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tion therefor, to the proper officers of the corporation, except where the people of this state are a party to the proceeding, and except in proceedings to enforce the liability of stockholders in corporations and associations for banking purposes, after the first day of January, one thousand eight hundred and fifty, as such proceedings are or shall be provided by law; unless the plaintiff shall give a written undertaking, executed by two sufficient sureties, to be approved by the court or judge, to the effect that the plaintiff will pay all damages, not exceeding the sum to be mentioned in the undertaking, which such corporation may sustain, by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference, or otherwise as the court shall direct.
Where an injunction is granted upon notice, a motion to vacate or modify it, will not, under ordinary circumstances, be granted; though, on allegations of surprise, fraud, or of an altered state of circumstances, applications of this nature may be entertainable. Where, however, the order has been granted ex parte, a motion to vacate may be made in all cases. The following is the provision of the Code upon the subject, sec. 225 :
§ 225. If the injunction be granted by a judge of the court, or by a county judge, without notice, the defendant, at any time before the trial, may apply, upon notice, to a judge of the court in which the action is brought, to vacate or modify the same. The application may be made upon the complaint, and the affidavits on which the injunction was granted, or upon affidavits on the part of the defendant, with or without the answer.
This application cannot be entertained without notice, under any circumstances. Where an immediate dissolution is sought, an order to show cause will be the proper form ; where time is not so much an object, an ordinary notice will suffice.
The law as to the circumstances under which an injunction will or will not be maintained, on a motion to vacate or dissolve it, is not affected by the code, but remains substantially as under the late practice. The elementary treatises on the subject, and also as to injunctions in general, should accordingly be consulted, the present observations being, as in other cases, strictly confined to the practice under the recent measure.
In Litchfield v. Petton. 6 Barb. S. C. R. 187, it was held that a general denial of fraud by a defendant, cannot be urged successfully against an order for an injunction, where facts are admitted,
from which the court, or a jury, may properly infer a fraudulent intent. The injunction, in such a case, should be retained until final judgment.
Notwithstanding the provisions of sec. 324, that an order made out of court, without notice, may be so vacated or modified by the judge who made it, a motion to dissolve an injunction cannot be thus made. These provisions are controlled by the section last above cited, under which, notice is requisite in all cases.-Mills v. Thursby, 1 C. R. 121.
In Osborn v. Lobdell, 2 C. R. 77, it was considered that, on moving to dissolve an injunction obtained without notice, the defendant must furnish proof of the existence of the suit, and of the proceedings in it. This decision is, however, distinctly overruled by Newbury v. Newbury, 6 How. 182, 1 C. R. (N. S.) 409, and is clearly at variance with the well-established principle that, in motions grounded upon the pleadings or proceedings in a suit, no formal proof of their existence will be required. Where an order is taken by default, such formal proof may possibly be requisite; but, where the opposite party appears, it is clear that he cannot properly object, and, above all, to the reading of papers actually served by himself. See Darrow v. Miller, 5 How. 247, 3 C. R. 241, and other cases cited under the heads of Pleading and Motions.
The motion to vacate or modify, may either be grounded on an alleged defect or irregularity in the plaintiff's proceedings, or on an adverse equity set up by the defendant. In the former case, the application should be grounded on the papers served by the plaintiff, and on them alone. Under these circumstances, affidavits will be inadmissible on either part, and the question will be brought on, on those papers, and on the notice of motion or order to show cause, alone without any counter evidence.
Under ordinary circumstances, however, the application for the above purpose will be more or less grounded on a counter case made out by the defendant, which case may be presented, on his answer and affidavits in support, or on either standing alone. The following provision is made by sec. 226, in relation to the rights of the plaintiff under these circumstances :
§ 226. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the injunction was granted.
In Servoss y. Stannard, 2 C. R. 56, it was held that where a defendant moves to dissolve an injunction, on complaint and answer alone, the plaintiff cannot introduce affidavits or other proofs in opposition, in addition to those on which the injunction was granted. The same doctrine was held in Hartwell v. Kingsley, 2 C. R. 101, 2 Sandf. S. C. R. 674, and further, that the plaintiff's reply was equally inadmissible in such case. See, also, Millikin v. Carey and Benson v. Fash, before cited.
The principles here laid down are, however, in direct conflict with those in Roome v. Webb, Krom v. Hogan, Hascall y. The Madison University, Florence v. Bates, Smith v. Reno, and Minor v. Terry, as above cited, which clearly lay down the doctrine that, for the purposes of a motion of this nature, a duly verified pleading must be looked upon in the light of an affidavit, and may be so read; and that it is competent for the plaintiff to introduce affidavits on his part, in opposition to the statements contained in a pleading so made use of, in addition to those on which the injunction was granted; and, that such is the case seems now to be clearly settled.
The form of the usual notice of motion to vacate an injunction will be found in the Appendix. Where a modification is sought alone, the terms of the notice will of course depend upon the peculiar circumstances. To give precedents for the affidavits to be used for either purpose, would be clearly impracticable.
In relation to the effect of a traverse of the plaintiff's case by the defendant, where the matter simply rests on the contending affidavits of the parties, and of the impossibility of maintaining a provisional injunction under these circumstance, see Perkins v. Warren, 6 How. 341, before cited.
An order, continuing, modifying, or vacating an injunction, or granting one on notice, is, of course, reviewable by the general Term. It cannot, however, be carried up to the ultimate tribunal, being a matter exclusively resting in the discretion of the court below. See Vandewater v. Kelsey, 3 How. 338; 2 C. R. 3 ; Selden v. Vermilya, 1 Comst. 534; 3 How. 338, 1 C. R. 110. See, also, Genin v. Tompkins, 1 C. R. (N. S.) 415.
If the injunction be vacated or modified, a copy of the order must, of course, be served by the defendant, on the adverse attorney. If, on the contrary, the application be refused, or omitted to be made, the injunction remains in force until the hearing of the . cause, when, if the plaintiff's right to continued relief of this na
ture be made out, it will form part of the decree to be made. Of course, a decree of this nature finally discharges the sureties under sec. 222, from all liability under their undertaking.
So long as an injunction remains in force, the defendant is bound to obey it, and any act of disobedience on his part, will render him liable to an attachment for contempt, in the usual form, as under the old practice; and no application to vacate or modify the order can, as a general rule, be entertained, whilst he is under the operation of an attachment so issued.
In Krom v. Hogan, 4 How. 225, it is laid down with reference to this subject, 1, that a defendant enjoined, cannot plead that he acted by the authority of a third person, though alleging that such person had become entitled to do the act complained of, as a defence against an application for an attachment against him for disobedience; and, 2, that it is a sufficient answer to a motion to vacate an injunction that the defendant is in contempt for disobeying it.
In Capet v. Parker, 3 Sandf. S. C. R. 662, 1 C. R. (N. S.) 90, it was similarly laid down, that no advice of counsel, and not even the declaration of the judge of an inferior court, can justify a party in disobeying an injunction order; and if he does, an attachment will issue.
In Grimm v. Grimm, 1 C. R. (N. S.) 218, it was held, as in Krom v. Hogan, that, where an injunction has been granted on notice, and disobeyed, the court will not review the propriety of granting the injunction in the first instance, on a motion for an attachment against the defendant. If the original order was erroneous, he should have appealed from it; but, having submitted to the order in the first instance, he was bound to obey it.
An appeal from an order granting an injunction, does not stay the operation of the injunction, pending the appeal; notwithstanding which, an attachment will issue to punish the party enjoined, for any violation of that order whilst it remains unreversed.–Stone v. Carlan, 2 Sandf. S. C. R. 738; 3 C. R. 103.
The case of Smith v. Austin, 1 C. R. (N. S.) 137, is, to a certain degree, in conflict with the decisions last cited. It was there held, that a defendant who had violated an injunction order, might yet move to vacate the original order, on the ground that it had been improperly made in the first instance. This conclusion seems open to considerable doubt, and to be overbalanced by the weight of authorities to the contrary; but, even if it be sound, it seems clear that a defendant, whilst in contempt, cannot move to vacate, on any other ground than that of the original invalidity or irregu
larity of the order; and that to submit to an injunction, however granted, whilst that injunction remains unreversed, is the only really proper or prudent course.
In Ross v. Clussman, 3 Sandf. S. C. R. 676, 1 C. R. (N. S.) 91, although the Court said they did not intend to decide whether simply confessing a judgment was a violation of an injunction, restraining a debtor from disposing of his property ; it was held, that, if such confession be made with the intent to change the disposition of the property to the creditor's prejudice, and has that effect, it will be a violation of the injunction, and punishable accordingly. The defendant, in that case, was accordingly fined in the whole amount of the plaintiff's claim, with costs, counsel fee, and expenses, and was committed until the fine was paid.
The provisions of the Code in respect to this important remedy are, in their general spirit, a re-enactment, or rather a fusion, of those contained in different portions of the Revised Statutes, in relation to the remedies thereby granted against the property of foreign corporations, or of absconding, concealed, or non-resident debtors, though with several most important modifications.
The statutory provisions on the former subject will be found in art. I. title IV. chap. VIII. of part III. sec. 15 to 36 inclusive (2 R. S. 457 to 462); and those as to the latter in art. I. title I. chap. V. part II. (2 R. S. 1 to 15). See also art. II. of the same chapter in relation to debtors confined for crimes.
A similar remedy exists on suits in justices' courts. See 2 R. S. 230 to 233. See also Colver v. Van Valen, 6 How. 102; and Bennett v. Brown, 1 C. R. (N. S.) 267. The machinery in relation to the former of the subjects above mentioned, appears to have been the chief guide taken in the framing of that portion of the Code now under consideration, and has been closely followed, the