. A notice of motion to dissolve for irregularity in the proceedings is insufficient. Miller v. Traphagan, 6 N. J. Eq. 200. A notice is not vitiated by the misdescription of complainant in the bill, where the cause to which it relates cannot be mistaken. Hiller v. Cotten, 54 Miss. 551; Smith v. Painter, 10 N. J. Law J. 182. 97 This notice is taken from Gordon v. Winston, 181 Ill. 338, 54 N. E. 1095. 98 See Hardt v. Liberty Hill Consolidated Mining & Water Co., 27 Fed. 788; Brown v. Haff, 5 Paige (N. Y.) 235, 28 Am. Dec. 425; Village of Seneca Falls v. Matthews, 9 Paige (N. Y.) 504. The application to dissolve an injunction must be supported by evidence which is usually given by affidavit on the part of the defendant in answer to that upon which the injunction was obtained, and it is said that the case thus made by the defendant may be met by counter evidence on the part of the complainant. 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 1676. Mr. Justice Story said on this point: "The plaintiff, under some circumstances, is entitled to read affidavits in contradiction to the answer; not, indeed, to all points, but to many points." Poor v. Carleton, 3 Sumn. 70, Fed. Cas. No. 11,272. Lord Eldon declared that the practice of dissolving an injunction if the answer denied all the circumstances upon which the equity of the bill was founded was carried so far that, except in a few excepted cases, though five hundred affidavits were filed, not only by the complainant, but by many witnesses, not one could be read as to this purpose. Clapham v. White, 8 Ves. 36; Long sion, and the statutes, rules of court, and decisions of the respective jurisdictions should be consulted to determine whether or not the reading of such affidavits is permissible." § 527. Considerations determining question of dissolution. If reasonable doubt exists in the mind of the court whether the equity of the complainant be sufficiently negatived by the answer, the court will continue the injunction to the hearing.100 When a proper ground for injunction is admitted by the answer, and the answer admits that there remains a dispute between the parties, the injunction will be continued until further order.101 If it appears that the dissolution of the injunction would work irreparable injury to the complainant, it will v. Brown, 4 Ala. 622; Merwin v. Smith, 2 N. J. Eq. 182. It is said by Mr. Foster that it was originally thought that the complainant could not show that any of the allegations contained in the answer were false, but that such doctrine has, in the United States at least, been exploded, and it is well settled that the complainant can not only dispute the truth of such allegations, whether they are positive or negative, but is at liberty to file counter affidavits to reply to new matter contained in the defendant's affidavits or answer. Foster, Fed. Pr. (2d Ed.) § 235, citing Day v. New England Car Co., 3 Blatchf. 154, Fed. Cas. No. 3,686; Merwin v. Smith, 2 N. J. Eq. 182. 99 See, on this question, Bellona Co.'s Case, 3 Bland (Md.) 442; Withers' Ex'r v. Dickey, 1 Stew. (Ala.) 190; Kidd v. Bates, 124 Ala. 670, 27 So. 491. See Lewis v. Leak, 9 Ga. 95; Henry v. Watson, 109 Ala. 335, 19 So. 413; Hollins v. Mallard, 10 How. Pr. (N. Y.) 540; Bradford v. Peckham, 9 R. I. 250; Eastburn v. Kirk, 1 Johns. Ch. (N. Y.) 444. Where the mischief arising from the act complained of would be irreparable, the settled practice is for the complainant to read affidavits in opposition to the answer. Swindall v. Bradley, 56 N. C. 353. It is inconvenient and undesirable, on motion to dissolve an injunction, to permit affidavits to be read in support of a bill, and in cases proper for affidavits under the English practice, it is preferable to let the injunction stand to the hearing, it being considered that no injustice will be done the defendant, since he stands secured by the injunction bond, except in cases where either to dissolve or to continue would work ir reparable injury, and a prompt decision becomes, therefore, necessary. Kersey v. Rash, 3 Del. Ch. 321. 100 Lowe v. Davidson County Com'rs, 70 N. C. 532. 103 be continued.102 So, if he would be deprived of the benefit of the suit, if he should finally prevail, as by removing from the jurisdiction the property which is the subject-matter.1 If the writ cannot injure the defendant, but if dissolved the complainant might be remediless, or if dissolution will result in greater hardship than a continuance of the injunction, the application will be denied.104 Where no public inconvenience will result from the continuance of the injunction against municipal authorities, and, on the other hand, the private interests inconvenienced are considerable, affecting not only the complainant, but many others, an injunction to prevent the removal of a building alleged to encroach on a building line will be retained until the final hearing.105 If the injunction no longer subserves any useful purpose, it will be dissolved." That a continuance of the injunction will work great injury to the defendant's business is a point for consideration.107 If its continuance is a material injury to the defendant, and its dissolution is no present injury to the complainant, or cannot prejudice his right, the court may, in its discretion, dissolve it.108 § 528. Effect of bad faith in obtaining injunction. 106 If an injunction is obtained by fraud or misrepresentation or bad faith, it will be dissolved. 109 It makes no difference 102 Kersey v. Rash, 3 Del. Ch. 321; Fleischman v. Young, 9 N. J. Eq. 620; Linton v. Denham, 6 Fla. 533. 103 Owen v. Brien, 2 Tenn. Ch. 295; Hoagland v. Titus, 14 N. J. Eq. 81. 104 Hammond v. Hammond, Clarke, Ch. (N. Y.) 151; Chetwood v. Brittan, 2 N. J. Eq. 438; Owen v. Brien, 2 Tenn. Ch. 295; New v. Bame, 10 Paige (N. Y.) 502. 105 Manko v. Borough of Chambersburgh, 25 N. J. Eq. 168. 106 In re Jackson, 9 Fed. 493; Lowe v. Warren Canal Co., Wright (Ohio) 616. 107 Furman v. Clark, 11 N. J. Eq. 135. 108 Bechtel v. Carslake, 11 N. J. Eq. 244; Planters' & Merchants' Bank v. Laucheimer, 102 Ala. 454, 14 So. 776. 109 Endicott v. Mathis, 9 N. J. Eq. 110: Ch. 780; Clifton v. Robinson, 16 Beav. 355; 130. Black v. Huggins, 2 Tenn. |