■m 
 
 UC SOUTH 
 
 ^1 
 
 RN REGK 

 
 SCHOOL OF LAW 
 
 UNIVERSITY OF CALIFORNL\ 
 
 Los Angeles 
 
 GIFT OF 
 
 Roscoe Pound 
 
 M^
 
 POMEROY'S 
 
 EQUITY JURISPRUDENCE 
 
 AND 
 
 EQUITABLE REMEDIES 
 
 SIX VOLUMES. 
 
 POMEROY'S 
 
 EQUITY JURISPRUDENCE, 
 
 IN FOUR VOLUMES. 
 
 By JOHN NORTON POMEROY, LL.D. 
 THIRD EDITION, ANNOTATED AND MUCH ENLARGED, 
 
 AND SUPPLEMENTED BY 
 
 A TREATISE ON EQUITABIE REMEDIES, 
 
 IN TWO VOLUMES. 
 
 By JOHN NORTON POMEROY, Jb. 
 
 SAN FRANCISCO: 
 BANCROFT-WHITNEY COMPANY, 
 
 IxAW PUBLISHSaS AND LaW BooSSBIXBRS. 
 
 1905,
 
 A TREATISE 
 
 ON 
 
 EQUITABLE REMEDIES; 
 
 SUPPLEMENTARY TO 
 
 POMEROY'S EQUITY JURISPRUDENCE. 
 
 (INTERPLEADER; RECEIVERS; INJUNCTIONS; REFORMATION 
 
 AND CANCELLATION; PARTITION; QUIETING TITLE; 
 
 SPECIFIC PERFORMANCE; CREDITORS' SUITS; 
 
 SUBROGATION ; ACCOUNTING ; ETC.) 
 
 BY 
 
 JOHN NORTON POMEROY, Je., A.M., LL.B. 
 
 IN TWO VOLUMES. 
 
 V01.UME OI^E. 
 
 SAN FRANCISCO: 
 
 BANCROFT-WHITNEY COMPANY, 
 
 Law Publishers and Law Booksellers. 
 
 1905. 
 
 ^6
 
 T 
 
 Copyright, 1905, 
 BT 
 
 JOHN NORTON POMEEOY, Jr. 
 
 San Francisco: 
 
 Thb Filmer Brothers Electrotype Company, 
 
 Typographers and Stereotypers.
 
 TO THE MEMORY OF 
 MY FATHER.
 
 PREFACE. 
 
 The present treatise is the outgrowth of a desire to 
 annotate the brief Part Fourth of Pomeroy's Equity 
 Jurisprudence in a way that should secure to the im- 
 portant topics therein contained a treatment as ample 
 as is accorded, in that work, to other parts of Equity. 
 It was my father's purpose — prevented by his untimely 
 death — to supplement his work by the addition of one 
 or more volumes on Equitable Remedies. In choosing 
 the present form of carrying out this design, rather 
 than that of extensive annotation of a brief text, I have 
 had in mind, solely, the consideration of the reader's 
 convenience. It is hardly necessary to state, that no 
 pretension is made to those high qualities, both of style 
 and of original thought, which have given to my father's 
 book its important place in our legal literature. My 
 point of view has been that of the annotator. Thus, 
 I have used to a rather unusual degree, at some sacrifice 
 of brevity, the exact language of the courts, rather than 
 my own; and have retained nearly all the language of 
 my father's brief text pertinent to the subjects treated. 
 All the authorities cited in his Part Fourth have been 
 re-examined; but, as is appropriate to the newness of 
 many of the subjects, the great bulk of the citations is 
 made up of very recent cases. 
 
 In the arrangement of the chapters, the order of chap- 
 ters and sections of the older book has been followed, 
 with but few variations. The paragraphs relating to 
 the division of the equitable remedies into logical groups 
 have been brought together, in the introductory chap- 
 
 (vii)
 
 viii PEEFACE. 
 
 ter; I have also attempted, in that chapter, to present 
 some of the more striking results of the great mass of 
 confused and conflicting dicta on the subject of Laches. 
 The two remedies of Keceivers and Injunctions have 
 allotted to them more than half the space at my com- 
 mand, as is due to the vast importance which they have 
 assumed in very recent years. In the chapters on Re- 
 ceivers, the grounds of the receiver's appointment, and 
 the general principles relating to his possession, etc., 
 have been treated with some fullness; while only an 
 outline is attempted of the more technical matters con- 
 cerning his duties in the management of the estate. In 
 the chapters on Injunctions it has been the constant 
 aim to discriminate between questions of the propriety 
 of the equitable remedy, and questions of substantive 
 or primary rights, — an effort, at times, by no means 
 easy; indeed, as many of these substantive rights are, 
 in practice, secured by the remedy of injunction only, 
 and are comparatively novel as subjects for judicial 
 discussion, it has sometimes been found necessary to 
 examine and state them at considerable length; see, 
 e. g.y Chapter XXVIII, as to injunctions in labor con- 
 troversies. 
 
 The freshness of most of the material relied upon 
 has prevented much assistance from existing text-books ; 
 indeed, the collection of this material has been an enor- 
 mous labor, involving the study of at least twice the 
 number of cases finally selected for citation. I am 
 greatly indebted to my assistant, Mr. E. S. Page, of 
 Oakland, Cal., without whose help the task of surveying 
 so wide a field w'ould have been impossible. 
 
 In conclusion, I cannot refrain, as a student of mod- 
 ern Equity, from adding my testimony of admiration 
 to the great ability of many of our contemporary Amer- 
 ican judges in dealing with the momentous and novel
 
 PEEFACE. ix 
 
 questions which form much of the subject-matter of 
 these volumes. That nearly sixty independent juris- 
 dictions, largely within the life of one generation, should 
 have built up a legal structure so sound, so original, 
 and, in the main, so harmonious in all its parts, as that 
 of our distinctively American Equity, is surely one of 
 the greatest achievements in all legal history. The 
 author may be pardoned if he here repeats the convic- 
 tion, that his father's labors, and the true spirit of 
 equity and liberality with which they were animated, 
 have become a chief source of inspiration to the build- 
 ers of this splendid structure. 
 
 J. N. P., Je. 
 San Francisco. September, 1905.
 
 TABLE OF CONTENTS. 
 
 CONTENTS OF VOLUME L 
 
 CHAPTER I. 
 
 INTRODUCTION. 
 
 ANALYSIS. 
 I. 
 
 19 1-11. Classification and definitions of equitable remedies. 
 § 2. (1) First group: Ancillary and provisional remedies. 
 § 3. (2) Second group: Preventive remedies. 
 § 4. (3) Third group: Keformation and cancellation. 
 §S 5—8. (4) Fourth group: Eemedies by which estates, interestB, 
 and primary rights, either legal or equitable, are di- 
 rectly declared, established or recovered, or the enjoy- 
 ment thereof fully restored. 
 S &. Fourth group: First class. 
 § 7. Fourth group: Second class. 
 § 8. Fourth group: Third class. 
 
 J 9. (5) Fifth group: Eemedies by which equitable obliga- 
 tions are specifically and directly enforced. 
 I 10. (6) Sixth group: Remedies in which the final relief is 
 pecuniary, but is obtained by the enforcement of a lien 
 or charge upon some specific property or fund. 
 I 11, (7) Seventh group: Eemedies in which the final relief is 
 wholly pecuniary, and is obtained in the form of a gen- 
 eral pecuniary recovery. 
 
 n. 
 
 I 12. Equitable remedies acted in personam, 
 
 ^ 13. Same — Modem legislation — Decree may transfer title- 
 Abstract of statutes.
 
 xii TABLE OF CONTENTS. 
 
 § 14. Same — Limitation on. effect of this legislation. 
 
 i 15. Validity of decree based upon service by publication. 
 
 { 16. Remedies in personam beyond the territorial jurisdiction. 
 
 § 17. Same— Limitations of the doctrine. 
 
 i 18. Injunctions against acts in foreign states. 
 
 in. 
 
 fiS 19-36. Laches. 
 
 § 19. In general. 
 
 S 20. Following the analogy of statutes of limitations. 
 
 S 21. General doctrine — Laches is prejudicial delay. 
 
 I 22. Illustrations — Improvements or sales by defendant — ^Losa 
 or obscuring of defendant's evidence. 
 
 S 23. Defense of laches favored by United States eonrts — In- 
 crease in value of the property fatal to plaintiff's claim. 
 
 8 24. Limitation of the general doctrine in case of injunction in 
 support of strict legal right. 
 
 8 25. Whether laches is imputable to the government. 
 
 It 26-36. Excuses for laches. 
 
 IS 26-28. (1) Party's ignorance of his rights. 
 
 8 27. Ignorance of fraud. 
 
 8 28. Breach of express continuing trust. 
 
 8 29. (2) Infancy. 
 
 § 30. (3) Mental unsoundness. 
 
 8 31. (4) Coverture. 
 
 8 32. (5) "When laches not imputed to reTersioners. 
 
 8 33. (6) When party in possession not chargeable with lachsfc 
 
 8 34. (7) Pendency of another suit as excuse for dela7. 
 
 8 35. (8) Miscellaneous excuses. 
 
 8 36. Pleading excuses for laches. 
 
 CHAPTER IL 
 
 INTERPLEADER. 
 
 ANALYSIS. 
 
 8 8T. Common-law interpleader. 
 
 8 38. Interpleader — General nature and object. 
 
 8 39. Rationale of the remedy. 
 
 8 40. Nature of the risk to which plaintiff is expossiL 
 
 8 41. At what stage interpleader may bo brought. 
 
 8 42. The claims, legal or equitable. 
 
 8 43. Essential elements.
 
 TABLE OF CONTENTS. xiii 
 
 fS 44—46, First. The same tiling, debt or duty, 
 § 45. Same; claims of different amounts. 
 S 46. Same; illustrations. 
 
 I 47. Second. Privity between the opposing claimants. 
 §§ 48-51. Third. Plaintiff a mere stake-holder. 
 
 I 49. Same; admission or waiver of plaintiff's claim; dispute 
 
 as to his liability. 
 I 50. Same; stake-holder must be plaintiff; fund must be in his 
 custody. 
 Same; plaintiff may have interest in the legal question. 
 fl 52-57. Fourth. No independent liability to one claimant. 
 
 Same; independent liability arising from nature of orig- 
 inal relation. 
 Same; bailees and agents. 
 Same; tenant and landlord. 
 Same; parties to contracts. 
 
 Same; by receiver; by master of a vessel; by sherifCt 
 Requisites of the bill of complaint. 
 Affidavit of non-collusion; payment into court; costs. 
 Bill in the nature of a bill of interpleader. 
 I 61. Interpleader in legal actions. 
 
 CHAPTER IIL 
 
 $ 51. 
 
 52-57. 
 
 S 53. 
 
 1 54. 
 
 S 55. 
 
 i 56. 
 
 i 57. 
 
 f 53. 
 
 1 59. 
 
 f 60. 
 
 II 62-73. 
 
 § 62. 
 
 II 63-67. 
 
 1 64. 
 
 I 65. 
 
 1 66. 
 
 § 67. 
 
 1 68. 
 
 1 69. 
 
 1 70. 
 
 § 71. 
 
 II 72-73. 
 
 1 72. 
 
 1 78. 
 
 APPOINTMENT OF RECEIVEES. 
 
 ANALYSIS. 
 
 General principles regulating the appointment. 
 Definition of receiver; a provisional remedy. , 
 
 The appointment discretionary. 
 Principles governing the court's discretion; imminenl 
 
 danger. 
 Same; insolvency of defendant. 
 
 Same; probability of plaintiff's success in the suit. 
 Caution observed in making the appointment. 
 Applicant must come with "clean hands" and without 
 
 laches. 
 Inadequacy of legal remedy. 
 Bill fully denied by answer. 
 Must be a suit pending. 
 Statutory regulation of the appointment. 
 The supreme court of judicature act, in England. 
 Statutory provisions in the United States.
 
 xiv TABLE OF CONTENTS. 
 
 SS 74-76. Class I. 
 
 i 74. (1) Infants' estates. 
 
 S 75. (2) Lunatics' estates. 
 
 S 76. (3) Estates of decedents. 
 
 §§ 77-87. Class IL 
 
 § 77. In general. 
 
 SS 78-85. (1) Receivers in settlement of partnership affairs. 
 
 S 78. In general. 
 
 S 79. Existence of partnership must be proved; and necessity 
 
 for dissolution must be shown. 
 
 I 80. Mere right to dissolution not sufficient. 
 
 I 81. Exclusion from management as ground. 
 
 i 82. After dissolution; partner liquidating under agreement. 
 
 § 83. After dissolution; no agreement for liquidation. 
 
 § 84. Eeceiver on death of partner. 
 
 S 85. Miscellaneous. 
 
 S 86. (2) In partition and other suits between co-owners. 
 
 S 87. (3) In suits between conflicting claimants of land. 
 
 IS 88-133. Class IIL 
 
 § 88. In general. 
 
 SS 89-90. (1) Receivers in suits against trustees, for breach of 
 trust. 
 
 I 90. Same; assignees for benefit of creditors. 
 
 § 91. (2) In suits against executors and administrators. 
 
 S§ 92-104. (3) Receivers in suits to enforce mortgages. 
 
 § 92. English rule. 
 
 S 93. General rule in United States; receiver appointed when 
 
 security inadequate and mortgagor insolvent. 
 
 § 94. Same; rule not followed in certain states. 
 
 S 95. Other grounds. 
 
 § 96. General considerations governing the appointment. 
 
 § 97. Effect of stipulations in the mortgage. 
 
 i 98. Time of the appointment. 
 
 ^ 99. Effect of assignment of the mortgaged premises; of ad- 
 ministration thereof; and of homestead right therein. 
 
 S 100. To what the receiver's title extends. 
 
 § 101. Eeceiver on application of junior mortgagee. 
 
 S 102. Same; right to rents as between prior and junior mort- 
 gagees. 
 
 § 103. Receivers in behalf of others than mortgagees. 
 
 § 104. Chattel mortgages. 
 
 §S 105-110. (4) Suits to enforce liena. 
 
 S 105. Suits to enforce equitable Hens; statutory liens. 
 
 § 106. Judgment creditors' suits; in general. 
 
 i 107. Same; receivers of debtor's property subject to prior 
 mortgage.
 
 TABLE OF CONTENTS. 
 
 I 108. 
 
 
 f 109. 
 
 
 i 110. 
 
 
 S 111. 
 
 
 i 112. 
 
 
 { 113. 
 
 
 S 114. 
 
 
 S 115. 
 
 ii 
 
 116-131. 
 
 IS 
 
 116^126. 
 
 
 § 116. 
 
 
 i 117. 
 
 
 S 118. 
 
 I 119. 
 
 i 120. 
 
 
 1 121. 
 
 
 f 122. 
 
 
 i 123. 
 
 
 § 124. 
 
 
 i 125. 
 
 
 i 126. 
 
 
 S 127. 
 
 if 
 
 128-131. 
 
 
 § 128. 
 
 II 
 
 129-131. 
 
 
 1 129. 
 
 
 i 130. 
 
 
 I 131. 
 
 
 1 132. 
 
 
 S 133. 
 
 
 § 134. 
 
 II 135-147. 
 
 
 1 135. 
 
 
 1 136. 
 
 
 1 137. 
 
 Same; nature of the property aa affecting appointment— 
 
 Beceiver of rents. 
 Same; miscellaneous cases. 
 Eeceivers in proceedings supplementary to execution. 
 
 (5) In suits for specific performance, or to enforce 
 vendor's lien. 
 
 (6) In behalf of unsecured creditors before judgment. 
 
 (7) In suits for rescission of contracts for sale of land. 
 
 (8) In suits to enforce payment of annuities. 
 
 (9) In suits for the protection of remainder-men. 
 
 (10) Appointment of receivers of corporations. 
 The inherent jurisdiction of equity. 
 
 In generaL 
 
 Receivers of corporations cautiously appointed. 
 
 Beceiver is an ancillary remedy; not appointed on the 
 petition of the corporation. 
 
 Suit for dissolution and receiver; no inherent jurisdic- 
 tion. 
 
 Stockholders' suit for breach of fiduciary duty by di- 
 rectors. 
 
 Same; power, when not exercised. 
 
 Same; power, when exercised. 
 
 Receiver after dissolution. 
 
 Dissensions in the governing body of the corporatioo, 
 and among the stockholders. 
 
 Receiver on application of creditors. 
 
 In foreclosure of mortgages on corporate property. 
 
 Receivers authorized by statutes. 
 
 Railroad receivers. 
 
 In general. 
 
 In foreclosure of railroad mortgages. 
 
 In general. 
 
 Same; at what stage appointed. 
 
 Same; trustee's right to take possession on default aa 
 affecting the question of appointment. 
 
 (11) Receivers in bankruptcy proceedings. 
 
 (12) Alimony and maintenance — Miscellaneous eases. 
 Fourth class. 
 
 Notice of the application for appointment. 
 
 A receiver is not appointed without notice to the de- 
 fendant. 
 
 Notice is necessary where appointment sought in pend- 
 ing suit. 
 
 To whom notice must be given; waiver; review of em 
 parte appointment.
 
 TABLE OF CONTENTS. 
 
 IS 138-147. Cases wherein notice is not necessary. 
 
 Same; tendency to restriction of ex parte appointments. 
 ti 140-147. Lack of notice as affecting the appointment in the 
 various classes of cases. 
 
 In class I. 
 
 In class II — Partnership — Conflicting claimants of land. 
 S§ 142-147. In class HI — Persons in position of trust or quasi trust 
 
 In mortgage foreclosure. 
 
 In creditors' suits. 
 
 In suits by stockholders against corporations. 
 
 In suits by creditors against corporations. 
 
 Ex parte receivers of railroads. 
 IS 148-153. Selection and eligibility of receiver. 
 
 In general; not disturbed on appeaL 
 
 Appointment of person interested in the suit. 
 
 Appointment of master in chancery; of trustee; of foU- 
 eitor. 
 
 Appointment of partner; of creditor. 
 
 Appointment of corporation officer. 
 
 Same; officers or stockholders appointed from necessity. 
 
 CHAPTER IV. 
 
 138- 
 
 -147. 
 
 § 
 
 139. 
 
 140-147. 
 
 
 140. 
 
 
 141. 
 
 142- 
 
 -147. 
 
 
 143. 
 
 
 144. 
 
 
 145. 
 
 
 146. 
 
 
 147. 
 
 148- 
 
 -153. 
 
 
 148. 
 
 
 149. 
 
 
 150. 
 
 
 151. 
 
 
 152. 
 
 
 153. 
 
 THE RECEIVER'S POSSESSION; AND CONFLICTING 
 APPOINTMENTS. 
 
 ANALYSIS. 
 
 The receiver's possession. 
 
 The receiver's possession is that of the court. 
 
 Eeceiver's possession is subject to existing liens. 
 
 Same; instances of prior liens protected. 
 
 Same; receiver's right to possession as against prior 
 
 lienor. 
 Eeceiver's title vests from order of appointment. 
 Contra; title dates from qualification, or from the time 
 
 when he takes actual possession. 
 Vesting of title in supplementary proceedings. 
 How the receiver may obtain possession of property 
 
 withheld. 
 Interference with receiver's possession. 
 Claimant must apply to the court. 
 Interference with receiver a contempt of court. 
 S 164. His possession protected by injunction. 
 
 SS 154-169. 
 
 
 S 154. 
 
 
 § 155. 
 
 
 § 156. 
 
 
 S 157. 
 
 
 § 158. 
 
 
 S 159. 
 
 
 S 160. 
 
 
 S 161. 
 
 is 
 
 163-169. 
 
 
 § 162. 
 
 
 . i 163.
 
 TABLE OF CONTENTS. xrii 
 
 I 165. Attachment against receiver. 
 
 f 166. Property in receiver's possession not subject to Bale 
 
 under execution. 
 S 167. Same; illustrations; execution sales under subsequent, 
 
 and under prior, liens. 
 S 168. Property in receiver's possession cannot be seized for 
 
 taxes. 
 J 169. Other forms of interference; strikes; arrest; etc. 
 S 170. Conflicting appointments of receivers. 
 
 CHAPTER V. 
 
 ACTIONS AGAINST THE RECEIVER. 
 
 ANALYSIS. 
 
 li 171-179. Actions against the receiver. 
 
 § 171. General rule; leave must be obtained from the appoint- 
 ing court. 
 
 § 172. Whether leave to sue is a "jurisdictional fact," 
 
 S 173. Suits against federal receivers; rule now modified by 
 act of Congress. 
 
 I 174. Same; such suits are "subject to the general equity 
 jurisdiction" of the court of the appointment. 
 
 i 175. Leave of court not necessary where receiver is a tres- 
 passer. 
 
 S 176. Leave to sue receiver, when granted. 
 
 I 177. Practice; whether by petition or independent action. 
 
 § 178. Eeceiver's right to appeal. 
 
 S 179. Judgment against receiver, how enforced; as against 
 successor in office; in case of his discharge. 
 
 CHAPTER VI. 
 
 SUITS BY THE RECEIVER. 
 
 ANALYSIS. 
 
 I 180. Suits by receivers; leave of court necessary, 
 
 § 181. Suits by receiver, in whose name. 
 
 S 182. Appointment cannot be questioned collaterally. 
 
 S 183. Pleading in suit by receiver; must allege his authority. 
 
 i 184. Same; appointment and authority, how alleged.
 
 TABLE OF CONTENTS. 
 
 Proof by receiver of his appointment and powers. 
 Beceiver is subject to the same defenses as the one 
 whom he represents. 
 SS 187-189. Set-ofiE against the receiver. 
 In general. 
 
 Set-off by bank depositor. 
 
 Set-off against corporation receiver, in suit against 
 stockholders. 
 i 190. Statutory receiver of insolvent corporation represents 
 
 its creditors. 
 S 191. Keceiver in supplementary proceedings, how far a repre- 
 sentative of creditors. 
 
 CHAPTER VII. 
 
 § 
 
 185. 
 
 s 
 
 186. 
 
 187- 
 
 -189. 
 
 s 
 
 187. 
 
 § 
 
 188. 
 
 § 
 
 189. 
 
 RECEIVER'S RELATION TO PENDING SUITS; AND 
 WHEN IS HE A NECESSARY PARTY. 
 
 ANALYSIS. 
 
 § 192. Substitution of receiver as plaintiff in pending actions; effect 
 
 of his appointment on pending actions. 
 § 193. Substitution of receiver as defendant in pending actions. 
 S 194. Intervention by receivers. 
 
 § 195. Effect of change of receivers on pending actions. 
 § 196. When is receiver a necessary party. 
 
 CHAPTER VIII. 
 
 RECEIVERS— MANAGEMENT AND DISPOSITION OF 
 PROPERTY. 
 
 ANALYSIS. 
 
 § 197. In general. 
 
 § 198. Discretion allowed to managing receiyer. 
 
 § 199. Duty to obtain instructions. 
 
 § 200. Duty to collect assets. 
 
 S§ 201-203. Eight to continue business. 
 
 § 202. Executory contracts. 
 
 § 203. Existing leases. 
 
 § 204. Eight to make contracts. 
 
 S 205. Eights in relation to employees.
 
 . TABLE OF CONTENTS. 
 
 ( 206. Eight to employ attorneys. 
 
 { 207. Eight to make repairs, improvements, eto* 
 
 § 208. Eight to lease property. 
 
 §S 209-213. Eight to sell property. 
 
 § 209. Sales— In general. 
 
 i 210. Sale is subject to confirmation* 
 
 § 211. Personal property. 
 
 § 212. Sale is subject to existing liens. 
 
 § 213. Effect of reversal of order appointing receiverfl. 
 
 {9 214-216. Eeceivers' certificates. 
 
 S 214. In general. 
 
 S 215. Nature of certificates. 
 
 § 216. Purposes for which certificates may be issued. 
 
 i 217. Liability for fraud, negligence, etc 
 
 CHAPTER IX. 
 
 
 § 218. 
 
 {S 
 
 219-237. 
 
 
 9 219. 
 
 
 9 220. 
 
 
 9 221. 
 
 
 § 222. 
 
 
 9 223. 
 
 9S 
 
 224-237. 
 
 
 9 224. 
 
 
 9 225. 
 
 
 9 226. 
 
 
 9 227. 
 
 9S 
 
 228, 229. 
 
 
 9 229. 
 
 S9 230, 231. 
 
 
 9 231. 
 
 
 9 232. 
 
 
 9 233. 
 
 19 
 
 234-237. 
 
 
 9 234. 
 
 
 S 235. 
 
 
 9 236. 
 
 
 9 237. 
 
 EECEIYERS ; CLAIMS AND ALLOWANCES. 
 
 ANALYSIS. 
 
 Duties and rights of receiver in regard to claims. 
 
 Priority of claims. 
 
 Taxes. 
 
 Expenses of receivership. 
 
 What are proper expenses. 
 
 Expenses of continuing business. 
 
 Same; liability for torts. 
 
 Claims arising prior to receivership — "Preferred 
 
 claims. ' ' 
 Statement and rationale of doctrine. 
 Growth of the doctrine. 
 To what receiverships the doctrine applies. 
 Time within which debts must have been eontraetedi 
 
 Labor claims. 
 Extent of this class. 
 
 Claims for supplies. 
 
 No priority when credit given. 
 
 Claims for repairs — Construction — Beconstruction. 
 
 Miscellaneous claims. 
 
 Claims denied priority. 
 
 Money loaned. 
 
 Eental of leased lines. 
 
 Car rentals — Track rentals. 
 
 Personal injuries.
 
 <i 
 
 238-243. 
 
 
 S 238. 
 
 
 S 239. 
 
 
 § 240. 
 
 
 § 241, 
 
 
 S 242. 
 
 
 S 243. 
 
 
 § 244. 
 
 
 5 245. 
 
 TABLE OF CONTENTS, 
 
 Compensation of receiver. 
 
 In general. 
 
 Discretion as to amount. 
 
 Matters considered in determining amount. 
 
 Effect of revocation or reversal of order appointing 
 
 receiver. 
 Effect of agreement. 
 Effect of adjudication of bankruptcy. 
 Payment of costs when fund not sufficient. 
 Payment of costs where receivership proceedings Toid. 
 
 CHAPTER X. 
 
 EEMOVAL AND DISCHAEGE OF EECEIVERS. 
 
 ANALYBIB. 
 
 I 246. Removal of receiver. 
 S 247. Discharge of receiver. 
 
 CHAPTER XI. 
 
 FOKEIGN EECEIVEES; ANCILLAEY EECEIVERS. 
 
 ANALYSIS. 
 
 S 248. General tendency toward recognition of rights of for- 
 eign receiver. 
 
 { 249. Eight of foreign receiver to sue outside of jurisdiction 
 of court of appointment is only recognized where 
 that court has conferred the power. 
 
 8 250. Eight of foreign receiver to sue not dependent on ex- 
 istence of cause of action in state exercising comity. 
 
 I 251. Eight of attaching creditors against foreign receiver. 
 
 S 252. Eight of attaching creditors with reference to citizen- 
 ship or residence. 
 
 § 253. Eights of foreign receivers against subsequent attach- 
 ing creditors. 
 
 § 254. Same; as affected by question of citizenship or resi- 
 dence. 
 
 § 255, Actions by foreign receiver not dependent on comity; 
 (1) Property rights. 
 
 I 256. Same; (2) Eights by contract. 
 
 I 257. Power of court of appointment over receiver and other 
 parties.
 
 TABLE OF CONTENTS. zzi 
 
 SS 258-261. Ancillary receivers. 
 
 § 258. Appointment. 
 
 § 259. Administration of the fund. 
 
 § 260. Same; how far conclusive on primary recelyer. 
 
 § 261. Surrender of fund. 
 
 CHAPTER XIL 
 
 INJUNCTIONS; GENERAL PRINCIPLES— INJUNC- 
 TION TO PROTECT EQUITABLE ESTATES AND 
 INTERESTS. 
 
 ANALYSIS. 
 
 § 262. General nature and object — Abstract of statutes. 
 
 § 263. Fundamental principle. 
 
 § 264. Preliminary or interlocutory injunctions. 
 
 S§ 265-269. Injunctions to protect purely equitable estates or in- 
 terests, and in aid of purely equitable remedies. 
 
 § 266. Instances; to restrain breaches of trust. 
 
 § 267. To restrain violation of confidence. 
 
 § 268. Same; disclosure of trade secrets. 
 
 i 269. Other instances. 
 
 CHAPTER XIII. 
 
 INJUNCTIONS TO PREVENT THE VIOLATION OP 
 CONTRACTS. 
 
 ANALYSIS. 
 
 I 270. Injunctions to prevent violation of contracts — In general. 
 
 § 271. Principles regulating specific performance apply. 
 
 §§ 272-284. Eestrictive covenants*— Equitable easements. 
 
 § 273. Questions stated. 
 
 § 274. Action by grantor. 
 
 § 275. Action by purchaser of other land. 
 
 § 276. Eestrictions as to use of property. 
 
 § 277. Eestrictions which are enforceable. 
 
 § 278. Liability of grantor. 
 
 § 279. Effect of change of character of neighborhood, 
 
 § 280. Complainant must come into court with clean hands'— 
 
 Acquiescence. 
 
 § 281. Eemedy independent of amount of injury.
 
 § 282. 
 
 § 283. 
 
 § 284. 
 
 {§ 285-287. 
 
 § 286. 
 
 § 287. 
 
 |§ 288-291. 
 
 § 289. 
 
 § 290. 
 
 § 291. 
 
 §§ 292-299. 
 
 § 293. 
 
 S 294. 
 
 § 295. 
 
 § 296. 
 
 § 297. 
 
 { 298. 
 
 § 299. 
 
 i 300. 
 
 TABLE OF CONTENTS. 
 
 Actual notice not necessary. 
 
 Mandatory injunctions. 
 
 Extension of the doctrine — Application to personal prop- 
 erty. 
 
 Injunctions against breaches of covenant between land- 
 lord and tenant. 
 
 Same — Eights of lessee. 
 
 Same — Eights of sub-tenant. 
 Contracts for personal service of a special character. 
 
 Same: Lumley v. Wagner — Whether stipulation must be 
 expressly negative in form. 
 
 Same — No relief upon contracts for ordinary services- 
 Limitations. 
 
 Other agreements, generally negative in their nature. 
 
 Agreements not to carry on a trade, express or implied— 
 Sale of good-will. 
 
 Same — Injunctions against employees. 
 
 Agreements not to compete. 
 
 Contracts conferring an exclusive right. 
 
 Miscellaneous agreements, expressly negative. 
 
 Miscellaneous agreements, not expressly negative. 
 
 Adequate remedy at law. 
 
 Effect of provisions for penalties and liquidated dam- 
 ages. 
 
 CHAPTER XIV. 
 
 INJUNCTIONS AGAINST CORPORATIONS AND THEIR 
 OFFICERS. 
 
 ANALYSIS. 
 
 Ultra vires acts— Questions stated. 
 
 Suits by the attorney-generaL 
 
 Suits by stockholders. 
 
 Suits by third parties. 
 
 Suits by stockholders against directors for wrongful 
 
 dealing with corporate property. 
 Other suits by stockholders. 
 
 No injunction to determine title to corporate office. 
 Existence of a corporation cannot be challenged by in- 
 junction — Injunction in connection with receivership. 
 
 i§ 301-304. 
 
 § 302. 
 
 S 303. 
 
 § 304. 
 
 § 305. 
 
 § 306. 
 
 § 307. 
 
 S 308.
 
 TABLE OF CONTENTS. ' xxiii 
 
 CHAPTER XV. 
 
 INJUNCTIONS RELATING TO VOLUNTARY ASSOCIA- 
 TIONS AND NON-STOCK CORPORATIONS. 
 
 ANALYSIS. 
 § 309. In general. 
 § 310. Expulsion of members. 
 § 311. Same — Injury to property. 
 § 312. Expulsion from religious organizations. 
 § 313. Expulsion from other societies. 
 § 314. Protection of church property rights. 
 
 § 315. Same — When rights depend upon decision of superior church 
 tribunal. 
 
 CHAPTER XVI. 
 
 INJUNCTIONS BETWEEN MORTGAGOR AND 
 MORTGAGEE. 
 
 ANALYSIS. 
 
 S 316. Injunction against sale under power in mortgage or trust 
 deed. 
 
 § 317. Same; in case of usury. 
 
 S 318. Same; payment by the mortgagor, or necessity for an account- 
 ing. 
 
 § 319. Injunction on behalf of the mortgagee. 
 
 S 320. Injunctions relating to chattel mortgages. 
 
 CHAPTER XVII. 
 
 INJUNCTIONS AGAINST PUBLIC OFFICERS. 
 
 ANALYSIS. 
 
 § 321. Public officers — In general. 
 
 § 322. Same — When relief granted. 
 
 § 323. Same — When not granted. 
 
 § 324. Political acts, 
 
 § 325. Federal officers. 
 
 § 326. State officers — Tax-payers' suits. 
 
 § 327. No relief when, in effect, against state.
 
 ZXIT 
 
 TABLE OF CONTEiNTS. 
 
 § 328. Injunctions against executive officers 
 
 § 329. Discretionary acts. 
 
 § 330. Suits by officers against other officers. 
 
 § 331. Elections. 
 
 § 332. Same — Continued. 
 
 § 333. Title to public office. 
 
 § 334. Same — Continued. 
 
 § 335. Possession of office protected. 
 
 § 336. Payment of salaries. 
 
 § 337. Removal of officers. 
 
 S 338. Action of de facto officers. 
 
 CHAPTER XVIII. 
 
 INJUNCTIOXS AGAINST MUNICIPAL CORPORA- 
 TIONS AND THEIR OFFICERS. 
 
 ANALYSIS. 
 
 8( 339-343. Limitations on the exercise of the remedy, 
 
 S 339. Injunction against legislative acts — Cases examined. 
 
 { 340. Same — Injunctions generally refused. 
 
 S 341. Same — Exceptions to the general rule. 
 
 S 342. Second limitation; acts within discretionary powers not 
 
 interfered with. 
 § 343. No injunction to test the validity of municipal organ- 
 ization. 
 S§ 344-353. Tax-payers' suits. 
 § 344. General principle. 
 § 345. Rationale of the doctrine. 
 § 346. New York rule. 
 § 347. The rule in Massachusetts. 
 § 348. The rule in Ohio. 
 8§ 349-353. Illustrations of the general principle. 
 § 349. Municipal aid bonds. 
 § 350, Injunctions against exceeding constitutional or statutory 
 
 limits of indebtedness. 
 § 351. Awarding contracts — "Lowest bidder" — Discriminating 
 
 in favor of union labor. 
 § 352. Injunctions against removal of county seats, 
 § 353. Miscellaneous illustrations. 
 § 354. Relief against ordinances injuring the individual in a 
 
 capacity other than that of tax-payer. 
 S 355. Injunctions against wrongful acts in generaL
 
 TABLE OF CONTENTSw 
 
 CHAPTER XIX. 
 
 INJUNCTION AGAINST TAXATION; AND AGAINST 
 SPECIAL OR LOCAL ASSESSMENTS. 
 
 ANALYSIS. 
 
 § 356. In general:— Two classes of Btatea. 
 
 S 357. Principles of general application — Irregnlarities — Ten- 
 der. 
 
 19 358-362. First type. 
 
 S 359. Same; Inadequacj of the legal remedj — Taxes on per- 
 sonal property. 
 
 § 360. Same; Fraud. 
 
 S 361. Same; Multiplicity of Ruita. 
 
 § 362. Same; Cloud on title. 
 
 S 363. Second type. 
 
 § 364. Special or local assessmenta. 
 
 S§ 365-378. United States courts. 
 
 S 365. Federal taxes. 
 
 § 366. State taxes; federal jurisdiction. 
 
 § 367. Adequate remedy in state courts. 
 
 SS 368-375. Grounds of the equitable jurisdiction, 
 
 § 369. Personal property. 
 
 S 370. Irreparable injury. 
 
 S 371. "Valuation resulting in unjust discrimination 
 
 S 372. Multiplicity of suits. 
 
 § 373. Cloud on title. 
 
 S 374. State tax in violation of contract. 
 
 S 375. Injunction warranted by state laws. 
 
 § 376. Tender. 
 
 S 377. Property in hands of federal rp^ieiver. 
 
 § 378. Special assessments. 
 
 § 379. Alabama. 
 
 § 380. Arizona. 
 
 S§ 381, 382. Arkansas. 
 
 § 382. Special assessments, 
 
 §§ 383,384. California. 
 
 § 384. Special assessment!, 
 
 SS 385,386. Colorado. 
 
 § 386. Special assessments, 
 
 § 387. Connecticut. 
 
 § 388. Delaware. 
 
 § 389. Florida.
 
 TABLE OF CONTENTS. 
 
 i§ 390,391. Georgia. 
 
 § 391. Special assessments. 
 
 § 392. Idaho. 
 
 i§ 393-399. Illinois. 
 
 § 393. In general. 
 
 § 394. Illegality. 
 
 S 395. Illegal municipal taxes. 
 
 § 396. Illegal taxes; parties plaintiflf. 
 
 § 397. Exempt property. 
 
 § 398. Fraudulent increase of assessmea^ 
 
 § 399. Special or local assessments. 
 
 §S 400^02. Indiana. 
 
 § 401. Tender of legal tax, 
 
 § 402. Special assessments. 
 
 §§ 403,404. Iowa. 
 
 § 404. Special assessments. 
 
 §§ 405-408. Kansas. 
 
 § 406. Parties. 
 
 § 407. Tender. 
 
 § 408. Special assessments. 
 
 § 409. Kentucky. 
 
 § 410. Louisiana. 
 
 § 411. Maine. 
 
 §§ 412,413. Maryland. 
 
 § 413 Special assessments. 
 
 § 414. Massachusetts. 
 
 §§ 415,416. Michigan. 
 
 § 416. Special assessments. 
 
 5§ 417,418. Minnesota. 
 
 § 418. Special assessments. 
 
 § 419. Mississippi. 
 
 §§ 420,421, Missouri. 
 
 § 421. Special assessments. 
 
 § 422. Montana. 
 
 S§ 423,424. Nebraska. 
 
 § 424. Special assessments, 
 
 § 425. Nevada. 
 
 § 426. New Hampshire. 
 
 § 427. New Jersey. 
 
 § 428. New Mexico. 
 
 §§ 429-431. New York. 
 
 § 430. Cloud on title. 
 
 § 431. Special assessments 
 
 S§ 432,433. North Carolina, 
 
 § 433. Special assessments, 
 § 434. North Dakota.
 
 TABLE OF CONTENTa 
 
 §S 435,436. 
 
 Ohio. 
 
 § 436. 
 
 Special assessments. 
 
 §§ 437-439. 
 
 Oklahoma, 
 
 § 438. 
 
 Increase of assessment. 
 
 § 439. 
 
 Tender. 
 
 §§ 440,441. 
 
 Oregon. 
 
 § 441. 
 
 Special assessments. 
 
 § 442. 
 
 Pennsylvania. 
 
 § 443. 
 
 Ehode Island. 
 
 § 444. 
 
 South Carolina, 
 
 §§ 445,446. 
 
 South Dakota. 
 
 § 446. 
 
 Special assessments. 
 
 § 447. 
 
 Tennessee. 
 
 §S 448,449. 
 
 Texas. 
 
 § 449. 
 
 Special assessments. 
 
 § 450. 
 
 Utah. 
 
 §§ 451,452. 
 
 Vermont. 
 
 § 452. 
 
 Special assessments. 
 
 § 453. 
 
 Virginia. 
 
 §5 454,455. 
 
 Washington. 
 
 § 455. 
 
 Special assessments. 
 
 §§ 456,457. 
 
 West Virginia. 
 
 § 457. 
 
 Special assessments. 
 
 S§ 458-463. 
 
 Wisconsin. 
 
 § 459. 
 
 Defects going to the validity of the assessment. 
 
 § 460. 
 
 Defects not going to the validity of the assessment. 
 
 § 461. 
 
 Cloud on title. 
 
 § 462. 
 
 Payment or tender. 
 
 § 463. 
 
 Special assessments. 
 
 S 464. 
 
 Wyoming, 
 
 CHAPTER XX. 
 
 INJUNCTION AGAINST EXERCISE OF THE POWEE 
 OF EMINENT DOMAIN. 
 
 ANALYSIS. 
 
 § 465. General principle. 
 
 I 466. No injunction against prosecution of condemnation pro- 
 ceedings, 
 
 §§ 467-470. Eailroads in streets and highways. 
 
 § 468. Same — Fee of street in abutting owner. 
 
 § 469. Same — Fee of street in municipality. 
 
 § 470. Same; New York rule; Elevated Eailroad cases.
 
 i TABLE OF CONTENTS. 
 
 § 471. Changing grade of streets; other uses of streeta; t»- 
 
 cating streets. 
 S 472. Acquiescence. 
 S 473. Assessment of damages by the court, with injunction 
 
 as alternative to their payment. 
 
 CHAPTER XXI. 
 
 INJUNCTIONS TO PEEVENT OR RESTRAIN THE 
 COMMISSION OF TORTS IN GENERAL: TO RE- 
 STRAIN CRIMINAL ACTS. 
 
 ANALYSIS. 
 
 { 474. The estates and interests generally legaL 
 
 § 475. Kinds and classes of torts restrained. 
 
 § 476. Criminal acts— In general. 
 
 § 477. Applications of the principle. 
 
 § 478. Same — Public nuisance — Suits by individuals. 
 
 § 479. Same— Same — Suit by government. 
 
 S 480. Same — Eight of government to enjoin acts analogous to 
 
 nuisance. 
 
 S 481. Exception— Libel. 
 
 CHAPTER XXII. 
 
 INJUNCTION AGAINST WASTE. 
 
 ANALYSIS. 
 
 § 482. Origin and nature of the jurisdiction. 
 
 IS 483-490. Extent of equity jurisdiction. 
 
 § 483. Legal waste. 
 
 § 484. Waste must be threatened. 
 
 § 485. Legal waste which is not subject to injunction. 
 
 § 486. Must the injury be irreparable! 
 
 § 487. Plaintiff's title. 
 
 § 488. Title in dispute. 
 
 § 489. Equitable waste— Definition. 
 
 § 490. Extent of jurisdiction. 
 
 § 491. Relief against waste in equity. 
 
 5 492. Parties for and against whom injunction will issue.
 
 TABLE Oi^ CONTENTS. 
 
 CHAPTER XXIIL 
 
 INJUNCTIONS AGAINST TRESPASS. 
 
 ANALTSIS. 
 
 Nature of the jurisdiction. 
 ii 494-499. Extent of the jurisdiction. 
 
 Irreparable injury. 
 
 Continuous or repeated trespasses. 
 
 Insolvency of defendant. 
 
 Miscellaneous cases. 
 
 Eminent domain. 
 
 What plaintiff must allege. 
 
 Threatened trespass. 
 SI 502-506. Dispute as to title. 
 
 General principles. 
 
 Defendant in possession enjoined from destmetlT* 
 acts. 
 
 Defendant not enjoined from mere use. 
 
 Plaintiff in possession. 
 
 Establishment of title. 
 
 Possession, when given by injunction. 
 
 The balance of injury. 
 
 Personal remedy open to plaintiff. 
 
 Relief given. 
 
 Estoppel, laches, acquiescence. 
 
 CHAPTER XXIV. 
 
 § 493. 
 
 494-499. 
 
 § 495. 
 
 § 496. 
 
 § 497. 
 
 S 498. 
 
 fi 499. 
 
 § 500. 
 
 § 501. 
 
 502-506. 
 
 S 502. 
 
 S 503. 
 
 i 504. 
 
 § 505. 
 
 S 506. 
 
 § 507. 
 
 § 508. 
 
 i 509. 
 
 < 510. 
 
 1 511. 
 
 INJUNCTION AGAINST NUISANCE. 
 
 ANALYSIS. 
 
 I 512. Nature of the jurisdiction. 
 
 { 513. When the legal remedy is adequate. 
 
 If 514-517. Extent of the jurisdiction. 
 
 S 514. Irreparable and continuing or recurring nuisances. 
 
 § 515. Illustrations. 
 
 5 516. Injunctions on sole ground of preventing multiplicity 
 
 of suits. 
 
 S 517. Miscellaneous grounds of jurisdiction. 
 
 S 518. What the plaintiff must allege.
 
 TABLE OF CONTENTS. 
 
 J5 519-522. Previous trial at law. 
 
 Not necessary to granting of temporary injunction^ 
 
 Nor in all cases of permanent injunctions. 
 
 Cases in whicli it is important. 
 i§ 523-525. Threatened nuisance. 
 
 Imminent danger. 
 
 Illustrations. 
 
 Must threatened injury be irreparablef 
 
 Damage necessary to justify an injunction. 
 
 Criminal and statutory nuisances. 
 
 The defendant's motive. 
 S§ 529-531. The balance of injury. 
 
 Balance between private parties. 
 
 Balance between the plaintiff and the publie. 
 
 Nuisance easily avoided by the plaintiff. 
 {§ 533-536. Relief given. 
 
 Mandatory injunctions. 
 
 Form of injunction. 
 
 Temporary injunctions. 
 
 Complete relief. 
 
 Estoppel, acquiescence, laches. 
 
 Parties. 
 
 Reasonable use not a defense. 
 
 Nor the fact that other causes contributiw 
 
 Legalized nuisances. 
 
 Public nuisances. 
 
 519- 
 
 -522. 
 
 § 
 
 520. 
 
 § 
 
 521. 
 
 § 
 
 522. 
 
 523- 
 
 -525. 
 
 § 
 
 523. 
 
 § 
 
 524. 
 
 § 
 
 525. 
 
 § 
 
 526. 
 
 § 
 
 527. 
 
 § 
 
 528. 
 
 529- 
 
 -531. 
 
 § 
 
 530. 
 
 §• 
 
 531. 
 
 § 
 
 532. 
 
 533- 
 
 -536. 
 
 § 
 
 533. 
 
 § 
 
 534. 
 
 § 
 
 535. 
 
 
 536. 
 
 
 537. 
 
 
 538. 
 
 
 539. 
 
 
 540. 
 
 
 541. 
 
 
 542.
 
 A TREATISE 
 
 ON 
 
 EQUITABLE REMEDIES.
 
 EQUITABLE REMEDIES 
 
 CHAPTER L 
 
 INTEODUCTION. 
 
 ANALYSIS. 
 I. 
 
 is 1-11. Classification and definitions of equitable remedies, 
 § 2. (1) First group: Ancillary and provisional remedies. 
 S 3. (2) Second group: Preventive remedies. 
 f 4. (3) Third group: Eeformation and cancellation. 
 §§ 5-8. (4) Fourth group: Eemedies by which estates, interests, 
 and primary rights, either legal or equitable, are di- 
 rectly declared, established or recovered, or the enjoy- 
 ment thereof fully restored. 
 § 61. Fourth group: First class. 
 S 7. Fourth group: Second class. 
 S 8. Fourth group: Third class. 
 
 f 9. (5) Fifth group: Remedies by which equitable obliga- 
 tions are specifically and directly enforced. 
 I 10. (6) Sixth group: Remedies in which the final relief is 
 pecuniary, but is obtained by the enforcement of a lien 
 or charge upon some specific property or fund, 
 f 11. (7) Seventh group: Eemedies in which the final relief L" 
 wholly pecuniary, and is obtained in the form of a gen- 
 eral pecuniary recovery. 
 
 n. 
 
 I 12. Equitable remedies acted in personam^ 
 
 I 13. Same — Modem legislation — Decree may transfer title- 
 Abstract of statutes. 
 Equitable Eemedies, Vol. I— 1
 
 i 1 EQUITABLE REMEDIES. 2 
 
 Same — Limitation on effect of this legislation. 
 Validity of decree based upon service by publication. 
 Eemedies in personam beyond the territorial jurifldictioiu 
 Same — Limitations of the doctrine. 
 Injunctions against acts in foreign states. 
 
 m. 
 
 Laches. 
 
 In generaL 
 
 Following the analogy of statutes of limitations. 
 
 General doctrine — Laches is prejudicial delay. 
 
 Illustrations — Improvements or sales by defendant — ^Loss 
 or obscuring of defendant's evidence. 
 
 Defense of laches favored by United States courts — In- 
 crease in value of the property fatal to plaintiff's claim. 
 
 Limitation of the general doctrine in case of injunction in 
 support of strict legal right. 
 
 Whether laches is imputable to the government. • 
 
 Excuses for laches. 
 
 (1) Party's ignorance of his rights. 
 Ignorance of fraud. 
 Breach of express continuing trust. 
 
 (2) Infancy. 
 
 (3) Mental unsoundness. 
 
 (4) Coverture. 
 
 (5) When laches not imputed to reversioners. 
 
 (6) When party in possession not chargeable with laches. 
 
 (7) Pendency of another suit as excuse for delay, 
 
 (8) Miscellaneous excuses. 
 i 36. Pleading excuses for laches. 
 
 { 1. Classification and Definitions of Eqnitable Remedies. 
 It is the chief purpose of this introductory chapter to 
 treat, somewhat briefly, of the maxim, "Equity acts in 
 personam" and of the effect of decrees in equity; and 
 to present the more important results of the recent 
 cases on the doctrine of Laches. Other general prin- 
 ciples and maxims which affect the whole range of 
 equitable remedies have either been sufficiently treated 
 in the work to which the present volumes are a supple- 
 
 
 § 14. 
 
 
 § 15. 
 
 
 i 16. 
 
 
 8 17. 
 
 
 5 18. 
 
 i§ 13-36. 
 
 
 § 19. 
 
 
 S 20. 
 
 
 § 21. 
 
 
 § 22. 
 
 
 i 23. 
 
 
 1 24. 
 
 
 § 25. 
 
 ss 
 
 26-36. 
 
 f§ 
 
 26-28. 
 
 
 S 27. 
 
 
 S 28. 
 
 
 i 29. 
 
 
 § 30. 
 
 
 8 3L 
 
 
 8 32. 
 
 
 8 33. 
 
 
 8 34. 
 
 
 8 35.
 
 3 INTEODUCTION. {§2,3 
 
 ment, or may be more appropriately taken up in their 
 application to the individual remedies. But before 
 taking up these matters, the author conceives that it 
 may serve the convenience of many readers to collect 
 and compare Professor Pomeroy's classification and defi- 
 nitions of the various equitable remedies, as set forth 
 in Part IV of his work, with the several tentative classi- 
 fications of the same subject-matter made in the earlier 
 chapters of that work.^ 
 
 § 2. (1) First Group: Ancillary and Provisional Reme- 
 dies — "The first class embraces those remedies which 
 are wholly ancillary and provisional." "The distin- 
 guishing characteristic of the remedies belonging to 
 this group is, that they determine no primary rights, 
 and grant no final reliefs, either directly or indirectly. 
 They are, in fact, instruments and means by which the 
 court is enabled more conveniently and perfectly to 
 adjudicate upon the ultimate rights and interests of the 
 parties, and to award the final reliefs, in the further 
 judicial proceedings to which they are auxiliary, and of 
 which they are really the preliminary stage." This 
 class includes interpleader and receivers.'^ 
 
 § 3. (2) Second Group: Preventive Remedies "Preven- 
 tive remedies, or those by which a violation of a primary 
 right is prevented before the threatened injury is done, 
 or by which the further violation is prevented after the 
 injury has been partially effected, so that some other 
 relief for the wrong actually accomplished can be 
 granted. The ordinary injunction, whether final or pre- 
 
 1 Pom. Eq. Jur., §§ 110, 112, 171, 185-189. 
 
 2 Pom. Eq. Jur., §§ 171, 1316, 1319. Section 171 includes in this 
 group, also, "the ordinary preventive injunction."
 
 f 4 EQUITABLE REMEDIES. 4 
 
 liminary, is the familiar example of this class ; the man- 
 datory injunction is essentially a restorative remedy."* 
 
 § 4. (3) Third Group: Reformation and Cancellation — 
 "The ultimate object of the remedies belonging to this 
 group is the establishment or protection of interests, 
 estates, and primary rights; but this object is accom- 
 plished indirectly. While these remedies are not so 
 completely ancillary as interpleader and receivership, 
 yet they are to a certain extent auxiliary. They do not, 
 like a specific performance, or the execution of a trust, 
 or an assignment of dower, or partition of land, operate 
 directly and immediately to establish the plaintiff's title, 
 and to confer upon him the complete dominion over 
 his estate — the ultimate relief which he seeks. Their 
 effect in establishing his ultimate dominion is indirect. 
 They are often used as the preparatory step which en- 
 ables him to obtain, sometimes in the same action, and 
 sometimes in a subsequent suit, the ultimate remedy 
 which finally establishes his rights or obligations, or 
 restores him to the full enjoyment of his estate. The 
 reformation of a policy of insurance is not a final rem- 
 edy; but it establishes the real contract, and thus en- 
 ables the assured to recover the amount actually due 
 according to the terms of that contract. The reforma- 
 tion of a deed does not directly restore the grantee to 
 the dominion and possession of the land which had been 
 omitted; but it places him in a position which enables 
 him, if necessary, to assert his dominion and recover 
 the possession. The cancellation of a deed does not of 
 itself directly establish the plaintiff's title and put him 
 in possession of the land, but it enables him, if neces- 
 sary, to assert his title and obtain the possession. These 
 remedies may be obtained on behalf of either a legal or 
 
 8 Pom. Eq. Jar., SS 112, 1316i.
 
 6 INTEODUCTION. I 5 
 
 an equitable interest, by either a legal or an equitable 
 owner. The remedies constituting this group are the 
 two following: Keformation or re-execution of instru- 
 ments, and rescission, cancellation, surrender up, or dis- 
 charge of instruments."* 
 
 § 5. (4) Fourth Group: Eemedies by Which Estates, In- 
 terests, and Primary Eights, Either Legal or Equitable, are 
 Directly Declared, Established, or Recovered, or the Enjoyment 
 Thereof Fully Restored. — "All the remedies belonging to 
 
 4 4 Pom. Eq. Jur., § 1375. To the same effect, 1 Pom. Eq. Jur., 
 § 171 ("second class"); 4 Pom. Eq. Jur., § 1316. The classification, 
 Ibid, § 112, contains these definitions: "5. Remedies of Reformation, 
 Correction, or Re-execution, by means of which a written instrument, 
 contract, deed, or other muniment of title, which for some reason 
 does not conform to the actual rights and duties of the parties 
 thereto, is reformed, corrected, or re-executed. Sometimes this 
 remedy is asked for and obtained simply on its own account, merely 
 for purpose of correcting the instrument; but it is often, and per- 
 haps generally, obtained as a necessary step to the granting of a 
 further and more substantial relief needed by the plaintiff, such as a 
 restoration to full rights of property, or the specific performance of 
 the contract after it has been corrected. 6. Eemedies of Rescission 
 or Cancellation, or those by which an instrument, contract, deed, 
 judgment, and even sometimes a legal relation itself subsisting be- 
 tween two parties, is, for some cause, set aside, avoided, rescinded, 
 or annulled. This remedy, like the preceding, is sometimes con- 
 ferred as the sole and final relief needed by the plaintiff, but is often 
 the preliminary step to a more effective remedy by which his primary 
 right is declared or restored." In Professor Pomeroy's arrangement 
 of equitable remedies in three classes (Pom. Eq. Jur., § 110), viz., 
 "those which are entirely different from any kind of reliefs known 
 and granted by the law" (e. g., injunction, reformation, specific per- 
 formance, etc.), "those which are substantially the same both in 
 equity and at the law" (e. g., partition of land, admeasurement of 
 dower, accounting, etc.), and "those which the legal procedure recog- 
 nizes, but does not directly confer, and the beneficial results of which 
 it obtains in an indirect manner," the remedy of rescission or can- 
 cellation is given as typical of this last class, and the distinction 
 pointed out between this equitable relief and the analogous legal 
 method, an action for the recovery of chattels, land or damages,
 
 S 5 EQUITABLE REMEDIES. 6 
 
 this group have one most important distinctive feature 
 in common, which is apparent upon even a slight exam- 
 ination. In all of them the estate or interest of the 
 complaining party, whether it be legal or equitable, is 
 directly established or recovered, or the enjoyment 
 thereof is directly restored. These remedies are not, 
 therefore, provisional or auxiliary, but they are, for the 
 purposes of the complaining party, as truly final or ulti- 
 mate reliefs as is the judgment in an action of eject- 
 ment or of replevin.*^ The estate, interest, or primary 
 right to be established or recovered, or fully enjoyed by 
 their means, may be either legal or equitable ; and when 
 it is equitable, the establishment may consist in cloth- 
 based on the assumption of a rescission by the act of a party to the 
 contract or conveyance; for further explanation and illustration of 
 this distinction, and observations on the frequent confusion as to the 
 requisites of legal and of equitable rescission, see post, chapter on 
 Cancellation. 
 
 5 4 Pom. Eq. Jur., § 1378. "This is manifestly so in 'assignment of 
 dower,' 'settlement of disputed boundaries,' and 'partition of land,' 
 since in each of these instances the plaintiff establishes his indi- 
 vidual right to and obtains sole possession of a specific tract of land, 
 and in 'partition of personal property,' he procures the same with re- 
 spect to specific chattels. The statement is no less true of the other 
 suits included within this group. In a suit to construe a will, es- 
 tates in specific property are directly established; in suits to quiet 
 title, the very object of the judgment is to declare and establish the 
 plaintiff's legal or equitable estate in some specific property, and 
 perhaps to convert his equitable estate into a legal one. Even in 
 suits to remove a cloud from title, although the relief is often ob- 
 tained by means of a cancellation, yet, from the nature of the whole 
 proceeding, the plaintiff's estate is thereby established, and he is 
 left in its full enjoyment. In strict foreclosures of mortgages or 
 pledges, and in redemptions of mortgages or pledges, the plaintiff 
 plainly establishes his estate in, and secures his possession of, the 
 specific land or chattels, free from any claim of the defendant. How- 
 ever much these remedies may differ in appearance, they all have 
 this same essential element which brings them within the sama 
 group": Pom. Eq. Jur., § 1378, note.
 
 7l INTRODUCTION. S 5 
 
 ing the plaintiff with the legal estate.® The remedies 
 composing this group are separated, by a natural line 
 of division, into three general classes, namely : 1. Suits 
 by which purely legal estates are established, and the 
 enjoyment thereof recovered; 2. Suits by which some 
 
 6 "As in some statutory suits to quiet title, and some suits to 
 remove a cloud from title": Pom. Eq. Jur., § 1378, and note. 
 
 This group corresponds, in the main, with classes "1. Declarative 
 Remedies,** and "2. Restorative Remedies," of Pom. Eq. Jur., § 112, 
 and with the "third class" of Pom. Eq. Jur., § 171 (which, however, 
 is made to embrace remedies of specific performance also) ; compare the 
 following description in § 171: "3. The third class embraces those 
 remedies by which a primary right of property, estate, or interest is 
 directly declared, established, acquired, or enforced; and they often 
 consist in the conveyance by defendant of a legal estate, corres- 
 ponding to the complainant's equitable title. These remedies deal 
 directly with the plaintiff's right of property, and grant to him the 
 final relief which he needs, by establishing and enforcing such right. 
 The particular remedies properly belonging to this class may as- 
 sume an almost unlimited variety of forms, since form depends 
 upon and corresponds to the nature of the primary right to be es- 
 tablished, and of the subject-matter over which that right extends; 
 it is chiefly in its relation with this class that the peculiarly elastic 
 quality of the equity remedial system is found. The remedies belong- 
 ing to this class may, for purposes of clearer description, be agaia 
 subdivided into three principal groups. Some are simply declarative^ 
 that is, their main and direct object is to declare, confirm, and es- 
 tablish the right, title, interest, or estate of the plaintiff, whether 
 legal or equitable; they are usually granted in combination with 
 others, and often need other kinds of relief as a preliminary step 
 to making them efiieient; as, for example, a preliminary reformation, 
 re-execution, or cancellation. Others are restorative, or those by 
 which the plaintiff is restored to the full enjoyment of the right, 
 interest, or estate to which he is entitled, but the use and enjoyment 
 of which has been hindered, interfered with, prevented, or withheld 
 by the wrong-doer. These also are often granted in combination with 
 other kinds of relief, and frequently need some other preliminary 
 equitable remedy, such as cancellation or reformation, to remove a 
 legal obstacle to the full enjoyment of the plaintiff's right, and to 
 render them efficient in restoring him to that enjoyment. Others are 
 remedies of specific performance," etc., enumerating examples of 
 remedies belonging to this class.
 
 II 6, 7 EQUITABLE REMEDIES. t 
 
 general right, either legal or equitable, is established; 
 and 3. Suits by which some particular estate or inter- 
 est, either legal or equitable, is established."' 
 
 § 6. Fourth Group: First Class — "Since the particular 
 cases belonging to this class are primarily adapted to 
 purely legal interests, the common law gives similar re- 
 lief by means of appropriate legal actions. The juris- 
 diction of equity was based wholly upon the superiority 
 of the equitable methods and procedure; and while the 
 equitable jurisdiction in cases of dower and partition 
 has become so established that it has almost displaced 
 the legal remedies, that of settling disputed boundaries 
 still requires the presence of some special equitable in- 
 cident or circumstance."* These remedies all belong to 
 the "concurrent jurisdiction," in the strict definition of 
 that term. 
 
 § 7. Fourth Group: Second Class — "In all the remedies 
 belonging to this class, some general right, which may 
 be either legal or equitable, is declared and established. 
 The class includes suits to establish a will, suits to con- 
 strue a will, and the bills of peace and bills quia timet 
 for the purpose of quieting title, which belong to the 
 original general jurisdiction of equity." "Some of the 
 
 7 Pom. Eq. Jur., § 1378. 
 
 8 Pom. Eq. Jur., § 1379. See, also, § 185, relating to the "ordi- 
 nary and well-settled instances" of the "concurrent" jurisdiction: 
 "1. Under the first of these classes, where the final relief is substan- 
 tially a recovery or obtaining possession of specific portions of land, 
 the concurrent jurisdiction is clearly established, and its exercise 
 is a matter of ordinary occurrence, in suits for the partition of land 
 among joint owners or owners in common; in suits for the assignment 
 or admeasurement of dower; and in suits for the adjustment of dis- 
 puted boundaries, where some equitable incident or feature is in- 
 volved, and the dispute is not wholly confined to an assertion of mere 
 conflicting legal titles or possessory rights."
 
 9 INTRODUCTION. 8§ 8,9 
 
 remedies of this class undoubtedly depend upon what 
 the early chancellors called the * jurisdiction quia timet/ 
 Since the conception of a quia timet jurisdiction is so 
 broad, and runs through so many different branches of 
 the remedial jurisprudence, I have not adopted it as a 
 basis of classification. The object of suits to establish 
 and to construe wills is plainly the establishment of a 
 general right ; and the same is no less true of those suits 
 to quiet title, bills of peace, and the like, which belong 
 to the original jurisdiction of equity."* 
 
 § 8. Fourth Group: Third Class — "In all the instances 
 of this class, as distinguished from those of the preced- 
 ing one, the direct object of the remedy is to declare and 
 establish some particular estate, interest, or right, 
 either legal or equitable, in the property which is the 
 subject-matter. The class as a whole embraces suits for 
 the strict foreclosure of a mortgage or a pledge, suits 
 for the redemption of a mortgage, suits for the redemp- 
 tion of a pledge, statutory suits to quiet title, and suits 
 to remove a cloud from title." "Some of these remedies, 
 also, have been said to depend upon the quia timet jur- 
 isdiction."^® 
 
 § 9. (5) Fifth Group: Remedies by Which Equitable Ob- 
 ligations are Specifically and Directly Enforced — "The reme- 
 dies embraced in this group are all purely equitable, 
 and the rights of the complainant and obligations of the 
 defendant which are enforced by their means are also 
 equitable. ^^ They belong, therefore, to the exclusive 
 
 » Pom. Eq. Jur., § 1393, and note. For suits to construe a will, 
 see 3 Pom. Eq. Jur., §§ 1155-1157; for suits to establish a will, see 
 3 Pom. Eq. Jur., § 1158. 
 
 10 Pom. Eq. Jur., § 1395, and note. 
 
 11 "Although contracts may also give rise to a legal right, yet 
 when equity compels their Bpecific performance, it enforces the
 
 § 9 EQUITABLE REMEDIES. 10 
 
 jurisdiction of equity. Their distinctive object is to 
 specifically enforce the complainant's equitable right, 
 and to compel the defendant to specifically perform the 
 actual equitable obligation which rests upon him. This 
 group, as a whole, contains the specific performance of 
 contracts, including the performance of verbal con- 
 tracts for the sale of land which have been part per- 
 formed, and the delivery up of specific chattels; the 
 specific enforcement of trusts, express and implied ; and 
 the specific enforcement of obligations arising from fidu- 
 ciary relations analogous to trusts," ^^ the last-named 
 class including the important sub-classes, "suits against 
 administrators or executors, and suits against corpora- 
 tions and their managing officers.'"^ The broad scope 
 of this class of remedies, perhaps the most characteristic 
 of the whole equity system, is thus described in another 
 place: "4. Remedies of Specific Performance, or those 
 by which the party violating his primary duty is com- 
 pelled to do the very acts which his duty and the plain- 
 tiff's primary right^^ require from him. The remedies 
 of this class are very numerous in their special forms 
 and in respect to the juridical relations in which they 
 are applicable. 'Specific performance' is often spoken 
 of as though it was confined to the case of executory 
 contracts; but in reality it is constantly employed in 
 
 equitable obligation arising from them, and not the legal duty. In 
 most cases, it turns the vendee's equitable estate into a legal one": 
 Pom. Eq. Jur., § 1400, note. 
 
 12 Pom. Eq. Jur., § 1400. As to suits for the delivery of specific 
 chattels, written instruments, etc. (an instance of the "concurrent" 
 jurisdiction), see 1 Pom. Eq. Jur., § 185. 
 
 13 Pom. Eq. Jur., § 1411. 
 
 14 For definitions of the terms "primary right" and "remedial 
 right," see 1 Pom. Eq. Jur., §§ 90, 91. Tho remedial right, or right 
 to a remedy, is that which arises on the breach of a "primary" or 
 (as it is perhaps more frequently and familiarly called) "substan- 
 tive" right.
 
 11 INTKODUCTION. f iO 
 
 the enforcement of rig^hts and duties arising from re- 
 lations between specific persons which do not result 
 from contracts, as, for example, between cestiiis que 
 trustcnt and their trustees, wards and their guardians, 
 legatees, distributees, or creditors and executors or ad- 
 ministrators, and the like. In these latter cases, how- 
 ever, as well as in that of the specific performance of an 
 executory contract at the suit of a vendor, the form and 
 nature of the final relief is often the same as that of ac- 
 counting, pecuniary compensation, or restoration."^' 
 
 § 10. (6) Sixth Group: Remedies in Which the Final Re- 
 lief is Pecuniary, but is Obtained by the Enforcement of a Lien 
 or Charge upon Some Specific Property or Fund. — "The title 
 of this group plainly indicates the nature and object of 
 the remedies composing it. They are all purely equi- 
 table, and therefore belong to the exclusive jurisdiction; 
 because, although the final relief is pecuniary, and so 
 resembles the ordinary relief at law, it is obtained 
 through preliminary proceedings, forming a part of 
 the judgment, which belong solely to the procedure and 
 jurisdiction of equity."^® This group is elsewhere de- 
 scribed as follows: "Those remedies which establish 
 and enforce liens and charges on property, rather than 
 rights and interests in property, either by means of a 
 judicial sale of the property itself which is affected by 
 the lien and a distribution of its proceeds, or by means 
 of a sequestration of the property, and an appropria- 
 tion of its rents, profits, and income, until they satisfy 
 the claim secured by the lien."^^ "Those cases in which 
 the relief is not a general pecuniary judgment, but is a 
 decree of money to be obtained and paid out of some 
 
 15 1 Pom. Eq. .Tur., § 112. 
 
 16 4 Pom. Eq. Jur., § 1413. 
 
 17 1 Pom. Eq. Jur., § 171.
 
 I 10 EQUITABLE REMEDIES. 12 
 
 particular fund or funds. The equitable remedies of 
 this species are many in number and various in their 
 external forms and incidents. They assume that the 
 creditor has, either by operation of law, or from con- 
 tract, or from some acts or omissions of the debtor, a 
 lien, charge, or encumbrance upon some fund or funds 
 belonging to the latter, either land, chattels, things in 
 action, or even money; and the form of the remedy re- 
 quires that this lien or charge should be established, 
 and then enforced, and the amount due obtained by a 
 sale total or partial of the fund, or by a sequestration 
 of its rents, profits, and proceeds. These preliminary 
 steps may, on a casual view, be misleading as to th© 
 nature of the remedy, and may cause it to appear to be 
 something more than compensatory; but a closer view 
 shows that all these steps are merely auxiliary, and that 
 the real remedy, the final object of the proceeding, is 
 
 the pecuniary recovery There is also another 
 
 species of pecuniary remedies, closely analogous to the 
 last, and differing from it only in the additional element 
 of a distribution of the final pecuniary awards among 
 two or more parties having claims either upon one 
 common fund or upon several funds. The final relief 
 in all these cases is simply pecuniary; the amounts to 
 which the different parties are entitled are ascertained, 
 and are obtained by a distribution of the fund or funds 
 upon which they are chargeable."^® "The group con- 
 tains the following species of remedies: Suits for the 
 foreclosure by judicial sale of mortgages of real prop- 
 erty; suits for the similar foreclosure of mortgages of 
 
 18 1 Pom. Eq. Jur., § 112. "Of this species are suits to wind up 
 partnerships and distribute partnership assets; to settle and distrib- 
 ute the personal estate of decedents; to marshal assets; and the 
 statutory proceeding to wind up the affairs of insolvent corpora- 
 tions": Id. Probably some of these last-named remedies are pre- 
 ferably classed in the next group.
 
 13 INTRODUCTION. i 11 
 
 personal property; suits for the similar foreclosure of 
 pledges; suits to enforce the various equitable liens; 
 suits to enforce the equitable contracts of married 
 women upon their separate property;^' suits to marshal 
 securities; and creditors' suits. "^** 
 
 § 11. (7) Seventh Group: Remedies in Which the Final 
 Relief is Wholly Pecuniary, and is Obtained in the Form of a 
 General Pecuniary Recovery — "The remedies composing 
 this group belong to the concurrent jurisdiction of 
 equity, since the final reliefs are the same in form and 
 substance as that granted under like circumstances by a 
 judgment at law, — a general pecuniary recovery, — and 
 since the primary rights and interests of the parties are 
 generally recognized and protected by the law."^* 
 "This group contains the following particular suits: 
 By assignees of things in action, equitable assignees of 
 a fund, etc. ; by persons entitled to participate in a com- 
 mon fund; for contribution in general; suits growing 
 out of suretyship, for exoneration, contribution, or sub- 
 rogation ; suits growing out of partnership ; suits for an 
 accounting in general; recovery of damages, etc."^^ 
 Elsewhere, the following are enumerated as the most im- 
 
 l» "Although the late English cases hold that these contracts of 
 married women do not create any lien, yet the whole remedy in form 
 and substance is exactly the same as though there teas a lien, and as 
 though its object was to enforce that lien. Furthermore, the Ameri- 
 can courts generally hold that a lien is created": Pom. Eq. Jur., S 
 1413, note. 
 
 20 Pom. Eq. Jur., § 1413. ** 'Creditors' suits' belong to this group, 
 because they are based upon the conception that an equitable lien is 
 created upon the judgment debtor's property by means of the judg- 
 ment and execution returned unsatisfied; and this lien is in reality 
 enforced, although the enforcement may, perhaps, require the an- 
 cillary remedies of cancellation, a receiver, etc": Pom. Eq. Jur., 
 § 1413, note. 
 
 21 Pom. Eq. Jur., § 1416. 
 
 22 Pom. Eq. Jur., § 1316, note.
 
 § 11 EQUITABLE REMEDIES. 14 
 
 portant and frequent instances of the "concurrent" jur- 
 isdiction, when the relief is pecuniary r^ Suits grow- 
 ing out of the contract of suretyship ; suits growing out 
 of the contract of partnership ; contribution, in general ; 
 accounting, especially as between principal and agent, 
 and other persons standing in fiduciary relations to each 
 other; "the ascertaining and adjustment of the respec- 
 tive amounts of persons entitled to participate in the 
 same fund, and of the respective shares of persons sub- 
 jected to some common liability; the ascertaining and 
 adjustment of the shares of persons liable to contribute 
 to a general average; the ascertaining and adjustment 
 of the shares of persons liable to contribute with respect 
 to charges of any kind upon land or other property; 
 the appropriation of payments; the apportionment of 
 rents; and numerous other instances where a number 
 of persons are differently interested in the same sub- 
 ject-matter, or are differently liable with respect to 
 some common object." Other important instances are 
 suits for the recovery of legacies and of gifts causa 
 mortis, and other suits connected with the administra- 
 tion of the estates of decedents; pecuniary relief occa- 
 sioned by or growing out of fraud, mistake, or accident 
 (rarely an independent ground of jurisdiction in this 
 country); the recovery of damages by way of compen- 
 sation in addition to or (occasionally) in place of other 
 equitable relief; and certain suits — as, to compel a set- 
 off — depending on imperfections of the legal proce- 
 dure.^* 
 
 23 Pom. Eq. Jur., §§ 186-189. 
 
 24 See 1 Pom. Eq. Jur., § 189. Suits for specific performance 
 brought by the vendor, where the recovery is pecuniary, seem, in 
 strict logic, to belong in this group: See 1 Pom. Eq. Jur., § 112, 
 note 1.
 
 15 INTEODUCTION. § LI 
 
 II. 
 
 § 12. Equitable Remedies Acted in Personam. — "In the 
 infancy of the court of chancery while the chancellors 
 were developing their system in the face of a strong op- 
 position, in order to avoid a direct collision with the 
 law and with the judgments of law courts, they adopted 
 the principle that their own remedies and decrees should 
 operate in personam upon defendants, and not in rem. 
 The meaning of this simply is, that a decree of a court 
 of equity, while declaring the equitable estate, interest, 
 or right of the plaintiff to exist, did not operate by its 
 own intrinsic force to vest the plaintiff with the legal 
 estate, interest or right to which he was pronounced 
 entitled ; it was not itself a legal title, nor could it either 
 directly or indirectly transfer the title from the defend- 
 ant to the plaintiff. A decree of chancery spoke in 
 terms of personal command to the defendant, but its 
 directions could only be carried into effect by his per- 
 sonal act It declared, for example, that the plaintiff' 
 was equitable owner of certain land, the legal title of 
 which was held by the defendant, and ordered the de- 
 fendant to execute a conveyance of the estate; his own 
 voluntary act was necessary to carry the decree into 
 execution; if he refused to convey, the court could en- 
 deavor to compel his obedience by fine and imprison- 
 ment. The decree never stood as a title in the place of 
 an actual conveyance by the defendant; nor was it ever 
 carried into effect by any officer acting in the defend- 
 ant's name."^^ Thus, on a bill for the removal of a 
 
 25 1 Pom. Eq. Jur., § 428. See, also, Id., §§ 134, 135, 170. 1317; 
 Penn v. Lord Baltimore, 1 Ves. Sr. 444, 2 Lead. Cas. Eq., 4th Am. e<[., 
 1806, and notes; Proctor v. Ferebee, 1 Ired. Eq. (36 N. C.) 143, 36 
 Am. Dec. 34, and note. Pom. Eq. Jur., § 1317, is cited, as to the 
 effect of decrees, in Powell v. Campbell, 20 Nev. 232, 19 Am. St. 
 Eep. 350, 20 Pac. 156, 2 L. K. A. 615.
 
 I 13 EQUITABLE REMEDIES. 16 
 
 cloud upon title, the decree operated in personam only, 
 by restraining the defendant from asserting his claim, 
 and directing him to deliver up his deed to be canceled, 
 or to execute a release to the plaintiff.^^ When the 
 chancellor directed the sale of property, "it was by his 
 control over the person of the owner that he made the 
 sale effective, i. e., when the sale had been made he com- 
 pelled the owner to execute a deed, pursuant to the sale ; 
 and hence when the owner was out of the jurisdiction 
 the chancellor was powerless. "^'^ And a decree in parti- 
 tion "did not transfer or convey title even after the 
 allotment of the respective shares of each of the parties 
 to the proceeding, but the legal title remained as it was 
 
 before This dififlculty was remedied by a decree 
 
 that the parties should make the necessary conveyances 
 to each other, which, if they refused, they could be com- 
 pelled to do by attachment, imprisonment and other 
 powers of the court over them in person."^^ 
 
 § 13. Same — Modem Legfislation — Decree may Transfer 
 Title. — ''This original doctrine has been abrogated, for 
 all classes of remedies to which it could apply, by statu- 
 tory legislation in a large number of the states. This 
 legislation may be reduced to two general types: 
 (1) That by which the decree itself without any act of 
 the defendant or of an officer on his behalf becomes a 
 
 26 Hart V. Sansom, 110 U. S. 151, 3 Sup. Ct. 586, 28 L. ed. 101 (cit- 
 ing Langdell Eq. PI. (2d ed.), §§ 43, 184; Massie v. Watts, 6 Cranch, 
 148, 3 L. ed. 181; Orton v. Smith, 18 How. 263, 15 L. ed. 263; Van- 
 dever v. Freeman, 20 Tex. 334, 70 Am. Dec. 391). 
 
 27 McCann v. Eandall, 147 Mass. 81, 99, 9 Am. St. Eep. 666, 17 
 N. E. 75, 88 (citing Langdell's Eq. PI. (2d ed.), § 43, note 4; 
 Pom. Eq. Jur., § 1317; Hart v. Sansom, supra). 
 
 28 Gay V. Parpart, 106 U. S. 679, 690, 1 Sup. Ct. 456, 465, 27 L. 
 ed. 256, per Miller, J. (quoting from Waley v. Dawson, 2 Schoales & 
 L. 366, per Lord Redesdale; Mitford's Eq. PI. (Jeremy's ed.), 120; 
 Adams' Eq. 231).
 
 17 INTRODUCTION. I 13 
 
 title, and vests a legal estate in the subject-matter in 
 the plaintiff; (2) That by which a commissioner, mas- 
 ter, or other officer of the court executes the decree, 
 and through his conveyance or other official act trans- 
 fers the legal estate from the defendant to the plaintiff, 
 or other^dse vests the plaintiff with title. Both these 
 types are often found in the statutes of the same state. 
 In all cases where an instrument is directed to be exe- 
 cuted by an officer, the statutes provide that it shall 
 have exactly the same effect as if executed by the party 
 himself. "2* "In some statutes of the first type the lan- 
 
 29 Pom. Eq. Jur., § 1317. As illustrations of the first type of 
 statute, where the decree itself operates as a title, see King v. Bill, 
 28 Conn. 593; Hoffman v. Stigers, 28 Iowa, 302 (partition); Young 
 V. Frost, 1 Md. 377, 403 (partition); Gitt v. Watson, 18 Mo. 274; 
 Sensenderfer v. Kemp, 83 Mo. 581 (decree divesting title of con- 
 structive trustee, a purchaser with notice of equitable title) ; Bohart 
 V. Chamberlain, 99 Mo. 622, 13 S. W, 85 (re-execution of a lost in- 
 Btrument; instead of ordering its re-execution court may make a 
 declaratory decree, establishing the existence of the deed in question; 
 citing Pom. Eq. Jur., §§ 171, 429, 827; Garrett v. Lynch, 45 Ala. 204); 
 Macklin v. Allenberg, 100 Mo. 337, 13 S. W. 350 (setting aside deed 
 as fraud on creditors); Price v. Sisson, 13 N. J. Eq. 168 (reformation 
 of deed); Skinner v. Terry, 134 N. C. 305, 46 S. E. 517; Taylor v. 
 Boyd, 3 Ohio, 337, 17 Am. Dec. 603; Jelke v. Goldsmith, 52 Ohio St. 
 499, 49 Am. St. Rep. 730, 40 N. E. 167 (statute of Ohio does not 
 apply to decrees concerning personal property); Griffiths v. Phillips, 
 3 Grant Cas. (Pa.) 381 (partition). 
 
 It has been held that "the rights of the parties in case of a var- 
 iance between the terms of the decree and of the conveyance, must 
 depend upon the former rather than upon the latter": Price v. 
 Sisson, 13 N. J. Eq. 168, 172, supra; and that "the terms of the 
 decree must be construed precisely as the conveyance itself would be 
 if executed within the time appointed for its execution": Id.; Hoff- 
 man v. Stigers, 28 Iowa, 302, supra. 
 
 "Whenever the decree itself thus operates to transfer title, a re- 
 versal of the decree upon appeal necessarily destroys this effect 
 as hetween the parties themselves, divests the title from the party to 
 whom it had been transferred, and revests it in the party from whom 
 it had passed. But if the decree had been executed bj means of a 
 Equitable Remedies, Vol. I — 2
 
 § 13 EQUITABLE REMEDIES. 18 
 
 guage is positive and peremptory, that the decree shall 
 operate to transfer the title, etc. ; in others it is per- 
 missive, — the court may provide in the decree that it 
 shall operate to transfer the title in case the defendant 
 neglects or refuses to obey its mandates. Similar varia- 
 tions are found in the statutes of the second type. "*'* 
 
 conveyance, and the title had thus passed to a bona fide purchaser, 
 before the appeal, a reversal may not divest him of the title or 
 compel him to reconvey: See Stats, of Delaware; Taylor v. Boyd, 3 
 Ohio, 337, 17 Am. Dec. 603"; Pom. Eq. Jur., § 13lV, note; see, also, 
 McCormick v. McClure, 6 Blackf. (Ind.) 466, 39 Am. Dec. 441; 
 Macklin v. Allenberg, 100 Mo. 337, 13 S. W. 350 (bona fide purchaser 
 not affected by reversal on a writ of error, that being in effect a 
 new suit). The question in such cases is largely one of the contin- 
 uance of the Us pendens of the original suit: See 2 Pom. Eq. Jur. 
 (3d ed.), § 634, and notes. 
 
 As to the time when title passes under these statutes, there is 
 For'e dispute. Compare Shotwell v. Lawson, 30 Miss. 27, 64 Am. Dec. 
 145 (deed executed by commissioner under decree vacating title to 
 real estate relates back to commencement of suit, as against defendant 
 in such suit and those subsequently claiming title under him), with 
 King V. Bill, 28 Conn. 593 (third person to whom defendant con- 
 veyed after filing of the bill but before decree not divested of his 
 title by the decree). 
 
 30 Pom. Eq. Jur., § 1317, note 2. The following are the most im- 
 portant of these statutes: 
 
 Alabama. — Civ. Code, 1896, § 849: "When a decree is made for a 
 conveyance, release, or acqijittance, and the party against whom the 
 decree is made does not execute the same by the time specified in 
 the decree, such decree operates in all respects as fully as if the 
 conveyance, release or acquittance was made; or the court may de- 
 cree, in default of the execution of such conveyance, release or ac- 
 quittance, the same to be executed by the register or a commis- 
 sioner in the name of the party; and the conveyance, release or ac- 
 quittance, when so executed, is as valid in all respects as if executed 
 by the party; or the court may directly divest title out of one party 
 and vest it in another." 
 
 Arizona.— Eev. Stats. 1901, § 1430: "When the judgment is for 
 the conveyance of real estate, or for the delivery of personal prop- 
 erty, the decree may pass the title to such property without any aet 
 to be done on the part of the party agaiust whom the judgment is 
 rendered."
 
 19 INTRODUCTION, § 13 
 
 Arkansas.— Sandel & Hill's Dig. of Stat., § 4241: "In all cases 
 where the court may decree the conveyance of real estate, or the 
 delivery of personal property, they may, by decree, pass the title 
 of such property without any act to be done on the part of the de- 
 fendant, where it shall be proper, and may issue a writ of possession 
 if necessary, to put the party in possession of such real or personal 
 property, or may proceed by attachment or sequestration." 
 
 § 4242: "When an unconditional decree shall be made for a con- 
 veyance, release or acquittance, and the party required to execute 
 the same shall not comply therewith, the decree shall be considered 
 and taken to have the same operation and effect, and be as available 
 as if the conveyance, release or acquittance had been executed con- 
 formably to the decree." 
 
 Connecticut. — Gen. Stats. 1902, § 555: "Courts of equitable juris- 
 diction may pass the title to real estate by decree, without any act 
 on the part of the defendant, when, in their judgment, it shall be 
 the proper mode to carry the decree into effect; and such decree, 
 having been recorded in the records of lands in the town where such, 
 real estate is situated, shall, while in force, be as effectual to transfer 
 the same as the deed of the defendant." 
 
 Delaware, — Eev. Stats., c. 95, § 12: "All real estate, within this 
 state, shall be liable to be sold, by order of the chancellor, on such 
 terms and in such manner as he shall direct, by the sheriff, or by any 
 party to a suit in chancery, when such sale shall be necessary to 
 give effect to, and carry into execution a decree of the court of 
 chancery. And when any such real estate shall be so sold, and there 
 shall be a surplus of money, arising from the sale, above what is 
 sufficient for the purposes of the sale, such surplus shall be paid over, 
 or applied as the chancellor shall order. Such sales shall be as 
 available in law to the vendees as sales of land seized and sold upon 
 judgment and execution are by virtue of any law of this state; 
 provided, that if any such decree, under which any real estate shall 
 be so sold, shall be reversed by the court of errors and appeals, 
 none of the real estate, so sold, shall be restored, nor shall the sale 
 thereof be avoided, but restitution shall be made, in such cases, of 
 the money for which such real estate was sold; and provided also, 
 that no sale shall be valid until return thereof shall be made to the 
 court of chancery, and it shall be approved and confirmed by the 
 chancellor." 
 
 Florida. — Rev. Stats. 1892, § 1451: "Where a decree in chancery 
 shall be made for a conveyance, release or acquittance of land, or any 
 interest therein, and the party against whom the said decree shall 
 pass shall not comply therewith by the time appointed, then suck 
 decree shall be considered and taken in all courts of law and equity
 
 5 13 EQUITABLE REMEDIES. 20 
 
 to have the same operation and effect and to be as available as if 
 the conveyance and release or acquittance had been executed con- 
 formably to such decree, and this, notwithstanding any disability 
 of such parties by infancy, lunacy, coverture or otherwise." 
 
 Georgia. — Code 1895, § 4852: "A decree for specific performance 
 shall operate as a deed to convey land or other property without any 
 conveyance being executed by the vendor. Such decree certified by 
 the clerk shall be recorded in the registry of deeds in the county 
 where the land lies, and shall stand in the place of a deed," 
 
 lUinols.— Hurd 's Rev. Stats. 1899, p. 225, § 46: "Whenever a decree 
 shall be made in a suit in equity, "directing the execution of any 
 deed or other writing, it shall be lawful for the court to appoint a 
 commissioner, or direct the master in chancery to execute the same, 
 in case the parties under no disability fail to execute the same, in 
 a time to be named in the decree, or on behalf of minors or persons 
 having conservators." Such conveyance shall have the same ef- 
 fect "as if executed by the right party in proper person, and he 
 or she were under no disability." 
 
 Indiana. — Burns' Ann. Stats. 1901, § 1027: "Real property may be 
 conveyed by a commissioner appointed by the court: 
 
 "First, where, by the judgment in an action, a party is ordered 
 to convey real property to another or any interest therein." 
 
 Iowa. — Code 1897, S 3805: Same as Indiana, but omitting "or any 
 interest therein." 
 
 Kansas.— Rev. Stats. 1901, § 4849; Code, § 400: Similar to Alabama, 
 except that conveyance may be executed by the sheriff instead of 
 by a register or commissioner, and that the provision that the court 
 may directly divest title is omitted. 
 
 Kentucky.— Codes 1900, § 394: Same as Iowa. 
 
 Maine. — Rev. Stats. 1903, p. 873, c. 114, § 10: In certain actions 
 for specific performance of contracts to convey land, "if the defend- 
 ant neglects or refuses to convey according to the decree, the court 
 may render judgment for the plaintiff for possession of the land, 
 to hold according to the terms of the intended conveyance, and 
 may issue a writ of seizin as in a real action, under which the 
 plaintiff, having obtained possession, shall hold the premises as ef- 
 fectually as if conveyed in pursuance of the decree; or the court 
 inay enforce its decree by any other process according to chancery 
 proceedings. *' 
 
 Maryland. — Pub. Gen. Laws, § 91: "In all cases where the court 
 shall decree that a deed of any kind shall be executed, a trustee to 
 execute such deed may be appointed, and until such trustee shall 
 execute a deed, the decree itself, if passed in the county where the
 
 21 INTRODUCTION. I 13 
 
 land lies, shall have the same effect that the deed would if executed; 
 liut if passed in another county, the decree shall have that effect 
 if recorded in the county where the land lies within six months from 
 the date thereof." 
 
 Michigan. — Howell's Ann. Stats., § 6650: "And if such decree shall 
 direct the execution of a conveyance or other instrument affecting 
 the title to real estate, the record of such certified copy shall have 
 the same effect as the record of such conveyance or other instrument 
 affecting the title to real estate would have if duly executed pursu- 
 ant to said decree." 
 
 Minnesota.— Gen. Stats. 1894, c. 75, § 14: "The district court has 
 power to pass the title to real estate by a judgment, without any 
 ether act to be done on the part of the defendant, when such ap- 
 pears to be the proper mode to carry its judgments into effect; and 
 such judgment, being recorded in the registry of deeds of the county 
 where such real estate is situated, shall, while in force, be as ef- 
 fectual to transfer the same as the deed of the defendant." 
 
 Mississippi. — Annotated Code 1892, § 594: "The decree of a court 
 of chancery shall have the force, operation and effect of a judg- 
 ment at law in the circuit court." 
 
 § 595: "When a decree shall be made for a conveyance, release, 
 or acquittance, or other writing, and the party against whom the 
 decree is made shall not comply therewith, then such decree shall 
 be considered and taken in all courts of law and equity to have the 
 same operation and effect, and shall be as available, as if the con- 
 veyance, release, or acquittance, or other writing had been executed 
 in conformity to the decree; or the court may appoint a commis- 
 sioner to execute such writing, which shall have the same effect aa 
 if executed by the party." 
 
 Missouri. — Rev. Stats. 1889, § 6041: "In all cases where any court 
 of record shall judge or decree a conveyance of real estate, or that 
 any real estate shall pass, the party in whose favor the judgment 
 or decree is rendered shall cause a copy thereof to be recorded in 
 the office of the recorder of the county wherein the lands passed or 
 to be conveyed lie, within eight months after such judgment or de- 
 cree is entered." 
 
 Nebraska.— Cobbey 's Statutes 1903, § 1416: "That when any 
 judgment or decree shall be rendered for a conveyance, release, or 
 acquittance, in any court of this state, and the party or parties 
 against whom the judgment or decree shaU be rendered do not com- 
 ply therewith within the time mentioned in said judgment or de- 
 tree, such judgment or decree shall have the same operation and 
 effect, and be as available as if the conveyance, release, or acquit- 
 tance had been executed conformable to such judgment or decree."
 
 § 13 EQUITABLE REMEDIES. 2* 
 
 § 1441; "Real property may be conveyed by master commissioners 
 as hereinafter provided: First. When by an order or judgment in an 
 action or proceeding, a party is ordered to convey such property to 
 another, and he shall neglect or refuse to comply with such order or 
 judgment. Second. "When specific real property is required to be 
 sold under an order or judgment of the court." 
 
 New Jersey. — Gen. Stats. 1895, p. 383: "That where a decree of 
 the court of chancery shall be made for a conveyance, release, or 
 acquittance of lands or any interest therein, and the party against 
 whom the said decree shall pass shall not comply therewith by the 
 time appointed, then such decree shall be considered and taken, in 
 al] courts of law and equity, to have the same operation and effect, 
 and be as available as if the conveyance, release, or acquittance had 
 been executed conformably to such decree^ and this, notwithstanding 
 any disability of such party by infancy, lunacy, coverture, or other- 
 wise. ' ' 
 
 New York.— Code Civ. Proc. 1896, § 718: "Where a judgment di- 
 rects a party to ... . convey real property; if the direction is dis- 
 obeyed, the courts, besides punishing the disobedience as a contempt, 
 may, by order, require the sheriff .... to convey the real property, 
 in conformity with the direction of the court." 
 
 North Carolina. — Clark's Code of Civ. Proc, § 426: "In any ac- 
 tion, wherein the court shall declare that a party is entitled to the 
 possession of property, real or personal, the legal title whereof may 
 be in another or others, parties to the suit, and the court shall order 
 a conveyance of euch legal title to him so declared to be entitled, or 
 where, for any cause, the court shall order that one of the parties 
 holding property in trust shall convey the legal title therein to be 
 held in trust to another person, although not a party, the court, 
 after declaring the right and ordering the conveyance, shall have 
 power, also, to be used in its discretion, to declare in the order then 
 made, or in any made in the progress of the cause, that the effect 
 thereof shall be to transfer to the party to whom the conveyance is 
 directed to be made the legal title of the said property, to be held 
 in the same plight, condition and estate as though the conveyance 
 ordered was in fact executed." 
 
 § 427: "Every judgment, in which the transfer of title shall be 
 eo declared, shall be regarded as a deed of conveyance, executed in 
 due form and by capable persons, notwithstanding the want of ca- 
 pacity in any person ordered to convey." 
 
 North Dakota. — Pievised Code 1899, § 5486: "In aU actions arising 
 under chapter 30 of this code and in actions commenced for th© 
 satisfaction of record of mortgages or other liens upon real property 
 or for the specific performance of contracts relating to real property.
 
 23 INTRODUCTION. 9 13 
 
 the court may "by its judgment without any act on the part of tho 
 defendant transfer the title to real property and remove or discharge 
 a cloud or encumbrance thereon, and a certified copy of such judg- 
 ment may be recorded in the office of the register of deeds of the 
 county in which the property affected is situated." 
 
 Ohio. — Bates' Ann. Code, 4th ed., § 5318: "When the party against 
 whom a judgment for a conveyance, release, or acquittance is ren- 
 dered, does not comply therewith by the time appointed, such judg- 
 ment shall have the same operation and effect, and be as available, 
 as if the conveyance, release, or acquittance had been executed cou- 
 iormabiy to such juelyment." 
 
 Oklahoma.— Eev. Stats. 1903, § 4589: Similar to Kansas. 
 
 Oregon. — Bellinger & Cotton's Codes and Stats., § 415: "A decree 
 requiring a party to make a conveyance, transfer, release, acquit- 
 tance, or other like act within a period therein specified shall, if such 
 party do not comply therewith, be deemed and taken to be equiva- 
 lent thereto." 
 
 Tennessee. — Code, 1896: "The decree may divest the title to prop- 
 erty, real or personal, out of any of the parties, and vest it in others, 
 and such decree shall have all the force and effect of a conveyance 
 by such parties, executed in due form of law." 
 
 Texas. — Sayles' Stats., art. 1338: "Where the judgment is for the 
 conveyance of real estate, or for the delivery of personal property, 
 the decree may pass title to such property without any act to be 
 done on the part of the party against whom the judgment is ren- 
 dered." 
 
 Utah.— Eev. Stats. 1898, § 3279: "When the judgment requires the 
 person against whom it is rendered to execute and deliver to any 
 other person a conveyance of any specific real property, and the 
 person against whom it is rendered shall refuse or neglect to execute 
 and deliver said conveyance for five days after the service upon him 
 of a certified copy of such judgment, or if he is absent or concealed, 
 60 that service of such certified copy cannot be had, upon proof 
 satisfactory to the court that such service has been made, or that it 
 cannot be made by reason of such absence or concealment, the person 
 entitled to the conveyance may obtain from the court an order that 
 the certified copy of the judgment, together with the order, be re- 
 corded by the recorder of deeds of the county where the real prop- 
 erty is situated; and when recorded, it shall give to the person en- 
 titled to such conveyance a right to the possession of the real prop- 
 erty described in the judgment, and to hold the same according to 
 the terms of the conveyance ordered, in like manner as if it had been 
 conveyed in pursuance of the judgment. The recording of any Judg-
 
 { 14 EQUITABLE REMEDIES. 24 
 
 § 14. Same — Limitations on Effect of this Legislation. — • 
 "These statutes do not generally interfere with the 
 original power of courts of equity to enforce obedience 
 to their decrees by the parties themselves, and to punish 
 such parties for their disobedience by attachment, fine, 
 imprisonment, or sequestration.^^ The operation of 
 
 ment as above provided shall not prevent the court rendering the 
 judgment from enforcing the same by any proper process, according 
 to the course of proceedings therein." 
 
 Vermont. — Stats. 1894, § 980: "When a decree is made by a court 
 of chancery for a conveyance, release, or acquittance, and the party 
 against whom the decree is made does not comply therewith by the 
 time appointed, the decree shall be held to have the same effect as 
 if the conveyance, release, or acquittance had been executed agree- 
 ably to such decree. But such decree shall not be deemed a convey- 
 ance of real estate, unless a copy of the same, certified by the clerk 
 of the court, is recorded in the office in which a deed of such real 
 estate is required by law to be recorded." 
 
 Virginia. — Pollard's Ann. Code 1904, § 3418: "A court of equity, 
 in a suit wherein it is proper to decree or order the execution of any 
 deed or writing, may appoint a commissioner to execute the same; 
 and the execution thereof shall be as valid to pass, release, or extin- 
 guish the right, title, and interest of the party on whose behalf it 
 is executed, as if such party had been at the time capable in law of 
 executing the same, and had executed it." 
 
 West Virginia. — Code 1899, c. 132: "A court of law or equity, in a 
 suit in which it is proper to decree or order the execution of any 
 deed or writing, may appoint a commissioner to execute the same; 
 and the execution thereof shall be as valid to pass, release or ex- 
 tinguish the right, title, and interest of the party on whose behalf 
 it is executed, as if such party had been at the time capable in law 
 of executing the same and had executed it." 
 
 Wisconsin. — Stats. 1898, § 2236: "All judgments, decrees and 
 orders rendered or made by any court in eases where the title to 
 land shall have been in controversy may be recorded in the office 
 of the register of deeds of every county where any part of the landa 
 are situate, in the same manner and with like effect as conveyances. 
 Such recording may be done from a duly certified copy thereof." 
 
 Wyoming.— Rev. Stats, 1899, § 3759: Same as Ohio. 
 
 81 Pom, Eq, Jur., § 1317; so held in Randall v. Pryor, 4 Ohio, 424; 
 Penn v. Hayward, 14 Ohio St. 302. It seems, however, that under
 
 25 INTRODUCTION. S 14 
 
 these statutes is confined to the territorial limits and 
 jurisdiction of the states in which they are respectively 
 enacted."^^ It is impossible for a decree of a court of 
 one state to directly affect property in another. No 
 state has power to interfere with the sovereign rights 
 of a sister state. This legislation, it has been said, ''does 
 not extend to decrees of the United States courts. The 
 effect of equitable remedies granted and decrees ren- 
 dered by the United States courts, in the absence of 
 legislation by Congress, is governed by the original doc- 
 trine of equity; their decrees do not transfer title; they 
 must be executed by the parties, and obedience is com- 
 pelled by proceedings in the nature of punishment for 
 contempt, attachment, or sequestration.^^ There are, 
 
 the statutes of Georgia relating to execution for enforcement of pe- 
 cuniary judgments, a decree for the payment of money cannot be 
 enforced by attachment of the person: Clement v. TuUman, 79 Ga. 
 451, 11 Am. St. Eep. 441, 5 S. E. 194. 
 
 32 Pom. Eq. Jur., § 1317. See, also, Watkins v. Holman, 16 Pet. 
 25, 10 L. ed. 873 ("neither the decree itself, nor any conveyance 
 under it, can operate beyond the jurisdiction of the court"); Cor- 
 bett V. Nutt, 10 Wall. 464, 19 L, ed. 976; Carpenter v. Strange, 141 
 U. S. 87, 106, 11 Sup. Ct. 960, 35 L. ed. 640; Dull v. Blackman, 169 
 U. S. 243, 18 Sup. Ct. 333, 42 L. ed. 733; Guarantee Trust etc. Co. v. 
 Delta etc. Co., 104 Fed. 5, and cases cited; Lindley v. O'Eeilly, 50 
 N. J. L. 636, 15 Atl. 379; Bullock v. Bullock, 52 N. J. Eq. 561, 46 Am. 
 St. Rep. 528, 27 L. R. A. 213, 30 Atl. 676. 
 
 33 Pom. Eq. Jur., § 1317. See, also, Shepherd v. Commissioners of 
 Ross Co., 7 Ohio, 271. 
 
 But Professor Pomeroy's statement, above quoted, does not ac- 
 curately describe the present practice of the United States courts. 
 The act of Congress (March 3, 1875; 18 Stats. 470; Rev. Stats., § 
 738) providing for "substituted" service upon absent defendants in 
 suits to enforce any legal or equitable lien upon, or claim to, or to 
 remove any encumbrance or lien or cloud upon the title to real or 
 personal property within the district where the suit is brought, 
 would, it is pointed out, be idle legislation unless the court possessed 
 the power, in this class of cases, to transfer title by means of its 
 decree, without the agency of the defendant: See Deck v. Whitman, 
 «6 Fed. 873, 890, and cases cited; Single v. Scott Paper Mfg. Co., 5.3 
 Fed. 553. See, also, authorities mentioned in the next section fol
 
 § 15 EQUITABLE REMEDIES. 26 
 
 of course, classes of remedies to which this legislation 
 cannot apply — as, for example, decrees prohibiting any 
 act, general pecuniary recoveries, analogous to money 
 judgments at law, and many purely ancillary or pro- 
 visional reliefs. "^^ 
 
 § 15. Validity of Decree Based upon Service by PuMica- 
 tion. — Equity decrees ordinarily act only in personam, 
 and can therefore, in general, have effect only as against 
 parties duly served with process within the territorial 
 jurisdiction of the court.^^ It is competent, however, 
 for a state to provide methods for the determination of 
 title to land within its borders, and in the exercise of 
 such power, it may give to equity decrees relating to 
 or affecting the title to land, the effect of judgments 
 in rem, which, therefore, may be based upon service of 
 process by publication. "It is true that, in a strict 
 sense, a proceeding in rem is one taken directly against 
 property, and has for its object the disposition of the 
 
 lowing. But apart from the efifect of this act of Congress, the weight 
 of recent authority appears to be in favor of the view that the state 
 legislation in question does not deal merely with a matter of pro- 
 cedure, but establishes a substantive right, and that it is therefore 
 within the power, if it is not the duty, of a United States court to 
 conform to the same, in an appropriate case: Single v. Scott Paper 
 Mfg. Co., 55 Fed. 553; Deck v. Whitman, 96 Fed. 873, 891; Langdon 
 V. Sherwood, 124 U. S. 74, 8 Sup. Ct. 429, 31 L. ed. 344. In the last 
 case Mr. Justice Miller remarks, in speaking of this legislation: 
 "The validity of these statutes has never been questioned, so far 
 as we know, though long in existence in nearly all the states of the 
 Union. There can be no doubt of their efficacy in transferring the 
 title, in the courts of the states which have enacted them; nor do 
 we see any reason why the courts of the United States may not use 
 this mode of effecting that which is clearly within their power." 
 
 34 Pom. Eq. Jur., § 1317. See, also, Merrill v. Beckwith, 163 
 Mass. 503, 10 N. E. 855; Adams v. Heckscher, 80 Fed. 742, 83 Fed. 
 281. These are cases in which there was no personal service of sum- 
 mons. 
 
 35 Hart v. Sansom, 110 U. S. 151, 3 Sup. Ct. 586, 28 L. ed. 101,. 
 Ames' Cas. in Eq. Jur., 11.
 
 27 INTRODUCTION. I 13 
 
 property, without reference to the title of individual 
 claimants; but, in a larger and more general sense, the 
 terms are applied to actions between parties, where the 
 direct object is to reach and dispose of property owned 
 by them, or of some interest therein. Such are cases 
 commenced by attachment against the property of 
 debtors, or instituted to partition real estate, foreclose 
 a mortgage, or enforce a lien. So far as they affect 
 property in the state, they are substantially proceed- 
 ings in rem, in the broader sense which we have men- 
 tioned."^^ Statutes in many of the states make an 
 equity decree the equivalent of a conveyance. As a re- 
 sult of statute, it is held in many states that a decree 
 removing a cloud from or quieting title to land within 
 the jurisdiction may be based upon publication of sum- 
 mons.^^ Likewise, a decree for specific performance, 
 
 36 Pennoyer v, Neff, 95 U. S. 714, 24 L. ed, 565, per Field, J. 
 
 37 "If a state has no power to bring a nonresident into its courts 
 for any purposes by publication, it is impotent to perfect the titles 
 of real estate within its limits held by its own citizens; and a cloud 
 cast upon such title by a claim of a nonresident will remain for all 
 time a cloud, unless such nonresident shall voluntarily come into its 
 courts for the purpose of having it adjudicated. But no such im- 
 perfections attend the sovereignty of the state. It has control over 
 property within its limits; and the condition of ownership of real 
 estate therein, whether the owner be stranger or citizen, is subjection 
 to its rules concerning the holding, the transfer, liability to obliga- 
 tions, private or public, and the modes of establishing titles thereto. 
 It cannot bring the person of a nonresident within its limits — its 
 process goes not out beyond its borders — but it may determine the 
 extent of his title to real estate within its limits; and, for the pur- 
 pose of such determination, may provide any reasonable methods of 
 imparting notice": Arndt v. Griggs, 134 U. S. 316, 10 Sup. Ct. 557, 
 33 L. ed. 918, per Brewer, J, See, also, Bryan v. Kennett, 113 U. S. 
 179, 5 Sup. Ct. 407, 28 L. ed. 908; Ormsby v. Ottman, 85 Fed. 492, 
 29 C. C. A. 295; Morrison v. Marker, 93 Fed. 692; Perkins v. Wake- 
 ham, 86 Cal. 580, 21 Am. St. Rep, 67, 25 Pac. 51; Knudson v. Litch- 
 field, 87 Iowa, 111, 54 N. W. 199; Dillon v. Heller, 39 Kan. 599, 18 
 Pac. 693; Oldham v. Stephens, 45 Kan. 369, 25 Pac. 863; Short v. 
 Caldwell, 155 Mass. 57, 28 N. E. 1124; Scarborough v. Myrick, 47 
 Neb. 794, 66 N. W. 867; Robinson v. Kind, 23 Nev. 33t), 47 Pac. 1,
 
 § 16 EQUITABLE REMEDIES. 28 
 
 acting upon the land itself, may issue upon such ser- 
 vice.^^ Proceedings for the partition of real estate, the 
 foreclosure of mortgages and the enforcement of liens 
 upon land within the state, are also within the class.^' 
 In all of these cases the title is directly affected by the 
 decree. 
 
 § 16. Remedies in Personam Beyond the Territorial Juris- 
 diction. — "Where the subject-matter is situated within 
 another state or country, but the parties are within the 
 jurisdiction of the court, any suit may be maintained 
 and remedy granted which directly affect and operate 
 upon the person of the defendant and not upon the sub- 
 ject-matter, although the subject-matter is referred to 
 in the decree, and the defendant is ordered to do or to 
 refrain from certain acts toward it, and it is thus ulti- 
 mately but indirectly affected by the relief granted.^*^ 
 This rule applies to the United States courts^^ as well 
 
 977; American B. & L. Assn. v. Mathews, 13 Tex. Civ. App. 425, 35 
 S. W. 690. 
 
 38 Bostwell V. Otis, 9 How. 336, 13 L. ed. 164 (semble). In general, 
 see Eobinson v. Kind, 23 Nev. 330, 47 Pac. 1, 977 (action to cancel 
 deed); Corson v. Shoemaker, 55 Minn. 386, 57 N. W. 134 (reforma- 
 tion); Seculovich v. Martin, 101 Cal. 673, 36 Pac. 387 (suit to com- 
 pel conveyance by absent trustee) ; but compare Adams v. Hecksher, 
 80 Fed, 742, 83 Fed. 281 (statute does not apply, when complaint re- 
 quires a personal act of the defendant). 
 
 39 Martin v. Pond, 30 Fed. 15 (foreclosure); Palmer v. McCor- 
 mick, 28 Fed. 541 (same); Eoller v. Holly, 176 U. S. 398, 20 Sup. Ct. 
 410 44 L. ed. 520 (action to enforce vendor's lien); Wilson v. Mar- 
 tin-Wilson etc, Co., 151 Mass. 515, 24 N. E. 784 (creditor's bill to 
 reach patent right of absent defendant). See, also, Pennoyer v, 
 Neff, 95 U. S. 714, 24 L. ed. 565, 
 
 40 Pom. Eq. Jur,, § 1318. This portion of Pom, Eq. Jur. is quoted 
 in Schmaltz v. York Mfg. Co., 204 Pa. St. 1, 93 Am. St. Kep. 782, 59 
 L. R, A. 957, 53 Atl. 522; Allen v. Buchanan, 97 Ala. 399, 38 Am. St. 
 Eep, 187, 11 South, 777; Butterfield v. Nogales Copper Co. (Ariz.), 80 
 Pac, 345. 
 
 41 Pom. Eq. Jur, § 298.
 
 29 INTRODUCTION. S 16 
 
 as to the state courts, and is also well settled in Eng- 
 land."^2 
 
 42 "The courts of England are, and always have been, courts of 
 conscience, operating in personam and not in rem; and in the exercise 
 of this personal jurisdiction they have always been accustomed to 
 compel the performance of contracts and trusts as to subjects which 
 were not locally or ratione domicilii within their jurisdiction": Ew- 
 ing V. Orr Ewing, L. R. 9 App. Gas. 34, 40, per Lord Selborne, 
 
 The leading English case is Penn v. Lord Baltimore, 1 Ves. Sr. 
 444, 2 Lead. Gas. Eq., 4th Am. ed., 1806, where the subject is fully 
 discussed and conclusions are reached in accordance with the state- 
 ments of the text. See, also, Toller v. Garteret, 2 Vern. 494. The 
 leading American case on this subject is Massie v. Watts, 6 Granch, 
 148, 3 L. ed. 181, where Marshall, C. J., laid down the rule as fol- 
 lows: "When the defendant is liable, either in consequence of a con- 
 tract, or as trustee, or as holder of a legal title acquired by a species 
 of mnla fides practiced on the plaintiff, the principles of equity 
 give a court jurisdiction wherever the person may be found, and the 
 circumstance that a question of title may be involved in the inquiry, 
 and may even constitute the essential point on which the case de- 
 pends, does not seem sufficient to arrest the jurisdiction In 
 
 case of fraud, of trust, or of contract, the jurisdiction of a court of 
 chancery is sustainable wherever the person may be found, although 
 lands not within the jurisdiction may be affected by the decree." 
 Hee similar expressions in Lindley v. O'Reilly, 50 N. J. L. 636, 7 
 Am. St. Rep. 802, 15 Atl. 379, 1 L. E. A. 79; Lynde v. Golumbus C. 
 & I. Ry. Co., 57 Fed. 993; Smith v. Davis, 90 Gal. 25, 25 Am. St. Rep. 
 94, 27 Pac. 27; Johnson v. Gibson, 116 111. 302, 6 N. E. 205; De 
 Klyn V. Watkins, 3 Sandf. Ch. 185; Davis v. Morris, 76 Va. 21. 
 
 In Pomeroy's Equity Jurisprudence, § 1318, "suits for specific per- 
 formance of contracts, for the enforcement of express or implied 
 trusts, for relief on the ground of fraud, actual or constructive, for 
 the final accounting and settlement of a partnership, and the like" 
 are given as examples of the rule. The following cases are given 
 as illustrations: 
 
 Specific Performance.— Municipal Inv. Co. v. Gardiner, 62 Fed. 
 954; Montgomery v. United States, 36 Fed. 4, 13 Saw. 383 (citing 
 Pom. Eq. Jur., § 1317); Penn v. Hayward, 14 Ohio St. 302; Epperly 
 V. Ferguson, 118 Iowa, 47, 91 N. W. 816 (dictum); Brown v. Des- 
 mond, 100 Mass. 267; Pingree v. Coffin, 12 Gray, 288 (specific per- 
 formance of contract to assign bond for conveyance of land in an- 
 other state); Newton v. Bronson, 13 N. Y. 587, 67 Am. Dec. 89; 
 Cleveland v. Burrill, 25 Barb. 532; Ward v. Arredondo, Hopk. Gh.
 
 § 17 EQUITABLE EEMEDIES. 30 
 
 § 17. Same: Limitations of the Doctrine "On the other 
 
 hand, where the suit is strictly local, the subject-matter 
 is specific property, and the relief when granted is such 
 
 213, 14 Am. Dec, 543; Mitchell v. Bunch, 2 Paige, €06, 22 Am. Dec. 
 669; Sutphen v. Fowler, 9 Paige, 280; Burnley v. Stevenson, 24 Ohio 
 St. 474, 15 Am. Kep. 621; Western Union Tel. Co. v. Pittsburg, C. C. 
 & St. L. E. Co., 137 Fed. 435. 
 
 Partnership Affairs. — Dunlap v. Byers, 110 Mich. 109, 67 N. W. 
 1067. 
 
 Enforcement of Trust.— Smith v. Davis, 90 Cal. 25, 25 Am. St. Eep. 
 94, 27 Pac. 27; Gilliland v. Inabuit, 92 Iowa, 46, 60 N. W. 211; 
 Hawley v. James, 7 Paige, 213, 32 Am. Dec. 623; Dickinson v. 
 Hoomes' Admr., 8 Gratt. 353. 
 
 Fraud.— Muller v. Dows, 94 U. S. 444, 24 L. ed. 207; Johnson v. 
 Gibson, 116 111. 302, 6 N. E. 205; Clark v. Seagraves, 186 Mass. 430, 
 
 71 N. E. 813; Noble v. Grandin, 125 Mich. 383, 84 N. W. 465; United 
 States v. Maxwell Land Grant Co., 5 N. Mex. 304, 21 Pac. 153; De 
 Klyn V. Watkins, 3 Sand. Ch. 185. 
 
 Suit to Remove Cloud on Title. — Eemer v. McKay, 54 Fed. 432; 
 Kirklin v. Atlas S. & L. Assn. (Tenn. Ch. App.), 60 S. W. 149. 
 
 Suit to Reform a Deed.— Bethell v. Bethell, 92 Ind. 318. 
 
 Foreclosure of Mortgages.— It is within the jurisdiction of an equity 
 court to order the sale of mortgaged property without the jurisdic- 
 tion. Such decrees do not act against the property itself, but must 
 be enforced by process against the defendant: Muller v. Dows, 94 U. 
 S. 444, 24 L. ed. 207; International B. & T. Co. v. Holland Trust Co., 
 26 C. G. A. 469, 81 Fed. 422; Woodbury v. Allegheny & K. E. E. Co., 
 
 72 Fed. 371; Craft v. Indianapolis, D. & W. Ey. Co., 166 111. 580, 46 
 N. E. 1132 (quoting Pom. Eq. Jur., § 1318); Eaton v. McCall, 86 
 Me. 346, 41 Am. St. Eep. 561, 29 Atl. 1103; Union Trust Co. v. Olm- 
 sted, 102 N. Y. 729, 7 N. E. 822; Toller v. Carteret (1705), 2 Vern. 
 494. This jurisdiction will not be exercised, however, except under 
 unusual or extraordinary conditions. "Wherever it is necessary in 
 order to prevent loss or to protect the rights of a mortgagee, it may 
 be done; for instance, in the ease of a mortgage upon property situ- 
 ated both within and without the state, where unless a sale of the 
 entire property could be made at one time, great loss might ensue, 
 or in other cases where an equally good reason existed. But ordin- 
 arily we think that the holder of a mortgage should be required to 
 resort to the remedies of the courts of jurisdiction in which the land 
 is situated": Eaton v. McCall, 86 Me. 346, 41 Am. St. Eep. 561, 29 
 Atl. 1103. To the effect that a sale of land in another state by a
 
 31 INTRODUCTION. ill 
 
 that it must act directly upon the subject-matter and 
 not merely upon the person of the defendant, the juris- 
 diction must be exercised in the state where the subject- 
 matter is situated."^^ A decree may have extra-terri- 
 torial effect where the imprisonment of the person is 
 the most proper means to elfect that which is decreed 
 to be done, viz., the payment of money, making a con- 
 veyance, or the like. "But where no obedience of the 
 person imprisoned, or any act of his, can sufficiently 
 execute such a decree, there it is in vain to hold such a 
 plea."^* Accordingly, it is generally held that a bill to 
 partition realty must be brought in the state in which 
 
 referee under foreclosure is nugatory, see Farmers' L. & T. Co. v. 
 Postal Tel. Co., 55 Conn. 334, 3 Am. St, Eep. 53, 11 Atl. 184. 
 
 In general, to the effect that a court of equity may compel a con- 
 veyance of property outside its jurisdiction, see Muller v. Dows, 94 
 U. S. 444, 24 L. ed. 207; Guarantee Trust & S. D. Co. v. Delta & Pine 
 Land Co., 43 C. C. A. 396, 104 Fed. 5; Butterfield v. Nogales Copper 
 Co. (Ariz.), 80 Pac. 345; McGee v. Sweeney, 84 Cal. 100, 23 Pac. 1117; 
 Winn V. Strickland, 34 Fla. 630, 16 South. 606; Hayes v. O'Brien, 
 149 111. 403, 37 N. E. 73, 23 L. R. A. 555 (land in another county); 
 Johnson v. Gibson, 116 111. 294, 6 N. E. 205 (suit by creditors to set 
 aside fraudulent conveyance) ; Barringer v. Ryder, 119 Iowa, 121, 93 
 N. W. 56; McQuerry v, Gilliland, 89 Ky. 434, 12 S. W. 1037, 7 L. R. 
 A. 454; Carver v. Peck, 131 Mass. 292 (suit to restrain the transfer 
 of property outside the jurisdiction of the court) ; Noble v. Gran- 
 din, 125 Mich. 383, 84 N. W. 465; Vreeland v. Vreeland, 49 N. J. Eq. 
 322, 24 Atl. 551; Gardner v. Ogden, 22 N. Y. 327, 332-339, 78 Am. 
 Dec. 192; Bailey v. Ryder, 10 N. Y. 363; Vaught v. Meador, 99 Va. 
 569, 86 Am. St. Rep. 908, 39 S. E. 225; Poindexter v. Burwell, 82 
 Va. 507; Gates v. Paul, 117 Wis. 170, 94 N. W. 55. See, also, Wood 
 V. Warner, 15 N. J. Eq. 81 ("the power of the court to decree the 
 settlement of the accounts between the parties, and the payment of 
 the balance, if any found due, and to enforce such decree in per- 
 sonam cannot be qestioned"). 
 
 43 Pom. Eq. Jur., §§ 1318, 298. For illustration, see Cooley v. 
 Scarlett, 38 111. 316, 87 Am. Dec. 298 (cancellation of deed recorded 
 in another state refused). 
 
 44 Carteret v. Petty, 2 Swans. 323^ This was a bill for account 
 und partition.
 
 i 18 EQUITABLE EEMEI>IEa 32 
 
 the land is situated.'"' Likewise, it would seem tliat an 
 action to abate a nuisance must be maintained in the 
 state in which the land is.^® 
 
 § 18. Injunctions Against Acts in Foreign States The 
 
 courts are not in entire harmony as to when an injunc- 
 tion will issue to restrain acts in another state. It is 
 well settled that bills to enjoin the prosecution of suits 
 or the enforcement of judgments in other jurisdictions 
 may, upon proper showing, be sustained.^'^ As to torts 
 in general, however, there is a conflict of authority. It 
 is sometimes held that suits to enjoin a trespass or nui- 
 sance are purely local and consequently come within 
 the limitation stated in the preceding paragraph.^* 
 On the other hand, it is held by other courts that such 
 suits are maintainable if jurisdiction of the person is 
 obtained.'** 
 
 4 5 Carteret v. Petty, 2 Swans. 323; Schick v. Whitcomb (Neb.), 
 94 N. W. 1023; Poindexter v. Burwell, 82 Va. 507; Wimer v. Wimer, 
 82 Va. 890, 3 Am. St. Rep. 126, 5 S. E. 536; Pillow v. Southwest Va. 
 Imp. Co., 92 Va. 144, 53 Am. St. Eep. 804, 23 S. E. 32; but see Vree- 
 land V. Vreeland, 49 N. J. Eq. 322, 24 Atl, 551, affirming 48 N. J. Eq. 
 56, 21 Atl. 627. 
 
 46 People V. Central R. E. Co., 42 N. Y. 283; Morris v. Eemington, 
 j Pars. Eq. Cas. 389. 
 
 47 This subject is discussed at length, post, Vol. II. See, also, Cole 
 V. Cunningham, 133 U. S. 107, 10 Sup. Ct. 269, 33 L. ed. 538; Pickett 
 V. Ferguson, 45 Ark. 177, 55 Am. Eep. 545; Hawkins v. Ireland, 64 
 Minn. 339, 58 Am. St. Eep. 534, 67 N. W. 73; Kendall v. McClure 
 Coke Co., 182 Pa. St. 1, 61 Am. St. Eep. 688, 37 Atl, 823; Allen v. 
 Buchanan, 97 Ala. 399, 38 Am. St. Eep. 187, 11 South. 777, and case» 
 cited (injunction against foreign garnishment suit brought to evade 
 the laws of plaintiff's and defendant's domicile); Mead v. Merritt,. 
 2 Paige, 402. 
 
 48 Northern Indiana E. Co. v. Michigan Central E. Co., 15 How. 
 233, 14 L. ed. 674; Miss. & Mo. R. R. v. Ward, 2 Black, 485, 17 L. 
 ed. 311. 
 
 49 Great Falls Mfg. Co. v. Worster, 23 N. H. 462; Alexander v. 
 Tolleston Club, 110 111. 65. See the following miscellaneous cases in
 
 33 INTEODUCTION. i 19 
 
 III. 
 
 § 19. Laches: In General — Probably no principles of 
 equity have been the subject of more contradictory ju- 
 dicial statements than those relating to the effect of 
 laches or delay. The resulting confusion is the more 
 deplorable owing to the frequency with which the de- 
 fense is asserted, and the favor with which it appears 
 to be regarded by many courts.^'' Apart from the ele- 
 ment of uncertainty shared by it in common with other 
 equitable defenses, the application of which must neces- 
 sarily rest in judicial discretion, there appears to be a 
 fundamental difference of opinion as to the ultimate 
 reasons in ethics or in public policy upon which the 
 defense of laches should be based. ^^ Tlie subject is 
 further complicated by a hopeless confusion in nomen- 
 clature. The term "acquiescence," in one of its two 
 legal significations, is often used interchangeably with 
 the term "laches" 'p while in the innumerable cases re- 
 
 which injunctions were issued: Schmaltz v. York Mfg. Co., 204 Pa. St. 
 1, 93 Am. St. Eep. 782, 53 Atl. 522, 59 L. R. A. 907 (injunction 
 against removing fixtures from property in another state); Frank 
 V. Peyton, 82 Ky. 150 (injunction against disposing of property 
 pending suit). The same principle has been held to apply to suits 
 for injunction against trespass in another county: Jennings v. Beale, 
 358 Pa. St. 283, 27 Atl. 948; Clad v. Paist, 181 Pa. St. 148, 37 Atl. 
 194. It is said in Western Union Tel. Co. v. Western & Atlantic E., 
 8 Baxt. 54, that equity will not make a decree which it cannot en- 
 force by its own authority. 
 
 50 See post, § 23, note 66. 
 
 51 Compare the passages quoted in §§ 21, 23, post. 
 
 52 The two significations of "acquiescence" are clearly stated in 
 De Bussche v. Alt, L. E. 8 Ch. Div. 286, 314; see the passage quoted 
 in full, 2 Pom. Eq. Jur., § 965, note 1; and particularly, the follow- 
 ing portion: "The term 'acquiescence,' .... if used at all, must 
 have attached to it a very diiferent signification, according to whether 
 the acquiescence alleged occurs while the act acquiesced in is in 
 
 progress or only after it has been completed But when once 
 
 the act is completed, without any knowledge or assent upon the part. 
 
 Equitable Eemedies, Vol. I — 3
 
 § ^S EQUITABLE EEMEDIES. 34 
 
 lating to relief from fraud, actual or constructive, the 
 courts have seldom been at pains to distinguish the gen- 
 eral doctrines relating to laches from the particular doc- 
 trine as to "confirmation" of the fraudulent act, and 
 the necessity of prompt election to rescind by the de- 
 frauded party.^^ These topics have been sufficiently 
 treated elsewhere ;°* the following paragraphs merely 
 
 of the person whose right is infringed, the matter is to te deter- 
 mined upon very different legal considerations. A right of action 
 has then vested in him which, at all events as a general rule, can- 
 not be divested without accord and satisfaction, or release under 
 seal. Mere submission to the injury for any time short of the period 
 limited by statute for the enforcement of the right of action, cannot 
 take away such right, although under the name of laches it may 
 afford a ground for refusing relief under some peculiar circum- 
 stances," etc. For other definitions of "acquiescence," see Hall v. 
 Otterson, 52 N. J. Eq. 522, 28 Atl. 907; Babb v. Sullivan, 43 S, C. 
 436, 21 S. E. 277. The following paragraphs concern the effect of 
 delay by the injured party, after the commission of the injury, 
 whether or not that delay is termed by the courts "acquiescence" 
 or something else. 
 
 53 Cases involving the doctrine as to "ratification," "confirma- 
 tion" or "election to rescind" are excluded from the following dis- 
 cussion. For instances see, in addition to those cited in the para- 
 graphs of Pom. Eq. Jur., mentioned below, and post, in chap- 
 ter on Cancellation, Baker v. Cummings, 169 U. S. 189, 18 Sup. 
 Ct. 367, 42 L. ed. 711 (enjoying profits of transaction with knowledge 
 of fraud); Eugan v. Sabin, 53 Fed. 415, 418, 3 C. C. A. 578, 580, 10 
 U. S. App. 519, 530 (necessity of prompt election) ; Kinne v. Webb, 
 64 Fed. 34, 4 C. C. A. 170, 12 U. S. App. 137, affirming 49 Fed. 512 
 (same); Seheftel v. Hays, 58 Fed. 457, 7 C. C. A. 308, 19 U. S. App. 
 220; Mudsill Mining Co. v. Watrous, 61 Fed. 163, 9 C. C. A. 415 (de- 
 lay for purpose of securing evidence of the fraud does not show 
 ratification); Brown v. Brown, 142 111. 409, 32 N. E. 500; Provident 
 Loan Trust Co. v. Mcintosh, 68 Kan. 452, 75 Pac. 498; Norfolk & 
 N. B. Hosiery Co. v. Arnold, 49 N. J. Eq. 390, 23 Atl. 514; Hilliard 
 V. Allegheny Geometrical Wood Carving Co., 173 Pa. St. 1, 34 Atl. 
 231; Dunn v. Columbia Nat. Bank, 204 Pa. St. 53, 53 Atl. 519. 
 
 54 See 2 Pom. Eq. Jur., § 817 (acquiescence as a quasi estoppel 
 upon rights of remedy); §§ 818-820 (acquiescence as a true estoppel 
 upon rights of property or of contract); § 897 (necessity of prompt 
 disaffirmance of fraudulent transaction); §§ 916, 917 (ratification of,
 
 35 INTRODUCTION. S 20 
 
 attempt to set forth the more important statements in 
 the recent cases defining: (1) The attitude of courts of 
 equity to statutes of limitations, in the cases where 
 those statutes are not, by their terms, binding upon 
 such courts; (2) the general view, that the doctrine of 
 laches is an application of the general principles of 
 estoppel; (3) a broader view, chiefly expressed in a 
 series of important decisions by the United States su- 
 preme court; (4) circumstances which operate as an 
 excuse for delay, or tend to minimize its effect in equity. 
 
 § 20. Following the Analogy of Statutes of Limitations 
 
 The following language of an able federal judge has 
 been frequently referred to as defining the attitude of 
 courts of equity to the statutes of limitations, in those 
 cases, where, from the nature of the relief sought, such 
 statutes are capable of affording guidance.^^ "In the 
 application of the doctrine of laches, the settled rule is 
 that courts of equity are not bound by, but that they 
 usually act or refuse to act in analogy to, the statute of 
 limitations relating to actions at law of like character.^^ 
 The meaning of this rule is that, under ordinary cir- 
 cumstances, a suit in equity will not be stayed for 
 laches before, and will be stayed after the time fixed 
 by the analogous statute of limitations at law; but if 
 
 and acquiescence in, fraudulent transaction) ; § 964 (confirmation or 
 ratification in cases of fraud, actual or constructive) ; § 965 (ac- 
 quiescence and lapse of time in cases of fraud, actual or constructive). 
 
 55 Kelley v, Boettcher, 85 Fed. 55, 62, 29 C. C. A. 14, 21, 56 U. S. 
 App. 363, 383, per Sanborn, C. J, (suit to rescind sale of one-sixth 
 of a mining claim, and to obtain an accounting and recovery of the 
 proceeds thereof). 
 
 56 Citing Rugan v. Sabin, 10 U. S. App. 519, 534, 3 C. C. A. 578, 
 582, 53 Fed. 415, 420; Billings v. Smelting Co., 10 U. S. App. 1, 62, 2 
 C. C. A. 252, 262, 263, 51 Fed. 338, 349; Bogan v. Mortgage Co., 
 27 U. S. App. 346, 357, 11 C. C. A. 128, 135, 63 Fed. 192, 199; Kinne 
 V. Webb, 12 U. S. App. 137, 148, 4 C. C. A. 170, 177, 54 Fed. 34, 40;
 
 § 20 EQUITABLE REMEDIES. 36 
 
 unusual conditions or extraordinary circumstances 
 make it inequitable to allow the prosecution of a suit 
 after a briefer, or to forbid its maintenance after a 
 longer, period than that fixed by the statute, the chan- 
 cellor will not be bound by the statute, but will deter- 
 mine the extraordinary case in accordance with the 
 
 equities which condition it When a suit is 
 
 brought within the time fixed by the analogous statute, 
 
 Scheftel v. Hays, 19 IT. S. App. 220, 226, 7 C. C. A. 308, 312, 58 Fed. 
 457, 460; "Wagner v. Baird, 7 How. 234, 258, 12 L. ed. 681; Godden 
 V. Kimmell, 99 U. S. 201, 210, 25 L. ed. 431; Wood v. Carpenter, 101 
 U. S. 135, 139, 25 L. ed. 807. 
 
 See, in general. Baker v. Cummings, 169 U. S. 189, 18 Sup. Ct. 367, 
 42 L. ed. 711 (no jurisdiction when an adequate remedy at law has 
 been barred by limitation); Church of Christ v, Reorganized Church 
 etc., 70 Fed. 179, 17 C. C. A. 387, 36 U. S. App. 110; Kelley v. 
 Boettcher, 85 Fed. 55, 62, 56 U. S. App. 363, 383, 29 C. C. A. 14, 21; 
 Contine-ntal Nat. Bank v. Heilman, 86 Fed. 514, 30 C. C. A. 232; " 
 Williamson v. Monroe, 101 Fed. 322; Nash v. Ingalls, 101 Fed. 645, 
 41 C. C. A. 545 (affirming 79 Fed. 510); Stevens v. Grand Central Min. 
 Co. (C. C. A.), 133 Fed. 28; Moore v. Moore, 103 Ga. 517, 30 S. E. 
 535; Sherwood v. Baker, 105 Mo. 472, 24 Am. St. Eep. 399, 16 S. W. 
 938 (one having equitable title to realty, although there is no right 
 to recover possession at law, can lose his right only by adverse poa- 
 session for the time required to extinguish a legal title) ; Colton v. 
 Depew, 60 N. J. Eq. 454, 83 Am. St. Eep. 650, 46 Atl. 728 (fore- 
 closure of mortgage); Church v. Winton, 196 Pa. St. 107, 46 Atl. 
 363; Maxwell v. Wilson, 54 W. Va. 495, 46 S. E. 349; Newberger v. 
 Wells, 51 W. Va. 624, 42 S. E. 625; Waldron v. Harvey, 54 W. Va. 
 608, 102 Am. St. Eep. 959, 46 S. E. 603. 
 
 Tn the following cases relief was refused because the correspond- 
 ing legal remedy was barred by the statute of limitations: Kansas 
 City Southern E. Co. v. Stevenson, 135 Fed. 553; Kinne v. Webb, 54 
 Fed. 34, 4 C. C. A. 170, 12 U. S. App. 137 (bill to set aside transfer 
 of personal property); Southern Pac. E. Co. v. Groeck, 68 Fed. 609; 
 Hale V. Coffin, 120 Fed. 470 (bill to follow properties of a deceased 
 stockholder and to charge legatee, based on a legal demand) ; Ela v. 
 Ela, 158 Mass. 54, 32 N. E. 957 (action for accounting by guardian, 
 when plaintiff might have brought trover) ; St. John v. Coates, 63 
 Hun, 460, 18 N. Y. Supp. 419; Drake v. Wild, 70 Vt. 52, 39 Atl. 248. 
 An instructive instance of the granting of relief by a federal court, 
 though the period prescribed by the statute of limitations of the
 
 37 INTRODUCTION. | 20 
 
 the burden is on the defendant to show, either from the 
 face of the bill or by his answer, that extraordinary cir- 
 cumstances exist which require the application of the 
 doctrine of laches; and, when such a suit is brought 
 after the statutory time has elapsed, the burden is on 
 the complainant to show, by suitable averments in his 
 bill, that it would be inequitable to apply it to his 
 case."^^ It should be noticed that the courts of the 
 
 state had run, is found in the very recent case of Stevens v. Grand 
 Central Min. Co. (C. C. A.), 133 Fed. 28, relying on Kelley v. 
 Boettcher. 
 
 In the following cases the period of the statute had not run, and 
 the delay was not fatal: Fowle v. Park, 48 Fed. 789; Jonathan Mills 
 Mfg. Co. V. Whitehurst, 60 Fed. 81 (suit for infringement of patent) ; 
 Kitehie v. Sayers, 100 Fed. 520; Williamson v. Monroe, 101 Fed. 
 322; Ide V. Trorlicht, Duncker & Eenard Carpet Co., 115 Fed. 137, 
 148; Brown v. Arnold (C. C. A.), 131 Fed. 723; Davis v. Williams, 
 121 Ala. 542, 25 South. 704; First Nat. Bank v. Nelson, 106 Ala. 535, 
 18 South. 154; Gordon v. Johnson, 186 111. 18, 57 N. E. 790; Ross 
 V. Payson, 160 111. 358, 43 N. E. 399; Moore v. Dick (Mass.), 72 N. E. 
 967; Oliver v. Lansing, 48 Neb. 338, 67 N. W. 195; Michigan Trust 
 Co. v. City of Red Cloud (Neb.), 92 N. W. 900; Condit v. Bigalow, 
 64 N. J. Eq. 504, 54 Atl. 160; Renshaw v. First Nat. Bank (Tenn. 
 Ch. App.), 63 S. W. 194; Watson v. Texas & P. Ry. Co. (Tex. Civ. 
 App.), 73 S. W. 830; Ludington v. Patton, 111 Wis. 208, 86 N. W. 
 571. 
 
 57 Sanborn, Cir. J., continues: "The cases of Wagner v. Baird, 7 
 How. 234, 12 L. ed. €81; Godden v. Kimmell, 99 U. S. 201, 25 L. ed. 
 431; Wood v. Carpenter, 101 U. S. 135, 139, 25 L. ed. 807, and Rugan 
 V. Sabin, 10 tJ. S. App. 519, 534, 3 C. C. A. 578, 582, 53 Fed. 415, 420, 
 belong to the class of cases in which the doctrine of laches was ap- 
 plied after the statute of limitations had run. The cases of Billings 
 V. Smelting Co., 10 U. S. App. 1, 62, 2 C. C. A. 252, 262, 263, 51 Fed. 
 338, 349, and Began v. Mortgage Co., 27 U. S. App. 347, 357, 11 
 C. C. A. 12/^, 135, 63 Fed. 192, 199, belong to the class of cases in 
 which the court refused to apply the doctrine of laches within the 
 time fixed bv the statute." See, also, Boynton v. Haggart, 120 Fed. 
 819; Kansas City Southern R. Co. v. Stevenson, 135 Fed. 553. 
 
 The effect of statutes which are by their very terms applicable 
 to suits in e(juity is well described in a very recent judgment of the 
 supreme court of the United States: Patterson v. Hewitt, 195 U. S. 
 309, 2.'' Unj) ^t. 35, 49 L. ed. , by Mr. Justice Brown: "When the
 
 I 20 EQUITABLE EEMEDIES. 3S 
 
 United States are not bound, by way of analogy or other- 
 wise, by the statutes of limitations of the several states, 
 in cases where to apply such statutes would be to im- 
 
 Btatute is in terms applicable to suits in equity, as well as at law, 
 it is ordinarily construed, in cases demanding equitable relief, as 
 fixing a time beyond which the suit will not, under any circumstances, 
 lie; but not as precluding the defense of laches, provided there has 
 been unreasonable delay within the time limited by the statute. In 
 an action at law, courts are bound by the literalism of the statute; 
 but in equity the question of unreasonable delay within the statutory 
 limitation is still open: Alsop v. Kiker, 155 U. S. 448-460, 39 L. ed. 
 
 218-222, 15 Sup. Ct. 162 If this were not so, it would seem to 
 
 follow that in the code states, where there is but one form of action 
 applicable both to proceedings of a legal and equitable nature, a 
 statute of limitations, general in its terms, would apply to suits of 
 both descriptions, and the doctrine of laches become practically obso- 
 lete. This, however^ is far from being the case, as questions of 
 laches are as often arising and being discussed in the code states 
 as in the others. In a few cases where the statute of limitations 
 is made applicable in terms to suits in equity, it haS been construed 
 as allowing a suit to be begun at any time within the period limited 
 by the statute, notwithstanding the intermediate laches of the com- 
 plainant, although in those cases it will usually be found that the 
 language of the statute is explicit an J imperative: Hill v. Nash, 73 
 Miss. 849, 19 South. 709; Washington v. Soria, 73 Miss. 665, 55 Am. 
 St. Eep. 555, 19 South. 485. But the weight of authority is the 
 other way, and we consider the better rule to be that, even if the 
 statute of limitations be made applicable, in general terms, to suits 
 in equity, and not to any particular defense, the defendant may 
 avail himself of the laches of the complainant, notwithstanding the 
 time fixed by the statute has not expired. This has been expressly 
 held in Alabama (Scruggs v. Decatur Mineral & Land Co., 86 Ala. 
 173, 5 South. 440), in Missouri (Bliss v. Prichard, 67 Mo. 181; Kline 
 V. Vogel, 90 Mo. 239, 1 S. W. 733, 2 S. W. 408), and in New York 
 (Calhoun v. Millard, 121 N. Y. 69, 8 L. E. A. 248, 24 N. E. 27). In 
 the last case the question is discussed at considerable length by 
 Chief Judge Andrews, and the conclusion reached that 'the period 
 of limitations of equitable actions fixed by the statute is not, where 
 a purely equitable remedy is invoked, equivalent to a legislative di- 
 rection that no period short of that time shall be a bar to relief in 
 any case, or precludes the court from denying relief in accordance 
 with equitable principles for unreasonable delay, although the full 
 period of ten years has not elapsed since the cause of action ac 
 crued. ' "
 
 89 INTKODUCTION. § 21 
 
 pair or abriclQ:e the equity jurisdiction of such courts;''® 
 as for example, statutes which alter the settled rule 
 of equity that a cause of action for fraud accrues at the 
 time when the fraud was or should have been discov- 
 ered.^^ 
 
 § 21. General Doctrine: Laches is Prejudicial Delay. — 
 The true doctrine concerning laches has never been more 
 concisely and accurately stated than in the following 
 language of an able living judge: "Laches, in legal sig- 
 nificance, is not mere delay, but delay that works a dis- 
 advantage to another. So long as parties are in the 
 same condition, it matters little whether one presses 
 a right promptly or slowly, within limits allowed by 
 law; but when, knowing his rights, he takes no step to 
 enforce them until the condition of the other party has, 
 in good faith, become so changed that he cannot be re- 
 stored to his former state, if the right be then enforced, 
 delay becomes inequitable, and operates as estoppel 
 against the assertion of the right. The disadvantage 
 
 58 Kirby v. Lake Shore & M. S. R. Co., 120 U. S. 137, 7 Sup. Ct. 
 430, 30 L. ed. 571; Stevens v. Grand Central Min. Co. (C. C. A.), 
 133 Fed. 28; Johnston v. Roe, 1 McCrary, 165, 1 Fed. 692, 695; Tice 
 V, School District, 5 McCrary, 362, 17 Fed. 283, 285. But "although 
 the ordinary chancery jurisdiction of the courts of the United States 
 cannot be abridged by state statutes, they recognize those of the 
 state in which the court is sitting, limiting the time for bringing 
 suits, and adopt them, if they do not act in obedience to them. 
 Accordingly, they will adjudge, in cases over which there is a con- 
 current jurisdiction by courts of law and equity, that lapse of time 
 to be a bar in equity which would have constituted a bar if the ac- 
 tion had been at law": Per Wallace, Cir. J., in Miles v. Vivian, 79 
 Fed. 848, 25 C. C. A, 208; and see Pulliam v. Pulliam, 10 Fed. 30; 
 Percy v, Cockrill, 53 Fed. 872, 4 C. C. A. 73, 10 U. S. App. 574; Hale 
 V. Coffin, 120 Fed. 470; Higgins Oil & Fuel Co. v. Snow, 113 Fed. 433, 
 51 C. C. A. 267. 
 
 59 Kirby v. Lake Shore & M. S. Ey. Co., 120 U. S. 137, 7 Sup. Ct. 
 430, 30 L. ed. 571.
 
 § 21 EQUITABLE EEMEDIES. 40 
 
 may come from loss of evidence, change of title, inter- 
 vention of equities, and other causes ; but when a court 
 sees negligence on one side and injury therefrom on the 
 other it is a ground for denial of relief."^® The follow- 
 
 60 Chase v. Chase, 20 E. I. 202, 37 Atl. 804, by Stinness, C. J. See, 
 also, Abraham v. Ordway, 158 U. S. 416, 15 Sup. Ct. 894, 39 L. ed. 
 1036; Willard v. Wood, 1G4 U. S. 502, 524, 17 Sup. Ct. 176, 41 L. ed. 
 531; Penn Mutual Life Ins. Co. v. City of Austin, 168 U. S. 685, 18 
 Sup. Ct. 223, 42 L. ed. 627 (no injunction against enforcement of or- 
 dinance for municipal waterworks, where there has been a delay of 
 five years, during which bonds had been issued and a large part 
 of the proceeds expended); O'Brien v. Wheelock, 184 U. S. 450, 22 
 Sup. Ct. 354, 46 L. ed. 636, affirming 95 Fed. 883, 37 C. C. A. 309 
 ("it is not a mere matter of lapse of time, but of change of situa 
 tion during neglectful repose, rendering it inequitable to afford re 
 lief"); Mclntire v. Pryor, 173 U. S. 38, 19 Sup. Ct. 352, 43 L. ed 
 606 (affirming 10 App. D. C. 432); Hammond v. Hopkins, 143 U. S, 
 224, 250, 12 Sup. Ct. 418, 36 L. ed. 134; Wilson v. Smith, 117 Fed 
 707; State Trust Co. v. Kansas City P, & G. E. Co., 120 Fed. 398 
 London & S. F. Bank, Ltd., v. Dexter Horton & Co., 126 Fed. 593 
 Jonathan Mills Mfg. Co. v. Whitehurst, 60 Fed, 81; Lasher v. Mc 
 Creery, 66 Fed. 834; O'Brien v. Wheelock, 78 Fed. 673; Bartlett v, 
 Ambrose, 78 Fed. 839, 24 C. C. A. 397; Wheeling Bridge & Terminal 
 Ey. Co. V. Eeymann Brewing Co., 90 Fed. 189, 32 C. C. A. 571 (delay 
 of seven years not laches when no change in condition); Hanchett 
 V. Blair, 100 Fed. 817, 41 C. C. A. 76; Williamson v. Monroe, 101 
 Fed. 322; Bissell Chilled Plow Works v. T. M. Bissell Plow Co., 121 
 Fed. 357 (mere delay of six years no bar to injunction against unfair 
 competition); Shea v. Nilima (C. C. A.), 133 Fed. 209 (delay of 
 two years in suing to recover interest in mining claim, no laches 
 when defendants have not been prejudiced); Haney v, Legg, 129 
 Ala. 619, 87 Am. St. Eep. 81, 30 South. 34; Pratt Land & Imp. Co. 
 V. McClain, 135 Ala. 452, 93 Am. St. Eep. 35, 33 South. 185; Duke v. 
 State, 56 Ark. 485, 20 S. W. 600 (foreclosure of mortgage made in 
 1837 allowed in 1876, when no prejudice); Bryan v. Hobbs (Ark.), 83 
 S. W. 340; Hovey v. Bradbury, 112 Cal. 620, 44 Pac. 1077; Ex-Mission 
 Land & Water Co. v. Flash, 97 Cal. 610, 32 Pac. 600; Earl v. Van 
 Natta, 29 Ind. App. 532, 64 N. E. 901; Brake v. Payne, 137 Ind. 
 479, 37 N. E. 140; Citizens' Nat. Bank v. Judy, 146 Ind. 322, 43 
 N. E. 259 (delay of eleven months in asking reformation is not such 
 laches as will bar relief when there is no change in the relative 
 positions of the parties); Dunbar v. Green (Kan.), 72 Pac. 243 ("the 
 mere extent of the delay is one item to be considered. Among otheri
 
 41 INTRODUCTION. S 21 
 
 ing definition has probably been more often relied on by 
 recent cases than any other proceeding from an English 
 judge: "The doctrine of laches in courts of equity is 
 not an arbitrary or technical doctrine. Where it would 
 be practically unjust to give a remedy, either because 
 the party has, by his conduct, done that which might 
 fairly be regarded as equivalent to a waiver of it, or 
 where, by his conduct and neglect, he has, perhaps, not 
 
 are any change of conditions, the intervention of the rights of third 
 parties, the likelihood of other interests being affected hj the delay, 
 the presence of fraud and its character, the diligence required to 
 ■discover it, and so on"); Spalding v. St. Joseph's Industrial School, 
 107 Ky. 382, 54 S. W. 200 (delay of twenty-five years without knowl- 
 edge of facts not laches when relative positions of parties not 
 changed); Cooke v. Barrett, 155 Mass. 413, 29 N. E. 625 (delay of 
 four months after distribution is fatal to objection to composition 
 with creditors, because of change of position of parties) ; Eipley v. 
 Seligman, 88 Mich. 177, 50 N. W. 143; Washington Lodge v. Freling- 
 huysen (Mich.), 101 N. W, 569 (delay of twelve years, during which 
 rights had accrued); Sherwood v. Baker, 105 Mo. 472, 24 Am. St. Rep. 
 399, 16 S. W. 938; Dunklin County v. Choteau, 120 Mo. 577, 25 S. W. 
 553; Lindell Real Estate Co. v. Lindell, 142 Mo. 61, 43 S. W. 36S 
 (delay of eleven years not laches when no change in condition); Wolf 
 V. Great Falls etc. Co., 15 Mont. 49, 38 Pac. 115; Mantle v. Speculator 
 Min. Co., 27 Mont. 473, 71 Pac. 665; Fitzgerald v. Fitzgerald & 
 Mallory Const. Co., 44 Neb. 463, €2 N. W. 899; Daggers v. Van Dyck, 
 37 N. J. Eq. 130; Tynan v. Warren, 53 N. J. Eq. 313, 31 Atl. 596; 
 LunJy V. Seymour, 55 N. J. Eq. 1, 35 Atl. 893 (mere delay of four- 
 teen years is not laches); Law v. Smith (N. J. Eq.), 59 Atl. 327 
 (four years; no change in position); Spencer v. Seaboard Air Line 
 Ey. Co. (N. C), 49 S. E. 96; Wilson v. Wilson, 69 Pac. 923, 41 Or. 
 459; Gorham v. Sayles, 23 R. I. 449, 50 Atl. 848; Parker v. Bethel 
 Hotel Co., 96 Tenn. 252, 31 L. R. A. 706, 34 S. W. 209; Renshaw v. 
 First Nat. Bank (Tenn. Ch. App.), 63 S. W. 194; Robinson v. Kamp- 
 mann, 5 Tex. Civ. App, 605, 24 S. W. 529; Hamilton v. Dooly, 15 
 Utah, 280, 49 Pac. 769; Tidball's Exrs. v. Shenandoah Nat. Bank 
 (W. Va.), 42 S. E. 867 (good statement); Ludington v. Patton, 111 
 Wis. 208, 86 N. W. 571; Northern Trust Co. v. Snyder, 113 Wis. 
 516, 90 Am. St. Rep. 867, 89 N. W. 460 (mere delay not sufficient to 
 bar taxpayers' suit against municipal corporation); Farr v, Hauen- 
 stein (N. J. Eq.), 61 Atl. 147j Wollaston v. Tribe, L. E. 9 Eq. Cas. 
 44, per Romily, M. E.
 
 i 21 EQUITABLE REMEDIES. 42 
 
 waiving that remedy, yet put the other party in a situa- 
 tion in which it would not be reasonable to place him 
 if the remedy were afterward to be asserted in either 
 of these cases, lapse of time is most material."^^ The 
 language of an able western court in a very recent case 
 describes the general doctrine with notable accuracy: 
 "Several conditions may combine to render a claim or 
 demand stale in equity. If by the laches and delay of 
 the complainant it has become doubtful whether ad- 
 verse parties can command the evidence necessary to a 
 fair presentation of the case on their part, or if it ap- 
 pears that they have been deprived of any such advan- 
 tages they might have had if the claim had been season- 
 ably insisted upon, or before it became antiquated, or if 
 they be subjected to any hardship that might have been 
 avoided by reasonably prompt proceedings, a court of 
 equity will not interfere to give relief, but will remain pas- 
 sive ; and this although the full time may not have elapsed 
 which would be required to bar a remedy at law. If, 
 however, upon the other hand, it clearly appears that 
 lapse of time has not in fact changed the conditions and 
 relative positions of the parties, and that they are not 
 materially impaired, and there are peculiar circum- 
 stances entitled to consideration as excusing the delay, 
 the court will not deny the appropriate relief, although 
 a strict and unqualified application of the rule of limi- 
 tations would seem to require it. Every case is gov- 
 
 61 Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 221, per Lord 
 Selborne, who continues: "But in every case, if an ar^ment against 
 relief which otherwise would be just is founded upon mere delay, 
 that delay, of course, not amounting to a bar by any statute of 
 limitations, the validity of that defense must be tried upon princi- 
 ples substantially equitable. Two circumstances, always important 
 in such cases, are the length of the delay and the nature of the acts 
 done during the interval, which might affect either party and cause 
 a balance of justice or injustice in taking one course or the other." 
 See Ryason v. Dunten (Ind.), 73 N. E. 74.
 
 43 liNTKODUCTION. 8 22 
 
 erned chiefly by its own circumstances."^^ Dicta to 
 substantially the same effect from nearly all the Ameri- 
 can courts may be readily accumulated, all tending to 
 show that the doctrine of laches is, for the most part, 
 merely an application of the broader maxims of equity, 
 "He who seeks equity must do equity," and "He who 
 comes into equity must come with clean hands." It 
 exacts of the plaintiff no more than fair dealing with 
 his adversary. It is in no way dependent on those gen- 
 eral considerations of public utility, and the "repose of 
 society," which' are, in legal theory, the legislative mo- 
 tive for statutes of limitations. 
 
 § 22. Illustrations: Improvements or Sales by Defendant 
 — Loss or Obscuring of Defendant's Evidence. — "A delay of 
 a party holding an equitable right to property which 
 has permitted another, who holds the legal title, to ex- 
 pend large sums of money in the improvement of the 
 property, and thereby greatly enhance it in value, 
 which he would not have done had the right been prop- 
 erly asserted, has usually been considered such laches 
 as will preclude the party guilty of it from relief. If 
 the party holding the equitable right would avail him- 
 self of it, he must assert it in a reasonable time. 
 Equity will not permit him to stand by and permit the 
 other party, who holds the legal title, to improve and 
 develop the property until it has become valuable, or 
 greatly increased in value, and then assert his right. "^' 
 
 62 Wilson V. Wilson, 41 Or. 459, 69 Pac. 923, per Woolverton, J. 
 
 63 Gibson v. Herriott, 55 Ark. 85, 29 Am. St. Eep. 17, 17 S. W. 
 589. See, also, Gildersleeve v. New Mexico Min. Co., 161 U. S. 573, 
 582, 16 Sup. Ct. 663, 40 L. ed. 812 (delay of thirty years); O'Brien 
 V. Wheelock, 184 U. S. 450, 22 Sup. Ct. 354, 46 L. ed. 636 (delay of 
 nine years); Halstead v. Grinnan, 152 U. S. 412, 14 Sup. Ct. 641, 38 
 L. ed. 495; Sclilawig v. Purslow, 59 Fed. 848, 8 C. C. A. 315, 19 U. S. 
 A pp. 501 (delay of ten years); Wetzel v. Minnesota Ry. Transfer Co., 
 65 Fed. 23, 12 C. C. A. 490, 27 U. S. App. 594 (delay of forty-two
 
 5 22 EQUITABLE REMEDIES. 44 
 
 Again, when tlie property in dispute has been sold by 
 the party at fault to innocent parties, a delay by the 
 complainant may amount to laches.^^ 
 
 Where important evidence in behalf of the defendant 
 has been lost during the delay of the complainant, he 
 will generally be barred from relief. The loss may 
 result from the death or incapacity of some of the wit- 
 nesses. Again, the delay may be so long that under 
 the circumstances many of the important facts have 
 become obscured. To allow a complainant relief in 
 such cases would frequently risk a great hardship to 
 innocent parties. Consequently, the courts decline to 
 interfere.^^ 
 
 years); Dickman v. Dryden, 90 Minn. 244, 95 N. W. 1120; Loomis v. 
 Eosenthal, 34 Or. 585, 57 Pac. 55; Chezum v. McBride, 21 Wash. 558, 
 58 Pac. 1067; Melms v. Pabst Brewing Co., 93 Wis. 153, 57 Am. St. 
 Eep. 899, 66 N. W. 518. 
 
 64 Wetzel V. Minnesota By. Transfer Co., 65 Fed, 23, 12 C. C. A. 
 490, 27 U. S. App. 594; Nantahala Marble & Talc Co. v. Thomas, 76 
 Fed. 59 (delay of twelve years); Helfenstein v. Eeed, 62 Fed. 214, 
 10 C. C. A. 327, 27 U. S. App. 103 (delay of twenty-five years); St. 
 Paul, S. & T. F. R. Co. v. Sage, 49 Fed. 315, 1 C. C. A. 256, 4 U. S. 
 App. 160 (reversing 32 Fed. 821, 44 Fed. 817) ; Bateman v. Butler, 19 
 Colo. 547, 36 Pac. 548; Converse v. Brown, 200 111. 166, 65 N. E. 644; 
 Dunbar v. Green, 66 Kan. 557, 72 Pac. 243 (delay of twenty-one 
 years); Snow v. Mfg. Co., 158 Mass. 325, 33 N. E. 588 (delay of 
 one year in suing to set aside sale of corporate property to directors, 
 during which time property had been sold to others) ; Berkey v. St. 
 Paul Nat. Bank, 54 Minn. 448, 56 N. W. 53 (plaintiff barred by delay 
 of seven years although purchaser had constructive- notice) ; North 
 V. Platte County, 29 Neb. 447, 26 Am. St. Rep. 395, 45 N. W. 692 
 (delay of nine years); Commonwealth v. Reading Traction Co., 204 
 Pa. 151, 53 Atl. 755. 
 
 65 In the following cases, the death of witnesses, coupled with de- 
 lay by complainant, was held sufiicient to bar relief: Foster v. Mans- 
 field etc. Co., 146 U. S. 88, 13 Sup. Ct. 28, 36 L. ed. 899; Hinfhman 
 V. Kelley, 54 Fed. 63, 4 C. C. A. 189, 7 U. S. App. 481; Eiffert v. 
 Craps, 58 Fed. 470, 7 C. C. A. 319, 8 U. S. App. 436 (delay of forty 
 yea.rs) ; Socrates Quicksilver Mines v. Carr Realty Co., 64 C. C. A. 
 539, 130 Fed. 293 (delay of twenty-eight years); Rives v. Morris,
 
 45 INTRODUCTION. { 25 
 
 § 23. Defense of Laches Favored by United States Courts — 
 Increase in Value of the Property Fatal to Plaintiff's Claim. — 
 This fair degree of unanimity as to the theoretical basis 
 
 108 Ala. 527, 18 South. 743; Street v. Henry, 124 Ala. 153, 27 South. 
 411 (delay of twenty-six years); Evan v. Woodin (Idaho), 75 Pac. 
 261 (delay of five years); Thomas v. Van Meter, 164 111. 304, 45 N. E. 
 405 (delay of sixteen years); New York Life Ins. Co. v. Weaver's 
 Admr., 24 Ky. Law Eep. 1086, 70 S. W. 628; Eipple y. Kuehne (Md.), 
 60 Atl. 464 (delay of 'eight years after fraud, and almost a year 
 after death of party charged with fraud, and of attorney who Irans- 
 .ncted the business); Hadaway v. Hynson, 89 Md. 305, 43 Atl. 806; 
 Preston v. Horwitz, 85 Md. 164, 36 Atl. 710; Eamcs v. Manley, 121 
 Mich. 300, 80 N. W. 15; Baker v. Cunningham, 162 Mo. 134, 85 Am. 
 St. Eep. 490, 62 S. W. 445; McKechnie v. McKechnie, 39 N. Y. Supp. 
 402, 3 App. Div. 91; Taylor v. Slater, 21 E. I. 104, 41 Atl. 1001; 
 Garland's Admr. v. Garland's Admr. (Va.), 24 S. E. 505; Snipes v. 
 Kelleher, 31 Wash. 386, 72 Pac. 67. See, however, Ball v. Ball, 20 
 E. L 520, 40 Atl. 234; Young v. Young, 51 N. J. Eq. 491, 27 Atl. 627 
 (death of witnesses not sufficient when it causes no serious disad- 
 vantage); Holsberry v. Harris (W. Va.), 49 S. E. 404. 
 
 In the following cases witnesses became incapacitated during the 
 time of complainant's delay, and relief was denied: Whitney v. Fox, 
 166 U. S. 637, 17 Sup. Ct. 713, 41 L. ed. 1145 (defendant became 
 mentally impaired) ; Dispeau v. First Nat, Bank, 24 E. I. 508, 53 
 Atl. 868. 
 
 Illustrations of refusal of relief on account of the evidence be- 
 coming obscure are found in the following cases: In Doane v. Pres- 
 ton, 183 Mass. 569, 67 N. E. 867, a bill founded upon neglect of cor- 
 poration officers to act upon an offer to convey the right to manu- 
 facture patented machines was filed after a delay of six years. Re- 
 lief was refused because it would rquire an investigation of an al- 
 leged offer made six years before suit, as well as conduct and mo- 
 tives of parties, and of the state and condition at that time of a 
 branch of manufacture in which new inventions play an important 
 part. In Lutjen v. Lutjen (N. J. Eq.), 53 Atl. 625, the court says: 
 "Lapse of time alone is deemed by the authorities to be a suffi- 
 cient ground of estoppel in cases like the present, when the court 
 cannot feel confident of its ability to ascertain the truth now, as 
 well as it could when the subject for investigation was recent, and 
 before the memories of those who had knowledge of the material 
 facts have become faded and weakened by time. To constitute es- 
 toppel of this description, it is not essential that any actual loss of 
 testimony, through death or otherwise, or means of proof, or changed
 
 { 23 EQUITABLE REMEDIES. 46 
 
 of the doctrine is shaken by a series of decisions by the 
 supreme court of the United States, followed, of course, 
 by recent cases in the lower federal and the territorial 
 courts, and to a limited extent by state courts. The 
 decisive feature in these cases has been that the prop- 
 erty which is the subject-matter of the litigation has 
 greatly risen in value since the complainant's cause of 
 action accrued. The courts profess to find in the plain- 
 tiff's delay under such circumstances an element of in- 
 jury to the defendant, consisting, apparently, in the 
 latter's uncertainty whether suit will or will not be 
 brought ; and base the doctrine of laches not on the un- 
 fairness of the plaintiff's conduct, but rather on motives 
 of public policy against the disturbance of possessory 
 titles, however acquired. The "growing favor" with 
 which the defense is recognized by the federal courts 
 has not escaped judicial comment.^* 
 
 relations, to the prejudice of the other party, should have occurred. 
 But the estoppel arises because the court cannot, after so great a 
 lapse of time, rely upon the memory of witnesses to reproduce the 
 details that entered into the final excution of the instrument of set- 
 tlement. ' ' 
 
 In general, see the following cases, where the questions were con- 
 eidered: Abraham v. Ordway, 158 U. S. 416, 15 Sup. Ct. 894, 39 L. 
 ed. 1036; Lemoine v. Dunklin County, 51 Fed. 487, 2 C. C. A. 343, 
 10 U. S. App. 227 (affirming 46 Fed. 219); Wood v. Perkins, 64 Fed. 
 817; Jones v. Perkins, 76 Fed. 82; Anderson v. Northrop, 30 Fla. 
 612, 12 South. 318; Patterson v. Hewitt (N. Mex.), 66 Pac. 552, 55 
 L. R. A. 658; Lockwood v. White, 65 Vt. 466, 26 Atl. 639; Nelson 
 V. Triplett, 99 Va. 421, 39 S. E. 150; Jameson v. Bixey, 94 Va. 342, 
 64 Am. St. Rep. 726, 26 S, E. 861; Pethtel v. McCullough, 49 W. Va, 
 520, 39 S. E. 199; Seymour v. Alkire, 47 W. Va. 302, 34 S. E. 953. 
 
 66 As in Lasher v. McCreery, 66 Fed. 834, 840 (1895), by Jackson, 
 D. J., speaking from the vantage ground of over thirty years' ex- 
 perience as federal judge. "This is an equitable defense, and is 
 often resorted to when the party who seta it up has no defense in 
 law, and for this reason courts should be very cautious in applying 
 this doctrine to defeat a rightful owner of the land who, from 
 neglect, which may be the result of the want of proper information.
 
 47 INTKODUCTION. § 23 
 
 This view of the federal courts is well presented in 
 the following excerpts: "In cases of actual fraud, or 
 of want of knowledge of the facts, the law is very toler- 
 ant of delay; but where the circumstances of the case 
 negative this idea, and the transaction is sought to be 
 impeached only by reason of the confidential relations 
 between the parties, and the cestuis que trustoit have 
 ample notice of the facts, they ought not to wait and 
 make their action in setting aside the sale dependent 
 upon the question whether it is likely to prove a profit- 
 able speculation. As the question whether the sale 
 should be vacated or not depends upon the facts as they 
 existed at the time of the sale, so, in taking proceedings 
 to avoid such sale, the plaintiff should act upon his 
 information as to such facts, and not delay for the 
 purpose of ascertaining whether he is likely to be bene- 
 fited by a rise in the property, since that would practi- 
 cally amount to throwing upon the purchaser any losses 
 he might sustain by a fall, and denying him the benefit 
 of a possible rise."®' "No doctrine is so wholesome, 
 
 refrains from an assertion of his rights until the presumption of 
 abandonment arises from his course of conduct. I am aware of the 
 tendency in the courts of this day to recognize the defense with 
 growing favor as both meritorious and valid." 
 
 67 Hoyt V. Latham, 143 U. S. 553, 12 Sup. Ct. 568, 36 L. ed. 259. 
 See in general, as to change in value proving fatal to complainant 'a 
 case. Oil Co. v. Marbury, 91 U. S. 592, 23 L. ed. 331; Galliher v. 
 Cadwell, 145 U. S. 368, 12 Sup. Ct. 873, 36 L. ed. 738 (affirming 3 
 Wash. T. 501, 18 Pac. 68); Mclntire v. Pryor, 173 U. S. 38, 19 Sup. 
 Ct. 352, 43 L. ed. 606 (affirming 10 App. D. C. 432); Felix v. Patrick, 
 145 U. S. 317, 12 Slip. Ct. 862, 36 L. ed. 719 (affirming 36 Fed. 457); 
 Johnston v. Standard Min. Co., 148 U. S. 360, 13 Sup. Ct. 585, 37 L. 
 ed. 480; Patterson v. Hewitt, 195 U. S. 309, 25 Sup. Ct. 35, 49 L. e<l. 
 
 ; Sagadahoc Land Co. v. Ewing, 65 Fed. 702, 13 C. C. A. 83, 31 
 
 U. S. App. 102; Continental Nat. Bank v. Heilman, 81 Fed. 36 (af- 
 firmed 86 Fed. 514, 30 C. C. A. 232); Old Colony Trust Co. v. Dubuque 
 L. & T. Co., 89 Fed. 794; Kiuue v. Webb, 49 Fed. 512; Lemoine v. 
 DunkUn County, 51 Fed. 487, 2 C. C. A. 343, 10 U. S. App. 227 (ai-
 
 i 23 EQUITABLE EEMEDIES. 48 
 
 when wisely administered, as tliat of laches. It pre- 
 vents the resurrection of stale titles, and forbids the 
 spying out from the records of ancient and abandoned 
 rights. It requires of every owner that he take care of 
 his property, and of every claimant that he make known 
 his claims. It gives to the actual and longer possessor 
 security, and induces and justifies him in all efforts to 
 improve and make valuable the property he holds. It 
 is a doctrine received with favor, because its proper 
 application works out justice and equity, and often 
 bars the holder of a mere technical right, which he has 
 abandoned for years, from enforcing it when its en- 
 forcement will work large injury to many."*'^ "The 
 equitable rule that one who is negligent shall not have 
 relief, and the barring of proceedings after the lapse of 
 stated periods of time by statutory enactments, are 
 alike based upon public policy, as well as upon consid- 
 erations affecting only individual rights. It is to the 
 public interest that stability in the title to property 
 should exist, and that all uncertainties and disputes 
 as to the ownership of land should be speedily put 
 
 at rest Hence, there lies at the foundation 
 
 of the principle that the lapse of time will become 
 a defense to the title of the one in possession of prop- 
 firming 46 Fed. 219) ; Church of Jesus Christ v. Reorganized Church 
 etc., 70 Fed. 179, 17 C. C. A. 387, 36 U. S. App. 110; Curtis v. Lakin, 
 94 Fed. 251, 36 C. C. A. 222 (delay of two years only); Meyer v. 
 Johnson, 60 Ark. 50, 28 S. W. 797; Bateman v. Eeitler, 19 Colo. 547, 
 36 Pac. 548; Graff v. Portland Town & Mineral Co., 12 Colo. App. 
 106, 54 Pac. 854; Burke v. Backus, 51 Minn. 174, 53 N. W. 458; Pat- 
 terson V. Hewitt (N. Mex.), 66 Pac. 552, 55 L. E. A. 658 (eight years' 
 delay in enforcing resulting trust) ; afiirnied, 195 U. S. 309, 25 Sup. 
 Ct. 35; Loomis v. Rosenthal, 34 Or. 585, 57 Pac. 55; Bryant v. Groves, 
 42 W. Va 10, 24 S. E. 605; Melms v. Pabst Brewing Co., 93 Wis. 
 153, 57 Am. St. Eep. 899, €6 N. W. 518. 
 
 68 Naddo V. Bardon, 51 Fed. 493, 2 C. C. A. 335, 4 U. S. App. 642, 
 per Brewer, J.
 
 49 INTRODUCTION. ( 23 
 
 erty not only consideration for his personal rights and 
 equities, but also a recognition of the higher public in- 
 terests which can only be subserved by putting at rest, 
 as speedily as possible, all doubts and uncertainties 
 touching the title of realty, to which end it is the duty 
 of courts to discourage delays in the assertion of con- 
 flicting claims thereto."®' 
 
 69 St. Paul etc. R. Co. v. Sage, 49 Fed. 315, 326, 1 C. C. A. 256, 4 
 U. S. App. 160, per Shiras, J., reversing 32 Fed. 821, 44 Fed. 817. 
 See, also, Halstead v. Grinnan, 152 U. S. 412, 14 Sup. Ct. 641, 38 L. 
 ed. 495. 
 
 It appears to the writer far from easy to adjust the principle an- 
 nounced in these decisions, if worked out to its logical conclusion, 
 with those ordinary ideas of fair dealing whch usually guide the 
 chancellor's discretion. It practically amounts to saying, that if 
 the defendant's wrong has turned out to be an enormously profitable 
 one to him, that affords a reason, either alone or in connection with 
 other reasons, why he should be protected in the enjoyment of his 
 profit by a court of equity; and the greater the profit, the stronger 
 the protection. The fact that the plaintiff, in the exercise of ordin- 
 ary business prudence, has delayed until it has become apparent that 
 his success in the litigation will not be a fruitless victory is, in this 
 view, conduct more inequitable than any of which the defendant 
 can possibly have been guilty, and excuses the court from investiga- 
 tion of the defendant's wrong. The delay may be far less than that 
 allowed by the most stringent statute of limitations; and the cir- 
 cumstance which most strongly operates upon the conscience of the 
 court — viz., the rise in value of the property — is a purely accidental 
 one, unconnected with any fault of the plaintiff or merit of the de- 
 fendant. The motives of public policy and the repose of society by 
 which this favoritism shown to the defense of laches has been justi- 
 fied seem rather appropriate for the consideration of a legislature 
 than of a court, and hardly warrant the court's overruling a legisla- 
 tive policy already expressed in statutes of limitation. 
 
 Laches from Long Delay Alone. — For the sake of completeness, it 
 should be noticed that in a considerable number of cases no element 
 of laches save the long delay alone is mentioned by the court; but 
 it is not impossible that some of the additional elements heretofore 
 described may have existed to influence these decisions. See, for 
 examples, De Martin v. Phelan, 51 Fed. 8^, 2 C. C. A. 523, 7 U. S. 
 App. 233, affirming 47 Fed. 761 (action to declare deed a mortgage) ; 
 Reed v. Dingess, 56 Fed. 171 (bill to redeem); Streight v. Junk, 59 
 Equitable Remedies, Vol. I — 4
 
 § 24 "EQUITABLE KEMEDIES. 50 
 
 § 24. Limitation of the General Doctrine in Case of In- 
 junction in Support of Strict Legal Right. — An important 
 limitation upon the general rule as to the effect of de- 
 lay has been established by a considerable preponder- 
 ance of authority. "Where an injunction is asked in 
 support of a strict legal right, the party is entitled to 
 it if his legal right is established; mere delay and ac- 
 quiescence will not, therefore, defeat the remedy unless 
 it has continued so long as to defeat the right itself."^*^ 
 This rule has had frequent application where injunc- 
 tion has been sought against the pollution^^ or diver- 
 sion^- of water; or against the infringement of a pat- 
 enf^ or a trade-mark."^* 
 
 Fed. 321, 8 C. C. A. 137, 16 U. S. App. 608 (delay of two years by 
 stockholder in suing to enforce the rights of a corporation against a 
 director); Kemp v. Nickerson, 66 Fed. 682; Halsey v. Cheney, 68 
 Fed. 763, 15 C. C. A. 656, 34 U. S. App. 50; Guarantee Trust & S. 
 D. Co. V. Delta & Pine Land Co., 104 Fed. 5, 43 C. C. A. 396 (delay 
 of twenty-five years, unexcused); Jones v. Perkins, 76 Fed. 82; 
 Tetrault v. Fournier (Mass.), 72 N. E. 350; Fennyery v. Eansom, 170 
 Mass. 303, 49 N. E. 620; Wiggin v. Swamscot Maeh. Co., 68 N. H, 14, 
 38 Atl. 727; Shields v. Tarleton, 48 W. Va. 343, 37 S. E. 589. 
 
 70 2 Pom. Eq. Jur., § 817. See, also, Galway v. Metropolitan Elev. 
 R. Co., 128 N. Y. 132, 28 N. E. 479, 13 L. E. A. 788, citing Pom. Eq. 
 ,Tur., § 817, and many cases (nuisance); Higgins Oil & Fuel Co. v. 
 Snow, 113 Fed. 433, 51 C. C. A. 267, and cases cited (in Texas, laches 
 not imputable to one whose title is capable of being established at 
 law). 
 
 71 Goldsmid v. Tunbridge Wells Imp. Commrs., L. R. 1 Eq. 161; 
 State of Missouri v. State of Illinois, 180 U. S. 208, 21 Sup. Ct. 
 331, 45 L. ed. 497; Chapman v. Rochester, 110 N. Y. 273, 6 Am. St. 
 Rep. 366, 18 N. E. 88, 1 L. R. A. 296. 
 
 72 Lonsdale Co. v. City of Woonsocket, 21 R. L 493, 44 Atl. 929 
 (sixteen years' delay); Rigney v. Tacoma L. & W. Co., 9 Wash. 576, 
 38 Pac. 147, 2G L. R. A. 425 (relying on Pom. Eq. Jur., § 817). 
 
 73 Taylor v. Sawyer Spindle Co., 75 Fed. 301, 304, 22 C. C. A. 203, 
 206, and cases cited; Ide v. Thorlicht etc. Carpet Co., 115 Fed. 137, 
 148, and cases cited. 
 
 74 Fullwood V. Fullwood, L. R. 9 Ch. Div. 176; Menendez v. Holt, 
 128 V. S. 514, 9 Sup. Ct. 143, 32 L. ed. 526. Compare Grand Lodge 
 A. O. U. W. V. Graham, 96 Iowa, 592, 65 N. W. 837, 31 L. R. A. 133.
 
 51 INTRODUCTION. S§ 25, 28 
 
 § 25. Whether Laches is Imputable to the Government. — 
 Laches is not imputable to the government of the 
 United States when it has a direct pecuniary interest 
 in the subject of the litigation.''' This rule is based 
 on public policy. Where, however, "the government 
 is a mere formal complainant in a suit, not for the pur- 
 pose of asserting any public right, or protecting any 
 public interest, title, or property, but merely to form 
 a conduit through which one private person can con- 
 duct litigation against another private person," laches 
 may be imputed.'^® It has been held that it is imputa- 
 ble to a state,^^ and also to a municipal corporation, 
 but the doctrine should be applied cautiously."^ ^ 
 
 § 26. Excuses for laches — (1) Party's Ignorance of His 
 Rights. — "A person cannot be deprived of his remedy in 
 equity on the ground of laches, unless it appears that 
 he had knowledge of his rights. As one cannot ac- 
 quiesce in the performance of an act of which he is ig- 
 norant, so one cannot be said to neglect the prosecution 
 
 75 San Pedro & Canon del Agua Co. v. United States, 146 U. S. 
 120, 13 Sup. Ct. 94, 36 L. ed. 912; United States v. State of Michigan, 
 190 U. S. 379, 23 Sup. Ct. 742, 47 L. ed. 1103; Southern Pac. E. Co. 
 V. Stanley, 49 Fed. 263; United States v, Dastervignes, 118 Fed. 199; 
 United States v. Willamette Val. & C. M. Wagon Boad Co., 54 Fed. 
 807. In this last case the court said: "It is held that laches is not 
 imputable to the government upon grounds of public policy. The 
 common-law rule that no lapse of time can bar the right of the 
 king is not only recognized in the United States, but is deemed to be 
 applicable with added reason, from the fact that here property is 
 held, not as by a monarch for personal or private purposes, but in 
 trust for the common welfare; and, where the agencies of the people 
 are so numerous and scattered, the utmost vigilance would not save 
 the public from loss." 
 
 76 United States v. Beebe, 127 U, S. 338, 8 Sup. Ct. 1083, 32 L. ed. 
 121; United States v. Chicago, M. & St. P. E. Co., 54 C. C. A. 545, 
 116 Fed. 969. 
 
 77 Attorney-General v. Central E. Co. (N. J. Eq.), 59 Atl. 348. 
 
 78 DunJ-Jis County v. Chouteau, 120 Mo. 577, 25 S. W. 553.
 
 i 26 EQUITABLE EEMEDIES. 8t 
 
 of a remedy when he has no knowledge that his rights 
 have been invaded, excepting, always, that his want of 
 knowledge is not the result of his own culpable negli- 
 gence. It is not a little difficult to determine what 
 knowledge is necessary to place the party in the posi- 
 tion of negligently delaying his action."'^* 
 
 79 Hall V. Otterson, 52 N. J, Eq. 522, 28 Ati. 907, per Green, V. C. 
 See, also, Hodge v. Palms, 68 Fed. 61, 15 C. C. A. 220, 37 U. S. App. 
 61; Kansas City Southern E. Co. v. Stevenson, 135 Fed. 553; Spalding 
 V. St. Joseph's Industrial School, 107 Ky. 382, 54 S. W. 200; Whit- 
 ridge V. Whitridge, 76 Md. 54, 24 Atl, 645 (delay of twelve years); 
 Moorman v. Arthur, 90 Va. 455, 18 S. E. 869; Jameson v. Eixey, 94 
 Va. 342, 64 Am. St. Eep. 726, 26 S. E. 861 (delay of twenty years); 
 Craufurd's Admr. v. Smith's Exr., 93 Va. 623, 23 S. E. 235, 25 S. E, 
 657. 
 
 Where there ia no fraud in the case, plaintiff's ignorance may be 
 no excuse after a great lapse of time. "The interests of public or- 
 der and tranquility demand that parties shall acquaint themselves 
 with their rights within a reasonable time, and, although this time 
 may be extended by their actual ignorance, or want of means, it ia 
 by no means illimitable": Wetzel v. Minn. Ey. Transfer Co., 169 U. 
 S. 237, 18 Sup. Ct. 307, 2 L. ed. 730 (affirming 65 Fed. 23, 12 C. C. 
 A. 490). The delay in this case was thirty years. Ignorance is not 
 an excuse when the plaintiff has notice of facts which should put 
 him on inquiry: Loomis v. Eosenthal, 34 Or. 585, 57 Pac. 55. It has 
 been held that one who knows that another is selling an article in 
 violation of contract cannot justify delay on the ground that he 
 did not have enough evidence, since he could bring suit and have 
 a discovery of details by means of interrogatories: Fowler v. Park, 
 48 Fed. 789. 
 
 See, also, post, at note 109. 
 
 Ignorance of Law — Though a party may be fully apprised of the 
 facts from which his equitable right arises, his ignorance of that 
 right has sometimes been held to excuse a long delay in its enforce- 
 ment: See Lasher v. McCreery, 66 Fed. 834, where the law was gener- 
 ally supposed to be settled adversely to the plaintiff during the 
 period of the plaintiff's inaction; Dinwiddle v. Self, 145 111. 290, 33 
 N. E. 892, where delay of twenty years in suing to reform a deed 
 for mistake of law was due to the advice of a reputable attorney 
 that the deed correctly expressed the grantor's intention. But see 
 Wetzel V. Minnesota Ey. Transfer Co., 65 Fed. 23, 12 C. C. A. 490, 
 27 U. S. App. 594; affirmed, 169 U. S. 237, 241, 18 Sup. Ct. 307, 42 
 L. ed. 730.
 
 53 INTRODUCTION. § 27 
 
 § 27. Igfnorance of Fraud. — ''The right of the party 
 defrauded is not affected by the lapse of time, or gener- 
 ally speaking, by anything done or omitted to be done, 
 so long as he remains, without any fault of his own, 
 in ignorance of the fraud that has been committed."^** 
 "\\ hat is culpable negligence on the part of the de- 
 frauded party in acquainting himself with the fraud 
 is incapable of exact definition. Such negligence- is not 
 imputed where the relation between the parties is one 
 of trust and confidence ;^^ and a considerable degree 
 of inaction is excused by active measures taken by the 
 fraudulent party for the concealment of the fraud.^^ 
 "The defense of want of knowledge on the part of one 
 charged with laches is one easily made, easy to prove 
 by his own oath, and hard to disprove; and hence the 
 tendency of courts in recent years has been to hold the 
 plaintiff to a rigid compliance with the law which de- 
 mands, not only that he should have been ignorant of 
 the fraud, but that he should have used reasonable dili- 
 
 80 Eolfe V. Gregory, 4 De Gex, J. & S. 576, per Lord Westbiiry; 2 
 Pom. Eq. Jur., § 917 and note. See, also, Alger v. Anderson, 78 Fed. 
 729; Wilson v. Augur, 176 111. 561, 52 N. E. 289; Butler v. Prentiss, 
 ]58 N. Y. 49, 52 N. E. 652 (reversing 36 N. Y. Supp. 301, 91 Hun, 
 643); Simpkins v. Taylor, 81 Hun, 467, 31 N. Y. Supp. 169. 
 
 81 Bitzeman v. Bitzeman, [1895] 2 Ch. 474 (no duty of Inquiry); 
 Eeavis v. Eeavis, 103 Fed. 813 (reliance upon a relative) ; Penn v. 
 Folger, 182 111. 76, 55 N. E. 192 (reversing 77 111. App. 365); Stan- 
 wood V. Wishard, 134 Fed. 959 (fraud of attorney; client a nonresi- 
 dent). 
 
 82 "The perpetrator of a fraud can hardly be permitted to suc- 
 cessfully plead in a court of equity that he so completely secured 
 and betrayed the confidence of his victim that the latter believed 
 his false statement that no inquiry or examination would avail him 
 aught so long that, when his faith faltered, it was too late for him 
 to recover": Kelley v. Boettcher, 85 Fed. 55, 62, 29 C. C. A. 14, 56 
 U. S. App. 363. See, also, Salsbury v. Ware, 183 111. 505, 56 N. E. 
 149 (reversing 80 111. App. 485). Compare Townsend v. "Vander- 
 werker, 160 U. S. 171, 16 Sup. Ct. 258, 40 L. ed. 383.
 
 § 27 EQUITABLE EEMEDIES. 54 
 
 gence to have informed himself of all the facts."^^ 
 Knowledge of facts which would put a person of ordi- 
 nary prudence and diligence on inquiry is, in the eves of 
 the law, equivalent to a knowledge of all the facts which 
 a reasonably diligent inquiry would disclose.^^ 
 
 83 Foster v. Mansfield C. & L. M. R. Co., 146 TJ. S. 88, 99, 13 Sup. 
 Ct. 28, 36 L. ed. 899, affirming 36 Fed. 627; Wetzel v. Minnesota Ry. 
 Tr. Co., 65 Fed. 23, 12 C. C A. 490, 27 U. S. App. 594, affirmed, 169 
 U. S. 237, 18 Sup. Ct. 309. See, also, Felix v. Patrick, 145 U. S. 317, 
 '36 L. ed. 719, 12 Sxip. Ct. 862 (affirming 36 Fed. 457); Eiffert v. 
 Craps, 58 Fed. 470, 7 C C. A. 319, 8 TJ. S. App. 436 (chargeable when 
 fraud might have been discovered by inspection of one recorded 
 deed); Scheftel v. Hays, 58 Fed. 457, 7 C. C. A. 308, 19 U. S. App. 
 220 (inquiry of the chief perpetrator of the fraud is not sufficient); 
 Lant V. Manley, 71 Fed. 7, 19 (fraud evidenced by a public record); 
 McMonagle v. McGlinn, 85 Fed. 88; Reynolds & Hamby etc. Co. v. 
 Martin, 116 Ga. 495, 42 S. E. 796; Fitch v. Miller, 200 111. 170, 65 
 N. E. 650; Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846; Cole v. 
 Boyd (Neb.), 93 N. W. 1003. The bill must show with particularity 
 how and when the plaintiffs' knowledge was obtained, in order that 
 the court may determine whether reasonable effort was made by him 
 to ascertain the facts: Hardt v. Heidweyer, 152 U. S. 547, 558, 14 Sup. 
 Ct. 671, 38 L. ed. 548 and cases cited; Stearns v. Page, 1 Story, 204 
 215, 217, Fed. Cas. No. 13,339, by Story, J.; Stearns v. Page, 7 Hov.-. 
 819, 829, 12 L. ed. 928, by Grier, J.; Badger v. Badger, 2 Wall. 87, 
 95, 17 L. ed. 836; Wood v. Carpenter, 101 U. S. 135, 140, 25 L. ed. 
 ?07; Bangs v. Loveridge, 60 Fed. 963 ("a party seeking to avoid 
 the bar of the statute on the ground of fraud must aver and show 
 that he used due diligence to detect the fraud, and if he had the 
 means of discovering it, he will be held in equity to have known 
 it"); Hubbard v. Manhattan Trust Co., 87 Fed. 51, 30 C. C. A. 520; 
 Cutter v. Iowa Water Co., 128 Fed. 505 ("there must be allegations 
 and evidence showing what he did to discover the fraud, and a 
 showing why he did not discover it"); Melms v. Pabst Brewing Co., 
 93 Wis. 153, 57 Am. St. Rep. 899, 66 N. W. 518. See, also, Felix v. 
 Patrick, 145 U. S. 317, 12 Sup. Ct. 862, 36 L. ed. 719 (affirming 3(» 
 Fed. 457). 
 
 84 Swift V. Smith, 79 Fed. 709, 713, 25 C. C. A. 154, 49 U. S. App. 
 188 (citing many cases); Melms v. Pabst Brewing Co., 93 Wis. 153, 
 174, 57 Am. St. Rep. 899, 66 N. W. 518, and cases cited; Johnston v. 
 Standard Min. Co., 148 U. S. 360, 13 Sup. Ct. 585, 37 L. ed. 480, af- 
 firming 39 Fed. 304 (plaintiff is "chargeable with such knowledge 
 as he might have obtained upon inquiry, provided the facts already
 
 ■ 55 INTRODUCTION. § 28 
 
 § 28. Breach of Express Continuing Trust. — In cases of 
 express continuing trusts, ''so long as the relation of 
 trustee and cestui que trust continues to exist,, no 
 length of time will bar the cestui que trust of his rights 
 in the subject of the trust as against the trustee, unless 
 circumstances exist to raise a presumption from lapse 
 of time of an extinguishment of the trust, or unless 
 there has been an open denial or repudiation of the 
 trust brought home to the knowledge of the cestui que 
 trust which requires him to act as upon an asserted 
 adverse title."^^ But where the repudiation or breach 
 of the trust has been brought home to the. actual knowl- 
 edge of the cestui que trust, the ordinary rules as to 
 laches apply : the same degree of diligence is required 
 of him as in cases of the rescission of a contract for 
 fraud or mistake.^® 
 
 known to him were such as to put upon a man of ordinary intelli- 
 {lence the duty of inquiry"); Edwards v. Mercantile Trust Co., 124 
 Fed, 381. See, also, Eugan v. Sabin, 53 Fed. 415, 418, 3 C. C. A. 578, 
 580, 10 U. S. App. 519, 530. 
 
 85 Anderson v. Northrop, 30 Fla. 612, 12 South. 318, 324, and cases 
 cited; Hoyt v. Latham, 143 U. S. 553, 12 Sup. Ct. 568, 36 L. ed. 259; 
 New Orleans v. Warner, 175 U. S. 120, 130, 20 Sup. Ct. 44, 44 L. ed. 
 96; Wood v. Perkins, 64 Fed. 817, 57 Fed. 258; Haney v. Legg, 129 
 Ala. 619, 87 Am. St. Kep. 81, 30 South. 34; Hovey v. Bradbury, 112 
 Cal. 620, 44 Pac. 1077 (delay of eight years not laches when no no- 
 tice of repudiation); White v. Costigan, 138 Cal. 564, 72 Pac. 178; 
 French v. Woodruff, 25 Colo. 339, 54 Pac. 1015; Stanley's Estate v. 
 Pence, 160 Ind. 636, 66 N. E. 51, 67 N. E. 441; Raymond v. Flavel, 
 27 Or. 219, 40 Pac. 158; Joy v. Ft. Worth Compress Co., 24 Tex. Civ. 
 App. 94, 58 S. W. 173. See, however, Preston v. Horwitz, 85 Md. 164, 
 36 Atl. 710, citing Maryland cases, contra. 
 
 86 In states where the statutes of limitations apply to equitable 
 actions, the rules as to the time when the statute begins to run are 
 generally analogous to those which apply to the running of time 
 considered as an element of laches. Consequently both classes of 
 cases may be cited as authority for the text: See Naddo v. Bardon, 
 51 Fed. 493, 2 C. C. A. 335, 4 U. S. App. 642, 681 (affirming 47 Fed. 
 782); Church of Christ v. Reorganized Church of Jesus Christ of
 
 § 28 EQUITABLE KEMEDIES. 56 
 
 Constructive and resulting trusts are also governed 
 by the ordinary rules as to laches ;^^ but in cases of 
 resulting trust, where the trustee constantly acknowl- 
 edges the right of the one in whose favor the trust is 
 raised by virtue of his payment of the purchase-money, 
 
 Latter-Day Saints, 70 Fed. 179, 17 C. C. A. 387, 36 XJ. S. App. 110; 
 Curtis V. Lakin, 94 Fed. 251, 36 C. C. A. 222; Nash v. Ingalls, 101 
 Fed. 645, 41 C. C. A. 545 (affirming 79 Fed. 510); Swift v. Smith, 79 
 Fed. 709, 714, 25 C. C. A. 154, 159, 49 U. S. App. 188; Hitchcock v. 
 Cosper (Ind.), 73 N. E. 264; Mantle v. Speculator Min. Co., 27 Mont. 
 473, 71 Pac. 665; Church v. Winton, 196 Pa. St. 107, 46 Atl. 363; 
 Snipes v. Kelleher, 31 Wash. 336, 72 Pac. 67. 
 
 87 The rules in this respect as to laches and the statute of limi- 
 tations are identical; cases of both kinds are therefore cited: See 
 Lemoine v. Dunklin County, 51 Fed. 487, 2 C. C. A. 343, 10 U. S. App. 
 227 (affirming 46 Fed. 219); McMonagle v. McGlinn, 85 Fed. 88; 
 Nouges V. Newlands, 118 Cal. 102, 50 Pac. 386; Schofield v. Wooley, 
 98 Ga. 548, 58 Am. St. Rep. 315, 25 S. E. 769; McLaflin v. Jones, 155 
 111. 539, 40 N. E. 330, affirming 55 111. App. 518 (delay of thirteen 
 years); Blackledge v. Blackledge (Iowa), 91 N. W. 818; Wilson v. 
 Louisville Trust Co., 102 Ky. 522, 44 S. W. 121; Patterson v. Hewitt 
 (N. Mex.), 66 Pac. 552, 55 L. E. A. 658; Southall v. Southall, 6 Tex. 
 Civ. App. 694, 26 S. W. 150; Eedford v. Clark, 100 Va. 115, 40 S. E. 
 630; Merton v. O'Brien, 117 Wis. 437, 94 N. W. 340; Boyd v. Mutual 
 Fire Assn., 116 Wis. 155, 96 Am. St. Rep. 948, 90 N. W. 1086, 61 L. 
 E. A. 918, 94 N. W. 171 (officers and directors of corporations are 
 not express trustees and are not precluded from setting up limitations). 
 In Landis v. Saxton, 105 Mo. 486, 24 Am. St. Eep. 406, 16 S. W. 912, 
 the rule is stated as follows: "The trusts against which the statute 
 will not run are those technical and continuing trusts which are not 
 at all cognizable at law, but fall within the proper, peculiar, and 
 exclusive jurisdiction of a court of equity; but other trusts which 
 are the ground of an action at law are open to the operation of the 
 statute." 
 
 The United States supreme court has drawn a distinction be- 
 tween cases involving actual fraud and cases of constructive fraud 
 merely — such as the purchase by the trustee of the trust property 
 for a price which was fair at the time of the transaction — holding 
 the cestui que trust to a more stringent obligation of diligence in the 
 latter class of cases: See Hammond v. Hopkins, 143 U. S. 224, 250, 
 12 Sup. Ct. 418, 36 L. ed. 134.
 
 57 INTKODUCTION. §§ 29-31 
 
 the trust is properly treated as express, so far as the 
 operation of the doctrine of laches is concerned.^* 
 
 § 29. Excuses: (2) Infancy. — Infancy is a defense for 
 delay both at law and in equity.^^ An infant, having 
 no capacity to sue, cannot be held blameworthy for de- 
 laying to sue. After becoming of age, however, he 
 must act promptly.^" Following the analogy of the 
 statute of limitations, it has been held that where time 
 has commenced to run against the ancestor, it still 
 continues to run against the minor heir.^^ 
 
 § 30. Excuses: (3) Mental Unsoundness. — Laches can- 
 not be imputed to one of unsound miud;^^ and this 
 rule holds, although the next friend who brings the suit 
 is clearly guilty of laches.^^ 
 
 § 31. Excuses: (4) Coverture. — Whether the common- 
 law rule that a married woman cannot be guilty of 
 laches®^ has been changed by the modern statutes per- 
 mitting a married woman to sue in her own name, is 
 a question on which there appears to be some disagree- 
 
 88 Fawcett v. Fawcett, 85 Wis. 332, 39 Am. St. Eep. 844, 55 N. W. 
 405; Haney v. Legg, 129 Ala. 619, 87 Am. St. Eep. 81, 30 South. 34. 
 
 89 Eobinson v. Kampmann, 5 Tex. Civ. App. 605, 24 S. W. 529; Cole 
 V. Grigsby (Tex. Civ. App.), 35 S. W. 680; Eobinett v. Eobinett's 
 Heirs (Va.), 19 S. E. 845; Melms v. Pabst Brewing Co., 93 Wis. 153, 
 57 Am. St. Eep. 899, 66 N. W. 518. 
 
 90 Melras V. Pabst Brewing Co., 93 Wis. 153, 57 Am. St. Eep. 899, 
 €6 N. W. 518. 
 
 91 Gibson v. Herriott, 55 Ark. 85, 29 Am. St. Eep. 17, 17 S. W. 539. 
 
 92 Van Buskirk v. Van Buskirk, 148 111. 9, 35 N. E. 383 (delay of 
 forty-two years); Kidder v. Houston (N. J. Eq.), 47 Atl, 336; Trow- 
 bridge V. Stone's Admr., 42 W. Va. 454, 26 S. E. 363. 
 
 93 Kidder v. Houston (N. J. Eq.), 47 Atl. 336 
 
 04 Gibson v. Herriott, 55 Ark. 85, 29 Am. St. Eep. 17, 17 S. W. 
 589; Lindell Eeal Estate Co. v. Lindell, 142 Mo. 61, 43 S. W. 368; 
 €ole V. Grigsby (Tex. Civ. App.), 35 S. W. 680.
 
 {§ 32,33 EQUITABLE EEMEDIES. 58 
 
 ment.^^ The marital relation may, so long as cohabi- 
 tation continues, afford the wife a partial or total ex- 
 cuse for delay in commencing litigation to which the 
 husband is a party defendant.^^ 
 
 § 32. (5) When Laches not Imputed to Reversioners. — 
 It is generally held "that no laches can be imputed to 
 reversioners in a contest between them and the tenant 
 for life over the reversionary property until after the 
 termination of the life estate, unless it be shown clearly 
 and unequivocally that before that time they had actual 
 knowledge of an abandonment by the life tenant of her 
 status as such, and of a holding of the property by her 
 under a different and adverse right."^^ And it is fur- 
 ther held "that the onus of showing such notice or 
 knowledge as, when coupled with long acquiescence, 
 Avould amount to laches, is on the party urging laches 
 as a defense."^^ 
 
 § 33. (6) When Party in Possession not Chargeable 
 with Laches. — A party in possession of land who resorts 
 
 85 Compare Lindell Eeal Estate Co. v. Lindell, 142 Mo. 61, 43 S. W, 
 368 (no laches), with Gibson v. Herriott, 55 Ark. 85, 29 Am. St. 
 Eep. 17, 17 S. W. 589 (guilty of laches with respect to her separate 
 property). See, also, Phillips v. Pinney Coal & Coke Co., 53 W. Va. 
 543, 97 Am. St. Eep. 1040, 44 S. E. 774, where a married woman was 
 held guilty of laches; McPeck's Heirs v. Graham's Heirs (W. Va.), 
 49 S. E. 125 (same); Waldron v. Harvey, 54 W. Va. 608, 102 Am. St. 
 Eep. 959, 46 S. E. 603 (laches cannot be imputed to a married woman 
 to defeat her right to land not her separate estate). 
 
 96 Fawcett v. Fawcett, 85 Wis. 332, 39 Am. St. Eep. 844, 55 N. W. 
 405; Conner v. Leach, 84 Md. 571, 36 Atl. 591. 
 
 97 Anderson v. Northrop, 30 Fla. 612, 12 South. 318, and cases 
 cited; Howell v. Jump, 140 Mo. 441, 41 S. "W. 976, And see Gibson 
 V. Herriott, 55 Ark. 85, 29 Am. St. Eep. 17, 17 S. W. 589. 
 
 98 Anderson v. Northrop, 30 Fla. 612, 12 South. 318, and cases 
 cited. "And it is for the party urging laches to show when his 
 adversary acquired a knowledge of the truth, and to prove that he 
 knowingly forebore to assert hifl right."
 
 59 INTRODUCTION. S 34 
 
 to a court of equity to settle a question of title is not 
 chargeable with laches, no matter how long his delay .®® 
 Such a party is at liberty to wait until his title is at- 
 tacked before he is obliged to act. The most frequent 
 illustrations of this principle are found in suits by 
 parties in possession to remove a cloud on title or to 
 quiet title. Where, however, statutes permit such suits 
 by parties out of possession, the doctrine of laches does 
 apply, if the plaintiff is not in possession.^"" 
 
 § 34. (7) Pendency of Another Suit as Excuse for Delay. 
 The pendency in the same or in another jurisdiction of 
 a suit relating to the subject-matter is generally re- 
 garded as an excuse for delay until its termination; 
 provided, however, this other suit is prosecuted with 
 due diligence. Such a condition may arise when the 
 
 99 Simmons Creek Coal Co. v. Doran, 142 U, S. 417, 12 Sup. Ct. 
 239, 35 L. ed. 1063 (delay of forty years); Thompson v. Dumas, 85 
 Fed. 517, 29 C. C. A, 312; Massenburg v. Denison, 71 Fed. 618, 18 
 C. C. A. 280, 30 U. S. App. 612; Gunnison Gas & Water Co. v. 
 Whitaker, 91 Fed. 191; Shaw v. Allen, 184 III. 77, 56 N. E. 403 
 (affirming 85 111. App. 23); Gordon v. Johnson, 186 111. 18, 57 N. E. 
 790 (reversing 79 111. App. 423); Brumback v. Brumback, 198 111. 
 66, 64 N. E. 740 (owner in common in possession cannot be precluded 
 by laches from asserting a right to partition or to assignment of 
 (lower); Sheldon v. Dunbar, 200 111. 490, 65 N. E. 1095 (delay of 
 eleven years in asserting right to specific performance not laches) ; 
 Hayes v. Carroll, 74 Minn. 134, 76 N. W. 1017 (delay of twenty-three 
 years). In Cook v. Lasher, 73 Fed. 701, 19 C. C. A. 654, 42 U. S. 
 App. 42, it was held that a delay of twenty-one years in suing to 
 annul a void tax deed to the state was not laches. It has been held 
 that "so long as a defendant can assert an equitable title with- 
 out invoking any affirmative relief," the doctrine of stale demand 
 does not apply: Hensel v. Kegans (Tex. Civ. App.), 28 S. W. 705. 
 In Jackson v. Boyd (Ark.), 87 S. W. 126, neither party was in pos- 
 session, and a delay of thirteen years was held not to be laches. 
 See, also. Weir v. Cordy-Fisher Lumber Co. (Mo.), 85 S. W. 341; Wal- 
 dron v. Harvey, 54 W. Va. 608, 102 Am. St. Eep. 959, 46 S. E. 603. 
 
 100 Sage V. Winona & St. P. E. Co., 58 Fed. 297, 7 C. 0. A. 237, 
 19 U. S. App. 1.
 
 I 35 EQUITABLE EEMEDIES. 60 
 
 complainant seeks the wrong jurisdiction or the wrong 
 remedy in the first instance; and it may also occur 
 when the decision in one case depends largely upon 
 that in another.^ °^ As already intimated, however, 
 the mere institution of a suit does not relieve a person 
 from the charge of laches. If he fails in the diligent 
 prosecution of the action the consequences are the same 
 as though no action had been begun.^"^ 
 
 § 35. (8) Miscellaneous Excuses. — As what amounts 
 to laches depends largely upon the circumstances of 
 each particular case, so, also, the excuses which may 
 be satisfactory to the court are many and various. A 
 few additional ones may here be mentioned. It has 
 been held that where the party interposing the defense 
 of laches has contributed to or caused the delay, he 
 cannot take advantage of it.^''^ Likewise, a constant 
 recognition of the right by all the parties has been held 
 a sufficient excuse. ^°^ In some instances, prompt ac- 
 tion looking toward the enforcement of the claim has 
 
 101 Thus, a failure to sue pending the decision of the federal 
 Land Department has been held not to be laches: Hodge v. Palms, 
 117 Fed. 396. Likewise, the pendency of one suit to test the va- 
 lidity of a patent has excused delay in bringing other suits: United 
 States Mitis Co. v. Detroit Steel & Spring Co., 122 Fed. 863. The 
 pendency of a suit in the federal court which has finally been dis- 
 missed for want of jurisdiction has excused delay in suing in a state 
 court: Russell v. Dayton Coal & Iron Co., 109 Tenn. 43, 70 S. W. 
 1. Delay in suing to set aside an agreement has been excused pend- 
 ing an unsuccessful suit for reformation: Russell v. Russsell, 129 
 Fed. 434. In general, see, also, McAfee v. Reynolds, 130 Ind. 33, 30 
 Am. St. Rep. 194, 28 N. E. 423. 
 
 102 Johnston v. Standard Min. Co., 148 U. S. 360, 13 Sup. Ct. 
 585, 37 L. ed. 480. 
 
 103 Richards v. Hatfield, 40 Neb. 879, 59 N. W. 777; Hellams v. 
 Prior, 64 S. C. 296, 42 S. E. 106 (delay due to defendant's requests 
 for time). 
 
 104 Riggs V. Polk, 3 Tex. Civ. App. 179, 21 S. W. 1013.
 
 61 INTRODUCTION. I 33 
 
 excused delay in suing.^*^^ It is sometimes said that 
 the same diligence is not required between members of 
 the same family as between strangers,^"* A few other 
 miscellaneous cases will be found in the note.^"'^ 
 
 It has been distinctly held that the plaintiff's poverty 
 is not a suflSicient excuse for laches ;^°^ but the reason as- 
 signed for this ruling is not so convincing as to pre- 
 clude the hope that it may sometimes be a circumstance 
 to be considered in his favor, at least in connection with 
 other disabilities or excuses. The mere fact that the 
 complainant resides in a remote region, and therefore 
 remains in ignorance of facts which are notorious at 
 the place where the property is situated, is not an ex- 
 
 105 Billings v. Aspen Min. & S. Co., 51 Fed. 338, 2 C. C. A. 252, 
 10 U. S. App. 1; Ulman v. Clark, 75 Fed. 868 (claimants not guilty 
 of laches "when they do everything that is necessary to protect 
 their rights, except the commencement of a legal action"); Dunning 
 V. Bates, 186 Mass. 123, 71 N. E. 309. 
 
 106 Hall V. Otterson, 52 N, J. Eq. 522, 28 Atl. 907. See, also, ante, 
 note 96. 
 
 107 Southern Pac. R. Co. v. Stanley, 49 Fed. 263; West Arlington 
 Imp. Co. V. Mt. Hope Retreat, 97 Md. 191, 54 Atl. 982 (plaintiff's 
 delay in suing to enjoin pollution of stream until convinced that 
 water was rendered unfit for use is not laches) ; Kinkead v. Ryan, 
 64 N. J. Eq. 454, 53 Atl. 1053 (failure of life tenant to insist upon 
 his rights against the remainderman while the latter is an infant 
 is not laches). 
 
 108 Leggett V. Standard Oil Co., 149 U. S. 287, 13 Sup. Ct. 902, 
 37 L. ed. 737; Hayward v. National Bank, 96 U. S. 611, 24 L. ed. 855; 
 Naddo V. Bardon, 51 Fed. 493, 2 C, C. A. 335, 4 U. S. App. 642 (af- 
 firming 47 Fed. 782); Wolf v. Great Falls etc. Co., 15 Mont. 49 38 
 Pac. 115; Patterson v. Hewitt (N. Mex.), 66 Pac. 552, 55 L. R. A. 
 658. In Naddo v. Bardon, supra, Brewer, J., says, with apparent 
 periousness: "It is to the glory of our profession in this country that 
 it is ever ready to champion the cause of the poor; and no man who 
 has a just claim, and makes an effort to assert it, will ever fail of 
 securing the needed professional assistance. The courts are always 
 open, and the lawyers are always willing and at hand; and if he 
 fails to establish his rights it is because he does not make an ef- 
 fort to assert them."
 
 § SQ EQUITABLE REMEDIES. 62 
 
 cuse.'^^ And the fact that the complainant delays 
 because he fears that action may interfere with his 
 employment or with contractual rights is not sufifl- 
 cient."<» 
 
 § 36. Pleading Excuses for laches. — "The party who 
 appeals to the conscience of the chancellor in support 
 of a claim, when there has been laches in prosecuting 
 it, or long acquiescence in the assertion of adverse 
 rights, should set forth in his bill, specifically, what 
 were the impediments to an earlier prosecution of his 
 claim, how he came to be so long ignorant of his rights, 
 and the means used by the respondents to fraudulently 
 keep him in ignorance ; and how and when he first came 
 to a knowledge of the matters alleged in his bill ; other- 
 wise the chancellor must refuse to consider his case, 
 on his own showing, without inquiring whether there 
 is a demurrer or formal plea of the statute of limita- 
 tions contained in the answer."^ ^^ 
 
 109 Broderick's Will, 21 Wall. 503, 22 L. ed. 599; Eudland v. Mas- 
 tie, 77 Fed. 688; Naddo v. Bardon, 51 Fed. 493, 2 C. C. A. 335, 4 
 U. S. App. 642 (affirming 47 Fed. 782). 
 
 110 Lane & Bodley Co. v. Locke, 150 U. S. 193, 14 Sup. Ct. 78, 
 37 L. ed. 1049 (fear of dismissal from employment is no excuse); 
 Thorn Wire Hedge Co. v. Washburn & Moen Mfg. Co., 159 U. S. 
 423, 16 Sup. Ct. 94, 40 L. ed. 205 (fear that litigation might imperil 
 receipt of future royalties under contract is no excuse). 
 
 111 Badger v. Badger, 2 Wall. 95, 17 L. ed. 836; Potts v. Alexander, 
 118 Fed. 885; Gibson v. Herriott, 55 Ark. 85, 29 Am. St. Rep. 17, 17 
 S. W. 589; Wetzel v. Minn. Ry. Transfer Co., 65 Fed. 23, 12 C. C. A. 
 490, 27 U. S. App. 594; Lant v. Manley, 71 Fed. 7; Wilcoxon v. Wil- 
 coxon, 199 111. 244, 65 N. E. 229. It is not necessary for the de- 
 fendant to set up laches. "To let in the defense that the claim is 
 stale, and that the bill cannot, therefore, be supported, it is not 
 necessary that a foundation shall be laid by any averment in the 
 answer of the defendants. If the case, as it appears at the hearing, 
 is liable to the objection by reason of the laches of the complain- 
 ants, the court will, upon that ground, be passive and refuse relief": 
 Sullivan v. Railroad Co., 94 U. S. 806, 24 L. ed, 324; Moore v. Nickley 
 (C. C. A.), 133 Fed. 289.
 
 «a LNTEHPLEADEB. I »7 
 
 CHAPTER II. 
 
 INTERPLEADER. 
 
 ANALYSIS. 
 
 J 37. Common-law interpleader. 
 
 § 38, Interpleader — General nature and object. 
 
 § 39. Rationale of the remedy. 
 
 § 40. Nature of the risk to which plaintiff is exposed. 
 
 § 41. At what stage interpleader may be brought. 
 
 § 42. The claims, legal or equitable. 
 
 § 43. Essential elements. 
 
 ii 44-46. First: The same thing, debt or duty. 
 
 § 45. Same; claims of different amounts. 
 
 § 46. Same; illustrations. 
 
 § 47. Second: Privity between the opposing claimants. 
 
 §§ 48-51. Third: Plaintiff a mere stake-holder. 
 
 § 49. Same; admission or waiver of plaintiff's claim; disputa 
 as to his liability. 
 
 § 50. Same; stake-holder must be plaintiff; fund must be in his 
 custody. 
 
 § 51. Same; plaintiff may have interest in the legal question. 
 
 {§ 52-57. Fourth: No independent liability to one claimant. 
 
 § 53. Same; independent liability arising from nature of orig- 
 inal relation. 
 
 § 54. Same; bailees and agents. 
 
 § 55. Same; tenant and landlord. 
 
 § 56. Same; parties, to contracts. 
 
 § 57. Same; by receiver; by master of a vessel; by sheriff. 
 
 § 58. Requisites of the bill of complaint. 
 
 § 59. Affidavit of non-collusion; payment into court; costs. 
 
 § 60. Bill in the nature of a bill of interpleader. 
 
 § 61. Interpleader in legal actions. 
 
 § 37. Common-law Interpleader. — "Under the ancient 
 common law, the relief of interpleader was allowed in 
 two special cases in a legal action by a court of law: 
 when two or more persons had made a joint bailment 
 and then brought separate actions of detinue against 
 the depositary for the thing bailed ; and when the thing
 
 8 S8 EQUITABLE EEMEDIES. 64 
 
 came into the holder's possession by finding, and two 
 or more persons claiming to be owners sued him in sep- 
 arate actions of detinue. Modern statutes, English 
 and American, have enabled courts of law to grant a 
 similar relief, in a summary manner, in certain legal 
 actions, but this legislation has no connection with the 
 ancient common-law jurisdiction above mentioned."^ 
 
 § 38. Interpleader — General Nature and Object — "I 
 purpose in this chapter to describe the general equitable 
 jurisdiction to grant the remedy of interpleader inde- 
 I>endent of statute; and afterwards to notice briefly the 
 modern statutes, some of which may perhaps have en- 
 larged that jurisdiction, but most of which have simply 
 conferred a similar jurisdiction upon courts of law, to 
 be exercised in certain kinds of legal actions. Where 
 two or more persons, whose titles are connected by 
 reason of one being derived from the other, or of both 
 being derived from a common source, claim the same 
 thing, debt, or duty by different or separate interests, 
 from a third person, and he, not knowing to which of 
 the claimants he ought of right to render the debt or 
 duty, or to deliver the thing, fears he may be hurt by 
 some of them, he may maintain a suit and obtain 
 against them the remedy of interpleader. In his bill 
 of complaint he must state his own rights and their 
 several claims, and pray that they may interplead, so 
 that the court may adjudge to whom the thing, debt, 
 or duty belongs, and he may be indemnified. If any 
 suits at law have been brought against him, he may 
 also pray that such proceedings be restrained until the 
 
 1 "For a more full account of this common-law relief, see Mit- 
 ford's Eq. PL, Jeremy's ed., 141, 142; Crawshay v. Thornton, 2 
 Mylne & C. 1": Pom. Eq. Jur., § 1320, note. As to interpleader in 
 common-law actions under the practice in Pennsylvania, see Brown- 
 field V. Canon, 25 Pa. St. 299; Pennypacker 's Appeal, 57 Pa. St. 114.
 
 €5 INTEEPLEADER. § 38 
 
 right be determined.^ The object of the suit is, that 
 the conflicting claimants shall litigate the matter 
 among themselves, without involving the stake-holder 
 in their controversy, with which he has no interest. It 
 is plain, therefore, that the plaintiff can obtain no 
 specifiG relief. So far as he is concerned, upon his 
 filing the bill, and surrendering up the thing or money 
 into the custody of the court, his remedy is exhausted 
 by the decree that the defendants do interplead with 
 each other, and that he be freed from or indemnified 
 
 2 This description is taken, with some additions and alterations, to 
 conform to later decisions, from Mitf ord 's Equity Pleading, 58, 59. 
 As to the general nature of the remedy, see Crawshay v. Thornton, 
 2 Mylne & C. 1; Sieveking v. Behrens, 2 Mylne & C. 581; Glyn v. 
 Ducsbury, 11 Sim. 139, 147; Langston v. Boylston, 2 Ves. 101, 103, 
 109; Jones v. Thomas, 2 Smale & G. 186; Prudential Assur. Co. v. 
 Thomas, L. R. 3 Ch. 74; Farley v. Blood, 30 N. H. 354; Lincoln v. 
 Rutland etc. R. R., 24 Vt. 639; Crane v. McDonald, 118 N. Y. 648, 23 
 N. E. 991; Bassett v. Leslie, 123 N. Y. 396, 25 N. E. 386; Dorn v. 
 Fox, 61 N. Y. 264; Shaw v. Coster, 8 Paige, 339, 35 Am. Dec. 690; 
 Mohawk etc. R. E. v. Clute, 4 Paige, 384; Bedell v. Hoffman, 2 
 Paige, 199; Badeau v. Rogers, 2 Paige, 209; Bell v. Hunt, 3 Barb. 
 Ch. 391; Richards v. Salter, 6 Johns. Ch. 445; Atkinson v. Manka, 
 1 Cow. 691; Cady v. Potter, 55 Barb. 463; Delaware, L. & W. R. Co. 
 V. Corwith, 5 N. Y. Supp. 792, 16 Civ. Proc. Rep. 312; Packard v. 
 Stevens, 58 N. J. Eq. 489, 46 Atl. 250; Wakeman v. Kingsland, 46 
 N. J. Eq. 113, 18 Atl. 680; Mount Holly etc. Tp. Co. v. Ferree, 17 
 N. J. Eq. 117; Coates v. Roberts, 4 Rawle (Pa.), 100; National Park 
 Bk. V. Lanahan, 60 Md. 477; Dickeshied v. Exchange Bank, 28 W. Va. 
 340; Strange v. Bell, 11 Ga. 103; Burton v. Black, 32 Ga. 53; Hayes v. 
 Johnson, 4 Ala. 267; Morris v. Cain's Exrs., 34 La. Ann. 657, 35 La. 
 Ann. 759; Michigan etc. Co. v. White, 44 Mich. 25, 5 N. W. 1086; Cogs- 
 well V. Armstrong, 77 111. 139; Hinckley v. Pfister, 83 Wis. 64, 53 N. 
 W. 21; Roselle v. Farmers' Bank, 119 Mo. 84, 24 S. W. 744; Hathaway 
 V. Foy, 40 Mo. 540; Orr Water Ditch Co. v. Larcombe, 14 Nev. 53; Pope 
 V. Ames, 20 Or. 199, 25 Pae. 393; North Pacific Lumber Co. v. Lang, 
 28 Or. 246, 52 Am. St. Rep. 780, 42 Pae. 799; Pfister v. Wade, 56 Cal. 
 43; McWhirter v. Halstead, 24 Fed. 828; Louisiana State Lottery 
 Co. V. Clark, 16 Fed, 20, 4 Woods, 169. 
 Equitable Remedies, Vol. 1—5
 
 § 39 EQUITABLE REMEDIES. 66 
 
 against their demands, and that he recover his costs; 
 with the result of their dispute he has no concern."^ 
 
 § 3&. Rationale of the Remedy. — "The ground of the 
 jurisdiction is plain. The party seeking the remedy is 
 exposed to the hazard, vexation and expense of several 
 actions at law for the same demand, while he is ready 
 and willing to satisfy that demand in favor of the claim- 
 ant who establishes his right thereto. For this liabil- 
 ity the law furnishes no adequate remedy, and in most 
 instances no remedy whatever."* "It is sometimes sup- 
 posed that the remedy of interpleader is allowed to 
 avoid the risk of two recoveries. This is entirely a 
 mistaken view. If a party has in any way made him- 
 
 8 Pom. Eq. Jur., § 1320. This section of Pom. Eq. Jur. is cited in 
 Crass V. Memphis & C. B. Co., 96 Ala. 447, 11 Soutli. 480. That 
 the decree of interpleader is interlocutory and does not determine 
 the validity of the claims in controversy, see Heald v. Rhind, 86 
 Md. 320, 38 Atl. 43; Owings v. Rhodes, 65 Md. 408, 9 Atl. 903, In 
 general, as to the practice upon a decree of interpleader see Penn 
 Mutual Life Ins. Co. v. Union Trust Co., 83 Fed. 891 (after inter- 
 pleader the parties occupy the position of plaintiff and defendant) ; 
 Willson V. Salmon, 45 N. J. Eq. 257, 17 Atl. 815; Lamon v. McKee, 
 18 D. C. (7 Mackey) 446, 479; State v. Kumpff, 62 Mo. App. 332 
 (result of decree upon plaintiff's rights); McMurray v. Sisters of 
 Charity, 68 N. J. L. 312, 53 Atl. 389. 
 
 That an ordinary interpleader suit is not an action in rem so as 
 to dispense with personal service of process, see Cross v. Armstrong, 
 44 Ohio St. 613, 10 N. E. 160; Gary v. Northwestern M. A. Assn. 
 (Iowa), 50 N. W. 27; Washington Life Ins. Co. v. Gooding, 19 Tex. 
 Civ. App. 490, 49 S. W. 123; Expressman's Mut. Benef. Assn. v. Hur- 
 lock, 91 Md. 585, 80 Am. St. Rep. 470, 46 Atl. 957. 
 
 In addition to the summary remedy by motion in a legal action, 
 the statutes of some states contain provisions relating to the action 
 of interpleader: See National Sav. Bank v. Cable, 73 Conn. 568, 48 
 Atl. 428 (Pub. Acts of Conn., 1893, c. 42); Barnes v. Bamberger, 196 
 Pa. St. 123, 46 Atl. 303 (act of June 13, 1836); Mosher v. Bruhn, 
 15 Wash. 332, 46 Pac. 397 (2 Hill's Code, Wash., § 153); City of 
 Atlanta v. McDaniel, 96 Ga. 190, 22 S. E. 896 (Georgia Code, § 3234). 
 
 4 Pom. Eq. Jur., § 1320, end. Quoted in Atkinson v. Carter, 101 
 Mo. App. 477, 74 S. W. 502,
 
 67 INTERPLEADER. S 40 
 
 self liable, even for the same demand, to two claim- 
 ants, he is not entitled to an interpleader. It is the 
 essential fact that he should actually be liable to only 
 one of the claimants. The true rationale of inter- 
 pleader is, that the party thereby avoids the risk of 
 being vexed by two or more suits. Even though there 
 is no danger of his being compelled to pay the same de- 
 mand twice, the danger of two suits against him, with 
 the consequent trouble and expense, is the sufficient 
 ground for the remedy.^ The supreme object of an in- 
 terpleader is to protect the plaintiff, — the stake-holder, 
 — and not the claimants against him; to protect him 
 from the danger and vexation of two opposing suits 
 for the same demand by those claimants, while he is 
 ready and willing to pay the demand to the one who is 
 judicially ascertained to be entitled to it."^ 
 
 § 40. Nature of the Risk to Which Plaintiff is Exposed. 
 The danger of a double vexation must be real; a mere 
 
 5 Pom. Eq. Jur., § 1320, note; Crawford v. Fisher, 1 Hare, 436, 441; 
 East and West India Dock Co. v. Littledale, 7 Hare, 57, 60; Langston 
 V. Boylston, 2 Ves. 101; Sablicieh v. Russell, L. R. 2 Eq. 441; Greene 
 V, Mumford, 4 R. I. 313; School District v. Weston, 31 Mich. 85; 
 Pfister V. Wade, 56 Cal. 43; Hechmer v. Gilligan, 28 W. Va. 750, 757; 
 Livingstone v. Bank of Montreal, 50 111. App. 562; Yarborough v. 
 Thompson, 3 Smedes & M. (Miss.) 291, 41 Am. Dec. 626. In Craw- 
 ford V. Fisher, Wigram, V. C, said: "The office of an interpleading 
 suit is, not to protect a party against a dotiMe liahility, but against 
 double vexation in respect of one liability. If the circumstances of 
 a case show that the plaintiff is liable to both claimants, that is no 
 ease for interpleader. It is of the essence of an interpleading suit 
 that the plaintiff shall be liable to one only of the claimants; and the 
 relief which the court affords him is against the vexation of two 
 proceedings on a matter which may be settled in a single suit." 
 
 6 Pom. Eq. Jur., § 1320, note; Trigg v. Hitz, 17 Abb. Pr. 436; 
 Farley v. Blood, 30 N". H. 354; Michigan etc. Co. v. White, 44 Mich. 
 25, 5 N. W. 1086; Newhall v. Kastens, 70 111. 156; Nelson v. Barter, 
 2 Hem. & M. 334, 33 L. J. Ch. 705, 10 Jur., N. S., 832.
 
 § 40 EQUITABLE EEMEDIES. 68 
 
 suspicion of risk will not be sufficient to support a billJ 
 It is settled, by a long series of cases in New York, that 
 it is not enough for the party seeking interpleader to 
 show that a claim has been presented against a fund 
 already claimed by another, but he must prove that such 
 claim is plausible, and has some reasonable foundation, 
 so that he cannot, without hazard, determine to which 
 of the claimants he should pay the fund.^ The plain- 
 
 7 Pom. Eq. Jur., § 1320, note; Blair v. Porter, 13 N, J. Eq. 267; 
 Baltimore and Ohio R. R. Co. v. Arthur, 90 N. Y. 234; Partlow v. 
 Moore, 184 111. 119, 56 N. E. 317, affirming Moore v. Partlow, 84 111. 
 App. 119; Fitch v. Brower, 42 N. J. Eq. 300, 11 Atl. 330 (reasonable 
 doubt arises from the claim) ; National Bank of Augusta v. Augusta 
 etc. Co., 99 Ga. 286, 25 S. E. 686 (claims should be sufficiently set 
 forth to enable the court to determine whether it is doubtful or 
 dangerous for plaintiff to act). 
 
 8 Dom V. Fox, 61 N. Y. 264; Crane v. McDonald, 118 N. Y. 648; 
 Pustet V. Flannelly, 60 How. Pr. 67; Nassau Bank v. Yandes, *44 
 Hun, 55; Pratt v, Myers, 63 Hun, 634, 28 Abb. N. C. 460, 18 N. Y. 
 Supp. 466; Mars v. Albany Savings Bank, 64 Hun, 429, 19 N. Y. 
 Supp. 791, affirmed 69 Hun, 398, 23 N. Y. Supp. 658; Stevenson v. 
 New York L. I. Co., 10 App. Div. 233, 41 N. Y. Supp. 964; Lennon 
 V. Metropolitan L. I. Co., 20 Misc. Eep. 403, 45 N. Y. Supp. 1033; 
 Roberts v. Van Home, 21 App. Div. 369, 47 N. Y. Supp. 448; Cosgriff 
 V. Hudson City Sav. Inst., 24 Misc. Rep. 4, 52 N. Y. Supp. 189; Sexton 
 V. Home Fire Ins. Co., 35 App. Div, 170, 54 N. Y. Supp. 862; South- 
 wark Nat. Bank v. Childs, 39 App. Div. 560, 57 N. Y. Supp. 789; 
 Wells V. National City Bank, 40 App. Div. 498, 29 Civ. Proc. Rep. 
 158, 58 N. Y. Supp. 125; Post v. Emmett, 40 App. Div. 477, 58 N. Y. 
 Supp. 129; Kreiser v. City of New York, 46 App. Div. 16, 61 N. Y. 
 Supp. 329; Merchant v. Northwestern M. L. I. Co., 57 App. Div. 375, 
 68 N. Y. Supp. 406. Many of these cases concerned the showing re- 
 quired to be made by affidavits in the statutory interpleader by mo- 
 tion in an action at law; but it has been repeatedly held that there 
 is no difference between the rule in statutory interpleader and that 
 in interpleader by suit. The moving party is merely required to 
 show that the claim interposed renders his position hazardous to the 
 extent of creating a reasonable doubt; he need not show that the 
 claim would probably be successful: Burritt v. Press Pub. Co., 19 
 App. Div. 609, 46 N. Y. Supp. 295; Dreyfus v. Casey, 52 Hun, 95, 5 
 N. Y. Supp. 65; and his affidavit need not allege that he himself 
 is in doubt as to who has the just claim, if it gives facts which
 
 69 INTEEPLEADER. S *1 
 
 tiff's risk may depend upon a doubtful and disputed 
 question of law, instead of a question of fact. "So long 
 as a principle is still under discussion .... it 
 would seem fair to hold that there was sufficient doubt 
 and hazard to justify the protection which is afforded 
 by the beneficent action of interpleader."* 
 
 § 41. At What Stage Interpleader may be Brought. — 
 "Such being the theory of the remedy, it is not essen- 
 tial that any suit should have been actually commenced 
 by either claimant against the plaintiffs.^*^ It is enough 
 that the conflicting claimants make their respective 
 claims and threaten suit.^^ The plaintiff must, how- 
 ever, positively allege an actual claim made by each de- 
 fendant."^^ It is held that the plaintiff cannot inter- 
 plead claimants who have reduced their claims to judg- 
 ment, as this would be to increase instead of diminish 
 
 may raise a reasonable doubt in the mind of the court: Sehell v. 
 Lowe, 75 Hun, 43, 23 Civ. Proc. Rep. 300, 26 N. Y. Supp. 991. The 
 rule, as applied in statutory interpleader by motion in a pending ac- 
 tion, is designed for the protection of the plaintiff in that action, 
 and cannot be invoked by the adverse claimant; it is the latter's 
 duty either to take position squarely with respect to the nature of 
 his claim or to withdraw the same: Butler v. Atlantic Trust Co., 28 
 Misc. Rep. 42, 59 N. Y. Supp. 814. 
 
 9 Dorn V. Fox, 61 N. Y. 270; Crane v. McDonald, 113 N. Y. 648, 
 654, 23 N. E, 991; Sovereign Camp, Woodmen of the World v. Wood, 
 100 Mo. App. 655, 75 S. W. 377. 
 
 10 Angell V. Hadden, 15 Ves. 244; Morgan v. Marsack, 2 Mer. 107; 
 Farley v. Blood, 30 N. H. 354; Richards v. Salter, 6 Johns. Ch. 445; 
 Yates V. Tisdale, 3 Edw. Ch. 71; Schuyler v. Pelissier, 3 Edw. Ch. 
 19]; Strange v. Bell, 11 Ga. 103; Gibson v. Goldthwaite, 7 Ala. 281, 
 42 Am. Dec. 592; Pom. Eq. Jur., § 1320, note. 
 
 11 Langston v. Boylston, 2 Ves. 101; Providence Bank v. Wilkinson, 
 4 R. I. 507, 70 Am. Dec. 160; Briant v. Reed, 14 N. J. Eq. 271; Yar- 
 borough V Thompson, 3 Smedes & M. (Miss.) 291, 41 Am. Dec. 626; 
 Pom. Eq. Jur., § 1320, note. 
 
 12 State Ta.3 Co. v. Gennett, 2 Tenn. Ch. 82; Pom. Eq. Jur., ( 
 1320, naU,
 
 S 42 EQUITABLE EEMEDIES. 70 
 
 the number of suits, and because of the familiar rule 
 that a court of equity cannot give relief when the party 
 might have made defense at law.^^ 
 
 § 42. The Claims, Legal or Equitahle. — "The equitable 
 jurisdiction exists, although both or all the conflicting 
 claims against the stake-holder are legal,^* since it de- 
 pends upon the fact that distinct claims are made, 
 rather than upon their intrinsic nature as being legal 
 or equitable. It is not necessary, however, that all the 
 claims should be legal ; the remedy is granted when one 
 of them is legal and the other equitable.^ ^ Indeed, if 
 
 13 Yarborough v. Thompson, supra; McKinney v. Kuhn, 59 Miss. 
 186. See, also, Larabrie v. Brown, 26 L. J. Kep., Eq., N. S., 605; 
 Bank v. Kerr, 2 Md. Ch. 460; Hichmer v. Gilligan, 28 W. Va. 
 757; Wabash R. Co. v. Flannigan, 95 Mo. App. 477, 75 S, W. 691. 
 In Yarborough v. Thompson it was said: "There is no evidence that 
 anything unconscientious was done by either of the defendants in 
 this case, in obtaining their judgments. Each proceeded upon a legal 
 claim. The complainant defended each, but for some cause was un- 
 successful in both. One of the judgments is no doubt wrong; but, 
 from the bill, the error was induced by the complainant's answer to 
 
 the garnishment If a case of fraud or surprise in obtaining 
 
 either of the judgments were made out against either of the parties, 
 that might entitle the complainant to relief against such party; but 
 that would be done upon an original bill, not a bill of interpleader." 
 
 14 Lowndes v. Cornford, 18 Ves. 299. 
 
 15 Quoted in Atkinson v. Carter, 101 Mo. App. 477, 74 S. W. 502. 
 See, also, Lowndes v. Cornford, supra; Morgan v. Marsack, 2 Mer. 
 107; Wright v. Ward, 4 Russ. 215; Paris v. Gilham, Coop. 56; Mar- 
 tinius V. Helrauth, 2 Ves. & B. 412; Smith v. Hammond, 6 Sim. 10; 
 Crawford v. Fisher, 10 Sim. 479; Hamilton v. Marks, 5 De Gex & 
 S. 638; Prudential Assur. Co. v. Thomas, L. R. 3 Ch. 74; Duke of 
 Bolton V. Williams, 4 Brown Ch. 297, 309; Farley v. Blood, 30 N. H. 
 354; Fairbanks v. Belknap, 135 Mass. 179; Richards v. Salter, 6 
 Johns. Ch. 445; Yates v. Tisdale, 3 Edw. Ch. 71; Schuyler v. Pelissier, 
 3 Edw. Ch. 191; Lozier's Exrs. v. Van Saun's Admrs., 3 N. J. Eq. 
 325; Ireland v. Kelly, 60 N. J. Eq. 308, 47 Atl. 51; Oil Run Petroleum 
 Co. V. Gale, 6 W. Va. 525; Strange v. Bell, 11 Ga. 103; Burton v. 
 Black, 32 Ga. 53; Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 
 592; Whitney v. Cowan, 55 Miss. 626, 647; Newhall v. Kastens, 70
 
 71 INTERPLEADEE. S 43 
 
 one or more of the conflicting claims are purely equita- 
 ble, there is the stronger reason for a resort to the equity 
 jurisdiction ; and prior to recent legislation in England 
 and in the United States, such a resort was indispensa- 
 ble under those circumstances."^* 
 
 § 43. Essential Elements. — "From the description 
 given in a previous paragraph, and from the whole 
 course of authorities, it is clear that the equitable rem- 
 edy of interpleader, independent of recent statutory 
 regulations, depends upon and requires the existence 
 of the four following elements, which may be regarded 
 as its essential conditions : 1. The same thing, debt, or 
 duty must be claimed by both or all the parties against 
 whom the relief is demanded; 2. All their adverse 
 titles or claims must be dependent, or be derived from 
 a common source; 3. The person asking the relief — the 
 plaintiff — must not have nor claim any interest in the 
 subject-matter; 4. He must have incurred no independ- 
 
 IlL 156; People's Sav. Bank v. Look, 95 Mich. 7, 54 N. W. 629. In 
 England the necessity of a resort to equity is removed, although the 
 equity jurisdiction is not at all affected, by the statute of 1 & 2 Wm. 
 TV, c. 58, § 1, as amended and enlarged by the common-law procedure 
 act (23 & 24 Vict., c. 126, § 12), which enabled a court of law, on 
 motion, to direct what amounts to an interpleader in actions of 
 debt, assumpsit, trover and detinue. Under the present system of 
 procedure, equitable claims may be adjudicated upon in an inter- 
 pleader issue connected with a legal action: Rusden v. Pope, L. K. 
 3 Ex. 269; Engleback v. Nixon, L. E. 10 Com. P. 645; Duncan v. 
 Cashin, L. R. 10 Com. P. 554; Attenborough v. London and St. 
 Katherine's Dock Co., L. R. 3 C. P. D. 450; see Langton v. Horton, 3 
 Beav. 464. Analogous statutes have been passed in many American 
 states, post, § 61. For illustrations of relief against equitable claims 
 in interpleader proceedings under these statutes, see Underwood v. 
 Boston etc. Bank, 141 Mass. 305, 4 N. E. 822; Dixon v. National 
 L. L Co., 168 Mass. 48, 46 N. E. 430; Brierly v. Equitable Aid Union, 
 170 Mass. 218, 64 Am. St. Rep. 297, 48 N. E. 1090; Windecker v. 
 Mut. L. Ins. Co., 12 App. Div. (N. Y.) 73, 43 N. Y. Supp. 353. 
 16 Pom. Eq. Jur., § 1321.
 
 § 44 EQUITABLE EEMEDIES. 72 
 
 ent liability to either of the claimants ; that is, he must 
 stand perfectly indifferent between them, in the posi- 
 tion merely of a stake-holder. As the original equitable 
 jurisdiction is founded, to a great extent, upon these 
 four propositions, I shall examine them separately."^^ 
 
 § 44. First: The Same Thing, Debt, or Duty.— "The same 
 thing, debt, or duty must be claimed by both the parties 
 against whom the interpleader is demanded.^ ^ This 
 requisite results from the very nature and object of the 
 remedy. If the subject in dispute has a bodily exist- 
 ence, — is a thing, — there can be no doubt nor question 
 as to the identity. The difficulty in applying the rule 
 arises where the subject is a chose in action; and then 
 the identity must be determined in each particular case, 
 not by any general rules, but by the nature, constitu- 
 
 17 Pom. Eq. Jur., § 1322. This analysis was quoted and approved 
 in Wells, Fargo & Co. v. Miner, 25 Fed. 533, 537, by Sawyer, J.; in 
 Morrill v. Manhattan Life Ins. Co., 82 111. App. 410, affirmed and 
 opinion adopted 183 111. 260, 55 N. E. 656; in Kile v. Goodrum, 87 
 m App. 462; in Platte Valley State Bank v. National Livestock 
 Bank, 54 111. App, 483, affirmed and opinion adopted, 155 111. 250, 40 
 N. E. 621; in Newman v. Commercial Nat. Bank, 156 111. 530, 41 
 N. E. 156 (affirming 55 111. App. 534); in Northwestern Mut. Life 
 Ins. Co. V. Kidder, 162 Ind. 382, 70 N. E. 489; and other cases; and 
 cited in Northwestern Mut. Life Ins. Co. v. Kidder (Ind. App.), 69 
 N. E. 204. 
 
 18 Desborough v. Harris, 5 De Gex, M. & G. 439, 455. See, also, 
 Standley v. Eoberts, 59 Fed. 836, 19 TJ. &. App. 407, 8 C. C. A. 305; 
 Eyan v. Lamson, 44 111. App. 204, affirmed in 153 111. 520, 39 N. E. 
 !:'79; Taylor v. Satterthwaite, 22 N. Y. Supp. 187, 2 Misc. Eep. 441; 
 Heyman v. Smadbeck, 27 N. Y. Supp. 141, 6 Misc. Eep. 527; Travelers' 
 Insurance Co, v. Healey, 86 Hun, 524, 33 N. Y. Supp. 911; Dn Bois 
 \. Union Dime Sav, Inst., 89 Hun, 382, 35 N. Y. Supp. 397, 25 Civ. 
 Proc. E. 288, 2 N. Y. Ann, Cas, 221; Freda v. Montauk Co., 55 N. Y. 
 Snpp. 748, 26 Misc. Eep. 199; Johnston v. Oliver, 51 Ohio St. 6, 36 
 N. E. 453; and additional cases cited in the notes to this and the 
 following paragraphs.
 
 73 INTERPLEADER. § 45 
 
 tion, and incidents of the debt, demand, or duty it- 
 self."i» 
 
 § 45. Same; Claims of Different Amounts. — "In Glyn v. 
 Duesbury, 11 Sim. 139, 148, Shadwell, V. C, said: 
 *Wliere the claims made hy the defendants are of differ- 
 ent amounts, they can never he identical; but where 
 they are the same in amount, that circumstance goes 
 far to determine their identity. The amount, however, 
 may not be sufficient of itself to determine the identity ; 
 for the amount may be the same and the debt may be 
 different.' This dictum was approved in Pfister v. 
 Wade, 56 Cal. 43. In my opinion, however, that por- 
 tion of the dictum which is italicized — the statement 
 that claims of different amounts can never be identical 
 — is incorrect; it seems alike opposed to principle and 
 to authority. Where both defendants claim one, sin- 
 gle, undivided deht, technically so called, the statement 
 is undoubtedly true; a difference in their amounts 
 would be fatal to their identity. But it is clearly not 
 necessarily so where the claims are for unliquidated 
 damages. Where, for example, a chattel is in the plain- 
 tiff's hands, to which both defendants claim title, they 
 do not sue to recover the article itself, but allege a tech- 
 nical conversion, and seek to recover damages — the 
 value of the chattel. Here the claim of the defendants 
 would not be for a 'thing,' nor for a 'debt,' but it would 
 be for a 'duty' — a chose in action. If each defendant 
 alleged a different value, and claimed a different 
 
 19 Pom. Eq. Jur,, § 1323, This section of Pom. Eq. Jur. is cited 
 in Northwestern Mut. Life Ins. Co. v. Kidder, 1G2 Ind. 382, 70 N. E. 
 489. See City Bank v. Bangs, 2 Paige, 570; Briant v. Reed, 14 N. J. 
 Eq. 271; Dodd v. Bellows, 29 N. J. Eq. 127; Leddel's Exr. v. Starr, 
 20 N. J. Eq. 274; Salisbury Mills v. Townsend, 109 Mass. 115; Oil 
 Run Petroleum Co. v. Gale, 6 W. Va. 525; Pfister v. Wade, 56 Cal 
 43; Blue v. Watson, 59 Miss. 619,
 
 § 45 EQUITABLE EEMEDIES. 74 
 
 amount of damages, the duty asserted would still be 
 identically the same in each demand.^*^ Another in- 
 stance of difference in the amounts claimed by the 
 different defendants, where the debt or duty may 
 still be the same, occurs in cases where a fund be- 
 ing in plaintiff's hands, the whole of it is claimed by 
 one defendant, and parts of it are claimed by the others. 
 With regard to such cases, Christiancy, J., said, in 
 School District v. Weston, 31 Mich. 85 : 'Upon the great 
 weight of authority, both English and American, a 
 much more liberal and reasonable rule has been estab- 
 lished, and bills of interpleader have been frequently 
 maintained, where the several claimants, instead of 
 claiming the whole fund or matter in dispute, have 
 claimed different portions of the fund, when the aggre- 
 gate of all the claims exceeded the full amount of the 
 fund ; and the complainant being, as in the present case, 
 virtually a stake-holder, and unable to determine to 
 whom or in what proportions the payments should be 
 made.' In this case the plaintiff had let a contract 
 for building a school-house for a specified sum to a con- 
 tractor, and portions of this contract price were claimed 
 by subcontractors and material-men, the total amount 
 of their claims exceeding the whole contract price."^^ 
 
 20 See, to the same effect, Packard v. Stevens, 58 N. J. Eq. 489, 
 46 Atl. 255, criticising Glyn v, Duesbury. 
 
 21 Pom. Eq. Jur., § 1323, note. See, also, as examples of such par- 
 tial claims, Yates v. Tisdale, 3 Edw. Ch. 71; Fargo v. Arthur, 43 
 How. Pr. 193; Newhall v. Kastens, 70 111. 156; Board of Education 
 V. Scoville, 13 Kan. 17; Barnes v. City of New York, 27 Hun, 236; 
 Van Zandt v. Van Zandt, 7 N. Y. Supp. 706, 17 Civ. Proc. E. 448; 
 Koenig v. New York Life Ins. Co., 14 N. Y. St. E. 250, 14 Civ. Proc. 
 R. 269. "Additional cases may be found in the many interpleader 
 suits in this court, under the mechanics' lien act, when the contract 
 is filed, and noticing creditors and holders of equitable assignments 
 are brought in because their claims upon the contract price conflict. 
 In these cases the claims often vary widely in amount, and some- 
 times involve little other dispute than a settlement of the order of
 
 75 INTERPLEADEK. § 46 
 
 § 46. Same; Illustrations.— "Where the same property 
 had been taxed to the owner in two counties, in some 
 cases for different amounts, in others for the same 
 amount, a bill of interpleader by the owner to deter- 
 mine which of the counties was entitled to the tax has 
 been maintained. It is difficult to perceive how the tax 
 levied by two different counties, even though the 
 amount of each tax is the same, is one and the same 
 debt or duty, so as to sustain a bill of interpleader."^^ 
 
 The question whether the plaintiff is liable for the 
 same debt, or has incurred a double liability, has fre- 
 quently arisen where a vendor seeks to interplead two 
 rival brokers, both claiming commissions by reason of 
 the same sale to the same purchaser;"^ and where an 
 insurance company has issued a policy or certificate on 
 the surrender of a previous policy or certificate, and 
 
 their priority; yet, if the situation be such that the contract price 
 is not enough to pay all, and the owner may be compelled to deter- 
 mine the order of priority of payment, it is common practice in this 
 state to settle the rights of all the claimants under an interpleader 
 bill": Packard v. Stevens, 58 N. J. Eq. 489, 46 Atl. 250, citing 
 Trenton Schools v. Heath, 15 N. J. Eq. 22; Wakeman v. Kingsland, 
 46 N. J. Eq, 113, 18 Atl. 680; Lanigan's Admr. v. Bradley & Currier 
 Co., 50 N, J. Eq. 202, 24 Atl. 505; Board etc. v. Duparquet, 50 N. J. 
 Eq. 234, 24 Atl. 922. But it is to be observed, in such cases, that 
 the claims must be conflicting; if there is no doubt as to the order of 
 their priority, there is no ground for interpleader: Ter Knile v. Eed- 
 dick (N. J. Eq.), 39 Atl. 1062. 
 
 22 Pom. Eq. Jur., § 1323, note. See Thompson v. Ebbets, Hopk. 
 Ch. (N. Y.) 272; Mohawk etc. R. R. Co. v. Clute, 4 Paige (N. Y.), 
 384, 391; Eedfield v. Supervisors, Clarke Ch. (N. Y.) 42; Dorn v. 
 Fox, 61 N. Y. 264; but, per contra, see Greene v. Mumford, 4 R. I. 
 313. In Massachusetts, it seems that such a bill is demurrable, but 
 has been sustained, neither party objecting: See Macy v. Nantucket, 
 121 Mass. 351; Forest River Land Co. v. City of Salem, 165 Mass. 
 193, 42 N. E. 802. 
 
 23 See Shipman v. Scott, 12 Civ. Proc. Rep. (N. Y.) 109, 14 Daly, 
 233. and Brooke v. Smith, 13 Pa. Co. Ct. R. 557, 2 Pa. Dist. R. 767, 
 33 Wkly. Not. Cas. 74, holding that the debt was the same, and
 
 § 46 EQUITABLE REMEDIES. 76 
 
 seeks to interplead rival beneficiaries.^* In a recent 
 case of much interest it was held that interpleader was 
 proper "when the complainant employs two or more 
 persons to do work upon a common object, under an 
 agreement that each shall be paid according to the 
 amount of the work he may separately do, to be ascer- 
 tained by measurement when the work shall be com- 
 pleted, and without fault of the complainant a confu- 
 sion of the work done arises, which prevents an ascer- 
 tainment of the amount separately done by each, so that 
 the complainant cannot safely pay either."-^ 
 
 "In other cases, one defendant claiming rent for cer 
 tain premises, and the other claiming damages for their 
 use and occupation, the demands were held not to be 
 the same.^® If the conflicting claims relate to a spe- 
 cific 'thing' in the plaintiff's possession, the identity 
 is clear, and the value alleged is immaterial. "^''^ 
 
 awarding interpleader; and McCreery v. Inge, 63 N. Y. Supp. 158, 
 49 App. Div. 133, and Sachsel v. Farrer, 35 111. App. 277, holding 
 that there was a double liability. 
 
 24 See National Life Ins. Co. v. Pingrey, 141 Mass. 411, holding 
 that the company could not have an order that the defendants inter- 
 plead, where one important question to be tried was whether, by 
 reason of its own act, it is under a liability to each of them; and 
 compare Supreme Commandery U. O. G. C. v. Merrick, 163 Mass. 
 374, 40 N. E. 183 (distinguishing the last ease as one where the con- 
 tracts of insurance were independent), and McCormick v. Supreme 
 Council, 39 N. Y. Supp. 1010, 6 App. Div. 175, where there were two 
 outstanding mutual benefit insurance certificates, but only one in- 
 surance effected and one set of premiums paid, and interpleader was, 
 therefore, awarded. 
 
 25 Packard v. Stevens, 58 N. J. Eq. 489, 46 Atl. 250. 
 
 26 Pom. Eq. Jur., § 1323, note; Dodd v. Bellows, 29 N. J. Eq. 127; 
 Johnson v. Atkinson, 2 Anstr. 798. 
 
 27 Pom. Eq. Jur., § 1323, note; Cady v. Potter, 55 Barb. 463. In 
 Lozier's Exrs. v. Van Saun's Admrs., 3 N. J. Eq. 325, a bill of inter- 
 pleader was sustained, where the controversy was as to which of the 
 defendants was entitled to receive payment of certain notes made 
 by plaintiff's testator, although the amount to be paid was not as- 
 certained; the amount, it was held, could not vary the rights of the
 
 77 INTERPLEADER. § 47 
 
 § 47. Second: Privity Between the Opposing Claimants. — 
 "A second requisite is, that the adverse title of the 
 claimants must be connected, or dependent, or one de- 
 rived from the other, or both derived from a common 
 source. It is not every instance of conflicting claims 
 against a person for the same thing, debt, or duty which 
 will entitle him to the remedy of an interpleader. 
 Where there is no privity betw^een the claimants, where 
 their titles are independent, not derived from a common 
 source, but each asserted as wholly paramount to the 
 other, the stake-holder is obliged, in the language of the 
 authorities, to defend himself as w^ell as he can against 
 each separate demand ; a court of equity will not grant 
 him an interpleader."^^ "This doctrine, which was left 
 
 claimants. In Bassett v. Leslie, 123 N. Y. 396, 25 N. E. 386, the 
 plaintiff sought to interplead two defendants, both claiming the same 
 amount, but one. claiming for goods sold to the plaintiff, and the 
 ether claiming upon a draft accepted by the plaintiff on the under- 
 standing that its proceeds should be used in payment of the debt for 
 the goods sold; it was held, under the circumstances of the case, that 
 the claims were not identical. Where A's claim against B is for 
 the price of goods sold, and C's claim is that these goods were eon- 
 verted by A, the demands are not so identical as to warrant inter- 
 pleader on B's petition: Coleman v. Chambers, 127 Ala. 615, 29 
 Soutji. 58; Sherman v. Partridge, 11 How. Pr. (N. Y.) 154. It was 
 held that where one claimant included in his suit a cause of action 
 with which the other claimant had nothing to do, interpleader was 
 not proper, in Carroll v. Demarest, 58 N. Y. Supp. 1028, 42 App. 
 Div. 155. That it is incorrect for a plaintiff to unite in one suit 
 three different issues of interpleader between three different groups 
 of parties merely because of the similarity of the questions involved, 
 see Wallace v. Sortor, 52 Mich. 159, 17 N. W. 794, distinguishing 
 School District v. Weston (for which case see last paragraph.) 
 
 28 Pom. Eq, Jur., § 1324. This section of Pom. Eq. Jur. is cited 
 with approval in Northwestern Mut. Life Ins. Co. v. Kidder, 162 
 Ind 382, 70 N. E. 489. See, also, Pearson v. Cardon, 2 Russ. & M. 
 606, 609-612; Crawshay v. Thornton, 2 Mylne & C. 1, 19-24; Nickolson 
 V. Knowles, 5 Madd. 47; Cooper v. De Tastet, Tarn. 177; Pfister v. 
 Wade, 56 Cal. 43; Third Nat. Bank v. Lumber Co., 132 Mass. 410; 
 Kyle y. Mary Lee Coal & E. Co., 112 Ala. 606, 20 South. 851; North
 
 § 47 EQUITABLE EEMEDIES. 78 
 
 somewhat doubtful by tbe previous cases, was finally 
 settled by the decision of Lord Brougham in Pearson v. 
 Cardon, and of Lord Cottenham in Crawshay v. Thorn- 
 ton. It finds its most frequent application in cases of 
 a tenant interpleading his landlord and a third person 
 claiming under paramount title, of a bailee interplead- 
 ing his bailor and an adverse claimant asserting a para- 
 mount title, and of an agent interpleading his principal 
 and an adverse paramount claimant. Examples of 
 these cases are given in subsequent paragraphs.^^ 
 
 "Such being the doctrine, it is a manifest imperfection 
 of the equity jurisdiction that it should be so limited. 
 A person may be, and is, exposed to danger, vexation, 
 and loss from conflicting independent claims to the 
 same thing, as well as from claims which are dependent ; 
 and there is certainly nothing in the nature of the rem- 
 edy which need prevent it from being extended to both 
 classes of demands."^*^ 
 
 Pacific Lumber Co. v. Lang, 28 Or. 246, 52 Am. St. Eep. 780, 42 Pac. 
 799; Hoyt v. Gouge (Iowa), 101 N. W. 464; City of Montpelier v. 
 Capital Sav. Bank, 75 Vt. 433, 98 Am. St. Eep. 834, 56 Atl. 89, 
 Contra, see Boyle v. Manion, 74 Miss. 572, 21 South. 530. For a case 
 where privity between the claimants was held to exist, see Fair- 
 banks V. Belknap, 135 Mass. 179, a bill of interpleader by trustees 
 for the benefit of creditors against, on the one hand, certain cred- 
 itors whose claims were subsequent in time to the conveyance to the 
 plaintiffs, and who assert rights in the property of the debtor as 
 beneficiaries of the trust, and ask its appropriation to the payment 
 of their debts; and^ on the other hand, against the assignees in in- 
 solvency of the debtor, who claim the debtor's property, discharged 
 from any supposed trust, by virtue of the assignment in insolvency. 
 In Packard v. Stevens, 58 N. J. Eq. 489, 46 Atl. 255, it was held that 
 the objection of lack of privity cannot be maintained where each 
 claimant, with the knowledge or assent of the other, contracted to 
 take employment on the same undertaking, and for payment on the 
 basis of the total work done, and they are in dispute as to the amount 
 of work which each contributed toward the total; though their con- 
 tracts are several, they are not independent. 
 
 29 Pom. Eq. Jur., § 1324, note. See post, §§ 54, 55. 
 
 30 Pom. Eq. Jur., § 1324, note, quoted with approval in Crane v.
 
 79 INTERPLEADER. § 43 
 
 § 48. Third: Plaintiff a Mere Stake-holder. — "The per- 
 son seeking the relief must not have nor claim any in- 
 terest in the subject-matter. He must occupy the posi- 
 
 McDonald, 118 N. Y. 648, 657, 23 N. E. 991. The court in this case 
 declined to decide whether the doctrine exists in New York, hold- 
 ing that the case under consideration fully met the requirements of 
 the rule, and remarking that "our statutory interpleader by order 
 apparently does not recognize the doctrine." Professor Pomeroy 
 continues: "It is not surprising, therefore, that courts have some- 
 times ignored this doctrine in their decisions, or have been ready 
 to admit exceptions to its operation. In the common-law procedure 
 act of 1860, which provides for a summary interpleader by motion 
 in legal actions, it was enacted that the order of interpleader may 
 be made ' though the titles of the claimants have not a common or- 
 igin, but are adverse to and independent of each other.' In Atten 
 borough V. London etc. Dock Co., L. R. 3 C. P. D. 450, which was 
 an interpleader proceeding in a legal action, the court of appeal held 
 that the statute above quoted had abrogated this doctrine as laid 
 down in Crawshay v. Thornton, at all events in the proceedings au- 
 thorized by the statute. Bramwell, L. J., who was one of the com- 
 missioners who drew up the statute, said (p. 456): 'From my own 
 knowledge as one of the common-law connuissioners, I can say that 
 it was intended to do away with the effect of that decision.' Bag- 
 gallay, L. J., a very eminent equity lawyer, said (p. 458): 'I may 
 go further, and say that, in my opinion, if, after the common-law 
 procedure act of 1860, a bill of interpleader had been filed, raising 
 facts like those in Crawshay v. Thornton, any judge of the court 
 of chancery would have felt himself no longer bound by the some- 
 what narrow principle laid down by Lord Cottentam, but would 
 have acted upon the fuller powers contained in that statute.' The 
 Code of Civil Procedure of California, as lately amended, in section 
 386, goes even further, and provides for an interpleader, 'although 
 the titles or claims have not a common origin, or are not identical.' 
 [See this section applied in Wells, Fargo & Co. v. Miner, 25 Fed. 
 533.] This last provision, that the claims need not be identical, 
 is certainly unnecessary and most unreasonable; it violates the whole 
 ground and reason upon which the remedy is based; if interpreted 
 literally by the courts, it would remove almost every limitation 
 upon this kind of suit, and render it a means of vexation and an- 
 Doyanee. There is no valid objection to the requisite that the on- 
 posing claims should be identical; the only question has been, "What 
 is such identity? Experience shows the danger of legislative inter- 
 meddling with doctrines long settled and approved by the consent- 
 ing judgments of able courts."
 
 § 48 EQUITABLE KEMEDIES. 80 
 
 tion of a stake-bolder. He must stand entirely indiffer- 
 ent between tbe conflicting claimants, and be ready and 
 willing to surrender tbe entire tbing in dispute, or to 
 pay tbe entire debt, or render tbe entire duty, witbout 
 any cbarge, deduction, or commission as against tbe one 
 rigbtfully entitled. He cannot mingle up a demand 
 of bis own upon tbe property or fund, witb tbe demand 
 tbat tbe otber persons sball interplead. As soon as 
 tbe decree is made tbat tbe defendants do interplead, 
 and tbat be be indemnified, tbe plaintiff must be wbolly 
 witbout tbe controversy To sum up tbe doc- 
 trine, tbe plaintiff can only obtain tbe remedy of 
 an interpleader; and tbe circumstances must be such 
 tbat tbe entire rigbts of botb defendants to tbe tbing, 
 fund, debt, or duty can be fully adjusted and deter- 
 mined in tbe one suit,"^^ 
 
 31 Pom. Eq. Jur., § 1325; Mitchell v. Hayne, 2 Sim. & St. 63; 
 Langston v. Boylston, 2 Ves. 101; Moore v. Usher, 7 Sim. 383; Big- 
 nold V. Aiidland, 11 Sim. 23; Hoggart v. Cutis, Craig & P. 197; Lin- 
 coln V. Eutland etc. E. R., 24 Vt. 639; Atkinson v. Manks, 1 Cow. 
 691; Shaw v. Coster, 8 Paige, 339, 35 Am, Dec. 690; Lozier's Exrs. 
 V. Van Saun's Admrs., 3 N. J. Eq. 325; Kerr v. Union Bank, 18 Md. 
 396; Burton v. Black, 32 Ga. 53; Adams v. Dixon, 19 Ga. 513, 65 
 Am. Dec. 608; Anderson v. Wilkinson, 10 Smodes & M. 601; Cullen 
 V. Dawson, 24 Minn. 66; Baltimore etc. R. R. v. Arthur, 90 N. Y. 
 234; Stone v. Reed, 152 Mass. 179, 25 N. E. 49; Blue v. Watson, 59 
 Miss. 19; Appeal of Bridesburg Mfg. Co., 106 Pa. St. 275. See, also, 
 Statham v. Hall, 1 Turn. & R. 30; Groves v. Sentell, 153 U. S. 465, 14 
 Sup. Ct. 898, 38 L. ed. 735; Crass v. Memphis & Charleston R. R. Co., 
 96 Ala. 447, 11 South. 480, quoting and approving the above text: 
 National Park Bank v. Lanahan, 60 Md. 477; Chase v. Ladd, 155 
 Mass. 417, 29 N. E. 637; Atkinson v. Flannigan, 70 Mich. 639, 38 N. 
 W. 655; Swan v. Bartlett, 82 Mo. App. 642. See, also. Supreme 
 Council of Legion of Honor v. Palmer, 107 Mo. App. 157, 80 S. W. 
 699, citing Pom. Eq. Jur.; Holland Trust Co. v. Sutherland, 177 N. 
 Y. 327, 69 N. E. 647; Dodge v. Lawson, 19 N. Y. Supp. 904, 22 Civ. 
 Proc. R. 112; Barnstein v. Hamilton, 49 N. Y. Supp. 932, 26 App. 
 Div. 206; Dohnert's Appeal, 64 Pa. St. 311; Wing v. Spaulding, 64 
 Vt. 83, 23 Atl. 615; and see cases cited in the following notes. 
 
 Illustrations. — A frequent application of the principle is furnished
 
 SI INTERPLEADER. { 49 
 
 § 49. Same; Admission or Waiver of Plaintiff's Claim; 
 Dispute as to His Liability. — ''While the plaintiff cannot 
 set up a claim, charg(», or lien upon the fund, which 
 shall enter into the litigation, and form a part of the 
 controversy,^ 2 j^ seems this rule is not without excep- 
 tions. It does not apply where the claim is admitted 
 
 by cases where the plaintiff claims the right to retain a portion of 
 the fund in controversy as commission or charge for his services ren- 
 dered in connection with the fund: See, for example, Mitchell v. 
 Hayne, 2 Sim. & St. 63, where the plaintiff, an auctioneer, seekin,? to 
 interplead a vendor and a purchaser who both laid claim to a de- 
 posit made by the latter, asserted a right to retain a portion of the 
 Bum as his commission; Baltimore & Ohio R. R. Co. v, Arthur, 90 
 N. Y. 234, where the plaintiff, a vendee of merchandise, seeking an 
 interpleader of the claims of his vendor and the latter 's receiver, 
 attempted to reserve less than one per cent of the sum in controversy 
 as freight chnrges. 
 
 The plaintiff, trustee of a disputed trust, is not an indifferent 
 stake-holder if he is entitled to a large commission in case the valid- 
 ity of the trust is sustained: National Park Bank v. Lanahan, 60 
 Md. 477; compare Chase v. Ladd, 155 Mass. 417, 29 N. E. 637 
 (executor cannot maintain interpleader to ascertain the respective 
 rights of defendants to property belonging to the estate of the tes- 
 tator, because of his interest in the property; but the bill may be 
 treated as a petition for instructions in the management of the 
 trust). The plaintiff is not an indifferent stake-holder if he has taken 
 an indemnity from some of the defendants: Statham v. Hall, 1 
 Turn. & R, 30; or if one of the claims is made against him by his 
 own procurement: Swain v. Bartlett, 82 Mo. App. 642. He must, of 
 course, admit a liability to some one: Bernstein v. Hamilton, 49 N. 
 Y. Supp. 932, 26 App. Div. 206. In a strict bill of interpleader, he 
 can claim no further equitable relief: Dohnert's Appeal, 64 Pa. St. 
 311; and see post, § 60, Bills in the Nature of Bills of Interpleader. 
 
 Since the plaintiff's interest or want of interest is not a mere 
 formal matter, but goes to the very right of maintaining the bill, 
 the objection on this score may be taken at the hearing: Wing v. 
 Spaulding, 64 Vt. 83, 23 Atl. 615, relying on Toulmin v. Reid, 14 
 Beav. 499, Statham v. Hall, 1 Turn. & R. 30, Yates v. Tisdale, 3 Edw. 
 Ch. 71, and Mount Holly etc. Turnpike Co. v. Ferree, 17 N. J. Eq. 
 117. 
 
 3 2 Pom. Eq. Jur., § 1325, note; Wakeman v. Dickey, 19 Abb. Pr. 
 (N. Y.) 124; Crass v. Memphis & C. R. Co., 96 Ala. 447, 11 South. 480, 
 Equitable Remedies, Vol. I — 6
 
 i 50 EQUITABLE EEMEDIES. 82 
 
 by both defendants.33 If the plaintiff has a claim or 
 charge on the fund, he may waive it, and maintain the 
 suit.^^ It necessarily follows from the general doctrine 
 that if the plaintiff expressly denies his liability in 
 whole or in part to one of the defendants, he strikes at 
 the very foundation of the remedy, and shows that he 
 is not indifferent.'"* 
 
 § 50. Same; Stake-holder Must be Plaintiff; Fund Must be 
 in His Custody. — "The stake-holder — the person in posses- 
 sion of the thing or fund, or from whom the debt or duty 
 
 holding that a carrier's lien for freight, the correctness of which 
 is not assented to, cannot be litigated in a suit to interplead the con- 
 signee 's vendor and attaching creditors of the consignee. See, alsOj 
 cases in the last note and the following notes. 
 
 33 Pom. Eq. Jur., § 1325, note; Cotter v. Bank of England, 2 
 Dowl. Pr. 728; and see Attenborough v. London etc. Co., L. E. 3 C. 
 P. D. 450; Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 592; Web- 
 ster V. McDaniel, 2 Del. Ch. 297. In McFadden v. Swinerton, 36 Or. 
 336, 59 Pac. 816, 62 Pac. 12, the claim of the plaintiff, an attorney, 
 on the fund for his fees did not prevent the interpleader. 
 
 34 Pom. Eq. Jur., § 1325, note; Jacobson v. Blackhurst, 2 Johns. 
 & H. 486; and see Orient Ins. Co. v. Keed, 81 Cal. 145, 22 Pac. 484. 
 
 35 Pom. Eq. Jur., § 1325, note; Moore v. Usher, 7 Sim. 383; Greene 
 V. Mumford, 4 E. I. 313; Patterson v. Perry, 14 How. Pr. 505; Cogs- 
 well V. Armstrong, 77 111. 139; Williams v. Matthews, 47 N. J. Eq. 
 196, 20 Atl. 261; Du Bois v. Union Dime Sav. Inst., 89 Hun, 382, 35 
 N. Y. Supp. 397, 25 Civ. Proc. Eep. 288, 2 N. Y. Ann. Cas. 221. A 
 denial not in the complaint but made on some previous occasion, la 
 not within this rule: Orient Ins. Co. v. Eeed, 81 Cal. 145, 22 Pac. 484. 
 As to the effect of a dispute or uncertainty with respect to the 
 amount of the fund or debt for which plaintiff is liable, see City 
 Bank v. Bangs, 2 Paige, 570; Consociated Pres. Soc. v. Staples, 23 
 Conn. 544; Chamberlain v. O'Connor, 1 E. D. Smith, 665; Bender v. 
 Sherwood, 15 How. Pr. 258; Patterson v. Perry, 14 How. Pr. 505; Will- 
 iams V. Matthews, 47 N. J. Eq. 196, 20 Atl. 261; Appeal of Bridesburg 
 Mfg. Co., 106 Pa. St. 275; Diplock v. Hammond, 2 Smale & G. 141; 
 Southwestern Tel. & T. Co. v. Benson, 63 Ark. 283, 38 S. W. 341; 
 New England Mut. L. Ins. Co. v. Odell, 50 Hun, 279, 2 N. Y. Supp. 
 873; Sibley v. Society, 3 N. Y. Supp. 8, 15 Civ. Proc. Eep. 316, 56 N. 
 Y. Super. Ct. (24 J. & S.) 274; Jackson v. Knickerbocker Athletic
 
 83 INTEEPLEADEB. § 51 
 
 is owing, and against whom two or more conflicting 
 claimants assert their demands — must necessarily be 
 the plaintiff. No interpleader suit can be maintained 
 by one of the contestants against the other contestant 
 and the stake-holder.^^ Furthermore, the plaintiff must 
 be in possession of the fund, or have it in his custody, 
 so that he can deliver or pay it in pursuance of the de- 
 cree. If he has already delivered the thing or paid the 
 fund to one of the contestants, no suit for interpleader 
 can be maintained."^' 
 
 § 51. Same; Plaintiff may have Interest in the Legal 
 Question. — "The interest, however, which shall defeat the 
 relief must be in the very thing or fund itself which is 
 the subject-matter of the controversy and of the suit. 
 An interest in the legal question at issue to be deter- 
 mined by the result of the litigation will not prejudice 
 the plaintiff's right to the relief. If, therefore, the 
 plaintiff has, with respect to other property not the 
 subject-matter of the present suit, an interest that one 
 of the defendants shall succeed, because the decision 
 thus made will be favorable to his own future litigation 
 
 Club, 49 App. Div. 107, 62 N. Y. Supp. 1109; Dodge v. Lawson, 19 
 N. Y. Supp. 904, 22 Civ. Proc. Eep. 112. That the defendants are 
 entitled to show that the amount offered by the complainant is not 
 the amount due, see Williams v. Matthews, 47 N. J. Eq. 196, 20 Atl. 
 261. 
 
 36 See Sprague v. West, 127 Mass. 471; Hyman v. Cameron, 46 
 Miss. 725; Hathaway v. Foy, 40 Mo. 540; Boyce v. Hamilton, 21 Mo. 
 App. 520, 525; Kontjohn v. Seimers, 29 Mo. App. 271; Am v. Arn, 
 81 Mo. App. 133; Wenstrom Electric Co. v. Bloomer, 85 Hun, 389, 
 32 N. Y. Supp. 903. 
 
 37 Pom. Eq. Jur., § 1325, note; Mount Holly etc. Co. v. Ferree, 17 
 N. J. Eq. 117; Tiernan v. Eescaniere's Admrs., 10 Gill & J. 217; Vos- 
 burg V. Huptington, 15 Abb. Pr. 254; Martin v. Maberry, 1 Dev. Eq. 
 169; Burnet v. Anderson, 1 Mer. 405; Hechmer v. Gilligan, 28 W. 
 Va. 750, 25S.
 
 § 52 EQUITABLE REMEDIES. 81 
 
 concerning that other property, — this is no objection 
 to his maintaining a suit for an interpleader."^* 
 
 § 52. Fourth: No Independent Liability to One Claim' 
 ant. — "The party seeking the relief must have incurred 
 no independent liability to either of the claimants. 
 Such an independent liability may be incurred in two 
 classes of cases : 1. In the first place, the agent, depos- 
 itary, bailee, or other party demanding an interpleader, 
 in his dealings with one of the claimants, may have 
 expressly acknowledged the latter's title, or may have 
 bound himself by contract, so as to render himself lia- 
 ble upon such independent undertaking, without refer- 
 ence to his possible liability to the rival claimant upon 
 the general nature of the entire transaction. Under 
 these circumstances, as the plaintiff is liable at all 
 events to one of the defendants, whatever may be their 
 own respective claims upon the subject-matter as be- 
 tween themselves, he cannot call upon these defendants 
 to interplead. He does not stand indifferent be- 
 tween the claimants, since one of them has a valid legal 
 demand against him at all events.^* Even if the ac- 
 
 38 Pom. Eq. Jur., § 1325, and note; Oppenheim v. Leo Wolf, 3 
 Sandf. Ch. 571; McHenry v. Hazard, 45 Barb. 657; Gibson v. Gold- 
 thwaite, 7 Ala. 281, 42 Am. Dec. 592. 
 
 39 Pom. Eq. Jur., § 1326. Quoted in Atkinson v. Carter, 101 Mo. 
 App. 477, 74 S. W, 502; Newman v. Commercial Nat. Bank, 156 111. 
 530, 41 N. E. 156 (affirming 55 111. App. 534). Cited to this effect in 
 Northwestern Mut. Life Ins. Co. v. Kidder (Ind. App.), 69 N. E. 
 204; S. C, 162 Ind. 382, 70 N. E. 489; Pratt v. Worrell (N. J. 
 Eq.), 57 Atl. 450. See, also, Crawshay v. Thornton, 2 Mylne & C. 
 1, 19-24; Suart v. Welch, 4 Mylne & C. 305; Jew v. Wood, Craia .f, 
 P. 185; Lindsay v. Barron, 60 E. C. L. 291; Patorni v. Campbell, 12 
 Mees. & W. 277; Standley v. Koberts, 59 Fed. 836, 8 C. C. A. 305, 19 
 U. S. App. 407; Pfister v. Wade, 56 Cal. 43; Tyus v. Rust, 37 Ga, 
 574, 95 Am. Dec. 365; Hatfield v. McWhorter, 40 Ga. 269; CuUen v. 
 Dawson, 24 Minn. 66; Wakeman v. Kingsland, 46 N. J. Eq. 113;
 
 85. INTERPLEADER. § 52 
 
 knowledgment or promise has been obtained by fraud 
 or mistake, tlie right of the party thus deceived to be 
 
 McKinney v. Kuhn, 59 Miss. 186 (claimants have reduced their de- 
 mands to Judgment); Ter Knile v. Reddick (N, J. Eq.), 39 Atl. 
 1062; Johnston v. Oliver, 51 Ohio St. 6, 36 N. E. 458; Connecticut 
 Mut. L. Ins. Co. V. Tucker, 23 R. I. 1, 91 Am. St. Rep. 590, 49 Atl. 
 26; and see cases cited below, and in the following notes. As to the 
 effect produced by the English statute of 1860, interpreted by the 
 decision in Attenborough v, London etc. Co., L. R. 3 C. P. D. 450, 
 and the amendment of section 386 of the California Code of Civil 
 Procedure (applied in Wells, Fargo & Co. v. Miner, 25 Fed. 533) see 
 ante, in note under § 47. 
 
 Illustrations. — It is held the plaintiff cannot interplead the claim- 
 ants after one of them has obtained judgment upon his claim: Home 
 Ins. Co. v. Caulk, 86 Md. 385, 38 Atl. 901; Baker v. Brown, 64 Hun, 
 627, 19 N. Y. Supp. 258; Wabash R. Co. v. Flannigan, 95 Mo. 
 App. 477, 75 S. W. 691. Where the complainant, a bailee, became 
 surety on the bond of one of the claimants for delivery of the chat- 
 tels, his right to interpleader was defeated: Kyle v. Mary Lee Coal & 
 R. Co., 112 Ala. 606, 20 South. 851, quoting the above text. Where 
 money was deposited in the N. bank (the plaintiff and appellant) to 
 the credit of the P. bank, a mere notification by the former to the 
 latter of the deposit and credit, before receiving information of a 
 rival claim to deposit, does not constitute an express acknowledg- 
 ment of the P. bank's title, or an independent undertaking, within 
 the meaning of the text. "The liability of [the plaintiff], what- 
 ever and to whosoever it was, arose from the act of deposit and ac- 
 ceptance of the fund. It did not spring from the telegram and 
 letter of notification. Such papers did not constitute the contract, 
 but were mere evidences of it; neither did they increase appellant's 
 liability or affect it in any way": Platte Valley State Bank v. Na- 
 tional Livestock Assn., 54 111. App. 483; opinion affirmed and adopted, 
 155 111. 250, 40 N. E. 621. A written receipt by the plaintiff, an insur- 
 ance company, of an assignment of the policy is not an acknowledg- 
 ment of liability to the assignee: Morrill v. Manhattan L. I. Co. 82 
 111. App. 410; opinion affirmed and adopted, 183 111. 260, 55 N. E. 
 656. In a case of rival sets of beneficiaries, claiming under a bene- 
 fit insurance certificate, no independent liability on the part of the 
 company to one set of beneficiaries resulted from assessments and 
 dues paid by them, as the payments were made on behalf of tha 
 member, and under his contract with the company: Supreme Com- 
 mandery, U. O. G. C. v. Merrick, 163 Mass. 374, 40 N. E. 183.
 
 § 53 EQUITABLE REMEDIES. 86 
 
 relieved in equity from his liability cannot be consid- 
 ered and sustained in an interpleader suit."**^ 
 
 "Another instance of the doctrine is, where the plain- 
 tiff, in stating the case in his bill, is obliged to admit 
 himself to be a wrong-doer to either one of the defend- 
 ants; he thus shows an independent liability to that 
 defendant, and is not entitled to an interpleader.^^ If 
 the liability has been occasioned by some act of the 
 plaintiff himself, he is not entitled to the remedy."" 
 
 § 53. Same; 2. Independent Liability Arising from Nature 
 of Original Relation. — ''In the second class of cases, the 
 independent liability of the plaintiff to one of the de- 
 fendants arises from the very nature of the original 
 relation subsisting between them, without reference to 
 any collateral acknowledgment of title, or promise to 
 be bound. The most important examples of such re- 
 lations are those subsisting between a bailee and his 
 bailor, an agent or attorney and his principal, a ten- 
 ant and his landlord, and the like. In pursuance of 
 the doctrine above stated, if a bailee is sued by his 
 bailor, or an agent by his principal, or a tenant by his 
 landlord, and at the same time a third person asserts 
 a claim of title adverse and paramount to that of the 
 bailor, principal, or landlord, a suit of interpleader 
 
 40 Pom. Eq. Jur., § 1326. See Mitchell v. Northwestern Mfg. & 
 C. Co. 26 111. App. 295 (acknowledgment obtained by mistake). 
 
 41 Pom. Eq. Jur., § 1326, note; Slingsby v. Boulton, 1 Ves. & B. 
 334; Morgan v. Fillmore, 18 Abb. Pr. 217; United States v. Vietor, 
 16 Abb. Pr. 153; Mount Holly etc. Co. v, Ferree, 17 N. J. Eq. 117; 
 Dewey v. White, 65 N. C. 225; Hatfield v. McWhorter, 40 Ga. 269; 
 Tyus V. Bust, 37 Ga. 574, 95 Am. Dec. 365; Coleman v. Chambers, 
 127 Ala. 615, 29 South. 58; Dodge v. Lawson, 19 N. Y. Supp. 904, 22 
 Civ. Proc. Eep. 112. See, also, Stephenson v. Burdett (W. Va.), 48 
 S. E. 846. 
 
 42 Pom. Eq. Jur., § 1326, note. See Desborough v. Harris, 5 De 
 Gex, M. & G. 439, 455; Cochrane v. O'Brien, 2 Jones & L. 380, 8 Ir. 
 Eq. Rep. 241; Conley v. Alabama Gold Life Ins. Co., 67 Ala. 472.
 
 87 INTERPLEADEE. § 54 
 
 cannot, in general, be maintained against the two con- 
 flicting claimants, since, from the very nature of the 
 relation, there is an independent personal liability, with 
 respect to the subject-matter, of the bailee to his bailor, 
 of the agent to his principal, and of the tenant to his 
 landlord.^^ 
 
 "The rule is not, however, of universal application. 
 There are cases in which a bailee, agent, or tenant may 
 interplead his bailor, principal, or landlord, and a third 
 person setting up an opposing claim to the thing, fund, 
 or duty. These cases may be described by one general 
 formula, as those in which the title of the opposing 
 claimant is derivative under, and not antagonistic and 
 paramount to, that of the bailor, principal, or landlord. 
 An interpleader is allowed wherever the adverse claim 
 originates from some act of the bailor, principal, or 
 landlord, done or suffered after the commencement of 
 the bailment, agency, or tenancy, and causing a dispute 
 as to which of the parties is entitled to the thing, fund, 
 or duty. The claim of the third person, instead of be- 
 ing under an independent, antagonistic, paramount 
 title, must be made under a title derived from that of 
 the bailor, principal, or landlord; it must acknowledge, 
 and not deny, such original title."^* 
 
 § 54. Same; Bailees and Agents.'*^ — «A bailee or agent 
 cannot maintain an interpleader suit against the bailor 
 or the principal and a third person who asserts an inde- 
 pendent, antagonistic, and paramount title to the 
 funds.^^ Nor can an attorney maintain such a suit 
 
 43 Pom. Eq. Jur., § 1326. 
 4 4 Pom, Eq. Jur., § 1327. 
 
 45 Pom. Eq. Jur., § 1327, note. 
 
 46 Nickolson v. Knowles, 5 Madd. 47; Dixon v. Hammond, 2 
 Barn. & Aid. 310, 313; Cooper v. De Tastet, Tam. 177. 181, 182; 
 Smith V. Hammond, 6 Sim. 10; Pearson v. Cardon, 2 Russ. & M.
 
 § 54 EQUITABLE EEMEDIES. 88 
 
 against his client and a third person who claims the 
 money which he has collected, by an independent and 
 antagonistic title.^^ For the same reason, where A 
 claims as legatee under a will, and B claims the prop- 
 erty by a title paramount to that of the testator, the ex- 
 ecutor cannot compel them to interplead; he is under 
 a direct liability to the legatee.^^ On the other hand, 
 there are cases in which a bailee or an agent may inter- 
 plead his bailor or his principal with third persons 
 claiming adversely. Wherever the third person claims 
 the thing, fund, debt, or duty from the bailee or agent 
 under a title derived from the bailor or the principal, 
 created by the latter's own act subsequently to the bail- 
 ment or agency, — such as his assignment, agreement, 
 sale, mortgage, trust, or lien given by him, — the bailee 
 or agent may compel the parties to interplead. There 
 
 606, 609, 610, 612; Crawshay v. Thornton, 2 Mylne & C. 1, 19-24; 
 
 /v. ^ Cook V. Earl of Eosslyn, 1 Giff. 167; Atkinson v. Manks, 1 Cow. 
 ■(\ <J 691, 703-706; United States Trust Co. v. Wiley, 41 Barb. 477; Lund 
 
 V^sNi V, Seamen's Bank, 37 Barb. 129; United States v. Vietor, 16 Abb. 
 Y^ Pr. 153; Vosburgh v. Huntington, 15 Abb. Pr. 254; First Nat. Bank 
 ^ V, Bininger, 26 N. J. Eq. 345; Tyus v. Eust, 37 Ga. 574, 95 Am. Dec. 
 365; Hatfield v. McWhorter, 40 Ga. 269; Crane v. Burntrager, 1 Ind. 
 165; "White Water etc. Co. v. Comegys, 2 Ind. 469; Bartlett v. The 
 Sultan, 23 Fed. 257; De Zouche v. Garrison, 140 Pa. St. 430, 21 Atl. 
 450; Whitbeck v. Whiting, 59 111. App. 520; Cromwell v. American 
 L. & T. Co., 57 Hun, 149, 11 N. Y. Supp. 144; Pacific Express Co. v. 
 Williams, 2 Willson (Tex.) Civ. Cas. Ct. App., § 810. 
 
 Lord Brougham declares, in Pearson v. Cardon, 2 Eusa. & M. 606, 
 "That an agent should have the power of filing a bill of inter- 
 pleader, when his principal demands the redelivery of his goods bailed 
 with him, appeared to me so monstrous a proposition, and to involve 
 such frightful consequence in mercantile transactions, that I could 
 not suppose it was meant to contend for any such doctrine. For, in 
 fact, it amounts to this: that an agent may, at any moment, treat 
 his principal to a chancery suit," etc. 
 
 47 Marvin v. Ellwood, 11 Paige, 365; but see, per contra, Goddard 
 V. Leech, Wright, 476. 
 
 48 Adams v. Dixon, 19 Ga, 513, 65 Am. Dec. 608.
 
 89 INTEEPLEADER. S 54 
 
 is in such a case no denial of the original title; the only 
 dispute is concerning the effect of the subsequent act, 
 and as to which of the claimants is thereby entitled to 
 the thing or fund. On this general ground an attorney 
 may interplead his client and a person who sets up a 
 derivative claim from such client.^^ And where money 
 is in the hands of an agent, and the principal has cre- 
 ated a lien or charge on the fund, in favor of a third 
 person, in respect to which a controversy has arisen, the 
 agent may compel his principal and the other claimant 
 to interplead;^" and where the principal has assigned 
 the fund in the agent's hands, or the bailor has trans- 
 ferred his interest in the thing bailed.^^ For a like rea- 
 son an interpleader is permitted where a bailor or prin- 
 cipal has given orders for the property to two different 
 persons who set up conflicting claims, since their titles 
 are derivative, and not antagonistic.^^ An interpleader 
 by the bailee is also allowed where a joint bailment has 
 been made, or a transaction in the nature of a joint 
 bailment, to await the happening of some event or the 
 determination of some dispute.^^ It should be remem- 
 bered that in all such cases if the bailee or agent has 
 recognized the title of the assignee or other holder of a 
 
 49 Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 592; McFadden 
 V. Swinerton, 36 Or. 336, 59 Pac. 816, 62 Pac. 12; Sammis v. L'Engle, 
 19 Fla. 800. 
 
 50 Smith V. Hammond, & Sim. 10; Wright v. Ward, 4 Riiss. 215- 
 220. 
 
 51 Crawford v. Fisher, 1 Hare, 436, 440; Smith v. Hammond, 6 
 Sim. 10; Wright v. Ward, 4 Eiiss. 215-220; Tanner v. European Bank, 
 li. R. 1 Ex. 261; Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 502. 
 
 62 Pearson v. Cardon, 2 Russ. & M. 606, 4 Sim. 218; Atkinson v. 
 Manks, 1 Cow. 691. The decision in Schuyler v. Pelissier, 3 Edw. 
 <^h. 191, goes too far. 
 
 53 Suart V. Welch, 4 Mylne & C. 305; City Bank v. Skelton, 2 
 Elatchf. 14, Fed. Cas. No. 2739; First Nat. Bank v. West River R. R., 
 46 Vt. 633; Perkins v. Trippe, 40 Ga. 225. For special cases, see 
 Mason v. Hamilton, 5 Sim. 19; Crellin v. Levland, 6 Jur. 733.
 
 § 55 EQUITABLE EEMEDIES. 90 
 
 derivative title, and has stipulated to hold the property 
 at his disposal, the independent liability thus assumed 
 will prevent the bailee or agent from compelling the 
 assignee to interplead with the bailor or principal who 
 repudiates the transaction."^^ 
 
 § 55. Same; Tenant and Landlord.^s — "The general doc- 
 trine is familiar, that a tenant cannot deny his land- 
 lord's title; he cannot therefore maintain a suit for in- 
 terpleader against his landlord and a stranger who 
 claims under a title antagonistic and paramount to that 
 of the lessor.^^ But the tenant is entitled to interplead 
 his landlord and an opposing claimant whenever there 
 is some privity between the two, — when the title of the 
 other claimant is derivative from that of the lessor, — as, 
 for example, when the relation of mortgagor and mort- 
 gagee, trustee and cestui que trust, assignor and assignee, 
 etc., has been created between the two. In such a case 
 the tenant does not dispute his landlord's title.^^ So, 
 when both contestants claim under the lessor by differ- 
 
 64 See ante, % 52; Tyus v. Eust, 37 Ga. 574, 95 Am. Dec. 365; Hat- 
 field V. McWhorter, 40 Ga. 269; Horton v. Earl of Devon, 4 Welsb. 
 H. & G. 496. 
 
 55 Pom. Eq. Jur., § 1327, note. 
 
 56 Dungey v. Angove, 2 Ves. 304, 310; Woolaston v. Wright, 3 
 Anstr. 801; Smith v. Target, 2 Anstr. 529; Johnson v. Atkinson, 3 
 Anstr. 798; Cook v. Earl of Eosslyn, 1 Giflf. 137; Crawshay v. Thorn- 
 ton, supra; Seaman v. Wright, 12 Abb. Pr. 304; Crane v. Burntrager, 
 1 Ind. 165; Snodgrass v. Butler, 54 Miss. 45; Standley v. Eoberts, 
 59 Fed. 836, 8 C. C. A. 305, 19 U. S. App. 407; Whitewater Valley 
 etc. Co. V. Comegys, 2 Ind. 469. 
 
 57 Dungey v. Angove, 2 Ves. 304, 310, 312; Metcalf v. Hervey, 1 
 Ves. Sr. 248; Cowtan v. Williams, 9 Ves. 107; Clarke v. Byne, 13 
 Ves. 383; Johnson v. Atkinson, 3 Anstr. 798; Seaman v. Wright, 12 
 Abb. Pr. 304; Snodgrass v. Butler, 54 Miss. 45; Oil Eun Petro.Co. 
 T. Gale, 6 W. Va. 525; Ketcham v. Brazil Block Coal Co., 88 Ind. 515; 
 Van Zandt v. Van Zandt, 7 N. Y. Supp. 706, 17 Civ. Proc. Eep. 448; 
 McCoy V. McMurtrie, 12 Phila. 180 (mortgagor and mortgagee).
 
 91 INTERPLEADER. S 56 
 
 ent titles; for example, one as heir and the other as 
 devisee."^^ 
 
 § 56. Same ; Parties to Contracts.^^ — "As a general rule, 
 where A and B are bound by express contract, A cannot 
 maintain an interpleader suit against B or a person 
 holding or claiming under him, and a stranger who as- 
 serts and claims under an antagonistic and paramount 
 title. A is under an independent liability to B.^° For 
 example, a vendee of real or personal property, with re- 
 spect to his liability to pay the purchase price, cannot 
 interplead his vendor and a third person claiming to 
 own the property by an independent antagonistic title.^^ 
 On the other hand, as in cases of bailees, agents, and 
 tenants, a party to a contract may interplead his co- 
 contractor and other persons in privity with him, or 
 distinct claimants all of whom are in privity with his 
 co-contractor, — that is, may interplead his co-contractor 
 and persons who derive their title under him, or several 
 claimants all of whom thus hold by derivative title.^^ 
 As example: A vendee may interplead his vendor and 
 an attaching creditor of A, alleged to be the real owner,, 
 the sale being alleged to have been really made by the 
 vendor as A's agent.^^ One owing a sum of monev un- 
 
 '& 
 
 58 Jew V. Wood, 3 Beav. 579; Badeau v. Tylee, 1 Sandf. Ch. 270; 
 Glaser v. Priest, 29 Mo. App. 1. 
 
 59 Pom. Eq. Jur., § 1327, note. 
 
 60 Ante, § 52. 
 
 61 Quoted in Northwestern Mut. Life Ins. Co. v. Kidder, 162 Ind. 
 382, 70 N. E. 489. See, also, James v. Pritchard, 7 Mees. & W. 216; 
 Trigg V. Hitz, 17 Abb. Pr. 436; Shehan's Heirs v. Barnett's Heirs, 6 
 T. B. Mon. 592; Tynan v. Cadenas, 7 Civ. Proc. Rep, (N. Y.) 305 
 (no interpleader by vendee of goods against persons each of whom 
 claim to have sold him the goods). 
 
 62 Bechtel v. Sheafer, 117 Pa. St. 555, 562, 11 Atl. 889. 
 
 63 Richards v. Salter, 6 Johns. Ch. 445; Johnston v. Lewis, 4 Abb. 
 Pr., N. S., 150.
 
 § 56 EQUITABLE EEMEDIES, 92 
 
 der a contract may interplead the legal assignee of his 
 co-contractor, and one claiming the fund either by equi- 
 table assignment from the co-contractor or by attach- 
 ment levied upon the fund.^^ A vendor of land may 
 interplead the husband of the deceased vendee and her 
 heirs, where both claimed to be entitled to a convey- 
 ance.^^ Insurance companies may compel opposing 
 claimants of the insurance money to interplead when 
 they claim by assignment from the assured, or by mort- 
 gage, or by attachment, etc. — that is, when they claim 
 derivatively.^^ On like ground, corporations may in- 
 terplead opposing claimants of stock or dividends, 
 whose titles are derivative from a stockholder, by as- 
 signment, execution, attachment, trust, etc.^' A maker 
 of a note may compel claimants holding under the payee 
 by derivative title to interplead ; for example, an attach- 
 ing creditor of payee and an assignee ;^^ the adminis- 
 trator of a deceased guardian to whom the note was 
 made payable, and a new guardian appointed in place 
 
 64 Crane v. McDonald, 118 N. Y. 648, 23 N. E. 991. The titles of 
 both defendants were plainly derivative. 
 
 65 Farley v. Blood, 30 N. H. 354. 
 
 66 Nelson v. Barter, 2 Hem. & M. 334; Hamilton v. Marks, 5 De 
 Gex & S. 638; Spring v. South Carolina Ins. Co., 8 Wheat. 268, 5 L. 
 ed. 614; Prudential Assur. Co. v. Thomas, L. E. 3 Ch. 74; Aetna Nat. 
 Bank v. United States L. Ins. Co., 25 Fed. 531; Heusner v. Mutual 
 Life Ins. Co., 47 Mo. App. 336; Supreme Conclave I. O. H. v. Dailey, 
 61 N. J. Eq. 145, 47 Atl. 277 (interpleader by a benefit society); 
 Grill V. Globe & E. F. I. Co., 67 N. Y. Supp. 253, 55 App. Div. 612, 
 citing Bacon v. Surety Co., 65 N. Y. Supp. 738, 53 App. Div. 150, and 
 Woolworth V. Insurance Co., 49 N. Y. Supp. 512, 25 App. Div. 629. 
 
 67 Salisbury Mills v. Townsend, 109 Mass. 115; Providence Bank 
 v. Wilkinson, 4 E. I. 507, 70 Am. Dec. 160; Cady v. Potter, 55 Barb. 
 463; American Press Association v. Brantingham, 68 N. Y. Supp. 
 285, 57 App. Div. 399. See Cheever v. Hodgson, 9 Mo. App. 565; 
 Bruggeman v. Bank, 1 City Ct. E. (N. Y.) 86 (rival claimants to a 
 certified check). 
 
 68 Briant v. Eeed, 14 N. J. Eq. 271; Bryan v. Salterstall, 3 J. J. 
 Marsh. 672; Fabie v. Lindsay, 8 Or. 474.
 
 93 1jS'TERPL,EADEB. § 57 
 
 of the one deceased."^* A very common class of inter- 
 pleader suits is that where a bank, holding the relation 
 of debtor to its depositor, interpleads the depositor and 
 one claiming under him, or two opposing claimants un- 
 der the same dei)ositorJ*^ 
 
 § 57. Same; by Receiver; by Master of a Vessel; by Sher- 
 iff,7i — uj^ receiver has been held entitled to interplead 
 opposing claimants of the fund in his handsJ^ (Quaere, 
 would not the court direct the proper distribution of 
 the fund by the receiver?) Where suits by persons claim- 
 ing to be owners of the cargo are instituted in admiralty 
 against a ship, causing her arrest, the master cannot 
 maintain interpleader against these claimants, because 
 — 1. The claims are not against him, but against the 
 ship; and 2. The court of admiralty has full jurisdic- 
 tion to settle all the questionsJ^ Independently of 
 statute, it has generally been held that a sheriff levying 
 on goods by execution against A, which are claimed by 
 B to be his property, cannot compel the execution cred- 
 
 69 Van Buskirk v. Roy, 8 How. Pr. 425. 
 
 70 See Platte Valley State Bank v. National Livestock Bank, 
 54 111. App. 483, affirmed and opinion adopted, 155 111. 250, 40 N. E. 
 621; People's Savings Bank v. Look, 95 Mich. 7, 54 N. W, 629; Ger- 
 man Exchange Bank v. Commissioners, 6 Abb. N. C. (N. Y.) 394; 
 Smith v. Emigrant Industrial Sav. Bank, 17 N. Y. St. Eep. 852, 2 
 N. Y. Supp. 617. See Hasten v. Bowery Sav. Bank, 63 N. Y. Supp. 
 964, 31 Misc. Eep. 178 (no interpleads when, by statute, a draft does 
 not constitute an equitable assignment). If one of the claimants as- 
 serts a title superior to that of the depositor, interpleader is not 
 allowed: Third National Bank v. Skillings Lumber Co., 132 Mass. 
 410 (claimant asserts that depositor was its agent, and that the 
 draft deposited was its property); Gorman Sav. Bank v. Friend, 61 
 N. Y. Super. Ct. (29 J. & S.) 400, 20 N. Y. Supp. 434. 
 
 71 Pom. Eq. Jur., § 1327, note. 
 
 72 Winfield v. Bacon, 24 Barb. 154. 
 
 73 Sablicich v. Eussell, L. E, 2 Eq. 441.
 
 § 58 EQUITABLE REMEDIES. 94 
 
 itor and B to interplead.'^* Nor can the sheriff compel 
 the opposing claimants of a surplus in his hands after 
 satisfying an execution to interplead ; such claims can 
 be adjusted by the courts.''^ Statutes in England and 
 in many of the states have authorized the sheriff to in- 
 terplead the claimants of property seized by him under 
 process." 
 
 § 58. Requisites of the Bill or ComplaintJ^ — "The bill 
 of complaint must contain allegations which show that 
 all of the requisites entitling the plaintiff to the rem- 
 edy exist in the case. It must allege positively that 
 conflicting claims to substantially the same thing, fund, 
 debt, or duty are set up by the defendants; that plain- 
 tiff claims no interest in the subject-matter; that he is 
 indifferent between the claimants, and is ready and will- 
 ing to deliver the thing or fund, or pay the debt, or ren- 
 der the duty to the rightful claimant, but that he is 
 ignorant or in doubt which is the rightful one, and is in 
 a real danger or hazard by means of such doubt, from 
 their conflicting demands. '^'^ The bill need not show 
 
 74 Slingsby v. Boulton, 1 Ves. & B. 334; Shaw v. Coster, 8 Paige, 
 339, 35 Am. Dec. 690; S. C, sub nom. Shaw v. Chester, 2 Edw. Ch. 
 405; Quinn v. Green, 1 Ired. Eq. 229, 36 Am. Dec. 46; Quinn v. Pat- 
 ton, 2 Ired. Eq. 48; Dewey v. White, 65 N. C. 225. 
 
 75 Parker v. Barker, 42 N. H. 78, 77 Am. Dec. 789; McDonald v. 
 Allen, 37 Wis. 108, 19 Am. Rep. 754. But see Kring v. Green's Exrs., 
 
 10 Mo. 195; Lawson v. Jordan, 19 Ark. 297, 70 Am. Dec. 596; Child 
 V. Mann, L. R. 3 Eq. 806. 
 
 76 Pom. Eq. Jur., § 1328, and notes. 
 
 77 Farley v. Blood, 30 N, H. 354; Parker v. Barker, 42 N. H. 78, 
 77 Am. Dec. 789; Atkinson v. Manks, 1 Cow. 691; Wilson v. Duncan, 
 
 11 Abb. Pr. 3; Lozier's Exrs. v. Van Saun's Admrs., 3 N. J. Eq. 325; 
 Eriant v. Reed, 14 N. J. Eq. 271; Snodgrass v. Butler, 54 Miss. 45; 
 Starling v. Brown, 7 Bush, 164; State Ins. Co, v. Gennett, 2 Tenn. 
 Ch. 82; Pfister v. Wade, 56 Cal. 43; Killian v. Ebbinghaus, 110 U. S. 
 568, 4 Sup. Ct. Rep. 232, 28 L. ed. 246; Crane v, McDonald, 118 
 N. T. 648, 654, 23 N. E. 991; Stone v. Reed, 152 Mass. 179, 25 N. E.
 
 95 INTERPLEADER. § 58 
 
 an apparent title in either of the defendantsJ^ On the 
 contrary, if the bill should show that plaintiff was fully 
 informed of the defendants' rights and of his own lia- 
 bility, or if it should show that one of the defendants 
 was certainly entitled, on the facts alleged, to the thing, 
 debt, or duty, in either case it would be demurrable; 
 there would be no ground for an interpleader.'"* 
 
 49; Sullivan v. Knights of F, M., 73 Mo. App. 43; Funk v. Thomasson, 
 84 Mo. App. 490; North Pacific Lumber Co. v. Lang, 28 Or. 246, 52 
 Am. St. Rep. 780, 42 Pac. 799. "The material allegations in a bill 
 of interpleader .... are: (1) That two or more persons have pre- 
 ferred a claim against the complainant; (2) that they claim the same 
 thing; (3) that the complainant has no beneficial interest in the thing 
 claimed; and (4) that he cannot determine without hazard to himself, 
 to which of the defendants the thing belongs": Crane v. McDonald, 
 118 N. Y. 648, 654, 23 N. E. 991; Atkinson v. Manks, 1 Cow. (N. Y.) 
 691, 703. The claims should be sufficiently set forth to enable the 
 court to determine whether it is doubtful or dangerous for the plain- 
 tiff to act: National Bank of Augusta v. Augusta etc. Co., 99 Ga. 
 236, 25 S. E. 686; sufficiently to give a color of right to each of the 
 defendants: Robards v. Clayton, 48 Mo. App. 60S; specifically, so that 
 they may appear to be of the same nature and character, and the 
 fit subject for a bill of interpleader: Varrien v. Berrien, 42 N. J. Eq. 
 ], 10* Atl. 875; Connecticut Mut. Life Ins. Co. v. Lea, 7 Ohio N. P. 
 399, 10 Ohio S. & C. P. Dec. 39. As to what is a sufficiently specific 
 description of the claims, see, also. Crane v. McDonald, 118 N. Y. 
 648, 23 N. E. 991. As to proof of the claims, it is held that the 
 answers of the defendants may be read against each other to es- 
 tablish the fact that each makes claim to the fund, and further 
 proof of that fact is not necessary: Morrill v. Manhattan L. I. Co., 
 183 111. 260, 55 N. E. 656, affirming and adopting opinion in 82 III. 
 App. 410; Balchen v. Crawford, 1 Sandf. Ch. (N. Y.) 380. That the 
 bill must contain averments showing privity between the claimants, 
 see Kyle v. Mary Lee Coal & R. Co., 112 Ala. 606, 20 South. 851. 
 
 78 East & W. Ind. Dock Co. v. Littledale, 7 Hare, 57; Pfister v. Wade, 
 56 Cal. 43; Supreme Lodge O. M. P. v. Raddatz, 57 111. App. 119; 
 Stewart v. Fallon (N. J. Eq.), 58 Atl. 96. 
 
 79 Parker v. Barker, 42 N. H. 78, 77 Am. Dec. 789; Mohawk etc. 
 R. R. V. Clute, 4 Paige, 384; Morgan v. Fillmore, 18 Abb. Pr. 217; 
 Wilson V. Dnncan, 11 Abb. Pr. 3; Briant v. Reed, 14 N. J. Eq. 271; 
 Barker v. Swain, 4 Jones Eq. 220; Bassett v. Leslie, 123 N. Y. 396, 
 15 N. E. 386; Pusey & Jones Co. v. Miller, 61 Fed. 401; Sugar Co. v.
 
 § 59 EQUITABLE EEMEDIES. 96 
 
 § 59. Affidavit of Non-collusion; Payment into Court; 
 Costs. — "It is the settled practice that the bill of com- 
 plaint must be accompanied by an affidavit of the plain- 
 tiff, stating that the suit is not brought in collusion 
 with either of the defendants ; and the omission of such 
 affidavit may generally be taken advantage of by de- 
 murrer.^*^ The plaintiff must also bring or pay, or offer 
 
 Alterger, 22 Hun, 349, 353; Shaw v. Coster, 8 Paige, 339, 35 Am. 
 Dec. 690 (both defendants may demur). "When, from complainant's 
 own showing, there can be no doubt in the case, the party entitled 
 to the debt or duty claimed is not to be subjected to the delay and 
 expense of a chancery suit": Crass v. Memphis & C. R. Co., 96 Ala. 
 •447, 11 South. 480. "If the plaintiff denies his liability to either 
 of the defendants, he is not entitled to the remedy; he destroys the 
 very foundation on which it rests: McHenry v. Hazard, 45 Barb, 
 657, 45 N. Y. 580 [Southwark Nat. Bank v. Childs, 57 N. Y. Supp. 
 789, 39 App. Div. 560; ante, § 49]. If the bill is taken as confessed 
 by one of the conflicting defendants, the fund indisputably belongs 
 to the other. And where in such a case a stranger was afterwards 
 admitted by the lower court, on petition, to contest the interest of the 
 remaining defendant, it was held on appeal that there was no prac- 
 tice allowing a third person thus to come into the cause by petition; 
 that the bill could not be amended to reach him, as it was filed to 
 guard against known claims; the order that the remaining defendant 
 and the third person should interplead was irregular: Michigan etc. 
 Co. V, "White, 44 Mich. 25, 5 N. W. 1086. {Quaere, would such a pro- 
 ceeding be allowed under the provisions of the Iowa and California 
 codes permitting Intervention?)" Pom. Eq. Jur., § 1328, note. 
 
 80 Hamilton v. Marks, 5 De Gex & S. 638; Farley v. Blood, 30 N. 
 H. 354; Atkinson v. Manks, 1 Cow. 691; Beck v. Stephani, 9 How. 
 Pr. 193; Mount Holly etc. Co. v. Ferree, 17 N. J. Eq. 117; Tyus v. 
 Eust, 37 Ga. 574, 95 Am. Dec. 365; Snodgrass v. Butler, 54 Miss. 45; 
 Starling v. Brown, 7 Bush, 164; Biggs v. Kouns, 7 Dana, 405, 411; 
 Blue V. Watson, 59 Miss. 619; Ammendale Norm. Inst. v. Anderson, 
 71 Md. 128, 17 Atl. 1030; Home Ins. Co. v. Caulk, 86 Md. 385, 38 Atl. 
 901; Bliss v. French, 117 Mich. 538, 76 N. W. 73; but a contrary 
 practice seems to prevail in Connecticut: Consociated Pres. Soc, v. 
 Staples, 23 Conn. 544, 555; Nash v. Smith, 6 Conn. 421; and in Indiana 
 the absence of the affidavit is not a ground of demurrer under the 
 code, since demurrers under the code can be sustained for specified 
 causes only, and the want of verification of a pleading is not one 
 of them: Nof singer v. Eeynolds, 52 Ind. 218, 224; while in Oregon
 
 97 INTERPLEADER. § 59 
 
 to bring or pay, the entire thing, fund, or money in con- 
 troversy into court; an omission to do so renders the bill 
 demurrable.^^ If the bill was properly filed, and if the 
 plaintiff has acted in good faith, he is generally entitled 
 to his costs out of the fund in controversy, which costs, 
 as between the defendants, must ultimately be paid by 
 the unsuccessful party."^^ 
 
 it is "perhaps sufficient under code practice that the fact [of non- 
 collusion] appear by appropriate allegations in the complaint": North 
 Pacific Lumber Co. v. Lang, 28 Or. 246, 52 Am. St. Rep. 780, 42 Pac. 
 799. The plaintiff's affidavit is conclusive; defendants cannot contra- 
 dict it, even though the plaintiff has filed supplemental affidavits: 
 Manby v. Robinson, L. R. 4 Ch. 347; Langston v. Boylston, 2 Ves. 
 101; Slo'.enson v. Anderson, 2 Ves. & B. 407; and see Fahie v. Lind- 
 say, 8 Or. 474. If collusion appears on the face of the bill, relief 
 will, of course, be denied: Marvin v. EUwood, 11 Paige, 365; Kerr 
 V. Union Bank, 18 Md. 396; Williams v. Halbert, 7 B. Mon. 184. 
 Pom. Eq. Jur., § 1328, and note. 
 
 81 The whole fund must be put at the disposal of the court; an 
 offer to bring in what may be found due is not sufficient: Mohawk 
 etc. R. R. V. Clute, 4 Paige, 384; Atkinson v. Manks, 1 Cow. 691; 
 Williams v. Walker, 2 Rich. Eq. 291, 46 Am. Dec. 53; Snodgrass v. 
 Butler, 54 Miss. 45; McGarrah v. Prather, 1 Blackf. 299; Starling v. 
 Brown, 7 Bush, 164; Ammendale Norm. Inst, v, Anderson, 71 MJ. 
 128, 17 Atl. 1030; Home Ins. Co. v. Caulk, 86 Md. 385, 38 Atl. 901; 
 Barroll v. Foreman, 86 Md. 675, 39 Atl. 273 ("this offer is required 
 to prevent an abuse of this proceeding, just as the affidavit that 
 there is no collusion"); Bliss v. French, 117 Mich. 538, 76 N. W. 73. 
 Contra, as to the omission being a ground for demurrer. Blue v. 
 Watson, 59 Miss. 619; Manx v. Bell, 6 Sim. 175. It seems that if the 
 petition contains such offer, actual payment of the fund into court is 
 not a condition precedent to an order of interpleader: Barnes v. 
 Bamberger, 196 Pa. St. 123, 46 Atl. 303. It was held in Farley v. 
 Blood, 30 N. H. 354, that in a suit concerning the defendants' rights 
 to a conveyance under a land contract, the plaintiff must offer to 
 convey, and must have the deeds executed ready for delivery. Pom. 
 Eq. Jur., § 1328, and note. 
 
 8 2 See Laing v. Zeden, L. R. 9 Ch, 736; Aldridge v, Thompson, 
 2 Brown Ch. 149; Cowtan v. Williams, 9 Yes, 107; Farley v. Blood, 
 30 N. H. 354; Manchester Print Works v. Stimson, 2 R. I. 415; Atkin- 
 son V. Manks, 1 Cow. 691; Canfield v. Morgan, Hopk. Ch. 224; Aymer 
 V. Gault, 2 Paige, 284; Badeau v. Rogers, 2 Paige, 209; Spring v. 
 Equitable Remedies, Vol. 1—7
 
 § 60 EQUITABLE EEMEDIES. 98 
 
 § 60. Bill in the Nature of a Bill of Interpleader. — A bill 
 in the nature of a bill of interpleader is one in which 
 the complainant seeks some relief of an equitable nature 
 concerning the fund or other subject-matter in dispute, 
 in addition to the interpleader of conflicting claimants. 
 The complainant is not required, as in strict inter- 
 pleader, to be an indifferent stake-holder, without in- 
 terest in the subject-matter.^^ It is essential, however, 
 that the facts on which he relies entitle him to equi- 
 table, as distinguished from legal, relief; he is not per- 
 mitted, under the guise of a bill in equity, to litigate 
 a purely legal claim or interest in the subject-matter.^'* 
 The additional relief most frequently granted is the re- 
 demption of a mortgage or other encumbrance on prop- 
 South Carolina Ins. Co., 8 Wheat. 268, 5 L. ed. 614; Long v. Superior 
 Court, 127 Cal. 686, 60 Pac. 464; Glaser v. Priest, 29 Mo. App. 1. 
 That the complainant is entitled to reasonable attorney's fees, see 
 Louisiana State Lottery Co. v. Clark, 16 Fed. 20, 4 Woods, 169; 
 Franco-American L. & B. Assn. v. Joy, 56 Mo. App. 433; Christian 
 V. National L. I. Co., 62 Mo. App, 35; Supreme Council Legion of 
 Honor v. Palmer, 107 Mo. App. 157, 80 S. W. 699; but see contra, 
 Helmken v. Meyer (Ga.), 45 S. E. 450. If the decree is irregular in 
 not directing payment into court and plaintiff's discharge, the plain- 
 tiff should not have costs out of the fund: Gardiner Sav. Inst. v. 
 Emerson, 91 Me. 535, 40 Atl. 551. As in all equity suits, costs are 
 within the discretion of the court, and depend somewhat upon the 
 circumstances of each case. Pom. Eq. Jur., § 1328, and note. 
 
 83 Nof singer v. Eeynolds, 52 Ind. 218; Van Winkle v. Owen, 54 
 N. J. Eq. 253, 34 Atl. 400, and cases cited in following notes. That, 
 aside from the plaintiff's interest in the subject-matter, the bill is 
 governed by the same principles as the strict bill of interpleader, see 
 Stephenson v. Burdett (W. Va.), 48 S. E. 846 (reviewing many cases); 
 but that the affidavit of non-collusion is not required, see Koppinger 
 V. O'Donnell, 16 E. I, 417, 16 Atl. 714; Van Winkle v. Owen, 56 N. 
 J. Eq. 253, 34 Atl. 400. 
 
 84 Killian v. Ebbinghaus, 110 U. S. 568, 4 Sup. Ct. 232, 28 L. 
 ed. 246 (relief demanded amounts to ejectment); Aleck v. Jackson, 
 49 N. J. Eq. 507, 23 Atl. 760; Parks v. Jackson, 11 Wend. 442; Mo- 
 hawk etc. E. Co. V. Clute, 4 Paige, 384j Bedell v. Hoffman, 2 Paige, 
 199.
 
 99 INTERPLEADEE. § 61 
 
 erty, when there are conflicting claimants to the debt 
 secured.®^ 
 
 § 61. Interpleader in Legal Actions.^^ — "In England 
 and in many of the American states a summary mode of 
 interpleader by motion and order in certain legal ac- 
 tions is authorized.^' These statutes substantially pro- 
 
 85 See Vyvyan v. Vyvyan, 30 Beav. 65; Crass v. Memphis etc. R. 
 Co., 96 Ala. 447, 11 South, 480; Eobson v. Du Bose, 79 Ga. 72, 4 S. E. 
 329 (taxes); Newhall v. Kastens, 70 111. 156 (mechanics' liens); Cur- 
 tis V. Williams, 35 111. App. 518; Nof singer v. Reynolds, 52 Ind. 218; 
 Board v. Scoville, 13 Kan. 17 (mechanics' liens); Illingworth v. 
 Eowe, 52 N. J. Eq. 360, 28 Atl. 456 (same); Van Winkle v. Owen, 
 54 N. J. Eq. 253, 34 Atl. 400 (judgment) ; Bedell v. Hoffman, 2 Paige, 
 199; Badeau v. Rogers, 2 Paige, 209; Parks v. Jackson, 11 Wend. 442; 
 Mohawk etc. E. Co. v. Clute, 4 Paige, 384 (taxes); Van Loan v. 
 Squires, 23 Abb. N. Cas. (N. Y.) 230; Dohnert's Appeal, 64 Pa. St. 
 311; Koppinger v. O'Donnell, 16 E. I. 417, 16 Atl. 714. See, also, 
 Union Trust Co. v. Stamford Trust Co., 72 Conn. 86, 43 Atl. 555, for 
 a bill of this character authorized by statute. 
 
 86 Pom. Eq. Jur., § 1329, and notes. This section of Pom. Eq. Jur. 
 is cited in Northwestern Mut. Life Ins. Co. v. Kidder, 162 Ind. 382, 
 70 N. E. 489. 
 
 87 The English statute of 1 & 2 Wm. IV, c. 58, § 1, allowed this 
 proceeding in actions of assumpsit, debt, trover, and detinue. For 
 cases under this statute see Frost v. Hey wood, 2 Dowl., N. S., 801; 
 l^alton V. Eailway Co., 74 E. C. L. (12 Com. B.) 458; Baker v. Bank 
 of Australasia, 1 Com. B., N. S., 515; Turner v. Kendal, 13 Mees. & W. 
 171. For the amendment made by the common-law procedure act of 
 1860, see ante, note 30, § 47. The American statutes mainly differ 
 with respect to the kinds of actions in which the proceedino' is al- 
 lowed. In a few states it is confined to actions on contract for 
 money: AUhama: Code 1876', §§ 2906, 2907; Code 1886, §§ 2610, 
 2611; Code 1896, § 2633; Jackson v. Jackson, 84 Ala. 343, 4 South. 
 174; Coleman v. Chambers, 127 Ala. 615, 29 South. 58; or to actions 
 for the recovery of personal property: Arkansas: Code 1874, §§ 
 4483, 4484; Iowa: 2 McClain's Stats. 1880, § 2572; Oregon: Gen. 
 Laws, 1872, p. Ill, § 3P. In several states the proceeding is allowed 
 in actions on contract, and in those for the recovery of specific per- 
 sonal property: California: Code Civ. Proc, § 336 (for recent 
 amendment, see ante, note under § 47); Idaho; Gen. Laws 1880-81, 
 § 201; Kansas: Dassler's Comp. Laws 1881, §§ 3564, 3565; Nebraska: 
 Brown's Comp. Stats. 1881, pp. 535, 536, § 48; Ohio: 2 Eev. Stats.
 
 § 61 EQUITABLE EEMEDIES. 100 
 
 Tide that in actions specified the defendant may show 
 by aflSdavit that the same thing or money is claimed by 
 another person besides the plaintiff ; that he has sued or 
 threatens to sue; that defendant is not in collusion ^Yith 
 him; and that defendant is ready and willing to bring 
 the thing or money into court. The court on motion 
 may order such claimant to be substituted as defend- 
 ant in the action in place of the original defendant. 
 It is universally held that these statutes do not at all 
 limit nor affect the equitable jurisdiction by suit; they 
 merely furnish another special, cumulative, and concur- 
 rent remedy. The ordinary type of these statutes does 
 not alter the settled doctrines concerning interpleader. 
 The statutory remedy is a mere substitute for the equi- 
 table remedy by suit, in the kinds of actions to which 
 it applies, and is governed by the same rules.^^ Of 
 
 1880, §§ 5016, 5017; Mississippi: Rev. Code, 1880, § 1578, Interpleader 
 by garnishee; Code 1880, § 2449; Dodds v. Gregory, 61 Miss. 351. 
 In others it embraces actions on contract, and actions for the recov- 
 ery of real or of personal property: Dakota: Eev. Codes 1877, p. 4'JL^ 
 § 91; Indiana: Eev, Stats. 1881, § 273; Mansfield v. Shipp, 128 Ind. 
 55, 27 N. E. 427; Minnesota: Stats. 1878, p. 725, § 131; New York: Code 
 Civ. Proc. (new code), § 820; Sickles v. "Wilmerding, 59 Hun, 375, 
 13 N. Y. Supp. 43 (what is an "action upon contract" within this 
 section); Laws 1882, c. 409, § 259, Laws 1892, c. 689, § 115, inter- 
 pleader in action against savings bank; see as to this act, Progres- 
 sive Handlanger Union v. German Sav. Bank, 23 Abb. N. C. 42, 7 
 N. Y. Supp. 3; affirmed, 57 N. Y. Super. Ct. (25 J. &. S.) 594, 8 N. Y. 
 Supp. 545; Faivre v. Union Dime Sav. Inst., 59 N. Y. Super. Ct. (27 
 J. & S.) 558, 18 N. Y. Supp. 423; Mahro v. Greenwich Sav. Bank, 16 
 Misc. Eep. 275, 38 N. Y. Supp. 126, reversed in 16 Misc. Eep. 537, 40 N 
 Y. Supp. 29; North Carolina: Battle's Eev. 1873, p. r56, § 65; Sniit^ 
 Carolina; Eev. Stats. 1873, p. 597, § 145. In two states it is author- 
 ized "in any action": Yirginia: Code 1873, c. 149, p. 1019; West 
 Virginia: 1 Kelly's Eev. Stats. 1879, c. 7, p. 238; Dickeshied v. Ex- 
 change Bank, 28 W. Va. 340. In some other states a similar proceed- 
 ing is authorized by statute in certain special cases: Colorado: 
 King's Code Civ. Proc, 1880, p. 151, § 404. 
 
 88 Oriental Bank v. Nicholson, 3 Jur., N. S., 857; Slaney v. Sid- 
 ney, 14 Mees. & W. 800; Tauten v. Groh, 4 Abb. App. 358; Vosburgh
 
 101 INTERPLEADER. § 61 
 
 course, the statutes may change the equitable doctrines ; 
 may enlarge their scope of operation ; and a few of them 
 have doubtless produced this effect, as in the clauses 
 introduced by amendment into the statutes of England 
 and California, already noticed."^* 
 
 V. Huntington, 15 Abb. Pr. 254; Johnson v. Maxey, 43 Ala. 521; 
 Nelson v. Goree's Admr., 34 Ala. 565; Starling v. Brown, 7 Bush, 
 164; Board of Education v. Scoville, 13 Kan. 17; Pfister v. Wade, 56 
 Cal. 43; Coleman v. Chambers, 127 Ala. 615, 29 South. 58; Fox y. 
 Sutton, 127 Cal. 515, 59 Pac. 939; Hartford Life Ann. Co. v. Cum- 
 mings, 50 Neb. 236, 69 N. W. 782; American Trust & S. Bank v. Thal- 
 heimer, 51 N. Y. Supp. 813, 29 App. Div. 170; Brock v. Southern Ry. 
 Co., 44 S. C. 444, 22 S. E. 601 (approving above text); Kinney v. 
 Hynds, 7 Wyo. 22, 49 Pac. 403, 52 Pac. 1081. That the statutory 
 remedy is concurrent, and has not done away with interpleader by 
 suit in equity, see, also, New England Mut. L, I. Co. v. Keller, 7 
 Civ. Proc. Rep, (N. Y.) 109; Cronin v. Cronin, 9 Civ. Proc. Rep. (N. 
 Y.) 137, 3 How. Pr., N. S., 184; Lane v. New York L. Ins. Co., 56 
 Hun, 92, 9 N, Y. Supp. 52; Dubois v. Union Dime Sav. Inst., 89 Hun, 
 382, 35 N. Y. Supp. 397; First Nat. Bank v. Beebe, 62 Ohio St. 41, 
 56 N. E. 485. That the statutory remedy is governed by the same 
 principles as the remedy in equity, see Pustet v. Flannelly, 60 How. 
 Pr. 67; Lawrence v. Watson, 8 Hun, 593; Schell v. Lowe, 75 Hun, 
 43, 23 Civ. Proc. Rep. 300, 26 N. Y. Supp. 991; Dinley v. McCullagh, 
 92 Hun, 454, 36 N. Y. Supp. 1007; Windecker v. Mut. L. Ins. Co., 43 
 N. Y. Supp. 358, 12 App. Div. 73; Burritt v. Press Pub. Co., 19 App. 
 Div. 609, 25 App. Div. 141, 46 N. Y. Supp. 95, 49 N. Y. Supp. 201. 
 As to the discretionary nature of the order, see Burritt v. Press 
 Pub. Co., 25 App. Div. 141, 49 N. Y. Supp. 201. 
 
 89 See ante, § 47, note 30; Tanner v. European Bank, L. R. 1 Ex. 
 261; Wells, Fargo & Co. v. Miner, 25 Fed. 533; Dickeshied v. Ex- 
 change Bank, 28 W. Va. 340. As to actions under codes of proce- 
 dure adopting the reformed procedure, see Cady v. Potter, 55 Barb. 
 463; Washington etc. Ins. Co. v. Lawrence, 28 How. Pr. 435; St. Louis 
 Life Ins. Co. v. Alliance Mut. L. Ins. Co., 23 Minn. 7; Board of 
 Education v. Scoville, 13 Kan. 17; Pfister v. Wade, 56 Cal. "43.
 
 EQUITABLE EEMEDIES, 102 
 
 CHAPTER III. 
 
 APPOINTMENT OF RECEIVERS. 
 
 ANALYSIS. 
 
 5§ 62-73. General principles regulating the appointment. 
 
 § 62. Definition of receiver; a provisional remedy. 
 
 S§ 63-67. The appointment discretionary. 
 
 § 64. Principles governing the court's discretion; imminent 
 danger. 
 
 § 65. Same; insolvency of defendant. 
 
 § 66. Same; probability of plaintiff's success in the suit. 
 
 § 67. Caution observed in making the appointment. 
 
 § 68. Applicant must come with "clean hands" and without 
 laches. 
 
 § 69. Inadequacy of legal remedy. , 
 
 § 70. BiU fully denied by answer. 
 
 § 71. Must be a suit pending. 
 
 SS 72-73. Statutory regulation of the appointment. 
 
 § 72. The supreme court of judicature act, in England. 
 
 § 73. Statutory provisions in the United States. 
 
 IS 74-76. Class I. 
 
 § 74. (1) Infants' estates. 
 
 § 75. (2) Lunatics' estates. 
 
 § 76. (3) Estates of decedents. 
 
 {§ 77-87. Class IL 
 
 § 77. In general. 
 
 S§ 78-85. (1) Receivers in settlement of partnership affairs. 
 
 § 78. In general. 
 
 § 79. Existence of partnership must be proved; and necessity 
 for dissolution must be shown. 
 
 I 80. Mere right to dissolution not sufBcient. 
 
 § 81. Exclusion from management as ground. 
 
 § 82. After dissolution; partner liquidating under agreement. 
 
 § 83. After dissolution; no agreement for liquidation. 
 
 § 84. Eeceiver on death of partner. 
 
 § 85. Miscellaneous. 
 
 § 86. (2) In partition and other suits between co-owners. 
 
 § 87. (3) In suits between conflicting claimants of land. 
 
 <S 88-133. Class IIL 
 
 S 88. In general.
 
 103 APPOINTMENT OF RECEIVEKS. 
 
 §§ 89-90. (1) Receivers in suits against trustees, for breach of 
 trust. 
 § 90. Same; assignees for benefit of creditors, 
 § 91. (2) In suits against executors and administrators. 
 SS 92-104. (3) Receivers in suits to enforce mortgages. 
 § 92. English rule. 
 § 93. General rule in United States; receiver appointed when 
 
 security inadequate and mortgagor insolvent. 
 § 94. Same; rule not followed in certain states. 
 § 95. Other grounds. 
 
 § 96. General considerations governing the appointment. 
 § 97. Effect of stipulations in the mortgage. 
 § 98. Time of the appointment. 
 
 § 99. Effect of assignment of the mortgaged premises; of ad- 
 ministration thereof: and of homestead right therein. 
 § 100. To what the receiver's title extends. 
 § 101. Receiver on application of junior mortgagee. 
 § 102. Same; right to rents as between prior and junior mort- 
 gagees. 
 § 103. Receivers in behalf of others than mortgagees. 
 § 104. Chattel mortgages. 
 SS 105-110. (4) Suits to enforce liens. 
 
 § 105. Suits to enforce equitable liens; statutory liens. 
 
 § 106. Judgii.ent creditors' suits; in general. 
 
 § 107. Same; receivers of debtor's property subject to prior 
 
 mortgage. 
 S 108. Same; nature of the property as affecting appointment — 
 
 Receiver of rents. 
 § 109. Same; miscellaneous cases. 
 
 § 110. Receivers in proceedings supplementary to execution. 
 § 111. (5) In suits for specific performance, or to enforce 
 
 vendor's lien. 
 S 112. (6) In behalf of unsecured creditors before judgment. 
 § 113. (7) In suits for rescission of contracts for sale of land. 
 § 114. (8) In suits to enforce payment of annuities. 
 § 115. (9) In suits for the protection of remaindermen. 
 S§ 116-131. (10) Appointment of receivers of corporations. 
 f§ 116-126. The inherent jurisdiction of equity. 
 § 116. In general. 
 
 § 117. Receivers of corporations cautiously appointed. 
 § 118. Receiver is an ancillary remedy; not appointed on the 
 
 petition of the corporation. 
 S 119. Suit for dissolution and receiver; no inherent jurisdic- 
 tion. 
 S 120. Stockholders' suit for breach of fiduciary duty by di- 
 rectors.
 
 EQUITABLE EEMEDIES. 104 
 
 f 121. Same; power, when not exercised. 
 
 § 122. Same; power, when exercised. 
 
 § 123. Receiver after dissolution. 
 
 § 124. Dissensions in the governing body of the corporation^ 
 and among the stockholders. 
 
 § 125. Receiver on application of creditors. 
 
 § 126. In foreclosure of mortgages on corporate property, 
 
 § 127. Receivers authorized by statutes. 
 §5 123-131. Railroad receivers, 
 
 § 128. In general. 
 §§ 129-131. In foreclosure of railroad mortgages. 
 
 § 129. In general. 
 
 § 130. Same; at what stage appointed. 
 
 § 131. Same; trustee's right to take possession on default as 
 affecting the question of appointment. 
 
 § 132. (11) Receivers in bankruptcy proceedings. 
 
 § 133. (12) Alimony and maintenance — Miscellaneous cases. 
 
 § 134. Fourth class. 
 §§ 135-147. Notice of the application for appointment. 
 
 § 135. A receiver is not appointed without notice to the de- 
 fendant. 
 
 § 136. Notice is necessary where appointment sought in pend- 
 ing suit. 
 
 § 137. To whom notice must be given; waiver; review of ex 
 parte appointment. 
 §§ 138-147. Cnses wherein notice is not necessary. 
 
 § 139. Same; tendency to restriction of ex parte appointments. 
 §§ 140-147. Lack of notice as affecting the appointment in the 
 various classes of cases. 
 
 § 140. In class I. 
 
 § 141. In class II — Partnership — Conflicting claimants of land, 
 §§ 142-147. In class III — Persons in position of trust or quasi trust. 
 
 § 143. In mortgage foreclosure. 
 
 § 144. In creditors' suits. 
 
 § 145. In suits by stockholders against corporations. 
 
 1 146. In suits by creditors against corporations. 
 
 § 147. Ex parte receivers of railroads. 
 §§ 148-153. Soloctinn nnd elisribility of receiver. 
 
 § 148. In general; not disturbed on appeal. 
 
 § 149. Appointment of person interested in the suit, 
 
 § 150. Appointment of master in chancery; of trustee; of soli- 
 citor. 
 
 § 151. Appointment of partner; of creditor. 
 
 § 152. Appointment of corporation officer. 
 
 § 153. Same; officers or stockholders appointed from necessity.
 
 105 APPOINTMENT OF RECEIVERS; IN GENERAL. S 62 
 
 § 62. Definition of Receiver; a Provisional Remedy. — . 
 **A receiver is a person standing indifferent between 
 the parties, appointed by the court as a quasi oflflcer or 
 representative of the court, to hold, manage, control, 
 and deal with the property which is the subject-matter 
 of or involved in the controversy, under the direction 
 of the court, during the continuance of the litigation."^ 
 
 1 Pom. Eq. Jur., § 1330, continuing: "either where there is no per- 
 son entitled competent to thus hold it — ^as, for example, in the case 
 of an infant, or in the interval before an executor or administrator 
 of a deceased owner is appointed; or where two or more litigants 
 are equally entitled, but it is not just and proper that either of 
 them should retain it under his control — as, for example, in some 
 suits between partners; or where a person is legally entitled, but 
 there is danger of his misapplying or misusing it — as, for example, 
 in some suits against an executor or administrator, or, under some 
 particular circumstances, in suits for the enforcement of a mortgage; 
 or he is appointed in like manner and under like circumstances for 
 the purpose of carrying into effect a decree of the court concerning 
 the property — as, for example, a decree for the winding up and set- 
 tlement of a corporation, or the decree in a creditor's suit." This 
 classification of the objects for which a receiver may be appointed 
 has teen adopted in the present work. "A receiver is an indifferent 
 person between parties, appointed by the court to receive the rents, 
 issues or profits of land or other thing in question in this court, 
 pending the suit, where it does not seem reasonable to the' court that 
 either party should do it. He is an officer of the court; his appoint- 
 ment is provisional. He is appointed in behalf of all parties, and 
 not of the complainant or of the defendant only. He is appointed 
 for the benefit of all parties who may establish rights in the cause. 
 The money in his hands is in custodia legis for whoever can make out 
 a title to it. It is the court itself which has the care of the property 
 in dispute. The receiver is but the creature of the court; he has no 
 powers except such as are conferred upon him by the order of his 
 appointment and the course and practice of the court": Booth v. 
 Clark, 17 How. 322, 331, 15 L. ed. 164. Se© the following cases, 
 among others, for definitions of the nature and purpose of the re- 
 ceiver's office and general statements as to the motives that influence 
 the court in making or refusing the appointment: Gayle v. Johnson, 
 80 Ala. 388; Ashurst v. Lehman, Durr & Co., 86 Ala. 370, 5 South. 
 731, and cases cited; Baker v. Backus 's Admr., 32 111. 79, 96; Jackson 
 V. King, 9 Kan. App. 160, 58 Pae. 1013; Corey v. Long, 12 Abb. Pr^
 
 § 62 EQUITABLE EEMEDIES. 106 
 
 As is said in a leading case, "By means of the appoint- 
 ment of a receiver, a court of Equity takes possession 
 of the property which is the subject of the suit, pre- 
 serves it from waste or destruction, secures and collects 
 the proceeds or profits, and ultimately disposes of them 
 according to the rights and priorities of those entitled.^ 
 
 "The receiver appointed is the officer and representa- 
 tive of the court, subject to its orders, accountable in 
 such manner and to such persons as the court may di- 
 rect, and having in his character of receiver no personal 
 interest, but that arising out of his responsibility for 
 the correct and faithful discharge of his duties. It is 
 of no consequence to him how, or when, or to whom, the 
 court may dispose of the funds in his hands, provided 
 the order or decree of the court furnishes to him a suf- 
 ficient protection. "3 
 
 "The order of appointment is in the nature, not of 
 an attachment, but of a sequestration ; it gives in itself 
 no advantage to the party applying for it over other 
 claimants; and operates prospectively upon rents and 
 profits which may come to the hands of the receiver, 
 as a lien in favor of those interested, according to their 
 rights and priorities in or to the principal subject out 
 of which those rents and profits issue. "^ 
 
 N. S. 427; Skinner v. Maxwell, &6 N, C. 45; Battle v. Davis, 66 N. C. 
 252. 
 
 2 Beverley v. Brooke, 4 Gratt. (Va.) 187, 208. 
 
 3 Beverley v. Brooke, 4 Gratt. (Va.) 187, 208. 
 
 4 Beverley v. Brooke, 4 Gratt. (Va.) 187, 208. "A receiver derives 
 his authority from the act of the court appointing him, and not from 
 the act of the parties at whose suggestion or by whose consent he 
 is appointed; and the utmost effect of his appointment is to put the 
 property from that time into his custody, as an officer of the court, 
 for the benefit of the party ultimately proved to be entitled, but not 
 to change the title, or even the right of possession, in the property": 
 Union Nat. Bank of Chicago v. Kansas City Bank, 136 U. S. 223, 
 10 Sup. Ct. 1013, 34 L. ed. 341, per Gray, J. For further statements
 
 107 APPOINTMENT OF KECEIVEES; IN GENEEAL. ^ 63 
 
 § 63. The Appointment Discretionary — "The appoint- 
 ment of a receiver is, as a general rule, discretionary.'^ 
 The discretion is not arbitrary or absolute; it is a 
 sound and judicial discretion, taking into account all 
 the circumstances of the case,^ exercised for the pur- 
 pose of promoting the ends of justice, and of protect- 
 
 of the doctrine that the appointment of the receiver does not affect 
 the title of either party, see Howell v. Hough, 4& Kan. 152, 26 Pac. 
 436; Jackson v. King, 9 Kan, App. 160, 58 Pac. 1013; Chase's Case, 
 1 Bland (Md.), 206, 17 Am. Bee. 277; Ellicott v. Warford, 4 Md. 
 85; Ellis v. Boston H. & E. E. E. Co., 107 Mass. 1, 28; Mays v. Eose, 
 Freem. Ch. (Miss.) 718; Bank of Mississippi v. Duncan, 52 Miss. 740, 
 743; Battle v. Davis, 66 N. C. 252, 256; Harman v. McMuUin, 85 Va. 
 187, 7 S. E. 349; Krohn v. Weinberger, 47 W. Va. 127, 34 S. E. 746; 
 Mead v. Burk, 156 Ind. 577, 60 N. E. 338; Bitting v. Ten Eyck, 85 
 Ind. 357; Ex parte Walker, 25 Ala. 81, 104. 
 
 5 The passage quoted is from Pom. Eq. Jur., § 1331; its language has 
 been frequently adopted by the courts. See, also, Pennsylvania Co. v. 
 Jacksonville T. & K. W. E. Co., 55 Fed. 131, 2 U. S. App. 606; Moore v. 
 Bank of British Columbia, 106 Fed. 574 (citing Pom. Eq. Jur., § 1331); 
 Crane v. McCoy, 1 Bond, 422, Fed, Cas. No. 3354; Forsaith Mach. Co. v. 
 Hope Mill Lumber Co., 109 N. C. 576, 13 S. E. 869; Warren v. Pitts, 114 
 Ala, 65, 21 South, 494; Provident Life Ins. Co. v. Keniston, 53 Neb. 
 86, 73 N. W. 216; Woodward v. Woodward, 17 Ky. Law Eep. 464, 
 31 S. W. 734 (though the appointing power was given by statute); 
 Fluker v. Emporia E. E. Co., 48 Kan. 587, 30 Pac. 18; Simmons Hard- 
 ware Co. V. Waibel, 1 S. D. 488, 36 Am. St. Eep. 755, 47 N. W. 418, 
 814, 11 L. R. A. 267 (citing Pom. Eq. Jur., § 1331); Pullan v. Cin- 
 cinnati etc. E, E. Co., 4 Biss. 47, Fed. Cas. No. 11,461; Chicago etc. 
 Oil & Min. Co. v. United States Petroleum Co., 57 Pa. St. 83 (posses- 
 sion under lease not disturbed). 
 
 6 Owen V. Homan, 4 H. L. Cas. 997; Norris v. Lake, 89 Va. 513, 
 16 S. E. 663; Meyer v. Thomas et al., 131 Ala. Ill, 30 South. 89; 
 Vose V. Eeed, 1 Woods, 647, Fed. Cas. No. 17,011; Hanna v. Hanna, 
 89 N. C. 68 (allowing receiver for necessary part) ; May v. Ease, 
 (Miss.), Freem. Ch. 703 (sale in fraud of creditors). In Vose v. 
 Eeed, 1 Wood, 650, Fed. Cas. No. 17,011, the court said: "But all 
 the circumstances of the case are to be taken into consideration, 
 and if the case be such that a greater injury would ensue from the 
 appointment of a receiver than from leaving the property in the 
 hands now holding it, or if any consideration of propriety or conven- 
 ience render the appointment of a receiver improper or inexpedient, 
 none will be appointed."
 
 § 64 EQUITABLE EEMEDIES. 108 
 
 ing the rights of all the parties interested in the con- 
 troversy and the subject-matter,"^ and based upon the 
 fact that there is no other adequate remedy or means 
 of accomplishing the desired objects of the judicial pro- 
 ceeding." Therefore, the discretion of the court in ap- 
 pointing a receiver will not be interfered with by an 
 appellate court, unless it is clear that it has been abused 
 or exercised in a manner inconsistent with well-estab- 
 lished rules governing such application.® 
 
 § 64. Principles Governing the Court's Discretion; Im- 
 minent Danger. — The general principles which should 
 
 7 American Biscuit & Mfg. Co. v. Klatz, 44 Fed. 721 (will not 
 aid improper or illegal scheme); McGeorge v. Big Stone Gap Imp. 
 Co. 57 Fed. 262 (probability of injury to defendant); Fort Payne 
 Furnace Co. v. Fort Payne Coal Co., 96 Ala. 472, 38 Am. St. Rep. 109, 
 11 South. 439 (corporation not divested of lands it intended sell- 
 ing; in commenting on the exercise of the court's discretion in ap- 
 pointing receivers, the court quotes Pom. Eq. Jur., § 1331, with ap- 
 proval); Sales v. Lusk, 60 Wis. 490, 19 N. W. 362 (subsequent mort- 
 gagees protected). 
 
 8 Mead v. Burke, 156 Ind. 577,60 N. E. 338 ("there must be a plain 
 abuse, to the prejudice of the complaining party"); Rider v. Bagley, 
 84 N. Y. 461 (fraud on lower court); Bagley v. Scudder, 66 Mich. 
 97, 33 N". W. 47 (approved in Dutton v. Thomas, 97 Mich. 93, 56 
 N. W. 229); Fluker v. Emporia R. R. Co., 48 Kan. 587, 30 Pac. 18 
 (discretion not abused); Naylor v. Sidener, 106 Ind. 179, 6 N. E. 
 345 (weight of evidence insufficient) ; Crawford v. Ross, 39 Ga. 44 
 (not unless illegal); Heinze v. Butte & Boston Consolidated Min. Co., 
 126 Fed. 1, 11, 61 C. C. A. 63 (citing Beaumont v. Beaumont, 166 Pa. 
 St. 615, 31 Atl. 336; Nimocks v. Shingle Co., 110 N. C. 230, 14 S. E. 
 684; Sanders v. Slaughter, 89 Ga. 34, 14 S. E. 903); Woods v. Grayson, 
 16 App. D. C. 174. But see contra, Meyer v. Thomas, 131 Ala. Ill, 
 30 South. 89; Pelzer v. Hughes, 27 S. C. 408, 3 S. E. 781; De Walt 
 V. Kinard, 19 S. C. 286; Simmons Hardware Co. v. Waibel, 1 S. D. 
 488, 36 Am. St. Rep. 755, 47 N. W. 814, 11 L, R. A. 267 (lower court 
 refused to take possession of copy of secret code) ; Perrin v. Lepper, 
 56 Mich. 351, 23 N. W. 39, "The discretion is not so absolute that 
 it may not be reviewed, and its exercise, if improper, reversed": 
 4 Pom. Eq. Jur., § 1331, note 1, citing La Societe Francaise v. Dis- 
 trict Court, 53 Cal. 495; Milwaukee R. R. v. Soutter, 2 Wall. 521, 17 
 L. ed. 860.
 
 109 APPOINTMENT OF EECEIVEES; IN GENERAL. §64 
 
 govern the court in the exercise of its discretion have 
 been thus formulated in a leading case: The plaintiff 
 must show, first, either that he has a clear right to the 
 property itself, or that he has some lien upon it ; or that 
 the property constitutes a special fund to which he has 
 a right to resort for the satisfaction of his claim; and 
 secondly, that the possession of the property by the de- 
 fendant was obtained by fraud; or that the property 
 itself, or the income arising from it, is in danger of loss 
 from the neglect, waste, misconduct or insolvency of 
 the defendant* The element of danger is an important 
 
 9 May V, Eose, Freem. Ch. (Miss.) 703, 718; Steele v. Aspy, 128 
 Ind. 367, 27 N. E. 739; State v. Union Nat. Bank, 145 Ind. 537, 57 
 Am. St. Eep. 209, 44 N. E. 585. "As a general rule, a receiver will 
 be appointed for the purpose of protecting the fund when the com- 
 plainant has an equitable interest in the subject, and the defendant 
 having possession of the property is wasting it, or removing it out of 
 the jurisdiction of the court": Vose v. Eeed, 1 Woods, 647, Fed, Cas. 
 No. 17,011, per Bradley, J. See, also, Lancaster v. Asheville St. Ey. 
 Co., 90 Fed. 129, 133; Eyder v. Bateman, 93 Fed. 16. "The power 
 to appoint a receiver is most usually called into action either to pre- 
 vent fraud, save the subject of litigation from material injury, or 
 rescue it from threatened destruction": Baker v. Backus 's Admr., 
 32 111. 79, 96. That the plaintiff cannot have a receiver when he has 
 parted with his entire interest in the property, see Steele v. Aspy, 
 supra; Smith v. Wells, 20 How. Pr. 158. 
 
 In Pom. Eq. Jur., § 1331, note, are the following quotations and 
 comment: "In Bainbrigge v. Baddeley, 3 Macn. & G. 413, 419, the 
 court, speaking of the general grounds for the appointment of a re- 
 ceiver, said: 'There are, I apprehend, two grounds, and two only: 1. 
 That there is a reasonable probability of success on the part of the 
 plaintiff; and 2. That the property, the subject of the suit, is in dan- 
 ger.' In Blondheim v. Moore, 11 Md. 365, the following rules con- 
 trolling the exercise of the discretion were laid down, which have 
 been frequently quoted as a correct generalization: '1. That the power 
 of appointment is a delicate one, and is to be exercised with great 
 circumspection; 2. That it must appear the claimant has a title to the 
 property, and the court must be satisfied by affidavit that a receiver 
 is necessary to preserve the property; 3. That there is no case in 
 which the court appoints a receiver merely because the measure can 
 do no harm; 4. That fraud or imminent danger, if the intermediate
 
 § 64 EQUITABLE REMEDIES. 110 
 
 consideration ; a remote or past clanger will not suffice 
 as a ground for the relief, but there must be a well- 
 grounded apprehension of immediate injury. Nor will 
 the court act upon a possible danger only; the danger 
 must be great and imminent, and demanding immediate 
 relief.^" 
 
 It has been truly said that a court will never appoint 
 a receiver merely on the ground that it will do no 
 harm.^^ This would seem to follow naturally from the 
 rule that the appointment is primarily to prevent im- 
 minent injury.^2 
 
 possession should not be taken by the court, must be clearly proved; 
 and 5. That unless the necessity be of the most stringent character, 
 the court will not appoint a receiver until the defendant is first 
 heard in response to the application.' These rules, however, must be 
 taken with some reservations; they are certainly too strong to be of 
 universal application, especially the fourth. There are classes of 
 cases in which a receiver is appointed almost as a matter of course, 
 although no fraud nor imminent danger is proved." 
 
 10 Lancaster v. Asheville St. Ey. Co., 90 Fed. 129, 133. See, also. 
 Mead v. Burk, 156 Ind. 577, 60 N. E. 338; Kean v. Colt, 5 N. J. Eq. 
 365; Orphan Asylum v. McCartee, Hopk. Ch. (N, Y.) 429; Pelzer v. 
 Hughes, 27 S. C. 408, 3 S. E. 781; City Nat. Bank v. Dunham, 18 Tex. 
 Civ. App. 184, 44 S. W. 605; Morris v. Lake, 89 Va. 513, 16 S. E. 663; 
 Beecher v, Bininger, 7 Blatchf. 170, Fed. Cas. No. 1222; Kelley v. 
 Boettcher, 89 Fed. 125; Ft. Payne Furnace Co. v. Fort Payne Coal 
 etc. Co., 96 Ala. 473, 38 Am. St. Rep. 109, 11 South. 439, and cases 
 cited. "It is well settled that when there is reasonable ground to 
 apprehend that pending litigation the property may be so disposed 
 of as to deprive the complaining party of the fruit of his victory 
 when had, a court of equity will secure the property, or in a proper 
 case have it sold and secure the fund arising from it by the ap- 
 pointment of a receiver, or by an injunction, and when need be, by 
 both": Ellctt v. Newman, 92 N. C. 519, 523. That the requirement 
 of imminent danger is not universal, see end of last note. 
 
 11 Orphan Asylum Society v. McCartee et al., 1 Hopk. Ch. 429; ap- 
 proved in Clark v. Ridgely, 1 Md. Ch. 70; Blondheim v. Moore, 11 Md. 
 365; Owen v. Homan, 4 H. L. Cas. 997 (unless the property is not in 
 the enjoyment of either party). 
 
 12 Yet, the assurance that no harm will follow tends to aid the 
 appointment, where there are other proper grounds: Nimocks t.
 
 Ill APPOINTMENT OF EECEIVEKS; IN GENERAL. §§ 65, 66 
 
 § 65. Same; Insolvency of Defendant. — While insol- 
 vency, alone, is not a ground for the appointment of a 
 receiver, unless it has been so declared by statute,''"^ 
 "the solvency or insolvency of the party to be affected 
 is an important consideration with a court of equity, in 
 all cases guiding, if it does not govern, its discretion, 
 in the appointment of receivers."^ ^ "The insolvency of 
 a defendant in possession of property involved in litiga- 
 tion in any case necessarily intensifies the probability 
 of loss to the complainant, and will serve, at least, to 
 show that his remedy at law, for any loss or injury that 
 may be sustained, would be inadequate."^ ^ 
 
 § 60. Same; Probability of Plaintiff's Success in the Suit. 
 While it is true, as a general rule, that in making or 
 refusing the appointment of a receiver, the court will 
 
 Grimm, 110 N. C. 230, 14 S. E. 684 (refusing to discharge receiver); 
 American Biscuit & Mfg. Co. v. Klotz, 44 Fed. 721 (appointing re- 
 ceiver of "trust monopoly"). 
 
 13 Lawrence Iron-Works Co. v. Rockbridge Co., 47 Fed. 755; Me- 
 Creery v. Berney Nat. Bank, 116 Ala. 224, 67 Am. St. Eep. 105, 22 
 South. 577. 
 
 14 Warren v. Pitts, 114 Ala. 65, 21 South. 494; Thompson v. Tower 
 Mfg. Co., 87 Ala. 733, 6 South. 928; Irwin v. Everson, 95 Ala. 64, 10 
 South. 320; Stillwell v. Savannah Grocery Co., 88 Ga. 100, 13 S. E. 963; 
 Chase's Case, 1 Bland (Md.), 206, 213, 17 Am. Dec. 277. 
 
 15 Mead v. Burk, 156 Ind. 577, 60 N. E. 338. In this case the 
 court holds that "insolvency of a person in the possession or en- 
 joyment of the use of property for which a receiver is sought is not, 
 as a general rule, indispensable to a successful prosecution of the 
 
 application The probability of a fierce and long-continued 
 
 litigation in respect to the rights of property will sometimes justify 
 a court in withdrawing it from the operation of such prolonged con- 
 test by placing it for preservation or security in charge of a receiver 
 for the benefit of all parties concerned therein, until there can be a 
 full and final adjudication of their rights"; citing Crane v. McCoy, 
 1 Bond, 422, Fed. Cas. No. 3354. To the effect that the insolvency of 
 the debtor is necessary to justify the appointment, when the collec- 
 tion of a debt is the sole purpose of the suit, see Joseph Dry Goods 
 Co. V. Hecht, 120 Fed. 760, 57 C. C. A. 64.
 
 § 67 EQUITABLE EEMEDIES. 112 
 
 not forestall or anticipate the decision which may be 
 made on final hearing, yet the primary inquiry is 
 whether there is shown a reasonable probability that 
 the plaintiff asking the appointment will ultimately 
 succeed in obtaining the general relief sought by the 
 suit. If ultimate success is a matter of grave doubt, 
 or if it be clear that the general relief sought cannot 
 be obtained, the appointment ought not to be made.^^ 
 This principle, however, does not involve the necessity 
 that the pleadings be drawn with technical accuracy. 
 The bill may be subject to demurrer for the want of 
 proper parties, or because of defects of form or the ab- 
 sence of substantial allegations, — insufficiencies cura- 
 ble by amendment. These insufficiencies, of themselves, 
 do not form an impediment to the appointment of a 
 receiver, if a case be made by a party having inter- 
 ests to be protected and preserved entitling him to 
 the general relief which is prayed.^'^ 
 
 § 67. Caution Observed in Making the Appointment. — 
 The appointment of a receiver is one of the most re- 
 sponsible duties which a court of equity is called upon 
 to perform ; and while resting within the sound, judicial 
 discretion of the court, the power is, or should be, exer- 
 
 16 Pom. Eq. Jur., § 1331; Bank of Florence v. United States Sav- 
 ings & Loan Co., 104 Ala. 297, 16 South. 110; Eandle v. Carter, 62 
 Ala. 95. See, to the same effect, Owen v. Homan, 3 Macn. & G-. 378, 
 412, affirmed 4 H. L. Gas. 997, quoted in 4 Pom. Eq. Jur., § 1331, 
 note 2; Bainbrigge v. Baddeley, 3 Macn. & G. 413; Kelley v, 
 Boettcher, 89 Fed. 125, 129; People v. Weigley, 155 111. 491, 40 N. E. 
 300; Mead v. Burk, 156 Ind. 577, 60 N. E. 338; Sheridan Brick Works 
 V. Marion Trust Co., 157 Ind. 292, 87 Am. St. Eep. 207, 61 N. E. 666; 
 Pelzer v. Hughes, 27 S. C. 408, 3 S. E. 781; Norris v. Lake, 89 Va. 
 513, 16 S. E. 663; Beecher v. Beninger, 7 Blatchf. 170, Fed. Cas. No, 
 1222; Chase's Case, 1 Bland (Md.), 206, 213, 17 Am. Dec. 277. 
 
 17 Bank of Florence v. United States Savings and Loan Co., 104 
 Ala. 297, 16 South. 110; Ex parte Walker, 25 Ala. 81.
 
 113 APPOINTMENT OF EECEIVEES; IN GENERAL. { 67 
 
 cised with great caution and circumspection.^® It is 
 well said by the supreme court of Alabama:^* "Prop- 
 erty is not taken from a party in possession, claiming in 
 good faith^" the right to it, before judgment in actions 
 at law, without first exacting from him at whose suit it 
 is done ample security for the protection of his adversary 
 against injury. In courts of equity, writs of injunction 
 and equitable attachment are allowed only upon like 
 conditions. And whenever the plaintiff's rights are dis- 
 puted, the court should rarely appoint a receiver to take 
 the property from .the defendant ; receivers being ordi- 
 narily appointed without bonds of indemnity from those 
 procuring the appointment to be made, and only upon the 
 bond of the receiver for his fidelity as such. There has 
 been, indeed, too much facility on the part of chancellors 
 and registers in the exercise of this authority." The rea- 
 ls Ashurst V. Lehman, 86 Ala. 370, 5 South. 731 (receiver allowed 
 in case of mortgaged crops) ; note to Cameron v. Groveland Imp. 
 Co., 72 Am. St. Eep. 34; Corbin v. Thompson, 141 Ind. 128, 40 N. E. 
 533 ("the power is one of the highest vested in a court of chancery 
 and is only exercised where justice would in all probability be de- 
 feated by withholding it"); EoUins v. Henry, 77 N. C. 469 (same); 
 Gilbert v. Block, 51 111. App. 516; Williamson v. Wilson, 1 Bland 
 (Md.), 418; Holmes v. Stix, 104 Ky. 351, 47 S. W. 243 (this applies 
 in the extreme when the property is held jointly). 
 
 19 Briarfield Iron Works v. Foster, 54 Ala. 622. This is quoted 
 approvingly in Fort Payne Furnace Co. v. Fort Payne Coal & Iron 
 Co., 96 Ala. 472, 38 Am. St. Eep. 109, 11 South. 439 (refusing to take 
 possession of lands of a corporation). To same effect, Moritz v. 
 Miller, 87 Ala. 331, 6 South. 269 (refusing a receiver on information 
 and belief); approved in Lindsay v. American Mtg. Co., 97 Ala. 412, 
 11 South. 770. 
 
 20 Where the one against whom the remedy is sought is acting 
 fraudulently, it is a common ground of equitable interference: 
 Brundage v. Home Savings etc. Assn., 11 Wash. 277, 39 Pac. 666 
 (mortgaged property); Mays v. Eose, Freem. Ch. (Miss.) 703; Fur- 
 long V. Edwards, 3 Md. 99 (fraud must be clearly proved); William- 
 son V. Wilson, 1 Bland (Md.), 418. 
 
 Equitable Remedies, Vol. 1—8
 
 9 67 EQUITABLE EEMEDIES. 114 
 
 son for the necessity of exercising such great caution is 
 clearly stated by Baldwin, J., in Beverly v. Brooke :^^ 
 "In the exercise of this summary jurisdiction, a court of 
 equity reverses, in a great measure, its ordinary course 
 of administering justice; beginning at the end, and levy- 
 ing upon the property a kind of equitable execution, 
 by which it makes a general, instead of a specific, appro- 
 priation of the issues and profits, and afterwards deter- 
 mining who is entitled to the benefit of its quasi-pTO- 
 cess. But, acting, as it often must of necessity, before 
 the merits of the cause have been fully developed, and 
 not infrequently, where the proper parties in interest 
 are not all before the court, it proceeds with much 
 caution and circumspection, in order to avoid disturb- 
 ing, unnecessarily or injuriously, legal rights and equi- 
 table priorities." McKay, J., in Crawford v. Ross and 
 Ross, 39 Ga. 44, said: "The exercise of the extraordi- 
 nary powers granted to the Chancellor of the appoint- 
 ment of receivers is a very delicate and responsible 
 duty. It is a serious interference, without the verdict 
 of a jury and without a regular hearing, with the prima 
 facie rights of the citizen, and should only be granted 
 to prevent manifest wrong."^^ 
 
 21 Beverley v. Brooke, 4 Gratt. (Va.) 187. 
 
 22 Crawford v. Koss, 39 Ga. 44. See, also, Blondheim et al. v. 
 Moore, 11 Md. 365 (information and belief insufficient); Mays v. 
 Rose et al. (Miss.), Freem. Ch. 703 (rights of both parties consid- 
 ered); Furlong v. Edwards, 3 Md. 99 (mortgage); Fox v. Curtis, 34 
 Atl. 952, 176 Pa. St. 52 (partnership creditors); State v. Eoss, 122 
 Mo. 435, 25 S. W. 947, 23 L, E. A. 534 (rights in the insolvency of 
 railroad corporation). Atkinson, J., in Dozier v. Logan, 101 Ga. 
 173, 28 S. E. 612, says: "The appointment of a receiver is recog- 
 nized as one of the harshest remedies which the law provides for 
 the enforcement of rights, and is allowable only in extreme cases, 
 and under circumstances where the interest of the creditors is ex- 
 posed to manifest peril. The courts, of late years, are drifting away 
 from the landmark which in former years marked the line of di- 
 vision between the power of chancery courts to seize the propertj
 
 115 APPOINTMENT OF EECEIVERS; IN GENEEAL. i 68 
 
 § 68. Applicant Must Come with "Clean Hands" and 
 "Without Laches. — The rule that one who comes into 
 equity must come with clean hands applies to an ap- 
 plicant for a receiver.2^ An applicant for a receiver 
 must not be guilty of laches before bringing^^ his bill, 
 or pending the application.^' 
 
 of an individual through the instrumentality of a receiver, and the 
 right of the individual himself to retain possession until, by the 
 judgment of the court, his property could be judicially appropriated 
 to purposes inconsistent with his individual possession. In the ex- 
 ercise of the great discretionary power conferred upon our brethren 
 of the circuit bench, with respect to such matters, they cannot be 
 too cautious, and unless there is immediate and present necessity 
 for such action, the appointment of a receiver should be refused." 
 See, also, American Investment Co. v. Ferrar, 87 Iowa, 437, 54 N. W. 
 361 (receiver of mortgaged property refused); Clark v, Raymond, 
 86 Iowa, 61, 53 N. W. 354 (same); Roberts v. Washington Nat. 
 Bank, 9 Wash. 12, 37 Pac. 26 ("the court should restrict, rather 
 than extend, the growing tendency" to appoint receivers); White- 
 head V. Hale, 118 N. C. 601, 24 S. E. 360. 
 
 The rights of both parties should be carefully considered: Vose v. 
 Reed, 1 Woods, 650, Fed. Cas. No. 17,011; Provident Life & T. Co. 
 V. Keniston, 53 Neb. 86, 73 N. W. 216 (mortgaged premises); Lan- 
 caster v. Asheville St. Ry. Co., 90 Fed. 129 (railroad corporation; 
 apprehension of danger to plaintiff must be well grounded, and of 
 "immediate" injury); Pullan v. Cincinnati etc. R. R. Co., 4 Biss. 
 47, Fed. Cas. No. 11,461 (a receiver should never be appointed in 
 case of mortgage foreclosure, where the property is certain to pro- 
 duce the amount on sale). The statement set forth in the text has 
 been repeatedly quoted as expressing the proper view: See Latham 
 v. Chaffee, 7 Fed. 525; note to Cameron v, Groveland Imp. Co., 72 
 Am. St. Rep. 34. 
 
 23 Thus, failure, on the part of executors, to have a sale recorded, 
 allowing the vendee in the meantime to expend money in improve- 
 ments, will defeat their right to a receiver: Bennallack v. Richards, 
 125 Cal. 427, 58 Pac. 651. Where the object of the applicant is 
 illegal: American Biscuit & Mfg. Co. v. Klotz, 44 Fed. 721; Cameron 
 V. Havemeyer, 12 N. Y. Supp. 126, 25 Abb. N. C. 438 (trust ad- 
 judged illegal, the stockholders have a right to a receiver). 
 
 24 Thus, where the injury occurred two years before suit brought, 
 appointment was refused: Kean v. Colt, 5 N. J. Eq. 365. 
 
 25 An application having been allowed to sleep for six years, was 
 dismissed, though evidence had been taken in the meantime: Hood
 
 Si 69, 70 EQUITABLE EEMEDIES. 116 
 
 § 69. Inadeqnacy of legal Remedy It is one of the 
 
 fundamental principles on which receivers are granted 
 that the applicant shall have no plain, adequate, and 
 complete remedy at law.^^ Therefore, as "equity will 
 not help those who have power to help themselves,"^'^ 
 he must, as a usual thing, have exhausted his legal reme- 
 dies prior to his application for equitable relief.^^ This 
 applies both to the original chancery practice and to the 
 reformed procedure.^* The objection to the appoint- 
 ment being made on these grounds should be taken be- 
 fore the appointment.^^ 
 
 § 70. Bill Fully Denied by Answer. — It is a well-estab- 
 lished rule that where the equities of the bill have been 
 fully met and denied in every material part by the de- 
 fendant's sworn answer, the plaintiff is not entitled to 
 the appointment of a receiver, unless he overcomes the 
 
 V. First Nat. Bank of Fremont, 29 Fed. 55; Brown v. Lake Superior 
 Iron Co., 134 U. S. 530, 10 Sup. Ct. 604, 33 L. ed. 1021 (not allowed 
 to contest receiver's right to appointment after nine months); Tib- 
 bals V. Sargeant, 14 N. J. Eq, 449 (delay of two years after notice). 
 
 26 Fort Payne Furnace Co. v. Ft. Payne Coal & Iron Co., 96 Ala. 
 472, 38 Am. St. Eep. 109, 11 South. 439; approved, Etowah Min. 
 Co. V. Wills Valley Min. & Mfg. Co., 106 Ala. 492, 17 South. 522 
 (corporation creditors); Bennallack v. Eicharda et al., 125 Cal. 427, 
 58 Pac. 65 ("a departure from the rule can only be justified upon 
 strong grounds of judicial necessity"); Spooner v. Bay St. Louis 
 Syndicate, 44 Minn. 401, 46 N. W. 848 (corporation creditors); Eice 
 V. St. Paul etc. E. E. Co. 24 Minn. 467 (receiver of railroad); Cahn 
 V. Johnson, 12 Tex. Civ. App. 304, 33 S. W. 1000. 
 
 27 Sollory V. Learer, L. E. 9 Eq, Cas. 22; Importers' Nat. Bank v. 
 Quackenbush, 143 N. Y. 567, 38 N. E. 728. 
 
 28 Importers' etc. Nat. Bank v. Quackenbush, 143 N. Y, 567, 38 
 N. E. 728. 
 
 2» Spooner v. Bay St. Louis Syndicate, 44 Minn. 401, 46 N. W. 
 848 (corporation creditors). 
 
 30 Brown v. Lake Superior Iron Co., 134 U. S. 530, 10 Sup. Ct. 
 604, 33 L. ed. 1021 (where a bill was suffered to be taken pro con- 
 fCiSO, defendant could not object nine months later).
 
 117 APPOINTMENT OF EECEIVERS; IN GENERAL. S 71 
 
 denials by such further proof as will tend to establish 
 his bill.^^ The usual weight allowed to answers in 
 chancery is due the defendant in this class of cases,^^ 
 and they are conclusive until overcome by testimony.^* 
 
 § 71. Must be a Suit Pending — The appointment of a 
 receiver being made merely to assist in the ultimate 
 disposition of the property in controversy, a receiver 
 will not ordinarily^^ be appointed unless there is a suit 
 pending, concerning the subject-matter in regard to 
 which the receiver is sought.^ ^ Thus an application by 
 
 31 Sweeny v. Mayhew, 6 Idaho, 455, 56 Pac. 85; Crombie v. Or- 
 der of Solon, 157 Pa. St. 588, 27 Atl. 710 (bill alleging illegality of 
 corporation election); Henn v. Walsh, 2 Edw. Ch. (N, Y.) 129 (part- 
 nership) ; Whitehouse v. Point Defiance T. & E. Ey. Co., 9 Wash. 
 558, 38 Pac. 152 (stating the reason to be that "the plaintiff, hav- 
 ing addressed himself to the conscience of the defendant, has made 
 him a witness, and must take his answer as true, unless he can 
 overcome it"); Wilson v. Maddox, 46 W. Va. 641, 33 S. E. 775. 
 
 32 Thompson v. Diffenderfer, 1 Md. Ch. 489 (though the truth 
 of the answer is attacked by the plaintiff), 
 
 33 Voshell & Heaton v. Hyman & Gross, 26 Ala. 83. It haa 
 teen said that in such a case "the question is no longer addressed to 
 the discretion of the court; but it is a judicial error to appoint a 
 receiver when the charges are thus met"; Wilson v. Maddox, 46 
 W. Va. 641, 33 S. E. 775; Sweeny v. Mayhew, 6 Idaho, 455, 56 
 Pac. 85. 
 
 34 The case of receivers appointed over the estates of lunatics and 
 infants is an exception. 
 
 35 The suit must be one of equitable cognizance: Miller v. Per- 
 kins, 154 Mo. 629, 55 S. W. 874("jurisdiction to appoint a receiver 
 cannot be acquired simply by a petition therefor, nor by the ap- 
 pointment of one"). In American Loan & Trust Co. v. Toledo etc. 
 Co., 29 Fed. 416, it is said: "Whatever may be the powers of a court 
 of equity to construct railroads or manage them through receivers, 
 in form, at least, these powers must be exercised as an adjunct to 
 the jurisdiction of enforcing some of the well-understood equitable 
 rights of the parties in relation to these contracts." See Barber v. 
 Interi^ational Co. of Mexico, 73 Conn. 587, 48 Atl. 758; Guy v. 
 Doak, 47 Kan. 236, 27 Pac. 968; Burnes v. City of Atchison, 48 
 Kan. 507, 29 Pac. 579 (a receiver will not be appointed merely to 
 bring- '^uit); State v. Union Nat. Bank, 145 Ind. 537, 57 Am. St. Eep.
 
 S 71 EQUITABLE EEMEDIES. 118 
 
 "a debtor for the appointment of a receiver to manage 
 and carry on its business, so that the creditors cannot 
 enforce their legal rights in the courts of the country, 
 and not a petition stating a cause of action, either in 
 law or equity, in which, as incident thereto, a receiver 
 be appointed," was dismissed.^^ 
 
 209, 44 N. E. 585; In re Hancock, 27 Hun, 575 (the suit must be 
 pending in the court where the application is made) ; Popp v, Daisy 
 Gold Min. Co., 27 Utah, 83, 74 Pac. 426 (no suit pending); Grand 
 Island Electric L., I. & C. S. Co. (Neb.), 94 N. W. 136 (not in suit 
 brought merely for appointment) ; Hay v. McDaniel, 26 Ind. App. 
 683, 60 N. E. 729 (same). What constitutes the pendency of an ac- 
 tion ia largely a question of practice; but see llellebush v. Blake, 
 119 Ind. 349, 21 N. E. 976, where the right to a receiver in a legal 
 proceeding being given by statute, it was held that though the 
 notice or service was defective, and the defendant had entered only 
 a special appearance, the action was pending. As to service gener- 
 ally, where the property is within the jurisdiction of the chancery 
 court, see Quarl v. Abbett, 102 Ind. 233, 52 Am, Eep. 662, 1 N. E. 
 476; Pennoyer v. Neff, 95 U. S. 729, 24 L, ed. 565. See Hardy v. 
 McClellan, 53 Miss. 507 (in case of ex parte application); Mer- 
 chants' & Mfg. Nat. Bank of Detroit v. Kent Circuit Judge, 43 Mich, 
 292, 5 N. W. 627 (suit must concern the property); approved in Jones 
 V. Schall, 45 Mich. 379, 4 N. W. 68 (criticising the appointment of 
 receivers on ex parte application) ; Arnold v. Bright, 41 Mich. 210, 
 2 N. W. 16 (same) ; note to Cortelyou v. Hathaway, 64 Am. Dec. at 
 482; Pressley v, Harrison, 102 Ind. 19, 1 N, E. 188; approved in 
 Sullivan Election etc. Co. v. Blue, 142 Ind. 407, 41 N. E. 805; Win- 
 chester etc. Co. V. Gordon, 143 Ind. 681, 42 N. E. 914. That subse- 
 quent filing of the bill, and giving of the requisite bond by the re- 
 ceiver, cannot impart validity to the void act of his appointment be- 
 fore the bill was filed, see Harwell v. Potts, 80 Ala. 70. Clearly, a 
 receiver should not be appointed after the action is dismissed: Dale 
 V. Kant, 58 Ind. 584. 
 
 36 State v. Eoss, 122 Mo. 435, 25 S. W. 947; approved in Miller 
 ▼. Perkins, 154 Mo. 629, 55 S. W. 874. See Jones v. Bank of Lead- 
 ville, 10 Colo. 464, 17 Pac. 272: "To hold that courts of equity can 
 entertain jurisdiction to appoint a receiver of property, as the 
 substantive ground, and ultimate object of the suit, on the petition 
 of the owner of the property to be controlled and protected, would 
 be to make them the administrators of every estate, the owners of 
 which were either incapable or unwilling of administering them- 
 eelvea. " The necessary implication from the cases seems to be
 
 119 EECEIVERS; ABSTRACT OF STATUTES. §§ 72,73 
 
 § 72. The Supreme Court of Judicature Act, in England 
 
 In England, since 1873, the appointment of receivers 
 is regulated by § 25, par. 8, of this act : "A mandamus 
 or an injunction may be granted, or a receiver appointed 
 by an interlocutory order of the court in all cases in 
 which it shall appear to the court to be just or conven- 
 ient that such order should be made; and any such order 
 may be made either unconditionally or upon such terms 
 and conditions as the court shall think just." The lib- 
 eral terms of this statutory provision render the recent 
 English decisions on the appointment of receivers of 
 little value as precedents to the American practitioner. 
 A few of them are cited in the note, by way of illustra- 
 tion merely.^'^ 
 
 § 73. Statutory Provisions in the United States. — "In the 
 states adopting the reformed procedure, the codes of 
 procedure generally contain provisions regulating the 
 appointment of receivers." As these general provisions 
 
 that, "a receiver being appointed for all the parties, he whose 
 property is to be taken from him and placed in the power of a re- 
 ceiver,- should be a party to the pending suit": Baker v. Backus 's 
 Admrs., 32 111. 79. 
 
 37 Cummins v. Perkins, [1S99] 1 Ch. 16; Smith v. Port Dover etc. 
 R. Co., 12 Ont. App. 288; Mason v. Westoby, L. R. 32 Ch. Div. 206; 
 but see 42 Ch. Div. 590 (receiver of mortgaged property); Bryant 
 V. Bull, L. R. 10 Ch. Div. 153 (married women's contracts); Taylor 
 V. Eckersley, L. R. 2 Ch. Div. 302 (specific performance of agree- 
 ment to execute bill of sale of chattels; receiver appointed on evi- 
 dence of immediate danger of the chattels being disposed of). Re- 
 ceivers in aid of judgment creditors, by way of "equitable execu- 
 tion," etc.: Anglo-Italian Bank v. Davies, L. R. 9 Ch. Div. 275 
 (to reach rents and profits of mortgaged lands) ; Salt v. Cooper, L. 
 R. 16 Ch. Div. 544 (appointment by motion in the original action); 
 Westhead v. Riley, L. R. 25 Ch. Div. 413 (to collect debts payable 
 to judgment debtor); In re Coney, L. R. 29 Ch. Div. 993 (to reach 
 equitable interest of judgment debtor who is out of the jurisdic- 
 tion); Manchester etc. Banking Co. v. Parkinson, L. R. 22 Q. B. 
 Div. 173 (no receiver when no impediment to execution in the ordi-
 
 § 73 EQUITABLE EEMEDIES. 120 
 
 vary somewhat in detail, and as a knowledge of the pre- 
 cise terms of the statute is frequently necessary to an 
 estimate of the value as a precedent of the decisions 
 based thereon, they are given in full in the note. Ref- 
 erence is also made to many of the statutes authorizing 
 the appointment in special cases, as on the dissolution 
 or insolvency of corporations. In a few of the states, 
 however, these statutes are so detailed and elaborate 
 that a statement of them would transcend the limits 
 of this treatise. Several of the states have general legis- 
 lation, briefly referred to below, on matters other than 
 the appointment; as, declaring who is ineligible (see, 
 6. g., Arizona, Arkansas, North Dakota, Ohio, Oklahoma, 
 South Dakota, Utah, Wyoming); describing his powers 
 in general terms (Arizona, Arkansas, California, In- 
 diana, Iowa, Kansas, Kentucky, New York, North 
 Dakota, Ohio, Oklahoma, South Dakota, Texas, Utah, 
 Washington, Wyoming); authorizing suits against him 
 without leave of court (see Alabama, Texas, Virginia); 
 authorizing suits by him in his own name (Arkansas, 
 California, and, generally, the states in which the stat- 
 ute defines his powers) ; providing for the investment of 
 funds (California, Kansas, North Dakota, Ohio, Okla- 
 homa, South Dakota, Texas, Utah, Wyoming); regulat- 
 ing the priority of certain claims (Indiana, New Jersey, 
 Oregon, Texas, Utah, Washington, Wisconsin) ; regulat- 
 ing his compensation (Mississippi, New York, North 
 Carolina, West Virginia),"^ 
 
 nary way); Holmes v. Millage, [1893] 1 Q. B. 551 (ordinarily, no 
 receiver of future earnings of the judgment debtor) ; Harris v. Beau- 
 champ, [1894] 1 Q. B. 801 (receiver only where impediment to exe- 
 cution); Cadogan v. Lyric Theatre, [1894] 3 Ch. 338; Tyrrell v. 
 Painton, [1895] 1 Q. B. 202 (reversionary interest in personalty). 
 38 See 4 Pom. Eq. Jur., § 1335.
 
 121 EECEIVEKS; ABSTEACT OF STATUTES. § 73 
 
 Alabama. — Civ. Code, 1896. 
 
 § 429: An appeal may be taken from an order appointing or refus- 
 ing a receiver. 
 
 § 799: May be appointed by chancellor in term time or in vacation, 
 and by register in vacation. In vacation reasonable notice must be 
 given of application, or good cause shown for failure to give notice. 
 
 § 801: Complainant must give bond before appointment. 
 
 § 803: Keceiver "may be sued in respect to any act or transac- 
 tion of his, in carrying on the business connected with such prop- 
 erty in this state," without previous leave of court. 
 
 § 1294: "Upon decree of dissolution [of a corporation], the chan- 
 cellor shall appoint a receiver of all the property and assets of the 
 corporation. The chancellor shall direct the receiver to collect, by 
 suit or otherwise, all the debts due the corporation, and sell prop- 
 erty, real or personal, belonging to the corporation, and how he shall 
 make title thereto to the purchaser; the chancellor may, in his dis- 
 cretion, authorize the receiver to proceed, without suit, to sell any 
 or all of the debts and assets of the corporation at public sale for 
 cash, or on such terms as in his judgment the interests of the parties 
 may require." 
 
 § 1295: How selected on dissolution; bond. 
 
 § 1296: Keceiver must pay debts in full or ratably. If contested, 
 determined as other contested claims in chancery. Eesidue must be 
 paid to stockholders. 
 
 § 821: In creditors' bill, if answer shows that defendant has any 
 property, court may appoint a receiver "with authority to demand, 
 «ue for and recover, or otherwise to reduce to possession such prop- 
 erty, moneys, effects, or choses in action; and may require the debtor 
 to make to such receiver all conveyances, assignments, or transfers, 
 which may be necessary and proper to enable him to receive, or to 
 sue for and recover such property." 
 
 § 25S0: Court may appoint a receiver for an insolvent domestic 
 insurance company. 
 
 Arizona.— Eev. Stats. 1901, §§ 1532-1541. 
 
 § 1532: "Judges of the district courts, in term time or in vaca- 
 tioUj may appoint a receiver in suits pending in said courts, when 
 no other adequate remedy is given by law for the protection and 
 preservation of property, or the rights of parties therein pending 
 litigation in respect thereto." 
 
 § 1533: Application must be in writing, supported by affidavit. 
 
 § 1534: Notice must be given to adverse party. 
 
 § 1535: Eeceiver's bond. 
 
 § 1536: "No party, attorney or other person interested in a suil 
 shall be appointed receiver therein." 
 
 S 1537: Oath ajid bond.
 
 § 73 EQUITABLE EEMEDIES. 122 
 
 § 1539: "The receiver shall have power, subject to the control of 
 the court, to bring and defend suits, to take and keep possession of 
 the property, to receive rents, to collect debts and generally to do 
 such acts respecting the property as may be authorized by the court.'* 
 
 § 1540: May be removed at any time and another appointed. 
 
 § 1541: Eules of equity govern when not inconsistent with statu- 
 tory provisions. 
 
 Arkansas. -Sandel's & Hill's Digest of Statutes (1894), §§ 5964- 
 5979. The important provisions relating to the appointment are: 
 
 § 5964: "Whenever it shall not be forbidden by law, and shall be 
 deemed fair and proper in any case in equity, the court, judge or 
 chancellor shall appoint," etc. 
 
 § 5965: "Such receiver may be appointed either before or after 
 answer or after a decree." 
 
 § 5975: "In an action by a vendor to vacate a fraudulent purchase 
 of property, or by a creditor to subject any property or fund to his 
 claim, or between partners or others jointly owning or interested in 
 any property or fund, on the application of plaintiff or of any party 
 whose right to or interest in the property or fund or the proceeds 
 thereof is probable, and where it is shown that the property or fund 
 is in danger of being lost, removed or materially injured, the court 
 may appoint a receiver to take charge thereof during the pendency of 
 the action, and may order and coerce the delivery of it to him." 
 
 § 5976: "In an action by a mortgagee for the foreclosure of his 
 mortgage and the sale of the mortgaged property, a receiver may, 
 m like manner, be appointed where it appears that the mortgaged 
 property is in danger of being lost, removed or materially injured, 
 or that the condition of the mortgage has not been performed, and 
 that the property is probably insufficient to discharge the mortgage 
 debt." 
 
 § 5977: "No party or attorney, or person interested in an action, 
 shall be appointed receiver therein." 
 
 § 5968: Eeceiver may sue in his own name, shall have power 
 to employ attorneys and make to them a reasonable allowance for 
 services, 
 
 § 5970: Eeceiver of corporation, partnership, or joint stock com- 
 pany, when the order places in his hands all the rights and in- 
 terests, etc., of the same, shall, until further order of the court, etc., 
 "have full possession, custody and control thereof, and shall be 
 vested with the title, so far as it shall be necessary to collect debts, 
 preserve the assets and property for the benefit of creditors and all 
 persons interested, and may and shall bring and prosecute and de- 
 fend all suits in his own name that may be necessary for that pur- 
 pose."
 
 123 EECEIVEKS; ABSTEACT OF STATUTES. § 73 
 
 § 5971: Eeceiver mentioned in last section may be substituted in 
 pending suits by or against the corporation, etc. 
 
 § 5973: May be removed for failure to discharge any duty incum- 
 bent upon them, or for other sufficient cause. 
 
 § 5974: Must report every six months, or oftener, if required by 
 court. Confirmation of accounts — conclusive as against all persons, 
 except in case of actual fraud. 
 
 § 5979: Powers. — Same as in California, except no provisions as to 
 suing or defending in hig own name, or as to compounding for and 
 compromising debts. 
 
 California.— Code Civ. Proc, § 564: "A receiver may be appointed 
 by the court in which an action is pending, or by the judge thereof: 
 
 "1. In an action by a vendor to vacate a fraudulent purchase of 
 property, or by a creditor to subject any property or fund to his 
 claim, or between partners or others jointly owning or interested in 
 any property or fund, on the application of the plaintiff, or of any 
 party whose right to or interest in the property or fund, or the pro- 
 ceeds thereof, is probable, and where it is shown that the property 
 or fund is in danger of being lost, removed, or materially injured; 
 
 "2. In an action by a mortgagee for the foreclosure of his mort- 
 gage and sale of the mortgaged property, where it appears that the 
 mortgaged property is in danger of being lost, removed, or materially 
 injured, or that the condition of the mortgage has not been per- 
 formed, and that the property is probably insufficient to discharge the 
 mortgage debt; 
 
 "3. After judgment, to carry the judgment into effect; 
 
 "4. After judgment, to dispose of the property according to th© 
 judgment, or to preserve it during the pendency of an appeal, or in 
 proceedings in aid of execution, when an execution has been returned 
 unsatisfied, or when the judgment debtor refuses to apply his prop- 
 erty in satisfaction of the judgment; 
 
 "5. In the cases when a corporation has been dissolved, or is insol- 
 vent, or in imminent danger of insolvency, or has forfeited its cor- 
 porate rights; 
 
 "6. In all other cases where receivers have heretofore been ap- 
 pointed by the usages of courts of equity." 
 
 § 565: Appointment of receivers on dissolution of corporations. 
 
 § 566 authorizes the court to require on an ex parte application, 
 an undertaking from the applicant to pay all damages the defendant 
 may sustain by reason of the appointment of the receiver in case the 
 applicant shall have procured the appointment wrongfully, maliciously 
 or without sufficient cause. 
 
 § 567: Oath and bond by receiver. 
 
 § 568: Powers of receiver. — "The receiver has, under the control of 
 the court, power to bring and defend actions in hia own name, as
 
 S 73 EQUITABLE EEMEDIES. 124 
 
 receiver; to take and keep possession of the property, to receive 
 rents, collect debts, to compound for and compromise the same, to 
 make transfers, and generally to do such acts respecting the prop- 
 erty as the court may authorize." 
 
 § 569: Funds in the hands of a receiver may be invested upon in- 
 terest, by order of the court; but no such order can be made, except 
 upon the consent of all the parties to the action. 
 
 § 963: An appeal lies from an order appointing a receiver. 
 
 § 1270: May be appointed for escheated estates. 
 
 § 1348: Corporation may be appointed receiver. 
 
 Colorado. — Mills' Statutes (1891), § 497, receiver in dissolution of 
 corporation (like Illinois); § 3387 (to prevent waste by surviving 
 partner). 
 
 Code of Procedure (1890), §§ 163, 164, 165.— § 163: "A receiver 
 may be appointed by the court in which the action is pending, or by 
 a judge thereof, or, pending proceedings in the supreme court upon 
 an appeal or writ of error, by the court from whose final judgment 
 Buch appellate proceedings are prosecuted or by the judge of such 
 court: First, before judgment, provisionally, on application of either 
 party, when he establishes a prima facie right to the property, or to 
 an interest in the property, which is the subject of the action, and 
 which is in the possession of an adverse party, and the property, or 
 its rents and profits, are in danger of being lost, or materially injured 
 and impaired. Second, after judgment to dispose of the property 
 according to the judgment, or to preserve it during the pending of an 
 appeal; and, third, in such other cases as are in accordance with the 
 practice of courts of equity jurisdiction." 
 
 Connecticut. — Gen. Stats. 1888, § 1322: "Eeceivers of a corpora- 
 tion, appointed by judicial authority, shall have the right to the pos- 
 session of all its books, papers and property, and power in their own 
 names, or in its name, to commence and prosecute suits for and on 
 behalf of said corporation; to defend all suits brought against it or 
 them; to demand and receive all evidences of debt and property be- 
 longing to it, and to do and execute in its name, or in their names, 
 as such receivers, all other acts and things which shall be necessary 
 or proper in the execution of their trust; and shall have all the power 
 for any of said purposes possessed by said corporation." § 1942 
 (receivers in winding up of corporations on petition of stockholders); 
 §§ 1313-1317 (receivers of dissolved partnerships); § 1313 (ap- 
 pointment); § 1314 (orders of court as to the partnership property); 
 § 1315 (all the property of the partnership vests in the receiver on 
 his appointment); §§ 1316, 1317 (proceedings when property is at- 
 tached for claim against individual partner); §§ 1833-1852 (receiv- 
 ers of banks, savings banks, and trust companies), §§ 2869-2879 (re- 
 ceivers of life insurance companies); §§ 1172-1177 (receivers of turn- 
 pike and toll bridge companies).
 
 125 EECEIVEES; ABSTRACT OF STATUTES. § 75 
 
 Delaware.— Eev. Stats. 1852, as Am. 1893, p. 686, c. 90, § 3: 
 Eeceiver may bo appointed when surviving member of partnership 
 fails to file the certificate required by law. 
 
 Page 718, c. 96, § 21: "If a minor have real, or personal property, 
 and no guardian, the court may appoint a receiver to take charge 
 of such property during its pleasure; and may make such regula- 
 tions touching this matter, as shall be deemed proper. 
 
 ' ' It may enforce any order made upon a receiver. Such receiver 
 shall be required to account annually, or oftener, and shall deposit 
 any balance, appearing in his hands, to be invested, or otherwise 
 disposed of, for the minor's benefit." 
 
 Florida.— Rev. Stats. 1892. 
 
 § 1211: May be appointed on application of judgment creditor, 
 for corporation, when execution returned unsatisfied in whole or in 
 part. 
 
 § 2107: May be appointed for estate of infant when property has 
 been managed by one not a guardian, and there is no legal guardian. 
 
 § 2157: May be appointed on voluntary dissolution of insolvent 
 corporation, at suit of three creditors. 
 
 § 2192: May be appointed at suit of comptroller when bank in- 
 solvent, or ofiicers violate law. 
 
 Georgia.— Code 1895, §§ 1970, 1971 (receivers of banks); §§ 2324, 
 2325 (liability of railroad receivers for injury to employees; see 91 
 Ga. 731); § 2333 (duties of railroad receivers); §§ 2716-2722 (re- 
 ceivers for insolvent traders); §§ '^COJ-4912 (receivers iu general). 
 
 The general provisions relating to the appointment are: 
 
 § 4900: "When any fund or property may be in litigation, and the 
 rights of either or both parties cannot otherwise be fully protected, 
 or when there may be a fund or property having no one to manage 
 it, a receiver of the same may be appointed (on a proper case nia.ie) 
 by the judge," etc. 
 
 § 4901: "Courts of equity shall have authority to appoint re- 
 ceivers to take possession of and protect trust or joint property and 
 funds, whenever the danger of destruction and loss shall require 
 Buch interference." 
 
 § 4904: "A court of equity may appoint a receiver to take posses- 
 sion of, and hold subject to the direction of the court, any assets 
 charged with the payment of debts, where there is manifest danger 
 of loss, or destruction or material injury to those interested. Under 
 extraordinary circumstances, a receiver may be appointed before and 
 without notice to the trustee or other person having charge of the 
 assets. The terms on which a receiver is appointed shall be in the 
 discretion of the chancellor." 
 
 See, also, § 2855 (receiver of excess of homestead applicant's real 
 estate) ; § 1886 (receivers on dissolution of corporations).
 
 § 73 EQUITABLE EEMEDIES. 126 
 
 Idaho.— See Code of Civil Procedure (1901), §§ 3318-3323 (general 
 provisions); § 3947 (receivers in insolvency proceedings). 
 
 The grounds of appointment are the same as in the California Code. 
 
 Illinois. — Hurd's Kevised Statutes (1899), c. 32, § 25 (receivers of 
 corporations); c. 73, § 15 (receiver on dissolution of insurance com- 
 panies); c. 62, § 24 f receiver in garnishments); c. 32, § 127 (of co- 
 operative associations). 
 
 Indiana.— Horner 's Rev, Stats. (1896), §§ 1222-1231 (general pro- 
 visions); § 3012 (on expiration of charter of corporation); § 3736 
 (of insurance company) ; § 1270 (receiver, in replevin, of property 
 having a peculiar value); §§ 6049, 6050 'receiver of partnership 
 on death of partner); § 5134 (receiver in wife's suit for support). 
 
 The provisions relating to grounds of appointment are somewhat 
 fuller than those usually found in the codes, and the interpretation 
 put upon them by the courts is liberal; in fnct, such an effect is 
 given to subdivision seventh of § 1222 as frequently to render the 
 Indiana cases unsafe authority in other jurisdictions. 
 
 § 1222: "A receiver may be appointed by the court, or the judge 
 thereof in vacation in the following cases: 
 
 "First. In an action by a vendor to vacate a fraudulent purchase 
 of property, or by a creditor to subject any property or fund to his 
 claim. 
 
 "Second. In actions between partners, or persons jointly interested 
 in any property or fund, 
 
 "Third. In all actions, when it is shown that the property, fund, 
 or rents and profits in controversy is in danger of being lost, removed, 
 or materially injured. 
 
 "Fourth. In actions by a mortgagee for the foreclosure of a mort- 
 gage and the sale of the mortgaged property, when it appears that 
 such property is in danger of being lost, removed, or materially in- 
 jured; or when such property is not sufficient to discharge the mort- 
 gaged debt — to secure the application of the rents and profits accru- 
 ing before a sale can be had. 
 
 "Fifth. When a corporation has been dissolved, or is insolvent, or 
 is in imminent danger of insolvency, or has forfeited its corporate 
 rights. 
 
 ' ' Sixth. To protect or preserve, during the time allowed for redemp- 
 tion, any real estate or interest therein sold on execution or order 
 of sale, and to secure to the person entitled thereto the rents and 
 profits thereof, 
 
 "Seventh. And in such other cases as may be provided by law; or 
 where, in the discretion of the court, or the judge thereof in vaca- 
 tion, it may be necessary to secure ample justice to the parties." 
 
 § 1228: Powers of receiver, — Like Arkansas, except that after 
 "debts" is added, "in his own name."
 
 127 BECEIYERS; ABSTRACT OF STATUTES. 5 73 
 
 § 5206: Debts owing laborers or employees are preferred debts. 
 
 Iowa.— Annotated Code (1897), §§ 3822-3825 (general provisions); 
 § 3904 (for joint or partnership property taken under attachment); 
 § 3978 (for same, taken under execution); § 3988 (for mortgaged 
 personal property taken under execution); § 4077 (in proceedings, 
 auxiliary to execution) ; § 1640 (receiver on dissolution of corpora- 
 tions); § 1731 (on dissolution of insurance companies); §§ 1777-1795 
 (on dissolution of life insurance companies); § 1877 (of insolvent 
 bank). 
 
 The general provision relating to the appointment is: 
 
 § 3822: "On petition of either party to a civil action or proceed- 
 ing, wherein he shows that he has a probable right to, or interest in, 
 any property which is the subject of the controversy, and that such 
 property, or its rents or profits, are in danger of being lost or ma- 
 terially injured or impaired, and on such notice to the adverse party 
 as the court or judge shall prescribe, the court, or, in vacation, the 
 judge thereof, if satisfied that the interests of one or both parties 
 will be thereby promoted, and the substantial rights of neitlier un- 
 duly infringed, may appoint a receiver to take charge of and con- 
 trol such property under its direction during the pendency of the 
 action, and may order and coerce the delivery of it to him. Upon 
 the hearing of the application, affidavits, and such other proof as the 
 court or judge permits, may be introduced, and upon the whole case 
 such order made as will be for the best interest of all parties con- 
 cerned." 
 
 § 3824: Powers of receivers. — Similar to Arkansas. 
 
 § 3825: Priority of liens. — Persons having liens upon the property 
 placed in the hands of a receiver shall, if there is a contest as to 
 their priority, submit them to the court for determination. 
 
 Kansas.— Eev. Stats. 1901, §§ 4701-4707; Code, §§ 254-260. 
 
 § 254: Appointment of receivers. — Similar to California provision, 
 with following exceptions: The fifth subdivision reads as follows: 
 "In the cases provided in this code, or by special statutes, when a 
 corporation has been dissolved, or is insolvent or in imminent danger 
 of insolvency, or has forfeited its corporate rights." An additional 
 subdivision, numbered 7, providing for the appointment of a re- 
 ceiver at suit of the state or of an officer for the collection of a tax 
 from a toll-bridge company, is added. 
 
 § 255: Oath and bond. 
 
 § 257: Powers. — Same as in California. 
 
 § 258. Investment of funds. — Same as in California (Cal. Code 
 Civ. Proc, § 569). 
 
 § 207: Receiver may be appointed to take charge of attached prop- 
 erty in custody of the sheriff.
 
 § 73 EQUITABLE EEMEDIES. 12S 
 
 Kentucky.— Carroll's Code (1888), §§ 298-302 (general provisions); 
 § 218 (to take charge of attached property) ; Bullitt & Feland 's Gen- 
 eral Statutes (1887), p. 675 (receiver of property conveyed in con- 
 templation of insolvency); p. 852 (receiver where waste is committed 
 pending an action to recover or charge land); p. 719 (receiver of 
 estate of female under sixteen years of age, who marries without 
 consent of parent, etc). 
 
 The general provisions relating to the appointment are: 
 
 § 298: "On the motion of any party to an action who shows that 
 he has, or probably has, a right to, a lien upon, or an interest in, 
 any property or fund, the right to which is involved in the action, 
 and that the property or fund is in danger of being lost, removed, or 
 materially injured, the court, or the judge thereof during vacation, 
 may appoint a receiver to take charge of the property or fund dur- 
 ing the pendency of the action, and may order and coerce the de- 
 livery of it to him." 
 
 § 299: Keceiver in mortgage foreclosure; similar provision to that 
 of California. 
 
 § 302: Powers of receiver. — Like Arkansas. 
 
 Maine. — Eev. Stats. 1903, p. 447 (receivers on dissolution of cor- 
 poration); pp. 497, 498 (receivers for casualty companies); pp. 485,. 
 506 (receivers for insurance company); pp. 529, 530, (receivers for 
 railroads); p. 460 (receivers for savings banks); p. 468 (receivers for 
 loan and building associations). 
 
 Maryland. — Pub. Gen. Laws, 1904, p. 226, art. 5, § 27 (order ap- 
 pointing or refusing receiver is appealable) ; pp. 697-699, art. 23, ^ 
 381 fE (receivers upon dissolution of corporations). 
 
 Massachusetts. — Eev. Laws, 1902, c. 144, p. 1304 ff (receivers may 
 be appointed to take charge of property of absentees) ; c. 167, § 126,. 
 p. 1517 (appointment of receiver dissolves attachment); c. 109, §§ 
 54 ff, p. 957 (receivers upon dissolution of corporations) ; c. 118, § 
 7, p. 1123 (receivers for insolvent insurance corporations); c. 113, 
 § 6, p. 1066 (receivers for insolvent savings banks); c. 116, § 18, p. 
 1112 (trust companies may act as receivers). 
 
 Michigan.— Comp. Laws, 1897, §§ 7091, 7249, 7282-7283, 7301, 7316, 
 7331, 7396, 7518, 7600, 9552, 9765-9770, 9963, 10859-10888 (receiver* 
 for various corporations). 
 
 Minnesota.— Kelly 's Stats. (1891), § 5044: "A receiver may be ap- 
 pointed: 
 
 "First. Before judgment, on the application of either party, when 
 he establishes an apparent right to property which is the subject 
 of the action, and which is in the possession of an adverse party,, 
 and the property or its rents and profits are in danger of being lost.
 
 129 EECEIVEESj ABSTRACT OF STATUTES. § 73 
 
 or materially injured or impaired, except in cases where judgment 
 upon failure to answer may be had without application to the court; 
 
 " Secotid. After judgment, to carry the judgment into effect; 
 
 "Third. After judgment, to dispose of the property according to 
 the judgment, or to preserve it during the pendency of an appeal, 
 or when an execution has been returned unsatisfied, and the judg- 
 ment debtor refuses to apply his property in satisfaction of the 
 judgment; 
 
 "Fourth. In the cases provided by law, when a corporation has 
 been dissolved, or is insolvent, or in imminent danger of insolvency, 
 or has forfeited its corporate rights; and, in like cases, of the prop- 
 erty, within this state, of foreign corporations; 
 
 "Fifth. In such other cases as are now provided by law, or may 
 be in accordance with the existing practice, except as otherwise pro- 
 vided herein." 
 
 See, a!so, § 4263 (act 1881, c. 148, § 2), (receiver of insolvent 
 debtor); § 4966 (receiver in proceedings supplementary to execution); 
 § 4968 (action by such receiver against an adverse claimant); § 5341 
 (receiver on judgment of exclusion from corporate rights); § 313S 
 (receiver on dissolution of corporation); § 5575 (on forfeiture of 
 charter of banking and insurance companies); § 5572 (on applica- 
 tion of judgment creditors of corporation). 
 
 Mississippi. — Annotated Code, 1892. 
 
 § 574: Eeceiver not appointed without notice, "unless it shall ap- 
 pear that an immediate appointment is necessary, or good cause be 
 shown for not giving notice." 
 
 § 575: Bond upon appointment of ex parte receiver. 
 
 § 576: Removal. 
 
 § 577: "Receivers shall be subject to the orders, instructions and 
 decrees of the court, and of the chancellor in vacation; and they, or 
 any party in interest, may apply therefor in term time, or to the 
 chancellor in vacation, or for modifications of previous orders or in- 
 structions; and obedience thereto may be enforced by attachment." 
 
 § 578: Bond in lieu of receiver. 
 
 § 579: Bond of receiver, 
 
 § 581: "In all cases in which it may be thought to be necessary 
 for the protection of estates of decedents, minors and persons of un- 
 sound mind, a receiver may be appointed, either by the court or by 
 the chancellor in vacation, subject to the foregoing conditions." 
 
 § 582: "Receivers shall be entitled to have such compensation for 
 their services as the court shall allow, and shall have a lien upon the 
 property in their hands for the payment thereof, and of their neces- 
 sary expenses. The court shall make such order to compel the pay- 
 ment thereof as may be just and necessary, and may decree the pay- 
 ment thereof by any of the parties as a portion of the costs of suit." 
 Equitable Remedies, Vol. 1—9
 
 § 73 EQUITABLE EEMEDIES. 130 
 
 Missouri. — Rev. Stats. (1899), §§ 753-755. Power is given to ap- 
 point "whenever such appointment shall be deemed necessary." 
 
 § 754: "Such receiver shall give bond, and have the same powers 
 and be subject to all the provisions, as far as they may be applicable, 
 enjoined upon a receiver appointed by virtue of the law providing 
 for suits by attachment." 
 
 Montana.— Code of Civil Procedure (1895), §§ 950, 956, same as 
 California; Civil Code (1895), § 727 (receiver of accident insurance 
 company); §§ 830, 832 (for building, loan and savings company). 
 
 Nebraska.— Code of Civil Procedure (1899), §§ 266-276. 
 
 § 266: Like Montana, omitting (party) "whose right to, or interest 
 in, the property or fund, is probable." Also, omitting "in proceed- 
 ings in aid of execution," etc.; and "in cases where a corporation has 
 been dissolved," etc. 
 
 §§ 267, 268: Suit must be pending; notice of the application re- 
 quired; sheriff to take possession of the property when delay is 
 hazardous. 
 
 § 269: Applicant required to give bond. 
 
 § 272: The order of appointment to contain special directions as 
 to his powers and duties. 
 
 § 273: "Every receiver shall be considered the receiver of any 
 party to the suit, and no others." 
 
 § 274: Appointment without notice is void. 
 
 § 275: Effect of decree not finally determining the rights of the 
 parties; and appeal. 
 
 See, also, §§ 213-217 (receiver in attachment); §§ 542, 543 (in pro- 
 ceedings supplementary to execution); Compiled Statutes (1899), c. 
 8, §§ 34, 35 (receivers of banks); c. 28, § 16a (compensation of 
 receivers). 
 
 New Jersey.— Gen. Stats. 1895. 
 
 Page 918: Eeceivers may be appointed to wind up corporation. 
 
 Pages 2688, 2689: May be appointed for railroad which fails to 
 run its trains for ten days. 
 
 Page 974: Eeceiver of railroad may operate the road; "and all ex- 
 penses incident to the operation of said railroad shall be a first lien 
 on the receipts, to be paid before any other incumbrance whatever." 
 
 Page 974: Leases by railroad receivers. 
 
 Page 2688: "That whenever the chancellor shall appoint a receiver 
 of any railroad company, said receiver shall apply all unincumbered 
 personal effects and all moneys which may be transferred to him at 
 the time of entering upon his duties as such receiver, toward the 
 payment of wages at that time due the employees of said company, 
 and the chancellor may, from time to time, make such orders as he 
 may deem proper to equitably carry out the provisions of this sec- 
 tion; provided, that no such payments shall be made for more than 
 two months' wages."
 
 131 EECEIVEES; ABSTEACT OF STATUTES. S 73 
 
 Page 353: Eeceivers for cemetery associations. 
 
 Page 1755: Eeceivers for life insurance corporationg. 
 
 Page 3011: Eeceivers for savings tanks. 
 
 New York, — ^Stover's Annotated Code of Civil Procedure, 1902. 
 
 § 713: "In addition to the cases, where the appointment of a re- 
 ceiver is specially provided for by law, a receiver of property, which 
 is the subject of an action, in the supreme court or a county court, 
 may be appointed by the court, in either of the following cases: 
 
 "1. Before final judgment, on the application of a party who es- 
 tablishes an apparent right to, or interest in, the property, where 
 it is in the possession of an adverse party, and there is danger that 
 it will be removed beyond the jurisdiction of the court or lost, ma- 
 terially injured or destroyed. 
 
 "2. By or after the final judgment, to carry the judgment into 
 effect, or to dispose of the property, according to its directions. 
 
 "3. After final judgment, to preserve the property, during the 
 pendency of an appeal. The word 'property,' as used in this sec- 
 tion, includes the rents, profits, or other income, and the increase, of 
 real or personal property." 
 
 § 714: Notice of application must be given, unless defendant has 
 failed to appear or service of summons is by publication. 
 
 § 715: Bond of receiver. 
 
 § 716: "A receiver, appointed by or pursuant to an order or a 
 judgment, in an action in the supreme court, or a county court, or in 
 a special proceeding for the voluntary dissolution of a corporation, 
 may take and hold real property, upon such trusts and for such pur- 
 poses as the court directs, subject to the direction of the court, from 
 time to time, respecting the disposition thereof." 
 
 § 1772: May be appointed in action for divorce to enforce pay- 
 ment of alimony. 
 
 § 1788: May be appointed in action to dissolve corporation. 
 
 § 1789: Powers of such receiver. 
 
 § 1810: "A receiver of the property of a corporation can be ap- 
 pointed only by the court, and in one of the following cases: 
 
 "1. An action, brought as prescribed in article second, third, or 
 fourth of this title. [Actions against directors, etc., for misconduct; 
 actions to dissolve; actions by the people to annul.] 
 
 "2. An action brought for the foreclosure of a mortgage upon the 
 property, of which the receiver is appointed, where the mortgage 
 debt, or the interest thereupon, has remained unpaid, at least thirty 
 daj-s after it was payable, and after payment thereof was duly de- 
 manded of the proper officer of the corporation; and where either 
 the income of the property is specifically mortgaged, or the property 
 itself is probably insufficient to pay the mortgage debt.
 
 S 73 EQUITABLE EEMEDIES. 132 
 
 "3. An action brought by the attorney -general, or by a stockholder, 
 to preserve the assets cf a corporation, having no officer empowered 
 to hold the same. 
 
 "4. A special proceeding for the voluntary dissolution of a cor- 
 poration. 
 
 "Where the receiver is appointed in an action, otherwise than by 
 or pursuant to a final judgment, notice of the application for his ap- 
 poiatmont, must be given to the proper officer of the corporation." 
 
 § 1877: May be appointed in judgment creditor's action. 
 
 §§ 24G4-2471: Eeceivers in supplementary proceedings. 
 
 § 3320: "A receiver, except as otherwise specially prescribed by 
 statute, is entitled, in addition to his lawful expenses, to such com- 
 missions, not exceeding five per centum upon the sums received and 
 disbursed by him, as the court by which, or the judge by whom he 
 is appointed, allows." 
 
 North Carolina. — Clark's Code of Civil Proc. 
 
 § 379: "A receiver may be appointed: 
 
 "(1) Before judgment, on the application of either party, when 
 he establishes an apparent right to property which is the subject of 
 the action and which is in the possession of an adverse party, and 
 the property or its rents and profits are in danger of being lost or 
 materially injured and impaired, except in cases where judgment 
 upon failure to answer may be had on application to the court. 
 
 "(2) After judgment, to carry the judgment into effect. 
 
 "(3) After judgment, to dispose of the property according to the 
 judgment, or to preserve it during the pendency of an appeal, or wheu 
 an execution has been returned unsatisfied, and the judgment debtor 
 refuses to apply his property in satisfaction of the judgment. 
 
 "(4) In cases .... when a corporation has been dissolved, or is 
 insolvent, or in imminent danger of insolvency, or has forfeited its 
 corporate rights, and in like cases of the property within this state 
 of foreign corporations. Eeceivers of the property within this state 
 of foreign or other corporations shall be allowed such commissions 
 as may be fixed by the judge appointing them, not exceeding five 
 per cent, on the amount received and disbursed by them." 
 
 Appointment of receiver may be refused when the subject of the 
 action is the recovery of a money demand and a bond is tendered. 
 
 § 383: Bond of receiver. 
 
 § 494: Appointment in proceedings supplementary to execution. 
 
 North Dakota.— Eevised Code, 1899. 
 
 § 5403: Appointment of receivers.— Same as Cal. Code Civ. Proc, § 
 564, but adding to subdivision 5, "and in like cases within this state, 
 of foreign corporations." 
 
 § 5404: "No party or person interested in an action can be ap- 
 pointed receiver therein without the written consent of the party
 
 133 RECEIVERS; ABSTRACT OF STATUTES. S 73 
 
 filed with the clerk." If appointed upon ex parte application comrt 
 may require a bond of the party seeking its aid. 
 
 § 5405: Oath and bond of receiver. 
 
 § 5406: Powers. — Same as Cal. Code Civ. Proc, § 568. 
 
 § 5407: Investment of funds. — Same as Cal. Code Civ. Proc, i 
 669. 
 
 §§ 5765, 5770, 5779, 5780: Receivers for corporations. 
 
 §§ 5568-5570: Receivers in supplemental proceedings. 
 
 Ohio. — Bates Ann. Stats. (4th ed.) 
 
 § 5587: Appointment of receivers. — Same as Cal. Code Civ. Proe., 
 § 564. 
 
 § 5538: "No party, attorney, or person, interested in an actioa, 
 shall be appointed receiver therein, except by consent of the par- 
 ties." 
 
 § 55S9: Oath and undertaking by receiver. 
 
 § 5590: Powers. — Same as Cal. Code Civ. Proc, § 568. 
 
 § 5591: Investment of funds. — Same as Cal. Code Civ. Proc, § 569. 
 
 §§ 5539 ff: Receivers for attached property. 
 
 §§ 5656 ff: Receivers on dissolution of corporations. 
 
 § 5705: Receiver of husband's property in action for divorce. 
 
 §§ 3821, c, f : Trust company may act as receiver. 
 
 Oklahoma.— Rev. Stats. 1903. 
 
 § 4441: Appointment of receivers. — ^Same as Cal. Code Civ. Proc, 
 § 564. 
 
 § 4442: "No party or attorney, or person interested in an action, 
 shall be appointed receiver therein." 
 
 § 4443: Oath and bond of receiver. 
 
 § 4444: Powers of receiver. — Same as Cal. Code. Civ. Proc, § 568. 
 
 § 4445: Investment of funds. — Same as Cal. Code Civ. Proc, § 569. 
 
 §§ 4398-4402: Receivers for attached property. 
 
 §§ 4683 ff: Appointment in proceedings in aid of execution. 
 
 Oregon. — Bellinger & Cotton's Codes & Stats. 
 
 § 1080. Definition of receiver. 
 
 § 1081: "A receiver may be appointed in any civil action, suit, 
 or proceeding, other than an action for the recovery of specific per- 
 sonal property, 
 
 "1. Provisionally, before judgment or decree, on the application 
 of either party, when his right to the property, which is the sub- 
 ject of the action, suit, or proceeding, and which is in the posses- 
 sion of an adverse party, is probable, and the property or its rents 
 or profits are in danger of being lost or materially injured or im- 
 paired; 
 
 "2. After judgment, or decree, to carry the same into effect; 
 
 "3. To dispose of the property according to the judgment or de- 
 cree, or to preserve it during the pendency of an appeal, or when an
 
 S 73 EQUITABLE REMEDIES. 134 
 
 execution has been returned unsatisfied, and the debtor refuses to 
 apply his property in satisfaction of the judgment or decree; 
 
 "4. In cases provided in this code, or by other statutes, when a 
 corporation has been dissolved, or is insolvent, or in imminent dan- 
 ger of insolvency, or has forfeited its rights; 
 
 "5. In the cases provided in this code when a debtor has been de- 
 clared insolvent." 
 
 § 1082: Oath and undertaking of receiver. 
 
 § 1083: Claims for wages for services performed within six months 
 before receivership are preferred claims. Employees of receiver 
 must be paid at least once in every thirty days. 
 
 Rhode Island. — Gen. Laws, 1896. 
 
 Pages 536, 537: Appointment of receivers on dissolution of corpor- 
 ations. 
 
 Page 937: May be appointed to receive rents and profits of estates 
 owned by joint tenants and tenants in common, upon application ol 
 any party interested. 
 
 South Carolina. — Code of Laws, 1902. 
 
 Code Civ. Proc, § 265: Appointment. — Similar to Oregon. Not ap- 
 pointed without notice. Bond required when application made be- 
 fore judgment. 
 
 § 318: Appointment in supplementary proceedings. 
 
 Civil Code, § 1869: Appointment on dissolution of corporation. 
 
 South Dakota. — Revised Codes, 1903. 
 
 Code Civ. Proc, § 227: Appointment. — Same as California. 
 
 § 228: Receivers on dissolution of corporations. 
 
 § 229: No party or person interested can be appointed, without 
 written consent. Applicant for ex parte receiver must give an un- 
 dertaking. 
 
 S 230: Oath and bond of receiver. 
 
 § 231: Powers. — Same as Cal. Code Civ. Proc, § 568. 
 
 § 232: Investments. — Same as Cal. Code Civ. Proc, § 569. 
 
 { 404: Appointment in supplementary proceedings. 
 
 Tennessee. — Code, 1896. 
 
 { 5182: Appointment of receiver on dissolution of corporation. 
 
 Texas. — Sayles' Stats. 
 
 Art. 1469: Appointment. — Same as California, but omitting the 
 third and fourth subdivisions of the California provision. 
 
 Art. 1469: Oath and bond of receiver. 
 
 Art. 1470: Powers. — Same as Cal. Code Civ. Proc, § 568. 
 
 Art. 1471: Investments.— Same as Cal. Code Civ. Proc, § 569. 
 Claims are entitled to priority as follows: (1) Court costs; (2) Wages 
 of employees of receiver; (3) Debts for materials and supplies fur- 
 nished during receivership; (4) Debts for betterments and Improve-
 
 135 EECEIVERS; ABSTRACT OF STATUTES. S 73 
 
 mentg made during receivership; (5) Personal injury and damage 
 claims accruing during the receivership; (6) Judgments recovered 
 before receivership. 
 
 Art. 1477: "The discharge of a receiver does not work an abate- 
 ment of the suit against a receiver, nor shall it in any way affect 
 the right of the party to sue the receiver if he sees proper." 
 
 Art. 1483: Receiver may sue and be sued without leave. 
 
 Art. 1490: "All judgments, claims, or causes of action when deter- 
 mined, existing against any corporation at the time of the appoint- 
 ment of a receiver, shall be paid out of the net earnings of such 
 corporation while in the hands of the receiver, to the exclusion of 
 mortgage action; and the same shall be a lien on such earnings." 
 
 Art. 1491: Receivership of corporations is limited to three years. 
 
 Art. 2595: May be appointed for estate of minor, person of un- 
 sound mind, or habitual drunkard, when there is no guardian. 
 
 Utali. — Rev. Stats. 1898. 
 
 § 3114: Appointment. — Same as California. 
 
 § 3115: Appointment on dissolution of corporation, 
 
 § 3116: Party in interest appointed only on consent. Undertaking 
 on ex parte application. 
 
 § 3117: Oath and undertaking of receiver. 
 
 § 3118: Powers.— Same as Cal. Code Civ, Proc, § 563. 
 
 § 3119: Investments. — Same as Cal. Code Civ. Proc, § 569. 
 
 § 424: Certain corporations may act as receivers. 
 
 § 1344: Wages of employees for labor performed within one year 
 before receivership are entitled to preference. 
 
 Vermont. — Stats. 1894. 
 
 §§ 3700-3703: Appointment of receivers on dissolution of corpora- 
 tions, 
 
 §§ 4057-4059: Receivers for insolvent banks. 
 
 Virginia. — Pollard's Ann. Code, 1904, 
 
 § 1105e: Receivers on dissolution of corporations. 
 
 § 1169: Bank receivers, 
 
 § 2291: Appointment for estate of married woman who is a minor. 
 
 § 3415a: Suits against corporation receivers in respect of acts done 
 by them in carrying on business may be maintained without leave 
 of court. No execution shall issue, but the court in which the re- 
 ceivers were appointed shall order the payment of judgments. 
 
 Washington, — Pierce's Code, 
 
 § 574: "A receiver is a person appointed by a court or judicial 
 officer to take charge of property during the pending of a civil ac- 
 tion or proceeding, or upon a judgment, decree or order therein, and 
 to manage, and dispose of it as the court or officer may direct," 
 
 8 575: "A receiver may be appointed by the court in the following 
 cases:
 
 § 73 EQUITABLE REMEDIES. 136 
 
 "1. In an action by a vendor to vacate a fraudulent purchase of 
 property, or by a creditor to subject any property or fund to his 
 claim; 
 
 "2. In an action between partners, or other persons jointly inter- 
 ested in any property or fund; 
 
 "3. In all actions where it is shown that the property, fund or 
 rents and profits in controversy are in danger of being lost, re- 
 moved or materially injured; 
 
 "i. In an action by a mortgagee for the foreclosure of a mort- 
 gage and the sale of the mortgaged property, when it appears that 
 such property is in danger of being lost, removed, or materially in- 
 jured; or when such property is insufficient to discharge the debt, 
 to secure the application of the rents and profits accruing, before a 
 sale can be had; 
 
 "5. When a corporation has been dissolved, or is insolvent, or is 
 in imminent danger of insolvency, or has forfeited its corporate 
 rights; 
 
 "6. And in such other cases as may be provided for by law, or 
 when, in the discretion of the court it may be necessary to secure 
 ample justice to the parties, provided that no party or attorney or 
 other person interested in an action shall be appointed receiver 
 therein." 
 
 § 576: Oath and bond of receiver. 
 
 § 580: "The receiver shall have power, under control of the court, 
 to bring and defend actions, to take and keep possession of the prop- 
 erty, to receive rents, collect debts and generally to do such acts re- 
 specting the property as the court may authorize." 
 
 § 524: Receiver may be appointed for property under attachment. 
 
 §§ 904 ff: Receivers in proceedings supplementary to execution. 
 
 § 925: Notice of application in supplementary proceedings must 
 be given to other creditors. 
 
 §§ 927-930: Powers and duties of receivers appointed in supple- 
 mentary proceedings. 
 
 § 6137: "Whenever a receiver or assignee is appointed for any 
 person, company or corporation, the court shall require such receiver 
 or assignee to pay all claims for which a lien could be filed under 
 this act [laborers' claims], before the payment of any other debts 
 or claims, other than operating expenses." 
 
 West Virginia.— Code, 1899, c. cxxxiii. 
 
 Pages 892 ff: A general receiver may be appointed by the court, 
 to receive, take charge of and invest moneys paid into court. 
 
 Page 893: Bond of receiver. 
 
 Page 893: "lie shall receive as compensation for his services such 
 per centum of the amount received and invested or paid out by him 
 in each cnse as the court may direct, for receiving, investing or pay- 
 ing out the same."
 
 137 RECEIVERS; ABSTRACT OF STATUTES. § 73 
 
 Page 895: "A court of equity may in any proper case pending 
 therein, in which the property of a corporation, firm or person ia 
 involved, and there is danger of the loss or misappropriation of the 
 same or a material part thereof, appoint a special receiver of such 
 property or the rents, issues and profits thereof, or both, who shall 
 
 ^ive bond But no such receiver shall be appointed of any 
 
 real estate, or of the rents, issues or profits thereof until reasonable 
 notice of the application therefor has been given to the owner or 
 tenant thereof." 
 
 Page 808: Appointment of receivers upon dissolution of corpora- 
 tion. 
 
 Wisconsin- — Stats. 1898. 
 
 § 2787: "A receiver may be appointed: 
 
 "1. Before judgment, on the application of either party, when he 
 establishes an apparent right to or interest in property which is the 
 subject of the action and which is in the possession of an adverse 
 party, and the property or its rents and profits are in danger of 
 being lost or materially impaired; 
 
 "2. By the judgment, or after judgment, to carry the judgment 
 into effect or to dispose of the property according to the judgment; 
 
 "3. After judgment, to preserve the property during the pen- 
 •dency of an appeal; or when an execution has been returned un- 
 satisfied and the judgment debtor refuses to apply his property in 
 satisfaction of the judgment, or in an action by a creditor under 
 «ection 3029; 
 
 •'4. In cases provided by any statute when a corporation has been 
 dissolved or is insolvent or in imminent danger of insolvency, or 
 has forfeited its corporate rights; 
 
 "5. In such cases as are now provided by law or may be in ac- 
 cordance with the existing practice except as otherwise provided in 
 this chapter." 
 
 § 2787a: Wages of employees accruing within three months of re- 
 ceivership are preferred claims. 
 
 § 1769: Wages of railroad employees accruing within six months 
 before receivership are preferred claims. 
 
 § 3036: Notice of application must be given to plaintiff in sup- 
 plementary proceedings. 
 
 §§ 3216 ff: Receivers for insolvent corporations. 
 
 § 1791g: Trust company may act as receiver. 
 
 Wyoming.— Rev. Stats. 1899. 
 
 § 4054: Appointment of receivers. — Practically the same as Cal. 
 Code Civ. Proc, § 564, 
 
 § 4055: "No party, attorney, or person interested in an action shall 
 be appointed receiver therein except by consent of the parties." 
 
 § 4056: Oath and undertaking of receiver.
 
 § 74 EQUITABLE REMEDIES. 138 
 
 § 74. Class I: (1) Infants' Estates. — "The cases in which 
 a receiver may be appointed, subject to the general 
 rules regulating the exercise of the judicial discretion, 
 may be reduced to four general classes. The first class 
 contains those cases where there is no person entitled 
 to the property who is at the same time competent to 
 hold and manage it during the judicial proceeding. In 
 instances of this class a receiver is appointed more 
 readily and without proof of imminent danger, perhaps, 
 than in any other. "^* 
 
 "A court of equity exercises control over the prop- 
 erty of its infant ward, where there is no trustee, by 
 means of a receiver, even though there is a guardian. 
 The main reason for appointing a receiver, in the ab- 
 sence of a trustee, was that the guardian at common 
 law had not full power of control and management. 
 The necessity of a receiver in such cases may have been 
 obviated in many states by statutes enlarging the 
 powers of guardians. "^^ 
 
 § 4057: Powers of receiver.— Practically the same as Cal. Code 
 Civ. Proc, § 568. 
 
 § 4058: Investment of funds. — Same as Cal. Code Civ. Proc, § 569. 
 § 3952: Appointment in aid of execution, 
 §§ 4006 ff: Receivers for attached property. 
 
 39 4 Pom. Eq. Jur., § 1332. 
 
 40 Pom. Eq. Jur., § 1332, and note, citing Gardner v. Blane, 1 
 Hare, 381; Butler v. Freeman, Amb. 301, 303; Duke of Beaufort v. 
 Berty, 1 P. Wms. 703. See, also. Ex parte Whitfield, 2 Atk. 315, per 
 Lord Hardwicke. A statute in North Carolina provides for a re- 
 ceiver in case of the removal of a guardian for certain specified 
 causes. See Temple v. W^illiams, 91 N. C. 82. 
 
 The recent case of Keister v. Cubine, 101 Va. 768, 45 S. E. 285, is 
 of considerable interest. A mother, M. C, deeded a house to her 
 daughter, R. C, in consideration of a "proper and comfortable 
 home" for life. On the death of the daughter the property de- 
 scended to her infant children. M. C. was compelled by the widower 
 of R. C. to abandon the home. Rescission of the deed as against 
 the infant owners was refused, since they were not at fault; but a 
 receiver was appointed to administer and, if necessary, sell, the
 
 139 EECEIVEES; LUNATICS' ESTATES. §§ 75 76 
 
 § 75. (2) Lunatics' Estates. — "The control of the court 
 over the property of a lunatic is ordinarily exercised 
 by means of a committee; but instead of a committee, 
 and especially where no person will act as a committee, 
 the court may appoint a receiver."^^ "Where a suit 
 was brought by the committee of a lunatic to set aside 
 a conveyance of land alleged to have been obtained by 
 defendant from the lunatic by fraud and undue in- 
 fluence, and defendant was in possession receiving the 
 rents and profits, and was alleged to be insolvent, the 
 
 appointment of a receiver during the litigation was held 
 proper. "^2 
 
 § 76. (3) Estates of Decedents. — "During the litigation 
 concerning the admission of a will to probate, and dur- 
 ing the interval before an executor or administrator is 
 appointed, a court of equity has power to appoint a re- 
 ceiver of the personal property and of the rents and 
 profits of the real estate, while there is any danger of 
 their loss, misuse, or misapplication.*^ The necessity 
 
 property, primarily for the support of the grantor, M. C, and after 
 that to hold the property or its proceeds for the infant owners. 
 
 41 Pom. Eq. Jur., § 1332. The appointment of a receiver pending 
 an inquisition of lunacy, or a statutory inquiry into insanity, to pre- 
 vent mismanagement or waste, rests in the sound discretion of the 
 court: In re Misselwitz, 177 Pa. St. 359, 35 Atl. 722; In re Fountain, 
 L. E. 37 Ch. D. 609. See, also, Beall v. Stokes, 95 Ga. 357, 22 S. E. 
 637 (lunatic committed to asylum in another state, but having an 
 estate in Georgia, receiver appointed at suit of wife) ; In re Hybart, 
 119 N. C. 359, 25 S. E. 963 (practice in appointing receiver of luna- 
 tic's estate, under statutes of North Carolina). 
 
 42 Pom. Eq. Jur., § 1332, note; Mitchell v. Barnes, 22 Hun, 194. 
 For the appointment of a receiver in a suit under the inherent juris- 
 diction of equity to protect the property of a person of weak or 
 unsound mind, who cannot be adjudged to be non compos mentis 
 (Pom. Eq. Jur., § 1314), see Edwards v. Edwards, 14 Tex. Civ. App. 
 87, 36 S. W. lOSO. 
 
 43 Pom. Eq. Jur., § 1332. See Whitworth v. Whyddon, 2 Macn. 
 & G. 52, 55; King v. King, 6 Ves. 172; Atkinson v. Henshaw, 2 Ves.
 
 § 7(3 EQUITABLE KEMEDIES. 140 
 
 of such a receiver lias been greatly lessened by modern 
 statutes authorizing the probate court to appoint an 
 administrator ad litems and enlarging his powers."^* 
 "The recent English decisions hold that the jurisdiction 
 will not be exercised if the probate court has already 
 appointed an administrator ad litem;"^^ but if no such 
 temporary administrator has been appointed, the court 
 of equity will still appoint a receiver" in a proper case.^® 
 The death of one of two executors and the refusal of the 
 other to act has also been considered a good reason for 
 the appointment of a receiver of the estate ;^'^ and the 
 appointment might be made, on a case of strong pre- 
 sumption, pending a suit in the ecclesiastical court to 
 recall probate.^^ 
 
 & B. 85; Ball v. Oliver, 2 Vea. & B. 96; Watkins v. Brent, 1 Mylne 
 & C. 97, 102; Anderson v. Guichard, 9 Hare, 245; Kendall v. Eendall, 
 1 Hare, 152; Wood v. Hitchings, 2 Beav. 289; Eeed v, Harris, 7 
 Sim. 639; Eobinson v. Taylor, 42 Fed. 803; Flagler v. Blunt, 32 N. J. 
 Eq. 518, 523 (property liable to be removed from the state); Long 
 V, Eichardson, 26 Tex. Civ. App. 197, 62 S. W. 964. For cases 
 where the court refused to exercise the power, see Whitworth v. 
 Whyddon, 2 Macn. & G. 52 (property of small value); Eichards v, 
 Chave, 12 Ves. 462 (no danger shown); Jones v. Goodrich, 10 Sim. 
 327. A receiver may be appointed of the estate of a lunatic after 
 his death, since the functions of the lunatic's committee cease with 
 the death of the lunatic; but such receivership should be discontin- 
 ued on the appointment of an administrator in litem: In re Colvin '•9 
 Estate, 3 Md. Ch. 278. 
 
 44 4 Pom. Eq. Jur., § 1332. See Goodman v. Kopperl, 169 111. 136, 
 48 N. E. 172 (receiver not appointed on application of a creditoi 
 of decedent, as he has a right to take out administration of the es 
 tate); Colvin 's Case, 3 Md. Ch, 278 (receiver must surrender the 
 property when an administrator pendente lite is appointed). 
 
 4 5 Veret v, Duprez, L. E. 6 Eq. 329; Hitchen v. Birks, L. E. 10 
 Eq. 471. 
 
 46 4 Pom. Eq. Jur., § 1332, note; Parkin v. Siddons, L. E. 16 
 Eq. 34. 
 
 47 Palmer v. Wright, 10 Beav. 234. 
 
 48 Rutherford v. Douglas, 1 Sim. & St. Ill, note.
 
 141 APPOINTMENT OF KECEIVERS; PARTNERSHIPS. §§ 77, 7S 
 
 § 77. Class II: In General — "The second class of cases 
 is based upon the fact that all of the parties are equally 
 entitled to the possession of the property which is the 
 subject-matter of the controversy, but it is not just and 
 proper, from the nature of the dispute and of their re- 
 lations with each other, that either one of them shojild 
 be allowed to retain possession and control during the 
 litigation. While the foundation of the remedy is, of 
 course, the danger, yet it is not always essential that 
 there should be any element of actual fraud or breach 
 of trust."^^ The most important instances which do 
 or may belong to this class are: 1. Suits between part- 
 ners ; 2. Suits for partition between co-owners. 3. Suits 
 between conflicting claimants of land, so far as they 
 afford occasion for the appointment of a receiver, may 
 conveniently be discussed in connection with this class, 
 though not strictly falling within its definition. 
 
 § 78. (1) Receivers in Settlement of Partnership Affairs: 
 In General — The power of a court of equity to appoint 
 receivers in the settlement of partnership affairs, where 
 a dissolution is sought or has occurred, is well estab- 
 lished.^^ The power is, however, always exercised with 
 great carefulness and caution.^^ The appointment is 
 
 49 4 Pom. Eq, Jur., § 1333. 
 
 60 Pom. Eq. Jur., § 1333. See notes, Slemmer's Appeal, 98 Am. 
 Dec. 269-271; Cameron v. Groveland Imp. Co., 72 Am. St. Eep. BO- 
 SS. Tlie power is inherent in the court, and is not dependent upon 
 any statute: Cox v. Volkert, 86 Mo. 505, 511. 
 
 51 Pom. Eq. Jur., § 1333. "It is a high power, never exercised 
 where it is likely to produce irreparable injustice or injury to 
 private rights, or where there exists any other safe or expedient 
 remedy": Speights v. Peters, 9 Gill (Md.), 475. Where the time 
 limited for the partnership has not expired, it is a familiar rule that 
 the court will not interfere by the extreme measure of a receiver, 
 except for the purpose of preservation of the assets in the face of a 
 real danger of loss: Warwick v. Stockton, 55 N. J. Eq. 61, 36 Atl. 
 488. See, also, Heflebower v. Buck, 64 Md. 15, 20 Atl. 991; Bard 
 V. Bingham, 54 Ala. 463.
 
 § 78 EQUITABLE REMEDIES. 142 
 
 only made in connection with a pending suit.^^ Upon 
 a preliminary application for a receiver, the court does 
 not determine the questions arising between the part- 
 ners, the only question for consideration being whether, 
 upon the facts disclosed, there is an apparent neces- 
 sity for a receiver to protect the assets of the partner- 
 ship until the rights of the partners can be definitely 
 determined upon full hearing of the case.^* As a gen- 
 eral rule, the court will not order the business to be con- 
 tinued by the receiver; the object of the court in ap- 
 pointing a receiver is the care of the partnership prop- 
 erty until the cause shall be decided, not the conducting 
 of the business of the partnership.^* In some excep- 
 tional cases, however, the management of the business 
 may be continued by the receiver, during the pendency 
 of the action for dissolution, for the purpose of preserv- 
 ing the good-will of the business, or when the property 
 is liable to injury from remaining idle.^* 
 
 52 Jones V. Schall, 45 Mich. 379, 8 N. W. 68; Webb v. Allen, 15 
 Tex. Civ. App. 605, 40 S. W. 342. 
 
 53 Blakeney v. Dufour, 15 Beav. 40; Heflebower v. Buck, 64 Md. 
 15, 20 Atl. 991. But where the case is ready for final hearing upon 
 the proofs, it is error to appoint a receiver without adjudging the 
 merits upon which the right or the propriety of the appointment 
 necessarily depends; Morey v. Grant, 48 Mich. 326, 12 N. W. 202, 
 per Cooley, J. 
 
 54 Wolbert v. Harris, 7 N, J. Eq. 621; Martin v. Van Schaick, 4 
 Paige (N. Y.), 479; Allen v, Hawley, 6 Fla. 142, 63 Am. Dec. 198; 
 and see Waters v. Taylor, 15 Ves. 10; Taylor v. Neate, 39 Ch. D. 
 538. 
 
 55 Marten v. Van Schaick, 4 Paige (N. Y.), 479 (a newspaper); 
 Allen V. Hawley, 6 Fla. 164, 63 Am. Dec, 198 (a steamboat); Jack- 
 son V. De Forest, 14 How. Pr. 81 (a Uvery-stable). Under the pres- 
 ent English practice, on a dissolution by notice pursuant to the arti- 
 cles of partnership, where a sale of the business as a "going con- 
 cern" is directed as being the most beneficial mode of realization, 
 the court will appoint a receiver and manager for the purpose, in 
 the meantime, of preserving the assets by carrying into effect exist- 
 ing contracts, and entering into such new contracts as are necessary
 
 143 APPOINTMENT OF EECEIVEES; PAETNEESHIPS. §§• 79, 80 
 
 § 79. Existence of Partnership Must be Proved; and Neces- 
 sity for Dissolution Must be Shown. — In a suit for dissolu- 
 tion and appointment of a receiver, the court should not 
 intervene if the existence of the partnership is denied 
 by the defendant, and there is a substantial doubt in- 
 volving that issue ;^^ especially where the party in pos- 
 session of the property is solvent, and able to respond 
 fully to any measure of relief that can be decreed to the 
 complainant.^^ If the partnership is still in existence, 
 the showing made on application for a receiver must 
 be such as to leave no doubt that the complainant will 
 be entitled to a dissolution, if the facts shown are 
 proved at the hearing.^^ 
 
 § 80. Mere Right to Dissolution not SuflScient. — But the 
 mere right to a dissolution of the partnership is not 
 
 for the purpose of carrying on the business in the ordinary way, 
 but so as not to impose, by speculative dealing or otherwise, onerous 
 liabilHies on the partners: Taylor v, Neate, 39 Ch. D. 538. 
 
 56 Irwin V, Everson, 95 Ala. 64, 10 South. 320; Goulding v. Bain, 
 4 Sandf. 716; Popper v. Scheider, 7 Abb. Pr., N. S., 56; McCarty v. 
 Stanwix, 16 Misc. Eep. 132, 38 N. Y. Supp. 820; Guild v. Meyer, 
 56 N. J. Eq. 183, 38 Atl. 959; Hobart v. Ballard, 31 Iowa, 521 (right 
 to participate in profits the test of existence of a partnership). See, 
 also, Taylor v. Bliley, 86 Ga. 154, 12 S. E, 210; Leeds v. Townsend, 
 74 111. App. 444; Davis v. Niswonger, 145 Ind. 426, 44 N. E. 542. 
 The burden of proof rests on the plaintiff: Hobart v. Ballard, 31 
 Iowa, 521. That an issue may be directed to a jury to determine 
 whether a partnership exists, or whether the plaintiff has an inter- 
 est in the profits, see Peacock v. Peacock, 16 Ves. 49; Fairburn v. 
 Pearson, 2 Macn. & G. 144. That the same equitable principles ap- 
 ply, whether the relation between the parties is that of joint adven- 
 turers, or of partners, see Wilcox v. Pratt, 125 N. Y. 688, 25 N. 
 E. 1091; Warwick v. Stockton, 55 N. J. Eq. 61, 36 Atl. 488. 
 
 57 Irwin V. Everson, 95 Ala. 64, 10 South. 320; Goulding v. Bain, 
 4 Sandf. 716. 
 
 58 Goodman v. Whitcomb, 1 Jacob & W. 589; Smith v. Jeyes, 4 
 Beav. 503; Eoberts v. Eberhardt, Kay, 148; Hall v. Hall, 3 Macn. & 
 G. 79; Const v. Harris, Turn. & E. 517; Garretson v. Weaver, 3 Edw. 
 Ch. (N. Y.) 385. A receiver cannot be appointed where the bill 
 contains no prayer for a dissolution; Pirtle v. Fenn, 3 Dana (Ky.), 
 247, 28 Am. Dec. 70.
 
 § 80 EQUITABLE EEMEDIES. 144 
 
 sufficient to warrant the appointment of a receiver; 
 there must be some breach of the duty of a partner, or 
 of the contract of partnership, and a necessity of pres- 
 ervation of the assets in the face of a real danger of 
 loss.^^ Such facts as the unprofitable nature of the 
 business,^*^ or the refusal of the defendant partner to 
 co-operate in its management,^^ furnish no grounds for 
 a receiver. But if the conduct of the defendant part- 
 ner has been such as justly to destroy all confidence in 
 him, this is an important fact to be considered by the 
 court ;*^- and where the firm is admitted to be insolvent, 
 
 59 Harding v. Glover, 18 Ves. 281, per Lord Eldon; "Warwick v. 
 Stockton, 55 N. J, Eq. 61, 36 Atl. 4S8; Weissenborn v. Sieghortner, 
 21 N. J. Eq. 483, reversing 20 N. J, Eq. 172; Eandall v. Morrell, 17 
 N. J. Eq. 343; Cox v. Peters, 13 N. J. Eq. 39; Wilson v. Fitehter, 11 
 N. J. Eq. 71; Birdsall v. Colie, 10 N. J. Eq. 63; Eenton v. Chaplain, 
 9 N. J. Eq. 62 (the ralief refused to a purchaser of one partner's in- 
 terest at a sheriff's sale). This is true of partnerships determina- 
 ble at the will of one partner: Birdsall v. Colie, and Cox v. Peters, 
 gupra; though Chancellor Walworth is credited with the statement 
 that in such cases a receiver is a matter of course, if the articles of 
 partnership have made no provision for closing up the concern; see 
 Law V. Ford, 2 Paige, 310. 
 
 60 Shoemaker v. Smith, 74 Ind. 71. 
 
 61 Roberts v. Eberhardt, Kay, 148. See the frequently quoted re- 
 marks of Lord Eldon on the subject of disagreement among the 
 partners as a ground of dissolution: "Where partners differ, as they 
 sometimes do, when they enter into another kind of partnership, 
 they should recollect that they enter it for better and worse, and 
 this court has no jurisdiction to make a separation between them 
 because one is more sullen or less good-tempered than the other. 
 Another court, in the partnership to which I have alluded, cannot, 
 nor can this court in this kind of partnership, interfere, unless there 
 is a cause of separation which, in the one case, must amount to 
 downright cruelty, and in the other must be conduct amounting to 
 an entire exclusion of the partner from his interest in the partner- 
 ship. Whether a dissolution may ultimately be decreed I will not 
 say, but trifling circumstances of conduct are not sufficient to au- 
 thorize the court to award a dissolution": Goodman v. Whitcomb, 
 1 Jacob & W. 589. 
 
 62 Smith V. .Jeyes, 4 Beav. 503; Todd v. Eich, 2 Tenn. Ch. 107; 
 Williamson v. Wilson, 1 Bland (Md.), 418.
 
 145 APPOINTMENT OF RECEIVERS; PARTNERSHIPS. $ 81 
 
 and each partner charges the other with threatened 
 waste of the partnership property and an intent to give 
 an unlawful preference to certain creditors f^ or where 
 willful acts of fraud by the defendants are shown, and 
 application of the partnership funds to their own use;® ^ 
 or when the petition shows insolvency, dissension be^ 
 tween the partners, probability of waste, and a neces- 
 sity for an accounting and dissolution — in such cases 
 sufficient grounds are presented for a receiver.®^ 
 
 § 81. Exclusion from Management as Ground. — The ex- 
 clusion of one partner from his full share of participa- 
 tion in the business of the partnership is considered one 
 of the strongest grounds for the appointment of a re- 
 ceiver.^® When the application is made on this ground, 
 it is not always a necessary condition of the action of 
 
 63 Williamson v. Wilson, supra. 
 
 64 Barns v, Jones, 91 Ind, 161; Shannon v. Wright, 60 Md. 520. 
 
 65 Veith V. Ress, 60 Neb. 52, 82 N. W. 116. 
 
 66 Const V. Harris, Turn. & R. 517, 24 Rev. Rep. 108, per 
 Lord Eldon; Wilson v. Greenwood, 1 Swanst. 471 (exclusion of 
 assignees of bankrupt partner) ; Butchart v. Dresser, 4 De Gex, 
 M. & G. 542; Einstein v. Schnebly, 89 Fed. 540, 552; Katz v. 
 Brewington, 71 Md, 79, 20 Atl. 139 (although the plaintiff may 
 have an interest only in the profits, and not in the capital); Speights 
 V. Peters, 9 Gill (Md.), 475; Wolbert v. Harris, 7 N. J. Eq. 621; 
 Wilcox V. Pratt, 125 N. Y. 68S, 25 N. E. 1091, affirming 52 Hun, 340, 
 5 N. Y. Supp. 361; Cole v. Price, 22 Wash. 18, 60 Pac. 153; Redding 
 V. Anderson (Wash.), 79 Pac. 628. Otherwise, if, by agreement, the 
 business was to be conducted by the defendant alone: Warwick v. 
 Stockton, 55 N. J. Eq. 61, 36 Atl. 488; and a receiver in behalf of an 
 excluded partner was refused, in a case where the partner in possession, 
 prior to the formation of the partnership, had owned all the property 
 and conducted the business, and the complainant purchased a half in- 
 terest in the property and business on long credit, mortgaging it back 
 to secure the debt; the complainant did not aver or show that the part- 
 ner in possession was insolvent, or that the property was endangered 
 in his custody; nor-, did he aver or show any willingness or ability to 
 make the payments as they fell due, or that his interest was equal 
 to the amount due: Bard v. Bingham, 54 Ala. 463. 
 
 Equitable Remedies, Vol. I— 10
 
 § 82 EQUITABLE REMEDIES. 146 
 
 the court that the property should be in imminent 
 peril ;*'^ but if there is in addition to the exclusion, a 
 showing of fraudulent conduct on the defendant's part, 
 and a dissolution is inevitable, the court will unhesita- 
 tingly appoint a receiver.^* 
 
 § 82. After Dissolution; Partner Liquidating Under Agree- 
 ment — Where dissolution of the partnership has already 
 occurred, and an agreement has been made that one or 
 more of the partners shall have charge of its properties 
 and wind up the concern, "their possession is not to be 
 interfered with on slight grounds. There must be some 
 palpable breach of conduct or of duty, or some miscon- 
 duct amounting to fraud, or such as will endanger the 
 property and the rights of the partner who has with- 
 drawn, in order to justify the court's interference. It 
 does not follow^ that the complainant has a right to in- 
 tercept their proceeding, under a mere apprehension of 
 such loss, or because he may think the defendants have 
 not acted discreetly or judiciously in some particu- 
 lars."^* But where such an agreement gives the con- 
 
 6T Speights V. Peters, supra. 
 
 68 See Cole v. Price, 22 Wash. 18, 60 Pae. 153; Haight v. Burr, 
 19 Md. 130; Shannon v. Wright, 60 Md. 520; Barnes v. Jones, 91 
 Ind. 161. Thus, in the last case, the complaint showed willful acta 
 of fraud by the defendants, the application by them of the partnership 
 funds to their own use, the making by them of false entries upon the 
 looks, the preventing of the plaintiff from having access to such 
 books, and the willful concealment from him of the condition of the 
 partnership business. 
 
 69 Walker v. Trott, 4 Edw. Ch. 38. To the same effect, see Waters 
 V. Taylor, 15 Ves. 10, 19; Bufkin v. Boyce, 104 Ind. 53, 3 N. E. 615; 
 Heflebower v. Buck, 64 Md. 15, 20 Atl. 991; Simon v. Schloss. 48 
 Mich. 233, 12 N. W. 196; Weston v. Watts, 1 N. Y. St. Eep. 763; 
 Alcott V. Vulter, 33 App. Div. 245, 53 N. Y. Supp. 474; Meyer v. 
 Reimers, 30 Misc. Rep. 307, 63 N. Y. Supp. 681, affirmed 49 App. 
 Div. 638, 63 N. Y. Supp. 1112. See, however, Bennett v. Smith, 108 
 Ga. 466, 34 S. E. 156.
 
 147 APPOINTMENT OF KECEIVEES; PAETNEESHIPS. § 83 
 
 tinuing partners the exclusive right to the possession 
 of the partnership property, and. holds the retiring part- 
 ner harmless, a receiver may be appointed for the pres- 
 ervation of the assets, on a showing that the continu- 
 ing partners are wasting or misapplying them, or that 
 by reason of their insolvency the retiring partner is in 
 danger of being sued for the debts of the firm;'^*^ and a 
 receiver is also warranted by the fact that after dissolu- 
 tion the remaining partners continue to carry on the 
 business on their own account with the partnership 
 effects.'^i 
 
 § 83. After Dissolution; No Agreement for Liquidation. — 
 In the absence of any provision or agreement by the 
 partners as to the division of the property or the man- 
 ner of closing its affairs, a receiver will readily be ap- 
 pointed, after dissolution, in case of a disagTeement be- 
 tween the partners. This rule is based on the principle 
 that each partner has an equal right to the possession 
 and control of the partnership effects.'^ ^ 
 
 70 Allen V. Cooley, 53 S. C. 414, 31 S. E. 634; West v. Chasten, 
 12 Fla. 315; Drury v. Koberts, 2 Md. Ch. 157. 
 
 71 Harding v. Glover, 18 Ves. 281. See, also, Joselove v. Bohrman, 
 119 Ga. 204, 45 S. E. 982 (insolvent continuing partner contracts 
 new liabilities in firm name; injunction and receiver). 
 
 7 2 McElvey v. Lewis, 76 N. Y. 373; Law v. Ford, 2 Paige, 310; 
 Marten v. Van Schaick, 4 Paige, 479; Whitman v. Eobinson, 21 Md. 
 43; Sloan v. Moore, 37 Pa. St. 217; Fleming v. Carson, 37 Or. 252, 
 62 Pac. 374; Martin v. Hurley, 84 Mo. App. 670; Mitchell v. Lister, 
 21 Ont. 22; and see Mcintosh v. Perkins, 13 Mont. 143, 32 Pac. 653. 
 Some of the cases speak of the receivership being almost a matter 
 of course under such circumstances. See the New York cases above 
 cited; and Pini v. Eoncoroni, [1S92] 1 Ch. 633; but compare the 
 New Jersey cases cited ante, in note to § 80. By the rule in New 
 Jersey, a receiver, after dissolution, is appointed only when nec- 
 essary to protect the interests of the parties; but the circumstance 
 of the insolvency of one of the partners, in addition to the fact of 
 the dissolution of the firm, would, under ordinary circumstances, 
 induce the court to assume the administration of the partnership 
 affairs: Eandall v. Morrell, 17 N. J. Eq. 343, 346.
 
 i 84 EQUITABLE EEMEDIES. 148 
 
 § 84. Receiver on Death of Partner. — The surviving 
 partner being the one in whom the deceased himself 
 reposed confidence, and being in law entitled to the 
 possession and control of the firm assets, control should 
 not be wrested from him, by the appointment of a re- 
 ceiver, without a clear showing of mismanagement or 
 improper conduct, and of danger of ultimate loss to the 
 estate of the deceased partner. '^^ But where the sur- 
 viving partner is acting negligently or faithlessly — as, 
 by failing to take an account of stock, and to keep an 
 account of sales ;'^^ or by refusing to close up the firm 
 
 While in cases of this character a receiver is not a matter of ab- 
 solute right, one will be appointed where the defendant partner 
 "has withdrawn from the partnership funds a very large sum, and 
 has so brought about its insolvency. That is a good ground for say- 
 ing that the plaintiff can no longer trust him": Pini v. Koneoroni, 
 [1892] 1 Ch. 633. In this case, the jurisdiction to appoint a receiver 
 was not ousted by a very broad arbitration clause, requiring the sub- 
 mission of all differences; so, too, where the articles provide that 
 on dissolution the partners should appoint a person to collect the ac- 
 counts and settle the partnership affairs, on their failure to agree on 
 any person the court will appoint a receiver: Mitchell v. Lister, 21 
 Ont. 22. 
 
 Dissolution by Bankruptcy of Partner.— In England, "the usual 
 course where disputes as to the management of partnership affairs 
 arise between the trustees of a bankrupt partner and the solvent 
 partners, and there is no reason for distrusting the latter, is that 
 the court will appoint one of them receiver of th© partnership prop- 
 erty, directing him to give security, to pass his accounts, and to fur- 
 nish the trustee with proper accounts, and to allow him at all rea- 
 sonable times to inspect the partnership books": Lindley, Partn. (5th 
 ed.), p. 670, quoted in Collins v. Barker, [1893] 1 Ch. 578. 
 
 73 Painter v. Painter (Cal.), 36 Pac. 865, 875; Huggins v. Hug- 
 gins, 117 Ga. 151, 43 S. E, 759 (not appointed when survivor sol- 
 vent, and no special circumstances); Walker v. House, 4 Md. Ch. 
 39, 44; Comstock v. McDonald, 113 Mich, 626, 71 N. W. 1087; Mason 
 v. Dawson, 15 Misc. Rep. 595, 37 N. Y. Supp. 90 (survivors entitled 
 fo wind up the affairs of the partnership by virtue of an express 
 provision in the articles; mere delay, slightly in excess of that per- 
 mitted by the articles, not sufficient ground for receiver). 
 
 74 Word v. Word, 90 Ala. 81, 7 South. 412.
 
 149 APPOINTMENT OF KECEIVERS; PARTNERSHIPS. § 85 
 
 business within a reasonable time, and by continuing 
 to manage it in his own name and for his own benefit ;'^^ 
 or by conducting the firm business for the purpose of 
 continuing and enlarging it, and not to close if^^ — if 
 there is danger that the estate of the deceased co-part- 
 ner will suffer, a receiver may be appointed on the ap- 
 plication of the legal representatives of the latterJ''^ 
 On the death of both partners, it has been held that a 
 receiver should be appointed on the ground that no re- 
 lation of confidence exists between their representa- 
 tives J* 
 
 § 85. Miscellaneous.— Where both partners have as- 
 signed their respective interests in the firm, the juris- 
 diction may be exercised between the assignees upon 
 the same principles which govern the jurisdiction as 
 between partners themselves.'^^ Where each partner 
 has attempted separately to make an assignment of the 
 partnership assets for the benefit of creditors, a receiver 
 is proper.^** 
 
 There can be no ground for a receiver in behalf of a 
 partner who is himself in possession. ^^ 
 
 The fact that a motion for a receiver was denied in 
 a former suit for the settlement of the partnership 
 affairs, which suit was dismissed without prejudice, 
 constitutes no bar to the relief in another action.^^ 
 
 A receiver will generally be refused where the equities 
 of the plaintiff in the bill are fully met and denied by 
 
 75 Holden's Admrs. v. McMakin, Par. Eq. Cas. (Pa.) 270. 
 
 76 Dawson v. Parsons, 66 Hun, 628, 21 N. Y. Supp. 212. 
 
 77 Clegg V. Fishwick, 1 Macn. & G. 294. 
 
 78 In the early case of Phillips v. Atkinson, 2 Bro. C. C. 272; but 
 Bee Perrin v. Lepper, 56 Mich. 351, 23 N. W. 39. 
 
 79 Maynard v. Railey, 2 Nev. 133. 
 
 80 Fox V. Curtis, 176 Pa. St. 52, 34 Atl. 952, 38 Wkly. Not. Cas. 321. 
 
 81 Smith V. Lowe, 1 Edw. Ch. 33. 
 
 82 Anderson v. Powell, 44 Iowa, 20.
 
 § 86 EQUITABLE REMEDIES. 15U 
 
 the answer ;^^ and where the appointment would de- 
 stroy the value of the business without benefit to either 
 party.^^ In some cases, the necessity of a receiver has 
 been obviated by a bond executed by the defendant for 
 the satisfaction .of any decree that might be rendered 
 in favor of the plaintiff.^^ 
 
 It is said that the receiver should be directed to take 
 charge of all the i^artnership property, not of a portion 
 merely, where the suit is for a final accounting; and 
 where the ownership of some of the property is in dis- 
 pute, that the order should furnish the means of distin- 
 guishing the private property of the defendant from 
 the partnership property.^^ 
 
 § 86. (2) In Partition and Other Suits Between Co- 
 owners — "In suits between co-owners of mines and col- 
 lieries the English courts grant a receiver upon the 
 same grounds and under the same circumstances as in 
 those between partners," since "the working of a mine 
 by co-owners is necessarily a business analogous to a 
 partnership."^^ 
 
 83 Williamson v. Monroe, 3 Cal. 383; Coddington v. Tappan, 26 
 N. J. Eq. 141. 
 
 84 Slemmer's Appeal, 58 Pa. St. 168, 98 Am. Dec. 255. 
 
 85 See Popper v. Scheider, 7 Abb. Pr., N. S., 56; Saverios v. Levy, 
 1 N. Y, St. Eep. 758; Buchanan v. Comstock, 57 Barb. 568; Philipp 
 V. Von Eaven, 26 Misc. Eep. 552, 57 N. Y. Supp. 701 (under Code 
 Civ. Proc, § 1947); Word v. Word, 90 Ala. 81, 7 South. 412; Devereux 
 V. Fleming, 47 Fed. 177; Cary Bros. v. Dalhoff Const. Co., 126 Fed. 
 584, and see Fleming v. Carson, 37 Or. 252, 62 Pac. 374 (bond refused). 
 
 86 Morey v. Grant, 48 Mich. 326, 12 N. W. 202, per Cooley, J. 
 
 87 4 Pom. Eq. Jur., § 1333, and note 2; Jefferys v. Smith, 1 Jacob 
 & W. 298, per Lord Eldon. In this case there was a dispute as to 
 the management of the property among a large number of owners 
 of a colliery. "Here there are twenty shares; and if each owner 
 may employ a manager and a set of workmen, you destroy the sub- 
 ject altogether; it renders it impossible to carry it on." In Parker 
 V. Parker, 82 N. C. 165, where co-tenants in possession of a gold mine 
 were of doubtful responsibility to respond in damages for gold ap-
 
 151 APPOINTMENT OF KECEIVEES IN PAETITION. S 86 
 
 In all ordinary suits, including suits for partition, 
 between legal co-owners of land, a receiver is not usu- 
 ally appointed unless some of the parties are in sole 
 possession, to the exclusion of the others.^^ Beyond 
 this statement it is difficult to formulate any rule that 
 will be supported by authority.^^ In a well-considered 
 
 propriated by them, a receiver was held to be proper pendente lite, 
 instead of an injunction, as the public had an interest in the con- 
 tinued working of the mine. But mere colorable ouster on the part 
 of a tenant in common who is in possession of" a mining claim by 
 the consent of a co-tenant who has brought" a suit for partition, and 
 the mere fact that the care of the property involves considerable 
 expense, will not authorize the appointment of a receiver: Heinze v. 
 K'einschmidt, 25 Mont. 89, 63 Pac. 927. In Heinze v. Butte & Boston 
 Consolidated Min. Co., 61 C. C. A. 63, 126 Fed. 1, 7-11, a receiver 
 was appointed, in a partition suit, to receive the share of ore per- 
 taining to an interest the ownership of which was in dispute; and 
 the subsequent extension of the receivership to the entire property, 
 under directions to operate the mine, on a showing of fraud by the 
 co-tenants in possession in withholding such share from the receiver, 
 was held not to be an abuse of discretion on the part of the trial 
 court. This decision was based in part, however, upon conduct of 
 the co-tenant in possession showing acquiescence in the order ex- 
 tending the receivership; and Boss, Cir. J., dissented (at pp. 28, 29) 
 both as respects the appointment and the extension. In general, as 
 to receivers of mining property, see next section. 
 
 88 Pom. Eq. Jur., § 1333; Milbank v. Eevett, 2 Mer. 405; Cassetty 
 r. Capps, 3 Tenn. Ch. 524; Vaughan v. Vincent, 88 N. C. 116; Kill v. 
 Murdock, 4 Ohio N. P. 244; Lamaster v. Elliott, 53 Neb. 424, 73 N. 
 W. 925 (mere ill-will and hostility between joint owners does not 
 warrant the appointment of receiver). The appointment will not 
 be made solely because one of the co-tenants is ocejipying all of the 
 common property without paying rent; he has a right so to occupy 
 it, unless his occupation is a virtual ouster of the complainant: Var- 
 num V. Leek, 65 Iowa, 751, 23 N. W. 151. That a notice to under- 
 tenants not to pay rent to co-tenants entitled thereto by agreement 
 does not amount to an exclusion, see Tyson y. Fairclough, 2 Sim. & 
 St. 142. 
 
 89 Freeman on Co-tenancy and Partition, § 327: "In most of the 
 early cases, the circumstances inducing the action of the court can- 
 not be ascertained from the reports. No conclusion can, therefore, 
 be drawn from these cases as to the grounds which warrant the in- 
 terposition of the court. Most of the recent cases were so curtly
 
 § 86 EQUITABLE REMEDIES. 152 
 
 case in Georgia it was held "that a court of equity has 
 jurisdiction to appoint a receiver, at the instance of 
 one tenant in common against his co-tenants, who are 
 in possession of undivided valuable property, receiv- 
 ing the whole of the rents and profits and excluding 
 their companion from the receipt of any portion thereof, 
 
 disposed of as to leave us without any knowledge of the reasons 
 which, in their own minds, justified the action of the judges. We 
 therefore find it impossible to state with precision the general prin- 
 ciples upon which the action of courts of equity have been or will 
 be predicated in disposing of applications for the appointment of 
 receivers of undivided estates. It is certain, however, that the ap- 
 plication will be denied, except in extreme cases." In New York it 
 has been held that a receiver may be appointed to preserve the prop- 
 erty during the pendency of an action for partition, where it is 
 shown that a portion of the property cannot be rented, and that the 
 rents of the remaining portions cannot be collected, because of the 
 refusal of one of the co-tenants to unite with the others: Pignolet v. 
 Bushe, 28 How. Pr. 9; or where there was a strong feeling of hos- 
 tility between the co-tenants, and a probability of future injury to 
 the interests of both parties: Goldberg v. Richards, 26 N. Y. Supp. 
 335, 5 Misc. Rep. 419. In Bender v. Van Allen, 28 Misc. Rep. 304, 59 
 N. T. Supp. 885, a receiver was refused where one defendant in an 
 action of partition claimed as tenant by the curtesy, since none of 
 the heirs were entitled to possession during the life of such tenant, 
 if his claim should be established; and in Darcin v. Wells, 61 How. 
 Pr, 259, and Bathmann v. Bathmann, 79 Hun, 447, 29 N. Y. Supp. 
 959, also actions of partition, no grounds existed for the appoint- 
 ment. In Illinois, it was held that the appointment on a bill for 
 partition by infants of a receiver for a long term of years, on the 
 application of adult co-tenants, without the consent of the infants 
 or their guardians, was unauthorized: Ames v. Ames, 148 111. 321, 
 340, 36 N. E. 110. The court has no power to appoint a receiver 
 over other lands of the co-tenant not involved in the suit, in order 
 to collect a judgment for rents: Branner v. Webb, 10 Kan. App. 217, 
 63 Pae. 274. 
 
 Under the broad power to appoint receivers conferred by the Su- 
 preme Court of Judicature (see ante, § 72), the English courts 
 now hold that a receiver may be appointed until the hearing although 
 the co-owner is not in exclusive possession: Porter v. Lopes, L. R. 
 7 Ch. D. 358, per Jessel, M. R. And in Indiana, under § 1222 of Re- 
 vised Statutes of 1881, the appointment is a matter solely within the 
 discretion of the court or judge, and the defendant cannot defeat the
 
 153 EECEIVEES; CONFLICTING TITLES TO LAND. § 87 
 
 when such tenants are insolvent."^*^ Courts are averse 
 to appointing a receiver over personal property at the 
 suit of one co-owner against the other; and in a suit 
 for the partition of such property will refuse a receiver 
 if tlie defendant in exclusive possession will give ade- 
 quate security against the deterioration or destruction 
 of the property and to compensate the plaintiff for its 
 use.^^ 
 
 § 87. (3) "In Suits Between Conflicting Claimants of 
 Land, especially between parties claiming under legal 
 titles, a receiver will not ordinarily be appointed. The 
 remedy, however, may be granted under special circum- 
 stances, in cases of gross fraud or great danger, or 
 where possession is maintained by violence, and the 
 like. In such cases the court acts with great caution, 
 only where the plaintiff's rights are reasonably certain, 
 and the danger is apparent."^^ The insolvency of a 
 
 appointment by showing the collector of the rents to be amply re- 
 sponsible or by offering to indemnify and secure the plaintiff against 
 loss: Eapp v, Keehling, 122 Ind. 255, 23 N. E. 68. 
 
 90 Williams v. Jenkins, 11 Ga. 595, citing Street v. Anderton, 4 
 Bro. C. C. 415, and Milbank v. Kevett, 2 Mer. 405. 
 
 91 Low V. Holmes, 17 N. J. Eq. 148. But in California it was held 
 that where a tenant in common of a growing crop was in sole pos- 
 session thereof, and denied the right of his co-tenant to any part 
 thereof, and threatened to sell the entire crop and appropriate the 
 proceeds to his own use, the co-tenant might maintain an action for 
 the partition of the crop, and that in such an action a receiver 
 pendente lite was authorized by Code of Civil Procedure, § 564: 
 Baughman v. Eeed, 75 Cal. 319, 7 Am. St. Eep. 170, 17 Pac. 222. 
 For a ease where a receiver was appointed at the suit of certain 
 part owners of a vessel, where the defendant part owners had been 
 acting in fraud of the plaintiff's rights, see Brenan v. Preston, 2 
 Be Gex, M. & G. 813. 
 
 92 Pom. Bq. Jur., § 1333. See Owen v. Homan, 4 H. L. Cas. 997, 
 3 Macn. & G. 378; Bainbrigge v. Baddeley, 3 Macn. & G. 413; Earl 
 Talbot V. Hope Scott, 4 Kay & J. 96; Lloyd v. Passingham, 16 Ves. 
 €8; Clark v. Dew, 1 Euss. & M. 103 (suit by devisee against heir at
 
 § 87 EQUITABLE KEMEDIES. 154 
 
 defendant in possession does not of itself warrant the 
 court in appointing a receiver, but, in addition, it must 
 appear that the plaintiff has a jjrobable right to recover 
 
 law); Eyder v. Bateman, 93 Fed. 16; St. Louis etc. R. R. Co. v. 
 Dewees, 23 Fed. 519; Bateman v. Superior Court, 54 Cal. 285; Scott 
 V. Sierra Lumber Co., 67 Cal. 71, 76, 7 Pac. 131; San Jose Safe De- 
 posit Bank v. Bank of Madera, 121 Cal. 543, 54 Pac. 85; Bennallack v. 
 Richards, 125 Cal. 427, 58 Pac. 65; Kelly v. Steele (Idaho), 72 Pac. 
 887; Mapes v. Scott, 4 111. App. 268; Cofer v. Echerson, 6 Iowa, 
 502; Tarvin v. Walker's Creek etc. Co., 109 Ky. 579, 60 S. W. 185; 
 Squire v. Hewlett, 141 Mass. 597, 6 N. E. 779; State v. Second Judi- 
 cial Dist. Ct., 13 Mont. 416, 34 Pac. 609; Smith v. White, 62 Neb. 
 56, 86 N. W. 930; Corey v. Lon^, 12 Abb. Pr., N. S., 427; Thompson v. 
 Sherrard, 35 Barb. 593, 22 How. Pr. 155; Gregory v. Grgeory, 1 
 Jones & S. (33 N. Y. Super. Ct.) 1; McCool v. McNamara, 19 Abb. 
 N. C. 344; Guernsey v. Powers, 9 Hun, 73; Willis v. Corlies, 2 Edw. 
 Ch. 281; Rollins v. Henry, 77 N. C. 467; Twitty v. Logan, 80 N. C. 
 69; Bryan v. Moring, 94 N. C. 694; Emerson's Appeal, 95 Pa. St. 
 258; De Walt v. Kinard, 19 S. C. 286; Pearson v. Gillenwaters, 99 
 Tenn. 446, 63 Am. St. Rep. 844, 42 S. W. 9; Davis v. Reaves, 2 Lea 
 (Tenn.), 649; Sengf elder v. Hill, 16 Wash. 355, 58 Am. St. Rep. 36, 
 47 Pac. 757; Spokane v. Amsterdamsch Trustees Kantoor, 18 Wash. 
 81, 50 Pac. 1088; Union Boom Co. v. Samish River Boom Co., 33 
 Wash. 144, 74 Pac. 53; Freer v. Davis, 52 W. Va. 35, 94 Am. St. Rep. 
 910, 43 S. E. 172. 
 
 In Talbot v. Hope Scott, supra, Vice-Chancellor Woods says: "That 
 there may be a possible case in which this court would interfere to 
 prevent absolute destructive waste, where the value of the property 
 would be destroyed if no steps were taken, I can understand; but I 
 have found nothing that bears any resemblance to the doctrine con- 
 tended for, that at the instance of a person alleging a mere legal 
 title, this court will interfere against another who is in possession, 
 
 to deprive him of that possession The ground of the rule 
 
 adopted by the court, in this respect, I conceive to be extremely 
 sound; the general ground being that the court cannot interfere with 
 a legal title of any description, unless there be some equity by which 
 it can affect the conscience of the defendant. Where there is an 
 entire want of privity between the plaintiff and the defendant, and 
 the defendant is simply a wrong-doer at law, this court does not take 
 upon itself to interpose, unless in very exceptional cases." In Car- 
 row V. Ferrior, L. R. 3 Ch. App. 719, the same judge points out th© 
 distinction between the interference of the court to protect real prop- 
 erty, and its interference to protect personal estate pending a litiga- 
 tion as to probate. "It may be true, on the highest general prin-
 
 155 RECEIVEES; CONFLICTING TITLES TO LAND. § 87 
 
 in the end.^^ If the object of the receiver is to preserve 
 the rents and profits, there must be danger that they 
 will be squandered and lost by reason of the insolvency 
 
 ciples, that there ought to be no difference in this respect between 
 real and personal property, but our law clearly regards them very 
 diflFerently, and looks upon the person in possession of real estate as 
 entitled to keep it till some one else shows a better title. Unless 
 the person in possession of real estate is affected by some equity, this 
 court will not interfere. The consideration is not unimportant that 
 personal estate may be made way with altogether, if this court does 
 not interfore, but only the rents of real estate can be lost. But, in 
 my opinion, the leading principle governing the case is that this 
 court does not interfere unless there is an equity." 
 
 Under the provision of the Judicature Act of 1873, § 25, para- 
 graph 8, permitting the appointment of a receiver "in all cases where 
 it shall appear to the court to be just or convenient," Talbot v. 
 Hope Scott and Carrow v, Ferrior are no longer law in England, but 
 the court has power to appoint a receiver, pending an ^action to re- 
 cover possession of land, although the plaintiff's title is legal and the 
 defendant is in possession: Berry v. Keen, [1882] 51 L. J. (Ch.) 912; 
 Foxwell V. Van Greetten, [1897] 1 Ch. 64 (insufficient grounds); 
 John V. John, [1898] 2 Ch. 573. In the last case it was said that 
 the discretion of the court must be exercised with a view to all the 
 circumstances of the case; that it is important to bear in mind the 
 position of the tenants, who, if the defendant is not a person of un- 
 doubted solvency, and remains in receipt of the rents, may be called 
 upon to pay twice over if the plaintiff succeeds; and that the court 
 has also to consider the probability of the plaintiff's succeeding, and 
 the length of the defendant's possession, and whether he has any 
 prima facie title. 
 
 93 Kyder v. Bateman, 93 Fed. 16; Gregory v, Gregory, 33 N. Y. 
 Super. Ct. (1 Jones & S.) 1; Cofer v. Echerson, 6 Iowa, 502. See, 
 also, as to probability of plaintiff's recovery, ante, § 66; Owen v. 
 Homan, 3 Macn. & G. 378, 412, 4 H. L. Cas. 997; Bainbrigge v. Bad- 
 deley, 3 Macn. & G. 413, 419. In the latter case the contest was as 
 to the validity of a will, under which the defendant in possession 
 of the property claimed title. The chancellor, Lord Truro, says: 
 "When the parties are litigating the right to property, and the 
 litigation depends upon questions then to be decided at law, what are 
 the circumstances in which the jurisdiction is to be exercised and 
 is properly applicable in granting a receiver? There are, I appre- 
 hend, two grounds, and two only: First, that there is a reasonable 
 probability of success on the part of the plaintiff; and second, that 
 
 the property, the subject of the suit, is in danger I apprehend 
 
 I ought to presume, until I have the case so before me as to enable
 
 { 87 EQUITABLE KEMEDIES. 156 
 
 of the party in possession, who will be unable to respond 
 to a final decree.^^ 
 
 In accordance with the rule as above stated, receivers 
 have been appointed in suits to cancel conveyances ob- 
 tained by fraud or undue influence, where there was a 
 strong probability of the plaintiff's success in the 
 suit;^^ or where the plaintiff shows a right to the im- 
 mediate possession of the land, together with the in- 
 solvency of the defendant in possession and imminent 
 danger to the property ;^^ or where the land is claimed 
 by both parties, and both claim to be in possession, in- 
 terfering with each other in harvesting the crops grown 
 by each respectively and threatening each other with as- 
 saults and forcible resistance.^'^ 
 
 The relief has sometimes been granted to the plain- 
 tiff after a judgment in his favor, pending a motion for 
 
 me judicially to form an opinion upon the subject, that the will is 
 good. This court ought not, in any case, to disturb the possession 
 of a party who stands upon his legal title, without a reasonable prob- 
 ability that the plaintiff will ultimately succeed I do not see 
 
 any such reasonable probability here; not at all using that ex- 
 pression to prejudice the plaintiff's title, or to express any opinion 
 of it. His case may be the strongest that ever was presented; it 
 may, when it comes to be laid before the proper tribunal, entitle him 
 to a verdict without any doubt or hesitation; but I have not the ma- 
 terials before me to warrant me in coming to that conclusion." 
 
 94 Vause V. Woods, 46 Miss. 120; Bryan v. Moring, 94 N. C. 694. 
 See, also, Vizard v. Moody, 117 Ga. 67, 43 S. E. 426, where a receiver 
 was appointed. But even in such a case, a bond to account for the 
 rents in a sum to be designated by the court, may obviate the neces- 
 sity of a receiver: Spokane v. Amsterdamscb Trustees Kantoor, 18 
 Wash. 81, 50 Pac. 1088. 
 
 95 Huguenin v. Basely, 13 Ves, 105; Stilwell v. Wilkins, Jacob, 
 280. 
 
 96 Smith v. Lusk, 119 Ala. 394, 24 South. 256; Nesbitt v. Turren- 
 tine, 83 N. C. 535 (acrtion by lessor against lessee); and see Mayo v. 
 McPhaul, 71 Ga. 758; Davis v. Taylor, 86 Ga. 506, 12 S. E, 881 (right 
 lost by laches); Troughber v. Akin, 109 Tenn. 451, 73 S. W. 118 (sea 
 this opinion for a careful review of the Tennessee cases on the ques- 
 tion of appointment). 
 
 97 Hlawacek v. Bohman, 51 Wis. 92, 8 N. W. 102.
 
 157 KECEIVEES; CONFLICTING TITLES TO LAND. S 8T 
 
 a new trial, or the like, where it was necessary to pro- 
 tect the proceeds of the land from loss at the hands 
 of an insolvent defendant.®^ 
 
 In North Carolina the relief is granted with some 
 freedom, although the statute authorizing the relief 
 seems to be merely declaratory of the general rule of 
 equity ;^^ and it is held, in several instances, that a re- 
 
 98 See "Whitney v, Buckman, 26 Cal. 447; Collier v. Sapp, 49 Ga. 
 93; Atlas Sav. etc. Assn. v. Kirklin, 110 Ga. 572, 35 S. E. 772 (one 
 in whose favor it has been finally adjudged that, as against an insol- 
 vent person, the former has the title to, and the right to the pos- 
 session of, given realty, but who is under an injunction, sued out at 
 the instance of others, preventing him from taking possession, is 
 entitled to have a receiver appointed to collect and hold rents which 
 such insolvent is seeking by judicial process to collect from the ten- 
 ants to whom he had undertaken to rent the premises) ; Stephens v. 
 Kaga, 142 Ind. 523, 41 N. E. 930 (receiver to take charge of crops 
 rendered unnecessary by a statutory bond, given by defendant on mo- 
 tion for a new trial, to pay all costs and damages which shall be re- 
 covered against him). Of course, a receiver will not be granted, 
 pending appeal, in favor of a party against whom judgment in an 
 ejectment suit has been rendered: Corbin v. Thompson, 141 Ind. 128, 
 40 N. E. 533 ("to have entertained the appellant's petition was to 
 deny the force and effect of a judgment adverse to the very claim 
 which his petition asserted"). 
 
 99 Code N. C, § 379: "A receiver may be appointed, before judg- 
 ment, on the application of either party, when he establishes an ap- 
 parent right to property which is the subject of the action, and 
 which is in the possession of an adverse party, and the property, or 
 its rents and profits, are in danger of being lost, or materially in- 
 jured or impaired." Under this statute, "where a party to an ac- 
 tion asks, as affirmative relief, the possession of land, and alleges that 
 his adversary, who wrongfully withholds it, is insolvent, and the lat- 
 ter directly admits or fails to deny the allegation, it only remains 
 for the plaintiff, in order to establish his right to the appointment of 
 a receiver to take charge of the rents and profits, to show that he 
 hag set up in an affidavit filed under the sanction of the court, or in 
 a verified pleading in the cause, used as an affidavit, an apparently 
 good title, either not controverted at all, or not unequivocally and 
 sufficiently denied by the affidavits of the claimant in posession": 
 Lovett V. Slocumb, 109 N. C. 110, 13 S. E. 893. And a statute re- 
 quiring the defendant in ejectment to give a bond for costs and dam- 
 ages before putting in a defense to the action does not abridge the
 
 5 87 EQUITABLE EEMEDIES. 158 
 
 ceiver may be awarded against an insolvent plaintiff in 
 possession, in a proper case.^^*^ 
 
 A receiver of mining property, the title to which is 
 in litigation, is rarely appointed, and still more rarely 
 is such receiver directed to extract the ore, since that is 
 of the very substance of the estate.^*^^ Exceptional cases 
 are those where there are timbers to be repaired, or 
 water to be controlled ; or, in the case of oil-wells, when 
 it is necessary for the preservation of the claim that 
 the work be continued to prevent the oil from being- 
 drawn off by the operation of wells on adjoining 
 ground; or where a receiver is necessary in order that 
 the annual work required by law may be performed for 
 the benefit of the party who may ultimately be adjudged 
 entitled to the ground.^ "^ 
 
 power of the court to appoint a receiver to secure the rents and 
 profits: Kron v. Dennis, 90 N. C. 327. And where the plaintiff was 
 charged with cutting and carrying away timber of peculiar value, he 
 was compelled to give a bond to answer possible damages, and a 
 receiver was appointed to take and state accounts of the timber 
 so cut until the cause should be heard on its merits, although the 
 plaintiff was solvent: John L. Roper Lumber Co. v. Wallace, 93 N. C. 
 23. See, further, Stith v. Jones, 101 N. C. 360, 8 S. E. 151 (receiver 
 appointed on conflicting evidence). 
 
 100 Horton v. White, 84 N. C. 297 (against plaintiff suing in forma 
 pauperis); McNair v. Pope, 96 N. C. 502, 2 S. E. 54; John L. Eoper 
 Lumber Co. v. Wallace, 93 N. C. 23 (receiver, for a special purpose, 
 against a solvent plaintiff). 
 
 101 Tornanses v. Melsing, 106 Fed. 775, 784, 45 C. C. A. 615; ap- 
 proved in Heinze v. Butte & Boston Consol. Min. Co., 61 C. C. A. 63, 
 126 Fed. 1, 11. See, also, Thomas v. Nantahala Marble etc. Co., 58 
 Fed. 485, 7 C. C. A. 330 (injunction proper, but not receiver); Big- 
 bee v. Summerour, 101 Ga. 201, 28 S. E. 642 (a most vigorous and con- 
 vincing opinion); Hickey v. Parrot Silver etc. Min. Co., 25 Mont. 
 164, 64 Pac. 330; Stith v. Jones, 101 N. C. 360, 8 S. E. 151 (receiver 
 not to operate the mine, bat to receive the proceeds) ; Chicago & Al- 
 legheny Oil etc. Co. V. XJ. S. Petroleum Co., 57 Pa. St. 83. 
 
 102 Tornanses v. Melsing, 106 Fed. 775, 784, 45 C. C. A. 615, by 
 Eoss, Cir. J.; Nevada Sierra v. Home Oil Co., 98 Fed. 673 (receiver 
 denied). For other instances where receivers were appointed, under 
 special circumstances, see, in addition to the partition cases meo-
 
 159 EECEIVERS IN PLACE OF TRUSTEES. §§ 88,39 
 
 § 88. Class III: In General — "The third class em- 
 braces those cases in which the person holding title to 
 the property is in a position of trust or of quasi trust, 
 and is violating his fiduciary duties by misusing, mis- 
 applying, or wasting the property, and is thereby en- 
 dangering the rights of other persons beneficially in- 
 terested. In many, but not in all, the instances fall- 
 ing within this class, the plaintiff has, and is seeking 
 to enforce, some equitable estate or interest; but what- 
 ever be the nature of his right, the ground of the rem- 
 edy is always the misconduct of the party holding the 
 title, and the consequent danger of loss."^°^ 
 
 § 89. (1) Receivers in Suits Against Trustees, for Breach 
 of Trust — Courts will not interfere with trustees' pos- 
 session by a receiver unless there is real danger from 
 their misconduct.^°^ Instances of such misconduct, 
 
 tioned in the last section, Ulman v. Clark, 75 Fed. 868 (coal mine; 
 receiver's appointment did not disturb defendants' operations, but 
 merely secured the rents and profits, which were in danger of being 
 scattered among many persons, thus imposing on the plaintiff the 
 necessity of bringing many suits) ; Stith v. Jones, 101 N. C 360, 8 
 S. E. 151. 
 
 103 4 Pom. Eq. Jur. § 1334. 
 
 104 4 Pom. Eq. Jur., § 1334, note; 72 Am. St. Eep. 95; Barkley v. 
 Eeay, 2 Hare, 306; Browell v. Eeed, 1 Hare, 434; Latham v. Chafee, 
 7 Fed. 525; Vose v. Eeed, 1 V^oods, 647, 651, Fed. Cas. No. 17,011; 
 Orphan Asylum v. McCartee, Hopk. Ch. (N. Y.) 429; Poythress v. 
 Poythress, 16 Ga. 406. "The court would not, at the instance of one 
 of several parties interested in an estate, displace a competent trus- 
 tee, or take the possession from him, unless he willfully or ignorantly 
 permitted the property to be placed in a state of insecurity, which 
 due care or conduct would have prevented": Barkley v. Eeay, supra. 
 Where the defendant had been in possession of the property and ad- 
 ministering the trust for a period of over seven years, the court 
 would not, on a bill for his removal, appoint a receiver, before an- 
 swer and a hearing on the merits, if there was not great danger that 
 the complainant would suffer irreparable loss by any delay: Latham 
 V. Chafee, supra. Even the mingling of the trust funds with his own, 
 by one of the trustees, does not render a receiver necessary, when it 
 is not alleged that the fund is in danger: Orphan Asylum v. Mc-
 
 § 89 EQUITABLE REMEDIES. 160 
 
 fraudulent or negligent, resulting in danger to the trust 
 property and justifying the appointment of a re- 
 ceiver,^"'' are as follows: Where there was an abuse of 
 trust by an insolvent party in possession of real prop- 
 erty, whereby the rents and profits were exposed to 
 imminent .danger of loss;^°^ where a trustee of lands is 
 insolvent, has sold parts of the trust property and mis- 
 applied the proceeds, has never accounted to the plain- 
 tiff for the rents and profits, but has applied the same 
 to his own use, and has proposed to sell other parts of 
 the trust property within a short time before the plain- 
 tiff's application for an injunction and receiver ;^°'' 
 where the trustee has conveyed lands in fraud of the 
 equitable interest of the cestui que trust ;'^^^ where the 
 trustee, in violation of the condition of his trust, loaned 
 trust funds to a firm of which he was a member, which 
 afterwards became insolvent ;^°' where trustees of lease- 
 hold property had failed to keep the premises in proper 
 
 Cartee, supra. The court is extremely reluctant to interfere where 
 the trust is vested by the legislature in state officers: Vose v. Eeed, 
 supra. 
 
 The refusal of one of several trustees to act does not necessitate 
 the appointment of a receiver: Browell v. Eeed, 1 Hare, 434; com- 
 pare Tait V. Jenkins, 1 Younge & C. Ch. 492; otherwise where some of 
 the trustees refuse to act, and all the parties in interest are before 
 the court and consent to the appointment: Brodie v. Barry, 3 Mer. 
 695. 
 
 105 "It is the impending danger to the trust fund which induces 
 the court to interpose with these extraordinary remedies in the case 
 of an express trust, where a trustee has failed to take possession of 
 the trust property, and has allowed it to remain in the hands of the 
 debtor, who may dispose of it at any moment, or where he is about 
 to part with it in a fraudulent manner, so that it will be lost to the 
 trust estate, or where the trustee is clearly proven to have been 
 guilty of acts of fraud, so that the fund is not safe in his hands for 
 any length of time": Latham v. Chafee, 7 Fed. 525. 
 
 106 Chase's Case, 1 Bland Ch. 206, 17 Am. Dec. 277. 
 
 107 Albright v. Albright, 91 N. C. 220. 
 
 108 Gunn V. Blair, 9 Wis. 352. 
 
 109 North Carolina K. E. Co. v. Wilson, 81 N. C. 223.
 
 161 EECEIVERS IN PLACE OF TRUSTEES. § 90 
 
 repair, so as to prevent a forfeiture of tlie leasehold ;^^*^ 
 where the rents of the property had not been collected, 
 and encumbrancers were threatening to take possession 
 of the estate.^ ^^ A receiver has been appointed in an 
 action to compel an accounting, where the trustee 
 wrongfully withheld the fund because of an alleged 
 claim for damages against the beneficiary arising from 
 a breach of contract.^ ^^ For further instances, see the 
 next two sections. 
 
 § 90. Same; Assignees for Benefit of Creditors. — In the 
 following cases the validity of the assignment was not 
 attacked, but a receiver was sought on the ground of 
 some incapacity or misconduct of the assignee, whereby 
 the interests of the creditors were supposed to be im- 
 periled.^ ^^ Such receiver was not appointed, on the 
 allegation of the insolvency of one of the sureties of 
 the assignee, where there was no allegation of misfeas- 
 ance or misappropriation on the latter's part, since the 
 creditors had a perfect security in the statutory bond 
 given by the assignee.^ ^* Upon general allegations of 
 benefits to be derived from the appointment, the court 
 has no authority to place an estate, assigned for the 
 benefit of creditors, in the hands of a receiver to be sold, 
 upon the application of a preferred creditor, though 
 
 110 In re Fowler, 16 Ch. D. 723. 
 
 111 Hart V. Tulk, 6 Hare, 611; and where rents have fallen in ar- 
 rears, owing to dissensions among the trustees: Wilson v. Wilson, 2 
 Kean, 249. 
 
 112 Hagenback v. Hagenback etc. Co., 59 Fed. 14. 
 
 In England, under the provisions of the Judicature Act, where the 
 defaulting trustee is out of the jurisdiction, so that service of a 
 writ of attachment could not be effected, a judgment against him 
 for the payment of money into court may be enforced by the ap- 
 pointment of a receiver of his equitable interest in property: In re 
 Coney, L. R. 29 Ch. D. 993. 
 
 113 See 72 Am. St. Rep. 43-45, note. 
 
 114 Dozier v. Logan, 101 Ga. 173, 28 S, E. 612. 
 
 Equitable Remedies, Vol. I — 11
 
 I 90 EQUITABLE KEMEDIES. 162 
 
 the assignor and assignee consent to the appoint- 
 ment.^^° Nor are the youth and inexperience of an as- 
 signee, and the fact that he is not required to give a 
 bond, and that his property is inconsiderable when com- 
 pared with the value of the property conveyed by the 
 assignment, sufficient to justify his removal and the ap- 
 pointment of a receiver in his stead.^^® If a trustee 
 with power to continue the assignor's business is un- 
 faithful or incompetent, the remedy is to require that 
 he furnish ample security for the protection of those 
 interested, or that he be removed, and another who is 
 suitable be substituted. It would be an extreme case, 
 if such could exist, which would call for the appoint- 
 ment of a receiver to execute an express trust continu- 
 ous in its nature, and not merely to hold pendente lite 
 for the removal of the trustee.^ ^"^ 
 
 The cases seem to indicate that receivers are com- 
 monly appointed with somewhat greater freedom than 
 in other classes of trusts. Thus, insolvency of the as- 
 signee has been held to be a good cause for a receiver 
 of his trust.^^® Refusal of the assignee to proceed with 
 the execution of the trust,^^^ or his resignation,^ 2° pre- 
 sents a proper ground for a receiver to protect the as- 
 sets for the benefit of the creditors. The violation of 
 his duty to keep the trust fund separate and distinct 
 from his individual funds, and a separate bank account, 
 
 115 Penzel Grocer Co. v. VP^illiams, 53 Ark. 81, 13 S. W. 736. 
 lie Jones V. McPhillips, 77 Ala, 314. 
 
 11 V Etowah Min. Co. v. Wills Val. Min. etc. Co., 106 Ala. 492, 17 
 South, 522. 
 
 118 Haggarty v. Pittman, 1 Paige, 298, 19 Am. Dec. 434; City 
 Nat. Bank v. Bridges, 114 N. C. 381, 19 S. E. 642 (insolvent trustee 
 fails to give a bond when required by the court); Connah v. Sedg- 
 wick, 1 Barb. 210; Eeed v. Emery, 8 Paige, 417, 35 Am. Dec. 720. 
 
 119 Suydam v. Dequindre, Harr. Ch. (Mich.) 347. 
 
 120 McFerran v. Davis, 70 Ga. 661; or upon any vacancy: Andrews 
 V. Wilson's Assignee, 114 Ky. 671, 71 S. W. 890.
 
 163 EECEIVEES IN PLACE OF EXECUTORS, ETC. § 91 
 
 to the injury, or great risk of injury, of those who may 
 be ultimately entitled to the fund, requires the substitu- 
 tion of a receiver.^ 2^ Gross mismanagement, with fail- 
 ure to comply with the terms of the assignment, result- 
 ing in danger of waste of the assets, clearly justifies 
 the interposition of the court ^-^ 
 
 § 91. (2) In Suits Against Executors and Administrators. 
 A strong case is required to induce the appointment 
 of a receiver to take assets from the custody of an exec- 
 utor or administrator, displacing his authority. There 
 must be actual misconduct or fraud, and immediate 
 danger of loss, or the appointment of a receiver cannot 
 be justified.^ ^^ Such a case is not presented by charges 
 
 121 Wagner v. Coen, 41 W. Va. 351, 23 S. E. 735; or continuing to 
 carry on the business of the assignor, and keeping no account of the 
 sales of the assigned property: Connah v. Sedgwick, 1 Barb. 210; Hart 
 V. Crane, 7 Paige, 37. 
 
 122 Jones V. Dougherty, 10 Ga. 273; Cohen & Co. v. Morris & Co., 
 70 Ga. 313; Goldsmith v. Fletcheimer, 16 Ivy. Law Eep. 433, 28 S. W. 
 211. See, also, Eobinson v. Worley, 19 Ky. Law Eep. 791, 42 S. W. 
 95. 
 
 123 Eandle v. Carter, 62 Ala. 95, 102, where it is further said: 
 "The executor is appointed by the testator, who has the right to 
 declare in whom the management of his estate after his death shall be 
 reposed. The administrator derives his authority from, and is, in 
 a qualified sense, the ofiicer of another court of exclusive jurisdiction, 
 compelled to give and keep a bond, with sufficient sureties, for the 
 prompt and faithful discharge of the trusts of the administration. 
 The court is, therefore, reluctant to interfere with them by the ap- 
 pointment of a receiver A different rule obtains, and should 
 
 obtain, than in the case of trustees. The court of probate has, by 
 the constitution, a general jurisdiction over the grant of letters testa- 
 mentary, and of administration, in which is involved the power of 
 revocation. The grant may be revoked whenever gross misconduct 
 is shown, or, whenever a necessity exists, additional security may be 
 required. Protection against loss to creditors, legatees, or next of kin, 
 and security for a faithful administration, are within the power of 
 the parties and the competency of that court. There can but seldom 
 be a necessity for the exercise of any other preventive or protective 
 remedy than such as that court can afford, and hence, though a court
 
 f 91 EQUITABLE KEMEDIES. 164 
 
 stated on information and belief,^ -^ or otlierwise lack- 
 ing in certainty.^ ^^ The mere poverty of the executor 
 does not justify his removal, in the absence of proof of 
 danger of loss to the estate.^ ^® Disagreement between 
 executors as to the management of the estate does not 
 warrant the interposition of the court by means of a 
 receiver,i27 Where the application is based on the 
 executor's incompetency and misconduct, his resigna- 
 tion and the appointment of an administrator de bonis 
 non remove the ground for a receiver.^ ^^ The relief is 
 said to be designed to prevent future injury, and not 
 to redress past grievances.^ ^^ 
 
 Notwithstanding the emphatic expressions of reluc- 
 tance to interfere noted above, it has been observed 
 that the "strong" or "extraordinary" cases in which a 
 receiver may be appointed seem to be quite common 
 in chancery practice.^ ^'^ Any serious misconduct, gross 
 
 of equity has the jurisdiction to appoint a receiver of the assets, prac- 
 tically taking the administration into its hands, the jurisdiction is not 
 exercised, unless there is manifest danger of loss which may be ir- 
 reparable." See, also, substantially to the same effect, Werborn v. 
 Kahn, 93 Ala. 201, 9 South. 729; Haines v. Carpenter, 1 Woods, 262, 
 Fed. Cas. No. 5905, affirmed in 91 U. S. 254, 23 L. ed. 345; Dougherty 
 V. McDougald, 10 Ga. 121; Harrup v. Winslet, 37 Ga. 655; Powell v. 
 Quinn, 49 Ga. 523; Pom. Eq. Jur., § 1334, note; 72 Am. St. Kep. 63- 
 66, note. 
 
 124 Haines v. Carpenter, 1 Woods, 262, Fed. Cas. No. 5905. 
 
 125 Powell V. Quinn, 49 Ga. 523. 
 
 126 Knight V. Duplessis, 1 Ves. 324; Anonymous, 12 Ves. 4; How- 
 ard V. Papera, 1 Madd. (86) 141; Johns v. Johns, 23 Ga. 31; Fair- 
 bairn V. Fisher, 4 Jones Eq. 390. 
 
 127 Wanneker v. Hitchcock, 38 Fed. 383; Fairbairn v. Fisher, 4 
 Jones Eq. 390. 
 
 128 Lunsford v. Lunsford, 122 Ala. 242, 25 South. 171. 
 
 129 Dougherty v. McDougald, 10 Ga. 121. 
 
 130 See note, 72 Am. St. Eep. 651. In Ex parte Walker, 25 Ala. 
 81, it was said: "Nothing is more common in chancery practice than 
 the appointment of receivers in suits against executors, when there 
 u danger to the fund without such appointment; so, also, if he has 
 wasted the effects, or in other respects has misconducted himself.
 
 165 EECEIVERS IN MORTGAGE FORECLOSURE. S 92 
 
 mismanagement, misuse, or misappropriation of funds 
 by an irresponsible executor or administrator which 
 imperils the estate justifies the appointment of a re- 
 ceiver.^ ^^ While mere insolvency of the executor is 
 not sufficient, an actual adjudication of bankruptcy, it 
 has been held, presents a strong ground ;^^^ and his re- 
 moval from the state, leaving both his cestui que trust 
 and the trust estate within the state, amounts to an 
 abandonment of his trust, and, it seems, renders it the 
 duty of the court to appoint a receiver.^ ^^ 
 
 § 92. (3) Receivers in Suits to Enforce Mortgages — Eng- 
 lish Rule — In England, by the rule that prevailed prior 
 to the year 1860, an equitable mortgagee was, in gen- 
 eral, alone entitled to a receiver, because a legal mort- 
 gagee could at any time gain possession after a default, 
 and thus secure the rents and profits.^ ^^ Yet where, 
 
 Although mere poverty, of itself, may not furnish sufficient ground 
 for the appointment of a receiver, as against an executor, yet where 
 it is coupled with other facts or circumstances, showing that he has 
 proceeded not in accordance with law (as where he has made private 
 sales of the property of the estate, or is dealing with it on his private 
 account), especially where it is doubtful whether he is, in fact, the 
 legal representative, or is not shorn of his authority by removal, the 
 court, in all such cases, should promptly secure the effects by placing 
 them in the hands of a receiver." 
 
 131 Middleton v. Dodswell, 13 Ves. 266 (appointment may be made 
 before answer); Ex parte Walker, 25 Ala. 81; Calhoun v. King, 5 Ala. 
 523; V<*^erborn v. Kahn, 93 Ala. 201, 9 South, 729; Chappell v. Akin, 
 39 Ga. 177; Ware v. Ware, 42 Ga. 408; Thompson v. Orser, 105 Ga. 
 482, 30 S. E. 626; Jenkins v. Jenkins, 1 Paige, 243; Stairley v. Rabe, 
 McMull. Eq. (S. C.) 22; Price v. Price, 23 N. J. Eq. 428. 
 
 132 For the reason that there is no person to protect the assets: 
 Steele v. Cobham, L. R. 1 Ch. App. 325; and see Gladden v. Stoneman, 
 1 Madd. (86) 141, note. 
 
 133 Ex parte Galluchat, 1 Hill Eq. (S. C.) 148; Elting v. First Nat. 
 Bk., 173 111. 368, 50 N. E. 1095. For further instances, see Marvine v. 
 Drexel, 68 Pa. St. 362; Du Val v. Marshall, 30 Ark. 230. 
 
 134 4 Pom. Eq. Jur., § 1334, note 3; 27 Am. St. Rep. 794; Berney v. 
 Sewell, 1 Jacob & W. 647, per Lord El don; Sturch v. Young, 5 Beav.
 
 f 93 EQUITABLE EEMEDIES. 166 
 
 under peculiar circumstances, the legal mortgagee 
 could not obtain possession, a receiver might be ap- 
 pointed ;^^^ and the jurisdiction was freely exercised in 
 behalf of equitable, as distinguished from legal, mort- 
 gagees.^^* 
 
 § 93. General Rule in United States; Receiver Appointed 
 
 When Security Inadequate and Mortgagor Insolvent The 
 
 rule is well settled in a strong majority of the states 
 where the question has been passed upon, that a receiver 
 of the rents and profits will generally be appointed, at 
 the application of the mortgagee, upon the commence- 
 ment of a suit to foreclose the mortgage, upon a suflQ- 
 cient showing of two things: First, that the property 
 covered by the mortgage is an inadequate security for 
 the payment of the debt, with the accrued interest and 
 
 557; Ackland v. Gravener, 31 Beav. 482, per Komilly, M. E. By the 
 statute 23 & 24 Vict., c. 145, §§ 11-32, it is provided that the mort- 
 gagee, in all cases where the payment of the principal is in arrear one 
 year, or the interest six months, or after any omission to pay any in- 
 surance premium which, by the terms of the deed, ought to be paid, 
 may obtain the appointment of a receiver of the rents and profits of 
 the estate mortgaged. As to the effect of authority given to the mort- 
 gagee to appoint a receiver, previous to this statute, see Jolly v. 
 Arbuthnot, 4 De Gex & J. 224; and as to the appointment of a re- 
 ceiver and manager under the liberal provisions of the Judicature Act, 
 see Peek v. Trinsmaran Iron Co., L. E. 2 Ch. D. 115; Makins v, Percy, 
 Ibotson & Sons, [1891] 1 Ch. 133; Campbell v. Lloyd's etc. Bank.l Ch. 
 136, note; Edwards v. Standard etc. Stock Syndicate, [1893] 1 Ch. 
 574; County etc. Bank v. Colliery Co., [1895] 1 Ch. 629; Whitley v. 
 Challis, [1892] 1 Ch. 64. 
 
 135 Ackland v. Gravener, 31 Beav. 482; Shakel v. Duke of Marl- 
 borough, 4 Madd. 463; Truman v. Eedgrave, L. E. 18 Ch. D. 547. See, 
 also, Warner v. Eising Fawn Iron Co., 3 Woods, 514, Fed. Cas. No. 
 17,188, where a receiver was granted to enforce the right to immediate 
 possession of the mortgaged premises conferred on a trustee for bond- 
 holders by the deed of trust, which right the trustee refused to exer- 
 cise at the request of the bond-holders. 
 
 136 Pom. Eq. Jur., § 1334, note; Meaden v. Sealey, 6 Hare, 620; 
 Holmes v. Bell, 2 Beav. 290 (equitable mortgage by deposit of title 
 deeds).
 
 167 BECEIVEES IN MORTGAGE FORECLOSURE. § 93 
 
 costs of suit; and second, that the mortgagor, or other 
 person who is personally liable for the payment of the 
 debt, is insolvent, or beyond the jurisdiction, or in such 
 doubtful financial standing that an execution against 
 him for any deficiency would be unavailing.^ ^'^ This 
 
 137 United States.— Kountze v. Omaha Hotel Co., 107 XJ. S. 378, 2 
 Sup. Ct. 911, 27 L. ed. 609; Grant v. Phoenix Mut. L. Ina. Co., 121 
 U. S. 105, 7 Sup. Ct. 841, 30 L. ed. 905; Shepherd v. Pepper, 133 U. S. 
 626, 10 Sup. Ct. 438, 33 L. ed. 706; American Nat. Bank v. North- 
 western Mut. L. Ins. Co., 89 Fed. 610, 32 C. C. A. 275; Boyce v. Con- 
 tinental Wire Co., 125 Fed. 741. 
 
 Alabama.— Hughes v. Hatchett, 55 Ala. 631; Lehman v. Tallassee 
 Mfg. Co., 64 Ala. 567; Scott v. Ware, 65 Ala. 174; Lindsay v. American 
 Mtg. Co., 97 Ala. 412, 11 South. 470; Jackson v. Hooper, 107 Ala. 634, 
 18 South. 254; Warren v. Pitts, 114 Ala. 65, 21 South. 494. 
 
 Arkansas.— Price v. Dowdy, 34 Ark. 285. 
 
 California. — La Societe Francaise v. Salheimer, 57 Cal. 623; Mont- 
 gomery V. Merrill, 65 Cal. 432, 4 Pac. 414; Simpson v. Ferguson, 112 
 Cal. 180, 53 Am. St. Rep. 201, 40 Pac. 104, 44 Pac. 484. 
 
 Florida,— Pasco v. Gamble, 15 Fla. 562 (a valuable case). 
 
 Georgia.— The rule appears to be recognized in Hart v. Respeas, 89 
 Ga. 87, 14 S. E. 910. 
 
 lUinois.— Haas v. Chicago Bldg. Soc, 89 111. 498. 
 
 Indiana. — Main v. Ginthert, 92 Ind. 180; Storm v. Ermantrout, 89 
 Ind. 214. 
 
 Kentucky.— Douglass v. Cline, 12 Bush, 608; Wooley v. Holt, 14 
 Bush, 788. 
 
 Mississippi.— Hill v. Robertson, 24 Miss. 368; Whitehead v. Wooten, 
 43 Miss. 523; Myers v. Estell, 48 Miss. 372; Phillips v. Eiland, 52 
 Miss. 721. 
 
 Nevada.— Hyman v. Kelly, 1 Nev. 179. 
 
 New York.— Sea Insurance Co. v. Stebbins, 8 Paige, 565; Astor 
 V. Turner, 11 Paige, 436, 43 Am. Dec. 766; Shotwell v. Smith, 3 
 Edw. Ch. 588; Post v. Dorr, 4 Edw, Ch. 412; Quincy v. Cheeseman, 
 4 Sandf. Ch. 405; Hollenbeck v. Donnell, 94 N. Y. 342, 29 Hun, 94; 
 Warner v. Gouverneur, 1 Barb. 36; Syracuse City Bank v. Tallman, 
 31 Barb. 201; Smith v. Tiffany, 13 Hun, 671. 
 
 North Carolina.— Kerchner v. Fairley, 80 N. C. 24; Oldham v. 
 First Nat. Bank, 84 N. C. 304; Durant v. Crowell, 97 N. C. 367, 2 
 S. E. 541 (alternative of a receiver or a bond to secure to plaintiflE 
 the rents, profits and damages to which he may be adjudged en- 
 titled).
 
 1 93 EQUITABLE BEMEDIES. 168 
 
 relief does not grow directly out of the relations of the 
 parties or the stipulations contained in the mortgage, 
 but out of equitable considerations alone. It is not, 
 therefore, a matter of strict right, but is addressed to 
 the sound discretion of the court.^^^ The relief, not be- 
 ing a matter of strict legal right, is held, in many of 
 the states which have adopted the "lien theory" of mort- 
 gages,^ ^^ not to be affected by statutes entitling the 
 
 South Carolina.— Greenwood Loan & G. Co. v. Childs, 67 S. C. 
 251, 45 S. E. 167. 
 
 Tennessee.— Henshaw v. "Wells, 9 Humpli. 568. 
 
 Texas.— Rogers v. Southern Pine Co., 21 Tex. Civ. App. 48, 51 S. 
 W. 26; De Berrera v. Frost (Tex. Civ. App.), 77 S. W. 637. 
 
 Virginia.— Bristow v. Home Bldg. Co., 91 Va. 18, 20 S. E. 946. 
 
 Wisconsin. — Finch v. Houghton, 19 Wis. 150; Schreiber v. Carey, 
 48 Wis. 208, 4 N. W. 124; Morris v. Branchaud, 52 Wis. 187, 8 N. 
 W. 883; Sales v. Lusk, 60 Wis. 490, 19 N. W. 362. 
 
 In Indiana, Nebraska and South Dakota, the statutes are inter- 
 preted as permitting the appointment of a receiver on the ground of 
 insufficiency of the mortgaged property to discharge the mortgage 
 debt, without averment or proof of the mortgagor's insolvency: 
 Ponder v. Tate, 96 Ind. 330; Hursh v. Hursh, 99 Ind. 500; Sellers 
 V. Stoffel, 139 Ind. 468, 39 N. E. 52; Jacobs v. Gibson, 9 Neb. 380, 
 
 2 N. W. 893; Philadelphia Mtg. etc. Co. v. Goes, 47 Neb. 804, 66 N. 
 W. 843; Waldron v. First Nat. Bank, 60 Neb. 245, 82 N. W. 856; 
 Philadelphia Mortgage & T. Co. v. Oyler, 61 Neb. 702, 85 N. W. 
 899; Roberts v. Parker, 14 S. Dak. 323, 85 N. W. 591. The statutes 
 of several states contain a provision that a receiver may be ap- 
 pointed "in an action by a mortgagee for the foreclosure of his 
 mortgage and sale of the mortgaged property, where it appears that 
 the mortgaged property is in danger of being lost, removed, or ma- 
 terially injured, or that the condition of the mortgage has not been 
 performed, and that the property is probably insufficient to dis- 
 charge the mortgage debt." These states are Arkansas; California, 
 Code Civ. Proc, § 564; Idaho; Kentucky; Montana; Nebraska, Civ. 
 Code, § 266; New York; North Dakota; Ohio; South Dakota, Comp. 
 Laws, § 5015; Washington; Wyoming. 
 
 138 Syracuse City Bank v. Tallman, 31 Barb. 201; Hollenbeck v. 
 Donnell, 94 N. Y. 342, 346. "The mortgagor holds the estate in 
 some respects as a trustee for the benefit of the mortgagee": 
 Schreiber v. Carey, 48 Wis. 208, 4 N. W. 124. 
 
 139 See Pom. Eq. Jur., § 1188.
 
 169 EECEIVEBS IN MORTGAGE FORECLOSUEE. § 94 
 
 mortgagor to possession upon default and until sale 
 •under the decree of foreclosure. ^^*^ 
 
 Both of the conditions mentioned must co-exist/** 
 and be alleged and satisfactorily proved; if either the 
 inadequacy of the security^^^ or the financial irresponsi- 
 bility^^^ of the person liable for the debt is not shown, 
 the application for a receiver of rents and profits must 
 be denied. 
 
 § 94. Same; Rule not Followed in Certain States. — On 
 the other hand, the courts of a number of states hold 
 that they are prohibited by their statutes, which entitle 
 the mortgagor to the possession of the mortgaged prop- 
 erty until sale under the foreclosure decree, from as- 
 sisting the mortgagee to obtain indirectly, through the 
 agency of a receiver, the benefit of the rents and profits 
 incidental to ownership and possession.^^^ It is said, 
 
 140 See the cases above from Florida, Indiana, Nebraska, Nevada, 
 New York, Texas and Wisconsin; especially Schreiber v. Carey, 48 
 Wis. 208, 4 N. W. 124. 
 
 141 Except in Indiana, Nebraska and South Dakota; see note 137, 
 supra. 
 
 142 Shotwell V. Smith, 3 Edw. Ch. (N. Y.) 621; Whitehead v. 
 Wooten, 43 Miss. 523; Rogers v. Southern Pine Co., 21 Tex. Civ. 
 App. 48, 51 S. W. 26; Lindsay v. American Mortgage Co., 97 Ala. 
 412, 11 South. 770. In the last case it was said: "It is clear that 
 when lands are the subject of a mortgage security the mortgagee 
 is not entitled to a receiver unless it is made to appear that the 
 preservation of the rents and profits is necessary to the mortgagee 's 
 security. If the lands are of sufficient value to secure the debt, the 
 possession of the mortgagee should not be disturbed by the appoint- 
 ment of a receiver. It is incumbent on the mortgagee to show that 
 such necessity exists." But that the appellate court is reluctant 
 to disturb a finding as to the inadequacy of the security, see Ponder 
 V. Tate, 96 Ind. 330. 
 
 143 Myers v. Estell, 48 Miss. 372; Warren v. Pitts, 114 Ala. 65, 
 21 South. 494. In the latter case the property had been sold under 
 a judgment against the mortgagor, and the purchaser was in posses- 
 sion and solvent. 
 
 144 California.— Guy v. Ide, 6 Cal. 99, 65 Am. Dec. 490; but the 
 rule is now changed; see note to last section.
 
 { 94 EQUITABLE EEMEDIES. 170 
 
 however, that the fact that the premises are inadequate 
 security, or that the mortgagor is insolvent, or both 
 combined, might be a very material consideration in 
 passing upon the propriety or necessity of appointing 
 
 Iowa.— White V. Griggs, 54 Iowa, 650, 7 N. W. 125; American 
 Invest. Co. v. Farrar, 87 Iowa, 437, 54 N. W. 361. See, also, Callanan 
 V. Shaw, 19 Iowa, 183. 
 
 Michigan.— Wagar v. Stone, 36 Mich. 364; Beecher v. Marquette 
 etc. Co., 40 Mich. 307; Hazeltine v. Granger, 44 Mich. 503, 7 N. W. 
 74; Fifth Nat. Bank v. Pierce, 117 Mich. 376, 75 N. W. 1058; Union 
 Mut. L. Ins. Co. V. Union Mills Plaster Co., 37 Fed. 286, 3 L. K. A. 
 90 (Michigan decisions held binding on the federal courts sitting 
 in Michigan, since the right of the mortgagor to the rents and 
 profits is a substantial right, and the appointment of a receiver is 
 not a mere question of practice). 
 
 Minnesota.— Marshal] etc. Bank v. Cady, 76 Minn. 112, 78 N. W. 
 978; National Fire Ins. Co. v. Broadbent, 77 Minn. 175, 79 N. W. 676. 
 
 South Carolina. — Hardin v, Hardin, 34 S. C. 77, 27 Am. St. Kep. 
 786, 12 S. E. 936. 
 
 Washington.— Norf or v. Busby, 19 Wash. 450, 53 Pac. 715. 
 
 In Wagar v. Stone, 36 Mich. 367, Marston, J., said: "Since the 
 passage of this act, which prevents the mortgagee from obtaining 
 possession until he has acquired an absolute title to the mortgaged 
 premises, the mortgage binds only the lands. The rents and profits 
 of the land do not enter into or form any part of the security. At 
 the time of giving the security both parties understand that the 
 mortgagor will, and that the mortgagee will not, be entitled to the 
 rents, issues or profits of the mortgaged premises, until the title shall 
 have become absolute upon a foreclosure of the mortgage. Until 
 the happening of this event, the mortgagor has a clear right to the 
 possession and to the income which he may derive therefrom, and 
 the legislature, by the passage of this statute, contemplated that he 
 should have such possession and income to aid him in paying the 
 debt. It would be a novel doctrine to hold that the mortgagee had 
 a right to the profits incident to ownership, and yet that he had 
 neither a legal title or right to possession. The legislature, in de- 
 priving him of the means of enforcing possession, intended thereby 
 also to cut off and deprive him of all rights which he could have 
 acquired in case he obtained possession before acquiring an abso- 
 lute title. To deprive him of this particular remedy, and yet allow 
 him in some other proceeding to, in effect, arrive at the same result, 
 would be but a meaningless proceeding, and would not be securing 
 to the mortgagor those substantial rights which it was the evident 
 intent he should have. We do not overlook the fact that a contrary
 
 171 KECEIVEES IN MORTGAGE FORECLOSUEE. § 95 
 
 a receiver in order to prevent waste, or for the purpose 
 of preserving the premises.^ ^^ 
 
 In New Jersey, a similar result is reached by ad- 
 herence to the former English doctrine, that the legal 
 mortgagee must appropriate the property to the pay- 
 ment of his debt by means of his legal remedy of eject- 
 ment. Inadequacy of the security and insolvency of 
 the mortgagor are not in themselves regarded as suf- 
 ficient grounds to warrant the appointment of a re- 
 ceiver in that state.^*® 
 
 § 95. Other Grounds. — The mortgagee's case may be 
 strengthened by other circumstances in addition to the 
 essential conditions for relief above mentioned. Such 
 circumstances are, the mortgagor's neglect to pay taxes, 
 or to comply with his agreement to keep the premises 
 insured ;^^'^ and where such neglect is shown, the court 
 will not closely scrutinize conflicting evidence as to the 
 value of the mortgaged property, but will be satisfied 
 with less convincing proof than usual of the inadequacy 
 of the security.^ ^^ 
 
 doctrine has been held elsewhere under a similar statute. We can- 
 not avoid thinking, however, that for us to so hold would be a mere 
 evasion of our statute." 
 
 145 Marshall etc. Bank v. Cady, 76 Minn. 112, 78 N. W. 978; 
 National Fire Ins. Co. v. Broadbent, 77 Minn. 175, 79 N. W. 676. 
 
 146 Cortleyou v. Hatheway, 11 N. J. Eq. 39, 64 Am, Dec. 478; 
 Best V. Schermier, 6 N. J. Eq. 154; Frisbie v. Bateman, 24 N, J. 
 Eq. 28; Horner v. Dey, 61 N. J. Eq. 554, 49 Atl. 154. 
 
 147 Shepherd v. Pepper, 133 U. S. 626, 10 Sup. Ct. 438, 33 L. ed. 
 706; American Nat. Bank v. Northwestern Mut. L. Ins. Co. 89 Fed. 
 610, 32 C. C. A. 275; Eslava v. Crampton, 61 Ala. 507; Jackson v. 
 Hooper, 107 Ala. 634, 18 South. 254; Harris v. United States etc. 
 Inv. Co., 146 Ind. 265, 45 N. E. 328; Philadelphia Mortgage & T. 
 Co. V. Oyler, 61 Neb. 702, 85 N. W. 899; Finch v, Houghton, 19 Wis. 
 150; Schreiber v. Carey, 48 Wis. 208, 4 N. W. 124; Winkler v. 
 Magdeburg, 100 Wis. 421, 76 N. W. 332. 
 
 148 Eslava v. Crampton, 61 Ala. 507; Jackson v. Hooper, 107 
 Ala. 634, 18 South, 254; Winkler v. Magdeburg, 100 Wis. 421 76 N. 
 W. 332.
 
 S ii6 EQUITABLE EEMEDIES, 172 
 
 Id the group of states mentioned in the last sec- 
 tion it is held that the statutes abrogating the com- 
 mon-law theory of the mortgage have not abrogated the 
 power to afford such remedies for the protection of the 
 mortgagee's equitable rights as do not rest upon the 
 doctrine of the legal title or right of possession being in 
 the mortgagee.^ ^* 
 
 § 96. General Considerations Governing the Appointment. 
 A court should not appoint a receiver in a foreclosure 
 action unless the facts establish a case which clearly 
 invokes the exercise of the equitable power of the court 
 to grant that relief; for the right to the rents and 
 profits — in those states at least which have discarded 
 the common-law theory of the mortgage — does not groAV 
 directly out of the relation of the parties as a matter 
 of strict right, but is founded upon equitable considera- 
 tions which address themselves to the sound discretion 
 
 of the court.^^® 
 
 « 
 
 149 Lowell V. Doe, 44 Minn. 144, 46 N. W. 297; Union Mut. Life 
 Ins. Co. V. Union Mills Plaster Co., 3.7 Fed. 286, 3 L. E. A. 90. In 
 the former case the grounds for the appointment were, in addition 
 to the inadequacy of the security and the insolvency of the mort- 
 gagor, non-payment of taxes, probable cancellation of the insurance, 
 and permanent impairment of the value of the property by the ces- 
 sation of its use for hotel purposes. In the latter case it was held 
 that the mere disuse of a manufacturing plant was not such serious 
 waste as to justify the appointment of a receiver. In South Caro- 
 lina, the mere non-payment of taxes is not a suflEicient ground, where 
 it is not alleged that the security is inadequate, and where the stat- 
 ute provides that the mortgagee may pay the taxes and include the 
 amount in the mortgage debt: Nathans v. Steinmeyer, 57 S. C. 386, 
 35 S. E. 733. 
 
 As to the grounds of appointment in New Jersey, see Cortleyou v. 
 Hatheway, 11 N. J. Eq. 39, 64 Am. Dec. 478; Mahon v. Crothers, 28 
 N. J. Eq. 567; Stockman v. Wallis, 30 N. J. Eq. 449; Chetwood v. 
 Coffin, 30 N. J. Eq. 450; Brasted v. Sutton, 30 N. J. Eq. 462. 
 
 150 Sales v. Lusk, 60 Wis. 490, 19 N. V\f. 362, citing Syracuse 
 City Bank v. Tallman, 31 Barb. 201, 208; Rider v. Bagley, 84 N. Y. 
 461; Schreiber v. Carey, 48 Wis. 208, 4 N. W. 124.
 
 173 KEGEIVERS IN MORTGAGE FORECLOSURE. S 9/ 
 
 In an often cited case the rule is laid down in a nega- 
 tive form, that "a receiver in mortgage cases will never 
 be appointed unless it is clearly shown that the security 
 is inadequate, or that the rents and profits have been 
 expressly pledged for the debt, or that there is im- 
 minent danger of waste, removal, or destruction of the 
 property. There must be some strong special reason 
 for it."^^^ The substance of this rule has been em- 
 bodied in the statutes of many of the states in a posi- 
 tive form.^^2 
 
 Receivers should not be appointed simply because 
 an occasion for their appointment is anticipated or may 
 in the future arise. The occasion must exist when the 
 appointment is made.^^^ The insufficiency of the se- 
 curity on which the appointment is grounded must be 
 an insufficiency existing at the time when the applica- 
 tion is made or acted on, not merely one that may arise 
 at some future date.^^* 
 
 § 97. Effect of Stipulations in the Mortgage. — That a 
 mortgage contains a clause mortgaging the rents and 
 profits as an additional security for the debt does not 
 require the court to appoint a receiver in an action to 
 foreclose the mortgage. Unless the land is inadequate 
 security the appointment of a receiver is an unneces- 
 sary annoyance and hardship.^ ^^ It seems, however, 
 that such a clause may cause the court to dispense with 
 proof of the mortgagor's insolvency. ^^"^ In Iowa a dif- 
 ference between the right to the appointment of a re- 
 ceiver under a mortgage which pledges rents and profits, 
 
 151 MorriBon v. Buckner, Hempst. 442, Fed. Gas. No. 9844. 
 
 152 See ante, § 93, note 137. 
 
 153 Chaldron Banking Co. v. Mahoney, 43 Neb. 214, 61 N. W. 594. 
 
 154 Laune v. Hauser, 58 Neb. 663, 79 N. W. 555. 
 
 155 Brick ▼. Honibeck, 19 Misc. Eep. (N. Y.) 218, 43 N. Y. Supp. 
 301. 
 
 156 Butler V. Frazer (Sup. Ct.), 57 N. Y. Supp. 900.
 
 § 97 EQUITABLE REMEDIES. 174 
 
 and under one that does not, is recognized, and the ap- 
 pointment of a receiver in the former case, on proof of 
 the mortgagor's insolvency and the inadequacy of the 
 security, is said to be a matter of course ;^^'^ but in a 
 later case, where the mortgage gave the mortgagee the 
 right of possession in case of default on the part of the 
 mortgagor, and pledged the rents and profits, such 
 pledge was construed to take effect only in case posses- 
 sion should be taken by the mortgagee, and the appoint- 
 ment of a receiver was held to be unauthorized.^^* 
 
 Stipulations in the mortgage providing that the mort- 
 gagee may have a receiver of rents and profits on de- 
 fault by the mortgagor have been frequently considered 
 by the inferior courts of New York. It is there held 
 that such a stipulation gives the mortgagee no absolute 
 right to the appointment of a receiver, and will not be 
 enforced when, under all the circumstances, it is in- 
 equitable to take the property out of the owner's hands 
 pending the action of foreclosure; but, at the same 
 time, such a clause is entitled to weight, and is to be 
 considered, among other features of the case, in deter- 
 mining the propriety of making such appointment.^ ^^ 
 It will not be enforced when the security is ample.^^** 
 
 157 Des Moines Gas Co. v. West, 44 Iowa, 25. 
 
 158 Swan V. Mitchell, 82 Iowa, 307, 47 N. W. 1042, explained in 
 American Investment Co. v. Farrar, 87 Iowa, 437, 54 N. W. 361. 
 
 159 C. B. Keogh Mfg. Co. v. Whiston, 14 N. Y. Supp. 344 (ap- 
 proved in Bagley v. Illinois Trust & Sav. Bank, 199 111. 76, 64 N. E. 
 1085); Eidlitz v. Lancaster, 40 App. Div. 446, 59 N. Y. Supp. 54; 
 Fletcher v. Krupp, 35 App. Div. 586, 55 N. Y. Supp. 146. 
 
 160 Degener v. Stiles, 53 Hun, 637, 6 N. Y. Supp. 474; and see 
 Jarvis v. McQuaide, 24 Misc. Rep. 17, 53 N. Y. Supp. 97; United 
 States Life Ins. Co. v. Ettiuger, 32 Misc. Rep. 378, 66 N. Y. Supp. 1. 
 Where the plaintiff's affidavit showed that default had been made 
 in the payment of insurance, taxes, and interest, and stated that 
 he did not believe that the premises afforded adequate security, the 
 stipulation for the appointment of a receiver was properly enforced: 
 Fletcher v. Krupp, 35 App. Div. 586, 55 N. Y. Supp. 146.
 
 175 RECEIVERS IN MORTGAGE FORECLOSURE. S 97 
 
 In Iowa, it is held that the stipulation is a controlling 
 fact in the case, and will be enforced as the parties in- 
 tended, even when there is no showing of the insol- 
 vency of the party personally liable for the mortgage 
 debt, and the inadequacy of the security is in dispute ;^^^ 
 but the mortgagee is not entitled to a receiver on an 
 application made at the time of taking judgment, if the 
 agreement therefor contemplated such appointment at 
 the commencement of the action.^^^ In Illinois, too, a 
 pledge of the rents and profits, and a stipulation for a 
 receiver to collect and apply them to the payment of 
 the debt and costs, authorizes the appointment of a re- 
 ceiver, w ithout regard to the solvency of the mortgagor ; 
 the authority arises from the contract, the express 
 words giving a lien on the rents and profits.^ ^^ 
 
 In California, on the other hand, it is held that where 
 a court has no authority under the law to appoint a 
 receiver, such authority cannot be conferred by consent 
 or stipulation of the parties; in such case consent of 
 parties cannot confer jurisdiction upon a court, or im- 
 pose upon it the duty of taking care of and disposing 
 
 161 "We think it is not to be seriously questioned that the court 
 could, by a stipulation of the parties, place the property in the 
 hands of a receiver, to be held under its direction. And it seems to 
 us equally clear that the parties could, by contract, when the prop- 
 erty was pledged on cecurity, settle the conditions on which it should 
 be preserved and applied. The parties, in making the contract, seem 
 to have been in such doubt, as to the sufficiency of the property as 
 security, as to provide that if proceedings to foreclose should be 
 commenced, a receiver should take the rents and profits, and apply 
 them, and otherwise preserve the property, under the direction of 
 the court. We see nothing in such a contract that is unconscionable 
 or against public policy; nor do we see why it should not be enforced 
 as the parties intended": Hubbell v. Avenue Investment Co., 97 
 Iowa, 135, 66 N. W. 85. 
 
 162 Paine v. McElroy, 73 Iowa, 81, 34 N. W. 615, 
 
 163 First Nat. Bank v. Illinois Steel Co., 174 111. 140, 51 N. E. 
 200j Bagley v. Illinois Trust & Sav. Bank, 199 111. 76, 64 N, E. 1085.
 
 S &8 EQUITABLE EEMEDIES. 176 
 
 of the property.^ ^^ In Michigan, also, and in Oregon, 
 such stipulations are held to be contrary to the public 
 policy of those states as expressed in the statutes which 
 secure a mortgagor in his possession until a foreclosure 
 has become absolute.^ ^^ 
 
 § 98. Time of the Appointment. — ^A receiver will not 
 generally be appointed when the mortgage debt is not 
 yet due.^*^^ "SA'hen the mortgage debt is only partly 
 due, and the usual grounds for the appointment of a 
 receiver on foreclosure proceedings exist, a receiver of 
 the whole premises may be appointed, provided that 
 the premises are indivisible, or so circumstanced that 
 they must inevitably be sold in one parcel ;^^^ but where 
 the mortgaged premises are divided into two parcels 
 nearly equal, which can be sold separately without in- 
 jury to the parties interested, and there is no pledge 
 or specific lien by which the accruing rents of that por- 
 tion of the premises not yet liable to be sold are con- 
 stituted a security to the mortgagee for that portion 
 
 164 "It might as well be said that in a suit upon a promissory 
 note, or upon any simple contract for the payment of money, a 
 stipulation in the instrument by which the debt was evidenced that 
 the court might appoint a receiver upon suit brought would give 
 jurisdiction to the court to appoint such receiver; or that there 
 could be a specific performance of a contract in any kind of a case 
 because the parties had stipulated for a decree of specific perform- 
 ance": Baker t. Varney, 129 Cal. 564, 79 Am. St. Eep. 140, 62 Pac. 
 100. The order appointing the receiver in this case, based solely 
 vipon the stipulation of the parties in the mortgage, was held to be 
 void and subject to collateral attack. See, also, Scott v. Hotchkiss, 
 115 Cal. 94, 47 Pac. 45. 
 
 165 Hazeltine v. Granger, 44 Mich, 503, 7 N. W. 74; Couper v. 
 Shirley, 75 Fed. 168, 21 C. C A. 288, aflarming s. c, sui nom. Thomp- 
 son V, Shirley, 69 Fed. 484. 
 
 166 Bank of Ogdensburgh v. Arnold, 5 Paige, 38; Mayfield v. 
 Wright (Ky.), 54 S. W. 864. 
 
 167 Quincy v. Cheeseman, 4 Sandf. Ch. (N. Y.) 405; Hollenbeck v. 
 Donnell, 94 N. Y. 342; Buchanan v. Berkshire etc. Ins, Co., 96 Ind. 
 610, 527 et seq.
 
 17T RECEIVERS IN MORTGAGE FORECLOSURE. S 98 
 
 of the mortgage not due, the latter is not entitled to a 
 receivership for the protection of the unmatured por- 
 tion of the debt, or of that portion of the premises as to 
 which his right to sell has not yet accrued, but only as 
 to one of the parcels.^ ^^ 
 
 The question of the appointment of a receiver after 
 the decree of foreclosure, or after the sale under the 
 decree and during the statutory period of redemption, 
 has arisen in a number of the states, and has received 
 very diverse answers. It may be stated as a general 
 rule, that a receiver may be appointed, after judgment 
 and before sale, especially when the sale is delayed for 
 some considerable length of time thereafter ;^^^ and the 
 denial of a receiver in foreclosure before judgment is 
 
 168 Hollenbeck v. Donnell, 94 N. Y. 342. 
 
 169 Schreiber v. Carey, 48 Wis. 208, 219, 4 N. W. 124, citing Bank 
 V. Tallman, 31 Barb. 201; Smith v. Tiffany, 13 Hun, 671; Astor v. 
 Turner, 11 Paige, 436, 43 Am. Dec. 766; Hackett v. Snow, 10 Irish 
 Eq. 220; Cooke v. Gwyn, 3 Atk. 690; Thomas v. Davies, 11 Beav. 
 29. See, also, Brinkman v. Ritzinger, 82 Ind. 358. In the first 
 ease the court say: "We think there would be great propriety in 
 many cases in delating the appointment until after the rights of the 
 parties are fixed by the judgment, and especially so where there is a 
 dispute as to the amount actually due upon the mortgage, or where 
 there is a question as to what real estate the mortgage covers. In 
 cases of this kind great injustice might be done by the appoint- 
 ment of a receiver before judgment, whereas after judgment, when 
 the amount of the mortgage claim is fixed, and the property subjected 
 to the payment of the same ascertained, the court is in a much more 
 advantageous position for determining whether equity requires the 
 appointment of a receiver or not." The plaintiff's laches may in- 
 fluence the court to deny his application: Cone v. Combs, 18 Fed. 
 576, 5 McCrary, 651. When the right to a receiver depended on a 
 stipulation for appointment on commencement of foreclosure, the 
 mortgagee is not entitled to a receiver at the time of taking judg- 
 ment: Paine v. McElroy, 73 Iowa, 81, 34 N. W. 615. In England, 
 the mortgagee cannot have a receiver after a judgment for fore- 
 closure absolute, the action being at an end; "the plaintiff is, in 
 fact, asking for a receiver order against himself, in respect of the 
 interest which is all vested in him": Wills v. Luff, L. R. 38 Ch. D. 
 197, 
 
 Equitable Remedies, Vol. 1—12
 
 § 98 EQUITABLE EEMEDIES. 178 
 
 not a bar to an application for a receiver after judg- 
 ment.^''® In Nebraska, however, it is held that a re- 
 ceiver is unnecessary, unless an appeal is taken, as the 
 mortgagee may proceed to sell the property in twenty 
 days after the final decree in foreclosure.^'^^ 
 
 In several states the owner of the equity of redemp- 
 tion has a right to the possession of the premises until 
 the expiration of a specified time — usually a year — 
 from the date of the foreclosure sale. It is held in 
 Iowa and in California that this right to the possession 
 forbids the appointment of a receiver on the applica- 
 tion of the mortgagee who has purchased the premises 
 at the foreclosure sale.^'^^ In Illinois and Indiana, on 
 the other hand, the question of appointment after sale 
 appears to be governed by much the same considera- 
 tions as if the application were made at the commence- 
 ment of the suit. If the property is bid in at the sale 
 for the full amount of the debt, interest and costs, there 
 is no occasion for the appointment or continuance of a 
 
 170 Nash V. Meggett, 89 Wis. 486, 61 N. W. 283. 
 
 171 Chadron Banking Co. v. Mahoney, 43 Neb. 214, 61 N. W. 594. 
 That a receiver is proper after the taking of an appeal, see East- 
 man V. Cain, 45 Neb. 48, 63 N. W. 127; Philadelphia Mortgage etc. 
 Co. V. Goos, 47 Neb. 804, 66 N. W. 843. 
 
 172 White -v. Griggs, 54 Iowa, 650, 7 N. W. 125; West v. Conant, 
 100 Cal. 231, 34 Pac. 705. In the latter case it is held that a stat- 
 ute which entitles the purchaser to receive from the tenant in pos- 
 session the rents of the property sold on execution, or the value of 
 the use and occupation, during the period for redemption, does not 
 vrarrant the appointment of a receiver to oust the judgment debtor. 
 Compare the case of Hill v. Taylor, 22 Cal. 191, where a receiver 
 was appointed on behalf of the purchaser on foreclosure of the mort- 
 gagor's part interest in a gold mine, the mortgagor being insol- 
 vent, working the mine and refusing to pay the purchaser his share 
 of the dividends, with a likelihood that the mine would be exhausted 
 before the expiration of the redemption period. In Iowa, a stipula- 
 tion in the mortgage for the appointment of a receiver during the 
 period for redemption is controlling upon the court: Hubbell v. 
 Avenue Inv. Co., 97 Iowa, 135, 66 N. W. 85.
 
 179 EECEIVEES IN MORTGAGE FORECLOSURE. | 98 
 
 receiver.' '^^ In Illinois, where there is a deficiency de- 
 cree, the appointment is made on the same grounds as 
 before the decree — viz., the insuflSciency of the security 
 and the insolvency of the mortgagor,^'^^ or a stipulation 
 in the mortgage for such appointment during the period 
 of redemption.' '^° In Indiana, similarly, it is held that 
 the redemption statute postpones the time for the end- 
 ing of the equity of redemption, and gives a year's ad- 
 ditional existence to the mortgage lien; and, notwith- 
 standing that the redemption statute is silent as to the 
 judgment debtor's liability for the rents and profits dur- 
 ing the year of his occupancy, the mortgage creditor, 
 who has purchased at the foreclosure sale, may, in case 
 of the inadequacy of the security and the insolvency 
 
 173 Bogardus v. Moses, 181 111. 554, 54 N. E. 984; Davis v. Dale, 
 150 111. 239, 37 N. E. 215; World Bldg, etc. Co. v. Marlin, 151 Ind. 
 630, 52 N. E. 198; except where be is appointed or continued for 
 the benefit of a second mortgagee, who is a party to the suit, the 
 amount of the bid being insufficient to satisfy both mortgages: 
 Eoach V. Glos, 181 lU. 440, 54 N. E. 1022. 
 
 174 First Nat. Bank v. Illinois Steel Co., 174 111. 140, 51 N. E. 
 200; Roach v. Glos, 181 111. 440, 54 N. E. 1022; Christie v. Burns, 
 83 111. App. 514; Haas v. Chicago Building Society, 89 111. 498, 506. 
 In the last case it was said: "The necessity for the appropriation 
 of the rents to the payment of the mortgage debt may frequently 
 not appear until after both, decree and sale. The amount due is 
 often matter of dispute, and can only be determined by the decree, 
 and what the property will sell for can only be ascertained with 
 certainty from the result of the judicial sale. If an appropriation 
 of the rents on the indebtedness is justified by the surrounding 
 facts before sale, we see no good reason why the same and more 
 weighty facts existing after sale may not warrant a similar pro- 
 cedure. Tlie security, plainly, is not exhausted by the sale, for there 
 is a fund included in it which is secondarily liable. It is true, the 
 mortgagee has elected to foreclose and sell; but then he has pur- 
 sued that remedy to the end, and without getting satisfaction of his 
 debt, and he may avail himself of any just and equitable means of 
 collecting the residue." 
 
 175 First Nat. Bank v. Illinois Steel Co., 174 111. 140, 51 N. E. 200; 
 Oak'^ord V. Robinson, 48 111. App. 270.
 
 I 99 EQUITABLE EEMEDIES. 180 
 
 of the debtor, have a receiver to collect and hold the 
 rents and profits, during the year allowed for redemp- 
 tion, of such parts of the land as are in the possession of 
 the mortgagor's tenants.^''^® 
 
 § 99. Effect of Assignment of the Mortgaged Premises; of 
 Administration Thereof; and of Homestead Right Therein. — 
 It has been held that if the mortgagee is entitled to a 
 receiver, his right thereto is not affected by the fact 
 that the mortgagor has made an assignment of the prop- 
 erty for the benefit of creditors. ^"^^ 
 
 It has been held that the administrator of a deceased 
 mortgagor is entitled to no exception in his favor ;^'^* 
 but in Missouri, where an administrator has taken pos- 
 session of the intestate's land under an order of the 
 probate court, and his bond secures the faithful applica- 
 tion of the rents, the necessity for the appointment of 
 a receiver does not exist, since the property is already 
 in custodia legis.^"^^ 
 
 Whether a homestead may ever be placed in the pos- 
 session of a receiver at the commencement of a suit to 
 foreclose a mortgage thereon is also a question on which 
 
 176 Merritt v. Gibson, 129 Ind. 155, 27 N, E. 136, 15 L. E. A. 277, 
 examining Connelly v. Dickson, 76 Ind. 444; Travelers' Ins. Co. 
 T. Brouse, 83 Ind. 62; Sheeks v. Klotz, 84 Ind. 471, and other In- 
 diana cases decided under previous statutes. The principal case 
 contains an interesting and very able discussion of the distinction 
 between an execution sale, and a sale based on a decree foreclosing 
 a mortgage, of the purpose of the redemption statutes, and of their 
 effect upon the right to a receiver. 
 
 177 Sweet & Clark Co. v. Union Nat. Bank, 149 Ind. 305, 49 N. E. 
 159; Bristow v. Home Bldg. Co., 91 Va. 18, 20 S. E. 947; and see 
 Post V. Dorr, 4 Edw. Ch. 412. Contra, Seignious v. Pate, 32 S. C. 
 134, 17 Am. St. Eep. 846, 10 S. E. 880; but the grounds alleged for 
 the appointment in the last case were soon after declared by the 
 same court to be insufficient: Hardin v. Hardin, 34 S. C. 77, 27 Ana. 
 St. Eep. 794, 12 S. E. 936. 
 
 178 Jacobs V. Gibson, 9 Neb. 380, 2 N. W. 893. 
 
 1T» St. Louis Nat. Bank v. Field, 156 Mo. 306, 56 S. W. 1095.
 
 181 EECEIVERS IN MORTGAGE FORECLOSURE. S 100 
 
 the courts are at variance. The question has received 
 a negative answer in Nebraska ;^^'^ while in Minnesota, 
 although in such a case the court should ordinarily re- 
 quire a somewhat stronger showing, yet, when the 
 debtor mortgages his homestead it is held that he sub- 
 jects the property to all the legal and ecjuitable rights 
 of a mortgagee, among which is the right to have a re- 
 ceiver appointed when necessary to prevent waste or 
 preserve the property.^ ^^ 
 
 § 100. To What the Receiver's Title Extends. — The re- 
 ceiver's title to the rents extends to those, and those 
 only, which accrue after his appointment, or such as 
 have theretofore accrued but have not yet come to the 
 liands of the owner of the equity of redemption or his 
 assignee.^ ^2 He has no title to crops sold on execution 
 
 180 "We cannot read into the law the incidental remedies which 
 accompany mortgage liens ordinarily or in general. Any invasion 
 of the homestead right will not be extended beyond the fair, direct 
 import of the enactment by which it may be sought to make it less 
 absolute": Chadron L. & B. Assn. v. Smith, 58 Neb. 469, 78 N. W. 
 938; Laune v. Hauser, 58 Neb. 663, 79 N. W. 555. See, also, Hoge 
 V. Hollister, 8 Baxt. (Tenn.) 533; Nash v. Meggett, 89 Wis. 486, 61 
 N. W. 283 (an order excepting the homestead is proper). It has 
 been held in Nebraska, however, that where the homestead right 
 does not extend to the whole property, and there is no difficulty in 
 separating it, a receiver may be appointed to take charge of the 
 excess: Sanford v. Anderson (Neb.), 95 N. W. 632. 
 
 181 Marshall etc. Bank v. Cad.y, 75 Minn. 241, 77 N. W. 831; 
 Lowell v. Doe, 44 Minn. 144, 46 N. W. 297. 
 
 182 Lofsky v. Manjer, 3 Saiulf. Ch. (N. Y.) 69; Rider v. Bagley, 
 84 N. Y. 461; Wyckoff v. Scofield, 98 N. Y. 475; Lawrence v. Conlon, 
 26 Misc. Rep. 44, 56 N. Y. Supp. 345; Alabama Nat. Bank v. Mary 
 Lee Coal etc. Co., 108 Ala. 288, 19 South. 404; but see Bank of 
 Woodland v. Heron, 120 Cal. 614, 54 Pac. 1006. The mortgagor can- 
 not evade the rule by leasing the premises pendente lite for one or 
 more years, and taking payment of the rent in advance; the lessee, 
 in such case, must either surrender or attorn to the receiver, or par 
 him a reasonable rent for the use of the premises from the date of 
 the appointment: Gaj^nor v. Blewett, 82 Wis. 313, 33 Am. St. Rep. 
 47, 52 N. W. 313. His lien on the rents is superior to the rights of 
 the mortgagor's assignee in bankruptcy: Post v. Dorr, 4 Edw. Ch.
 
 § 101 EQUITABLE REMEDIES. 182 
 
 against the mortgagor before his appointment.*^' In 
 California it is held that he cannot be directed before 
 the decree of foreclosure to take possession of the crops 
 of the mortgagor upon which the mortgagee has no lien 
 previous to the appointment.^ ^^ 
 
 In an action to foreclose a mortgage which covers 
 only the interests of a lessee, it is not competent for the 
 court to appoint a receiver who should represent not 
 only that interest, but also that of the lessor.* ^^ 
 
 § 101. Receiver on Application of Junior Mortgagee. — 
 Where a prior mortgagee is in possession of the mort- 
 gaged premises, the court will not, upon the applica- 
 tion of a subsequent mortgagee, appoint a receiver, to 
 the prejudice of such prior mortgagee, while anything 
 remains due on his mortgage ;*^^ but to justify the 
 court's refusal on the ground of the prior mortgagee's 
 possession it must clearly appear that his mortgage has 
 not been fully paid.*®''' In case the prior mortgagee has 
 not taken possession, it is well settled that, on a proper 
 showing, the court may appoint a receiver on behalf of 
 a junior mortgagee, without the consent of the prior en- 
 cumbrancer.*®* 
 
 (N. Y.) 412. The propriety of the appointment of the receiver can- 
 not be questioned, in an action by him to recover rents, by one who 
 was a party to the suit in which the receiver was appointed: Good- 
 hue V. Daniels, 54 Iowa, 19, 6 N. W. 129. 
 
 183 Favorite v. Deardoff, 84 Ind. 555. 
 
 184 Locke V. Klunker, 123 Cal. 231, 55 Pae. 993; Bank of Wood- 
 land V. Heron, 120 Cal. 614, 52 Pac. 1006; Simpson v. Ferguson, 112 
 Cal. 180, 53 Am. St. Eep. 201, 40 Pac. 104, 44 Pac. 484. 
 
 185 Woodward v. Winehill, 14 Wash. 394, 44 Pac. 860. 
 
 186 See 27 Am. St. Rep. 798; Berney v. Sewell, 1 Jacob & W. 647, per 
 Lord Eldon; Rowe v. Wood, 2 Jacob & W. 553; Codrington v. Parker, 16 
 Ves. 469; Hiles v. Moore, 15 Beav. 175; Trenton Banking Co. v. Wood- 
 ruff, 3 N. J. Eq. 210. 
 
 187 Codrington v. Parker, 16 Ves. 469; Hiles v. Moore, 15 Beav. 175. 
 
 188 Bryan v. Cormick, 1 Cox, 422; Dalmer v. Dashwood, 2 Cox, 378; 
 and cases in the following notes.
 
 183 EECEIVEKS IN MORTGAGE FOEECLOSUEE. § 102 
 
 The usual grounds for the appointment are, the in- 
 solvency of the person liable for the debt, and the in- 
 sufficiency of the property to secure the plaintiff's 
 mortgage and those prior to it;^^^ or in jurisdictions 
 where these are not recognized as sufficient grounds, 
 the additional fact that the owner, who is in possession, 
 refuses to keep down the interest on the first mort- 
 gage ;^'>'* or, in New Jersey, the facts that the buildings 
 upon the mortgaged premises have been burned down, 
 and the property generally has been permitted to go to 
 waste, through the fault of the person in possession, 
 or that fraud or bad faith is shown by the misappro- 
 priation of the rents and proflts.^^^ 
 
 § 102. Same; Right to Rents as Between Prior and Junior 
 Mortgagees — It is an established rule that a junior 
 mortgagee, who succeeds iu getting a receiver ap- 
 
 189 Roach V. Glos, 181 111. 440, 54 N. E. 1022; Buchanan v. Berk- 
 shire etc. Ins, Co., 96 Ind. 510; Pearson v. Kendrick, 74 Miss. 235, 21 
 South. 37 (the application of a junior encumbrancer said to stand upon 
 much more favorable grounds than that of first mortgagee) ; Eckluad 
 V. Willis, 42 Neb. 737, 60 N. W. 1026; Browning v. Stacey, 52 App. 
 Div. 626, 65 N. Y. Supp. 203; Fletcher v. Krupp, 35 App. Div. 586, 
 55 N. Y. Supp. 146. In the first case cited, a receiver appointed at 
 the instance of a first mortgagee, after a sale which realized only 
 enough to satisfy the first mortgage, was continued for the collection 
 of rents and profits during the year of redemption, for the benefit 
 of the second mortgagee, and against a purchaser of the equity of 
 redemption. 
 
 190 Haugan v. Netland, 51 Minn. 552, 53 N. W. 873; cf. Myton v. 
 Davenport, 51 Iowa, 583, 2 N. W. 462. In Wisconsin, it was held, in 
 Sales V. Lusk, 60 Wis. 490, 19 N. W. 362, where the security had not 
 decreased since the mortgage was given, and there was no evidence 
 that the property was being mismanaged by the mortgagor's assignees 
 in possession, that although the mortgagors were non-resident and in- 
 solvent, a receiver should not have been appointed upon the applica- 
 tion of a plaintiff who sought thereby to intercept the rents and profits 
 and divert them to his own use to the prejudice of the prior mort- 
 gagees. 
 
 191 Cortelyou v. Hatheway, 11 N. J. Eq. 39, 64 Am. Dec. 478.
 
 § 102 EQUITABLE REMEDIES. 134 
 
 pointc'd, becomes thereby entitled, as agaiust a prior 
 mortgagee, to the rents collected during the appoint- 
 ment, until such prior mortgagee obtains the appoint- 
 ment of a receiver, or the extension of the existing re- 
 ceivership, for his own benefit. This is on the principle 
 that a mortgagee acquires a specific lien upon the rents 
 by obtaining the appointment of a receiver of them, 
 and if he be a second or third encumbrancer, the court 
 will give him the benefit of his superior diligence over 
 his senior in respect to the rents which accrued during 
 the time that the elder mortgagee took no measures to 
 have the receivership extended to his suit and for his 
 benefit.^ ^2 But this exclusive right of a junior mort- 
 gagee to the income of a receivership created upon his 
 application is limited to the cases in which either (1) 
 the senior mortgagee was not a party to the action, or, 
 (2) the senior mortgagee being a party, the receiver 
 was appointed for the benefit of the junior mortgagee 
 and the receivership was not extended to the other 
 liens. If (3) the senior mortgagee was a party to the 
 action, and the appointment was general in its nature, 
 
 192 Howell V. Eipley, 10 Paige, 43; Post v. Dorr, 4 Edw. Ch. 412; 
 Eanney v. Peyser, 83 N. Y. 1; Washington Life Ins. Co. v. Fleischauer, 
 10 Hun, 117; Sanders v. Lord Lisle, 4 Irish Eq. 43; Bank v. Barry, 
 3 Irish Eq. 443; Lanauze v. Eailway Co., 3 Irish Eq. 454; Nesbit v. 
 Wood, 22 Ky. Law Eep. 127, 56 S. W. 714. The prior mortgagee may 
 either have an additional receiver appointed for his own benefit, thus 
 displacing the rights of the receiver previously appointed to the fur- 
 ther receipt of rents: Holland Trust Co. v. Con. Gas. etc. Co., 85 Hun, 
 455, 32 N. Y. Supp. 830; Hennessy v. Sweeney, 57 N. Y. Supp. 901; 
 or the existing receivership may be extended, on the application of 
 the prior mortgagee: Putnam v. McAllister (Sup. Ct.), 57 N. Y. Supp. 
 404; Anderson v. Matthews, 8 Wyo, 513, 58 Pac. 898. 
 
 In Virginia, the general rule is not followed, but the receiver is re- 
 garded as appointed in behalf of all the parties, and must account 
 according to the priorities of the different encumbrances: Beverley 
 V. Brooke, 4 Gratt. 187.
 
 185 KECEIVEKS IN MORTGAGE EOPtECLOSlRE. § 103 
 
 the respective rights to the rents are controlled bv tlie 
 priority of the liens.^^^ 
 
 § 103. Receivers in Behalf of Others than Mortgagees. — 
 A receiver will not be appointed, on the application 
 of a mortgagor, against a mortgagee who is in posses- 
 sion by virtue of an agreement with a mortgagor, where 
 the mortgagee practiced no fraud in obtaining posses- 
 sion, and it is undisputed that the mortgagor is in- 
 debted to the mortgagee. Waste, alone, by the mort- 
 gagee in possession is not a sufficient ground for a re- 
 ceiver in such a case.^^* 
 
 The right to have a receiver appointed, in aid of pro- 
 ceedings to foreclose a mortgage, does not rest exclu- 
 sively with the mortgagee, or his assignee, but may be 
 exercised by any other party to the proceeding, when 
 necessary to protect his interest in the subject-matter of 
 the litigation. ^^^ 
 
 193 Miltenberger v. Eailroad Co., 106 U. S. 28G, 307, 1 Sup. Ct. 140, 
 158; Williamson v. Gerlach, 41 Ohio St. 682; Bank v. Tilden, 66 Hun, 
 ■635, 22 N. Y. Supp. 11; Cross v. Will Co. Nat. Bank, 177 111. 33, 52 
 N. E, 322. See, also, New Jersey Title G. & T, Co. v. Cone, 64 N. J. 
 Eq. 45, 53 Atl. 97. Contra, that it is immaterial whether the ap- 
 pointment was general: Nesbit v. Wood, 22 Ky. Law Eep. 127, 56 
 S. W. 714. 
 
 194 Brundage v. Home etc. Loan Assn., 11 W^ash. 277, 39 Pac. 666. 
 T'or receivers in behalf of judgment creditors of the mortgagor, se« 
 post, § 107. 
 
 195 Main v. Ginthert, 92 Ind. 180. In this case a wife joined her 
 husband in the execution of a mortgage of his lands to secure his 
 debt; and her inchoate interest afterward becoming absolute by rea- 
 son of a sheriff's sale, according to a statute of the state, it was her 
 right, upon foreclosure of the mortgage, to have the other two-thirds 
 of the land exhausted before resort should be had to her interest. 
 Held, if the two-thirds were insufficient in value to satisfy the mort- 
 gage, and her husband was insolvent, she was entitled, pending the 
 suit, to have a receiver appointed of the rents and profits of the 
 two-thirds, so that, if necessary, they might be applied upon the 
 •debt. In Philadelphia Mortgage & T. Co. v. Oyler, 61 Neb. 702, 85
 
 § 104 EQUITABLE EEMEDIES. 186 
 
 § 104. Chattel Mortgages. — A receiver cannot be ap- 
 pointed in behalf of a chattel mortgagee except in a 
 suit to foreclose the mortgage.^^^ A receiver was re- 
 fused on foreclosure of a chattel mortgage where it ap- 
 peared prima facie that the mortgagor was solvent ;^^^ 
 and where it appeared that, although the mortgagor 
 was insolvent, the security was not being impaired, 
 whether any amount was due was controverted, and 
 the appointment of a receiver would absolutely destroy 
 the value of the property as a newspaper.^ ^^ Danger 
 of the loss or impairment of the mortgaged property 
 is a common ground for a receiver.^^^ Attachment 
 and sale thereunder by the unsecured creditors of the 
 mortgaged personalty does not defeat the right of the 
 mortgagee to a receiver of the property ;^*^*' and where 
 a chattel mortgagee filed his bill to foreclose, and an 
 attaching creditor of a person not the mortgagor seized 
 upon the same chattels, and by an auditor offered them 
 for sale, the court not only restrained the attaching 
 creditor from selling, but also appointed a receiver 
 with authority to make a sale, in order to avoid a mul- 
 tiplicity of suits and to preserve the value of the prop- 
 erty until the rights of the parties could be deter- 
 mined.^*^^ 
 
 N. W. 899, it was held that a receiver might be appointed on the 
 application of a defendant who was liable for a deficiency judgment, 
 on proper grounds being shown. 
 
 196 State V. Union Nat, Bank, 145 Ind. 537, 57 Am. St. Eep. 209^ 
 44 N. E. 585. 
 
 197 Stillwell-Bierce etc. Co. v. Williamston etc. Co., 80 Fed. 68. 
 i«8 Whitehead v. Hale, 118 N. C. 601, 24 S. E. 360. 
 
 1&9 Valley Nat. Bank v. H. B. Claflin Co., 108 Iowa, 504, 79 N. W. 
 279 (under the Iowa statute concerning receivers) ; Maish v. Bird, 59 
 Iowa, 307, 13 N. W. 298 (same); Logan v. Slade, 28 Fla. 699, 10 
 South. 25. 
 
 200 Cooper v. Berney Nat. Bank, 99 Ala. 119, 11 South. 760. 
 
 201 Wiedemann v. Sann (N. J. Eq.), 31 Atl. 211. See, also, Crow 
 V. Red River County Bank, 52 Tex. 362.
 
 187 EECEIVEES IN JUDGMENT CEEDITOES' SUITS. §§105,106 
 
 § 105. (4) Suits to Enforce Equitable Liens; Statutory 
 Liens. — Receivers may be appointed in suits to enforce 
 equitable liens under circumstances similar to those in 
 which they may be appointed in foreclosing mort- 
 gages.2°2 It has been held, however, that the plaintiff 
 in an action to foreclose a mechanic's lien has no in- 
 terest in the property, like that of a mortgagee, which 
 entitles him to a receiver of the rents and profits pen- 
 dente lite, in the absence of statutory authority for the 
 appointment. ^°^ On the other hand, it has been de- 
 cided that in an action to enforce a statutory lien for 
 machinery furnished to a steamboat, in the absence of 
 special provisions regulating the proceedings, the full 
 equity powers of the court may be invoked, and a re- 
 ceiver appointed to take charge of the property pending 
 the proceedings ;^°^ and the same is true of an action 
 to enforce a statutory lien of a laborer on an oil-well.^°* 
 
 § 106. Judgment Creditors' Suits: In General. — It has 
 been held, in many cases, that in a judgment creditor's 
 suit, on the return of the execution unsatisfied, it is 
 almost a matter of course to appoint a receiver to col- 
 
 202 Pom. Eq. Jur., § 1334; Price v. Dowdy, 34 Ark. 285 (inadequacy 
 of the security and insolvency of the mortgagor). Eeceiver to pro- 
 tect rent charge: Pritchard v. Fleetwood, 1 Mer. 54. Pending a 
 suit to subject a debtor's real estate to the payment of liens upon it, 
 the court may sequester the rents and profits of such real estate, and 
 appoint a receiver for that purpose, whenever it appears that the 
 debtor is insolvent: Ogden v. Chalfant, 32 W. Va. 559, 9 S. E. 879; 
 and see Dunlap v. Hedges, 35 W. Va. 287, 13 S. E. 656. 
 
 203 Meyer v. Seebald, 11 Abb. Pr., N. S., 326, note; Stone v. Tyler, 
 173 111. 147, 50 N, E. 688; contra, Webb v. Van Zandt, 16 Abb. Pr. 
 314. By the amendments of 1895 to the mechanic's lien law of Illi- 
 nois, § 12 (Laws 1895, p. 231), a receiver is allowed in such cases, "for 
 the same causes, and for the same purposes, as in cases of foreclosure 
 of mortgages." 
 
 204 Washington Iron Works Co. v. Jensen, 3 Wash. 584, 28 Pac. 
 1019. 
 
 205 Gallagher v. Kearns, 27 Hun, 375.
 
 § 106 EQUITABLE REMEDIES. 188 
 
 lect and preserve the judgment debtor's property pend- 
 ing the litigation. 2*^® If the debtor has property, the 
 return of the execution unsatisfied yields the inference 
 that the property will be misapplied; while if there is 
 nothing for the receiver to take, the defendant cannot 
 be injured by the appointment, and the complainant 
 proceeds at the peril of costs.^°^ Indeed, it is declared 
 to be the duty of a complainant who has obtained an 
 injunction upon such a bill, restraining the defendant 
 from collecting his debts or disposing of property which 
 might be liable to waste or deterioration, to apply to the 
 court and have a receiver appointed without any unrea- 
 sonable delay. 2*^® 
 
 It is usually a prerequisite to the filing of a creditor's 
 bill that execution must have been returned unsatis- 
 fied upon the plaintiff's judgment; unless the purpose 
 of the suit is merely to set aside a fraudulent convey- 
 ance or transfer and thus remove an obstacle which 
 may render the execution inefficient. In the latter case 
 it is usually held sufficient if the plaintiff has proceeded 
 
 206 Bloodgood V. Clark, 4 Paige (N. Y.), 574; Osborn v. Heyer, 
 2 Paige, 343; Fitzburgh v. Everingham, 6 Paige, 29; Bank of Monroe 
 V. Scbermerhorn, Clarke Ch. (N. Y.) 214; Lent v. McQueen, 15 How. 
 Pr, 313; Gage v. Smith, 79 111. 219; Lutt v. Grimont, 17 111. App. 308; 
 Hirsch v. Israel, 106 Iowa, 498, 76 N. W. 811; Turnbull v. Prentiss 
 Lumber Co., 55 Mich. 587, 21 N. W. 345; Johnson v. Tucker, 2 Tenn. 
 Ch. 398. The court has a broad discretion in the appointment of a 
 receiver in a creditor's suit where an execution has been returned un- 
 satisfied: Bagley & Co. v. Seudden, 66 Mich. 97, 33 N. W. 47; Dutton 
 V. Thomas, 97 Mich. 93, 56 N. W. 229. That the court has authority 
 to appoint a receiver in all cases where it entertains jurisdiction of 
 a creditor's bill, see Livingston v. Swafford Bros. etc. Co., 12 Colo. 
 App. 331, 56 Pac. 351. That on application for a receiver it cannot 
 go behind the judgment and execution, see Lent v. McQueen, 15 
 How. Pr. (N. Y.) 313, 
 
 207 Bloodgood V. Clark, 4 Paige, 474; Fitzburgh v. Everingham, 
 6 Paige, 29; Fuller v. Taylor, 6 N. J. Eq. (2 Halst. Ch.) 301. 
 
 208 Osborn v. Heyer, 2 Paige, 342; Bloodgood v. Clark, 4 Paige, 
 474; Bank of Monroe v. Schermerhorn, Clarke Ch. 214.
 
 189 EECEIVERS IN JUDGMENT CREDITORS' SUITS. § lOG 
 
 SO far in pursuit of his legal remedies as to obtain a 
 lien upon the property.^"'' The assertion frequently 
 made, that the creditor must have exhausted his legal 
 remedy before applying for a receiver, must, therefore, 
 be considered in the light of this distinction, and with 
 reference to the facts of the particular case.^^** 
 
 Fraudulent assignments by a judgment debtor often 
 afford a ground for the appointment of a receiver in 
 favor of judgment creditors.^^^ 
 
 The question whether a creditor's suit may be main- 
 tained and a receiver appointed against the estate of a 
 decedent in the process of administration is one that 
 has received different answers, varying with the view 
 
 209 See post, vol. II, chapter on "Creditors' Bills." 
 
 210 That a receiver should not be appointed when the plaintiff and 
 the sheriff know of the existence of property subject to execution, 
 iind that there was no impediment to the sale, see Congdon v. Lee, 
 y Edw. Ch. 304; or when no necessity existed, and no copy of the bill 
 was served upon the defendant: Hart v. Sims, 3 Edw. Ch. 266; or 
 when execution was not issued to the county of the defendant's resi- 
 dence: Minkler v. United States Sheep Co., 4 N. D. 507, 62 N. W. 
 594, 33 L. E. A. 546; V^illiams v. Hogeboom, 8 Paige, 469. As to 
 receiver of joint property of two defendants on a judgment rendered 
 against one, see Austin v, Figueira, 4 Paige, 56. As to the appoint- 
 ment on return of the execution unsatisfied made before the proper 
 return day, see Williams v. Hubbard, Walk. Ch. (Mich.) 28. 
 
 That a return of the execution unsatisfied is not necessary where 
 Ihe purpose of the suit is to set aside a fraudulent conveyance, see 
 Chautauqua County Bank v. White, 6 N. Y. 236, 57 Am. Dec. 442. 
 For an interpretation, in such cases, of the Iowa statute requiring the 
 applicant to show that "he has a probable right to or interest in the 
 property which is in controversy," see Clark v. Raymond, 86 Iowa, 
 661, 53 N. W. 354; Hirsch v. Israel, 106 Iowa, 498, 76 N. W. 811. 
 
 211 Connah v. Sedgwick, 1 Barb. 210 (insolvency of the assignee 
 a good cause for the appointment of a receiver) ; Shainwald v. Lewis, 
 7 Saw. 148, 6 Fed, 766 (an instructive case); Strong v, Goldman, 8 
 Biss. 552, Fed. Cas. No. 13,542; Nat. Bank of the Republic v. Hobbs, 
 118 Fed. 627. That a state of facts which would warrant a receiver 
 in aid of a judgment creditor whose debtor has made a fraudulent 
 conveyance, authorizes the appointment in behalf of a purchaser at 
 sheriff's sale under the judgment, see Mays v. Rose, Freem. Ch. 
 (Miss.) 718.
 
 § 107 EQUITABLE EEMEDIES. 190 
 
 held in regard to the jurisdiction of equity in matters 
 of administration.2^2 
 
 § 107. Same; Receiver of Debtor's Property Subject to 
 Prior Mortgage — With respect to a receiver of the rents 
 and profits of mortgaged premises belonging to the 
 judgment debtor, the plaintiff in a creditor's suit stands 
 in much the same position as a junior mortgagee. 
 Thus, such a receiver will not be appointed as against 
 a mortgagee in possession, if anything remains due 
 upon his mortgage.^^^ But a receiver of the rents and 
 profits of an equity of redemption fraudulently con- 
 veyed is proper, where the debtor and his grantee are 
 insolvent;-^* and such a receiver may be appointed 
 where the debtor's property is encumbered by numerous 
 mortgages and judgments whose priorities are to be as- 
 certained, and the real estate is insufficient to pay the 
 indebtedness.^^^ 
 
 A receiver may be appointed and an injunction 
 granted, in a proper case, to restrain the judgment 
 debtor from selling his goods, notwithstanding a mort- 
 gage thereon, not yet due, to another person. Such a 
 bill is sufficient if it alleges that executions upon valid 
 judgments have been levied upon goods in a store; 
 that a sale thereof to satisfy the judgments is sought to 
 be prevented by the holder of a prior mortgage thereon ; 
 
 212 See Pom. Eq. Jur., § 1154; Sylvester v. Eeed, 3 Edw. Ch. (N. 
 Y.) 296; McKaig v. James, 66 Md. 583, 8 Atl. 663; Davis v. Chapman, 
 83 Va. 67, 5 Am. St. Eep. 251, 1 S. E. 472; Warfield v. Owens, 4 Gill 
 (Md.), 364. 
 
 213 Quinn v. Brittain, 3 Edw. Ch, (N. Y.) 314; United States v. 
 Masich, 44 Fed. 10 (the court may issue an injunction in such a case 
 to protect the property and to apply the rents and profits to the 
 satisfaction of the mortgage) ; Furlong v. Edwards, 3 Md. 79. 
 
 214 Freeman v. Stewart, 119 Ala. 158, 24 South. 31. 
 
 215 Smith v. Butcher, 28 Gratt. 144; Grantham v. Lucas, 15 W. Va. 
 425.
 
 191 EECEIVEKS IN JUDGMENT CREDITORS' SUITS. § 108 
 
 that the property is more than sufficient to satisfy the 
 mortgage, and the debtor has no other property; that 
 since the execution of the mortgage, the goods remain- 
 ing in the possession of the mortgagor, some of them 
 had been sold and other goods substituted in their place, 
 and that if the debtor is allowed to retain the posses- 
 sion of the goods he would so dispose of them that the 
 complainant's claims would be wholly lost.-^^ 
 
 § 108. Same; Nature of the Property as Affecting Ap- 
 pointment — Receiver of Rents — The defendant's denial 
 that there is any property to protect is no reason for 
 refusing to appoint a receiver; indeed, the discovery 
 of assets is an important part of the receiver's func- 
 tion.217 
 
 Where a contest as to the title to real estate is in- 
 volved in the suit, and a receiver is sought of the rents 
 and profits pending the litigation, the principle which 
 has been mentioned in a previous section comes into 
 play, and the possession of the adverse holder will 
 rarely be disturbed.^^^ Thus, where the purpose of the 
 judgment creditor's action is to remove an alleged 
 fraudulent conveyance of real estate, he is not entitled, 
 as against the person claiming the property under the 
 conveyance, to a receiver of the rents and profits pen- 
 dente lite, unless upon a strong case of danger to the 
 property and inability to respond to a decree because 
 of insolvency.2^^ 
 
 216 Rose V. Bevan, 10 Md. 466, 69 Am. Dec. 170. 
 
 217 Bloodgood V. Clark, 4 Paige Ch. 574; Fuller v. Taylor, 6 N. J. 
 Eq. 301. 
 
 218 See ante, § 87. 
 
 219 Vause V. Woods, 46 Miss. 120; National Union Bank v. Riger, 
 38 App. Div. 123, 56 N. Y. Supp. 545; Ohlhauser v. Doud, 74 Wis. 
 400, 43 N. W. 169. In the last case, however, it was held that a re- 
 ceiver was properly appointed for the purpose of taking charge of 
 money substituted for a part of the land by virtue of condemnation 
 proceedings, although the money had been paid to a clerk of court.
 
 jl 100 EQUITABLE REMEDIES. li>li 
 
 Under peculiar circumstances a receiver of rents may 
 be the most effectual means of carrying into effect the 
 decree; as, where a building was erected by the judg- 
 ment debtor from his individual funds on land occupied 
 by him as a cestui que trust, a receiver was appointed 
 to apply the rents on the judgment, and the trustees 
 were enjoined from collecting them.^^** 
 
 By the English practice, a receiver of rents of a debtor's 
 real estate might be allowed in the first instance, if the 
 bill claimed satisfaction out of both the personal and 
 real estate of the debtor, and it appeared probable from 
 the defendant's answer that there was no personal es- 
 tate."i 
 
 § 109. Same; Miscellaneous Cases. — A receiver has been 
 appointed of a husband's interest in a mercantile busi- 
 ness, which he carried on ostensibly as agent for his 
 wife, in order to restrain the disposition of the prop- 
 erty, and to subject the property to the payment of a 
 judgment recovered against the husband.^^^ 
 
 A receiver has been appointed for the purpose of re- 
 covering rings and jewelry belonging to the judgment 
 debtor, since these are articles generally worn on the 
 person, and it might be out of the power of the sheriff 
 to levy on, or take possession of them.^-^ 
 
 It is said that a receiver will not be appointed to 
 t^ake possession of property which, though belonging 
 to the defendant, cannot for any reason be subjected 
 to the complainant's judgment; or for property which, 
 though nominally belonging to defendant, is beneficially 
 owned by third persons, or is encumbered beyond its 
 value. In such a case it can in no sense be said that 
 
 220 Johnson v. Woodruff, 8 N. J. Eq. 120. 
 
 221 Jones V. Pugh, 8 Ves. 71. 
 
 222 Penn v. Whiteheads, 12 Gratt. 74. 
 
 aet Frazier v. Barnum, 19 N. J. Eq. 316, 97 Am. Dec. 666.
 
 193 RECEIVERS IN SUPPLEMENTARY PROCEEDINGS. § 110 
 
 such property, or any interest of the defendant therein, 
 is subject to the payment of his debts, or can be reached 
 and applied thereto. ^^^ 
 
 A judgment creditor's bill to reach property or in- 
 terests unknown to the complainant and perhaps con- 
 cealed need not point out the specific property sought 
 to be reached.^^^ 
 
 § 110. Receivers in Proceedings Supplementary to Exe- 
 cution — Proceedings supplementary to execution being 
 designed to be a substitute for the equity procedure by 
 creditors' bill, receivers are appointed in such proceed- 
 ings very much as a matter of course, where it ap- 
 pears that the judgment creditor has, or probably has, 
 property that ought to be subjected to the satisfaction 
 of the judgment, after the return of the execution un- 
 satisfied.^-*^ Probability that the judgment debtor has, 
 
 224 McCullough V. Jones, 91 Ala. 186, 8 South. 696. 
 
 225 Button V. Thomas, 97 Mich. 93, 56 N. W. 228. 
 
 226 See Hervy v. Gibson, 10 Bosw. (N. Y.) 591; People v. Mead, 
 29 How. Pr. (N. Y.) 360; Coates v. Wilkes, 92 N. C. 376. The last 
 case contains such an excellent statement of the general purpose and 
 character of these proceedings, and of the receivership therein, that 
 I quote at some length: Coates v. Wilkes, 92 N. C. 376, 379-384, per 
 Merrimon, J.: "The proceedings supplementary to the execution in 
 an action, as allowed and provided for by the code, §§ 488-500, are 
 mainly, if not altogether, equitable in their nature. While, perhaps, 
 they go beyond in some respects, they are in large part a substitute 
 for, and take the place of the methods of granting relief in equity in 
 favor of a judgment creditor as against his judgment debtor, after 
 he had exhausted his remedy at law by the ordinary process of exe- 
 cution, as these prevailed before the present code system of procedure 
 was adopted: Hasty v. Simpson, 77 N. C. 69; Rand v. Rand, 78 N. C. 
 12; Hinsdale v. Sinclair, 83 N. C. 338; High on Rec, § 401. 
 
 "In the order of procedure, such supplementary proceedings are 
 incident to the action; they extend and enlarge its scope for the pur- 
 pose of reaching the judgment debtor's property of every kind sub- 
 ject to the payment of his debts, that cannot, for any cause, be suc- 
 eeesfully reached by the ordinary process of execution^ and subjecting 
 
 Equitable Remedies, Vol. 1—13
 
 § 110 EQUITABLE REMEDIES. 194 
 
 or has fraudulently conveyed, such property, is tlie 
 criterion; certainty or conclusiveness of proof is not 
 
 the same, or so much thereof as may be necessary, to the payment of 
 the judgment. 
 
 "In effectuating this purpose, it very frequently becomes necessary 
 to grant relief by injunction and the appointment of a receiver, as 
 in other cases. Indeed, a receiver is appointed almost as of course, 
 where it appears that the judgment debtor has, or probably has, prop- 
 erty that ought to be so subjected to the satisfaction of the judgment, 
 after the return of the execution unsatisfied. The receivership oper- 
 ates and reaches out in every direction as an equitable execution, and 
 it is the business of the receiver, under the superintendence of the 
 court, to make it effectual by all proper means. 
 
 "If it appear that the debtor has funds or property in his own 
 hands, the court may, by proper order, apply the same to the judg- 
 ment; but if the title to the property alleged or claimed to be that 
 of the debtor, be in dispute, or it be disposed of by the debtor, 
 in fraud of creditors, in such way as that it cannot be promptly 
 reached by execution or the order of the court, then a receiver may 
 be appointed at once. And it is not essential to such appointment 
 that it shall actually appear that the debtor has property; if it ap- 
 pear with reasonable certainty, or that it is probable that he has 
 property that ought to be subjected to the payment of the judg- 
 ment, a receiver may be appointed: Bloodgood v. Clark, 4 Paige, 574; 
 Osborne v. Hyer, 2 Paige, 342 
 
 "The judgment debtor cannot complain at the appointment of a 
 receiver. If he has property subject to the payment of his debt, 
 it ought to be applied to it; if he has not such property, this fact 
 ought to appear, with reasonable certainty, to the satisfaction of 
 the creditor. The receiver proceeds to do this, not at the peril of 
 the debtor, but at his own peril, as to costs, if he fails in his action. 
 The purpose of the law, in such proceedings, is to afford the largest 
 and most thorough means of scrutiny, legal and equitable, in their 
 character, in reaching such property as the debtor has, that ought 
 justly to go to the discharge of the debt his creditor has against 
 him 
 
 "It was not necessary, indeed, not proper, under the circumstances 
 of this case, for the court to find conclusively, whether or not the 
 defendant had certainly made a disposition of his property, fraudu- 
 lent as to his creditors. If there was evidence tending strongly to 
 show such a disposition of it, or that he was refusing, covertly or 
 otherwise, to apply his property to the judgment, this was sufii- 
 cient to warrant the appointment of a receiver, to the end that he 
 might take such steps, and, if need be, bring such actions as would 
 enable him to secure and recover any property of the defendant so
 
 195 EECEIVERS IN SUPPLEMENTABY PEOCEEDINGS. § 110 
 
 required in order to justify the appointment.^^'^ The 
 defendant's denial of the ownership of property, or his 
 debtor's denial of the existence of an alleged claim, is 
 not conclusive in this matter, but the contrary may be 
 made to appear by other witnesses, and a receiver may 
 be appointed on their testimony.^^* Further, if it ap- 
 pear that the judgment debtor has real estate that is 
 subject to sale under execution, and that there are no 
 obstacles to hinder such sale, a receiver will be refused, 
 in many states, in order that his statutory right of re- 
 demption may not be imperiled. ^^^ Subject to these 
 
 conveyed or withheld by him, to be applied to the judgment of the 
 plaintiff. To warrant the appointment of a receiver, it need not 
 appear, certainly or conclusively, that the defendant has property 
 that he ought to apply to the judgment — if there is evidence tending 
 in a reasonable degree to show that he probably has such property, 
 this is sufficient, or if it appears probable that he has made a 
 fraudulent conveyance of his property as to his creditors, this ia 
 sufficient." 
 
 227 Coate V. Wilkes, 92 N. C. 376, 384. "The discretion to ap- 
 point a receiver is legal, not arbitrary. The judge cannot lawfully 
 refuse to appoint a receiver if there be presented to him competent 
 evidence of assets"; Wilkinson v. Market, €5 N. J. L. 518, 47 All. 
 488. On the other hand, when it does not appear probable that the 
 judgment debtor has any property, rights or credits as to which a 
 receiver is required, the appointment will be refused: Eodman v. 
 Harvey, 102 N. C. 1, 8 S. E. 888; Adler v. Turnbull, 57 N. J. L, 62, 
 30 Atl. 319; Colton v. Bigelow, 41 N. J. L. 266. "Mere suspicion 
 or surmise falls far short of what is required to justify the exercise 
 of a power which should be sparingly used": Flint v. Zimmer- 
 man, 70 Minn. 346, 73 N. W. 175. 
 
 228 Seyfert v. Edison, 47 N. J. L. 428, 1 Atl. 502; Colton v. 
 Bigelow, 47 N. J. L. 428, 1 Atl. 502; Knight v. Nash, 22 Minn. 452. 
 
 229 Bunn v. Daly, 24 Hun, 526; Second Ward Bank v. Upmann, 
 12 Wis. 499; but see Bailey v. Lane, 15 Abb. Pr. 373, note; and Bill- 
 ing v. Foster, 21 S. C. 334. In the last case it was held that although 
 the examination disclosed property subject to execution in the debt- 
 or's hands, sufficient to satisfy the judgment, a receiver might 
 nevertheless be appointed; that the rule prohibiting the appointment 
 in such cases, in creditor's bills, depended on the fact that equity 
 and law were administered by different tribunals; and as the pow- 
 ers of the court of equity were only invoked in aid of the law
 
 § 111 EQUITABLE EEAIEDirS. 196 
 
 restrictions the appointment is usually spoken of as a 
 matter of sound legal discretion, "^*^ a power to be exer- 
 cised only with caution and in the absence of other ade- 
 quate remedies available to the creditor.^^^ 
 
 § 111. (5) In Suits for Specific Performance, or to En- 
 force Vendor's Lien. — A receiver may be appointed in a 
 suit by a vendor to enforce the specific performance of 
 a contract for the sale of land against a vendee who is 
 
 court, such powers were not exercised where such aid was not neces- 
 sary. 
 
 230 See Wilkinson v. Markert, 65 N. J. L. 518, 47 Atl. 488; Flint 
 T. Webb, 25 Minn. 263; Bean v. Heron, 65 Minn. 64, 67 N. W. 805; 
 Flint V. Zimmerman, 70 Minn. 346, 73 N. W. 175; Poppitz v. Eo^'ues, 
 76 Minn. 109, 78 N. W. 964. "That a receiver may, in the. discre- 
 tion of the court, be appointed immediately upon granting the order 
 for the examination, there can be no doubt; and such, it seems, is 
 the safer and better practice, inasmuch as it effectually secures to 
 the prosecuting creditor that priority upon his debtor's property 
 which his vigilance justly entitles him to"; citing Hervy v. Gibson, 
 10 Bosw. (N. Y.) 591, and People v. Mead, 29 How. Pr. (N. Y.) 360. 
 
 231 "The mere fact that upon a debtor's examination property 
 is disclosed which may be subjected to the satisfaction of the cred- 
 itor's judgment does not necessarily entitle the latter, as a matter 
 of right, to have a receiver appointed It is against the gen- 
 eral policy of the law to permit a creditor to resort to it [receiver- 
 «hip] where he has other adequate remedy": Poppitz v. Eogncs, 
 76 Minn. 109, 78 N. W. 964. "Equitable principles, which are al- 
 ways very flexible, should be taken into account in determining 
 whether a receiver should be appointed. A receivership, the costs 
 of which have to be paid, if any property is reached, out of the 
 debtor's estate, is a very drastic remedy, and is subject to great 
 abuses. At the present day it unfortunately is often more bene- 
 ficial to the receiver and his attorneys than to the creditor. It 
 should, therefore, be resorted to with great caution, and sparingly. 
 When it clearly appears that a creditor holds mortgage security am- 
 ple to satisfy his whole debt, his application for a receiver of his 
 debtor's property ought, ordinarily, to be denied. In such a case 
 it would be an abuse of judicial discretion to appoint one, unless, 
 possibly, there were some exceptional circumstances." Such circum- 
 stances were held to be present, and the appointment was held not 
 to be an abuse of discretion, although the judgment creditor had not 
 exhausted his mortgage securitj: Bean v. Heron, 65 Minn. 64, 67 
 N. W. 805.
 
 i97 EECEIVERS IN SPECIFIC PERFORMANCE, ETC. S HI 
 
 in possession, under the same circumstances as in a 
 suit by a mortgagee for foreclosure of his mortgage; 
 viz., when the land is a doubtful or inadequate security, 
 and the vendee is insolvent, or committing waste ;^' 
 and the same rule generally holds true in suits by a 
 vendor who has retained the legal title to foreclose his 
 (so-called) "vendor's lien" by a sale of the property for 
 the unpaid purchase-money.^^^ In some states, how- 
 ever, a stronger showing is required, and waste, threat- 
 ened or committed by the vendee, or bad husbandry, 
 impairing the value of the vendor's security, is essential 
 as a foundation for the relief.^^^ In England, a re- 
 
 232 Pom. Eq. Jur., § 1334; Phillips v. Eiland, 52 Miss. 721; and 
 see Tufts v. Little, 56 Ga. 139; Gunley v. Thompson, 56 Ga. 316; 
 Chappell V. Boyd, 56 Ga. 578; Hall v. Jenkinson, 2 Ves. & B. 125 (ven- 
 dee insolvent and attempting to convey his estate for the benefit 
 of creditors); Boehm v. Wood, 2 Jacob & W. 236 (receiver pending % 
 reference as to the validity of the plaintiff's title). 
 
 233 See Smith v, Kelley, 31 Hun, 387; Belding v. Meloche, 118 
 Mich. 223, 71 N. W. 592 (relief awarded to a vendor under circum- 
 stances where it would be refused to a mortgagee) ; McCaslin t. 
 State, 44 Ind. 151, 174 (insolvency of vendee, and waste by cutting 
 valuable timber) ; Cotulla v. American Freehold L. M. Co. (Tex. 
 Civ. App.), 86 S. W. 339 (by statute); Hughes v. Hatchett, 55 Ala. 
 631 (relief refused, where insolvency of vendee not shown, and 
 amount of indebtedness disputed). In Belding v. Meloche, supra, 
 it wag held that the decision in Wagar v. Stone, 36 Mich. 364, ia 
 which a receiver was refused in a suit by a mortgagee, on account 
 of the statute whereby the mortgagor is entitled to possession until 
 after foreclosure, did not apply to the case of foreclosure of a land 
 contract, wherein it was agreed that in case of default the vendor 
 should be entitled to possession. 
 
 234 See Columbia Finance etc. Co. v. Morgan, 19 Ky. Law Rep. 
 1761, 44 S. W. 389, 45 S. W. 65; Collins v. Eichart, 14 Bush (Ky.), 
 621. In Georgia, a bill alleging the insolvency of the vendee, and 
 the deterioration in value of the land, but not showing that the 
 vendee is less able to pay when the debt matured than when it wan 
 incurred, or that the deterioration is due to the vendee's waste or 
 mismanagement, makes no case for a receiver of the rents and profits 
 of the premises: Turnlin v. Vanhorn, 77 Ga. 315, 3 S. E. 264. Am 
 to receiver in foreclosure of the vendor's lien in Tennessee, see Mor- 
 ford V. Hamner, 3 Baxt. 391; Darusiuont v. Patton, 4 Lea, 597.
 
 I 118 EQUITABLE REMEDIES. 198 
 
 ceiver may be allowed in a suit to enforce a vendor's 
 lien for land sold to an insolvent railway company, 
 after, but not before, a final decree.^^^ A receiver to 
 secure the property has occasionally been appointed in 
 a suit for specific performance instituted by the ven- 
 
 jjgg 236 
 
 § 112. (6) In Behalf of TTnsecnred Creditors Before 
 Judgment. — It is the almost universal rule that a cred- 
 itor's bill, whether to set aside a fraudulent transfer or 
 to reach equitable assets, will not lie in behalf of mere 
 general creditors who have not prosecuted their claims 
 to judgment, nor in any other manner acquired a lien 
 upon the debtor's property. The slowness and inade- 
 quacy of the legal remedies open to such creditors are 
 not considerations that can move a court of equity, in 
 the absence of statutory authority, to intervene in their 
 behalf with the instrumentality of a receiver, to pre- 
 serve the debtor's property.^^^ An apparent exception 
 
 235 Munns v. Isle of Wight E. Co., L. R. 5 Ch. 414; Latimer v. 
 Aylesbury & B. Ry. Co., L. R. 9 Ch. D. 385. 
 
 236 Where the vendor has fraudulently repossessed himself of the 
 property: Dawson v. Yates, 1 Beav. 301; in an action for the specific 
 performance of a contract to assign a lease giving the right to sink 
 or bore for oil, receiver to operate oil-wells, pending the action, is 
 authorized, where the defendant, a non-resident without property in 
 the state, except the machinery on the land, is operating the wells 
 and selling the product: Galloway v. Campbell, 142 Ind. 324, 41 
 N. E. 597. See, also, Mead v. Burk, 156 Ind. 577, 60 N. E. 338. But 
 in a suit to enforce an oral contract between father and son, whereby 
 the son was to have the father's land on the death of the latter, 
 in consideration of his agreement to support the father, it was im- 
 proper to appoint a receiver of the land on the death of the son 
 before full performance on his part: Walters v. Walters, 132 111. 467, 
 23 N. E, 1120. 
 
 237 Wiggins v. Armstrong, 2 Johns. Ch. 144; Uhl v. Dillon, 10 Md. 
 500, 69 Am. Dec. 172; Oberholser v. Greenfield, 47 Ga. 530; Kehler 
 T. G. W. Jack Mfg. Co., 55 Ga. 639; Johnson v. Farnum, 56 Ga. 144; 
 Mayer v. Wood, 56 Ga. 427, 429; Stillwell ▼. Savannah Grocery Co.,
 
 199 RECEIVEES FOR UNSECURED CREDITORS. § 112 
 
 to the rule has been established by a series of cases in 
 Georgia, where an insolvent debtor, with fraudulent 
 intent, has bought goods on credit from the plaintiff, 
 and afterwards has made a fraudulent transfer of his 
 
 88 Ga. 100, 13 S. E. 963; Turnipseed v. Kentucky Wagon Co., 97 Ga. 
 258, 23 S. E, 84; Blondheim v. Moore, 11 Md. 365; Hubbard v. Hub- 
 bard, 14 Md. 356; Carter v. Hightower, 79 Tex. 135, 15 S. W. 223; 
 Cahn V. Johnson, 12 Tex. Civ. App. 304, 33 S. W. 1000; Waples- 
 Platter Co. v. Mitchell, 12 Tex. Civ. App. 90, 35 S. W. 200. Uhl v. 
 Dillon, supra, was a bill by general creditors for injunction and 
 receiver, alleging that the defendant was indebted to the complain- 
 ants, that he was disposing of his property, collecting money due 
 him, and secreting his money and property, with the intent, as com- 
 plainants were informed and believed, to abscond and defraud 
 them. The court says, in part, by Bartol, J.: "Whatever may be 
 the supposed defects of the existing laws of the state, in leaving to 
 the debtor the absolute power of disposing of his property, and 
 leaving the creditor to the slow and very inadequate legal remedies 
 now provided, it is solely in the power of the legislature to correct 
 them. It is not within the province of the chancery courts to stretch 
 their power beyond the limits of the authorities of the law, for the 
 purpose of remedying such defects. Such a course would be pro- 
 ductive of great mischief, and make the rights of the citizen depend 
 upon the vague and uncertain discretion of the judges, instead of 
 the safe and well-defined rules of law." Possible exceptions to the 
 rule may be found in Haggarty v. Pittman, 1 Paige, 298, 19 Am. 
 Dec. 434 (fraudulent assignment to an insolvent assignee) ; Rosen- 
 berg V. Moore, 11 Md. 376 (objection that plaintiff had no judgment 
 not urged). 
 
 In Aid of Attachment.— A receiver is not warranted in an action 
 on a simple money demand, in which action property has been at- 
 tached. The fact that a writ of attachment was issued does not 
 change the nature of the action to one for the relief of "subjecting 
 a fund to the plaintiff's claim," within the meaning of the statute 
 authorizing a receiver in an action "by a creditor to subject any 
 property or fund to his claim"; nor do writs of attachment issued 
 by two creditors on simple money demands convert the action into 
 one "between partners or others jointly owning or interested in any 
 property or fund," under another clause of the same statute: State 
 V. Eighth Judicial Dist, Ct., 14 Mont. 577, 37 Pac. 969. But it has 
 been held that the court possesses the power, independently of stat- 
 ute, to appoint a receiver to take charge of property abandoned by 
 a garnishee: Northfield Knife Co. v. Shapleigh, 24 Neb. 635 8 Am. 
 St. Rep. 224, 39 S. W. 788.
 
 §112 EQUITABLE REMEDIES. SM 
 
 goods to a third person, who is himself insolvent; but 
 the defrauded creditor's right to the equitable relief of 
 a receiver is strictly limited to these circumstances, and 
 is based on the ground that the plaintiff, having a right 
 to rescind the fraudulent sale, had never, in equity, 
 parted with the title to the goods. ^^^ The right of a 
 creditor without judgment, depending on the general 
 jurisdiction of equity in the administration of the es- 
 tates of decedents, to come into equity to subject to his 
 demand property fraudulently conveyed by the debtor 
 while in life, there being a deficiency of legal assets, 
 is recognized in some states ;^^' and a receiver may be 
 necessary, in such a suit.^^" A further exception has 
 been made in New York, in the case of the creditor, 
 without judgment, of a partnership, suing on behalf of 
 himself and for the benefit of other creditors, where 
 the indebtedness is not disputed, and the firm and its 
 members are insolvent, and have attempted to make a 
 fraudulent assignment of their property. ^^^ Statutes 
 
 238 Cohen v. Meyers, 42 Ga. 46; Johnson v. Farnum, 56 Ga. 144 
 (relief denied when plaintiff does not claim title to the goods, or 
 right to rescind the sale) ; Mayer v. Wood, 56 Ga. 427, 429 (same) ; 
 Wachtel v. Wilde, 58 Ga. 50; Cohen & Co. v. Morris & Co., 70 Ga. 
 313; Albany etc. Steel Co. v. Southern etc. Works, 76 Ga. 135, 2 Am. 
 St. Eep. 26; Wolfe v. Claflin, 81 Ga. 64, 6 S. E. 599; Martin v, Bur- 
 gyn, 88 Ga. 78, 13 S. E. 958. But the appointment of a receiver is 
 erroneous where it appears that the person to whom the alleged 
 fraudulent transfer was made is solvent and able to respond to a 
 judgment in favor of the plaintiff: Turnipseed v. Kentucky Wagon 
 Co., 97 Ga. 258, 23 S. E. 84; Stillwell v. Savannah Grocery Co., 88 
 Ga. 100, 13 S. E. 963; and where, under the order of the judge, the 
 plaintiffs had pointed out and separated the goods in question, there 
 should be no receiver appointed except for the purpose of taking 
 charge of the goods so identified; Atlantic Brew. etc. Co. v. Bluthen- 
 thal, 101 Ga. 541, 28 S. E. 1003. 
 
 239 See Pom. Eq. Jur., § 1154, and note. 
 
 240 See Werborn's Admr. v. Kahn, 93 Ala. 201, 9 South. 729. 
 
 241 Mott V. Dunn, 10 How. Pr. 225; La Cliaire v. Lord, 10 How. 
 Pr. 461; Levy v. Ely, 15 How. Pr. 395; Jackson v. Sheldon, 9 Abb. 
 Pr. 127; and see Cohen & Co. v. Morris & Co., 70 Ga. 313. Jackson
 
 201 EECEIVEES FOR UNSECURED CREDITORS. § 112 
 
 in several of the states now provide for creditor's bills 
 by general, unsecured creditors in certain exigencies, 
 and the right to receivers in such suits has received 
 much consideration in at least two of these states. ^^^ 
 
 V. Sheldon was a case of limited partnership, and relief was based 
 upon the neglect of the partners to assign to a trustee for the benefit 
 of all the partnership creditors. 
 
 242 Alabama. — Complainants, on filing their bill and service of 
 process, acquire an inchoate lien on the property fraudulently con- 
 veyed, and are entitled to a receiver upon showing three things; 
 namely, a reasonable probability of success upon their part in finally 
 subjecting the property to the satisfaction of their lien; a necessity 
 of resorting to the property to make their debts; and a danger 
 that the property will be wasted, disposed of, or gotten out of the 
 reach of the court so that the lien cannot be effectuated: Heard 
 V. Murray, 93 Ala. 127, 9 South. 514; Weis v. Goetter, 72 Ala. 259. 
 A pending suit by creditors for the benefit of all who may join 
 is no bar to a subsequent suit by a simple contract creditor aver- 
 ring the collusive action of parties to the former suit and asking 
 the removal of a receiver appointed thereunder, and that the cus- 
 tody already assumed by the court may be extended to his own case: 
 Alabama etc. Steel Co.' v. McKeever, 112 Ala. 134, 20 South. 84. 
 The creditor's remedy by attachment is usually adequate; "it affords 
 iis ample redress and protection, in ordinary cases, as a receiver- 
 ship, fully securing the forthcoming of the property to answer any 
 judgment obtained in the attachment suit, if found liable to the 
 attachment": Pearce v. Jennings, 94 Ala. 524, 10 South. 511; hence, 
 when an attachment has been levied on personalty, a receiver will 
 not be appointed in aid of the suit, unless special circumstances ara 
 shown rendering the attachment inadequate and inefficacious: Id.; 
 and a debtor's threatened removal of his property from the state, 
 while authorizing an attachment by the creditor, does not entitle 
 the latter to the aid of a court of equity, or the appointment of a 
 receiver: Smith-Dimmick Lumber Co. v. Teague, 119 Ala. 385, 24 
 South. 4. When property of the debtor has been attached, and the 
 statutory claim interposed, it is in the custody of the law, and should 
 not be taken away from such custody and placed in the hands of a 
 receiver, at the suit of another creditor: Dollins v. Lindsay, 89 Ala. 
 217, 7 South, 234; Williams v. Dismukes, 106 Ala. 402, 17 South. 620; 
 but a receiver may be had of the surplus of the goods over the 
 amount of the prior equitable attachment creditor's claim: Sackhoif 
 V. Vandegrift, 98 Ala. 192, 13 South. 495. 
 
 Georgia.— " Insolvent Trader's Law," Stats. 1881, p. 124; Code, 
 § 3297; § 3149, etc. To warrant a receiver at the suit of a general
 
 i 113 EQUITABLE REMEDIES. 202 
 
 § 113. (7) Receiver in Suits for Rescission of Contracts 
 for Sale of Land — A receiver may be appointed, under 
 special circumstances, in a suit by a vendee of land for 
 
 weditor, it must appear that the debtor is insolvent: Collins v. My- 
 ers, 68 Ga. 530; and that his effects will not be exhausted by other 
 ereditors having liens, before the simple contract creditors will be 
 reached in the order of distribution: Id.; Barnwell v. Wofford, 67 
 Ga. 50. See, further, as to the right to a receiver under these stat- 
 utes, Fechheimer v. Baum, 37 Fed. 167, 2 L. E. A. 153; Nussbaum 
 ▼. Price, 80 Ga. 205, 5 S. E. 291; Pendleton v. Johnson, 85 Ga. 840, 
 11 S. E. 144; Sullivan v. McDonald, 86 Ga. 78, 12 S. E. 215; Stillwell 
 V. Savannah Grocery Co., 88 Ga. 100, 13 S. E. 963; Atlanta Brewing 
 Co. V. Bluthental, 101 Ga. 541, 28 S. E. 1003. Eeceiver in aid of 
 creditors having laborers' liens, before judgment, where the plain- 
 tiffs ar« numerous, the defendants insolvent, and there is "manifest 
 danger of loss" (Code, § 3149) by removal of the property from the 
 state: Orton v. Madden, 75 Ga. 83. 
 
 Michigan. — 3 How. Ann. Stats., § 8749 (o), providing that a person 
 kaving a preferred labor claim against an insolvent person or cor- 
 poration may proceed in chancery for appointment of a receiver, if 
 an assignment for the benefit of creditors has been made. A chattel 
 mortgage is not such an assignment, within the meaning of the stat- 
 ute: Wineman v. Fisher Electrical Works, 118 Mich. 636, 77 N. W. 
 245. An order appointing a receiver of assets of an insolvent debtor, 
 Bpon a bill by holders of preferred claims, and requiring an attach- 
 ment creditor to surrender to him property held by virtue of his 
 writ, is improvidently made: Lawton v. Richardson, 115 Mich. 12, 
 72 N. W. 988. See, also, Hall v. Donovan, 111 Mich. 395, 69 N. W. 
 643. 
 
 Minnesota.— Laws 1881, chapter 148, Amend, chap. 30, Laws 1889. 
 As to receivers under the insolvency act of this state, see Hyde v. 
 Weitzner, 45 Minn. 35, 47 N. W. 311 (assignee for benefit of cred- 
 itors treated as an officer of the court, and receiver refused); Citizens' 
 Nat. Bank v. Minge, 49 Minn. 454, 52 N. W. 44 (creditor's claim need 
 Hot be due, to qualify him to institute proceedings for a receiver) ; 
 Rollins V. Rice, 60 Minn. 358, 62 N. W. 325. 
 
 Rhode Island.— Pub. Laws, c. 723, § 2. Receiver on petition of 
 •reditors of insolvent who has made an assignment giving illegal 
 preferences: See Bank of America, Petitioner, 13 R. I. 176. 
 
 South Carolina. — Statute authorizing creditors without judgment 
 io attack a voluntary assignment giving preference to creditors. 
 It is error to appoint a receiver when it is not alleged that there 
 was any danger of loss or injury to the property during litigation: 
 Felz«r T. Hughes, 27 S. C. 408, 3 S. E. 781.
 
 aOt BECEIVERS; ANNUITIES; EEMAINDERS. |§ 114, 115 
 
 rescission of the contract of purcliase.^^^ It has been 
 held improper to appoint a receiver pending an action 
 to rescind the contract of sale at the instance of the 
 vendor, on the mere ground of the insolvency of the 
 vendee in possession.^^^ 
 
 § 114. (8) Receivers in Suits to Enforce Payment of An- 
 nuities. — Receivers have sometimes been appointed in 
 suits to enforce payment of the arrears of annuities 
 charged upon land f'^^ but in England this relief is given 
 only when the payment cannot be enforced by dis- 
 tress.2^® 
 
 § 115. (9) Receivers in Suits for the Protection of Re- 
 mainder-men. — If a life tenant neglects or refuses to 
 
 Washington.— Code, § 302, allows a receiver at any time for at- 
 tached property "according to tlie nature of the property and the 
 exigencies of the case." A receiver is proper when the property 
 "was of such a character that its value would be diminished by 
 mere lapse of time, and that an early sale thereof was desirable": 
 State V. Superior Court of Whatcom County, 14 Wash. 324, 44 Pac. 
 542. 
 
 243 Pom. Eq. Jur., § 1334. The court, in such a suit, has power to 
 appoint a receiver to preserve and retain the purchase money until 
 the rights of the parties are adjudicated: Loaiza v. Superior Court, 
 85 Cal. 11, 20 Am. St. Eep. 197, 9 L. E. A. 376, 24 Pac. 707. A 
 receiver was appointed in an action by the purchasers of a colliery 
 to set aside the sale for fraudulent representations, the ownership 
 being involved in great uncertainty, and it being of great impor- 
 tance that the colliery should be worked, and so worked as to leave 
 as little doubt as possible whether it was properly or improperly 
 worked: Gibbs v. David, L. E. 20 Eq. 373. 
 
 244 Jordan v. Beal, 51 Ga. 602. But in England, a receiver has 
 been appointed on the application of the vendor of a leasehold, to 
 preserve the lease from forfeiture for nonpayment of rent by the 
 vendee: Cook v. Andrews, [1897] 1 Ch. 266. 
 
 245 Sollory v. Leaver, L, E. 9 Eq. 22; Probasco v. Probasco, 30 
 N. J. Eq. 108; Abernathy v. Orton, 42 Or. 437, 95 Am. St. Eep. 774, 
 71 Pac. 327; Pom. Eq. Jur., § 1334. Eeceiver to enforce agreement 
 to support grantor from the proceeds of propery conveyed: See, ante, 
 i 74, note 40; Keister v. Cubine, 101 Va. 768, 45 S. E. 285. 
 
 246 Sollory v. Leaver, supra; Buxton v. Monkhouse, Coop. 41.
 
 5 IIG EQUITABLE REMEDIES. 204 
 
 keep down the taxes or to make such repairs as he is 
 legally bound to make, a receiver may be appointed, at 
 the instance of the remainder-man, to collect rents suf- 
 ficient to discharge these liabilities of the life tenant's 
 estate.^^'^ So, when a life tenant of leasehold premises 
 is allowed by the trustees of the premises to receive the 
 rents, and the houses are not kept in a proper state of 
 repair to prevent a forfeiture according to the cove- 
 nants of the lease, a receiver may be appointed of the 
 rents, for the purpose of applying them to the proper 
 repair of the houses. ^^^ 
 
 § 116. (10) Appointment of Receivers of Corporations — 
 The Inherent Jurisdiction of Equity — In General. — The in- 
 herent jurisdiction of a court of equity to appoint re- 
 ceivers of corporations, in proper cases, independently 
 of statutory authorization, has been frequently recog- 
 nized.^^^ The cases in which the power is most fre- 
 quently invoked are as follows :^^^ 1. In suits by stock- 
 
 247 Cairns v. Chabert, 3 Edw. Ch. 312; Sage v. Gloversville, 43 App. 
 Div. 245, 60 N. Y. Supp. 791; Goodman v. Malcom, 5 Kan. App. 285, 
 48 Pac. 439; St. Paul Trust Co. v. Mintzer, 65 Minn. 124, 60 Am. St. 
 Kep. 444, 67 N. W. 657, 32 L. E. A. 756 (appointed at the instance 
 of executor authorized by the express terms of the will to collect 
 rents and pay taxes); Murch v. Smith Mfg. Co., 47 N. J. Eq. IQ.*!, 
 20 Atl. 213. But in Michigan such appointment is held to be im- 
 proper under the method of enforcing the payment of unpaid taxes 
 upon real estate and foreclosing liens in that state: Jenks v. Horton, 
 90 Mich. 13, 55 N. W. 372. 
 
 248 In re Fowler, L. E. 16 Ch. D. 723. 
 
 249 See Thompson v. Greeley, 107 Mo. 577, criticising the state- 
 ments on this subject of certain test-books on receivers; Ford v. 
 Kansas City etc. Ey. Co., 52 Mo. App. 439; Matter of Louisiana Sav- 
 ings Bank, 35 La. Ann. 196, criticising Baker v. Louisiana etc. R. 
 E. Co., 34 La. Ann. 754, where a sweeping denial of the existence 
 of the jurisdiction, except in cases of extreme necessity, was made. 
 
 250 The supreme court of Louisiana says of the practice in that 
 Btate that it "had not proceeded further, and should not, without 
 legislative enactment, proceed further, than in making such appoint- 
 ment in cases where the parties litigant agree that it be done, or
 
 205 APPOINTMENT OF RECEIVERS OF CORPORATIONS. § 116 
 
 holders seeking a remedy for breaches of their fiduciary 
 duty by the directors or ofiicers of the corporation; 2. 
 After dissolution, where no means are provided by 
 statute or otherwise for winding up the affairs of the 
 corporation; 3. When the corporation has no properly 
 constituted governing body, or there are such dissen- 
 sions in its governing body as to make it impossible 
 for the corporation to carry on its business with advan- 
 tage; 4. In suits by judgment creditors of the corpora- 
 tion; 5. In suits for the foreclosure of mortgages or 
 other liens upon the corporate property .^^^ 
 
 Insolvency of the corporation, alone, does not war- 
 rant the appointment of a receiver,^^^ unless this has 
 been made a ground by statute. 
 
 The object of the appointment of a receiver of a cor- 
 poration is the preservation of its property for the 
 benefit of persons interested, and not the confiscation 
 of the property.^^^ 
 
 when it is necessary to the execution of a judgment of the court, 
 or in a case where, the property in controversy being under seizure 
 by a writ of the court and in custody, it is necessary as a conserva- 
 tory process to care for or administer the same, or where the prop- 
 erty of a corporation is abandoned, or there are no persons author- 
 ized to take charge of and conduct its affairs, or where it is done 
 in aid of proceedings pending before the court for the liquidation of 
 the affairs of a corporation, and rendered necessary for the preserva- 
 tion of the interests of all concerned": In ro Moss Cigar Co., 50 La. 
 Ann. 789, 23 South. 544. 
 
 251 That it is improper to appoint a receiver merely for the pur- 
 pose of representing the corporation in litigation, see Hutchinson v. 
 American Palace-Car Co., 104 Fed. 182. 
 
 25 2 McGeorge v. Big Stone Gap Imp. Co., 57 Fed. 262; Lawrence 
 Iron Works Co. v. Rockbridge Co., 47 Fed. 755; Murray v. Superior 
 Court, 129 Cal. 628, 62 Pac. 191. See, also, Falmouth Bank v. Cape 
 Cod Ship Canal Co., 166 Mass. 550, 44 N. E. 617; Pond v. Framingham 
 & Lowell R. Co., 130 Mass. 194. 
 
 253 See Havemeyer v. Superior Court, 84 Cal. 327, 18 Am. St. Rep. 
 192, 24 Pac. 121. This principle seems clearly to have been disre- 
 garded in an Indiana case (Columbia Athletic Club v. State, 143 
 Ind. 98, 52 Am. St. Rep. 407, 40 N. E, 914, 28 L. E. A. 727), where a
 
 § 117 EQUITABLE EEMEDIES. 206 
 
 § 117. Receivers of Corporations Cautiously Appointed. — 
 The reasons for the oft-asserted reluctance of the court 
 to assume the responsibilities involved in the appoint- 
 ment of receivers of corporations are well stated in the 
 following extracts: "As a rule of equity practice, the 
 courts are very reluctant to appoint receivers [of the 
 property of corporations], upon the idea that it is a 
 practical displacement of the board of directors. It 
 is an assumption of the function of the directors. It 
 displaces the board of managers placed there by the 
 stockholders, who sustain the relation of trustees for 
 the stockholders, trustees for the corporation, and trus- 
 tees for its creditors; and before the court will take 
 charge of the corporation and thus displace its chosen 
 directors and managers, it ought to have the clearest 
 evidence of the absolute necessity for such extraor<li- 
 nary action for the protection of the creditors, stock- 
 holders, and all parties concerned."-^* "It is no slight 
 matter for a court of chancery to lay its hand upon 
 large business enterprises, take them out of the con- 
 trol of capacity and experience, and charge them with 
 expenses and commissions. It should only be done 
 when the court can point to the specific allegation or 
 
 receiver was appointed to render more effectual an injunction re- 
 straining the continuance of a nuisance — viz., giving exhibitions of 
 prize-fighting — ^by a corporation. The dissenting opinion of Hack- 
 ney, J., points out that while the injunction was properly issued, 
 the appointment of a receiver for the purpose merely of staying 
 the commission of crime is entirely without precedent; and that the 
 object sought might have been reached by enlarging the scope of the 
 injunction. However, the fact that the relief was based, in part, 
 on the broad terms of the Indiana statute (Eev. Stats. 1894, § 1236; 
 Kev. Stats. 1881, § 1222) authorizing a receivership when "in 
 the discretion of the court, it may be necessary to secure ample justice 
 to the parties," probably destroys whatever general value as a 
 precedent this case might possess. 
 
 254 Consolidated Tank Line Co. v. Consolidated Varnish Co., 43 Fed. 
 204.
 
 207 APPOINTMENT OF RECEIVERS OF CORPORATIONS. S 117 
 
 allegations, sustained by credible evidence, that will 
 justify such action."^^^ 
 
 The relief cannot be granted on the strength of mere 
 general averments of fraud, when that is the ground 
 
 255 Young V. Eutan, 69 111, App. 513. "Courts proceed with ex- 
 treme caution in the appointment of receivers to take the propertj 
 of a corporation out of the control of its officers, and are much more 
 readily moved to, by proper orders, restrain the doing of improper 
 acts, and compel the recognition of undoubted rights": Original 
 Vienna Bakery etc. Co. v. Heissler, 50 111. App. 406. Before a court 
 "will take the property and business of a liquidating bank from the 
 control of its directors into its own hands, on the application of a 
 stockholder, it must appear that the danger of loss or injury to tlie 
 rights of the plaintiff is clearly proved, and the necessity and right 
 of appointment of a receiver free from reasonable doubt": Watkins 
 V, National Bank, 51 Kan. 254, 32 Pac. 914. "The power is a dis- 
 cretionary one, to be exercised with great circumspection, and only 
 in cases where there is fraud or spoliation, or imminent danger of 
 the loss of the property, if the immediate possession should not be 
 taken by the court; and these facts must be clearly proved. But, 
 where these conditions have been fully met, courts do not hesitate to 
 appoint receivers over the property of corporations, for the benefit 
 of all concerned during the controversy": Davis v. United States 
 Electric etc. Co., 77 Md, 35, 25 Atl. 982; Steinberger v. Independent 
 Sav. Assn., 84 Md. 625, 36 Atl. 439. See, also, Thompson v. Greeley, 
 107 Mo. 577, 17 S. W. 962; People's Investment Co. v. Crawford (Tex. 
 Civ. App.), 45 S, W. 738. "Cessation of business, alone, does not 
 make a fit case for the appointment of a receiver of the remaining 
 assets of the company; it must be shown, in addition, that the offi- 
 cers have been guilty of mismanagement of its affairs, or that there 
 exists some need to preserve the property, through a receivership, for 
 the benefit of the creditors and stockholders": Clark v. National Lin- 
 seed Oil Co., 105 Fed. 787, 792, 45 C. C. A. 53. "Undoubtedly, there 
 are cases in which a court of equity may, through its receiver, take 
 possession and control of the business of corporations and individuals. 
 But it is a jurisdiction to be sparingly exercised. None of the pre- 
 rogatives of a court of equity have been pushed to such extreme 
 limits as this, and there is none so likely to lead to abuses. It is 
 not the province of a court of equity to take possession of the prop- 
 erty, and conduct the business of corporations or individuals, except 
 where the exercise of such extraordinary jurisdiction is indispensably 
 necessary to save or protect some clear right of a suitor, which would 
 otherwise be lost or greatly endangered, and which cannot oe saved 
 or protected by any other action or mode of proceeding": Overton v. 
 Memphis etc. E. R. Co., 10 Fed. 866, 3 McCrary, 436.
 
 5 118 EQUITABLE REMEDIES. 208 
 
 on which the relief is asked. The conduct and facts 
 from which the conclusion is deduced must be averred, 
 EK) that issue can be formed on the averments.^^® 
 
 § 118. A Receiver is an Ancillary Remedy; not Appointed 
 on the Petition of the Corporation. — Unless authorized by 
 statute, there is no such thing as an action brought 
 distinctively for the mere appointment of a receiver; 
 to justify the appointment it is essential that some 
 proper final relief in equity be asked for in the bill 
 which will justify the court in proceeding with the 
 case.2^'^ It follows that it is error for the court to 
 appoint a receiver of a corporation on its own peti- 
 tion, alleging its insolvency ;2^^ and it has been held 
 that such a proceeding is void for want of jurisdic- 
 tion.2=9 
 
 25 6 Fort Payne Furnace Co. t. Fort Payne Coal etc. Co., 96 Ala. 
 472, 38 Am. St. Eep. 109, 11 South. 439. 
 
 257 Hutchinson v. American Palace Car Co., 104 Fed. 182; Mur- 
 ray V. Superior Court, 129 Cal. 628, 62 Pac. 191; In re Atlas Iron Con- 
 struction Co., 2 N. Y. Ann. Cas. 124, 38 N. Y. Supp. 172; Mann v. 
 German-American Inv. Co. (Neb.), 97 N. W. 600. 
 
 258 State V. Ross, 122 Mo. 435, 25 S. W. 947, 23 L. E. A. 534; 
 Kimball v. Gcodburn, 32 Mich. 11; Hugh v. McRae, Chase Dec. 466; 
 Jones V. Bank of Leadville, 10 Colo. 464, 17 Pac. 272; Mcllhenny v. 
 Binz, 80 Tex. 1, 26 Am. St. Rep. 705, 13 S. W. 655; In re Moss Cigar 
 Co., 50 La. Ann. 789, 23 South. 544. The notorious "Wabash" case 
 ("Wabash etc. R. Co. v. Central Trust Co., 22 Fed. 272), contra, appears 
 to have been thoroughly discredited, and does not appear to have been 
 followed, unless Petition of Kittanning Ins. Co., 146 Pa. St. 102, 23 
 Atl. 336, the report of which is scarcely intelligible, is to be taken 
 as announcing the same doctrine. See the caustic criticism of the 
 Wabash case in State v. Ross, supra, and in an article by Gov. D. H. 
 Chamberlain, entitled "New Fashioned Receiverships," in Harvard 
 Law Review. The attempt (in Central Trust Co. v. Wabash, St. L. & 
 P. Ry. Co., 29 Fed. 618) to find support for its doctrine in subsequent 
 dicta of the supreme court of the United States, and in the previous 
 •ase of Brassey v. Railroad Co., 19 Fed. 663 (a suit by a bondholder)^ 
 is thoroughly exposed in the opinion of Brace, J., in State v. Ross, 
 gupra. 
 
 259 State V. Boss, supra; contra, that the appointment, although er-
 
 209 APPOINTMENT OF KECEIVEES OF CORPOKATIONa S 119 
 
 § 119. Suit for Dissolution and Receiver; No Inherent 
 Jurisdiction. — It is well settled, with scarcely a dissent- 
 ing voice, that in the absence of express statutory au- 
 thority, a court of equity has no power to dissolve a 
 corporation, or to wind up its affairs and sequestrate 
 its property.^*'^ A few exceptions have, however, been 
 admitted to this rule; as, where the corporation had 
 
 roncous, does not render the proceedings of the court consequent 
 thereupon void, so as to be assailable in a collateral proceeding, see 
 Mcllhenny v. Binz, 80 Tex. 1, 26 Am. St. Kep. 705, 13 S. W. 655. 
 
 260 Kepublica-n Mountain Silver Mines v. Brown, 7 C. C. A. 412, 
 24 L. E. A. 776, 58 Fed. 644, 648; Murray v. Superior Court, 129 Gal. 
 628, 62 Pac. 191; La Societe Francaise v. District Court ("French 
 Bank Case "),53 Cal. 495; People v. District Court of City and County 
 of Denver (Colo.), SO Pac. 909; People v. Weigley, 155 111. 491, 40 N. E. 
 300; Wheeler v. Pullman Iron etc. Co., 143 111. 197, 32 N. E, 420, 17 
 L. R. A. 818; Eaker v. Backus 's Admrs., 32 111. 79; Belmont v. Erie 
 Ey. Co., 52 Barb. (N. Y.) 637; Howe v. Duel, 43 Barb. 505; Bangs v. 
 Mcintosh, 23 Barb. 600; In re The Mart, 22 Abb. N. C. 227, 5 N. Y. 
 Supp. 82; Davis v. Flagstaff etc. Min. Co., 2 Utah, 74, 94; Mason 
 V. Equitable Lodge Supreme Court, 77 Md. 483, 39 Am. St. Eep. 
 433, 27 Atl. 171; Vila v. Grand Island Electric L. I. & C. S. Co. 
 (Neb.), 94 N. W. 136; Wallace v. Pierce-Wallace Pub. Co., 101 Iowa, 
 313, 322, 63 Am. St. Eep. 389, 70 N. W. 216, 38 L. E. A. 122; French 
 V. Gifford, 30 Iowa, 153; People's Inv. Co. v. Crawford (Tex. Civ. 
 App.), 45 S. W. 738. Such authority is not to be found in a gen- 
 eial statute, not relating to any specific class of cases, such as 
 Code of Iowa, § 2903, declaring that a receiver may be appointed 
 pendente lite "on the petition of either party to a civil action or 
 proceeding, wherein he shows that he has a probable right to, or in- 
 terest in, any property which is the subject of the controversy, and 
 that such property or its rents or profits are in danger of being lost 
 or materially injured or impaired," if the court is "satisfied that 
 the interests of one or both parties will be thereby promoted, and 
 the substantial rights of neither unduly infringed": Wallace v. i^iercc- 
 Wallace Pub. Co., and French v. Gifford, supra. This section does 
 not warrant the placing of the property of the corporation in the 
 hands of a receiver, when that practically accomplishes the same 
 purpose as a dissolution: Id. That the president of a corporation has 
 no power, without the authority of the directors or stockholders, to 
 consent to the appointment of a receiver to wind up the affairs of 
 a corporation, see Walters v. Anglo-American Mort. & T. Co., 50 Fed. 
 316. 
 
 Equitable Eemedies, Vol. I — 14
 
 I 119 EQUITABLE EEMEDIES. 210 
 
 utterly failed of its purpose because of fraudulent mis- 
 management and misappropriation of its funds by the 
 president and manager, who owned a majority of its 
 stock, a receiver was appointed to wind up its affairs 
 at the suit of a minority stockholder ;2^^ and it has been 
 held, even in New York, that a court of equity has in- 
 herent power to appoint a receiver on the application 
 of a stockholder for the purpose of the equitable dis- 
 tribution of the assets of an insolvent corporation, with- 
 out regard to the statutory provisions for the dissolu- 
 
 261 In the well-considered case of Miner v. Belle Isle Ice Co., 93 
 Mich. 97, 53 N. W. 218. The general rule is recognized, but it is 
 pointed out that a strict adherence to the rule, or the attempt to apply 
 any other remedy than a winding up of the business of the corpora- 
 tion through the agency of a receiver would amount to a denial of 
 justice, and violate the fundamental principle of equity that '•'it 
 is the duty of the court to adapt its practice and course of proceed- 
 ing to the existing state of society." It appeared that for a number 
 of years the defendant Lorman had controlled the corporation for his 
 own interest and profit, and had appropriated all the profits of the 
 business. The court says, after a discussion of the authorities: "The 
 present case furnishes an instance of gross abuse of trust. Must the 
 cestui que trust be committed to the -domination of a trustee who for 
 seven years continued to violate the trust? .... The trustee has so 
 far absorbed all returns. What is the outlook for the future? This 
 court, in view of the past, can give no assurances. It can make no 
 order that can prevent some other mode of bleeding this corporation, 
 if it is allowed to continue. If Lorman be removed, who shall take 
 his place? He has the absolute power to determine. Once deposed 
 
 he may elect a dummy to fill his place This corporation has 
 
 utterly failed of its purpose, not because of matters beyond its con- 
 trol, but because of fraudulent mismanagement and misappropriation 
 of its funds. Complainant has a right to insist that it shall not con- 
 tinue as a cloak for a fraud upon him, and shall not longer retain 
 his capital to be used for the sole advantage of the owner of a ma- 
 jority of the stock, and a court of equity will not so far tolerate such 
 a manifest violation of the rules of natural justice as to deny him 
 the relief to which his situation entitles him. I think a court of 
 equity, under the circumstances of this case, in the exercise of its 
 general equity, jurisdiction, has the power to grant to this complainant 
 ample relief, even to the dissolution of the trust relations. Complain- 
 ant is therefore entitled to the relief prayed. A receiver will be 
 appointed, and the affairs of this corporation wound up."
 
 211 APPOINTMENT OF KECEIVEES OF CORPORATIONS. § Hit 
 
 tion of corporations, where the directors refuse to in- 
 stitute statutory proceedings for a voluntary dissolu- 
 tion, and there is danger of the assets being absorbed 
 by judgments that will be recovered, so as to render an 
 application to the attorney-general useless.^^^ j^ ^ re- 
 cent case in the United States circuit court for the 
 eastern district of North Carolina the court even went 
 to the length of appointing a receiver for the purpose 
 of the dissolution of a solvent and prosperous corpora- 
 tion, and the sale of its property, for the sole reason, 
 apparently, that this action was desired by a majority 
 of the stockholders, and that a minority stockholder 
 was threatening to procure the passage of a bill by the 
 state legislature forfeiting the charter of the corpora- 
 tion.263 
 
 262 Porter v. Industrial Information Co., 25 N. Y. Supp. 328, 5 
 Misc. Rep. 263. The court says: "Whenever, in the course of events, 
 it proves impossible to attain the real objects for which a corpora- 
 tion was formed, or when the failure of the company has become in- 
 evitable, it is the duty of the company's agents to put an end to its 
 operations, and to wind up its affairs; and if the majority should 
 attempt to continue its operations, in violation of its charter, or 
 should refuse to make a distribution of the assets, any shareholder 
 feeling aggrieved will be entitled to the assistance of the courts: Mor. 
 Corp., § 284; Merchants' etc. Line v. Wagoner, 71 Ala. 581; Cramer 
 V. Bird, L. R. 6 Eq. 143." 
 
 263 Arents v. Blackwell's Durham Tobacco Co., 101 Fed. 338, 
 (Simonton, J.). This decision, surely one of the most arbitrary ever 
 rendered by a federal court, even in that circuit, is not cited here, 
 it is hardly necessary to say, for its value as a precedent. No war- 
 rant whatever was found, or sought, by the court, in any legislation 
 of the state of North Carolina, and the court expressly recognized the 
 general rule forbidding the interference of a court of equity in the 
 internal management of the affairs of a corporation, and the absence 
 of any jurisdiction in such a court to dissolve a corporation, to wind 
 up its affairs and in that connection to appoint a receiver. The court 
 excuses its action with the vague statement that "a recognized 
 ground of relief in equity is, when the affairs of the corporation are 
 •not satisfactory, when it is in the midst of or threatened with dis- 
 aster, when further prosecution of its business will lead to loss and 
 insolvency." The authorities cited, of course, establish no such
 
 I 120 EQUITABLE REMEDIES. 213 
 
 § 120. Stockholders' Suit for Breach of Fiduciary Duty 
 by Directors. — Cases are to be found which assert that 
 courts of equity, by virtue of their general equitable 
 jurisdiction, will not appoint a receiver of a corpora- 
 tion, and assume control and management of its af- 
 fairs, at the suit of a stockholder alleging fraud, mis- 
 management, and collusion on the part of the corporate 
 authorities, or ultra vires acts of the directors or of the 
 corporation itself.^^* The denial of the power to grant 
 the relief in such cases is based on one or both of two 
 grounds: First, that such relief, in effect, results in 
 a dissolution of the corporation, and the court should 
 refuse to accomplish indirectly that which it has no 
 power to do directly ;^^'^ second, that an injunction, 
 addressed to the specific wrongs charged, affords a 
 sufiQcient remedy.^^® But, notwithstanding many dicta, 
 and the assertions of the older text-books, the current 
 of recent authority appears to be strongly in favor of 
 the inherent power of the court, in a proper case, to 
 displace the management of guilty or negligent offi- 
 
 ground for the dissolution of corporations by courts of equity, but 
 merely concern the right of the majority stockholders themselves to 
 put an end to the business of the corporation under such circum- 
 stances. 
 
 264 People's Investment Co. v. Crawford (Tex. Civ. App.), 45 S. W. 
 738; Empire Hotel Co. v. Main, 98 Ga. 176, 25 S. E. 413; Fischer v. 
 Superior Court, 110 Cal. 129, 42 Pac. 561; Neall v. Hill, 16 Cal. 145, 
 76 Am. Dec. 508; Eobison v. Cleveland City R. Co., 7 Ohio Dec. .312; 
 People V. Judge of St. Clair Circuit, 31 Mich. 456; Mason v. Supreme 
 Court of Equitable League, 77 Md. 483, 39 Am. St. Rep. 433, 27 Atl. 
 171; Goodman v. Jedidjah Lodge, 67 Md. 117, 9 Atl. 13, 13 Atl. 627; 
 Waterbury v. Merchants' Union Express Co., 50 Barb. 157. See, also, 
 High on Receivers, § 288. 
 
 265 Fischer v. Superior Court, 110 Cal. 129, 42 Pac. 61. 
 
 266 People's Inv. Co. v. Crawford (Tex. Civ. App.), 45 S. W. 738; 
 Empire Hotel Co. v. Main, 98 Ga. 176, 25 S. E. 413; Waterbury v. 
 Merchants' Union Express Co., 50 Barb. 157. And see Laurel Springs 
 Land Co. v. Fougeray, 50 N. J. Eq. 756, 26 Atl. 886.
 
 213 APPOINTMENT OF KECEIVEKS OF COEPORATIONS. § 121 
 
 cials by the instrumentality of its receiver.^^'^ It lias 
 been frequently pointed out that the appointment of a 
 receiver in cases of this character does not necessarily 
 result in the dissolution or extinction of the corpora- 
 tion. "The property and assets of the corporation, 
 which are being dissipated and fraudulently absorbed, 
 will be preserved and rightfully applied under the su- 
 pervision of the court, and may be restored to the offi- 
 cers of the corporation, when there has been a change 
 of officers, or when it is deemed prudent and safe to 
 restore the property and affairs of the corporation to 
 its duly constituted ofiicers."^^® 
 
 § 121. Same; Power, When not Exercised. — In a suit 
 by a stockholder, a receiver will not be appointed to 
 take the property out of the hands of the managers, ex- 
 
 267 See Gluck & Becker on Eec. of Corp., § 9, and cases cited; 
 Towle V. American Bldg. etc. Soc, 60 Fed. 131; Aiken v. Colorado 
 Riv. Imp. Co., 72 Fed. 591; Wayne Pike Co. v. Hammond, 129 Ind. 
 368, 27 N. E. 487; Supreme Sitting I. H, v. Baker, 134 Ind. 293, 33 N, 
 E. 1128, 20 L. R. A. 210; In re Lewis, 52 Kan. 660, 35 Pac. 287; Davis 
 V. United States Electrical etc. Co., 77 Md. 35, 25 Atl. 982; Miner v. 
 Belle Isle Ice Co., 93 Mich. 97, 53 N. W. 218, 17 L. R. A. 412; State 
 V. Second Judicial District Court, 15 Mont. 324, 48 Am. St. Rep. 682, 
 39 Pac. 316, 27 L. R. A. 392; Ponca Mill Co. v. Mikesell, 55 Neb. 
 98, 75 N. W. 46; Porter v. Industrial Information Co., 25 N. Y. Supp, 
 328, 5 Misc. Rep, 262; Line v. Carlisle Mfg. Co., 5 Pa. Dist. R. 642; 
 Cameron v. Groveland Imp. Co., 20 Wash. 169, 72 Am. St. Rep. 26, 
 54 Pac. 1128; Haywood v. Lincoln Lumber Co., 64 Wis. 639, 26 N. 
 W. 184. In a few of these cases the jurisdiction was aided by the 
 terms of some general statute; but in all of them the inherent power 
 of courts of equity was recognized. 
 
 268 In re Lewis, supta; Supreme Sitting of the Order of Iron Hall 
 V. Baker, 134 Ind. 293, 33 N. E. 1128, 20 L. R. A. 210; State v. Sec- 
 ond Judicial District Court, 15 Mont. 324, 48 Am. St. Rep. 682, 27 L. 
 E. A. 392, 39 Pac. 316; Gibbs v. Morgan (Idaho), 72 Pac. 733, and 
 cases cited. That the guilty officers are necessary parties to the suit, 
 see Edwards v. Bay State Gas Co., 91 Fed. 942. That the allegations 
 of fraud must be specific, see Wheeler v. Pullman Iron etc. Co., 43 HI. 
 App. 626; Baker v. Backus 's Admr., 32 111. 79.
 
 5 121 EQUITABLE REMEDIES. 214 
 
 cept as a last resort, and when it is considered abso- 
 lutely necessary for the preservation of the trust 
 fund.^^^ So, when it appears that the appointment of 
 a receiver, with the expenses incident thereto, would 
 probably render the corporation insolvent, the court 
 will endeavor to give relief by enjoining the managers 
 from the further execution of contracts resulting in the 
 diversion of corporate funds, and from committing 
 other acts of mismanagement.^^" Moreover, the princi- 
 ple must be borne in mind that a receivership is a 
 preventive, not a punitive, measure. "Courts do not ap- 
 point receivers as a punishment for past dereliction, 
 nor because of past dangers. Receivers are appointed 
 because of present conditions, and well-founded ap- 
 prehension as to the future."^^^ The complaining stock- 
 holder must, of course, show that his fears are well 
 grounded.^^^ He must himself be free from any parti ci- 
 
 269 United Securities Co. v. Louisiana Electric L, Co., 68 Fed. 673. 
 See, also, Bridgeport Development Co. v. Tritsch, 110 Ala. 274, 20 
 South. 16; Laurel Springs Land Co. v. Fougeray, 50 N. J. Eq. 756, 
 26 Atl. 886; Miller v. Kitchen (Neb.), 103 N. W. 297. 
 
 270 United Securities Co. v. Louisiana Electric L. Co., 68 Fed. 673. 
 
 271 Original "Vienna Bak. etc. Co. v. Heissler, 50 111. App. 406. 
 "Past conduct and past conditions may be taken into consideration 
 in determining what the present situation is and the future will be, 
 but a receiver will not be appointed because of things done or at- 
 tempted at a past time, when the present situation and the prospects 
 for the future are not such as to warrant taking the control of the 
 property out of the hands of its owners": Id. See, also, Marcuse v. 
 Gullett Gin Mfg. Co., 52 La. Ann. 1383, 27 South. 846; New Albany ' 
 Waterworks v. Louisville Banking Co., 122 Fed. 776,' 58 C. C. A. 576 
 (one unauthorized act not ground for appointment; "it cannot be 
 presumed that they will mismanage or act otherwise than in con- 
 formity with the order" setting aside an unauthorized act). 
 
 272 So, the fears of a complainant that a suit brought by the 
 COTporation against an officer will not be diligently prosecuted, owing 
 to the relation of the parties, will not warrant the appointment of 
 a receiver to take charge of the suit, no laches on the part of the cor- 
 poration being shown: Griffing v. Griffing Iron Co., 96 Fed. 577. That 
 the president of a corporation is in a position where he may betray
 
 215 APPOINTMENT OF KECEIVEES OF COEPORATIONS. § 121 
 
 pation in the breaches of trust on the part of the ministe- 
 rial officers of the corporation.^'^s gjg right to the relief 
 must be based on something more than mere irregulari- 
 ties in levying of assessments,^'^* or than a denial of 
 the right of the stockholders to inspect the corporate 
 books, as such right may, if necessary, be enforced by 
 other and appropriate orders ;^^^ or than a refusal by 
 the directors, not shown to be made with corrupt mo- 
 tive, to permit a pledgee of stock to vote it.^^® The 
 appointment of a receiver of a solvent corporation on 
 tlio application of a minority stockholder is a very 
 drastic remedy, which can be justified only in a very 
 strong case.^'' 
 
 its interests will not justify a receivership, when there is no evidence 
 to justify the probability that he will betray them: Young v. Rutan, 
 69 111. App. 513. The appointment of a receiver for a corporation 
 will not be made, the bill containing no allegations of mismanage- 
 ment, improper application of funds, or other acts of corporate mal- 
 administration, merely on the general allegation of the shareholders 
 socking the appointment that they apprehend exposure in the future, 
 if the corporation is not wound up, to liabilities not contemplated 
 when they became shareholders: Mulqueeney v. Shaw, 50 La. Ann. 
 1060, 23 South. 915. 
 
 273 Hyde Park Gas Co. v. Kerber, 5 HI. App. 132. 
 
 274 Hardee v. Sunset Oil Co., 56 Fed. 51. In this case the di- 
 rectors of a corporation levied an assessment on its stock, and, on 
 failure to pay the same, advertised for sale only the stock of one 
 who held nearly one-third of the entire stock, although other stock- 
 holders were also delinquent; it appearing, however, that the other 
 stockholders had promised to pay. At a meeting of the directors at 
 which only the president, secretary and treasurer were present, they 
 voted themselves salaries, which, however, they never collected. It 
 was shown that no actual fraud was intended. Held, that the ir- 
 regularities are not sufficient to justify appointing a receiver for 
 the corporation. 
 
 275 Original Vienna Bak. etc. Co. v. Heissler, 50 111. App. 406; 
 Alabama Coal & Coke Co. v. Shackelford, 137 Ala. 224, 97 Am. St. 
 Eep. 23, 34 South. 833. 
 
 276 Thalmann v. Hoffman House, 27 Misc. Eep. 140, 58 N. Y. Supp. 
 227. 
 
 277 Eothwell V. Eobinson, 44 Minn. 538, 47 N. W. 255; Continental 
 Nat. B. & L. Assn. v. Miller, 44 Fla. 757, 33 South. 404. In Eumney v.
 
 5 122 EQUITABLE EEMEDIES. 216 
 
 § 122. Same; Power, When Exercised. — The following 
 cases may serve to illustrate the circumstances under 
 which receivers have been appointed at the suit of stock- 
 holders : Where the officers of a building and loan asso- 
 ciation have so mismanaged its affairs that its aysets 
 amount to less than two-thirds of the capital paid in f^^ 
 
 Detroit & M. Cattle Co., 116 Mich. 640, 74 N. W. 1043, a receiver wag 
 refused on a bill by the owner of one-eighth of the stock of a cor- 
 poration, alleging that defendant controlled a majority of the stock, 
 loaned the profits in his own name, and refused to declare dividends 
 until threatened with suit, and then withheld dividends coming to 
 complainant; that no meetings of the directors had been held, nor 
 reports of the condition of the company filed, as required by law, 
 and that such condition had not been made known to the stockholders; 
 and that no books of the company were kept, except a private mem- 
 orandum of the defendant, which was inaccessible to stockholders. 
 It was not shown that other stockholders were dissatisfied with the 
 management, and there was no allegation of insolvency, or that defend- 
 ant was irresponsible, and it appeared that complainant was in con- 
 trol of most of the property of the corporation, and that a dispute over 
 unsettled claims was the mainspring of the litigation. In Ranger v. 
 Champion Cotton Press Co., 52 Fed, 609, the bill and affidavits charged 
 that the president of the company refused to account for a large sum 
 of money intrusted to him by the company to be used in the promo- 
 tion of its interests, that he had applied this money to his own use, 
 and obstinately refused to give the complainant an inspection of the 
 books of the company, or any information whatever of its affairs; 
 that he was insolvent, and since the inauguration of the suit had 
 mortgaged all his real estate, with manifest intent to defeat the 
 claim of the company. The bill contained no allegation of fraudulent 
 collusion on the part of the other stockholders, but Intimated that 
 the president was sustained by them. The solvency of the company 
 was unquestionable. It was held that the allegations were insufficient 
 to warrant the court to appoint a receiver before answer, without the 
 consent of the majority of the stockholders. See, also, Laurel Springs 
 Land Co. v. Fougeray, 50 N. J. Eq. 756, 26 Atl. 886; Baker v. Backus 'a 
 Admr., 32 111. 79; Alabama Coal & Coke Co. v. Shackelford, 137 Ala. 
 
 224, 97 Am. St. Eep. 23, 34 South. 833 (not because directors hold 
 
 over in default of election, and refuse to show books, and to disclose 
 
 facts connected with business). 
 
 278 Towle V. American Building, Loan & Investment Society, 60 
 Fed. 131. See, also, Continental Nat. B. & L. Assu, v. Miller, 44 Fla. 
 
 757, 33 South. 404.
 
 217 APPOINTMENT OF EECEIVEES OF CORPORATIONS. § 122 
 
 where the directors of a turnpike company have refused 
 to keep the corporate property in repair, thus rendering 
 it unproductive ;^'^^ where the business and affairs of 
 tlie corporation have been so mismanaged that it lias 
 become insolvent, and it is made to appear that all the 
 officers and directors have conspired together to divert 
 its business to another company, dissipate its funds, 
 and fraudulently absorb and apply its assets to the 
 individual benefit of such officers ;^^° where four stock- 
 holders get control of the majority of the stock of the 
 corporation, elect their officers, pocket the dividends, 
 keep false books to deceive other stockholders, and buy 
 a worthless franchise for which they mortgage the cor- 
 porate property for the purpose of having the mortgage 
 foreclosed, and the property of the corporation wiped 
 out, a receiver may be appointed pending an action 
 by minority stockholders to have the mortgage can- 
 celed ;^^^ in a suit to compel an accounting, on allega- 
 tion that the officers have converted and are continuing 
 to convert the money and property of the corporation 
 to their own use, as pretended salaries and expenses, 
 without any authority therefor, and fraudulently ;^^^ 
 where the president and secretary of a corporation 
 mortgaged its property, when it was nearly or quite in- 
 solvent, to secure their antecedent claims against the 
 
 270 Wayne Pike Co. v. Hammons, 129 Ind. 368, 27 N. E. 487. The 
 court relied, in part, on the broad terms of the statute (Ind. Rev. 
 ■Stats. 1881, § 1222, cl. 7), providing that receivers may be appointed 
 in cases "where, in the discretion of the court, it may be necessary to 
 secure ample justice to the parties." 
 
 280 In re Lewis, 52 Kan. G60, 35 Pac. 287. The court remarks that 
 **in most cases of this character, no other adequate remedy exists." 
 
 281 State v. Second Judicial Dist. Court, 15 Mont. 324, 48 Am. St. 
 Eep. 682, 39 Pac. 316, 27 L. R. A. 392, a vigorous and instructive opin- 
 ioB. 
 
 282 Cameron v. Groveland Improvement Co., 20 Wash. 169, 72 Am, 
 St. Rep, 26, 54 Pac. 1128.
 
 f 123 EQUITABLE REMEDIES. 218 
 
 corporation in fraud of creditors, and threatened to 
 f*ell out in gross all the property of the corporation 
 without notice, and in this way to close up the business 
 of the company.283 "in all such cases the courts should 
 proceed with caution, and carefully avoid having their 
 process made use of for the purpose merely of direct- 
 ing corporate action adversely to the policy of the ma- 
 jority stockholders and that of the regular chosen offi- 
 cers; that is to say, that stockholders must not be per- 
 mitted to invoke the power of the court, through the 
 appointment of a receiver, simply to enforce their own 
 ideas of the conduct of affairs, against the majority of 
 the duly constituted officers. Matters of corporate 
 policy must be determined by the corporation itself. 
 On the other hand, when it clearly appears that the dis- 
 pute is not of that character, but arises out of an at- 
 tempt of the officers or the majority stockholders to 
 abuse their power by misappropriating the corporate 
 property, by using the corporate means for their indi- 
 vidual profit, or by so acting as to willfully and wrong- 
 fully jeopardize the corporate business, then the courts 
 should not hesitate to afford relief. No one is more 
 helpless, unless aided by the arm of the law, than the 
 holder of a small portion of the stock of a corporation, 
 when the large stockholders combine to advance their 
 private interest at the expense of the corporation."^^* 
 
 § 123. Receiver After Dissolution. — "Since it has come 
 to be recognized everywhere that, upon the dissolution 
 of a trading corporation, its property neither reverts 
 to its grantors nor escheats to the state, but belongs, 
 
 283 Haywood v. Lincoln Lumber Co., 64 Wis. 639, 26 N. W. 184. 
 For further illustrations, see Elwood v. Bank, 41 Kan. 475, 21 Pac. 
 673; Du Puy v. Transportation etc. Co., 82 Md. 408, 33 Atl. 889, 34 
 Atl. 910. 
 
 284 Ponca Mill Co. v. Mikesell, 55 Neb. 98, 75 N. W. 46.
 
 219 APPOINTMENT OF EECEIVEKS OF CORPORATIONS. § 123 
 
 after payment of its debts, to those who were stockhold- 
 ers at the date of dissolution, .... some means must 
 be provided for winding up the corporation and distrib- 
 uting its assets according to the equitable rights of 
 those interested. In the absence of any statute regulat- 
 ing the matter, a court of equity would have the un- 
 doubted right, in a proper proceeding instituted by a 
 creditor or a stockholder, to appoint a receiver to ad- 
 minister the property."^^^ Such statutes exist in a 
 majority of the states, providing, in substance, that 
 upon the dissolution of any corporation, the directors 
 or managers of the affairs of such corporation at the 
 time of its dissolution shall be the trustees of the cred- 
 itors and stockholders of the corporation dissolved, and 
 shall have full power to settle the affairs of the cor- 
 poration, collect and pay the outstanding debts, and di- 
 vide among the stockholders the moneys and other 
 property that shall remain, after the payment of debts 
 and necessary expenses.^^® 
 
 285 Havemeyer v. Superior Court, 84 Cal. 327, 362, 18 Am. St. Rep. 
 192, 24 Pac. 121, 10 L. R. A. 627. See, also, Stark v. Burke, 5 La. Ann. 
 740; United States v. Church of Jesus Christ of L. D. S., 5 Utah, 361, 
 15 Pac. 473; Olmstead v. Distilling etc. Co., 73 Fed. 44. The last case 
 states the effect of an Illinois statute (lU. Rev. Stats., c. 32, §§ 
 10-12), whereby the corporate capacity of corporations whose powers 
 may have expired by limitation or otherwise is continued during the 
 term of two years for the purpose only of collecting the debts due said 
 corporation and selling and conveying the property and effects thereof. 
 It was held that upon a judgment of ouster in quo warranto proceed- 
 ings the corporation itself (not its directors) becomes a trustee for 
 its creditors and, subject to their rights, for its stockholders; and a 
 bill by a stockholder, in behalf of himself and other stockholders who 
 may join with him, showing that the corporation itself, acting through 
 its directors, was unable to execute and carry out the trust, because 
 the affairs of the corporation were involved and its property in dan- 
 ger of being dissipated through executions and attachments, pre- 
 Bented a good case for a receiver to administer its assets. 
 
 286 See 2 Stimson Am. St. Law, § 8356, enumerating: 
 Alabama.— Code, 1886, S§ 1691, 1693.
 
 i 123 EQUITABLE REMEDIES. 220 
 
 A receiver cannot be appointed to cari-y on tlie busi- 
 ness of a dissolved corporation, whose assets are in the 
 hands of the statutory trustees, when the corporation 
 is made the sole party defendant to the bill.^^' 
 
 In the settlement of the affairs of a dissolved corpora- 
 tion it is not a right of a minority of the stockholders 
 to have a decree for receivers and a sale of assets, es- 
 pecially where they are in the hands of a trustee who 
 admits the existence of the trust and shows his readi- 
 ness and ability to perform it more effectively and 
 
 California.— Civ. Code, § 400. 
 
 Colorado.— Gen. Stats. 1883, § 341. 
 
 Delaware.— Biennial Laws, vol. 17, c. 147, § 32. 
 
 Florida.— Digest, 1881, c. 34, § 21 (in cases of voluntary dissolution 
 only). 
 
 Idaho.— Kev. Stats. 1887, § 2648, 
 
 Kansas.— Kelly's Gen. Stats, 1891, c. 23, § 42. 
 
 Maryland.— Public Gen. Laws 1888, c. 23, § 272. 
 
 Missouri.— Rev. Stats. 1889, § 2513. 
 
 Montana.— Gen. Laws, § 489. 
 
 Nebraska.— Comp. Stats. 1885, c. 16, § 62. 
 
 Nevada.— Gen. Stats. 1885, § 822. 
 
 New Jersey.— Corp. 57. 
 
 New Mexico.— Comp, Laws 1884, § 210. 
 
 New York.— Laws of 1890, c. 563, § 19. 
 
 North Dakota.— Civ. Code, § 420. 
 
 Ohio.— Revision of 1890, § 5675. See, also, §§ 5687, 5688. 
 
 Oklahoma.— Stats. 1890, § 995. 
 
 South Dakota.— Civ. Code, § 420. 
 
 Tennessee.— Milliken & Vertrees' Code 1884, §§ 1721, 1723. 
 
 Texas.— Rev. Stats. 1879, §§ 606, 607. 
 
 Washington.— Code 1881, § 2441. 
 
 Wisconsin.— Sanb. & Berr. Stats. 1889, § 1764. 
 
 Wyoming.— Rev. Stats, 1887, § 647. 
 
 287 Weatherby v. Capital City Water Co., 115 Ala. 156, 22 South. 
 140.
 
 221 APPOINTMENT OF EECEIVERS OF CORPORATIONS, § 124 
 
 more economically than could be done by receivers.^'^^ 
 And where the charter of a corporation has expired, 
 and its property and assets are in the custody, and its 
 affairs under the management, of the persons desig- 
 nated by statute, the mere fact of dissolution, without 
 more, furnishes no ground for the appointment of a 
 receiver ;2^^ similarly, when the articles of association 
 provide the manner of winding up the business, and no 
 reason is shown why the mode provided cannot be exe- 
 cuted, a receiver cannot be appointed for the corpora- 
 tion on the demand of one of the members who is dis- 
 satisfied with the action of the majority.^^® 
 
 § 124. Dissensions in the Governing Body of the Corpora- 
 tion, and Among the Stockholders. — "The power of a court 
 of equity to appoint a receiver of a corporation either 
 because it has no properly constituted governing body, 
 or because there are such dissensions in its governing 
 body as to make it impossible for the corporation to 
 carry on its business with advantage to its stockhold- 
 ers, appears to be settled; but it is equally well settled 
 that this power is subject to certain limitations, namely, 
 it must always be exercised with great caution, and 
 only for such time and to such an extent as may be 
 necessary to preserve the property of the corporation, 
 and protect the rights and interests of its stockTiolders. 
 As soon as a lawfully constituted and competent gov- 
 erning body comes into existence, whether it is brought 
 into existence by an adjustment of the dissensions or 
 
 288 Baltimore & O. R. Co. v. Cannon, 72 Md, 493, 20 Atl. 123. 
 
 289 Anderson v. Buckley, 126 Ala. 623, 28 South. 729; for facts 
 authorizing appointment, see S. C, on second appeal, Buckley v. 
 Anderson, 137 Ala. 325, 34 South. 238. In support of the text, see, 
 also, Ferrell v. Evans, 25 Mont. 444, 65 Pac. 714. 
 
 290 Pringle v. Eltringham Const. Co., 49 La. Ann. 301, 21 South. 
 515; and see Follett v. Field, 30 La. Ann. 162.
 
 S 124 EQUITABLE REMEDIES. 222 
 
 by the election of a new body, and such body is ready 
 to take possession of the property of the corporation, 
 and proceed in the proper discharge of its duties, the 
 court must lift its hand and retire. "^^^ But mere dis- 
 
 291 Edison v. Edison United Phonograph Co., 52 N. J. Eq. 620, 
 29 Atl. 195, citing Featherstone v. Cooke, L. E, 16 Eq. 298; Trade 
 Auxiliary Co. v. Vickers, L. K. 16 Eq. 303; Einstein v. Rosenfeld, 
 38 N. J. Eq. 309; Archer v. Waterworks Co., 50 N. J. Eq. 33, 24 
 Atl. 508. Also, see Wallace v. Pierce-Wallace Pub. Co., 101 Iowa, 
 313, 329, 63 Am. St. Eep. 389, 70 N. W. 216. In the first case it was 
 further said: "Neither of the grounds which this doctrine recog- 
 nizes as sufficient to warrant the appointment of a receiver exists 
 in this case. The defendant corporation has a lawfully constituted 
 governing body, which is in peaceable possession of all its propert}', 
 controlling and directing its business, regularly and peacefully, in 
 conformity to the judgment of seven of its nine directors. Two of 
 the nine differ in judgment from the other seven. The two believe 
 that the adoption of a different course of business from that which 
 is now pursued would result in larger gains. Both methods are 
 clearly within the purposes and powers of the corporation. Which 
 method shall be pursued, or whether one or both, is a question which 
 the law commits absolutely and unconditionally to the judgment of 
 a majority of the directors. Though somewhat disguised, the real 
 purpose of the bill in this case appears, when critically examined, 
 to be to induce judicial action which shall substitute the judgment 
 of a minority of the directors of this corporation for that of the 
 majority. That cannot be done. It is beyond judicial power. No 
 rule of law is better settled than that which declares that so long 
 as the directors of a corporation keep within the scope of their pow- 
 ers, and act in good faith and with honest motives, their acts are 
 not subject to judicial control or revision." In Wallace v. Pierce- 
 Wallace Pub. Co., siiijra, a somewhat stromger case, it was held that 
 a receiver will not be appointed on the ground that the corporation 
 has but two stockholders owning an equal number of shares of stock, 
 and owns stock in another corporation, respecting the management 
 of which there is such disagreement between the stockholders in 
 the first-named corporation that they cannot agree in any measures 
 for the voting of such stock, or for the management of the second 
 corporation, nor will a receiver be appointed of such stock alone. 
 Emphasis was laid on "the temporary and limited nature of the relief 
 that is permissible in such cases. "Now, a court of equity has no 
 power to make them [the stockholders] agree; and, if their differ- 
 ences are such that it is impossible for them to carry on their busi- 
 ness, it is not. likely that the appointment of a receiver wiU bring
 
 223 APPOINTMENT OF EECEIVEKS OF CORPORATIONS. § 121 
 
 satisfaction by a minority of the stockholders of a cor- 
 poration with its management by the majority, in the 
 
 about a reconciliation What, then, must result? Either that 
 
 a court must carry on this business for the interest of the stock- 
 holders until the corporation is dissolved by lapse of time, or that 
 one of the parties should sell his stock, or such portion thereof, as 
 will give a majority to one or the other of these litigants." See, to 
 the same effect, Little Warrior Coal Co. v. Hooper, 105 Ala. 665, 17 
 South. 118. In this case one of the grounds of complaint was, that 
 the stock was equally divided between the complainant and the two 
 defendants; that the latter acted and voted in confederation; that 
 the three could not agree as directors in the management of the busi- 
 ness, and could not elect directors; and that for this reason a re- 
 ceiver should be appointed to take charge of and operate the busi- 
 ness. The bill did not show whether the plaintiff or the defend- 
 ants were to blame, and charged no fraud. The court says: "The 
 bill shows a mere disagreement among themselves as to how the 
 business should be operated and managed, and who should control 
 it. No case has been cited, and we have found none, nor any prin- 
 ciple of law, which would authorize the appointment of a receiver 
 upon such averments." 
 
 From the brief statement of facts in the last case, it is difficult 
 to distinguish it from Sternberg v. Wolff, 56 N. J. Eq. 389, 67 Am. 
 St. Rep. 494, 39 Atl. 397, 39 L. R. A. 762, reversing the decision of 
 Vice-chancellor Pitney in 56 N. J. Eq. 555, 42 Atl. 1078. The im- 
 portance of this decision justifies a somewhat lengthy quotation 
 from the opinion of Depue, J. "The two parties to the controversy 
 — Sternberg and his wife, on the one side, and Wolff and his wife, 
 on the other side— are the owners each of one-half of the capital 
 stock. These four individuals are directors of the company, and 
 by the by-laws the whole number is necessary to make a quorum for 
 the transaction of business. The dissensions between these two par- 
 ties— Sternberg and his wife, on one side, and Wolff and his wife, 
 on the other side — have brought the affairs of this company to a 
 deadlock, so far as any corporate action by the board of directors 
 is concerned. It may be assumed that the court of chancery has 
 no jurisdiction to dissolve a solvent corporation, and distribute its 
 assets, on the ground that the business of the corporation is -improp- 
 erly conducted by its board of directors, even though such misman- 
 agement be with the concurrence of a majority of the stockholders; 
 but the jurisdiction of the court of chancery to control the business 
 of a company, especially a trading company, pending a litigation 
 over the management and conduct of its business, must necessarily 
 exist; and we think, pending a litigation such as that which is in- 
 augurated by the proceedings in this case, a receiver may be ap-
 
 J 124 EQUITABLE REMEDIES. 224 
 
 absence of fraud or insolvency, is not sufficient to au- 
 thorize the court to appoint a receiver at the instance 
 
 pointed No reason appears why in the matter of the control 
 
 and conduct of its business the corporation and its officers should 
 not be within the control of the court of chancery to an extent cor- 
 responding with the control of that court over the business of a 
 mere partnership. The cases seem to establish the power of the 
 eourt in virtue of its general jurisdiction to preserve the subject of 
 litigation pendente life, though it may relate to the affairs of a trad- 
 ing company in form organized as a corporation. The two cases 
 eited by the vice-chancellor in his second opinion are to that effec* 
 Featherstone v. Cooke, L. R. 16 Eq. 298; Trade Auxiliary Co. v. 
 Vickers, L. R. 16 Eq. 303. In the first case the complications in the 
 affairs of the company arose out of a division in the board of di- 
 rectors, which made it absolutely impossible that the affairs of the 
 fompany could be conducted with advantage. Vice-Chancellor Ma- 
 iins, in that case, says: 'With regard to private partnerships, noth- 
 ing is of more frequent occurrence than the quarrels of partners. If 
 partners quarrel, oust each other from the management, or so con- 
 •luct themselves that the partnership cannot go on with advantage, 
 it is every day's practice for the court to interfere by injunction, 
 and appoint a receiver if necessary. With regard to public com- 
 panies, I apprehend the same principle is applicable. If a state of 
 things exists in which the governing body are so divided that they 
 cannot act together, and there is the same kind of feeling between 
 the members as there is frequently in the case of private partner- 
 ships, it is clearly within the rule of this court to interfere, and it 
 will do so.' The court in that case intervened by injunction and 
 receiver simply to protect the property of the company, to con- 
 tinue, however, no longer than until a governing body was duly 
 appointed. In the latter case the dissension was also in the board 
 of directors, one set of which closed the office doors of the com- 
 pany's building, and the other set, with the aid of some laborers, 
 broke open the doors with crowbars, and forced the office open. 
 The prayer of the bill was for the appointment of a receiver until 
 the proper board of directors was constituted. The vice-chancellor 
 placed the affairs of the company in the hands of a receiver pendente 
 lite until a new governing body was appointed." Mr. Justice Depue 
 also finds warrant for the appointment in certain dicta in Einstein 
 V. Rosenfeld, 38 N. J. Eq. 309; in Edison v. Phonograph Co., supra; 
 in Fougeray v. Cord, 50 N. J. Eq. 185, 756, 24 Atl. 499, 26 Atl. 
 866; and in the opinion of Chancellor McGill in Archer v. Water- 
 works, 50 N. J. Eq. 33, 24 Atl. 508. ' In the last case, a suit by a 
 stockholder, the complainant seemed to have the equitable owner- 
 ship of certain stock, but the parties in control of the corporation
 
 225 APPOINTMENT OF RECEIVERS OF CORPORATIONS. § 124 
 
 of the minority.^®^ "A court of equity has no power to 
 interpose its authority for the purpose of adjusting con- 
 
 fraudulently refused to make the transfer of such stock on the cor- 
 poration's books. This, of course, prevented the complainant from 
 voting. The chancellor said: "I think it is plainly my duty to in- 
 terfere by injunction, to prevent the perpetration of the wrong here 
 threatened. If the present directors of the company continue their 
 dissensions, so that the affairs of the company are not speedily at- 
 tended to, upon a proper application I will care for the property, 
 pending the determination of the suit, through the instrumentality of 
 a receiver. Such actions will be supported by precedents and au- 
 thority [citing the cases from L. R. 16 Eq.]. My interference, 
 however, by injunction and receiver, will be limited to the impera- 
 tive requirements of the present emergency." Jasper Land Co. v. 
 Wallis, 123 Ala. 652, 26 South. 659, was a case of rival boards of 
 directors. "The Jasper Land Company has two boards of directors, 
 or rather there are two sets of men, each claiming to be and con- 
 stitute its board of directors. Each of these alleged boards is at- 
 tacking the integrity and existence of the other in divers proceed- 
 ings at law and in chancery It is plain to us that neither 
 
 set is so in possession and control of the property and affairs of the 
 company as to be able to take the necessary steps to the effectua- 
 tion of the relief the stockholders are entitled to [viz., relief to 
 minority stockholders against mismanagement and misappropriation 
 of funds of the corporation]. In such case the appointment of a re- 
 ceiver, even though the corporation be solvent, to take charge and 
 control of its effects and concerns, at least until there is a recog- 
 nized board of directors competent to faithfully and efficiently con- 
 serve the interests of all the stockholders, is within the proper exer- 
 cise of the jurisdiction of the chancery court," citing many of the 
 cases supra. For further instances where receivers were appointed 
 because of dissensions, or the existence of rival boards of directors, 
 see Powers v. Blue Grass Building etc. Assn., 86 Fed. 705; Tompkins 
 Co. V. Catawba Mills, 82 Fed. 780 (in suit by creditors); Gibbs v. 
 Morgan (Idaho), 72 Pac. 733; Sheridan Brick Works v. Marion Trust 
 Co., 157 Ind. 292, 87 Am. St. Rep, 207, 61 N. E. 666. As to the ap- 
 pointment of a receiver where there is no governing body of the 
 corporation, see In re Belton, 47 La. Ann. 1614, 18 South. 642, 30 
 L. R. A. 648; Brown v. Union Ins. Co., 3 La. Ann. 177. 
 
 The rule of Featherstone v. Cooke and Auxiliary Co. v. Vickers, 
 as stated in the text, thus appears to have met with abundant rec- 
 ognition in this country, save in the case in 105 Ala., where the 
 court's attention was probably not called to these cases, and in the 
 ease in 101 Iowa, where they are expressly distinguished. 
 
 S92 Flecker v. Emporia City Ry. Co., 48 Kan. 577, 30 Pac. 18;. 
 Equitable Remedies, Vol. I — 15
 
 5 125 EQUITABLE KEMEDIES. 226 
 
 troversies that have arisen among the shareholders or 
 directors of a corporation relative to the proper mode 
 of conducting the corporate business, as it may do in 
 case of a similar controversy arising between the mem- 
 bers of an ordinary partnership. Corporations are in 
 a certain sense legislative bodies. They have a legis- 
 lative power when the directors or shareholders are 
 duly convened that is fully adequate to settle all ques- 
 tions affecting their business interests or policy, and 
 they should be left to dispose of all questions of that 
 nature without applying to the courts for relief. A 
 stockholder in a corporation cannot successfully in- 
 voke the power of a chancery court to control its ofifl- 
 cers or board of managers, or to wrest the corporate 
 property from their charge through the agency of a re- 
 ceiver, so long as they neither do nor threaten to do 
 any fraudulent or ultra vires acts, and so long as they 
 keep within the limits of by-laws which have been pre- 
 scribed for their governance."^'^ 
 
 § 125. Receiver on Application of Creditors. — The ques- 
 tion of a general creditor's right to a receiver is prac- 
 tically a question of his right to maintain a creditor's 
 bill, and is, therefore, more appropriately considered 
 in another place.^®^ The defendant corporation may 
 lose its right to make the objection that the plaintiff 
 creditors have not exhausted their legal remedy, by ac- 
 
 Bridgeport Development Co. v. Tritsch, 110 Ala. 274, 20 South. 16; 
 Hill V. Gould, 129 Mo. 106, 30 S. W. 181; Peatman v. Centerville 
 Light etc. Co., 100 Iowa, 245, 69 N. W. 541; Eepublican Mountain 
 Silver Mines v. Brown, 58 Fed. 647, 7 C. C. A. 412, 24 L. E. A. 776; 
 Hunt V. American Grocery Co., 80 Fed. 70. 
 
 293 Eepublican Mountain Silver Mines v. Brown, 58 Fed. 647, 7 
 C. C. A. 412, 24 L. E. A. 776. 
 
 294 See post, vol. 11, chapter on "Creditors' Bills"; Hollins v. 
 Brierfield Coal & Iron Co., 150 U. S, 371, 14 Sup. Ct. 127, 37 L. ed. 
 1113.
 
 227 APPOINTMENT OF EECEIVEBS OF CORPORATIONS. § 125 
 
 quiescence, for a term of several months, in the appoint- 
 ment and possession of a receiver in behalf of general 
 creditors.^^^ The general rule is, of course, that a 
 court of equity will not appoint a receiver of a corpora- 
 tion, upon the application of a creditor without a lien 
 who has not reduced his claim to judgment.^^^ 
 
 295 Brown v. Lake Superior Iron Co., 134 U. S. 530, 10 Sup. Ct. 
 604, 33 L. ed. 1021. 
 
 296 Texas Consol. etc. Assn. v. Storrow, 92 Fed. 5, 34 C. C. A. 182; 
 Leary v. Colombia etc. Nav. Co., 82 Fed. 775; Smith-Dimmick Lum- 
 ber Co. V. Teague, 119 Ala. 385, 24 South. 4; Smith v. Superior 
 Court, 97 Cal. 348, 32 Pac. 322; French Bank Case, 53 Cal. 495; 
 International Trust Co. v. United Coal Co., 27 Colo. 246, 83 Am. 
 St. Rep. 59, 60 Pac. 621; Dodge v. Pyrolusite Manganese Co., 69 Ga. 
 665; Klee v. E. H. Steele Co., 60 Minn. 355, 62 N. W. 399; Mann v. 
 German-American Inv. Co. (Neb.), 97 N. W. 600. See, also, Fal- 
 mouth Nat. Bank v. Cape Cod Ship Canal Co., 166 Mass. 550, 44 N. 
 E. 617. In Nunnally v. Strauss, 94 Va. 255, 26 S. E. 580, however, 
 it was held that a simple contract creditor of an insolvent corpora- 
 tion which has ceased to do business and has been abandoned by 
 its officers may sue on behalf of himself and other creditors for a 
 receiver. "In the case of Fainey v. Bennett, 27 Gratt. 365, this 
 court has very aptly likened an insolvent corporation that has ceased 
 to do business to an insolvent decedent's estate, and has argued 
 with much force that, upon the same principle that a court of 
 equity administers a dead man 's estate under a bill filed by simple 
 contract creditors for that purpose, it should administer the affairs 
 of a corporation that has ceased to do its life work. That was 
 the case of an insolvent banking institution. Its assets remained 
 in the hands of one or more of the officers last elected by the di- 
 rectors, but no one had been appointed by the directors or stock- 
 holders to take charge of its assets and wind up its affairs; and it 
 was held proper, under the circumstances, by analogy to the ad- 
 ministration of a dead man 's estate, at the suit of simple contract 
 creditors who had no lien, for a court of equity to take charge of 
 the affairs of the abandoned corporation, administer its assets, and 
 apply the same for the benefit of its creditors." See, also, Doe v. 
 Northwest Coal & Transportation Co., 64 Fed. 928; Kentucky Racing 
 & Breeding Assn. v, Galbreaith, 25 Ky. Law Rep. 1212, 77 S. W. 
 371 (receiver appointed, "where the assets of an insolvent cor- 
 poration, which a [general] creditor is entitled to have applied in 
 satisfaction of his demands, will probably be lost or fraudulently 
 disposed of by improvident or corrupt officials unless a receiver ia
 
 i 125 EQUITABLE REMEDIES. 228 
 
 It is held in Ohio that a receiver may properly be 
 appointed, by virtue of the general usages of equity, in 
 the equitable action to enforce payment of the statu- 
 tory liability of stockholders,^^^ A receiver is a means 
 of effectuating the remedy of a judgment creditor of 
 a corporation seeking to enforce, in behalf of himself 
 and other creditors, the application of unpaid stock 
 subscriptions to the discharge of the debts of the cor- 
 poration.^^* 
 
 When the rents and profits of a bridge company for 
 a certain period have been sold under execution to a 
 judgment creditor of the company, the court may cause 
 possession of the bridge to be taken by a receiver to col- 
 lect the tolls and pay them into court for the purpose 
 of discharging the judgment.^^^ 
 
 An assignment for the benefit of creditors by a cor- 
 poration after service of process on it in a suit by a 
 creditor for a receiver does not affect the jurisdiction 
 of the court to appoint a receiver.^*^^ 
 
 If fraud on the part of the corporate management is 
 the ground on which relief is asked, the conduct and 
 
 appointed." The text-books relied upon by the court hardly war- 
 rant so broad a statement) ; Barber v. International Co. of Mexico, 
 73 Conn. 587, 48 Atl. 758 (where assets of corporation A were trans- 
 ferred to corporation B, under agreement that B would pay all the 
 liabilities of A, jurisdiction to appoint receiver of A to enforce this 
 agreement for the benefit of A's creditors; two judges dissenting). 
 
 In the well-considered case of Darragh v. H. Wetter Mfg. Co., 49 
 U. S. App. 1, 23 C. C. A. 609, 78 Fed. 7, a suit in the federal court 
 was sustained, by a contract creditor who had not reduced his claim 
 to judgment, under the statutes of Arkansas, for the appointment 
 of a receiver and the sale of the property of an insolvent corporation 
 of that state and the distribution of its assets among its creditors. 
 
 297 Zieverink v. Kemper, 50 Ohio St. 208, 34 N. E. 250. 
 
 288 See Adler v. Milwaukee etc. Mfg. Co., 13 Wis. 57, 62. See, 
 also, Ogilvie v. Knox Ins. Co., 22 How. 380, 16 L. ed. 349. 
 
 299 Covington Drawbridge Co. v. Shepherd, 21 How. 112, 16 L. ed. 
 38. 
 
 •00 Belmont Nail Co. v. Columbia Iron etc. Co., 46 Fed. 8.
 
 E29 APPOINTMENT OF EECEIVEBS OF COBPOKATIONS. § 120 
 
 facts from which the conclusion of fraud is deduced 
 must be averred.^" ^ 
 
 If the case is a proper one for a receiver, the denial 
 by the defendant that the corporation has any property 
 or effects of any kind is no bar to the exercise of the 
 jurisdiction. If the denial in this respect ultimately 
 proves true, the defendant is not injured, and the com- 
 plainant proceeds at the peril of being obliged to pay 
 costs.^°* 
 
 § 126. In Foreclosure of Mortgag-es on Corporate Property. 
 The power of a court of chancery to appoint a receiver 
 pendente lite in foreclosure cases is a part of its in- 
 cidental jurisdiction, not depending upon any statute. 
 This jurisdiction is not affected by the character of the 
 mortgagor, whether an individual or a corporation. It 
 rests upon grounds quite independent of the character 
 of the parties to the instrument, or the nature of the 
 mortgaged property.^"^ Mere insolvency, arising from 
 no proved fault in the management of private corpora- 
 
 801 Fort Payne Furnace Co. v. Fort Payne Coal etc. Co., 96 Ala. 
 472, 38 Am. St. Eep. 109, 11 South. 439. Thus, a creditors' bill 
 which merely avers that the directors of the defendant corporation, 
 acting in pursuance of a vote of the stockholders, had ordered the 
 issue of bonds, secured by a trust deed on all its property, that a 
 portion of those bonds had been issued and disposed of, that the 
 directors afterwards voted to sell the corporate property at a public 
 sale, that the directors then issued a circular letter appealing to 
 the stockholders to purchase the bonds already disposed of, does not 
 present a case for the appointment of a receiver, there being no 
 allegations that any of the directors had an interest in the bonds or 
 in the sale thereof, or that those bonds were not sold for their value 
 and to bona fide purchasers, nor any facts stated which show that 
 the proposed sale was not in strict compliance with the terms of the 
 trust deed: Id. 
 
 302 Tumbull V. Prentiss Lumber Co., 55 Mich. 387, 21 N. W. 375. 
 
 303 United States Trust Co. v. New York, W. S. & B. E. Co., 101 
 N. Y. 478, 5 N. E. 316.
 
 i 126 EQUITABLE REMEDIES. 230 
 
 tions, is not a sufficient ground.^®^ But where the com- 
 plainant set up mortgages of realty and personalty, the 
 insolvency of the corporation being averred, and dis- 
 sensions between the stockholders being alleged, tend- 
 ing to show that the condition of insolvency would 
 continue and the assets of the corporation be exposed 
 to deterioration, and the rights of creditors disre- 
 garded, it was held that the jurisdiction of the court 
 was unquestionable, and that the complainant had es- 
 tablished its right to the appointment of a receiver.^"'^ 
 While it is true, as a general rule, that appointing 
 a receiver is auxiliary to the main purpose of the suit, 
 
 304 Trust & Deposit Co. v. Spartanburg Waterworks Co., 91 Fed. 
 324 (suit for foreclosure by holder of bonds secured by second 
 mortgage). The court further says: "There should be some evi- 
 dence of waste or mismanagement or carelessness or fraud, or extrav- 
 agance, wantonness, or collusion; some ground to apprehend that 
 the property will suffer deterioration or serious injury; something to 
 show that there is danger of probable loss, or that some rights may 
 be substantially impaired." In Stewart v. Chesapeake etc. Canal 
 Co., 5 Fed. 149, 4 Hughes, 47, the holder of bonds secured by a 
 first mortgage of the tolls and revenue of a canal applied for a re- 
 ceiver, alleging that the default in payment of the bonds was due 
 to wasteful and corrupt management of the corporation. The mort- 
 gage provided that the corporation should remain in possession un- 
 less it should be shoTvn that default was from other causes than 
 failure cf business. It was held that to justify a receiver to man- 
 age for an indefinite time an enterprise attended with such risk and 
 difficulty, it must be shown beyond question that the default was due 
 to mismanagement, or that the safety of the property was threatened 
 by corporate mismanagement, and that a receivership probably 
 would result in effectual relief. See, also. City of Cape May v. 
 Cape May etc. Co., 59 N. J. Eq. 59, 49 Atl. 973. 
 
 305 De La Vergne etc. Co. v. Palmetto Brewing etc. Co., 72 Fed. 
 579, citing Kountze v. Hotel Co., 107 U. S. 378, 2 Sup. Ct. 911, 27 
 li ed. 609. For another case where dissensions between the officers 
 of a company, greatly embarrassed by its debts, the value of whose 
 property, franchises, etc., largely depended upon the continuation 
 of its business, rendered a receiver almost a necessity in an action 
 to foreclose a chattel mortgage of the company's property, see State 
 Journal Co. v. Commonwealth Co., 43 Kan. 93, 22 Pac. 982.
 
 231 APPOINTMENT OF RECEIVERS OF CORPORATIONS. § 127 
 
 and that no suit can be brought until the debt is due, 
 it is held that there is no reason for limiting to rail- 
 road companies the doctrine that "where default is im- 
 minent and manifestly inevitable, though none has 
 taken place, a receiver of a railroad company may be 
 appointed, on the application of a mortgage bond- 
 holder, in order to prevent the breaking up and de- 
 struction of its business, and to protect the property 
 against attachments and executions in favor of other 
 creditors."^"* 
 
 A formal mortgage is not essential in order to give 
 holders of bonds which are a lien on the property of 
 the corporation standing to apply for a receivership*, 
 as in a case where the bonds of a canal company pledged 
 the effects, real and personal, of the company, and con- 
 tained recitals that they should have preference over 
 all debts to be thereafter contracted, and that in default 
 of the payment of interest the holder of the bonds might 
 enter into possession of the tolls, water rates, and other 
 incomes of the company, and might apply for the ap- 
 pointment of a receiver.^*^' 
 
 § 127. Receivers Authorized by Statutes. — The statutes 
 of the states that have legislated on the subject of re- 
 ceivers of corporations vary so greatly, not only in de- 
 
 806 Thompson v. Natchez Water etc. Co., 68 Miss. 423, 9 South. 
 821. 
 
 807 White Water Valley Canal Co. v. Vallette, 21 How. 414, 16 L. 
 ed. 154. 
 
 As to the appointment of receivers and managers on the applica- 
 tion of debenture holders, under the liberal terms of the English 
 Judicature Act, see In re Pound, 42 Ch. D. 402; In re Joshua 
 Stubbs, Limited, [1891] 1 Ch. 187, 475; McMahon v. West Kent 
 Iron Works Co., [1891] 2 Ch. 148; Strong v. Carlyle Press, [1893] 1 
 Ch. 268; British Linen Co. v. South American & Mexican Co., [1894] 
 1 Ch. 108; Bartlett v. West Metropolitan Tramways Co., [1893] 3 
 Ch. 437; Marshall v. South Staffordshire Tramways Co., [1895] 2 Ch. 
 36; and caaee cited, ante, § 92, note 134.
 
 §127 EQUITABLE REMEDIES. 232 
 
 tails, but in their whole scope and purpose, that no at- 
 tempt will here be made to classify the many and im- 
 portant cases interpreting this mass of legislation. Per- 
 haps the commonest provision is that allowing the court 
 to appoint a receiver "in the cases where a corporation 
 has been dissolved, or is insolvent, or in imminent dan- 
 ger of insolvency, or has forfeited its corporate rights" ; 
 but the courts are by no means unanimous in deciding 
 upon the effect to be given to this statute.^''^ The re- 
 marks of a very able judge in description of this legis- 
 lation may be of interest: "In the absence of any stat- 
 ute regulating the matter, a court of equity would have 
 the undoubted right, in a proper proceeding instituted 
 by a creditor or stockholder, to appoint a receiver to 
 administer the property [of a corporation that has 
 ceased to exist]. But in many of the states, statutes 
 have been passed expressly providing for the appoint- 
 ment of receivers, or trustees exercising the same func- 
 tions, though sometimes called by other names. In all 
 cases it is made their duty to collect the assets, pay 
 the debts, and distribute the surplus pro rata to the 
 stockholders. As this is precisely what a court of 
 equity would have done in the absence of a statute, it 
 is to be inferred that the motive of such legislation has 
 been to accomplish some other object, — some object, that 
 is to say, for which express legislation was necessary. 
 This inference is fully justified and amply borne out 
 by reference to the different statutes. They seem to 
 have been enacted with the object, in some instances, 
 of abrogating the old law of forfeiture, and reversion; 
 in others, of committing the administration to other 
 courts than courts of equity; in others, to provide gen- 
 eral and uniform rules of procedure, as to giving notice 
 
 808 Compare the California cases cited below with those from 
 Idaho, Indiana and Texas,
 
 233 APPOINTMENT OF RECEIVERS OF CORPORATIONS. { 127 
 
 to creditors, etc., to take the place of rules of court and 
 specific orders to be made by the chancellor in each 
 particular case ; in others, to keep the matter out of the 
 <?ourts altogether, as by allowing the dissolved corpo- 
 ration to continue its existence for a term for purposes 
 of liquidation, but for no other purpose. The whole 
 mass of this legislation seems to be pervaded by the 
 one idea of simplifying, expediting, and cheapening the 
 means of accomplishing the one object of transferring- 
 to the stockholders of a defunct corporation their full 
 share of its surplus assets. There is, from beginning 
 to end, no suggestion of added penalties or punishment 
 after death."309 
 
 The more important of these statutes, and the cases 
 interpreting them that appear to be of most general in- 
 terest, are given at some length in the note.^^** 
 
 309 Beatty, C. J., in Havemeyer v. Superior Court, 84 Cal. 327, 
 363, 18 Am. St. Rep. 192, 24 Pac. 121, 10 L. R. A. 627. 
 
 310 Alabama.— The statute relating to proceedings for the volun- 
 tary dissolution of corporations provides for the appointment of a 
 receiver upon a decree of dissolution: Code 1886, § 1686; see 2 
 Stimson's Am, St. Law, §§ 8332, 8335. This statute has no opera- 
 tion upon a corporation dissolved by adversary proceeding, and 
 furnishes no guide for the interpretation of statutory provisions 
 relating thereto. § 1691 (Code 1896, § 1299) provides that trustees 
 shall settle the affairs of a dissolved corporation unless other per- 
 sons are appointed by a court of competent authority. This section 
 neither enlarges nor restricts the inherent power of the courts to ap- 
 point a receiver for a corporation which has been dissolved by quo 
 warranto proceedings, except so far as it renders such appointment, 
 in most cases, unnecessary: Weatherly v. Capital City Water Co., 
 115 Ala. 156, 22 South. 140. "The manifest general purpose of the 
 legislature was to commit the affairs and properties of a corporation 
 so dissolved to the persons who were its managers at the time of 
 the dissolution; but the law-makers recognized that there might be 
 special circumstances or peculiar exigencies in a given case which 
 would breed a necessity to take the corporate affairs and property 
 out of the hands of such managers, and, to exclude any idea that the 
 statutory designation of trustees should have the effect of ousting 
 the ordinary jurisdiction of courts of chancery to appoint receivers
 
 I 12T EQUITABLE REMEDIES. 234 
 
 upon such circumstances on exigencies being made to appear, they 
 expressly saved this jurisdiction, though doubtless such reservation 
 
 was in fact unnecessary The rule is created by the act. The 
 
 exception exists apart from the act, and is merely recognized by it. 
 This mere recognition in and of itself neither adds to nor takes 
 from the powers of the courts. It neither confers upon them au- 
 thority which they had not before, nor takes from them authority 
 which they had before, to appoint receivers, except only that the 
 affirmative provision of the act, committing the estate of the cor- 
 poration to those who were its managers at the time of dissolution, 
 as trustees for its creditors and bondholders, emasculates the mere 
 fact of dissolution, so far as it might otherwise have been considered 
 as a ground for such intervention of the courts, since the statutory 
 creation of these trustees of the assets and concerns of the defunct 
 corporation supplies the means of settling its affairs, which, in the 
 absence of a statute, could probably be furnished only through the 
 appointment of a receiver. So that under the statute a bill pray- 
 ing the appointment of a receiver must aver facts which, upon gen- 
 eral principles of equity jurisprudence and procedure, would call 
 into exercise the power of the court to the end sought. A state of 
 things must be alleged which imports a necessity for the appoint- 
 ment of a receiver The facts alleged must be of a character 
 
 to show that the trustees are incompetent or unfaithful, or are mis- 
 managing the property to the injury of the complainant, or are 
 without power and authority to subserve some peculiar interest or 
 right of the party complaining, and that he is being injured thereby, 
 or other like situation"; citing Havemeyer v. Superior Court, 84 
 Cal, 327, 18 Am. St. Rep. 192, 24 Pac. 121, 10 L. R. A. 627; New 
 Foundland R. R. Construction Co. v. Schack, 40 N. J. Eq. 222, 1 
 Atl. 23. See, also, Anderson v. Buckley, 126 Ala. 623, 28 South. 
 729; s. c, on second appeal, Buckley v. Anderson, 137 Ala. 325, 34 
 South. 238. 
 
 California. — The provisions of the Code of Civil Procedure relating 
 to receivers of corporations are: 
 
 § 564, "A receiver may be appointed by the court in which an 
 action is pending, or by the judge thereof: .... 5. In the cases 
 where a corporation has been dissolved, or is insolvent, or in im- 
 minent danger of insolvency, or has forfeited its corporate rights." 
 § 565. (Amendment of 1880): "Upon the dissolution of any cor- 
 poration, the superior court of the county in which the corporation 
 carries on its business or has its principal place of business, on ap- 
 plication of any creditor of the corporation, or of any stockholder 
 or member thereof, may appoint one or more persons to be receivers 
 or trustees of the corporation, to take charge of the estate and effects 
 thereof, and to collect the debts and property due and belonging to 
 the corporation, and to pay the outstanding debts thereof, and to
 
 235 APPOINTMENT OF KECEIVERS OF CORPORATIONS. § 127 
 
 divide the moneys and other property that shall remain over among 
 the stockholders or members." 
 
 In the "French Bank Case" (La Societe Franeaise etc. v. Dis- 
 trict Court), 53 Cal. 495, it was held that subd. 5 of § 564, supra^ 
 did not warrant the appointment of a receiver at the suit of a stock- 
 holder or creditor for the purpose of winding up the affairs of an 
 insolvent corporation; that this subdivision created no cause of ac- 
 tion for such a purpose. It was pointed out that the New York 
 statute from which this provision was copied (N. Y. Code of 
 
 Procedure, § 244) read: "A receiver may be appointed (4) In 
 
 the cases provided in this code and by special statutes, where a cor- 
 poration has been dissolved, or is insolvent," etc.; that such pro- 
 vision existed in the code and statutes of New York, while, except 
 in § 564, the codes and statutes of California were silent on 
 the subject of the appointment of receivers. The arguments of the 
 eminent counsel engaged in this case are of much interest. See, 
 also, Fischer v. Superior Court, 110 Cal. 129, 141, 42 Pac. 561. 
 
 The opinion of Beatty, C. J., in Havemeyer v. Superior Court, 84 
 Cal. 327, 342-389, 18 Am. St. Rep. 192, 24 Pac. 121, 10 L. R. A, 627, 
 is by far the longest and most elaborate to be found in any report 
 on the subject of the appointment of receivers of corporations. The 
 proceeding was an application for a writ of prohibition to a court 
 which had appointed a receiver of the property of a corporation in 
 a quo warranto proceeding upon judgment of forfeiture of its cor- 
 porate charter. The following abstract of the opinion, so far as it 
 deals with this subject, follows the order of discussion in the opin- 
 ion instead of the reporter's syllabus. After conceding the inherent 
 power of a court of equity, in the absence of any statute regulating 
 the matter, in a proper proceeding instituted by a creditor or a 
 etdckholder, to appoint a receiver to administer the property of a 
 defunct corporation (p. 362), § 400 of the Civil Code (the usual pro- 
 vision making the directors of the dissolved corporation managers 
 of its affairs and trustees for the creditors and stockholders, with 
 full power of settlement; see ante, § 123) is declared to establish 
 the general policy of the state with reference to winding up the 
 affairs of a corporation in all cases of dissolution, whether volun- 
 tary or involuntary; and the wisdom of this policy is earnestly de- 
 fended. (P. 365:) "Under our codes, on the- contrary, the rule is 
 not to appoint a receiver, but to leave the whole matter of liquidation 
 and distribution to the exclusive control of the directors of the 
 corporation in office at the date of dissolution. The appointment of 
 a receiver is the exception, not the rule, and is not to be made un- 
 less some party interested, either a creditor or a stockholder, can 
 show that for the protection of his rights the appointment of a 
 receiver and the administration of the assets under the control and 
 superintendence of a court of equity is necessary." In reply to the
 
 § 127 EQUITABLE REMEDIES. 236 
 
 suggestion of absurdity in thus interpreting the legislation so as to 
 leave to directors convicted of violating their duty to the state the 
 trust of administering and distributing the assets of the dissolved 
 corporation, the court uses this vigorous language (p. 3G9): "We con- 
 fess there does not appear to us to be any absurdity in this supposi- 
 tion. Because a corporation has violated its duty to the public, it 
 does not follow that its members cannot be trusted to look out for 
 their own interests. Quite the contrary; for it is usually a too ex- 
 clusive regard for their own interests that constitutes their derelic- 
 tion to the public. As to creditors, their interests must in most 
 cases be opposed to the appointment of a receiver. They will be 
 paid more quickly and more certainly without a receiver than with 
 one. If there is any one thing more certain than another, it is 
 that the appointment of a receiver implies a material diminution of 
 the fund out of which creditors are to be paid. For, in the first 
 place, the fees of the receiver, his counsel, and assistants, are to 
 be subtracted. Then the estate must, in many cases, as it has been 
 in this case, be condemned to unproductive idleness and disuse, 
 and exposed to danger of loss and dilapidation from rust and decay 
 during the long and tedious progress of the legal proceedings that 
 are necessarily entailed. And all this time the creditors must wait 
 and look on, while the fund upon which they rely for payment is 
 being depleted by the processes above referred to. On the other 
 hand, supposing the affairs of the defunct corporation to be under 
 the control of its late directors as trustees for its creditors and 
 stockholders, the creditors have nothing to do but present their de- 
 mands and receive payment in the ordinary course of business, or 
 if payment is refused or delayed, they may proceed to enforce their 
 demands. How much better this is for the creditors than to have 
 to wait upon the motions of a receiver and the court, under whose 
 order he acts, everyone knows who has had any experience of the 
 two methods of settling the business of a partnership or a corpora- 
 tion. And then it is, as we have seen, always at the option of a 
 creditor or a stockholder to have a receiver, if they can allege facts 
 showing that a receiver is necessary." The contention that the peo- 
 ple of the state have an interest in the appointment of a receiver, 
 whenever the charter of a corporation has been forfeited, was met 
 (p. 374) by a reference to the express enumeration, in § 565 (supra), 
 of creditors and stockholders as the persons who are entitled to apply 
 for a receiver in such circumstances, and by the argument (pp. 375 
 et seq.) that a receivership is not designed or prescribed by the legis- 
 lature as a penalty or part of the punishment to be visited upon the 
 stockholders of the corporation in a proceeding in quo warranto; but 
 that the punishment is limited to the forfeiture of the charter, and 
 the fine which the court may in its discretion impose; and that the 
 court cannot further affect the corporate property by its judgment,
 
 237 APPOINTMENT OF EECEIVEES OF CORPORATIONS. § 127 
 
 or confiscate or take it away from the stockholders. (P. 377:) "If 
 it is really true that our laws, as they are written, provide no ade- 
 quate punishment for corporate transgressions, let the legislature 
 take the matter in hand. It is no part of the function of a court 
 to supply the want of penal legislation." (P. 379:) "What is for- 
 feited to the state, and all that is forfeited, is the charter — the right 
 to be a corporation; and this is resumed solely upon the ground 
 that the condition upon which it was granted has been violated. 
 The doctrine is, that corporate charters are granted upon the implied 
 condition that the privilege conferred will be used for the advan- 
 tage, or at least not to the disadvantage, of the state. If this con- 
 dition is broken, the charter which the state has given is taken 
 back by the state; but the property which the corporation has ac- 
 quired with its own means goes to those who have paid for it, and 
 they have the right to deal with it just as others similarly situated 
 may deal with their property. Whatever the law prevents other 
 natural persons from doing they are prevented from doing, — nothing 
 more." The conclusion is reached (p. 380) that the rendition of the 
 judgment authorized by the statute in quo warranto proceedings 
 (viz., exclusion from the franchises, and a fine) ends the proceedings, 
 and that no receiver of the corporate property can be appointed un- 
 less a new and distinct proceeding is commenced by a creditor or 
 stockholder of the corporation, under § 565 of the Code of Civil 
 Procedure (supra). 
 
 The Havemeyer case has been followed in State Investment and 
 Insurance Co. v. Superior Court, 101 Cal. 135, 35 Pac. 549, holding 
 (p. 148) that "the power of a court to appoint any persons in the 
 place of those who are directors of the corporation at the time of 
 its dissolution is given in § 565 of the Code of Civil Procedure, and 
 the authority given therein is the measure of its power"; in Yore 
 v. Superior Court, 108 Cal. 431, 41 Pac. 477, holding that the "dis- 
 solution" which is a prerequisite to the appointment means the 
 exclusion of the corporation from the franchise of being a corpora- 
 tion, not merely from the franchise of making certain contracts; 
 and in People v. Union Building & Loan Assn. (Cal.), 58 Pac. 822, 
 holding that a receiver should not be appointed in the absence of 
 any fraud or mismanagement on the part of the directors or of- 
 ficers of the corporation, or any want of competency on their part 
 to liquidate and settle up its affairs economically and in the interest 
 of its creditors and stockholders. See, also, Murray v. American 
 Surety Co., ,70 Fed. 341, 17 C. C. A. 138, affirming 59 Fed. 345, and 
 61 Fed. 273. 
 
 Georgia.— For cases construing the "Insolvent Traders' Act," 
 (Code, §§ 3149a et seq.J, whereby the assets of an insolvent corpora- 
 tion are subject to seizure under a creditors' bill, see Hale-Berry 
 Co. V. Diamond State Iron Co., 94 Ga. 61, 22 S. E. 217; National Bank
 
 S 127 EQUITABLE REMEDIES. 238 
 
 of Augusta V. Richmond Factory, 91 Ga. 2S1, 18 S. E. 160 (corpora- 
 tion need not be a "trader"). 
 
 Idaho.— In Security Savings & Trust Co. v. Piper, 40 Pac. 144, it 
 •was held that a receiver may be appointed pending proceedings for 
 the voluntary dissolution of a corporation, by virtue of a provision 
 identical with § 564, subd. 5, of the California Code of Civil Pro- 
 cedure, supra. The French Bank Case, 53 Cal. 550, was distin- 
 guished by the fact that there the suit was by a private individual 
 against the corporation, while in the case at hand the action was 
 by the officers of the corporation, duly authorized by the stock- 
 holders. In Gibbs v. Morgan (Idaho), 72 Pac. 733, it was distinctly 
 held that this code provision was not intended as an exhaustive 
 enumeration of the cases in which a receiver of a corporation might 
 be appointed. 
 
 Illinois. — Rev. Stats. 1893, c. 32, § 25: "If any corporation or its 
 authorized agents shall do, or refrain from doing, any act which 
 shall subject it to a forfeiture of its charter or corporate powers, 
 or shall allow any execution or decree of any court of record, for 
 a payment of money, after demand made by the officer, to be re- 
 turned 'No property found,' or to remain unsatisfied for not less 
 than ten days after such demand, or shall dissolve or cease doing 
 business, leaving debts unpaid, suits in equity may be brought 
 against all persons who were stockholders at the time, or liable in 
 any way, for the debts of the corporation, by joining the corpora- 
 tion in such suits; and each stockholder may be required to pay his 
 pro rata share of such debts or liabilities to the extent of the unpaid 
 portion of his stock, after exhausting the assets of such corporation. 
 And if any stockholder shall not have property enough to satisfy his 
 portion of such debts or liabilities, then the amount shall be divided 
 equally among all the remaining solvent stockholders. And courts 
 of equity shall have full power, on good cause shown, to dissolve or 
 close up the business of any corporation, to appoint a receiver 
 thereof who shall have authority, by the name of the receiver of 
 such corporation (giving the name), to sue in all courts and do all 
 things necessary to closing up its affairs, as commanded by the de- 
 cree of such court." It is held that the "good cause" which must 
 be shown to warrant the appointment of a receiver and the dissolu- 
 tion of the corporation means some one or more of the causes men- 
 tioned in the first sentence: People v. Weigley, 155 111. 491, 40 N. 
 E. 300; Wheeler v. Steel Co., 143 111. 197, 32 N. E. 42^0, 17 L. R. 
 A. 818; Hunt v. Skating Rink Co., 143 111. 118, 32 N. E* 525. "To 
 justify the appointment of a receiver upon a bill filed under this 
 section, something more is necessary than a mere allegation that it 
 has 'ceased doing business.' It must be shown that such cessation 
 has been for such time that the court may infer more than a tern-
 
 239 APPOINTMENT OF EECEIVEES OF CORPORATIONS. § 127 
 
 porary suspension; or facts must be set forth from which it appears 
 that the suspension is more than an interruption of its usual course 
 by reason of some emergency": Brabrook Tailoring Co. v. Beld- 
 ing Bros., 40 111. App. 326. 
 
 Indiana.— In § 1236, Rev. Stats. 1894 (§ 1222, Rev. Stats. 1881), 
 clause 3, it is provided that a receiver may be appointed where the 
 property in controversy is in danger of being "materially injured"; 
 in clause 5, where a corporation "has been dissolved, or is insolvent, 
 or in imminent danger of insolvency, or has forfeited its corporate 
 rights"; and in clause 7, when, in the discretion of the court or the 
 judge in vacation, "it may be necessary to secure ample justice to 
 the parties." Goshen Woolen Mills Co. v. City Nat. Bank, 150 Ind. 
 279, 49 N. E. 154. It is held in this case that a receiver may be 
 appointed on the application of a creditor where the corporation 
 has assigned property for the benefit of certain creditors, although 
 no fraud is shown in such assignment, when the complaint contains 
 allegations as to material injury to the property, and as to the in- 
 solvency of the corporation and the want of business capacity and 
 financial responsibility on the part of those left in charge of its 
 affairs by the nominal trustee. In Supreme Sitting of the Order of 
 Iron Hall v. Baker, 134 Ind. 293, 33 N. E. 1128, 20 L. R. A. 210, it 
 was held that under clause 5, supra, the court had jurisdiction to 
 appoint a receiver of a corporation alleged to be insolvent in a suit 
 to secure an accounting of the officers, and the application of the 
 funds to the proper objects of the corporation. A further statute 
 (Rev. Stats. 1881, § 3012; Rev. Stats. 1894, § 3435) authorizes, on 
 the application of any creditor or stockholder, the appointment of a 
 receiver for a corporation whose charter has expired within the 
 three years thereafter allowed by statute for the winding up of its 
 affairs. This statute, it is held, does not require the appointment 
 to be made before the expiration of the three years, if the applica- 
 tion is made within the three years: Lime City Bldg., Loan & Sav. 
 Assn. v. Black, 136 Ind. 544, 35 N. E. 829; Hatfield v. Cummings, 140 
 Ind. 547, 40 N. E. 53. 
 
 Iowa.— The Code, § 2903, provides: "On the petition of either 
 party to a civil action or proceeding, wherein he shows that he has 
 a probable right to or interest in any property, which is the subject 
 of the controversy, and that such property or its rents or profits 
 are in danger of being lost or materially injured or impaired, .... 
 the court, or in vacation, the judge thereof, if satisfied that the 
 interests of one or both parties will be thereby promoted, and the 
 substantial rights of neither unduly injured, may appoint a re- 
 ceiver to take charge of, and control such property under its direc- 
 tion during the pendency of the action." In Dickerson v. Cass 
 County Bank, 95 Iowa, 392, 64 N. W. 395, it was held that under
 
 § 127 EQUITABLE REMEDIES. 240 
 
 this section the court has power to appoint a receiver of a state 
 banking corporation on the application of a stockholder. His stat- 
 utory liability to the creditors constitutes a "probable right to or 
 interest in" the property, if his petition shows that there will be no 
 surplus for distribution to the stockholders; and a showing that 
 the bank was insolvent and that those in charge of it were con- 
 tinuing the business at a loss, and had allowed the assets to become 
 of such a character, and so scattered, that they could not readily 
 be realized on without great sacrifice, supplies the remaining ele- 
 ments required by this section. Statutes providing for ousting cor- 
 porations from their franchises and winding up their affairs do not 
 exclude any rights given to private individuals under this general 
 statute. 
 
 Louisiana. — By act of 1898, No. 159, § 1, par. 2, the "civil district 
 court of the parish of Orleans is empowered to appoint receivers 
 to take charge of the property and business of corporations .... 
 at the instance of any stockholder or creditor when the directors or 
 other officers of the corporation are jeopardizing the rights of stock- 
 holders or creditors by grossly mismanaging the business, or by 
 committing acts ultra vires, or by wasting, misusing, or misapplying 
 the property or funds of the corporation." For facts requiring the 
 appointment of a receiver at the instance of stockholders under this 
 statute, see Sincer v. Alverson, 51 La. Ann. 951, 25 South. 650; for 
 the meaning of "grossly mismanaging," see North American L. 
 Ss T. Co. V. Watkins, 109 Fed. 101, 48 C. C. A. 254. 
 
 Michigan — How. Stats., c. 281, § 6, provides: "Whenever 
 judgment at law or decree in chancery shall be obtained against any 
 corporation incorporated under the laws of this state, and an execu- 
 tion issued thereon shall have been returned unsatisfied, in part or 
 in whole, upon the petition of the person obtaining such judgment 
 or decree, or his representatives, the circuit court within the proper 
 county may sequestrate the stock, property, things in action, or 
 effects of such corporation, and may appoint a receiver of the same." 
 See this section applied in Turnbull v. Prentiss Lumber Co., 55 
 Mich. 387, 21 N. W. 375. 
 
 Minnesota. — Gen. Stats., c. 76, § 9, gives judgment creditors the 
 right to the appointment of a receiver of the corporate property 
 and effects in aid of their judgments after execution returned un- 
 satisfied. It is held that the return of the execution unsatisfied by 
 the sheriff is conclusive, so long as it remains of record in force, as 
 respects the judgment creditor's right to a receiver, and that the 
 court will not entertain inquiries as to the diligence of the ofiicer 
 in endeavoring to find property upon which to levy. If there is 
 any good ground for setting aside the return of the ofiicer, because 
 of its falsity, the defendant in execution should apply directly to the
 
 £41 APPOINTMENT OF EECEIVERS OF CORPORATIONS. § 127 
 
 court on motion. See, further, as to the necessity of exhausting the 
 legal remedies of the creditor, Klee v. E. H. Steele Co., 60 Minn. 
 S55, 62 N. W. 399. A receivership in a suit to foreclose a mortgage 
 on property of a corporation will not prevent another receivership, 
 under this same chapter, to sequestrate all the property of the cor- 
 poration for the benefit of all its creditors. "The powers of the 
 receivers in the two cases are entirely different. There are various 
 classes of property that can be reached by a receiver under chapter 
 76 which could not be reached by a receiver appointed in a fore- 
 closure suit. The former has substantially all the powers and 
 functions of an assignee in bankruptcy": St. Louis Car Co. v. Still- 
 water St. Ry. Co., 53 Minn. 129, 54 N. W. 1064. And where a cred- 
 itor has commenced an action under this chapter, an assignment by 
 the corporation under the insolvent law will not defeat or impair 
 Ms right to a receivership: State v. Bank of New England, 55 
 Minn. 139, 56 N. W. 575; but where, at the time of commencing 
 such action an assignee in insolvency, previously appointed, has for 
 some time been actively engaged in collecting the assets of the cor- 
 poration and converting them into cash, the plaintiff creditor is not 
 entitled, as a matter of absolute right, to have a receiver appointed: 
 Walther v. Seven Corners Bank, 58 Minn, 434, 59 N. W. 1077; In- 
 ternational Trust Co. v. American Loan etc. Co., 62 Minn. 501, 65 
 N. W. 78, 632. As to what constitutes "insolvency" of a building 
 and loan association under this chapter, see Sjoberg v. Security Sav- 
 ings and Loan Assn., 73 Minn. 203, 72 Am. St, Rep. 616, 75 N. W. 
 1116. 
 
 Neiw Jersey. — Cases under the New Jersey statute conferring power 
 «Mi the courts of equity to dissolve and wind up an insolvent corpora- 
 tion are of more than local interest. The power "was conferred by 
 a statute passed in 1829 [Act of February 16th], and the language 
 by which it was conferred has remained unchanged from that time 
 to the present [1892], Elmer, Dig., p. 32, §§' 11, 13; Revision, p. 
 189, §§ 70, 72, This statute empowers the chancellor, on the ap- 
 plication of a creditor or stockholder, alleging that the corporation 
 in which he is interested has become insolvent, to proceed in a 
 summary way to inquire into the truth of such allegation, and if, 
 upon such inquiry, it shall be made to appear that the corporation 
 has become insolvent, and shall not be about to resume its business 
 in a short time, with safety to the public and advantage to the 
 stockholders, he may enjoin it from the further exercise of its fran- 
 chises, and also from the further transaction of business; and he 
 may also, at the same time, or at any subsequent time during the 
 continuance of the injunction, if, in his judgment, the circumstances 
 of the case and the ends of justice require, appoint a receiver to 
 dispose of its assets and distribute the proceeds": Atlantic Trust 
 Co. V. Consolidated Electric Storage Co., 49 N. J. Eq. 402, 23 AtL 
 Equitable Remedies, Vol. 1—16
 
 Ji 127 EQUITABLE REMEDIES. 242 
 
 934. "The ordering of the statutory injunction which places the 
 corporation under disabilities with reference to the exercise of its 
 franchises, is the jurisdictional fact — the condition precedent — which 
 must occur before any statutory receiver can be appointed": Gal- 
 lagher V. Asphalt Co. of America (N. J. Eq.), 58 Atl. 403. 
 
 It was held in Parsons v. Monroe Manufacturing Co., 4 N. J. Eq. 
 187, 206, that "the foundation of this whole proceeding [under 
 the act of February 16, 1829] must rest on the question of insol- 
 vency; for unless that is satisfactorily made out, the court has no 
 jurisdiction; and when made out, there still resides, and must reside 
 in the chancellor, a discretion as to the ordering of the injunction 
 and the appointment of receivers, to be governed by the facts of 
 the case." The court is authorized by this act to appoint receivers 
 at the time of declaring the company insolvent and ordering an in- 
 junction, "if the circumstances of the case and the ends of justice 
 require it." It does not follow, therefore, that because an injunc- 
 tion is granted, receivers should be appointed: Oakley v. Paterson 
 Bank, 2 N. J. Eq. 178; Eawnsley v. Trenton Mutual Life Ins. Co., 
 9 N. J. Eq. 347, 350; Nichols v. Perry Patent Arm Co., 11 N. J. Eq. 
 126; Newfoundland R. R. Construction Co. v. Sehack, 40 N. J. Eq. 
 222, 1 Atl. 23; and the appointment will not be made where the 
 protection of the public and the interest of the creditors and the 
 stockholders does not require it, where, on the contrary, no one who 
 is a stranger to the extensive business of the company can advan- 
 tageously wind up its concerns and where the charges of fraud 
 against the directors are not sustained; in such a case the manage- 
 ment will be left in the hands of the directors, under the immediate 
 control and direction of the court: Eawnsley v. Trenton Mutual 
 Life Insurance Co. Still, as a general rule, where there is a decree 
 of insolvency, receivers will be appointed; and where it appears 
 that after the insolvency of the company was beyond dispute, and 
 well known to all the directors, unlawful sales of all the company's 
 property were made to various directors, no discretion is left to the 
 court, and the appointment is a matter of duty: Nichols v. Perry 
 Patent Arm Co., 11 N. J. Eq. 126. Where the directors of the in- 
 solvent corporation are winding up its affairs, where they are men 
 of property and of experience in business, and there is every rea- 
 son to believe that their closing of the enterprise will be more ad- 
 vantageous to the stockholders and creditors than the management 
 of a stranger in this respect would be likely to prove, and all the 
 creditors and stockholders of the company, with the single excep- 
 tion of the petitioner, are satisfied with the management, an order 
 appointing a receiver should be reversed: City Pottery Co. v. Yates, 
 37 N. J. Eq. 543. 
 
 On the question of the necessity of showing insolvency, the opin- 
 ion of Van Fleet, V, C, in Atlantic Trust Co. v. Consolidated Electric
 
 243 APPOINTMENT OF EECEIVERS OF CORPORATIONS. § 127 
 
 Storage Co., 49 N. J. Eq. 402, 23 Atl. 934, is valuable. "The statute 
 makes insolvency the jurisdictional fact. The court can do nothing — 
 neither issue an injunction nor appoint a receiver — until insolvency 
 is first established [citing Oakley v. Bank, supra; Parsons v. Manu- 
 facturing Co., supra; Brendred v. Machine Co., 4 N. J. Eq. 294, 305; 
 and Goodheart v. Mining Co., 8 N. J. Eq. 73, 77]. And Mr. Justico 
 Depue, in pronouncing the opinion of the court of errors and appeal* 
 in Construction Co. v. Schack, 40 N. J. Eq. 222, 226, 1 Atl. 23, de- 
 clared, in describing what averments a bill in such a case must con- 
 tain, that it was not sufficient that the bill should merely allega 
 that the corporation had become insolvent and had suspended its 
 business for want of funds to carry on the same, but that the facta 
 and circumstances on which the complainant relies to prove insol- 
 vency must be set out The proof in support of a jurisdictional 
 
 fact must always be clear and convincing, for the court derives On 
 power from the fact; and hence, until the fact is shown to exist, 
 
 it has no power. To doubt in such a case is to deny Nor ii 
 
 it the duty of the court to use its power in all cases where insol- 
 vency is shown. Something more is required. The prerequisite* 
 prescribed by the statute are that it shall be made to appear that 
 the corporation has become insolvent, and also that it will not b« 
 able to resume its business in a short time with safety to the public 
 and advantage to the stockholders. The power is only to be used 
 when the ends of justice require its exercise. The court should 
 strive in such cases to foster and preserve, rather than to strangla 
 
 or destroy The principle which I think should control th« 
 
 court in the exercise of this power is this: never to appoint a re- 
 ceiver unless the proof of insolvency is clear and satisfactory, and 
 unless it also appears that there is no reasonable prospect that th« 
 corporation, if let alone, will soon be placed, by the efforts of its 
 managers, in a condition of solvency. To illustrate: Where the cor- 
 poration attacked is shown to be insolvent, but it also appears that 
 its managers are honest and capable, and that they are striving t* 
 the best of their ability, with a fair prospect of success, to relieva 
 the corporation from its embarrassment, and to put it in a condition 
 where it may prosecute its business successfully, and the property 
 of the corporation is free from judgment or other lien under whick 
 it may be sold speedily, at a sacrifice, the court should not inter- 
 fere." See, also, to the same effect, Ft. Wayne Electric Corp. t. 
 Franklin Electric Light Co. (N. J.), 40 Atl. 441, 57 N. J. Eq. 16, 
 41 Atl. 217. The mere suspension of business by the corporation, 
 even though it does not appear that it is about to resume in a short 
 time, does not afford sufficient warrant for the court to assume ju- 
 risdiction, when it is not clearly established that the corporation im 
 insolvent: Cook v. East Trenton Pottery Co., 53 N. J. Eq. 29, 3# 
 Atl. 534. On the other hand, while the statute predicates some i»-
 
 S 127 EQUITABLE REMEDIES. 244 
 
 terruption of the insolvent's business as an element of insolvency, 
 it does not contemplate an entire suspension of all its workings. An 
 insolvent corporation, therefore, is within the scope of the statute, 
 although its business is continuing, and receipts therefore coming 
 into the treasury: Ft. Wayne El, Corp. v. Franklin Electric Light 
 Co., 57 N. J. Eq. 16, 41 Atl. 217; aflarmed, 58 N. J. Eq. 579, 43 AtL 
 1098. 
 
 The statute authorizing the appointment at suit of any creditor 
 or stockholder when the corporation is insolvent, creates a new equi- 
 table right which will be enforced by the federal courts: United 
 States Shipbuilding Co. v. Conklin, 126 Fed. 132, 60 C. C. A. 680. 
 
 Where a receiver is sought for a corporation that has been dis- 
 solved by proclamation of the governor, under § 56 of the Corpora- 
 tion Act of 1896, the discretionary power of the chancellor is in- 
 voked, and should be exercised either to continue the directors as 
 trustees to settle the corporate affairs under said section, or to ap- 
 point a receiver for that purpose. Discretion to appoint a receiver 
 should not be disclaimed because of failure of proof of breaches of 
 trust by the directors, since the governor's proclamation; their un- 
 fitness to exercise the trust may also be shown by proof of miscon- 
 duct or breaches of trust previous thereto, or of incapacity to per- 
 form the duties of the trust, or of conduct indicating unwillingness 
 to properly perform such duties: American Surety Co. v. Great 
 White Spirit Co., 58 N. J. Eq. 526, 43 Atl. 579. 
 
 See Settle v. Republic Sav. & L. Assn., 63 N. J. Eq. 578, 53 AtL 
 11, for an instance of the appointment of a receiver for an insolvent 
 building and loan association under a special statute governing such 
 •orporations. 
 
 New York.— The provisions of the New York statutes and Code 
 of Procedure relating to receivers of corporations are so numerous, 
 and have been subject to so many changes that any account of 
 them must exceed the limits of an elementary treatise. See, for a 
 statement of these provisions as they existed in 1868, Folger v. 
 Columbian Ins. Co., 99 Mass. 267, 96 Am. Dec. 747; in 1892, 2 Stim- 
 son's Am. Stat. Law, §§ 8330-8367, and addenda. See, also, for a 
 history of the legislation, United States Trust Co. v. New York, 
 W. 8. & B. R. Co., 101 N. Y. 478, 5 N. E. 316. The case of Bangs 
 V. Mcintosh, 23 Barb. 591, has been cited by courts and text-writers 
 as establishing the principle that the prescribed method of obtain- 
 ing jurisdiction of the person and of the subject-matter under these 
 statutes must be strictly followed; but the published opinion in 
 that case was not concurred in by a majority of the court. That a 
 creditor before judgment is not entitled to a receiver in an action 
 for a dissolution of the corporation on the ground of insolvency, 
 see Galwey v. United States Steam Sugar Refining Co., 13 Abb. Pr. 
 211; Rodbourn v. Utica, L & E. R, Co., 28 Hun, 369 (where the credi-
 
 245 APPOINTMENT OF RECEIVERS OF CORPORATIONS. § 127 
 
 tor's judgment is opened, the order appointing the receiver should 
 be vacated); Lehigh Coal etc. Co. v. Central N. J. R. Co., 43 Hun, 
 546. That in proceedings by the attorney -general for the dissolu- 
 tion of a corporation and the forfeiture of its franchises the court 
 has no power to appoint a receiver before judgment of forfeiture, see 
 People V. Washington Ice Co., 18 Abb. Pr. 382. That the provision 
 relating to the forfeiture of the corporate charter on the ground 
 of discontinuance of business for a year contemplates proceedings 
 by the attorney-general, not by a stockholder, see Oilman v. Green- 
 point Sugar Co., 4 Lans. 483. As to the time when the appointment 
 may be made in proceedings for the voluntary dissolution of a cor- 
 poration, see Chamberlain v. Rochester S. P. V. Co., 7 Hun, 557; 
 Matter of Boynton Saw and File Co., 34 Hun, 369 (no power to 
 appoint a temporary receiver) ; Re Hitchcock Mfg. Co., 1 App. Div. 
 164, 37 N. Y. Supp. 834. As to the appointment of a receiver "to 
 carry the judgment into effect," see King v. Barnes, 51 Hun, 550, 
 4 N. Y. Supp. 247, affirmed 113 N. Y. 655, 21 N. E. 184 (in aid of 
 judgment directing defendants to transfer to plaintiffs certain shares 
 of stock in a corporation, by means of which they had been assum- 
 ing control of the company in fraud of plaintiffs' rights). It haa 
 been held that Code Civ. Proc, § 1810, subd. 3, authorizing the ap- 
 pointment when there is no officer to take charge of the assets, does 
 not apply when officers resign for the purpose of having a receiver 
 appointed: Zeltner v. Zeltner Brewing Co., 174 N. Y. 247, 95 Am. St. 
 Rep. 574, 66 N. E. 810. 
 
 Pennsylvania. — In quo warranto proceedings against a corpora- 
 tion the court has no jurisdiction, upon motion of the common- 
 wealth, to appoint a receiver: Fraternal Guardian's Estate, 159 Pa, 
 St. 603, 28 Atl. 479; Commonwealth v. Order of Vesta, 156 Pa, 
 St. 531, 27 Atl. 14 (construing act of 1893). 
 
 Texas. — The courts of Texas have several times been called upon to 
 interpret a provision of their statutes relating to the appointment of 
 receivers of corporations similar to that of the California code, and 
 have reached a conclusion directly opposite to that reached in Have- 
 meyer v. Superior Court, 84 Cal. 327, 18 Am. St. Rep. 192, 24 Pae. 
 121, 10 L. R. A. 627. In Texas, therefore, under the familiar code 
 provision that receivers may be appointed "in cases where a corpora- 
 tion has been dissolved, or is insolvent, or in imminent danger of in- 
 solvency, or has forfeited its corporate rights," a receiver may be 
 appointed on the application of the state after judgment in quo war- 
 ranto proceedings against the corporation: East Line & Red River R. 
 Co. V. State, 75 Tex. 434, 12 S. W. 690; Texas Trunk R. Co. v. State, 
 83 Tex. 1, 18 S. W. 199; San Antonio Gas Co. v. State, 22 Tex. Civ. 
 App. 118, 54 S. W. 289. In Texas Trunk R. Co. v. State, the court 
 says, in speaking of this section of the statute: "The fact that it 
 does not limit the power to appoint, as do the former sections of th«
 
 §• 127 EQUITABLE REMEDIES. 246 
 
 act, to cases in which this is asked by creilitors or others having a di- 
 rect pecuniary interest in the subject matter to which the receiver- 
 ehip will relate, evidences an intention to confer upon the courts the 
 power to appoint receivers in all cases to which the law applies, when- 
 ever the interest of individuals or public interest may require this 
 to be done. The power of the court, adjudging the forfeiture of a 
 corporate franchise and the dissolution of the corporation, to appoint 
 a receiver is too clear, and although the state may not be a creditor 
 the public has such an interest in the proper management of the prop- 
 erty of a dissolved railway company as makes it proper that a re- 
 ceiver should be appointed to manage and control its property, to the 
 end that it shall be faithfully applied to the public purpose for which 
 the corporation was originally created, and that this should be done 
 is the more apparent when the mismanagement or disregard of duty 
 on the part of the governing body of a railway corporation has been 
 such as to require its dissolution." In San Antonio Gas Co. v. State, 
 the court observes: "To place the property again in the hands of the 
 officers of the corporation would be to return it to the custody of 
 those who had failed to perform their trust, and had violated the 
 laws of the state, and the public interests would not be subserved 
 thereby That the appointment of a receiver will have the ef- 
 fect of a fine inflicted upon the shareholders in the defunct corpora- 
 tion can have no weight in the decision of a court. The statute 
 plainly confides the authority to the court to make the appointment, 
 and that it will bear heavily upon the shareholders is a matter for 
 legislative, and not judicial, consideration. In this case at least, the 
 riolators of the law will be the ones who will suffer from the ap- 
 pointment of a receiver." 
 
 This statute, however, does not make insolvency or imminent dan- 
 ger thereof a cause of action, and does not entitle a stockholder or 
 lien creditor of a corporation which is still a going concern to have 
 a receiver appointed on the ground of its insolvency, or imminent 
 danger of insolvency, alone; but such stockholder must show, to en- 
 title himself to such appointment, that he has a cause of action 
 against the corporation, independently of the receivership; that the 
 •orporation is insolvent, or in imminent danger thereof; and that 
 his interest as such stockholder requires the appointment to be made: 
 People's Investment Co. v. Crawford (Tex. Civ. App.), 45 S. W. 738; 
 Espuela Land etc. Co, v. Bindle, 5 Tex. Civ. App. 18, 23 S. W. 819, 
 following French Bank Case, 53 Cal. 553; New Birmingham Iron etc. 
 Co. V. Blevins, 12 Tex. Civ. App. 410, 34 S. W. 828. A receiver may 
 properly be appointed in a suit to foreclose a deed of trust securing 
 bonds of an insolvent corporation: Childress v. State Trust Co. (Tex. 
 Civ. App.), 32 S. W. 330. The jurisdiction of the court to appoint a 
 receiver in suits by creditors cannot be defeated by a transfer of the 
 property of the insolvent corporation to an assignee: Milam County 
 •tc Allianca t. Tennent-Stribling Shoe Co. (Tex. Civ. App.), 40 S.
 
 247 APPOINTMENT OF EECEIVERS OF COEPORATIONS. § 127 
 
 W. 331. It is held not to be essential, under the statute, that the 
 claim of the creditor of an insolvent corporation should have become 
 a judgment, or that he should have an express lien upon the property 
 of the corporation: San Antonio & G. S. E. Co. v. Davis (Tex. Civ. 
 App.), 30 S. W. 693; compare Brenton & McKay v. Peck (Tex. Civ. 
 App.), 87 S. W. 898. 
 
 Washington, — The usual code provision, that a receiver may be ap- 
 pointed "where a corporation has been dissolved or is insolvent, or 
 is in imminent danger of insolvency, or has forfeited its corporate 
 rights," is interpreted as meaning that the court is authorized to 
 appoint such receiver whenever any of these facts is made to appear, 
 at the instance of any party interested. "No other conditions are 
 imposed by the statute, and to import any other would be judicial leg- 
 islation." A receiver may, therefore, be appointed on the applica- 
 tion of any creditor of the corporation, when its insolvency is estab- 
 lished to the satisfaction of the court, and this, notwithstanding that 
 the corporation has made a voluntary assignment for the benefit of 
 creditors: Olson v. Bank of Tacoma, 15 Wash. 148, 45 Pac. 734. That 
 a receiver can be appointed in an action by the state to exclude de- 
 fendants from corporate rights and franchises, only after judgment in 
 such action, see State v. Superior Court, 15 Wash. 688, 55 Am. St. 
 Eep. 907, 47 Pac. 31. 
 
 Wisconsin.— Eev. Stats., § 3216, provides that an action may be 
 brought against a corporation by a judgment creditor after an exe- 
 cution has been returned unsatisfied in whole or in part, and the 
 court may sequester its stock, property, things in action, and effects, 
 and appoint a receiver. Section 3217 provides for a just and fair dis- 
 tribution of the property among the fair and honest creditors, accord- 
 ing to § 3245. § 3221 allows directors and stockholders to be made 
 parties. By § 3226, stockholders may be adjudged to pay what is 
 due on their unpaid stock. By § 3227, an injunction may be issued to 
 restrain proceedings by any other creditor against the defendant 
 corporation. Several other sections provide for making the directors, 
 officers, and stockholders parties, if in any event they may be liable 
 to the creditors. For instances of suits under these sections, see Pow- 
 ers V. C. H. Hamilton Paper Co., 60 Wis. 23, 18 N. W. 20; Ballin v. 
 Loeb, 78 Wis. 404, 47 N, W. 516, 10 L, E. A. 742 (the suit may be 
 founded on a judgment of the federal court in the state) ; Garden 
 City Bank etc. Co. v. Geilfuss, 86 Wis. 612, 57 N. W. 349; Ford v. 
 Plankinton Bank, 87 Wis. 363, 58 N, W. 766. In the last case it was 
 held that where a banking corporation has made a valid voluntarv 
 assignment of aU its assets, in the manner and form, and to the 
 effect, prescribed by statute, a receiver cannot be appointed under 
 these sections to supersede the assignment and change the rule for 
 the distribution of the proceeds of the assignment to the rule pre- 
 scribed by statute in receivership cases. Where, however, such as-
 
 § 128 EQUITABLE REMEDIES. 248 
 
 § 128. Eailroad Receivers; in General. — It is not uncom- 
 mon, in railroad receivership cases, to find strong state- 
 ments as to tlie great reluctance of courts to undertake 
 the management of railroads, except in the most urgent 
 cases ;^^^ but the experience of the last twenty-five years 
 has tended to raise the question in some minds whether 
 these expressions are to be taken veiy seriously, or 
 whether tlie magnitude of the interests involved actu- 
 ally does — if, indeed, it should — exercise any strong de- 
 terring influence on the action of the courts.^ ^^ 
 
 signment is fraudulent, the cause of action under § 3216 is not de- 
 stroyed, but rather strengthened, by averments in respect thereto: 
 Powers V. C. H. Hamilton Paper Co. 
 
 311 "The appointment of receivers by a court to manage the aflairs 
 of a long line of railroad, continued through five or six years, is one 
 of those judicial powers the exercise of which can only be justified 
 by the presence of an absolute necessity": Per Miller, J., in Milwau- 
 kee & Minnesota R. Co. v. Soutter, 2 Wall. 510. "The appointment 
 of a receiver in a suit for the foreclosure of a mortgage on a rail- 
 road is not a matter of right, but rests in the sound discretion of 
 the court, and is a power to be exercised sparingly, and with great 
 caution": Per Caldwell, Cir. J., in Farmers' Loan & Trust Co. v. 
 Kansas City, W. & N. W. R. Co., 53 Fed. 182, 184. "Whether a re- 
 ceiver shall be appointed is always a matter of discretion, to be exer- 
 cised sparingly and with great caution in the case of quasi public cor- 
 porations operating a public highway, and always with reference to 
 the special circumstances of each case as it arises": Sage v. Railroad 
 Co., 125 U. S. 361, 8 Sup. Ct. 887, 31 L. ed. 694. See, also, Overton 
 v. Memphis etc. R. Co., 10 Fed. 866, 3 McCrary, 436; Kelly v. Ala- 
 bama etc. R. R., 58 Ala. 489; Merriam v. St. Louis, C. G. & Ft. S. 
 R. Co., 136 Mo. 135, 36 S. W. 630; Stevens v. Davison, 18 Gratt. 819, 
 98 Am. Dec. 692. 
 
 312 "In actions to foreclose railway mortgages, it has come to be 
 the fact that receivers are appointed, especially in the Federal courts, 
 almost as a matter of course; and in these and other cases courts 
 have often shown a discreditable eagerness to possess themselves of 
 80 much jurisdiction and power, and a corresponding disinclination 
 to relinquish it when once acquired": 5 Thomp. Corp., § 6833. Allow- 
 ance should be made, of course, for Judge Thompson's well-known 
 antipathy to the federal courts; but the fact remains that out of 
 the vast multitude of railroad receivership cases that have engaged 
 the attention of these courts in late years, in a very small number
 
 249 APPOINTMENT OF EAILROAD EECEIVERS. i ISt 
 
 While railroad receivers are usually appointed as 
 an incident of foreclosure proceedings, they are occa- 
 sionally appointed in other classes of cases; as, at the 
 suit of a judgment creditor^ ^^ or of a shareholder;^^* 
 
 only does the court take the trouble to justify its action in appoint- 
 ing the receiver. 
 
 313 Sage V. Memphis etc, R. E. Co., 125 U. S. 361, 8 Sup. Ct. 887, 
 31 L. ed. 694, holding that the suing out of execution was not a 
 prerequisite where it would be useless, and no objection was made 
 on this ground. In Milwaukee & M. E. E. Co. v. Soutter, 2 Wall. 
 510, 523, 17 L. ed. 860, Mr. Justice Miller remarks: "The idea of ap- 
 pointing or continuing a receiver for the purpose of taking ninety- 
 five miles of railroad from its lawful owners, which is earning a 
 gross revenue of $800,000 per annum, to enforce the payment of a 
 judgment of $16,000, the lien of which is seriously controverted, is 
 so repugnant to all our ideas of judicial proceedings that we cannot 
 argue the question. If the creditor has a valid judgment, the usual 
 modes of enforcing that judgment are open to him, both at law and 
 in chancery; but the extraordinary proceeding of taking millions of 
 dollars' worth of property, of such peculiar character as railroad 
 property is, from its rightful possessors, as one of the usual modes 
 of collecting such a comparatively small debt, can find no countenance 
 in this court." For a special statute in Kentucky authorizing the 
 appointment of a receiver in aid of a judgment creditor whose exe- 
 cution has been returned unsatisfied, see Ball v. Maysville & B. S. 
 E. Co., 102 Ky. 486, 80 Am. St. Eep. 362, 43 S. W. 731. 
 
 314 Stevens v. Davison, 18 Gratt. 819, 829, 98 Am. Dec. 692 (re- 
 ceiver appointed in suit by shareholder to set aside an unauthorized 
 lease of the road, until it could be ascertained, by proper inquiry, 
 who are the legitimate stockholders of the company, to whom the 
 custody and management of the railroad should be committed) ; 
 Union Trust Co. v. Illinois Midland E. Co., 117 U. S. 434, 6 Sup. Ct. 
 809, 29 L. ed. 963. 
 
 In the following special cases a receiver was sought and refused: 
 in aid of an injunction restraining the consolidation of two com- 
 panies, when it was not shown that the directors of the company in- 
 tended to transfer its property in violation of such injunction: Cleve- 
 land etc. Ey, Co. v. Jewett, 37 Ohio St. 649; in aid of an injunction 
 against the performance of an agreement in restraint of trade: Stock- 
 ton V. Central E. Co., 50 N. J. Eq. 489, 25 Atl. 942; in aid of an in- 
 junction regulating the use of a common easement: Delaware, L. & 
 W. E, Co. V. Erie E. Co., 21 N. J. Eq. 298. As to receivers in aid of 
 judgment creditors of railway companies in England under the Enil- 
 way Companies Act of 1867, see In re Birmingham & L. J. E. Co. 
 18 Ch. D. 155.
 
 i 120 EQUITABLE REMEDIES. 250 
 
 bnt not on the application of the company itself,^^^ nor 
 in aid of an unsecured creditor who has not reduced 
 Ms claim to judgment.^^* 
 
 § 129. In Foreclosure of Railroad Mortgages; in General. 
 Whatever may be thought of the practice, the principle 
 is well settled that a receiver is not to be appointed as 
 a matter of course on the mere ground that the defend- 
 ant corporation is in default.^ ^^ "The right to fore- 
 close does not cai*ry with it the right to a receiver. 
 There are many considerations that bear upon that 
 question. Every case, of course, stands on its own 
 merits. It is difficult to formulate any rule which, 
 briefly stated, will control in all cases. It should ap- 
 pear that there is some danger to the property; that 
 its protection, its preservation, the interests of the va- 
 rious holders, require possession by the court before a 
 receiver should be appointed. It does not go as a mat- 
 ter of course; and yet it is not a matter that a court 
 can refuse simply because it is an annoyance. If, look- 
 ing at the situation of the litigating parties, and of the 
 property, with the prospect of the future, it should ap- 
 pear to a court that they would be benefited, that their 
 interests would be subserved by the appointment of a 
 receiver, no court — although a matter resting, as it is 
 
 «15 See ante, § 118. 
 
 H6 Guilmartin v. Middle Georgia & A. E. Co., 101 Ga. 565, 29 S. 
 ■. 189. 
 
 317 Williamson v. New Albany etc. R. Co., 1 Biss. 206, Fed. Cas. 
 Vo. 17,753; Union Trust Co. v. St. Louis, I. M. & S. E. Co., 4 Dill. 
 114, Fed. Cas. No. 14,402; Farmers' Loan & Trust Co. v. Chicago & 
 A. E. Co., 27 Fed. 146; American Loan & Trust Co. v. Toledo, C. & 
 e. E. Co., 29 Fed. 416; Mercantile Trust Co. v. Missouri, K. & T. E. 
 Co., 36 Fed. 221, 1 L. E. A. 397. See, also, observations in Blair v. 
 at. Louis, H. & K. E. Co., 20 Fed. 348. 
 
 A bondholder cannot have the appointment of a receiver as against 
 a lessee in possession under a lease prior in time to the mortgage: 
 LouiaviUe & N. R. Co. v. Eakins, 100 K7. 745, 39 S. W. 416.
 
 251 APPOINTMENT OF KAILEOAD EECEIVERS. § 129 
 
 said, in its discretion — could refuse to make the ap- 
 pointment."^^ ^ 
 
 The reason why it has become the common practice 
 to appoint receivers for the administration of the mort- 
 gaged property of railroads upon default in payment 
 of interest on the bonds is lucidly explained in a recent 
 case, in part as follows: "The fact that so many rail- 
 road corporations have issued bonds and mortgaged 
 their property in advance of the construction of their 
 railroads and the acquisition of the property mort- 
 gaged, greatly beyond its market value at forced sale, 
 had inclined courts of equity to treat holders of rail- 
 road bonds, or the trustees in the mortgages, as the 
 owners of the roads, rather than simply as lienholders, 
 and to charge them as such owners, after default, with 
 
 the unpaid expenses of operating the property 
 
 It is true that such [forced] sales are not a reasonable 
 test of the actual value of such property. It is, how- 
 ever, equally true that the conditions which generally 
 affect such property have been found to render it not 
 practicable to make a sale thereof in any other man- 
 sis Per Brewer, J., in Mercantile Trust Co. v. Missouri, K. & T. 
 E, Co., 36 Fed. 221, 224, 1 L. E. A. 397. A receiver was appointed in 
 this case under the following circumstances: a railroad, mortgaged 
 to the extent of $28,000 a mile, had made several defaults in the 
 payment of interest, aggregating over $1,000,000; its business was 
 decreasing, and was likely to decrease further from competition by 
 new lines; it was in need of repairs and improvements; its bondhold- 
 ers were not in harmony; and no other way existed for applying the 
 rents and profits of the road to the payment of its debts. See, fur- 
 ther, as to the discretion of the chancellor in the matter of the ap- 
 pointment, Pullan V. Cincinnati etc. E. Co., 4 Biss. 35, Fed. Cas. No. 
 11,461; Pennsylvania Co. for Insurance v. Jacksonville etc. Ey. Co., 
 55 Fed. 131, 2 U. S. App. 606, 5 C. C. A. 53; Kelly v. Trustees etc., 
 
 58 Ala. 489; Farmers' Loan & Trust Co. v. Winona & S. W. Ey. Co., 
 
 59 Fed. 960; Sage v. Memphis & L. E. E. Co., 125 U. S. 361, 8 Sup. 
 Ct. 887, 31 L. ed. 694; Tysen v. Wabash Ey. Co., 8 Biss. 247, Fed. 
 Cas. No. 14,315; Williamaon t. New Albany etc. E. Co., 1 Biss. 206,, 
 Fed. Caa. No. 17,753.
 
 § 129 EQUITABLE REMEDIES. 252 
 
 ner to any greater or to an equal advantage to all 
 parties concerned therein. The practical result from 
 these prevalent conditions is that, when a railroad cor- 
 poration is unable to pay its currently accruing inter- 
 est, it is actually, as well as technically, insolvent, and 
 its property inadequate security for its mortgage debt. 
 The larger part of the value of the property is de- 
 pendent upon its continued operation as a public car- 
 rier. Its successful operation and ability to earn in- 
 come are in most cases largely dependent on the rail- 
 road's connections, and its friendly relations with other 
 carriers, and on the good will it has secured. And 
 while the appointment of a receiver is not a matter of 
 strict right, and such applications always call for the 
 exercise of judicial discretion, these imminent condi- 
 tions bearing upon such property, after default by the 
 mortgagor in the payment of interest on the mortgage 
 debt, give to an application for the appointment of a 
 receiver great force, and the practice to grant the 
 prayer therefor in such cases has become settled. "^^'^ 
 
 319 Central Trust Co. v. Chattanooga, R. & G. R. Co., 94 Fed. 275, 
 36 C. C. A. 241. In Farmers' Loan & Trust Co. v. Winona & S. W. 
 Ry. Co., 59 Fed. 957, the allegations of the bill and answer were in 
 conflict as to the solvency of the company, the condition and care 
 of its property, and the wisdom and economy of its methods of oper- 
 ation, but it appeared that the majority of its stock was in the hands 
 of a construction company, which had substantially the same officers, 
 and whose interests were adverse to those of the mortgage bondhold- 
 ers. It was held, by Caldwell, Cir. J., that these facts presented a 
 case for the appointment of a receiver upon default in payment of in- 
 terest on the bonds. In Kennedy v. St. Paul & Pacific R. Co., 2 Dill. 
 448, Fed. Cas. No. 7706, a ground for the appointment was found in 
 the fact that the financial condition of the company was such as to 
 prevent it from constructing a few miles of road, the completion of 
 which within a given time was necessary to prevent the lapsing of 
 a land-grant which formed an essential part of the bondholders' 
 security. See, also, Allen v. Dallas & W. R. Co., 3 Woods, 316, Fed. 
 Cas. No. 221. In Putnam v. Jacksonville, L. & St. L. Ry. Co., 61 
 Fed. 440 default in payment of taxes to a large amount was held
 
 26S APPOINTMENT OF RAILROAD RECEIVERS. § 130 
 
 § 130. Same; at "What Stage Appointed. — A receiver 
 ought not ordinarily to be appointed unless the right 
 of foreclosure is clear and indisputable; the existence 
 of a reasonable dispute as to whether the conditions of 
 the mortgage have been broken is sufficient to cause the 
 court to refuse the appointment.^^" 
 
 After the decree of foreclosure has been rendered, 
 but under the laws of the state no sale can be had 
 until the expiration of six months from the date, the 
 bondholders have a right to claim that the net income 
 shall be received by a disinterested trustee.^^^ 
 
 A receiver to preserve the franchise of a street rail- 
 road company from forfeiture was held to be properly 
 
 an important circumstance pointing to the propriety of a receiver- 
 »hip, in connection with a large indebtedness for wages and supplies, 
 although the company had not yet made default in the payment of 
 interest. 
 
 A petition by a minority of bondholders of a street railway com- 
 pany showing that the company had failed to pay accrued interest; 
 that it was allowing claims against it to accumulate; that executions 
 had been levied on the property; that the company was without offi- 
 cers; that the trustees had filed resignations, and had refused to 
 act; and that the franchises were in danger of being repealed be- 
 eause of the mismanagement of the road — shows sufficient grounds 
 for the appointment of a receiver: Ralph v. Shiawassee Circuit Judge, 
 100 Mich. 164, 58 N. W. 837. 
 
 320 American Loan & Trust Co. v. Toledo, C. & S. Ry. Co., 29 Fed. 
 416. In this case there had been default in the payment of interest 
 coupons, but it appeared that there was a fair and reasonable claim 
 by the defendant company, growing out of contemporaneous con- 
 tracts, that the time of payment had been extended, or that the plain- 
 tiffs were precluded from relying on the default. In Brassey v. New 
 York & N. E. R. Co., 19 Fed. 663, a receiver was appointed by consent 
 before default, when it appeared that the company was insolvent, was 
 unable to pay either its mortgage debt, its floating debts, or the 
 sums due connecting roads; that by virtue of numerous attachments 
 it was in danger of the destruction of its business; and that default 
 in the payment of interest was imminent. 
 
 321 Benedict v. St. Joseph & W. R. Co., 19 Fed. 173. In this case 
 hostile bondholders were in possession of the road, which was there- 
 fore placed in the hands of a receiver until the sale.
 
 § 131 EQUITABLE EEMEDIES. 254 
 
 appointed at the prayer of the mortgagee under the 
 following circumstances: the city had power to enforce 
 such forfeiture for failure to make certain repairs; the 
 company confessed its inability to make such repairs ; 
 and the mortgagee, a party to the suit between the com- 
 pany and the city, stood ready to advance the necessary 
 funds in case a receiver should be appointed with power 
 to borrow money.^^^ 
 
 § 131. Same ; Trustee's Rig^ht to Take Possession on Defanlt 
 as Affecting the Question of Appointment. — A provision fre- 
 quently found in railway deeds of trust empowers the 
 trustee, on default in payment of principal or interest, 
 to take possession of and manage the property, and ap- 
 ply the net income to the payment of the principal and 
 interest. Such provisions have frequently been passed 
 upon by the courts, with reference to their effect upon 
 the trustee's or bondholders' right to a receiver, with 
 considerable lack of agreement in the results arrived 
 at. In an early case it was held that the trustee may 
 waive his right under this provision and file a bill to 
 foreclose, but that in such a suit the court, in the 
 exercise of its discretion, would refuse to appoint a 
 receiver where no mismanagement or misapplication of 
 the revenue of the road was shown.^^^ In a series of 
 cases in one of the circuits the appointment seems to 
 have been looked upon almost as a matter of right on 
 
 322 Union St, E. Co, v. Saginaw, 115 Mich. 300, 73 N. W. 243, dis- 
 tinguishing the Michigan cases denying the right to a receiver in 
 foreclosure. See (tr}tr. !j 94. 
 
 323 Williamson v. New Albany etc, R, Co. (1857), 1 Biss. 198, 
 Fed. Cas. No. 17,753. No misapplication was shown where the reve- 
 nues had been applied to the reduction of a floating debt incurred for 
 the completion and equipment of the road, whereby the security of 
 the bondholders had been improved. The principle of this case fur- 
 nished a "perfect analogy" in the decision in Union Trust Co. v. 
 St. L. I. M. & S. R. Co., 4 DiU. 114, Fed. Cas. No. 14,402, per Miller, J,
 
 255 APPOINTMENT OF KAILROAD RECEIVERS. § 131 
 
 the mere showing of a default by the company; thus, it 
 was decided that where the trustee has failed to take 
 possession after default and a request by the bond- 
 holders, a receiver may be appointed on the ground of 
 such neglect, in their suit to enforce performance of 
 the trust ;^2* and that when the deed of trust mort- 
 gaged the income and profits, a receiver may be claimed 
 by the trustees on the mere ground of a default, irre- 
 spective of any showing as to the insufiiciency of the 
 property as a security, or that it is in jeopardy, or that 
 the company is insolvent.^^^ A ruling similar to the 
 last has been made by a state court, in a case where the 
 suit was by the trustee to obtain possession, not to fore- 
 close.^-^ A distinguished federal judge has held that 
 such a suit for specific enforcement of the mortgagee's 
 right is the proper procedure where the mortgage em- 
 braces real, personal and mixed property, which can- 
 not be transferred as a whole by the inflexible form and 
 processes of a court of law; and that a receiver should 
 be appointed during the pendency of the suit, where the 
 mortgaged property is an inadequate security, and the 
 company is insolvent and appropriating its earnings 
 to its own use.^2' A single state court has held, on the 
 contrary, that the legal remedies for the recovery of 
 possession are adequate in such a case, and that no 
 
 324 Wilmer v. Atlanta & R. A. R. Co., 2 "Woods, 409, Fed. Cas. No. 
 17,775; "Warner v. Rising Fawn Iron Co., 3 "Woods, 514, Fed. Cas, No. 
 17,188. 
 
 325 Allen V. Dallas & W. R. Co., 3 Woods, 316, Fed. Cas. No. 321. 
 This case, however, presented the additional grounds that the com- 
 pany was insolvent, and that a land grant was in danger of lapsing 
 and the charter of being forfeited, owing to the inability of the com- 
 pany to complete the road. 
 
 326 McLane v. Sacramento & Placerville R. Co., 66 Cal. 6(JB, 6 
 Pac. 748; Sacramento & Placerville R. Co. v. Superior Court, 55 Cai. 
 453. The statutory provisions relating to receivers in foreclosure 
 were held not applicable. 
 
 327 Dow V. Memphis & L. B. R. Co., 20 Fed. 260.
 
 §1 132, 13S EQUITABLE REMEDIES. 256 
 
 ground exists for the appointment of a receiver where 
 the trustee has made no attempt to enforce his rights 
 at law.^2^ 
 
 § 132. (11) Receiver in Bankruptcy Proceedings. — By the 
 Bankruptcy Act of 1898, the courts of bankruptcy have 
 jurisdiction (section 2, clause 3) to "appoint receivers 
 or the marshals, upon application of parties in interest, 
 in case the courts shall find it absolutely necessary, for 
 the preservation of estates, to take charge of the prop- 
 erty of bankrupts after the filing of the petition and 
 until it is dismissed, or the trustee is qualified," and to 
 (clause 5) "authorize the business of bankrupts to be 
 conducted for limited periods by receivers, the marshals, 
 or trustees, if necessary in the best interests of the 
 •states."^^® 
 
 § 133. (12) Alimony and Maintenance — Miscellaneous 
 Cases. — In a series of recent cases in California, the sub- 
 ject of receivers in suits for divorce or maintenance has 
 been considered. The authority for the appointment 
 of a receiver in a divorce suit is found in the Civil Code 
 
 «28 Rice V. St. Paul & P. R. Co., 24 Minn. 464, 
 
 S29 See In re Sievers, 91 Fed. 366; In re Etheridge Furniture Co., 
 92 Fed. 329 (assignee may be appointed) ; In re Fixen & Co., 96 Fed. 
 748; In re Reliance Storage & Warehouse Co., 100 Fed. 619; In t» 
 Kelly Dry Goods Co., 102 Fed. 747 (as to appointment by referee); 
 Ju re Floecken, 107 Fed. 241 (same); Booneville Nat. Bank v. Blakey, 
 107 Fed. 891, 47 C. C. A. 43 (powers of such receiver limited by terms 
 •f the statute); In re Rogers, 125 Fed. 169, 60 C. C. A. 567. For the 
 procedure in obtaining the appointment, and the functions and duties 
 •f such receivers, see Loveland, Bankruptcy, 2d ed., § 77a. As to 
 appointment of receivers in connection with bankruptcy proceedings 
 in England, see Riches v. Owen, L. R. 3 Ch. App. 820; Ex parte Jay, 
 L. R. 9 Ch. App. 133; Taylor v. Eckersley, L. R. 5 Ch. D. 740; Ex 
 parte Rylands, L. R. 6 Ch. D. 57; Salt v. Cooper, L. R. 16 Ch. D. 
 544.
 
 257 APPOINTMENT OF RECEIVERS; MISCELLANEOUS. § 133 
 
 of that state.2^° It is held that the whole object of his 
 appointment is to provide security for the payment of 
 such allowance as is made for the maintenance of the 
 divorced wife, and that this would be accomplished by 
 investing him with the title and control of some pro- 
 ductive property of the husband, out of the income of 
 which he could pay such allowance, or by authorizing 
 the sale of property to create a fund, the income of 
 which would be applied to the same purpose.^^^ Where 
 a husband has failed to pay alimony pursuant to orders 
 of the court, and has attempted to dispose of his prop- 
 erty to prevent his wife from getting any part of it, 
 the lion of the alimony upon the husband's estate may 
 be enforced by appointing a receiver to collect the rents 
 and profits, to sell the property, and pay the sums ad- 
 judged to be due.^^2 But the court has no jurisdiction 
 to continue the receiver after the entry of a final judg- 
 ment in the action for permanent alimony in a single 
 sum of money; such judgment must be enforced not by 
 a receiver, but by a writ of execution against the prop- 
 erty of the husband.^^^ It is also held that the right 
 to a receiver in an equitable action by the wife for 
 maintenance without divorce is not dependent upon 
 
 330 Cal. Civ. Code, § 140. "The court may require the husband 
 to give reasonable security for providing maintenance or making 
 any payments required under the provisions of this chapter [con- 
 cerning Divorce], and may enforce the same by the appointment of 
 a receiver, or by any other remedy applicable to the case.'' 
 
 331 Petaluma Sav. Bank v. Superior Court, 111 Cal. 488, 495, 44 
 Pac. 177. 
 
 332 Huellmantel v. Huellmantel, 124 Cal. 583, 589, 57 Pac. 582. 
 
 333 White V. White, 130 Cal. 597, 80 Am. St. Eep. 150, 62 Pac. 1062. 
 The provision of the Code of Civil Procedure, § 564, subd. 3, for a 
 "receiver after judgment, to carry the judgment into effect," ap- 
 plies only to cases where the judgment affects specific property, and 
 not to a simple money judgment, where the writ of execution furi- 
 nishes an amply sufficient remedy: Id. 
 
 Equitable Remedies, Vol. 1—17
 
 § 133 EQUITABLE EEMEDIES. 258 
 
 this section, but is within the general provision of the 
 code for such an officer in all cases "where receivers 
 have been heretofore appointed by the usages of courts 
 of equity" ; and that such a receiver should be appointed, 
 when occasion arises, for reasons like those on which 
 a creditor, seeking to avoid fraudulent conveyances of 
 a debtor, is permitted to employ the same instrumen- 
 tality.334 
 
 A statute in Indiana authorizes a receiver in an ac- 
 tion of replevin, when the property claimed has a pecu- 
 liar value that cannot be compensated by damages.^^^ 
 
 A receiver has been allowed, under peculiar circum- 
 stances, for the protection of a trade secret, where the 
 usual remedy by injunction was inadequate. When 
 parties become possessed in a wrongful and fraudulent 
 manner of a knowledge of a secret code or system of 
 letters, figures, and characters, and the key thereto, 
 showing the cost and selling price of wares and mer- 
 chandise, for use between the plaintiff and its traveling 
 salesmen, and have copied the same into a catalogue 
 of their own, a court of equity should take such marked 
 catalogue into its possession, through a receiver, and 
 retain it pending the action, where, in furtherance of 
 justice and to prevent a fraudulent use of such code 
 or system, such intervention becomes necessary.^ ^^ 
 
 334 Murray it. Murray, 115 Cal. 266, 56 Am. St. Eep, 97, 47 Pac. 
 37, 37 L. K. A. 626; as where the husband has endeavored and is en- 
 deavoring to sell or encumber his property in the state, and is a 
 resident of another state, and cannot give personal attention to his 
 properties in the state: Anderson v. Anderson, 124 Cal. 48, 56, 71 Am. 
 St. Rep. 17, 56 Pac. 630, 57 Pac. 81. 
 
 335 Indiana Eev. Stats. (1881), § 1270; Hellebush v. Blake, 119 
 Ind. 349, 21 N. E. 976. 
 
 336 Simmons Hardware Co, v. Waibel, 1 S. Dak. 488, 36 Am. St. 
 Rep. 755, 47 N. W. 814, 11 L. R. A, 267. See, also, as to protection 
 of trade secret by appointment of receiver, Tuttle v. Blow, 176 Mo. 
 158, 98 Am. St. Rep. 488, 75 S. W. 617.
 
 259 EECEIVERS APPOINTED APTEE JUDGMENT. § 134 
 
 § 134. Fourth Class.— "This class contains those cases 
 in which a receiver is appointed after judgment for the 
 purpose of carrying the decree into effect. In some in- 
 stances the receiver appointed on motion pending the 
 action is continued in his office after the decree; in 
 others, he is appointed after the decree, when no ap- 
 pointment would be made before the final hearing. In 
 all instances the object of a receiver is to carry into 
 effect a special decree, which could not otherwise be 
 efficiently executed by ordinary process. Among the 
 most important cases in which a receiver may thus be 
 appointed are creditors' suits and suits to enforce other 
 equitable liens, suits to enforce the contracts of mar- 
 ried women against their separate estates, and suits or 
 proceedings generally statutory for the winding up of 
 corporations."^^' 
 
 337 4 Pom. Eq. Jur., § 1335. As to receivers in creditor's suits, se« 
 ayite, §§ 106-109; receivers in proceedings for the winding up of cor- 
 porations, ante, § 127, note; in mortgage foreclosure, after the de- 
 cree, ante, § 98; Connelly v. Dickson, 76 Ind. 440; Haas v. Chicago 
 Bldg. Soc, 89 111. 498; to carry into effect a decree of alimony, ante, 
 § 133. The classification of the preceding paragraphs has been based 
 on the subject of the suit, regardless of the stage in the proceedings 
 at which the appointment of a receiver was requested. A provision 
 of most of the codes expressly authorizes the appointment of a 
 receiver for the purpose of carrying into effect a judgment or decree: 
 See ante, § 73. See, also, Covington Drawbridge Co. v. Shepherd, 21 
 How. (62 U. S.) 112, 16 L. ed. 38 (where rents and profits for a 
 given period sold under execution, receiver appointed to collect 
 tliem); Fox v. Hale & Norcross S. M. Co., 108 Cal. 475, 41 Pac. 328; 
 Stockton V. Central E. Co., 50 N. J. Eq. 489, 25 Atl. 942. 
 
 A receiver is not infrequently appointed after decree to preserve 
 the property during the pendency of an appeal: See Kreling v. Kreling, 
 118 Cal. 421, 50 Pac. 549 (pending decision of motion for a new 
 trial, to collect rents and profits of land directed by the judgment to 
 be sold); Corbin v. Thompson, 141 Ind. 128, 40 N. E. 533 (not ap- 
 pointed, when question is one of disputed title) ; Chicago & L. E. 
 E. Co. V, St. Clair, 144 Ind. 371, 42 N. E. 225; Mitchell v. Eoland, 
 95 Iowa, 314, 63 N. W. 606; Eastman v. Cain, 45 Neb. 48, 63 N. W. 
 123; Moran v. Johnston, 26 Gratt. 108 (to collect rents and profits
 
 f 135 EQUITABLE REMEDIES. 260 
 
 § 135. A Receiver is not Appointed Without Notice to the 
 Defendant. — The appointment of a receiver, to take prop- 
 erty from one who is, prima faciei entitled to its pos- 
 session, before the ultimate rights of the parties can be 
 satisfactorily determined, is such a harsh and extraor- 
 dinary proceeding that the courts will seldom allow it 
 to be done without notice having been given to the ad- 
 verse party. The leading case on the subject says : 
 "By the settled practice of the court, in ordinary suits, 
 a receiver cannot be appointed ex parte, before the de- 
 fendant has had an opportunity to be heard in relation 
 to his rights, except in those cases where he is out of 
 the jurisdiction of the court or cannot be found, or 
 where, for some other reason, it becomes absolutely 
 necessary for the court to interfere, before there is time 
 to give notice to the opposite party, to prevent the de- 
 struction or loss of the property."^^^ This statement 
 has been quoted approvingly and adopted by the courts 
 of nearly every jurisdiction where the opportunity has 
 arisen.^^^ 
 
 of land directed to be sold for benefit of creditors) ; Beard v. Ar- 
 buckle, 19 W. Va. 145 (same). 
 
 338 Verplank v. Mercantile Ins. Co. of N. Y., 2 Paige, 438, citing 
 People V. Norton, 1 Paige, 17. To same effect, see Sanford v, Sin- 
 clair, 8 Paige, 372; Simmons v. Wood, 45 How. Pr. 262; Strong v. 
 Epstein, 14 Abb. N. C. 322; Whitney v. N. Y. & A. E. Co., 66 How. 
 Pr. 436; Whitney v. Welch, 2 Abb. N. C. 442; Ramsey v. Erie Ry. 
 Co., 7 Abb. Pr., N. S., 156; Ettlinger v. Persian R. & C. Co., 66 Hun, 
 94, 20 N. Y. Supp. 772; see as to the effect of a statute, Grace v. 
 Curtiss, 3 Misc. Rep. 558, 28 N. Y, Supp. 321; Henry v. Furbish, 30 
 Misc. Rep. 822, 62 N. Y. Supp. 247. 
 
 339 The following cases uphold, or recognize, the principles stated, 
 many of them in the words of the quoted case: 
 
 England.— In re Potts, [1893] 1 Q. B. 648 (holding a receiver 
 should not be appointed ex parte). 
 
 United States.— Barley v. Gittings, 15 App. D. C. 427; North Am. 
 L. & T. Co. V. Watkins, 109 Fed. 101, 48 C. C. A. 254 ("and to de- 
 prive him [the defendant] of the possession of hia property, witTiout 
 notice, on the motion of hia adversary, is a jurisdiction and a power
 
 261 APPOINTMENT OF EECEIVKRS; NOTICE. § 135 
 
 that should be rarely used, and never except in a clear case of im- 
 perious necessity, when the right of the complainant, on the showing 
 made by him, is undoubted, and when such relief and protection can 
 be given in no other way"); Joseph Dry Goods Co. v. Hecht, 57 
 C. C. A. 64, 120 Fed. 760. 
 
 Alabama. — Crowder v. Moone, 52 Ala. 220; Ashurst v. Lehman, 86 
 Ala. 370, 5 South. 731; Thompson v. Tower Mfg. Co., 87 Ala. 733, 6 
 South. 928 (citing early cases); Moritz v. Miller, 87 Ala. 331, 6 
 South. 269; Sims v. Adams, 78 Ala. 395; Peter v. Kahn (Ala.), 9 
 South. 729; Dallins v. Lindsey, 89 Ala. 217, 7 South. 234; Irwin v. 
 Everson, 95 Ala. 64, 10 South. 320; Bank of Florence v. U. S. Savings 
 & Loan Co., 104 Ala. 297, 16 South. 110; Capital City Waterworks 
 Co. V. Weatherly, 108 Ala. 412, 18 South. 841; see Maxwell v. Peters 
 Shoe Co., 109 Ala. 371, 19 South. 412; Smith-Dimmick L. Co. v. Teague, 
 119 Ala. 385, 24 South. 4; Gilreath v. Trent Co., 121 Ala. 204, 25 
 South. 581; Meyer v. Thomas (Ala.), 30 South. 89. 
 
 California.— Fisher v. Superior Court, 110 Cal. 129, 42 Pac. 561 (it 
 would be a "gross abuse of discretion"). 
 
 Colorado. — Belknap Sav. Bank v. Lamar Land etc. Co., 28 Colo, 
 326, 64 Pac. 212. 
 
 Florida.— State v. Jacksonville P. & M. E. Co., 15 Fla. 201; Fricker 
 V. Peters etc. Co., 21 Fla. 254, approved in Moyers v. Coiner, 22 
 Fla. 422; see Jacksonville Ferry v. Stockton, 40 Fla. 141, 23 South. 
 557; Stockton v. Harmon, 32 Fla. 312, 13 South. 833. 
 
 Georgia. — Eogers v. Dougherty, 20 Ga. 271. 
 
 Idaho.— Cummings v. Steele, 6 Idaho, 666, 59 Pac. 15. 
 
 Illinois.— Gilbert v. Block, 51 111. App. 516; Nusbaum ▼. Locke, 53 
 111. App. 242; Craver & S. Mfg. Co. v. Whitman etc. Mfg. Co., 62 
 111. App. 313; English v. People, 90 111. App. 54. 
 
 Indiana.— Wabash E. Co. v. Dykeman, 133 Ind. 56, 32 N. E. 823; 
 Chicago & S. E. E. Co. v. Cason, 133 Ind. 49, 32 N. E. 827 (citing 
 many early cases); Sullivan E. L. & P. Co. v. Blue, 142 Ind. 407, 
 41 N. E. 805; Winchester E. L. Co. v. Gordan, 143 Ind. 681, 42 N. 
 E. 914. 
 
 Iowa. — French v. Gifford, 30 Iowa, 148; approved in Bisson v. 
 Curry, 35 Iowa, 72; Howe v. Jones, 57 Iowa, 130, 8 N. W. 451, 10 
 N. W. 299; see Marsh v. Bird, 59 Iowa, 207, 13 N. W. 298. 
 
 Kansas. — Elwood v. First Nat. Bank, 41 Kan. 475, 21 Pac. 673; 
 Guy V. Doak, 47 Kan. 236, 366, 27 Pac. 968. 
 
 Louisiana.— State ex rel. Brittin v. New Orleans, 43 La. Ann. 829, 
 9 South. 643, approved in Mestier v. Chevallier Pav. Co., 51 La. Ann. 
 142, 24 South. 799 (citing early cases) ; Martin v. Blanchin, 16 La. 
 Ann. 237; Ober v. Excelsior Planting Co., 44 La. Ann. 570, 10 South. 
 792 (as to construction of a statute in regard to notice). See, also. In 
 re Moss Cigar Co., 50 La. Ann. 789, 23 South. 544,
 
 § 133 EQUITABLE KEMEDIES. 262 
 
 Maryland. — Thompson v. Diffendcrfer, 1 Md. Ch. 489; Blondheim 
 V. Moore, 11 Md. 365 (stating, "unless the necessity be of the most 
 stringent character, the court will not appoint a receiver until the 
 defendant is first heard in response to the application"); approved 
 in Triebert v. Burgess, 11 Md. 4.52; see Voshell v. Heaton, 26 Md. 83; 
 Anderson v. Cecil, 86 Md. 490, 38 Atl. 1074. 
 
 Michigan,— People ex rel. Port Huron & G. E. Co. v. St. Clair, 31 
 Mich. 456; Cook v. Detroit etc. R. Co., 45 Mich. 453, 8 N. W. 74. 
 
 lilinnesota.— Haugan v. Netland, 51 Minn. 552, 53 N. W. 873. 
 
 Mississippi.— Mays v. Eose, Freem. Ch. 703; Whitehead v. Wooten, 
 43 Miss. 523 ("there must be strong and special reasons for the 
 ippointment before answer"); Hardy v. McClellan, 53 Miss. 507; 
 Buckley v. Baldwin, 69 Miss. 804, 13 South. 851; Meridian N. & P. 
 Co. V. D. & W. P. Co., 70 Miss. 695, 12 South. 702; Barber v. Manier, 
 71 Miss. 725, 15 South. 890; Whitney v. Hanover Nat. Bank, 71 Miss. 
 1009, 15 South. 33, 23 L. B. A. 531; Pearson v. Kendrick, 74 Miss. 
 235, 21 South. 37. 
 
 Missouri.- St. Louis & S. E. Co. v. Wear, 135 Mo. 230, 36 S. W. 357, 
 658; Merriam v. St. L. C. G. & Ft. S. E. Co., 136 Mo. 145, 36 S. W. 
 «30; Tuttle v. Blow, 176 Mo. 158, 98 Am. St. Eep. 488, 75 S. W. 617. 
 
 Montana.— Thornton-Thomas M. Co. v. Second J. D. Ct., 20 Mont. 
 284, 50 Pac. 852; State v. District Court, 22 Mont. 241, 56 Pac. 281. 
 It should not be made upon affidavit based upon information and 
 belief: Benepe-Owenhouse Co. v. Scheidegger (Mont,), 80 Pac. 1024. 
 
 Nebraska.— By express terms of the statute (Code, §§ 267, 274), 
 the appointment is void, and subject to collateral attack, if the no- 
 tice therein prescribed has not been given: Johnson v. Powers, 21 
 Neb. 292, 32 N. W. 62; see Farmers & Merchants' Bank v. German 
 Nat. Bank, 59 Neb, 229, 80 N. W. 820. 
 
 Nevada, — Maynard v. Eailey, 2 Nev. 313. 
 
 New York.— See cases supra, note 338. 
 
 North Carolina.— Corbin v. Berry, 83 N. C. 27. 
 
 North Dakota.— Grandin v. Le Bar, 2 N, D. 206, 50 N. W. 151. 
 
 Ohio. — Schone v. Consolidated Bldg. & Sav, Co., 4 Ohio N. P. 216; 
 Cleveland C. C. & T. E. Co. v. Jewett, 37 Ohio St. 649 (citing early 
 •ases). See, also, Devell v. Hinds, 8 Ohio Dec. 177. 
 
 South CaroUna.— Dilling B. & Co. v. Foster, 21 S, C. 334; Allen v. 
 Cooley, 53 S. C. 634, 31 S. E. 634. 
 
 Texas.— Webb v. Allen, 15 Tex. Civ. App. 605, 40 S. W. 342. 
 
 Virginia.— Fredenheim v. Eohr, 87 Va. 764, 13 S, E. 193, 266 (cit- 
 ing cases); Va, Tenn, & C. S. & I. Co. v. Wilder, 88 Va. 942, 14 S. E. 
 S06 (stating that appointment without notice would be "utterly at 
 war with a sound, judicial, discretion"). Underwood v. McVeigh,
 
 263 APPOINTMENT OF RECEIVERS; NOTICE, § 136 
 
 § 136, Notice is Necessary Wliere Appointment Sought in 
 Pending Suits — The rule as to appointment without no- 
 tice extends to a motion for the appointment of a re- 
 ceiver in a pending suit where the defendant has ap- 
 peared, or for the extension of a receivership ;^^*^ the 
 
 23 Gratt. 418, has the following to say of ex parte appointments: 
 "The authorities on this point are overwhelming, and the decisions 
 of all the tribunals of every country where an enlightened jurispru- 
 dence prevails, are all one way. It lies at the very foundation of 
 justice, that every person who is to be affected by an adjudication 
 phould have the opportunity of being heard in defense, both in re- 
 pelling the allegations of fact, and upon matters of law, and no 
 sentence of any court, is entitled to the least respect in any other 
 court, or elsewhere, when it has been pronounced ex parte and with- 
 out opportunity of defense." And again, "A tribunal which de- 
 cides without hearing the defendant, or giving him an opportunity 
 to be heard, cannot claim for its decrees the weight of a judicial 
 sentence": Bristow v. Home Bldg. Co,, 91 Va. 18, 20 S. E. 946, 
 947. 
 
 Washington. — Roberts v. Washington Nat. Bank, 9 Wash. 12, 37 
 Pac. 26. See Cole v. Price, 22 Wash. 18, 60 Pac. 153; Larsen v. Win- 
 der, 14 Wash. 109, 53 Am. St. Rep. 864, 44 Pac. 123. It has been 
 held that an ex parte appointment has no force beyond the hearing: 
 State V. Superior Court, 34 Wash. 123, 74 Pac. 1070. 
 
 West Virginia.— Ruffner v. Mairs, 33 W. Va. 655, 11 S. E, 5, Com- 
 pare Batson v. Findley, 52 W. Va. 343, 43 S. E. 142. 
 
 Wisconsin.— Davelaar v. Blue Mound Inv. Co., 110 Wis. 470, 86 N. 
 W. 185. 
 
 Wyoming. — See for notice dispensed with, O'Donnel v. First Nat. 
 Bank, 9 Wyo. 408, 64 Pac. 337. 
 
 In addition to these cases, the principle is upheld in many of the 
 cases cited in the following paragraphs, where it is applied to par- 
 ticular classes of cases. 
 
 340 Cummings v. Steele, 6 Idaho, 666, 59 Pac. 15 (holding that such 
 appointment is not voidable, but void). See Johnson v. Powers, 21 
 Neb. 292, 32 N. W. 62; State ex rel. Brittin v. City of New Orleans, 
 43 La. Ann. 829, 9 South. 643 ("she is entitled to notice of all 
 proceedings taken in that suit affecting her interest. The receiver- 
 ship was originally established, as appears on the order, only on her 
 consent and joinder in the application therefor. It cannot be ex- 
 tended and enlarged without notice to her. The exception that the 
 city was bound to proceed by petition has no merit"). Approved 
 in Mestier v. A, Chevallier Pavement Co., 51 La. Ann. 142, 24 South. 
 799.
 
 S 137 EQUITABLE REMEDIES. 264 
 
 ground being that the defendant's right to show why 
 his property should not be taken from his possession 
 should not be defeated merely because he is already a 
 party to a suit in regard to it.^^^ But in such cases 
 the notice need not be as direct and explicit as in those 
 instances where the defendant has had no means of 
 knowing that his right to the possession of his prop- 
 erty is contested.^^^ 
 
 § 137. To Whom Notice Must be Given; Waiver; Review 
 of Ex Parte Appointment — Not only must notice be given 
 to the defendants generally, but the particular person 
 to be dispossessed must be notified.^'*^ As the notice 
 is given for the benefit of the defendant, who has pos- 
 session of the property, the lack of notice, or the ex- 
 piration of the required time after notice and before 
 
 In West Virginia the rules have been laid down as follows: "In 
 every instance, before process served — and the application is thus 
 (x parte — such notice must be given, except in cases of emergency, 
 where it is impracticable, else the appointment will be reversible. 
 And even after process served, during the pendency of the suit, 
 if such application is made in vacation, there must likewise be such 
 notice; but there need be no notice when made in term time in a de- 
 cree on the merits. Where the bill prays for an appointment of a 
 receiver, it may be done any time after process is served, without 
 further notice": Batson v. Findley, 52 W. Va. 343, 43 S. E. 142. 
 
 341 And where the code provided that a receiver could be ap- 
 pointed, without further notice, in a pending action, it was so con- 
 strued as not to include an action pending before a referee, and 
 notice was required: Strong v, Epstein, 14 Abb. N. C. 322. 
 
 342 In Clark v. Clark, 11 Abb. N. C. 333, the notice was, "if the 
 present receiver is discharged," motion will be made for the ap- 
 pointment of another one; this was held sufficient notice. So, where 
 the defendant had had a hearing that served the purpose of a formal 
 notice: Hancock v. American Bonding & Trust Co., 86 111. App. 630, 
 citing cases. 
 
 343 Gilbert v. Block, 51 111. App. 516. It has been held that a 
 defendant who has been notified cannot object that the other defend- 
 ants have not had notice: Kapp v. Kiehling, 122 Ind. 255, 23 N. E, 
 68. As to what constitutes suflficient service, or notice, see Allen 
 v. Cooley, 53 S. C. 414, 31 S. E. 634; Schilcer v. Brock, 124 Ala. 626, 
 27 South. 473.
 
 265 APPOINTMENT OF RECEIVERS; NOTICE. { 138 
 
 hearing, may be waived by the party affected, and it 
 will be considered as waived if there is an appearance, 
 without resisting the appointment for lack of notice.'** 
 It has been held that the want of notice of the ap- 
 pointment is reviewable upon appeal only from the 
 order granting the receiver.^^'^ 
 
 § 138. Cases Wherein Notice is not Necessary The 
 
 early and leading cases on the subject of notice recog- 
 nized exceptions to the general rule, that a receiver 
 cannot be appointed before the defendant has had an 
 opportunity to be heard in relation to his rights ;^*^ as, 
 where he is out of the jurisdiction of the court or can- 
 not be found; or where there is imminent danger^*'^ 
 of loss, to some of the parties, if the court does not as- 
 sume immediate control of the property. Thus, in case 
 of a mortgage, where the mortgagor was insolvent, and 
 refused to give up the possession, claiming the exist- 
 
 344 Farmers' and Merchants' Bank v. German Nat. Bank, 59 Neb. 
 229, 80 N. W. 820. 
 
 345 Thus the lack of notice was not inquired into on appeal, though 
 the cause was remanded for further consideration, on other grounds:' 
 Voshell V. Heaton, 26 Md. 83. Where the record is silent on the 
 ■subject, the co\irt will presume that proper proceedings were had: 
 Elwood V. First Nat. Bank, 41 Kan, App. 673, 21 Pac. 673; Miller v. 
 Shriner, 86 Ind. 493. It was held in Cummings v. Steele, 6 Idaho, 
 •666, 59 Pac. 15, that a writ of certiorari would lie to annul such 
 appointment: See O'Donnell v. First Nat. Bank, 9 Wyo. 408, 64 Pac. 
 337; In re Moss Cigar Co., 50 La. Ann. 789, 23 South. 544; State v. 
 Union Nat. Bank, 145 Ind. 537, 57 Am. St. Rep. 209, 44 N. E. 585. 
 
 346 People V. Norton, 1 Paige, 17; Verplank v. Mercantile Ins. 
 Co., 2 Paige, 438; and see cases cited in preceding paragraph, ap- 
 proving the principle of the text. 
 
 347 Ashurst V. Lehman, 86 Ala. 370, 5 South. 731; Moritz v. Miller, 
 87 Ala. 331, 6 South. 269; Thompson v. Tower Mfg. Co., 87 Ala. 733, 
 6 South. 928 ("it should be a strong case of emergency, and peril, 
 well fortified by affidavit"). See, also, Whitehead v. Wootens, 43 
 Miss. 523; Bristow v. Home Bldg. Co., 91 Va. 18, 20 S. E. 946 (case 
 •of mortgage, holding it must be an "obvious necessity").
 
 8' 138 EQUITABLE REMEDIES. 265 
 
 ence of a prior lien, and the crops were liable to be 
 wasted, it was held 'that the appointment of a receiver 
 without notice was proper,^*^ The requisite in any 
 case seems to be tliat there must be an urgent necessity 
 for the assumption of control of the property by the 
 court, and this may arise from various circumstances.^*® 
 Where the defendant has acted, or is acting, fraud- 
 ulently,^^"' or is about to remove his property from the 
 jurisdiction, or is himself a non-resident,^^^ the courts 
 
 348 Ashurst V. Lehman, 86 Ala. 370, 5 South 731 ("considering 
 the nature and character of the subject-matter of the controversy,. 
 the facility with which the crops may be disposed of, their liability 
 to waste or destruction, the necessity of their preservation and ap- 
 plication to the mortgage debt, the insolvency of the defendant, and 
 his application of a part of the crop in disregard of the rights of 
 the plaintiff, we are of the opinion that the bill makes a good prima 
 facie case for the appointment of a receiver, and sJiotcs a good reason 
 for failure to give notice of the application"). In the following cases, 
 receivers were appointed on ex parte application in suits to fore- 
 elose chattel mortgages: H. B. Claflin Co. v. Furtick, 119 Fed. 429; 
 Haggard v. Sanglin, 31 Wash. 165, 71 Pac. 711. 
 
 349 State V. Jacksonville, P. & M. R. Co., 15 Fla. 201, approved in 
 Stockton V. Harman, 32 Fla. 312, 13 South. 833; Frickers v. Peters- 
 & Calham Co., 21 Fla. 254, approved in Moyes v. Coiner, 22 Fla. 
 422; Jacksonville Ferry Co. v. Stockton, 40 Fla. 141, 23 South. 557, 
 See, also, Elwood v. First Nat. Bank, 41 Kan. 495, 21 Pac. 673 
 (insolvent bank); Barley v. Gittings, 15 App. D. C. 427 (holding the 
 existence of the emergency not subject to collateral attack). For 
 further illustration see the cases cited in the following paragraphs, 
 where they are collected, in groups, with reference to the class ta 
 which they relate. While the rule of law on the subject is not seri- 
 ously questioned, in its application to the special circumstances of 
 the individual cases, different courts have arrived at opposite con- 
 elusions on what are, apparently, identical states of fact. 
 
 350 Maxwell v. Peters Shoe Co., 109 Ala. 371, 19 South. 412 (case 
 •f fraudulent assignment) ; Heard v. Murray, 93 Ala. 127, 9 South. 
 514 (conveyance in fraud of creditors); Sanborn v. Sinclair, 8 Paige, 
 373 (where the defendant fraudulently withdrew himself from the 
 jurisdiction) ; May v. Rose, Freem. Ch. 703. See, also, Hutchinson 
 T. First Nat. Bank, 133 Ind. 271, 36 Am. St. Rep. 537, 30 N. E. 952. 
 
 8.51 State V. District Court, 22 Mont. 241, 56 Pac. 281 (imminent 
 danger that property would be removed beyond the jurisdiction);. 
 Hendrix v. American Land & Mortgage Co., 95 Ala. 313, 11 South.
 
 267 APPOINTMENT OF EECEIVERS; NOTICE. § 139 
 
 have considered the emergency sufficient to warrant the 
 extraordinary relief of appointing a receiver on an ex 
 parte application. In such cases the allegations of the 
 bill must be such that the court can satisfy itself that 
 a case of emergency really exists, and is not founded 
 on the mere apprehension, or information and belief of 
 the plaintiff.352 
 
 § 139. Same; Tendency to Restriction of Ex Parte Ap- 
 pointments. — The cases of emergency in which the courts 
 have allowed a receiver have, in many instances, become 
 quite well settled, and the frequency of ex parte ap- 
 pointments, without a due consideration of the rights 
 of all parties interested, has led to much well-deserved 
 criticism by some of the courts. Thus, it is said : "The 
 right to appoint receivers vested in the court should 
 only be exercised when it is clearly shown to be neces- 
 sary to prevent the defeat of justice. There has been 
 a tendency in recent years among the courts to appoint 
 receivers almost as a matter of course, if the case as 
 made by the plaintiff's complaint seems to warrant 
 
 such action In our opinion, it is the duty of 
 
 the courts rather to restrict than to extend this grow- 
 
 213 (mortgage); Hooper v. Davies, 70 111. App. 682 (defendant not 
 in the jurisdiction); People v. Norton, 1 Paige, 17; Alford v. Ber- 
 kele, 29 Hun, 633 (notice to a non-resident partner not necessary) ; 
 Grace v. Curtiss, 3 Misc. Eep. 558, 23 N. Y. Supp. 321 (debtor not to 
 be found within the state) ; Henry v. Furbish, 30 Misc. Eep. 822^ 
 62 N. Y. Supp. 247 (but allegation of search is not equal to "not 
 to be found"); Morgan v. Van Kohnstamm, 60 How. Pr. 161 9 
 Daly, 335; O'Connor v. Mechanics' Bank, 54 Hun, 272, 7 N. Y. Supp. 
 380. But see Whitney v. Welch, 2 Abb. N. C. 442, holding that 
 though non-resident, the defendants were entitled to "some" no- 
 tice; and Smith-Dimmick Lumber Co. v. Teague, 119 Ala. 385, 24 
 South. 4, 
 
 352 Verplank v. Mercantile Ins. Co., 2 Paige, 438. "In every 
 ease, where the court is asked to deprive the defendant of his prop- 
 erty without a hearing, or an opportunity to oppose the application,
 
 I 110 EQUITABLE REMEDIES. 2C8 
 
 ing tendency."^^^ The supreme court of Virginia 
 says :^^* "This court has been emphatic in denunciation 
 of decrees and orders entered ex parte, and without 
 hearing the parties interested and affected by such de- 
 crees and orders." And the general tendency of the 
 courts at present seems to be in harmony with such 
 criticism.^^*^ 
 
 § 140. Lack of Notice as Affecting the Appointment in 
 the Various Classes of Cases — In Class I — In those cases 
 where the party entitled to possession is not competent 
 to hold or manage the property during the litigation, 
 notice of the application for the appointment is held 
 to be necessary. Thus the general rule as to notice ap- 
 plies to the property of infants, so that in a suit by the 
 vendor, a receiver to take charge of land sold to the 
 deceased father of minors cannot be validly appointed 
 upon notice to the minor's attorney.^^* 
 
 the particular facts and circumstances which render such a pro- 
 ceeding necessary should be set forth." This would seem to be 
 obvious from the fact that the court, and not the plaintiff, is the 
 one to judge of the sufficient emergency of the case: See Fricker v. 
 Peters, 21 Fla. 254; Moyers v. Coiner, 22 Fla, 422; Jacksonville 
 Ferry v. Stockton, 40 Fla. 141, 23 South. 557; Nusbaum v. Locke, 
 53 111. App. 242. 
 
 353 Eoberts v. Washington Nat, Bank, 9 Wash. 12, 37 Pac. 26; 
 approved, Larsen v. Winder, 14 Wash. 109, 53 Am. St. Rep. 864, 44 
 Pac. 123. 
 
 354 Fredenhien v. Eohr, 87 Va. 764, 13 S. E. 193, 266, citing 
 Underwood v. McVeigh, 23 Gratt. 418, as a notable illustration of 
 the wisdom of the law in setting its face against such orders. 
 
 355 In Illinois it is said (Gilbert v. Block, 51 111. App. 516): 
 "Courts of equity are exceedingly averse to the appointment of re- 
 ceivers upon ex parte applications." See, also, Graver & S. Mfg. 
 
 Co. V. Whitman etc. Mfg. Co., 62 Til. App. 313 (same); Wabash R, 
 Co. V. Dykeman, 133 Ind. 56, 32 N. E. 823; Chicago & S. E. R. Co. 
 V. Cason, 133 Ind. 49, 32 N. E. 827. See Grandin v. Le Bar, 2 N. D. 
 206, 50 N. W. 151 (stating that to warrant an ex parte appointment 
 the case must be such that the plaintiff is reasonably sure to 8U6- 
 «eed). 
 
 858 Hardy v. McClellan, 53 Miss. 507.
 
 269 APPOINTMENT OF RECEIVERS; NOTICE. § 141 
 
 § 141. In Class II — Partnership; Conflicting Claimants of 
 Land. — These are cases where all the parties to the suit 
 are equally entitled to the possession of the disputed 
 property, yet, owing to the controversy, it is not just 
 and proper that either of them should retain possession 
 during the litigation. 
 
 On application for a receiver of a partnership it is 
 necessary to give proper notice, unless some case of 
 emergency be shown ;^^'^ thus where the plaintiff part- 
 ner obtained an ex parte receiver against the defend- 
 ants, who kept the books and managed the partnership 
 finances, the order of appointment was reversed as not 
 being within the authority of the court.^^^ But if the 
 case is such that the court would appoint a receiver 
 with notice, the defendant may waive the notice and 
 the appointment will be valid.^^^ 
 
 In suits between conflicting claimants of land, es- 
 pecially between parties claiming under legal titles, a 
 receiver will not be appointed upon an ex parte applica- 
 tion. Where an action was brought, in equity, to quiet 
 title to real estate, a receiver was appointed to take 
 
 357 Maynard v. Railey, 2 Nev. 313; Webb v. Allen, 15 Tex. Civ. 
 App. 605, 40 S. W. 542 (stating that in partnership cases the same 
 emergency must be shown as in ordinary cases, in order to warrant 
 appointment without notice); Cole v. Price, 22 Wash. 18, 60 Pac. 
 153 (stating the rule as generally applied, but the case was one 
 of emergency); or if one of the partners be a non-resident: Alford 
 T. Berkele, 29 Hun, 633. As to what constitutes sufficient notice, 
 see Allen v. Cooley, 53 S. C. 414, 31 S. E. 634. 
 
 358 Martin v. Blanchin, 16 La. Ann. 237; and where a partner 
 sued for an accounting it was held that he could not have a re- 
 ceiver, nor an injunction restraining defendant from interfering 
 with the firm property, until notice had been given: Larsen v. Winder, 
 14 Wash. 109, 53 Am. St. Rep. 864, 44 Pac. 123. 
 
 359 Longstaff v. Hurd, 66 Conn. 350, 34 Atl, 91; Veith v. Ress, 
 60 Neb. 52, 82 N. W. 116. But see Pressley v, Harrison, 102 Ind. 
 19, 1 N. E. 188, and Pressley v. Lamb, '105 Ind. 171, 4 N. E. 682, 
 to the point that mere consent cannot, in such cases, give the court 
 authority to appoint a receiver.
 
 i 142 EQUITABLE EEMEDIES. 270 
 
 charge of the growing crops. In reversing this order, 
 the court said : "It was an abuse of discretion to make 
 an ex parte order appointing a receiver of the crops 
 sown and planted by defendant, upon land where de- 
 fendant had long resided. The affidavit upon which 
 the order was made showed no exigency which would 
 justify such an arbitrary, harsh proceeding. "2°° 
 
 § 142. In Class III — Persons in Position of Trust or Quasi 
 Trust — Even in those cases where the defendant is 
 holding the property as a trustee or quasi trustee, and 
 is violating his fiduciary duties by misusing, misapply- 
 ing, or wasting the property, and is thereby endanger- 
 ing the rights of the parties beneficially interested, the 
 application for a receiver is not granted without no- 
 tice unless it be shown that the equitable right, sought 
 to be protected, is in imminent danger of loss, or it is 
 probable that the defendant will dispose of the trust 
 ■property if he has notice, and thereby thwart the object 
 of the application. Thus, on a bill by an assignor to 
 charge an assignee, as trustee, for an excessive collec- 
 tion on a life insurance policy, the verified affidavit of 
 the assignee's insolvency, and his conversion of the 
 money into other property, showing clear probability 
 of immediate loss, was the ground on which the ap- 
 plication without notice was sustained.^^^ And so, in 
 a suit against an administrator for a contribution as 
 co-surety due from the deceased, the ground support- 
 ing the bill was the fact that the administrator was 
 rapidly selling the decedent's assets, and had no prop- 
 erty of his own subject to execution, thus making it 
 
 360 Grandin v. Le Bar, 2 N. D. 206, 50 N. W. 151; see Pom. Eq. 
 Jur., § 1333. See, also, Miller v. Shriiier, 86 Ind. 493. 
 
 3C1 Culver v. Guyer, 129 Ala. 602, 29 South. 779; see Pollard v. 
 Southern Fertilizer Co., 122 Ala. 4G9, 25 South. 1G9; and see Sim- 
 mons V. Wood, 45 How. Pr. 262, for a case showing that the mere 
 fact that the application is in regard to trust propertj does not
 
 271 APPOINTMENT OF RECEIVERS; NOTICE. § 143 
 
 evident that the plaintiff would be damaged bj delay; 
 the receiver was therefore allowed, without notice.^*- 
 
 § 143. In Mortgage Foreclosure. — As stated in a pre- 
 vious paragraph, the grounds on which a receiver is 
 allowed in the case of mortgaged property, are gen- 
 erally said to be that (1) the security is inadequate, and 
 (2) the mortgagor insolvent, committing acts of waste, 
 or disposing of the property, or its crops or income, so 
 that there is a depreciation of the value of the property, 
 and security. These combined circumstances have, at 
 times, given rise to such extraordinary emergency as jus- 
 tifies an ex parte application.^^^ Thus where a chattel 
 mortgagor was insolvent, and was squandering the pro- 
 ceeds of the property in riotous living, it was held proper 
 to appoint a receiver without notice.^^^ It appears on 
 principle, as well as authority, that mere wasting of the 
 property, insolvency, or inadequacy of security are none 
 of them alone sufficient to justify an ex parte appoint- 
 ment, but that they must be combined, so as to present 
 a case where there would be imminent danger of loss 
 if the court did not assume control before notice could 
 be properly given.^®^ 
 
 give the court power to appoint a receiver, on an ex parte applica- 
 tion, in cases where a sound discretion would require notice; also, 
 Belknap Sav. Bank v. Lamar Land etc. Co., 28 Colo. 326, 64 Pac. 
 212. 
 
 362 Peter v. Kahn (Ala.), 9 South, 729. 
 
 363 See ante, §§ 93, 95; Ashurst v. Lehman, 86 Ala. 370, 5 South. 
 731; Hendrix v. American Freehold L. & M. Co., 95 Ala. 313, 11 South. 
 213 (allowing a receiver without notice), citing early cases. Soe 
 Gilbert v. Block, 51 111. App. 516 (citing cases) ; Maish v. Bird, 59 
 Iowa, 307, 13 N. W. 298 (allowing receiver without notice). 
 
 364 O'Donnell v. First Nat. Bank, 9 Wyo. 408, 64 Pac. 337. For 
 further instances of appointment ex parte in suits to foreclose chat- 
 tel mortgages, see H. B. Claflin Co. v. Furtick, 119 Fed. 429; Hag- 
 gard V. Sanglin, 31 Wash. 165, 71 Pac. 711. 
 
 ^jcs Gilbreath v. N. B. & T. Co., 121 Ala. 204, 25 South. 5S1; 
 Moyers v. Coiner, 22 Fla. 422, where insolvency was not alleged;
 
 } 144 EQUITABLE EEMEDIES. 272 
 
 § 144. In Creditors' Suits. — In the case of creditors, 
 having a judgment or other lien on the debtor's prop- 
 erty, there must be shown some sufficient reason why 
 notice should not be given, in order to warrant an ex 
 parte appointment. If the debtor, who is disposing of 
 his property, is still solvent, there seems no reason for 
 an appointment without notice f^® or if the one to 
 whom the goods are being fraudulently transferred is 
 able to respond to a legal demand, notice should be 
 given."^" But where an insolvent debtor had fraud- 
 ulently conveyed all his property, and it was being 
 wasted, it was held that no notice was necessary.^^^ If 
 a debtor fraudulently withdraws himself from the jur- 
 isdiction, to evade process, no notice is necessary, but, 
 it is held, the mere fact that he is absent does not give 
 the plaintiff a right to seize his property unless there 
 is danger of immediate loss.^^^ The rights of creditors, 
 
 Hutchison v. First Nat. Bank, 133 Ind. 271, 36 Am, St. Eep. 537, 30 N. 
 E. 952; Haugan v. Netland, 51 Minn. 552, 53 N. W. 873; see Pearson 
 T. Kendrix, 74 Miss. 235, 21 South. 37, which was affected by statute; 
 Fletcher v. Krupp, 35 App. Div. 586, 55 N. Y. Supp. 146; Belknap 
 Sav. Bank v. Lamar Land etc. Co., 28 Colo. 326, 64 Pac. 212. 
 
 366 Moritz V. Miller, 87 Ala. 331, 6 South. 269 (stating if the 
 insolvency had existed, the appointment would have been made ea? 
 parte). 
 
 36T Thompson v. Tower Mfg. Co., 87 Ala. 733, 6 South. 928. 
 
 368 Heard v. Murray, 93 Ala. 127, 9 South. 514. See, also, Peter 
 T. Kahn (Ala.), 9 South. 729 (holding an allegation of deficiency of 
 legal assets sufficient to impart equity to the bill) ; Bank of Florence 
 T. United States Sav. & Loan Co., 104 Ala, 297, 16 South. 110 (show- 
 ing that a simple bank creditor cannot, on the insolvency of the 
 bank, obtain a receiver on ex parte application and thereby im- 
 press the funds with a prior lien); and Smith-Dimmick Lumber Co. 
 T. Teague, 119 Ala. 385, 24 South. 4, that the debtor's insolvency 
 and the fact that he is about to remove his property does not de- 
 prive him of the right to notice; see Maxwell v. Peters Shoe Co., 
 109 Ala. 371, 19 South. 412; State v. Union Nat. Bank, 145 Ind. 537, 
 57 Am. St. Rep. 209, 44 N, E, 585; Blondheim v. Moore, 11 Md. 365, 
 one of the leading cases on the subject. 
 
 369 Sandford v. Sinclair, 8 Paige, 373; and see, for the effect of
 
 273 APPOINTMENT OF EECEIVERS; NOTICE. § M5 
 
 in such cases, are well stated in a leading Mississippi 
 case: "Creditors have rights which should be upheld, 
 so have others, which must not be disregarded," and the 
 appointment of a receiver, in such case, is "never with- 
 out notice to them (the defendants) and an opportunity 
 to be heard, unless there is a satisfactory showing of 
 the necessity of such emergency. "^'^^ 
 
 § 145. In Suits by Stockholders Against Corporation . 
 
 In a suit against a corporation for the appointment of a 
 receiver, in any of those instances where a receiver is 
 proper, the stockholders must conform to the general 
 practice, and give proper notice of the application un- 
 less there is some extremely urgent necessity to jus- 
 tify a departure from the rule. Thus upon a suit by 
 a minority stockholder to obtain a receiver on the 
 ground of unwise management of the property by the 
 corporate directors, the appellate court, in reversing 
 the appointing order, said : "Where notice can be given, 
 it should be given, unless there is imminent danger of 
 loss or great damage, or irreparable injury, or the 
 greatest emergency, or when by the giving of notice the 
 very purpose of the appointment of a receiver would be 
 rendered nugatory."^^^ The leading case in regard to 
 
 a code provision in such cases, Grace v. Curtiss, 23 N. Y. Supp. 321, 
 3 Misc. Rep. 558; Henry v. Furbish, 30 Misc. Rep. 822, 62 N. Y. Supp. 
 247; O'Conner v. Mechanics' Bank, 2 N. Y. Supp. 225, 18 N.. Y. St. 
 Rep. 88, 54 Hun, 272; Leggett v. Sloan, 24 How, Pr. 479 (as to what 
 notice is sufficient); Barnett v, Moore, 20 Misc. Eep. 518, 46 N. Y. 
 Supp. 668 (as to waiver of notice on supplementary proceedings); 
 Corbin v. Berry, 83 N. C. 27 (where only part of the defendants 
 appeared, and it was held sufficient). See Ruffner v. Mairs, 33 W. 
 Va. 655, 11 S. E. 5. 
 
 3-0 Buckley v. Baldwin, 69 Miss. 804, 13 South. 851. 
 
 371 North American L. & T. Co. v. Watkins, 109 Fed. 101, 48 
 C, C. A. 254. See, also, Fisher v. Superior Court, 110 Cal. 129, 42 
 Pac. 561; French v. Gifford, 30 Iowa, 148; State v. Second J. D. Ct., 
 20 Mont. 284, 50 Pac. 852. 
 
 Equitable Remedies, Vol. I — 18
 
 5 146 EQUITABLE KEMEDIES. 274 
 
 the necessity of notice of an application for a receiver 
 was a stockholders' suit against a corporation.^'^^ 
 
 § 146. In Suits by Creditors Against Corporation. — Even 
 in those instances where a receiver may be properly 
 appointed, in suits against a corporation by its cred- 
 itors, in order to protect their rights, the courts are ex- 
 tremely averse to making an appointment without no- 
 tice having been given, and a case of extreme urgency 
 and necessity must be clearly shown in order to obtain 
 an ex parte appointment.^'^^ 
 
 In a case where a receiver was appointed without 
 notice, on the ground that the corporation was indebted 
 to various persons, and had equitable interests that 
 could not be reached by execution, and that other cred- 
 itors had threatened to bring actions, the court, in re- 
 versing the order of appointment, said: "The proceed- 
 ing is drastic. It takes away from the corporation 
 all control of its property, and puts it in the hands of a 
 
 stranger Cases can well be imagined where 
 
 great interests might be sacrificed by a proceeding with- 
 out notice,"^'* 
 
 372 Verplank v. Mercantile Ins. Co., 2 Paige, 438. 
 
 373 Mestier v. Chevallier Pav. Co., 51 La. Ann. 142, 24 South. 
 799 (stating, "But we are aware of no authority for the appointment 
 of a receiver ex parte in a pending suit against a corporation, as 
 appears to have been done in this case). See Gilbreath v. Trust Co., 
 121 Ala. 204, 25 South. 581; Winchester E. L. Co. v. Gordon, 143 
 Ind. 681, 42 N. E. 914; approving Sullivan E. L. & P. Co. v. Blue, 
 142 Ind. 407, 41 N. E. 805. As to creditors of railroad corporations, 
 Whitney v. N. G. & A. R. Co., 66 How. Pr. 436. As to a municipal 
 eorporalion, State vx rel. Brittin v. New Orleans, 43 La. Ann. 829, 9 
 South. 643. 
 
 37 4 Davelaar v. Blue Mound Inv. Co., 110 Wis. 470, 86 N. W. 185 
 ("it is not enough to say that the facts stated show the plaintiff 
 would be entitled to such appointment upon notice, and that after 
 a review of the situation the court has decided to allow the appoint- 
 ment to stand").
 
 275 APPOINTMENT OF EECETVERS; NOTICE. { 147 
 
 § 147. Ex Parte Receivers of Railroads. — The appoint- 
 ment of a receiver to take charge of a railroad and 
 manage it is such an extremely important undertaking, 
 that it will rarely be done vi^ithout notice having been 
 given to the defendant, and an opportunity of defense 
 offered.^'''^ The supreme court of Indiana has said : "In 
 passing upon an application for the appointment of a 
 receiver, it is the duty of a court to scrutinize, not only 
 the rights asserted by the moving party, but the in- 
 juries that may be suffered by the adverse party and the 
 public at large. This is particularly the case where a 
 line of railroad forming part of a system operated as a 
 unit is thereby detached from the main road. In such 
 cases not only the parties to the suit are affected, but 
 a large number of employees are disturbed in their re- 
 lation with their employers; and the general public 
 along the line of the road are liable to be greatly incon- 
 venienced by the disturbance of their shipping facili- 
 ties Deprived of possession, the payment of rent 
 
 on leased lines would cease, and thereby all creditors 
 and stockholders would be affected"; for these reasons 
 the court held that it was error to appoint a receiver 
 ex parte, though expressly stating that it ventured no 
 opinion as to the propriety of an appointment, had 
 proper notice been given.^'^* After commenting on the 
 
 375 Cher V. Excelsior Planting Co., 44 La. Ann. 570, 10 South. 
 792 (construing a statute so that notice is necessary before a corpo- 
 ration can be deprived of its property) ; Merriam v. St. Louis, C. G. 
 & F. S. R. Co., 136 Mo. 145, 36 S. W. 630; St. Louis, K. & S. R. Co. 
 V. Wear, 135 Mo. 230, 33 L. E. A. 341, 36 S. W. 357, 658 (a vacation 
 appointment providing for appearance three months hence, controlled 
 by writ of prohibition) ; Ramsey v. Erie Ry. Co., 7 Abb. Pr., N. S., 
 156; People ex rel. Port Huron & G. E. Co. v. St. Clair Circuit Judge, 
 31 Mich 456 (holding an ex parte appointment, in case of a railroad, 
 "more than irregular, and absolutely void"); Cook v. Detroit etc 
 E. R. Co., 45 Mich. 453, 8 N. W. 74. 
 
 376 Wabash R. R. Co. v. Dykeman, 133 Ind. 56, 32 N. E. 823; ap- 
 proved, Chicago & S. E. E. Co. v. Cason, 133 Ind. 49, 32 N. E. 827.
 
 5 148 EQUITABLE KEMEDIES. 276 
 
 gravity of the situation, the supreme court of Florida, 
 in reversing the appointing order, says : "We can hardly 
 imagine a case where it [the appointment] should be 
 done without notice."^'^'' 
 
 § 148. Selection and Eligibility of Receiver — In General — 
 Not Disturbed on Appeal — In the selection of a person to 
 act as receiver the court acts in the exercise of its ju- 
 dicial discretion, aided by the circumstances of the 
 case and the comparative fitness of the parties pro- 
 posed, choosing such person as it considers will best 
 subserve the rights and interests of all parties to the 
 controversy.^^^ The questions to be considered, gen- 
 erally, are well stated, by a federal case,^'^® as follows: 
 "It [the court] places the property in the hands of a 
 receiver, whose duty it is to preserve it, prevent de- 
 terioration, and so manage it that the rights of its real 
 owner will be prejudiced as little as possible. The 
 person selected for this duty must possess integrity of 
 character, business experience, a knowledge of affairs, 
 a capacity for the examination into and comprehen- 
 sion of accounts, must not be partisan, and must have 
 no pecuniary interest in any one of the classes of cred- 
 itors whose claims come before the court." 
 
 877 State V. Jacksonville P. & M. E. Co., 15 Fla. 201; approved in 
 Stockton V. Harman, 32 Fla. 312, 13 South. 833. 
 
 378 Thomas v. Dawkina, 1 Ves. 452; Morison v. Morison, 4 Mylne 
 
 6 C. 215; Perry v. Oriental Hotel Co., L. R. 5 Ch. 420; People em 
 rel. Gore v. 111. Bldg. & L. Assn., 56 111. App. 642; Robinson v. 
 Dickey, 143 Ind. 214, 42 N. E. 638; Borton v. Brines-Chase Co., 175 
 Pa. St. 209, 34 Atl. 597 (refusing to appoint a foreign receiver); 
 Shannon v. Hanks, 88 Va. 338, 13 S. E. 437. And thus, where it 
 would "facilitate matters" and be to the "advantage of all parties 
 interested," a foreign receiver was appointed: Taylor ▼. Life Assn. 
 of America, 3 Fed. 465; also, Bayne v. Brewer Pottery Co., 82 Fed. 
 S91. 
 
 879 Farmers' L. & T. Co. v. Cape Fear & G. V. B. Co., 62 Fed. 675 
 (and these requisites may be present, though the appointed party ia 
 not a citizen of the appointing jurisdiction).
 
 277 RECEIVERS; SELECTION AND ELIGIBILITY. 8 149 
 
 The selection of a receiver, being a matter addressed 
 to the discretion of the court, is not generally disturbed 
 on appeal. It is stated that " convincing circum- 
 stances, amounting to an overwhelming objection in 
 point of propriety of choice, or something fatal in 
 principle must be shown to secure a reversal by an 
 appellate tribunal."^ 
 
 § 149. Appointment of Person Interested in the Suit. — 
 Accordingly, it is generally stated that a person will 
 not be appointed who is interested in the outcome of 
 the suit, it being considered that such interest will in- 
 terfere with the proper, impartial management of the 
 entrusted property. Thus, "a receiver should have no 
 personal interest in the controversy, or in the property 
 in his charge, which would prevent the exercise of his 
 duties and powers without favor to either party. "^"^^ 
 While the soundness of this rule is undoubted, there are 
 certain cases in which the receiver, for various reasons, 
 has been selected from among the interested parties; 
 as where the parties consented to such appointment,^^^ 
 
 380 People ex rel. Gore v. 111. Bldg. & L. Assn., 56 111. App. 642. 
 See, also, Perry v. Oriental Hotel Co., L. R. 5 Ch. 420; McGilliard t. 
 Donaldsonville etc. Works, 104 La. Ann. 544, 81 Am. St. Rep. 145, 
 29 South. 254; Shannon v. Hanks, 88 Va. 338, 13 S. E. 437; as to when 
 the question may be raised, see Rogers v. Rogers (Tenn. Ch. App.), 42 
 S. W. 70. 
 
 381 Watson V. Bettman, 88 Fed. 825 (refusing to appoint a per- 
 son otherwise well qualified). See, also. Cooper v. Leather Mfg. 
 Nat. Bank, 29 Fed. 161; Bayne v. Brewer Pottery Co., 82 Fed. 391; 
 Atkins V. Wabash St. L. & P. R. Co., 29 Fed. 161; In re Lloyd, L. 
 R. 12 Ch. D. 447; Etowah Min. Co. v. Wills V. M. & M. Co., 106 
 Ala. 492, 17 South. 522 ("a receiver appointed by the court should 
 be capable, honest, impartial, and without personal interest to serve") ; 
 approved in Jordan v. Jordan, 121 Ala. 419, 25' South. 855. 
 
 382 Tait V. Carey (Ind. Ter.), 49 S. W. 50; Iroquois Furnace Co. 
 V. Kimbark, 85 III. App. 399 (where they had previously agreed a« 
 to who should be appointed) ; Hanover Fire Ins. Co. v. Grermania 
 Fire Ins. Co., 33 Hun, 539. "
 
 § 149 EQUITABLE REMEDIES. 278 
 
 or where a receiver is appointed merely as an aid in 
 the settling of an estate, and it is clear that the de- 
 fendant's possession can do no harm,^^^ or in the case 
 of a temporary appointment.^^* And there are cases 
 in which a receiver has been appointed because of his 
 intimate knowledge of the business to be transacted, re- 
 gardless of the fact that he was an interested party. 
 It must, indeed, be a strong case to warrant such ac- 
 tion, but where a business is extremely complicated, 
 and an experienced manager necessary, from a practica! 
 business standpoint, it may be advisable to have it con- 
 tinue in the hands of one acquainted with its manage- 
 ment when he can be controlled by the court.^^^ 
 
 383 Eobinson v. Taylor, 42 Fed. 803. 
 
 384 Finance Co. v. Charleston C. & C. R. Co., 45 Fed. 436. 
 
 385 Fowler v. Jarvis-Conklin Mtg. Co., 63 Fed. 888, stating, on 
 refusing a motion to discharge a receiver who had been an officer 
 of the corporation: "It was well known to the court where they 
 were appointed, that it was under their management of its affairs 
 that the corporation came to grief, and it would be no surprise to 
 the court to learn that their business judgment had not been 
 sound; that their method of management had not been conservative; 
 that they had been over-sanguine, and improvident in investments. 
 But it was apparent to the court then, and it is equally apparent 
 now, that a business of such character, so complicated and intricate, 
 so widely extended, with millions of dollars on small mortgages 
 scattered through several states, requiring prompt attention for 
 collection of interest, maintaining of insurance, and payment of 
 taxes, would be best attended to by receivers who, presumably, 
 were familiar with all its details and with the machinery already 
 established for looking after its interests in hundreds of small towua 
 and hamlets in different states. As receivers there would be no 
 new investments for them to make, calling for the exercise of a 
 
 discretion which had in the past proved to be not always wise 
 
 The mere fact that they had, while officers of the company, been 
 imprudent in investing its money, was no sufficient ground for select- 
 ing strangers entirely unfamiliar with its assets or the machinery 
 for their collection," See, to the same effect, People ex rel. Gore v 
 Illinois Bldg. & L, Assn., 56 El. App. 642, the court selecting an in- 
 terested party because of his "fitness for the position by reason of 
 his occupation, experience and character"; Iroquois Furnace Co. v.
 
 279 RECEIVEES; SELECTION AND ELIGIBILITY. § 150 
 
 § 150. Appointment of Master in Chancery; of Trustee; 
 of Solicitor. — It is generally true that the court will be 
 slow to appoint one as receiver, whose position will 
 be lia!)le to interfere with the proper exercise of his 
 duties. On these grounds a master in chancery has 
 been held to be improperly appointed, the court saying: 
 "Nor will a man be appointed receiver whose position 
 may cause difficulty in administering justice. A mas- 
 ter in chancery, accordingly, was disqualified from be- 
 ing appointed a recei ver, because, being an officer whose 
 duty it might be to pass upon the accounts and check 
 the conduct of the receiver, his appointment was open 
 to objection on very obvious grounds."^^^ On these 
 grounds, it is generally held that a trustee shall not be 
 appointed to the office; the court saying that the trus- 
 tee should be the one to check the accounts of the re- 
 ceiver in favor of the beneficiaries.^*^ But, as in other 
 cases, if the trustee is the most acceptable person avail- 
 able, he may, in special cases, be appointed without 
 compensation.^** 
 
 One of the grounds on which the court refuses to ap- 
 point a solicitor of one of the parties to the office of re- 
 ceiver is, that in the service of his client it may be- 
 come the duty of the solicitor to call the receiver to 
 
 Kimbark, 85 111. App. 399; Balles v. Duff, 54 Barb. 215, a case where 
 mortgagee of mortgaged premises was appointed. For further in- 
 stances of interested parties appointed as receivers, see early cases 
 cited in Taylor v. L. Ins. Co. of Am., 3 Fed. 465, and the eases cited 
 post in regard to receivers of partnership and corporation property. 
 
 386 Ex parte Fletcher, 6 Ves. 427, quoted approvingly in Kilgore 
 V. Hair, 19 S. C. 486; approved in Allen v, Cooley, 60 S. C. 353, 38 
 S. E. 622; Bemeson v. Bill, 62 111. 408. In In re Lloyd, L. E. 12 Ch. 
 D. 447, a solicitor was refused on the same grounds. But this ob- 
 jection does not extend to a clerk of the court, who may be a proper 
 person: Waters v. Melson, 112 N. C. 89, 16 S. E. 918. 
 
 387 Thomas v. Hawkins, 1 Ves. 452, and note 2; Anon., 3 Ves. 
 515; V. Jolland, 8 Ves. 72; Sutton v. Jones, 15 Ves. 584. 
 
 388 Sykes v. Hastings, 11 Ves. 363.
 
 § 151 EQUITABLE REMEDIES. 280 
 
 account,^*^ and the two characters, being incompatible, 
 cannot be united, as it would result in the receiver 
 supervising his own acts.^^^ The interest that a so- 
 licitor has, in favor of the client he represents, has also 
 been urged as a valid reason for his non-appointment, 
 or his removal where he was properly appointed as 
 temporary receiver.^^^ 
 
 § 151. Appointment of Partner; of Creditor. — In the cases 
 where a partnership is placed under the control of the 
 court, one of the partners has, in many instances, been 
 appointed receiver, the fact of his being an interested 
 party not disqualifying him, in the absence of other ad- 
 ditional objections. It has been said: "The courts 
 have, therefore, been inclined, where there has been no 
 actual misconduct, to appoint as receiver the manag- 
 ing partner, or the partner most interested."^^^ But 
 in such case the partner-receiver is allowed no com- 
 pensation for his services.^^' 
 
 While a creditor is pecuniarily interested in the 
 settlement of the controversy, this fact alone does not 
 appear to affect his eligibility to the position of re- 
 
 389 Ex parte Pericke, 2 Mer, 452; Stone v. Wishart, 2 Madd. G7 
 (where the same principle was applied to the next friend of an in- 
 fant). Such appointment is prohibited by statute in some jurisdic- 
 tions: See Cook v. Martin (Ark.), 87 S. W. 625^ 
 
 3'JO Garland v. Garland, 2 Ves. Jr. 137; Merchants' & Mfg. N. Bank 
 of D. V. Kent Cir. J., 43 Mich. 292, 5 N. W. 627 (extending the rule to 
 the partner of the solicitor). 
 
 391 Finance Co. of Penn. v. Charleston C. & C. R. Co., 45 Fed. 436; 
 State Trust Co. of N. Y. v. Nat. L. I. & Mfg. Co., 72 Fed. 575, making 
 him ineligible for permanent appointment: Bak-er v. Admrs. of Backus, 
 32 111. 79. 
 
 392 Todd V. Rich, 2 Tenn. Oh. 107; Blakeney v. Dufour, 15 Beav. 40; 
 Wilson V. Greenwood, 1 Swans. 471; Brien v. Harriman, 1 Tenn. Ch. 
 467, stating: " It is an imusual order and can only be sustained by hia 
 acting without compensation." 
 
 898 Cases cited supra in note 392.
 
 281 RECEIVERS; SELECTION AND ELIGIBILITY. § L52 
 
 ceiver; it is said: "There is no rule of law that a cred- 
 itor cannot be appointed receiver. "^^^ 
 
 § 152. Appointment of Corporation Officer. — In the ap- 
 pointment of a receiver to take charge of the property 
 of a corporation, the general rule is not to appoint 
 those who have been connected with, or responsible for, 
 its unfortunate condition, rendering it necessary for the 
 court to assume its control.^^*^ The reasons, as gen- 
 erally stated, are two: First, the probable lack of busi- 
 ness ability, as explained by a leading federal case in 
 the following language: " But it has been the uniform 
 practice in this circuit to appoint no one receiver of a 
 railroad corporation who has been one of its officers, or 
 who had anything to do with its control prior to its 
 insolvency. It has always been thought that while the 
 insolvency of the company might have been caused by 
 misfortune, and by no default of its direction, never- 
 theless those who were about to lose their property, or 
 had it placed in jeopardy, were entitled, in all reason 
 and fairness, to a new management, though perhaps 
 not a better one. In the one case, there is some hope; 
 in the other, there can be expected but the former re- 
 sult."^*^^ The further reason, that they are frequently 
 
 394 Chamberlain v. Greenleaf, 4 Abb. N. C. 92. See, also, Barber 
 V. International Co. of Mexico, 73 Conn. 587, 48 Atl. 758; Barker v. 
 Wayne Circuit Judge, 117 Mich. 325, 75 N. VV. 886; Roby v. Title 
 G. & T. Co., 166 111. 336, 46 N. E. 1110 (where a receiver's becoming 
 a creditor did not disqualify him ) . 
 
 395 See cases cited in notes 396 and 397. But there seems to be 
 no objection to a corporation, as such, being a receiver : Roby v. Title 
 O. & T. Co., 166 111. 336, 46 N. E. 1110; Barker v. Wayne County Judge, 
 117 Mich. 325, 75 N. W. 886; Barber v. International Co. of Mexico, 
 73 Conn. 587, 48 Atl. 758. 
 
 396 Finance Co. of Penn. v. Charleston C. & C. R. Co., 45 Fed. 
 436 (refusing both a former counsel and an officer as permanent re- 
 ceiyer). See, also, Buck v. Piedmont, etc. Ins. Co., 4 Fed. 849, 4 
 Hughes, 415; People v. Third Avenue Sav. Bank, 50 How. Pr. 22;
 
 § 153 EQUITABLE KEMEDIES. 2S2 
 
 interested parties, while applying particularly to stock- 
 holders, is at times a pertinent objecl^ion to an officer 
 or manager, especially when he happens to occupy both 
 positions; thus it is said: "Receivers should be im- 
 partial between the parties in interest, and stockholders 
 and directors of insolvent corporations should not be 
 appointed, unless the case is exceptional and urgent, 
 and then only on the consent of the parties whose in- 
 terest is to be intrusted to their charge."^^' 
 
 § 153. Same; Officers or Stockholders Appointed from 
 Necessity. — While the rule as to the non-appointment of 
 officers, directors or stockholders to be receivers over 
 the corporate property is well settled by authority, and 
 founded on practical reasons, the courts are confronted, 
 
 Freeholders of Middlesex v. State Bank, 28 N. J, Eq. 166, approved 
 in McCullougli v. Merchants' L. & T. Co., 29 N. J. Eq. 217. 
 
 397 Atkins V. Wabash St. L. & P. R. E. Co., 29 Fed. 161, removing 
 a receiver because of his interest; Olmstead v. Distilling & Cattle 
 Feeding Co. (111.), 69 Fed. 24, stating, when removing a receiver: 
 "I have never felt that an officer of a corporation, whose misfortunes 
 necessitated a receivership, should be ineligible to employment by 
 the court, but this case convinces me that where a corporation is one 
 that covers a vast diversity of conflicting interests, and especially 
 of speculation, a stockholder's appointment to a receivership should 
 be preceded by a most careful and thorough scrutiny into his official 
 and personal antecedents and interests." .... "Indeed, I will 
 knowingly accept no man as a receiver for any corporation who is, 
 or who has been, a speculator in its stock. The private interest of 
 the man is very apt to color, if not to overcome, the duty of the 
 
 official Especially is it the need of the day that officials who 
 
 only come in contact with these affairs by virtue of their office 
 should keep clean of any personal intermeddling that might, even re- 
 motely, tend to affect their official conduct." See, also, Etowah Min. 
 Co. v. Manufacturing Co., 106 Ala. 492, 17 South. 522 (stockholder); 
 Mercantile Trust & D. Co. v. Water Co., Ill Ala. 119, 19 South. 17 
 (but the appointment of such interested person is not void); People 
 ex rel. Gore v. Illinois Bldg. & L. Assn., 56 111. App. 642 (but the 
 stockholder may remove the objection by a bona fide transfer of 
 his stock before appointment); Wiswell v. Starr, 48 Me. 401 (stock- 
 holder).
 
 283 RECEIVERS; SELECTION AND ELIGIBILITY. } 153 
 
 on the other hand, with the fact that in many eases the 
 business of a large corporation is so complicated, and 
 requires such expert and experienced management for 
 its profitable continuance, that it is absolutely neces- 
 sary to retain, as receiver and manager, one who is 
 thoroughly familiar with the workings of the busi- 
 ness.^^^ Thus it was said: "I concede that, when a 
 court assumes control of an insolvent corporation, it is 
 preferable to take it entirely out of the hands of its 
 managing officers. But there is no inflexible rule ren- 
 dering such officers ineligible to appointment as re- 
 ceivers." The president of the corporation was, there- 
 fore, retained as receiver because of his "good manage- 
 ment as president of the company ; his knowledge of its 
 requirements, gained by practical experience; his well- 
 known character as a capable, honest, and fair-minded 
 man."399 
 
 As a receiver is selected with reference to the wel- 
 fare of the property to be handled, it is not an absolute 
 requisite that he be a resident of the jurisdiction where 
 
 398 Fowler v. Jarvis-Conklin M. & F. Co., 63 Fed. 888, 66 Fed. 
 14 (see, also, for the advisability of appointing one interested, ex- 
 perienced receiver, and one disinterested one); to the same effect, 
 Olmstead v. Distiling etc. Co., 67 Fed. 24; see In re Premier Cycle 
 Mfg. Co., 70 Conn. 473, 39 Atl. 800; People ex rel. Gore v. Illinois 
 Bldg. & L. Assn., 56 111. App. 642 (stockholder selected); Davis v. 
 Duncan, 19 Fed. 477; Houston v. Redwine, 85 Ga. 130, 11 S. E, 662; 
 Moran v. Wayne Circuit Judge, 125 Mich. 6, 83 N. W. 1004; Covert 
 V. Rogers, 38 Mich. 368; Gypsum Plaster & Stucco Co. v. Adsit, 105 
 Mich. 498, 63 N. "W. 518. See, also. Bowling Green Trust Co. v. Vir- 
 ginia Pass. & Power Co., 133 Fed. 186. 
 
 399 Ralston v. Washington & C. R. Ry. Co., 65 Fed. 557. See 
 McGilliard v. Donaldsonville etc. Works, 104 La. Ann. 544 81 Am. 
 St. Rep. 145, 29 South. 254; stating that, "Ordinarily, the fact that 
 a receiver has an interest is a recommendation that he will safeguard 
 
 the interests of his fellow stockholders as well as his own 
 
 We will not assume, without testimony, that the one appointed is 
 not a proper person, exclusively because he is a stockholder,"
 
 i 153 EQUITABLE EEMEDIES. 28-1 
 
 appointed, if he is a thoroughly desirable person on 
 other grounds.*"" 
 
 400 Bayne v. Brewer Pottery Co., 82 Fed. 391 (though the non- 
 residence occasion an additional expense); see Farmers' L. & T. Co. 
 V. Cape Fear & G. V. E. Co., 62 Fed. 675; Phinizy v. Augusta & K. 
 K. Co., 56 Fed. 273 (for recognition of foreign receiver on the ground 
 of comity); Borton v. Brines-Chase Co., 175 Pa. St. 209, 34 Atl. 597, 
 (but not where it will interfere with the interests of citizens of the 
 state); see Chamberlain v. Greenleaf, 4 Abb. N. C. 92, stating that 
 a non-resident should not be appointed. 
 
 See, also, post, chapter XI, "Foreign and Ancillary Eeceiverg."
 
 THE BECEiVEK'b POfcitSESSlON. 
 
 i 154 
 
 CHAPTER IV. 
 
 THE RECEIVER'S POSSESSION; AND CONFLICTING 
 APPOINTMENTS. 
 
 ANALYSIS. 
 
 The receiver's possession. 
 
 The receiver's possession is that of the court. 
 
 Receiver's possession is subject to existing liens. 
 
 Same; instances of prior liens protected. 
 
 Same; receiver's right to possession as against prior 
 
 lienor. 
 Receiver's title vests from order of appointment. 
 Contra; title dates from qualification, or from the time 
 
 when he takes actual possession. 
 Vesting of title in supplementary proceedings. 
 How the receiver may obtain possession of property 
 
 withheld. 
 Interference with receiver's possession. 
 Claimant must apply to the court. 
 Interference with receiver a contempt of eourt. 
 His possession protected by injunction. 
 Attachment against receiver. 
 Property in receiver's possession not subject to sale 
 
 under execution. 
 Same; illustrations; execution sales under lubsequent, 
 
 and under prior, liens. 
 Property in receiver's possession cannot be seized for 
 
 taxes. 
 Other forms of interference; strikes; arrest; etc. 
 Conflicting appointments of receivers. 
 
 Ǥ 
 
 154-169. 
 
 
 § 154. 
 
 
 S 155. 
 
 
 S 156. 
 
 
 fi 157. 
 
 
 S 158. 
 
 
 1 159. 
 
 
 § 160. 
 
 
 i 161. 
 
 <9 
 
 162-169. 
 
 
 i 162. 
 
 
 I 163. 
 
 
 S 164. 
 
 
 S 165. 
 
 
 § 166. 
 
 
 i 167. 
 
 
 1 168. 
 
 
 f 169. 
 
 
 1 170. 
 
 § 154. Keceiver's Possession is that of the Court. — A re- 
 ceiver is not a mere agent of the complainants, in the 
 suit in which he is appointed. He represents the court 
 for all the parties interested in the property, and acts, 
 instead of the court, for the benefit of all interested 
 parties. He is the "servant of the court" His posses- 
 sion is the possession of the court; and any attempt to
 
 ^ 154 EQUITABLE REMEDIES. 286 
 
 interfere with it, without leave of court, is a contempt.* 
 It is said : "The appointment of a receiver does not de- 
 termine any right or affect the title of either party in 
 any manner whatever. He is the officer of the court, 
 and truly the hand of the court. His holding is the 
 holding of the court from him from whom possession 
 was taken. He is appointed on behalf of all parties 
 and not on behalf of the plaintiff or of one defendant 
 only."2 
 
 It is frequently stated that "the possession of the re- 
 ceiver is the possession of the party ultimately held 
 to be entitled to the property." A federal court, in com- 
 
 1 Morrell v. Noyes, 56 Me. 458, 96 Am. Dee. 486. See, also, Chicago 
 Union Nat. Bank v. Bank of K. C, 136 U. S. 223, 10 Sup. Ct. 1013, 34 
 L. ed. 341, stating: "A receiver derives his authority from the act 
 of the court appointing him, and not from the act of the parties at 
 whose suggestion or by whose consent he is appointed; and the utmost 
 effect of his appointment is to put the property from that time into 
 his custody, as an officer of the court, for the benefit of the party 
 ultimately proved to be entitled, but not to change the title or even 
 the right of possession in the property." See, also, Naumburg v. 
 Hyatt, 24 Fed. 898; Southern Granite Co. v. Wadsworth, 115 Ala. 
 570, 22 South. 157; In re Receivership of New Iberia Cotton Mill Co., 
 109 La. 875, 33 South. 903 (receiver is agent of court, and property is 
 in custodia Icgis); Day v. Postal Tel. Co., 66 Md. 354, 7 Atl. 608; 
 Mays V. Rose, Freem. Ch. (Miss.) 703; Moore v. Mercer Wire Co. (N. 
 J.), 15 Atl. 305, 737; Keeney v. Home Ins. Co., 71 N. Y. 396, 27 Am. 
 Rep. 60; Skinner v. Maxwell, 68 N. C. 400; Robinson v. Atlantic & G. 
 W. Ry. Co., 66 Pa. St. 160. 
 
 2 Ellicott V. Warford, 4 Md. 85; quoted approvingly in How- 
 ell V. Hough, 46 Kan, 152, 26 Pac. 636. In Bell v. American 
 Protective League, 163 Mass. 558, 47 Am. St. Rep. 481, 40 N. 
 E. 857, 28 L. R. A. 452, the court states: "A receiver is merely 
 a ministerial officer of the court, or, as he is sometimes called, the 
 hand of the court. The title to the property does not change; and 
 if he is required to take property into his custody, such custody is 
 that of the court." But it seems there is such "special property" 
 vested in a receiver that an indictment may be properly laid, desig- 
 nating him as the owner, where property in his charge has been the 
 subject of larceny; the court of Iowa has so held: State v. Rivers, 60 
 Iowa, 381, 13 N. W. 73, 14 N. W. 738.
 
 287 THE EECEIVEE'S POSSEbSION. S 155 
 
 meriting on the expression, says such words are cer- 
 tainly "not intended to be authority for the proposition 
 that the intervention of the court operates to change 
 the rights of any parties to the suit, whether they were 
 originally parties, or made such by subsequent order of 
 the court. The property is taken by the court, and is 
 put into the hands of its officer to hold for the benefit of 
 ^whom it may concern.' He holds and manages it for 
 the benefit of the party to whom the court may ulti- 
 mately decide it belongs, but it would be a perversion of 
 the whole theory of ciistodia legis if the mere appoint 
 ment of a receiver were itself determinative of that 'ulti- 
 mate decision.' "^ 
 
 § 155. Receiver's Possession Subject to Existing Liens. — 
 It is well established that where a court takes posses- 
 sion of the property of a party, and appoints a receiver, 
 to administer the trust for the benefit of all interested 
 parties, the court receives such property impressed with 
 all existing rights and equities, and the relative rank 
 of claims and the standing of liens remain unaffected 
 by the receivership. Every legal and equitable lien 
 upon the property is preserved with the power of en- 
 forcing it.^ "The receivership does not destroy any 
 
 3 Central Trust Co. v. Worcester Cycle Mfg. Co., 93 Fed. 712, 
 35 C. C. A. 547 (citing the following cases in which the form of 
 words discussed was used: Wiswall v. Sampson, 14 How. 52, 14 
 L. ed. 322; Booth v. Clark, 17 How. 322, 15 L. ed. 164; Chicago 
 Union Bank v. Kansas City Bank, 136 U. S. 223, 10 Sup. Ct. 
 1013, 34 L. ed. 341). See, also, Beverley v. Brooke, 4 Gratt. 187, 
 208. That the appointment of a receiver of real property does not 
 so alter possession of the estate in the person who is ultimately found 
 to have been entitled thereto as to prevent the running of the statute 
 of limitations, see Anonymous, 2 Atk. 15. 
 
 4 American Trust & Sav. Bank v. McGettigan, 152 Ind. 582, 71 
 Am. St. Kep. 345, 52 N. E. 793. In In re Binghamton General Elec- 
 tric Co., 143 N. T. 263, 38 N. E. 297, the court says: "It is obvious 
 that every lien upon the property of a corporation resting upon valid
 
 I 156 EQUITABLE REMEDIES. 289 
 
 liens that may have been acquired before the appoint- 
 ment."^ It is said that "it is as much the duty of a re- 
 ceiver, in administering an estate, to protect valid pref- 
 erences and priorities, as it is to make a just distribu- 
 tion" of the intrusted property.® 
 
 § 156. Same; Instances of Prior Liens Protected. — The 
 application of the rule is well recognized in the case of 
 liens of creditors of insolvent corporations over which 
 receivers have been appointed.''^ Thus, it is said : 
 "Where the receiver of this court, under authority of 
 statute and under the direction of the court, has as- 
 
 agreement or process before the appointment of a receiver, the lienor 
 being lawfully in possession, must be preserved with the right of 
 enforcement, unless courts and legislatures are to override the vested 
 rights of creditors." See, also, In re North American Gutta Percha 
 Co., 17 How. Pr. 549, 9 Abb. Pr. 79; Lowenberg v. Jefferies, 74 Fed. 
 385 (the proceeds should be paid in the order of priority); Von 
 Roun V. Superior Court, 58 Cal. 358; Smith v. Sioux City Nursery etc. 
 Co., 109 Iowa, 51, 79 N. W. 457; Battery Park Bank v. Western Caro- 
 lina Bank, 127 N. C, 432, 37 S. E. 461; Hays v. Lycoming Fire Ins. Co^ 
 99 Pa. St. 621. See, post, chapter IX, as to "Preferred Claims." 
 
 5 Quoted in Garden City Banking & Trust Co. v. Geilfuss, 86 Wis. 
 612, 57 N. W. 349, from Ellis v. Vernon Ice, Light & Water Co., 
 86 Tex. Sup. 109, 23 S. W. 858. See, also. Page v. Supreme Lodge,. 
 Knights & Ladies of Protection, 161 Mass. 384, 37 N. E. 369. 
 
 6 American Trust & Sav. Bank v. McGettigan, 152 Ind. 582, 71 
 Am. St. Rep. 345, 52 N. E. 793. A receiver cannot claim rents against 
 an assignee thereof under an assignment to secure payment of claim: 
 Brownson v. Roy, 133 Mich. 617, 95 N. W. 710. 
 
 7 McRae v. Bowers Dredging Co., 86 Fed. 344, states: "Where a 
 court of equity takes control and custody of the assets of an insolvent 
 corporation, it does not assume to destroy existing liens, or to divest 
 the rights of lien creditors. The court assumes the burden of pro- 
 tecting as far as may be the rights of all parties having interests. 
 Therefore, it will not surrender property in its custody, to be disposed 
 of by process under other courts, but will, when necessary to enable 
 ereditors to collect their dues, order a sale of the assets, and distribute 
 the funds according to the rights and priorities of the owners and 
 ereditors": Risk v. Kansas T. & Bkg. Co., 58 Fed. 45; Talledega 
 Mercantile Co. v. Jenifer Iron Co., 102 Ala. 259, 14 South. 743 (hold- 
 ing that the court may grant leave to the creditor to proceed directly 
 against the receiver).
 
 289 THE RECEIVEE'S POSSESSION. fi 156 
 
 sumed the possession of all the personal property of 
 the insolvent corporation, this court is bound to give 
 effect to liens which existed as liens on the property 
 when its receiver took possession."^ 
 
 The right of the lienor to protection would seem to 
 be assured from the fact that "the receiver is the hand 
 of the law, and the law conserves and enforces rights — 
 never destroys them."^ And it is not necessary that 
 the lien be created in any particular manner, so long as 
 there has been a valid right established in favor of the 
 lienor. Thus, the filing of a creditor's bill has been 
 held to create a sufficient lien.^*^ In the case of an at- 
 tachment made before the application for the appoint- 
 ment of a receiver, the court of Massachusetts said: 
 "We are satisfied that under the laws of Massachusetts 
 an attachment is a lien or encumbrance upon the prop- 
 erty attached. It fastens itself upon the property, and 
 whoever takes the property takes it cum onere, .... 
 and, though the assets pass into the hands of receivers, 
 they take with all the liens thereon, and an existing at- 
 
 8 Duryee v. United States Credit System Co., 55 N. J. Eq. 311, 37 
 Atl. 155; the court cited Doane v, Millville Ins. Co., 45 N. J. Eq. 
 274, 282, 17 Atl. 625, and continued: "And effect is generally given 
 to such statutory liens, in practice, either by providing for their 
 payment by the receiver as preferred claims, or by allowing the 
 claimant, on application to the court, to enforce his lien in the 
 courts, and by the proceedings in which they would clearly be en- 
 forceable had no receiver been appointed, and making the receiver 
 
 a party to such further proceedings, where this is necessary 
 
 And where the property is in the control of the officer of the court, 
 expressly subject to the lien, the fact that the lien cannot be other- 
 wise made effective than by the action of this court is no sufficient 
 reason, as it seems to me, for holding that it is not valid." 
 
 9 Von Eoun v. Superior Court, 58 Cal. 358. 
 
 10 King V. Goodwin, 130 111, 102, 17 Am. St. Eep. 277, 22 N. E. 
 533. But see Battery Park Bank v. Western Carolina Bank, 127 N. 
 C. 432, 37 S. E. 461, stating it does not extend to "tangible personal 
 property"; Davenport v. Kelly, 42 N. Y. 193. 
 
 Equitable Eemedies, Vol. 1—19
 
 J 156 EQUITABLE EEMEDIES. 290 
 
 tacliment is a lieii."^^ And where, after the acquire- 
 ment of a judgment lien, a receiver was appointed at 
 the suit of creditors, tlie judgment creditor was allowed 
 to enforce his lien against the receiver, although he 
 might have intervened in the suit in which the receiver 
 was appointed.^ 2 
 
 It is held that where a sheriff makes a levy under an 
 execution before the appointment of a receiver, the re- 
 ceiver takes the property subject to the lien thus cre- 
 ated.^^ It is said: "If the sheriff had made a levy on 
 the property which subsequently came into the hands 
 of the receiver, it is for him to enforce that levy. He 
 is entitled to collect the money and apply it on the exe- 
 cution if the levy was made. It is his duty to do so."^* 
 
 11 Hubbard v. Hamilton Bank, 7 Met. 340; quoted with approval in 
 Arnold v. Weimer, 40 Neb. 216, 58 N. W. 709. See, also, Kittridge 
 V. Osgood, 161 Mass. 384, reported snb nom. Page v. Supreme Lodge, 
 37 N. E. 369; Lowenberg v. Jefferies, 74 Fed. 385; Koseboom v. Whit- 
 taker, 132 HI. 81, 23 N. E. 339; Eunner v. Scott, 150 Ind, 441, 50 
 N. E. 479 (partnership receiver) ; Smith v. Sioux City Nursery etc. 
 Co., 109 Iowa, 51, 79 N. W. 457; Minchin v. Second Nat. Bank, 36 
 N. J. Eq. 436; Hays v. Lycoming F. Ins. Co., 99 Pa. St. 621 (garnish- 
 ment); Von Eoun v. Superior Ct., 58 Cal. 358 (a lien on personal prop- 
 erty, which ordinarily depends on the retention of possession is not 
 destroyed by the receiver's taking possession). 
 
 12 Talladega Mercantile Co. v. Jenifer Iron Co., 102 Ala. 259, 14 
 South. 743. See, also, Gere v. Dibble, 17 How. Pr. 31; Battery Park 
 Bank v. Western Carolina Bank, 127 N. C. 432, 37 S. E. 461. But 
 see Doane v. Millville, M., M. & F. Ins. Co., 45 N. J. Eq. 274, 17 Atl. 
 625, stating, "the mere fact that the debt has been put into a judg- 
 ment will not secure any preference to the creditor." Approved in 
 Van Steenburgh v. Porsie Button Co. (N. J.), 34 Atl. 135, holding that 
 the delivery of an execution to the sheriff did constitute a lien, though 
 he had made no levy. 
 
 13 Van Alstyne v. Cook, 25 N, Y. 489; Becker v. Torrance, 31 N. 
 Y. 631; Davenport v. Kelly, 42 N. Y. 193 (a levy on personalty is 
 not defeated by another creditor's filing a "creditor's bill"); In re 
 Pond, 21 Misc. Eep. 114, 46 N. Y. Supp. 999. 
 
 14 In re North American Gutta Percha Co., 17 How. Pr. 549, 9 Abb. 
 Pr. 79 ("if the officer of this court has taken possession of the prop- 
 erty thus levied on, and sold the same, he is bound to account to the
 
 291 THE RECEIVER'S POSSESSION. § 155 
 
 It is well settled that an existing lien of a state or 
 municipality for the payment of taxes is neither lost 
 nor impaired by the transfer of the property to the pos- 
 session of a receiver ; "he but takes the property for the 
 benefit of all lienholders and creditors."^ ^ And Avhile 
 a landlord cannot exercise the right of distraint for 
 rent, because of the manual possession of the goods by 
 the court's appointee, he necessarily has a lien for the 
 payment which attaches to the fund raised by the sale 
 which the court ordered.^^ So a mechanic's lien cannot 
 be impaired by the subsequent appointment of a re- 
 ceiver.^'^ As the receiver takes the property subject to 
 all equities good against the one from whom he takes, 
 he is bound by an existing chattel mortgage or condi- 
 tional sale,^® It is said a receiver "is trustee for the 
 whole body of general creditors, and takes the prop- 
 erty subject, not only to all legal liens, but to all equita- 
 ble liens as well" j^*^ he is "affected with all claims, liens 
 
 sheriff for the proceeds"); and cases cited, supra, in note 13; In re 
 Muehlfeld & Haynes Piano Co., 12 App. Div. 492, 42 N. Y. Supp. 802, 
 26 Civ. Pr. Rep. 90 (an execution on a judgment where the action was 
 commenced before the appointment of a receiver, is superior to the 
 receiver's right). 
 
 15 Union Trust Co. v. Weber, 96 111. 346 ("we are wholly at a loss 
 to see any reason for holding that the lien of the state or municipal- 
 ities for taxes should be lost or defeated We apprehend, no 
 
 one will or can contend that when the state or municipalities have a 
 
 lien on property for taxes, it is not paramount to all other liens 
 
 The receiver is not a purchaser, but he receives the possession and 
 title, when transferred to him, to hold for all parties in interest"). 
 See, also, Duryee v. United States Credit System Co., 55 N. J. Eq. 
 311, 37 Atl. 155. 
 
 16 Lane v. Washington Hotel Co., 190 Pa. St. 230, 42 Atl. 697. See 
 Woodward v. Winehill, 14 Wash. 394, 44 Pac. 860, holding that notice 
 to quit, served on a tenant, is binding on a subsequently appointed re- 
 ceiver. 
 
 17 Totten & Hogg I. & S, F. Co. v. Muncie Nail Co., 148 Ind. 372, 
 47 N. E. 703. 
 
 18 Bates v. Wiggin, 37 Kan. 44, 1 Am. St. Eep. 234, 14 Pac. 442. 
 
 19 Miller v. Savage, 60 N. J. Eq. 204, 46 Atl. 632; In re Olzendam
 
 5 157 EQUITABLE EEMEDIES. 292 
 
 and equities which would affect the debtor if he himself 
 were asserting his interest in the property."^" And a 
 receiver can therefore obtain no title to property where 
 the original vendor reserved his title by a clause in the 
 bill of sale of the chattels;-^ neither can he supersede a 
 prior valid assignments^ 
 
 § 157. Same; Receiver's Right to Possession as Against 
 Prior Lienor. — The question of the prior lienholder's right 
 to enforce his lien by process is one on which the cases 
 are far from uniform; this question is discussed else- 
 where.s^ A number of decisions have been rendered on 
 the analogous subject of the receiver's right to posses- 
 sion, as against the holder of a prior lien, when such 
 lien carries with it the possession of the property. It 
 is held that the receiver cannot replevy goods upon 
 which execution has been levied prior to the appoint- 
 ment, when the defendant's superior right is so clear 
 that the court of chancery would not have ordered the 
 property to be delivered to the receiver ;-^ that personal 
 property, possession of which had been taken by the 
 sheriff under attachment from a state court, cannot 
 rightfully be interfered with by a federal receiver while 
 such possession continues, while a prior attachment of 
 
 Co., 117 Fed. 179 (subject to equitable lien). See, also, as pertaining 
 to partnership receivers, Hoifman v. Schoyer, 143 111. 598, 28 N. E. 
 823; Chicago Title & Trust Co. v. Smith, 158 111. 417, 425, 41 N. E. 
 1076. 
 
 20 Eyder v. Eyder, 19 K. I. 188, 32 Atl. 919 (subject to mortgagee's 
 equity to have a mortgage reformed). 
 
 21 Sayles v. Nat. Water Purifying Co., 16 N. Y. Supp. 555, 62 
 Hun, 618. 
 
 22 Garden City Bank etc. Co. v. Geilfuss, 86 "Wis. 612, 57 N. W. 
 349; Chicago Title & Trust Co. v. Smith, 158 HI. 417, 425, 41 N. E. 
 1076; Brownson v. Eoy, 133 Mich. 617, 95 N. W. 710 (assignment of 
 lents). 
 
 23 See post, §§ 166, 167. 
 
 24 Conley v. Deere, 11 Lea (Tenn.), 274, 279.
 
 293 THE KECEIVER'S POSSESSION. § 15S 
 
 real property, not conferring possession, actual or con- 
 structive, does not preclude a lawful seizure of such 
 property by a federal receiver;-^ that when personal 
 property is in the custody of a sheriff under a writ of 
 attachment, a court of chancery cannot acquire juris- 
 diction of the same property, so as to take it from the 
 possession of the sheriff into the custody of its re- 
 ceiver.2^ The subject has received much attention 
 from the supreme court of Washington, which holds 
 that when creditors of a corporation have attached its 
 property, and maintained their lien by the actual pos- 
 session of the sheriff, a receiver appointed in a suit by 
 a stockholder, to which the attachment creditors were 
 not parties, has no right of possession of the attached 
 property, but the sheriff must keep and dispose of it 
 under his writ.^'^ On the other hand, it is held in Wis- 
 consin that proceeds of an execution sale in the hands 
 of the sheriff, though in law the creditor's, may be se- 
 questered, on motion of the other creditors of the debtor 
 corporation, into the hands of a subsequently appointed 
 receiver, on an ex parte showing that the confessed 
 judgments on which the executions were issued were in- 
 tended as a fraudulent and illegal preference.^^ 
 
 § 158. Receiver's Title Vests from Order of Appointment. 
 The general rule is well established that the title and 
 
 25 In re Hall & Stilson Co., 73 Fed. 527, citing many cases. 
 
 26 Ford V. Judsonia Mercantile Co., 52 Ark. 426, 20 Am. St. Eep. 
 192, 12 S. W. 876, 6 L, E. A. 714; Pease v. Smith, 63 111. App. 411. 
 
 27 State V. Superior Court of Chehalis County, 8 "Wash. 210, 35 Pac. 
 1087, 25 L. R. A. 354, 38 Cent. L. J. 341 (but see the strong 
 dissenting opinion of Dunbar, C. J.); State v. Superior Court of Sno- 
 homish County, 7 Wash, 77, 34 Pac. 430; State v. Graham, 9 Wash. 
 528, 36 Pac. 1085; but the doctrine of these cases seems to be mate- 
 rially limited by the later case of State v. Superior Court of King 
 County, 11 Wash. 63, 39 Pac. 244, 
 
 28 Ford V. Plankinton Bank, 87 Wis. 363, 58 N. W. 766.
 
 5 158 EQUITABLE REMEDIES. 294 
 
 right of a receiver relate to tlie time of the order ap- 
 pointing him. It is said: "The appointment of a re- 
 ceiver is completed at the farthest by the filing and en- 
 tering of the order appointing him, although before he 
 proceeds to the discharge of his duties he may be di- 
 rected to execute and file a proper bond. When that 
 is done, he can take actual manual possession of the 
 property, and his title relates back to the time of his ap- 
 pointment."^^ Accordingly, a levy by an officer, after 
 appointment and before the receiver has filed his bond, 
 will create no lien,^*^ and may be enjoined f^ and a valid 
 judgment, obtained under these circumstances, affords 
 no ground for seizing the property on execution, or 
 creating a lien.^^ A federal court has said : "If the ju- 
 
 29 In re Schuyler Steam Towboat Co., 136 N. Y. 169, 32 N. E. 623, 
 20 L. E, A. 391. See, also, In re Christian Jensen Co., 128 N. Y. 550, 
 28 N. E. 665 ("the moment he was appointed he became an officer of 
 the court, and from that time the property of the corporation was 
 in ciistodia legis, and the court had the power to preserve and protect 
 it. While the receiver could not interfere with the property of the 
 corporation until he filed his bond, yet after he filed his bond his title 
 related back to the date of his appointment," and the property, there- 
 fore, was not subject to replevin) ; In re Lenox Corporation, 57 App. 
 Div. 515, 68 N. Y. Supp. 103; In re Muehlfeld & Haynes Piano Co., 
 12 App. Div. 492, 42 N. Y. Supp. 802, 26 Civ. Pr. Eep. 90; Dickey v. 
 Bates, 13 Misc. Eep. 489, 35 N. Y. Supp. 525; Van Alstyne v. Cook, 
 25 N. Y. 489; Steele v. Sturges, 5 Abb. Pr. 442; Eutter v. Tallis, 5 
 Sandf. 610; Mosher v. Supreme Sitting of O. T. H., 88 Hun, 394, 34 
 N. Y. Supp. 816; Maynard v. Bond, 67 Mo. 315; Pope v. Ames, 20 
 Or. 199, 25 Pac. 393; Fogg v. Providence Lumber Co., 15 E. I. 15, 23 
 Atl. 31; Clinkscales v. Pendleton Mfg. Co., 9 S. C. 318; Eegenstein 
 V. Pearlstein, 30 S. C. 192, 8 S. E. 850; Battery Park Bank v. Western 
 Carolina Bank, 127 N. C. 432, 37 S. E. 461. 
 
 30 Ex parte Evans, L. E. 13 Ch. D. 252; In re Lenox Corporation, 
 57 App. Div. 515, 68 N. Y. Supp. 103; Atlas Bank v. Nahant Bank, 
 23 Pick. 480 (the title relates to the filing of the bill "or at least to 
 the injunction," issued to prevent the transfer of property). 
 
 31 In re Schuyler Steam Towboat Co., 136 N. Y. 169, 32 N. E. 623, 
 20 L. E. A. 391. 
 
 32 Connecticut Eiver Banking Co. v. Eockbridge Co., 73 Fed. 709; 
 Temple v. Glasgow, 80 Fed. 441, 42 U. S. App. 417, 25 C. C. A. 540.
 
 295 THE EECEIVER'S POSSESSION. § 158 
 
 risdiction of the court over the property did not attach 
 contemporaneously with the order appointing a re- 
 ceiver, the purpose of the court in appointing a receiver 
 might be defeated by the failure of the person appointed 
 receiver to accept the position, or his inability to give 
 the bond required, or, in the interim between the order 
 appointing a receiver and his giving the required bond, 
 a creditor might obtain an advantage by securing a 
 confession of judgment, and in innumerable other 
 ways."^^ 
 
 It is sometimes stated that the title, upon proper 
 bond being given, relates to the date of the filing of the 
 bill ; that "the filing of the bill and service of process is 
 an equitable levy on the property, and pending the pro- 
 ceedings such property may properly be held to be in 
 
 gremio legis In such cases the commencement of 
 
 the suit is sufficient to give the court whose jurisdiction 
 is invoked the exclusive right to control the prop- 
 erty."^* In ordinary cases, however, the rule is as 
 
 See, also, Battery Park Bank v. Western Carolina Bank, 127 N. C. 
 432, 37 S. E. 461. 
 
 33 Connecticut River Banking Co. v. Rockbridge Co., 73 Fed. 709; 
 affirmed in Temple v. Glasgow, 80 Fed. 441, 42 XJ. S. App. 417, 25 
 C. C. A. 540, stating: "Generally the better rule would seem to be 
 that, when the court has jurisdiction, the order appointing a general 
 receiver for the purpose of liquidation is an adjudication which oper- 
 ates as a sequestration of the property of the corporation, .... and 
 in such cases to hold that the rights of parties are affected by the 
 accident of whether the receiver is able on the instant to proffer his 
 bond for approval is illogical." 
 
 34 Illinois Steel Co. v. Putnam, 68 Fed. 515, 15 C. C. A. 556, citing 
 Adams v. Trust Co., 66 Fed. 617, 15 C. C. A. 1, and supporting, as not 
 within the principle stated, a transfer of stock made pending a mo- 
 tion for the appointment of a receiver: Merrill v. Commonwealth 
 Mut. Fire Ins. Co., 166 Mass. 238, 44 N. E. 144. In Texas the rule 
 appears to be that the title, as against attachments, relates back 
 to the time when the appointing court took jurisdiction of the 
 application, "by acting upon it in such a manner as to indicate that 
 he had determined to investigate the matter and might at some
 
 § 159 EQUITABLE REMEDIES. 29G 
 
 stated above.^^ The supreme court of Iowa lias said: 
 "It is very plain that the commencement of the proceed- 
 ings for the appointment of the receiver did not subject 
 the property of the gas company to the custody of the 
 law and bring it under the authority of the receiver."^^ 
 
 § 159. Contra; Title Dates from Qualification, or from 
 the Time When He Takes Actual Possession. — The general 
 rule has been expressly departed from in California in 
 the case of a receiver of mortgaged realty ;^'^ and in 
 Maryland, actual possession by the receiver is de- 
 manded before the property is considered under the 
 control of the court. It is said: "Their mere appoint- 
 ment did not, as we think, place the property, as against 
 
 future date appoint a receiver": Worden v. Pruter (Tex. Civ. App.), 
 88 S. W. 434; Eissner v. Railway Co., 89 Tex. 656, 59 Am. St. Eep. 
 84, 36 S. W. 53, 33 L. E. A. 171. 
 
 35 In re Muehlfeld & Haynes Piano Co., 12 App. Div. 492, 42 N. Y. 
 Supp. 802, 26 Civ. Pr. Eep. 90; and cases cited above. In Smith v. 
 Sioux City Nursery & Seed Co., 109 Iowa, 51, 79 N. W. 457, the court 
 says: ''The fact that the proceedings were begun for the appoint- 
 ment of a receiver did not suspend the right of creditors to attach, 
 nor that of the company to assign its accounts as security for the 
 payment of its debts, if in doing so it acted in good faith. While 
 there is some conflict in the authorities as to whether property of the 
 debtor passes in custodia legis at the time the receiver is appointed, 
 or when he assumes possession, all agree that the jus disponendi is 
 not affected by the application, and continues, at least, till the mak- 
 ing of the order or appointment." See, also, Cook v. Cole, 55 Iowa, 
 72, 7 N. W. 419; Van Alstyne v. Cook, 25 N. Y. 489. 
 
 36 Cook V. Cole, 55 Iowa, 72, 7 N. W. 419. 
 
 37 Bank of Woodland v. Heron, 120 Cal. 614, 52 Pac. 1006 (the 
 court states: "There are, no doubt, authorities — and perhaps a 
 weight of authorities, although there are cases the other way — to the 
 point that the appointment of a receiver operates as a sequestration 
 of the property mentioned in the order of appointment. Still it will 
 be found that the cases in which that principle was declared are 
 mainly cases in which complainants at whose instance the receivers 
 were appointed had some estate in or some right to or lien upon the 
 property involved prior to and independent of the appointment of 
 the receiver").
 
 297 THE RECEIVER'S POSSESSION. § 159 
 
 a stranger to the proceedings, in possession, and claim- 
 ing the right to retain and sell it, in custodia legis. 
 Actual possession was necessary to accomplish this. 
 The authorities speak of the appointment mid posses- 
 sion by the receivers as necessary in order to place the 
 property in the custody of the court."^^ This is true 
 even though the receiver has given his bond.^^ In New 
 York, it has been held that as the vesting of title by re- 
 lation is only a legal fiction, such fiction will not be 
 indulged in to permit a wrong against the creditor, 
 when the debtor has, by "frivolous pleading," prevented 
 the creditor from obtaining a prior lien.^° In Vir- 
 ginia an execution levied after the appointment, and 
 before the giving of the bond, is held to create a valid 
 lien.*^ The court, in the case mentioned, relied prin- 
 cipally upon the English case of Edwards v. Edwards,^^ 
 which may be taken to represent the English rule, which 
 is contrary to the general rule in the United States.^^ 
 
 38 Everett v. Neff, 28 Md. 176, 
 
 39 Farmers' Bank v. Beaston, 7 Gill & J. 421, 28 Am, Dec, 226. 
 See, also, Prentiss Tool & Supply Co. v. Whitman & Barnes Mfg, Co., 
 88 Md, 240, 41 Atl, 49, where the time of vesting is regulated by 
 statute. 
 
 40 In re Lewis & Fowler Mfg. Co., 89 Hun, 208, 34 N. Y, Supp. 
 983, See, also, Chamberlain v, Rochester S, P. V, Co., 7 Hun, 557, 
 where the title of a receiver in the case of voluntary dissolution of a 
 corporation vests on the filing of his bond only, 
 
 41 Frayser v, Richmond & A, R. Co,, 81 Va, 388. 
 
 42 L, R. 2 Ch. D. 291; the court was not unanimous in their reason- 
 ing, James, L. J., stating: "It would be very serious to hold that 
 he can take possession before giving security," and Mellish, L. J., 
 maintaining that "if the receiver had really taken possession before 
 the goods were seized, although he had not been completely appointed 
 receiver," the case would have been different. 
 
 43 The English cases, apparently inconsistent with Edwards v. Ed- 
 wards, cannot be said to impair its weight as authority on the point 
 decided; thus, in Ex parte Evans, L. R. 13 Ch. D. 252, the court said: 
 "Edwards v. Edwards only decided it was no contempt for creditors 
 to seize property before the bond was given and the case related to
 
 § 160 EQUITABLE REMEDIES. 29S 
 
 A later Virginia case held that a payment made to a 
 receiver, who had not given bond, was at the peril of 
 the payor, and where the receiver failed to account, the 
 purchaser was bound to pay again, as the receiver's 
 authority dated only from his giving bond.^* 
 
 § 160. Vesting of Title in Supplementary Proceed- 
 ings. — The statutes in regard to the appointment of re- 
 ceivers in supplemental proceedings and the time when 
 the title to the property, in such cases, vests in the re- 
 ceiver, are not harmonious. In New Jersey, the title 
 relates to the issuing of the execution, as against an 
 assignee with notice of the proceedings.'*^ In New 
 York, the code provides that the title is vested in the 
 receiver from the time he files a certified copy of the 
 
 chattels, not land." In regard to land, the court had the following 
 to say: "A judgment creditor, not being able to obtain relief at law 
 under the old system, because his debtor had nothing but an equitable 
 interest in the land, came iuto a court of equity to obtain that relief 
 which he could not obtain at law, and the moment he established the 
 difficulty in his way at law, and the court made the order giving the 
 right to the possession of the lands to the receiver appointed on Ms 
 behalf, that order giving the right to possession to the creditor through 
 the receiver was as much a delivery in execution of land in which the 
 debtor had only an equitable interest, as was the sheriff's return to 
 the writ of elegit at law, that he had extended the land, a delivery 
 in execution of the land in which the debtor had a legal interest." 
 The case of In re Bird, L. E. 22 Ch. D. 604, approving Wickens v. 
 Townshend, 1 Euss, & M. 361, refused to allow a solicitor to retain, 
 on a debt due him, money paid before the receiver's bond was given; 
 but the express ground on which the case was put was the inequita- 
 ble position of the solicitor who occupied a confidential relation to 
 the case, and it cannot be said that it is opposed to Edwards v. Ed- 
 wards. See, also, the recent case, Eidout v. Fowler, [1904] 1 Ch. 
 658 (receiver has no "title" to personalty until he has given bond). 
 
 44 Woods V. Ellis, 85 Va. 471, 7 S. E. 852 (the case seems open to 
 some question, for apparently the receiver afterwards qualified by 
 giving the required bond). 
 
 45 Coleman v. Eoff, 16 Vroom, 17, 45 N. J. L. 7; approved in Sey- 
 fert V. Edison, 47 N. J. L. 428, 1 Atl. 502.
 
 299 THE EECEIVEE'S POSSESSION. § 161 
 
 order of his appointment in the county where the debtor 
 resides ;^^ but that, as respects personal property and 
 things in action, it may relate back, for the benefit of 
 the judgment creditor in whose behalf the proceedings 
 were instituted, to the service of the order for the debt- 
 or's examination.^^ 
 
 § 161. How the Receiver may Obtain Possession of Property 
 Withheld — Where possession is withheld from the re- 
 ceiver by persons who are parties to the suit, or by 
 others claiming under such parties, as agents, lessees, 
 and the like, with notice of the appointment of the re- 
 ceiver, the court has authority to enforce its order for 
 the surrender of the property in a summary way by at- 
 tachment or by a writ of possession.^* Thus, it has 
 been held that the agents or officers of a corporation 
 or firm, a receiver of which has been appointed, may be 
 ordered to deliver up property belonging to their prin- 
 
 46 Nicoll V. Spowers, 105 N. Y. 1, 11 N. E. 138; McCorkle v. Herr- 
 man, 117 N. Y. 297, 22 N. E, 948; Webb v. Osborne, 15 Daly, 406, 7 
 N. Y. Supp. 762 (an order extending the receivership is governed by 
 the same rule). 
 
 47 McCorkle v. Herrman, 117 N. Y. 297, 22 N. E. 948; Youngs v. 
 Klunder, 27 N. Y. St. Eep. 32, 7 N. Y. Supp. 498. But in such case 
 the debtor must have been served with notice to attend the examina- 
 tion: In re Sistare's Estate, 27 Abb. N. C. 34, 15 N. Y. Supp. 709. 
 
 See, also, Eose v. Baker, 99 N. C. 323, 5 S. E. 919, where the code 
 provides that the title shall vest upon an order restraining the debtor 
 from disposing of his nonexempt property. 
 
 48 Thornton v. Washington Savings Bank, 76 Va. 432 (writ of 
 possession against lessee taking a lease from a party, with knowledge 
 of the appointment of a receiver); Ex parte Cohen, 5 Cal. 494; Brandt 
 V. Allen, 76 Iowa, 50, 40 N. W. 82, 1 L. E. A. 653; Eyan v. Kingsbery, 
 88 Ga. 361, 14 S. E. 596; Delozier v. Bird, 123 N. C. 689, 31 S. E. 834, 
 125 N. C. 493, 34 S. E. 643; Tolleson v. Green, 83 Ga. 499, 10 S. E. 
 120; and see Fischer v. Superior Court, 98 Cal. 67, 32 Pac. 875; 
 Miles v. New South Bldg. & L. Assn., 95 Fed. 919; and cases cited 
 in the next note. That the receiver may sometimes attack a fraud- • 
 ulent transfer to a third person, by petition in the cause, see United 
 States V. Late Corporation of Church etc., 5 Utah, 538, 18 Pac. 35.
 
 g 161 EQUITABLE REMEDIES. 300 
 
 cipal, although they themselves are not parties to the 
 
 49 Brandt v. Allen, 76 Iowa, 50, 40 N, W. 82, 1 L. E. A. 653; Ex 
 parte Cohen, 5 Cal. 494. 
 
 In Tolleson v. People's Savings Bank, 85 Ga. 171, 11 S. E. 599, the 
 receiver appointed by the court applied for an order requiring the 
 president of the insolvent corporation to show cause why he should 
 not be attached for contempt, in not delivering the assets of the cor- 
 poration to such receiver in obedience to a previous order of the 
 court directed to the corporation. The president appeared as an in- 
 dividual, and responded under oath, and took part in the proceed- 
 ings. It was held that the court had such jurisdiction of him as 
 would authorize it to deal with him for contempt in not turning 
 over to the receiver the assets of the corporation in his possession. 
 In Ex parte Hollis, 59 Cal. 405, on the other hand, it was held that 
 the president of a corporation against which insolvency proceedings 
 were instituted did not become a party by verifying the pleadings; 
 and that the court could not, by a mere order to show cause why he 
 should not be punished for contempt for not surrendering to the 
 receiver property of the corporation, make him a party and adjudge 
 his adverse claim to the property; and see to the same effect State 
 v. Ball, 5 Wash. 387, 34 Am. St. Eep. 866, 31 Pac. 975. 
 
 Refusal of a party to the action to obey an order directing him to 
 deliver certain property of the corporation to the receiver constitutes 
 a contempt, although he claims a lien thereon: Ex parte Tinsley, 37 
 Tex. Cr. App. 517, 66 Am. St. Eep. 818, 40 S. W. 306; affirmed, 171 
 U. S. 101, 18 Sup. Ct. 805. Such order must be obeyed, however 
 erroneous it may be, if the court had jurisdiction: Tolman v. Jones, 
 114 111. 148, 28 N. E. 464. And the officers need not be expressly re- 
 quired by the order appointing the receiver to deliver the assets to 
 him, if the receiver is invested "with the usual rights and powers of 
 receivers" and specially with power "to receive into Ms possession 
 all the effects and chdses in action" of the dissolved corporation; and 
 a sale of the assets by the officers in such case may be punished as a 
 contempt: Young v. Eollins, 90 N. C. 125, 131. See, further, American 
 C. Co. V. Jacksonville, T. & K. W. E. Co., 52 Fed. 937. 
 
 In Cassilear v. Simons, 8 Paige (N. Y.), 273, the following rule 
 was laid down by Chancellor Walworth: "Where it is referred to a 
 master to appoint a receiver, and the defendant is directed to as- 
 sign and deliver over his property on oath, under the direction of 
 the master, it is the duty of the party who wishes to have an actual 
 delivery of the property, in addition to the legal assignment thereof, 
 to call upon the master to decide the question as to what property is 
 under the defendant's power and control, and to obtain from the
 
 301 THE EECEIVEE'S POSSESSION. § 162 
 
 But the court will not interfere in a summary way 
 as against the possession of a stranger to the action 
 claiming hj a paramount title, but will leave the ques- 
 tion of title to be tried by a proper action brought by 
 the receiver for that purpose; or the complainant may 
 make such third person a party to the suit, and apply 
 to have the receivership extended to the property in his 
 hands.^" "The party in possession, who asserts in good 
 faith color and claim of right, is entitled, under the 
 guaranty of due process of law, to his day in court, and 
 a trial according to the customary forms of law."^^ If 
 in such case the receiver attempts by violence to obtain 
 possession of property claimed by third x^ersons, the 
 court will not protect him any further than the law 
 will protect him, but will permit him to be sued as a 
 trespasser by the party aggrieved.^^ 
 
 § 162. Interference with Receiver's Possession; Claimant 
 Must Apply to the Court.— Courts of equity are exceed- 
 
 master an order directing tbe defendant to deliver over the property 
 thus designated by the master, before the complainant can bring such 
 defendant into contempt for disobeying the order of the court." 
 See, also, Parker v. Browning, 8 Paige, 388, 35 Am. Dec. 717. 
 
 50 Parker v. Browning, 8 Paige, 388, 35 Am. Dec. 717; Cassilear 
 V. Simons, 8 Paige, 273; Wheaton v. Daily Tel. Co., 59 C. C. A. 427, 
 124 Fed. 61; Musgrove v. Gray, 123 Ala. 376, 82 Am. St. Eep. 124, 
 26 South. 643; Havemeyer v. Superior Court, 84 Cal. 327, 387, 18 Am. 
 St. Kep. 192, 24 Pac. 121, 10 L. E. A. 627; Stuparich Mfg. Co. v. 
 Superior Court, 123 Cal. 290, 55 Pac. 985; McCombs v. Merry hew, 40 
 Mich. 721; Elwell v, Goodnow, 71 Minn. 383, 73 N. W. 1092, 1095; 
 In re Muehlfeld, 16 App. Div. 401, 45 N. Y. Supp. 16 (defendant cor- 
 poration's prior assignee for the benefit of creditors, who is not a 
 party, cannot be compelled on motion to surrender to the receiver); 
 Thornton v. Washington Savings Bank, 76 Va. 432; Andrews v. 
 Paschen, 67 Wis. 413, 30 N. W. 712. But see United States v. Late 
 Corporation of Church etc., 5 Utah, 538, 18 Pac. 35. 
 
 51 Musgrove v. Gray, 123 Ala. 376, 82 Am. St. Eep. 124, 26 South. 
 643. 
 
 52 Parker v. Browning, 8 Paige, 388, 35 Am. Dec. 717.
 
 §• 162 EQUITABLE EEMEDIES. 302 
 
 inglj averse to any interference with the possession of 
 their receivers, which is deemed the possession of the 
 court. They jealously and vigilantly guard and main- 
 tain against obstruction, under process of another 
 court, their exclusive authority and right to adjudicate 
 upon and distribute the fund in their custody among 
 those entitled.^* "The court never allows any person 
 to interfere, either with money or property in the hands 
 of its receiver, without its leave; whether it is done by 
 the consent or submission of the receiver, or by com- 
 pulsory process against him. The court is obliged to 
 keep a strict hand over property in the hands of a re- 
 ceiver, or which, by virtue of the order of the court, 
 may come into his hands, in order to preserve entire 
 jurisdiction over the whole matter, and to do that 
 which is just in the cause between the parties."^^ 
 "When a party is prejudiced by having a receiver put 
 in his way, the course has either been to give him leave 
 to bring an ejectment [or other action], or to permit 
 him to be examined pro interesse siio, which may, per- 
 haps, often be the most convenient mode."^^ Where 
 property or funds are in the hands of a receiver, and 
 claimed by persons not parties to the action in which 
 he was appointed, a petition or motion may be presented 
 
 53 Ex parte Tillman, 93 Ala. 101, 9 South. 527; Angel v. Smith, 
 9 Ves. 335; Brooks v. Greathed, 1 Jacob & W. 178; Evelyn v. Lewis, 
 3 Hare, 472; Eussell v. East Anglian Ry., 3 Macn. & G. 104;. Ex parte 
 Cochrane, L. R. 20 Eq. 282; Wiswall v. Sampson, 14 How. 52, 65, 14 
 L. ed. 322; In re Swan, 150 U. S. 637, 14 Sup. Ct. 225, 37 L. ed. 1207; 
 Moore v. Mercer Wire Co. (N. J. Eq.), 15 Atl. 737; Spinning v. 
 Ohio L. I. & T. Co., 2 Disn. (Ohio) 336; Vermont & C. K. Co. v. 
 Vermont Central E. Co., 46 Vt. 792. 
 
 54 De Winton v. Mayor of Brecon, 28 Beav. 200, per Lord Eomilly, 
 M. R. 
 
 55 Brooks V. Greathed, 1 Jacob & W. 176. See, also. Ex parte 
 Cochrane, L. E. 20 Eq. 282; Skinner v. Maxwell, 68 N. C. 400.
 
 303 THE KECEIVER'S POSSESSION. § 163 
 
 to the court for an order on the receiver to deliver over 
 the fund or property to the claimant.^^ 
 
 § 163. Interference with Receiver a Contempt of Court. — 
 It is well settled that a disturbance of the receiver's 
 possession by any person, whether by force, or by legal 
 proceedings against him, or in any other manner, with- 
 out the permission of the court by whom the receiver 
 was appointed, constitutes a contempt of that court, 
 since the possession of the receiver is in law the posses- 
 sion of the court itself.^"^ And such person may be 
 
 56 Wheeler v. Walton & Wharn Co., 64 Fed, 664, 667, affirmed 
 Winchester v, Davis Pyrites Co., 67 Fed. 45, 14 C. C. A. 300; Kim- 
 ball V. GafPord, 78 Iowa, 65, 42 N. W. 583, 4 L. E. A. 398; Morrill 
 V. Noyes, 56 Me. 458, 96 Am. Dec. 486; Jacobson v, Landolt, 73 Wis. 
 142, 9 Am. St. Eep. 767, 40 N. W. 636. 
 
 57 Skip V. Harwood, 3 Atk. 564; Kussell v. East Anglian Ey., 3 
 Macn. & G. 104; Helmore v. Smith, 35 Ch. D. 449; In re Swan, 150 
 U. S. 637, 14 Sup. Ct. 225, 37 L, ed. 1207; Tinsley v. Anderson, 171 
 IT. S. 101, 18 Sup. Ct. 805, 43 L. ed. 91; In re Doolittle, 23 Fed. 544, 
 and note; United States v. Kane, 23 Fed. 748; In re Wabash E. Co., 
 24 Fed. 217; In re Higgins, 27 Fed. 443; Beers v. Wabash H. L. & 
 P. E. Co., 34 Fed. 244; United States v. Murphy, 44 Fed. 39; Ameri- 
 can C. Co. V. Jacksonville, T. & K. W. E. Co., 52 Fed. 937; Thomas 
 V. Cincinnati, N. O. & T. P. Ey. Co., 62 Fed. 803; United States v. 
 Jose, 63 Fed. 951; In re Acker, 66 Fed. 290; Ex parte Hollis, 59 Cal. 
 405; Tollison v. Green, 83 Ga. 499, 10 S. E. 120; Tolleson v. People's 
 Sav. Bank, 85 Ga, 171, 11 S. E. 599; Eyan v. Kingsberry, 88 Ga. 
 361, 14 S. E. 596; Drakeford v. Adams, 98 Ga. 722, 25 S. E. 833; 
 Eichards v. People, 81 111. 551; Tolman v. Jones, 114 111. 148, 28 
 N. E. 464; Sercomb v. Catlin, 128 111. 556, 15 Am. St. Eep. 147, 21 
 N. E. 606; In re Lewis, 52 Kan. 660, 35 Pac. 287; Smith v. Hosmer, 
 84 Mich. 564, 47 N, W. 1092; Moore v. Mercer Wire Co. (N. J. Eq.), 
 15 Atl. 305; Noe v. Gibson, 7 Paige, 513; Cassilear v. Simons, 8 
 Paige, 273; Hull v, Thomas, 3 Edw. Ch. 236; Delozier v. Bird, 123 
 N. C. 689, 31 S. E. 834; on rehearing, 125 N. C, 493, 34 S. E. 643; 
 Spinning v. Ohio etc. Tr. Co., 2 Disn. (Ohio) 336; Chafee v. Quidnick 
 Co., 13 E. I. 442; Edrington v. Pridham, 65 Tex. 612; Ex parte Tins- 
 ley, 37 Tex. Cr. App. 517, 66 Am. St. Eep, 818, 40 S. W, 306; Vermont 
 etc. E. Co. V. Vermont Cent. E. Co., 46 Vt, 792; State v. Ball, 5 
 Wash. 387, 34 Am. St. Eep. 866, 31 Pac. 975. As to the degree of 
 proof requisite for punishment for contempt, see United States v.
 
 } 163 EQUITABLE EEMEDIES. 304 
 
 chargeable with contempt if he has actual knowledge 
 of the granting of the order appointing a receiver, al- 
 though the order has not been legally served upon him, 
 or even formally drawn up.^® Further, it is not compe- 
 tent for anyone to interfere with the possession of a 
 receiver on the ground that the appointment was im- 
 provident;^^ the order of appointment cannot be as- 
 sailed as erroneous in contempt proceedings, if the 
 court had jurisdiction of the subject-matter and of the 
 parties in the suit in which the receiver was ap- 
 pointed.^^ 
 
 Imprisonment of the defendant by virtue of attach- 
 ment proceedings, for disobedience in not delivering up 
 a specific sum of money found and adjudged to have 
 
 Jose, 63 Fed. 951. That advice of counsel constitutes no defense, 
 see Delozier v. Bird, 123 N. C. 689, 31 S. E. 834; Edrington v. 
 Pridham, 65 Tex. 617. As to punishment for contempt, in the case 
 of rival appointments, of the receivers whose rights are inferior, 
 see People v. Central City Bank, 35 How. Pr. (N. Y.) 428, 53 Barb. 
 412; Spinning v. Ohio etc. Tr. Co., 2 Disn. 336. That it is not 
 proper, in contempt proceedings, to render a judgment in favor of 
 the receiver to be collected by execution, see Edrington v. Pridham, 
 65 Tex. 612. 
 
 58 Skip v. Harwood, 3 Atk. 564; Hull v. Thomas, 3 Edw. Ch. 236; 
 Drakeford v. Adams, 98 Ga. 722, 25 S. E. 833. 
 
 59 Kussell V. East Anglian Ey., 3 Macn. & G. 104, per Lord Truro: 
 "The result appears to be this: that it is an established rule of 
 this court that it is not open to any party to question the orders 
 of this court, or any process issued under the authority of this court, 
 by disobedience. I know of no act which this court may do which 
 may not be questioned in a proper form and on a proper application; 
 but I am of opinion that it is not competent for anyone to inter- 
 fere with the possession of a receiver, or to disobey an injunction, 
 or any other order of the court, on the ground that such orders were 
 
 improvidently made I do not see how the court can expect its 
 
 officers to do their duty, if they do it under the peril of resistance, 
 and of that resistance being justified on grounds tending to the im- 
 peachment of the order under which they are acting." 
 
 60 Eichards v. People, 81 111. 551; Tolleson v. Green, 83 Ga. 499, 
 10 S. E. 120; Tolman v. Jones, 114 lU. 148, 28 N. E. 464; In re Lewis, 
 52 Kan. 660, 35 Pac, 287.
 
 305 THE RECEIVER'S POSSESSION. { 164 
 
 been in his hands or under his control at the time de- 
 mand was made upon him by the receiver, is not impris- 
 onment for debt, within the meaning of the constitu- 
 tional prohibition.^^ 
 
 A person within the jurisdiction of the appointing 
 court may be held guilty of contempt for acts of in- 
 terference committed by him against the receiver in a 
 foreign state, as by attaching property of the receiver- 
 ship there situated. ^^ 
 
 § 164. Possession Protected by Injunction. — It is fre- 
 quently necessary for a receiver to pray for an injunc- 
 tion to restrain any unauthorized interference with the 
 property in his possession, and the granting of such 
 an injunction in such cases is a necessary incident to 
 the power of appointing receivers.^^ Thus, on the ap- 
 
 61 See the able and exhaustive opinion of Lumpkin, J., in Ryan 
 V. Kingsberry, 88 Ga. 361, 14 S. E. 596, reviewing many cases. 
 
 62 Chafee v. Quidnick Co., 13 R. I. 442; Sercomb v. Catlin, 128 111. 
 556, 15 Am. St. Rep. 147, 21 N. E. 606; Smith v. Hosmer, 84 Mich. 
 564, 47 N. W. 1092. 
 
 63 Evelyn v. Lewis, 3 Hare, 472; Dixon v. Dixon, [1904] 1 Ch. 
 161; Davis v. Gray, 16 Wall. 203, 21 L. ed. 447; In re Tyler, 149 U. S. 
 164, 13 Sup. Ct. 785, 37 L. ed. 689; Fidelity T. & S. V. Co. v. Mobile 
 S. R. Co., 53 Fed. 687; Arthur v. Oakes, 63 Fed. 310, 11 C. C. A. 209, 
 25 L. R. A. 414; Metropolitan Trust Co. v. Columbia, S. & H. Ry. Co., 
 95 Fed. 18; Lake Shore & M. S. Ry. Co. v. Felton, 103 Fed. 227, 43 C. 
 C. A. 189; Bibber-Whit© Co. v. White River Valley Electric Ry. Co., 
 107 Fed. 176; In re Kleinhause, 113 Fed. 107 (receiver in bankruptcy 
 proceedings); Marshall v. Lockett, 76 Ga. 289; Woodburn v. Smith, 
 rt6 Ga. 241, 22 S. E, 964; Morgan v. New York & A. R. Co., 10 Paige, 
 290, 40 Am. Dec. 244; In re Christian Jensen Co., 128 N. Y. 550, 28 
 N. E. 665; Woerishoffer v. North River Construction Co. 99 N. Y. 
 398, 2 N. E. 47. It should be borne in mind that the federal courts 
 are prohibited from granting injunctions to stay proceedings in any 
 court of a state, except as may be authorized by the bankruptcy 
 laws: U. S. Rev. Stats., § 720; Baker v. Ault, 78 Fed. 394. In Davis 
 V. Butters Lumber Co., 132 N. C. 233, 43 S. E. 650, a receiver was 
 allowed an injunction to restrain a resident creditor from suinc; in 
 another state, it appearing that such action would interfere with the 
 collection of assets. 
 
 Equitable Remedies, Vol. I — 20
 
 § 164 EQUITABLE REMEDIES. 306 
 
 pointinont of a receiver of all the property and effects 
 of a corporation, for the purpose of closing up its affairs, 
 it is proper that the court should make it a part of the 
 order that the directors and officers of the corporation 
 be restrained from collecting any debts or demands due 
 the company, and from paying out, assigning, or de- 
 livering any of the property, moneys or effects of the 
 corporation to any other person, and from incumber- 
 ing the same.^^ The aid of an injunction is frequently 
 invoked in connection with railway receiverships: for 
 instance, in restraint of striking workmen f^ to protect 
 the right of way from an unwarranted use by another 
 company ;®® to protect the company's right to a joint 
 user of the track of another company f^ to restrain state 
 officers from disposing of a land grant, under a claim 
 of forfeiture to the state.^^ The parties to a suit con- 
 cerning real property may be enjoined by the receiver 
 from distraining for rent.®^ And a receiver may apply, 
 
 64 Morgan v. New York & A. B. Co., 10 Paige, 290, 40 Am. Dec. 
 244, per Walworth, C, See, also, In re Christian Jensen Co., 128 N. 
 Y. 550, 28 N. E. 665; Phoenix F. & M. Co. v. North River Construction 
 Co., 33 Hun, 156; Woerishoffer v. North River Construction Co., 99 
 N. Y. 398, 2 N. E. 47, per Finch, J.: "Both parties concede that the 
 possession of the court must not be invaded; that its officers cannot 
 be sued t ithout its permission; and that he cannot be dispossessed 
 except al the peril of a contempt. What then must needs be the 
 effect of the order in this case? It commands nothing which waa 
 not already commanded; it forbids nothing which otherwise was per- 
 missible; it takes away no right or remedy which the appointment 
 of the receiver had not already taken away. Its sole practical effect 
 was to give notice of that appointment and the right secured by it, 
 and charge the specific creditor with a conscious and willful contempt 
 if he assailed the possession of the court." 
 
 65 Arthur v. Oakes, 63 Fed. 310, 11 C. C. A. 209, 25 L. E. A. 414; 
 Bee post, § 169. 
 
 66 Fidelity T. & S. V. Co. v. Mobile S. E. Co., 53 Fed. 687. 
 
 67 Metropolitan Trust Co. v. Columbus, S. & H. Ey. Co., 95 Fed. 18. 
 
 68 Davis V, Gray, 16 Wall. 203, 21 L. ed. 417. 
 e» Marshall v. Lockett, 76 Ga. 289.
 
 307 THE RECEIVER'S POSSESSION. S 165 
 
 pending confirmation of his sale of property, to protect 
 the possession of his vendee. '^'^ 
 
 Relief for such interference with property belong- 
 ing to the receiver, by strangers to the suit, may be had 
 either by bill or by petition in the suit, at the discretion 
 of the court.^^ 
 
 § 165. Attachment Ag'ainst Receiver. — Since the posses- 
 sion of the receiver is the possession of the court ap- 
 pointing him, "the property in his hands as such is 
 not subject to attachment,'^ ^ nor is he subject to gar- 
 
 70 Woodburn v. Smith, 96 Ga. 241, 22 S. E. 964. 
 
 71 In re Tyler, 149 U. S. 164, 13 Sup. Ct. 785, 37 L. ed. 689; Lake 
 Shore & M. S. R. Co. v. Felton, 103 Fed. 227, 43 C. C. A. 189; Bibber- 
 White Co. V. White R. V. E. R. Co., 107 Fed. 176; Vermont & C. R. 
 Co. V. Vermont Cent. R. Co., 46 Vt. 792. 
 
 72 Ex parte Tillman, 93 Ala. 101, 9 South. 527 (refusing to allow a party 
 to obtain possession of attached goods) ; Atlas Bank v. Nahant Bank, 23 
 Pick. 480 (attachment after filing of the bill creates no lien on the prop- 
 erty) ; Columbian Book Co. v. De Golyer, 115 Mass. 67; Walker v. George 
 Taylor C. Co., 56 Ark. 1, 18 S. W. 1056, 19 S. W. 601; Wadsworth v. 
 Laurie, 164 111. 42, 49, 45 N. E. 435; State v. Ellis, 45 La. Ann. 1418, 14 
 South. 308 ("being [the property] already in the hands of an officer 
 of the court for distribution among creditors, the object to be accom- 
 plished by a seizure is attained"); White v. Frankel, 12 Misc. Rep. 
 271, 33 N. Y. Supp. 1; Mosher v. Supreme Sitting of O. of I. H., 88 
 Hun, 394, 34 N. Y. Supp. 816; Texas Trunk R. R. Co. v. Lewis, 81 Tex. 
 1, 26 Am. St. Rep. 776, 16 S. W. 647; Merrill v. Commonwealth Mut. 
 Fire Ins. Co., 166 Mass. 238, 44 N. E. 144 (attachment after pro- 
 <:eedings commenced for winding up company is void); Hagedon v. 
 Bank of Wisconsin, 1 Pinn. 61, 39 Am. Dec. 275; Regenstein v. Pearl- 
 stein, 30 S. C. 192, 8 S. E. 850 (attachment after appointment, and 
 before bond is given, is ineffectual); but see Naumburg v. Hyatt, 
 24 Fed. 898, stating: "The fact that a receiver had been appointed 
 with special and limited power to execute the judgment in this case 
 before the levy of the attachment of petitioners does not necessarily 
 avoid the levy and prevent the court from waiving the apparent con- 
 tempt and recognizing as valid such irregular proceedings 
 
 The possession of the property was in no way disturbed, and there 
 was no hasty interference with the proceedings in the pending 
 1,'ause": Halpem v. Clarendon H. L. Co., 64 Ark. 132, 40 S. W. 784 
 (vendor's right to lien may be defeated, if not perfected before th« 
 appointment).
 
 g 1G5 EQUITABLE BEMEDTES. 308 
 
 nishment on account of it,'^^ or funds in his bands or 
 subject to bis control in tbat capacity."'^* But in such 
 cases the court "may with propriety permit proceed- 
 ings in garnishment to be brought/'"^^ where, in the dis- 
 cretion of the court, justice requires itJ® And it has 
 
 73 Blum V. Van Vechten, 92 Wis. 378, 66 N. W. 507; Campau 
 V. Detroit Driving Club (Mich.), 98 N. W. 267; Vieth v. Eess, 60 
 "Neb. 52, 82 N. W. 116 ("and he cannot be sued or summoned, as gar- 
 nishee in respect to property in his possession by virtue of his 
 trust"); Richards v. People, 81 111. 551 ("the garnishee proceedings 
 were a direct interference with the right of the receiver since they 
 attempted to deprive him of what was his under the order of his 
 appointment"); Missouri Pac. Ey. Co. v. Love, 61 Kan. 433, 59 Pac. 
 1072; Commonwealth v. Hide & Leather Ins. Co., 119 Mass. 155, gives 
 the following reason: "The property of the corporation is intrusted 
 to the receivers by the authority of the law, for the purpose of dis- 
 tribution among the creditors of the corporation, not among the cred- 
 itors of those creditors. To undertake to determine, as incidental to 
 the administration of the estate of the corporation, the validity and 
 equity of the claims of every creditor of a creditor of the corporation, 
 would unreasonably embarrass and delay the distribution of the es- 
 tate and the settlement of the accounts of the receivers"; Holbrook 
 V. Ford, 153 111. 633, 46 Am. St. Rep. 917, 39 N. E. 1091, 27 L. R. A. 
 324, distinguishing Sercomb v. Catlin, 128 III. 556, 15 Am. St. Rep. 
 147, 21 N. E. 606; McGowan v. Myers, 66 Iowa, 99, 23 N. W. 282; 
 Field V. Jones, 11 Ga. 413; Taylor v. Gillean 23 Tex. 508; Kreislee v. 
 Campbell 89 Tex. 104, 33 S. W. 853; Blum v. Van Vechten, 92 Wis. 
 378, 66 N. W. 507; but see Central Trust Co. v. Chattanooga E. & 
 C. E. Co., 68 Fed. 685. 
 
 7 4 Blum v. Van Vechten, supra. See, also, Ex parte Tillman, 93 
 Ala. 101, 9 South. 527; People's Bank of Bell v. Calhoun, 102 U. S. 
 256, 26 L. ed. 101 ("it was for the court having possession to deter- 
 mine how far it would permit any other court to interfere with that 
 possession, and what effect it would give to the attempt of another 
 court to seize the property so under its control"). 
 
 75 Cohnen r. Sweenie, 105 Mich. 643, 63 N. W. 641 (the assets 
 were shown to be in excess of the debt which the receiver was to 
 satisfy); approved in Citizens' Com. & Sav. Bank v. Bay Circuit 
 Judge, 110 Mich. 633, 68 N. W. 649 (if there is no abuse of discretion 
 ia granting the order, it will not be set aside on appeal) ; Van 
 Bianchi y. Wayne, 124 Mich. 462, 83 N. W. 26 (see for the effect of 
 statute); Yeiser v. Gathers (Neb.), 97 N. W. 840. 
 
 7« Ex parte Tillman, 93 Ala. 102, 9 South. 527 ("unquestionably 
 ih.% ehaneerj eonrt had authoritj to permit the levies of the attach
 
 309 THE EECEIVER'S POSSESSION. i 168 
 
 been stated that "where the case in which their appoint- 
 ment has been made has been settled, or where they 
 have a fund in their hands over and above the amount 
 necessary to satisfy tbe judgment," an attachment or 
 garnishment is not an improper interference with the 
 court's possession.'^' 
 
 § 166. Property in Receiver's Possession not Subject to 
 Sale Under Execution — It is a general rule that property 
 in the hands of a receiver is not subject to execution 
 sale without leave of the court. '^^ The reason for the 
 rule is thus given : "When a court of equity has under- 
 
 ments, and, had they been levied by leave of the court first obtained, 
 the levies would have been legal and valid"). See, also, Wallace r. 
 Wallace, 21 App. Div. 542, 48 N. Y. Supp. 592. 
 
 77 Eussell V. Millett, 20 Wash. 212, 55 Pae. 44; see, also, Smith ▼. 
 People, 93 111. App. 135. But this is expressly denied by Campbell, 
 J., in People v. Brooks, 40 Mich. 333, 29 Am. Eep. 534. 
 
 78 Eussell V. East Anglian Ey., 3 Macn. & G. 104; WiswaU v. Samp- 
 son, 14 How. 52, 65, 14 L. ed. 322; State of Georgia v. Jesup, 106 
 U. S. 458, 464, 1 Sup. Ct. 363, 27 L. ed. 216; Wheeler v. Wal- 
 ton etc. Co., 65 Fed. 720; In re Hall & Stilson Co., 73 Fed, 527; 
 Bugger V. Collins, 69 Ala. 324; Premier Steel Co. t. McElwaine- 
 Eichards Co., 144 Ind. 614, 43 N. E. 876; Gardner v. Caldwell, 16 Mont. 
 221, 40 Pac. 590, and numerous authorities reviewed; Walling v. 
 Miller, 108 N. Y. 173, 2 Am. St. Eep. 400, 15 N. E. 65; Skinner v. 
 Maxwell, 68 N. C. 400; Pelletier v. Greenville Lumber Co., 123 N. C. 
 696, 68 Am. St. Eep. 837, 31 S. E. 855; Eobinson v, Atlantic & G. W. 
 E. Co., 66 Pa. St. 160; Thompson v. McCleary, 159 Pa. St. 189, 28 
 Atl. 254; Edwards v. Norton, 55 Tex. 405; Eussell v. Texas & P. E 
 Co., 68 Tex. 646, 5 S. W. 686; Ellis v. Vernon etc. Co., 86 Tex. 109 
 23 S. W. 858; Hammond v. Tarver, 11 Tex. Civ. App. 48, 31 S. W 
 841. For limitations on the rule, see Hickox v. Holladay, 29 Fed, 
 226, 233 (following WiswaU v. Sampson, but with reluctance) ; Peta 
 luma Sav. Bk. v. Superior Court, 111 Cal. 488, 44 Pac. 177; Chau 
 tauqua Co. Bank v. Eisley, 19 N. Y. 369, 75 Am. Dec. 347; In re Loos, 
 50 Hun, 67, 3 N. Y. Supp. 383; Wilkinson v. Paddock, 57 Hun, 191 
 11 N. Y. Supp. 442, affirmed on appeal, 125 N. Y. 748, 27 N. E. 407 
 St. Louis etc. E. Co. v. Whitaker, 68 Tex. 630, 5 S. W, 448; Cherry 
 V. Western Washington I. E. Co., 11 Wash. 586, 40 Pae. 136; Cass 
 V. Sutherland, 98 Wis. 551, 74 N. W. S37.
 
 i 166 EQUITABLE REMEDIES. 310 
 
 taken to adjudicate upon and distribute a fund among 
 the parties entitled to it, it would be inconvenient if a 
 court of law (or any other court) could by its process 
 interrupt the adjudication and create new rights in the 
 property itself."'^' The argument that a sale on execu- 
 tion of land in the possession of a receiver occasions no 
 interference with the possession of the receiver, and 
 hence no contempt of the authority of the court, does 
 not meet the objection.^"^ "The end sought by the rule 
 is not only the avoidance of conflict in the jurisdiction 
 of the courts, but the preservation of the interests of 
 creditors and debtor. These interests have been in- 
 trusted to the court of equity, which affords a more 
 comprehensive and perfect system of justice than the 
 court of law, in order that all may be guarded and pro- 
 tected, each with reference to every other." Further, 
 sales on execution of property in a receiver's hands 
 would usually be sales at a sacrifice, and redemption 
 from such sales attended with embarrassment.^* 
 
 79 Skinner v. Maxwell, 68 N. C. 404. 
 
 80 Wiswall V. Sampson, 14 How. 52, 66, 14 L. ed. 322. "The prop- 
 erty is a fund in court, to abide the event of the litigation, and to be 
 applied to the payment of the judgment creditor, who has filed his 
 bill to remove impediments in the way of his execution. If he haa 
 Bucceeded in establishing his right to the application of any portion 
 of the fund, it is the duty of the court to see that such application 
 id made. And, in order to effect this, the court must administer it 
 independently of any rights acquired by third persons, pending the 
 litigation. Otherwise, the whole fund may have passed out of its 
 hands before the final decree, and the litigation become fruitless." 
 See, also, Dugger v. Collins, 69 Ala. 324. 
 
 81 Premier Steel Co. v. McElwaine-Richarda Co., 144 Ind. 614, 43 
 N. E. 876, per Hackney, C. J., who continoes: "If the right of the 
 lower court was to direct the sale by its own officer, and upon execu- 
 tion, as in other instances, that right would be in utter disregard of 
 the condition of the estate as to the ability of the receiver to realize 
 by certificates, rentals, or other means, permitted by the court in pos- 
 ■ession, sums sufficient to pay the appellee's claim and extinguish 
 the lien. Any possible right of the receiver to redeem would be em- 
 barrassed by additional costs and ultimate losses to the general
 
 311 THE EECEIVER'S POSSESSION. I 166 
 
 The rule is not to be understood as absolutely pre- 
 venting the acquisition of new riy,hts to the fund in 
 controversy after the commencement of the proceedings. 
 Any person claiming to have acquired such an inter- 
 est, while he cannot interfere under the process of an- 
 other court, may, under the old equity practice, apply 
 to the court which has jurisdiction of the fund, pro 
 interesse suo, and his claim will be heard.^^ The same 
 result can now be accomplished by a petition and mo- 
 tion in the cause ;^^ and in administering the fund, the 
 court will take care that the rights of prior liens or 
 incumbrances shall not be destroyed; and will adopt 
 proper measures, by reference to the master or other- 
 wise, to ascertain them, and bring them before it.^^ 
 
 creditors, and a redemption by any creditor would not only meet the 
 same embarrassment, but it would result either in giving such re- 
 deeming creditor an advantage over other creditors, or of redeeming 
 to his own inconvenience, that all creditors might be protected. If 
 the whole subject were within the control of the court appointing the 
 receiver, the lienholder's interests could be protected by his right of 
 priority to the proceeds of any sale; the opportunity for competition 
 in selling at private sale would be afforded; the wisdom of the chan- 
 cellor would be taken upon the prudence and fairness of the sale and 
 the adequacy of the consideration; costs would be spared, and re- 
 demption complications avoided." See, also, Gardner v. Caldwell, 
 16 Mont. 221, 40 Pac. 590. In Pelletier v. Greenville Lumber Co., 
 123 N. C. 596, 68 Am. St. Eep. 837, 31 S. E. 855, Douglas, J., says of 
 the doctrine permitting the sale of real estate, provided it does not 
 interfere with the actual possession of the receiver: "Its practical 
 effect would be either to permit outside parties to stop all further 
 proceedings of a court of equity by disposing of the subject-matter 
 in controversy, or else to put that court in the position of holding 
 simply the naked possession of property and gravely proceeding to 
 determine who would have been entitled to the property if it had 
 not been sold! " 
 
 82 Skinner v. Maxwell, 68 N. C. 400, 404; Wiswall v. Sampson, 14 
 How. 52, 65, 14 L. ed. 322; Dugger v. Collins, 69 Ala. 324. 
 
 83 Pelletier v. Greenville Lumber Co., 123 N. C. 596, 31 S. E. 855, 
 68 Am. St. Rep. 837; and other cases, supra, in note 78. 
 
 84 WiswaU V. Sampson, 14 How. 52, 66, 67, 14 L. ed. 322; In re Hall 
 & Stillson Co., 73 Fed, 527, 536.
 
 5 166 EQUITABLE REMEDIES. 312 
 
 In some cases, where the property in dispute is ample, 
 and the litigation protracted, it may be fit and proper 
 for the court to permit the execution to issue; but such 
 proceedings should be under the control of the discre- 
 tion of the court, as the condition of the title to the 
 property may frequently be so complicated and em- 
 barrassed, that unless the sale is withheld until the 
 title is cleared up by the judgment of the court, great 
 sacrifice must necessarily ensue to the parties inter- 
 ested;^^ and authority to issue an execution on a prior 
 judgment should be withheld, in absence of a satisfac- 
 tory showing that there is any urgent necessity for a 
 speedy sale, or that the petitioner will be prejudiced 
 by allowing the receiver to administer the estate and to 
 distribute the fund with due regard to priority of 
 claims.^* 
 
 Giving consent to making the receiver a party de- 
 fendant to an action in another court to establish a 
 lien against the j)roperty does not authorize such other 
 court to order a sale of the property on execution.^^ 
 
 It is held that the doctrine of non-interference does 
 not extend so far as to prevent a sale, without leave, of 
 property to which the receiver was not entitled under 
 the order of appointment;^^ and it appears to be held 
 
 85 Wiswall V. Sampson, 14 How. 52, 68, 14 L. ed. 322; In re Hall 
 
 6 Stillson Co., 73 Fed. 527, 536 (refusing leave to issue execution, 
 where property not ample to meet all claims, and title embarrassed). 
 Leave was granted in Pelletier v. Greenville Lumber Co., 123 N. C. 
 596, 68 Am. St. Eep. 837, 31 S. E. 855; In re Thompson, 10 App. Div. 
 40, 41 N, Y. Supp. 740; Case v. Sutherland, 98 Wis. 551, 74 N. W. 
 337; and Cohen v. Gold Creek etc. Co., 95 Fed. 580 (receiver showing 
 DO diligence in executing the trust). 
 
 86 Wheeler v. Walton etc. Co., 65 Fed. 720. That the petition should 
 not be determined without notice to the parties in the original suit, 
 see In re Hall & Stillson Co., 69 Fed. 425. 
 
 87 Premier Steel Co. v. McElwaine-Richards Co., 144 Ind. 614, 43 
 N. E. 876. 
 
 88 St. Louis etc. E. Co. v. Whitaker, 68 Tex. 630, 5 S. W. 448.
 
 313 THE RECEIVER'S POSSESSION. § 167 
 
 in California that the appointment of a receiver of the 
 separate real estate of the husband in an action for 
 divorce, in order to enforce a decree for alimony 
 awarded to the wife, does not prevent the enforcement 
 of a judgment lien upon such real estate by a judgment 
 creditor of the husband, whether such lien be prior or 
 subsequent to the lien of the decree for alimony, and it 
 is not necessary that there should be an application by 
 such judgment creditor to the court appointing the re- 
 ceiver before proceeding to sell such real estate under 
 €xecution.^* 
 
 § 167. Same; Illustrations; Execution Sales Under Subse- 
 quent, and Under Prior Liens.— When, on a creditor's bill, 
 the judgment debtor has made an assignment of all his 
 property to the receiver, under an order of court, a sub- 
 sequent judgment against the receiver does not bind the 
 land, since the debtor has no title or interest left to 
 which the judgment could attach; and, therefore, a 
 sale on execution levied under such subsequent judgment 
 is void as against a sale by the receiver.^" But such 
 an assignment or conveyance to the receiver is not 
 necessary in order to invalidate execution sales upon 
 judgments recovered during the receivership. Thus, 
 
 89 Petaluma Savings Bank v. Superior Court, 111 Cal. 488, 44 Pac. 
 177. It is difficult to determine from the opinion of Beatty, C. J., 
 VFhether this rule is limited to receivership in this particular clasa 
 of actions. If intended to be of general application, it is, of course, 
 •contrary to the whole current of authority. Wiswall v. Sampson ia 
 distinguished (pp. 500, 501) on the ground that there the fund sought 
 to be reached on execution was "the creation of the court appointing 
 the receiver, and was necessarily subject to its disposition." In con- 
 sidering the weight to be attached to this decision it is well to re- 
 member that the supreme court of California has, in several cases, 
 taken an extremely narrow view of the receiver's title, in apparent 
 indifference to the consensus of opinion elsewhere. 
 
 »o Chautauqua County Bank y. White, 6 N. Y. 236, 57 Am. Dee. 
 442.
 
 § 1G7 EQUITABLE REMEDIES. 314- 
 
 the purchaser at an execution sale of property in the 
 possession of a receiver for the purpose of collecting 
 the rents, on a judgment recovered subsequent to the 
 appointment, takes no title ;^^ and the same is true 
 when the judgment was recovered before the appoint- 
 ment, but no lien was acquired by levy upon the land 
 until after the receiver had taken possession.^^ Such 
 levy and sale is not only ineffectual to pass title, but 
 may be restrained on the receiver's petition as an in- 
 terference with his control; thus, a levy, subsequent 
 to the appointment of a receiver of all the mortgaged 
 property of a company, upon land which was covered 
 by the mortgage, was set aside, and further proceedings 
 under the execution restrained, although the judgment 
 upon which the execution was issued was recovered be- 
 fore the appointment of the receiver ;^^ and a receiver 
 having in custody property of a corporation may re- 
 strain execution against such property on a subsequent 
 judgment.** 
 
 Where, on the other hand, the property in the hands 
 of the receiver is subject to a prior lien, the question 
 of the right and power of the holder of such lien to 
 enforce it without the consent of the court which has 
 appointed the receiver is one of much difficulty, and 
 
 91 Edwards v. Norton, 55 Tex. 405; see, also, Kussell v. Texas P. 
 R. R. Co., 68 Tex. 646, 5 S. W. 686. 
 
 92 Dugger V. Collins, 69 Ala. 324. 
 
 93 Robinson v. Atlantic & G. W. R. Co., 66 Pa. St. 160. The court 
 gays: "If the property might be taken piecemeal from the custody 
 of the receiver, the remedy of the creditors under the mortgage 
 
 would become worthless, or at least greatly imperiled If a 
 
 creditor believes that the property was not legally mortgaged, or for 
 any good reason should not pass into the hands of the receiver, his 
 duty is to apply to the court having appointed the receiver to ask 
 its discharge out of custody in order that he may proceed against it." 
 
 94 Gardner v. Caldwell, 16 Mont. 221, 40 Pac. 590, and cases cited;. 
 Thompson v. McCleary, 159 Pa. St. 189, 28 Atl. 254 (decree without 
 prejudice to the defendants' right to apply to the proper court).
 
 315 THE EECEIVER'S POSSESSION. § 167 
 
 has given rise to some conflict of decision. The weight 
 of authority, notwithstanding some vigorous dissent, 
 appears to support the negative of this question. The 
 facts in the leading case^'^ have been thus stated (the 
 action was ejectment) : "The demanded premises in that 
 action had belonged to Ticknor, who had conveyed them 
 in fraud of creditors to Day prior to December, 1840. 
 At that date plaintiff's lessors recovered a money judg- 
 ment against Ticknor, execution upon which was re- 
 turned nulla bona. In 1842 another creditor recovered 
 judgment against Ticknor and thereafter commenced 
 a suit in equity to set aside the conveyance to Day. He 
 succeeded in his action, and after the conveyance was 
 set aside a receiver of the property was appointed. 
 While the receiver was in possession plaintiff's lessors, 
 without leave asked or granted, sold it under an alias 
 execution issued upon his judgment of 1840. The de- 
 fendant in the ejectment suit claimed under the re- 
 ceiver, and it was held in his favor that the execution 
 sale passed no title." A few years later the court of 
 appeals of New York reached an opposite conclusion 
 in a case presenting facts very similar.^^ "The opin- 
 ion in that case lays down the broad doctrine that, if 
 a judgment creditor have a lien upon real estate by 
 virtue of his judgment at the time of the appointment 
 of a receiver, he may be guilty of contempt by the at- 
 tempt to enforce the collection of his judgment by a 
 
 95 Wiswall V. Sampson, 14 How. 52, 14 L. ed. 322 (December term, 
 1852), opinion by Justice Nelson. The cases holding the affirmative 
 of the question usually attempt to distinguish this case, and limit it 
 to its particular facta. The summary of the facts is taken from the 
 opinion of Beatty, C. J., in Petaluma Sav. Bank v. Superior Court, 
 HI Cal. 488, 500, 44 Pac. 177. 
 
 96 Chautauqua County Bank v. Eisley, 19 N. Y, 369, 75 Am. Dec. 
 347. The summary of this case is taken from the opinion of Gaines, 
 J., in Ellis V. Vernon Ice, Light and Water Co., 86 Tex. 109, 23 S. W. 
 658.
 
 I !()7 EQUITABLE REMEDIES. 316 
 
 sale under execution, but that, if the sale be made, it 
 is neither illegal nor void. The facts of the case were 
 that a judgment creditor, where execution had been re- 
 turned unsatisfied, sued his debtor to set aside a fraud- 
 ulent assignment of real estate, and had a receiver ap- 
 pointed. He prevailed in his suit, and, by order of the 
 court, the receiver sold the property. A few days after 
 the same property was sold under an execution issued 
 upon a judgment against the same debtor, which was 
 rendered before the appointment of a receiver, and 
 which was a lien upon the property. The court held 
 that the purchaser at the sheriff's sale took a good title. 
 The judgment which was sought to be collected by the 
 suit in which the receiver was appointed was older than 
 the judgment under which the property was sold by the 
 sheriff, and was also a lien upon the property. But 
 the court was of opinion that the defendant, who 
 claimed through the receiver, took only such title as 
 was conveyed to the receiver by the deed of the party 
 over whose property he was appointed, and that this 
 conveyance passed the property subject to the lien of 
 the judgment under which it was sold by the constable, 
 and that, therefore, the purchaser at execution sale 
 took the superior title. It appears that the laws of 
 New York required a conveyance to the receiver, in 
 order to perfect his control over real estate, but that 
 in case of personal property no such conveyance was 
 necessary. Subsequently, in Walling v. Miller, 108 N. 
 Y. 173, 2 Am. St. Rep. 400, 15 N. E. 65, the same court 
 held that where the sheriff had a levy upon personal 
 property, and a receiver was subsequently appointed, a 
 sale by the sheriff after the appointment, without leave 
 of the court, was wholly illegal and void. If these de- 
 cisions can be reconciled, it must be upon the ground 
 that under the laws of that state the receiver derives
 
 317 THE EECEIVER'S POSSESSION. § 167 
 
 his title to real estate only through the conveyance of 
 the defendant in the action, and that, because such 
 conveyance is not necessary as to personal property, a 
 different rule applies. In re Loos, 50 Hun, 67, 3 N. Y. 
 Supp. 383.^^ It would seem, however, that in Walling 
 V. Miller the court intended to overrule the case of 
 Bank y. Risley, although they do not expressly say so. 
 In the later case they rely upon Wiswall v. Sampson," 
 the authority of which was expressly denied in Cha- 
 tauqua Bank v. Risley. The case from the opinion in 
 which the above extract is taken,^^ was one of an execu- 
 tion of sale of land belonging to a corporation, subse- 
 quent to the appointment, under a levy made prior to the 
 appointment of a receiver of the corporation. The 
 court, holding such sale ineffective to pass title, says, 
 with much force: "To permit the control of a receiver 
 to be interfered with by virtue of process from another 
 court would be a practice fraught with injustice, and 
 productive of confusion; and that remark applies with 
 especial force to the receivers of insolvent corporations. 
 
 •7 The doctrine of Walling v. Miller appears to be limited by a 
 later case, in which it was claimed by a receiver that a sale of the 
 property of the corporation under an execution after his appointment 
 was absolutely void, but the court held that, as the sheriff had seized 
 the property, and had it in his possession at the time of the appoint- 
 ment of the receiver, the sale was not void, but, at most, should bo 
 held simply voidable: Varnum v. Hart, 119 N. Y. 101, 23 N. E. 183 
 as explained in Moore v. Potter, 155 N. Y. 481, 63 Am. St. Eep. 692, 
 50 N. E. 271. See, also. Smith v. Davis, 63 Hun, 100, 17 N. Y. Supp. 
 614 (receiver not in possession of the property on which execution 
 was levied, and claimed no right or interest in it). 
 
 It was held in an early New York case that the levy and sale by 
 the sheriff of real estate in the receiver's possession, upon a prior 
 judgment which was a lien on the land, did not disturb the receiver's 
 possession, and was not a contempt of court: Albany City Bank 
 V. Schermerhorn, 9 Paige, 372, 38 Am. Dec. 551; 10 Paige, 263; see 
 criticism of this case in Pelletier v. Greenville Lomber Co., 123 N, 0. 
 596, 68 Am. St. Eep. 837, 31 S. K 855. 
 
 »8 Ellis T. Yemon Ice, L. 4 W. Co., 86 Tex. 109, 23 a W. 858.
 
 i 167 EQUITABLE REMEDIES. 318 
 
 After all the assets of a corporation have been taken 
 from its managers, and placed under the control of a 
 receiver, is it just to allow its property to be sold un- 
 der execution? The court, having deprived the cor- 
 poration of the power of paying the debt and of avoid- 
 ing the sale, should, in the interest of all concerned, 
 protect its property from the sacrifice." Further cases 
 to the same effect are cited in the note.^^ 
 
 The affirmative of the question under consideration 
 has, however, received vigorous support. Thus, it is 
 held that where the property of an insolvent foreign 
 corporation has been seized by the sheriff under a war- 
 rant of attachment issued by a state court in an action 
 which was afterwards prosecuted to judgment, and ex- 
 ecution issued and levy made upon the property seized, 
 a receiver appointed subsequent to the attachment by 
 the United States circuit court of the district in which 
 such property is situated cannot obtain a summary 
 order to the sheriff to surrender the seized property.^*^*^ 
 In a series of cases in Washington it is held that where 
 a creditor has attached property, the court has no au- 
 thority to direct a receiver appointed in an action other 
 than the attachment suit to take possession of the at- 
 tached property, as the attachment creditor has not 
 only the right to have his debt paid out of the proceeds 
 of such property, but to have the sheriff retain it intact 
 
 99 Pelletier v. Greenville Lumber Co., 123 N. C. 596, 68 Am. St. Eep. 
 837, 31 S. E. 855 (holding that land belonging to an insolvent cor- 
 poration cannot, as a matter of right and without leave of the court, 
 be sold, after the appointment of a receiver, upon a valid judgment 
 obtained before such appointment); State of Georgia v. Jesup, 106 
 U. S. 458, 1 Sup. Ct. 3G3, 27 L. ed. 216, as explained in In re Hall & 
 Stillson Co., 73 Fed. 527, 535; Wheeler v. Walton etc. Co., 65 Fed. 
 720 (execution sale not permitted without urgent reasons) ; Earle v. 
 Commonwealth, 178 U. S. 449, 20 Sup. Ct. 915, 44 L. ed. 1146. 
 
 100 Cole V. Oil- Well Supply Co., 57 Fed. 534. See, also, In re Hall 
 4 Stillson Co., 73 Fed. 527.
 
 519 THE RECEIVEE'S POSSESSION. 6 167 
 
 in the meantime, under ordinary circumstances;^"^ and 
 that where a judgment was recovered and execution 
 levied on land prior to the appointment of the receiver 
 of a corporation, the judgment creditor may lawfully 
 proceed to a sale, and the purchaser thereunder is en- 
 titled to a deed from the sheriff.^^^ ^ similar view is 
 held in California, at least in relation to the receiver- 
 ship of the estate of the husband in an action for di- 
 vorce.^^^ 
 
 On the whole, it may be said that the doctrine of 
 Wiswall V. Sampson, in the fifty years of the history of 
 that case, has been generally accepted in the full breadth 
 and scope with which it was laid down. Reasons of 
 convenience are in its favor; and its proper application 
 
 101 state V. Superior Court of Snohomish County, 7 Wash. 77, 34 
 Pac. 430; State v. Superior Court of Chehalis County, 8 Wash. 210, 
 35 Pac. 1087, 25 L. R. A. 354. In the latter case, Wiswall v, Samp- 
 son is distinguished on the ground that the receiver there was in ac- 
 tual possession. See further as to this case, the later case of State 
 V. Superior Court of King County, 11 Wash. 63, 39 Pac. 244, holding 
 that he may be allowed, under some circumstances, to take possession 
 of the property affected by the prior lien. 
 
 102 Cherry v. Western Washington I. E. Co., 11 Wash. 586, 40 Pac. 
 136. 
 
 103 Petaluma Savings Bank v. Superior Court, 111 Cal. 488, 44 Pac. 
 177. Mr. High, in the third edition of his work on Receivers (5 
 141, note), gives the weight of his opinion in support of the right of 
 the prior lienholder: "The cases of Walling v. Miller, 108 N. Y. 173, 
 2 Am. St. Rep. 400, 15 N. E. 65, and Ellis v. Vernon I., L. & W. Co., 
 86 Tex. 109, 23 S. W. 858, may be regarded as extending the doc- 
 trine of non-interference with the receiver's possession to its extrem.^ 
 limits, since the lien of the judgment creditor having been perfected 
 by levying his execution before the appointment of the receiver, it 
 would seem, upon principle, to be the better doctrine that the rights 
 thus acquired are paramount to the receivership, and that the judg- 
 ment creditor should be permitted to proceed with his levy and sale, 
 without being required to seek relief in the cause in which the re- 
 ceiver is appointed." But, it may be asked, has not the learned au- 
 thor, in thus speaking of these cases as a new departure, overlookcil 
 the leading case on the whole subject, Wiswall v. Sampson?
 
 g 166 EQUITABLE REMEDIES. 320 
 
 can never result in "the hardship on judgment cred- 
 itors" which would ensue "if they could be restrained 
 from enforcing collection of a judgment and lien given 
 by the court indefinitely."^"^* 
 
 § 168. Property in Receiver's Possession cannot be Seized 
 for Taxes — The principle that the receiver's possession 
 is exclusive, and will be protected from interference 
 without leave of the court whose hand he is, is strik- 
 ingly illustrated by the rule, firmly established in the 
 federal courts, that property in the receiver's possession 
 is exempt from levy and sale by state officers in col- 
 lection of taxes.^*^^ Such levy and sale may be en- 
 
 104 Clark, J., concurring in result in Pelletier v. Greenville Lumber 
 Co., 123 N. C. 596, 6S Am. St. Eep. 837, 31 S. E. 855. 
 
 105 In In re Tyler, 149 U. S. 164, 13 Sup. Ct. 785, 13 L. ed. 689, 
 the court states: "The general doctrine that property in the posses- 
 sion of a receiver appointed by a court is in custodia legis, and that 
 unauthorized interference with such possession is punishable as a 
 contempt, is conceded, but it is contended that this salutary rule has 
 no application to the collection of taxes. Undoubtedly, property so 
 situated is not thereby rendered exempt from the imposition of taxes 
 by the government within whose jurisdiction the property is, and 
 the lien for taxes is superior to all other liens whatsoever except 
 judicial costs, where the property is rightfully in the custody of the 
 law; but this does not justify a physical invasion of such custody, 
 and a wanton disregard of the orders of the court in respect of it. 
 The maintenance of the system of cheeks and balances characteristic 
 »f republican institutions requires the co-ordinate departments of 
 government, whether federal or state, to refrain from any interfer- 
 ence with the independence of each other; and the possession of prop- 
 erty by the judicial department cannot be arbitrarily encroached upon^ 
 «ave in violation of this fundamental principle. 
 
 "The levy of a tax warrant, like the levy of an ordinary fieri facias, 
 sequestrates the property to answer the exigency of the writ; but 
 property in the possession of the receiver is already in sequestration, 
 already held in equitable execution, and, while the lien for taxes 
 must be recognized and enforced, the orderly administration of jus- 
 tice requires this to be done by and under the sanction of the court. 
 It is the duty of the court to see to it that this is done, and a seizure 
 of the property against its will can only be predicated upon the as-
 
 321 THE EECEIVER'S POSSESSION. § 168 
 
 joined,^ °® and the officer making the same may be pun- 
 ished for contempt ;^*''^ and it is held that such sale is 
 void and confers no title upon the purchaser,^ **^ and 
 that a judgment for the amount of the taxes may be 
 removed as a cloud upon title.^**^ This conclusion, says 
 Chief Justice Fuller, "does not involve interruption in 
 the payment of taxes, or the displacement or impair- 
 ment of the lien therefor ; but, on the contrary, it makes 
 it the imperative duty of the court to recognize as para- 
 mount, and enforce with promptness and vigor, the just 
 claims of the authorities for the prescribed contribu- 
 tions to state and municipal revenue."^ ^*^ The usual 
 
 Bumption that the court will fail in the discharge of its duty — an 
 assumption carrying a contempt upon its face." See King v. Wooten, 
 2 U. S. App. 651, 54 Fed. 612, 4 C. C. A. 519; Ex parte Chamberlain, 
 55 Fed. 706; Cakes v. Myers, 68 Fed, 807; contra, Central Trust Co. 
 V. Wabash etc. Co., 26 Fed. 11. For state courts following the same 
 rule, see Cleveland v. McCravy, 46 S. C. 252, 24 S. E. 175; Weaver 
 V. Duncan (Teun. Ch. App.), 56 S. W. 39. 
 
 106 In re Tyler, siiitra; Ex parte Chamberlain, 55 Fed. 706; Oakes 
 V. Myers, 68 Fed. 807; Burleigh v. Chehalis County, 75 Fed. 873, 34 
 L. R. A. 393; Clark v. McGhee, 87 Fed. 789, 31 C. C. A. 321; Virginia, 
 T. & C. Co. V. Bristol Land Co., 88 Fed. 134 (the receiver may apply 
 for the injunction by petition in the original suit). 
 
 107 In re Tyler, supra. 
 
 108 Virginia, T. & C. Co. v. Bristol Land Co., 88 Fed. 134. 
 
 109 Burleigh v. Chehalis County, 75 Fed. 873, 34 L. E, A. 393. 
 
 110 In re Tyler, supra. See Ex parte Chamberlain, 55 Fed. 704- 
 706, stating: "There can be no doubt that property in the hands of 
 a receiver of any court, either of a state or of the United States, is 
 as much bound for the payment of taxes, state, county and municipal, 
 as any other property. Persons cannot, by coming into this court, 
 and, for the promotion of their interests, applying for and obtaining 
 the appointment of receivers, obtain exemption from the paramount 
 duty of a citizen. For this reason, receivers in this district pay all 
 just and lawful taxes without asking or needing the sanction of the 
 court, and in their accounts such payments are passed without ques- 
 tion. But, on the other hand, receivers are not bound to pay a tax 
 in their judgment unlawful, without the order of the court; and when 
 they consider the legality of the tax questionable it is their right — 
 their manifest duty — to apply to the court either for instruction or- 
 
 Equitable Remedies^ Vol. 1—21
 
 § 169 EQUITABLE EEMEDIES. S22 
 
 and proper course pursued by the tax officer is by inter- 
 vention in the receivership suit.'^^ 
 
 § 169. Other Forms of Interference; Strikes; Arrest; etc. — 
 Conspiracies by striking workmen to interfere with the 
 operation of railroads in the hands of receivers have 
 been the subject of much adjudication within recent 
 years. While this subject may more appropriately be 
 taken up in another connection, the rule should here be 
 noted that any willful attempt by anyone, with knowl- 
 edge that the road is in the hands of the court, to pre- 
 vent or impede the receiver from complying with the 
 order of the court in running the road, when the at- 
 tempt is unlawful, and as between private individuals 
 would give a right of action for damages, is a contempt 
 of the order of the court ^^^ 
 
 Immunity from arrest is extended to the receiver for 
 acts done in discharge of the duties imposed upon him 
 by the court, though not for acts done in violation of 
 
 protection. Especially is this the case when the question arises be- 
 tween the receiver and persons in the state, county, and municipal 
 government aa to the proper construction to be given to the law, 
 upon which individuals may well differ, and it is his right and mani- 
 fest duty to go to the court, whose creature he is, for instruction. 
 He [the receiver] therefore pursued the proper course when he came 
 in by this petition." See, also, to the same effect, Lamkin v. Bald- 
 win etc. Co., 72 Conn. 59, 43 Atl. 593, 44 L. R. A. 786; Greeley v. 
 Provident Sav. Bank, 98 Mo. 458, 11 S. W. 980. 
 
 111 In re Tyler, supra; Spalding v. Commonwealth, 88 Ky. 135, 10 
 S. W. 420 (the court may grant leave to sue the receiver in such 
 case); Weaver v. Duncan (Tenn. Ch. App.), 56 S. W. 39 (same). 
 
 112 Thomas v. Cincinnati, N, O. & T. P. Ry, Co., 62 Fed. 803, per 
 Taft, Cir. J.; Secor v. Eailroad Co., 7 Biss. 513, Fed. Cas. No. 12,605; 
 In re Doolittle, 23 Fed. 544; United States v. Kane, 23 Fed. 748; In 
 re Wabash E. Co., 24 Fed. 217; In re Higgins, 27 Fed. 443; Beers 
 v. Wabash, St. L. & P. E. Co., 34 Fed. 244; In re Acker, 66 Fed. 290. 
 On the general subject of injunctions in strike cases, see post, chap- 
 ter XXVIII.
 
 323 THE EECEIVEE'S POSSESSION. i ia» 
 
 the ordinary criminal statutes of a state.**' Distrain- 
 ing for rent upon property in the receiver's possession, 
 without leave;*** searching premises in his possession 
 without a warrant, and seizing goods therein ;**° and 
 removing a building from the premises**^ — clearly con- 
 stitute acts of contempt. It is held, in England, that 
 a libel on the business conducted by a receiver and man- 
 ager amounts to a contempt, in a case where a former 
 clerk of the firm sent around a circular to the custom- 
 ers of the firm, containing an unfair statement of the 
 effect of the order appointing the receiver, and solicit- 
 ing their custom for his own business.**'^ 
 
 It has been held, following the analogy of the cases 
 concerning execution sales of lands and other property 
 in the receiver's hands, that the sale of such lands un- 
 der a power in a trust deed which is a first lien thereon 
 is void, even though it was error for the court not to 
 permit such sale.**^ But those cases do not apply to 
 prevent a sale of property of which the receiver had no 
 possession or right of possession, as where a corpora- 
 tion contracted to purchase certain personal property, 
 and afterwards refused to take and pay for it according 
 to the contract, and the vendor, after the subsequent 
 appointment of a receiver of the corporation, and upon 
 notice to him, elected to sell the property and hold him 
 for the balance.*** 
 
 113 United States v. Murphy, 44 Fed. 39, holding arrest a con- 
 tempt. 
 
 114 Noe V. Gibson, 7 Paige, 513. 
 
 115 In re Swan, 150 U. S. 637, 14 Sup. Ct. 225, 37 L. ed. 1207. 
 
 116 Delozier v. Bird, 123 N, C. 689, 31 S. E. 834. 
 
 117 Helmore v. Smith, 35 Ch. D. 449. Also, tampering with the 
 receiver's employees and inducing them to join a rival business was 
 restrained by injunction in Dixon v. Dixon, [1904] 1 Ch. 161. 
 
 118 Scott V. Crawford, 16 Tex. Civ, App. 477, 41 S. W. 697. 
 
 119 The receiver "had only the right to receive the property pur- 
 chased by the corporation upon paying the agreed price. No fund or
 
 §170 EQUITABLE EEMEDIES. ' 324 
 
 § 170. Conflicting Appointments of Receivers. — It often 
 happens that proceedings looking toward the appoint- 
 ment of receivers are instituted in courts having the 
 same territorial jurisdiction, existing side by side. Ex- 
 amples of courts having concurrent territorial juris- 
 diction are the courts of the state and the courts of the 
 United States within the district; or the courts of dif- 
 ferent counties or judicial districts in the state whose 
 territorial jurisdiction extends throughout the state. 
 In such cases considerable confusion and diversity of 
 opinion have existed among different courts as to the 
 principles which should control. The following results 
 are probably sustained by the better reasoning and au- 
 thority : 1. Where, in the first proceeding, the court has 
 actually got possession through its receiver or other pro- 
 cess in rem of the thing before the second proceedings 
 are begun, that possession will not be disturbed by the 
 second court.^^^ 2. Where the first proceeding is an 
 in rem proceeding or is in the nature of a proceeding 
 in rem, though that court has not yet actually seized 
 the property, the first court will retain exclusive juris- 
 
 property that had passed into the hands of the receiver was attempted 
 to be disposed of or sold": Moore v. Potter, 155 N. Y. 481, 63 Am. 
 St. Rep. 692, 50 N. E. 271. 
 
 120 Baltimore & O. E. E. v. Wabash E. E. Co., 119 Fed. 678; Merritt 
 V. American Steel Barge Co., 79 Eed. 228, 24 C. C. A. 530; Knott v. 
 Evening Post Co., 124 Fed. 342; Gaylord v. Fort Wayne etc. E. R. 
 Co., 6 Biss. 286, Fed. Cas. No. 5284; Shields v. Coleman, 157 U. S. 
 168, 15 Sup. Ct. 570, 39 L. ed. 660; Moran v. Sturgis, 154 U. S. 256, 
 14 Sup. Ct. 1019, 38 L. ed. 981, citing many authorities; Byers v. Mc- 
 Auley, 149 U. S. 608, 13 Si^p. Ct. 906, 37 L. ed. 367; Taylor v. Carryl, 
 20 How. 583, 15 L. ed. 1028, a leading case; Buck v. Colbath, 3 Wall. 
 334, 18 L. ed. 257. In Heidritter v. Elizabeth Oil Cloth Co., 112 U. S. 
 294, 305, 5 Sup. Ct. 135, 28 L. ed. 729, the court says: "Where the 
 object of the action requires the control and dominion of the prop- 
 erty involved in the litigation, that court which first acquires posses- 
 Bion, or that dominion which is equivalent, draws to itself the exclu- 
 Bive right to dispose of it for the purposes of its jurisdiction." See, 
 also, Pulliam v. Osborne, 17 How. 471, 15 li. ed. 154.
 
 325 KECEIVERS,- CONFLICTING APPOINTMENTS. 9 170 
 
 diction.^21 Jq i\^{^ connection, however, difficult ques- 
 tions arise as to when the proceeding is or becomes in 
 the nature of an in rem proceeding. Thus, take the or- 
 dinary case of a foreclosure proceeding, say, of a rail- 
 road , where the bill asks the final relief of sale and the 
 intermediate relief of a receiver pendente lite. Of 
 course such a proceeding is not strictly an in rem pro- 
 ceeding, because the element of notice to all the world 
 is absent, yet it is plain that the ultimate purpose of 
 the suit is a change in title and that as soon at least as 
 possession is rightfully taken, the proceeding begins 
 to assume many of the characteristics of an in rem pro- 
 ceeding. At what particular point shall we say the 
 proceeding partakes of this character? Some courts 
 say (a) that the in rem character attaches to the pro- 
 ceeding from the time of filing the bill;^^^ (b) others, 
 from the time of any order in the proceeding indicating 
 that the court has taken jurisdiction of the case, especi- 
 ally if such order affects possession, as e. g., where the 
 subpoena contains a restraining order ;^2^ (c) other 
 cases consider that jurisdiction of the res attaches at 
 the date of service of subpoena, from which time, un- 
 der the chancery practice, subsequent purchasers are 
 
 121 Farmers' Loan and Trust Co. v. Lake Street Elevated E. E. 
 Co., 177 U. S. 51, 20 Sup. Ct. 564, 44 L. ed. 667; Guaranty T. Co. v. 
 North Chicago St. E. Co., 130 Fed. 801; Knott v. Evening Post Co., 
 124 Fed. 342; In re Schuyler's Steam Tow-Boat Co., 136 N. Y. 169, 32 
 N. E. 623, 20 L. E. A. 391, and note; In re Christian Jensen Co., 128 
 N. Y. 550, 28 N. E. 665; Eogers & Baldwin Co. v. Cleveland Building 
 Co., 132 Mo. 442, 53 Am. St. Eep. 494, 34 S. W. 57, 31 L. E. A- 335; 
 Kurtz V. Phila. etc. E. E. Co., 187 Pa. St. 59, 40 Atl. 988. 
 
 122 Gaylerd v. Fort Wayne M. & C. E. Co., 6 Biss. 286, Fed, Caa. 
 No. 5284. 
 
 123 Appleton Water Co. v. Central T. Co., 93 Fed. 286, 35 C. C. A. 
 302: "The entry of an order upon filing of the bill for any purpose 
 involved in the action, and especially one tending to the possession 
 by the court of the res."
 
 { 170 EQUITABLE REMEDIES. 326 
 
 affected with notice j^^* (d) other cases hold that the 
 court making the first appointment of a receiver shall 
 have exclusive jurisdiction of the res/^s ^^^ while still 
 another view insists on the test of actual seizure in all 
 cases.^-*^ A final view holds, (f) as between the im- 
 mediate parties, that the exclusive jurisdiction attaches 
 from the time of filing the bill.^" jt would seem, in 
 
 124 Wilmer v. Atlanta etc. E. Co., 2 Wood, 409, Fed. Caa. No. 17,775 
 (opinion of Woods, C. J.); Adams v. Mercantile Trust Co., 66 Fed. 
 •21, 15 C. C. A. 1; Illinois Steel Co. t. Putnam, 68 Fed, 515, 15 C. C. 
 
 A. 556; Farmers' Loan & Trust Co. v. Lake Street Elev. E. E. Co., 
 177 U. S. 51, 61, 20 Sup. Ct. 564, 44 L. ed. 667; Haughwout v. Murphy, 
 22 N. J. Eq. 536, 545; Gluck & Becker on Eeceivers, 2d ed., 99; Bell 
 T. Ohio L. & T. Co., 1 Biss. 260, Fed. Caa. No. 1260. 
 
 125 In re Schuyler's Steam Tow-Boat Co., 136 N. T. 169, 32 N. E. 
 i23, 20 L, E. A. 391; In re Christian Jensen Co., 128 N. Y. 550, 28 
 N. E. 665. 
 
 126 Bradley, C. J., in Wilmer v. Atlanta etc. Co., 2 Wood, 410, Fed. 
 Cas. No. 17,775; Thompson on Corporations, $ 6855; East Tenn. etc. 
 
 B. Co. V. Atlanta etc. E. Co., 49 Fed. 608, 15 L. E. A. 109; Knott v. 
 Evening Post Co., 124 Fed. 342. 
 
 127 Farmers' Loan & Trust Co. ▼. Lake Street Elev. E. E. Co., 177 
 U. 8. 48, 60, 20 Sup. Ct. 564, 44 L. ed. 667. In this caa© the bill was 
 illed first in the federal court praying foreclosure, but before ser- 
 vice, a summons was served in an action in the state court begun by 
 defendant to restrain plaintiff from proceeding to foreclose, alleging 
 •onspiracy, etc. The court said: *'As between the irnmediate parties 
 im. a proceeding in rem, jurisdiction must be regarded aa attaching 
 when the bill is filed and process has been issued." Cf. United States 
 V. Supervisors of Johnson Co., 7 Wall. 196. It will be noted that 
 in many of the cases, priority is determined by a small fraction of 
 a day: East Tennessee etc. E. Co. v. Atlanta etc. E. Co., 49 Fed. 608, 15 
 L. E. A. 109; North v. Piedmont Bank of Morganton, 121 N. C. 343, 
 28 S. E. 488. In New York Security & T. Co. v. Saratoga G. & E, L. 
 Co., 159 N. Y. 137, 45 L. E. A. 132, 53 N. K 758, a receiver in seques- 
 tration proceedings and a receiver in foreclosure proceedings were 
 appointed "at the same instant of time." The question involved 
 was which receiver was entitled to certain income of the company, 
 the foreclosure receiver claiming under a clause in the mortgage mak- 
 ing such income subject to the lien thereof. The court holds that 
 ihe lien of the mortgage, bo far as concerns future earnings, is con- 
 nLmmated only by taking possession, and there can be no retroactive
 
 3S7 EECEIVEBS; CONFLICTING APPOINTMENTS. S 170 
 
 the absence of authority, that the question should be 
 governed by the principles regarding notice,^ ^^ in which 
 event only those dealing with the property after service 
 of subpoena would have constructive notice of the bill, 
 and this is probably the prevailing rule. 3. Where the 
 first proceeding is not in rem in its nature, and the 
 effect of the proceeding will not be to disturb the title 
 of the res, a receiver may be appointed of the entire 
 property, notwithstanding the pendency of the prior 
 proceeding. For example, a receiver is sought to man- 
 age the affairs of an insolvent corporation until such 
 time as the corporation itself can pay its debts and re- 
 sume the management of its property; there is no rea- 
 son why a receiver should not be appointed in proceed- 
 ings which, though subsequently begun, have as their 
 object the final disposition of the property.^^^ This 
 important distinction between proceedings in the na- 
 ture of proceedings in rem and other proceedings has 
 
 operation given to his possession so as to defeat the title which the 
 receiver in the sequestration proceedings obtained by the order of ap- 
 pointment. 
 
 128 Conner v. Long, 104 U. S. 229, 26 L. ed. 723; Freeman v. Howe, 
 24 How. 450, 16 L. ed. 749. 
 
 129 In Shields v. Coleman, 157 U. S. 168, 15 Sup. Ct. 570, 4 L. ed. 
 660, Brown, J,, says: "The mere fact that, in the progress of an at- 
 tachment or other like action, an exigency may arise, which calls 
 for the appointment of a receiver, does not make the jurisdiction of 
 the court in that respect relate back to the commencement of the ac- 
 tion." See, also. Guaranty T. Co. v. North Chicago St, R. Co., 130 
 Fed. 801, 65 C. C. A. 65; Illinois Steel Co. v. Putnam, 68 Fed. 515, 
 15 C. C. A. 556, holding that the filing of a bill for the appointment 
 of a receiver of an insolvent corporation to take charge of the as- 
 sets until the corporation shall pay its debts or resume control is not 
 Kuch taking in gremio legis as to preclude another court from ap- 
 pointing a receiver. See, also, De la Vergne v. Palmetto Brewing Co., 
 72 Fed. 579. An instructive discussion of the nature of an in rem 
 seizure will be found in First National Bank of Oswego v. Dunn, 97 
 N. Y, 149, where it is held that property held by the sheriff under 
 a writ of replevin is in custodia leffis, while property held on execu- 
 tion is not.
 
 5 170 EQUITABLE REMEDIES. 328 
 
 often been overlooked, and the determination of the im- 
 portant question arising from different appointments 
 by courts of concurrent jurisdiction has erroneously 
 been made to depend on the test: which court has first 
 obtained jurisdiction of the controversy^^" — and not on 
 the true test: which court has first obtained jurisdic- 
 tion of the res. Many of the courts have founded their 
 decisions, properly yielding jurisdiction to the courts 
 ■\^hich had first obtained jurisdiction, upon the ground 
 of comity, when in fact they had better have been rested 
 upon the basis that the second court had no jurisdic- 
 tion of the res because some other tribunal already had 
 it.^^^ One of the earlier cases in the United States su- 
 preme court shows the true extent of the principle, 
 holding a sale made under an execution at law void, 
 where the property was in the custody of a receiver ap- 
 pointed by the state court in a suit in chancery.^ ^^ 
 
 130 The test is, for example, incorrectly stated in 23 Am. & Eng. 
 Ency. of Law, 2d ed., p. 1112. 
 
 131 That the rule is not a mere rule of comity but a question of 
 jurisdiction, see Dillon v. O. S. L. etc. By. Co., 66 Fed. 622; Baltimore 
 
 6 O. E. E. Co. V. Wahash E. E. Co., 119 Fed. 678, 57 C. C. A. 322; Mer- 
 ritt V. American Steel Barge Co., 79 Fed. 226, 24 C. C. A. 530; Covell 
 V. Heyman, 111 U. S. 176, 4 Sup. Ct. 355, 28 L. ed. 390. Some au- 
 thorities say the rule is one of comity: Gaylord v. Fort Wayne etc. 
 E. Co., 6 Biss. 286., Fed. Cas. No. 5284; De la Vergne v. Palmetto 
 Brewing Co., 72 Fed. 579. 
 
 132 Wiswall V. Sampson, 14 How. 52, 14 L. ed. 322. See ayite, §§ 
 166, 167.
 
 329 ACTIONS AGAINST THE KECEIVER, i 171 
 
 CHAPTER V. 
 
 171- 
 § 
 
 -179. 
 171. 
 
 § 
 
 s 
 
 172. 
 173. 
 
 § 
 
 174. 
 
 § 
 
 175. 
 
 § 
 
 § 
 s 
 
 176. 
 
 177. 
 178. 
 179. 
 
 ACTIONS AGAINST THE RECEIVER. 
 
 ANALYSIS. 
 
 IS 171-179. Actions against the receiver. 
 
 General rule; leave must be obtained from the appoint- 
 ing court. 
 
 Whether leave to sue is a "jurisdictional fact." 
 
 Suits against federal receivers; rule now modified br 
 act of Congress. 
 
 Same; such suits are "subject to the general equity- 
 jurisdiction" of the court of the appointment. 
 
 Leave of court not necessary where receiver is a tres- 
 passer. 
 
 Leave to sue receiver, when granted. 
 
 Practice; whether by petition or independent action. 
 
 Eeceiver's riglit to appeal. 
 
 Judgment against receiver, how enforced; as against 
 successor in office; in case of his discharge. 
 
 § 171. Actions Against Receiver — General Rule; Leave 
 must be Obtained from Appointing Court. — It is a well-estab- 
 lished rule that before suit is brought against a re- 
 ceiver in his official capacity, leave should be obtained 
 from the court by which he was appointed,^ in the ab- 
 
 1 See the following, among a multitude of cases: Searle v. Cboate, 
 25 Ch. D. 723 (suit to restrain receiver from preventing payment 
 of rents by tenants); Barton v. Barbour, 104 U. S. 126, 26 L. ed. 
 673; affirming s. c, 3 McAr. 212, 36 Am. Rep. 104; Porter v. Sabia, 
 149 U. S. 473, 13 Sup. Ct. 1008, 37 L. ed. 815; People's Bank v. Cal- 
 houn, 102 U. S. 256, 26 L. ed. 101; Thompson v. Scott, 4 Dill. 508, 
 Fed. Cas. No. 13,975; Werner v. Murphy, 60 Fed. 769; Foreman v. 
 Central Trust Co., 71 Fed. 776, 18 C. C. A. 321; Louisville Trust Co. 
 T. Cincinnati, 76 Fed. 296, 22 C. C. A. 334; Stateler v. California Nat. 
 Bank, 77 Fed. 43; Jones v. Schlapback, 81 Fed. 274; Eoss v. Heck- 
 man, 84 Fed. 6; Eidge v. Manker (C. C. A.), 132 Fed. 599; Minot v. 
 Mastin, 95 Fed. 734, 37 C. C. A. 234; Talladega Mercantile Co. v. 
 Jenifer Iron Co., 102 Ala. 259, 14 South. 743; Southern Granite Co.
 
 i 171 EQUITABLE BEMEDIES. 830 
 
 sence of statutes authorizing suits without such leave. 
 It is generally agreed that the rule applies not only 
 to suits the object of which is to take from his posses- 
 sion property which he is holding by order of the court, 
 but also to suits brought against him to recover a money 
 demand or damages.^ The reasons for the rule have 
 
 T. Wadsworth, 115 Ala. 570, 22 South. 157; Montgomery v. Enslen^ 
 126 Ala. 654, 28 South. 626; Links v. Connecticut Eiver Bkg, Co., 66 
 Conn. 277, 33 Atl. 1003; De Graff enried v. Brunswick etc. E. B. Co., 
 §7 Ga. 22; Fort Wayne, M. & C. R. Co. v. Mellett, 92 Ind, 535 (eject- 
 ment); Keen v. Breckenridge, 96 Ind. 69; Wayne Pike Co. v. State, 
 134 Ind. 672, 34 N. E. 440; Meredith Village Sav. Bank v. Simpson, 
 22 Kan. 414; People ex rel. Tremper v. Brooks, 40 Mich. 333, 29 Am. 
 Rep. 534; Burk v. Muskegon Mach. & F. Co., 98 Mich. 614, 57 N. W. 
 804; Citizens' Com. & Sav. Bank v. Bay Circuit Judge, 110 Mich. 
 C33, 68 N. W. 649; Wade v. Eingo, 62 Mo. App. 414 (leave of court 
 obtained in vacation) ; In re Commercial Bank, 35 App. Div. 224, 
 64 N. Y. Supp, 722 (from what court leave must be obtained, under 
 the New York Code); Payne v. Baxter, 2 Tenn. Ch. 517; Melendy v. 
 Barbour, 78 Va. 544; Jones v. Browse, 32 W. Va. 444, 9 S. E. 873; 
 and other cases in the notes to this and the following sections. 
 See, also, on the general subject, monographic note, Malott v. Shimer, 
 74 Am. St. Rep. 285-300. 
 
 It is held not to be essential to the validity of an order granting 
 leave to bring an action against a receiver, that notice of the appli- 
 cation for the order should be given to the parties in the case in 
 which the receiver was appointed. Notice of such application to th© 
 receiver is sufficient: Potter v. Bunnell, 20 Ohio St. 150. 
 
 The general principle of the text is held not to apply to a suit 
 in a federal court by the owner of a patent to restrain its infringe- 
 ment by a receiver of a state court, since the federal courts have 
 exclusive jurisdiction to determine questions as to the validity and 
 infringement of patents: Hupfeld v. Automaton Piano Co., 66 Fed. 
 788. 
 
 In Eatcliff v. Adler, 71 Ark. 269, 72 S. W. 896, it was held that 
 an appellate court will not reverse a judgment because consent was 
 »ot obtained, when rendered by the same court and the same judge 
 that has charge of the receivership proceedings. 
 
 2 For example, to suits against railroad receivers to recover dam- 
 ages for injuries received at the hands of the receiver's servants, 
 or on other liabilities incurred by the receiver; see Barton v. Bar- 
 bour, 104 U. S. 126, 26 L. ed. 673, affirming 3 McAr. 212, 36 Am. Eep. 
 104; Thompson v. Scott, 4 Dill. 508, Fed. Cas. No. 13,975 (an in-
 
 331 ACTIONS AGAINST THE KECEIVER. I 171 
 
 been thus stated: "One court having custody of prop- 
 erty through its receiver cannot admit that another 
 court, in defiance of its orders, has power to define 
 what are his duties with reference to such property. 
 To admit this is substantially to say that one co-ordi- 
 nate court can sue another Every consideration 
 
 of economy, of the prevention of vexatious litigation 
 and conflicts of jurisdiction, would indicate the impor- 
 tiince of protecting the exclusive possession of the re- 
 ceiver by an inflexible rule of law."^ It is argued that 
 if judgments in such suits be invalid, no purpose can 
 be effected thereby save the embarrassment of the re- 
 ceiver by expensive and useless litigation; that the 
 judgments, even if repudiated, would cast a cloud upon 
 the title to the property in the receiver's possession and 
 prejudice its sale; while if their validity be recognized, 
 the court of appointment would sit merely to register 
 and pay the judgments and decrees of other courts.* 
 
 Btructive opinion); Jones v. Schlapback, 81 Fed. 274; De Graffenried 
 T. Brunswick etc. E. R., 57 Ga. 22; Payne v. Baxter, 2 Tenn. Ch. 517; 
 Melendy v. Barbour, 78 Va. 544. The objections to the doctrine, as 
 applied to suits upon liabilities incurred by railroad receivers, are 
 Ftated with great force in the dissenting opinion of Miller, J., in 
 Barton v. Barbour, supra. 
 
 » Meredith Village Sav. Bank v. Simpson, 22 Kan. 414, per Horton, 
 
 C. J. 
 
 4 Thompson v. Scott, 4 Dill. 508, Fed. Gas. No. 13,975, per Love, 
 
 D. J. The opinion is so vigorous a presentation of what has come 
 to be the generally accepted rule, that I venture to quote from it at 
 some length: "Such judgment against the receiver would be either 
 ▼alid or invalid. If invalid, it follows that suits against the receiver, 
 resulting in such judgments, would be perfectly futile and useless, 
 and for that reason they ought to be stopped by the receiver's court; 
 for certainly such suits would harass and embarrass the receiver, 
 and expose him to the heavy costs of litigation; and, if they resulted 
 in no benefit to the parties prosecuting them, it would be simply 
 idle, if not absurd, to allow such actions to proceed against the re- 
 ceiver. But, doubtless, if the doctrine of the Iowa court [Allen v. 
 Central B. Co., 42 Iowa, 683] be sound, judgments against the re-
 
 { 171 EQUITAJJLE KE:>il:;UlES. 332 
 
 In the loading case upon the subject it is said: "If he 
 [the plaintiff in a suit against the receiver] has the 
 right, in a distinct suit, to prosecute his demand to 
 judgment without leave of the court appointing the re- 
 ceiver, he would have the right to enforce satisfaction 
 of it without leave. By virtue of his judgment he could, 
 unless restrained by injunction, seize upon the prop- 
 erty of the trust or attach its credits. If his judgment 
 were recovered outside the territorial jurisdiction of 
 the court by which the receiver was appointed, he could 
 do this, and the court which appointed the receiver and 
 was administering the trust assets would be impotent 
 to restrain him. The effect upon the property of the 
 trust of any attempt to enforce satisfaction of his judg- 
 ment would be precisely the same as if his suit had been 
 
 ceiver would be valid to all intents and purposes, and they must 
 be so treated by all courts in which they should be pleaded. This 
 being the case, what follows? Why, that the court of equity, having 
 control of the fund, would have no alternative but to recognize and 
 pay the judgments and decrees rendered elsewhere against its re- 
 ceiver, and if the fund consisted, in whole or in part, of real estate, 
 the judgments against the receiver would become liens against the 
 property, thus encumbering and casting a cloud upon the title. Un- 
 der such conditions the sale of the property, under the decree of the 
 court of equity, to satisfy its judgments, would be hopeless and in- 
 effectual. Thus would the whole purpose of the litigation in equity 
 and of the taking possession of property through the receiver, be 
 utterly defeated. The absurdity of such a result requires no ex- 
 planation Again, if any and every body may sue our receiver 
 
 without our consent, along the line of the road, innumerable suits 
 may be prosecuted against him, and he may be thus exposed to 
 the costs and expenses of ruinous litigation. Now, he is our offi- 
 cer, and suits would be prosecuted against him as such, and not 
 against him as an individual. We have placed him in the breach 
 and exposed him to a deadly fire. Shall we leave him naked to his 
 enemies? Shall the court abandon him to his fate and compel him 
 to pay the costs and charges of a ruinous litigation out of his own 
 pocket? Or, if the court should authorize him to employ counsel and 
 pay the costs of numberless suits out of the trust fund, what then? 
 Why, it would follow that the fund in our hands might be wasted 
 and squandered in useless and fruitless litigation," etc.
 
 333 ACTIONS AGAINST THE RECEIVEE. S 171 
 
 l)i()U<»ht for the purpose of taking property from the 
 possession of the receiver. A suit, therefore, brought 
 without leave to recover judgment against a receiver 
 for a money demand, is virtually a suit, the purpose 
 of which is, and the effect of which may be, to take 
 the property of the trust from the receiver's hands and 
 apply it to the payment of the plaintiff's claim, with- 
 out regard to the rights of other creditors, or the order 
 of the court which is administering the trust property. 
 Yv^e think, therefore, that it is immaterial whether the 
 suit is brought against the receiver to recover specific 
 property or to obtain judgment for a money demand. 
 In either case leave should be first obtained."^ The ob- 
 jection that, by leaving all questions relating to the lia- 
 bility of receivers in the hands of the court appointing 
 them, persons having claims against the insolvent cor- 
 poration or against the receiver will be deprived of 
 their constitutional right to a trial by jury, is thus met, 
 in the same case: "Those who use this argument lose 
 sight of the fundamental principle that the right of 
 trial by jury, considered as an absolute right, does not 
 extend to cases of equity jurisdiction. If it be conceded 
 or clearly shown that a case belongs to this class, the 
 trial of questions involved in it belongs to the court 
 itself, no matter what may be its importance or com- 
 plexity."* 
 
 The consequences resulting from the prosecution of a 
 suit against the receiver in his official capacity are, that 
 the plaintiff in such suit may be attached as for a con- 
 tempt,'^ or restrained by an injunction.^ 
 
 6 Barton v. Barbour, 104 U. S. 126, 26 L. ed. 673, per Woods, J. 
 e Barton v, Barbour, 104 U. S. 126, 26 L, ed. 673, per Woods, J. 
 
 7 Lane v. Capsey, [1891] 3 Ch. 411; Thompson v. Scott, 4 DUl. 508, 
 Fod. Cas. No. 13,975. 
 
 8 Evelyn v. Lewis, 3 Hare, 472; Stateler v. California Nat. Bank, 
 77 Fed. 43; Jones v. Schlapback, 81 Fed. 274; Montgomery v. Enslen, 
 126 Ala. 654, 28 South. 626.
 
 1 172 EQUITABLE KEMEDIE3. 334 
 
 § 172. Whether leave to Sue is a "Jurisdictional Fact." 
 It is the rule of the federal courts, unless changed by 
 statute, and of the courts of many of the states, that 
 leave to prosecute a suit against a receiver, in his official 
 capacity, without the consent of the court of appoint- 
 ment, is a jurisdictional fact; in other words, that want 
 of leave not only subjects the plaintiff to liability to be 
 attached for contempt, or to be enjoined from the prose- 
 cution of his suit, but takes away the jurisdiction of 
 the court in which the suit was brought to hear and de- 
 termine it. Such leave must, therefore, be averred in 
 the complaint.® In other courts this rule has received 
 most earnest disapproval, both on the grounds of policy 
 and convenience, and on the ground that it ignores and 
 sets aside well-established principles governing the re- 
 lations of courts of law to courts of equity. Says Mr. 
 Justice Miller, in his dissenting opinion in the leading 
 case^" already cited: "I know of no principle nor of 
 
 9 Barton v. Barbour, 104 U. S. 126, 26 L. ed. 673, affirming 3 
 McAr. 212, 36 Am. Eep. 104; Swope v. Villard, 61 Fed. 417; De 
 Graffenried v. Brunswick etc. E. R., 57 Ga. 22; Martin v. Atchison, 
 
 2 Idaho, 624, 33 Pac. 47; Keen v. Breckcnridge, 96 Ind. 69; Wayne 
 Pike Co. V. State, 134 Ind. 672, 34 N. E. 440; Peirce v. Chism, 23 
 Ind. App. 505, 77 Am. St. Rep. 441, 55 N. E. 795; Peirce v. Jones, 
 24 Ind. App. 286, 56 N. E. 683; Manker v. Phoenix Loan Assn. (Iowa), 
 96 N. W. 982; Steel Brick Siding Co. v. Muskegon etc. Co., 98 Mich. 
 616, 57 N. W. 817; Schmidt v. Gayner, 59 Minn. 303, 61 N. W. 
 333, 62 N. W. 265; Smith v. St. Louis & S. F. Ey. Co., 151 Mo. 391, 
 52 S. W. 378, 48 L. R. A. 368; Jones v. Moore, 106 Tenn. 188, 61 S. 
 W. 81, In Brown v. Eauch, 1 Wash. 497, 20 Pac. 785, a decision by 
 a territorial court, it was held that the question of want of leave 
 may be raised for the first time even upon appeal from a judgment 
 against the receiver; but see Elkhart Car Works v. Ellis, 113 Ind. 
 215, 15 N. E. 249 (objection not heard upon motion in arrest of 
 judgment). It has been held in a recent federal case that a decree 
 against a receiver will not be held void, in a collateral proceeding, 
 for failure affirmatively to recite that leave to sue was obtained, 
 when the receiver appeared, defended upon the merits, and asked 
 affirmative relief: Ridge v. Manker (C. C. A.), 132 Fed. 599. 
 
 10 Barton v. Barbour, 104 U. S. 126, 26 L. ed. 673. The reasoning
 
 335 ACTIONS AGAINST THE RECEIVER. S 172 
 
 any precedent whereby a court of law, having before 
 it a plaintiff with a cause of action of which that court 
 has jurisdiction, and a defendant charged in regard to 
 his own act also within the jurisdiction, is bound or 
 is even at liberty to deny the party his lawful right to 
 a trial of his cause because the defendant is receiver of 
 some other court, and to leave the suitor to that court 
 for remedy, when it is known that some of the most 
 important guaranties of the trial to which he is en- 
 titled and which are appropriate to the nature of his 
 case will be denied him. Whatever courts of equity 
 may have done to protect their receivers, and may do 
 to protect the fund in their hands, it is no part of the 
 duty of courts of law to deny to suitors properly before 
 them the trial of their rights which justice requires and 
 which the constitution and the law guarantee." Bj 
 many courts, therefore, the rule is laid down "that the 
 question always is, not one of jurisdiction, but of con- 
 tempt; that the ordinary jurisdiction of other courts 
 is in no manner taken away or affected by the appoint- 
 ment of a receiver; that while the court making the 
 appointment may draw to itself all controversies to 
 which the receiver is a party, it does so by acting di- 
 rectly upon the parties, and not by challenging the ju- 
 risdiction of the other tribunals; that while it may 
 so draw to itself all such controversies, it is not com- 
 pelled to do so, and that not doing so in any particular 
 case, the mere fact of the appointment constitutes no 
 plea to the jurisdiction.''^^ The rule as thus defined, 
 
 of the learned justice who rendered the opinion of the court in this 
 case is also severely criticised in Lyman v. Central Vermont R. Co., 
 59 Vt. 167, 10 Atl. 346. 
 
 11 St. Joseph & D. C. R. R. Co. v. Smith, 19 Kan. 225, 231, per 
 Brewer, J. (now Mr. Justice Brewer of the United States supreme 
 court); Mulcahey v. Strauss, 151 lU. 70, 37 N. E. 702; Flentham v. 
 Stewart, 45 Neb. 640, 63 N. W. 924; Hirshfeld v. Kalisher, 81 Hun,
 
 i 173 EQUITABLE EEMEDIES. 336 
 
 however, appears to be limited to cases where there is 
 no attempt to interfere with the actual possession of 
 the property held by the receiver; ejectment or garnish- 
 ment suits against the receiver without leave will not 
 be entertxiined.^^ It follows from the rule that leave to 
 sue the receiver is not jurisdictional, that the receiver 
 may waive the defense of being sued without leave by 
 a voluntary appearance in the action against him.^* 
 
 § 173. Suits Against Federal Receivers; Rule Now Modi- 
 fied by Act of Congress. — The general rule laid down in 
 the preceding paragraphs was productive of great hard- 
 ship in those cases where parties were forced to sue 
 receivers whose residence was in a jurisdiction different 
 from that where the cause of action arose. A distin- 
 guished and able federal judge has said: "Where prop- 
 erty is in the hands of a receiver simply as a custodian, 
 or for sale or distribution, it is proper that all persons 
 having claims against it, or upon the fund arising from 
 its sale, should be required to assert them in the court 
 appointing the receiver. But a very different question 
 is presented where the court assumes the operation of 
 a railroad hundreds of miles in length, and advertises 
 itself to the world as a common carrier. This brings 
 
 606, 30 N. Y, Supp. 1027; Le Fevre v. Matthews, 39 App. Div. 232, 
 57 N. Y. Supp. 128; Blumenthal v. Brainerd, 38 Vt. 402, 91 Am. 
 Dec. 350; Lyman v. Central Vt. E. Co., 59 Vt, 167, 10 Atl. 346; Town 
 of Eoxbury v. Central Vt. E. Co., 60 Vt. 121, 14 Atl. 92; Kinney v. 
 Crocker, 18 Wis. 74; Colorado Fuel etc. Co. v. Eio Grande S. Ey. 
 Co., 8 Colo. App. 493, 46 Pac. 845; Payson v. Jacobs (Wash.), 80 
 Pac. 429. 
 
 12 St. Louis, A. & S. E. Co. v. Hamilton, 158 111. 366, 41 N. E. 
 777 (ejectment); Blum v. Van Vechten, 92 Wis. 378, 66 N. W. 507 
 (garnishment). 
 
 13 Mulcahey v. Strauss, 151 111. 70, 37 N. E. 702; Flentham v. 
 Stewart, 45 Neb. 640, 63 N. W, 924; Hubbell v. Dana, 9 How. Pr. 
 (N. Y.) 424; Jay's Case, 6 Abb. Pr. (N. Y.) 293; and see Elkhart 
 Car Works Co. v. Ellis, 113 Ind. 215, 15 N. E. 249.
 
 337 ACTIONS AGAINST THE RECEIVEE. I 173 
 
 it into constant and extensive business relations with 
 
 the public All the liabilities incident to the 
 
 operation of a railroad are incurred by a court where 
 it engages in that business; and, when they are in- 
 curred, why should the citizen be denied the right to 
 establish the justice and amount of his demand, by the 
 verdict of a jury in a court of the county where the 
 cause of action arose and the witnesses reside? If the 
 road was operated by its owners or its creditors, the 
 citizen would have this right, and when it is operated 
 for their benefit by a receiver, why should the right be 
 denied ?"^^ To remedy this condition, and save expense 
 to those suing receivers,^ ^ section 3 of the act of Con-, 
 gress approved March 3, 1887 (c. 373; 1 U. S. Comp. 
 Stats., p. 582), provides: "That every receiver or man- 
 
 14 Dowe V. Memphis & L. K. R. Co., 20 Fed. 260, at 268, by Cald- 
 well, J., who continued: "If the denial of the right to sue can be 
 rested on the ground that it saves money for the corporation and 
 its creditors, why not carry the doctrine one degree further, and 
 declare the receiver shall not be liable to the citizen at all for 
 breaches of contract, or any act of malfeasance or misfeasance in 
 hi« office as receiver! This would be a great saving to the estate. 
 The difference is one of degree and not of principle. When a court, 
 through its receiver, becomes a common carrier, and enters the lists 
 to compete with other common carriers for the carrying trade of the 
 country, it ought not to claim or exercise any special privilege de- 
 nied to its competitors, and oppressive on the citizen. The court 
 appointing a receiver of a railroad and those interested in the prop- 
 erty, should be content with the same measure of justice that is 
 meted out to all persons and corporations conducting the like busi- 
 ness. The court appointing a receiver cannot, of course, permit any 
 other jurisdiction to interfere with its possession of the property, 
 or control its administration of the fund; but, in the case of long 
 lines of railroad, the question of the legal liability of its receiver 
 to the demands of the citizen, growing out of the operation of the 
 road, should be remitted to the tribunals that would have jurisdic- 
 tion if the controversy had arisen between the citizen and the rail- 
 road company; giving to the citizen the option of seeking redresa 
 in such tribunals, or in the court appointing the receiver." 
 
 IB Gilmore v. Herrick, 93 Fed. 525. 
 
 Equitable Remedies, Vol. I — 22
 
 I 173 EQUITABLE REMEDIES. 338 
 
 ager of any property appointed by any court of the 
 United States may be sued in respect of auy act or trans- 
 action of his in carrying on the business connected with 
 such property, without the previous leave of court in 
 which such receiver or manager was appointed; but 
 such suit shall be subject to the general equity jurisdic- 
 tion of the court in which such receiver or manager was 
 appointed, so far as the same shall be necessary to the 
 ends of justice."^® The statute has been applied in a 
 number of cases,^'^ and it is held that the suit may be 
 brought in any court of competent jurisdiction;^** but 
 the suit must be in regard to some "act or transaction" 
 in connection with the operation of the property, and 
 unless this is strictly true, leave of court should be ob- 
 tained.^* Under guise of the statute, a party cannot 
 
 16 The act was revised by an act approved August 13, 1888, but 
 was not materially altered. 
 
 17 See the following cases as well as those cited in the succeeding 
 notes: Texus & Pac. R. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 
 L. ed. 829; Erb v. Morasch, 177 U. S. 584, 20 Sup. Ct. 819, 44 L. ed. 
 897; The St. Nicholas, 49 Fed. 671; Wheeler v. Smith, 81 Fed. 319 
 (the statute extends to territorial appointments, for the court in 
 making such appointment acts as a federal court); Trumbull v. Mc- 
 Kuser, 9 Colo. App. 350, 48 Pac. 825; Louisville Southern Ry. Co. v. 
 Tucker's Admr., 105 Ky. 492, 49 S. W. 314; Southern Pac. R. R. v. 
 Maddox, 75 Tex, 300, 12 S. W. 815; Houston & T. C. Ry. Co. v. State 
 (Tex. Civ. App.), 39 S. W. 390 (a suit, at the direction of the gov- 
 ernor, to determine the title to land in possession of a federal re- 
 ceiver was upheld without leave of court having been obtained, 
 without an express reliance on the statute) ; Stolze v. Milwaukee & 
 L. W. R, Co., 104 Wis. 47, 80 N. W. 68. 
 
 18 McNulta v. Lochridge, 141 U. S. 327, 12 Sup. Ct. 11, 35 L. ed. 
 796; Central Trust Co. of N. Y. v. East Tenn. V. & G. Ry. Co., 59 
 Fed. 523. 
 
 19 Central Trust Co. of N. Y. v. East Tenn., V. & G. Ry. Co., 59 
 Fed. 523; Glover v. Thayer, 101 Ga. 824, 29 S. E. 36. Thus, procood- 
 ings to condemn property for a grade crossing can be maintained 
 only by leave of court where receivership is pending: Coster v. 
 Parkers! iirg Branch R. Co., 131 Fed. 115; Buekhannon & N. R. Co. 
 V. Davis (C. C. A.), 135 Fed. 707. A suit to recover for injuries re-
 
 339 ACTIONS AGAINST THE RECEIVER. $ 173 
 
 put in issue the riglit of the receiver to the possession 
 of the property, or his right to control and manage it 
 under the receivership.^" It is said that "suits in which 
 it is sought to deal with the property in the custody of 
 the receivers, to subject it to sale or other remedy, can 
 still be brought only by intervening petition, or by in- 
 dependent bill filed by leave of the court. "^* A garnish- 
 ment proceeding is said not to be a "suit against the 
 receiver, for any act or transaction of his, and such 
 claims must be prosecuted in the manner heretofore setr 
 
 tied A proceeding for garnishment purposes is 
 
 an equitable seizure of the funds and property within 
 the custody of the court."^^ But the supreme court of 
 Minnesota has held that money due from a receiver 
 for indebtedness incurred in operating the road, may 
 be garnished in the state court; they say: "But in this 
 case it will be noticed that what is sought to be reached 
 by garnishment is the property, not of the railway com- 
 pany, but of the defendant, viz,, a debt due him from 
 the receivers. Moreover, while garnishment of a debt 
 is often called a mode of attachment, yet it does not 
 
 ceived before the appointment is not within the statute: Farmers' 
 Loan & Tr. Co. v. Chicago & N. P. R. Co., 118 Fed. 204. 
 
 20 Swope V. Villard, 61 Fed. 417 (a refusal of the receiver to sue 
 for a cause of action in favor of the corporation, is not an ' ' act or 
 transaction in carrying on the business"); Bennett v. Northern Pac. 
 R. Co., 17 Wash. 534, 50 Pac. 496 (the receiver's wrongful claim to 
 an interest in land is not such act as comes within the statute) ; 
 Hallifield v. Wrightsville & T. R. Co., 99 Ga. 365, 27 S. E. 715; Glover 
 V. Thayer, 101 Ga. 824, 29 S. E. 36; J. I. Case Plow Works v. Finks, 
 81 Fed. 529, 26 C. C. A. 46; Dillingham v. Anthony, 73 Tex. 47, 11 
 S. W. 139, 15 Am. St. Rep. 753, 3 L. R. A. 634 (the statute does not 
 apply to a case where it is sought to establish title to personalty, as 
 against the receiver). 
 
 21 Gilmore v. Herrick, 93 Fed. 525. 
 
 22 Central Trust Co. v. East Tenn. V. & G. Ry. Co., 59 Fed. 523; 
 Reisner v. Gulf etc. R. R. Co., 89 Tex. 656, 36 S. W. 53, 59 Am. St 
 Rep. 84, 33 L. R. A. 171 (the case did not discuss the statute).
 
 i 173 EQUITABLE REMEDIEa 340 
 
 effect a specific lien on any property of the garnishee, 
 such as is acquired by the actual seizure of property. 
 The effect of the judgment is merely to determine the 
 existence and amount of the debt, and to substitute the 
 plaintiff for the defendant as the person to whom it is 
 payable. The judgment against the receivers would 
 not be against them personally, but against them offi- 
 cially. No executory process could be issued on it, for 
 that would interfere with the control of the property 
 in the custody of the federal court."^* In applying the 
 statute the federal courts have said : "The third section 
 of the judiciary act of March 3, 1887, authorizing suits 
 to be brought against receivers of railroads, without 
 special leave of the court by which they are appointed, 
 was intended, as we think, to place receivers upon the 
 same plane with railway companies, both as respects 
 their liability to be sued for acts done while operating 
 a railroad and as respects the mode of obtaining ser- 
 vice."^* And it is, therefore, generally held that a fed- 
 eral receiver is subject to an action in a state court, 
 without leave of the federal court, for any damage due 
 by reason of the management of the property, when the 
 
 23 Irvine v. McKechnie, 58 Minn. 145, 49 Am. St. Rep. 495, 59 N. W. 
 987, 26 L. R. A. 218. The court continued: "Under the 'removal 
 »ct' [the act of March 3, 1887, quoted above] the defendant himself 
 could have sued the receivers, and recovered judgment, and we are 
 nnable to see why the plaintiff may not, through garnishee proceed- 
 ings, recover judgment against them for the same claim, or why a 
 jndgment in his favor interferes with property in the custody of the 
 federal court any more than would a judgment in favor of the de- 
 fendant for the same claim." 
 
 24 Eddy V. Lafayette, 49 Fed. 807, 1 C. C. A. 441; s. c., 163 U. S. 
 456, 16 Sup. Ct. 10S2, 41 L. ed. 225 (recognizing the receiver's lia- 
 bility for damages for burning hay by fire set by locomotives) ; Cen- 
 tral Trust Co. V. St. Louis, A. & T. R. Co., 40 Fed. 426 (service on 
 fta agent of the receiver ia binding, though the receiver is not within 
 th« jurisdiction).
 
 341 ACTIONS AGAINST THE RECEIVER. S 174 
 
 injury to property or person has resulted from the neg- 
 ligence of the receiver, his agents or employees.^^ 
 
 § 174. Same; Such Suits are "Subject to the General Equity 
 Jurisdiction" of the Court of the Appointment. — But while 
 the act of Congress grants leave to sue in such cases, 
 it expressly provides that "such suits shall be subject 
 to the general equity jurisdiction of the court in which 
 such receiver was appointed so far as the same shall 
 be necessary to the ends of justice." This is construed 
 as "applying only to suits which seek to interfere with 
 the receiver's possession of property, and to process the 
 execution of which would have that effect; any process, 
 whether for the recovery of such property or for the 
 enforcement and collection of a judgment out of it. 
 These shall be subject to the control of the court ap- 
 pointing the receiver, so far as the ends of justice may 
 require. The time when, and the manner in which, a 
 judgment against the receiver shall be paid; the ad- 
 justment of equities between all persons having claims 
 against the property in his hands ; the just distribution 
 of the funds according to the rights of the several par- 
 ties interested in it — all must necessarily be under the 
 control of the court having custody of the property by 
 its receiver, and shall be subject to its general equity 
 jurisdiction."^^ But where the state court has juris- 
 
 25 Gableman v. Peoria, D. & E. R. R. Co., 179 U. S. 335, 21 Sup. 
 Ct. 171, 45 L. ed. 220; Texas & Pac. R. R. Co. v. Cox, 145 U. S. 593, 
 12 Sup. Ct. 905, 36 L. ed. 829; McNulta v. Lockridge, 137 111. 270, 
 31 Am. St. Rep. 362, 27 N. E. 452, 141 U. S. 327, 12 Sup. Ct. 11, 
 35 L. ed. 796; St. Louis S. W. Ry. Co. v. Holbrook, 73 Fed. 112, 
 19 C. C. A. 385; Ball v. Mabry, 91 Ga. 781, 18 S. E. 64; Malott v. 
 Shiner, 153 Ind. 35, 74 Am. St. Rep. 278, 54 N. E. 101; Fullerton v. 
 Fordyce, 121 Mo. 1, 42 Am. St. Rep. 516, 25 S. W. 587; Robinson v. 
 Mills, 25 Mont. 114, 65 Pac. 114; Meyer v. Harris, 61 N. J. L. 83, 
 38 Atl. 690; Baer v. McCullough, 176 N. Y. 97, 68 N. E. 129. 
 
 20 Dillingham v. Hawk, 60 Fed. 494, 9 C. C. A. 101, 23 L. R. A, 
 517. See, also, Dillingham v. Anthony, 73 Tex. 47, 15 Am. St. Rep.
 
 § 174 EQUITABLE EEMEDIES. 342 
 
 diction of the parties and the subject matter, its judg- 
 ment against the federal receiver is as final and con- 
 clusive as it is against any other suitor. It is said that 
 the right to sue the receiver would be of little utility 
 if its judgment could be annulled or modified at the dis- 
 cretion of the federal court.^' Since a federal receiver 
 may now be sued in a state court without leave of the 
 appointing court, a receiver cannot have such case re- 
 moved to the federal court on the ground that it is an- 
 cillary to the original suit, unless he shows such ad- 
 ditional cause as makes the removal a necessary means 
 
 753, 11 S. W. 139, 3 L. E. A. 634. In Missouri Pac. Ey. Co. v. Tex. 
 Pac. Ey. Co., 41 Fed. 311, the court states: "The better opinion of 
 the effect of said section is that it merely dispenses with leave of the 
 court appointing the receiver, as a prerequisite to instituting a suit 
 against him in another court, and that a suit brought thereunder has 
 the same status, and a judgment rendered therein has the same effect, 
 as if permission to sue had been regularly granted by the court ap- 
 pointing the receiver. However this may be, it is clear that when 
 a judgment is so obtained, and is brought to the court of original 
 jurisdiction to be ranked as a lien upon the trust funds, such judg- 
 ment is subject to the general equity jurisdiction, and the duty of 
 determining the rightfulness' of the judgment, including whether the 
 amount is just, is still imposed upon this court, as it would be if it 
 had ordered an issue tried at law; for this court must still, in the 
 language of the statute, exercise a 'general equity jurisdiction, s . 
 far as the same shall be necessary to the ends of justice.' " The 
 court had held that the district court rendering the judgment did not 
 have jurisdiction of the suit against the receiver under the act of 
 1887, and the value of the decision would seem to be weakened by 
 that fact. See, also, Eeinhart v. Sutton, 58 Kan. 726, 51 Pac. 221; 
 Burke v. Ellis, 105 Tenn. 702, 58 S, W. 855. See particularly, Irwin 
 ▼. McKechnie, 58 Minn. 145, 49 Am. St. Eep. 495, 59 N. W. 987, 26 
 L. E. A. 218; Sogers v. Chippewa Circuit Judge (Mich.), 97 N. W. 
 154 (no injunction against enforcing higher telephone rates than city 
 ordinance authorizes). 
 
 27 Central Trust Co. v. St. Louis A. & T. E. Co., 41 Fed. 551; and 
 to the same effect, see the cases in note 26. The statute does not re- 
 quire the discontinuance of an action against a federal receiver after 
 his discharge on the ground that the decree of the federal court pro- 
 vided a method for establishing claims against the funds in the hands 
 of the receiver: Baer t. McCullough, 176 N. Y. 97, 68 N. E. 129,
 
 343 ACTIONS AGAINST THE RECEIVER. 8 175 
 
 of obtaining justice.^* But the opposite has been held, 
 and it is stated that an action for damages, growing 
 out of the transactions of the receiver or his employees 
 is ancillary to the suit in which the receiver was ap- 
 pointed, and is within the jurisdiction of that court, 
 regardless of the citizenship of the parties, the nature 
 of the controversy, or the amount involved.^^ 
 
 When a receiver is sued without leave of the appoint- 
 ing court, the complaint should contain an allegation 
 that he is a federal receiver, as only such are liable to 
 be sued without leave, and it will not be presumed that 
 he has been appointed by a United States court ^'^ 
 
 § 175. Leave of Court not Necessary When Receiver is a 
 Trespasser. — "The principle is well settled that the court 
 will not protect a receiver for any acts committed by 
 him outside of the performance of the proper and le- 
 gitimate duties of his receivership."^^ Therefore, it is 
 
 28 Gableman v. Peoria, I>. & E. R. R. Co., 179 U. S. 335, 21 Sup. 
 Ct. 171, 45 L. ed. 220, aud cases cited; Eay v. Peirce, 81 Fed. 881; 
 Pitkin V. Cowen, 91 Fed. 599; Gilmore v, Herrick, 93 Fed. 525, stat- 
 ing: "It is said, however, that a suit against a receiver is ancillary 
 to the suit in which the receiver is appointed, and therefore that, if 
 it is brought in a state court, it may be removed to the federal court 
 in which the principal suit is pending. The power of one court to 
 stop proceedings in a suit lawfully begun and pending in another, 
 and to take such suits within its own jurisdiction for further hearing 
 and final definition, is the exercise of an unusual and high preroga- 
 tive, and must be based on clear statutory authority. Such a power 
 is not to be presumed or implied. There is no language in any re- 
 moval statute which justifies removal of a cause from a state court 
 to a federal court on the ground that it is ancillary to a suit in a 
 federal court. ' ' 
 
 29 Carpenter v. Northern Pac. R. R. Co., 75 Fed. 850, followed in 
 Sullivan v. Barnard, 81 Fed. 886. Both of these cases are expressly 
 departed from in Gilmore v. Herrick, quoted supra, note 28. 
 
 30 Peirce v. Chism, 23 Ind. App. 505, 77 Am. St. Rep. 441, 55 N. E. 
 795; approved in Peirce v. Jones, 24 Ind. App. 286, 56 N. E. 683. 
 
 31 In re Young, 7 Fed. 855 (refusing to enjoin an action for tres- 
 pass, brought without leave of court). In Gutsch v. Mcllhargey, 69
 
 § 176 EQUITABLE REMEDIES'. 344 
 
 said, in snslainiug a suit in replevin for a locomotive, 
 to which the insolvent corporation had no right: "The 
 decree of a court of chancery appointing a receiver en- 
 titles him to its protection only in the possession of 
 property which he is authorized or directed by the de- 
 cree to take possession of. When he assumes to take 
 or hold possession of property not embraced in the de- 
 cree appointing him, and to which the debtor never 
 had any title, he is not acting as the officer or repre- 
 sentative of the court of chancery, but is a mere tres- 
 passer, and the rightful owner of the property may sue 
 him in any appropriate form of action for damages or 
 to recover possession of the property illegally taken or 
 detained."^^ 
 
 § 176. Leave to Sue Receiver, When Granted. — The rule 
 is well settled that in ordinary cases the granting or 
 withholding of leave to sue a receiver is within the dis- 
 cretion of the court to which the motion is ad- 
 dressed.^^ The court may, therefore, determine 
 
 Mich. 377, 37 N, W. 303, Campbell, J., says: "A receiver may fre- 
 quently, under color of office, get possession of property which doea 
 not belong to him, and his official character ought not to be a defense 
 to hia tortious action, or deprive parties of their rights." An action 
 of replevin for a small frame house, of which the receiver had im- 
 properly obtained possession, was accordingly sustained, though the 
 plaintiff had not obtained leave to sue. 
 
 32 Hills V. Parker, 111 Mass. 508, 15 Am. Eep. 63. See, also, for an 
 instructive case, Curran v. Craig, 22 Fed. 101; and to the same effect, 
 Kenney v. Eanney, 96 Mich. 617, 55 N. W. 982. See Fallon v. Eg- 
 bert's Woolen Mills Co., 31 Misc. Eep. 523, 64 N. Y. Supp. 466, 56 
 App. Div. 585, 67 N. Y. Supp. 347, as to when the right to sue a re- 
 ceiver individually may be lost by proceeding against him officially. 
 
 That an order directing the receiver to take possession of property 
 not involved in the litigation is void, and that in acting under such 
 order he becomes liable as a trespasser, see Bowman v. Hazen (Kan.), 
 77 Pac. 589. 
 
 8S Walker v. Green, 60 Kan. 20, 55 Pac. 281 (the leave may be given 
 generally, to "all parties"); In re Mackwirth, 15 App. Div. 65, 44
 
 345 ACTIONS AGAINST THE RECEIVER. { 176 
 
 wlu'ther it is more desirable to allow the receiver to 
 be sued in some appropriate form of action, or to pro- 
 tect him from the suit entirely.^^ It is said that leave 
 should not be granted to sue a receiver unless the ap- 
 plicant's complaint makes out a prima facie case; that 
 "the court should not allow its receiver to be harassed 
 bj a suit where, according to his own showing, the 
 plaintiff has no cause of action."^'* But, on the other 
 hand, it is settled that the consent of the court is not 
 to be arbitrarily refused when the plaintiff presents a 
 meritorious case; it is said: "Parties having claims 
 upon the property have a right to prosecute them by 
 suit, which is said to be liable to be abridged, if leave 
 of court must be had for that purpose. The leave is, 
 however, necessary only for the orderly administration 
 of justice, and is not to be denied arbitrarily, but only 
 for legal unfitness for the purposes when and where 
 sought. The right remains, and leave is to be granted 
 according to the right and the proper adaptation of the 
 proceedings. "^° A federal court, after referring to the 
 
 N. Y. Supp. 80 (refusing leave to a creditor where the receiver was 
 not shown to be lax in his duties in caring for the estate) ; Shrady 
 V. Van Kirk, 51 App. Div. 504, 64 N.Y. Supp. 731 (cannot be given 
 where the receiver is only pendente lite); Marshall v. Friend, 68 N. Y. 
 Supp. 502, 33 Misc. Rep. 443; Pringle v. V^oodworth, 90 N. Y. 502; 
 Ludington v. Thompson, 153 N. Y. 499, 47 N. E. 903; Reed v. Axtell, 
 84 Va. 231, 4 S. E. 587. 
 
 34 In re Herbst, 63 Hun, 247, 17 N. Y. Supp. 760 (Van Brunt, P. J., 
 dissented on the ground that the action was not to take from the 
 receiver any property of which he had possession) ; Taylor v. Hill, 
 115 Cal. 143, 44 Pac. 336, 46 Pac. 922; Mechanics' Nat. Bank v. 
 Landauer, 68 Wis. 44, 31 N. W. 160 (and the exercise of the discretion 
 will not be disturbed on appeal unless manifestly abused). 
 
 86 Jordan v. Wells, 3 Woods, 527, Fed. Cas. No. 7525. 
 
 86 American I>oan & Trust Co. v. Central Vt. E. Co., 84 Fed. 917. 
 To the same effect are the English cases of Eandfield v. Randfield 3 
 De Gex, F. & J. 766; Lane v. Capey, [1891] 3 Ch. 411, 414. See, 
 also, Allan v. Manitoba Ry. Co., 10 Manitoba, 106; Cobb v. Sweet,
 
 I 177 EQUITABLE EEMEDIES. 346 
 
 general rule, has stated it as follows: "There are other 
 cases, however, where the right of a third party to in- 
 tervene in a pending case is so imx>erative, resting, as it 
 does, on grounds of necessity, and the inability of the 
 party to obtain relief by other means, that the right 
 cannot be said to be dependent upon judicial discretion. 
 For example, a court cannot lawfully refuse to permit 
 an intervening petition to be filed when the petitioner 
 shows a title to, or lien upon, property in the custody 
 of a receiver, and a present right to its possession, which 
 is superior to any right or title that is or may be as- 
 serted by the parties to the suit in which the interven- 
 tion is filed, and at whose instance the receiver was ap- 
 pointed."^^ 
 
 § 177. Practice, Whether by Petition or Independent Ac- 
 tion. — While it is, under some circumstances, proper to 
 direct the prosecution of an action at law against the 
 receiver to determine the amount of compensation or 
 damages to be paid, the better and more commonly rec- 
 ognized practice is to apply for relief to the court in 
 which the receiver is acting.^* The proper course to 
 
 46 App. Div. 375, 61 N. Y. Supp. 545; Citizens' Sav. Bank v. Per- 
 son, 98 Mich. 173, 57 N, W. 121. 
 
 37 Minot V. Mastin, 95 Fed. 734, 37 C. C. A. 234 (but the court 
 approved the general rule indicated by the text in the followin^^ 
 words: "In cases of the latter sort, it is usually held to be discre- 
 tionary with the court or chancellor to whom an application to inter- 
 vene is addressed, to allow or reject the intervention, and leave to 
 intervene should be obtained"). 
 
 38 Pacific Ey. Co. v. Wade, 91 Cal. 449, 456, 25 Am. St. Rep. 201, 
 27 Pac. 768, 13 L. E. A. 754 (proceedings to determine compensation 
 for use of tracks of street railway in hands of receiver) ; Meredith 
 Village Sav. Bank v. Simpson, 22 Kan. 414, 432; Central Trust Co. v. 
 Wabash, St. Louis & P. R. Co., 23 Fed. 858; Citizens' Sav. Bank v. Ing- 
 ham, Circuit Judge, 98 Mich. 173, 57 N. W. 121; Buflfnm v. Hale, 71 
 Minn. 190, 73 N. W. 856; Goodnough v. Gatch, 37 Or. 5, 60 Pac. 383; 
 Crutchfleld v. Hunter (N. C), 50 S. E. 557.
 
 347 ACTIONS AGAINST THE EECEIVEE. § ITi 
 
 be pursued is, for the court to proceed to investigate 
 the matter in a summary way, and if it appears that 
 the case is free from difficulty, and the liability of the 
 receiver plain, or that the dispute involves no question 
 which must necessarily be settled at law, the court 
 should proceed to decide the matter; since the court, in 
 giving leave to sue in such a case, would be authorizing 
 an inexcusable waste of the moneys of the trust.^^ And 
 where the party who has a legal cause of action against 
 a receiver comes voluntarily into court and submits 
 himself to the jurisdiction of the court, offering to do 
 what the court deems equitable, the court is compe- 
 tent to deal with his complaint, notwithstanding the 
 receiver's objection.^*^ It has been held that if the pro- 
 ceeding is to assert an equitable right in relation to the 
 property in the receiver's hands, it must be by petition 
 in the cause in which the receiver was appointed, and 
 not by independent suit.*^ A court of law is, however, 
 the more appropriate forum to determine a question of 
 damages for personal injuries.^^ 
 
 Since the court of the appointment has power to fix 
 the forum in which suit shall be brought against its 
 receiver, it has also the power to revoke the permission 
 to sue when it is sought to be abused. Thus, where per- 
 mission was granted to sue the receiver in the court of 
 the appointment, and in no other, and the plaintiff in 
 such action filed his petition and bond for a removal of 
 
 39 Lehigh Coal & Navigation Co. v. Central K, E. Co., 38 N. J. Eq. 
 175, 179. 
 
 40 Potter V. Spa Spring Brick Co., 47 N. J. Eq. 442, 20 Atl. 852. 
 •*i Porter v. Kingman, 126 Mass. 141 (to cancel mortgage) ; Meeker 
 
 V. Sprague, 5 Wash. 242, 31 Pac. 628 (refusal to allow independent 
 action to foreclose mortgage proper, and not an abuse of discretion) j 
 but see Talladega Mercantile Co. v. Jenifer Iron Co., 102 Ala. 259, 
 14 South. 743; Jones v. Stewart (Tenn. Ch.), 61 S. W. 105. 
 
 42 Palys V. Jewett, 32 N. J. Eq. 302; and see Melendj v. Barbour, 
 78 Va. 544.
 
 S 178 EQUITABLE REMEDIES. 348 
 
 the cause to a federal court, it was not error for the 
 court, of its own motion, to revoke the order granting 
 permission to sue the receiver, and to dismiss the action 
 pending against him.^' 
 
 § 178. Receiver's Right to Appeal. — It is held that 
 where a judgment is recovered against a receiver, on 
 account of his management of the property, he may 
 properly appeal from the decision; that the court's di- 
 rections to him to defend do not extend only to the court 
 that hears the trial. ^^ But he may not appeal from 
 an order determining the rights of parties, where a 
 payment under the order would be a protection to 
 him,*^ nor can he appeal from an order relative to his 
 rights and duties, without previous authorization from 
 the court^^ Mr. Justice Brew^er, in a recent case,'*'^ 
 ably summarizes the rules as follows: "First. A re- 
 ceiver may defend, both in the court appointing him 
 and by appeal, the estate in his possession against all 
 claims which are antagonistic to the rights of both par- 
 ties to the suit*^ .... Second. He may likewise de- 
 fend the estate against all claims which are antagon- 
 istic to the rights of either party to the suit, subject to 
 the limitation that he may not, in such defense, ques- 
 
 43 Meredith Village Sav. Bank v. Simpson, 22 Kan, 414, 433. 
 
 44 Thorn v. Pittard, 62 Fed. 232, 10 C. C. A. 352. 
 
 45 Dorsey v. Sibert, 93 Ala. 312, 9 South. 288; First Nat. Bank v. 
 Bunting & Co., 7 Idaho, 27, 59 Pac. 929, 1106. 
 
 46 McKinnon v. Wolfenden, 78 Wis. 237, 47 N. W. 436 ("a re- 
 ceiver is the mere servant or agent of the court to do its bidding, 
 and he cannot be heard to question by appeal the regularity or pro- 
 priety of the orders of the court in the action, unless the court first 
 authorizes him to do so"). 
 
 47 Bosworth V. Terminal R. Assn., 174 U. S. 182, 19 Sup. Ct. 625, 
 48 L. ed. 941, modifying 80 Fed. 969, 26 C. C. A. 279, 53 U. S. App. 
 302. See, also, Kirkpatrick v. Eastern Milling & Export Co., IS.j 
 Fed. 151. 
 
 48 For instance, he may thus contest a claim for taxes.
 
 349 ACTIONS AGAINST THE RECEIVER. S 179 
 
 tion any order or decree of the court distributing bur- 
 dens or apportioning rights between the parties to the 
 suit, or any order or decree resting upon the discretion 
 
 of the court appointing him Third. Neither can 
 
 he question any subsequent order or decree of the court 
 distributing the estate in his hands between the parties 
 to the suit. It is nothing to him whether all of the 
 property is given to the mortgagee or all returned to 
 the mortgagor. He is to stand indifferent between the 
 parties, and may not be heard, either in the court which 
 appointed him or in the appellate court, as to the right- 
 fulness of any order which is a mere order of distribu- 
 tion between the parties.** .... Fourth. He may ap- 
 peal from an order or decree which affects his personal 
 rights, provided it is not an order resting in the discre- 
 tion of the court."*" .... Fifth, His right to appeal 
 from an allowance of a claim against the estate does not 
 necessarily fail when the receivership is terminated 
 to the extent of surrendering the property in the pos- 
 session of the receiver. It is a common practice in 
 courts of equity, anxious as they are to be relieved of 
 the care of property, to turn it over to the parties en- 
 titled thereto, even before the final settlement of all 
 claims against it, and at the same time to leave to the 
 receiver the further defense of such claims, the party 
 receiving the property giving security to abide by any 
 decree which may finally be entered against the estate." 
 
 § 179. Judgfmeiit Against Receiver, How Enforced; as 
 Ag^nst Successor in Office; in Case of His Discharge. — As a 
 general rule, actions against the receiver are in law 
 actions against the receivership; his liabilities are oflS- 
 
 4» Thus, in a foreclosure suit, a receiver may defend the property 
 from an adverse claim, and may appeal. 
 
 50 He may not appeal from an order discharging or removing him. 
 He may appeal from an order disallowing him commissions or fees.
 
 « i79 EQUITABLE REMEDIES. 350 
 
 cial, not personal ;^^ and judgment against him should 
 be so entered as to be enforced only out of the funds 
 properly chargeable to him in the capacity of receiver,^" 
 leaving the manner of its enforcement to be determined 
 by the court having jurisdiction of the receivership.'*' 
 And an action may be brought against a receiver on a 
 liability incurred by his predecessor in the receivership, 
 since the receivership is continuous and uninterrupted 
 until the court relinquishes its hold upon the property, 
 though its personnel may be subject to repeated 
 changes ; the position of the receiver in this respect be- 
 ing somewhat analogous to that of a corporation sole.*^* 
 Leave to bring suit against a receiver, therefore, ex- 
 tends to permit suit against his successor in offlce.^^ 
 
 It also follows that no judgment can be rendered 
 against a receiver in his official capacity after he is 
 discharged from the receivership and the property is 
 withdrawn from his custody.^^ The supreme court of 
 
 51 McNulta V. Lockridge, 141 U. S. 327, 12 Sup. Ct. 11; affirming 
 137 m. 210, 31 Am. St. Rep. 362, 27 N. E. 452; Bonner v. Mayfield, 
 82 Tex. 234, 18 S. W. 305. 
 
 52 McXulta V. Ensch, 134 111. 46, 24 N. E. 631. 
 
 53 Brown v. Brown, 71 Tex. 355, 9 S. W. 261. See, also, Painter 
 V. Painter, 138 Cal. 231, 94 Am. St. Rep. 47, 71 Pae. 90 (judgment 
 cannot be enforced on execution; practice is to apply to the court 
 for an order). 
 
 54 McNulta V. Lockridge, supra; State v. Port Royal & A. R. Co., 
 84 Fed. 67. 
 
 55 Fordyce v. Dixon, 70 Tex. 694, 8 S. W. 504. 
 
 56 Farmers' Loan & Trust Co. v. Central R. R. Co. of Iowa, 7 Fed 
 537, 2 McCrary, 181; Lehman v. McQuown, 31 Fed. 138; Western N 
 Y. & P. R. Co. V. Penn Refining Co. (C. C. A.), 137 Fed. 343; Archam 
 beau V, Piatt, 173 Mass. 249, 53 N. E. 816; Ansley v. McLoud (Tnd 
 Ter.), 82 S. W. 908; Brawn v. McBean, 54 App. Div. 635, 66 N. Y. Siipp 
 785; New York & W. W. Tel. Co. v. Jewctt. 115 N. Y. 166, 21 N 
 E. 1036; Texas & Pac. R. R. Co. v. Johnston, 76 Tex. 421, 18 Am. St 
 Rep. 60, 13 S. W. 463; Boggs v. Brown, 82 Tex. 41, 17 S. W. 830; 
 Fordyce v. Du Bose, 87 Tex. 78, 26 S. W. 1050 (see for the effect of a 
 statute allowing judgment against receiver after his discharge, when
 
 351 ACTIONS AGAINST THE BECEIVEE. i 179 
 
 Mississippi says: "The final discharge of the receiver 
 put an end to his official existence, and withdrew from 
 his care and management the road and property of the 
 company. The discharge having terminated the repre- 
 sentative character of the receiver, we are at a loss to 
 understand how any judgment could be rendered 
 against him officially that would render liable to its 
 satisfaction any property of the company, — property in 
 his hands when the suit was brought, but now finally 
 withdrawn from him by the extinction of his official 
 
 character before his plea was filed It seems 
 
 plain to us that, with the termination of his representa- 
 tive character, and the withdrawal of the road and its 
 property from his custody by the order discharging him, 
 no judgment could be rendered against him properly, 
 as the representative of the company, whereby to make 
 its property chargeable. His official liability ended 
 with his official existence."^^ But the fact that a re- 
 suit is pending at the time); Texas & Pac. R. R. Co. v. Watson, 13 
 Tex. Civ. App. 555, 36 S. W. 290 (a judgment rendered after his dis- 
 charge binds neither the receiver nor the company represented). 
 But the fact that the property has been sold, and has entirely passed 
 from his control is no bar to an action against him if he has not been 
 finally discharged: Erb v. Popritz, 59 Kan. 264, 68 Am. St. Rep. 362, 
 52 Pac. 871. See, also, Houston City St. Ry. Co. v. Storrie (Tex. Civ. 
 App.), 44 S. W. 693; Houston & F. C. Ry. Co. v. Stoycharski (Tex. 
 Civ. App.), 35 S. W. 851, 37 S. W. 415; Howe v. Harper, 127 N. C. 356, 
 37 S. E. 505. 
 
 57 Bond V. State, 68 Miss. 648, 9 South. 353. See Davis v. Duncan, 
 19 Fed. 477, stating that the court is aware of no rule by which it 
 can "in any way alter, change, modify, suspend or expand the decree 
 discharging the receiver, and again obtain jurisdiction of the property 
 and funds which it had by its decree ordered the receiver to turn 
 over to ITie corporation and which it is admitted was done. ' ' But 
 that an action against the receiver is not necessarily terminated by 
 the discharge of the receiver and sale of the property under decree 
 of the appointing court, under a section of the New York code al- 
 lowing a continuance of the action by or against the original party 
 thereto, in case of a transfer of interest or devolution of liability, see 
 Baer v. McCullough, 176 N. Y. 97, 68 N. E. 129.
 
 i 179 EQUITABLE REMEDIES. 352 
 
 ceiver has been discharged is no bar to an action against 
 him, where he has sold the property of another with no- 
 tice of his claim, and no notice of the motion to dis- 
 charge him was served on the owner f^ or where he has 
 collected money under a void appointment."^® And 
 where judgment has been recovered against him in the 
 lower court, and he is discharged pending an appeal, 
 judgment may properly be entered against him if the 
 judgment of the lower court is affirmed.^*^ 
 
 58 Muller V. Loeb, 64 Barb. 454. 
 
 59 Johnston v. Powers, 21 Mo. 292, 32 N. W. 62. But if the re- 
 ceiver has in good faith applied the money in improving the property, 
 and the order was valid on its face, he will be protected to that ex- 
 tent: Edee v. Strunk, 35 Neb. 307, 53 N. W. 70. 
 
 eo McCarley v. McGhee, 108 Fed. 494; Woodruff v. Jewett, 115 N, 
 T. 267, 22 N. E. 156.
 
 35S SUITS BY THE EECEIVEB. § ISO 
 
 CHAPTER VI. 
 
 SUITS BY THE RECEIVER. 
 
 ANALYSIS. 
 
 S 180. Suits by receivers; leave of court necessary, 
 
 § 181. Suits by receiver, in whose name. 
 
 § 182. Appointment cannot be questioned collaterally. 
 
 § 183. Pleading in suit by receiver; must allege his authority. 
 
 § 184. Same; appointment and authority, how alleged. 
 
 § 185. Proof by receiver of his appointment and powers. 
 
 § 186. Eeceiver is subject to the same defenses as the on« 
 whom he represents. 
 §§ 187-1S9. Set-off against the receiver. 
 
 § 187. In general. 
 
 § 188. Set-off by bank depositor. 
 
 § 189. Set-off against corporation receiver, in suit against 
 stockholders. 
 
 I 190. Statutory receiver of insolvent corporation represents 
 its creditors. 
 
 S 191. Receiver in supplementary proceedings, how far a repre- 
 sentative of creditors. 
 
 § 180. Suits by Receivers; Leave of Court Necessary. — 
 In the absence of statute, it is generally held that a re- 
 ceiver can "neither bring nor defend actions except by 
 permission and the direct authority of the court by 
 which he was appointed."^ It is said: "That rule is a 
 
 1 Foster v. Townshend, 68 N. Y. 206. See to the same effect, 
 Phoenix Ins. Co. v. Schultz, 80 Fed. 337, 25 C. C. A. 453 (see for what 
 constitutes leave to sue); First Nat. Bank v. C. B. & Co., 7 Idaho, 27, 
 59 Pac. 929, 1106 (leave to appeal should be obtained); Hcrron v. 
 Vance, 17 Ind. 595; Coffin v. Eansdell, 110 Ind. 417, 11 N. E. 20; 
 Wayne Pike Co. v. State, 134 Ind. 672, 34 N. E. 440; Hatfield v. 
 Cummings, 142 Ind. 350, 39 N. E. 859; Runner v. Deviggins, 117 Ind. 
 238, 36 L. K. A. 645, 46 N. E. 580; Vigo Real Estate Co. v. Reese, 21 
 Ind, App. 20, 51 N. E. 350; Peirce v. Chism, 23 Ind. App. 505, 77 Am, 
 Equitable Remedies, Vol. 1 — 23
 
 i _3v> EQUITABLE KEMEDIES. 354 
 
 necessary result of the nature of the functions of the 
 receiver. He is a mere custodian of the property for 
 the court as one of its officers. His acts are the acts of 
 the court when duly sanctioned, and Avhen not so sanc- 
 tioned they have no greater effect than the acts of other 
 unauthorized officers or agents."^ The supreme court 
 of Georgia has stated : "The rule is perhaps an arbitrary 
 one, but it is, nevertheless, well settled, that a receiver 
 has no right to sue without express authority from the 
 chancellor; his general authority to collect and keep 
 the assets is not sufficient to justify him in bringing 
 an action. A receiver is at least only an officer of the 
 court, and the foundation of the rule probably is, that 
 it is always for the court to determine whether it shall 
 be dragged into litigation. At law, the party having 
 the legal right to sue is the proper party, and if one 
 comes suing for the property of another, he must show, 
 as part of his right to recover, the authority he has to 
 come into a court of law asserting another's right."^ 
 
 St. Rep. 441, 55 N. E. 795; Troy Sav. Bank v. Morrison, 27 App. Div. 
 423, 50 N. Y. Supp. 225; Battle v. Davis, 66 N. C. 262; Davis's Admrs. 
 V. Snead, 33 Gratt. 709; Eeynolds's Exr. v. Pettyjohn, 79 Va. 327; Mc- 
 Allister V. Harmon, 97 Va. 543, 34 S. E. 474 (leave of court to sue will 
 pot be implied from general order to collect). See the following cases to 
 the effect that the receiver should allege that he has obtained leave 
 of court to sue: Wheat v. Bank of California, 119 Cal. 4, 50 Pac. 842, 
 51 Pac. 47; Morgan v. Buski, 61 N. Y. Supp. 929, 30 Misc. Eep. 245; 
 Swing V. White Eiver Lumber Co., 91 Wis. 517, 65 N. W. 174; Rhodes 
 V. Hilligoss, 16 Ind. App. 478, 45 N. E. 666; Gainey v. Gilson, 149 
 Ind. 58, 48 N. E. 633, To the effect that he need not allege that 
 leave of court has been obtained, see Hegewisch v. Silver, 140 N. Y. 
 414, 35 N. E. 658; Hardin v. Sweeney, 14 Wash. 129, 44 Pac. 138; 
 Compton V. Schwabacher Bros. & Co., 15 Wash. 306, 46 Pac. 338; 
 Howard v. Stephenson, 33 W. Va. 116, 10 S. E. 66; Elliott v. Trahern, 
 35 W. Va. 634, 14 S. E. 223; Minn. etc. St. Ry. Co. v. Minn. etc. R. 
 Co., 61 Minn. 502, 63 N. W. 1035. 
 
 2 Fin<:ke v. Funke, 25 Hun, 616; approved in Ogden v. Arnot, 29 
 Hun, 146 
 
 3 Screven v. Clark, 48 Ga. 41.
 
 355 SUITS BY THE EECEIVER. S 150 
 
 In regard to the case of a receiver pendente lite, where 
 leave of court was not obtained, the supreme court of 
 California states : "As a rule, however, the receiver can- 
 not sue to recover property which has not come to his 
 possession, or which, being in the possession of the de- 
 fendant, ought to have been delivered to him. He can- 
 not maintain trover for property of the insolvent con- 
 verted before the adjudication, nor to recover property 
 transferred by the debtor in fraud of creditors."^ There 
 seems to be a lack of harmony in the decisions as to the 
 form in which the consent to sue should be given ; some 
 of the courts have held that the order may allow the 
 receiver to prosecute and defend all actions brought 
 against him in his official capacity,^ while other courts 
 maintain that such general permission is too liberal for 
 judicious management of the property. Such practice 
 is criticised in New York as follows : "It seems to me, 
 however, that that portion of the order which author- 
 izes the receiver to prosecute and defend without the 
 further order of the court all actions brought or about 
 to be brought by or against said co-partners, or any of 
 them, pertaining to said co-partnership business, .... 
 is improper, and its presence in the order was probably 
 overlooked by the justice holding the special term at 
 which the order was made. The rule requiring leave 
 of court to be obtained before the receiver can either 
 sue or be sued is in order to prevent any unnecessary 
 waste of the assets in the receiver's hands in unneces- 
 
 4 Tibbets v. Cohn, 116 Cal. 365, 48 Pac. 372; quoted with approval 
 in Bishop v. McKillican, 124 Cal. 321, 71 Am. St. Rep. 68, 57 Pac. 76, 
 refusing to allow a reeo\cry of personal property of which the re- 
 ceiver had never had possession. 
 
 5 Taylor v. Canady, 155 Ind. 671, 57 N. E. 524, 59 N. E. 20. See, 
 also, Wason v. Frank, 7 Colo. App. 541, 44 Pac. 378; Wyman v. Will- 
 iams. 52 Neb. 833, 73 N. W. 285; Boyd v. Koyal Ins. Co., Ill N. a 
 372, 16 S. E. 389.
 
 { 181 EQUITABLE KEMEDIES. 35ft 
 
 sary litigation, and contemplates at least some inves- 
 tigation by the court of the propriety of the commence- 
 ment of such suits before permission is granted ; and to 
 authorize in advance the commencement of suits with- 
 out any knowledge of what they are for, or of the neces- 
 sity thereof, is a complete nullification of the rule, and 
 exposes the estate to the very thing that the rule was in- 
 tended to guard against, and is improper practice."* 
 In many states, the rule that the receiver should obtain 
 leave of court, prior to defending or bringing an action, 
 has been changed by statute so that he may sue as freely 
 as the one whom he represents, if it is necessary for the 
 protection of the estate.' 
 
 § 181. Suits by Receiver, in Whose Name. — While the 
 decisions are not altogether harmonious on the subject, 
 it seems to be generally held that, in the absence of 
 statute, the receiver should sue in the name of the 
 party having the legal title, and over whose property 
 he has been appointed.® In Indiana it is stated: "It 
 
 6 Witherbee v. Witherbee, 17 App. Div. 181, 45 N. Y. Supp. 297. 
 
 7 See Tibbeta v. Cohn & Co., 116 Cal. 365, 48 Pac. 372 (refusing to 
 extend the code provision to a sheriff acting as receiver pendente lite). 
 In Indiana, a statute providing that "the receiver shall have power, 
 under control of the court, or of the judge thereof in vacation to 
 bring and defend actions," does not authorize a receiver to bring 
 action without leave of court: Khodes v. Hilligoss, 16 Ind. App. 47S, 
 45 N. E. 666. But see Manlove v. Burger, 38 Ind. 211. In North 
 Carolina, the statute giving "power to prosecute and defend" with 
 PC reference to the control of the court, it is held that the receiver 
 may sue without leave having been obtained: Gray v. Lewis, 94 N. 
 C. 392; Weill v. First Nat. Bank, 106 N. C. 1, 11 S. E. 277; Worth v. 
 Wharton, 122 N. C, 376, 29 S. E. 370; Everett v. State, 28 Md. 190; 
 Baker v. Cooper, 57 Me. 388; TJeland v. Hangan, 70 Minn. 349, 73 N. 
 W. 169; Boston & M. C. C. & S. M. Co. v. Montana etc. Co., 24 Mont. 
 142, 60 Pac. 990; Mathis v. Pridham, 1 Tex. Civ. App. 58, 20 S. W. 
 1015. See, also, McBryan v. Universal Elevator Co., 130 Mich. Ill, 
 97 Am. St. Eep. 453, 89 N. W. 683. 
 
 8 Dick V. Struthers, 25 Fed. 103; Harland v. Bankers' & M. TeL
 
 357 SUITS BY THE RECEIVER. S 181 
 
 is undoubtedly a correct general proposition that in the 
 absence of authority derived from the statute, or from 
 the court ordering his appointment, a receiver has no 
 
 power to sue in his own name The reason is that 
 
 the legal title to cJioses in action, or other property 
 which he is authorized to reduce to possession, is or- 
 dinarily not transferred to the receiver, but remains in 
 the owner, in whose name suits must be brought, un- 
 less the statute or the order of the court authorizes 
 the receiver to proceed in his own name."^ A leading 
 decision in North Carolina says, "the action must be 
 brought in the name of the legal owner, and he will be 
 compelled to allow the use of his name upon being 
 properly indemnified out of the estate and effects, un- 
 der the control of the court."^** 
 
 While recognizing the general rule, there are cases 
 holding that in certain instances the receiver may main- 
 tain an action in his own name, without the aid of a 
 statute. Thus it is said: "But where the goods have 
 actually come into his possession, it can hardly be con- 
 tended that he could not maintain this action against 
 one who wrongfully invaded such possession and con- 
 verted the goods committed to his cara Were such 
 
 Co., 32 Fed. 305; Garver v, Kent, 70 Ind. 428; Moriarty v. Kent, 71 
 [nd. 601; Wilson v. Welsh, 157 Mass. 77, 31 N. E. 712; Ft. Payne Coal 
 & Iron Co V. Webster, 163 Mass. 134, 39 N, E. 786; East Tenn. Land 
 Co, V, Leeson (Mass.), 57 N. E. 656; Freeman v. Winchester, 10 
 Smedes & M. (18 Miss.) 577; Newell v. Fisher, 24 Miss. 392 (the 
 statement of the court would lead to the conclusion that the receiver 
 could sue in his own name if he had the legal title) ; State v. Gambs, 
 68 Mo. 289; Yeager v. Wallace, 44 Pa. St. 294; Murtey v. Allen, 71 
 Vt. 377, 76 Am. St. Rep. 779, 45 Atl. 752 (inferring that he conld 
 eue at law in his own name if he had the legal title); King v. Cutts, 
 24 Wis. 627. 
 
 9 Pouder v. Catterson, 127 Ind. 434, 26 N. E. 66. 
 
 10 Battle V. Davis, 66 N. C. 252 (the rule has since been changed 
 by code).
 
 I 181 EQUITABLE REMEDIES. 358 
 
 not the case he would not rise to the dignity and power 
 of the most ordinary bailee. He would be the merest 
 automaton that ever sprang from a legal workshop. 
 In the case in hand, the goods were in the possession 
 of the receiver and were sold by him by virtue of the 
 power conferred upon him by the court for that pur- 
 pose. The contract of sale was with him; his receipt 
 for the money to the purchaser would have been good 
 to discharge him from the price of the goods; and for 
 them or their price he is responsible. We are of opin- 
 ion, therefore, that the receiver might maintain this 
 suit in his own name."^^ And where a receiver sought 
 the possession of land to which he as receiver was en- 
 titled, the court said: "The object of the suit is to ob- 
 tain possession of the real estate in question for the 
 receiver and not for the bank. A suit in the name of 
 the bank would not accomplish that purpose; for the 
 execution, or writ of possession, if one was obtained, 
 would require the officer executing it to put the bank, 
 and not the receivers, into possession. As it is the re- 
 ceivers that are seeking the possession, we think the 
 suit is properly brought in their names. It is the 
 direct road to the end in view."^^ It has been said 
 that where an assignee can sue in his own name, a re- 
 ceiver may also where he has analogous rights. The 
 court said, "In the present case the receiver is called 
 by the court in Washington a 'quasi assignee for cred- 
 itors.' He is charged with the administration of a trust 
 
 11 Singerly v. Fox, 75 Pa. St. 112. See, also, Wason v. Frank, 7 
 Colo. App. 541, 44 Pac. 378. The statement by Henry, J., in State v. 
 Gambs, 68 Mo. 289, is to the same effect, 
 
 12 Baker v. Cooper, 57 Me. 388; Mathis v. Pridham, 1 Tex. Civ. 
 App. 58, 20 S. W. 1015, states that though not authorized by statute 
 or court order to sue in his own name, he may do so when ordered 
 by statute to sue generally. See, also, Evans v. Pease, 21 E. I. 187, 42 
 Atl. 506.
 
 359 SUITS BY THE RECEIVEB. S 181 
 
 fund which does not take from nor come into actual 
 existence until after his appointment, and he is the 
 only person who can collect it. By virtue of his official 
 relation to the corporation and its creditors, he is the 
 owner of the legal title to this fund, as a trustee for 
 the creditors. A suit could not have been brought in 
 the name of the corporation, and he is the only person 
 who can now, or who ever could, legally demand and 
 collect the money. We are of opinion that the action 
 is rightly brought in his name."^^ 
 
 In those states where the code system prevails and it 
 is provided that suits shall be brought in the name of 
 the real party in interest, a receiver is allowed to sue 
 in his own name on the ground that he is the real party 
 in interest. ^^ The supreme court of Minnesota says: 
 "The receiver, as an officer of the court which has taken 
 control of the property, is, for the time being, and for 
 the purpose of the administration of the assets, the 
 real party in interest in the litigation. There is no 
 reason, therefore, why the suit should not be instituted 
 
 in his own name Whatever technical reasons 
 
 may have existed for refusing to permit common-law 
 receivers to sue in their own names, they exist no longer, 
 
 13 Howarth v. Lombard, 175 Mass. 570, 56 N. E. 888, 49 L. R. A. 
 301; Buswell v. Supreme Sitting etc. of Iron Hall, 161 Mass. 224, 36 
 N. E. 1065, 23 L. R. A. 846; Ewing v. King, 169 Mass. 97, 47 N. E. 
 597. See Wilkinson v. Rutherford, 49 N. J. L, 244, 8 Atl. 507, to the 
 same effect where the statute, authorizing suit, did not provide that 
 it should be in the receiver's name. In Frank v. Morrison, 58 MJ. 
 423, the court states the Maryland practice to be to allow suits in the 
 name of the receiver, regardless of statute. 
 
 14 Wason V. Frank, 7 Colo. App. 541, 44 Pac. 378 ("but the cases 
 in which it has been held that a receiver could not maintain an ac- 
 tion in his own name were, for the most part, cases where the legal 
 
 right existed in his principal before his appointment In his 
 
 representative capacity he was the real party in interest; the suit 
 could be brought and maintained only in his name").
 
 { 182 EQUITABLE REMEDIES. 360 
 
 under our code."^' In many of the states, the code or 
 statute expressly provides that the suit may be in the 
 name of the receiver, or gives such general authority to 
 sue that the courts construe it as giving such power.^® 
 
 § 182. Appointment cannot be Questioned Collaterally. — . 
 The rule is well established that the regularity of the 
 receiver's appointment cannot be attacked collaterally 
 in suits brought by him as receiver." In the case of 
 
 15 Henning v. Eaymond, 35 Minn. 303, 29 N. W. 132. In Davis t. 
 Ladoga Creamery Co., 128 Ind. 222, 27 N. E. 494, it is said the suit 
 cannot be in the name of the corporation, as long as a receiver haa 
 charge. 
 
 16 Cockrill V. Abelea, 86 Fed. 505, 30 C. C. A. 223. 
 See statutes collected, ante, note to § 73. 
 
 California.— California v. Gray (Cal.), 40 Pac. 959; Tibbets v. Cohn 
 & Co., 116 Cal. 365, 48 Pac. 372 (but the code provision was not ex- 
 tended to a receiver pendente lite). 
 
 Illinois. — Chicago Fire Proofing Co. v. Park Nat. Bank, 145 111. 
 481, 32 N. E. 534. 
 
 Indiana. — Manlove v. Burgess, 33 Ind. 211; Hatfield v. Cummings, 
 152 Ind. 2S0, 50 N. E. 231; Taylor v. Canaday, 155 Ind. 671, 57 N. E. 
 524, 59 N. E. 20. 
 
 Maine. — Hobart v. Bennett, 77 Me. 401. 
 
 Minnesota. — Weland v. Hangan, 70 Minn. 349, 73 N. W. 169. 
 
 Missouri.— Gill v. Balis, 72 Mo. 424; Alexander v. Eelfe, 74 Mo. 516. 
 
 Montana. — Boston & M. C. C. & S. M. Co. v. Montana etc. Co., 24 
 Mont. 142, 60 Pac. 990. 
 
 North Carolina.— Gray v. Lewis, 94 N. C. 392; Weill v. First Nat. 
 Bank, 106 N. C. 1, 11 S. E, 277; Davis v. Industrial Mfg. Co., 114 N. 
 C. 321, 19 S. E. 371, 23 L. E. A. 322. 
 
 Texas.- Mathis v. Pridham, 1 Tex. Civ. App. 5S, 20 S. W. 1015. 
 
 17 Fish V. Smith, 73 Conn. 377, 84 Am. St. Rep. 161, 47 Atl. 711 
 (one who was nominally a party to the appointing suit cannot so 
 attack it); Com. Nat. Bank v. Burch, 141 111. 519, 33 Am. St. Eep. 
 331, 31 N. E. 420; St. Paul Trust Co, v. St. Paul Globe Pub. Co., 
 60 Minn. 105, 61 N. W. 813 (the order of court, empowering the 
 receiver to sue, is not subject to such attack); Cox v. Volkert, 86 
 Mo. 505; Block v. Estes, 92 Mo. 318, 4 S. W. 731; Thompson v. Greeley, 
 107 Mo. 577, 17 S. W, 962; Keokuk N. L. P. Co. v. Davidson, 13 Mo. 
 App. 561; Andrew v. Steel City Bank, 57 Neb. 173, 77 N. W. 342;
 
 361 SUITS BY THE KECEIVEB. fi 182 
 
 a corporation receiver, suing to collect unpaid subscrip- 
 tions, the court said: "The plaintiff's appointment aa 
 receiver cannot be attacked collaterally. The regular- 
 ity, propriety and validity of the appointment of such 
 a receiver can only be questioned in a direct proceeding 
 to test that question ;"^^ and "when a judgment debtor 
 appears before a referee and submits to an examina- 
 tion without objection, this will amount to a waiver of 
 any irregularity, and an order for the appointment of 
 a receiver founded on such voluntary appearance and 
 waiver will be valid, and cannot be affected by an 
 objection to the jurisdiction in an action brought by 
 the receiver."^® The supreme court of Ohio states: 
 "It must be borne in mind that he was an acting 
 receiver. There was at least the form of a legal ap- 
 pointment, and that in a case which certainly invoked 
 the discretion and consideration of the court in the 
 determination of the question whether an appoint- 
 ment could or ought to be made. This was juris- 
 diction. The court acted. The appointment was made. 
 The receiver proceeded to the discharge of the duties 
 of the trust. This is not a direct proceeding to test 
 the validity or regularity of the appointment. It is 
 not a proceeding in error to review the order of 
 appointment. It is a collateral inquiry. It is not 
 enough that the court erred in its action. Unless 
 it appear manifestly clear to us that the order of ap- 
 pointment was an absolute nullity by reason of the 
 ■entire absence of jurisdiction in the court that made it, 
 it cannot be assailed in this proceeding."2o 
 
 Capital City Mut. Fire Ins. Co. v. Boggs, 172 Pa. St. 91, 33 Atl. 349; 
 Elderkin v. Peterson, 8 Wash. 674, 36 Pac. 1089. 
 
 18 Basting v. Ankeny, 64 Minn. 133, 66 N. W. 266. 
 
 19 Quoted in Green v. Bookhart, 19 S. C. 466, citing Viburt v. 
 Frost, 3 Abb. Pr. 119; and Bingham v. Disbrow, 37 Barb. 24. 
 
 20 Barbour v. Nat. Exch. Bank, 45 Ohio St. 133, 12 N. E. 5. See, 
 .also, Edee v. Strunk, 35 Neb. 307, 53 N. W. 70.
 
 I 183 EQUITABLE REMEDIES. 362 
 
 If the order appointing the receiver is absolutely 
 void, it is held that he cannot protect himself under it, 
 when sued for money collected as rent from the prem- 
 ises in question.2^ It is necessary, in order to constitute 
 a valid appointment, that the appointing court have 
 jurisdiction of the subject matter.22 
 
 § 183. Pleading in Suit by Receiver; Must Allege His Au- 
 thority. — In a suit by a receiver, acting as he does in a 
 purely representative character, it is necessary for him 
 to allege in the complaint the authority and right that 
 entitles him to maintain the action.^^ Thus it has 
 been frequently held that "a receiver, in order to main- 
 tain an action, must set out facts showing his appoint- 
 ment, and by what jurisdiction appointed; setting out, 
 also, so much erf the proceedings in the cause as will 
 show that his appointment is legal, as the defendant 
 may insist that the facts constituting the appointment 
 as receiver which are set out shall be sufficient to show 
 that an appointment has been made, and that these 
 facts must be so stated, and with such certainty, that 
 they may be traversed."^* And since it is necessary 
 
 21 Johnson v. Powers, 21 Neb. 292, 32 N. W. 62; approved, but 
 distinguished and limited, in Edee v. Strunk, Hupra. 
 
 22 See cases cited supra in note 19, and Attorney-General v. Guard- 
 ian M. L. I. Co., 77 N. Y. 272. 
 
 23 Daggett V. Gray (Cal.), 4 Pac. 959; Wheat v. Bank of Califor- 
 nia. 119 Cal. 4, 50 Pac. 842, 51 Pac. 47; Cooper v. Bowers, 42 Barb. 
 87, 28 How. Pr. 10 (supplementary proceedings) ; Forker v. Brown, 30' 
 N. Y. Supp. 827, 10 Misc. Kep. 161; Swing v. White River Lumber Co.^ 
 91 Wis. 517, 65 N. W. 174; Worth v. Wharton, 122 N. C. 376, 29 S. E. 
 370. 
 
 24 Ehorer v. Middlesboro Town and Land Co., 19 Ky. Law Rep. 
 1788, 44 S. W. 448. See Rossman v. Mitchell, 73 Minn. 198, 75 N. 
 W. 1053, stating: "But it is now settled by the weight of authority,. 
 and on principle, that an allegation in general terms by the plaintiflf,- 
 Buing as receiver, that at such a time, in such an action or proceeding, 
 and by such a court or ofScer, he was duly appointed rfcoiver of the 
 ©state of such a party^ is sufficient, and that anything short of this
 
 363 SUITS BY THE EECEIVER. 8 184 
 
 for the receiver to obtain leave of court to prosecute 
 a suit, it has been held that "a complaint filed by a re- 
 ceiver which fails to allege that leave of the court to 
 institute and prosecute the action has been obtained is 
 fatally defective, "^^^ So, if the receiver has a right to 
 sue in his own name, it is said he should allege the 
 source of that right; the court states: "The authority 
 from the court to the receiver to sue in his own name 
 lies at the very basis of his right to bring the action"; 
 and the complaint "must show by proper averments that 
 leave of court to institute and prosecute the action has 
 been first obtained."^^ 
 
 § 184. Same; Appointment and Authority, How Alleged. 
 The rule laid down by the cases in the preceding para- 
 graph, as to the particularity with which a receiver 
 should allege his authority, has not been universally 
 followed; in many cases it is held that an allegation 
 that the plaintiff was "duly" appointed may be made in 
 general terms. Thus it is said: "It never was neces- 
 sary to set out all the proceedings by which a receiver 
 was appointed, but merely that he show the mode of 
 his appointment."^^ It is said that "the insertion of the 
 word 'duly' in the allegation that the plaintiff was ap- 
 pointed receiver, gave him the right to show on the 
 
 is not sufficient." See, also, "White v. Joy, 13 N. Y. 83; Bangs v. 
 Mcintosh, 23 Barb. 591; Lever v. Bailey, 56 N. J. L. 54, 27 Atl. 799. 
 
 25 Davis V. Ladoga Creamery Co., 128 Ind. 222, 27 N. E. 494, citing 
 Moriarty v. Kent, 71 Ind. 601; approved in Ehodes v. Hilligoss, 16 
 fnd. App. 478, 45 N. E. 666; Hatfield v. Cummings, 142 Ind. 350, 39 
 N. E. 859. See, also, Garver v. Kent, 70 Ind. 428; Morgan v. Bucki^ 
 30 Misc. Kep. 245, 61 N. Y. Supp. 929. 
 
 26 Hatfield v. Cummings, 142 Ind. 350, 39 N. E. 859. See, also, the 
 cases supra, note 25. 
 
 27 Stewart v. Beebee, 28 Barb. 34 ("it was sufficient to aver that 
 he was appointed receiver, the court by which the appointment wa» 
 Biade, and the date of the order").
 
 { 184 EQUITABLE REMEDIES. 364 
 
 trial all the facts conferring jurisdiction."^' And 
 where the petition alleged that the applicant was ap- 
 pointed receiver in certain proceedings named, it was 
 held a sufficient allegation of the petitioner's title. "He 
 was not bound to plead each step in the proceeding to 
 show his appointment was valid. That could be proven 
 on the hearing, if his appointment was put in issue. "^^ 
 It is also maintained that "while it is essential to the 
 complaint that it appear, by clear and express aver- 
 ment, that the receiver was authorized by the court to 
 bring the action, .... it is not necessary that the 
 complaint shall show that the receiver had specific au- 
 thority from the court to bring this particular ac- 
 tion."^" And it is said that where "it does not appear 
 from the record that he did not have such leave, and, 
 when the plaintiff's authority to bring suit is not de- 
 nied or disputed, it will be presumed to exist. The 
 plaintiff, in the absence of any denial of his authority 
 to bring such suit, is not required to allege and prove 
 it."^^ This was held to be true in Washington, though 
 the receiver was suing in his own name.^^ 
 
 28 Eockwell V. Merwin, 45 N. Y, 166, 8 Abb. Pr., N. S., 330. 
 
 29 In re Beecher's Estate, 19 N. Y. Supp. 971, citing the cages, 
 iupra, in notes 27 and 28. See, also, Morgan v. Bucki, 30 Misc. Rep. 
 245, 61 N. Y. Supp. .929; Daggett v. Gray (Cal.), 40 Pac. 959; Wason 
 V. Frank, 7 Colo. App. 541, 44 Pac. 378; Nelson v. Nugent, 62 Minn. 
 203, 64 N. W. 392. 
 
 30 Taylor v. Canaday, 155 Ind. 671, 57 N. E. 524, 59 N. E. 20. The 
 court continued: "It is good if it is shown that in the order of ap- 
 pointment authority to sue was suiEciently broad to authorize the 
 receiver to institute and prosecute such suits as become necessary 
 and proper for the collection of the assets and for obtaining posses- 
 sion of the property over which he has charge." 
 
 31 Howard v. Stephenson, 33 W. Va. 116, 10 S. E. 66; approved 
 in Elliott V. Trahern, 35 W. Va. 634, 14 S. E. 223. See, also, Boyd 
 V. Royal Ins. Co., Ill N. C. 372, 16 S. E. 387; Worth v. Wharton, 122 
 N. C. 376, 29 S. E. 370. 
 
 32 Hardin v. Sweeney, 14 Wash. 129, 44 Pac. 138; approved in 
 Compton V. Schwabacker etc. Co., 15 Wash. 306, 46 Pac. 338.
 
 365 SUITS BY THE RECEIVER. 8 185 
 
 § 185. Proof by Receiver of His Appointment and Powers. 
 When, in a proper proceeding, the authority of a re- 
 ceiver to act is questioned, he should prove his appoint- 
 ment and powers, as any fact would be proved, the 
 proper and general course being to produce a copy of 
 the order appointing him and defining his rights.^^ 
 In the case of a suit by corporation receivers it was 
 said: "Their alleged appointment as receivers is de- 
 nied by the answer. The only proof that could be made 
 is a certified copy of the prder of dissolution and the 
 appointment of receivers. That not having been filed, 
 the court could not recognize their authority to bring 
 this action and invoke the equitable jurisdiction of the 
 court."^* Such certified copy is generally considered 
 conclusive evidence of the regularity of the proceedings 
 and prima facte evidence of the jurisdiction of the court 
 appointing the receiver.^^ And where the jurisdiction 
 of the appointing court was questioned, and the cer- 
 tified copy of the order did not show that an action 
 had been commenced, the court said : "It was necessary 
 to prove the commencement of the action, and that the 
 court obtained jurisdiction over the corporation, .... 
 to sustain the allegation that the plaintiff was duly ap- 
 pointed receiver."^® 
 
 83 Frank v. Morrison, 58 Md. 423; Seymour v. Newman, 77 Mo. 
 App. 578; Potter v. Merchants' Bank, 28 N. Y. 641, 86 Am. Dec. 273 
 (the pendency of an action resulting in the receivership may be 
 proved by its recitals in the appointing order). See for a case where 
 the defendant was estopped by the fact that the appointment had 
 been declared valid in prior proceedings between the parties, Griflfin 
 V. Long Island R. Co., 102 N. Y. 449, 7 N. K 735. See, also, Scott 
 V. Buncombe, 49 Barb. 73. 
 
 34 Pearson v. Leary, 126 N. C. 504, 36 S. E. 35, 127 N. C. 114, 37 
 8. E. 149. 
 
 35 Wright V. Nostrand, 94 N. Y. 32, and cases cited supra, in note 
 33. 
 
 38 Spings V. Bowery Nat. Bank, 63 Hun, 505, 18 N. Y. Supp. 574, 
 where the receiver failed to prove that he had filed the bond required
 
 i 186 EQUITABLE REMEDIES. 366 
 
 § 186. Receiver is Subject to the Same Defenses as the 
 One Whom He Represents. — It is generally held that a re- 
 ceiver can occupy no better position than those for 
 whom he acts and is appointed f^ that he is in the 
 place of the ones he represents, and has only such rights 
 as they had, so that the rights and liabilities of third 
 parties are not increased, diminished or varied by his 
 appointment. There passes to the receiver the prop- 
 erty and rights of the one from whom he takes, pre- 
 cisely in the same condition and subject to the same 
 equities as before his appointment,"^ and any defense 
 good against the original party is good against the 
 receiver.^^ This is true in the case of a receiver who 
 
 by law, but had been subsequently authorized to sue, the court said: 
 "It is a reasonable inference that the court, when it granted the 
 order to sue, was apprised of the facts affecting the plaintiffs' right 
 to bring the action, and ascertained that he had duly qualified as 
 
 receiver The question is not as to the weight of evidence but 
 
 whether there was any evidence tending to show that the bond was 
 filed"; Hegewisch v. Silven, 140 N. Y. 414, 35 N. E. 658. 
 
 37 Bell V. Shibley, 33 Barb. 614 ("it has been repeatedly held that 
 a receiver is subject to all the rights and equities existing against 
 the company"); Cooper v. Bowers, 42 Barb. 87, 28 How. Pr. 10; 
 Falkenbach v. Patterson, 43 Ohio St. 359, 1 N. E. 757; Cox v. Volkert, 
 68 Mo. 505, 511. 
 
 38 Van Wagoner v. Paterson Gas Light Co., 23 N. J. L. 285. 
 
 39 Casey v. La Societe de Credit Mobilier, 2 Woods, 77, Fed. Cas. 
 No. 2496; Tyler v. Hamilton, 62 Fed. 187 (and therefore, in the ab- 
 sence of fraud, he cannot avoid the contracts of the corporation he 
 represents); Mayer v. Thomas, 97 Ga. 772, 25 S. E. 761; Hatch v. 
 Johnson, 79 Fed. 828, 836; Perry v. Godbe, 82 Fed. 141 (thus he may 
 be bound by statements made in a complaint filed by the corporation 
 before his appointment); Bell v. Hanover Nat. Bank, 57 Fed. 822; 
 Security Title & Trust Co. v. Schlender, 170 111. 609, 60 N. E. 854; 
 State V. Sullivan, 120 Ind. 197, 21 N. E. 1095, 22 N. E. 325; Wardle 
 v. Hudson, 96 Mich. 432, 55 N. W. 992; Kuser v. Wright, 52 N. J. 
 Eq. 825, 31 Atl. 397; Little v. Garabrant, 90 Hun, 404, 35 N. Y. Supp. 
 €89; Capital City Mut. Fire Ins. Co. v, Boggs, 172 Pa. St. 91, 33 Atl. 
 349; Shuey v. Holmes, 20 Wash. 13, 54 Pac. 540; State v. Thum, 6 
 Idaho, 323, 55 Pac. 858 (not allowed to recover money held in trust 
 by the bank he represents).
 
 367 BUITS BY THE EECEIVER. § 18f 
 
 represents a corporation; the court saying: "He is as 
 much bound by a settlement which the company was 
 authorized to make as was the company itself. It 
 would be strange, indeed, if the legal acts of a corpora- 
 tion did not bind the receiver of its effects. If the 
 rule were not so no one would dare venture to deal with 
 a corporation."*** But in those cases where the receiver 
 is held to represent, not only the corporation, but also 
 the creditors, whose rights he is bound to protect, he 
 may avail himself of any of those rights, and is not 
 subject to defenses that would not be good against the 
 creditors.*^ 
 
 § 187. Set-off Against the Receiver — In General. — As 
 stated in a preceding paragraph, the general rule is 
 that a receiver acquires no greater interest in an estate 
 than the one from whom he takes, and it follows that 
 choses in action pass to him subject to any right of set- 
 off existing at the time of his appointment.*^ But the 
 
 40 Hyde v. Lynde, 4 N. Y. 387. In McLaren v. First Nat. Bank 
 of Milwaukee, 76 Wis. 259, 45 N. W. 223, the court states it as fol- 
 lows: "The result is that we must regard the plaintiff [receiver] as 
 standing in the shoes of the carriage company, and as having no 
 more right to recover, as against the bank, than the carriage com- 
 pany would have had." See, also, Ross v. Meehan Brake Shoe 
 Foundry Co. v. Southern M. L. Co., 72 Fed. 957; Moise v. Chapman, 
 24 Ga. 249. 
 
 41 Atwater v. Stromberg, 75 Minn. 277, 77 N. W. 963. In Mc- 
 Laren V. First Nat. Bank of Milwaukee, 76 V^is. 259, 45 N. W. 2'23, 
 it is said: "If the plaintiff [receiver] should make it appear that he 
 in fact represents creditors of the carriage company existing at the 
 time of the misappropriation, then it may be he can make a case 
 entitling him to recover as such receiver." See, also, Applcton v. 
 Turnbull, 84 Me. 72, 24 Atl. 592. See this subject discussed further, 
 post, § 190. 
 
 42 Fisher v. Knight, 61 Fed. 491, 9 C. C. A. 582, 17 U. S. App. 502; 
 Wheaton v. Daily Tel. Co. (C. C. A.), 124 Fed. 61; Jefferson v. Edring- 
 ton, .53 Ark. 545, 14 S. W. 99, 903; Balch v. Wilson, 25 Minn. 299; 
 quoted approvingly in Yardley v. Clothier, 49 Fed. at 341; Grant v.
 
 i 188 EQUITABLE REMEDIES. 36» 
 
 right of set-off must exist before the receiver is ap- 
 pointed, for "when a receiver is appointed, the accounts 
 of the insolvent are closed, and no changes can there- 
 after be made by any assignments of credits against 
 the estate; as this, if allowed, would injure the trust 
 fund, and defeat the ratable distribution to which each 
 creditor is entitled."*^ The supreme court of Pennsyl- 
 vania has said: "Now, if each creditor be allowed to 
 purchase goods at the receiver's sale, and pay for them 
 by a set-off, we can readily see how, at least, this part of 
 the proceedings of a court of equity might degenerate 
 from a regular and orderly process to a mere scramble 
 for the debtor's goods."^* 
 
 § 188. Set-off by Bank Depositor. — The principles in- 
 volved in a set-off against a receiver have received par- 
 ticular application in the case of receivers of insolvent 
 banks, when suing parties who had money on deposit 
 at the bank when it became insolvent. It is said to be 
 well settled that in a suit by a receiver of an insolvent 
 bank upon a note or obligation due the bank, the de- 
 fendant will be allowed to set off his deposit or certif- 
 icate of deposit held by him at the time of the sus- 
 
 Buckner, 49 La. Ann. 668, 21 South. 580; Mercantile Nat. Bank v. 
 McFarlane, 71 Minn. 497, 70 Am. St. Eep. 352, 74 N. W. 287. The 
 right of set-off is said to be within the statute of 1888 allowing suits 
 against federal receivers without leave of court: Grant v. Buckner, 
 172 U. S. 232, 19 Sup. Ct. 163, 43 L. ed. 430. 
 
 43 In re Hamilton, 26 Or. 579, 33 Pae. 1088. See, also, Chicago 
 Arch. Iron Works v. McKey, 93 111. App. 244 ("a claim of the debtor, 
 accruing before the receiver was appointed, cannot be set off against 
 a claim accruing after the receiver was appointed, and therefore due 
 the receiver and not the insolvent"); Van Dyck v. McQuade, 85 N. 
 Y. 617; U. S. Bung Mfg. Co. v. Armstrong, 34 Fed. 94 (the existence 
 of cross-demands or independent debts which could have been set 
 off at law, had they been asserted at the proper time, cannot be as- 
 serted in equity). 
 
 44 Singerly v. Fox, 75 Pa. St. 112.
 
 S69 SUITS BY THE RECEIVER. I 181 
 
 pension of the bank.^' But in order to avail himself 
 of the right of set-off, the defendant must have acquired 
 his right before the insolvency of the bank, as other- 
 wise the transaction may be void as in fraud of cred- 
 itors.^^ And it has been held that where a receiver sued 
 a stockholder of an insolvent bank for unpaid subscrip- 
 tions, the stockholders' deposit could not be set off, the 
 
 court saying: "They are not in the same right 
 
 To permit him to set off the debt due him would, where 
 the corporation is insolvent, manifestly give him a pref- 
 erence as a creditor. To this he is not entitled. It 
 is the right of the other creditors to have him pay in 
 the money due from him for stock as part of the fund 
 for the payment of debts."^'^ There has been some con- 
 flict in the decisions as to whether the right of set-off 
 existed when the note on which the receiver was suing 
 did not mature until after his appointment; the right 
 was denied in a federal case, stating : "When the plain- 
 tiff was appointed receiver, the defendant was in the 
 list of unsecured depositors, to whom payment, the bank 
 being insolvent, was prohibited. The defendant had 
 thus no right of set-off, nor any equity against its note, 
 not then matured, which passed to the receiver. To 
 
 46 Scott V. Armstrong, 146 U. S. 499, 13 Sup. Ct. 148, 36 L. ed. 
 1059; Snyder v. Armstrong, 37 Fed. 18 (see the case for a discussion 
 of the earlier cases) ; State v. Brobston, 94 Ga. 95, 47 Am. St. Rep. 
 138, 21 S. E. 146; Miller v. Receiver of the Franklin Bank, 1 Paige, 
 444; Davis v. Industrial Mfg. Co., 114 N. C. 321, 19 S. E. 371, 23 
 L. R. A. 322. See the statement in Hade v. McVay, 31 Ohio St. 
 231, though the set-oflE was not allowed by reason of a statute; Arm- 
 strong V. Warner, 49 Ohio St. 376, 31 N. E. 877, 17 L. R. A. 466; 
 Clarke v. Hawkins, 5 R. I. 219. 
 
 46 Stone V. Dodge, 96 Mich, 514, 56 N. W. 75, 21 L. R. A. 280 
 (the case contains a full review of the authorities on the subject); 
 Venango Nat. Bank v. Taylor, 56 Pa. St. 14; Smith v. Mosby, 9 
 Heisk. 501. 
 
 47 Williams v. Traphagen, 38 N. J. Eq. 57. 
 
 Equitable Remedies, VoL I — 24
 
 I 183 EQUITABLE REMEDIES. • 370 
 
 allow the setoff, now that the note has matured, and 
 thereby make payment in full to the defendant in part 
 discharge of its obligation to the bank, would be con- 
 trary, not only to the policy of the law, but also to the 
 plain meaning of its provisions."^^ But the decision 
 was reversed by the United States supreme court, and 
 the weight of authority seems to be to the effect that 
 the fact that. the claim thus held does not mature until 
 after the receiver's appointment, does not prevent the 
 defendant from using it as a set-off.^® 
 
 48 Armstrong v. Scott, 36 Fed. 63, citing Venango Nat. Bank v. 
 Taylor, 56 Pa. St. 14; the case was followed in Stephen v. Schuck- 
 man, 32 Mo. App. 333. It was reversed by the United States su- 
 preme court in Scott v. Armstrong, 146 U. S. 499, 13 Sup. Ct. 148, 
 36 L. ed. 1059, after having been disapproved by Yardley v. Clothier, 
 49 Fed. 337, which has been favorably received. 
 
 49 See Scott v. Armstrong, 146 U. S. 499, 13 Sup. Ct. 148, 36 L. ed. 
 1059. The case of Colton v. Drovers Perpetual Bldg. & Loan Assn. of 
 Baltimore, 90 Md. 85, 78 Am. St. Eep. 431, 45 Atl. 23, 46 L. E. A. 
 388, contains such a clear presentation of the principles involved that 
 I quote from it at length — Boyd, J.: "But it is said on behalf of 
 the appellants that, inasmuch as the note fell due after the appoint- 
 ment of the first receiver, he took it free from all equities, just as 
 a bona fide purchaser would have done, and that a claim in favor 
 of the bank which did not mature until in the hands of the receiver 
 is not subject to a set-off by a claim which existed against the bank 
 before the receiver's rights accrued; in short, that in one case the 
 debt is due by the bank to the customer, and in the other by the 
 customer to the receiver. If that were strictly correct, there would 
 be some ground for the contention; for if, for example, the appellee 
 had purchased some property from the receiver, it would not be 
 permitted to set off its claim against such indebtedness to the re- 
 ceiver, for it would thereby not only obtain an unwarranted prefer- 
 ence over other creditors, but it would prevent a proper settlement 
 of the involved estate, and, moreover, they would not be mutual 
 claims. But when the receiver was appointed, he took the assets of 
 the bank, and among those assets was this note. It was a debt 
 already incurred by the appellee and the bank. Although there are 
 some authorities to the contrary, the great weight of authority is 
 to the effect that the fact that the claim thus held by the receiver 
 does not mature until after his appointment does not prevent a 
 defemlant from using his claim as a set-off," Among other decisions
 
 371 SUITS BY THE KECEIVER. I 189 
 
 § 189. Set-off Against Corporation Receiver, in Suit Against 
 Stockholders. — In the case of a receiver of an insolvent 
 corporation, suing in behalf of its creditors to enforce 
 the liability of the stockholders, the defendant cannot 
 set off a claim that is good against the corporation 
 only.^*' Where the action was for their unpaid sub- 
 scription the court said: "They are debtors to the full 
 amount subscribed by them, and cannot be allowed to 
 appropriate any part of the fund belonging to the other 
 creditors till their liability has been paid."^^ And 
 where a stockholder was indebted to the corporation 
 for misappropriation of funds, and the receiver had a 
 surplus to divide among the stockholders, he was al- 
 lowed to set off the amount due the corporation against 
 the distributive share of the stockholder.^* But where 
 
 are Berry v. Brett, 6 Bosw, 627; Scott v. Armstrong, 146 U. S. 499, 
 13 Sup. Ct. 148, 36 L. ed. 1059; Piatt v. Bently, 11 Am. Law Eeg., 
 N. S., 171; In re Hatch, 155 N. Y. 401, 50 N. E. 49, 40 L. E. A. 
 664; Northampton Bank v. Balliet, 8 Watts & S. 311, 42 Am, Dec. 
 297; Aldrich v. Campbell, 4 Gray, 284; Smith v. Spingler, 83 Mo. 
 408; McCagg v. Woodman, 28 111. 84; Armstrong v. Warner, 49 Ohio 
 St. 376, 31 N. E. 877, 17 L. K. A. 466; Yardley v. Clothier, 2 C. C. A. 
 349, 51 Fed. 506, 17 L. K. A. 462; Skiles v. Houston, 110 Pa. St. 254, 
 2 Atl. 30. See, also, Pera v. Wickham, 135 N. Y, 223, 31 N. E. 1028, 
 17 L. K. A. 456. 
 
 The federal courts have not been harmonious on the question of 
 whether the set-off should be allowed in equity, or at law; their con- 
 clusion being influenced largely by statute. The case of Yardley v. 
 Clothier, 49 Fed, 337, contains a full discussion of the question. 
 See, also, Scott v. Armstrong, 146 U. S. 499, 13 Sup. Ct. 148, 
 36 L. ed, 1059; Armstrong v. Scott, 36 Fed. 63; Louis Snyder's Sons 
 V, Armstrong, 37 Fed. 18; Adams v. Spokane Drug Co., 57 Fed. 
 888, 23 L. E. A. 334; approving Yardley v. Clothier in preference to 
 Armstrong v. Scott; Hale v. McVay, 31 Ohio St. 231. 
 
 50 Sheafe v. Larimer, 79 Fed. 921, distinguishing the cases where 
 set-off is allowed on a bank deposit; Wallace v. Hood, 89 Fed. 11 
 (refusing to allow a cross-petition for false representation upon the 
 sale of the stock to defendant), 
 
 51 Bain v, Clinton Loan Assn., 112 N. C. 248, 17 S. E. 154. 
 
 5 2 Merrill v. Cape Ann. Granite Co., 161 Mass. 212, 36 N. E. 797, 
 23 L. E. A. 313.
 
 { 190 EQUITABLE REMEDIES. 873 
 
 the stockholder had actually advanced money to pre- 
 vent a burdensome assessment on the stockholders, he 
 was allowed to set it off against his unpaid subscrip- 
 tion on the ground that the real assets would not be 
 diminished by such payment.^* 
 
 § 190. Statutory Receiver of Insolvent Corporation Rep- 
 resents Its Creditors — The general rule that a receiver 
 takes the title of the individual or corporation whose 
 receiver he is, and that any defense which would have 
 been good against the former may be asserted against 
 the latter, is subject to two important and well-recog- 
 nized exceptions. The first of these relates to receivers 
 of insolvent corporations, appointed under the varying 
 terms of the statutes for the purpose of winding up 
 their affairs. Such a receiver, it is almost universally 
 held, "is to be regarded as the representative, not only 
 of the corporation, having power of asserting its rights, 
 taking its title and subject to its liabilities, but occu- 
 pies a still broader position, for he represents not only 
 the corporation, but also its creditors; and under his 
 duties as representative of the latter class he is in- 
 vested with powers and may do acts that could not be 
 done by a mere representative of the corporation."^* 
 
 63 Bausman v. Denney, 73 Fed. 69. See, also, Van Wagoner etc 
 T. Paterson Gas Light Co., 23 N. J. L. 283. 
 
 64 Peabody v. New England Waterworks Co., 184 HI. 625, 75 Am. 
 St. Rep, 195, 56 N. E. 957, reviewing many cases; Hamor v. Engineer- 
 ing Co., 84 Fed. 393; Bayne v. Brewer Pottery Co., 90 Fed, 754; In 
 re Wilcox etc. Co., 70 Conn. 220, 39 Atl. 163; Franklin Nat, Bank v. 
 Whitehead, 149 Ind, 560, 63 Am. St. Eep. 302, 49 N, E. 592, 39 L. E. 
 A. 725; Farmers' Loan v. Trust Co, v, Minneapolis etc. Works, 35 
 Minn, 543, 29 N. W. 349; Minnesota Thresher Mfg. Co. v. Langdon, 
 44 Minn. 37, 46 N. W. 310; Alexander v. Relfe, 74 Mo. 516, 9 Mo. 
 App, 133; Werner v. Murphy, 60 Fed. 769, reviewing New Jersey 
 eases; Mechanics' Nat. Bank v, Pennsylvania Steel Co., 57 N. J. L. 
 336, 30 Atl. 545; Gillett v. Moody, 3 N. Y. 479; Curtis v. Leavitt, 15 
 N. Y. 45 (a leading case); Pittsburgh Carbon Co. v. McMillan, 119
 
 373 SUITS BY THE RECEIVER. S 190 
 
 Since he stands before the court invested with all the 
 rights and equities of the creditors of the insolvent 
 corporation, it is especially his duty to avoid any act 
 of the corporation committed in fraud of those rights 
 and equities.^^ "It is of no importance, so far as the 
 present discussion is concerned, whether such agent of 
 the law takes the technical title to the debtor's prop- 
 erty, or takes only the possession of it In either case 
 he is the sole agent, through whom, and through whom 
 alone, as a general rule, the rights of creditors can be 
 protected and enforced; and, in protecting and enforc- 
 ing those rights, he is the representative of creditors, 
 and not of the debtor" ; and this is especially true where 
 the statute suspends the rights of the creditors to attach 
 or levy upon the corporate property after the appoint- 
 ment of the receiver.^^ Some limitations on these 
 
 N. Y. 46, 23 N. E. 530, 7 L. R. A. 46; Bien v. Bixby, 18 Misc. Rep. 
 415, 41 N. Y. Supp. 433; Cheney v. Maumee Cycle Co., 64 Ohio St. 
 205, 60 N. E. 207; Cole v. Satsop R. R. Co., 9 Wash. 487, 43 Am. St. 
 Rep. 858, 37 Pac. 700. "The effect of the appointment and the 
 Beiaure of the property by the receiver was to fasten the claims of 
 creditors upon it, and to give that officer control over it for the bene- 
 fit of creditors; and in this respect his relation to it was, for all prac- 
 tical purposes, the same as that which an assignee would have had. 
 The property thus sequestered was held by the receiver as effectu- 
 ally as an assignee could have held it, or as creditors could have held 
 it by attachment or levy. In no other way than through him 
 could the right of creditors be worked out, and in this aspect of the 
 case he represented the creditors, rather than the debtor": Cheney v. 
 Maumee Cycle Co., 64 Ohio St. 205, 60 N. E. 207, holding that a mort- 
 gage of the corporation's land unrecorded before the appointment of 
 the receiver was not a valid lien as against him. To the effect that 
 for the benefit of creditors a receiver may sue the directors for di- 
 verting the assets, see Hays v. Pierson (N. J. Eq.), 58 Atl. 728. 
 
 55 Werner v. Murphy, 60 Fed. 769 (creditor of the corporation can- 
 not sue to set aside fraudulent conveyance on the mere refusal of 
 the receiver to do so). 
 
 56 In re Wilcox etc. Co., 70 Conn. 220, 39 Atl. 163; Farmers' Loan 
 t<c T. Co. V. Minneapolis etc. Works, 35 Minn. 543, 546, 29 N. W. 
 3-lt). ' ' The pendency of the proceedings disables the creditors to
 
 § 190 EQUITABLE REMEDIES. 374 
 
 broad assertions of the receiver's character as repre- 
 sentative of the creditors are noticed hereafter.^^ 
 
 go on, each in his own behalf, to enforce his claim by action, judg- 
 ment, execution, and levy. So that, unless all the rights of the credi- 
 tors can be enforced in this proceeding, unless their right to avoid 
 transfers can be made available by means of it, then it is, to some 
 extent, an obstruction, rather than a remedy, to them." 
 
 57 See post, chapter on Creditors' Bills. In Eepublic Life Ins. 
 Co. V. Swigert, 135 111. 150, 167, 177, 25 N. E. 680, 685, 688, 12 
 L. R. A. 328, it was said: "We understand the rule to be, that where 
 a receiver is appointed for the purpose of taking charge of the prop- 
 erty and assets of a corporation, he is, for the purpose of determining 
 the nature and extent of his title, regarded as representing only the 
 corporate body itself, and not its creditors or shareholders, being 
 vested by law with the estate of the corporation, and deriving his own 
 title under and through it; and that for purposes of litigation he 
 takes only the rights of the corporation such as could be asserted in 
 its own name, and that upon that basis only can he litigate for the 
 
 benefit of either shareholders or creditors But, so far as his- 
 
 powers are derived from a statute, or from a lawful decree of court, 
 and the powers do not involve rights which, at the time of his ap- 
 pointment, were vested in such owners, he is not merely their repre- 
 sentative, but is the instrument of the law, and the agent of the 
 court which appointed him. Such right and authority as the law and 
 the court rightfully give him he possesses, and in respect to such right 
 he is not circumscribed and limited by the right which was vested in 
 and available to the owners." See, also, as supporting or tending^ 
 to support a similar view, Fairbanks v. Farwell, 141 m. 354, 30 N. E. 
 1056; Gottlieb v. Miller, 154 111. 44, 39 N. E. 992; Ray v. First Nat. 
 Bank, 111 Ky. 377, 63 S. W. 762; Smith v, Johnson, 57 Ohio St. 486, 
 49 N. E. 693; McLaren v. First Nat. Bank, 76 Wis. 259, 45 N. W. 223. 
 The doctrine of the Illinois courts seems to have been brought into- 
 closer accord with that generally prevailing by the later case of Pea- 
 body V. New England Waterworks Co., 184 111. 625, 75 Am. St. Rep. 
 195, 56 N. E. 957, supra, note 54. 
 
 On the general subject of the representative capacity of the cor- 
 poration receiver, see, also. Porter v. Sabin, 149 U. S. 473, 13 Sup.. 
 Ct. 1008, 37 L, ed. 818; Movius v, Lee, 30 Fed. 298; Crandall v. Lin- 
 coln, 52 Conn. 73, 52 Am. Rep. 560; Greene v. A. & W. Sprague Mfg. 
 Co., 52 Conn. 330; Davenport v. Lines, 72 Conn. 118, 44 Atl. 17; Ameri- 
 can T. and Sav. Bank v. McGettigan, 152 Ind. 582, 71 Am. St. Rep. 
 345, 52 N. E. 793 (action by receiver on behalf of creditors not al- 
 lowed, when not for the benefit of all the creditors); Holden v. Phelps^ 
 135 Mass. 61; Thompson v. Greeley, 107 Mo. 577, 17 S. W. 962; Har- 
 rington T. Connor, 51 Neb. 214, 70 N. W. 911; Stokes v. New Jersey
 
 375 SUITS BY THE EECEIVEE. § 191 
 
 § 191. Receiver in Supplementary Proceedings, How Far 
 a Representative of Creditors. — A receiver in proceedings 
 supplemental to execution is also, in some respects, a 
 representative of and trustee for the creditors at whose 
 instance he was appointed,^^ especially for the purpose 
 of attacking conveyances by the debtor made in fraud 
 of their rights.^^ ^'For this purpose he represents and 
 stands in place of the creditor, and prosecutes the ac- 
 tion in his behalf. The right to maintain the action 
 does not depend upon any succession by the receiver to 
 the title of the debtor, but upon the equitable right of 
 
 Pottery Co., 46 N. J. L. 237 (may attack judgment by confession 
 against the corporation); Williams v. Boiee, 38 N. J. Eq. 364 (suit to 
 recover improperly paid dividends) ; Williams v. McKay, 40 N. J. Eq. 
 ]89, 53 Am. Eep. 775; Graham Button Co. v. Spielman, 50 N, J. Eq. 
 120, 24 Atl. 571; Beebe v. George H. Beebe Co., 64 N, J. L. 497, 46 Atl. 
 368; Southard v. Benner, 72 N. Y. 424; Whittlesey v. Delaney, 73 N. 
 Y. 571 (may sue to set aside collusive judgment) ; Attorney-General v. 
 Guardian M. L. Ins. Co., 77 N. Y, 272 (is exclusive representative of 
 creditors, and may enjoin their separate actions to avoid the corpora- 
 tion's fraudulent transfers); Stonebridge v. Perkins, 141 N. Y. 1, 35 
 N. E. 980; Mason v. Henry, 152 N. Y. 529, 46 N. E. 837; Osgood v. 
 Laytin, 3 Keyes, 521 (may recover illegal dividends, and enjoin separ- 
 ate suits of creditors for that purpose); Powers v. C. H. Hamilton' 
 Paper Co., 60 Wis. 23, 18 N. W. 20. 
 
 58 Bostwick V. Menck, 40 N. Y. 383; Porter v. Williams, 9 N. Y. 142^ 
 59 Am. Dec. 519. 
 
 59 See Hill v. Western & A. E. Co., 86 Ga. 284, 12 S, E. 635; Farm- 
 ers' Loan & T. Co. v. Minn. E. & M. Works, 35 Minn. 543, 29 N. W. 
 349 (may avoid invalid chattel mortgage) ; Walsh v. Byrnes, 39 Minn. 
 527, 40 N. W. 831; Miller v. Mackenzie, 29 N. J. Eq. 291; Bergen v. 
 Little, 41 N. J. Eq. 18, 2 Atl. 614; Bold v. Dean, 48 N. J. Eq. 193, 21 
 Atl. 618; Walsh v, Eosso, 59 N. J. Eq. 123, 44 Atl. 708; Porter v. Will- 
 iams, 9 N. Y. 142, 59 Am. Dec. 519 (a leading case); Stephens v. Per- 
 rine, 143 N. Y. 476, 39 N. E. 11 (may avoid invalid chattel mortgage); 
 Stephens v. Meriden Britannia Co., 160 N. Y. 178, 73 Am. St. Eep. 678, 
 54 N. E. 781 (his right of action is equitable, not legal) ; Eeynolds v. 
 Aetna Life Ins. Co., 160 N. Y. 635, 55 N. E. 305, affirming 28 App. Div. 
 591, 51 N. Y. Supp. 446 (may reach amounts due on insurance policies,, 
 concealed by debtor) ; Hedges v. Polhemus, 9 Misc. Eep. 680, 30 N. Y.. 
 Supp. 556 (may avoid chattel mortgage); Pender v. Mallett, 123 N. C. 
 57. 31 S. E. 351.
 
 § 191 EQUITABLE REMEDIES. 376 
 
 the creditor to have set aside a conveyance which as 
 to him is invalid, but which is effectual as a cloud to 
 prevent the application of the property to the satis- 
 faction of his debt. There is no need that the receiver 
 take possession of the property for this purpose, nor 
 that he be in any way invested with the title. "^" If the 
 property fraudulently transferred has been sold by the 
 transferee, the receiver may, in the right of the cred- 
 itor, follow the fund or proceeds of the sale into the 
 hands of any person not a bona fide owner or holder 
 thereof.®^ But there is no statute and no rule of law 
 which entitles him to sue for anything that does not 
 belong or has not belonged to the debtor; he is not the 
 representative of the creditor to enforce a cause of ac- 
 tion to recover damages for a conspiracy between the 
 judgment debtor and others to prevent the collection 
 of the dehtf^ or to enforce a resulting trust created by 
 statute in favor of creditors, in the case where the 
 debtor pays the purchase price of land and causes the 
 title to be conveyed to another.®^ Further, it should 
 be noted that a receiver in supplementary proceedings, 
 like a receiver in a creditor's bill in favor of particular 
 creditors, is not a trustee for the benefit of all the 
 creditors, but only for the benefit of those in whose be- 
 half he is appointed.®^ His primary duty is to apply 
 
 60 Dunham v. Byrnes, 36 Minn. 106, 30 N. W. 402; Wright v. Nos- 
 trand, 94 N. Y, 32, 43. 
 
 61 Mandeville v. Avery, 124 N. Y. 376, 21 Am. St. Eep. 678, 26 
 N. E. 951. 
 
 62 Ward V. Petrie, 57 N. Y. 301, 68 Am. St. Rep. 790, 51 N. E. 1002 
 (see this case for an instructive summary of the rights and remedies 
 of receivers in supplementary proceedings in New York). 
 
 63 Since in such case the trust is construed to result not through 
 the debtor to the creditors, but directly to the creditors: Under- 
 wood V. Sutcliffe, 77 N. Y. 58. 
 
 64 Young V. Clapp, 147 111. 176, 32 N. E. 187, 35 N. E. 372; Rus- 
 BeU V. Chicago T. & S. Bank, 139 III. 538, 17 L. E. A. 345, 29 N.
 
 377 SUITS BY THE RECEIVER. S 191 
 
 the funds which he realizes from the property of the 
 debtor in satisfaction of the judgments which he was 
 ai)pointed to enforce, and no others.®^ He is "clothed 
 with power to set aside transfers fraudulent as against 
 the demands represented by him, only to an extent suf- 
 ficient to satisfy such demands and costs."®^ 
 
 E. 37; Bostwick v. Menck, 40 N. Y. 383; Goddard v. Stiles, 90 N. Y. 
 199. 
 
 65 Young V. Clapp, 147 111. 176, 32 N. E. 187, 35 N. E. 372; Bost- 
 wick V. Menck, 40 N. Y. 383; Gifford v. Rising, 59 Hun, 42, 12 N. 
 Y. Supp. 428. 
 
 66 Bostwick T. Menck, 40 N. Y. 383.
 
 I ld2 EQUITABLE BEMEDIES. 87» 
 
 CHAPTER VII. 
 
 RECEIVER'S EELATION TO PENDmG SUITS; AKD 
 WHEN IS HE A NECESSARY PARTY. 
 
 ANALYSIS. 
 
 § 192. Substitution of receiver as plaintiff in pending actions; effect 
 
 of his appointment on pending actions. 
 § 193. Substitution of receiver as defendant in pending actions. 
 § 194. Intervention by receivers. 
 
 § 195. Effect of change of receivers on pending actions. 
 § 196. When is receiver a necessary party. 
 
 § 192. Substitution of Receiver as Plaintiff in Pending 
 Actions; Effect of His Appointment on Pending Actions. — Au- 
 thority may be found to the effect that the appoint- 
 ment of a receiver with the right to sue deprives the 
 principal of the right to maintain actions, and there- 
 fore that pending proceedings abate by the appoint- 
 ment of a receiver.^ But the tendency of modern de- 
 cisions is in favor of the more reasonable rule that the 
 
 1 Boston etc. Co. v. Montana Ore Puichasiug (Jo., 2-i Mont. 142, 
 60 Pac. 990, where the court savs at page 991: "The necessary 
 effect of clothing the receiver with power to sue was to deprive the 
 plaintiff for the time being of like power. We have been cited to 
 no case or text-book announcing the contrary rule, and have been 
 unable to find any." To the same effect are the cases of Idaho 
 Gold Reduction Co. v. Croghan, 6 Idaho, 471, 56 Pac. 164; Kokomo 
 etc. Ey. Co. v. Pittsburg etc. Ky. Co., 25 Ind. App, 335, 58 N. E. 211; 
 Davis V. Ladoga Creamery Co., 128 Ind. 222, 27 N. E. 494. All of 
 these eases rest upon the text authority of Judge Thompson in 
 § 6900 of his Commentaries on the Law of Corporations. The only 
 authority which the learned author cites (Milwaukee Mutual Fir© 
 Ins. Co. V. The Sentinel Co., 81 Wis. 207, 51 N. W. 440, 15 L. R. A. 
 627), was a case holding that a dissolved corporation could not con- 
 tinue an action for libel pending before its dissolution.
 
 379 KECEIVEE'S EELATION TO PENDING SUITS. § 193 
 
 appointment of the receiver has no effect upon pending 
 actions, unless indeed the plaintiff in such action has 
 been restrained from prosecuting the action by the 
 court appointing the receiver, or, if a corporation, has 
 been dissolved by a final decree.^ A general injunctive 
 order, however, will not, under this latter view, be con- 
 strued as applying to pending actions.^ Even the facts 
 that a corporation is insolvent and that winding-up pro- 
 ceedings have been instituted in which a receiver has 
 been appointed, do not prevent the action from continu- 
 ing in the name of the corporation. The name is a 
 mere shell, and the recovery, of course, will be for the 
 benefit of those whom the receiver represents.^ In 
 cases of pending actions, of course, a receiver who is 
 vested with the choses in action of the principal may be 
 substituted as plaintiff, and such is doubtless the better 
 practice. But the failure to substitute him is, at most, 
 only a formal defect, and under the provisions of the 
 codes, notwithstanding a change in interest, the action 
 may be continued in the name of the original party.** 
 Of course if the original party ceases to exist, as in case 
 of the final dissolution of a corporation, actions begun 
 by such party perish with it* 
 
 § 193. Substitution of Receiver as Defendant in Pending 
 Actions. — The effect of an appointment of a receiver of 
 
 2 Hunt V. Columbia Ins. Co., 55 Me. 290, 92 Am. Dec. 592; Phoenix 
 Warehousing Company v. Badger, 67 N. Y. 294, 299; Sigua Iron Co. 
 V. Brown, 33 Misc. Eep. 50, 68 N. Y. Supp. 141; Warner v. Imbeau, 63 
 Kan. 415, 65 Pac. 648. 
 
 3 Sigua Iron Co. v. Brown, 33 Misc. Eep. 50, 68 N. Y. Supp. 141. 
 
 4 High on Eeceivers, § 258; Warner v. Imbeau, 63 Kan. 415 65 
 Pac. 648. 
 
 5 Warner v. Imbeau, 63 Kan. 415, 65 Pac. 648; Vanderhorst Brew- 
 ing Co. V. Amrhine, 98 Md. 406, 56 Atl. 833. 
 
 6 Milwaukee Mutual Fire Ins. Co. v. The Sentinel Co., 81 Wis. 
 207, 51 N. W. 440, 15 L. B. A. 627; National Bank v. Colby, 21 
 Wall. 609, 22 L. ed. 687.
 
 5 193 EQUITABLE REMEDIES, 380 
 
 a defendant's property is very different from the effect 
 of the appointment of a receiver of the plaintiff's prop- 
 erty. In the case of the plaintiff, it is always proper 
 for the receiver to be substituted where vested with the 
 right to sue, though sometimes, as has been seen, not 
 necessary. But in the case of the receiver appointed 
 for defendants, it is sometimes not proper to substitute 
 the receiver. As the ordinary chancery receiver is not 
 vested with title to the property, there is no change of 
 ownership demanding a substitution in such cases, and 
 as the appointment of such receiver is by no means 
 equivalent to a dissolution, in cases of corporate re- 
 ceivers, there is no abatement of pending actions. '^ 
 Such actions may therefore continue against the original 
 defendant notwithstanding the receiver's appointment. 
 But if the effect of the proceeding disturb the receiver's 
 possession of property, it is clear that he must be made 
 a party under leave of court.^ Or if the receiver be ap- 
 pointed upon the statutory dissolution of a corporation, 
 it is plain that pending actions abate, and can be con- 
 
 7 Decker v. Gardner, 124 N. Y. 334, 26 N. E. 814, 11 L. ed. 480. 
 In this case, an action of trespass was pending against a corporation 
 before the appointment of the receiver pendente lite; upon leave of 
 court the receiver was substituted, and afterwards moved for a dis- 
 missal of the action on the ground that he was not the proper 
 party, but that the corporation continued to be the proper party- 
 defendant. The court dismissed the action, and in a somewhat 
 elaborate opinion discusses the distinction between the receiver 
 pendente lite and the receiver on dissolution of the corporation. In 
 Hunt V. Columbia Ins. Co., 55 Me. 290, 296, 92 Am. Dec. 592, Bar- 
 rows, J., says: "Like the apocalyptic church in Sardis, when its 
 existence was recognized and it was addressed in the language of 
 rei)roof by the apostle, though in some sort it may be said to be 
 dead, 'it has a name to live'; and for the furtherance of justice it 
 is best to 'strengthen the things that are ready to die' ": GriflSth 
 V. Burlingame, 18 Wash. 429, 51 Pac. 1059; Kelley v. U. P. E. Co., 
 58 Kan. 161, 48 Pac. 843, with which compare Scannell v. Felton, 57 
 Kan. 468, 46 Pac. 948. 
 
 8 Calhoun v. Lanoux, 127 U. S. 634, 8 Sup. Ct. 1345, 32 I^ ed. 297.
 
 381 EECEIVER'S RELATION TO PENDING SUITS. fi 193 
 
 tinued, if at all, only against the reoeiver, who can be 
 sued, in general, only by leave of court.* Nothing 
 short of an actual dissolution, however, abates actions 
 already pending; the mere commencement of winding- 
 up proceedings and the appointment of a receiver 'pen- 
 dente lite does not have that result.^*^ If a corporation 
 be dissolved, actions against it fall, unless expressly 
 reserved by the decree of dissolution, and the plaintiffs 
 in such actions must seek their relief in the adminis- 
 tration proceedings in the court granting the order of 
 dissolution.^^ The receiver, by appearing and defend- 
 ing without leave of court, or where he is not a proper 
 
 » Nelson v. Hubbard, 96 Ala. 245, 11 South. 428; Rogers v. Haines^ 
 m Ala. 586, 11 South. 651; Combes v. Keyes, 89 Wis, 297, 46 Am. St. 
 Rep. 839, 62 N. W. 89, 27 L, R. A. 369; Toledo etc. Co, v, Beggs, 85 
 HI, 80, 28 Am, Rep, 613; People v Knickerbocker Life Ins, Co., 106 
 N. Y. 619, 13 N, E, 447; Morgan v. New York Nat. B, & L. Assn,, 
 73 Conn. 151, 46 Atl. 877; Wilcox v. Continental L, Ins. Co., 56 Conn. 
 468, 16 Atl. 244; Pendleton v. Russell, 144 U, S. 640, 12 Sup, Ct. 
 743, 36 L. ed, 574; National Bank v. Colby, 21 Wall, 609, 22 L, ed. 
 C87; Gray v. Taylor (N. J,), 44 Atl, 668. But where in the prior 
 action the court has taken possession of the res by its receiver, a 
 subsequent dissolution of the corporation does not hinder the first 
 court from rendering a valid decree: Leadville Coal Co. v. MeCreery^ 
 141 U. S. 475, 12 Sup, Ct, 28, 35 L. ed, 824. 
 
 10 Page v. Supreme Lodge K, & L, of P., 161 Mass. 584; Warner 
 V. Imbeau, 63 Kan. 415, 65 Pac. 648. But the receiver pendente lite 
 in winding-up proceedings may have the prosecution of such action» 
 enjoined, for the corporation having no assets and no means of de- 
 fense, it is proper that the claims should be adjudicated by the 
 court administering its estate: Morton v. Stone Harbor Imp. Co. (N. 
 J.), 44 Atl, 875. A recent writer (Alderson on Receivers, p. 510) 
 suggests that this case is in direct conflict with another decision of 
 the same court in the same volume, Gray v, Taylor (N, J,), 44 Atl. 
 668, The latter case holds that the dissolution of a foreign corpora- 
 tion by a decree in the court of its domicile abates pending actions 
 everywhere, but holds that the particular action was exempted from 
 the decree of dissolution. In the Morton case there was not yet 
 a decree of dissolution, though proceedings looking to that end 
 were instituted. It is not perceived that any inconsistency exist* 
 between the two decisions. 
 
 11 Gray v. Taylor (N. J,), 44 Atl. 668.
 
 §5 194, ]'.)5 EQUITABLE REMEDIES. 382 
 
 party, cannot bind the fund, and the judgment against 
 him will be without effect^^ 
 
 § 194. Intervention by Receivers. — The receiver*s right 
 to intervene in pending actions stands on a different 
 footing both from his right to be substituted as plain- 
 tiff and from his right to be substituted as defendant 
 in pending actions. While he may be substituted as 
 plaintiff in every case, and while he may be made a 
 defendant only in cases where the action disturbs his 
 possession or where he has title in trust for creditors 
 and others, the right to intervene stands on a middle 
 ground. Such intervention is allowed where the re- 
 ceiver has an interest in the controversy which it is 
 deemed expedient that he should protect, and is largely 
 a matter for the exercise of the court's discretion.^^ 
 
 § 195. Effect of Change of Receivers on Pending Actions. 
 "So long as the property of the corporation remains in 
 the custody of the court and is administered through 
 the agency of a receiver, such receivership is continuous 
 and uninterrupted until the court relinquishes its hold 
 upon the property, although its personnel may be sub- 
 ject to repeated changes. Actions against the receiver 
 are, in law, actions against the receivership, and the 
 funds in the hands of the receiver, and his contracts, 
 misfeasances, negligences and liabilities are official and 
 not i^ersonal and judgments against him are payable 
 
 12 Pendleton v. Eussell, 144 U. S, 640, 12 Sup. Ct. 743, 36 L. ed. 
 574. But compare Smith v. United States Express Co., 135 111. 279, 
 25 N. E. 527; Gray v. Taylor (N. J.), 44 Atl. 668. 
 
 13 Andrews v. Steel City Bank, 77 Mo. 342; State v. Bank of 
 Ottumwa, 76 Mo. 715; Hedrick v. McElroy (Iowa), 76 N. W. 716; 
 Bowen v. Needles Nat. Bank, 76 Fed. 176. A receiver who is merely 
 a stake-holder cannot intervene: National Park Bank v. Goddard, 65 
 Hun, 626, 20 N. Y. Supp. 526, 984.
 
 383 WHEN RECEIVER A NECESSARY PARTY. i 196 
 
 only from the funds in his hands."* ^ Accordingly, 
 where successive receivers are appointed, proceedings 
 pending against one should be continued in the name 
 of the successor. The liability continues only so long 
 as the court retains the fund, and therefore the dis- 
 charge of the receiver, and the turning over of the fund 
 or res to the purchaser, terminates the receiver's liabil- 
 ity.*^ In case of the termination of the proceedings, 
 it is therefore usual for the court to allow a certain 
 time within which intervening petitions against the re- 
 ceiver may be heard before the fund or res is finally 
 surrendered.*® An interesting extension of equitable 
 principles has made the railroad company to which the 
 property has been surrendered on the termination of the 
 receivership liable for the receiver's wrongs to the ex- 
 tent of the betterments.*^ 
 
 § 196. When is Receiver a Necessary Party. — Where the 
 right of action is vested in the receiver by the order of 
 appointment, he is, of course, the only necessary party 
 plaintiff.** And where he would be affected directly 
 
 14 McNulta V. Lochridge, 141 U. S. 327, 332, 12 Sup. Ct. 11, 35 
 L. ed. 796; Guaranty Co. of N. D. v. Hanway, 104 Fed. 369, 373, 44 
 C. C. A. 312; Robinson v. Mills, 25 Mont. 391, 65 Pac. 114. If the 
 second receiver is appointed to control only a portion of the fund 
 controlled by the first, he is not liable for his predecessor's wrongs: 
 Jones V. Schlapback, 81 Fed. 274. 
 
 15 Archambeau v. Piatt, 173 Mass. 249, 53 N. E. 816; Kansas & 
 G. S. R. R. Co. V. Dorough, 72 Tex. Ill, 10 S. W. 711. 
 
 10 Such was the decree in Texas & Pacific Ry. v. Johnson, 151 U. 
 S. 81, 14 Sup. Ct. 250, 38 L. ed. 81; and compare Texas & Pacific 
 Ry. V. Bloom, 164 U. S. 639, 17 Sup. Ct. 216, 41 L. ed. 580; Fidelity 
 Ins. Co. V. Norfolk etc. R. Co., 88 Fed. 815. 
 
 17 Texas & Pacific R. Co. v. Bloom, 164 U. S. 636, 17 Sup. Ct. 
 216, 41 L. ed. 580; Bartlett v. Cicero etc. Co., 177 HI. 68, 69 Am. St. 
 Rep. 206, 52 N. E. 339. 
 
 18 Porter v. Sabin, 149 U. S. 473, 13 Sup. Ct. 1008, 37 L. ed. 815, 
 where a receiver of a manufacturing company has been appointed by 
 a state court, no action can be maintained against Its officers for
 
 S 196 EQUITABLE EEMEDIEa 884 
 
 by the decree he must be made a party defendant. Thus, 
 where a railroad company had its property placed in 
 the hands of a receiver pendente lite appointed in fore- 
 closure proceedings, it was held that he was the only 
 necessary party defendant in a bill seeking specific per- 
 formance of a contract made by the company.^® So a 
 partnership receiver is a necessary party defendant in 
 an action to foreclose a mortgage given by the partr 
 nership.2^ But where the receiver is appointed to hold 
 property in proceedings which do not look toward the 
 ultimate disposition of the property, he is not a neces- 
 sary party in actions subsequently commenced.^^ And 
 of course where a contract is made by a receiver, say of 
 a partnership, he alone need be sued, and the surviving 
 partner need not be joined.^^ A receiver appointed bV 
 the comptroller of the currency to take charge of assets 
 
 fraudulent misappropriation of its funds by stockholders. The right 
 of action is in the receiver, and even though the state court has re- 
 fused to allow him to sue or to be made a party to the bill, his ab- 
 sence is not excused; cf. Brinkerhoff v. Bostwick, 88 N, Y. 52; Acker- 
 man V. Halsey, 37 N. J. Eq, 356; Davis v. Gray, 16 Vfall. 203, 21 
 L. ed. 447. 
 
 19 Express Co. v. Eailroad Co., 99 U. S. 191, 25 L. ed. 319; South- 
 ern Mutual B. & L. Assn. v. Andrews, 122 Ala. 601, 26 South. 113. 
 
 20 Kirkpatrick & Corning v. Corning, 38 N. J. Eq. 234; Kirkpatrick 
 T. McElroy, 41 N. J. Eq. 539, 7 Atl. 647; Tyson v. Applegate, 4a 
 N, J. Eq. 305; Comer v. Bray, 83 Ala. 217, 3 South. 554. 
 
 21 Thus, where a receiver was appointed to take charge of mort- 
 gaged property and collect the rent thereof, he is not a necessary 
 pnrty to a bill subsequently filed to foreclose a mortgage; Heffron v. 
 Oagp, 149 111. 182, 36 N. E. 569; Keeney v. Insurance Co., 71 N. Y. 
 396, 27 Am. Rep. 60; Calhoun v. Lanoux, 127 U. S. 634, 8 Sup. Ct. 
 1345, 32 L. ed. 297. A receiver appointed in an action for an ac- 
 eounting need not be made a party in actions subsequently brought 
 by the creditors: Heath v. Missouri etc. Ey. Co., 83 Mo. 617; Ohio & 
 M. Ey. Co. v. Eussell, 115 111. 52, 3 N. E. 561; Paddack v. Staley, IS 
 Colo. App. 363, 58 Pac. 363. 
 
 22 Painter v. Painter, 138 Cal. 231, 94 Am. St. Eep. 47, 71 Pac. 
 »0.
 
 385 WHEN EECEIVER A NECESSARY PARTY. S ^^ 
 
 of a national bank is not a judicial oflBeer, and is not 
 a proper party, for example, in an action brought for 
 rent due from the bank.^^ 
 
 23 Chemical Nat. Bank of Chicago v. Hartford Deposit, 156 HI. 
 522, 41 N. E. 225j Bank of Bethel v. Pahquioque Bank, 14 Wall. 383, 
 20 L. ed. 840. 
 
 Equitable Remedies, Vol. I — 25
 
 I ii)7 EQUITABLE EEMEDIES. 386 
 
 CHAPTER VIII. 
 
 RECEIVERS— MANAGEMENT AND DISPOSITION OF 
 PROPERTY. 
 
 ANALYSIS. 
 
 § 197. In general. 
 
 § 198. Discretion allowed to managing receiver. 
 
 § 199. Duty to obtain instructions. 
 
 § 200. Duty to collect assets. 
 
 S§ 201-203. Eight to continue business. 
 
 § 202. Executory contracts. 
 
 § 203. Existing leases. 
 
 § 204. Eight to make contracts. 
 
 § 205. Eights in relation to employees. 
 
 § 206. Eight to employ attorneys. 
 
 § 207. Eight to make repairs, improvements, etc. 
 
 § 208. Eight to lease property. 
 
 S§ 209-213. Eight to sell property. 
 
 § 209. Sales — In general. 
 
 § 210. Sale is subject to confirmation. 
 
 § 211. Personal property. 
 
 § 212. Sale is subject to existing liens. 
 
 § 213. Effect of reversal of order appointing receivers, 
 
 §§ 214-216. Eeceivers' certificates. 
 
 § 214. In general. 
 
 § 215. Nature of certificates. 
 
 § 216. Purposes for which certificates may be issued. 
 
 § 217. Liability for fraud, negligence, etc. 
 
 § 197. In General. — When a receiver is appointed, and 
 property is committed to him, as such, he becomes the 
 officer and custodian of the court. It is his duty to 
 keep and manage the property according to the direc- 
 tions and orders of the court. The court's orders are 
 the measure of his authority, and he must neither ex- 
 ceed nor ignore them. In managing, he must seek in-
 
 387 EECEIVEE'S MANAGEMENT OF PEOPERTY. § 193 
 
 struction on all matters of importance. If be exceeds 
 his authority, he cannot charge the estate for the ex- 
 penses incurred thereby; and if his wrong has resulted 
 in loss, he must make good the deficiency.* 
 
 § 198. Discretion Allowed to Managing Receiver. — While 
 the receiver must, in general, confine his action within 
 the scope of the orders of the court, in many matters of 
 administrative detail be is allowed a discretion.^ Mere 
 mistakes of judgment in regard to such matters will not 
 be charged against him. In many instances it would be 
 impracticable to apply to the court for instructions; 
 and frequently the questions arising are so numerous 
 that the court could not conveniently consider them.' 
 Such action by the receiver is at his own risk, and is 
 
 J Henry v. Henry, 103 Ala. 582, 15 South. 916. And see cases 
 cited in subsequent paragraphs. 
 
 2 Continental Trust Co. v. Toledo St. L. & K. C. E. Co., 59 Fed. 
 514; Cowdrey v. Eailroad Co., 1 Woods, 336, Fed. Cas. No. 3293; 
 Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909. "Modern prac- 
 tice permits them to exercise their sound discretion in many mat- 
 ters relating to the care and management of property in their cus- 
 tody, subject to the subsequent approval of the court, which will 
 be given when the officer has acted in good faith, and what he has 
 done appears to have been beneficial to the parties interested": 
 State Central Sav. Bank v. Fanning Bali-Bearing Chain Co., 118 
 Iowa, 698, 92 N. W. 712. 
 
 3 "Doubtless the chancellor has power to retain in his hands the 
 administration of such a trust and to personally direct and order 
 each contract into which the receiver should enter. But it would 
 obviously be impracticable to adopt such a course in running a rail- 
 road. To select and employ the necessary subordinates; to fix the 
 term of service and the amount of wages; to contract for and pur- 
 chase materials and supplies; and to anticipate in these respects 
 the future needs of one of the gigantic corporations by express or- 
 ders in each case, — would require the whole time of the chancellor 
 
 and could never have been intended by this legislation 
 
 Whether a power to exercise such discretion would not be assumed 
 to exist in every case, without a special order, need not be consid- 
 ered, for it is clear that the chancellor may accord such discretion-
 
 S 199 EQUITABLE REMEDIES. 388 
 
 subject to the subsequent approval of the court.'* In 
 important matters he should first obtain an order, and 
 then keep strictly within its limits. These rules apply 
 with special force to railway receiverships, where the 
 details are many. Mr. Justice Bradley, of the supreme 
 court of the United States, sitting as circuit judge, 
 stated the rule as follows : "All outlays made by the re- 
 ceiver in good faith, in the ordinary course, with a view 
 to advance and promote the business of the road, and to 
 render it profitable and successful, are fairly within the 
 line of discretion which is necessarily allowed to a re- 
 ceiver intrusted with the management and operation 
 of a railroad in his hands. His duties, and the discre- 
 tion with which he is invested, are very different from 
 those of a passive receiver, appointed merely to collect 
 and hold moneys due on prior transactions, or rents 
 accruing from houses and lands. And to such outlays 
 in ordinary course may properly be referred, not only 
 the' keeping of the road, buildings and rolling stock in 
 repair, but also the providing of such additional accom- 
 modations, stock and instrumentalities as the necessities 
 of the business may require."^ 
 
 § 199. Duty to Obtain Instructions. — A receiver should, 
 in all matters of importance not covered by the order of 
 the appointing court, apply to the court for instructions. 
 If he does not, he will be held liable in case the court 
 shall subsequently disapprove of his action.® Instruc- 
 
 ary power to a receiver by a general order, such as was made in this 
 cause": Vanderbilt v. Little, 43 N. J. Eq. 669, 12 Atl. 188, per 
 Magie, J. 
 
 4 State Central Sav. Bank v. Fanning Bali-Bearing Chain Co., 113 
 Iowa, 698, 92 N, W. 712. 
 
 6 Cowdrey v. Eailroad Co., 1 Woods, 336, Fed. Cas. No. 3293. 
 
 6 Braman v. Farmers' Loan etc. Co., 114 Fed. 18, 51 C. C. A. 
 644; In re Angell, 131 Mich. 345, 91 N. W. 611.
 
 389 RECEIVER'S MANAGEMENT OF PROPERTY. S 199 
 
 tions must be obtained in the receivership action, and 
 frequently they are given on ex parte application.'^ In 
 some instances they may be given by the judge in cham- 
 bers.* The better practice is to require notice when 
 any adverse rights are involved, so that the parties may 
 be heard before an order is given. It has been intimated 
 by a federal court that while an ex parte order may be 
 binding upon the receiver, it is not conclusive, and may 
 be set aside in the event that the judge changes his 
 mind." Matters of infinite variety may be determined 
 
 7 Free Gold Min. Co. v. Spiers, 136 Cal. 484, 69 Pac. 143 (ew parte 
 order directing receiver of mining property to purchase a cyanide 
 plant sustained); Weeks v. Weeks, 106 N. Y. 626, 13 N. E, 96 (court 
 may direct receiver to lease the property, upon ex parte application; 
 receiver may make such application although original order is silent 
 on question of leasing). An order made in another action is not 
 binding upon the receiver: Merritt v. Sparling, 88 Hun, 491, 34 N. 
 Y. Supp. 882. 
 
 8 State V. Port Royal etc. Ry. Co., 45 S. C. 413, 23 S. E. 363 (by 
 virtue of statute authorizing judges, at chambers, and upon reason- 
 able notice, "to make, direct, and award all such process, commis- 
 sions and interlocutory orders, rules, and other proceedings whenever 
 the same are not grantable of course according to the rules and 
 practice of the court"). 
 
 » Missouri Pac. Ry. Co. v. Texas etc. Ry. Co.. 31 Fed. 862 ("If 
 there are parties in interest, and they have their day in court, the 
 advice may be decisive. But, if the matter is ex parte, the value of 
 the advice depends largely upon the information and ability of the 
 judge, and is probably binding only on the receivers, for the judge 
 may change his mind on hearing full argument"). In Weeks v. 
 Weeks, 106 N. Y. 626, 13 N. E. 96, Finck, J., said: "The general 
 power of a court to modify or vacate its judgments or orders for 
 fraud or irregularity, or where it has acted inadvertently, or im- 
 prudently, is well settled. It is true the law protects the title of a 
 third person, being a bona fide purchaser on a sale on an execution 
 urder a judgment voidable but not void, although the judgment is 
 subsequently reversed for error. This principle does not, we think, 
 preclude the court from modifying or vacating a summary order 
 made improvidently in the course of an action, although the rights 
 
 of third persons may be affected thereby We think the court 
 
 was authorized to award indemnity out of the fund arising under 
 the judgment in partition, and that nothing else would satisfy the 
 claims of justice."
 
 §§ 200-202 EQUITABLE EEMEDIES. 3y0 
 
 by the court on such application. It has been held, 
 however, that no instructions as to the disposition of 
 funds will be given until the funds are in court.^^ 
 
 § 200. Duty to Collect Assets. — It is generally one of 
 the first duties of a receiver in the performance of his 
 trust to collect the assets. Here, as in all other matters, 
 he must act under the direction of the court. The means 
 by which he may possess himself of the property — by 
 summary proceedings against parties and by action 
 against others — are discussed at length elsewhere.^^ 
 
 § 201. Right to Continue Business. — Unless directed by 
 an order of the court, a receiver has no authority to 
 continue a business. If he does, "it is sufficient to show 
 the inventory and appraisement, and the burden is on 
 him to explain and account for the property."^^ In 
 proper cases, where it is for the best interests of all con- 
 cerned, the court will direct the receiver to continue 
 with the business.^^ Under such circumstances, much 
 must of necessity be left to the discretion of the officer. 
 Such an order impliedly authorizes him to contract 
 debts and incur liabilities on account of the business. 
 
 § 202. Executory Contracts. — Where a receiver is au- 
 thorized by the court to continue the business, he is im- 
 
 10 Strauss v. Carolina Interstate B. & L. Assn., 117 N. C. 308, 53 
 Am. St. Rep. 585, 23 S. E. 450, 30 L. R. A. 693, 118 N. C. 556, 24 S. 
 E. 116. 
 
 11 See § 161, and chapter VI, ante; chapter XI, post. 
 
 12 Pangburn v. American Vault, Safe & Lock Co., 205 Pa. St. 93, 
 54 Atl. 508. 
 
 13 For instances where such orders have been given, see Thornton 
 V. Highland Ave, & B. R. Co., 94 Ala. 353, 10 South. 442; Florence 
 Gas, Electric L. & P. Co. v. Hanby, 101 Ala. 15, 13 South. 343; 
 Eochat V. Gee, 137 Cal. 497, 70 Pac. 478; Cake v. Woodbury, 3 App. 
 D. C. 60; Dayton v. Wilkes, 17 How. Pr. 510; Smith v. New York 
 Con. Stage Co., 18 Abb. Pr. 419. And see the very numerous cases 
 of railway receiverships cited in this chapter.
 
 S91 RECEIVER'S MANAGEMENT OF PROPERTY. § 203 
 
 pliedly directed to complete such unfinished contracts 
 as are for the best interests of the trust. He is not 
 bound to complete contracts of which he disapproves;^* 
 but he is expected to investigate them and either act ac- 
 cording to his own judgment or obtain the direction of 
 the court.^^ "The privilege of the receiver in acting for 
 the best interest of the estate and its creditors not only 
 extends to the right to elect what contracts he will 
 adopt, but also to make the election without at least 
 subjecting the fund required for the satisfaction of ex- 
 isting claims of creditors to a charge for damages."^^ 
 
 § 203. Existing Leases. — A receiver is not bound by an 
 existing lease, unless he adopts it.^^ The circumstances 
 authorizing such adoption are similar to those which 
 enable him to take advantage of ordinary existing con- 
 tracts. He is not bound to elect immediately upon his 
 appointment. Instead, he may take and retain posses- 
 sion for such reasonable time as will enable him to in- 
 telligently elect whether the interest of his trust will be 
 best subserved by adopting the lease and making it his 
 own, or by returning the property to the lessor.^ ^ Ac- 
 
 14 Dushane v. Beall, 161 U. S. 516, 16 Sup. Ct. 367, 40 L. ed. 791 
 (dictum); Central Trust Co. v. East Tennessee Land Co., 79 Fed. 
 19;'Well3 V. Hartford Manilla Co., 76 Conn. 27, 55 Atl. 599; Brown 
 V. Warner, 78 Tex. 543, 22 Am. St. Rep. 67, 14 S. W. 1032, 11 L. R. 
 A. 394. See, however, Elmira Iron & Steel R. M. Co. v. Erie Ry. Co., 
 26 N. J. Eq. 284, where the court, by its order, directed that "any 
 person or corporation having a contract with the Erie company shall 
 be at liberty to apply by petition in this suit, or by independent 
 bill, for, and obtain relief and injunction, if entitled thereto, to 
 require the company or the receiver to refrain from violating any 
 Buch contract." 
 
 15 Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909. 
 
 16 Wells v. Hartford Manilla Co., 76 Conn. 27, 55' Atl. 599. 
 
 17 Dayton Hydraulic Co. v. Felsenthall, 116 Fed. 961, 54 C. C. A, 
 537; Klein v. W. A. Gavenesch Co., 64 N. J. Eq. 50, 53 Atl. 196. 
 
 18 Carswell v. Trust Co., 74 Fed. 88, 20 C. C. A. 282; Dayton Hy- 
 draulic Co. v. Felsenthall, 116 Fed. 961, 54 C. C. A. 537. See, also,
 
 { 204 EQUITABLE REMEDIES. 392 
 
 cordingly, a railroad receiver may operate a leased line 
 for a reasonable time in order to ascertain the situa- 
 tion of affairs, and such action will not amount to an 
 adoption of the lease.^' What is a reasonable time for 
 him to so hold must depend largely upon the circum- 
 stances of each case.^*^ If he holds the premises for a 
 longer time, continues the business, and does nothing to 
 show an election not to adopt, he vdW be held to the 
 terms of the lease.^^ Payment of rent is a circumstance 
 to be considered as indicating an adoption, although it 
 is not conclusive.22 If he elects to adopt a lease, he 
 "becomes vested with the title to the leasehold interest, 
 and a privity of estate is thereby created between the 
 lessor and the receiver, by which the latter becomes 
 liable upon the covenant to pay rent/'^a 
 
 § 204. Right to Make Contracts. — Receivers can make 
 only such contracts as the court may previously author- 
 
 Johnson v. Lehigh Val. Traction Co., 130 Fed. 932; Tradesman Pub. 
 Co. V. Knoxville C. W. Co., 95 Tenn. 634, 49 Am. St. Rep. 943, 32 
 S. W. 1097, 71 L. R. A. 593. The same principle applies to a lease 
 of rolling stock: Sunflower Oil Co. v. Wilson, 142 U. S. 313, 12 Sup. 
 Ct. 235, 35 L. ed. 1025; Piatt v. Railroad Co., 84 Fed. 535, 28 C. C. 
 A. 488. 
 
 19 Quincy, M. & P. E. Co. v, Humphreys, 145 U. S. 82, 12 Sup. Ct. 
 787, 36 L, ed. 632. 
 
 20 Ames v. Union Pac. R. Co., 60 Fed. 967 (sixty-five days reason- 
 able, in railroad lease); Carswell v. Farmers' Loan etc. Co., 74 Fed. 
 88, 20 C. C. A. 282, 43 U. S. App. 300 (ten months reasonable); 
 Smith V. Goodman, 149 111. 75, 36 N. E. 621 (four mouths). 
 
 21 Link Belt Machinery Co. v. Hughes, 174 111. 155, 51 N. E. 179. 
 Where the receiver completes the term without any act of disaffirm- 
 ance, he cannot then repudiate and pay only on the basis of a quan- 
 tum iiwruit: Spencer v. World's Columbian Exposition, 163 HI. 117, 
 45 N. E. 250 (affirming 58 111. App. 637). 
 
 22 Wells V. Higgins, 132 N. Y, 459, 30 N. E. 861; Commonwealth 
 V. Franklin Ins. Co., 115 Mass. 278 (not an adoption when paid aa 
 a compromise). 
 
 23 See United States Trust Co. v. Wabash W. Ry. Co., 150 U. S. 
 299, 14 Sup. Ct. 86, 37 L. ed. 1085.
 
 393 RECEIVER'S MANAGEMENT OF PROPERTY. § 204 
 
 ize or subsequently approve. As we have already seen, 
 the authority may frequently be inferred from the terms 
 of the order, although not expressly given. Thus, where 
 the order directs a receiver to continue the business, he 
 is impliedly authorized to enter into necessary contracts. 
 A party dealing with him, however, is bound to take 
 notice of any want of authority, and cannot complain if 
 the court sets aside the contract as unauthorized.^^ It 
 has been held, on the other hand, that where the con- 
 tracts are such as the receiver has discretion to make, 
 and there is nothing to show any excess of authority, 
 the court will not repudiate without providing com- 
 pensation for loss incurred.2^ And where a contract 
 within the discretion of the receiver has been fully per- 
 formed, the contractor will not be deprived of the agreed 
 compensation merely because the court regards the con- 
 tract as improvident, injudicious and unreasonable, un- 
 less it appears that the contractor had notice of its im- 
 proper character.2^ The receiver should not deal with 
 and purchase supplies from another company composed 
 of officials under him.^'^ 
 
 24 Tripp V. Boardman, 49 Iowa, 410. A receiver appointed to con- 
 duct the management of a railroad is bound by a transportation 
 contract made by his freight agent: Farmers' Loan etc. Co. v. North- 
 ern Pac. E. Co., 120 Fed. 873. 
 
 25 Vanderbilt v. Central. R. Co., 43 N. J. Eq. 669, 12 Atl. 188; Van- 
 derbilt v. Little, 51 N. J. Eq. 289, 26 Atl. 1025. See State Bank of 
 Virginia v. Domestic S. M. Co., 99 Va. 411, 86 Am. St. Rep, 891, 39 
 S. E. 141. 
 
 26 Vanderbilt v. Central R. Co., 43 N. J, Eq. 669, 12 Atl. 188. 
 
 27 Clarke v. Central R. & B. Co., 66 Fed. 16. ("Parties owing 
 duties to the railroad by reason of their official relations thereto, 
 and connected therewith, could not be permitted to deal, directly or 
 indirectly, through the form of a company with the receiver, in re- 
 spect to subjects or articles they might have to sell or contract 
 about. Upon well-settled principles, this could not be tolerated by 
 the court. The dual trust relation occupied by parties in such 
 situations would forbid such transactions.")
 
 i 205 EQUITABLE KEMEDIES. 394 
 
 § 205. Rights in Relation to Employees. — A receiver au- 
 thorized by the court to continue the business has power 
 to hire necessary employees.^^ In this he is allowed a 
 wide discretion, and the court, which can know much 
 less about the business than the receiver, will not inter- 
 fere unless an abuse is shown.^^ This principle applies 
 with special force to a receiver appointed to look after 
 the business of a railroad. In recent years the courts 
 have in several instances been required to pass upon dis- 
 jmtes between receivers and employees of railroads, and 
 the right of employees to be heard has been expressly af- 
 firmed.^*^ The court will not countenance an unreason- 
 able reduction of the salaries of railroad employees ;^^ 
 
 28 Continental Trust Co. v. Toledo, St. L. & K. C. E. Co., 59 Fed. 
 514; Taylor v. Sweet, 40 Mich. 736. 
 
 29 Continental Trust Co. v. Toledo, St. L. & K. C. E. Co., 59 Fed. 
 514; Taylor v. Sweet, 40 Mich. 736. 
 
 30 Continental Trust Co. v. Toledo, St. L. & K. C. E. Co., 59 Fed. 
 514. 
 
 31 "The first and supreme duty of a court when it engages in the 
 business of operating a railroad is to operate it efficiently and safely. 
 No pains and no reasonable expense are to be spared in the accom- 
 plishment of these ends. Passengers and freight must be trans- 
 ported safely. If passengers are killed or freight lost through the 
 slightest negligence to provide all the means of safety commonly 
 found on first-class roads, the court is morally and legally responsi- 
 ble. An essential and indispensable requisite to the safe and suc- 
 cessful operation of the road is the employment of sober, intelli- 
 gent, experienced, and capable men for that purpose. When a road 
 comes under the management of a court on which the employees are 
 conceded to possess all these qualifications — and that concession is 
 made in the fullest manner here — the court will not, upon light or 
 tiivial grounds, dispense with their services or reduce their wages; 
 and when the schedule of wages in force at the time the court as- 
 sumes the management of the road is the result of a mutual agree- 
 ment between the company and the employees, which has been in 
 force for years, the court will presume the schedule is reasonable 
 and just, and anyone disputing that presumption will be required to 
 overthrow it by satisfactory proof": Ames v. Union Pac. Ey. Co., 
 62 Fed. 7, per Caldwell, Cir. J. Where the wages are not excessive 
 merely because of inability of the road to pay dividends or inter- 
 est: United States Trust Co. v. Omaha & St. L. Ey. Co., 63 Fed. 737,
 
 395 RECEIVER'S MANAGEMENT OF PROPERTY. § 2U5 
 
 but where the reduction is reasonable, and appears to be 
 necessary, the receiver will be authorized to take such 
 tiction.^2 It will generally refuse to interfere with the 
 receiver's action in enforcing rules of long standing, or 
 in dealing with strikers.^^ When a faithful employee 
 lias been injured in the service of the receiver, without 
 any fault of either party, the court may order that he be 
 ])aid wages for the time during which he is actually in- 
 capacitated.^* 
 
 32 It is said that the employees mnst show an abuse of the discre- 
 tion allowed the receiver in order to be given relief. In the follow- 
 ing cases the court held the reductions reasonable, under the circum- 
 stances: Continental Trust Co. v. Toledo, St. L. & K. C. R. Co., 59 
 Fed. 514; Thomas v. Cincinnati, N. O. & T. P. Ry. Co., 62 Fed. 17. 
 
 33 Thus, in Piatt v. Philadelphia & R. R. Co., 65 Fed. 660, the 
 fourt refused to restrain a receiver from enforcing a rule prohibit- 
 ing employees from becoming members of labor unions. In Booth 
 V. Brown, 62 Fed. 794, the court refused to direct a receiver to re- 
 employ men who had engaged in a sympathetic strike. 
 
 34 "To pay the intervener for his lost time is a gratuity, of course, 
 there being no legal liability on the part of the receivers. The view 
 of the circuit judge doubtless was that the receivers, as officers of 
 the court, should be required to act toward their employees as per- 
 sons of ordinary humanity and right feeling would do under similar 
 circumstances toward their employees. If an individual acting for 
 himself, or even as head of the corporation, who has a faithful em- 
 ployee who is injured, although without any fault on the part of the 
 employer or the other employees, the injured employee being him- 
 self free from fault, the employer, if actuated by proper feeling, 
 would feel disposed to at least allow the injured person compensa- 
 tion for his lost time": Thomas v. East Tennessee, V. & G. Ry. 
 Co., 60 Fed. 7, per Newman, D, J. It is certainly a novelty to rest 
 such a doctrine upon humanity. Officers of corporations, and re- 
 ceivers as well, are not permitted to use funds for merely charitable 
 purposes. It is submitted that the true reason for authorizing such 
 action is that a receiver, as well as a corporation, can obtain better 
 service from all of his employees by treating liberally those injured 
 in his service. Wages were allowed injured employees in Missouri 
 Pac. R. Co. V. Texas & P. R. Co., 33 Fed. 701, and upon another 
 application in the same receivership in 41 Fed. 319. To the effect 
 that only faithful employees are entitled to such consideration see 
 Thomas v. East Tennessee, V. & G. Ry. Co., 60 Fed. 7.
 
 i -uu EQUITABLE REMEDIES. 39a 
 
 § 206. Right to Employ Attorneys. — A receiver has a 
 right to employ counsel to advise him as to the manage- 
 ment of the property placed in his hands, and as to his 
 duties in the premises.^'^ The compensation of such 
 attorneys is fixed by the court, and is not governed by 
 agreement between the parties.^® In general, the re- 
 ceiver is allowed to select his own counsel, subject, 
 however, to certain limitations. He is not allowed to 
 select an attorney of one of the parties to the proceed- 
 ing in which he was appointed, when the interests in- 
 
 35 Hubbard v. Camperdown Mills, 25 S. C. 496, 1 S. E. 5. "First, 
 it is for necessary legal assistance that allowance may be made. 
 A trustee has no authority to employ attorneys, at the expense of 
 the estate, to perform the ordinary duties of the trust or office which 
 any ordinarily competent business man is presumed to be capable of 
 performing. Those are his duties, and he is paid for them. It is 
 for services requiring special legal skill that he will be allowed 
 counsel fees. To illustrate: He may have an attorney to obtain 
 for him a necessary order of court to sell a stock of goods, but he 
 can carry out the order as well as the attorney His accept- 
 ance of the trust presupposes that he is capable of performing all 
 such duties, and, if he employs attorneys to advise and assist him 
 in performing them, he must do so at his own expense. So, also, 
 no legal skill is required in insuring and repairing storehouses, and 
 in renting them out and collecting rents. Any business man, also, 
 can assess and pay taxes. If a demand is made upon the receiver, 
 of questionable legality, he may have legal advice and aid in refer- 
 ence to it. If he has a demand upon another, whose legality is 
 questioned, or which requires legal aid to enforce it, he may have 
 an attorney": Henry v. Henry, 103 Ala. 582, 15 South. 916. See, 
 also, Olson v. State Bank, 72 Minn. 320, 75 N. W, 378. 
 
 se "It may be very proper for a receiver to have counsel to aid 
 and advise him concerning legal questions arising in his manage- 
 ment of the estate; but his contract for a term of employment or a 
 rate of compensation, from the very nature of his office, must be 
 subject to the power of the court to conclude the one or to disallow 
 the other. And questions of this nature belong to the court con- 
 trolling and settling the receivership. The right of the attorney to 
 charge the property in court with his fee does not arise from the 
 mere contract with the receivers": International & G. N. R. Co. v. 
 Herndon, 11 Tex. Civ. App. 465, 33 S. W. 377. See, also, Hickey v. 
 Parrot Silver & Copper Co. (Mont.), 79 Pac. 698.
 
 397 EECEIVEE'S MANAGEMENT OF PROPERTY. § 207 
 
 volved are likely to be conflicting.^'^ Where the re- 
 ceiver is not acting adversely to the parties, and there 
 is no conflict, he may select such an attorney.^^ Where 
 a receiver is himself an attorney, he is still entitled to 
 aid of counsel; and if he acts as his own attorney, he 
 is not entitled to any additional compensation there- 
 for.^* 
 
 § 207. Right to Make Repairs, Improvements, etc. — A 
 receiver is appointed to preserve the property pending 
 the litigation, and consequently, he will be authorized 
 to make such repairs as are necessary to keep the prop- 
 erty from deterioration.^^ The extent of repairs will 
 depend largely upon the nature of the business, and 
 whether it is being actively carried on by the receiver. 
 In many matters of minor importance he is allowed to 
 
 37 Veith V. Eess, 60 Neb. 52, 82 N. W. 116; Blair v. St. Louis, 
 H. & K. E. R. Co., 20 Fed. 348. In this last case the court proceeded 
 to say: "It seems that one who accepts the office of receiver under 
 an appointment of this court ought to find some competent attorney 
 of this court, and responsible to it, to aid him with legal advice 
 if needed. If the bar of this circuit is so poor in ability or integrity 
 as to have no member thereof fit for the desired position, then it 
 might be well to seek elsewhere for needed aid. This court is not 
 prepared to make even impliedly such a reflection on the bar of 
 this circuit, nor will it grant a motion which seeks to make one, 
 however able, but who is not a member of this bar, or has just come 
 here with respect to this case mainly, so far as I know, the appointee 
 of this court as attorney and counselor of its officers; nor will it 
 sanction by its appointment the introduction from abroad of anyone, 
 especially a kinsman of the receiver, through the latter 's solicita- 
 tion, under circumstances stated, to fill a position which others long 
 known to the court are, to say the least, equally able to fill." 
 
 38 Smith V. New York Con. Stage Co., 18 Abb. Pr. 419; United 
 States V. Late Corp, of Church etc., 6 Utah, 9, 21 Pac. 516, 
 
 39 Olson V. State Bank, 72 Minn. 320, 75 N. W. 378. 
 
 40 Wallace v. Loomis, 97 U. S. 146, 24 L. ed. 895; Union Trust Co. 
 V. Illinois Midland Ey. Co., 117 U. S. 434, 6 Sup. Ct. 809, 29 L. ed. 
 963; Hoover v, Montclair & Greenwood Lake Ey. Co., 29 N. J. Eq. 
 4; Karn v, Eorer Iron Co., 86 Va, 754, 11 S, E. 431.
 
 S 208 EQUITABLE REMEDIES. 398 
 
 use his discretion.^^ He is sometimes permitted to make 
 improvements and additions, such as the completion of 
 a new line of railroad already begun ;'*2 ^^t generally 
 the court hesitates to grant such authority. The prin- 
 ciple upon which these are allowed is that they are es- 
 sential to the profitable enjoyment of the estate and in- 
 ure to its permanent betterment. If not essential, the 
 court will not speculate upon the probable result.*' 
 Under circumstances showing the great desirability, the 
 court may authorize the receiver to add to an existing 
 line by leasing another.** 
 
 § 208. Right to Lease Property. — The court may au- 
 thorize its receiver to lease certain of the property in 
 
 41 Cowdrey v. Railroad Co., 1 Woods, 336, Fed. Cas. No. 3293. 
 
 42 Wallace v. Loomis, 97 U. S. 146, 24 L. ed. 895; Union Trust Co. 
 V. Illinois Midland Ry. Co., 117 U. S. 434, 6 Sup. Ct. 809, 29 L. ed. 
 963; Kennedy v. St. Paul & P. R. Co., 5 Dill. 519, Fed. Cas. No. 7707; 
 Stanton v. Alabama & C. R. Co., 2 Woods, 506, Fed. Cas. No. 13,296; 
 Jefferson v. Edrington, 53 Ark. 545, 14 S. W. 99. In Wallace v. 
 Loomis, supra, a receiver was appointed "with power to put the 
 road and property in repair, and to complete any uncompleted por- 
 tions thereof, and to procure rolling stock, and to manage and oper- 
 ate the road to the best advantage, so as to prevent the property 
 from further deteriorating, and to save and preserve it for the bene- 
 fit and interest of the first mortgage bondholders, and all others hav- 
 ing an interest therein." 
 
 43 Hand v. Savannah & C. R. Co., 10 S. C. 406. See, also, Pueblo 
 Traction & Electric Co. v. Allison, 30 Colo. 337, 70 Pac. 424. 
 
 44 "A court of equity having in charge the mortgaged property 
 of a railroad company, is authorized to do all acts that may be 
 necessary within its corporate power to preserve the property, and 
 to give to it additional value, not only for the benefit of the lien 
 
 creditors, but also for the benefit of the company Any act, 
 
 it would seem, necessary for the protection and preservation of the 
 property, is a legitimate and proper act, and whatever is manifestly 
 appropriate to such preservation and protection, or to the enhance- 
 ment of the value of the property, not in excess of the powers of 
 the corporation, will always be upheld and enforced by the courts": 
 Gibert v. Washington City, V. M. & G. S. R. Co., 33 Gratt. 586.
 
 399 SALES BY RECEIVER. S 209 
 
 his possession.'*' The court "should act with great cir- 
 cumspection, and see to it that the lease is not given for 
 such a period of time as will needlessly prolong the liti- 
 gation or endanger the rights of any parties thereto. If 
 need be, clauses should be inserted in such leases reserv- 
 ing to the court the power to cancel them whenever it 
 is deemed expedient to do so."*^ If no such right is 
 reserved, the lessee is entitled to damages upon ter- 
 mination.^'^ 
 
 § 209. Sales — In General. — When the interests of the 
 parties demand it, or make it desirable, the court may or- 
 der a receiver to sell the whole or a part of the property. 
 What facts are sufficient to induce the court to make 
 such an order must of necessity vary with the circum- 
 stances of each particular case. When it appears that 
 affairs are rapidly growing worse under the receiver's 
 management, and a majority of those interested believe a 
 sale to be desirable, it may be ordered.^® On the other 
 hand, when the condition of the property is such that an 
 immediate sale will result in great loss, and where the 
 purposes of the receivership have not been accomplished, 
 the order will be refused.^^ An order which directs 
 a receiver to sell all the real estate in his hands has been 
 held sufficient to authorize him to sell any particular 
 piece.^^ 
 
 45 Mercantile Trust Co. v. Missouri, K. & T. Ry. Co., 41 Fed. 8, 11; 
 Farmers' Loan etc. Co. v. Eaton, 114 Fed. 14, 51 C. C. A. 640. 
 
 46 Farmers' Loan etc. Co. v. Eaton, 114 Fed. 14, 51 C. C. A. 640. 
 
 47 Farmers' Loan etc. Co. v. Eaton, 114 Fed. 14, 51 C. C. A. 640. 
 See, also, McAnally v. Glidden, 30 Ind. App. 22, 65 N. E. 291. 
 
 48 First Nat. Bank v. Shedd, 121 U. S. 74, 7 Sup. Ct. 807, 30 L. 
 ed. 877. A sale may be ordered without a right of redemption: 
 Denny v. Broadway Nat. Bank, 118 Ga. 221, 44 S. E. 982. 
 
 49 Bibber-White Co. v. White River Val. Electric E. Co., 110 
 Fed. 473. 
 
 50 Barron v. Mullin, 21 Minn. 374.
 
 I 210 EQUITABLE REMEDIES. 400 
 
 § 210. Sale is Subject to Confirmation. — A sale by a re- 
 ceiver is a judicial sale, and, as a general rule, is subject 
 to confirmation by the court.^^ In many states the pro- 
 ceedings are regulated entirely by statute, and the valid- 
 ity of the sale depends upon a strict adherence to the 
 statutory provisions. "The rule is almost universal 
 that, at a sale by a master or receiver under an order 
 or decree in equity which contemplates a subsequent 
 report and a confirmation of the sale, a bidder becomes a 
 purchaser when the officer announces the sale to him. 
 Thereafter he may be compelled to complete his pur- 
 chase, and pay the price which he offered. "^^ Mere in- 
 adequacy of the price is not, in general, sufficient to au- 
 thorize a refusal of confirmation, unless it be gross.^' 
 And where the consideration is fair, it has been held 
 that confirmation will not be refused merely to let in a 
 
 51 It has been held that such a sale is impliedly subject to confirma- 
 tion or rejection: Patterson v. Patterson Dry Goods Co., 207 Pa. St. 
 252, 56 Atl. 442. 
 
 52 Files V. Brown, 124 Fed. 133, 59 C. C. A. 403, per Sanborn, Cir. J. 
 
 53 Files V. Brown, 124 Fed. 133, 59 C. C. A. 403. The rule is stated 
 by Grey, V. C, in Porch v. Agnew Co, (N. J. Eq.), 57 Atl. 726, as 
 follows: "The rule is settled that mere inadequacy of price is not 
 of itself sufficient ground for refusing confirmation of a judicial sale. 
 The variance between the bids reported and the fair market value 
 must be so great as to bring the court to the opinion that serious 
 injustice would be done by a confirmation— so great, indeed, that 
 the purchaser himself could not fairly expect the court to ratify 
 the sale, which he was notified it must do, in order that his bid 
 should be finally accepted." In this case the property was shown 
 to be worth probably four times the amount of the bids. This was 
 held to be an inadequacy so gross as to warrant a refusal of con- 
 firmation, but the court made a condition that a bond should be 
 filed assuring the presentation of substantially higher bids. Ii» 
 Strickland v. National Salt Co., 88 N. Y. Supp. 323, 43 Misc. Rep. 
 172, confirmation was refused for a sale at a price amounting to 
 less than one-half of the value. After confirmation, the sale becomes 
 final: Thompson v. Brownlie, 25 Ky. Law Rep. 622, 76 S. W. 172.
 
 401 SALES BY RECEIVEE. S$ 211, 212 
 
 higher hid.''^ It has been held that such sales are a\y 
 solute, and that there is no right of redemptioDv"' 
 
 § 211. Personal Property.— The same strictness is not 
 required in regard to sales of personal property. As a 
 general rule, an order should be obtained before any sale 
 of importance is made. When the receiver is authorized 
 to continue the business, certain sales are, of course, au- 
 thorized. In other cases, it is sometimes permissible 
 for the receiver to sell part of the property and obtain 
 subsequent approval from the court. Such sales, when 
 ratified, are as valid as those authorized in the first in- 
 stance.^* 
 
 § 212. Sale is Subject to Existing Liens. — A receiver's sale 
 is subject to liens of those who are not parties to the re- 
 ceivership proceedings.^^ A lienholder has a right of 
 which he cannot be deprived without an opportunity for 
 a day in court A purchaser is bound to take such title 
 as an examination of the proceedings shows that he will 
 get.^* He is bound to examine for himself beforehand to 
 see what title he will obtain by the sale. By statute in 
 New Jersey, sales may be made free from liens in cases 
 where the property is likely to deteriorate and there is a 
 
 54 Rogers v. Rogers Locomotive Co., 62 N, J. Eq. Ill, 50 Atl. 10 
 ("the settled policy of our law has been to encourage bidding and 
 purchases at public sales, and that purchasers making bona fide 
 bids are to be protected in the advantages of a fair purchase"). 
 
 55 Watkins v. Minnesota Thresher Mfg. Co., 41 Minn. 150, 42 N. 
 W. 862. See, also. Mercantile Realty Co. v. Stetson, 120 Iowa, 324, 
 64 N. W. 859 (holding that the court, by its order, may declare that 
 there shall be no right of redemption). 
 
 50 Tobin V. Portland Flouring Mills, 41 Or. 269, 68 Pac. 749, 1108. 
 
 57 Lorch V. Aultman, 75 Ind. 162; Snow v. Winslow, 54 Iowa, 200, 
 6 N. W. 191: In re Coleman, 174 N. Y. 373, 66 N. E. 983. 
 
 58 Campbell v. Parker, 59 N. J. Eq. 342, 45 Atl. 116; Fall & Sock- 
 eye Fish Co. V. Point Roberts F. & C. Co., 24 Wash. 630, 64 Pac. 792, 
 
 Equitable Remedies, Vol. I — 26
 
 55 213, 214 EQUITABLE REMEDIES. 402 
 
 contest either as to the validity or as to the relative 
 standing of the liens.^* In such case the court will 
 hold the proceeds until the rights are determined. 
 
 § 213. Effect of Eeversal of Order Appointing Receiver. — 
 Where, upon appeal from an order appointing a re- 
 ceiver, it is determined that the action of the court in 
 making the appointment and in issuing other orders 
 was beyond its jurisdiction, the sale, of necessity, fails. 
 The purchaser becomes entitled to the return of the 
 price paid, and the property sold must be returned by 
 him.^o 
 
 § 214. Receivers' Certificates — In General. — Receivers 
 of railroad corporations, and perhaps of a few other 
 quasi public corporations, may be authorized to borrow 
 money and to incur indebtedness for the general pur- 
 pose of carrying out the obligation of the corporation 
 to the public.®^ As security, certificates may be issued, 
 
 59 Emmons v. Davis & Dowd Pottery Co. (N. J. Ch.), 16 Atl. 158; 
 Randolph v. Lamed, 27 N. J. Eq. 557. 
 
 60 Lutej V. Clark (Mont.), 77 Pac. 305. ("The decision of this 
 court was to the effect that no sale had been made; in other words, 
 that the pretended sale was without effect, and conveyed no title to 
 the property. Hubbard, having received the money belonging to 
 Lutey Bros, on such void sale, became (on such sale being declared 
 void) an involuntary trustee of Lutey Bros, for the amount of 
 moaey received from them; and likewise Lutey Bros., having re- 
 ceived such goods on such pretended sale, became an involuntary 
 trustee for the mercantile company for the goods which they retained 
 and for the money which they had received from a sale of the 
 portion of the goods disposed of by them.") 
 
 ci Wallace v. Loomis, 97 U. S. 146, 24 L. ed, 895; Union Trust 
 Co. V. Illinois Midland Ry. Co., 117 U. S. 434, 6 Sup. Ct. 809, 29 L. 
 ed. 963; Hoover v. Montclair & Greenwood L. R. Co., 29 N. J. Eq. 
 4. The reasons for the doctrine are well stated in Meyer v. John- 
 ston, 53 Ala. 237:. "But the inconvenience and loss which this [tho 
 deterioration of the property] would inflict upon the population of 
 large districts, coupled with the benefit to parties who perhaps are
 
 403 EECEIVERS' CERTIFICATE. { 215 
 
 to take priority over the mortgage indebtedness. The 
 reason for the rule is that such corporations owe a 
 peculiar duty to the public to keep their properties in 
 operation. Lienholders take their obligations with that 
 understanding, and when they seek to foreclose, they 
 will not be permitted to interfere with this paramount 
 public duty. This reasoning does not apply to purely 
 private corporations, and consequently it is generally 
 held that in receiverships of such corporations no dis- 
 placement of the mortgage priority by certificates is 
 allowable.''^ Some cases have extended the doctrine to 
 other quasi public corporations owing a similar pub- 
 lic duty, but it is in cases of railroads that the doctrine 
 finds its most frequent application.^^ 
 
 § 215. Nature of Certificates.— Receivers' certificates 
 depend for their validity upon the order of the court au- 
 
 powerless to take care of themselves, of preventing the rapid dim- 
 inution of value, and derangement and disorganization that would 
 otherwise result, seem to require, not for the completion of an un- 
 finished work, or the improvement, beyond what is necessary for 
 its preservation, of an existing one, but to keep it up, to conserve 
 it as a railroad property, if the court has been obliged to take pos- 
 session of it, that the court should borrow money for that purpose, 
 .... by causing negotiable certificates of indebtedness to be is- 
 sued, constituting a first lien on the proceeds of the property and re- 
 deemable when it ia sold or disposed of by the court." We shall 
 see later that the certificates are not negotiable in the sense in which 
 that term is used in the law merchant. 
 
 62 Farmers' Loan etc. Co. v. Grape Creek Coal Co., 50 Fed. 481 
 (not allowed in receivership of mining corporation); International 
 Trust Co. V. United Coal Co., 27 Colo. 246, 83 Am. St. Eep. 59, 60 
 Pac. 621; Standley v. Hendrie & Balthoff Mfg. Co., 27 Colo. 331 
 61 Pac. 600; Belknap Sav. Bank v. Lamar Land etc. Co. 28 Colo. 
 326, 64 Pac. 212; Hooper v. Central Trust Co., 81 Md. 559, 32 Atl. 
 505, 29 L. R. A. 262. 
 
 63 Farmers' Loan etc. Co. v. Bankers & M. Tel. Co., 148 N. Y. 315 
 51 Am. St. Eep. 690, 42 N. E. 707, 31 L. R. A. 403 (telegraph com- 
 pany) ; Ellis V. Vernon Ice, Light & Water Co., 86 Tex. 109 23 S. 
 W. 858 (water company).
 
 i 216 EQUITABLE EEMEDIES. 4M 
 
 thorizing them, and they are not negotiable instru- 
 ments.®^ A purchaser is not bound, however, to see to 
 the application of the proceeds.^^ They constitute a lien 
 upon the property prior to the first mortgage bonds.®' 
 As between certificates, priority has been given to those 
 issued to pay for operating expenses over those issued 
 to pay preferred claims.®'^ In order that the priority 
 over the mortgage may be certain, it is necessary that 
 notice of the application for authority be given to the 
 parties interested. "The receiver, and those lending 
 money to him on certificates issued on orders made 
 without prior notice to parties interested, take the risk 
 of the final action of the court in regard to the 
 loans."®* Receivers' certificates, being merely evi- 
 dences of indebtedness, can have no higher character 
 than the debts of which they are representatives.** 
 
 § 216. Purposes for Which Certificates may be Issued. — 
 In general, it may be stated that money may be bor- 
 
 84 Union Trust Co. v. Chicago & Lake H. R. Co., 7 Fed. 513; Stan- 
 ton y. Alabama & C. R. Co., 2 Woods, 506, Fed. Cas. No. 13,296; 
 Turner v. Peoria & S. R. Co., 95 111. 134, 35 Am. Rep. 144. 
 
 65 Union Trust Co, v. Illinois Midland Ry. Co., 117 U. S. 434, 6 
 Sup. Ct. 809, 29 L. ed. 963; Stanton v. Alabama & C. R. Co., 2 
 Woods, 506, Fed. Cas. No. 13,296. 
 
 66 Wallace v. Loomis, 97 U. S. 146, 24 L. ed. 895; Union Trust 
 Co. V. Illinois Midland Ry. Co., 117 U. S. 434, 6 Sup. Ct. 809, 29 L. 
 ed. 963; Miltenberger v. Logansport R. R. Co., 106 U. S. 287, 1 Sup. 
 Ct. 140, 27 L. ed. 117. Certificates have been held prior to a 
 vendor's lien for rails: Royal Trust Co. v. Washburn, B. & Q. R. Co., 
 120 Fed. 11, 57 C. C. A. 3L 
 
 67 Bank of Commerce v. Central Coal & Coke Co., 53 C. C. A. 334, 
 115 Fed. 878. 
 
 68 Union Trust Co. v. Illinois Midland Ry. Co., 117 U. S. 434, 6 
 Sup. Ct. 809, 29 L. ed. 963; Raht v. Atrill, 106 N. Y. 423, 60 Am. 
 Rep. 456, 13 N. E. 282. 
 
 69 Fidelity I. & S. D. Co. v. Shenandoah Co., 42 Fed. 372. To the 
 effect that such certificates are subject to mechanics' liens, see Gor- 
 don y. Newman, 62 Fed. 686, 10 C. C. A. 587.
 
 405 BECEIVEE'S LIABILITY. § 217 
 
 rowed and certificates issued for pui'poses of protect- 
 ing and safely operating the property in the hands of 
 the receiver. In a leading case they were authorized 
 for necessary repairs, for betterments, and for the pay- 
 ment of tax liens J^ They may be issued to pay for nec- 
 essary improvements, such as additions to the line or 
 equipment.'^ They have been authorized to enable the 
 receiver to obtain funds with which to prosecute a suit 
 for the collection of rent of a leased line.'^^ In a num- 
 ber of instances they have been issued in payment of 
 preferred claims, such as claims for labor, materials 
 and supplies furnished a reasonable time before the re- 
 ceivership.^^ In all cases the issuance depends upon 
 the necessity of the matter for which money is desired. 
 For instance, if it is proper for the court to authorize 
 improvements or repairs, it may direct that money be 
 borrowed to pay for them. If, on the other hand, such 
 work is, under the circumstances, not necessary, the 
 application for an order must fail. 
 
 § 217. Liability for Fraud, Negligence, etc. — A receiver 
 is bound to exercise such diligence in the care and man- 
 
 70 Union Trust Co. v. Illinoig Midland Ey. Co., 117 U. S. 434, 6 
 Sup. Ct. 809, 29 L. ed. 963. In the following cases they were au- 
 thorized for necessary repairs: Credit Co., Ltd., v. Arkansas Cent. 
 R. Co., 15 Fed, 46, 5 McCrary, 23; Hoover v. Montclair & Green- 
 wood Lake Ey. Co., 29 N, J. Eq. 4. 
 
 71 Miltenberger v. Logansport E. E. Co., 106 U. S. 287, 1 Sup. Ct. 
 140, 27 L. ed. 117 (issued for purposes of obtaining rolling stock, and 
 for building six miles of road and a bridge, part of the main lino 
 of a road ninety-two miles long). See, however, Bibber-White Co. 
 V. White Eiver Val. E. E. Co., 53 C, C. A. 282, 115 Fed. 786, where 
 an extension of the line would have been speculative and the court 
 held an issuance of certificates for such purpose error. 
 
 72 Town of Vandalia v. St. Louis, V, & T. H. E. Co., 209 111. 73, 
 70 N. E. 662. 
 
 73 Union Trust Co. v. Illinois Midland Ey. Co., 117 U. S. 434, 6 
 Sup. Ct. 809, 29 L. ed. 963; Miltenberger v. Logansport Ey. Co., 
 lUli U. S. 287, 1 Sup. Ct. 140, 27 L. ed. 117.
 
 S 217 EQUITABLE EEMEDIES. 406 
 
 agement of the property as a prudent man would ex- 
 ercise in closing up his own estate. If, through his 
 neglect, a loss occurs, he is personally liable. Thus, 
 where he neglects to collect certain claims which might 
 have been collected, he is liable and will be held for the 
 amount lostJ* In order, to charge him, however, it has 
 been held that the loss must be traced directly to his 
 neglectJ^ He is not an insurer of the property, and is 
 not a guarantor that any particular results will be 
 worked outJ° He must not become interested in any 
 way in the property intrusted to him, and he must not 
 use it for his own advantage. For instance, he must 
 not loan money to himself nor to a firm of which he is 
 a member. '^^ And a mortgage taken by him upon prop- 
 erty held by him as receiver to secure a debt to him per- 
 sonally, is void as against public policy."^^ 
 
 74 In re Angell, 131 Mich. 345, 91 N. W. 611, 9 Detroit Leg. N. 380. 
 
 75 Thus, the fact of allowing animals to remain on a Texas cattle 
 range, where they were lost, and a failure to insure property which 
 afterwards burned, have been held to charge no loss upon the re- 
 ceiver: Hamm v. J. Stone & Sons Livestock Co., 13 Tex. Civ. App. 
 414, 35 S. W. 427. 
 
 76 Ripley v. McGavic, 120 Iowa, 52, 94 N. W. 452. 
 
 77 Eyan v. Morrill, 83 Ky, 352; Cook v. Martin (Ark.), 87 S. W. 
 625, quoting Pom. Eq. Jur., § 1075. 
 
 78 Thompson v. Holladay, 15 Or. 34, 14 Pac. 725.
 
 407 
 
 EECEIVEES; CLAIMS AND ALLOWANCES. 
 
 CHAPTER IX. 
 
 EECEIVEES; CLAIMS AND ALLOWANCES. 
 
 ANALYSIS. 
 
 
 ? 218. 
 
 s§ 
 
 219-237. 
 
 
 § 219. 
 
 
 § 220. 
 
 
 § 221. 
 
 
 § 222. 
 
 
 § 223. 
 
 S8 
 
 224-237. 
 
 
 § 224. 
 
 
 § 225. 
 
 
 § 226. 
 
 
 § 227. 
 
 §§ 
 
 228, 229. 
 
 
 § 229. 
 
 §§ 
 
 230, 23L 
 
 
 § 231. 
 
 
 § 232. 
 
 
 § 233. 
 
 <§ 
 
 234-237. 
 
 
 § 234. 
 
 
 § 235. 
 
 
 S 236. 
 
 
 § 237. 
 
 ii 
 
 238-243. 
 
 
 § 238. 
 
 
 i 239. 
 
 
 § 240. 
 
 
 § 241. 
 
 
 § 242. 
 
 
 § 243. 
 
 
 § 244. 
 
 
 S 245. 
 
 Duties and rights of receiver in regard to claims. 
 
 Priority of claims. 
 
 Taxes. 
 
 Expenses of receivership. 
 
 What are proper expenses. 
 
 Expenses of continuing business. 
 
 Same; liability for torts. 
 
 Claims arising prior to receivership^' 'Preferred 
 
 claims." 
 Statement and rationale of doctrine. 
 Growth of the doctrine. 
 To what receiverships the doctrine applies. 
 Time within which debts must have been contractedL 
 Labor claims. 
 Extent of this class. 
 Claims for supplies. 
 No priority when credit given. 
 
 Claims for repairs — Construction — Beconstruction. 
 Miscellaneous claims. 
 Claims denied priority. 
 Money loaned. 
 Rental of leased lines. 
 Car rentals— Track rentals. 
 Personal injuries. 
 Compensation of receiver. 
 In general. 
 
 Discretion as to amount. 
 Matters considered in determining amount. 
 Effect of revocation or reversal of order appointing 
 
 receiver. 
 Effect of agreement. 
 Effect of adjudication of bankruptcy. 
 Payment of costs when fund not sufficient. 
 Payment of costs where receivership proceedings void.
 
 §5 218, 219 EQUITABLE REMEDIES. 408 
 
 § 218. Duties and Rights of Receiver in Regard to Claims. 
 A receiver is "charged with the duty of carrying into 
 execution the orders of the court, but he is also a cus- 
 todian of property, and has, by virtue of such custody, 
 certain obligations to the parties owning or interested 
 therein.^ Accordingly, he may defend, both in the 
 court appointing him and by appeal, the estate in his 
 possession against all claims which are antagonistic to 
 the rights of both parties to the suit. For instance, 
 he may thus contest a claim for taxes, because, if valid, 
 
 they are superior to the rights of both parties 
 
 He may likewise defend the estate against all claims 
 which are antagonistic to the rights of either party to 
 the suit, subject to the limitation that he may not, in 
 such defense, question any order or decree of the court 
 distributing burdens or apportioning rights between 
 the parties to the suit, or any order or decree resting 
 
 upon the discretion of the court appointing him 
 
 Neither can he question any subsequent order or decree 
 of the court distributing the estate in his hands between 
 the parties to the suit."^ 
 
 § 219. Priority of Claims — Taxes — The appointment 
 of a receiver will not be allowed to defeat the collection 
 of the public revenue. The claim of the state is para- 
 mount to all other claims, and therefore the court will 
 order its receiver to pay such taxes as have been legally 
 assessed upon the property.^ If the receiver believes 
 
 1 Bosworth V. Terminal E. Assn., 174 U. S. 182, 19 Sup. Ct. 625, 43 
 L. ed. 941, per Brewer, J. 
 
 2 Id. As to the receiver's right to appeal, see § 178. 
 
 3 First Nat. Bank v. Ewing, 103 Fed. 168, 43 C. C. A. 150; George 
 V. St. Louis Cable & W. E. Co., 44 Fed. 117; In re United States Car 
 Co., 60 N. J. Eq. 514, 43 Atl. 673; Central Trust Co. v. New York 
 City & N. R. Co., 110 N. Y. 250, 18 N. E. 92, 1 L. E. A. 260. See, 
 also, City of Los Angeles v. Los Angeles City Water Co., 137 Cal. 
 699, 70 Pac. 770 (applying Pol. Code, § 3647). That the property in 
 the receiver's possession will be protected from seizure for taxes, se© 
 ante, § 168.
 
 409 EECEIVERS; CLAIMS AND ALLOWANCES. §5 220, 221 
 
 the legality of the tax to be questionable, he may apply 
 to the court for protection.* 
 
 § 220. Expenses of Receivership. — In general, expenses 
 of the receivership are payable out of the fund in the 
 receiver's hands prior to the payment of a mortgage 
 debt.^ The reasons for such a rule are apparent. The 
 receiver represents the court and acts for the interests 
 of all concerned. Under such circumstances, it would 
 be inequitable to allow a creditor to obtain the benefit 
 of the receivership before the expenses necessarily in- 
 curred are paid. It becomes important, then, to deter- 
 mine what are proper expenses of administration. 
 
 § 221. What are Proper Expenses. — As a general prin- 
 ciple, it may be laid down that any reasonable expense 
 incurred in the proper care, protection and control of 
 the property should be allowed to the receiver as an ex- 
 pense of administration. What is proper in any given 
 case must depend largely upon the particular circum- 
 stances. A receiver is entitled to a reasonable com- 
 pensation, which, in general, is allowed by the court 
 from the fund in his hands. Such a claim is clearly an 
 expense of administration.® We have seen that for 
 many purposes a receiver is authorized to employ an 
 attorney. Compensation for such services is fixed by 
 the court and allowed as a proper expense."^ Costs of 
 
 4 Ex parte Chamberlain, 55 Fed. 704. 
 
 6 McLane v. Placerville & S. V. R. Co., 66 Cal. 606, 6 Pac. 748; 
 Central Trust Co. v. Thunnan, 94 Ga. 735, 20 S. E. 141; State v. Ac- 
 tive Bldg. & Loan Assn., 102 Mo. App. 675, 77 S. W. 171. 
 
 6 See post, §§ 238-243. 
 
 7 See ante, § 206. See, also, Petersburg Sav. & Ins. Co. v. Delhi- 
 torre, 70 Fed. 643, 17 C. C. A. 310, 30 U. S. App. 504; McLane v, 
 Placerville & S. V. R, Co., 66 Cal. 606, 6 Pac. 748; Central Trust Co. 
 V. Thurman, 94 Ga. 735, 20 S. E. 141; State v. Active BMg. i Loan 
 Assn., 102 Mo. App. 675, 77 S. W. 171; Graham v. Carr, 133 N. C. 449,
 
 § 222 EQUITABLE EEMEDIES. 410 
 
 suits begun or defended by the receiver under the di- 
 rection or approval of the court are also included.® 
 
 § 222. Expenses of Continuing Business. — When a re- 
 ceiver is authorized to continue the business, expenses 
 incurred are chargeable upon the fund prior to pre- 
 existing liens.^ As between costs of the litigation it- 
 self and the. expenses incurred in continuing the busi- 
 ness, it would seem that the former should have the 
 priority.^ ° Keceivers' certificates are allowed a prefer- 
 ence over mortgage debts and like claims.^ ^ Any rea- 
 sonable expense incured by authority of the court, ex- 
 press or implied, will be allowed. Owners of property 
 used by a receiver are entitled to preferred payment.^ ^ 
 
 45 S. E. 847. It is only for services connected with the proper man- 
 agement or control of the property that compensation will be al- 
 lowed. Thus, the unsuccessful effort of an attorney to defend his 
 own claim before the master does not entitle him to any additional 
 compensation: In re University Magazine Co., 82 N. Y. Supp. 74, 83 
 App. Div. 641. 
 
 8 Cumberland Lumber Co. v. Clinton Hill L. Co., 64 N. J. Eq. 521, 
 54 Atl. 452; McLane v. Placerville & S. V. R. Co., 66 Cal. 606, 6 Pac. 
 748. 
 
 9 Clark V. Central R. & B. Co., 66 Fed. 803, 14 C. C. A. 112 (coal); 
 Diamond Match Co. v. Taylor, 83 Md. 394, 34 Atl. 1015; Hoover v. 
 Montclair & G. L. E. Co., 29 N. J. Eq. 4 (repairs); Ellis v. Vernon 
 lee. Light & Water Co., 86 Tex. 109, 23 S. W. 858. That the ex- 
 penses are a lien on the corpus as well as on the income, see People's 
 Nat. Bank v. Virginia Textile Co. (Va.), 51 S. E. 155, and many 
 cases cited; cf. infra, § 225, as to "preferred" claims arising before 
 the receivership. Where the receiver continues the business without 
 authority, expenses incurred therein are not entitled to priority: 
 United States Inv. Co. v. Portland Hospital, 40 Or. 523, 67 Pac. 194, 
 64 Pac. 644, 56 L. E. A. 627. 
 
 10 '"'We consider the allowance as compensation to the receiver 
 and his solicitors as part of the taxable costs in this case, and as 
 such is preferred to the receiver's certificates^ and entitled to prior 
 payment": Petersburg Sav. & Ins. Co. v. Dellatorre, 70 Fed. 643, 17 
 C. C. A. 310, 30 U. S. App. 504. 
 
 11 See ante, §§ 214-216. 
 
 12 See Miltenberger v. Logansport, C. & S. W. E. Co., 106 U. S. 286,
 
 411 RECEIVERS; CLAIMS AND ALLOWANCES. § 223 
 
 No priority is allowed, however, to claims for money 
 loaned without authority of the court, although it was 
 intended that the funds so raised should be used for 
 expenses of operation. ^^ 
 
 § 223. Same— Liability for Torts. — Eeceivers who are 
 authorized to continue business and manage property 
 are bound to the same degree of care as the owner would 
 have been under, and are in like manner liable, in their 
 official character, for injuries resulting from the negli- 
 gence of themselves or their agents and employees.^ ^ 
 This principle applies strongly to railway receivers, 
 v,ho are held liable for injuries resulting from negli- 
 gence in the operation of the properties committed to 
 their charge. Claims of this character are treated as 
 expenses of continuing the business, and are allowed 
 priority.^ ^ Liability for statutory penalties depends 
 largely upon the wording of the statutes themselves. It 
 
 1 Sup. Ct. 140, 27 L. ed. 117; Thomas v. Western Car Co., 149 U. S. 
 95, 13 Sup. Ct. 824, 37 L. ed. 663. Where a lease has not been adopted, 
 the owner can claim only the actual value, not the amount stipulated 
 for in the lease: Lane v. Macon & A. Ry. Co., 96 Ga. 630, 24 S. E. 157. 
 
 13 Union Trust Co. v. Illinois Midland Ry. Co., 117 U. S. 434, 6 
 Sup. Ct. 809, 29 L. ed. 963; Maxwell v. Wilmington Dental Mfg. Co., 
 101 Fed. 852. 
 
 14 Fullerton v, Fordyce, 121 Mo. 1, 42 Am. St. Rep. 516, 25 S. W. 
 587. As to liability, see Missouri Pac. R. Co. v. Texas Pac. R. Co., 
 30 Fed. 169; Rouse v. Hornsby, 14 C. C. A. 377, 67 Fed. 219; Central 
 Trust Co. V. Denver & Rio Grande R. Co., 97 Fed. 239, 38 C. C. A. 
 143; Malott v. Shimer, 153 Ind. 35, 74 Am. St. Rep. 278, 54 N. E. 
 101 ; Lyman v. Central Vt. R. Co., 59 Vt. 167, 10 Atl. 346. He is not 
 liable for torts committed before the receivership: Northern Pac. R. 
 Co. V. Hcflin, 27 C. C. A. 460, 83 Fed. 93; see, also, post, § 237. 
 
 15 Knickerbocker v. Benes, 195 111. 434, 63 N. E. 174; Bartlett v. 
 Cicero Light etc. Co., 177 111. 68, 69 Am. St. Rep. 206, 52 N. E. 339, 
 42 L. R. A. 715; St. Louis S. W. Ry. Co, v. Holbrook, 73 Fed. 112, 19 
 C. C. A. 385, 41 U. S. App. 33. To the effect that such a claim should 
 be paid out of the current receipts, see Texas & P. Ry. Co. v. John- 
 son, 76 Tex. 421, 18 Am. St. Rep, 60, 13 S. W. 463.
 
 i 224 EQUITABLE REMEDIES. 412 
 
 has been held that a statute imposing a liability upon a 
 "proprietor, owner, charterer, or hirer" does not affect 
 the receiver.^® On the other hand, a statute inflicting 
 penalties upon "all lessees or other persons owning or 
 operating," is applicable to the receiver.^' In some 
 cases liability has been enforced against a corporation 
 in the hands of a receiver, by reason of such statutes.^* 
 
 § 224. Claims Arising Prior to Receivership — Statement 
 and Rationale of Doctrine. — In cases of railroad receiver- 
 ships, and perhaps in a few other special instances, pri- 
 ority is allowed to certain claims for operating expenses 
 incurred within a reasonable time before the appoint- 
 ment of a receiver. "The controlling principle appears 
 to be that a railroad, having public duties to discharge, 
 must be kept a going concern while in the hands of the 
 court, and that to that end debts due its employees and 
 other current debts incurred for its ordinary operations, 
 which it is not usually practicable to pay in cash, and 
 which are therefore payable on short terms, should be 
 paid as they would have been paid if the court had not 
 taken away from the corporation the control of the rail- 
 road. A cessation of the railroad's operations by fail- 
 ure to pay promptly the operatives or such other debts 
 
 16 Such a statute imposing liability for death does not apply to 
 the receiver: Texas & P. R. Co. v. Collins, 84 Tex. 121, 19 S. W. 365; 
 Yoakum v. Selph, 83 Tex. 607, 19 S. W. 145; Turner v. Cross, 83 Tex. 
 218, 18 S. W. 578; Dillingham v. Blake (Tex. Civ. App.), 32 S. W. 77. 
 A federal statute relating to the transportation of livestock, imposing 
 a penalty upon "any company, owner or custodian of such animals," 
 does not affect the receiver: United States v. Harris, 78 Fed. 290. 
 On the other hand, it has been held that a statute declaring that 
 "every railroad company" shall be liable for injuries to employees, 
 and abolishing the fellow-servant rule, binds the receiver: Eouse v. 
 Harry, 5-5 Kan. 589, 40 Pac. 1007; Hornsby v. Eddy, 56 Fed. 4G1, 
 5 C. C. A. 560. 
 
 17 Brockert v. Central Iowa R. Co., 82 Iowa, 369, 47 N. W. 1026. 
 
 18 Ohio & Miss. R. Co. v. Russell, 115 111. 52, 3 N. E. 561.
 
 413 CLAIMS ARISING PRIOR TO RECEIVERSHIP. i 224 
 
 as railroads must necessarily incur for their ordinary, 
 current operations, must be prevented."^ ^ "Every rail- 
 road mortgagee in accepting his security impliedly 
 agrees that the current debts made in the ordinary 
 course of business shall be paid from the current re- 
 ceipts before he has any claim upon the income."^" It 
 is frequently stated that the right to preference depends 
 upon a diversion to the use of the mortgagees of funds 
 which should properly be applied to the payment of 
 current expenses.^^ It is not necessary, however, that 
 the funds be used to pay the mortgage debt, principal 
 or interest.22 And it would seem that the better rule 
 is that no diversion whatever need be shown.^^ The 
 practical reasons for the rule allowing preferences are 
 as strong in both cases; for it is equally as important 
 to keep the road a going concern where there has, or 
 has not, been such diversion. 
 
 19 Parlange, D. J., in Lackawanna Iron & Coal Co. v. Farmers' Loan 
 & Tr. Co., 79 Fed. 202, 24 C. C. A. 487 (affirmed, 176 U. S. 298, 20 
 Sup. Ct. 363, 44 L. ed. 475). 
 
 20 Waite, C. J., in Fosdick v. Schall, 99 U. S. 235, 25 L. ed. 339, 
 
 21 Quincy, M. & P. R. Co. v. Humphreys, 145 U. S. 82, 12 Sup. Ct. 
 787, 36 L. ed. 632; Kansas Loan & Tr. Co. v. Electric Ry., L. & P. 
 Co., 108 Fed. 702; Rhode Island Locomotive Works v. Continental 
 Trust Co., 108 Fed. 5, 47 C. C. A. 147; Central Trust Co. v. Chatta- 
 nooga S. R. Co., 69 Fed. 295; Cutting v. Tavares, O. & A. R. Co., 61 
 Fed. 150, 9 C. C. A. 401; Finance Co. of Pa. v. Charleston, C. & C. R. 
 Co., 43 Fed. 188; Hammerly v. Mercantile Trust etc. Co., 123 Ala. 596, 
 26 South. 646. It is said in some cases that the burden of proving 
 such diversion is on the party claiming the preference: Kansas Loan 
 & Tr. Co. V. Electric Ry., L. & P. Co., 108 Fed. 702. 
 
 22 Union Trust Co. v. Souther, 107 U. S. 591, 2 Sup. Ct. 295, 27 L. 
 ed. 488. 
 
 23 "It is immaterial, in such caso^ in determining the right to be 
 compensated out of the surplus earnings of the receivership, whether 
 or not during the operation of the railroad by the company there had 
 been a diversion of income for the benefit of the mortgage bond- 
 holders, either in payment of inter-est on mortgage bonds or expendi- 
 tures for permanent improvements upon the property": Virginia & 
 A. Coal Co. V. Central R. & B. Co., 170 U. S. 355, 18 Sup. Ct. 657, 42
 
 § 225 EQUITABLE REMEDIES. 4U 
 
 § 225. Growth of the Doctrine. — Although this doctrine 
 is of comparatively recent origin, it has had a rapid de- 
 velopment, and many of the decisions show a resulting 
 conflict. It was originally said that the doctrine rested 
 upon the implied consent of the mortgagees; that when 
 they applied for a receiver they consented to do equity, 
 and accordingly the court would proceed to adjust the 
 claims.-"* Later, however, this theory was abandoned, 
 and the same priority was allowed in a suit instituted 
 neither by the bondholders nor the trustee,^^ It has 
 been held that no preference can be allowed to claims 
 arising prior to the receivership unless the court, at 
 the time of the appointment, makes an order to that 
 effect ;^^ but the better rule seems to be that such order 
 is not necessary.-'^ By the weight of authority, the pref- 
 erence extends to the income only.^^ By some cases, 
 
 L. ed. 10G8 (affirming Clark v. Central E. R. & B. Co., 66 Fed. 803, 
 14 C. C. A. 112J. See, also, Burnham v. Bowen, 111 U. S. 776, 4 
 Sup Ct. 675, 28 L. ed. 596 ("So far as anything appears on the 
 record, the failure of the company to pay the debt to Bowen was 
 due alone to the fact that the expenses of running the road and 
 preserving the security of the bondholders were greater than the re- 
 ceipts from the business. Under these circumstances, we think the 
 debt was a charge in equity on the continuing income, as well that 
 which came into the hands of the court after the receiver was ap- 
 pointed as that before"); Cleveland, C. & S. Ry. Co. v. Knicker- 
 bocker Trust Co., 86 Fed. 73; Wood v. New York & N. E. E. Co., 70 
 Fed. 741; Finance Co. of Pa. v, Charleston, C. & C. E. Co., 62 Fed. 
 205, 10 C. C. A. 323, 8 U. S. App. 547; Farmers' Loan & Tr. Co. v. 
 Kansas City, W. & N. W. E. Ca, 53 Fed. 182. 
 
 24 Fosdick V. Schall, 99 U. S. 235, 25 L. ed. 339. 
 
 25 Union Trust Co. v. Illinois & M, E. Co., 117 U. S. 434, 6 Sup. 
 Ct. 809, 29 L. ed. 963. 
 
 26 Cutting V. Tavares, 0. & A. E. Co., 61 Fed. 150, 9 C. C. A. 401; 
 Central Trust Co. v. Chattanooga S. E. Co., 69 Fed. 295. 
 
 27 Finance Co. of Pa. v. Charleston, C. & C. E. Co., 62 Fed. 205, 10 
 C. C. A. 323, 8 U. S. App. 547; Wood v. New York & N. K E. Co., 70 
 Fed. 741; Farmers' Loan & Tr. Co. v. Kansas City, W. & N. W. K. 
 Co., 53 Fed. 182. 
 
 28 Gregg V. Metropolitan Trust Co., 197 U. S. 183, 25 Sup, Ct. 415;
 
 415 CLAIMS ARISING PRIOR TO RECEIVERSHIP. § 226 
 
 however, it is held that preferred debts may be paid out 
 of the corpus when the income is insufficient.^^ 
 
 § 226. To What Receiverships the Doctrine Applies. — 
 Most of the cases to which the doctrine has been ap- 
 plied have been cases of railroad receiverships, and 
 the courts have been very slow to extend it. In the 
 absence of statute, it cannot apply to receiverships of 
 corporations owing no special obligation to the public.^** 
 In a few cases preferences have been allowed against 
 mortgage creditors of common carrier cori)orations, 
 
 International Trust Co. v. T. B. Townsend B. & C. Co., 37 C. C. A. 
 396, 95 Fed. 850; Street v. Maryland Cent. R. Co., 59 Fed. 25; Farm- 
 era' & Merchants' Nat. Bank v. Waco Electric Ry. & Lt. Co. (Tex. 
 Civ. App.), 36 S. W. 131. See, also, Mersiek v. Hartford & W. H. 
 Horse R. Co., 76 Conn. 11, 100 Am. St. Rep. 977, 55 Atl. 664 (does 
 not extend to corpus when there has been no diversion of income). 
 
 29 Miltenberger v. Logansport, C. & S. W. R. Co., 106 U. S. 286, 1 
 Sup. Ct. 140, 27 L. ed. 117; Union Trust Co. v. Illinois M. R. Co., 117 
 U. S. 434, 6 Sup. Ct. 809, 29 L. ed. 963 (quoting from the former 
 case); Farmers' Loan & Tr. Co. v. Kansas City, W. & N. W. R. Co., 
 53 Fed. 182. See, also, Clark v. Central R. & B. Co., 66 Fed. 803, 14 
 C. C. A. 112. The very recent case of Gregg v. Metropolitan Trust 
 Co., 197 U. S. 183, 25 Sup. Ct. 415, apparently overrules these cases, 
 at least in part. It was there held that a claim for supplies cannot 
 be given preference over the mortgage, out of the corpus. 
 
 30 Thus, it has been held that there is no right of preference in a 
 receivership of a mining company: Merriam v. Victory Min. Co., 37 
 Or. 321, 56 Pac. 75, 58 Pac. 37, 60 Pac. 997; Farmers' Loan & Tr. Co. 
 V. Grape Creek Coal Co., 50 Fed. 481, 16 L. R. A. 603; nor in a re- 
 ceivership of an iron company: Phillips v. Wise (Tex. Civ. App.), 31 
 S. W. 428. It has been held that where services are rendered a rail- 
 road company in its pursuit of a logging venture, which it undertakes 
 in addition to its railroad, no preference should be allowed: Security 
 Sav. & Tr. Co. v. Goble, N. & P. R. Co., 44 Or. 370, 74 Pac. 919, 75 
 Pac. 697. For a preference arising out of statute, see Hicks v. Con- 
 solidation Coal Co., 77 Md. 86, 25 Atl. 979; Farmers' & Merchants' 
 Nat. Bank v. Waco Electric Ry. & Lt. Co. (Tex. Civ. App.), 36 S. 
 W. 131. In Alabama, the doctrine has been extended independently 
 of statute: Drennen v. Mercantile Tr. & D. Co., 115 Ala. 592, 67 Am. 
 St. Rep. 72, 23 South. 164, 39 L. R. A. 623 (mining company); and 
 in Mississippi: L'Hote v. Boyet (Miss.), 38 South. 1.
 
 S 227 EQUITABLE EEMEDIE3. 416 
 
 such as telephone and telegraph companies ;^^ but in at 
 least one case the doctrine was held inapplicable to 
 steamship companies.^^ In one instance priority was 
 allowed to certain creditors of an irrigation company.^* 
 
 § 227. Time Within Which Dehts must have been Con- 
 tracted. — In order that claims may be allowed a pref- 
 erence under this doctrine, they must have been con- 
 tracted within a reasonable time before the receiver- 
 ship.^^ It is sometimes stated that six months is the 
 limit.^^ This is not borne out, however, by the weight 
 of authority.^^ What is a reasonable time depends 
 
 31 Keelyn v. Carolina etc. Tel. Co., 90 Fed. 29. 
 
 32 Bound V. South Carolina Ey. Co., 50 Fed. 312. In discussing the 
 reasons for the distinction, Simonton, D. J., said: "Eailroads are of 
 public concern, not simply because they benefit the public; the 
 sovereign power has contributed to their construction in a way to 
 which none but the sovereign can contribute, and they are devoted 
 
 to a public use The public use arises when the sovereign 
 
 power is essential to the enterprise, and is exercised because of such 
 use. This consideration does not exist in the case of a steamship 
 company, or of any common carrier by water, or of any warehouse 
 company. There are no sovereign, exclusive privileges granted to 
 this navigation company." 
 
 33 Atlantic Trust Co. v. Woodbridge Canal Co., 79 Fed, 39. 
 
 34 Wood v. New York & N. E. E. Co., 70 Fed. 741; Central Trust 
 Co. v. East Tenn. V. & G, E. Co., 80 Fed. 624, 26 C. C. A. 30; Guar- 
 anty Trust Co. V. Galveston City E. Co., 107 Fed. 311, 46 C. C. A. 
 305; Manchester Locomotive Works v. Truesdale, 44 Minn. 115, 46 
 N. W. 301, 9 L. E. A. 140; Central Trust Co. v. Utah Cent. E. Co., 
 16 Utah, 12, 50 Pac. 813. See, also, cases cited in note 36, post. 
 
 35 National Bank of Augusta v. Carolina, K. & W. E. Co., 63 Fed. 
 25 {dictum). 
 
 36 Burnham v. Bowen, 111 U. S. 776, 4 Sup. Ct. 675, 28 L. ed. 596 
 (claim for coal supplied eleven months before the appointment of a 
 receiver allowed a preference) ; Northern Pac. E. Co. v. Lamont. 
 69 Fed. 23, 16 C. C. A. 364, 32 U. S. App, 480; Farmers' Loan & 
 Trust Co. v. Kansas City, W. & N, W. E. Co., 53 Fed. 182; Central 
 Trust Co. V. St. Louis, A. & T. Ey. Co., 41 Fed. 551; Wood v. New- 
 York & N. E. E. Co., 70 Fed. 741; Cleveland C. & S. Ey. Co. v. Knick- 
 erbocker Trust Co., 86 Fed. 73; New York Guaranty etc. Co. v. Ta-
 
 417 CLAIMS AKISING PEIOR TO RECEIVERSHIP. §S 228, 229 
 
 upon the circumstances of each particular case. The 
 supreme court of the United States hajs given priority 
 to a claim for materials furnished three years before 
 the appointment of a receiver.^^ 
 
 § 228. Labor Claims — Wherever the doctrine is ac- 
 cepted, claims of employees for labor performed within 
 a reasonable time before the receivership are allowed a 
 preference.2^ All the reasons which exist in favor of 
 allowance in any other case exist here. Without em- 
 ployees the road could not run for a moment. 
 
 § 229. Extent of this Class — It is impossible from the 
 present state of the authorities to define exactly who 
 are included within this class. It is sometimes stated 
 that officers and employees of every grade are in- 
 cluded ;^^ but this is not warranted by the authorities. 
 The ordinary clerks and employees are clearly entitled 
 to the preference. The question is more difficult when 
 applied to the officials of the company. It has been 
 held, in accord with principle, that a president of a rail- 
 road corporation is not entitled to any priority for his 
 salary claim. "If persons who give labor and materials 
 were required in every instance to make careful exam- 
 ination into the condition of the company, so as to as- 
 
 coma R. & M. Co., 83 Fed. 365, 27 C. C. A. 550; Central Trust Co. v. 
 Utah Cent. R. Co., 16 Utah, 12, 50 Pac. 813. 
 
 37 Hale V. Frost, 99 U. S. 389, 25 L. ed. 419. 
 
 38 Fosdick V. Schall, 99 U. S. 235, 25 L. ed. 339; Miltenberger ▼. 
 Logansport, C. & S. W. R. Co., 106 U. S. 286, 1 Sup. Ct. 140, 27 L. ed. 
 117; Wood V. New York & N. E. R. Co., 70 Fed. 741; Finance Co. of 
 Pa. V. Charleston, C. & C. R. Co., 62 Fed. 205, 10 C. C. A. 323, 8 
 U. S. App. 547; Douglass v. Cline, 12 Bush, 608; Litzenberg v. Jarvia- 
 Conklin Trust Co., 8 Utah, 15, 28 Pac. 871; Central Trust Co. v. 
 Utah Cent. R. Co., 16 Utah, 12, 50 Pac. 813. 
 
 39 Farmers' Loan & Trust Co. v, Vicksburg & M. R. Co., 33 Fed 
 778. 
 
 Equitable Remedies, Vol. 1—27
 
 § 229 EQUITABLE REMEDIES. 418 
 
 certain its solvent capacity for paying debts, all of its 
 operations might be brought to a standstill. For this 
 reason, persons dealing with a company are encouraged 
 to do so, with the knowledge that the court will see 
 that all such supplies of labor and material given, and 
 not paid for within a reasonable time before the appoint- 
 ment of a receiver, will be provided for by the 
 
 conrt No case can yet be found which extentls 
 
 the equity to the president of the company. He knows 
 exactly its condition. He has full notice of the liens 
 existing. He is not bound to furnish his services a day 
 after his remuneration seems uncertain. He cannot be 
 included among that class of employees who have no 
 means of ascertaining whether a short credit to the com- 
 pany is safe or not."^" An attorney whose services re- 
 sult in a recovery which inures to the benefit of the 
 bondholders is entitled to preference for his fee. The 
 party who takes the benefit of such a service ought to 
 pay for it.*^ Likewise, it has been held that where the 
 court orders the receiver to pay wages due, a claim of 
 an attorney regularly employed is entitled to prefer- 
 ence.^2 But "claims for legal services rendered a rail- 
 road company in the ordinary course of its business un- 
 der special employment, which do not directly con- 
 tribute in some way to the advantage of mortgagees, 
 do not stand upon a plane with the labor of operatives, 
 or the claims of those who furnish materials or supplies 
 to maintain it as a going concern."^^ 
 
 40 National Bank of Augusta v. Carolina, K. & W. R. Co., 63 Fed, 
 25. 
 
 41 Louisville, E. & St. L. K. Co. v. Wilson, 138 U. S. 501, 11 Sup. 
 Ct. 405, 34 L. ed. 1023. 
 
 42 Finance Co. of Pa. v. Charleston, C. & C. E. Co., 52 Fed. 526. 
 
 43 Gregg V. Mercantile Trust Co., 109 Fed, 220, 48 C. C, A, 318; 
 Louisville, E. & St. L. E. Co. v. Wilson, 138 U. S. 501, 11 Sup. Ct. 
 405, 34 L. ed. 1023.
 
 419 CLAIMS ARISING PRIOR TO RECEIVERSHIP. § 230 
 
 § 230. Claims for Supplies. — Another class of claims 
 entitled to preference includes those arising from the 
 sale of supplies necessary for operating purposes."** 
 Such claims clearly come within the reason of the rule. 
 No railroad can run without supplies. Thus, coal be- 
 ing essential to the operation of a railroad, claims for 
 coal are allowed a preference.*^ Some courts are dis- 
 posed to narrow the class so as to include only claims 
 for supplies which are actually necessary to keep the 
 road in operation. *•' Accordingly, claims for advertis- 
 
 44 Union Trust Co. v. Souther, 107 U. S. 591, 2 Sup. Ct. 295, 27 L. 
 €d. 488; Kneeland v. Bass Foundry & Mach. Works, 140 U. S. 592, 
 
 II Sup. Ct. 857, 35 L. ed. 543; Virginia & A. Coal Co. v. Central R. 
 & B. Co., 170 U. S. 355, 18 Sup. Ct. 657, 42 L. ed. 1068; Wood v. New 
 York & N. E. R. Co., 70 Fed. 741; Southern Ry. Co. v. Chapman Jack 
 Co., 54 C. C. A. 598, 117 Fed. 424; Grand Trunk Ry. Co. v. Central 
 Vt. R. Co., 88 Fed. 620; Finance Co. of Pa. v. Charleston, C. & C. R. 
 Co., 52 Fed, 524. A claim for a gear wheel and pinion, necessary 
 parts of a cable railway, was allowed a preference in Central Trust 
 Co. V. Clark, 81 Fed. 269, 26 C. C. A. 397. See, also, New York 
 Guaranty etc. Co. v. Tacoma R. & M. Co., 83 Fed. 365, 27 C. C. A. 
 550. For a statement as to when claims for supplies should be al- 
 lowed a preference, see Southern Ry. Co. v. Ensign Mfg. Co. 54 C. 
 C. A. 591, 117 Fed. 417. 
 
 45 "It was thus settled that, where coal is purchased by a rail- 
 road company for use in operating lines of railway owned and con- 
 trolled by it, in order that they may be continued as a going con- 
 cern, and where it was the expectation of the parties that the coal 
 was to be paid for out of the current earnings, the indebtedness as 
 between the party furnishing the materials and supplies and the 
 holders of bonds secured by a mortgage upon the property, is a 
 charge in equity on the continuing income, as well that which may 
 come into the hands of a court after a receiver has been appointed 
 as that before": Virginia & A. Coal Co. v. Central R. & B. Co., 170 
 U. S. 355, 18 Sup. Ct. 657, 42 L. ed. 1068 (affirming Clark v. 'cen- 
 tral R. R. & B. Co., 66 Fed. 803, 14 C. C. A. 112); Burnham v. Bowen, 
 
 III U. S. 776, 4 Sup. Ct. 675, 28 L. ed. 596; Clark v. Central R. & B. 
 Co., 66 Fed. 803, 14 C. C. A. 112. 
 
 46 In McCornack v. Salem Consol. St. Ry. Co. 34 Or. 543, 56 Pa«. 
 518, a claim for a heater furnished to a street railway company was 
 refused a preference although it resulted in a saving of fuel, on tho 
 ground that it was not necessary in order to keep the company a 
 going concern.
 
 S§ 231, 232 EQUITABLE KEMEDIES. 420 
 
 ing matter furnished have been refused priority.^^ 
 Likewise, a claim for locomotives was denied priority 
 when there was no showing that additional engines 
 were necessary.^^ 
 
 § 231. No Priority When Credit Given. — Priority is de- 
 nied to claims for supplies sold on credit.'*^ In such a 
 case it must be inferred that interest is to be paid on 
 the mortgage indebtedness during the running of the 
 credit. "The claim is quite different from those or- 
 dinary and necessary current expenses of operating a 
 railroad contracted a short time before the receivership, 
 and which, by the sudden action of the court in appoint- 
 ing a receiver, are left unpaid."^*^ 
 
 § 232. Claims for Repairs — Construction — Reconstmction. 
 In the operation of a railroad, repairs are continually 
 necessary. Hence claims for labor performed and sup- 
 plies furnished for ordinary and necessary repairs are 
 allowed a preference.^^ It is held, however, that claims 
 for the construction of the road are not such current 
 
 47 Central Trust Co. v. East Tenn., V. & G. R. Co., 26 C. C. A. 30, 
 80 Fed. 624. 
 
 48 Gregg V. Mercantile Trust Co., 109 Fed. 220, 48 C. C. A. 318. 
 See, also, Rhode Island Locomotive Works v. Continental Trust Co., 
 108 Fed. 5, 47 C. C. A. 147. 
 
 49 Bound V. South Carolina Ry. Co., 7 C. C. A. 322, 58 Fed. 473; 
 Rhode Island Locomotive Works v. Continental Trust Co., 108 Fed. 
 5, 47 C. C. A. 147. This principle prevents priority when there is » 
 conditional sale of rolling stock, title being retained until payment: 
 Huidekeper v. Locomotive Works, 99 U. S. 258, 25 L. ed. 344; Fidel- 
 ity Ins., Trust & S. D. Co. v. Shenandoah Valley R. Co., 86 Va. 1, 19 
 Am. St, Rep. 858, 9 S. E. 759. See, also, Ruhlender v. Chesapeake, O. 
 & S. W. R. Co., 33 C. C. A. 299, 91 Fed. 5. 
 
 60 Bound V. South Carolina Ry. Co., 7 C. C. A. 322, 58 Fed. 473. 
 
 51 Southern Ry. Co. v. Carnegie Steel Co., 176 U. S. 257, 20 Sup. 
 Ct. J47, 44 L. ed. 458 (affirming 76 Fed. 492, 22 C. C. A. 289) ; Gregg 
 V. Mercantile Trust Co., 109 Fed. 220, 48 C C, A. 318; Cleveland, C. & 
 S. Ry. Co. V. Knickerbocker Trust Co., 86 Fed. 73.
 
 421 CLAIMS ARISING PRIOR TO RECEIVERSHIP. S 233 
 
 debts as are entitled to this preference. An "original 
 construction" is that which is necessary to be done be- 
 fore the road can be opened or used.'^^ Such work is 
 clearly not part of the ordinary course of business. 
 Claims for reconstruction are also denied a preference. 
 It is difficult to draw the line between repairs and re- 
 construction. Each case must depend upon its own 
 facts. The extent of the work is the only criterion.'^' 
 
 § 233. Miscellaneous Claims — Preference has been al- 
 lowed to claims for providing, furnishing and maintain- 
 ing waiting-rooms for passengers, office room for ticket 
 agents, and a convenient place for employees to lodge 
 at reduced rates.^* A like priority has been given to 
 
 52 Wood V. Deposit Co., 128 U. S. 421, 9 Sup. Ct. 131, 32 L. ed. 
 472; Cleveland, C. & S. Ry. Co. v. Knickerbocker Trust Co., 86 Fed. 
 73; First Nat. Bank v. Ewing, 103 Fed. 168, 43 C. C. A. 150; Amer- 
 ican L. & T. Co. V. East & West R. Co., 46 Fed. 101; Niles Tool 
 Works Co. V. Louisville, N. A. & C. Ry. Co., 112 Fed. 561, 50 C. C A. 
 390. See, however, Mcllhenny v. Binz, 80 Tex. 1, 26 Am, St. Rep. 
 705, 13 S. W. 655, where the court said: "Ordinarily, when mortgages 
 are issued upon completed roads, it is not contemplated that its in- 
 come is to be applied to the construction of new road. In such cases, 
 debts incurred for such new construction ought to have no claim 
 against the bondholders either as to the corpus or the increase of 
 the property. But when mortgages are executed upon an unfinished 
 road, and they show upon their face that it was contemplated that 
 the work of construction should be prosecuted to completion, and 
 when the mortgages attach to the new road as fast as it is finished, 
 we are of opinion that the new road should be considered a 'useful 
 improvement,' and that, if the road be put into the hands of a re- 
 ceiver before the work and materials are paid for, the holders of the 
 claims for such work and material should be paid from the net in- 
 come of the* road while under the control of the court, if there b« 
 any." 
 
 53 Lackawanna Iron & Coal Co. v. Farmers' L. & T. Co., 176 U. S. 
 298, 20 Sup. Ct. 363, 44 L. ed. 475, affirming 79 Fed. 202, 24 C. C. A. 
 487. 
 
 54 Northern Pac. R. Co. v. Lamont, 69 Fed. 23, 16 C. C. A. 364, 32 
 U. S. App. 480. In this case, Caldwell, Cir. J., tersely argued: "To 
 defeat the preferential character of this claim, the court would have
 
 §§1^34, 235 EQUITABLE REMEDIES. 422 
 
 claims of other railroads for freight and ticket bal- 
 ances.'^ A claim for the use of terminal property has 
 been held entitled to preference. 
 
 56 
 
 § 234. Money Loaned. — No preference is allowed 
 claims for money loaned. This rule is adhered to al- 
 though the money may have been used to pay current 
 running expenses, and may have been loaned expressly 
 for that purpose. The fact that the money is loaned 
 to enable the company to pay interest on its mortgage 
 bonds is likewise immaterial.^^ 
 
 § 235. Rental of Leased Lines. — No priority is allowed 
 for claims for rental under a railroad lease accruing 
 before the appointment of a receiver.^^ A distinction 
 
 to be satisfied that waiting-rooms for passengers and an office for the 
 ticket agents are not essential or necessary, at a town of several 
 thousand population, on the Northern Pacific Eailroad. We are 
 asked, in effect, to hold that passengers on that road, while waiting 
 to take passage on its trains, must endure the rigors of a North Da- 
 kota climate without shelter, and that its ticket agent must be con- 
 tent with an office on the public commons, and carry his tickets in 
 his pocket or his hat." 
 
 55 Miltenberger v. Logansport, C. & S. W. R. Co., 106 U. S. 286, 
 1 Sup. Ct. 140, 27 L. ed. 117; Finance Co. of Pa. v. Charleston, C. & 
 C. E. Co., 62 Fed. 205, 10 C. C. A. 323, 8 U. S. App. 547; Gregg v 
 Mercantile Trust Co., 109 Fed. 220, 48 C. C. A. 318; Monsarrat v. 
 Mercantile Trust Co., 109 Fed. 230, 48 C. C. A. 328. 
 
 56 Manhattan Trust Co. v. Sioux City & N. R. Co., 102 Fed. 710. 
 But see, contra, Gregg v. Mercantile Trust Co., 109 Fed. 220, 48 C. 
 C. A. 318. 
 
 57 Morgan's L. & T. E. & S. S. Co. v. Texas Cent. Ey. Co., 137 U. 
 S. 171, 11 Sup. Ct. 61, 34 L. ed. 625; Southern Dev. Co. v. Farmers' 
 L. & T. Co., 79 Fed. 212, 24 C. C. A. 497; Morgan's La. & T. R. & S. 
 S. Co. V. Farmers' L. & T. Co., 79 Fed, 210, 24 C. C. A. 495; Lacka- 
 wanna Iron & Coal Co. v. Farmers' L. & T. Co., 79 Fed. 202, 24 C. 
 C. A. 487; Illinois Trust Co. v. Dowd, 105 Fed. 123, 44 C. C. A. 389, 
 52 L. E. A. 481; Contracting & Building Co. v. Continental Trust Co., 
 108 Fed. 1, 47 C. C. A. 143; Illinois Trust etc. Bank v. Ottumwa El. 
 Ey., 89 Fed. 235. 
 
 58 New York, P. & O. E. Co. v. New York, L. E. & W. E. Co., 58 
 Fed. 268.
 
 423 CX.AIMS ARISING PRIOR TO RECEIVERSHIP. SS 236, 237 
 
 has been made, however, between claims for rent and 
 claims arising out of an agreement to divide the earn- 
 ings. In the latter case, it has been held that an equity 
 arises which entitles the claimant to a preference.^^ 
 
 § 236. Car Rentals — Track Rentals. — A claim for car 
 rental that has accrued prior to the receivership is not 
 entitled to preference. "The case of a corporation for 
 the manufacture and sale of cars, dealing with a rail- 
 road company, whose road is subject to a mortgage 
 securing outstanding bonds, is very different from that 
 of workmen and employees, or of those who furnish, 
 from day to day, supplies necessary for the maintenance 
 of the railroad. Such a company must be regarded as 
 contracting upon the responsibility of the railroad com- 
 pany, and not in reliance upon the interposition of a 
 court of equity."®* Priority is also denied to claims 
 for track rentals.®^ 
 
 § 237. Personal Injuries — In accord with the general 
 principle, it is well settled that claims for personal in- 
 
 69 Terre Haute & I. R. Co. v. Cox, 102 Fed, 825, 42 C. C. A. 654. 
 The court said: "Two railroad companies, each possessing, and sepa- 
 rately operating, a railroad, found it advisable to unify the operation 
 of their roads. They chose, in the execution of their project, that 
 one company should operate, as one line, both roads. The undertak- 
 ing was, in a certain sense, a joint one; each contributed a part of 
 the moans whereby it should be carried out. It certainly was within 
 legal competency, either that the operating company should pay a 
 strict rental for the use of the other's property, or that the earnings 
 of the road, gross or net, as an entirety — the fruit of the joint en- 
 terprise — should be divided according to the agreement of the par- 
 ties." 
 
 60 Thomas v. Western Car Co., 149 U. S. 95, 13 Sup. Ct. 824, 37 
 L. ed, 663; Grand Trunk Ry. Co. v. Central Vt. R. Co., 90 Fed. 163; 
 Pullman 's Palace-Car Co. v. American Loan & Trust Co., 84 Fed. 18, 
 28 C. C. A. 263 (mileage due under contract for use of Pullman cars). 
 
 61 Louisville & N. E. Co. v. Central Trust Co., 87 Fed. 500, 31 C. 
 C. A. 89.
 
 i 237 EQUITABLE EEMEDIES. 424 
 
 juries arising out of negligence prior to the appoint- 
 ment of a receiver are not entitled to any preference.^^ 
 
 62 The reasons are well stated in Farmers' Loan & Trust Co. ▼. 
 Northern Pac. E. Co., 74 Fed. 431. "But he who has a claim of 
 damages for a negligent act of the railroad company prior to the 
 receivership has no recognized equitable ground for demanding a 
 preferred payment. He has done no act by which either the railroad 
 company or the mortgagee has profited, nor has he surrendered prop- 
 erty which has in any way inured to their benefit. Accidents, it is 
 true, are liable to occur, and do occur in the operation of all railroads, 
 and it is impossible to wholly avoid them; but it cannot be said that 
 they are necessary to the road's existence in the same sense that 
 
 supplies are necessary He who lends his money on railroad 
 
 security undoubtedly docs so with the contingency that the com- 
 pany may require supplies and equipment, and that, if it become 
 necessary for the protection of the security that a court of chancery 
 shall assume control over the mortgaged property, such claims may 
 intervene between him and the paj'ment of his lien. He incurs also 
 the risk of the negligent conduct of the railroad company, so far as 
 it may directly afEect the condition or value of the property. But it 
 cannot be said, and no court has held, that he assumes the risk of 
 the negligence of the railroad company whereby injury results to 
 third persons, and that he, in effect, becomes responsible for the torts 
 which such railroad company may commit against others." In sup- 
 port of the text, see Farmers' Loan & Trust Co. v. Northern Pac. 
 Ey. Co., 79 Fed. 227, 24 C. C. A. 511; St. Louis Trust Co. v. Eiley, 70 
 Fed. 32, 16 C. C. A. 610, 36 U. S. App. 100, 30 L. E. A. 456; Front 
 St. Cable Ey. Co. v. Drake, 84 Fed. 257; Farmers' Loan and Trust 
 Co. V. Nestille, 25 C. C. A. 194, 79 Fed. 748; Veatch v. American 
 Loan & Trust Co., 84 Fed. 274, 28 C. C. A. 3S4; Central Trust Co, v. 
 East Tennessee, V. & G. E. Co., 30 Fed. 895; Central Trust Co. v. 
 Chattanooga etc. E. E. Co., 89 Fed. 388; Farmers' Loan & Trust Co. 
 V. Green Bay etc. E. Co., 45 Fed. 664; Frt.rmers' Loan & Trust Co. 
 v. Detroit etc. E. E. Co., 71 Fed. 29; Davenport v. Alabama & C. E. 
 Co., 2 "Woods, 519, Fed. Cas. No. 3538. A claim for damages for death 
 caused by negligence is not entitled to preference: Veatch v, Amer- 
 ican L. & T. Co., 79 Fed. 471, 25 C. C A. 39; Farmers' Loan & Trust 
 Co. v. Green Bay etc. E. Co., 45 Fed. 604. 
 
 There is a vigorous protest against this line of decisions in Green 
 V. Coast Line E. Co., 97 Ga. 15, 54 Am. St. Ecp. 379, 24 S. E. 814, 33 L. 
 E. A. 806. The court says: "Such corporations incur certain duties 
 and obligations to the public, which adhere firmly to the franchises 
 granted, and cannot be separated from them without legislative con- 
 sent. These duties and obligations, equally with the franchises them-
 
 425 COMPENSATION OF RECEIVER. §§ 238, 239 
 
 § 238. Compensation of Receiver — In General A re- 
 ceiver being an ofiQcer of the court, provision will be 
 made for his compensation. In cases where the court 
 has jurisdiction to make the appointment, the amount 
 will be fixed by the court and ordered paid out of the 
 fund in the receiver's hands. In the absence of statute, 
 no definite rule governing the allowance can be laid 
 down. Much is left to the sound discretion of the 
 court, and what is reasonable must be determined from 
 a consideration of the particular circumstances of each 
 €ase. In some states the matter is largely controlled 
 by statute, but even then, provision is frequently made 
 for additional allowances to be determined by the court 
 in the event of special or extraordinary services.^^ In 
 England, the strict rule as to trustees is not applied to 
 receivers.^* 
 
 § 239. Discretion as to Amount. — In the absence of any 
 statutory regulation, the amount of the compensation 
 
 selves, are matters of fundamental contract between the corporation 
 and the sovereignty creating it, — a contract which is paramount to 
 all subsequent contracts which the corporation is capable of entering 
 into, with any person or for any purpose. By necessary implication, 
 these latter contracts are always qualified and held in check by the 
 former, and in every conflict they must be subordinated to it. The 
 corporation can grant to others no immunity as to its franchises which 
 it could not claim for itself; nor can it in behalf of its creditors, or 
 any of them, free the franchises from .being answerable out of the 
 revenue produced by their exercise, for torts committed in the use 
 of them, whether such torts be committed by the corporation itself 
 or by others using the franchises with its consent or by its permis- 
 flion." 
 
 63 For applications of such a statute, see Spears v. Thomas. 24 
 Ky. Law Rep. 1154, 70 S. W. 1060; Fidelity Nat. Bank's Receiver v. 
 Youtsey, 26 Ky. Law Rep. 340, 81 S. W. 263; United States Trust 
 €o. v. New York, W. S. & B. Ry. Co., 101 N. Y. 478, 5 N. E. 316; Cam- 
 eron V. Groveland Improvement Co., 72 Am. St. Rep. 77, note. 
 
 64 Harris v. Sleep, [1397] 2 Ch. 81.
 
 f 240 EQUITABLE REMEDIES. 42& 
 
 is left to the discretion of the court®' A receiver is en- 
 titled to reasonable pay for his services, and such an 
 amount the court will determine and allow. Upon ap- 
 peal, "the action of the court below is treated as pre- 
 sumptively correct, 'since it has far better means of 
 knowing what is just and reasonable than an appellate 
 court can have.' "^® This discretion is not absolute, how- 
 ever, and if it can be shown that the amount allowed 
 is unreasonable under all the circumstances, the appel- 
 late court will interfere in the interests of justice.®'^ 
 Where the receiver is allowed a monthly stipend, the 
 lower court retains the power to change it, and may,, 
 in its discretion, reduce the amount.®* 
 
 § 240. Matters Considered in Determining Amount. — By 
 what means or in what manner the court will arrive at 
 its determination of what is reasonable, no positive rule 
 can be stated. The court is allowed the largest liberty 
 of inquiry and ascertainment. It may, "in connection 
 with the evidence before it, take into consideration its 
 personal knowledge of the general nature and char- 
 acter and value of the services alleged to have been ren- 
 
 «5 Stuart V. Boulware, 133 U. S. 78, 10 Sup. Ct. 244, 33 L. ed. 568;. 
 Cake V. Mohun, 164 U, S. 311, 17 Sup. Ct. 100, 41 L. ed. 447 (amount 
 sustained on appeal, although if question had been an original one, 
 a lower amount would have been fixed); Wilkinson v. Washington 
 Trust Co., 72 C. C. A. 140, 102 Fed. 28; Culver v. H. R. Allen, Sr. 
 Med. & S. Assn., 206 111. 40, 69 N, E. 53; Heffron v. Rice, 149 111. 216,. 
 41 Am. St. Rep. 271, 36 N. E. 562; Litchenstein v. Dial, 68 Miss. 54, 
 8 South. 272; First Nat. Bank v. Oregon Paper Co., 42 Or, 398, 71 
 Pac. 144, 971. 
 
 86 Stuart V. Boulware, 133 U. S. 78, 10 Sup. Ct. 244, 33 L. ed. 568,. 
 quoting from Trustees v. Greenough, 105 U. S. 527, 537, 26 L. ed. 1157. 
 See, also, Graham v. Carr, 133 N. C. 449, 45 S. E. 847. 
 
 67 In Spears v. Thomas, 24 Ky. Law Rep. 1154, 70 S. W. 1060, com- 
 pensation was reduced from $15,000 to $10,000. See, also, Joralmon 
 V. McPhee, 31 Colo, 40, 76 Pac. 922; Forrester v. Boston & M. ConsoL 
 C. & S. M. Co., 29 Mont. 397, 76 Pac. 211. 
 
 88 In re Angoll, 131 Mich, 345, 91 N. W. 611.
 
 427 COMPENSATION OF RECEIVER. S 241 
 
 dered."^^ But it is only the value of the services a» 
 rendered in the particular class of business that will 
 be considered, not the value of the receiver's services 
 in some other line of business.'^*^ "In receiverships of 
 that character in which the officer is at once receiver 
 and manager of a business, a gross sum may be allowed 
 
 as specific compensation for services In other 
 
 cases, in which the receiver's duties are confined to the 
 receipt and disbursement of money, the court might 
 wisely refer to the rule and rate of a given percentage 
 in analogous cases, when such percentage is regulated 
 by law, and might properly adopt such rule and rate^ 
 if, in its discretion, the same would amount to reason- 
 able compensation."'^^ Where the nature of the services 
 is such that the greater part of the work will necessarily 
 have to be done by the receiver's attorney, the court may 
 consider such fact in determining the amount to 
 award.^^ 
 
 § 241. Effect of Revocation or Reversal of Order Appoint- 
 ing Receiver — "If the order appointing a receiver is re- 
 voked" for want of jurisdiction, or for such cause is re- 
 
 69 Culver V. H. R. Allen, Sr. Med. & S. Assn., 206 111. 40, 69 N. B. 
 53. For a good statement of matters which may be considered, see 
 Ilickey v. Parrot Silver & Copper Co. (Mont.), 79 Pac. 69S. 
 
 TO "It is very possible that his time was worth the munificent sum 
 he demands for it, but the court must consider, not the value of his 
 services in larger and more important affairs, but their value to the 
 modest business of which he consented to take charge": Stearns Paint 
 Mfg. Co. V. Comstock, 121 Iowa, 430, 96 N. W. 869. 
 
 Ti Lichtenstein v. Dial, 68 Miss. 54, 8 South. 272. See First Nat. 
 Bank v. Oregon Paper Co., 42 Or. 398, 71 Pac. 144, 971; Tome v. King, 
 64 Md. 166, 21 Atl. 279. See, also, Jones v. Keen, 115 Mass. 170, 
 where the court intimated that compensation should not be computed 
 upon a percentage basis; Special Bank Commrs, v. Franklin Sav. Inst.,. 
 11 R. I. 557 (same); Tome v. King, 64 Md. 166, 21 Atl. 279 (same). 
 
 72 Silvers v. Merchants' & M. Sav. Fund & Bldg. Assn. (N. J. Eq.),. 
 56 Atl. 294.
 
 i -41 EQUITABLE KEMEUIES. 428 
 
 versed upon appeal, "and he is directed to return the 
 property to the persons entitled thereto, his compen- 
 sation, as a general thing, will not be paid out of the 
 funds placed in his hands. When the appointment of 
 the receiver is upon an application adverse to the de- 
 fendant in the cause, and is without authority of law, 
 the receiver must look for his fees and compensation 
 to the complainant in the suit, upon whose application 
 he was appointed."^^ The amount allowed as compen- 
 sation in such cases is taxed against the unsuccessful 
 party as costs. In some cases, however, the receiver 
 has been allowed to collect his compensation from the 
 fund, the defendant being protected by being awarded 
 a judgment for costs.^^ It has been held that where a 
 receiver is appointed by the consent of the parties, his 
 compensation may be paid out of the fund in his hands, 
 although it may subsequently develop that the court 
 was without jurisdiction of the subject-matter.'^^ And 
 where the appointment was oiiginally valid and within 
 the power of the court, an allowance may be made from 
 the fund, although it may finally be determined that the 
 defendant should prevail."^ ^ 
 
 73 McAnrow v. Martin, 183 111. 467, 56 N. E. 168. See, also, Link 
 Belt Machinery Co. v. Hughes, 195 111. 413, 63 N. E. 186 (affirming 
 95 111. App. 323); Highley v. Deane, 168 111. 266, 48 N. E. 50; Ford 
 V. Gilbert, 42 Or. 528, 71 Pac. 971. See St. Louis, K. & S. E. Co. v. 
 Wear, 135 Mo. 230, 36 S. W. 658, 33 L. K. A. 341, to the effect that 
 when the appointment is in excess of power because the circum- 
 fitanees do not warrant it, compensation should not be deducted from 
 the fund. 
 
 74 Cutter V. Pollock, 7 N. D. 631, 76 N. W. 235. 
 
 75 Ford V. Gilbert, 42 Or. 528, 71 Pac. 971. 
 
 76 Clark V. Brown, 119 Fed. 130, 57 C. C. A. 76; Hopfensack v. 
 Hopfensack, 61 How. Pr. 498 ("The receiver's compensation can- 
 not be made to depend upon the result of the litigation. He is tha 
 officer of the court who takes the property, the right to which is in- 
 volved in dispute, and by order of the court holds it for the benefit 
 of the party who shall ultimately be found to be entitled to it.
 
 429 COMPENSATION 01' KECEIVER. i§ 242, 243 
 
 § 242. Effect of Agreement. — The appointment of a re- 
 ceiver and the fixing of his compensation are judicial 
 acts, and the court is not bound by agreements between 
 individuals as to what it should or should not do.'^^ 
 Where, however, one subsequently appointed receiver 
 agrees with a party to serve without compensation in 
 consideration of an agreement of such party not to ob- 
 ject to his appointment, the court will not permit him 
 to repudiate his contract In such case no compensa- 
 tion will be allowed.'^^ Nor will compensation be al- 
 lowed to a receiver who, being interested in the prop- 
 erty, represents to the court at the time of his appoint- 
 ment that he will make no such claim.'^* And this has 
 been insisted upon even where it has been shown that 
 the w^ork has proved much greater than was antici- 
 pated.*'* 
 
 § 243. Effect of Adjudication of Bankruptcy — The ques- 
 tion has arisen as to the source of the receiver's com- 
 pensation when the debtor goes into bankruptcy subse- 
 quently to the appointment of a receiver. It has been 
 
 .... The property in the hands of the receiver is the fund from 
 which his fees must be paid"). 
 
 77 Lichtenstein v. Dial, 68 Miss. 54, 8 South. 272; Polk v. Johnson 
 (Tnd. App.), 65 N. E. 536; affirmed, 160 Ind. 292, 98 Am. St. Kep. 274, 
 66 N. E. 752, 
 
 78 Polk V. Johnson (Ind. App.), 65 N. E. 536; affirmed, 160 Ind. 
 292, 98 Am. St. Eep. 274, 66 N. E. 752 ("Beyond question one may 
 waive compensation for any labor performed, both before and after 
 completion; and it is a familiar doctrine that one cannot, after per- 
 formance, change his mind, and charge for that which he agreed and 
 undertook to do as a gratuity"). It has been held that an agreement 
 with an intervener not to apply for compensation to the detriment of 
 his claim does not entitle the intervener to the allowance of his 
 claim from commissions allowed from funds which would otherwise 
 have been applied in payment of other claims: Broomfield v. B,oj, 
 120 Fed. 502, 56 C. C. A. 652. 
 
 79 Steel ▼. Holladay, 19 Or. 517, 25 Pac. 77. 
 
 80 Id.
 
 i 244 EQUITABLE EEMEDIES. 430 
 
 held that the receiver is entitled to compensation out 
 of the fund before it is turned over to the trustee in 
 bankruptcy. There is no breach of comity between the 
 state and federal courts in such a practice, for the 
 federal court would, if requested, allow such compensa- 
 tion. Ordinarily, the court appointing a receiver can 
 measure more readily and accurately the amount of his 
 services and expenses in the execution of its own de- 
 cree.^^ 
 
 § 244. Payment of Costs When Fund not Sufficient It 
 
 sometimes happens that the expenses of the receiver- 
 ship are greater than the fund in the hands of the re- 
 €eiver.^2 In such cases the court may ascertain the 
 amount of the deficiency, and it must be borne by the 
 party at whose instance the receiver was appointed. 
 The receiver cannot be justly held to hold and operate 
 the property at his own expense or at that of the court. 
 The party who seeks the aid of the court must see that 
 its officer is protected in his legitimate expenditures. 
 
 81 Mauran v. Crown Carpet Lining Co., 23 R. I. 344, 60 Atl. 387; 
 but see contra, Bloch v. Bloch, 42 Misc. Rep. 278, 86 N. Y. Supp. 1047, 
 holding that wliere suit was begun and a receiver appointed within 
 four months of the adjudication of bankruptcy, the receiver must 
 look for his compensation to the federal court. The right of the 
 state court to settle the account, allowing payments properly made 
 before the adjudication of bankruptcy was recognized. 
 
 82 "If the complainant was not willing to pay the expenses of the 
 receivership it asked for, in the event of the insufficiency of the 
 property to do so, it should not have asked the court to make the 
 -appointment, incur the liabilities, and pledge its faith to their pay- 
 ment. It was the duty of the complainant to keep informed in re- 
 spect to the progress of the receivership, the property, and its proba- 
 ble outcome, and, whenever it became unwilling to further stand 
 good for any deficiency, to ask the court to bring to an end the 
 business it undertook and was conducting on complainant's petition": 
 ■Chapman v. Atlantic Trust Co., 56 C. C. A. 61, 119 Fed. 257. See, also, 
 Ephraim v. Pacific Bank, 129 Cal. 589, 62 Pac. 177; Farmers' Nat 
 liank V. Backus, 74 Minn. 264, 77 N. W. 142.
 
 431 RECEIVERS; PAYMENT OF COSTS. S 2« 
 
 The receiver may enforce his right by action after the 
 receivership proceedings are dismissed.^^ In Oregon, 
 however, it is held that employees cannot hold the par- 
 ties liable for wages due unless terms imposing such 
 liability are made a condition of the appointment or 
 continuance in office of the receiver.^^ 
 
 § 245. Payment of Costs Where Receivership Proceedings 
 
 Void Where an order appointing a receiver is beyond 
 
 the jurisdiction of the court, and is therefore void, the 
 expenses and costs will not be deducted from the fund.^'* 
 In such cases the receiver is left to pursue his remedy 
 against the party at whose instance he was appointed. 
 The same is true when it appears that the property be- 
 
 83 Ephraim v. Pacific Bank, 129 Cal. 589, 62 Pac. 177. 
 
 84 "The appointment of a receiver in a suit to foreclose a railroad 
 mortgage is not a matter of strict right, but rests in the sound judi- 
 cial discretion of the court; and it may, as a condition to issuing 
 the necessary order, impose such terms as may, under the circum- 
 stances of the particular case, appear to be reasonable, and, if not 
 
 acceded to, may refuse to make the order No court is bound 
 
 or ought to engage or continue in the operation of a railroad or any 
 other enterprise without the ability to promptly discharge its obliga- 
 tions; and, unless it can do so, it should keep out, or immediately 
 go out, of the business. But, unless such terms are imposed as a con- 
 dition of the appointment or continuation in oflSce of the receiver, 
 his employees must look to the property in the custody of the court 
 
 and its income for their compensation They are the employees 
 
 and servants of the court, and not of the parties. Their wages are 
 in no sense costs of the litigation; and, although incurred during the 
 progress of the suit, they are not incurred in the suit. They are 
 neither expenses of the plaintiff, nor of the defendant, and are not 
 fees or costs which can be charged against the successful party to 
 the litigation, as is sought to be done in this case": Farmers' Lonu 
 & Trust Co. v. Oregon Pac. R. Co., 31 Or. 237, 65 Am. St. Rep. Sl'2, 
 48 Pac. 706, 38 L. R. A. 424, per Bean, J. 
 
 85 See § 241, relating to the receiver's compensation in such cases, 
 and authorities there cited. See, also, Sullivan v. Gage (Cal.), 79 
 Pac. 537. Compare Beach v. Macon Grocery Co., 125 Fed. 513, 60 C. 
 C. A. 557; Horn v, Bohn, 96 Md. 8, 53 Atl. 576.
 
 i 245 EQUITABLE REMEDIES. 432 
 
 longs to a third person.^® Where, however, the court 
 has jurisdiction, the fact that the defendant finally pre- 
 vails will not deprive the receiver of his right to resort 
 to the fund.*"^ 
 
 86 Howe V. Jones, 66 Iowa, 156, 23 N. W. 376. 
 
 87 Clark V. Brown, 119 Fed. 130, 57 a C. A. 76; Hopfensack v. Hop- 
 fensack, 61 How. Pr. 498.
 
 43S EECEIVEESj REMOVAL AND DISCHAEQE. i 246 
 
 CHAPTER X. 
 
 EEMOYAL AXD DISCHARGE OF RECEIVERa 
 
 ANALYSIS. 
 
 f 246. Eemoval of receiver, 
 § 247. Discharge of receiver. 
 
 § 246. Removal of Receiver — It is within the discre- 
 tion of the court to remove a receiver when it appears 
 that for any reason he is not a proper party to remain 
 in charge. If it is shown that he has not accomplished 
 what he should, with due diligence, have succeeded in 
 doing, or if he is incompetent, he may be removed.^ 
 Any active abuse of trust, such as working for the ad- 
 vancement of private interests at the expense of those 
 of the parties to the proceeding, will warrant such ac- 
 tion.2 Where it appears that his duties as receiver 
 will conflict with his private interests, the court will 
 not hesitate to deprive him of his office.^ It is his duty 
 to stand neutral between the parties. When, there- 
 fore, it appears that there are two hostile parties, both 
 seeking control, the court may remove the representa- 
 tive of one faction and appoint a successor who is not 
 interested with either side.* 
 
 1 In re Angell, 131 Mich. 345, 91 N. W. 611. To the effect that 
 the receiver cannot appeal from the order removing him, see Ellicott 
 V. Warford, 4 Md. 80, 85; also, § 178, ante. 
 
 2 Atkins V. Wabash, St. L. & P. Ey. Co., 29 Fed. 161. 
 
 8 Eichberg v. Wickham, 21 N. Y. Supp. 647 (duty as assignee to ao- 
 count to receiver). 
 
 4 Wood V. Oregon Development Co., 55 Fed. 901 (* ' The feeling which 
 
 hia appointment creates in the party opposed to those asking his 
 
 appointment is such that his position will be an embarrassing one, 
 
 and his usefulness as an officer of the court impaired"); Meier t. 
 
 Equitable Eemedies, Vol. I — ^28
 
 S 246 EQUITABLE KEMEDIES. 434 
 
 It has been held, however, that the mere fact that the 
 receiver was a director and the treasurer of the defend- 
 ant corporation is not alone ground for removal.^ Nor 
 will the fact that he has assisted in promoting a reor- 
 ganization scheme warrant such action;^ nor that in 
 the future his private interests may possibly conflict 
 with his duties^ The receiver of a large railroad cor- 
 poration will not be removed on account of fraudulent 
 luiscouduct of his employees, of which he could know 
 nothing.^ Mere mistakes in management are not suf- 
 ficient ground, unless so gross as to show the receiver 
 to be incompetent.* 
 
 Kailway Co., 5 Dill. 478, Fed. Cas. No. 9395 ("It becomes a duty of 
 the court to see that its powers are exercised on principles of strict 
 neutrality as regards the belligerents; and this can be done in this 
 case by removing the representative of these hostile interests, and 
 appointing a receiver who, in feeling and in conduct, will be strictly 
 neutral and strictly honest"). 
 
 5 Townsend v. Oneonta, C. & R. S. Ry. Co., 83 N. Y. Supp. 1034, 
 86 App. Div. 604, 13 N. Y. Ann. Gas. 402. See ante, §§ 152, 153. 
 
 6 Clark v. Central R. & B. Co., 66 Fed. 16; Fowler v, Jarvis-Conk- 
 lin Mtg. Co., 63 Fed. 883. In the former case, Jackson, Cir. J,, said: 
 "It is not improper for a receiver in cases like the present, to ad- 
 vise, aid, and encourage reorganization schemes, which offer the pros- 
 pect of securing the largest measure of protection to the various in- 
 terests connected with or concerned in the property and assets in the 
 custody of the court, and in the possession of such receiver, for ad- 
 ministration and distribution." In the latter case Lacombe, Cir. J., 
 said: "Nor is it any ground for removal that one of the receivers 
 has become a member of a reorganization committee. Several fed- 
 eral courts have approved of such a practice; and although this court 
 entertains a different opinion, and will require absolute neutrality on 
 the part of its officers, as between conflicting plans of reorganization, 
 it will be sufficient if the receiver, now that some conflict over the 
 plan of reorganization is foreshadowed, promptly resign from mem- 
 bership of the committee." 
 
 7 Land Title & Trust Co. v. Asphalt Co. of America, 120 Fed. 996. 
 
 8 Clarke v. Central R. & B. Co., 66 Fed. 16. 
 
 9 Clarke v. Central R. & B. Co., 66 Fed. 16. In this case the court 
 said: "In the management of these extensive properties it is a great 
 deal easier to look back and find faults than it is to guard in advance 
 agaiuKt mistakes. I see things in this case that I disapprove. Some
 
 435 BECEIVERS; REMOVAL AND DISCHARGE. S 247 
 
 § 247. Discharge of Receiver. — The removal of a re- 
 ceiver merely changes the personnel ; the discharge ter- 
 minates the receivership.^® Both of these matters rest 
 largely within the sound discretion of the court* ^ 
 When the object of the appointment has been fulfilled, 
 the receiver should, in general, be discharged.^ ^ The 
 property should pass, with as little delay as is reason- 
 ably practicable, into the possession and control of the 
 owners; and where the parties unduly prolong the pro- 
 ceedings, the court may consider means of ending the 
 matter.^ ^ It is said that neither entry of judgment in 
 favor of the defendant nor a sale of the property will 
 of itself discharge the receiver. In both cases, however, 
 the court will generally make an order to that effect** 
 
 things have been done that were not the best under the eireumstancea, 
 but, after a careful consideration of the situation, I do not see that 
 the receiver is to be blamed therefor." 
 
 10 For a good statement of the distinction between the terms, see 
 Fagett V. Brooks, 140 Ala. 257, 37 South. 263. 
 
 11 Hoffman v. Bank of Minot, 4 N. D. 473, 61 N. W. 1031. The 
 order of discharge cannot be collaterally attacked: Ferguson r. 
 Toledo, A. A. & N. M. R. Co., 83 N. Y. Supp. 283, 85 App. Div. 352. 
 
 12 Thus, where a receiver is appointed in a stockholder's suit 
 for mismanagement of corporate affairs, the receiver should be dis- 
 charged when a new set of officers is elected and takes charge; 
 Duncan v. George C. Treadwell Co., 82 Hun, 376, 31 N. Y. Supp. 340. 
 Where the amount of the mortgage debt has been definitely fixed by 
 the court, the defendant has been allowed to pay the sum and have 
 the receiver discharged: Milwaukee & M. R. R. Co. v. Soutter, 69 
 TJ. S. 510, 17 L. ed. 900. In general, see Branner v. Webb, 10 Kan. 
 App. 217, 63 Pac. 274. 
 
 13 Taylor v. Philadelphia & R. E. Co., 9 Fed. 1; Piatt v. Phila- 
 delphia & R. R. Co., 65 Fed. 872. 
 
 14 To the effect that his official character remains until he is dis- 
 charged by order of the court, see Erb v. Popritz, 59 Kan. 264, 68 
 Am. St. Rep. 362, 52 Pac. 871. A discharge upon judgment for the 
 defendant is proper, although an appeal may be taken from the 
 judgment: Harris v. Root, 28 Mont. 159, 72 Pac. 429. See, also, 
 Baughman v. Superior Court, 72 Cal. 572, 14 Pac. 207. When the 
 order appointing has been vacated, and no property has come into 
 the receiver's hands, he should be discharged: People v. Bushwick
 
 i 247 EQUITABLE EEMEDIES. 436 
 
 It is said that a receiver should not be discharged upon 
 motion of the complainant upon satisfaction of his 
 claim, against the protest of a non-satisfied creditor, 
 who might be injured thereby.^'' It is held, however, 
 that general creditors are not entitled to notice of the 
 proceedings for discharge.^® "The effect of a discharge 
 of a receiver, and the surrender of jurisdiction over the 
 trust, without any reservation of existing claims, is to 
 release not only the receiver, but also the property, from 
 further liability."^^ 
 
 Chem. Co., 63 Hun, 633, 18 N. T. Supp. 542; affirmea, 133 N. T. 694, 
 31 N. E. 627. 
 
 15 Lenoir v. Linville Imp. Co., 117 N. C. 471, 23 S. E. 442; Foun- 
 tain V. Mills, 111 Ga. 122, 36 S. E. 428. 
 
 16 New York & W. U, Tel. Co. v. Jewett, 115 N. Y. 166, 21 N. E. 
 1036; Eockwell v, Portland Sav, Bank, 31 Or. 431, 50 Pac. 566. 
 
 17 Johnson v. Central Trust Co., 159 Ind. 605, 65 N. E. 1028. To 
 the effect that he cannot be sued after discharge, see ante, § 179. 
 Where, however, the decree of discharge declares that he may de- 
 fend suits, a suit commenced at the time may be continued against 
 Mm: Denver & R. G. R. Co, v. Gunning (Colo.), 80 Pac. 727. For a 
 ease holding that the discharge leaves the property subject to all 
 claims and charges, see Texas Pac. R. Co. v. Johnson, 76 Tex. 421, 
 18 Am. St. Rep. 60, 13 S. W. 463.
 
 tff FOBEION SECEIVESa. i 248 
 
 CHAPTER XI. 
 
 FOREIGN EECEIVERS; ANCILLARY RECEIVERS. 
 
 ANAI.YSI8. 
 
 8 248. General tendency toward recognition of rights of for- 
 
 eign receiver. 
 
 I 249. Bight of foreign receiver to sne outside of jurisdiction 
 of court of appointment is only recognized wher* 
 that court has conferred the power. 
 
 § 250. Eight of foreign receiver to sue not dependent on ex- 
 istence of cause of action in state exercising comitj. 
 
 { 251. Bight of attaching creditors against foreign receiver. 
 
 9 252. Bight of attaching creditors with reference to eitizen- 
 
 ship or residence. 
 8 253. Bights of foreign receivers against subsequent attack- 
 ing creditors. 
 
 8 254. Same; as affected by question of citizenship or resi- 
 
 dence. 
 
 9 255. Actions by foreign receiver not dependent on comity; 
 
 (1) Property rights. 
 I 258. Same; (2) Eights by contract. 
 8 257. Power of court of appointment over receiver and otkar 
 
 parties. 
 18 258-261. Ancillary receivers. 
 8 258. Appointment. 
 8 259. Administration of the fund. 
 8 260. Same; how far conclusive on primarj receiver. 
 8 261. Surrender of fund. 
 
 § 248. General Tendency Toward Rccogfnition of Bights of 
 Foreigfn Receiver — It has often been said that a receiver 
 appointed by a court of equity has no extra-territorial 
 powers.* But while this statement is strictly true, it is 
 apt, under modern conditions, to be misleading. Every 
 reason that would operate, for example, in favor of the 
 recognition of the rights of a foreign corporation would 
 
 I Booth V. Clark, 17 How. 322, 15 L. ed. 164.
 
 { 249 EQUITABLE KEMEDIE3. 438 
 
 operate with equal force in favor of tlie recognition of 
 the foreign receiver. The latter owes his powers to the 
 order appointing him, which is "the charter of his 
 powers," just as the corporation owes its existence to 
 the charter from the legislature. Both are enabled to 
 act outside of the state of their creation solely by the 
 comity of otlier states and nations.^ Those cases which, 
 following dicta in the case of Booth v. Clark, broaJiy 
 lay down the statement that the foreign receiver can- 
 not sue outside of the state of appointment are not in 
 line with the tendency of modern authorities, which 
 is to extend to citizens of or artificial persons created 
 by foreign states the same recognition afforded to the 
 citizens or artificial creatures of the domestic state.^ 
 
 § 249. Right of Foreign Receiver to Sue Outside of Jur- 
 isdiction of Court of Appointment is Only Recognized Where 
 that Court has Conferred the Power. — ^There is no doubt 
 
 2 Bank of AugTista v. Earle, 13 Pet. 519, 10 L. ed. 274. The re- 
 ceiver's decree of appointment is called the "charter of his powers" 
 in Schultz v. Phenix Ins. Co., 77 Fed. 375, 387. 
 
 3 Gilman v. Ketcham, 84 Wis. 60, 36 Am. St. Eep. 899, 54 
 N. W. 393, 23 L. E. A. 52, where Pinney, J., says: "The tendency 
 of modem adjudications is in favor of a liberal extension of inter- 
 state comity, and against a narrow and provincial policy, which 
 would deny proper effect to judicial proceedings of sister states under 
 their statutes and rights claimed under them, simply because, 
 technically, they are foreign and not domestic"; Boulware v. Davis, 
 90 Ala. 207, 8 South. 84, 9 L. R. A. €01; Hurd v. City of Elizabeth, 
 41 N. J. L. 1; Tompkins v. Blakey, 70 N. H. 584, 49 Atl. 111. In 
 Lewis V. American Naval Stores Co., 119 Fed. 391, 397, the court says: 
 "The constant tendency of the courts is toward a more enlarged and 
 liberal policy— the recognition of the receiver's right to the posses- 
 sion of the property embraced by the decree appointing him, although 
 situated without the jurisdiction of the court making the appoint- 
 ment This tendency is so pronounced and so well sustained 
 
 by authority that it is probable that the doctrine ultimately to be 
 established will give to receivers the same right of action in all 
 the states of the Union with which they are invested in the jurisdic- 
 tion in which they are appointed."
 
 439 FOKEIGN EECEIVERS. § 249 
 
 that the prevailing rule in America accords the foreign 
 receiver the right to sue outside of the appointing jur- 
 isdiction where that right has been conferred upon him 
 in the state of his appointment, when the statutes or 
 public policy of the state do not forbid such suit, and 
 when the rights of domestic creditors, or foreign cred- 
 itors who have prior attachments are not affected.'' Of 
 
 4 In Hurd v. City of Elizabeth, 41 N. J. L. 1, the court, by Beasley, 
 C. J., after quoting the general rule laid down in High on Receivers, § 
 239, that the foreign receiver cannot sue, says: "There are certainly 
 dicta that go even to that exent, so that text-writers seem to have felt 
 themselves warranted in declaring that the powers of an officer of this 
 kind are strictly circumscribed by the jurisdictional limits of the 
 tribunal from which he derives his existence, and that he will 
 not be recognized as a suitor outside of such limits. But I think the 
 more correct definition of the legal rule would be that a receiver 
 cannot sue, or otherwise exercise his functions, in a foreign juris- 
 diction whenever such acts, if sanctioned, would interfere with the 
 policy established by law in such foreign jurisdiction. There seems 
 
 to be no reason why this should not be the accepted principle 
 
 The question thus raised has nothing to do with that other inquiry 
 that is frequently discussed in the books, whether a receiver at 
 common law is in point of fact clothed with the power to sue in a 
 
 foreign jurisdiction Conceding that the ofiicer is invested 
 
 with this fullness of authority, it would appear to be in harmony 
 with those legal principles by which the intercourse of foreign states 
 is regulated, for every government, when its tribunals are appealed 
 to, to render every assistance in its power in furtherance of the 
 execution of such authority, except in those cases when, by so doing, 
 its own policy would be displaced or the rights of its own citizens 
 
 invaded or impaired To sanction such a plea would be to 
 
 frustrate, as far as possible, the foreign procedure, simply for the 
 purpose of doing so, the single result being that a court would be 
 baffled, and perhaps prevented from doing justice. Such ought not 
 to be the legal attitude of governments towards each other": Gray- 
 don v. Church, 7 Mich. 36; Hale v. Hardon, 95 Fed. 747, 37 C. C. A. 
 240; Tompkins y Blakey, 70 N. H. 584, 49 Atl. Ill; National T. Co. 
 V. Miller, 33 N. J. Eq. 155; Sobernheimer v. Wheeler, 45 N. J. Eq. 
 614, 18 Atl. 234; Bidlack v. Mason, 26 N, J. Eq. 230; Howarth v. 
 Angle, 162 N. Y. 179, 56 N. E. 489, 47 L. R. A. 725; Lycoming Ins. 
 Co. V. Wright, 55 Vt. 526; Parker v. Stoughton Mill Co., 91 Wis. 174,, 
 51 Am. St. Rep. 881, 64 N. W. 751; Rorrrrs v. Riley, 80 Fed. 759; 
 Barley v. Gittings, 15 App. Dec. 427; and cases cited below in sec- 
 tions on Rights of Attaching Creditors. The foreign receiver may
 
 fi 249 EQUITABLE EEMEDIES. 440 
 
 course, a preliminary question in regard to his capacity 
 is always to be answered: Has he been authorized by 
 the appointing jurisdiction to sue? Such power should 
 appear from his pleading; as that he has been expressly 
 authorized to sue,^ or that he is an assignee vested with 
 
 even sue to recover real property, or to foreclose a mortgage on such 
 property: Lewis v. Clark, 129 Fed. 570, 64 C. C. A. 138; Small v. 
 Smith, 14 S. D. 621, 86 Am. St. Eep. 808, 86 N. W. 649. Many cases, 
 however, go to the length of denying the foreign receiver the right 
 to sue, even where no rights of creditors or others intervene: Holmes 
 v. Sherwood, 16 Fed. 725, 3 McCrary, 405; Hazard v. Durant, 19 Fed. 
 471, 476; Commercial Nat. Bank v. Motherwell Iron & Steel Co., 95 
 Tenn. 172, 31 S. W. 1002, 29 L. E. A. 164; Moreau v. Du Bellet (Tex. 
 Civ. App.), 27 S. W. 503; Moseby v. Burrow, 32 Tex. 402. See, also, 
 the recent case, Great Western Min. & Mfg. Co. v. Harris (May 29, 
 1905), 25 Sup. Ct. 770. These cases all rest on the dicta in Booth v. 
 Clark, supra, which, it is submitted, decided no such point. The for- 
 eign receiver's right rests on a somewhat more substantial ground 
 than "by favor of courtesy" (Boulware v. Davis, 90 Ala. 207, 8 
 South. 84, 9 L. K. A. 601), nor should it be denied because the court in 
 its "discretion" thinks that the cause of action is inequitable: Wyman 
 V. Eaton, 107 Iowa, 217, 70 Am. St. Eep. 193, 77 N. W. 865, 43 L. K. 
 A. 695. "Comity is neither matter of absolute obligation nor of mere 
 courtesy and good-will. It is the recognition which one nation allows 
 within its territory to the legislative, executive, or judicial acts of an- 
 other nation, having due regard both to international duty and con- 
 venience, and to the rights of its own citizens or of other persons who 
 are under the protection of the laws": Hilton v. Guyot, 159 U. S. 
 113, 16 Sup. Ct. 139, 40 L. ed. 95. It must be remembered that 
 the recognition of the foreign act is made by the political branch 
 of the government, the courts merely declaring the state's mandates. 
 €ee Wyman v. Kimberly Clark Co., 93 Wis. 554, 67 N. W. 932, for a 
 proper conception of "comity." Where the corporation for which 
 the receiver has been appointed has violated the laws of the state, 
 the courts will not allow the receiver appointed in the state of the 
 corporation's domicile to sue: Parker v. Lamb, 99 Iowa, 265, 68 N. 
 W. 686, 34 L. E. A. 704. Compare article on Extra-territorial Juris- 
 diction of Eeceivers in 22 Am. L. Eeg. 289 (1883), by Adelbert Ham- 
 ilton, with article on same subject, 58 Cent. L. J. 284 (1903), to illus- 
 trate development of law on the subject of rights of foreign receiv- 
 ers. 
 
 5 Swing V. White Eiver L. Co., 91 Wis. 517, 65 N. W. 174 (receiver 
 must aver right to sue, unless he is assignee); Castleman v. Temple- 
 man, 87 Md. 546, 67 Am. St. Eep. 363, 40 Atl. 275, 41 L. E. A. 367.
 
 441 FOREIGN RECEIVERS. § 250 
 
 an interest which would enable him to maintain an ac- 
 tion,® or that the defendant has recognized his rightJ 
 The question is therefore often complicated by local 
 rules of practice and pleading. Thus, in states where 
 the assignee cannot sue at law on an assigned chose in 
 action in his own name, a receiver to whom such chose 
 in action has been assigned by judicial proceedings in 
 the state of his appointment cannot maintain an action 
 at law on such assigned claim.* Generally the rules as 
 to capacity of parties depend upon the lex fori.^ 
 
 § 250. Right of Foreign Receiver to Sue not Dependent 
 
 on Existence of Cause of Action in State Exercising Comity 
 
 It is no objection, however, to the right of a foreign re- 
 ceiver to maintain an action in the local courts that 
 the cause of action is unknown to the law administered 
 in those courts. "It is not necessary that the process to 
 enforce the liability in question," says Vann, J., "should 
 be that required by statute in this state in the case of 
 domestic corporations, as that would be frequently im- 
 possible and would withhold the right of comity al- 
 together. It is sufficient if the method of procedure in 
 our courts is such that no injustice is done to the de- 
 
 6 See infra, Action by Receivers not Dependent on Comity; (1) 
 Property Rights, § 255. 
 
 7 See infra, Actions by Receivers not Dependent on Comity; (2) 
 Rights by Contract, § 256. 
 
 8 Murtey v. Allen, 71 Vt. 377, 76 Am. St. Rep. 779, 45 Atl. 752; 
 King V. Cochran, 72 Vt. 107, 47 Atl. 394. 
 
 9 Minor on Conflict of Laws, § 206, to the effect that all these 
 matters are determined by the lex fori. An ordinary foreign re- 
 ceiver cannot sue in his own name: Wilson v. Welch, 157 Mass. 77, 
 31 N. E. 712; even though authorized to do so by the court of ap- 
 pointment: Hayward v. Leeson, 176 Mass. 310, 57 N. E. 656, 49 L. 
 R. A. 725. See, also, Rogers v. Haines, 96 Ala. 586, 11 South. 651, 
 103 Ala. 198, 15 South. 606.
 
 ii 251,252 EQUITABLE EEMEDIES. 442 
 
 fendant or to any citizen of this state, and the estab- 
 lished policy of the state is not interfered with."^" 
 
 § 251. Rights of Attaching Creditors Against Foreign Re- 
 ceivers. — In accordance with these principles it is well 
 settled that courts will permit receivers appointed by 
 tribunals in foreign jurisdictions (in whom, strictly 
 speaking, no rights are vested in things outside of the 
 state of appointment) to recover possession of per- 
 sonal property or to enforce the collection of choses in 
 action, even from its own citizens, where no rights of 
 third persons have intervened.^ ^ Some of the cases 
 seem to place this right of the foreign receiver to sue 
 for choses in action upon the ground that the situs of 
 the chose in action is at the domicile of the creditor, and 
 therefore he becomes vested with the property by as- 
 signment at the domicile,^ 2 but this principle could not 
 explain his right to sue for tangible and immovable 
 things in the second jurisdiction, and it is submitted 
 that the better ground upon which these decisions rest 
 is the right of comity. The real reason is, as was said 
 by the New Hampshire court: "The question is not 
 strictly one of law. It is, rather, one of courteous 
 treatment of an officer of a sister state."^^ 
 
 § 252. Right of Attaching Creditors with Reference to 
 Citizenship or Residence. — Where the rights of third per- 
 sons, citizens of the state in which the foreign receiver 
 sues, have attached to property, or to a fund, before the 
 
 10 Howarth v. Angle, 162 N. Y. 179, 56 N. E. 489, 47 L. E. A. 725, 
 730. 
 
 11 See cases cited in note 4, supra. 
 
 12 Gilbert v. Hewetson, 79 Minn. 326, 79 Am. St. Eep. 486, 82 N. 
 W. 655; Parker v, Stoughton Mill Co., 91 Wis. 174, 51 Am. St. Eep. 
 881, 64 N. W. 751. 
 
 13 Tompkins v. Blakey, 70 N. H. 584, 49 Atl. 111.
 
 443 FOREIGN RECEIVERS. S 252 
 
 foreign receiver has been appointed, it is generally held 
 that such rights will prevail, and that the rule of comity 
 does not extend to aiding the foreign receiver in collect- 
 ing the fund or property so as to impair such vested 
 rights.^* The cases have usually had to deal with the 
 rights of attaching creditors who were also citizens or 
 residents of the state in which the attachment was 
 levied, but where the question has been raised it has 
 been held that a bona fide attaching creditor, even 
 though he be not a citizen of the state, will be pro- 
 tected in his lien or possession as against a foreign re- 
 ceiver subsequently appointed.^ ^ It is submitted that 
 this doctrine is not only equitable, but also that no 
 distinction can be permitted between citizens and other 
 
 14 Catlin V. Wilcox Silver Plate Co., 123 Ind. 477, 18 Am. St. Eep. 
 338, 24 N. E. 250, 8 L. E. A. 62; Solis v. Blank, 199 Pa. St. 600, 49 
 Atl. 302; Frowert v. Blank, 205 Pa. St. 299, 54 Atl. 1000; Southern 
 B. & L. Assn. V. Price, 88 Md. 155, 41 Atl. 53, 42 L. E. A. 206; Taylor 
 V. Columbian Ins. Co., 14 Allen, 353; Ward v. Connecticut Pipe Mfg. 
 Co., 71 Conn. 345, 71 Am. St. Eep. 207, 41 Atl. 1057, 42 L. E. A. 
 706; Ward v. Pacific Mut. Life Ins. Co., 135 Cal. 235, 67 Pac. 124; 
 Zacher v. Fidelity T. & S. V. Co., 106 Fed. 593, 45 CCA. 480; Hunt 
 V. Columbian Ins. Co., 55 Me. 290, 92 Am. Dec. 592; Booth v. Clark, 
 
 17 How. 322, 15 L. ed. 164. Even where no rights by way of lien 
 appear eourts will not exercise comity to the prejudice of other 
 creditors: Olney v. Tanner, 10 Fed. 101; Baldwin v. Hosmer, 101 
 Mich. 119, 59 N. W. 432, 25 L. E. A. 739; Holbrook v. Ford, 153 111. 
 633, 46 Am. St. Eep. 917, 39 N. E. 109, 27 L. E. A. 324. In the 
 case of Falk v, Janes, 49 N. J. Eq. 484, 23 Atl. 813, a foreign re- 
 ceiver appointed on a creditor's bill was held entitled to maintain 
 the action even to the prejudice of a citizen of New Jersey, where 
 lie prosecuted the action solely for the benefit of another citizen of 
 New Jersey. 
 
 15 Ward V. Connecticut Pipe Mfg. Co., 71 Conn. 345, 41 Atl. 1057, 
 71 Am. St. Eep. 207, 42 L. E. A. 706; Linville v. Hadden, 88 Md. 594, 
 41 Atl. 1097, 43 L. E. A. 222; Solis v. Blank, 199 Pa. St. 600, 49 Atl. 
 302; Catlin v. Wilcox Silver Plate Co., 123 Ind. 477, 24 N. E. 250, 
 
 18 Am. St. Eep. 338, 8 L. E. A. 62. That the same protection is often 
 extended to such creditors, attaching after the appointment of the 
 foreign receiver, see Gerding v. East Tennessee L. Co., 185 Mass. 380^ 
 70 N. E. 206, and cases cited; cf. next section.
 
 ( 253 EQUITABLE REMEDIES. 444 
 
 persons under the equal protection of the law clause in 
 the federal constitution. Even where the attaching 
 creditor is a resident or citizen of the state where the 
 receiver is appointed, there would seem to be no reason 
 on principle why he should not be allowed to retain his 
 preference by the courts of the state of the attachment,^® 
 unless he has been enjoined by the state of his citizen- 
 ship in the order appointing a receiver from maintain- 
 ing the attachment proceeding. If such injunction has 
 been issued — and it is well settled that the appointing 
 court may enjoin those subject to its jurisdiction from 
 prosecuting attachments in foreign states — the court of 
 the state in which the attachment was issued would 
 doubtless have power to suspend proceedings until the 
 court in w^hich the receiver w^as appointed could en- 
 force its orders, and, in a spirit of comity, such would 
 probably be the procedure.^ ^ 
 
 § 253. Rights of Foreign Receiver Against Subsequent At- 
 taching Creditors. — Difficult questions often arise where 
 the attaching creditors in the local state have attached 
 after the appointment of the receiver in the domiciliary 
 state. If the receiver has obtained possession, his pos- 
 session should be protected. His possession is in the 
 nature of a property right, and is held so to be almost 
 universally.^^ But where the receiver has not yet col- 
 
 16 Hibernia National Bank v. Lacombe, 84 N. Y. 367, 38 Am. Rep. 
 518. 
 
 17 Avery v. Boston Safe Deposit & T. Co., 72 Fed. 700. In Ameri- 
 can "Waterworks Co. v. Farmers' L. & T, Co., 20 Colo. 203, 46 Am. 
 St. Rep. 285, 37 Pac. 269, 25 L. R. A. 338, the court, on motion of 
 a foreign receiver, granted a motion to dismiss a writ of error 
 brought by the corporation's oflScers, where the court of appointment 
 had enjoined them from taking such proceedings. 
 
 18 Chicago etc. Ry. v. Keokuk etc. Packet Co., 108 111. 317, 43 
 Am. Rep. 557, where the receiver appointed in the foreign state 
 brought into Illinois a vessel which was attached by local creditors.
 
 445 FOREIGN EECEIVEES. § 253 
 
 lected tlie fund or taken the property into his posses- 
 sion, and creditors or others have obtained rights or 
 liens upon the property or fund in the state where it is 
 situated, some distinctions must be observed. If the 
 appointment of the receiver is involuntary, especially 
 in aid of a statutory judicial proceeding, the prevailing 
 doctrine seems to be that, where the rights of domestic 
 creditors are involved, the assignment will not be rec- 
 ognized outside of the jurisdiction of appointment.^* 
 But if the appointment be by voluntary act, as on the 
 dissolution of a corporation on its own petition, or if a 
 common-law assignment be made to the receiver, the as- 
 signment will be recognized elsewhere.^^ In the latter 
 case, therefore, if the foreign receiver's title be rec- 
 
 The foreign receiver was allowed to replevy the vessel: Eobertson 
 V. Staed, 135 Mo. 135, 58 Am. St. Kep. 569, 36 S. W. 610, 33 L. K. 
 A. 203, where the receiver was appointed in Mexico; Osgood v, Ma- 
 guire, 61 N. Y. 524; Merchants' etc. Bank v. McLeod, 38 Ohio St. 
 174; Bagby v. Atlantic etc. E. E. Co., 86 Pa. St. 291; Pond v. Cooke, 
 45 Conn. 126, 29 Am. Eep. 668; Merchants' Nat. Bank v. Penn. 
 Steel Co., 57 N. J. L. 336, 30 Atl. 545. The case of Humphreys 
 V. Hopkins, 81 Cal. 551, 15 Am. St. Eep. 176, 22 Pac. 892, 6 L. R. 
 A. 792, is out of the line of authority, 
 
 19 Security Trust Co. v. Dodd, Mead & Co., 173 U. S. 624, 19 Sup. 
 Ct. 545, 43 L, ed. 835; Cole v. Cunningham, 133 U. S. 107, 129, 10 Sup. 
 Ct. 269, 33 L. ed, 538; Catlin v. Wilcox Silver Plate Co., 123 Ind. 
 477, 18 Am. St. Eep. 338, 24 N. E. 250, 8 L. E. A. 62; Gray v. Cov- 
 ert, 25 Ind. App. 561, 81 Am. St. Eep. 117, 58 N. E. 731; Ward v. 
 Connecticut Pipe Co., 71 Conn. 345, 71 Am. St. Eep. 207, 41 Atl. 1057, 
 42 L. E. A. 706; Gilbert v. Hewetson, 79 Minn. 326, 79 Am. St, Eep, 
 486, 82 N, W, 655. In Eeynolds v. Adden, 136 U. S. 348, 354, 10 
 Sup. Ct, 843, 34 L. ed. 360, the supreme court of the United States 
 eays: "When the transfer of a debtor's property is the result of a 
 judicial proceeding, there is no provision of the constitution which 
 requires the courts of another state to carry it into effect, and as 
 a general rule no state court will do this to the prejudice of the 
 citizens of its own state." See, also, Zacher v. Fidelity Trust etc. 
 Co., 109 Ky. 441, 59 S. W. 493; Zacher v. Fidelity Trust etc. Co., 106 
 Fed. 593, 45 C, C. A. 480. 
 
 20 In addition to cases cited in last note, see note in 23 L. E. A. 
 33.
 
 •§ •:r)4 EQUITABLE KEMEDIE3. 446 
 
 ognized, those who attach after such assignment have 
 nothing to levy upon, and the receiver's title will pre- 
 vail over the attaching creditor's.^^ This is almost uni- 
 formly held to be the law in cases where the attaching 
 creditors are not domestic creditors, but many states pro- 
 tect the domestic creditor, though his lien be subsequent 
 to the assignment, without recognizing the distinction 
 between voluntary and involuntary assignments.^^ If 
 the assignment and appointment were involuntary, it is 
 uniformly held that the rights of the attaching creditors 
 will prevail.^* 
 
 § 254. Same; As Affected by Questions of Citizenship or 
 Residence. — In some of the cases the attaching creditor 
 has been a citizen of the state in which the foreign re- 
 ceiver was appointed, and notwithstanding the appoint- 
 ment of the receiver in the creditor's home state, has at- 
 tached property in a foreign state. If he had been en- 
 joined from so proceeding, or had been a party to the 
 
 21 "A voluntary conveyance of goods made by the owner at his 
 domicile in a form which is sufficient there and also at common law, 
 is effectual to transfer the title, although they may be at the time in 
 another state, unless the statutes or the local policy of that state 
 forbid": Ward v. Connecticut Pipe Mfg. Co., 71 Conn. 345, 71 Am. 
 St. Eep. 207, 41 Atl. 1057, 42 L. R, A. 706; Weller v. J. B. Pace 
 Tobacco Co., 2 N, Y. Supp. 292, in which a foreign receiver was given 
 preference o^er a subsequent domestic attaching creditor. 
 
 22 Lackmann v. Supreme Council (1904), 142 Cal. 22. 
 
 23 Gray v. Covert, 25 Ind. App, 561, 81 Am, St. Rep. 117, 58 N. E. 
 731; Ward v, Connecticut Pipe Mfg. Co., 71 Conn. 345, 71 Am. St. 
 Rep. 207, 41 Atl. 1057, 42 L, R. A. 706; Barth v. Backus, 140 N. Y. 
 230, 37 Am. St, Rep. 545, 35 N. E. 425, 23 L. R. A. 47; Catlin v. Wil- 
 cox Silver Plate Co., 123 Ind. 477, 18 Am. St. Rep. 338, 24 N. E. 
 250, 8 L. R. A. 62; Thum v. Pingree, 21 Utah, 348, 61 Pac. 18; The 
 Willamette Valley, 66 Fed. 565, 13 C. C. A. 635; Hibernia Nat. 
 Bank v. Lacombe, 84 N. Y. 367, 38 Am. Rep. 518; Oilman v. Ket- 
 cham, 84 Wis. 60, 36 Am. St. Eep. 899, 54 N. W. 395, 23 L. R. A. 
 52; Choctaw Coal & M. Co. v. Williams-Echols Dry Goods Co. (Ark.), 
 ^7 8. W. €32; Gerding v. East Tenn. L. Co., 185 Mass. 380, 70 N. E. 
 206.
 
 447 FOREIGN RECEIVERS. § 255 
 
 proceeding in which the receiver was appointed — in this 
 case even though not a citizen of the state of appoint- 
 ment — and has attempted to gain a priority by attach- 
 ing before the receiver could get possession, he will not 
 only be adjudged guilty of a contempt by the court of 
 appointment, but his attachments will not be allowed 
 to prevail in the other jurisdiction.^^ If no injunction 
 had been issued, however, even though the attaching 
 creditor was not only subject to the jurisdiction of the 
 appointing court as a citizen or resident, but also had 
 actual notice of the appointment of the receiver, some 
 courts permit him to enter into a race with the receiver 
 to get possession and reward his diligence by holding 
 that while he is on the same footing with other persons, 
 the receiver appointed in involuntary proceedings will 
 not be recognized so as to prejudice the diligent cred- 
 itor's rights. It is submitted that the better rule is 
 with those courts which deny priority to a creditor at- 
 taching under such circumstances.^^ 
 
 § 255. Actions by Foreign Receiver not Dependent on 
 Comity; (1) Property Rights — Some confusion has arisen 
 from the failure on the part of certain courts to recog- 
 
 24 Gilman v. Ketcham, 84 Wis. 60, 36 Am. St. Rep. 899, 54 N. 
 W. 395, 23 L. R. A, 52; Cole v. Cunningham, 133 U. S. 107, 129, 10 
 Sup. Ct. 269, 33 L. ed. 538; Farmers' L. & T. Co. v. Bankers' 
 Tel. Co., 148 N. Y. 315, 51 Am. St. Rep. 690, 42 N. E. 707, 31 L. R. 
 A. 403; Hibernia Nat. Bank v. Lacombe, 84 N. Y, 367, 38 Am. Rep. 
 518; Bacon v. Home, 123 Pa. St. 452, 16 Atl. 794, 2 L. R, A. 355; 
 Schindelholz v, CuUum, 55 Fed. 885, 5 C. C. A. 293; Earth v. Backus, 
 140 N. Y. 230, 37 Am. St. Rep. 545, 35 N. E. 425, 23 L. R. A. 47; 
 Rhawn v. Pierce, 110 111. 350, 51 Am. Rep. 691; Faulkner v. Hyman, 
 142 Mass. 53; Castleman v. Templeman, 87 Md. 546, 67 Am. St. 
 Rep. 363, 40 Atl. 275, 41 L. R. A. 367. 
 
 25 Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367, 38 Am. Rep. 
 518; Barth v. Backus, 140 N. Y. 230, 37 Am. St. Rep. 545, 35 N. B. 
 425, 23 L. R. A. 47; Gilman v. Ketcham, 84 Wis. 60, 36 Am. St. Rep. 
 699, 54 N. W. 395, 23 L. R. A. 52; and cases cited in last note.
 
 f 255 EQUITABLE REMEDIES. **» 
 
 nize the difference between acts of the receiver which 
 are permitted by comity and acts which give rise to 
 rights in the receiver. Of the latter class are the as- 
 signments already mentioned where the receiver is 
 clothed with the legal title to the assets of the corpora- 
 tion or person whom he represents. In such cases he 
 sues in the foreign jurisdiction not by reason of the 
 comity of the state, but as a matter of right. It mat- 
 ters not whether the thing was in possession or a 
 chose in action; the assignee or receiver who has been 
 invested with the title should, on principle, have the 
 right, aside from comity, to sue on his legal title in 
 any state of the Union, The owner of the thing has a 
 right to transfer it, and such transfer passes title. Not 
 so with a judicial transfer which owes its force to a 
 statute, the effect of which can only be carried out by 
 foreign states through the exercise of comity. The 
 modern cases recognize the difference and hold that 
 a receiver who is in effect a trustee or assignee may 
 sue in his own name. "The effect of such a transfer 
 on goods in another state is not to be determined 
 simply by the rule of comity which is applicable to 
 extra-territorial assignments by operation of law, but 
 rests on the general principles of jurisprudence as to 
 the right of every one to dispose of what he owns."^^ 
 
 26 Baldwin, J., in Ward v. Connecticut Pipe Mfg. Co., 71 Conn. 345, 
 71 Am. St. Rep. 207, 41 Atl. 1057, 42 L. R. A. 706. Where the receiver 
 is practically an assignee or trustee he may sue in his own name; 
 Howarth v. Lombard, 175 Mass. 570, 56 N. E. 888, 49 L. E. A. 301; 
 Cushing V. Perot, 175 Pa. St. 66, 52 Am. St. Eep. 835, 34 Atl. 447, 34 
 L. E. A. 737; Merchants' National Bank v. Northwestern Mfg. etc. 
 Co., 48 Minn. 349, 51 N. W. 117; American Nat. Bank v. National 
 Ben. etc. Co., 70 Fed. 420; Failey v, Talbee, 55 Fed. 892; Avery v. 
 Boston S. D. & T. Co., 72 Fed. 700; Homer v. Barr Pumping En- 
 gine Co., 180 Mass. 163, 91 Am. St. Eep, 269, 61 N. E. 883; Buswell 
 V. Order of Iron Hall, 161 Mass. 224, 36 N. E. 1065, 23 L. E. A. 846; 
 Howarth v. Angle, 162 N, Y. 179, 56 N, E, 489, 47 L, E. A. 725.
 
 44S> FOREIGN RECEIVERS. S§ 256, 257 
 
 § 256. Same; (2) Rights by Contract. — Another case in 
 which the receiver maintains the action not on princi- 
 ples of comity, but on grounds of right is where the de- 
 fendant has by contract assented to the appointment 
 of the receiver, in the event of dissolution of a corpora- 
 tion, €. g., of which he is a stockholder, or the winding 
 up of an insurance company in which he is a policy 
 holder. In such cases the right of the receiver to sue 
 depends upon the promise of the subscriber or policy 
 holder "to pay the sum in question to any receiver prop- 
 erly appointed." The action is ^'founded not on the 
 right of a foreign receiver to sue upon demands in favor 
 of the party he may represent, but on the right of a 
 substituted promisee to sue a promisor whose contract 
 provided for such substitution."^^ 
 
 § 257. Power of Court of Appointment Over Receiver 
 and Other Parties. — Several cases are reported where a 
 court of equity has appointed a receiver of land situ- 
 ated in a foreign state. There is no doubt in such cases 
 but that the court can enforce its orders against those 
 who are subject to its jurisdiction, either territorially 
 or by having submitted themselves to the court' in the 
 proceeding in which the receiver has been appointed. 
 The court, of course, has control of its receiver wherever 
 he may act, and in the same manner it can control the 
 parties to the action and interveners. The court often 
 enjoins parties from proceeding with actions pending 
 in a foreign court. In such case, the foreign state 
 
 27 Baldwin, J., in Fish v. Smith, 73 Conn. 377, 84 Am. St. Rep. 
 161, 47 Atl. 711, 713; Wheeler v. Dime Savings Bank, 116 Mich. 271, 
 72 Am. St. Rep. 521, 74 N. W. 496; Relfe v. Rundle, 103 U. S. 222, 
 26 L. ed. 337; Rundle v. Life Assn. of America, 10 Fed. 720, 4 Woods, 
 94; Taylor v. Life Assn. of America, 13 Fed. 493; Fry v. Charter 
 Oak L. Ins. Co., 31 Fed. 197; Weingartner v. Insurance Co., 32 Fed. 
 314; Hale v. Hardon, 95 Fed. 747, 37 C. C. A. 240. 
 Equitable Remedies, VoL 1—29
 
 § 237 E^UiTAiJLE EEMEDIES. 450 
 
 should enforce the injunction issued in the domiciliary 
 state by refusing to proceed with the litigation or 
 ordering proceedings dismissed.^* In a case in Michi- 
 gan, the supreme court of that state gave effect to a sale 
 by a receiver appointed in a foreign state of laud lying 
 in Michigan.^'^ The decision seems conformable Avith 
 the spirit of comity that prevails among the American 
 states. No rights of creditors or others being involved, 
 the court properly recognized the act of the foreign 
 receiver in selling the land under order of court 
 
 28 In Schindelholz v. Cullum, 54 Fed. 885, 5 C. C. A. 293, Thayer, J., 
 Bays: "Courts which have appointed receivers over property situ- 
 ated in a foreign jurisdiction may either restrain or punish persona 
 who interfere with the receiver's possession of such property; even 
 though the interference consists in attaching it under process ob- 
 tained from some court in the foreign state In all these cases, 
 
 however, the person proceeded against for interfering with the re- 
 ceiver's constructive possession of property located in a foreign ju- 
 risdiction was either a party to the litigation in which the receiver 
 had been appointed, or in privity with a party, or was otherwise 
 subject to the jurisdiction of the court by virtue of his residence 
 or citizenship." See, also, Mercantile Ins. Co. v. River Plate etc. 
 Agency Co., [1892] 2 Ch. 303; Lord Cranstown v. Johnston, 3 
 Ves. 170; Cole v. Cunningham, 133 U. S. 107, 129, 10 Sup. Ct. 269, 
 33 L. ed. 538; Chesapeake etc, Ey. Co. v. Swayze, 60 N. J. Eq. 417, 
 47 Atl. 2*8; Chafee v. Quidnick Co., 13 R. I. 442; Sercomb v. Catlin, 
 128 111. 5o6, 15 Am. St. Rep. 147, 21 N. E. 606; Holbrook v. Ford, 
 153 111. 633, 46 Am. St. Rep. 917, 39 N. E. 1091, 27 L. R. A. 324. A 
 receiver acting beyond the territorial jurisdiction of the court is 
 still subject to its orders: Guarantee T. & S. D. Co. v. P. E. & N. E. 
 R. E., 69 Conn. 709, 38 Atl. 792, 38 L. R. A. 804. A receiver may 
 be appointed in a creditor's bill or in proceedings supplementary to 
 execution, and the debtor who is within the jurisdiction of the court 
 may be required to convey land outside of the state to such receiver; 
 Mitchell V. Bunch, 2 Paige, 606, 22 Am. Dec. 669; Bailey v. Ryder, 
 10 N. Y. 363; Towne v. Campbell, 35 Minn. 231, 28 N. W. 254; Tom- 
 linson etc. Co. v. Shatto, 34 Fed. 380. In American Waterworks 
 Co. V. Farmers' L. & T. Co., 20 Colo. 203, 46 Am. St. Rep. 285, 37 
 Pae. 269, 25 L. R. A. 338, a writ of error was dismissed where the 
 corporation prosecuting the writ had been enjoined in a foreign court 
 appointing a receiver of the corporation, from prosecuting the ac- 
 tion. 
 
 89 Ihinlap v. Byers, 110 Mich. 109, 67 N. W. 1067.
 
 451 ANCILLARY RECEIVERS. § 258 
 
 § 258. Ancillary Receivers; Appointment. — Instead of de- 
 livering to the foreign receiver the property or fund, 
 the courts of the state may appoint an ancillary re- 
 ceiver for the purpose of taking charge of such fund 
 or property.^" This will be done where it is necessary 
 to protect the rights of resident creditors, or of non- 
 residents who have attached the property or fund.^^ 
 But it is entirely discretionary with the court whether 
 an ancillary receiver will be appointed or not.^^ Al- 
 though certain courts have permitted such appointment 
 on an ex parte application,^^ the proper practice is 
 to file an independent bill showing grounds for the ap- 
 pointment of such receiver. Where the property is 
 situated in several states, as a railroad, the federal 
 courts have adopted the rule ex comitate that the pri- 
 mary receiver will be appointed ancillary receiver in 
 the several districts through which the railroad passes, 
 in this way artificially providing for a harmony which 
 could as well be preserved on the general principles of 
 comity without the creation of ancillary receivership.^* 
 
 30 Williams v. Hintermeister, 26 Fed. 889; Mabon v. Ongley Elec- 
 tric Co., 156 N. Y. 196, 50 N. E. 805; Holbrook v. Ford, 153 111. 633, 
 46 Am. St. Rep. 917, 39 N. E. 1091, 27 L, R. A. 324; Evans v. Pease, 
 21 R. I. 187, 42 Atl. 506; Irwin v. Granite State Prov. Assn., 56 N. 
 J. Eq. 244, 38 Atl. 680; Lewis v. American Naval Stores Co., 119 
 Fed. 391. The court of domicile in all such cases is the primarj 
 court: Southern B. & L. Assn. v. Miller, 118 Fed. 369, 55 C. C. A. 
 195; and the ancillary courts must follow the courts of primary ju- 
 risdiction, except so far as the purposes of the ancillary receiver- 
 ship are concerned: Farmers' L. & T. Co. v. Northern Pac. R. R., 
 72 Fed. 26. 
 
 31 Mabon v. Oogley Electric Co., 156 N. Y. 196, 50 N. E. 805. 
 
 32 See the cases cited in the last two notes. 
 
 33 Mercantile Trust Co. v. Kanawha etc. Ry. Co., 39 Fed. 337, to 
 the effect that independent bill should be filed. In Piatt v. Phila- 
 delphia etc. Ry. Co., 54 Fed. 569, the appointment was granted ft» 
 parte. In Mabon v. Ongley Electric Co., 156 N. Y, 196, 50 N. E. 
 805, it is held that the court will not appoint an ancillary receiver 
 on the mere petition of the primary receiver. 
 
 34 Dillon v. Oregon S. L. etc. Co., 66 Fed. 622; Central Trust Com'
 
 i 259 EQUITABLE EEMEDIES. 45ii 
 
 § 259. Ancillary Receivers; Administration of the Fund. — 
 A broad distinction exists bet^yeen the powers of an- 
 cillary receivers and those of primary receivers. So 
 far as the court of their appointment is concerned, the 
 latter are absolutely amenable to its process, and, as 
 we have seen, the administration of the entire fund, 
 wherever it may lie, can by means of the injunctive 
 process of the appointing court, aided by the comity 
 of the courts of sister states, be conducted by the pri- 
 mary tribunal. But in the case of an ancillary receiver^ 
 ex vi termini, there can be no administration of any 
 fund lying outside of the territorial jurisdiction of the 
 appointing court. The very word "ancillary" implies^ 
 a principal, in whom is vested the general administra- 
 tion. Accordingly, we find it determined that the court 
 of ancillary appointment cannot exercise any control 
 over assets in another state by means of injunction 
 against its citizens or against the parties,^^ and that 
 a judgment rendered against an ancillary receiver 
 binds only property in the jurisdiction of appoint- 
 ment.^® So, also, because the entire fund is being ad- 
 ministered elsewhere, claims which more properly exist 
 against the general estate have been referred to the 
 
 pany v. Wabash etc. Ey. Co., 29 Fed. 620; Jennings v, Philadelphia 
 etc. E. E. Co., 23 Fed. 569; Young v. Montgomery E. E. Co., 2 Woods, 
 618, Fed. Cas. No. 18,166; New York P. & 0. E. v. New York L, E. 
 etc. E. Co., 58 Fed. 268; Coltrane v. Templeton, 106 Fed. 370, 45 C. 
 C. A. 328; Central E. Co. v. Farmers' L. & T. Co., 125 Fed. 1001, 60 
 C. C. A. 400. In two cases this rule was not followed, by Judgd 
 Gresham in Atkins v. Wabash Ey. Co., 29 Fed. 162, and by Judge 
 Simonton in Phinzy v. Augusta E. E. Co., 56 Fed. 273. The same 
 rule was followed in Port Eoyal etc. Ey. Co. v. King, 93 Ga. 63, 19 
 S. E. 809, 24 L, E. A. 730, as between state courts, 
 
 35 Holbrook v. Ford, 153 111. 633, 46 Am. St. Eep. 917, 39 N. E. 
 1091, 27 L. E. A. 324. 
 
 36 Eeynolds v. Stockton, 140 U. S. 2-54, 11 Sup. Ct. 773, 35 L. ed. 
 464.
 
 453 ANCILLARY EECEIVEES. i 260 
 
 original court.^'^ Of course, the ancillary receiver in 
 managing the estate in his possession may do acts in 
 other jurisdictions, such as making contracts to carry 
 on the branch of the business under his management, 
 or the carrying of cars belonging to the division of a 
 railroad of which he is receiver, giving rise to jural 
 relations. Where such relations arise they will be re- 
 spected, and the ancillary receiver may have proper 
 remedies even outside the state of his appointment to 
 protect him in doing said acts, in accordance with the 
 principle that his possession and vested rights will be 
 protected everywhere as property rights, just as any 
 bailee's possession or promisee's right is protected.^* 
 
 § 260. Ancillary Receivers; Administration of the Fund; 
 How Far Conclusive on Primary Receiver "Where a re- 
 ceiver or administrator or other custodian of an estate 
 is appointed by the courts of one state, the courts of 
 that state reserve to themselves full and exclusive ju- 
 risdiction over the assets of the estate within the limits 
 of the state. W^hatever orders, judgments or decrees 
 may be rendered by the courts of another state in re- 
 spect of so much of the estate as is Avithin its limits, 
 must be accepted as conclusive in the courts of primary 
 jurisdiction; and whatever matters are permitted by 
 the courts of primary jurisdiction to be litigated in the 
 courts of another state come within the same rule of 
 conclusiveness. Beyond this, the proceedings of the 
 courts of a state in which ancillary administration is 
 held are not conclusive upon the administration in the 
 courts of the state in which primary administration is 
 
 37 Central Trust Co. v. East Tenn. etc. E, Co., 30 Fed. 89-5; Clyde 
 V. Eichmond etc. E, E. Co., 56 Fed. 539. 
 
 38 Guarantee T. & S. D. Co. v. P. E. & N. E. E. E., 69 Conn. 709, 
 38 L. E. A. 804, 38 Atl. 792; and cases cited mpra, §' 255.
 
 I 281 EQUITABLE REMEDIES. 454 
 
 had."'* Neither the party whose estate is being ad- 
 ministered, nor the primary receiver who submits to 
 the foreign court without leave from the court of ap- 
 pointment, can confer a jurisdiction on the ancillary 
 court, by voluntary appearance, because the jurisdiction 
 over the subject matter is absent.'*® The determination 
 of the ancillary court on questions of local law, e. g., 
 taxation, are, of course, binding on the primary court.*^ 
 
 § 261. Ancillary Receivers; Surrender of Fund — Although 
 it has been held that the court of ancillary adminis- 
 tration will provide that the citizens of its state be 
 paid in full, before the balance is transmitted to the 
 primary receiver/^ it is submitted that no rule can be 
 supported which does not put other persons on an equal- 
 ity in regard to the administration.^^ But the require- 
 ment that all shall have the equal protection of the 
 law does not prevent the court of ancillary administra- 
 tion from demanding security from the primary re- 
 ceiver for the equal treatment of its own citizens in 
 the final distribution, as a condition of the surrender 
 of the funds in its possession.*^ And it is proper that 
 the court of ancillary jurisdiction should provide for 
 the retention of a fund required by the laws of the 
 state as a condition precedent to an insurance com- 
 
 89 Brewer, J., in Reynolds v. Stockton, 140 U. S. 254, 272, 11 Sup, 
 Ct. 773, 35 L. ed. 464. 
 
 40 Eeynolda v. Stockton, supra. 
 
 41 Fletcher v. Harney Peak Tin Min. Co., 84 Fed. 555. 
 
 42 Sands v. Greeley, 83 Fed. 772. 
 
 43 Blake V. McClung, 172 U. S. 239, 19 Sup. Ct. 16S, 43 L, ed. 
 432; People v. Granite State Provident Assn., 161 N. Y. 492, 55 N. 
 B. 1053. 
 
 44 People V. Granite State Provident Assn., 161 N. Y. 492, 55 N. 
 X. 1053; Baldwin v, Hosmer, 101 Mich. 119, 59 N. W. 432, 25 L. R. 
 A. 739; Buswell v. Order of Iron Hall, 161 Mass. 224, 36 N. E. 1065, 
 IB L. R. A. 846.
 
 455 ANCILLAEY EECEIVEES. i 261 
 
 pany's transacting business in the state, until all do- 
 mestic creditors and policy-holders should be paid in 
 full — the fund being primarily devoted to that pur- 
 pose."*^ In general, it may be said that the court of 
 ancillary jurisdiction will not surrender possession of 
 the funds in its control to the primary receiver until 
 satisfied that those for whom the ancillary administra- 
 tion was had — the citizens and residents of the state, 
 and creditors invoking its laws — will be fully protected 
 if the fund is surrendered.^® It may, if it prefers, ro 
 tain the fund and pay its citizens a proportionate 
 amount of their debts, when such proportion is deter- 
 mined.^' 
 
 45 People V. Granite State Provident Assn., 161 N. Y. 492, 55 N. 
 E. 1053. 
 
 46 Hunt V. Columbian Ins. Co. (Me,), 92 Am. Dec. 592; Fawcett 
 V. Order of Iron Hall, 64 Conn. 170, 29 Atl. 614, 24 L. R. A. 815; and 
 eases cited in preceding notes. 
 
 47 Fawcett v. Order of Iron Hall, supra; Failey v. Fee, 83 Md. 
 83, 55 Am. St. Rep. 326, 34 Atl. 839, 32 L. ed. 311; Frowert v. Blank, 
 «)6 Pa. St. 299, 54 Atl. 1000.
 
 S 262 EQUITABLE REMEDIES. ► 466 
 
 CHAPTER XII. 
 
 INJUNCTION'S ; GENERAL PRINCIPLES— INJUNC- 
 TION TO PROTECT EQUITABLE ESTATES AND 
 INTERESTS. 
 
 ANAI.YSIS. 
 
 § 262. General nature and object — Abstract of statutes. 
 
 § 263. Fundamental principle. 
 
 § 264. Preliminary or interlocutory injunctions. 
 
 §§ 265-269. Injunctions to protect purely equitable estates or in- 
 terests, and in aid of purely equitable remedies. 
 
 § 266. Instances; to restrain breaches of trust. 
 
 § 267. To restrain violation of confidence. 
 
 § 268. Same; disclosure of trade secrets. 
 
 § 269. Other instances. 
 
 § 262. General Nature and Object — Abstract of Statutes. 
 "The remedy of injunction was undoubtedly borrowed 
 by the chancellors from the 'interdicts' of the Roman 
 law.^ An injunction may be either a final remedy ob- 
 
 1 "As to 'interdicts,' see Gains' Inst., lib. 4, §§ 138-170; Poste'sed., 
 492-520; Just. Inst., lib. 4, tit. 15, §§ 1-8; Sandars' ed., 1st Am. ed., 
 58, 570-580. The general definition as given by Gaius (Id., § 139) is 
 as follows: 'Under certain circumstances, chieily when possession or 
 qiuisi possession [i. e., possession of a servitude] is in dispute, ths 
 first step in the legal proceedings is the interposition of the praetor 
 or pro-consul, who coinmands some performance or forbearance; which 
 commands, formulated in solemn terms, are called interdicts.' The 
 n ost general formula was ^ rim fieri veto, exhibcus, restituas,' 'I forbid 
 you to use violence, you must produce, you must restore,' There were 
 thus three distinct species of interdicts: 1. The prohibitory, where 
 the defendant was commanded to refrain or desist from some act, 
 answering to our ordinary injunction; 2. The exhibitory, where the 
 defendant was commanded to produce and exhibit something in hia 
 possession — exhibcas, which does not answer to any kind of injunction, 
 but has some analogies with certain common-law writs; 3. The re- 
 storative, where the defendant was commanded to restore something 
 to its original position, clearly resembling in its effect our manda-
 
 457 INJUNCTIONS; GENEEAL PEINCIPLES. § 262 
 
 tained by a suit, or a . preliminary and interlocutory 
 relief granted while the suit is pending. In the first 
 case it is a decree, in the second, an order or writ. 
 Whatever be its form, decree or order, the remedy by or- 
 dinary injunction is wholly preventive, prohibitory, or 
 protective. The same is true in theory and in form of a 
 mandatory injunction, which always by its language 
 prohibits the continuance of an act or of a structure, 
 a.1 though in effect and in its essential nature it is 
 wholly restorative, and compels the defendant to restore 
 the thing to its original situation. While injunctions 
 may thus be final, or preliminary and ancillary to other 
 final relief, they all depend upon the same general prin- 
 ciples, doctrines, and rules which determine and regu- 
 late the exercise of the jurisdiction to award them. In 
 the states adopting the reformed procedure, the codes 
 contain general provisions describing the cases in 
 which an injunction may be issued, but these provisions 
 do not materially alter the settled equitable jurisdic- 
 tion, except in reference to injunctions against actions 
 or judgments at law."^ 
 
 tory injunction. Interdicts were granted where some danger was ap- 
 prehended, or some injury was being done, to something of a quasi 
 public character, as the stopping up of a highway, or to some private 
 interest or right. One of the most common occasions of the inter- 
 dict was to protect the plaintiff in his possession of a thing, in which 
 case the interdict uti possidetis was used to protect possession of land 
 and buildings, and the interdict utrubi for movables. In 'the inter- 
 dict uti possidetis, the defendant was forbidden to interfere with the 
 possession 'ncc fi, nee clam, ncc precario.' The granting of interdicts 
 belonged wholly to the 'extraordinary' or equitable jurisdiction of 
 the magistrate." 
 
 2 Pom. Eq. Jur., § 1337. In the following abstract of statutes the 
 general code provisions are given in full, for the purpose of exhibitin(T 
 their divergencies in details; and reference is also made to the most 
 important legislation authorizing injunction in special cases. In some 
 states injunctions for an enormous variety of purposes are authorized 
 by statute. For a tabulation of the contents of these statutes men- 
 tioned below, see the index to this work.
 
 I 262 EQUITABLE EEMEDIEa 45S 
 
 Alabama.— €iv. Code, 1896, SS 784-798. Chiefly matters of prac« 
 tiee. 
 
 8 2580: May issue to restrain insolvent insurance companies from 
 doing business. 
 
 § 838: An injunction pendente lite may issue to restrain waste of 
 property by Intemperate person. 
 
 § 2537: In cases of voluntary separation of husband and wife 
 where application is made for custody of children, court may grant 
 injunction pendente lite to insure safety and well-being of wife and 
 children. 
 
 Arizona.— Rev. Stats. 1901, §§ 2742-2763. 
 
 S 2742: "Judges of the district courts may, either in term time 
 or vacation, grant writs of injunction, returnable to said courts, in 
 the following cases: 
 
 **1. Where it shall appear that the party applying for such writ 
 is entitled to the relief demanded, and such relief or any part thereof 
 requires the restraint of some act prejudicial to the applicant. 
 
 "2. Where, pending litigation, it shall be made to appear that a 
 party is doing some act respecting the subject of litigation, or 
 threatens, or is about to do some act, or is procuring or suffering the 
 same to be done in violation of the rights of the applicant, which 
 act would tend to render the judgment ineffectual. 
 
 "3. In all other eases where the applicant for such writ may show 
 himself entitled thereto under the principles of equity." 
 
 S 2743: No injunction against judgments, etc., except to so much as 
 eomplainant may show himself equitably entitled to be relieved 
 against, and costs. 
 
 § 2744: No injunction to stay execution on valid judgment after 
 •ne year. 
 
 { 2745: May be granted on complaint or on affidavits. 
 
 I 2746: Notice of application. 
 
 S 2750: To stay proceedings, must be returnable and tried in court 
 where proceedings pending or judgment rendered. 
 
 § 2751: Bond of complainant. 
 
 {§ 2755, 2756: Dissolution of injunctions. 
 
 { 2759: "An injunction to suspend the general and ordinary busi- 
 ■683 of a corporation shall not be granted except by the court or 
 judge. ' ' 
 
 § 2763: General principles of equity apply to, except where conflict 
 with statute. 
 
 5 3120: In suit for divorce, wife may obtain injunction restraining 
 husband from disposing of community property, and of her sepa- 
 rate property in his possession. 
 
 Arkansas.— Sandel's & Hill's Stats. 1894, §§ 3774-3813. 
 
 ''5 3774: The writ of injunction is abolished."
 
 459 INJUNCTIONS; ABSTEACT OF STATUTES. § 202 
 
 "S 3775: An injunction is a command to refrain from a pirticular 
 net." 
 
 "§ 377G: It may be the final judgment in an action, or may be al- 
 loweil as a provisional remedy, and where so allowed it shall be by 
 order." 
 
 "§ 3777: Where it appears by the complaint that the plaintiff is en- 
 titled to the relief demanded, and such relief, or any part thereof, 
 consists in restraining the commission or continuance of some act 
 which could produce great or irreparable injury to the plaintiff, or 
 where, during the litigation, it appears that the defendant is doing, 
 or threatens, or is about to do, or is procuring or suffering to be 
 done, some act in violation of the plaintiff's rights, respecting the 
 subject of the action and tending to render the judgment ineffectual, 
 a temporary injunction may be granted to restrain such act. It may 
 jilso be granted in any case where it is specially authorized by stat- 
 ute." 
 
 "§ 3778: The judge of the circuit court may grant injunctions and 
 restraining orders in all cases of illegal or unauthorized taxes and 
 assessments by county, city or other local tribunals, boards or offi- 
 cers." .... 
 
 "§ 3798: An injunction to stay proceedings on a judgment or final 
 order of a court shall not be granted in an action brought by a party 
 seeking the injunction in any other court than that in which the 
 judgment or order was rendered or made." 
 
 Against illegal municipal taxation and payments: 
 
 '*§ 5169. Any person owning property and having taxes to pay 
 in any city or town may, upon application to any judge or court hav- 
 ing authority to grant injunctions, enjoin the collection of any tax 
 levied in such city or town, without authority of law, and may also 
 enjoin the issue or the payment by such city or town of any warrants, 
 certificates or other form or evidence of indebtedness against such 
 city or town issued or contracted without authority of law." 
 
 Injunction suspending proceedings on a judgment or order: 
 
 "§ 4202: The party seeking to vacate or modify a judgment or 
 order may obtain an injunction suspending proceedings on the 
 whole or part thereof, which injunction may be granted by the court, 
 or any officer authorized to grant injunctions, upon its being rendered 
 probable, by affidavit or by exhibition of the record, that the party 
 ts entitled to have such judgment or order vacated or modified." 
 
 5 4203: Concerns the case where the judgment is rendered prema- 
 turely, before the action stood for trial; it may be suspended although 
 BO valid defense to the action is shown. 
 
 California. — Code Civ. Proc, §§ 525-533. 
 
 f 525: "An injunction is a writ or order requiring a person to ro» 
 frsin from a particular act,"
 
 S 2C2 EQUITABLE EEMEDIES. 460 
 
 § 526: "An injunction may be granted in the following cases: 
 
 "1. When it appears by the complaint that the plaintiff is entitled 
 to the relief demanded, and such relief, or any part thereof, consists 
 in restraining the commission or continuance of the act complained 
 of, either for a limited period or perpetually, 
 
 "2. When it appears bj^ the complaint or affidavit that the commis- 
 Bion or continuance of some act during the litigation would produce 
 waste, great or irreparable injury to the plaintiff. 
 
 "S. When it appears during the litigation that the defendant is 
 doing, or threatens, or is about to do, or is procuring or suffering to 
 be done, some act in violation of the plaintiff's rights, respecting the 
 subject of the action, and tending to render the judgment ineffectual." 
 
 Nuisance may be enjoined, Code Civ. Proc, § 731: "Anything 
 which is injurious to health, or indecent or offensive to the senses, 
 or an obstruction to the free use of property, so as to interfere with 
 the comfortable enjoyment of life or property, is a nuisance, and the 
 subject of an action. Such action may be brought by any person 
 whose property is injuriously affected, or whose personal enjoyment is 
 lessened by the nuisance; and by the judgment, the nuisance may be 
 enjoined or abated, as well as damages recovered." 
 
 Waste during foreclosure or after execution sale. Code Civ, Proc, 
 § 745: "The court may by injunction, on good cause shown, restrain 
 the party in possession from doing any act to the injury of real prop- 
 erty during the foreclosure of a mortgage thereon; or, after a sale 
 on execution, before a conveyance." 
 
 No injunction to enforce a penal law, a penalty or a forfeiture. Civ, 
 Code, § 3369: "Neither specific nor preventive relief can be granted 
 to enforce a penal law, except in a case of nuisance, nor to enforce 
 a penalty or forfeiture in any case." 
 
 "Preventive relief," Civ. Code, §§ 3420-3423. 
 
 § 3420: "Preventive relief is granted by injunction, provisional 
 or final." 
 
 § 3421: "Provisional injunctions are regulated by the Code of Civil 
 Procedure." 
 
 §■ 3422: "Except where otherwise provided by this title, a final in 
 junction may be granted to prevent the breach of an obligation* ex- 
 isting in favor of the applicant: 
 
 "1. Where pecuniary compensation would not afford adequate re- 
 lief; 
 
 "2. Where it would be extremely difficult to ascertain the amount 
 of compensation which would afford adequate relief; 
 
 * "Obligation" is elsewhere defined as a "legal duty": Civ. Code, 
 i 1427.
 
 461 INJUNCTIONS; ABSTEACT OF STATUTES. S 262 
 
 "3. Where the restraint is necessary to prevent a multiplicity of 
 judicial proceedings; or, 
 
 "4. Where the obligation arises from a trust." 
 
 S 3423: "An injunction cannot be granted: 
 
 "1. To stay a judicial proceeding pending at the commencement of 
 the action in which the injunction is demanded, unless such restraint 
 is necessary to prevent a multiplicity of such proceedings; 
 
 "2. To stay proceedings in a court of the United States; 
 
 "3. To stay proceedings in another state upon a judgment of a 
 court of that state; 
 
 "4. To prevent the execution of a public statute, by officers of 
 the law, for the public benefit; 
 
 "5. To prevent a breach of a contract, the performance of which 
 would not be specifically enforced; 
 
 "6. To prevent the exercise of a public or private of&ce, in a law- 
 ful manner, by the person in possession; 
 
 "7. To prevent a legislative act by a municipal corporation." 
 
 Injunction against the infringement of trade-marks is provided for 
 in Political Code, § 3199. 
 
 Colorado.— Eice 's Code of Procedure (1890), §§ 142-161. 
 
 I 142: "An injunction is generally an order requiring a person to 
 refrain from doing a particular act, but where simply refraining from 
 doing a particular act will not effectuate the relief to which the plain- 
 tiff is entitled, the injunction may be made mandatory, and require 
 Buch acts to be done as will give the plaintiff the full protection 
 which he may be entitled to." 
 
 § 143: When an injunction may be granted: substantially the same 
 grounds as in California Code of Civil Procedure (supra), § 526, 
 with the addition, "and in such other cases as courts of equity have 
 hitherto granted relief by injunction, or which may be specially pro- 
 vided for in this act." 
 
 5 145: Venue of injunctions to stay proceedings at law. 
 
 S 158: Injunction for defendant on his cross-complaint or aflBdavit* 
 
 § 159: Injunction having effect of writ of restitution of mining 
 property. See, also, as to injunctions relating to mines and mining, 
 Mills' Statutes (1891), §§ 1057, 3159, 3191, 3214, 3238-3241. 
 
 Connecticut.— Gen. Stats. (1888), §§ 1273-1293. 
 
 S 1273: May be granted "according to the course of proceedings in 
 equity, in all actions for equitable relief where such relief is properly 
 demandable." 
 
 § 1277: Injunction may be granted "against the malicious erec- 
 tion .... of any structure upon 'land' intended to annoy and in- 
 jure any owner or lessee of adjacent land in respect to his use or 
 disposition of the same."
 
 { 262 EQUITABLE REMEDIES. 462 
 
 §§ 1278-1282: Public or private nuisance by a manufacturer; any 
 persons aggrieved may unite in a complaint for its abatement or dia- 
 continuance. 
 
 See, also, § 525 (against insolvent debtor's disposing of his prop- 
 **'ty); § 1830 (against bank, savings bank, or trust company when 
 its charter is forfeited); § 2656 (against building injuring source of 
 municipal water supply) ; § 2668 (against bridges obstructing naviga- 
 ble streams); § 2811 (concerning custody of minor children in divorce 
 proceedings); §§ 2822, 2823, 2836 (concerning the business of insur- 
 ance companies); § 3429 (on application of railroad commissioners, 
 to restrain any person from exercising the duties of any officer in 
 such company). 
 
 Delaware.— Rev. Stats. 1852, as am. 1893, p. 666, e. 88 § 11. 
 
 "Upon the petition of a person holding any lien upon real estate, 
 ■whether by judgment, recognizance, mortgage, or otherwise, the 
 chancellor may, in a proper case, award an injunction, or the Superior 
 Court of the county, wherein such real estate is, may award a writ 
 of estrepement, for the purpose of restraining waste upon the prem- 
 ises subject to the lien." 
 
 Florida.— Rev. Stats. 1892, §§ 1463-1472. 
 
 § 1468: Injunction may issue against sale of real property of third 
 person under a writ of fieri facias. 
 
 § 1469: Injunctions may issue to restrain trespasses on timber 
 lands, by cutting trees, etc. 
 
 § 1472: Injunction may issue to restrain the removal of mortgaged 
 personal property from the state. 
 
 § 800: Injunction may issue at suit of a board of health to restrain 
 the violation of rules adopted by it for the protection of the public 
 health. 
 
 § 2006: "The circuit courts shall have equity jurisdiction to en- 
 join the sale of all property, real and personal, that is exempt from 
 forced sale." 
 
 § 2007: Injunction may issue to restrain officer from setting apart 
 nonexempt property as exempt. 
 
 Georgia.— Code, 1895, §§ 4913-4928. 
 
 "§ 4913 (3210): For what purpose granted. — Equity, by a writ of 
 injunction, may restrain proceedings in another or the same court, 
 or a threatened or existing tort, or any other act of a private in- 
 dividual or corporation which is illegal or contrary to equity and good 
 conscience, and for which no adequate remedy is provided at law." 
 
 "§ 4914: Administration of criminal laws, no interference by 
 •equity. — A court of equity will take no part in the administration of 
 the criminal law. It will neither aid criminal courts in the exer- 
 cise of their jurisdiction, nor will it restrain or obstruct them."
 
 463 INJUNCTIONS; ABSTEACT OF STATUTES. § 262 
 
 "§ 4915 (321S): Enjoining a court of law. — Equity will rot enjoin 
 the proceedings and processes of a court of law, unless there is some 
 intervening equity, or other proper defense, of which the party, with- 
 out fault on his part, cannot avail himself at law. Writs of injunc- 
 tion may be issued by judges of the superior court to enjoin sales by 
 sheriffs, at any time before the sale takes place, in any proper case 
 made by the bill or application for injunction." (As to setting aside 
 judgments, see §§ 3987, 3988.) 
 
 § 4916 (3219): To restrain a trespass. — Equity will not interfere 
 to restrain a trespass, unless the injury is irreparable in damages, 
 or the trespasser is Insolvent, or there exist other circumstances 
 which, in the discretion of court, render the interposition of this writ 
 necessary and proper, among which shall be the avoidance of circuity 
 and multiplicity of actions. 
 
 § 4917: Waste not enjoined when title in dispute. — Equity will not 
 interfere by injunction to restrain waste when petitioner's title is not 
 clear. Such relief is granted only when the title is free from dispute. 
 
 § 4918: Creditors without lien. — Creditors without lien cannot, as 
 a general rule, enjoin their debtors from disposing of property, nor 
 obtain injunction or other extraordinary relief in equity. 
 
 § 4919: Injunction to restrain breach of contract for personal ser- 
 vices. — Generally, an injunction will not issue to restrain the bread) 
 of a contract for personal services, unless they are of a peculiar merit 
 or character, and cannot be performed by others. 
 
 § 4920 (3220). In sound discretion of judge. — The granting au'l 
 continuing of injunctions must always rest in the sound discretion 
 of the judge, according to the circumstances of each case. 
 
 See, also, the following sections: 
 
 § 3863 (3002): Nuisatice. — Where the consequences of a nuisance 
 about to be erected or commenced will be irreparable in damages, 
 and such consequences are not merely possible, but to a reasonable 
 degree certain, a court of equity may interfere to arrest a nuisance 
 before it is completed. 
 
 § 4902: "The power of appointing receivers and ordering injunc- 
 tions should be prudently and cautiously exercised, and except in 
 clear and urgent cases should not be resorted to." 
 
 Idaho.— Code Civ. Proc, §§ 3283-3293, 3373. 
 
 Same as California, with some additions. § 3284 (6) provides for 
 injunction having force and effect of a writ of restitution, in case of 
 ouster by force, etc. 
 
 Illinois. — Hurd's Eev. Stats. (1889), c. 69. Concerns chiefly mat- 
 ters of practice. § 1: What part of judgment may be enjoined. — 
 "Only so much of any judgment at law shall be enjoined as the com- 
 plainant shall show himself equitably not bound to pay, and so much 
 SIS shall be sufficient to cover costs."
 
 I 262 EQUITABLE EEMEDIES. 464 
 
 Indiana.— Burns' Rev. Stats. 1894, §§ 1161-1180 (1147-1166); Code 
 Civ. Proc, §§ 177-196. 
 
 "§ 1162 (1148). Proceedings to oMain.— 178. When it appears by 
 the complaint that the plaintiff is entitled to the relief demanded, 
 and the relief, or any part thereof, consists in restraining the commis- 
 sion or continuance of some act, the commission or continuance of 
 which, during the litigation, would produce great injury to the plain- 
 tiff, or when, during the litigation, it appears that the defendant is 
 doing, or threatens, or is about to do, or is procuring or suffering some 
 act to be done, in violation of the plaintiff's rights, respecting the 
 subject of the action, and tending to render the judgment ineffectual; 
 or when such relief, or any part of it, consists in restraining proceed- 
 ings upon any order or judgment, — an injunction may be granted 
 to restrain such act or proceedings until the further order of the 
 court; which may, afterward, be modified upon motion. And when 
 it appears in the complaint at the commencement of the action, or 
 during the pendency thereof by aflSdavit, that the defendant threatens 
 or is about to remove or dispose of his property, with intent to de- 
 fraud his creditors, a temporary injunction may be granted to re- 
 strain the removal or disposition of his property." 
 
 "§ 292 (291). Nuisance — Remedy. — 711, Where a proper case is 
 made, the nuisance may be enjoined or abated, and damages recovered 
 therefor." 
 
 Iowa.— McClain's Code (1888), §§ 4622-4643 (3386-3407). 
 
 '*§ 4622. Grounds for. — 3386. An injunction may be obtained as 
 an independent remedy in an action by equitable proceedings, in all 
 cases where such relief would have been granted in equity previous 
 to the adoption of this code; and in all cases of breach of contract 
 or other injury, where the party injured is entitled to maintain, and 
 has brought an action by ordinary proceedings, he may, in the same 
 cause, pray and have a writ of injunction against the repetition or 
 continuance of such breach of contract or other injury, or the com- 
 mittal of any breach of contract or injury of a like kind, arising out 
 of the same contract, or relating to the same property or right, and 
 he may also, in the same action, include a claim for damages or other 
 redress. 
 
 "§ 4623. Temporary or permanent. — 3387. In any of the cases* 
 mentioned in the preceding section, the injunction may either be 
 a part of the judgment rendered in the action or it may, if proper 
 grounds therefor are shown, be granted by order at any stage of the 
 ease before judgment, and shall then be known as a temporary in- 
 junction." 
 
 §■ 4624: Temporary, when allowed. — Similar to first two clauses of 
 the Indiana section, supra. 
 
 See, also, § 1746 (against insolvent life insurance companies); § 2047 
 (to enforce rulings, orders and regulations of the board of railroad
 
 465 INJUNCTIONS; ABSTKACT OF STATUTES. i 262 
 
 commissioners); § 2334 (to enjoin nuisance committed by the sale, 
 etc., of intoxicating liquors; at the suit of any citizen of the county. 
 See, also, §§ 2386, 2387, 2397); § 4390 (suspending proceedinga on a 
 judgment sought to be vacated or modified); § 4553 (to procure trans- 
 fer of proceeding for foreclosure of chattel mortgage); § 4567 (nui- 
 Bance defined; same as California code). 
 
 Kansas.— Gen. Stats. 1901, §§ 4684-4700; Code, §§ 237-253. 
 
 Code, § 237: "The injunction provided by this code is a command 
 to refrain from a particular act. It may be the final judgment in 
 an action, or may be allowed as a provisional remedy, and, when so 
 allowed, it shall be by order. The writ of injunction is abolished. " 
 
 Code, § 238: Grounds for injunction. — Similar to Arkansas, although 
 wording varies slightly, and adding the following: "And when, dur- 
 ing the pendency of an action, it shall appear, by affidavit, that the 
 defendant threatens or is about to remove or dispose of his property 
 with intent to defraud his creditors, or to render the judgment in- 
 effectual, a temporary injunction may be granted to restrain such re- 
 moval or disposition. It may also be granted in any case where it 
 is specially authorized by statute." 
 
 Code, § 239: May be granted at time of commencement of action, 
 or afterward, upon afiidavit. 
 
 Code, § 240: Court may direct reasonable notice to be given, but 
 may restrain action until hearing. 
 
 Code, § 241: "An injunction shall not be granted against a party 
 ■who has answered, unless upon notice; but such party may be re- 
 strained until the decision of the application for an injunction." 
 
 Code, § 242: Bond. 
 
 Code, § 252: "A defendant may obtain an injunction upon an an- 
 swer in the nature of a counterclaim. He shall proceed in the man- 
 ner hereinbefore described." 
 
 Code, § 253: "An injunction may be granted to enjoin the illegal 
 levy of any tax, charge or assessment, or the collection of any illegal 
 tax, charge or assessment, or any proceeding to enforce the same; 
 and any number of persons whose property is affected by a tax or 
 assessment so levied may unite in the petition filed to obtain such in- 
 junction. An injunction may be granted in the name of the state 
 to enjoin and suppress the keeping and maintaining of a common 
 nuisance. The petition therefor shall be verified by the county at- 
 torney of the proper county, or by the attorney-general, upon in- 
 formation and belief, and no bond shall be required." 
 
 Gen. Stats. 1901, §§ 7656, 7658: Duty of treasurer upon dissolution 
 of injunction restraining collection of tax. 
 
 § 3176: Injunction may issue against collection of special assesth 
 ment when officers are interested in contract. 
 Equitable Eemedies, Vol. I — 30
 
 § 262 EQUITABLE REMEDIES. 466 
 
 § 2450: Declares places used for unlawful purposes, such as for 
 bucket shops, to be nuisances. "The attorney-general, county attor- 
 ney or any citizen of the county where such nuisance exists or is kept 
 and maintained may maintain an action in the name of the state to 
 abate and perpetually enjoin the same. The injunction may be 
 granted at the commencement of the action, and no bond shall be re- 
 quired." 
 
 § 2231: Declares places where gaming, etc., is carried on to bo 
 nuisances, and authorizes injunction as in § 2450. 
 
 § 2686: Electors may maintain action for injunction to restrain re- 
 moval of county offices and to determine validity of county seat elec- 
 tion. 
 
 §■ 7855: Injunction may issue to restrain wrongful use of labels, 
 trade-marks, etc., of any association or union of workingmen. 
 
 Kentucky.— Code (1888), §§ 271-297. 
 
 § 272: Defines causes for temporary injunction in language similar 
 to that of the Iowa Code, §_^ 4624. 
 
 § 285: Judgment can be enjoined only in the court rendering it. 
 
 § 17: "A judgment obtained in an ordinary action shall not be an- 
 nulled nor modified by any order in an equitable action, except for a 
 defense which arises or is discovered after rendition of the judg- 
 ment." 
 
 § 523 [584]: Injunction suspending proceedings on a judgment may 
 be obtained by a party seeking to vacate or modify it. 
 
 § 436: Injunction, in action in equity for settlement of decedent's 
 estate, against prosecution of actions by creditors against the repre- 
 sentatives of the decedent. 
 
 § 467: In forcible entry and detainer proceedings, to restrain waste 
 and destruction of the premises. 
 
 § 476: In mandamus or prohibition proceedings, to prevent dam- 
 age or injury to the applicant. 
 
 ' ' § 378 : When Collection of Judgment mau be Enjoined. — During the 
 pendency of an action, the judgment in which when recovered could 
 be used as a set-off against a judgment in favor of the defendants or 
 either of them, the court, to prevent loss by insolvency, non-residenco, 
 or otherwise, may enjoin the collection of the judgment in favor of 
 6uch defendants." 
 
 Maine.— Rev. Stats. 1903. 
 
 Page 447: Upon dissolution of corporation, injunction may be 
 granted. 
 
 Page 396: Injunction may issue to restrain infringement of trade 
 marks. 
 
 Page 952: The attorney-general may have an injunction to restrain 
 B lottery.
 
 467 INJUNCTIONS; ABSTRACT OF STATUTES. § 262 
 
 Page 76: Injunction may issue at suit of ten or more taxable citi- 
 zens to restrain any action in which municipal officers are privately 
 interested. 
 
 Page 678: "When counties, cities, towns, school districts, village or 
 other public corporations, for a purpose not authorized by law, vote 
 to pledge their credit or to raise money by taxation or to exempt 
 property therefrom, or to pay money from their treasury, or if anj 
 of their officers or agents attempt to pay out such money for such 
 purpose, the court shall have equity jurisdiction on petition or appli- 
 cation of not less than ten taxable inhabitants thereof, briefly setting 
 forth the cause of complaint." 
 
 Page 269: "All places used as houses of ill-fame, or for the illegal 
 sale or keeping of intoxicating liquors, or resorted to for lewdness or 
 gambling; all houses, shops or places where intoxicating liquors are 
 sold for tippling purposes, and all places of resort where intoxicating 
 liquors are kept, sold, given away, drank or dispensed in any manner 
 not provided for by law, are common nuisances. The supreme judi- 
 cial court shall have jurisdiction in equity, upon information filed br 
 the county attorney or upon petition of not less than twenty legal 
 voters of such town or city, setting forth any of the facts contained 
 herein, to restrain, enjoin or abate the same, and an injunction for 
 such purpose may be issued by said court or any justice thereof." 
 
 Pages 517, 518: Injunction to prevent taking of property by emi- 
 nent domain until compensation made. 
 
 Page 827. Injunction against waste by defendant in action to re- 
 cover possession of land. 
 
 Maryland. — Pub. Gen. Laws, 1904. 
 
 Page 400, art. 16, § 80: "No court shall refuse to issue a man- 
 damus or injunction on the mere ground that the party asking for 
 the same has an adequate remedy in damages, unless the party against 
 whom the same is asked shall show to the court's satisfaction that he 
 has property from which the damages can be made, or shall give a 
 bond in a penalty to be fixed by the court, and with a surety or 
 sureties approved by the court, to answer all damages and costs that 
 he may be adjudged by any court of competent jurisdiction to pay 
 to the party asking such mandamus or injunction by reason of his 
 not doing the act or acts sought to be commanded, or by reason of 
 his doing the act or acts sought to be enjoined, as the case may be." 
 
 Page 437, art. 16, § 190: Court has power to issue mandatory injunc- 
 tions. 
 
 Page 1548, art. 66, § 16: No injunction to stay sale or proceedings 
 after mortgage sale, except at suit of party to mortgage, or of one 
 claiming under him, and upon oath that debt has been fully paid, 
 or that mortgagee refuses to give credit for part paid, or that there 
 has been fraud.
 
 § 262 EQUITABLE EEMEDIES. 468 
 
 Massachusetts. — Pub. Stats. 1882. Among other provisions, see 
 
 Chapter 27, § 129: Abuse of corporate power by toicns, providing 
 for suit by not less than ten taxable inhabitants, and injunction there- 
 in, "when a town votes to raise by taxation or pledge of its credit, or 
 to pay from its treasury, any money for a purpose other than those 
 for which it has the legal right and power." On the subject of this 
 section, see Babbitt v. Selectmen of Savoy, 3 Cush. 530; Tash v. 
 Adams, 10 Cush. 252; Hood v. Lynn, 1 Allen, 103; Fuller v. Melrose, 
 1 Allen, 1G6; Frost v. Belmont, 6 Allen, 152; Allen v. Marion, 11 
 Allen, 108; Copeland v. Huntington, 99 Mass. 525; Carlton v. Salem, 
 103 Mass. 141; Fisk v. Springfield, 116 Mass. 88, 89; Mead v. Acton, 
 139 Mass. 341, 345, 1 N. E. 413; Prince v. Boston, 148 Mass. 285, 19 
 N. E. 218. 
 
 Chapter 76, § 7: To restrain the illegal use of trade-marks or names 
 Se« Ames v. King, 2 Gray, 379; Bowman v. Floyd, 3 Allen, 76, 80 Am. 
 Dec. 55; Magee Furnace Co. v. Le Barron, 127 Mass. 115; Connell v. 
 Keed, 128 Mass. 477,-35 Am. Eep. 397; Lawrence Mfg. Co. v.' Lowell 
 etc. Mills, 129 Mass. 325, 37 Am. Eep. 362; Eussia Cement Co. v. 
 Le Page, 147 Mass. 206, 9 Am. St. Eep. 685, 17 N. E. 304. 
 
 Chapter 80, § 26: To restrain a nuisance affecting the public health. 
 
 § 26: To prevent offensive trades: See Watertown v. Mayo, 109 
 Mass. 315, 12 Am. Eep. 694. 
 
 §§ 98, 99: To prevent pollution of sources of water supply. See 
 Harris v. Mackintosh, 133 Mass. 228, 230. 
 
 Chapter 112, § 104: Against taking of land by railroad. 
 
 Chapter 179, §§ 12-14: To stay waste by person whose land is at- 
 tached, etc. 
 
 Chapter 180, §§ 5, 6, 7: Nuisance; injunction either in a suit in 
 equity or in an action of tort. 
 
 Provisions in the statutes since 1882 for injunctions in special cases 
 are exceedingly numerous. 
 
 Michigan. — Comp. Laws, 1897. 
 
 §§ 502-514: Courts have jurisdiction to stay proceedings at law, 
 but security must be given. 
 
 § 3937: "No injunction shall issue to stay proceedings for the 
 assessment or collection of taxes under this act." 
 
 S 3938: Holder of certificate of tax sale is entitled to injunction to 
 restrain waste on timber land. 
 
 §§ 4363, 4364: No injunction against collection of drain taxes. 
 
 § 8687: Husband may be enjoined from disposing of property pend- 
 ing suit by wife for maintenance. 
 
 § 11132: "The circuit court for each county shall have equity ju- 
 risdiction of all matters concerning waste, in which there is not a 
 plain, adequate and complete remedy at law; and may grant injunc- 
 tions to stay or prevent waste; and whenever it shall be necessary or 
 proper to have any fact tried by a jury, such court may award a 
 ImgTied issue for that purpose, as in other cases."
 
 469 INJUNCTIONS; ABSTRACT OF STATUTES. § 262 
 
 Minnesota.— Stats. (1894), §§ 5343-5350. 
 
 § 5344: Eelating to the granting- of temporary injunctions, resem- 
 bles, in general, the first two clauses and the last clause of the In- 
 diana statutes, § 1162. 
 
 See, also, §§ 393 (c), 399 (injunction to enforce order of railroad and 
 warehouse commission); §§ 432, 1496 (to enforce orders of state board 
 of health relating to pollution of water supply, or to noxious trades); 
 § 2261 (against orders of factory inspectors); § 2911 (by judgment 
 creditor of co-operative association to restrain alienation of property 
 and doing business). 
 
 § 5434 (Acts of 1877, c. 131, § 1): Actions to set aside judgment 
 for fraud, etc. — "That in all cases where judgment heretofore has 
 been or hereafter may be obtained in any court of record by means 
 of the perjury, subornation of perjury, or any fraudulent act, prac- 
 tice or representation of the prevailing party, an action may be 
 brought by the party aggrieved to set aside said judgment, at any 
 time within three years after the discovery by him of such perjury," 
 
 etc "In such action the court shall have and possess the same 
 
 powers heretofore exercised by courts of equity in like proceedings, 
 and may perpetually enjoin the enforcement of such judgment, or 
 command the satisfaction thereof, and may also compel the prevailing 
 party to make restitution of any money or other property received 
 by virtue thereof, and may also make such other or further order or 
 judgment as may be just or equitable, provided" that rights of inno- 
 cent third parties under the judgment shall not be affected. See this 
 statute interpreted in Wieland v. Shillock, 24 Minn. 345; Baker v. 
 Sheehan, 29 Miun. 235, 12 N. W. 704; Spooner v. Spooner, 26 Minn. 
 138, 1 N. W. 838; Bornsta v. Johnson, 38 Minn. 230, 36 N. W. 341; 
 Stewart v. Duncan, 40 Minn. 410, 42 N. W. 89; Hass v. Billings, 42 
 Minn. 63, 43 N. W. 797; Wilkins v. Sherwood, 55 Minn. 154, 56 N. W. 
 591; Clark v. Lee, 58 Minn. 410, 59 N. W. 970. 
 
 See, also, § 5893 (injunction, at suit of attorney-general, against 
 usurpation of corporate powers); §§ 5900, 5901 (against insolvent 
 banking and insurance companies) ; § 5972 (against corporation, after 
 judgment of exclusion from corporate rights); §§ 6921, 6922 (against 
 counterfeiting the labels, trade-marks, etc., of labor unions; § 692S 
 (against counterfeiting of trade-marks in general); $ 7715 (against 
 operating warehouses without a license). 
 
 Mississippi. — Annotated Code, 1892. 
 
 § 558: An injunction to stay proceedings at law shall not be issued 
 until the party shall enter into a bond conditioned to pay the judg- 
 ment at law in case the injunction is dissolved. 
 
 § 559: Bond in other cases. 
 
 § 561: No injunction shall issue to restrain collection of taxes un- 
 less bond is filed conditioned for payment of tax if injunction di»- 
 •olved.
 
 $ 262 EQUITABLE EEMEDIES. 470 
 
 § 483: "The chancery court shall have jurisdiction of suits by one 
 or more tax-payers of any county, city, town, or village, to restrain 
 the collection of any taxes levied or attempted to be collected with- 
 out authority of law." 
 
 § 484: If such an injunction is .dissolved, the court shall enter de- 
 cree against the complainant and his sureties for the amount of taxes 
 enjoined and ten per cent thereon, and costs of suit. 
 
 Missouri.—Kev. Stats. 1889, §§ 3627-3649. 
 
 § 3630: Granting of temporary injunction; same as Indiana, first 
 two clauses. 
 
 "§ 3635: Extent of judgment to stay proceedings.— No injunction 
 shall be granted to stay any judgment or proceeding, except so much 
 of the recovery or cause of action as the plaintiff shall show him- 
 self equitably entitled to be relieved against, and so much as will 
 cover costs." 
 
 § 3648: To protect property of married woman from waste by hus- 
 band. 
 
 "§ 3649: The remedy by writ of injunction or prohibition shall ex- 
 ist in all cases where a cloud would be put on the title of real estate 
 being sold under an execution against a person, partnership or corpo- 
 ration having no interest in such real estate subject to execution at 
 the time of sale, or an irreparable injury to real or personal prop- 
 erty is threatened, and to prevent the doing of any legal wrong 
 whatever, whenever in the opinion of the court an adequate remed> 
 eannot be afforded by an action for damages." 
 
 See, also, § 1023 (injunction against corporation for failure to main- 
 tain a general office within the state); § 1031 (against corporation 
 failing to restore gra'nts in certain cases) ; § 1043 (railroad may be 
 enjoined from running trains in certain cases) ; § 1150 (against com- 
 mon carriers); § 1059 (against consolidation of railroads); § 1306 
 (against bank or trust company, when not to issue); § 1421 (fraternal 
 beneficiary association enjoined from doing business, when) ; § 3074 
 (to stay plaintiff in ejectment from taking possession of the land un- 
 til the value of improvements is ascertained); § 8025 (against insol- 
 vent insurance company). 
 
 Montana.— Code Civ. Proc, §§ 870-881. 
 
 § 871: When injunction may be granted: substantially the same 
 as California Code Civ. Proc, § 526, with this addition: "4. When 
 it appears, by affidavit, that the <lefendant, during the pendency of 
 the action, threatens, or is about to remove, or to dispose of his 
 property, with intent to defraud the plaintiff, an injunction order 
 may be granted, to restrain the removnl or disposition." 
 
 Civ. Code, §§ 4460-4463: Same as California Civ. Code, §§ 3420- 
 3423. 
 
 Nebraska.— Code Civ. Proc, §§ 250-265. 
 
 § 251: Cause for allowance of temporary injunction; the usual code 
 provision.
 
 47.1 INJUNCTIONS; ABSTKACT OF STATUTES. § 2Gii 
 
 Taxation. — Conip. Stats. 1899, c. 77, § 144: "No injunction shall 
 be granted by any court or judge in this state, to restrain the col- 
 lection of any tax, or any part thereof, hereafter levied, nor to re- 
 strain the sale of any property for the non-payment of any such tax, 
 except such tax, or the part thereof enjoined, be levied or assessed 
 for an illegal or unauthorized purpose." See, also, as to drainage 
 assessments, c. 89, art. 1, § 28. 
 
 Against common carrier disobeying order of board of transporta- 
 tion, c. 72, art. 8, § 16. 
 
 Suspending proceedings on judgment; injunction allowed in favor 
 of party seeking to vacate or modify a judgment or order: Code Civ. 
 Proc, §§ 607, 608. 
 
 New Hampshire.— Pub. Stats. (1891), c. 205, § 1. 
 ' ' The supreme court .... may grant writs of injunction when- 
 ever the same are necessary to prevent fraud or injustice." See, 
 also, c. 162, § 13 (prohibiting transaction by bank, on application 
 of Lank commissioners); § 19 (restraining proceedings at law by 
 creditors of insolvent bank) ; c. 171, § 10 (against life insurance com- 
 panies, etc., failing to make statements to insurance commission); 
 c. 175, § 12 (in divorce proceedings, prohibiting the husband from 
 imposing any restraint upon the personal liberty of the wife, or 
 from entering the tenement where she resides during the pendency 
 of the libel); c. 176, § 12 (to protect divorced wife's custody of 
 minor child); c. 205, § 5 (enjoining certain nuisances). 
 New Jersey. — Gen. Stats. 1895. 
 
 Pages 387, 388: No injunction against proceedings at law after 
 verdict or judgment, unless bond filed conditioned to abide such or- 
 der as the chancellor may make. 
 
 New York.-^Code Civ. Proc. (1896), §§ 602-630. 
 § 602 (being part of Code of Procedure, § 218): "Writ of injunc- 
 tion abolished and order substituted. — The writ of injunction has been 
 abolished. A temporary injunction may be granted by order, as pre- 
 scribed in this article." 
 
 § 603 (Code Proc, §' 219, first clause): Injunction^ when the right 
 thereto depends upon the nature of the action. — "Where it appears, 
 from the complaint, that the plaintiff demands and is entitled to a 
 judgment against the defendant, restraining the commission or con- 
 tinuance of an act, the commission or continuance of which durin^ 
 the pendency of the action, would produce injury to the plaintiff 
 an injunction order may be granted to restrain it." 
 
 §' 604 (amended, 1877; Code Civ. Proc, § 219): Injunction, tchen 
 
 the right thereto depends upon extrinsic facts. — "In either of the 
 
 following cases, an injunction order may also be granted in an action- 
 
 '<1. Where it appears, by affidavit, that the defendant, during: 
 
 the pendency of the action, is doing, or procuring, or suffering to be
 
 § 2G2 EQUITABLE EEMEDIES. !»« 
 
 done, or threatened^ or is about to do, or to procure, or suffer t^ be 
 done, an act, in violation of the plaintiff's rights, respecting tL<, sub- 
 ject of the action, and tending to render the judgment ineffr^, tual, 
 an injunction order may be granted to restrain him therefrom. 
 
 "2. Where it appears, by affidavit, that the defendant, 'luring 
 the pendency of the action, threatens, or is about to remove, or to 
 dispose of his property, with intent to defraud the plaintiff, an in- 
 junction order may be granted, to restrain the removal or disposi- 
 tion." 
 
 See, also, § 719 (Code Proc, § 401), plaintiff asking for order of 
 arrest, injunction, and warrant of attachment, or two of them, may 
 be required to elect between them. 
 
 § 1806 (2 Eev. Stats., 466, § 56) : In certain actions prescribed by 
 the title on "Actions Relating to Corporations," creditors may be 
 enjoined from bringing or prosecuting actions against the defend- 
 ants. 
 
 North Carolina. — Clark's Code of Civ. Proc. 
 
 § 334. Injunction as a provisional remedy is abolished, and tem- 
 porary injunction by order is substituted therefor. 
 
 Page 285: "No injunction shall be granted by any court or judge 
 in this state to restrain the collection of any tax, or any part thereof, 
 hereafter levied, nor to restrain the sale of any property for the 
 non-payment of any such tax, except such tax, or the part thereof 
 enjoined, be levied or assessed for an illegal or unauthorized pur- 
 pose, or be illegal or invalid, or the assessment be illegal or in- 
 valid." 
 
 § 338: "(1) When it shall appear by the complaint that the plain- 
 tiflE is entitled to the relief demanded, and such relief or any part 
 thereof consists in restraining the commission or continuance of some 
 act, the commission or continuance of which, during the litigation, 
 would produce injury to the plaintiff; or, 
 
 ("In an application for an injunction to enjoin a trespass on land, 
 it shall not be necessary to allege the insolvency of the defendant 
 when the trespass complained of is continuous in its nature or is 
 the cutting or destruction of timber trees";) 
 
 "(2) When, during the litigation, it shall appear by affidavit of 
 plaintiff, or any other person, that the defendant is doing, or threat- 
 ens, or is about to do, or procuring or suffering some act to be done 
 in violation of the plaintiff's rights respecting the subject of the 
 action and tending to render the judgment ineffectual, a temporary 
 injunction may be granted to restrain him therefrom; 
 
 "(3) And where, during the pendency of the action, it shall ap- 
 pear by affidavit of plaintiff or any other person, that the defend- 
 ant threatens, or is about to remove or dispose of his property, with 
 intent to defraud the plaintiff, a temporary injunction may be 
 panted to restrain such removal or disposition,'*
 
 473 INJUNCTIONS; ABSTKACT OF STATUTES. { 268 
 
 § 339: May be granted at time of commencement of action, or at 
 any time afterwards, before judgment. 
 § 341: Undertaking on injunction. 
 
 North Dakota. — Revised Code, 1899. 
 
 § 5343: "The writ of injunction as a provisional remedy is abol- 
 ished, and an injunction by order is substituted therefor." 
 
 § 5344: When temporary injunctions issued. — Practically the same 
 as North Carolina. 
 
 § 5045: "Except when otherwise provided by this chapter, a final 
 injunction may be granted to prevent the breach of an obligation 
 existing in favor of the applicant: 
 
 ' * 1. When pecuniary compensation would not afford adequate re- 
 lief. 
 
 "2. When it would be extremely diflScult to ascertain the amount 
 of compensation which would afford adequate relief. 
 
 "3. When the restraint is necessary to prevent a multiplicity of 
 judicial proceedings; or, 
 
 "4. When the obligation arises from a trust." 
 
 § 5046: "An injunction cannot be granted: 
 
 "1. To stay a judicial proceeding pending at the commencement 
 of the action in which the injunction is demanded, unless such re- 
 straint is necessary to prevent a multiplicity of such proceedings. 
 
 "2. To stay proceedings in a court of the United States. 
 
 "3. To stay proceedings in a state upon a judgment of a court of 
 that state. 
 
 "4. To prevent the execution of a public statute by officers of the 
 law for the public benefit. 
 
 "5. To prevent the breach of a contract, the performance of which 
 would not be specifically enforced. 
 
 "6. To prevent the exercise of a public or private office in a lawful 
 manner by the person in possession. 
 
 "7. To prevent a legislative act by a municipal corporation." 
 
 § 5347: Undertaking on injunction. 
 
 § 5349: Not issued to suspend business of corporation^ without no- 
 tice, unless state is a party, 
 
 Ohio.— Rev. Stats. (1897), §§ -5571-5586. 
 
 § 5572: Causes for an injunction (the usual code provisions). 
 
 § 1277: "The prosecuting attorneys of the several counties of 
 the state, upon being satisfied that the funds of the county, or any 
 public moneys in the hands of the county treasurer are about to be 
 misapplied, or that a contract in contravention of the laws of this 
 state is about to be entered into, or is being executed, or that a con- 
 tract was procured by fraud or corruption, shall apply by civil ac- 
 tion in the name of the state to a court of competent jurisdiction, 
 to restrain such contemplated misapplication of funds, and to ru- 
 strain the completion or execution of such contract."
 
 § 2G2 EQUITABLE EEMEDIES. 474 
 
 § 1278: "In case the prosecuting attorney fails, upon the written 
 request of any of the tax-payers of the county, to make the appli- 
 cation contemplated in the preceding section, such tax-payer may in- 
 stitute such civil action in the name of the state," etc. 
 
 §§ 1777, 1778: Similar provisions as to the duty of corporation 
 counsel of cities to apply for injunction, and right of tax-payers to 
 sue on his refusal. 
 
 §§ 3231-3233: To enforce labor liens on railroads, public struc- 
 tures, etc. 
 
 § 3371: To prevent discrimination, etc., by railroads. 
 
 § 4490: Assessments for county ditches not to be enjoined for 
 error. 
 
 § 53G1: Suspending proceedings on judgment or order, in favor 
 of paity seeking to vacate or modify the same (usual provision). 
 
 §' 5701: In divorce proceedings, to prevent disposal or incumbrance 
 of property to defeat right of alimony. 
 
 § 5705: To protect married woman's property from conversion or 
 waste by husband. 
 
 §§ 5848-5851: Provides for actions to enjoin the illegal levy of 
 taxes and assessments, or the collection of either; parties to such 
 actions; plaintiff in action to enjoin collection, who admits a part 
 to have been legally levied, must first pay or tender the sum admit- 
 ted to be due. 
 
 §§ 6786-6788: Injunction ancillary to proceedings in quo warranto 
 against banking association. 
 
 Oklahoma. — Rev. Stats. 1903. 
 
 § 4424: "The injunction provided by this code is a command to 
 refrain from a particular act. It may be the final judgment in an 
 action, or may be allowed as a provisional remedy. The writ of in- 
 junction is abolished." 
 
 § 4425: Temporary injunctions. Same as North Carolina, adding: 
 "It may, also, be granted in any case where it is specially author- 
 ized by statute." 
 
 § 4427: "If the court or judge deem it proper that the defendant, 
 or any party to the suit, should be heard before granting the in- 
 junction, it may direct a reasonable notice to be given to such party 
 to attend for such purpose, at a specified time and place, and may, 
 in the meantime, restrain such party." 
 
 §§ 4429, 4435: Bond for injunction. 
 
 § 4440: "An injunction may be granted to enjoin the illegal levy 
 of any tax, charge or assessment, or the collection of any illegal 
 tax, charge or assessment, or any proceeding to enforce the same; 
 and any number of persons whose property is affected by a tax or 
 assessment so levied may unite in the petition filed to obtain such 
 injunction. An injunction may be granted in the name of the ter 
 xitory to enjoin and suppress the keeping and maintaining of »•
 
 475 INJUNCTlOiNS; ABSTKACT OF STATUTES. S 262 
 
 common nuisance. The petition therefor shall be verified by the 
 county attorney of the proper county, or by the attorney general, 
 upon information and belief, and no bond shall be required." 
 
 Oregon. — Bellinger & Cotton's Codes and Stats. 
 
 § 417: "An injunction is an order requiring a defendant in a suit 
 to refrain from a particular act; it is only allowed as a provisional 
 remedy, and when a decree is given enjoining a defendant, such 
 decree shall be effectual and binding on such defendant without 
 other proceeding or process, and may be enforced if necessary as 
 provided in section 415." 
 
 § 418: Undertaking on injunction. 
 
 § 343: Individual may enjoin private nuisance when legal remedy 
 inadequate. 
 
 Pennsylvania. — Pepper & Lewis' Digest (1894). 
 
 Page 3887, § 14: Judgment of ouster and exclusion in quo war- 
 ranto proceedings to be enforced by injunction. 
 
 Supplement, 1894-97. 
 
 Page 614, § 4: Injunction to prevent counterfeiting of trades 
 union labels. 
 
 Rhode Island. — Gen. Laws, 1896. 
 
 Chapter 161, § 2: To prevent discrimination by common carriers. 
 
 Chapter 178, §§ 42, 43, 46, 47, 49, 67, 70, 73: Against banks and 
 institutions for savings. 
 
 Chapter 181, §§ 5-9: Against domestic insurance companies. 
 
 Chapter 195, § 16: Temporary injunctions in divorce proceedings. 
 
 Chapter 274, §§ 19, 20: To restrain insolvents from leaving the- 
 state, etc. 
 
 South Carolina. — Code Civ. Proc, $ 240 (usual threefold code pro- 
 vision). 
 
 South Dakota. — iCiv. Code, §} 5850-5853 (same as California Civil 
 Code). 
 
 Code Civ. Proc, §§ 6190-6198. 
 
 g 6191 (usual threefold code provision). 
 
 In aid of mortgagees — § 6679: "The court may, by injunction, on 
 good cause shown, restrain the party in possession from doing any 
 act to the injury of real property during the existence of the lien 
 or foreclosure of a mortgage thereon and until the expiration of the 
 time allowed for redemption." 
 
 Pol. Code, § 2673: Injunction to restore possession of mining prop- 
 erty taken by force, fraud or threats. 
 
 Tennessee. — Code, 1896. 
 § 5161: Injunction against waste. 
 
 § 1004: "No injunction or petition for mandamus shall be granted 
 by any judge or court in this state^ or aaj bill or petition for man*
 
 i 2G2 EQUITABLE REMEDIES. 47b 
 
 damns, alleging the illegality or unconstitutionality of any of the 
 revenue laws of this state, restraining any officer or officers charged 
 with the collection of the public taxes of this state, except upon a 
 final hearing of any cause in the court of last resort, if an appeal 
 should be taken to that court." 
 § 6256: Bond for injunction. 
 
 Texas.— Sayles' Eev. Stats. (188S), arts. 2873-2898. 
 
 "Art. 2873. Writs of, granted, when. — Judges of the district and 
 county courts may, either in term time or vacation, grant writs of 
 injunction, returnable to said courts, in the following cases: 
 
 "1. Where it shall appear that the party applying for such writ 
 is entitled to the relief demanded, and such relief or any part thereof 
 requires the restraint of some act prejudicial to the applicant. 
 
 "2. Where, pending litigation, it shall be made to appear that a 
 party is doing some act respecting the subject of litigation, or threat- 
 ens, or is about to do some act, or is procuring or suffering the 
 same to be done in violation of the rights of the applicant, which 
 act would tend to render judgment ineffectual. 
 
 "3. In all other cases where the applicant for such writ may show 
 himself entitled thereto under the principles of equity." 
 
 "Art. 2874. None, against a judgment, except, etc. — No injunc- 
 tion shall be granted to stay any judgment or proceedings at law, 
 except so much of the recovery or cause of action as the complainant 
 shall in his petition show himself equitably entitled to be relieved 
 against, and so much as will cover the costs." 
 
 "Art. 2875. I?ijunciion to stay execution within twelve months, 
 unless, etc. — No injunction to stay an execution upon any valid and 
 subsisting judgment shall be granted after the expiration of one 
 year from the rendition of such judgment, unless it be made to ap- 
 pear that an application for such injunction has been delayed in 
 consequence of the fraud or false promises of the plaintiff in the 
 judgment, or unless for some equitable matter or defense arising 
 after the rendition of such judgment. If it be made to appear that 
 the applicant was absent from the state at the time such judgment 
 was rendered, and was unable to apply for such writ within the 
 time aforesaid, such injunction may be granted at any time within 
 two years from the date of the rendition of the judgment." 
 
 "Art. 2898. Principles of equity applicable. — The principles, 
 practice and procedure governing courts of equity shall govern pro- 
 ceedings in injunctions when the same are not in conflict with th« 
 provisiona of this title or other law." 
 
 See, also, art. 2868 (injunction pending divorce suit, restraining 
 husband from disposing of property). 
 
 Act of May 12, Aug. 14, 1888 (Supplement to Sayles' Civ. Stat., 
 axt. 2S73a), is important. "The full right, power, and remedy of
 
 477 IXJUACTIOXS; ABSTRACT OF STATUTES. § 262- 
 
 injunction may be resorted to and invoked by the state at the in- 
 stance of the county or district attorney or attorney-general, to pre- 
 vent, prohibit, or restrain the violation of any revenue or penal law 
 of this state." 
 
 Utah.— Eev. Stats. (18S8), §§ 3057-30G3: Taken from the Cali- 
 fornia Code of Civil Procedure, §§ 525-533, with some changes. 
 
 See, also, § 153 (taken from North Dakota (1895), § 5584) as to 
 restraining foreclosure by advertisement of chattel mortgage, whea 
 the mortgagor ' ' has a legal counterclaim or any other valid defense 
 against the collection of the whole or any part of the amount claimed 
 to be due on such mortgage." 
 
 § 1219: Injunction in statutory action by wife for separate main- 
 tenance restraining husband from disposing of or incumbering real 
 estate. 
 
 § 2683. "Injunction to restrain collection of tax. — No injunc- 
 tion shall be granted by any court or judge to restrain the collection 
 of any tax or any part thereof, nor to restrain the sale of any prop- 
 erty for the non-payment of the tax, except where the tax, or some 
 part thereof sought to be enjoined, is illegal, or is not authorized 
 by law, or the property is exempt from taxation. If the payment 
 of a part of a tax is sought to be enjoined, the other part must b» 
 paid or tendered before action can be commenced." 
 
 § 3266 (Cal. Code Civ. Proc, § 706): To restrain waste during 
 period of redemption from execution. 
 
 § 3281: Injunction in connection with receiver, in proceeding* 
 supplementary to execution. 
 
 § 3518 (Cal. Code Civ. Proc, § 745): Injunction to restrain waste 
 pen-ding foreclosure of a mortgage, or after a sale on execution, be- 
 fore a conveyance. 
 
 Vermont. — Stats, (1894), §§ 954-961 (relating to injunction bonds): 
 § 2688 (in suits for divorce, restraining husband from conveying 
 such portion of his property as is necessary to secure the alimony. 
 See Foster v. Foster, 56 Vt. 540; Curtis v. Gordon, 62 Vt. 340, 495, 
 20 Atl. 820; Noyes v. Hubbard, 64 Vt. 302, 35 Am. St. Eep. 
 928, 23 Atl. 727, 15 L. E. A. 394; Stearns v. Stearns, 66 Vt. 187, 
 44 Am. St. Kep. 836, 28 Atl. 875); § 3893 (against abandoning or 
 discontinuing railroad stations); §§ 4208, 4209 (on application of 
 insurance commissioners); §§ 4522 et seq. (to abate liquor nuisances). 
 
 Virginia. — Code (1887), §§ 3434-3446; Supplement (1898), § 3438a. 
 "§ 3434. Injunction to protect plaintiff in suit for specific property. 
 — An injunction may be awarded to protect any plaintiff in a suit 
 for specific property, pending either at law or in equity, against 
 injury from the sale, removal, or concealment of such property." 
 
 See, also, § 1081 (to stay proceedings in condemnation of land for 
 internal improvements) ; § 2495 (to protect lien for advance on
 
 f 2(;2 EQUITABLE EEMEDIES. 478 
 
 crops) ; § 36-56 (to restrain sale of exempt property, or garnishment 
 of wages, of a "householder"). 
 
 Washington.— Ballinger '8 Codes and Statutes (1897), §§ 5431-5452. 
 
 § 5432: Injunction, when granted. Taken from Indiana, § 1148. 
 
 "§ 5433. Injunction for malicious erection of structures. An injunc- 
 tion may be granted to restrain the malicious erection, by any owner 
 or lessee of land, of any structure intended to spite, injure or annoy 
 an adjoining proprietor. And where any owner or lessee of land 
 has maliciously erected such a structure with such intent, a manda- 
 tory injunction will lie to compel its abatement and removal." 
 
 § 5661: Injunction in action for nuisance, when the remedy of war- 
 rant to abate the nuisance is inadequate. 
 
 "§ 5658. Injunction to prevent waste. When any two or more per- 
 sons are opposing claimants under the laws of the United States to 
 any land in this state, and one is threatening to commit upon such 
 land waste which tends materially to lessen the value of the in- 
 heritance, and which cannot be compensated by damages, and there 
 is imminent danger that unless restrained such waste will be com- 
 mitted, the party, on filing his complaint and satisfying the court 
 or judge of the existence of the facts, may have an injunction to 
 restrain the adverse party." See Arment v. Hensel, 5 Wash. 152, 
 154, 31 Pac. 464; McBride v. Board of Commrs., 44 Fed. 17. 
 
 Injunction in proceedings supplemental to execution: See § 5323. 
 
 Injunction in favor of party seeking to vacate or modify a judg- 
 ment or order, suspending proceedings or the whole or part thereof: 
 See § 5160. 
 
 § 6119: Kestraining order against executor or administrator, pend- 
 ing application to prove a lost or destroyed will. 
 
 "§ 5678. Tender condition precedent to action to enjoin lax collec- 
 tion. Hereafter no action or proceeding shall be commenced or 
 instituted in any court of this state to enjoin the sale of any prop- 
 erty for taxes, or to enjoin the collection of any taxes, or for the 
 recovery of any projjerty sold for taxes, unless the person or corpora- 
 tion desiring to commence or institute such action or proceeding 
 shall first pay, or cause to be paid, or shall tender to the ofiicer en- 
 titled under the law to receive the same, all taxes, penalties, inter- 
 est and costs justly due and unpaid from such person or corporation 
 on the property sought to be sold or recovered." 
 
 "§ 5679: What complaint must state. In all actions to enjoin the 
 collection of any tax, and in all actions for the recovery of any 
 property sold for taxes, the complainant must state and set forth 
 sjjecially in his complaint the tax that is justly due, with penalties, 
 interest and costs, the tax alleged to be illegal, and point out the 
 illegality thereof; that the taxes for that and previous years have 
 been paid." ....
 
 479 INJUNCTIONS; ABSTRACT OF STATUTES. i 26E 
 
 **§' 5680, Construction. The provisions of sections 5678 and 5679 
 shall be construed as imposing additional conditions upon the power 
 of the court or judge in granting injunctions to those already im- 
 posed." 
 
 § 3714: Mandatory injunction authorized in proceedings to es- 
 tablish diking districts; § 3754, in proceedings to establish drainage 
 districts. 
 
 West Virginia.— Code 1899, c. CXXXIII. 
 
 Page 889: "An injunction may be awarded to enjoin the sale of 
 property set apart as exempt in the case of a husband or parent, 
 under chapter forty-one, or to protect any plaintiff in a suit for 
 specific property, pending either at law or in equity, against injury 
 from the sale, removal or concealment of such property." 
 
 Page 890: Injunction bond. 
 
 Chapter XCVI, p. 762; Injunction may issue to prevent sale of 
 property for usurious debt. 
 
 Page 1134: Injunctions against waste of natural gas. 
 
 Wisconsin,— Stats. 1898. 
 
 § 2773: Writ of injunction is abolished. "The injunction pro- 
 vided by law is a command to refrain from a particular act." 
 
 § 2774: "Where it shall appear by the complaint that the plain- 
 tiff is entitled to the judgment demanded and such judgment, or 
 any part thereof, consists in restraining the commission or con- 
 tinuance of some act the commission or continuance of which, during 
 the litigation, would produce injury to the plaintiff; or when, during 
 the litigation, it shall appear that the defendant is doing, or threat- 
 ens, or is about to do, or is procuring or suffering some act to be 
 done in violation of plaintiff's rights respecting the subject of the 
 action and tending to render the judgment ineffectual, a temporary 
 injunction may be granted to restrain such act. And when, during 
 the pendency of an action, it shall appear by affidavit that the de- 
 fendant threatens or is about to remove or dispose of his property 
 with intent to defraud his creditors, a temporary injunction may 
 be granted to restrain such removal or disposition." 
 
 § 2775: When granted to defendant. 
 
 § 2778: Bond for injunction. 
 
 § 2780: Not granted to suspend ordinary business of corporation 
 without notice. 
 
 § 3170: "The circuit courts have jurisdiction of actions for waste 
 and may grant injunctions to stay or prevent waste." 
 
 § 3180: "The circuit courts shall have jurisdiction of actions to 
 recover damages for and to abate private nuisances or a public nui- 
 sance from which any person suffers a private or special injury pecu- 
 liar to himself, so far as necessary to protect the rights of such per- 
 son, and to grant injunctions to prevent the same; and in case such 
 nuisance may work an irreparable injury, interminable litigation, a
 
 { 262 EQUITABLE REMEDIES. 480 
 
 multiplicity of actions, or either, or the injury is continuous or 
 constantly recurring, or there is not an adequate remedy at law^ 
 or the injury is not susceptible of adequate compensation in dam- 
 ages at law, then an action in equity may be maintained and an in- 
 junction issued therein, and an equitable action may be brought be- 
 fore the nuisance or the infringement of plaintiff's right is estab- 
 lished at law." 
 
 Wyoming.— Eev, Stats. 1899. 
 
 § 4038: "The injunction provided by this chapter is a command 
 to refrain from a particular act; it may be the final judgment in an 
 action or may be allowed as a provisional remedy; and when so al- 
 lowed it shall be by order." 
 
 § 4039: "When it appears by the petition that the plaintiff is en- 
 titled to the relief demanded, and such relief, or any part thereof^ 
 consists in restraining the commission or continuance of some act, 
 the commission or continuance of which, during the litigation, would 
 produce great or irreparable injury to the plaintiff, or when, during 
 the litigation, it appears that the defendant is doing, or threatens 
 or is about to do, or is procuring or suffering to be done, some act 
 ia violation of the plaintiff's rights, respecting the subject of the 
 action, and tending to render the judgment ineffectual, a temporary 
 order may be granted restraining such act; and such order may also 
 be granted in any case where it is specially authorized by statute." 
 § 4041: Court may require notice of application, 
 § 4043: Undertaking on injunction, 
 
 § 4053: "A defendant may obtain an injunction upon an answer 
 is the nature of a counterclaim, and he shall proceed in the man- 
 ner prescribed in this chapter," 
 
 § 4172: "District courts shall have jurisdiction to enjoin the ille- 
 gal levy of taxes and assessments, or the collection of either, and of 
 actions to recover back such taxes or assessments as have been col- 
 lected, without regard to the amount thereof; but no recovery shall 
 be had unless the action be brought within one year after the taxes 
 or assessments are collected." 
 
 § 4175: "If the plaintiff, in an action to enjoin the collection of 
 taxes or assessments admit a part thereof to have been legally 
 levied, he must first pay or tender the sum admitted to be due; if an 
 order of injunction be allowed, an undertaking must be given as in 
 other cases; and the injunction shall be a justification of the ofiicer 
 charged with the collection of such taxes or assessments for not col- 
 lecting the same," 
 
 S 3802: "The party seeking to vacate or modify a judgment or 
 order may obtain an injunction suspending proceedings on the 
 whole or a part thereof, which injunction may be granted by the 
 eourt or any judge thereof when it is rendered probable by affidavit 
 or by exhibition of the record that the party is entitled to have 
 SNoh judgment or order vacated or modified."
 
 481 INJUNCTIONS; GENERAL PRINCIPLES. § 263 
 
 ^ 263. Fundamental Principle. — "In determining 
 whetlier an injunction will be issued to protect any 
 right of property, to enforce any obligation, or to pre- 
 vent any wrong, there is one fundamental principle of 
 the utmost importance, which furnishes the answer to 
 any questions, the solution to any difficulties which 
 may arise. This principle is both affirmative and neg- 
 ative, and the affirmative aspect of it should never be 
 lost sight of, any more than the negative side.^ The 
 general principle may be stated as follows: Wherever 
 a right exists or is created, by contract, by the owner- 
 ship of property or otherwise, cognizable by law, a tio- 
 Uition of that right icill be prohibited^ unless there are 
 other considerations of policy or expediency which for- 
 bid a resort to this prohibitive remedy. The restrain- 
 ing poicer of equity extends, therefore, through the 
 ichole range of rights and duties ichich are recognized 
 by the law, and would be applied to every case of in- 
 tended molation, were it not for certain reasons of ex- 
 pediency and policy ivhich control and limit its exer- 
 cise.* This jurisdiction of equity to prevent the com- 
 mission of wrong is, however, modified and restricted 
 by considerations of expediency and of convenience 
 which confine its application to those cases in which 
 the legal remedy is not full and adequate. Equity will 
 not interfere to restrain the breach of a contract, or 
 
 8 "A comparison of the English and American reports will show 
 that our courts have dwelt too much on the negative side of this 
 principle, and have almost ignored its affirmative aspect. While the 
 English judges have gradually but steadily enlarged the scope of the 
 injunction, the tendency of the American decisions has been to nar- 
 row it even within the well-established limits of the jurisdiction. If 
 'an ounce of prevention is worth a pound of cure,' this tendency is 
 clearly opposed to the best interests of society": Pom. Eq. Jur., } 
 1338, and note. 
 
 4 Quoted in Tuchman v. "Welch, 42 Fed. 548, 559. 
 Equitable Kemediea, VoL 1—31
 
 S 204 EQUITABLE REMEDIES. 482 
 
 the comniission of a tort, or the violation of any right, 
 when the legal remedy of compensatory damages would 
 be complete and adequate. The incompleteness and 
 inadequacy of the legal remedy is the criterion which, 
 under the settled doctrine, determines the right to the 
 equitable remedy of injunction."^ 
 
 § 264. Preliminary or Interlocutory Injunctions. — Prcliiri- 
 inary or interlocutory injunctions are granted to pre- 
 serve the property in statu quo pending the determina- 
 tion of the suit.^ The right to such relief depends upon a 
 showing of irreparable injury, and rests within the sound 
 discretion of the court.'' It is not necessary that the 
 
 5 Pom. Eq. Jiir., § 1338. See, also, Watson v. Sutherland, 5 "Wall. 
 74, 18 L. ed. 580; North v. Peters, 138 U. S. 271, 11 Sup. Ct. 346, 34 
 L. ed. 936; Johnson v. Conn. Bank, 21 Conn. 148; Powell v. Foster, 
 39 Ga. 790; Mayor & Aldermen of Jersey City v. Gardner, 33 N. J. 
 Eq. 622. 
 
 "The general eflfect produced by some text-books and judicial 
 opinions might lead the reader to suppose that the main object of 
 the writers or the judges was to show when injunctions could not 
 be granted. The full force and effect of this most beneficial rem- 
 edy, and the freedom with which it is granted by courts of the high- 
 est authority, can only be ascertained by an actual examination of 
 the decided cases": Pom. Eq. Jur., § 1338, note. 
 
 « "The controlling reason for the existence of the right to issue a 
 preliminary injunction is that the court may thereby prevent such 
 a change of the conditions and relations of persons and property 
 during the litigation as may result in irremediable injury to some of 
 the parties before their claims can be investigated and adjudicated": 
 City of Newton v. Levis, 79 Fed. 715, 25 C. C. A. 561, 49 U. S. App. 
 266, per Sanborn, Cir. J. See, also, Blount v. Societe Anonyme du 
 Filtre, 53 Fed. 98, 6 U. S. App. 335, 3 C. C. A. 455. 
 
 7 Southern Pac. Co, v. Earl, 82 Fed; 691, 27 C, C. A. 185; Sanitary 
 Keduction W^orks v. California Eeduction Co., 94 Fed. 693; Strasser 
 V. Moonelis, 108 N. Y. 611, 15 N. E. 730 (not reviewable unless com- 
 plaint fails to state grounds for final relief); Ward v. Sweeney, 106 
 Wis. 44, 82 N. W. 169 ("That discretion is of the broadest, and is 
 seldom interfered with"); Eeddall v. Bryan, 14 Md. 444, 74 Am. Dec. 
 550; North Carolina R. Co. v. Drew, 3 Woods, 674, Fed. Gas. No. 
 17,433.
 
 4S3 INJUNCTIONS; GENERAL PRINCIPLES. § 264 
 
 court be satisfied tliat the plaintiff will ceilainlj prevail 
 on the final hearing; "a probable right, and a probable 
 danger that such right will be defeated, without the 
 special interposition of the court," is all that need be 
 shown.^ When there is grave doubt, however, as to the 
 complainant's right, preliminary relief will generally be 
 denied.® It should not, save in exceptional circum- 
 stances, be used for the purpose of taking property out 
 of the possession of one party and giving it to another.^® 
 
 ' ' The final injunction is in many cases matter of strict right, 
 and granted as a necessary consequence of the decree made in the 
 cause. On the contrary, the preliminary injunction, before answer, 
 is a matter resting altogether in the discretion of the court, and 
 ought not to be granted unless the injury is pressing and the delay 
 dangerous": New York Printing & Dyeing Establishment y. Fitch, 
 I Paige, 97. 
 
 8 Georgia v. Brailsford, 2 Dall. 402, 1 L. ed. 433; Southern Pac. Co. 
 V. Earl, 82 Fed. 691, 27 C. C. A. 185; Sanitary Reduction Works y. 
 California Reduction Co., 94 Fed. 693; Great "Western Ry. Co. t. 
 Birmingham Ry. Co., 2 Phill. Ch. 602. "The rule is well settled 
 that evidence sufficient to authorize a granting of a preliminary 
 injunction or to warrant the refusal thereof may not be sufficient 
 to maintain a like decision upon a final trial of the action on its 
 merits": Colusa Parrot Min. & S. Co. v. Barnard, 28 Mont. 11, 72 Pae. 
 45. Of course a preliminary injunction should be denied when the 
 bill or complaint states no ground for final relief: McHenry v. Jewett, 
 90 N. Y. 58. 
 
 9 Home Ins. Co. v. Nobles, 63 Fed. 642; Mitchell v. 'Colorado 
 Fuel & Iron Co., 117 Fed. 723; Huntington v. City of New York, 118 
 Fed. 683 (complainant must show reasonable probability of ultimate 
 success); Newark Aqueduct Board v. Passaic, 46 N. J. Eq. 552, 20 
 Atl. 54, 22 Atl. 55 (doubtful whether nuisance existed); Atlantic 
 C. W. W. Co. V. Consumers' W. Co., 44 N. J. Eq. 527, 15 Atl. 581; 
 Roberts v. Scull, 58 N. J. Eq. 396, 43 Atl. 583; Hicks v, American 
 Natural Gas Co., 207 Pa. St. 570, 57 Atl. 55. See, also, Connolly v. 
 Van Wyck, 35 Misc. Rep. 746, 72 N. Y. Supp. 382; McHenry v. Jewett, 
 
 90 N. Y. 58. 
 
 10 "Possession is prima facie evidence of rightful title, because it 
 ia one of the elements of title, is sacred, and no court can in any 
 form of proceeding take it from a man without a hearing, without 
 overthrowing the maxim that no man shall be condemned in person
 
 I 264 EQUITABLE REMEDIES. 484 
 
 In the exercise of its discretion, the court may consider 
 the injury to be done the adverse parties by its action; 
 and if the questions involved are grave and difficult, 
 and the injury to the moving party will be immediate, 
 certain, and great if relief is denied, while the loss or 
 inconvenience to the opposing party will be compara- 
 tively small if it is granted, a preliminary injunction 
 may issue.^^ On the other hand, where the injury to 
 the complainant will not be irreparable from a refusal, 
 while the defendants might suffer great injury for 
 which they will be without adequate remedy from the 
 granting of the writ, it will be refused.^^ 
 
 A distinction is made in some jurisdictions between 
 a restraining order issued on ex parte application, and 
 a preliminary injunction issued upon an order to show 
 cause. It is said that the former should not issue ''ex- 
 cept on a moral certainty of an irreparable injury if 
 it be refused."*^ In many of the states the right to pre- 
 liminary relief is governed by statute. 
 
 or deprived of property without a day in court and due process": 
 Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271, 36 L. E. A. 566, 
 per Brannon, J. See, also, Cosmos Exploration Co. v. Gray Eagle 
 Oil Co., 104 Fed. 20; State v. Graves, 66 Neb. 17, 92 N. W. 144; For- 
 man v. Healey, 11 N. D. 563, 93 N. W. 866; Farmers' E. Co. v. Eeno 
 O. C. & P. Ey. Co., 53 Pa. St. 224. 
 
 U Allison V. Corson, 88 Fed. 581, 32 C. C. A. 12; City of Newton 
 V. Levis, 79 Fed. 715, 49 U. S. App. 266, 25 C. C. A. 161; Cohen v, 
 Delavina, 104 Fed. 946; Denver & R. G. E. Co. v. United States, 124 
 Fed. 156, 59 C C. A. 579; Packard v. Thiel College (Pa.), 56 Atl. 801). 
 
 12 New York Printing & Dyeing Establishment v. Fitch, 1 Paige, 
 97; Ogden v. Kip, 6 Johns. Ch. 160. See, also, Booraem v. North 
 Hudson Co. E. Co., 40 N. J. Eq. 557, 5 Atl. 106 (no urgent necessity). 
 For specific rules as to the use of preliminary injunctions, see the 
 chapters following, passim; especially the chapters on Trespass, 
 Nuisance, Patent Rights, Mandatory Injunctions, etc. 
 
 13 Eyan v. Seaboard & E. E. Co., 89 Fed. 385 ("a restraining 
 order in anticipation of the hearing on a motion for an injunction 
 is a serious exercise of power. It should not be granted except upon 
 the moral certainty of an irreparable injury, if it be refused. It
 
 485 INJUNCTIONS- EQUITABLE INTEKESTS. § 263 
 
 § 265. Injunctions to Protect Purely Equitable Estates or 
 Interests, and in Aid of Purely Equitable Remedies. — "The 
 jurisdiction to grant injunctions restraining acts in vio- 
 lation of trusts and fiduciary obligations, or in viola- 
 tion of any other purely equitable estates, interests, or 
 claims in and to specific property, is really commensu- 
 rate with the equitable remedies given to enforce trusts 
 and fiduciary duties, or to establish and enforce any 
 other equitable estates, interests, or claims, with respect 
 to specific things, whether lands, chattels, securities, 
 or funds of money, or to relieve against mistake, or 
 fraud done or contemplated with respect to such things. 
 In all such cases the question whether the remedy at 
 law is adequate cannot arise; much less can it be the 
 criterion by which to determine whether an injunction 
 can be granted; for there is no remedy at law. Since 
 the estate, interest, or claim of the complainant is 
 purely equitable, it is exclusively cognizable by equity; 
 and if its existence is shown, a court of equity not only 
 has the jurisdiction, but is bound to grant every kind 
 of remedy necessary to its complete establishment, 
 protection, and enforcement according to its essential 
 nature. Many breaches of trust are of such a nature 
 that, if accomplished, they would completely defeat the 
 right of the beneficiary to the specific trust property. 
 The equitable reliefs against mistake or fraud with re- 
 spect to specific equitable property, and the equitable 
 remedies of all kinds to enforce trusts, express or by 
 operation of law, and fiduciary duties concerning spe- 
 cific property, and to enforce any other equitable es- 
 tate, interest, lien, or right in or over specific property, 
 would be of comparatively little practical value, unless 
 
 should not be continued when it be made to appear that such a 
 result is not imminent.") For a statement of the distinction, see 
 Wetzstein v. Boston & M. Consol. C. & S. M. Co., 25 Mont. 135, 63 
 Pac. 1043, 1044.
 
 i Ma EQUITABLE REMEDIES. •tse 
 
 the court could by injunction restrain the alienation, 
 transfer, or encumbrance of such property, and all 
 other modes of dealing with it which would prejudice 
 the rights of the complainant, and prevent him from 
 acquiring the title, or from enjoying his estate, or from 
 enforcing his claim, or from receiving the full benefits 
 of his final relief.^ ^ It may therefore be stated as a 
 general proposition, that whenever the equitable relief 
 against mistake or fraud with respect to specific prop- 
 erty, or the equitable remedy of enforcing trusts or 
 fiduciary duties concerning specific property, or of en- 
 forcing any other equitable estates, interests, or claims 
 in or to specific property, requires the aid of an injunc- 
 tion, a court of equity has jurisdiction, and will exer- 
 cise that jurisdiction, to grant an injunction, either 
 l^ending the suit or as a part of the final decree, to re- 
 strain a breach of trust or of fiduciary duty, or to re- 
 strain an alienation, transfer, assignment, encumbrance, 
 or other kind of dealing with the property, which would 
 be in violation of the trust or fiduciary duty, or in 
 fraud of the complainant's rights, and which would 
 therefore interfere with and prejudice the ultimate 
 remedies to which he may be entitled with respect to 
 such property. The particular instances to which this 
 doctrine is applied are almost numberless, and extend 
 through the entire range of equitable remedies against 
 mistake and fraud, or to enforce trusts and fiduciary 
 
 14 "It is true that in suits concerning land, the statute authorizing 
 a notice of lis pendens to be filed affords some security to the com- 
 plainant against transfers and encumbrances pending suit. But 
 this statute does not affect the truth nor generality of the prop- 
 osition contained in the text. At the utmost, it only shows that 
 in such cases ' the aid of an injunction is not required. ' But the notice 
 of lis pendens is, at best, only a partial relief; it does not prevent a 
 transfer; it does not even obviate the necessity of an injunction in 
 many suits concerning land; and it does not generally extend to other 
 •nits at all": Pom. Eq. Jur., § 1339, and note.
 
 48T INJUNCTIONS— EQUITABLE INTEBEST3. f 265 
 
 duties, or to establish and enforce other equitable es- 
 tates, interests, liens, and primary rights in and to 
 specific property of any kind or form."^^ 
 
 § 266. Instances; to Restrain Breaches of Trust. — Insults 
 by a beneficiary against his trustee, an injunction, if 
 needed, will be granted as a matter of course.^^ Thus, 
 a wrongful alienation or encumbrance of land which 
 is the subject-matter of the trust,^"^ or a payment of 
 money in violation of the trust,^* or a sale in violation 
 of conditions imposed by the instrument creating the 
 trust,^^ or a sale with conditions attached by the trustee 
 which are unreasonable and tend to depreciate the prop- 
 erty,^'* or waste and mismanagement,^^ may be en- 
 
 18 Pom. Eq. Jur., § 1339. 
 
 16 Pom. Eq. Jur., §■ 1340, and note. See Williams v. Tozer, 185 Pa. 
 St. 302, 64 Am. St. Eep. 650 (restraining acts in excess of his powers). 
 
 17 McCreary v. Gewinner, 103 Ga. 528, 29 S. E. 960; Lee v. Simp- 
 son, 37 Fed. 12, 2 L. E. A. 659 (threatened conveyance to state; pre- 
 liminary injunction). To restrain sale of trust property on execu- 
 tion against the trustee: Hawkins v. Willard (Tex. Civ. App.), 3S 
 S. W. 365, citing Pom. Eq. Jur., §§ 1339, 1340. 
 
 18 Reeve v. Perkins, 2 Jacob & W. 390; State v. Maury, 2 Del. Ch. 
 141; Drake v. Wild, 65 Vt. 611, 27 Atl. 427 (against payment of 
 legacies to the detriment of the trust estate commingled by the 
 executor with other moneys); Coleman v. McGrew (Neb.), 99 N. W. 
 663. But when the defendants, to whom money has been paid in 
 alleged breach of trust, do not admit the trust, and its existence 
 is the question to be decided at the hearing, an interlocutory in- 
 junction is not proper: Bank of Turkey v. Ottoman Co., L. E. 2 Eq. 
 366. 
 
 19 Pool V. Potter, 63 111. 533 (sale without giving the bond re- 
 quired by the deed of trust). 
 
 20 Dance v. Goldingham, L. E. 8 Ch. 902 (whether such effect ia 
 actually produced or not). 
 
 21 Cohn V. Morris, 70 Ga. 313 (assignee for benefit of creditors). 
 In such cases a receiver is often appointed: Id.; ante, §§ 89, 90. An in- 
 junction will be continued until the hearing to retain control of & 
 trust fund in dispute, where the plaintiff in the action seeks to have 
 a judgment reformed and the validity of an assignment determined,
 
 f 267 EQUITABLE EEMEDIES. 488 
 
 joined. The creator of the trust, at least of a charita- 
 ble trust, may sometimes be entitled to the relief; thus, 
 it is held that the founder of a charity may restrain the 
 diversion of the property donated from the charitable 
 uses for which it was given.^^ 
 
 § 237. To Restrain Violations of Confidence. — Anal- 
 ogous to the jurisdiction to restrain breaches of trust 
 is the jurisdiction, well established but somewhat un- 
 determined in its limits, to restrain a person from the 
 disclosure or unfair use of knowledge which has come 
 to him in the course of a confidential employment by 
 another. A common instance in England is where a 
 solicitor is restrained from communicating to a party 
 who is suing a former client, documents or matters of 
 evidence which have come to his possession or knowl- 
 edge in the course of his employment for such client ^^ 
 So, a confidential clerk or agent, who uses the informa- 
 tion which he obtained in the course of his employment 
 
 alleging that the same was procured by fraud which was denied in 
 the answer, and where the testimony bearing upon the question is 
 conflicting: Morris v. Willard, 84 N. C. 293. 
 
 22 Mills V. Davison, 54 N. J. Eq. 659, 55 Am. St. Eep. 594, 35 Atl. 
 1072, 35 L. E. A. 113. 
 
 23 Lewis V. Smith, 1 Macn. & G. 417 (the subsequent client also 
 restrained from making use of such documents or evidence) ; Davii 
 V. Clough, 8 Sim. 262; Little v. Kingswood Colliery Co., L. E. 20 
 Ch. D. 733 (the jurisdiction "is founded upon the principle that a 
 man ought to be restrained from doing any act contrary to the duty 
 which he owes to another"; and "will be exercised at tho instance 
 of the former client irrespective of the question whether the solici- 
 tor was discharged by him or discharged himself, whenever the 
 transaction in reference to which the injunction is sought so flows 
 out of or is connected with that in which the solicitor was formerly 
 retained that the same matter of dispute will probably arise"). On 
 the same principle, it was held that a plaintiff who obtained informa- 
 tion from the production of documents by his adversary was not at 
 liberty to make it public, and an injunction would, if necessary, be 
 granted to restrain him: Williams v. Prince of Wales Life etc. Co., 
 23 Beav. 340.
 
 489 INJUNCTIONS— EQUITABLE INTERESTS. § 208 
 
 for the purpose of securing, for himself, without his em- 
 ployer's knowledge, the renewal of the lease of his em- 
 ployer's business premises, which is about to expire, and 
 for which his employer is negotiating, may be enjoined 
 from proceeding to recover the premises.^'' Partly on 
 the ground of breach of confidence was rested the de- 
 cision in a striking recent English case, where a pho- 
 tographer was restrained from exhibiting and selling 
 to the public copies of the photographs of a woman 
 which he had taken for her own use.^^ 
 
 § 268. Same ; Disclosure of Trade Secrets. — An important 
 application of the principle of the last section is seen 
 in the well-established jurisdiction^^ to enjoin the dis- 
 closure or use of secrets of trade, such as secret pro- 
 cesses of manufacture, communicated to one in the 
 course of a confidential employment Different grounds 
 have, indeed, been assigned for the exercise of the ju- 
 risdiction;-^ in some cases it has been referred to a 
 
 24 Gower v. Andrew, 59 Cal. 119, 43 Am. Eep. 242. On a familiar 
 principle, the agent is a constructive trustee for the principal in 
 Bueh a case, and may be ordered to convey: See Pom. Eq. Jur., § 
 1050. 
 
 25 Pollard V. Photographic Co., 40 Ch. D. 345. The decision was 
 based partly on the ground of breach of an implied contract not to 
 use the photographic negative for such purposes. There is nothing 
 in the case to support the so-called "right of privacy"; as to which 
 see post, c. 29. 
 
 26 In the earliest reported case on the subject, Newbery v. James, 
 2 Mer. 446, Lord Eldon refused to enjoin a breach of an agreement 
 not to impart a secret, unpatented process of manufacture, on the 
 ground that the court could not, without having it disclosed, as- 
 certain whether it had been infringed; but the same chancellor in a 
 later case unhesitatingly granted an injunction against one who had 
 obtained a knowledge of such a secret by a breach of trust: Yovatt 
 V. Winyard, 1 Jacob & W. 394; and see Williams v. Williams, 3 
 Mer. 157; and the jurisdiction has since been undoubted in England, 
 and in the United States, save for the case of Denning v. Chapman, 
 11 How. Pr. (N. Y.) 383. 
 
 27 Morrison v. Moet, 9 Hare, 241.
 
 § 268 EQUITABLE REMEDIES. 49a 
 
 right of property in the secret unpatented process — 
 not an exclusive right to it as against the public, or 
 against those who in good faith acquire knowledge of it, 
 but a property "which a court of chancery will protect 
 against one who in violation of contract and breach of 
 confidence undertakes to apply it to his own use, or to 
 disclose it to third parties-''^^ In other cases the juris- 
 diction has been referred to breach of an implied con- 
 tract inferred from the nature of the employment ;2«^ 
 in others it has been treated as founded upon trust or 
 confidence ;3<^ more often it is spoken of as resting on 
 both of the last two grounds combined.^^ Not only the 
 
 28 Peabody v. Norfolk, 98 Mass. 452, 96 Am. Dec. 664. See, also. 
 Tabor v. Hoffman, 118 N. Y. 30, 16 Am. St. Eep. 740, 23 N. E. 12. 
 
 29 The following dictum of Wigram, V. C, in Tipping v. Clarke, 
 2 Hare, 393, has often been referred to with approval: "It is clear,thal 
 every clerk employed in a merchant's counting house ia under an 
 implied contract that he will not make public that which he learns 
 in the execution of his duty as clerk." The secret may, of course, 
 be protected by express agreement; such an agreement is not in gen- 
 eral restraint of trade: See post, § 297. 
 
 30 Yovatt V. Wingard, 1 Jacob & W. 394. See a clever argument 
 in favor of this theory in 11 Harvard Law Review, 262. 
 
 31 "Perhaps the real solution is that the confidence postulates an 
 implied contract; that, when the court is satisfied of the existence 
 of the confidential relation, then it at once infers or implies the 
 contract arising from that confidential relation": Merryweather v. 
 Moore, [1892] 2 Ch. 518, 522, per Kekewich, J, In addition to tha 
 eases already cited, see the following recent cases, all concerning 
 the disclosure or unfair use of secret processes: C. F. Simmons Medi- 
 eine Co. v. Simmons, 81 Fed. 163; Stewart v. Hook, 118 Ga. 445, 45 
 S. E. 369; Westervelt v. National Paper etc. Co., 154 Ind. 673, 57 
 N. E. 552 (reviewing many cases); O. & W. Thum Co. v. Tloczynski^ 
 114 Mich. 149, 68 Am. St. Rep. 469, 72 N. W. 140, 38 L. R. A. 200, 
 45 Cent. L. J. 348 (reviewing many cases); Salomon v. Hertz, 
 40 N. J. Eq. 400, 2 Atl. 379; Stone v. Goss, 65 N. J. Eq. 756, 55 
 Atl. 736; Chaplin v. Stoddart, 30 Hun, 300; Eastman Co. v. Reich 
 enbach, 20 N. Y. Supp. 110, 36 Cent. L. J. 433, 47 N. Y. St. 
 Rep. 435; Little v. Gallus, 38 N. Y. Supp. 487, dissenting opinion. 
 Id. 1014 4 App. Div. 569. See, also, Simmons Hardware Co. T. 
 Waibel, 1 S. D. 488, 36 Am. St. Rep. 755, 47 N. W. 814, 11
 
 491 INJUNCTIONS-EQUITABLE INTERESTS. i 269 
 
 person acquiring the knowledge by breach of contract 
 or of confidence will be enjoined, but also all persons 
 to whom he has disclosed the secret.^* The protection 
 of an injunction is, of course, extended only to that 
 which is really the plaintiff's secret, and not to knowl- 
 edge or information which is accessible to all the 
 world.'" 
 
 § 269. Other Instances. — Among other instances in 
 \\ hich equity will grant an injunction, preliminary or 
 final, to protect purely equitable estates or interests, 
 or in aid of purely equitable remedies, the following 
 
 L. R. A. 267 (receiver appointed of a secret code). The jurisdic- 
 tion is thus described in Westervelt v. National Paper etc. Co., 
 tupra: "It is evident from the authorities cited that if a per- 
 son employs another to work for him in a business in which he 
 makes use of a secret process or of machinery invented by himself, 
 or by others for him, but the nature and particulars of which he 
 desires to keep a secret, and of which desire on the part of the 
 eir.ployer the employee has notice at the time of his employment, 
 even if there is no express contract on the part of the employee 
 not to divulge said secret process or machinery, the law will im- 
 ply a promise to keep the employer's secret thus intrusted to him; 
 and any attempt on his part to use the secret process or machinery, 
 or to construct the machinery for his own use, as against the master, 
 or to communicate said secret to others, or in any manner to aid 
 others in using the same or in constructing the machinery, will not 
 tnly be a breach of his contract with his employer, but a breach of 
 confidence and violation of duty which will be enjoined by a court 
 of equity." 
 
 To the effect that an assignee of the secret may enjoin former em- 
 ployees of the assignor, see Vulcan Detinning Co. v. American Can 
 Co. (N. J. Eq.), 58 Atl. 290. In Pressed Steel Car Co. v. Standard 
 Steel Car Co. (Pa.), 60 Atl. 4, blue-prints were delivered by the com- 
 plainant to certain railroad companies, to be used in ordering parts 
 of cars, etc., from complainant. One company delivered the prints 
 to a rival. It was held that this was a breach of confidence, and 
 that an injunction should issue. 
 
 32 See nearly all the cases cited in the preceding notes. 
 
 33 See Reuter's Telegram Co. v. Byron, 43 L. J. (Ch.) 661, opinion 
 c.f Jessel, M. R.; Williams v. Williams, 3 Mer. 15-
 
 I L'Og EQUITABLE REMEDIES. 492 
 
 may be enumerated : In aid or in place of cancellation, 
 to prevent the transfer of negotiable instruments, at the 
 suit of the defrauded maker or acceptor, or of the party- 
 claiming to be the true owner, or to have an interest in 
 them;^^ or the transfer, under like circumstances, of 
 stocks or other securities not strictly negotiable ;^^ to 
 prevent the transfer or injury of chattels of a special 
 nature and value,^^ or of other chattels wrongfully de- 
 tained by an agent in violation of his trust,^'^ in con- 
 nection with a suit for their delivery up; in aid of the 
 rights of an equitable assignee against interference by 
 his assignor ;^^ to protect the estate of a supposed in- 
 sane person during the pendency of lunacy proceed- 
 ings;^^ in connection with creditors' bills ;^<' to prevent 
 a defendant from affecting or encumbering the prop- 
 erty in litigation by contract, conveyance, mortgage, or 
 any other act;"*^ and, in general, in all suits to enforce 
 an equitable right against specific property, — as to en- 
 force an equitable estate and compel the conveyance of 
 
 34 Pom. Eq. Jur., § 1340. See post, chapter on Cancellation. 
 
 35 Pom. Eq. Jur., § 1340. See post, chapter on Cancellation. 
 
 36 Lloyd V. Loaring, 6 Ves. 773 (Masonic regalia) ; Church v. Hae- 
 ger (Com. PI. S. T.), 33 N. Y. Supp. 47 (wedding presents). See 
 post, chapter on Specific Performance. 
 
 37 Wood V. Eowcliffe, 3 Hare, 304, 308. See post, chapter on Spe- 
 cific Performance. 
 
 38 Dulaney v. Scudder, 94 Fed. 6, 36 C. C. A. 52 (and the court 
 may retain jurisdiction for the purpose of assessing damages, but 
 not in aid of a legal assignee, whose right has been acknowledged 
 by the debtor, to prevent execution on a judgment recovered by the 
 assignor against the debtor, since the assignee's right is not preju- 
 diced thereby, and his remedy at law against the debtor is complete) ; 
 Perry v. Thompson, 108 Ala. 586, 18 South. 524. 
 
 39 In re Harris, 7 Del. Ch. 42, 28 Atl. 329. 
 
 40 See post, chapter on Creditors' Suits. For instance of injunction 
 to preserve the fund belonging to the debtor until judgment at law 
 is obtained, see Hawks v. Hawks (Vt.), 54 Atl. 959. 
 
 41 Pom. Eq. Jur., § 1340; Daly v. Kelly, 4 Dow, 417, 440. See ante, 
 § 262, note 2, § 264, as to preliminary or interlocutory injunction.
 
 493 INJUNCTIONS- EQUITABLE INTERESTS. S 2G9 
 
 the legal title, to enforce a trust, or an equitable lien,*^ 
 to compel the specific performance of a contract ;'*'' 
 and the like, — the court will grant an injunction to re- 
 strain a threatened transfer of the property, whether 
 land, chattels, or securities, during the pendency of the 
 action.''^ 
 
 42 See Williams v. Harlan, 88 Md. 1, 71 Am, St. Rep. 394, 41 Atl. 
 61 (lien of tenant in common for improvements benefiting the es- 
 tate, or of one subrogated to his rights, protected from an unfair 
 partition); Pensacola & G. R. Co. v. Spratt, 12 Fla. 26, 91 Am. Dec. 
 747 (holder of equitable lien may have relief on ground of waste 
 only when defendant's use of the property impairs the security); 
 Robinson v. Pickering, L. R. 16 Ch. D. 371, 660 (in suit to enforce 
 married woman 's contract against her separate estate, an injunction 
 restraining her from alienating her property will not be granted be- 
 fore the plaintiflf establishes his right by obtaining a judgment, be- 
 cause her contract, by the English doctrine, creates no lien or charge 
 on her estate). 
 
 43 See post, chapters on Injunction to Prevent Breach of Contract, 
 and on Specific Performance. 
 
 44 Pom. Eq. Jur., § 1340. 
 
 * ' To prevent a c/owd upon title. The use of the injunction to pre- 
 vent acts which would create a cloud upon title is governed by the 
 same rules which control the remedy of removing a cloud frQm title": 
 4 Pom. Eq. Jur,, §: 1345; cited, McConnaughy v. Pennoyer, 43 Fed. 
 342. See post, chapters on Injunction Against Taxation, passim, and 
 (in Vol. II) on Cloud on Title. 
 
 "To protect married vx)inen's property. An injunction may be 
 needed for this purpose; as, for example, to restrain the sale of her 
 property for her husband's debts when her title is clear, but not un- 
 less it i« clear: Allen v. Benners, 10 Phila, 10; Simson v. Bates, 10 
 Phila, 66; to prevent the collection of a mortgage assigned by a wife, 
 when the assignment was void: French v, Snell, 29 N, J, Eq. 95"; 
 4 Pom, Eq. Jur., § 1345, and note 6; cited. Filler v. Tyler, 91 Va. 458, 
 22 S. E. 233. See, also, Kirkpatrick v. Buford, 21 Ark. 268, 76 Am. 
 Dec. 363 (to protect separate property from husband's creditors); 
 Pritchett v. Davis, 101 Ga. 236, 65 Am. St. Rep. 298, 28 S. E. 666 
 (to protect homestead); Hulett v. Inlow, 57 Ind. 412, 26 Am. Rep. 
 64; Wagoner v. Wagoner, 77 Md. 189, 26 Atl. 284 (to protect legal 
 separate estate; case of probable irreparable injury must be shown); 
 Dority v. Dority (Tex.), 71 S. W. 950 (husband's interference with 
 statutory separate estate enjoined). Injunction is often authorized 
 by statute as an incident to a suit for divorce, to prevent alienation
 
 § 2G9 EQUITABLE KEMEDIES. 494 
 
 of the husband's proiDerty to defeat the right to alimony: See In re 
 White, 113 Cal. 282, 45 Pae. 323; Uhl v. Tnvin, 3 Okla. 388, 41 Pac. 
 376; cf. Smith v. Smith (S. C), 29 S. E. 227; or to prevent his inter- 
 ference with the wife's property: See Eobinson v. Robinson, 123 
 N. C. 136, 31 S. E. 371; Lyon v. Lyon, 102 Ga. 453, 66 Am. St. Rep. 
 189, 31 S. E. 34, 42 L, B. A. 194; Symonds v. Hallett, L. R. 24 Ch. 
 D. 346.
 
 495 INJUNCTlONi BKEACH OF (JONTKACTS. 
 
 CHAPTER XIII. 
 
 INJUNCTIONS TO PREVENT THE VIOLATION OP 
 
 CONTRACTS. 
 
 ANAIASIB. 
 
 § 270. Injunctions to prevent violation of contracts — -In general. 
 
 § 271. Principles regulating specific performance apply. 
 §§ 272-284. Kestrictive covenants — Equitable easements. 
 
 § 273. Questions stated. 
 
 § 274. Action by grantor. 
 
 § 275. Action by purchaser of other land. 
 
 § 276. Eestrietions as to use of property. 
 
 § 277. Restrictions which are enforceable. 
 
 § 278. Liability of grantor. 
 
 5 279. Effect of change of character of neighborhood. 
 
 § 280. Complainant must come into court with clean hands- 
 Acquiescence. 
 
 § 281. Eemedy independent of amount of injury. 
 
 § 282. Actual notice not necessary. 
 
 § 283. Mandatory injunctions. 
 
 § 284. Extension of the doctrine — Application to personal prop- 
 erty. 
 §§ 285-287. Injunctions against breaches of covenant between land- 
 lord and tenant. 
 
 § 286. Same — Eights of lessee. 
 
 § 287. Same — Eights of sub-tenant. 
 §§ 288-291. Contracts for personal service of a special character. 
 
 § 289. Same: Lurnley v. Wagner — Whether stipulation must be 
 expressly negative in form. 
 
 § 200. Same— No relief upon contracts for ordinary services. 
 
 § 291. Limitations. 
 §§ 292-299. Other agreements, generally negative in their nature. 
 
 § 293. Agreements not to carry on a trade^ express or implied — 
 Sale of good-will. 
 
 § 294. Same — Injunctions against employees. 
 
 § 295. Agreements not to compete. 
 
 § 296. Contracts conferring an exclusive right. 
 
 § 297. Miscellaneous agreements, expressly negative. 
 
 § 298. Miscellaneous agreements, not expressly negative. 
 
 § 299. Adequate remedy at law. 
 
 § 300. Effect of provisions for penalties and liquidated dam- 
 ages.
 
 i! 270, 271 EQUITABLE REMEDIES. 496 
 
 § 270. Injunctions to Prevent the Violation of Contracts — 
 In General — ''An injunction restraining the breach of a 
 contract is a negative specific enforcement of that con- 
 tract. The jurisdiction of equity to grant such injunc- 
 tion is substantially coincident with its jurisdiction to 
 compel a specific performance. Both are governed by 
 the same doctrines and rules; and it may be stated as 
 a general proposition that wherever the contract is one 
 of a class which will be affirmatively specifically en- 
 forced, a court of equity will restrain its breach by in- 
 junction, if this is the only practical mode of enforce- 
 ment which its terms permit.^ Where the agreement 
 stipulates that certain acts shall not be done, an in- 
 junction preventing the commission of those acts is 
 evidently the only mode of enforcement ; but the remedy 
 of injunction is not confined to contracts whose stip- 
 ulations are negative; it often extends to those which 
 are affirmative in their provisions, where the affirmative 
 stipulation implies or includes a negative. The univer- 
 sal test of the jurisdiction, admitted alike by the courts 
 of England and of the United States, is the inadequacy 
 of the legal remedy of damages in the class of contracts 
 to which the particular instance belongs."^ 
 
 § 271. Principles Regulating Specific Performance Apply. 
 Since restraining the breach of a contract by injunction 
 
 1 Quoted in Chicago Municipal G. L. & C. Co. v. Town of Lake, 
 130 111. 42, 22 N. E. 616; South Chicago City K. Co. v. Calumet E) 
 St. E. Co., 171 111. 391, 49 N. E. 576; Welty v. Jacobs, 171 111. 624, 
 49 N. E. 723, 40 L. E. A, 98. 
 
 2 4 Pom. Eq. Jur., § 1341. The author adds in the note: "The mod- 
 ern English decisions have been much more liberal than the Amer- 
 ican cases in applying this test, and the English courts have more 
 freely used the injunction to prevent the violation of contracts than 
 the majority of the American judges have been willing to go. The 
 tendency of the American courts has been to limit, rather than to 
 enlar"-e, the jurisdiction in cases of contracts. English courts will
 
 497 INJUNCTION; BEEACH OF CONTRACTS. S 271 
 
 is merely a mode of specifically enforcing the contract, 
 it follows that the discretion of the court in awarding 
 the injunction is guided by the same equitable prin- 
 ciples and doctrines as those which regulate the remedy 
 
 enjoin the violation of some contracts, even though they cannot be 
 specifically enforced. The American decisions, -with few exceptions, 
 refuse to adopt this doctrine." These remarks have hardly the force, 
 at the present day, that they possessed at the time when they 
 were written (1883). Indeed, the English and American courts ap- 
 pear to have changed places in respect to their attitude towards one 
 important class of contracts — those for personal services: See post, 
 §§ 288, 289. 
 
 Injunction refused because contract one of a class which, because 
 of the adequacy of the legal remedy, will not be aflSrmatively spe- 
 cifically enforced: Fothergill v. Eowland, L. K, 17 Eq. 132, a con- 
 tract for the sale of chattels, viz., of all the coal which defendants 
 should get from a certain mine; Harlow v. Oregonian Pub. Co. (Or.), 
 78 Pac. 737, See, also, infra, § 271, and post, Vol. II., chapters on 
 Specific Performance, 
 
 For instances of injunction granted, although there was no express 
 negative stipulation, if such negative can reasonably be implied: 
 Montague v. Flockton, L. E. 16 Eq. 189; Manchester Canal Co. v. 
 Manchester Eacecourse Co., [1901] 2 Ch. 37; Singer Sewing Ma- 
 chine Co. V. Union B & E. Co., 1 Holmes, 253, Fed. Cas. No. 12,904; 
 Chicago & A. R. Co. v. New York, L. E. & W. R. Co., 24 Fed. 516; 
 Beatty v. Coble, 142 Ind. 329, 41 N. E. 590; Dwight v. Hamilton, 
 113 Mass. 175; Duff v. Russell, 60 N. Y. Super. Ct. (28 Jones & S.)" 
 80, 39 N. Y. St. Rep. 266, 14 N. Y. Supp. 134, affirmed without opin- 
 ion, 133 N. Y. 678, 31 N. E. 622 (contract for personal services); 
 Hoyt V. Fuller, 19 N. Y. Supp. 962 (same); Cort v. Lassard, 18 Or. 
 221, 17 Am. St. Eep. 726, 22 Pac. 1054, 6 L. E. A. 653, So far as 
 contracts for personal services are concerned, it is now generally 
 taken to be settled in England that an express negative clause in 
 the contract is necessary to warrant an injunction: Whitwood Chem- 
 ical Co. V. Hardman, [1891] 2 Ch. 416; and the stipulation must 
 be negative in substance as well as in form: Davis v. Foreman, [1894] 
 3 Ch. 654. See, also, Burton v. Marshall, 4 Gill (Md.), 487, 45 Am. 
 Dec. 171. 
 
 For instances of injunction granted, notwithstanding that some 
 
 parts of the contract were incapable of specific enforcement, see 
 
 Whittaker v. Howe, 3 Beav. 383; Rolfe v. Rolfe, 15 Sim. 88; Die- 
 
 trichsen v. Cabburn, 2 Phill. Ch. 52, per Lord Cottenham, C. ("the 
 
 Equitable Remedies, Vol. I — 32
 
 § 271 EQUITABLE REMEDIES. 408 
 
 of specific performance. Thus, the breach of a contract 
 will not be enjoined unless the terms of the contract are 
 certain and definite;^ if the injunction will work a 
 "hardship" to the defendant or innocent third parties, 
 within the meaning of that term in equity;'* if the con- 
 equitable jurisdiction to restrain by injunction an act which the 
 defendant by contract or duty was bound to abstain from, cannst 
 be confined to cases in which the court haa jurisdiction over the act« 
 of llie plaiutift'"); Lumley v. Wagner, 1 De Gex, M. & G, 604 (the 
 Jcailing case, decided in 1852, reviewing all prior authorities); Donnell 
 V. Beunett, L. K. 22 Ch. D. 835 (immaterial whether the negatiTe 
 clause is a separable part of the whole contract) ; Singer Sewing 
 Machine Co. v. Union Button-Hole etc. Co., 1 Holmes, 253, Fed. Cas. 
 Xo. 12,904, per Lowell, J., reviewing many English cases ("I think 
 the fair result of the later cases may be thus expressed: If the case 
 is one in which the negative remedy of injunction will do substan- 
 tial justice between the parties, by obliging the defendant either 
 to carry out his contract or lose all benefit of the breach, and the 
 remedy at law is inadequate, and there is no reason of policy against 
 it, the court will interfere to restrain conduct which is contrary to 
 the contract, although it may be unable to enforce a specific per- 
 formance of it"); Western Union Tel. Co. v. Union Pac. E. Co., 
 1 McCrary, 558, 3 Fed. 423; Western Union Tel. Co. v. St. Josepti 
 & W. E. Co., 1 McCrary, 565, 3 Fed. 430; Chicago & A. E. Co. v. 
 New York, L. E. & W. E. Co., 24 Fed. 'olG (enjoining diversion of 
 traffic from a railroad); Xenia Eeal Estate Co. v. Macy, 147 Ind. 
 568, 47 N, E. 147 (contract to supply natural gas) ; Standard Fashion 
 Co. v. Siegel-Cooper Co., 157 N. Y. 60, 68 Am. St. Rep. 749, 51 N. 
 E. 408, 43 L. E. A. 854, affirming 30 App. Div. 564, 52 N. Y, Supp. 
 433, and reversing 22 Misc. Eep, 624, 50 N. Y. Supp. 1056 (see pofif, 
 § 2J:5); Peabody v. Norfolk, 98 Mass. 452, 96 Am. Dec. 664; House 
 V. Clemens, 24 Abb. N. C. 381, 9 N. Y. Supp. 484 (agreement by 
 defendant, an author, to permit plaintiff to dramatize a novel written 
 1 y the foruier). But see Welty v. Jacobs, 171 111. 624, 49 N. E. 723, 
 40 L. E. A. 98; Iron Age Publishing Co. v. Western Union Tel. Co., 
 83 Ala. 498, 3 Am. St. Rep. 758, 3 South. 449; Strang v. Richmond, 
 P. & C. R. Co., 93 Fed. 71; Hills v. Croll, 2 Phill. Ch. 60. 
 
 3 See Gaslight & E. Co. of New Albany v. City of New Albany, 
 139 Ind. 660, 39 N. E. 462; Xenia Real Estate Co. v. Macy, 147 Ind. 
 5G8, 47 N. E. 147; Giles v. Dunbar, 181 Mass. 22, 62 N. E. 985; Strang 
 V. Richmond, T. & C. E. Co., 93 Fed. 71. 
 
 4 Goddard v. American Queen, 27 Misc. Rep. 482, 59 N. Y. Supp.
 
 499 INJUNCTION; BEEACH OF CONTEACTS. i 273 
 
 tract is tainted with illegality;'' if there has been n^ 
 performance by the plaintiff of that which, under the 
 terms of the contract, he was obliged first to perform ;• 
 or when the decree of injunction would be nugatory,^ 
 etc. 
 
 § 272. Restrictive Covenants — Equitable Easements. — In- 
 junctions are frequently allowed to restrain the viola- 
 tion of covenants restricting the use of the land. "WhcB 
 the owner of land enters into a covenant concerning ife, 
 when in a deed the grantor or the grantee covenants, or 
 in a lease the lessor or the lessee covenants, concerning 
 the land, concerning its use, restricting certain speci- 
 fied uses, stipulating for certain specified uses, sub- 
 jecting it to easements or servitudes, and the like, and 
 the land is afterwards conveyed, or sold, or passes to 
 one who has actual or constructive notice of the cove- 
 nant, the grantee or purchaser will take the premise* 
 bound by the covenant, and will be compelled in equity 
 either to specifically execute it, or will be restrained 
 from violating it, at the suit of the original covenantee 
 or of any other person who has a suflicient equitable 
 interest, although perhaps without any legal interest, 
 
 46. Nor will a contract inequitable and unconscionable, which de- 
 fendant probably did not understand, be enforced by injunction: Pop* 
 Mfg. Co. V. Gormully, 144 U. S. 224, 12 Sup. Ct. 632, 36 L. ed. 414. 
 
 5 See Pacific Postal Tel. Co. v. Western Union Tel. Co., 50 Fed. 493; 
 South Chicago City E. Co. v. Calumet E. St. E. Co., 171 111. 391, 4» 
 N. E. 576; Olin v. Bale, 98 111. 53, 38 Am. Eep. 78 (contract of doubt- 
 ful propriety); Fullington v. Kyle Lumber Co., 139 Ala. 242, 35 South. 
 852. 
 
 6 See Chicago M. G. L. & F. Co. v. Town of Lake, 130 111. 42, 22 N. 
 E. 616; New York Chemical Co. v. Halleck (Com. P. S. T.), 15 N. T. 
 Supp. 517. As to mutualUy, see supra^ § 271, last paragraph of nota 
 2. 
 
 7 See Brett v. East India & L. S. Co., 2 Hem. & M. 404. See, gen- 
 erally, on all these subjects, post, Vol. II, chapters on Specific Pef- 
 formance.
 
 i 272 EQUITABLE EEMEDIE3. 600 
 
 in such performance."® The application of this doc- 
 trine is wholly independent of the question whether the 
 covenant is of such a character as to run with the land.* 
 It is a creation of equity and can be enforced by an 
 equitable remedy.^** 
 
 • Pom. Eq. Jur., § 1295. 
 
 • Tulk V. Moxhay, 2 Phill. 774. "The question is not whether 
 the covenant runs with the land, but whether a party shall be per- 
 mitted to use the land in a manner inconsistent with the contract 
 entered into by his vendor, and with notice of which he pur- 
 chased." See, also, Morris v. Tuskaloosa Mfg. Co., 83 Ala. 565, 
 a South. 690; Willoughby v. Lawrence, 116 lU. 11, 4 N. E. 356, 56 
 Am, Eep. 758, citing Pom. Eq. Jur., §§ 1295, 1342. 
 
 It is questionable whether affirmative covenants of similar na- 
 ture will be enforced in equity. Professor Pomeroy in Pom. Eq. 
 Jur., § 1295, says: "I. have, as it will be seen, continued to state 
 ihe doctrine in its most general form as applying to affirmative as 
 well as to restrictive covenants, and as rendering the owner liable 
 to the affirmative duty of specifically performing the covenant, as 
 well as to the negative remedy of restraint from violating it, not- 
 withstanding the very recent decisions by the English court of ap- 
 peal holding that the doctrine applies only to restrictive covenants, 
 and does not extend to those which stipulate for affirmative acts." 
 See London etc. Ey. v. Gomm, L. E. 8 Q. B. D. 562; Haywood v. 
 Brunswick Bldg. See, L. E. 8 Q. B. D. 403. In Morland v. Cook 
 L. E. 6 Eq. 2'52, an affirmative covenant was enforced. In Stevens 
 V. Annex Eealty Co., 173 Mo. 511, 73 S. W. 505, an affirmative cove- 
 nant to pay assessments for improvements was enforced. 
 
 10 "The most frequent condition of facts to which the doctrine 
 has been applied in the United States is the following: A, the owner 
 of a block of land, divides it into lots for sale, and sells all these 
 lots to different grantees. In the deed of lot No. 1 are covenants of 
 the grantee not to build nearer the street than a certain line, or 
 not to build certain kinds of buildings, or not to use the lots for 
 certain purposes, or not to build so as to cut off a certain prospect, 
 or other negative or affirmative covenants. The deeds of all the other 
 lots contain similar covenants. Finally, the whole land is sold, so 
 that A retains no interest whatever. The lots are afterwards con- 
 veyed to subsequent grantees. Each subsequent grantee would be 
 charged with constructive notice of the covenants in the original deed 
 under which he claimed title. If the subsequent grantee of any lot — 
 say No. 1 — should violate the covenants in the deed of his lot, then 
 plainly there would be no right of action at law against him in favor
 
 601 INJUNCTION; BREACH OF CONTRACTS. { 273 
 
 § 273. Questions Stated — "Every owner of real prop- 
 erty has the right so to deal with it as to restrain its 
 uses by his grantees within such limits as to prevent its 
 appropriation to purposes which will impair the value 
 or diminish the pleasure of the enjoyment of the land 
 which he retains. The only restriction on this right is, 
 that it shall be exercised reasonably, with due regard 
 to public policy, and without creating any unlawful re- 
 straint of trade."" When a restriction has once been 
 
 of the owner of any other lot; for there would be no legal privity 
 whatsoever between them." "The following cases al3o illustrate the 
 doctrine: In Clark v. Martin, 49 Pa. St. 2S9, each grantee of adjoin- 
 ing lots covenanted not to build on the rear portion of his premises 
 above a certain height, and this was enforced; Schwoerer v. Boylston 
 Market Assn., 99 Mass. 285 (a covenant that a strip of land should 
 not be subject to fences, and should be used as a way, was enforced 
 by the subsequent grantee of other land benefited thereby); Peck 
 V. Conway, 119 Mass. 546 (a covenant not to erect a building on 
 the land conveyed was enforced against a subsequent grantee of the 
 covenantor by a subsequent grantee of the original covenantee; the 
 defendant had constructive notice from his title deeds); Whitney v. 
 Union etc, Ry. Co., 11 Gray, 359, 71 Am. Dec. 715 (a covenant not to 
 use the land in a certain manner enforced against a subsequent 
 grantee charged with notice); Parker v. Nightingale, 6 Allen, 341, 83 
 Am. Dec. 632 (in conveyances of adjoining lots by same grantor, each 
 grantee covenanted that the lot should only be used for dwelling- 
 houses; held binding on all subsequent grantees, and enforceable by 
 any subsequent grantee against another"): Pom. Eq. Jur., § 1295, note. 
 
 This doctrine is known by various names in the different jurisdic- 
 tions. Most of the cases have arisen in England, New York, Massa- 
 chusetts, New Jersey, or Pennsylvania. In some jurisdictions such 
 covenants are called covenants -running with the land. Else- 
 where they are said to be in the nature of easements. And in still 
 other jurisdictions they are simply called restrictive covenants. 
 Under whatever name, the principles applied are practically the 
 same, so that for the purpose of this treatment we may disregard 
 the diversity. Even where they are called covenants running with 
 the land it is held that they are covenants enforceable only in equity. 
 It would soem that the most accurate designation is "equitable 
 easements," for these terms describe the particular covenants, to the 
 exclusion of all others, 
 
 11 Whitney v. Union Ry. Co., 11 Gray, 359, 71 Am. Dec. 715.
 
 § 274 EQUITABLE EEMEDIES. 502 
 
 placed upon the use of land, questions arise as to who 
 is bound and who may enforce. 
 
 § 274. Action by Grantor. — When the action is brought 
 by tlie grantor, the case is simple. If, in such a case, 
 the defendant is the original grantee, an action can be 
 maintained at law, and in a proper case an injunction 
 will be awarded. If he is a grantee of a grantee, an 
 injunction will be allow^ed upon the principle that a 
 party shall not be permitted to use land in a manner 
 inconsistent with the contract entered into by his ven- 
 dor, with notice of which he purchased.^ ^ This is sub- 
 ject to the limitation in some jurisdictions that the re- 
 striction must "touch or concern," or "extend to the 
 support" of the land.^^ 
 
 12 Tulk V. Moxhay, 2 Phill. Ch. 774; Wilson v. Hart, 2 Hem. & M. 
 551, 11 Jur., N. S., 735, L. E. 1 Ch. 463; Fielden v. Slater, L. E. 7 
 Eq. 523; Sullivan v. Kohlenberg, 31 Ind. App. 215, 67 N. E. 541 
 (recorded contract not to sell liqnor enforced against purchaser) ; 
 Hayes v. Waverly & P. E. Co., 51 N. J. Eq. 348, 27 Atl. 649; Cornish 
 V. Wiessman, 56 N. J. Eq. 610, 35 Atl. 408; Walker v. McNulty, 19 
 Misc. Eep. 701, 45 N. Y. Supp. 42. In Jenks v. Pawlowski, 98 Mich. 
 110, 39 Am. St. Eep. 522, 56 N. W. 1105, 22 L. E. A. 863, it was held 
 that if the grantor sells his remaining land without inserting re- 
 strictions, he waives them as to his prior grantee. In Los Angeles 
 University v. Swarth, 107 Fed. 798, 46 C. C. A. 647, 54 L. E. A. 262, 
 it was held that a grantor who has disposed of all his land in the 
 vicinity cannot obtain an injunction. The argument is that he suf- 
 fers no injury by the breach. That, where the grantor sells the whole 
 of his land, to one purchaser, with a restrictive covenant by the 
 ▼endee, such covenant is personal, and the vendor's executor cannot 
 enjoin an assign of the purchaser in respect of a breach committo'l 
 after the vendor's death, see Formby v. Barker, [1903] 2 Ch. 539, 
 reviewing many cases. It has been held that where several grantors 
 unite in a deed to a city and covenant therein that no buildings shall 
 be built on a certain strip, one grantor may enjoiu another from 
 violating the covenant: Evans v. New Auditorium Pier Co. (N. J. 
 Eq.), 58 Atl. 19L 
 
 la Korcross v. James, 140 Mass. 188, 2 N, E. 946. See, also, Loa 
 Angeles Terminal Land Co. v. Muir, 136 Cal. 36, 68 Pac. 308.
 
 503 INJUNCTION; BREACH OF CONTRACTS. S ^75 
 
 § 275. Action by Purchaser of Other Land. — When it 
 clearly appears that such restrictions are intended to 
 inure to the benefit of other land, at the time of con- 
 veyance or formerly belonging to the grantor, a subse- 
 quent grantee of such other parcel may enforce the re- 
 striction by injunction. The principal question to be 
 determined in such cases is whether the intent is suf- 
 ficiently clear to warrant the court in giving relief. It 
 is a matter for construction of the words of the cove- 
 nant, in connection with the surrounding circumstances. 
 If the language is explicit in stating the intent, the gran- 
 tee's right is admitted.^* The difficulty arises when 
 the covenant merely restrains the use without indicat- 
 ing the beneficiary. 
 
 Where an owner of a tract of land lays it out in 
 building lots, makes a plan showing a general building 
 scheme, and sells in accordance therewith to various 
 purchasers, inserting restrictions in all the deeds, the in- 
 tent will be inferred. The purpose of the restrictions 
 is clearly to benefit all the land in the tract and to make 
 an inducement for purchase. Accordingly, one grantee 
 may enjoin a breach by another, or by one who takes 
 with notice.^ ^ Some courts have intimated that either 
 
 14 Lattimer v. Livermore, 72 N. Y. 174; Scbwoerer v. Boylstoa 
 Market Assn., 99 Mass. 285; Ragen v. Hasegood, [1900] 2 Ch. 388. 
 
 15 In the following cases there was a general scheme of improve- 
 ment which was held sufficient to show an intent to give a grantee 
 a right to enforce: Collins v. Castle, L. R. 36 Ch. D. 243; Child 
 T. Douglas, Kay, 560; Spicer v. Martin, L. R. 14 App. Cas. 12; 
 Parker v. Nightingale, 88 Mass. (6 Allen) 341, 83 Am. Dec. 632; 
 Hamlen v. Werner, 144 Mass. 397, 11 N. E. 684; Hano v. Bigelow, 
 155 Mass. 341, 29 N. E. 628; Winfield v. Henning, 21 N. J. Eq. 183; 
 Tallmadge v. East River Bank, 26 N". Y. 105; Bimson v. Bultman, 3 
 App. Div. 198, 38 N. Y. Supp. 209; Barrow v. Richard, 8 Paige, 351, 
 35 Am. Dec. 713; Summers v. Beeler, 90 Md. 474, 78 Am. St. Rep. 
 446, 45 Atl. 19, 48 L. R. A. 54; Whatman v. Gibson, 9 Sim. 196; 
 Schreiber v. Creed, 10 Sim. 196; Pollard v. Gore, [1901] 1 Ch. 831;. 
 Fisk V. Ley, 76 Conn. 295, 56 Atl. 559. For a collection of authoii- 
 ties see note, 21 Am. St. Rep. 489.
 
 5 275 EQUITABLE REMEDIES. 504 
 
 a general building scheme or an express declaration in. 
 the covenant is essential; but the better view seems to 
 be that the intent may be otherwise determined.^' 
 
 l« The rules are summed up in De Gray v. Monmouth Beach Club- 
 house Co., 50 N. J. Eq. 329, 24 Atl. 388, as follows: "The action is 
 held not to be maintainable between purchasers not parties to the 
 original covenant, in cases in which — (1) It does not appear that the 
 covenant was entered into to carry out some general scheme or plan 
 for the improvement or development of the property which the act 
 of defendant disregards in some particular. (2) It does not appear 
 that the covenant was entered into for the benefit of the land of which 
 complainant has become the owner, (3) It appears that the cove- 
 nant was not entered into for the benefit of subsequent purchasers, 
 but only for the benefit of the original covenantee and his next 
 of kin. (4) It appears that the covenant has not entered into the 
 consideration of the complainant's purchase. (5) It appears that the 
 original plan has been abandoned without dissent, or the character 
 of the neighborhood has so changed as to defeat the purpose of the 
 covenant, and to thus render its enforcement unreasonable." All of 
 the statements seem fully supported by authority, with the excep- 
 tion of the first. In probably the majority of the cases where 
 injunctions have been granted there has been a general building 
 scheme. But it will be seen that such relief has been granted where 
 there has been no such scheme. 
 
 In Beals v. Case, 138 Mass. 138, the rule was laid down as follows: 
 "But it is always a question of intention of the parties; and, in order 
 to make this rule applicable, it must appear from the terms of the 
 grant, or from the situation and surrounding circumstances, that it 
 was the intention of the grantor in inserting the restriction to create 
 a servitude or right which should inure to the benefit of the plain- 
 tiff's land, and should be annexed to it as an appurtenance." 
 
 In the following cases the court found sufficient evidence of the 
 intention: Tobey v. Moore, 130 Mass. 448; Peck v. Conway, 119 Mass. 
 546; Bauer v. Gribbel, 2 App. Div. 80, 37 N. Y. Supp. 609; Electric 
 City Land & Imp. Co. v. West Eidge Coal Co., 187 Pa. St. 500, 41 Atl. 
 458; Muzzarelli v. Hulshizer, 163 Pa. St. 643, 30 Atl. 291; St. An- 
 drew's Church's Appeal, 67 Pa. St. (17 P. F. Smith), 512; Clark v. 
 Martin, 49 Pa. St. 289; Duncan v. Central Passenger Ry. Co., 85 Ky. 
 425, 4 S. W. 228; Morris v. Tuskaloosa Mfg. Co., 83 Ala. 565, 3 South. 
 689; Greene v. Creighton, 7 R. I. 1; Phoenix Ins. Co. v. Continental 
 Ins. Co., 14 Abb. Pr., N, S., 2G6; Hills v. Metzenroth, 173 Mass. 423, 
 53 N. E. 890; Linzee v. Mixer, 101 Mass. 512; Coughlin v. Barker, 46 
 Mo. App. 54; Moxhay v. Inderwick, 1 De Gex & S. 708 (not an iu- 
 iunction case); In re Birmingham & D. L. Co., [1893] 1 Ch. 343;
 
 fi05 INJUNCTION; BEEACH OF CONTRACTS. i 27« 
 
 § 276. Restrictions as to "Use of Property — These rulea 
 are not confined to mere restrictions as to the character 
 or situation of buildings, but apply as well to restric- 
 tions as to their use. Very frequently it is stipulated 
 that no intoxicating liquors shall be sold on the prem- 
 ises. These restrictions are sustained on the ground 
 that a party has the right, in disposing of his property, 
 to prevent such a use by the grantee as might diminish 
 the value of remaining land or impair its eligibility for 
 other uses.^'^ Eestrictions prohibiting the carrying on of 
 
 Nottingham Patent Brick & Tile Co. v. Butler, L. R, 15 Q. B. D. 2G8 
 (not an injunction case); Meriwether v. Joy, 85 Mo. App. 634. 
 
 In the following cases it was held that the evidence of intention 
 was not sufficiently clear to warrant an injunction: Lowell Inst, for 
 Sav. V. City of Lowell, 153 Mass. 530, 27 N. E. 518; Dana v. Went- 
 worth, 111 Mass. 291; Jewell v. Lee, 14 Allen, 145, 92 Am. Dec. 744; 
 Sharp V. Ropes, 110 Mass. 381; Nottingham Patent Brick & Tile Co. 
 V. Butler, L. E. 16 Q. B. D. 778 (not an injunction case) ; Badger v. 
 Eoardman, 16 Gray, 559 (not an injunction case); Renals v. Cowli- 
 shaw, L. R. 9 Ch. D. 125; Knapp v. Hall, 63 Hun, 624, 17 N. Y. 
 Supp. 437; Keates v. Lyon, L. R. 4 Ch. App. 218 (not an injunction 
 case); Master v. Hansard, L. R. 4 Ch. D. 718. The use of the word 
 "heirs" in a covenant not to build without the consent of the 
 ^'grantor or her heirs" has been held to indicate an intention to 
 make the covenant personal: Hemsley v. Marlborough Hotel Co., 65 
 N. J. Eq. 167, 55 Atl. 994. It is held that when a party whose land 
 is subject to a restrictive covenant sells part of it without any re- 
 striction, he cannot enjoin the purchaser, although the other land 
 owners can. The restriction on the part sold was not intended to 
 inure to the benefit of the part retained by the plaintiff: King v. 
 Dickeson, L. R. 40 Ch. D. 596. In the following cases the injunction 
 was denied because of special facts arising in the cases: Davis v. 
 Corporation of Liecester, [1894] 2 Ch. 208; Kirby v. School Board, 
 [1896] Ch. 437. In Guardian of Tendring Union v. Dawton, [1891] 
 3 Ch. 265, the plaintiff had a charge against land for street improve- 
 ments. The land was subject to a restriction against building. The 
 aouTt held that the plaintiff could not sell the land free from the 
 restriction. In "Welch v. Austin (Mass.), 72 N. E. 972, a restriction 
 was construed so as to limit its effect to the first house built upon 
 the lot. 
 
 17 Jenks V. Pawlowski, 98 Mich. 110, 39 Am. St. Rep. 522, 56 N. W. 
 1105, 22 L. R. A. 863; Stees v. Kranz, 32 Minn. 313, 20 N. W. 241;
 
 i 277 EQUITABLE REMEDIES. 506 
 
 any obnoxious business on the premises will be susr 
 tained upon the same ground.^® Of course, to enable 
 anyone but the original covenantee to sue, it must ap- 
 pear that the restrictions were intended for the benefit 
 of the plaintiff's land. Strong evidence of this is shown 
 when similar restrictions are put into all the deeds 
 given by the grantor and the benefit is made part of the 
 inducement to the purchase. 
 
 § 277. Restrictions Which are Enforceable. — The courts 
 are divided on the question of what restrictions may 
 be attached to land. It is held that a personal, as dis- 
 tinguished from a real, obligation, insisted upon by a 
 grantor and assumed by a grantee, restricting the use 
 of land, may be enforced against the grantee and sub- 
 sequent purcha'iers with notice. Thus, in New York 
 an injunction will issue to restrain a purchaser with 
 notice from violating an agreement not to sell sand from 
 the land conveyed.^* In Massachusetts, however, it 
 has been held that where a grantor covenants not to 
 open a quarry on his remaining land, an injunction will 
 not issue against a purchaser of such remaining land.-** 
 
 Watrous v. Allen, 57 Mich. 362, 58 Am. Rep. 363, 24 N. W. 104; Wil- 
 Bon V. Hart, L. R. 1 Ch. App. 463; Sutton v. Head, 86 Ky. 156, 9 Am. 
 St. Rep. 274, 5 S. W. 410; Carter v. Williams, L. R. 9 Eq. 678; Hall 
 V. Solomon, 61 Conn. 476, 29 Am. St. Rep. 218, 23 Atl. 876; Atlantic 
 Dock Co. V. Leavitt, 54 N. Y. 35, 13 Am. Rep. 556; Star Brewing Co. 
 T. Prima3, 163 HI. 652, 45 N. E. 145; Anderson v. Rowland, 18 Tex. 
 Civ. App. 460, 44 S. W. 911. See, also, Gilmer v. Mobile & M. R. Co , 
 79 Ala. 569, 58 Am. Eep, 623 (citing Pom. Eq. Jur., § 1342). 
 
 18 HaskeU v. Wright, 23 N. J. Eq. 389; Brouwer v. Jones, 23 Barb. 
 153. 
 
 19 Hodge V. Sloan, 107 N. Y. 244, 1 Am. St. Rep. 816, 17 N. E. 335. 
 
 20 Norcrosa v, James, 140 Mass. 188, 2 N. E. 946. In this ease the 
 court said: "If it be asked what is the difference in principle be- 
 tween an easement to have land unbuilt upon, and an easement to 
 kave a quarry left unopened, the answer is, that, whether a difference 
 ©f degree or of kind, the distinction is plain between a grant or cove-
 
 507 INJUNCTION; BREACH OF CONTRACTS. S 278 
 
 ^VIle^e such a stipulation creates an invalid restraint 
 upon trade, equitable relief will be denied.^^ In Penn- 
 sjdvania it is held that where a railroad company con- 
 tributes money for the development of ore land and the 
 owners agree to give all the traflSc to and from the land 
 to such company, a party acquiring title by foreclosure 
 and taking all the benefits of the contract will be en- 
 joined from shipping over other lines. ^^ In Minnesota, 
 however, it is held that an agreement to give a railroad 
 the exclusive transportation of the products of the land 
 does not impose an obligation which attaches to or con- 
 cerns the land or its use or mode of enjoyment, and that 
 therefore it will not be enforced in equity.^^ 
 
 § 278. Liability of Grantor — Where a grantor upon 
 conveyance agrees with the grantee not to use his re- 
 maining land for certain specified purposes, the cove- 
 nant will generally be held to be for the benefit of the 
 land, and an injunction will be granted to restrain a 
 breach. Thus, a covenant not to build on a common 
 facing the land conveyed, or to fix a certain building 
 line upon his remaining land will be enforced.^* It has 
 been held that, in case of doubt, a clause creating an 
 
 nant that looks to direct physical advantage in the occupation of 
 the dominant estate, such as light and air, and one which only con- 
 cerns it in the indirect way we have mentioned." 
 
 21 West Va. Trans. Co. v. Ohio River Pipe Line Co., 22 W. Va. 
 626, 46 Am. Kep. 527; Brewer v. Marshall, 19 N. J. Eq. 537. 
 
 22 Bald Eagle Val. R. Co. v. Nittany Val. R. Co., 171 Pa. St. 284, 
 50 Am. St. Rep. 807, 33 Atl. 239, 29 L. R. A. 423. 
 
 23 Kettle River R. Co. v. Eastern R. Co., 41 Minn. 461, 43 N. W. 
 469, 6 L. R. A. 111. To same efEect see Kep^ell v. Bayley, 2 Mylne 
 & K. 517. 
 
 24 Trustees etc. v. Cowen, 4 Paige, 510, 27 Am. Dec. 80; Hills v. 
 Miller, 3 Paige, 254, 24 Am. Dec. 218; Kilpatrick v. Peshine, 24 N. J. 
 Eq. (9 C. E. Green) 206; Halls v. Newbold, 69 Mdl 265, 14 AtL 662. 
 This last is not an injunction case^i however.
 
 § 279 EQUITABLE EEMEDIES. 508 
 
 equitable restriction is to be construed against the 
 grantor.^^ 
 
 § 279. Effect of Change of Character of Neighborhood. — 
 The purpose of all these restrictions is to benefit cer- 
 tain land. When, therefore, the character of the neigh- 
 borliood has so changed that the restriction is of no 
 value to the land intended to be benefited, an injunc- 
 tion will be refused.^® For instance, if the use of land 
 is restricted to residence purposes, it would be inequi- 
 table to enforce the covenant after the neighborhood 
 has so changed that the adjoining property is used ex- 
 clusively for business purposes. To enforce it would 
 simply lessen the value of the property without ac- 
 
 25 American Unitarian Assn. v. Minot, 185 Mass. 589, 71 N. E. 551, 
 and cases cited. 
 
 20 Ewertsen v. Gerstenberg, 186 111. 344, 57 N. E. 1051, 51 L. E. A. 
 310; Jackson v. Stevenson, 156 Mass. 496, 32 Am. St. Kep. 476, 31 
 N. E. 691; Page v. Murray, 46 N. J. Eq. 325, 19 Atl. 11; Amermaa 
 V. Deane, 132 N. Y, 355, 28 Am. St. Eep. 584, 30 N. E. 741; Landell 
 V. Hamilton, 175 Pa. St. 327, 34 Atl. 663, 34 L. E. A. 227. See, also, 
 Trustees etc. v. Thacher, 87 N. Y. 311 (not an injunction case). In 
 the case first cited the court laid down the rule as follows: "Equity 
 will not, as a rule, enforce a restriction, where, by the acts of the 
 grantor who imposed it, or of those who derived title under him, 
 the property, and that in the vicinage, has so changed in its char- 
 acter and environment and in the uses to which it may be put as to 
 make it unfit or unprofitable for use if the restriction be enforced, 
 or where to grant the relief would be a great hardship on the owner 
 and of no benefit to the complainant, or where the complainant has 
 waived or abandoned the restriction; or, in short, it may be said that 
 where, from all of the evidence, it appears that it would be against 
 equity to enforce the restriction by injunction, relief will be denied, 
 and the party seeking its enforcement will be left to whatever 
 remedy he may have at law." In England it ia held that change in 
 the character of the neighborhood is ground for refusal of an injunc- 
 tion only where the alteration takes place through the acts or per- 
 mission of the plaintiff or those under whom he claims, bo that his 
 enforcing his covenant becomes unreasonable: Sayers v. Collyer, L. E. 
 28 Ch. D. 103; Duke of Bedford v. Trustees British Museum, 2 Mylne 
 & K. 552; Osborne v. Bradley, [1903] 2 Ch. 446.
 
 509 INJUNCTION; BREACH OF CONTRACTS. f 280 
 
 complishing the purpose for which the restriction was 
 made. Where, however, the restriction, notwithstand- 
 ing the change of use of the land and buildings, is still 
 of substantial value to the dominant lot, equity will 
 restrain its violation.^'^ It has been held that where 
 an injunction would work a great hardship, damages 
 may be awarded in lieu thereof.^* 
 
 § 280. Complainant Must Come into Court with Clean 
 Hands — Acquiescence. — An injunction will not be granted 
 if the plaintiff has acted so as to make its issuance in- 
 equitable. A person who seeks to enforce such a cove- 
 nant must permit no such breach of the stipulation as 
 will frustrate all the benefit that would otherwise ac- 
 crue to the other parties to the agreement. One who 
 stands by and acquiesces in repeated violations by the 
 defendant and others cannot be heard to deny the 
 right.^^ And where a party has violated the restric- 
 
 27 Landell v. Hamilton, 175 Pa, St. 327, 34 Atl. 663, 34 L. R. A. 
 227; Zipp v. Barker, 55 N. Y. Supp. 246. 
 
 28 Equitable Life Assur. Soc. v. Brenuan, 30 Abb. N. C. 260, 24 
 N, T. Supp. 784. In Langmaid v. Reed, 159 Mass. 409, 34 N. E. 593, 
 it was held that where the restriction expires by lapse of time during 
 the pendency of injunction proceedings, damages may be awarded. 
 
 29 Peek V. Matthews, L. R. 3 Eq. 515; Knight v. Simmonds, [1896] 
 2 Ch. 294; Ewertsen v. Gerstenberg, 186 111. 344, 57 N. E. 1051, 51 
 L. E. A. 310; Hemsley v. Marlborough Hotel Co., 62 N. J. Eq. 164 50 
 Atl. 14; Trout v. Lucas, 54 N. J. Eq. 361, 35 Atl. 153; Flint v. Char- 
 man, 6 App. Div. 121, 39 N. Y. Supp. 892; Moore v. Murphy, 89 Hun, 
 175, 34 N. Y. Supp. 1130; Aldrich v. Billings, 14 R. L 233. But where 
 the restriction is as to the use of buildings, the right is not lost by 
 failure to interfere with their construction: Trustees etc. v. Lynch, 
 70 N. Y. 440, 26 Am. Rep. 615. It has been held that even a grantor 
 who sells off an estate in lots with restrictions will lose his right in 
 «'quity if he permits other grantees to violate the same restrictions. 
 The rule "rests upon the equitable ground that, if anyone who has 
 a right to enforce the covenant, and so preserve the conditions which 
 the covenant was designed to keep unaltered, shall acquiesce in ma- 
 terial alterations of those conditions, he cannot thereafter ask a
 
 § 281 EQUITABLE KEMEDIES. 510 
 
 tions in his own deed, he cannot enjoin violations by 
 others, even though the covenant violated by the plain- 
 tiff is entirely different from that disregarded by 
 the defendant.^*' But where the violations by plain- 
 tiff are not substantial, and violations by other parties 
 have been in places remote from plaintiff's lot, an in- 
 junction will not be denied.^^ Of course the injured 
 party must make prompt application for relief, and 
 must not knowingly permit money to be expended with- 
 out taking any action.^^ 
 
 § 281. Remedy Independent of Amount of Injury "The 
 
 injunction in this class of cases is granted almost as a 
 matter of course upon a breach of the covenant. The 
 amount of damages, and even the fact that the plaintiff 
 has sustained any pecuniary damages, are wholly im- 
 
 court of equity to assist him in preserving them. The complainant 
 may be in privity with the defendant, and have his action at law 
 for breach of covenant, but nevertheless in this situation a court 
 of equity will not assist him": Ocean City Assn v. Chalfant, 65 
 N. J. Eq. 156, 55 Atl. 801. The same court has held, however, that 
 where no general scheme of improvement is shown, it is no answer 
 to a suit to enforce restrictions on defendant's lot to say that he hag 
 wnived like restrictions elsewhere: Haines v. Einwachter (N. J. Eq.), 
 55 Atl. 38. It has been held that where there is a general building 
 scheme, a failure to insert restrictions in a few of the deeds does 
 not prevent relief by others against those who do take subject to re- 
 strictions: Frink v. Hughes, 133 Mich. 63, 94 N. W. 601. 
 
 30 Alvord V. Fletcher, 28 App. Div. 493, 51 N. Y, Supp. 117; Page 
 V. Murray, 46 N. J. Eq. 325, 19 Atl. 11. 
 
 31 McGuire v. Caskey, 62 Ohio St. 419, 57 N. E. 53; German v. 
 Chapman, L. K. 7 Ch. D. 271; Kichards v. Eevitt, L. R. 7 Ch. D. 
 224; Lloyd v. London etc. E. Co., 2 De Gex, J, & S. 568; Western v. 
 Maedermott, L. R. 2 Ch. App. 72. 
 
 32 Hemsley v. Marlborough Hotel Co., 62 N. J. Eq. 164, 50 Atl. 
 14; Trout v. Lucas, 54 N. J. Eq. 361, 35 Atl. 153; Ocean City Assn. 
 V. Schurch, 57 N. J. Eq. 268, 41 Atl. 914. In Coles v. Sims, 5 De Gex. 
 M. & G. 1, it was held that it is not necessary to bring suit ag soon as 
 the work is started. It is sufficient if notice of the right is given 
 and suit is brought within a reasonable time.
 
 611 INJUNCTION; BEEACH OF CONTRACTS. §§ 282, 283 
 
 material. In the words of one of the ablest of modern 
 equity judges: *It is clearly established by authority 
 that there is sufficient to justify the court interfering, 
 if there has been a breach of the covenant. It is not 
 for the court, but for the plaintiffs, to estimate the 
 amount of damages that arises from the injury inflicted 
 upon them. The moment the court finds that there has 
 been a breach of the covenant, that is an injury, and the 
 court has no right to measure it, and no right to refuse 
 to the plaintiff the specific performance of his contract, 
 although his remedy is that which I have described,' 
 namely an injunction."^^ 
 
 § 282. Actual Notice not Necessary — It is not necessary 
 that a party, to be bound by such restrictions, should 
 have actual notice. Constructive notice is sufficient, 
 and the ordinary rules as to that subject apply.^* It i« 
 sufficient if the notice is contained in the chain of title. 
 It has been held that the notice consisting of knowledge 
 that all buildings erected on certain property hav® 
 been placed on a certain line is sufficients^ The cot- 
 enants are not binding, however, on one who takes with- 
 out notice.s^ 
 
 § 283. Mandatory Injunctions — Where a party know- 
 ingly, and against remonstrances, builds in violation of 
 
 33 See Pom. Eq. Jur., § 1342, and note, quoting Sir George Jessel, 
 M. R., in Leech v. Schweder, L. R. 9 Cb. 463. To the same effect, 
 see Kilpatrick v. Peshine, 24 N. J. Eq. (9 C. E. Green) 206; St. Ah- 
 drew'3 Church's Appeal, 67 Pa. St. (17 P. F. Smith) 512; Walker 
 V. McNulty, 19 Misc. Rep. 701, 45 N. Y, Supp. 42; Osborne v. Bradley, 
 [1903] 2 Ch. 446. 
 
 34 Whitney v. Union Ry. Co., 11 Gray, 359, 71 Am. Dec. 715; Cor- 
 nish V. Wiessinan, 56 N. J. Eq. 610, 35 Atl. 408. See 2 Pom. Eq. Jur., 
 § 689. 
 
 35 Tallmadge v. East River Bank, 26 N. Y. 105. 
 
 36 Atlantic City v. New Auditorium Pier Co. (N. J. Eq.), 59 AtL 
 159.
 
 S 284 EQUITABLE EEMEDIES. 512 
 
 restrictive covenants, a mandatory injunction may issue 
 to compel the removal of such portions of the building 
 as are in violation thereof. And in such a case it is no 
 answer that the violation is slight.^^ If such relief 
 were not allowed, something not much short of a right 
 would be gained by stoutly asserting an invalid claim. 
 But a mandatory injunction will not issue if the plain- 
 tiff's rights are not clear or if it is not clear that the 
 building violates the restriction.^* 
 
 § 284. Extension of the Doctrine — Application to Per- 
 sonal Property. — An interesting extension of the doctrine 
 is found in the case of Lewis v, Gollner.^^ Gollner, who 
 owned a city lot upon which he intended to build flats, 
 sold to neighbors and agreed not to erect such buildings 
 in the vicinity. He then purchased a lot across the 
 street, commenced to build a flat, and conveyed to his 
 wife when suit was threatened. It was held that the re- 
 striction applied as soon as the land was purchased by 
 the covenantor, and that the wife would be enjoined 
 from violating because she took with notice. It will 
 be observed that the restriction was applied to after- 
 acquired property. 
 
 In New York, in at least one case, the doctrine of re» 
 strictive covenants has been extended to personal prop- 
 erty. A press company agreed with plaintiff's prede- 
 cessor that it would not sell to anyone else a press upon 
 which strip tickets could be printed. The company, in 
 violation of its agreement, sold such a press to the de- 
 fendant, who had full notice. It was held that an in- 
 
 37 Attorney-General v. Algonquin Club, 153 Mass. 447, 27 N. E. 2, 
 11 K E. A. 500. 
 
 38 Gatzmer v. German Koman Catholic etc. Asylum, 147 Pa. St. 313 
 23 Atl. 452; Bowes v. Law, L. E. 9 Eq. 636. 
 
 39 Lewis V. Gollner, 129 N. Y. 227, 26 Am. St. Rep. 516, 29 N. K 
 81.
 
 513 INJUNCTION; BKEACH OF CONTRACTS. § 285 
 
 junction should issue against user of tlie press by the 
 defendant, but that the press company should be made 
 a party defendant. The party purchasing under such 
 circumstances takes the property burdened with the 
 contracts made by its owner in reference thereto and 
 which he had the power to make.^*^ 
 
 § 285. Injunctions Against Breaches of Covenants Between 
 Landlord and Tenant. — Injunctions are granted with great 
 freedom to restrain breaches of covenants between land- 
 lord and tenant. Where a lease stipulates that the 
 premises are not to be used for certain purposes, or are 
 to be used .only for certain purposes, or are to be subject 
 to certain restrictions, an injunction will issue at suit 
 of the lessor to restrain a breach.^ ^ This jurisdiction 
 is based upon the covenant, and is entirely independent 
 of the question whether the acts complained of amount 
 to waste. It will be observed, also, that the courts do 
 not confine the relief strictly to negative covenants. ^^ 
 
 40 New York Bank Note Co. v. Hamilton Bank Note Co., 83 Hun, 
 593, 31 N. Y. Supp. 1060. 
 
 41 De Wilton v. Saxon, 6 Ves. 106; Drury v. Molins, 6 Ves. 328; 
 Gillian v. Norton, 33 How. Pr, 373; Maddox v. White, 4 Md. 72, 59 
 Am. Dec. 67 (see note to this case in 59 Am. Dec); Linwood Park 
 Co. V. Van Dusen, 63 Ohio St. 183, 58 N. E. 576; Kraft v. Welch, 112 
 Iowa, 695, 84 N. W. 908; Mander v. Falke, [1S91] 2 Oh. 554; Stew- 
 ard V. Winters, 4 SanJf. Ch. 628; Bryden v. Northrup, 58 III. App. 
 233; Dodge v. Lambert, 2 Bosw. 570; Frank v. Brunneman, 8 W. Va. 
 462. In this last case the court held that a court of equity will, 
 in a proper case, grant an injunction to restrain the tenant from 
 doing a certain act, whether it amounts to waste or not, provided it 
 be directly contrary to the tenant's own covenant, or even in con- 
 travention of an agreement which may be inferred from the course 
 of dealing between the parties. See, also, Nicholson v. Rose, 4 Do 
 Gex & J. 10; Clements v. Welles, L. K. 1 Eq. 200. To the eflfeot 
 that the right to relief may be lost by laches, see Barret v. Blagrave, 
 6 Ves. 104. 
 
 42 Kraft V. Welch, 112 Iowa, 695, 84 N. W. 908. But that injunc- 
 tion is not a matter of course, by the English rule, whore the cove- 
 Equitable Remedies, Vol. I — 33
 
 { 285 EQUITABLE EEMEDIES. 514 
 
 If the agreement is necessarily exclusive the injunction 
 will issue. The grounds upon which the jurisdiction 
 rests are the inadequacy of the legal remedy and the 
 prevention of multiplicity of suits. If the lessor were 
 obliged to depend upon his remedy at law, he would 
 have difficulty in securing a proper estimate of dam- 
 ages, and besides, he would be obliged to bring suits 
 every few days. It is not necessary that substantial 
 damages be proved.^^ The lessor is entitled to have the 
 covenant performed, and he must be the one to decide 
 if he is damaged. It has been held, however, that an 
 injunction will not issue to restrain a lessee from sub- 
 letting in violation of covenant, where the lease pro- 
 vides for re-entry, for the remedy at law is said to be 
 adequate.^^ 
 
 The lessor is allowed an injunction when the lessee 
 fails to keep open a private gangway, in violation of 
 covenant, or where the lessee interferes with the lessor's 
 rights under the lease to enter upon or use the demised 
 premises.*^ Thus, relief will be granted when the lessee 
 
 nant is not negative in form, see Harris v. Boots, etc., Ltd., [1904] 
 2 Ch. 376 (covenant by assignee of lease to perform and observe the 
 negative covenants in the lease, is not itself negative, within the 
 rule.) 
 
 43 In Consolidated Coal Co. v. Schmisseur, 135 111. 371, 25 N. E. 
 795, it was held that no damage need be shown if the covenant is 
 express. "Where it is implied, substantial injury must be shown. 
 "The party not having seen fit to expressly stipulate against the 
 act in his contract, a court of equity will not by implication insert 
 it, and then enforce it, unless substantial injury is thereby to be pre- 
 vented." See, also, MeEacharn v. Colton, [1902] App. Cas. (Priv. 
 Coun.) 104, citing Doherty v. Allman, 3 App. Cas. 719 (covenant 
 by lessee not to assign lease without consent of lessor). 
 
 44 Gillian v. Norton, 33 How. Pr. 373. In Brown v. Niles, 165 
 Mass. 276, 43 N. E. 90, it was intimated that where there is a right 
 to terminate the lease for breach of a covenant, an injunction will 
 be refused. 
 
 45 Eeckwith v. Howard, 6 R. I. 1; State Bank of Nebraska v. 
 Rohren, 55 Neb. 223, 75 N. W. '543; United States Trust Co. v. 
 O'Brien, 61 N. Y. Super, Ct, (29 Jones & S.) 1, 18 N. Y. Supp. 798.
 
 615 INJUNCTION; BREACH OF CONTEACTS. § 285 
 
 refuses to allow the lessor to enter to plow the land, or 
 to post "to let" signs, when the lease expressly per- 
 mits.^® It is also held that the lessor may enjoin a 
 lessee who has covenanted not to sell any beer on the 
 premises except that furnished by the plaintiff.^'^ And 
 it is held that such a covenant may be enforced at the 
 suit of a brewing company, not a party to the contract, 
 but its beneficiary.*® In some states an insolvent lessee 
 will be restrained from disposing of property subject 
 to a landlord's lien.*® In England it is held that where 
 a lessee builds in violation of a covenant, the lessor may 
 have a mandatory injunction.^* 
 
 § 286. Same — ^Rights of Lessee. — On the other hand, 
 the lessee is frequently allowed an injunction against 
 his lessor. If the lessor covenants as to the use of his 
 remaining land, the lessee may enjoin him from com- 
 mitting a breach.^^ He may also enjoin any act by the 
 
 46 State Bank of Nebraska v. Rohren, 55 Neb, 223, 75 N. W. 543; 
 United States Trust Co. v. O'Brien, 61 N. Y. Super. Ct. (29 Jones & 
 S.) 1, 18 N. Y. Supp. 798. 
 
 47 Star Brewery Co. v. Primas, 163 HI. 652, 45 N. E. 145. la 
 Luker v. Dennis, L. E. 7 Ch. D. 227, the lessee was restrained from 
 selling beer at another public house owned by a different landlord, 
 iu violation of a covenant with the first landlord. See, also, Clegg 
 V. Hands, L. E. 44 Ch. D. 503; Stees v. Kranz, 32 Minn. 313, 20 N. 
 W. 341; Manchester Brewing Co. v. Coombs, [1901] 2 Ch. 608 (cove- 
 nant by lessee to purchase all his beer of the lessor or "his suc- 
 cessors in business," enforced by the latter). 
 
 48 Ferris v. American Brewing Co., 58 N. E. 701, 155 Ind, 539, 52 
 L. E. A. 305. 
 
 40 Gray v. Bremer & Strother, 122 Iowa, 110, 97 N. W. 991; Wal- 
 lin V. Murphy, 117 Iowa, 640, 91 N. W. 930. 
 
 50 Wood V. Cooper, [1894] 3 Ch. 671. 
 
 51 Neiman v. Butler, 46 N. Y. St. Rep. 928, 19 N. Y. Supp. 403; 
 Rankin v. Huskisson, 4 Sim. 13; Hovnanian v. Bedessern, 63 111. App. 
 353. But that a covenant not to "let" other parts of a building 
 for a business similar to lessee's does not include an agreement not 
 to "use" for such purpose, see Brigg v. Thornton, [1904] 1 Ch. 
 386 (lessor enjoined, but not the rival lessee), citing Kemp v. Bird, 
 L. R. 5 Ch. D. 974.
 
 S 286 EQUITABLE REMEDIES. 51& 
 
 lessor which will make the lease useless or of less value. 
 Thus, where the lessor has agreed to furnish water or 
 power, he may be enjoined from cutting it off.^^ Like- 
 wise, he may be enjoined from pulling down the build- 
 ing for the purpose of erecting a new one or of adding 
 to the old.'^ In these cases the courts will not consider 
 the relative inconvenience to the parties. Although the 
 construction of an expensive building may be indell- 
 nitely postponed as the result of an injunction issued 
 at the suit of a party renting onl\ a few rooms, still, if 
 the suit is brought before the building is completed or 
 substantially started, relief will not be denied. The 
 principle is that a wrong-doer should not be allowed to 
 compel an innocent party to sell at a valuation. After 
 the completion, however, a mandatory injunction will 
 not issue to compel removal.^* Where a party has 
 leased a building to be constructed according to certain 
 plans, he may enjoin a construction under other plans 
 which will deprive him of the benefit for which he has 
 contracted.^^ It is held that where a large building is 
 rented, according to a general scheme, for residence pur- 
 poses, a lessee may enjoin the lessor from using it for 
 other purposes.^® A lessee who is to take possession 
 
 62 Hendricks v. Hughes, 117 Ala. 591, 23 South. 637; Brauns v. 
 Glesige, 130 Ind. 167, 29 N. E. 1061; Traitel Marble Co. v. Chase, 35 
 Misc. Eep. 233, 71 N. Y. Supp. 628. For instances of relief against 
 interference in general, see Ingle v. Bottoms, 160 Ind. 73, 66 N. E. 
 160; Foster v. Roseberry (Tex. Civ. App.), 78 S. W. 701 (against in- 
 solvent landlord). 
 
 53 Brande v. Grace, 154 Mass. 210, 31 N. E. 633; Lynch v. Union 
 Inst, for Savings, 158 Mass. 394, 33 N. E. 603; Proskey v. Cumber- 
 land Eealty Co., 35 Misc. Rep. 50, 70 N. Y. Supp. 1125. 
 
 54 Brande v. Grace, 154 Mass. 210, 31 N. E. 633; Hessler v. Scha- 
 fer, 20 Misc. Eep. 645, 46 N. Y. Supp. 1076. 
 
 6B Backes v. Curran, 69 App. Div. 188, 74 N. Y. Supp. 723. 
 
 56 Hudson V. Cripps, [1896] 1 Ch. 265. And where a covennnt, 
 against carrying on a trade, purports to bind the lessor, his heirs, 
 executors and administrators, it may be enforced against his other
 
 617 INJUNCTION; BEEACH OF CONTEACTS. §§ 287, 28S 
 
 in the future cannot, however, enjoin future interfer- 
 ence by one who purchases with notice.'^ 
 
 § 287. Same — Rights of Sub-tenant. — Where a lessee has 
 contracted with third persons in regard to the use of the 
 premises, as where the lessee of a trotting park gives a 
 sign privilege, or where a hotel lessee gives an exclusive 
 right to a telegraph company, such person may enjoin 
 a breach.^* In such cases it is immaterial that the lease 
 prohibits the acts. 
 
 § 288. Contracts for Personal Services of Special Char- 
 acter — "Where a contract stipulates for special, unique 
 or extraordinary personal services or acts, or for such 
 services or acts to be rendered or done by a party hav- 
 ing special, unique, and extraordinary qualifications, — 
 as, for example, by an eminent actor, singer, artist, and 
 the like, — it is plain that the remedy at law of damages 
 for its breach might be wholly inadequate, since no 
 amount of money recovered by the plaintiff might en- 
 able him to obtain the same or the same kind of ser- 
 vices or acts elsewhere, or by employing any other per- 
 son. It is, however, a familiar doctrine that a court 
 of equity will not exercise its jurisdiction to grant the 
 remedy of an affirmative specific performance, however 
 inadequate may be the remedy of damages, whenever 
 the contract is of such a nature that the decree for its 
 specific performance cannot be enforced and its obedi- 
 ence compelled by the ordinary processes of the court. 
 A specific performance in such cases is said to be im- 
 
 lessees: Holloway Bros., Ltd., v. Hill, [1902] 2 Ch. 612, citing John- 
 stone V, Hall, 2 Kay & J. 414, Wilson v. Hart, L. E. 1 Ch. 463, and 
 Feilden v. Slater, L. E. 7 Eq. 523. 
 
 57 Forbes v. Carl (Iowa), 101 N. W. 100, 
 
 58 Willoughby v. Lawrence, 116 111. 11, 56 Am. Eep. 758, 4 N. E. 
 356; Western Union Tel. Co. v. Eogers, 42 N. J. Eq. 311, 11 Atl. 13.
 
 I 289 EQUITABLE EEMEDIES. 518 
 
 possible; and contracts stipulating for personal acts 
 have been regarded as the most familiar illustrations of 
 this doctrine, since the court cannot in any direct man- 
 ner compel an actor to act, a singer to sing, or an artist 
 to paint. Applying the same course of reasoning, the 
 English courts formerly held that they could not nega- 
 tively enforce the specific performance of such con- 
 tracts by means of an injunction restraining their vio- 
 lation.'** Those courts have, however, entirely receded 
 from this latter conclusion. The rule, [as late as 1891, 
 appeared to be] firmly established in England that the 
 violation of such contracts may be restrained by in- 
 junction, whenever the legal remedy of damages would 
 be inadequate, and the contract is of such a nature that 
 its negative specific enforcement is possible" ;^° and as 
 io formulated, the rule is now generally accepted and 
 applied in this country. 
 
 § 28^. Same; Lumley v. Wagner — Whether Stipulation 
 Must be Expressly Negative in Form. — The leading case on 
 the subject is Lumley v. Wagner (1852).^^ In that case 
 a famous "prima donna" agreed to sing in the com- 
 
 5» 4 Pom. Eq. Jur., $ 1343; citing Kemble v. Kean, 6 Sim. 333; 
 Kimberley v. Jennings, 6 Sim. 340. These cases were expressly over- 
 ruled by Lumley v. Wagner, but have a considerable following in 
 the earlier American cases; see, for example, Sanquirico v. Bene- 
 detti, 1 Barb. 315. 
 
 60 4 Pom. Eq. Jur., § 1343. For the recent restriction of the rule 
 in England, see the next section. The stipulation on the defendant's 
 part, express or, it may be, implied, not to engage in an employment 
 inconsistent with his contract obligation to the defendant, is freely 
 enforced by injunction, notwithstanding that the complainant 's ob- 
 ligation is frequently of a character incapable of enforcement by 
 the processes of a court of equity: See ante, § 270, notes. For the 
 bearing of these cases on the doctrine as to mutuality of remedy in 
 the law of specific performance, see post. Vol. II, chapter on Specific 
 Performance. 
 
 61 1 De Gex, M. & G. 604.
 
 619 INJUNCTION; BEEACH OF CONTRACTS. 8 289 
 
 plainant's opera-house for a certain time and not to 
 sing for anyone else during that time. The court held 
 that the services were of such a character that damages 
 would be inadequate, and that therefore an injunction 
 was proper to restrain the defendant from singing else- 
 where. The opinion of Lord Chancellor St. Leonards 
 fully reviews the previous authorities, and has been gen- 
 erally accepted, both in England and in this country, 
 upon a similar state of facts. The most frequent ap- 
 plication has been in cases of actors and actresses of es- 
 tablished reputation.^2 Contracts for their services 
 often stipulate that they shall not perform elsewhere 
 during their engagement with a particular manager. 
 Their services being extraordinary and special, an in- 
 junction is generally granted against the breach of such 
 a stipulation. It will likewise be granted when an 
 artist agrees to work for the complainant and for no 
 one else.^* Miscellaneous cases will be found in the 
 nota Upon the question whether the negative covenant 
 must be express in order to warrant an injunction, there 
 is now a direct conflict of opinion. In England it was 
 formerly (1873) held that a negative would be implied 
 in cases of this kind, and that the implied covenant 
 would be enforced by injunction.®^ Later (1891) it was 
 held that a negative will not be implied even where the 
 
 62 Daly V. Smith, 38 N. Y, Super, Ct. 158; Hayes v. Willis, 11 Abb. 
 Pr., N. S., 167; McCaull v, Braham, 16 Fed. 37; Canary v. Eussell, 
 9 Misc. Eep. 558, 30 N. Y. Supp. 122. See contra, Sanquirico v. 
 Benedetti, 1 Barb. 315. 
 
 63 Fredericks v. Mayer, 13 How. Pr. 566 {dictum). 
 Miscellaneous. — In Morris v. Colman, 18 Ves. 436, a playwright 
 
 was enjoined from writing for another theater in violation of con- 
 tract. In Philadelphia Ball Club v. Lajoie, 202 Pa. St. 210, 90 Am. 
 St. Eep. 627, 51 Atl. 973, 58 L. E. A. 227, a professional baseball 
 player was enjoined from playing with any other club. 
 
 64 Montague v. Flockton, L. E. 16 Eq. 189. See, also, De Mattes 
 V. Gibson, [1859] 4 De Gex & J. 276 {semble, injunction proper to 
 enforce a charter-party containing no express negative stipulation).
 
 I 290 EQUITABLE EEMEDIES. 520 
 
 defendant has agreed to give the "whole of his time" to 
 the complainant's business; and the case last referred 
 to was expressly overruled.*^^ This late restriction of 
 the rule in England appears to have had little influence 
 in the United States.*^^ In New York, where this class 
 of contracts has most frequently come before the courts, 
 it seems to be established that where a contract is in- 
 tended "to give the plaintiffs, not the divided, but ex- 
 clusive, services of the defendant . , , , a negative 
 clause is unnecessary."^^ 
 
 § 290. Same — No Relief upon Contracts for Ordinary Ser- 
 vices. — Where the services contracted for are neither 
 special, extraordinary nor unique, the courts generally 
 refuse equitable relief. "It may sometimes be difficult 
 to say just what is a special, unique and extraordinary 
 
 65 Whitwood Chemical Co. v. Hardman, [1891] L. E. 2 Ch. 416; 
 Lindley, L. J., took strong ground against the policy of enjoining 
 breaches of negative contracts, and spoke of Lumley v. Wagner as 
 an "anomaly." In Clarke v. Price, [1819] 2 Wils. Ch. 157, Lord 
 Eldon had refused to enjoin the defendant from writing law books 
 for another firm. There was no express negative stipulation. It 
 should be observed that this restrictive rule of Whitwood Chemical 
 Co. V. Hardman, supra, applies to contracts for personal ser- 
 vices only; in other kinds of contracts a negative may still be im- 
 plied; 80 explained in the recent case. Metropolitan Electric Supply 
 Co., Ltd., V. Gender, [1901] 2 Ch. 799. 
 
 66 Holding an express negative necessary, see the early case. Bur- 
 ton V. Marshall, 4 Gill, 487, 45 Am. Dec. 171; contra, Cort v. Lassard, 
 18 Or. 221, 17 Am. St. Kep. 726, 22 Pac. 1054, 6 L. E. A. 653. In 
 this case the court said: "The agreement to perform at a particular 
 theater for a particular time of necessity involves an agreement 
 not to perform at any other during that time. According to the 
 true spirit of such an agreement, the implication precluding the de- 
 fendant from acting at any other theater during the period for 
 which he has agreed to act for the plaintiff follows as inevitably 
 and logically as if it was expressed." 
 
 67 Hoyt V. Fuller, 19 N. Y. Supp. 962; Duff v. Eussell, 133 N. Y. 
 678, 31 N. E. 622, affirming 41 N. Y. St. Eep. 955, 16 N. Y. Supp. 958, 
 and 60 N. Y. Super. Ct. 80, 14 N. Y. Supp. 134, on opinion in latter 
 case; Daly v. Smith, 38 N. Y. Sup. Ct. 158 {dictum).
 
 621 INJUNCTION; BREACH OF CONTEACTS. § 291 
 
 service, or whether the employee possesses special, uni- 
 que or extraordinary qualifications. The solution may 
 generally be reached by an inquiry as to whether a sub- 
 stitute for the employee can readily be obtained, and 
 whether such substitute will substantially answer the 
 purpose of the contract; in other words, whether the 
 individual service specially contracted for is essential 
 to prevent irreparable injury."®^ Accordingly, when it 
 appears that the plaintiff has himself substituted an- 
 other in place of the defendant, an injunction has 
 been refused.^® In the note will be found a number of 
 instances where it has been held that the employment 
 is not so special as to warrant an in j unction J'^ 
 
 § 291. Limitations — It is held that an employee can- 
 not restrain his employer from discharging him.'^^ In 
 
 68 Strobridge Lithographing Co. v. Crane, 12 N. Y. Supp. 898. 
 
 69 W. J. Johnston Co. v. Hunt, 66 Hun, 504, 21 N. Y. Supp. 314, 
 affirmed, 142 N. Y. 621, 37 N. E. 564. 
 
 70 Lithographer— Sttobridge Lith. Co. v. Crane, 58 Hun, 611, 12 
 N. Y. Supp. 898. Solicitor— Burney v. Eyle, 91 Ga. 701, 17 S. E. 986. 
 Miscellaneous — Rogers Mfg. Co. v. Rogers, 58 Conn. 356, 20 Atl. 
 467, 18 Am. St. Rep. 278, 7 L. R. A. 779; Universal Talking Mach. 
 Co. V. English, 34 Misc. Rep. 342, 69 N. Y. Supp. 813; Carter v. Fer- 
 guson, 58 Hun, 569, 12 N. Y. Supp. 580 (actor of no extraordinary 
 qualifications; quoting Pom. Eq. Jur., § 1343); Cort v. Lassard, 18 
 Or. 221, 17 Am. St. Rep. 726, 22 Pac. 1054, 6 L. R. A. 653 (acrobat) ; 
 Kimberly v. Jennings, 6 Sim. 340; Chain Belt Co. v. Von Spreckelsen, 
 117 Wis. 106, 94 N. W. 78. See, also, Eberman v. Bartholomew, [1898] 
 1 Ch. 671 (agreement of traveling agent of wine merchants "not to 
 engage in any other business" during the ten years' term of employ- 
 ment contracted for; injunction refused, on the ground that the 
 stipulation was unreasonable). 
 
 71 Davis V. Foreman, [1S94] 3 Ch. 654; Miller v. Warner, 42 App. 
 Div. 208, 59 N. Y. Supp. 956; Stewart v. Pierce, 116 Iowa, 733, 69 
 N. W. 234. See, also, Welty v. Jacobs, 171 111. 624, 49 N. E. 723, 
 40 L. R. A. 98; Stocker v. Brockelbank, 3 Macn. & G. 250. But 
 Bee Jones v. Williams, 139 Mo. 1, 61 Am. St. Rep. 436, 39 S. W. 48rt, 
 40 S. W. 353, 37 L. R. A. 682, where such relief was allowed on spe- 
 cial facts.
 
 if 292,293 EQUITABLE REMEDIES. 522 
 
 general, in applying the remedy the courts will be bound 
 by the equitable principles which govern the remedy of 
 specific performance. The rights of third persons will 
 be considered; and if the granting of equitable relief 
 will work an injustice to innocent third parties who 
 have contractual rights with the employee, it will be 
 refused.'^ Nor will an injunction be granted when the 
 agreement is uncertain or where it would work a hard- 
 ship on the defendant.'^^ By hardship must be under- 
 stood such hardship as would be a defense to a bill for 
 specific performance. 
 
 § 292. Other Agreements, Generally Negative in Their 
 Kature. — "In all these agreements, where the stipula- 
 tions are expressly negative in form, and where they be- 
 long to a class of which the specific performance would 
 be enforced if they were affirmative in form, an injunc- 
 tion to restrain their violation will be granted as a 
 general rule, and almost as a matter of course. The 
 inadequacy of the legal remedy is the criterion ; but the 
 fact that the agreements belong to a class which would 
 be specifically enforced necessarily shows that the legal 
 remedy is inadequate."'^* Among the commonest of 
 Buch agreements are those (1) not to carry on a trade 
 or (2) not to compete; and (3) agreements giving an ex- 
 elusive right. 
 
 § 293. Agreements not to Carry on a Trade, Express or 
 Implied — Sale of Good-will. — A class of cases where in- 
 junction is held to be a proper remedy to restrain the 
 
 72 Eoosen v. Carlson, 46 App. Div. 233, 47 App. Div. 638, 62 N. Y. 
 Supp. 157. 
 
 73 Arena Athletic Club v, McPartland, 41 App. Div. 352, 58 N. 
 Y. Supp. 477; Metropolitan Exhibition Co. v. Ewing, 42 Fed. 198, 
 7 L. R. A. 381; Rice v. D'Arville, 162 Mass, 559, 39 N. E. 180. 
 
 74 Pom. Eq. Jur., § 1344.
 
 623 INJUNCTION; BREACH OF CONTRACTS. § 293 
 
 breach of contract is where there is an agreement not 
 to engage in a particular profession or trade. A dis- 
 cussion of the rules as to the validity of contracts in 
 restraint of trade belongs properly to a treatise on the 
 law of contracts. Where such a contract is illegal, of 
 course equity will not enjoin a breach f^ the questions to 
 be here considered, therefore, concern the remedy by 
 injunction against violations of valid contracts of this 
 character. 
 
 It is very common, when a tradesman sells his busi- 
 ness to another or retires from a partnership, to insert 
 a stipulation in the agreement that the selling party 
 shall not engage in a similar business within certain 
 prescribed limits. These agreements are usually up- 
 held as reasonable restraints of trade. Equity courts 
 will grant injunctive relief against violations because 
 generally the remedy of damages is inadequate.^* The 
 
 75 See, also, 2 Pom. Eq. Jur., § 934. 
 
 76 Rolfe V. Rolfe, 15 Sim. 88; Williams v. Williams, 2 Swans. 253; 
 Nordenfelt v. Maxim-Nordenfelt G. & A. Co., Ltd., [1894] App. Cas. 
 S35; Davis v. A. Booth & Co., 131 Fed. 31, 65 C. C. A. 269 (affirming 
 127 Fed. 875); American Fisheries Co. v. Lennen, 118 Fed. 869; 
 Moore etc. Hardware Co. v. Towers Hardware Co., 87 Ala. 206, 13 
 Am. St. Rep. 23, 6 South. 41; Brown v. Kling, 101 Cal. 295, 35 Pac. 
 9?5; Mullis v. Nichols, 105 Ga. 465, 30 S. E. 654; W. F. Markert & 
 Co. V. Jefferson (Ga.), 50 S. E. 398; Frazer v. Frazer Lubricator Co., 
 121 111. 147, 2 Am. St. Rep. 73, 13 N, E. 639; Beard v. Dennis, 6 Ind. 
 200, 63 Am. Dec. 380; Baker v. Pottmeyer, 75 Ind. 451; Eisel v. 
 Haves, 141 Ind. 41, 40 N. E. 119; Swigert v. Tilden, 121 Iowa, 650, 
 100 Am. St. Rep. 374, 97 N. W. 82; Pohlinan v. Dawson, 63 Kan. 
 471, 88 Am. St. Rep. 249, 65 Pac. 689, 54 L. R. A. 913; Gueraud v. 
 Bandelet, 32 Md. 561, 3 Am. Rep. 164; Anchor Elect. Co. v. Hawkes, 
 171 Mass. 101, 68 Am. St. Rep. 403, 50 N. E. 509, 41 L. R. A. 189; 
 Ropes V. Upton, 125 Mass. 258; Angler v. Webber, 96 Mass. (14 
 Allen) 211, 92 Am. Dec. 748; Up River Ice Co. v. Denier, 114 Mich. 
 296, 68 Am. St. Rep. 480, 72 N. W. 157; Beal v. Chase, 31 Mich. 
 490; Grow v. Seligman, 47 Mich. 607, 41 Am. Rep. 737, .11 N. W. 
 404; Hubbard v. Miller, 27 Mich. 15, 15 Am. Rep. 153; Downing v. 
 Lewis, 56 Neb, 386, 76 N. W. 900; Bailey v. Collins, 59 N. H. 459; 
 Richardson v. Peacuck, 26 N. J. Eq. 40, 28 N. J. Eq. 151, 33 N. J.
 
 i 293 EQUITABLE EEMEDIES. 524 
 
 relief is not confined to contracts between parties en- 
 gaged in trade, but applies equally to contracts be- 
 tween professional men, such as physicians, lawyers 
 and the likeJ^ It must be certain that there has been 
 a violation before the court will interfered* The bene- 
 
 Eq. 597; Scudder v. Kilfoil, 57 N. J. Eq. 171, 40 Atl. 602, 43 L. K. A. 
 86; Fleckenstein Bros. Co. v. Fleckenstein (N. J. Eq.), 53 Atl. 1043; 
 Jarvis v. Peck, 10 Paige, 118; A. Booth & Co. v. Seibold, 37 Misc. 
 Kep. 101, 74 N. Y. Supp. 776; Zimmerman v. Gerzog, 13 App. Div. 
 210, 43 N. Y. Supp. 339; United States Cordage Co. v. Wm. Wall's 
 Sons Eope Co., 90 Hun, 429, 35 N. Y. Supp. 978; Diamond Match 
 Co. V. Koeber, 106 N. Y, 473, 60 Am. Eep. 464, 13 N. E. 
 419; Francisco v. Smith, 143 N. Y, 488, 38 N, E. 980; Baumgartner 
 V. Broadway, 77 N. C. 8; Kramer v. Old, 119 N. C. 1, 25 S. E. 813, 
 66 Am. St, Eep. 650, 34 L. E, A. 389; Cowan v. Fairbrother, 118 N. 
 C. 406, 54 Am. St. Eep. 733, 24 S. E. 212, 32 L. E. A. 829; Morgan 
 V. Perhamus, 36 Ohio St. 517, 38 Am. Eep. 607; Patterson v. Glass- 
 mire, 166 Pa. St. 230, 31 Atl. 40; Stofflet v. Stofflet, 160 Pa. St. 529, 
 28 Atl. 857; Monongahela Eiver Consol. Coal & Coke Co. v. Jutte 
 (Pa.), 59 Atl. 1088; Oakdale Mfg. Co. v. Garst, 18 E. I. 484, 49 Am. 
 St. Eep. 784, 28 Atl. 973, 23 L. E. A. 639; Jackson v. Byrnes, 103 
 Tenn. 698, 54 S. W. 984 (dictum). See, also. Turner v. Evans, 2 Da 
 Gex, M. & G. 740. In O'Neal v. Hines, 145 Ind. 32, 43 N. E. 94G, 
 the court laid down the rule as follows: "It is a general rule that 
 when one has made a valid contract with another that he will not 
 engage in a certain business or occupation, and it is shown by the 
 other party to the contract that the same is being violated to hia 
 injury, he is entitled to an injunction restraining the offending party. 
 This is upon the ground that from the nature of the case just and 
 adequate damages cannot be estimated for a breach of the contract." 
 
 77 In the following cases the rule was laid down in contracts be- 
 tween physicians: McCurry v. Gibson, 108 Ala. 451, 51 Am. St. Eep. 
 177, IS South. S'Jo; Beatty v. Coble, 142 Ind. 329, 41 N. E. 590; 
 Cole V. Edwards, 93 Iowa, 477, 61 N. W. 940; Doty v. Martin, 32 
 Mich. 462; Timmerman v. Dever, 52 Mich. 34, 50 Am. Eep. 240, 17 
 N. W. 230; McClurg's Appeal, 58 Pa. St. 51; Wilkinson v. Coiley, 
 164 Pa. St. 35, 30 Atl. 286, 35 Week. Not. Cas. 177, 26 L. E. A. 114; 
 French v. Parker, 16 E. I. 219, 27 Am. St. Eep. 733, 14 Atl. 870; Butler v. 
 Burleson, 16 Vt. 176; Hulen v. Earel, 13 Okla. 246, 73 Pac. 927 (dic- 
 tum); Eyan v. Hamilton, 203 HI. 191, 68 N. E. 781. Lawyer— Whitta- 
 ker V. Howe, 3 Beav. 383. Dentist — Niles v. Fenn, 12 Misc. Eep. 470, 
 33 N. Y. Supp. 857. Playwright — Moris v. Coleman, 18 Ves. 436. 
 
 78 Caswell V. Gibbs, 33 Mich. 331; Bowers v. Whittle, 63 N. H. 
 147, 56 Am. Eep. 499.
 
 625 INJUNCTION; BREACH OF CONTRACTS, § 293 
 
 fit of the covenant may be assigned with the business, 
 and the assignee's rights will be protected by injunc- 
 tion.^® What amounts to a breach is a question of 
 substantive law ; but the courts of equity will not allow 
 a violation under color of compliance with the letter 
 of the contract Thus, an injunction will not be denied 
 because the promisor has taken in a partner or has 
 formed a corporation to compete with the plaintiff, or 
 has put the business in his wife's name.^*^ Where it 
 appears that the parties engaging in business with the 
 party violating the agreement had notice of its terms, 
 they may be enjoined from carrying it on in connection 
 with him.*^ Third parties, however, will not be en- 
 joined from receiving business aid from such person, 
 nor from purchasing goods from him.^^ As the injury 
 is difficult to measure in all these cases, only nominal 
 damage need be shown.^^ The injured party need not 
 
 79 Cowan ▼. Fairbrother, 118 N. C. 406, 54 Am. St. Rep. 733, 24 
 S. B. 212, 32 L. R. A. 829; Francisco v. Smith, 143 N. Y. 488, 38 
 N. E. 980; Fleckenstein Bros. Co. v. Fleckenstein (N. J. Eq.), 53 
 Atl. 1043. 
 
 80 Beard v. Dennis, 6 Ind. 200, 63 Am, Dec. 380; Kramer v. Old, 
 119 N. C. 1, 56 Am. St, Rep, 650, 25 S. E, 813, 34 L. R. A, 389; Up 
 River Ice Co. v. Denier, 114 Mich, 296, 68 Am, St, Rep. 480, 72 N. 
 "W. 157; Pittsburg Stove & Range Co. v. Pennsylvania Stove Co,, 208 
 Pa. St. 37, 57 Atl, 77. When the business belongs to the wife, how- 
 ever, and not to the husband, she is not bound by the covenant: Smitli 
 V. Hancock, [1894] 2 Ch. 377; Fleckenstein Bros, Co. v, Flecken- 
 stein (N. J. Eq.), 57 Atl, 1025, In Gophir Diamond Co. v. Wood, 
 [1902] 1 Ch. 950, it was held that a covenant not to become directly 
 or indirectly "interested" in a similar business to that of the cove- 
 nantee does not prevent the covenantor from becoming a servant at 
 a fixed salary in a similar business. 
 
 81 A. Booth & Co. V. Seibold, 37 Misc. Rep. 101, 74 N, Y. Supp. 
 776. 
 
 82 Appeal of Harkinson, 78 Pa. (28 P. F. Smith) 196, 21 Am. Rep. 
 9; Reeves v. Sprague, 114 N. C. 647, 19 S. E. 707. 
 
 83 Brown v. King, 101 CaL 295, 35 Pac. 995; Andrews ▼. Kings- 
 bury (HI.), 72 N. E. 11.
 
 § 293 EQUITABLE EEMEDIES. 526 
 
 establish his right at law.®"* In Pennsylvania, it is held 
 that damages will be awarded in connection with the 
 equitable relief.^' 
 
 It is questionable whether an express negative cove- 
 nant is necessary, the same conflict of opinion existing 
 here as in regard to injunctions against the violation of 
 contracts of personal service. In some jurisdictions it is 
 held as a matter of substantive law that no covenant not 
 to engage in business can be implied from a sale of good- 
 will, and of course an injunction is denied.^^ In a late 
 case it is said that "where the good-will of a business is 
 sold, without further provision, the vendor may set up 
 a rival business, but he is not entitled to canvass the 
 customers of the old firm, and may be restrained by in- 
 junction from soliciting any person who was a customer 
 of the old firm prior to the sale to continue to deal with 
 the vendor or not to deal with the purchaser."*^ It has 
 been held that where a physician sells the good-will of 
 his practice or agrees to retire, an injunction will issue 
 to restrain him from continuing in practice.*** And an 
 
 84 Carll V. Snyder (N. J. Eq.), 26 Atl. 977. 
 
 85 Stofflet V. Stofflet, 160 Pa. St. 529, 28 Atl. 857; Patterson v. 
 Glassmire, 166 Pa. St. 230, 31 Atl. 40. 
 
 86 Jackson v. Byrnes, 54 S. W. 984, 103 Tenn. 698; Newark Coal 
 Co. V. Spangler, 54 N. J. Eq. 354, 34 Atl. 932; Close v. Flesher, 8 
 Misc. Eep. 299, 28 N. Y. Supp. 737; MacMartin v. Stevans (Wash.), 
 79 Pae. 1099. For a definition of "good-will," see 4 Pom. Eq. Jur., 
 S 1355. 
 
 87 Althen v. Vreeland (N. J. Eq.), 36 Atl. 479. See similar state- 
 ments in Zantierjian v. Boornazian (R. I.), 55 Atl. 199; Trego v. 
 Hunt, [1896] App. Cas. 7; Gillingham v, Beddow, [1900] 2 Ch. 242; 
 Curl Brothers, Ltd., v. Webster, [1904] 1 Ch. 685; Eauft v. Reimers 
 (111.), 65 N. E. 720. The vendor will not be restrained from 
 merely dealing with former customers; Leggott v. Barrett, 15 Ch. 
 D. 306. It has been held that this rule does not apply as against 
 a bankrupt whose good-will has been sold by his trustees in bank- 
 ruptcy: Walker v. Moltram, 19 Ch. D. 355. 
 
 88 Dwight V. Hamilton, 113 Mass. 175; Beatty v. Coble, 142 Ind. 
 329, 41 N. E. S90.
 
 527 INJUNCTION; BREACH OF CONTRACTS. 9 294 
 
 injunction has been granted to restrain parties who 
 have sold good-will from using a firm name similar to 
 that of the firm from which they have retired.^* 
 
 An injunction will not issue when it would be in- 
 equitabla Thus, when a party signs an agreement 
 without reading it and plaintiff makes no objection un- 
 til the defendant has expended a large sum in fitting 
 up his place of business, an injunction will be refused.^*^ 
 Likewise, it will not issue against mere nominal mem- 
 bers of a firm, the active members of which have agreed 
 for the firm not to engage in certain business.^^ 
 
 In some jurisdictions it is held that these agreements 
 are valid and will be enforced only when the promisor 
 sells out his business or retires from the firm.'^ 
 
 § 294. Same — Injunctions Against Employees. — Where 
 an employee stipulates that he will not engage in simi- 
 lar business within a certain territory for a certain pe- 
 riod after the termination of his employment, an in- 
 junction will issue to restrain a breach.^^ But where 
 the restraint is unreasonable and extends beyond any- 
 
 89 Myers v. Kalamazoo Buggy Co., 54 Mich. 215, 52 Am. Rep. 811, 
 19 N. W. yiii, 20 N. W. -545. 
 
 90 Smith V. Brown, 164 Mass. 584, 43 N. E. 101. 
 
 91 United States Cordage Co. v. Wm. Wall's Sons Rope Co., 90 
 Hun, 429, 35 N. Y. Supp. 978. 
 
 92 Chapin v. Brown, 83 Iowa, 156, 32 Am. St. Rep. 297, 48 N. W. 
 1074, 12 L. R. A. 428. Thus, in California, an agreement by a vendor 
 of stock in a corporation not to engage in the same business cannot 
 be enforced: Dodge Stationery Co. v. Dodge, 145 Cal. 380, 78 i'ac-. 
 879. 
 
 93 Davies v. Racer, 72 Hun, 43, 25 N. Y. Supp. 293; A. L. & J. J. 
 Reynolds Co. v. Dreyer, 12 Misc. Rep. 368, 33 N. Y. Supp. 649; Hayes 
 V. Doncan, [1899] 2 Ch. 13. See, also, Robinson v. Heuer, 67 L. J. 
 Oh. 644, [1898] 2 Ch. 451, 79 L. J., N. S., 281, 47 Week. Rep. 31 
 (not to compete during term of employment); Dubowski v, Goldstein, 
 U896] 1 Q. B. 478.
 
 § 295 EQUITABLE EEMEDIES. 52* 
 
 thing apparently necessary for the protection of the 
 employer, an injunction will be refused.** 
 
 § 295. Agreements not to Compete. — Instances of such 
 agreements enforced by injunction are: An agreement 
 by a rival quarry not to supply stone to a municipal 
 corporation during a certain period ;^^ an agreement 
 by a city with a water company not to build rival water- 
 works f a contract between plaintiff, a manufacturer 
 of patterns, and defendant, a dealer, whereby the lat- 
 ter was appointed agent of the former for the sale of 
 its patterns, defendant covenanting not to sell, or allow 
 to be sold, on his premises any other make of patterns; 
 specific performance was refused of the contract in its en- 
 tirety, but defendant enjoined from selling patterns 
 of another make.^'^ It has been held, however, that a 
 vendor cannot restrain his vendee from selling a pat- 
 ented article at less than a fixed price, in violation of 
 contract.** 
 
 94 Herreshoff v. Boutineau, 17 E. I. 3, 33 Am. St. Rep. 850, 19 AtL 
 712, 8 L. E. A. 469; Stanley v. Pollard, 5 Mise. Eep. 490, 2d N. Y. 
 Supp. 766. See, also, Ehrmann v. Bartholomew, 67 L. J. Ch. 319, 
 [1898] 1 Ch. 671, 78 L. J., N. S., 646, 46 Week. Eep. 509. 
 
 96 Jonea v. North, L. E. 19 Eq. 426. 
 
 M City of Walla Walla v. Walla Walla Water Co., 172 U. S. 1^ 
 19 Sup. Ct. 77; the remedy at law by recovery of damages held to 
 be inadequate: Columbia Ave. etc. Co. v. City of Dawson, 130 Fed. 
 152; Farmers' Loan & Trust Co. v. City of Sioux Falls, 131 Fed. 890. 
 See post, § 299. 
 
 97 Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 66, 68 Am. 
 St. Eep. 749, 51 N. E. 408, affirming 30 App. Div. 564, 52 N. Y. Supp. 
 433, and reversing 22 Misc. Eep. 624, 50 N. Y. Supp. 1056. It is 
 observed that "the court should extend its remedy as far as it i» 
 able, and thus prevent the principal defendant not only from making 
 money by breaking its agreement, but from inflicting a double wrong 
 upon the plaintiff by depriving it of the right to sell, and conferring 
 that right on a business competitor." For further instances of such 
 contracts, see Eoyer Wheel Co. v. Miller, 20 Ky, Law Eep. 1831, 50 
 S. W. 62.* 
 
 98 National Phonograph Co. v. Schlegel, 117 Fed. 624.
 
 620 INJUNCTION; BREACH OF CONTRACTS. S 296 
 
 § 296. Contracts Conferring an Exclnsive Right. — Where 
 a contract confers on one party an exclusive right or 
 privilege, a breach of the contract through conduct of 
 the other party inconsistent with the exclusiveness of 
 the right or privilege may be enjoined, subject to the 
 general principle as to the inadequacy of the legal rem- 
 edy for the breach. It is immaterial that such incon- 
 sistent conduct is not prohibited by the express terms 
 of the contract. Contracts giving to one party an ex- 
 clusive right to the personal services of another are a 
 common species of agreements of this general class, and 
 have already been discussed.^^ Contracts giving the 
 plaintiff the exclusive right to buy articles manufac- 
 tured or produced by the defendant, or constituting 
 the plaintiff the sole agent for their sale, have fre- 
 quently been enforced by enjoining the sale of the ar- 
 ticles by the defendant to third parties, if the article 
 is of such a character that an agreement for its sale 
 would be specifically enforced. ^'^'^ Other instances of 
 
 69 See ante, §§ 288-291. For injunction to protect exclusive fran- 
 chises, see chapter XXVII. 
 
 100 Dietrichsen v. Cabbum, 2 Phill. Ch. 52, where defendant, hav- 
 ing agreed to employ plaintiff as agent and supply him with oil at 
 forty per cent discount, and not to allow more than twenty-five per 
 cent discount to others, was enjoined from committing a breach of 
 the latter stipulation; Donnell v. Bennett, L. R. 22 Ch, D, 835, injunc- 
 tion against breach of express negative covenant not to sell fish to 
 manufacturers other than the plaintiff; Singer Sewing Machine Co. 
 V. Union Button Hole Co., 1 Holmes, 253, Fed. Cas. No. 12,904, con- 
 tract making plaintiff sole agent for a patented article; Lowenbein 
 v. Fuldner, 2 Misc. Rep. 176, 21 N. Y. Supp. 615, contract to manu- 
 facture for plaintiff, and no one else, furniture of a special and 
 unique design furnished by plaintiff; Valley Iron Works Mfg. Co. 
 V. Goodwick, 103 Wis. 436, 78 N. W. 1096, specific performance of 
 agreement to transfer patent, and injunction against disposing of 
 it to other parties; Manhattan Mfg. etc. Co. v. New Jersey etc. Co., 
 23 N. J. Eq. 161, contract by stock-yards company giving complain- 
 ant, a fertilizer company, sole right to remove offal from its prem- 
 ises enforced by injunction against its lessee with notice; injimo* 
 Equitable Remedies, Vol. I — 34
 
 § 297 EQUITABLE REMEDIES. 530^ 
 
 exclusive rights protected by injunction are enumer- 
 ated in the note.^*^^ 
 
 § 297. Miscellaneous Agreements, Expressly Negative. — 
 The following contracts, enforced by injunction, are 
 given as illustrations merely : An agreement not to ring 
 
 tion to avoid multiplicity of suits, and because of impossibility of 
 computing damages; Myers v. Steele Mach. Co. (N. J. Eq.), 57 Atl. 
 1080. On the other hand, a breach of a contract to sell to plaintiflE 
 all the coal defendants should get from a certain mine will not be 
 enjoined, since coal is not an article a contract for the sale of which 
 will be specifically enforced: Fothergill v. Rowland, L. R, 17 Eq. 132. 
 So, in case of a contract to sell a certain amount of wood to the 
 plaintiff every year for a period of years, and not to sell to anyone else 
 BO as to prevent fulfillment of the contract, injunction was refused: 
 St. Regis Paper Co. v. Santa Clara Lumber Co., 55 App. Div. 225, 67 
 N. Y. Supp. 149, reversing 31 Misc. Rep. 695, 66 N. Y, Supp. 59. 
 
 101 Exclusive right of removing garbage, or dead animals, under 
 contract with a city: National Fertilizer Co, v. Lambert, 48 Fed. 458; 
 Sanitary Reduction Works of San Francisco v. California Reduction 
 Co., 94 Fed. 693. Contract allowing plaintiff exclusive right for one 
 year to display an advertising curtain in front of the stage of de- 
 fendant's theater: Beer v, Canary, 2 App. Div. 518, 38 N. Y. Supp. 
 23 (defendant insolvent; plaintiff had a number of advertising con- 
 tracts; and damages could not be ascertained). A contract to pur- 
 chase from plaintiff exclusively all of a certain article which defend- 
 ant should need: Petrolia Mfg. Co. v. Jenkins, 29 App. Div. 403, 51 
 N. Y. Supp. 1028 (injunction to avoid multiplicity of suits for 
 breaches of the contract). But in James T. Hair Co. v. Huekins, 56 
 Fed. 366, 5 C. C. A. 522, 12 U. S. App. 359, it was held, without dis- 
 cussion, that for breach of defendant's contract to use plaintiff's hotel 
 register in his business, and no others, the remedy at law was ade- 
 quate. 
 
 In the recent case of Manchester Ship Canal Co. v. Manchester 
 R. Co., [1901] 2 Ch. 37, affirming [1900] 2 Ch. 352, the contract 
 was, to give the plaintiff the "first refusal" of certain land. It 
 was held that a negative was involved, and an injunction was 
 granted against the owner and an intending purchaser. In Metro- 
 politan El. Supply Co., Ltd., v. Gender, [1901] 2 Ch. 799, there was 
 a contract by a consumer to take the whole of the electric energy 
 required for certain premises, from the company; held, in substance, 
 an agreement not to take such energy from another source, and in- 
 junction awarded.
 
 531 INJUNCTION; BREACH OF CONTRACTS. S 29T 
 
 a certain bell;^"^ agreements not to disclose trade se- 
 crets ;^*'^ by subscribers to news associations, not to pub- 
 lish the information received or furnish it to others;*"* 
 by the vendor of the plates of a book, not to publish 
 the book except under certain conditions;*"' ante-nup- 
 tial contract by woman, not to apply for dower ;*°* mu- 
 tual covenants of persons owning two sides of a build- 
 ing that no change shall be made in the front without 
 
 mutual consent.*®^ Other illustrations are given in the 
 note.*°8 
 
 102 Martin v. Nutkin, 2 P. Wms. 266, the leading case. Ringing 
 the bell was an injury to one of the complainants, who was an in- 
 valid. 
 
 103 Peabody v. Norfolk, 98 Mass. 452, 96 Dec. 664; S. Jarvia 
 Adams Co. v. Knapp, 121 Fed. 34; Murjahn v. Hall, 119 Fed. 186; 
 Stone V. Goss, 65 N. J. Eq. 756, 55 Atl. 736; Fralich v. Despar, 165 
 Pa. St. 24, 30 Atl. 521; Salomon v. Hertz, 40 N. J. Eq. 400, 2 Atl. 
 379; National Gum & M. Co, v. Braendly, 27 App. Div. 219, 51 N. 
 Y. Supp. 93. See ante, § 268. 
 
 104 Gold & Stock Tel. Co. v. Todd, 17 Hun (N. Y.), 548; Board 
 of Trade v. Christie Grain & Stock Co. (U. S.), 25 Sup. Ct. 637 
 (against divulging board of trade quotations, although they may 
 concern illegal acts). See, also, F. W. Dodge Co. v. Construction 
 Information Co., 183 Mass. 62, 97 Am. St, Rep. 412, 66 N. E. 204, 60 
 L. R. A. 810 (agreement apparently not expressly negative). 
 
 105 Standard Am. Pub. Co, v, Methodist Book Concern, 33 App. 
 Div, 409, 54 N, Y. Supp. 55. 
 
 106 Cummings v. Cummings (R, I.), 57 Atl. 302. 
 
 107 First Nat. Bank v. Portsmouth Sav, Bank, 71 N. H, 547, 5S 
 Atl, 1017. 
 
 108 Thus, one who procures a retailer to violate an agreement not 
 to sell goods of a manufacturer at less than a certain price, may 
 himself be enjoined from so selling: Garst v. Charles (Mass.), 72 N. 
 E, 839. See, also, for an application of the same principle. Exchange 
 Tel. Co., Ltd., V. Central News, Ltd., [1897] 2 Ch. 48. In general, 
 see Dickenson v. Grand Junction Canal Co., 15 Beav, 260, 2 Keener 'a 
 Cas. on Eq, Jur. 312 (injunction against diverting water). In the 
 following cases injunctions were issued to restrain a railroad from 
 running trains past a station without stopping, in violation of con- 
 tract: Rigby V. Great West. Ry., 2 Phill. Ch. 44; Hood v. North 
 East Ry., L. R. 8 Eq. 666, 5 Ch. 525; Phillips v. Great Western Ey. 
 Co., L. R. 7 Ch. 409.
 
 § 298 EQUITABLE KEMEDIES. 632 
 
 § 298. Miscellaneous Agreements, not Expressly Ne^tive. 
 Threatened breaches of the contracts of gas and water 
 companies, by shutting off the supply of gas or water 
 from the consumer, have frequently been restrained by 
 injunction. It is plain that in such cases the damages 
 which will be suffered by the consumer may either be 
 irreparable, or not readily capable of ascertainment, 
 and that the recovery of damages may involve a multi- 
 plicity of actions at law. Moreover, there is usually 
 no other source of supply of which the plaintiff may 
 avail himself.^"* It has also been held that a munici- 
 pality may enjoin a gas company from charging rates 
 
 109 Gallagher v. Equitable Gaslight Co., 141 Gal. 699, 75 Pac. 329; 
 Edwards v. Milledgeville Water Co., 116 Ga. 201, 42 S. E. 417; Xenia 
 Eeal Est. Co. v. Macy, 147 Ind. 568, 47 N. E. 147; Simpson v. Pitts- 
 burgh Plate Glass Co., 28 Ind. App. 343, 62 N. E. 753; Graves v. 
 Key City Gas Co., 83 Iowa, 714, 50 N. W. 283; Wood v. City of Au- 
 burn, 87 Me. 287, 32 Atl. 906, 29 L. B. A. 376; Horsky v. Helena Cons. 
 Water Co., 13 Mont. 229, 33 Pac. 689 (breach would ruin plaintiff 'a 
 business); Sickles v. Manhattan Gas-Light Co., 64 How. Pr. 33; 
 Whitenian v. Fayette Fuel Gas Co., 139 Pa. St. 492, 20 Atl. 1062 
 (mandatory preliminary injunction) ; School District of Borough of 
 Sewickley v. Ohio Val. Gas Co., 154 Pa. St. 539, 25 Atl, 868. Contra, 
 in Loy v. Madison etc. Gas Co., 156 Ind. 332, 58 N. E. 844, plaintiffs 
 ■were held not entitled to enjoin a gas company from shutting off 
 their supply of gas on the ground of irreparable injury, as there was 
 no evidence that they had no other means of heating and lighting 
 their houses. In Bienville W. S. Co. v. Mobile, 112 Ala. 260, 57 
 Am. St. Eep. 28, 20 South. 742, 33 L. E. A. 59, the injunction was 
 granted against shutting off the water supply of a city on the ground 
 of a breach of public duty, in the nature of a public nuisance. 
 
 A telcplione company may be enjoined from removing its instru- 
 ment from plaintiff's residence: Anderson v. Mt. Sterling Telephone 
 Co. (Ky.), 86 a W. 1119. 
 
 Of course one who refuses to pay reasonable rates demanded is 
 not entitled to an injunction: Mulrooney v. Obear, 171 Mo. 613 71 
 8. W. 1019. It is held that a purchaser of water rights from a water 
 company may enjoin the company from destroying his headgatea 
 and ditches: Hargrave v. Hall, 3 Ariz. 252, 73 Pac. 400.
 
 533 INJUNCTION; BREACH OF CONTRACTS. § 298 
 
 to individuals in excess of the maximum fixed, in viola- 
 tion of contract with the city.^^^ 
 
 Further illustrations of the use of injunction to re- 
 strain the breach of contracts, although such breach 
 was not forbidden by an express negative, are found in 
 the following cases; Contract by a railroad to maintain 
 and keep open a passageway for stock under its road;^" 
 lease of a railroad enforced against the lessee by an in- 
 junction against abandoning the operation of the 
 road;^^^ many other contracts relating to the operation 
 of railroads ;^^^ contract by a street railroad with a 
 city to change its tracks from the side to the center of 
 the street.^ ^* A publisher agreed with an author to pub- 
 lish his book and pay him a royalty; pending suit for 
 accounting against the publisher, who was insolvent 
 and unable to pay, the defendant was restrained from 
 publishing the book, notwithstanding that the author's 
 interest therein was not protected by copyright.^ ^^ 
 Defendant, a novelist, agreed to permit plaintiff, a 
 playwright, to dramatize a novel written by the former; 
 
 no Muncie Nat. Gas Co. ▼. City of Muncie, 160 Ind. 97, 66 N. E. 
 436. 
 
 111 Eock Island & P. R. Co, v. Dimick, 144 111. 628, 32 N. E. 
 291, 19 L. R. A. 105; Moore v. Chicago, R. I. & P. Ry. Co., 7 Kan. 
 App. 242, 53 Pac. 775. 
 
 112 Southern R. Co. v. Franklin & P. R. Co., 96 Va. 693, 32 S. E. 
 485, 44 L. R. A. 297. Suit at law would not afford an adequate rem- 
 edy, since the damages to the lessor from loss of traffic, decay of 
 buildings and structures, and possible forfeiture of its franchises 
 could not be estimated, or if such injuries were reparable in damages, 
 it would require a multiplicity of actions for the daily breach of tha 
 agreement. 
 
 113 See post, Vol. n, chapters on Specific Performance: Brooklyn 
 El. R. Co. V. Brooklyn, B. & W. E. R. Co., 23 App. Div. 29, 48 N. Y. 
 Supp. 665. 
 
 114 City of Gloversville v. Johnstown, G, & H. Horse E. Co., 66 
 Hun, 627, 21 N. Y. Supp. 146. 
 
 115 Saltus V. Belford Co., 133 N. Y. 499, 31 N. E. 618, affirming 64 
 Hun, 632, 18 N. Y. Supp. 619.
 
 § 299 EQUITABLE REMEDIES. 534 
 
 the novelist having subsequently authorized a drama- 
 tization of the novel by the other defendants, its per- 
 formance on the stage was enjoined, although the court 
 could not have enforced a performance of the contract 
 as an entirety by compelling the defendant to put plain- 
 tiff's dramatization on the stage.^^® An agreement 
 among the merchants of a town to close their stores 
 at a certain hour in the evening was repudiated by one 
 of the parties ; injunction was held to be the proper rem- 
 edy, to avoid a multiplicity of actions, by numerous 
 plaintiffs, for recurring breaches of the contraet^^^ 
 Where the proprietor of a water-power leases the use 
 of a specific quantity of water, and the lessee persist- 
 ently uses water in excess of the amount covered by the 
 lease, and threatens to continue in so doing, and where 
 tlie extent of such use is contingent, and its value diffi- 
 cult of ascertainment and of doubtful estimation, such 
 proprietor may enjoin the lessee from using such ex- 
 cess, without alleging or proving that such excess is 
 essential to the operation of other mills, or is diverted 
 therefrom.^ ^^ 
 
 § 299. Adequate Remedy at Law.— In all these cases, if 
 the breach of the contract, committed or threatened, 
 can be adequately redressed by the recovery of dam- 
 
 116 House V. Clemens, 24 Abb, N. C. 381, 9 N. Y. Supp. 484, 
 
 117 Stovall V. McCutchen, 107 Ky, 577, 92 Am. St. Eep. 373, 54 
 a W. 969, 47 L, E. A, 287. 
 
 118 Lawson v. Menasha Wooden-Ware Co., 59 Wis. 393 48 Am. 
 Eep. 528, 18 N, W. 440. The decision rests on the ground not only 
 of the impossibility of proving the amount of the excess used, but 
 also of avoiding a multiplicity of suits for recurring breaches of the 
 contract. Compare Saltsburg Gas Co. v. Borough of Saltsburg, 138 
 Pa. St. 250, 20 Atl. 844, 10 L. R. A. 193, where it seems to be hold 
 that a gas company cannot enjoin a town from using more gas than it 
 is entitled to under its contract, since the company may sue at law for 
 the e:xces3.
 
 536 INJUNCTION; BREACH OF CONTRACTS. § 300 
 
 ages in a single suit at law, injunction will not issue 
 to restrain the breach,^ ^^ Thus an injunction has been 
 refused against retaining money belonging to the plain- 
 tiff under the contract ;^^'^ against a turnpike company 
 collecting toll from one who claimed exemption from 
 payment by virtue of an agreement with the com- 
 pany ;^^^ against a board of education substituting an- 
 other text-book for use in schools in violation of con- 
 tract with publishers. ^^2 Likewise, an injunction to 
 restrain breach of an agreement not to use any other 
 trading stamp than plaintiffV^^ has been denied. It 
 has been held that a toll-road company has an adequate 
 remedy at law for unnecessary encroachments by an 
 electric railway company which has a contract author- 
 izing necessary encroachments.^^* 
 
 § 300. Effect of Provisions for Penalties and Liquidated Dam- 
 ages. — It frequently happens in cases of negative cove- 
 nants that stipulations for penalties or liquidated dam- 
 ages are inserted. The question which arises in these 
 cases is whether such provisions furnish an adequate 
 remedy at law so as to oust equity of its jurisdiction to 
 
 119 See cases passim in preceding sections; also Gaslight etc. 
 Co. of New Albany v. City of New Albany, 139 Ind, 660, 39 N. E. 
 462; Glassbrenner v. Groulik, 110 Wis. 402, 85 N. W. 962; Wa- 
 baska Electric Co. v. City of Wymore, 60 Neb. 199, 82 N. W. 626; 
 World's Columbian Exposition v. United States, 56 Fed. 654, 6 C. C. 
 A. 38, 18 U. S. App. 42; Gallagher v. Fayette Co. E. R., 88 Pa. St. 102. 
 
 120 Chicago & A. R. Co. v. New York, L. E. & W. R. Co., 24 Fed. 
 516. 
 
 121 Kellett V. Clayton, 99 Cal. 210, 33 Pac. 885. The court were 
 of the opinion that a multiplicity of actions by plaintiff to recover 
 the tolls paid was not probable, but that one such action would end 
 the dispute. 
 
 122 Attorney-General v. Board of Education, 133 Mich. 681, 95 N. 
 W. 746. 
 
 12C Sperry & Hutchinson Co. v. Vine (N. J. Eq.), 57 Atil. 1036. 
 124 Detroit & B. Plank Road Co. v. Oakland Ry. Co., 131 Mich. 
 663, 92 N. W. 34fl.
 
 ( 300 EQUITABLE REMEDIES. 536 
 
 grant an injunction. It seems to be generally con- 
 ceded that if the stipulation is to be construed as a 
 penalty, equity does not lose its jurisdiction.^ ^5 ^ pg^. 
 alty is merely a security for the performance of the con- 
 tract, and is not the price for doing what a man has ex- 
 pressly agreed not to do. "In determining the ques- 
 tion whether in a given case the sum named is a pen- 
 alty or liquidated damages, courts give but little 
 weight to the mere form of words, but gather the in- 
 tent from the general scope and purport of the con- 
 tract,"^^' Where the stipulation is construed as one 
 for liquidated damages, the courts are not agreed as 
 to the remedy. The better rule seems to be that it is 
 a question of intention. "It is, of course, competent 
 for parties to a covenant to agree that a fixed sum shall 
 be paid in case of a breach by the party in default, and 
 that this should be the exclusive remedy. The inten- 
 tion in that case would be manifest that the payment 
 of the penalty should be the price of non-performance. 
 But the taking of a bond in connection with a covenant 
 does not exclude the jurisdiction of equity in a case 
 otherwise cognizable therein, and the fact that the 
 damages in the bond are liquidated does not change the 
 rule. It is a question of intention, to be deduced from 
 the whole instrument and the circumstances; and if it 
 appear that the performance of the covenant was in- 
 tended, and not merely the payment of damages in case 
 of a breach, the covenant will be enforced."^^''^ All 
 
 125 Dills V. Doebler, 62 Conn. 366, 36 Am. St. Rep. 345, 26 Atl. 
 398, 20 L. R. A. 432; Wilkinson v. Colley, 164 Pa. St. 35, 30 Atl. 286, 
 26 L. R. A. 114; Ropes v. Upton, 125 Mass. 258; Robinson v. Heuer, 
 67 L. J. Ch. 644, [1898] 2 Ch. 451, 79 L. T., N. S., 281, 47 Week. Kep. 
 34. See, also, 1 Pom. Eq. Jur., § 446. 
 
 126 Dills V. Doebler, 62 Conn. 366, 36 Am. St. Rep. 345, 26 Atl. 398, 
 20 L. R. A. 432. 
 
 127 Diamond Match Co. v. Roeber, 106 N. Y. 473, 60 Am. Rep. 469, 
 13 N. E. 419; Zimmerman v. Gerzog, 13 App. Div. 210, 43 N. Y. Supp.
 
 537 INJUNCTION; BREACH OF CONTRACTS. S 300 
 
 that is settled by the insertion of an agreement for liqui- 
 dated damages is that if au action is brought for dam- 
 ages, the recovery shall be for the amount named, 
 neither more nor less.^^* On the other hand, there is 
 a line of cases holding that where liquidated damages 
 are stipulated for, injunctive relief must be denied, the 
 argument being that the ground of the jurisdiction is 
 the inadequacy of the legal remedy. When parties 
 have stipulated as to the amount of damage, the diffi- 
 culty is removed. Accordingly, the legal remedy is 
 held to be exclusive.^** 
 
 339; A. L. & J. J. Reynolds Co. v. Dreyer, 12 Misc. Rep. 368, 33 N. 
 Y. Supp. 649; Ropes v. Upton, 125 Mass. 258; McCurry v, Gibson, 
 108 Ala. 451, 54 Am. St. Rep. 177, 18 South. 806. See, also, HowarJ 
 V. Woodward, 10 Jur., N. S., 1123. Where it appears that perform- 
 ance and payment are made alternative, relief will be refused: 
 Sainter v. Ferguson, 1 Macn. & G. 286. 
 
 128 McCurry v. Gibson, 108 Ala. 451, 54 Am. St. Rep. 177, 18 South. 
 606. 
 
 129 Bills V. Doebler, 62 Conn. 366, 36 Am, St. Rep. 345, 26 Atl. 398, 
 20 L. R. A. 432; O'Neal v. Hines, 145 Ind. 32, 43 N. E. 946j Martin 
 V. Murphy, 129 Ind. 464, 28 N. E. 1118; Hahn v. Concordia Soc, 42 
 Md. 460. Compare 1 Pom. Eq. Jnr., 3d ed., § 447, and note (a).
 
 i§ 301,302 EQUITABLE EEMEDIES. 538 
 
 CHAPTER XIV. 
 
 §§ 301-304. 
 
 § 302. 
 
 § 303. 
 
 § 304. 
 
 § 305. 
 
 § 306. 
 
 § 307. 
 
 S 308. 
 
 INJUNCTIONS AGAINST CORPORATIONS AND THEIE 
 OFFICERS. 
 
 ANALYSIS. 
 
 Ultra vires acts — Questions stated. 
 
 Suits by the attorney-generaL 
 
 Suits by stockholders. 
 
 Suits by third parties. 
 
 Suits by stockholders against directors for wrongful 
 
 dealing with corporate property. 
 Other suits by stockholders. 
 
 No injunction to determine title to corporate office. 
 Existence of a corporation cannot be challenged by in- 
 junction — Injunction in connection with receivership. 
 
 § 301. Ultra Vires Acts — Questions Stated. — The princi- 
 ples governing the jurisdiction of equity to restrain 
 ultra vires acts of private corporations vary with the 
 character of the parties plaintiff. It is obvious that ac- 
 tions for such injunctions may be brought by three dif- 
 ferent classes of plaintiffs, viz.: (1) the attorney-gen- 
 eral on behalf of the state; (2) a stockholder, and (3) 
 a third party, having no connection with the corpora- 
 tion. In each of these cases the right to an injunction 
 rests upon a theory of its own ; therefore, each must be 
 considered separately. 
 
 § 302. Suits by the Attorney-General. — It is now well 
 settled that where a corporate excess of power or mis- 
 use of franchise "tends to the public injury or to de- 
 feat public policy," it may be restrained at the suit of 
 the attorney-general.^ This jurisdiction is somewhat 
 
 1 Stockton V. Central E. Co., 50 N. J. Eq. 52, 24 Atl. 964, 17 L. E. 
 A. 97; State v. American etc. Assn., 64 Minn. 349, 67 N. W. Ij
 
 639 INJUNCTION; CORPOEATIONS. § SOil 
 
 similar to that of equity to restrain a public nuisance.^ 
 The question which arises in many of the cases, there- 
 fore, is simply whether the acts tend to the public in- 
 jury. Thus, where a railroad company violates a penal 
 statute by charging excessive fares, the injury to the 
 public is such as will warrant an injunction.^ Like- 
 wise, an injunction is proper when the abuse tends to 
 foster a monopoly, as where, in violation of the consti- 
 tution or statutes of a state, one railroad is about to 
 purchase a parallel line,^ or, under circumstances tend- 
 ing to stifle competition, is about to lease its lines to,^ 
 or buy shares in,^ another railroad. The reason is well 
 laid down in a leading English case, as follows '^ "Now, 
 why has the rule been established, that railway com- 
 panies must not carry on any business other than that 
 for which they were constituted? It is because these 
 companies, being armed with the power of raising large 
 sums of money, if they were allowed to apply their 
 funds to purposes other than those for which they were 
 constituted, might acquire such a preponderating in- 
 fluence and command over some particular branch of 
 trade or commerce, as would enable them to drive the 
 ordinary private traders out of the field, and create 
 
 Louisville & N. R. Co. v. Com., 97 Ky. 675, 31 S. W. 476; Attorney- 
 General V. Chicago etc. E. E. Companies, 35 Wis. 530; Attorney-Gen- 
 eral V. Great North. Ey. Co., 1 Drew & S. 154; Trust Co. of Ga. ▼. 
 State, 109 Ga. 736, 35 S. E. 323, 48 L. E. A. 520. 
 
 2 Attorney-General v. Chicago etc. E. E. Companies, 35 "Wis. 530. 
 This case contains a good statement of the principles and an ex- 
 haustive citation of authority. 
 
 3 Attorney-General v. Chicago etc. E. E. Companies, 35 Wis. 530. 
 
 4 Louisville & N. E. Co. v. Commonwealth, 97 Ky. 675, 31 S. W. 
 476. 
 
 5 Stockton V. Central E. Co., 50 N. J. Eq. 52, 24 Atl. 964, 17 L. E. 
 A. 97. 
 
 « Trust Co. of Ga. v. State, 109 Ga. 736, 35 S. E. 323, 48 L. E. A. 
 P20. 
 
 ^ Attorney-General v. Great North. "By., 1 Drew & S. 154.
 
 S 302 EQUITABLE KEMEDIES. WO 
 
 in their own favor a practical monopoly, whereby the 
 interests of the public would be most seriously injured." 
 There is a tendency in some jurisdictions to extend 
 the remedy, and to allow the attorney-general an in- 
 junction against every abuse of corporate power by a 
 quasi public corporation.® The argument is that every 
 excess of corporate power is a violation of the charter 
 contract with the government, and is therefore an in- 
 vasion of public rights which equity should protect. 
 Thus, it has been held that a railroad company will be 
 enjoined at the suit of the attorney-general from unlaw- 
 fully laying its tracks in a highway, even though no 
 public injury results.® This expansion of the rule, 
 however, has not been applied to purely private busi- 
 ness corporations,^** the theory being that as equity 
 protects only substantial rights, the jurisdiction must 
 be confined to enjoining acts which tend to substantial 
 public injury. 
 
 The adequacy of the legal remedy by quo warranto is 
 no defense to an action by the attorney-general. In 
 many cases he is allowed a discretion to choose either 
 remedy.^ ^ It is often better for the public interest to 
 restrain such violations than to enforce a forfeiture, 
 and this is especially true in regard to quasi public cor- 
 porations.^^ Moreover, as stated in a quo warranto 
 
 8 Attorney-General v. London & N. W. K. Co., [1900] 1 Q. B. 78; 
 Attorney-General v. Birmingham & O. T. Co., 3 Macn. & G. 453, 461. 
 
 9 Attorney-General v. Greenville & H. Ey. Co., 59 N. J. Eq. 372, 
 46 Atl. 638; Grey v. Greenville & H. Ry. Co., 60 N. J. Eq. 153, 46 Atl. 
 636. 
 
 10 Attorney-General v. Tudor Ice Co., 104 Mass. 239, 6 Am. Eep. 
 227; Attorney-General v. Bank of Niagara, Hopk. Ch. 354; Attorney- 
 General V. Utica Ins. Co., 2 Johns. Ch. 371. 
 
 11 Stockton V. Central E. Co., 50 N. J. Eq. 52, 24 Atl. 964, 974, 17 
 L. E. A. 97. 
 
 12 Louisville & N. E. Co. v. Commonwealth, 97 Ky. 675, 31 8. W. 
 476.
 
 541 INJUNCTION; CORPORATIONS. § 303 
 
 case, "acts ultra vires may justify interference on the 
 part of the state by injunction to prohibit a continu- 
 ance of the excess of powers which would not be a suffi- 
 cient ground for a forfeiture in proceedings in quo war- 
 ranto." ^^ 
 
 § 303. Suits by Stockholders. — As a general rule, it 
 may be stated that a stockholder may obtain an injunc- 
 tion against ultra vires acts. This is based on the prin- 
 ciple that there is a contract relation between the stock- 
 holders and the corporation w^hich is a subject of equi- 
 table protection. "The directors are their trustees to 
 employ the joint capital in the management, .... to 
 the end that from the investment the stockholders have 
 chosen they may reap the contemplated profits. And 
 this is the agreement of the stockholders among them- 
 selves. They each contract with the other that their 
 money shall be so employed. What the majority de- 
 termine within the scope of this mutual contract, they 
 agree to abide by, but there their mutual contract ends, 
 and no majority, however large, has a right to divert 
 one cent of the joint capital to any purpose not con- 
 sistent with, and growing out of this original funda- 
 mental joint intention."^* Thus, a minority stock- 
 holder is entitled to an injunction to restrain a corpo- 
 ration from selling,, leasing, or transferring all of its 
 property,^ ^ or from consolidating, ultra vires ^ with an- 
 
 13 State V. Minnesota Thresher Mfg. Co., 40 Minn, 213, 41 N, W. 
 1020, 3 L. E. A. 510. 
 
 14 Kean v. Johnson, 9 N. J. Eq. 401, 409. See, also, on the sub- 
 ject of this section, 3 Pom. Eq. Jur., § 1093. 
 
 15 Kean v. Johnson, 9 N. J. Eq. 401; Abbott v. American Hard 
 [lubber Co., 33 Barb. 578; Small v. Minneapolis Electro-Matrix Co., 
 45 Minn. 264, 47 N. W. 797; Black v. Delaware & R. C. Co., 24 N. J. 
 Eq. 455; Forrester v. Boston & M. Cons. C. & S. M. Co., 21 Mont. 
 C.44, 5o Pac. 229, 353; New Albany Waterworks v. Louisville Bank- 
 ing Co., 122 Fed. 776.
 
 i 303 EQUITABLE REMEDIES. 542 
 
 other corporation/® or from issuing paper to circulate 
 as money/ '^ or from guaranteeing bonds of another cor- 
 poration.^* Likewise, such a stockholder may obtain 
 an injunction to restrain the appropriation of corporate 
 funds for any object not warranted by the charter/^ or 
 to prevent the fraudulent payment of private debts 
 with corporate funds.^'* Upon the same principle, he 
 is entitled to an injunction to restrain the ultra vires 
 purchase of land/^ to restrain such a change in the 
 certificate of incorporation as will reduce the dividend 
 on preferred shares j^^ and to restrain an increase of 
 capital stock to be given for property worth less than 
 the face value of the stock.^^ Likewise, a stockholder 
 may enjoin a bank from discounting notes at usurious 
 rates, in violation of its charter.^^ The fact that such 
 contracts may be beneficial both to the corporation and 
 to the stockholder is no ground for refusing the relief, 
 for the stockholder has a contract right which he is en- 
 
 16 Botts V. Simpsonville & B. C. Turnpike Road Co., 88 Ky. 54, 
 10 S. W. 134, 2 L. E. A. 594; Langan v. Francklyn, 29 Abb. N. C. 
 102, 20 N. Y. Supp. 404. 
 
 17 Bliss V. Anderson, 31 Ala. 612, 70 Am, Dec. 511. 
 
 18 Zabriskie v. Cleveland, C. & C. R. Co., 23 How. (64 U. S.) 381, 
 16 L. ed. 488. 
 
 19 Platteville v. Galena etc. R. R., 43 Wis. 493; Stevens v. Erie 
 R. Co., 29 Vt. 545; Cohen v. Wilkinson, 1 Macn. & G. 481; Hodgson 
 V. Earl of Powis, 1 De Gex, M. & G. 6; Kemaghan v. Williams, L. R. 
 6 Eq. 228; Pickering v. Stephenson, L. R. l4 Eq. 322; Alexander v. 
 Atlanta & W. P. R. Co., 113 Ga. 193, 38 S. E. 772, 54 L. R. A. 305; 
 Bagshaw v. Eastern Union Ry., 7 Hare, 114, 130, 131; Bernan v. Rnf- 
 ford, 6 Eng. L. & Eq. 106, 1 Sim. (N. S.) 550; Simpson v. Denison, 
 10 Hare, 51; Colman v. Eastern Counties Ry., 10 Beav. 1; Central 
 Ry. Co. V. Collins, 40 Ga. 582; Stewart v. Erie & W. T. Co., 17 Minn. 
 372; Salomons v. Laing, 12 Beav. 377. 
 
 20 Sears v. Hotchkiss, 25 Conn. 171, 65 Am. Dec. 557, 
 
 21 Hough V. Cook County Land Co., 73 111. 23, 24 Am. Rep. 230. 
 
 22 Pronick v. Spirits Dist. Co., 58 N. J. Eq. 97, 42 Atl. 586. 
 
 23 Donald v. American S. & R. Co., 62 N. J. Eq. 729, 48 Atl. 771, 
 1116. 
 
 24 Manderson v. Commercial Bank, 28 Pa. St. 379.
 
 643 INJUNCTION; CORPORATIONS. § 30S 
 
 titled to have protected.^* But until this contract is 
 fully made there is no ground for action. Therefore, 
 a subscriber for stock who has not fulfilled the condi- 
 tions of his subscription, has no standing in court.^* 
 It has sometimes been held that relief will be granted 
 only to a bona fide stockholder, and accordingly the in- 
 junction has been refused when the plaintiff has been 
 in reality acting in the interest of another corporation.^'^ 
 It is said that a stockholder cannot restrain payment 
 for benefits received under an ultra vires contract, 
 where the other party had no notice of the excess of 
 power.2^ 
 
 While a stockholder may thus obtain final relief, he 
 is often denied a preliminary injunction. Such an in- 
 junction is granted ordinarily only where a clear case 
 can be made out in the complaint. Questions of ultra 
 vires depend largely upon the construction and consti- 
 tutionality of laws and charters, and consequently are 
 frequently of too difficult a nature to be determined 
 upon a preliminary application.^* And in order to ob- 
 tain any relief whatever, he must act promptly.'*' 
 "Shareholders cannot lie by, sanctioning, or by their 
 silence at least acquiescing in, an arrangement which 
 is ultra vires of the company to which they belong, 
 
 25 Byrne v. Schuyler Elect. Mfg. Co., 65 Conn. 336, 31 Atl. 833, 28 
 L. R. A. 304. 
 
 26 Busey v. Hooper, 35 Md. 15, 6 Am. Rep, 350. 
 
 27 Jenkins v. Auburn City Ry. Co., 27 A pp. Div. 553, 50 N. Y. 
 Supp. 852; Filder v. London etc. R. R. Co., 1 Hem. & M. 489. Cf. 
 post, § 305, at note 59. 
 
 28 Rankin v. Southwestern Brewery & Ice Co. (N. M.), 73 Pac. 
 613. 
 
 29 Stevens v, Missouri, K. & T. Ry. Co., 106 Fed. 771, 45 C. C. A. 
 €11; Smith v. Reading City Pass. Ry. Co., 156 Pa. St. 5, 26 Atl. 779. 
 
 30 Black V. Delaware & R. C. Co., 22 N. J. Eq. 415; Great Western 
 Ry. Co. V. Oxford, W. & W. Ry. Co., 3 De Gex, M. & G. 341; Tanner 
 V. Lindell Ry. Co., 180 Mo. 1, 103 Am. St. Rep. 534, 79 S. W. 155.
 
 { 304 EQUITABLE EEMEDrES. 644 
 
 watching the result — if it be favorable and profitable 
 to themselves, to abide by it and insist on its validity; 
 but if it prove unfavorable and disastrous, then to in- 
 stitute proceedings to set it aside. "^* Thus, where a 
 corporation issued preferred stock ultra vires, a stock- 
 holder was refused an injunction to restrain payment 
 of privileged dividends, after the stock had reached the 
 hands of a bona fide purchaser.^^ 
 
 § 304. Suits by Third Parties. — A private individual 
 who is not a stockholder is not entitled to an injunc- 
 tion to restrain an act merely ultra vires. He has no 
 relation of a contractual nature which gives him any 
 rights, nor is he entitled to sue on behalf of the state.^^ 
 Where, however, the ultra vires act amounts to a private 
 nuisance, or is a public nuisance which specially in- 
 jures the individual, or where it interferes with some 
 vested right and is otherwise a subject of equitable ju- 
 risdiction, an injunction will be granted. In accord- 
 ance with these principles relief has been denied where 
 a railroad track, although a public nuisance, would not 
 specially injure the plaintiff ;^^ where a railroad moved 
 its station and abandoned part of its track f^ and where 
 a road corporation was using material not authorized 
 by its charter.^* Likewise, a simple contract creditor 
 
 81 Gregory v. Patchett, 33 Beav. 595, 602; Rabe v. Dunlap, 51 N. 
 J. Eq. 40, 25 Atl. 959. 
 
 32 Kent V. Quicksilver Min, Co., 78 N. Y. 159. 
 
 33 Henry v. Ann Arbor Ry. Co., 116 Mich. 314, 75 N. W. 886. 
 See Packard v. Thiel College (Pa.), 56 Atl. 869, where the question 
 was left undecided, whether subscribers to a fund to build a college 
 at a certain place were sufficiently interested to enjoin the ultra mres 
 act of its removal to another location. 
 
 34 Philadelphia W. & B. R. Co. v. Wilmington City Ry, Co. (Del.), 
 38 Atl. 1067. 
 
 35 Moore v. Brooklyn City R. Co., 108 N. Y. 103, 15 N. E. 191. 
 
 86 Erin Tp, v. Detroit & E. Plank Road Co., 115 Mich. 465, 73 N. 
 W. 556.
 
 545 INJUNCTION; CORPOEATIONS. S 305 
 
 has been denied an injunction to restrain the corpora- 
 tion from dealing with assets iiltr^a vires, upon an alle- 
 gation that thereby the funds available for paying debts 
 would be diminished.^''' On the other hand, the injunc- 
 tion has been granted when a street railroad was laying 
 its tracks ultra vires on the street, to plaintiff's in- 
 jury ;^^ where a street railroad was changing its tracks 
 in violation of the rights of a borough, which was plain- 
 tiff;^^ where a. gas company was laying its pipes in a 
 country highway which passed plaintiff"'s premises;^** 
 where a railroad company was about to build over 
 plaintiff's land without authority ;^^ and where a turn- 
 pike company was attempting to charge tolls to persons 
 exempted by its charter, on the ground of a vested right 
 in the plaintiffs.^^ The injunction, however, will not 
 be granted where the injury is slight,^^ or where it will 
 "esult in public inconvenience.*^ 
 
 § 305. Suits by Stockholders Against Directors for "Wrong- 
 ful Dealing with Corporate Property. — It is not within the 
 scope of this chapter to attempt any general discussion 
 of the great variety of cases in which equitable relief 
 
 37 Mitts V. Northern Ey., L. E. 5 Ch. 621. 
 
 38 Bonaparte v. Baltimore etc. Ey. Co., 75 Md. 340, 23 Atl. 784. 
 
 39 Borough of Shamokin v. Shamokin & M. C. Elect. Ey. Co., 196 
 Pa. St. 166, 46 Atl. 382. 
 
 40 Sterling's Appeal, 111 Pa. St. 35, 56 Am. Eep. 246, 2 Atl. 
 Iffo; and the same rule may apply when a gas company, in excess 
 of charter powers, attempts to lay gaspipes in the street of a city, 
 whereby plaintiff will suffer special injury; Seattle Gas & Electric 
 Co. V. Citizens' Light & Power Co., 123 Fed. 588. 
 
 41 Western Md. E. E. Co. v. Owings, 15 Md. 204, 74 Am. Dec. 
 563. 
 
 42 Louisville & T. Turnpike Co, v. Boss, 19 Ky. Law Eep. 1954, 
 44 S. W. 981. 
 
 43 Becker v. Lebanon & M. Ey. Co., 188 Pa. St. 484, 41 Atl. 612, 
 43 Wkly. Not. Cas. 229. 
 
 4 4 Ware v. Eegents' Canal Co., 3 De Gex & J. 212. 
 Equitable Eemedies, Vol. I — 35
 
 5 305 EQUITABLE KEMEDIES. 54(i 
 
 is sought by stockholders against wrongful dealing with 
 corporate property. Such a discussion should be 
 looked for in treatises on substantive equity,"*^ or on 
 the law of corporations. Suits of this character, so 
 far as the form of the remedy is concerned, are usually 
 suits for an accounting. Where, however, the nature 
 of the facts calls for preventive relief, it is usually 
 granted with great fi'ecdom. 
 
 In this class of suits, since the cause of action exists 
 primarily in behalf of the corporation, the stockholder 
 is not permitted to sue unless he shows, either that the 
 corporation actually refuses to bring the suit, or that 
 a refusal of the managing body, if it had been requested 
 to bring the suit, might be inferred with reasonable cer- 
 tainty.^^ Further, the right of the stockholder to sue 
 in cases where the corporation is the proper party to 
 bring the suit is limited to cases where the acts of the 
 directors or stockholders complained of are either fraud- 
 ulent, illegal or in breach of trust; in other cases than 
 these a court of equity has no jurisdiction to interfere 
 in the internal management of the affairs of corpora- 
 tions.^^ Subject to these fundamental rules, a stock- 
 
 4B See 3 Pom. Eq. Jur., §§ 1094, 1095. 
 
 46 Id.; in addition to the cases there cited, see the following cases, 
 in which an injunction was sought: Putnam v. Euch, 54 Fed. 216; 
 Ball V. Kutland E. Co., 93 Fed. 513 (sufficient demand on the cor- 
 poration); Memphis & C. E. Co. v. Woods, 88 Ala. 630, 16 Am. St. 
 Eep. 81, 7 South. 108, 7 L. E. A. 605; Mack v. De Bardeleben Coal 
 
 6 1. Co., 90 Ala. 396, 8 South. loO, 9 L. E. A. 650 (demand excused) ; 
 Harding v. American Glucose Co., 182 111. 551, 74 Am. St. Eep. 189, 
 55 N. E. 577; Lewisohn v. Anaconda Copper Min. Co., 26 Misc. Eep. 
 613, 56 N. Y. Supp. 807; Fitchett v. Murphy, 61 N. Y. Supp. 182, 46 
 App. Div. 181. 
 
 47 Hawes v. Oakland, 104 U. S. 450, 26 L. ed. 827; MacDougall 
 V. Gardiner, L. E. 1 Ch. D. 14; Shaw v. Davis, 78 Md. 314, 28 
 Atl. 619, 23 L. E. A. 294; Leslie v. Lorillard, 110 N. Y. 519, 18 N. E. 
 363, 1 L. E. A. 456; Burden v. Burden, 159 N. Y. 287, 54 N. E. 17; 
 Lewisohn v. Anaconda Copper Min. Co., 26 Misc. Eep. 613, 56 N. Y.
 
 547 INJUNCTION; CORPOEATIONS. § 305 
 
 holder's right to enjoin infra vires acts on the part of 
 the corporate authorities has been recognized in an al- 
 most unlimited variety of instances, of which the fol- 
 lowing may serve as illustrations: he may enjoin mis- 
 appropriation of corporate funds ;^^ fraudulent prosecu- 
 tion of suits against the company by the directors;*' 
 but not, it seems, the auditing of a fraudulent account, 
 since the allowance of the account would not conclude 
 anyone, and no irreparable injury would result f° he 
 may enjoin a wrongful lease of the corporate property, 
 amounting to a breach of trust ;^^ the payment of illegal 
 dividends, but not of dividends already declared, unless 
 all the shareholders are before the court ;^^ the payment 
 of an illegal tax;^^ the fixing of a particular date for 
 holding the general meeting of the company for the 
 purpose of preventing shareholders from exercising 
 their voting powers;^* the voting of the majority of 
 
 Supp. 807; Peabody v. Westerly Waterworks, 20 E. I. 176, 37 Atl. 
 807; Phillips v. Providence Steam Engine Co., 21 E. I. 302, 43 Atl. 
 598, 45 L. E. A. 560. 
 
 48 People's Sav. Bank v. Colorado Min. etc. Co., 8 Colo. App. 354. 
 46 Pac. 620. 
 
 49 Birmingham Min. etc. Co. v. Mutual Loan & Trust Co., 96 Ala. 
 364, 11 South. 368. 
 
 50 Eogers v. Lafayette Agricultural Works, 52 Ind. 296. The cor- 
 rectness of this decision may well be doubted. 
 
 51 Pond V. Vermont etc. E. E. Co., 12 Blatchf. 280, Fed. Cas. No. 
 11,265. 
 
 52 Since each shareholder has a right of action to recover a divi- 
 dend that has been declared: Carlisle v. South Eastern Ey,, 1 Macn. 
 & G. 689. 
 
 53 Dodge V. Woolsey, 18 How. (59 U. S.) 331, 13 L. ed. 401; 
 Mechanics' & Traders' Bank v. Debolt, 18 How. (59 U. S.) 380, 15 
 L. ed. 458; Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 15 
 Sup. Ct. 673, 39 L. ed. 759 (the question of the adequacy of the legal 
 remedy was waived); but see Corbus v. Treadwell Gold Min. Co. 99 
 Fed. 334. 
 
 54 Cannon v. Trask, L. E. 20 Eq. 669. But that the directors will 
 not be restrained from holding an irregular meeting, when all the
 
 I 305 EQUITABLE EEMEDIES. 548 
 
 the stock in the corporation, held by a rival corporation 
 whose interests are in conflict with those of the for- 
 mer ;^'^ the voting of shares of stock fraudulently trans- 
 ferred or acquired, under various circumstances;^* 
 winding up the affairs of the corporation and disposing 
 of its assets in a manner inconsistent with good faith 
 toward the minority stockholders,^'^ or at variance with 
 the statutes on the subject.^^ 
 
 It has been held that a bona fide minority stockholder 
 in a substantial amount is not precluded from enjoin- 
 ing the majority stockholders from voting to make a 
 certain disposition of the corporate property merely 
 because his principal motive is to protect another cor- 
 poration and his interest therein.^^ 
 
 In a very important recent case it was held that a dis- 
 senting stockholder may sue in behalf of himself and 
 other stockholders to prevent the corporation and its 
 officers from carrying out an agreement to convey its 
 property to another corporation whose purpose was to 
 
 acts of Buch meeting will be void for want of a quorum, see Sulli- 
 van V. Venner, 63 Hun, 634, 18 N. Y. Supp. 398. 
 
 55 Memphis & C. E, Co. v. Woods, 88 Ala. 630, 16 Am. St. Eep. 81, 
 7 South. 108, 7 L. E. A. 605, and cases cited; George v. Central E. 
 E. & B. Co., 101 Ala. 607, 14 South. 752. 
 
 56 Campbell v. Poultney, 6 Gill & J. (Md.) 94, 26 Am. Dec. 559; 
 Webb v. Eidgely, 38 Md. 364; Hilles v. Parrish, 14 N. J. Eq. 380. 
 But one who was induced to subscribe for stock of a corporation up- 
 on the assurance of a stockholder that a particular business would 
 not be engaged in, cannot enjoin such stockholder from voting to 
 take up such business: Converse v. Hood, 149 Mass. 471, 21 N. E. 
 878, 4 L. E. A. 521. 
 
 57 Hayden v. Official Hotel etc. Co., 42 Fed. 875 (preliminary in- 
 junction refused); Treadwell v. United Verde Copper Co., 62 N. Y. 
 Supp. 708, 47 App. Div. 613 (preliminary injunction granted; a 
 history of outrageous fraud by a notorious public character). 
 
 58 Hunt V. American Grocery Co., 81 Fed. 532. 
 
 59 Lewisohn v. Anaconda Copper Min. Co., 26 Misc. Eep. 613, 56 
 N. Y. Supp. 807, 50 N. Y. Supp. 253, 23 Misc. Eep. 31. Com- 
 pare ante, § 303, at note 27.
 
 549 INJUNCTION; COKPORATIONS. S 306 
 
 create a monopoly prohibited by statute; the stockhold- 
 er's right to sue was maintained, not on the ground of 
 protecting the public interests, but because the creation 
 of the monopoly would expose the corporation to a for- 
 feiture of its charter rights, and the value of the com- 
 plainant's stock would thereby be destroyed.^^ 
 
 § 306. Other Suits by Stockholders. — Injunction is some- 
 times an appropriate remedy where the stockholder's 
 individual rights, as distinguished from those of the cor- 
 poration, are invaded. ^^ Thus, an injunction is al- 
 lowed in some cases to restrain the enforcement, by 
 sale of the complainant's stock, of the corporation's lien 
 thereon for a debt or liability incurred to the corpora- 
 tion by the stockholder ;^2 q^ to restrain the forfeiture 
 and sale by the company of non-assessable shares, when 
 there would probably be no way of accurately estimat- 
 ing their market value, and irreparable injury might 
 result f^ against assessing stock beyond its par value ;^* 
 but not to restrain an action to recover dues imposed 
 under a by-law, on the ground of its invalidity, when 
 that would constitute a perfect defense at law.^** 
 
 60 Harding v. American Glucose Co., 182 111. 5.51, 74 Am. St. Rep. 
 189, 55 N. E. 577; distinguishing Coquard v. Oil Co., 171 lU. 480, 49 
 N. E. 563, where the stockholder sought the forfeiture of the corpora- 
 tion's charter for injury to the public rights, a relief that could only 
 be enforced by the state; and also distinguishing Cope v. District Fair 
 Assn., 99 111. 489, 39 Am. Rep. 30, where no pecuniary injury to the 
 company or the complainants from the alleged illegal acts was shown. 
 
 61 For injunction in connection with suits to procure the transfer 
 of stock upon the company's books, see post, Vol. 11. 
 
 62 See Elliott v. Sibley, 101 Ala. 344, 13 South. 500, for requisite 
 jileading in such cases. 
 
 63 San Antonio St. Ry. Co. v. Adams (Tex. Civ. App.), 25 S. W. 
 639. 
 
 64 Redkey v. Citizens' Natural Gas etc. Co., 27 Ind. App. 1, 60 N. 
 E. 716. 
 
 65 Kinnan v. Sullivan County Club, 26 App. Div. 213, 50 N. Y. 
 Supp. 9-5.
 
 i 307 EQUITABLE KEMEDIES. 550 
 
 It is well settled that a suit will lie by a holder of 
 common stock to enjoin any unlawful or unauthorized 
 issue of preferred stock, to the prejudice of the stock- 
 holder's vested individual right in his proportionate 
 share of the corporate property and of the profits of the 
 business.^^ 
 
 In Ohio, injunction is held to be the proper remedy 
 to enforce the stockholder's right to inspect the books 
 and records of the corporation, although in other states 
 the remedy is usually by mandamus f and the latter, 
 and not injunction, is the proper remedy to compel the 
 corporation to post for the public benefit a copy of 
 their by-laws and financial statement.^^ 
 
 § 307. No Injunction to Determine Title to Corporate Of- 
 fice. — A court of equity will not primarily take juris- 
 diction to determine the legality of an election of direc- 
 tors, or to remove a director who is in possession of 
 the office. The court will inquire into the regularity of 
 the election, or the right of the person to the office, 
 only when the question arises incidentally and collater- 
 ally, in a suit of which the court has rightful jurisdic- 
 tion on other grounds,^^ such as fraud and breach of 
 
 66 Ernst V. Elmira Municipal Improvement Co., 24 Misc. Eep. 
 583, 54 N. Y. Supp. 116; Kent v. Quicksilver Min. Co., 78 N. Y. 159; 
 Campbell v. Zylouite Co., 122 N. Y. 455, 25 N. E. 853, 11 L. E. A. 
 596. 
 
 67 The Ohio rule depends on the wording of the statute definixiT 
 the writ of mandamus: Cincinnati Volksblatt Co. v. Hoffneister, 62 
 Ohio St. 189, 78 Am. St. Eep. 707, 56 N. E. 1033, 48 L. E. A. 732. 
 
 C8 Boardman v. Marshalltown Grocery Co., 105 Iowa, 445, 75 N. W. 
 343. 
 
 69 Perry v. Oil Mill Co., 93 Ala. 364, 9 South. 217; Elliott v. Sibley, 
 101 Ala. 344, 13 South. 500; Carmel Natural Gas etc. Co. v. Small, 
 150 Ind. 427, 47 N. E. 11, 50 N. E. 476; Sherman v. Clark, 4 Nev. 
 138, 97 Am, Dec, 516; Kean v. Union Water Co., 52 N. J. Eq. 813, 
 46 Am. St. Eep. 538, 31 Atl. 282, reversing 52 N, J, Eq. Ill, 27 Atl, 
 1015; Owen v, Whitaker, 20 N. J, Eq, 122; Mickles v. Eochester City
 
 551 INJUNCTION; COKPOEATIONS. S 308 
 
 trust. "^^^ The remedy to determine the right to cor- 
 porate office is by quo wm-ranto or special statutory 
 proceeding, and these are at least as adequate as the 
 remedy by injunction would be.'''^ When a court of 
 equity takes jurisdiction on other grounds, and the title 
 to corporate office is incidentally involved, its judgment 
 cannot go to the extent of ousting a de facto officerJ^ 
 The court may protect by injunction the possession of 
 de facto trustees against rival claimants of their office, 
 until their title can be properly adjudicated upon in 
 a legal proceeding, for the purpose of preventing an 
 unseemly struggle for possession between the rival 
 boards of trusteesJ^ 
 
 § 308. Existence of a Corporation cannot be Challenged 
 by Injunction — Injunction in Connection with Receivership. 
 A court of equity has no inherent jurisdiction, either 
 at the suit of the state or of a private person, to chal- 
 lenge or question the legal existence of a de facto cor- 
 poration, or to take away its chartered privileges, even 
 though the purpose for which it was organized may 
 have been unlawful; the remedy is by quo warrantoJ^ 
 
 Bank, 11 Paige (N. Y.), 118, 42 Am. Dec. 103; Ciancimino v. Man, 
 48 N. Y. St. Kep 697, 20 N. Y. Supp. 702; Model Building & L. Assn. 
 V. Patterson, 34 N. Y. Supp. 241, 12 Misc. Eep. 400; Mozley v. Als- 
 ton, 1 Phill. Ch. 790; Bedford Springs Co. v. McMeen, 161 Pa. St. 
 639, 29 Atl. 99. But see Haskell v. Read (Neb.), 93 N. W. 997. 
 
 70 Johnston v. Jones, 23 N. J. Eq. 216. 
 
 71 Carmel Natural Gas etc. Co. v. Small, 150 Ind. 427, 47 N. E. 
 11, 50 N. E. 476; Kean v. Union Water Co., 52 N. J. Eq. 813, 46 Am. 
 St. Eep. 538, 31 Atl. 282; Mickles v. Eochester City Bank, 11 Paige 
 (N. Y.), 118, 42 Am. Dec. 103; Ciancimino v. Man, 48 N. Y, St. Eep. 
 697, 20 N. Y. Supp. 702. 
 
 72 Ciancimino v. Man, 48 N. Y. St. Eep. 697, 20 N. Y. Supp. 702, 
 and cases cited. 
 
 73 Model Building & L. Assn. v. Patterson, 12 Misc. Eep. 400, 34 
 N. Y. Supp. 241. 
 
 74 Stockton V. American Tobacco Co., 55 N. J. Eq. 352, 36 Atl. 
 971; affirmed sub nom. Miller v. American Tobacco Co., 42 Atl. 1117;
 
 S 308 EQUITABLE EEMEDIES. 552 
 
 There is a clear distinction between an injunction di- 
 rected against acts outside the scope of the charter priv- 
 ileges of a corporation, and an injunction against infra 
 vires acts, resting upon the conduct of the incorpora- 
 tors preceding and leading up to the incorporation of 
 the company.'^^ An injunction cannot be allowed 
 which would strike at the authority of the corporation 
 to act at all as a corporation; and a decree restraining 
 the officers and agents of a corporation from exe- 
 cuting corporate acts is the same as a decree enjoin- 
 ing the corporation itself.^^ Nor does the rule laid 
 down in the last paragraph, that the legality of an 
 election of corporate officers may be questioned when 
 the matter arises incidentally in connection with some 
 recognized ground for equitable jurisdiction, apply by 
 analogy, so as to enable a court of equity to determine 
 collaterally a question of corporate existenceJ'^ 
 
 When a receiver is appointed under the statutes pro- 
 viding for the dissolution of corporations, an injunc- 
 tion depriving the officers of the corporation of control 
 over the corporate property is appropriate and custom- 
 ary; such injunction is frequently authorized by the 
 terms of the statute.'^ ^ 
 
 National Docks E. Co. v. Centrrl Ey. Co., 32 N. J. Eq. 755; Elizabeth- 
 town Gas-Light Co. v. Green, 46 N. J. Eq. 117, 18 Atl. 844; affirmed 
 49 N. J. Eq. 329, 24 Atl. 560; Harrison v. Hebbard, 101 Cal. 152; 
 Bayless v. Orne, 1 Freem, Ch. (Miss.) 173. 
 "5 Stockton V. American Tobacco Co., supra. 
 
 76 Stockton V. American Tobacco Co., supr'a. 
 
 77 Stockton V. American Tobacco Co., supra. 
 
 78 See Morgan v. New York & A. E. E. Co., 10 Paige, 290, 40 Am. 
 Dec. 244. As to injunction restraining creditors from enforcing their 
 demands against the corporation, when proceedings have been begun 
 for its voluntary dissolution, see In re Binghamton General Electric- 
 Co., 143 N. Y. 261, 38 N. E. 297; In re French Mfg. Co., 12 Hun, 
 488.
 
 553 INJUNCTION; VOLUNTAEY ASSOCIATION. §§ 309, 310 
 
 CHAPTER XV. 
 
 INJUNCTIONS RELATING TO VOLUNTARY ASSOCIA- 
 TIONS AND NON-STOCK CORPORATIONS. 
 
 XNAXY8I8, 
 
 f 309. In general. 
 
 § 310. Expulsion of members. 
 
 § 311. Same — Injury to property. 
 
 § B12. Expulsion from religious organizations. 
 
 § 313. Expulsion from other societies. 
 
 § 314. Protection of church property rights. 
 
 § 315. Same — When rights depend upon decision of superior church 
 tribunal. 
 
 § 309. In General. — The jurisdiction of equity over 
 voluntary associations and corporations not organized 
 for profit is of a very limited character. So long as 
 the organization acts in accordance with its valid rules, 
 equity will not interfere at the suit of members;^ nor 
 will relief be given when proper redress can be ob- 
 tained within the body itself.^ But when powers are 
 exceeded and rules are disregarded, equity may enjoin 
 at the suit of injured members.^ The ground of the 
 jurisdiction is that there is a contract between the or- 
 ganization and its members, for a violation of which 
 an injunction is a proper remedy. 
 
 § 310. Expulsion of Members.— Courts of equity have 
 often been called upon of late to enjoin the illegal ex- 
 
 1 Bateman v. HoUinger (N. J. Eq.), 30 Atl. 1107; Francis v. Tay- 
 lor, 31 Misc. Rep. 187, 65 N. Y. Supp. 28. 
 
 2 Grand Castle of the Golden Eagles v. Bridgeton Castle (N. J. 
 Eq.), 40 Atl. 849. 
 
 3 Supreme Lodge, Order of Golden Chain v. Simering, 88 Md. 276, 
 71 Am. St. Eep. 409, 40 Atl. 723, 41 L. K. 720; State v. Bankers'
 
 § 310 EQUITABLE EEMEDIES. 554 
 
 pulsion of members of unincorporated associations and 
 benevolent corporations. Persons becoming members 
 of these organizations usually subscribe to and are 
 bound by certain by-laws; and so long as the associa- 
 tion keeps strictly within its rules, the court will liot 
 generally interfere. The cases calling for the aid of 
 equity arise when the rules are exceeded, and in rare 
 cases, w^hen the rules are themselves illegal. 
 
 It is generally asserted to be a fundamental princi- 
 ple of equity that only substantial property rights will 
 be protected. Therefore, it would seem that an injunc- 
 tion should be granted in cases of this kind only where 
 some such right is involved. In cases of social clubs, 
 however, the courts have sometimes gone .further. 
 "In all these cases the suit in law or equity has been 
 sustained upon the ground that the relations of a mem- 
 ber to such society were contractual, and, if the rela- 
 tion had been severed in violation of the law regulating 
 membership enacted by themselves, that there was a 
 breach of contract."^ Thus, it has been said that "in 
 every proceeding before a club, society, or association, 
 having for its object the expulsion of a member, the 
 member is entitled to be fully and fairly informed of 
 the charge, and to be fully and fairly heard"; and if 
 such hearing is not allowed, he is entitled to an in- 
 junction.^ "In the absence of defined regulations as 
 
 Union of the World (Neb.), 99 N. W. 531; German Mut. Fire Ins. 
 Co. V. Schwarzwalder (N. J. Eq.), 44 Atl. 769; Kalbitzer v. Goodhue, 
 52 W. Va. 435, 44 S. E. 264; Flaherty v. Portland etc. Benev. Assn. 
 (Me.), 58 Atl. 58 (unwarranted use of funds of mutual benefit 
 society). 
 
 4 Nance v. Busby, 91 Tenn. 303, 18 S. W. 874, 15 L. R. A. 801. 
 
 5 Fisher v. Keane, L. R. 11 Ch. D. 353; Labouchere v. Earl of 
 ■Wharncliffe, 13 Ch. D. 346. In Harington v. Sendall, [1903] 1 Ch. 
 921, expulsion was enjoined, of a member who had violated a resolu- 
 tion raising the annual dues, which resolution was not authorized 
 by the rules governing the club.
 
 555 INJUNCTION; VOLUNTARY ASSOCIATIONS, s^ 311 
 
 to the causes for expulsion, the ordinary principles of 
 justice govern. Offenses against the tenets of the or- 
 der justify action. Caprice and malice do not."® Ac- 
 cordingly, it has been held that an injunction may 
 issue when no just cause for expulsion is shown, even 
 though the outward forms of procedure have been fol- 
 lowed."^ Before resorting to equity, however, the in- 
 jured party should first exhaust his remedy within the 
 organization, especially where no property right is di- 
 rectly involved.^ 
 
 § 311. Same— Injury to Property.— Where an illegal 
 expulsion works a direct injury to property rights, the 
 jurisdiction of equity is clear, and the injunction will 
 be granted without question. The only inquiry in such 
 cases is whether the expulsion is illegal ; and when that 
 is determined, the injunction follows as a matter of 
 course. Thus, when a suspension will necessarily re- 
 
 6 Heaton v. Hull, 28 Misc. Eep. 97, 59 N. Y. Supp. 281. 
 
 7 Id. In this case the court said: "I should therefore hold that, 
 even if the outward forms of the society had been observed in de- 
 grading this chapter and its members, still such a blow was struck 
 to the vital principles of the order and the rights of its members 
 that no formalities could justify such destructive action, and any one 
 aggrieved could appeal to the only resource left, — the benign, yet 
 powerful, protection of the law. And it is a mistake to rest upon 
 the assertion that law recognizes only material property injuries, 
 and has no care for wounded emotions or character. Even in the 
 cruder days of the common law, it gave to the lost service of a 
 daughter or wife pence, while it gave to the hurt sensibilities of the 
 father or husband hundreds of pounds. It atoned for injury to 
 character and wounded feeling by exemplary damages. And courts 
 of equity, such as the one now appealed to, grasp jurisdiction of 
 other than property injuries, where equitable considerations require 
 action to prevent hurt to standing or character which damages may 
 not compensate." 
 
 8 Mead v. Stirling, 62 Conn. 586, 27 Atl. 591, 23 L. R. A. 227; 
 Thomas v. Musical Mut. Pro. Union, 121 N. Y. 45, 24 N. E. 24, 8 
 L. E. A. 175 (reversing 49 Hun, 171, 2 N. Y. Supp. 195); O'Brien v. 
 Musical Mut. P. & B. Union, 64 N. J. Eq. 525, 54 Atl. 150.
 
 8 311 EQUITABLE EEMEDIES. 656 
 
 suit in affecting a member's financial standing, as well 
 as deprive him of the use of property that is common 
 to the whole association, the court will enjoin action 
 under an illegal by-law.* In the case just cited in the 
 note, the plaintiff was a member of a local Board of 
 Fire Underwriters, and was threatened with suspen- 
 sion for employing more agents than the rules allowed. 
 The court held that the rules were void because in re- 
 straint of trade, and that therefore a suspension would 
 be invalid. The injury consisted in loss of business 
 and inconvenience resulting from denial of a member- 
 ship right to consult fire maps. Likewise, a suspen- 
 sion from a Merchants' Exchange for violating a rule 
 which does not warrant suspension,^" or an expulsion 
 from a Board of Trade without opportunity to make 
 a defense which the by-laws permit members to make,^^ 
 will be enjoined at the suit of the injured party. It 
 has been held, however, in a similar case that there 
 can be no injunction after the expulsion has taken 
 place.^2 Tjjg reason given is that the writ of injunc- 
 tion is preventive only, and will not issue to redress 
 past wrongs. It would seem that a sufficient answer 
 to this line of argument is that where the proceedings 
 are illegal there is not an expulsion which the courts 
 will recognize. Hence, the injunction should issue to 
 
 9 Huston V, Eentlinger, 91 Ky. 333, 34 Am. St. Eep. 225, 15 S. 
 W. 867. 
 
 10 Albers v. Merchants' Exchange, 39 Mo. App. 583. 
 
 11 Ryan v. Cudahy, 157 111. 108, 48 Am. St. Eep. 305, 41 N. E. 760, 
 49 L. E. A. 353; Bartlett v. L, Bartlett & Son Co., 116 Wis. 450, 93 
 N. W. 473. An injunction has been allowed to restrain the expulsion 
 of a member from a news association: Inter-Ocean Pub. Co. v. As- 
 sociated Press, 184 111. 438, 75 Am. St. Eep. 184, 56 N. E. 822, 48 
 L. E, A. 568. 
 
 12 Fisher v. Board of Trade, 80 111. 85 ("If appellant has been 
 improperly expelled by proceedings contrary to the constitution and 
 by-laws or rules of the board, a court of chancery cannot restore 
 him ").
 
 557 INJUNCTION; VOLUNTARY ASSOCIATIONS. S 312 
 
 protect the plaintiff's present right of membership. 
 The injunction will not be granted, in the absence of 
 any other ground, when the property injury is con- 
 jectural only, as, for instance, where the punishment 
 is a fine which may lead to suspension if not paid, or 
 if the offense is repeated ;^^ nor will relief be awarded 
 on the ground that due notice of the hearing has not 
 been given, when, as a matter of fact, the member has 
 known of the proceeding and is therefore not injured;^* 
 nor when the association itself is an illegal one.^*^ 
 
 In determining whether or not the expulsion is 
 wrong, the court will generally inquire only into the 
 regularity of the proceedings, and sometimes, as stated 
 above, into the legality of the rules. "Proceedings for 
 expulsion from a beneficiary association must be in ac- 
 cordance with its constitution and by-laws, to the ex- 
 tent that the member expelled shall have notice and 
 shall be tried on a charge within the jurisdiction of the 
 tribunal trying him."^® 
 
 § 312. Expulsion from Eeligious Organizations. — An in- 
 junction will not ordinarily issue to restrain expulsion 
 from a church or religious organization, for generally 
 there is no property right involved. "Church relation- 
 ship stands upon an altogether higher plane, and church 
 membership is not to be compared to that resulting 
 from connection with mere human associations for 
 profit, pleasure or culture. The church undertakes to 
 
 13 Thomas v. Musical Mut. Pr. Union, 121 N. Y. 45, 24 N. E. 24, 
 8 L. E. A. 175 (reversing 49 Hun, 171, 2 N. Y. Supp. 195). 
 
 i4 Grand Com. of Mass. United Order of the Golden Cross 
 V. Stewart, 177 Mass. 235, 58 N. E. 689. 
 
 16 Greer v. Payne, 4 Kan. App. 153, 46 Pac. 190. 
 
 16 Women's Catholic Order of Foresters v. Haley, 86 III. App. 
 330. Gregg v. Massachusetts Med. Soc, 111 Mass. 185, 15 Am. Sep. 
 24, is apparently contra.
 
 9 312 EQUITABLE REMEDIES. 558 
 
 deal only with the spiritual state of man. It does not 
 appeal to his purely human and temporal interests. 
 .... No property rights of a personal kind depend 
 upon membership. No pecuniary right, or civil right 
 of any character" is affected by expulsion. ^"^ There- 
 fore, a minister cannot be enjoined from striking plain- 
 tiff's name from the roll of church communicants.^^ In 
 the case cited, the court said: "All questions of faith, 
 doctrines, and discipline belong exclusively to the 
 church and its spiritual officers; and the courts will 
 neither review their determination on the facts, nor 
 their decision on the question of jurisdiction." "The 
 question of church membership is purely ecclesiastical." 
 Likewise, it is held that a minister cannot enjoin a 
 church court from proceeding with a trial against him.^^ 
 It was urged that a minister has a vested right in his 
 office and the salary and emoluments attached to it; 
 but in answer it was held that the right to salary de- 
 pended upon the continued performance of duties as 
 rector, and that the contract must be construed and 
 enforced by reference to the canons. Whether an ex- 
 emption from taxation and performance of certain civil 
 duties are such property rights as would give the court 
 jurisdiction is more of a question; but granting that 
 they are, the court will determine only whether the 
 tribunal had power to act.^" It cannot inquire into the 
 truth of the charges. 
 
 A distinction is made in at least one case between 
 expulsion of a member by a properly organized tri- 
 bunal and by one not authorized. The "court will 
 
 17 Nance v. Busby, 91 Tenn. 303, 18 S. W. 874. And a court of 
 equity will not in an action for an injunction try title to a church 
 office: Dayton v. Carter, 206 Pa. St. 491, 56 Atl. 30. 
 
 18 Waller v. Howell, 23 Misc. Eep. 236, 45 N. Y. Supp. 790. 
 
 19 Chase v. Cheney, 58 111. 509, 11 Am. Rep. 95. 
 
 20 Walker v. Wainwright, 16 Barb. 486.
 
 559 INJUNCTION; VOLUNTARY ASSOCIATIONS. §§ 313,314 
 
 have nothing to do with the charge of a spiritual of- 
 fensa That is an ecclesiastical question purely. But 
 the inquiry whether or not the tribunal has been organ- 
 ized in conformity with the constitution of the church 
 is not ecclesiastical. It is the same question, and that 
 only, that may arise with respect to any voluntary as- 
 sociation, such as fraternal orders and social clubs. 
 The assertion of jurisdiction in such a case is not an in- 
 terference with the control of the society over its own 
 nienibers; but, on the contrary, it assumes that the 
 constitution was intended to be mutually binding upon 
 all, and it protects the society in fact by recalling it 
 to a recognition of its own organic law."^^ There ap- 
 parently is no property right here, and consequently the 
 case seems difficult to reconcile with the doctrines laid 
 down above. 
 
 § 313. Expulsion from Other Societies. — Because there 
 is no property right involved, it has been held that an 
 injunction will not issue to restrain expulsion from 
 a temperance society,^^ nor from a purely political or- 
 ganization.^^ In both of these cases the right of mem- 
 bership is entirely distinct from any right of property. 
 
 § 314. Protection of Church Property Eights.— While 
 equity is not concerned with matters purely ecclesias- 
 tical, it will interfere by injunction to protect the ille- 
 gal impairment of vested rights in church property. 
 
 21 Hatfield v. De Long, 156 Ind. 207, 83 Am. St. Eep. 194, 59 N. 
 E. 483, 51 L. R. A. 751; s. c, 31 Ind. App. 210, 67 N. E. 55L In 
 Bonacum v. Murphy (Neb.), 98 N. W. 1030, an injunction was s:nd 
 to be proper pending an appeal to a higher church tribunal; but see 
 s. c, 104 N. W. 180. 
 
 22 Hussey v. Gallagher, 61 Ga. 86. 
 
 23 Kearns v. Howley, 188 Pa. St. 116, 68 Am. St. Eep. 852. 41 Atl. 
 273, 42 L. E. A. 235; McKane v. Adams, 123 N. Y. 609, 20 Aiu. bt. 
 Eep. 785, 25 N. E. 1057.
 
 9 314 EQUITABLE REMEDIES. 560 
 
 In a leading case on the subject, the questions which 
 may arise were divided into three groups, viz. : 
 
 "1. The first of these is when the property which is 
 the subject of controversy has been, by the deed or will 
 of the donor, or other instrument by which property 
 is held, by the express terms of the instrument devoted 
 to the teaching, support or spread of some specific form 
 of religious doctrine or belief. 
 
 "2. The second is when the property is held by a 
 religious congregation which, by the nature of its or- 
 ganization, is strictly independent of other ecclesias- 
 tical associations, and so far as church government is 
 concerned, owes no fealty or obligation to any higher 
 authority. 
 
 "3. The third is where the religious congregation 
 or ecclesiastical body holding the property is but a 
 subordinate member of some general church organh 
 ization in which there are superior ecclesiastical tri- 
 bunals with a general and ultimate power of control 
 more or less complete in some supreme judicatory over 
 the whole membership of that general organization."^* 
 The cases will nearly all fall into this classification, 
 and therefore will be discussed according to it. 
 
 (1) The rule in regard to the first class is so well ex- 
 pressed in the same case that it is unnecessary to add 
 to it. "In regard to the first of these classes it seems 
 hardly to admit of a rational doubt that an individual 
 or an association of individuals may dedicate property 
 by way of trust to the purpose of sustaining, support- 
 ing and propagating definite religious doctrines or prin- 
 ciples, provided that in doing so they violate no law 
 of morality, and give to the instrument by which their 
 purpose is evidenced, the formalities which the laws 
 
 24 Watson V, Jones, 13 Wall. 679, 20 L. ed. 666.
 
 561 INJUNCTION; VOLUNTAEY ASSOCIATIONS. § 314 
 
 require. And it would seem also to be the obvioua 
 duty of the court, in a case properly made, to see that 
 the property so dedicated is not diverted from the trust 
 which is thus attached to its use. So long as there 
 are persons qualified within the meaning of the original 
 dedication, and who are also willing to teach the doc- 
 trines or principles prescribed in the act of dedication, 
 and so long as there is anyone so interested in the exe- 
 cution of the trust as to have a standing in court, it 
 must be that they can prevent the diversion of the prop- 
 erty or fund to other and different uses. This is the 
 general doctrine of courts of equity as to charities, and 
 it seems equally applicable to ecclesiastical matters. "^'^ 
 (2) In the second class, the ordinary rules as to vol- 
 untary associations apply. The property must be man- 
 aged and controlled according to the rules of the or- 
 ganization. As a general rule, the majority may deal 
 with the property as it sees fit, subject only to the re- 
 striction that the regular method of procedure must 
 be followed. Therefore, the majority may enjoin the 
 minority from unlawful interference with the church 
 property where the ordinary equitable rules permit 
 such a remedy.^" But if the majority attempts to act 
 without regard to the rights of the minority, as where 
 it attempts without authority to make a change in the 
 customs of the church by installing an organ in the 
 house of worship,^^ an injunction will issue upon the 
 petition of the minority. Where the majority decides 
 upon a course of action at a meeting of which due notice 
 
 25 Watson V. Jones, 13 Wall. 679, 20 L. ed. 666. See, also. Cape v. 
 Plymouth Congregational Church, 117 Wis. 150, 93 N. W. 449. 
 
 26 Trustees etc. German Evangelical Cong. v. Hoessli, 13 Wis. 388. 
 A deposed pastor m&j be enjoined from using the church property: 
 Morris St. Baptist Church v. Dart, 67 S. C. 338, 100 Am. St. Eep. 727, 
 45 S. E. 753. 
 
 27 Hackney t. Yawter, 39 Kan. 613, 18 Pac. 699. 
 
 Equitable Bemedies, YoL 1—36
 
 § 315 EQUITABLE EEMEDIES. 56'-' 
 
 is not given, it cannot enjoin interference with such 
 plans.^^ The majority may determine the rules of dis- 
 cipline, and may expel members for violations thereof. 
 After such expulsion, the rights of the former member 
 as to the church property have ceased, and, therefore, 
 he can be enjoined from interfering.-' But, of course, 
 the minority cannot expel the majority, and if such a 
 thing is attempted, the rights of the majority in the 
 property will be protected by injunction.^'* 
 
 § 315. Same — When Rights Depend upon Decision of Su- 
 .perior Church Tribunal. — (.3) In the third class, where 
 the congregation is but a subordinate member of some 
 general church organization, the rights of any faction 
 to the control of the property depend upon the de- 
 cision of the church tribunals. "Whenever the ques- 
 tions of discipline or of faith, or ecclesiastical rule, 
 custom or law have been decided by the highest of these 
 church judicatories to which the matter has been car- 
 ried, the legal tribunals must accept such decisions as 
 final, and as binding on them, in their application to 
 the case before them."^^ Therefore, the trustees of 
 every local church must hold the property for the use 
 of the party decided by such judicatory to be the real 
 representative of the denomination. In the leading 
 case from which the foregoing abstract is taken, the 
 question arose as to the respective rights of two fac- 
 tions of the Presbyterian Church. The General As- 
 sembly, the highest court of the church, expressed views 
 
 28 Long V. Harvey, 177 Pa. St, 473, 55 Am. St. Rep. 733, 35 Atl. 
 869, 34 L. K. A. 169. 
 
 29 Shannon v. Frost, 42 Ky. (3 B. Mon.) 253. Likewise an ex- 
 communicated member cannot enjoin diversion of property: Nance v. 
 Busby, 91 Tenn. 303, 18 S. W. 874. 
 
 30 Bouldin v. Alexander, 15 Wall. 131, 21 L. ed, 69. 
 
 31 Watson V. Jones, 13 Wall. 679, 20 L. ed. 666,
 
 563 INJUNCTION; VOLUNTARY ASSOCIATIONS. § 315 
 
 on the subject of slavery, which led to the secession of 
 a large number of members from the Southern churches. 
 The result was a dispute as to the rights to the prop- 
 erty. The court held that the questions of discipline 
 and of slavery, under the circumstances, were matters 
 of ecclesiastical cognizance alone; that the decision of 
 the General Assembly was final; that therefore the 
 party acceding to its decision was entitled to the prop- 
 erty, and could enjoin interference therewith by the 
 other faction.^2 
 
 32 Watson V. Jones, 13 Wall. 679, 20 L. ed. 666. Similar questions 
 arose in a line of decisions which for convenience may be called the 
 United Brethren cases. The constitution of this religious organiza- 
 tion provided: "There shall be no alteration of the foregoing cbn- 
 Btitution unless by request of two-thirds of the whole society." 
 "No rule or ordinance shall at any time be passed to change or do 
 away with the confession of faith as it now stands, nor to destroy 
 the itinerant plan." At a general conference it was decided to 
 amend the constitution in such a way as to add to the clearness of 
 expression without a change of meaning. The proposition was sub- 
 mitted to the members and was carried by a vote of more than two- 
 thirds of those voting, but not by two-thirds of all the members. 
 Thereupon a minority withdrew, set up a claim to be the true church, 
 alleged that the majority, by its action, had withdrawn, and claimed 
 the right to control the different congregations. The result was a 
 number of injunction suits to determine the rights of different congre- 
 gations in the several states. In some instances it was held that 
 the question whether the old confession of faith had been super- 
 seded was ecclesiastical, that the courts would not inquire into it, 
 and that therefore the majority was entitled to the aid of the court: 
 Kuns V. Eobertson, 154 111. 394, 40 N. E. 343; Brundage v. Deardorf, 
 92 Fed. 214, 34 C. C. A. 304; Lamb v. Cain, 129 Ind. 486, 29 N. E. 
 13, 14 L. R. A. 518 (not an injunction case). In one case it was held 
 that the change was valid, and that therefore the majority was en- 
 titled to an injunction: Schlichter v. Keiter, 136 Pa. St, 119, 27 Atl. 
 45, 22 L. E. A. 161. And in another it was held that the aclion of 
 the conference was legislative rather than judicial; that it was sub- 
 ject to review; that while the change was illegal, it was not so great 
 as to change the identity, and that therefore the majority was en- 
 titled to control: Philomath College v. Wyatt, 27 Or. 390, 37 Pac. 
 1022, 26 L. R. A. 68 (see, also, 31 Pac. 206). See as to the general 
 proposition, Bonacum v. Harrington, 65 Neb. 831, 91 N. W. 886.
 
 8 315 EQUITABLE EEMEDIES. 564 
 
 The action of the supreme judicatory being final on 
 all such matters, it follows that a determination by 
 such a body of the validity of the appointment of a 
 pastor cannot be questioned in an injunction suit.'* 
 It is for the church court to determine upon the valid- 
 ity of such proceedings.^* And it would seem the bet- 
 ter rule to refuse an injunction to restrain a party 
 from preaching, for that is a mere naked trespass f^ but 
 there is authority for such relief.*' 
 
 ss Gross V. Wieand, 151 Pa. St. 639, 26 Atl. 50. 
 14 Wehmer v. Fokenga, 57 Neb. 510, 78 N. W. 28. 
 «5 German Eyangelical Luth, Church t. Maschop, 10 N. J. Eq. 57. 
 »« Perry r. Shipway, 4 De Gex k J. 353; Cooper r. Gordon, L. E. 
 8 Sq. 24».
 
 565 INJUNCnONi MOETGAGOB AND MORTGAGEE. S 316 
 
 CHAPTER XVI. 
 
 INJUNCTIONS BETWEEN MORTGAGOR AND 
 MORTGAGEE. 
 
 ANALYSIS. 
 
 { 316. Injunction against sale under power in mortgage or tm6t 
 
 deed. 
 S 317. Same; in case of usury. 
 S 318. Same; payment by the mortgagor, or necessity for an account* 
 
 ing. 
 § 319. Injunction on behalf of the mortgagee. 
 S 320. Injunctions relating to chattel mortgages. 
 
 § 316. Injunction Against Sale Under Power in Mortgage 
 or Trust Deed. — A court of equity will enjoin the execu- 
 tion of a power of sale in a mortgage when it appears 
 that the mortgagee is proceeding in an improper or op- 
 pressive manner, or is perverting the power from its 
 legitimate purpose;^ as where, having refused repeated 
 tender, he files a bill to foreclose, dismisses it without 
 prejudice when the cause is ready for hearing, and ad- 
 vertises the land for sale under a power in the mortr 
 gage with the avowed purpose of compelling the pay- 
 ment of another claim which is disputed.^ And in a 
 suit for cancellation^ or redemption* of a mortgage, 
 a motion f«r a temporary injunction restraining the 
 exercise of a power of sale may be granted, when it 
 appears that less inconvenience and injustice will 
 
 1 McCalley v. Otey, 99 Ala. 584, 42 Am. St. Eep. 87, 12 South. 406; 
 8. c, 90 Ala. 302, 8 South. 157; Struve r. Childs, 63 Ala. 473. 
 
 2 McCalley v. Otey, supra. 
 
 3 New England Mortg. Sec. Co. v. Powell, 97 Ala. 483, 12 South. 
 55. See, also, Hodge r. McMahon, 137 Ala. 171, 34 South. 185 
 (chattel mortgage). 
 
 4 Whitley y. Lumber Co., 89 Ala. 493, 7 South. 810.
 
 S 316 EQUITABLE EEMEDIES. CGG 
 
 thereby be caused to the defendant than would result to 
 the complainant from refusing the motion. A sale un- 
 der a mortgage given by a married woman may be en- 
 joined until a hearing is had on the question of her 
 power to execute the mortgage.^ But a sale under a 
 power in a mortgage cannot be enjoined upon the mere 
 ground that the time of the sale is unpropitious, if 
 there is no fraud or collusion on the part of the mort- 
 gagee.® 
 
 Sales under trust deeds in the nature of mortgages 
 come under the general jurisdiction of equity to compel 
 trustees to perform their duties, and to interfere by in- 
 junction to restrain the improper exercise of their pow- 
 ers. The trustee, in such cases, is the agent of both 
 parties, bound to act impartially between them, and 
 ought of his own motion to apply to the court to re- 
 move an impediment to a proper execution of the trust ; 
 and if he should fail to do this, the party injured by 
 his default has a right to make such application, and 
 to enjoin the sale under the trust until such impedi- 
 ment is removed^ 
 
 5 Strom V. American Freehold Land Mort. Co., 42 S. C. 97, 20 S. 
 E. 16. 
 
 6 Warner v. Jacob, L. E. 20 Ch. D. 220. 
 
 Injunction for the purpose of obtaining a set-oflf.—" Without 
 averment of insolvency, or other special equity, a power of sale will 
 not be enjoined for the purpose of enabling the mortgagor to have 
 ascertained and set off against the mortgage debt an uncertain bal- 
 ance that may be due him on a settlement of partnership accounts, 
 or other claim in controversy between him and the mortgagee, thoucjli 
 the cross-demands may be mutual. Such is not a case where the 
 great and irreparable injury will result, which authorizes the court 
 to exercise its extraordinary jurisdiction": Glover v. Hembrec, 82 
 Ala. 324, 8 South, 251. See, also, Sidney Land & Colony Co. v. Mil- 
 ner, Caldwell & F. L. Co,, 138 Ala. 185, 35 South. 48, where an in- 
 junction to prevent the sale for a debt of $35,000 on account of a 
 claim of $10, was denied. 
 
 T Hartman v. Evans, 38 W. Va, 669, 18 S. E, 810, and cases citcfl;
 
 567 INJUNCTION; MOETGAGOR AND MOETGAGEE. § 317 
 
 § 317. Same; in Case of TJsury. — Relief by injunction 
 is freely granted to restrain the sale under power in 
 a mortgage or trust deed of laud mortgaged to secure 
 a usurious debt, until an accounting is had of the 
 amount legally due.^ It is a familiar application, in 
 such cases, of the maxim, "He who seeks equity must 
 do equity," that relief will be refused when the mort- 
 gagor has not paid or offered to pay the amount of the 
 
 Iluilson V. Barham, 101 Va. 63, 99 Am. St. Eep. 849, 43 S. E. 189. 
 Thus, where a trust deed was given to secure tlie payment of the 
 purchase-money of land, and an adverse claim to the land was after- 
 ward discovered, a sale under the trust deed was enjoined until such 
 adverse claim should be regularly decided: Gay v. Hancock, 1 Eand. 
 (Va.) 72; Miller v. Argyle's Exr., 5 Leigh (Va.), 4C0; but see 
 Morgan v. Glendy, 92 Va. 86, 22 S. E. 854, where the defendant of- 
 fered to correct the defect in the title. See, also, George v. Derby 
 Lumber Co., 81 Miss. 725, 33 South. 496. 
 
 An injunction should not issue on account of defects in adver- 
 tising, etc., when it appears that the complainant could prevent a 
 Bale by paying the amount admitted to be due: Meetz v. Mohr, 141 
 Cal. 667, 75 Pac. 298. In Smith v. Parker, 131 N. C. 470, 42 S. E. 
 910, a temporary injunction was issued to restrain a sale under a 
 deed of trust given by sureties, who claimed that they had been re- 
 leased by an extension of time given to the principal. In Dunna- 
 way V. O'Eeilly (Mo, App.), 79 S. W. 1004, an injunction was issued 
 on the ground that the time had been extended and that the sum 
 secured was therefore not due. 
 
 8 Alston V. Morris, 113 Ala. 506, 20 South. 950; Edmund's Exrs. 
 V. Bruce, 88 Va. 1007, 14 S. E. 840; Marks v. Morris, 2 Munf. (Va.) 
 407, 5 Am. Dec. 481; Hartman v. Evans, 38 W. Va. 669, 18 S. E. 810; 
 Smith V. McMillan, 46 W. Va. 577, 33 S. E. 283, Statutes in some 
 states expressly provide for an injunction to prevent such sale, 
 pending suit to determine the existence of the usury: Code W. Va. 
 (1891), c. 96, p. 713. Where the court, by its final decree, ascertains 
 the amount legally due, after deducting the usurious interest, and 
 orders a foreclosure under direction of the court unless payment 
 is made, it is error to dissolve a preliminary injunction which had 
 been granted restraining a sale under the power: Alston v. Morris, 
 supra. In Eorer v. Holston Nat. B. & L. Assn. (W. Va.), 46 S. 
 E. 1018, relief was granted at suit of a grantor in a trust deed 
 who had sold his interest in the land.
 
 S 318 EQUITABLE EEMEDIES. 568 
 
 principal and legal interest that is due.* When, how- 
 ever, the complaint leaves the mortgage unimpeached, 
 to stand for the full balance of the principal lent upon 
 it, and legal interest, and seeks only to restrain the 
 sale of the mortgaged premises for a greater amount, 
 no tender is necessary of the principal and interest ad- 
 mitted to be equitably due on the mortgage.^" It is 
 held that the defense of failure to make tender of the 
 legal amount, if not taken advantage of by answer, will 
 be deemed to be waived.^ ^ 
 
 § 318. Same; Payment by the Mortgagor, or Necessity for 
 an Accounting. — Payment of the mortgage indebtedness 
 is a sufficient ground for restraining a sale under the 
 power in the mortgage or trust deed ;^^ or a tender of the 
 amount to the trustee, followed by his refusal to exe- 
 cute a release in proper form, and a payment of the 
 amount into court.^^ 
 
 Where there is a controversy as to the amount due 
 on the mortgage, arising out of numerous transactions 
 between the parties, and an accounting is therefore 
 
 9 Stanley v. Gadsby, 10 Pet. (35 U. S.) 521, 9 L. ed. 518; Ward 
 V. Bank of Abbeville, 130 Ala. 597, 30 South. 341. By statutes in 
 some states all interest is forfeited, and payment of the principal 
 only can be made a condition of relief: Southern Home B. & L. 
 Assn. V. Toney, 78 Miss. 916, 29 South. 825. See Pom. Eq. Jur., § 391. 
 
 10 Haggerson v. Phillips, 37 Wis. 364. 
 
 11 Price V. Empire Loan Assn., 75 Mo. App. 551. 
 
 12 Dockery v. French, 69 N. C. 308, under a statute (Maryland, 
 Code, art. 66, § 16), providing that no injunction to stay a sale of 
 mortgaged property shall be granted unless the party praying the 
 injunction shall on oath allege payment in whole or in part, and that 
 the mortgagee refuses to credit the same, the court has jurisdiction, 
 on a bill to enjoin such sale, to determine not only that the mort- 
 gage debt was unpaid, but that the persons named in the mortgage 
 had power to make the sale: Barrick v. Horner, 78 Md. 253, 44 Am. 
 Bt. Rep. 283, 27 Atl. 1111. 
 
 18 Chappell V. Clarke, 92 Md. 98, 48 Atl. 36.
 
 669 INJUNCTION; MORTGAGOR AND MORTGAGEE. f 319 
 
 necessary to ascertain the sum still due, a proper case 
 is presented for an injunction to suspend the proposed 
 sale under the power until the balance due is ascer- 
 tained and declared by a decree of the court.^* When 
 it is found that the debt due is less than the amount 
 called for by the deed of trust, the court may, in its dis- 
 cretion, either dissolve the injunction as to the amount 
 due, and dismiss the bill, or may retain the case, and 
 have the trust executed under its own supervision.^^ 
 
 § 319. Injunction on Behalf of the Mortgagee The jur- 
 isdiction to restrain waste of mortgaged premises is 
 treated elsewhere.^® Injunction is sometimes sought 
 to restrain a sale of the mortgaged property under sub- 
 sequent liens. It is held that a mortgagee in posses- 
 sion, whose mortgage is duly recorded, cannot enjoin 
 a sale under execution issued upon a junior judgment 
 against the mortgagor, simply because his mortgage is 
 
 14 Bridgers v. Morris, 90 N. C. 32; Capeliart v. Biggs, 77 N. C. 
 261; Purnell v. Vaughan, 77 N. C. 268; Harrison v. Bray, 92 N. C. 
 488; Faison v. Hardy, 114 N. C. 58, 19 S. E. 91; Farmers' Savings & 
 B. & L, Assn. V. Kent, 117 Ala. 624, 23 South. 757; Henson v. 
 Brooks, 67 Ala. 491; Martin v. Kester, 46 W. Va. 438, 33 S. E. 238; 
 Sandusky v. Faris, 49 W. Va. 150, 38 S. E. 563. In the last case it 
 is said: "When, from any cause, the amount due and to be raised 
 from a sale is uncertain, such uncertainty is an impediment to the 
 proper execution of the trust, and application may be made by the 
 trustee, the grantor, or any of the beneficiaries of the trust, to a 
 court of equity to have it removed. But, to sustain an injunction 
 upon the ground of such uncertainty, the complainant must suffici- 
 ently allege it, and, if it be denied in the answer, he must prove it." 
 In this case the deed of trust amounted to a general assignment for 
 the benefit of creditors, and the grantee was not permitted to enjoin 
 a sale thereunder, because of uncertainty as to the amounts of his 
 debts, etc. 
 
 15 Fry V, Old Dominion B. & L. Assn., 49 W. Va. 61, 35 S. E. 842; 
 Crenshaw v. Seigfried, 24 Gratt. 272. 
 
 16 See chapter XXII. That a mortgagee in possession under the 
 mortgage may enjoin the removal of crops by one claiming under the 
 mortgagor, see Bagnall v. Villar, L. B. 12 Ch. D. 812.
 
 § 320 EQUITABLE KEMEDIES. 570 
 
 a prior lien upon the property; since any sale under the 
 execution can only pass the title to the mortgaged 
 property subject to the mortgage if valid.^'^ Whether 
 a prior mortgagee whose mortgage has been canceled 
 of record by mistake is entitled to the same relief against 
 a junior lienholder is a question which, upon the au- 
 thorities, is open to doubt.^^ 
 
 § 320. Injunctions Relating to Chattel Mortgages. — In 
 suits to restrain the foreclosure of chattel mortgages 
 the question usually arises of the adequacy of the legal 
 remedy or defense. It has been held that a chattel 
 mortgagor, having both the title to and possession of 
 the mortgaged property, may have a temporary injunc- 
 tion to restrain its sale, without seizure, by the mort- 
 gagee, on a complaint showing a tender rendering the 
 mortgage null and void ( under the terms of a statute) ; 
 in such case the plaintiff, obviously, could neither bring 
 an action of replevin nor an action for damages for 
 
 17 American Freehold Land & M. Co. v. Maxwell, 39 Fla. 489, 22 
 South. 751. "If the real estate is sold, it cannot be removed, nor is 
 it rendered less valuable by a rule under execution. If a prior mort- 
 gagee were allowed to enjoin sales by subsequent lienholders, it 
 would, at his election, as against the demands of other creditors, place 
 in his hands a perpetual shield, and incase the mortgaged property 
 in impenetrable armor." 
 
 18 Compare Merchants' & Mechanics' Bank v. Tillman, 106 Ga. 
 55, 31 S. E. 794, with Wiedner v. Thompson, 66 Iowa, 283, 23 N. W, 
 670. 
 
 Temporary injunction against enforcement of a subsequent tax lien. 
 In Allison v. Corson, 88 Fed. 581, 32 C. C. A, 12, a first mortgagee 
 brought an action to enjoin the assignee of a tax certificate from 
 taking a deed to the mortgaged premises, alleging that the taxes, 
 a part of which were illegal, were levied after his mortgage was 
 made; that until after the hearing in a suit to foreclose his mort- 
 gage, to which the second mortgagee was a party, the certificate was 
 held by the second mortgagee, and then assigned. It was held that, 
 it not being clear that the complainant might not succeed upon the 
 merits, a temporary injunction should issue pending the final hearing.
 
 571 INJUNCTION; MORTGAGOR AND MORTGAGEE. § 320 
 
 an nnlawfiil seizure of the property.'® On the other 
 hand, one Avho has obtained the legal title to the mort- 
 gaged chattels cannot enjoin a sale on foreclosure by a 
 mortgagee who is in possession of them, for the purpose 
 of testing the validity of the mortgage, since the com- 
 plainant has a full remedy by action of replevin or 
 tort f^ and a mortgagor who is sued in replevin for the 
 recovery of mortgaged property for the purpose of fore- 
 closure may in such action interpose any defense to the 
 mortgage debt, such as usury, and cannot, therefore, 
 maintain an independent suit to enjoin the foreclos- 
 ure.^' Where a chattel mortgage gives the mortgagee 
 the right to take possession and sell the property at any 
 time when he feels insecure, such sale will not be en- 
 joined.2^ 
 
 Where the chattel mortgage does not transfer the 
 right to the immediate possession of the mortgaged 
 property, the mortgagee, pending foreclosure,^^ or even 
 before the mortgage debt is due, may, as against the 
 mortgagor or purchasers from him with notice or with- 
 out consideration, restrain by injunction the destruc- 
 tion or disposal of the mortgaged chattels, their re- 
 moval from the jurisdiction, and other acts done, with 
 a view to defeating his lien.'^* The mortgagor, how- 
 
 19 Seabrook v. Mostowitz, 51 S. C. 433, 29 S. E. 202. See, also, 
 that a chattel mortgagor in possession, on a complaint alleging that 
 nothing is due on the mortgage, may have an injunction against fore- 
 closure by extra-judicial proceedings: B^dgett v. Frick, 28 S. C, 176, 
 5 S. E. 355; Mayrant v. Dickerson, Rich. Eq. Gas. (S. C.) 201. 
 
 20 Jersey City Milling Co. v. Blackwell, 58 N. J. Eq. 122, 44 AtL 
 153, 49 Cent. L. J. 441. 
 
 21 Treanor v. Sheldon Bank, 90 Iowa, 575, 58 N. W. 914. 
 
 22 Cline V. Lfbby, 46 Wis. 123, 32 Am. Rep. 700, 49 N. W. 832. 
 
 23 Schoonover v. Condon, 12 Wash. 475, 41 Pac. 195. 
 
 24 Walker v. Eadford, 67 Ala. 446; Clagett v. Salmon, 5 Gill & J. 
 (Md.) 314; Bank of Ukiah v, Moore, 106 Cal. 673, 39 Pac. 1071; Mc- 
 Cormick v. Hartley, 107 Ind. 248, 6 N. E. 357 (to restrain foreclosura
 
 § 320 EQUITABLE REMEDIES. 572 
 
 ever, is not to be thus hindered in the legitimate use ot 
 the property; and a mere temporary removal of the 
 property out of the state, accompanied by an honest in- 
 tention to return it before the law day of the mortgage, 
 and without any intention to affect, embarrass, or im- 
 pair the rights of the mortgagee, will not authorize an 
 injunction to prevent the removal of the property .^'^ 
 In Iowa it is held that one chattel mortgagee cannot 
 enjoin the foreclosure of another chattel mortgage, 
 whether prior or subsequent, as the legal remedies are 
 adequate.*' 
 
 of mortgage subsequent to plaintiff 'b, executed in frand of mort- 
 gagor's creditors), citing Pom. Eq. Jur., § 1345. 
 
 25 Walker v. Radford, supra. 
 
 26 McCormick Harvesting Machine Co. r. De La Mater, 114 Iowa, 
 382, 86 N. W. 365; Eankin v. Eankin, 67 Iowa, 322, 25 N. W. 263.
 
 673 INJUNCTION; PUBLIC OFFICEKa S 321 
 
 CHAPTER XVII. 
 
 INJUNCTIONS AGAINST PUBLIC OFFICEES. 
 
 ANALYSIS. 
 
 § 321. Public officers — In general. 
 
 § 322. Same — When relief granted. 
 
 § 323. Same — When not granted. 
 
 § 324. Political acts. 
 
 § 325. Federal officers. 
 
 § 326. State officers — Tax-payers' suits. 
 
 § 327. No relief when, in effect, against state. 
 
 § 328. Injunctions against executive officera 
 
 f 329, Discretionary acts. 
 
 § 330. Suits by officers against other officers. 
 
 § 331. Elections. 
 
 § 332. Same — Continued. 
 
 § 333. Title to public office. 
 
 § 334. Same — Continued. 
 
 § 335. Possession of office protected. 
 
 § 336. Payment of salaries. 
 
 § 337. Removal of officers. 
 
 § 338. Action of de facto officers. 
 
 § 321. Public Officers — In General. — ^In general, a public 
 ofllcermaybe restrained, in a case coming under some 
 recognized head of equity jurisdiction, from acting il- 
 legally to the injury of individuals. The mere fact 
 that he is an oflBcer and is acting illegally, is not suf- 
 ficient to warrant equitable interference.^ There must, 
 
 1 This rule is well stated in People v. Canal Board, 55 N. Y. 390: 
 "A court of equity exercises its peculiar jurisdiction over public 
 officers to control their action only to prevent a breach of trust af- 
 fecting public franchises, or some illegal act under color or claim of 
 right affecting injuriously the property rights of individuals. A 
 court of equity has, as such, no supervisory power or jurisdiction 
 over public officials or public bodies, and only takes cognizance of 
 actions against or concerning them when a case is made coming
 
 i 322 EQUITABLE EEMEDIES. 574 
 
 in addition, be an injury to a property right of the 
 party applying for relief. Equity does not concern it- 
 self with political affairs, as such. 
 
 § 322. Same — When Relief Granted. — When a violation 
 of a plain official duty, requiring no exercise of discre- 
 tion, is threatened, one who will sustain injury thereby, 
 for which adequate compensation cannot be had at law, 
 may have an injunction to prevent it.^ Therefore, 
 when, in such a case, there is irreparable injury and no 
 adequate remedy at law, an injunction is proper. Thus, 
 it will issue to restrain a board of pilot commissioners 
 from icYoking a license for an act which the statute 
 does not make cause for forfeiture;^ or to restrain an 
 insuiance commissioner from illegally refusing a li- 
 cense to do business in the state, when the statute does 
 
 within one of the acknowledged heads of equity jurisdiction. To 
 entitle plaintiff to prohibition by injunction from a court of equity, 
 either provisional or perpetual, he must not only show a clear legal 
 and equitable right to the relief demanded or to some part of it, 
 and to which the injunction is essential, but also that some act ia 
 being done by the defendant, or is threatened and imminent, which 
 will be destructive of such right, or cause material injury to him. ' ' 
 In La Chapelle v. Bubb, 69 Fed. 481, however, a contrary doctrine 
 seems to be laid down. The court in that case said: "Under ordi- 
 nary circumstances this court would not grant an injunction to pre- 
 vent a trespass; but the defendant Bubb justifies his proposed ac- 
 tion on the ground that he is an officer of the United States gov- 
 ernment, acting only in obedience to orders from his superior offi- 
 cers in the Indian department, and for that reason, I deem it entirely 
 proper to restrain him from committing a tort while assuming to 
 act in his official capacity." 
 
 2 Louisiana Board of Liquidation v. McComb, 92 U. S. 531, 23 L. 
 ed. 623; Mizner v. School District (Neb.), &6 N. W. 128; Trustees 
 of Burroughs School Dist. v. Board of Control, 62 S. C. 68, 39 S. E. 
 793. In School Township v. Wiggins, 122 Iowa, 602, 98 N. W. 490, 
 a school township was allowed to maintain the action. See, also. 
 School Dist. No. 44 v. Turner, 13 Okla. 71, 73 Pac. 952. 
 
 3 Morris v. Board of Pilot Commissioners, 7 Del. Ch. 136, 30 Atl, 
 667.
 
 575 INJUNCTION; PUBLIC OFFICERS. § 322 
 
 not give an absolute discretion;^ or to restrain a state 
 board of health from interfering with one in the prac- 
 tice of his profession as an osteopath, when such board 
 has no jurisdiction.^ Likewise, it is proper where 
 health officers impose unlawful quarantine regulations, 
 the property right in such a case being the right to 
 travel to different parts of the state ;^ or where a post- 
 master improperly refuses to deliver mail to the com- 
 plainant;'^ or where the Secretary of the Interior at- 
 tempts without authority to annul the action of his 
 predecessor in approving the location of a railroad's 
 right of way over the public lands ;^ or where a state 
 official attempts to deprive an individual of his real 
 property without due process of law under an uncon- 
 stitutional enactment.® And in general, whenever such 
 acts will do great harm to the plaintiff's business,^" or 
 make him liable to heavy penalties, he is entitled to this 
 relief.^ ^ 
 
 An injunction is the proper remedy when wrongful 
 acts, involving no discretion, amount to a trespass 
 which is either continuous in its nature or of such a 
 character as to be a permanent injury to the freehold.^^ 
 
 4 Mutual Life Ins. Co. v. Boyle, 82 Fed. 705. It may likewise is- 
 sue to restrain him from compelling the use of a uniform policy, in 
 excess of authority: Phenix Ins. Co. v. Perkins (S. D.), 101 N. W. 
 1110. 
 
 5 Nelson v. State Board of Health, 108 Ky. 769, 22 Ky. Law Hep. 
 438, 57 S. W. 501, 50 L. E. A. 383. 
 
 6 Wong Wai v. Williamson, 103 Fed. 1. 
 
 7 Fairfield Floral Co. v. Bradbury, 87 Fed. 415. 
 
 8 Noble V. Union Eiver Logging R, Co., 147 U. S. 165, 13 Sup. Ct. 
 271. 
 
 9 Davis V, Gray, 16 Wall. 203, 21 L. ed. 447. 
 
 10 Cotting V. Kansas City Stock Yards Co., 82 Fed. 850; Union 
 Terniinal R. Co. v. Board of R. R. Commrs., 54 Kan, 352, 38 Pac. 
 290. 
 
 11 Brigrgs V. Buckingham, 6 Del. Ch. 267, 23 Atl. 858; Van Lear v. 
 Eisele, 126 Fed. 823; Buster v. Wright (Ind. Ter.), 69 S. W. 882. 
 
 12 Ryan V. Brown, IS Mich. 196, 100 Am. Dec. 154; Raleigh v. 
 Goshens, [1898] 1 Ch. 73.
 
 § 323 EQUITABLE BEMEDIES. 576 
 
 Thus, where inspectors acting under a claim of right ex- 
 ceed their powers in providing for the drainage of 
 swamp lands/^ or where canal commissioners threaten 
 to make an illegal appropriation of land for canal pur- 
 poses, an injunction will issue.^* It will also issue 
 when the illegal acts amount to a nuisance,^ '^ cast a 
 cloud upon the title to real estate^® or will necessitate 
 a multiplicity of suits.^'^ Thus, where a failure to obey 
 an order unauthorized and void would subject a plain- 
 tiff in his daily business to large numbers of individual 
 actions and heavy penalties, an injunction is the only 
 efficacious remedy.^ ^ Likewise, it has been held in the 
 federal courts that when a state insurance commissioner 
 by an unauthorized act attempts to keep a great num- 
 ber of companies out of the state, an injunction is 
 proper because of the great number of suits which would 
 be necessary at law.^* 
 
 § 323. Same — When not Granted An injunction will 
 
 not be granted, however, where the case is not brought 
 under some recognized head of equity jurisdiction,^** 
 nor where there is a complete and adequate remedy at 
 law.^^ Thus, it will be refused where there is an ade- 
 
 13 Belknap v. Belknap, 2 Johns. Ch. 463, 7 Am. Dec. 648i, 
 
 14 McArthur v. Kelly, 5 Ohio, 139. 
 
 15 Sels V. Greene, 88 Fed. 129. 
 
 16 Kirwan v. Murphy, 83 Fed. 275, 28 C. C. A. 348. 
 
 17 Kirwan v. Murphy, 83 Fed. 275, 28 C. C. A. 348; Pacific Ex- 
 press Co. V. Cornell, 59 Neb. 364, 81 N. W. 377. 
 
 18 Dinsmore v. Southern Express Co., 92 Fed. 714. 
 
 19 Liverpool & London & Globe Ins. Co. v. Clunie, 88 Fed. 160. 
 
 20 Balogh V. Lyman, 6 App. Div. 271, 39 N. Y. Supp. 780. 
 
 21 It is believed that this statement is borne out by the cases cited 
 in illustration. However, it has been held that an injunction will 
 issue to restrain a trespass by a public officer acting under a claim 
 of right in cases where it will not issue against individuals: La 
 Chapelle v. Bubb, 69 Fed. 481; Eyan v. Brown, 18 Mich. 196, 100 Am, 
 Dec. 154 (dictum).
 
 677 INJUNCTION; PUBLIC OFFICEES. S 323 
 
 quate remedy by mandamus,^^ as where a county clerk 
 denies a searcher of records access to the records of a 
 particular title.^^ Likewise, it will be refused where 
 full relief can be obtained by certiorari.^* And in 
 many cases ample satisfaction can be obtained in a suit 
 to recover damages.^^ Thus, where an inspector, act- 
 ing under an unconstitutional law, threatens to sell 
 oyster grounds for non-payment of rent,^^ or where a 
 commissioner of highways unlawfully threatens to re- 
 move a house encroaching on a highway ,2^ there is said 
 to be an adequate remedy at law, and equitable relief 
 will be refused. Mere unconrtitutionality affords no 
 ground for such relief.^® Again, an injunction will 
 not issue to prevent the misappropriation of money by 
 an officer of another court, for ordinarily there is an 
 adequate remedy there.^^ 
 
 It is necessary to show irreparable injury to a sub- 
 stantial property right, and if such injury is not clearly 
 made out, relief will be refused.^*^ Therefore, when it 
 is not apparent that irreparable injury will result 
 
 22 Nassau Electric K. Co. v. White, 12 Misc. Kep. 631, 34 N. Y. 
 Snpp. 960; Barber v. West Jersey Title & Guar. Co., S3 N. J. Eq. 
 358, 32 Atl. 222, 371; Coquard v. Indian Grave Drainage Dist., 69 
 Fed. 867, 16 C. C. A. 530, 34 U. S. App. 169. 
 
 23 Barber v. West Jersey Title & Guar. Co., 53 N. J. Eq. 158, 32 
 Atl. 222, 371. 
 
 24 Pennsylvania E. Co. v. N. D. & N. J, J. C. Ey, Co., 56 Fed. 
 697. 
 
 25 Coquard v. Indian Grave Drainage Dist., 69 Fed. 867, 16 C. C. 
 A. 530, 34 U. S. App. 169. 
 
 26 Thomas v. Eowe (Va.), 22 S. E. 157. 
 
 27 Flood V. Van Wormer, 147 N. Y. 284, 41 N. E. 569, affirming 
 70 Hun, 415, 24 N. Y. Supp. 460. 
 
 28 State ex rel. Kenamore v. Wood, 155 Mo. 425, 56 S. W. 474, 48 
 L. E. A. 596; People v. District Court, 29 Colo. 182, 68 Pac. 242. 
 
 29 Johnson v. Gilmer, 113 Ga. 1146, 39 S. E. 469. 
 
 30 Seccomb v. Wurster, 83 Fed. 856; Business Men a League v. 
 Waddill, 143 Mo. 495, 45 S. W. 262, 40 L. E. A. 501. 
 
 Equitable Eemedies, Vol. 1—37
 
 I 324 EQUITABLE REMEDIES. 578 
 
 therefrom, an injunction will not issue to restrain a 
 board from taking testimony preparatory to fixing tele- 
 phone rates,^^ nor to restrain a board of arbitration 
 from hearing a dispute when its jurisdiction is ques- 
 tioned,^^ nor to prevent the enforcement of a statute 
 regulating street-car fares.^^ Again, where it is doubt- 
 ful whether any injury whatever will result, no relief 
 will be granted.^^ 
 
 Where the legality of the officer's action is doubtful, 
 but it is not clearly illegal, a court of equity will not 
 interfere.^^ Therefore, an injunction will not issue to 
 prevent interference with Sunday baseball games, when 
 the legality of such games is in doubt.^® And even 
 though the officer may be exceeding his authority, a 
 party who does not come into court with clean hands 
 will be refused relief.^'^ When an injunction against 
 an officer will be really against another individual, it 
 will not be granted until such other party is brought 
 into court.^^ It is also held that an injunction will be 
 denied when the injury to the people in general from 
 its issuance will overshadow the benefit to the com- 
 plainants.^* 
 
 § 324. Political Acts. — As equity deals with property 
 rights alone, an injunction will not issue to restrain 
 
 31 Nebraska Tel. €o. v. Cornell, 58 Neb. 823, 80 N. W. 43. 
 
 32 N. O. City & L. R. Co. v. State Board of Arbitration, 47 La. 
 Ann. 874, 17 South. 418. 
 
 33 Ahern v. Newton & B. St. Ey. Co., 105 Fed. 702. 
 
 34 New York Cent. & H. E. E. Co. v. Haffen, 90 Hun, 260, 35 N. Y. 
 Supp. 806. 
 
 35 Glaze V. Bogle, 97 Ga. 340, 22 S. E, 969. 
 
 86 Capital City v. Police Commissioners, 9 Misc. Eep. 189, 29 N. 
 Y. Supp. 804. 
 
 37 Weiss V. Herlihy, 23 App. Div. 608, 49 N. Y. Supp. 81. 
 
 38 Union Terminal E. Co, v. Board of R. E. Commrs., 52 Kan. 680, 
 35 Pac. 224. 
 
 30 People V. District Court, 29 Colo. 182, 68 Pac. 242.
 
 579 INJUNCTION; PUBLIC OFFICERS. §§ 325, 326 
 
 political acts of public ofiQcers. Thus, the Secretary 
 of War will not be enjoined from taking action which 
 might destroy the government of a state, for only a 
 political question is involved.^^ Likewise, a Secretary 
 of State will not be enjoined from issuing a city 
 charter;** nor will an injunction issue in that class of 
 cases, considered later, where title to office or questions 
 relating to elections are involved.*^ This rule prevails 
 although a state by its election law deprives a person 
 of rights to vote guaranteed by the fifteenth amend- 
 ment.*^ 
 
 § 325. Federal Officers — An injunction cannot be is- 
 sued by a state court to restrain a federal officer or 
 any subordinate in the discharge of his duties as a 
 government officer.** To allow such a jurisdiction 
 would result in conflict between the state and federal 
 authorities. It might result in an army officer, for in- 
 stance, being dismissed from the service if he refused to 
 obey the commands of his superiors, or being thrown 
 into a county jail for contempt if he did obey. 
 
 § 326. State Officers — Tax-payers' Suits.— The right of a 
 tax-payer to enjoin acts of an officer of a municipal cor- 
 poration which involve waste and improper expenditure 
 
 40 Georgia v. Stanton, 6 Wall. 50, 18 L. ed. 721. 
 
 41 Larcom v. Olin, 160 Mass. 102, 35 N. E. 113. 
 
 42 Tupper V. Dart, 104 Ga. 179, 30 S. E. 624; State v. Gibbs, 13 
 Fla. 55, 7 Am, Eep. 233; Hardesty v. Taft, 23 Md. 513, 87 Am. Dec. 
 384; Melody v. Goodrich, 70 N. Y, Supp. 568, 35 Misc. Rep. 138. 
 
 43 Green v. Mills, 69 Fed. 852, 16 C. C. A. 516, 30 L. E. A. 90; 
 Gowdy V. Green, 69 Fed. 865. And equity will not compel an officer 
 to place an applicant's name upon the polling list: Giles v. Harris, 
 189 U. S. 475, 23 Sup. Ct. 639, 47 K ed. 909. 
 
 44 In re Turner, 119 Fed. 231, applying the principle laid down in 
 In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. ed. 55, and in Ohio 
 V. Thomas, 173 U. S. 276, 19 Sup. Ct. 453, 43 L. ed. 699. See, aiso. 
 Sheriff v. Turner, 119 Fed. 782.
 
 S 32G EQUITABLE REMEDIES. 580 
 
 of public funds is considered in the chapter on Munic- 
 ipal Corporations. A different question arises, how- 
 ever, when a tax-payer seeks to enjoin a state ofiQcer. 
 "The principle upon which the doctrine in regard to 
 municipal, or quasi municipal, corporations is based, 
 flows from its analogy to a well-settled doctrine in 
 equity governing private corporations, where each stock- 
 holder has an interest in the property of the corpora- 
 tion, and may interfere to protect the corporate funds 
 from the illegal or fraudulent acts of its officers. But 
 this reasoning cannot apply to a state government. 
 The county is a quasi corporation ; the state is a sov- 
 ereignty. The county only possesses such powers as 
 the legislature of the state confers upon it. Its rev- 
 enues, its property, its very existence, depend upon 
 statutory enactment. It can be enlarged, dismembered, 
 or annihilated, at the will of the state. The state, on 
 the contrary, has all the powers not relinquished to the 
 general government by the articles of federation and, 
 subject to these relinquishments, its sovereignty is su- 
 preme. One of the necessary attributes of sovereignty 
 is the protection of the sovereign power and the main- 
 tenance of the state organization."^^ Hence it would 
 seem that an injunction should not issue against a state 
 officer unless some special and direct injury to the plain- 
 tiff is shown.^^ It is clear that it should not issue to 
 
 45 Jones V. Eeed, 3 Wash. 57, 27 Pac. 1067. 
 
 46 Gibbs V. Green, 54 Miss. 592; Thompson v. Canal Fund Comnirs., 
 2 Abb. Pr. 248; City of Tacoma v. Bridges, 25 Wash. 221, 65 Pac. 
 186. See, also, Taylor v. Montreal Harbor Commrs., 17 Eap. Jud. 
 Que. C. S. 275. In Commissioners of Barber Co. v. Smith, 48 Kan. 
 331, 29 Pac. 565, the rule as to county officers is laid down as fol- 
 Iowb: "This court has always held that, before a private citizen can 
 be allowed to maintain an action of this character, he must allegis 
 and show some interest, personal and peculiar to himself, that is 
 not shared by or does not affect the general public; and it is not 
 enough that his damages are greater than those sustained by the.
 
 S81 INJUNCTION; PUBLIC OFFICEKS. i 327 
 
 restrain state oflScers from erecting a public building 
 at a place other than that prescribed by law, where no 
 special injury is shown and the burden of taxation is 
 not increased;*"^ nor to restrain a state grain inspector 
 from employing deputies under an unconstitutional 
 law, when this is not shown to cause any injury to the 
 plaintiff.^^ As in the case of purely municipal cor- 
 porations, however, the rules are not in harmony. In 
 Pennsylvania, for instance, it is held that the governor 
 may be enjoined from enforcing a law exempting a 
 railroad from taxation and thus increasing the burden 
 upon other tax-payers.^* 
 
 § 327. No Relief When, in Effect, Against State. — The 
 eleventh amendment to the federal constitution denies 
 to individuals the right to sue a state. Consequently, 
 when a bill for an injunction against a public officer is 
 in effect a suit against a state, and no statute authorizes 
 such suit, relief will be denied. In determining whether 
 the state is a party, the courts will look beyond the 
 parties to the record and decide according to the real 
 effect^* "Where it is manifest upon the face of the 
 
 general public, thus differing only in degree, but they must be differ- 
 ent in kind." 
 
 Under the New York statute, it is held that a tax-payer's suit can- 
 not be maintained against a state officer: Hutchinson v. Skinner, 21 
 Misc. Eep. 729', 49 N. Y. Supp. 360. 
 
 47 Sherman v. Bellows, 24 Or, 553, 34 Pac. 549; State v. Lord, 28 
 Or. 498, 43 Pac. 471, 31 L. B. A. 473; State v. Pennoyer, 23 Or, 205, 
 37 Pac. 906, 41 Pac. 1104, 25 L. E. A, 862. 
 
 48 Birmingham v, Cheetham, 19 Wash. 657, 54 Pac. 37. 
 
 49 Mott V. Pennsylvania E, Co., 30 Pa, St. (6 Casey) 9, 72 Am. Dec. 
 6G4. And apparently a tax-payer's suit against a state officer may 
 be maintained in Illinois: Burke v. Snively, 208 111. 328, 70 N. E. 
 327, 
 
 50 See Manchester Fire Ins. Co. v. Herriott, 91 Fed. 711. A good 
 illustration is found in suits to enjoin state officers from prosecut- 
 ing violators of state statutes. The state is said to be the real party
 
 S 327 EQUITABLE EEMEDIES. 682 
 
 record, that the defendants have no individual interest 
 in the controversy, and that the relief sought against 
 them is only in their official capacity as representatives 
 of the state, which alone is to be affected by the judg- 
 ment or decree, the question then arising whether the 
 suit is not substantially a suit against the state, is one 
 of jurisdiction."^^ ''It is not enough that the state 
 should have a mere interest in the vindication of her 
 laws, or in their enforcement as affecting the public at 
 large, or as they affect the rights of individuals or cor- 
 porations, but it must be an interest of value to her- 
 self as a distinct entity, — of value in a material sense. "^^ 
 In case of contracts, moreover, the acts of the officers 
 are wrongful only as they are considered to be the acts 
 of the state. As individuals, the officers are not capable 
 of committing a breach, for they are not parties to the 
 contract.^^ The state, therefore, is clearly the real 
 party in interest. 
 
 In accordance with these principles, it has been held 
 that an injunction will not issue against the executive 
 officer of a state in order to give relief to bondholders 
 who claim that the state has not lived up to its agree- 
 ment;^* nor to restrain a state officer from carrying 
 out a contract made in the name of the state.^^ But, 
 on the other hand, where officers acting under an un- 
 constitutional law will injure substantial property 
 rights, an injunction will not be refused merely because 
 
 in interest: Union Trust Co. v. Stearns, 119 Fed, 790; Arbuckle v- 
 Blackburn, 113 Fed, 616, 51 C, C. A. 122. 
 
 51 Ex parte Ayers, 123 U, S, 443, 8 Sup. Ct. 164, 31 L, ed. 216, 
 
 52 McWhorter v, Pensacola & A. E, R. Co,, 24 Fla, 417, 12 Am. St. 
 Rep. 220, 3 South. 129, 2 L. R A. 508. 
 
 53 Ex parte Ayers, 123 U. S, 443, 8 Sup. Ct. 164, 31 L. ed, 216, 
 
 54 Louisiana v. Jumel, 107 U. S. 711, 2 Sup. Ct. 128, 27 L. ed. 
 448. 
 
 65 Peeples v. Byrd, 98 Ga. 688, 25 S, E. 677.
 
 583 INJUNCTION; PUBLIC OFFICERS. S 328 
 
 they are state ojQBicers f^ and tlie same is true when they 
 threaten to act in excess of authority.'^'^ 
 
 § 328. Injunctions Against Executive Officers. — An in- 
 junction will not issue against an executive officer of 
 the government, nor against one acting under him, to 
 restrain the performance or execution of administrative 
 acts and orders within the scope of his authority. This 
 is based upon the principle which governs also the legal 
 remedy of mandamus. It would be contrary to our 
 theory of government for the judicial department to in- 
 terfere with the reasonable discretion of the executive. 
 Hence, courts of law and of equity refuse the remedies 
 of mandamus and injunction when they will have the 
 effect of controlling a reasonable discretion. Where no 
 question of discretion is involved, both law and equity 
 will interfere without hesitation. It is generally stated 
 •that mandamus may issue in a proper case to compel 
 the performance of a ministerial act. The correspond- 
 ing statement as to injunction is that it may issue in a 
 proper case to restrain an act in excess of the officer's 
 authority. 
 
 In accordance with these principles, it is held that an 
 injunction will not issue to restrain the Secretary of 
 the Interior or the Register of the Land Office from 
 canceling entries for land, receiving and acting upon ap- 
 plications and making surveys.^^ Likewise, no iujuuc- 
 
 56 Scott V. Donald, 165 U. S. 107, 17 Sup. Ct. 262, 41 L. ed. 648; 
 Pabst Brewing Co. v. Crenshaw, 120 Fed. 144 (state beer inspector 
 restrained from interfering with interstate commerce under author- 
 ity of state statute); Union Pac. E. Co. v. Alexander, 113 Fed. 347; 
 Starr v. Chicago R. I. & P. Ry, Co., 110 Fed. 3; Cobb v. Clough, 83 
 Fed. 604; President etc. of Yale College v, Sanger, 62 Fed, 177. And 
 Bee Simpson v. Union Stockyards Co., 110 Fed. 799. 
 
 57 Metropolitan Life Ins. Co. v. McNall, 81 Fed. 888. 
 
 68 Gaines v. Thompson, 74 U. S. (7 Wall.) 347, 19 L. ed. 62; City 
 of New Orleans v. Paine, 147 U. S. 261, 13 Sup. Ct. 303, 37 L. ed.
 
 § 329 EQUITABLE EEMEDIES. 584 
 
 tion will issue against the execution of an authorized 
 discretionary order of the Postmaster General in ex- 
 cluding certain matter from the mails.^^ The same 
 principle applies to the executive officers of a state.^° 
 
 On the other hand, where officers of the Interior De- 
 partment are about to make a resurvey or to do other 
 acts which under the circumstances do not rest in dis- 
 cretion, and some ground for equity jurisdiction ap- 
 pears, an injunction is proper.^^ Likewise, it is proper 
 to enjoin the enforcement of an order of the Postmaster 
 General excluding from the mails matter not author- 
 ized to be excluded ;^2 and to restrain a state railroad 
 commission from fixing railroad rates for interstate 
 commerce, in excess of authority. ^^ 
 
 § 329. Discretionary Acts — When a public officer is 
 vested with discretion, an injunction will not issue to 
 restrain acts coming within the discretionary power 
 unless fraud or corruption is shown, or it is clear that 
 
 162; Litchfield v. Eichards, 9 Wall. 577, 19 L. ed, 681; Kirwan v. 
 Murphy, 189 U. S. 35, 23 Sup, Ct. 599, 47 L. ed. 698. 
 
 59 Public Clearing-House v. Coyne, 194 U. S. 497, 24 Sup. Ct. 789, 
 48 L. ed. 1092; Enterprise Sav. Assn. v. Zumstein, 67 Fed. 1000, 15 
 C. C. A. 153, 37 U. S. App. 71. 
 
 60 Frost V. Thomas, 26 Colo. 222, 77 Am. St. Eep. 259, 56 Pac. 899; 
 Coleman v. Glenn, 103 Ga. 458, 68 Am. St. Eep. 108, 30 S. E. 297; 
 Mott V. Pennsylvania E. Co., 30 Pa. St. (6 Casey) 9, 92 Am. Dec. 664. 
 See, also, Delaware Surety Co. v. Layton (Del. Ch.), 50 Atl. 378. As 
 to the power of federal courts to enjoin the governor of a state, see 
 Davis V. Gray, 16 Wall. 203, 21 L. ed. 447. 
 
 61 Caldwell v. Eobinson, 59 Fed. 658; Noble v. Union Eiver Log- 
 ging Co., 147 U. S. 165, 13 Sup. Ct. 271, 37 L. ed. 123; Smith v. Eey- 
 nolds, 9 App. D. C. 261. 
 
 C2 American School of Magnetic Healing v. McAnnulty, 187 U. S. 
 94, 23 Sup. Ct. 33, 47 L. ed. 90. 
 
 63 Hanley v. Kansas City Southern E. Co., 187 U. S. 617, 23 Sup. 
 Ct. 214, 47 L, ed. 333. And it will likewise issue to prevent other in- 
 terference with interstate commerce by such a board: Southern Ey. 
 Co. V. Greensboro Ice & Coal Co., 134 Fed. 82.
 
 585 INJUNCTION; PUBLIC OFFICEES. { 329 
 
 the discretion has been abused. The distinction be- 
 tween discretionary and ministerial acts should be care- 
 fully noted, however, for if the act is of a ministerial 
 nature it may be freely enjoined. This distinction has 
 been explained in the preceding section. 
 
 According to the principle as stated, an injunction 
 will not issue to restrain a railroad or arbitration 
 commission from taking testimony as to rates and 
 earnings ;^^ nor to restrain commissioners appointed to 
 appraise and sell Indian lands from carrying out their 
 powers;®'^ nor to regulate the discretion of canal com- 
 missioners as to the amount of water to be used,^*^ nor 
 of commissioners appointed to condemn rights of way 
 as to the land to be taken ,®^ nor of prison commission- 
 ers as to the letting of contracts.^^ Likewise, it will 
 not be granted to restrain the exercise of a ferry fran- 
 chise on the ground that the officers erred in judgment 
 in granting it.** 
 
 Where, however, there is a clear abuse of discretion, 
 the court may interfere.^*^ Cases of this sort frequently 
 arise when state commissions attempt to lower the rates 
 of quasi public corporations. The officers are bound to 
 act within reason, and in such a manner that their ac- 
 
 64 New Orleans City & L. R. Co. v. State Board of Arbitration, 
 47 La. Ann. 874, 17 South. 418; Higginson v. Chicago, B & I. E. 
 Co., 102 Fed. 197, 42 C. C. A. 254. See, also, MeChord v. Cincinnati 
 etc. E. Co., 183 U. S. 483, 22 Sup. Ct. 165, 46 L. ed. 289. 
 
 65 Lane v. Anderson, 67 Fed. 563. 
 
 66 Cooper V. Williams, 4 Ohio (4 Ham.) 253, 22 Am. Dec. 745. 
 
 67 Pennsylvania E. Co. v. National Docks & N. J. J. C. Ey, Co., 56 
 Fed. 697. 
 
 6S Southern Min. Co. v. Lowe, 105 Ga. 352, 31 S. E. 191. 
 
 69 Hudspeth v. Hall, 113 Ga. 4, 84 Am. St. Eep. 200, 38 S. E. 358. 
 See the following miscellaneous cases where relief was denied: Soo- 
 field V. Perkerson, 46 Ga. 350; Henkel v. Millard, 97 Md. 24, 54 AtL 
 €57; Union Transp. Co. v. Bassett, 118 Cal. 604, 50 Pac. 754. 
 
 TO In general, see Shanks v. Pearson, 66 Kan. 168, 71 Pac. 252.
 
 § 330 EQUITABLE REMEDIES. 586 
 
 tion will not amount to confiscation. Therefore, when 
 state commissioners fix rates which are so unreason- 
 able that the property of the corporation is made of 
 little value, or which are so low that expenses and divi- 
 dends cannot be earned, courts of equity will interfere 
 by in j unction.'^ ^ A private individual, however, can- 
 not enjoin the enforcement of the rates on the ground 
 that they discriminate against him.'^^ 
 
 § 330. Suits by Officers Against Other Officers When the 
 
 state as plaintiff invokes the aid of a court of equity, 
 it is not exempt from the rules applicnble to ordinary 
 suitors; that is, it must establish a case of equitable 
 cognizance, and a right to the particular relief de- 
 manded.'^^ In some jurisdictions, however, local or 
 state officers are allowed injunctive relief in order to 
 restrain inferior or other officers from failing to prop- 
 erly perform the duties of their offices.'^* And a county 
 has been allowed an injunction to restrain a commis- 
 sioner of the general land office from re-establishing its 
 boundary.^ ^ 
 
 71 Smyth V. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819; 
 Prout V. Starr, 188 U. S. 537, 23 Sup. Ct. 398, 47 L. ed. 584; Southern 
 Pac. E. Co. V. Board of K. E. Commrs., 78 Fed. 236; Chicago & N. W. 
 K. Co. V. Day, 35 Fed. 866, 1 L. E. A. 744; Louisville & N. E. 
 Co. V. Brown, 123 Fed. 946; Western Union Tel. Co. v. Myatt, 98 
 Fed. 335; San Joaquin etc. Co. v. Stanislaus County, 90 Fed. 516; 
 Cottiiig V. Kansas City Stockyards Co., 79 Fed. 679. 
 
 72 Board of E. E. Commrs. v. Symns Grocer Co., 53 Kan. 207, 35 
 Pac. 217. 
 
 73 People V. Canal Board, 55 N, Y. 390; State v. Pennoyer, 23 Or. 
 205, 37 Pac. 906, 41 Pac. 1104, 25 L. E. A. 862; State v. Lord, 28 
 Or. 498, 43 Pac. 471, 31 L. E. A. 473. 
 
 74 Hornaday v. State, 62 Kan. 822, 62 Pac. 329; Catlin v. Christie, 
 15 Colo. App. 291, 63 Pac. 328. 
 
 75 Kaufman Co. v. McGaughey, 3 Tex. Civ. App. 655, 21 S. W. 261. 
 An opposite result was reached in Commrs. of Chatham Co. v. Thorne, 
 117 N. C. 211, 23 S. E. 184, on the ground that it waa within the 
 power of the legislature to change the boundary.
 
 587 INJUNCTION; PUBLIC OFFICERS. § 331 
 
 § 331. Elections. — An injunction will not issue, as a 
 general rule, for the purpose of restraining the hold- 
 ing of an election, or of directing or controlling the 
 mode in which, or of determining the rules of law in 
 pursuance of which, an election shall be held.'^^ An 
 election is a political matter, with which courts of 
 equity have nothing to do. Moreover, the effect of in- 
 terference in such matters might often result in the de- 
 struction of the government. This is especially so when 
 the relief is sought to prevent the holding of an elec- 
 tion. "The attempt to check the free expression of 
 opinion — to forbid the peaceable assemblage of the peo- 
 ple — to obstruct the freedom of elections — if success- 
 ful, would result in the overthrow of all liberty regu- 
 lated by law. The mere effort to assume such power is 
 dangerous to the rights of the citizen. If the courts 
 can dictate to the officers of the people that they shall 
 not hold an election from fear of some imaginary wrong, 
 then people and officers are entirely subservient to the 
 courts, and the consequences are too fearful to contem- 
 plate."^' Thus, an injunction will not issue to restrain 
 
 76 Fletcher v. Tuttle, 151 111. 41, 42 Am. St. Rep. 220, 37 N. E. 
 683, 25 L. R. A. 143; Morgan v. Wetzel County Court, 53 W. Va. 372, 
 44 S. E. 182. Nor will equity interfere to control a political party in 
 its management of a primary election: Winnett v. Adams (Neb.), 99 
 N. W. 681. 
 
 77 Walton V. Beveling, 61 111. 201. In some jurisdictions, however, 
 these considerations are not controlling. In Wisconsin, an injunc- 
 tion will issue to restrain the Secretary of State from calling an elec- 
 tion when the apportionment act is illegal: State v. Cunningham, 81 
 Wis. 440, 51 N. W. 724, 15 L. E. A. 561; State v. Cunningham, 83 Wis. 
 90, 35 Am. St. Rep. 27, 53 N. W. 35, 17 L, R. A. 145. In England, 
 under the Judicature Act, authorizing the issuance of injunctions 
 to protect any right which could be asserted either at law or in equity, 
 an injunction will issue to restrain an election to office: Richardson 
 V. Michby School Board, [1893] 3 Ch. 510; Aslatt v. Corporation of 
 Southampton, 16 Ch. D. 143; North London Ry. Co. v. Great Northern 
 Ry. Co., 11 Q. B. D. 30. In the following cases injunctions were 
 granted to restrain the calling of county seat elections: Solomon v.
 
 § 332 EQUITABLE EEMEDIES. 588 
 
 the holding of an election although it is alleged that it 
 is without authority of law,"''^ or that the act authoriz- 
 ing it or providing for apportionment is unconstitu- 
 tionalJ* And the mere fact that the cost of the elec- 
 tion will have to be borne by the state and indirectly 
 by the tax-payers, is no ground for an injunction at the 
 relation of a tax-payer, for the injury is too triflin 
 
 80 
 
 § 332. Same — Continued. — Likewise, an injunction will 
 not be issued to forbid any of the steps in the proceed- 
 ings.^^ Thus, it is not proper to restrain officers from 
 returning a list of voters on the ground that it is il- 
 legal ;^2 nor to restrain the county clerk from putting 
 on the ballot the candidates of one faction under the 
 party designation;^^ nor to compel election officers to 
 
 Fleming, 34 Neb. 40, 51 N. W. 304; Streissguth v. Geib, 67 Minn. 360, 
 6f» N. W. 1097. For other instances of relief granted, see Cascaden v. 
 City of Waterloo, 106 Iowa, 673, 77 N. W. 333; City of Macon v. 
 Hughes, 110 Ga. 795, 36 S. E. 247; Layton v. City of Monroe, 23 South. 
 99, 50 La. Ann. 121. 
 
 78 Walton V. Beveling, 61 111. 201; Darst v. People, 62 111. 306; Har- 
 ris V. Schryock, b2 111. 119; Kerr v. Riddle (Tex. Civ. App.), 31 S. W. 
 328. 
 
 79 Fletcher v. Tuttle, 151 111. 41, 42 Am. St. Eep. 220, 37 N. E. 683, 
 25 L. R. A. 143; Fesler v. Brayton, 145 Ind. 71, 44 N. E. 37, 32 L. E. 
 A. 578. But see contra, State v. Cunningham, 81 Wis. 440, 51 N. W. 
 724, 15 L. E. A. 561; State v. Cunningham, 83 Wis. 90, 35 Am. St. Eep. 
 27, 53 N. W. 35, 17 L. E. A. 145; Gile v. Stegner (Minn.), 100 N. W. 
 101. 
 
 80 State V. Thorson, 9 S. D. 149, 68 N. W. 202, 33 L. E. A. 582. 
 
 81 In general, see People v. Barrett, 203 HI. 99, 96 Am. St. Eep. 
 297, 67 N. E. 742; Anthony v. Burrow, 129 Fed. 783. 
 
 82 Hardesty v. Taft, 23 Md. 513, 87 Am. Dec. 584; Ex parte 
 Lumsden, 41 S. C. 553, 19 S. E. 749. 
 
 83 State V. Johnson, 18 Mont. 556, 46 Pac. 440. See, also, Mayor 
 etc. of Annapolis v. Gadd (Md.), 57 Atl. 941. But it is held in 
 Montana, following the Wisconsin cases, that an injunction will 
 issue to restrain the county clerk from printing an unauthorized 
 ticket on the ballot. Thus, an injunction has been awarded against 
 printing names of candidates nominated by petition under a party
 
 589 INJUNCTION; PUBLIC OFFICERS. § 333 
 
 admit certain representatives to the polling places ;^^ 
 nor to prevent the publication of the result as required 
 by law,^** nor the canvassing of the vote,^^ nor the cer- 
 tification of the result to the governor,^^ nor the de- 
 livery of the sealed returns to the speaker of the lower 
 house of the legislature.*^ And a Secretary of State 
 will not be enjoined from publishing proposed amend- 
 ments to the state constitution, although such amend- 
 ments, if adopted, might be invalid.*^ 
 
 § 333. Title to Public Office — It is a principle of uni- 
 versal application that an injunction will not issue 
 when its object is to try title to public office.'*^ The 
 reasons for this rule are that such cases involve politi- 
 cal rights, with which equity has nothing to do, and 
 that generally there is an adequate remedy at law. In 
 case of contested elections this legal remedy is often of 
 
 designation: State v. Moran, 24 Mont. 433, 63 Pac. 390; State v. 
 Eeek, 18 Mont. 557, 46 Pac. 438; State v. Eotwitt, 18 Mont. 502, 
 46 Pac. 370; State v. Tooker, 18 Mont. 540, 46 Pac. 530, 34 L. E. A. 
 315; State v. Johnson, 18 Mont. 548, 46 Pac. 533; State v. Bailey, 
 18 Mont. 554, 46 Pac. 1116; State v. Fisher, 18 Mont. 560, 46 Pac. 
 1117. 
 
 84 Weaver v. Toney, 107 Ky. 419, 54 S. W. 732, 50 L. R. A. 105. 
 
 86 Eobinson v. Wingate (Tex. Civ. App.), 80 S. W. 1067; Ex 
 parte Mayes (Tex.), 44 S. W. 831; Ogburn v. Elmore (Ga.), 48 
 S. E. 702. But see dictum in Sweeney v. Webb (Tex. Civ. App.), 
 76 S. W. 766. Compare L. Epstein & Son v. Webb (Tex. Civ. App.), 
 75 S. W. 337. 
 
 88 Willeford v. State, 43 Ark. 63; Weil v. Calhoun, 25 Fed. 865; 
 State V. Carlson (Neb.), 101 N. W. 1004; Mendenhall v. Denham, 
 35 Fla. 250, 17 South. 561. 
 
 87 Alderson v. Commissioners, 32 W. Va. 640, 25 Am. St. Rep. 
 840, 9 S. E. 868, 5 L. E. A. 334. 
 
 88 Fleming v. Guthrie, 32 W. Va. 1, 25 Am. St. Rep. 792, 9 S. E. 
 23, 3 L. R. A. 53; Smith v. Myers, 109 Ind. 1, 58 Am. Rep. 375, 9 
 N. E. 692. 
 
 89 People V. Mills, 30 Colo. 262, 70 Pac. 322. 
 
 »o In general, see Beebe v. Robinfion, 52 Ala. 66; Moulton t. Beid, 
 54 Ala. 320.
 
 I 334 EQUITABLE KEMEDIES. 590 
 
 statutory origin, but in most cases the relief by the com- 
 mon-law writ of quo warranto is ample. 
 
 It may be laid down as a general rule that a claim- 
 ant out of possession will not be awarded an injunc- 
 tion against the party in possession of a public offiee.^^ 
 In such a case the only question involved is the title to 
 the office; and often the effect of an injunction would 
 be to render an office vacant, to the injury of the public. 
 Likewise, it will not be issued when both parties are 
 out of possession f^ nor when the suit is brought against 
 the appointing body and in effect is for reinstatement.*^^ 
 And the same result is reached although the application 
 for relief is made in the name of the state at the rela- 
 tion of the claimant.^* 
 
 § 334. Same — Continued. — For the same reasons an in- 
 juuctlou will not issue at the suit of a member of the 
 appointing body, to restrain a ijerson alleged to have 
 
 91 Cochran v. McCleary, 22 Iowa, 75; Neeland v. State, 39 Kan. 
 154, 18 Pac. 165; State v. Eost, 47 La. 53, 16 South. 776; Washington 
 Co. Commrs. v. Board of County School Comnirs., 77 Md. 283, 26 
 Atl. 115; Arnold v. Henry, 155 Mo. 48, 78 Am. St. Eep. 556, 55 
 S. W. 1089; People v. Draper, 24 Barb. 265; Patterson v. Hubbs, 
 65 N. C. 119; State v. Wolfenden, 74 N. C 103; Harding v. Eichinger, 
 '57 Ohio St. 371, 49 N. E. 306; Hagner v. Heyberger, 7 Watts & S. 
 
 104, 42 Am. Dec. 220; Gilroy'a Appeal, 100 Pa. St. 5; Kilpatrick 
 V. Smith, 77 Va. 347; Mullen v. City of Tacoma, 16 Wash. 82, 47 
 Pac. 215; Huels v. Hahn, 75 Wis. 468, 44 N. W. 507; State v. Eice, 
 67 S. C. 236, 45 S. E. 153; Brower v. Kantner, 190 Pa. St. 182, 43 
 Atl. 7; McAllen v. Rhodes, 65 Tex. 348. But see Ehlinger v. Ban- 
 kin, 9 Tex. Civ. App. 424, 29 S. W. 240. 
 
 92 State V. Host, 47 La. Ann. 53, 16 South. 663; People v. Dis- 
 trict Court of Lake County, 29 Colo, 277, 93 Am. St, Rep. 61, 68 Pac. 
 224. 
 
 93 Callan v. Fire Dept. Commrs., 45 La. Ann. 673, 12 South. 834; 
 McNiece v, Sohmer, 29 Misc. Eep. 238, 61 N. Y. Supp. 193, 
 
 94 State V. Herreid, 10 S, D. 16, 71 N. W. 319; State v. Alex- 
 ander, 107 Iowa, 177, 77 N. W. 841; State v. Wolfenden, 74 N. C. 
 103; State v. Duffel, 32 La. Ann. 649.
 
 591 INJUNCTION; PUBLIC OFFICERS. § 335 
 
 been illeji^ally appointed ;^^ nor at the suit of a tax-payer 
 or elector f^ nor at the suit of a local body or muucipal 
 corporation.^^ 
 
 Again, it will not issue in aid of an election contest 
 to restrain canvassing of the votes,^^ the issuance of a 
 certificate of election,®^ nor to determine which party 
 is entitled to the office.^^*^ Nor will it issue to restrain 
 the issuance of a commission to a person alleged to be 
 illegally appointed.^*'^ And the fact that an election 
 authorizing the change of a township organization is 
 illegal is not sufficient to warrant an injunction against 
 the appointment of commissioners, for the remedy by 
 quo warranto after the office is assumed will be ade- 
 quate.^ ''^ 
 
 § 335. Possession of Office Protected — While the title to 
 public office will not be determined in an injunction 
 proceeding the possession of a de facto officer will be 
 protected against interference of an adverse claimant 
 whose title is in dispute, until the latter shall establish 
 
 95 Goldsworthy v. Boyle, 175 Pa. St. 246, 34 Atl. 630; Updegraf 
 V. Crans, 47 Pa. St. 103. 
 
 86 State V. Aloe, 152 Mo. 466, 54 S. W. 494; State v. Van Beek, 
 87 Iowa, 569, 43 Am. St. Eep. 397, 54 N. W. 525; Fahy v. John- 
 stone, 21 App. Div. 154, 47 N. Y. Supp. 402; Brumlcy v. Boyd, 28 
 Tex. Civ. App. 164, 66 S. W. 874. 
 
 97 State V. Withrow, 154 Mo. 397, 55 S. W. 460; District Tp. v. 
 Barrett, 47 Iowa, 110; District Tp. v. Myles, 109 Iowa, 541, 80 N. W. 
 544. 
 
 98 Ex parte Wimberley, 57 Miss. 437; Wilder v. Underwood, 60 
 Kan. 859, 57 Pac. 965. 
 
 99 Coleman v. Glenn, 103 Ga. 458, 68 Am. St. Eep. 108, 30 S. E. 
 297; Ward v. Sweeney, 106 Wis. 44, 82 N. W. 169; People v. Mc- 
 Clees, 20 Colo. 403, 38 Pac. 468, 26 L. E. A. 646. 
 
 100 Dickey v. Eeed, 78 HI. 261; Updegraf v. Crans, 47 Pa. St. 103. 
 
 101 Coleman v. Glenn, 103 Ga. 458, 68 Am. St. Eep. 108, 30 S. E. 
 297. 
 
 102 Fort V. Thompson, 49 Neb. 772, 69 N. W. 110,
 
 i 335 EQUITABLE EEMEDIES. 592 
 
 his title at law.^°' In such a case the right to the office 
 is not considered. "The welfare and good order of so- 
 ciety and government require that those engaged in 
 the discharge of public duties should not be disturbed 
 by claimants whose right to discharge their functions 
 is as yet uncertain. Equity will protect the possession 
 of the incumbents from any unlawful intrusion. The 
 public welfare requires that such protection should not 
 be left to the totally inadequate remedy of an action 
 for trespass."^°^ But in order to warrant this relief 
 it must appear that there has been some act or threat 
 indicating an intent to interfere with possession. If 
 this is not present the injunction will be refused, for 
 only the title to office is involved.^"^ For the same rea- 
 son, a party in possession cannot enjoin the appointing 
 power from naming his successor on the ground that 
 the incumbent fears that the new appointee may in- 
 terfere with his possession. ^•'^ And in all cases the 
 
 103 Ehodes v. Driver, 69 Ark. 606, 86 Am. St. Kep. 215, 65 S. W. 
 106; State v. Superior Court of Snohomish County, 17 Wash. 12, 61 
 Am. St. Eep. 893, 48 Pac. 741; Appeal of Town Council (Pa.), 15 Atl. 
 730; Parsons v. Durand, 150 Ind. 203, 49 N. E. 1047; City of Hunting- 
 ton V. Cast, 149 Ind. 255, 48 N. E. 1025; Guillotte v. Poincy, 41 La. 
 Ann. 333, 6 South. 507, 5 L. E. A. 403; Poyntz v. Shackelford, 107 Ky. 
 546, 54 S. W. 855; Hopkins v. Swift, 100 Ky. 14, 37 S. W. 155; Brady 
 V. Sweetland, 13 Kan. 41; Palmer v. Foley, 45 How. Pr. 110; Kerr v. 
 Trego, 47 Pa. St. 292; Eeemelin v. Mosby, 47 Ohio St. 570, 26 N. E, 
 717; Wheeler v. Fire Commrs., 46 La. Ann. 731, 15 South. 179; Stenglein 
 T. Beach, 128 Mich. 440, 8 Detroit Leg. N. 721, 87 N. W. 449. But 
 sec Osgood V. Jones, 60 N. H. 543. In such an action the title to the 
 office cannot be tried: Scott v. Sheehan, 145 Cal. 691, 79 Pac. 353. 
 
 104 City of Huntington v. Cast, 149 Ind. 255, 48 N. E. 1025. 
 
 106 Jones V. Commissioners of Granville, 77 N. C. 280; State v. 
 Judge, 48 La. Ann. 1501, 21 South. 94. 
 
 106 Eeemelin v. Mosby, 47 Ohio St. 570, 26 N. E. 717j Delahanty v, 
 Warner, 75 111. 185, 20 Am. Eep. 237.
 
 693 INJUNCTION; PUBLIC OFFICEEa S 336 
 
 court should require the strongest showing before in- 
 terfering.^ °'^ 
 
 It has been held that while it is proper for the court 
 to take cognizance of a case where the facts upon which 
 the title to the office depends are disputed and uncer- 
 tain, "it would seem anomalous for a court of equity 
 to exercise its preventive jurisdiction in favor of one 
 who, upon the undisputed facts had no right to re- 
 tain possession of an office against one who, upon the 
 equally undisputed facts, was entitled to it."^"^ 
 
 § 336. Payment of Salaries. — An injunction will not 
 issue to restrain the payment of salary or fees to a 
 de facto officer whose title is questioned.^'^^ "The pub- 
 lic welfare demands that a public office be filled by 
 some person; and if compensation is withheld from the 
 incumbent pending litigation over his right thereto, 
 much of the inducement to an efficient discharge of the 
 duties of the position is withdrawn, and in many cases 
 the ability to continue the discharge of such duties pre- 
 vented. Equity, therefore, will not jeopardize the due 
 performance of an important public trust in order 
 merely to secure to one of the claimants the fees and 
 emoluments pertaining to it, in the event he should 
 finally succeed in establishing his claim. "^^"^ And this 
 rule prevails although it may be perfectly apparent that 
 the incumbent is not legally entitled to the position.^ ^^ 
 
 107 Goldman v. Gillespie, 43 La. Ann. 83, 8 South. 880; Ward 
 V. Sweeney, 106 Wis. 44, 82 N. W. 169. 
 
 108 School District v. Waseca Co., 77 Minn. 167, 79 N. W. 668. 
 
 109 Greene v. Knox, 175 N. Y. 432, 67 N. E. 910; Tappan v. Gray, 9 
 Paige, 507; Stone v. Wetmore, 42 Ga. 601; McAllen v. Ehodes, 66 
 Tex. 348; Lawrence v. Leidigh, 58 Kan. 676, 50 Pac. 889; Burgess v. 
 Davis, 138 IlL 578, 28 N. E. 817. See, also, Colton v. Price, 50 Al».. 
 
 110 Lawrence v. Leidigh, 58 Kan. 676, 50 Pac. 889. 
 
 111 Tappan v. Gray, 9 Paige, 507. 
 
 Equitable Eemedies, Vol. I — 38
 
 § 337 EQUITABLE EEMEDIES. 6»4 
 
 In case the claimant succeeds at law, he may recover 
 from the incumbent the amount of the salary or fees 
 collected; but the mere fact that the incumbent is in- 
 solvent and cannot therefore respond at law is not suf- 
 ficient to warrant equitable relief.^ ^^ 
 
 § 337. Removal of Officers. — An officer in possession 
 cannot, however, enjoin other officers from removing 
 him.^^^ The right to an office is said not to be a prop- 
 erty right. An action to enjoin removal raises a polit- 
 ical question as to the title to the office, for only by 
 determining the right can the court decide the ques- 
 tion. Hence this line of cases is distinguishable from 
 
 112 Lawrence v. Leidigh, 58 Kan. 676, 50 Pac. 889, 
 
 113 In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. ed. 402; White 
 V. Berry, 171 U. S. 366, 18 Sup. Ct. 917, 43 L. ed. 199; Page v. Moffett, 
 85 Fed. 38; Couper v. Smyth, 84 Fed. 757; Morgan v. Nunn, 84 Fed. 
 551; Dudley v. James, 83 Fed. 345; Carr v. Gordon, 82 Fed. 373; Taylor 
 V. Kercheval, 82 Fed. 497; Palmer v. Board of Education, 47 App. 
 Div. 547, 62 N. Y. Supp. 485; Muhler v. Hedekin, 119 Ind. 481, 20 N. 
 E. 700; Hcffran v. Hutchins, 160 111. 550, 52 Am. St, Rep. 353, 43 N. 
 E. 709 (affirming 56 111. App. 581); Marshall v. Board of Managers, 
 201 111. 9, 66 N. E, 314; Cozart v, Fleming, 123 N. C. 547, 31 S. E. 822; 
 Howe V. Dunlap, 12 Okla. 467, 72 Pac. 365; Eiggins v, Thompson, 30 
 Tex, Civ, App. 242, 70 S. W, 578. 
 
 And it follows that a mandatory injunction will not issue to com- 
 pel reinstatement: McNiece v. Sohmer, 29 Misc. Rep. 238, 61 N, Y, 
 Supp. 193. It has been held that an injunction will not issue to 
 restrain city officers from recognizing the new appointee: Howe v. 
 Dunlap, 12 Okla. 467, 72 Pac. 365, 895, 
 
 There is a slight dissent from the rule of the text. In Armatage v. 
 Fisher, 74 Hun, 167, 26 N. Y. Supp. 364 (affirming 4 Misc. Rep. 315, 
 24 N. Y. Supp, 650), it was held that a president of a city council 
 might enjoin his colleagues from removing him without authority 
 from his position as president j and in Stahlhut v. Bauer, 51 Neb. 64, 
 70 N. W, 496, it was held that an injunction will issue to restrain a 
 citv council from removing a mayor when it has absolutely no jurisdic- 
 tion in the matter. And in Aslatt v. Corporation of Southampton, 
 L. R, 16 Ch. D. 143, the relief was granted under the "just and con- 
 venient" section of the .Judicature Act,
 
 595 INJUNCTION; PUBLIC OFFICERS. § 337 
 
 that in which the injunction is granted to prevent in- 
 trusion pending dispute. Moreover, the courts hesitate 
 to interfere with the executive branch of the govern- 
 ment in matters affecting the performance of its func- 
 tions. 
 
 In recent years the federal courts have been called 
 upon frequently to restrain the removal of officers 
 whose tenure is supposed to be protected by civil ser- 
 vice rules. But it has been held, with one or two ex- 
 ceptions, that such relief is not proper.^ ^^ In some in- 
 stances the decisions are rested on the ground that the 
 regulations as to removal are mere rules of the execu- 
 tive, and that therefore there is no vested right to pro- 
 tect. But generally, the judges have come back to the 
 fundamental principle, and have placed their decisions 
 squarely upon the ground that equity has no jurisdic- 
 tion over political matters. 
 
 Since the court will not enjoin the executive from 
 removing an officer, it follows as a matter of course that 
 
 114 White V. Berry, 171 U. S. 366, 18 Sup. Ct. 917, 43 L. ed. 199; 
 Page V. Moffett, 85 Fed. 38; Couper v. Smyth, 84 Fed. 757; Morgan 
 V. Nunn, 84 Fed. 551; Carr v, Gordon, 82 Fed. 373; Taylor v. Kerch- 
 eval, 82 Fed. 497. In Priddie v, Thompson, 82 Fed, 186, and Butler 
 V. White, 83 Fed. 578, the opposite conclusion was reached. Speak- 
 ing of an officer as entitled to the protection of equity, Jackson, J., 
 in the latter c'ase said: "Has not a person who holds and is in posses- 
 sion of an office to which there is a fair salary attached, to remunerate 
 him for his services, a right to the protection of the law to prevent 
 an injury to him by the doubtful assertion of the rights of another 
 as to hia office? Has he not a material interest in the possession of 
 the office and the salary attached to it? If he has such an interest 
 in the office and emoluments, is there not a right which should be 
 recognized and protected by the law in the employment of it? The 
 fact that another party desires and seeks the office is evidence of its 
 value to him, and, if it is valuable to the one seeking it, surely it 
 must be to the one holding it." "Equity alone furnishes that 
 remedy, and, if this remedy does not exist, then there is a case of an 
 alleged wrong without a remedy."
 
 I 338 EQUITABLE EEMEDIES. 696 
 
 it will not enjoin a trial on charges preferred."' And 
 this rule will be adhered to although it is alleged that 
 the body of triers is prejudiced and will abuse its dis- 
 cretion."® 
 
 Upon the same principle, the enforcement of a munic- 
 ipal ordinance will not be enjoined merely on the 
 ground that it will deprive the complainant of his 
 office."^ 
 
 § 338. Action of De Facto Officers. — An injunction will 
 not issue to restrain de facto public officers from per- 
 forming certain acts on the ground that they are power- 
 less because not legally qualified."® Where, however, 
 a legislative body, by the vote of persons not legally en- 
 titled, directs an officer to do an act which will be valid 
 only if the authorization is proper, an injunction will 
 issue against the performance. Thus, where a board of 
 supervisors, by a vote in which a person not legally en- 
 titled to office had the deciding voice, ordered the clerk 
 to submit the question of changing a county seat to the 
 electors, an injunction was allowed."' 
 
 115 White V. Wahlenberg, 113 Iowa, 236, 84 N. W. 1026; Cox v. 
 Voores, 55 Neb. 34, 75 N. W. 35. 
 
 116 Cox V. Moores, 55 Neb. 34, 75 N. W. 35. 
 
 117 Sheridan v. Colvin, 78 HI. 237. 
 
 118 Graeff v. Felix, 200 Pa. St. 137, 49 AtL 758; Hardesty ▼. Taft, 
 28 Md. 513, 87 Am. Dec. 584. 
 
 lie Williams v. Boynton, 147 N. Y. 426, 42 N. E. 184; Buck v. Rt«- 
 ^ersJd, 21 Mont. 482, 54 Pae. 942.
 
 597 
 
 INJUNCTION; MUNICIPAL COEPOEATIONS. S 339 
 
 CHAPTER XVIIL 
 
 INJUNCTIONS AGAINST MUNICIPAL CORPORA^ 
 TIONS AND THEIR OFFICERS. 
 
 ANALYSIS. 
 
 SS 33'9-343. Limitations on the exercise of the remedy. 
 
 § 339. Injunction agaiLst legislative acts — Cases examined* 
 
 { 340. Same — Injunctions generally refused. 
 
 § 341. Same — Exceptions to the general rule. 
 
 § 342. Second limitation; acts within discretionary powers not 
 interfered with. 
 
 § 343. No injunction to test the validity of municipal organ* 
 ization. 
 2§ 344-353. Tax-payers' suits. 
 
 § 344. General principle. 
 
 § 345. Rationale of the doctrine. 
 
 § 346. New York rule. 
 
 S 347. The rule in Massachusetts. 
 
 § 348. The rule in Ohio. 
 IS 349-353. Illustrations of the general principlew 
 
 § 349. Municipal aid bonds. 
 
 i 350. Injunctions against exceeding constitutional or stattitory 
 limits of indebtedness. 
 
 I 351. Awarding contracts — "Lowest bidder" — Discriminating 
 in favor of union labor. 
 
 f 352. Injunctions against removal of county seats. 
 
 § 353. Miscellaneous illustrations. 
 
 S 354. Eelief against ordinances injuring the individual in ft 
 capacity other than that of tax-payer. 
 
 § 355. Injunctions against wrongful acts in generaL 
 
 § 339. Limitations on the Exercise of the Remedy — In- 
 junctions Against Legislative Acts; Cases Examined.^ — "Has 
 equity the power to enjoin the passage of ordinances, 
 
 1 The opinion of Magruder, J., in Stevens v. St, Mary's Training 
 School, 144 111, 336, 36 Am. St, Eep, 438, 32 N. E. 962, 18 L. E. A. 
 832, 36 Cent. L. J. 275, 27 Am, Law Eev, 618, contains by far
 
 5 339 EQUITABLE REMEDIES. 598 
 
 bj-laws. resolutions, and orders by municipal corpora- 
 tions, or is its power confined to the issuance of in- 
 junctions against the enforcement and execution of such 
 ordinances, by-laws, resolutions, and orders, after the 
 same have been passed? .... There are cases which 
 hold, or seem to hold, that where a municipal corpora- 
 tion is about to pass a resolution or ordinance which 
 is void, as being ultra vires, a court of chancery will 
 enjoin it from so doing.^ In none of the cases [just] 
 cited, except the first four, was the question now under 
 consideration expressly passed upon, but the facts 
 stated in the opinions seem to warrant the conclusion 
 that injunctions were . sustained against the corporate 
 action of the municipalities, as distinguished from the 
 action of agents or officers proceeding under their or- 
 ders. In the New York cases it was held that a court 
 of chancery could enjoin the board of aldermen of a city 
 from pasi^ing an ordinance to construct a railwa^^ in 
 one of the streets; t'hat municipal corporations are 
 creatures of limited powers in the appropriation of the 
 
 the most thorough examination of this question on the authorities, 
 that has come to the present writer's attention; I have, therefore, 
 made it the basis of this and the two following sections. 
 
 2 "Among such cases may be mentioned the following: Davia v. 
 Mayor etc., 1 Duer (N. Y.), 451; People v. Sturtevant, 9 N. Y, 263, 59 
 Am. Dec. 536; Davia v. Mayor, 14 N. Y. 506, 67 Am. Dec. 186; Spring 
 Valley Waterworks v. Bartlett, 16 Fed. 615; Town of Jacksonport v. 
 Watson, 33 Ark. 704; State v. Commissioners, 39 Ohio St. 58; Page v. 
 Allen, 58 Pa. St. 338, 98 Am, Dec. 272; Follmer v. Nuckolls Co., 6 
 Neb. 204; Peter v. Prettyman, 62 Md. 566; Patton v. Stephens, 14 
 Bush, 324; Board of Education v. Arnold, 112 111. 11; Spilman v. City 
 of Parkersburg, 35 W. Va. 605, 14 S. E. 279; City of Valparaiso v. 
 Gardner, 97 Ind. 1, 49 Am. Eep. 416; City of Springfield v, Edwards, 
 84 111. 626; Howell v. City of Peoria, 90 111. 104." See, also, People 
 v. Dwyer, 90 N. Y. 402, holding that "whether the act enjoined was 
 or was not legislative or discretionary, and if so, whether other 
 facts still justified the interposition of equity, were proper subjects 
 for the consideration of the trial court whose error, if any, could 
 only be corrected by appeal."
 
 599 INJUNCTION; MUNICIPAL COEPOKATIONS. § 399 
 
 funds of the people; that when they attempt to appro- 
 priate such funds to purposes not authorized by their 
 charters or by positive law, whether it be done by reso- 
 lution, ordinance, or under the form of legislation, their 
 acts are void and that, while courts will not attempt 
 to control their discretion, yet if, under pretence of 
 exercising such discretion, they threaten or are about 
 to do what amounts to a gross abuse of power, to the 
 injury and in fraud of the rights of individuals and the 
 public, the courts will interfere to prevent the threat- 
 ened injury. But later decisions in New York, some of 
 which are referred to hereafter, have taken a different 
 view, refusing to follow the earlier cases above men- 
 tioned, as going too far in the direction of subjecting 
 the legislative and political powers of municipal bodies 
 to the control of the courts.^ In Spring Valley Water- 
 works V. Bartlett, supra [in note 2], an injunction 
 against the mayor and supervisors of San Francisco, 
 restraining them from passing an ordinance to fix the 
 price of water furnished to the city, was sustained, 
 over the objection that the defendants were a legisla- 
 tive body, endowed with legislative powers, to be exer- 
 cised with absolute discretion ; and it was held that the 
 board of supervisors of a municipal corporation will 
 be enjoined from passing an ordinance which is not 
 within the scope of their powers, when its passage will 
 work an irreparable injury. The Bartlett case, how- 
 ever, seems to have been overruled by the later case of 
 Alpers V. San Francisco, supra [in note 3].^ The last 
 
 3 "Alpers V. San Francisco, 12 Saw. 631, 32 Fed. 503." 
 
 4 It is hardly accurate to say that the Bartlett case was overruled 
 by the Alpers case. Sawyer, J., who delivered the opinion in the 
 Bartlett case, concurred in Mr. Justice Field 's opinion delivered in the 
 Alpers case, with the understanding that the decision in the prior 
 case was not thereby overruled. ' ' I am not prepared to say, ' ' re- 
 nnarks Judge Sawyer (32 Fed. 510), "that the court can, in no in-
 
 § 339 EQUITABLE KEMEDIES. 600 
 
 fo*ur cases above cited [in note 2] .... are cases 
 where cities were enjoined from incurring indebtedness 
 in excess of the constitutional limit, or from entering 
 into contracts which would involve such excess of in- 
 debtedness. But in these cases the point to which at- 
 tention was more especially directed was the meaning 
 of the word 'indebtedness,' and what constitutes a 'debt' 
 within the meaning of the constitution; and it is not 
 altogether clear that 'incurring indebtedness' does not 
 refer as well to the enforcement as to the passage of cor- 
 porate resolutions. 
 
 "A large number of the decisions which uphold the 
 right of equity to interfere with the action of municipal 
 corporations when such action is in excess of their legal 
 powers will be found, on examination, to be based upon 
 facts which show that the injunctions were issued 
 against the officers or agents attempting to execute or 
 enforce corporate resolutions, ordinances, by-laws, or 
 orders."^ .... 
 
 stance, or under no circumstances, enjoin the legislative department 
 of a municipal corporation from passing an ordinance, which is wholly 
 
 •without its constitutional, or lawful power to enact I do not 
 
 understand, that the limitation in the opinion of the circuit justice is 
 broader in its scope, than the principle herein stated." "In what we 
 have said of the want of authority in courts of equity over the action 
 of a municipal corporation," says Mr. Justice Field (32 Fed. 507), "we 
 confine ourselves strictly to such action as is purely legislative, upon 
 a matter which is, by its charter or law, made subject to its legislative 
 discretion." 
 
 B Citing New London v. Brainard, 22 Conn. 553; Webster v. Town 
 of Harwinton, 32 Conn. 131; The Liberty Bell, 23 Fed. 843; Harney v. 
 Indianapolis etc. Eailroad Co., 32 Ind. 244; Davenport v. Klein- 
 schmidt, 6 Mont. 502, 13 Pac. 249; Willard v. Comstoek, 58 Wis. 565, 
 46 Am. Kep. 657, 17 N. W. 401; Lynch v. Eastern Ey. Co., 57 Wis. 430, 
 15 N. W. 743, 825; Place v. City of Providence, 12 E. I. 1; Austin v. 
 Coggeshall, 12 E. I. 329, 34 Am. Eep. 648; Sherman v, Carr, 8 E. I. 431; 
 Newmeyer v. Missouri etc. Ey. Co., 52 Mo. 81, 14 Am. Eep. 394; Oster- 
 hout V. Hyland, 27 Hun, 167; Mayor etc. of Baltimore ▼. Gill, 31 Md. 
 375; Merrill v. Plainfield, 45 N. H. 126; Hospers v. Wyatt, 63 Iowa,
 
 €01 INJUNCTION; MUNICIPAL COEPORATIONS. S 340 
 
 § 340. Same; Injunction Generally Refased. — "But we 
 are not limited, in the investigation of this subject, to 
 an examination of the facts of the cases which, while 
 sustaining the general power of equity to restrain the 
 action of municipal bodies, do not make any special 
 reference to the mode of exercising such power. There 
 are many decisions which hold, in express and definite 
 terms, that 'the courts will not enjoin the passage of 
 unauthorized ordinances, and will ordinarily act only 
 when steps are taken to make them available."^ .... 
 The weight of authority, and the tendency of the more 
 recent decisions, are in favor of the position, that the 
 restraining power of the courts should be directed 
 against the enforcement, rather than the passage, of 
 unauthorized orders and resolutions or ordinances by 
 municipal corporations.^ In Alpers v. San Francisco, 
 
 264, 19 N. W. 204; Eoberts v. Mayor etc. of New York, 5 Abb. Pr. 41; 
 Scliumm V. Seymour, 24 N. J. Eq. 143; List v. Wheeling, 7 W. Va. 501; 
 Rutz V. Calhoun, 100 111. 392; McCord v. Pike, 121 111. 288, 2 Am. St. 
 Eep, 85, 12 N. E. 259; English v. Smock, 34 Ind. 115, 7 Am. Rep. 215; 
 City of Madison v. Smith, 83 Ind. 502; Sackett v. City of New Albany, 
 88 Ind. 473, 45 Am. Rep. 467; Wright v. Bishop, 88 111. 302; Sherlock 
 V. Village of V^innetka, 59 111. 389; Crampton v. Zabriskie, 101 U. S. 
 601, 25 L ed, 1070. The learned justice then proceeded to examine in 
 some detail the facts in the leading case of Crampton v. Zabriskie, 
 supra, in Sherlock v. Village of Winnetka, and in Coltorn v. Hanchett, 
 13 111. 615, Perry v. Kinnear, 42 111. 160, Beauchamp v. Kankakee Co., 
 45 111. 274, and Carter v. City of Chicago, 57 111. 283, and to show 
 that in each case the injunction was directed against the enforci'inent 
 of, or acts done in pursuance of, the illegal legislation, not against its 
 passage or enactment. 
 
 « 1 Dill. Mun. Corp., 4th ed., § 308, note on page 387, 
 7 "To this effect are the following authorities: Des Moines Gas Co. 
 V. City of Des Moines, 44 Iowa, 505, 24 Am. Rep. 756; Linden v. 
 Case, 46 Cal, 171; Men-iam v. Board of Supervisors, 72 Cal. 517, 14 
 Pac. 137; City of Chicago v. Evans, 24 111. 52; Whitney v. Mayor etc., 
 28 Barb. 233; People v. Mayor, 32 Barb. 35; People v. Mayor, 9 Abb. 
 Pr. 253; Cincinnati etc. R. R. Co. v. Smith, 29 Ohio St. 291; Harrison 
 V. City of New Orleans, 33 La. Ann. 222, 39 Am. Rep. 272; Alpers v.
 
 § 340 EQUITABLE REMEDIES. 602 
 
 supra [in note 3], Mr. Justice Field, who wrote the 
 opinion in Crampton v. Zabi'iskie, supra [in note 16, 
 
 San Francisco, 12 Saw. 631, 32 Fed. 503; 2 High, Inj. (3d ed.), see. 
 1243." See, in addition, the following cases: New Orleans Waterworks 
 Co. V. City of New Orleans, 164 U. S. 471, 17 Sup. Ct. 161, 41 L. ed. 
 518; Murphy v. East Portland, 42 Fed. 308; Lewis v. Denver City 
 Waterworks Co., 19 Colo. 236, 41 Am. St. Rep. 248, 34 Pac. 993; 
 Belington & N. R. Co. v. Town of Alston, 54 W. Va. 597, 46 S. E. 612 
 (no relief against repeal of order granting permission to use streets) ; 
 State V. Sup. Ct. of Milwaukee Co., 105 Wis. 651, 81 N. W. 1086, 48 
 L. R. A. 819; Barto v. Board of Supervisors, 135 Cal. 494, 67 Pac. 758; 
 Dailey v. Nassau County R. Co., 65 N. Y. Supp. 396, 52 App. Div. 
 272; McBride v. Newlin, 129 Cal. 36, 61 Pac. 577 (board acting in a 
 judicial capacity, in allowing a claim, not enjoined) ; Roby v. City of 
 Chicago (111.), 74 N. E. 768 (ordinance granting franchise to street 
 railway); Glide v. Superior Court (Cal.), 81 Pac. 225 (ordinance re- 
 lating to formation of reclamation district). 
 
 The importance of the subject may justify some further quotation 
 from well-considered recent cases. "It is a general principle in the 
 governmental system of this country that the judicial department 
 
 has no direct control over the legislative department The same 
 
 principle, with perhaps some exceptions, or seeming exceptions, ex- 
 tends to the local legislative bodies of municipal corporations. A 
 court of equity cannot properly interpose any obstacle to the exercise 
 of their legislative discretion upon a subject within the scope of their 
 delegated powers. A municipal ordinance passed in pursuance of 
 valid authority emanating from the state legislature has the same 
 force and effect, within proper limits, as if passed by the legislature 
 
 itself It is true, the municipal legislative body may adopt an 
 
 illegal ordinance. So the state legislature may enact an uncon 
 Btitutional statute. The remedy is the same in either case. By proper 
 and timely application to the courts the enforcement of the uncon- 
 stitutional statute, as well as the enforcement of the illegal ordin- 
 ance, may be restrained or corrected. In such case, however, the 
 judicial process is executed against some ministerial or administrative 
 officer, or against som.e individual or corporation, and thus all sub- 
 stantial injury is averted without direct interference with legislative 
 action or discretion. ' ' Per Elliott, J., in Lewis v. Denver City Water- 
 works Co., 19 Colo. 236, 41 Am. St. Rep. 248, 74 Pac. 993. 
 
 Of course, an injunction will be denied when the proposed ordin- 
 ance is merely inexpedient: Wright v. People, 31 Colo. 461, 73 Pac. 
 869; and also where infra vires, but consequences may be injurious: 
 Kico V. Snider, 134 Fed. 953.
 
 603 INJUNCTION; MUNICIPAL CORPORATIONS. § 340 
 
 § 344, and note 5, § 339], says : 'If by either body— the 
 legislature or the board of supervisors — an unconstitu- 
 tional act be passed, its enforcement may be arrested. 
 The parties seeking to execute the invalid act can be 
 reached by the courts, while the legislative body of the 
 state or of the municipality, in the exercise of its legis- 
 lative discretion, is beyond their jurisdiction. The 
 fact that in either case the legislative action threatened 
 may be in disregard of constitutional restraint, and im- 
 pair the obligation of a contract .... does not affect 
 the question. It is legislative discretion which is exer- 
 cised, and that discretion, whether rightfully or wrong- 
 fully exercised, is not subject to interference by the ju- 
 diciary The principle that the exercise of legis- 
 lative power by a municipal body is beyond control is 
 too important, in our institutions, to be weakened by 
 occasional decisions in disregard of it.' In Des Moines 
 Gas Co. V. City of Des Moines, supra [in note 7], where 
 the city of Des Moines had chartered a gas company, 
 with certain exclusive privileges, and attempted by a 
 subsequent ordinance to repeal said charter, and grant 
 the same privileges to another company, it was sought 
 to enjoin the passage of the repealing ordinance on the 
 ground that it would be a violation of the contract cre- 
 ated by the charter, and therefore unconstitutional, but 
 it was held that the court had no power to issue the 
 injunction, under the circumstances; and it was there 
 said: 'The general assembly is a co-ordinate branch of 
 the state government, and so is the law-making power 
 of public municipal corporations, within the prescribed 
 limits. It is no more competent for the judiciary to in- 
 terfere with the legislative acts of the one than the 
 other. But the unconstitutional acts of either may be 
 annulled. Certainly, the passage of an unconstitu- 
 tional law by the general assembly could not be en-
 
 i 341 EQUITABLE KEMEDIES. 604 
 
 joined. If so, under the pretense that any proposed 
 law was of that character, the judiciary could arrest 
 
 the wheels of legislation After its passage the 
 
 judiciary may declare the law unconstitutional. But 
 previous to that time judicial powers cannot be invoked. 
 .... A void law is no law, and this, without doubt, is 
 true as to an ordinance While it is not the prov- 
 ince of the judiciary to interfere and arrest the passage 
 of the ordinance, yet the doors are open for the purpose 
 of testing its legality.' " 
 
 § 341. Same; Exceptions to the General Rule. — "There 
 may be instances when this restriction upon the power 
 of the courts will sometimes be disregarded, as where 
 municipal corporations are exercising mere business 
 or ministerial, rather than legislative, powers,* or are 
 wrongfully disposing of property held by them as trus- 
 tees for the public,^ or are attempting to act upon mat- 
 
 8 Citing City of Valparaiso v. Gardner, 97 Ind. 1, 49 Am. Eep. 416; 
 Dill. Mun. Corp. (4th ed.), §§ 473, 474, 927, 1048. See, also, Board of 
 Commissioners of Henry County v. Gillies, 138 Ind. 667, 38 N. E. 40 
 (letting contract a ministerial act). 
 
 9 Citing Milhau v. Sharp, 15 Barb. 193; Sherlock v. Village of Win- 
 netka, 59 111. 389. See, especially, Eoberts v. City of Louisville, 92 
 Ky. 95, 36 Am. St. Eep. 449, note, 17 S. W. 216, where an injunction 
 was sustained against a city and its officials, at the suit of a tax-payer, 
 to prevent the passage of an ordinance by the city council, authoriz- 
 ing the mayor to convey certain real property acquired and held by 
 the city under an act of the legislature. The court says in part: 
 "A municipal corporation is created for a double purpose, and con- 
 sequently has a dual character, — one governmental or public, the other 
 
 private or proprietary A municipal corporation, when holding, 
 
 in its private or proprietary character, property or funds in trust for 
 tax-payers and inhabitants within its limits, occupies towards them a 
 relation like that of a purely private corporation to its cestuis que 
 
 trustent, who are its shareholders In our opinion, the general 
 
 proposition, a court of equity may not enjoin passage of a municipal 
 ordinance, must be confined in its application to subjects over which 
 the corporation, in its governmental or public character, has discr©-
 
 605 INJUNCTION; MUNICIPAL CORPOEATIONS. § 341 
 
 ters not, by their charters or by the law, subject to their 
 jurisdiction,^*^ or when it appears that the mere voting 
 on, and formal passage of, a resolution or ordinance, 
 will instantly, without any action or attempt to enforce 
 any right or privilege under it, effect an irremediable 
 private injury."^ ^ It can hardly be claimed, however, 
 that the foregoing exceptions have met with universal 
 recognition. 
 
 tionary authority; and, if it be conceded taxable inhabitants have a 
 right to resort to equity at all to restrain a municipal corporation and 
 its officers from making an illegal or wrongful disposition of public 
 property, whereby the plaintiffs will be injuriously affected, it reason- 
 ably follows the power exists to enjoin passage of the ordinance 
 authorizing the act whenever irreparable injury will be done to the 
 
 plaintiffs, and they have no adequate remedy at law The plain 
 
 legal duty is imposed upon the general council to hold, control, and 
 manage the wharf property for use of the public, which cannot be 
 evaded by transfer of it, or otherwise," etc. See, also. People v. 
 Dwyer, 90 N. Y. 402. 
 
 10 Citing Alpers v. San Francisco, 12 Saw. 631, 32 Fed. 503. See, 
 also, Wabaska Electric Co. v. City of Wymore, 60 Neb. 199, 8'2 N, W. 
 626 (the injunction should be directed to the mayor and city council, 
 and not to the city, since in attempting to legislate upon matters be- 
 yond its jurisdiction the governing body of a city does not represent 
 the city, and does not act as its agent, nor by color of its authority), 
 International Trading Stamp Co. v. City of Memphis, 101 Tenn. 181, 
 47 S. W. 136. In Poppleton v. Moores, 62 Neb. 851, 88 N. W. 128, 
 it was held that "where the proposed action on the city's part in- 
 volves the entering into, or, rather, continuing in, contractual relations 
 materially affecting the interests of citizens, and is an extension of a 
 franchise not only unauthorized, but forbidden, by the city charter, it 
 would seem to warrant the trial court's interposing by injunction," 
 eiting People v. Sturtevant, 9 N. Y. 263, 59 Am. Dec. 536. But the 
 eourt is without jurisdiction to enjoin the passage of an ordinance 
 granting a franchise to a street railway, when the power of granting 
 such franchise is, by statute, confided to the discretion of the govern- 
 ing body of the city: State v. Superior Court of Milwaukee County, 
 105 Wis. 651, 81 N. W. 1046, 48 L. R. A. 819. 
 
 11 Citing Whitney v. Mayor etc., 28 Barb. 233. See, also, the 
 dictum in Lewis v. Denver City Waterworks Co., 10 Colo. 236, 41 Am. 
 St. Rep. 248, 34 Pac. 993, conceding an exception to the doctrine of 
 non-interference, "if it should be made to appear that the legislative
 
 § 342 EQUITABLE KEMEDIES. 606 
 
 § 342. Second Limitation; Acts Within Discretionary 
 Powers not Interfered with. — A second limitation is found 
 in the well-settled principle that where municipal au- 
 thorities are acting within their well-recognized pow- 
 ers, or are exercising a discretionary power, a court of 
 equity has no jurisdiction to interfere, unless their ac- 
 tion is tainted with fraud, or the power or discretion 
 is being manifestly abused to the oppression of the citi- 
 2en 12 "The court will not interfere to see whether they 
 
 body of a municipality was about to pass some ordinance, resolution, or 
 order, and that its mere passage would immediately occasion or be 
 immediately followed by, some irreparable loss or injury beyond the 
 power of redress by subsequent judicial proceedings, a court of equity 
 might, perhaps, extend its strong arm to prevent such loss or injury," 
 citing Spring Valley Water Co. v. Bartlett, 16 Fed. 615, 8 Saw. 
 555. In International Trading Stamp Co. v. City of Memphis, 101 
 Tenn. 181, 47 S. W. 136, injunction was allowed before the passage 
 of an illegal ordinance taxing the use of trading stamps, because after 
 its passage a multiplicity of suits would be necessary. 
 
 12 McCarmel v. Shaw, 155 111. 37, 46 Am. St. Rep. 311, 39 N. E. 
 584, 27 L. R. A. 580; Fitzgerald v. Harms, 92 111. 372; Brush v. City 
 of Carbondale, 78 111. 76; Andrews v. Board of Supervisors, 70 111. 65; 
 Mutual Electric Light Co. v. Ashworth, 118 Cal. 1, 50 Pac. 10; Dailey 
 V. City of New Haven, 60 Conn. 314, 22 Atl. 945, 14 L. R. A. 69 (no 
 injunction against a city refusing to accept a certain trust) ; Whit- 
 ney V. City of New Haven, 58 Conn. 450, 20 Atl. 666 (demolition of 
 public building not enjoined) ; Mayor v. Camak, 75 Ga. 429 (sale of 
 stock owned by city not enjoined) ; Downing v. Ross, 1 App. D. C 
 251 (letting contracts for public improvements); Board of Commis- 
 sioners of Perry County v. Gardner, 155 Ind. 165, 57 N. E. 908; Soden 
 V. City of Emporia, 7 Kan. App. 583, 52 Pac. 461 (manner of con- 
 structing sewerage system is within discretionary power); Sullivan 
 V. Phillips, 110 Ind. 320, 11 N. E. 300 (same); Trustees of Hazel- 
 green V. McNabb, 23 Ky. Law Rep. 811, 64 S. W. 431 (necessity of 
 street improvements is a question of discretion) ; Kelly v. Mayor of 
 Baltimore, 53 Md. 134 (discretion in awarding contract); Glasgow v. 
 City of St. Louis, 107 Mo. 198, 17 S. W. 743 (expediency of vacating 
 a street is a question of discretion); Atkinson v. Wykoff, 58 Mo. App. 
 86 (same); Lane v. Morrill, 51 N. H. 422; Morgan v. Binghampton, 
 102 N. Y. 500, 7 N. E. 424 (construction of sewer); Black v. Commis- 
 sioners of Buncombe County, 129 N. C. 121, 39 S. E. 818 (discretion 
 in issuing bonds); Delaware County's Appeal, 119 Pa. St. 159, 13
 
 d07 INJUNCTION; MUNICIPAL CORPORATIONS. § 343 
 
 are acting wisely or judiciously."^^ "Where legislative 
 power is conferred upon [an incorporated city] by the 
 state, it is necessary that a degree of freedom should 
 be allowed in its exercise; otherwise, the city would be 
 so hampered in the government of its people as would 
 defeat the very ends of its incorporation. Hence it is 
 that the state courts will never interfere with the free 
 exercise of such rights as are left to the discretion of 
 a corporate authority, unless such authority should 
 go beyond the scoj^e of power delegated, or unless the 
 discretion given should be abused by an arbitrary exer- 
 cise thereof, and by a plain and unwarranted violation 
 of private rights."^* 
 
 § 343. No Injunction to Test the Validity of Municipal 
 Org-anization. — It is a well-established doctrine that quo 
 warranto^ and not injunction, is the proper remedy to 
 
 Atl. 62; Linden Land Co. v. Milwaukee Electric Ry. & Lighting Co., 
 117 Wis. 493, 83 N. W. 851 (granting of franchise) ; Kendall v. Frey, 
 74 Wis. 26, 17 Am. St. Rep. 118, 42 N. W. 466 (suitableness of site 
 for public building). But gross abuse of discretion, as in the pur- 
 chase for $28,000 of waterworks worth only $10,000, and inadequate 
 and unsuited to the purpose, may be enjoined at the suit of a tax- 
 payer; Avery v. Job, 25 Or. 512, 36 Pac. 293. See People v. Dwyer, 
 90 N. Y. 402. 
 
 13 Western Union Tel. Co. v. City of New York, 38 Fed. 552, 3 L. 
 R. A. 449. 
 
 14 Burckhardt v. City of Atlanta, 103 Ga. 302, 30 S. E. 32, per 
 Lewis, J, (question of necessity of repairs to street). In a lead- 
 ing English case Lord Chancellor Cottenliara said, speaking of 
 acts of poor-law commissioners: "The court will not interfere to 
 see whether any alteration or regulation which they may direct 
 is good or bad; but, if they are departing from that power which 
 the law has vested in them, if they are assuming to themselves a 
 power over property which the law does not give them, this court no 
 longer considers them as acting under the authority of their commis- 
 sion, but treats them, whether they be a corporation or individuals, 
 merely as persons dealing with property without legal authority": 
 Frewin v. Lewis, 4 Mylne & C. 254. See, also, Lord Auckland v. 
 Westminster Board, L. R. 7 Ch. 597.
 
 S 344 EQUITABLE REMEDIES. 608 
 
 inquire whether a municipal corporation was legally 
 created, as well as to oust persons exercising the priv- 
 ileges and powers of corporate officers when the munici- 
 pal corporation has no legal existence.^* 
 
 § 344. Tax-payers' Suits; General Principle. — The pre- 
 vailing doctrine as to equitable relief against the abuse 
 of power by officers of municipal corporations was for- 
 mulated in an often-quoted opinion of the supreme court 
 of the United States, speaking by Mr. Justice Field; 
 "Of the right of resident tax-payers to invoke the inter- 
 position of a court of equity to prevent an illegal dis- 
 position of the moneys of the county [or other munici- 
 pality], or the illegal creation of a debt which they, in 
 common with other property-holders of the county, may 
 otherwise be compelled to pay, there is at this day no 
 serious question. The right has been recognized by the 
 state courts in numerous cases; and from the nature of 
 the powers exercised by municipal corporations, the 
 great danger of their abuse, and the necessity of prompt 
 action to prevent irremediable injuries, it would seem 
 eminently proper for courts of equity to interfere, upon 
 the application of the tax-payers of a county, to prevent 
 the consummation of a wrong, when the officers of these 
 corporations assume, in excess of their powers, to cre- 
 ate burdens upon property-holders. Certainly, in the 
 absence of legislation restricting the right to interfere 
 in such cases to public officers of the state or county, 
 there would seem to be no substantial reason why a bill 
 
 15 Osborn v. Village of Oakland, 49 Neb. 340, 68 N. W. 506, and 
 cases cited (no injunction to prevent the election of officers ti> 
 manage tbe affairs of the municipality on the ground that it has no 
 corporate existence) ; MacDonald v. Eehrer, 22 Fla. 198, and cases 
 «ited; People v. Clark, 70 N. Y. 518; Hughes v. Dobbs, 84 Tex. 502, 
 19 S. "SR. 684. As to injunctions relating to municipal elections and 
 the title to municipal offices, see ante, §§ 331-338.
 
 60§ INJUNCTION; MUNICIPAL CORPORATIONS. § 344 
 
 by or on behalf of individual tax-payers should not be 
 entertained to prevent the misuse of corporate power. 
 The courts may be safely trusted to prevent the abuse 
 of their process in such cases."^^ 
 
 16 Crainpton v. Zabriskie (1879), 101 U. S. 601, 25 L. ed. 1070. Of 
 innumerable cases affirming the doctrine, the following may be con- 
 Bulted with advantage for their statement of the doctrine and its 
 reasons: 
 
 Alabama.— New Orleans, M. & C. R. R. Co. v. Dunn, 51 Ala. 128 
 ("the remedy is simple, expeditious, and preventive of the abuse 
 of corporate powers"). 
 
 Arkansas. — Town of Jaeksonport v. Watson, 33 Ark. 704; Russell 
 V. Tate, 52 Ark. 541, 20 Am, St. Rep. 193, 13 S. W. 130, 7 L. R. A. 
 180. 
 
 California.— Winn v, Shaw, 87 Cal. 631, 636, 25 Pac. 968, distin- 
 guishing earlier cases; Bradfordv. City and County of San Fran- 
 cisco, 112 Cal. -537, 44 Pac. 912. 
 
 Colorado. — Mclntyre v. Board of Commissioners of El Paso County, 
 15 Colo. App. 78, 61 Pac. 237. 
 
 Connecticut. — Scofield v. Eighth School District, 27 Conn, 499. 
 
 Florida. — Chamberlain v. City of Tampa, 40 Fla. 74, 23 South, 572. 
 
 Georgia.— City of Macon v. Hughes, 110 Ga. 795, 36 S. E. 247. 
 
 Illinois. — The Illinois reports abound in well-considered cases ap- 
 plying the general principle of the text. The rule is thus formulated: 
 * ' A tax-payer of a city has a right to enjoin any intended misappro- 
 priation of public money by the council or officers of the city, or 
 payment of such money on an illegal contract or without authority 
 of law, or the execution of such contracts, or the incurring of illegal 
 indebtedness." See Holden v. City of Alton, 179 111. 318, 53 N. E. 
 556, and cases cited; Adams v. Brenan, 177 111. 194, 69 Am. St. Eep. 
 222, 52 N. E. 314, 42 L. R. A. 418, and cases cited; City of Chicago 
 T. Nichols, 177 111. 97, 52 N, E. 359; Stevens v, St. Mary's Training 
 School, 144 111. 336, 36 Am. St. Rep. 438, 32 N. E. 962, 18 L. R. A. 
 832, 36 Cent. L. J. 275, 27 Am. Law Rev. 618; McCord v. Pike, 
 121 111, 288, 2 Am. St. Rep. 85, 12 N. E, 259, and cases in monographic 
 note; Wright v. Bishop, 88 111. 302; City of Springfield v. Edwards, 
 S4 111. 626; Sherlock v. Village of Winnetka, 59 111. 389, 68 111. 530; 
 Perry v. Kinnear, 42 111, 160; Colton v. Hancliett, 13 111. 615; Scott 
 V. Allen, 53 111. App, 341; Gorman v. Tidholm, 94 111. App. 371. 
 
 Indiana. — Harney v, Indianapolis etc, R, Co., 32 Ind. 244; English 
 T. Smock, 34 Ind. Ho, 7 Am. Eep. 215; Board of Commissioners of 
 Henry County v. Gillies, 138 Ind. 667, 38 N, E. 40. 
 Equitable Remedies, Vol. 1—39
 
 S 344 EQUITABLE REMEDIES. 610 
 
 Iowa. — Hospers v. Wyatt, 63 Iowa, 264, 19 N. W. 204; Anderson 
 V. Orient Fire Ins. Co., 88 Iowa, 579, 55 N. W. 348; Hanson v. Hunter 
 etc. Co., 86 Iowa, 722, 48 N. W. 1005, 53 N. W. 84; Snyder v. Fos- 
 ter, 77 Iowa, 638, 42 N. W. 506; Brockman v. City of Creston, 79 
 Iowa, 587, 44 N. W. 822. 
 
 Kentucky. — Patton v. Stephens, 14 Bush, 324; Eoberts v. City of 
 Louisville, 92 Ky. 95, 36 Am, St. Eep. 449, 17 S. W. 216. 
 
 Louisiana. — State v. City of New Orleans, 50 La. Ann. 880, 24 South. 
 666. 
 
 Maryland. — Mayor etc. of Baltimore v. Gill, 31 Md. 375; Pete" v. 
 Prettyman, 62 Md. 566; Mayor of Baltimore v. Keyser, 72 Md. 107, 
 19 Atl. 706. 
 
 Michigan.— Savidge v. Village of Spring Lake, 112 Mich. 91, 70 N. 
 W. 425; Black v. Common Council of City of Detroit, 119 Mich. 571, 
 78 N. W. 660; Curtenius v. Hoyt, 37 Mich. 583. 
 
 Minnesota.^Hodgman v. Chicago & St. P. E. Co., 20 Minn. 48, 20 
 Gil. 36 (the tax-payer's ''damages" are special, affecting his private 
 property and private rights) ; Sinclair v. Commissioners of Winona 
 County, 23 Minn. 404, 23 Am. Eep. 694 (tax-payer has a "special in- 
 terest distinct from the public"); Flynn v. Little Falls E. & W. Co., 
 74 Minn. 180, 77 N. W. 38, 78 N. W. 106; Grannis v. Board of Com- 
 missioners of Blue Earth County, 81 Minn. 55, 83 N. W. 495. 
 
 Missouri.— Newmeyer v. Missouri & M. R. Co., 52 Mo. 81, 14 Am. 
 Eep. 394; Wagner v. Meetz 69 Mo. 151. 
 
 Montana. — Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 249. 
 
 Nebraska.— Tukey v. City of Omaha, 54 Neb. 370, 69 Am. St. Eep. 
 711, 74 N. W. €13; Ackerman v. Thummel, 40 Neb. 95, 58 N. W. 738; 
 City of South Omaha v. Tax-payers' League, 42 Neb. 671, 60 N. W. 
 957. 
 
 New Hampshire.— Blood v. Manchester Elect. Lt. Co., 68 N. H. 340, 
 39 Atl. 335. See Brown v. Eeding, 50 N. H. 336. 
 
 North Carolina. — Vaughn v. Board of Commissioners, 118 N. C. 636 
 24 S. E. 425. 
 
 North Dakota. — Eoberts v. City of Fargo, 10 N. D. 230, 86 N. W. 
 726. 
 
 Ohio.- Hays v. Jones, 27 Ohio St. 218. 
 Oregon.— Brownfield v. Houser, 30 Or. 534, 49 Pac. 843. 
 Pennsylvania.— Page v. Allen, 58 Pa. St. 338, 98 Am. Dec. 272. 
 Rhode Island.— Ecroyd v. Coggeshall, 21 R. I. 1, 71 Am. St. Rep. 
 241, 41 AU. 260. 
 
 South Carolina.— Mauldin v. City Council of Greenville, 33 S. C 1, 
 11 S. E. 434, 8 L. R. A. 291.
 
 611 INJUNCTION; MUNICIPAL COEPOEATIONS. § 344 
 
 South Dakota. — Graves v. Jasper School Township, 2 S. D. 414, 
 50 N. W. 904. 
 
 Texas.— Wood v. City of Victoria, 18 Tex. Civ. App. 573, 46 S. W. 
 284 (no injunction against ultra viixs municipal act when plaintiff 
 not injured and burden of taxation not increased). 
 
 Virginia. — Lynchburg & R. St. Ky. Co. v. Danieron, 95 Va. 545, 28 
 S. E. 951. 
 
 Washington. — Times Publishing Co. v. City of Everett, 9 Wash. 518, 
 43 Am. St. Rep. 865, 37 Pac. 695. 
 
 Wisconsin. — Willard v. Comstock, 58 Wis. 565, 46 Am. Rep. 657, 17 
 N. W. 401; Webster v. Douglas County, 102 Wis. 181, 72 Am. St. Rep. 
 870, 77 N. W. 88'5; and see Linden Land Co. v. Milwaukee Electric 
 Ey. & L. Co., 107 Wis. 493, 83 N. W. 851. 
 
 United States. — Davenport v. Buffington, 97 Fed. 234, 38 C. C. A. 
 453, 46 L. R. A. 377; Downing v. Ross, 1 App. D. C. 251; Roberts v. 
 Bradfield, 12 App. D. C. 453; Dewey Hotel Co. v. United States Elect. 
 Lighting Co., 17 App. D. C. 356. 
 
 The plaintiff's capacity to sue depends on his character as a tax- 
 j)ayer, not on his residence within the municipality: Brockman v. 
 City of Creston, 79 Iowa, 587, 44 N. W. 822. The fact that the value 
 of his property is inconsiderable, and his taxes therefor are trifling, 
 is immaterial; Id.; see, also, Scofield v. Eighth School District, 27 
 Conn. 499, where injunction was awarded against an illegal use of 
 Bchool property for religious purposes, although the injury to the 
 property was not serious. 
 
 The tax-payer's right to an injunction denied when an adequate 
 legal remedy provided by statute: Taylor v. Davey, 55 Neb. 153, 75 
 N. W. 553; Manly Mfg. Co. v. Broaddus, 94 Va. 547, 27 S. E. 43S; 
 Wahl V. School Directors, 78 111. App. 403; or by certiorari: Jackson 
 V. City of Newark, 53 N. J. Eq. 322, 31 Atl. 233, 
 
 The mere fact that an act is illegal does not warrant an injunction 
 at suit of tax-payer, when public funds will not be affected: Strick- 
 land V. Knight (Fla,), 36 South. 363 (not against illegal licensing of 
 saloon); Clark v. Interstate Ind. Tel. Co. (Neb.), 101 N. W. 977 (not 
 against granting franchise). 
 
 The conclusions arrived at by Judge Dillon in his discussion of the 
 subject have been generally accepted by the courts: Dillon Mun. 
 Corp. (4th ed.), § 922. "Upon a survey of the decisions in Great 
 Britain and the United States, while they exhibit some diversity of 
 opinion, it seems to us, in view of the nature of municipal powers, 
 the danger of abuse, the necessity for prompt remedy on the part of 
 those most interested in the proper administration of municipal af- 
 fairs, — to wit, the taxable inhabitants, — that the following conclu- 
 sions rest upon sound reason, and have also the support of the decided 
 preponderance of judicial authority.
 
 § 344 EQUITABLE EEMEDIES. 612 
 
 The suit by the tax-payer has practically superseded, 
 in this country, the remedy of information in chancery 
 by the attorney-general to restrain ultra vires acts of 
 public corporations; still, the right of the state, by the 
 proper officer, to maintain proceedings by injunction 
 to restrain municipal corporations from doing acts in 
 violation of the constitution and laws of the state has 
 met with abundant recognition in our reports.^ '^ 
 
 It seems that the motive which actuates the tax-payer 
 in bringing suit to enjoin illegal expenditures of public 
 
 "1^. The proper parties may resort to equity, and equity will, in the 
 absence of restrictive legislation, entertain jurisdiction of their suit 
 against municipal corporations when these are acting ultra vires, or 
 assuming or exercising a power over the property of the citizen, or 
 over corporate property or funds, which the law does not confer upon 
 them, and wbere such acts affect injuriously the property owner or 
 the taxable inhabitant. But if in these cases the property owners 
 or the taxable inhabitants can have full and adequate remedy at law, 
 equity will not interfere, but leave them to their legal remedy, 
 
 "2. That, in the absence of special controlling legislative provision, 
 the proper public officer of the commonwealth, which created the cor- 
 poration and prescribed and limited its powers, may, in his own name, 
 or in the name of the state, on behalf of residents and voters of the 
 municipality, exercise the authority, in proper cases, of filing an in- 
 formation or bill in equity to prevent the misuse of corporate pow- 
 ers, or to set aside or correct illegal corporate acts. 
 
 "3. That the existence of such a power in the state, or its proper 
 public law officer, is not inconsistent with the right of any taxable 
 inhabitant to bring a bill to prevent the coi-porate authorities from 
 transcending their lawful powers where the effect will be to impose 
 upon him an unlawful tax, or to increase Jiis burden of taxation. Much 
 more clearly may this be done when the right of the public officer 
 of the state to interfere is not admitted, or does not exist; and in 
 Buch case it would seem that a bill might properly be brought in the 
 name of one or more of the taxable inhabitants for themselves and all 
 others similarly situated, and that the court should then regard it in 
 the nature of a public proceeding to test the validity of the corporatu 
 acts sought to be impeached, and deal with and control it accord- 
 ingly." 
 
 17 See State v. County Court of Saline County, 51 Mo. 350, 11 Am. 
 TJep, 434, and the exhaustive examination of the authorities in the 
 opinions of Shipley, J., and Bliss, J.; Board of Education y. Terri- 
 tory, 12 Okla. 286, 70 Pac. 792.
 
 (513 INJUNCTION; MUNICIPAL CORPORATIONS. § 345 
 
 moneys — the fact, for example, that he is interested in 
 preventing the awarding to a business rival of an illegal 
 contract whose execution is sought to be enjoined — is 
 immaterial, if he sues in his representative character as 
 taxpayer.**^ 
 
 § 345. Rationale of the Doctrine. — "The grounds upon 
 which such suits by tax-payers have been held unmain- 
 tainable are, that it requires some individual interest 
 distinct from that which belongs to every inhabitant 
 of the town or county to give the party complaining a 
 standing in court, where it is an alleged delinquency 
 in the administration of public affairs which is called 
 in question ; and that the ownership of taxable property 
 is not such a peculiarity as to take the case out of the 
 rule; and that the only remedies against an abuse of 
 administrative power tending to taxation is furnished 
 by the elective franchise or a proceeding on behalf of 
 
 18 Packard v. Hayes, 94 Md. 233, 51 Atl. 32: Board of Com- 
 missioners of Henry County v. Gillies, 138 Ind. 699, 38 N. E. 40; 
 Times Publishing Co. v. City of Everett, 9 Wash. 518, 43 Am, St. 
 Rep. 865, 37 Pac. 95; Keen v. City of Waycross, 101 Ga. 588, 29 S. E. 
 42; Brockman v. City of Creston, 79 Iowa, 587, 44 N, W. 822; Eng- 
 stad V. Dinnie, 8 N. D. 1, 76 N. W. 292; but see Highway Com- 
 missioners V. Deboe, 43 111. App. 25, that relief will be refused if it 
 appears that the tax-payer is merely a colorable plaintiff, suing in 
 behalf of other parties in interest. Compare Kelly v. Mayor etc. of 
 Baltimore, 53 Md, 134, where relief was refused because the plain- 
 tiff did not sue in a representative capacity; Commissioners' Court 
 of Perry County v. Medical Society of Perry County, 128 Ala. 257, 
 29 South. 586. The fact that the plaintiff, as an individual, is in- 
 jured in his business by the competition of the municipality engag- 
 ing in such business iiltra vires, does not entitle him to maintain 
 the suit: Keen v. City of Waycross, supra; Pudsey Gas Co. v. Cor- 
 poration of Bradford, L. R. 15 Eq. 167. 
 
 It has been said that if the matter is fully presented to the 
 court and is decided upon the merits, a subsequent tax-payer's suit 
 upon the same subject-matter is barred; but where the matter is 
 not fully presented, as where the suit is dismissed by consent, there 
 is no bar: Lindsay v. Allen (Tenn.), 82 S. W. 171.
 
 S 345 EQUITABLE EEMEDIES. 614 
 
 the state, or, in the case of an act without jurisdiction, 
 in treating the attempt to enforce the illegal tax as an 
 act of trespass."^^ In other words, the courts which 
 have taken a view adverse to the maintenance of such 
 suits by the tax-payer have followed the analogy of the 
 familiar rule as to parties plaintiff in suits to enjoin 
 a public nuisance. It cannot be claimed that there is 
 perfect agreement in the reasons assigned by the courts 
 which uphold the doctrine. Most of the earlier cases 
 are content to rest it upon the ground of urgent public 
 necessity, and of the ultimate injury to tax-payers as a 
 special class, distinct from the general public. "It is 
 certainly well settled that public wrongs cannot be re- 
 dressed at the suit of individuals, who have no other 
 interest in the matter than the rest of the public. Thus 
 an individual cannot maintain a bill of injunction to 
 prevent a public nuisance, unless he suffered thereby 
 some special damage; and the principle governing cases 
 of that kind has been supposed to be applicable to the 
 present case. But it appears from the averments of 
 the bill, that these complainants, as tax-payers of the 
 city, and others similarly situated, in whose behalf as 
 well as their own the bill is filed, constitute a class 
 specially damaged by the alleged unlawful act of the 
 corporation, in the alleged increase of the burden of 
 taxation upon their property situated within the city. 
 The complainants have therefore a special interest in 
 the subject-matter of the suit, distinct from that of 
 the general public. The people of the state outside of 
 the city of Baltimore, who are not liable to city tax- 
 ation, can suffer no damage from the illegal act of 
 the corporation complained of in the bill. Why, then, 
 
 19 Newmeyer v. Missouri & M. E. Co. (1873), 52 Mo. 81, 85, 14 
 Am. Kep. 394, reviewing the earlier cases pro and con. See, among 
 other cases, Craft v. Jackson County, 5 Kan. 518.
 
 615 INJUNCTION; MUNICIPAL COEPORATIONS. 8 345 
 
 is it necessary that the state, by the attorney-general, 
 should be a party to the cause ?"^° "The injury charged 
 [illegal issue of county bonds] as the result of the acts 
 complained of is a private injury in which the tax-payers 
 of the county are the individual sufferers, rather than 
 the public. The people out of the county bear no part 
 of the burden; nor do the people within the county, 
 except the tax-payers, bear any part of it."^^ "The ju- 
 risdiction is sustained on the ground that the injury 
 would be irreparable. The misappropriation of corpor- 
 ate funds \v'ould not render the tax levied to repair the 
 waste or supply the deficiency illegal. "^^ "The citizen 
 may not be able to protect himself in any other way. 
 If this is not his remedy, he has none. The money 
 drawn from him by taxation may be squandered by un- 
 lawful donations to forward all manner of visionary 
 schemes; other contributions may be wrung from him 
 from year to year, and w^asted in the same way, in de- 
 fiance of laws carefully framed for his protection, and 
 he would nevertheless be helpless. A more proper case 
 for injunction cannot well be conceived than that in 
 which a tax-payer seeks to protect from lawless waste 
 a public fund, which, when dissipated thus, the law will 
 with strong hand compel him to replenish. "-^ Judge 
 
 20 Mayor etc. of Baltimore v. Gill (1869), 31 Md. 375, 394. 
 
 21 Newmeyer v. Missouri & M. E. Co., 52 Mo. 81, 14 Am. Eep. 
 394. 
 
 22 Willard v. Comstock, 58 Wis. 5G5, 46 Am. Eep. 657, 17 N. W. 
 401. 
 
 23 Harney v. Indianapolis etc. E. E. Co., 32 Ind. 244. "The 
 foundation of the doctrine is the interference with the rights of 
 the tax-payer in the increase of the burden of taxation, or the lia- 
 bility thereto, by misappropriating the property of the city, which 
 may demand the levy of taxes to acquire other property in its place; 
 or, the property having been acquired through taxation, its disposi- 
 tion would be in effect a misappropiiation of taxes which may occa- 
 sion levies to take the place of the misapplied tax": Brockman v. 
 City of Creston, 79 Iowa, 587, 44 N. W. 822.
 
 I 345 EQUITABLE EEMEDIES. 616 
 
 Dillon finds siifQcient support for the doctrine in the 
 analogy presented by the familiar rules of equity relat- 
 ing to suits by stockholders of private corporations to 
 prevent or redress malfeasance or ultra vires acts on the 
 part of their governing bodies.^* This explanation has 
 met with much favor from the courts,^^ but it is obvious 
 that the analogy is not a perfect one. 
 
 24 Dillon, Miin. Corp. (4th ed.), § 915. Professor Pomeroy (Equity 
 Jurihprudence, §§ 259-270) classes these cases among those in which 
 jurisdiction is assumed by equity for the purpose of avoiding a 
 multiplicity of suits, where numerous persons are injured by the 
 game unlawful act. He lays aside, as obviously not pertinent to a 
 discussion of the doctrine relating to multiplicity of suits, the cases 
 where it has been decided that the citizen indirectly sustaining 
 an injury from an illegal official act has no cause of action what- 
 ever. It is the impression of the present writer that precisely this 
 question, viz., the reasons for the existence or non-existence of any 
 cause of action whatever in the tax-payer because of his ultimately 
 having to bear an increased burden of taxation, is the crucial uiie 
 in the theory of " tax.-payers' suits," and that it has not received a 
 thoroughly convincing answer. It is to be noticed that Judge Dillon 
 advances his suggestion on the subject in a tentative manner, and 
 does not attempt to support it by any earlier authority. The pro- 
 priety of the remedy of injunction, on the other hand, is clear 
 enough, if it be assumed or proved that the wrong to the tax-payer is 
 not a "damnum absque injuria." The question is, of course, chiefly 
 of theoretical interest; the rule itself is established by an over- 
 whelmiug weight of authority. 
 
 25 See Russell v, Tate, 52 Ark. 541, 20 Am. St. Rep. 193, 13 S. W. 
 130, 7 L. R. A. 180; Mclutyre v. Board of Commissioners of El Paso 
 County, 15 Colo. App. 78, 61 Pac. 237; Ilospers v. Wyatt, 63 Iowa, 
 2G4; Tukoy v. City of Omaha, 54 Neb. 370, 69 Am. St. Rep. 711, 74 
 N. W. 613; Blood v. Manchester Elect, Lt. Co., 68 N. H. 340, 39 Atl. 
 335; Linden Land Co. v. Milwaukee Elect. Ry. & Lighting Co., 83 
 N. W. 851, 107 Wis. 493; Roberts v. City of Louisville, 92 Ky. 95, 
 36 Am. St. Rep. 449, 17 S. W. 216, 13 L. R. A. 844; Scofield v. Eighth 
 School District, 27 Conn, 499; Kew Orleans, M. & C. E. R. Co, v. 
 Dunn, 51 Ala. 128, 
 
 As an outgrowth of this analogy, it has been held that the tax- 
 payer may not only sue to enjoin an illegal diversion of funds, but 
 also "to compel the restitution of public funds which have been il- 
 legally diverted and lodged in the hands of persons not entitled to
 
 617 INJUNCTION; MUNICIPAL COEFOKATIONS. §346 
 
 § 346. New York Rule—The rule in New York, al- 
 though now settled by statute, has gone through vari- 
 ous changes. In the early cases in the inferior courts 
 the right of the tax-payer to obtain relief was clearly 
 recognized. It was laid down that "when an act is 
 clearly illegal, and when the necessary effect of such 
 act will be to injure, or impose a burden upon the prop- 
 erty of any corporation, there is enough^ according to 
 every principle which has regulated the action of 
 courts of equity, to warrant the interference of the 
 court." This right of the tax-payers was supported on 
 the ground that "the necessary effect of the act com- 
 plained of will be to impose a burthen upon their real 
 estate. Their interest, then, is as certain and direct 
 as that of a stockholder in a moneyed or other corpora- 
 tion. "^^ The illegal disposition of public money or 
 property amounts to a breach of trust; therefore, an 
 injunction was held proper.^^ Somewhat later a nar- 
 rower rule was adopted, and it was held that a tax- 
 payer in his character as such, whose position was not 
 different from that of the whole body of tax-payers, 
 had no such interest as entitled him to resort to a 
 court of equity, to revise, restrain, or set aside the ac;- 
 
 the same, who have taken them with notice of the wrongful diver- 
 sion, and the governing body of the subordinate or local government 
 will not act or take the necessary steps to have such funds restored": 
 Johnson v. Black (Va.), 49 S. E. 633, and cases cited. In strict ac- 
 cordance with this principle is the decision in a recent case (Eeed v. 
 Cunningham (Iowa), 101 N. W. 1055), where it was held that a tax- 
 payer cannot sue to recover money illegally paid by a municipality, 
 unless he shows a demand upon the officers to sue or that such de- 
 mand would be unavailing. 
 
 26 Christopher v. Mayor, 13 Barb. 567. 
 
 27 Christopher v. Mayor, 13 Barb. 567; Milhau v. Sharp, 15 Barb. 
 393; Stuyvesant v. Pearsall, 15 Barb. 244. But to sustain an in- 
 junction it must appear that the appropriation was beyond the 
 power of the corporate authorities by whom it was passed: Koberts 
 V. Mayor, 5 Abb. Pr. 41.
 
 i 346 EQUITABLE REMEDIES. 618 
 
 tion of town or municipal authorities, upon an allega- 
 tion that their acts were unauthorized and illegal, or 
 that unless arrested they would subject the plaintiff to 
 unjust or illegal taxation.^* This, as we have seen, la 
 an application of the rules relating to public nuisance. 
 The reasoning upon which it was supported is similar 
 to that applied to nuisance cases. "Every person may 
 legally question the constitutional validity of an act of 
 the legislature which affects his private rights; but if a 
 citizen may maintain an action for such a purpose in 
 respect to his rights as a voter and tax-payer, the courts 
 may regularly be called upon to revise all laws which 
 may be passed,"^^ 
 
 The rule was finally embodied in a series of statutes 
 familiarly known as the Tax-payers' Acts.^^ These 
 statutes authorize actions to be maintained by tax-pay- 
 ers against officers, agents, commissioners, or other per- 
 sons acting in behalf of any county, town, village, or 
 municipal corporation ''to prevent any illegal official 
 act on the part of any such officers, agents, commission- 
 ers or other persons, or to prevent waste or injury to 
 any property, funds or estate of such county, town, 
 village or municipal corporation." It will be observed 
 that these provisions contemplate two classes of public 
 acts, viz. : Acts in and of themselves illegal and acts 
 illegal because involving a waste of public funds. This 
 distinction must be kept in mind, for otherwise the de- 
 cisions will seem in hopeless conllict. 
 
 In the first class of cases, the injunction is freely 
 granted whenever it clearly appears that the action is 
 
 28 Doolittle V. Supervisors, 18 N. Y. 155; Eoosevelt v. Draper, 23 
 N. Y. 318; Kilbourne v. St. John, 59 N. Y. 21, 17 Am. Rep. 291. 
 
 29 Doolittle V. Supervisors, 18 N. Y. 155. 
 
 30 Laws of 1872, c. 161; Laws of 1881, c. 531; Laws of 1891, c. 
 276, § 8; Code Civ. Proc, § 1925.
 
 619 INJUNCTION; MUNICIPAL COEPOKATIOJNS. S Mtt 
 
 illegal.^^ Thus, it has issued to restrain the appoint- 
 meut of officers under an unconstitutional law,^^ to re- 
 strain the employment or payment of persons who have 
 not passed civil service examinations,^^ and to prevent 
 the payment of a salary out of a trust fund without 
 audit.^^ Likewise, it is proper when municipal funds 
 are about to be expended under authority of an uncon- 
 stitutional law,^^ or when a board of supervisors il- 
 legally threatens to submit the question of removal of 
 the county seat to the electors^*^ or to allow the illegal 
 assignment of a right to construct a railway in a high- 
 way,^'^ or to restrain a village from contracting debts 
 in excess of the charter limit.^* 
 
 In the second class of cases, however, the right to re- 
 lief is much narrower. "The terms 'waste' and 'injury' 
 used in this statute comprehended only illegal, wrong- 
 ful or dishonest official acts, and were not intended to 
 subject the official action of boards, officers, or munic- 
 ipal bodies acting within the limits of their jurisdic- 
 tion and discretion, but which some tax-payer might 
 conceive to be unwise, improvident, or based on errors 
 of judgment, to the supervision of the judicial tribu- 
 nals."^^ Accordingly, it may be laid down as a general 
 principle that an injunction will not issue to restrain 
 waste or injury of public property by officers acting un- 
 
 31 Evans v. City of Hudson St, Commrs., 84 Hun, 206, 32 N. Y. 
 Supp. 547; West v. City of Utica, 71 Hun, 540, 24 N, Y. Supp. 1075; 
 Beebe v. Board of Supervisors, 64 Hun, 377, 19 N. Y. Supp. 629; 
 Bush V. O'Brien, 164 N. Y. 205, 58 N. E. 106. 
 
 32 Kathbone v. Wirth, 150. N. Y. 459, 45 N. E. 15, 34 L. E. A. 408. 
 
 33 Feck V. Belknap, 130 N. Y. 394, 29 N. E. 977; Eogers v. 
 Common Council, 123 N. Y. 173, 25 N. E. 274, 9 L. E. A. 579. 
 
 34 Warrin v. Baldwin, 105 N. Y. 534, 12 N. E. 49. 
 
 35 Mercer v. Floyd, 24 Misc. Eep. 164, 53 N. Y. Supp. 433. 
 
 36 Williams v. Boynton, 147 N. Y. 426, 42 N. E. 184. 
 
 37 Case V. Cayuga Co., 88 Hun, 59, 34 N. Y. Supp. 595. 
 
 38 Gerlach v. Brandreth, 34 App. Div. 197, 54 ISi. Y. Supp. 479. 
 
 39 Talcott v. City of Buffalo, 125 N. Y. 280, 26 N. E. 263.
 
 § 346 EQUITABLE EEMEDIES. 6a0 
 
 der their discretionary powers unless fraud, collusion, 
 corruption or bad faith can be shown.^" For instance, 
 where a statute provides that all contracts for public 
 work shall be let to the lowest and best bidder, a strong 
 case of abuse of discretion must be shown before a 
 court will interfere with a contract let to a higher bid- 
 der.'** Thus, it has been held that where a telephone 
 franchise has been granted to a corporation for nothing 
 when a private individual has offered fifteen thousand 
 dollars, no injunction should be granted in the absence 
 of an additional showing, for it might be to the public 
 interest to have the privilege awarded to the corpora- 
 tion, and it therefore might be the best bidder.^^ Where, 
 however, a clear case of fraud or abuse of discretion is 
 
 40 Taleott v. City of Buffalo, 125 N. Y. 280, 26 N, E. 263; Ziegler 
 V. Chapin, 126 N. Y. 342, 27 N. E, 471; Boon v. City of Utica, 5 
 Misc. Eep. 391, 26 N. Y. Supp. 932; Eogers v. O'Brien, 1 App. Div. 
 397, 37 N. Y. Supp, 358; Chittenden v. Wurster, 152 N. Y. 345, 
 46 N. E. 857, 37 L. R. A. 809; Abraham v. Meyers, 29 Abb. N. C. 
 384, 23 N. Y. Supp. 226; New York Central & H. R. R. Co. v. Maine, 
 71 Hun, 417, 24 N. Y. Supp. 962; Bell v. City of Rochester, 61 N. Y. 
 St. Eep. 721, 30 N. Y. Supp. 365; Wilkins v. Mayor etc. of City of 
 New York, 9 Misc. Rep. 610, 30 N. Y. Supp. 424; Adamson v. Nassau 
 E. R. Co., 89 Hun, 261, 34 N. Y. Supp. 1073; Sheehy v. McMillan, 
 26 App. Div. 140, 49 N. Y. Supp. 1088; Kittinger v. Buffalo Traction 
 Co., 25 App. Div. 329, 49 N. Y. Supp. 329; Holtz v. Diehl, 26 Misc. 
 Rep. 224, 56 N. Y. Supp. 841; Rockefeller v. Taylor, 28 Misc. Rep. 
 460, 59 N. Y. Supp. 1038; Press Pub, Co. v. Holahan, 29 Misc. Eep. 
 684, 62 N. Y. Supp. 872; Keator v. Dalton, 29 Misc. Eep. 692, 62 
 N. Y, Supp. 878; Basselin v. Pate, 30 Misc. Eep. 368, 63 N. Y. Supp. 
 653; Norris v. Wurster, 23 App. Div. 124, 48 N. Y. Supp. G56; 
 Gusthal V. Board of Aldermen, 23 App. Div. 315, 48 N. Y. Supp. 
 652. 
 
 41 Berghoffen v. City of New York, 31 Misc. Eep. 205, 64 N. Y. 
 Supp. 1082; Kingsley v. Bowman, 33 App. Div. 1, 53 N. Y. Supp. 
 426; Terrell v. Strong, 14 Misc. Eep. 258, 35 N. Y. Supp. lOOO. 
 Where, however, it is clearly illegal to let the contract accordino- to 
 certain requirements, as where one bidder is discriminated against 
 because he employs non-union labor, an injunction is proper: Meyers 
 V. City of N. Y., 58 App. Div. 534, 69 N. Y. Supp. 529; Davenport 
 V. Walker, 57 App, Div. 221, 68 N. Y. Supp. 161. 
 
 42 Barhite v. Home TeL Co., 50 App. Div. 25, 63 N. Y. Supp. 659.
 
 621 INJUNCTION; MUNICIPAL COKPOliATIONS. §§ 347,348 
 
 made out, and the result will be a waste of public funds, 
 an injunction will be granted. 
 
 § 347. The Rule in Massachusetts. — The general equity 
 jurisdiction in Massachusetts is narrow and closely 
 confined by statute. Consequently, it is held that in 
 the absence of a statute, a court has not jurisdiction 
 to entertain a suit by individual tax-payers to restrain 
 a municipality from doing an illegal act.^^ It is pro- 
 vided by statute, however, that "when a town votes to 
 raise by taxation or pledge of its credit, or to pay from 
 its treasury, any money for a purpose other than those 
 for which it has the legal right and power, the supreme 
 judicial court may, upon the suit or petition of not less 
 than ten taxable inhabitants thereof, briefly setting 
 forth the cause of complaint, hear and determine the 
 same in equity."^* This statute is confined in its ap- 
 plication to cases coming within its terms ; and although 
 such a case is made out, relief will be refused if it ap- 
 pears that the tax-payers have been guilty of laches.*^ 
 
 § 348. The Rule in Ohio. — In Ohio the tax-payer is 
 authorized to sue only when it is made the duty of 
 the solicitor of the corporation to commence an action 
 and he, on demand, refuses to do so. The statute pro- 
 vides that the solicitor "shall apply in the name of the 
 coi^poration to a court of competent jurisdiction for an 
 order or injunction to restrain the misapplication of 
 funds of the corporation or the abuse of its corporate 
 powers, or the execution or performance of any contract 
 
 43 Baldwin v. Inhab. of Wilbraham, 140 Mass. 459, 4 N. E. 829; 
 Steele v. Municipal Signal Co., 160 Mass. 36, 35 N. E. 105; Prince 
 V. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. K. A. 610. 
 
 44 Pub. Stats. Mass., c. 27, § 129. See, also, Stats. 1847, c. 37, § 1. 
 
 45 Tash V. Adams, 10 Cush. 252; Fuller v. Inhab. of Melrose, 1 
 Allen, 166; Parsons v. City of Northampton, 154 Mass. 410, 28 N. E. 
 350.
 
 i 349 EQUITABLE REMEDIES. 622 
 
 made in behalf of the corporation in contravention of the 
 laws or ordinance governing the same, which was pro- 
 cured by fraud or corruption."^® In construing this, 
 the supreme court of the state has held that where pro- 
 ceedings of a municipal corporation are unauthorized 
 and void, either from the want of power or from its un- 
 lawful exercise, and are designed to raise a fund by 
 taxation to be applied to the object contemplated by 
 such proceedings, an injunction will issue.'*^ 
 
 § 349. Illustrations of the General Principle; Municipal 
 Aid Bonds. — Abundant illustration of the principles dis- 
 cussed in the preceding sections has been afforded by 
 tax-payers' suits to restrain the unauthorized issue of 
 bonds by municipalities in aid of the construction of 
 railways or other quasi public works.^^ A strong 
 ground for equitable interference in such cases is found 
 in the facts that such bonds are usually negotiable and 
 valid in the hands of any bona fide purchaser, and the 
 tax-payer is consequently remediless unless the issuance 
 of the bonds can be arrested.^^ It is not within the 
 
 46 Rev. Stats. Ohio, § 1777. 
 
 47 Elyria Gas & Water Co. v. City of Elyria, 49 N. E. 335, 57 
 Ohio St. 374. 
 
 48 Wright V. Bishop, 88 111. 302 (railway aid subscriptions pro- 
 hibited by present constitution of Illinois); Chestnutwood v. Hood, 
 68 111. 132; City of Madison v. Smith, 83 Ind. 502; City of Alma 
 V. Loehr, 42 Kan. 368, 22 Pac. 424 (no injunction when the bonds 
 already negotiated) ; Menard v. Hood, 68 111. 121 (same) ; Curteniua 
 V. Hoyt, 37 Mich. 583; Wagner v. Meety, 69 Mo. 150; State v. 
 Saline County Court, 51 Mo. 350, 11 Am. Rep. 454; Newmeyer v. 
 Missouri & M. R. Co., 52 Mo. 81, 14 Am. Rep. 394; North v. Platte 
 County, 29 Neb. 447, 26 L. R. A. 395, 45 N. W. 692 (relief defeated 
 by laches); List v. City of Wheeling, 7 W. Va. 501; Lynch v. East- 
 ern, L. F. & M. R. Co., 57 Wis. 430, 15 N. W. 743, 825; Whiting 
 V. Sheboygan etc. R. Co., 25 Wis. 167, 3 Am. Rep. 30; and cases cited 
 in the following notes. 
 
 49 Hodgman v. Chicago & St. P. Ry. Co., 20 Minn. 48 (Gil. 36); 
 Harrington v. Town of Plainview, 27 Minn. 224, 6 N. W. 777; Hamil- 
 ton V. Village of Detroit, 85 Minn. 83, 88 N. W. 419. "It can re-
 
 623 INJUNCTION; MUNICIPAL CORPORATIONS. § 349 
 
 scope of this work to discuss the grounds on which 
 various attempted issues of railway aid bonds have 
 been held invalid. Any failure to comply substantially 
 with the terms of the constitution or statute authoriz- 
 ing their issuance and regulating the manner thereof 
 will warrant the exercise of the restraining power of 
 a court of equity.^" Injunction is also properly granted 
 if the terms and conditions prescribed by the voters of 
 the town in making their grant of aid have not been 
 complied with by the recipient^^ 
 
 main no longer a question whether the restraining power of equity 
 should be exercised to prevent abuses of, and deviations from, the 
 Bpecial power conferred upon the municipal officers in the execution 
 and delivery of such negotiable bonds. If the tax-payers and real 
 parties in interest have not the remedy by injunction, then there 
 exists none whatever for the wrong. It becomes an evil wholly 
 without prevention or redress by any process known to the law. 
 The court is therefore of the opinion that the writ of injunction will 
 issue in such a case, not only to give effect to the safeguards and 
 restraints imposed by the legislature or the constitution of the 
 state, but also to enforce the terms and conditions prescribed by the 
 voters of the town": Lawson v. Schnellen, 33 "Wis. 288, 294. If the 
 bonds are void in the hands of innocent holders, the question whether 
 the existence of the defense in suits at law upon the bonds affords 
 an adequate remedy so as to preclude equitable relief is one on 
 which the authorities are at variance: See post, chapter on Cfin- 
 cellation of Instruments. The better opinion seems to be, that 
 this fact "is no sufficient reason why the tax-payers of the cor- 
 poration should not have the right to call upon a court of equity 
 to prevent them [the securities] from being issued, and thus avoid 
 the threatened wrong, and provide a remedy which will at once 
 reach the whole mischief, secure the rights of all, both for the pres- 
 ent and the future, and thus avoid a multiplicity of suits." Lynch- 
 burg & R. St. Ry. Co. V. Danieron, 95 Va. 545, 28 S. E. 951. To the 
 effect that tax-payers may be estopped by acquiescence to question 
 such bonds, see Schmitz v, Zeh, 91 Minn. 290, 97 N. W. 1049. 
 
 50 See Hodgman v. Chicago & St. P. R, Co., 20 Minn. 48, 20 Gil. 
 36; English v. Smock, 34 Ind. 115, 7 Am. Rep. 215; Town of Clarka-, 
 dale V. Broadlus, 77 Miss. 667, 28 South. 954 (insufficient notice); 
 Wullenwaber v. Dunigan, 30 Neb. 877, 47 N. W. 420, 13 L. R. A. 
 811; Chestnutwood v. Hood, 68 111, 132, 
 
 51 Lawson v. Schnellen, 33 Wis. 288, 294; Wagner v. Meety, 69 
 Mo. 150; Wullenwaber v. Dunigan, 30 Neb. 877, 47 N. W. 420, 13
 
 i 350 EQUITABLE REMEDIES. 6ii4 
 
 § 350. Injunctions Against Exceeding Constitutional or 
 Statutory Limits of Indebtedness — In many of the states 
 it is provided in the constitution, statutes or city char- 
 ters that no municipal corporation shall incur indebted- 
 ness in excess of certain limits. Tax-payers have often 
 called upon the courts to prevent a violation of such 
 provisions. As a general rule, when it can be shown 
 that action is to be taken in disregard of such limits, 
 injunctive relief will be readily granted. Accordingly, 
 under the provisions as they exist in many states, when 
 it appears that contracts have been let which will en- 
 tail an excessive expenditure, an injunction will issue.^^ 
 A like principle often applies to the issuance of bonds, 
 tlie courts holding that an injunction is proper when 
 the amount of the issue exceeds the limit, and some- 
 times when the issue is for the purpose of taking up an 
 excessive debt.^^ One form of statute prohibits the in- 
 
 L. E. A. 811; Township of Midland v. County Board of Gage County, 
 37 Neb. 582, 56 N. W. 317 (the railroad to which aid was voted 
 assigned to another company; the county board was enjoined from 
 delivering the bonds to the vendee. "The electors of the town- 
 ship are entitled to stand on the very letter of their promise. If 
 they promised a donation to A if he would build a certain improve- 
 ment, it does not follow that B is entitled to the donation, though 
 he builds the improvement"); Nash v. Baker, 37 Neb. 713, 56 N. 
 W. 376 (same point). 
 
 52 Dorothy v. Pierce, 27 Or. 373, 41 Pac. 668; Wormington v. 
 Pierce, 22 Or, 606, 30 Pac. 450; O'Malley v. Borough of Olyphant, 198 
 Pa. St. 525, 48 Atl. 483; Honaker v. Board of Education, 42 W, Va. 
 170, 57 Am. St. Eep. 847, 24 S. E. 544, 32 L. E. A. 413; City of Spring- 
 iield v. Edwards, 84 111. 626; Scott v. City of Goshen, 162 Ind. 204, 
 70 N. E, 79. For an admirable discussion of the statutes, see Dillon, 
 Municipal Corporations, § 130ff. 
 
 03 Eogers v. Leseur Co., 57 Minn. 434, 59 N, W. 488; Eice v. 
 City of Milwaukee, 100 Wis. 516, 76 N. W. 341; Town of Winamac 
 V. Huddleston, 132 Ind. 217, 31 N. E. 561; Fowler v. City of Superior, 
 85 Wis. 411, 54 N. W. 800; Anderson v. Orient Fire Ins. Co., 88 Iowa, 
 579, 55 N. W. 348; City of Council Bluffs v. Stewart, 51 Iowa, 385, 
 1 N. W, 628; Dunbar v. Board of Commissioners, 5 Idaho, 407, 49 
 I'ac. 409; Cramptou v. Zabriskic, 101 U. S. GOJ, 25 L. E. A, 1U70;
 
 625 INJUNCTION; MUNICIPAL COKPOBATIONS. i 351. 
 
 curring of indebtedness for one year in anticipation of 
 the revenues of future years.^^ Under such provision, 
 however, it is not necessary to wait until the revenues 
 for the current year are collected before incurring the 
 debt^^ In granting relief in all of these cases the 
 courts will look to the real nature of the transaction, 
 and if the statute is really violated, a shallow expedient 
 for evasion will not bar an injunction.^* 
 
 § 351. Awarding Contracts — "Lowest Bidder" — Discrim- 
 inating in Favor of Union Labor — Another class of cases 
 where the remedy is awarded freely is where a contract, 
 although within the general powers of the municipality, 
 is improperly let because of some abuse of discretion 
 
 City of Ottumwa v. City Water Supply Co., 56 C. C. A. 219, 119 Fed. 
 315; Purcell v. City of East Grand Forks, 91 Minn. 486, 98 N. W. 
 351. In Kyes v. St. Croix Co., 108 Wis. 136, 83 N. W. 637, an in- 
 junction was issued because the ordinance authorizing the bonds 
 violated a statute in that no provision was made for providing funds 
 for paying the interest. 
 
 54 Webster v. Douglas Co., 102 Wis. 181, 72 Am. St. Kep. 870, 77 
 N. W. 885, 78 N. W. 451; Shinn v. Board of Education, 39 W. Va. 
 497, 20 S. E. 604; Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 
 249; Bradford v. City and County of San Francisco, 112 Cal. 537, 
 44 Pac. 912. And the rule holds, although the money be needed 
 for necessary current expenses: Sackett v. City of New Albany, 88 
 Ind. 473, 45 Am. Rep. 467. 
 
 55 Hanley v. Randolph Co. Court, 50 W. Va. 439, 40 S. E. 389; 
 City of Alpena v. Kelley, 97 Mich. 550, 56 N. W. 941. Sometimes 
 it is held proper for a city to contract for necessities for a period 
 covering a number of years, provided the amount to be paid annu- 
 ally does not exceed the limit: City of Valparaiso v. Gardner, 97 
 Ind. 1, 49 Am. Rep. 416. But see Putnam v. City of Grand Rapids, 
 5S Mich. 416, 25 N. W. 330. 
 
 56 Hoffman v. Board of Commissioners, 18 Mont. 224, 44 Pac. 973; 
 Reynolds v. City of Waterville, 92 Me. 292, 42 Atl. 553. In Ramsey 
 V. City of Shelbyville, 26 Ky. Law Rep. 1102, 83 S. W. 116, an 
 injunction was issued restraining the enforcement of an ordinance 
 accepting a library building and agreeing to pay $1,000 per year 
 for the support thereof. 
 
 Equitable Remedies, Vol. I — 40
 
 § 351 EQUITABLE iJEMEDlES. 61.'(i 
 
 or non-compliance with law. Such questions often 
 arise under constitutional or other provisions requiring 
 contracts to be let to the lowest bidder. These pro- 
 visions are of two kinds, and the distinction must be 
 carefully observed. Where it is declared that con- 
 tracts must be let to the "lowest bidder," no discretion 
 is left to the governing body, and if it appears that a 
 higher bidder has been allowed the preference, an in- 
 junction will issue at the instance of the tax-payer.^^ 
 On the other hand, under a frequent form of the statute 
 declaring that contracts shall be let to the "lowest 
 responsible bidder'' or to the "lowest and best bidder," 
 a large discretion is given, and an injunction will be 
 allowed only in a clear case of abuse.^* A result of 
 these provisions is that if certain described public work 
 is about to be done without a call for bids, or if a 
 proper advertisement is not made giving a description 
 of the w*ork and what will be required, or if the con- 
 tract is let before the expiration of the time designated 
 in the call for bids, an injunction will issue.^^ This is 
 
 57 Mueller v. Eau Claire County, 108 Wis. 304, 84 N. W. 430; 
 Holden v. City of Alton, 179 111. 318, 53 N. E. 556 (dictum). 
 
 58 Inge V. Board of Public Works, 135 Ala. 187, 93 Am. St. Eep. 
 20, 33 South. 678; Diamond v. City of Mankato, 89 Minn. 48, 93 
 N. W. 911; Downing v. Boss, 1 App. D. C. 251; Keith v. Johnson, 
 22 Ky. Law Eep. 947, 59 S. W. 487 (a case of awarding a franchise 
 which was required to be given to the highest and best bidder; the 
 principle is the same). In Times Pub. Co. v. City of Everett, 9 
 Wash. 518, 43 Am. St. Eep. 865, 37 Pac. 695, it was held that when 
 the contract is let to other than the lowest bidder, the contracting 
 egent should judicially find the facts which, in its judgment, render 
 the apparently lowest bid not the lowest in fact. 
 
 59 Follmer v. Nuckolls Co., 6 Neb. 204; Littler v. Jayne, 124 
 111. 123, 16 N. E. 374; Manly Bldg. Co. v. Newton, 114 Ga. 245, 40 
 8. E. 274; Schumm v. Seymour, 24 N. J. Eq. 143; Jones Bros. Hard- 
 ware Co. V. Erb, 54 Ark. 645, 17 S. W. 7, 13 L. E. A. 353; Mazet v. 
 City of Pittsburg, 137 Pa. St. 548,20 AtL 693; Mayor etc. v. Keyser, 
 72 Md. 106, 19 Atl. 706; Woodruff v. Welton (Neb.), 97 N. W. 1037. 
 See, also, Diamond v. City of Mankato, 89 Minn. 48, 93 N. W. 911;
 
 627 INJUNCTION; MUNICIPAL CORPORATIONS. S 35A 
 
 a necessary consequence, for otherwise the statutes 
 could be easily evaded. The motive of the tax-payer in 
 bringing the suit is immaterial, provided he can show 
 a case of injury to himself as a tax-payer. Conse- 
 quently, an unsuccessful bidder may be and often is 
 the plaintiff.«» 
 
 Cases involving the same or similar principles arise 
 when a town or city, by ordinance or otherwise, at- 
 tempts to discriminate in favor of union labor. Where 
 there is a provision requiring contracts to be let abso- 
 lutely to the lowest bidder, the principle stated above 
 of course controls.^^ Where discretion is given, proof 
 of the fact that discrimination has been made for that 
 reason will be sufficient to show abuse of discretion 
 and to warrant an injunction.^^ And even when there 
 is no provision as to bidders, if a contract is let un- 
 der an ordinance declaring that contracts shall be let 
 only with union labor provisions, injunctive relief will 
 be awarded.*'^ The theory is that the ordinance be- 
 ing void, any contract made under it must also of 
 necessity be void. The reasons for holding the ordi- 
 nance void, and which are additional to those which 
 apply to tax-payers' suits in general, are that an un- 
 lawful discrimination results, and that a monopoly is 
 fostered ; both of these results are contrary to the policy 
 of the law. 
 
 Le Tourney v. Hugo, 90 Minn. 420, 97 N. W. 115; City of Chicago 
 V. Mohr (111.), 74 N. E. 1056 (permitting changes to be made after 
 bids were opened). 
 
 60 Times Pub. Co. v. City of Everett, 9 Wash. 518, 43 Am. St. Rep. 
 865, 37 Pac. 695; Holden v. City of Alton, 179 111. 318, 53 N. E. 
 556; Chippewa Bridge Co. v. City of Durand (Wis.), 99 N. W. 603. 
 
 61 Holden v. City of Alton, 179 111. 318, 53 N. E, 556 (dictum). 
 
 62 Holden v. City of Alton, 179 111. 318, 53 N. E. 556; Adams v. 
 Brenan, 177 111. 194, 69 Am. St. Rep. 222, 52 N. E. 314, 42 L. K. A. 
 718. 
 
 63 City of Atlanta v. Stein, 111 Ga. 789, 36 S. E. 932, 51 L. E. A. 
 335.
 
 S 352 EQUITABLE EEMEDIES. 628 
 
 § 352. Injunctions Against Removal of County Seats. — 
 Tax-pajers frequently have sought to invoke the aid of 
 equity to prevent the removal of a county seat. In a 
 sense, this is a political matter, but on the other hand, 
 it may involve a waste of a large sum of money and 
 thus be a great and direct injury to the tax-payers. The 
 tiendency of the modern authorities, therefore, is to 
 allow an injunction when it appears that the illegal 
 removal will result in a waste of public funds.^* Ap- 
 plying this principle, injunctions are allowed when the 
 election authorizing the removal is void because of fail- 
 ure to take the proper preliminary steps or because 
 not authorized by statute.®*^ For the same reason, 
 when the removal is legal, an injunction will issue to 
 
 64 In Stuart v. Bair, 8 Baxt. 141, this principle la laid down. 
 In Lanier v. Padgett, 18 Fla. 842, the tax-payers were allowed relief 
 because the "proceeding might involve them and the whole people 
 of the county in great expense and confusion, and jeopardize the 
 titles to property." See, also, Eickey v. Williams, 8 Wash. 479, 
 36 Pac. 480; Way v. Fox, 80 N. W. 405, 109 Iowa, 340; Board of 
 Supervisors y. Buckley (Miss.), 38 South. 104; Lindsay v. Allen 
 (Tenn.), 82 S. W. 178; Mitchell v. Lasseter, 114 Ga. 275, 40 S. E. 
 287. 
 
 65 Eickey v. Williams, 8 Wash, 479, 36 Pac, 480; Todd v. Eustad, 
 43 Minn. 500, 46 N. W. 73, In some jurisdictions it is held, con- 
 trary to the general rule as to elections, that an injunction will issue 
 to prevent the calling or holding of an unauthorized county seat 
 •lection: Solomon v. Fleming, 34 Neb. 40, 51 N. W. 304; Streissguth 
 v. Geib, 67 Minn. 360, 69 N. W, 1097. The better rule would seem 
 to be that the equity court should not interfere with the election. 
 When the court takes jurisdiction in such matters it is asserting a 
 right to hear election contests, which are not a subject of equitable 
 •ognizance: People v. Board of Supervisors, 75 Cal, 179, 16 Pac. 
 776; Caruthers v. Harnett, 67 Tex, 127, 2 S. W, 523. See chapter 
 &a Public Officers, ante, § 331, In Washington it is held that an 
 injunction will issue to prevent removal when there has been fraud 
 is counting the votes: Krieschel v. Board of Snohomish County 
 Commissioners, 12 Wash. 428, 41 Pac. 186; but mere errors in count- 
 ing will not be sufficient to warrant the relief: Parmeter v. Bourne, 
 8 Wash. 45, 35 Pac. 586, 757.
 
 629 INJUNCTION; MUNICIPAL COKPORATIONS. § 353 
 
 prevent the erection of an expensive county building 
 at the old site.^* 
 
 § 353. Miscellaneous Illustrations Whenever a city's 
 
 money is about to be paid or used for a purpose not 
 authorized by law or under a contract ultra vires for 
 any reason, or is to be paid wrongfully, a tax-payer 
 will be allowed an injunction.^'^ As a common example, 
 such relief will be granted when public funds are to be* 
 used ultra vires for purposes of entertainment of vis- 
 es Wells V. Ragsdale, 102 Ga. 53, 29 S. E. 165. 
 
 67 A tax-payer has been allowed an injunction in the following 
 coses, the purposes for which the money was intended being held 
 to be improper: Against paying an attorney under an illegal con- 
 tract for the collection of taxes: Storey v. Murphy, 9 N, D. 115, 
 81 N. W. 23; Grannis v. Board of Commissioners, 81 Minn. 55, 83 
 N. W. 495; Frederick v. Douglas Co., 96 Wis. 411, 71 N. W. 798; 
 but not to annul the contract: Board of Commissioners of Wayne 
 Co. V. Dickinson, 153 Ind. 682, 53 N. E. 929. Against spending 
 money ultra vires for a dispensary for the sale of liquor: Leesburg 
 V. Putnam, 103 Ga. 110, 68 Am. St. Eep. 80, 29 S. E. 602; McCullough 
 V. Brown, 41 S. C. 220, 19 S. E. 458, 23 L, E. A. 410. Against pay- 
 ing a water company, under an illegal contract extending over a 
 number of years: Flynn v. Little Falls E. & W. Co., 74 Minn. 180, 
 77 N. W. 38, 78 N. W. 106. Against paying a reward, ultra vires, 
 for the arrest of a defaulting official: Patton v. Stephens, 14 Bush, 
 324. Against illegally using highway fund for waterworks: Savidge 
 V. Village of Spring Lake, 112 Mich. 91, 70 N, W. 425. Against 
 paying a collusive judgment: Beyer v. Town of Crandon, 98 Wis. 
 306, 73 N. W. 771; Nevill v. Clifford, 55 Wis. 161, 12 N. W. 419. 
 Against contract making an illegal exemption from taxation: Altgelt 
 V. City of San Antonio, 81 Tex. 447, 17 S. W. 75, 13 L. E. A. 383. 
 Against publishing delinquent tax list in paper not a newspaper: 
 Sinclair v. Commrs. of Winona Co., 23 Minn. 404, 23 Am. Eep. 694. 
 See Dillon on Municipal Corporations, § 914ff. But see Normand v. 
 Otoe Co., 8 Neb. 18. In general, see Daviess Co. v. Goodwin, 25 
 Ky. Law Eep. 1081, 77 S. W. 185. For an instance of the remedy 
 of cancellation granted at suit of a tax-payer, see Bowman v. Frith 
 (Ark.), o4 S. W. 709. By statute in Wisconsin, a tax-payer has been 
 allowed to maintain suit to recover money paid by a county with- 
 out authority: Estcll v. Knight, 117 Wis. 540, 94 N. W. 290. See, 
 also, ante, end of note 25.
 
 S 353 EQUITABLE KEMEDIES. 630 
 
 itors or to aid charitable associations.^^ Frequently, 
 statutes declare that public officers shall not be inter- 
 ested in public contracts, and under such provisions, 
 an injunction will be granted if a violation is shown. ^^ 
 Likewise, where the object is illegal, an injunction will 
 issue to prevent the issuance or payment of warrants,'^*^ 
 or the execution of a mortgage or bonds.'^^ 
 
 Upon the same principle, a tax-payer may enjoin the 
 improper use of public propertyJ^ Such use involves 
 both a breach of trust and a direct pecuniary injury. 
 Often it results in more — in a direct inconvenience to 
 the tax-payer. 
 
 68 Black V. Common Council of City of Detroit, 119 Mich. 571, 78 
 N. W. 660; Austin v. Coggeshall, 12 R. I. 329, 34 Am. Rep. 648; 
 State V. City of New Orleans, 50 La. Ann. 880, 24 South. 666. 
 
 69 McElhinney v. City of Superior, 32 Neb. 744, 49 N. W. 705; 
 Weitz V. Independent Dist. of Des Moines, 87 Iowa, 81, 54 N. W. 
 70; Alexander v. Johnson, 144 Ind. 82, 41 N. E. 811; Miller v. 
 Sullivan, 32 Wash. 115, 72 Pac. 1022; Nuckols v. Lyle, 8 Idaho, 589, 
 70 Pac. 401. 
 
 70 Ackerman v. Tbummel, 40 Neb. 95, 58 N. W. 738; Russell v, 
 Tate, 52 Ark. 541, 20 Am. St. Rep. 193, 13 S. W. 130, 7 L. R. A. 180. 
 
 71 Vaughn v. Board of Commissioners of Forsyth Co., 118 N. C. 
 636, 24 S. E. 425; Bolton v. City of Antonio (Tex. Civ. App.), 21 
 S. W. 64; Mayor etc, v. Gill, 31 Md. 375. 
 
 72 Thus, it has been held that a tax-payer may enjoin the use of 
 a school building for religious or other private purposes: Scofield 
 V. Eighth School Dist., 27 Conn. 499; Lewis v. Bateman, 26 Utah, 
 434, 73 Pac. 509; Spencer v. School Dist., 15 Kan. 259, 22 Am. Rep. 
 268. In the first case the court said: "It is quite obvious that 
 more or less injury mast arise, not merely from the use of the 
 building and its furniture, but from deranging the furniture, books 
 and stationery belonging to the school, and by materially increasing 
 the risk of destroying the house by fire." "But the value of the 
 
 right .... cannot be measured by the mere pecuniary injury 
 
 It is more correct to estimate it by the value of the building, if it 
 was to b« rented for the purposes for which it is used gratuitously." 
 "And we know of no principle that will justify the misappropriation 
 of trust property for any purpose whatever." See, also, Nerlien 
 V. Village of Brooten (Minn.), 102 N. W. 867 (use of town hall for 
 commercial purposes enjoined). Likewise, an injunction will is?no
 
 631 INJUNCTION; MUNICIPAL CORPOKATIONS. § o53 
 
 In some jurisdictions the courts have refused to en- 
 join an act manifestly illegal when it has seemed more 
 inequitable to grant than to refuse an injunction.'^* 
 Such cases are of rare occurrence, and must depend upon 
 their own facts. Occasionally the doctrine of laches 
 is applied to these suits ;^* but it would seem that 
 
 to prevent the unlawful removal of a school-house: McLaiu v. Mari- 
 cle, 60 Neb. 353, 83 N. W. 85. But see Parody y. School Dist., 15 
 Neb. 514, 19 N. W. 633. A tax-payer may enjoin a county from 
 building a court-house on a city lot dedicated to park purposes, 
 although the city consents: Mclntyre v. Board of Commissioners of 
 El Paso Co., 15 Colo. App. 78, 61 Pac. 237. He may also enjoin the 
 illegal sale of public property: Willard v. Comstock, 58 Wis. 565, 
 46 Am. Eep. 657, 17 N. W. 401. See Davenport v. Buffington, 97 
 Fed. 234, 38 C. C. A. 453. In Sherburne v. City of Portsmouth (N. 
 H.), 58 Atl. 38, a tax-payer was allowed an injunction to restrain a 
 common council from granting the use of a public common to in- 
 dividuals for a baseball park. . See, however, Davidson v. Mayor 
 etc. of Baltimore, 96 Md. 509, 53 Atl. 1121, where it was held that 
 a tax-payer cannot enjoin officers from changing use of a school 
 building from an English-German school to a colored high school, 
 without showing special damage. See, also. Amusement Syndicate 
 Co. V. City of Topeka, 68 Kan. 801, 74 Pac. 606; Bryant v. Logan 
 (W. Va.), 49 S. E. 21 (tax-payer cannot enjoin unless specially in- 
 jured); Village of Eiverside v. MacLean, 210 111. 308, 102 Am. St, 
 Eep. 164, 71 N. E. 408 (owners of lots adjoining a tract dedicated 
 for a public park may enjoin the municipality from constructing a 
 highway through the park, without showing special damage), citing 
 many cases. 
 
 73 Ebert v. Langlade Co., 107 Wis. 569, 83 N. W. 942; Brasher v. 
 Miller, 114 Ala. 485, 21 South. 467; Farmer v. City of St. Paul, 65 
 Minn. 176, 67 N. W. 990, 33 L. E. A. 199. In this case the court 
 eaid: "While it is true that, upon grounds of sound public policy, 
 the doctrine of ult7-a vires is applied with greater strictness to 
 municipal than to private corporations, and that in this state a 
 tax-payer may enjoin an unauthorized appropriation of public money, 
 yet in cases where the proposed appropriation is only technically 
 illegal, and it would be more inequitable to grant the injunction 
 than to refuse it, it may be refused." In Appleton Water Worka 
 Co. V. City of Appleton, 116 Wis. 363, 93 N. W. 262, it was said 
 that this principle should be considered only in cases of extreme 
 doubt. 
 
 74 Tash V, Adams, 10 Cush. 252; Mahou v. City of New Orleans, 
 52 La. Ann. 1226, 27 South. 650.
 
 { 354 EQUITABLE EEMEDIES. 632 
 
 generally the doctrine is inapplicable, especially if the 
 tax-payer acts promptly upon receiving information.'^^ 
 An injunction, it has been held, will not be granted 
 to a tax-payer to restrain the enforcement of a void 
 municipal ordinance, when the case is not brought 
 within the principles laid down above,"^* 
 
 § 354. Relief Against Ordinances Injuring the Individ- 
 ual in a Capacity Other than that of Tax-payer. — The prin- 
 ciple is generally, but not universally, accepted, that 
 the enforcement of a void municipal ordinance may be 
 enjoined, where an injunction is necessary for the pur- 
 pose of avoiding a multiplicity of suits,^^ or of prevent- 
 
 78 Storey v. Murphy, 9 N. D. 115, 81 N. W. 23; Black v. Common 
 CouncU of City of Detroit, 119 Mich. 571, 78 N. W. 660; Austin v. 
 Coggeshall, 12 E. I. 329, 34 Am. Kep. 648. 
 
 76 Field V. Village of Western Springs, 181 Dl. 186, 54 N. E. 929. 
 
 77 Davis V. Fasig, 128 Ind. 271, 27 N. E. 726; City of Eushville 
 V. Eushville Natural Gas Co., 132 Ind. 575, 28 N. E. 853, 15 L. E. A. 
 321; Brown v. Catlettsburg, 11 Bush (Ky.), 435; Shinkle v. City 
 of Covington, 83 Ky, 420; City of Newport v, Newport & C. Bridge 
 Co., 90 Ky. 193, 13 S. W. 720, 8 L. E. A. 484; South Covington etc. 
 Ky. Co. v. Berry, 93 Ky. 43, 40 Am. St. Eep. 161, 18 S. W. 1026, 15 
 L. E. A. 604; Sylvester Coal Co. v. City of St. Louis, 130 Mo. 323, 
 51 Am. St. Eep. 566, 32 S. W. 649; Third Ave. E. E. Co, v. Mayor, 
 54 N. Y. 159; United Traction Co, v. City of Watervliet, 35 Misc. 
 Eep. 392, 71 N. Y, Supp. 977. 
 
 In these cases the multiplicity of suits sought to be avoided con- 
 sisted in numerous prosecutions of the single complainant or hia 
 servants for numerous violations of the invalid ordinance. It was 
 once held in New York (West v. Mayor, 10 Paige, 539) that equity 
 would not assume jurisdiction in this class of cases until the com- 
 plainant had established his right by a successful defense in at least 
 one of the actions at law. See 1 Pom, Eq. Jur., § 254, note, where 
 it is shown that this case is irreconcilable with the later case of 
 Third Ave. E. E. Co. v. Mayor, 54 N. Y. 159. It is held elsewhere 
 that the rule in West v. Mayor cannot apply under the blending of 
 law and equity in the code system: Sylvester Coal Co. v. City of 
 St. Louis, 130 Mo. 323, 51 Am. St. Eep. 566, 32 S. W. 649. It is 
 followed, however, in Illinois: Chicago, B. & Q. E. Co. v. City of
 
 633 INJUNCTION; MUNICIPAL CORPORATIONS. S 354 
 
 ing irreparable injury to private riglits.''^* Multiplicity 
 of suits may be a ground for the injunction either when 
 a large group of persons are threatened with prosecu- 
 tion for violation of the invalid ordinance,'^^ or numer- 
 ous prosecutions are begun or threatened against a 
 single person.*" Some cases, however, deny the right 
 to equitable interference, on the ground that the com- 
 
 Ottawa, 148 111. 397, 36 N. E. 80; Poyer v. Tillage of Des Plaines, 123 
 111. Ill, 5 Am. St. Rep. 494, 13 N. E, 819. 
 
 It seems that when the question is not of the validity of the 
 ordinance, but of its application to the complainant, injunction will 
 not be granted unless, perhaps, to avoid a multiplicity of prosecu- 
 tions: Ludlow & C. Coal Co, v. City of Ludlow, 102 Ky. 354, 43 S. W. 
 435. 
 
 78 Des Moines City R. Co. v. City of Des Moines, 90 Iowa, 770, 
 58 N. W. 906, 26 L. R. A. 767; McFarlain v. Town of Jennings, 106 
 La. 541, 31 South, 62; Coast Co, v. Borough of Spring Lake (N. J.), 
 36 Atl, 21; United Traction Co, v. City of Watervliet, 35 Misc. Rep. 
 392, 71 N, Y, Supp. 977; City of Austin v, Austin City Cem- 
 etery Assn., 87 Tex. 330, 47 Am, St, Rep. 114, 28 S. W. 528: Bristol 
 Door & Lumber Co. v, Bristol, 97 Va. 304, 75 Am. St. Rep. 783, 33 S. 
 E, 588; City of Atlanta v. Gate City Gaslight Co., 71 Ga, 106; 
 Cicero Lumber Co, v. Town of Cicero, 176 111. 9, 68 Am. St. Rep. 
 155, 51 N. E, 758, 42 L. R, A. 696; City of Roanoke v. Boiling, 101 
 Va. 182, 43 S. E, 343; Old Colony Trust Co. v. City of Wichita, 123 
 Fed, 762; Glucose Refining Co. v. City of Chicago (111.), 138 
 Fed, 209. In Maryland, any party whose interests are injuriously 
 affected by a void ordinance may enjoin its enforcement: City of 
 Baltimore v, Radecke, 49 Md. 217, 33 Am. Rep. 239 (ordinance within 
 general grant of power, but clearly unreasonable and oppressive) ; 
 Deems v. City of Baltimore, 80 Md. 164, 45 Am. St, Rep. 339, 30 
 Atl. 648, 26 L, R. A. 54 (milk inspection ordinance). An injunction 
 will not issue when the enforcement will amount to a mere trc<^pnss 
 for which there is an adequate remedy at law: Town of Orange City 
 V, Thayer (Fla,), 34 South. 573. 
 
 79 City of Chicago v. Collins, 175 111, 445, 67 Am. St. Rep. 1.'l:4, 
 51 N. E. 907, 49 L, R. A, 408; Wilkie v. City of Chicago, 188 III. 
 444, 80 Am, St. Rep. 182, 58 N, E, 1004; Glucose Refining Co. v. City 
 of Chicago, 138 Fed. 209; Spiegler v. City of Chicago (111.), 74 N. 
 E, 718. See Pom. Eq. Jur., § 254 et seq., where the subject ia ex- 
 amined at large. 
 
 80 See cases fsupru, note 77.
 
 § 354 EQUITABLE REMEDIES. 634 
 
 plainant's defense to the prosecution affords him an 
 adequate remedy at law.^^ 
 
 Relief has been more frequently denied against the 
 enforcement of penal ordinances on the ground that the 
 proceedings for their enforcement were of a criminal 
 or quasi criminal nature, and that equity declines to in- 
 terfere with the administration of the criminal laws.^^ 
 
 81 See Devron v. First Municipality, 4 La. Ann. 11; Levy v. City 
 of Sbreveport, 27 La. Ann. 620; Cohen v. Commissioners of Golds- 
 Loro, 77 N, C. 2; Wardens v. Washington, 109 N. C, 21, 13 S. E. 
 700; Scott V. Smith, 121 N. C. 94, 28 S. E, 64. See, also, the Illinois 
 cases supra, in note 77. 
 
 Eeasons for this view are stated with some fullness in the opinion 
 from which the following extract is taken: "If the ordinance is 
 invalid, we cannot assume that the court in which appellee may be 
 tried for its violation will not so hold, if this question is presented; 
 nor can we presume that, if he is acquitted on this ground, the offi- 
 cer of the city will continue to harass him with further arrests; 
 so that, if his own contention is true, he is in no danger of suffering 
 the irreparable injury of which he complains; nor would he, under 
 such circumstances, be subjected to a multiplicity of suits. It would 
 doubtless be convenient for appellee to have the judgment of the 
 court upon the validity of the ordinance before submitting himself 
 to liability for accumulated penalties; but, if arrested and con- 
 victed, and he chooses to take the chances of ultimately defeating 
 the ordinance upon the ground of its invalidity, that is no ground 
 for equitable interference": City of Denver v. Beede, 25 Colo. 172, 
 54 Pac. 624. To the present writer, the logic of the last sentence 
 seems as faulty as its grammar. At all events, deliverance from 
 this too common form of persecution is often much more than a 
 matter of "convenience" to its victim, as the facts of reported cases 
 abundantly show. 
 
 82 Poulk V. City of Sycamore, 104 Ga. 24, 30 S. E. 417, 41 L. R. 
 A. 772 (ordinance penalizing sale of intoxicating liquors) ; Phillips 
 V. Mayor, 61 Ga. 386 (same); Garrison v. City of Atlanta, 68 Ga. 64; 
 Mayor etc. of City of Moultrie v. Patterson, 109 Ga. 370, 34 S. E. 
 600; Coykendall v. Hood, 36 App. Div. 558, 55 N. Y. Supp. 718; Wade 
 V. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 668. See, however, 
 Sylvester Coal Co. v. City of St. Louis, 130 Mo. 323, 51 Am. St. 
 Kep. 566, 32 S. W. 649, holding that "the doctrine that criminal 
 statutes cannot be tested or their enforcement restrained in the 
 civil courts has no application to the case. Municipal ordinances,
 
 635 INJUNCTION; MUNICIPAL COKPOEATIONS. § 354 
 
 It is believed, however, that in applying this rule the 
 courts have sometimes lost sight of its qualification, 
 which is as well settled as the rule itself, that a court 
 of equity may in a proper case interfere by injunction 
 to restrain any act or proceeding, whether connected 
 with crime or not, which tends to the destruction or 
 impairment of property or property rights.^^ 
 
 The general principle stated at the beginning of this 
 section has found a frequent application, of late years, 
 in the cases where an injunction has been sought 
 against the enforcement or passage of ordinances fixing 
 the rates of gas companies, water companies, or other 
 "public utilities," or other municipal legislation impair- 
 ing the obligation of the contract contained or implied 
 
 though penal, are not criminal statutes. They are quasi criminal 
 in form, but not so regarded in procedure." See, also, post, chapter 
 XXI. 
 
 83 Glucose Kefining Co. v. City of Chicago (111.), 138 Fed. 209 
 (smoke ordinance) ; United Traction Co. v. City of Watervliet, 
 35 Misc. Rep. 392, 71 N. Y. Supp. 977 (against enforcement of ordin- 
 ance limiting speed of street-cars to six miles an hour) ; Dobbins v. 
 City of Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18; City of Atlanta v. 
 Gate City Gaslight Co., 71 Ga. 106 (against enforcement of ordinance 
 tending to the destruction of a franchise for the use of streets by a 
 gas company) ; City of Austin v. Austin City Cemetery Assn., 87 Tex. 
 330, 47 Am. St. Eep. 114, 28 S. W. 528. In the last case an injunction 
 was sought by a cemetery association against the enforcement of an 
 ordinance making it a "misdemeanor" for anyone to bury human 
 bodies in certain territory comprising the plaintiff's burial ground. 
 The court says in part in its able opinion: "It is clear to us ... . 
 that the effect of the ordinance is such that, if its enforcement be 
 not restrained, it may result in a total destruction of the value of 
 
 appellee's property for the purpose for which it was acquired 
 
 No one, we apprehend, without some considerable inducement, will 
 do an act which may cause him to be arrested and prosecuted, how- 
 ever clear he might be in his own mind that the act constituted no 
 violation of the criminal law As long as the ordinance re- 
 mains undisturbed, it acts in terrorem, and practically accomplishes 
 a prohibition against the burial of the dead within the limits of the 
 city of Austin, save in the excepted localities," etc
 
 § 354 EQUITABLE EEMEDIES. 63(i 
 
 in the complainant's franchise, or conflicting with other 
 constitutional guaranties. These cases chiefly have to 
 do with questions of constitutional law; but the appro- 
 priateness of the remedy by injunction seems to have 
 been conceded in most of them,^* and has been expressly 
 decided in many.^^ 
 
 84 See Capital City Gaslight Co. v. City of Des Moines, 72 Fed. 
 829; Cleveland City Ey. Co. v. City of Cleveland, 94 Fed. 385; Loa 
 Angeles City Water Co. v. City of Los Angeles, 103 Fed. 711, 738, etc.; 
 Penn Mutual Life Ins. Co. v. City of Austin, 168 U. S. 685, 18 Sup. 
 Ct. 223 (right to injunction lost by five years' laches); Spring Valley 
 Water Works v. San Francisco, 82 Cal, 286, 16 Am. St. Eep. 116, 
 22 Pac. 910, 1046, 6 L. E. A. 756; and eases cited in Los Angeles 
 City Water Co. v. City of Los Angeles, 103 Fed. 711, 716. See, also, 
 Little Falls Elect, & Water Co. v. City of Little Falls, 102 Fed. 663; 
 Spring Valley Water Works v. City and County of San Francisco, 
 124 Fed. 575; Palatka Water Works v. City of Palatka, 127 Fed. 161; 
 City of Chicago v. Eogers Park Water Co., 214 111. 212, 73 N. E. 
 375. And the same result has been reached where the municipal 
 body has no power to fix rates: Mills v. City of Chicago, 127 Fed. 
 73L 
 
 85 In City of Walla Walla v. Walla Walla Water Co., 172 U, S, 
 1, 19 Sup. Ct. 77, 82, 43 L. ed. 341, injunction was sought against 
 the erection of competing waterworks by the city, in violation of 
 complainant's contract and franchise. The court, speaking of the* 
 remedy at law for the threatened breach of the contract, says: 
 "In the meantime great — perhaps irreparable — damage would have 
 been done to the plaintiff. What the measure of such damages 
 was would be exceedingly difiicult of ascertainment, and would 
 depend largely upon the question of whether the value of plaintiff's 
 plant was destroyed or merely impaired. It would be impossible 
 to say what would be the damage incurred at any particular mo- 
 ment, since such damage might be more or less dependent upon 
 whether the competition of the city should ultimately destroy, 
 or only interfere with, the business of the complainant." The 
 case of Southwest Missouri Light Co. v. City of Joplin, 101 Fed. 
 23, 33, was similar. In Los Angeles City Water Co. v. City of Los 
 Angeles, 88 Fed. 720, 748, the court says in regard to an ordi- 
 nance fixing water rates, when the state laws and constitution im- 
 pose severe penalties for charging more than the legal rates: ''The 
 ordinance, by reason of the severe pains and penalties which appar- 
 ently fortify it, is daily, hourly, and momentarily enforcing itself. 
 The defendants must either submit to the terms of the ordinance.
 
 637 INJUNCTION; MUNICIPAL CORPORATIONS. § 355 
 
 § 355. Injunctions Against "Wrongful Acts in General.— 
 Where municipal corporations, or their officers, 
 threaten to do some wrongful act which will directly 
 injure an individual, such a party may, if the case 
 comes within some recognized head of equity jurisdic- 
 tion, restrain such action. Thus, where municipal au- 
 thorities wrongfully threaten to remove certain shade 
 trees from a street, the abutting owner may obtain an 
 injunction, his injury being irreparable.^® Likewise, 
 abutting owners have been allowed to enjoin the change 
 of a park into a highway, where the park had been dedi- 
 cated in conformity with a general building plan.®''^ A 
 few miscellaneous illustrations are appended in the 
 note.^* 
 
 or incur unusually onerous expenditures. It is reasonably certain 
 that if, with the ordinance standing, they were to undertake the 
 collection of rates in excess of those prescribed in the ordinance, 
 they would be resisted at every point by the consumers of water, 
 and thus be driven to innumerable actions at law. Besides, should 
 they, in any instance, succeed in collecting without an action a 
 kigher rate than the ordinance prescribes, it is equally certain 
 that they would thereby bring upon themselves protracted and 
 keavy litigation, having for its object forfeiture of their entire 
 eystem of works. Surely these injuries are irreparable, and actions 
 at law, so far from being adequate to the exigencies of the situa- 
 tion, are, as complainants, in their brief, forcibly put it, mere mock- 
 eries of a remedy." See, also, Los Angeles City Water Co. v. 
 City of Los Angeles, 103 Fed. 711, 738 (city threatens to enforce 
 constitutional provision for forfeiture of complainant's works if 
 •rdinance is disobeyed); New Memphis Gas & Light Co. v. City of 
 Memphis, 72 Fed. 952 (where injunction pendente lite granted 
 against ordinance fixing rates) ; Riverside & A. Ey. Co. v. City of 
 Biverside, 118 Fed. 736. 
 
 86 Mayor etc. of City of Frostburg v. Wineland, 98 Md. 239, 103 
 Am. St. Eep. 399, 56 Atl. 811. See, also, Burget v. Incorporated 
 Town of Greenfield, 102 Iowa, 432, 94 N. W. 933. 
 
 87 Village of Riverside v. Maclean, 210 111. 308, 102 Am. St. Rep. 
 164, 71 N. E. 408. 
 
 88 See Lerch v. City of Duhith, 88 MinTi. '20", 92 N. W. 1116; 
 Nebraska Telephone Co. v. City of i'leniout (Neb.), 99 N. W.
 
 § 355 EQUITABLE EEMEDIES. 638 
 
 811 (intorference with telephone poles and wires enjoined) ; West 
 Jersey & S. R. Co, v. Waterford Tp., 64 N. J. Eq. 157, 55 AtL 
 157; Eochester & L. O. Water Go. v. City of Rochester, 176 N. Y. 
 36, 68 N. E. 117; Schooling v. City of Harrisburg, 42 Or. 494, 71 
 Pac. 605; Belington & N. R. Co. v. Town of Alston, 54 W. Va. 597, 
 46 8. E. 612 (injunction against tearing up railroad tracks).
 
 639 INJUNCTION AGAINST TAXATION. 
 
 CHAPTER XIX. 
 
 INJUNCTION" AGAINST TAXATION; AND AGAINST 
 SPECIAL OR LOCAL ASSESSMENTS. 
 
 ANALYSIS. 
 
 § 356. In general. — Two classes of states. 
 
 § 357. Principles of general application — Irregularities — Ten- 
 der. 
 
 5§ 358-362. First type. 
 
 § 359. Same; Inadequacy of the legal remedy — Taxes on per- 
 sonal property. 
 
 § 360. Same; Fraud. 
 
 § 361. Same; Multiplicity of suits. 
 
 § 362. Same; Cloud on title. 
 
 § 363, Second type. 
 
 § 364. Special or local assessments. 
 
 §§ 365-378. United States courts. 
 
 § 365. Federal taxes. 
 
 § 366. State taxes; federal jurisdiction. 
 
 § 367. Adequate remedy in state courts. 
 
 §§ 368-375. Grounds of the equitable jurisdiction. 
 
 § 369. Personal property. 
 
 § 370. Irreparable injury. 
 
 § 371. Valuation resulting in unjust discrimination. 
 
 § 372. Multiplicity of suits. 
 
 § 373. Cloud on title. 
 
 § 374. State tax in violation of contract. 
 
 § 375. Injunction warranted by state laws. 
 
 § 376. Tender. 
 
 § 377. Property in hands of federal receiver. 
 
 S 378. Special assessments. 
 
 § 379. Alabama. 
 
 § 380. Arizona. 
 
 §§ 381, 382. Arkansas. 
 
 § 382. Special assessments. 
 
 §§ 383,384. California. 
 
 § 384. Special assessments. 
 
 S§ 385,386. Colorado. 
 
 § 386. Special assessments. 
 
 § 387. Connecticut.
 
 EQUITABLE KEMEDIEfl, 640 
 
 { 388. Dolnware. 
 
 § 389. Florida. 
 
 il 390,391. Georgia. 
 
 § 391. Special assessments. 
 
 § 392. Idaho. 
 
 {§ 393-399. niinoia. 
 
 § 393. In general. 
 
 § 394. Illegality. 
 
 § 395. Illegal municipal taxea. 
 
 § 396. Illegal taxes; parties plaintiff. 
 
 § 397. Exempt property. 
 
 § 398. Fraudulent increase of assessment 
 
 § 399. Special or local assessments. 
 
 §§ 400-402. Indiana. 
 
 § 401. Tender of legal tax. 
 
 § 402. Special assessments. 
 
 |§ 403,404. Iowa. 
 
 § 404. Special assessments. 
 
 5§ 405-408. Kansas. 
 
 § 406. Parties. 
 
 § 407. Tender. 
 
 § 408. Special assessment!, 
 
 § 409. Kentucky. 
 
 § 410. Louisiana. 
 
 § 411. Maine. 
 
 il 412,413. Maryland. 
 
 § 413. Special assessments. 
 
 § 414. Massachusetts. 
 
 §1 415,416. Michigan, 
 
 § 416. Special assessments 
 
 |§ 417, 418. Minnesota, 
 
 § 418, Special assessments. 
 
 § 419. Mississippi. 
 
 |§ 420, 421. Missouri, 
 
 § 421. Special assessmenta, 
 
 § 422. Montana, 
 
 li 423,424. Nebraska. 
 
 § 424. Special assessments 
 
 § 425. Nevada. 
 
 § 426. New Hampshire. 
 
 S 427. New Jersey. 
 
 § 428, New Mexico. 
 
 §§ 429-431, New York, 
 
 § 430. Cloud on title, 
 
 I 431, Special assessments. 
 
 |§ 432,433. North Carolina.
 
 641 INJUNCTION AGAINST TAXATION. C 408 
 
 § 433. Special assessments. 
 
 § 434. North Dakota. 
 
 §1 435,436. Ohio. 
 
 § 436. Special assessments. 
 
 |§ 437-439. Oklahoma. 
 
 § 438. Increase of assessment. 
 
 § 439. Tender. 
 
 §§ 440, 441. Oregon. 
 
 § -^41. Special assessments. 
 
 § 442. Pennsylvania, 
 
 § 443. Ehode Island. 
 
 § 444. South Carolina. 
 
 §§ 445,446. South Dakota. 
 
 § 446. Special assessments. 
 
 § 447. Tennessee. 
 
 5§ 448,449. Texas. 
 
 § 44.9. Special assessments. 
 
 § 450. Utah. 
 
 §§ 451,452. Vermont. 
 
 § 452. Special assessments. 
 
 § 453. Virginia. 
 
 §§ 454, 455. Washington. 
 
 § 455. Special assessments. 
 
 §§ 456,457. West Virginia. 
 
 § 457. Special assessments, 
 
 S§ 458-163. Wisconsin. 
 
 § 459. Defects going to the validity of the assessment. 
 
 § 460. Defects not going to the validity of the assessment, 
 
 § 461. Cloud on title. 
 
 § 462. Payment or tender. 
 
 § 463. Special assessments. 
 
 § 464. Wyoming. 
 
 § 356. In General — Two Classes of States The rules 
 
 governing the issuance of injunctions to restrain the 
 collection of invalid taxes are far from uniform. In 
 general, the states may be divided into two classes, al- 
 though in but few of the states will all the rules be 
 found to agree. In states of the first type the juris- 
 diction depends upon the existence of some recognized 
 ground for general equitable relief, such as the preven- 
 tion of a multitude of suits, the removal of a cloud 
 
 Equitable Eemedies, Vol. I — 41
 
 g 357 EQUITABLE REMEDIES. 64ii 
 
 upon title, and the like. In states of the second type 
 the jurisdiction rests upon the illegality or invalidity 
 of the tax, and is independent of the existence of any 
 generally recognized ground for equitable relief. Ow- 
 ing to this great diversity and to the importance of the 
 subject, the rules in all of the several states will be ex- 
 amined separately. 
 
 § 357. Principles of General Application — Irreg^ularities — 
 Tender. — It is a principle of general application that 
 mere irregularities in the assessment are not sufificient 
 to warrant the interference of equity.^ The collection 
 of public revenue will not be prevented unless there is 
 some substantial defect which renders the tax invalid 
 as to the complainant. Public policy demands that no 
 needless restriction be placed upon the securing of the 
 necessary means for conducting the government. It is 
 also generally the rule that where a tax is valid in 
 part and invalid in part, no relief will be awarded un- 
 less a payment or tender is made of the portion ad- 
 mitted to be valid.^ This is an application of the 
 maxim that "he who seeks equity must do equity." In 
 some states it is held that such payment or tender is 
 merely a condition of relief, and that it need not be 
 made before suit.^ In others it is said that a mere aver- 
 
 1 It has been so held, e. g., in the federal courts, and in Arizona, 
 Arkansas, California, Illinois, Indiana, Kansas, Kentucky, Mary- 
 land, Michigan, Missouri, Nebraska, Oklahoma, Oregon, Pennsyl- 
 vania and Texas. See cases cited in notes to sections discussing 
 the rules in these jurisdictions. 
 
 2 It has been so held, e. g., in the federal courts, and in Alabama, 
 Arizona, Arkansas, California, Colorado, Florida, Indiana, Kansas, 
 Kentucky, Michigan, Mississippi, Montana, Nebraska, North Dakota, 
 Oklahoma, Oregon, Utah, Washington and Wisconsin. See cases 
 cited in notes to sections discussing the rules in these jurisdictions. 
 
 3 It is so held, e. g., in Florida, and it is probably the rule in 
 Missouri. See cases cited in notes to sections discussing the rules 
 in these states.
 
 643 INJUNCTION AGAINST TAXATION. §§ 358, 359 
 
 ment of readiness and willingness to pay is not suf- 
 ficient ; that the amount must be either paid or tendered 
 before suit* 
 
 § 358. First Type. — In states of the first type the mere 
 illegality of the tax is not ground for equitable relief. 
 "It must appear that the enforcement of the tax would 
 lead to a multiplicity of suits, or produce irreparable 
 injury; or if the property is real estate, throw a cloud 
 upon the title of the complainant, or there must be 
 some allegation of fraud, before the aid of a court of 
 equity can be invoked. There must in every case be 
 some special circumstance attending a threatened in- 
 jury of this kind, which distinguishes it from a common 
 trespass, and brings the case under some recognized 
 head of equity jurisdiction before the extraordinary 
 and preventive remedy of injunction can be invoked."^ 
 
 § 359. Same; Inadequacy of the Legal Remedy — Taxes on 
 Personal Property — The inadequacy of the legal remedy 
 is a fundamental ground of jurisdiction. In tax cases 
 this test is frequently applied to assessments upon per- 
 sonal property. Ordinarily, in states of this class, it is 
 held that there is an adequate remedy at law for in- 
 juries to personalty. If the officers of the law seize it 
 for non-payment of an invalid tax, they are liable in 
 trover or trespass, and damages are presumed to fully 
 compensate for any loss. Consequently it is stated 
 that in general an injunction will not issue to prevent 
 
 4 It has been so held in the federal courts and in Kansas. See 
 cases cited in notes to sections discussing the rules in these jurisdic- 
 tions. 
 
 5 Wells, Fargo & Co. v. Dayton, 11 Nev. 161. The leading case 
 of this type is Dows v. City of Chicago, 11 Wall. 108, 20 L. ed. 65.
 
 S 360 EQUITABLE EEMEDIES. 644 
 
 the collection of an invalid tax on personal property.® 
 Cases may arise, however, where the unauthorized in- 
 terference of the tax officer will work irreparable in- 
 jury, and in such cases injunctive relief is proper. 
 Thus, the unlawful seizure of railroad cars for non-pay- 
 ment of an invalid tax may work such an injury to 
 the company as to warrant the interposition of equity.'^ 
 Where the business of the owner will be seriously in- 
 terfered with or ruined by the enforcement of the tax, 
 equity may enjoin its collection; and such relief is au- 
 thorized where the destruction of a corporate franchise 
 is imminent.^ The application of the test of inade- 
 quacy of the legal remedy is not confined to cases of 
 personal property. It applies to cases of realty as 
 well.® 
 
 § 360. Same; Fraud. — In some of the states of this class 
 fraud appears to be a ground for relief.^^ Accordingly, 
 when officers, by a systematic, intentional and illegal 
 
 « It has been so held, e. fir., in the federal courts, and in California, 
 Colorado, Florida, Michigan, Minnesota, Nevada, North Carolina, 
 North Dakota, West "Virginia and Wisconsin. See cases cited in 
 notes to sections discussing the rules in these jurisdictions. 
 
 7 Southern Ky. Co. v. City of Asheville, 69 Fed. 359; City of 
 Detroit v. Wayne Circuit Judge, 127 Mich. 604, 8 Detroit Leg. N. 
 465, 86 N. W. 1032. 
 
 8 Osborn v. Bank of the United States, 9 Wheat. 738, 6 L. ed. 
 204. In some jurisdictions no recovery of invalid taxes paid is al- 
 lowed unless payment is made under duress. Where such a statute, 
 in connection with another imposing a penalty of fifty dollars per day 
 for non-payment, threatens injury to one upon whom an invalid 
 tax has been assessed, injunctive relief has been allowed: Stone v. 
 Bank of Kentucky, 174 U. S. 799, 19 Sup. Ct. 881, 43 L. ed. 1177; 
 First Nat. Bank v. City of Covington, 103 Fed, 523. 
 
 9 For an application to realty, see United States v. Eickert, 188 
 U. S. 432, 23 Sup. Ct. 478, 47 L. ed. 532. 
 
 10 Such seems to be the rule in the federal courts, and in Cali- 
 fornia, Michigan, Oregon and Wisconsin. See cases cited in notes 
 to sections discussing the rules in these jurisdictions.
 
 645 INJUNCTION AGAINST TAXATION. f 361 
 
 under-valuation of other property, make an unjust dis- 
 crimination against the complainant, an injunction 
 may issue.^^ The same relief is allowed when an as- 
 sessment is so excessive as to give rise to a presumption 
 of fraud.^2 Proof of discrimination must be clear and 
 convincing to warrant interference.^^ An assessment 
 is not fraudulent merely because of being excessive. 
 If the assessor has acted from proper motives, an in- 
 junction is not the proper remedy; but when he pur- 
 posely, or in reckless disregard of duty levies a tax 
 which discriminates against a tax-payer, equity may 
 grant relief.^* 
 
 § 361. Same: Multiplicity of Suits. — The avoidance of a 
 multiplicity of suits as a ground for equitable juris- 
 diction in tax cases has been so fully discussed else- 
 where^^ that a brief summary only is here called for. 
 The propriety of exercising this jurisdiction is seldom 
 denied in the cases belonging to Professor Pomeroy'a 
 "Second Class" — where the complainant, in the ab- 
 sence of equitable interference, is exposed to repeated 
 
 11 Louisville Trust Co. v. Stone, 107 Ted. 305, 46 C. C, A. 299, 
 Southern Ky. Co. v. North Carolina Corp. Com., 104 Fed. 700; Nash- 
 ville, C. & St. L. E. Co. V. Taylor, 86 Fed. 168; Walsh v. King, 
 74 Mich. 350, 41 N. W. 1080. The fraudulent omission of mort- 
 gages from the assessment has been held to be ground for relief: 
 Hamblin Eeal Estate Co. v. City of Astoria, 26 Or. 599, 40 Pac. 
 230; Smith v. Kelly, 24 Or. 464, 33 Pac. 642. A tax based upon aa 
 assessment "fraudulently and corruptly made, with the intentioa 
 of discriminating" against a party, may be enjoined: Pacific Postal 
 etc. Cable Co. v. Dalton, 119 Cal. 604, 51 Pac. 1072. 
 
 12 Oregon & C. E. Co. v. Jackson County, 38 Or. 589, 64 Pac. 
 307, 65 Pac. 369. 
 
 13 Louisville Trust Co. v. Stone, 46 C. C. A. 299, 107 Fed. 305; 
 and see § 371, infra. 
 
 14 Pioneer Iron Co. v. City of Negaunee, 116 Mich. 430, 74 N. W. 
 700. 
 
 15 See 1 Pom. Eq. Jur. (3d ed.), §§ 258-260, 265, 266, 270, and notes.
 
 (• 3*^1 EQUITABLE EEMEDIES. 646 
 
 litigation with the same defendant^ ^ — or in those of 
 the "Fourth Class," — where the single complainant 
 would be compelled to bring or defend numerous suits 
 against different parties, all involving the same ques- 
 tions of fact or law.^^ The exercise of the jurisdiction 
 
 16 Suits to enjoin collection of a tax, the invalidity of which 
 had been established at law, were upheld on this ground in Pater- 
 eon etc. E. K. Co. V. Jersey City, 9 N. J. Eq. 434; Bank of Ken- 
 tucky V. Stone, 88 Fed. 383; Union & Planters' Bank v. Memphis, 
 ]11 Fed. 561, 49 C. C. A. 455; see 1 Pom, Eq. Jur., § 253, notes 2 
 and _(^)' 
 
 But it has been held that the plaintiff must show that the 
 danger of repeated suits by the state is "a probable, and not possible 
 
 danger Whatever the rule may be in the case of natural 
 
 persons, the court will presume that a state is incapable of such a 
 vulgar passion, and, until the fact is shown to be otherwise, will 
 act on the assumption that a state will not bring any more suits 
 than are fairly necessary to establish and maintain its rights": 
 Pacific Exp. Co. v. Seibert, 44 Fed. 310; see 1 Pom. Eq. Jur. (3d 
 ed.), § 251%, note (b). 
 
 17 See 1 Pom. Eq. Jur. (3d ed.), § 261, note (b), "Class Fourth," 
 pp. 417, 418. A common instance is where a railroad or telegraph 
 company is exposed to tax suits in different counties, all involving 
 a common question; especially where such companies are assessed 
 by a state board on all of their property within the state, and pro- 
 portionate parts of this assessment are certified for collection to 
 the tax oflScials of the various counties in which the company oper- 
 ates: Union Pac. E. E. Co. v. McShane, 3 Dill. 303, Fed. Cas. No. 
 14,382, affirmed, 22 Wall. 444, 22 L. ed. 747; Union Pac. E. E. Co. 
 V. Cheyenne, 113 U. S. 516, 5 Sup. Ct. 601, 28 L. ed. 1098; Northern 
 Pac. E. E. Co. V. Walker, 47 Fed. 681; Western Union Tel. Co, v. 
 Poe, 61 Fed. 449, 453; Sanford v. Poe, 69 Fed. 546, 548, 16 C. C. A, 
 305, 60 L. E. A. 641; Western Union Tel. Co, v. Norman, 77 Fed, 
 13, 21; Eailroad & Telephone Cos. v. Board of Equalizers, 85 Fed, 
 302; Taylor- v, Louisville & N. E. E. Co., 88 Fed. 350, 31 C. C. A. 
 537; Coulter v. Weir, 62 C, C, A, 429, 127 Fed. 897; Philadelphia, W. 
 & B. E. Co. v, Neary, 5 Del. Ch. 600; Mobile & O. E, E, Co, v, 
 Moseley, 52 Miss. 127, 137; Chesapeake & O. E. E. Co. v. Miller, 
 19 W. Va. 408. Again, where a bank or other corporation is re- 
 quired by law to pay the taxes assessed on all of its shares, and 
 reimburse itself by withholding proportionate parts of the dividends 
 from its shareholders, it may enjoin an illegal tax, since its pay- 
 ment thereof would subject it to a suit by each shareholder: Cum- 
 mings V. Merchants' Nat. Bank, 101 U, S, 153, 25 L. ed. 903, and
 
 647 INJUNCTION AGAINST TAXATION. S 361 
 
 in the "Third Class" of Professor Pomeroy's analysis 
 is a question on which the cases are more evenly di- 
 vided. In this class, it will be remembered, "a num- 
 ber of persons have separate and individual claims and 
 rights of action against the same party, but all arise 
 from some common cause, are governed by the same 
 legal rule, and involve similar facts, and the whole mat- 
 ter might be settled in a single suit brought by all these 
 persons uniting as co-plaintiffs, or one of the persons 
 suing on behalf of the others, or even by one person 
 suing for himself alone."^^ The equity in this class 
 of cases arises from two considerations: first, the pub- 
 lic convenience and economy in determining, in a single 
 equitable issue, a question that, without such deter- 
 mination, might lead to innumerable trials of the same 
 question in separate suits at law; and secondly, the 
 practical failure of justice that must result from leav- 
 
 other cases cited; 1 Pom. Eq. Jur. (Sil ed.), § 261, p. 418. Contra, 
 see Equitable Guarantee & T. Co. v. Donahoe (Del.), 45 Atl. 5So, in 
 ] Pom. Eq. Jur., § 266, note (a). 
 
 18 1 Pom. Eq. Jur., § 245. Among the eases of this class sup- 
 I.'orting the jurisdiction are, Greedup v. Franklin County, 30 Ark. 
 101; Keese v. City of Denver, 10 Colo. 113, 15 Pac. 825 (special 
 assessment) ; Dumars v. City of Denver, 16 Colo. App. 375, 65 Pac. 
 580 (special assessment); Bode v. New England Inv. Co., 6 Dak. 
 499, 42 N. W. 658, 45 N. W. 197; Carlton v. Newman, 77 Me. 408, 1 
 Atl. 194; Sherman v. Benford, 10 E. I. 559; MeTwiggan v. Hunter, 
 18 E. I. 776, 30 Atl. 962, 2 Ames Cas. Eq. Jur., 71, 73, and notes; 
 Quimby v. Wood, 19 E. I. 571, 35 Atl. 149; McMickle v. Hardin, 
 25 Tex. Civ. App. 222, 61 S. W. 322 (but no injunction after suits 
 have already been begun for the collection of taxes); McClung 
 V. Livesay, 7 W. Va. 329; Doonan v. Board of Education, 9 W. Va. 
 246; Corrothers v. Board of Education, 16 W. Va, 527; Williams v. 
 Grant County Court, 26 W. Va. 488, 53 Am. Eep. 94 (an exhaustive 
 discussion of the subject); Blue Jacket Co. v. Scherr, 50 W. Va. 
 533, 40 S. E. 514. In states of the second type, also, where the 
 mere illegality of the tax is a ground for its injunction at the suit 
 of the single plaintiff, the avoidance of a multiplicity of suits is 
 recognized as a further ground: See infra, Illinois and MissourL 
 See, also, cases collected in 1 Pom. Eq. Jur., § 260.
 
 fi 361 EQUITABLE EEMEDIES. 648 
 
 ing each member of the community to obtain redress 
 at law for his small share of the injury suffered by all 
 alike. To the vast majority of tax-payers, a suit to 
 recover back illegal taxes paid is, of course, an ade- 
 quate remedy in theory only; the amount recovered is 
 not worth the expense of litigation.^ ^ In the view of 
 many courts, however, these considerations of economy 
 and convenience, both to the community as a body and 
 to all its individuals, do not outweigh the "other rea- 
 sons of policy, founded on the necessity of speedy col- 
 lection of taxes, which ought to prevent a court of chan- 
 cery from suspending these [tax] proceedings, except 
 upon the clearest grounds."^'' It is to be observed that 
 the jurisdiction arises, in cases of this class, only 
 "when the illegality extends to the whole tax, so that 
 the question involved is the validity of the whole tax 
 and its assessment on every person taxed" i^^ where, 
 for example, the question is one of the exemption from 
 taxation of the separate property of several owners, no 
 "multiplicity of suits" is avoided by the attempt to con- 
 solidate the various issues in a single case in equity, 
 since "each complainant must make his own case upon 
 the facts" peculiar to him.^^ 
 
 19 See, especially, the passages from the opinions in Greedup v. 
 Franklin County, 30 Ark. 109; Kanney v, Bader, 67 Mo. 476, 480; 
 Carlton v. Newman, 77 Me. 408, 1 Atl. 194; and Knopf v. First 
 Nat. Bank, 173 III. 331, 50 N. E. 660, quoted in 1 Pom. Eq. Jur. 
 (3d ed.), § 2G0, note (d). 
 
 20 Dodd V. City of Hartford, 25 Conn. 232. See cases cited in 1 
 Pom. Eq. Jur., §§ 265, 266. This view appears to obtain in Connec- 
 ticut, Delaware, District of Columbia, Idaho, Michigan, Mississippi, 
 New York, Wisconsin, and possibly in other states. 
 
 21 McTwiggan v. Hunter, 18 R. I. 776, 30 Atl. 962. 
 
 22 Schulenberg-Boeckeler Lumber Co. v. Town of Hayward, 20 
 Fed. 422, 424; see 1 Pom. Eq. Jur. (3d ed.), § 25iy2, note (d). Of 
 course, in many states the fact that property is by law exempt 
 from taxation is an independent ground for injunction: See punt, § 
 363.
 
 €49 INJUNCTION AGAINST TAXATION. § 30a 
 
 § 362. Same; Cloud on Title.— Taxes on realty, and 
 sometimes those on personalty as well, are generally 
 made a lien upon real estate. Accordingly, if the pro- 
 ceedings are valid on their face, every such tax will 
 cast a cloud upon the title to land. The prevention and 
 removal of such clouds on title are well established 
 and familiar grounds of equitable jurisdiction. Con- 
 sequently, equity will interfere by injunction to prevent 
 and remove the cloud cast by such an illegal or invalid 
 tax.^^ Where the proceedings are defective upon their 
 face, it is generally held that there is no cloud to re- 
 move, the argument being that no injury can result 
 from an instrument which, upon its face, confers no 
 valid right. While the reasoning appears faulty, the 
 decided weight of authority is on its side; and accord- 
 ingly it is held that an injunction will not issue.^* 
 In New York, it is held that to warrant relief it must 
 not only be shown that the proceedings are regular 
 on their face and invalid only because of defects dehors 
 the record, but also that the defect will not neces- 
 sarily appear in proceedings to enforce the lien.^^ In 
 some states, a tax deed is made prima facie evidence 
 of the validity of the proceedings; and if it is valid 
 upon its face, though invalid in fact, an injunction may 
 issue.^*' 
 
 23 The prevention of a cloud on title is probably a ground for 
 the issuance of an injunction against an invalid tax in all juris- 
 dictions save Connecticut, Massachusetts, and Ehode Island. 
 
 24 See e. g., cases in the federal courts, and in California, Colo- 
 rado, Delaware, Idaho, and Minnesota. For a full discussion of these 
 principles, see Vol. II., chapter on Cloud on Title. 
 
 25 See cases cited in notes to section discussing rules in New- 
 York, post. 
 
 26 See cases cited in notes to sections discussing rules in Wis- 
 consin; but in Minnesota the injunction will not issue when th« 
 defect is apparent on the face of the proceedings unless the issu- 
 ance of such a deed is threatened.
 
 § 363 EQUITABLE REMEDIES. 650 
 
 § 363. Second Type. — In states of this type, the mere 
 illegality of a tax is (subject to some limitations) a 
 ground of jurisdiction for its injunction, apart from 
 any question of irreparable injury, of multiplicity of 
 suits, or of cloud on title. No distinction, in principle, 
 is made between taxes on real and on personal prop- 
 erty. As might be expected, the tax litigation in many 
 of these states is very extensive. As a result of this 
 litigation, several of the states have worked out a large 
 body of special rules on the subject of equitable relief 
 against taxation, wholly unaided by reference to the 
 development of the subject in sister states; thus ren- 
 dering any generalizations drawn from a comparison 
 of these rules somewhat difficult, if not unprofitable. 
 In a few of these states, moreover, injunction of illegal 
 taxation is expressly authorized and, to some extent, 
 regulated by statute.^^ Injunction is usually a matter 
 of right when property exempt by law from taxation is 
 sought to be taxed; on the other hand, where the ques- 
 tion is one of an oppressive overvaluation, the com- 
 plainant must, as a general rule, first pursue the statu- 
 tory remedy of appeal to the board of review or equal- 
 ization. As to what constitutes a substantial illegal- 
 ity in the assessment or levy of a tax, as distinguished 
 from a mere irregularity that is not a matter for in- 
 junctive relief, the decisions are numerous and vary- 
 ing. Where the tax as a whole is illegal, any number 
 of tax-payers may join in the suit, or one may sue on 
 behalf of all others similarly affected.-^ The states 
 clearly belonging in this group are: Georgia, Illinois, 
 Indiana, Iowa, Kansas, Kentucky, Mississippi, Mis- 
 
 27 See infra, Kansas, Mississippi, Montana, Nebraska, North Caro- 
 lina, Ohio, Oklahoma, Utah, Wyoming. 
 
 28 For further details, see index to this treatise. The numerous 
 and able decisions of the Illinois courts, infra, may be consulted 
 with profit as representative of this type of states.
 
 651 INJUNCTION AGAINST SPECIAL ASSESSMENTS. § 3(34 
 
 sonri (by recent -decisions), Montana, Nebraska, North 
 Carolina, Ohio, Oklahoma, Pennsylvania, South Da- 
 kota, Tennessee, Utah, Washington, and Wyoming 
 
 § 3G4. Special or Local Assessments. — Special or local 
 assessments, for the purpose of defraying the expense 
 of local improvements, such as the opening, paving, or 
 repairing of streets, and levied by municipal authority 
 upon the property owners embraced within a limited 
 district, are a form of taxation, subject to equitable con- 
 trol upon the same principles which regulate the in- 
 junction of general taxation. The "recognized head 
 of equity jurisdiction" under which these cases are 
 nearly always brought is, the prevention of a cloud on 
 the title to real property. The proceedings, therefore, 
 against which relief is sought, must not be invalid upon 
 their face, since otherwise, according to the usual defi- 
 nition, no "cloud" will be cast upon the complainant's 
 title.^^ As in the case of general taxation, mere irregu- 
 larities in the proceedings do not warrant an injunc- 
 tion, where sufficient has been done, in compliance with 
 statutory directions, to give the municipal authorities 
 jurisdiction of the subject.^'' Of the substantial de- 
 fects which, when not apparent upon the face of the 
 proceedings, furnish grounds for equitable relief, per- 
 haps the most frequent are : the lack of a consent of the 
 majority of the property-holders to be affected, when 
 that is a statutory prerequisite;^^ that the ordinance, 
 
 29 See cases, infra, e. g., in the United States courts, California, 
 New York, Vermont, Wisconsin. In Massachusetts, as in cases of 
 general taxation in that state, a threatened cloud upon title does 
 not render the legal remedy inadequate, and is not a ground for 
 injunction. 
 
 30 See cases, infra, e. g., in the United States courts, Indiana, 
 Michigan, Nebraska, Wisconsin. 
 
 31 Sec cases, infra, e. g., in the United States courts, Colorado,
 
 e -Mo LQL'iTAELE REAIEDIES. 652 
 
 or notice of resolution, was not published as required 
 by statute ;^2 that the assessment is apportioned among 
 the owners by a plan or method that involves no consid- 
 eration of the benefits to be received by them from the 
 improvement or public work.^^ The equitable doc- 
 trines of estoppel and acquiescence have a frequent ap- 
 plication in cases of this class, either when the owner 
 benefited by the improvement has joined in the peti- 
 tion,3* or, with full knowledge of the proceedings, has 
 stood by and allowed the work to be prosecuted to com- 
 pletion without objection,^^ The complainant, also, 
 must do equity, in a suit to enjoin an assessment partly 
 valid and partly invalid, by making payment or tender 
 of the sum justly due;^^ but where the assessment is 
 wholly unauthorized and void, no tender or payment 
 for benefits received from the improvement is prerequi- 
 site to relief.^'^ 
 
 § 365. United States Courts — Federal Taxes. — Under 
 federal statutes no injunction can issue to restrain the 
 collection of taxes levied by the federal government.^^ 
 
 Maryland, Nebraska; but see cases in Indiana where the legal rem- 
 edy provided by statute was adequate. 
 
 32 See cases, infra, e. g., in Arkansas, California, Nebraska, Oregon. 
 
 33 See cases, infra, e. g., in the United States courts, Michigan, 
 Missouri, New York, Ohio, Oregon, W^ashington, Wisconsin. 
 
 34 See cases infra, e. g., in Kansas and Michigan. 
 
 35 See cases infra, e. g., in Indiana, Kansas, Michigan, Nebraska, 
 Ohio, Oregon. But where the proceedings are wholly void and un- 
 authorized, it has frequently been held that such silence on the 
 owner's part does not estop him from attacking the assessment 
 even after the completion of the work; compare cases, infra, in 
 Colorado, Iowa, Missouri, Oregon. 
 
 36 See cases infra, e. g., in Indiana, Missouri, Nebraska, and es- 
 pecially in Wisconsin. 
 
 37 See cases infra, e. g., in the United States courts, California 
 (but decisions appear to conflict), New York, Oregon, Wisconsin. 
 
 38 U. S. Kev. Stats., § 3224; Snyder v. Marks, 109 U. S. 189, 3 
 Sup. Ct. 157, 27 L. ed. 901; Burgdorf v. District of Columbia, 7 App. 
 D. C. 405.
 
 653 ENJOINING TAXATION; FEDEKAL COURTS. § 366 
 
 Tlie only remedy of the tax-payer is to pay the money 
 and then sue to recover it back. The only cases where 
 federal courts can enjoin taxation are those where state 
 taxes are involved. Therefore, an injunction requir- 
 ing a collector of internal revenue to accept an export 
 bond and to allow the withdrawal of goods without pay- 
 ment of a tax thereon, will not issue, for it in effect 
 would restrain the collection of internal revenue 
 taxes.^* 
 
 § 366. State Taxes; Federal Jurisdiction. — Of course the 
 federal courts will not interfere with state taxation 
 unless the case presents some features which make it 
 of federal cognizance. So long as a state, by its laws 
 prescribing the mode and subject of taxation does not 
 intrench upon the legitimate authority of the Union, 
 nor violate any right secured by the Constitution of the 
 United States, the federal court, as between the state 
 and its citizen, can afford no relief, no matter how un- 
 just, oppressive or onerous the tax may be.*'* 
 
 If the claim to relief clearly within the federal ju- 
 risdiction is fair and colorable, not fictitious and fraud- 
 ulent, jurisdiction attaches, although the ultimate de- 
 cision may be against the right claimed. When the 
 jurisdiction has properly attached, it extends to the 
 whole case, and to all the issues involved, whether of 
 a federal or non-federal character, and the court has 
 power to decide upon all questions involved. There- 
 fore, when the court has obtained jurisdiction on some 
 ground, it may go ahead and examine into the legality 
 of a state tax, whether or not it involves a federal ques- 
 tion, and if it finds there is not an adequate remedy at 
 law in the state courts, it may grant an injunction.** 
 
 39 Miles V. Johnson, 59 Fed. 38. 
 
 40 Kirkland v. Hotchkiss, 100 U. S. 497, 25 L. ed. 558. 
 
 41 Louisville Trust Co. v. Stone, 107 Fed. 305, 46 C. C. A. 299.
 
 § 367 EQUITABLE REMEDIES. 654 
 
 Thus, it has been held that the statutes of Kentucky 
 do not afford an adequate remedy when capital stock 
 of a corporation is illegally assessed, and therefore an 
 injunction may issue.^^ 
 
 A suit to enjoin the collection of a tax imposed by a 
 state is not a suit against a state within the meaning 
 of the Eleventh Amendment of the federal constitution. 
 It is rather a suit against individuals, seeking to en- 
 join them from doing certain acts which they assert 
 to be by the authority of the state, but which the com- 
 plainant avers to be without lawful authority.*^ 
 
 § 367. Adequate Remedy in State Courts. — The federal 
 courts are not ousted of their jurisdiction to grant in- 
 junctions in tax cases, where federal questions are in- 
 volved, because a state furnishes an adequate statutory 
 remedy in its own courts.'*'* And this is true, even 
 though the state statute provides that its remedy shall 
 be exclusive and forbids injunctions.*^ 
 
 Where a valid state statute gives a right of appeal 
 to the courts from an assessment, and no federal ques- 
 tion is involved, it is an adequate remedy for any error 
 or illegality. Therefore, a tax-payer who does not avail 
 himself of such remedy cannot maintain a suit in the 
 United States courts to enjoin the collection of a tax 
 
 42 Id. 
 
 43 Taylor v. Louisville & N. E. Co., 88 Fed. 350, 31 C. C. A. 537; 
 Gregg V. Sanford, 65 Fed. 151, 12 C. C. A. 525; Ex parte Tyler, 149 
 U. S. 164, 13 Sup. Ct. 785, 39 L. ed. 689; Ex parte Ayers, 123 U. S. 
 443, 8 Sup. Ct. 164, 31 L. ed. 216. This decision distinguishes be- 
 tween this class of cases and those where breach of contract by the 
 state is involved. See, also. Union Pac. K. Co. v. Alexander, 113 
 Fed. 347. 
 
 44 Brown v. French, 80 Fed. 166; Ex parte Tyler, 149 U. S. 164, 
 13 Sup. Ct. 785, 39 L. ed. 689; Cummings v. Merchants' Nat. Bank, 
 101 U. S. 153, 25 L. ed. 903. 
 
 45 Taylor v. Louisville & N. R. Co., 88 Fed. 350, 31 C. C. A. 537.
 
 655 ENJOINING TAXATION; FEDERAL COURTS. § 368 
 
 illegally assessed.^^ Likewise, where state laws pro- 
 vide for an appeal to a board of equalization for redress 
 against an excessive tax, a party who fails to resort 
 to such a tribunal cannot obtain relief in the federal 
 courts.'*''' And it is for the state court to determine 
 whether or not the statutory remedy is exclusive,^® 
 
 § 368. Grounds of the Equitable Jurisdiction. — A federal 
 court of equity will not enjoin the collection of a 
 state tax, "except where it may be necessary to protect 
 the rights of the citizen whose property is taxed, and 
 he has no adequate remedy by the ordinary processes 
 of law. It must appear that the enforcement of the 
 tax would lead to a multiplicity of suits, or produce 
 irreparable injury, or where the property is real estate, 
 throw a cloud upon the title of the complainant, before 
 the aid of a court of equity can be invoked." "The il- 
 legality of the tax and the threatened sale .... for 
 its payment constitute of themselves alone no ground 
 for such interposition. There must be some special cir- 
 cumstances attending a threatened injury of this kind, 
 distinguishing it from a common trespass, and bring- 
 ing the case under some recognized head of equity juris- 
 diction."^^ Thus, the mere fact that a tax is unconsti- 
 
 46 Pittsburgh, C, C. & St, L. Ry. Co. v. Board of Pub. Works, 
 172 U. S. 32, 19 Sup. Ct. 90, 43 L. ed. 354. 
 
 47 Altschul V. Gittings, 86 Fed. 200; Dundee Mortgage Trust Inv. 
 Co. V. Charlton, 13 Saw. 25, 32 Fed. 192. 
 
 48 Northern Pac. Railroad Co. v. Patterson, 154 U. S. 130, 14 
 Sup. Ct. 977, 38 L. ed. 934. 
 
 49 Dows V. City of Chicago, 11 Wall. 108, 20 L. ed. 65; Arkansas 
 B. & L. Assn. V. Madden, 175 U. S. 269, 20 Sup. Ct. 119, 44 L. ed. 
 159; Pittsburgh, C, C. & St. L. Ry. Co. v. Board of Pub. Works of 
 W. Va., 172 U. S. 32, 19 Sup. Ct. 90, 43 L. ed. 354; Pacific Express 
 Co. V. Seibert, 142 U. S. 339, 12 Sup. Ct. 250, 30 L. ed. 1035; Shelton 
 V. Piatt, 139 U. S. 596, 11 Sup. Ct. 646, 35 L. ed. 276; Union Pac. 
 Ry, Co. V. Cheyenne, 113 U. S. 516, 5 Sup. Ct. 601, 28 L. ed. 109S; 
 State Railroad Tax Cases, 92 U. S. 616, 23 L, ed, 663; Hannewinkle
 
 S 369 EQUITABLE KEMEDIES. 656 
 
 tutional is no ground for an injunction.^*^ And an in- 
 junction will not be granted when full relief can be ob- 
 tained by an action at law to recover the amount paid f^ 
 nor where there is a mere irregularity in the assess- 
 ment,^2 as where shares of stock are listed to the corpo- 
 ration instead of to the stockholders;^^ or where the 
 tax-roll is completed after the statutory time;^^ nor 
 because of a mere error in judgment on the part of the 
 assessing officers. Fraud or misconduct must be 
 proved, as well as facts bringing the case under some 
 recognized head of equity jurisdiction.^* 
 
 § 369. Personal Property. — A federal court will not, 
 except under very special circumstances, enjoin the col- 
 lection of a tax which is only a personal charge against 
 the party taxed or a charge against his personal prop- 
 erty. Presumptively, the remedy at law is adequate in 
 
 V. City of Georgetown, 15 Wall. 547, 21 L. ed. 231; Bank of Ken- 
 tucky V, Stone, 88 Fed. 383; Taylor v. Louisville & IS. R. Co., 88 
 Fed. 350, 31 C. C. A. 537; Eobinson v. City of Wilmington, 25 U. S. 
 App. 144, 65 Fed. 856, 13 C. C. A, 177; Tilton v. Oregon C. M. R. 
 Co., 3 Saw. 22, Fed. Cas. No. 14,055; Union & Planters' Bank v. 
 City of Memphis, 111 Fed. 561, 49 C. C. A. 455. 
 
 50 Pacific Exp. Co. v. Seibert, 142 U. S. 339, 12 Sup. Ct. 250, 30 
 L. ed. 1035; Allen v. Pullman's Palace Car Co., 139 U. S. 661, 11 
 Sup. Ct. 682, 35 L. ed. 304; Shelton v. Piatt, 139 U. S. 596, 11 Sup. 
 Ct. 646, 35 L. ed. 276. 
 
 Bi Arkansas B. & L. Assn. y. Madden, 175 U. S. 269, 20 Sup. Ct. 
 119, 44 L. ed. 159; Eobinson v. City of Wilmington, 65 Fed. 856, 25 
 U. S. App. 144, 13 C. C. A. 177; Shelton v. Piatt, 139 U. S. 596, 11 
 Sup. Ct. 646, 35 L. ed. 276; State Railroad Tax Cases, 92 U. S. 616, 
 23 L. ed. 663; Dows v. City of Chicago, 11 Wall. 108, 20 L. ed. 65. 
 
 B2 State Railroad Tax Cases, 92 U. S. 616, 23 L. ed. 663; Douglas 
 County V. Stone, 110 Fed. 812. 
 
 53 Robinson v. City of Wilmington, 25 U. S. App. 144, 65 Fed. 
 856, 13 C. C. A. 177. 
 
 54 Woodman v. Ely, 2 Fed. 839. 
 
 55 Maish V. Arizona, 164 U. S. 599, 17 Sup. Ct. 193, 41 L. ed. 567; 
 Albuquerque Nat. Bank v. Perea, 147 U. S. 87, 13 Sup. Ct. 194, 37 
 L. ed. 91; Woodman v. Ely, 2 Fed, 839.
 
 «57 ENJOINING TAXATION; FEDEEAL COURTS. § 370 
 
 such cases. And the mere fact that the property is 
 used in interstate commerce is not sufficient to warrant 
 an injunction;^® nor will it issue even though the com- 
 plainant is a non-resident and the tax is therefore ab- 
 solutely illegal.'^'^ Where, however, the collection of a 
 tax on personal property involves a threat of irrepara- 
 ble injury and inconvenience to the public, an injunc- 
 tion may issue. Thus, where the business and traffic 
 of a railroad company will be stopped by a seizure of 
 its cars, an injunction is proper. '^^ 
 
 § 370. Irreparable Injury. — When the remedy at law 
 for an illegal tax is inadequate in the state courts, a 
 federal court may, after acquiring jurisdiction, inter- 
 fere by injunction to prevent irreparable injury. Thus, 
 under the Kentucky law, an action to recover illegal 
 taxes paid will not lie unless they are paid under 
 duress, and yet in certain cases a penalty of fifty dollars 
 per day is provided where payment is delayed. The 
 legal remedy, therefore, of defending a tax suit is at- 
 tended with a great and oppressive burden of risk, and 
 is entirely inadequate. Hence, an injunction may is- 
 sue.^' Upon the same principle an injunction will 
 
 56 Linehan Ey. & Transfer Co. v. Pendergrass, 70 Fed. 1, 16 C. 
 C. A. 585; Nye, Jenks & Co. v. Town of Washburn, 125 Fed. 817; 
 Shelton v. Piatt, 139 U. S. 596, 11 Sup. Ct. 646, 35 L. ed. 276; Union 
 Pac. E. Co. V. Lincoln Co., 2 Dill. 279, Fed. Cas. No. 14,379. In 
 Hazzard v. O'Bannon (Cir. Ct., E. D. Mo.), 36 Fed. 854, it was 
 held, however, that an injunction will issue to restrain the collection 
 of an illegal excess on personal property when the writ is not ab- 
 Bolutely void, and would therefore protect the sheriff in an action 
 of trespass. 
 
 67 City of Milwaukee v. Koeffler, 116 U. S. 219, 6 Sup. Ct, 372, 
 29 L. ed. 612. 
 
 58 Southern Ey. Co. v. City of Asheville, 69 Fed. 359. 
 
 59 Bank of Kentucky v. Stone, 88 Fed. 383. Affirmed, Stone ▼. 
 Bank of Kentucky, 174 U. S. 799, 19 Sup. Ct. 881, 43 L. ed. 1177; 
 First Nat. Bank v. City of Covington, 103 Fed. 523. 
 
 Equitable Eemedies, Vol. 1—42
 
 § 371 EOUITABLE REMEDIES. 658 
 
 issue when the collection of an illegal tax will destroy 
 a corporate franchise. This rule was laid down by 
 Chief Justice Marshall in the case of Osborn v. Bank 
 of the United States. ^^ In that case, the state of Ohio 
 hrtd imposed an illegal tax upon the Bank of the United 
 States with the avowed intention of driving it from the 
 state. The agent whose duty it was to collect could not 
 properly respond in damages. Consequently, the fran- 
 chise of the bank would have been of no effect so far 
 as it authorized the transaction of business in Ohio un- 
 less the injunction had been granted. Therefore, the 
 injunction was allowed, to prevent irreparable injury. 
 The United States may enjoin the enforcement of a 
 state tax on lands allotted in severalty, and which it 
 holds in trust for Indians, for the legal remedy is in- 
 adequate.^^ 
 
 § 371. Valuation Resulting in Unjust Discrimination. — 
 To the general rule there seems to be one excei>tion. 
 ^'AVhen the overvaluation of property has arisen from 
 the adoption of a rule of appraisement which conflicts 
 with a constitutional or statutory direction, and oper- 
 ates unequally, not merely on a single individual, but 
 on a large class of individuals or corporations, a party 
 aggrieved may resort to equity to restrain the exaction 
 of the excess, upon payment or tender of what is ad- 
 mitted to be due."^2 So, where a standard of valua- 
 tion results in discrimination, the parties injured may 
 obtain an injunction.^^ Likewise, an injunction will 
 
 60 9 Wheat. 738, 6 L. ed. 204, 
 
 ci "United States v. Rickert, 188 U. S. 432, 23 Sup. Ct. 478, 47 
 L. ed. 532. 
 
 62 Stanley v. Supervisors, 121 U. S. 535, 7 Sup. Ct. 1234, 30 L. ed. 
 1000; Cumming3 v. Merchants' Nat. Bank, 101 U. S. 153, 25 L. ed. 
 903; Pelton v. Commercial Nat. Bank, 101 U. S. 143, 25 L. ed. 901; 
 German Nat. Bank v. Kimball, 103 U. S. 732, 26 L. ed. 469. 
 
 63 Trustees Cincinnati Southern Ey. v. Guenther, 19 Fed. 395.
 
 659 ENJOINING TAXATION; FEDERAL COURTS. §§ 372,373 
 
 be issued when state ofiScers, by a systematic, inten- 
 tional and illegal under-valuation of other property, 
 make an unjust discrimination against the plaintiff, 
 the federal jurisdiction arising because of the equal 
 protection of the laws guaranteed by the Fourteenth 
 Amendment.^^ But the proof of discrimination must 
 be clear and convincing before the injunction will is- 
 sue.^^ If it appears, however, that the assessing offi- 
 cers intentionally and habitually violate the law in 
 this regard, it need not affirmatively appear that they 
 do so with intent to injure the complainant and his 
 class of tax-payers.^® 
 
 § 372. Multiplicity of Suits — This ground of jurisdic- 
 tion has met with abundant recognition in cases of the 
 "Second Class" and of the "Fourth Class" f^ but ap- 
 pears to have been rejected in one case of the "Third 
 Class,"^^ where the equity arises from the fact that the 
 burden of an illegal tax falls on numerous individuals 
 in the same way. This class is, at any rate, confined 
 to cases where the tax as a whole is invalid ;^^ and in 
 any event the jurisdiction is asserted to prevent a prob- 
 able, not a possible, multiplicity of suits.'^'* 
 
 § 373. Cloud on Title.— Where an invalid tax, valid 
 on its face, casts a cloud on the title of the plaintiff's 
 
 64 Louisville Trust Co. v. Stone, 107 Fed. 305, 46 C. C. A. 299; 
 Southern Ry. Co. v. North Carolina Corp. Com., 104 Fed. 700; Nash- 
 ville, C. & St. L. Ey. Co. V. Taylor, 86 Fed. 168. 
 
 65 Coulter V. Louisville & N. R. Co., 196 U. S. 599, 25 Sup. Ct. 
 
 342, 49 L. ed. ; Michigan Railroad Tax Cases, 138 Fed. 223, 244- 
 
 248; Louisville Trust Co. v. Stone, 107 Fed. 305, 46 C. C. A. 299. 
 
 66 Taylor v. Louisville & N. R. Co., 88 Fed. 350, 31 C. C. A. 537. 
 
 67 See ante, § 361, notes 16, 17. 
 
 68 People's Nat. Bank v. Marye, 107 Fed. 570. 
 
 69 See ante, § 361, note 22. 
 TO See ante, § 361, note 16.
 
 9 374 EQUITABLE KEMEDIES. 660 
 
 real estate, an injunction will issueJ^ Thus, where an 
 illegal tax on the stock of a national bank is made a 
 lien on its real estate, its collection or enforcement may 
 be enjoined.'^^ And where an illegal tax against a 
 common carrier is made a lien on its realty, although 
 personalty is to be resorted to first, equitable relief 
 will be allowed.'* Likewise, it will be allowed where 
 a settlement of illegal back taxes will, when the proper 
 steps are taken, constitute a lien on real estate;'^* or 
 where an assessment willfully made in disregard of a 
 statute is made a lien on realty ,'^° although a Board of 
 Equalization has refused relief. 
 
 There is no cloud upon the title, however, which jus- 
 tifies the interference of a court of equity, where the 
 proceedings are void upon their face; that is, where 
 the same record which must be introduced to estab- 
 lish the title claimed will show that there is no title.'^* 
 
 § 374. State Tax in Violation of Contract. — Where a 
 state imposes a tax on a corporation in violation of the 
 terms of its charter, a federal court may issue an in- 
 junction because of the violation of contract'^' And 
 where the corporation itself refuses to sue, the suit 
 
 71 Tilton V. Oregon C. M. E. Co., 3 Saw. 22, Fed. Cas, No. 14,055; 
 Taylor v. Louisville & N. E. Co., 31 C. C. A. 537, 88 Feci. 350; Ogden 
 City V. Armstrong, 168 U. S. 224, 18 Sup, Ct. 98; Kansas City, Ft. 
 8. & M. E. Co. V. King, 120 Fed. 615; People's Sav. Bank v. Lay- 
 man, 134 Fed. 635; Gregg v. Sanford, 65 Fed. 151, 12 C. C. A. 525; 
 "Union Pac. Ey. Co. t. Cheyenne, 113 U. S. 516, 5 Sup. Ct. 601, 28 L. 
 ed. 1098. 
 
 72 Brown v. French, 80 Fed. 166. 
 
 73 Southern Ey. Co, v. Asheville, 69 Fed. 359. 
 T4 Sanford v. Gregg, 58 Fed. 620. 
 
 75 California & O. Land Co. v. Gowen, 48 Fed. 771. 
 
 76 Hannewinkle v. City of Georgetown, 15 "Wall. 547, 21 L. ed. 231. 
 
 77 Dodge V. Woolsey, 18 How. 331, 15 L. ed. 401; Detroit, G. H. 
 4 M, E. Co. V. Powers, 138 Fed. 264.
 
 661 ENJOINING TAXATION; FEDEEAL COURTS. §§ 375,370 
 
 may be brought by a stockholder, the corporation be- 
 ing made a party defendant* 
 
 § 375. Injunction Warranted by State Laws. — Where 
 the federal court acquires jurisdiction of the case and 
 facts are shown which, under the state law, warrant 
 the issuance of an injunction, such relief may be 
 awarded, whether the facts are such as ordinarily war- 
 rant such relief in federal courts, or not. Thus, under 
 section 5848 of the Ohio statutes providing that the 
 illegal levy of taxes and assessments, or either, may be 
 enjoined, a federal court may enjoin an increase in the 
 assessment of a national bank, illegal because made 
 by a board of equalization without notice.'^* Under 
 the same statute, the federal court may enjoin the col- 
 lection of any tax found to be illegal,®" such, for in- 
 stance, as a tax on federal bonds which are exempt from 
 taxation.®^ Likewise, where, under the decisions of the 
 supreme court of Kansas an injunction will issue 
 when one class of property is intentionally assessed in 
 greater proportion than another, federal courts, in 
 like cases coming from that state, will grant an in- 
 junction.®^ And, following the supreme court of Wash- 
 ington, an injunction will be granted where there has 
 been an unjust discrimination.^^ 
 
 § 376. Tender. — The collection of a tax valid in part 
 cannot be enjoined unless the party seeking the in- 
 
 78 Dodge V, Woolsey, 18 How. 331, 15 L. ed. 401. 
 
 79 Mercantile Nat. Bank v. Hubbard, 105 Fed. 809, 45 C, C. A, 
 66. 
 
 80 Cummings v. Merchants' Nat. Bank, 101 U. S. 153, 25 L. ed. 903; 
 Brinckerhoff v. Brumfield, 94 Fed. 422. 
 
 81 Grether v. Wright, 75 Fed. 742, 23 C. C. A. 498. 
 
 82 Chicago, B. & Q. E. Co. v. Board of Commissioners of Eepublic 
 Co., 67 Fed. 411, 14 C. C. A. 456. 
 
 83 First Nat. Bank v. Hungate, 62 Fed. 548.
 
 § 377 EQUITABLE KEMEDIES. 6(32 
 
 junction has paid or tendered, nnconditionally, so much 
 of the tax as it is certain he should pay.^"* An aver- 
 ment of readiness to pay, or a tender made in the bill, 
 is not sufficient.^^ If it appears that a sufficient sum 
 has not been tendered, the complainant must actually 
 tender the true amount before he can obtain relief.^* 
 And upon application of the defendant, he may be com- 
 pelled to pay into court.^^ 
 
 When a tax is wholly void, it is not necessary to 
 make a tender as a prerequisite to an injunction f^ nor 
 is it necessary when county officers have declared in 
 advance that they will not accept less than the full 
 amount.^' 
 
 § 877. Property in Hands of Federal Eeceiver. — When 
 property is in the hands of a receiver appointed by a 
 federal court, an injunction may issue pendente lite 
 forbidding state taxing officers to collect disputed taxes 
 
 84 Northern Pac. R. Co, v. Clark, 153 U. S. 252, 14 Sup. Ct. 809, 
 38 L, ed. 706j Albuquerque Nat. Bank v. Perea, 147 U. S. 87, 13 Sup. 
 Ct. 194, 37 L. ed. 91; Dundee Mortgage Trust Inv. Co. v. Parrish, 
 24 Fed. 197; German National Bank v. Kimball, 103 U. S. 732, 2G 
 L. ed. 469; State Eailroad Tax Cases, 92 U, S. 616, 23 L. ed. 674; 
 Parmley v. Eailroad Companies, 3 Dill. C. C. 25, Fed. Cas. No. 
 10,768; Morenci Copper Co. v. Freer, 127 Fed. 199; People's Nat. 
 Bank v. Marye, 191 U. S. 272, 24 Sup. Ct. 68, 48 L. ed. 180. 
 
 85 Chicago, B. & Q. E. Co. v. Board of Commissioners of Norton 
 Co., 67 Fed. 413, 14 C. C. A. 458; Huntington v. Palmer, 7 Saw. 355, 
 8 Fed. 449; State Eailroad Tax Cases, 92 U. S. 616, 23 L. ed. 674. 
 
 86 Chicago, B. & Q. E. Co. v. Board of Commissioners of Norton 
 Co., 67 Fed. 413, 14 C. C. A. 458. 
 
 87 Eichmond & D. E. Co. v. Blake, 49 Fed. 904. 
 
 88 Fargo V. Hart, 193 U. S. 490, 24 Sup. Ct. 498, 48 L, ed. 761; 
 First Nat. Bank v. City of Covington, 103 Fed. 523; Albany City 
 Nat. Bank v. Maher, 19 Blatchf. 175, 9 Fed. 884. And this rule 
 holds, although a state law requires that the amount of the tax 
 must be deposited before suit: Northern etc. E. E. Co. v. Kurtzman, 
 82 Fed. 241. 
 
 88 First Nat. Bank v. Hungate, 62 Fed. 548.
 
 663 ENJOINING TAXATION; FEDERAL COURTS. § 378 
 
 levied against it.^" The property being in custody 
 of the court, any charge against it, even for taxes, can 
 be enforced against it only through the orders of the 
 court. Therefore the court may well insist that the 
 hands of the executive officers be tied until the issue 
 can be determined. 
 
 § 378. Special Assessments. — The rules as to local as- 
 sessments are similar to those relating to general tax- 
 ation. An injunction will not ordinarily be granted 
 unless the case is brought within some recognized head 
 of equity jurisdiction, other than mere illegality.^^ An 
 injunction will not issue because of a mere irregularity 
 in the proceedings.^^ Where a state statute provides 
 for an appeal from an assessment on questions of law 
 alone, it is an adequate remedy for errors and irregu- 
 larities occurring subsequent to the adoption of the 
 ordinance and the making of the contract under which 
 the improvement was constructed, and therefore no in- 
 junction will issue to restrain the collection of an as- 
 sessment on the ground of such irregularities.^^ 
 
 Where an invalid local assessment casts a cloud 
 upon the title to real estate, and the defect is not ap- 
 parent upon the face of the proceedings, an injunction 
 is the proper remedy. Thus, where statute makes the 
 consent of a majority of the property owners essential 
 to the validity of an assessment which is a lien on laud, 
 an injunction may be obtained if the assessment is lev- 
 
 90 Clark v. McGhee, 87 Fed. 789; Ex parte Chamberlain, 55 Fed. 
 704; Ex parte Tyler, 149 U. S. 164, 13 Sup. Ct. 785, 37 L. ed. 689. 
 See, also, ante, chapter IV, § 168. 
 
 91 Ogden City v. Armstrong, 1G8 U. S. 224, 18 Sup. Ct. 98, 42 L. 
 ed. 444. 
 
 92 Ogden City v. Armstrong, 168 U. S. 224, 18 Sup. Ct. 98, 43 
 L. ed. 444. 
 
 93 Rickcords v. City of Hammond, 67 Fed. 380.
 
 S 379 EQUITABLE REMEDIES. 664 
 
 ied without such consent, for the defect is not appar- 
 ent on the face of the proceedings.** A federal court 
 may enjoin the enforcement of a special assessment 
 made under a rule or system in violation of the Consti- 
 tution of the United States.'' Thus, an injunction is 
 proper when the assessment is rested upon a basis 
 which excludes any consideration of benefits.^® 
 
 Where an owner of land subject to a mortgage joins 
 in a petition for the improvement, a subsequent owner 
 who acquires title by foreclosure is not estopped from 
 attacking the assessment.*^ When the complainant 
 has been guilty of laches, injunctive relief will be de- 
 nied. Thus, after an assessment has been levied for 
 seven years it is too late to enjoin a threatened sale 
 thereunder.** 
 
 Where the assessment is wholly void, it is not neces- 
 sary to make any tender for the benefits conferred as 
 a prerequisite to relief.** 
 
 § 379. Alabama. — In Alabama, "in addition to ille- 
 gality, hardship, or irregularity, the case must be 
 brought within some of the recognized foundations of 
 equitable jurisdiction, and .... mere errors of excess 
 in valuation, or hardships, or injustice of the law, or 
 any grievance which can be redressed by a suit at law, 
 either before or after payment of the taxes, will not 
 
 94 Ogden City v. Armstrong, 168 U. S. 224, 18 Sup. Ct. 98, 42 L. 
 ed. 444, 
 
 95 Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 
 43 L. ed. 443; Craighill v. Lambert, 168 U. S. 611, 18 Sup. Ct. 217, 
 
 42 L. ed. 599. See, also, Charles v. City of Marion, 98 Fed. 166. 
 
 96 Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 
 
 43 L. ed. 443; Zehnder v. Barber Asphalt Co., 106 Fed. 103; Bidwell 
 V. Huff, 103 Fed. 362; Lyon v. Town of Tonawanda, 98 Fed. 361. 
 
 97 Lyon V. Town of Tonawanda, 98 Fed. 361. 
 
 98 Boss V. City of Portland, 105 Fed. 682. 
 
 »9 Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 
 L. ed. 443.
 
 €65 ENJOINING TAXATION; AEIZONA-AEKANSAS. 5§ 380 381 
 
 justify a court of equity to interfere by injunction to 
 stay collection of the tax." Thus, even though an il- 
 legal tax will cast a cloud on title, it will not be en- 
 joined where there is an adequate remedy at law.^"" 
 
 The tax-payer is not entitled to any relief whatever 
 unless the legal part of the tax is either tendered or 
 paid.i«* 
 
 § 380. Arizona. — In Arizona, an injunction will issue 
 to restrain the collection of a tax on property exempt 
 from taxation. Thus, shares of stock in a corporation 
 being a class of property which takes the situs of its 
 owner, an injunction will be granted to restrain the 
 collection of a tax on such property elsewhere.^"^ Mere 
 errors in the assessment, however, are not sufficient to 
 warrant relief. ^°^ 
 
 In order to obtain relief it is usually necessary for 
 the plaintiff to tender or pay the part of the tax which 
 is legal. A tender may possibly be excused after sale 
 when the purchaser is a party who was in duty bound 
 to pay the tax.^^* 
 
 § 381. Arkansas. — Where the assessment is commit- 
 ted by law to certain commissioners, a mere allegation 
 of excess is not sufficient to warrant an injunction. "In 
 the absence of fraud, intentional wrong, or error in the 
 method of assessment, the finding by the board cannot 
 
 100 Boyd V. City of Selma, 96 Ala. 144, 11 South. 393, 16 L. E. A. 
 729. 
 
 101 Nashville, C. & St. L. Ey. Co. v. City of Attalla, 118 Ala. 202, 
 24 South. 450; Tallahassee Mfg. Co. v. Spigener, 49 Ala. 262. 
 
 102 National Bank of Arizona v. Long (Ariz.), 57 Pac. 639. 
 
 103 County of Cochise v. Copper Queen Consol. Min. Co. (Ariz.), 
 71 Pac. 946. 
 
 104 Murray v. Evans (Ariz.), 64 Pac. 412.
 
 § 381 EQUITABLE REMEDIES. 666 
 
 be overtnrnecl by evidence going only to show an error 
 of judgment,'""^ 
 
 An injunction will issue to restrain the collection of 
 a tax on exempt property, provided irreparable injury 
 would follow refusal. Thus, an injunction has been 
 granted against a sale of exempt railroad property for 
 non-payment of a tax, the court saying : — "The illegality 
 of the taxes alone could not give the court jurisdiction 
 to restrain the sale, but the sale of the road would 
 most probably, if not necessarily, result in the stop- 
 page of its trains and the suspension of its business for 
 an indefinite time, and until the company could regain 
 possession; an injury which, because the actual dam- 
 ages by reason of their uncertain nature, could not 
 be ascertained, would be irreparable, and to prevent 
 which it was the duty of the court to interpose by in- 
 junction."^^^ 
 
 An injunction will issue to restrain the collection of 
 an illegal tax which is a lien on land when extrinsic 
 evidence is necessary to show its invalidity.^^'^ In such 
 a case, it seems, a tax-payer may sue on behalf of him- 
 self and all other tax-payers in the county, the court 
 taking jurisdiction to prevent multiplicity of suits.^°* 
 
 An injunction will not issue against the collection of 
 an excessive tax good in part unless the amount admit- 
 ted to be legally due is paid or tendered before suit.^^® 
 
 105 Wells, Fargo & Co. 's Express v. Crawford County, 63 Ark. 
 576, 40 S. W. 710, 37 L. R. A. 371. 
 
 106 Oliver v. Memphis etc. E. E. Co., 30 Ark. 128. 
 
 107 Greedup et al. v. Franklin County, 30 Ark. 101. 
 
 108 Id. See quotation from the opinion in this case, in 1 Pom. Eq. 
 Jur. (3d ed.), § 260, note (d). The jurisdiction on this ground is now 
 expressly conferred by the constitution, 1874, art. 16, § 13: Little 
 Rock V. Prathet, 46 Ark. 471; Taylor v. Pine Bluff, 34 Ark. 603; Little 
 Rock V. Barton, 33 Ark. 436. 
 
 109 "Wells, Fargo & Co. 's Express v. Crawford County, 63 Ark. 576, 
 40 S. W. 710, 37 L. R. A. 371.
 
 6G7 ENJOINIJN'G TAXATION; CALIFOENIA. §§ 382, :;S3 
 
 This is upon the principle that "he who seeks equity 
 must do equity." Upon the same principle, an injunc- 
 tion will not be granted against the issuance of a tax 
 deed after sale for excessive taxes, unless the amount 
 really due is tendered or paid.^^*^ 
 
 § 382. Special Assessments. — When a special assess- 
 ment is levied on land without authority, an injunc- 
 tion will issue. Thus, where a statute requires pub- 
 lication of the ordinance creating the district within 
 five days, no jurisdiction to make the levy attaches un- 
 less such publication is made. Therefore an injunc- 
 tion will issue to restrain the collection of an assess- 
 ment when the proper publication has not been made.^** 
 
 § 383. California. — In California, it is held that an 
 injunction will not issue to restrain the collection of a 
 tax, unless the case is brought under some recognized 
 head of equity jurisdiction. It must appear that en- 
 forcement would lead to a multiplicity of suits, or pro- 
 duce irreparable injury, or where the property is real 
 estate, throw a cloud upon the title of the complain- 
 antii2 
 
 An injunction will not issue to restrain the collection 
 of a tax on personal property, unless the injury is ir- 
 reparable; and where the tax-qollector is able to re- 
 spond in damages, the injury is not irreparable;^^* 
 nor to restrain the collection of a tax because of irregu- 
 larities which could have been corrected by an appeal 
 to the board of equalization, when such appeal has not 
 been made.^^* Likewise, it will not issue against col- 
 no Worthen v. Badgett, 32 Ark. 496. 
 
 111 Crane v. City of Siloam Springs, 67 Ark. 30, 55 S. W. 955. 
 
 112 Savings & Loan Soc. v. Austin, 46 Cal. 417. 
 
 113 Eitter v. Patch, 12 Cal. 298. 
 
 114 Merrill v. Gorham, 6 Cal. 41.
 
 S 383 EQUITABLE EEMEDIES. 668 
 
 lection of a tax levied by an irrigation district, because 
 of mere irregularities, unless the tax-payer shows an 
 injury to himself. Thus, a complaint which alleges 
 that a board of equalization has raised assessments af- 
 ter it has lost jurisdiction, does not state a cause of 
 action unless it shows that plaintiff's assessment has 
 been raised, or that other assessments have been low- 
 ered, so as to increase plaintiff's proportionate liabil- 
 ity.115 
 
 "A tax-payer may enjoin the collection of a tax 
 founded upon an assessment fraudulently and cor- 
 ruptly made with the intention of discriminating 
 against him, and for the purpose of causing him to pay 
 more than his share of public taxes."^^^ "But in ap- 
 pealing to a court of equity for relief by way of injunc- 
 tion against such fraudulent assessment, the plaintiff 
 must show by his complaint that he has paid or ten- 
 dered the amount of taxes which would have been due 
 from him if his property had been assessed at what 
 he concedes would have been a fair valuation, and he 
 must in addition offer to pay what the court shall find 
 to be equitable and just."^^'^ 
 
 Cloud on Title. — An injunction will issue against the 
 collection of an illegal tax when the invalidity of the 
 assessment will not appear upon the face of a deed 
 given to a purchaser at a tax sale. Thus, where an 
 
 115 Lahman v. Hatch, 124 Cal. 1, 56 Pac. 621. Section 71 of the 
 act providing for irrigation districts (Stats. 1897, p. 534) provides: 
 ' ' The court hearing any of the contests herein provided for, in in- 
 quiring into the regularity, legality or correctness of such proceedings, 
 must disregard any error, irregularity or omission which does not af- 
 fect the substantial rights of the parties to such action or proceeding." 
 
 116 Pacific Postal etc. Cable Co. v. Dalton, 119 Cal. 604, 51 Pac. 
 1072; County of Los Angeles v. Ballerino, 99 Cal. 597, 32 Pac. 581, 34 
 Pac. 329 {dictum). 
 
 117 County of Los Angeles v. Ballerino, 99 Cal. 597, 32 Pac. 581, 34 
 Pac. 329 ( dictum) .
 
 069 ENJOINING TAXATION; CALIFOKNIA. § 384 
 
 assessment is void because not authorized by the elec- 
 tors of a district, as required by statute, an injunction 
 will issue because the fact will not appear on the face 
 of the tax deed.^^^ Where, however, the irregularity 
 will appear upon the face of the deed, as where the as- 
 sessment is levied under a repealed law, there is no 
 cloud on title, and no injunction will issue.^** 
 
 § 384. Special Assessments. — It has been stated by the 
 supreme court that an injunction will not issue to re- 
 strain the collection of a special assessment when it 
 does not appear that the complainant would sustain 
 irreparable injury, or that a sale would cast a cloud 
 upon title to real estate.^ ^^^ It may be laid down as a 
 general principle that an injunction will not be al- 
 lowed where the proceedings are void on their face, for 
 in such a ease there is no cloud on title.^^^ Hence, 
 when it appears on the face of the proceedings that 
 they are taken under the general law when they 
 should be according to the provisions of a city charter, 
 an injunction will not issue.^^^ Where, however, the 
 assessment is void, constitutes a lien on real estate, 
 and the defect is not apparent on the face of the pro- 
 ceedings, an injunction will issue. Thus, it has been 
 held where the publication of the notice of passage of 
 a resolution of intention was made in a newspaper not 
 designated by the city council, that no jurisdiction at- 
 tached; that the defect was not apparent on the face 
 of the proceedings; and that therefore an injunction 
 was the proper remedy.^ ^* 
 
 118 Woodruff V. Perry, 103 Cal. 611, 37 Pae. 526. 
 
 119 Burr V. Hunt, 18 Cal. 303. 
 
 120 Dean v. Davis, 51 Cal. 406. 
 
 121 Bucknall v. Story, 36 Cal. 67. 
 
 122 Byrne v. Drain, 127 Cal. 663, 60 Pac. 433. 
 
 123 Chase v. City Treasurer, 122 Cal, 540, 55 Pac. 414.
 
 8 385 EQUITABLE EEMEDIES. 670 
 
 Payment or Tender. — As to whether it is necessary to 
 pay the amount of the benefit as a prerequisite to relief 
 there is a direct conflict of authority. The later de- 
 cision holds that where the defect is such as to prevent 
 the council from acquiring jurisdiction (and it is gen- 
 erally held that no jurisdiction attaches unless the stat- 
 ute is strictly complied with), no tender or payment is 
 necessary.^2^ On the other hand, it was held in a case 
 five years earlier that so long as a moral obligation to 
 pay any portion exists, a court of equity will not lend 
 its aid to prevent a cloud on title.^^^ 
 
 § 385. Colorado. — In Colorado "it is well settled that 
 courts of equity will not enjoin the collection of a lax 
 solely on the ground of its illegality, or the threatened 
 sale of property to satisfy it. Additional facts must 
 be alleged, and plainly appear, to bring a case within 
 some recognized head of equity jurisdiction. It must 
 be shown that not only would the plaintiff be without 
 an adequate remedy at law, but that the enforcement of 
 the tax would produce irreparable injury, or lead to 
 a multiplicity of suits, or bring a cloud upon his 
 title."^-*^ Thus, an injunction will not be granted to 
 restrain the collection of a tax on personal property 
 when the tax collector is able to respond in damages, 
 for there is an adequate remedy at law.^^'^ 
 
 124 Chase v. City Treasurer, 122 Cal. 540, 55 Pac. 414. 
 
 125 Esterbrook v. O'Brien, 98 Cal. 671, 33 Pac. 765. This case was 
 cited with approval in Hellman v. Shoulters, 114 Cal. 136, 44 Pac. 
 935, 45 Pac. 1057. In an early case, "Weber v. City of San Francisco, 
 1 Cal. 455, it was held that the validity of the ordinance would not 
 be inquired into after the completion of the work. 
 
 126 Wason V. Major, 10 Colo. App. 181, 50 Pac. 741; City of High- 
 lands V. Johnson, 24 Colo. 371, 51 Pae. 1004; Duinars v. City of Den- 
 ver, 16 Colo. App. 375, 65 Pac. 580. 
 
 127 Insurance Co. of North America v. Bonner, 24 Colo. 220, 49 
 Pac. 366; Id., 7 Colo. App. 97, 42 Pac. 681.
 
 671 ENJOINING TAXATION; COLOEADO. § S85 
 
 Cloud on Title and Multiplicity of Suits. — Where an 
 invalid tax casts a cloud on title, an injunction will 
 issue to restrain its collection.^ ^s r^^^ illegality, as a 
 general rule, must not appear on the face of the pro- 
 ceedings. Thus, where the tax is assessed under an un- 
 constitutional law, no injunction will be granted, for 
 the illegality is said to be apparent.^ ^^ But where 
 some other ground of equity jurisdiction appears, the 
 mere fact that the proceedings are void on their face 
 will not warrant a refusal of relief. "While void pro- 
 ceedings cast no cloud upon title to real estate, and a 
 single individual, moving only in his own behalf, and 
 for his own purposes, to restrain such proceedings, will 
 be remitted to his remedy at law, yet where a number 
 of persons are similarly affected, and the rights of all 
 may be adjusted in one proceeding, a court of equity 
 will assume jurisdiction, notwithstanding there is no 
 cloud to remove, and the ground of its jurisdiction is 
 the prevention of a multiplicity of suits."^^° In order 
 to be entitled to an injunction against an invalid as- 
 sessment, plaintiff must make his objection before the 
 board of equalization first.^^^ 
 
 Tender. — Where part of a tax is valid and part in- 
 valid, no injunction will issue until the valid part is 
 either tendered or paid.^^^ Where, however, the entire 
 
 128 Dumars v. City of Denver, 36 Colo. App. 375, 65 Pac. 5S0. 
 
 129 Wason V. Major, 10 Colo. App, 181, 50 Pac. 741. 
 
 130 Dumars v. City of Denver, 16 Colo. App. 375, 65 Pac. 5S0. 
 "Class Third" is thus distinctly recognized: See 1 Pom. Eq. Jur. (oil 
 ed.), § 260, note (b). 
 
 131 American Eefrigerator Transit Co. v. Adams, 28 Colo. 119, G3 
 Pac. 410. 
 
 132 Insurance Co. of North America v. Bonner, 24 Colo. 220, 49 Pac. 
 366; American Eefrigerator Transit Co. v. Thomas, 28 Colo. 119, 
 63 Pac. 410; Wason v. Major, 10 Colo. App. 181, 50 Pac. 741; People 
 V. Henderson, 12 Colo. 379, 21 Pac. 144.
 
 ;S 386,387 EQUITABLE EEMEDIES. 672 
 
 tax fails by reason of an illegal assessment, the injunc- 
 tion will be granted without a tender.^^a 
 
 § 386. Special Assessments. — An injunction will issue 
 to restrain the collection of a special assessment when 
 there is a jurisdictional defect in the proceedings. 
 Thus, when a majority do not petition for the improve- 
 ment, as required by statute, the city council has no 
 authority to order it, and an injunction will issue even 
 though the resolution states that a majority have peti- 
 tioned.^ ^^ And in such a case the owners are not es- 
 topped by acquiescence because they make no objec- 
 tion until the work is completed.^ ^' A mere irregular- 
 ity, however, such as the fact that the city engineer has 
 made the assessment instead of the assessor, when it 
 is based upon an arithmetical calculation, is not suffi- 
 ©ient to warrant an injunction.^^* 
 
 § 387. Connecticut. — In Connecticut, it is held that 
 the prevention of a multiplicity of suits is no ground 
 for enjoining the collection of a tax, when each individ- 
 ual will have an adequate remedy at law.^^^ And even 
 a threatened cloud upon the title to real property is not 
 recognized as a ground for enjoining proceedings to 
 collect an illegal tax.^^^ Indeed, it is laid down in the 
 most sweeping terms that "the extraordinary remedy 
 by injunction cannot be invoked to hinder or interfere 
 
 133 Dumars v. City of Denver, 16 Colo. App. 375, 65 Pac. 580. 
 
 134 Keese v. City of Denver, 10 Colo. 112, 15 Pac. 825. 
 185 Id. 
 
 136 Id. 
 
 137 Sheldon v. Centre School District, 25 Conn. 224; Dodd v. City 
 of Hartford, 25 Conn. 232. 
 
 1S8 Kowland v. School District, 42 Conn. 30; Waterbury Saving* 
 Bank r. Lawler, 46 Conn. 243, 246.
 
 673 ENJOINING TAXATION; DELAWARE. S 388 
 
 with a collector of taxes in the discharge of his public 
 
 duty."^3» 
 
 § 388. Delaware. — In Delaware, equity will not "en- 
 join the collection of a tax alleged to be illegal, where 
 there is an adequate remedy at law. It will not inter- 
 fere by its preventive process, on account of mere ir- 
 regularities, hardship, and injustice in the assessment, 
 or errors or excess in valuation." "The ordinary reme- 
 dies in the case of taxes illegally assessed and levied 
 are an action at law after a compulsory payment, either 
 of trespass against the collecting officer, or of assumpsit 
 against such officer or the public corporation to which 
 the amount has been paid."^^^ 
 
 The prevention of a multitude of suits is not ground 
 for enjoining the collection of a state tax, where the 
 multiplicity results merely from the fact that plaintiff 
 is guardian of a large number of estates and will be 
 obliged to maintain a separate attion at law for each 
 one.^^^ But it is a ground, in a case where a railroad, 
 exempt by law from taxation, is threatened with tax 
 proceedings in the several tax districts in which its 
 property lies.^'*^ Multiplicity of suits in cases of the 
 "Third Class," however, is not recognized as a ground 
 for equitable interference in this state.^"*^ 
 
 In order to warrant an injunction against the col- 
 lection of a tax alleged to be a cloud on title of real es- 
 tate, the proceedings must be valid on their face. Ev- 
 
 139 Waterbury Savings Bank v. Lawler, 46 Conn. 243, 246; Arnold 
 V. Middleton, 39 Conn. 406. 
 
 140 Philadelphia, W. & B. K. Co. v. Neary, 5 Del. Ch. 600; Equita- 
 ble Guarantee & Trust Co. v. Donahoe (Del.), 45 Atl. 583. 
 
 141 Equitable Guarantee & Trust Co. v. Donahoe (Del.), 45 Atl. SS-?.. 
 
 142 Philadelphia, W, & B. R. Co. v. Neary, 5 Del. Ch. 600. 
 
 143 Murphy v. City of Wilmington, 6 Iloust. 108, 139, 140, 22 Am. 
 6t. Rep. 345; see ante, § 361. 
 
 Equitable Remedies, Vol. T — 43
 
 5 389 EQUITABLE REMEDIES. 674 
 
 eryone is presumed to know the law, and therefore if 
 the proceedings themselves show that they are defective, 
 or if the act under which the tax is levied is unconsti- 
 tutional, the injunction will be denied. 
 
 144 
 
 § 389. Florida. — In Florida, an injunction against 
 collection of a tax will be granted only when the tax 
 is illegal, or is being illegally collected.^^^ The injunc- 
 tion will not issue merely because the collector might 
 adopt a mode more equitable and fair.^^^ 
 
 Collection of a tax will be enjoined when the illegal 
 proceedings for the levy, assessment and collection will 
 cast a cloud over the title to complainant's real es- 
 tate.^ ^"^ An injunction, however, will not be granted 
 where there is an adequate remedy at law, and, there- 
 fore, equity will not interfere when the tax is to be col- 
 lected out of personal property unless it has some pecu- 
 liar, intrinsic value to the owner that cannot be com 
 pensated in money.^^^ 
 
 Tender. — The constitution of Florida provides that 
 "no person or corporation shall be relieved from the 
 payment of any tax that maj be illegal, or illegally or 
 irregularly assessed, until he or it shall have paid such 
 portion of his or its taxes as may be legal, and legally 
 and regularly assessed."^^^ In construing this, the su- 
 preme court of Florida has held that payment is not a 
 
 144 Murphy v. City of Wilmington, 6 Houst. 108, 22 Am. St. 
 Eep. 345. 
 
 145 Bloxhara v. Consumers' etc. R. R. Co., 36 Fla. 519, 51 Am. St. 
 Eep. 44, 18 South. 444, 29 L. E. A. 507, 
 
 146 Id. 
 
 147 Pickett V. Russell, 42 Fla. IIG, 634, 28 South. 764; Smith v. 
 Longe, 20 Fla. 697. 
 
 148 Odlin V. Woodruff, 31 Fla. 160, 12 South. 227; City of Jack- 
 sonville V. Massey Business College (Fla.), 36 South. 432; Florida 
 Packing & Ice Co. v. Carney (Fla.), 38 South. 602. 
 
 149 Const. 1885, art. IX, § 8.
 
 675 ENJOINING TAXATION; GEORGIA. §§ 390,391 
 
 prerequisite to beginning proceedings, "but that such 
 payment must be made before the applicant is relieved 
 from the illegal tax."^^*^ 
 
 § 390. Georgfia.— The Political Code of Georgia pro- 
 vides: "No replevin shall lie, nor any judicial interfer- 
 ence be had, in any levy or distress for taxes under the 
 provisions of this code; but the party injured shall be 
 left to his proper remedy in a court of law having ju- 
 risdiction thereof."^^^ In construing this section the 
 supreme court of Georgia has held that "for an officer 
 to exact money, under the name of a tax, v^here there 
 is no law to warrant the exaction, is not an attempt to 
 collect taxes, but an attempt to collect something else; 
 and the rule which excludes interference in the collec- 
 tion of taxes does not apply."^^^ Following this in- 
 terpretation, it has been held that an injunction will 
 issue to restrain a tax-collector who is attempting to 
 collect an amount claimed to be due for taxes upon 
 property which is not required by law to be returned 
 for taxation in the county in which he holds his of- 
 fice ;^^^ or to restrain the collection of an unconstitu- 
 tional tax.^^^ A party claiming an injunction because 
 of the unconstitutionality of the taxing act or because 
 of an exemption, must make the invalidity as to him 
 clearly and unequivocally appear.^^^ 
 
 § 391. Special Assessments.— Where the statute au- 
 thorizes certain street work whenever "in the judgment 
 
 150 Pickett V. Russell, 42 Fla. 116, 634, 28 South. 764. 
 
 151 Pol. Code, § 903. 
 
 152 Decker et al. v. McGowan, 59 Ga. 805. 
 
 153 Penick v. High Shoals Mfg. Co., 113 Ga. 592, 38 S. E. 973. See, 
 also, Linton v. Lucy Cobb Institute, 117 Ga. 678, 45 S. E. 53. 
 
 .154 Wright V. S. W. R. Co., 64 Ga. 783. 
 
 155 L. B. Price Co. v. City of Atlanta, 105 Ga. 358, 31 S. E. 619.
 
 §§ 392,393 EQUITABLE REMEDIES. . 676 
 
 of the city council of said city, the pavement has be- 
 come worn out," a court of equity will not interfere with 
 the exercise of the discretion of the municipal author- 
 ities. And the mere fact that the assessment levied 
 accordingly is excessive is no ground for an injunction 
 where the statute provides an adequate remedy.^ '^^ 
 
 § 392. Idaho — In Idaho, an injunction will issue to 
 restrain the collection of a tax which casts a cloud on 
 the title to land. The rule that there is no cloud where 
 the proceedings are void on their face seems to have 
 been adopted.^ ^^ 
 
 The injunction will not issue after the tax sale; nor 
 will it be granted without notice to the municipality.^^* 
 
 § 393. Illinois — In General — The grounds of the jur- 
 isdiction to enjoin the collection of taxes were at an 
 early date formulated in a definite rule, to which the 
 courts of Illinois have consistently adhered. "A court 
 of equity will not entertain a bill to enjoin the col- 
 lection of a tax, except where the tax is unauthorized 
 by law, or when it is assessed upon property which is 
 exempt from taxation, or when property has been fraud- 
 ulently assessed at too high a rate,"^^'^ or according to 
 a few cases, when the injunction is necessary to pre- 
 
 156 Eegenstein v. City of Atlanta, 98 Ga. 167, 25 S. E. 428; Bice 
 V. Mayor etc. of City of Macon, 117 Ga. 401, 43 S. E. 773. 
 
 157 Bramwell v. Guheen, 3 Idaho, 347, 29 Pac. 110. 
 
 158 Wilson V. City of Boise City, 7 Idaho, 69, 60 Pac. 84. 
 
 159 Siegfried v. Eaymond, 190 111. 424, 60 N. E. 868; Coxe Bros. 
 V. Salomon, 188 111. 571, 59 N. E. 422; White v. Eaymond, 188 111. 298, 
 58 N. E. 976; Earl v. Eaymond, 188 111. 15, 59 N. E. 19; Kochersperger 
 V. Earned, 172 111. 86, 49 N. E. 988; Illinois Central E. E. Co. v. 
 Hodges, 113 111. 323; Porter v. Eockford etc. E. Co., 76 111. 561 (596) 
 (a leading case); Chicago, B. & Q. E. Co, v. Cole, 75 111. 591; Mc- 
 Conkey v. Smith, 73 111. 313; Vieley v. Thompson, 44 111. 9; Munson 
 V. Miller, 66 HI. 380; Union Trust Co. v. Weber, 96 111. 346, 357.
 
 677 ENJOINING TAXATION; ILLINOIS. S 394 
 
 rent irreparable injury.^®** In Illinois, collection of 
 taxes on personal property may be enjoined, in the 
 cases enumerated above, notwithstanding the existence 
 of the legal remedy to recover back the amount of the 
 tax paid, and notwithstanding that the proceedings for 
 collection of the tax may constitute only a case of ordi- 
 nary trespass.^ ^^ 
 
 That the statute under which the assessor made an 
 analysis of the assessment is unconstitutional is not a 
 ground for injunction, where the taxes are authorized 
 and there is no irreparable injury to complainant; a 
 court of law is as competent as a court of equity to try 
 the question of constitutionality.^^^ 
 
 The court will not enjoin the collection of taxes for 
 mere irregularities in the assessment, levying, or col- 
 lection.^ ^^ 
 
 Where the tax-collector levied upon property of one 
 for the taxes of another, and the collector was insol- 
 vent, and replevin would not lie, and the use of the 
 article levied upon was indispensable to the complain- 
 ant's business, an injunction was held proper.^ ^^ 
 
 § 394. Illegality — The courts of Illinois have gone 
 further than most courts in restraining the collection 
 of taxes alleged to be illegal, but have always professed 
 to recognize the universal rule that relief of that kind 
 cannot be granted except upon some ground of equity 
 
 160 Deming v. James, 72 IlL 78; Vieley y. Thompson, 44 111. 9. 
 
 161 Searing v. Heavysides, 106 III. 85. 
 
 162 Ayers v. Widmayer, 188 111. 121, 58 N. E. 956. 
 
 163 Chicago, B. & Q. E. Co. v. Frary, 22 111. 34; see the forcible 
 statement of the reasons for the rule in the opinion of Caton, C. J.; 
 Huck V. Chicago & A. E. Co., 86 111. 360; Union Trust Co. v. Weber, 
 96 111. 346, 351, 357. 
 
 164 Deming v. James, 72 111. 78. The decision appears to rest 
 upon the general ground that the injury is irreparable.
 
 § 394 EQUITABLE REMEDIES. 678 
 
 jurisdiction.^ ^^ The rule is laid down that "when the 
 law has conferred no power to levy a tax, or in case 
 a person or officer not authorized by law to exercise 
 such a power, shall levy a tax, or when the proper per- 
 sons shall make the levy for purposes on the face of 
 the levy, not authorized, or for fraudulent purposes, a 
 court of equity may stay its collection by injunction."^ ^^ 
 
 If the tax is levied for a lawful purpose, and without 
 fraud, a mere erroneous dietermi nation as to the place 
 of the complainant's residence does not constitute such 
 illegality as will be relieved against in equity.^ ^''^ 
 
 As to the stage of the tax proceedings at which the 
 court may interfere, it is held that a court of equity 
 will never restrain the extension of a tax unless it is 
 wholly unauthorized and void in all its parts. If any 
 portion of the tax is valid, then the court will never in- 
 terpose until the taxes have been extended on the col- 
 lector's books.^^® 
 
 The statute providing that the township board of 
 review is authorized to raise complainant's assessment 
 only after giving notice in writing, the collection of 
 the increase of tax based on an increased assessment 
 made without such notice will be enjoined on the 
 ground that the assessment is void as to the increase, 
 and this without reference to the fairness or unfairness 
 of the valuation.^ ^^ 
 
 165 Williams v. Dutton, 184 111. 608, 56 N. E. 868. 
 
 166 Town of Ottawa v. Walker, 21 111. 605, 610, 71 Am. Dec. 121, 
 approved in Knopf v. First Nat. Bank, 173 111. 331, 50 K. E. 660. 
 See, also, Chicago & M. Electric Ey. Co. v. Vollman, 213 111. 609, 
 73 N. E. 360. 
 
 167 Williams v. Dutton, 184 lU. 608, 56 N. E. 868. 
 
 168 Ottawa Glass Co. v. McCaleb, 81 111. 562. 
 
 169 Huling V. Ehrich, 183 111. 315, 55 N. E. 636, and cases cited; 
 and see First Nat. Bank of Shawneetown v. Cook, 77 111. 622; Darling 
 V. Gunn, 50 111. 424.
 
 679 ENJOINING TAXATION; ILLINOIS. § 395 
 
 A tax levied wholly without authority of law may be 
 enjoined; as when an assessor, in assessing a party's 
 personal property and credits, went back three years, 
 and raised the amount of his credits for those years 
 seven thousand dollars, which was entered on the books, 
 and assessed against the party as for such prior 
 years ;^''® or where the assessor assesses personal prop- 
 erty against one who was not the owner of the same, 
 and had no possession or control over the same, and no 
 interest therein, and the boards of review refuse to give 
 relief ;^'^^ or where a county board of review, in equaliz- 
 ing the valuation between the different towns, makes a 
 material increase in the aggregate amount of all the 
 towns, beyond what is actually necessary or inci- 
 dental,^ '^^ or where taxes for several years previous are 
 extended upon the assessment of the current year, in- 
 stead of upon the assessments for the several years for 
 which the levies were made, in violation of the constitu- 
 tional provision that all taxes shall be levied by valua- 
 tion.1'3 
 
 § 395. Illegal Municipal Taxes — Where bonds have 
 been issued by a township to a railroad companj', un- 
 der a vote at an election held without authority of law, 
 both state and local officers may be enjoined from at: 
 tempting to cause a tax to be levied for the payment 
 of the principal or interest of such bonds.^'^* 
 
 A municipality may be enjoined at the suit of a tax- 
 payer, from the levy and collection of a tax for the f)ur- 
 
 170 Allwood V. Cowen, 111 111. 431. See, also, Cox v. Hawkins, 199 
 111. 68, 64 N. E. 1093 (illegal increase of assessment on personal prop- 
 erty enjoined). 
 
 171 Searing v. Heavysides, 106 111. 85, 
 
 172 Kimball v. Merchants' S. L. & T. Co., 89 111. 611. 
 
 173 Town of Lebanon v. Ohio & M. Ey. Co., 77 111. 539. 
 
 174 Eutz V. Calhoun, 100 111. 392.
 
 § 396 EQUITABLE REMEDIES. 680 
 
 pose of paying an indebtedness incurred in excess of 
 the constitutional limit of five per cent of the valuation 
 of taxable property ;^'^^ or for the payment of indebted- 
 ness incurred in the purchase of land for a private pur- 
 pose ;^''^ or for the payment of bounties to volunteer 
 soldiers, etc., where the terms of the statute authorizing 
 a special tax for such a purpose have not been complied 
 with in essential particulars,^'' or the ta^ is unauthor- 
 ized by statute.^ '^ 
 
 When a bill is filed to stay the collection of a tax 
 levied to pay county orders issued for bounties, a por- 
 tion of which are authorized, and a portion unauthor- 
 ized by law, the court should ascertain the amount the 
 unauthorized bear to those authorized, and reduce the 
 levy by the proportion the former bears to the latter, 
 and require the remainder to be collected and applied 
 to the payment of those legally issued.^'® But the gen- 
 eral rule prevails in Illinois, that when a bill is filed 
 to enjoin the collection of taxes, on the ground that 
 they are in part illegal, the bill must show to what ex- 
 tent they are, in order that the court may enjoin only 
 the illegal portion, or must show that they are so levied 
 that it is impossible to discriminate between the legal 
 and illegal portions.^ ^® 
 
 § 396. Illegal Taxes; Parties Plaintiff.— It is held that 
 the illegal tax, as an entirety, may be enjoined either 
 where the suit is by a number of tax-payers on behalf 
 
 175 Howell V. City of Peoria, 90 111. 104; City of Springfield v. 
 Edwards, 84 111, 626; Dollabon v. Whittaker, 187 lU. 84, 58 N. E. 301. 
 
 176 Sherlock v. Village of Winnetka, 59 111. 389, 68 111. 530. 
 
 177 Vieley v. Thompson, 44 111. 9. 
 
 178 Drake v. Phillips, 40 111. 388. 
 
 179 Briscoe v. Allison, 43 111. 291. 
 
 180 Taylor v. Thompson, 42 111. 9.
 
 681 ENJOINING TAXATION; ILLINOIS. § iJy. 
 
 of themselves and others similarly situated, or by one 
 suing on behalf of all others, or even where the suit is 
 by one suing for himself alone, where the effect would 
 be to settle the rights of all;^^^ and this for the purpose 
 of avoiding a multiplicity of actions by different tax- 
 payers, although there is no privity or legal relation of 
 common property or common right as between the tax- 
 payers, and the only common interest between them is 
 in the question of the legality of the tax, and in the 
 fact that all are injured by the same wrongful and 
 illegal act of levying the tax.^^^ -^^^ ^^j^g right of a 
 single tax-payer should be limited to himself, and he 
 should not be permitted to enjoin the entire tax, in a 
 case where it could not be presumed that the other 
 tax-payers desired to stop the administration of the 
 government, and where such disastrous consequence 
 would surely result.^^^ 
 
 § 397. Exempt Property .^A court of equity will grant 
 relief, by way of injunction, against the imposition of a 
 tax upon property exempt from taxation,^ ^* In cases 
 where a tax is assessed upon property, some of which 
 is exempt, equity will enjoin the collection of that 
 
 181 Knopf V. First Nat. Bank, 173 111. 331, 50 N. E. 660, reviewing 
 the Illinois cases. In this ease the suit was by a single tax-payer, 
 "but the necessary effect is to determine the right of every tax-payer 
 in the district, and it would be an irrelevant distinction that the bill 
 does not, in set phrase, purport to be on behalf of all others having 
 individual and separate interests of the same character." See Ger- 
 man Alliance Ins. Co. v. Van Cleve, 191 111. 410, 61 N. E. 94 (action 
 by forty-two complainants). 
 
 182 Knopf V. First Nat. Bank, 173 111. 331, 50 N. E.'660. 
 
 183 Board of Supervisors of Du Page County v. Jenks, 65 111. 275, 
 as explained in Knopf v. First Nat. Bank, 173 111. 331, 50 N. E. 660. 
 
 184 Siegfried v. Kaymond, 190 111. 424, 60 N, E. 868, and cases cited; 
 Eosehill Cemetery CJo. v. Kern, 147 111. 483, 35 N. E. 240; Illinoia 
 Central E. E. Co. v. Hodges, 113 111. 323; Huck v. Chicago & A. E, 
 Co., 86 111. 360.
 
 § 398 EQUITABLE REMEDIES. 682 
 
 part of the tax whicli is assessed upon the exempt prop- 
 erty, if it is possible to ascertain what part of the tax 
 assessed upon the whole property is assessed upon the 
 property which is exempt from taxation ;^^^ but the 
 complainant must show that the property claimed to be 
 exempt was included in the assessment.^ ^^ 
 
 The owner has a right to assume that the exemption 
 will be respected, and is not required to take notice of 
 its illegal assessment and valuation, nor to appear be- 
 fore the local tribunals in that regard.^ ^'^ He must, 
 however, be prepared to maintain his claimed right of 
 exemption by clear and satisfactory proof. ^^^ If he has 
 elected to pursue his statutory remedy by application 
 to the board of review, and their decision is adA^erse, 
 his further remedy is by appeal from that decision, not 
 by bill in chancery to enjoin the collection of the tax.^®^ 
 
 § 398. Fraudulent Increase of Assessment. — The com- 
 plainant should first seek a hearing from the board of 
 review. If that board refuses a hearing, or fails to 
 consider the objections, mandamus to compel it to per- 
 form its duty in that respect will lie, is an adequate 
 remedy, and should be resorted to.^^*^ "The valuation 
 
 185 Siegfried v. Raymond, 190 111. 424, 60 N. E. 868, and cases 
 eitcd. The court will not enjoin the collection of the whole tax be- 
 cause in determining the valuation of an aggregate property exempt 
 pjoperty muy have been included as a factor; it is incumbent on the 
 plaintiff to show that it is injured, and to what extent, by the fact 
 of such inclusion, as the exempt property may be of no value, or of 
 a purely nominal value: Huck v. Chicago & A. R. Co., 86 lU. 360. 
 
 186 Siegfried v. Raymond, 190 111. 424, 60 N. E. 868. 
 
 187 Rosehill Cemetery Co. v. Kern, 147 111. 483, 35 N. E. 240; lUi- 
 Bois Central R. R. Co. v. Hodges, 113 111. 323. 
 
 188 Rosehill Cemetery Co. v. Kern, 147 111. 483, 35 N. E. 240. 
 
 189 Preston v. Johnson, 104 111. 625. 
 
 190 Standard Oil Co. v. Magee, 191 111. 84, 60 N. E. 802, and cases 
 cited; Coxe Bros. v. Salomon, 188 111. 571, 59 N. E. 422 (postponement 
 «f hearing by board until too late for mandamus, not a ground for
 
 683 ENJOINI^'G TAXATlOiN; ILLINOIS. § SUS 
 
 is not [like an assessment of exempt property] an act 
 without jurisdiction or authority, and, if it is excessive, 
 the law intends that application shall be made to the 
 board Fraud is a familiar ground of equity jur- 
 isdiction, and, if an assessment is fraudulent, equity 
 should relieve against it, where the tax-payer has been 
 diligent in seeking the remedy which the statute affords. 
 In matters of revenue it is important that all questions 
 should be speedily settled, and the tax-payer should 
 first seek the remedy given by the statute, which* it is 
 presumed will be suflQcient, If he fails to do so, it is 
 his own neglect or folly."^^^ 
 
 When the board of review have jurisdiction of the 
 person and of the subject-matter, the court has no 
 power to restrain the collection of the tax, in the ab- 
 sence of fraud either in the procedure of the board or 
 in the conclusion reached by them.^^^ Fraudulent con- 
 duct on the part of the assessor is purged by the hear- 
 ing, review, and action of the board of review, if the 
 latter is not charged with having itself been guilty of 
 fraud.^^* 
 
 The determination of the value to be fixed on prop- 
 erty liable to be assessed is not, in the absence of fraud, 
 subject to the supervision of the judicial department 
 
 injunction afterwards) ; White v. Eayrnond, 188 111. 298, 58 N, E. 976, 
 and cases cited; Kinley Mfg. Co. v. Kochersperger, 174 111. 379, 51 
 N. E. 648; New Haven Clock Co. v. Kochersperger, 175 111. 383, 51 
 N. E. 629 (an important case); Kochersperger v. Lamed, 172 111. 86, 
 49 N. E. 988; Beidler v. Kochersperger, 171 111. 563, 49 N. E. 716; 
 Camp V. Simpson, 118 111. 224, 8 N. E. 308; Felsenthal v. Johnson, 104 
 IlL 21. 
 
 191 New Haven Clock Co. v. Kochersperger, 175 111. 383, 51 N. E. 
 629. 
 
 192 Earl v. Raymond, 188 111. 15, 59 N. E. 19; American Express 
 Co. V. Eaymond, 189 111. 232, 59 N. E. 528; Sterling Gas Co. v. Higby, 
 134 111. 557, 25 N. E. 660. 
 
 193 Burton Stock-car Co. v. Traeger, 187 111. 9, 58 N, E. 418, and 
 eases cited.
 
 S 398 EQUITABLE EEMEDIES. 684 
 
 of the state, under a provision of the constitution of 
 Illinois.^'* Where, however, the valuation is so grossly 
 out of the way as to show that the assessor could not 
 have been honest in his valuation, and must have known 
 of its excessive character, such valuation will be ac- 
 cepted as proof of a fraud upon his part against the 
 tax-payer, and in such case a court of equity will grant 
 relief; but the excessive valuation by itself does not 
 establish fraud, the question depending largely upon 
 the attending circumstances.^ ^^ Thus, where the prop- 
 erty of the complainant was assessed at two and a half 
 times its cash value, as part of a general plan of dis- 
 honest spoliation, by which complainant and others 
 were selected as victims from whom bribes might be 
 obtained, the assessment should be set aside, unless the 
 complainant is barred of relief in equity by submitting 
 to be sent away from the statutory board of review 
 without a hearing and decision.^ ^^ And where the as- 
 sessor, after he had accepted from the owner a list and 
 valuation of his property, arbitrarily and without no- 
 tice materially increased the valuation, and this in- 
 crease did not come to the owner's knowledge until 
 after the time allowed for legal redress, an injunction 
 
 194 Burton Stoek-Car Co. v. Traeger, 187 111. 9, 58 N. E. 418, and 
 cases cited; New Haven Clock Co. v. Kochersperger, 175 111. 383, 51 
 N. E. 629, and cases cited ("value is largely a matter of opinion, 
 and the opinion of these officers, when honestly exercised and ap- 
 plied upon a basis authorized by the law, cannot be reviewed or re- 
 vised by the courts"); Kochersperger v. Lamed, 172 111. 86, 49 N. E. 
 988; Pacific Hotel Co. v. Lieb, 83 HI. 602 (bill must state facts dis- 
 tinctly showing fraud); Porter v. Eockford etc. K, Co., 76 111. 561, 
 595; Chicago, B. & Q. E. E. Co. v. Cole, 75 111. 591; Ottawa Glove Co. 
 V. McCaleb, 81 111. 556; Union Trust Co. v. Weber, 96 111. 346, 352. 
 
 195 Burton Stock-Car Co. v. Traeger, 187 111. 9, 58 N. E. 418; New 
 Haven Clock Co. v. Kochersperger, 175 111. 383, 51 N. E. 629. 
 
 196 New Haven Clock Co. v. Kochersperger, 175 111. 383, 51 N. E. 
 629.
 
 685 ENJOINING TAXATION; ILLINOIS. § 399 
 
 was proper.^ ®^ Where the state board of equalization, 
 in assessing the projjerty and franchises of a railroad, 
 undertakes to fix valuations through prejudice or a 
 reckless disregard of duty, in opposition to what must 
 necessarily be the judgment of all persons of reflection, 
 it is the duty of the courts to interfere.^ ^® 
 
 . § 399. Special or Local Assessments. — The question of the 
 necessity of a local improvement is, by the law, com- 
 mitted to the city council, and courts have no right to 
 interfere to prevent such improvement except in cases 
 where it clearly appears that such discretion has been 
 abused. The ground on which the courts interfere is 
 that the ordinance is so unreasonable, unjust, and op- 
 pressive, as to render it void.^^^ Courts of equity will 
 interfere to restrain any substantial departure from the 
 terms of an ordinance in the performance of work 
 thereunder, if applied to in apt time, while the work is 
 in progress.^^'^ If the work, as performed by the con- 
 tractor, is accepted by the city, and the contractor 
 settled with and paid, the remedy to be invoked by the 
 property-holder, if the work is not done in substantial 
 compliance with the provisions of the ordinance, is the 
 writ of mandamus to compel the city authorities to 
 complete the work as contemplated by the ordinance. 
 An injunction will not be awarded in such case to re- 
 strain the collection of a special assessment.^*^^ 
 
 197 First Nat. Bank of Shawneetown v. Cook, 77 III. 622; Mc- 
 Conkey v. Smith, 73 IlL 313; Cleghorn v. Postlewaite, 43 111. 428. 
 
 198 Chicago, B. & Q. E. Co. v. Cole, 75 HI. 591. 
 
 199 Field V. Village of Western Springs, 181 111, 186, 54 N. E. 929 
 (adequate remedy at law) ; Walker v. Village of Morgan Park, 175 
 111. 570, 51 N. E. 636. 
 
 200 A deviation causing no injury to complainant is not ground 
 for enjoining the collection of the assessment: Rossiter v. City of 
 Lake Forest, 151 111. 489, 38 N. E. 359. 
 
 201 Canister v. Kochersperger, 168 111. 334, 48 N. E. 156; Heinroth
 
 § 400 EQUITABLE EEMEDIES. 686 
 
 § 400. Indiana. — An injunction will not be granted 
 at the suit of a tax-payer because of irregularities in 
 the proceedings of the county officers, where there was 
 autliority to levy the tax.^"^ it is only in cases where 
 the record shows a clear invasion of the rights of the 
 citizens by void acts, and they have no remedy by the 
 ordinary processes of the law, that the court will in- 
 terfere by injunction.2^^ 
 
 A court of equity will not interfere to protect a per- 
 son from the payment of a just tax,-°^ nor will it give 
 relief where he is not prejudiced in a substantial 
 right.205 
 
 There can be no injunction when the acts alleged 
 amount to no more than a simple threat to commit a 
 trespass ; as where the complaint does not aver that the 
 tax duplicate is in the hands of the treasurer, without 
 which, having no power to levy, the act of leying would 
 be a mere trespass.^ "^^^ 
 
 Where an attempt to annex territory to a city is in- 
 
 V. Kochersperger, 173 111. 205, 50 N. E, 171; Smith v. Kochersperger, 
 180 111. 527, 54 N. E. 614. 
 
 202 Eicketts v. Spraker, 77 Ind. 371; Yocum v. First Nat. Bank 
 (Ind.), 38 N. E. 599; Hendricks v. Gilchrist, 76 Ind. 369; City of 
 Delphi V. Bowen, 61 Ind. 33; Center & W. Gravel Eoad Co, v. Black, 
 32 Ind. 468; Cleveland, C. C. & St. L, Ey. Co. v. Town of Waynetown, 
 153 Ind. 550, 55 N. E. 451; Crowder v. Eiggs, 153 Ind. 158, 53 N. E. 
 1019; Morton C. Hunter Stone Co. v. Woodard, 152 Ind. 474, 53 N. E. 
 947; McCrory v. O'Keefe, 162 Ind. 534, 70 N. E. 812. 
 
 203 Yocum V. First Nat. Bank (Ind.), 38 N. E. 599. See notes be- 
 low for instances of illegal taxes enjoined; also. Knight v. Turnpike 
 Co., 45 Ind. 134 (illegal tax for benefit of a turnpike company which 
 had not been incorporated); Toledo etc. E. Co. v. City of Lafayette, 
 22 Ind. 262. 
 
 204 Eeynolds v. Bowen, 138 Ind. 434, 36 N. E. 756, 37 N. E. 962. 
 
 205 Miller v. Vollmer, 153 Ind. 26, 53 N. E. 949. 
 
 206 Anthony v. Sturgis, 86 Ind. 479. See, also. Smith v. Smith, 159 
 Ind. 3S8, 65 N. E. 183, where suit before threat to levy was held 
 premature.
 
 687 ENJOINING TAXATION; INDIANA. S 4 00 
 
 valid, a municipal tax on property situated in such dis- 
 trict may be enjoined.^"^ 
 
 Where a person resides in a town in Indiana, and his 
 personal property belongs elsewhere, such town has no 
 authority to assess taxes upon such property, and the 
 collection of the same will be enjoined. ^''^ 
 
 The sale of lands, for the payment of delinquent 
 taxes thereon, where the owner has leviable personal 
 property within the county suificient to pay the taxes 
 assessed against him, may be enjoined.^"** 
 
 A tax unauthorized by law, against the capital stock 
 of a foreign corporation, may be enjoined.-^^ 
 
 A reason for the free exercise of the remedy of in- 
 junction to restrain the collection of an illegal and void 
 tax, regardless of whether the case presents some pc^ 
 culiar ground for equity jurisdiction, as the prevention 
 of a multiplicity of suits, or the removal of a cloud 
 upon title, or the inadequacy of an action at law, is 
 found in the abolishment of the distinctions between 
 actions at law and suits in equity.^^^ 
 
 Courts will not give relief against erroneous assess- 
 ments by the state board of equalization, except on the 
 ground of fraud.^^^ 
 
 Where the statute gives persons aggrieved by the act« 
 of the board of county commissioners the right to ap- 
 peal, an injunction will not be granted to prevent the 
 
 207 City of Logansport v. La Rose, 99 Ind. 117; Windman v. City 
 of Vincennes, 58 Ind. 480; City of Peru v. Bearss, 55 Ind. 576. 
 
 208 Eversole v. Cook, 92 Ind. 222; and see Luke v. Sheridan, 26 
 Ind. App. 529, 60 N. E. 359; Stephens v. Smith, 30 Ind. 120, 65 N. E- 
 546. 
 
 209 Abbott V. Edgerton, 53 Ind. 196. 
 
 210 Eiley v. Western Union Tel. Co., 47 Ind. 511. 
 
 211 City of Delphi v. Boweii, 61 Ind. 29, 37. 
 
 212 Cleveland, C. C. & St. L. E. Co. v. Backus, 133 Ind. 513, 33 N. 
 E. 421, 18 L. R. A. 729.
 
 S 401 EQUITABLE REMEDIES. 688 
 
 collection of a tax levied by such board ;2^^ this has been 
 frequently held of acts of such boards in passing upon 
 a petition for county aid in the construction of rail- 
 roads.214 But when a tax in aid of railroads is levied 
 in excess of the amount authorized by statute, the col- 
 lection of the excess may be enjoined by one who has 
 paid the part of the tax legally due.^^^ 
 
 The right to enjoin an illegal tax may be lost by 
 laches.^^* 
 
 § 401. Tender of Legal Tax — ^While injunction is the 
 proper remedy against the collection of taxes where the 
 assessment is wholly void,^^'^ yet the burden is upon the 
 plaintiff to allege and prove facts necessary to show 
 that the whole of the property in question was not sub- 
 ject to assessment for taxation.^^^ If any of the taxes 
 against which the injunction is sought were legally 
 
 213 Jones V. Cullen, 142 lud. 335, 40 N. E. 124; Senour v. Matchett, 
 140 Ind. 636, 40 N. E. 122; Pittsburgh, C. C. & St. L, R. Co. v. Har- 
 den, 137 Ind. 486, 37 N. E. 324; otherwise, where the order levying 
 a special tax is an administrative one, from which there is no appeal: 
 Board of Commissioners of Owens Co. v. Spangler, 159 Ind. 575, 65 
 N. E. 743. 
 
 214 See cases in last note; Faris v. Reynolds, 70 Ind. 359; s. c. 
 svb noin. Reynolds v. Faris, 80 Ind. 14; Board of Commissioners v. 
 Hall, 70 Ind. 469; Goddard v. Stockman, 74 Ind. 400; Hill v. Probst, 
 120 Ind. 528, 22 N. E. 664; Bell v, Maish, 137 Ind. 226, 36 N. E. 358, 
 1118. 
 
 215 Miles V. Ray, 100 Ind. 166. 
 
 216 Jones V. Cullen, 142 Ind. 335, 40 N. E. 124; Vickery v. Blair, 
 134 Ind. 554, 32 N. E. 880; Montgomery v. Wasem, 116. Ind. 343, 15 
 N. E. 795, 19 N. E. 184 (drainage assessment). 
 
 217 Buck V. Miller, 147 Ind. 586, 62 Am. St. Rep. 436, 45 N. E. 647, 
 47 N. E. 8, 37 L. R. A. 384; Senour v. Ruth, 140 Ind. 318, 39 N. E. 
 946; Yocum v. First Nat. Bank, 144 Ind. 272, 43 N. E. 231, and cases 
 cited; Hobbs v. Board of Commissioners, 103 Ind. 575, 3 N. E. 263; 
 and notes supra. 
 
 218 Buck V. Miller, supra; Saint v. Welsh, 141 Ind. 382, 40 N. E. 
 003.
 
 689 ENJOINING TAXATION; INDIANA. { 402 
 
 assessed, then, in the absence of a showing of payment 
 or tender, no relief can be granted.^^® The tender must 
 be kept good by a payment into court.^^*' 
 
 Where the complaint is not to enjoin the collection of 
 taxes, part of which are legal and part illegal, but to 
 set aside a particular order alleged to be void, whereby 
 a specific sum was illegally added to the assessed value 
 of the plaintiff's property, the averment of payment or 
 tender of payment of the legal taxes need not be 
 madef^^ so, where plaintiff seeks to prevent the levy 
 of an assessment upon property not subject to taxa- 
 tion.^2^ 
 
 § 402. Special Assessments. — An injunction will issue 
 to restrain the collection of a special assessment by a 
 municipal body in cases where, through some defect 
 in the proceedings or otherwise, there is a want of jur- 
 isdiction to make the levy, or the assessment is abso- 
 lutely void.^^^ Thus, it is proper where an assessment 
 is levied for the purpose of improving a public market 
 
 219 Buck V. Miller, supra; Shepardson v. Gillette, 133 Ind. 125, 31 
 N. E. 788; Bundy v. Summerland, 142 Ind. 92, 41 N. E. 322; Smith 
 V. Union County Nat. Bank, 131 Ind. 201, 30 N. E. 948; Smith v. 
 Eude Bros. Mfg. Co., 131 Ind. 150, 30 N. E. 947; Hyland v. Central 
 I. & S. Co., 129 Ind. 68, 28 N. E. 308, 13 L. E. A. 515; City of Logans- 
 port V. McConnell, 121 Ind. 419, 23 N. E. 264; Montgomery v. Was- 
 Bem, 116 Ind. 343, 15 N. E. 795, 19 N. E. 184 (drainage assessment); 
 Board of Commissioners v. Dailey, 115 Ind. 360, 17 N. E. 619; Mor- 
 rison V. Jacoby, 114 Ind. 84, 14 N. E. 546, 15 N. E. 806 (a lead- 
 ing case); Kicketts v. Spraker, 77 Ind. 371; Mesker v. Koch, 76 
 Ind. 68; City of Delphi v. Bowen, 61 Ind. 33. 
 
 220 Bundy v. Summerland, 142 Ind. 92, 41 N. E. 322; Hewett v. Fen- 
 Btamaker, 128 Ind. 315, 27 N. E. 621; City of Logansport v. Case, 
 124 Ind. 254, 24 N. E. 88 (enjoining execution of tax deed); Morrison 
 V. Jacoby, 114 Ind. 84, 14 N. E. 346, 15 N. E. 806. 
 
 221 Yoeum v. First Nat. Bank, 144 Ind. 272, 43 N. E. 231. 
 
 222 Hyland v. Brazil Block Coal Co., 128 Ind. 335, 26 N. E. 672. 
 
 223 Studabaker v. Studabaker, 152 Ind. 89, 51 N. E. 933; De Fuj 
 T. City of Wabash, 133 Ind. 336, 32 N. E. 1016. 
 
 Equitable Eeraedies, Vol. 1 — 44
 
 ^ 402 EQUITABLE REMEDIES. 690 
 
 altliongh tlio statute autliorizcs such assossmonts only 
 for streets and liigbways ;--^ or where the engineer im- 
 properly assesses property not abutting on the street 
 improved;"-^ or where the preliminary estimate which 
 is a requisite of jurisdiction is omitted;-^*' or where the 
 work is of absolutely no benefit to plaintiff's land ;-^'^ or 
 where the municipal body intends to assess the total 
 cost, irrespective of benefits, against the abutting 
 owner.^^^ 
 
 Where the local board has jurisdiction of the general 
 subject, the assessment cannot be collaterally attacked 
 by injunction. 22^ An injunction will not be granted 
 because of mere irregailarities in the proceedings which 
 do not deprive the assessing body of jurisdiction or 
 make the assessment void.^^^ Thus, it will not be 
 granted because the boards of commissioners of two 
 counties sat separately and not conjointly, nor because 
 viewers obtained an extension of time in which to make 
 their report ;-^^ nor because the work is not completed 
 according to plans and specifications.^^- 
 
 Equitable relief will not be granted when there is an 
 adequate remedy at law. Thus, an injunction will not 
 issue because an assessment will be greater than the 
 actual benefits, when the statute provides an adequate 
 remedy by hearing before a special tribunal,^^^ nor be- 
 
 224 City of Fort Wayne v. Shoaf, 106 Ind. 66, 5 N. E. 403. 
 
 225 City of Terre Haute v. Mack, 139 Ind. 99, 38 N. K 468. 
 
 226 Goring v. McTaggart, 92 Ind. 200. 
 
 227 Millikan v. Wool, 133 Ind. 51, 32 N. E. 828. 
 
 228 McKee v. Town of Pendleton, 154 Ind. 6o2, 57 N. E. 532. 
 
 229 Tucker v. Sellers, 130 Ind. 514, 30 N. E. 531. 
 
 230 Florer v. McAfee, 135 Ind. 540, 35 N. E. 277. 
 
 231 Sarber v. Eankin, 145 Ind. 236, 56 N. E. 220. 
 
 232 Studabaker v. Studabaker, 152 Ind. 89, 51 N. E. 933; Muncey 
 V. Joest, 74 Ind. 409. 
 
 233 Taylor v. City of Crawfordsville, 15o Ind. 403, 58 N. K 490j Mc- 
 Kee V. Town of Pendleton, 162 Ind. 667, 69 N. E. 997.
 
 691 ENJOINING TAXATION; IOWA, § 403 
 
 cause the requisite petition with the signatures of the 
 owners of a majority of the frontage has not been filed 
 when no appeal has been taken as provided by stat- 
 ute.234 jjj g^(>]j a case it is held that the fact that others 
 have appealed and have succeeded in having the assess- 
 ment declared void will not avail. Likewise, an in- 
 junction will not issue against the collection of an 
 amount spent for drainage purposes upon the ground 
 that the requisite petition was not filed, for the statute 
 provides an adequate remedy in all cases where the 
 preliminary notice has been given.^^^ And the relief 
 will of course be denied when the owner has unsuccess- 
 fully prosecuted his legal remedy.^^^ 
 
 A landowner who stands by in silence, with full 
 knowledge, and allows the work to be completed, is 
 estopped by acquiescence from attacking the proceed- 
 ings in a collateral action for an injunction.^^'^ 
 
 Where part of an assessment is valid and part in- 
 valid, a tender of the valid part is a prerequisite to an 
 injunction against the invalid part.^^* 
 
 § 403. Iowa — In Iowa, an injunction will issue 
 against the collection of a tax which is illegal, and not 
 merely irregular.-^^ Thus, an injunction will be granted 
 to restrain the collection of an increase made by a 
 county board of equalization without authority.^*** 
 
 234 Cason V. Harrison, 135 Ind. 330, 35 N. E. 268. 
 
 235 Zimmerman v. Savage, 145 Ind. 124, 44 N. E. 252. 
 
 236 Du Puy V. City of Wabash, 133 Ind. 336, 32 N. E. 1016. 
 
 237 Montgomery v. Wasem, 116 Ind. 343, 15 N. E. 795, 19 N. E. 
 184; Muncey v. Joest, 74 Ind. 409. 
 
 238 Studabaker v. Studabaker, 152 Ind. 89, 51 N. E. 933; Mont- 
 gomery V. Wasem, 116 Ind. 343, 15 N. E, 795, 19 N. E. 184; Elorer v. 
 McAfee, 135 Ind. 540, 35 N. E. 277. 
 
 239 Montis V. McQuiston, 107 Iowa, 651, 78 N. W. 704; Chicago, 
 M. & St. P. Ey. Co. V. Phillips, 111 Iowa, 377, 82 N. W. 787. 
 
 240 Brandirf v. Harrison Co., 50 Iowa, 164; Montis v. McQuiston, 
 107 Iowa, 651, 78 N. W. 704.
 
 S 404 EQUITABLE KEMEDIES. 692 
 
 Likewise, an injunction will issue to restrain the col- 
 lection of a tax levied by virtue of a mistaken certificate 
 as to the result of an election ;2^^ and when the tax was 
 voted by the electors as the result of misrepresenta- 
 tion.2« 
 
 An injunction will not issue to restrain the collec- 
 tion of a tax when there is an adequate remedy at law 
 by appeal. Thus, an injunction will not be granted be- 
 cause of corruption in levying the tax, because an ade- 
 quate legal remedy is provided.^^^ Nor will such relief 
 be granted when there is an adequate remedy by ap- 
 plication to the board of equalization, and no such ap- 
 plication is made.^^* 
 
 In order to obtain an injunction to restrain a sale 
 for taxes, the plaintiff must show that he is the owner 
 of the land about to be sold. When there is grave 
 doubt as to the ownership, the injunction will be re- 
 fused.^^'^ 
 
 § 404. Special Assessments — An injunction will issue 
 against the collection of a special assessment when 
 there is a jurisdictional defect in the proceedings. 
 Thus, where the city council neglects to determine in 
 advance of the publication of notice the kind of material 
 to be used, as required by statute, an injunction will 
 issue.^*® And in such a case the owner is not estopped 
 because some of the work has been done.^^' If a city 
 
 241 CatteU V. Lowry, 45 Iowa, 478. 
 
 242 Sinnett v. Moles, 38 Iowa, 25. 
 
 843 Bogaard v. Independent School Dist., 93 Iowa, 269, 61 N. W. 
 859. 
 
 244 Collins V. City of Keokuk, 118 Iowa, 30, 91 N. W. 791. 
 
 245 Broderick v. Allamakee County, 104 Iowa, 750, 73 N. W. 884. 
 
 246 Coggeshall v. Des Moines, 78 Iowa, 235, 41 N. W. 617. Be- 
 hearing denied, 42 N. W. 650. 
 
 847 Id.
 
 693 ENJOINING TAXATION; KANSAS. § 405 
 
 council has no authority whatever to assess the prop- 
 erty of the plaintiff for an improvement, he may enjoin 
 the enforcement of the assessment without resorting to 
 the appeal to the district court provided for in Code of 
 1S9T, section 839.^*^ Where the entire proceedings for 
 a street improvement are void, a sale of his property 
 thereunder may be enjoined, though he did not appear 
 before the council and object to the assessment.^*' 
 
 § 405. Kansas. — The Kansas code provides that "an 
 injunction may be granted to enjoin the illegal levy of 
 any tax, charge, or assessment, or the collection of any 
 illegal tax, charge or assessment, or any proceeding to 
 enforce the same; and any number of persons whose 
 property is affected by a tax or assessment so levied 
 may unite in the petition filed to obtain such injunc- 
 tion."^^® The supreme court of the state has held that 
 this gives an enlarged or additional remedy to the tax- 
 payer, but that the jurisdiction is to be exercised upon 
 equitable principles.^^^ An injunction will therefore 
 issue at the suit of interested parties to restrain the col- 
 lection of an illegal tax as against themselves. Thus, 
 where an assessor illegally raises an assessment on per- 
 sonal property after a proper return has been made, an 
 injunction will issue.^^^ Likewise, where a railroad 
 is assessed at its full value while other property is 
 rated at only twenty-five per cent, the company may 
 obtain an injunction against the collection of the illegal 
 
 248 Ft. Dodge Electric L. & P. Co. v City of Ft. Dodge, 115 Iowa, 
 568, 89 N. W. 7, and cases cited. 
 
 249 Gallagher v. Garland (Iowa), 101 N. W. 867. 
 
 250 Code, S 253. 
 
 251 Stewart v. Commisaioners of Wyandotte Co., 45 Kan. 708, 29 
 Am. St. Rep. 746, 26 Pac. 683. 
 
 252 Gibbina v. Adamson, 44 Kan. 203, 24 Pac. 51.
 
 § 405 EQUITABLE EEMEDIES. 694 
 
 excess upon tendering tlie amount legally due.^^^ 
 Again, where a state board of equalization orders an in- 
 crease in assessments upon all except railroad property, 
 and the local ofScers fail to make the increase, the rail- 
 road company is injured and may obtain an injunc- 
 tion.2^^ And an injunction will also issue when a bank 
 is illegally assessed on its capital stock,^^^ But the in- 
 junction will not issue merely because plaintiff fears 
 that an illegal tax may be levied.^^* 
 
 Where, however, the property is not exempt from 
 taxation, and in justice the tax ought to be paid, an 
 injunction will not issue to restrain its collection be- 
 cause of errors or irregularities in the proceedings of 
 the taxing oflficers.^^'^ Thus, an injunction will not 
 issue when a tax legally voted is illegally reduced ;-^^ 
 nor where assessments are based upon only twenty-five 
 per cent of the actual cash value although a statute 
 requires that they be levied at the actual value ;-^^ nor 
 when the assessment is set out in detail on the books 
 when a statute provides that it be groufted under one 
 head.^^'' Likewise, it has been held that the assessment 
 
 253 Chicago, B. & Q. E. Co. v. Board of Commissioners, 54 Kan. 781, 
 39 Pac. 1039. 
 
 254 Missouri, K. & T. Ey. Co. v. Board of Commissioners, 9 Kan. 
 App. 350, 58 Pac. 121. 
 
 255 First Nat. Bank v. Fisher, 45 Kan. 726, 26 Pac. 482. 
 
 256 Wyandotte & K. C. Bridge Co. v. Board of Commissioners, 
 10 Kan. 326. 
 
 257 Kansas Mut. Life Assn. v. Hill, 51 Kan. 636, 33 Pac. 300; 
 Missouri Eiver F. S. & G. E. Co. v. Morris, 7 Kan. 210; Challiss v. 
 Commrs, of Atchison County, 15 Kan. 49; Chicago, B. & Q. E. Co. v. 
 Clerk of Norton County, 55 Kan. 386, 40 Pac. 654; Parker v. Challiss, 
 9 Kan. 155; Button v. Citizens' Nat. Bank, 53 Kan, 440, 36 Pac. 719; 
 Eyan v. Board of Commissioners, 30 Kan. 185, 2 Pac. 156; Citv of 
 Lawrence v. Killam, 11 Kan. 499. 
 
 258 Seward v. Eheiner, 2 Kan. App. 95, 43 Pac. 423. 
 
 259 Challiss V. Eigg, 49 Kan. 119, 30 Pac. 190. 
 
 260 Kansas City, Ft. S. & G. E. E. Co. v. Scammon, 45 Kan. 481, 25 
 Pae. 858.
 
 695 ENJOINING TAXATION; KANSAS. S 406 
 
 of some at the full cash value while others are assessed 
 at much less,^*'^ or the failure of township assessors to 
 meet and agree upon an equal basis of Yaluation,^^^ or 
 the levying of a slight excess,^*'^ are all mere irregulari- 
 ties which do not warrant the issuance of an injunction. 
 For the same reason, an injunction will not issue when 
 an assessment is excessive merely as an error of judg- 
 ment, unless the excess is so great as to raise a pre- 
 sumption of fraud.^^"* And it is well settled that it 
 will not issue when an error in assessment is induced 
 by the action of the tax-payer himself.-^^ 
 
 § 406. Parties. — Under the statute any one or more 
 of a number of persons, whose property is affected by 
 an illegal tax or assessment, may maintain an action 
 to enjoin the collection of such tax or assessment so 
 far as it affects his or their property, without joining 
 others as plaintiffs whose property may also be af- 
 fected.^*^^ This does not authorize, however, one to 
 maintain an action for the benefit of all.^^' And where 
 the plaintiff is a municipal corporation it will not be 
 allowed to maintain the action for the benefit of its 
 citizens.^^^ In such a case there is a double reason for 
 refusing relief, for the corporation has no such direct 
 interest as to give it a standing in court to enjoin any 
 part of the tax, for it is not a tax-payer. The statute 
 
 261 Adams v. Beman, 10 Kan. 37. 
 
 262 Smith V. Commrs. of Leavenworth Co., 9 Kan. 296. 
 2G3 Id. 
 
 264 Board of Commissioners of Lincoln Co. v. Bryant, 7 Kan. App. 
 252, 53 Pac. 775. 
 
 265 Bank of Santa Fe v. Buster, 50 Kan. 356, 31 Pac. 1094; Win- 
 field Bank v. Nipp, 47 Kan. 744, 28 Pac. 1015. 
 
 266 Code, § 253; Gilmore v. Fox, 10 Kan. 509. 
 
 267 "Wyandotte & K. C. Bridge Co. v. Board of Commissioners, 10 
 Kan. 326. 
 
 268 Center Township v. Hunt, 16 Kan. 430.
 
 § 407 EQUITABLE EEMEDIES. 696 
 
 does not give the right to two or more persons to unite 
 in an action to enjoin two illegal taxes severally as- 
 sessed against each of them. When the tax is illegal 
 in itself, then as many as have property within the dis- 
 trict may join. But when a tax is valid, and becomes 
 illegal only as applied to particular persons or prop- 
 erty, or to particular cases, then each person severally 
 interested must sue alone.^"^ 
 
 In actions to restrain the collection of municipal taxes, 
 it is generally held that the taxing corporation is a 
 necessary party defendant.^'^^ The reason for the rule 
 is that such corporation is interested in the outcome, 
 and should not be deprived of its rights without a hear- 
 ing. Where, however, the suit is to enjoin the sale of 
 property under a tax warrant, and the only question is 
 whether the property is subject to levy, the sheriff may 
 be made sole defendant.^'^ 
 
 § 407. Tender — When a tax is valid in part and void 
 in part, an injunction will be refused, upon the prin- 
 ciple that he who seeks equity must do equity, unless a 
 tender is made of the amount legally due.^^^ Thus, 
 where a tax is attacked as being excessive,^^^ or as dis- 
 criminating against the plaintiff,-^^ a tender is a con- 
 dition of relief.^^^ And a mere averment of readiness 
 
 269 Missouri Kiver, F. S. & G. E. Co. v. Morris, 7 Kan. 210. 
 
 270 Gilmore v. Fox, 10 Kan. 509; Jeffries-Ba Som v. Nation, 63 Kan. 
 247, 65 Pac. 226. 
 
 271 Cook V. Condon, 6 Kan. App. 574, 51 Pac. 587. 
 
 272 City of Lawrence v. Killam, 11 Kan. 499; Bank of Garnett v. 
 Ferris, 55 Kan. 120, 39 Pac. 1042; City of Ottawa v. Barney, 10 Kan. 
 270; Gibbins v. Adamson, 44 Kan. 203, 24 Pac. 51; Wilson v. Longen- 
 dyke, 32 Kan. 267, 4 Pac. 361. 
 
 273 City of Ottawa v. Barney, 10 Kan. 270. 
 
 274 Bank of Garnett v. Ferris, 55 Kan. 120, 39 Pao. 1042. 
 
 275 Hagaman v. Commissioners of Cloud County, 19 Kan. 394.
 
 697 ENJOINING TAXATION; KANSAS. § 408 
 
 and willingness to pay is not suflQcient.^^^ Where, 
 however, the tax is wholly void, a tender is obviously 
 unnecessary. 
 
 § 408. Special Assessments. — ^When a special assess- 
 ment is illegal and void, and the action is brought 
 within the statutory time, an injunction will issue 
 against its collection.^^^ Thus, where a city council in- 
 serts in a contract a provision that the contractor shall 
 keep the streets in repair for a term of years, the as- 
 sessment levied is void and an injunction will issue.^^* 
 
 A property owner, however, who lives in the neigh- 
 borhood, who signs the petition for the improvement, 
 and whose property is greatly benefited, is not entitled 
 to an injunction to restrain the collection of an assess- 
 ment levied therefor, although the improvement is made 
 without any authority whatever.^^^ This rule is based 
 upon the doctrine of estoppel. 
 
 By statute it is provided that no suit to enjoin the 
 making of a special assessment shall be brought after 
 the expiration of thirty days from the time the amount 
 due on each lot is ascertained.^*^ Under this statute, 
 it is held that an injunction will not issue when the 
 suit is brought after the expiration of this time, espe- 
 cially if the proceedings are valid on their face.^*^ 
 
 276 First Nat. Bank v. Fisher, 45 Kan. 726, 26 Pac. 48'J. 
 
 277 Andrews v. Love, 50 Kan. 701, 31 Pac. 1094. 
 
 278 City of Kansas City v. Hanson, 8 Kan. App. 290, 55 Pac. 513. 
 
 279 Downs V. Wyandotte Co. Commissioners, 48 Kan. 640, 29 Pac. 
 1077; Stewart v. Commissioners, 45 Kan. 708, 23 Am. St. Eep. 746, 26 
 Pac. 683; Commissioners v. Hoag, 48 Kan. 413, 29 Pac. 758. 
 
 280 Gen. Stats. 1897, c. 32, § 212. 
 
 281 City of Kansas City v. Gray, 62 Kan. 198, 61 Pac. 746; Wahl- 
 green v. City of Kansas City, 42 Kan. 243, 21 Pac. 1068; City of 
 Topeka v. Gage, 44 Kan. 87, 24 Pac. 82; Doran v. Barnes, 54 Kan. 
 2.'?8, 38 Pac. 300; City of Leavenworth v. Jones, 69 Kan. 857, 77 Pac 
 273.
 
 i 409 EQUITABLE REMEDIES. 69S 
 
 Until an appraisement is made and the amount to be 
 charged against each lot or parcel of land is ascertained, 
 no cause of action accrues. Before that time the dan- 
 ger of injury to the plaintiffs is too remote and prob- 
 lematical to warrant the granting of an injunction.^^^ 
 
 An injunction to restrain the building of curbing and 
 the levying and assessing of taxes therefor will not issue 
 when all the things sought to be prevented have actually 
 been done.^^^ 
 
 § 409. Kentucky. — In Kentucky, an injunction will 
 issue to restrain the collection of an illegal and void 
 tax upon the ground of the inadequacy of the remedy 
 at law. "The officer, acting in good faith and under 
 the color of right, is justified by his process, and is not 
 liable as a trespasser ; and, as suit would not lie against 
 the state directly, the only complete remedy is by in- 
 junction."^^^ Thus, an injunction will be granted to 
 restrain the collection of a tax based on an assessment 
 .which has been illegally raised without notice to the 
 tax-payer.^^^ Likewise, the injunction will issue to re- 
 strain the collection of a municipal tax based on an 
 assessment void because the assessor acts under the in- 
 struction of the local legislative body and copies the 
 assessment from the county roll instead of making one 
 himself.-^® And the mere fact that the assessment in- 
 cludes a valid poll-tax is no ground for refusing the in- 
 
 282 Mason v. City of Independence, 61 Kan. 88, 59 Pac. 272; City 
 of Kansas City v. Smiley, 62 Kan. 718, 64 Pac. 613; Dever v. City 
 of Junction City, 45 Kan. 417, 25 Pac. 861. 
 
 283 McCurdy v. City of Lawrence, 9 Kan. 883, 57 Pac. 1057. 
 
 284 Gates V. Barrett, 79 Ky. 295; Negley v. Henderson Bridge Co., 
 107 Ky. 414, 54 S. W. 171. 
 
 285 Negley v. Henderson Bridge Co., 107 Ky. 414, 54 S. W. 171. 
 
 286 Turner v. Town of Pewee Valley, 100 Ky. 288, 38 S. W. 143, 
 688.
 
 699 ENJOINING TAXATION; KENTUCKY, § 409 
 
 junction when it appears" that the tax-payer has suf- 
 ficient personal property out of which it might be satis- 
 fied.^^'^ But the injunction will not be granted merely 
 because the plaintiff thinks the assessment excessive ;-^^ 
 nor will it be granted merely because there have been 
 irregularities in the procedure. Thus, an injunction 
 will not be granted merely because the city has failed 
 to tax certain personalty not exempt from taxation ;-^^ 
 nor because property belonging to a mother and her son 
 has been assessed in the name of the father, it having 
 been so listed by the son.^^^ And it is no ground for 
 an injunction that the taxing officer, who is an officer 
 de facto, may not be the legal official because of certain 
 irregularities in the election.-^^ The court will not, at 
 the suit of an individual tax-payer, inquire into the 
 necessity for the levy.^^^ 
 
 Personal Property. — The rule as laid down above is 
 bioad enough to warrant the issuance of an injunction 
 to restrain the collection of an illegal tax on personal 
 property, for the court holds that there is not an ade- 
 quate remedy at law.^^^ 
 
 An injunction will not issue, however, to restrain 
 the collection of a tax on the ground that property not 
 taxable has been assessed, unless the statutory mode of 
 correction has been tried first^*^^ In such a case there 
 is an adequate remedy at law. 
 
 287 Id. 
 
 288 Eoyer Wheel Co. v. Taylor County, 104 Ky. 741, 47 S. W. 876. 
 
 289 Levi V. City of Louisville, 97 Ky. 394, 30 S. W. 973, 28 L. R. A. 
 4S0. 
 
 290 Eyan v. City of Central City, 21 Ky. Law Eep. 1070, 54 S. W, 2. 
 
 291 Chambers v. Adair, 23 Ky. Law Eep. 373, 62 S. W. 1128. 
 
 292 Mclnerney v. Huelefeld, 116 Ky. 28, 25 Ky. Law Eep. 272, 75 
 6. W. 237. 
 
 293 Gates V. Barrett, 79 Ky. 295. 
 
 294 Bell County Coke & Imp. Co. v. Board of Trustees etc., 19 Ky. 
 Law Eep. 789, 42 S. W. 92.
 
 S 409 EQUITABLE REMEDIES. 700 
 
 Not only will the injunction issue against the collec- 
 tion of an illegal tax, but where the county judge is 
 proceeding to assess property for taxation to which it 
 is not legally liable, he may be restrained from so as- 
 sessing, because his action is final.^^'^ Where, however, 
 the assessment is being made by an ordinary taxing 
 officer from whom an appeal may be taken, an injunc- 
 tion will not issue to restrain the mere making of the 
 assessment. 
 
 A quasi public corporation, such as a water company 
 which supplies a municipality, may enjoin the seizure 
 of its property for taxes, where such seizure would de- 
 prive the public of the benefits to be derived from it. 
 Such a corporation, however, is not entitled to escape 
 taxation, and therefore the court will require it to pay 
 the money into court, or to place the management in 
 the hands of a receiver, in order that the burden may 
 be discharged.2^° 
 
 In an action to enjoin the collection of a tax the pre- 
 sumption is in favor of its legality, and therefore the 
 burden of proof is upon the plaintiff to show its il- 
 legality.-^'' 
 
 If the tax-payer is unsuccessful in his application 
 for an injunction, judgment will be entered against 
 him for the amount of the tax.^^* 
 
 Tender. — Where part of a tax is legal and part il- 
 legal, the tax-payer is entitled to an injunction only 
 upon paying the legal part.^^' 
 
 295 Baldwin v. Shine, 84 Ky. 510, 2 S. W. 164. 
 
 296 Louisville Water Co. v. Hamilton, 81 Ky. 517. 
 
 297 Board of Councilmen of City of Frankfort v. Mason & Foard 
 Co., 100 Ky. 48, 37 S. W. 290. 
 
 298 Town of Central Covington v. Park, 21 Ky. Law Eep. 1847, 56 
 B. W. 650. 
 
 299 Thompson v. City of Lexington, 104 Ky. 165, 46 S. W. 481.
 
 701 ENJOINING TAXATION; LOUISIANA— MAINE. §§410,411 
 
 § 410. louisiana. — In Louisiana, "it is well settled 
 that where an officer is proceeding to collect a state tax 
 illegally, either on account of a void assessment or ir- 
 regularity in the mode of collecting, or for other cause, 
 though the state is interested in such proceeding and 
 the officer is acting under the direct authority from 
 the state, that the proceedings may be arrested by in- 
 junction in a suit against the officer alone. "^'^'^ Where, 
 however, the tax is apparently valid on its face, and 
 the tax roll has been placed in the hands of the tax 
 collector, the legality cannot be tested by an injunction 
 suit against the collector alone.^"^ 
 
 An injunction will not be granted to restrain the col- 
 lection of an excessive tax, unless the tax-payer has 
 first appealed to the board of reviewers ;^°2 nor will it 
 be granted at the suit of a municipal corporation suing 
 in the interests of its tax-payers ;^'^^ nor to prevent the 
 holding of an election to vote a tax.^*^^ 
 
 An injunction may be granted to restrain a sale for 
 taxes which have been paid.^"*^ 
 
 § 411. Maine — The mere illegality of a tax is no 
 ground for the injunction; but the prevention of a 
 multiplicity of suits is very distinctly recognized as a 
 ground, where the entire tax is illegal because assessed 
 without authority of Iaw.^°^ 
 
 300 Budd et al. v. Tax Collector, 36 La, Ann. 959. 
 
 301 Gaither v. Green, 40 La. 362, 4 South. 210 j Kansas City S. A 
 O. Ry. Co. V. Davis, 50 La. 1054, 23 South. 946. 
 
 302 Liquidating Commissioners of N. O. Warehouse Co. y. Marrero, 
 106 La. 130, 30 South. 305. 
 
 303 Town of Donaldsonville v. Police Jury, 113 La. 16, 36 South. 
 873. 
 
 304 Boudanez v. New Orleans, 29 La. Ann. 271. 
 
 305 Kock V. Triche, 52 La. 825, 27 South. 354. 
 
 306 Carlton v. Newman, 77 Me. 408, 1 Atl. 194; see passage quoted 
 iB I Pom. Eq. Jur. (3d ed.), § 260, note (d).
 
 § 412 EQUITABLE REMEDIES. 702 
 
 § 412. Maryland. — In Maryland, "the collection of 
 taxes will not be interfered with or restrained by a 
 court of equity for mere irregularities in their pro- 
 ceedings, or for any hardship that may result from 
 their collection. It is only when the tax itself is 
 clearly illegal, or the tribunal imposing it has clearly 
 exceeded its powers, or the rights of the tax-payers have 
 been violated, that the interposition of the special rem- 
 edy by injunction can be successfully invoked, and 
 only then when no appellate tribunal has been created 
 with power to remedy the wrong."^*^^ In accordance 
 with the rule as thus laid down, an injunction has been 
 granted to restrain the collection of a tax on exempt 
 property.^°^ Likewise, an injunction has been granted 
 to restrain the collection of a tax on property improp- 
 erly returned by the registrar of wills as being in the 
 hands of an administrator, when it has really been dis- 
 tributed.309 
 
 Ordinarily, no relief by injunction will be granted 
 unless the tax-payer applies first to the county commis- 
 sioners for correction of the tax.^^*^ But this applica- 
 tion is unnecessary when the tax is void for a juris- 
 dictional defect.^^^ 
 
 307 County Commissioners of Allegany Co. v. Union M. Co., 61 
 Md. 545. In general, see Mayor etc. of Baltimore v. Porter, 18 Md. 
 284, 79 Am. Dec. 686. 
 
 308 Sindall v. Mayor etc. of Baltimore, 93 Md. 526, 49 Atl. 645; 
 Valentine v. City of Hagerstown, 86 Md. 486, 38 Atl. 931. In Joest- 
 ing V. Mayor, 97 Md. 589, 55 Atl. 456, an injunction was granted 
 restraining the collection of an assessment on property not subject 
 thereto. 
 
 309 Nicodemus v. Hull, 93 Md. 364, 48 Atl. 1094. 
 
 310 Baldwin v. Commissioners of Washington Co., 85 Md. 145, 36 
 Atl. 764; O'Neal v. Va. & Md. Bridge Co., 18 Md. 1, 79 Am. Dec. 669; 
 Methodist Protestant Church v. City of Baltimore, 6 Gill, 391, 48 Am. 
 Dec. 540. 
 
 311 Mayor etc. of Baltimore v. Poole, 97 Md. 67, 54 Atl. 681.
 
 /03 ENJOINING TAXATION; MASSACHUSETTS. §§413,414 
 
 A mere error in the assessment is not ground for re- 
 lief. =^^2 
 
 Under a code provision that courts of equity have no 
 jurisdiction of suits where the original debt or damage 
 does not amount to twenty dollars,^^^ it has been held 
 that an injunction will not issue to restrain the collec- 
 tion of a tax of seven dollars and thirty-two cents.^^* 
 
 § 413. Special Assessments. — Equity will enjoin the 
 collection of special assessments levied without author- 
 ity, in order to prevent multiplicity of suits or cloud 
 on title. Thus, an injunction will issue to prevent 
 the sale of land to satisfy a street assessment levied 
 without the assent of the owners of a majority of feet 
 fronting on the street, w^hen the statute requires such 
 assent.^ ^^ 
 
 § 414. Massachusetts. — The collection of illegal taxes, 
 whether on real or on personal property, is not subject 
 to injunction in this state. A tax-payer who has been 
 illegally assessed has an adequate and complete remedy 
 at law by paying the tax and suing to recover it back.^^** 
 "The legislature has evidently regarded this remedy as 
 adequate and complete, having regard to a prompt and 
 unembarrassed assessment and collection of taxes for 
 the maintenance of the government. "^^^ 
 
 312 Moffatt V. Calvert Co. Commissioners, 97 Md. 266, 54 Atl. 960. 
 
 313 Code of Pub. Gen. Laws, art. 16, § 91. 
 
 314 Kuenzel v. Mayor etc. of Baltimore, 93 Md. 750, 49 Atl. 649. 
 
 315 Holland v. Mayor etc. of Baltimore, 11 Md. 186, 69 Am. Dec. 
 195. 
 
 316 Brewer v. City of Springfield, 97 Mass. 152; Loud v. City of 
 Charlestown, 99 Mass. 208; Macy v. Nantftcket, 121 Mass. 351 (inter- 
 pleader not maintainable to determine in which town plaintiff is liable 
 to be taxed; but the objection may be waived: Forest Eiver Lead Co. 
 V. Salem, 165 Mass. 193, 202, 42 N. E. 802); Kelley v. Barton, 174 
 Mass. 396, 54 N. E. 860. 
 
 317 Loud V. City of Charlestown, 99 Mass. 208.
 
 S 415 EQUITABLE REMEDIES. 704 
 
 Illegal special assessments stand upon the same 
 ground as general taxes, with respect to the adequacy 
 of the legal remedy by paying the assessment and suit 
 to recover back.^^^ An injunction will not issue to re- 
 strain the collection of an illegal assessment for local 
 improvement when there is no threat to collect ;^^* but 
 where the property has been sold for non-payment and 
 the recitals would in a short time become prima facie 
 evidence of the facts stated in the deed, equity may in- 
 terfere to remove the cloud on the title.^^^ Danger of 
 multiplicity of suits to collect installments of the as- 
 sessment is not ground for relief, when these may be 
 avoided by payment of the whole and a single suit to 
 recover back.^^i 
 
 § 415. Michigan — In Michigan, the rule has been 
 laid down by Judge Cooley "that equity will not inter- 
 fere to restrain the collection of the public revenue 
 for mere irregularities. Either it should appear that 
 the property is exempt from taxation, or that the levy 
 is without legal power, or that the persons imposing 
 it were unauthorized, or that they have proceeded 
 fraudulently."^^^ Accordingly, an injunction will not 
 issue against the collection of a general tax on the 
 ground that the money is needed only to replace money 
 unlawfully expended from the public treasury.^^a q^ 
 the other hand, it will issue when the tax is fraudulent- 
 ly levied.^^* Therefore a tax founded on a fraudulent 
 assessment will be enjoined. "An assessment is not 
 
 318 Hunnewell v. City of Charlestown, 106 Mass. 350. 
 
 319 Clark V. City of Worcester, 167 Mass. 81, 44 N. E. 1082. 
 
 320 White V. Gove, 183 Mass. 333, 67 N. E, 359. 
 
 321 Greenhood v. MacDonald, 183 Mass. 342, 67 N. E. 336. 
 
 322 Albany & Boston Min. Co. v. Auditor-General, 37 Mich. 391. 
 
 323 Glee V. Village of Trenton, 108 Mich. 293, 66 N. W. 48. 
 
 324 Merrill v. Humphrey, 24 Mich. 170.
 
 705 ENJOINING TAXATION; MICHIGAN. | 416 
 
 fraudulent merely because of being excessive, if the 
 assessors have not acted from improper motives; but 
 if it is purposely made too high, through prejudice or 
 a reckless disregard of duty, in opposition to what 
 must necessarily be the judgment of all competent 
 persons, or through the adoption of a rule which is 
 designed to operate unequally upon a class, and to 
 violate the constitutional rule of uniformity, the case 
 is a plain one for the equitable remedy of injunction. "^25 
 Likewise, such relief is proper where the assessing 
 officers have purposely, in violation of law, exempted 
 property from taxation, so that the burden rests un- 
 equally.326 g^^ j^ ^.j^g absence of fraud, the mere 
 fact that the assessment is unequal is no ground for 
 an injunction, for the courts will not revise the action 
 of a board of equalization.^27 
 
 Personal Tax. — Ordinarily, an injunction will not 
 issue against the collection of a purely personal tax 
 which is not a charge upon land f^^ nor will it be granted 
 to restrain the collection of a tax upon land when 
 sufficient personal property has already been levied 
 upon to satisfy the tax.^^a g^t there are exceptions 
 when the personal property is of peculiar value to the 
 owner, or where a valuable franchise would be inter- 
 fered with, and in such cases the injunction will be 
 allowed.^^*^ Thus, an injunction has issued against the 
 
 325 Pioneer Iron Co. v. City of Negaunee, 116 Mich. 430, 74 N. W. 
 700, quoting from Cooley, Taxation, p. 784. 
 
 326 Walsh V. King, 74 Mich. 350, 41 N. W. 1080. 
 
 327 McDonald v. City of Escanaba, 62 Mich. 555, 29 N. W. 93. 
 
 828 Henry v. Gregory, 29 Mich. 68; Youngblood v. Sexton, 32 Mich. 
 408, 20 Am. Rep. 654. 
 
 329 Id. 
 
 330 City of Detroit v. Donovan, 127 Mich. 604, 8 Detroit Leg. N. 
 465, 86 N. W. 1032. 
 
 Equitable Remedies, Vol. 1—45
 
 5 416 EQUITABLE REMEDIES. 706 
 
 collection of an illegal personal tax by seizure of rail- 
 road cars.^^^ 
 
 Miilt'rpJicity of ^^uits. — Parties severally taxed, and 
 having no common interest except in the question of 
 law which is involved, cannot unite to have the tax 
 enjoined on the ground of preventing a multiplicity of 
 suits, when their cases severally present no ground for 
 equitable interference.^^^ 
 
 Tender. — When a tax is valid in part, the tax-payer 
 must, as a condition of relief, tender the amount legally 
 ^yp 333 rpj^jg ig upon the principle that he who seeks 
 equity must do equity. 
 
 § 416. Special Assessments. — An injunction will issue 
 when a special assessment levied under an unconstitu- 
 tional act is made a lien on real estate.^^* Thus, an as- 
 sessment levied according to superficial area without 
 regard to benefits will be enjoined. Relief will be 
 granted where the assessment is made without juris- 
 diction.^"^ But an injunction will not issue on account 
 of mere irregularities in the assessment.^^^ 
 
 Where a contract for a public improvement is regu- 
 larly let and the work is accepted by the proper board, 
 an injunction will not issue to restrain the levying of 
 an assessment to pay therefor on the ground that the 
 work has been improperly done.^^^ Such questions are 
 for the legislative body to decide in the exercise of its 
 discretion. 
 
 331 Id. 
 
 332 Youngblood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654, 
 
 333 Albany & Boston Min. Co. v. Auditor-General, 37 Mich. 391; 
 Merrill v. Humphrey, 24 Mich. 170. 
 
 334 Thomas v. Gain, 35 Mich. 156, 24 Am. Rep. 535. 
 
 335 Wreford v. City of Detroit, 132 Mich. 348, 93 N. W. 876. 
 
 336 Township of Flynn v. Woolman, 133 Mich. 508, 95 N. W. 567. 
 
 337 Dixon V. City of Detroit, 86 Mich. 516, 49 N. W. 62S; Motz 
 V. City of Detroit, 18 Mich. 495.
 
 707 ENJOINING TAXATION; MINNESOTA. | 417 
 
 An injunction will not be granted when the com- 
 plainants, upon the principle of equitable estoppel, have 
 lost their right to equitable relief. Thus, where a street 
 is paved as a result of a petition signed by complain- 
 ants and no objection is made until the work is com- 
 pleted, an injunction against the assessment will be re- 
 fused.^^^ Likewise, it will be refused where the prop- 
 erty owners, although they may not have petitioned 
 for the improvement, stand by and make no objection 
 until the work is completed.^^^ 
 
 § 417. Minnesota. — In Minnesota, "the general rule 
 appears to be that equity will not interfere, merely be- 
 cause the tax is illegal and void, but there must be 
 some special circumstances attending the threatened 
 injury, to distinguish it from a mere trespass, and thus 
 bring the case within some recognized head of equity 
 jurisprudence. "^^° To bring the case within the rule it 
 must appear that there will be irreparable injury, or 
 that a multiplicity of suits will result, or that a cloud 
 will be cast upon title to real estate.^"*^ 
 
 Personal Property Tax. — As there is generally an 
 adequate remedy at law in case of a tax on personal 
 property, it is held that an injunction will not be 
 granted to restrain its collection.^^^ In order to bring 
 the case within the jurisdiction it must appear that 
 
 338 Motz V. City of Detroit, 18 Mich. 495. 
 
 339 Walker Township v. Thomas, 123 Mich. 290, 82 N. W. 48; 
 Lundbom v. City of Manistee, 93 Mich. 170, 53 N. W. 161; Byram 
 V. City of Detroit, 50 Mich. 56, 12 N. W. 912, 14 N. W. 698; Farr v. 
 City of Detroit (Mich.), 99 N. W. 19; Gatea v. City of Grand Rapids, 
 134 Mich. 96, 95 N. W. 998. 
 
 340 Clarke v. Ganz, 21 Minn. 387. 
 
 341 Scribner v. Allen, 12 Minn. 148 (Gil. 85). 
 
 342 Clarke v. Ganz, 21 Minn. 387; Laird, Norton & Co. v. Pine 
 County, 72 Minn. 409, 75 N. W. 723; Bradish v. Lucken, 38 Mmn. 186, 
 36 N. W. 454.
 
 § 418 EQUITABLE REMEDIES. 708 
 
 there is no adequate remedy at law or that such rem- 
 edy will be practically valueless, as where the collector 
 is insolvent, or where a multiplicity of suits will be 
 necessary.^^^ The mere fact that there are numerous 
 tax-payers in the same position as the plaintiff does not 
 give jurisdiction on the ground of multiplicity of suits, 
 at least in the absence of any claim that the suit was 
 brought in pursuance 'of a common understanding, and 
 by the authority of such tax-payers.^^^ 
 
 Cloud upon Title. — Where the tax proceedings are 
 void on their face they do not cast a cloud upon the 
 title of real estate, and consequently in such a case an 
 injunction will not ordinarily be granted. ^^^ And even 
 where a tax deed is prima facie evidence of a valid title 
 in the grantee, the injunction will not issue unless the 
 issuance of such a deed is threatened. The mere levy- 
 ing of a tax for which the land might be sold and such 
 a deed given, is not a sufticient threat to warrant an in- 
 junction.^"*® 
 
 § 418. Special Assessments. — An injunction will be re- 
 fused when a local assessment cannot be enforced with- 
 out giving the property owner a full and adequate op- 
 portunity to be heard in court ;"^^ but the relief may 
 be granted if the city does not object to the matter be- 
 ing presented in such a proceeding.^^** 
 
 343 Clarke v. Ganz, 21 Minn. 387. 
 
 844 Bradish v, Lucken, 38 Minn. 186, 36 N. W. 454. 
 
 345 Scribner v. Allen, 12 Minn. 148 (Gil. 85). 
 
 34 6 Id. 
 
 347 Kelly V. City of Minneapolis, 57 Minn. 294, 47 Am. St. Eep. 
 COS, 59 N. W. 304, 26 L. E. A. 92; Albrecht v. City of St. Paul, 47 
 Minn. 531, 50 N. W. 608; Fajder v. Village of Aitkin, 87 Minn. 445, 
 92 N. W. 332, 934. 
 
 848 Albrecht T. City of St. Paul, 47 Minn. 531, 50 N. W. 608.
 
 709 ENJOINING TAXATION; MISSISSIPPI. I 419 
 
 § 419. Mississippi. — The Mississippi code provides 
 that "the chancery court shall have jurisdiction of suits 
 by one or more tax-payers in any county, city, town or 
 village, to restrain the collection of any taxes levied, 
 or attempted to be collected without authority of 
 law."^^® Before the issuance of the injunction the 
 plaintiff must enter into a bond conditioned for the 
 prompt payment of the taxes enjoined, and damages 
 and costs, in case the injunction be dissolved.^'^'^ Upon 
 dissolution, a decree must be entered against the plain- 
 tiff and his bondsmen for the amount of the taxes, ten 
 per cent penalty, and costs.^^^ These sections have 
 been construed as allowing the injunction whenever 
 the tax is without authority of law.^^^ The injunction 
 will not be granted, however, until the proceedings 
 have gone far enough to enable the court to tell the 
 amount for which a decree against the plaintiff must 
 be entered in case of dissolution, and therefore an in- 
 junction will not issue to restrain the mere assessment 
 of an ad valorem tax.^*^ 
 
 Apart from statutory authorization, an injunction 
 will not ordinarily issue to restrain the collection of a 
 tax on personal property, because in such a case there 
 is a complete and adequate remedy at law.^** And the 
 mere fact that there are a great many tax-payers simi- 
 larly situated, will not give the court jurisdiction.^'^* 
 But the insolvency of the tax-collector renders the 
 legal remedy inadequate, within the meaning of the 
 rule.^*« 
 
 349 Code, § 483. 
 
 • 360 Code, § 561. 
 
 851 Code, § 484. 
 
 352 Yazoo & M. V. E. Co. v. Adams, 73 Miss. 648, 19 South. 9L 
 
 853 Yazoo & M. V. E. Co. v. Adams. 73 Miss. 648, 19 South. 91, 
 
 854 Coulson V. Harris, 43 Miss. 728. 
 356 Id. 
 
 856 Eichardson v. Scott, 47 Miss. 236.
 
 5 420 EQUITABLE EEMEDIES. 710 
 
 Where a tax levy is in excess of the legal limit, only 
 the excess will be enjoined.^" Tender of the valid part 
 of the tax is a prerequisite to injunctive relief.^^^ 
 
 § 420. Missouri. — The supreme court of Missouri has 
 stated that it would be diflflcult to reconcile the authori- 
 ties, either in that state or elsewhere; but that of late 
 years the court has been disposed to regard with favor 
 proceedings which are preventive in their character, 
 rather than compel the injured party to seek redress 
 after the damage is accomplished.^^^ 
 
 The court should require the payment of taxes con- 
 fessedly due, before granting the in j unction. ^^° 
 
 Irregularities. — Equity will not relieve by injunction 
 against mere informality of tax procedure, where no 
 substantial right of the complaining party has been 
 infringed. Equity deals with the substance of trans- 
 actions, and treats their form as of secondary impor- 
 tance, unless the positive law (which it is bound to 
 follow) otherwise ordains."*^^ 
 
 Void Tax. — Where property has been levied on to en- 
 force the payment of a void tax, injunction is the proper 
 remedy, according to the later authorities.^^^ Thus, 
 
 357 Lewis V. Village of Bogus Chitto, 76 Miss. 356, 24 South. 87.5. 
 
 358 Lewis V. Village of Bogue Chitto, 76 Miss. 356, 24 South. 875; 
 Mobile & O. E. K. Co. v. Mosely, 52 Miss. 127. 
 
 359 Overall v. Euenzi (1877), 67 Mo. 203. 
 
 360 Overall v. Euenzi, 67 Mo. 203. See Burnham v. Eogers, 167 
 Mo. 17, 66 S. W. 970. 
 
 361 St. Louis & S. F. Ey. Co. v. Gracy, 126 Mo. 472, 29 S. W. 579. 
 
 362 St. Louis & S. F. Ey. Co. v. Apperson, 97 Mo. 301, 10 S. W. 478; 
 Noll V. Morgan, 82 Mo. App. 112. See, howeo^er, McPike v. Pew, 
 43 Mo. 525, holding that an officer seizing property under a void tax 
 levy would be a mere trespasser, and that the injured party would 
 have an ample remedy at law; to the same effect with the last case, 
 Barrow v. Davis, 46 Mo. 394, and Sayre v. Tompkins, 23 Mo. 443, dis- 
 tinguishing between void taxes on real and on personal property. 
 
 Multiplicity of suits is emphatically recognized as a ground of ji.r-
 
 711 ENJOINING TAXATION; MISSOURI. § 421 
 
 the property owner may have relief by injunction as 
 tx) city or county taxes which are levied in excess of the 
 constitutional limit.^°^ 
 
 Property not Subject to Taxation. — Injunction is an 
 appropriate remedy to prevent the collection of taxes 
 against property not the subject of taxation.^^* 
 
 Excessive Assessment. — The right of appeal to the 
 county board of equalization, provided by statute, is an 
 adequate remedy, and excludes any remedy in equity.^*'^ 
 
 Cloud on Title. — A tax sale of real property exempt 
 by law from taxation, may be enjoined, to prevent a 
 cloud on the title ;^°^ and in general, the sale of lands 
 for the payment of an illegal tax will be enjoined, for 
 the same reason.^^"^ 
 
 § 421. Special Assessments. — An injunction will issue 
 to restrain the collection of a void special assessment 
 which casts a cloud upon the title of real estate. It is 
 not necessary to constitute a cloud which will warrant 
 the interposition of a court of equity that the defect 
 should not be apparent on the face of the proceedings. 
 
 isdiction, where one tax-payer sues for all the tax-payers of a town- 
 ship or county, in Ransey v. Bader, 67 Mo. 476, 480; see 1 Pom. Eq. 
 Jur. (3d ed.), § 260, note (d). 
 
 363 Arnold v. Hawkins, 95 Mo. 569, 8 S. W. 718; Overall v. 
 Kuenzi, 67 Mo. 203. 
 
 364 Valle V. Zeigler, 84 Mo. 214 (bonds kept out of the state, and 
 shares of stock in manufacturing companies); Mechanics' Bank v. 
 City of Kansas, 73 Mo. 555 (exempt real property). 
 
 365 National Bank of Unionville v. Staats, 155 Mo. 55, 55 S. W. 626; 
 Meyer v. Rosenblatt, 78 Mo. 495; Deane v. Todd, 22 Mo. 90. 
 
 366 Mechanics' Bank v. City of Kansas, 73 Mo. 555. 
 
 367 McPike V. Pen, 51 Mo. 63, holding that failure to give notice 
 of municipal aid election rendered the tax based thereon illegal; 
 Leslie v. City of St. Louis, 47 Mo. 474 (street assessment) ; Fowler 
 V. City of St. Joseph, 37 Mo. 229 (street assessment); Lockwood v. 
 City of St. Louis, 24 Mo. 20.
 
 i 421 EQUITABLE REMEDIES. 712 
 
 If the defect is such as to require legal acumen to dis- 
 cover it, whether it appears on the deed or proceedings, 
 or is to be proven aliunde, equity will take jurisdic- 
 tion.^^® Thus, where an ordinance for street improve- 
 ments provides for an unauthorized maintenance of the 
 street, and the assessment levied is a lien on realty, an 
 injunction is a proper remedy.^®^ Likewise, it is proper 
 when a hearing is denied to the property owners;''^" or 
 where the assessment is to pay for property condemned 
 when the condemnation proceedings are invalid ;''* or 
 where the ordinance providing for the improvement is 
 fraudulent and oppressive, and imposes a burden with- 
 out any corresponding benefit.^'^^ 
 
 One property owner may maintain a suit, on behalf 
 of himself and others similarly situated, to restrain the 
 execution of an ordinance, illegally passed, for the 
 improvement of a street at the expense of the property 
 owners, in order to prevent a multiplicity of suits.^^^ 
 
 An injunction will not issue to restrain the collection 
 of an assessment to pay for land acquired for street 
 purposes by condemnation on the ground that the city 
 already had title, when the property owners were duly 
 notified of the assessment proceedings.^'* Nor will it 
 be granted on the ground that the city has made a con- 
 tract that such property should be exempt from such 
 assessments, for such a contract is invalid.^'* Again, 
 
 368 Verdin v. City of St. Louis, 131 Mo. 106, 33 S. W. 480, 36 8. W. 
 62. 
 
 369 Verdin v. City of St. Louis, 131 Mo. 106, 33 S. W. 480, 36 S. W. 
 52. 
 
 370 Dennison v. City of Kansas, 95 Mo. 430, 8 S. W. 429. 
 
 371 Leslie v. City of St. Louis, 47 Mo. 474. 
 
 872 Skinker v. Heman, 148 Mo. 349, 49 S. W. 1026. 
 
 Ris Dennison v. City of Kansas, 95 Mo. 430, 8 S. W. 429. 
 
 374 Michael v. City of St. Louis, 112 Mo. 610, 20 8. W. 666; Bud- 
 decke v. Ziegenhein, 122 Mo. 239, 26 S. W. 696. 
 
 375 Verna v. City of St. Louis, 164 Mo. 146, 64 8. W. 180.
 
 713 ENJOINING TAXATION; MISSOURI. S 421 
 
 it is not autliorized merely because otlier property is 
 exempted from the assessment, especially when it doe;? 
 not appear that the complainant is assessed more than 
 his share.^^® 
 
 An injunction will not issue when there is an ade- 
 quate remedy at law.^'^^ But the mere rij^ht to inter- 
 pose an equitable defense to any action of ejectment 
 which might be brought on the strength of a sheriff's 
 deed is not an adequate remedy, for such action might 
 not be brought promptly; and in such event, the title 
 to plaintiff's land would be so clouded as to prevent 
 a sale.^'^* 
 
 Where the work is done without authority, as under 
 a void ordinance or contract, the abutting owner is not 
 estopped by his failure to object before the work is com- 
 pleted.3^» 
 
 Where there is some irregularity in doing the work, 
 or invalidity of some part of the contract for street im- 
 provements, an abutting owner will be required, as a 
 condition precedent to an order enjoining the collection 
 of a general tax, to make payment or tender of the sum 
 justly due.^®** Thus, where the illegality results from 
 a construction of the work under a valid ordinance and 
 contract and the mistake consists in pointing out the 
 lines of the street by the city authorities, the abutting 
 owner will be compelled to do equity.^*** 
 
 376 Page V. City of St. Louis, 20 Mo. 137. 
 
 877 Michael v. City of St. Louis, 112 Mo. eiO, 20 S. W. 666. 
 
 378 Verdin v. City of St. Louis, 131 Mo. 106, 33 S. W. 480, 36 S. 
 W. 52; Skinker v. Heman, 148 Mo. 349, 49 S. W. 1026. 
 
 379 Verdin v. City of St. Louis, 131 Mo. 106, 33 S. W. 480, 36 S. 
 W. 52. 
 
 380 Verdin v. City of St. Louis, 131 Mo. 106, 33 S. W. 480, 36 S. 
 W. 52. 
 
 881 Johnson v. Duer, 115 Mo. 366, 21 S. W. 800.
 
 §§ 422,423 EQUITABLE EEMEDIES. 714 
 
 § 422. Montana.— The Tolitical Code of Montana pro- 
 hibits injunctions to restrain the collection of a tax or 
 the sale of property for non-payment of a tax, except 
 where the tax is illegal, or not authorized by law, or 
 where the property is exempt from taxation.^^^ A 
 board of equalization is provided to correct all irregu- 
 larities. Therefore an injunction will not be granted 
 when relief can be obtained, or could have been, before 
 tlie board.-^^^ But where the tax is absolutely void, as 
 where a school tax is levied upon a party whose place 
 of business is not within the district, the injunction 
 Vvill be granted.^®^ Relief will likewise be granted to 
 prevent the sale of personal property against which the 
 tax is not a lien.^^^ 
 
 Tender. — If the tax is valid in part and void in part, 
 no relief can be obtained unless tender is made of the 
 valid part.^^^ 
 
 § 423. Nebraska.— In Nebraska, it is provided by 
 statute that ''no injunction shall be granted by any 
 court or judge in this state to restrain the collection 
 of any tax or any part thereof, hereafter levied, nor to 
 restrain the sale of any property for the non-payment 
 of any such tax except such tax, or the part thereof en- 
 joined, be levied or assessed for an illegal or unauthor- 
 ized purpose."^^^ Hence, a tax-payer may obtain an 
 
 382 Mont. Pol. Code., §§ 4023-4026, incl. 
 
 383 Cobban v. Hinds, 23 Mont. 338, 59 Pac, 1; Deloughrey v. Hinds, 
 23 Mont. 260, 58 Pac. 709; First Nat. Bank v. Bailey, 15 Mont. 301, 
 39 Pac. 83; Northern Pac. E. R. Co. v, Patterson, 10 Mont. 93, 24 
 Pac. 704; Ward v. Board of Commissioners, 12 Mont. 23, 29 Pac. 658, 
 
 384 Green Mountain Stock Eanch Co. v. Savage, 15 Mont. 189, 38 
 Pac. 940. 
 
 385 Walsh V. Croft, 27 Mont. 407, 71 Pac, 409, 
 
 386 Ward V. Board of Commissioners, 12 Mont. 23, 29 Pac. 658. 
 
 387 Comp. Stats., art, 1, c. 77, § 144. See construction in Phila- 
 delphia Mtg. & Tr. Co. V. City of Omaha, 63 Neb, 280, 93 Am, St, Eep.
 
 715 ENJOINING TAXATION; NEBRASKA. § 423 
 
 iniunction to restrain the Icyying of a tax to pay the 
 principal or interest on void bonds.^^® 
 
 The courts have construed this and similar statutes, 
 however, in such a manner as to make the rule really 
 broader. It is held that the section has no reference to 
 taxes wholly void, that a void tax is no tax, and that, 
 therefore, it would be beyond the power of the legisla- 
 ture to take av^ay the equitable remedy in such a case; 
 for such an act would be in conflict with the constitu- 
 tional provision giving the courts general equity ju- 
 risdiction.^^^ Another theory upon which the broader 
 rule has been supported is that a tax levied without 
 authority of law is levied for an unauthorized pur- 
 pose.^ ""^ At any rate, it may be safely laid down as a 
 general rule that an injunction will be granted when 
 a void tax or assessment is sought to be collected.^^^ 
 Thus, where a tax is levied on property without the 
 jurisdiction of the taxing district,^^^ or where the prop- 
 erty is situated in territory which the taxing munici- 
 pality has ineffectually tried to annex,^^^ ^j^g injunc- 
 tion will issue. Likewise, where a statute authorizes 
 a tax of nine mills and the taxing body levies a tax 
 of twelve mills,^^^ and where a board of equalization 
 
 442, 56 L. R. A. 150, 88 N. W. 523, 65 Neb. 93, 90 N. W. 1005; Union 
 Pac. Ry. Co. v. Cheyenne County, 64 Neb. 777, 90 N. W. 917. 
 
 388 Morton v. Carlin, 51 Neb. 202, 70 N. W. 966. 
 
 389 Touzalin v. City of Omaha, 2'o Neb. 817, 41 N. W. 796; Chicago, 
 B. & Q. R, Co. V. Cass County, 51 Neb. 369, 70 N. W. 955; Rothwell 
 V. Knox County, 62 Neb. 50, 86 N. W. 903; Grand Island & M. C. R. 
 Co. V. Dawes County, 62 Neb. 44, 86 N. W. 834. 
 
 390 Earl V. Duras, 13 Neb. 234, 13 N. W. 206. 
 
 391 Morris v. Merrell, 44 Ne*). 423, €2 N. W. 865. 
 
 392 Sioux City Bridge Co. v Dikota County, 61 Neb. 75, 84 N. W. 
 607. 
 
 393 Chicago, B. & W. R. C" r City of Nebraska City, 53 Neb. 453, 
 73 N. W. 952. 
 
 304 Grand Island & W. G T 3o. ▼. Dawes County, 62 Neb. 44, 86 
 N. W. 834.
 
 g 423 EQUITABLE REMEDIES. 710 
 
 fraudulently and without notice raises an assessment 
 to an excessive amount,^'^ equitable relief is proper, 
 especially where it is necessary to prevent a cloud on 
 title. It is also proper when no tax whatever is due.^®' 
 An injunction will issue to restrain the collection of 
 a valid tax in an unlawful manner. Thus, an injunc- 
 tion will be granted to restrain the sale of realty for 
 non-payment of a tax when there is sufficient personalty 
 belonging to the owner and subject to the levy, to sat- 
 isfy it.3^^ 
 
 Personal Property Tax. — The remedy is not confined 
 to cases of void taxation of real property, but will be 
 granted equally to restrain the collection of a void tax 
 on personal property.^^^ The reason for this rule is 
 that taxes on any specific personal property are a lien 
 on all of the owner's personalty. Hence, the court ar- 
 gues, there is just as much reason for an injunction in 
 this case as in the case of realty. "It would be a vain 
 thing for the law to require a tax to be paid, the pay- 
 ment of which would immediately give rise to an action 
 for its recovery."^'* 
 
 Irregularities. — An injunction will not issue to re- 
 strain the collection of a tax because of mere irregu- 
 larities in the proceedings, unless enforcement would 
 be inequitable and unconscionable.^***^ In cases of ir- 
 
 893 South Platte Land Co. v. Commissioners of Buffalo Co., 7 Neb. 
 233. 
 
 306 Earl V. Duras, 13 Neb. 234, 13 S. W. 206. 
 S97 Johnson v. Hahn, 4 Neb. 139. 
 
 398 Rothwell V. Knox County, 62 Neb, 50, 86 N, W. 903; Chicago, 
 B, & Q. E. Co. V. Cass County, 51 Neb. 369, 70 N, W. 953. 
 
 399 Eothwell V. Knox County, 62 Neb, 50, 86 N. W, 903, 
 
 400 Spargur v, Eomine, 38 Neb. 736, 57 N. W, 523; Chicago, B, A 
 W, R. Co. V. City of Nebraska City, S3 Neb. 453, 73 N. W. 952; Wilson 
 y. City of Auburn, 27 Neb, 435, 43 N, W. 257; Bellevue Imp. Co. t. 
 Village of Bellevue, 39 Neb. 876, 58 N. W. 446.
 
 717 ENJOINING TAXATION; NEBRASKA. I 423 
 
 regularity an adequate remedy is provided at law. And 
 
 especially where the irregularity is the result of the 
 
 plaintiff's own act, as where an officer of a corporation 
 
 made a return of its property in his own name and was 
 
 assessed for it in consequence, there is no ground for 
 
 equitable interference.^®^ An error of a tax-collector 
 
 in marking an assessment paid does not entitle one 
 
 who purchases in reliance upon the record to equitable 
 relief.''®^ 
 
 Laches. — A suit to restrain the collection of a tax 
 need not be brought within any fixed time. Therefore 
 the question as to whether the right to relief is barred 
 by laches depends upon the facts in each particular 
 case.^''^ Mere delay does not amount to laches, espe- 
 cially where the record fails to show that the plaintiff 
 had notice of the levy.^°* 
 
 Proof. — In actions to restrain the collection of taxes, 
 the burden is upon the plaintiff to allege and prove the 
 invalidity.^®'* 
 
 Tender. — Where any part of a tax or assessment is 
 legal, no injunction will issue to restrain the collection 
 of the void part unless the legal part has been paid or 
 tendered.^"* Where, however, a tax is wholly void, no 
 tender is necessary.^®' 
 
 401 McGillin v. Chase County, 39 Neb. 422, 58 N. W. 138. 
 
 402 Philadelphia Mtg. & Tr. Co. v. City of Omaha, 63 Neb. 280, 
 93 Am. St. Rep. 442, 88 N. W. 523, 57 L. E. A. 150. 
 
 403 Richards v. Hatfield, 40 Neb. 879, 59 N. W. 777. 
 
 404 Casey v. Burt County, 59 Neb. 624, 81 N. W. 851. 
 
 405 Webster v. City of Lincoln, 50 Neb. 1, 69 N. W. 394; Parrotte 
 ▼. City of Omaha, 61 Neb. 96, 84 N. W. €02. 
 
 406 Burlington & M. E. E. v. Commissioners of York County, 7 
 Neb. 487. 
 
 407 Sioux City Bridge Co. v. Dakota County, 61 Neb. 75, 84 N. W. 
 607.
 
 S 424 EQUITABLE EEMEDIES. 718 
 
 § 424. Special Assessments. — Although the statute pro- 
 hibits injunctions against taxation, general or local, un- 
 less levied for an illegal or unauthorized purpose, an 
 injunction will issue to restrain the collection of an 
 assessment which is levied without authority.^"^^ The 
 statute authorizing local improvements must be strictly 
 complied with, and if any of the substantial require- 
 ments, such as the petition of the owners of a majority 
 of the frontage,'"^^ or the publication of the ordi- 
 nance"*^" are not fulfilled, the assessment is beyond the 
 authority of the legislative body, and an injunction will 
 issue. But where jurisdiction is acquired, an injunc- 
 tion will not issue because of mere irregularities in the 
 proceedings.^^ ^ 
 
 An injunction will not be refused because the abut- 
 ting owner has allowed the work to be completed unless 
 it appears, (1) that he knew the improvement was be- 
 ing made, (2) that he knew that an assessment was 
 contemplated, (3) that he knew of the infirmity or de- 
 fect, and (4) that some special benefit has accrued to 
 his property.**^^ Where these concur, the owner must 
 pay what is justly due before he can obtain relief.^ ^^ 
 lielief will not be granted to one who, by covenants in 
 his deed, has assumed the payment of the assessment.^ ^^ 
 
 408 Morris V. Merrel, 44 Neb, 423, 62 N. W. 865. 
 
 409 Harmon v. City of Omaha, 53 Neb. 164, 73 N. W. 671; Morse 
 V. City of Omaha (Neb.), 93 N. W. 734. 
 
 410 Ives V. Irey, 51 Neb. 136, 70 N. W. 961. 
 
 411 Darst V. Griffin, 31 Neb. 668, 48 N. W. 819; Bemis v. Mc- 
 Cloud (Neb.), 97 N. W. 828 (no injunction unless some jurisdictional 
 fact is wanting on face of record). 
 
 412 Harmon v. City of Omaha, 53 Neb. 164, 73 N. W. 671. For 
 a case where it was held that the property owner was barred by his 
 acquiescence, see Eediek v. City of Omaha, 35 Neb. 125, 52 N. W. 
 847. 
 
 413 Darst V. Griffin, 31 Neb. 668, 48 N. W. 819. 
 
 414 Eddy V. City of Omaha (Neb.), 101 N. W. 25.
 
 719 ENJOINING TAXATION— NEVADA— NEW JERSEY. § 427 
 
 § 425. Nevada.— In Nevada it is held "tliat no court 
 of equity will ever allow its injunction to issue to re- 
 strain the collection of a tax, except where it is actu- 
 ally necessary to protect the rights of citizens who have 
 no plain, speedy and adequate remedy at law. It must 
 .... appear that the enforcement of the tax would 
 lead to a multiplicity of suits, or produce irreparable 
 injury; or if the property is real estate, throw a cloud 
 upon the title of the complainant, or there must be 
 some allegation of fraud, before the aid of a court of 
 equity can be invoked. There must in every case be 
 some special circumstances attending a threatened in- 
 jury of this kind, which distinguishes it from a com- 
 mon trespass, and brings the case under some recog- 
 nized head of equity jurisdiction before the extraordi- 
 nary and preventive remedy of injunction can be in- 
 voked."'*^ ^ Therefore, the collection of a tax on per- 
 sonal property will not be enjoined even though the 
 tax has been once paid.*^^ 
 
 § 426. New Hampshire. — In New Hampshire, an ap- 
 plication for abatement is the proper remedy, not only 
 when the assessment is made upon an overvaluation, 
 but also when the whole assessment is illegal. There 
 being this adequate remedy at law, an injunction will 
 not ordinarily be granted to restrain the collection of 
 a tax.*" 
 
 § 427. New Jersey.— The prevention of a multiplicity 
 of suits is a ground for the injunction, in a case where 
 
 415 WeUs, Fargo & Co. v. Dayton, 11 Nev. 161. 
 
 416 Conley v. Chedie, 6 Nev. 223. 
 
 417 Rockingham Ten Cent Savings Bank T. Portsmouth, 52 N. H. 
 17; Brown v. Concord, 56 N. H. 375.
 
 ii 428,429 EQUITABLE REMEDIES. 720 
 
 the invalidity of a similar tax as against the plaintiff 
 has already been established at law.'*^* 
 
 Special Assessments. — ^The abutting ownei' is entitled 
 to an injunction to restrain the city council from vol- 
 untarily paying a contractor for imperfect street work, 
 when such owner's property will be assessed for part 
 of the cost of the work.^^* 
 
 § 428. New Mexico. — In New Mexico, the collection of 
 a tax unauthorized by law will be restrained, especially 
 when it casts a cloud on title to real estate. Tax deeds 
 are prima facie evidence of regularity of proceedings, 
 and therefore cast a cloud on title.^^o rpj^^ courts will 
 "arrest any attempt to enforce the collection of a tax 
 when it is apparent that the power to do so was not 
 originally and clearly vested in the taxing power."*^^ 
 
 § 429. New York. — In New York, public policy for- 
 bids the granting of injunctions in tax cases, unless 
 facts are shown clearly bringing the case under some 
 acknowledged head of equity jurisdiction, as the neces- 
 sity for the intervention of the court to prevent a mul- 
 tiplicity of suits or irreparable damage, where there is 
 no adequate remedy at law, or to remove a cloud on 
 title.^^^ It is sometimes stated that the injunction will 
 
 418 Paterson etc. E. E. v. Jersey City, 9 N. J. Eq. 434; see 1 Pom. 
 Eq. Jur., § 253, note. 
 
 410 Lodor V. McGovern, 48 N. J. Eq. 275, 27 Am. St. Eep. 446, 22 
 Atl. 199. That a slight and harmless variance in the performance from 
 the precise terms of the contract is not a ground for restraining such 
 payment, see McCartan v. Inhabitants of City of Trenton, 57 N. J. 
 Eq. 571, 41 Atl. 830. 
 
 420 Town of Albuquerque v. Zeiger, 5 N. M. 674, 27 Pac. 315. 
 
 421 Poe V. Howell (N. M.), 67 Pac. 62. 
 
 422 Mercantile Nat. Bank v. City of New York, 27 Misc. Eep. 32, 
 57 N. Y, Supp. 254; Susquehanna Bank v. Supervisors of Broome Co., 
 25 N. Y. 312; Western E. E. Co. ▼. Nolan, 48 N. Y. 514; Mutual Ben.
 
 121 ENJOINING TAXATION; NEW YORK. § 429 
 
 bp granted only under circumstances of great necessity 
 to prevent irreparable damage.^-^ The courts have ad- 
 hered sti'ictly to this rule, and accordingly there are 
 few cases where the injunction will be granted. It will 
 not be granted on the ground of mere unconstitution- 
 ality or illegality, unless the case is brought under 
 some recognized head of equity.^-^ Ordinarily, when 
 a statute is unconstitutional, the sheriff is a mere tres- 
 passer when he attempts to levy upon the tax-payer's 
 property, and hence the remedy at law is amply suffi- 
 cient. And the fact that the remedy at law has been 
 lost by laches gives the court no jurisdiction."*-^ Gen- 
 erally, when an assessment is excessive or illegal, there 
 is an adequate remedy at law, and hence injunctive 
 relief will be refused.^^® Thus, a national bank cannot 
 enjoin the collection of a tax on the ground that its 
 property is assessed at a higher rate than other prop- 
 erty within the state, in violation of the federal stat- 
 ute, for an ample remedy is provided by the state stat- 
 ute.^^^ And a remainder-man, for the same reason^, 
 cannot enjoin a sale for taxes left unpaid by the life 
 tenant.^2® A broader rule has been laid down in one 
 
 Life Ins. Co. v. Supervisors, 2 Abb. Pr., N. S., 233; Mayor etc. v. 
 Meserole, 26 Wend. 132; Ileywood v. City of Buffalo, 14 N. Y, 534. 
 
 423 Rome W. & O. R. R. Co. v. Smith, 39 Hun, 332; Brass v. Rath- 
 bone, 8 App. Div. 78, 40 N. Y. Supp. 466. 
 
 424 United Lines Tel. Co. v. Grant, 137 N, Y. 7, 32 N. E. 1005; 
 Postal Tel. Cable Co. v. Grant, 11 N. Y. Supp. 323, 33 N. Y. St. Rep. 
 997. 
 
 425 United Lines Tel. Co. v. Grant, €3 Hun, 634, 18 N, Y. Supp. 
 534; Mercantile Nat. Bank v. City of New York, 27 Misc. Rep. 32, 57 
 N. Y. Supp. 254. 
 
 426 Mercantile Nat. Bank v. Mayor etc. of New York, 172 N. Y. 
 35, 64 N. E. 756. 
 
 427 Mercantile Nat. Bank v. City of New York, 27 Misc. Rep. 32, 
 57 N. Y. Supp. 254. 
 
 428 Sage V. City of r^ -ersville, 43 App. Div. 245, 60 N. Y. Supp. 
 T91. 
 
 Equitable L, dies, Vol. 1—46
 
 S 430 EQUITABLE REMEDIES. 722 
 
 recent lower court case, but it is at least doubtful if it 
 will be followed. The plaintiff was assessed upon the 
 same personal property in two boroughs, io one of 
 which the property had never been. The court held 
 that equity had jurisdiction to correct a mistake by 
 which double liability is incurred where such mistake 
 depends upon proof of facts outside the record, and 
 where, in consequence of such mistake, an obligation 
 that has already been paid and discharged still appears 
 of record as a valid claim. The case is brought within 
 the general rule by a holding that it is within the ju- 
 risdiction of equity to restrain the enforcement of un- 
 conscionable demands.^-^ It would seem that this rule 
 is too broad, and that if adhered to it would open the 
 door to injunctive relief in almost every case. 
 
 § 430. Cloud on Title. — It is one of the recognized prin- 
 ciples of equity jurisdiction that relief will be granted 
 to prevent a cloud on title to real estate. Therefore, 
 whenever an illegal tax casts such a cloud, the court 
 will interfere by injunction.'*^" Not every tax v\hich is 
 declared a lien on real estate casts such a cloud, how- 
 ever. In order to warrant relief, it must appear that 
 the proceedings are regular on their face and invalid 
 only because of defects dehors the record, and also that 
 the defect will not necessarily appear in proceedings 
 to enforce the lien.^^^ An assessment levied without 
 authority is held not to be even an apparent lien.^^^ 
 
 429 Jackson v. City of New York, 62 App. Div. 46, 70 N. Y. Supp. 
 877. 
 
 4:50 Mutual Ben. Life Ins. Co. v. Supervisors, 2 Abb. Pr., N. S., 
 233. 
 
 431 Alvord V. City or Syracuse, 163 N. Y. 158, 57 N. E. 310; Trow- 
 bridge V. Horan, 78 N. Y. 439; Van Eensselaer v. Kidd, 4 Barb. 17; 
 Van Doren v. Mayor, 9 Paige, 388. 
 
 432 Heywood v. City of Buffalo, 14 N. Y. 534.
 
 723 ENJOINING TAXATION; NEW YORK. § 431 
 
 But where a cloud is cast, the courts will interfere, as 
 in case of a threatened sale for non-payment of an il- 
 legal tax regular on its face.^^^ 
 
 § 431. Special Assessments.— As a general rule, an in- 
 junction will issue when an illegal special assessment, 
 valid on its face, casts a cloud on the title of real estate. 
 Thus, it is proper where the assessment is invalid be- 
 cause the assessors adopt the wrong rule in apportion- 
 ment ;^^^ or when land benefited by an improvement is 
 excluded from the assessment district, for there is an 
 illegality not apparent on the face which creates a 
 cloud on title ;^^^ but it will be presumed that the as- 
 sessment is apportioned according to benefits until the 
 contrary is shown.^^^ The mere fact that the assess- 
 ment is in excess of benefits, where there is no claim 
 that any land benefited is not assessed nor that there 
 was any fraud in making the assessment, will not war- 
 rant an injunction.'*^'^ 
 
 Where, however, the proceedings are void on their 
 face, an injunction will be refused.^^^ Thus, where a 
 resolution fails to specify which of two plans on file 
 is to be followed, the illegality is apparent and no in- 
 junction will issue.^^® 
 
 433 Litchfield v. City of Brooklyn, 13 Misc. Eep. 693, 34 N. Y. Supp. 
 1090. 
 
 434 Clark V. Village of Dunkirk, 12 Hun, 181; affirmed, 75 N. Y. 
 612. 
 
 435 Copcutt V. City of Yonkers, 83 Hun, 178, 31 N. Y. Supp, 659; 
 Providence Retreat v. City of Buffalo, 29 App. Div. 160, 51 N. Y. 
 Snpp. 654; affirmed, 31 App. Div. 635, 53 N. Y. Supp. 1113; Hasaan 
 V. City of Rochester, 67 N. Y. 528. 
 
 436 Denise v. Village of Fairport, 11 Misc. Eep. 199, 32 N. Y. Supp. 
 97. 
 
 437 Hoffield V. City of Buffalo, 130 N. Y. 387, 29 N. E. 747. 
 
 438 Mayor etc. of Brooklyn v. Meserole, 26 Wend. 132; Van Doren 
 V. Mayor, 9 Paige Ch. 388. 
 
 439 Copcutt V. City of Yonkers, 83 Hun, 178, 31 N. Y. Supp. 659.
 
 i 433 EQUITABLE REMEDIES. 724 
 
 Where statute provides an adequate remedy at law 
 for an illegal assessment, an injunction will be re>- 
 fused.^^° By section 897 of the Consolidation Act 
 (New York City) it is provided: "No suit or action 
 in the nature of a bill in equity or otherwise shall be 
 commenced for the vacation of any assessment in said 
 city, or to remove a cloud upon title, but owners of 
 property shall be confined to their remedies in such 
 cases to the proceedings under this title. "^'^^ Where 
 this applies, it has been held that no injunction can 
 issue to prevent the sale of property for a void assess- 
 ment, for to allow it would in substance be to vacate 
 the assessment. '^^2 
 
 When an assessment is void, it is not necessary to 
 make any tender as a condition to injunctive relief.'*^^ 
 
 § 432. North Carolina. — It is provided by statute in 
 North Carolina that injunctions shall not be issued 
 to restrain the collection of any tax or the sale of any 
 property for the non-payment of any tax, except such 
 tax as has been levied or assessed for an illegal or un- 
 authorized purpose, or except the tax be illegal or in- 
 valid, or the assessment be illegal and invalid.^^* Thus, 
 an injunction will not be granted merely because the 
 defendant was not the lawful tax-collector for the 
 year.*^^ On the other hand, when the tax is illegally 
 levied, the injunction will issue.^*^ In such a case, 
 
 440 Schulz V. City of Albany, 42 App. Div. 437, 59 N. Y. Supp. 235; 
 affirming 27 Misc. Eep. 51, 57 N. Y. Supp. 963. 
 
 441 Laws 1882, c. 410. 
 
 442 Scudder v. Mayor etc. of New York, 146 N. Y. 245, 40 N, E. 
 734; affirming, 79 Hun, 613, 29 N. Y. Supp. 422; Sixth Ave. E. Co. 
 V. City of New York, 63 Hun, 271, 17 N. Y. Supp. 903. 
 
 443 Hassan v. City of Eochester, 67 N. Y. 528. 
 
 444 Acts of 1895, c. 119, § 76. 
 
 445 Mf-Donald v. Teague, 119 N. C. 604, 26 S. E. 158. 
 
 448 (iraves r. Moore Co. Commissioners, 135 N. C. 49, 47 S. E. 134|
 
 725 ENJOINING TAXATION; NORTH DAKOTA. §§ 433,434 
 
 any tax-payer may bring the suit in his own behalf only, 
 or on behalf of all others similarly situated.^^'^ 
 
 The injunction will not be granted when there is an 
 adequate remedy at law. The statute provides that if 
 any person claiming that any tax is illegal or excessive 
 pays the same, and, within thirty days after payment, 
 makes a written demand for a repayment thereof, and 
 the same is not refunded within ninety days thereafter, 
 he may sue to recover it.^^^ This provides an adequate 
 remedy at law for an illegal or excessive personal tax, 
 at least, and hence in such a case an injunction will 
 be refused.^^^ 
 
 Tender. — An injunction will issue to restrain the col- 
 lection of an illegal excess of tax, but as a preliminary 
 condition of relief the plaintiff must tender the amount 
 legally due.^^*^ 
 
 § 433. Special Assessments. — An injunction will not 
 issue to restrain the collection of a special assessment 
 when the act provides an adequate remedy at law by 
 suit to recover back after payment.*^^ 
 
 § 434. North Dakota — In North Dakota, it is held 
 that courts of equity should interfere to restrain the 
 collection of a tax, only where the property sought to 
 be taxed is exempt, or where the tax itself is not war- 
 ranted by law, or the persons assuming to assess and 
 
 Purnell v. Page, 133 N. C. 125, 45 S. E. 534; Moore v. Sugg, 112 N. 
 C. 233, 17 S. E. 72. 
 
 447 Moore v. Sugg, 112 N. C. 233, 17 S. E. 72. 
 
 448 Laws 1887, c. 137, § 84. 
 
 449 Hall V. City of Fayetteville, 115 N. C. 281, 20 S. E. 373. The 
 same has been held as to a tax fraudulently assessed on realty: Wil- 
 son V. Green, 135 N. C. 343, 47 S. E. 469. 
 
 450 London v. City of Wilmington, 78 N. C. 109. 
 
 451 Hilliard v. City of Asheville, 118 N. C. 845, 24 S. E. 738.
 
 I 435 EQUITABLE REMEDIES, 726 
 
 levy the same are without authority to do so, or where 
 the proper taxing officials have acted fraudulently ; and 
 in addition, plaintiff must bring himself within some 
 recognized head of equity jurisdiction. As a condition 
 to relief, the applicant must pay or tender the amount 
 of taxes properly chargeable against his property.^^^ 
 An injunction will not issue against the collection of 
 taxes on personal property unless plaintiff can by proof 
 of special circumstances show that the remedy at law 
 is inadequate.^^^ A tax-payer cannot enjoin a tax levy 
 on the ground that it is to be used in part in the pay- 
 ment of an illegal claim.^^^ 
 
 § 435. Ohio — The Revised Statutes of Ohio are very 
 explicit as to injunctions in tax cases. "Courts of com- 
 mon pleas and superior courts shall have jurisdiction 
 to enjoin the illegal levy of taxes and assessments, or 
 the collection of either .... without regard to the 
 amount thereof, but no recovery shall be had unless the 
 action be brought within one year after the taxes or as- 
 sessments are collected."'*^^ "Actions to enjoin the il- 
 legal levy of taxes and assessments must be brought 
 against the corporation or person for whose use or bene- 
 fit the levy is made; and if the levy would go upon the 
 county duplicate the county auditor must be joined in 
 the action."^^® "Actions to enjoin the collection of 
 taxes and assessments must be brought against the of- 
 
 4 52 Farrington v. Kew England Investment Co., 1 N. D. 102, 45 
 N. W. 191; Douglas v. City of Fargo (N. D.), 101 N. W. 919. 
 
 453 Scliaifner v. Young, 10 N. D. 245, 86 N. W. 733; Minneapolis 
 St. P. & S. S. M. E. Co. V. Dickey County, 11 N. D. 107, 90 N. W. 
 260. 
 
 454 Torgrinson v. Norwich School Dist. No. 31 (N. D.), 103 N. W. 
 414. 
 
 455 Ohio Rev. Stats., § 0848. 
 
 456 Ohio Rev. Stats., § 5849.
 
 727 ENJOINING TAXATION; OHIO. S 435 
 
 ficer whose duty it is to collect the same."^^^ "If the 
 plaintiff in an action to enjoin the collection of taxes 
 or assessments admit a part thereof to have been legally 
 levied, he must first pay or tender the sum admitted to 
 be due ; if an order of injunction be allowed, an under- 
 taking must be given as in other cases; and the injunc- 
 tion shall be a justification of the olficer charged with 
 the collection of such taxes or assessments for not col- 
 lecting the same."^^^ 
 
 "When the power to tax in any particular case is 
 challenged, the citizen has the right to be heard in 
 court as to the legality of the tax; but when the power 
 to tax is conceded, and the complaint is only as to the 
 valuation, a valuation made in good faith, and accord- 
 ing to the best judgment of the taxing offlcer, will not 
 be disturbed by the courts in the absence of gross mis- 
 take."^^^ Thus, an injunction will be granted at suit 
 of a tax-payer when the tax is levied without authority 
 of law,^^*^ as where levied for an illegal object. It will 
 also be granted to restrain the sale of realty for an il- 
 legal tax, when such sale would cast a cloud on title.*^^ 
 It has been held that an injunction will not issue to re- 
 strain the collection of a tax when the action of the col- 
 lecting officer amounts to a mere trespass for which 
 there is an adequate remedy at law; and the mere fact 
 that a number of persons are in the same condition as 
 the plaintiff is not sufficient to warrant the relief."***^ 
 
 An injunction against the collection of a tax will be 
 granted only at the suit of a tax-payer. The same de- 
 
 457 Ohio Eev, Stats., § 5850 
 
 458 Ohio Eev. Stats., § 5851. 
 
 409 Hagerty v. Huddleston, 60 Ohio St. 149, 53 N. E. 960. 
 
 460 Moss V. Board of Education, 58 Ohio St. 354, SO N. E. 921; Jonea 
 V. Davis, 35 Ohio St. 474. 
 
 461 Burnet v. Cincinnati, 3 Ohio, 73, 17 Am. Dec. 582, 
 4C2 McCoy V. Chillicothe, 3 Ohio, 370, 17 Am. Dee. 607.
 
 i 436 EQUITABLE EEMEDIES. 728 
 
 gree of interest is requisite as in all other cases where 
 the extraordinary aid of equity is invoked. Thus, the 
 collection of a school tax cannot be enjoined at the suit 
 of a board of education, because the board, as such, is 
 not a tax-payer.^ ^^ 
 
 The plaintiff seeking the aid of a court of equity 
 must come with clean hands; therefore an injunction 
 will be refused to one who, for the purpose of evading 
 taxation upon certain securities at the place of his 
 residence, has made a pretended transfer thereof by an 
 instrument in writing, but retains the full and actual 
 control of the property.^^* 
 
 § 436. Special Assessments. — An injunction will issue 
 to restrain the collection of a special assessment levied 
 without authority of law.^*^^ Thus, it will issue when 
 the statute authorizing the w^ork is unconstitutional;^'^^ 
 or when some jurisdictional requirement is omitted.^ °^ 
 
 It is no ground for an injunction that the improve- 
 ment has not been constructed according to plans and 
 specifications;^''^ nor that the proceedings do not show 
 affirmatively that benefits were considered, when the 
 land, as a matter of fact, has been benefited.^°^ 
 
 A petition for an injunction is premature when filed 
 before steps have been taken to make the assess- 
 
 4 63 Board of Education v. Guy, 64 Ohio St, 434, 60 N. E. 573. 
 
 464 Sisler v. Foster (Ohio), 74 N. £.639. 
 4G5 Jonas V. Cincinnati, 18 Ohio, 318. 
 
 4 00 Lewis V. Syninies, 61 Ohio St. 471, 76 Am. St. Eep. 428, 56 N. 
 E. 194. 
 
 467 Joyce V. Baron, 67 Ohio St. 2G4, 65 N. E. 1001. 
 
 465 Putnam Co. Commissioners v. Krauss, 53 Ohio St. 628, 42 N. E. 
 S31. 
 
 409 Schroder v. Overman, 61 Ohio St. 1, 55 N. E. 158, 47 L. E, A. 
 156.
 
 729 ENJOINING TAXATION; OKLAHOMA. fi 437 
 
 raent i*^*' on the other hajid, it is too late when not filed 
 until after the assessment has been paid voluntarily.*'^ 
 In the earlier cases it was held that an injunction 
 will be refused, although the proceedings are void, 
 when the landowner knowingly stands by and allows 
 the improvement to be made without objection ;^'2 b^t 
 the rule does not apply when he has no actual notice of 
 the improvement and is not guilty of any want of dili- 
 gence in asserting his rights.'*'^^ It has been held in a 
 recent case that it is not necessary to take effective 
 measures to prevent the expenditure; that the land- 
 owner is not obliged to take any steps whatever until 
 an attempt is made to assess his property.*'^* 
 
 § 437. Oklahoma — In Oklahoma it is provided by stat- 
 ute that "an injunction may be granted to enjoin the 
 illegal levy of any tax, charge or assessment, or the 
 collection of any illegal tax, charge or assessment, or 
 any proceeding to enforce the same, and any number 
 of persons, whose property is affected by a tax or assess- 
 ment so levied may unite in the petition filed to obtain 
 such injunction."*^^ In construing this provision, the 
 supreme court of the territory has held that it enlarges 
 the remedy by injunction in tax cases, and clearly gives 
 the complaining party a right to injunction in every 
 case when the tax or assessment levied against him is 
 
 470 Lutman v. Lake Shore & M, S. Ey. Co., 56 Ohio St, 433, 47 N, 
 E. 248. 
 
 471 State V. Bader, 56 Ohio St. 718, 47 N. E. 564. 
 
 472 Kellogg V. Ely, 15 Ohio St. 64; Commissioners of Putnam Co. 
 V. Krauss, 53 Ohio St. 628, 42 N. E. 831. 
 
 473 Teegarden v. Davis, 36 Ohio St. 601. 
 
 474 Lewis V. Symmes, 61 Ohio St. 471, 76 Am. St. Eep. 428, 56 N. 
 E. 194. 
 
 475 Okla, Stats. 1893, § 4143.
 
 { 437 EQUITABLE REMEDIES. 730 
 
 illegal.'*^® Thus the question to be decided in most of 
 the cases is simply whether the tax is illegal. 
 
 Under the provision of the statute that any proceed- 
 ing to enforce an illegal tax may be enjoined, it has 
 been held that an injunction will issue to restrain a 
 county treasurer from issuing a warrant to the sheriff 
 to levy on the tax-payer's property to satisfy an illegal 
 tax.^^^ 
 
 Taxes have also been held illegal when the rate is 
 higher than necessary for the purposes for which the 
 tax is levied ;^'^^ and where a township assessor has at- 
 tempted to assess property within the limits of an in- 
 corporated town."*'^ Hence in such cases an injunction 
 will be granted. 
 
 An injunction will not be granted, however, upon a 
 mere allegation that municipal authorities intend to 
 misapply the funds ;^'^'' nor where a party who claims 
 his property is exempt because assessed in another state 
 fails to make oath to the fact as required by law.'*^^ 
 
 476 Bardrick v. Dillon, 7 Okla. 535, 54 Pac. 785. It is difficult to 
 reconcile this statement with language used by the same court in a 
 decision filed the same day. Thus, in Wilson v. Wiggins, 7 Okla. 
 517, 54 Pac. 716, the court says expressly that the statute does not 
 substantially enlarge the remedy, and that such relief cannot be in- 
 voked unless the party brings himself within the general principles 
 of equitable relief, in addition to establishing the illegality com- 
 plained of. Apparently the only effect of this holding is that an 
 injunction will not be granted because of a mere irregularity not 
 making the tax illegal, unless the case is brought under some equi- 
 table head; and it will be noticed that such a ease does not come 
 within the terms of the statute. The rule as embodied in the text 
 seems to be tho true one. Wallace v. Bullen, 6 Okla. 17, 52 Pac. 954, 
 tends to sustain the text. 
 
 477 Gray v. Stiles, 6 Okla. 455, 49 Pac. 1083. 
 
 478 Atchison, T. & S. F. Ry. Co. v. Wiggins, 5 Okla. 477, 49 Pac. 
 1019. 
 
 470 Durlinm v. Linrlcrman, 10 Okla. o70, 64 Pac. 15. 
 4R0 p.ordrink V. Di'lon, 7 Okla. 535, 54 Pac. 785. 
 4S1 Vi'son V. Wi,:rsins, 7 Okla. 517, 54 Pac. 716.
 
 731 KNJOlJMIiN'G TAXATION; OKLAHOxMA. § 438 
 
 Irregularities. — While the injunction will be granted 
 with great freedom when the tax is illegal, it will not 
 be granted because of mere irregularities in the pro- 
 ceedings which do not injure the substantial rights of 
 the citizen or tax-pajer.'*^^ Thus, an injunction will 
 not be granted merely because a tax is levied a few days 
 too late.'*^^ 
 
 Parties Plaintiff. — It will be noticed that the statute 
 provides that any number of persons whose property 
 is affected by an illegal assessment may join in an ac- 
 tion for an injunction. This statute, however, does 
 not authorize one tax-payer to maintain the action for 
 the benefit of all.'*^'* It applies only where a tax is il- 
 legal in the abstract, illegal in and of itself, illegal as 
 applied to every owner of taxable property in the county 
 or district.^^^ But when the tax, as a tax, is valid, but 
 becomes illegal only as applied to particular persons 
 or property, or to particular cases, as where there is an 
 over-assessment, then each person severally interested 
 must sue alone.^^* 
 
 § 438. Increase of Assessment. — Many of the cases have 
 grown out of the action of boards of equalization in 
 raising assessments. It has been held that the terri- 
 torial board of equalization has no power to raise all 
 of the assessments in the territory, that if it attempts 
 to do so its action is illegal, and that therefore an in- 
 
 452 Sweet V. Boyd, 6 Okla. 699, 52 Pae. 939; Boyd v. Wiggins, 7 
 Okla. 85, 54 Pac. 411. 
 
 453 Sharps v. Engle, 2 Okla. 624, 39 Pac. 384. 
 
 484 Stiles V. City of Guthrie, 3 Okla. 26, 41 Pac. 383; Caffrey v. 
 Overholser, 8 Okla. 202, 57 Pac. 205; Martin v. Clay, 8 Okla. 46, 56 
 Pac. 715. 
 
 4S5 Bardriek v. Dillon, 7 Okla. 535, 54 Pac. 785. 
 
 4Sfi Bnrdriok v. Dillon, 7 Okla. 535, 54 Pac. 785; Weber v. Dillon, 
 7 Okla. 568, 54 Pac. 894.
 
 § 439 EQUITABLE EEMEDIES. 732 
 
 junction will issue.^^"^ And when the tax-payer makes 
 a return of his property at the true cash value, as re- 
 quired by statute, he may enjoin the collection of any 
 increase ordered by a board of equalization.^^^ It is 
 held that such a board is not vested with judicial 
 powers, and that therefore w^hen property is over-valued 
 to such an extent as to raise the presumption that it 
 was over-estimated from design, a court of equity will 
 determine the true valuation, and will enjoin the col- 
 lection of the illegal excess.^ ^^ And the injunction will 
 be granted whether or not the tax-payer appeared be- 
 fore the board to protest against its action.*'^'' But the 
 injunction will not be granted unless it appears that 
 the increased assessment is greater than the actual cash 
 value, for unless it is, the assessment is not illegal;*''^ 
 nor will it be granted unless the j)laintiff has listed and 
 returned the property to the assessor at its actual cash 
 value, as required by statute.^^^ 
 
 § 439. Tender. — It is provided by statute that in all 
 actions to enjoin the collection of a tax, ''the true and 
 just amount of taxes due upon such proi)erty or by such 
 person if in dispute, must be ascertained and paid be- 
 fore the judgment prayed for."^^^ But further than 
 this, it is held that before the plaintiffs can be heard 
 to question in a court of equity the legality of any por- 
 tion of the taxes, they must pay, or oiier to pay, that 
 
 4 87 Gray v. Stiles, 6 Okla. 455, 49 Pae. 1083, overruling VPallace v. 
 Bullen, 6 Okla. 17, 52 Pac. 954. 
 
 4SS Caflfrey v. Overholser, 8 Okla. 202, 57 Pae. 206; Cranmer v. 
 Williamson, 8 Okla. 683, 59 Pac. 249. 
 
 489 Bardrick v. Dillon, 7 Okla. 535, 54 Pac. 785. 
 
 490 Wiggins V. A. T. &. S. F. R. Co., 9 Okla. 118, 59 Pac. 248. 
 
 491 Streight v. Durham, 10 Okla. 361, 61 Pac. 1096; Rose v. Dur- 
 ham, 10 Okla. 373, 61 Pae. 1100. 
 
 492 Alva State Bank v. Renfrew, 10 Okla. 26, 62 Pac. 285. 
 
 493 Okla. Stats. 1893, § 5671.
 
 733 ENJOINING TAXATION; OREGON. § 440 
 
 part over which there is no dispute, if any there be, 
 and at least offer in their petition to pay such portion 
 as the court may determine to be legal and just.'*^^ It 
 is suggested in one case that the reason for this latter 
 requirement is that as the court cannot otherwise com- 
 pel the payment of the tax found to be legal the offer 
 in the petition to pay whatever is found to be due must 
 be made, so that full justice may be done.*^^ But 
 where it is clear that a part of the tax is legal, an ac- 
 tual tender must be made before suit. An averment 
 of readiness and willingness to pay is not sufficient.^^® 
 Thus, where an injunction is sought on the ground of 
 excess, tender must be made of the amount legally 
 due.''" 
 
 § 440. Oregon — In Oregon, the considerations which 
 inliuence a court of equity to restrain the collection of 
 a tax are confined to cases where the tax itself is not 
 authorized, or, if it is, where the tax is assessed upon 
 property not subject to taxation, or where the persons 
 imposing it are without authority, or are acting fraud- 
 ulently. In addition, the plaintiff must bring his case 
 within some of the recognized principles of equity.^^® 
 
 An injunction will not be granted because of a mere 
 irregularity in the assessment. Thus, it is no ground 
 for an injunction that the property is assessed in the 
 
 494 Colling V. Green, 10 Okla, 244, 62 Pac. 813; Halff v. Green, 10 
 Okla, 338, 62 Pac. 816; Eussell v. Green, 10 Okla. 340, 62 Pac. 817; 
 Mclntyre v. Williamson (Okla.), 54 Pac. 928. 
 
 495 Lasater v. Green, 10 Okla. 335, 62 Pac. 816. 
 
 496 State Nat. Bank v. Carson (Okla.), 50 Pac. 990. 
 
 497 Mclntyre v. Williamson (Okla.), 54 Pac. 928. 
 
 498 Welch V. Clatsop County, 24 Or. 452, 33 Pac. 934; Southern 
 Or. Co. V. Coos County, 39 Or. 185, 64 Pac. 646; Goodnough v. Powell, 
 23 Or. 525, 32 Pac. 396; Portland Hibernian Ben. Soc. v. Kelly, 28 
 Or. 173, 42 Pac. 3, 52 Am. St. Eep. 769; Alliance Trust Co. v. Multno- 
 mah County, 38 Or. 433, 63 Pac. 498, 30 L. E. A. 167.
 
 S 440 EQUITABLE KEMEDIES. 734 
 
 wrong name.^^^ And the mere illegality of an order 
 of a county court in directing penalties to be added to 
 unpaid taxes is no ground for such relief when the 
 sheriff has no authority to enforce collection and has 
 made no attempt to do so.^"" For the same reason that 
 it is denied in this case, it will be denied when it is 
 sought to restrain an extension of a tax on the tax- 
 books, unless it is wholly unauthorized and void in all 
 its parts.^°^ In none of these actions, however, will the 
 motives of the plaintiff be inquired into.^^^ 
 
 Fraud. — When an assessment is fraudulent and op- 
 pressive equity will relieve by injunction. Thus, where 
 the assessor and the board of equalization fraudulently 
 combine to put an excessive valuation on plaintift''s 
 property ,^'^^ or when mortgages are fraudulently omitted 
 from taxation,^"^ the injunction will be granted; but 
 plaintiff must first do equity by tendering the amount 
 legally due. The mere fact that the assessment is ex- 
 cessive or illegal is not alone sufficient to warrant an 
 injunction, unless the amount is so grossly excessive 
 as to imply fraud.^*^^ The reason for this is that the 
 assessor and the board of equalization act in a judicial 
 capacity in making assessments, and therefore where 
 the assessment is the result of honest judgment fairly 
 
 499 Portland Hibernian Ben. Soc. v. Kelly, 28 Or. 173, 52 Am. St. 
 Eep. 769, 42 Pae. 3. 
 
 ..vu Oregon Keal Estate Co. v. Multnomah County, 35 Or. 285, 58 
 Pae. 106, 
 
 501 Goodnough v. Powell, 23 Or. 525, 32 Pae. 396. 
 
 502 Vaughn v. School District, 27 Or. 57, 39 Pae. 393. 
 
 503 Oregon & C. E. Co. v. Jackson County, 38 Or. 5S9, 64 Pae. 307, 
 65 Pae. 369. 
 
 5f>4 Ilaniblin Real Estate Co. v. City of Astoria, 26 Or. 599, 40 Pae. 
 230; Smith v. Kelley, 24 Or, 464, 33 Pae. 642. 
 
 505 Southern Oregon Co. v. Coos County, 39 Or. 185, 64 Pae. 646; 
 Oregon & C. E. Co, v. Jackson County, 38 Or. 589, 64 Pae, 307, 65 
 Pae. 369.
 
 735 ENJOINING TAXATION; OREGON. § 440 
 
 applied, no injunction will issue.^"^ And as there is an 
 appeal provided for from the action of the assessor, 
 this must be taken before the injunction is sought^"' 
 For this reason an allegation of fraud of the assessor 
 alone in a bill to enjoin the collection of a tax is not 
 sufficient to warrant the court in granting an injunc- 
 tion. In addition, fraudulent action by the board of 
 equalization must be alleged.^'^^ 
 
 Cloud on Title. — The injunction will be more freely 
 granted when it is sought to prevent a cloud on title 
 by a sale of real property for delinquent taxes under 
 void process. Proceedings for the collection of taxes 
 are summary and ex parte, and therefore it must appear 
 that all statutory requirements have been strictly com- 
 plied with before a sale is authorized.^'^^ Thus, where 
 a sheriff fails to attach to the warrant an affidavit re- 
 quired by statute, the sale will be void, and may be en- 
 joined; and it is not necessary as a prerequisite to re- 
 lief that the legal tax be tendered or paid.^^^ 
 
 Tender. — Upon the principle that he who seeks equity 
 must do equity, a party seeking to enjoin the collection 
 of a tax valid in part must tender the legal amount be- 
 fore obtaining an injunction against the illegal part.^^^ 
 Thus, where there is a fraudulent excess in the assess- 
 ment, the tax-payer must tender the amount rightfully 
 due.^^^ And in order to make the tender effectual, the 
 
 B06 Southern Oregon Co. v. Coos County, 39 Or. 185, 64 Pac. €46; 
 West Portland Park Assn. v. Kelly, 29 Or. 412, 45 Pac. 901. 
 
 507 West Portland Park Assn. v. Kelly, 29 Or. 412, 45 Pac. 901. 
 
 508 Southern Oregon Co. v. Coos County, 39 Or. 185, 64 Pac. 640. 
 
 509 Hughes V. Linn County, 37 Or. Ill, 60 Pac. 843. 
 
 510 Id. 
 
 511 Dayton v. Multnomah County, 34 Or. 239, 55 Pac. 23; Alliance 
 Trust Co. V. Multnomah County, 38 Or. 433, 63 Pac. 498; Goodnough 
 V. Powell, 23 Or. 525, 32 Pac. 396; Welch v. Clatsop County, 
 24 Or. 452, 33 Pac. 934. 
 
 512 Welch V. Clatsop County, 24 Or. 452, 33 Pac. 934.
 
 i 441 EQUITABLE EEMEDIES. 736 
 
 money, if refused by the tax-collector, must be paid into 
 court.^^^ 
 
 § 441. Special Assessments. — An injunction will issue to 
 restrain the collection of a special assessment which is in- 
 valid by reason of some defect preventing the local body 
 from acquiring jurisdiction to make it. The statutory 
 procedure must be strictly followed. Therefore, where 
 proper publication is not made, an injunction will is- 
 sue ;^^'* and if no encouragement has been given so as to 
 raise an equitable estoppel, it is not necessary to make 
 any tender for benefits received. 
 
 Where property has received any benefit from a local 
 improvement, courts will not measure the amount, and 
 hence an injunction will not issue merely because the 
 assessment is in excess of benefits. Where, however, 
 the property is so situated that it could not possibly de- 
 rive any benefit, the court will interfere and grant an 
 injunction.^^^ 
 
 Where the proceedings for the improvement of a 
 street are regular, the fact that independent proceed- 
 ings for fixing the grade are irregular or invalid, will 
 not warrant an injunction against the collection of an 
 assessments^® 
 
 It is no ground for an injunction that the statute 
 does not provide for notice, when notice has in fact 
 been given.^^'^ 
 
 Where the municipal authorities have jurisdiction to 
 improve a street, a property owner, who, with knowl- 
 
 513 Welch V. Astoria, 26 Or. 89, 37 Pac. 66. 
 
 514 Ladd V. Spencer, 23 Or. 193, 31 Pac. 474. 
 
 515 Oregon & C. E. Co. v. City of Portland, 35 Or. 229, 35 Pac. 452, 
 22 L. R. A. 713. 
 
 516 Wingate v. City of Astoria, 39 Or. 603, 65 Pac. 982. 
 
 517 Shannon v. City of Portland, 38 Or. 382, 62 Pac. 50.
 
 737 ENJOINING TAXATION; EHODE ISLAND. §§ 442, 443 
 
 edge of such improvement, makes no objection until 
 after the work has been completed, cannot enjoin the 
 collection of the assessment on the ground that the pro- 
 ceedings have not been regular.^^^ Where, however, 
 there is no jurisdiction, as where the requisite petition 
 is not filed, there is no estoppel, and the injunction will 
 issue although no objection has been made until after 
 completion.^^* 
 
 § 442. Pennsylvania — In Pennsylvaniaf where the 
 matters complained of are mere irregularities in the 
 valuation or assessment and the tax is lawfully as- 
 sessed, an injunction will not issue, but the complain- 
 ant will be remanded to his remedy at law. Where, 
 however, there is either a want of power to tax or a 
 disregard of the constitution in the mode of assess- 
 ment, an injunction will issue.^^*^ Thus, such relief 
 may be obtained to restrain the collection of a tax on 
 exempt property.^^^ Likewise, an injunction will issue 
 when an illegal excess is imposed and when the tax is 
 levied without authority.^^^ 
 
 § 443. Khode Island. — In Ehode Island, equity' will 
 not enjoin the collection of a tax at the suit of an in- 
 dividual tax-payer on the ground of illegality, when 
 the illegality ati'ects him alone, unless special equities 
 
 518 Wingate v. City of Astoria, 39 Or. €03, 65 Pac. 982; Wilson v. 
 City of Salem, 24 Or. 504, 34 Pac. 9, 691. 
 
 519 Strout V. City of Portland, 26 Or. 294, 38 Pac. 126. 
 
 520 St. Mary's Gas Co. v. Elk County, 191 Pa. St. 458, 43 Atl. 321; 
 Banger's Appeal, 109 Pa. St. 79, 16 Wkly. Not. Cas. 289; Arthur v. 
 School Dist., 164 Pa. St. 410, 30 Atl. 299, 35 Wkly. Not. Cas. 289; 
 Moore v. Taylor, 147 Pa. St. 481, 23 Atl. 768. 
 
 521 St. Mary's Gas Co. v. Elk County, 191 Pa. St. 458, 43 Atl. 321; 
 Lehigh Coal & Nav, Co., v. Miller, 155 Pa. St. 542, 26 Atl. 660. 
 
 622 Appeal of Conners , 103 Pa. St. 356. 
 Equitable Remedies, Vol. I — 47
 
 15 444,445 EQUITABLE ilExMEDIES. 738 
 
 are shown, ^^^^ And it has been held that the cloud 
 upon title to land cast by a sale under a void tax is too 
 easily dispelled to warrant the court in taking juris- 
 diction on that ground.^^* But when the illegality ex- 
 tends to the whole tax, so that the question involved 
 is the validity of the whole tax and its assessment on 
 every person taxed, equity "»vill take jurisdiction at the 
 suit of one or more tax-payers, suing in behalf of all 
 the tax-payers as well as in his or their own behalf 
 for the purpose of preventing a multiplicity of suits.^^'^ 
 An injunction will not lie against a tax-collector to 
 prevent a mode of levy authorized by statute because 
 some other mode may be more equitable.^^^ 
 
 § 444. South Carolina. — In South Carolina an in- 
 junction will issue to restrain the collection of a tax 
 on exempt property which casts a cloud on title.^^'^ 
 
 § 445. South Dakota. — In South Dakota injunctions 
 are readily granted to restrain the collection of illegal 
 taxes. Just where the limitations are is hard to de- 
 termine. The injunction will be granted to restrain 
 the collection of an illegal excess, provided the amount 
 legally due is teudered.^-^ It will also be granted to 
 enjoin the collection of a tax on personal property, regu- 
 
 523 Greene v. Mumford, 5 E. I. 472, 73 Am. Dec. 79. 
 
 524 Id.; Sherman v. Leonard, 10 E. I. 469. 
 
 525 McTwiggan v. Hunter, 18 E. L 776, 30 Atl. 962; Tefft v. Lewis 
 (E. I.), 60 Atl. 243; Sherman v. Benford, 10 E. L 559; Quimby v. 
 Wood, 19 E. I. 571, 35 Atl, 149. 
 
 526 People's Sav, Bank v. Tripp, 13 E, I, 621. 
 
 527 Vesta Mills v. City Council of Charleston, 60 S. C, 1, 38 S, E. 
 226, But by Code 1902, § 412, Eev, Stats, 1893, i 339, "collection 
 of taxes shall not bo stayed or prevented by any injunction, writ or 
 order": Western Union Tel, Co, v. Town of Winnsboro (S, C), 50 
 S. E. 870, 
 
 528 Dakota Loan & Trust Co. v. County of Coddington, 9 S, D, 
 159, 68 N, W, 314.
 
 739 ENJOINING TAXATION; SOUTH DAKOTA. § 445 
 
 lar on its face, which is made a lien on land, especially 
 when there is a possibility of a multiplicity of ac- 
 tions.^29 Thus, a public sale to numerous purchasers 
 of shares in a cori^oration for illegal personal taxes, 
 constituting a lien on real property, suggests a multi- 
 tude of suits and irreparable injury, to avoid which the 
 aid of a court of equity may be invoked.^^" But the 
 courts, in at least one instance, have gone further, and 
 have held that an injunction will issue to restrain the 
 sale of personal property for an illegal tax, irrespective 
 of whether it constitutes a lien on land or not. Thus, 
 an injunction will issue to prevent the seizure and sale 
 of personal property in satisfaction of a tax wrongfully 
 and unlawfully levied thereon, in a county in which 
 the plaintiff is not a resident, and in which the prop- 
 erty is presumed not to have been when the assessment 
 was made.^^^ Inconsistent as it may seem with some 
 of their other holdings, the courts have held that no 
 injunction will issue to restrain the collection of an il- 
 legal tax when there is an adequate remedy at law. 
 Thus, the collection of a state insi)ection tax will not 
 be restrained simply because the act authorizing it may 
 be unconstitutional, for if such prove to be the case, 
 the officer enforcing it will be a mere trespasser, and ac- 
 cordingly the plaintiff will have an adequate remedy at 
 law.«32 
 
 Where a tax deed is set aside for defects not affecting 
 the validity of the tax, a decree that the party attack- 
 ing shall reimburse the purchaser is within the equi- 
 table powers of the court.^^^ 
 
 529 Macomb v. Lake County, 9 S. D. 466, 70 N. W. 652. 
 
 530 Id. 
 
 531 Knapp V. Charles Mix County, 7 S. D. 399, 64 N. W. 187. 
 
 532 Franklin v. Appel, 10 S. D. 391, 73 N. W. 259. 
 
 533 McKinney v. Minnehaha County (S, D.), 97 N. W. 15.
 
 ii 446-448 EQUITABLE REMEDIES. 740 
 
 § 446. Special Assessments. — There is a presumption 
 that the proceedings of municipal officers in imposing 
 special assessments are regular. Therefore, a party 
 seeking an injunction must set up in his complaint some 
 substantial requirement of the statute which has not 
 been complied with.^^* 
 
 § 447. Tennessee. — In Tennessee tax-books are pro- 
 cess equivalent to an execution in the hands of an of- 
 ficer. An injunction will issue to restrain the collec- 
 tion of a tax, even on personal property, under void 
 process, although there is a concurrent remedy by cer- 
 tiorari.^^^ An injunction, however, will not issue to 
 restrain the collection of a void tax when the complain- 
 ant waits until the greater part has been paid.^^^ 
 
 § 448. Texas. — In Texas an injunction will issue to 
 restrain the collection of an illegal or fraudulent tax. 
 Thus, where the property of an individual is about to 
 be sold to satisfy a tax levied against him on prop- 
 erty which he does not own,^^'^ as, for instance, where 
 a bank is assessed upon its own stock which is the 
 property of its stockholders,^^^ or where real property 
 is about to be sold for an illegal tax on personal prop- 
 erty,^^® an injunction will issue to prevent the wrong. 
 Any illegality not apparent on the face of the proceed- 
 ings,^^" such as a case of double taxation,^^^ is sufficient 
 
 534 Phillips V. City of Sioux Falls, 5 S. D. 524, 59 N. W. 881. 
 
 635 Alexander v, Henderson, 105 Tenn. 431, 58 S. W. 648; National 
 Bank of Chattanooga v. Mayor & Aldermen of Chattanooga, 8 
 Heisk, 816. 
 
 536 Kennedy v. Montgomery, 98 Tenn. 165, 38 S. W. 1075. 
 
 537 Davis V. Burnett, 77 Tex. 3, 13 S. W. 613. 
 
 538 Waco National Bank v. Rogers, 51 Tex. 606. 
 
 639 Court V. O'Connor, 65 Tex. 339. 
 
 640 Cook V. Galveston, H. & S. A. E. Co., 5 Tex. Civ. App. 644, 
 24 S. W. 544; Blessing v. City of Galveston, 42 Tex. 641. 
 
 641 Schmidt v. Galveston, H. & S. A. K. Co. (Tex. Civ. App.), 
 24 S. W. 547.
 
 741 ENJOINING TAXATION; TEXAS. § 448 
 
 to warrant the court in granting the relief. And where 
 an illegal tax affecting numerous persons is sought to 
 be enforced, any one or more of the parties sought to 
 be subjected to the imposition may, in the same suit, 
 restrain its collection.^^^ Thus, any number of tax- 
 I>ayers may join in an action to restrain the collection 
 of an illegal poll-tax.^^^ In cases where the whole tax 
 is illegal, it is not necessary to apply to the board of 
 equalization.^^^ The function of that board is to cor- 
 rect errors in the valuation of property which has been 
 properly assessed. It has no power to add to the rolls 
 property not previously assessed, nor to take from them 
 property which they embrace. Hence such an appeal 
 would be useless. 
 
 Where, however, it is only an excess in the assessment 
 that is complained of, the tax-payer must resort to the 
 board of equalization, because of the familiar doctrine 
 that in matters of this kind equity will not take juris- 
 diction when there is an adequate remedy at law.^^^ 
 And no trifling excuse, such as the illness of a cor- 
 poration's agent, will be sufficient to give the court jur- 
 isdiction.^^ ^ Where the board errs in honest judgment, 
 there is no appeal from its decision, and no injunction 
 will issue; but when, in raising or fixing the value of 
 property, it acts from corrupt or fraudulent • motives, 
 and in violation of the laws of the state, whether con- 
 stitutional or statutory, its acts are voidable at the suit 
 
 642 Morris v. Cummings, 91 Tex. 618, 45 S. W. 383. 
 
 543 Id. But injunction does not lie after suits have already 
 teen begiin for the collection of the taxes: McMickle v. Hardin 25 
 Tf.x. Civ. App. 222, 61 S. W. 322. 
 
 544 Court V. O'Connor, 65 Tex. 339; Davis v. Burnett, 77 Tex. 3, 
 13 S. W. 613. 
 
 545 Duck V. Peeler, 7i Tex. 272, 11 S. W. 1111. 
 
 54 Clawson Lumber Co. v. Jones, 20 Tex. Civ. App. 208, 49 S. W. 
 909.
 
 § 449 EQUITABLE EEMEDIES. 742 
 
 of the party aggrievGcl, and an injunction will issue to 
 restrain the collection of the excess.^*^ And in an ac- 
 tion to restrain the collection of an illegal excess, the 
 plaintiff must allege the definite amount of excess. 
 Thus, an allegation that plaintiff's assessment had been 
 illegally increased because the citj^ had illegally ex- 
 empted certain property from taxation, is not sufficient 
 unless the amount of such increase is alleged.*^** And 
 in all of these cases the plaintiff must do equity before 
 obtaining the injunction by making a tender of the 
 amount legally due.^^* 
 
 Where property is subject to taxation, a tax levied 
 upon it will not be enjoined because of mere irregulari- 
 ties in the assessment. Thus, where there is a misde- 
 scription of the property by the assessor, or an irregu- 
 larity in his entering it upon the assessment list or 
 roll, no ground for an injunction is presented.^^^ 
 
 An injunction will not issue to restrain the collec- 
 tion of a municipal tax on the ground of the invalidity 
 of the municipal incorporation, although both the cor- 
 poration and its officers are insolvent.^^^ 
 
 § 449. Special Assessments. — The statute providing a 
 procedure for local improvements must be strictly fol- 
 lowed, and if not, an injunction will issue to restrain 
 the collection of the assessment. Thus, an injunction 
 will issue when an estimate of the cost is not first made 
 by the city authorities, as required by statute.^^^ 
 
 547 Johnson v. Holland, 17 Tex. 210, 43 S. W. 71. 
 B48 Altgelt V. City of San Antonio, 81 Tex. 436, 17 S. "W. 75, 13 
 L. R. A. 383. 
 
 549 George v. Dean, 47 Tex. 73. 
 
 550 George v. Dean, 47 Tex. 73. 
 
 551 Troutman v. McCleskey, 7 Tex. Civ. App. .561, 27 S. W. 173. 
 
 552 Kerr v. City of Corsicana (Tex. Civ. App.), 35 S. W. 694.
 
 743 ENJOINING TAXATION; UTAII-VEKMONT. §§ 450-452 
 
 § 450. Utah. — In Utah it is provided by statute that 
 "no injunction shall be granted by any court or judge 
 to restrain the collection of any tax or any part thereof, 
 nor to restrain the sale of any property for the non- 
 payment of the tax, except, first, where the tax, or any 
 part thereof sought to be enjoined is illegal, or is not 
 authorized by law. If the payment of a part of a tax 
 is sought to be enjoined, the other part must be paid 
 or tendered before action can be commenced."^^^ In 
 construing this, the supreme court has held that the 
 remedy should not be invoked, except in clear cases, 
 based upon unquestionable facts, coming within the clear 
 terms, letter, and spirit of the statute,^^* 
 
 Before the enactment of the statute quoted above, it 
 was held that an injunction will not issue to restrain 
 the collection of an illegal tax on the ground that it 
 casts a cloud on title to real estate, when personal prop- 
 erty has already been levied upon to satisfy it.^^^ The 
 presumption is that the levy is sufficient to satisfy the 
 tax, and hence the cloud is removed. 
 
 § 451. Vermont — An injunction will not be granted 
 to restrain the collection of a tax on the ground of 
 fraud, where there has been an adverse decision by a 
 board of listers.^^^. 
 
 § 452. Special Assessments. — An assessment void upon 
 its face does not create a cloud on title which the court 
 will remove ;^^^ so held of an assessment which did not 
 affirmatively show, as required by the city charter, that 
 
 553 Laws 1896, p. 465, § 179. 
 
 554 Mercur Gold M. & M. Co. v. Spry, 16 Utah, 222, 52 Pae. 382. 
 655 Mercur Gold M. & M. Co. v. Spry, 16 Utah, 222, 52 Pac. 382. 
 556 Phillips V. Bancroft, 75 Vt. 357, 56 Atl. 9. 
 
 657 Blanchard v. City of Barre Vt.), 60 Atl. 970.
 
 58 453,454 EQUITABLE REMEDIES. 744 
 
 it was made "according to special benefits" to the prop- 
 erty assessed.^^^ 
 
 § 453. Virginia. — In Virginia, an injunction has been 
 granted to restrain a county clerk from conveying lands 
 sold to the state for illegal taxes to an applicant for 
 purchase, on the ground that such conveyance would 
 cast a cloud on title.^^^ And the enforcement of a tax 
 on exempt property will be enjoined.^^^ Unconstitu- 
 tionality alone is no ground for injunction.^^^ ^Vhen 
 a municipal assessment has been corrected by the tri- 
 bunal provided by law and yet the municipal author- 
 ities proceed to levy the tax upon the original assess- 
 ment, an injunction against the collection of such a 
 tax will issue.^^2 
 
 § 454. Washington. — In Washington, an injunction 
 will issue to restrain the collection of a tax when it is 
 illegal or fraudulent, and in certain cases where it is 
 excessive. Where the tax is illegal, it is immaterial 
 whether the subject matter is real or personal property. 
 Thus, an injunction will issue to restrain the sale of 
 personal property under a tax beyond the jurisdiction 
 of the assessor to assess ;^*^^ and to restrain the sale of 
 corporate stock to satisfy an illegal assessment.^^^ And 
 in case of personal property, at least, it will issue to 
 restrain an illegal sale, even though the original tax 
 
 558 Id. 
 
 559 Baker v. Briggs, 99 Va. 360, 3 Va. Sup. Ct. Eep. 252, 
 
 560 City of Staunton v. Mary Baldwin Seminary, 99 Va. 653, 3 
 Va. Sup. Ct. Eep. 468, 39 S. E. 596. 
 
 5C1 Thomas v. Eowe (Va.), 22 S. E. 157. 
 
 562 City of Eichmond v. Crenshaw, 76 Va. 936. 
 
 563 Northwestern Lumber Co. v. Chehalis County, 24 Wash. 626, 
 64 Pac. 787. 
 
 504 Lewiston Water & Power Co. v. Asotin County, 24 Wash. 371, 
 64 Pac. 544.
 
 745 ENJOINING TAXATION; WASHINGTON. S 454 
 
 was valid. Thus, where personal property is pur- 
 chased in good faith by a person who has no notice 
 of any lien upon it for taxes, such person may enjoin 
 a sale to satisfy such lien.^^^ 
 
 Where a tax is fraudulently levied, it is also held 
 that an injunction will issue. Thus, it will be granted 
 where the tax-payer, relying upon a statement by the 
 assessor that the assessment will be the same as in the 
 previous year, fails to go before the board of equaliza- 
 tion to protest against an increase.^^^ 
 
 The rules as to excessive valuation are sliglitly dif- 
 ferent for real and personal property. While the court 
 will not interfere "to correct mere mistakes or inad- 
 vertences, or to contravene or set aside the judgments 
 of assessors or boards of equalization in relation to 
 values, it will interfere when the officers fraudulently, 
 capriciously, or tyrannically refuse to exercise their 
 judgment by adopting a rule or system of valuation de- 
 signed to operate unequally and to violate a fundamental 
 principle of the constitution."^^^ Thus, where the as- 
 sessment of real property is arbitrary and made with- 
 out regard to the true value, as where a mortgage^ is 
 assessed at thirty thousand dollars while the land it- 
 self is assessed at only two thousand, an injunction will 
 issue, although the board of equalization refuses re- 
 lief.^*^^ And the injunction will issue notwithstanding 
 that a statutory remedy is provided by allowing ob- 
 jections to the rendition of a judgment, for the plain- 
 tiff is entitled to such relief in order to remove the 
 
 665 Phelan v. Smith, 22 Wash. 397, 61 Pac. 31. 
 
 566 Landers' Estate Co. v. Clallam County, 19 Wash. 569, 53 Pac. 
 670. 
 
 567 Andrews v. King County, 1 Wash. 46, 22 Am. St. Hep. 13(3, 
 23 Pac. 409. 
 
 668 Knapp V. King County, 17 Wash. 567, 50 Pac. 480.
 
 S 455 EQUITABLE REMEDIES. 746 
 
 cloud from his title.^^^ In cases of personal property 
 the rule is said to be not quite so broad. Thus, in such 
 cases, it has been held that no injunction will issue 
 when the sole question is whether or not the board of 
 equalization acted under an honest belief in placing a 
 value on the property.^"^" The case of Andrews v. King 
 County, cited supra, is distinguished as an exceptional 
 case. 
 
 An injunction will not issue because of a slight ir- 
 regularity. It has been held accordingly that a statute 
 requiring the rate to be fixed within thirty days after 
 the filing of the assessment-roll is not so mandatory 
 that a slight delay will invalidate the levy; and conse- 
 quently an injunction will not issue.^'^^ 
 
 Tender. — When a tax is valid in part and void in 
 part, a tender must be made of the valid part before the 
 other can be enjoined.^'^^ If the tender is bona fide, the 
 finding of the court that a larger amount is due affects 
 only the question of costs. The bill should allege the 
 amount justly due, a tender of it, and an offer to pay 
 such further sum as should be found to be due.^'^^ 
 Where the tax is wholly void, however, no tender is 
 necessary.^^* 
 
 § 455. Special Assessments. — Where the assessment is 
 manifestly unequal, an injunction is proper. Thus, 
 where the value of the abutting property is made the 
 basis for the assessment and it appears that plaintiff's 
 property is taken for a distance of a thousand feet back 
 
 609 Benn v. Chchalis County, 11 Wash. 134, 39 Pac. 365. 
 
 570 Olympia Water Works v. Gelbach, 16 Wash. 482, 48 Pac. 251. 
 
 571 Wingate v. Ketner, 8 Wash. 94, 35 Pac. 591. 
 
 572 2 Ballinger's Ann. Codes & Stats., § 5678. 
 
 573 Landes's Estate Co. v. Clallam County, 19 Wash. 569, 53 
 Pac. 670. 
 
 574 Lewiston Water & Power Co. v. Asotin County, 24 Wash. 371, 
 C4 Pac. 544.
 
 f47 ENJOINING TAXATION; WEST VIEGINIA. S 45b 
 
 from the street for purpose of assessment while other 
 property is assessed for a much less distance, an in- 
 junction is proper.^"^^ And in such a case it is imma- 
 terial that the plaintiff has petitioned for the improve- 
 ment An injunction is also proper when the work has 
 been done in such a manner that it is a detriment rather 
 than a benefit to the property. Where this appears it 
 is immaterial whether or not the work has been ac- 
 cepted by the proper board.^^^ 
 
 § 456. West Virginia. — In West Virginia an injunc- 
 tion will not issue to restrain the collection of a tax on 
 the mere ground of illegality. There must exist in ad- 
 dition circumstances bringing the case within some rec- 
 ognized head of equity jurisdiction, such as the preven- 
 tion of multiplicity of suits, irreparable injury or cloud 
 on title.^"^^ Likewise, an injunction will not issue when 
 a tax is merely irregular, as where property subject to 
 taxation is erroneously assessed.^'^^ In such cases the 
 tax-payer is left to his remedy at law. 
 
 A statute giving a remedy at law for an illegal tax 
 which does not by its terms take away the equitable 
 jurisdiction will be construed as creating an additional 
 remedy, and will not oust the court of equity of its 
 jurisdiction.^^® 
 
 675 Howell V. City of Tacoma, 3 Wash. 711, 28 Am. St. Kep. 83, 
 24 Pac. 449. 
 
 57 6 Hasch V. City of Seattle, 10 Wash. 435, 38 Pae. 1131. 
 
 577 Douglass V. Town of Harrisville, 9 W. Va. 162, 27 Am. Rep. 
 54S; Winifrede Coal Co. v. Board of Education, 47 W. Va. 132, 34 
 S. E. 776; Christie v. Melden, 23 W. Va. 667; Riddle v. Town of 
 Charlestown, 43 W. Va. 796, 28 S. E. 831; Williams v. County 
 Court, 26 W. Va. 488, 53 Am. Rep. 94; Blue Jacket Consol. Copper 
 Co. V. Scherr, 50 W. Va. 533, 40 S. E. 514. 
 
 578 Tygart's Val. Bank v. Town of Philippi, 38 W. Va. 219, 18 
 S. E. 489; Christie v. Melden, 23 W. Va. 667. 
 
 579 Winifrede Coal Co. v. Board of Education, 47 W. Va. 132, ^4 
 S. E. 776.
 
 ( 457 EQUITABLE REMEDIES. 748 
 
 Personal Property. — The sale of personal property 
 for unpaid taxes will not be restrained unless it is of 
 peculiar value to the owner, and it is manifest that 
 great injury would result from the sale.^^'^ The rule 
 is laid down more broadly when purely municipal taxa- 
 tion is in question. Thus, it has been held that if munic- 
 ipal authorities tax persons or property not legally tax- 
 able, or if they exceed the limit prescribed by the stat- 
 ute conferring their power to tax, their action is ultra 
 vires and void, and equity has power to grant relief. ^^^ 
 
 Multiplicity of Suits. — Where all the tax-payers of a 
 county are affected by an illegal tax, one or more tax- 
 payers, in behalf of himself or themselves and all other 
 tax-payers of the county subject thereto, may obtain an 
 injunction to prevent the collection of such tax, in order 
 to prevent a multiplicity of suits.^^^ 
 
 Cloud on Title. — Taxes assessed on real property 
 without lawful authority cast a cloud on title, and 
 therefore their collection will be enjoined.^^* 
 
 § 457. Special Assessments. — An injunction will not 
 issue to restrain the collection of a special assessment 
 on the ground of illegality unless facts exist bringing 
 the case under some other recognized head of equity 
 
 C80 White V. Stender, 24 W. Va. 615, 49 Am. Eep. 283. 
 
 581 Christie v. Melden, 23 W. Va. 667; Grim v. Town of Philippi, 
 38 W. Va. 122, 18 S. E. 466. 
 
 5S2 Williams v. County Courr, 26 W. Va. 488, 53 Am. Eep. 94 (a 
 leading case); Winifrede Coal Co. v. Board of Education, 47 W. Va. 
 132, 34 S. E. 776; McClung v. Livesay, 7 W. Va. 329; Doonan v. 
 Board of Education, 9 W. Va. 246; Corrothers v. Board of Educa- 
 tion, 16 W. Va. 527; Blue Jacket Co. v. Scherr, 50 W. Va. 533, 40 
 S. E. 514. But the suit must be brought expressly on behalf of all 
 the tax-payers: See cases cited. 
 
 583 Powell V. City of Parkersburg, 28 W. Va. 698; Tygart 'a Val 
 Bank v. Town of Philippi, 38 W. Va. 219, 18 S. E. 489.
 
 749 ENJOINING TAXATION; WISCONSIN. S 458 
 
 jurisdiction.^^* And the mere fact that the assessment 
 is a lien on real estate is not sufficient to confer juris- 
 diction when there is an adequate remedy at law by 
 suit to recover back the amount paid under protest.^*^ 
 In a recent case, however, the rule is laid down broadly, 
 that equity has jurisdiction to enjoin the collection of 
 an ultra vires assessment.^^^ 
 
 § 458. Wisconsin — In General. — It is the settled doe- 
 trine in Wisconsin that it is not enough to avoid a tax 
 in equity to show that the proceedings were irregular, 
 or even void, but, in addition, it must be shown that the 
 taxes were inequitable, and that it will be against con- 
 science to let them go on.^^'^ 
 
 From the general principle that equity possesses no 
 power to revise, control, or correct the action of public, 
 political or executive offlcers, at the suit of a private per- 
 son, except as incidental and subsidiary to the protection 
 of some private right, or the prevention of some private 
 wrong, the mere fact that the voters of a town have 
 voted an illegal tax is not sufficient ground for an in- 
 
 584 Wilson V. Town of Philippi, 39 W. Va. 75, 19 S. E. 553; 
 Douglass V. Town of Harrisville, 9 W. Va. 162, 27 Am. Eep. 548. 
 
 585 Wilson V. Town of Philippi, 39 W. Va. 75, 19 S. E. 553. 
 
 586 Cain V. City of Eljiins (W. Va.), 49 S. E. 898. 
 
 587 Wells V. Western Paving etc. Co., 96 Wis. 116, 70 N. W. 1071; 
 Chicago & N. W. E. Co. v. Porest County, 95 Wis. 80, 70 N. W. 77; 
 Hayes v. Douglas County, 92 Wis. 429, 53 Am. St. Eep. 926, 65 N, W. 
 482, 31 L. E. A. 213; Hixon v. Oneida County, 82 Wis. 531, 52 N. W. 
 445; Bond v. City of Kenosha, 17 Wis. 286 (no injunction where the 
 irregularity diminished rather than increased plaintiff's taxes); 
 Warden v. Board of Supervisors of Fond du Lac County, 14 Wis. 618 
 (same; a leading case). Marsh v. Supervisors of Clark County, 42 
 Wis. 502, Goff V. Supervisors of Outagamie County, 43 Wis. 55, and 
 Schettler v. City of Fort Howard, 43 Wis. 48, so far as they may 
 be considered as having departed from this principle, have since been 
 ovenuled: See Hixon v. Oneida County, supra.
 
 S 459 EQUITABLE EEMEDIES. 750 
 
 junction, in advance of any invasion of the legal rights 
 of the plaintiff.^ss 
 
 A court of equity has no jurisdiction to restrain the 
 collection of taxes illegally or improperly assessed upon 
 personal property, inasmuch as the party injured has 
 an ample remedy by action against the municipal cor- 
 poration to which the money is paid or for which it is 
 collected.^*' 
 
 § 459. Defects Going to the Validity of the Assessment — 
 The doctrine was laid down by the supreme court of 
 Wisconsin at an early day, that a court of equity will 
 not interfere to declare a tax invalid and restrain its 
 collection, unless the objections to the proceedings are 
 such as go to the very groundwork of the tax, and neces- 
 sarily affect materially its principle, and show that it 
 must necessarily be unjust and unequal. ^^" When the 
 objection is a mere non-compliance with some direction 
 of the statute, notwithstanding which the tax may have 
 been entirely just or equal, it ought not to have the 
 effect of rendering the whole tax invalid. 
 
 Where the assessment-roll was unverified, and all the 
 rules established by law to govern the assessment of 
 property had been violated, and one of the assessors 
 testified that he could not make the oath required by 
 law without being guilty of perjury, the assessment 
 
 588 Judd V. Town of Fox Lake, 28 Wis. 583. 
 
 589 Van Cott V. Board of Supervisors of Milwaukee County, 18 
 Wis. 259. 
 
 590 Hixon V. Oneida County, 82 Wis. 531, 52 N. W. 445, nnd 
 cases cited; W^isconsin Central E. Co. v. Ashland County, 81 Wis. 
 10, 50 N. W. 937; Canfield v. Bayfield County, 74 Wis. 60, 64, 41 
 N. W. 437, 42 N. W. 100; Hart v. Smith, 44 Wis. 217; Kaehler v. 
 Dobberpuhl, 56 Wis. 480, 14 N. W. 644; Marsh v. Supervisors of 
 Clark County, 42 Wis. 502, 512; Mills v. Johnson, 17 Wis. 598, 602; 
 Warden v. Supervisors of Fond du Lac County, 14 Wis. 618; Mills 
 V. Gleason, 11 Wis. 470, 497, 78 Am. Dec. 721.
 
 75J ENJOINING TAXATION; WISCONSIN. § 460 
 
 was held to be necessarily unequal and the whole tax 
 vitiated ;^^^ so, where there was an arbitrary classi- 
 fication of lands by rules that disregarded the prin- 
 ciples laid down by statute to guide the assessor in mak- 
 ing valuations.^^^ A complaint alleging a corrupt and 
 fraudulent assessment, to the great injury of the plain- 
 tiff, in that the assessors, in violation of law, inten- 
 tionally assessed vacant lands at a much greater sum 
 in proportion to their value than improved lands, states 
 a defect going to the validity of the assessment and af- 
 fecting the groundwork of the tax.^^^ The intentional 
 omission, as exempt property, of property not exempt, 
 goes to the groundwork of the whole tax.^^^ It has been 
 held that where the assessor adopted a rule of valuation 
 based on what he thought the lands would bring at 
 a forced sale, in violation of the statutory rule that 
 lands should be assessed at the value which could ordi- 
 narily be obtained therefor at private sale, the whole 
 tax is vitiated, and an injunction is proper ;^^^ so, where 
 the assessment was made on a basis of one-third of the 
 real value.^^* 
 
 § 460. Defects not Going: to the Validity of the Assess- 
 ment — A complaint alleging that in making the levy one 
 
 B91 Marsh v. Supervisors of Clark County, 42 Wis. 502, as ex- 
 plained in Fifield v, Marinette County, 62 Wis. 532, 538, 22 N. W. 
 705. 
 
 592 Hersey v. Board of Supervisors of Barron County, 37 Wis. 75. 
 
 593 Anderson v, Douglas County, 98 Wis. 393, 74 N. W. 109. 
 
 594 Green Bay & M. Canal Co. v. Outagamie County, 76 Wis. 587, 
 45 N. W. 536; Hersey v. Board of Supervisors of Milwaukee County, 
 16 Wis. 186, 82 Am. Dec. 713; Weeks v. City of Milwaukee, 10 Wis. 
 242. 
 
 595 Goff V. Supervisors of Outagamie County, 43 Wis, 55. 
 
 596 Schettler v. City of Fort Howard, 43 Wis. 48. Doubt has be6n 
 cast upon these two cases, however, by later decisions: See Hixon v. 
 Oneida County, 82 Wis. 531, 52 N. W. 445.
 
 i 460 EQUITABLE EEMEDIES. 752 
 
 item was for a certain sum for "the general fund," and 
 that the city had no authority to levy for such a fund, 
 does not state a defect going to the validity of the as- 
 sessment.^^'^ The fact that the resolution of a town for 
 raising taxes fails to designate the specific purposes 
 for which the taxes were to be raised does not "go to 
 the groundwork" of the tax, and necessarily affect ma- 
 terially its principle, so as to be available in a court of 
 equity to enjoin or restrain its collection.^^^ The 
 honest opinion and judgment of the assessor and of the 
 board of review must be conclusive, unless the inequal- 
 ities or overvaluations are shown to be so gross as to 
 be evidence of bad faith or arbitrary judgment.^^^ The 
 mere failure of the assessor to verify the assessment- 
 roll as required by law, does not necessarily render the 
 taxes apportioned upon such assessment unequal or 
 unjust.^"'* All reasonable presumptions must be made 
 in favor of the regularity of proceedings of the board 
 of review; and a complaint which merely states that 
 the plaintiff testified before the board as to the value 
 of the land, and that the board refused to reduce the 
 valuation in accordance with his testimony, without 
 stating that this was the only evidence presented on the 
 subject, does not show that the board acted arbitrarily, 
 in disregard of all the evidence before it, so as to sustain 
 an injunction.^**^ 
 
 597 Anderson v. Douglas County, 98 Wig. 393, 74 N. W. 109. 
 
 598 Chicago & N. W. Ey, Co. v. Forest County, 95 Wis, 80, 70 N. 
 W. 77. 
 
 599 Green Bay & M. Canal Co. v. Outagamie County, 76 Wis. 587, 
 45 N. W. 536. 
 
 600 Fifield v. Marinette County, 62 Wis. 532, 22 N. W. 705, crit- 
 icising language used in Marsh v. Supervisors of Clark County, 42 
 Wis. 502. 
 
 «oi Tainter v. Lucas, 29 Wis. 375.
 
 753 ENJOINING TAXATION; WISCONSIN. S 461 
 
 § 461. Cloud on Title — Under the Wisconsin statutes, 
 a tax upon lands, where the proceedings, are not void 
 upon their face, is a lien thereon from the time of the 
 assessment; and, if illegal, it constitutes a cloud upon 
 the title, before as well as after the tax sale. Equity 
 will therefore interfere, not only after the sale to cancel 
 the certificate, but before a sale, to declare the assess- 
 ment void and restrain the collection.^'^^ r^\^Q statute 
 making the tax deed prima facie evidence of the regu- 
 larity of all the proceedings, illegalities that would 
 probably not appear on the face of the tax deed, and 
 could only be shown by proof dehors the deed, render 
 the deed a cloud on title, and its issuance should be 
 enjoined.^"^ 
 
 It is not an abuse of discretion to refuse to restrain 
 by preliminary injunction a sale of lands for taxes 
 pending the determination of a controversy as to their 
 validity, when the controversy can be finally concluded 
 before plaintiff's title can be disturbed or injuriously 
 clouded by a tax deed.^*^^ 
 
 Where jurisdiction has attached for the purpose of 
 canceling a tax certificate as a cloud on title, the court 
 may go on and give complete relief by restraining the 
 sale of personal property which had been seized for the 
 tax, although for the latter purpose alone a court of 
 equity would not have interfered by injunction.^*^^ 
 
 But one person cannot maintain an action to set 
 aside any tax upon real estate, except ui^ou such as he 
 owns, or has some interest in; and two persons cannot 
 
 602 Milwaukee Iron Co. v. Town of Hubbard, 29 Wis. 51. 
 
 603 Jenkins v. Board of Supervisors of Eock County, 15 Wis. 
 11; and see Dean v. City of Madison, 9 Wis. 402. 
 
 604 Chicago & N. W. E. Co. v. Langlade County, 104 Wis. 373, 
 80 N. W. 598. 
 
 605 Hamilton v. City of Fond du Lac, 25 Wis. 490. 
 
 Equitable Rfimedies, Vol. I — 4S
 
 § 462 EQUITABLE EEMEDIES. 754 
 
 properly be joined as plaintiffs in the same action to 
 set aside taxes which are a lien upon their separate 
 property only.^*^® 
 
 § 462. Payment or Tender. — Following the familiar 
 principle of equity jurisprudence that he who seeks 
 equity must do equity, it is well established that a court 
 of equity will not grant relief to restrain a tax sale, 
 cancel a tax certificate, or restrain the issue of a tax 
 deed thereon, except upon terms that the taxes be first 
 paid to which there are no objections, or which, in jus- 
 tice and equity, the property owner ought to pay.*^"^ 
 This doctrine, though supposed, for a time, to have been 
 somewhat discredited,^^^ has since been repeatedly af- 
 firmed, and stands now unassailable.^"^ Where taxes 
 are legal, or, whether strictly legal or not, are just and 
 equitable, and are joined with such as are illegal and 
 inequitable, the illegal excess, if it can be separated, 
 is only conditionally voidable in equity, the condition 
 being payment of the balance of the taxes.^^° A com- 
 plaint which does not allege in direct terms the injus- 
 tice and inequality of the tax, and further alleges a state 
 of facts which, if proved on the trial, would establish 
 the truth of the general allegation of its injustice, does 
 not state a cause of action for equitable relief, unless 
 
 606 Gilkey v. City of Merrill, 67 Wis. 459, 30 N. W. 733; New- 
 comb V. Horton, 18 Wis. 566; Barnes v. Beloit, 19 Wis. 93. 
 
 607 Wells V. Western Paving etc. Co., 96 Wis. 116, 70 N. W. 1071, 
 and cases cited; Fifield v. Marinette County, 62 Wis. 532, 537, 22 
 N. W. 705. 
 
 608 See Marsh v. Supervisors of Clark County, 42 Wis. 502. 
 
 609 Wells V. Western Paving etc. Co., 96 Wis. 116, 70 N. W. 1071, 
 and cases cited, 
 
 610 Wells V. Western Paving etc. Co., 96 Wis. 116, 70 N. W. 
 1071; Mills V. Johnson, 17 Wis. 598, 603; Bond v. City of Kenosha, 
 17 Wis. 286; Hersey v. Board of Supervisors of Milwaukee County, 
 16 Wis. 186, 82 Am. Dec. 713.
 
 755 ENJOINING TAXATION; WISCONSIN. § 463 
 
 there be a further allegation of an offer to pay the 
 taxes justly chargeable to the property of the plaintiff 
 on account of which he seeks relief. ^^^ 
 
 In an action to restrain the issue of a tax deed, on 
 the ground of a fraudulent assessment, v/here it was 
 impossible for the plaintiff to determine, by computa- 
 tion or otherwise, what amount of the taxes was justly 
 chargeable against his lands, an allegation of payment 
 or tender is dispensed with; and there is no good rea- 
 son for requiring an averment of willingness to pay, as 
 that would be an allegation of mere mental condition, 
 of no benefit to the defendant, and incapable of dis- 
 proof. ^^^ And the rule requiring payment of the legal 
 taxes as a condition of relief against the illegal cannot 
 be applied in a case where two lots are assessed to- 
 gether as the property of a person who did not own and 
 never had owned one of them.^^^ 
 
 § 463. Special Assessments. — It has been repeatedly 
 held that where legal authority exists to make local 
 assessments for street improvements, and sufficient has 
 been done in an attempt to comply therewith to give 
 the municipality jurisdiction of the subject in the given 
 case, subsequent irregularities, where no injustice is 
 shown, are immaterial in equity as against the duty of 
 the property owner to bear his just share of the ex- 
 pense of such improvement.^^'* Where there has been 
 a substantial compliance with statutory requisites in 
 
 611 Fifield V. Marinette County, 62 Wis. 532, 22 N. W. 705; Wis- 
 consin Central E. Co. v. Ashland County, 81 Wis. 10, 50 N. W. 937; 
 Kaehler v. Dobberpuhl, 56 Wis. 480, 14 N. W. 644. 
 
 612 Anderson v. Douglas County, 98 Wis. 393, 74 N. W. 109. 
 
 613 Crane v. City of Janesville, 20 Wis. 305. 
 
 614 Gleason v. Waukesha County, 103 Wis. 225, 79 N. W. 249; 
 Hennessy v. Douglas County, 99 Wis. 129, 74 N. W. 983; Wells v. 
 Western Paving etc. Co., 96 Wis. 116, 70 N. W. 1071.
 
 S 463 EQUITABLE KEMEDIES. 756 
 
 regard to the imposition and collection of special taxes 
 or legal assessments, and the complainant is unable to 
 show that any injustice has been done to him, equity 
 will afford him no relief against such taxes or assess- 
 ments.^^ ^ 
 
 Cloud on title is the ground of equitable jurisdiction, 
 as in cases of general taxation. A court of equity will 
 interfere to prevent a cloud on the plaintiff's title, 
 where his lands are threatened to be sold on a void tax 
 or assessment, whenever the defect complained of is 
 not merely formal, but is substantial and important, 
 and would not appear on the face of the tax deed.^'* 
 Equity will restrain a sale of land under a special as- 
 sessment that is void for want of authority in the city 
 council to make it. It is not necessary to show, as in 
 the case of general taxes, in order to obtain equitable 
 relief, that the assessment was not only invalid, but in- 
 equitable.^^ '^ 
 
 There is a plain ground of equity jurisdiction to set 
 aside the sale of lots made to enforce a void assessment 
 for the purpose of changing the grade of a street, when 
 it is found that the lots are greatly injured and ren- 
 
 615 Gleason v. Waukesha County, 103 Wis. 225, 79 N. W. 24!); 
 Hennessy v. Douglas County, 99 Wis. 129, 74 N. W. 983; Wells v. 
 Western Paving etc. Co., 96 Wis. 116, 70 N. W. 1071. 
 
 618 Mitchell V. City of Milwaukee, 18 Wis. 92, 97; Myrick v. 
 City of La Crosse, 17 Wis. 442; Jenkins v. Board of Supervisors 
 of Eock County, 15 Wis. 11. 
 
 617 Dietz V. City of Neenah, 91 Wis. 422, 64 N. W. 299, 65 N. 
 W. 500, distinguishing Hixon v. Oneida County, 82 Wis. 515, 52 
 N. W. 445. In the one case there is an antecedent duty or equi- 
 table burden against all property liable to taxation, and the power 
 to raise money to meet public necessities and obligations; while in 
 the case of the special assessment "the proceeding here initiated 
 was to create such a charge or duty, and the law under which the 
 common council acted was unconstitutional and void; so no duty 
 or charge whatever was created."
 
 757 ENJOINING TAXATION; WISCONSIN. { 463 
 
 dered less valuable by the change of grade.^^® And a 
 void assessment may be canceled, and proceedings to 
 collect it enjoined, although the proceedings have not 
 been carried so far as to make the tax a lien on the 
 plaintiff's lots; since the proceedings will necessarily 
 create a cloud on the plaintiff's title.®^" 
 
 Payment or Tender. — Special taxes levied for local 
 improvements are to be regarded as one of the constitu- 
 tional methods of taxing the citizen for the benefit of 
 the public, and any equitable rule which applies to 
 other constitutional methods must, with equal pro- 
 priety, be applied to it.^^*^ When the statutory requi- 
 sites to the assessment of a tax for a street improve- 
 ment upon abutting property are all complied with up 
 to the time of filing the estimates or specifications for 
 letting the work, — that is, when the assessment of bene- 
 fits has been in all respects legally made, so as to de- 
 termine a proper basis upon which to apportion the 
 cost of the improvement properly chargeable to abut- 
 ting property, — and the subsequent proceedings result 
 in charging such property an excessive amount for any 
 cause, the owner cannot wait until the improvement 
 is completed, and his property has received the full 
 benefit thereof, and then screen himself from the entire 
 tax because of the illegal excess. If such excess can 
 be determined by mere computation, or without proof, 
 failure to tender or offer to pay the balance before 
 suit will be fatal to any claim for costs, and failure to 
 plead an offer to pay fatal to the cause of action. If 
 
 618 Liebermann v. City of Milwaukee, 89 Wis. 336, 61 N. W. 1112. 
 
 619 Beaser v. City of Ashland, 89 Wis. 28, 61 N. W. 77. So the 
 iesue of a certificate to the contractor for work done may be re- 
 strained, the assessment being wholly invalid: Johnson v. City ot 
 Milwaukee, 40 Wis. 315, 327. 
 
 620 Mills V. Charleton, 29 Wis. 400, 418; Wels v. Western Paving 
 etc. Co., 96 Wis. 116, 70 N. W. 1071.
 
 { 464 EQUITABLE REMEDIES. 758 
 
 such excess cannot be determined by computation, and 
 without proof, the court should determine the same, 
 as near as practicable, to a reasonable certainty, from 
 the evidence produced on the trial, and require the pay- 
 ment of the balance as terms of granting relief against 
 such excess,*'^^ The rule is not applied when the as- 
 sessment of benefits requisite to jurisdiction to impose 
 any tax on the abutting property for the improvement 
 was not made,*'^^ as when the cost of the improvement 
 is assessed on the abutting property in proportion to 
 the front footage, without regard to the benefit secured 
 thereby, as required by statute; since the defect goes 
 to the very foundation of the assessment, and makes it 
 necessarily unequal. ^^^ 
 
 § 464. Wyoming. — The statutes in this state provide 
 for the remedy of injunction to restrain the illegal 
 levy or collection of taxes.^^* This relief "will not be 
 allowed on account of the mere failure of the taxing 
 officers to fulfill the requirements of the statute in the 
 levy and assessment, but it must appear that the tax 
 itself is inequitable for the reason that the property 
 
 621 Wells V. Western Paving etc. Co., 96 Wis. 116, 70 N. W. 
 1071. See, also, Yates v. City of Milwaukee, 92 Wis. 352, 66 N. 
 W. 248; Meggett v. City of Eau Claire, 81 Wis. 326, 51 N. W. 
 566; Cook v. City of Eacine, 49 Wis. 243, 5 N. W. 352 (the sum 
 which plaintiff ought to pay being definitely ascertained by the 
 proofs, judgment directed restraining collection of the assessment 
 in case plaintiff, within a specified time, shall pay the proper 
 amount, with interest); Mills v. Charleton, 29 Wis. 400, 418, 9 Am, 
 Eep. 578 (excess being clearly ascertainable by computation its 
 collection restrained only on condition that the proper amount is 
 paid). 
 
 622 See Hayes v. Douglas County, 92 Wis. 429, 53 Am. St. Eep. 
 926, 65 N. W. 482, 31 L. R. A. 213. 
 
 «23 Hayes v. Douglas County, supra, 
 624 Eev. Stats. 1899, § 4172.
 
 759 ENJOINING TAXATION, WYOMING. | 464 
 
 was not taxable, or that it was not the property of the 
 complainant, or the like."*^^^ 
 
 A mere excessive assessment and overvaluation by a 
 board of equalization will not be revised by the court, 
 in the absence of a showin*^- of fraud,^^® and such errors 
 as assessment of land in the wrong district, or mistakes 
 in description or levy en masse on separate parcels, 
 are not a ground for injunction, when the owner made 
 no effort to have them corrected by the board of equal- 
 ization.®^' 
 
 625 Horton v. Driskell (Wyo.), 77 Pac. 354. 
 
 626 Eicketts V. Crewdson (Wyo.), 79 Pac. 1042. 
 827 Id.
 
 § 465 EQUITABLE REMEDIES. 760 
 
 CHAPTER XX. 
 
 INJUNCTION AGAINST EXERCISE OF THE POWER 
 OF EMINENT DOMAIN. 
 
 ANALYSIS. 
 
 § 4G5. General principle. 
 
 § 466. No injunction against prosecution of condemnation pro- 
 ceedings. 
 §§ 467-470. Eailroads in streets and highways, 
 
 § 468. Same — Fee of street in abutting owner. 
 
 § 469. Same— Fee of street in municipality. 
 
 § 470. Same; New York rule; Elevated Railroad cases. 
 
 § 471. Changing grade of streets; other uses of streets; va- 
 cating streets. 
 
 § 472. Acquiescence. 
 
 § 473. Assessment of damages by the court, with injunction 
 as alternative to their payment. 
 
 § 4G5. General Principle. — It has come to be generally 
 recoguized that injunction against the unlawful or im- 
 proper exercise of the power of eminent domain con- 
 stitutes an independent head of equity jurisdiction, un- 
 controlled in its exercise by the principles which regu- 
 late injunctive relief against trespass. The constitu- 
 tional guaranty that "property shall not be taken for 
 public use without just compensation" by agents of the 
 state to whom this power is delegated, is deemed to es- 
 tablish a right of so high and sacred a character that 
 any threatened infringement of the right should be re- 
 strained, without consideration of the inadequacy of 
 the legal remedy. Injunction, in this class of cases, is 
 a matter of strict right, not of equitable discretion; 
 although it is true that special equities, such as acqui- 
 escence or estoppel, may constitute a defense. It is 
 eminently true, in tjiis connection, that "judges have
 
 761 INJUNCTION; EMINENT DOMAIN. § 465 
 
 been brought to see, and to acknowledge, contrary to 
 the opinion of Chancellor Kent, that the common-law 
 theory of not interfering with persons until they shall 
 have actually committed a wrong is fundamentally er- 
 roneous; and that a remedy which prevents a threat- 
 ened wrong is, in its essential nature, better than a 
 remedy which permits a wrong to be done, and then 
 attempts to pay for it by the pecuniary damages which 
 a jury may assess."^ The fundamental principle now 
 generally accepted is well expounded in the following 
 extract from the opinion of a most able court, and is 
 further elucidated in the excerpts in the following note : 
 "The principle upon which a court of equity pro- 
 ceeds, in interfering to prevent bodies corporate having 
 compulsory power to enter upon, take, and appropri- 
 ate for their own uses the lands of others, differs ma- 
 terially from the principle upon which it intervenes to 
 prevent the commission or continuance of waste, or of 
 nuisances, or of trespasses, when only private rights, 
 or the acts of persons, natural or artificial, not having 
 such powers, are involved. In the latter class of cases, 
 if the right be strictly legal, and there is no relation of 
 privity between the parties, it is of the essence of the 
 jurisdiction of the court that a case of irreparable in- 
 jury should be shown — a case for which the courts of 
 
 law do not furnish an adequate remedy It is 
 
 most essential to the preservation of the rights of pri- 
 vate property, to the protection of the citizen, and to 
 the preservation of the best interests of the community, 
 that all who are invested with the right of eminent do- 
 main, with the extraordinary power of depriving per- 
 sons, natural or artificial, without their consent, of 
 their property, and its possession and enjoyment, 
 
 1 3 Pom. Eq. Jur., § 1357, quoted and applied in a case of this 
 character, Payne v. Kansas & A. Val. E. Co., 46 Fed. 546, 553.
 
 § 465 EQUITABLE REMEDIES. 762 
 
 should be kept in the strict line of the authority with 
 which they are clothed, and compelled to implicit obe- 
 dience to the mandates of the constitution. A court 
 of equity will intervene to keep them within the line of 
 authority, and to compel obedience to the constitution, 
 because of the necessity that they should be kept within 
 control, and in subjection to the law, rather than upon 
 the theory that they are trespassers, or that the injury 
 which they are inflicting is irreparable. The owner of 
 the land has the right to say that, unless they keep 
 within the strict limits prescribed by law, they shall 
 not disturb him in the possession and enjoyment of his 
 property. The power is so capable of abuse, and those 
 who are invested with it are often so prone to its arbi- 
 trary and oppressive exercise, that a court of equity, 
 without inquiring whether there is irreparable injury, 
 or injury not susceptible of adequate redress by legal 
 remedies, will intervene for the protection of the 
 owner. "^ 
 
 2 East & West E. Co. of Alabama v. East Tennessee, V. & d. 
 E. Co., 75 Ala. 280, by Brickell, C. J.; Birmingham Traction Co. v. 
 Birmingham Ry. & Elec. Co., 119 Ala. 129, 24 South. 368; City Coun- 
 cil of Montgomery v. Lemle, 121 Ala. 609, 25 South. 919; Mobile & 
 M. Ey. Co. V. Alabama Midland Ey. Co., 123 Ala. 145, 26 South. 
 324; Western E. of Alabama v. Alabama G. T. E. Co., 96 Ala. 
 272, 11 South. 483, 17 L. E. A. 474. "Whenever the power of emi- 
 nent domain is about to be exercised without compliance with the 
 conditions upon which the authority for its exercise depends, courts 
 of equity are not curious in analyzing the grounds upon which they 
 rest their interposition. Equitable jurisdiction may be invoked in 
 view of the inadequacy of the legal remedy where the injury is 
 destructive or of a continuous character, or irrej^iarable in its na- 
 ture; and the appropriation of private property to public use, under 
 color of law, but in fact without authority, is such an invasion of 
 private rights as may be assumed to be essentially irremediable, 
 if, indeed, relief may not be awarded ex debito justitiae"; Fuller, 
 C. J., in D. M. Osborne & Co. v. Missouri Pac. E. Co., 147 U. S. 248, 
 13 Sup. Ct. 299, 37 L. ed. 155. "There are numerous cases in this 
 eourt wherein equity has interfered by injunction to restrain road
 
 763 INJUNCTION; EMINENT DOMAIN. § 465 
 
 While the above seems the sounder principle on which 
 to base injunctive relief in this class of cases, many 
 courts are content to rest it on the general doctrines 
 
 supervisors and others from removing or interfering with fences, 
 hedges, watercourses, and the like, in the discharge of their official 
 duty. Belief in these cases was not based upon the grounds of the 
 irreparable character of the injury and the insolvency of the de- 
 fendants [citing Bills v. Belknap, 36 Iowa, 583; Grant v. Crow, 
 47 Iowa, 632; McCord v. High, 24 Iowa, 336; Quihton v. Burton, 61 
 
 Iowa, 471, 16 N. W. 569] Justice and sound public policy 
 
 demand that for the protection of both the landowner and the 
 supervisor the question of the legality of the supervisor's proposed 
 act should be determined before the injury should be done to the 
 farm, and the liability of the latter should be incurred. The law 
 provides a remedy for the settlement of the controversy between 
 the parties, in advance of the injury to the one and the liability 
 incurred by the other, by an action in chancery, wherein an in- 
 junction will suspend the act of the supervisor until the question 
 of law and facts involved in the controversy are judicially settled": 
 Bolton V. McShane, 67 Iowa, 207, 25 N. W. 135, by Beck, Ch. J. 
 "It is not disputed that injunction is the proper remedy against 
 the appropriation of land for the use of a public corporation which 
 has not acquired a right to the proposed use either by purchase or 
 by condemnation; and, contrary to the general rule that equitable 
 relief is granted only when equitable considerations require it, the 
 injunction in such cases may be, and perhaps more frequently than 
 otherwise is, sought in vindication of a purely legal right; and, if 
 the technical right and a threatened infraction of it be established, 
 the relief will be granted without inquiry into the general equities 
 of the case. By this we do not mean that a specific equity, like 
 an estoppel, may not be a defense to such a suit; but, if a complete 
 defense be not shown, the court will not refuse the relief on grounds 
 of equitable discretion, as it might do in a suit for specific per- 
 formance or rescission or other cause involving no special consti- 
 tutional or statutory right of such a nature as to be capable of 
 vindication only by injunction": Bass v. Metropolitan West Side 
 El. E. Co., 82 Fed. 857, 27 C. C. A. 147, 39 L. E. A. 711, by Woods, 
 Cir. J. "In cases of this character courts of equity have acted on 
 broader principles [than in ordinary casesj, and have adopted as a 
 rule that an injunction will be granted to prevent a railway com- 
 pany from exceeding the power granted in their charter The 
 
 courts do not require when the effort is manifested by a railway 
 company to wrongfully appropriate private property, or force their 
 structures to places not authorized, that there should be a want of
 
 § 465 EQUITABLE EEMEDIES. 76t 
 
 concerning irrepar.able injury of a permanent character, 
 going to the destruction of the inheritance.^ On which- 
 ever ground the jurisdiction is based, the rule is now 
 
 remedy at law": Cobb v. Illinois & St. L. E. & C. Co., 68 111. 233. 
 See, also, in support of the view that the question of irreparable 
 injury is not involved, but that injunction is a matter of right: 
 Eidemiller v. Wyandotte City, 2 Dill. 376, Fed. Cas. No. 4313, by 
 Dillon, Cir. J., as reported in the Federal Cases; observations of 
 Brewer, J., in McElroy v. Kansas City, 21 Fed. 257, quoted post, § 
 471; Sidener v. Norristown Turnpike Co., 23 Ind. 623; Western 
 Maryland Ey. Co. v. Owings, 15 Md. 199, 74 Am. Dec. 563 ("the 
 nature of the damage complained of, whether irreparable or not, 
 has nothing to do with the question"); Commonwealth v. Pitts- 
 burgh & C. E. Co., 24 Pa. St, 159, 62 Am. Dec. 342; Bird v. Wilming- 
 ton & M. E. Co., 8 Eich. Eq. (S. C.) 46, 64 Am. Dec. 739; Searle v. 
 City of Lead, 10 S. D. 312, 73 N. W. 101, 39 L. E. A. 345; Travis 
 County V. Trogdon (Tex. Civ. App.), 29 S. W. 46; Hodges v. Sea- 
 board & E. E. Co., 88 Va. 653, 14 S. E. 380; Manchester Cotton 
 Mills V. Town of Manchester, 25 Gratt. 828; Foley v. Doddridge 
 County Court, 54 W. Va. 16, 46 S. E. 246; Brown v. City of Seattle, 
 5 Wash. 35, 31 Pac. 313, 32 Pac, 214, 18 L. E. A. 161; Bohlman v. 
 Green Bay & M. E. Co., 40 Wis. 157; Stolze v. Milwaukee & L. W. 
 E. Co., 104 Wis. 47, 80 N. W. 68; Lewis, Eminent Domain, § 632. 
 
 Where, as is usual in recent state constitutions, the provision is 
 that "property shall not be taken for public use, unless compensa- 
 tion is first made or tendered," it is obvious that injunction is the 
 only remedy by which the provision can be enforced according to its 
 terms: See Searle v. City of Lead, 10 S. D. 312, 73 N. W. 101, 39 
 L. E. A. 345; Travis County v. Trogdon (Tex. Civ. App.), 29 S. W. 
 46; Brown v. City of Seattle, 5 Wash. 35, 31 Pac. 313, 32 Pac. 214, 
 18 L. E. A. 161. 
 
 3 See Bonaparte v. Camden & A. E. Co., 1 Baldw. 218, Fed. Cas. 
 No. 1617; Eidemiller v. Wyandotte City, 2 Dill. 376, Fed. Cas. No. 
 4313 (as reported in Dillon's Eeports); Payne v. Kansas & A. Val. E, 
 Co., 46 Fed. 546; Ex parte Martin, 13 Ark. (8 Eng.) 198, 58 Am. Dec. 
 321; Commissioners v. Durham, 43 111. 86; City of Peoria v. Johnston, 
 56 111. 45; Lowery v. City of Pekin, 186 111. 387, 57 N. E. 1062, 51 L. E. 
 A. 301; Erwin v. Fulk, 94 Ind. 235; City of New Albany v. White, 100 
 Ind. 206; Kern v. Isgrigg, 132 Ind. 4, 31 N. E. 455 (contempt proceed- 
 ings not an adequate remedy); Welton v. Dickson, 38 Neb. 767, 41 
 Am. St. Eep. 771, 57 N. W. 559, 22 L. E. A. 496; Bigler's Exr. v. 
 Penn. Canal Co., 177 Pa. St. 28, 35 Atl. 112; post, chapter XXIII, 
 "Trespass," §§ 495, 499. "The injury complained of as impending 
 over his property is, its permanent occupation and appropriation to a
 
 765 INJUNCTION; EMINENT DOMAIN. § 465 
 
 almost universal that "an entry upon private property 
 under color of the eminent domain power will be en- 
 joined until the right to make such entry has been per- 
 fected by a full compliance with the constitution and 
 the laws," whether such compliance is lacking either 
 through failure to pay, tender, or deposit just com- 
 pensation as required by law, or through invalidity of 
 the condemnation proceedings, or of the statute under 
 which the right to enter is claimed.* 
 
 continuing public use, which requires the divestiture of his whole right, 
 its transfer to the company in full property, and his inheritance to be 
 destroyed as effectively as if he had never been its proprietor. No dam- 
 ages can restore him to his former condition, its value to him is not 
 money which money can replace, nor can there be any specific compen- 
 sation or equivalent; his damages are not pecuniary (^vide, 7 Johns. 
 731), his objects in making his establishment were not profit, but 
 repose, seclusion, and a resting place for himself and family. If 
 these objects are about to be defeated, if his rights of property are 
 about to be destroyed, without the authority of law; or if lawless 
 danger impends over them by persons acting under color of law, when 
 the law gives them no power, or when it is abused, misapplied, ex- 
 ceeded, or not strictly pursued, and the act impending would subject 
 the party committing it to damages in a court of equity for a tres- 
 pass, a court of equity will enjoin its commission": Bonaparte v. Cam- 
 den & A. E. Co., 1 Baldw. 218, Fed. Cas. No. 1617, per Baldwin, J. 
 
 4 Lewis, Eminent Domain, § 632, and cases cited. In addition to 
 the cases cited in the preceding notes, see St. Louis & S, F. E. Co. 
 V. Southwestern T. & T. Co., 121 Fed. 276, 58 C. C. A. 198; Midland 
 Ey. Co. V. Smith, 113 Ind. 233, 15 N. E. 256; Hudson v. Voreis, 134 
 Ind. 602, 34 N. E. 503 (proceedings for laying out highway invalid); 
 Town of Hardinsburg v. Cravens, 148 Ind. 1, 47 N. E. 153 (taking land 
 for street without compensation or notice) ; City of Fort Wayne v. 
 Fort Wayne & T. E. Co. (Ind.), 48 N. E. 342 (same); State ex rel. 
 Cotting V. Sommerville, 104 La. 74, 28 South. 977 (injunction not dis- 
 solved upon giving bond); Spurlock v. Dorman, 182 Mo. 242, 81 S. 
 W. 412; Mayor of Frederick v. Groshon, 30 Md. 436, 96 Am. 
 Dec. 591; Kime v. Cass County (Neb.), 99 N. W. 546 (tak- 
 ing land for street); Folley v. Passaic,, 26 N. J. Eq. 216; 
 Stratford v. City of Greenboro, 124 N. C. 127, 32 S. E. 394 (appro- 
 priating property for private use by municipality) ; Ft. Worth & 
 R. G. E. Co. V. Jennings, 76 Tex. 373, 13 S. W. 270, 8 L. E. A. 180;
 
 § 465 EQUITABLE EEMEDIES. 7C6 
 
 Cummings v. Kendall County, 7 Tex. Civ. App. 164, 26 S. W. 439 
 (opening road; no notice, and no order allowing damages); City of San 
 Antonio v. Sullivan, 23 Tex. Civ. App. 658, 57 S. W. 45 (unauthorized 
 changes in location of street after damages assessed) ; Olson v. City 
 of Seattle, 30 Wash. 687, 71 Pac. 201 (dictum); Boughner v. Town of 
 Clarksburg, 15 W. Va. 394; Wenger v. Fisher (W. Va.), 46 S. E. 695; 
 Baier v. Hosraer, 107 Wis. 380, 83 N. W. 645. 
 
 A few cases appear to be cvntra to the weight of authority or de- 
 pend on special facts: Atchison, T. & S. F. E. Co. v. Meyer, 62 Kan. 
 Q?Q), 64 Pae. 597 (no injunction against improvement of roadbed 
 of railroad, when injury slight and capable of compensation) ; Jersey 
 City v, Gardner, 33 N. J. Eq. 622 (no injunction against use for 
 street of land condemned for street purjjoses, after damages assessed; 
 remedy at law adequate); Thomas v. Grand View Beach E. Co., 76 
 Hun, 601, 28 N. Y. Supp. 201 (operation of railroad already con- 
 structed not restrained, when ejectment an adequate remedy) ; Ealeigh 
 & W. Ey. Co. V. Glendon etc. Co., 112 N. C. 661, 17 S. E. 77; Welling- 
 ton & P. E. Co. v. Cashie & C. E. & L. Co., 116 N. C. 924, 20 S. E. 
 964; Cherry v. Matthews, 25 Or. 484, 36 Pac. 529 (no injunction where 
 constitution does not require prepayment of damages); Delaware 
 County's Appeal, 119 Pa. St. 159, 13 Atl. 62 (power of taxation is 
 sufficient security when property is taken or damaged by a municipal 
 corporation); Colby' v. City of Spokane, 12 Wash. 690, 42 Pac. 112; 
 Eockwell V. Bowers, 88 Iowa, 88, 55 N. W. 1 (adequate remedy by 
 certiorari to review proceedings for condemnation of street). That 
 injunction will not issue where the defendant's title is uncertain 
 or in dispute, see Troy & B. E. Co. v. Boston, H. T. & W. Ey. Co., 
 86 N. Y. 107; Kanawha G. T. & E. E. Co. v. Glen Jean, L. L. & D. 
 W. E. Co., 45 W. Va. 119, 30 S. E. 86; but that mere denial of plain- 
 tiff's title is not sufficient to prevent relief, see Birmingham Trac- 
 tion Co. V. Birmingham E. & E. Co., 119 Ala. 129, 24 South. 368; 
 Mobile & M. Ey. Co. v. Alabama Midland Ey. Co., 123 Ala. 145, 26 
 South. 324; Lewis, Eminent Domain, § 633. The last four cases eon- 
 cern the condemnation of a right of way across the property of a rival 
 railroad. That the owner of an easement for the use of water for 
 mill purposes cannot restrain the taking of water by a municipality 
 from the mill pond, if he is not the owner of the land covered by the 
 pond, unless his easement is materially impaired, see Bass v. City of 
 Fort Wayne, 121 Ind. 389, 23 N. E. 259. 
 
 The giving of a sufficient bond to pay damages has been held 
 to dispense with the necessity of a preliminary injunction: Davis v. 
 Port Arthur Channel & Dock Co., 87 Fed. 512, 31 C. C. A. 99. 
 
 That the purchase of the land, pending condemnation proceedings, 
 b}- the president of a rival railroad, for the purpose of delay and 
 obstruction, may defeat the right to an injunction, see Piedmont
 
 767 INJUNCTION; EMIlSiENT DOMAIN. § 465 
 
 It appears that the entry may be enjoined pending 
 appeal from the condemnation proceedings,^ unless the 
 statute declares that the right to enter is not suspended 
 by appeal, in which case the constitutional guaranty is 
 sufficiently satisfied by the award of damages by the 
 inferior tribunal, and the payment, tender, or deposit 
 of the same.^ 
 
 The above cases illustrate the principle as applied to 
 railways, streets and highways. Illustrations of its 
 application to takings for other public uses are ap- 
 pended in the note.'^ 
 
 & C. Ey. Co. V. Speelman, 67 Md. 260, 10 Atl. 77, 293; Ocean City 
 
 B. Co. V. Bray, 55 N. J. Eq. 101, 35 Atl. 839; Kanawha, G. T. & £. 
 R. Co. V. Glen Jean, L. L. & D. W. E. Co., 45 W. Va. 119, 30 S. E. 86. 
 
 The eminent domain power should be distinguished from the police 
 power; the exercise of the latter by a city in keeping open a street 
 which had been used by the public for many years does not present 
 a proper case for an injunction at the suit of one claiming to own the 
 land comprised within the street: City of Chicago v. Wright, 69 III. 
 318. 
 
 5 Eidemiller v. Wyandotte City, 2 Dill. 376, Fed. Cas. No. 4313; 
 City of Terra Haute v. Farmers' Loan & T. Co., 99 Fed. 838, 40 C. 
 
 C. A. 117 (where fraud or failure to comply with statutory require- 
 ments); City of Kansas v. Kansas Pac. Ry. Co., 18 Kan. 331; Travis 
 County V, Tragdon (Tex. Civ. App.), 29 S. W. 46. 
 
 6 Bauchman v. Heinselman, 180 111. 251, 54 N. E. 313; Central 
 Branch U. P. E. Co. v. Atchison T. & S. F. E. Co., 28 Kan. 463; 
 Chicago & A, E. Co. v. Maddox, 92 Mo. 469, 4 S. W. 417; Shoppert 
 V. Martin, 137 Mo. 455, 38 S. W, 967 (no injunction where owner 
 refuses to prosecute appeal); Lionbergcr v. Pelton, 62 Meb. 252, 86 
 N. W. 1067. 
 
 7 An injunction will issue when private property is about to be 
 taken without compensation for the following purposes: For a ditch — 
 McGhee Irr. Ditch Co. v. Hudson, 85 Tex. 587, 22 S. W. 398; for a 
 reservoir— Gardner v. Village of Newburgh, 2 Johns. Ch. 162, 7 Am. 
 Dec. 526; for a school-house — Church v. Joint School District, 55 
 Wis. 399, 13 N. W. 272. It is proper when an attempt is made, 
 without compensation, to flood land — Wilmington Water Power Co. 
 v. Evans, 166 111. 548, 46 N. E. 1083; or to build a pier in a mill- 
 race — McMillian v. Lauer (Sup. Ct.), 24 N. Y. Supp. 951. lakewise, 
 it will issue where a city, without compensation, discharges surface
 
 § 466 EQUITABLE EEMEDIES. 768 
 
 § 466. No Injunction Against Prosecution of Condemna- 
 tion Proceedings. — It is to be observed that where in- 
 junction is granted against the exercise of the power 
 of eminent domain, the entry upon or appropriation 
 of the plaintiff's land is the specific act enjoined. No 
 injunction lies against the prosecution of condemna- 
 tion proceedings when the matter which is set up as a 
 ground for injunction may be urged as a defense in 
 such proceedings.^ 
 
 water at a certain point in such a manner as to make a channel 
 through plaintiff's land: Miller v. Morristown, 47 N. J. Eq. 62, 20 
 Atl. 61. When property has once been taken for public use, it can- 
 not be taken again, unless there is an express authorization. A pre- 
 liminary injunction will issue to prevent a city from taking rail- 
 road property for street purposes until it can be determined whether 
 the two uses can exist together: City Council of Augusta v. Georgia 
 R. & B. Co., 98 Ga. 161, 26 S. E. 499. An injunction will issue 
 against a taking for an unauthorized use: Bigler's Exr. v. Penn. Coal 
 Co., 177 Pa. St. 28, 35 Atl. 112, 38 Wkly. Not. Cas. 408. 
 
 8 See Lewis, Eminent Domain, § 646, and cases cited; Eureka & 
 K. E. R. Co. V. Cal. & N. Ry. Co., 103 Fed. 897, 902 (proceedings 
 by two rival railroads to condemn the same land; procedure provided 
 by statute); Black Hills & N. W. R. Co. v. Tacoma Mill Co., 129 
 Fed. 312, 63 C. C. A. 544; St. Louis & S. F. R. Co, v. Southwestern 
 T. & T. Co., 121 Fed. 276, 58 C. C. A. 198; Birmingham Ry. & Elec. 
 Co. V. Birmingham Traction Co., 121 Ala. 475, 25 South. 777 (no 
 injunction, though the court in which the proceedings are pending 
 haa no jurisdiction; adequate remedy by appeal or prohibition, etc.); 
 Winkler v. Winkler, 40 111. 179; East St. Louis Connecting R. Co. v. 
 East St. Louis Union E. Co., 108 111. 265 (no injunction against 
 rival railroad condemning tracks for crossing) ; Chicago & N. W. Ry. 
 Co. V. City of Chicago, 151 111. 348, 37 N. E. 842 (question of con- 
 demning for street property already taken for public use); Smith 
 V. Goodknight, 121 Ind. 312, 23 N. E. 148; Boyd v. Logansport, R. 
 & N. T. Co., 161 Ind. 587, 69 N. E. 398; Waterloo Water Co. v. 
 Hoxie, 89 Iowa, 317, 56 N. W. 499 (question of condemning property 
 already appropriated to public use) ; Western Maryland R. Co. v. 
 Patterson, 37 Md. 125; Detroit, G. H. & M. Ry. Co. v. City of De- 
 troit, 91 Mich. 444, 52 N. W. 52; National Docks R. Co. v. Central 
 E. Co., 32 N. J. Eq. 755, 767; Kip v. New York & H. R. Co., 6 Hun 
 (N. Y.), 2i (question of constitutionality of statute authorizing con-
 
 769 INJUNCTION; EMINENT DOMAIN. { 467 
 
 § 467. Railroads in Streets and Highways. — In approach- 
 ing a consideration of the vexed subject of the abutting 
 owner's remedy in equity against railroads of various 
 kinds in streets, it is necessary first to lay to one side 
 two classes of cases: (1) Those holding that a railroad 
 of some particular sort is a legitimate and proper use 
 of the street or highway, and does not create an addi- 
 tional burden or servitude. This is generally held of 
 horse and electric railroads, while the contrary, at the 
 present day, is generally held of steam railroads. If tha 
 particular use is held to be a proper and legitimate 
 one, the abutting owner has no substantive right to be 
 protected by an injunction.* (2) Cases where the rail- 
 
 demnation) ; Grafton & B. E. Co. v. Buckhannon & N. R. Co. (W. 
 Va.), 49 S. E. 32. See, also, Morris & E. E. Co. v. Hoboken & M. E. 
 Co. (N. J. Eq.), 59 Atl. 332. See, however, Colby v. Village of La 
 Grange, 65 Fed. 554, where it seems to be held that the proceed- 
 ings may be enjoined when they are brought for a wholly unauthor- 
 ized purpose. See, also, Eiley v. Charleston Union Station Co., 67 
 S. C. 84, 45 S, E. 149; Chestatee Pyrites Co, v. Cavenders Creek G. 
 M. Co., 119 Ga. 354, 100 Am. St. Eep. 174, 46 S. E. 422. 
 
 In Schneider v. City of Eochester, 160 N. Y. 165, 54 N. E. 721, re- 
 versing 33 App. Div. 458, 53 N. Y. Supp. 931, the city, being dis- 
 satisfied with the award of commissioners in proceedings to open a 
 street, sought to apply for the appointment of new commissioners; 
 this was enjoined, at the suit of the property owner. The latter 
 had no remedy by appeal from the order of appointment, and thus 
 might be subjected to all the expense and trouble of defending her 
 title or securing her rights before numerous commissioners successively 
 appointed. 
 
 9 Cases holding steam railroad not an "additional servitude"; 
 Moses V. Pittsburgh, Pt. "Wayne & C. R. Co., 21 111. 516 (since over- 
 ruled); Lexington & O. E. E. Co. v. Applegate, 8 Dana (Ky.), 289, 
 33 Am. Dec. 497; Henry Gaus & Sons Mfg. Co. v. St. Louis, K. & N. 
 W. Ey. Co., 113 Mo. 308, 20 S. W. 658, 18 L. E. A. 339; Decker v. 
 Evansville Suburban & N. Ey. Co., 133 Ind. 493, 33 N. E. 349. See 
 Dillon, Mun. Corp. (4th ed.), § 725 (576). 
 
 Cases holding horse or electric railway constructed in the usual 
 manner not an additional servitude: Chicago, B. & Q. R. Co. v. West 
 Chicago St, E. Co., 156 111. 255, 40 N. E. 1008, 29 L. E, A, 485; Snyder 
 
 Equitable Remedies, Vol. I — 49
 
 S 4G7 EQUITABLE REMEDIES. 7T0 
 
 road is constructed without proper authority, and the 
 question, therefore, is one, not of restraining the exer- 
 cise of the eminent domain power, but of the remedy 
 of the abutting owner, as one specially injured, to re- 
 strain a public nuisance.^^ 
 
 Granting that the railroad whose construction or op- 
 eration is sought to be enjoined creates an "additional 
 servitude" in the street, it is found that the abutting 
 owner's remedial right to an injunction, or even hia 
 right to any remedy whatever, is, in many jurisdictions, 
 made to depend upon the fact of his ownership of the 
 fee of the land included in the street If the fee is in 
 the abutting owner, affected only by an easement in 
 the public for legitimate street purposes, a permanent 
 diversion of the street to other purposes, authorized by 
 the proper public authority, constitutes a "taking" of 
 such owner's property which will readily be enjoined 
 if just compensation is not provided. The case is oth- 
 erwise if the ownership of the street is in the munici- 
 pality. This rule has been most strongly reprobated 
 
 V, Ft. Madison St. Ry. Co., 105 Iowa, 28-i, 75 N. W. 179, 41 L. R. A. 
 345; Louisville Bagging Mfg. Co. v. Central Pass. Ry. Co., 95 Ky. 
 50, 44 Am. St. Rep. 203, 2.3 S. W. 592; Green v. City & Suburban Ry. 
 Co., 78 Md. 294, 44 Am. St. Rep. 288, 28 Atl. 626; Poole v. Falls 
 Road Elec. Ry. Co., 88 Md. 533, 41 Atl. 1069; Nagel v. Lindell Ry. 
 Co., 167 Mo. 89, 66 S. W. 1090; Hinchman v. Paterson Horse R. Co., 
 17 N. J. Eq. (2 C. E. Greene) 75, 86 Am. Dee. 252; Morris & E. R. 
 Co. V. Newark Pass. Ry. Co., 51 N. J. Eq. 379, 29 Atl. 184; West 
 Jersey R. Co. v. Camden, G. & W. Ry. Co., 52 N. J. Eq. 1, 29 Atl. 
 423; Budd v. Camden Horse R. Co., 61 N. J. Eq. 543, 48 Atl. 1028; 
 Aycock V. San Antonio Brewing Assn., 26 Tex. Civ. App. 341, 63 S. 
 W. 953 (street railway for transporting freight); Birmingham Trac- 
 tion Co. V. Birmingham Ry. & Elec. Co., 119 Ala. 137, 24 South. 502, 
 43 L. R. A. 233, and exhaustive citation of authorities; Dillon, Mun. 
 Corp. (4th ed.), §§ 722, 723. 
 
 10 See, for example, Garnet v. Jacksonville, St. A. «Sb H. R. R. Co., 
 20 Fla. 889; Birmingham Traction Co. v. Birmingham Ry. & Elec. Co., 
 119 Ala. 137, 24 South. 502, 43 L. R. A. 233. Post, chapter XXIV, 
 Public Nuisance.
 
 771 INJUNCTION; EMINENT DOMAIN. S 468 
 
 by eminent writers, as making the owner's remedial or 
 substantive rights depend on the merest technicality; 
 and it was thought that the departure from the rule by 
 the courts of New York in the Elevated Railroad cases 
 marked a period of transition, and pointed to the even- 
 tual overthrow of the rule. It can hardly be said that 
 that result has yet been reached. 
 
 § 468. Same; Fee of Street in Abutting Owner. — It is 
 the almost universal rule, that the owner of land abut- 
 ting upon a public street, who owns the fee in such 
 street subject to the public easement, can enjoin the 
 laying of tracks, and the use and occupation of such 
 street by a steam railroad company under authority 
 of a municipal ordinance, in such manner as to create 
 an additional servitude upon the street, where no com- 
 pensation to such owner has been ascertained or made.^^ 
 
 11 Bond V. Pennsylvania Co., 171 111. 508, 49 N. E. 545, reversing 
 69 111. App. 507; O'Connell v. Chicago Terminal Transfer Co., 184 
 111. 308, 56 N. E. 355; Kock Island & P. E. Co. v. Johnson, 204 111. 
 488, 68 N. E. 549 (injunction against laying second track); O'Con- 
 nor V. Southern Pac. R. Co., 122 Cal. 681, 55 Pac. 688; Schurmeier 
 V. St. Paul & P. E. Co., 10 Minn. 82 (Gil. 59), 88 Am. Dec. 59; Lewis 
 V. Pennsylvania R. Co. (N, J. Eq.), 33 Atl. 932; Williams v. New York 
 Cent. E. Co., 16 N. Y. 97, 69 Am. Dec. 651; Henderson v. New York 
 Central E. Co., 78 N. Y. 423; Hodges v. Seaboard & E. E. Co., 88 
 Va. 653, 14 S. E. 380; Ford v. Chicago & N. W. E. Co., 14 Wis. 609, 
 80 Am. Dec. 791; Coatsworth v. Lehigh Val. E. Co., 156 N. Y. 451, 
 51 N. E. 301; Mattlage v. New York El. E. Co., 35 N. Y. Supp. 704, 
 14 Misc. Eep. 291, affirmed without opinion, 157 N. Y. 708, 52 N. E. 
 1124; and see cases cited in Lewis, Eminent Domain, § 635, note 2. 
 In the few cases, chiefly in New York, where a horse or electric rail- 
 way, or a structure used in operating the latter, is held to be an ad- 
 ditional servitude, injunction at the suit of the abutting owner in 
 whom was the fee of the street or highway was held to be a proper 
 remedy: See Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 
 146, 36 Atl. 1107, able concurring opinion of Hamersley, J.; Snvder 
 V. Fort Madison St. Ey. Co., 105 Iowa, 284, 75 N. W. 179, 41 L. E. A. 
 345 (injunction against unnecessary electric railway pole placed in 
 front of plaintiff's residence to annoy); Craig v. Rochester etc. E.
 
 fi 468 EQUITABLE REMEDIES. 772 
 
 In most of the cases no distinction appears to be made 
 between the owner's remedial right to an injunction 
 against a taking without compensation, when his land 
 is thus affected with a public easement, and when he 
 has the full beneficial use of the land. In others, the 
 question of injunction is treated as one addressed to 
 the discretion of the court, which should balance the 
 relative inconvenience and injury to the parties and 
 the iJublic likely to result from granting or withhold- 
 ing the writ.^^ In a few jurisdictions the courts refuse 
 
 E. Co., 39 N. Y. 404; Spofford v. E. E. Co., 15 Daly, 162, 4 N. Y. 
 bupp. 388j Peck v. Scheuectady E. Co., 170 N. Y. 298, 63 N. E. 357 
 (subject re-examined in light of all the authorities, and the Craig case 
 followed, with much reluctance, by a divided court) ; Dempster v. 
 United Traction Co., 205 Pa. St. 70, 54 Atl. 501; Lange v. La 
 Crosse & E. E. Co., 118 Wis. 558, 95 N. W. 952. 
 
 It has been held that an abutting owner who owns the fee to the 
 center of the street cannot enjoin the construction of a railroad on 
 the oi>posite side of the street, because none of his property is taken: 
 North Pennsylvania E. Co. v. Inland Traction Co., 205 Pa. St. 379, 
 55 Atl. 774. 
 
 Where telephone and telegraph poles are held to impose an addi- 
 tional servitude, an abutting owner who owns the fee in the street 
 may enjoin their erection until compensation is made: Donovan v. 
 Allert, 11 N. D. 289, 95 Am. St. Eep. 720, 91 N. W. 441, 58 L. E. A. 
 775. 
 
 12 In an instructive series of cases in Alabama, all the more note- 
 worthy for the stringency of the general rule as to injunctions in emi- 
 nent domain cases in that state (see atite, § 465). In Columbus & W. 
 Ey. Co. V. Witherow, 82 Ala. 190, 3 South. 23, an injunction granted 
 restraining the defendant from the further construction, without 
 compensation to complainant, of its embankment in a street the fee 
 of which was owned by complainant, was dissolved upon the defend- 
 ant's furnishing security deemed adequate for the damage it might 
 do in the erection of the embankment. The court said: "The pro- 
 ceeding is one in restraint of a public work of great utility — the 
 construction of a railroad — thus presenting a case in which injunc- 
 tions are granted with great caution. Delay in the construction of 
 the work may operate very oppressively against the defendant, as 
 well as result in great injury to the public. Courts very often, in 
 such cases, balance the question of damages to the one part^j', and 
 that of benefit to the other, resulting from the maintenance of the in.
 
 773 INJUNCTION; EMINENT DOMAIN. § 468 
 
 to recognize any distinction as to the abutting owner's 
 rights based on his ownership of the fee in the street, 
 holding that there is no taking of his property, but only 
 of the public easement in the street; and the same 
 courts refuse to enforce by injunction the constitu- 
 tional provision against "damaging" property without 
 just compensation, unless the damaging amounts to a 
 virtual destruction.^^ 
 
 junction, on the one hand, and its dissolution on the other, and refuse 
 to take any action which will cause great injury to one party, and 
 probably be of serious detriment at the same time to the public, with- 
 out corresponding advantage to the other party." In Western Rail- 
 way of Alabama v. Alabama G. T. R. Co., 96 Ala. 272, 11 South. 483, 
 17 L. R. A. 474, a temporary injunction was dissolved, it appearing 
 that the construction of defendant 's railway would not interfere with 
 the tracks of complainant, nor with any track it had the right to con- 
 struct; that the damage to complainant would be nominal; that the 
 defendant was not shown to be insolvent, and that to stop the work 
 under the circumstances would probably result in grievous disaster 
 to its enterprise, which was of a public nature, without any advan- 
 tages to accrue to the complainant. See, also, Mobile & M. Ry. Co. 
 V. Alabama M. Ry. Co., 116 Ala. 51, 23 South, 57, reviewing prior 
 cases; Hinnershitz v. United Traction Co., 199 Pa. St. 3, 48 Atl. 
 874. 
 
 13 Spencer v. Point Pleasant & O. R. R. Co., 23 W. Va. 406, 
 420 flf, reviewing the then existing cases at great length, and hold- 
 ing that there was no "taking" of the abutting owner's fee, but 
 only of the public easement in the street, and criticising with great 
 force any distinction based on ownership of the fee in the street, and 
 holding that "damaging of property for public use without just com- 
 pensation" gave no right to an injunction, but only to recover dam- 
 ages in an action at law; unless under peculiar circumstances, as 
 where the property is entirely destroyed in value as effectively as if 
 it had actually been taken by the railroad company in constructing 
 its road. All damages of a permanent character may be recovered 
 in a single suit at law, and an injunction is therefore not necessary 
 to avoid repeated suits at law: Smith v. Point Pleasant & O. R. R. 
 Co., 23 W. Va. 451. The Spencer ease was followed in Arbenz v. 
 Wheeling & H. R. Co., 33 W. Va. 1, 10 S. E. 14, 5 L. R. A. 371; Wat- 
 son V. Fairmount & S. Ry. Co., 49 W. Va. 528, 39 S. E. 193. See, also, 
 Planet Property etc. Co. v. St. Louis etc. Ry. Co., 115 Mo. 613, 22 S. 
 W. 616; Rische v. Texas Transportation Co., 27 Tex. Civ. App. 33, 66 
 S. W. 324.
 
 S 469 EQUITABLE REMEDIES. 774 
 
 § 469. Same; Fee of Street in the Municipality. — Where 
 the abutting owner has not retained the fee in the 
 street, but that is vested in the municipality in trust 
 for the public, it is probably the rule still generally 
 • held that the injury to his easements of light, air, and 
 access caused by the authorized construction or opera- 
 tion of a railroad in the street constitutes no "taking" 
 of "property" within the meaning of the constitutional 
 inhibition, and therefore no ground for an injunction.^* 
 To remedy the gross injustice and hardship of this rule, 
 nearly all recent state constitutions have prohibited 
 the "damaging" or "injuring" of property for public 
 use without just compensation. This constitutional 
 provision, however, has not, like the former, generally 
 been construed by the courts as requiring the aid of 
 an injunction for its enforcement.^^ A reason for mak- 
 
 14 O'Brien v, Baltimore Belt R. R. Co., 74 Md. 369, 22 Atl. 141, 13 
 L. R. A. 126 (statute authorizes recovery of damages for all injury) ; 
 Garrett v. Lake Roland El. Ry. Co., 79 Md. 28U, 29 Atl. 830, 24 L. R. 
 A. 396, and many cases cited. See, also, cases in following notes. 
 
 15 Illinois.— Doane v. Lake St. El. R. Co., 165 111. 510, 56 Am. St. Rep. 
 265, 46 N. E. 520, 36. L. R. A. 97, and cases cited; Stetson v. Chicagj 
 & E. R, Co., 75 111. 74; Peoria & R. I. R. Co. v. Schertz, 84 111. 135; 
 Truesdale v. Peoria Grape Sugar Co., 101 111. 561; Corcoran v. Chicago, 
 M. & N. R. Co., 149 111. 291, 37 N. E. 68; Stewart v. Chicago General 
 St. Ry. Co., 166 111. 61, 46 N. E. 765; General Elec. Ry. Co. v. Chi- 
 cago & W. I. R. Co., 184 111. 588, 56 N. E. 963; Blodgett v. Northwest- 
 ern El. R. Co., 80 Fed. 601, 26 C. C. A. 21; Coffeen v. Chicago, M. & 
 St. P. Ry. Co., 84 Fed. 46, 28 C. C. A. 274; but see Beeson v. City 
 of Chicago, To Fed. 880. 
 
 Missouri. — Clemens v. Connecticut Mut. Life Ins. Co. (Mo.), 82 S. 
 W. L 
 
 Colorado.— Denver & S. F. R. Co. v. Domke, 11 Colo. 247, 17 Pac. 
 777; Denver, U. & P. Ry. Co. v. Barsaloux, 15 Colo. 290, 25 Pac. 165, 
 10 L. B. A. 89; Haskell v. Denver Tramway Co., 23 Colo. 60, 46 Pac. 
 121. 
 
 Georgia. — See Brown v. Atlanta R. & P. Co., 113 Ga. 462, 39 S. E, 
 71. 
 
 Nebraska. — Bronson v. Albion Tel. Co. (Neb.), 93 N. W. 201.
 
 775 INJUNCTION; EMINENT DOMAIN. § 469 
 
 inj:j this distinction is found in the difficulty of ascer- 
 taining, before the railroad is actually in operation, 
 the amount of damage that will be caused to abutting 
 premises; also in the fact, sometimes referred to, that 
 legislatures have not seen fit to provide a procedure for 
 condemning the easements of abutting owners or ap- 
 praising the damage to their property. They are there- 
 fore left to pursue their remedies at law for the recov- 
 ery of such damage as they may suffer; unless, indeed, 
 some incident such as the insolvency of the railroad 
 company renders the collection of the damages recov- 
 ered impossible, and the intervention of a court of 
 equity essential.^® 
 
 In a number of states, while the abutting owner is 
 usually left to his legal remedy, if the operation of the 
 railroad amounts to a total obstruction of the street 
 or of plaintiff's access to his premises,^ ^ or causes a 
 
 16 Dictum in Peoria & E. I. E. Co. v. Scliertz, 84 lU. 135. 
 
 17 Missouri.— Lockwood v. Wabash E. E. Co., 122 Mo. 86, 43 Am. St. 
 Eep. 547, 26 S. W. •GQS (street so narrow that use by railroad neces- 
 sarily destroys it as a public thoroughfare, and deprives abutting 
 owners of access t© their property); Knapp, Stout & Co. v. St. 
 Louis Transfer Ey. Co., 126 Mo. 26, 28 S. W. 627 (track so close to 
 plaintiff's building as to practically obstruct access); Schulenberg 
 & Borckeler Lumber Co. v. St. Louis, K. & N. W. Ey. Co., 129 Mo. 
 455, 31 S. W. 796; Sherlock v. Kansas City Belt Ey. Co., 142 Mo. 
 172, €4 Am. St. Eep, 551, 43 S. W. 629 (railroad in alley; injunction 
 before running of cars has begun). In D. M. Osborne & Co. v. Mis- 
 souri P. E. Co., 147 U. S. 248, 13 Sup. Ct. 299, 37 L. ed. 155, Fuller, 
 C. J., after reviewing the Missouri decisions and stating the general 
 principle as to equitable relief against the exercise of the eminent 
 domain power, makes the following general statement, which has been 
 often quoted: "But where there is no direct taking of the estate 
 itself, in whole or in part, and the injury complained of is the inflic- 
 tion of damages in respect to the complete enjoyment thereof, a court 
 of equity must be satisfied that the threatened damage is substan- 
 tial, and the remedy at law in fact inadequate, before restraint will 
 be laid upon the progress of a public work; and if the case made dis- 
 closes only a legal right to recover damages rather than to demand 
 compensation, the court will decline to interfere."
 
 I 470 EQUITABLE REMEDIES. 776 
 
 destruction of liis property for the purposes for which it 
 was used, equivalent in effect to a physical appropria- 
 tion of the land, he may resort to equity for an in- 
 junction.^® 
 
 § 470. Same; New York Rule; Elevated Railroad Cases. — 
 The New York doctrine as laid down in the "Elevated 
 Railroad cases" appears to have, as yet, but a slight 
 following in other states ; but these cases are so notable 
 from their vast number, the eminence of the counsel 
 engaged in many of them, and the thoroughness with 
 which the fundamental principles are discussed and 
 subsidiary rules worked out, that a somewhat full state- 
 ment of the chief conclusions arrived at seems called 
 for even in a work of an elementary character. It is 
 important to notice, however, that these conclusions 
 are held not to apply to a steam railroad on the surface 
 of the street, operated in such a manner as not to ob- 
 struct public traflflc. 
 
 The doctrine was thus summed up in one of the lead- 
 ing cases of the series: "The decisions of this court have 
 settled the rights of abutting property owners to an 
 easement in the street occupied by the defendants' 
 structure, for free egress and ingress, and for the free 
 admission of light and circulation of air. That ease- 
 ment is property, and constitutes an interest in real 
 estate ; and because the defendants' railroad was a use of 
 the street not originally designed, and was an appropri- 
 ation to themselves of property rights, it cannot be main- 
 tained without compensation being made to the abut- 
 ting owners for the injury inflicted upon their property 
 and rights; and, for the annoyance caused through the 
 operation of the road to the abutting owners, in their 
 enjoyment of the use of their property, they are en- 
 
 is See cases cited ante, last section, note 13.
 
 777 INJUNCTION; EMINENT DOMAIN. S 479 
 
 titled to recover such damages as may be shown to be 
 the result of the defendants' acts: Story v. New York 
 etc. R. R. Co., 90 N. Y. 122, 43 Am. Rep. 146 ; Lahr v. 
 New York etc. Railroad Co., 104 N. Y. 2G8, 10 N. E. 
 528. Although property owners have a remedy at law 
 for the intrusion upon their rights, yet, as the trespass 
 is continuous in its nature, they can invoke the re- 
 straining power of a court of equity in their behalf, in 
 order to prevent a multiplicity of suits, and they can 
 recover the damages they have sustained, as incidental 
 to the granting of the equitable relief : Williams v. New 
 York Cent. R. R. Co., 16 N. Y. 97, 69 Am. Dec. 651; 
 Henderson v. New York Central R. R. Co., 78 N. Y. 
 423. The violation of the property rights of abutting 
 owners being adjudged in such an action, the awarding 
 of damages sustained in the past from the defendants 
 follows; they being, on equitable principles, deemed 
 incidental to the main relief sought."^ ^ 
 
 19 Shepard v. Manhattan Ey. Co., 117 N. Y. 442, 23 N. E. 30, per 
 Gray, J. The decisions in the Story case and other elevated railroad 
 cases are based upon the character of the structure and do not ap- 
 ply to a steam surface railroad operated in a reasonable way: Forbes 
 V. Eome, W. & O. E. Co., 121 N. Y. 505, 24 N. E. 921, 8 L. E. A. 453 j 
 Drake v. Hudson E. E. Co., 7 Barb. 508. The principles of the Story 
 and Lahr cases were again announced and explained in Abendroth 
 V. New York El. E, Co., 122 N. Y. 1, 25 N. E. 496, 19 Am. St. Eep. 
 4(51, 11 L. E. A. 634; Kane v. Metropolitan El. E. Co., 125 N. Y. 164, 
 26 N. E. 278, 11 L. E. A. 640, explaining the legal basis for the doc- 
 trine of the abutter's easements in the street; Kernochan v. New 
 York El. E. Co., 128 N, Y. 568, 29 N. E. 65; Hughes v. New York El. 
 K. Co., 130 N. Y. 14, 28 N. E. 765; O 'Eeilly v. New York El. E. Co., 
 148 N. Y. 347, 42 N. E. 1063, 31 L. E. A. 407. See, also, Knox v. Met- 
 ropolitan El. E. Co., 36 N. Y. St. Eep. 2, 12 N.Y. Supp. 848. The doctnuo 
 of the elevated railroad cases was followed in Willamette Iron Works 
 V. Oregon E. & N. Co., 26 Or. 224, 46 Am. St. Eep. 620, 37 Pac. 1016, 29 
 L. E. A. 88; and appears to have been anticipated, in substance, in 
 Scioto Val. E. Co. v. Lawrence, 38 Ohio St. 41, 43 Am. Eep. 419. Tri 
 Iowa a statute provides that railroad tracks shall not be construct o<] 
 in streets, etc., until damages to abutters are ascertained and com-
 
 § 470 EQUITABLE EEMEDIES. 778 
 
 In a common -law, as distinguished from an equitable, 
 action, the abutter can only recover such temporary 
 damages as have been sustained up to the time of the 
 commencement of the action, and is not entitled to 
 damages measured by the permanent diminution in the 
 value of his property.^® "But the owner may resort 
 to equity for the purpose of enjoining the continuance 
 of the trespass, and to thus prevent a multiplicity of 
 actions at law to recover damages; and in such an ac- 
 tion the court may determine the amount of damage 
 which the owner would sustain if the trespass were 
 permanently continued, and it may provide that upon 
 pa^^ment of that sum, the plaintiff shall give a deed 
 or convey the right to the defendant, and it will refuse 
 an injunction when the defendant is willing to pay 
 upon the receipt of a conveyance. The court does not 
 adjudge that the defendant shall pay such sum and that 
 the plaintiff shall so convey. It provides that if the 
 conveyance is made and the money paid, no injunction 
 shall issue. If defendant refuses to pay, the injunc- 
 tion issues. "^^ The award of damages for past injuries 
 
 pensated. The abutter may have an injunction under this statute to 
 prevent its violation: See Harbach v. Des Moines & K. C. E. Co., SO 
 Iowa, 593, 44 N. W. 348, 11 L. R. A. 113. 
 
 20 Pond V. Metropolitan El. R. Co., 112 N. Y. 186, 8 Am. St. Rep. 
 734, 19 N. E. 487; Uline v. New York etc. R. R. Co., 101 N. Y. 98, 54 
 Am. Rep. 661, 4 N. E. 536. 
 
 21 Pappenheim v. Metropolitan El. R. Co., 128 N. Y. 436, 26 Am. 
 St. Rep. 486, 28 N. E. 518, 13 L. R. A. 401. See, also, McGean v. 
 Metropolitan El. R, Co., 133 N. Y. 9, 30 N. E. 647; Van Allen v. New 
 York El. R. Co., 144 N. Y. 174, 38 N. E. 997; Pegram v. New York 
 El. R. Co., 147 N. Y. 135, 41 N. E. 424. See, also, Woodworth v. Brook- 
 l>Ti El. R. Co., 29 App. Div. 1, 51 N. Y. Supp. 323 (when railroad in 
 hands of receiver); Siegel v. New York & H. R. Co., 62 App. Div. 
 290, 70 N. Y. Supp. 1088; Larney v. New York & H. R. Co., 62 App. 
 Div. 311, 71 N. Y. Supp, 27; Auchincloss v. Metropolitan El. R. Co.. 
 69 App. Div. 63, 74 N. Y. Supp. 534, reversing 60 N, Y. Supp. 792; 
 Lane v. Metropolitan El. R, Co., 69 App. Div. 231, 74 N. Y, Supp.
 
 779 INJUNCTION; EMINENT DOMAIN. § 470 
 
 sustained being incidental to the equitable relief, tlie 
 defendant is not entitled to a jury trial of such claim 
 for damages.22 
 
 Actual damage suffered by the abutting property is 
 of the gist of the equitable action. A court of equity 
 is at liberty to disregard the mere technical trespass 
 upon the abutter's rights, and to refuse an injunction, 
 "in a case where the plaintiffs are unable to show any 
 actual damage to their property, or loss suffered, by 
 reason of the defendants' acts, and in the face of the 
 fact that, by reason of the presence and operation of 
 the elevated railroad in the street, the value of their 
 property has greatly increased, and that it has shared 
 equally with all the property in the vicinity in the 
 general increase of values which has taken place."^^ 
 
 595. See, also, Muhlker v. New York & H. E. Co., 197 U. S. 455, 25 
 Sup. Ct. 522. 
 
 22 Lynch v. Metropolitan El. K. Co., 129 N. Y. 274, 26 Am. St. Eep. 
 523, 29 N. E. 315, 15 L, K. A. 287, ably discussing the general sub- 
 ject of damages as incidental to relief in equity; Shepard v. Man- 
 hattan Ey. Co., 131 N. Y. 215, 30 N. E. 187; Hunter v. Manhattan 
 E. Co., 141 N. Y. 281, 36 N. E. 400. 
 
 23 O'Eeilly v. New York El. E. Co., 148 N. Y, 347, 42 N. E. 1063, 
 31 L. E. A. 407, citing Jerome v. Ross, 7 Johns. Ch. 315, 11 Am. Dec. 
 484; Kerlin v. West, 4 N. J. Eq. 449; Troy & B. E. Co. v. Boston, H. 
 T. & W. E. Co., 86 N. Y. 123; Gray v. Eailway Co., 128 N. Y. 499, 28 
 N. E. 498; Shepard v. Eailway Co., 131 N. Y. 215, 30 N. E. 187; 
 Hunter v. Eailway Co., 141 N. Y. 281, 36 N. E. 400; Doyle v. Eailway 
 Co., 136 N. Y. 505, 32 N. E. 1008; Bookman v. Eailroad Co., 147 N. 
 Y. 298, 49 Am. St. Eep. €64, 41 N. E. 705. See, also, Purdy v. Man- 
 hattan El. E. Co., 36 N. Y. St. Eep. 43, 13 N. Y. Supp. 295; Brush t. 
 Manhattan El. E. Co. (Com. P.), 17 N. Y. Supp. 540; Steinmetz v. 
 Metropolitan El. E. Co. (Sup. Ct.), 18 N. Y. Supp. 209; Pratt t. 
 New York C. & H. E. E. Co., 90 Hun, 83, 35 N. Y. Supp. 557; Eorke 
 V. Kings Co. El. E. Co., 22 App. Div. 511, 48 N. Y. Supp. 42; Tillson 
 V. Manhattan E. Co., 24 App. Div. 623, 48 N. Y. Supp. 224; Marsh v. 
 Kings Co. El. E. Co., 86 Fed. 189, 29 C. C. A. 655. Compare Mait- 
 land V. Manhattan E. Co., 9 Misc. Eep. 616, 30 N. Y. Supp. 428. The 
 opinion of Gray, J., in the O'Eeilly case, is one of the most instruc- 
 tive in the whole course of the elevated railroad litigation. He says,
 
 § 470 EQUITABLE REMEDIES. 780 
 
 in part: "Therefore, the only ground for the claim of the plaintiffa, 
 that they are entitled to equitable relief, is in the mere fact that 
 the defendants have invaded their rights in the public street, with- 
 out their consent, and without having first condemned the same by an 
 
 exercise of the right of eminent domain But it seems to me to 
 
 be perfectly clear that the court, when appealed to by the property 
 owners to enjoin the operation by the corporation of its franchises, 
 upon the ground that certain easements have been invaded, will con- 
 sider the fact that the corporation is there for the public convenience, 
 and is executing a quasi public work; and, if it finds that no injury 
 is in truth inflicted, and that the property owner has suffered no 
 actual damage, it may and should refuse to grant the relief prayed 
 
 for The court recognizes the fact that the defendants had the 
 
 right to appropriate the street easements by condemnation proceed- 
 ings, and hence, when appealed to to enjoin them from operating 
 their franchises, it looks into the question of the substantial nature 
 of the damage alleged to have been done to the property, or of the 
 loss suffered by the owner. If it is found to be such, then the court 
 proceeds in the matter as though the proceeding was one to condemn 
 to the defendants' uses the property appropriated, and, having ascer- 
 tained the value of the property, it suspends the decree, which it 
 finds the plaintiffs are entitled to to restrain the continuance of the 
 defendants' acts, for a sufficient period within which to permit the 
 defendants to acquire the right to appropriate the easements through 
 a conveyance, as a condition of avoiding the enforcement of the de- 
 cree. The proceedings by which the court ascertains and fixes the 
 damages done to the abutting property in the deprivation of ease- 
 ments are, in fact, but a substitute for condemnation proceedings," 
 etc. 
 
 Parties Plaintiff; Title, etc.: See Shepard v. Manhattan E. Co., 
 117 N. Y. 442, 23 N. E. 30 (joinder); Kernochan v. New York El. R. 
 Co., 128 N. Y. 568, 29 N. E. 65 (lessor a proper plaintiff; right of 
 action accruing after death vests in heirs, not in administrator) ; 
 Hughes V. New York El. R. Co., 130 N. Y. 14, 28 N. E. 765 (evidence 
 of plaintiff's title); McGean v. Metropolitan El. Ey. Co., 133 N. Y. 
 9, 30 N. E. 647 (effect of transfer of plaintiff's title pendente lite); 
 Mitchell V. Metropolitan El. R. Co., 56 Hun, 543, 9 N. Y. Supp. 829, 
 134 N. Y. 11, 31 N. E. 260 (permanent damages should be paid to 
 heirs, not to executors, of deceased owner) ; Hunter v. Manhattan 
 R. Co., 141 N. Y. 281, 3G N. E. 400 (a part of the claim for damages 
 rests on assignment); Van Allen v. New York El. Ry, Co., 144 N. Y. 
 174, 38 N. E. 997 (effect of conveyance pendente lite on jurisdiction 
 of the court of equity to award damages); Pegram v. New York El. 
 R. Co., 147 N. Y. 135, 41 N. E. 424 (same question); Doraschke v. 
 Metropolitan El. R. Co., 148 N. Y. 343, 42 N. E. 804 (conveyance
 
 781 INJUNCTION; EMINENT DOMAIN. § 470 
 
 pendente lite); Koeler v. New York El. K. Co., 159 N. T. 218, 53 N. 
 E. 1114 {pendente lite grantee may be joined as plaintiff or defend- 
 ant); Mooney v. New York El, R. Co., 163 N. Y. 242, 57 N. E. 496. 
 See, also, Welsh v. New York El. R. Co. (Com. PI.), 12 N. Y. Supp. 
 545 (where plaintiff has leasehold interest, injunction only during 
 continuance of his interest) ; Odell v. Metropolitan El. R. Co., 3 
 Misc. Rep. 335, 22 N. Y. Supp. 737; Wright v. New York El. R. Co., 
 78 Hun, 450, 29 N. Y. Supp. 223 (where conveyance from plaintiffs 
 is impossible, decree should be for injunction unless defendant pay 
 a certain sum upon conveyance, and if that could not be made, unless 
 defendant condemn the easements) : McKee v. New York El. R. Co., 79 
 Hun, 366, 29 N. Y. Supp. 457 (same question); Skelly v. Metropolitan 
 El. R. Co., 1 App. Div. 31, 37 N. Y. Supp. 7, affirmed without opinion, 
 158 N. Y. 677, 52 N. E. 1126. (same question); Jacobson v. Brooklyn 
 El. R. Co., 22 Misc. Rep. 281, 48 N. Y. Supp. 1072 (such claim for 
 damages as passes to executors of owner is u.erely basis for common- 
 law action). 
 
 Measure of Damages in Eauity: See Drucker v. Manhattan R. Co., 
 106 N. Y. 157, 60 Am. Rep, 437, 12 N. E. 568; Newman v. Metropoli- 
 tan El. R. Co., 118 N. Y. 618, 23 N. E. 901, 7 L. R. A. 289; Kane v. 
 Metropolitan El. R. Co., 125 N Y. 164, 26 N. E, 278, 11 L. R. A. 640; 
 Pappenheim v. Metropolitan El. R. Co., 128 N. Y. 436, 26 Am. St. 
 Rep. 486, 28 N. E. 518, 13 L. R, A, 401; Roberts v. New York El. 
 R. Co., 128 N, Y, 455, 28 N. E. 486, 13 L. R. A. 499 (as to opinion evi- 
 dence and testimony of experts) ; Gray v. Manhattan R. Co., 128 N. 
 Y. 499, 28 N. E. 498 (same); Bohm v. Metropolitan El. R. Co., 129 
 N. Y. 576, 29 N. E. 802, 14 L, R. A. 344; Hughes v. New York El. 
 R. Co., 130 N. Y. 14, 28 N. E. 765; Storck v. Metropolitan El. R. Co., 
 131 N. Y. 514, 30 N. E. 497; Becker v. Metropolitan El. R. Co., 131 
 N. Y. 509, 30 N. E. 499; Woolsey v. New Y^ork El. R. Co., 134 N. Y. 
 323, 30 N, E. 387; affirmed on rehearing, 31 N. E. 891; Sperb v. Metro- 
 politan El. R. Co., 137 N. Y. 155, 32 N. E. 1050, 20 L. R. A. 752, 
 reviewing prior cases ("the principle which should guide an award 
 of damages to be paid by the railroad company in order to obviate 
 the injunction is the same as in proceedings under the statute to 
 condemn property for the railroad use"); Hunter v. Manhattan R. 
 Co., 141 N. Y. 281, 36 N. E. 400 (what expert testimony is admissi- 
 ble); Bookman v. New York El. R. Co., 147 N. Y, 298, 49 Am. St. 
 Rep. 664, 41 N. E. 705; Jamieson v. Kings Co. El. R. Co., 147 N. Y. 
 322, 41 N. E, 693; Roberta v. New York El. R. Co., loS N. Y. 31, 49 
 N. E. 262. See, also. Emigrant Mission Com. v. Brooklyn El. R. Co., 20 
 App. Div. 596, 47 N. Y. Supp. 344. 
 
 Statute of Limitations.— Since the trespass is a continuing one. the 
 action for injunction may be maintained so long as a legal claim for 
 the trespass exists; and no lapse of time or inaction merely on tht^
 
 5 4 71 EQUITABLE REMEDIES. 782 
 
 § 471. Changing Grade of Street; Other Uses of Streets; 
 Vacating Streets. — Here, again, it is necessary to segre- 
 gate the cases which hold that the injury caused to the 
 abutting owner by the action of a municipal or other 
 authority, acting within the limits of its power, in 
 raising or lowering the grade of a street, confers no 
 right of action whatever upon the abutter;'-^ and cases 
 holding that such structures as electric light poles,^^ 
 telegraph or telephone poles, and the like, create no 
 "additional servitude" in the street. If the abutter 
 owns the fee in the street, and such structures are held 
 to create an additional servitude, and are shown to 
 
 part of the plaintiff, unless it has continued for the length of time 
 necessary to effect a change of title in the property claimed to hava 
 been injured, is sufficient to defeat the right of the owner to dam- 
 ages, and, consequently, to equitable relief: Galway v. Metropolitan 
 Eiev. R. Co., 128 N. Y. 145, 28 N. E. 479. 
 
 Laches, Acquiescence and. Estoppel. — Conduct not amounting to: 
 Galway v. Metropolitan El. E. Co., 128 N, Y. 145, 28 N. E, 479, 13 
 L. E, A. 788; Brush v. Manhattan El. E. Co., 26 Abb. N. C. 73, 13 
 N. Y. Supp. 908. 
 
 Abandonment of Easements, evidenced by written consent to the 
 building of the railroad: "White v. Manhattan E. Co., 139 N. Y. 19, 
 
 34 N. E. 887; Heimburg v. Manhattan R. Co., 162 N. Y. 352, 56 N. 
 E. 899, 19 App. Div. 179, 45 N. Y. Supp. 999; see, also, Bellew v. iS'ew 
 York, W. & C. Traction Co., 47 App. Div. 447, 62 N. Y. Supp. 242; 
 or where plaintiff purchased from city, which had given consent: 
 Herzog v. New York El. E. Co., 76 Hun, 486, 27 N. Y. Supp. 1034, 
 affirmed without opinion, 151 N. Y. 665, 46 N. E. 1148. As to the 
 effect of consent conditional on compensation, see Kornder v. Kings 
 Co. El. E. Co., 41 App. Div. 357, 58 N. Y. Supp. 518. 
 
 '2i See, for example, Fellowes v. City of New Haven, 44 Conn. 240, 
 26 Am. Eep. 447; Churchill v. Beethe, 48 Neb. 87, 66 N. W. 992, 
 
 35 L. E. A. 442 (change of grade diverting surface water on to plain- 
 tiff's land); Talbot v. New York & H. E. Co., 151 N. Y. 155, 45 N. E. 
 382 (change of street grade in constructing bridge over railroad) ; 
 and see Lewis, Eminent Domain, §§ 92-109. For further cases hold- 
 ing, in general, that the exercise of discretionary powers by munici- 
 pal authorities will not be enjoined, see ante, § 342. 
 
 25 Loeber v. Butte General Elec. Co., 16 Mont. 1, 50 Am. St. 
 Eep. 468, 39 Pac. 912. See monographic note, 28 Am. St. Eep. 229.
 
 783 INJUNCTION; EMINENT DOMAIN. § 471 
 
 abridge the right of the abutter to the use of the street 
 as a means of ingress and egress, or otherwise, a proper 
 case is made for an injunction until compensation is 
 made.2^ 
 
 In the limited class of cases where the injury caused 
 by a change of grade is. held to constitute a "taking" 
 of the abutter's property, it seems that an injunction 
 may issue in accordance with the general principles 
 governing injunction against the exercise of the emi- 
 nent domain power.^' 
 
 Where, under the modern constitutional provision, 
 "damaging" property for public use without compensa- 
 tion is prohibited, and paying or securing the compensa- 
 tion is treated as a condition precedent to doing the 
 work which causes the damage, an injunction will usu- 
 ally be granted until the condition is complied with. 
 The considerations which should guide the court in 
 granting or refusing the injunction at the suit of the 
 
 26 Chesapeake & P. Tel. Co. v. Mackenzie, 74 Md. 36, 28 Am. 
 St. Eep. 219, 21 Atl. 690. See, also, Donovan v. Allert, 11 N. D. 
 289, 95 Am. St. Eep. 720, 91 N. W. 441, 58 L. E. A. 775. Where 
 the abutter's cause of action is dependent upon his ownership of 
 the fee in the street, a bill by him to enjoin a telephone company 
 from laying conduits under the sidewalk is demurrable, when it does 
 not allege that the plaintiff owned the fee in the walk or street, 
 or that the walk or street was dedicated to the public by one who 
 at the time owned the fee: Erwin v. Central Union Tel. Co., 148 
 Ind. 365, 46 N. E. 6€r7, 47 N. E. 663. 
 
 27 See Vanderlip v. City of Grand Eapids, 73 Mich. 522, 16 Am. 
 St. Eep. 597, 41 N. W. 677, 3 L. E. A. 247, where the injury was 
 done by raising the grade, thereby burying a portion of the dwell- 
 ing-house and barn of the abutting owner. In those jurisdictions, 
 like New York, where the plaintiff's right of action with reference 
 to an additional servitude is not dependent upon his ownership 
 of the fee, it seems that he cannot enjoin such a structure as a 
 telephone conduit, authorized to be laid in the street, in the absence 
 of a showing of substantial pecuniary damage to his property: Castle 
 V. Bell Tel. Co. of Buffalo, 30 Misc. Eep. 38, 61 N. Y. Supp. 743, 
 following the principle of O'Eeilly v. Eailroad Co., ante, § 470, at 
 note 23.
 
 S 471 EQUITABLE REMEDIES. 184 
 
 abutting owner in such cases are thus stated in a most 
 instructive opinion by Judge Brewer: 
 
 "First. A chancellor, in determining an application 
 for an injunction, must regard not only the rights of 
 the complainant which are sought to be protected, but 
 the injuries which may result to the defendant or to 
 others from the granting of the injunction. If the com- 
 plainant's rights are of a trifling character, if the in- 
 jury which he would sustain from the act sought to 
 be enjoined can be fully and easily compensated, while, 
 on the other hand, the defendant would suffer great 
 damage, and especially if the public would suffer a 
 large inconvenience if the contemplated act was re- 
 strained, the lesser right must yield to the larger ben- 
 efit; the injunction should be refused, and the com- 
 plainant remitted to his action for damages. This rule 
 has been enforced in a multitude of cases, and under 
 a variety of circumstances, and is one of such evident 
 justice as needs no citation of authorities for its sup- 
 port. 
 
 "Scco7id. When the defendant has an ultimate right 
 to do the act sought to be restrained, but only upon 
 some condition precedent, and compliance with the con- 
 dition is within the power of the defendant, injunction 
 will almost universally be granted until the condition 
 is complied with. This principle lies at the foundation 
 of the multitude of cases which have restrained the 
 taking of property until after the payment of compensa- 
 tion, for in all those cases the legislature has placed at 
 the command of the defendant means for ascertaining 
 the value of the property. In those cases the courts 
 have seldom stopped to inquire whether the value of 
 the property sought to be taken was little or great, 
 whether the injury to the complainant was large or 
 small, but have contented themselves with holding that
 
 785 INJUNCTION; EMINENT DOMAIN. § 471 
 
 as the defendant had full means for ascertaining such 
 compensation, it was his first duty to use such means, 
 determine and pay the compensation, and until he did 
 so the taking of the property would be enjoined. 
 
 "lliird. Where the defendant has an ultimate right 
 to do the act sought to be enjoined upon certain condi- 
 tions, and the means of complying with such conditions 
 are not at his command, the courts will endeavor to 
 adjust their orders so on the one hand as to give to the 
 complainant the substantial benefit of such conditions, 
 while not restraining the defendant from the exercise 
 of his ultimate rights. Thus, in the case at bar, the de- 
 fendant has of course the ultimate right to grade this 
 street. As a condition of such right is a payment of 
 damages, but it has no means of ascertaining those 
 damages; no tribunal has been created, no provision 
 of law made, for their ascertainment. Hence, if pos-' 
 sible, the court should provide for securing to the de- 
 fendant this ultimate right, and at the same time give 
 to the complainant the substantial benefit of the prior 
 conditions." It was further held that in applying the 
 rule first stated to a case like the one at bar, the court 
 should have principal regard to three matters, viz. : 
 the amount of injury to the complainant, the solvency 
 of the defendant, and the importance to the public of 
 the proposed improvement.^^ 
 
 28 McElroy v. Kansas City, 21 Fed. 257, 261, et seq., per Brewer, 
 Cir. J.; approved in D. M. Osborne & Co. v. Missouri Pac. E. Co., 
 147 U. S. 248, 13 Sup. Ct. 299, 37 L. ed. 155. It was found that 
 the injury to the complainant's lot would be serious; that the de- 
 fendant was unquestionably solvent; and that the improvement was 
 not one of pressing public necessity. A restraining order was is- 
 sued, with a provision for the appointment of commissioners by the 
 court to ascertain and report the complainant's damages, end for 
 vacating the injunction on payment of such damages. See, also, in 
 support of the plaintiff's right to an injunction under the "dam- 
 aged" clause of the constitution. Brown v. City of Seattle, 5 Wash. 
 Equitable Remedies, Vol. 1—50
 
 § 472 EQUITABLE REMEDIES. 786 
 
 The courts are not in accord on the question, what 
 right to compensation, if any, is given to owners of prop- 
 erty abutting on a street by the constitutional provi- 
 sions cited in this chapter, consequent on the author- 
 ized vacating of the street by the proper authorities.-^ 
 Granting that such right to compensation exists, in a 
 given case, the owner's right to an injunction until 
 damages are paid or secured would seem to depend on 
 the usual principles regulating injunction against the 
 exercise of the eminent domain power, where the abut- 
 ter's easements in the street are taken or impaired.^" 
 
 § 472. Acquiescence. — The equitable doctrine of acqui- 
 escence is freely applied to cases involving eminent do- 
 
 35, 31 Pac. 313, 32 Pac. 214, 18 L. R. A. 161; Searle v. City of Lead, 
 10 S. D. 312, 73 N. W. 101, 39 L. R. A. 315. Contra, Moore v. 
 City of Atlanta, 70 Ga. 611; compare Hurt v. City of Atlanta, 100 
 Ga. 280, 28 S. E. 65 (no injunction against bridge in street where 
 no actual damage shown). In the well-considered case of Geur- 
 kink V. City of Petaluma, 112 Cal. 306, 44 Pac. 570, it was held that 
 a city should be enjoined from so changing a natural watercourse 
 as to damage an abutting owner's property by preventing a free 
 access to and use thereof, unless compensation for such damage 
 should be first made, or paid into court, for him. 
 
 "Where it is held that the payment of consequential damages is 
 not a condition precedent, no injunction will issue to prevent a 
 change of grade: Clemens v. Connecticut Mut. Life Ins. Co. (Mo.). 
 82 S. W. 1. 
 
 29 See Lewis, Eminent Domain, § 134. 
 
 30 That injunction will issue at the suit of owner whose property 
 abuts on the part vacated, or whose access to his property is de- 
 stroyed by the vacating, but not where other means of access remain 
 to the owner, see McQuigg v. Cullins, 56 Ohio St. 649, 47 N. E. 595; 
 Kinnear v. Beatty, 65 Ohio St. 264, 87 Am. St. Eep. 600, 62 N. E. 
 341; Glasgow v. City of St. Louis, 107 Mo. 198, 17 S. W. 743;' 
 Wooters v. City of Crockett, 11 Tex. Civ. App. 474, 33 S. W. 391. 
 See, also, Parker v. Catholic Bishop of Chicago, 146 111. 158, 34 N. 
 E. 473 (where property is merely injured, tender of compensation 
 is not a condition precedent to exercise of eminent domain power) ; 
 McLachlan v. Incorporated Town of Gray, 105 Iowa, 259, 74 N. W. 
 773 (when certiorari an adequate remedy); Prince v. McCoy, 40 
 Iowa, 533 (no injunction where plaintiff not injured).
 
 787 INJUNCTION; EMINENT DOMAIN. § 472 
 
 main rights. The underlying principle of the constitu- 
 tional provisions allowing the taking of private prop- 
 erty is that it is to be devoted to public use. Hence, 
 when a landowner stands by until the public has ac- 
 quired an interest in the use, there is a strong reason 
 for applying the doctrine, in addition to the familiar 
 grounds governing its application to other cases. The 
 United States supreme court in a recent case^^ has 
 laid down the rule in no uncertain language. "If one, 
 aware of the situation, believes he has certain legal 
 rights, and desires to insist upon them, he should do 
 so promptly. If by his declarations or conduct he leads 
 the other party to believe that he does not propose to 
 rest upon such rights but is willing to waive them for 
 a just compensation, and the other party proceeds to 
 great expense in the expectation that payment of a fair 
 compensation will be accepted and the right waived — 
 especially if it is in respect to a matter which will 
 largely affect the public convenience and welfare — a 
 court of equity may properly refuse to enforce those 
 rights, and, in the absence of an agreement for com- 
 pensation, compel him to submit the determination of 
 the amount thereof to an impartial tribunal." Accord- 
 ingly, when a landowner stands by and makes no at- 
 tempt to enjoin a railroad company from building over 
 his land until large expenditures have been made, or 
 the road has been completed, injunctive relief will be 
 denied, and the party will be left to his remedy at law 
 for damages.^2 The same principle applies to the lay- 
 
 31 City of New York v. Pine, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. 
 ed. 820, quoting Pom. Eq. Jur., § 418, and many cases. See, also, 
 Goodin v. Cincinnati & W. Canal Co., 18 Ohio St. 169, 98 Am. 
 Dec. 95; Bravard v. Cincinnati, H. & I. R. Co., 115 Ind. 1, 17 N. 
 E. 183; Midland Ry. Co. v. Smith, 135 Ind. 348, 35 N. E. 284; Mid- 
 land Ry. Co, V. Smith, 113 Ind. 233, 15 N. E. 256. 
 
 32 Midland Ry. Co. v. Smith, 135 Ind. 348, 35 N. E. 284; Louis-
 
 5 473 EQUITABLE REMEDIES. 788 
 
 ing of pipes or to a taking for any other public usa^^ 
 And although permission is granted to take upon the 
 distinct understanding that compensation is to be 
 made, an injunction will not issue, after the work has 
 been done, for the purpose of enforcing payment.^^ The 
 doctrine also applies to cases involving the rights of 
 railroads in streets.^^ 
 
 § 473. Assessment of Damages by the Court, with Injunc- 
 tion as Alternative to Their Payment. — "Where a corpora- 
 tion which has the right to acquire property by an ex- 
 
 ville, N. A. & C. By. Co. v. Beck, 119 Ind. 124, 21 N. E. 471; Eoss 
 V. Elizabeth E. E. C«., 2 N. J, Eq. 422; Erie Ey. Co. v. Delaware, L. 
 k W. E. Co., 21 N, J. Eq. 283. And the rule, of course, applies when 
 the road is built at the owner's instigation: Pettibone v. La Crosse 
 
 6 M. E. Co., 14 Wis. 443. 
 
 33 Biddler v. Wayne Waterworks Co., 190 Pa. St. 94, 42 Atl. 
 380; Kincaid v, Indianapolis N. G. Co., 124 Ind. 577, 19 Am. St. 
 Eep. 113, 24 N. E. 1066, 8 L. E. A. 602. 
 
 34 Florida Southern E. Co. v. Hill, 40 Fla. 1, 74 Am. St. Eep. 124, 
 23 South. 566. 
 
 35 Ilinnershitz v. United Traction Co., 199 Pa. St. 3, 48 Atl. 874; 
 Baltimore & O. E. Co. v. Strauss, 37 Md. 237; Ferguson v. Covington 
 & C. El. E. & T. & B. Co., 108 Ky. 662, 57 S. W. 460; Byron v. 
 Louisville & N. E. Co., 22 Ky. Law Eep. 1007, 59 S. W. 519; Heilman 
 V. Lebanon & A. St. Ey. Co., 175 Pa. St. 188, 34 Atl. 647, 180 Pa. 
 St. 627, 37 Atl. 119. In the New York Elevated Eailroad cases tlie 
 doctrine of laches, as distinguished from estoppel, is held inap- 
 plicable upon this principle: "It must be regarded as settled in 
 this state that the doctrine of acquiescence or laches as a defense 
 to an equity action is limited to actions of an equitable nature 
 exclusively, or to those where the legal right has expired, or the 
 party has lost his right of property by prescription or adverse 
 possession; and that, where a legal right is involved, and upon 
 grounds of equity jurisdiction the courts have been called upon to 
 sustain the legal right, the mere laches of a party, unaccompanied 
 by circumstances amounting to an estoppel, constitute no defense": 
 Syracuse Solar Salt Co. v. Eome, W. & O. E. Co., 67 Hun, 153, 22 
 N. Y. Supp. 321. See, also, Galway v. Metropolitan El. E. Co., 128 
 N. Y. 145, 28 N. E. 479, 13 L. E. A. 788; Brush v. Manhattan El. 
 E. Co., 13 N. Y. Supp. 908. In the latter case relief was allowed 
 ton years after the construction of the road.
 
 789 INJUNCTION; EMINENT DOMAIN. S 473 
 
 ercise of the power of eminent domain has taken pos- 
 session of property, and has erected or is engaged in 
 the erection of structures thereon, but has not complied 
 with some condition precedent necessary to render its 
 acts in all respects lawful (such, for instance, as a fail- 
 ure on its part to pay some person the damages neces- 
 sarily incident to the maintenance of the structure), 
 and such person appeals to a court of equity for an in- 
 junction to restrain the maintenance or to compel the 
 removal of the structure, the court to which such ap- 
 peal is made has the power to determine the amount of 
 unpaid damages, and to withhold an injunction, and 
 direct that the structure be permitted to remain and be 
 operated, provided the assessed damages are paid. 
 Courts of equity will, as it seems, the more readily pur- 
 sue such a course when important public interests are 
 at stake, and a contrary course would be productive 
 of much public inconvenience and annoyance. "^^ This 
 rule applies with special force when the complainant, 
 by making no objection, acquiesces in the work. It 
 finds frequent application in the New York Elevated 
 Railroad cases, which are discussed elsewhere in this 
 chapter.^^ 
 
 36 St. Paul, M. & M. Ky, Co. v. Western Union Tel. Co., 118 Fed. 
 497, 55 C. C. A. 263, per Thayer, Cir. J. See, also, City of New 
 York V. Pine, 185 U. S, 93, 22 Sup. Ct. 592, 46 L. ed. 820; McElroy 
 T. Kansas City, 21 Fed. 257; Cowan v. Southern Ey. Co., 118 Ala. 
 554, 23 South. 754; Benjamin v. Brooklyn Unioa El. E. Co., 120 Fed, 
 428. 
 
 37 See ante, | 470.
 
 { 474 EQUITABLE EEMEDIES. 790 
 
 CHAPTER XXI. 
 
 INJUNCTIONS TO PEEVENT OR RESTEAIN THE 
 COMMISSION OF TOETS IN GENERAL; TO RE- 
 STRAIN CRIMINAL ACTS, 
 
 ANALYSIS. 
 
 § 474. The estatos and interests generally legal. 
 
 § 475. Kinds and classes of torts restrained. 
 
 § 476. Criminal acts — In general. 
 
 § 477. Applications of the principle. 
 
 § 478. Same — Public nuisance — Suits by individuals. 
 
 § 479. Same — Same — Suit by government. 
 
 § 480. Same — Eight of government to enjoin acts analogous to 
 
 nuisance. 
 
 § 481. Exception— Libel. 
 
 § 474. The Estates and Interests Generally Leg-al. — ^'Tlie 
 estates, interests, and primary rights to be secured by 
 injunctions of this kind are in most instances legal; 
 and the injunctions themselves, as a class, are fre- 
 quently described as those for the protection of legal 
 rights and interests. So far as they do thus sustain 
 and enforce legal rights, they are, of course, supple- 
 mentary to or in lieu of the legal remedies which courts 
 of common law originally gave, and perhaps now give, 
 by action, under the same circumstances. For this 
 reason, the general test as stated in a former paragraph 
 applies with special force. The inadequacy of the legal 
 remedies is the criterion which determines the exercise 
 of this preventive jurisdiction; and the criterion is en- 
 forced, especially by the American courts, with great 
 strictness."^ 
 
 1 Pom. Lq. Jur., § 1346.
 
 791 LN JUNCTION J TORTS, IN GENEEAL. ■ §§ 475,476 
 
 § 475. Kinds and Classes of Torts Restrained.— "The 
 legal remedy is ordinarily considered as adequate in 
 cases of torts to the person, and to property held by 
 a legal title, and equity does not interfere. There are, 
 however, certain species of torts, in respect to each of 
 which, as a class, it is settled that the legal remedy is 
 generally inadequate, so that equity will generally in- 
 terfere to prevent the wrong by injunction. There are 
 other species of torts, in respect to each of which, as a 
 class, the legal remedy is adequate, but may become in- 
 adequate, in individual instances, from their particu- 
 lar circumstances, so that in those instances an in- 
 junction will be granted. In the kind of torts for 
 which the legal remedy is generally inadequate, so that 
 an injunction is a proper remedy, the title of the in- 
 jured party must be clear, the injury real, and not 
 merely temporary or transient. They are waste, nui- 
 sance, including interference with easements, servi- 
 tudes, and similar rights, infringements of patent 
 rights, of copyrights, of trade-marks, and of other in- 
 tangible property rights, the pecuniary value of which 
 cannot be certainly estimated, such as literary property 
 in manuscript writings and good-will. In ordinary 
 trespasses the injured party is left to his remedy of 
 damages, but the circumstances of a trespass to prop- 
 erty — especially to real property — may be such that the 
 compensatory remedy is inadequate, and a court of 
 equity will prevent the wrong by injunction. "^ 
 
 § 476. Criminal Acts — In General. — A court of equity 
 is in no sense a court of criminal jurisdiction. Its pri- 
 mary province is the protection of property rights. 
 
 2 Pom. Eq. Jur., § 1347. This section is cited, to the point that 
 the plaintiff must show a clear title, in Perkins Lumber Co. v. Wilkin- 
 son (Ga.), 43 S. E, 696.
 
 S 477 EQUITABLE REMEDIES. l^Z 
 
 Hence, an injunction will not be granted to restrain an 
 act merely criminal, where no property right is directly 
 endangered thereby.^ Thus, an act morally wrong, 
 such as gambling, will not be enjoined at the suit of an 
 individual •,^ nor will a violation of a Sunday law f 
 nor a violation of a statute, where no property rights 
 are involved.® But where property rights are endan- 
 gered, the fact that the acts are criminal will not pre- 
 vent the court from exercising its jurisdiction. The 
 United States supreme court, in a leading case, has laid 
 down the rule as follows: "Something more than the 
 threatened commission of an offense against the laws 
 of the land is necessary to call into exercise the injunc- 
 tive powers of the court. There must be some inter- 
 ferences, actual or threatened, with property or rights 
 of a pecuniary nature; but when such interferences ap- 
 pear the jurisdiction of a court of equity arises, and is 
 not destroyed by the fact that they are accompanied 
 by or are themselves violations of the criminal law."^ 
 
 § 477. Applications of the Principle. — The instances of 
 the exercise of this jurisdiction are many and various. 
 All that is necessary is a state of fact which ordinarily 
 gives rise to a right for injunctive relief. Thus, an 
 injunction has been granted to restrain a criminal tres- 
 
 8 Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212, 52 Am. St. 
 Eep. 622, 32 S. W. 1106; Cope v. District Fair Assn., 99 111. 489, 39 
 Am. Eep. 30; Ocean City Assn. v. Schurch, 57 N. J. Eq. 268, 41 Atl. 
 914; People ex rel. L'Abbe v. District Court of Lake Co., 26 Colo. 
 386, 58 Pac. 604, 46 L. E. A. 850; Tiede v. Schneidt, 99 Wis. 201, 
 74 N. W. 798. 
 
 4 Cope V. District Fair Assn., 99 111. 489, 39 Am. Eep. 30; People 
 ex rel. L'Abbe v. District Court of Lake Co., 26 Colo. 382, 58 Pac. 
 604, 46 L. E. A. 850. 
 
 5 Ocean City Assn. v. Schurch, 57 N. J. Eq. 268, 41 Atl. 914; 
 York V. Yzaguairre, 31 Tex. Civ. App, 26, 71 S. W. 563. 
 
 6 Tiede v. Sehneidt, <!9 Wis. 201, 74 N. W. 798. 
 
 7 In re Dels, 158 U. S. 5G4, 15 Sup. Ct. 900, 39 L. ed. 1092.
 
 793 INJUNCTION; CRIMINAL ACTS. i 478 
 
 pass on oyster beds;^ and to restrain so-called "ticket 
 scalpers" from disposing of "round-trip" tickets in vio- 
 lation of a penal statute.® Recently the courts have 
 entertained many applications for injunctive relief 
 against criminal acts by labor leaders and organiza- 
 tions; and the same principle has been applied. Thus, 
 it is now clearly settled that a court of equity will en- 
 join the criminal intimidation of workingmen, in order 
 to protect the property interests of their employers.^^ 
 Similarly, the court will enjoin strikers from commit- 
 ting criminal acts of violence.^^ And likewise, it will 
 restrain a criminal conspiracy of any number of people 
 to injure property.^^ These applications of the rule, 
 while recent, are still in accordance with well-estab- 
 lished equitable principles, and will be discussed fully 
 and in detail in a later chapter. 
 
 § 478. Same — Public Nuisance — Suits by Individuals. — 
 One of the most frequent applications of the principle 
 is to suits by individuals to restrain public nuisances. 
 It is a familiar principle of law that an individual can- 
 not maintain a suit to abate or to recover damages for 
 a public nuisance unless he suffers some special dam- 
 
 8 Jones V. Oemler, 110 Ga. 202, 35 S. E. 375. 
 
 9 Nashville & St. L. Ry. Co. v. McConnell, 82 Fed. 65 (dictum). 
 See post, chapter XXIX. 
 
 10 Cons. Steel & Wire Co. v. Murray, 80 Fed. 811; Vegelahn v. 
 Guntner, 167 Mass. 92, 57 Am, St. Eep. 443, 44 N. E. 1077, 35 L. E. 
 A. 722; Hamilton-Brown Shoe Co. v, Saxey, 131 Mo. 212, 52 Am. 
 St. Eep. 622, 32 S. W. 1106. See post, chapter XXVIII. 
 
 11 Cumberland Glass Mfg. Co. v. Glass Bottle Blowers' Assn., 
 59 N. J. Eq. 49, 46 Atl. 208; Coeur d'Alene Cons. & Min. Co. v. 
 Miners' Union of Wardner, 51 Fed. 260, 19 L. E. A. 382. See post, 
 chapter XXVIII. 
 
 12 Arthur v. Oakes, 63 Fed. 310, 11 C. C. A. 209, 25 L. E. A, 
 414; Elder v. Whitesides, 72 Fed. 724; Davis v. Zimmerman, 91 
 Hun, 489, 36 N. Y. Supp. 303; Longshore Printing Co. v. Howell, 
 26 Or. 527, 46 Am. St. Eep. 640, 38 Pac. 547, 28 L. E. A. 464.
 
 § 478 EQUITABLE REMEDIES. 794 
 
 age different and other from that suffered by the rest 
 of the community. Hence it follows that equity will 
 not enjoin a public nuisance at the suit of an individual 
 unless he has suffered or is likely to suffer such dam- 
 age as would entitle him to maintain an action at 
 law. "Where the injury resulting from the nuisance 
 is, in its nature, irreparable, as when loss of health, 
 loss of trade or destruction of the means of subsistence, 
 or permanent ruin to property will ensue from the 
 Avrongful act or erection, courts of equity will inter- 
 fere by injunction, in furtherance of justice and the 
 violated rights of property."^^ Thus, a party specially 
 injured may enjoin the maintenance of a house of ill- 
 fame, although it be a crime to use property for such a 
 purpose.^* Likewise, a person who would suffer a 
 special injury by an explosion may obtain an injunction 
 to restrain the criminal storage of nitroglycerin within 
 the limits of a city.^^ Again, an injunction will be 
 granted to a person specially injured to prevent the re- 
 moval of a wooden building from outside to within the 
 fire limits of a town in violation of an ordinance,^ ^ or 
 to restrain the erection of such a building within the 
 fire limits,^ '^ where the act if carried out would amount 
 to a nuisance; but the mere violation of the ordinance 
 is no ground for relief unless the acts themselves ac- 
 tually constitute a nuisance.^* Again, an individual 
 
 13 Wahle V. Eeinback, 76 111. 322; Barrett v, Mt. Greenwood 
 Cemetery Assn., 159 111. 385, 50 Am. St, Eep. 168, 42 N. E. 891, 31 
 L. R. A. 109. See post, chapter XXIV, 
 
 14 Cranford v. Tyrrel, 128 N. Y. 341, 28 N. E. 514. But see 
 Neaf V. Palmer, 103 Ky. 496, 45 S. W. 506, 41 L. E. A. 219, 
 
 15 People's Gas Co. v. Tyner, 131 Ind. 277, 31 Am. St. Eep. 433, 
 31 N. E. 59, 16 L. R. A. 443. 
 
 16 Kaufman v. Stein, 138 Ind. 49, 46 Am. St. Eep. 368, 37 N. E. 
 333. 
 
 17 Villagje of St. John v. McFarlan, 33 Mich. 72, 20 Am. Eep. 671. 
 
 18 Village of New Rochelle v. Lang, 75 Hun, 608, 27 N. Y. Supp.
 
 795 INJUNCTION; CRIMINAL ACTS. fi 478 
 
 may obtain an injunction to restrain the criminal sale 
 of liquor when he is specially injured thereby. In such 
 a case a clear injury to property greater than that suf- 
 fered by the general public must be shown.^^ 
 
 While, independently of statute, a private individual 
 cannot maintain an action to restrain a public nuisance 
 unless he has suffered special, pecuniary or property in- 
 jury, it seems that there is no objection to such an ac- 
 tion without such injury when a statute authorizes it. 
 *'It is surely within the power of the legislature to desig- 
 nate the persons at whose suit a nuisance may be en- 
 joined and abated. The reason for the rule which 
 formerly obtained, that a private action will not lie for 
 a public nuisance without special damages, was that 
 to authorize private actions would create a multiplicity 
 of suits, one being as well entitled to bring an action as 
 another. But because the enforcement of a statute may 
 create a multiplicity of actions is no ground for de- 
 claring it unconstitutional There can be no 
 
 doubt that it is within the power of the legislature to 
 designate the person or class of persons who may main- 
 tain actions to restrain and abate public nuisances, and 
 when that is done the action is for all purposes an ac- 
 tion instituted in behalf of the public, the same as 
 though brought by the attorney general or public pros- 
 ecutor."^" Under such a statute, the plaintiff in the 
 case cited was granted an injunction to restrain de- 
 fendant from criminally selling liquor, although the 
 plaintiff could show no special damage. 
 
 COO; Waupun v. Moore, 34 Wis. 450, 17 Am. Rep. 446; Inc. Town 
 of Rochester v. Walters, 27 Ind. App. 194, 60 N. E. 1101. 
 
 19 O'Brien y. Harris, 105 Ga. 732, 31 S. E. 745. 
 
 20 Littleton v. Fritz, 65 Iowa, 488, 54 Am, Rep. 19, 22 N. W. 
 641.
 
 I 479 EQUITABLE EEMEDIES. 796 
 
 § 479. Same — Same — Suit by Government — As a public 
 nuisance concerns the public generally, it is the duty 
 of the government to take measures to abate or enjoin 
 it. Hence it follows that the government can obtain an 
 injunction to restrain a public nuisance, without show- 
 ing any property right in itself. The duty of protect- 
 ing the property rights of all its citizens is sufficient to 
 warrant issuing the injunction. Therefore, wherever a 
 public nuisance is shown, equity must enjoin it at the 
 suit of the government. "Every place where a public 
 statute is openly, publi«|ly, repeatedly, continuously, 
 persistently and intentionally violated, is a public nui- 
 sance."^^ This definition does not include all public 
 nuisances, by any means; but it includes a class par- 
 ticularly covered by the principle under discussion. In- 
 junctions obtained by the state to restrain the criminal 
 sale of intoxicating liquors are among the most numer- 
 ous of this class. Writs of this kind have been granted 
 to restrain violations of prohibition laws,^^ and to re- 
 strain the maintenance of gambling-houses.^* Where 
 
 21 State V. Crawford, 28 Kan. 726, 42 Am. Eep. 182. 
 
 22 State V. Crawford, 28 Kan. 726, 42 Am. Eep. 182; State v. 
 Greenway, 92 Iowa, 472, 61 N. W. 239; State v. Marston, 64 N. H. 
 603, 15 Atl. 222, The case of Manor Casino v. State (Tex.), 34 
 S. W. 769, seems contra to the proposition laid down in the text. 
 The court there held that in the absence of statute equity will not 
 enjoin the criminal sale of liquor at the suit of the state, unless 
 property rights are involved. It is possible that the cases may be 
 reconciled on the theory that the sale of liquor is not of itself a 
 nuisance. While the legislature cannot declare every act a nuisance 
 (State v. Saunders, 66 N. H. 39, 25 Atl. 588, 18 L. E. A. 646), it can 
 declare such an act aa selling liquor to be a nuisance. When an 
 act is a nuisance it prima facie affects property rights, and hence it 
 can clearly be enjoined. Thus, where criminally selling liquor ia 
 a public nuisance, as it apparently is in Kansas, Iowa and New 
 Hampshire, equity will interfere; where it ia not, equity will not 
 interfere. 
 
 23 State V. Noyes, 30 N. H. 279. The case of State v. Patterson, 
 14 Tex. Civ. App. 465, 37 S. W. 478, which seema contra, may b«
 
 yyr INJUNCTION; CRIMINAL ACTS. { 480 
 
 prizefii^liting is regarded as a public nuisance, the state 
 may enjoin individuals from taking any part in such 
 contests, and from in any way aiding therein.^* Of 
 course, cases involving purprestures^^ or in which the 
 defendant is emptying refuse into a public stream,^^ are 
 clearly within the general principle. 
 
 § 480. Same — Right of Government to Enjoin Act An- 
 alogous to Nuisance — While the right of the government 
 to obtain an injunction to restrain criminal acts is not 
 confined strictly to cases of nuisance, it would seem 
 that it should be limited to cases closely analogous. 
 Such relief, if applied to criminal acts in general, would 
 supersede the criminal law and deprive parties of the 
 right to a jury trial. Where the property rights of 
 many citizens are involved, it is proper for the govern- 
 ment, on their behalf, to invoke the powers of equity; 
 and it would seem that only in such a case should the 
 jurisdiction be assumed.^'^ By sta,tute, it is provided 
 
 supported on the theory that gambling is not a public nuisance in 
 Texas. 
 
 24 Columbian Athletic Club v. State, 143 Ind. 98, 52 Am. St. Eep. 
 407, 40 N. E. 914, 28 L. E. A. 727. 
 
 25 Attorney-General v. Cohoes Co., 6 Paige Ch. 133, 29 Am. Dec. 
 755. 
 
 26 People V. Truckee Lumber Co., 116 Cal. 397, 58 Am. St. Eep. 
 183, 48 Pac. 374, 39 L. E. A. 581. 
 
 27 In the case of In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 
 L. ed. 1092, the court said: "Every government, intrusted by the 
 very terms of its being with powers and duties to be exercised and 
 discharged for the general welfare, has a right to apply to its own 
 courts for any proper assistance in the exercise of the one and the 
 discharge of the other, and it is no sufficient answer to its appeal 
 to one of those courts that it has no pecuniary interest in the mat- 
 ter. The obligations which it is under to promote the interest of 
 all and to prevent the wrongdoing of one, resulting in injury to the 
 general welfare, is often of itself sufficient to give it a standing in 
 court." While this language is broad, it will be observed upon 
 examination of the case that property rights both of the government
 
 S 481 EQUITABLE REMEDIES. 798 
 
 that violations of the interstate commerce act may be 
 restrained at suit of the United States.^* 
 
 § 481. Exception — ^Libel. — An exception to the general 
 rule that equity will restrain a crime at suit of an in- 
 dividual when property rights are involved, exists in 
 cases of libel. The early English cases laid down the 
 rule as stated, and held that equity has no jurisdiction 
 to restrain libels.^^ It will be noticed, however, that in 
 most cases of libel property rights are only indirectly, 
 if at all, involved. But in cases where a man is directly 
 libeled in his business, there is a question of property 
 right Eealizing this, the later English cases, aided 
 somewhat by statute, have receded from their former 
 view, and will now restrain a libel when it directly 
 affects business.^^ The American states, however, have 
 generally refused to adopt the later rule. The rule was 
 established in cases in which no property right was di- 
 rectly involved,^^ and is now so firmly settled, that it 
 has been expressly held that libels will not be enjoined 
 even for the protection of property.^^ This outcome is 
 
 and of many of its citizens were involved. It is believed that the 
 jurisdiction will not be extended to crimes which, while injurious 
 to society, do not directly affect any property right. 
 
 28 See United States v. Elliott, 62 Fed. 801; Toledo, A. A. & N. 
 M. R. Co. V. Penn. Co., 54 Fed. 730, 19 L. E. A. 387; and see post, 
 chapter XXVIII. 
 
 29 Prudential Assur. Co. v. Knott, L. E. 10 Ch, App. 142. 
 
 30 Thorley's Cattle-food Co. v. Massam, 14 Ch. D. 763; Thomas v. 
 Williams, 14 Ch. D. 864; Loog v. Bean, 26 Ch. D. 306. 
 
 31 Brandreth v. Lance, 8 Paige Ch. 24, 34 Am. Dec. 368; Boston 
 Diatite Co. v. Florence Mfg. Co., 114 Mass. 69, 19 Am. Eep. 310. 
 
 32 De Wick v. Dobson, 18 App. Div. 399, 46 N. Y. Supp. 390; Kidd 
 V. Horry, 28 Fed. 773. A compromise between the English and the 
 American views was reached in Beck v. Eailway Teamsters' Pro- 
 tective Union, 118 Mich. 497, 74 Am. St. Eep. 421, 77 N. W. 13, 
 42 L. E. A. 407. It was there held that a court of equity will re- 
 strain the publication of a libel consisting of a boycotting circular,
 
 799 INJUNCTION; CRIMINAL ACTS. S 481 
 
 in part the result of a desire not to place any more re- 
 strictions upon the exercise of free speech than are ab- 
 solutely necessary. 
 
 when the acts are accompanied by threats, express or covert, or 
 intimidation and coercion, and the accomplishment of the purpose 
 will result in irreparable injury to property. See, further, on this 
 Bubject, post, chapter XXTX.
 
 i 482 EQUITABLE EEMEDIES. 800 
 
 CHAPTER XXII. 
 
 INJUNCTION AGAINST WASTE. 
 
 ANALYSIS. 
 
 § 482. Origin and nature of the jurisdiction. 
 
 J 5 483-490. Extent of equity jurisdiction. 
 
 § 483. Legal waste. 
 
 § 484. Waste must be threatened. 
 
 § 485. Legal waste which is not subject to injunction. 
 
 § 486. Must the injury be irreparable? 
 
 § 487. Plaintiff's title. 
 
 § 488. Title in dispute. 
 
 § 489. Equitable waste — Definition. 
 
 § 490. Extent of jurisdiction. 
 
 § 491. Eelief against waste in equity. 
 
 § 492. Parties for and against whom injunction will issue. 
 
 § 4S2. Origin and Nature of the Jurisdiction. — "Waste is 
 the destruction or improper deterioration or material 
 alteration of things forming an essential part of the in- 
 heritance, done or suffered by a person rightfully in 
 possession by virtue of a temporary or partial estate, — 
 as, for example, a tenant for life or for years. The right- 
 ful possession of the wrongdoer is essential, and con- 
 stitutes a material distinction between waste and tres- 
 pass."^ The jurisdiction of the common law over waste 
 was curiously defective. Originally an action at com- 
 mon law for waste lay only against a defendant whose 
 estate was created by law, on the theory that as to es- 
 tates created by the owner of the fee, provision against 
 waste should be made against it by himself or else it 
 was his own default. This narrow jurisdiction was 
 
 1 4 Pom. Eq. Jur., § 1348. I'or the substance of this and the foui 
 sueceoding ehnpters the author is indebted to Mr. J. T. Burchanx 
 formerly instructor in Equity in Stanford University.
 
 801 INJUNCTION AGAINST WASTE. § 482 
 
 early enlarged by statutes,- which, however, gave a rem- 
 edy only in favor of one having an immediate estate of 
 inheritance, so that a person holding any estate less 
 than a fee, or one whose estate in fee Avas preceded by a 
 smaller estate, had still no remedy at law.^ It is evi- 
 dent that in such a situation there was a twofold reason 
 for the interposition of equity to prevent waste. In the 
 first place, from its very nature waste was a wrong 
 such that the legal remedy of damages was inadequate. 
 It involved as its chief characteristic a serious injury to 
 real property, and, on this ground alone, a preventive 
 remedy was necessary. It is true that the writ of 
 estrcjiement was a preventive remedy, but at best it was 
 only an auxiliary to real actions to preserve property 
 pendente lite/ and hence had no application to the or- 
 dinary case of waste in which no question was made as 
 to the tenant's right to possession. In the second place, 
 the fact that there was in a large class of cases no rem- 
 edy at all at law, furnished a sufficient ground for the 
 jurisdiction of equity — at least in those cases.^ Of the 
 two reasons, the first was the controlling one, however, 
 and the second was apparently often regarded as re- 
 quiring some explanation to prove that it was not an 
 obstacle to, rather than a ground of, equity jurisdiction.® 
 
 2 Statutes of Marlebridge (52 Hen. Ill, c. 23) and Gloucester (6 
 Edw. I, c. 5). 
 
 3 2 Black. Com., 282, 283; 3 Id. 227. 
 
 4 3 Black. Com., 225-227. 
 
 5 See suggestion of counsel in Castlemain v. Craven, 22 Vin. Abr. 
 523; Skelton v. Skelton, "2 Swanst. 170. 
 
 6 Farrant v. Lovell, 3 Atk. 723; Perrot v. Perrot, 3 Atk. 94; 
 Kane v. Vanderburgh, 1 Johns. Ch. 11. The explanation of this 
 attitude of the chancery courts doubtless lay in the fact that equity 
 jurisdiction over torts was primarily to furnish a better remedy for 
 a legal wrong. Hence in determining the existence of the wrong, 
 and from that inferring the right to a remedy, the equity judges 
 were accustomed to follow the rule of law. Consequently they felt 
 
 Equitable Kemedies, Vol. I — 51
 
 S 483 EQUITABLE REMEDIES. 802 
 
 The fact that waste is nearly always an irreparable in- 
 jury has resulted in the full establishment of the rem- 
 edy by injunction, whether in a case where there is or 
 is not a legal remedy; and because prevention is of 
 greater efficacy than damages after the event, the equi- 
 table remedy has not only virtually superseded the old 
 common-law "action of waste," but has to a great ex- 
 tent taken the place of the "action on the case" for dam- 
 ages,''^ which might have supplied the lack of a remedy 
 at law to those remainder-men who could not comply 
 with the strict requisite of the statute of Gloucester.* 
 
 § 483. Extent of Equity Jurisdiction — Legal Waste. — In 
 entering upon a fuller discussion of the jurisdiction of 
 equity over waste it will be convenient to follow the 
 lines of old and familiar classification, and treat, first 
 of Legal Waste^ which is the waste that courts of law 
 always recognized (though they did not in all cases give 
 a remedy for it), and, next, of Equitable Waste^ which 
 is the waste that, by the rules of the common law, is 
 permitted to a tenant in possession, but which courts of 
 equity nevertheless do not allow. It has already been 
 pointed out that from its very definition waste gen- 
 erally falls within that class of injuries which courts 
 of equity deem irreparable and therefore not to be ade- 
 quately remedied at law.^ Hence injunctions against 
 
 the need of explaining why they gave a remedy where the courts 
 of law did not. So, Lord Hardwicke, in Perrot v. Perrot, supra, 
 said it was an "accident" that there was no legal remedy in the 
 class of cases under discussion, and Lord Nottingham, in Skelton 
 V. Skelton, 2 Swanst. 170, took the distinction that the tenant who 
 coniinitted waste in such cases had "only impunitatem" and not "a 
 right in the thing itself." 
 
 7 4 Pom. Eq. Jur., § 1348. 
 
 8 See cases collected in 1 Ames, Cases in Eq. Juris., 467, note 1, 
 468, note 1. 
 
 » In Vandemark v. Schoonmaker, 9 Hun, 11, the court used the
 
 803 INJUNCTION AGAINST WASTE. § 483 
 
 legal waste have always been common, and the jurisdic- 
 tion extensive. Illustrations are injunctions against 
 cutting timber,^* changing, destroying or removing 
 buildings, or the erection of new buildings,^^ taking 
 minerals, gas or stone,^^ changing the character of 
 land,^^ taking away crops, or manure,^ ^ and improper 
 modes of tillage.^ ^ It should be noted in this connec- 
 
 following language: "Waste has always been a subject of chan- 
 cery jurisdiction. It is generally irreparable in its results, and hence 
 especially within the restraining power of that court. And it has 
 been well remarked that courts of equity will exercise a liberal juris- 
 diction in respect to waste, and in its restraint." 
 
 10 Duvall V. Waters, 1 Bland (Md.), 569, 18 Am. Dec. 350; Sarles 
 V. Sarles, 3 Sandf. Ch. 601; Kerlin v. West, 4 N. J. Eq. 449; Kane v. 
 Vanderburgh, 1 Johns. Ch. 11; Hawley v. Clowes, 2 Johns. Ch. 122; 
 Kyle V. Ehodes, 71 Miss. 487, 15 South. 40; State v. Judge, 52 La. 
 Ann. 1037, 26 South. 769; Jones v. Britton, 102 N. C. 166, 9 S. E. 
 554, 4 L. E. A. 178; Elliott v. Boyd, 40 Or. 326, 67 Pac. 202. 
 
 11 Jungerman v. Bovee, 19 Cal. 354; Palmer v. Young, 108 HI. 
 A pp. 252; Maddox v. White, 4 Md. 72, 59 Am. Dec. 67; Snyder v. 
 Hopkins, 31 Kan. 557, 3 Pac. 367; Woods v. Early, 95 Va. 307, 28 
 S. E. 374; Tate v. Field, 57 N. J. Eq. 53, 40 Atl. 206; Brock v. Dole, 
 66 Wis. 142, 28 N. W. 334; Davenport v. Magoon, 13 Or. 1, 57 Am. 
 Eep. 1. 
 
 12 Whitfield V. Bewit, 2 P. Wms. 240; Gerkins v. Kentucky Salt 
 Co., 100 Ky. 734, 66 Am. St. Kep. 370, 39 S. W. 444; Smith v. City 
 Council of Eome, 19 Ga. 89, 83 Am. Dec. 298; Chambers v. Alabama 
 Iron Co., 67 Ala. 353; Binswanger v. Henninger, 1 Alaska, 509; Will- 
 iamson V. Jones, 43 W. Va. 562, 64 Am. St. Eep. 891, 27 S. E. 411, 38 
 L. E. A. 694. 
 
 13 Pulteney v. Shelton, 5 Ves. 259, note; Onslow v. , 16 
 
 Ves. 173; Snyder v. Hopkins, 31 Kan. 557, 3 Pac. 367. 
 
 14 Pulteney v. Shelton, 5 Ves. 259, note; Onslow v. , 16 
 
 Ves. 173; Manning v. Ogden, 70 Hun, 399, 24 N. Y. Supp. 70; Baker 
 V. National Biscuit Co., 96 111. App. 228; Ashby v. Ashby (N. J.), 40 
 Atl. 118. 
 
 15 Wilds V. Layton, 1 Del, Ch. 226, 12 Am. Dec. 91. Miscellaneous 
 cases which may be added to those given above are, Bathurst v. 
 Burden, 2 Bro. C. C. 84 (damaging fish-ponds); Pratt v. Brett, 2 
 Madd. 62 (sowing mustard seed, and other waste of common char- 
 acter); West Ham etc. Board v. East London Water Works Co., 
 69 L. J. Ch. 257, [1900] 1 Ch. 624, 84 L. T., N. S., 85, 48 Week. 
 Eep. 284 (covering land with rubbish); Clagon v, Veasey, 7 Ired,
 
 5 483 EQUITABLE REMEDIES. 804 
 
 tion, however, that American courts frequently refuse 
 to enjoin acts which the English courts would enjoin 
 almost as a matter of course, not because the jurisdic- 
 tion of equity is narrower in scope in this country, but 
 because the substantive law of waste is different and 
 more liberal. Courts of equity in denying injunctions 
 have often had occasion to point out the differences. 
 As said by the court in one case : "The law of waste, as 
 understood in England, would have made it impossible 
 for tenants to cultivate the wild lands of this country" ;^® 
 and in another: "To apply the ancient doctrines of 
 waste to modern tenancies, even for short terms, would 
 in some of our cities and villages put an entire stop to 
 the progress of improvement, and would deprive the 
 tenant of those benefits which both parties contemplated 
 at the time of the demise, without any possible advan- 
 tage to the owner of the reversion. "i'^ In the spirit of 
 this language, knowing that conditions in this country 
 often made acts really beneficial which, according to 
 the strict definition of waste, fell easily within its scope, 
 American judges have refused to enjoin the cutting of 
 timber according to the rules of good husbandry,'* 
 
 Eq. 173 (removal of a slave to parts unknown); Lehman v. Logan, 
 7 Ired, Eq. 296 (same as preceding case); Du Pre v. Williams, 5 
 Jonea Eq. 96 (same as preceding case). Additional cases of the 
 same kinds as given above are collected in 1 Ames, Cases in Eq. 
 Juris., 461, note. 
 
 16 Crowe v. Wilson, 65 Md. 479, 57 Am. Rep. 343, 5 Atl. 427. See, 
 also, 4 Pom. Eq. Jur., § 1348, note 1. 
 
 17 Winship v. Pitts, 3 Paige, 259. 
 
 18 Board of Supervisors of Warren Co. v. Gang, 80 Miss. 76, 31 
 South. 539; McLeod v. Dial, 63 Ark. 10, 37 S. W. 306; McCullough v. 
 Irvine's Exrs., 13 Pa. St. 438; Lynn's Appeal, 31 Pa. St. 44, 72 Am. 
 Dec, 721; Morris v. Knight, 14 Pa. Super. Ct. 324; Kidd v. Dennison, 
 
 6 Barb. 10; Alexander v. Fisher, 7 Ala. 514; Shine v. Wilcox, 1 Dev. 
 & B. Eq. 631; Crowley v. Timberlake, 2 Ired. Eq. 460. See Disher 
 V. Disher, 45 Neb. 100, 63 N. W. 368.
 
 605 INJUNCTION AGAINST WASTE. § 484 
 
 or the erection of new^^ or the destruction of old build- 
 ings.^** 
 
 § 484. Waste must he Threatened. — The purpose of this 
 jurisdiction is, to prevent future acts of waste, and 
 also, though rarely, to restore things to their former 
 condition.^^ Hence, in general, an injunction will not 
 be granted after the acts complained of are finished,^* 
 nor to prevent the removal of the personalty produced 
 by acts of waste, such as timber cut.^^ In determining 
 the propriety of granting its preventive remedy, equity 
 requires a plaintiff to show a need of its protection. 
 He must establish that the defendant has been guilty 
 of acts or words which justify a reasonable apprehen- 
 sion on his part of future waste. "The court never 
 grants injunctions on the principle that they will do 
 no harm to the defendant, if he does not intend to com- 
 mit the act in question — but if there be no ground for 
 the injunction, it will not support iV^^ And a plain- 
 tiff who does not show a sufficient case of threatened 
 waste will have his bill dismissed with costs.^^ This 
 is not saying that the courts make a plaintiff's way 
 hard or impose on him a heavy burden. For a single 
 act of waste is considered a sufficient threat of further 
 acts of the same kind f^ or mere uttered threats, or acta 
 
 19 Winship v. Pitts, 3 Paige, 259. 
 
 20 Crowe v. Wilson, 65 Md. 479, 57 Am. Eep. 343, 5 Atl. 427; Melma 
 V. Pabst Brewing Co., 104 Wis. 7, 46 L. E. A. 478, 79 N. W, 738. 
 
 21 See infra, § 491. 
 
 22 Owen V. Pord, 49 Mo. 436; Southard v. Morris Canal Co., 1 
 N. J. Eq. 519. 
 
 23 Bishop of London v. Webb, 1 P. Wms. 527; Watson v. Hunter, 
 5 Johns, Ch. 169, 9 Am. Dec. 295. 
 
 24 Lord Elden in Coffin v. Coffin, Jacob, 70. 
 
 25 Clement v. Wheeler, 25 N. H. 361. 
 
 26 Barry v. Barry, 1 Jacob & W. 651; Sarles v. Sarles, 3 Sandf. 
 Ch. 601.
 
 I 485 EQUITABLE REMEDIES. 806 
 
 which, though not themselves waste, yet signify an 
 intention to commit waste, will support an injunction.-'' 
 And it is no defense to a bill for an injunction for a 
 defendant who has been guilty of waste to say that he 
 does not intend to do so again,^* or that he has com- 
 mitted no waste since the filing of the bill,^^ or for one 
 who has threatened waste to say that he does not mean 
 to carry out his threat.^*^ Such declarations do not, 
 under the circumstances, overturn the case which the 
 plaintiff has made, and the injunction will issue in spite 
 of them. 
 
 § 485. Legal Waste Which is not Subject to Injunction. 
 In view of the extensive jurisdiction of equity over 
 waste it is sometimes said that, in general, an injunction 
 may be obtained to stay waste in all cases where an 
 action of waste would lie at common law.^^ The 
 qualifications to this statement of the scope of equity's 
 jurisdiction over waste should be made at this point. 
 They are three in number: First, equity will not en- 
 join permissive waste,^^ The reason for this holding is 
 not made clear in the cases. In one of them^^ counsel 
 argued, that to grant such injunctions "would tend to 
 
 27 Jackson v. Cator, 5 Ves. 688; CofBn v. Coffin, Jacob, 70; London 
 V. Warfield, 5 J. J. Marsh. (Ky.) 196; Sheridan v. McMiillen, 12 
 Or. 150, 6 Pac. 497; Duvall v. Waters, 1 Bland Ch. (Md.) 569, 18 
 Am. Dee. 350, 357; Palmer v. Young, 108 111. App. 252, citing Pom, 
 Eq. Jur., §§ 237, 1348. 
 
 28 Packington v. Packington, Dick. 101; Sowerby v. Fryer, L. R. 
 8 Eq. 417. 
 
 29 Attorney-General v. Burrows, Dick. 128. 
 
 30 Packington v. Packington, supra. 
 
 31 Duvall V. Waters, 1 Bland Ch. (Md.) 569, 18 Am. Dec. 350, 357. 
 
 32 Castlemain v. Craven, 22 Vin. Abr. 523; Powys v, Blagrave, 4 
 De Gex, M. & G. 448, 458; Wood v. Gaynon, Amb. 395; Cannon v. 
 Barry, 59 Miss. 289, 303. But see Bathurst v. Burden, 2 Bro. C. C. 
 64; Caldwall v. Baylis, 2 Mer. 408; Williams v. Peabody, 8 Hun, 
 271; 2 Story, Eq. Jur., § 917. 
 
 33 Wood V. Gaynon, supra.
 
 807 INJUNCTION AGAINST WASTE. § 486 
 
 harass tenants for life, and jointresses, and suits of this 
 kind would be attended with great expense in deposi- 
 tions about the repairs." A more satisfactory reason 
 would seem to be the same one which leads to the re- 
 fusal to decree specific performance of contracts to 
 make repairs, viz., the practical difflcultv of giving ade- 
 quate supervision to the performance of the decree. 
 Second, equity will not enjoin ameliorating waste, which 
 is any act that though technically waste, yet in fact im- 
 proves the inheritance.^^ The reason for refusing the 
 injunction in such cases is obvious. And, third, equity 
 will not enjoin trivial acts of waste, but will require 
 that substantial damage be shown.^^ 
 
 § 486. Must the Injury be Irreparable? — The last pre- , 
 ceding statement immediately suggests the inquiry 
 whether a showing of even substantial damage is 
 enough to justify an injunction against waste. Does 
 not the usual rule that a legal wrong will be enjoined 
 only when the legal remedy is inadequate ^pplj here, 
 and must not the injury therefore be irreparable? It 
 would seem that in assuming jurisdiction over waste 
 the courts have not always had this fundamental in- 
 quiry in mind; or else have considered it not the test of 
 jurisdiction. Hence injunctions have been granted 
 when, tested by the above rule, it would seem they 
 should have been denied, as when the waste consisted 
 in carrying away personal property not possessing any 
 peculiar qualities or special value.^^ And in such cases 
 
 34 Doherty v. Allman, L. E. 3 App. Cas. 709; Meux v. Cobley, [1892] 
 2 Ch. 253; Mollineux v. Powell, 3 P. Wms. 268n (F). 
 
 35 Mollineux v. Powell, 3 P. "Wms. 268ii (F); Barry v. Barry, 1 
 Jacob & W. 651; Doherty v. Allman, L. E. 3 App. Cas. 709; Birch- 
 Wolfe V. Birch, L. E. 9 Eq. 683. 
 
 36 Pulteney v. Shelton, 5 Ves. 259, note; Onslow v. 16 
 
 Ves. 173; Georges Creek etc. Co. v. Detmold, 1 Md. Ch. 371.
 
 § 487 EQUITABLE EEMEDIES. 808 
 
 some American courts have taken the contrary view.^'^ 
 If prohibited by a covenant in a lease, it seems that the 
 fair weight of authority holds in favor of granting the 
 injunction against any waste, whether causing irrepar- 
 able injury or not.^^ 
 
 § 487. Plaintiff's Title. — A groat deal has always been 
 said in the cases about the title which a plaintiff who 
 is seeking an injunction against waste must show, and 
 of the effect on plaintiff's right to the injunction of a 
 dispute as to title between him and the defendant. It 
 is to be noted that there are here two distinct questions, 
 which have not always been kept clearly apart. The 
 first is as to the showing of title which a plainti-i must 
 make in his bill to entitle him to relief, assuming his 
 allegations of title to be admitted ; it is the question of 
 title which is raised by a demurrer to the bill as being 
 insufficient in the allegations of title. The second is 
 raised when the plaintiff's allegations of title, sufficient 
 in themselves, are disputed by the defendant. In an- 
 swer to the first question it can be said that the courts 
 
 37 Gregory v. Hay, 3 Cal. 332; Greathouse v. Greathouse, 46 W. 
 Va. 21, 32 S. E. 994. The question does not seem to Lave arisen 
 often, doubtless because of the fact (already suggested) that waste 
 is generally, from its very nature, a serious injury to realty, and 
 hence obviously within the class of acts called irreparable. It is 
 interesting to note in this connection and in view of the difference of 
 holdings of modern courts on the point in trespass cases, that so long 
 ago as 1792 Lord Thurlow, in Smallman v. Onions, 3 Brown Ch. 621, 
 held the insolvency of the defendant a sufficient ground for enjoin- 
 ing waste. 
 
 38 Tipping V. Eckersley, 2 Kay & J. 264; Steward v. Winters, 4 
 Sandf. Ch. 587; Frank & Co. v. Bounneman, 8 W. Va, 462; Barret 
 V. Blagrave, 5 Ves. 555; and see note to Maddox v. White, 4 Md. 
 72, in 59 Am. Dec. 67, 70. The ground of the jurisdiction in such 
 cases is probably to avoid multiplicity of suits for a continuing 
 breach of covenant. This reason may reconcile Gregory v. Hay, 3 
 Cal. 332, in which case an injunction against violation of a lease 
 was refused.
 
 B09 INJUNCTION AGAINST WASTE. § 487 
 
 require the plaintiff to set out his chain of title fullv 
 and to support it by positive evidence.^^ Hence Lord 
 Thurlow in an early case refused to grant a tem- 
 porary injunction because the plaintiff made affidavit 
 generally that he was entitled to a fee simple and did 
 not set out a particular title. And shortly afterwards 
 Lord Eldon refused a motion for injunction because, 
 though the plaintiff alleged his title sufficiently, yet his 
 affidavits supported it only as a matter of belief on 
 plaintiff's part, the court saying there ought to be "posi- 
 tive evidence of an actual title." The reason for this 
 rule is stated in a recent American case as follows: 
 "This rule is a simple recognition of the general x^'in- 
 ciple that one is not entitled to invoke the extraordinary 
 poAvers of a court of equity unless he can establish in 
 a manner satisfactory to the law the fact that he will^*^ 
 suffer an irreparable injury in his estate. Unless the 
 estate be his, he can suffer no injury, and unless the 
 title be in him there is no estate."^^ In other words, 
 for a plaintiff to obtain standing in a court of equity 
 to enjoin waste, he must make a prima facie showing 
 of title in himself. It is sometimes said that a plain- 
 tiff must show a "clear title" upon "unquestionable evi- 
 
 39 Whitelegg v. Whitelegg, 1 Bro. C. C. 57, by Lord Thurlow; Davis 
 V. Leo, 6 Ves. 784, by Lord Eldon; Wearin v. Munson, 62 Iowa, 466, 
 17 N. W. 746; Denning v. Corwin, 4 Wend. 208. In the last case 
 cited a part of the reason for refusing a temporary injunction was 
 that it was consistent with plaintiff's allegation of title that the 
 defendants were tenants in common with him and therefore not 
 wrong-doers. See also. Field v, Jackson, Dick. 599. 
 
 40 The word "may," it is submitted, would be a better one here. 
 
 41 Flannery v. Hightower, 97 Ga. 592, 25 S. E. 371. It should be 
 said that the language quoted was used in support of the holding 
 that a mere dispute as to title between plaintiff and defendant per 
 ee precludes the granting of a temporary injunction — a proposition 
 which, it will be shown, is not supported by the sound weight of 
 authority.
 
 S 488 EQUITABLE REMEDIES. 810 
 
 dcnce"*^ — a requirement which seems more strirt tlian 
 is demanded either on principle or on authority, and 
 the application of which would prevent the granting of 
 an injunction in any case whenever there is a substan- 
 tial dispute as to title between plaintiff and defendant 
 
 § 488. Title in Dispute.— And this is the state of facts 
 which raises the second question above mentioned. In 
 the definition of waste at the beginning of this chapter 
 it is pointed out that the material distinction between 
 waste and trespass in equity lies in the fact that waste 
 is committed by one rightfully in possession, trespass, 
 by one wrongfully in possession or not in possession at 
 all. This is a purely technical distinction, and hence 
 identical acts will in one case be waste, in another, 
 trespass. Influenced by this identity of substance, it 
 has been an inveterate habit of equity judges and law- 
 yers since the time of Lord Eldon^^ to speak of acts as 
 "waste" when with strict observance of the technical 
 distinction they would have called them trespass. It 
 is clear that in cases of waste, strictly, since it involves 
 privity of title and rightful possession of defendant, dis- 
 putes as to title will not often be present. And a scru- 
 tiny of the cases shows this to be true, most of those in 
 which there have been decision or dictum as to the effect 
 of a dispute concerning title on the granting of an in- 
 junction to stay "waste" being really cases of trespass. 
 A fuller discussion of the subject is therefore reserved 
 for the chapter on Trespass. It may be sufficient to 
 point out here that, if there is really a substantial dis- 
 pute as to title, the injunction prayed, and the only 
 
 42 See Flannery v. Hightower, supra, and cases collected in notes 
 to Whitelegg v. Whitelegg, supra, and Davis v. Leo, supra; High on 
 Injunctions, § 651. 
 
 43 Pillsworth V. Hopton, 6 Ves. 51.
 
 811 INJUNCTION AGAINST WASTE. 8 489 
 
 one proper to grant, generally, is a temporary injunc- 
 tion pending the settlement of the dispute; that a 
 stronger case of apprehended injury must be shown to 
 entitle a plaintiff to a temporary than to a permanent 
 injunction, because of the injury which the injunction 
 will have done the defendant if he eventually prove title 
 in himself ;^^ and, finally, that if the above conditions 
 are complied with, though the authorities are not uni- 
 form, the injunction will issue.^^ 
 
 § 489. Equitable Waste — Definition. — Equitable waste 
 arose out of the different effect given in law and in 
 equity to the phrase "without impeachment of waste," 
 or equivalent words, in a lease, or the settlement or 
 devise creating an estate less than a fee. Courts of law 
 held that such a phrase gave to the tenant the same ab- 
 solute power of changing or destroying the inheritance 
 that a tenant in fee would have. Courts of equity early 
 "set up a superior equity"^® and began to restrain acta 
 
 44 See Lusting v. Conn, 1 Ir. Ch. 273. 
 
 45 Case cited in Mogg v, Mogg, Dick. 670; Duvall v. Waters, 1 
 Bland (Md.), 569, 18 Am. Dec. 350; Woods v. Riley, 72 Miss. 73, 
 IS South. 384; Baker v. National Biscuit Co., 96 111. App. 228; 
 Meadow Valley Mining Co. v. Dodds, 6 Nev. 261; Littlejohn v. Leffing- 
 well, 40 App. Div. 13, 57 N, Y. Supp. 839; Dooley v. Stringham, 4 
 Utah, 107, 7 Fac. 405 (a case of real waste, dispute being as to ex- 
 tent of plaintiff's estate), citing 2 Pom. Eq. Jur., §§ 917, 919; 4 Pom. 
 Eq. Jur., 1348. Contra, Nevitt v. Gillespie, 1 How. (Miss.) 108, 
 26 Am. Dec. 696; Poindexter v. Henderson, 1 Miss. (Walk.) 176, 12 
 Am. Dec. 550; Lewis v. Christian, 40 Ga. 187; Flannery v. High- 
 tower, 97 Ga. 592, 25 S, E. 371; Blackwood v. Van Vleet, 11 Mich. 
 252. See further cases cited infra under same subject in chapter 
 on Trespass. It should be added that the holding of an early case 
 (Lathropp v. Marsh, 5 Ves, 259) that a landlord cannot enjoin waste 
 by a tenant unless he has brought ejectment is discredited: Note 
 2 to the case, 5 Ves. 261; Kane v, Vanderburgh, 1 Johns. Ch. 11; 
 Eden on Injunctions, 237, note (b). 
 
 46 Per Lord Hardwicke, in Eolt v. Lord Somerville, 2 Eq. Cas. 
 Abr. 759. See, also, opinion of Lord Turner in Micklethwait v. 
 Micklethwait, 1 De Gex & J. 504, 524.
 
 § 41)0 EQUITABLE EEMEDIES. 812 
 
 by the tenant that were really destructive, and after 
 more or less diversity of opinion^' finally adopted as 
 the equitable waste which w^ould not be allowed even 
 to a tenant without impeachment of waste, "that which 
 a prudent man would not do in the management of his 
 own property."** This definition makes the phrase 
 "without impeachment of waste" nothing more than a 
 corrective of the close restrictions which the common 
 law put on the rights of a tenant who held impeachable 
 of waste, and is strikingly similar to the definitions of 
 legal waste often given by American courts.** 
 
 § 490. Extent of Jurisdiction — The cases of equitable 
 waste are almost, if not exclusively, confined to destruc- 
 tion or removal of buildings,^" carrying away of the 
 soil,^^ cutting ornamental or sheltering trees or 
 
 47 See opinion of Lord Nottingham in Skelton v, Skelton, 2 Swanst. 
 170; of Lord Parker in Bishop of London v. Web, 1 P. Wms. 527; 
 of Lord Hardwicke in Aston v. Aston, 1 Ves. Sr. 264; and of Lord 
 Eldon in Smythe v. Smythe, 2 Swanst. 251. 
 
 48 Per Lord Campbell in Turner v, Wright, 3 De Gex, F. & J. 
 234, 243. For substantially similar descriptions of equitable waste, 
 see Baker v. Sebright, L. E. 13 Ch. D. 179, 186; Stevens v. Rose, 
 69 Mich. 259, 37 N. W. 205, 210; Buncombe v. Felt, 81 Mich. 332, 45 
 N. W. 1004, 1006. In this last case the defendants had conveyed 
 land, taking back a lease for life which contained the following 
 clause: "And it is expressly understood that the second parties 
 ars to have as full and complete control of said premises .... as 
 though such conveyance had not been made." Yet they were en- 
 joined from stripping the land of timber. Lord Campbell also pointed 
 out in Turner v. Wright, supra, that no sensible distinction in waste 
 can be based upon the malice of the defendant, though it is often 
 said that equity will enjoin a tenant from committing malicious 
 waste. 
 
 49 See cases cited, a7ite, § 483. 
 
 50 Vane v. Barnard, 2 Vern, 738; Bolt v. Somerville, 2 Eq. Cas. 
 Abr. 759; Anonymous, Mos. 237; Williams v. Day, 2 Cas. in Ch. 32; 
 Stevens v. Rose, 69 Mich. 259, 37 N. W. 205 (action on the case 
 for damages under statute [How. St. Mich., c. 271, § 1], but decided 
 according to principles of equitable waste). 
 
 61 Bishop of London v. Web, 1 P. Wms. 527.
 
 813 INJUNCTION AGAINST WASTE. § 490 
 
 shrubs,^^ cutting saplings,'^^ and stripping the land of 
 timber.^^ Of these various classes the first two need 
 no special mention, the cases in them being very few 
 and founded on obvious reasons. "Ornamental" as ap- 
 plied to trees and shrubs in matters of equitable waste 
 is a technical term. "The question is not, whether the 
 timber is or is not ornamental; but the fact to be de- 
 termined is that it was planted for ornament ; or, if not 
 originally planted for ornament, was, as we express it, 
 left standing for ornament by some person having the 
 absolute power of disposition."^^ It is also held 
 that cutting trees planted to exclude certain objects 
 from view will be enjoined, on the same principle;^® 
 and that the owner of the fee may change ornamental 
 timber into non-ornamental timber.^^ The principle 
 would, therefore, seem to be, that whatever trees or 
 shrubbery the last owner of the fee manifests an inten- 
 tion to have left standing, is within the rule as to equi- 
 table waste. The cutting of saplings is enjoined on 
 the ground that as they are not fit for timber it is de- 
 spoiling the estate as a prudent owner would not do.^^ 
 
 52 Packington's Case, 3 Atk. 215; Coffin v. Coffin, Jacob, 70; V^omb- 
 well V. Belasyse, 6 Ves. (2d ed.) 110a, note; Morris v. Morris, 15 
 Sim. 505 (injunction granted, though house about which the trees 
 had formerly stood had been removed; cf. Micklethwait v. Mickle- 
 thwait, 1 De Gex & J. 504); Wellesley v. Wellesley, 6 Sim. 497; Ste- 
 vens V. Kose, 69 Mich. 2'59, 37 N. W. 205. And see other cases col- 
 lected in 1 Ames, Cases in Eq. Juris., 469, note 2. 
 
 53 Aston V. Aston, 1 Ves. Sr. 264; O'Brien v. O'Brien, Amb. 107; 
 Chamberlayn v. Dummer, 1 Bro. C. C. 166; Strathmore v. Bowes, 
 2 Bro. C. C. 88; Allard v. Jones, 15 Ves. 605. 
 
 54 Bishop of Winchester's Case, 1 Kolle Abr. 380 (J, 3); Dun- 
 combe v. Felt, 81 Mich. 332, 45 N. W. 1004, 
 
 55 Per Lord Eldon in Wombwell v. Belasyse, 6 Ves. (2d ed.) 110a, 
 note. See, also, Downshire v. Sandys, 6 Ves. 107; Barges v. Lamb, 
 16 Ves. 174, 185. 
 
 66 Day V. Merry, 16 Ves. 375, 
 
 67 AHcklethwait v. Micklethwait, 1 De Gex & J. 504. 
 
 58 This was admitted to be equitable waste by Lord Eldon, who
 
 S 491 EQUITABLE REMEDIES. 814 
 
 Stripping the land of timber is likewise enjoined be- 
 cause fair husbandry forbids it.^^ 
 
 § 491. Relief Against Waste in Equity. — The only re- 
 lief against legal waste for which one is entitled to come 
 into equity is an injunction. This injunction is al- 
 most always prohibitive, but in a proper case it may be 
 mandatory for the restoration of the thing destroyed.*'* 
 But though one can secure standing in equity with ref- 
 erence to legal waste only because of his right to an in- 
 junction, he is also in addition given an accounting for 
 the waste already done. This further relief is given on 
 the broad general principle of equity that when once it 
 has acquired jurisdiction of a case it will give complete 
 relief, even though part of such relief be purely legal 
 in its nature, rather than to compel a plaintiff to bring 
 another suit at law in order to obtain the full remedy 
 to which he is entitled.^^ This accounting is given only 
 as an incident to the injunction, which is the basis of 
 plaintiff's right in equity, and therefore it cannot be 
 prayed alone; and if the injunction is refused the right 
 to the accounting falls with it.®^ The proceeds of such 
 waste to go to the remainder-man in fee, though there be 
 intermediate remainder-men for life or years, following 
 
 was inclined to restrict cases of equitable waste more than later 
 judges: Smythe v, Smythe, 2 Swanst. 251. 
 
 59 Duncombe v. Felt, 81 Mich. 332, 45 N. W. 1004. 
 
 60 Vane v. Lord Barnard, 2 Vern. 738, Free. Ch. 454; Eolt v. Lord 
 Somerville, 2 Eq, Cas. Abr. 759; Bass v. Metropolitan etc. Co., 82 
 Fed. 857, 27 C. C. A. 147, 39 L. E. A. 711; Klie v. Von Broock, 56 
 N. J. Eq. 18, 37 Atl. 469. 
 
 61 Jesus College v. Bloom, Amb. 54, 3 Atk. 262; Castlemain v. 
 Craven, 22 Vin. Abr. 523; Jungerman v. Vovee, 19 Cal. 354; William- 
 son V. Jones, 43 W. Va. 562, 64 Am. St, Eep. 891, 27 S. E. 411, 38 
 L. E. A. 694. 
 
 62 Jesus College v. Bloom, Amb. 54, 3 Atk. 262; Smith v. Cooke, 
 3 Atk. 378; Watson v. Hunter, 5 Johns. Ch. 169, 9 Am. Dec, 295; 
 Lippincott V. Barton, 42 N. J. Eq, 272, 10 Atl. 884.
 
 815 INJUNCTION AGAINST WASTE. § 492 
 
 the legal rule that the person in whom is the fee has 
 title to, and may bring trover for, the personalty which 
 results from acts of waste.®^ The accounting for equi- 
 table waste differs from that given for legal waste in 
 one particular. Since equitable waste is wholly a 
 creation of the courts of equity, there is no legal rem- 
 edy for it whether it is past or future. Hence, one may 
 file his bill for an accounting for equitable waste with- 
 out praying, or being entitled to, an injunction.®* The 
 accounting which equity gives for waste, both legal 
 and equitable, differs from the damages a court of law 
 gives for the former iji that it is estimated according to 
 the profits which the wrong-doer has received, and not 
 according to the damage done to the estate nor the 
 value of the personalty produced by the acts of waste f^ 
 and no allowance is made for the defendant's labor or 
 expense. ®® 
 
 § 492. Parties for and Against Whom Injunction will Is- 
 sue. — It remains to note the estates of parties for and 
 against whom injunctions to prevent waste will issue. 
 No citations will be needed to show that a reversioner or 
 remainder-man in fee may enjoin waste. So may a con- 
 tingent remainder-man,^^ a trustee to preserve contiu- 
 
 63 Whitfield V. Bewit, 2 P. Wms. 240; Eolt v. Somerville, 2 Eq. 
 Cas. Abr. 759; Castlemain v. Craven, 22 Vin. Abr. 523; Gent V. 
 Harrison, Johns. 517; Birchwolfe v. Birch, L. E. 9 Eq. 683. 
 
 64 Whitfield V. Bewit, 2 P. Wms. 240; Lansdowne v. Lansdowne, 
 1 Madd. 116; Lushington v. Boldero, 15 Beav. 1; Gent v. Harrison, 
 Johns. 517. 
 
 65 Lee V. Alton, 1 Ves. 78, 82; Morris v. Morris, 2 De Gex & J. 
 323; Tate v. Field, 57 N. J. Eq. 53, 40 Atl. 206. 
 
 66 Sweeney v. Hanley, 126 Fed. 97. 
 
 67 Brashear v. Macey, 3 J. J. Marsh. 89; University v. Tucker 
 31 W. Va. 621, 8 S. E. 410; Cannon v. Barry, 59 Miss. 289; Peterson 
 V. Ferrell, 127 N. G. 169, 37 S. E. 189; Kallock v. Webb, 113 Ga. 
 762, 39 S. E. 339.
 
 § 492 EQUITABLE KEMEDIES. 816 
 
 gent remainders,^^ or a tenant for life whether with or 
 without impeachment of waste.®^ A mortgagee or a 
 purchaser at a foreclosure sale may also enjoin waste 
 by a mortgagor in possession who threatens to do acts 
 which impair his security.^** The injunction will not 
 issue, however, unless the suflflciency of the security is 
 threatenedJ^ But in determining this point, the courts 
 aim to protect the mortgaged property up to "the value 
 which was the basis of the contract between the par- 
 tics at the time it was entered into."^^ Equity juris- 
 diction over mortgaged property rests on a broader 
 ground than in most cases of waste, since courts of 
 equity have very fully taken the entire subject of mort- 
 gages into their hands. Hence mortgages of personal 
 property are given the same protection as those of 
 realtyJ^ On the same principle of protecting a secur- 
 es Garth v. Cotton, 1 Ves. 524, 556, Dick. 183, 1 Lead. Cas. Eq. 
 (4th Am. ed.) 955; Perrot v. Perrot, 3 Atk. 94. 
 
 09 Perrot v. Perrot, 3 Atk, 94; Eolt v. Somerville, 2 Eq. Cas. Abr. 
 759; Davis v. Leo, 6 Ves. 784; Halstead v. Coen, 31 Ind. App. 302, 67 
 N. E. 757. 
 
 70 Parsons v. Hughes, 12 Md. 1; Bunker v. Locke, 15 Wis. 635; 
 Humphreys v. Harrison, 1 Jacob & W. 581; Usborne v. Usborne, 
 Dick. 75; Brady v. Waldron, 2 Johns. Ch. 148; Phoenix v. Clark, 
 6 N. J. Eq. 447; Taylor v. Collins, 51 Wis. 123, 8 N. W. 22; Moses v, 
 Johnson, 88 Ala. 517, 16 Am. St. Eep. 58, 7 South. 146; Eobinson v. 
 Kussell, 24 Cal. 467; Mitchell v. Amador etc. Co., 75 Cal. 464, 17 
 Pac. 246; Lavenson v. Standard Soap Co., 80 Cal. 245, 13 Am. St. 
 Eep. 147, 22 Pac. 184; Minneapolis Trust Co. v. Veshulst, 74 111. 
 App. 350; Life Ins. Co. v. Bigler, 79 N. Y. 568; Beaver Lumber Co. 
 V. Eccles, 43 Or. 400, 99 Am. St. Eep. 759, 73 Pac. 201; Terry v. 
 Eobbins, 122 Fed. 725. 
 
 Ji Fairbank v. Cudworth, 33 Wis. 358; Smith v. Frio County (Tex. 
 Civ. App.), 50 S. W. 958; Moriarty v. Ashworth, 43 Minn. 1, 19 Am. 
 St. Eep. 203, 44 N. W. 531; Beaver etc. Co. v. Eccles, 43 Or. 400, 
 99 Am. St. Eep. 759, 73 Pac. 201; Eobinson v. Eussell, 24 Cal. 467. 
 
 72 King V. Smith, 2 Hare, 239, 243; Moriarty v. Ashworth, 43 
 Minn. 1, 19 Am. St. Eep. 203, 44 N. W. 531. 
 
 73 McGormick v. Hartley, 107 Ind. 248, 6 N. E, 357; Brown v. 
 Stewart, 1 Md. Ch. Dec. 87; Clagett v. Salmon, 5 Gill & J. 314; Bagnail
 
 817 INJUNCTION AGAINST WASTE. § 492 
 
 itv, a vendor of land who retains title may enjoin waste 
 bj a vendee in possession,'^^ and a vendee, because of 
 his equitable estate, may enjoin a vendor in posses- 
 sion. ''^ So, also, the security of an attachment cred- 
 itor"*^ or judgment creditor,'^'^ or the lien which a land- 
 lord has for renf^^ will be protected by injunction. It 
 was formerly thought that, because of the nature of 
 their legal rights, an injunction would not issue be- 
 tween tenants in common for any ordinary acts of 
 waste either legal or equitable, but that acts of waste 
 so destructive as to go beyond the requisites of either 
 of these might be enjoined.'^^ But the cases show that 
 the exercise of equity jurisdiction is now more liberal, 
 and any acts of waste by one tenant in common that are 
 inconsistent with prudent management of the estate 
 or that jeopardize the interest of his co-tenants will be 
 enjoined.^'^ An underlessee will be enjoined from 
 
 V. Villar, L. E. 12 Ch. D, 812; Parsons v. Hughes, 12 Md. 1; State 
 V. Northern Cent. Ey. Co., 18 Md. 193; V^alker v. Eadford, 67 Ala. 
 446. 
 
 74 Moses Brothers v. Johnson, 88 Ala. 517, 16 Am. St. Eep. 58, 
 7 South. 146; Taylor v. Collins, 51 Wis. 123, 8 N. W. 22; May v. 
 Williams, 22 Ky. Law Eep, 1328, 60 S. W. 525; Shickell v. Berry ville 
 etc. Co., 3 Va. Sup. Ct. 45; Miller v. Waddinghan;, 91 Cal. 377, 27 
 Pac. 750, 13 L. K, A. 680. And see cases collected in 1 Ames, Casea 
 in Eq. Juris., 222, note 2, 483, note 1. 
 
 75 Smith & Fleek's Appeal, 69 Pa. St. 474; Chambers v, Alabama 
 Iron Co., 67 Ala. 353. 
 
 76 Camp V. Bates, 11 Conn. 51, 27 Am. Dec. 707; People v. Van 
 Buren, 136 N. Y. 252, 32 N. E. 775, 33 N. E. 743, 20 L. E. A. 446; 
 Moritz V. Kaliske, 31 Abb. N. C. 49, 28 N. Y. Supp. 380. 
 
 77 Jones V. Britton, 102 N. C. 166, 9 S. E. 554, 4 L. E. A. 178; 
 Hughlett V. Harris, 1 Del. Ch. 349, 12 Am. Dec. 104; Vandemark v. 
 Schoonmaker, 9 Hun, 16; Tessier v. Wyse, 3 Bland Ch. (Md.) 28. 
 
 78 Garner v. Cutting, 32 Iowa, 547; Carson v. Electric etc. Co., 
 85 Iowa, 44, 51 N, W. 1144. 
 
 79 Smallman v. Onions, 3 Bro. C. C. 621; Hale v. Thomas, 7 Ves. 
 689; Twort v, Twort, 16 Ves. 128. 
 
 80 Hawley v. Clowes, 2 Johns. Ch. 122; Woods v. Early, 95 Va. 
 307, 28 S. E. 374; Arthur v. Lamb, 2 Drew. & S. 430; Southworth v. 
 
 Equitable Eemedies, Vol. I — 52
 
 f 492 EQU-ITABLE EEMEDIES. 818 
 
 waste at suit of the s^roimd landlord.^^ A tenant in 
 tail will not be restrained from waste, because he may 
 at any time bar the entail and give himself a fee;^- but 
 tenant in tail after possibility of issue extinct is sub- 
 ject to be restrained from committing equitable waste.*^ 
 And the owner in fee of an estate subject to an execu- 
 tory devise will also be enjoined from committing equi- 
 table waste.^'* Tenant by the curtesy is subject to in- 
 junction against all waste.**^ The injunction against 
 waste may include anyone who is colluding with the 
 tenant in committing it.^^ 
 
 Smith, 27 Conn. 355, 71 Am. Dec. 72; Connole v. Boston etc. Co., 20 
 Mont. 523, 52 Pac. 263; Morrison v. Morrison, I'l-J. In. l. nt,'^. -jy 
 S. E. 901; Wi.liamson v. Jones, 43 W. Va. 562, 64 Am. St. Kep. 891, 
 27 S. E. 411, 38 L. E. A. 694; State v. Judge, 52 La. Ann. io3, 26 
 South, 769; Mott v. Underwood, 148 N. Y. 463, 51 Am. St. Rep. 
 711, 42 N. E. 1048; AshLy v. Ashby (N. J.), 40 Atl. 118; Binswanger 
 V. Henninger, 1 Alaska, 509. 
 
 81 Farrant v. Lovel, 3 Atk. 723; Maddox v. White, 4 Md. 72, 59 
 Am. Dec. 67. 
 
 82 Turner v. Wright, 2 De Gex, F. & J. 234; Savile's Case, Casea 
 temp. Talbot, 16 (cited); Attorney-General v. Marlborough, 3 Madd. 
 498. Contra, Wallington v. Taylor, 1 N, J. Eq. 314, 318. 
 
 83 Williams v. Day, 2 Cas. in Ch. 32; Attorney-General v. Marl- 
 borough, 3 Madd. 498. 
 
 84 Turner v. Wright, 2 De Gex, F & J. 234; Wallington v. Tay- 
 lor, 1 N. J. Eq. 314, 318; Gannon v. Peterson, 193 111. 372, 62 N. E. 
 210, 55 L. R. A. 701. Contra, Matthews v. Hudson, 81 Ga. 120, 12 
 Am. St. Eep. 305, 7 S. E. 286. 
 
 85 Ware v. Ware, 6 N. J. Eq. 117. 
 «6 Eodgers v. Eodgers, 11 Barb. 595.
 
 819 INJIjNCTIONS AGAINST TRESPASS. i 494 
 
 CHAPTER XXIII. 
 
 INJUNCTIONS AGAINST TRESPASS. 
 
 ANALYSIS. 
 
 § 493. Nature of the jurisdiction. 
 
 §§ 49-i-499. Extent of the jurisdiction. 
 
 § 495. IrreparaLle injury. 
 
 § 496. Continuous or repeated trespasses. 
 
 § 497. Insolvency of defendant. 
 
 § 498. Miscellaneous cases. 
 
 § 499. Eminent domain. 
 
 § 500. What plaintiff must allege. 
 
 § 501. Threatened trespass. 
 
 S§ 502-506. Dispute as to title, 
 
 § 502. General principles. 
 
 § 503. Defendant in possession enjoined from destraetitf 
 acts. 
 
 § 504. Defendant not enjoined from mere use. 
 
 § 505. Plaintiff in possession. 
 
 § 506. Establishment of title. 
 
 § 507. Possession, when given by injunction. ■ ■ 
 
 § 508. The balance of injury. 
 
 § 509. Personal remedy open to plaintiff. 
 
 § 510. Relief given. 
 
 § 511. Estoppel, laches, acquiescence. 
 
 § 493. Nature of the Jurisdiction. — The term "trespass*^ 
 as used in equity differs from waste in respect to the 
 privity of title between the plaintiff and the defendant, 
 and in respect to the rightfulness of the defendant's pos- 
 session of the land, which two facts constitute the tech- 
 nical requisites of waste. It differs from trespass in 
 law in that it does not require that plaintiff be either 
 entitled to, or actually in, possession, but includes also 
 cases in which plaintiff's action at law would be on 
 the case or in ejectment. At an early day the court
 
 { 494 EQUITABLE KEMEDIES. 820 
 
 of chancery refused to interfere and restrain any tres- 
 passer. Lord Thurlow broke through this rule, and 
 began to use the preventive relief against such wrongs. 
 He was followed by Lord Eldon,^ and the jurisdiction 
 is now firmly established in its principles, although 
 there is no little disagreement among the courts — and 
 especially the American courts — in applying these prin- 
 ciples.^ The ultimate criterion by which the jurisdic- 
 tion is determined is the inadequacy of the legal rem- 
 edy, but this the cases prove to be a somewhat flexible 
 standard. The ideal remedy in any perfect system of 
 administering justice would be that which absolutely 
 precludes the commission of a wrong, not that which 
 awards punishment or satisfaction for a wrong after it 
 is committed.^ Tried by this test all legal remedies are 
 inadequate, and if "adequacy of legal remedy" were 
 used in this sense by courts of equity they would en- 
 join any and all threatened trespasses, however trivial, 
 whether to realty or to personalty — a length, it is 
 hardly necessary to say, to which they have never gone. 
 
 § 494. Extent of the Jurisdiction. — Instead, the equity 
 courts have marked the limits of their jurisdiction far 
 short of this. Trespasses to personalty are not en- 
 joined at all, in general, on the ground that for a tres- 
 pass, even one so serious as to amount to complete de- 
 struction, the damages which a jury will award are au 
 
 1 Hamilton v. Worsefold, 10 Ves. 290, note (3). See opinions of 
 Lord Eldon in Hanson v. Gardiner, 7 Vea. 3U5j Thomas v. Oakley, 
 18 Ves. 184; Mitchell v. Dors, 6 Ves. 147. 
 
 2 4 Pom. Eq. Jur., § 1356. The subject of injunctions against tres- 
 pass is treated in the monographic note to Moore v. Halliday, 43 
 Or. 243, 99 Am. St. Kep. 724, 72 Pac. 801. 
 
 3 Pom. Eq. Jur., § 1357. This section of Pom. Eq. Jur. is quoted 
 CO this effect in Xenia Eeal Estate Co. v. Macy, 147 Ind. 568, 47 N. 
 E. 147.
 
 821 INJUNCTIONS AGAINST TRESPASS. § 494 
 
 adequate remedy.* And the same thing is true of tres- 
 passes to realty when they consist of single acts or of 
 occasional acts which are temporary in their nature 
 and effect, and which are of such nature that damages 
 as estimated by a jury will be adequate reparation.* 
 On the other side, speaking now affirmatively of the 
 many cases in which trespasses to realty are enjoined, 
 they can be divided into the following four classes; 
 1. The legal remedy is inadequate because the injury 
 is irreparable in its nature. 2. The legal remedy is in- 
 adequate because the trespass is continuous, or because 
 repeated acts of wrong are done or threatened, although 
 each of these acts, taken by itself, is not destructive. 
 3. The legal remedy is inadequate because the defend- 
 ant is insolvent. 4. The legal remedy is inadequate in 
 a miscellaneous class of cases because the courts of law 
 for one reason or another cannot give any or, at best, 
 not accurately estimated or sufficient damages, though 
 damages would be a perfectly adequate kind of rem- 
 edy. The four classes will be discussed in order. 
 
 4 This familiar rule does not require extensive citation of cases to 
 support it; see however, Kistler v. Weaver, 135 N. C. 388, 47 S. E. 
 478; Gannon v. Denney (Neb.), 97 N. W. 959. It is subject to an ex- 
 ception in the case of chattels of unique or peculiar qualities such 
 that damages for their injury or destruction would be an inadequate 
 remedy: Arundell v. Pliipps, 10 Ves. 139. See cases collected in 
 1 Ames, Eq. Juris., 532, note 2. 
 
 5 Indian Land & Trust Co. v. Shoenfelt (C. C. A.), 135 Fed. 484; 
 Kredo v. Phelps, 145 Cal. 526, 78 Pac. 1044; Griffith v. Hilliard, 64 
 Vt. 643, 25 Atl. 427; Smith v. Pettingill, 15 Vt. 82, 40 Am. Dec. 667; 
 Hunting v. Hartford St. Ry. Co., 73 Conn, 179, 46 Atl. 824; Peterson 
 V. Orr, 12 Ga, 466, 58 Am. Dec, 484; Putney v. Bright, 106 Ga. 199, 
 32 S. E. 107; Port Clark etc, Co. v. Anderson, 108 111. 643, 48 Am. 
 Eep. 545; Bridges v. Sargent, 1 Kan. App. 442, 40 Pac. 823;" Sims 
 V. City of Frankfort, 79 Ind. 446; Miller v. Burket, 132 Ind. 470, 32 
 N. E. 309; Cross v. Morristown, 18 N. J. Eq. 305; Worthington v. 
 Moon, 53 N. J. Eq. 46, 30 Atl. 251; Hart & Hoy v. Mayor etc. Albany, 
 9 Wend. 571, 24 Am. Dec. 165; Gates v. Johnstown Lumber Co., 172 
 Mass, 495, 52 N. E. 736; Garrett v. Bishop, 27 Or, 349, 4] Pac. 10;
 
 I 495 EQUITABLE EEMEDIES. 822 
 
 § 495. Irreparable Injury. — The term "irreparable" 
 has been often defined by the courts in varying lan- 
 guage.® It is believed that the characteristics which 
 
 Cresap v. Kemble, 26 W. Va. 603; Le Roy ▼. Wright, 4 Saw. 530, 
 Fed. Cas. No. 8273j Kennedy v. Elliott, 85 Fed. 832; Thorn v. Swee- 
 ney, 12 Nev. 251; Birmingham etc. Co. v. Birmingham etc. Co., 119 
 Ala. 137, 24 South. 502,' 43 L. R. A. 233; Washington etc. Co. v. Coeur 
 d'Alene etc. Co., 2 Idaho, 580, 21 Pac. 562; Moore v. Halliday, 43 
 Or. 243, 97 Am. St. Rep. 724, 72 Pac. 801; O'Neil v. City of McKeea- 
 port, 201 Pa. St. 386, 50 Atl. 920. 
 
 6 The following are examples of the more carefully worded defini- 
 tions: "Irreparable, as being beyond any method of pecuniary esti- 
 mation": Per Van Fleet, J., in Kellogg v. King, 114 Cal. 378, 55 Am. 
 St. Rep. 74, 46 Pac. 166. "An injury is irreparable when it is of 
 Buch nature that the injured party cannot be adequately compensated 
 therefor in damages, or when the damages which may result there- 
 from cannot be measured by any certain pecuniary standard": Per 
 Lyon, J., in Wilson v. City of Mineral Point, 39 Wis. 160. "The 
 word 'irreparable' means that which cannot be repaired, restored or 
 adequately compensated for in money, or where the compensation 
 cannot be safely measured": Per Brannon, J., in Bettman v. Ilorness, 
 42 W. Va. 433, 26 S. E. 271, 36 L. R. A. 566. 
 
 "In the application of this restriction much difficulty occurs in de- 
 fining what injury is irreparable. The word means that which can- 
 not be repaired, put back again, atoned for. The most absolute and 
 positive instance of it is the cutting down 'ornamental trees,' such 
 as the noble oaks in our State-House grove. 'A tree that is cut down 
 cannot be made to grow again.' But the meaning of the word 'irrep- 
 arable' pointed out by this example, is not that which has been 
 adopted by the courts either in England or in this state. Grass that 
 is cut down cannot be made to grow again, but the injury can be 
 adequately atoned for in money. The result of the cases fixes this 
 to be the rule: The injury must be of a peculiar nature, so that com- 
 pensation in money cannot atone for it; where from its nature it 
 may be thus atoned for, if in the particular case the party be in- 
 solvent, and on that account unable to atone for it, it will be irrep- 
 arable": Per Pearson, J., in Cause v. Perkins, 56 N. C, (3 Jones 
 Eq.) 177, 69 Am. Dec. 728, 730. In the leading case of Jerome v. 
 Ross, .7 Johns. Ch. 315, 332, 11 Am. Dec. 484, 487, 488, Chancellor Kent 
 defined "irreparable" as the "great and irremediable mischief, 
 which damages could not compensate, because the mischief reaches 
 to the very substance and value of the estate, and goes to the de- 
 struction of it in the character in which it is enjoyed." But that thig 
 definition of Chancellor Kent is far too narrow, in the light of 
 modern decisions, see 4 Pom. Eq. Jur., § 1357, and note 1.
 
 823 INJUNCTIONS AGAINST TRESPASS. | 495 
 
 the courts should seek as certainly marking an injury 
 as irreparable, and which the majority of the decisions 
 show to be its essential features, are: (1) That the in- 
 jury is an act which is a serious change of, or is de- 
 structive to, the property it affects either physically or 
 in the character in which it has been held and enjoyed. 
 (2) That the property must have some peculiar quality 
 or use such that its pecuniary value, as estimated by 
 a jury, will not fairly recompense the owner for the 
 loss of it.'^ In the application of this test, however, 
 there are many conflicting decisions. Thus, some 
 courts treat land as per se property of peculiar value 
 and will enjoin destructive trespasses to its substance 
 without regard to the question whether, in the particu- 
 lar case, it really does have any peculiar value or not. 
 By these courts it is made a subject for protection by 
 injunction, just as in cases of contract it is a subject 
 for specific performance without reference to its qual- 
 ity, use or value.^ Other courts, however, in similar 
 
 7 It will be observed ttat tbig definition is largely drawn from those 
 of Chancellor Kent in Jerome v. Eoss, and Pearson, Ch. J., in Gause 
 V. Perkins, quoted in the previous note. It attempts to describe 
 those trespasses which are from their nature beyond reparation in 
 money payment, such as a jury would give, and to exclude other cases 
 for which the legal remedy may, indeed, be inadequate, but for other 
 reasons than this. There is sometimes a tendency to make the term 
 "irreparable" virtually extensive enough to include all cases for 
 which the legal remedy is inadequate, as, for example, the statement 
 of Pearson, Ch. J., supra, that the insolvency of the defendant will 
 make trespass irreparable. See, also. Camp v. Dixon, 112 Ga. 872, 
 876-877, 38 S. E. 71, 52 L. E. A. 755. Cf. Elliott on Eoads and 
 Streets (2d ed.), § 665, and Wood on Nuisance (3d ed.), §• 778, The 
 meaning of "irreparable" does not preclude all possibility of money 
 compensation, such, for instance, as the plaintiff himself might fix. 
 See this point discussed in Dent v. Auction Mart Co., L. E. 2 Eq. 
 238. 
 
 8 See Thomas v. Oakley, 18 Ves. 184; Hexo v. Gill, L. E. 7 Ch. App. 
 699; Eichards v. Dower, 64 Cal. €2, 28 Pac. 113. And see, also, 
 Walker v. Emerson, 89 Cal. 456, 26 Pac. 968, in which the court en-
 
 i 495 EQUITABLE REMEDIES. b24 
 
 cases, have taken the attitude that the question, whether 
 an injury is irreparable or not, is an open matter of 
 fact to be inquired into in every case, and have refused 
 injunctions against destructive trespasses because the 
 value of the land injured was small, and it had no 
 peculiar use or quality for the owner.* So, too, in the 
 case of mining, the courts have sometimes applied the 
 test of irreparability to the particular case, and find- 
 ing that the owner had no use for the land beyond get- 
 ting its value from it in the shape of minerals, have 
 refused to grant the injunction when the defendant was 
 
 joined the taking of water from plaintiff's land by a ditch which de- 
 fendant dug on plaintiff's land for the purpose, saying: "Such an 
 act is an injury to the right, and if threatened to be continued should 
 be enjoined, whatever opinion persons other than the owner may have 
 about the extent of the damage that may result." In Kichards 
 V. Dower, supnij the bill was to enjoin the digging of a tunnel through 
 the plaintiff's land. The lower court found that the tunnel would 
 not cause irreparable injury, and refused the injunction. On appeal 
 this holding was reversed, the court, per Sharpstein, J., saying: "The 
 finding that the injury is not irreparable is inconsistent with the 
 findings which describe the character of the work which it is sought 
 to have enjoined." 
 
 9 Jerome v. Eoss, 7 Johns. Ch. 315, 11 Am. Dec. 484; Bassett v. 
 Salisbury etc. Mills, 47 N. H. 426; Ocean City E. Co. v. Bray, 55 
 N. J. Eq. 101, 35 Atl. 839; Crescent Min. Co. v. Silver King Min. 
 Co., 17 Utah, 444, 17 Am. St. Rep. 810, 54 Pac. 244; Schuster v. Myers, 
 148 Mo. 422, 50 S. W. 103; King v. Mullins, 27 Mont. 364, 71 Pac. 
 155; Harley v. Montana Ore Purchasing Co., 27 Mont. 388, 71 Pac. 
 407. These cases are not to be reconciled with those cited in the 
 previous note. In Crescent Min. Co. v. Silver King Min, Co., supra. 
 the trespass complained of was the laying and keeping of water pipes 
 in land of the plaintiff. Because the land was barren and rockv, 
 and of small value, the court held that the injury was not irrepar- 
 able, and refused the injunction, McCarty, J., dissenting, and cit- 
 ing Kichards v. Dower, supra, as indistinguishable. In King v. Mul- 
 lins, supra, the trespass complained of was the sinking of a shaft 
 in a mining claim. In both of these cases stress is laid on the fact 
 that the worthless soil dug up was not carried away, but left on the 
 owner's premises. But in Jerome v. Eoss, sripra\ the thing complained 
 of was the digging and carrying away of stone from the plaintiff's 
 land.
 
 825 INJUNCTIONS AGAINST TEESPASS. § 495 
 
 solvent, and thus was able to give tlie legal relief of 
 damages,^** although in England, and generally in 
 America, mining is a form of trespass that is gener- 
 ally considered as irreparable, and, as such, is en- 
 joined.^ ^ And the same thing may be said of the cut- 
 ting of or destruction of timber.^^ These conflicts in 
 
 10 Eice V. Looney, 81 HI. App. 537; Erskine v. Forest Oil Co., 80 
 Fed. 583; Deep Eiver Co. v. Fox, 4 Ired. Eq. (39 N. C.) 61; Kellar 
 V. Bullington, 101 Ala. 267, 14 South. 466. No English court has 
 acted on this view, though in a comparatively early case (Haight v. 
 Jaggar, 2 Coll. 231, decided in 1845), Bruce, V. C, said: "The de- 
 fendants .... are, it is true, by working the coal, taking away 
 the very substance of the property; which may, in a sense, be per- 
 haps called in this case, and might in others most certainly be, waste 
 or destruction; but, on the other hand, it is the only mode in which 
 the property in question can be usefully enjoyed or made available, 
 and may therefore, in a sense, perhaps, be deemed not more than tak- 
 ing the ordinary usufruct of the thing in dispute." 
 
 11 Mitchell V. Dors, 6 Ves. 147; Anderson v. Harvey's Heirs, 10 
 Gratt. 386; Merced Mining etc. Co. v. Fremont, 7 Cal. 317, 68 Am. 
 Dec. 262; Hamanond v. Winchester, 82 Ala. 470, 2 South. 892; Bett- 
 man v. Harness, 42 W. Va. 433, 26 S. E. 271, 36 L. E. A. 566; Moore 
 V. Jennings, 47 W. Va. 181, 34 S. E. 793; Erhardt v. Boaro, 113 U. 
 S. 537, 5 Sup. Ct. 565, 28 L. ed. 1116. In Erhardt v. Boaro, supra, 
 there was an application for a temporary injunction pending the set- 
 tlement of a dispute over a mining claim, the bill alleging that about 
 one hundred and fifty tons of ore containing gold and silver to the 
 value of $25,000 had been extracted, and that about one hundred tons 
 of it were still on the premises. In granting a temporary injunction 
 against further digging or removing the ore already dug, the court, 
 per Field, J., said: "It is now a common practice in cases where 
 irremediable mischief is being done or threatened, going to the de- 
 struction of the substance of the estate, such as the extracting of 
 ores from a mine, or the cutting down of timber, or the removal 
 of coal, to issue an injunction, though the title to the premises be 
 in litigation." 
 
 12 In Musch V. Burkhart, 83 Iowa, 301, 32 Am. St. Eep. 305, 48 N. 
 W. 1025, 12 L. E. A. 484, plaintiff sought to enjoin the setting of 
 boundary trees, alleging he would be damaged to the extent of $200. 
 In commenting on this allegation as to damages, the court said. 
 "But it does not follow that the damages would not be irreparable 
 within the meaning of the law. The trees cannot be replaced, nor 
 can their benefit to plaintiff and the comfort and satisfaction which
 
 I 495 EQUITABLE REMEDIES. 826 
 
 the cases thus result, not so much from different views 
 of what constitutes an irreparable injury, as an original 
 question, as from a different practice with reference 
 to distributing certain cases of the same general char- 
 acter in subject-matter, into fixed groups that shall be 
 
 he derives from them be accurately measured by a pecuniary stand- 
 ard A person is not obliged to suffer his property to be de- 
 stroyed at the will of another, even though he may be able to recover 
 ample pecuniary compensation therefor. This is especially true of 
 property like trees, planted for and adapted to a certain use, and 
 serving a sjiecial purpose. Their owner has an interest in them which 
 he may protect, and to be deprived of it without his consent would be 
 to suffer irreparable injury, within the meaning of the law." In- 
 junctions against cutting timber were granted in the following cases: 
 Courthope v. Mapplesden, 10 Ves. 290; Kinder v. Jones, 17 Ves. 110; 
 Neale v. Cripps, 4 Kay & J. 472; Lowndes v. Settle, 3 New Eep, 409, 
 o3 L. J. Ch. 451, 10 Jur., N. S., 226; Stanford v. Hurlestone, L. E. 
 9 Ch. App. 116; United States v. Guylard, 79 Fed. 21; King v, Stu- 
 art, 84 Fed. 546; King v. Campbell, 85 Fed. 814; Shipley v. Ritter, 
 7 Md. 408, 61 Am. Dec. 371; Smith v. Eock, 59 Vt. 232, 9 Atl. 551; 
 Griffith V. Hilliard, 64 Vt. 643, 25 Atl. 427; Crane v. Davis (Miss.), 
 21 South. 17; Daubenspeck v. Grear, 18 Cal. 443; Sapp v. Eoberts, 
 18 Neb. 299, 25 N. W. 96; Markham v. Howell, 33 Ga. 508; Powell 
 V. Cheshire, 70 Ga. 357, 48 Am. Eep. 572; Fluharty v. Mills, 49 W. 
 Va. 446, 38 S. E. 521; Camp v. Dixon, 112 Ga. 872, 38 S. E. 
 71, 52 L. E. A. 757, citing 4 Pom. Eq. Jur., § 1357; Eamey v. 
 Counts (Va.), 47 S. E. 1006; Newton v. Brown, 134 N. C. 439, 46 S. 
 E. 994; Sears v. Ackerman, 138 Cal. 583, 72 Pac. 171; Louisville etc. 
 Co. V. Gibson, 43 Fla. 315, 31 South. 230 (statutory); Houck 
 V. Patty, 100 Mo. App. 389, 73 S. W. 389. Injunctions against cut- 
 tinjT timber were refused in the following cases: Wilcox Lumber Co. 
 V. Bullock, 109 Ga. 502, 35 S. E. 52; Schoonovcr v. Bright, 24 W. Va. 
 C98; Watson v, Ferrell, 34 W. Va. 406, 12 S. E. 724; Curtin v. Stout 
 (W. Va.), 50 S. E. 810; Cause v. Perkins, 56 N. C. (3 Jones Eq.) 
 177, 69 Am. Dec. 728; Sharpe v. Loane, 124 N. C. 1, 32 S. E. 318; 
 Myers v. Hawkins, 67 Ark. 413, 56 S. W. 640; Woodford v. 
 Alcxnnder, 35 Fla. 333, 17 South. 658 (disapproved in Brown v. So- 
 lary, 37 Fla. 102, 19 South. 161); Carney v. Hadley, 32 Fla. 344, 37 
 Am. St. Eep. 101, 14 South. 4, 22 L. E. A. 233; Thatcher v. Humble, 
 67 Ind. 444. Observe that Georgia and West Virginia have some 
 decisions in which the injunctions were granted and others in which 
 they were refused, the special circumstances of the cases distinguish- 
 ing them. In Cause v. Perkins, supra, Pearson, J., said: "In tho
 
 827 INJUNCTIONS AGAINST TEESPASS. < 495 
 
 considered as per se cases of irreparable injury. As a 
 further source of conflict, there are a number of cases 
 which, when dealing with trespasses to real property, 
 tend to give to the term "irreparable" an enlarged sig- 
 nification, and make it virtually synonymous with 
 
 present condition of our country, does the cultivation of pine trees 
 for turpentine, or the cutting down of oak trees for staves, or cypress 
 trees for shingles, cause an irreparable injury — one which cannot be 
 compensated for in damages? The very purpose for which these 
 trees are used by the owners of land is to get from them turpentine, 
 staves and shingles for sale. It follows, therefore, as a matter of 
 course, that if the owner of the land recovers from a trespasser the 
 value of the trees that are used for those purposes, he thereby re- 
 ceives compensation for the injury, and it cannot in any sense of 
 the word be deemed irreparable." In Camp v. Dixon, supra, the 
 plaintiffs owned large bodies of timber and had invested large sums 
 of money in mills and other equipment. The defendants threatened 
 to denude the land of its timber, and as this would be the ruin of the 
 plaintiff's business, the court held that the facts of the case showed 
 irreparable injury, stronger than the ordinary one of cutting timber. 
 The case was also rested on the ground of preventing multiplicity of 
 suits, and on the fact that a jury's estimate of damages would be 
 conjectural. In Fluharty v. Mills, aiipra, the bill alleged that the 
 timber which the defendant was threatening to destroy was espe- 
 cially valuable to the land, and. that the taking away of the timber- 
 would permanently injure the land; this the court thought was a 
 Bui'.lcient showing of irreparable injury. But the same court, in Wat- 
 son V. Ferrell, supra, refused an injunction against cutting timber, 
 on the ground that irreparable injury was not shown, saying as to 
 this: "When we look further at the allegations of the bill we find 
 that he alleges that the greater portion of the land is in a state of 
 nature, and covered by a valuable growing timber, etc., which tim- 
 ber is very valuable, and makes such land much more valuable than 
 it would be without said growing timber, non constat, that the land 
 is not filled with coal, iron, and other minerals, or that the timber 
 constitutes its chief value; and there are no facts stated on the face 
 of the bill that would show that the plaintiff would suffer irreparable 
 injury by the cutting and removal of seventy-five or any number of 
 trees from said land when it is not alleged that the defendants are 
 insolvent." In Brown v. Solary, 37 Fla. 102, 19 South. 161, the 
 court, per Mabry, C. J., said: "When the value of land consists 
 chiefly, if not entirely, in the timber thereon, its destruction amounts 
 to irreparable injury, within the rule on the subject."
 
 ( 405 EQUITABLE EEMEDIES. 828 
 
 ''serious injury." ^^ Tliere are, of course, no particular 
 classes of cases to which irreparable injuries are con- 
 fined. Other illustrations are collected in the note.^* 
 
 13 In a recent case the court, after quoting the definition of Pear- 
 son J., in Uause v. Perkins, which has been given ante, note 6, 
 said: "This definition is fairly deducible from the earlier cases, but 
 it is entirely too narrow to meet the decisions of more modern 
 
 times In the light of modern decisions, an irreparable injury 
 
 may be said to be one which, either from its nature, or from the cir- 
 cumstances surrounding the person injured, or the financial condi- 
 tion of the person committing the injury, cannot be readily, ade- 
 quately, and completely compensated with money": Per Cobb, J., in 
 Camp V. Dixon, 112 (?a. 872, 38 S. E. 71, 73, 52 L. K. A. 757. See, 
 also. Champ v. Kendrick, 130 Ind. 549, 30 N. E. 787, citing Pom. Eq. 
 Jur., § 1357, and Lemmon v. Guthrie Center, 113 Iowa, 36, 86 Am. 
 St. Eep, 361, 84 Mo. 986. In this last case the court enjoined town 
 authorities from moving a building of the plaintiff, saying: "An ex- 
 amination of all the cases indicates a strong tendency to grant 
 equitable relief whenever the trespass permanently diminishes the 
 substance of the estate in that which constitutes its chief value, 
 without reference to the fact that the value may be measured in 
 money, on the ground that the plaintiff is entitled to have the iden- 
 tity and integrity of his estate preserved." 
 
 14 Injury to or removal of buildings: Pattou v. Moore, 16 W. Va. 
 428, 37 Am. Eep. 789; De Veney v. Gallagher, 20 N. J. Eq. 33; Echel- 
 kamp V. Schroder, 45 Mo. 505; Everett v. City of Marquette, 53 
 Mich. 450, 19 N. W. 140; Lemmon v. Town of Guthrie Center, 113 
 Iowa, 36, 86 Am. St. Eep. 361, 84 N. W. 986; Auckland v. Westmin- 
 ster Board, L. E. 7 Ch. App. 597; District Tp. of Lodomillo v. Dist. 
 Tp, of Cass, 54 Iowa, 115, 6 N. W. 163; Lewis v. Town of North 
 Kingstown, 16 E, I. 15, 27 Am. St. Eep. 724, 11 Atl. 173. Laying 
 out public roads over plaintiff's land: Erwin v. Fulk, 94 Ind. 235, 
 citing 4Pom. Eq. Jur., § 1357; Grigsby v. Burtnett, 31 Cal. 406 (cf. 
 Leach v. Day, 27 Cal. 643); Ballentine v. Town of Harrison, 37 N. 
 J. Eq. (10 Stew.) 560, 45 Am. Eep. 667. Grazing sheep on plaintiff's 
 land: Northern Pac. E. E. Co. v. Cunningham, 89 Fed. 594; Martia 
 V. Platte Valley Sheep Co. (Wyo.), 76 Pac. 571; Strawberry etc. Co. 
 V. Chipman, 13 Utah, 454, 45 Pac. 348; Dastervignes v. United States, 
 122 Fed. 30. Interference with graves: First Evangelical Church v. 
 Walsh, 57 111. 363, 11 Am. Eep. 21; Choppin v. Dauplin, 48 La. Ann. 
 1217, 55 Am. St. Eep. 313, 20 South. 681, 33 L. E. A. 133; Beatty v. 
 Kurtz, 2 Pet. 566, 7 L. ed. 521; Davidson v. Eeed, 111 111. 167, 53 
 Am. Eep. 613; Wormley v. Wormley, 207 111. 411, 69 N. E. 865. Ee- 
 moval and defacing of landmarks: Preston v. Preston, 85 Ky. 16, 2
 
 829 INJUNCTIONS AGAINST TRESPASS. § 496 
 
 § 406. Continuous or Eepeated Trespasses. — Tlie juris- 
 diction of equity to restrain continuous or repeated 
 trespasses rests on the ground of avoiding a repetition 
 of similar actions.^^ It is a basis of jurisdiction tliat 
 is frequently found in cases where the injury is also 
 irreparable. Very often, indeed, the injury is irrepa- 
 rable only because it is continuous or repeated, when 
 it would not be if temporary, and in such cases the in- 
 junction will issue as a matter of course.^^ For the 
 further discussion of this subject, it will be convenient 
 to consider, first, the cases in which the injury is the 
 result of a single act, or set of acts, of the defendant, 
 which afterwards operate by virtue of natural laws to 
 produce the injury; and, second, the cases in which 
 there are several or many acts of the defendant or de- 
 
 S. W. 501. Eemoval of a fence: Bolton v. McShane, 67 Iowa, 207, 
 25 N. W. 135 J Gilfillan v. Shattuck, 142 Cal. 27, 75 Pac. 646; Wolf etc. 
 Co, V. Lonyo, 132 Mich. 162, 102 Am. St. Rep. 412, 93 N, W. 251. 
 Beatty v. Kurtz, supra, is an excellent example of one of the clearest 
 kinda of irreparable injury. The bill was to enjoin the defendants 
 from removing tombstones and graves and dispossessing the plaintiffs 
 of the burying-ground. In granting the injunction, Story, J., said: 
 "This is not a case of a mere private trespass; but a public nuisance, 
 going to the irreparable injury of the Georgetown congregation of 
 Lutherans. The property consecrated to their use by a perpetual 
 servitude or easement, is to be taken from them, the sepulchres of 
 the dead are to be violated, the feelings of religion, and the senti- 
 ments of natural affection of the kindred and friends of the deceased 
 are to be wounded; and the memorials erected by piety or love, to the 
 memory of the good are to be removed, so as to leave no trace of 
 the last home of their ancestry to those who may visit the spot in fu- 
 ture generations.** An injury falling far short of this may, of course, 
 be irreparable. 
 
 15 4 Pom. Eq. Jur., § 1357. This entire class of cases is compre- 
 hended in the broader jurisdiction of equity to prevent multiplicity 
 of suits, for a consideration of which see 1 Pom. Eq. Jur., §§ 243- 
 275. 
 
 18 See, e. g., Griffith ▼. Hilliard, 64 Vt, 643, 25 Atl. 427; Kellogg 
 V. King, 114 Cal. 378, 55 Am. St. Rep. 74, 46 Pac. 166; Ellis v. Blu« 
 Mountain Forest Assn., 69 N. H. 385, 41 Atl. 856, 42 L. B. A. 570.
 
 § 496 EQUITABLE REMEDIES. 830 
 
 fendants which give rise to as many different causes of 
 actions. The distinction is roughly that between con- 
 tinuing and repeated trespasses, and is based on the 
 distinctions made in the cases themselves. If a tres- 
 pass is of the first class and produces substantial dam- 
 age to the plaintiff, the authorities are well agreed that 
 a i)roper case for an injunction is presented.^^ If, 
 however, the injury is little or nothing more than the 
 technical invasion of plaintiff's legal right without 
 substantial damage, there is a division among the 
 courts, though a majority of the decisions show that 
 the foundation principle of this branch of the jurisdic- 
 tion fairly includes all such cases, whether the damage 
 is substantial or not.^^ If plaintiff's legal remedy may 
 be vexatious, harassing, and hence inadequate when 
 he recovers substantial damages, still more would it 
 
 17 Fitzgerald v. Urton, 5 Cal. 308; Mohawk etc. Co. v. Artclier, 
 6 Paige, 83; Henderson v. New York Cent, E. E. Co., 78 N. Y. 423; 
 Biriuingham Traction Co. v. Southern Bell etc, Co., 119 Ala. 144, 24 
 South. 731; Davis v. Frankenlust Tp., 118 Mich, 494, 76 N. W, 1045; 
 Calmelet v. Sichl, 48 Neb. 50o, 58 Am. St. Eep, 700, €7 N. W. 467; 
 Gobeille v. Meunier, 21 E. I. 103, 41 Atl. 1001; Barbee v. Shannon, 
 1 Ind, Ter. 199, 40 S. W. 584; McCloskey v. Doherty, 97 Ky. 200, 30 S. 
 W. 649. 
 
 18 That an injunction should issue in such a case: Goodson v. Eich- 
 ardson, L, E, 9 Ch, App, 221; Powell v, Aiken, 4 Kay & J, 343; Allen 
 V. Martin, L. E. 20 Eq. 462; Delaware etc. Co. v. Breckenridge, 57 
 N. J. Eq. 154, 41 Atl. 966, affirmed in 58 N. J. Eq. 581, 43 Atl. 1097; 
 and the language of the courts in most of the cases in which in fact 
 there is substantial damage shown, indicates that this question is of 
 no moment. Injunctions were refused in McCullough v. Denver, 39 
 Fed. 307; Nicodemus v. Nicodemus, 41 Md. 529; Hoy v. Sweetman, 
 19. Nev. 376, 12 Pac. 504; Fisher v. Carpenter, 67 N. H. 569, 39 Atl. 
 1018; Crescent etc. Co. v. Silver etc. Co., 17 Utah, 444, 70 Am. St. 
 Eep. 810, 54 Pac. 244; Savannah etc. Co. v. Suburban etc. Co., 93 
 Ga. 240, 18 S. E. 824; Whitlock v. Consumers' etc. Co., 127 Ind, 62, 
 26 N. E. 570; Christman v. Howe (Ind,), 70 N. E, 809. If the plain- 
 tiff is a reversioner, however, it is proper to require that he show 
 substantial damage, because otherwise he shows no legal cause of 
 action in himself: Cooper v. Crabtree, L, E, 20 Ch. D. 589; Coney v.
 
 831 INJUNCTIONS AGAINST TEESPASS. § 496 
 
 seem to be so when his recovery is only nominal.'* 
 When the trespasses complained of are caused by the 
 separate acts of individuals, a multiplicity of suita 
 may be caused to plaintiff either because the defend^ 
 ants are numerous or because a single defendant 
 does the same or similar acts repeatedly. The princi- 
 ple involved in all such cases is the same, and injunc- 
 tions should issue. And when the basis of the multi- 
 plicity of suits which plaintiff fears is that the de- 
 fendants are numerous, all authorities agree in grant- 
 ing the injunctions.^'* But when it is the case of it 
 
 Brunswick etc. Co., 116- Ga. 222, 42 S. E. 498. The following are ad- 
 ditional cases in which continuing trespasses were enjoined: Dosoria 
 Pond Co. V. Campbell, 164 N. Y. 596, 58 N. E. 1087, affirming 25 App. 
 Div. 179, 50 N. Y. Supp. 819; Cobb v. Mass. Cham. Co., 179 Mass. 423, 
 60 N. E. 790; Ehodes v. McNamara (Mich.), 98 N, W. 392; Simpson 
 V. Moorhead, 65 N, J. Eq. 623, 56 Atl. 887; McClellan v. Taylor, 54 
 S. C. 430, 32 S. E. 527; Hall v. Nester, 122 Mich. 141, 80 N. W. 
 982; Kagsdale v. Southern Ky. Co., €0 S. C. 381, 38 S. E. 609; Oli- 
 vella V. New York etc. Co., 31 Misc. Eep. 203, 64 N. Y. Supp. 1086; 
 Hahl V. Sugo, 46 App. Div. 632, 61 N. Y. Supp. 770, affirming 27 Misc. 
 Eep. 1, 57 N. Y. Supp. 920; Providence etc. Co. v. City of Fall Eiver, 
 183 Mass. 535, 67 N. E. 647; Miller v. Hoeschler, 121 Wis. 558, 99 N. 
 W. 228 (citing 4 Pom. Eq. Jur., § 1347). 
 
 19 It is often given as an additional reason for enjoining repeated 
 or continuing trespasses to land that otherwise there is danger lest 
 they "ripen into an easement." Apart from the remoteness of any 
 such danger, which alone would seem enough to defeat the injunc- 
 tion, the reason would appear to be unsound because of the fact that 
 plaintiff, by bringing suit, or interfering with the trespasses once in 
 every period necessary for the ripening of an easement, would pre- 
 vent that danger: See McGregor v. Silver King Min. Co., l4 Utah, 
 47, 60 Am. St. Eep. 883, 45 Pac. 1091; Hart v. Hilderbrandt, 30 Ind. 
 App. 415, 66 N. E. 173. 
 
 20 This statement is, of course, subject to the qualifications which 
 the questions of "community of interest" or "identity of issues" 
 have made in the decisions with reference to the proper joinder of 
 the defendants in one suit. For a full discussion of this point and 
 collection of the authorities, see 1 Pom. Eq. .Jur., §§ 243-275. Typi- 
 cal cases illustrating this group are, Smith v. Bivens, 56 Fed. 352; 
 United States Freehold Land etc. Co. v. Gallegos, 89 Fed, 769, 32
 
 I 496 EQUITABLE EEMEDIES. 832 
 
 single defendant who, by repeating his acts of tres- 
 pass, makes it necessary for plaintiff to pursue his le- 
 gal remedy only by a succession of actions, the de- 
 cisions are curiously diverse. It is held, in a small 
 group of cases, that this is not the kind of multiplicity 
 of suits which equity enjoins, but that instead an injunc- 
 tion is proper only when different persons assail plain- 
 tiff's right.^^ The other view, and the one sustained 
 alike \)j the weight of authority and by principle, is that 
 if a defendant manifests a purpose to persist in perpe- 
 trating his unlawful acts, the vexation, expense and 
 trouble of prosecuting the actions at law make the legal 
 remedy inadequate, and justify a plaintiff in coming 
 into equity for an injunction.^^ None of the cases show 
 
 C. C. A. 470; New York Cent. etc. Co. v. Warren, 31 Misc. Eep. 
 571, 64 N. Y. Supp. 781; Boston etc. Co. v. Sullivan, 177 Mass. 230, 
 83 Am^t. Eep. 275, 58 N. E. 689; Palmer v. Israel, 13 Mont. 209, 
 33 Pac. 134. 
 
 21 Best V. Drake, 11 Hare, 369; Smith v. Gardner, 12 Or. 221, 53 
 Am. Eep. 342, 6 Pac. 771; Jerome v. Eoss, 7 Johns. Ch. 315, 11 Am. 
 Dec. 484; Carney v. Hadley, 32 Fla. 344, 37 Am. St. Eep. 101, 14 
 South. 4, 22 L. E. A. 233; Eoebling Sons' Co. v. First Nat. Bank, 
 30 Fed. 744; Deegan v. Neville, 127 Ala. 471, 85 Am. St. Eep. 137, 
 29 South. 173; Taylor v. Pearce, 71 111. App. 525. 
 
 22 Musselman v. Marquis, 1 Bush (Ky.), 463, 89 Am. Dec. 637; 
 Ladd V. Osborne, 79 Iowa, 93, 44 N. W. 235; Gray Lumber Co. v. Gas- 
 kin (Ga.), 50 S. E. 164, quoting Pom. Eq. Jur., § 1357; Mendelson 
 V. McCabe, 144 Cal. 230, 103 Am. St. Eep. 78, 77 Pac. 915; Boglino 
 V. Giorgetta (Colo. App.), 78 Pac. 612; Heman v. Wade, 74 Mo. 
 App. 339, citing 4 Pom. Eq. Jur., § 1357; McClellan v, Taylor, 5-1 
 S. C. 430, 32 S. E. 527; Allen v. Martin, L. E. 20 Eq. 462; Lembeck 
 V. Nye, 47 Ohio St. 336, 21 Am. St. Eep. 828, 24 N. E. 686, 8 L. E. 
 A. 578; New York etc. Co. v. Scovill, 71 Conn. 136, 71 Am. St. 
 Eep. 159, 41 Atl. 246, 42 L. E. A. 157; Owens v. Crossett, 105 111. 
 354; Valentine v. Schreiber, 3 App. Div. 235, 38 N. Y. Supp. 417; 
 Sills v. Goodyear, 80 Mo. App. 128; Pohlman v. Lohmeyer, 60 Neb. 
 364, 83 N. W. 201; Garrett v. Bishop, 27 Or. 349, 41 Pac. 10; Barbee 
 V. Shannon, 1 Ind. Ter. 199, 40 S. W. 584, citing 1 Pom. Eq. Jur., § 264; 
 Lynch v. Egan (Neb.), 93 N. W. 775; Atchison etc. Co. v. Spaulding, 
 69 Kan. 431, 77 Pac. 106; Blondell v. Consolidated Gas Co., 89 Md. 732,
 
 833 INJUNCTIONS AGAINST TRESPASS. S 497 
 
 any tendency to make the seriousness of the damage 
 the criterion,^^ and the jurisdiction attaches as well to 
 trespasses to personalty as to realty.^^ 
 
 § 49-7. Insolvency of Defendant. — The inadequacy of 
 legal remedies, ordinarily, against an insolvent tres- 
 passer is obvious, and the reason for equity's interven- 
 tion in such cases is clear. The number of cases in 
 which the defendant's insolvency is made a material 
 part of the court's reason for granting an injunction 
 is very great.^^ The number of cases in which the 
 question has arisen whether insolvency alone is enough 
 to support an injunction is not so large, but is suffi- 
 
 43 Atl. 817, 46 L. E. A. 1S7; Thomas v. Eobinson (Iowa), 92 N. W, 
 70; Hayoie v. Salt Eiver etc. Co. (Ariz.), 71 Pac. 944; Lake Shore 
 etc, Co. V. Felton, 103 Fed. 227, 43 C. C. A. 189; Gulf, C. & S. F. Ey. 
 Co. V. Puckett (Tex. Civ. App.), 82 S. W. 662 (using railway velocipede 
 on railroad track repeatedly). In Musselman v. Marquis, supra, 
 the bill was to enjoin the defendant from throwing down and removing 
 fencing. The facts were that the defendant had already repeat- 
 edly thrown down the fencing, and had declared his intention of 
 continuing the commission of similar trespasses. In allowing the 
 injunction the court, per Hardin, J., said: "Indeed, without re- 
 gard to the alleged insolvency of the defendant, as the other facts 
 alleged disclose a determined purpose on his part to persist in per- 
 petrating the unlawful acts complained of, thus rendering redress 
 at law only obtainable by a multiplicity of suits, and probably with- 
 out any sufficient compensation for the vexation, expense, and 
 trouble attending their prosecution, we are of the opinion that the 
 chancellor had power to enjoin the mischief, in order to prevent 
 oppressive litigation, the principle of equitable jurisdiction being, 
 that where there is no adequate remedy at law, the chancellor must 
 take jurisdiction, or otherwise the damage is irreparable." 
 
 23 See Ellis v. Wren, 84 Ky. 254, 1 S. W. 440. 
 
 24 Warren Mills v. New Orleans Seed Co., 65 Miss. 391, 7 Am. St. 
 Eep. 671, 4 South. 293. 
 
 25 See e. g., Musselman v. Marquis, 1 Bush (64 Ky.), 463, 89 Am. 
 Dec. 637; Milan Steam Mills v. Hickey, 59 N. H. 241; Bensley v. 
 Mountain etc. Co., 13 Cal. 306, 73 Am. Dec. 575; Owens v. Crossett, 
 105 111. 354; McKay v. Chapin, 120 N. C. 159, 26 S. E. 701; Clark 
 V. Wall (Mont.), 79 Pac. 1052. 
 
 Equitable Eemedies, Vol. 1—53
 
 i 498 EQUITABLE KEMEDIES. 834 
 
 cient to show the general recognition by the courts of 
 the glaring insufficiency of a judgment for damages 
 against an insolvent.^* When, however, the legal rem- 
 edy is not rendered inadequate because of the defend- 
 ant's insolvency, as when the desired relief is posses- 
 sion of the land which may be procured by the ordinary 
 possessory action at law, the injunction will be re- 
 fused.-^ 
 
 § 498. Miscellaneous Cases.— Besides the three classes 
 of cases just discussed, there are other cases which 
 permit of no definite classification, but which, largely 
 for that reason, show most clearly the comprehensive 
 nature of equity jurisdiction to restrain trespasses. In 
 one of the leading cases of this kind the supreme court 
 of the United States quoted as the criterion of the ju- 
 risdiction : "It is not enough that there is a remedy at 
 law; it must be plain and adequate, or, in other words, 
 as practical and efficient to the ends of justice, and its 
 prompt administration, as the remedy in equity."-® 
 Cases which illustrate this broad rule are collected in 
 the note.2^ 
 
 26 West V. Walker, 3 N. J. Eq. 279, note B; Wilson v. Hill, 46 
 N. J. Eq. 3G9, 19 Atl. 1097; Paige v. Akins, 112 Cal. 401, 44 Pac. G66; 
 Harms v. Jacobs, 158 111. 505, 41 N. E. 1071; Eyan v. Fxilglium, 96 
 Ga. 234, 22 S. E. 940; Champ v. Kendrick, 130 Ind. 549, 30 N. E. 787; 
 Leach v. Haiboiigh (Neb.), 91 N. W. 521; Hanley v. Waterson, 39 W. 
 Va. 214, 19 S. E. 536. And see further cases collected in 1 Ames, 
 Cases in Eq. Juris. 524, note 2. Contra, Pensacola etc. Co. v. Spratt, 
 12 Fla. 26, 91 Am. Dec. 747; Parker v. Furlong (Or.), 62 Pac. 490; 
 Moore v. Halliday, 43 Or. 243, 99 Am. St. Eep. 724, 72 Pac. 801; 
 Loyd V. Blackburn (W. Va.), 50 S. E. 740; Heilman v. Union Canal 
 Co., 37 Pa. St. 100; Puryear v. Sanford, 124 N. C. 276, 32 S. E. 685. 
 
 27 Warlier v. Williams, 53 Neb. 143, 73 N. W. 539. 
 
 28 Watson V. Sutherland, 5 Wall. 74, 18 L. ed. 580. 
 
 29 Watson V. Sutherland, 5 Wall. 74, 18 L. ed. 580 (seizure of 
 stock of goods on execution enjoined because law of damages would 
 allow plaintiff to recover only value of the goods and not the losi
 
 835 INJUNCTIONS AGAINST TRESPASS. § 499 
 
 § 499. Eminent Domain. — There is one class of cases 
 in which an injunction will issue against a trespass 
 without regard to the character of the act, viz., when 
 property is taken or used by a defendant under the 
 right of eminent domain without first complying with 
 the prescribed formalities for ascertaining and making 
 compensation. In such cases, the courts do not stop 
 to inquire whether the value of the property to be taken 
 was little or great, whether the injury to the complain- 
 ant was great or small, but grant the injunction first, 
 on the ground that the constitutional provision makes 
 the payment of a properly ascertained compensation 
 a condition precedent to the right to take, and that in- 
 junction is the only way to enforce this provision.^** 
 
 to his business); North v. Peters, 138 U. S. 271, 34 L. ed. 936 
 (same as preceding case). Other cases of the same sort are col- 
 lected in 1 Ames, Cases in Eq. Juris., 532, note 3. But see Tomlin- 
 son V. Eubio, 16 Cal. 202, disapproved by Currey, J., in Tevis v. 
 Ellis, 25 Cal. 518; Thomas v. James, 32 Ala. 723 (bill by a cestui 
 que trust, who would maintain no action at law); and see Lytle v. 
 James, 98 Mo. App. 337, 73 S. W. 287 (licensee plaintiff); Payne v. 
 Kansas etc. Co., 46 Fed. 546 (damages would be conjectural); Lon- 
 don etc. Co. V. Lancashire etc. Co., L. R. 4 Eq. 174 (same) ; West- 
 moreland etc. Gas Co. v. De Witt, 130 Pa. St. 235, 18 Atl. 724, 5 
 L. R. A. 731 (same); Poughkeepsie Gas Co. v. Citizens' Gas Co., 
 89 N, Y. 493 (same); Phillips v. Winslow, 57 Ky. (18 B. Mon.) 431, 
 68 Am. Dec. 729 (seizure and sale of cars under wrongful execution 
 enjoined because it would stop business of a railroad) ; Barbee v. 
 Shannon, 1 Ind. Ter. 199, 40 S. W. 584 (damages which plaintiff, a 
 lessor, could recover, might be less than he would be liable for 'to 
 his lessee for breach of covenant) ; Miller v. Wills, 95 Va. 337, 28 
 S. E. 337 (non-residence of defendant of weight in determining pro- 
 priety of granting an injunction); Morgan v. Baxter, 113 Ga. 144, 
 38 S. E. 411 (same, but non-residence alone not enough). See Poke- 
 gama etc. Co. v. Klamath River etc. Co., 96 Fed. 34; Allen Coal 
 Co. V. Ohallis, 103 111. App. 52; City of Los Angeles v. Los Angeles 
 etc. Co., 124 Cal. 368, 5 Pac. 210. 
 
 30 McElroy v. Kansas City, 21 Fed. 257; Searle v. City of Lead, 
 10 S. D. 405, 73 N. W. 913; Donovan v. Allert, 11 N. D. 289, 95 
 Am. St. Rep. 720, 91 N. W. 441, 58 L. R. A. 775; Birmingham Trac-
 
 i 500 EQUITABLE EEMEDIES. 836 
 
 The injunction granted in such cases may be an abso- 
 lute one which forbids defendant further to trespass 
 till after proper condemnation proceedings,^^ or it may 
 be so framed as to reach the same end as such proceed- 
 ings would, and thus save a second legal action.^^ 
 
 § 500. What Plaintiff Must Allege.— A plaintiff who 
 asks for the aid of equity against trespass, must, of 
 course, show a case to justify the extraordinary relief 
 he seeks. Hence, he must show in his bill not only a 
 legal wrong,23 but, further, why the legal remedy is not 
 adequate.^"* And it is not sufficient for this purpose 
 
 tion Co. V. Birmingham Ey. etc. Co. (Ala.), 24 South. 368; Village 
 of Itasca V. Schroeder, 182 111. 192, 55 N. E. 50; Yates v. Milwaukee, 
 10 Wall. 479, 19 L. ed. 984. This subject is treated at length, ante, 
 chapter XX. See the following cases for instances of relief granted 
 when no attempt has been made to condemn the property: Baya v. 
 Town of Lake City, 44 Fla. 491, 33 South. 400; Shipley v. Western 
 Md. Tidewater E. Co., 99 Md. 115, 56 Atl. 968; Freud v. Detroit & P. 
 Ey. Co., 133 Mich. 413, 95 N. W. 559. See, also, Atlantic & B. E. Co. 
 T. Seaboard Air Line Ey., 116 Ga. 412, 42 S. E. 761. 
 
 31 Gilraan v. Sheboygan etc. Co., 40 Wis. 653; Eosenberger v. 
 Miller, 1 Mo. App. 640, 61 Mo. App, 422; Bensley v. Mountain etc. 
 Co., 13 Cal. 306, 73 Am. Dec. 575; Central etc. Co. v, Philadelphia 
 etc. Co., 95 Md. 428, 52 Atl. 752; Folley v. City of Passaic, 26 N. J. 
 Eq. 216; Peck v. Schenectady Ey. Co., 170 N. Y. 298, 63 N. E. 357, 
 modifying 67 App. Div. 359, 73 N. Y. Supp. 794. 
 
 32 Henderson v. New York Cent. etc. Co., 78 N. Y. 423; Pappen- 
 heim v. Metropolitan etc. Co., 128 N. Y. 436, 26 Am. St. Eep. 486, 
 28 N. E. 518, 13 L. E. A. 401. See ante, §§ 473, 470. 
 
 ?i3 Stat© V. Eost, 59 La. Ann. 995, 23 South. 978; Flannery v. 
 Hightower, 97 Ga. 592, 25 S. E. 371; Kellogg v. King, 114 Cal. 378, 
 55 Am. St. Eep. 74, 46 Pac. 166. And so if a plaintiff's bill fails to 
 show he has title to the property in question, he will be refused 
 relief: Amos v. Norcross, 58 N. J. Eq. 256, 43 Atl. 195; Perkins 
 V. Mason, 105 Mo. App. 315, 79 S. W. 987; Powell v. Brinson, 120 
 Ga. 36, 47 S. E. 499; Tiernan v. Miller (Neb.), 96 N, W. 661. 
 
 34 Collins V. Sutton, 94 Va. 127, 26 S. E. 415; Smith v. Schlink, IG 
 Colo. App. 325, 62 Pac. 1044. Contra, Kaufman v. Wiener, 169 El. 
 596, 48 N. E. 479, affirming. 68 111. App. 250; Murphy v. Lincoln, 63 
 Vt. 278, 22 Atl. 418.
 
 837 INJUNCTIONS AGAINST TEESPASS. § 501 
 
 that he merely allege an "irreparable" or a "continu- 
 ing" trespass. He must set forth the facts from which 
 the court may draw the inference that the legal rem- 
 edy is not sufficient.^' Nor is it necessary that he 
 should allege that the injury will be irreparable;'' the 
 same reason which makes it necessary for him to set 
 out the facts, makes it unnecessary for him to do more. 
 
 § 501. Threatened Trespass. — In the subject of trespass 
 as elsewhere the main function of an injunction is to 
 preserve property from future injury. Courts will not, 
 however, enjoin against a mere speculative or possible 
 injury. Instead, a reasonable probability of the in- 
 jury resulting must be shown.^^ Hence, if defendant 
 has neither done nor threatened any wrongful acts, and 
 denies his intention to do the acts against which an 
 injunction is sought, it will be refused,^^ On the other 
 hand, if plaintiff shows that defendant has threatened 
 to do acts of the kind which equity enjoins, that is 
 enough to rest his case upon.^^ And threats mn.v ' ^ 
 
 85 Waldron v. Marsh, 5 Cal. 119; Carlisle v. Stevenson, 3 Md. ( h. 
 504; Kesner v. Miesch, 90 III. App. 437; Thorn v. Sweeney, 12 Nev. 
 251; Wiggins v. Middleton, 117 Ga. 162, 43 S. E. 433. 
 
 36 Boston etc. B. R. v. Sullivan, 177 Mass. 230, 83 Am. St. Eop. 
 275, 58 N. E. 689; Kaufman v. Wiener, 169 111. 596, 48 N. E. 479, 
 reversing, 68 111. App. 250; Chappell v. Jasper County etc. Co., 31 
 Ind. App. 170, 66 N. E. 515. 
 
 87 Ilaupt V. Independent etc. Co., 25 Mont. 122, 63 Pac. 1033; 
 Lorenz v. Waldron, 96 Cal. 243, 31 Pac. 54; Montana Ore etc Co. 
 V. Boston & M. etc. Co., 22 Mont. 159, 56 Pac. 120. 
 
 38 Hagemeyer v. Village of St. Michael, 70 Minn. 482, 73 N. W. 
 412; Chicago etc. Co. v. Brandan, 81 Mo. App. 1; Kerlin v. West, 
 4 N. J. Eq. 449. 
 
 39 New York etc. Co. v. Scovill, 71 Conn. 136, 71 Am. St. Rep. 
 159, 41 Atl. 246, 42 L. R. A. 157; Union Mill etc. Co. v. Warren, 
 82 Fed. 522; Negaunee etc. Co. v. Ironcliffs Co. (Mich.), 06 N. W. 
 468; More v. Massini, 32 Cal. 390.
 
 S 502 EQUITABLE EEMEDIES. 83S 
 
 purely verbal without any acts,^*' or they may consist of 
 acts from which the inference as to defendant's inten- 
 tion may be made.*^ If, however, the wrongful act is 
 done, and it is not accompanied by threats of repeti- 
 tion, and does not itself constitute a threat, the injunc- 
 tion will not issue, since, in such case, it is needless.'*^ 
 
 § 502. Dispute as to Title; General Principles. — The ef- 
 fect of a dispute as to title on the propriety of granting 
 an injunction to a plaintiff who seeks to enjoin de- 
 structive acts of a defendant who, in turn, justifies on 
 the ground that he is the owner of the land affected, 
 has been much discussed by the courts, and a consid- 
 erable difference of judicial opinion has resulted. The 
 source of the difficulty was a dlctum^^ and a decisiou^^ 
 of Lord Eldon that when a plaintiff stated that the 
 defendant claimed by an adverse title, he stated himself 
 out of court, — a statement of the law which, when taken 
 absolutely, Lord Eldon himself disapproved, and which, 
 after repeated expressions of disapproval,^^ the Eng- 
 lish courts finally modified a half century later. '*^ A.s 
 will appear below, the great weight of American au- 
 thority is also opposed to the rule thus unqualifiedly 
 formulated. The reason that a dis^^ute as to title should 
 
 40 Union Mill etc. Co. v. Warren, 82 Fed. 522; Lyon v. Hunt, 11 
 Ala. 295, 46 Am. Dec. 216. 
 
 41 Bonaparte v. Camden etc. Co., Baldw. (C. C.) 205, 231, 232, Fed. 
 Cas. No. 1617; McMinn v. Karter, 123 Ala. 502, 26 South. 649. 
 
 42 Ocmiilgee Lumber Co. v. Mitchell, 112 Ga. 528, 37 S. E. 749; 
 Ketchum v. Depew, 81 Hun, 278, 30 N. Y. Supp. 794. 
 
 43 Pillsworth V. Hopton, [1801] 6 Ves. 51. 
 
 44 Smith V. Collyer, [1803] 8 Ves. 89. 
 
 45 See Jones v. Jones, 3 Mer. 160; Haigh v. Jaggar, 2 Coll. C. C. 
 231; Davenport v. Davenport, 7 Hare, 217. 
 
 46 Commissioners v. Blackett, [1848] 12 Jur. 151; Neale v. Cripps, 
 4 Kay & J. 472; Lowndes v. Bettle, 3 New Eep. 409, 33 L. J. Ch. 
 451, 10 Jur., N. S., 226. The point is now covered by statute in Eng- 
 land (36 & 37 Vict., c, 66, § 25, subsec. 8).
 
 839 INJUNCTIONS AGAINST TRESPASS. § 502 
 
 preclude the granting of an injunction permanently 
 is that under such circumstances "it is possible that 
 title may be in the defendant. .... If he has the 
 title, then he has a right to possession, and ought not 
 to be precluded from acquiring it. But if the injunc- 
 tion stands, he is under a permanent judicial inhibition 
 from in 'any wise' meddling with the property. His 
 right to litigate the title in an action at law sliould be 
 preserved to him."^'^ In brief, one should not be finally 
 enjoined from acts which may be wholly rightful and 
 lawful. But on the other hand, it does not follow from 
 this that the injunction should be wholly refused. 
 There being a substantial dispute over the title, it is clear 
 that the plaintiff may prove to be the owner, and his pos- 
 sible interest should be protected at once, because other- 
 wise "the injury may be committed before trial. "*^ 
 Hence, a true regard for the interests of both parties 
 requires that a temporary injunction should issue to 
 preserve the property in its present condition till the 
 ov/nership is decided. Such temporary injunction is 
 of course subject to the usual governing principles of 
 temporary injunctions, which are discussed elsewhere. 
 Some of the more important of these principles in this 
 connection are that, since the action of the court may 
 wrong one party, whether it grant or refuse the in- 
 junction, — the defendant is wronged by granting the 
 injunction if he is the rightful owner, the plaintitf is 
 wronged by refusing it if he proves title, — the courts 
 are largely guided in forming their conclusion by bal- 
 ancing these possible wrongs against each other, and 
 acting unfavorably toward whichever party will be 
 least injured by unfavorable action;"*^ a small degree of 
 
 47 Ecbelkamp v. Schrader, 45 Mo. 505. 
 
 48 Gauge v. Perkins, 3 Jones Eq. 177, 69 Am. Dec. 728. 
 
 49 Mabel Mining Co. v. Peaistin etc. Co., 121 Ala. 567, 25 Soutlu
 
 S 502 EQUITABLE EEMEDIES. 840 
 
 laches will lose plaintiff his right to itf^ its purpose 
 is almost always to preserve the status quo;^^ the pros- 
 pective injury on which plaintiff must rest his case is 
 that which will occur before he can have time to estab- 
 lish his right, not the full and entire injury on which 
 his right to a permanent injunction may rest, and the 
 injury to occur in this interval must be sufficient to 
 support an injunction ;^2 and, finally, its continuance 
 or dissolution is dependent upon the outcome of the 
 dispute as to title.^^ It follows that when the sole 
 basis of equity's jurisdiction is to prevent a multiplic- 
 ity of suits caused by a continuing trespass or by re- 
 peated trespasses of a single individual, a temporary 
 injunction will rarely, if ever, be appropriate."^ For 
 
 754; Hicks v. Compton, 18 Cal. 206; City of Terre Haute v. Farm- 
 ers' etc. Co., 99 Fed. 838, 40 C. C. A. 117; Brower v, Williams, 44 
 App. Div. 337, 60 N. Y. Supp. 716; Ehreureich v. Froment, 54 App. 
 Div. 196, 66 N. Y. Supp. 597; Rogers v. Ashbridge, 23 Pa. Co. Ct. 
 492, 9 Pa. Dist. 195; McGregor v. Silver King etc. Co., 14 Utah, 47, 
 60 Am, St. Eep. 883, 45 Pac. 1091; Crescent etc. Co. v. Silver King 
 etc, Co., 17 Utah, 444, 70 Am, St. Rep. 810, 54 Pac. 244; New York 
 etc. Establishment v. Fitch, 1 Paige, 97; Lownsdale v. Grays Harbor, 
 117 Fed. 983; New Jersey etc. Co, v. Gardner etc, Co,, 113 Fed 
 395. 
 
 ao Field V, Beaumont, 1 Swanst, 204; Jones v. Jones, 3 Mer. 163 
 Heal Del Monte etc. Co, v. Pond Co., 23 Cal. 82; Higgins v. Wood 
 ward, Hopk, 342; remark of Bruce, L. J., in Attorney-General v 
 Sheffield etc. Co., 3 De Gex, M. & G, 304, 328. 
 
 51 Blakemore v. Glamorganshire etc. Co., 1 Mylne & K. 154; Mam 
 moth etc. Co.'s Appeal, 54 Pa. St, 183, 
 
 52 New York etc. Establishment v. Fitch, 1 Paige, 97. 
 
 53 Hill V, Bowie, 1 Bland (Md.), 593. 
 
 54 New York etc. Establishment v. Fitch, 1 Paige, 97. In this case 
 the plaintiff sought an injunction against the defendant using ita 
 dock from day to day for landing and taking on freight and passen- 
 gers. A preliminary injunction having been granted, a motion to 
 dissolve was made on the matter of the bill only. In granting the 
 motion, Walworth, C, said: "Whether the facts stated by the coun- 
 sel on the argument, in relation to the controversy in this cause, 
 would be sufficient to sustain the jurisdiction of this court on tho 
 principle of quieting them in the enjoyment of their property, and
 
 «41 INJUNCTIONS AGAINST TEESPASS. § 503 
 
 it is the plaintiff's own fault if, during the interval 
 while he is establishing his right, he brings a number 
 of suits. He can afford to wait till the right is deter- 
 mined in his favor at least better than the defendant 
 can afford to give up even temporarily the right to use 
 the property, if it be his. 
 
 § 503. Defendant in Possession Enjoined from Destructive 
 Acts. — In the leading English case which discusses the 
 effect of a dispute as to title on the granting of an in- 
 junction against trespass, the court, after an exhaustive 
 review of the cases, made the following distinction : 
 "Where a defendant is in possession, and a plaintiil" 
 claiming possession seeks to restrain him from commit- 
 ting acts similar to those here complained of [cutting 
 timber^ ornamental trees and shrubs, and sods], the 
 court will not interfere unless, indeed (as in x\eale v. 
 Cripps), the acts amount to such flagrant instances of 
 spoliation as to justify the court in departing froiu 
 
 the general principle But where the person in 
 
 possession seeks to restrain one who claims by an ad- 
 verse title, the tendency of the court will be to grant 
 
 preventing the necessity of a perpetual litigation, it is not necetsary 
 to decide at tliis time. 
 
 "It is sufficient for the decision of the question immediately before 
 the court, that it does not appear that any serious damage or irrep- 
 arable injury -will take place, if the defendants continue to run 
 their boat and land their passengers, as they have heretofore done, 
 until the complainants' rights are admitted by the answer or settled 
 on the hearing. On the other hand, I can readily see that retainino; 
 the preliminary injunction may produce great injury to the defend- 
 ants, and for which they would be entirely without remedy, if it 
 should finally appear that they were only in the exercise of their 
 legal rights. ' ' And see, also, to the same effect, Carney v. Hadley, 32 
 Fla. 344, 37 Am. St. Eep. 101, 14 South. 4, 22 L. E. A. 233; Nevitt v. 
 Gillespie, 2 Miss. (1 How.) 108, 26 Am. Dec. 696; Delaware etc. Co. v. 
 Breckinridge, 55 N. J. Eq. 141, 35 Atl. 756; Smith v. Gardner, 12 Or. 
 221, 33 Am. Bep. 346, 6 Pac. 771.
 
 5 503 EQUITABLE EEMEDIES. 842 
 
 the injunction, at least when the acts either do or may 
 tend to the destruction of the estate. "^^ A close anal- 
 ysis of the above passage may perhaps lead to the con- 
 clusion that the class of acts which will lead. to an in- 
 junction in the one case usually will have the same 
 effect in the other. Nevertheless the distinction is one 
 which cannot be disregarded in view of the state of au- 
 tliority, nor is it without reason. That reason, as given 
 in the same case, is as follows: "If a man claims to be 
 owner of an estate of which he either is in possession, 
 or in a position tantamount to that, the court will be 
 very slow to interfere to restrain such an apparent 
 owner from doing those acts which an owner so situ- 
 ated may properly do. There is a wide difference be- 
 tween such a case and that of a person claiming to be 
 owner (whatever the ground of his claim), not taking 
 proceedings at law to recover, but coming on the own- 
 er's estate, and doing acts injurious to it."°^ In other 
 words, the fact of possession in the defendant is re- 
 garded as strong evidence of title in him, and the plain- 
 tiff must therefore make a stronger case to justify an 
 interference with him. The logical effect of this rea- 
 soning is, that the plaintiff should be granted an in- 
 junction either if he produce stronger evidence of 
 title than would otherwise be required of him, in order 
 to offset the inference of title which defendant's pos- 
 session raises, or if (as is suggested in the passage above 
 cited), he show that defendant is committing "flagrant 
 instances of spoliation" — that is, more than ordinarily 
 destructive acts. The actual effect is that some courts 
 either grant the injunction only in the latter case, or 
 
 55 Lowndes v. Settle, 33 L. J. Ch. 451, 457, 3 New Rep. 409, 10 Jur., 
 N. S., 226. 
 
 56 33 L. J. Cb. 451, 453; Leininger's Appeal, 106 Pa. St. 398; see 
 for another reason, Talbot v. Scott, 4 Kay & J. 96.
 
 8! 3 INJUNCTIONS AGAINST TRESPASS. § 50J 
 
 else lay down the hard-and-fast rule that no injunction 
 will issue when the defendant is in possession under 
 claim of title, till the plaintiff has established his own- 
 ership in an action brought for that purpose.^'^ The 
 weight of authority, however, has now come to be that 
 even in this case a temporary injunction will issue if, 
 pending litigation, there will otherwise be such serious 
 acts of trespass that damages will not be an adequate 
 remedy.^^ The reason which sustains this holding has 
 never been more forcibly and clearly stated than in 
 Duvall V. Waters,^^ one of the earliest American cases 
 in which the question was considered, in which Chan- 
 cellor Bland said: "Should it turn out that the defend- 
 ant had an unquestionable title, then the granting of 
 
 57 Storm V. Mann, 4 Johns. Ch. (N. Y.) 21; Perry v. Parker, 1 
 Wood. & M. 280, Fed. Cas. No. 11,010; Leininger's Appeal, 106 Pa. St. 
 398; Schoonover v. Bright, 24 W. Va. 698; Munyon v. Filmore (Ind." 
 Ter,), 76 S. W. 257; Cresap v. Kemble, 26 W. Va, 603; Carpenter v. 
 Gwj-nn, 35 Barb. 395; Nevitt v. Gillespie, 2 Miss. (1 How.) 108, 26 
 Am. Dec. 6&G. (overruled in Woods v. Eiley, 72 Miss. 73, 18 South. 
 384); Taylor v. Clark, 89 Fed. 7; Graham v. Womack, 82 Mo. App. 
 618; Gildersleeve v. Overstolz, 97 Mo. App. 303, 71 S. W. 371. 
 
 58 Shubrick v. Guerard, 2 Desaus. 616; Neale v. Cripps, 4 Kay 
 & J. 472; Duvall v. Waters, 1 Bland Ch. 569, 18 Am. Dec. 350; Harris 
 V. Thomas, 1 Hen. & M. (Va.) 18; Erhardt v. Boaro, 113 U. S. 537, 5 
 Sup. Ct. 565, 28 L. ed. 1116, affirming 8 Fed. 692, 2 McCrary, 141; 
 Buskirk v. King, 25 U. S. App. 607, 72 Fed. 22, 18 C. C. A. 418; 
 Hicks V. Michael, 15 Cal. 107; Williams v. Long, 129 Cal. 229, 61 
 Pac. 1087; Heman v. Wade, 74 Mo. App. 339; Snyder v. Hopkins, 31 
 Kan. 557, 3 Pac. 367; Hamilton v. Brent Lumber Co., 127 Ala. 78, 
 28 South. 698; Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271, 36 
 L. E. A. 566; Gaines v. Leslie, 1 Ind. Ter. 546, 37 S. W. 947; Woods 
 V. Riley, 72 Miss. 73, 18 South. 384 (overruling earlier Mississippi 
 cases, contra); Lanier v. Alison, 31 Fed. 100; Waterloo Co. v. Doe, 
 82 Fed. 45, 27 C. C. A. 50; King v, Campbell, 85 Fed. 814; Northerfl 
 Pac. Co. V. Soderberg, 86 Fed. 49; Wadsworth v. Goree, 96 Ala. 227, 
 10 South. 848; Heinze v. Butte etc. Co., 20 Mont. 528, 52 Pac. 273; 
 McBrayer v. Hardin, 7 Ired. Eq. 1, 53 Am. Dec. 389; Bishop v. Bais- 
 ley, 28 Or. 120, 41 Pac. 936.. 
 
 ".'> Duvall V. Waters, 1 Bland Ch. (Md.) 569, 18 Am. Dec. 350, 
 361.
 
 § 504 EQUITABLE REMEDIES. 844 
 
 such an injunction could only operate temporarily and 
 partially to the prejudice of the free exercise of his 
 right of property. But on the other hand, if it should 
 be eventually shown that the plaintiff had the title, 
 then, as the injunction turns no one out of possession 
 nor displaces anything, it must necessarily leave to the 
 defendant the advantage of fighting the plaintiff with 
 his own property. Upon which, had not the injunc- 
 tion been granted, the most irretrievable destruction 
 might have been perpetrated; acts of waste might have 
 been committed which would deprive the plaintiff of 
 the very substance of his inheritance, mischief might 
 have been done which it would require years to repair j 
 and things might have been torn away or destroyed 
 which it would be difficult or impossible to restore in 
 kind, such as the building, fixtures, trees, or other pecu- 
 liarities about the estate, which a multitude of asso- 
 ciated recollections had rendered precious to their 
 owner; but as compensation for the loss of which, a 
 jury would not give one cent beyond their mere value." 
 
 § 504. Defendant not Enjoined from Mere Use. — It is 
 not to be inferred from the above that the courts which 
 have gone thus far are at all hasty, or even ready, to 
 enjoin one in possession claiming title. It has already 
 been pointed out that the injunction granted is a tem- 
 porary one, subject to all the restraints which the 
 courts always throw about this exercise of "the strong 
 arm of equity." It is only acts for which there is no 
 adequate legal remedy that will be thus enjoined. 
 Hence, the courts never enjoin a defendant in posses- 
 sion from mere use of the premises.^*' "Pending an ac- 
 tion for the possession, while the title is disputed and 
 
 «0 Borlwell V. Crawford, 26 Kan. 292, 40 Am. Eep. 306; Snyder 
 V. Hnplnris. 31 Knn. Rn7, 3 Pac. 367; Booher v. BroTvninsr, 169 Pa. "^ 
 18, 32 Atl. S.'^; W;i.1<]ingham v. Eobledo, 6 N. Mex. 347. 22 tac. ooo;
 
 845 INJUNCTIONS AGAINST TRESPASS. S 504 
 
 undetermined by a judgment at law, equity ought not 
 ro interfere to restrain the defendant from continuing 
 the possession, from the ordinary and natural use of 
 the premises, and the enjoyment of all benefits which 
 floAv from possession. If the premises be a farm, the 
 defendant should not be restrained from cultivating 
 the land and enjoying all the benefits which flow from 
 tlie natural and ordinary use of a farm as a farm. To 
 tills end he should be permitted to sow and gather any 
 ordinary crop upon the cultivated ground. He should 
 be permitted to put up any temporary sbeds or other 
 buildings necessary for the protection of his stock or 
 the preservation of his crops. He should be permitted 
 to use all the usual agricultural implements in the cul- 
 tivation of the broken land, not merely in the harvest- 
 ing of crops as seems to be indicated by the restraining 
 order, but also in planting and cultivation. He should 
 be at liberty to pasture bis stock on the grass lands, pro- 
 viding, at least, he has no more stock than is ordinarily 
 raised and kept on such a farm. In short, he should be 
 permitted to use the farm in any ordinary way, as such 
 a farm is used, with the single limitation that he com- 
 mit no waste, and make no substantial and injurious 
 change in its condition."*'^ And in the determination of 
 what is such use, the courts of a particular jurisdiction 
 will, of course, act consistently with their own holding 
 as to what constitutes irreparable injury; hence, acts 
 may in one jurisdiction be permitted as mere ordinary 
 use which, in others, would be enjoined as destruction.^^ 
 
 Duvall V. Waters, 1 Bland Ch. (Md.) 569, 18 Am, Dec. 350; Gause 
 V. Perkins, 3 Jones Eq. (56 N, C.) 177, 69 Am. Dec. 728; Carney v. 
 Hadley, 32 Fla. 344, 37 Am, St. Eep, 101, 14 South. 4, 22 L. R. A. 
 233. 
 
 «l Snyder v, Hopkins, 31 Kan. 557, 3 Pac, 367, per Brewer, J. 
 
 B2 See Gause v. Perkins, 3 Jones Eq. (56 N. C.) 177, 69 Am. Dec. 
 728; Sharpe v. Loane, 124 N, C, 1, 32 S. E. 318.
 
 § 503 EQUITABLE REMEDIEa SIS 
 
 § 505. Plaintiff in Possession. — In view of what lias 
 been said above, and of the state of authoritj^ on the 
 question of grantino; a temporary injunction against a 
 defendant in possession claiming title, no argument or 
 discussion will be necessary to show that when the 
 plaintiff is in possession claiming title, he should be 
 granted a temporary injunction, pending the litigation 
 over title, against all trespasses, such that, from their 
 nature or the surrounding circumstances (as, for ex- 
 ample, the defendant's insolvency) he cannot have an 
 adequate legal remedy for them. And this is the al- 
 most unanimous holding of the courts,^^ though there 
 is an occasional intimation that the mere existence of a 
 dispute as to title is of itself, regardless of the state of 
 possession, enough to preclude the granting of any in- 
 junction, temporary or permanent.^* 
 
 63 Santee etc. Co. v. James, 50 Fed. 360; Chapman v. Toy Long, 
 4 Saw. 28, Fed. Cas. No. 2610; Thomas v. Nantahala etc. Co., 8 U. S. 
 App. 429, 58 Fed. 485, 7 G. C. A. 330; Pittsburg etc. Co. v. Fiske, 
 123 Fed. 760; Lyon v. Hunt, 11 Ala. 29o, 46 Am. Dec. 216; More 
 V. Massini, 32 Cal. 590; Merced Min. Co. v. Fremont, 7 Cal. 317, 68 
 Am. Dec. 262; Thigpen v. Aldridge, 92 Ga. 563, 17 S. E. 860; Eng- 
 lish V. James, 108 Ga. 123, 34 S. E. 122; Staples v. Eossi, 7 Idaho, 
 618, 65 Pac. 67; Long v. Casebeer, 28 Kan. 226; Peak v. Hayden, 3 
 Bush (Ky.), 125; Scully v. Eose, 61 Md. 408; Clayton v. Shoemaker, 
 67 Md. 216, 9 Atl. 635; Butman v. James, 34 Minn. 547, 27 N. W. 
 66; Kyle v. Ehodes, 71 Miss. 487, 15 South. 40; Echelkamp v. Schra- 
 der, 45 Mo. 505; Lee v. Watson, 15 Mont. 228, 38 Pac. 1077; South- 
 mayd v. McLaughlin, 24 N. J. Eq. 181; Piper v. Piper, 38 N. J. Eq. 
 81; Manning v. Ogden, 70 Hun, 399, 24 N. Y. Supp. 70; Mendenhali 
 V. Harrisburgh etc Co., 27 Or. 38, 39 Pac. 399; Allen v. Dunlap, 24 
 Or. 229, 33 Pac. 675; Westmoreland etc. Co. v. De Witt, 130 Pa. St. 
 235, 18 Atl. 724, 5 L. E. A. 731. 
 
 64 Wilson V. City of Mineral Point, 39 Wis. 160; Woodford v. 
 Alexander, 35 Fla, 333, 17 South. 658; Brown v. Solary, 37 Fla. 102, 
 19 South. 161; Citizens' etc. Co. v. Camden etc. Co., 29 N. J. Eq. (2 
 Stew.) 299; National etc. Co. v. Central etc. Co. of N. J., 32 N. J. 
 Eq. 755, 767; Hacker v. Barton, 84 HI. 313. It should be noticed 
 in this connection that the question here presented is differr-nt from 
 that involved in cases in which the sole basis of equity's intervention
 
 847 liN JUNCTIONS AGAINST TRESPASS. § 506 
 
 § 506. Establishment of Title.— The following lan- 
 guage of the court in a leading American case^^ is often 
 quoted: "Two conditions must concur to give [equity] 
 jurisdiction [over trespasses] — the plaintiffs title must 
 be admitted, or be established by a legal adjudication, 
 and the threatened injury must be of such a nature as 
 will cause irreparable damage." This language was 
 used by the court in speaking of the granting of a per- 
 manent injunction (a fact not always noticed in quot- 
 ing it) and from what has been said it follows that in 
 this connection only is it true, and that it is to be so 
 confined in its application.^^ The suggestion of the 
 court that the establishment of plaintiff's title must 
 take place at law is not necessarily true, however. The 
 general principle of equity, that having taken jurisdic- 
 tion of a cause for one purpose it will retain it and give 
 complete relief, makes it a proper proceeding for courts 
 of equity, if they see fit, to investigate the title them- 
 selves at the hearing of the same suit in which the tem- 
 porary injunction is granted, and then make permanent 
 or dissolve the temporary injunction according to the 
 
 is the prevention of multiplicity of suits caused by one defendant 's 
 repeated or continuing trespass. In such cases, as has been already 
 pointed out (ojtfe, § 496, at note 54), a temporary injunction should not 
 be granted; what plaintiff seeks, and all he is entitled to, is a perma- 
 nent injunction to save him the annoyance and expense of frequent 
 suits at law. Hence it is very proper, if his title is in doubt, to re- 
 quire that he establish it before he is given an injunction, althou':'h 
 it would seem, on principle, to be a matter of discretion, even in that 
 class of cases, whether to require that the disputed title be settled 
 at law or by the court of equity itself. See 1 Pom. Eq. Jur., § 25'2; 
 Wheelock v, Noonan, 108 N. Y. 179, 2 Am. St. Eep. 405, 15 N. E. 67, 
 affirming 53 N. Y. Super. Ct. (21 Jones & S.) 286. 
 
 65 Gause v. Perkins, 3 Jones Eq. (56 N. C.) 177, 69 Am. Dec. 728, 
 per Pearson, J. 
 
 66 For a statement which makes this limitation see Norton v. El- 
 
 wert, 29 Or. 583, 41 Pac. 926.
 
 i 506 EQUITABLE EEMEDIES. 848 
 
 result of the inquiry.^^ Courts of equity, however, 
 more usually send the question to be tried at law, but 
 this is from reasons of policy rather than of jurisdic- 
 tion.^8 If the plaintiffs title is clear, though denied 
 by the defendant, a permanent injunction may issue at 
 once.^' If the court decides to have the question tried 
 at law it may procure diligence in the prosecution of 
 the ejectment suit by framing an issue as an incident to 
 its own proceedings and sending the parties to law with 
 it f^ or by granting the temporary injunction to a plain- 
 tiff out of i^ossession on terms> that the injunction sliail 
 continue only if he begins and prosecutes his action of 
 ejectment with diligence;"^ or, if the defendant is the 
 party out of possession, and therefore the i^roper per- 
 son to bring ejectment, by a provision that the injunc- 
 
 57 "When there is irreparable damage, injunction lies, though 
 there be confiicting title And equzty, having once taken juris- 
 diction, will go ou to do co:i;plcte j'/stice, though in so doing it 
 have to try title, and adiiiinister remedies which properly pertain 
 to courts of law": Bettman v. Harnesf/, 42 W, Va, 433, 26 S. E. 271, 
 36 L. E. A. 566. Other cases to the same effect are, City of Peoria 
 V, Johnston, 56 111. 45; Griffith v. Hilliard, 64 Vt. 643, 25 Atl. 427; 
 Stetson V. elevens, 64 Vt. 649, 25 Atl. 429; Coppage v. Griffith, 19 
 Ky. Law Eep. 459, 40 S. W. 908; Shirley v. Hicks, 110 Ga. 516, 35 
 S. E. 782; West etc. Co, v. Eeymert, 43 N. Y. 703; Broiestedt v. South 
 Side Co., 55 N. Y. 220; McLaughlin v. Kelly, 22 Cal, 212; Jennings 
 etc. Co. V. Beale, 158 Pa. St. 283, 27 Atl. 948; Haskell v. Sutton, 53 
 W. Va. 206, 44 S. E, 533. Contra, Freer v. Davis, 52 W. Va. 1, 94 Am. 
 St. Eep. 895, 43 S. E. 164, 59 L. E. A. 556. For an analytical note 
 with further cases, see 1 Ames, Cases in Eq. Juris., 515. 
 
 68 Pom. Eq. Jur., § 252. These reasons seem to be two: 1. The de- 
 sire to preserve to the parties the right to a jury trial; 2. The tra- 
 ditional reluctance of equity courts to extend their jurisdiction over 
 the field already occupied by the law courts. 
 
 69 Carpenter v. Grisham, 59 J'o. 247; Miller v. Lynch, 149 Pa. St. 
 460, 24 Atl. 80. 
 
 70 Harris v. Thomas, 1 Hen. & M. (Va.) 18; Santee etc. Co. v. 
 James, 50 Fed. 360. 
 
 71 Johnson v. Hughes, 58 N. J. Eq. 406, 43 Atl. 901.
 
 849 INJUNCTIONS AGAINST TEESPASS. § 507 
 
 (ion shall be made permanent if he fail to do this within 
 a reasonable time.'^^ 
 
 § 507. Possession, When Given by Injunction. — The ques- 
 tion has not infrequently come before the courts just 
 how much relief, if any, is to be given a plaintiff out 
 of possession against a defendant in possession. It has 
 been shown that if the defendant is engaged in acts of 
 a kind proper to invoke equity's preventive power 
 against, he will be enjoined even when he claims title; 
 a fortiori it is clear that the same thing should be true 
 if he is admittedly a trespasser, and such is the law."^^ 
 Hut in general this is the only relief that equity will 
 give in such a case. The further relief which the plain- 
 tiff may desire is usually possession of the land. If 
 this is asked for as part of the prayer of a bill for an 
 injunction, it would be consistent with the general equi- 
 table rule of giving complete relief to award possession 
 to the plaintiff in such a case. This course seems to be 
 almost never followed,"* but instead the plaintiff must 
 bring his action of ejectment at law. If possession 
 alone is what plaintiff desires, he can get no relief in 
 equity, because the legal remedy afforded by an action 
 of ejectment or of forcible entry and detainer is ade- 
 quate for the specific relief desired.^^ And this is no 
 
 72 Echelkamp v. Scbrader, 45 Mo. 505. 
 
 73 Brown v, Solary, 37 Fla. 102, 19 South. 161; Hall v. Nester, 
 122 Mich. 141, 80 N. W. 982; Webster v. Cooke, 23 Kan. 637; Turner 
 V. Stewart, 78 Mo. 480. 
 
 74 It was adopted in Bussier v. Weekey, 11 Pa. Super. Ct. 463, 
 citing McGowin v. Eemington, 12 Pa. St. 56, 51 Am. Dec. 584, and 
 Nutbrown v. Thornton, 10 Ves. 159. See Lattin v. McCarty, 41 N. 
 Y. 107, in which possession was awarded in the same suit in which 
 a deed was vacated. 
 
 75 Tawas B. etc. E. E. Co. v. Tosco Cir. Judge, 44 Mich. 479, 7 N. 
 W. 65; Calvert v. State, 34 Neb. 616, 52 N. W. 687; Coalter v. Himter, 
 4 Eand. (Va.) 58, 15 Am. Dec. 7-6; Brocken v. Preston, 1 Pino. 
 
 Equitable Eeniedies, Vol. I — 54
 
 § 507 EQUITABLE KEMEDIES. 850 
 
 less true, though the defendant is insolvent,'^^ or though 
 plaintiff, if he had brought his bill sooner, might have 
 secured an injunction against the destructive acts 
 which accomijanied the taking of possession by the de- 
 fendant."^ Beyond the fact that the legal remedy is 
 adequate, a further reason against transferring posses- 
 sion by injunction, when that is the only relief given, 
 in this country is that it deprives the defendant of jury 
 trial, and so is unconstitutional;'^ and if the transfer 
 is sought by a temporary injunction, an additional rea- 
 son against it is that this is an attempt to use a tem- 
 porary injunction for the purpose of changing the 
 status quo, whereas its more usual and proper function 
 is to preserve the status quoJ^ 
 
 But though the rule is general that possession will 
 not be granted by injunction, it is subject to exceptions 
 which exist because legal remedies in the particular 
 cases fail or become insuHicient. fcjo, if the plaintiff's 
 estate is purely equitable, and thus legal remedies are 
 not open to him, he may be put in possession by a man- 
 datory injunction.'^'^ it has also been frequently held 
 
 (Wis.) 584, 44 Am. Dec. 412; Fredericks v. Huber, 180 Pa. St. 572, 
 37 Atl. 90; Loweuthal v. New Music Hall Co., 100 III. App. 274; Lock- 
 hart V. Leeds, 10 N. Mex. 568, 63 Pac. 48; In re Black Point iSyntli- 
 cate, 79 L. T., N. S., 658; Catholic etc. Co. v. Ferguson, 7 S. D. 503, 
 64 N. W. 539; Wehmer v. Fokenga, 57 Neb. 510, 78 N. W, 28. 
 
 76 Warlier v. Williams, 53 Neb. 143, 73 N. W. 539; Gillick v. 
 Williams, 33 Neb. 146, 73 N. W. 540. 
 
 77 Deere v. Guest, 1 Mylne & C. 516. 
 
 78 Trustees etc. of Florida v. Gleason, 39 Fla. 771, 23 South. 539; 
 State ex rel. Eeynolds v. Graves, 66 Neb. 17, 92 N. W. 144; Formau 
 V. Healoy, 11 N. D. 563, 93 N. W. 866. 
 
 79 Dickson v. Dews, 11 N. D. 404, 92 N. W. 797; San Antonio etc. 
 Co. V. Bodenhamer etc. Co., 133 Cal. 248, 65 Pac. 471. This reason is 
 not conclusive, however, as shown by the fact that mandatory tem- 
 porary injunctions are not at all unknown to the law. See "Tempo- 
 rary Injunctions," infra, in chapters on Nuisance and Easements. 
 
 80 Pokegama etc. Co. v. Klamath Eiver etc. Co., 86 Fed. 528; s. c. 
 J)6 Fed. 34, 55, 56; Eichter v. Kabat, 114 Mich. 575, 72 N. W. 600.
 
 851 INJUNCTIONS AGAINST TEESPASS. § 507 
 
 that one who has begun the process of acquiring title 
 to public land according to the prescribed rules, but 
 who has not yet acquired a title such that he can ade- 
 quately enforce and protect his right to possession by 
 legal remedies, may procure the possession to which he 
 is entitled by injunction ;^^ but his right to get an in- 
 junction ceases as soon as he has progressed far enough 
 in acquiring title so that he can maintain ejectment.^^ 
 Another class of cases which has frequently led to a 
 restoration of possession by injunction is that in which 
 the defendant has erected a building which encroaches 
 on the plaintiff's land. In such a case, three remedies 
 are open to him. First, he may remove the building 
 as far as it encroaches over the line, and then sue the 
 defendant for the expense incurred, a remedy which is 
 inadequate because it compels him to undo the wrong 
 of another, because it compels him to advance the cost 
 of men and machinery to effect the removal and take 
 the risk of securing reimbursement from the defend- 
 ant,^^ and because it burdens him with the risk of in- 
 jury to other portions of defendant's building not in- 
 cluded within the encroaching part.^^ Second, he may 
 submit to the trespass and seek relief by actions for 
 damages at intervals of time, a remedy the inadequacy 
 
 81 Sproat V. Durland, 2 Okla, 24, 35 Pac. 682, 8&G; Woodruff v. 
 Wallace, 3 Okla. 355, 41 Pac. 357; Laughlin v. Fariss, 7 Okla. 1, 
 50 Pac. 254, 256; West Coast Imp. Co, v. Winsor, 8 Wash. 490, 36 
 Pac. 441; Lee v. Watson, 15 Mont. 228, 38 Pac. 1077; Jackson v. 
 Jackson, 17 Or. 110, 19 Pac, 847. 
 
 8S Laughlin v. Fariss, 7 Okla. 1, 50 Pac. 254; Black v. Jackson, 
 177 U. S. 349, 20 Sup. Ct. 648, 44 L. ed. 801, reversing 6 Okla. 751, 
 52 Pac. 406; Potts v. Hollen, 177 U. S. 365, 20 Sup. Ct. 654, 44 L. 
 e.l. 808, reversing 6 Okla. 696, 52 Pac. 917; Harris v, McClung, 10 
 Okla. 701, 64 Pac. 4. 
 
 83 Wheelock v. Noonan, 108 N. Y. 179, 2 Am. St. Rep. 405, 15 
 N, E. 67, affirming 53 N. Y. Super. Ct, (21 Jones & S.) 286. 
 
 81 See Baron v. Kom, 127 N. T. 224, 27 N. E. 804.
 
 § 5U8 EQUITABLE EEMEDIES, 852 
 
 of which is attested by the whole doctrine of injunc- 
 tion to prevent multiplicity of suits. Third, he may 
 bring an action of ejectment, the judgment in wliich 
 puts upon the sheriff in executing it the risk of injuring 
 more of the building than is trespassing, so that this 
 remedy, too, is an impracticable one.^^ On the otlier 
 hand, the remedy by injunction ftlaces the obligation to 
 remove directly on the one who caused the structure to 
 be erected. Hence, equity usually grants an injunction 
 in such cases, and thus as a part of its relief restores 
 possession of land to the owner.^^ 
 
 § 508. The Balance of Injury.— The state of facts which 
 has just been considered often occurs in such form as 
 to raise another question which courts of equity have 
 had some diflQculty in answering. If a defendant's 
 building encroaches slightly on the plaintiff's land and 
 the plaintiff's damage is small, while the cost to the de- 
 fendant of removing it is great, should a court of equity 
 disregard wholly the injury which granting relief to 
 the plaintiff will cause the defendant, and issue the 
 injunction? Or, should it balance the injury which its 
 course will cause in granting or in withholding relief. 
 and be influenced by this consideration in its decision.' 
 A further element is sometimes introduced into tlu? 
 case by the fact that the defendant is engaged in a busi- 
 
 85 Hahl V. Sugo, 27 Misc. Kep. 1, 57 N. Y. Supp. 920, affirmed in 
 46 App. Div. 632, 61 N. Y. Supp. 770. 
 
 86 Baron v. Korn, 127 N. Y. 224; Norton v. Elwert, 29 Or. 5S3, 
 41 Pac. 926; Long v. Ragan, 94 Md. 462, 51 Atl. 181; Pile v. Ped- 
 rick, 167 Pa. St. 296, 46 Am. St. Rep. 677, 31 Atl. 646, 36 Wkly. 
 Not. Cas. 224; Harrington v. McCarthy, 169 Mass. 492, 48 N. E. 278; 
 Proprietors etc. Wharf v. Proprietors etc. Wharf, 85 Me. 175. 27 
 Atl. 93; Ryan v. Schwartz, 94 Wis. 403, 69 N. W. 178. Contra, Bots- 
 fnrd V. Wallace, 72 Conn. 19.5, 44 Atl. 10; Coast Co. v. Mayor etc. 
 Spring Lake, 56 N. J. Eq. 615, 51 L. R. A. 657, 36 Atl. 21; Schuster 
 V. Myers, 148 Mo. 422, 50 S. W. 103.
 
 853 INJUNCTIONS AGAINST TRESPASS. S 508 
 
 ness which serves public convenience, and thus can 
 plead not only the injury to himself, but also to the 
 public, as a reason for not granting the injunction. It 
 should be premised in the beginning that the question 
 cannot arise except in a case in which some sufficient 
 reason for equity jurisdiction, such as irreparable in- 
 jury or the prevention of a multiplicity of suits, exists ; 
 in other cases, the injunction will be refused on the 
 simple ground that the legal remedy is adequate. It 
 is believed, too, that the question of the convenience 
 of the public should be treated as immaterial, though 
 it must be said that courts have sometimes allowed 
 their decision to be influenced by this consideration.^'^ 
 In answer to the suggestion that the convenience of the 
 public should be taken account of in determining the 
 propriety of granting an injunction. Lord Selborne, L. 
 C, replied : "It is said that the objection of the plaintiff 
 to the laying of these pipes is an unneighborly thing, 
 and that his right is one of little or no value, and one 
 which Parliament, if it were to deal with the question, 
 might possibly disregard. What Parliament might do 
 if it were to deal with the question, is, I apprehend, 
 not a matter for our consideration now, as Parliament 
 has not dealt with the question. Parliament is, no 
 doubt, at liberty to take a higher view upon a balance 
 struck between private interests and public interests 
 than this court can take."^^ In other words, so far as 
 
 87 McElroy v. Kansas City, 21 Fed. 261; Eouse v. Martin, 75 
 Ala. 510, 51 Am. Rep. 463; Fogarty v. City of Cincinnati, 7 Ohio 
 N. P. 100, 9 Ohio St. & C. P. Dec. 753. That this is not a proper 
 consideration in such cases, see Goodson v. Richardson, L. E. 9 Ch. 
 App. 221; Attorney-General v. Council etc. of Birmingham, 4 Kay 
 & J. 528, 538, 539; Hinchman v. Horse E. E. Co., 2 C. E. Green 
 (^\ J.), 75, 86 Am. Dec. 252; Canastota Knife Co. v. Isewington 
 Tramway Co., 69 Conn. 146, 36 Atl. 1107; Sammons v. City of Glov- 
 ersville, 17 N. Y. Supp. 2S4, 286 (citing authorities). 
 
 88 Goodson V. Richardson, L. R. 9 Ch. App. 221.
 
 § 508 EQUITABLE REMEDIES. 854 
 
 the utility to the public is made the basis of an argu- 
 ment, it would seem to be simply urging the propriety 
 of taking private property for public use without the 
 requisite condemnation proceedings^^ — the unwise pol- 
 icy of which cannot be doubted. 
 
 Assuming, then, that the only question before the 
 court is the propriety of balancing the injury that may 
 be caused to the parties by the decree, and remember- 
 ing that the question does not arise except when equity 
 has jurisdiction of the case because the plaintiff's legal 
 remedy is inadequate, it should be noted that to deny 
 the injunction is (1) "to allow the wrong-doer to com- 
 pel innocent persons to sell their right at a valua- 
 tion,"^^ and (2) to refuse him altogether any equitable 
 relief in a case where, on the ground of avoiding mul- 
 tiplicity of suits at least, he is clearly within one of 
 the most frequently given reasons for assuming juris- 
 diction, and where, also, his injury may be irreparable. 
 In view of this situation it is clear that the plaintiff's 
 prayer will not readily be denied, and it can safely be 
 said that the argument based on the balance of injury 
 to the defendant will be availing only in a limited 
 class of cases. On the other hand, it is a general rule 
 of equity not to exercise its extraordinary jurisdiction 
 when it will operate inequitably and oppressively.^^ 
 The problem presented is, therefore, to strike a medium 
 rule between these principles that, as fairly as may be, 
 will do justice. The courts of Massachusetts and New 
 York have considered the question, upon various states 
 of facts, oftener than the courts of any other juris- 
 diction; and acting independently, have arrived at 
 
 89 Hinchman v. Horse R. E. Co., 2 C. E. Green (N. J.), 75, 86 Am. 
 Dec. 252. 
 
 90 Tucker v. Howard, 128 Mass. 361. 
 
 »l Starkie v. Eichmond, 155 Mass. 188, 29 N. E. 770.
 
 855 INJUNCTIONS AGAINST TRESPASS. S 508 
 
 substantially the same result. That result, in the 
 words of the Massachusetts court, is as follows :^^ 
 "Where, by an innocent mistake, erections have been 
 placed a little upon the plaintiff's land, and the damage 
 caused to the defendant by the removal of them would 
 be greatly disproportionate to the injury of which the 
 plaintiff complains, the court will not order their re- 
 moval, but will leave the plaintiff to his remedy at 
 law." The language of the New York court is:^^ "It 
 must be remembered that a willful trespasser cannot 
 in this way acquire an inch of land, because the manda- 
 tory injunction must issue as to him; that in other cases 
 where the injury to the plaintiff is irreparable the 
 mandatory injunction will issue, and permanent dam- 
 ages will not be awarded; that where the granting of 
 an injunction would work greater damage to an inno- 
 cent defendant than the injury from which the plaintiff 
 prays relief, the injunction could be refused absolutely, 
 and the plaintiff compelled to seek his remed}^ at law." 
 In practice these rules are probably almost the same,^^ 
 
 92 Lynch v. Union Institution for Savings, 159 Mass. 306, 34 N. 
 E. 364, 20 L. E. A. 842. Other Massachusetts cases which show the 
 development and working of the rule are Tucker v. Howard, 128 
 Mass. 361; Brands v, Grace, 154 Mass. 210, 31 N. E, 633; Starkle v. 
 Eichmond, 155 Mass. 188, 29 N. E. 770; Lynch v. Union Institution 
 for Savings, 158 Mass. 394, 33 N. E. 603; Boland v. St. John's Schools, 
 163 Mass. 129, 39 N, E. 1035; Methodist etc. Society v. Akers, 167 
 Mass. 500, 46 N. E. 381; Harrington v. McCarthy, 169 Mass. 492, 
 48 N. E. 278; Cobb v. Massachusetts Chem. Co., 179 Mass. 423, 60 
 N. E. 790. 
 
 9:5 Goldbacher v. Eggers, 38 Misc. Eep. 36, 76 N. Y. Supp. 881, 
 886, affirmed in 84 N. Y. Supp. 1127. . See, also, Crocker v. Manhattan 
 Life Ins. Co., 61 App. Div. 226, 70 N. Y. Supp. 492, modifying 31 
 Misc. Eep. 687, 66 N. Y. Supp. 84; Proskey v. Cumberland Eealty 
 Co., 35 Misc. Eep. 50, 70 N. Y. Supp. 1125. 
 
 94 The difference between the two rules, if any, is in the amount 
 of damage to the plaintiff which the court will balance against the 
 greater damage to the defendant. From the language of the Massa- 
 chusetts court, "erections have been placed a little upon the plain-
 
 § 508 EQUITABLE KEMEDIES. 850 
 
 and tliey perhaps represent as nearly a fair resultant 
 of the arguments on the side of both parties as can be 
 arrived at. Both rules protect the plaintiff from \ery 
 serious injury, both deny any protection to a willful 
 wrong-doer, and both, as far as possible, refuse to apply 
 the remedy of mandatory injunction when to do so 
 would be oppressive to the defendant. Doubtless they 
 will be followed, though cases can be found which, not 
 including the elements making necessary carefully 
 qualified statements, contain broad dicta that the bal- 
 ance of injury will or will not be considered.^^ It 
 
 tiff's land," it would seem a fair inference that the rule would 
 not be applied against a plaintiff whose damage was at all serious, 
 and the cases that so far have arisen bear out the inference. The 
 New York rule has no such limitations short of "irreparable" in- 
 jury to the plaintiff; and in the two principal New York cases above 
 cited the peruianent damages awarded to the plaintiff were $G00 
 and $5,000 respectively. The explanation of this difference, if it 
 exists, lies in the fact that the Massachusetts courts seem to adopt 
 the traditional view of equity courts that land is per se within the 
 protection of equity, and therefore any trespass on it which amounts 
 to a confiscation of ever so small a portion of it is "irreparable" 
 injury; hence the rule under discussion is to be confined within the 
 narrowest compass. On the other hand, it is evident not only from 
 the statement of the rule above quoted but also from other por- 
 tions of the opinion, and from the opinion in Crocker v. Manhattan 
 Life Ins. Co., supra, that the New York courts do not regard the 
 plaintiff as entitled to come into equity in this class of cases on 
 the ground of irreparable injury at all, but solely on the ground of 
 preventing multiplicity of suits; hence even when his damages are 
 large it does not follow that he is "irreparably" injured, and 
 therefore the question is simply one of balancing two injuries, neither 
 of which is irreparable, between two innocent parties. The ideal 
 consideration that it is an irreparable injury to the plaintiff to be 
 deprived of his property without his consent is, of course, not ad- 
 mitted. 
 
 95 That the balance of the injury is to be given weight: McElroy 
 V. Kansas City, 21 Fed. 257, 261; FuUenwider v. Supreme <"'ouncil 
 etc. League, 73 111. A pp. 321; Wilcox v. Wheeler, 47 N. H. 488; 
 Scharr v. City of Camden (N. J. Ch.), 49 Atl. 817; Fisher v. Car- 
 penter, G7 N. H. 5G9, 39 Atl. 1018; Edwards v. Allouez Min. Co., 38 
 Mich. 46, 31 Am. Rep. 301. That the balance of injury is not to ba
 
 857 INJUNCTIONS AGAINST TEESPASS. § 509 
 
 should be added by way of caution that the foregoing 
 discussion applies only to the granting of permanent 
 injunctions; it has already been pointed out that on an 
 application for a temporary injunction, when the rights 
 of the parties are undecided, the balance of injury is a 
 controlling consideration.®' 
 
 § 5C9. Personal Eemedy Open to Plaintiff. — In a number 
 of cases a plaintiff has sought injunctions against tres- 
 passes when it would be possible for him by his own per- 
 sonal efforts to put an end to the trespass, and thus 
 render the legal remedy adequate. In the leading case 
 in which the question was considered, the defendant had 
 covered a lot belonging to the plaintiff with large rocks, 
 and in reply to the argument of counsel the court 
 said:^^ "It is now said that the remedy was at law; 
 that the owner could have removed the stone and then 
 recovered of the defendant for the expense incurred. 
 But to what locality could the owner remove them? 
 He could not put them in the street ; the defendant pre- 
 sumably had no vacant lands of his own on which to 
 throw the burden; and it would follow that the owner 
 would be obliged to hire some vacant lot or place of 
 deposit, become responsible for the rent, and advance 
 the cost of men and machinery to effect the removal. If 
 any adjudication can be found throwing such burden 
 upon the owner, compelling him to do in advance for 
 the owner what the latter is bound to do, I should very 
 much doubt its authority. On the contrary, the law 
 
 considered: Norton v. Elwert, 29 Or. 583, 41 Pac. 926; Hennessy v. 
 Carniony, 50 N. J. Eq. 616, 25 Atl. 374 (case of nuisance, but the 
 argument is none the less in point here). 
 
 96 Ante, § 502. 
 
 97 Per Finch, J., in Wheeloek v. Noonan, 108 N. T. 179, 2 Am. 
 St. Kep. 405, 15 N. E. 67, affirming 53 N. Y. Super. Ct. (21 Jones & 
 S.) 286.
 
 § 510 EQUITABLE EEMEDIES. 858 
 
 is the other way. And all the cases which give to the 
 injured pai-ty successive actions for the continuance of 
 the wrong are inconsistent with the idea that the in- 
 jured party must once for all remove it." These argu- 
 ments are not easy to meet, and there are cases in 
 accord with its suggestion ;^^ on the other hand, there 
 are cases in which the burden thrown upon the plain- 
 tiff in putting an end to the trespass himself would not 
 be heavy, and in which, therefore, the injunction has 
 been denied.®^ If, however, the party whose land is 
 trespassed upon wishes by his own efforts to remove the 
 trespassing object, he m.ay of course do so, and equity 
 will not interfere with him.^*^** 
 
 § 510. Relief Given. — A brief paragraph may perhaps 
 properly be given to noting the relief which equity gives 
 in such cases of trespass as fall within its jurisdiction. 
 It is, of course, clear that the only ground on which a 
 case of trespass can be brought into equity is the plain- 
 tiff's right to an injunction, and this is therefore the 
 primary relief given him. It is usually prohibitory, 
 but only because prohibitory relief is more often de- 
 sired. Despite occasional dicta to the contrary,^"^ the 
 use of mandatory injunctions is well established. The 
 
 98 Sylvester v. Jerome, 19 Colo. 128, 34 Pac. 760; Kern v. Field, 
 G8 Minn. 317, 64 Am. St. Eep. 479, 71 N. W. 393. See Beach v. 
 Crane, 2 N. Y. 86, 97, 49 Am. Dec. 3G9. 
 
 90 Indianajjolis EoUing Mill Co. v. City of Indianapolis, 29 Ind. 
 245; Boyden v. Bragaw, 53 N. J. Eq. (8 Dick.) 26, 30 Atl. 330; Me- 
 chanics' Foundry of San Francisco v. Eyall, 75 Cal. 601, 17 Pac. 
 703; cf. De Groot v. Peters, 124 Cal. 406, 71 Am. St. Eep. 91, 57 
 Pac. 209. And see Eankin v. Charless, 19 Mo. 551, 61 Am. Dec. 
 574; Avery v. Empire Woolen Co., 82 N. Y. 582. 
 
 100 Lyle v. Little, 83 Hun, 532, 33 N. Y. Supp. 8; Windfall etc. 
 Co. V. Terwillicer, 152 Ind. 364, 53 N. E. 284; De Sale v. Millard, 
 108 Mich. 581, 66 N. W. 481. 
 
 101 Way Cross etc. Co. v. Southern Pine Co., Ill Ga. 233, 36 S. E. 
 641; Newlin v. Prevo, 81 111. App. 75.
 
 859 INJUNCTIONS AGAINST TRESPASS. § 510 
 
 discnssion of the questions when equity will put a 
 plaintiff in possession, and the effect of the balance of 
 injury which will be caused by granting or witlihold- 
 inj4- its relief, have made necessary previous citation in 
 this chapter of numerous cases in which mandatory 
 injunctions were issued. A few others are collected in 
 the note,^^2 in some of which the court went the length 
 of decreeing not only the undoing of wrongful acts, but 
 also the doing of rightful ones — not merely destructive, 
 but constructive acts.^^^ Further, the general prin- 
 ciple of equity to give full relief in a cause in which it 
 has jurisdiction for any purpose applies in case of tres- 
 l>ass as well as elsewhere. That it is under this rule 
 that equity acts in passing on disputed titles has al- 
 ready been seen.^^^ On the same principle equity gives 
 damages for past trespassing in addition to an injunc- 
 tion,^ <^-^ but not when the injunction is refused for want 
 of jurisdiction.^^^ Or damages only may be given when 
 the court has jurisdiction of the cause, but finds it neces- 
 Kiry to refuse the injunction for some other reason 
 than want of jurisdiction, as, for example, because an 
 injunction would be futile.^^^ The tiexibility of in- 
 
 102 Crocker v. Manhattan etc. Co., 61 App. Div. 226, 70 N. Y. 
 Svjpp, 492, modifying 31 Misc. Eep, 687, 66 N. Y. Supp. 84; Norton 
 V. Elwert, 29 Or. 583, 41 Pac. 926; United States v. Brighton Eanche 
 Co., 26 Fed. 218; Creely v. Bay State etc. Co., 103 Mass. 514; Wil- 
 marth v. Woodcock, 66 Mich. 331, 33 N. W. 400; Norwalk Heating 
 etc. Co. V. Vernam, 75 Conn. 662, 96 Am. St, Rep. 246, 55 Atl. 168. 
 
 103 Lake Shore etc. Co. v. Wiley, 193 Pa. St. 496, 44 Atl. 5S3; 
 Bussier v. Weekey, 11 Pa. Super. Ct. 463. 
 
 104 Ante, § 506. See, also, Kilgore v. Norman, 119 Fed. 1006. 
 
 105 Morris v. Bean, 123 Fed. 618; Bird v. Wilmington etc. Co., 
 8 Rich. Eq. (S. C.) 46, 64 Am. Dec. 739; Downing v. Dinwiddle, 132 
 Mo. 92, 33 S. W. 470; Bishop v. Baisley, 28 Or. 119, 41 Pac. 936. 
 
 100 Pres. etc. Baltimore etc. Road v. United etc. Co., 93 Md. 138, 
 48 Atl. 723. 
 
 107 Lewis V. Town of N. Kingston, 16 R. I. 15, 27 Am. St. Rep. 
 724, 11 Atl. 173; Lane v, Michigan Traction Co., 10 Det. Leg. News, 
 685, 97 N. W. 354.
 
 § 511 EQUITABLE EEMEDIES. 860 
 
 junctions in tlie hands of tlie courts also enaljles them, 
 by simply framing the decree in the alternative, to ac- 
 complish the purpose of condemnation proceedings in 
 cases in which the defendant has the right of eminent 
 domain,^*'^ or to give permanent damages to the plain- 
 tiff in cases in which at law he could recover only the 
 damages caused him up to the date of the suit.^"^ 
 
 § 511. Estoppel, Laches, Acquiescence The general 
 
 equitable rules as to estoppel, laches and acquiescence 
 also apply in the subject of this chapter. No discussion 
 of these rules will be undertaken here, as they are 
 treated elsewhere; a few cases illustrating their applica- 
 tion in cases of trespass are collected in the note.^^*^ 
 
 108 Henderson v. New York Cent, etc. Co., 78 N. Y. 423; Pappcn- 
 heim v. Metropolitan etc. Co., 128 N. Y. 436, 26 Am. St. Eep. 486, 
 28 N. E. 518, 13 L. E. A. 401. See ante, §§ 473, 470. 
 
 109 Crocker v. Manhattan Ins. Co., 61 App. Div. 226, 70 N. Y. 
 Supp. 492, affirming 31 Misc. Kep. 687, 66 N. Y. Supp. 84; Goldbacher 
 V. Eggers, 38 Misc. Eep. 36, 76 N. Y. Supp. 881; affirmed in 84 
 N. Y. Supp. 1127. 
 
 110 Estoppel.— City of New York v. Pine, 1S5 U. S. 93, 22 Sup. 
 Ct. 592, 46 L. ed. 820, reversing 50 C. C. A. 145, 112 Fed. 98, 103 
 Fed. 337; Pennsylvania E. Co. v. Glenwood etc. Co., 184 Pa. St. 227, 
 41 Wkly. Not. Cas. 441, 39 Atl. 80; Bright v. Allan, 203 Pa. St. 304, 
 93 Am. St. Eep. 769, 53 Atl. 251. 
 
 Laches. — Southard v. Morris Canal Co., 1 N. J. Eq. 519; Scudder 
 V. Trenton etc. Co., 1 N. J. Eq. 694, 23 Am. Dec. 756; Becker v. 
 Lebanon etc. Co., 188 Pa. St. 484, 43 Wkly. Not. Cas. (Pa.) 229, 41 
 Atl. 612. See, also, ante, chapter I. 
 
 Acciuiescence.— Bassett v. Salisbury etc. Mills, 47 N. H. 426; Blanch- 
 ard V. Doering, 23 Wis. 200.
 
 861 INJUNCTION AGAINST NUISANCE. 
 
 CHAPTER XXIV. 
 
 INJUNCTION AGAINST NUISANCE. 
 
 ANALYSIS. 
 
 § 512. Nature of the jurisdiction. 
 
 § 513. When the legal remedy is adequate. 
 
 S§ 514-517. Extent of the jurisdiction. 
 
 § 514. Irreparable and continuing or recurring nuisances. 
 
 § 515. Illustrations. 
 
 ^ 516. Injunctions on sole ground of preventing multiplicitj 
 
 of suits. 
 
 S 517. Miscellaneous grounds of jurisdiction. 
 
 § 518. What the plaintiff must allege. 
 
 J 5 519-522. Previous trial at law. 
 
 § 520. Not necessary to granting of temporary injunctions. 
 
 § 521. Nor in all cases of permanent injunctions. 
 
 §' 522. Cases in which it is important. 
 
 fS 523-525. Threatened nuisance. 
 
 § 523. Imminent danger. 
 
 §' 524. Illustrations. 
 
 § 525. Must threatened injury be irreparablet 
 
 S 326. Damage necessary to justify an injunction. 
 
 § 527. Criminal and statutory nuisances. 
 
 § 528. The defendant's motive. 
 
 IS 529-531. The balance of injury. 
 
 § 530. Balance between private parties. 
 
 5' 531. Balance between the plaintiff and the public, 
 
 § 532. Nuisance easily avoided by the plaintiff. 
 
 S§ 533-336. Belief given. 
 
 § 533. Mandatory injunctions. 
 
 § 534. Form of injunction. 
 
 I 535. Temporary injunctions. 
 
 § 536. Complete relief. 
 
 S 537. Estoppel, acquiescence, laelies. 
 
 S 538. Parties. 
 
 J 539. Beasonable use not a defense. 
 
 i 540. Nor the fact that other causes contribute^ 
 
 § 541. Legalized nuisances. 
 
 5 542. Public nuisances.
 
 g§ 512, 513 EQUITABLE EEMEDIES. 8G2 
 
 § 512. Nature and Extent of the Jurisdiction. — The terra 
 "nuisance'^ has in equity no different signification from 
 thiit given it in law. Anything which is a nuisance in 
 law is also a nuisance in equity, and, on the other hand, 
 "it is true that equity will only interfere, in case of 
 nuisance, where the thing complained of is a nuisance 
 at law: there is no such thing as an equitable nui- 
 sance."* This is not saying that the jurisdiction of law 
 and that of equity are co-extensive ; it is simply pointing 
 out that equity in the determination of what constitutes 
 a nuisance follows the law.^ Whether, assuming a nui- 
 sance to exist, equity will take jurisdiction to enjoin it, 
 is another question, a question which is answered in 
 every particular case by determining whether there is 
 a need of equity interposing; whether, in the usual 
 phrase, the legal remedy is adequate. No special at- 
 tention need, therefore, be given here to a definition of 
 nuisance, though such of its characteristics as affect 
 the equitable remedy will be spoken of in connection 
 with those features of the equitable remedy to which 
 they are related. 
 
 § 513. "When the Legal Eemedy is Adequate. — While the 
 jurisdiction of law over nuisance and that of equity 
 are not co-extensive, much more nearly than in cases of 
 trespass it is true that every person injured by a nui- 
 sance may come into law or equity, whichever he pre- 
 fers, for his remedy. The reason for this is, that from 
 their nature and effect, most nuisances cannot be satis- 
 
 1 Per Kindcrsley, V. C, in Soltau v. De Held, 2 Sim., N. S., 133 
 151. 
 
 2 Bairios v. Enker, 1 Amb. 158; Wolcott v. Meliek, 11 N. J. Eq. 201, 
 ec Am. Dec. 790; Mississippi etc. Co. v. Ward, 67 U. S. (2 Black) 
 4S5, 17 L. ed. 311; Brady v. Weeks, 3 Barb. 157; Watson v. City of 
 Columbia, 77 Mo, App. 267; Northern Pae. E. E. Co. v. V/halen, 149 
 U. S. 157, 13 Slip. Ct. 822, 37 L. ed. 686.
 
 863 INJUNCTION AGAINST NUISANCE. § 51d 
 
 factorily remedied at law. The grounds on which 
 equity enjoins nuisances are chiefly two, viz., irrepar 
 able injury to plaintiff, and the prevention of multi- 
 plicity of suits. Those which will not be enjoined, 
 therefore, are such nuisances only as do not fall within 
 either of the above classes. But this necessarily means 
 a comparatively small number of cases, for it is char- 
 acteristic of nuisances in general that they are either 
 continuous or recurring, or else they cause irreparable 
 injury, and in many cases, indeed, they are of a char- 
 acter to bring them within both of the reasons for 
 equity's intervention. It is said in one case : "It is not 
 in every case of nuisance that this court should inter- 
 fere. I think that it ought not to do so in cases in 
 which the injury is merely temporary and trifling; but 
 I think that it ought to do so in cases in which the in- 
 jury is permanent and serious."^ The language of an- 
 other court is that nuisances which are "temporary and 
 occasional only, are not grounds for the interference of 
 this court by injunction, except in extreme cases."* 
 These two extracts taken together probably contain a 
 complete statement of the kinds of nuisances for which 
 the legal remedy is considered adequate. They are: 
 (1) Nuisances which are temporary and single and 
 which do not cause irreparable injury. (2) Nuisances 
 which, not doing irreparable injury, are yet repeated, 
 but only occasionally, not so often that the suits at law 
 to redress them cause a vexatious or oppressive amount 
 of litigation.^ 
 
 3 Goldsmid v. Tunbridge etc. Commrs., L. E. 1 Ch. App. 349, 354, 
 355. 
 
 4 Swaine v. Great Northern Ey, Co., 4 De Gex, J. & S. 211, 216. 
 "The present or threatened injury must be real, not trifling, tran- 
 sient, or temporary": 4 Pom. Eq. Jur., § 1350; cited, McLaughlin 
 V. Sandusky, 17 Neb. 110, 22 N. W. 241. 
 
 B For cases of this kind, see Attorney-General v. Sheflield Gas etc.
 
 § 514 EQUITABLE EEMEDIEb. 864 
 
 § 514. Extent of the Jurisdiction; Irreparable and Con- 
 tinning or Recurring Nuisances. — In the preceding para- 
 graph it is said that the chief forms in which the inade- 
 quacy of the common law — the fundamental basis of 
 all equity jurisdiction over torts — manifests itself, are 
 cases of irreparable injury, and cases of continuous or 
 repeated nuisances involving a multiplicity of suits at 
 law.® These two gi-ounds of jurisdiction do not read- 
 ily, if at all, admit of separate treatment, however. 
 The definitions of nuisance very generally agree in in- 
 cluding as one of its elements that it is something 
 which interferes with one's comfort in, or enjoyment of, 
 his i)roperty, and it is the loss of this comfort and en- 
 joyment in the use of his property which gives the right 
 of action. Now "comfort" and "enjoyment" are almost 
 
 Co., 3 De Gex, M, & G. 304; Blain v. Brady, 64 Md, 373, 1 Atl. 609; 
 Bartlett v. Moyers, 88 Md, 715, 42 Atl. 204; Harrison v. South wark 
 etc. Co., [1891] 2 Ch. D. 409; Peterson v. City of Santa Kosa, 119 
 Cal. 387, 51 Pac. 557; Hagge v. Kansas etc. Co., 104 Fed. 391; Nel- 
 son V. Milligan, 151 lil. 462, 38 N. W. 239; Cooke v, Forbes, L. R. 
 
 3 Eq. 166; Mayor etc. Canton v. Canton etc. Warehouse (Miss.), 36 
 South. 266. See, also, Dennia v. Mobile etc. Co., 139 Ala. 109, 35 
 South. 651; Penn. etc. Co. v. City of Chicago, 181 111, 289, 54 N. E. 
 825, 53 L. E. A. 223. 
 
 6 "Whenever this court interferes by way of injunction in the 
 shape of prevention rather than allow an injury to be inflicted, it 
 does so in cases where the act complained of is one in respect of 
 which there is also a legal remedy, upon two grounds (they being of 
 a totally distinct character) — first, whore the injury is irreparal.le 
 in the eye of this court, as the cutting down of a tree, although its 
 value may be paid for; and secondly, where the act is continuous, and 
 so continuous that this court acting on the same principle as it acted 
 on in olden times with reference to bills of peace by restraining 
 actions after repeated trials, so now will restrain repeated acts which 
 can only end in incessant actions being brought, will restrain them 
 at once on account of the continuous character of the wrong, which 
 continuous character in itself makes the injury to be grievous, and 
 So far in the eye of this court, irreparable": Per Wood, L. J., in 
 Attorney-General v. Cambridge etc. Gas Co., 17 Week, Kep. 145, L. R. 
 
 4 Ch. App. 71.
 
 865 INJUNCTION AGAINST NUISANCE. § 514 
 
 ideal illustrations of the sort of thing for the permanent 
 loss of which damages will not be a fair or just com- 
 pensation. They are not to be paid for in money. 
 They are in this respect essentially of the same char- 
 acter as the pretium affectionis which the courts some- 
 times have made the basis for decreeing specific per- 
 formance of contracts to sell chattels, or for injunctions 
 against trespasses to chattels. Hence it follows that 
 most nuisances when permanent, or when continuing 
 for any considerable length of time, or when frequently 
 repeated, are properly to be classed as irreparable in 
 their nature. Besides this feature of nuisance (which 
 pertains only to its effect on the person injured) it is 
 to be remembered that the property affected is usually 
 land, which is regarded as peculiarly within the pro- 
 tection of equity; and so far as one's enjoyment of his 
 land is destroyed, it is a destruction, if not physical, 
 yet at least in the character in which it has been held 
 and enjoyed, of what is generally regarded in equity 
 as property so peculiar as not properly to be made a 
 subject of compensation by a jury. In brief, then, a 
 continuing nuisance is in general an irreparable in- 
 jury, for two distinct reasons: (1) From its effect on 
 the person injured. (2) From the destructive nature of 
 the injury to the use of property of a peculiar character.'^ 
 
 7 The argument of the text is well illustrated by the facts and 
 the language of the court in Campbell v. Seaman, 63 N. Y. 568, 20 Am. 
 Eep. 567, as the following quotation from the decision, per Earl, J., 
 will show: "The plaintiffs had built a costly mansion and had laid 
 out their grounds and planted them with ornamental and useful trees 
 and vines, for their comfort and enjoyment. How can one be com- 
 pensated in damages for the destruction of his ornamental trees, and 
 the flowers and vines which surround his homef How can a jury 
 estimate their value in dollars and cents? The fact that trees and 
 vines are for ornament or luxury entitles them no less to the protec- 
 tion of the law. Every one has the right to surround himself with 
 articles of luxury, and he will be no less protected than one who pro- 
 Equitable Remedies, VoL I — 55
 
 § 514 EQUITABLE EEMEDIES. 866 
 
 But in both the above reasons the fact that the nuisance 
 is permanent or continuous or repeated is a very im- 
 portant, if not essential, element, and, as most nuisances 
 are permanent or continuous, or repeated, this fact alone 
 is enough to bring them into equity. Hence it has not 
 been necessary for the courts to attempt careful defini- 
 tions of irreparable injury in nuisance cases, as a more 
 obvious and simple ground of jurisdiction is usually 
 ready at hand. And the fact that the studied care of 
 the meaning of the term, which is common in the cases 
 on trespass, is largely wanting in the cases on nuisance, 
 may be perhaps thus explained.* This may also ex- 
 
 vides himself only with articles of necessity. The law will protect a 
 flower or a vine as well as an oak. These damages are irreparable, 
 too, because the trees and vines cannot be replaced, and the law 
 will not compel a person to take money rather than the objects of 
 beauty and utility which he places around his dwelling to gratify 
 his taste or to promote his comfort and his health. 
 
 "Here the injunction also prevents a multiplicity of suits. The 
 injury is a recurring one, and every time the poisonous breath from 
 defendant's brick-kiln sweeps over plaintiff's land they have a cause 
 of action. Unless the nuisance be restrained the litigation would be 
 interminable. The policy of the la's*- favors, and the peace and gooil 
 order of society are best promotea by the termination of such litiga- 
 tions by a single suit. 
 
 "The fact that this nuisance is not continual, and that the in- 
 jury is only occasional, furnishes no answer to the claim for an in- 
 junction. The nuisance has occurred often enough within two years 
 to do the plaintiffs large damage. Every time a kiln is burned some 
 injury may be expected, unless the wind should blow the poisonous 
 gas away from the plaintiffs' land. Nuisances causing damage less 
 frequently have been restrained." 
 
 8 The following are illustrations of the rather cursory treatment 
 given to the definition of the word in the cases on nuisance: "The 
 foundation of this jurisdiction, interfering by injunction, is that head 
 of mischief, alluded to by Lord Hardwicke (1 Dick. 164), that sort 
 of material injury to the comfort of the existence of those who dwell 
 in the neighboring house, requiring the application of a power to pre- 
 vent, as well as remedy, an evil, for which damncres, more or less, 
 would be given in an action at law": Per Lord Eldon in Attorney- 
 Gftneral v, Nichol, 16 Ves. 338, 342. "The familiar ground on which
 
 867 INJUNCTION AGAINST NUISANCE. 8 5U 
 
 plain the frequent practice of the equity courts in nui- 
 sance cases to confine their attention to the question of 
 fact whether a nuisance exists or not, and to assume 
 jurisdiction as a matter of course.^ Both of the above 
 
 the extraordinary power of the court is invoked in such cases is that 
 it is inequitable and unjust that the injured party should be compelled 
 to resort to repeated actions at law to recover damages for his injury, 
 which, after all, in this class of cases, are incapable of measurement": 
 Per Pitney, V. C, in Hennessy v. Carmony, 50 N. J. Eq. 616, 2b Atl. 374, 
 377, 378. "There are many injuries which in the very nature of things 
 cannot be repaired by any money consideration— such, for instance, aa 
 result from acts which outrage the feelings and wound the sensibili- 
 ties, or deprive us of objects of affection, and of things, perhaps 
 trivial in themselves, but of inestimable value by reason solely of 
 being associated with some precious memory or touching incident of 
 our lives; or it may be that the maintenance of the writ was re- 
 quired to preserve to us our homes, and to establish us in a state or 
 condition which, lost for the moment, can never be recovered nor the 
 loss atoned for by money": Crescent City etc. Co. v. Police Jury, 32 
 La. Ann. 1194, quoted with approval in State ex rel. Violett v. King, 
 46 La. Ann. 78, 14 South, 423, 425. 
 
 9 Crump V. Lambert, L. E. 3 Eq. 409; Proprietors etc. Wharf v. 
 Proprietors etc. Wharf, 85 Me. 175, 27 Atl. 93; Hennessy v. Car- 
 mony, 50 N. J. Eq. 616, 25 Atl. 374. In Crump v. Lambert, Lord 
 Eomilly, M. E., said: "With respect to the question of law, I consider 
 it to be established by numerous decisions that smoke, unaccompanied 
 with noise or noxious vapors, that noise alone, that offensive vapors 
 alone, although not injurious to health, may severally constitute an 
 injury to the owner of adjoining or neighboring property; that if 
 they do so, substantial damages may be recovered at law, and that 
 this court, if applied to, will restrain the continuance of the nuisance 
 by injunction in all cases where substantial damages could be re- 
 covered at law The law on this subject is,. I apprehend, the 
 
 same, whether it be enforced by action at law or by bill in equitj'. 
 In any case where a plaintiff could obtain substantial damages at law, 
 he is entitled to an injunction to restrain the nuisance in this 
 
 court The real question in all the cases is the question of 
 
 fact, viz., whether the nnnoyance is such as materially to interfere 
 with the ordinary comfort of human existence." In Hennessy v. 
 Carmony, the court, per Pitney, V. C, said: "The result of a careful 
 review of the evidence upon my mind is to lead me to the conclusion 
 that the degree of injury is such as to entitle the complainant to 
 damages in an action at law, with the result that he is entitled to an 
 injunction in this court."
 
 I 514 EQUITABLE BEMEDIEa 868 
 
 suggestions are borne out by the following language of 
 the court in a well-considered American case: *'The 
 next position taken in behalf of the defendant is, that 
 even if the subtraction of this water is to be held to be 
 wrongful with respect to the complainant, still a court 
 of equity will not give relief by way of injunction, but 
 will leave the parties injured to their remedy at law. 
 If this were an application for a preliminary injunction 
 it is clear that an objection of this kind should prevail, 
 for the act which the defendant threatens to do is ob- 
 viously not of a character to inflict any irreparable in- 
 jury. But after a court of equity has entertained a 
 bill, and, instead of sending the case to a trial at law, 
 has itself tried the questions of fact involved, and 
 settled the legal right in favor of the complainant, it 
 certainly would be a result much to be deprecated, if, 
 at such a stage of the controversy, it was the law that 
 the chancellor were required to say to such a complain- 
 ant, 'Your right is clear; if you sue at law you must 
 inevitably recover, and after several recoveries it will 
 then be the duty of this court, on the ground of avoid- 
 ing a multiplicity of suits, to enjoin the continuance of 
 this nuisance; still you must go through the form of 
 bringing such suits, before this court of equity can or 
 will interfere.' In those cases in which to the mind of 
 the chancellor, the right of the complainant is clear, 
 and the damage sustained by him is substantial, so that 
 his right to recover damages at law is indisputable, and 
 the chancellor has considered and established his right, 
 I think it not possible that any authority can be pro- 
 duced which sustains the doctrine contended for by the 
 counsel of the defendant."^® 
 
 10 Per Beasley, C. J., in Higgins t. Flemington Water Co., 36 N- 
 J. Eq. 538, 544.
 
 669 INJUNCTION AGAINST NUISANCE. § 615 
 
 § 515. Illustrations. — The cases in which nuisances 
 were enjoined were not frequent before the middle of 
 the last century, but since that time they have become 
 very numerous, covering a wide variety of states of 
 fact Illustrations are injunctions against the pollu- 
 tion,^ ^ diversion,^^ obstruction,^^ or abstraction^* of run- 
 ning water; the pollution, taking, or waste of percolat- 
 ing water ;^^ noises of various kinds ;^® vibration from 
 
 11 Crossley v. Lightowler, L. R. 2 Ch. App. 478; Holt v. Corporatiod 
 of Eochdale, L. R. 10 Eq, 354; Mclntyre Bros. v. McGavin, [1893] 
 App. Cas, 268; Piatt v. Waterbury, 72 Conn. 531, 77 Am. St. Eep. 
 335, 45 Atl. 154, 48 L. R. A. 691; Chapman v. City of Rochester, 110 
 N. Y. 273, 6 Am. St. Eep. 366, 18 N. E. 88; Strobel v. Kerr Salt Co., 
 164 N. Y. 303, 79 Am. St. Rep. 643, 58 N. E. 142, 51 L. R. A. 6S7; 
 Fuller V. Swan etc. Co., 12 Colo. 12, 19 Pac. 836; Village of Dwight 
 V. Hayes, 150 111. 273, 41 Am. St. Eep. 360, 37 N. E. 218; Valparaiso 
 V. Hagen, 153 Ind. 337, 74 Am. St. Rep. 305, 54 N. E. 1062, 48 L. E. 
 A. 707; Barton v. Union Cattle Co., 28 Neb. 350, 26 Am. St. Rep. 
 340, 44 N. W. 454, 7 L. R. A. 4o7. 
 
 12 Pugh V. Golden etc. Ry. Co., L. E. 15 Ch. D. 330; Gardner v. 
 Village of Newburgh, 2 Johns. Ch. 162, 7 Am. Dec. 526; Smith v. 
 City of Rochester, 92 N. Y. 463, 44 Am. Rep. 393; Pine v. Mayor etc. 
 N. Y., 103 Fed, 337; Rupley v. Welch, 23 Cal. 452; Ferrea v. Knipo, 
 28 Cal. 340, 87 Am. Dec. 128; Moore v. Clear Lake Water Works, 68 
 Cal. 146, 8 Pac. 816; Saint v. Guerrerio, 17 Colo. 448, 31 Am. St. Rep. 
 320, 30 Pac. 335; Watson v. New Milford etc. Co., 71 Conn. 442, 42 
 Atl. 265; Kay v. Kirk, 76 Md. 41, 35 Am. St. Rep. 408, 24 Atl. 326; 
 Raymond v. Winsette, 12 Mont. 551, 33 Am. St. Rep. 604, 31 Pac. 
 537. 
 
 13 McKee v. Delaware etc. Co., 125 N. Y. 353, 21 Am. St. Eep. 
 740, 26 N. E. 305; Belknap v. Trimble, 3 Paige, 577. 
 
 14 Mostyn v. Atherton, [1899] 2 Ch. 360; Arthur v. Case, 1 Paige, 
 447. For a fuller discussion of nuisances to running water, see 
 post, Vol. II, chapter on Injunctions for Protection of Water Rights. 
 
 15 Ballard v. Tomlinson, L. R. 29 Ch. D. 115; Proprietors etc. 
 River v. Braintree etc. Co., 149 Mass. 480, 21 N. E. 761, 4 L. R. A. 
 272; Barclay v. Abraham, 121 Iowa, 619, 100 Am. St. Rep. 365, 96 
 N. W. 1080. See Trinidad Asphalt Co. v. Abard, 68 L. J. P. C. 114, 
 [1S99] App. Cas. 594, 81 L. J., N. S., 132, 48 Week. Rep. 116. 
 
 16 Soltau V. De Held, 2 Sim., N. S., 133 (ringing of bells in a 
 chapel and a church at frequent intervals every day); Walker v. 
 Brewster, L. R. 5 Eq. 25 (brass band which played twice a week from 
 two or three o'clock in the afternoon until eleven o'clock at night);
 
 § 515 EQUITABLE REMEDIES. S70 
 
 machinery or from pounding ;^^ unpleasant odors from 
 urinals, privies, horses, stables, slaughter-houses , and 
 the like;^^ noxious vapors, gases or smoke from brick- 
 kilns, factories, blacksmith-shops and the like;^^ ob- 
 jects or acts which are dangerous to those in their vicin- 
 ity, such as powder magazines,-" hospitals for contag- 
 
 Bellamy v. Wells, 60 L. J. Ch, D. 156 (sporting club, patrons of which 
 annoyed the plaintiffs by whistling for cabs after midnight); Ball 
 V. Eay, L. E. 8 Ch. App. 467 (noise made by horses in a stable adjoining 
 the plaintiff's hotel); Bishop v. Banks, 33 Conn. 118, 87 Am. Dec. 
 197 (bleating of calves during the night-time in the defendant's 
 slaughter-house pens); Hill v. McBurney, 112 Ga. 788, 38 S. E. 42, 
 52 L. E. A. 398 (blowing of a factory whistle at unseasonable hours) ; 
 Trom V. Lewis, 31 Ind. App. 178, 66 N. E. 490 (beer-garden); Snyder 
 V, Cabell, 29 W. Va. 48, 1 S. E. 241 (skating-rink); Stevenson v. 
 Pucci, 32 Misc. Kep. 464, 66 N. Y. Supp. 712 (blasting near plaintiff's 
 house before seven o'clock in the morning or after six o'clock in the 
 evening); Sturges v. Bridgman, L. E, 11 Ch. D. 852 (vibration from 
 mortar and pestle); Eogers v. John Week etc. Co., 117 Wis. 5, 93 N. 
 W. 821. 
 
 17 Hennessy v. Carmony, 50 N. J, Eq. (5 Dick.) 616, 25 Atl. 374; 
 Sturgis V. Bridgman, L. E. 11 Ch. D. 852; English v. Progress etc. 
 Co., 95 Ala. 2'59, 10 South. 134 (injunction refused, because fact that 
 nuisance existed was not established); Colwell v. St. Pancras etc. 
 Council, [1904] L. E. 1 Ch. 707. 
 
 18 Vernon v. Vestry etc. Westminster, L. E. 16 Ch. D. 449; Eadican 
 V. Buckley, 138 Ind. 582, 38 N. E. 53; Perrine v. Taylor, 43 N. J. E.j. 
 128, 12 Atl. 769; Lippincott v. Leslie, 44 N. J. Eq. 120, 14 Atl. 103; 
 Eapier v. London etc. Co., [1893] 2 Ch. 589; Pruner v. Pendleton, 
 75 Va. 516, 40 Am. Eep. 738; Eeichert v. Geers, 98 Ind. 73, 49 Am. 
 Eep. 736; Shroyer v. Campbell, 31 Ind. App. 83, 67 N. E. 193. 
 
 19 Campbell v. Seaman, 63 N. Y. 568, 20 Am. Eep. 567; Pollock v. 
 Lester, 11 Hare, 266'; Crump v. Lambert, L. R. 3 Eq. 409; Eoss v. 
 Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654; McMorran v. Fitzgernl.I, 
 106 Mich. 649, 58 Am. St. Eep. 511, 64 N. W. 569; Peacock v. Spitzel- 
 berger, 16 Ky. Law Eep. 803, 29 S. W. 877; Daugherty etc. Co. v. 
 Kittanning etc. Mfg. Co., 178 Pa. St. 215, 35 Atl. 1111. See, also, St. 
 Louis Safe Deposit & Sav. Bank v. Kennett Estate, 101 Mo. App. 370, 
 74 S. W. 474 (heat from smoke-stack adjoining plaintiff's building). 
 
 20 Heeg V. Licht, 80 N. Y. 579, 36 Am. Eep. 654; Wier's Appeal, 74 
 Pa. St. 230; Tyner v. People's Gas Co., 131 Ind. 408, 31 N. E. 61 (keon- 
 ing nitroglycerin near plaintiff's dwelling); Blanc v. Murray, 36 T^a. 
 Ann. 162, 51 Am. Eep. 7 (inflammable building) ; Kaufman v. Stein, 138
 
 871 INJUNCTION AGAINST NUISANCE. § 515 
 
 ious diseases,^^ blasting"^ and similar dangors; things 
 whifh offend the moral sense, such as brothels ;'^^ ob- 
 
 Ind. 49, 46 Am. St. Eep. 368, 37 N. E. 33 (same as preceding case). 
 In Heeg v. Licht, supra, the injunction was sought to restrain the 
 defendant from manufacturing and storing upon his premises fire- 
 works or other explosive substances. In pointing out that the exis- 
 tence of a nuisance does not depend at all upon any negligence of 
 the defendant, the court, per Miller, J., said: "Most of the cases cited 
 rest upon the maxim "sic iitere tuu," etc., and where the right to tho 
 undisturbed possession and enjoyment of property comes in conflict 
 with the rights of others, that it is better, as a matter of public 
 policy, that a single individual should surrender the use of his land 
 for especial purposes injurious to his neighbors or to others, than 
 that the latter should be deprived of the use of their property alto- 
 gether or be subjected to great danger, loss and injury, which might re- 
 sult if the rights of the former were without any restriction or re- 
 straint. The keeping of gunpowder or other materials in a place, or 
 under circumstances, where it would be liable, in case of explosion, to 
 injure the dwelling-houses or the persons of those residing in close prox- 
 imity, we think rests upon the same principle, and is governed by the 
 same rules. An individual has no more right to keep a magazine 
 of powder upon his premises, which is dangerous, to the detriment of 
 his neighbor, than he is authorized to engage in any other business 
 which may occasion serious consequences. ' ' With Blanc v. Murray 
 and Kaufman v. Stein, supra, compare Ehodes v. Dunbar, 57 Pa. St. 
 (7 P. F. Smith) 274, 98 Am. Dec. 221; Duncan v. Hayes, 22 N. J. Eq. 
 25; Chambers v. Cramer, 49 W. Va. 395, 38 S. E. 691, 54 L. R. A. 545; 
 English v. Progress etc. Co., 95 Ala. 259, 10 South. 134 — which cases 
 hold that mere increased risk from fire and consequent rise of insur- 
 ance rates do not constitute a nuisance and will not be enjoined. 
 
 21 Metropolitan Asylum v. Hill, L. R. 6 App. Cas. 196; Gilford v. 
 Babies' Hospital etc. N. Y., 21 Abb. N. C. 159, 1 N. Y. Supp. 448. 
 
 22 Hill V. Schneider, 4 N. Y. Ann. Cas. 70, 13 App. Div, 299, 43 
 N. Y. Supp. 1; Stevenson v. Pucci, 32 Misc. Rep. 464, 66 N. Y. Supp. 
 712. 
 
 23 Cranford v. Tyrrell, 128 N. Y. 341, 28 N. E. 514; Hamilton v. 
 Whitridge, 11 Md. 128, 69 Am. Dec. 184; Weakley v. Page, 102 Tenn. 
 178, 53 S. W, -551, 46 L. R. A. 552; Farrell v. Cook, 16 Neb. 483, 49 
 Am. Eep. 721, 20 N. W. 720 (standing of jacks and stallions in 
 sight of plaintiff's dwelling); Ingersoll v. Rousseau, 35 Wash. 92, 
 76 Pac. 513; Dempsie v. Darling (Wash.), 81 Pac. 152. These 
 cases do not, of course, hold that immorality is per se a basis 
 for an injunction; such further characteristics as will brinqr it 
 within the usual delinitinns of nuisance must be shown. In Craw-
 
 J 515 EQUITABLE REMEDIES. 87L 
 
 struction of highways^^ or navigation f^ removal of sup- 
 port to land;^^ acts which cause a physical invasion of 
 the plaintiff's land, such as overflowing it,^*^ or casting 
 
 ford V. Tyrrell, supra, Gray, J., said on this point: "The rule of 
 law requires of him who complains of his neighbor's use of his 
 property, and seeks for redress and to restrain him from such use, 
 that he should show that a substantive injury to property is com- 
 mitted. The mere fact of a business being carried on, which may 
 be shown to be immoral and, therefore, prejudicial to the character 
 of the neighborhood, furnishes, of itself, no ground for equitable in- 
 terference at the suit of a private person." 
 
 24 Cabbell v. Williams, 127 Ala. 320, 28 South. 405; Green v. Oaks, 
 17 111. 249; Martin v. Marks, 154 Ind. 549, 57 N. E. 249; Newcome 
 V. Crews, 98 Ky. 339, 32 S. W. 947; Streeter v. Stainaker, 61 Neb. 
 205, 85 N. W. 47; Morris etc. Co. v, Greenville etc. Co. (N, J.), 46 
 Atl. 638; De Witt v. Van Schoyk, 110 N. Y. 7 (affirming 35 Hun, 103), 
 17 N. E. 42o, 6 Am. St. Eep. 342; Hill v. Hoffman (Tenn. Ch. App,), 
 88 S. W. 929; Callanan v. Gilman, 107 N. Y. 360, 1 Am. St. Eep 
 838, 14 S. E. 264; Mayor etc. Columbus v. Jaques, 30 Ga. 506; Winsor 
 V, German Sav. & L. Soc, 31 Wash. 365, 72 Pac. 66 (obstructing com- 
 mon hallway). An unauthorized railroad track in a street may be 
 Buch a nuisance: Hoist v. Savannah Electric Co., 131 Fed. 931; Lake 
 Shore & M. S. Ey. Co. v. City of Elyria, 69 Ohio, 414, 69 N. E. 738; 
 Tennessee Brewing Co. v. Union Ey. Co. (Tenn.), 85 S. W. 864. See, 
 also, Zook V. Pennsylvania R. Co., 206 Pa. St. 603, 56 Atl. 82. 
 
 26 Pennsylvania v. Wheeling etc. Co., 13 How. (U. S.) 518, 14 L. 
 ed. 249; Attorney-General v. Eau Claire, 37 Wis. 400. See, also, 
 Monroe Mill Co. v. Menzel, 35 Wash. 487, 102 Am. St. Eep. 905, 77 
 Pac. 813 (floating timber); Eeyburn v. Sawyer, 135 N. C. 328, 102 
 Am. St. Eep. 555, 47 S. E. 761. 
 
 26 Trowbridge v. True, 52 Conn. 190, 32 Am. Eep. 579; Finegao 
 V. Eckerson, 32 App. Div. 233, 52 N. Y. Supp. 993; Hunt v. Peake, 
 Johns. 705, 6 Jur., N. S., 1071; Morrison v. Latimer, 51 Ga. 519. 
 
 27 Dayton v. Drainage Commrs., 128 111. 271, 21 N. E, 198; Pence 
 V. Garrison, 93 Ind. 345; Jacobsen v. Van Boening, 48 Neb. 80, 48 
 Am. St. Eep. 684, 66 N. W. 993, 32 L. R. A. 229; Lake Erie etc. Co. v. 
 Young, 135 Ind. 426, 41 Am. St. Eep. 430, 35 N. E. 177; Patoka Tp. 
 v. Hopkins, 131 Ind. 142, 31 Am. St. Eep. 417, 30 N. E. 
 896; Pettigrew v. Village of Evansville, 25 Wis. 223, 3 Am. Eep. 
 50; Lamborn v. Covington Co., 2 Md. Ch. 409; Moore v. Chicago 
 etc. Co., 75 Iowa, 263, 39 N. W. 390; Baker v. Weaver, 104 Ga. 228, 30 
 S. E. 726; Davis v. Londgreen, 8 Neb. 43; Noyes v. Cosselinan, 29 
 Wash. 63o, 92 Am. St. Eep. 937, 70 Pac. 61; Sullivan v. Dooley, 31 
 Tex. Civ. App. 589, 73 S. W. 82; Starr v, Woodberry etc. Works*
 
 873 INJUNCTION AGAINST NUISANCE. § HIO 
 
 refuse matter upon it.^^ This list^^ is not dositrned to 
 be an exhaustive classification, — from the nature of 
 nuisance no list could be exhaustive — but it will serve 
 to show the more common forms of nuisances which 
 have been enjoined and something of the extent of 
 equity jurisdiction of the subject. 
 
 § 516. Injunctions on Sole Ground of Preventing Multi- 
 plicity of Suits — In the cases in which the only reason 
 of equity's intervention to enjoin has been to prevent 
 the necessity of a multiplicity of suits at law because of 
 a continuing or recurring nuisance, the courts have 
 shown the same lack of unanimity that is always com- 
 mon to this ground of jurisdiction, whether it arises 
 from a trespass, nuisance or other tort. Consonant to 
 principle, the weight of authority holds that the mere 
 existence of a continuing or recurring nuisance, how- 
 ever trivial, provided only it is sufficient to sustain an 
 action at law for damages, will support a bill for an 
 injunction.^** There are authorities, however, which 
 bold that this is not enough to base an injunction upon, 
 
 (N. J. Ch.), 48 Atl. 911; Abbott v. Pond, 142 Cal. 393, 76 Pac. 60; Car- 
 ley V. Jennings, 131 Mich. 385, 91 N. W. 634. 
 
 28 Logan V. Driscoll, 19 Cal. 623, 81 Am, Dec. 90 (mining debris 
 washed upon the plaintiff's land); Haugh's Appeal, 102 Pa. St. 42, 
 48 Am. Eep. 193 (privy from which fluid percolated into the plain- 
 tiff's well). 
 
 29 In the making of the above List, the collection and arrangement 
 of the cases in 1 Ames's Cases in Equity Jurisdiction, pages 611-614 
 has been of material assistance. 
 
 30 Whitfield v. Eogers, 26 Miss. (4 Cush.) 84, 59 Am. Dec. 244; 
 Baltimore etc. K. E. Co. v. Baptist Church, 108 U. S. 317, 329, 2 Sup. 
 Ct. 719, 27 L. ed. 739; City of Demopolis v. Webb, 87 Ala. 659, 6 
 South. 408; Lux v. Haggin, 69 Cal, 256, 10 Pac. 674; Koopman v. 
 Blodgett, 70 Mich. 610, 14 Am. St. Eep. 527, 38 N. W. 649; Stevens 
 V. Stevens, 52 Mass. (11 Met.) 251, 45 Am. Dec. 203; Fleischner v. 
 Citizens' etc. Co., 25 Or. 119, 35 Pac. 174; Corning & Winslnw v. 
 Troy etc. Factory, 40 N. Y. 191, 39 Barb. 311. 34 Barb. 485. 6 How. 
 Pr. 89; Sullivan v. Jones etc, Co., 208 Pa. St, 540, 57 Atl. 1065; Har-
 
 § 516 EQUITABLE REMEDIES. 874 
 
 and that the only multiplicity of suits which equity 
 will interfere to prevent is that in which there are a 
 number of parties to the controversy on one side or the 
 other.^^ It may be added further, though the matter 
 calls for no discussion in this place, that the subject 
 of nuisance is the most fruitful field in furnishing the 
 questions of greatest difficulty under the head of bills 
 of peace, viz., questions as to the propriety of joining as 
 plaintiffs or defendants parties between whom there is 
 no "community of interest in the subject-matter of the 
 suit. ""2 
 
 per etc, Co. v. Mountain etc. Co., 65 N. J. Eq. 479, 56 Atl. 297; Car- 
 penter V. Capital etc. Co., 178 111. 29, 69 Am. St. Eep. 286, 52 N. E. 
 973, 43 L. R. A. 645; Sherry v. Perkins, 147 Mass. 212, 9 Am. St. Eep. 
 689, 17 N. E. 307; Campbell v. Seaman, 63 N. Y. 568, 20 Am. Eep. 
 567; Hennessy v. Carmony, 50 N. J. Eq. (5 Dick.) 016, 25 Atl. 374. 
 in Whitfield v. Eogers, supra, the bill was to enjoin the erection of 
 a mill-dam which would cause the plaintiff's land to be overflowed. 
 In affirming the issuance of an injunction by the lower court, Handy, 
 J., said: "It is insisted, in the first place, on the part of the appel- 
 lant, that the complainant was not entitled to relief in equity on 
 the ground of the private nuisance; because relief in equity will 
 only be granted in such cases where the mischief is irreparable and 
 cannot be compensated in damages. Authorities are to be found 
 holding this doctrine; but the modern and more approved cases ex- 
 tend the relief much further The inundations occasioned by 
 
 the erection of the dam, the injuries thereby caused to the complain- 
 ant's lands, and the periodical destruction of his timber, did not 
 constitute a single trespass, but, from their nature, must have been 
 'constantly recurring grievances.' It would hav^ been unreasonable 
 and oppressive to force the complainant into a cou-< of law to ro- 
 dress each repetition of the injury as it might recur from time to 
 time; and therefore, on the very principle of 'suppressing intermina- 
 ble litigation,' and of 'preventing multiplicity of suits,' courts of 
 equity alone can give just and adequate relief in such cases." 
 
 31 See Cherry v. Stein, 11 Md. 1, and General Electric Ry. Co. v. 
 Chicago etc. Co., 184 111. 588, 56 N. E. 963, which in effect hold that 
 the fnet of a nuisance being continuous is not enough to allow a 
 plaintiff to come into equity, though there is no discussion of the 
 point in either case. 
 
 32 See the discussion of this subject in 1 Pom. Eq. Jur. §§ 255- 
 270.
 
 875 r\J UNCTION AGAIiNST NUISANCE. § 517 
 
 § 517. Miscellaneous Grounds of Jurisdiction. — It has al- 
 ready been pointed out in these pages that the funda- 
 mental reason for equity's enjoining nuisances is the lack 
 of an adequate legal remedy. It has also been seen that 
 the most common illustrations of inadequacy are the 
 cases in which the injury is irreparable or of a continu- 
 ing or recurring nature, and that these two grounds of 
 jurisdiction are usually found together in the same 
 cases. This is so largely true that almost all of the 
 cases are rested on one or both of these grounds. The 
 few cases that remain are, perhaps, on this account, the 
 more significant in demonstrating that the fundamental 
 reason — the inadequacy of the legal remedy — is not to 
 be reduced to a few or any specific number of forms of 
 manifestation. It is an open inquiry in every case 
 whether the plaintiff can get adequate relief at law; if 
 not, for any reason, he may come into equity. Here, 
 as elsewhere, "it is not enough that there is a remedy 
 at law; it must be plain and adequate, or, in other 
 words, as practical and efficient to the ends of justice 
 and its prompt administration as the remedy in 
 equity."^^ Hence inadequacy has been found in the 
 fact that independent acts of several defendants com- 
 bine to produce the injury to the plaintiff so that the 
 particular share of damage done by each one is incap- 
 able of ascertainment.^^ This reason may apply 
 
 33 Quoted in Lockwood v. Lawrence, 77 Me. 297, 312, 52 Am. Eep. 
 763, from Boyce's Exrs. v. Grundy, 3 Pet. 210, 215, 7 L. ed. 055. 
 
 34 Woodruff V. North Bloomfield Gravel Min. Co., 8 Saw. (U. S. 
 C. C.) 628, 16 Fed. 25; Lockwood v. Lawrence, 77 Me. 297, 52 Am. 
 Eep. 763; Woodyear v. Schaefer, 57 Md. 1, 40 Am, Eep. 419; 
 Madison v. Ducktown, S., C. & L Co. (Tenn.), 83 S. W. 658. In thd 
 first cited of these cases the court said: "There is a very great dif- 
 ference between seeking to recover damages at law for an injury 
 already inflicted by several parties acting independently of each 
 other, and restraining parties from committing a nuisance in the 
 fxiture. In equity the court is not tied down to one particular form
 
 S 517 EQUITABLE REMEDIES. 87fi 
 
 equally to different states of facts whenever, for anj 
 cause, the amount of damage is unascertainable. Ita 
 substance is simply the obvious proposition that when- 
 ever the estimate of damages recoverable at law must 
 be based largely, or to any considerable degree, upon 
 conjecture, the legal remedy cannot be adequate.^** 
 
 of judgment. It can adapt its decrees to the circumstances in each 
 case, and give the proper relief as against each party, without ref- 
 erence to the action of others, and without injury to either. Each 
 is dealt with, with respect to his own acts, either as affected or as 
 unaffected b7 the acts of the others. It is not necessary for the 
 prevention of future injury, to ascertain what particular share of the 
 damages each defendant has inflicted in the past, or is about to in- 
 flict in the future. It is enough to know he has contributed and is 
 continuing to contribute to a nuisance, without ascertaining to what 
 extent, and to restrain him from contributing at all." 
 
 85 In Heilbron v. Fowler Switch Canal Co., 75 Cal. 426, 7 Am. St. 
 Eep. 183, 17 Pac. 535, the facts were that the defendant proposed 
 to divert fifteen hundred cubic feet of water per second from Kings 
 river, which formed the boundary of the plaintiff's farm for thirty 
 miles and flowed through it for ten miles. In affirming a judgment 
 granting an injunction the court, per Temple, J., said: "It does not 
 follow because the injury is incapable of ascertainment, or of being 
 computed in damages, and therefore only nominal damages can be 
 recovered, that it is trifling or inconsiderable. It is doubtful if it 
 can be said that there is any evidence in the case which tends to 
 show, or if that which was offered would have tended to show, that 
 the injury to plaintiffs was inconsiderable, that it was unascertain- 
 able, and in that sense inappreciable; may be a good reason why an 
 
 injunction should issue It is obvious that in a climate like 
 
 that where this land is situated, the benefit derived from a flow of 
 water for thirty miles along its boundary, and ten miles through it, 
 cannot be inconsiderable, but yet the extent of benefit must ever 
 be an unknown quantity." In Lockwood v. Lawrence, supra, the 
 court, per Foster, J., said: "The very difficulty of obtaining substan- 
 tial damages was stated to be a ground for relief by injunction in 
 Clowes v, Staffordshire Potteries Co., 8 L. E. Ch. App, 125. With stilJ 
 greater force does this apply where the injury is caused by so many, 
 and in such a way, that it would be difficult if not impossible to ap- 
 portion the damage, or say how far anyone may have contributed to 
 the result, and so damages would be but nominal, and repeated actions, 
 without any substantial benefit, might be the result." See, to the 
 same effect, Lyon v. McLaughlin, 32 Vt. 423. See, also, Gilbert v.
 
 877 INJUNCTION AGAINST NUISANCE. § 517 
 
 Other unusual reasons for granting injunctions have 
 been : in a bill to enjoin the obstruction of a public 
 street by municipal officers, that the social standing, 
 and character and reputation, of the defendants would 
 make indictment ineffectual, while abatement would 
 not be an adequate remedy because the expense of abat- 
 ing would fall on the tax-pa^-ers ;^^ and, in a bill by a 
 tenant to have a bridge, which obstructed the entrance 
 to the building he occupied, removed, that the plain- 
 tiff's legal remedy was inadequate because he, being a 
 tenant and not owner of the fee, could not maintain 
 an action for abatement but could sue only in case for 
 damages.^^ No case has been found so holding, but it 
 would seem clear that the insolvency of a defendant 
 might well be a basis of injunction here just as, by the 
 weight of authority, it is in trespass.^^ As in trespass, 
 too, the basis of an injunction is sometimes said to be 
 that otherwise the defendant would acquire a prescrip- 
 tive right to do the wrongful act.^^ 
 
 Mickle, 4 Sandf. Ch. 357. It is not meant to be said that the only 
 ground on which the cases cited in connection with this paragraph of 
 the text might have been, or even were, placed is that to which, in 
 each case, attention is directed here; the present purpose is simply 
 to point out the readiness of the equity courts to make the inade- 
 quacy of the legal remedy, in whatever form it may appear, the cri- 
 terion of their jurisdiction. 
 
 36 Mayor etc. of Columbus v. Jaques, 30 Ga. 506. See, also, Le- 
 frois V. Monroe County, 24 App. Div. 421, 48 N. Y. Supp. 519. 
 
 37 Knox V. Mayor etc. of New York, 55 Barb. 404. 
 
 38 See Wilson v. Featherstone, 120 N. C. 449, 27 S. E. 121; Walker 
 V. Walker, 51 Ga. 22; Porter v. Armstrong, 132 N. C. 66, 43 S. E. 
 542; Keyburn v. Sawyer, 135 N. C. 328, 102 Am. St. Eep. 555, 47 S. 
 E. 761. 
 
 39 Meyer v. Phillips, 97 N. Y. 480, 49 Am. Eep. 538. The criticism 
 of this reason made in the chapter on trespass — viz., that an action 
 at law or an interference with the defendant's wrongful act once 
 in every prescriptive period, will prevent any right from arising by 
 prescription — applies here also: See Hart v. Hildebrandt, 30 Ind. 
 App. 415, €6 N. E. 173.
 
 §§ 518,519 EQUITABLE KEMEDIES. 873 
 
 § 518. What the Plaintiff Must Allege. — A plaintiff 
 who seeks an injunction against a nuisance must allege 
 his own right clearly and definitely in order that the 
 court's order for the protection of it may be certain 
 and without ambiguity; otherwise the decree will, of 
 course, be impossible of intelligent enforcement.*" He 
 must also, for obvious reasons, allege that the defendant 
 is doing or threatening to do the acts complained of.*^ 
 It is not necessary for the plaintiff to allege that his 
 injury will be irreparable or that the legal remedy is 
 otherwise inadequate, as that is a mere conclusion of 
 law ; he must, however, allege facts which will show the 
 injury to himself ^^ and the inadequacy of his legal rem- 
 edy.*^ And in the courts of the United States, at least, 
 this inadequacy is regarded as so important, that it 
 may be insisted on by the court sua sponte, though not 
 raised by the pleadings, nor suggested by counsel.** 
 
 § 519. Previous Trial at Law. — Since the rights that 
 are involved in cases of nuisance are purely legal, equity 
 taking jurisdiction in particular cases only to furnish 
 a more perfect remedy than the law affords, and follow- 
 ing the legal rules in the determination of all questions 
 save the adequacy of the legal remedy, it follows that 
 a problem of procedure may be presented to the equity 
 courts when an injunction is sought by a plaintiff in 
 whose favor the legal right, or the fact that a nuisance 
 
 40 Fisk V. Wilber, 7 Barb. 395; Peterson v. Beha, 161 Mo. 513, 62 
 S. W. 462. 
 
 41 Ploughs V. Boyer, 38 Ind. 115; Chastey v. Ackland, [1895] L*. 
 K. 2 Ch. D. 389. 
 
 42 Spooner v. McConnell, 1 McLean, 337, Fed. Cas. No. 13,245. 
 
 43 SpragTie v. Ehodes, 4 K. I. 301; Burrus v. City of Columbus, 105 
 Ga. 42, 31 S. E. 124. 
 
 44 Parker v. Winnipisiogee etc. Co., 67 U. S. (2 Black) 545, 17 L. 
 ed. 333. And see Burnham v. Kempton, 44 N. H. 78, 92.
 
 879 INJUNCTION AGAINST NUISANCE. §§ 520,521 
 
 exists, has never been determined. In such case, should 
 the court of equity pass on the questions of law or fact 
 raised? or should it refuse its extraordinary relief un- 
 til the plaintiff has procured a judgment of a court of 
 law in his favor? 
 
 § 520. Not Necessary to Granting of Temporary Injunc- 
 tions. — The scope of the inquiry may be narrowed by 
 first pointing out the classes of cases in which, though 
 there has been no trial at law, the above problem is not 
 raised. Chief among these is that class of cases in 
 which only a temporary injunction is sought. The pur- 
 pose of a temporary injunction generally is to keep mat- 
 ters in statu quo while some disputed question of law or 
 fact is being settled. Obviously, granting or refusing 
 it cannot turn upon the settlement of the question, 
 either in law or equity. It has its own rules, which 
 will be considered later,^^ but this is not one of them. 
 The supreme court of the United States in a compara- 
 tively early case on this subject said: "The true dis- 
 tinction in this class of cases is that, in prospect of 
 irremediable injury by what is apparently a nuisance, 
 a temporary or preliminary injunction may at once 
 
 issue But not a permanent or perpetual one till 
 
 the title, if disputed, is settled at law."^*^ And the law 
 is clearly in accord with so much of this distinction as 
 pertains to the granting of temporary injunctions.*^ 
 
 § 521. Nor in all Cases of Permanent Injunctions There 
 
 are, also, some cases in which a permanent injunction 
 
 45 See infra, § 535, 
 
 46 Irwin V. Dixion, 50 U. S. (9 How.) 10, 28, 29, 13 L. ed. 25, per 
 Woodbury, J. 
 
 47 Sutton V. Lord Montfort, 4 Sim. 565; Kennerty v. Etiwan Phos- 
 phate Co., 17 S. C. 411, 43 Am. Rep. 607; Cronin v. Bloemecke, 58 
 N. J. Eq. 313, 43 Atl. 605; Eochester v. Erickson, 46 Barb. 92; Burn- 
 ham V. Kempton, 44 N. H. 78.
 
 i 521 EQUITABLE KEMEDIES. 880 
 
 is sought, where the objection that the plaintiff has not 
 obtained a judgment at law should be disregarded 
 wholly by a court of equity. The first of these is the 
 case in which the defendant does not dispute either the 
 plaintiff's right or the fact that a nuisance exists; to 
 insist on a trial at law in such case would be to impose 
 needless hardship on both parties to the suit. "The 
 only object in establishing title at law, is to show that 
 the right is in the plaintiff. The suit at law is only a 
 means to accomplish a given end. When the end is al- 
 ready obtained, there could be no reason for doing an 
 idle thing. This, the law, as a rational system, never 
 requires to be done. If the title of the plaintiff be 
 conceded, then there can be no need of a trial at law 
 to establish that which is already admitted,"'^^ and the 
 reasoning is, of course, the same as to an admission that 
 a nuisance exists. Hence the courts are agreed that 
 no judgment or verdict at law is necessary in such 
 cases.^^ On the same reasoning it is held that a plain- 
 tiff's bill is not demurrable for failing to state a pre- 
 vious trial at law; by demurring the defendant admits 
 the plaintiff''s right and the fact of an existing nui- 
 sance.^^ In the next place, a trial at law will not be 
 
 48 Tuolumne Water Co. v. Chapman, 8 Cal. 392, 397. 
 
 49 Duncan v. Hayes and Greenwood, 22 N. J. Eq. 25; Eoss v. But- 
 ler, 19 N. J. Eq. (4 C. E. Green.) 294, 97 Am. Dec. 654; and the casea 
 cited in the next two notes, are a fortiori authorities on this point, 
 also. 
 
 50 Tuolumne Water Co. v. Chapman, 8 Cal. 392; Aldrich v. How- 
 ard, 7 E. I. 87, 80 Am. Dec. 636; Smitzer v. McCulloch, 76 Va. 777; 
 Texas etc. Ey. Co. v. Interstate Transp. Co., 155 XJ. S. 585, 15 Sup. 
 Ct. 228, 39 L. ed. 271; Soltau v. De Held, 2 Sim., N. S., 133; 
 Appeal of Bitting, 105 Pa. St. 517. But see Eastman v. Amoskeag 
 etc. Co., 47 N. H. 71; Weller v. Smeaton, 1 Cox, 102, 1 Brown Ch. 
 572. In Aldrich v. Howard, supra, the bill was to enjoin the defend- 
 ant from erecting a large livery-stable in close proximity to the com- 
 plainant's dwelling-house. Defendant demurred to the bill because, 
 among other reasons, it did not allege a previous trial at law. In
 
 881 INJUNCTION AGAINST NUISANCE. § 52a 
 
 required when, from the evidence at the hearing, the 
 controverted questions are clear in favor of one or the 
 other party to the suit. Here, too, a trial at law would 
 be superfluous.^^ It is on this ground that courts pro- 
 ceed when they hold that a "mere denial of the complain- 
 ant's rights by the defendant in his answer will not oust 
 the court of its jurisdiction by injunction" f^ or that a 
 party who has been for a long time in the undisputed 
 possession of the property or enjoyment of the right 
 with respect to which he complains, may procure an 
 injunction in spite of such denial.^^ And, finally, if 
 both parties consent'*^ or request that the equity court 
 
 passing on tbis point of the demurrer the court, per Ames, C. J., 
 daid: "Nor is it true, that a bill to enjoin such nuisance is demur- 
 rable, because it does not state that the rights of the parties, in sup- 
 port of the bill, have been settled by a judgment at law. It may bo 
 very proper that they should be, if uncertain, before the court af- 
 fords its specific relief; but the title of the plaintiff to the relief 
 he asks may be admitted by the answer, as it is by this demurrer, 
 and, then, why should it be further ascertained, to induce the action 
 of the court?' ' 
 
 51 Inchbald v. Barrington, L. R. 4 Ch. 388; Eeid v. Gifford, Hopk. 
 Ch, 416; Learned v. Hunt, 63 Miss. 373; Appeal of Pennsylvania 
 Lead. Co., 96 Pa, St. 116, 42 Am. Eep. 534; City of Newcastle v. 
 Eaney, 130 Pa. St. 546, 18 Atl. 1066, 6 L. E. A. 737; Deaconess etc. 
 Hospital V. Bontjes, 104 111. App. 484; Village of Dwight v. Hayes, 
 150 111. 273, 41 Am. St. Eep. 367, 37 N. E. 218, affirming 49 111. App. 
 530; Shields v. Arndt, 4 N. J. Eq. (3 Green's Ch.) 234; Wood v. 
 McGrath, 150 Ps. St. 451, 24 Atl. 682, 16 L. E. A. 715; Harelson v. 
 Kansas City etc. Co., 151 Mo. 483, 52 S. W. 368. 
 
 62 Carlisle v. Cooper, 21 N. J. Eq. (6 C. E. Green) 576, 580; Shields 
 V. Arndt, 4 N. J. Eq. (3 Green Ch.) 234. 
 
 53 Gardner v. Trustees etc. Newburgh, 2 Johns. Ch. 162; Finch v. 
 Ecsbridger, 2 Vern. 390; Falls Village etc. Co. v. Tibbetts, 31 Conn. 
 165; Burnham v. Kempton, 44 N. H. 78. 
 
 54 Mayor of Cardiff v. Cardiff etc. Co., 4 De Gex & J. 596; Ladd 
 V. Granite State Brick Co., 68 N. H. 185, 37 Atl. 1041. As to cases 
 in which the disputed question is one of law, and not of fact, see 
 Rigby v. Great Western Ry. Co., 2 Phill. Ch. 49, 51; Harmon v. Jones, 
 Craig & P. 299. 301, in which a distinction is taken that would have 
 
 Equitable Rernedi?s, Vol. I — 56
 
 § 522 EQUITABLE REMEDIES. £S2 
 
 try the merits of the disputed question, it will do so f^ 
 and it has been held that an objection to this course 
 of proceeding cannot be taken if it has not been raised 
 by the answer. ■^''^ 
 
 § 522. Cases in Which It is Important. — The class of 
 cases not yet discussed is that in which on application 
 for a permanent injunction, the plaintiff's right, or the 
 fact that a nuisance exists, is doubtful on the evidence 
 before the court, and the parties do not consent to have 
 the controversy settled by the court of equity. In this 
 situation the general doctrine is that "either party is 
 entitled to insist that the questions on which the legal 
 rights depend should be tried at law."^'' Satisfactory 
 grounds to support this rule as a matter of reason are 
 not to be found in the cases. Doubtless the explana- 
 tion of it is largely the fact that in early days the courts 
 of equity were reluctant to undertake the decision of 
 purely legal rights, or questions of fact which ordi- 
 narily were tried by a jury.^^ It was "a rule of expedi- 
 
 great force in a jurisdiction in which the courts of law and equity 
 are distinct. 
 
 55 Walter v. Selfe, 4 De Gex & S. 315. 
 
 56 Lambert v. Huber, 22 Misc. Rep. 462, 50 N. Y. Supp. 793. 
 67 Mayor of Cardiff v. Cardiff etc. Co., 4 De Gex & J. 596. 
 
 58 Potts V. Levy, 2 Drew. 272, 277; Harman v. Jones, Craig & P. 
 299, 301; Walts v. Foster, 12 Or. 247, 7 Pac. 24; Eoath v. Driscoll, 
 20 Conn. 533, 538, 52 Am. Dec. 352. In Eoath v. Driscoll, supra, Ells- 
 worth, J., said: "The court doubtless possesses the necessary power, 
 but it is not to be exercised as a matter of course, even when the 
 plaintiff suffers some injury to his real estate. Whenever the rijjht 
 iS doubtful, or needs the investigation of a jury, a court of equity 
 is always reluctant to interpose its summary authority, for it is 
 rather the duty of the court to protect acknowledged rights than to 
 establish new and doubtful ones." In Harman v. Jones, supra, an 
 injunction had been granted forbidding the defendant from tak- 
 ing land which plaintiff claimed. No legal proceedings were di- 
 rf:cted. On appeal Lord Cottenham said: "It is said the omission 
 of such a direction was owing to its not having been asked in the
 
 883 INJUNCTION AGAINST NUISANCE. § 522 
 
 ency and policy, rather than an essential condition and 
 basis of the equitable jurisdiction."^*^ As such, the 
 grounds on which it arose have largely, if not quite, 
 disappeared with the decay of all hostility of the courts 
 of law against the equity courts and the general merg- 
 ing of both law and equity functions in the same courts. 
 The rule, however, still persists in most jurisdictions 
 in which it has not been abrogated by statute.^*^ It has 
 
 court below; but it is the duty of the court to give such direction, 
 whether it be asked for or not. The proper office of the court, upon 
 an application of this kind, is not to ascertain the existence of a 
 legal right, but solely to protect the property, until that right can 
 be determined by the jurisdiction to which it properly belongs, it 
 is the duty of this court to confine itself within the limits of its 
 own Jurisdiction; and, therefore, it is a fundamental error in an order 
 of this kind to assume finally to dispose of legal rights, and not to 
 confine itself to protecting the property pending the adjudication of 
 those rights by a court of law." Thia extract shows clearly the 
 ground on which the rule is based. 
 
 59 1 Pom. Eq. Jur., § 252. 
 
 60 Earl of Kipon v. Hobart, 3 Mylne & K. 169; Mayor of Car- 
 diff V, Cardiff etc. Co., 4 De Gex & J. 596; Elmhurst v. Spencer, 2 
 Macn. & G. 45; Van Bergen v. Van Bergen, 3 Johns. Ch. 282, 8 Am. 
 Dec. 511; Irwin v. Dixion, 50 U. S. (9 How.) 10, 13 L. ed. 25; Kings- 
 bury V. Flowers, 65 Ala. 479, 39 Am. Rep. 14; Tracy v. Le Blanc, 
 89 Me. 304, 36 Atl. 399; Green v. Lake, 54 Miss. 540, 28 Am. Rep. 
 378; Burnham v. Kempton, 44 N. H. 78; Hinchman v. Paterson, 17 
 N. J. Eq. 75, 86 Am. Dec. 252; Walts v. Foster, 12 Or. 247, 7 Pac. 
 24; Rhea v. Forsyth, 37 Pa. St. '503, 78 Am. Dec. 441; Wood v. Mc- 
 Grath, 150 Pa. St. 451, 24 Atl. 682, 16 L. R. A. 715; Roath v. Driscoll, 
 20 Conn. 538, 52 Am. Dec. 352; Kenuerty v. Etiman Phosphate Co., 
 17 S. C. 411, 43 Am. Rep. 607; Sterling v. Littlefield, 97 Me. 479, 54 
 Atl. 1108; Sullivan v. Browning (N. J.), 58 Atl. 302; Harrelson v. 
 Kansas City etc. Co., 151 Mo. 482, 52 S. W. 368. See, however, Olm- 
 sted V. Loomis, 9 N. Y. 423, and Minke v. llopeman, 87 111. 450, 29 Am. 
 Rep. 63, in which the court of equity decided the question of fact for 
 itself, without putting the case on any of the usual grounds for 
 taking it out of the rule. In England the rule is abolished by stat- 
 ute, Rolfs Act, 25 & 26 Vict., c. 42 [1862], for a discussion of which 
 see Eaden v. Firth, 1 Hen. & M. 573. The Reformed Procedure has 
 accomplished the same result in New York and California: Corning 
 & Winslow V. Troy etc. Factory, 40 N. Y. 191, 39 Barb. 311, 34 Barb.
 
 S 522 EQUITABLE REMEDIES. 884 
 
 never gone so far, however, as to require the plaintiff's 
 bill to be dismissed because the legal questions had not 
 been determined ; the court may retain the bill and pro- 
 cure their ascertainment by directing an issue, or an 
 action, or a case stated, at law; basing its final decree 
 upon the results thus reached.®^ In leaving the sub- 
 ject it should be noted that when the bill is to enjoin a 
 threatened, as distinguished from an existing, nuisance, 
 from the nature of the case the requirement of a pre- 
 vious trial at law cannot be applied. "No such ques- 
 tion in this case can be tried at law, no nuisance ex- 
 ists — the object of the bill is to enjoin the defendant 
 from creating one."®^ From the foregoing discussion 
 it would appear that the following is an accurate sum- 
 mary of the general rules of equity with respect to the 
 requirement of a previous establishment of the plain- 
 tiff's right at law. The requirement does not apply at 
 all to applications for temporary injunctions; nor to 
 bills for permanent injunctions on account of irre- 
 parable injury, when the defendant admits the plain- 
 tiff's right, or when the right is clear in favor of one 
 of the i^arties, though disputed, or when both parties 
 consent to a trial of the merits by the equity court ; 
 nor to bills for permanent injunctions against threat- 
 ened, as distinguished from existing, nuisances; it docs 
 apply to all other bills for permanent injunctions, but 
 
 485, 6 How. Pr. 89; Pollitt v. Long 58 Barb. 20; Lux v. Haggin, 69 
 CaL 255, 284, 285, 10 Pac. 674. And in Michigan also this has been 
 done by statute: Comp. Laws 1871, § 6377; Robinson v. Baugh, 31 
 Mich. 290, 292. 
 
 61 Attorney-General v. Cleaver, 18 Ves. 211, 219; Rigby v. Great 
 Western Ry. Co., 2 Phill. Ch. 49, 51; Davidson v. Isham, 9 N. J. Eq. 
 186; Clark v. Lawrence, 59 N. C. 83, 78 Am. Dec. 241. 
 
 62 Bell V. Blount, 11 N. C. 384, 15 Am. Dec. 526; Porter v. 
 Whitbam, 17 Me. 294; Varney v. Pope, 60 Me. 192; Tracy v. Lo 
 Blane, 89 Me. 304, 36 Atl. 399. See, also, Sterling v. Little, 97 Me. 
 497, 54 Atl. 1108.
 
 885 INJUNCTION AGAINST NUISANCE. § 523 
 
 there is a tendency to do away with the requirement by 
 statute or judicial innovation. 
 
 § 523. Threatened Nuisances; Imminent Danger In one 
 
 sense all injunctions against nuisances are injunctions 
 against threatened nuisances. The only purpose of 
 giving equitable relief at all is the prevention of future 
 harm; but this harm, being future, cannot be a matter 
 of absolute certainty and therefore is only threatened. 
 If, however, at the time the bill is filed a nuisance is 
 actually being committed, there will, in general, be no 
 question that the threatened danger is sufficiently made 
 out to justify an injunction, if the case, in its other as- 
 pects, is sufficient. But when the nuisance has not yet 
 come into existence and the plaintiff, therefore, must 
 make out his case of apprehended danger by other 
 means than by pointing to an existing nuisance, a ques- 
 tion may be raised concerning the rules by which the 
 court is to be guided. What is believed to be a proper 
 statement of these rules was thus formulated in a lead- 
 ing English case: "There must, if no actual damage is 
 proved, be proof of imminent danger, and there must 
 also be proof that the apprehended statement will, if 
 it comes, be very substantial. I should almost say, it 
 must be proved that it will be irreparable, because, if 
 the danger is not proved to be so imminent that no one 
 can doubt that, if the remedy is delayed, the damage 
 will be suffered, I think it must be shown that, if the 
 damage does occur at any time, it will come in such a 
 way and under such circumstances that it will be im- 
 possible for the plaintiff to protect himself against it 
 if relief is denied to him in a quia timet action."*^^ In 
 
 63 Fletcher v. Bealey, L. E. 28 Ch. D. 688, per Pearson, J. The 
 facts of this case were that: The defendants proposed to deposir 
 refuse matter from their alkali mills on the bank of a stream about
 
 5 523 EQUITABLE REMEDIES. 886 
 
 a word, the threatened danger must be imminent, and 
 of a character to do irreparable injury. In a bill to 
 enjoin the erection of an engine to pump water into a 
 river which the plaintiffs were cleansing and improv- 
 
 a mile and a half above the plaintiff's paper-mills, in which the 
 water from the river was largely used. It was admitted that after 
 a time there would flow from this "vat waste" a greenish liquid 
 of such noxious character, that any considerable amount of it 
 in the water of the river would be very destructive to the plaintiff's 
 manufacture, and the court thought this liquid, in the natural course 
 of events, might begin to flow into the river in the course of ten 
 years. The plaintiff also contended that the bank where the refuse 
 matter was to be deposited was in danger of slipping into the river. 
 The defendants insisted that they were going to take precautions 
 to provide against both dangers. The court refused the injunction. 
 On the first ground the court said: "I have no doubt that at the end 
 of ten years the water would be sufficiently polluted to do a great 
 
 amount of injury to the plaintiff I think that in ten years' 
 
 time it is highly probable that science (which is now at work on the 
 subject) may have discovered some means for rendering this green 
 liquid innocuous. But, even if no such discovery should be made 
 in that time, I cannot help seeing that there are contrivances, such 
 as tanks and pumps, and other things of that kind, by which the 
 liquid may, as the defendants say, be kept out of the river altogether. 
 Therefore, upon that ground alone, I do not think the action can be 
 
 supported I think the danger is not imminent, because it must 
 
 be some years before any such quantity of the liquid will be found 
 issuing from the heap as would pollute the Irwell to the detriment 
 of the plaintiff." On the claim that the bank was in danger of 
 slipping the court said: "I think that, if any slip does take place, 
 there will be some premonitory symptoms which will warn the plain- 
 tiff and the defendants, and give the defendants time to do what- 
 ever may be necessary to prevent the heap from slipping into thy 
 river, and at the same time enable the plaintiff, if he should think it 
 right to do so, to bring an action against the defendants on 
 the ground of positive and imminent danger at that time." 
 On similar reasoning an injunction against a sewer was refused 
 when the allegation was that it would become noxious in three years: 
 Morgan v. Binghamton, 102 N. Y. 500, 7 N. E. 424; so, an injunction 
 was denied against the erection of a pest-house by city authorities 
 when the latter had taken no official action looking to its erection, 
 the danger in such case being too remote to be considered immi- 
 nent: City of Kansas City v. Hobbs, 62 Kan, 866, 62 Pac. 324.
 
 887 INJUNCTION AGAINST NUISANCE. § 523 
 
 ing, the court discussed the nature of an imminent dan- 
 ger as follows: "If, indeed, this be a work which not 
 only gives the power of doing mischief, but cannot be 
 used or can hardly, in the common course of things, be 
 used without working mischief, if, in short, it be a 
 thing which can hardly be used without being abused, 
 the case comes to be very different. For, in matters 
 of this description, the law cannot make over-nice dis- 
 tinctions, and refuse the relief merely because there 
 is a bare possibility that the evil may be avoided. Pro- 
 ceeding upon practical views of human affairs, the law 
 will guard against risks which are so imminent that no 
 prudent person would incur them, although they do not 
 amount to absolute certainty of damage. Nay, it will 
 go further, according to the same practical and rational 
 view, and, balancing the magnitude of the evil against 
 the chances of its occurrence, it will even provide 
 against a somewhat less imminent probability in cases 
 where the mischief, should it be done, would be vast 
 and overwhelming. Accordingly, if it appeared that 
 the works in question could hardly be used without 
 damage to the inferior districts, I might hold that erect- 
 ing them was, in itself, a beginning of injury, though 
 there might be a possibility of otherwise using them; 
 and if the damage, should it happen at all, were the 
 destruction and the subjecting of the lower districts to 
 a deluge, I might scrutinize less narrowly the probabil- 
 ity of the engines being injuriously worked,"^'* This 
 
 64 Earl of Eipon v. Hobart, 3 Mylne & K. 169, 176. The injunction 
 was refused, the court saying as its conclusion on the score of im- 
 minence of the danger: "But upon carefully examining the evidence, 
 and indeed it might be enough to say, upon attentively considering 
 the nature of the case, the kind of works and of working in question, 
 and the sort of mischief apprehended, there is no reason for holding 
 that the danger is either certain or very imminent, or that mischief 
 of a very overwhelming nature is likely to be suddenly done; or, in-
 
 S 524 EQUITABLE REMEDIES. 888 
 
 passage states and illustrates clearly the principles 
 which guide the courts in this matter. On the one hand, 
 a mere possibility of a future nuisance will not support 
 an injunction; it must be probable. On the other hand, 
 the plaintiff — who, of course, has the burden of 
 proof^^ — does not need to establish this probability by 
 proof amounting to virtual certainty that the nuisance 
 will occur, nor even proof which establishes it beyond a 
 reasonable doubt ;^^ it is sufficient if he show that the 
 risk of its happening is greater than a reasonable man 
 would incur. And the balance between these two rules 
 will be affected by the seriousness of the nuisance 
 feared, the strength required for the plaintiff's proof 
 diminishing somewhat as the greatness of the appre- 
 hended damage increases. 
 
 § 524. Illustrations. — In accordance with these rules it is 
 held that a thing which may or may not be a nuisance, 
 according to the way it is managed or controlled when 
 in use, will not be enjoined. The plaintiff, by showing 
 only the intended construction or use of the thing com- 
 plained of, does not meet the burden of proof that is on 
 him, "the presumption being that a person entering into 
 a legitimate business will conduct it in a proper way 
 so that it will not constitute a nuisance."*^' Hence 
 injunctions have been refused against the erection of a 
 
 deed, that any serious injury can be done, without time being afforded 
 for coming to the court with a case free from the present defects." 
 See, also, Mohawk Bridge Co. v. Utica etc. Co., 6 Paige, 554, 563. 
 
 65 Columbia Ave. etc. Co. v. Prison Commission of Ga., 92 Fed. 
 801; Maysville etc. Co. v. Beyersdorfer, 19 Ky. Law Rep. 1212, 43 
 S. W. 254; Lambert v. Alcorn, 144 111. 313, 331, 33 N. E. 53, 21 L. R. 
 A. 611. 
 
 66 Owen V. Phillips, 73 Ind. 284. 
 
 67 Pope V. Bridprewater, 52 W. Va. 252, 43 S. E. 87. Compare West 
 V. Ponca City Milling Co. (Okla.), 79 Pac. 100.
 
 889 INJUNCTION AGAINST NUISANCE. S 524 
 
 stable,^* or a planing-mill,^^ or a cotton-gin/*' or a 
 jail,'^^ or a coal-chute;''^ the building of a dam/^ or an 
 embankment;'^* the opening of a gas-well ;^^ the estab- 
 lishment of a private burial ground;''^ the operation of 
 a business, as of a slaughter-house,'^'' or a dairy ;"^ the 
 discharge of sewage on the plaintiff's land;"^ or the 
 sale of water for purposes of hydraulic mining when 
 the defendant does not know the mining is to be done 
 in a wrongful manner;®^ or the laying of railroad 
 
 68 Kirkman v. Handy, 30 Tenn. (11 Hump.) 406, 54 Am. Dec, 45 
 (livery-stable) ; Shiras v. Ollinger, 50 Iowa, 571, 32 Am. Kep. 138 (liv- 
 ery-stable); St. James's Church v. Arrington, 36 Ala. 546, 76 Am. 
 Dec. 332 (private stable) ; Eounsaville v. Kohlheim, 68 Ga. 668, 45 
 Am. Eep. 505 (private stable) ; Keiser v. Lovett, 85 Ind. 240, 44 Am. 
 Eep. 10 (private stable). In Kirkman v. Handy, the court said: 
 "A livery-stable in a town is not necessarily a nuisance in itself," 
 and therefore a court of equity has no jurisdiction to restrain by 
 injunction, either the completion, because intended for that purpose, 
 or its appropriation to the purpose intended. 
 
 69 Dorsey v. Allen, 85 N. C, 358, 39 Am. Eep. 704. 
 
 70 Eouse V. Martin, 75 Ala. 510, 51 Am. Eep. 463. 
 
 71 Burwell v. Vance County Commrs., 93 N. C. 73, 53 Am. Eep. 
 434. 
 
 72 Dalton V. Cleveland etc. Ey. Co., 144 Ind. 121, 43 N. E. 130. 
 
 73 Hoke V. Perdue, 62 Cal. 545; Blair v. Boswell, 37 Or. 168, 61 
 Pac. 341. 
 
 74 Lake Erie etc. Co. v. City of Fremont, 92 Fed. 721. 
 
 75 Pope V. Bridgewater Gas Co., 52 W. Va. 252, 43 S. E. 87; Wind- 
 fall Mfg. Co. V. Patterson, 148 Ind, 414, 62 Am. St. Eep, 532, 47 N. 
 E, 2, 37 L. E. A. 381. 
 
 76 Kingsbury v. Flowers, 65 Ala. 479, 39 Am. Eep. 14 (private 
 burial ground); Ellison v. Commissioners of Washington, 58 N. C. 
 57, 75 Am. Dec. 430 (public cemetery); Elliott v. Ferguson (Tex. 
 Civ. App.), 83 S, W, 56 (same), 
 
 77 Beckhan v. Brown, ly Ky. Law Eep. 519, 40 S. W. 684. The 
 court in this case said: "A business of itself legitimate should not b« 
 enjoined upon the sole ground that it may contingently or eventually 
 become a nuisance." 
 
 78 McDonough v. Eobbens, 1 Mo. App. Eep. 78, 60 Mo. App. 156. 
 7» Vicker v. City of Durham, 132 N. C, 880, 44 S, E. 685. 
 
 80 County of Yuba v. Cloke, 79 Cal, 239, 21 Pac. 740.
 
 S 524 EQUITABLE REMEDIES. 890 
 
 tracks in front of the plaintiff's land;^^ in every case 
 the thing complained of may be done in a manner that 
 will cause no harm to the plaintiff, and the mere fact 
 that it is to be done is no proof that it will be done 
 wrongfully. But if the plaintiff can show that the 
 thing complained of will probably be a nuisance to him, 
 he is entitled to an injunction appropriately framed to 
 protect his right that is threatened. Thus, if a struc- 
 ture is being erected, and the plaintiff can show that 
 it is to be used in such a way as will probably be a 
 nuisance to him, he may have this use enjoined, although 
 he may not be able to enjoin the erection of the struc- 
 ture;*^ while if the structure itself, without regard to 
 any use of it, will cause a nuisance, the injunction will 
 forbid its erection at all.^^ And if this distinction is 
 
 81 Drake v. Hudson Eiver etc. Co.. 7 Barb. 508. 
 
 82 Cleveland v. Citizens' etc. Co., 20 N. J. Eq. (5 C. E. Green) 201; 
 Attorney-General v. Steward, 20 N. J. Eq. (5 C. E. Green) 415; Ross 
 V. Butler, 19 N. J. Eq. (4 C. E. Green) 294, 97 Am. Dec. 654; Lake 
 Erie etc. Co. v. Young, 135 Ind. 426, 41 Am. St. Rep, 430, 35 N. E. 
 177. In Cleveland v. Citizens' etc. Co., supra, the bill was brought to 
 enjoin the erection of a gas plant near the plaintiffs' homes. On the 
 facts the court thought the manufacturing of gas might, or might 
 not, be a nuisance, according to the way in which it was conducted, 
 except as to a process of purifying by lime, which the court was sat- 
 isfied would be a nuisance to the plaintiffs, if used. The injunction 
 was therefore refused as to the building and the manufacturing of 
 gas as a whole, but granted against the particular process of purifying 
 by lime. In Attorney-General v. Steward, supra, the bill was for an 
 injunction against erecting a slaughter-house. Here, too, the court 
 was of the opinion that the business might be so carried on as not 
 to be a nuisance. The defendants admitted, however, that they 
 might discharge the blood from one hundred slaughtered hogs daily 
 into a creek which flowed past plaintiffs' land below, contending that 
 this would not pollute the stream. The court thought it would pol- 
 lute the stream; hence the injunction was refused as to the erection 
 of the building, and the slaughtering, but was granted to restrain 
 the defendants from permitting the blood to flow into the creek. 
 
 83 Rochester v. Erickson, 46 Barb. 92 (projecting wall into a nav- 
 igable river); Bell v. Blount, 11 N. C. 384, 15 Am. Dec. 526 (mill-
 
 891 INJUNCTIOxX AGAINST NUISANCE. § 524 
 
 sometimes disregarded and the structure as well as the 
 wrongful use of it enjoined, it is doubtless because of 
 the fact that the erection will be useless for any other 
 purpose than the wrongful one; hence a strict limita- 
 tion of the scope of the injunction is not very closely 
 observed.^* Thus the courts have enjoined the erection 
 of a privy near plaintiff's house ;^^ of a toll-gate ;^^ and 
 of a powder magazine.^^ So, too, threatened acts 
 which if done would cause a nuisance, as the diversion 
 of water/^ or discharge of sewage on the plaintiff's 
 Icind,*'^ or the use of an artificial pond as a place for 
 dumping mining debris,^*^ have been enjoined. In a 
 
 dam, when the pond collected by it would very probably render the 
 eomuainity unhealthy). 
 
 8-1 On this point the court in Cleveland v. Citizens' etc. Co., supra, 
 said: "The application is to restrain putting up the building, and 
 also manufacturing gas. As to the building itself, it can be of no 
 injury to anyone if no gas is ever made in it. But it is usual and 
 proper, where a building or works are being erected that can only 
 be used for a purpose that is unlawful, to restrain the erection. The 
 works, if erected, might tempt the owner to use them, and it seems 
 like trifling to permit anyone to go on with a building which he can 
 never be permitted to use." This reasoning could not apply, of 
 course, in any case in which the defendant wished to go on with the 
 building for some other purpose, if rightful, than the prohibited one, 
 nor would it seem to make any difference that this other purpose was 
 formed after the defendant learned he would be enjoined from car- 
 rying out his original plan. 
 
 85 Miley v. O'Hearn, 13 Ky. Law Rep. 834, 18 S. W. 329 (erection 
 of a privy ten feet from the plaintiff's well and thirteen feet from 
 her dining and bed rooms. But, in the same jurisdiction, the erec- 
 tion of a privy one hundred and fifty feet from the plaintiff's well 
 and dwelling was not enjoined: Davis v. Atkins, 18 Ky. Law Eep. 
 73, 35 S. W. 271). 
 
 86 President etc. Road Co. v. Anderson, 22 Ky. Law Eep. 1626, 61 
 B. W. 13. 
 
 87 Wier's Appeal, 74 Pa. St. 230. 
 
 88 Kimberly v. Hewitt, 75 Wis. 371, 44 N. W. 303. 
 
 80 New York Cent. etc. Co. v. City of Rochester, 127 N. Y. 591, 28 
 N. E. 416. 
 
 90 United States v. Lawrence, 53 Fed. 632. Compare with United
 
 i 525 EQUITABLE EEMEDIES. 892 
 
 majority of the cases of bills to enjoin threatened nui- 
 sances, however, the injunction has been refused. The 
 explanation of this is that most nuisances consist in 
 doing in a wrongful manner something which is not 
 wrongful in itself; hence till it is actually being done 
 in a wrongful way, the plaintiff has so heavy a task in 
 proving the probability of its being so done, that, in 
 general, he cannot meet it. The courts will not grant 
 tl^e injunction simply because it will do no harm to the 
 dei'endant;^^ the plaintiff must show clearly that he 
 stands in need of it.®* 
 
 § 52<'). Must Threatened Injury be Irreparable? — On the 
 second branch of the rule quoted above concerning in- 
 junctions against threatened nuisances, viz., that the 
 injury must be irreparable, little needs to be said. 
 The significance of it is, of course, that it excludes 
 wholly from the class of cases in which an injunc- 
 tion may be granted against a purely threatened, 
 as distinguished from an existing, nuisance, all those 
 in which the basis of the intervention of equity is solely 
 to prevent a multiplicity of suits. In favor of the rule 
 thus limited, it can be said that there is little, if any, 
 reason for granting relief quia timet with the lack of 
 certainty that any wrong will ever be done which is in- 
 states V. North Bloomfield etfe, Co., 53 Fed. 625. See further City of 
 St. Louis V. Knopp etc. Co., lO-S U. S. €58, 26 L. ed. 883, and Cromp- 
 ton V. Lea, L. E. 19 Eq. 115, 121^, which show that lack of imminence 
 of the threatened nuisance cannot, in general, be taken by demur- 
 rer. 
 
 81 Otaheite Gold etc. Co, v. Dean, 102 Fed. 929. 
 
 92 Adams v. Michael, 38 Md. 123, 17 Am. Eep. 516; Branch Turn- 
 pike Co. V. Yuba, 13 Cal. 190 j Sayre v. Mayor etc. Newark, 58 N. J. 
 Eq. (13 Dick.) 136, 148, 42 Atl. 1068. In Gallagher v. Flury, 99 Md. 
 181, 57 Atl. 672, it is said that threatened nuisances only of things 
 nuisances per se will be enjoined, but this ig clearly an erroneous 
 view, both in reason and by the authorities.
 
 893 INJUNCTION AGAINST NUISANCE. S 526 
 
 herent in such cases, except when there is strong ground 
 for believing that, unless quia timet relief is given, an 
 adequate remedy will be impossible should the antici- 
 pated wrong occur. Negatively, the fact, that almost 
 all the cases of bills for injunction against threatened 
 nuisances conform to the restricted rule, supports this 
 reasoning. There is, however, some American authority 
 the other way.®* 
 
 § 526. Damage Necessary to Justify an Injunction. — The 
 question what amount or character of damage is neces- 
 sary to sustain an injunction will require only brief 
 treatment, as, in the main, the question, when it arises, 
 is settled by simply applying the rule which is applied 
 on the same point in an action at law. If the injury 
 is irreparable, or such that the damages given by a 
 jury would be conjectural, it is clear, of course, that 
 the question of the extent of damage will not need to 
 be gone into. The class of cases, then, in which it will 
 arise is chiefly, if not exclusively, that in which the 
 reason for coming into equity is to put an end to a per- 
 manent or continuing nuisance in order to avoid mul- 
 tiplicity of suits. In this situation the courts generally 
 require no more, but just the same, damage that will 
 sustain an action at law. "The result of a careful re- 
 view of the evidence upon my mind," said the court 
 in a leading American case,^* "is to lead me to the con- 
 
 93 Whitfield V. Eogers, 26 Miss. (4 Cush.) 84, 59 Am. Dec, 244. 
 See, also, Lake Erie etc, Co. v. Young, 135 Ind. 426, 41 Am. St, Eep. 
 i30, 35 N. E. 177. 
 
 94 Per Pitney, V. C, in Hennessy v. Cannony, 50 N. J. Eq. 616, 
 25 Atl. 374. To the same effect are Salvin v. North Brancepeth Coal 
 Co., L. R. 9 Ch. App. 705, in which the court applied the rule given 
 to the jury in St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642, 
 which was an action at law for damages; Bostock v. North Stafford- 
 shire By., 5 De Gex & S. 584; Broder v. Saillard, L. E. 2 Ch, D. 692; 
 Proprietors of Me. "Wharf v. Proprietors etc. Wharf, 85 Me. 175, 27
 
 I 526 EQUITABLE EEMEDIES. 894 
 
 elusion that the degree of injury is such as to entitle 
 the complainant to damages in an action at law, with 
 the result that he is entitled to an injunction in this 
 court." This is the only logical result of the rule that 
 to prevent multiplicity of suits is a head of equity jur- 
 isdiction ; to hold otherwise would be to say that equity 
 will prevent multiplicity of suits only when the dam- 
 ages are according to some standard of the equity 
 courts, and this would be to do away with just so much 
 of the salutary result of the rule as was affected by ap- 
 plying this different standard. It follows equally 
 that in the class of nuisances in which an action at law 
 may be maintained without showing any damages, be- 
 cause a legal right is invaded, as the interference with 
 water rights, or the right to lateral support, or over- 
 flowing the plaintiff's land, and the like, that equity 
 should also enjoin on the same showing; and such is the 
 rule.^^ 
 
 Atl. 93; Pach v. Geoffrey, 67 Hun, 401, 22 N. Y. Supp. 275, affirmed 
 in 143 N. Y. 661, 39 N. E. 21; Crump v. Lambert, L. E. 3 Eq. 409. 
 Conversely, an injunction was refused in Farrell v. New York Steam 
 Co., 23 Misc. Rep. 726, 53 N. Y. Supp. 55, because the plaintiff did 
 not show that the acts would amount to sufficient to maintain an 
 action at law. The bill was to enjoin the operation of a steam plant. 
 The injunction was refused, the court saying: "The evidence does 
 not show that the acts of the defendant have materially lessened 
 the plaintiff's enjoyment of his property. By this I mean those acts 
 of the defendant of which the plaintiff has the legal right to com- 
 plain." But see Smith v. Ingersoll-Sergeant etc. Co., 12 Misc. Rep. 
 5, 33 N. Y. Supp. 70, reversing 7 Misc. Rep. 374, 27 N. Y. Supp. 907, 
 in which the language of the court is not consistent with the above 
 cases. 
 
 95 Union etc. Co. v. Dangberg, 81 Fed. 73 (diversion of water); 
 Potter V. Howe, 141 Mass. 357, 6 N. E. 233 (flowing land); Learned 
 V. Castle, 78 Cal. 454, 18 Pac. 872, 21 Pac, 11 (flowing land; cf. Jacob 
 V. Day, 111 Cal. 571, 44 Pac. 243) ; Trowbridge v. True, 52 Conn. 190, 
 52 Am. Rep. 579 (interference with lateral support enjoined, though 
 damages trifling). Contra, McMaugh v. Burke, 12 E. I. 499. For 
 further cases on injunction to prevent interference with water rights, 
 see post, chapter XXVL
 
 895 INJUNCTION AGAINST NUISANCE. § 5:i7 
 
 § 527. Criminal and Statutory Nuisances — The jurisdic- 
 tion of equity over nuisance is essentially a civil juris- 
 diction. "The plaintiff insisted that it was illegal for 
 Roman Catholics to ring and toll bells in a steeple an- 
 nexed to their place of worship/' said the court in 
 Soltau V. De Held.^® "It appears to me that whether 
 that be so or not, is perfectly immaterial in this case; 
 because, if it be illegal, I am not to grant an injunction 
 to restrain an illegal act merely because it is illegal. 
 I could not grant an injunction to restrain a man from 
 smuggling, which is an illegal act. If it be illegal, the 
 illegality of it is no ground for my interfering." In ac- 
 cordance with this language the law is settled that an 
 act will not be enjoined as a nuisance merely because 
 it is criminal, even though prohibited by statutes, 
 whether at the suit of a private person^^ or of the pub- 
 
 86 Per Cranworth, V. C, 2 Sim., N. S., 133. 
 
 87 Sparhawk v. Union etc. By. Co., 54 Pa. St. 401; Finegan v. Al- 
 len, 46 111. App. 553; Sheldon v. Weeks, 51 111. App. 314; Eice v. 
 Jefferson, 50 Mo. App. 464; Smith v. Loekwood, 13 Barb. 209; Tiede 
 V. Schneidt, 99 Wis. 201, 74 N. W. 798; City of Utica v. Utica Tel. 
 Co., 24 App. Div. 361, 48 N. Y. Supp. 916. See, however, First Nat. 
 Bank of Mt. Vernon v. Sarlls, 129 Ind. 201, 28 Am. St. Kep. 185, 28 
 N. E. 434, 13 L. R. A. 481 (removal of wooden building within fire 
 limits, against city ordinance) ; Kaufman v. Stein, 138 Ind. 49, 46 
 Am. St. Eep. 368, 37 N. E, 333 (same as preceding case) ; Schulze v. 
 Corporation of Galasheils, [1895] App. Cas. 656; Dubos v. Dreyfous, 
 52 La. Ann. 1117, 27 South. 663 (failure to ventilate stables, as re- 
 quired by ordinance); State v. Crawford, 28 Kan. 726, 42 Am. Rep. 
 182. In this last case the court uttered the following dictum: "Ws 
 would think that every place where a public statute is openly, pub- 
 licly, repeatedly, continuously, persistently and intentionally violated, 
 is a public nuisance." In the two Indiana cases, also, the court 
 seemed to think that the effect of the statute was to make the prohib- 
 ited act a nuisance. In Griswold v. Brega, 160 111. 490, 52 Am. St. 
 Eep. 350, 43 N. E. 864, af&rming 57 111. App. 554, the required stat- 
 utory consent of property owners to allow a wooden building to be 
 brought within the fire limits was procured by fraud on some of them, 
 and on this account the court enjoined the defendant from bringing 
 in the building.
 
 § 527 EQUITABLE REMEDIES. 896 
 
 lic.^^ The converse of this is not true ; indeed it is well 
 established that it is no defense to a bill to enjoin that 
 which is a nuisance to show that it is also a crime ;^® if 
 the law were otherwise, public nuisances which at com- 
 mon law are public offenses, could never be enjoined. ^"^^ 
 A more difficult question is raised when the legislature 
 makes an act a nuisance which was not such at common 
 law, and provides that it shall be subject to injunction 
 in equity. Is such legislation consistent with the pro- 
 vision of the federal, and most of the state, constitu- 
 tions that the right of trial by jury shall be preserved 
 inviolate? It is held generally, if not universally, that 
 there is nothing unconstitutional in such statutes. The 
 jury trial guarded by the constitutional provision is 
 that which was required by the principles of the com- 
 mon law. Jurisdiction to enjoin future acts in the na- 
 ture of nuisances has always been a matter for the 
 equity courts, and as such has never required a jury 
 trial; hence an enlargement of this jurisdiction does not 
 
 98 Village of St. John v, McFarlan, 33 Mich. 72, 20 Am. Eep. 671 
 (erection of wooden building contrary to a village ordinance); Inc. 
 Town of Rochester v. Walters, 27 Ind, App. 194, 60 N. E. 1101 (same 
 as preceding case); Village of New Rochelle v. Lang, 75 Hun, 608, 
 27 N. Y. Supp. 600 (same as preceding case) ; Pres. etc. Village of 
 Waupun V. Moore, 34 Wis. 450, 17 Am. Rep. 446 (same as preceding 
 case); Manor Casino v. State (Tex. Civ. App.), 34 S. W. 769 (sale 
 of intoxicating liquor in violation of statute) ; Borough of Cambridge 
 Springs v. Moses, 22 Pa. Co. Ct. Eep. 637. 
 
 99 United States v. Debs, 64 Fed, 724, 753; People v. Truckee Lum- 
 ber Co., 116 Cal, 397, 58 Am, St. Rep. 183, 48 Pac. 374; Barrett v. 
 Mt, Greenwood etc. Assn., 159 111. 385, 50 Am. St. Rep. 168, 42 N. E. 
 891, 31 L. R. A. 109; People's Gas Co. v. Tyner. 131 Ind. 277, 31 Am. 
 St. Rep. 433, 31 N. E. 59, 16 L. R. A. 443; Columbian Athletic Club 
 V. State, 143 Ind. 98, 52 Am. St. Rep. 407, 40 N. E. 915, 28 L. E. A. 
 727; Hamilton v. Whitridge, 11 Md. 128, 69 Am. Dec. 184; State v. 
 Saunders, 66 N. H. 39, 25 Atl. 588, 18 L. R. A. 646; North Bloomfiel.l 
 etc. Co. V. United States, 88 Fed, 664, 32 C. C. A. 84, affirming 81 Fed. 
 243. 
 
 100 State V. Crawford, 28 Kan, 726, 42 Am. Eep. 182,
 
 897 INJUNCTION AGAINST NUISANCE. § 528 
 
 trench on tlie requirement for preserving jury trial.*®' 
 If it could be shown that the purpose of the act were to 
 punish or make compensation for past acts in equity 
 without jury trial, the decision might be dilferent.*"^ 
 
 § 528. The Defendant's Motive. — How far the defend- 
 ant's motive may be of importance in cases of nuisance 
 
 101 Littleton v. Fritz, 65 Iowa, 488, 54 Am. Kep. 19, 22 N. W. 641 
 (keeping a saloon) ; State v. Saunders, 66 N. H. 39, 25 Atl. 588, 18 L. 
 R. A. 646 (same as preceding case); Davis v. Auld, 96 Me. 559, 53 Atl. 
 118; Eilenbecker v. Dist. Ct. of Plymouth Co., 134 U. S. 31, 10 Sup. 
 Ct. 424, 33 L. ed. 801. In the lust case cited the plaintiff haviug 
 been enjoined from violating the liquor law, was afterwards found . 
 guilty of contempt for disobeying the injunction and sentenced to 
 pay $500 or go to prison for three months. He carried the case to 
 the supreme court, because, among other things, the equity court 
 had imposed this punishment upon him without trial by jury. In 
 affirming the decision of the state court it was said: "If the objec- 
 tion is that it authorizes a proceeding in the nature of a suit in 
 equity to suppress the manufacture and sale of intoxicating liquors, 
 which are by law prohibited, and to abate the nuisance which the 
 statute declares such acts to be, wherever carried on, we respond 
 that, so far as at present advised, it appears to us that all the pow- 
 ers of a court, whether at common law or in chancery, may be called 
 into operation by a legislative body for the purpose of suppressing 
 the objectionable traffic. And we know of no hindrance in the con- 
 stitution of the United States to the form of proceedings, or to the 
 court in which this remedy shall be had. Certainly it seems to us tu 
 be quite as wise to use the processes of the law and the powers of 
 the court to prevent the evil as to punish the offense as a crime after 
 it has been committed." A city sheltering itself under authority 
 of law from liability for acts which between private individuals 
 would be a nuisance must show an express or clearly implied authority 
 to do such acts: Hill v. Mayor etc. N. Y., 139 N. Y. 495, 34 N. 
 E. 1090, reversing 63 Hun, 633, 18 N. Y. Supp. 399; Spring v. Dela- 
 ware, L. & W. E. Co., 88 Hun, 385, 34 N. Y, Supp. 810. 
 
 102 State V. Saunders, 66 N. H. 39, 25 Atl. 588, 594, 18 L. R. A. 
 646. It is not a violation of such statutes for an officer to sell in- 
 toxicating liquors under execution, it the sale is an honest one for 
 the benefit of the plaintiff in execution under proper process; it is a 
 violation, subject to injunction, if the sale by the officer is a collu- 
 Bive attempt to evade the statute: Fears v. State, 102 Ga. 274. 29 S. 
 E. 463. On the subject of this section, see also, ante, chapter XXI. 
 
 Equitable Kemedies, Vol. I — 57
 
 S 528 EQUITABLE REMEDIES. 898 
 
 is, strictly, a matter of substantive law, and not of the 
 equitable remedy. But, inasmuch as, in a narrow 
 range of cases, the question has, of late years, received 
 considerable attention, largely in applications for in- 
 junctions, and as it is likely to arise in the future in 
 similar applications, rather than in actions at law, be- 
 cause the equitable remedy is the only one to afford ade- 
 quate redress, it may be well briefly to treat of it here. 
 If one draws off percolating water and thus dries up 
 his neighbor's well ; or erects a high fence on his own 
 land which shuts off the light from the house of his 
 neighbor (who has no easement of light and air), in both 
 cases acting from a malevolent motive to injure the 
 neighbor, and not otherwise to benefit himself than by 
 causing the injury, has the neighbor any legal cause 
 for complaint? In this form, and almost exclusively 
 on the above facts, the question has arisen. In cases 
 of percolating water there are dicta from the earliest 
 cases down, that such water cannot be drawn off for the 
 sole and malicious purpose of injuring one's neigh- 
 J3QJ.103 rj^jjg cases in which the courts have actually 
 decided the question have been mainly on application 
 for injunctions, which -have been granted. ^^* The 
 
 103 Chasemore v. Richards, 7 H. L. Cas. 349, 387; Greenleaf v. 
 Francis, 18 Pick. 117; Wheatley v. Baugh, 25 Pa. St. 528, 64 Am. 
 Dec. 721; Cbesley v. King, 74 Me. 164, 43 Am. Rep. 569; Roath v. 
 DriscoU, 20 Conn. 533, 52 Am. Dec. 352. Contra^ Frazier v. Browa, 
 12 Ohio St. 294. 
 
 104 Forbell v. City of New York, 164 N. Y. 522, 79 Am. St. Rep. 
 666, 58 N. E. 644, 51 L. R. A. 695; Stillwater Water Co. v. Farmer, 
 89 Minn. 58, 99 Am. St. Rep. 541, 93 N. W. 907, 60 L. R. A. 875; 
 Barclay v. Abraham, 121 Iowa, €19, 100 Am. St. Rep. 365, 96 N. W. 
 1080. Contra, Huber v. Merkel, 117 Wis. 355, 98 Am. St. Rep. 355, 
 94 N. W. 354. In actions at law the same thing has been held in 
 Bassett v. Salisbury Mfg. Co., 43 N. H. 569, 82 Am. Dec. 179; Swett 
 V. Cutts, 50 N. H. 439, 9 Am. Rep. 276. Contra, Phelps v. Nowlan. 
 72 N. Y. 39, 28 Am. Rep. 93. In Forbell v. City of New York, svpra, 
 it was held that the owner of land could not draw the percolating
 
 899 INJUNCTION AGAINST NUISANCE. { 528 
 
 ground of decision, however, is narrower than the mere 
 impropriety of the defendant's motive; instead it takes 
 the form of a rule of property that one may collect and 
 consume percolating water only for beneficial use on 
 the land on which it is collected ; collection of it for any 
 other purpose may be enjoined by any person affected 
 injuriously. Thus expressed it is no more drastic a 
 limitation of property rights than are all the rules 
 
 water into wells for the purpose of selling it for consumption off the 
 land. In Barclay v. Abraham, supra, and Stillwater Co. v. Farmer, 
 supra, it was held that one could not collect percolating water on his 
 own land and waste it to the injury of others. In the latter of these 
 cases the court, per Collins, J., said: "In holding as we do, and in 
 laying down a rule which confessedly is something of a departure 
 from the general doctrine found in the books, and is an advanced 
 position, we are not really discarding the maxim, cujus est solum eju^ 
 est usque ad coelmn, or doing violence to any of the reasons which 
 have been given for it. We are not involving any set of legal rules 
 in hopeless uncertainty, and therefore rendering their application 
 practically impossible, for the rule which we adopt is not only just, 
 but is exceeding plain, certain, practical, and easy to apply to real 
 con '.itions. Nor will our recognition of the doctrine of correlative 
 rights interfere in any manner with material improvements, to the 
 detriment of the state. On the contrary, it will tend to promota 
 the prosperity and general welfare of all citizens whose necessities 
 bring them within its influence. Nor are we entirely without author- 
 ity for such a doctrine. We therefore formulate and announce the 
 rule governing the facts here to be that, except for the benefit and 
 improvement of his own premises, or for his beneficial use, the 
 owner of land has no right to drain, collect, or divert percolating 
 waters thereon, when such acts will destroy or materially injure the 
 spring of another person, the waters of which spring are used by the 
 general public for domestic purposes." In Barclay v. Abraham, 
 supra, the court, per Ladd, J., said: "The prevention of carrying the 
 water from the land of the owner for the purposes of commerce or 
 waste cannot retard the improvement of the land itself, and there 
 is no just ground for tolerating such diversion when the direct re- 
 sult is to deprive the adjoining land owners by the incidental drainage 
 of their land of a supply of water from the same natural reservoir. 
 This would be extracting the subterranean water from the adjoining 
 land to its injury, without any counter benefit to the land through 
 which taken."
 
 f 528 EQUITABLE BEMEDIES. 900 
 
 which ordinarily define a nuisance; indeed, it is doubt- 
 ful if it goes so far, while the beneficial results to flow 
 from it are obvious. In dealing with the cases of "spite 
 fences" and similar erections, the courts have made 
 them turn on the malevolent motive of the defendant in 
 erecting the structure. The objections which have been 
 made to such a criterion of legal rights and liabilities 
 have been expressed as follows: "To permit a man to 
 cause a certain injurious effect upon the premises of his 
 neighbor by the erection of a structure on his premises 
 if such structure is beneficial or ornamental, and to pro- 
 hibit him from causing the same effect in case the struc- 
 ture is neither beneficial nor ornamental, but erected 
 from motives of pure malice, is not protecting a legal 
 right, but is controlling his moral conduct."^''^ It 
 would seem clear, however, there is neither justice nor 
 expediency in allowing such things as the building of 
 a spite fence to be done, unless the preservation of prop- 
 erty rights demands it. "It is plain that the right to 
 use one's property for the sole purpose of injuring 
 others is not one of the immediate rights of ownership; 
 it is not a right for the sake of which property is rec- 
 ognized by law, but is only a more or less necessary in- 
 cident of rights which are established for very dif- 
 ferent ends."^"^ And, however forcible the objections 
 may be to founding relief upon the defendant's im- 
 moral motive alone, it seems clear that here the ac- 
 tual interference with the defendant in the use of his 
 property would be less radical than in most cases of 
 nuisance. There he is not allowed to make a use of his 
 premises which is generally beneficial both to himself 
 
 105 Letts V. Kessler, 54 Ohio St, 73, 42 N. E. 765, 40 L. R. A. 177, 
 overruling 7 Ohio Cir, Eep. 108. 
 
 106 Per Holmes, J., in Eideout v. Knox, 148 Mass, 368, 12 Am. St. 
 Bep. 560, 19 N. E. 390, 2 L. E. A. 81.
 
 901 INJUNCTION AGAINST NUISANCE. § 528 
 
 and to society; here the use he is making is beneficial 
 to neither and may be equally harmful with recognized 
 nuisances to the plaintiff. As a result of the antago- 
 nistic influences that bear on the case in this form, the 
 authorities are divided. Partly by judicial declara- 
 tion/""^ but more largely by virtue of statutes,^ *^* the 
 weight of authority is that structures of the kind un- 
 der discussion are unlawful and their maintenance may 
 be enjoined. But the malevolent motive must in such 
 cases be the dominant one, such that even if no other 
 were present it would induce the act complained of; 
 it will not do if it is simply present together with 
 other motives which are worthy.^*^^ Some courts, how- 
 ever, have declined to adopt even this restricted doc- 
 
 107 Burke v. Smith, 69 Mich. 3S0, 37 N. W. 838; Flaherty v. Moran, 
 81 Mich. 52, 2 Anu St. Eep. 510, 45 N. W. 381, 8 L. E. A. 183; Kirk- 
 wood V. Finegan, 95 Mich. 543, 55 N. W. 457; Peck v. Koe, 110 Mich. 
 52, 67 N. W. 1080. 
 
 108 Connecticut.— Gen. Stats., ed. 1902, §§ 1013, 1107. Injunctions 
 allowed in Harbison v. White, 46 Conn. 106; Whitlock v. Uhle, 75 
 Conn. 423, 53 Atl. 891. 
 
 Maine. — Freeman's Supplement, c. 17, § 5. Construed in Lord v. 
 Langdon, 91 Me. 221, 39 Atl. 552. 
 
 Massachusetts. — Acts and Eesolves, 1887, c. 348. Actions for dam- 
 ages allowed in Eideout v. Knox, 148 Mass. 368, 12 Am. St. Eep. 560, 
 
 19 N. E. 390, 2 L. E. A. 81; Smith v. Morse, 148 Mass. 407, 19 N. E. 
 393; not allowed in Spaukling v. Smith, 162 Mass. 543, 39 N. E. 189. 
 
 New Hampshire.— Stats., ed. 1902, c. 143, §§ 28, 29, 30. Construed 
 in Hunt v. Coggin, 66 N. H. 140, 20 Atl, 250. 
 
 Vermont. — Laws of Vermont, 1886, No. 84. 
 
 Washington. — 2 Hill's Ann. Stats. & Codes, § 268; Ballinger's 
 Ann. Codes, § 5433. Injunction allowed in Karasek v. Peier, 22 
 Wash. 419, 61 Pac. 33, 50 L. E, A. 345, 
 
 109 Kuzniak v. Kozminski, 107 Mich. 444, 61 Am. St. Eep. 344, 
 65 N. W. 275; Ladd v. Flynn, 90 Mich. 181, 51 N. W. 203; Eideout 
 V. Knox, 148 Mass. 368, 12 Am. St. Eep. 560, 19 N. E. 390, 2 L. E, A. 
 81; Gallegher v. Dodge, 48 Conn. 387, 40 Am. Eep. 182; Lord v. 
 Langdon, 91 Me. 221, 39 Atl. 552; see Hunt v. Coggin, 66 N. H. 140, 
 
 20 Atl. 250.
 
 § 528 EQUITABLE REMEDIES, 902 
 
 trine, and, preferring the liardsliip of individual cases 
 to a ground of jurisdiction considered to be so fallible 
 as the defendant's immoral motive, have refused re- 
 lief.^ ^*^ It may be permissible to suggest that if the 
 lead of the cases on percolating water were followed, 
 and the decisions based on the reasoning that a man's 
 property right in the passage of light and air over his 
 land is not an absolute right to interfere with it ar- 
 bitrarily as he chooses, but only for purposes useful and 
 beneficial to him in connection with the land itself, the 
 unfortunate criterion of bad motive would be removed, 
 no harmful restriction of property rights would be 
 created, and the ends of justice would be furthered. 
 
 110 Mahan v. Brown, 13 Wend. 261, 28 Am. Dec. 461; Letts v. 
 Kessler, 54 Ohio St. 73, 42 N. E. 765, 40 L. R. A. 177, overruling 
 Kessler v. Letts, 7 Ohio Cir. Eep. 108; Metzker v. Hoehrein, 107 Wis. 
 267, 81 Am. St. Eep. 841, 83 N. W. 308, 50 L. E. A. 305; Bordeaux 
 V. Greene, 22 Mont. 254, 74 Am. St. Eep. 600, 56 Pac. 218; Falloon 
 V, Schilling, 29 Kan. 292, 44 Am. Rep. 642. See, also. Guest v. 
 Eeynolds, 68 111. 478, 18 Am. Eep. 570; Housel v. Conant, 12 111. App. 
 259. In Burke v. Smith, 69 Mich. 380, 37 N. W. 838, Mahan v. Brown, 
 supra, was distinguished on the ground that the existence of the 
 doctrine of ancient lights in New York made the holding necessary in 
 order that a land owner may be able to prevent an easement of 
 light over his land from arising. 
 
 The question of allowing natural gas to escape on one's land has 
 given rise to a similar discussion to that concerning air and per- 
 colating water. See Ohio Oil Co. v. State of Indiana, 150 Ind. G98, 
 50 N. E. 1124, affirmed in 177 U. S. 190, 20 Sup. Ct. 576, 44 L. ed, 
 729; Hague v. Wheeler, 157 Pa. St. 324, 37 Am, St. Eep. 736, 27 Atl. 
 714, 22 L. R. A. 141. 
 
 In the following cases there are intimations that the court will con- 
 sider the parties' motive in ordinary cases of nuisance: Christie v. 
 Davie, [1893] 1 Ch. 316 (motive of defendant in making a noiso); 
 Medford v. Levy, 31 W. Va. 649, 13 Am. St. Eep. 887, 8 S. E. 302, 
 2 L, E. A. 368 (quarrel between neighbors); Bassett v. Salisbury, 
 47 N. H, 426 (plaintiff bought land flooded by defendant's dam in 
 order to compel defendant to buy other land from him); Edwards v. 
 Allouez Mining Co., 38 Mich. 46, 31 Am. Eep. 301 (similar to preceding 
 case).
 
 903 INJUNCTION AGAINST NUISANCE. § 529 
 
 § 529. The Balance of Injury. — The question liow far 
 courts of equity, in dealing with cases of admitted or 
 established nuisances, should be influenced, in their 
 determination whether to grant an injunction or to 
 turn the plaintiff over to his remedy at law, by the 
 balance between the injury to the plaintiff from re- 
 fusing, and to the defendant from granting the injunc- 
 tion, has received considerable attention from the 
 courts, and has met with conflicting answers — often 
 from courts within the same jurisdiction. It is to be 
 noted that the question as here raised excludes certain 
 situations in which its consideration is, beyond all 
 doubt, proper and even necessary. The first of these 
 is on application for temporary injunctions, in which, 
 the questions in dispute being undetermined, the courts 
 must take account of the possibilities of injury in a 
 course of action which the hearing may prove to be the 
 wrong one.^^^ The second, is in the determination of 
 the wrongfulness of the defendant's act — the fact of 
 nuisance or no nuisance — in that large class of cases 
 in which there is no invasion of a clearly defined right 
 of the plaintiff — such as, say, the right to have water 
 flow in its accustomed channel — but, rather, of a right 
 which is determined by all the circumstances of the 
 case, place, time, degree, and the like — nuisances such 
 as noise, vibration and pollution of air. In cases of 
 this sort a balancing of injury — the plaintiff's comfort 
 and enjoyment against the public benefit from the pros- 
 ecution of the business complained of, the defendant's 
 advantage in carrying on his offending business against 
 the plaintiff's welfare — is, of course, an essential factor 
 in the decision whether any nuisance exists or not. 
 But this point having been determined in the plaintiff's 
 favor, the question now to be discussed is, whether, on 
 
 111 See infra, § 535.
 
 § 530 EQUITABLE REMEDIES. 904 
 
 an application for a permanent injunction against an 
 admitted or proved nuisance, the courts of equity 
 should carry this balancing of injury admittedly fur- 
 ther than the courts of law carry it, and make it a 
 test for the granting or withholding of their peculiar 
 relief. 
 
 § 530. Balance Between Private Parties. — The balance 
 of injury which may determine the granting or refusing 
 of an injunction arises in two forms, which, however, 
 may appear together in the same case. In the first of 
 these the balance is between the injuries to the plain- 
 tiff, a private individual, and to another private indi- 
 vidual ; in the second, between the injuries to the plain- 
 tiff, a private individual, and to the public, which ben- 
 efits from the defendant's wrongful enterprise. On 
 the first of these questions, curiously enough, the same 
 jurisdiction furnishes as strong statements on both 
 sides as may be found. In Richard's Appeal,^ ^^ an in- 
 junction was sought against the use of bituminous coal 
 in the defendant's iron-works, which materially injured 
 the plaintiff's dwelling-house and his cotton factory. 
 In refusing the injunction the court said: "An error 
 seems somewhat prevalent in portions, at least, of this 
 commonwealth in regard to proceedings in equity to 
 restrain the commission of nuisances. It seems to be 
 supposed that, as at law, whenever a case is made out 
 of wrongful acts on the one side and consequent injury 
 on the other, a decree to restrain the act complained 
 of must as certainly follow as a judgment would follow 
 a verdict in a common-law court. This is a mistake. 
 It is elementary law that in equity a decree is never of 
 right, as a judgment at law is, but of grace. Hence, 
 the chancellor will consider whether he would not do a 
 
 112 57 Pa. St. 105, 98 Am. Dec. 202.
 
 905 INJUNCTION AGAINST NUISANCE. § 530 
 
 greater injury by enjoining than would result from re- 
 fusing, and leaving the party to his redress at the hands 
 of a court and jury. If in conscience the former should 
 appear, he will refuse to enjoin." In Evans v. Reading 
 etc. Fertilizing Co.^^^ the bill was to enjoin the opera- 
 tion of a fertilizer factory, the stench from which ren- 
 dered the plaintiff's house almost uninhabitable. Af- 
 ter remarking that the proper application of the ''bal- 
 ance of injury notion" was to motions for preliminary 
 injunctions, the court continued : "But where, upon final 
 hearing, the mind of the chancellor is satisfied that the 
 complainant's right is clear, and the injury sustained 
 by him substantial, so that his claim to damages at law 
 is indisputable, and where, moreover, such damages 
 could not give him adequate redress except by an end- 
 less repetition of suits, a refusal of an injunction upon 
 the ground that plaintiff cannot suffer as great a loss 
 from the continuance of the nuisance as defendant 
 would from its interdiction, would be as far from 
 equity as can be. There is, to my mind, no more of- 
 fensive plea than that by which one seeks to justify 
 an act injurious to his neighbor on the ground of its 
 advantage to himself." The court, in another juris- 
 diction, replying to the argument for a balancing of 
 the injury said: "If the injuries to the plaintiffs were 
 of a trivial character, they should, perhaps, be consid- 
 ered damnum absque injuria; but a comparison of the 
 value of the conflicting rights would be a novel mode 
 of determining their legal superiority."^ ^^ The sug- 
 gestion of these last two quotations that a balancing 
 of injury is given effect to once in the determination 
 of the fact of nuisance and, hence, does not need to be 
 made a second time in determining the proper remedy, 
 
 113 160 Pa. St. 209, 20 Atl. 702. 
 
 114 Weaver v. Eureka Lake Co., 15 Cal. 271.
 
 § 530 EQUITABLE EEMEDIES. 906 
 
 and that it is anomalous to deny the equitable relief in 
 a case where the legal wrong and the inadequacy of 
 the legal remedy are established, is very hard to meet. 
 Denying the injunction puts the hardship on the party 
 in whose favor the legal right exists instead of on the 
 wrong-doer. If relief intermediate between the radi- 
 cal remedy of injunction and the insufficient one of re- 
 peated actions at law for damages as they accrue is 
 desirable, it would seem that a legislative provision is 
 necessary to supply it. The weight of authority is 
 against allowing a balancing of injury as a means of 
 determining the propriety of issuing an in j unction.^ ^^ 
 
 115 Higgins V. Flemington Co., 36 N. J. Eq. (9 Stew.) 538; Hen- 
 nessy v. Carmony, 50 N. J. Eq. (5 Dick.) 616, 25 Atl. 374; Evans v. 
 Eeading etc. Fertilizing Co., 160 Pa, St. 209, 28 Atl. 702; Weaver v. 
 Eureka Lake Co., 15 Cal. 271; Corning v. Troy etc. Factory, 40 N. 
 Y. 191, 39 Barb. 311, 34 Barb. 485, 6 How. Pr. 89; Amsterdam etc. 
 Co. V. Dean, 13 App. Div. 42, 43 N. Y. Snpp. 29; Banks v. Frazier, 23 
 Ky. Law Kep. 1197, 64 S. W. 9S3; Suffolk etc. Co. v. San Miguel etc. 
 Co., 9 Colo. App, 407, 48 Pac. 828; Clowes v. Staffordshire etc. Co., 
 L. E. 8 Ch. App. 125; Pennington v. Brinsop etc. Co., L. E. 5 Ch. D. 
 769; Young v. Banker etc. Co., [1893 J App, Cas. 691, 702; Hobbs 
 v. Amador Co., 66 Cal, 161, 4 Pac. 1147; Chestatee Co, v, Cavenders 
 Co., 118 Ga, 255, 45 S, E. 267; Weston Paper Co. v. Pope, 155 Ind. 394, 
 57 N. E, 719, 56 L. E. A, 899; Townsend v. Bell, 62 Hun, 306, 17 N, Y. 
 Snpp. 210; Brown v. Ontario etc. Co., 31 App. Div. 273, 80 N. Y. 
 Supp, 837; Beckwith v. Howard, 6 E. L 1. See, also, 14 Harv. Law 
 Eev., p, 458. In Weston Paper Co. v. Pope, supra, the court, per Had- 
 ley, J., said: "The fact that the appellant has expended a large sum of 
 money in the construction of its plant and that it conducts its busi- 
 ness in a careful manner and without malice can make no difference 
 in its rights to the stream Before locating the plant the owners were 
 bound to know that every riparian proprietor is entitled to have 
 the waters of the stream that washes his land come to it without ob- 
 struction, diversion, or corruption, subject only to the reasonable use 
 of the water, by those similarly entitled, for such domestic purposes 
 as are inseparable from and necessary for the free use of their land; 
 and they were bound also to know the character of their proposed 
 business, and to take notice of the size, course and capacity of the 
 stream, and to determine for themselves and at their own peril 
 whether they should be able to conduct their business upon a stream
 
 907 INJUNCTION AGAINST NUISANCJE. § 531 
 
 § 531. Balance Between the Plaintiff and the Puhlic. — 
 When the defendant's business which constitutes the 
 nuisance complained of is one from which the public 
 benefits directly or in an unusually marked degree, the 
 balance of injury presents itself in a different form. 
 Shall the plaintiff by procuring an injunction put an 
 end to a business from which the public receives large 
 benefit, and from the stopping of which public hardship 
 would ensue? The extreme case which will fully test 
 
 of the size and character of Brandywine creek without injury to their 
 neighbors; and the magnitude of their investment and their freedom 
 from malice furnish no reason why they should escape the conse- 
 quences of their own folly." In the following cases there are state- 
 ments of the courts that the balance of injury between the plaintiff 
 and defendant is to be considered in determining whether to issua 
 an injunction. In almost every case, however, the statement has 
 been repudiated by the court making it, or is a dicUim, or is a part 
 only of the ground of decision: Davis v. Sawyer, 133 Mass. 289, 43 
 Am. Eep. 519 (dictum); Wood v. Sutcliffe, 2 Sim., N. S., 163 (part 
 only of ground of decision, and clearly not the doctrine of the Eng- 
 lish courts; see cases cited, supra); Eichards* Appeal, 57 Pa. St. (7 
 P. F. Smith) 105, 93 Am. Dec. 202 (overruled in Evans v. Eeadin^ 
 etc. Fertilizing Co., supra) ; Herr v. Central etc. Asylum, 22 Ky. Law 
 Eep. 1722, 61 S. W. 283 (acquiescence of defendant also shown); 
 Hawley v. Beardsley, 47 Conn. 571 (but injury was such that the 
 legal remedy was adequate) ; Eobinson v. Clapp, 67 Conn. 538, 52 Am. 
 Bt. Eep. 298, 35 Atl. 504 (it was doubtful if thing threatened — cut- 
 ting away projecting trunk of a boundary tree — was a legal wrong at 
 all) ; Tuttle v. Church, 53 Fed. 422 (but no nuisance was established in 
 fact); Fox v. Holcomb, 32 Mich. 494; Turner v. Hart, 71 Mich. 128, 
 15 Am. St. Eep. 243, 38 N. W. 890; City of Big Eapids v. Comstock, 
 65 Mich. 78, 31 N. W. 811 (dictum); Potter v. Saginaw etc. Ey. Co., 
 83 Mich. 285, 47 N. W. 217, 10 L. E. A. 176 (dictum); cf. Stock v. 
 Jefferson Tp., 114 Mich. 357, 72 N. W. 132, 38 L. E. A. 355; Dana 
 V. Craddock, 66 N. H. 593, 32 Atl. 757 (dictum); Goodall v. Crofton, 
 33 Ohio St. 271, 31 Am. Eep. 535 (dictum); Wahl v. Cemetery Assn., 
 197 Pa. St. 197, 46 Atl. 913 (dictum); Becker v. Lebanon etc. Co., 
 188 Pa. St. 484, 41 Atl. 612 (but laches also present in the case; cf. 
 Pennsylvania cases cited, supra); Morris etc. Co. v. Prudden, 20 N. 
 J. Eq. 530 (cf. New Jersey cases cited, supra); Madison v. Ducktown 
 S., C. & I. Co. (Tenn.), 83 S. W. 658 (but decision is influenced by 
 B statute).
 
 { 531 EQUITABLE EEMEDIES. 908 
 
 the ruk' Is that in which the defendant is a quasi-'puhlic 
 corpordUon engaged in supplying a city with water or 
 other necessity. In such a case the nuisance com- 
 plaiu'-jd of was the smoke from the defendant's water- 
 works, which, in a material degree, deprived the plain- 
 tiffs of the enjoyment of their property. In denying 
 an injunction the court said: "If the defendant were 
 enjoined even for a time, the result might be disastrous; 
 for the water supplied by it is the only efficient means 
 of extinguishing conflagrations at the command of the 
 city or its citizens. Besides this, a daily and hourly 
 supply of water used for many purposes would be cut 
 off. We think it may be safely assumed that the rule 
 in equity is, that where the damages can be admeasured 
 and compensated, equity will not interfere where the 
 public benefit greatly outweighs private and individual 
 inconvenience."^ ^^ On the other side, it has been said 
 by an able chancellor on substantially similar facts : "If 
 it should turn out that the company had no right so 
 to manufacture gas as to damage the plaintiff's market 
 garden, I have come to the conclusion, that I cannot 
 enter into any question of how far it might be cou- 
 
 116 Per Seevers, J., in Daniels v. Keokuk "Water-works, 6l Iowa, 
 549, 16 N. W. 705. To the same effect are statements in the follow- 
 ing cases: Miller v. City of Webster City, 94 Iowa, 162, 62 N. W. 
 64S; Rouse v. Martin, 75 Ala. 510, 51 Am. Kep. 463; Clifton Iron Co. 
 V. Dye, 87 Ala. 468, 6 South. 192 (acquiescence on plaintiff's part 
 also found); Stewart Wire Co. v. Lehigh Coal etc. Co., 203 Pa. St. 
 474, 53 Atl. 352 (plaintiff guilty of acquiescence, however) ; Eiede- 
 man v. Mt. Morris etc. Co., 56 App. Div. 23, 67 N. Y. Supp. 391 (but 
 there was doubt whether plaintiff was substantially damaged by 
 the thing complained of) ; Atchison etc. Co. v. Meyer, 62 Kan. 696, 
 64 Pae. 597 (but the legal remedy was adequate); Grey v. City of 
 Paterson (N. J.), 45 Atl. 995, 48 L. E. A. 717 (but plaintiffs wero 
 guilty of acquiescence) ; Fisk v. City of Hartford, 70 Conn. 720, 66 
 Am. St. Eep. 147, 40 Atl. 906 (but the legal remedy was adequate, 
 and plaintiff had been guilty of laches) ; Wees v. Coal etc. Co., 54 W. 
 Va. 421, 46 S. E. 166; Lilly white v. Trimmer, 36 L. J. Ch. 525.
 
 909 INJUNCTION AGAINST NUISANCE. § 531 
 
 venient for the public that the j;as manufacture should 
 go on. That might be a good ground for the legisla- 
 ture to declare that the company might make gas if 
 they indemnified the plaintiff; but, unless the company 
 had such a right I think the present is not a case in 
 which this court can go into the question of con- 
 venience or inconvenience, and say where a party is 
 substantially damaged, that he can only be compen- 
 sated by bringing an action toties quotics. That would 
 be a disgraceful state of the law; and I quite agree 
 with the vice-chancellor, in holding that in such a case 
 this court must issue an injunction, whatever may be the 
 consequences with regard to the lighting of the parishes 
 and district which this company supplies with gas."^^' 
 
 117 Lord Cranworth in Broadbent v. Imperial Gas. Co., 7 De Gex, 
 M. & G, 436, 462, affirmed in 7 H. L. Cas. 600. To the same effect are 
 Attorney-General v. Council etc. Birmingham, 4 Kay & J. 528, 538; 
 Attorney-General v. Colney etc. Asylum, L. E. 4 Ch. App. 146; At- 
 torney-General V. Terry, L. E. 9 Ch. App. 423; Sammona v. City of 
 Gloversville, 34 Mise. Eep. 459, 70 N. Y. Supp. 284; Stock v. Jeffer- 
 son Township, 114 Mich. 357, 72 N. W. 132, 38 L. E. A. 355; Ex parte 
 Martin, 13 Ark. 198, 58 Am. Dec. 321; Village of Dwight v. Hayes, 
 150 111. 273, 41 Am. St. Eep. 367, 37 N. E. 218, affirming 49 III. App. 
 530; Hinchman v. Paterson etc. Co., 17 N. J. Eq. (2 C. E. Green) 75, 
 86 Am. Dec. 252 (dictum); Aquackanock etc. Co. v. Watson, 29 N. .T. 
 Eq. 366; Harper etc. Co. v. Mountain Water Co., 65 N. J. Eq. 479, .56 
 Atl. 297; Smith v. City of Eochester, 38 Hun, 612, affirmed in 104 
 N. Y. 674; Duesler v. City of Johnstown, 24 App. Div. 608, 48 N. Y. 
 Supp. 683. In Attorney-General v. Council etc. Birmingham, supra, 
 Wood, V. C, said: "It has been urged upon me more than once during 
 the argument by the counsel for the defendants, that there are 250,- 
 000 inhabitants in the town of Birmingham, and that this circum- 
 stance must be taken into consideration in determining the question 
 
 of the plaintiff's right to an injunction Now, with regard to 
 
 the question of the plaintiff's right to an injunction, it appears to me, 
 that, so far as this court is concerned, it is a matter of almost abso- 
 lute indifference whether the decision will affect a population of 
 250,000 or a single individual carrying on a manufactory for his own 
 benefit. The rights of the plaintiff must be measured precisely aa 
 they have been left by the legislature. I am not sitting here aa a
 
 8 r.32 EQUITABLE KEMEDIES. 910 
 
 On its merits, as well as on authority, the superiority of 
 this latter view seems hardly to admit of doubt. The re- 
 fusal of the injunction, in the first place, leaves the plain- 
 tiff to suffer an admitted legal wrong and to obtain his 
 only redress by an admittedly inadequate remedy. And, 
 in the second place, so far as the interests of the public 
 are considered, that case is not to be distinguished in 
 principle from the taking of property for public pur- 
 poses which the federal constitution forbids; true, the 
 damage from a nuisance may not always be a "taking" 
 as defined by the authorities, but it would seem within 
 the same reasoning ;^i^ and, if the public need requires 
 it, the plaintiff's property can be taken or legislative 
 provision made for the payment of permanent damages 
 to him. The objection that temporary hardship to the 
 public may result from granting the injunction at once 
 can be obviated by allowing time for the necessary re- 
 adjustment, before putting it into effect.^^' 
 
 § 532. Nuisance Easily Avoided by the Plaintiff. — Closely 
 related to the question discussed in the preceding para- 
 graphs is another which is raised when there is offered 
 as a defense to a bill for an injunction against a nui- 
 sance, the fact that the plaintiff could prevent the 
 nuisance by a comparatively small outlay of labor or 
 expense. In most of the cases in which the question 
 has arisen, the defense has been rejected, sometimes 
 with vigor. "Neither does it make any difference," 
 
 committee for public safety, armed with arbitrary power to prevent 
 what, it is said, will be a great injury, not to Birmingham only, but 
 to the whole of England,— that is not my function." 
 
 118 See Pennsylvania E. R, Co. v. Angel, 41 N. J. Eq. (14 Stew.) 
 316, 56 Am. Rep. 1, 7 Atl. 432; Baltimore etc. Co. v. Fifth Baptist 
 Church, 108 U. S. 317, 2 Sup. Ct. 719. 
 
 119 See the form of decree in Harding v. Stamford Water Co., 41 
 Conn. 87, and the remarks of Selwyn, L. J., in Attorney-General v. 
 Colney etc. Asylum, 4 Ch. App. 146, 165, 166.
 
 yil INJUNCTION AGAINST NUISANCE. ( 532 
 
 said the court in Paddock v. Somes/ ^o "or in any meas- 
 ure operate as an excuse that the nuisance cannot be. 
 obviated without great expense, or that the plaintiff 
 himself could obviate the injury at a trifling expense. 
 It is the duty of every person or public body to prevent 
 a nuisance, and the fact that the person injured could, 
 but does not, prevent damages to his property therefrom 
 is no defense either to an action at law or in equity. 
 A party is not bound to expend a dollar, or to do any 
 act to secure for himself the exercise or enjoyment of 
 a legal right of which he is deprived by reason of the 
 wrongful acts of another." In a comparatively early 
 case the same question was raised on the following 
 facts: The plaintiff's spring was overflowed and sedi- 
 ment deposited in it as a result of the working of the 
 defendant's mill. It appeared that the spring could 
 be protected by digging a ditch two hundred and fifty 
 yards long. On these facts it was clear that a small 
 expenditure of labor would give the plaintiff protection 
 equal to that of an injunction and at the same 
 time leave the defendant undisturbed in the exercise 
 of his lawful business. Hence the injunction was re- 
 fused. ^^^ The unqualified refusal of the injunction 
 may perhaps be open to criticism in that it leaves the 
 plaintiff to incur the risk of recovering from the de- 
 fendant compensation for whatever labor or expense 
 he should be put to in doing away with the nuisance. 
 But it seems that a very simple and not uncommon 
 exercise of the court's power to mold decrees accord- 
 ing to the needs of the case would, in all such cases, 
 meet this criticism and yet save to the defendant the 
 right to continue his business. A decree so framed as 
 
 120 102 Mo. 226, 238, 14 S. W. 746, 10 L. E. A. 254, per Sherwood, 
 J., quoting Wood on Nuisances, 2d ed., 506. 
 
 121 Eosser v. Eandolph, 7 Port. (Ala.) 238, 31 Am. Dec, 712.
 
 5 533 EQUITABLE EEMEDIES. 91* 
 
 to grant the injunction unless tlie defendant would 
 either himself do the acts necessary to avoid the nui- 
 sance or give sufficient undertaking to protect the 
 plaintiff in doing them, and requiring the plaintiff 
 either to allow the defendant to do the acts or to ac- 
 cept the undertaking, as the case might be, on pain 
 of losing all equitable relief, would do full justice to 
 both parties without hardship to either.^-^ It must be 
 said, however, that this form of decree has not been 
 adopted by any court in this particular class of cases, 
 although the situation would seem an eminently appro- 
 priate one for it. The clear weight of authority is with 
 the first case cited above, granting the injunction un- 
 qualifiedly.^^* 
 
 § 533. Relief Given; Mandatory Injunctions. — The relief 
 sought in equity against nuisance is, of course, pre- 
 ventive, either to prohibit the creation of a nuisance or 
 to prevent an existing one from continuing in the fu- 
 
 122 For illustration of tliis form of decree, see Henderson v. New 
 York Cent. etc. Co., 78 N. Y. 423; Pappenheini v. Metropolitan etc. 
 Co., 128 N. Y. 436, 26 Am. St. Eep. 486, 28 N. E. 518, 13 L. E. A. 401. 
 
 123 Paddock v. Somes, 102 Mo. 226, 14 S. W. 746, 10 L. E. A. 254; 
 Boston Ferrule Co. v. Hills, 159 Mass. 147, 34 N. E. 85, 20 L. E. A. 
 844; Masonic etc. Assn. v. Banks, 94 Va. 695, 27 S. E. 490; EichmonJ 
 Mfg. Co. V. Atlantic etc. Co., 10 E. I. 106, 14 Am. Eep. 658; Middle- 
 stadt V. Waupaca etc. Co., 93 Wis. 1, 66 N. W. 713; Suffolk etc. Co. 
 V. San Miguel etc. Co., 9 Colo. App. 407, 48 Pac. 828; Clowes v. Staf- 
 fordshire etc. Co., 8 Ch. App. 125; Town of Burlington v. Schwarz- 
 man, 52 Conn. 181, 52 Am. Eep. 571; Martin v. Marks, 154 Ind. 
 549 57 N. E. 249. Contra, Eosser v. Eandolph, 7 Port. (Ala.) 238, 
 31 Am. Dec. 712; English v. Progress etc. Co., 95 Ala. 259, 10 South. 
 134- Kingsbury v. Flowers, 65 Ala. 479, 39 Am. Eep. 14; Porter 
 V. Armstrong, 132 N. C. 66, 43 S. E. 542. The suggestion of the 
 text would, of course, apply only where the nuisance arose out of 
 the application of the doctrine of correlative rights, not where the 
 defendant's acts which cause the nuisance are wrongful per se; nor 
 would it apply when the acts by which the nuisance was obviated 
 would cause substantial or permanent damage to the plaintiff.
 
 913 INJUNCTION AGAINST NUISANCE. { 533 
 
 ture. Ordinarily, this end is achieved by a mere pro- 
 hibitive injunction. When, as is not uncommonly the 
 case, however, the nuisance is one which exists, and will 
 continue to exist, because of acts already done — as, for 
 example, the building of a dam — without further acting 
 on the defendant's part, mere prohibition will not serve 
 to accomplish the desired result; mandatory relief is 
 necessary to end the wrong. In such a case it was said 
 by the court: "It is not to correct a wrong of the past, 
 in the sense of redress for the injury already sustained, 
 but to prevent further injury. The injury consists in 
 the overflow of the lands of the plaintiff. It was not 
 alone the building of the dam that caused the injury, 
 but its maintenance, or continuance, which is a part 
 of the act complained of; and its maintenance can only 
 be estopped so as to prevent its injury by its removal. 
 The removal of the dam, wrongfully constructed, is 
 necessary for and incidentally involved in the pre- 
 ventive redress which the law authorizes."^ ^^ On this 
 ground the use of mandatory injunctions is resorted to 
 whenever necessary to give the full relief to which the 
 plaintiff is entitled. In such cases it is generally de- 
 structive acts requiring no supervision that are required, 
 as the removal of an object that is, or causes, a nui- 
 sance.^^^ Occasionally, however, it may be con- 
 
 124 Troe V. Larson, 84 Iowa, 649, 35 Am. St. Eep. 336, 51 N. W. 
 179. 
 
 125 Troe V. Larson, supra; Holmes v. Calhoun Co., 97 Iowa, 360, 
 66 N. W. 145; Middlesex Co, v. City of Lowell, 149 Mass. 509, 21 
 N. E. 872; Crocker v. Manhattan etc. Co., 61 App. Div. 226, 70 N. 
 Y. Supp. 492; Eothery v. New York Rubber Co., 90 N. Y. 30; Ham- 
 mond V. Fuller, 1 Paige, 197; City of Mt. Clemens v. Mt. Clemens 
 etc. Co., 127 Mich. 115, 86 N. "W. 537, 8 Det. Leg, N. 282; Atchison 
 etc. Co. V. Lang, 46 Kan. 701, 26 Am. St. Rep. 165, 27 Pac. 182; 
 Shroyer v. Campbell, 31 Ind. App. 83, 67 N. E. 193; Martin v. Marks, 
 154 Ind. 549, 57 N. E. 249; Lake Erie etc. Co. v. Essington, 27 Ind. 
 App. 291, 60 N. E. 457; City of Eau Claire v. Matzke, 86 Wis. 291, 
 
 Equitable Remedies, Vol. 1—58
 
 § 534 EQUITABLE EEMEDIES. 914 
 
 structive or continuing acts that are directed.^ ^' Sub- 
 ject to tlie reluctance of equity courts to order tlie 
 doing of acts that will require supervision,^-'^ it is no 
 distinction between prohibitory and mandatory injunc- 
 tions or between different kinds of mandatory relief 
 that guides the court in the form of injunction issued, 
 but rather the nature of the relief demanded in order 
 to give the plaintiff the protection to which he is en- 
 titled. 
 
 § 534. Form of Injunction.— The forms of injunction 
 used against nuisances illustrate to an unusual degree 
 both the flexibility of equitable procedure and also the 
 relative nature of nuisances. In a great many cases a 
 thing is a nuisance not because it is in itself deemed 
 wrongful in law, but because the manner in which it is 
 done, or the extent to which it is carried, causes it to 
 cross the line beyond which the law will not allow one 
 
 56 N. W. 874; City of Wauwatosa v. Dreutzer, 116 Wis. 117, 92 N. 
 W. 551; McHugh v. Louisville Bridge Co., 23 Ky. Law Eep. 1546, 
 65 S. W. 456; Great Northern etc. Co. v, Clarence Ey., 1 Coll. C. C. 
 507; Laybourn v. Gridley, [1892] 2 Cli. 53; Attorney-General v. Heat- 
 ley, [1897] 1 Ch. 560; Goodrich v. Georgia etc. Co., 115 Ga. 340, 41 
 S. E. 659; Broome v. New York etc. Co., 42 N. J. Eq. 141, 7 Atl. 
 851; Clifton v. Town of Weston, 54 W. Va. 250, 46 S. E. 360; Baum- 
 gartner v. Bradt, 207 111. 345, 69 N. E. 912; Norwalk etc. Co. v. Ver- 
 nam, 75 Conn. 662, 96 Am. St. Eep. 246, 55 Atl. 168; Ackerman v. 
 True, 175 N. Y. 353, 67 N. E. 629; Village of Oxford v. Willoughby 
 (N. Y.), 73 N. E. 677; Allen v. Stowell, 145 Cal. 666, 104 Am. St. 
 Rep. 80, 79 Pac. 371. 
 
 126 City of Moundsville v. Ohio etc. Co., 37 W. Va. 92, 16 S. E. 
 514, 20 L. E. A. 161; City of Kankakee v. Trustees etc. Hospital, 66 
 111. App. 112; Manchester etc. Co. v. Worksop Board of Health, 23 
 Beav. 198; Kaspar v. Dawson, 71 Conn. 405, 42 Atl. 78; Corning v. 
 Troy etc. Factory, 40 N. Y. 191, 39 Barb. 311, 34 Barb. 485, 61 How. 
 Pr. 89; Bucholz v. New York etc. Co., 148 N. Y. 640, 43 N. E. 76, 
 reversing 66 Hun, 377, 21 N. Y. Supp. 503. 
 
 127 See Bradfiekl v. Dewell, 48 Mich. 9, 11 N. W. 760; Wende v. 
 Socialer Turn Verein, 66 111. App. 591; cf. Kaspar v. Dawson, supra.
 
 915 INJUNCTION AGAINST NUISANCE. { 534 
 
 to go, even in the strict conduct of his own business. 
 This situation is recognized by equity courts in grant- 
 ing injunctions, with the result that they are gener- 
 ally so framed as to prohibit only that part of the thing 
 complained of which is injurious, saving to the de- 
 fendant the right to continue his business if it can be 
 conducted in a harmless way. "Injunctions against 
 carrying on a legitimate and lawful business should go 
 no further than is absolutely necessary to protect the 
 lawful rights of the parties seeking such injunction. 
 When a person is engaged in carrying on such business, 
 he should not be absolutely prohibited from doing so, 
 unless it appears that the carrying on of such business 
 will necessarily produce the injury complained of. If 
 it can be conducted in such a way as not to constitute 
 a nuisance, then it should be permitted to be contin- 
 ued in that manner."^^^ This result is sometimes 
 reached by inserting in the prohibition such qualify- 
 ing words as "to the injury or damage of the plain- 
 tiff,"^^^ or others of similar nature ;^^'^ sometimes by 
 
 128 Chamberlain v. Douglas, 24 App. Div, 582, 48 N. Y, Supp. 710. 
 
 129 Lingwood v. Stowmarket Co., L. E, 1 Eq. 77, 336; Ulbricht v. 
 Eufaula Water Co., 86 Ala. 587, 11 Am. St. Eep. 72, 6 South. 78, 4 
 L. R. A. 572; Sullivan v. Eoyer, 72 Cal. 248, 1 Am. St. Eep. 51, 13 
 Pac. 655; Snow v. Williams, 16 Hun, 468. See, also, McNenomy v. 
 Baud, 87 Cal. 134, 26 Pac. 795; cf. Earl of Eipon v. Hobart, Cooper 
 temp. Brougham, 333, 343; Miller v. Edison etc. Co. of N. Y., 33 Misc. 
 Eep. 664, 68 N, Y. Supp. 900; Schaub v. Perkinson Bros. Const. Co., 
 108 Mo. App. 122, 82 S. W. 1094. 
 
 130 Winchell v. City of Waukesha, 110 Wis. 101, 84 Am. St. Eep. 
 902, 85 N. W. 668 (injunction against discharging sewage into a river, 
 "unless the same shall have first been so deodorized and purified 
 as not to contain foul, offensive, or noxious matter capable of in- 
 juring the plaintiff or her property or causing nuisance thereto"); 
 York v. Davidson, 39 Or. 81, 65 Pac. 819 (allowing defendants to Im- 
 pound mining debris only "when they shall have adopted and con- 
 structed an efficient and durable system or device for the purpose, 
 such as will meet with the advice and approval of persons skilled 
 in such matters and the court"); cf. City of Grand Eapids v. Weiden.
 
 { 535 EQUITABLE REMEDIES. 916 
 
 giving the defendant leave to apply for a modification 
 of the injunction upon giving satisfactory proof that 
 he can and will conduct his business so as not to 
 amount to a nuisance.^ ^^ Or the court may make a 
 tentative specific order, subject to be modified if ex- 
 perience shows it does not satisfactorily accomplish its 
 purpose.^ ^^ In accordance with the same principle in- 
 junctions will not be issued, it is said, against a busi- 
 ness which is a nuisance, when the nuisance can be rem- 
 edied by the use of scientific appliances; instead the 
 court will direct the introduction of such appliances,^^^ 
 and whenever necessaiy to prevent hardship a reason- 
 able amount of time, in which the defendant may con- 
 form to the injunction, will be allowed.^^* 
 
 § 535. Temporary Injunctions. — The granting of a tem- 
 porary injunction in cases of alleged nuisances does not 
 proceed on different principles from those common to 
 this particular exercise of equity jurisdiction in other 
 cases. Its function is to preseiTe property until dis- 
 puted questions concerning it are settled. A plaintiff 
 
 97 Mich. 82, 56 N. W. 233, in which the court granted an absolute 
 injunction, saying: "A change of method would probably involve 
 large expense in plant, and while it might reduce the evil, would not 
 entirely remove the cause of complaint. An order directing such 
 change would but invite outlay, and leave defendant subject to other 
 proceedings, probably in the near future, to the same end." 
 
 131 Chamberlain v. Douglas, 24 App. Div. 582, 48 N. Y. Supp. 710. 
 
 132 Babcock v. New Jersey Stock Yard Co., 20 N. J. Eq. 296 (in- 
 junction against keeping hogs in a stockyard more than three hours 
 a day; this time to be further shortened if plaintiff was not ade- 
 quately protected by the first order); Northwood v. Barber etc. Co., 
 126 Mich. 284, 8 Det. Leg. N. 1, 85 N. W. 724, 54 L. K. A. 54. 
 
 133 Green v. Lake, 54 Miss. 540, 28 Am. Rep. 378; English v. Prog- 
 ress etc. Co., 95 Ala. 259, 10 South. 134. 
 
 134 Winchell v. City of Waukesha, 110 Wis. 101, 84 Am. St. Rep. 
 902, 85 N. W. 668; Saramons v. City of Gloversville, 34 Misc. Rep. 
 459, 70 N. Y. Supp. 284; Bailey v. City of New York, 38 Misc. Rep. 641, 
 78 N, Y. Supp. 210.
 
 017 INJUNCTION AGAINST NUISANCE. § 535 
 
 who moves for such protection must show a j^^'inia facie 
 case of right in himself ;^^^ otherwise he makes no title 
 in himself to relief of any kind. And, further, since 
 the time for which the injunction is sought is limited 
 to the period necessary for deciding the disputed ques- 
 tions — that is, till the judgment at law or the decree 
 in equity, as the case may be, — it is clear he must show 
 danger of injury occurring within that interval such 
 that the damages recoverable at law would not be an 
 adequate remedy; which means, generally, that he 
 must show danger of irreparable injury.^^^ It is prob- 
 ably because of this that one may lose his right to a 
 temporary injunction by delay in a shorter time than 
 will bar him from procuring a permanent injunction ;^^^ 
 by his delay he shows that he himself did not consider 
 his damage so serious as to require emergency protec- 
 tion. For the same reason, the injunction is denied 
 if the defendant denies all intention to do the acts 
 which the plaintiff alleges will constitute the nuisance 
 
 135 Hilton V. Earl of Granville, 1 Craig & P. 283, 292; Catlin v. 
 Valentine, 9 Paige, 575, 38 Am. Dec. 567; Peck v. Elder, 3 Sandf. 
 126. 
 
 136 Earl of Eipon v. Hobart, 3 Mylne & K. 169, Cooper temp. 
 Brougham, 333, 343; Eeyburn v. Sawyer, 128 N. C. 8, 37 S. E. 954; 
 Chalk V. Wyott, 3 Mer. 688; Mohawk Bridge Co. t. Utica etc. R. 
 R., 6 Paige, 554; Manhattan etc. Co. v. Barker, 7 Rob. (N. Y.) 523; 
 WOson V. Eagleson (Idaho), 71 Pae. 613; Eden v. Firth, 1 H. & M. 
 573; Dana v. Valentine, 5 Met. 8. Although no case has been found 
 repudiating or stating any different principle than this, there is, per- 
 haps, a tendency not to inquire strictly whether the injury likely 
 to happen before the trial or hearing will be irreparable or not. See 
 the following cases: Attorney-General v. Steward, 20 N. J. Eq. 415; 
 Wilsey v. Callanan, 66 Hun, 629, 21 N. Y. Supp. 165; Dimon v. 
 Shewan, 34 Misc. Eep. 72, 69 N. Y. Supp. 402; City of Wilmington 
 V. Addicks (Del. Ch.), 47 Atl. 366. 
 
 137 Attorney-General v. Sheffield etc. Co., 3 De Gex, M. & G. 304; 
 Hilton V. Earl of Granville, 1 Craig & P. 283, 292, 293; Turner v. Mir- 
 field, 34 Beav. 390; Carlisle v. Cooper, 21 N. J. Eq. 576, 591.
 
 § 535 EQUITABLE EEMEDIES. 913 
 
 complained of/^^ though it does not apply if he simply 
 denies that they will amount to a nuisance, that being 
 simply his opinion.^ ^^ It has already been suggested 
 that since temporary injunctions must be granted while 
 the rights of the parties are yet undetermined, and 
 hence, whichever course the court may pursue, a wrong 
 may result, — from granting an injunction against a 
 defendant whose defense may prove good, or from re- 
 fusing it to a plaintiff who may prove to be entitled to 
 it, — therefore the courts should take into account, on 
 applications for such injunctions, the balance of in- 
 jury likely to result from the one or the other of the 
 two courses open, and act accordingly. In the lan- 
 guage of a case from which quotation has been made 
 before: "So far as the 'balance of injury' notion refers 
 to the parties to the litigation .... its legitimate ap- 
 plication is to motions for preliminary injunctions, not 
 to final decrees. Where the question before the court 
 is as to the propriety of stopping a business by prelim- 
 inary injunction upon an ex parte showing, which may 
 or may not be substantiated by further examination of 
 the case in due course, it is very well for the chancellor 
 to take into account the magnitude of the defendant's 
 investment, and compare it with the character of the 
 plaintiff's alleged injury; and if the latter appears tri- 
 fling beside that which would result from the impair- 
 ment of the former, he may well refuse to exercise his 
 power until more fully advised,"^^" and although, as 
 has been seen, all the courts do not agree in limiting 
 
 138 Levy V. Rosenstein, 66 N. T. Supp. 101; affirmed in 56 A pp. 
 Div. 618, 67 N. Y. Supp. 630; Manhattan etc. Co, v. Barker (N. Y.), 
 7 Eob. 523. But see Coker v. Birge, 9 Ga. 425, 54 Am. Dec. 347; f. 
 c, 10 Ga. 326. 
 
 130 Attorney-General v. Cohoes, 6 Paige, 133, 29 Am. Dec. 755; 
 Attorney-General v. Steward, 21 N. J. 340. 
 
 140 Evans v. Eeading etc. Co., 160 Pa. St. 209, 28 Atl. 702,
 
 919 INJUNCTION AGAINST NUISANCE. § 535 
 
 the application of the doctrine as narrowly as this, yet 
 they are all agreed that its application here is a proper 
 one.^^^ It is perhaps nothing more than the effect of 
 this rule that occasions the frequent expressions of cau- 
 tion and reluctance in granting mandatory temporary 
 injunctions.^^^ To order the removal or destruction 
 of an object which is alleged to be or to cause a nui- 
 sance is to compel the defendant generally to lose its 
 value, and whatever labor and expense is necessary to 
 obey the order as well. This is often obviously more 
 than it would be merely to order him not to do some- 
 thing, to refrain, by the injunction; hence the balance 
 in his favor against granting the injunction is by so 
 much increased. This is apparently what Lord Thur- 
 low had in mind in an early case in which he refused 
 to order a ditch filled up on motion saying: "I do not 
 like granting these injunctions on motion. The ditch 
 may be a mile long."^^^ Yet if the plaintiff's case is 
 strong enough to make the balance of injury favorable 
 to him, the courts have from the time of Lord Thurlow 
 himself granted mandatory temporary injunctions in 
 his behalf; the test for granting or refusing it is the 
 same as for prohibitory injunctions, the difference is in 
 the facts. ^^^ 
 
 141 Hilton V. Earl of Granville, 1 Craig & P. 283, 297; Wynstanley 
 V. Lee, 2 Swanst. 333, 335; Eden v. Firth, 1 H. & M. 573; Copper 
 King V. Wabash Min. Co., 114 Fed. 991; Daugherty ete. Co, v. Kit- 
 tanning etc, Co., 178 Pa. St. 215, 35 Atl. 1111; Toyalaek Township v. 
 MonoursviUe etc, Ky. Co., 7 Pa. Dist. Rep. 291; Coe v. Winnipisiogee 
 etc. Co., 37 N. H. 254; Duncan v, Hayes, 22 N. J, Eq. 25; Department 
 of Buildings, City of N. Y. v. Jones, 24 Misc. Eep. 490, 53 N. Y. 
 Supp. 836; Amelia etc, Co. v. Tenn. etc. Co., 123 Fed. 811, 
 
 142 See Blakemore v. Glamorganshire Canal Navigation, 1 Mylne 
 & K. 154, 185; Lord's Exrs. v. Carbon etc. Co., 38 N. J. Eq. 452, 
 459; Herbert v. Pennsylvania R. R. Co., 43 N. J, Eq. 21, 10 Atl, 872. 
 
 143 Anon., 1 Ves. 140. 
 
 144 Mandatory temporary iTi.iiin(^tinns were allowed in the follow- 
 ing cases of nuisance: Robinson v. Lord Byron, 1 Brown C. C. 588;
 
 § 536 EQUITABLE EEMEDIES. 920 
 
 § 536. Complete Relief — While the only ground for 
 coming into equity in cases of nuisance is the right to 
 an injunction, yet a party who has established this jur- 
 isdictional right will be given all the relief, both equi- 
 table and legal in nature, to which his case entitles him. 
 The principle on which this is done is the same that al- 
 ways controls the action of courts of equity, viz., to pre- 
 vent the obvious hardship of compelling a party to 
 seek relief from a single wrong in two suits prosecuted 
 in different courts. Hence, in addition to an injunc- 
 tion, damages for the past nuisance will be awarded. ^^^ 
 And if, after suit is brought and the jurisdiction in 
 equity has attached, the defendant ceases to commit 
 the nuisance, none the less the equity court will give 
 the plaintiff damages and not turn him out of court and 
 compel him to bring another action at law;^^^ and it is 
 
 Hepburn v. Gordon, 2 Hen. & M. 345; Westminster Co. v. Clayton, 
 36 L. J. Ch. 476; Johnson v. Superior Court of Tulare Co., 65 Cal. 
 567, 4 Pac. 575; New Eice Milling Co. v. Komero, 105 La. Ann. 439, 
 29 South. 876. They were refused in Hagen v. Beth, 118 Cal. 330, 50 
 Pac. 425; Village of Keeseville v. Keeseville etc. Co., 59 App. Div. 
 381, 69 N, Y. Supp. 249; People v. People's etc. Co., 32 Misc. Kep. 
 478, 66 N. Y. Supp. 529; Anon., 1 Ves. 140; Blakemore v. Glamorgan- 
 shire Canal Navigation, 1 Mylne & K. 154. See, further, on the sub- 
 ject of preliminary mandatory injunction, post, Vol. II, chapter XXX. 
 
 145 Eoberts v. Vest, 126 Ala. 355, 28 South. 412; Piatt v. City of 
 Waterbury, 72 Conn. 531, 77 Am. St. Eep. 335, 45 AtL 154, 48 L. E. 
 A. 691; Coe v. Winnipisiogee etc. Co., 37 N. H. 254; Lonsdale v. 
 City of Woonsocket, 25 E. I. 428, 56 Atl. 448; Keppel v. Lehigh etc. 
 Co., 9 Pa. Dist. Eep. 219; Eichi v. Chattanooga etc. Co., 105 Tenn. 
 651, 58 S. W. 646; Davis v. Lambertson, 56 Barb. 480; Seaman v, 
 Lee, 10 Hun, 607; Eothery v. New York Eubber Co., 24 Hun, 172; 
 Baker v. McDaniel, 178 Mo. 447, 77 S. W. 531. Contra, Miner 
 V. Nichols, 24 E. I. 199, 52 Atl. 893. See, also. Pom. Eq. Jur., § 237. 
 
 146 Smith V. Ingersoll etc. Co., 7 Misc. Eep. 374, 27 N. Y. Supp. 
 907; Moon v. Nat. etc. Co. of Am., 31 Misc. Eep. 631, 66 N. Y. Supp. 
 33; Whaley v. City of New York, 83 App. Div. 6, 81 N. Y. Supp. 
 1043; McCarthy v. Gaston Eidge Mill & M. Co., 144 Cal. 542, 73 
 Pac. 7. Of course damages will not be allowed if the plaintiflf's 
 right to an injunction at the time of filing his bill is not established :
 
 921 INJUNCTION AGAINST NUISANCE. S 537 
 
 sometimes held that the injunction also will issue even 
 in this case.^^'^ 
 
 § 537. Estoppel, Acquiescence, Laches. — These subjects 
 require no special treatment here, being adequately 
 discussed elsewhere.^^^ An important distinction com- 
 mon to all cases in which an injunction is sought in 
 aid of a legal right is well brought out in the follow- 
 ing quotation from a case in which the maintenance 
 and operation of an elevated street railroad adjacent 
 to the plaintiff's property was sought to be enjoined : 
 "The defendants, failing to establish the bar of the stat- 
 ute of limitations, still insist that the affiliated princi- 
 ple of acquiescence constitutes a defense to the action. 
 There is no foundation in the case for a claim that the 
 plaintiff's conduct amounted to an estoppel, and, in- 
 deed, the claim is not seriously urged by the appellants. 
 It is obvious that such conduct has never led the de- 
 fendants into a line of action which they would not 
 otherwise have pursued, or encouraged them to expend 
 money or make improvements by reason of their re- 
 liance upon the alleged inaction or acquiescence of the 
 plaintiff. They inaugurated their enterprise in the 
 face of persistent opposition by the plaintiff" and other 
 abutting owners, and carried it to completion while 
 earnest efforts were being made to prevent them. The 
 
 Kosenheimer v. Standard etc. Co., 39 App. Div. 482, 57 N. Y. Sup? 
 330. 
 
 147 Dean etc. Chester v. Smelting Corp., 85 L. T. 67. But see 
 Barber v. Penley, [1893] 2 Ch. 447; Carlin v. Wolff (Mo.), 51 S. W. 
 679. See contra, Perry v. Howe Co-op. Creamery Co. (Iowa), 101 N. 
 W. 150 (citing Pom. Eq. Jur., § 1357). In Carlisle v. Cooper, 21 
 N. J. Eq. 576, the defendant partially abated the nuisance after the 
 bill was filed and then insisted that the injunction should be refused 
 because the legal remedy was now adequate, but the point was not al- 
 lowed. 
 
 148 See 2 Pom. Eq. Jur., §§ 816-821; <iiiU\ chapter I.
 
 S 537 EQUITABLE EEMEDIES. 922 
 
 case is entirely destitute of proof showing the existence 
 of any elements of estoppel, and the defendants are, 
 therefore, driven to rely, in this respect upon the mere 
 inaction of the plaintiff to prosecute his claim. But 
 this question, we also think, is governed by authority 
 equally conclusive with that relating to the statute of 
 limitations. The doctrine of acquiescence as a defense 
 to an equity action has been generally limited here to 
 those of an equitable nature exclusively, or to cases 
 where the legal right has expired, or the party has lost 
 his right of property by prescription or adverse pos- 
 session. Whatever may be the rule in other states, it 
 can be said that here no period of inaction merely has 
 been held sufficient to justify a nuisance or trespass, 
 unless it has continued for such length of time as will 
 authorize the presumption of a grant. The principle 
 that so long as the legal right exists the owner is en- 
 titled to maintain his action in equity to restrain vio- 
 lations of this right has been uniformly applied in this 
 court."^^^ 
 
 149 Per Enger, Ch. J., in Galway v. Metropolitan etc. Co., 128 N. 
 Y. 132, 23 N. E. 479, 13 L. R. A, 788. To the same effect are Camp- 
 bell V. Seaman, 63 N. Y. 568, 20 Am. Eep. 567, affirming 2 Thomp. & 
 C. 231; Burden v. Stein, 27 Ala. 104, 62 Am. Dec. 758; Carlisle v. 
 Cooper, 21 N. J. Eq. 576; 2 Pom. Eq. Jur., § 817, at note 2. See Beek- 
 man v. Third Ave. etc. Co., 13 App. Div. 279, 43 N. Y. Supp. 174; 
 Heilman v. Lebanon etc. Co., 175 Pa. St. 188, 34 Atl. 647. The fol- 
 lowing cases contain discussions of such estoppel and acquiescence 
 as will bar a plaintiff's right to enjoin nuisances: Priewe v. Wiscon- 
 sin etc. Co., 103 Wis. 537, 74 Am. St. Eep. 904, 79 N. W. 780; Herr 
 V. Kentucky etc. Asylum, 22 Ky. Law Eep. 1722; Fisk v. City of Hart- 
 ford, 70 Conn. 720, 66 Am. St. Eep. 147, 40 Atl. 906; Clifton Iron 
 Co. V. Dye, 87 Ala. 468, 6 South. 192; Sheldon v. Eockwell, 9 Wis. 
 166, 76 Am. Dec. 265; Townsend v. Epstein, 93 Md. 537, 86 Am. St. 
 Eep. 441, 49 Atl. 629, 52 L. E. A. 409; Stowell v. Tucker, 7 Idaho, 312, 
 62 Pac. 1033; City of Leavenworth v. Douglass, 59 Kan. 416, 53 Pac. 
 123; Pennsylvania etc. Co. v. Montgomery etc. Ey., 167 Pa. St. 62, 
 46 Am. St. Eep. 659, 31 Atl. 468, 36 Wkly. Not. Cas. 153, 27 L. E. A. 
 766; McKee v. City of Grand Eapids (Mich.), 100 N. W. 580.
 
 923 INJU^'CTION AGAINST NUISANCE. $ 533 
 
 . § 538. Parties. — The parties who have a sufficient in- 
 terest to enjoin a nuisance are, in general, those who 
 sustain legal injury. A landlord may do so if the nui- 
 sance is one which will permanently damage the re- 
 version ;^^^ not if it is one that will not do so, and is 
 likely to terminate before the tenancy ends.^°^ A ten- 
 ant may also procure an injunction even when his ten- 
 ancy is very brief or shortly to end,^^^ though there are 
 intimations that he must join the reversioner as a co- 
 plaintiff.^^^ A town has been held entitled to main- 
 tain suit against an obstruction of a highway because 
 of its liability to an action for damages by any person 
 injured by the obstruction.^^* On the other hand, a 
 
 150 Peck V. Elder, 3 Sandf. 126; Faulkenbury v. Wells, 28 Tex. 
 Civ. App. 621, 68 S. W. 327; Shelf er v. London etc. Co., [1895] L. E. 
 
 1 Ch. D. 287. But see Goodall v. Crofton, 33 Ohio St. 271, 31 Am. 
 Rep. 535. 
 
 151 Jones V. Chappel, L. E. 20 Eq. 539; Broder v. Saillard, L. R. 
 
 2 Ch. D. 692; Cooper v. Crabtree, L. E. 20 Ch. D. 589; Matt v. 
 Shoolbred, L. E. 20 Eq. 22. 
 
 152 Boston Ferrule Co. v. Hills, 159 Mass. 147, 34 N. E. 85, 20 L. 
 E. A. 844; Hill v. Schneider, 13 App. Div. 299, 4 N. Y. Ann. Cas. 70, 
 43 N. Y. Supp. 1 (tenancy to expire in less than a year) ; Broder v. 
 Saillard, L. E. 2 Ch. D. 692; Shelfer v. London etc. Co., [1895] 1 Ch. 
 D. 287; Inchbald v. Eobinson, L. E. 4 Ch. 388 (tenant from year to 
 year) ; Jones v. Chappel, L. E. 20 Eq. 539 (tenant from week to week 
 may enjoin — dictum); Bly v. Edison etc. Co., 172 N. Y. 1, 64 N. E. 
 745, 58 L. E. A. 500. See McNulty v. Mt. Morris etc. Co., 172 N. Y, 
 410, 65 N. E. 196, in which a tenant whose term expired pending suit 
 was denied an injunction. 
 
 153 Broder v. Saillard, L. E. 2 Ch. D. 692; Jones v. Chappel, L. R. 
 20 Eq. 539. 
 
 154 Town of Burlington v. Schwarzman, 52 Conn. 181, 52 Am. Eep. 
 571; Waukesha v. Village of Waukesha, 83 Wis. 475, 53 N. W. 675; 
 Pittsburgh v. Epping etc. Co., 194 Pa. St. 318, 45 Atl. 129. See, 
 also, Needham v. New York etc. E. E., 152 Mass. 61, 25 N. E. 
 20; Coast etc. Co. v. Borough of Spring Lake, 56 N. J. Eq. 615, 51 
 L, E. A. 657, 36 Atl. 21; Webb v. City of Demopolis (Ala.), 13 South. 
 289; Tp. of Plymouth v. Chestnut Hill etc. Co., 168 Pa. St. 181, 32 
 /tl. 19; Woodbridge Tp. v. Earitan etc. Co., 64 N. J. Eq. 169, 53 Atl. 
 175.
 
 § 539 EQUITABLE REMEDIES. 924 
 
 county has been enjoined from allowing a nuisance 
 to continue because the remedy by mandamus was in- 
 adequate ;^^'^ and a landowner from permitting a pub- 
 lic nuisance to continue on his land, though he did not 
 cause it himself. ^^® It has also been held that a grantee 
 of one who has been enjoined from a nuisance con- 
 nected with the use of the land, is bound by the in- 
 junction, though not a party to the suit.^^^ That the 
 person committing the nuisance is a tenant, is, of course, 
 no answer to a bill against him,^^^ and the lessor may 
 also in such case be enjoined if he threatens to con- 
 tinue the nuisance after the termination of the ten- 
 ancy 
 
 159 
 
 § 539. Reasonable Use not a Defense. — In this and the 
 two succeeding paragraphs the questions involved are 
 purely legal, having to do with the substantive law of 
 nuisance rather than the equitable remedy. They will 
 require, therefore, no more than a bare statement of 
 the law, with a citation of a few cases in which it has 
 been aj)plied in suits for injunction. It is no defense 
 to an action at law or a bill for an injunction against 
 a nuisance for the defendant to say he is conducting 
 himself reasonably in doing the thing which is com- 
 plained of. "The application of principle governing 
 the jurisdiction of the court in cases of nuisance does 
 not depend on the question whether the defendant is 
 using his own reasonably or otherwise. The real ques- 
 
 155 Lefrois v. Monroe County, 24 App. Div. 421, 48 N. Y. Supp. 
 519. 
 
 156 Attorney-General v. Tod Headley, [1897] 1 Ch. 560. 
 
 157 Ahlers v. Thomas, 24 Nev. 407, 77 Am. St. Eep. 820, 56 Pac 
 93. 
 
 158 Broder v. Saillard, L. R. 2 Cli. D. 692; Attomey-Generml ▼. 
 Props, etc. Canal, L. R. 2 Eq. 71. 
 
 159 Attorney-General v. Props, etc. Canal, L. R. 2 Eq. 71.
 
 925 INJUNCTION AGAINST NUISANCE. § 540 
 
 tion is, does he injure his neighbor?"^ ^" It is perhaps 
 accurate to say, therefore, that there can be no such 
 thing as a nuisance resulting from reasonable conduct. 
 Nuisance is not based on any rule of negligent or will- 
 fully wrongful conduct, but rather on rules of policy 
 which do not allow a person to do those acts which con- 
 stitute nuisances. If he does so, he is not acting reason- 
 ably.^ «^ 
 
 § 54.0. Nor the Fact that Other Causes Contribute. — Nor 
 is it a defense that other persons or other causes than 
 the defendant's wrongful acts contribute to the nui- 
 sance. If the plaintiff wishes to submit to certain nui- 
 !;'.ances, that is no reason for allowing the defendant to 
 impose one on him against his will.^^^ And if the nui- 
 sance results from the combined effect of separate acts 
 of the defendant and others, that also is no defense to 
 a bill for an injunction.^ ^^ 
 
 160 Eeinbardt v. Mentasti, L. E. 42 Ch. D. 685. 
 
 161 Attorney-General v. Cole, [1901] 1 Ch. D. 205; Broder v. Sail- 
 lard, L. R. 2 Ch. D. 692; Callanan v. Gilman, 107 N. Y. 360, 1 Am. 
 St. Eep. 831, 14 N. E. 264; Filson v. Crawford, 23 N. Y. St. Eep. 
 355, 5 N. Y. Supp. 882; Susquehanna etc. Co. v. Malone, 73 Md. 268, 
 25 Am. St. Eep. 595, 20 Atl. 900, 9 L. E. A. 737 (action at law). 
 Contra, Sanders-Clark v. Grosvenor etc., [1900] 2 Ch. D. 373. 
 
 162 Eichards v. Daugherty, 133 Ala. 569, 31 South. 934; Stone V. 
 Eoscommon etc. Co., 59 Mich. 24, 26 N. W. 216; Weston Paper Co. t. 
 Pope, 155 Ind. 394, 57 N. E. 719, 56 L. E. A. 899; Butler v. Village 
 of White Plains, 59 App. Div. 30, 69 N. Y. Supp. 193; Indianapolis 
 etc. Co. V. American etc. Co., 57 Fed. 1000, affirming 53 Fed. 970; 
 Eichmond etc. Co. v, Atlantic etc. Co., 10 E. I. 106, 14 Am. Eep. 658; 
 Jacnbson v. Van Boening, 48 Neb. 80, 48 Am. St. Eep. 684, 66 N. W. 
 993, 32 L. E. A. 229; Pittsburg etc. Co. v. Town of Crothersville, 159 
 Ind. 330, 64 N. E. 914. But see Mackey-Smith v. Crawford, 56 App. 
 Div. 136, 67 N. Y. Supp. 541. 
 
 163 Lamberton v. Mellish, [1894] L. E. 3 Ch. D. 163; People v. Gold 
 Eun etc. Co., 66 Cal. 138, 56 Am. Eep. 80, 4 Pac. 1152. Contra, West 
 etc. Co. V. Moroni etc. Co., 21 Utah, 229, 61 Pac. 16. See Hillman v. 
 Newington, 57 Cal. 56.
 
 §§ 5^1,542 EQUITABLE EEMEDIES. 926 
 
 § 541. Legalized Nuisances. — Acts which at common 
 law are nuisances may be legalized by statute, if such 
 legislation does not amount to the taking or damaging 
 of property forbidden by constitutional provisions.^ ^^ 
 The effect of such statutes is to take away the wrongful 
 character of the acts legalized ; they are no longer torts, 
 and hence, the remedy by injunction against them, of 
 course, ceases,^ ^^ 
 
 § 542. Public Nuisances. — Public nuisances, as a sub- 
 ject of equity jurisdiction, require only a brief dis- 
 cussion in this place, because the equitable doctrines 
 applicable are essentially the same as those applied to 
 private nuisances; and cases to support the text of this 
 chapter have been drawn from both classes without 
 distinction. "It is on the ground of injury to property 
 that the jurisdiction of this court must rest; and tak- 
 ing it to rest upon that ground, the only distinction 
 which seems to me to exist between cases of public nui 
 sance and private nuisance is this, — that in cases of pri- 
 vate nuisance the injury is to individual property, and 
 in cases of public nuisance the injury is to the prop- 
 erty of mankind. I think, therefore, that the same 
 principle must govern the question as to the interfer- 
 ence of the court, whether the case be one of public or 
 of private nuisance. What, then, is the principle by 
 which the court ought to be governed? I take it to be 
 this: whether the extent of the damage and injury be 
 
 164 See Woodruff v. N. Bloomfield etc. Co., 9 Saw. 441, 18 Fed. 753; 
 Le Clercq v. Trustees of Gallipolis, 7 Ohio, 217, 28 Am. Dee. 641. 
 
 165 Jordeson v. Sutton etc. Co., [1898] 2 Ch. D. 614, [3899] 2 Ch. 
 218; Davis v. Mayor of New York, 14 N. Y. (4 Kern) 506, 67 Am. 
 Dec. 186; Hoey v. Gilroy, 129 N. Y. 132, 29 N. E. 85; Sayre v. Mayor 
 etc. of Newark, 60 N. J. Eq. 361, 83 Am. St. Eep. 629, 45 Atl. 985; 
 Grey (Attorney-General) v. Mayor etc. of Patterson, 60 N. J. Eq. 
 385, 83 Am. St. Eep. 642, 45 Atl. 994; McWethy v. Aurora etc. Co., 
 202 ni. 218, 67 N. E. 9.
 
 927 INJUNCTION AGAINST NUISANCE. { 542 
 
 such that the law will not afford an adequate rem- 
 g(jy )n66 Here, too, as in cases of private nuisance, the 
 chief causes of inadequacy lie in the fact that the in- 
 jury is irreparable or will occasion a multiplicity of 
 suits.^^^ If there is a substantial dispute as to fact or 
 law, and the question is in doubt, a trial at law will be 
 required before equity will intervene.^ ^* A purely 
 threatened public nuisance may be enjoined, if it is 
 shown to be imminent and serious.^ ^' Damage will be 
 required or not according as it is, or is not, necessary to 
 
 166 Per Turner, L, J., in Attorney-General v. Sheffield etc. Co., 3 
 De Gex, M. & G. 304. 
 
 167 Suits on behalf of the public: Attorney-General v. Sheffield 
 etc. Co., supra; Attorney-General v. Cambridge etc. Co., 17 Week. 
 Eep. 145, 4 Ch. App. 71; Attorney-General v. Gee, L. E. 10 Eq. 131; 
 Town of Newcastle v, Haywood, 67 N. H. 178, 37 Atl. 1040; State v. 
 Paterson, 14 Tex. Civ. App. 465, 37 S. W. 478; State v. Mayor 
 etc. of Mobile, 5 Port. (Ala) 279, 30 Am. Dec. 564. Suits by 
 private individuals: Kenney v. Consumers' etc. Co., 142 Mass. 
 417, 8 N. E. 138; Attorney-General ^. Sheffield etc. Co., 3 De 
 Gex, M. & G. 804; >!23B t. Board of Freeholders, 13 N. J. Eq. 68; 
 Whaley v. TT'iison, 112 Ala. 627, 20 South. 922, citing 4 Pom, Eq. Jur. 
 5 lo49; Milhau v. Sharp, 27 N. Y. 611, 84 Am. Dec. 314; Georgia 
 Chemical etc. Co. v. Colquitt, 72 Ga. 172; Bigelow v. Hartford Bridge 
 Co., 14 Conn. 565, 579, 36 Am. Dec. 502; Harlan etc. Co. v. Paschall, 
 5 Del. Ch. 435; Van Wegenen v, Cooney, 45 N. J. Eq. 24, 16 Atl. 689. 
 In Milhau v. Sharp, supra, the court said: "To entitle a plaintiff 
 to relief by injunction who is sustaining, or about to sustain a 
 peculiar injury from a public nuisance, it is also necessary that the 
 injury should be such as cannot be well or adequately compensated in 
 damages at law or such as from its continuance or permanent mis- 
 chief must occasion a constantly recurring grievance which cannot 
 be otherwise prevented, but by injunction." For a fuller discus- 
 sion of the grounds of equity jurisdiction, see ante, §§ 514ff, 
 
 168 Mohawk etc. Co. v. Utica etc. Co., 6 Paige, 554; Attorney- 
 General V. Cleaver, 18 Ves. 217; Earl of Eipon v. Hobart, 3 Mylne & 
 K. 169; Attorney-General v. Hunter, 1 Dev. Eq. (16 N. C.) 12. See 
 ante, §§ 519-522. 
 
 169 Attorney-General v. Steward, 20 N. J. Eq. (5 C. E. Green) 415; 
 County -of Yuba v. Cloke, 79 Cal. 239, 21 Pac. 740; City of Eochester 
 V. Eriekson, 46 Barb. 92. See ante, §§ 523-525.
 
 i 542 EQUITABLE EEMEDIES. 928 
 
 maintain an action at law.^'^® All public nuisances are 
 crimes, and so, as before pointed out, the entire juris- 
 diction of equity over them is a denial of the conten- 
 tion that the mere criminality of an act precludes equi- 
 table intervention.^ '^^ Public nuisances may be created 
 by statute,^'^^ and, conversely, common-law public nui- 
 sances may be legalized by statute.^'^^ The balance 
 of injury doctrine is subject to the same differences of 
 holding as in cases of private nuisance.^"^* It is gen- 
 
 170 This statement is subject to the qualifications suggested ante, 
 § 526. In accordance with it are the holdings that purprestures 
 aiay be enjoined, though there is no damage shown, since the state or 
 crown has the right that its property should not be encroached upon: 
 People V. Vanderbilt, 28 N. Y. 396, 84 Am. Dec. 351, affirming 38 
 Barb. 282; Attorney-General v. Cohoes Co., 6 Paige, 133, 29 Am, Dec. 
 755; Attorney-General v. Eau Claire, 37 "Wis. 400; Eevell v. People, 
 177 111. 468, 69 Am. St. Eep. 257, 52 N. E. 1052, 43 L. E. A. 790. See 
 Wood on Nuisances (3d ed.), pp. 107-125. But for a public nuisance 
 generally, actual damage must be^ proved: See People v. Mould, 37 
 App. Div. 35, 55 N. Y. Supp. 453, reversing 24 Misc. Eep, 287, 52 
 N, Y, Supp. 1032, and cases cited: Town of Newcastle v, Haywood, 
 67 N. H. 178, 37 Atl. 1040. See, however, Attorney-General v. 
 Shrewsbury etc. Co., L. E. 21 Ch. D. 752. 
 
 171 See ante, § 527, and note 8. On the general subject, see ante, 
 chapter XXI, 
 
 172 Carleton v. Eugg, 149 Mass. 550, 14 Am. St. Eep. 446, 22 N. E, 
 55, 5 L. E. A, 193 (saloon); State v, Crawford, 28 Kan. 726, 42 Am. 
 Eep. 182 (saloon); State v, Noyes, 30 N. H, 279 (bowling-alley); 
 State v. Marston, 64 N, H, 603, 15 Atl. 222 (saloon); State v. 
 Saunders, 66 N. H. 39, 25 Atl. 588, 18 L. E, A, 646 (saloon); State v. 
 Lawler, 85 Iowa, 564, 52 N. W, 490 (saloon); State v. Seeverson, 88 
 Iowa, 714, 54 N. "W. 347 (saloon); State v, Greenway, 92 Iowa, 472, 
 61 N. W. 239 (saloon); State v. Van Vliet, 92 Iowa, 476, 61 N, W. 
 241 (saloon); Carter v. Steyer, 93 Iowa, 533, 61 N, W. 956; Detroit 
 etc, Co. V, Eldredge, 109 Mich. 371, 67 N. W, 531 (construction of 
 road from other material than that required by statute.) See ante, 
 § 527, and note 101. 
 
 173 Davis V, Mayor etc. N, Y.,14 N. Y, (4 Kern.) 506, 67 Am. 
 Dec. 186; Hoey v. Gilroy, 129 N, Y, 132, 29 N, E. 85; Grey, Attorney- 
 General, V. City of Paterson, 60 N, J. Eq. 385, 83 Am, St, Eep, 642, 
 45 Atl, 995, 48 L. E. A, 717, See ante, § 541, 
 
 174 That it will be applied: Grey, Attorney-General, v. City of
 
 929 INJUNCTION AGAINST NUISANCE. I 542 
 
 erally held that a plaintiff may enjoin a nuisance even 
 though he himself easily could avoid or remove it.^^^ 
 The relief given is adjusted to the needs of the particu- 
 lar case; though usually prohibitive, it may be by man- 
 datory injunction j^'^'^ it will save to the defendant the 
 right to continue. the act complained of in a harmless 
 way if such thing is possible ;^^'^ temporary injunctions 
 are applied here as elsewhere, subject to the general 
 rules governing- their use;^'^^ and complete relief, legal 
 as well as equitable, will be given.^'^^ Inasmuch as a 
 I)rescriptive right to commit a nuisance as against 
 the public cannot arise, the public cannot be pre- 
 cluded by laches at all from procuring an injunc- 
 tion.^^° The parties who may enjoin a public nuisance 
 are, first, the public, through the proper public offi- 
 
 Paterson, 60 N. J. Eq. 385, 83 Am. St. Eep. 642, 45 Atl. 995. 48 L. 
 E. A. 717. That it will not be applied, see the cases cited, ante, § 
 531, note 117. 
 
 175 Town of Burlington v. Schwarzman, 52 Conn. 181, 52 Am, Kep. 
 571; Martin v. Marks, 154 Ind. 549, 57 N. E. 249. 
 
 176 Pascagoula etc. Co. v. Dixon, 77 Miss. 587 78 Am. St. Kep. 
 537, 28 South. 724. See, also, cases cited a7ite, § 543, note 125. 
 
 177 Earl of Eipon v. Hobart, 3 Mylne & K. 169; Wiuchell v. City of 
 Waukesha, 110 Wis. 101, 84 Am. St. Eep. 902, 85 N. W. 668. 
 
 178 Earl of Eipon v. Hobart, 3 Mylne & K. 169, Cooper temp^ 
 Brougham, 333; Attorney-General v. Steward, 20 N. J. Eq. 415; City 
 of Wilmington v. Addicks (Del. Ch.), 47 Atl. 366; Attorney-General 
 V. Sheffield etc. Co., 3 De Gex, M. & G. 304; Attorney-General v. 
 Cohoes, 6 Paige, 133, 29 Am. Dec. 755; Attorney-General v. Steward, 
 21 N. J. Eq. 340, See ante, § 535. 
 
 179 Eichi V. Chattanooga etc. Co., 105 Tenn. 651, 58 S. W. 646. 
 
 180 People V. Gold Eun etc. Co., 66 Cal. 138, 56 Am. Eep. 80, 4 Pac. 
 1152. And it is held that the same doctrine applies to suits by 
 private individuals who are specially damaged: Mills v. Hall, 9 
 Wend. 315, 24 Am, Dec. 160; Woodruff v. N. Bloomfield etc. Co., 9 
 Saw. 513, 18 Fed. 753; Bowen v. Wendt, 103 Cal. 236, 37 Pac 149. 
 See Clerk & Lindsell, The Law of Torts, pp. 349, 350. 
 
 Equitable Eemedies, Vol. I — 59
 
 § 542 EQUITABLE REMEDIES. 930 
 
 cial;^^^ second, private parties. While the public which 
 acts is generally the state, yet by virtue of legislative 
 delegation, often implied, it may be a municipality that 
 files the information.^^2 Public nuisances may also be 
 enjoined by private individuals who suffer a special 
 damage. ^^^ 
 
 181 "In the case of a public nuisance, the remedy at law is in- 
 dictment; the remedy in equity, is information at the suit of the 
 attorney-general": Per Cranworth, V. C, in Soltau v. De Held, 2 
 Sim, N. S., 133. No citation of cases is necessary to sustain so 
 familiar a rule. 
 
 182 Town of Neshkoro v. Nest, 85 Wis. 126, 55 N. W. 176; Clayton 
 County V. Herwig, 100 Iowa, 631, 69 N. W. 1035; Village of Buffalo 
 V. Harling, 50 Minn. 551, 52 N. W. 931; City of Huron v. Bank of 
 Volga, 8 S. Dak. 449, 66 N. W. 815; City of Mt. Clemens v. Mt. 
 Clemens etc. Co., 8 Det. Leg. N. 282, 127 Mich. 115, 86 N. W, 537; 
 People V. Equity etc. Co., 141 N. Y. 232, 36 N. E. 194; Village of 
 Pewaukee v. Savoy, 103 Wis. 271, 79 N. W. 436, 50 L. E. A. 836. In 
 Village of Oxford v. Willoughby (N. Y.), 73 N. E. 677, a village 
 was allowed to maintain the action. The right of towns to enjoin 
 public nuisances is sometimes put upon the ground that their special 
 interest entitles them to maintain action because of special damage 
 to them. See supra, § 538, note 154. Other cases of injunction 
 against public nuisances at the suit of the public are: Penn- 
 sylvania V. Wheeling etc. Co., 13 How. 518, 14 L. ed. 249; Attorney- 
 General V. Brighton, [1900] 1 Ch. 276; Morris etc. Co. v. Green- 
 ville (N. J.), 46 Atl. 638; Streeter v. Stalnaker, 61 Neb. 205, 85 
 N. W. 47; People v. Third Ave. E. E., 45 Barb. 68; United States 
 V. Debs, 64 Fed. 724; State v. Meek, 112 Iowa, 338, 84 Am. St. Eep. 
 342, 84 N. W. 3, 51 L. E. A. 414; Coosaw Min. Co. v. South Caro- 
 lina, 144 U. S. 564, 12 Sup. Ct. 689, 36 L. ed. 537; United States 
 V. N. Bloomfield etc. Co., 53 Fed. 625; Berks County v. Heading 
 City etc. Co., 167 Pa. St. 102, 31 Atl. 474, 36 Wkly. Not. Cas. 173; 
 Citv of Detroit v. Detroit City etc. Co., 56 Fed. 867; Grey v. New 
 York etc. Co., 56 N. J. Eq. 463, 40 Atl, 21; Allegheny City v. Millville 
 etc. Co., 159 Pa. St. 411, 28 Atl. 202. 
 
 183 Injunctions were allowed on this ground in the following cases: 
 For obstruction of streets and highways: Savannah etc. Co. Y.ShieU, 
 
 33 Ga, 601; Hill v. Hoffman (Tenn. Ch. App.), 58 S. W. 929; Petti- 
 bone v. Hamilton, 40 Wis. 402; Martin v. Marks, 154 Ind. 549, 57 N. 
 E. 249- Green v. Oakes, 17 111. 249; Ewell v. Greenwood, 26 Iowa, 377; 
 Smith v. Mitchell, 21 Wash. 586, 75 Am. St. Eep. 858, 58 Pac. 667; 
 Flynn v. Taylor, 127 N. Y. 596, 28 .N. E. 418, 14 L. E. A. 556;
 
 931 INJUNCTION AGAINST NUISANCE. { 542 
 
 D6 Witt V. Yan Schoyk, 110 N. Y. 7, 6 Am. St. Eep. 342, 17 N. E. 425, 
 affirming 35 Hun, 103; Stevenson v. Pucci, 32 Misc. Kep. 464, 66 N. 
 Y. Supp, 712; Cabbell v. Williams, 127 Ala. 320, 28 South. 405; New- 
 come V. Crews, 98 Ky. 339, 32 S. W. 947; Brauer v. Baltimore etc. Co., 
 99 Md. 367, 58 Atl. 21; Thompson v, Maloney, 199 111. 276, 93 Am. St. 
 Eep. 183, 65 N. E. 237; Cereghino v. Or. etc. Co., 26 Utah, 467, 
 99 Am. St. Eep. 843, 73 Pac. 634; Pence v. Bryant, 54 W. Va. 
 263, 46 S. E. 275; Illinois Cent. etc. Co, v. Thomas, 75 Miss. 54, 
 21 South. 601, Central etc. Co. v. Metropolitan etc. Co., 16 App. 
 Div. 229, 44 N. Y. Supp. 752; Hannum v. Media etc. Co., 200 Pa. 
 St. 44, 49 Atl. 789; Irvine v. Atlantic etc. Co., 42 N. Y. Supp. 
 1103; City etc. of Montgomery v. Parker, 114 Ala. 118, 62 Am. 
 St. Eep. 95, 21 South. 452; Longworth v. Sedevic, 165 Mo. 221, 65 
 S. W. 260; Sherlock v. Kansas etc. Co., 142 Mo. 172, 64 Am. St. Eep. 
 551, 43 S. W. 629; Kalteyer v. Sullivan, 18 Tex. Civ. App. 488, 46 
 S. W. 288; Pittsburgh etc. Co. v. Point Bridge Co., 165 Pa. St. 37, 
 30 Atl. 511, 35 Wkly. Not. Cas. 393, 26 L. E. A. 323. See, also, 
 Dean v. Ann Arbor E. E. (Mich.), 100 N. W. 773; Forbes 
 v. City of Detroit (Mich.), 102 N. W. 740 (encroachment on 
 street). 
 
 For obstruction of navigable waters: Milnor v. N. G. E. Co., 70 U. 
 S. (3 WaU.) 782, 16 L. ed. 1; Morris v. Graham, 16 Wash. 343, 53 
 Am. St. Eep. 33, 47 Pac. 752; Mayor etc. of New York v. Baum- 
 berger, 7 Eob. (N. Y.) 219; Walker v. Sheperdson, 2 Wis. 384, 60 
 Am. Dec. 423; Eeyburn v. Sawyer, 135 N. C. 328, 102 Am. St. Eep. 
 555, 47 S. E. 761. 
 
 For pollution of water: Green v. Nunnemacher, 36 Wis. 50. 
 
 For flowaye of land: Whitfield v. Eogers, 26 Miss. 84, 59 Am. Dec. 
 244. 
 
 For keeping a bawdy-house; Cranford v. Tyrrell, 128 N. Y. 341, 28 
 N. E. 514, affirming 59 Hun, 618, 13 N. Y. Supp. 951; Dempsie v. 
 Darling (Wash.), 81 Pac. 152. 
 
 For interference with common right of fishery: Cherry Point Fish Co. 
 v. Nelson, 25 Wash. 558, 7 Pac. 55. 
 
 For creating a stench: Sayre v. Mayor etc. of Newark, 58 N. J. Eq. 
 136, 42 Atl. 1068; Wilcox v. Henry (Wash.), 77 Pac. 1055 (odors from 
 slaughter-house) . 
 
 Statutory nuisance: Kaufman v. Stein, 138 Ind. 49, 46 Am. St. Eep. 
 368, 37 N. E. 333 (wooden building within fire limits). Compare 
 Lang v. Merwin (Me.), 59 Atl. 1021 (injunction against gambling 
 place, at suit of twenty voters, under statute). 
 
 Beer garden: Tron v. Lewis, 31 Ind. App. 178, 66 N. E. 490. 
 
 Sunday ball games: Gilbaugh v. West etc. Co., 64 N. J. Eq. 27, 53 
 Atl. 289; Seastream v. New Jersey Exhibition Co. (N. J. Eq.), 58 
 Atl. 532.
 
 § 542 EQUITABLE REMEDIES. 932 
 
 In the following cases injunctions were refused because the plaintiff 
 failed to show special damage: Taylor v. Portsmouth etc. Co., 93 Me. 
 193, 64 Am. St. Eep. 216, 39 Atl. 560; Buck etc. Co. v. Lehigh etc. 
 Co., 50 Pa. St. 91, 88 Am. Dec. 534; Pearson v. Allen, 151 Mass. 79, 
 
 21 Am. St. Eep. 426, 23 N. E. 731; Schall v. Nusbaum, 56 Md. 512; 
 Osborne v. Brooklyn etc. Co., 5 Blatchf. 366; Currier v. Davis, 68 
 N. H. 596, 41 Atl. 239; Gulick v. Eisher, 92 Md. 353, 48 Atl. 375; 
 Van Wegenen v. Coouey, 45 N. J. Eq, 24, 16 Atl. 689; Black v. 
 Philadelphia etc. Co., 58 Pa. St. 249; Bosworth v. Normon, 14 E. 1. 
 521; Georgetown v. Alexandria etc, Co., 12 Pet. 91, 9 L. ed. 1012; 
 Bigelow V. Hartford etc. Co., 14 Conn. 565, 36 Am. Dec. 502; O'Brien 
 V, Harris, 105 Ga. 732, 31 S. E. 745; Coast Line R. E. v, Cohen, 50 Ga. 
 451; Hay v. Weber, 79 Wis. 587, 24 Am. St. Eep. 737, 48 N. W. 859; 
 Hartshorn v. South Eeading, 3 Allen, 501; Pittsburg etc. Co. v. 
 Cheevers, 149 111. 430, 37 N. E. 49, 24 L. R. A. 156; Manufacturers 
 etc. Co. V. Indiana etc. Co., 155 Ind. 566, 58 N. E. 851; Ehynier v. 
 Fretz, 206 Pa. St. 230, 98 Am. St. Rep. 777, 55 Atl. 959; Parsons v. 
 Hunt (Tex. Civ. App.), 81 S. W. 120. See, also, Dennis v. Mobile & 
 M. R. Co., 137 Ala. 649, 97 Am. St. Eep. 69, 35 South. 30 (citing 
 Pom. Eq. Jur., §§ 1347, 1349, 1350); George v. Peckham (Neb.), 103 
 N. W. 664. 
 
 In Whitfield v. Rogers, 26 Miss. (4 Cush.) 84, 59 Am. Dec. 244, it 
 is said that one who suffers from a public nuisance in common with 
 others may enjoin it without showing special damage. And the same 
 thing was held under statutes in Milhiser v. Willard, 96 Iowa, 327, 
 65 N. W. 325; Carleton v. Rugg, 149 Mass. 550, 14 Am. St. Rep. 446, 
 
 22 N. E. 55, 5 L. K. A. 193. 
 
 On the general subject of public nuisances, see, also, ante, chaptei 
 XXI,
 
 ,4/' 
 
 (fu
 
 OF LAW LIBRARY 
 ITY 6F CALIFORNIA 
 
 .OS ANGELES
 
 SOUTHERN REGIONAL LIBRARY fACIUTY 
 
 AA 000 850 961 4