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Show n-e is an important distinction to be cW-vel f.T ssvs Story, "where the sll.wer contains positive allegat.ons, as , .ac-s rt -oonsiveto me bill, and cases, : '-'e-e the answer, admitting or denying he facts in the bill, sets uo other laets 1 ....... o-avo :.-.nce In mo latter :-J,-.;siecM':c;r Ua-t r... Ten Uvea 2 John ch. K !'. t.,M.,vK,j,r..ll-- T- t'rv be.::? c-t..--i - - -. :'--J ;hes::-cr I :--. rvf.:vd ::V.v v.yii y ie L v !vi..-...':i hL :-y t..o fv:J':u-o lv-e, :u; o-'.y a sjv r. t is re- t or.'.t'-; ::u- :r :;.-: oi" ine a:iver, ::d e-j''.-:.!v so. wbn n. i'.s .nre lilei i:a u- or le:Vro suer .mi n.-t l... li.e o-vv h:: i hour of iie.tr:::?. iory fjvs, "A:"-.-r doi'oad-.t iii vui i?. w:.e:Utr ar.cr is .Hiui a.-j r.f'.her le a'-ue:;,5 t::e -:.. Le r.-; i'.:er t-i-voU to i:-.rwer u-r n s'ji-lv .enoy, uor Hiiii.-r.d h: bill, the L-i: :er' ntit takea by hi:u i to L.o a rt-i'.'.o.v.i.'a. T:ie ri-p.icHtion i tho r.a:n'.:ii' - votd--r.oe cr de:i:l of tiu-a:;.wtr tiu-a:;.wtr or ..-.:.:.cv, mid, in t::e ii:a:n-::ce ii:a:n-::ce of :he in'.., to draw the ltiutttT :.i a u.ri.vl i-sje, vhioh ir.:iy be jrvvi-d e-r d --orovcJ bv ic:::i:or.v." Story Kt. . Sv.K,a::div:e o; 1m Coopt-r h Ti. o".. l: the ca.-e ol '1 roil 1 rs. Kiniuo::?, 11. it was held, that : whoro'"No ri'p.ioalion is tied to the Hi'.-wtT, i: must be taken as true, unle- j ' overcome by two wi::uv. Here, add? ; the cour; mere w: t:;e evidence of tut ! one, which was not properly receivable to c.'n'.rad.ct the aurWi-r, to which no replication as tiled. ' So also it a heid by ttie sa.ne court i:i the case of i B.::;:nia r-s. W ood e'.' cl. o-'T. ( 1 Tne a:;; cr under oath, denies a'.l the; material allocations. No replication j was riled, i nd a trial was had under th.e j b'.ii and answer, a decree was rendered ; dismis:ni; the bill at complainant's ( i eoi-u. Tne rendition ol that decree is ' j assigned forerror' "Upon ihis question ! I the court said: Tt is believed that no, rule of practice is better or more uni- I lormly settled, than mat, when atrial is had upon bill and answer, without re- i plication, the answer must be taken as j I true, so far us it is responsive to the ' bill.'' We fully agree with the doctrine i i laid down by the foregoing authorities, j upon this point, and as a matter of, course, the answer of the defendants i under oath in the case at bar, concludes the riirht of the plaintiff, without repli-; cation, to tile auidavits in support of, the bill upon facts denied by the an-! swer, alter the answer has come in. t'pon the question as to the jurisdic tion of a court of chancery in cases of; trespass, where the bill charges waste! or irreparable injury, I have no doubt of the riirht, where the proper facts to1, make such a case are alleged in the bill. This doctrine was clearly laid down by our Supremo Court in tiio case of Law-j rence vs. Wardell, et al. Such, however, how-ever, was not the ancient rule; but it is ' now universally admitted. See Wil- , bird's Kq. J ur., pages ocl, oN2-3; Thomp- ' son Prov. Kern., pages '210 to 217, inclu-1 sive ; Adams' Jiiq., -JOT and j note; Livingston rs. same; 0 John, Ch. fi., 4'J7; Adams' Eq., 4 ji and note, 4jS ; . and noiec. j In alleging waste and irreparable in-' I jury, it is a common principle in prae- tice, that the pleader must take care to ; state facts which constitute the waste or 1 i in eparable injury; fur the simple charge, that the defendants are committing waste or irreparable injury, is but a conclusion, which no one but the Court, from the facts stated, has a right to draw. And, beside, the pleader should state the character and extent of the injury, and the value of the property, as near ae possible, pos-sible, so being wasted or destroyed, in order that the Court may arrive at an intelligent understanding of the same, to the end that the rights of both parties, so far as they appear, may be protected by proper bond, as "well as by a preliminary injunction. 1 from these considerations, it follows, I that tho motion of defendants to exclude ' the affidavits offered by the plaintiff, on 1 the hearing, and after answer under oath denying the material parts of the bill, i must be sustained. ! |
