The appeal presents this question : A Judge grants an injunction at chambers without notice to the defendant, upon the complaint filed; is the same Judge authorized to modify or vacate the injunction, at chambers-upon the coming in of the answer, without notice to the plaintiff? This depends upon the construction of sections 195 and 297 of the Code of Civil Procedure.
Sec. 195. “ If the injunction be granted by a Judge of the Court without giving notice, the defendant at any time before trial may apply upon notice to a Judge of the Court in which the action is brought to vacate or modify the same. The. *376application may be made upon the complaint or affidavits on which the injunction was granted, or upon the affidavits on the part of the defendant, with or without the answer. ”
Sec. 297. “ An order made out of Court without notice to the adverse party may be vacated or modified without notice, iby the Judge who made it, or may be vacated or modified on notice, in the manner in which other motions are made. ”
Our construction of these two sections, taking them in connection, is — where a Judge acting on the complaint without notice to the defendant, grants an injunction, he may after-wards, acting on the complaint alone, without notice to the plain--fciff modify or vacate the injunction, as irregularly or improvi-olently grairted. But if he goes out of the complaint and takes into consideration the answer and the affidavits filed for the .defendants, the plaintiff is then entitled to notice, and may meet the affidavit by counter-affidavits. This makes the two sections fit into each other, and is the only construction by which they can be made to harmonize.
The defendant then took the objection that the' injunction ought to be vacated in this Court, because it issued without an injunction bond. This Court is confined in cases of an appeal from an interlocutory order, to the very point on which the appeal is taken.
If we were at liberty to notice this objection, we incline to the opinion that although the 'injunction issued irregularly, yet it is not void, and the Judge has power to put the matter right, by allowing a bond to be filed “nunc pro tunc;” in other words we do not consider the injunction bond as a condition precedent, on which the validity of the injunction depends, but as directory to the Judge; and the irregularity may be cured by putting in a bond afterwards on leave.
So, if at liberty to go out of the point made by the appeal, we incline to the opinion that if notice had been given to the plaintiff, so as to authorize the Judge to look into the answer, it discloses ground on which the injunction should not merely have been modified by appointing a receiver, but should have been vacated absolutely; for the answer is responsive to the *377■complaint, and discloses the fact that the lease for two years {as it is termed in the bill) or, more properly, the right to occupy .for two years without rent (a lease always implies the payment of rent, if it be but a barley corn) gives to the defendant ■a right to use the clay for the purpose of making brick, as he .had been doing before.
The case falls under the class of cases in regard to working ■piines that are open at the date of the lease, as distinguished .from opening new mines. Upon this however we express no ■decided opinion.
There is error in the interlocutory order appealed from. ■Judgment reversed;. Plaintiff is entitled to'his costs in this ■Court. This opinion will be certified.
Per Curiam. Judgment reversed.