The Sun.
London, England, 1839-12-06 00:00:00

ROLLS' COURT.—(THIS DA ic.)

WARBURTON V. LONDON AND BLACKWALL RAILWAY
COMPANY.-A NOVEL POINT.

In this case a motion was made yesterday by Mr.
PEMBERTON, on the part of the defendants, that an or-
der, bearing date the 27th November last, might be
varied, by omitting the words " without prejudice to
the injunction."
It appeared the bill was filed on the 16th November,
1839, against the defendants, to restrain them from
dealing with certain lands belonging to the plaintiff,
which lay in the line of the railway. On the same day,
and before appearance, the bill was amended by order.
On the 18th the plaintiffs obtained ex parte the in-
junction. On the 25th, the defendants gave
notice of motion, and moved before the Vice-
Chancellor to dissolve the injunction, and on
the 26th they filed a demurrer to the bill for
want of equity and for want of parties. On the 27th
the plaintiff's obtained of course the order in question to
amend their bill, and which contained the words " with-
out prejudice to the injunction."
Mr. PEMBERTON and Mr. BIGG, for the defendants,
contended that the plaintiffs, by amending their bill, had
submitted to the demurrer, and that the allowance of
the demurrer threw the bill out of Court and destroyed
the injunction. No case could be found in the books
bearing on this point, and the absence of such authority
showed no such order had been obtained as of course.
If this order were allowed to stand the Court would
commit this absurdity, to declare the plaintiff had no
equity and yet to declare that he was entitled to the in-
junction.

Mr. KINDEUSLEY and Mr. G. RUSSELL appeared
fo r the plaintiffs, and in support of the order. The in-
junction had been obtained on the merits. The demurrer
had never been set down, and the amendment which had
been made was merely technical. If the demurrer had
been argued, and the Court had considered the demurrer
good, leave would have been given to amend, and the
injunction, if properly granted on the facts, would have
stood. It had been held over and over again that the
amending of a bill, although it dissolved a common in-
junction, did not dissolve a special injunction obtained
on the merits. The Learned Counsel further submitted
that when defendants were dissatisfied with an order
obtained by the plaintiffs they must move to discharge
it altogether, and could not, as the defendants did in
this case, seek to vary it by striking out certain words.
Mr. PEMBERTON replied.—lt was clear the order
was irregular, because the defendants here obtained that
order, as of course, continuing the injunction on a bill
admitted to contain no equity. As to the form of the
motion, the plaintiffs had introduced into the order
words that ought not to be there ; and having taken an
unfair advantage in the absence of the other parties,
they could not be allowed to maintain it. The de-
fendants had a right to have the irregular words ex-
punged.
The MASTER of the ROLLS said he would make in-
quiry among the officers of the Court upon the point,
but he conceived that when an order to amend was ob-
tained and acted upon. that that order was without pre-
judice to the injunction; whether the words were in-
serted or not.

His LORDSHIP this morning stated that he had made
inquiry, but he could not find that the exact point had
been litigated. He did not, however, think the order
obtained was irregular. It was now the settled practice
that upon an injunction obtained specially on the
merits in a certificate of bill filed, there might be
an order to amend, and as he had stated yester-
day, whether an order to amend contained the words
" without. prejudice to the injunction" or not, it was
without prejudice to the injunction. Where there
was a demurrer filed, the party might have liberty
to amend, the costs depending on whether the demurrer
had been set down or not. According to the usual
practice the order to amend would have prejudiced the
transaction, and therefore he did not think the order in
this case was irregular.—Motion refused with costs.

ATTORNEY•GENERAL V. BROOKE.

Mr. PEMBERTON was then heard in reply in this
case, and _

The MASTER of the ROLLS gave judgment, but it
having been delivered at a late period of the day, we
postpone the report of it for our Morning Edition to-
morrow.