
    The Delaware and Raritan Canal and Camden and Amboy Railroad Companies vs. The Raritan and Delaware Bay Railroad Company, The Camden and Atlantic Railroad Company, and others.
    When a bill was filed against a railroad company for an injunction to restrain the construction of a railroad, and a rule was granted to show cause why an injunction should not issue, at the time fixed for the hearing of the rule, and after the papers in the case had been read on such hearing, the complainants asked for three orders.
    1. For leave to amend their bill, to supply an omission which had been made the ground of objection in the defendants’ answer.
    2. For leave to take affidavits to rebut certain allegations in the answer.
    3. For a temporary order restraining the progress of the work until the hearing.
    The motion to amend was granted.
    The motion for a temporary injunction was denied, as being a violation of the spirit of the rule, which forbids the issuing of an injunction to restrain the construction of a public work, authorized by a law of the state, until after hearing upon the rulo to show cause.
    The leave to take further affidavits was also granted.
    The rule of the court (Bule IX, 4,) in terms requires that affidavits annexed to an answer shall be merely in reply to affidavits annexed to the bill; and it would seem to be a fair and reasonable construction of the rule, that affidavits to rebut an answer should be confined to rebutting the affidavits annexed to the answer.
    Where, however, the answer is put in by a corporation, the affidavits necessarily cover the whole scope of the answer, and in such case there-butting affidavits proposed to be taken are within the scope of the rule.
    Such affidavits must be taken on notico. Kx parte affidavits taken under the requirements of Bule V are not competent.
    The application for the order to take affidavits is clearly out of time. It should be made before the reading of the case is commenced. The circumstances of the case held to justify a departure from the ordinary practice.
    Injunction bill to restrain the defendants from the construction and completion of a branch railroad from Jackson, in the county of Camden, to Atsion, in the county of Atlantic, and from making an intended junction between the respective roads of the defendants, for the purpose of forming a continuous railroad between Philadelphia and Few York, or connecting the roads in such manner as to form a continuous line of conveyance by railroad from the Delaware river to Raritan bay, or which may be used for the transportation of passengers or merchandise between the cities of Few York and Philadelphia, or to compete in business between said cities with the railroads of the complainants. The bill was, filed on the nineteenth of July, 1862, and thereupon an order was made requiring the defendants to show cause, on the twenty-ninth of July, why the injunction should not be granted. The order further directed that a copy should be served upon the president or other officer of each of the companies named as defendants in the bill. The order was .served accordingly six days prior to the day designated for the hearing, as required by the rule. (Rule IX, § 2.)
    On the cause being called in the morning of the day designated for the hearing, the counsel of the defendants stated that the answers were ready to be filed, but that they had been prepared in haste under very short notice, copies of the complainants’ bill not having been served upon them until the latest moment allowed by the rule. They wished to create no delay, and would therefore place the answers on file; but they desired the privilege, if the complainants were not now prepared to proceed with the argument, of amending the answers previous to the hearing in any particulars in which they might, through the haste of preparation, prove to be defective or erroneous. The answers having been filed, the counsel of the complainants asked time, until the meeting of the court in the afternoon, to consult and decide whether they would at once proceed with the argument, or ask time to take further affidavits, which was granted.
    At the hour designated, the counsel of the complainants moved the cause, and the reading of the papers was proceeded in. On the ensuing day, the reading of the bill, answers, and affidavits having been concluded, Bradley, for .the complainants, applied for the following orders, viz.
    1. For leave to amend the bill of complaint, by inserting therein an allegation of the acceptance by the complainants of the act of March 16th, 1854, the omission of which was made a ground of objection by the defendants’ answer.
    2. For leave to take further affidavits, to rebut the allegations in the defendants’ answer, of the acquiescence and consent of the complainants in and to the adoption, by the Balitan and Delaware Bay Bailroad, of the route upon which their road is being constructed, and also the allegations of the feasibility and advantage, of the route adopted over other routes more nearly in accordance with the prescribed line of the road.
    3. For a temporary order restraining the progress of the work until the hearing.
    He insisted that the case now stood upon different ground from what it did at the time of granting the rule to show cause. The defendants have filed their answers, which upon their face show a probable ground for granting the injunction. The defendants admit that they are constructing the road upon the route designated in the bill, and do not deny that it is designed to be used as a route for the transportation of passengers and merchandise between the cities of Yew York and Philadelphia. He commented upon various admissions and statements of the answers, which he insisted entitle the complainants to the order.
   The Chancellor.

I deem it my duty, in advance of any further argument, to declare that the restraining order, to operate as a temporary injunction until the hearing, must be denied. It is a violation of the spirit of the rule, which forbids the issuing of an injunction to restrain the construction of any public work authorized by a law of the state until after healing upon the rule to show cause. The power of the court to control the operation of the rule, and to grant a restraining order before or during the progress of the hearing, is not questioned. Yor is it doubted that the defendants may, by their answer, render the granting of the injunction proper without a hearing. If, in the opinion of counsel, the present case falls within that category they would not ask for time to take affidavits. If the case is so doubtful as to require or justify the taking of further affidavits, counsel ought not to be permitted to speculate upon the views of the court. Nor should the court permit itself to be drawn into the expression of any opinion upon the merits of an important question upon a partial argument, which is not designed to involve a final disposition of the question. If the defendants asked indulgence, the court might properly impose terms upon granting the application. But they ask no indulgence. They have promptly prepared for the hearing. It would be onerous and unjust to impose upon them, as a consequence of the indulgence asked by the complainants, the very burthens against which the rule was designed to guard. This part of the application is denied. The defendants will be heard upon the other orders applied for.

The Attorney General and Vroom, for defendants, argued that those parts of the answers of the defendants which the complainants proposed to rebut by affidavits were not new matters, but were directly responsive to the allegations of the bill, and that application for the order, if otherwise admissible, was out of time.

Field, in reply.

The Chancellor.

The rule does not in terms require that the rebutting affidavits to be taken shall be confined to new matters set up by the answer. It does in terms require that the affidavits annexed to the answer shall be merely in reply to affidavits annexed to the bill. And it would seem to be the fair and reasonable construction of the rule, that the rebutting affidavits should be confined within the same limits, viz., to rebutting the affidavits annexed to the answer. Where the answer is by a corporation, which is put in under the corporate seal, the affidavits annexed to the answer necessarily cover the whole scope of the answer. I think, therefore, the affidavits proposed to be taken are fairly within the scope of the rule. Both parties will have leave-to take affidavits, reserving all questions as to their competency to be disposed of at the hearing. Under the terms of the rule, the affidavits must be taken upon notice, that an opportunity of cross-examination may be afforded. Ex parte affidavits taken under the requirements of Rule V are not competent. The application for the order is clearly out of time. It should regularly be made before the reading of the case is commenced. The fact, that the answers were filed on the day fixed for the hearing, and that time was not afforded to counsel for a deliberate examination of their contents, joined with the importance of the interests involved, will justify a departure from the ordinary practice.

The complainants have leave to amend their bill in the particular specified. The amendment proposed, though material, is of a character which is permitted to be made, very-much as a matter of course, either before or after hearing, and after injunction granted, without prejudice to the injunction. The amendment maybe drafted, and annexed to the original hill, in accordance with the forms adopted by the court, without engrossing the amended bill anew.

Vide later decisions in Same v. Same, 3 McCar. 13; and 1 C. E. Gr. 321.  