70 S.E. 752 | N.C. | 1911
This is an application for an injunction to stay waste. The court enjoined the defendant until the hearing, and he appealed. There was a difference, under the old practice, between (454) common injunction, as for instance, one to restrain the collection of a money judgment because of an alleged equity against its execution, and one of a special nature in which the injunction is the principal relief demanded, and when, if the defendant is allowed to proceed unrestrained, the damages will be irreparable. In the former case, the injunction was dissolved, as a matter of course, upon the coming in for the answer to the bill, unless the equity was confessed, or, according to our practice, unless the answer was defective in not responding to a material allegation, or was unfair or evasive, so that exceptions to it would lie. In the latter class, a different rule prevailed, because a dissolution of the injunction would allow the injury to be done, and if the defendant denied the allegations of the bill, it could be read as an affidavit on the part of the complainant, the result being that if, upon the whole case, the matter was left in doubt, the injunction was continued to the hearing, so as to afford the complainant opportunity to support his bill by proof, before the injurious act is committed, which would deprive him of all remedy. Lloyd v.Health,
We forbear any discussion of the facts for the further reason that it might prejudice one or the other of the parties in the trial of the case. The order of Judge D. L. Ward was clearly right, and is
Affirmed.
(456)