#### *Gilliam v. Allen.

April, 1823.

Injunctions† — Refusal of Lower Court to Reinstate— Application to Court of Appeals.‡ — Amotion to rein*165state an injunction on additional evidence tendered by the complainant, is in the natnre of an original application for an injunction; and on the retusai of the chancellor to reinstate the iniunction, an application to the judges of the court of appeals or any of them, is proper.

■ In this case, the plaintiff Gilliam, applied to the chancellor of the Richmond district, for an injunction, which was refused; and ■an application being made to the judges of the court of appeals, it was granted by them.

At a subsequent term of the court oí chancery, a motion was made by the defendant to dissolve the injunction; and it was accordingly dissolved. The plaintiff then took new evidence to support his bill; ■and moved the chancellor to reinstate the injunction. The chancellor, in vacation, denied the said motion. Whereupon, the plaintiff applied to the judges of the court •of appeals, who granted the injunction.

At another term of the court of chancery, the defendant moved to discharge the order of the judges of the court of appeals awarding the injunction. The court was of opinion, that after an injunction has been dissolved and refused to be reinstated, it Is only competent io the court in the last resort, and not to1 a judge or judges, of that court, out of court, to reinstate the Injunction, upon an appeal for that purpose. The court, therefore, for the purpose of bringing tile construction of the law in this respect, before the court of appeals, discharged the said order, as improvidently made.

From this decision of the chancellor, an ■appeal was allowed by the judges of the court of appeals.

Daniel, for the appellee,

contended that the chancellor was correct in his construction of the law, and referred to the 1 Rev.

Code, p. 205, in support of his position.

†

injunctions. — See monographic *note*on “Injunctions” appended to Claytor v. Anthony. 15 Gratt. 518.

‡

Same — Refusal of Lower Court to Reinstate — Application to Court of Appeals. — in Wilder v. Kelley, 88 Va. 279, 13 S. E. Rep. 483, It is said: “But the respondent insists, further, that the act in question *(i. e.*Va. Code, 1887, § 3438) has no application to this case, because the injunction in question was the second and a supplemental bill for an injunction ; but there again he is plainly at fault. Long ago (1823) that question also was put to rest by this court, when this court held that a motion to reinstate the injunction on additional evidence, tendered by the complainant, was in the nature of an original application for an injunction, and that, on the refusal of the chancellor to reinstate the injunction, an application to the judges of this court, or any of them, (under the act of Rev. Code, 1819, vol. 1, p. 205, § 41) was proper under that act, and was not to be discharged by the chancellor (or inferior judge). *Gilliam v. Allen.*1 *Rand.*414. And so the law has remained to the present time.”

Jurisdiction of Court of Appeals — Injunction.—To the point, that § 3438, Va. Code 1887, confers no original jurisdiction upon one of the judges of the court of appeals to award an injunction, except in cases. *165■whereu the application has been made first to a judge ol an inferior court, either in termor in vacation, and has been refused, the principal case is cited in Fredenheim v. Rohr, 87 Va. 769, 13 S. E. Rep. 193.

See further, monographic *note*on "Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.

JUDGE BROOKE,

* April 2. — de_ livered the opinion of the court.

The court is of opinion, that the motion to reinstate the injunction in this case, on additional evidence tendered by the complainant, was in the nature of an original ■application for an injunction; and that on the refusal of the chancellor to reinstate the injunction, an application to the judges of this court, or any of them, was proper, under the 44th section of the act entitled, '‘an act to reduce into one all acts and parts of acts, concerning the superior courts of chancery,”- according to the decision of this court, in the case of Toll-bridge v. Kree-bridge.(a)

The court is further of opinion, that the chancellor having discharged the injunction without deciding on the merits, they arc not now before this court. The decree discharging the injunction on the grounds stated by the chancellor, is therefore reversed, and the cause is remanded to be further proceeded in oil its merits.

(a)

 Ante. p. 206.