Smythe v Smythe
| Jurisdiction | England & Wales |
| Judgment Date | 28 May 1818 |
| Date | 28 May 1818 |
| Court | High Court of Chancery |
English Reports Citation: 36 E.R. 378
HIGH COURT OF CHANCERY
smytliu v. smvthe. Marrk .'!l, | US18J. On a motion after the answer for an injunction to stay waste, affidavits tiled subsequently to the answer cannot be read. The bill filed on the 9th of February stated, that the Defendant was tenant for life of certain estates, subject to impeachment of waste, during a term of 30 years ; and after that period, without impeachment of waste ; that the term having expired in January last, the Defendant marked and advertised for sale all the oak, 1 SWANS. 2S3. SMVTHK V. SMYTHE 379 ush, and elm trees (with tew exceptions) on the estates ; and charging that the trees afforded shelter and ornament, and were necessary to the pleasurable enjoyment of the estate, and were for that purpose planted and suffered to grow, prayed an injunction against felling any timber or trees, growing or planted [253] for the ornament of the mansion-house, or for ornament in the grounds and plantations, or saplings unfit to be cut. The answer having been filed on the 26th of February, insisting on a right to cut timber, but denying the fact or intention of cutting ornamental trees, the Plaintiff on this day moved for an injunction to restrain the Defendant from cutting any timber or other trees unfit to be cut in a due and fair course of husbandry. The Solicitor General [Gifford] and Mr. Rose, for the motion. Sir Samuel Romilly, Mr. Bell, and Mr. Doivdeswell for the Defendant. The Plaintiff having in support of the motion offered affidavits subsequent to the answer, tending to prove the fact of equitable waste, the Defendant objected to their being read; insisting that although an injunction obtained on affidavits filed before the answer may be sustained on affidavits filed subsequently, an injunction cannot be originally granted on such affidavits. The Lord Chancellor [Eldon]. I recollect no former case in which this question has arisen. The allegations in the bill are general: if the Plaintiff at once supports them by the statement of particular facts on affidavit, the Defendant possesses an opportunity of explaining or denying those facts in his answer; but i£ the Plaintiff reserves his affidavits till the answer is filed, he deals not altogether fairly witli the Defendant, who is entitled before the answer to be apprized of the points on which the Plaintiff rests his case. I shall pause before 1 extend to cases, in which no previous injunction, has been obtained, the rule of practice which authorizes the admission of affidavits for continuing an injunction, to stay waste against the answer. Affidavits of acts of waste committed [254] since the filing of the bill are entitled to a distinct consideration. April 1. The Lord Chancellor [Eldou'J. On diligent inquiry 1 find no instance in which the Court has permitted the Plaintiff to support a motion for an injunction, by affidavits...
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