THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 A. TREATISE 
 
 ON 
 
 THE LAW RELATING TO 
 
 INJUNCTIONS 
 
 By HOWARD C. JOYCE, 
 
 OF NF-W YORK CITY. 
 
 IN THREE VOLUMES 
 VOL. I. 
 
 ALBANY, N. Y. 
 
 MATTHEW BENDER & COMPANY. 
 
 1909.
 
 T 
 
 COPYRIGHT, 1909, 
 
 Bt MATTHEW BENDER & COMPANY.
 
 PREFACE. 
 
 The purpose of the author in this work has been to present to 
 the profession a complete treatise upon the law relating to injunc- 
 tions, stating and applying the principles controlling the granting 
 of such relief in all cases and fully covering the modern phases 
 of the subject. 
 
 Matters which are especially live subjects of the day, such as 
 strikes, boycotts, conspiracies, monopolies, contracts in restraint 
 of trade, State and Municipal regulation of rates, revocation of 
 licenses and franchises, and the powers and duties of police of- 
 ficials have been considered at length. 
 
 In the statement of rules and principles the author has 
 endeavored both to give a citation in support thereof from each 
 State so as to furnish the lawyer using the work with a citation 
 from his own State if possible, and also to illustrate by particular 
 decisions the application of such rules. 
 
 In the preparation of this treatise the author has in many 
 instances embodied matter contained in Mr. Beach's treatise upon 
 this subject, for which aid he wishes to extend his thanks to the 
 publishers. 
 
 Trusting that the work may be of value to the profession, it is 
 respectfully submitted to their consideration. 
 
 HOWARD C. JOYCE. 
 
 New Yokk, March 1, 1909. 
 
 67S15? 
 
 LAW
 
 TABLE OF CONTENTS 
 
 VOLUME I 
 
 CHAPTER I. 
 
 Definition and Nature of Injunctions. 
 
 Section 1. Injunctions defined. 
 
 2. Injunctions further defined and described— Their flexibility. 
 2a. Object and purpose of writ or order. 
 
 3. Injunctions as in personam— Compared with attachments. 
 
 4. Parties' agreement operating as injunction. 
 
 5. Injunctions as affected by statute. 
 
 6. Injunction and receiver. 
 
 7. Injunctions as related to specific performance. 
 8 Injunction in aid of attachments. 
 
 9. Injunction compared with mandamus, certiorari and quo war- 
 ranto. 
 9a. Injunction and prohibition compared. 
 
 10. Injunction and damages in the same action. 
 
 11. Damages in lieu of injunction. 
 
 12. Damages in lieu of injunction— Lord Cairn's Act. 
 
 13. No private injunction to protect public rights. 
 13a. Same subject— Rule illustrated. 
 
 14. Clean hands. 
 
 15. Same subject— Patent causes. 
 
 16. Same subject— Where injunction an evasion of just dues. 
 
 17. Imminent injury as ground of injunctive relief. 
 
 18. Same subject— The Tennessee rule. 
 
 19. Same subject— Where plaintiff not harmed. 
 
 20. Clear violation of plaintiff's right— Balancing equities. 
 
 21. Where plaintiff's rights are doubtful. 
 
 22. Same subject — Patent causes. 
 
 23. Same subjects-Unsettled questions of law. 
 
 24. Same subject— Trifling grievances. 
 
 25. Balance of convenience in doubtful cases. 
 
 26. Adequacy of legal remedy— General rule. 
 
 26a. Adequacy of legal remedy— What essential to. 
 26b. Adequacy of legal remedy— Application of rule. 
 
 27. The same subject. 
 
 28. Same subject— Further illustrations. 
 
 (vii)
 
 viii Table of Contents. 
 
 Section 29. Same subject — Certiorari and appeal. 
 
 30. Injunction not granted where mandamus is appropriate. 
 
 31. Where legal remedy inadequate. 
 
 32. Adequate remedy in Federal courts. 
 
 33. Enjoining trespass and nuisance though legal remedy exists. 
 
 34. Where a party has a remedy by his own act. 
 
 35. Irreparable injury to be threatened — Injunction to prevent. 
 
 36. Irreparable injury — What is. 
 
 37. Rules illustrated generally. 
 
 38. Same subject — Public taking of private property. 
 
 39. Threatened injury — Must be irreparable. 
 39a. Same subject — Application of rule. 
 39b. Same subject — Abating liquor nuisance. 
 
 40. Same subject — Exceptions. 
 
 41. No injunction for past acts. 
 
 41a. Same subject — Application of rule. 
 
 42. Laches and acquiescence — General rule. 
 42a. Laches and acquiescence — Rule illustrated. 
 
 43. Same subject — When laches no defense. 
 
 44. Same subject — In England. 
 
 45. Injunctions in foreign countries. 
 
 46. Effect of injunctions on statute of limitations. 
 
 CHAPTER II. 
 Jurisdiction. 
 
 Section 47. Assuming injunctive jurisdiction. 
 
 47a. Same subject — Where no power to enforce. 
 
 47b. Jurisdiction limited by Constitution or statute. 
 
 48. Declining jurisdiction where the Legislature should act. 
 
 49. Equity jurisdiction not extended by combining law and equity. 
 
 50. Injunctive jurisdiction where property rights not threatened. 
 
 51. Ousting of jurisdiction. 
 
 51a. Same subject — Effect of completion of act sought to be enjoined. 
 51b. Prohibition to prevent erroneous exercise of jurisdiction will 
 not lie. 
 
 52. Objection to jurisdiction, when to be made. 
 
 53. No injunctive jurisdiction where controversy submitted. 
 
 54. Limited injunctive jurisdiction of public officers. 
 
 55. Same subject. 
 
 56. No State jurisdiction of patent infringements. 
 
 57. Peculiar jurisdiction of trusts, waste, etc. 
 
 58. No injunctive jurisdiction of criminal matters. 
 
 59. Same subject. 
 
 60. Same subject — Illegal ordinance or statute. 
 60a. Same subject — Qualification of rule. 
 
 61. Injunctive jurisdiction of courts of last resort. 
 
 62. Same subject.
 
 Table of Contents. ix 
 
 Section 63. Of Supreme Court of New York. 
 
 64. Of Superior and City Courts. 
 
 65. Of Circuit Courts. 
 
 66. Of District Courts. 
 66a. Of County Courts. 
 
 67. Of Courts of Common Pleas. 
 
 68. Of Probate Courts— Of Surrogates. 
 68a. Of court commissioners. 
 
 68b. Statutory provisions of a general character. 
 
 69. Conditional and auxiliary jurisdiction. 
 
 70. Jurisdiction in vacation. 
 
 71. Jurisdiction at chambers. 
 
 72. Trial court's jurisdiction pending appeal. 
 
 73. Jurisdiction of the High Court of Justice. 
 
 74. Jurisdiction of Quebec courts— Of British Columbia eourts. 
 
 75. Extra-territorial jurisdiction. 
 
 75a. Same subject— Jurisdiction dependent on location of subject 
 matter. 
 
 76. Same subject — Receivers. 
 
 77. Same subject — Exceptions. 
 
 77a. Same subject — Exceptions continued. 
 
 78. Same subject illustrated in Alabama. 
 
 79. Same subject — Interstate comity. 
 ' . 80. Same subject — English chancery. 
 
 81. Comity of New York chancery. 
 
 82. Jurisdiction of non-resident's personalty. 
 
 83. Non-interference with courts of concurrent jurisdiction. 
 
 84. State courts versus Federal. 
 
 85. Same subject — Court first acquiring jurisdiction. 
 
 86. Federal comity towards State courts. 
 
 87. Federal jurisdiction independent ofi State laws and practice. 
 
 88. Federal injunction of proceedings in State eourts. 
 
 89. Same subject — Where suits not begun in State court. 
 
 90. Federal jurisdiction to enjoin national banks. 
 
 91. Jurisdiction of patent infringements. 
 
 92. Exclusive Federal jurisdiction of equitable maritime cases. 
 
 93. Ancillary jurisdiction of the Federal courts. 
 
 94. Jurisdiction according to value in dispute. 
 
 95. Injunctive jurisdiction of Territorial courts. 
 
 96. Jurisdiction of perpetual injunctions. 
 
 CHAPTER III. 
 
 Classification and Form. 
 
 SECTION 97. Preventive and mandatory. 
 
 97a. Mandatory injunctions — Rules as to granting generally. 
 
 98. Mandatory injunctions — Requisites of. 
 
 99. Same subject — In New Jersey.
 
 x Table of Contents. 
 
 ■ • '5v ' 
 
 Section 100. Same subject — In New York and other States. 
 
 101. Mandatory injunctions more favored than formerly. 
 
 102. The effectiveness of mandatory injunctions. 
 
 103. Relief by mandatory injunction — Illustrations. 
 
 104. Same subject — Illustrations continued. 
 
 105. Common and special injunctions — Common abolished. 
 105a. Soecial injunctions further considered. 
 
 106. Prerogative writs of injunction. 
 
 107. Perpetual and preliminary injunctions. 
 
 108. Perpetual injunctions further considered. 
 
 109. Interlocutory or temporary injunctions. 
 109a. Same subject — Object of. 
 
 109b. Pieliminary injunctions further considered. 
 
 110. Same subject. 
 
 110a. Injunction by order in New York. 
 
 111. Interim restraining orders generally. 
 
 Ilia. Interim restraining orders in particular jurisdictions. 
 
 112. Invalid preliminary injunctions. 
 
 113. Injunction against plaintiff. 
 
 114. Form and contents of injunction order. 
 
 115. Injunction order to be specific. 
 
 116. Setting and correcting form of permanent injunction. 
 
 CHAPTER IV. 
 
 The Granting of Injunctions; Application; Notice; 
 
 See vice. 
 
 Section 117. Judicial discretion in respect to injunction. 
 
 118. Sound discretion considered. 
 
 119. Discretion as affected by statutes. 
 
 120. No discretion in cases of torts. 
 
 121. Abuse of discretion in granting injunctions. 
 
 122. Discretion not to be forced by mandamus. 
 
 123. Continuance of injunctions. 
 
 124. Notice of application — Necessity of. 
 
 125. Same subject continued. 
 
 126. Same subject — Rule in New York. 
 
 126a. Same subject — Where injunction operates to suspend general 
 
 business of corporation. 
 126b. Same subject — Statutes as to length of time for which notice 
 
 must be given. 
 126c. Same subject — Waiver of notice. 
 126d. Same subject — Qualification of rule — Statutes. 
 
 127. Notice — Perpetual injunctions. 
 
 128. Application on what made. 
 
 129. Same subject — Federal practice. 
 
 130. Motions for temporary injunction. 
 
 131. New York injunctions formerly on petition.
 
 Table of Contents. xi 
 
 Section 132. Special prayer for injunction. 
 
 133. Temporary injunction pending an action for a permanent. 
 
 134. Temporary injunction for extrinsic cause. 
 
 135. Same subject. 
 
 136. Affidavits. 
 
 137. Conflicting affidavits, etc. 
 
 138. Substitute for affidavits. 
 
 139. Additional evidence; — secondary evidence. 
 
 140. Granting injunction before bill filed. 
 
 141. Same subject. 
 
 142. Same subject — Alabama rule. 
 
 143. Granting injunction on bill filed— Chancery practice. 
 143a. Where answer denies facts alleged in bill. 
 
 144. Granting injunction in spite of answer. 
 
 145. Verification of bill. 
 
 146. Verification of bill in New Jersey. 
 
 147. Same subject — Maryland rule. 
 
 148. Verification in Georgia and South Carolina. 
 
 149. Verification — Federal practice. 
 
 150. Allegations on information and belief. 
 
 151. Service of injunction. 
 
 151a. Party enjoined out of State — Mode of service. 
 
 152. Subpoenas — Service of. 
 152a. Substituted service. 
 
 153. Temporary injunctions by whom granted. 
 
 154. Granting on Sunday and holidays or in vacation. 
 
 155. Second injunctions. 
 
 156. Injunction against parties only — Exception. 
 
 157. Subsequent applications — Bar to. 
 
 CHAPTER V. 
 
 Injunction Bond and Actions on it. 
 
 Section 158. History of injunction bonds. 
 
 159. Same subject in England. 
 159a. Object of injunction bond. 
 
 160. Cases when bond not required — Discretion as to. 
 
 161. Requiring bonds — Discretion as to. 
 
 162. Same subject in Maryland. 
 
 163. Bond as condition precedent to injunction. 
 
 164. Same subject. 
 
 165. Where enforcement of judgments enjoined— In New York. 
 
 166. Same subject. — In Iowa. 
 
 167. Same subject — In Arkansas — In Illinois. 
 
 168. Same subject — In New Jersey. 
 
 168a. Bond having force and effect of judgment — Statutes. 
 
 169. Additional bond or security. 
 
 170. Construction of bond.
 
 xii Table of Contents. 
 
 Section 171. Same subject. 
 
 172. Construction of bond continued. 
 
 172a. Necessity of compliance with statute. 
 172b. Effect of errors and omissions in bond. 
 
 173. Execution of injunction bond by applicant. 
 
 174. Enforcing State bond in federal courts. 
 
 175. Bond essential to recovery of injunction damages. 
 
 176. Same subject. — In Minnesota, Kentucky, Pennsylvania. 
 
 176a. Action on bond as effected by malice — Want of probable cause. 
 
 177. Action for damages on bond — When accrues. 
 177a. Same subject — Evidence — Burden of proof. 
 
 178. Same subject — Evidence of damage. 
 
 179. Breach of condition of bond. 
 
 180. Breach of bond further considered. 
 
 181. Same subject — In Alabama and Ohio. 
 
 182. Same subject — In Kentucky, California, Iowa and Maine. 
 
 183. Venue — Action pending an appeal. 
 
 184. Parties to actions on injunction bonds — Nominal parties. 
 184a. Parties plaintiff continued. 
 
 185. Parties plaintiff concluded. 
 
 186. Requisites of bond as basis of action. 
 
 187. Complaint on injunction bond — Demurrer. 
 
 188. Same subject. 
 
 189. Allegations of special damage. 
 189a. Effect of plea or answer. 
 189b. Defenses — Generally. 
 
 189c. Defenses — Want of jurisdiction. 
 189d. Presumptions. 
 
 CHAPTER VI. 
 
 Damages. 
 
 Section 190. Only actual damages recoverable on bond. 
 
 191. Only Damages caused by injunction. 
 191a. Same subject — Remote damages. 
 191b. Nominal damages. 
 
 191c. Amount recoverable on bond limited by penalty of. 
 
 192. Enjoinee's duty to avert damages. 
 
 193. Damages to stockholders 
 
 194. Wages and current expenses as damages. 
 
 195. Depreciation of value as damages. 
 
 196. Interest when allowed as damages. 
 
 197. Rents as damages — Injunction against asserting ownership. 
 
 198. Loss of profits as damages. 
 
 199. Loss of profits sometimes allowed. 
 
 200. Loss of time and anxiety — Damnum absque injuria. 
 
 201. Exemplary damages not recoverable. 
 
 202. Damages accruing after final decree.
 
 Table of Contents. xiii 
 
 Section 203. Counsel fee on dissolusion of injunction. 
 
 204. Counsel fees — Recovery of continued. 
 
 205. Counsel fees where injunction only relief sought. 
 
 206. Counsel fees where injunction ancillary to principal relief. 
 
 207. Counsel fees incurred generally in case. 
 
 208. Counsel fees — Where not paid. 
 
 209. Counsel fees — Assignment to attorney of claim for. 
 
 210. Jurisdictions where counsel fees not recoverable. 
 
 210a. Counsel fees — Where federal bond sued in State court. 
 210b. Where injunction expenses blended with those of suit. 
 
 211. Costs of reference as damages. 
 211a. Asessment of damages — Generally. 
 
 212. Assessing damages — In Kentucky. Alabama. Iowa, Mississippi, 
 
 Missouri. 
 
 213. In Maine and Minnesota. 
 
 214. Assessment of damages in Illinois — Suggestion when required. 
 
 215. Continued in Illinois. 
 
 216. In New York and New Hampshire. 
 
 217. In Louisiana. 
 
 2 IS. Motion to assess damages — Joinder of movants — Apportion- 
 ment. 
 
 219. Federal practice as to determining damages. 
 
 220. English inquiry as to damages. 
 
 221. Assessing damages on partial dissolution of injunction. 
 
 222. Reference to ascertain damages. 
 
 223. Same subject. 
 
 224. Reference in Wisconsin. 
 
 225. Review and correction of referee's report. 
 
 226. Reference in case of appeal. 
 226a. Pleadings. 
 
 226b. Evidence and burden of proof. 
 226c. When prescription begins to run. 
 
 CHAPTER VII. 
 
 Liability of Sureties. 
 
 Section 227. Sureties' liability is stricti juris. 
 
 227a. Same subject — Application of rule. 
 
 228. Same subject continued. 
 
 229. Same subject — Bond conditioned to pay damages sustained. 
 
 230. Enlarging sureties' liability by the parties. 
 
 231. Extent of sureties' liability. 
 
 232. Sureties' liability for defendant's loss of profits, etc. 
 223. Sureties' liability on joint bonds. 
 
 234. Bonds as joint or several. 
 
 235. Sureties when bound by decree though not parties. 
 
 236. Suing principal before surety. 
 
 237. Release of surety — Defenses.
 
 xiv Table of Contents. 
 
 Section 23S. Sureties' obligations construed. 
 
 239. Same subject. 
 
 240. Awarding damages against sureties in original action. 
 
 241. Same subject — In Arkansas. 
 
 242. Same subject — In Louisiana. 
 
 243. Same subject — In Louisiana continued. 
 
 244. Same subject — In New York. 
 
 245. Same subject — In South Carolina, Missouri, Texas. 
 
 CHAPTER VIII. 
 
 Violations and Punishment of. 
 
 Section 246. Void injunction need not be obeyed — If collusive. 
 
 247. Must be obeyed, though irregular. 
 
 248. Violation though no service — Knowledge enough. 
 248a. Same subject — Application of rule. 
 
 249. Excuse of violation. 
 
 250. Same subject continued — Effect of dissolution. 
 250a. Same subject — Effect of modification of injunction. 
 
 251. What constitutes violation. 
 
 252. Same subject — Injunction to protect right of way. 
 
 253. Same subject — Prior acts — Changed situation. 
 
 254. Same subject — Illustrations. 
 254a. Where injunction conditional. 
 
 255. Violation of patent injunctions. 
 
 256. Violation by parties — Generally. 
 256a. Violation by complainant. 
 256b. Violation by one not a party. 
 
 257. Violation by agents and servants. 
 
 258. Same subject — Violation by attorneys. 
 
 259. Violation excused. 
 
 260. Obeying injunction as far as clear — Changed situation. 
 
 261. Violation after determined by scope of terms. 
 
 262. Contempt proceedings to punish violations. 
 
 263. Same subject continued. 
 
 264. Collateral attack of injunction in contempt proceedings. 
 
 265. Punishment in Iowa. 
 
 266. Who may institute contempt proceedings — Estoppel. 
 
 267. Delay in punishing for contempt. 
 
 268. Who punishable for contempt. 
 
 269. Landlord and tenant — Husband and wife. 
 
 270. Party punishable on notice. 
 270a. Facts in mitigation. 
 
 271. Motive, intent or belief as excuse. 
 
 272. Disclaimer of contempt as excuse or in mitigation. 
 
 273. Advice of counsel as an excuse. 
 -7 1. Contempt .of receiver. 
 
 B75. Punishing contempl in supplementary proceedings.
 
 Table of Contents. xv 
 
 SECTION 275a. Violations by corporations — Officers and employees. 
 
 276. Contempt proceedings against corporations — Affidavits. 
 276a. Injunction against partnership; — Violations of. 
 
 277. Who can punish violations. 
 
 278. Punishment in Federal courts. 
 
 279. In England. 
 
 279a. Payment of damages. 
 
 280. Indemnity fine for contempt — New York. 
 280a. Same subject continued. 
 
 281. Punishing contempt by annulling what has been done. 
 281a. Compelling restoration of status. 
 
 282. Party in contempt not entitled to jury. 
 
 283. Violation as contempt pending appeal. 
 283a. Same subject continued. 
 
 284. Appeals from orders in contempt proceedings. 
 284a. Judgment — Recital of facts in. 
 
 CHAPTER IX. 
 
 Dissolution. 
 
 Section 285. General rule. 
 
 286. When injunction will be retained. 
 
 287. Same subject. 
 
 288. Dissolution where the sole relief is injunctive. 
 
 289. Dissolution where court has been imposed on. 
 
 290. Court's discretion as to dissolution — Limit of. 
 
 291. Discretion further considered and illustrated. 
 
 291a. Dissolution — Where party entitled to another injunction. 
 
 292. Amending defects on hearing motion to dissolve. 
 
 293. Dissolution for irregularity — Alabama rule. 
 293a. Fatal defects or irregularities. 
 
 293b. Vagueness as ground for dissolution. 
 
 294. Dissolution where no bond is given — Defective or insufficient 
 
 bond. 
 
 295. Dissolution on defendant's bond. 
 
 296. Same subject — In Louisiana. 
 
 297. Dissolution for laches. 
 
 298. Dissolution where subpoena not served. 
 
 299. Motion to dissolve before answer. 
 
 300. Same subject. 
 
 301. Rebuttal of answer on motion to dissolve. 
 
 302. Affidavits on motion to dissolve. 
 
 303. Dissolution on papers of original application. 
 
 304. Answer as equivalent onlv to an affidavit — Counter affidavits, 
 
 305. Dissolution on denials of answer. 
 
 306. Dissolution on defendant's denial of equities of bill. 
 306a. Same subject continued. 
 
 307. Same subject — Discretion of court.
 
 XVI 
 
 Table or Contents. 
 
 Sectiox 30S. Same subject. 
 
 309. Answers not responsive. 
 
 310. Same subject — Exceptions. 
 
 311. Dissolving an answer after exceptions to it. 
 
 312. Answers not denying admit — Evasive answers. 
 
 313. Answers admitting and then avoiding by new defense. 
 .'.14. Qualified answers — On information and belief. 
 
 315. Dissolution on answer. 
 
 316. Dissolution on answer though bill waive oath. 
 '! 1 7. Evidence admissible on motion to dissolve. 
 318. Dissolution of injunction on bill of discovery. 
 
 :;]!). Dissolving injunction on ground of adequate legal remedy. 
 
 320. Motion to dissolve for want of jurisdiction. 
 
 321. Dismissing liill on dissolution of injunction. 
 
 322. Same subject — Iii Texas. 
 
 323. Dissolution where several defendants. 
 
 324. Sam<> subject — Qualifications and exceptions. 
 
 325. Same subject. 
 
 326. Same subject. 
 
 326a. Where additional parties are brought in. 
 
 327. Dissolution oi common and special injunctions. 
 
 328. Where enforcement of judgment stayed. 
 
 329. Same subject. 
 
 330. Dissolution by implication — By sustaining demurrer. 
 330a. Same subject — Injunction in force until a certain time. 
 330b. Same subject — Dismissal of bill — Effect of decree. 
 330c. Same subject continued. 
 
 331. Dissolution of injunctions affecting realty. 
 
 ::.;•_'. Dissolution of injunction granted on charges of fraud. 
 
 333. Dissolution on removal of cause to Federal court. 
 
 334. Dissolution not affected by mere appeal. 
 
 335. Notice of motion to dissolve — General rule. 
 
 336. Same subject. 
 
 337. Who may apply for dissolution. 
 
 337a. Same subject — Where defendant in contempt. 
 337b. Same subject continued. 
 
 338. Dissolution by whom granted. 
 
 339. Dissolution at chambers — In vacation — Notice. 
 
 340. Abatement of injunction on plaintiff's death. 
 
 341. Abatement by death of defendant. 
 341a Continuance of motion to dissolve. 
 
 342. Second motion to dissolve. 
 
 343 lie-lit ut ion by plaintiff on dissolution. 
 344. Reinstatement on dissolution.
 
 Table of Contents. rvii 
 
 CHAPTER X. 
 
 Paeties. 
 
 Section 345. Parties in interest — Generally. 
 
 346. Parties in interest — Bringing in — General rule. 
 346a. Bringing in of additional parties — Amendments. 
 
 347. Proper and necessary parties — Who are. 
 34S. Same subject — Parties defendant. 
 
 348a. Same subject continued. 
 
 349. Standing as party through injunction. 
 
 350. United States as party. 
 
 351. State as party — Relators. 
 
 352. Same subject. 
 
 353. Same subject — Nuisances. 
 
 354. Cities and citizens. 
 
 355. Towns as parties. 
 
 356. Same subject — Abutting owners. 
 
 357. Attorney-general as plaintiff. 
 
 358. Corporations as parties. 
 
 359. Trustees — Receivers. 
 
 360. Sureties — Principals — Administrators. 
 
 361. Taxpayers as plaintiffs. 
 361a. Same subject continued. 
 
 362. Joinder of plaintiffs — Life tenants. 
 
 362a. Joinder of plaintiffs — Life tenants — Tenants in common. 
 
 363. Joinder of plaintiffs — Abutting owners, etc. 
 
 364. Misjoinder of plaintiffs. 
 
 365. One or more for all. 
 
 366. Injunctions against proceedings at law. 
 
 367. Same subject — Joining officers. 
 367a. Joining officers continued. 
 
 368. Joinder of defendants — Nuisance. 
 
 369. Same subject — Bills of peace. 
 
 370. Same subject — Frauds. 
 
 371. Joinder of patent owner as defendant where licensee sues. 
 
 372. Joinder of plaintiffs at law as defendants in equity. 
 
 373. Defect of parties defendant. 
 
 374. Dismissal for want of necessary parties. 
 
 CHAPTER XI. 
 
 Appeals. 
 
 Section 375. Useless appeals. 
 
 376. Restricting and protecting appeals. 
 
 377. Who may appeal. 
 
 378. Injunction order operating as final decree. 
 
 379. Appeals in Alabama. 
 
 380. In Arizona — Arkansas. 
 
 b
 
 xviii Table of Contents. 
 
 Section 381. In California, Colorado, Dakota. 
 
 382. In Delaware, District of Columbia and Florida. 
 
 383. In Georgia. 
 
 384. In Illinois. 
 
 385. In Indiana. 
 
 385a. In Iowa — Kansas. 
 385b. In Kentucky. 
 380. In Louisiana. 
 
 387. In Maryland. 
 387a. In Michigan. 
 387b. In Minnesota. 
 387c. In Missouri. 
 
 388. In Montana. 
 388a. In Nebraska. 
 
 389. In New Jersey. 
 
 390. In New York. 
 
 390a. In North Carolina — In North Dakota. 
 
 391. In Ohio, Oklahoma, Pennsylvania. 
 
 392. In South Carolina. 
 392a. In Texas— Utah. 
 
 393. In Virginia. 
 393a. In Washington. 
 
 394. In Wisconsin. 
 
 395. Appealable decrees in Federal courts. 
 
 396. Appeals to Circuit Court of Appeals. 
 
 397. Same subject — Assignment of errors. 
 
 398. Reversals by the Federal Circuit Court of Appeals. 
 
 399. Joinder of joint defendants in writ of error — Federal rule. 
 
 400. Effect of appeal — Federal rule — Stay pending appeal. 
 
 401. In Alabama — Arkansas. 
 401a. In California. 
 
 402. In Florida. 
 
 402a. In Georgia — Illinois. 
 
 402b. In Iowa. 
 
 402c. In Louisiana. 
 
 402d. In Michigan — Minnesota — Montana. 
 
 403. In New Jersey. 
 
 404. In New Jersey, continued. 
 
 405. In New York. 
 
 400. In North Carolina— Ohio. 
 
 406a. In Texas. 
 
 400b. In Washington. 
 
 406c. In West Virginia — Wisconsin. 
 
 406d. In England. 
 
 407. Appeals from decree dismissing bill. 
 
 408. Objections barred on appeals. 
 
 409. Appeal record. 
 
 410. Conclusiveness of findings. 
 
 410a. Scope of review by Appellate Court. 
 
 411. Appeal or mandamus.
 
 Table of Contents. xrx 
 
 CHAPTER XII. 
 Injunctions Against Feaud. 
 
 8BOTIOH 412. Enjoining frauds upon the law. 
 
 413. Equity jurisdiction of fraud. 
 
 414. Burden of proof on complainant. 
 
 415. Presumption of fraud. 
 
 416. Silence as fraud — suppressio veri. 
 
 417. Participators in fraud enjoined. 
 
 418. Enjoining proceedings at law. 
 418a. Same subject continued. 
 
 419. No injunction if remedy at law. 
 
 420. Complainant must show injury. 
 
 421. Contracts procured by fraud. 
 421a. Same subject — Rule illustrated. 
 421b. Same subject — Bonds. 
 
 422. Corporate fraud. 
 
 423. Breach of Trust as Fraud. 
 423a. Fraud by administrator. 
 
 424. Injunctive relief lost by laches. 
 
 425. Dissolution on answer where bill charges fraud. 
 
 CHAPTER XIII. 
 
 Relating to Contracts. 
 
 Wmcmo-a 426. Contracts against public policy. 
 
 427. Ultra vires contract not to be enforced by injunction. 
 
 428. Injury to be threatened. 
 
 429. Inadequacy of legal remedy to be shown. 
 
 430. Same subject. 
 
 430a. Effect of provision for liquidated damages. 
 
 431. Complainant must have performed — Clean hands. 
 
 432. Determining right to enjoin contract after its expiration. 
 
 433. Conditional and incomplete contracts. 
 
 434. Same subject — Railroad contracts. 
 
 435. Unfair and involved contracts. 
 
 436. Contracts conferring exclusive rights. 
 
 437. Same subject. 
 
 437a. Same subject — Cas contracts with municipality. 
 437b. Gas contracts — Generally — Electricity. 
 
 438. Coal mine contracts. 
 
 439. Grants of easements. 
 439a. Contract to supply water. 
 
 440. Enjoining assignee of contract — Tenant. 
 440a. Against one not party to a contraet. 
 
 441. Taxpayers' actions to restrain or enforce contracts.
 
 XX 
 
 Table of Contents. 
 
 Section 442. Same subject. 
 
 443. Injunctions in aid of specific performance. 
 
 444. Same subject— When injunction lies. 
 
 445. Same subject — When contract uncertain. 
 
 446. Exceptions to general rule — Railroad contracts. 
 
 447. Specific performance of real contracts — Discretion. 
 
 448. When mutuality is wanting. 
 
 449. Contracts affecting the public. 
 
 450. Enforcing parol agreement to devise. 
 
 451. Enforcing implied contracts by injunction — Trade secrets. 
 
 452. Enforcing contracts for personal service. 
 
 452a. Enforcing contracts for personal service — Actors. 
 
 453. Same subject— BaseLall players. 
 
 454. Same subject — Acrooats. 
 
 455. Same subject — Insurance agents. 
 45G. Same subject — Author and dramatist. 
 45Ca. Partners. 
 
 457. Enforcing negative covenants — Implication of. 
 
 458. Enforcing trusts by injunctions. 
 
 459. Usurious contracts. 
 
 460. Gaming contracts. 
 
 CHAPTER XIV. 
 
 CONTEACTS IN RESTRAINT OF TKADE. 
 
 Section 461. General considerations of policy. 
 161a. Object of anti-trust statutes. 
 
 402. Reasonableness and not motive the test of validity. 
 402a. As between employer and employee — Generally. 
 463. The modern doctrine. 
 
 . Decisions — Alabama — California. 
 b. Decisions in Illinois — Indiana — Maine. 
 46 \. Decisions — Massachusetts. 
 
 . Massachusetts decisions continued. 
 .. Decisions — Michigan. 
 167. Decisions- New .Jersey. 
 Same subject. 
 Decisions — New York. 
 Decisions — Pennsylvania — Texas. 
 Federal rule. 
 I) i tons— England — Canada. 
 of -/""'I will. 
 •171. As to unique manufactures. 
 
 Devisible contracts restraining trade. 
 Adequai ideration not material. 
 
 I'm., I restrictive agreements. 
 . What constitutes violation. 
 173b Agreements— Dissolution of partnership.
 
 Table of Contents. xs 
 
 Section it'6e. Injunction against third party. 
 473d. Agreement not to use name. 
 473e. Effect of provision for liquidated damages. 
 473f. Power of court to award damages. 
 473g. Time of bringing action to enjoin. 
 473h. Sufficiency of complaint. 
 
 CHAPTER XV. 
 
 Relating to Restrictive Covenants. 
 
 Section 474. Enforcing restrictive covenants by injunction — Change of locus. 
 
 475. Though covenant does not run with land. 
 
 476. Form of covenant not essential. 
 
 477. Though covenant not in writing. 
 
 478. How statute of frauds affects oral covenants. 
 
 479. As between successors to title. 
 
 480. Restrictions as to buildings — Though no damage. 
 
 481. Covenant against tenement houses — Dwellings only. 
 481a. Restrictions as to use of premises. 
 
 4S2. Covenant not to sell liquors. 
 
 483. Enjoining vendor from breach of covenants. 
 
 4S3a. Same subject — Tract of land divided into lots. 
 
 4S4. Lessees' covenants. 
 
 485. Same subject. 
 
 456. Sub-lessees. 
 
 457. Enjoining lessor from breach of covenants. 
 
 488. Waiver of right to enjoin breach — Acquiescence. 
 
 488a. Same subject — Where complainant has violated restriction. 
 
 489. Vague and uncertain general covenants. 
 489a. Need not be substantial injury. 
 
 490. Present and reversionary interests. 
 
 491. Penalty and liquidated damages. 
 
 492. Same subject illustrated. 
 
 493. Same subject — Construction of covenant. 
 
 CHAPTER XVI. 
 
 Relating to Bonds and Kotes. 
 
 Section 494. As to instrument valid on its face. 
 
 495. Enjoining collection or transfer for fraud. 
 
 496. Same subject. 
 
 497. Enjoining transfer of note. 
 
 498. Same subject. 
 
 498a. Same subject — Adequate remedy at law. 
 
 499. Enjoining action on note obtained by fraud. 
 
 500. Enjoining action on note for failure of consideration. 
 
 501. Set off — Insolvency. 
 
 502. Enjoining defense of coverture to wife's note. 
 
 503. As against subsequent holder.
 
 xxii Table of Contents. 
 
 CHAPTER XVII. 
 Relating to Strikes, Boycotts and Monopolies. 
 
 Section 504. Enjoining strikers from using force, threats or intimidation. 
 504a. What constitutes intimidation. 
 504b. Picketing by strikers. 
 504c. Rights of employees in respect to striking. 
 
 505. Mere enticement or persuasion of workers not enjoined. 
 505a. Interference with access to premises. 
 
 506. What trade combinations not enjoined. 
 
 507. Lawful trade combinations. 
 507a. Conspiracy generally. 
 507b. Conspiracy continued. 
 507c. Boycotts generally. 
 
 508. Restraining boycott of newspapers. 
 
 508a. Railroad strikes affecting interstate commerce and mails- 
 Right of national government. 
 
 509. Railroad boycotts — Violating Interstate Commerce Act. 
 
 510. Same subject. 
 
 511. Enjoining trade libels. 
 511a. Same subject — Circulars. 
 
 512. In case of trespass. 
 
 513. Restraining monopolies. 
 
 513a. Same subject — Northern Securities Co. v. United States. 
 
 514. Protecting monopolies by injunction. 
 
 515. Monopolies — Restrain of interstate commerce. 
 510. Same subject continued. 
 
 517. Commercial trusts — Insurance combinations. 
 517a. Who bound by injunction — Violation of. 
 
 CHAPTER XVIII. 
 
 Relating to Multiplicity of Suits. 
 
 Section 518. Bills of peace. 
 
 518a. What constitutes multiplicity. 
 
 519. Bills of peace by grantees from common grantor. 
 
 520. Prerequisites to injunctive relief. 
 
 520a. Same subject — Necessity of establishing right at law. 
 520b. Must lie community of interest. 
 520c. Where actions can be consolidated. 
 
 521. Actions in ejectment. 
 
 522. Same subject. 
 
 523. In cases of repeated trespass. 
 
 524. Same subject. 
 
 ■>!'>. Same subject — General rule modified. 
 
 626. \~. to trespasses under unconstitutional statute. 
 
 527. As between claimants of a common fund. 
 
 528. Same subject.
 
 Table of Contents. xxin 
 
 Section 529. As to victims of the same fraud. 
 
 530. In case of bonds fraudulently guaranteed. 
 
 531. Cases of void ordinance and tax. 
 
 532. Same subject. 
 
 533. Where several lot owners are illegally assessed. 
 
 534. Protection of franchises. 
 
 535. Patent infringement suits. 
 
 536. Where carrier collects insurance lor numerous owners. 
 
 537. Enjoining pending actions in same and other courts. 
 
 538. Where different creditors are interested. 
 
 539. Different creditors' actions not enjoined. 
 
 539a. Where statute provides mode of procedure— Attachment suite. 
 
 540. Where instruments held by independent parties. 
 
 541. In cases of interpleader. 
 
 542. In cases of nuisance and waste. 
 
 543. Where many are injured by same negligence. 
 
 544. Enjoining some of many suits. 
 
 CHAPTER XIX. 
 
 Staying Actions and Suits. 
 
 SECTION 544a. Jurisdiction to stay actions generally. 
 544b. Same subject — Limitation on power. 
 
 545. Parties not court restrained. 
 
 546. Court's action not ground for injunction. 
 546a. Party must come with clean hands. 
 
 547. In cases of fraud— Malice. 
 
 548. Same subject — Accident. 
 
 549. Action enjoined on ground of mistake. 
 
 550. Enjoining actions on fraudulent instruments, etc. 
 
 551. Enjoining actions on notes. 
 
 552. Action at law not enjoined at instance of third persons. 
 
 553. Statutory requisites — Jurisdiction — Damages. 
 
 554. Action at law not enjoined unless shown to be necessary. 
 
 555. No injunction where there is remedy by appeal. 
 
 556. Same subject — Where no jurisdiction. 
 
 557. No injunction where remedy by certiorari. 
 
 558. The effect of enjoining action at law. 
 
 558a. To protect persons acting under orders of court. 
 
 559. Enjoining actions against receivers. 
 
 560. As to arbitrators and awards. 
 
 561. As against garnishees. 
 
 562. Protecting surety where creditor has collaterals. 
 
 563. Enjoining attachments of property of insolvent. 
 
 564. Interpleader and injunction. 
 
 565. Same subject. 
 
 566. Enjoining action at law in case of set-off. 
 
 567. Enjoining action where creditor agreed to release claim.
 
 rxiv Table of Contents. 
 
 Section 568. Same subject. 
 
 569. Actions barred by statute of limitations. 
 
 570. Same subject. 
 
 571. In cases of res acljudicata. 
 
 572. Same subject — Equitable estoppels. 
 
 573. Restraining the enforcement of void ordinances. 
 
 574. Criminal proceedings not enjoined. 
 
 575. Enjoining fraudulent defenses. 
 
 576. Same subject — Enjoining married woman. 
 576a. Where adequate remedy at law. 
 
 577. Defensible action at law not enjoined. 
 
 578. Same subject — Court's discretion. 
 
 579. Same subject — Summary proceedings. 
 5S0. Same subject — Mandamus proceedings. 
 
 581. Enjoining condemnation proceedings. 
 
 582. Same subject — Where injunction proper. 
 
 583. Enjoining defensible actions at law — Qualification of rule. 
 
 584. Partition suits. 
 
 585. Same subject — Concurrent jurisdiction. 
 
 586. Enjoining action of ejectment — Reforming deed — Where vested 
 
 remainder. 
 
 587. Enjoining ejectment of a possessor under contract of sale. 
 
 588. Ejectment of tenant when enjoined. 
 
 589. Restraining action in ejectment for laches. 
 
 590. When ejectment not enjoined for mistake. 
 
 591. When action of trespass will not be enjoined. 
 
 592. Action for forcible entry — Rules as to enjoining. 
 
 593. Enjoining foreclosure of mortgage. 
 
 594. Same subject — Set-off against mortgage. 
 
 595. Enjoining action at law by mortgagee after mortgage debt is 
 
 paid. 
 
 596. Action at law for breach of covenants in deed. 
 
 597. Priority of suits. 
 
 598. Same subject. 
 
 599. Where jurisdiction is concurrent. 
 
 600. Federal injunctions against proceedings in State courts. 
 
 601. Same subjects — Enjoining administrators. 
 
 601a. Injunctions in State courts against proceedings in Federal 
 courts. 
 
 602. Enjoining further proceedings in State court in case of removal. 
 602a. Where tribunal has exclusive jurisdiction. 
 
 603. Enjoining equity action in same court. 
 
 604. Same subject. 
 
 605. Action not enjoined because of foreign suit. 
 600. Enjoining proceedings in another State. 
 
 606a. Same subject— Suit in one State to evade laws of another State. 
 606b. Enjoining appeals. 
 007. In cases of usury.
 
 Table of Contents. xxv 
 
 CHAPTER XX. 
 
 To Aid Otheb Remedies. 
 
 Section 608. The auxiliary usefulness of injunctions. 
 
 609. In aid of execution. 
 
 610. Same subject — Under inherent equity powers. 
 
 611. In aid of receivers. 
 
 612. To aid writ of possession. 
 
 613. In aid of assignments for benefit of creditors. 
 
 614. In aid of relief against usury. 
 
 CHAPTER XXI. 
 
 Against Judgments; General Considerations. 
 
 Section 615. General rule. 
 
 616. Amount due must be paid or tendered. 
 
 617. No injunction where remedy at law — Appeal — Certiorari. 
 617a. Same subject continued. 
 
 618. Judgment not enjoined if reviewable. 
 
 619. Set-offs. 
 
 620. Cases of set-off continued. 
 
 621. Enjoining judgment founded on perjury. 
 
 622. Enjoining judgment on bond given to suppress forgery. 
 
 623. Execution for costs and interest thereon. 
 
 624. Restraining levy to extort costs. 
 
 625. Enjoining execution where judgment has been paid. 
 
 626. Same subject. 
 
 627. Same subject — Constructive payment. 
 
 628. Enjoining judgment for alimony. 
 
 629. Enjoining judgment for usury. 
 
 630. Same subject — Legal interest to be paid or tendered. 
 
 631. Enjoining judgment when summons not served. 
 
 632. Same subject. 
 
 633. Same subject continued. 
 
 634. Enjoining judgment if summons served on Sunday. 
 
 635. Judgment without notice of hearing — Defective summons. 
 
 636. Enjoining judgment for irregularities. 
 
 637. Enjoining void judgments. 
 
 638. Judgments void for want of jurisdiction. 
 
 639. Default judgments. 
 
 640. Default through neglect. 
 
 641. Same subject — In Mississippi and Texas. 
 
 642. Where default judgment only irregular — Where void. 
 
 643. Enjoining confessed judgments. 
 
 644. Same subject. 
 
 645. Chancery jurisdiction over judgments at law. 
 
 646. Same subject — In other States.
 
 xxvi Table of Contents. 
 
 Section 647. Same subject continued. 
 
 648. Statutory jurisdiction — California, etc. 
 
 649. Same subject — Indiana, Kentucky, etc. 
 
 650. Jurisdiction to enjoin Federal judgments. 
 
 651. Enjoining process as between State and Federal eourts. 
 
 652. Parties. 
 
 653. Parties continued. 
 
 654. Defect of parties — Effect of. 
 
 655. Must be judgment or lien creditors. 
 
 656. Same subject — Preferred liens. 
 
 657. Enjoining judgment barred by laches. 
 
 658. Sureties' suit to enjoin judgment. 
 
 659. Same subject. 
 
 660. Enjoining arbitrators' awards. 
 
 661. When bankrupt may enjoin execution. 
 
 662. To prevent multiplicity of suits. 
 
 663. Preliminary injunctions — Requisites. 
 
 664. Refunding bond. 
 
 665. Requisites of bill to enjoin judgment, etc. — Demurrer. 
 
 666. Multifariousness. 
 
 667. Staying injunction judgment by appeal. 
 
 668. Release of errors by enjoining judgment. 
 
 669. Effect of enjoining all proceedings. 
 
 670. Effect of enjoining execution on Statute of Limitation*. 
 
 671. Miscellaneous cases. 
 
 CHAPTER XXII. 
 
 Against Judgments; Defenses at Law. 
 
 Section 671a. Enjoining judgment — Defense available at law — General rule. 
 671b. Same subject continued. 
 
 672. Enjoining judgment where defense not available at law. 
 
 673. Judgments enjoined only on equitable grounds. 
 
 674. Equitable defense as ground for injunction. 
 
 675. Bills for new trials. 
 
 676. Same subject — New evidence. 
 
 677. Defense essential though judgment erroneous. 
 
 678. Same subject — Meritorious defense. 
 
 679. Judgment not enjoined where defense has been tried at law. 
 
 680. Same subject. 
 
 681. Facts showing defense must be pleaded. 
 
 682. Diligence in learning of and making defense. 
 
 683. Negligence as bar to injunction. 
 
 684. Where defendant was ignorant of defense and not negligent. 
 
 685. Judgment not enjoined where defendant's attorney negligent. 
 
 686. Injunction barred by defendant's negligence.
 
 Table of Contents. xrvii 
 
 VOLUME II. 
 
 CHAPTER XXIII. 
 
 Against Judgments Resulting from Feaud, Mistake, Acci- 
 dent. 
 
 ■ .. .'/:'.S 
 Section 687. Enjoining fraudulent judgments. 
 
 688. Same subject. 
 
 689. Enjoining judgments fraudulently altered — Foreign judgment. 
 
 690. Fraudulent promise and compromise. 
 
 691. Enjoining judgment entered in violation of agreement. 
 
 692. Same subject. 
 
 693. Enjoining collection of fraudulent judgment for costs. 
 
 694. The fraud must be in the procurement of the judgment. 
 
 695. Facts of fraud essential — Inferences insufficient. 
 
 696. Requisite allegations of fraud. 
 
 696a. Judgment through unauthorized appearance of third person. 
 
 697. When judgment not enjoined on ground of fraud. 
 
 698. Cumulative statutory remedy for fraud, etc. 
 
 699. Enjoining foreign judgments for fraud. 
 
 700. Federal injunctions against fraudulent State judgments. 
 
 701. Mistake as ground for injunction. 
 
 702. When mistake not ground for injunction. 
 
 703. Judgment not enjoined for mistakes of law — Counsel's mistake. 
 
 704. Judgment enjoined for court's mistake, etc. 
 
 705. Same subject — Court's error. 
 
 706. Accident as ground for injunction. 
 
 707. Where legal remedy for accident and mistake. 
 
 CHAPTER XXIV. 
 
 Against Execution Sales of Realty. 
 
 Section 707a. Executions generally — No injunction where adequate remedy 
 at law. 
 
 707b. Executions generally — Where execution void on face. 
 
 707c. Executions generally — Sale of complainant's property on exe- 
 cution against another. 
 
 707d. Same subject — Vendor or vendee. 
 
 707e. Executions generally — Where no judgment or illegal judgment. 
 
 707f. Execution sales of realty — Generally. 
 
 708. Enjoining execution sale of homesteads. 
 
 709. Same subject. 
 
 710. Enjoining execution where judgment is cloud on title. 
 
 711. Same subject — Possession must be alleged. 
 
 712. Enjoining cloud on title of insolvent's assignee.
 
 xxviii Table of Contents. 
 
 Section 713. As to lands under administration. 
 
 714. Writ of possession. 
 
 715. Same subject — Nonresident — No service. 
 
 716. Enjoining ejectment judgment as against equitable leasee. 
 
 717. Enjoining order for forcible entry, etc. 
 
 718. Protecting wife's separate real estate. 
 
 719. Same subject — Voluntary conveyance by husband to wife. 
 
 720. Enjoining levy on land intended to be conveyed to debtor's wife. 
 
 721. Enjoining judgment for failure of title or consideration. 
 
 722. Enjoining execution on third person's property. 
 
 723. Same subject — Exceptions. 
 
 724. Same subject — To prevent cloud on title. 
 
 725. Enjoining sale of land where judgment or debt paid. 
 
 726. Enjoining execution on land where judgment collusive. 
 
 727. Enjoining sale under judgment by one not a party to judgment. 
 
 728. Enjoining execution sale in order to protect mechanics' liens. 
 
 729. Same subject. 
 
 730. Judgments on contract where exemption from liability. 
 
 731. Enjoining excessive levy. 
 
 732. Executions affecting remainders. 
 
 733. Enjoining collection of purchase money where judgment- . < 
 
 liens. 
 
 734. Where no summons or notice served. 
 
 735. Enjoining executions beyond jurisdiction of court. 
 
 730. Pleading — Requisite allegations — Facts not conclusions. 
 737. Appeal from decree enjoining realty execution. 
 
 CHAPTER XXV. 
 
 Against Execution Sales of Personalty. 
 
 Skctton 738. Enjoining sale of exempt property. 
 
 739. Sale not enjoined where legal remedy adequate. 
 
 740. Not enjoined where remedy therefor in damages. 
 
 741. Execution not enjoined where there is a statutory remedy. 
 
 742. Incumbrancer's injunction against execution. 
 
 743. Execution sale of paraphernal property. 
 
 744. Enjoining sale of personalty in custodia legis. 
 
 745. Staying execution pending appeal. 
 
 746. Damages for enjoining execution process. 
 
 CHAPTER XXVI. 
 
 A«;.\:nst Tin. [nfmngement of Trade-Marks ; Trade Names, 
 
 frteoTioar 747. The purpose and philosophy of trademarks. 
 
 748. Four peneral rules. 
 
 749. Priority of use. 
 
 750. Descriptive words, etc., as to quality. 
 
 751. 8ame subject.
 
 Table of Contexts. xxix 
 
 t ). ■• ~< 
 
 Section 752. Letters and numerals. 
 
 753. Geographical names. 
 
 754. Names indicating origin and ownership protected. 
 
 755. Names applied to natural products. 
 
 756. Trademark word or name not to be used by another in any 
 
 form — Otherwise as to picture or symbol. 
 756a. Enjoining use of name of hotel. 
 
 757. When actual deception need not be proved. 
 
 758. Infringing trademarks by acts only. 
 
 759. Same subject — Responsibility for sales by retailer 
 
 760. Use of person's name by another enjoined. 
 
 761. Same subject — In Massachusetts. 
 761a. Use of name under a license. 
 761b. Where trademark only transferred. 
 
 762. Use of own name when enjoined. 
 762a. Same subject continued. 
 
 763. Use by vendor of business of own name. 
 
 764. Arbitrary and fanciful words as trademarks. 
 
 765. Coined words registered as trademarks. 
 
 766. Corporate names. 
 
 767. Name of patented article after patent expires, 
 767a. Name copyrighted — Expiration of copyright. 
 
 768. Effect of trademark registration. 
 
 768a. Trademark registration — Effect on jurisdiction. 
 
 769. Unlawful competition. 
 
 769a. Unlawful competition continued. 
 
 769b. Use of former employer's name in advertising. 
 
 770. Imitation where no technical trademark. 
 
 771. Same subject — Fraudulent imitation. 
 
 772. Same subject — Resemblance of primary importance— Court's 
 
 comparison without witnesses. 
 
 773. Test of enjoinable resemblance. 
 
 774. Misleading imitations illustrated — Boxing and methods. 
 
 775. Enjoining imitation though differing in details. 
 
 776. Same subject illustrated. 
 
 777. Packages of peculiar form and devices. 
 
 778. Protecting symbols foreign manufacturers — Necessary publicity. 
 778a. Labels indicating article made by union — Imitation of. 
 
 779. Necessary averments of imitation's publicity. 
 
 780. Preliminary injunction. 
 
 781. Preliminary injunction refused in doubtful cases — Delay— Fraud. 
 
 782. Same subject. 
 
 782a. Preliminary injunction — Dissolution of. 
 
 783. Violations of injunction — Punishment. 
 783a. Defenses. 
 
 784. Defenses continued. 
 
 785. Cross bill as an original bill. 
 
 786. Parties. 
 
 787. Transferees. 
 
 788. Same subject.
 
 XXX 
 
 Table of Contents. 
 
 Sbctiow 789. Where trademark but not business transferred. 
 
 790. Effect of laches. 
 
 791. Clean hands. 
 
 792. Clean hands — Patent medicines. 
 792a. Same subject — Trade name. 
 
 793. Clean hands — Where no deception intended. 
 
 CHAPTER XXVII. 
 Against Infringement of Patents. 
 
 SBCTIOX 794. The nature of patentable inventions. 
 
 795. Exclusive jurisdiction of Federal courts over patent infringe- 
 
 ments. 
 
 796. Jurisdiction of Circuit Courts. 
 
 797. Ground of jurisdiction. 
 
 797a. Right to injunction as affected by non-user. 
 
 798. Enjoining assignee from encumbering patent. 
 
 799. Defeat of jurisdiction by expiration of patent. 
 
 800. Same subject. 
 
 801. Same subject — Enjoining infringing sales. 
 
 802. Enjoining infringement before patent issues. 
 
 803. Enjoining slander of title to letters patent. 
 
 804. Parties — Joinder and misjoinder. 
 
 805. Agents, etc., as parties defendant — Foreign shipmasters. 
 
 806. Enjoining licenses — Effect of sale by patentee. 
 806a. Injunction against bringing of suits. 
 
 807. Injunction against owner of patent' in favor of licensee. 
 
 808. As to innocent purchasers from infringers — Users. 
 
 809. Clean hands. 
 
 810. Requiring bond from complainant — Damages against him. 
 
 811. Threatened infringements considered — Actual infringements. 
 
 812. Accounting as incidental relief. 
 
 813. Same subject — Measure of damages. 
 
 814. Increased damages against defendant under the statute. 
 
 815. Destruction of infringing articles rarely decreed. 
 
 816. Injunction barred by patentee's laches. 
 
 817. Laches continued. 
 
 818. Laches in applying for reissue. 
 
 819. Effect of laches where infringement admitted. 
 
 820. Failure to mark device as patented not a bar. 
 
 821. Defendant's bond instead of injunction. 
 
 822. Same subject — Illustrations. 
 
 823. Royalty instead of injunction. 
 
 824. Balancing convenience and equities. 
 
 825. Same subject. 
 
 826. Objection of public injury. 
 
 827. Plaintiff's right to be clear — Not so defendant's. 
 
 828. Establishing right by jury. 
 
 829. Absence of equities illustrated.
 
 Table of Contents. xxxi 
 
 Section 830. Complainant's estoppel by acquiescence in patent office decisions. 
 
 831. In cases of withdrawn patent — Disclaimer. 
 
 832. Estoppel further considered. 
 
 833. Estoppel by acquiescence in defendant's acts. 
 
 834. Employee's inventions. 
 
 834a. Employee's inventions — Right of employer to — Injunctions- 
 Damages. 
 
 835. Defendant's solvency as defense. 
 
 836. Protecting patentee of improvements — Proof of prior use. 
 
 837. Infringer enjoined in spite of his promise. 
 
 838. Necessary averments of bill. 
 
 839. Multifarious bill. 
 
 840. Surplusage in answer — Prior public use of two years. 
 
 841. Demurrer to infringement bill. 
 
 842. Violation of injunction. 
 
 843. Dissolution of injunction. 
 
 843a. Dissolution of injunction continued. 
 
 844. Where plaintiff's right admitted or adjudicated. 
 844a. Prior adjudications — Generally. 
 
 845. Conclusive prior adjudications — Of Supreme Court, etc. 
 
 846. Patent sustained in other circuits. 
 
 847. Same subject — Patent office decisions. 
 
 848. Prior inconsistent decisions. 
 
 849. Foreign adjudications, etc. 
 
 850. Re-examination by Circuit Court of Appeal. 
 
 851. Enjoining infringement when patent adjudicated — Other ques- 
 
 tions postponed. 
 
 852. Postponing new defenses till final hearing. 
 
 853. Same subject — Court's discretion. 
 
 854. Prior adjudication not absolutely essential — Public acquiescence. 
 
 855. Old, distinguished from new patents. 
 
 856. Presumed validity of patent, etc. 
 
 857. No preliminary injunction where validity doubtful. 
 
 858. Or where infringement doubtful. 
 
 859. Or where novelty doubtful. 
 
 860. Patentable novelty essential. 
 
 861. Necessary averments to novelty, etc. 
 
 862. Mere mechanical skill not patentable — Invention essential. 
 
 863. Old processes for new uses not protected. 
 
 864. Same subject — Where material defects remedied. 
 
 865. Same subject. 
 
 866. Where defendant before estopped to question novelty, etc. 
 
 867. Anticipation — Proof as to. 
 
 868. Proof of another's prior use or knowledge. 
 
 869. Notice of prior use — Waiver of oath. 
 869a. Appeal — Scope of review on.
 
 xxxii Table of Contents. 
 
 CHAPTER XXVIII. 
 Against Infringement of Cofyeight. 
 
 Section 870. Copyright distinguished from patents. 
 
 871. Copyright protection is wholly statutory. 
 871a. Construction of copyright statutes. 
 871b. Compliance with statutory requirements. 
 
 871c. Same subject — Publication of book in serial form. 
 87 Id. Remedies provided by copyright statutes exclusive. 
 
 872. Extracts as infringement. 
 
 873. Compilations and abridgements, etc. 
 873a. Compilations — Credit ratings. 
 
 874. Copyright of maps and plans. 
 
 875. Albums — Cyclopaedias — No copyright in name. 
 
 876. Same subject. 
 
 877. Labels — Prices current — Blanks. 
 
 878. Enjoining the piracy of news. 
 
 879. Protecting newspaper's name. 
 
 880. Directory headings. 
 
 881. Protecting law reports — Courts' opinions. 
 
 882. Law reports and digests — Balancing convenience in cases of doubt. 
 882a. Infringement by State — Publication of statutes. 
 
 883. Dramatizing novels. 
 
 884. Musical compositions — Piano-forte arrangements, etc. 
 
 884a. Musical composition — What is a copy of within copyright law. 
 
 885. Pantomime — Merely mechanical movements. 
 
 886. Protecting translations of plays, etc. — International copyright. 
 
 887. Protecting sculpture. 
 
 888. Paintings, photographs, etc. 
 
 888a. Right to " vend " under copyright statutes construed — Fixing 
 
 of retail price by owner of copyright. 
 888b. Sale of plates by owner of copyright — Agreement as to price 
 
 of book. 
 SSO. When injunction should issue — Jurisdiction. 
 
 890. Rule as to preliminary injunctions. 
 
 891. In cases of agency. 
 
 2. Coincidence of errors as proof of infringement. 
 892a. Doubtful cae 
 
 Clean hands. 
 S93a. Pleading. 
 994. Parties. 
 
 Parties — Action by one of tenants in common. 
 81)6. Alien assignors — Legal and equitable owners. 
 807. Accounting incident to injunction — Rule as to profit.*. 
 
 Rule of damages. 
 ■ Forfeiture of infringing lxioks.
 
 Table of Contents. xxxiii 
 
 CHAPTER XXIX. 
 
 To Protect Literary Property. 
 
 Section 900. Common law protection to inventors and authors. 
 
 901. Protecting property in manuscripts. 
 901a. Same subject — Unfair competition. 
 
 901b. Right of author to have name appear — Encyclopedia articles. 
 
 902. Protecting private letters. 
 
 903. Protecting lectures, paintings. 
 903a. Protecting statues. 
 
 903b. Protecting photographs. 
 
 903e. Publication of opera — Reservation of acting right. 
 903d. Publication of play — Agreement to keep work in manuscript 
 form. 
 
 904. Where play obtained by memorizing it. 
 
 905. Translator and dramatizer protected. 
 
 905a. Play based on facts of a murder — Right to produce — Accused 
 on trial. 
 
 906. Preventing breach of confidence. 
 
 906a. Same subject — Use of another's statements in advertisement. 
 
 907. Colorable imitations. 
 
 908. Jurisdiction. 
 
 CHAPTER XXX. 
 
 Relating to Trusts and Confidential Communications. 
 
 Section 909. Jurisdiction — Limited by terms of trust. 
 
 909a. Possession of trustee that of court — Interference with. 
 
 910. Danger to trust fund. 
 
 911. Resulting trusts, etc. 
 
 912. Constructive trusts. 
 
 912a. Transfer to trustee to pay income for life. 
 
 913. Federal control of public trusts in States. 
 
 914. Set-offs against trustee. 
 
 915. Charitable gifts. 
 
 916. Enforcements by attorney-general. 
 
 916a. Property in trust for religious organization. 
 
 917. Conflicting church trustees. 
 
 918. Departures from doctrine, etc. — Mere formal changes. 
 
 919. Diversion from donor's intended use. 
 
 920. Same subject. 
 
 921. Under the New York statute. 
 
 922. In case of independent churches — Majority rule. 
 
 923. Deposing pastors, etc. 
 923a. Same subject — Pleading. 
 
 923b. Property in trust for certain purpose — Injunction against use 
 
 for another purpose. 
 923c. Enjoining action by ward — For detention of ward. 
 
 C
 
 xsxiv Table of Contents. 
 
 Sbotcon 924. Protecting trade secrets, etc. — General rule. 
 
 925. Illustrations — Secret patterns, etc. 
 
 926. Same subject — Exceptions. 
 
 926a. Where disclosure of secret process consideration of employment 
 
 927. Attorney and client. 
 
 928. Partner's outside use of information. 
 
 929. Dissolution of injunction. 
 
 CHAPTER XXXI. 
 
 Relating to Wills and Decedents' Estates. 
 
 Sbotion 930. Establishing the validity of wills, etc. 
 
 930a. Injunctions in cases of administration — Purpose of. 
 
 931. Enforcing agreement in execution of will. 
 
 932. Forged will — Injunction — Laches. 
 
 932a. Execution of writ of assistance — Right of administrator to 
 enjoin. 
 
 933. Testamentary trust — Equitable action to enforce. 
 
 934. Murderer of testator prevented taking under will. 
 
 935. Limited equity jurisdiction. 
 
 936. Abuse of trust by executor, etc. — Fraud and waste — Incompe- 
 
 tency. 
 
 937. Arbitrating claims against estate. 
 
 937a. Misappropriation of personal property by stranger — Action by 
 
 next of kin. 
 937b Enjoining action to remove administrator. 
 
 938. Unlawful sales of realty. 
 
 939. Powers, defective execution of. 
 
 940. Restraining execution of power of sale. 
 
 941. When creditor may compel exercise of power. 
 
 942. Restraining the payment by executor of outlawed debts, 
 942a. Enjoining breach of covenant by executor. 
 
 943. Protecting assets from action at law, etc. 
 
 943a. Marshalling assets — Enjoining suit by creditor — Usury. 
 
 944. Foreign executors. 
 
 945. Enjoining sale of realty after unreasonable delay. 
 
 946. Enjoining judgment for and against executor. 
 
 947. Insolvency of executor, etc. 
 
 948. Where estate insolvent. 
 
 949. Set-offs. 
 
 950. Execution on property in executor's, etc., custody. 
 
 951. Accounting. 
 
 951a. Enjoining action by administration — Heirs necessary parties.
 
 Table of Contents. xxxv 
 
 CHAPTER XXXII. 
 Relating to Partners and Others Jointly Interested. 
 
 Section 952. Enforcing partnership rights and agreement — Clean hands. 
 
 952a. Same subject— Exclusion of partner— Refusal to carry out 
 agreement. 
 
 953. Same subject — Exceptions. 
 
 954. Protecting the partnership good will. 
 
 954a. Breach of covenant as to engaging in same business. 
 
 955. Injunction at creditor's suit. 
 
 956. Lessor and lessee as partners. 
 
 957. Joint owners. 
 
 958. Tenants in common. 
 
 958a. Same subject — Parties not strictly tenants in common. 
 
 959. Where one partner takes title. 
 
 960. Levy against partner and against firm. 
 
 961. Sale under judgment against co-partner. 
 
 962. Appointing receivers. 
 
 963. Appointing receivers on dissolution. 
 
 CHAPTER XXXIII. 
 
 Relating to Husband and Wife. 
 Section 964. Upholding contracts between them— Protecting her realty, 
 
 965. Protecting wife's realty from husband's creditors. 
 
 966. Protecting wife's dower and homestead rights. 
 
 967. Protecting wife's separate estate. 
 
 968. Protecting wife's estate from administrator, etc. 
 968a. Suit for divorce in another State. 
 
 969. Actions for divorce — Alimony — Decree lien on realty. 
 
 970. Same subject. 
 
 970a. Same subject — Statute construed. 
 
 971. Jurisdiction of alimony. 
 
 972. Wife's bad faith. 
 
 973. Husband's rights. 
 
 CHAPTER XXXIV. 
 Relating to Creditors and Debtors. 
 
 Bection 974. Fraudulent transfers by debtors — Parties. 
 
 975. Enjoining assignments for creditors — Preferences. 
 
 976. Fraudulent chattel mortgages. 
 
 977. Railroad creditors. 
 
 978. Attaching creditors. 
 
 979. Judgment creditor's right of selection. 
 
 980. Wife's creditor's bill. 
 
 981. General creditors without lien. 
 
 982. Sale of pledged commercial paper.
 
 xxxvi Table of Contents. 
 
 Section 983. Exemption of pension property. 
 
 984. Set-offs. 
 
 985. Debtors in bankruptcy — State jurisdiction. 
 
 986. Same subject — Federal jurisdiction. 
 
 987. Same subject. 
 
 987a. Same subject — Act of 1898. 
 987b. Same subject — Power of referee. 
 987e. Same subject — Right of appeal. 
 
 988. Insolvent corporation — Maritime liens. 
 
 989. Creditor's action against insolvent in another State, etc. 
 989a. Injunction as excusing failure to sue stockholders. 
 989b. Injunction granted at chambers. 
 
 CHAPTER XXXV. 
 
 Relating to Principal and Surety and Agent. 
 
 Section 990. General considerations. 
 
 991. Compelling creditor to proceed against principal debtor. 
 
 992. Pursuing principal debtor firsT. 
 
 99.3. Applying security for surety's benefit. 
 
 994. Where surety an apparent principal. 
 
 995. Sheriff's surety. 
 
 996. Set-off in favor of surety. 
 
 997. Principal and agent. 
 
 CHAPTER XXXVI. 
 
 Relating to Realty. 
 Section 998. If title in dispute. 
 999. Showing of title. 
 
 1000. Securing possession by injunction. 
 
 1001. Possession protected. 
 
 1002. Same subject. 
 
 1003. Where no title — Insolvency. 
 
 1004. To remove cloud on title. 
 
 1005. Cloud on title — Lien foreclosure, etc. 
 
 1006. Where defect apparent. 
 
 1007. Rights acquired by adverse possession — Preventing trespass. 
 
 1008. Vendor's lien. 
 
 1009. Enforcing conditions of deed — Forfeiture — Warranty. 
 
 1010. Proscription — Purpresture — Accretions. 
 
 1011. Protecting homesteads — Wyoming statute. 
 
 1012. Party walls. 
 
 1012a. Same subject continued. 
 
 1013. Eminent domain — Equity jurisdiction. 
 
 1014. Taking under eminent domain — Compensation. 
 1014a. Same subject — Relating to streets. 
 
 1014b. Same Subject — Pleading. 
 
 1015. Whore property only damaged.
 
 Table of Contents. xxxvii 
 
 CHAPTER XXXVII. 
 
 Relating to Easements. 
 
 Section 1016. Protecting visible easements. 
 
 1017. Easement and nuisance — General consideration. 
 
 1018. Plaintiff's right to be clear. 
 
 1019. Establishing right at law. 
 
 1020. Injury to be shown — Adequate remedy. 
 
 1021. Same subject. 
 
 1021a. Enjoining excessive use of easement. 
 
 1022. No injunction where compensation paid. 
 
 1023. Delay and acquiescence, etc. 
 
 1024. Protecting public privileges — Lateral support. 
 
 1025. Grantor's reserved right of way. 
 
 1026. Easement in street by purchaser of lot. 
 
 1027. Granted right of way — User. 
 
 1027a. Granted right of way— Right as to light and air. 
 '■ 1028. Right of way — Grant uncertain. 
 
 1029. Pleadings — Prescription. 
 
 1030. Abandoning easement to railroad company. 
 
 1031. Reserved light easement — Ancient lights. 
 
 1032. View obstruction. 
 
 1033. Changing natural flow of water. 
 
 1034. Natural flow — Water course. 
 
 1035. Restraining diversion of water — Pleadings and proof. 
 
 1036. Same subject — Plaintiff's delay — Mandatory injunction. 
 
 1037. Well-right — Reservoir — Title required. 
 
 1038. Prescriptive diversion of stream. 
 
 1039. Riparian owners. 
 
 1040. Drainage license — Irrigation. 
 
 1041. Irrigation. 
 
 CHAPTER XXXVIII. 
 
 Against Nuisance. 
 
 Section 1042. Definition and jurisdiction — Damages. 
 
 1042a. Awarding damages in injunction suit — Pleading. 
 
 1043. Nuisance from natural causes. 
 
 1044. Nuisance not to be illegal only — To be injurious. 
 
 1045. Same subject. 
 
 1046. Nuisances created by statute or ordinance — Wooden buildings 
 
 — Other structures. 
 
 1047. Wooden buildings. 
 1047a. Signboard on building. 
 
 1048. Statute remedy concurrent with injunction — Election. 
 
 1049. Police regulations — Eailroad grants, etc. 
 
 1050. Parties. 
 
 1051. Tenants as parties.
 
 xxxviii Table of Contents. 
 
 Section 1052. Joinder of abutting owners, etc. 
 
 1053. Parties in liquor nuisance suits. 
 
 1054. City enjoining county. 
 
 1055. Health board acting for city. 
 
 1056. Enjoining Federal receivers. 
 
 1057. Prescriptive right to maintain nuisance. 
 
 1058. When prescription has no application. 
 
 1059. Injunction to prevent prescription. 
 
 1060. Pre-existing nuisance. 
 
 1061. Estoppel, by acquiescence — Laches. 
 
 1062. Same subject. 
 
 1063. Acquiescence illustrated. 
 
 1064. Establishing the fact of a nuisance. 
 
 1065. Jury trial in New York, etc. 
 
 1066. Establishing right at law — Judicial discretion. 
 
 1067. Judicial discretion — Comparative injury, etc., considered. 
 
 1068. Quia timet injunctions — Hospitals. 
 1068a, Explosives. 
 
 1069. Contingent and speculative nuisance. 
 
 1070. Livery stables. 
 
 1070a. Livery stables — Ordinances. 
 
 1071. Enjoining nuisance before injury. 
 
 1072. Modified injunctions — Where nuisance can be avoided. 
 
 1073. Form and scope of injunction against nuisance. 
 
 1074. Indefinite injunctions. 
 
 1075. Mandatory injunctions. 
 
 1076. Effect of malicious motive. 
 
 1076a. Statute enjoining malicious erection of structure construed. 
 
 1077. Unreasonable use enjoined — Miscellaneous. 
 
 1078. Injunction of public nuisance not favored. 
 
 1079. Public nuisances — Limited power to enjoin. 
 
 1080. Same subject — Protecting public lands. 
 
 1081. Private injunction of public nuisance. 
 
 1081a. Private injunction of public nuisance continued. 
 
 1082. Private area way on public street. 
 10R2a. Public highway nuisance — General rule. 
 
 1083. Public highway nuisance continued. 
 
 1084. Same subject. 
 
 L084a. Where defendant conveys property pending suit. 
 109"). Discharging cesspools into public gutters. 
 10RP). Public wharf nuisance, etc. 
 
 1087. Wharf nuisance — Relative rights established. 
 
 1088. Nitroglycerine — Public nuisance. 
 Liquor Nuisance — Parties. 
 
 1090. Liquor nuisance. 
 
 1091. Liquor saloons, etc. — Pharmacy. 
 
 1092. Enjoining saloon where railroad workmen drink. 
 
 1093. Dumping hoard on city wharf. 
 101)4. Sewage and sewers. 
 
 1095. Party walls.
 
 Table of Contents. xxxix 
 
 Section 1096. .Nuisances to dwelling houses. 
 
 1097. Noise and vibration. 
 
 1098. Same subject. 
 1098a. Noisome smells. 
 1098b. Undertakers. 
 
 1099. Considerations of public utility. 
 
 1100. Abating filth on adjacent premises — Privies. 
 
 1101. Burial places — Jails. 
 
 1102. Dangerous and hurtful trades — Fertilizers. 
 
 1103. Same subject. 
 
 1104. Fat rendering — Jurisdiction. 
 
 1105. Pleasure garden — Theaters. 
 1105a. Skating rink. 
 
 1106. House of ill fame. 
 
 1107. Schools and churches — Ringing of bells. 
 
 1108. Same subject — Where nuisance is legalized. 
 
 1109. Bee hives. 
 
 1110. Nuisance to pleasure resorts. 
 
 1111. General rules — Polluting water. 
 1111a. Same subject application of rules. 
 1111b. Same subject — Prescriptive right. 
 
 1112. Same subject — Sanitariums — Percolations. 
 1112a. Same subject — Parties — Pleading. 
 
 1113. Diverting water from natural channel. 
 
 1114. As to subterranean water. 
 
 1115. Railroad embankment without culvert. 
 
 1116. Enjoining dams — Obstruction of stream. 
 
 1117. Obstructing navigable stream. 
 
 !117a. Dam authorized by legislature — Navigable stream. 
 
 1118. Increasing natural flow of water. 
 
 1119. Surface drainage. 
 
 1120. Same subject — Surface water. 
 
 1121. Same subject. 
 
 1122. Floating logs. 
 
 1123. Hydraulic mining debris. 
 
 1124. Brick manufactory. 
 
 CHAPTER XXXIX. 
 
 Against Trespass. 
 
 Section 1125. General rule. 
 
 1126. Simple trespass not usually enjoined. 
 
 1127. Where injury trifling, doubtful, etc. 
 
 1128. Trespasser not protected, etc. — Clean hands. 
 
 1129. Continuous and repeated trespass. 
 
 1130. To prevent multiplicity. 
 
 1131. Where trespass continuous only in limited sense. 
 
 1132. Aggravated trespass. 
 
 1133. Same subject — Excluding light and air.
 
 xi Table of Contents. 
 
 Sjktion 1134. Adequate remedy at law — Pleading want of equity. 
 
 1135. Same subject — Exceptions. 
 
 1136. Legal remedy continued. 
 
 1137. The Missouri rule. 
 
 1137a. Effect of recovery of damages. 
 
 1138. Effect of insolvency. 
 
 1139. When plaintiff's title in dispute. 
 1139a. Same subject — Qualification of rule. 
 
 1139b. Where property sold after action commenced. 
 
 1140. Determining title — Temporary injunction. 
 
 1141. Same subject — Defendant's title. 
 
 1142. Plaintiff must have possession. 
 
 1143. What is sufficient possession. 
 
 1144. Acquiescence — Where license abused. 
 
 1145. Effect of lapse of time, etc. 
 
 114G. Same subject — Continuous trespass. 
 
 1147. Taking for public use, etc. 
 
 1148. Trespass on public domain — Pre-emptors. 
 
 1149. Burial-place trespasses. 
 
 1150. Trespass by railroad company. 
 1150a. Timber trespasses. 
 
 1151. Timber trespasses continued. 
 
 1152. Same subject — Bond instead of injunction. 
 
 1153. Boring gas wells. 
 
 1154. Artificial channels which submerge adjacent land. 
 
 1155. Trespass to mines. 
 
 1156. Same subject — Trying title to mine. 
 
 1157. Same subject. 
 
 1158. Mining trespass on surface lands. 
 
 1159. Trespass by road officers. 
 
 1160. Trespass by railroad strikers — Mandatory injunction. 
 
 1161. Trespass on railroad land grants. 
 
 1162. Meander line on supposed lake. 
 
 1163. Tide land trespassers. 
 
 1164. Jurisdiction. 
 
 1165. Parties. 
 
 1166. Requisites of bill — Facts not conclusions. 
 
 CHAPTER XL. 
 
 Against Waste. 
 
 ■Section lit;:. Waste defined. 
 
 1168. Statutory waste enjoined. 
 
 1169. Alteration of demised premises. 
 
 1170. Insolvency and irreparable injury considered. 
 
 1171. Title in litigation — Injunction pendente lite. 
 
 1172. Writ of estrepement. 
 
 1173. Enjoining mortgagor in possession. 
 
 1174. Removal of fixtures by mortgagor.
 
 Table of Contents. sli 
 
 Section 1175. Enjoining vendee and vendor. 
 
 1176. As to building removed from mortgaged land. 
 
 1177. Removal of manure. 
 
 1178. Parties plaintiff. 
 
 1179. Enjoining co-tenant and life tenant. 
 
 1180. Tenant in dower. 
 
 1181. Waste of timber. 
 
 1182. Same subject. 
 
 1183. Equitable waste. 
 
 1184. Same subject. 
 
 1185. Waste of water. 
 
 1186. Injury and insolvency considered. 
 
 1187. Plaintiff's laches and misconduct. 
 
 1188. Account for damages. 
 
 CHAPTER XLI. 
 
 Against Taxes. 
 
 Section 1189. General rule. 
 
 1190. Reason of the rule. 
 
 1190a. Where adequate remedy at law. 
 
 1191. Adequate statutory remedy. 
 
 1192. Certiorari. 
 
 1193. Irregularities in the assessment. 
 
 1194. Same subject — Official discretion — Plaintiff's fault. 
 
 1195. Further illustrations. 
 
 1196. Restraining the execution of a deed. 
 
 1197. Cases where an injunction was denied. 
 
 1198. Prerequisites to injunction. 
 
 1199. Insolvency of assessor. 
 
 1200. General and special taxes. 
 
 1201. Same subject — Personal tax, etc. 
 
 1202. Inequalities in valuations. 
 
 1203. Collateral attack by injunction — Stock. 
 
 1204. Assessors and boards of review. 
 
 1205. Same subject — Findings by board, etc. 
 
 1206. Action of board reviewed. 
 
 1207. Unconstitutional statutes. 
 
 1208. Tendering sum due. 
 
 1209. Same subject — Estoppel, etc. 
 
 1210. Same subject — Additional illustrations. 
 
 1211. Fraud. 
 
 1212. Clouding the title. 
 
 1213. Same subject — Void assessments. 
 
 1214. Property not subject to taxation. 
 
 1215. Exempt property— Cemetery. 
 
 1216. Same subject — Montana and Tennessee. 
 
 1217. Restraining municipal taxes.
 
 xlii Table ok Contents. 
 
 Section 1218. Same subject— Illustrations. 
 
 1219. Controlli?ig municipal affairs. 
 
 1220. Municipal improvements — Council's discretion. 
 
 1221. Where a municipal tax has been restrained. 
 
 1222. Tax in aid of railroads, etc. 
 
 1223. Same subject. 
 
 1224. Further illustrations. 
 
 1225. Gratuities. 
 
 1226. Same subject. 
 
 1227. Qualification of officers, etc. 
 
 1228. Parties — One suing for others. 
 
 1229. Municipality a party. 
 
 1230. Joinder of parties. 
 
 1231. Parties to have interest in the land 
 
 1232. Taxpayer bound by his election. 
 
 1233. Void taxes. 
 
 1234. Illegal tax— West Virginia— Ohio. 
 
 1235. Res adjudicata. 
 123G. Personal property. 
 
 1237. Same subject — Rolling stock. 
 
 1238. Personal property in hands of assignee. 
 
 1239. Taxation of stock. 
 
 1240. National banks. 
 
 1241. Bank stock and property. 
 
 1242. Internal revenue tax. 
 
 1243. Property of third person. 
 
 1244. Levy after bill filed, etc. 
 
 1245. Non-residence. 
 
 1246. Multiplicity of suits. 
 
 1247. Federal interference, in States. 
 
 CHAPTER XLII. 
 
 Relating to Landlord and Tenant. 
 
 Section 1247a. Restraining summary proceedings, etc. 
 1248. Same subject. 
 
 1248a. Same subject— Dissolution of injunction. 
 1219. Mandatory injunctions in tenant's favor. 
 
 1250. Tenant's exemptions in Florida. 
 
 1251. Disturbing lessee's possession— Light and air. 
 
 12f, la. Interference with right of tenant to water-power. 
 1251b. Rights of sub-lessee— Purchaser of crops. 
 
 1252. In landlord's favor— Fixtures— Subletting. 
 ■';. Waste by tenant— Signs. 
 
 1254. Same subject. 
 
 i5. Restraining lessee's trade pending suit, etc. 
 1256. Remedy at law— Balancing inconvenience— Doubtful right.
 
 Table of Contents. xliii 
 
 CHAPTER XLIII. 
 
 Relating to Mortgages. 
 
 Section 1257. Preventing oppression by mortgagee. 
 
 1258. Enjoining foreclosure of mortgage. 
 
 1259. In cases of fraud and usury. 
 
 1260. In cases of undue influence. 
 1260a. Where other adequate remedy. 
 
 1261. Foreclosure where property is in receiver's hands 
 
 1262. Enjoining mortgagee from taking possession, etc. 
 
 1263. Enjoining sale under trust deed. 
 
 1264. Restraining power of sale — Grounds. 
 
 1264a. Same subject — Stock of merchandise — Collateral agreement. 
 
 1265. Set-off — Mortgage against judgment. 
 
 1266. Foreclosure by advertisement. 
 
 1267. Where mortgage debt tendered or paid. 
 
 1267a. Breach of condition by mortgagor — What essential to injunc- 
 tion — Excuse. 
 
 1268. Where mortgage not due — When injunction refused. 
 
 1269. Bond — Violation — Sureties. 
 
 1270. Parties — Defect of. 
 
 1271. Protecting lien and security of mortgagee. 
 
 1272. As between conflicting liens. 
 
 1273. Protecting junior chattel mortgagees, etc. 
 
 1274. Growing crops. 
 
 1275. At suit of purchasers, etc. — Cloud on title. 
 
 1276. Protecting sureties. 
 
 CHAPTER XLIV. 
 
 Relating to Municipal Corporations. 
 
 Section 1277. City council's discretion — If no jurisdiction. 
 
 1278. Staying municipal government. 
 1278a. Franchise not sold to highest bidder. 
 1278b. Ordinance violating contract rights. 
 
 1279. Protecting franchise granted by ordinance. 
 
 1279a. Franchise fixing rates — Ultra vires — Right to change by ordi- 
 nance. 
 
 1280. Other adequate remedy. 
 
 1281. Injury essential — Adequate remedy. 
 
 1282. City improvements. 
 
 1283. Same subject. 
 
 1284. Control of streets. 
 
 1285. Mandatory injunction in favor of city. 
 
 1286. Restraining indebtedness. 
 
 1287. Same subject. 
 
 1288. Interest on bonds — Parties. 
 
 1289. Invalid municipal ordinances. 
 
 1290. Same subject.
 
 xliv Table oe Contents. 
 
 Section 1291. Same subject — Private bridge over public alley. 
 
 1292. Ordinance passed by officers de facto. 
 
 1293. Ordinance in favor of railroad bonds — Parties. 
 
 1294. Invalid city contracts. 
 
 1295. Frame buildings within fire limits, etc. 
 
 1296. Removing appointive city officer. 
 
 1297. Diversion by city of public grounds. 
 
 1298. Enjoining authorized contract. 
 
 1299. Waste and misapplication. 
 
 1300. Misappropriation. 
 
 1301. Nuisance caused by city, etc. — Trespass. 
 
 1302. City enjoined by street railway, etc. 
 
 1303. Protecting abutting owners. 
 
 1304. City tax. 
 
 1305. Enjoining village incorporation, etc. 
 
 1306. Dispensary liquor act — County board enjoined. 
 
 1307. Parties — Joinder of taxpayers. 
 
 1308. Jurisdiction. 
 
 1309. Same subject. 
 
 1310. Miscellaneous. 
 
 CHAPTER XLV. 
 
 Relating to Streets and Highways. 
 Section 1311. Jurisdiction— Parties. 
 
 1312. Taking property without compensation. 
 
 1313. Where there is a statutory or adequate remedy. 
 
 1314. Private injury versus public benefit. 
 
 1315. Complainant's special injury. 
 
 1316. Discretion of road officers. 
 
 1317. Highway by prescription — Enjoining road officers. 
 
 1318. Protecting sidewalks and curbing. 
 1318a. Change of grade of street. 
 
 1319. Sidewalk assessments. 
 
 1320. Enjoining city from street nuisance. 
 
 1321. Sidewalk nuisance, etc. 
 1321a. Street obstructions. 
 
 1321b. Street encroachment? — Mandatory injunction. 
 
 1322. Abating obstructions — Relator — Estoppel. 
 1322a. Poles and wires in street. 
 
 1322b. Same subject — Noncompliance with statutory requirements — 
 
 Consent of local authorities. 
 1322c. Conduits in streets. 
 
 1323. Constructing streets on railroad track. 
 
 1324. Enjoining opening of road — Defective proceedings. 
 
 1325. Same subject. 
 
 1326. Same subject — In Indiana. 
 
 1327. Complainant estopped. 
 
 1328. Abutting owner's protection. 
 
 1329. Protecting purchaser of street lot. 
 
 1.330. Grantee's right to removal of obstructions.
 
 Table of Contents. xlv 
 
 CHAPTER XLVI. 
 
 Relating to Corporations Generally. 
 
 Section 1331. Interfering with corporate business, etc. 
 
 1332. Public enterprises favored. 
 
 1332a. Public service corporations — Discrimination. 
 
 1333. Suit by stockholders. 
 
 1334. Same subject. 
 1334a. Misapplication. 
 
 1335. In case of deviation from purpose of incorporation. 
 
 1336. Protecting stockholder from sale of stock. 
 
 1337. Enjoining sale of stockholders stock, etc. — Stock certificates. 
 
 1338. Election of directors — Meetings — By-laws. 
 
 1338a. Fraternal and social organizations — Rights of members — Ex- 
 pulsion of. 
 
 1339. Expulsion of members continued. 
 
 1340. Nuisance by corporation. 
 
 1341. Iron Hall Association. 
 
 1342. Restraining corporate officers from patent infringement*. 
 
 1343. Restraining consolidation. 
 
 1344. Ultra vires — Monopoly. 
 
 1345. Ultra vires — Acquiescence. 
 
 1346. Injunction with receivership — Insolvency. 
 
 1347. Enjoining use of corporate name. 
 
 1348. Protecting corporate officers. 
 
 1349. Adequate remedy at law — Absence of injury. 
 
 CHAPTER XLVII. 
 
 Relating to Railroad Corporations. 
 
 Section 1350. Preventing abuse of eminent domain — Parties. 
 
 1351. Same subject. 
 
 1352. Injunction pending condemnation. 
 
 1353. Same subject. 
 
 1353a. Contract giving right of way — Breach of by railroad company. 
 
 1354. Condemning railroad land by another company. 
 
 1354a. Telegraph line on railroad right of way — Electric light line, 
 
 1355. Company's bond in doubtful cases — Company's discretion. 
 
 1356. Acquiescence. 
 
 1357. Landowner's acquiescence. 
 
 1358. Temporary injunction as part of seasonable application. 
 
 1359. Grade crossing by another company. 
 
 1360. Interstate roads — Taxation. 
 
 1361. Same subject. 
 
 1362. Passageways under railroad — Crossings. 
 
 1363. Invalid ordinance in favor of company. 
 
 1364. State regulation of U. S. railroad. 
 
 1365. Railroad on street — Abutters' rights.
 
 xlvi Table of Contents. 
 
 Section 1365a. Same subject continued — Qualifications. 
 
 1366. Railroad grantee's easements. 
 1366a. Electric street railways generally. 
 
 1367. Electric railroads — Conflicting franchises — Acquiescence — Cleat. 
 
 hands. 
 
 1368. Municipal control of tracks, etc. — Franchise protected. 
 
 1369. Trespass on railway property — Crossing tracks. 
 
 1370. Nuisance by railroad — Service of injunction. 
 
 1371. Joinder of injunction and damages — Elevated roads. 
 
 1372. Appeals. 
 
 CHAPTER XLVIII. 
 
 Relating to Public Officers. 
 
 Section 1372a. Acts in violation of law. 
 
 1372b. Acts in excess of authority — Pure food commissioner. 
 
 1373. Political and ministerial duties — State secretary. 
 
 1374. Courts versus county commissioners. 
 
 1375. County officers — Remedy at law. 
 
 1376. Same subject — Official discretion. 
 
 1377. Same subject — Doubtful cases. 
 
 1377a. License — Power of official to revoke — Limitation on — Moving 
 
 picture shows. 
 1377b. Against police officials generally. 
 
 1377c. Against police officials continued — Watching premises. 
 1377d. Against police officials concluded — Trespass by. 
 
 1378. School officers. 
 
 1379. Road officers. 
 
 1379a. Power of board of estimate and apportionment in New York 
 city. 
 
 1380. Protecting de facto officers — Removal of officers. 
 
 1381. Quo warranto instead of injunction — Mandamus. 
 
 1382. Restraining waste of public funds. 
 
 1383. United States officers. 
 
 1383a. State railroad commission — Rates — Jurisdiction of Federal 
 
 court to join. 
 1383b. Same subject continued. 
 
 1384. Federal restraint of State officers. 
 
 1385. Same subject — Where State is party. 
 
 CHAPTER XLIX. 
 
 Relating to Elections. 
 
 Section 1.386. Enjoining notices of elections — Political considerations. 
 1386a. Holding of election. 
 
 1386b. Canvassing returns and declaring result. 
 1386c. Matters in connection with election generally. 
 1387. Election returns, etc. — Political matters.
 
 Table op Contents. xlvii 
 
 Section 1388. Enjoining issuance of certificates. 
 
 1389. Adequate remedy — No injury — Contents. 
 
 1390. County seat — Election to remove — Conflict — Annexation of ter- 
 
 ritoiy to municipality. 
 
 CHAPTER L. 
 
 Pleading and Practice; Miscellaneous. 
 
 Section 1391. Jurisdiction. 
 
 1392. The modern mandatory injunction. 
 
 1393. Temporary injunctions in Minnesota. 
 
 1394. Abolishing distinction between law and equity actions — Effect. 
 
 1395. Injunction and prohibition compared. 
 
 1396. Demurrable bills. 
 
 1397. Bills not demurrable. 
 
 1398. General or joint demurrers, etc. 
 
 1399. Amending pleadings — Federal practice. 
 
 1400. Damages as incidental to injunctions — Specifications. 
 
 1401. Dismissal of bill— Plaintiff's right to. 
 
 1402. Dismissing bill on dissolving injunction — Answer as affidavit. 
 
 1403. Supplemental bills. 
 
 1404. Answers — Modifying injunction on — Oath waived. 
 
 1405. Cross bill — Supplemental cross bill. 
 
 1406. Answer as cross bill. 
 
 1407. Where sufficient equity appears at the hearing. 
 
 1408. Referring questions of fact to a jury in injunction suits. 
 
 1409. Findings— Costs. 
 
 1410. Appeals. 
 
 1411. Appeals — Practice. 
 
 1412. Discharging irregular injunction — Appeal. 
 
 1413. Supreme Court injunctions — Mandamus. 
 
 1414. Liability on bond for counsel fees — Parties to action. 
 
 1415. Damages where motion to dissolve heard at trial, etc. 
 
 1416. Violation of injunction as contempt. 
 
 VOLUME III 
 
 Table of Cases. 
 Index.
 
 I2STJTJ NOTIONS 
 
 CHAPTER I. 
 
 Definition and Nattjee of Injunctions. 
 
 Section 1. Injunctions defined. 
 
 2. Injunctions further defined and described — Their flexibility. 
 2a. Object and purpose of writ or order. 
 
 3. Injunctions as in personam — Compared with attachments. 
 
 4. Parties' agreement operating as injunction. 
 
 5. Injunctions as affected by statute. 
 
 6. Injunction and receiver. 
 
 7. Injunctions as related to specific performance. 
 
 8. Injunction in aid of attachments. 
 
 9. Injunction compared with mandamus, certiorari and quo warranto. 
 9a. Injunction and prohibition compared. 
 
 10. Injunction and damages in the same action. 
 
 11. Damages in lieu of injunction. 
 
 12. Damages in lieu of injunction — Lord Cairn's Act. 
 
 13. No private injunction to protect public rights. 
 13a. Same subject — Rule illustrated. 
 
 14. Clean hands. 
 
 15. Same subject — Patent causes. 
 
 16. Same subject — Where injunction an evasion of just dues. 
 
 17. Imminent injury as ground of injunctive relief. 
 
 18. Same subject — The Tennessee rule. 
 
 19. Same subject — Where plaintiff not harmed. 
 
 20. Clear violation of plaintiff's right — Balancing equities. 
 
 21. Where plaintiff's rights are doubtful. 
 
 22. Same subject — Patent causes. 
 
 23. Same subject — Unsettled questions of law. 
 
 24. Same subject — Trifling grievances. 
 
 25. Balance of convenience in doubtful cases. 
 
 26. Adequacy of legal remedy — General rule. 
 
 26a. Adequacy of legal remedy — What essential to. 
 26b. Adequacy of legal remedy — Application of rule. 
 
 27. The same subject. 
 
 28. Same subject — Further illustrations. 
 
 29. Same subject — Certiorari and appeal. 
 
 30. Injunction not granted where mandamus is appropriate. 
 
 31. Where legal remedy inadequate.
 
 § 1 Definition and Nature of Injunctions. 
 
 Section 32. Adequate remedy in Federal courts. 
 
 33. Enjoining trespass and nuisance though legal remedy exists. 
 
 34. Where a party has a remedy by his own act. 
 
 35. Irreparable injury to be threatened — Injunction to prevent.* 
 
 36. Irreparable injury — What is. 
 
 37. Rules illustrated generally. 
 
 38. Same subject — Public taking of private property. 
 
 39. Threatened injury — Must be irreparable. 
 39a. Same subject — Application of rule. 
 39b. Same subject — Abating liquor nuisance. 
 
 40. Same subject — Exceptions. 
 
 41. No injunction for past acts. 
 
 41a. Same subject — Application of rule. 
 
 42. Laches and acquiescence — General rule. 
 42a. Laches and acquiescence — Rule illustrated. 
 
 43. Same subject — When laches no defense. 
 
 44. Same subject — In England. 
 
 45. Injunction in foreign countries. 
 
 46. Effect of injunctions on statute of limitations. 
 
 Section 1. Injunctions defined. — In a general sense, every 
 order of a court which commands or forbids is an injunction; 1 
 but in its accepted legal sense, an injunction is a judicial process 
 or mandate operating in personam by which, upon certain estab- 
 lished principles of equity, a party is required to do or refrain 
 from doing a particular thing. 2 An injunction has also been 
 
 1. Woerishoffer v. North River the exigency of the icrit." Story, Eq, 
 Const. Co., 99 N. V. 398, 402, 2 N. E. Jur. sec. 861. Cited in United States 
 47. See N. Y. Code Civ. Proc. sec. v. Haggerty, 116 Fed. 510, 515; 
 767. Wangelin v. Goe, 50 111. 459, 463; 
 
 The term is indiscriinately ap- see also Pelzer, Rodgers & Co. v. 
 
 plied to interlocutory orders in the Hughe3. 27 S. C. 408, 414, 3 S. E. 
 
 nature of injunctions though not en- 781. This definition has been gener- 
 
 forced by means of the writ of in- ally adopted by subsequent authors 
 
 junction. Michigan Cent. R. R. Co. but in the State of New York wliere 
 
 v. Northern Indiana R. R. Co., 3 Ind. the writ of injunction is abolished 
 
 23D, 241. Per Smith, J. and an injunction order substituted, 
 
 2. Beach, Mod. Eq. Jur. sec. 368; it is plain that the word process doss 
 Story, hq. Jur. sec. 861 ; Abbott, Law not accurately define or describe the 
 Diet. tit. Injunction. Story defines temporary injunction. See N. Y. 
 an injunction as " a judicial process Code I iv. Proc. sees. 602, 603, 604. 
 whereby a party is required to do a A similar state of things exists in 
 particular thing or to refrain from several other of the states and in 
 doing a particular thing according to England. See sec. 5, post.
 
 Definition and Nature of Injunctions. 
 
 §1 
 
 defined as a writ framed according to the circumstances of the case, 
 commanding an act which the court regards as essential to justice, 
 or restraining an act which it esteems contrary to equity and good 
 conscience ; 3 as is a remedial writ which courts issue for the pur- 
 pose of enforcing their equity jurisdiction; 4 and as a writ issuing 
 by the order and under the seal of a court of equity. 5 A similar 
 
 Injunction a mandate. — It is 
 
 held in Boon v. McGucken, 22 N. Y. 
 Eupp. 424, that an injunction order 
 is a mandate within section 14 of the 
 New York Code of Procedure which 
 empowers courts of record to punish 
 by fine and imprisonment disobedi- 
 ence to a lawful mandate by which a 
 remedy of a party to a civil action 
 pending in the court may be defeated 
 or prejudiced. That an injunction 
 order is a mandate. See also People 
 v. Dwyer, 90 N. Y. 410. In the Mary, 
 land Act of 1886 (Code, art. 16, sec. 
 177), it is provided that the court 
 may order the issue of a " mandate 
 or injunction " commanding any 
 party " to do or abstain from doing 
 any act." In this statute the word 
 mandate seems to be used as equiva- 
 lent to tne word injunction. A final 
 or perpetual injunction is a final de- 
 cree, judgment or sentence and is con- 
 sidered in chapter III, post, sees. 107, 
 108. 
 
 Statutory and code definitions. 
 — An injunction is a command to re- 
 frain from a particular act. 
 
 Arkansas.— Di*. Ark. Stat. 1894, 
 sec. 37 75. 
 
 Indian Territory. — Ann. St. Ind. 
 Terr. 1899, sec. 2487. 
 
 Kansas. — Kan. Gen. Stat. 1905, sec. 
 5132. 
 
 Nebraska.— Neb. Ann. Code, 1901, 
 sec. 1229. 
 
 Ohio.— Bates Ann. Stat. 1905, sec. 
 5571. 
 
 Wyoming.— Rev. Stat. Wyo. 1899, 
 sec. 4038. 
 
 An injunction is a writ or order 
 requiring a person to refrain from a 
 particular act. It may be granted by 
 the court in which the action is 
 brought, or by a judge thereof; and 
 when granted by a judge it may be 
 enforced as an order of the court. 
 Cal. Code Civ. Proc. 1903, sec. 525, 
 as amended by act approved March 
 16, 1907, ch. 272, sec. 1, Stats, and 
 amend, to Code of Cal. 1907; Idaho 
 Code Civ. Proc. 1901, sec. 3283; Mont. 
 Code Civ. Proc. sec. 172; Nev. Comp. 
 Laws, 1900, sec. 3206. 
 
 An injunction is an order requiring 
 a defendant in a suit to refrain from 
 a particular act. Ballinger & Cot- 
 ton's Ann. Codes and Stats, of Ore- 
 gon, 1902, sec. 417. 
 
 An injunction or prohibition is a 
 mandate obtained from a court by a 
 plaintiff prohibiting one from doing 
 an act which he contends may be in- 
 jurious to him or impair a right 
 which he claims. La. Code of Prac- 
 tice, art. 296; Dupre v. Anderson, 45 
 La. Ann. 1134. 13 So. 743. 
 
 3. Commercial Bank of Rodney v. 
 State, 4 Sm. & M. (Miss.) 439, 514, 
 citing Jeremy, Eq. Jurisdiction 307. 
 
 4. McDonogh v. Calloway, 7 Rob. 
 (La.) 442, 444. 
 
 5. Michigan Cent. R. R. Co. v. 
 Northern Ind. R. R. Co., 3 Ind. 239, 
 241. Per Smith, J.
 
 I 2 Definition and Nature of Injunctions. 
 
 writ to this was in use in the days of the Roman Empire, and has 
 always been in use in England from the foundation of the common 
 law. It has been in use in this country since the organization of 
 the government. 6 Prior to Lord Eldon's time, injunctions were 
 rarely issued by courts of equity. During the many years he sat 
 upon the woolsack this remedy was resorted to with increasing 
 frequency, and with the development of equity jurisprudence, 
 which has taken place since his time, it is well said that the writ 
 of injunction has become the right arm of the court. 7 The writ of 
 injunction bears some analogy to the writs of prohibition and 
 estrepement which were formerly granted by courts of law in 
 cases of waste, and seems to have superseded them in England 
 because they were found to be inadequate. 8 But the writ of 
 estrepement has been recognized as in existence in Pennsyl- 
 vania, and in 1884 an injunction was refused in that State 
 to prevent threatened waste as it did not appear that the 
 estrepement would be inadequate. 9 In the Scotch law, inhi- 
 bition is an injunctive writ to restrain sale of land in 
 prejudice of a debt; also a writ to prohibit credit being 
 given to a wife, at the creditor's peril. 10 An injunction will not 
 be' granted where the wrongful acts sought to be enjoined affect 
 reputation merely. Thus a court of equity will not interfere by 
 injunction to prevent a master of a Masonic lodge from being 
 suspended from his office, it not being one of profit. 11 
 
 § 2. Injunctions further defined and described; their flexi- 
 bility. — Injunction has been styled the " strong arm " of equity 
 to be used only to prevent irreparable injury to him who seeks its 
 aid. 12 The writ which is exclusively an equitable remedy, 13 goes 
 
 6. United States v. Haggerty, 116 308. See Kulp v. Bowen, 122 Pa. 
 Fed. oin, 515. St. 78. 
 
 7. Campbell v. Seaman, 63 N. Y. lO. Abbott's Law Diet. tit. Inhibit. 
 568, 582, 20 Am. Rep. 567. Per Earl, 11. Mead v. Stirling, 62 Conn. 586, 
 J. 27 Atl. 591. 
 
 8. Story, Eq. Jur. sec. 864; Jeffer- 12. MacLaury v. Hart, 121 N. Y. 
 son v. Bishop of Durham, 1 Bos. & P 636, 643. 24 N. E. 1013. 
 
 105, 120. 13. Sherman v. Clark, 4 Nev. 138, 
 
 9. Leininger's Appeal, 106 Pa. St. 141, 97 Am. Dec. 516.
 
 Definition and Natube of Injunctions. 
 
 §2 
 
 to persons, and not to courts, and this is said to be true whether it 
 be limited to questions publici juris or extended to the adjustment 
 of private rights. 14 It cannot exist in parol, but must be reduced 
 to writing. 15 This was the rule in chancery, 16 and often appears 
 in the clear implication of statutes. 17 As a remedy for preventing 
 wrongs and preserving rights the injunction has been regarded as 
 more flexible and adjustable to circumstances than any other 
 process known to the law. 18 The correctness of this estimate is 
 seen in the readiness with which injunctions yield to the con- 
 venience of parties ; 19 the ease with which damages are substituted 
 in their place when justice and the public interest so require; 20 
 the facility with which a preventative and a mandatory injunction 
 are made to co-operate so that by a single exercise of equitable 
 power an injury is both restrained and repaired ; 21 and the facility 
 with which injunctive relief can be applied to new conditions and 
 adjusted to the changing emergencies of modern enterprise. 22 In 
 
 14. State v. District Court, 24 
 Mont. 539, 562, 63 Pac. 395. See also 
 Gregg v. Mass. Med. Soc, 111 Mass. 
 185, 15 Am. Rep. 24. 
 
 15. Kiser v. Lovett, 106 Ind. 325, 
 327, 6 N. E. 816. 
 
 16. 2 Daniell Ch. Pr. 1672. 
 
 17. Ind. R. S. of 1881, sec. 1155. 
 
 18. Tucker v. Carpenter, 24 Fed. 
 Cas. No. 14,217, Hempstead, 440. 
 
 19. Section 25, post. 
 
 20. Sections 12, 13, post. 
 
 21. Ex parte Chamberlain, 55 Fed. 
 704. 709. 
 
 22. Toledo, etc... R. Co. v. Pennsyl- 
 vania Co., 54 Fed. 746, per Ricks, J.: 
 " It is said the orders issued in this 
 case are without precedent. Every 
 just order or rule known to equity 
 courts was born of some emergency, 
 to meet some new conditions, and was, 
 therefore, in its time, without a prece- 
 dent. If based on sound principles 
 and beneficent results follow their en- 
 forcement, affording necessary relief 
 
 to the one party without imposing il- 
 legal burdens on the other, new reme- 
 dies and unprecedented orders are not 
 unwelcome aids to the chancellor to 
 meet the constantly varying demand 
 for equitable relief. Mr. Justice 
 Brewer, sitting in the Circuit Court 
 for Nebraska, said: 'I believe most 
 thoroughly that the powers of a court 
 of equity are as vast and its processes 
 and procedure are as elastic as all 
 the changing emergencies of increas- 
 ingly complex business relations and 
 the protection of rights can demand.' 
 Mr. Justice Blatciiford, speaking for 
 the Supreme Court in Joy v. St. Louis, 
 138 U.S.I, 11 S. Ct. 243, 34 L. Ed. 
 843, said : ' It is one of the most use- 
 ful functions of a court of equity that 
 its methods of procedure are capable of 
 being made such as to accommodate 
 themselves to the development of the 
 interests of the public in the progress 
 of trade and traffic by new methods of 
 intercourse and transportation.' "
 
 § 2 Definition and Natuee of Injunctions. 
 
 this connection it has been declared that a writ of injunction may 
 be said to be a process capable of more modifications than any other 
 in the law; it is so malleable that it may be moulded to suit the 
 various circumstances and occasions presented to a court of equity. 
 It is an instrument in its hands capable of various applications for 
 the purposes of dispensing complete justice between the parties. 
 It may be special, preliminary, temporary, or perpetual ; and it 
 may bs dissolved, revived, continued, extended, or contracted; in 
 short it is adapted, and is used by courts of equity as a process 
 for preventing wrong between, and preserving the rights of parties 
 in controversy before them. 23 This suppleness of the injunctive 
 hand of equity is shown in an interesting manner in a case in New 
 York, where the Court of Appeals took advanced ground in holding 
 that an attaching creditor could have the aid of an injunction, but 
 that the measure of relief thereby to be granted was discretionary 
 with the court and might be limited to a decree enjoining interfer- 
 ence with the attached property until the creditor's right to follow 
 the attachment with an execution should be adjudged; and also, 
 in view of the vital importance it often is to the plaintiff to be ab'e 
 to enjoin the defendant at the very instant when he is apprised 
 an action is commenced against him, ruled that a preliminary 
 injunction might be granted before the issuing of the summons 
 but would not be operative until the service of the summons. 24 So, 
 
 23. TuckeT v. Carnenter. 24 Fed. great sovere'gn and infallible remedy 
 
 C»s. No. 14 217 TTenipst. 440. per — the legal panacea for every ill that 
 
 Johnson,. J., quoted in Sproat v. may arise in the complicated affairs 
 
 Durlnnd 2 Okla. 24, 43. of man. But. unfortunately, perhaps, 
 
 Examine in this cn-mee'i'on Shor- the writ of injunction does not nos- 
 man v. Clark 4 Nev. 138 140, sess these marvelous virtues and lim- 
 Wnerein it is said: "The facility itless powers. Its office is limited, 
 witn wliich injunctions have been ob- and it is generally employed only as 
 t;i inod from the courts in this State an auxiliary remedy." Per Lewis J. 
 seems to have made the application 24. People ex rel. CaufFman v. Van 
 for them almost a matter of course Buren, 136 N. Y. 252, 32 N. E. 775. 
 in every conceivable charae'er of a Tn Mansfield Coal & Coke Co. v. Mel- 
 case. When the law appears to af- Ion, 152 Pa. St. 286. 25 Atl. 601, the 
 ford no specific remedy for some petty preliminary injunction to prevent 
 annoyance or imaginary wrong, this the surface owner from drilling 
 writ is applied for as if it were the through underlying strata of coal
 
 Definition and Natuee of Injunctions. 
 
 §2a 
 
 too, if a party cannot at once comply with an injunction without 
 being put to great expense or grievous annoyance, the court may 
 order that the injunction do not commence until after a, certain 
 stated period. 25 
 
 § 2a. Object and purpose of writ or order. — The object of this 
 writ or order is generally protective and preventative, rather than 
 restorative, though it is not necessarily confined to the former. 26 
 It is ordinarily used to prevent wrongs and injuries either to per- 
 sons or to their property. It may also in some cases be used to 
 reinstate the rights of persons to property of which they have been 
 deprived. And it is said to be the most efficient, if not the only, 
 remedy to stay irreparable injury, and to punish those who disobey 
 the order of a court granting the writ. 27 So in a case in New York 
 it is declared that " The object of the process of injunction is both 
 preventative and protective. It seeks to prevent a meditated 
 wrong and not to redress an injury, which can usually be done only 
 
 which he had granted to another, in 
 order to reach the strata under the 
 coal which were his was partly 
 granted and partly denied and both 
 plaintiff and defendant were required 
 to furnish bonds to each other and 
 was subsequently modified on defend- 
 ant's giving a further bond; but in 
 Chartiers Block Coal Co. v. Mellon. 
 152 Pa. St. 286, 25 Atl. 597, the limit 
 of injunctive plasticity was reached 
 and the court declined to exercise its 
 jurisdiction, leaving the solution of 
 the difficulty to the legislature. 
 
 25. Attorney-General v. Bradford 
 Canal Proprietors, L. R. 2 Eq. 71, 
 where the injunction was ordered to 
 commence eigiit months after the date 
 of the decree. And in Chapman v. 
 City of Rochester. 110 N. Y. 273, 277, 
 18 N. E. 88, 6 Am. St. R. 366, it was 
 left to the Supreme Court to say how 
 long the issuing of the injunction 
 should be postponed under the pecu- 
 
 liar circumstances of that case. 
 
 26. Wangelin v. Goe, 50 111. 459; 
 Palmer v. Foley, 36 N. Y. Super. Ct. 
 14. 
 
 Injunction is a preventive 
 remedy. 
 
 United States. — Lacassogue v. Cha- 
 pius. 144 U. S. 119, 12 Sup. Ct. 659, 
 36 L. Ed. 368. 
 
 Illinois. — Baxter v. Board of Trad-j 
 of City of Chicago, 83 111. 146; Fisher 
 v. Board of Trade of City of Chicago, 
 80 111. 85. 
 
 Kentucky. — City National Bank r, 
 Guyun, 6 Bush. 486. 
 
 Maryland. — Washington University 
 v. Green, 1 Md. Ch. 97. 
 
 New Jersey. — Attorney-General v. 
 New Jersey R. R. & T. Co., 3 N. J. 
 Eq. 136. 
 
 South Carolina. — Brooks v. South 
 Carolina R. Co., 8 Rich. Eq. 30. 
 
 27. United States v. Haggerty, 116 
 Fed. 510, 515.
 
 §3 
 
 Definition and Natube of Injunctions. 
 
 at law, and then to protect the party against any unlawful invasion 
 of his rights'." 28 And the granting of an injunction will not be 
 denied on the ground that it would be a novel application of the 
 injunction as the principle underlying the right to this remedy 
 will be extended from time to time to meet new conditions and 
 emergencies. 29 An injunction is also held to be an appropriate 
 remedy for a violation of all statute rights. 30 
 
 § 3. Injunctions as in personam ; compared with attachments. 
 
 — The enjoinee to whom an injunction is addressed must be within 
 the reach of the court and must bear such a character as shall 
 render him personally amenable to its jurisdiction. 31 An injunc- 
 tion being in personam should not be granted against executors on 
 account of acts done by the testator. 32 It is because an injunction 
 acts primarily in personam and not merely in rem, that a court of 
 equity may, where a person against whom injunctive relief is 
 sought is within the jurisdiction, restrain and control him in respect 
 to property, and to his acts without the jurisdiction. 33 Thus, if a 
 
 28. Palmer v. Foley. 45 How. Prac. 
 (N. Y.) 110, 118. Per Monell, J., 
 
 quoted in Armitage v. Fisher, 4 Misc. 
 R. 315, 24 N. Y. Supp. 650. 
 
 29. Nashville C. & St. L. Ry. Co. 
 v. McConnell, 82 Fed. 65. The court 
 said: "It must be recognized that 
 jurisprudence, both legal and equit- 
 able, both in respect of the right and 
 the remedy, is progressive, that it is 
 exhaustive, and that, while its great 
 principles remain good for one time 
 as well as another, these principles 
 must be extended to new conditions, 
 and this involves an extension of the 
 remedy, and often a change in the 
 form of the remedy." Per Clark, J. 
 
 30. Livingston v. Van Ingen. 9 
 Johns. (N. Y.) 507, 536, wherein it 
 was said : " The remedy is contem- 
 poraneous and concurrent with the 
 grant itself, and cannot be separated 
 from it." 
 
 31. Thus in Carron Iron Co. v. 
 Maclaren, 5 H. L. 416, 436, the court 
 said : " If creditors who can be 
 reached here can be enjoined from 
 taking proceedings against a fund 
 abroad, the creditors there who can- 
 not be reached here will carry off all 
 the property. The Court of Chancery 
 is really powerless as to them, since 
 it has not funds in its own hands, 
 and they are not within its jurisdic- 
 tion." See Kerr, Injunc. 6. 
 
 32. Kirk v. Todd, L. R. 21 Ch. D. 
 487. 
 
 33. Cole v. Cunningham, 133 U. 
 S. 107, 117, 118, 10 S. Ct. 269. 33 
 L. Ed. 538; Penn v. Lord Baltimore, 
 1 Ves. Sen. 444 Kerr, Injunc. 6. 
 In Phelps v. McDonald, 99 U. S. 298, 
 308, 25 L. Ed. 473, Swayne, 
 J. : " Where the necessary parties 
 are before a court of equity it is 
 immaterial that the res of the contro- 
 
 S
 
 Definition and Nature of Injunctions. 
 
 §± 
 
 court of equity have jurisdiction of the person of defendant it may 
 compel him to discharge an apparent cloud upon the title to land 
 situated in another State. 34 An injunction in this essentially per- 
 sonal operation is distinguished from an attachment which is 
 directed primarily against the property of defendant, and, if he 
 does not appear, is in its essential nature a proceeding in rem, the 
 only effect of which is to subject the property attached to the 
 payment of the: demand which the court may find due to the 
 plaintiff. 35 
 
 § 4. Parties' agreement operating as injunction. — Where an 
 injunction order is procured but service is deferred by agreement, 
 to await the result of negotiations for a settlement of the contro- 
 versy, it being agreed that the rights of the parties shall remain 
 in statu quo it is held that the agreement has the effect of an 
 injunction pendente lite, preserving the rights of the parties in 
 statu quo pending the negotiations. 36 And the enjoinor who has 
 filed a bill may by his stipulation incur a liability in respect to 
 
 versy, whether it be real or personal 
 property, is beyond the territorial 
 jurisdiction of the tribunal. It has 
 the power to compel the defendant to 
 do all things necessary, according to 
 the lex loci rei sitae which he could 
 do voluntarily, to give full effect to 
 the decree against him. Without re- 
 gard to the situation of the subject 
 matter, such courts consider the equi- 
 ties between the parties, and decree 
 in personam according to those equi- 
 ties, and enforce obedience to those 
 decrees by process in personam." 
 
 34. Remer v. Mackay, 35 Fed. 86, 
 the court : " This is a proceeding in 
 equity and as a rule acts wholly in 
 personam. It operates upon the con- 
 science of defendant by decreeing hira 
 to do or refrain from doing some 
 special act; and the general effect and 
 scope of a decree in a court of equity 
 is aimed at the volition or conscience 
 
 of the defendant. This court having 
 personal jurisdiction of the defendant 
 in this case, can direct its decree 
 upon him, and compel him to do what 
 is equitable and right under the cir- 
 cumstances. . . . The court is not 
 asked to pass upon the title to this 
 land but only to say whether the de- 
 fendant shall be compelled to release 
 and discharge an apparent claim upon 
 title if the court shall find that he in 
 equity ought to do so. The case made 
 by the bill is not that of two conflict- 
 ing titles, but is that the defendant 
 has attempted to divest Mrs. Remer 
 of her title by a judicial proceeding 
 which is void." 
 
 35. Cole v. Cunningham, 133 U. S. 
 107, 116, 10 S. Ct. 269, 33 L. Ed. 
 538; Cooper v. Reynolds, 10 Wall. 
 308, 318, 19 L. Ed. 931. 
 
 36. Waterman v. Clark, 58 Vt. 601, 
 2 Atl. 578. 
 
 9
 
 §5 
 
 Definition and Nature of Injunctions. 
 
 the property which is the subject of the injunction quite similar 
 to that ordinarily arising from an injunction bond. 37 And when 
 it is not fully clear that plaintiff is entitled to an injunction to 
 prevent a. patent infringement and the injunction would be 
 disastrous to the defendant, he may sometime® be allowed to 
 furnish plaintiff a bond of indemnity instead of being enjoined. 38 
 So where the parties to a suit have by stipulation deposited funds 
 in the hands of a depository of the court an injunction may lie to 
 prevent interference with the funds by the defendant pending a 
 second suit to determine the plaintiff's equities. 39 The parties 
 cannot, however, by any contract or stipulation in advance relieve 
 the court from its duty of exercising a sound discretion in all mat- 
 ters of injunction; 40 and an injunction should not be granted in 
 an improper case, even on the consent of both parties, to the preju- 
 dice of third persons. 41 
 
 § 5. Injunctions as affected by statute. — In the State of New 
 York the writ of injunction has been abolished and an injunction 
 
 37. Where one, who has filed a bill 
 to enjoin the sale of property, asks to 
 have the property left in his custody 
 during che pendency of the litigation, 
 upon terms that he return it when so 
 ordered, the court can make an affirm- 
 ative order compelling him to return 
 or pay the value of the property. 
 Moore v. Diament, 41 N. J. Eq. 612, 
 7 Atl. 500. 
 
 38. Dorsey Co. v. Marsh, 6 Fish. 
 Pat. Cas. 387; Wells v. Gill, 6 Fish. 
 Tat. Cas. 89; Middlings Purifier Co. 
 v. Christian, 4 Dill. 448; Chipman 
 v. Wont worth 5 Fish. Pat. Cas. 302. 
 
 39. Pending suit to recover land 
 which was in demand for settlement, 
 the parties made a stipulation agree- 
 ing upon a special commissioner, sub- 
 ject to the approval of the court to 
 tuke possession of and sell under the 
 terms of the stipulation, all lands in 
 dispute; and such commissioner had 
 
 in the depository of the court a large 
 sum, proceeds of such sales, which, 
 under the stipulation, would be turned 
 over to the defendant. The suit was 
 dismissed without prejudice. Held 
 that, as the bill in a second suit to 
 recover the land showed a primary 
 equity in such lands and their pro- 
 ceeds, and the commissioner was a 
 party defendant thereto, an injunc- 
 tion should be granted to prevent the 
 transfer, payment etc., of any 
 moneys, credits, contracts, etc., de- 
 rived from the sale of the land", not- 
 withstanding defendant's alleged pe- 
 cuniary responsibility to pay any de- 
 cree that might be obtained. North- 
 ern Pac. R. Co. v. St. Paul R. Co., 47 
 Fed. 536. 
 
 40. Chicago, etc., R. Co. v. Kansas 
 City, etc.. R. Co.. 38 Fed. 60 62. 
 
 41. Whelpley v. Erie R. Co., 6 
 Blatehf. 271. 
 
 10
 
 Definition and Natuee of Injunctions. § 5 
 
 order substituted ; ** and this is also the case in Arkansas, 42 
 Kansas/* Kentucky, 45 Nebraska, 46 North Carolina, 47 North 
 Dakota, 48 and in England under the present procedure; 49 and in 
 Nova Scotia ; 49 and in New Brunswick. 50 In Nebraska, while the 
 writ of injunction has been abolished, yet it is deemed that the 
 injunction order, when not granted at the commencement of the 
 action, has the essential elements of the writ, though differing 
 from it in form. 51 In Wisconsin it is decided that a stay of pro- 
 ceedings is not an injunction within the meaning of a statute 
 abolishing the writ of injunction and substituting therefor " a 
 command to refrain from & particular act." 52 The nature of the 
 final injunction in New York as a mode of equitable relief has not 
 been changed by the Code, and the cases in which it may be granted 
 are substantially the same as in the old Court of Chancery ; 53 but 
 the opinion seems to prevail that the Code has enlarged the class 
 of cases in which temporary injunctions may be granted. 54 Such 
 a temporary injunction is no less a mandate of the court than the 
 writ of injunction was. 55 In Ontario an injunction may be granted 
 under the Ontario Judicature Act of 1881, by an interlocutory 
 
 42. Code Civ. Pro., sec. 602; Fel- vision of chap. 212, Laws of 1895 al- 
 lows v. Heermans, 13 Abb. Pr. N. S. 1. lowing an appeal from an order which 
 
 43. Dig. Ark. Stat. 1894. sec. 3774. "grants, refuses, continues or dis- 
 
 44. Kan. Gen. Stat. 1905, sec. 5132. solves an injunction." 
 
 45. Ky. Codes, 1899, sec. 271. 53. Linden v. Hepburn, 3 Sandf. 
 
 46. Neb. Ann. Corle, 1901. sec. G68; New York L. Ins. Co. v. Super- 
 1229; Boyd v. State 19 Neb. 128. 131. visors, 4 Duer, 192. Duer, J.: " The 
 
 47. Revisal of 1905 of No. Car., code has not enlarged nor altered the 
 sec. 80G. power of the court to grant injunc- 
 
 48. N. D. Rev. Codes, 1899. sec. tions, in those cases in which a per- 
 5343. manent injunction is the relief de- 
 
 49. Kerr, Injunctions, 9. manded by the complaint, but in such 
 49a. N. S. R. S. of 1884, p. 927. cases the right of the plaintiff to such 
 
 50. N. B. Consol. Stat., p. 397. relief must still be determined by the 
 
 51. State v. Wakeley, 28 Neb. 431, rules of law that were in force when 
 44 N. W. 488. the code was enacted." 
 
 52. Rossiter v. Aetna Life Ins. Co., 54. Merritt v. Thompson, 3 E. D. 
 96 Wis. 466, 71 N. W. 898, constru- Smith. 283, 295; Neustadt v. Joel, 2 
 ing Wis. R. S., sec. 2773. and hold- Duer, 530. 
 
 ing also that an order denying such a 55. Code Civ. Pro., sec. 3346, 
 
 stay is not appealable under the pro- subd. 2. 
 
 11
 
 § 6 Definition and Nature of Injunctions. 
 
 order in all cases in which it shall appear to the court to be just 
 and convenient, and in cases of waste or trespass whether the 
 enjoinee is in or out of possession or claims the right to do the act 
 complained of under color of title and whether the estates claimed 
 by the parties are legal or equitable. 56 In Oklahoma Territory 
 an injunction order could be used instead of a writ; 57 and also in 
 the State of Colorado. 58 In the State of New York a temporary 
 injunction is purely statutory and cannot stand unless it is author- 
 ized by and conforms to the requirements of the Code. 59 Again 
 Congress having the control of interstate commerce, has also the 
 duty of protecting it, and it is entirely competent for that body 
 to give the remedy by injunction as more efficient than any other 
 civil remedy. 60 
 
 § G. Injunction and receiver— In order that a creditor may 
 have the benefit of this combination of extraordinary remedies for 
 the enforcement of his claims, he must clearly bring himself within 
 the letter of the statute. 61 Thus though complainant makes a 
 prima facie case of a fraudulent conveyance by an insolvent firm 
 of its property to a creditor to the injury of other creditors, but 
 
 5C. 44 Vic, chap. 5, sec. 17. debt is due, the remedy is not avail- 
 
 57. Ok. Stat, of 1890, sec. 5050. able. Ball v. Lastinger, 71 Ga. 678; 
 
 58. King (Col.) Rules and Prac- Wilcoxon Mfg. Co. v. Atkinson, 78 
 tice, sec. 118. Ga. 338. Where a bill was filed un- 
 
 59. Fellows v. Heermans, 13 Abb. der the Act of 1881, alleging that the 
 N. S. 1; Erie R. Co. v. Ramsey, 45 defendant corporation had failed to 
 N. Y. 637, 645. pay its note after demand of payment 
 
 60. United States v. Freight Asso- after maturity and that the corpora- 
 ciation, 166 U. S. 290, 343, 17 Sup. tion was insolvent and proposed to 
 Ct. 510. 41 L. Ed. 1007. Per Mr. Jus- incur more debts by issuing first 
 tice Peckham. mortgage bonds, and where these al- 
 
 61. The provisions of Ga. Code, legations were denied by the answer 
 sec. 3149a, authorizing an injunction and issue made as to the justice of 
 and a receiver in case of non-payment the debt and the insolvency, it was 
 by a trader of a matured debt, are held there was no abuse in granting 
 in derogation of common law. and an injunction and appointing a re- 
 BhoUld be strictly construed. If the ceiver, especially where the company's 
 transaction out of which the debt president was so appointed. And see 
 arises concerns land, and, moreover, Wallace v. Johnson, 88 Ga. 68, 13 
 it does not clearly appear that the S. E. 836. 
 
 12
 
 Definition and Nature of Injunctions. 
 
 §? 
 
 the purchasing creditor is solvent and able to respond and the 
 complaining creditors are without judgments or other liens and 
 do not charge fraud in the creation of their demands, a sufficient 
 case for an interlocutory injunction and receiver is not made out. 62 
 And the Georgia uniformity procedure act of 1887 does not make 
 these extraordinary remedies available where they were not so 
 before. 63 
 
 §: 7. Injunctions as related to specific performance. — The 
 ground upon which a court of equity gives specific performance 
 is generally the same as that upon which it grants an injunction, 
 namely, the inadequacy of the legal remedy. 64 Both of these rem- 
 edies seem to proceed upon the theory that there are some duties 
 and obligations so peremptory that tihe obligor ought in conscience 
 to be held to their performance, and ought not to be permitted 
 to pay a money equivalent in damages for their non-performance. 05 
 An injunction in aid of specific performance being merely ancil- 
 lary to the main purpose of the bill or complaint, if the case for a 
 specific performance as made out by the complaint fails, the plain- 
 tiff cannot have an injunction. 66 An intimate relation between 
 
 62. Stillwell v. Savannah Grocery 
 Co., 88 Ga. 100, 13 S. E. 963. 
 The debts secured by mortgages 
 greatly exceeded the value of the 
 mortgaged property, which was all 
 the property owned by an insolvent 
 corporation. Other creditors sued for 
 an injunction against proceedings un- 
 der foreclosure of the mortgages, and 
 for the appointment of a receiver, al- 
 leging fraud between the corporation 
 and the mortgagees, and the invalid- 
 ity of the mortgages. There was evi- 
 dence on defendant's behalf that the 
 mortgages were made in good faith, 
 and that all the mortgagees were en- 
 tirely solvent. Held, that there was 
 no abuse of discretion in refusing an 
 injunction and receiver. Metropoli- 
 tan Rubber Co. v. Atlanta Rubber 
 Co., 89 Ga. 28, 14 S. E. 896. 
 
 63. Stillwell v. Savannah Grocery 
 Co., 88 Ga. 100, 13 S. E. 963. See 
 DeLacy v. Hurst, 83 Ga. 223, 9 S. E. 
 1052. 
 
 64. See Wilson v. Northampton, 
 etc., R. Co., L. R. 9 Ch. App. 279, 284. 
 
 All the principles which apply 
 to the case of a bill for specific per- 
 formance apply to the case of a bill 
 for perpetual injunction when that in- 
 junction accomplishes all the objects 
 which could be accomplished by a suc- 
 cessful prosecution of a formal bill 
 for specific execution. Whalen v. Bal- 
 timore & O. R. Co. (Md. 1908), 69 
 Atl. 390. 
 
 65. Story Eq. Jur., sec. 861, note 
 (a). 
 
 66. Fargo v. New York, etc., R. 
 Co., 23 N. Y. Supp. 360; Allen v. 
 Burke, 2 Md. Ch. 534. See Toledo, 
 
 13
 
 § 7 Definition and Nature of Injunctions. 
 
 the remedy by specific performance and the remedy by injunction 
 appears also in the doctrine which is now well established, both 
 here and in England, that a court of equity may be unable to 
 enforce a certain class of contracts specifically, but will negatively 
 enforce them by restraining the obligor from carrying out a simi- 
 lar contract with a second obligee. 67 Thus an actor who enters 
 into a contract to perform at a particular theater for a. certain 
 period, cannot be compelled specifically to perform that contract, 
 but he can be enjoined from performing at any other theater 
 during the same period. 68 Sir Edward Fry speaks of the injunc- 
 tion as connected with the specific performance of executory con- 
 tracts in three ways: as the instrument of performance, as 
 incident or ancillary to the performance, and as used for the 
 purpose of giving effect to rights resulting from non-performance 
 of the contract. 69 A court of equity will not generally interfere 
 by injunction to restrain the breach of a contract for the sale and 
 delivery of chattels which it could not compel to be specifically 
 performed, 70 but where the seller has been paid in full and i3 
 insolvent, and is fraudulently disposing of the chattels, an injunc- 
 tion against him will lie in the nature of specific performance. 71 
 So the specific performance of a contract of lease to operate a 
 railroad may be compelled by a mandatory injunction. 72 But an 
 injunction should not be granted in aid of specific performance 
 where no suit for specific performance has been brought, and much 
 less where such a suit could not be maintained. 73 
 
 etc.. R. Co. v. Pennsylvania Co., 54 Chemical Co. v. Hardman, 1891, 2 
 
 Fed. 74G, 755. Ch. D. 416, 428. 
 
 67. Beach, Modern Eq. Jur., sees. 70. Fothergill v. Rowland L. R. 
 604, 605. See Whitwood Chemical 17 Eq. 132; Heatlicote v. North Staf- 
 Co. v. Hardman, 1891, 2 Ch. D. 416, fordshire R. Co., 2 Mac. & G. 112. 
 428. 71. Parker v. Garrison 61 111. 250; 
 
 68. Montague v. Flockton, L. R. Clark v. Flint, 22 Pick. (Mass.) 231. 
 16 Eq. 1S9; Daly v. Smith, 49 How. 72. Schmidt v. Louisville & N. R. 
 Pr. (N. Y.) 150; Duff v. Russell. 14 Co., 101 Ky. 441, 19 Ky. Law Rep. 
 N. Y. Supp. 134; aff'd 133 N. Y. 678, 666, 41 S. W. 1015, 38 L. R. A. 809. 
 31 N. E. 622. 73. At an auction sale of lots which 
 
 69. Fry, Specific Performance, were held by a city in trust for the 
 sees. 1114, 1135. See Whitwood benefit of the common schools, it being 
 
 14
 
 Definition and Nature of Injunctions. 
 
 §8 
 
 § 8. Injunction in aid of attachments. — Where a lien is created 
 in favor of an attaching creditor by an attachment upon property 
 it is a general rule that an injunction may be had to protect such 
 lifn. 74 So where a debtor's property is being fraudulently trans- 
 ferred and there is danger of its removal from the jurisdiction, 
 an equitable action may properly be brought, and an injunction 
 therein may be granted, in aid of and to enforce the lien of an 
 attaching creditor, even before the recovery of a judgment in the 
 attachment suit and at the commencement of such suit. 75 But in 
 
 questionable whether the lots should 
 be sold as originally laid out, or after 
 deducting a strip of land which the 
 city had attempted to add to the 
 Btreet on which the lots abutted, 
 plaintiffs claimed the right to bid for 
 the lots as originally laid out but the 
 city offered only the diminished lots. 
 Plaintiffs were the highest bidders. 
 Upon their refusal to accept deeds to 
 the diminished lots, the city proceeded 
 to resell the lots, when plaintiffs 
 brought a bill in equity, and had the 
 sale enjoined. Held, that any rights 
 acquired by plaintiffs by their pur- 
 chase could be enforced only by suit 
 for specific performance, and they 
 were not entitled to an injuction as 
 an independent remedy. City of Fort 
 Smith v. Brogan, 49 Ark. 306. 5 S. 
 W. 337. Where an injunction is 
 sought in aid of an action for specific 
 performance, if the complainant's case 
 is strong enough to render it at all 
 probable that the complainant may, 
 on final hearing, be able to convince 
 the court that he is entitled to re- 
 lief, the court will, as a general rule, 
 award the writ, but will refuse it in 
 cases where it appears that the con- 
 tract sought to be enforced has not 
 yet been made or, if made, that it is 
 so incomplete and uncertain as to be 
 unenforceable. Domestic Tel. Co. v. 
 Metropolitan Tel., 39 N. J. Eq. 160. 
 
 74. Iowa. — Joseph v. McGill, 52 
 Iowa, 127. 
 
 Mississippi. — Cogburn v. Pollock, 
 54 Miss. 639. 
 
 Nebraska — Northern Knife Co. v. 
 Shoplight, 24 Neb. 635. 
 
 Neio York. — People v. Van Buren. 
 136 N. Y. 252. 32 N. E. 775; Falconer 
 v. Freeman, 4 Sandf. Ch. 565. 
 
 Texas. — Blum v. Schram, 58 Tex. 
 524. 
 
 75. In People v. Van Buren 136 
 N. Y. 252, 32 N. E. 775, Maynard. J., 
 says: "The question whether the 
 facts alleged constitute a cause of 
 action, and afford sufficient grounds 
 for the equitable interference of the 
 Supreme Court, is one which has 
 never been authoritatively determined 
 by this court, and the decisions in the 
 courts below have been far from har- 
 monious upon the subject. There has 
 also been a great diversity of judicial 
 opinion upon this point in other 
 States, and it is stated in the Ameri- 
 can and English Encyclopedia of Law 
 (volume 4, p. 575) that 'whether an 
 equitable suit, analogous to the cred- 
 itors' suit, will be allowed in aid of 
 the lien created by an attachment be- 
 fore the recovery of judgment is a 
 question to which the American courts 
 have given directly different answers.' 
 In the cases of Hall v. Stryker, 27 
 N. Y. 596, and Rinchey v. Stryker, 28 
 
 15
 
 1 8 
 
 Definition and Natube of Injunctions. 
 
 a case in Missouri it is held that an attaching creditor stands on 
 no better ground than one who sues by the ordinary process of 
 the court and that a creditor at large, who has commenced suit 
 by attachment for his debt, but has not obtained judgment there- 
 
 N. Y. 45, it was held that under a 
 warrant of attachment any property 
 of the debtor transferred in fraud of 
 his creditors could be seized, and that, 
 after service of the warrant, the party 
 procuring it is no longer to be deemed 
 a creditor at large, but a creditor 
 having a specific lien upon the goods 
 attached ; and that for the purpose of 
 upholding the attachment and the lien 
 acquired under it the decision of the 
 judge granting the warrant is to be 
 deemed an adjudication of the exist- 
 ence of the debt, which is conclusive 
 upon the fraudulent transferee of the 
 debtor's property." The learned judge 
 next cited and applied Thurber v. 
 Blanck. 50 N. Y. 80, and Bank v. 
 Dakin, 51 N. Y. 519, and then pro- 
 ceeded as follows: "The subsequent 
 decisions bearing upon the question in 
 this court have all been in line with 
 the principles enunciated in these two 
 typical case3 ; but none of them , in- 
 volved the point here presented, of 
 the right of an attaching creditor to 
 prevent the application of the at- 
 tached property to the payment of a 
 prior lien. It must be apparent that, 
 unless such a right exists, the remedy 
 by attachment will be lost in many 
 cases. The sheriff must sell the prop- 
 erty under the prior executions, and 
 apply the proceeds to their payment, 
 and the plaintiff would be in no better 
 condition than if his attachment had 
 not issued. It would seem to be illog- 
 ical to accord to the plaintiff the 
 right to attach property fraudulently 
 1 r.insferred, as he concededly may, 
 under the decisions in Hall v. Stryker 
 
 and the other cases cited above, and 
 yet deny him the right to have the 
 lien preserved until he can merge his 
 claim in a judgment, and issue final 
 process for its collection. No ade- 
 quate remedy at law can be suggested 
 in such a case. The jurisdiction of 
 a court of equity to reach the prop- 
 erty of a debtor justly applicable to 
 the payment of his debts, even where 
 there is no specific lien, is undoubted. 
 It is a very ancient jurisdiction, but 
 will be exercised only when special 
 circumstances exist requiring the in- 
 terposition of the court to obtain pos- 
 session of and apply the property. 
 Such circumstances, we think, are 
 shown to exist here. The case would 
 be different if executions had not been 
 issued upon the fraudulent judgments. 
 The mere existence of a fraudulent 
 transfer would not be sufficient to au- 
 thorize a Court of Equity to entertain 
 an action at the suit of an attaching 
 creditor to set it aside. But when it 
 is sought to make use of such a trans- 
 fer for the purpose of removing the 
 attached property from the jurisdic- 
 tion of the officer who has it in his 
 custody, it is evident that nothing 
 but the equitable arm of the court 
 can prevent the consummation of the 
 wrong. In the case of Falconer v. 
 Freeman, 4 Sandf. Ch. 565, the pre- 
 cise point here involved was decided 
 in favor of the plaintiff's contention, 
 and the vice chancellor held that a 
 Court of Chancery will aid an attach- 
 ing creditor to enforce the lien of the 
 attachment by injunction and other- 
 wise, on the same principle that it 
 
 1C
 
 Definition and Natuee of Injunctions. 
 
 §9 
 
 for, is not entitled to invoke the equitable interference of the courts 
 to annul judgments fraudulently confessed by the debtor in favor 
 of other persons, or to restrain by injunction the disposal of the 
 debtor's property through the means of executions issued on such 
 confessed judgments. 76 
 
 § 9. Injunction compared with mandamus, certiorari and quo 
 warranto. — The writ of injunction may be regarded as the cor- 
 relative of the writ of mandamus; the one restraining the per- 
 formance of an unlawful act, and the other requiring the 
 performance of a lawful act or neglected duty. 77 Injunction, 
 
 aids an execution creditor similarly 
 obstructed. There are some cases in 
 the Supreme Court to the same effect. 
 Bates v. Plonsky, 28 Hun, 112; 
 Keller v. Payne (Sup.), 1 N. Y. Supp. 
 148; Tannenbaum v. Rosswog (Sup.), 
 6 N. Y. Supp. 578. The objection is 
 urged that the creditor may be un- 
 successful in establishing his debt in 
 the attachment suit, and it thus may 
 be found that there was no basis for 
 the equitable action. But such a risk 
 attends all litigation, and provision 
 for full indemnity is made in the re- 
 quirements of the statute for security 
 both upon the issue of the attachment 
 and the granting of the preliminary 
 injunction. Both actions are pending 
 in the same tribunal, which can con- 
 trol the order in which they shall be 
 tried, and, if issue is joined in the 
 action at law, the determination of 
 the equitable action may be postponed 
 until the former has been finally dis- 
 posed of. The measure of relief to be 
 granted in the equitable action is also 
 discretionary with the court, and 
 might be limited to a decree enjoin- 
 ing interference with the attached 
 property until the plaintiff's right to 
 follow the attachment with an execu- 
 tion has been adjudged. The court 
 
 therefore had jurisdiction of the 
 action in which the injunction order 
 was granted, and the violation of its 
 provisions by the defendants was in- 
 excusable." 
 
 76. Martin v. Michael, 23 Mo. 50. 
 
 77. Board of Liquidation v. Mc- 
 Comb, 92 U. S. 531, 541, 23 L. Ed. 623; 
 See also Noble v. Union River Logging 
 Railroad, 147 U. S. 165, 171, 13 S. 
 Ct. 271 37 L. Ed. 123; Decatur v. 
 Paulding, 14 Pet. 497, 10 L. Ed. 610. 
 In Attorney General v. Railroad Com- 
 panies, 35 Wis. 425, 520, Ryan, C. J., 
 thus compared the writs of injunction 
 and mandamus : " The latter com- 
 mands. The former forbids. Where 
 there is nonfeasance, mandamus com- 
 pels duty. Where there is malfeas- 
 ance, injunction restrains wrong. 
 And so near are the objects of the two 
 writs that there is sometimes doubt 
 which is the proper one; injunction is 
 frequently mandatory, and mandamus 
 sometimes operates restraint. In 
 these very motions it was argued on 
 one side that the remedy of the State 
 is by mandamus, on the other that it 
 is by injunction. And it is very safe 
 to assume that the constitution gives 
 injunction to restrain excess, in the 
 same class of cases as it gives man- 
 
 17
 
 §9 
 
 Definition and Nature of Injunctions. 
 
 unless issued after the decree, when it becomes judicial, can only 
 be used for the purpose of prevention, and protection, and not for 
 the purpose of commanding the defendant to undo anything he 
 had previously done. 79 Mandamus is a writ commanding the 
 performance of some act or duty, therein specified, in the per- 
 formance of which the applicant for the writ is interested or by 
 the non-performance of which he is aggrieved or injured. As a 
 simply preventative remedy it has never been used. Its use is 
 confined to those occasions where the law has established no 
 specific remedy, and where in justice and good government there 
 ought to be one. 80 Injunction is akin to certiorari, quo warranto/ 2 
 and is also like mandamus in that it is an extraordinary remedy 
 which can be invoked only where complainant's right is clear and 
 
 damus to supply defect; the use of 
 the one wri or the other in each case 
 turning solely on the accident of over- 
 action or shortcoming of the defend- 
 ant. And it may be that where de- 
 fect and excess meet in a single case, 
 the court might meet both, in its dis- 
 cretion, by one of the writs, without 
 being driven to send out both, tied 
 together with red tape, for a single 
 purpose." 
 
 A mandatory injunction which 
 is the counterpart in equity of 
 a mandamus at law may be in the 
 direct form of command or in the 
 direct form of prohibiting the refusal 
 to do an act to which anotner has a 
 right. Parsons v. Marye. 23 Fed. 
 113, 121, Per Hughes J. 
 
 79. Washington University v. 
 Green, 1 Md. Ch. 97, 101. 
 
 80. Legg v. Mayor of Annapolis, 
 42 Md. 203, 226, Per Alvey, J. 
 
 A mandamus is not a pre- 
 ventive writ. — Its office is to put 
 inferior tribunals or public persona 
 in motion. It commands the per- 
 formance of ministerial acts, or being 
 addressed to subordinate judicial tri- 
 
 bunals, requires them to exercise 
 their functions, and render some judg- 
 ment in cases before them. People v. 
 Inspectors and Agent of the State 
 Prison, 4 Mich. 187, 190. Per Cope- 
 land J. 
 
 82. "An injunction is an extraor- 
 dinary proceeding, the propriety of 
 the allowance of which depends upon 
 a variety of circumstances, aside from 
 the strictly defined rights of the com- 
 plainant. In this respect writs of in- 
 junction are akin to those other ex- 
 traordinary remedies namely, cer- 
 tiorari and quo warranto. Neither 
 of these writs is allowed as a matter 
 of strict right. Whenever public in- 
 terests may suffer, a writ of certiorari 
 may be refused. The same rule ap- 
 plies to writs of quo warranto, where 
 the motive of the defendant or the 
 effect upon public or private inter- 
 ests will be considered in granting or 
 refusing the writ. The allowance of 
 an injunction is a matter of discre- 
 tion, and an injunction will not be 
 granted if it will cause great injury 
 to the defendants, without correspond- 
 ing advantage to the complainant. 
 
 18
 
 Definition and Nature of Injunctions. 
 
 §9 
 
 there is> no other adequate remedy. 83 Mandamus and injunction 
 are also similar in that the latter will not be granted a.t the suit 
 of a private individual for an invasion of public rights unless he 
 shows some special injury distinct from that of the public 84 and 
 that the former remedy will only be granted at the suit of an 
 individual unless he has some particular interest to be subserved 
 or right to be protected independent of that which he holds in 
 common with the public. 85 And the remedy of mandamus is like- 
 wise similar to that of injunction in that it will not be granted 
 in doubtful cases. 86 Mandamus will not, however, be granted 
 where the applicant's claim rests merely on an equitable right. 87 
 And an injunction will not lie to restrain mandamus proceedings 
 if under them plaintiff's rights can be fully protected, 88 nor will 
 
 So it is perceived that whether writs 
 of this class will be allowed depends 
 not upon the strict right of the 
 parties to some redress, nor upon the 
 question whether the defendants have 
 violated some legal right; but it de- 
 pends upon whether, under the cir- 
 cumstances, this extraordinary pro- 
 cess should go in the particular in- 
 stance." Bray v. Ocean City R. Co. 
 (N. J. Eq. 1897), 37 Atl. 604, 605. 
 Per Reed, V. C. 
 
 Where quo warranto is in- 
 effectual by reason of the period of 
 time required before such relief could 
 be granted, and immediate relief can 
 be obtained by injunction, the latter 
 remedy is properly granted. State v. 
 Louisiana B. G. & A. G. R. Co., 116 
 Mo. App. 175, 92 S. W. 153. 
 
 83. State ex rel. Kelley v. Bonnell, 
 119 Ind. 494, 21 N. E. 1101. 
 
 84. See § 13 herein. 
 
 85. The general rule is that a 
 private individual can apply for a 
 writ of mandamus only in a case 
 where he has some private or partic- 
 ular interest to be subserved, or some 
 particular right to be pursued or pro- 
 
 tected by the aid of this process, in- 
 dependent of that which he holds in 
 common with the public at large, and 
 it is for the public officers exclusively 
 to apply, where public rights are to 
 be subserved." Wellington et al. Peti- 
 tioners, 16 Pick. (Mass.) 87, 105. 
 Per Shaw, J. Quoted in People v. In- 
 spectors and Agent of the State 
 Prison, 4 Mich. 187, 188. 
 
 86. The writ of mandamus is one 
 of the extraordinary remedies pro- 
 vided by law and should never be 
 awarded unless the party applying 
 for it shall show a clear right to have 
 the thing sought by it done, and by 
 the person or body sought to be 
 coerced. In doubtful cases it should 
 not be granted. Springfield & Illinois 
 S. R. Co. v. County Clerk of Wayne 
 County, 74 111. 27, 31. Per Scott. J., 
 citing People v. Hatch, 33 111. 9; 
 People v. Mayor of Chicago, 51 111. 17. 
 
 87. Burnsville Turnpike Co. v. 
 State, ex rel. McCalla, 119 Ind. 382, 
 20 N. E. 421. 
 
 88. People v. Wasson, 64 N. Y. 
 167. 
 
 
 10
 
 §9a 
 
 Definition and Natuee of Injunctions. 
 
 an injunction lie where the legal remedy by mandamus is appro- 
 priate and adequate. 89 
 
 § 9a. Injunction and prohibition compared. — A writ of pro- 
 hibition differs from an injunction in that it acts upon courts and 
 not upon parties and can issue only from the Supreme Court; it 
 resembles an injunction in that its issue depends upon judicial 
 discretion and is an extraordinary remedy which will not be 
 granted where an adequate remedy can be had by the ordinary 
 process of the courts. Thus the writ will not issue to prevent a 
 mayor's court from proceeding in a matter of which it has juris- 
 diction when the grievance complained of can be corrected by 
 appeal or certiorari. 90 Prohibition from the Supreme Court is 
 
 89. Commissioners v. School Com'rs, 
 77 Md. 283, 26 Atl. R. 115. 
 
 90. State v. Whitaker, 114 N. C. 
 818, 19 S. E. 376, per Clark, J. "The 
 ■writ of prohibition existed at common 
 law, and is also authorized by the 
 constitutional provision (article 4, 
 § 8), which gives the supreme court 
 ' power to issue any remedial writs 
 necessary to give it a general super- 
 vision and control over the proceed- 
 ings of the inferior courts.' In this 
 State this writ can issue only from 
 the Supreme Court. Perry v. Shep- 
 heard 78 N. C. 83. The writ of pro- 
 hibition is the converse of mandamus. 
 It prohibits action, while mandamus 
 compels action. It differs from an 
 injunction, which enjoins a party to 
 the action from doing the forbidden 
 act, while prohibition is an extraor- 
 dinary judicial writ, issuing to a 
 court from another court having su- 
 pervision and control of its proceed- 
 ings, to prevent it from proceeding 
 further in a matter pending before 
 such lower court. It is an original 
 remfrtinl writ, and is the remedy af- 
 forded by the common law against the 
 
 encroachment of jurisdiction by in- 
 ferior courts, and to keep them within 
 the limits prescribed by law. 19 Am. 
 & Eng. Enc. Law, 263, 264; High, 
 Extr. Rem. § 762. It is settled that 
 this writ does not lie for grievances 
 which may be redressed, in the ordi- 
 nary course of judicial proceedings, 
 by appeal, or by recordaii or cer- 
 tiorari in lieu of an appeal. Nor is 
 it a writ of right granted ex debito 
 justitiae, like habeas corpus, but it is 
 to be granted or withheld according 
 to the circumstances of each partic- 
 ular case. Being a prerogative writ, 
 it is to be used like all such, with 
 great caution and forbearance, to pre- 
 vent usurpation, and secure regu- 
 larity, in judicial proceedings, where 
 none of the ordinary remedies pro- 
 vided by law will give the desired re- 
 lief, and damage and wrong will ensue 
 pending their application. High, Extr. 
 Rem. §§ 765, 770. In the present case 
 the mayor's court has jurisdiction of 
 the persons of the defendants; and of 
 the subject-matter which is the al- 
 leged violation of a town ordinance. 
 If the ordinance in question is in- 
 
 20
 
 Definition and Natube of Injunctions. 
 
 §9a 
 
 appropriate to restrain a lower court's unlawful exercise of juris- 
 diction over subject matter of which jurisdiction has been properly 
 
 valid, that matter can be determined 
 on appeal to the superior court, and 
 by a further appeal, if desired, thence 
 to this court. This has been often 
 done. There is no palable usurpation 
 of jurisdiction, or abuse of it3 au- 
 thority, nor likelihood of injury to 
 defendants, which calls for the ex- 
 traordinary process of this court, by 
 prohibition, to stop the action of the 
 lower court. It is more orderly to 
 proceed in the regular way, — to have 
 an alleged error of this kind corrected 
 on appeal. The writ might properly 
 issue where the court below has no 
 jurisdiction of the subject-matter, as, 
 for instance, if a justice of the peace 
 should attempt to try a defendant for 
 larceny, or decree foreclosure of a 
 mortgage; but even in that case it 
 would rest in the discretion of the 
 Supreme Court whether the matter 
 should be left to correction by ap- 
 peal, or by treating such judgment 
 as a nullity. As to the denial of a 
 jury trial by the mayor, it is pointed 
 out by Smith, C. J., in State v. Powell, 
 97 N. C. 417, 1 S. E. 482, that 
 under the present constitution ( article 
 1, § 13), the Legislature is author- 
 ized to vest the trial of petty misde- 
 meanors in inferior courts, without a 
 jury, if the right of appeal is pre- 
 served. It was otherwise under the 
 former constitution, under which 
 State v. Moss, 2 Jones L. 66, was de- 
 cided. The guaranty of a trial by 
 jury in the sixth and seventh amend- 
 ments to the Constitution of the 
 United States applies only to the fed- 
 eral courts and is not a restriction 
 on the States, which may provide for 
 the trial of criminal and civil cases 
 in their own courts, with or without 
 
 jury, as authorized by the State Con- 
 stitution. Cooley Const. Lim. (6th 
 Ed.) 30; Walker v. Sauvinet, 92 U. 
 & 90, 23 L. Ed. 678; Munn v. 
 Illinois, 94 U. S. 113, 24 L. Ed. 77. 
 There are instances, though infre- 
 quent, when this writ has been in- 
 voked. It has been granted where, 
 after a conviction for felony, the 
 court has, at a subsequent term, 
 granted a new trial upon the merits, 
 without any legal authority for so 
 doing. Quimbo Appo v. People, 20 N. 
 Y. 531. It is also the appropriate 
 remedy, pending an appeal from an 
 inferior to a superior court, to pre- 
 vent the former from exceeding its 
 jurisdiction by attempting to execute 
 the judgment appealed from, or to 
 prevent a circuit court exceeding its 
 powers by issuing an unauthorized 
 writ of error and supersedeas to a 
 county court, and interfering improp- 
 erly with the jurisdiction of the 
 latter. Supervisors v. Gorrell, 20 
 Gratt. 484. Also, to prevent an in- 
 ferior court's interfering with, or at- 
 tempting to control, the records and 
 seal of the superior court by injunc- 
 tion. Thomas v. Mead, 36 Mo. 232. 
 It lies to prevent a probate court ex- 
 ercising jurisdiction over the estate 
 of a deceased person when it cannot 
 lawfully do so. United States v. 
 Shanks, 15 Minn. 369, Gil. 302. Or 
 where justices of the peace are pro- 
 ceeding, without authority of law. to 
 abate a supposed nuisance, prohibi- 
 tion lies to stay their action. Zylstra 
 v. Charleston Corp.. 1 Bay, 382. 
 These are cited as illustrations, but 
 in each case it is in the discretion of 
 the Supreme Court whether the writ 
 shall be granted. Prohibition doeB 
 
 21
 
 § 10 Definition and Natube of Injunctions. 
 
 acquired by another court, in view of the imminent possibility of 
 physical conflict for possession between the officers of the two 
 courts. 9 * 
 
 § 10. Injunction and damages in the same action. — In har- 
 mony with a general principle of equity jurisprudence which 
 aims at complete and final relief in a single action in respect of 
 all matters between the same parties growing out of the same 
 general transaction ; and under section 484 of the New York Code 
 of Civil Procedure which authorizes a plaintiff to unite in his com- 
 plaint two or more causes of action whether legal or equitable arising 
 out of the same transaction or out of transactions connected with 
 the same subject of action it has been decided in New York that 
 a person, who is entitled to enjoin a railroad company from a 
 continuous interference with his rights of property, may unite 
 with his demand for an injunction a demand for damages for such 
 interference and also a claim for damages for a personal injury 
 caused by such interference. The complaint in such an action is 
 not demurrable for misjoinder of causes of action. 92 And though 
 such property owners have ia remedy at law for the intrusion upon 
 
 not issue to restrain judicial action fendants have the right of appeal. If 
 
 ■where the latter would be a usurpa- there is aught in the charter of the 
 
 tion and cannot be adequately reme- city which grants the defendants a 
 
 died by an appeal. 19 Am. & Eng. trial by jury, if demanded, the error 
 
 Enc. Law, 268, 269. It issues to and in the refusal could be corrected by a 
 
 acts upon courts as an injunction acts jury trial in the superior court, 
 
 upon parties, and, like an injunction. There is no emergency which requires 
 
 it does not lie where adequate remedy the court to issue the writ prayed for. 
 
 can be had by the ordinary process of Petition denied." 
 the courts. When entertained, the 91. State v. Ross, 122 Mo. 435, 25 
 
 usual course, unless prior notice to S. W. 947. 
 
 the petition has been given, is to issue 92. Lamming v. Galusha, 135 N. Y. 
 a notice to the lower court to show 239, 31 N. E. 1024, where Andrews, J. 
 cause why the writ should not issue, said : " But the question here is 
 and to order a stay of proceedings in whether a plaintiff having a cause of 
 the meantime. Id. 280, 281. In the action which entitles him to an in- 
 present case, if the defendants are junction restraining the maintenance 
 convicted upon an invalid ordinance, and operation of the railroad by rea- 
 there is ample remedy by appeal. son of its continuous interference with 
 The Constitution doe3 not guaranty a his rights of property may unite with 
 jury trial in such case, since the de- the demand for equitable relief by in- 
 
 22
 
 Definition and Nature of Injunctions. 
 
 §10 
 
 their rights, yet as the trespass is continuous in its nature, they 
 can have an injunction to prevent a multiplicity of suits, and can 
 recover the damages they have sustained as incidental to the equit- 
 able relief. 93 So in a late case in New York it is decided that a 
 court of equity which has obtained jurisdiction of an action 
 
 junction, and for damages for such 
 interference, a claim for damages for 
 a personal injury suffered on a par- 
 ticular occasion from the same wrong- 
 ful appropriation and use of the high- 
 way; or, in other words, whether he 
 may unite in a single action all his 
 claims, legal and equitable, which 
 arise in consequence of the same gen- 
 eral cause, viz., the nuisance main- 
 tained by the defendant. This is a 
 question of procedure governed by the 
 course and practice of the court, or 
 by the statute, if made the subject of 
 statute regulation. We are of opinion 
 that the causes of action were prop- 
 erly united under section 484 of the 
 Code of Civil Procedure, which au- 
 thorizes the plaintiff to unite in his 
 complaint two or more causes of ac- 
 tion, whether such as were formerly 
 denominated legal or equitable or 
 both, in the cases specified; and 
 among others : ' Subd. 9. Upon 
 claims arising out of the same 
 transaction, or transactions connected 
 with the same subject of action, and 
 not included within one of the fore- 
 going sub-divisions.' The subject of 
 the action in this case was the injury 
 committed by the defendant in main- 
 taining a public nuisance which sub- 
 jected the plaintiff to injuries speci- 
 fied, viz., injury to real property, and 
 personal injury. The injuries were 
 distinct in character, and, while the 
 injury to the real property was con- 
 tinuous, the physical injury was con- 
 summated when first inflicted. But 
 they both proceeded, in a general 
 
 sense, from the same wrong — the un- 
 lawful obstruction of the highway by 
 the defendant; and they were all, we 
 think, ' transactions connected with 
 tne same subject of action.' within 
 the meaning of section 483 and may 
 properly be redressed in a single ac- 
 tion. This conclusion is in harmony 
 with the general principle of equity 
 jurisprudence, which aims at com- 
 plete and final relief in a single action 
 in respect of all matters between the 
 same parties, growing out of the same 
 general transaction. It is supported 
 by the significant language of the 
 court in Chapman v. City of Roch- 
 ester, 110 N. Y. 276, 18 N. E. 88, 
 which was an action to restrain the 
 pollution of a stream and for dam- 
 ages. Danforth. J., said: 'Moreover, 
 the plaintiff is found to have sus- 
 tained a special injury to his health 
 and property from the same cause, 
 and we find no reason to doubt that 
 he is entitled, not only to compensa- 
 tion for damages thereby occasioned, 
 but also to such judgment as will pre- 
 vent the further perpretation of the 
 wrong complained of.' See, also, 
 Shepard v. Railway Co., 117 N, Y. 
 442, 23 N. E. 30. These views lead 
 to a reversal of the judgment of the 
 General Term and an affirmance of the 
 judgment of the Special Term, with 
 costs." All concur. 
 
 93. Shepard v. Manhattan R. Co., 
 117 N. Y. 442, 448, 23 N. E. 30; 
 Henderson v. N. Y. Central R. Co., 78 
 N. Y. 423; Williams v. N. Y. Central 
 R. Co., 16 N. Y. 97. 
 
 23
 
 §11 Definition and Nature of Injunctions. 
 
 brought by a land owner to restrain the continuance of a nuisance, 
 and for damages, alleged to be caused by the maintenance and 
 operation of a plant for the production of electric light and power, 
 may retain the case, although it is found that the nuisance was 
 abated at the time of the trial and that it was improbable that 
 any would be created in the future, and may determine whether 
 the plaintiff is entitled to any damages. 94 And in another recent 
 case in this State it is decided that the complaint of a single plain- 
 tiff in equity to restrain the continuance of a nuisance created by 
 the separate acts of several defendants is not demurrable on the 
 ground of multifariousness because it unites with tbe cause for 
 equitable relief one for damages already suffered. 95 In Pennsyl- 
 vania, too, where plaintiff's right to an injunction to restrain a 
 continuing trespass is established, an account of damages previ- 
 ously sustained follows as an incident, and to avoid multiplicity of 
 suits. 96 And one of two adjoining owners or tenants may enjoin 
 the other from continuing a nuisance, and as auxiliary and sub- 
 sidiary relief may ask for damages already caused by the 
 
 §11. Damages in lieu of injunction. — A court of equity has 
 power by injunction to enforce covenants in a conveyance restrict- 
 ing the use of land conveyed to certain specific purposes, or 
 prohibiting the erection thereon of certain specified structures; 98 
 and such negative easements may be reciprocal and created by 
 conveyances in severalty to different grantees of an entire tract, 
 
 94. Miller v. Edison Elec. Ilium. injunction to restrain a threatened 
 Co., 184 N. Y. 17, 76 N. E. 734, rev'g additional trespass may be joined and 
 97 App. Div. 638 89 N. Y. Supp. 1059. an objection that they are not separ- 
 
 95. Burghen v. Erie Railroad Co., ately stated cannot be reached by de- 
 123 App. Div. (N. Y.) 204, 108 N. Y. murrer on ground of misjoinder but by 
 Supp. 311. motion only unless the failure to state 
 
 96. Walters v. McElroy. 151 Pa. them separately renders the complaint 
 St. 549; Allison's Appeal, 77 Pa. St. ambiguous or unintelligible. 
 
 221 ; Souder's Appeal, 57 Pa. St. 498. 97. Boston Ferrule Co. v. Hills, 
 
 See, also, Jacob v. Lorenz, 98 Cal. 159 Mass. 147, 34 N. E. 85. 
 
 332, 33 Pac. 119, where it was held a 98. Columbia College Trustees v. 
 
 cause of action for damages for a Lynch. 70 N. Y. 440. 
 
 trespass and a cause of action for an See Chap. XV. herein. 
 
 24
 
 Definition and Nature of Injunctions. 
 
 §11 
 
 and they may be created by a reservation in a conveyance, by a 
 condition annexed to a grant, by a covenant, and even by a parol 
 agreement of the grantee." But where there has been such a 
 change in the character of the neighborhood as to defeat the 
 objects and purposes of the restricting covenants, reservations or 
 conditions, and to render it inequitable to deprive a grantee or 
 his successors in title of the privilege of conforming his property 
 to that character, injunctive relief will not be granted, and in lieu 
 thereof, damages may be allowed in the action for the injunction 
 in order to avoid multiplicity of suits. 1 It is also well settled in 
 New York that an abutting owner may maintain a suit in equity to 
 enjoin a railroad company from operating its road in front of his 
 premises, unless it first pays him the damages he will thus sustain 
 from the permanent interference with his easements of light, air 
 and access; 2 and also in a proper case both pay him damages for 
 
 99. Curtiss v. Ayrault, 47 N. Y. 73; 
 Tallmadge v. East Riv. Bank. 26 N. 
 Y. 105; Gilbert v. Peteler, 38 Barb. 
 (N. Y.) 488, affd 38 N. Y. 165. 
 
 1. Amerman v. Deane, 132 N. Y. 
 355, 30 N. E. 741, distinguishing Pond 
 v. Metropolitan El. R. Co., 112 N. Y. 
 186. 19 N. E. 487, and Uline v. N. Y. 
 Central & H. R. R. Co., 101 N. Y. 98, 
 4 N. E. 536, which were actions at 
 law for damages. See, also, Columbia 
 College v. Thatcher, 87 N. Y. 311. 
 Also, Orne v. Fridenberg. 143 Pa. St. 
 487, 22 Atl. 832 where there had been 
 such a change in the neighborhood 
 and character and purposes of the im- 
 provements as were deemed sufficient 
 to justify the Chancellor in refusing 
 the injunction. 
 
 2. Bohm v. Metropolitan El. R. Co., 
 129 N. Y. 576; 29 N. E. 802; Ameri- 
 can Bank Note Co. v. New York El. 
 R. Co., 129 N. Y. 352, 29 N. E. 302; 
 Mitchell v. Metropolitan El. R. Co., 
 132 N. Y. 552, 30 N. E. 385; Roberts 
 v. New York El. R. Co., 128 N. Y. 
 455, 28 N. E. 486. In Woolsey v. New 
 York El. R. Co., 134 N. Y. 323, 31 
 
 N. E. 891, which was an action to 
 recover damages caused by the erec- 
 tion and maintenance by defendants 
 of an elevated railroad in front of 
 plaintiff's premises, and to restrain 
 defendants from operating their road 
 in front thereof unless the fee dam- 
 ages were paid, it appeared that be- 
 fore the action was begun plaintiff 
 requested defendants to acquire their 
 easements by condemnation. Pro- 
 ceedings for that purpose were begun 
 after the action was commenced, and 
 the next day after the trial commis- 
 sioners were appointed. After the 
 trial, the parties by stipulation asked 
 the court to find the value of the 
 property taken, so that by payment 
 thereof an injunction could be avoided. 
 In this case it was held that an in- 
 junction was properly granted sub- 
 ject to such payment, and that a re- 
 fusal of the court to direct that the 
 injunction should become operative 
 only in case defendant failed to ac- 
 quire the easements by condemnation 
 was not error. 
 
 25
 
 §12 
 
 Definition and Nature of Injunctions. 
 
 past interference, and also damages, called fee damages for the 
 permanent interference with such easements in the future. 8 
 
 § 12. Damages in lieu of injunction; Lord Cairn's Act. — 
 Where there is jurisdiction to grant an injunction, damages may 
 be given under Lord Cairn's Act, instead of granting the injunc- 
 tion, for an injury which has occurred since the commencement 
 of the action; 4 but where an action is brought for an injunction 
 in respect of a threatened injury and no actual wrong has been 
 committed by the defendant, the court has no jurisdiction under 
 Lord Cairn's Act to give damages in substitution for such injunc- 
 tion. 5 In awarding damages instead of granting an injunction 
 the court must exercise a sound discretion, and not allow defendant 
 at his convenience to do a wrongful act on payment of damages 
 therefor. 6 If the injury complained of is trifling, the court may 
 well exercise its discretion by awarding damages in place of an 
 
 3. Gerber v. Metropolitan El. R. 
 Co., 23 N. Y. Supp. 166. 
 
 4. Warwick, etc., Canal v. Burman, 
 63 L. T. 670. 
 
 5. Dreyfus v. Peruvian Guano Co., 
 L. R. 43 Ch. D. 316. 
 
 6. Smith v. Smith, L. R. 20 Eq. 
 500, where Jessel, M. R. said: "Thus 
 what difference was introduced by 
 Lord Cairn's Act? Before the Act it 
 was matter of right to obtain the in- 
 junction. By that Act the court had 
 a discretion to substitute damages 
 where it thought proper. Now this 
 discretion must be a judicial discre- 
 tion exercised according to something 
 like a settled rule, and in such a way 
 as to prevent the defendant doing a 
 wrongful act and thinking he could 
 pay damages for it. Without laying 
 down any absolute rule, in the first 
 place it is of great importance to see 
 if the defendant knew he was doing 
 wrong, and was taking his chance 
 
 about being disturbed in doing it. 
 . . . In the present case the in- 
 jury was most serious to plaintiff and 
 he could not be compensated without 
 the defendant buying the house, while, 
 as regards the defendant, I am not 
 satisfied that any considerable sum 
 has been laid out on his buildings. 
 Again the plaintiff was occupier of 
 the house, so that it was a personal 
 injury to him. Taking all the cir- 
 cumstances together, therefore, I 
 think that I have no right to say that 
 the plaintiff is to give up the house 
 and take pecuniary compensation for 
 it, because it is more convenient to 
 the defendant. I shall grant a man- 
 datory injunction in accordance with 
 the terms of the prayer, and follow- 
 ing the order made in Jessel v. Chap- 
 lin, 2 Jur. (N. S.) 931, direct that 
 it is not to operate for two months, 
 and the defendant to pay the costs of 
 the suit." 
 
 26
 
 Definition and Nature of Injunctions. §§ 13, 13a 
 
 injunction, 7 but should ordinarily enjoin an injury of a serious 
 nature. 8 In order that damages should be an adequate substitute 
 for an injunction, they must cover as well the damages for wrong- 
 ful acts continued up to the time of trial, as for those which had 
 taLen place before the issue of the injunction. 9 
 
 § 13. No private injunction to protect public rights. — An 
 
 injunction will not be granted on the application of a private per- 
 son to protect purely public rights, 10 and much more a private 
 injunction will not be granted, except in cases of great urgency, 
 which will interfere with public improvements. 11 So in a case in 
 Indiana it is said that the authorities " without exception, both 
 in England and America, deny to a private person an injunction 
 for an invasion of the public right where the bill or complaint fails 
 to show a special injury to the complainant." 12 
 
 § 13a, Same subject; rule illustrated. — In the application of 
 
 7. Holland v. Worley, L. R. 26 Ch. 
 J). 578. In deciding between damages 
 and an injunction the court will con- 
 sider the plaintiff's acquiescence. Say- 
 ers v. Collyar, L. R. 28 Ch. D. 103. 
 
 8. Krehl v. Burrell, L. R. 7 Ch. D. 
 651, 11 Ch. D. 146; Greenwood v. 
 Hornsey, L. R. 33 Ch. D. 4/1. 
 
 9. Fritz v. Hobson, L. R. 14 Ch. D. 
 543. 
 
 10. Colorado. — Vickery v. Wilson 
 (Colo. 1907), 90 Pac. 1034. 
 
 Illinois. — Springer v. Walters, 139 
 111. 419, 28 N. E. 761; McDonald v. 
 English, 85 111. 236. 
 
 Kansas. — Ruthstrom v. Peterson, 72 
 Kan. 679, 83 Pac. 825. 
 
 Nebraska. — Lee v. McCook (Neb. 
 1908), 116 N. W. 955. 
 
 New Jersey. — Atlantic City G. & W. 
 Co. v. Consumers G. & F. Co. (N. J. 
 1907), 65 Atl. 1119. 
 
 The right to hunt wild fowl on 
 tlie navigable waters of a State is a 
 
 right the exercise of which a court of 
 equity will protect by restraining in- 
 terference therewith. Ainsworth v. 
 Munoskong Hunting & F. Co. (Mich. 
 1908), 116 N. W. 992. 
 
 11. Booraem v. North Hudson R. 
 Co., 40 N. J. Eq. 557, 5 Atl. 106. 
 
 12. Landes v. Walls, 160 Ind. 216, 
 66 N. E. 679. Per Gillett. J., citing 
 
 4 Blacks. Comm. 167; McCowan v. 
 Whitesides, 31 Ind. 235; Cummins v. 
 City of Seymour. 79 Ind. 491. 41 Am. 
 Rep. 618; Indiana, Bloomington & W. 
 R. Co. v. Eberle, 110 Ind. 542, 11 N. 
 E. 467, 59 Am. Rep. 225; Manufac- 
 turers Gas & Oil Co. v. Natural Gas & 
 Oil Co., 155 Ind. 566. 58 N. E. 851, 
 55 L. R. A. 768; Doolittle v. Supervis- 
 ors. 18 N. Y. 155; People v. Stevens, 
 
 5 Hill (N. Y.). 616; State v. Lord 28 
 Oreg. 498, 43 Pac. 471, 31 L. R. A. 
 473; State v. Cunningham, 83 Wis. 
 90, 53 N. W. 35, 35 Am. St. Rep. 27, 
 17 L. R. A. 145. 
 
 27
 
 § 13a Definition and Nature of Injunctions. 
 
 the rule stated in the preceding section it has been determined that 
 an abutting owner cannot maintain an action to enjoin the main- 
 tenance of an obstruction in a street caused by the location therein 
 of a portion of an elevated railway station where he had no inter- 
 est in the soil occupied by it, and sustains no substantial injury 
 by reason of the encroachment, to any right appurtenant to his 
 premises, since an individual citizen cannot maintain an action to 
 abate a public nuisance unless he is especially injured, and a mere 
 abstract right will not be protected by injunction. 13 And a gas 
 company will not be restrained at the suit of a rival company 
 from laying its mains in a street in violation of the provisions of 
 a statute regulating the laying of such mains where the complain- 
 ant fails to show some special damage sustained or threatened. 14 
 So a complaint to enjoin defendant from transporting natural gas 
 through pipes at a pressure in excess of that allowed by statute 
 is insufficient where it is not shown that the plaintiffs sustain any 
 Bpecial injury peculiar to themselves by reason of the violation of 
 the act aside from, and independent of, the general injury to the 
 public. 15 Again, while courts of equity have a well settled juris- 
 diction in matters of trusts, and public office may well be regarded 
 as a public trust, yet an individual cannot by injunction restrain 
 the abuse or enforce the execution of a public trust, unless he can 
 show some peculiar interest therein; for the beneficiary of a public 
 trust is the public and not an individual. 16 Nor can a private 
 
 13. Adler v. Metropolitan El. R. perform a public duty at the suit of a 
 Co., 138 N. Y. 173, 52 N. Y. St. 160, private individual without some spe- 
 33 N. E. 935. cial right or authority.' In no case 
 
 14. Atlantic City Gas & W. Co. v. has it ever been held that a private 
 Consumers' Gas & F. Co. (N. J. Eq.), individual may maintain a bill to en- 
 61 Atl. 750. join a breach of public trust without 
 
 15. Manufacturers Gas & Oil Co. v. showing that he will be specially in- 
 Indiana Natural Gas & Oil Co., 155 jured thereby. See Bigelow v. Hart- 
 Ind. 566, 58 N. E. 851. ford Bridge Co., 14 Conn. 565; 
 
 16. In Chicago v. Union Building O'Brien v. Norwich, etc., R. Co.. 17 
 Assoc'n, 102 111. 370. the court thus Conn. 372; Delaware, etc.. R. Co. v. 
 reviewed the decisions: "The general Stump, 8 Gill & J. 470; Paul v. Car- 
 doftrine, according to Bispham's Prin- ver. 24 Pa. St. 207. Indeed in a num- 
 ciples of Equity. 2d ed., p. 512, is: 'A ber of the States, the courts have ex- 
 corporation cannot be compelled to pressly denied the right of a private 
 
 28
 
 Definition and Natube of Injunctions. § 13a 
 
 individual have public officers enjoined from using public funds 
 unless it can be shown that some civil or property rights are being 
 invaded or in other words that the individual will sustain some 
 special injury by the transaction. 17 And it is declared that the 
 general rule is that when the duty about to be violated by a public 
 corporation or its officers is public in its nature and affects all the 
 inhabitants alike, one not suffering any special injury cannot in 
 his own name, or by uniting with others, maintain a bill for an 
 injunction. A private individual cannot maintain a bill to enjoin 
 a breach of a public trust without showing that he will be specially 
 injured thereby. Where no injury results to the individual, the 
 public alone can complain. Hence, in the declaration or bill the 
 party complaining must allege and prove some special damage, 
 different in kind and degree from that suffered by the general 
 public. 18 To avoid multiplicity of suits, however, and to obtain 
 ■ final relief a private person may enjoin a public nuisance, if it is 
 continuous and peculiarly injures his person or his property; 19 
 but the injury must be distinct from that which he suffers in corn- 
 taxpayer to have restrained a threat- shown in Chicago v. Rumsey, 87 Til. 
 ened illegal municipal act that will 355, and People, etc.. v. Walsh. 96 111. 
 result in increased taxation, holding 232, strictly accurate. In the last 
 that the only remedy therefor must named case we said: 'The city as the 
 be sought through those representing agent or representative of the public 
 the public. Doolittle v. Supervisors, holds the fee for the use of the pub- 
 18 N. Y. 155; Roosevelt v. Draper. 23 lie — not the citizens of the city alone, 
 N. Y. 318; Conklin v. Com'rs, 13 but the eutire public — of which the 
 Minn. 454; Bagg v. Detroit, 5 Mich. legislature is the representative."' 
 336; Chaffee v. Granger, 6 Mich. 51. 17. State v. Lord. 28 Oreg. 498, 507, 
 
 Counsel contend that it is well set- 43 Pac. 471, 31 L. R. A. 473. 
 tied that city authorities hold the 18. Cicero Lumber Co. v. Town or 
 
 streets in trust for the benefit of all Cicero. 176 111. 9, 51 N. E. 758, 68 
 the corporators and among other cases Am. St. Rep. 155. 42 L. R. A. 696, 
 refer to Carter v. Chicago, 57 111. 283; citing City of Chicago v. Union 
 Chicago v. Wright, 69 111. 318; Dun- Building Ass'n, 102 111. 379; Barrows 
 ham v. Hyde Park, 75 111. 371; Brush v. City of Syracuse. 150 111. 588, 37 
 v. Carbondale, 78 111. 74. The general N. E. 1096; Field v. Barling, 149 111. 
 expression in these cases, that the city 556, 37 N. E. 850 ; Smith v. Mc- 
 holds the streets in trust for the bene- Dowell, 148 111. 51, 35 N. E. 141. 
 fit of all the corporators, though ac- 19. Lamming v. Galusha, 135 N. 
 
 curate enough in its application to the Y. 239, 243, 31 N. E. 1024. 
 facts there involved is not as we have
 
 §14 
 
 Definition and Natube of Injunctions. 
 
 mon with the rest of the public. 20 And the principle is said to be 
 settled that the objection that the nuisance is a common one is not 
 available if it be shown that special damage is suffered. 21 
 
 § 14. Clean hands. — In accordance with a favorite maxim of 
 equity jurisprudence, that he who applies for equity must also 
 have done it, a party applying for an injunction must come into 
 a court of equity with clean hands and a clear conscience. 22 Thus, 
 where a land owner lowers the ditch on his land and makes lateral 
 drains and thereby causes water to flow into the ditch which does 
 not naturally belong there, and to flood defendant's lower land, 
 and defendant digs up a part of the ditch in order to stop such 
 flooding, the former is not entitled to a mandatory injunction to 
 compel defendant to restore the ditch to its former condition be- 
 cause he is not free from wrong himself in relation to the matter 
 
 20. O'Brien v. Norwich, etc., R. 
 Co., 17 Conn. 372; Bigelow v. Hart- 
 ford Biidge Co., 14 Conn. 565, 30 
 Am. TVe. 502. 
 
 21. Crawford v. Tyrrell, 128 N. 
 Y. 341, 344, citing Rose v. Miles, 4 
 M. & S. 101 ; Rose v. Groves, 5 Man. 
 & G. 013; Francis v. Schoellkopf. 53 
 N. Y. 152; Lansing v. Smith, 4 Wend. 
 (N. Y.) 9. See State v. Wheeling & 
 Belmont Bridge Co.. 13 How. (U. S.) 
 518; Cronin v. Bloemecke, 58 N. J. 
 Eq. 313, 43 Atl. 605, holding that an 
 injunction will be granted at the suit 
 of an individual where there is a 
 gathering of disorderly persons to 
 witness ball games, where, although 
 the gathering is a public nuisance, it 
 causes annoyance and injury to the 
 complainant. 
 
 22. In Joseph v. Macowsky, 96 Cal. 
 518. 31 Pac. 914, the plaintiff was 
 denied an injunction because he had 
 represented the razors in question to 
 be manufactured in Sheffield, Eng- 
 land, when in fact he did not know 
 where nor by whom they were manu- 
 
 factured. " It is a general rule of 
 law, in cases of this kind, that courts 
 of equity will not interfere by injunc- 
 tion, where there is any lack of truth 
 in the plaintift's case; that is where 
 there is any misrepresentation in his 
 trade-mark or labels." Siegert v. Ab- 
 bott, 61 Md. 284. See also Palmer v. 
 Harris. 60 Pa. St. 156; Hobbs v. 
 Francais. 19 How. Pr. 571; Fetridge 
 v. Merchant, 4 Abb. Pr. 156; Browne 
 on Trade-Marks, sees. 71, 474. Where 
 medicine was manufactured by plain- 
 tiff in New York another trade-mark 
 declared that it was manufactured by 
 another person in Massachusetts, it 
 was held that plaintiff was not enti- 
 tled to an injunction against a per- 
 son using the same trade-mark in 
 Maine. Manhattan Medicine Co. v. 
 Wood, 108 U. S. 218, 2 S. Ct. 436, 
 27 L. Ed. 706. See also, Connell v. 
 Reed, 128 Mass. 477; Seabury v. 
 Grosvenor, 14 Blatch. 262; Pidding v. 
 How, 8 Simons, 477; Leather Cloth 
 Co. v. American, etc., Co., 11 H. L. 
 Cas. 523. 
 
 30
 
 Definition and Natube of Injunctions. § 15 
 
 in which he seeks equitable relief. 23 And a person who has bor- 
 rowed money of a savings institution, upon his promissory note, 
 secured by a pledge of bank stock, is not entitled to an injunction 
 to prevent the prosecution of the note, on the ground that the sav- 
 ings bank was prohibited by its charter, from making loans of 
 that description. 24 In accordance', however, with the rule that a 
 court of equity having acquired jurisdiction for one purpose will 
 entertain it for all purposes, it may, where it has acquired juris- 
 diction of a whole tract of land, afford injunctive relief as to a part 
 thereof, as to which, if it were alone, the relief might be refused by 
 reason of the manner in which plaintiff acquired it. 25 And it 
 is no legal bar to the injunction that the plaintiff may have 
 acquired his title from collateral motives, and very recently before 
 the work or conduct complained of began or was to begin. 26 
 
 § 15. Same subject; patent causes. — The courts of the United 
 States, which are authorized to grant injunctions in patent causes 
 according to principles of equity, will not grant one to a complain- 
 ant, who, after long delay, makes his application for an injunction 
 at a particular juncture when it will greatly embarrass the alleged 
 infringer, whereas if the application had been made promptly such 
 special injury to the infringer would have been avoided. 27 
 
 23. McAllister v. Henderson, 134 26. Savannah & Western R. R. Co. 
 Ind. 453, 34 N. E. 221 ; Jones v. Ew- v. Woodruff. 86 Ga. 94, 13 S. E. 156. 
 ing. 107 Ind. 313, 6 N. E. 819. 27. Ney Mfg. Co. v. Superior Drill 
 
 24. Mott v. United States Trust Co., 56 Fed. 152, per Sage. J.: "A 
 Co.. 19 Barb (N. Y. ) 568. second reason for overruling this mo- 
 
 25. Where land, title to which had tion is that the complainant waited 
 been adjudicated, consisted of a tract nearly two months after filing its 
 embracing several lots, and complain- bill, and until it must have known 
 ants were in possession of the whole that the defendant would be stocked 
 thereof. Held, that the fact that, as up with a full supply for the year's 
 to a portion of one lot, their posses- business, which is practically over at 
 sion was obtained by violence, would the close of the haymaking season, 
 not prevent equity from affording re- and then presented its motion for an 
 lief as to the whole tract, including injunction. The courts of the United 
 that lot; jurisdiction having attached States are vested with power to grant 
 by reason of the rightful possession injunctions in patent causes accord- 
 of the other portions. Pratt v. Ken- ing to the course and principles of 
 dig, 21 N. E. 495, 128 111. 293. equity. It is not according to equity 
 
 31
 
 §16 
 
 Definition and Nature of Injunctions. 
 
 § 16. Same subject ; where injunction an evasion of just dues. 
 — In illustration of the rule that a party applying for an injunc- 
 tion must come with clear hands, it has been repeatedly decided 
 in the Federal Supreme Court that an injunction should not be 
 granted to restrain the collection of a tax on the ground of exces- 
 sive valuation and discrimination, unless the part of the tax which 
 is clearly due has been paid or tendered, for otherwise the injunc- 
 tion would be, as in fact it has often proved to be, a vexatious 
 means of delaying the payment of a just demand. 28 So a person 
 
 for a complainant to delay the asser- 
 tion of his right to an injunction 
 until the time when it will most em- 
 barrass and injure the respondent. 
 Such a proceeding savors of a dispo- 
 sition to use the right of a patentee 
 to oppress an alleged infringer, or to 
 force him into a position where he 
 may be compelled to incur heavy 
 losses or to yield to hard demands. 
 The granting or withholding of a pre- 
 liminary injunction is within the 
 proper discretion of the court. It will 
 be withheld when apparently sought 
 for the purpose of obtaining an undue 
 advantage. It has been withheld 
 when, in the opinion of the court, it 
 would be used for the purpose of 
 creating mischief (Neilson v. Thomp- 
 son. 1 Webst. Pat. Cas. 275), or when 
 it would give the complainant the 
 means of coercing a compromise 
 (Parker v. Sears, 1 Fish. Pat. Cas. 
 93), and so I think it should be here, 
 where the result of granting it now 
 would do more harm to the respond- 
 ents than good to the complainant, 
 whereas, if the application had been 
 made promptly, special harm to the 
 respondents would have been 
 avoided." 
 
 See chap. XXVII herein as to in- 
 junction generally in case of infringe- 
 ment of patents. 
 
 28. Albuquerque Nat. Bank v. 
 Perea, 147 U. S. 87, 13 Sup. Ct. 194, 
 37 L. Ed. 91, where Brewer, J., said: 
 " With respect to the taxes of 18S9, 
 there was no payment or tender of pay- 
 ment of any amount. Plaintiff seeks to 
 avoid the necessity therefor by alleg- 
 ing that it is impossible to separate 
 the legal from the illegal portions of 
 the taxes, an allegation which is mani- 
 festly untrue in view of the fact that 
 it had no difficulty in making the 
 separation in the taxes of 1888, the 
 assessment for which was paid in a 
 similar way, and in view of the fur- 
 ther fact that it must have known 
 what property it had which was sub- 
 ject to taxation as well as its value, 
 and, therefore, the rate of taxation 
 being fixed by law, it could of course 
 have known what amount was un- 
 doubtedly due. The rule in respect to 
 this matter is perfectly well settled in 
 this court. In State Railroad Cases 92 
 U. S. 575, 616, 23 L. Ed. 663, it was 
 fully considered. In that case it was 
 said by Mr. Justice JVihler speaking 
 for the court: ' It is a profitable thing 
 for corporations or individuals whose 
 taxes are very large to obtain a pre- 
 liminary injunction as to all their 
 taxes, contest the case through sev- 
 eral years litigation, and when in the 
 end it is found that but a small part 
 
 32
 
 Definition and Nature of Injunctions. 
 
 §17 
 
 seeking to prevent the enforcement at law of usurious contracts 
 must show that he has paid or tendered the amount justly due. 29 
 On the same principle it is enacted in Illinois that " only so much 
 of any judgment at law shall be enjoined as the complainant shall 
 show himself equitably not bound to pay." 30 
 
 § 17. Imminent injury as ground of injunctive relief. — A mere 
 possibility, or anything short of a reasonable probability of injury 
 to plaintiff is insufficient to warrant an injunction in his favor. 31 
 
 of the tax should be permanently en- 
 joined, submit to pay the balance. 
 This is not equity. It is in direct 
 violation of the first principles of 
 equity jurisdiction. It is not suffi- 
 cient to say in the bill that they are 
 ready and willing to pay whatever 
 may be found due. They must first 
 pay what is conceded to be due, or 
 what can be seen to be due on the 
 face of the bill or be shown by affida- 
 vits, whether conceded or not, before 
 the preliminary injunction should be 
 granted. The State is not to be thus 
 tied up as to that of which there is 
 no contest by lumping it with that 
 which is really contested. If the 
 proper officer refuses to receive a part 
 of the tax, it must be tendered and 
 tendered without the condition an- 
 nexed of a receipt in full of all the 
 taxes assessed." 
 
 See chap. XVI herein as to injunc- 
 tion against taxes generally. 
 
 29. Morgan v. Schermerhorn, 1 
 Paige (N. Y.), 544; Fanning v. Dun- 
 ham, 5 Johns. Ch. (N. Y.) 122; Rog- 
 ers v. Rathbun, 1 Johns. Ch. (N. Y.) 
 367; Tupper v. Powell, 1 Johns. (N. 
 Y.) 439. 
 
 30. 111. R. S. 1889, p. 796. 
 
 See chaps. XXI-XXIV herein as to 
 injunctions against judgments gener- 
 ally. 
 
 31. International R. Co. v. Record- 
 
 ing F. R. Co., 151 Fed. 199, 80 C. C. 
 A. 475. 
 
 United States. — Lake Erie & W. 
 R. Co. v. Fremont, 92 Fed. 721, 34 
 C. C. A. 625; Atkinson v. Philadel- 
 phia & T. R. Co., Fed. Cas. No. 7,285, 
 1 Cranch C. C. 443. 
 
 California. — Lorenz v. Waldron, 96 
 Cal. 243, 31 Pac. 54. 
 
 Connecticut. — Goodwin v. New 
 York, N. H. & H. R. Co., 43 Conn. 
 494; Bigelow v. Hartford Bridge Co., 
 14 Conn. 565 36 Am. Dec. 502. 
 
 Florida. — Ruge v. Apalachicola 
 Oyster C. & F. Co., 25 Fla. 656, 6 So. 
 489. 
 
 Georgia. — Hart v. Atlanta T. Co., 
 128 Ga. 754, 58 S. E. 452; McCaskill 
 v. Bower, 126 Ga. 341, 54 S. E. 942; 
 Rounsaville v. Kohlheim, 68 Ga. 668. 
 45 Am. Rep. 505. 
 
 Illinois. — Springer v. Walters, 139 
 111. 419, 28 N. E. 761; Blatchford v. 
 Chicago Dredging & D. Co., 22 111. 
 App. 376. 
 
 Kansas. — Hurd v. Atchison, T. & 
 S. F. Ry. (Kan. 1906), 84 Pac. 553; 
 Emerson v. South Fork Irrig. & I. 
 Co., 59 Kan. 778, 53 Pac. 756; City 
 of Hutchinson v. Delano, 46 Kan. 345, 
 26 Pac. 740. 
 
 Kentucky. — Louisville & N. R. Co. 
 v. McVean, 17 Ky. Law Rep. 1283, 34 
 S. W. 525. 
 
 Louisiana. — Roudanez v. City of 
 
 ?>?,
 
 §17 
 
 Definition and Nature of Injunctions. 
 
 So it has been declared that the mere apprehension of some future 
 acts of a wrongful nature, which might be injurious to the plain- 
 tiffs, is not a sufficient basis for insisting upon the preventive 
 
 New Orleans, 29 La. Ann. 271; La- 
 meyer v. Rouzan, 8 La. 280. 
 
 Mississippi. — McCutchen v. Blan- 
 ton, 69 Miss. 116. 
 
 Missouri. — McLemore v. Meheley, 
 66 Mo. App. 556. 
 
 Nevada. — Sherman v. Clark, 4 Nev. 
 138, 97 Am. Dec. 516. 
 
 New Jersey. — Van Der Plaat v. 
 Undertakers & Liverymen's Assn. 
 (N. J. 1905), 62 Atl. 453; Delaware 
 & R. Canal Co. v. Camden & A. R. 
 Co., 15 N. J. Eq. 13; Lutheran Church 
 v. Maschop, 10 N. J. Eq. 57. 
 
 New York. — Union Cemetery Ass'n 
 v. City of Buffalo, 124 N. Y. 88, 26 
 N. E. 330; Genet v. Delaware & H. 
 Canal Co., 122 N. Y. 505, 25 N. E. 
 922; Thomas v. Mutual Musical Pro- 
 tective Union, 121 N. Y. 45, 24 N. E. 
 24, 8 L. R. A. 175; Griffith v. Dodg- 
 son, 103 App. Div. 542, 93 N. Y. 
 Supp. 155; Russell & Sons v. Stamp- 
 ers & Gold L. L. Union, 107 N. Y. 
 Supp. 303; McCabe v. Emmons, 51 N. 
 Y. Super. Ct. 219; Bean v. Pettengill, 
 30 N. Y. Super. Ct. 7 ; Baucus v. Al- 
 bany Northern R. Co., 8 How. Prac. 
 70. 
 
 Ohio. — Commercial Bank v. Bow- 
 man, 1 Handy, 246; Sargent v. Ohio 
 & M. R. Co., 1 Handy, 52. 
 
 Pennsylvania. — Sweeny v. Torrence, 
 11 Pa. Co. Ct. R. 497; Germantown 
 Water Co. v. McCallum, 5 Phila. 93. 
 
 Tennessee. — Moore v. Hallum, 1 
 Lea, 511; White v. Schurer, 4 Baxt. 
 23. 
 
 Texas.— Kerr v. Riddle (Civ. 
 App.). 31 S. W. 328. 
 
 Wisconsin. — City of Janesville v. 
 Carpenter, 77 Wis. 288, 46 N. W. 
 
 128, 20 Am. St. Rep. 123, 8 L. R. A. 
 808. 
 
 In Lorenz v. Waldron, 96 Cal. 
 243, 31 Pac. 54, it was decided that 
 the owner of a water ditch con- 
 structed along a mountain side on 
 land of the United States, though en- 
 titled to right of way with vertical 
 and lateral support, could not enjoin 
 a locator of a mining claim from tun- 
 neling into the side of the mountain, 
 forty-six feet under the ditch, where 
 their rights were not controverted and 
 no reasonable probability appeared 
 that the ditch would be injured by 
 the excavation. 
 
 In the valuable case of Genet v. 
 Delaware & H. Canal Co., 122 N. Y. 
 505, 529, 25 N. E. 922, the court said: 
 " There is no finding of any injury 
 and no proof of any so far as I am 
 able to find. But from the opinion of 
 the learned referee it appears that 
 the injury is one anticipated rather 
 than sustained. It would not be fair 
 or proper to call it a threatened in- 
 jury, as that could not be said where 
 the means employed to remove the 
 water are more than adequate and 
 had never failed. But it is said that 
 if the pumps should break down, or 
 a strike occur, the pumping would 
 stop and the mine be flooded. Such 
 remote possibilities which belong to 
 the category of accidents, are hardly 
 sufficient to be made the basis of an 
 application for the exercise of the 
 great power of a court of equity. In- 
 jury material and actual, not fanci- 
 ful or theoretical, or merely possible, 
 must be shown as the necessary or 
 probable result of the action sought
 
 Definition and Nature of Injunctions. § 17 
 
 remedy of a final injunction, as such a remedy becomes a necessity 
 only when it is perfectly clear upon the facts that, unless granted, 
 the complainant may be irreparably injured and that he can have 
 no adequate remedy at law for the mischief occasioned. 32 So to 
 entitle a plaintiff to an injunction against public officers to control 
 their action 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 is being done by the 
 defendants or is threatened and imminent, which will be destructive 
 of such right, or cause material injury to him. A state of things 
 from which the plaintiff apprehends injurious consequences to 
 himself, but which neither actually exists nor is threatened by the 
 defendants, nor is inevitable, is not a sufficient ground for an 
 injunction. 33 And a court of equity will not interfere by injunc- 
 tion with a plan of improvements adopted in good faith by muni- 
 cipal authorities and within the scope of their authority, where 
 injury therefrom is doubtful or contingent. To justify such an 
 interference, it must be shown that actual injury is the probable 
 result. 34 But where a public officer, under color of office and pro- 
 visions of a statute, threatens to do an act which will inflict per- 
 
 to be restrained," citing People v. plaint is held to be properly dis- 
 
 Canal Board. 55 N. Y. 390, 397. missed. Brown v. Cole, 105 N. Y. 
 
 Where, in an action to re- Supp. 197. 
 
 strain the connty committee of 32. Reynolds v. Everett, 144 N. Y. 
 
 a political party from putting into 189, 194, 195, 39 N. E. 72. Per 
 
 operation certain rules and regula- Gray. J. 
 
 tions, it appears upon the trial that 33. People v. Canal Board, 55 N. 
 the time during which the defendant Y. 390, 394. Per Allen, J. 
 is alleged to have threatened to put 34. Morgan v. Binghamton, 102 N. 
 such rules and regulations into force Y. 500, 7 N. E. 424, where the Court 
 had passed, that there had been no of Appeals, reversing the judgment 
 effort to put them in force, that the of the General Term, dissolved the in- 
 primaries had been held and con- junction on the following grounds, 
 ducted in the usual manner, and that which appear in the opinion of Finch, 
 neither party claims to have any in- J. : " The findings plainly disclose 
 terest in the cause of action at the two characteristics of this appre- 
 time of trial and it does not appear hended danger. It is not imminent, 
 that the rules objected to are in and it is wholly contingent and not 
 force or that the defendant threat- inevitable. No immediate danger ex- 
 ens to put them in force, the com- ists. It is found to be possible within 
 
 35
 
 §17 
 
 Definition and Nature of Injunctions. 
 
 manent damage to another's property, the owner is not bound to 
 wait until the defendant has actually committed the threatened 
 act but may at once invoke the equitable interference of the courts 
 to restrain such act, on establishing that he does not come within 
 the provisions of the statute under which the officer claims to act. 36 
 A mere threat, however, is not ordinarily a sufficient ground for 
 an injunction. 36 There must be a well grounded apprehension of 
 
 one or two years but not certain to 
 occur sooner than in three years. 
 Every finding which prognosticates 
 threatened evil is qualified by the 
 phrase ' in time ' which limits it to 
 some indefinite future period; and 
 when the findings seek to fix that, 
 they postpone it as a certain danger 
 for three years. But they leave it 
 men merely a contingency depending, 
 as the findings express it, upon the 
 condition that the branch sewers 
 ' should be mainly used by the inhab- 
 itants ' of the adjoining streets. No- 
 body knows when they will be so 
 ' mainly used.' Houses which have 
 their own cess-pools and privy vaults 
 may not for many years be fitted 
 with modern closets and sewer con- 
 nections. Such improvements are be- 
 ginning to be questioned for their 
 own evils and dangers, and may 
 come slowly, and no evidence or find- 
 ing indicates the probable period. 
 The contingency as to time is further 
 made to ' depend very much upon the 
 quantity of water used in the sewer.' 
 The twenty-sixth finding of the trial 
 judge explicitly declares that ' the 
 pernicious effects of the depositing of 
 sewer matter at this point and the 
 time when such will be felt are de- 
 pendent upon various uncertain fu- 
 ture events;' and this shows that the 
 evil itself as well as the date of its 
 appearance are alike contingent and 
 
 not inevitable. The danger, therefore, 
 which can alone support this injunc- 
 tion is in the air of an uncertain and 
 indefinite future. Its possible coming 
 rests upon opinion and speculation. 
 It is both doubtful and remote. See 
 also People v. Canal Board, 55 N. Y. 
 397; Salomons v. Knight (1891), 2 
 Ch. D. 294." 
 
 35. Flood v. Van Wormer, 147 N. 
 Y. 284, 41 N. E. 569. 
 
 36. Bond v. Wool, 107 N. C. 139, 
 12 S. E. 281. A threat to infringe, 
 such as justifies an injunction, is not 
 made by a manufacturer offering to 
 do work for a railroad company and 
 furnish everything required except 
 certain patented signals, and, upon 
 the refusal of his offer, offering to 
 furnish such signals for a certain ad- 
 ditional sum and withdrawing such 
 proposal in a day or two, since the 
 only justifiable inference is that he 
 intended to procure such signals by 
 lawful means. Johnson Signal Co. t. 
 Union Switch Co., 55 Fed. 487. 
 Equity will protect the rights of an 
 equitable owner of an interest the 
 legal title to which is in assignees in 
 bankruptcy, from threatened injury. 
 Williams v. Wadsworth, 51 Conn. 
 277. 
 
 Examine Piro v. Shipley. 211 Pa. 
 St. 36, 60 Atl. 325, holding that a 
 threatened injury with a clear right 
 of the complainant will be enjoined. 
 
 30
 
 Definition and Nature of Injunctions. 
 
 §18 
 
 immediate injury to plaintiff. 37 And it has been decided that to 
 justify the granting of an injunction as a provisional remedy under 
 the New York Code, it must appear that defendant threatens to 
 do some act in violation of plaintiff's rights respecting the subject 
 of the action and tending to render the judgment ineffectual. 38 
 
 § 18. Same subject continued. — In a case in Tennessee it is 
 decided that on an application for a preliminary injunction all 
 that the judge should generally require is a case of probable right 
 and probable danger to that right without the interposition of the 
 court, and that his discretion should then be regulated by the 
 balance of inconvenience or injury to the one party or the other. 
 Thus where ihe complainants 1 sought to enjoin a judgment at law 
 upon the ground that the note on which it was recovered had been 
 given in consideration of the sale to them by the defendant of the 
 right to manufacture a particular medicine, and that they had 
 been induced to buy the right by the vendor's false representation 
 
 37. Atlantic Water Co. v. Con- 
 sumer's Water Co., 44 N. J. Eq. 427; 
 Potter v. Saginaw Union St. Ry. Co., 
 83 Mich. 285, 47 N. W. 217; Hutchin- 
 son v. Delano (Kan.), 26 Pac. 740; 
 Cheshire Mills v. Gowing, 62 N. H. 
 618; Ruge v. Apalachicola Oyster 
 Canning & Fish Co., 25 Fla. 656, 6 
 So. 489; Crawford v. Bradford. 23 
 Fla. 404, 2 So. 782; Dorsey v. Allen, 
 85 N. C. 358 ; Hall v. Rood 40 Mich. 
 49; McMenomy v. Baud, 87 Cal. 139; 
 Hoke v. Perdue, 62 Cal. 545; Sher- 
 man v. Clark, 4 Nev. 142. It not ap- 
 pearing that defendant had mala fide 
 and clandestinely set about to ap- 
 propriate the invention, and it not 
 appearing probable from his past 
 conduct that he would attempt 
 to use the infringing articles 
 in the future, and there being 
 nothing to indicate that such ar- 
 ticles could be readily used sur- 
 reptitiously, to the injury of com- 
 
 plainant, defendant will not be re- 
 quired to deliver them over to com- 
 plainant to be destroyed, in addition 
 to the relief ordinarily granted. 
 American Bell Tel. Co. v. Kitsel, 35 
 Fed. 521. 
 
 38. Bagaley v. Vanderbilt, 16 Abb. 
 N. C. 359; New York, etc., R. Co. v. 
 New York etc., R. Co., 11 Abb. N. C. 
 386. Plaintiff, a foreign corporation, 
 organized for the purpose of collect- 
 ing news and furnishing the same to 
 the newspapers, cannot maintain an 
 action to restrain an unincorporated 
 association engaged in the same busi- 
 ness from enforcing a rule that its 
 members should take no news from 
 other new3 agencies; the association 
 not being governed by any corporate 
 duty, and owing no duty to plaintiff, 
 which was attempting to compete 
 with it. Dunlap's Cable News Co. v. 
 Stone, 15 N. Y. Supp. 2. 
 
 37
 
 18 
 
 Definition and Nature of Injunctions. 
 
 that he was the discoverer of the active agent in the compound, 
 and alleged that the defendant was insolvent, the Chancellor, 
 though of the opinion that complainants were not injured by the 
 representation, even if false, yet granted the injunction because of 
 the irreparable loss which might follow the collection of the judg- 
 ment before the merits could be adjudged. 39 This rule is recog- 
 nized as less strict than the requirement of section 603 of the New 
 York Code of Civil Procedure authorizing a temporary injunction 
 to be granted only when it shall appear by the complaint that the 
 
 39. Flippin v. Knaffle, 2 Cooper 
 (Tenn. Ch.), 238, where the chan- 
 cellor said: " In Glascott v. Lang, 3 
 Myl. & Cr. 455, Lord Cottenham says : 
 ' In looking through the pleadings 
 and evidence for the purpose of an 
 injunction, it is not necessary that 
 the court should find a case which 
 would entitle the plaintiff to relief at 
 all courts. It is quite sufficient if the 
 court finds, upon the pleadings and 
 the evidence, a case which makes the 
 transaction a proper subject of in- 
 vestigation, in a court of equity.' In 
 Great Western R. Co. v. Birmingham 
 R. Co., 2 Ph. 602, the same learned 
 judge says: 'It is certain that, the 
 court will in many cases interfere 
 and preserve property in statu quo 
 during the pendency of a suit in 
 which the rights to it are to be de- 
 cided, and that without expressing 
 and without having the means of 
 forming, any opinion as to such 
 rights. ... It is true that the 
 court will not so interfere if it thinks 
 that there is no real question between 
 the parties; but seeing that there is 
 a substantial question to be decided, 
 it will preserve the property until 
 such question can be regularly dis- 
 posed of. In order to support an in- 
 junction for such purpose it is not 
 necessary for the court to decide upon 
 
 the merits in favor of the plaintiffs.' 
 In Shrewsbury v. Shrewsbury, etc., 
 R. Co., 1 Sim. N. S. 410, 426, reviews 
 these rulings of Lord Cottenham, and 
 in view of some suggestions by Lord 
 Eldon on the same subject concludes 
 that there are two points on which 
 the court must satisfy itself. First, 
 not that the plaintiff has cer- 
 tainly a right, but that he has 
 a fair question to raise as to 
 the existence of such right. The 
 other is whether interim interference 
 on a balance of convenience or incon- 
 venience to the one party and to the 
 other is or is not expedient. And see 
 Tonson v. Walkers, 3 Swanst. 679. 
 To the same effect are the American 
 authorities. ' It is not usual nor or- 
 dinarily is it proper, to enquire into 
 the right of the court to grant relief 
 upon an application for an injunc- 
 tion, still less to refuse an injunction 
 when the question of jurisdiction is 
 doubtful, and when refusing it may 
 produce injury to the party applying.' 
 Hartt v. Harvey, 32 Barb. 68. This 
 practice has been changed in New 
 York by the statute directing an in- 
 junction to be granted only when it 
 shall appear by the complaint that 
 the party is entitled to the relief de- 
 manded. Code Civ. Pro., sec. 603. 
 ' In order to support a motion for an 
 
 38
 
 Definition and Nattjbe of Injunctions. § 19 
 
 plaintiff is entitled to the relief demanded. 40 In a later case in Ten- 
 nessee, however, it is decided that it is essential to the granting 
 of an injunction to protect a party in rightful possession that it 
 should be a clear case where an undoubted possession is being 
 disturbed by the proceedings sought to be enjoined. 41 And again 
 in a more recent case it is decided that the fact that a declaration 
 of policy may be made the basis of illegal acts and practices there- 
 after is not sufficient ground for a present injunction unless such 
 illegal acts are its direct and necessary effect. 42 
 
 § 19. Same subject ; when plaintiff not harmed. — A temporary 
 injunction is properly refused where no harm can come to plain- 
 tiff by its refusal, and where the questions of law have not been 
 argued and the facts justly and clearly presented. Thus where 
 the grantor had reserved certain mining privileges by the deed of 
 conveyance, but the grantee had the right to use the water on the 
 land conveyed to him, the court refused to enjoin such use in 
 limine, and directed the bill to be held up for a full hearing, so 
 that the injunction might be intelligently adjudged after a jury 
 trial. 43 While courts of equity have jurisdiction to prevent public 
 
 injunction the bill should set forth a junction in this case, as there can 
 
 case of probable right, and a prob- come no harm to plaintiff on that ac- 
 
 able danger that the right would be count, under the facts, for whatever 
 
 defeated without the special interpo- may be the rights of the grantor it is 
 
 sition of the court.' Johnson, J., in clear that the grantee had the right 
 
 Georgia v. Braislford, 2 Dall. 402. to erect the mill and use the water 
 
 Blair, Jr. . says in the same case : ' It on the land. We are satisfied that 
 
 is enough on a motion of this kind to this case should go to a trial before 
 
 show a colorable title.'" a jury, where all the facts can be 
 
 40. Flippin v. Knaffle. 2 Cooper submitted to the court and jury, and 
 (Tenn. Ch.), 238, 243; Hartt v. Har- for this purpose we direct that the 
 vey. 32 Barb. 55, 68. bill be held up for a full hearing so 
 
 41. Moore v. Hollum, 1 Lea that the case may be intelligently ad- 
 (Tenn.), 511, 512. judicated. There are many questions 
 
 42. Post v. Southern R. Co., 103 which may arise in this case of the 
 Tenn. 184, 52 S. W. 301, 55 L. R. A. first importance which are not 
 481. clearly stated in the record, and 
 
 43. Hamilton v. Eden Gold Mining which have not been argued before 
 Co., 75 Ga. 447,, per Blandon, J.: us; and upon a full investigation we 
 " We are unanimous that the court will be better enabled to consider and 
 did right to refuse the temporary in- decide them." 
 
 39
 
 20 
 
 Definition and Nature of Injunctions. 
 
 nuisances they will ordinarily exercise it only where the public 
 injury is quite serious and where there is no convenient remedy 
 in the tribunals of law. 44 The court will not exercise its jurisdic- 
 tion to prevent an act by defendants which though illegal and 
 improper, is for that reason futile and productive of no injury to 
 plaintiff; a3 for example to prevent defendant from proceeding 
 with an arbitration to which plaintiff is not a party. 45 
 
 § 20. Clear violation of plaintiff's right; balancing equities. — 
 When plaintiff's moving allegations are denied under oath in such 
 a manner as to leave their truth in serious doubt, his application 
 for an injunction should be denied, unless it clearly appears that 
 the injunction will do the defendants no serious harm and that its 
 
 44. Thus in Raritan Township v. 
 Port Reading R. Co., 49 N. J. Eq. 
 11, 23 Atl. 127, the court refused to 
 interfere by preliminary injunction to 
 restrain the defendant from erecting 
 bridge abutments upon the sides of 
 an unfrequented country road for the 
 reason as the court said that " the 
 obstruction by the abutments will not 
 Beriously impede public travel. It 
 has been shown that the travel over 
 the highway in question is merely 
 nominal; that the roadway in use 
 consists of a single wagon track; that 
 the highway on each side of this 
 wagon track where the abutments are 
 being erected is overgrown by under- 
 brush and weeds, so that for all prac- 
 tical purposes the twenty-five foot 
 space between the abutments will be 
 ample for the public accommodation 
 at present and perhaps for years to 
 come." So in Woodbridge Township 
 v. Inslee, 37 N. J. Eq. 397, a bill to 
 enjoin excavations in or near a high- 
 way was held to be demurrable be- 
 cause it did not allege that defendant 
 threatened to excavate so close as to 
 endanger the road, and the court 
 
 added " that there does not appear to 
 be any necessity for recourse to 
 equity. The excavation made by Ins- 
 lee has existed since 187G, five years 
 before the bill was filed, and it would 
 seem that the piles of clay complained 
 of were placed in the road some 
 months before this suit was begun. 
 It is not even averred that there ia 
 any need of immediate relief. Not- 
 withstanding the excavation and ob- 
 structions, the road has been used by 
 tne public and so far as the bill shows 
 with safety. It follows from what has 
 been said that the demurrer must be 
 allowed." 
 
 45. Farrar v. Cooper, L. R. 44 Ch. 
 D. 323. A preliminary injunction 
 will not be granted to compel the les- 
 sees of an opera house to allow the 
 complainants to use the house in ac- 
 cordance with a contract therefor, 
 where such injunction would compel 
 the lessee to break a similar contract 
 made by them with an innocent third 
 party and the complainants cannot 
 use the house with profit to them- 
 selves. Foster v. Ballenberg (1890), 
 43 Fed. 821. 
 
 40
 
 Definition and Natuke of Injunctions. 
 
 §20 
 
 refusal will subject plaintiff to peculiar hardship. 46 And an in- 
 junction will not be granted when the injury complained of is 
 slight compared to the inconvenience to the defendant and the 
 public that would result from granting the injunction. 47 And 
 where an injunction would seriously affect the interests of the 
 defendants and would be of no advantage to the plaintiffs, the 
 court, in the exercise of the judicial discretion which it is bound 
 to exercise may properly refuse to grant the injunction. 48 An 
 injunction will not be granted to a party unless he has a clear legal 
 or equitable right which is being or about to be disturbed. 49 And 
 
 46. Connolly Mfg. Co. v. Wattles, 
 49 N. J. Eq. 92, 23 Atl. 123, where 
 the court said : " No consequences of 
 peculiar hardship can flow to the 
 complainant from a denial of its 
 present application. For reasons al- 
 ready stated it is extremely uncer- 
 tain whether he has on the vital 
 point in contest the least pretense of 
 right against the defendant. If an 
 injunction were granted under such 
 circumstances, the result would be 
 that the defendant would be deprived 
 of certain property belonging to him 
 by process of law, which according to 
 the evidence as it now stands, the 
 complainant has no right to what- 
 ever." See also Citizens Coach Co. 
 v. Camden, etc., R. Co., 29 N. J. Eq. 
 306; Noonan v. Grace, 49 N. Y. 
 Super. 116; Electrical Storage Co. v. 
 Whiting, 17 N. Y. W. Dig. 263. 
 
 47. Wood v. Bangs, 1 Dak. 179, 
 189. 46 N. W. 586; Becker v. Lebanon 
 & M. St. R. Co., 188 Pa. St. 484, 41 
 Atl. 612; Daugherty Typewriter Co. 
 v. Kittanning Iron & S. M. Co., 178 
 Pa. St. 215, 35 Atl. 111. 
 
 Where it is reasonably prob- 
 able that more injury will result 
 from the granting of an injunction 
 than will be prevented it should be 
 refused. Fesler v. Brayton, 145 Ind. 
 
 71, 44 N. E. 37, 32 L. R. A. 578. 
 
 48. Barney v. City of New York. 
 83 App. Div. (N. Y.) 237, 82 N. Y. 
 Supp. 124. 
 
 49. Mowday v. Moore, 133 Pa. St. 
 598, 19 Atl. 626, where plaintiff, 
 though knowing that the soil was 
 spongy and that the water from a 
 raceway on defendant's adjoining lot 
 passed to his cellar while he was 
 digging it, yet proceeded without 
 using the precautions which would 
 have afforded him protection. It was 
 held that plaintiff could not have in- 
 junction requiring defendant so to 
 reconstruct his buildings that the 
 water would not pass to plaintiff's 
 premises. See, also, Mirkil v. Mor- 
 gan, 134 Pa. St. 144, 19 Atl. 628; 
 Delaware, L. & W. R. Co. v. Central 
 S. Y. Co., 45 N. J. Eq. 50, 17 Atl. 
 146; Newark Aqueduct Board v. Pas- 
 saic, 45 N. J. Eq. 393, 18 Atl. 106; 
 Harper v. McElroy, 42 N. J. Eq. 280, 
 10 Atl. 879; Cheshire Mills v. Gow- 
 ing, 62 N. H. 618; Shivery v. 
 Streeper, 24 Fla. 103, 3 So. 865; 
 American Fire Hose Co. v. Callahan 
 Co., 41 Fed. 50; Raymond v. 
 Boston Hose Co., 39 Fed. 365. 
 The failure of a jury to agree in a 
 suit for the same injury is a good 
 reason for denying an injunction. 
 
 41
 
 § 20 Definition and Nature of Injunctions. 
 
 generally an injunction will never be granted when it will be pro- 
 ductive of hardship, oppression or injustice, or public or private 
 mischief. 50 So where the defendant disputes plaintiff's title or 
 denies his violation of plaintiff's rights the court is reluctant upon 
 an interlocutory order to grant plaintiff an injunction; and plain- 
 tiff should show that his inconvenience without it would greatly 
 exceed the defendant's inconvenience from it. 51 And under the 
 operation of fresh inventions and of forces which are not fully 
 understood it is so difficult to balance and adjust the equities of 
 parties that the courts are reluctant to interfere by injunction, or 
 having so interfered, to dissolve the injunction until after a trial 
 of the case upon the merits. 52 And where street railroad com- 
 panies had the right to use sand on their tracks when necessary to 
 provide footing for horses, during certain months of the year, but 
 an order was issued directing the police to prevent the use of sand 
 during other months, an injunction to restrain the execution of 
 the order was refused, because if granted it would leave to the 
 discretion of the railroad officials the decision as to when the 
 tracks did acquire to be sanded. 53 Again whatever right the owner 
 of property may have to an injunction, a stranger having no 
 interest in the property has no such right. 54 
 
 Mowday v. Moore, 133 Pa. St. 598, to the parties. Dobie v. Temporalities 
 
 19 Atl. 626. Only in a clear case will Fund (Quebec), 9 Reone Legale, 574. 
 
 a perpetual injunction issue. And the 52. Hudson River Tel. Co. v. 
 
 burden of showing such a case by Watervliet Turnpike & R. Co., 121 N. 
 
 facts and not by mere presumptions Y. 397, 405, 24 N. E. 832. 
 
 is on him seeking the injunction. 53. Dry Dock, etc., R. Co. v. 
 
 Spangler v. Cleveland, 43 Ohio St. Mayor, 47 Hun, 221. 
 
 526, 3 N. E. 365; Burnham v. Kemp- 54. Whether or not Laws N. Y. 
 
 ton, 44 N. H. 92. 1888, chap. 325, which provided for 
 
 50. Wood v. Bangs, 1 Dak. 179, the dredging and excavating of the 
 189, 46 N. W. 586; Sheldon v. Rock- old Bear race so as to render it 
 well, 9 Wis. 166 180. See, also, Mott navigable for canal boats, is void as 
 v. Underwood, 148 N. Y. 463, 42 N. virtually taking private property for 
 E. 1048, 32 L. R. A. 270. a public use without compensation, is 
 
 51. White v. Whitehead (Quebec), a question which can be raised only 
 7 Legal News, 292. The judge to by the owners of sucli race, and is no 
 whom an application for injunction is ground for enjoining the prosecution 
 mrulf should in the exercise of his of the work at the instance of a third 
 discretion consider the inconveniences person, who has no interest whatever 
 
 42
 
 Definition and Nature of Injunctions. 
 
 §21 
 
 § 21. Where plaintiff's rights are doubtful. — A preliminary 
 injunction should not be granted where plaintiff's right to it is 
 doubtful. 65 The prerequisites to the allowance of a preliminary 
 injunction are that the complainant must generally present a clear 
 title, or one free from reasonable doubt, and set forth acts done 
 or threatened by the defendant which will seriously or irreparably 
 injure his rights under such title, unless restrained. 56 Thus where 
 complainant made an arrangement with the representative of the 
 World's Columbian Exposition Company which was authorized 
 only to erect and equip the building, the control of the exhibit 
 being vested in a Congressional Commission, to supply for the 
 exposition building certain boilers, which were also to be used 
 
 in the race. Waterloo Woolen Mfg. 
 Co. v. Shanahan, 128 N. Y. 345, 28 
 N. E. 358. 
 
 55. United States. — Richards v. 
 Meissner, 158 Fed. 109; Capital City 
 Gaslight Co. v. Des Moines, 72 Fed. 
 829; Kilburn v. Ingersoll, 67 Fed. 
 46; Home Ins. Co. v. Nobles, 63 Fed. 
 642. 
 
 Florida. — Kahn v. Kahn, 15 Fla. 
 400. 
 
 Georgia. — Davi3 v. Jones, 97 Ga. 
 340, 22 S. E. 998; Thrasher v. 
 Holmes, 92 Ga. 571, 17 S. E. 899; 
 White v. Williamson, 92 Ga. 443, 17 
 S. E. 604. 
 
 Indiana. — Wallace v. McVey, 6 
 Ind. 300. 
 
 Massachusetts. — Charles River 
 Bridge Co. v. Warren Bridge, 6 Pick. 
 376. 
 
 Mississippi. — Green v. Lake, 54 
 Miss. 540, 28 Am. Rep. 378. 
 
 New Hampshire. — Cheshire Mills 
 v. Gowing, 62 N. H. 618. 
 
 New Jersey. — National Docks & N. 
 J. J. C. Ry. Co. v. Pennsylvania R. 
 Co., 54 N. J. Eq. 10, 33 Atl. 219; 
 Morris Canal & B. Co. v. Society for 
 Establishing Useful Manufactures, 5 
 N. J. Eq. 203; Hinchman v. Paterson 
 
 Horse R. Co., 17 N. J. Eq. 75, 86 Am. 
 Dec. 252. 
 
 New York. — Weiss v. Herlihy, 23 
 App. Div. 608, 49 N. Y. Supp. 81; 
 Warsaw Waterworks Co. v. Warsaw, 
 4 App. Div. 509, 40 N. Y. Supp. 28; 
 Howe v. Rochester Iron Mfg. Co., 66 
 Barb. 592; Dubois v. Budlong, 23 N. 
 Y. Super. Ct. 700; Spring v. Strauss, 
 16 N. Y. Super. Ct. 607; Fredericks 
 v. Mayer, 14 N. Y. Super. Ct. 227; 
 Hart v. City of Albany, 3 Paige, 218; 
 Keating v. Fitch, 14 Misc. R. 128, 
 35 N. Y. Supp. 641. 
 
 North Carolina. — McNair v. Bun- 
 combe County, 93 N. C. 370. 
 
 Pennsylvania. — Berkery v. Ber- 
 wind White C. M. Co. (Pa. 1908), 69 
 Atl. 329; Hicks v. American Natural 
 Gas Co., 207 Pt. St. 540, 57 Atl. 55; 
 Audenried v. Philadelphia & R. R. 
 Co., 68 Pa. St. 370, 8 Am. Rep. 195; 
 Scott v. Burton, 2 Ashm. 312; Raub 
 Coal Co. v. Waddell, 7 Kulp. 282; 
 Picar v. Bovalak, 7 Kulp. 241; 
 Scranton v. Delaware & H. C. Co., 12 
 Pa. Co. Ct. R. 241. 
 
 56. Stevens v. Missouri K. & T. 
 Ry. Co., 106 Fed. 771, 774, 45 C. C. 
 A. 611. 
 
 43
 
 § 22 Definition and Nature of Injunctions. 
 
 as exhibits, it was decided that he was not entitled to an injunc- 
 tion to prevent the use of other boilers in the building, because it 
 was not clear that the exposition representative had the power to 
 grant complainant such a privilege. 57 And an injunction will not 
 be granted to stay waste where the complainant's right to the 
 premises is doubtful. 58 While a court, having jurisdiction of 
 defendant, may no doubt enjoin him from wasting or interfering 
 with property, or asserting title thereto, though the property be 
 situated in a foreign country, it will not grant such injunction, 
 asked for on the sole ground that certain acts of the officials of a 
 foreign government, creating defendant's title to the property, are 
 alleged to be void. 59 
 
 §22. Same subject; patent causes.— Ordinarily when an al- 
 leged infringer of a patent presents a bona fide issue in fact or of 
 law, as, for instance, a prima facie right to continue his manu- 
 facture based on a decree of the patent office, the Federal courts 
 will not decide the merits of the issue on affidavits by granting a 
 preliminary injunction against the infringer, but will require it to 
 go over to the final hearing. 60 So, too, a preliminary injunction 
 
 57. Babcock, etc., Co. v. World's (N. Y.) 21. The court will not issue 
 Columbian Exposition Co., 54 Fed. an injunction to restrain waste un- 
 214. Where an agreement to supply less the complainant's title is clear 
 a manufacturing company with nat- or has been adjudicated on. Preston 
 ural gas authorizes the gas company v. Smith, 26 Fed. 884. 
 
 to shut off the gas for " want of sup- 59. Marshall v. Turnbull, 34 Fed. 
 
 ply," and in a suit to enjoin the com- 827. 
 
 pany from shutting off the gaa the 60. Ney Mf'g Co. v. Superior Drill 
 answer alleges that there is such a Co., 50 Fed. 152, per Sage, J.: "The 
 shortage of gas as to reduce the pres- motion for an injunction will be over- 
 sure from 275 to 130 pounds to the ruled, upon the authority of Good- 
 inch, though four additional wells year v. Dunbar, 1 Fish. Pat. Cas. 474. 
 have been connected with defendant's In that case the defendant claimed 
 line, plaintiff's right to the gas is so under a patent subsequent to the 
 doubtful as to warrant the dissolu- complainant's. Justice Grier. in pass- 
 tion of a preliminary mandatory in- ing upon a motion for a preliminary 
 junction. Black Lick Mfg. Co. v. injunction, said that the defendant, 
 Saltsburg Gas Co., 139 Pa. St. 448, in virtue of his patent, had a prima 
 21 Atl. 432. facie legal right to manufacture a 
 
 58. Storm v. Mann, 4 Johns. Ch. compound by his process, and that 
 
 44
 
 Definition and Nature of Injunctions. 
 
 §22 
 
 will not be granted in an infringement suit where the affidavits 
 of experts disclose a conflict that cannot be decided in complain- 
 ant's favor without danger of unjustly interfering with the busi- 
 ness of defendants, who are merely users of the device in question, 
 and whose financial responsibility is not questioned. 61 
 
 whether that process was a mere 
 colorable change from the older patent 
 (which is precisely the claim made 
 in this case), or was the same com- 
 bination or compound as that de- 
 scribed in the complainant's patent, 
 was the great question in dispute be- 
 tween the parties, and that, so far as 
 the judgment of the patent office af- 
 fected the case, it might be considered 
 as having been decided in favor of the 
 defendant. He declined to grant the 
 motion, and declared that whenever a 
 defendant presented a case showing 
 a bona fide issue in fact or of law, 
 or, as in that case, a prima fade 
 right to continue his manufacture, 
 founded on a decree of the patent of- 
 fice, and a consequent public grant, 
 he would not grant a preliminary in- 
 junction, and thus issue execution be- 
 fore judgment. He further said that 
 he would not decide the merits of a 
 bona fide issue in fact on ex parte 
 affidavits, nor anticipate the final 
 judgment of the court on the legal 
 questions, as if they had been brought 
 out on demurrer, or, it may be added. 
 upon the hearing. There are pre- 
 sented to the court upon this appli- 
 cation affidavits of experts and ex- 
 hibits of letters patent, and the court 
 is asked to consider these ex parte 
 statements, and upon them announce 
 a conclusion, at this stage of the 
 case, whether, on the one hand, the 
 complainant's patent is valid, and, on 
 the other, the defendant's manufac- 
 ture an infringement. That question 
 will have to go over until the final 
 
 hearing." Upon the application to a 
 Federal court for a preliminary in- 
 junction to prevent the infringement 
 of a patent if there appears to be a 
 reasonable doubt as to the plain- 
 tiff's right, or the validity of his pat- 
 ent, the court may require him to try 
 his title at law and then permit him 
 to return for an account in case the 
 trial should be in his favor. Ogle v. 
 Edge, 4 Wash. C. C. 584. 
 
 Where question of infringe- 
 ment in donbt preliminary injunc- 
 tion will not be granted. Sprague 
 Elec. R. & M. Co. v. Nassau Elec. R. 
 Co., 95 Fed. 821, 37 C. C. A. 286; 
 Blakely v. National Mfg. Co., 95 Fed. 
 136, 37 C. C. A. 27; Smith v. Meri- 
 den Britannia Co.. 92 Fed. 1003; 
 Richmond Mica Co. v. De Clyne, 90 
 Fed. 661. 
 
 61. Williams v. McNeely, 56 Fed. 
 265, per Dallas, J.: "An application 
 for a preliminary injunction is not 
 in patent causes any more than in 
 others, an available short cut to an 
 adjudication upon asserted, but dis- 
 puted and doubtful rights. Where, 
 upon such a motion, the defendant 
 avers that the subject matter of the 
 infringement alleged differs substan- 
 tially from that of the patent, the 
 question thus presented ought not, in 
 my judgment, to be decided upon the 
 ex parte affidavits, but should be left, 
 unless the defendant's contention be 
 plainly frivolous and unsupported, 
 entirely open for decision upon the 
 evidence as finally presented." 
 
 45
 
 §23 
 
 Definition and Nature of Injunctions. 
 
 § 23. Same subject; unsettled questions of law It may be 
 
 stated generally that a preliminary injunction will not be granted 
 where the right upon which the complainant founds his claim is 
 dependent upon a disputed question of law. 62 But under the pro- 
 cedure sanctioned by some decisions the plaintiff may establish 
 
 62. United States. — French v. 
 Brewer, Fed. Cas. No. 5096, 3 Wall. 
 Jr. 346. 
 
 Illinois. — Howell Co. v. Pope Glu- 
 cose Co., 171 111. 350, 49 N. E. 497. 
 
 New Jersey. — Stockton v. North 
 Jersey St. Ry. Co.. 54 N. J. Eq. 263, 
 34 Atl. 688; Newark & H. R. Co. v. 
 New Jersey Traction Co., 33 Atl. 475 ; 
 Atlantic City Waterworks Co. v. Con- 
 sumers' Water Co., 44 N. J. Eq. 427, 
 15 Atl. 581; Mandeville v. Harman, 42 
 N. J. Eq. 186, 7 Atl. 37; Roake v. 
 American Tel. Co., 41 N. J. Eq. 35, 2 
 Atl. 618; Jersey City Gas Light Co. 
 v. Consumers Gas Co., 40 N. J. Eq. 
 427, 2 Atl. 992; West Jersey R. Co. 
 v. Cape May, etc., R. Co., 34 N. J. 
 Eq. 164; National Docks R. Co. v. 
 Central R. Co., 32 N. J. Eq. 755; 
 Stevens v. Paterson, etc., R. Co., 20 
 N. J. Eq. 126. 
 
 'New York. — Noonan v. Grace. 49 
 N. Y. Super. Ct. 116; Gardner v. 
 Newburgh Trustees, 2 Johns. Ch. 162; 
 DeLacy v. Adams, 3 Misc. R. 432, 
 23 N. Y. Supp. 297. But see Corning 
 v. Troy, etc.. Factory, 40 N. Y. 191, 
 207. 
 
 North Carolina. — Western North 
 C. R. Co. v. Georgia & N. C. R. Co., 
 88 N. C. 79. 
 
 Ohio. — Ross v. Cincinnati L. & N. 
 Ry.. 27 Ohio Civ. Co. R. 135. 
 
 Pennsylvania. — Smith v. Reading 
 City Pass. R. Co., 156 Pa. St. 5. 26 
 Atl. 779; Fritz v. Erie City Pass. 
 R. Co., 155 Pa. St. 472, 26 Atl. 653; 
 
 Rhea v. Forsyth, 37 Pa. St 503, 78 
 Am. Dec. 441. 
 
 Vermont. — Prentice v. Larnard, 11 
 Vt. 135. 
 
 West Virginia. — Kanawha G. J. & 
 E. R. Co. v. Glen Jean L., L. & D. W. 
 R. Co., 45 W. Va. 119, 30 S. E. 86. 
 
 In Delaware, etc., R. Co. v. Central 
 Stock York Co., 43 N. J. Eq. 71, 
 10 Atl. 490, Van Fleet, "V. C, 
 said: "The defendants' business is 
 of recent origin. Their duties to 
 common carriers, if any exist, are 
 wholly undefined and consequently 
 unknown. The power of denning 
 them belongs to the common law 
 courts, and until they have been defined 
 by that tribunal of this State, which, 
 in respect to such matters, exercises 
 an exclusive jurisdiction, this court 
 cannot know that any exist, nor what 
 they are, nor whether an invasion or 
 denial of them constitutes such an in- 
 jury as this court may, in the right- 
 ful exercise of its power, redress by 
 injunction. In the language of Beas- 
 ley, C. J., no rule of equity is better 
 settled than the doctrine that the 
 complainant is not in a position to 
 ask for a preliminary injunction 
 when the right on which he founds 
 his claim is. as a matter of law, un- 
 settled. Citizens' Coach Co. v. Cam- 
 den, etc., R. Co., 29 N. J. Eq. 299. 
 This rule is jurisdictional. It stands 
 as a. limitation upon the power of 
 the court, and is, therefore, a law 
 unto the court which the court must 
 obey." 
 
 46
 
 Definition and Nature of Injunctions. 
 
 24 
 
 hi8 legal right and protect it by injunction in the same action. 63 
 And in a case in New York it is said: " We do not understand 
 that it is indispensably necessary under our present blended system 
 of procedure, that in case of a disputed title to land, the title must 
 be determined by a legal action before the court will interfere by 
 injunction to restrain alleged trespasses by one of the parties. 64 
 But plaintiff's legal right will not entitle him to an injunction if, 
 upon a consideration of the whole case, the court ought not in 
 conscience to grant it. 65 And where the issue appears to be one 
 of law as to the rights of the parties, which is fully presented on 
 the preliminary application, and no sufficient reason appears for 
 delaying decision on the question until final hearing a prelim- 
 inary injunction may be granted. 66 
 
 §24. Same subject; trifling grievances. — An injunction 
 
 pendente lite should not be granted in doubtful cases or for trifling 
 grievances. The injury whether it bs actual or threatened must 
 be a substantial one. 67 If one who claims a right will derive no 
 benefit from the exercise of such right it is decided that a court 
 
 63. Newark Aqueduct Board v. 
 Passaic, 45 N. J. Eq. 393, 18 Atl. 106; 
 Atlantic City Water Works v. Con- 
 sumers' Water Co., 44 N. J. Eq. 
 427, 15 Atl. 581; Delaware L. & W. 
 R. Co. v. Central Stock Yard Transit 
 Co., 43 N. J. Eq. 71, 10 Atl. 490; 
 Hart v. Albany, 3 Paige (N. Y.) 5 213. 
 
 64. Lacustrine Fertilizer Co. v. 
 Lake Guano & F. Co., 82 N. Y. 476, 
 4S6. Per Andrews, J., citing Corn- 
 ing v. Troy Iron & W. Co., 40 N. Y. 
 191; West Point Iron Co. v. Reymert, 
 45 N. Y. 403; Broiestedt v. South 
 Side R. R. Co., 55 N. Y. 220. Com- 
 pare Weed v. Roberts^ 22 Misc. R. 
 46, 49 N. Y. Supp. 366. 
 
 65. Power's Appeal, 125 Pa. St. 
 175. 
 
 66. Johnson v. Borough of Belmar, 
 58 N. J. Eq. 354, 357, 44 Atl. 166, 
 per Emery, V. C. 
 
 67. United States.— Taylor v. 
 Charter Oak Life Ins. Co., 17 Fed. 
 506. 
 
 Calfomia. — Jacob v. Day, 111 Cal. 
 571, 44 Pac. 243. 
 
 Connecticut. — Huntting v. Hart- 
 lord St. R. Co., 73 Conn. 179, 46 Atl. 
 824; Bigelow v. Hartford Bridge Co., 
 14 Conn. 565, 36 Am. Dec. 502. 
 
 Georgia. — Savannah & O. Canal 
 Co. v. Suburban & W. E. Ry. Co., 93 
 Ga. 240, 18 S. E. S24; Morrison v. 
 Latimer, 51 Ga. 519. 
 
 Illinois. — Cape v. District Fair 
 Ass'n, 99 111. 489, 39 Am. Rep. 30; 
 Barn v. Bragg, 70 111. 283. 
 
 Indiana. — Whitlock v. Consumers 
 Gas Trust Co., 127 Ind. 62, 26 N. E. 
 570; Stanffer v. Cincinnati R. & M. 
 R. Co. (Ind. App.), 70 N. E. 543. 
 
 Kentucky. — Barker v. Warren, 6 
 Ky. Law Rep. 86. 
 
 d-7
 
 §24 
 
 Definition and Nature of Injunctions. 
 
 of equity will not interfere to aid him in the assertion of it. 88 
 Where the right is not clear or the danger great an injunction 
 should not be granted till the rights of the parties are determined 
 on final hearing. 69 And a court of equity is not bound to issue an 
 injunction when it will produce great public or private mischief 
 merely for the purpose of protecting a technical or unsubstantial 
 right. 70 " Before an injunction will be awarded the party apply- 
 ing therefor must clearly show that he is possessed of a substantial 
 right from which injury will flow, unless the acts of which com- 
 plaint is made are restrained." n Thus, whatever may have been 
 the agreement between school and church trustees the court re- 
 
 M'chigan. — Hall v. Rood, 40 Mich. 
 46, 29 Am. Rep. 528. 
 
 Nevada. — Thorne v. Sweeney, 13 
 Nev. 415. 
 
 New Hampshire. — Fisher v. Car- 
 penter, 67 N. H. 569, 39 Atl. 1018; 
 Bassett v. Salisbury Mfg. Co., 47 N. 
 H. 426. 
 
 New Jersey. — Wakeman v. New 
 York, L. E. & W. R. Co., 35 N. J. Eq. 
 496; United N. J. R. & C. Co. v. 
 Standard Oil Co., 33 N. J. Eq. 123. 
 
 New York. — Pratt v. New York 
 Central & H. R. R. Co., 90 Hun, 83, 
 N. Y. Supp. — ; Phelps v. Water- 
 town, 61 Barb. 121; Greanelle v. 
 Mercantile Ben. Assn, 35 N. Y. Supp. 
 796; Neiman v. Butler, 19 N. Y. 
 Supp. 403; Purdy v. Manhattan El. 
 R. Co., 13 N. Y. Supp. 295; New York 
 Printing and Dyeing Establishment 
 v. Fitch, 1 Paige, 97. 
 
 Pennsylvania. — Blanchard v. Rey- 
 burn, 1 Wkly. Notes Cas. 529. 
 
 Rhode Island. — McMaugh v. Burke, 
 12 R. I. 499. 
 
 South Dakota. — State v. Thorson, 
 9 S. D. 149, 68 N. VV. 202, 33 L. R. 
 A. 182. 
 
 Texas. — Watrous v. Rogers, 16 Tex. 
 410. 
 
 Utah. — Tarmer v. Nelson, 25 Utah, 
 226, 70 Pac. 984; Crescent Min. Co. 
 v. Silver King Min. Co., 17 Utah, 444, 
 54 Pac. 244. 
 
 Wisconsin. — Ebert v. Langlade 
 County, 107 Wis. 569, 83 N. W. 942; 
 Head v. James, 16 Wis. 641. 
 
 68. Owen v. Field, 12 Allen 
 (Mass.) 457. 
 
 69. Hall v. Rood, 40 Mich. 46; 
 McLaughlin v. Sandusky, 17 Neb. 
 110; Redfield v. Middleton, 7 Bosw. 
 (N. Y.) 649; Manhattan Gas Light 
 Co. v. Barker, 36 How. Pr. (N. Y.) 
 233 ; Dunn v. Bryan, 7 Ir. R. Eq. 143. 
 
 A citizen and taxpayer has no 
 such interest in the subject matter as 
 to entitle him to maintain a private 
 action to restrain the organization of 
 a county. Hughes v. Dobb9, 84 Tex. 
 Sup. 502, 19 S. W. 684. 
 
 70. Knoth v. Manhattan Ry. Co., 
 187 N. Y. 243, 252, 79 N. E. 1015, 
 aff'g 109 App. Div. 802, and citing 
 Gray v. Manhattan Ry. Co., 128 N. 
 Y. 499, 28 N. E. 498. See Duncan v. 
 Hey ward (S. C. 1906), 54 S. E. 760. 
 
 71. Johnstown Min. Co. v. Butte 
 & Boston Consol. Min. Co., 60 App. 
 Div. (N. Y.) 344, 70 N. Y. Supp. 
 257, per Hatch, J. 
 
 4S
 
 Definition and Nature of Injunctions. § 24 
 
 fused to enjoin the church from holding services in the church 
 room above the school during school hours, because the evidence 
 did not show that a little preaching upstairs disturbed or injured 
 the school. 72 So it has been decided in New York that an injunc- 
 tion against the operation of an elevated railroad, constructed in 
 a public street in the city of New York by authority of law, should 
 not be granted at the suit of an abutting owner on proof of the 
 wrongful appropriation of the appurtenant easements of light, air, 
 and access when the plaintiff fails to show any substantial mone- 
 tary damage to his property, or loss suffered by reason of defend- 
 ant's acts. 73 And where a telephone company has been authorized 
 by the city to place its overhead wires in underground conduits, 
 an act in the interest of the public safety, a mere abutting owner 
 cannot enjoin the company from constructing such a conduit in 
 the street in front of his property, where, although he alleges that 
 the conduit will constitute a continuing trespass, he does not allege 
 that any substantial pecuniary damage will result therefrom to 
 his easements or to his property. 74 And a preliminary injunction 
 will not be granted where the complainant's rights rest on doubtful 
 points of constitutional law or the questionable construction of a 
 statute. 73 And a court of equity will not grant an injunction nor 
 compel the performance of a covenant where there is no substantial 
 wrong to be righted, 76 and will not compel the performance of a 
 
 72. Miller v. Nelson, 14 Ky. Law. Connecticut. — Quinn v. Roath. 37 
 829, 21 S. W. 875. Conn. 16. 
 
 73. O'Reilly v. New York Elev. R. Illinois.— Iglehart v. Vail, 73 I1L 
 R. Co., 148 N. Y. 347, 42 N. E. 1063. 63; Fish v. Leser, 69 111. 394. 
 
 74. Castle v. Bell Telephone Co., Iowa. — Thurston v. Arnold, 43 
 30 Misc. R. (N. Y.) 38, 61 N. Y. Iowa, 43; Sweeney v. O'Hora, 43 
 Supp. 743. Iowa, 34. 
 
 75. Paterson R. Co. v. Grundy, 51 New Jersey. — Plummer v. Kepler, 
 N. J. Eq. 213. 26 Atl. 788. See, also, 26 N. J. Eq. 481. 
 
 Ryan v. Williams, 100 Fed. 177. New York. — Peters v. Delaphine, 
 
 Compare Fairfield Floral Co. v. Brad- 49 N. Y. 367, 373; Neiman v. Butler, 
 
 bury, 87 Fed. 415. 46 N. Y. St. 928, 932; Purdy v. Man- 
 
 76. United States.— Taylor v. Long- hattan R. Co., 36 N. Y. St. 43 ; Brush 
 wortli, 14 Pet. 172, 10 L. Ed. 405; v. Metropolitan R. Co., 44 N. Y. St 
 King v. Hamilton, 4 Pet. 311, 7 L. 111. 
 
 Ed. 869; Mechanics Bank v. Lynn, Virginia. — McComas v. Easley, 21 
 
 1 Pet. 376, 7 L. Ed. 185. Gratt. 23. 
 
 49
 
 § 25 Definition and Nature of Injunctions. 
 
 statutory provision unless first satisfied that the thing asked for 
 will be useful to plaintiff. 77 The plaintiff will be required to 
 make out a case free from reasonable doubt, where he offers no 
 security for defendant's damages and the injunction would stop 
 defendant's entire business. 78 But where defendant under a doubt- 
 ful claim is about to do permanent injury to real property, and the 
 injunction will do but trifling injury to him easily compensated in 
 damages, it should be granted. 79 
 
 § 25. Balance of convenience in doubtful cases. — Where the 
 
 rights of the parties are at all doubtful the court applied to for 
 an injunction should look at the balance of convenience, and act 
 upon the consideration of the comparative inconvenience which 
 may arise from granting or withholding the injunction. 80 In this 
 connection it is said in a recent case: " In a doubtful case, where 
 the granting of the injunction would, on the assumption that the 
 defendant ultimately will prevail, cause greater detriment to him 
 than would, on the contrary assumption, be suffered by the com- 
 plainant, through its refusal, the injunction usually should be 
 denied. But where, in a doubtful case, the denial of the injunc- 
 tion would, on the assumption that the complainant ultimately 
 will prevail, result in greater detriment to him than would, on the 
 
 77. Clarke v. Rochester R. Co., 18 tile Ben. Ass'n, 35 N. Y. Supp. 796. 
 Barb. (N. Y.) 350. An injunction See Mount Morris Bank v. New York 
 will not be granted, as a general rule, & H. R. R. Co., 50 Misc. R. 417, 100 
 where the benefit of it to the com- N. Y. Supp. 544. 
 
 plainant is slight, and the mischief Oregon. — Mann v. Parker (Oreg. 
 
 and embarrassment to the defendant 1906 ) t 86 Pac. 598. 
 
 considerable. Jones v. City of New- Pennsylvania. — Berkey v. Berwind 
 
 ark, 11 N. J. Eq. 452. White C. M. Co. (Pa. 1908), 69 Atl. 
 
 78. Dubois v. Budlong, 15 Abb. Pr. 329. 
 
 (N. Y.) 445. Texas.— Elliott v. Ferguson (Tex. 
 
 79. Church of Holy Innocents v. Civ. App. 1907), 103 S. W. 453. 
 Keech 5 Bosw. (N. Y.) G91. England. — Attorney General v. 
 
 80. Illinois.— Cleveland v. Martin, Dorking, L. R. 20 Ch. D. 595; Gar- 
 218 111. 73, 75 N. E. 772; Lloyd v. rett v. Banstead, etc., R. Co., 13 W. 
 Catlin Coal Co., 210 111. 460, 71 N. Rep. 878; Clowes v. Beck, 20 L. J. N. 
 E. 335. S. Ch. 505. 
 
 Hew York. — Greavelle v. Mercan- 
 
 50
 
 Definition and Nature of Injunctions. § 25 
 
 contrary assumption, be sustained by the defendant through its 
 allowance, the iujuuction usually should be granted. The balance 
 of convenience or hardship ordinarily is a factor of controlling 
 importance in cases of substantial doubt existing at the time of 
 granting or refusing the preliminary injunction. Such a doubt 
 may relate either to the facts or to the law of the case or to both." 81 
 Thus an injunction to restrain a defendant railroad company from 
 entering into an agreement with another company which would be 
 inconsistent with a subsisting agreement between defendant and 
 the plaintiff will be refused if the inconvenience to arise to defend- 
 ant from granting it will be greater than the inconvenience to arise 
 to plaintiff from refusing it. 82 So, where a plaintiff sues for 
 specific performance of a contract for the sale of land, and there 
 is a question whether any contract exists, the court will not restrain 
 the owner from dealing with it until a suit for specific perform- 
 ance has been disposed of. S3 And where the court could not impute 
 to the parties to a lease an intention that the demised building 
 should be used for wool-broking purposes or other purposes requir- 
 ing an extra amount of light, but that all that could be reasonably 
 deemed to have been in their contemplation was the grant of 
 sufficient light for ordinary business purposes in the city of 
 London, an injunction was refused to protect plaintiff in the 
 enjoyment of such extra amount of light. S4 If on the one hand 
 irreparable injury may be caused by withholding the injunction, 
 while on the other hand any injury caused by the injunction can 
 be compensated by damages the court will grant it upon the plain- 
 tiff's giving a bond to abide any order as to damages that may 
 afterwards be made in the suit. 85 And in granting an injunction 
 the court should also consider the amount of injury which may be 
 thereby inflicted on third parties and strangers to the suit. 85 
 
 81. Harriman v. Northern Securi- 83. Hadley v. London Bank, 13 W. 
 ties Co., 132 Fed. 464, 475, per Brad- Rep. 978. 
 
 ford, J. 84. Corbett v. Jonas (1892), 67 L. 
 
 82. Shrewsbury v. Shrewsbury, T. 191. 
 
 etc., Rep. Co., 1 Sim. N. S. 410; 15 85. Cork v. Rooney, L. R. 7 Ir. 191. 
 
 Jur. 548. 86. Maythorn v. Palmer, 13 W. 
 
 Rep. 37; 11 Jur. N. S. 230. 
 
 51
 
 §26 
 
 Definition and Nature of Injunctions. 
 
 § 26. Adequacy of legal remedy ; general rule. — It is a general 
 rule, not always easy of application, that an injunction should not 
 be granted to a party who has an adequate remedy at law. 87 The 
 
 87. United States. — Scottish Union 
 t N. I Co. v. Bowland, 196 U. S. 611, 
 25 S. Ct. 345, 49 L. Ed. 619; Kirwan 
 v. Murphy, 189 U. S. 35, 54, 23 Sup. 
 Ct. 599, 47 L. Ed. 698; Parker v. 
 Winnipisiogee Lake C. & W. Co., 67 
 U. S. 545, 17 L. Ed. 333; Montgom- 
 ery Traction Co. v. Montgomery 
 Amusement Co., 140 Fed. 988, 72 C. 
 C. A. 682; Protector & C. Co. v. 
 Mahin, 93 Fed. 875; Counterbalance 
 Elev. Co. v. Cahill & H. Elev. Co., 86 
 Fed. 338; Spring v. Domestic Sew. 
 Mach. Co., 13 Fed. 446. 
 
 Alabama. — Norwood v. Tyson, 138 
 Ala. 269, 36 So. 370; Brown v. 
 Brown, 68 Ala. 114. 
 
 Alaska. — See Lindeberg v. Dove- 
 spike, 2 Alaska, 177. 
 
 Arkansas. — Cooper v. DeVall (Ark. 
 1906), 98 S. W. 976; Wingfield v. 
 McLure, 48 Ark. 510, 3 S. W. 439; 
 Stillwell v. Oliver, 35 Ark. 184; King 
 v. Clay, 34 Ark. 291. 
 
 California. — Richards v. Kirk- 
 patrick, 53 Cal. 433; Logan v. Hille- 
 gass, 16 Cal. 200; Middleton v. 
 Franklin, 3 Cal. 238. 
 
 Colorado. — Woodward v. Ellsworth, 
 4 Colo. 580. 
 
 Connecticut. — Whittlesey v. Hart- 
 ford P. & F. R. Co., 23 Conn. 421. 
 
 District of Columbia. — Bohrer v. 
 Fay, 3 MacA. 145. 
 
 Georgia. — Carstarphen Warehouse 
 Co. v. Fried, 124 Ga. 544, 52 S. E. 
 598; Burke v. Beall, 77 Ga. 271; 3 
 S. E. 155; Nicholson v. Cook, 76 Ga. 
 24; Norwood v. Dickey, 18 Ga. 528. 
 
 Illinois. — Palmer v. Gardiner, 77 
 111. 143; Booth v. Koehler, 51 111. 
 App. 370. 
 
 Indiana. — Ricketts v. Spraker, 77 
 Ind. 371; Brown v. Herron, 59 Ind. 
 61. 
 
 Iowa. — Ewing v. Webster City, 103 
 Iowa 226, 72 N. W. 511. 
 
 Kentucky. — Hahn v. Hart, 12 B. 
 Mon. 426; Jones v. Chiles, 3 T. B. 
 Mon. 340; Hill v. Anderson, 28 Ky. 
 Law Rep. 1032, 90 S. W. 1071. 
 
 Louisiana. — Gusman v. DePoret, 33 
 La. Ann. 333. 
 
 Maryland. — Chappell v. Stewart, 82 
 Md. 323, 33 Atl. 542, 37 L. R. A. 873; 
 Webbe v. Scotten, 59 Md. 72 ; Bank v. 
 Busey, 34 Md. 437; Lewis Levy, 16 
 Md. 85. 
 
 Massachusetts. — Brewer v. Spring- 
 field, 97 Mass. 152. 
 
 Minnesota. — Goodrich v. Moore, 2 
 Minn. 61, 72 Am. Rep. 74. 
 
 Mississippi. — Sturges v. Jackson 
 (Miss. 1906), 40 So. 547; Poindexter 
 v. Henderson, 1 Walk. 176, 12 Am. 
 Dec. 550. 
 
 Missouri. — Planet P. & F. Co. v. 
 St. Louis O. H. & C. Ry. Co., 115 Mo. 
 613, 22 S. W. 616; McPike v. Pew, 
 48 Mo. 525; Steines v. Franklin 
 County, 48 Mo. 167, 8 Am. Rep. 87. 
 
 Montana. — Beck v. Fransham, 21 
 Mont. 117 u 53 Pac. 96. 
 
 Nebraska.— Mohatt v. Hut (1906), 
 106 N. W. 659; Wehmer v. Fokenga, 
 57 Neb. 510, 78 N. W. 28; Warlier v. 
 Williams, 53 Neb. 143, 73 N. W. 539; 
 Normand v. Otoe Co., 8 Neb. 18. 
 
 Nevada. — Wells Fargo & Co. v. 
 Dayton, 11 Nev. 161; Sherman v. 
 Clark, 4 Nev. 138, 97 Am. Dec. 516. 
 
 New Hampshire. — Fisher v. Car- 
 penter, 67 N. H. 569, 39 Atl. 1018; 
 Brown v. Concord, 56 N. H. 375. 
 
 52
 
 Definition and Nature of Injunctions. 
 
 §26 
 
 jurisdiction of a court of equity to grant an injunction will not 
 be exercised where its object can be as well attained in the ordi- 
 
 New Jersey. — Sperry & Hutchinson 
 Co. v. Vine, 66 N. J. Eq. 339, 57 Atl. 
 1036; New Jersey Junction R. R. Co. 
 T. Woodward, 61 N. J. Eq. 1, 47 Atl. 
 273; Dusenbury v. City of New- 
 ark, 25 N. J. Eq. 295; Hoagland v. 
 Inhabitants of Delaware Twp. 17 N. 
 J. Eq. 106; Kerlin v. West, 4 N. J. 
 Eq. 449. 
 
 New York. — Fox v. Fitzpatrick, 190 
 N. Y. 259, 82 N. E. 1103; Delaney v. 
 Flood, 183 N. Y. 323, 76 N. E. 209; 
 Thomas v. Musical Mut. P. U., 121 
 N. Y. 45, 24 N. E. 24, 8 L. R. A. 175; 
 Floyd-Jones v. United Elec. L. Co., 
 55 Misc. R. 529; Ehrich v. Grant, 111 
 App. Div. 196, 97 N. Y. Supp. 600; 
 Babcock v. Leonard, 111 App. Div. 
 294, 97 N. Y. Supp. 861; Fullan v. 
 Hooper, 66 How. Pac. 75; People v. 
 Coffin, 7 Hun, 608; Interborough 
 Rapid T. R. Co. v. Gallagher, 44 Misc. 
 R. 536, 90 N. Y. Supp. 104; Bedell v. 
 McCellan, 11 How. Prac. 172; Gra- 
 ham v. Stagg, 2 Paige, 321; Mallett 
 v. Weybosset Bank, 1 Barb. 217. 
 
 North Carolina. — Kistler v. Weaver, 
 135 N. C. 388, 47 S. E. 478; Grant v. 
 Moore, 88 N. C. 77; Parker v. Jones, 
 68 N. C. 276, 75 Am. Dec. 441; Long 
 v. Merrill, 4 N. C. 549, 7 Am. Dec. 
 700. 
 
 North Dakota. — Continental Hose 
 Co. v. Mitchell (1906), 105 N. W. 
 1108. 
 
 Ohio. — Sample v. Ross, 16 Ohio, 
 419. 
 
 Oklahoma. — Thompson v. Tucker, 
 15 Okl. 486, 83 Pac. 413; Winans v. 
 Beidler, 6 Okla. 603, 52 Pac. 405. 
 
 Oregon. — Jackson v. Stearns (Oreg. 
 1906), 84 Pac. 798; Wells, Fargo & 
 Co. v. Wall, 1 Oreg. 295. 
 
 Pennsylvania. — Mercantile Library 
 
 Co. v. University of Pennsylvania, 220 
 Pa. St. 328, 69 Atl. 861; Wallace v. 
 Baltimore & O. R. Co., 216 Pa. St. 
 311, 65 Atl. 665, Burke v. Gibson, 6 
 Kulp. 310; Seal v. Northern Cent. R. 
 Co v 1 Pears. 547. 
 
 South Carolina. — Miller v. Furse, 
 1 Bailey Eq. 187. 
 
 Tennessee. — Williams v. Wright 9 
 Humph. 493. 
 
 Vermont. — White v. Booth, 7 Vt. 
 131. 
 
 Virginia. — Buffalo v. Town of Poco- 
 hontas, 85 Va. 222, 7 S. E. 238. 
 
 Washington. — Wilkes v. Hunt, 4 
 Wash. 100, 29 Pac. 830. 
 
 West Virginia. — Lance v. McCoy, 
 34 W. Va. 416, 12 S. E. 728. 
 
 Wisconsin. — Chicago & N. W. Ry. 
 Co. v. McKeigue, 126 Wis. 574, 105 
 N. W. 1030; Crandall v. Bacon, 20 
 Wis. 639, 91 Am. Dec. 451. 
 
 Wyoming. — Anthony Wilkinson 
 Livestock Co. v. Mcllquam, 14 Wyo. 
 209, 83 Pac. 364. 
 
 Equity is chary of its powers: 
 it employs them only when the im- 
 potent or tardy process of the law 
 does not afford that complete and 
 perfect remedy or protection which 
 the individual may be justly entitled 
 to. When therefore it is shown that 
 there is a complete and adequate 
 remedy at law equity will afford no 
 assistance. Sherman v. Clark, 4 Nev. 
 138, 141, 97 Am. Dec. 576, per Lewis, 
 J. 
 
 It is elementary that an injunc- 
 tion will not lie to restrain the doing 
 of an act where there is a speedy and 
 adequate remedy at law. Vander- 
 burgh v. City of Minneapolis. 93 
 Minn. 81, 100 N. W. 668, per Brown, 
 J.
 
 § 26a 
 
 Definition and Nature of Injunctions. 
 
 nary tribunals, or by other means specially provided by law for 
 that purpose. 88 
 
 § 26a. Adequacy of legal remedy; what essential to — A 
 
 remedy at law is not to be regarded as adequate, so as to exclude 
 the right to an injunction, unless it is reasonably practical and 
 direct in affording relief. 89 It is not enough that there is such a 
 remedy but it must be plain and adequate, or in other words, as 
 practical and efficient to the ends of justice and its prompt admin- 
 istration as the remedy in equity. 90 And where in order to avail 
 himself of the legal remedy a party must go into a foreign juris- 
 diction, it cannot be regarded as an adequate legal remedy within 
 the application of this rule of law. 91 For the purpose of deteir- 
 mining whether the remedy at law will afford complete justice the 
 
 This rule and its reason are 
 well expressed in Thomas v. Musi- 
 cal Mut. Protective Union, 121 N. Y. 
 45, 24 N. E. 24. "The creation of 
 equity jurisdiction arose out of the 
 inability of courts of law, through the 
 inflexibility of their rules, and want 
 of power, to adapt judgments to the 
 special circumstances of cases, to 
 reach and do complete justice in all 
 cases. It is therefore a cardinal rule 
 of equity that it will not entertain 
 jurisdiction of cases where there is 
 an adequate remedy at law, or grant 
 relief unless for the purpose of pre- 
 venting serious and irreparable in- 
 jury " — citing McHenry v. Jewett, 90 
 N. Y. 58; People v. Canal Board, 55 
 N. Y. 394. Rev. St. Mo. § 2722, 
 which declares that the remedy by 
 injunction shall exist in all cases to 
 prevent a legal wrong, when an ade- 
 quate remedy at law cannot be af- 
 forded by an action for damages, does 
 not enlarge the equity jurisdiction. 
 Neiser v. Thomas 12 S. W. 725, 99 
 Md. 224. 
 
 88. People v. Horton, 5 Hun (N. 
 Y), 516. 
 
 89. Irwin v. Lewis, 50 Miss. 363; 
 Watson v. Sutherland, 5 Wall. (U. 
 S.) 74, 18 L. Ed. 580. 
 
 90. United States. — Boyce's Execu- 
 tors v. Grundy, 28 U. S. (3 Pet.) 210, 
 7 L. Ed. 655; Williams v. Neely, 134 
 Fed. 1. 
 
 Indiana. — Meyer v. Town of Boon- 
 ville, 162 Ind. 165, 70 N. E. 146. 
 
 Kansas. — Mendenhall v. School Dis- 
 trict (Kan. 1907), 90 Pac. 773. 
 
 Mississippi. — Irwin v. Lewis, 50 
 Miss. 363. 
 
 Nebraska. — Richardson Drug Co. v. 
 Meyer, 54 Neb. 319, 74 N. W. 575. 
 See, also, Niniger v. Norwood, 72 Ala. 
 277, 47 Am. Rep. 412; Sherman v. 
 Clark, 4 Nev. 138, 97 Am. Dec. 516. 
 
 91. Stanton v. Dewey, 46 Conn. 
 595, wherein Judge Pardee said: 
 '' No legal remedy can be considered 
 as adequate which a party is com- 
 pelled to go into a foreign jurisdic- 
 tion to avail himself of. It must be 
 a remedy which our own court can 
 apply." 
 
 54
 
 Definition and Natube of Injunctions. 
 
 §26b 
 
 court will take into consideration all the circumstances of the case 
 and the conduct of the parties. 92 
 
 § 26b. Adequacy of legal remedy; application of rule. — In 
 
 the application of the general rule 93 it has been generally decided 
 that an injunction will not be: granted to a complainant who has 
 an adequate remedy at law in an action for damages. 94 So a party 
 to a contract is not entitled to an injunction to prevent a breach 
 by the other party where it appears that damages will be an 
 
 92. Drew v. Geneva, 150 Ind. 662, 
 50 N. E. 871, 42 L. R. A. 814. 
 
 93. See § 26 herein. 
 
 94. United State. — Maningault v. 
 Springs, 199 U. S. 473, 26 S. Ct. 127, 
 50 L. Ed. 274, affg 123 Fed. 707; 
 McCarthy v. Bunker Hill & S. M. & 
 C. Co., 147 Fed. 981 ; General Electric 
 Co. v. Westinghouse Elec. & M. Co., 
 144 Fed. 458; Counterbalance Elev. 
 Co. v. Cahill & H. Elev. Co., 86 Fed. 
 338; Spooner v. McConnell, 1 McLean 
 337, Fed Case No. 13245. 
 
 California. — Middleton v. Franklin, 
 3 Cal. 238. 
 
 Florida. — Cowan v. Skinner (Fla. 
 1907), 42 So. 730. 
 
 Georgia. — Detwiler v. Bainbridge 
 Grocery Co., 119 Ga. 981, 47 S. C. 
 553; Morrison v. Latimer, 51 Ga. 519. 
 
 Illinois. — Lloyd v. Catlin Coal Co., 
 109 111. App. 37, aff'd 210 111. 460, 71 
 N. E. 335; Goodell v. Lassen, 69 111. 
 145. 
 
 Indiana. — Christman v. Howe, 163 
 Ind. 330, 70 N. E. 809. 
 
 Ioica. — Dinwiddie v. Roberts, 1 G. 
 Greene, 363. 
 
 Maine. — Haskell v. Thurston, 80 
 Me. 129, 13 Atl. 273. 
 
 Maryland. — Hardesty v. Taft, 23 
 Md. 512, 87 Am. Dec. 584. 
 
 Mich gan. — Howard v. Bellows 
 (Mich. 1907) 111 N. W. 1047. 
 
 Mississippi. — Whitfield v. Rogers, 
 26 Miss. 84, 59 Am. Dec. 244. 
 
 Missouri. — Victor Min. Co. v. 
 Morningstar Min. Co., 50 Mo. App. 
 525. 
 
 Montana. — Atchison v. Peterson, 1 
 Mont. 561. 
 
 New Jersey. — Jacquelin v. Erie R. 
 Co. (N. J. Ch. 1905), 61 Atl. 18; 
 Morris Canal & B. Co. v. Central R. 
 Co., 16 N. J. Eq. 419; Warne v. 
 Morris Canal & B. Co., 5 N. J. Eq. 
 410. 
 
 New York. — Delaney v. Flood, 183 
 N. Y. 323, 76 N. E. 209; Ehrich v. 
 Grant, 111 App. Div. 196, 97 N. Y. 
 Supp. 600; Swett v. Troy, 62 Barb. 
 630, 12 Abb. Pr. (N. S.) 100; Water- 
 bury v. Dry Dock, E. B. & B. R. Co., 
 54 Barb. 388; Drake v. Hudson R. R. 
 Co., 7 Barb. 508. 
 
 North Carolina. — Jordan v. Lanier, 
 73 N. C. 90. 
 
 Ohio. — Commercial Bank v. Bow- 
 man, 1 Handy, 246; New York & B. 
 Co. v. Herrmann, 27 Ohio Cir. C. Ct. 
 R. 694. 
 
 Oregon. — Mann v. Parker (1906), 
 86 Pac. 598. 
 
 Pennsylvania. — Shaw v. National 
 Transit Co., 4 Pa. Co. Ct. R. 363. 
 
 Virginia. — James River &, Kanawha 
 Co. v. Anderson, 12 Leigh. 278. 
 
 Wisconsin. — Stroebe v. Fehl, 22 
 Wis. 337. 
 
 55
 
 § 26b Definition and Natuee of Injunctions. 
 
 adequate remedy. 95 And the operation of an electric light plant 
 will not be enjoined pendente lite at the suit of a private indi- 
 vidual who has an adequate remedy at law for any damage which 
 may be sustained as a result of its operation. 96 Nor will the 
 employment of detectives to follow a person be enjoined as the 
 complainant has an adequate remedy at law for the annoyance, 
 inconvenience and injury sustained thereby. 97 And an action at 
 law on a bond will not be enjoined on the ground that the bond 
 has been paid and fraudulently assigned to plaintiff since such 
 defense is available at law ; and especially is such relief to be 
 denied where plaintiff has already taken a part of her evidence, 
 including the testimony of a witness who is now dead. 98 And a 
 surety cannot have the enforcement of a judgment against him 
 and his solvent principal restrained on the ground of the princi- 
 pal's primary liability since he has an adequate legal remedy by 
 paying the debt and suing the principal for reimbursement. 99 And 
 the courts will not injunctively prevent the existence of a nuisance 
 in a highway where the remedy by indictment is sufficient to 
 abate it. 1 Nor will they grant an injunction to a debtor arrested 
 on capias where he has an adequate remedy at law by motion to 
 quash the writ; 2 nor where the party has his remedy by attach- 
 
 95. Martin v. Murphy, 129 Ind. 99. Stein v. Benedict, 83 Wis. 603, 
 464, 28 N. E. 1118; Hemsley. v. 53 N. W. 891. 
 
 Myers, 45 Fed. 283. 1. Raritan Township v. Port Read- 
 
 96. Floyd- Jones v. United Elec. L. ing R. Co., 49 N. J. Eq. 11, 23 Atl. 
 Co., 55 Misc. R. (N. Y.) 529, 106 N. 127; Smith v. State, 3 Zab. 130; 
 Y. Supp. 648. State v. Morris, etc.. R. Co., 3 Zab. 
 
 97. Chappell v. Stewart, 82 Md. 360; Freeholders v. State, 13 Vroom, 
 323, 33 Atl. 542, 37 L. R. A. 783. 263; State v. Addey, 14 Vroom, 115. 
 
 97. Chase's Ex'r v. Chase, 50 N. 2. Turner v. Norton, 31 111. App. 
 
 J. Eq. 143, 24 A. 914. An injunction 423. See a good illustration of the 
 
 will not be granted to restrain a rule in Harding v. Hawkins, 141 111. 
 
 party from instituting a proceeding 572, 31 N. E. 307, where an injunc- 
 
 in equity for an account, etc., where tion was refused to restrain the col- 
 
 the complainant has an equitable de- lection of a judgment. Also New Or- 
 
 fense to such proceedings which he leans Mfg. Co. v. Lowenstein (Miss.), 
 
 can set up in his answer. Hall v. 11 So. 187; Harrison v. Hill, 37 111. 
 
 Fisher, 1 Barb. Ch. 53. See Fuller App. 30; Dierks v. Highway Comrs. 
 
 v. Cadwell, 6 Allen, 503. 142 111. 197. 31 N. E. 496; Drainage 
 
 Comrs. v. Sconce, 38 111. App. 120. 
 
 5G
 
 Definition and Nature of Injunctions. 
 
 §27 
 
 m<ent; J nor will an injunction be granted to prevent the sale of 
 goods by an assignee where an action of replevin or trover is 
 adequate for their recovery; 4 nor to restrain an execution where 
 the proper remedy is by motion to set it aside ; 5 nor to restrain the 
 exercise of the powers of a committee to an insane person where 
 their appointment is void, because there is an adequate remedy at 
 law by application to revoke the appointment. 6 And a court haviug 
 jurisdiction of the parties to an action for an absolute divorce, 
 has power to decree in the judgment awarded, that the guilty 
 wife shall be prohibited from using the full name, or surname of 
 her husband as her name or as any portion of her name ; but where 
 the judgment contains such a provision, the husband cannot, upon 
 the wife's subsequent use of his surname, maintain another action 
 to restrain such use as he can obtain relief under the original 
 judgment still in force. 7 
 
 § 27. The same subject. — In the settlement of conflicting 
 claims to such personal property as has no prix d'ajfection a court 
 
 3. Carstarphen Warehouse Co. v. 
 Fried, 124 Ga. 544, 52 S. E. 598; 
 Spitz v. Kerfoot, 42 Mo. App. 77; 
 Winans v. Beidler, 6 Okla. 603, 52 
 Pae. 405. 
 
 4. McDonald v. Beyne, 58 Hun (N. 
 Y.), 611. See also following cases: 
 
 Illinois. — Bodman v. Lake Fork 
 District, 132 111. 439, 24 N. E. 630. 
 
 Indiana. — Smith v. Goodknight, 121 
 Ind. 312, 23 N. E. 148; Martin v. Orr, 
 96 Ind. 27. 
 
 Iowa. — Council Bluff v. Stewart, 51 
 Iowa, 385. 
 
 Kansas. — Van Natta Lynds Drug 
 Co. v. Gerson, 43 Kan. 660, 23 Pac. 
 1071; Martin v. Ingham, 38 Kan. 
 641, 17 Pac. 162. 
 
 Maryland. — Welde v. Scotten, 59 
 Md. 72; Frazier v. White, 49 Md. 1. 
 
 Michgan. — Detroit Base Ball Club 
 t. Deppert, 61 Mich. 63. 
 
 New Jersey. — Roemer v. Conlon, 
 
 45 N. J. Eq. 234, 19 Atl. 664; Bailey 
 v. Schnitzius, 45 N. J. Eq. 184, 16 
 Atl. 680. 
 
 Wisconsin. — Wolf River Co. v. Peli- 
 can Boom Co., 83 Wis. 426, 53 N. W. 
 678. 
 
 Where two persons claimed 
 logs is possession of a boom com- 
 pany a mandatory injunction was re- 
 fused to compel the company to de- 
 liver the logs to one of them as there 
 was a clear remedy at law by re- 
 plevin or trover. Wolf River Lum- 
 ber Co. v. Pelican Boom Co., 83 Wis. 
 426, 53 N. W. 678. 
 
 5. Moulton v. Knapp, 88 Cal. 446, 
 26 Pac. 210, aff'g 85 Cal. 385, 24 Pac. 
 803. 
 
 6. Lance v. McCoy, 34 W. Va. 416, 
 12 S. E. 728. 
 
 7. Blanc v. Blanc, 21 Misc. R. (N. 
 Y.), 268, 47 N. Y. Supp. 694. 
 
 57
 
 §27 
 
 Definition and Nature of Injunctions. 
 
 of law is the peculiarly appropriate tribunal, and an injunction 
 will not be granted in the absence of imminent irreparable injury, 
 even though one of the parties be a trustee claiming under a trust 
 deed. 8 And where executors claiming certain property resorted to 
 a court of chancery to restrain certain creditors from taking it, 
 on the ground that it was needed for the payment of the debts of 
 their testator, and it was not shown that it was in fact so needed, 
 but the reverse appeared, it was held that if the fact were other- 
 wise, still, in the absence of insolvency, the remedy would be at 
 law. 9 It is also a familiar rule both here and in England that an 
 action at law will not be enjoined when the defense to it can be 
 made as well at law as in equity. 10 And generally an equitable 
 action will not lie to prevent a non-user of a railroad franchise, as 
 there is' a sufficient remedy by mandamus or indictment. 11 Nor 
 
 8. Moore v. Steelman, 80 Va. 331; 
 Sheppards v. Turpin, 3 Gratt. 373. 
 
 9. Johnson v. Connecticut Bank, 
 21 Conn. 148. 
 
 10. United States. — Scottish Union 
 & N. I. Co. v. Bowland, 196 U. S. 611, 
 49 L. Ed. 619, 25 S. Ct. 345; Insur- 
 ance Co. v. Bailey, 13 Wall. 616, 20 
 L. Ed. 501; Northern Pac. R. Co. v. 
 Cannon, 49 Fed. oi7. 
 
 Georgia. — Waters v. Waters.. 124 
 Ga. 349, 52 S. E. 425. 
 
 Massachusetts. — Payson v. Lamson, 
 134 Mass. 593; Anthony v. Valentine, 
 130 Mass. 119; Jones v. Newhall, 115 
 Mass. 244, 252; McBride v. Little, 
 115 Mass. 308; Fuller v. Cadwell, 6 
 Allen, 503. 
 
 Minnesota. — Schumaker v. Board 
 of Commissioners (Minn. 1905), 105 
 N. W. 1125. 
 
 Oklahoma. — Thompson v. Tucker 
 (Okla. 1905), 83 Pac. 413. 
 
 Wisconsin. — Chicago & N. W. Ry. 
 Co. v. McKeigue, 126 Wis. 574, 105 
 N. W. 1030. 
 
 England. — Lee v. Lancashire, etc.. 
 Ry., L. R. 6 Ch. 527, 533; Ochsenbein 
 
 v. Papelier, L. R. 8 Ch. 695 ; Kemp v. 
 Tucker, L. R. 8 Ch. 369; Hoare v. 
 Bremridge, L. R. 8 Ch. 22 ; Johnston 
 v. Young, I. R. 10 Eq. 403; Life As- 
 sociation v. McBlain. I. R. 9 Eq. 176. 
 
 See § 577 herein. 
 
 11. Moore v. Brooklyn City R. Co., 
 108 N. Y. 98, 104, 15 N. E. 191, where 
 Andrews, J., said: "The threatened 
 violation of a mere naked legal right, 
 unaccompanied by special circum- 
 stances, is not a ground for injunc- 
 tion when, as in this case, legal reme- 
 dies are adequate to redress any re- 
 sulting injury. McHenry v. Jewett, 
 90 N. C. 58. If the defendant violates 
 its charter, or fails to perform the 
 conditions under which it exercises 
 its franchises, or if in the manage- 
 ment of its trains or business it un- 
 lawfully occupies or obstructs the 
 public highway, the remedy in the 
 one case is by a proceeding in behalf 
 of the people by the attorney general 
 to annul or forfeit its franchise, and 
 in the other by indictment or proceed- 
 ings under the statute." 
 
 Where remedy by mandamus 
 
 58
 
 Definition and Nature of Injunctions. § 27 
 
 will an injunction bo granted to prevent the transfer or diversion 
 of evidences of debt where the same result can be attained by the 
 process of garnishment. 12 Again, in an action to prevent a cloud 
 upon title or to quiet title a party is not entitled to a temporary 
 injunction unless he shows a threatened injury likely to accrue 
 pending the litigation which would not be averted by filing notice 
 of lis pendens. 13 And an original suit for an injunction will not 
 lie to try the title to land held by defendant under claim of right 
 where ejectment is the appropriate action, though a temporary 
 injunction pendente lite might be granted as auxiliary to the action 
 at law. 14 And where a contract stipulates for the doing of a cer- 
 tain act, or for the payment of a certain sura in lieu thereof, equity 
 will not compel performance by injunction but will leave the 
 obligee to his remedy of damages at law. Thus where a person 
 bound himself not to practice dentistry for a designated time 
 within the city of Hartford, but stipulated that he might do so 
 on the payment of $1,000, it was held that an injunction would not 
 lie to restrain him from a breach of the contract, but that the 
 remedy was an action at law to recover the sum named, and that 
 the fact that he was insolvent would not alter the respective rights 
 of the parties to such contract nor the remedy to be pursued. 15 
 
 injunction will not lie. See § 30 money." See, also, Hannahan v. 
 
 herein. Nichols,. 17 Ga. 77, 79. 
 
 12. Tumlin v. Vanhorn, 77 Ga. 13. Grant County v. Colonial & 
 
 315, 3 S. E. 264, where the court United States Mortgage Co., 3 S. D. 
 
 held firmly to the rule that a party 390, 53 N. W. 746. A preliminary 
 
 should not have an injunction where injunction will not be granted where 
 
 he has a plain remedy at law for the it is not essential to the complain- 
 
 enforcement of his contract rights: ant's rights, and when the filing of a 
 
 " In this case he could have instituted notice of lis pendens will answer, 
 
 his suit at law and reached the evi- Waddell v. Bruen (1846), 4 Edw. Ch. 
 
 dence of debt enjoined by process of 671. 
 
 garnishment; and when he obtained 14. Smith v. Jamieson, 91 Mb. 13, 
 
 his judgment might have levied the 3 S. W. 212; Janney v. Spedden, 38 
 
 execution issuing thereon upon the Mo. 395; Majors Heirs v. Rice. 57 
 
 land by first making the defendant a Mo. 385; More v. Perry, 61 Mo. 174; 
 
 party thereto, as provided by the Tamm v. Kellogg, 49 Mo. 119. 
 statute, or he might have proceeded 15. Dills v. Doebler, 62 Conn. 366, 
 
 in like manner to levy an attachment 26 A. 398, Andrews, C. J. : " The 
 
 upon the land for his purchase plaintiff having contracted to take 
 
 59
 
 §28 
 
 Definition and Nature of Injunctions. 
 
 § 28. Same subject; further illustrations. — A very good illus- 
 tration of the rule under consideration is afforded by a decision 
 in the court of last resort in the State of New York that the col- 
 lection of an assessment will not be enjoined on the ground that 
 the statute under which it was imposed is unconstitutional, nor 
 on the ground that the officer making the assessment failed to 
 comply with the statute providing therefor, there being an 
 adequate remedy at law in both cases; for in the first case the 
 statute being unconstitutional the tax warrant to collect the assess- 
 ment would be void and the sheriff acting thereunder would be a 
 trespasser, and the owner of property levied on thereunder could 
 by replevin or action of trespass regain his property or recover 
 its value, and the action would bring up the question of the 
 statute's validity; while in the second case the property owner 
 would have a sufficient remedy by certiorari. 16 Again, a gas corn- 
 
 damages must seek his remedy in a 
 court of law. The brief of the plain- 
 tiff's counsel suggests that the de- 
 fendant is insolvent and that the 
 plaintiff could not collect the dam- 
 ages if he should obtain a judgment 
 therefor. If it were so that fact could 
 not give to a court of equity the right 
 to issue an injunction. It is the con- 
 tract itself which gives to or takes 
 away from the court its jurisdiction, 
 not the wealth or poverty of the de- 
 fendant." Citing Nessle v. Reese, 19 
 Abb. Pr. 240, 29 How. Pr. 382; Shiell 
 v. McNitt, 9 Page, 101; Skinner v. 
 Dayton, 2 Johns. Ch. 526, 535; Pom- 
 eroy, Eq. Jur., sec. 447. 
 
 16. United Lines Tel. Co. v. Grant, 
 137 N. Y. 7, 32 N. E. 1005, where the 
 court said: "Here the process is- 
 sued to the sheriff was void on its 
 face, if the authority which it recited 
 was merely an unconstitutional law; 
 and where the process is so void it 
 gives no protection to the officer. Van 
 Rensselaer v. Witbeck. 7 N. Y. 517. 
 Beyond that if the plaintiff's property 
 
 should be sold on the warrant the 
 purchaser would get no title, unless 
 he could show constitutional author- 
 ity for the issue of the warrant, and 
 the plaintiff by replevin or action of 
 trespass could retain his property or 
 recover its value and the action 
 would bring up the precise question 
 of the constitutionality of the acts as- 
 sailed. Lennon v. Mayor, 55 N. Y. 
 361. There was thus a complete and 
 adequate remedy at law. Nothing in 
 the complaint or in the facts shows 
 that the mere collection of the war- 
 rant would be an irreparable injury 
 to the plaintiff's business. To hold 
 that would be to expose every execu- 
 tion to an injunction. Nor is it of 
 any consequence if ihe State could 
 not be sued for a restoration of the 
 money collected. The cases in the 
 Federal Circuit Court of which Wool- 
 sey v. Dodge, 6 McLean. 142, ia an 
 example, in which injunctions were 
 issued to restrain the collection of a 
 tax imposed by an unconstitutional 
 law, went distinctly upon the ground 
 
 CO
 
 Definition and Nature of Injunctions. 
 
 §28 
 
 pany cannot enjoin a breach of contract by a town in the use of 
 open lights as it can recover for an excessive use of gas by an 
 action at law. 17 And where a mining lessee is in arrears as to 
 royalties and so the lease to him is annulled, the lessor cannot 
 enjoin him from further mining, as he has his legal remedy by 
 assumpsit for the arrears or in ejectment for the land. 18 
 
 that the levy would be an annually 
 accruing grievance until the State 
 statute should be repealed, and in- 
 volve a multitude of suits at law. 
 Nothing of the kind exists here. The 
 assessment is not a tax, nor is it an- 
 nual, nor is there any collision be- 
 tween State and Federal adjudication 
 to complicate the situation. 
 As respects the second ground of the 
 action which concedes the constitu- 
 tional validity of the statutes, but 
 urges that the officer disobeyed, and 
 varied from their terms, and did not 
 lawfully and regularly make the as- 
 sessment, it is sufficient to say that 
 the plaintiff had an ample and suffi- 
 cient remedy by certiorari. Code, sec. 
 2140; Mayor v. Davenport, 92 N. Y. 
 604; Canal Co. v. Atkins, 121 N. Y. 
 246, 24 N. E. 319. It is no answer to 
 urge that the allowance of the writ 
 is discretionary. That discretion is 
 not arbitrary, and it must be assumed 
 that the writ will always issue where 
 there is a proper subject for review. 
 There was no sufficient ground for a 
 suit in equity." In Robens v. Bar- 
 rett, 49 N. Y. St. 172, the dispute 
 was over fish enclosed and propagated 
 in a private pond. The court after 
 citing authorities to show that the 
 fish were owned by him who planted 
 them and that interference with the 
 owner's right was a trespass for 
 which an action of trespass would lie, 
 said: "That being so an injunction 
 would not lie to restrain its removal, 
 
 even if the title was in dispute, or 
 concededly in the plaintiff. In that 
 case trespass, or an action at law to 
 discover the value of the property 
 taken, or replevin, an action to re- 
 cover the possession of personal prop- 
 erty wrongfully taken or detained 
 would be the proper remedy. The 
 power of a court of equity could not 
 be invoked in such a case for the rea- 
 son that the party has an adequate 
 remedy at law." 
 
 17. Saltsburg Gas Co. v. Salts- 
 burg, 138 Pa. St. 250, 20 Atl. 844; 
 Grubb's Appeal, 90 Pa. St. 228, 235. 
 
 18. Hoch v. Bass, 133 Pa. St. 328, 
 19 Atl. 360. Where A claimed to be 
 the owner in possession of land, 
 B entered on the unimproved 
 part thereof, under claim of 
 title, cut timber, sunk shafts, and 
 began the mining of coal. Held, that 
 in the absence of circumstances of 
 imminent peril requiring a speedier 
 remedy than any at law A was not 
 entitled to an injunction. The court 
 said : " If the defendants had good 
 title they were not trespassers. It 
 they have no valid title the law gives 
 a full and adequate remedy for their 
 trespass unless the injury is irrepar- 
 able. For cutting timber trees and 
 converting them to their own use 
 trespassers are liable to pay treble 
 the value thereof. A plaintiff in 
 ejectment may have a writ of estrepe- 
 ment to prevent the mining of coal, 
 and the proceedings respecting such 
 
 01
 
 §29 
 
 Definition and Natuee of Injunctions. 
 
 § 29. Same subject ; certiorari and appeal. — Generally an 
 injunction will not lie in favor of one who has a sufficient remedy 
 by certiorari. 19 Thus an injunction will not lie to restrain the 
 opening of a street at a suit of the owner of the land required for 
 the street, since he has a plain, adequate, and speedy remedy at 
 law by certiorari to test the power of the council to open the 
 street. 20 And an injunction against a judgment will not be 
 granted unless it is shown that there is not a sufficient remedy by 
 appeal ; 21 though such remedy be given by special statute. 22 But 
 
 writ are regulated by statute. In 
 this case by bringing one suit in eject- 
 ment the plaintiff will be entitled to 
 as effective a remedy to stay waste 
 as an injunction in equity. If con- 
 fined to the law courts, the plaintiff 
 has no occasion for a multitude of 
 actions to protect its rights." Lein- 
 inger's Appeal, 106 Pa. St. 398. 
 
 19. Grandchamp v. McCormick 
 (Mich., 1907), 114 IS. W. 80; United 
 Lines Tel. Co. v. Grant, 137 N. Y. 7, 
 32 N. E. 1005; Parker v. Fogle (S. C, 
 1907 ) , 59 S. E. 707. See also Lasher 
 v. Annunziata, 119 111. App. 653. In 
 Texas when a justice of the peace 
 grants a new trial without notice to 
 the adverse party of the application 
 therefor and the adverse party does 
 not appear at the second trial, he 
 may enjoin the collection of the judg- 
 ment rendered at the second trial as 
 being void for want of jurisdiction, 
 or he may have a certiorari to bring 
 the case into the Disrict Court to 
 have the judgment set aside and the 
 cause tried again. Aycock v. Will- 
 iams, 18 Tex. 392. See, also, Gulf, 
 etc., R. Co. v. Rawlins, 80 Tex. 579, 
 16 S. W. 430, where it was held an 
 injunction would lie because no ap- 
 peal or certiorari could be had to set 
 aside a void justice's judgment for 
 less than $20. 
 
 20. Rockwell v. Bowers, 88 Iowa, 
 88, 55 N. VV. 1. 
 
 21. Arkansas. — Shaul v. Dupre, 48 
 Ark. 331. 
 
 Illinois. — Palmer v. Gardiner, 77 
 111. 143. 
 
 Indiana. — Board of Commissioners 
 v. Wolff (Ind. 1905), 76 N. E. 247; 
 De Hoven v. Covalt, 83 Ind. 344; 
 Schwab v. Madison City, 49 Ind. 329. 
 
 Iowa. — Kinney v. Howard (Iowa, 
 1907), 110 N. W. 282. 
 
 Louisiana. — Savoie v. Thibodaux, 
 29 La. Ann. 51; Naughton v. Dink- 
 grave, 25 La. Ann. 538. 
 
 Minnesota. — Schumaker v. Board 
 of Commissioners (Minn. 1906), 105 
 N. W. 1125. 
 
 Texas. — Manning v. Hunt, 36 Tex. 
 118. 
 
 See, also, § 555 herein. 
 
 A party who lias lost the right 
 to appeal through negligence or by 
 reason of his defective proceedings 
 thereby forfeits his right to an in- 
 junction. Palmer v. Gardiner, 77 111. 
 143; Long v. Smith, 39 Tex. 160. 
 
 In Gulf, etc., R. Co. v. Bacon (Tex. 
 1893), 21 S. W. 783, it is held that 
 the fact that each of two partners 
 brings a separate suit in his individ- 
 ual name against a railroad company 
 for killing live stock on its track, so 
 as to deprive the railroad company of 
 
 62
 
 Definition and Nature of Injunctions. 
 
 30 
 
 a defendant may have his remedy by injunction instead of by 
 appeal where he was not served with process in the action in which 
 the judgment was obtained against him. 23 And when the com- 
 missioners of a county threaten unlawfully to remove a county- 
 seat, and it does not appear that they have entered any order there- 
 for from which an appeal could have been taken, the removal will 
 be enjoined. 24 
 
 § 30. Injunction not granted where mandamus is appropriate. 
 
 — It is a general rule that where mandamus is the proper remedy 
 an injunction will not be granted. 25 Where a person duly qualified 
 is prevented from taking possession of an office by a former incum- 
 bent, the title to the office will not be determined by means of an 
 injunction, but by appropriate proceedings under writ of man- 
 damus on the law side of the court. 26 And to enforce the mainte- 
 
 the right of appeal by praying for 
 judgment in each case below the 
 jurisdictional amount of the County 
 Court will not authorize an injunc- 
 tion against the prosecution of the 
 actions, since tne company has the 
 right to consolidate them, and then 
 appeal to the County Court if the 
 judgment is adverse. 
 
 A taxpayer may apply for 
 an injunction against the payment 
 of a claim against a county al- 
 lowed by the board of supervisors; 
 such allowance is not a judgment the 
 validity of wnich can be questioned 
 only by appeal or certiorari. Hos- 
 pers v. Wyatt, 63 Iowa, 264, 19 N. 
 W. 204, where the court said : " It 
 will be conceded, if the board acted 
 judicially, that injunction is not the 
 proper remedy. That the board of 
 supervisors in relation to many mat- 
 ters act judicially will also be con- 
 ceded; but that they do so in the 
 allowance of claims against the 
 county, cannot we think be the rule. 
 If this is so, then the determination 
 
 of the board, while it may not have 
 the force and effect of a judgment in 
 so far as relates to its enforcement, 
 must of necessity be final and con- 
 clusive as an adjudication, so far as 
 the amount allowed is concerned, if 
 the same is not annulled or set aside 
 in some direct proceeding, such aa 
 an appeal or certiorari." 
 
 22. People v. Wasson, 64 N. Y. 
 167. 
 
 23. Robinson v. Reid, 50 Ala. 69. 
 
 24. Doan v. Board of Com'rs of 
 Logan County, 2 Idaho, 7bl, 26 Pac. 
 167. 
 
 25. Mason v. Byrley, 26 Ky. Law 
 Rep. 487, 84 S. W. 767; Harley v. 
 Lindemann, 129 Wis. 514, 109 N. W. 
 570. See, also, cases cited in this 
 section. 
 
 26. Commissioners v. School 
 Com'rs, 77 Md. 283, 26 Atl. 115, 
 where the settled rule is thus ex- 
 pressed: "When a person has been 
 duly appointed to a public office, and 
 has taken the prescribed oath, and 
 done such other things as are made 
 
 63
 
 §31 
 
 Definition and Nature of Injunctions. 
 
 nance of a railroad station at a certain place mandamus is the 
 proper remedy and not an injunction to prevent its discontinu- 
 ance. 27 Nor will a mandatory injunction issue to compel a railroad 
 company to construct a bridge over a public road, the writ of 
 mandamus in the common law courts being an adequate and 
 proper remedy. 28 But it has been decided that relief by injunction 
 will be granted to a hotel owner and his tenants where a water com- 
 pany refuses to furnish water to the hotel, relief by mandamus 
 not being effectual as to the tenants. 29 Both a specific legal right 
 and the absence of an effectual legal remedy must concur to 
 authorize the issuing of a mandamus. 30 
 
 § 31. Where legal remedy inadequate. — In applying the rule 
 that an injunction will not be granted where there is an adequate 
 remedy at law but that the remedy at law must be as practical and 
 efficient as that in equity it is decided that a party may be granted 
 
 prerequisites by law he has a right 
 to enter upon the discharge of nis 
 duties. If he is prevented by a for- 
 mer incumbent from obtaining pos- 
 session of the office, the law affords 
 a perfectly adequate and complete 
 remedy. In this State the usual and 
 appropriate proceedings is by writ of 
 mandamus, of which a great many 
 instances are found in our reports. 
 It is a legal remedy; tftat is to say, 
 it is administered on the law side of 
 the court as contradistinguished 
 from its equitable jurisdiction. Hence 
 it is held, as there is a complete and 
 adequate remedy at law, that a court 
 of equity is debarred from determin- 
 ing the title to an office disputed be- 
 tween conflicting claimants." 
 
 27. Jacquelin v. Erie R. Co. (N. 
 J. Ch. 1905), 61 Atl. 18. 
 
 28. New York & G. L. R. Co. v. 
 Montclair, 47 N. J. Eq. 591, 21 Atl. 
 493, where the court said: "The 
 power of the common law courts to 
 
 compel the performance of duties ot 
 the kind under consideration which 
 were imposed upon railroad com- 
 panies were and are complete. Tho 
 appropriate writ for the accomplish- 
 ment of that purpose is the writ of 
 mandamus. No case can hold by the 
 application of correct principle that 
 a court of equity will issue a manda- 
 tory injunction in any instance whera 
 the duty imposed is of that official or 
 corporate quality which confers upon 
 a court of common law the com- 
 petency to adequately compel its ex- 
 ecution." See, also, State v. Pater- 
 son, etc., R. Co., 43 N. J. L. 505. 
 
 29. McDowell v. Avon-By The Sea 
 Land & I. Co. (N. J. Ch. 1906), 63 
 Atl. 13. 
 
 30. State v. Paterson, etc., R. Co., 
 43 N. J. L. 505; State v. Holliday, 3 
 Halst. 205; State v. Newark, 6 
 Vroom, 396; State v. Union Town- 
 ship, 8 Vroom, 84; Queen v. Hull, 
 etc., R. Co., 6 Q. B. 70. 
 
 C4
 
 Definition and Nature of Injunctions. 
 
 §31 
 
 an injunction restraining the doing of certain acts notwithstanding 
 he has a remedy at law, it appearing that the latter remedy is 
 clearly inadequate. 31 So an injunction will be granted to an 
 innocent purchaser of stock and good will of a business to prevent 
 the sale thereof by the sheriff under attachments, where the dam- 
 ages recoverable in trespass or replevin would be only for the 
 value of the stock and not for the destruction of plaintiff's business, 
 and would therefore be an inadequate remedy. 33 And where a 
 
 31. United States. — Jewett Bros, 
 v. Chicago M., & St. P. R. Co., 156 
 Fed. 160; Hoist v. Savannah Elec. 
 Co., 13 Fed. 931. 
 
 Connecticut. — New York, N. H. & 
 H. R. Co. v. Scovill, 71 Conn. 136, 
 41 Atl. 246, 42 L. R. A. 157. 
 
 Nebraska. — Lowe v. Prospect Hill 
 Cemetery Ass'n, 58 Neb. 94, 78 N. W. 
 488, 46 L. R. A. 237. 
 
 New York. — Bolivar v. Pittsburg, 
 S. & N. R. Co., 179 N. Y. 523, 71 N. 
 E. 1141. 
 
 Pennsylvania. — Maubeck v. Jones, 
 21 Pa. Co. Ct. Rep. 300. 
 
 32. Where averment a mere 
 conclusion. — An averment that a 
 plaintiff " has no speedy and ade- 
 quate remedy at law " is a mere con- 
 clusion of law which is held to be 
 valueless in the absence of an aver- 
 ment of facts supporting it. Streator 
 v. Linscott (Cal. S. C. 1908), 95 Pac. 
 42; Ehrich v. Grant, 111 App. Div. 
 (N. Y.) 196, 97 N. Y. Supp. 600. 
 
 33. North v. Peters, 138 U. S. 271, 
 11 S. Ct. 346, 34 L. Ed. 936, where 
 Lamar, J., said : "The main ground re- 
 lied on by the appellant is, that the re- 
 lief sought should be refused, because 
 the appellee had a plain and complete 
 remedy at law, to wit, either the 
 action of trespass or replevin. The 
 answer to this is, that the measure 
 of damages in an action of trespass 
 
 could not have exceeded the value of 
 the property seized, with interest 
 thereon from the date of the seizure; 
 and that the only remedy in an action 
 of replevin would have been limited 
 to a recovery of the property, and 
 damages for its detention with costs. 
 It does not need argument to show 
 that neither of these actions would 
 afford as complete, prompt and effi- 
 cient a remedy for the destruction of 
 the business which, with the goods 
 levied upon, constituted the appellee's 
 entire estate and pecuniary resources, 
 as would be furnished by a court of 
 equity in preventing such an injury." 
 Compare the similar case of Watson 
 v. Sutherland, 5 Wall. (U. S.) 74, 
 78, 79, 18 L. Ed. 580. See, 
 also, Ambrose v. Buffalo, 20 N. 
 Y. Supp. 129. In Corning v. 
 Troy, etc., Factory, 50 N. Y. 191 
 206, the court said: "Upon es- 
 tablished principles this is a proper 
 case of equity jurisdiction. First, 
 upon the ground that the remedy at 
 law is inadequate. The plaintiffs arb 
 entitled to the flow of the stream in 
 its legal channel. Legal remedies 
 cannot restore it to them and secure 
 them in the enjoyment of it. Hence 
 the duty of a court of equity to in- 
 terpose for the accomplishment of 
 that result." 
 
 65
 
 §32 
 
 Definition and Natuke of Injunctions. 
 
 lessee is in possession of leased premises and entitled to the natural 
 gas underlying them, he can enjoin the lessor from drilling on the 
 leasehold as the damage likely to result from the threatened waste 
 would be entirely incapable of measurement at law, if not irrepar- 
 able. 34 The illegal sale of a church pew under an attachment will 
 also be prevented by injunction on the ground that it would outrage 
 the owner's religious feelings and would be without adequate 
 remedy at law. 35 And a taxpayer may maintain injunction to 
 prevent the issue of corporate bonds as there is no other remedy of 
 equal power and efficiency; 36 and he may likewise be granted an 
 injunction restraining the unlawful expenditure of the public 
 funds by municipal officers. 37 And the enforcement of a statute 
 which is unconstitutional may be enjoined by a court of equity 
 where the complainant has no other adequate remedy at law. 38 
 Again, the granting of an injunction restraining the unlawful 
 dealing in special tickets which are limited to the original pur- 
 chaser will not be prevented by the fact that the carriers may 
 bring numerous suits to restrain the misuse of such tickets by 
 brokers and purchasers. 39 
 
 § 32. Adequate remedy in Federal courts. — The Eevised 
 
 34. Westmoreland & Cambria Nat. 
 Gas Co. v. De Witt, 130 Pa. St. 235, 
 18 Atl. 724. See Chartier's Block 
 Coal Co. v. Mellon, 152 Pa. St. 286, 
 25 Atl. 597; Mansfield Coal & C. Co. 
 v. Mellon, 152 Pa. St. 286, 25 Atl. 601, 
 where it was held the lessee or 
 grantee would be protected as far as 
 possible by the decree with due re- 
 gard to the rights of third parties 
 and then left to his remedy at law. 
 
 35. Deutsch v. Stone (Ohio Com. 
 Pleas), 27 Wkly Law Bui. 20. In 
 Lathrop v. Eisner, 93 Mich. 599, 53 
 N. W. 791, the court said: "We 
 think equity may well take jurisdic- 
 tion of this case. As was said in 
 Nye v. Clark, 55 Mich. 599, 22 N. 
 W. 57: No action of damages could 
 
 give adequate redress to a party who 
 is hemmed in so as to have no peace- 
 able egress from his own farm. See, 
 also, Wilmarth v. Woodcock, 66 Mich. 
 331, 33 N. W. 400; Morgan v. Meuth, 
 60 Mich. 238, 27 N. W. 509; Cook v. 
 Mayor, L. R. 6 Eq. 177; Welsh v. 
 Taylor, 2 N. Y. Supp. 815." 
 
 36. Vvinamac Town v. Huddleston, 
 132 Ind. 217, 31 N. E. 561; Denny v. 
 Denny, 113 Ind. 22, 14 N. E. 593; 
 Bishop v. Moorman, 98 Ind. 1 ; Wat- 
 son v. Sutherland, 5 Wall. (U. S.) 
 74, 18 L. Ed. 580. 
 
 37. Cascaden v. Waterloo, 106 
 Iowa, 673, 77 N. W. 333. 
 
 38. Jewett Bros. v. Small (S. D. 
 1905), 105 N. W. 738. 
 
 39. Nashville, C. & St. L. R. Co. v. 
 McConnell, 82 Fed. 65. 
 
 60
 
 Definition and Nature of Injunctions. 
 
 §32 
 
 Statutes of the United States provide that " suits in equity shall 
 not be sustained in either of the courts of the United States in any 
 case where a plain, adequate and complete remedy may be had at 
 law ;" 40 and the object of this provision was to preserve to the 
 defendant his constitutional right to a trial by jury, 41 and was 
 declaratory, serving merely to emphasize the rule already exist- 
 ing. 42 Thus, in a Federal court a bill in equity will not lie if it 
 is in substance and effect an ejectment bill, and if the relief it 
 seeks can be obtained at law by an action in ejectment. 43 The 
 remedy at law is not inadequate merely because it fails to produce 
 the money but because in its nature it is not fitted or adapted to 
 the end in view. 44 In the Federal courts an execution will be 
 enjoined in the absence of fraud where otherwise commercial ruin 
 would result to an innocent defendant in the closing of his store 
 and the destruction of his business. 45 Where the remedy at law is 
 not as practicable and efficient to the ends of justice and its prompt 
 administration, both in respect to the final relief and the mode of 
 obtaining it, the aid of equity and injunctive relief may hf 
 
 40. U. S. R. S. § 723. 
 
 41. Hipp v. Babin, 19 How. 271, 
 15 L. Ed. 633. 
 
 42. Lewis v. Cocks, 23 Wall, 466, 
 23 L. Ed. 70; New York Guaranty & 
 Indemnity Co. v. Memphis Water Co., 
 107 U. S. 214, 2 s. Ct. 279, 27 L. 
 Ed. 484. 
 
 43. Killian v. Ebbinghaus, 110 U. 
 S. 568., 573, 4 S. Ct. 232, 28 L. Ed. 
 246, where the court said: "This 
 case is similar to the leading case 
 of Hipp v. Babin, 19 How. 271, 15 
 L. Ed. 633, which was dismissed by 
 the Circuit Court on the ground tliere 
 was an adequate remedy at law. Upon 
 appeal to this court the decree was 
 affirmed, this court declaring as a 
 result of the argument, that whenever 
 a court of law is competent to take 
 cognizance of a right and has power 
 to proceed to a judgment which af- 
 fords a plain, adequate and complete 
 
 remedy, without the aid of a court 
 of equity, the plaintiff must proceed 
 at law, because the defendant has a 
 constitutional right to a trial by 
 jury." See, also, Parker v. Winne- 
 piseogee Lake, etc., Co., 2 Black, 545, 
 17 L. Ed. 333; Grand Chute v. Wine- 
 gar, 15 Wall. 373, 21 L. Ed. 170; 
 Lewis v. Cocks, 23 Wall. 466, 23 L. 
 Ed. 70; Insurance Co. v. Bailey, 13 
 Wall. 616, 621, ?0 L. Ed. 501; Root 
 v. Railroad Co., 105 U. S. 189, 212, 
 26 L. Ed. 975. 
 
 44. Thus, in Thompson v. Allen 
 County, 115 U. S. 550, 6 S. Ct. 140, 
 29 L. Ed. 472, the interference of 
 chancery was refused because though 
 the legal remedy was inadequate it 
 was quite as adaquate as any remedy 
 chancery could give. 
 
 45. Watson v. Sutherland, 5 Wall. 
 74, 18 L. Ed. 580. 
 
 67
 
 § 33 Definition and Nature of Injunctions. 
 
 invoked. 46 While it is true that the Federal courts will enforce 
 any new rights created by the customary or statute law of a State, 
 at law or in equity, according as they fall within the remedies 
 authorized by either branch of their jurisdiction, 47 yet such new 
 rights will be enforced in the Federal courts at law or in equity 
 as the nature of those rights may require, and a State cannot bind 
 the Federal courts by limiting the remedy so as to impair the 
 separation established by the Constitution of the United States 
 between actions for legal demands and suits for equitable relief. 48 
 All actions which seek to recover specific property, real or personal, 
 with or without damages for its detention, or a money judgment 
 for breach of a simple contract, or as damages for injury to person 
 or property, are legal actions and can be brought in the Federal 
 courts only on their law side ; and such demands do not lose their 
 character as cognizable only on the law side of Federal courts, 
 because in some State courts by virtue of State statutes equitable 
 relief in aid of the demand at law may be sought in the same 
 action, for such blending of remedies is not allowed in the Federal 
 courts. 49 
 
 § 33. Enjoining trespass and nuisance though legal remedy 
 exists. — Under the Pennsylvania Statutes of 1836 and 1857 it 
 has been decided that injunction is the appropriate remedy for 
 such frequently recurring trespasses and nuisances as threaten to 
 become permanent, since the remedy at law may be inadequate 
 because of the difficulty of computing the damages and because 
 it may happen that the expense of a recovery will exceed the 
 amount recoverable for the successive trespasses taken separately. 50 
 
 46. Kilbonrn v. Sunderland, 130 110, 11 S. Ct. 712, 35 L. Ed. 358; 
 U. S. 514, 9 S. Ct. 594. 32 L. Ed. Thompson v. Railroad Companies, 6 
 1005; Lewis v. Cocks, 23 Wall. 470. Wall. 134, 137, 18 L. Ed. 765; Ben- 
 23 L. Ed. 70. nett v. Butterworth, 11 How. 669. 
 
 47. Gaines v. Fuentes. 92 U. S. 10. 674 - 13 L - Ed - 85 9? Fen « v - Holme. 
 23 L. Ed. 524; Ellis v. Davis, 109 U. 21 How - 481 > 484 > 16 L - Ed - 198- > 
 S. 485, 3 S. Ct. 327, 27 L. Ed. 1006. Robinson v. Campbell, 3 Wheat. 212, 
 
 4 L. Ed. 372. 
 
 48. Scott v. Neely, 140 U. S. 106, 5Q By the thirteenth section of 
 11 S. Ct. 712, 35 L. Ed. 358. the Mt of JuQe ^ 1836) made gftn 
 
 49. Scott v. Neely. 140 U. S. 106. era! as to the courts of common 
 
 68
 
 Definition and Nature of Injunctions 
 
 §34 
 
 In Vermont, too, repeated injurious acts rnay be enjoined though 
 for each act, if it stood alone, the legal remedy might be adequate. 51 
 
 § 34. Where a party has a remedy by his own act. — Where 
 a party has a remedy by his own act involving the use of force, it 
 does not constitute that adequate remedy at law which excludes 
 equitable relief. " When the choice is between redress or pre- 
 vention of injury by force and by peaceful process, the law is well 
 pleased if the individual will consent to waive his right to the use 
 of force and await its action. Therefore, as between force and 
 the extraordinary writ of injunction, the rule will permit the 
 latter. 62 
 
 pleas throughout Pennsylvania by the 
 Act of February 14, 1857, it was en- 
 acted that the Supreme Court when 
 sitting in bank in Philadelphia, and 
 the Court of Common Pleas of the 
 said city and county, shall have the 
 power and jurisdiction of courts of 
 chancery so far as relates inter alia 
 to the prevention of acts contrary to 
 law and prejudicial to the interests 
 of the community or the rights of in- 
 dividuals. By force of those statutes 
 it was held in Walters v. McElroy, 
 151 Pa. St. 549, 25 Atl. 125, that an 
 injunction would issue from the Su- 
 preme Court to prevent the defend- 
 ant from making a drift through 
 plaintiff's land into the coal in ad- 
 joining lands, and carrying coal over 
 his land and depositing debris and 
 drainage water on his land, such acts 
 being continuous. The court said: 
 ' Under this section it has been re- 
 peatedly and uniformly held that in- 
 junction is the appropriate remedy 
 for the prevention of trespasses and 
 nuisances which by reason of the per- 
 sistency with which they are repeated 
 threaten to become of a permanent 
 nature. Commonwealth v. Pitts- 
 burgh, etc., R. Co., 24 Pa. St. 159; 
 Scheetz's Appeal, 35 Pa. St. 88; 
 
 Stewart's Appeal, 56 Pa. St. 413; 
 Masson's Appeal, 70 Pa. St. 26; Alli- 
 son's Appeal, 77 Pa. St. 221; Bit- 
 ting's Appeal, 105 Pa. St. 517. It is 
 the appropriate remedy for such torts 
 because they are within the letter 
 and spirit of the statute, and it is no 
 objection that the injured party may 
 have a remedy at law. In such cases 
 the legal remedy may be and usually 
 is wholly inadequate. The damages 
 are frequently difficult of computa- 
 tion, and where they may be readily 
 assessed it will often occur that the 
 expense of a recovery will exceed the 
 v mount recoverable for any one of the 
 successive trespasses. It was there- 
 fore a wise provision that enabled the 
 courts to put an end by a single de- 
 cree to such controversies as are pre- 
 sented in this record and the juris- 
 diction ought not to be abdicated. 
 From this it is not to be inferred that 
 injunction is the appropriate remedy 
 for a single trespass, or for any num- 
 ber of trespasses in the absence of a 
 threat that they will be repeated." 
 
 51 Griffith v. Hilliard, 64 Vt. 643, 
 25 A. 427. 
 
 52 Borough of Stamford v. Stam- 
 ford Horse R. R. Co., 56 Conn. 381, 
 15 Atl. 749, 1 L. R. A. 375.
 
 §35 
 
 Definition and Natuee of Injunctions. 
 
 § 35. Irreparable injury threatened ; injunction to prevent. — 
 
 It is a general rule that, where a complainant shows that the injury 
 threatened will be an irreparable one, a court of equity will grant 
 relief by an injunction. 53 So in a recent case in the United States 
 Supreme Court it is said : " It is one of the most valuable features 
 of equity jurisdiction, to anticipate and prevent a threatened 
 injury, where the damages would be insufficient or irreparable. 
 The exercise of such jurisdiction is for the benefit of both parties ; 
 in disclosing to the defendant that he is proceeding without war- 
 rant of law, and in protecting the complainant from injuries 
 which, if inflicted, would be wholly destructive of his rights." 54 
 So where an actor or singer is of such ability and repute that he 
 cannot be replaced by another of equal repute he will be enjoined 
 from breaking his contract for the season and performing at a 
 rival theater on the ground of irreparable injury. 55 And an em- 
 
 53 United States. — Brown v. Pa- 
 cific Mail S. S. Co., Fed. Cas. No. 
 2025. 
 
 Alabama. — Rouse v. Martin, 75 
 Ala. 510, 51 Am. Rep. 463. 
 
 Alaska. — Heine v. Roth, 2 Alaska, 
 416. 
 
 Connecticut. — Whittlesey v. Hart- 
 ford P. & F. R. Co., 23 Conn. 421. 
 
 Georgia. — McConnell v. Jones 
 Naval Stores Co., 125 Ga. 376, 54 
 S. E. 117. 
 
 Missouri. — State Sav. Bank v. 
 Kercheval, 65 Mo. 682, 27 Am. Rep. 
 310. 
 
 Nebraska. — Cole v. Manners (Neb. 
 1906), 107 N. W. 777. 
 
 New Jersey. — Herlin v. West, 4 
 N. J. Eq. 449. 
 
 New York. — Campbell v. Seaman, 
 63 N. Y. 568, 20 Am. Rep. 567. 
 
 Virginia. — Diffendal v. Virginia 
 M. R. Co., 86 Va. 459, 10 S. E. 536. 
 
 Wisconsin. — De Pauw v. Oxley, 122 
 Wis. 656, 100 N. W. 1028; Wilson v. 
 City of Mineral Point, 39 Wis. 160. 
 
 54. Vicksburg Waterworks Co. v. 
 
 Vicksburg, 185 U. S. 65, 82, 22 Sup. 
 Ct. 585, 46 L. Ed. 808. Per Mr. Jus. 
 tice Shiras. 
 
 55. Duff v. Russell, 14 N. Y. Supp. 
 134; aff'd 16 N. Y. Supp. 958; aff'd 
 133 N. Y. 678, 31 N. E. 622. See, also, 
 Daly v.Smith, 38 N. Y. Super. 158; 
 Lumley v. Wagner, 1 DeG. M. & G. 
 604; Montague v. Flockton, L. R. 16 
 Eq. 189. The true ground of injunctive 
 relief is thus expressed in Beach, 
 Modern Eq. Jur. § 605 : " Where a 
 contract stipulates for special, unique 
 or extraordinary services or acts, or 
 where the services to be rendered are 
 purely intellectual, or are peculiar 
 and individual in their character, the 
 court will grant an injunction in aid 
 of a specific performance; . . . the 
 reason being that the services are of 
 such a nature as to preclude the 
 possibility of giving the injured party 
 adequate compensation in damages. 
 Cort v. Lassard, 18 Or. 221; 6 L. R. 
 A. 653; Rogers Mfg. Co. v. Rogers. 
 58 Conn. 356; 7 L. R. A. 779; Daly 
 v. Smith, 49 How. Pr. 150. 
 
 70
 
 Definition and Natube of Injunctions. 
 
 §36 
 
 ployee may be enjoined from divulging or using for his own 
 benefit trade secrets relating to his employer's business, which the 
 opportunities of his service have enabled him to obtain. 56 And an 
 injunction has been held proper to prevent the destruction of trees 
 which were ornamental to plaintiff's grounds and which sheltered 
 his dwelling house from storms and shaded it from the sun. 57 
 Again, a court of equity in the exercise of its discretion may grant 
 an injunction to prevent a breach or an injury for which there can 
 be no other redress on account of the defendant's insolvency. 58 
 
 §36. Irreparable injury; what is. — While irreparable injury 
 cannot be precisely defined by a general definition, it is obvious 
 that there are many injuries to person and property for which 
 there can be no adequate pecuniary compensation. 59 An irrepar- 
 able injury may arise either from the nature of the injury itself 
 or from the want of responsibility in the person committing it. 80 
 
 56. Merryweather v. Moore 
 (1892), 2 Ch. 518. 
 
 57. Shipley v. Ritter, 7 Md. 408, 
 where the court said that though an 
 injunction will not be granted to re- 
 strain a trespasser merely as such, 
 yet equity will interfere where the 
 injury is irreparable, or where full 
 and adequate relief cannot be granted 
 at law, or where the trespass goes to 
 the destruction of the property as it 
 had been held and enjoyed, or where 
 it is necessary to prevent a multiplic- 
 ity of suits. 
 
 58. Saltus v. Belford Company, 
 133 ^. Y. 499, 504, 31 N. E. 518. 
 
 50. As it was said in Crescent 
 City, etc., Co. v. Police Jury, 32 La. 
 Ann. 1192, where, however, it ap- 
 peared from plaintiff's own showing 
 that he would not be irreparably in- 
 jured, because he estimated his dam- 
 age at $1,500 and upwards. " There 
 are many injuries which, in the very 
 nature of things, cannot be repaired 
 by any money consideration. Such, 
 
 for instance, as result from acts 
 which outrage the feelingg and wound 
 the sensibilities, or deprive us of ob- 
 jects of affection and of things, per- 
 haps 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 is 
 required 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. 
 In all this class of cases the injunc- 
 tion should be maintained, because 
 the injury from its dissolution would 
 be irreparable . . . We have exam- 
 ined the pleadings carefully and we 
 cannot discover that the plaintiff 
 could possibly suffer such loss by 
 the threatened act as money could 
 not replace." 
 
 60. Kerlin v. West, 4 N. J. Eq. 
 449, 453. 
 
 71
 
 §37 
 
 Definition ami Nati re of Injunctions. 
 
 And an injury is irreparable when it is of such a nature that the 
 injured party cannot be adequately compensated therefor in dam- 
 ages, or when the damages which may result therefrom cannot 
 be measured by any certain pecuniary standard. 60 * The term 
 " irreparable injury " does not mean that the injury might be one 
 which can not be repaired by any physical possibility but is con- 
 strued as meaning that the injury must be at least a material, if 
 not a grievous one, which is not adequately reparable in damages. 61 
 
 § 37. Rules illustrated generally. — Where the injury com- 
 plained of is such as to destroy plaintiff's property, or render it 
 entirely worthless, for his purposes, it may properly be regarded 
 as irreparable. 62 And where the substance of plaintiff's estate or 
 inheritance is taken in part, for example by the construction of a 
 tunnel through his land, the injury is deemed irreparable without 
 regard to defendant's solvency. 83 So a gas company which has 
 
 60a. Wilson v. City of Mineral 
 Point, 39 Wis. 160, 164. See, also, 
 Heine v. Roth, 2 Alaska, 416; Devon 
 v. Pence (Ky. 1908), 106 S. W. 874; 
 Cole v. Manners (Neb. 1906), 107 N. 
 W. 777. 
 
 61. Masonic Temple Ass'n v. 
 Banks, 94 Va. 695, 27 S. E. 490. See, 
 also, Insurance Co. of North America 
 v. Bonner, 7 Colo. App. 97, 42 Pac. 
 681. 
 
 62. Ward v. Ohio River R. Co., 
 35 W. Va. 481, 14 S. E. 142, where 
 plaintiff alleged " that no one would 
 come to his said livery stable for the 
 purpose of hiring horses and teams 
 when they would have to drive out 
 of said stable immediately upon or 
 alongside of said railroad track along 
 which a locomotive might be coming 
 at any time, and in fact frequently 
 would be there, endangering life and 
 property, all of which would irrepar- 
 ably damage your orator's property." 
 
 63. Richards v. Dower, 64 Cal. 62, 
 
 adopting the opinion of Lord Eldon 
 in Thomas v. Oakley, 18 Ves. 184. 
 In More v. Massini, 32 Cal. 594, it 
 was said : " Should the threat be ful- 
 filled the plaintiff would be deprived 
 of a part of the substance of his 
 inheritance which could not be speci- 
 fically replaced. In the class to 
 which this case belongs no allegation 
 of insolvency is necessary. The in- 
 jury is irreparable in itself." See 
 also People v. Morrill, 26 Cal. 360; 
 Leach v. Day, 27 Cal. 646; Hicks v. 
 Michael, 15 Cal. 116; Merced Mining 
 Co. v. Fremont, 7 Cal. 322. 
 
 The obstruction of a water 
 course so as to flood plaintiff's land 
 and carry off his soil is an irrepar- 
 able injury which is a ground for in- 
 junction. Ferris v. Wellborn, 64 
 Miss. 29. See, also, Ambrose v. Buf- 
 falo, 20 N. Y. Supp. 129. Compare 
 Manigault v. Springs, 123 Fed. 707, 
 affd 199 U. S. 473, 26 Sup. Ct. 127, 
 50 L. Ed. 274. 
 
 72
 
 Definition and Nature of Injunctions. 
 
 §38 
 
 contracted to furnish the owner of a dwelling with gas free of 
 charge for twenty years, and which has a monopoly, can be en- 
 joined by him from wholly cutting off the supply, as the damage 
 would be irreparable. 64 And where repeated injurious acts are 
 done or threatened the entire wrong may be prevented by injunc- 
 tion, though each of such acts taken by itself may not be destructive 
 to the estate and therefore not irreparable, and the legal remedy 
 may be adequate for each single act, if it stood alone. 65 Equity 
 also has jurisdiction to protect a vested franchise from an unlaw- 
 ful invasion or disturbance, upon the ground of irreparable injury 
 or such injury as cannot be adequately estimated in damages at 
 law. 6 * 5 
 
 §38. Same subject; public taking of private property. — An 
 injunction will be granted to prevent an essentially irremediable 
 
 Injury to a forest by cutting 
 and carrying away growing timber 
 is irreparable. King v. Stuart, 84 
 Fed. 546. 
 
 64. Graves v. Key City Gas Co., 
 83 Iowa, 714, 50 N. W. 283, where 
 the court said: " If defendant may 
 withhold the supply of gas, plaintiff 
 can obtain it from no other existing 
 source, for defendant it appears has 
 at present a monopoly to furnish gas 
 to private consumers such as plain- 
 tiff. His gas pipes and burners and 
 fixtures would become valueless and 
 he would be deprived of gas light 
 which to a certain extent is regarded 
 by housekeepers using it as a neces- 
 sity. As plaintiff can supply his 
 dwelling, outhouses and street lamps 
 in no other way thus injury cannot 
 be repaired. . . It is true he could 
 use candles, oils, electricity, but he 
 contracted for gas light and is enti- 
 tled to it. It will not do to say he 
 may have compensation in damages. 
 It would be difficult if not impossible 
 to estimate his damage. If it might 
 
 be done, there would be delay in com- 
 pensation, subjecting plaintiff to dis- 
 comfort and inconvenience and loss 
 for probably a protracted period." 
 
 Compare Loy v. Madison & Han- 
 cock Gas Co.. 156 Ind. 332, 58 N. E. 
 844. 
 
 65. Griffith v. Hilliard, 64 Vt. 643, 
 25 Atl. 427, where plaintiff expended 
 large sums in fitting up kilns, mills 
 and appliances to manufacture char- 
 coal and lumber on certain wood land 
 which he owned, and had contracted 
 for the sale of the products, and de- 
 fendant, who was cutting and draw- 
 ing timber from the land and threat- 
 ened to continue doing so, was en- 
 joined. See, also, Smith v. Rock, 59 
 Vt. 232, 9 Atl. 551; Langdon v. 
 Templeton, 61 Vt. 119, 19 Atl. 839; 
 Murphy v. Lincoln, 63 Vt. 278, 22 
 Atl. 418; Erhardt v. Boaro, 113 U. 
 S. 539, 5 S. Ct. 565, 28 L. Ed. 1113; 
 Iron Co. v. Reymert, 45 N. Y. 703; 
 Power Co. v. Tibbetts, 31 Conn. 165. 
 
 66. Bessemer v. Bessemer Water- 
 works (Ala. 1907), 4* So. 663. 
 
 73
 
 §38 
 
 Definition and Nature of Injunctions. 
 
 injury, where the appropriation of private property to public use, 
 under color of law, but in fact without authority, is threatened j 68 
 and a defendant will be restrained from exercising an ultimate 
 right until he does the act which has been made a condition 
 precedent to such right, the injunction then to be vacated. 69 Thus 
 a railroad company may be enjoined from using a person's prop- 
 erty without paying for it, but where the injunction by stopping 
 the running of the road would put the public to great incon- 
 venience, and the party to be enjoined can, by agreement or con- 
 demnation, obtain the right to continue the use of the property 
 for railroad purposes, a reasonable time within which to obtain 
 such right will be given before issuing the injunction 70 But 
 where there is no direct taking of private property, but only 
 an incidental injury to it, which can be fully and easily com- 
 pensated in damages recoverable at law, an injunction should not 
 be granted; 71 particularly where the public would suffer great 
 inconvenience from the injunction. 72 
 
 68. Osborne v. Missouri Pac. R. 
 Co., 147 U. S. 248, 37 L. Ed. 155, 13 
 S. Ct. 299, 302, where Fuller, C. J., 
 said : " 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 irreparable in its na- 
 ture; and the appropriation of pri- 
 vate property to public use, under 
 color of law, but in fact without 
 authority, is such an invasion of pri- 
 vate rights as may be assumed to be 
 essentially irremediable, if, indeed, 
 relief may not be awarded ex debito 
 justitiae. But where there is no 
 direct taking of the estate itself, in 
 whole or in part, and the injury com- 
 plained of is the infliction of damage 
 in respect to the complete enjoyment 
 thereof, a court of equity must be 
 satisfied that the threatened damage 
 is substantial, and the remedy at 
 law in fact inadequate, before re- 
 
 straint will be laid upon the progress 
 of a public work; and if the case 
 made aiscloses only a legal right to 
 recover damages, rather than to de- 
 mand compensation, the court will 
 decline to interfere." 
 
 69. McElroy v. Kansas City, 21 
 Fed. 257. 
 
 70. Glover v. Manhattan R. Co., 51 
 N. Y. Super. 1, 17; Henderson v. N. 
 Y. Central R. Co., 78 N. Y. 423; 
 Story Case, 90 N. Y. 122. 
 
 71. Osborne v. Missouri Pac. R. 
 Co., 147 U. S. 248, 37 L. Ed. 155, 13 
 S. Ct. 299, 303, where an abutting 
 owner was held not entitled to an 
 injunction to prevent the legitimate 
 use of a street by a railroad, but 
 must seek his remedy in damages. 
 See, also, Gauss Mf'g Co. v. St. Louis, 
 etc., R. Co., 113 Mo. 308, 20 S. W. 
 658; Julia Bldg. Ass'n v. Bell Tel. 
 Co., 88 Mo. 258. 
 
 72. In McElroy v. Kansas City, 21 
 
 74
 
 Definition and Nature of Injunctions. 
 
 §39 
 
 § 39. Threatened injury must be irreparable The general 
 
 rule is that an injunction will be granted only where an irrepar- 
 able injury is threatened and for which the law does not furnish 
 an adequate remedy. 73 And a bill seeking an injunction on the 
 
 Fed. 257, which was an application 
 for an injunction to restrain the 
 grading of a street in front of the 
 complainant's lot, Brewer, J., then 
 circuit judge, considered under what 
 circumstances a chancellor could 
 grant such relief. It was ruled that 
 if the injury which the complainant 
 would sustain from the act sought 
 to be enjoined could be fully and 
 easily compensated at law, while, on 
 the other hand, the defendant would 
 suffer great damage, and especially 
 if the public would suffer large in- 
 convenience if the contemplated act 
 were restrained, the injunction should 
 be refused, and the complainant re- 
 mitted to his action for damages. If 
 the defendant had an ultimate right 
 to do the act sought to be restrained, 
 but only on some condition precedent, 
 and compliance with the condition 
 was within the power of the defend- 
 ant, the injunction would almost uni- 
 versally be granted until the condi- 
 tion was complied with; but if the 
 means oi complying with the condi- 
 tion were not at defendant's com- 
 mand, then the court would adjust 
 its order so as to give complainant 
 the substantial benefit of the condi- 
 tion, while not restraining defendant 
 from the exercise of its ultimate 
 rights. Inasmuch as while the stat- 
 utes of Missouri provided for the as- 
 sessment of damages resulting from 
 the taking of property for public use, 
 there existed no provision to attain 
 that result where the property was 
 merely damaged, an injunction was 
 granted, with leave to defendant to 
 
 apply for the appointment of com- 
 missioners to ascertain and report the 
 damages which complainant would 
 sustain, upon payment of which the 
 injunction would be vacated. 
 
 73. United States.— New York 
 Grape-Sugar Co. v. American Grape- 
 Sugar Co., 10 Fed. 835. 
 
 California. — Bishop v. Owens (Cal. 
 App. 1907), 89 Pac. 844; Ritter v. 
 Patch, 12 Cal. 298; Middleton v. 
 Franklin, 3 Cal. 238. 
 
 Colorado. — Fulton Irrig. Ditch Co. 
 v. Twombly, 6 Colo. App. 554, 42 
 Pac. 253. 
 
 Connecticut. — Hine v. Stephens, 33 
 Conn. 497, 89 Am. Dec. 217. 
 
 District of Columbia. — Johnson v. 
 Baltimore & Potomac R. Co., 4 App. 
 D. C. 491. 
 
 Florida. — Indian River Steamboat 
 Co. v. East Coast Trans. Co., 28 Fla. 
 387, 10 So. 480. 
 
 Georgia. — Ocmulgee Lumber Co. v. 
 Mitchell, 112 Ga. 528, 37 S. E. 749; 
 Empire Loan & Bldg. Ass'n v. At- 
 lanta, 77 Ga. 496. 
 
 Illinois. — Carlson v. Koerner, 226 
 111. 15, 80 N. E. 562; Ft. Clarke 
 Horse Ry. Co. v. Anderson, 108 111. 
 64, 48 Am. Rep. 545; Holm V. Wind- 
 sor Village, 38 111. App. 650. 
 
 Indiana. — Bolster v. Catterlin, 10 
 Ind. 117; compare Brugh v. Denman 
 (Ind. App. 1906), 78 N. E. 349. 
 
 Maryland. — Cockey v. Carroll, 4 
 Md. Ch. 344. 
 
 Maine. — Augusta Steam Laundry 
 Co. v. Debow, 98 Me. 496, 57 Atl. 
 845. 
 
 75
 
 §39 
 
 Definition and Nature ok I n.h notions. 
 
 ground of irreparable injury must allege facts to enable the court 
 to determine whether the injury will be irreparable as alleged. 
 A mere general allegation that the injury will be irreparable will 
 not suffice. 74 This rule is sustained by numerous decisions. 75 In 
 
 Massachusetts. — Walker v. Brooks, 
 125 Mass. 241. 
 
 Minnesota. — Hart v. Marshall, 4 
 Minn. 294. 
 
 Nebraska. — Normand v. Otoe 
 County, 8 Neb. 18. 
 
 New Jersey. — Central R. Co. v. 
 Standard Oil Co., 33 N. J. Eq. 127; 
 Lewis v. Elizabeth, 25 N. J. Eq. 298. 
 
 New York. — Troy, etc., R. Co. v. 
 Boston, etc., R. Co., 86 N. Y. 107, 
 126; Goldman v. Corn, 111 App. Div. 
 674, 97 N. Y. Supp. 926; 
 Robinson v. Guaranty Trust Co., 
 51 App. Div. 134, 64 N. Y. Supp. 
 525; Roosevelt v. Godard, 52 Barb. 
 533, 544; Johnson v. Kingston Board 
 of Education, 3j8 Misc. R. 593, 78 N. 
 Y. Supp. 53; Sixth Ave. Ry. Co. v. 
 Gilbert Elev. Ry. Co., 43 N. Y. Super. 
 292. 
 
 North Carolina. — East Lake Lum- 
 ber Co. v. East Coast Cedar Co., 142 
 N. C. 412, 55 S. E. 304. 
 
 Ohio. — Stewart v. Little Miami R. 
 Co., 14 Ohio, 353; Commercial Bank 
 v. Bowman, 1 Handy, 246. 
 
 Oregon. — Portland v. Baker, 8 
 Oreg. 356. 
 
 Pennsylvania. — Hicks v. American 
 Natural Gas Co., 207 Pa. St. 570, 57 
 Atl. 55; Haskell v. Gross, 7 Phila. 
 317. 
 
 Wisconsin. — Jacobs v. Lakeside 
 Lumber Co. (Wis. 1908), 114 IN. W. 
 443. 
 
 See Gillam v. Arnold, 32 S. C. 
 503, 11 S. E. 331, where the court 
 said : " Plaintiff's allegations simply 
 are that defendants are about to sell 
 her real estate under a void judg- 
 
 ment and this unquestionably affords 
 no ground for the interference of the 
 equitable remedy by injunction, for 
 even if such sale should be made it 
 certainly would not work any irre- 
 parable mischief to plaintiff, and in 
 fact would not injure her in any 
 way, for it would amount to nothing 
 more than a sale without any au- 
 thority whatever." 
 
 See the rule applied to the 
 maintenance of a sign by lessee. 
 Stirn v. Nash, 19 Civ. Pro. (N. Y.) 
 184. 
 
 74. Town of Orange City v. 
 Thayer, 45 Fla. 502, 34 So. 573; 
 citing Indian River Steamboat Co. v. 
 East Coast Trans. Co., 28 Fla. 387, 
 10 So. 480, wherein it is said that 
 " it will not do to simply allege that 
 the complainant has no adequate 
 remedy at law, and that his dam- 
 ages will be irreparable. The court 
 will not act upon his opinion or his 
 fears in such matters but he must 
 state facts in his bill to enable the 
 court to determine whether or not 
 his alleged injury will be irrepar- 
 able." Per Mabry, J. 
 
 75. United States. — Zinsser v. 
 Cooledge, 17 Fed. 538. 
 
 California. — »3ee Mechanics Foun- 
 dry v. Ryall, 75 Cal. 601; Merced 
 Falls G. & E. Co. v. Turner (Cal. 
 App. 1906), 84 Pac. 239. 
 
 District of Columbia. — Purcell En- 
 velope Co. v. Smith, 26 Wash. L. 
 Rep. 515. 
 
 Florida. — Metcalf Co. v. Martin 
 (Fla. 1907), 45 So. 463; Town of 
 Orange City v. Thayer, 45 Fla. 502, 
 
 76
 
 Definition and Nature of Injunctions. § 39a 
 
 determining whether irreparable injury will result irom the acts 
 of defendant where it is alleged and denied by the parties, the 
 court may resort to the knowledge which it has in common with 
 others. 76 
 
 § 39a. Same subject; application of rule. — In an early and 
 leading case Chancellor Kent decided that an injunction should 
 not be granted to restrain a mere trespass where the injury is not 
 destructive to the plaintiff's estate, but is susceptible of perfect 
 pecuniary compensation. 77 And where a director sued to restrain 
 the board of directors from holding a meeting alleged to be irregu- 
 lar, in that they intended to transact business without a quorum, 
 
 34 So. 573; Indian River Steamboat 
 Co. v. East Coast Transp. Co., 28 
 Fla. 387, 10 So. 480. 
 
 Georgia. — Burma v. Columbus, 105 
 Ga. 42, 31 S. E. 124. See Jones v. 
 Macon, etc., R. Co., 39 Ga. 138; Bat- 
 tle v. Stephens, 32 Ga. 25. 
 
 Maryland. — Consolidated Gas & E. 
 L. & P. Co. v. Northern Cent. R. Co. 
 (Md. 1908), 69 Atl. 518; Carswell 
 v. Swindell (Md. 1906), 62 Atl. 956. 
 
 Missouri. — State v. Wood, 155 Mo. 
 425 56 S. W. 474, 48 L. R. A. 596. 
 
 Xebraska. — State Bank v. Rohren, 
 55 Neb. 223, 75 N. W. 543. 
 
 Nt ic Jersey. — Hagerty v. Lee, 45 
 N. J. Eq. 255, 17 Atl. 826. 
 
 2Vetc York. — McHenry v. Jewett, 
 90 N. Y. 58, 62; Ehrich v. Grant, 
 111 App. Div. 196, 97 N. Y. Supp. 
 600; Brown v. Metropolitan Gaslight 
 Co, 38 How. Prac. 133; Corning v. 
 Troy Iron Foundry, 6 How. Prac. 89. 
 
 Xorth Carolina. — See Moore v. Sil- 
 ver Valley Min. Co., 104 N. C. 534, 
 10 S. E. 679; Lewis v. Roper Lum- 
 ber Co., 99 N. C. 11, 15, 5 S. E. 19; 
 Hettrick v. Page, 82 N. C. 65. 
 
 Pennsylvania. — Philadelphia v. 
 
 Crump, 1 Brewst. 320. 
 
 West Virginia. — Pence v. Carney 
 
 (W. Va. 1905), 52 S. E. 702; Wat- 
 son v. Farrell, 34 W. Va. 406, 12 
 S. E. 724. 
 
 76. Consolidated Electric L. Co. v. 
 People's Electric L. & G. Co., 94 Ala. 
 372, 10 So. 440. As was said by 
 the court in Crescent City, etc., Co. 
 v. Police Jury, 32 La. Ann. 1192: 
 " If a petitioner swear that he ap- 
 prehends that the defendant will 
 make a square circle, and that by 
 the making thereof he will sustain 
 an irreparable injury and apply for 
 an injunction, the court notwith- 
 standing verification by oath of the 
 allegation in the petition would be 
 justified in refusing the remedy." 
 
 77. Jerome v. Ross, 7 Johns. Ch. 
 (N. Y.) 315, 331, where it was said: 
 " The plaintiff speaks of the injury 
 as irreparable, because the loads of 
 stone taken from the mass of rock 
 cannot be replaced or restored; but 
 as he does not state that the rock 
 was of any use to him as proper or 
 fit for building, etc., or that it was 
 even desirable as an object of orna- 
 ment or taste, there was no need of 
 having the same identical fragments 
 of stone replaced, and the injury 
 was not in the sense of the law 
 
 77
 
 § 39a Definition and Nature of Injunctions. 
 
 the injunction was denied because the only irreparable injury 
 that could result to him would bo the discontinuance of a suit 
 irregularly brought by the company against some of the directors. 71 
 So the removal of trees which will not destroy or materially alter 
 the character of premises, but will only increase the cost of fuel, 
 is not an irreparable injury, where the trespasser is able to respond 
 in damages. 79 And where a gas company, which was under a 
 contract with plaintiffs to furnish each of them gas for dwelling 
 purposes so long as a sufficient amount of gas would flow from the 
 company's well, cut off the gas, claiming that the flow was no 
 longer sufficient to supply the plaintiffs, it was decided that they 
 were not entitled to an injunction restraining the company from 
 cutting off the gas in the absence of a showing that plaintiffs had 
 no other means of heating or lighting their dwellings. 80 Again, 
 the removal from demised premises of articles which are not 
 fixtures but personal chattels, which can be removed without injury 
 to the buildings, and whose exact money value can be readily 
 determined, is not an irreparable injury to the freehold. 81 And 
 a collector for one merchant cannot ordinarilv be restrained from 
 
 irreparable. It was susceptible of a parable injury. In the latter case 
 
 perfect pecuniary compensation." the court held that an injunction 
 
 See upon this point chapt. 39 should not be granted to restrain the 
 
 herein. pumping of water from a fresh water 
 
 78. Sullivan v. Venner 63 Hun, lake when it is not shown that the 
 634; 18 N. Y. Supp. 398, where Van owners of abutting property will suf- 
 Brunt, J., speaks of the evils antici- fer actual and material injury, but 
 pated by plaintiff as " imaginary, in- that the fear of threatened injury 
 definite and undetermined." is based on theoretical grounds, hav- 
 
 79. Heaney v. BUtte, etc., Com- ing little or no foundation in actual 
 mercial Co., 10 Mon. 590, 27 Pac. practical experiment. Also, Winter 
 379, where the trees were on a min- v. Montgomery, 93 Ala. 539, 9 So. 
 ing claim and were necessary for 366; East, etc., R. Co. v. East Ten- 
 fuel, and the removal was held not a nessee R. Co., 75 Ala. 275. 
 
 ground for injunction within the rule 80. Loy v. Madison & Hancock Gas 
 
 laid down by "Kent in Jerome v. Ross, Co., 156 Ind. 332, 58 N. E. 844. 
 
 6 Johns. Ch. 315. See, also, Smith 81. Loeser v. Liebmann, 14 N. Y. 
 
 v. King, 61 Conn. 511, 23 Atl. 923; Supp. 569, aff'd 137 N. Y. 163; 
 
 Wintermute v. Tacoma, etc., Water Thompson v. Matthews, 2 Edw. Ch. 
 
 Co., 3 Wash. 727. 29 Pac. 444, 212; Balcom v. Julien, 22 How. Pr. 
 
 where there was no evidence of irre- 349. 
 
 78
 
 Definition and Nature of Injunctions. 
 
 §39b 
 
 accepting a similar position with another merchant, though bound 
 by contract not to do so, for the damage is not irreparable, except 
 in very special circumstances. 82 
 
 § 39b. Same subject ; abating liquor nuisance. — A preliminary 
 injunction will not be granted by a Federal court to prevent a 
 State court from enforcing its decree restraining plaintiff from 
 selling wine and beer, and abating his saloon as a nuisance, under 
 the State law, after the case has been removed to the Federal court ; 
 as in such a case the injury to plaintiff would not be irreparable, 
 but capable of being fully compensated by damages at law, in the 
 event of the removed case being decided in his favor. 83 In dis- 
 tinction from the saloon cases, just adverted to, are the brewery 
 cases, in which there are grounds for injunctive relief, in order 
 to prevent irreparable injury. 84 
 
 82. Sternberg v. O'Brien, 48 N. J. 
 Eq. 370, 22 Atl. 348, where the court 
 was satisfied the defendant was not 
 in a position to draw away plaintiff's 
 customers. 
 
 83. Wagner v. Drake, 31 Fed. 
 849, in which, as one of the so-called 
 Saloon Cases, Love, J., said : " The 
 damages in such cases are not large; 
 barely sufficient, indeed, in amount 
 to bring them into this court. The 
 buildings in which the saloon business 
 is carried on are not like a great 
 brewery which, with its machinery 
 and appliances, cannot be converted 
 to any other use than that for which 
 they were intended. The chief loss 
 of the salcon owner, if his business 
 be closed by the action of the State 
 court, is the value of the fixtures 
 and the furniture used in his trade. 
 These may be fully compensated in 
 damages in actions at law, and it is 
 perfectly clear, in point of law, that 
 if these saloon cases have been leg- 
 ally transferred to this court, and if 
 
 the Supreme Court of che United 
 States shall so decide, then every in- 
 dividual who, subsequent to the re- 
 moval, proceeds against them in the 
 State court, makes himself a tres- 
 passer; and that as such he may be 
 made liable for all damages that may 
 accrue to the saloon owner." 
 
 84. Wagner v. Drake, 31 Fed. 849, 
 853, where Love, J., said: " I do not 
 doubt that in those removal cases, 
 where rights of property are the di- 
 rect subject of litigation, if any 
 party were proceeding under the au- 
 thority of the State court, after the 
 removal, to sell, destroy, confiscate, 
 or otherwise meddle with the prop- 
 erty, so as to seriously impair its 
 value, it would be the duty of the 
 federal court to prevent such injur- 
 ious acts; for otherwise the final de- 
 cree of the court, establishing the 
 right of any claimant to the prop- 
 erty, would be useless and nugatory. 
 The injury in such case would be 
 irreparable. Such was the view 
 
 79
 
 §40 
 
 Definition a.m. .Vwiki of I.\.n.\( iTioars. 
 
 § 40. Same subject ; exceptions. — There are in modern times 
 some cases where the relief by injunction is not based upon irre- 
 parable injury and the defendant'9 insolvency. 85 So to entitle a 
 party to a temporary injunction under the Iowa Code it is not 
 
 which this court took of the Brewery 
 cases, When/ they were transferred 
 from the State courts, upon the au- 
 thority of the decision in State v. 
 Walruff, 26 Fed. Rep. 178. In these 
 Brewery cases the properties in- 
 volved were of very great value. No 
 bond of indemnity was required of 
 parties who sued out injunctions in 
 the State courts, aiming at their 
 abatement and destruction as virtual 
 nuisances. The consequences to the 
 owners of such properties would have 
 been simply ruinous, and the injury 
 irreparable. These were clear cases, 
 therefore, calling for the equitable 
 discretion of this court in granting 
 preliminary injunctions. Unless the 
 court wholly abandoned its jurisdic- 
 tion of causes thus removed here, and 
 remanded them to the State courts, 
 there seemed to be an imperative ne- 
 cessity for the granting of orders 
 staying proceedings in the State 
 courts, which threatened the utter 
 destruction of tiie brewery property, 
 the very subject of litigation. It was 
 manifest that actions at law for dam- 
 ages by the owners of brewery prop- 
 erties injured to the extent of sums 
 amounting to twenty, thirty, forty 
 and fifty thousand dollars would have 
 proved wholly futile, and therefore 
 that the impending injury was in- 
 evitable." 
 
 85. Bolton v. McShane, 67 Iowa, 
 207, 25 N. W. 135, where the court 
 says: "There are numerous cases in 
 this court wherein equity has inter- 
 fered by injunction to restrain road 
 supervisors and others from remov- 
 
 ing or interfering with fences, etc., in 
 the discharge of their official duty. 
 Relief in these cases was not based 
 upon grounds of the irreparable 
 character of the injury. . . . Jus- 
 tice and sound policy demand that for 
 the protection of 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 rem- 
 edy for the settlement of the con- 
 troversy between the parties in ad- 
 vance of the injury to the one and 
 the liability incurred by the other, 
 by an action in chancery, wherein an 
 injunction will suspend the act of 
 the supervisor until the questions of 
 law and fact involved in the contro- 
 versy are settled. This is in accord 
 with justice and public policy." So 
 in Quinton v. Burton, 61 Iowa, 471, 
 16 N. W. 569, the road supervisor 
 was forever enjoined from building a 
 bridge as he proposed which would 
 destroy plaintiffs hedge and shade 
 trees, the question of irreparable in- 
 jury not being raised. See, also, Bills 
 v. Belknap, 36 Iowa, 583; Grant v. 
 Crow, 47 Iowa, 632; McCord v. High, 
 24 Iowa, 336. In Groff's Appeal, 128 
 Pa. St. 621,635, 18 Atl. 431, the 
 court said: "The rule as to enjoin- 
 ing irreparable injuries only has no 
 application to acts, especially cor- 
 porate acts, entirely without author- 
 ity, for which there is no adequate 
 measure of damages at law." 
 
 80
 
 Definition and Nature of Injunctions. 
 
 §41 
 
 necessary to allege or prove that the threatened injury will be 
 irreparable nor that the defendant is insolvent ; it is sufficient that 
 the contemplated injury will greatly injure the plaintiff. 86 And 
 under a constitutional provision that private property shall not be 
 taken or damaged without compensation to the owner it has been 
 decided that an abutting owner may be granted an injunction 
 against the grading of the street in front of his premises without 
 the payment of compensation though there is no allegation of 
 irreparable injury. 87 
 
 § 41. No injunction for past acts. — An injunction is for the 
 most part preventive, and cannot ordinarily be employed to cor- 
 rect a wrong already done or restore to a party rights of which he 
 has been deprived. 88 So in an early case in New Jersey it is 
 
 86. § 3388 of the Code provides 
 that a temporary injunction may is 
 sue where the relief or any part 
 thereof " consists in restraining the 
 commission or continuance of some 
 act which woula produce great or 
 irreparable injury to the plaintiff," 
 and, this is liberally construed in 
 Price v. Baldauf, 82 lowa, 669, 40 X. 
 W. 983, 47 N. \\ . 1079. But see Bol- 
 ton v. Mefihaae, t;7 lowa, 207, 25 N. 
 W. 135, which would seem generally 
 to require irreparable injury as 
 ground for a permanent injunction 
 and where the court says : " It is a 
 familiar doctrine that the commission 
 of a mere trespass will not be re- 
 .strained by injunction when the in 
 jury would not be irreparable, the 
 trespasser is solvent, and adequate 
 compensation for the injury in dam- 
 ages may be recovered by law. But if 
 the injury be irreparable, chancery 
 will interfere by injunction. See 2 
 Story, Eq. Jur. § 928, and notes. 
 
 87. Searle v. Lead, 10 S. D. 312, 
 73 N. W. 101, 39 L. R. A. 345. 
 
 88. United states. — Baring v. Erd 
 wan, Fed. Cas. No. 981. 
 
 California. — Gardner v. Stroever, 
 81 Cal. 148, 22 Pac. 483. 
 
 Florida. — Pensacola & Ga. R. Co. 
 v. Spratt. 12 Fla. 26, 91 Am. Dec. 
 747. 
 
 Georgia. — McAIaster v. City of 
 Waynesboro, 122 Ga. 231, 50 S. E. 
 122; Georgia Pac. Ry. v. Douglas 
 ville, 75 Ga. 828. 
 
 Illinois. — Menard v. Hood, 68 111. 
 121; Mead v. Cleland, 62 111. App. 
 294; Highway Com'rs v. Deboe, 43 111. 
 App. 25. 
 
 Indiana^ — Shafer v. Fry, 164 Ind. 
 315. 73 N. E. 698; Cole v. Duke, 79 
 Ind. 107. 
 
 Louisiana. — Trevigne v. School 
 Board, 31 La. Ann. 105. 
 
 Massachusetts. — O'Brien v. Mur- 
 phy, 189 Mass. 353, 75 N. E. 700. 
 
 Michigan. — East Saginaw Street 
 Ry. Co. v. Wildraan, 58 Mich. 286, 25 
 X. W. 193. 
 
 Minnesota. — Vanderburgh v. City 
 of Minneapolis, — Minn. — , 100 N- 
 W. 668. 
 
 81
 
 §41a 
 
 Definition and Nature of Injunctions. 
 
 declared that past injuries are in themselves no ground for an 
 injunction and that the province of the injunction is not to afford 
 a remedy for what is past but to prevent future mischief. The 
 fact, however, that injuries have already been inflicted will not 
 prevent the granting of an injunction where the injuries are 
 continued or the right to continue them set up and persisted in, 
 for in such a case if the facts are properly evStablished the court 
 will interfere for the protection of the complainant. 89 
 
 §41a. Same subject; application of rule. — An actual exercise 
 of corporate judgment and will which has already taken place 
 cannot be revoked or annulled by inj unction. 90 And an injunction 
 suit to restrain the enforcement of an illegal contract for the main- 
 
 Missouri. — Davis v. Hartwig, 195 
 Mo. 380, 94 S. W. 507; Graden v. 
 City of Parkville, 114 Mo. App. 527, 
 90 S. W. 115. 
 
 Nebraska. — Bishop v. Huff (Neb. 
 1908), 116 N. VV. 665. 
 
 Nevada. — Sherman v. Clark, 4 Nev. 
 138, 97 Am. Dec. 516. 
 
 New Jersey. — United N. J. R. & 
 C. Co. v. Standard Oil Co., 33 N. J. 
 Eq. 123; Southard v. Morris Canal, 
 
 1 N. J. Eq. 518. 
 
 New York. — People v. Clark, 70 
 N. Y. 518. 
 
 North Carolina. — Huet v. Piedmont 
 Lumber Co., 138 N. C. 443, 50 S. E. 
 846. 
 
 Pennsylvania. — Shell v. Kemmerer, 
 
 2 Pears, 293. 
 
 Rhode Island. — Manufacturers' 
 
 Outlet Co. v. Longley, 20 R. I. 86, 37 
 Atl. 535. 
 
 Wisconsin. — Cobb v. Smith, 16 Wis. 
 661. 
 
 An injunction is a preventive 
 remedy only, and cannot be in- 
 voked to restrain a party from doing 
 an act which he has already done. In 
 such a case, the party injured must 
 
 be remitted to his remedy at law, 
 which is, in every respect, competent 
 to all'ord adequate relief. Kahn v. 
 Old Teleg. Min. Co., 2 Utah, 13, 18, 
 per Schaell'er, J., citing Wangelin v. 
 Goe, 50 111. 459. 
 
 As a general rule it may be said 
 that injunction is a preventive rem- 
 edy and will only be used to prevent 
 future injury, rather than to afford 
 redress for wrongs already commit- 
 ted, and is, therefore, to be regarded 
 more as a preventive than a remedial 
 remedy. Sproat v. Durland, 2 Okla. 
 24, 43, per the court. 
 
 " The function of a writ of in- 
 junction is to ail'ord preventive re- 
 lief; it is powerless to correct wrongs 
 or injuries already committed. This 
 is alphabetical law." City of Alma 
 v. Loehr, 42 Kan. 368, 369, 22 Pec. 
 424. Per Simpson, C. 
 
 89. Society for Establishing Use- 
 ful Manufactures v. Morris Canal 
 Co., 1 N. J. Eq. 157, 191, 21 Am. Dec. 
 41. 
 
 90. Callan v. Board of Comm'rs. 
 45 La. Ann. 673, 12 So. 834. 
 
 82
 
 Definition and Nature of Injunctions. § 41a 
 
 tenance of a separate school will not be entertained if the contract 
 has been practically executed. 91 And ordinarily an injunction 
 will not be granted against striking employees after the strike has 
 terminated. 92 Nor will an injunction to restrain the issuance of 
 county warrants be granted where the warrants have already been 
 issued and even though granted it is decided that it cannot in any 
 manner affect parties in interest. 93 And likewise a perpetual 
 injunction will not be granted to restrain city officers from issuing 
 its bonds in aid of local improvements where such bonds had been 
 issued, sold and delivered before the temporary injunction was 
 served. 94 Nor will the jurisdiction of the court in a proceeding 
 be aided by a prayer for an injunction where the bill is not for an 
 injunction as a primary remedy but seeks to secure and preserve 
 certain property from sale during litigation, it appearing that 
 when the bill was filed there was no property to protect as it had 
 been sold. 93 And though a threatened unauthorized and injurious 
 removal of the office of a mining company, by a person acting as 
 superintendent and secretary might be enjoined, an injunction 
 would not reach the case of a removal already made. 96 And like- 
 wise an injunction will not lie against the removal of a building 
 which has been already moved, 97 or against the erection of a build- 
 ing where the building had been erected before the commencement 
 of tho action. 98 So after a bridge has been completed it is too 
 late to obtain an injunction to prevent its completion, and it is 
 not within the power of a chancellor at chambers to grant a manda- 
 tory order requiring a municipal corporation to remove any part 
 of a bridge forming a part of one of its streets, but on the final 
 trial equitable relief may be decreed. 99 And though a court of 
 equity may be required by statute to issue an injunction where 
 
 91. Fugate v. McManama, 50 Mo. 96. Sherman v. Clark, 4 Nev. 138, 
 App. 39. 97 Am. Doc. 516. 
 
 92. Reynolds v. Everett, 67 Hun 97. East Saginaw St. R. Co. v. 
 (X. Y.), 29}, 22 X. Y. Supp. 306. Wildman, 58 Mich. 286, 25 N. W. 193. 
 
 93. Webster v. Fish, 5 Nev. 190. 98. Gardner v. Stroever, 81 Cal. 
 
 94. City of Alma v. Loehr, 42 148, 22 Pac. 483. 
 
 Kan. 308. 22 Pac. 424. 99. Georgia Pacific R. Co. v. Doug- 
 
 95. Cecil Nat. Bank v. Thurbee, lasville, 75 Ga. 828. 
 59 Fed. 913, 8 C. C. A. 365. 
 
 83
 
 §42 Definition and Nature oi Injunctions. 
 
 certain facts arc proven, yet the purpose of the writ being to 
 prevent the continuance of a nuisance or wrong, it is evident that, 
 if it is clearly apparent to the court that there will not and cannot 
 be a continuance thereof, it is entirely proper to refuse the writ. 1 
 But in Pennsylvania it is decided that on an application for a 
 preliminary injunction a mandatory order may be made restoring 
 the status quo which existed prior to the wrongful act and preserv- 
 ing it until the final hearing, 2 and this rule has been adopted in 
 order, as has been said, to check the alleged disposition of corpora- 
 tions, both private and municipal, to settle their controversies by 
 force instead of applying to the court for an adjustment of their 
 differences. 3 
 
 §42. Laches and acquiescence; general rule. — An injunction 
 is not a matter of right and will not be issued when upon a broad 
 consideration of the situation of the parties, good conscience does 
 not require it. 4 A party may forfeit his right to an injunction by 
 sleeping on his rights and allowing a grievance to continue for a 
 long time. 5 The court lends its aid only to the vigilant, active and 
 
 1. Redley v. Greiner, 117 Iowa, him in its use pending this litiga- 
 679, 680, 91 N. W. 1033, per Sher- tion." 
 
 win, J. 4. Pennsylvania P. R. Co. v. Glen- 
 
 2. Whiteman v. Fuel Gas Co., 139 wood & Dravosburg Elec. S. R. Co., 
 Pa. St. 492, 20 Atl. 1062; Black Lick 184 Pa. St. 227, 237, 39 Atl. 80; 
 Co. v. Saltsburg Gas Co., 139 Pa. St. Heilman v. Lebanon & Annville St. 
 448, 21 Atl. 432; Thompson Glass Ry. Co., 175 Pa. St. 188, 198, 34 Atl. 
 Co. v. Fayette Gas Co., 137 Pa. St. 647; Messner v. Railway Co., 13 Pa. 
 317, 21 Atl. 93. Super. Ct. 429, 434. See, also, 
 
 3. Easton, S. E. & W. E. R. Co. v. Skrainka v. Oertel, 14 Mo. App. 474. 
 Easton City, 133 Pa. St. 505, 19 Atl. 5. United States.— Felix v. Pat- 
 486; Cooke v. Boynton, 135 Pa. St. rick, 145 U. S. 317, 12 Sup. Ct. 862, 
 102, 19 Atl. 944, where the court 36 L. Ed. 719; Hoyt v. Latham, 143 
 said: "What we did in the Easton U. S. 553, 12 Sup. Ct. 368, 36 L. Ed. 
 case we will do here. ... As far 259; Hammond v. Hopkins, 143 U. 
 as it is possible on a preliminary in- S. 524, 12 Sup. Ct. 418, 36 L. Ed. 
 junction we will restore the status 134; Bailey v. Glover, 21 Wall. 342, 
 quo as it existed prior to the de- 22 L. Ed. 636. 
 
 fendant's acts. While the injunction Alabama. — Johnson v. Oldham 
 
 will not require the defendant to re- (Ala. 1906), 40 So. 213; Western 
 
 lay the tramway, it will enable the TJn. Tel. Co. v. Judkins, 75 Ala. 428. 
 
 plaintiff to do so, and will protect California. — Bigelow v. City of Los 
 
 84
 
 Definition and Xatuke of Injunctions. 
 
 §42 
 
 faithful. Unreasonable delay and mere lapse of time, inde- 
 pendently of any statute of limitations, constitutes a defense in 
 
 Angeles, 141 Cal. 503, 75 Pac. 111. 
 
 District of Columbia. — Keane v. 
 Chamberlain, 27 Wash. Law Rep. 98. 
 
 Georgia. — Atlantic & B. R. Co. v. 
 Kirkland (Ga. 1907), 59 S. E. 220; 
 Wood v. Macon & B. R. Co., 68 Ga. 
 539. 
 
 Illinois. — Carney v. Marseilles, 136 
 111. 401, 26 N. E. 491; Higgins v. 
 Bullock, 73 111. 205. 
 
 Indiana. — Midland R. Co. v. Smith, 
 113 Ind. 233, 15 N. E. 256; Logans- 
 port v. Uhl. 99 Ind. 531, 49 Am. Rep. 
 109. 
 
 Kansas. — Reisner v. Stron_ 
 Kan. 410. 
 
 Maryland. — Baltimore v. Grand 
 Lodge, 44 Md. 436. 
 
 Massachusetts. — Levi v. Worcester 
 Consol. St. R. Co., 193 Mass. 116, 78 
 N. E. 853; Smith v. Brown. Iti4 Mass. 
 584, 42 N. E. 101. 
 
 Nebraska. — Brown v. Kramer, 18 
 Neb. 355, 25 X. W. 356. 
 
 \ i Jersey. — Island Heights Ass'n 
 v. Island Heights W. P.. (J. & S. Co. 
 (1906), 62 Atl. 773; Cronin v. Bloem- 
 ecke, 58 X. J. Eq. 313. 43 Atl. 605; 
 Ocean City Ajm'b v. Schuich. 57 X. 
 J. Eq. 268, 41 Atl. 914; Meredith v. 
 Sayre, 32 X. I. Bq. 557; Traphagen 
 v. Jersey City. 29 X. J. Eq. 206; 
 Liekstein v. Xewark, 24 X. J. Eq. 
 200; Scudder v. Trenton Delaware 
 Falls Co.. 1 X. J. Eq. 694, 23 Am. 
 Dec. 756. 
 
 1 1 tr York. — See Knoth v. Manhat- 
 tan Ry. Co., 187 X. Y. 243, 251, 79 
 N. E. 1015; affg. 109 App. Div. 802; 
 Musgrave v. Sherwood, 54 How. Prac. 
 338 ; Xinth Ave. R. Co. v. New York 
 El. R. Co., 3 Abb. N. C. 347. 
 
 No-rth Carolina. — Moore v. Silver 
 
 Valley Mining Co., 104 X. C. 534, 10 
 S. E. 679; Pender v. Pittman, 84 N. 
 C. 372. 
 
 Ohio. — Goodwin v. Cincinnati & W. 
 C. Co., 18 Ohio St. 169; Chapman v. 
 Mad River & L. E. R. Co., 6 Ohio 
 St. 119. 
 
 P en nsy lvania* — Stewart Wire Co. 
 v. Lehigh Coal & X. Co., 203 Pa. St. 
 474, 53 Atl. 352; Pennsylvania R. R. 
 Co. v. Glenwood & Dravosburg E'ec. 
 St. R. Co., 184 Pa. St. 227, 39 Atl. 
 80; Commonwealth v. I rousliore, 14j 
 Pa. St. 157, 22 Atl. 807 j Orne v. Fri- 
 denburg, 143 Pa. St. 487, 22 Ail 
 832; Grey v. Ohio & P. Ry. Co., 1 
 Grant Cas. 412. 
 
 YVxu.v. — liorrifl v. Edwards, 62 Tex. 
 205. 
 
 Wieeotfin. — Helms v. McFadden, 
 18 Wis. 191; Sheldon v. Rockwell, 9 
 Wis. Itiii, 76 Am. Dec. 265. 
 
 nla.— Yeats v. St. John, N. B. 
 Eq. Cas. 25. 
 
 But see Bender v. Stein, 27 Ala 
 104, 62 Am. Dec. 758. 
 
 It is a familiar rule that the 
 time at which a party appeals t a a 
 court of equity for relief affects 
 largely the character of relief which 
 will be granted. The principle has 
 frequently been applied in !he de- 
 cisions of this court and the Supreme 
 Court of the United States. Knoth 
 v. Manhattan Ry. Co., 187 X. /. 243, 
 251, 79 X. K. 1015, affg. 109 App. 
 Div. 802, per Bartlett, J. 
 
 The diligence required by the 
 law ought to be measured by the 
 mischief which would ensue from a 
 want of it. Sheldon v. Rockwc". .• 
 Wis. 166, 183. Per. Dixon, J. 
 
 As to sale under execution.- 
 
 85
 
 H2 
 
 Definition and Nature of Injunctions. 
 
 a court of equity. This doctrine is very ancient and established 
 by a great number of decisions. 6 So an injunction will be refused 
 to a complainant who has intentionally delayed his application 
 until he has obtained an inequitable advantage of the defendant. 7 
 And in particular should delay and laches operate as an estoppel 
 where the rights of innocent third persons have intervened. 8 A 
 
 Where defendants consent to waive 
 all defenses, and confess judgment on 
 the strength of a verbal agreement 
 that plaintiffs will stay execution for 
 a year, they cannot enjoin a sale 
 under the execution which plaintiffs 
 levied before the end of the year, be- 
 ing guilty of laches in standing by 
 and permitting the execution to be 
 levied without moving the court to 
 recall it. Moulton v. Knapp, 26 Pac. 
 210, 88 Cal. 446, aff'g 85 Cal. 386. 
 
 The court will enjoin a party 
 from pleading the statute of 
 limitations to a suit at law where 
 the complainant lost his remedy dur- 
 ing the pendency of an injunction 
 against him at the suit of the de- 
 fendant, but if he has been guilty of 
 laches or negligence, the court will 
 deny him relief. Doughty v. Doughty, 
 10 N. J. Eq. 348. 
 
 Unexplained acquiescence in 
 the infringement of a patent 
 will forfeit the right to injunctive re- 
 lief. Mundy v. Kendall, 23 Fed. 591; 
 Ladd v. Cameron, 25 Fed. 37 ; Sperry 
 v. Ribbans, 1 N. J. Law Jour. 115. 
 Compare Consolidated Fastener Co. v. 
 American Fastener Co., 94 Fed. 523. 
 
 By owner of copyright. — In 
 Lewis v. Chapman, 3 Beavan, 133, 
 the plaintiff sought to restrain the 
 publication of a work of which he 
 was the owner of a copyright. It ap- 
 peared he had lain still for six years 
 and seen the defendant expending his 
 money in printing the work, etc.; 
 
 upon this ground equity refused to 
 relieve the plaintiff. 
 
 6. Sheldon v. Rockwell, 9 Wis. 166, 
 181. Per Dixon, J. 
 
 See preceding notes in this section 
 for citations. 
 
 7. Traphagen v. Jersey City, 29 
 N. J. Eq. 206, where the chancellor 
 said : " It is undisputed that the 
 complainants have permitted the au- 
 thorities to oust them and to take 
 possession of the land they now 
 claim, and to expend in preparing it 
 for use as a public street, a large 
 amount of public funds, and that 
 since it has been so prepared, they 
 have stood by quietly and permitted 
 it to be constantly appropriated to 
 the purposes of a public highway. 
 Under these circumstances they have 
 so far sanctioned the action of the 
 public authorities as to divest them- 
 selves of the right to demand that 
 a court of equity shall now by its 
 interdiction deprive the public even 
 temporarily of the benefit of its ex- 
 penditure." Morris, etc., R. Co. v. 
 Prudden, 20 N. J. Eq. 530; Easton v. 
 New York, etc., R. Co., 24 N. J. Eq. 
 49. 
 
 8. Moore v. Silver Valley Mining 
 Co., 104 N. C. 534, 10 S. E. 679, 
 where it was said: " Accepting the 
 case as presented, the plaintiff must 
 have been cognizant for many years 
 of the grievances of which he com- 
 plains. A variety of remedies were 
 open to him. It does not appear that 
 
 86
 
 Definition and Mature of Injunctions. § 42a 
 
 mere delay, however, is not sufficient to deprive a party of injunc- 
 tive relief but the failure to act must be with a knowledge of con- 
 ditions that would amount to an acquiescence in the doing of the 
 thing subsequently complained of. 9 
 
 § 42a. Laches and acquiescence ; rule illustrated — The rule 
 that a person's right to an injunction may be barred by laches 
 includes those cases where the complainant has stood by and per- 
 mitted the defendant to expend large sums of money in the exer- 
 cise of a supposed or asserted right. In such a case it would be 
 inequitable to grant the injunction and the complainant will be 
 left to his legal remedy. 10 So where a person stands by and silently 
 sees a public railroad constructed upon his land, it is too late for 
 him, after the road is completed, or large sums have been ex- 
 pended on the faith of his apparent acquiescence, to seek by 
 injunction to deny to the railroad company the right to use his 
 property. 11 And where an abutting owner does not bring an action 
 to enjoin the construction of a public work until such work i9 
 substantially completed, the court is justified in refusing to grant 
 
 he ever in any way took steps to ar- 36 Atl. 186; Yeats v. St. John, N. 
 
 rest or seek redress on account of the B. Eq. Cas. 25. 
 
 same, nor is any cause assigned for 11 Goodin v. Cincinnati & W. C. 
 
 or explanation given for such delay. Co., 18 Ohio St. 169, 98 Am. Dec. 
 
 This is singular and suggestive of a 95, holding that in such a case there 
 
 want of good faith. In the meantime only remains to the owner the right 
 
 rights of third persons — so far as ap- of compensation. The court said: 
 
 pears, innocent persons — have super- " The injunction in the present case 
 
 vened. The plaintiff is clearly charge- might have been sought at the first 
 
 able with gross laches and upon well known attempt, or even threat, to 
 
 settled principles of equity he cannot despoil the canal, or to construct the 
 
 now be allowed to prejudice such railroad upon its line. The omission 
 
 rights." See Mackintyre v. Jones, 9 to do so is an implied assent. The 
 
 Pa. Super. Ct. 543. work being completed, the public, as 
 
 9. Adams v. Birmingham Realty well as those directly interested in 
 Co. (Ala. 1908), 45 So. 891. the road, as stockholders and cred- 
 
 10. Smith v. Brown, 164 Mass. itors, have a right to insist on the 
 584, 42 N. E. 101; Moore v. Silver application of the rule that he who 
 Valley Min. Co., 104 N. C. 534, 10 S. will not speak when he should, will 
 E. 679; Riverton Ferry Co. v. Mc- not be allowed to speak when he 
 Keesport & D. B. Co., 179 Pa. St. 466, would." Per Welch, J. 
 
 87
 
 §42a 
 
 Definition and Nature of Injunctions. 
 
 a preliminary injunction in view of the public interests involved, 
 and of the fact that such an injunction, while it would affect most 
 seriously those engaged in the construction of the work would be 
 of no material advantage to the abutting owner. 12 And, so, where 
 the owner of the fee of a highway and of abutting lots permitted 
 a railroad to be constructed therein at great expense, without doing 
 more than object to it, it was held by the Supreme Court of Mis- 
 souri that he should at once have taken positive action against the 
 injury of which he complained, and not have waited until the road 
 was completed, and that by his long acquiescence he had forfeited 
 his right to an injunction. 13 And in this connection it has been 
 decided that a party by whose encouragement expenditures have 
 been made to such an extent as are not capable of reimbursement 
 except by enjoyment will be enjoined from disturbing the posses- 
 sion, as in such a case he is estopped by equity because he would 
 wrong the other party by withdrawing his consent. 14 Again, where 
 
 12. Barney v. City of New York, 
 83 App. Div. (N. Y.) 237, 82 N. Y. 
 Supp. 124. See, also, Yeats v. St. 
 John, N. B. Eq. Cas. 25, so holding 
 in case of a change of grade of a 
 street. 
 
 13. Planet Property & Financial 
 Co. v. St. Louis, O. H. & C. R. Co., 
 115 Mo. 613, 22 S. W. 616, per Bur- 
 gess, J. : " The city ordinance under 
 which defendant's road was con- 
 structed was approved June 15, 1886, 
 and by the eleventh section defend- 
 ant was required to commence its 
 construction in good faith within 
 three months from its passage and 
 to complete within one year there- 
 after. This suit was not commenced 
 until September 23, 1890, and while 
 plaintiff alleges that the road has 
 been constructed and is being oper- 
 ated it took no steps to prevent the 
 entry of defendant on its land and 
 the construction of its road. The pe- 
 tition does aver, however, that it ob- 
 
 jected and notified defendant of its 
 objection while the road was being 
 built. It seems that equity and fair 
 dealing would have required plain- 
 tiff to have taken some action in 
 order to have prevented the injury 
 complained of and that it ought not 
 to be permitted to stand by and see 
 the work going on and large sums of 
 money in and about the same being 
 expended and after all this has been 
 done and the road completed and in 
 operation, then come into a court of 
 equity and ask that the defendant be 
 enjoined and restrained from the op- 
 eration of its road until it shall have 
 been compensated for the injury to 
 its lands by reason of its construc- 
 tion and operation. An injunction j" 
 should not be granted under such 
 circumstances. There is no equity in 
 the bill and the demurrer to the peti- 
 tion was properly sustained." 
 
 14. Big Mountain Improvement 
 Co.'s Appeal, 54 Pa. St. 361, 372. 
 
 88
 
 Definition and Natuee of Injunctions. 
 
 43 
 
 plaintiff's grantors stood by and permitted defendant to build on 
 an adjoining lot in violation of a restriction in his deed, an 
 injunction to restrain the further maintenance of the buildings 
 was denied to plaintiff and he was left to his remedy at law. 15 And 
 a preliminary injunction will not be granted to restrain infringe- 
 ment of a patent when it is shown that the defendant has, with 
 the knowledge of the complainant openly used the infringing 
 mechanism for more than seven years before the suit was brought. 16 
 
 § 43. Same subject ; when laches no defense. — In New York 
 it has been determined 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 the mere laches of a party not amount- 
 ing to an estoppel is no defense where the courts are called upon 
 to sustain a legal right upon grounds of equity and to afford relief 
 
 15. Orne v. Fridenberg, 143 Pa. St. 
 487, 22 Atl. 832, where the court 
 said : " The answer avers that 
 the erections complained of are 
 the same that existed on the 
 premises when the defendant's tes- 
 tator first viewed and bought the 
 premises in 1875 and had then existed 
 more than 21 years. There is no find- 
 ing by the master which contradicts 
 the answer in this respect. Exact 
 dates are not very material in our 
 view of the case as it is undisputed 
 that all the structures were there 
 many years before this bill was filed. 
 . . . It must not be forgotten that 
 the defendants did not put up the of- 
 fending building, nor did their tes- 
 tator. He found them there when he 
 purchased the property, and may well 
 have supposed that the restrictions 
 were no longer in force. Be that as 
 it may the fact remains that the 
 plaintiff was guilty of very gross 
 
 laches in enforcing his rights. If 
 there is anything well settled in 
 equity, it is that a chancellor will 
 not extend the aid of an injunction 
 where a party has slept for a long 
 time upon his rights. This is the 
 recognized rule in England and this 
 country. See German R. C. Asylum's 
 Appeal, 115 Pa. St. 165, 10 Atl. 37; 
 Water Lot Co. v. Bucks, 5 Ga. 315; 
 Mitchell v. Steward, L. R. 1 Eq. 541 ; 
 Roper v. Williams, 12 Eng. Ch. 23. 
 In Clark v. Martin, 49 Pa. St. 289, 
 where a mandatory injunction was 
 awarded to abate a building erected 
 in violation of a restriction the ap- 
 plication was promptly made before 
 its erection. Indeed, I doubt if a 
 case can be found in the books where 
 an injunction has been awarded after 
 the delay that has been shown here." 
 16. Ladd v. Cameron (N. J. 1885), 
 25 Fed. R. 37. 
 
 89
 
 §43 
 
 Definition and Natube of Injunctions. 
 
 by injunction for that purpose. 17 Thus an injunction may be 
 granted with alternative damages because it actually operates 
 as a substitute for the legal remedy of condemnation proceedings. 18 
 Where the fact of a nuisance is free from doubt, a delay of several 
 months will not bar relief by preliminary injunction. 19 And mere 
 knowledge on the part of a life tenant and one of the tenants in 
 
 17. Syracuse Salt Co. v. Rome, 
 etc., R. Co., 22 N. Y. Supp. 321, 
 where the injunction was sus- 
 tained because the injunctive relief 
 and its alternative damages were 
 deemed a substitute for the ordinary 
 statutory proceedings at law for con- 
 demnation; and the court was of 
 opinion that " the plaintiff's legal 
 rights were clearly involved in the 
 action and that the mere acquiescence 
 or laches of the plaintiff not amount- 
 ing to an estoppel constitutes no 
 defence." See Uline v. New York 
 Central & H. R. R. Co., 101 N. Y. 
 98, 4 N. E. 536; Tallman v. Metro- 
 politan El. R. Co., 121 N. Y. 123, 23 
 N. E. 1134; Colreck v. Swinburne, 105 
 N. Y. 503, 12 N. E. 427; Arnold v. 
 Hudson River R. Co., 55 N. Y. 061. 
 In Corning v. Troy, etc., Factory, 40 
 N. Y. 191, 205, the court said: "It 
 is insisted that the equitable right of 
 restoration has been lost by delay. 
 The statute of limitation either at 
 law or in equity has not attached so 
 as to bar the right. The case has, 
 therefore, no analogy to that class of 
 cases where equity has refused relief 
 on the ground that the legal remedy 
 was barred by the statute. . . . 
 All there is of the delay in this case 
 is that the plaintiffs finding the de- 
 fendant using their water power have 
 permitted it to continue such use 
 for about four years. Clearly this 
 indulgence furnishes no reason for 
 the refusal of equity to aid the plain- 
 
 tiffs in the recovery of their legal 
 rights." 
 
 18. In Galway v. Metropolitan El. 
 R. Co., 128 N. Y. 132, 28 N. E. 479, 
 in an action to restrain the company 
 which had constructed its road in a 
 street and thereby interfered with 
 plaintiff's easements therein, it ap- 
 peared that the action was not 
 brought until 1889 while plaintiff ob- 
 tained title before 1878 during which 
 year defendant without acquiring 
 plaintiff's easements commenced and 
 completed its road. The court founa 
 that plaintiff saw the road from time 
 to time while in process of construc- 
 tion and occasionally rode thereon? 
 that he had subscribed to a fund to 
 prevent its erection, but prior to this 
 action made no protest and took no 
 proceeding to prevent its construc- 
 tion. It was also found that after 
 this action was begun defendant 
 brought proceedings to condemn said 
 easements which were pending at the 
 time of the trial. The court granted 
 an injunction to restrain defendant 
 from operating the road unless it pay 
 plaintiff a certain sum as the depre- 
 ciation- of the value of plaintiff's 
 premises and this injunction was sus- 
 tained on appeal. See, also, Amer- 
 ican Bank Note Co. v. New York El. 
 R. Co., 129 N. Y. 252, 270, 29 N. E. 
 302. 
 
 19. Meigs v. Lister. 23 N. J. Eq. 
 200. 
 
 90
 
 Definition and Nature of Injunctions. § 44 
 
 common in remainder, of property adjoining an alley, of the erec- 
 tion of a building across the alley, and failure to object, do not 
 create an estopppl in favor of the persons erecting the building, 
 who by their own title to adjacent property had information that 
 the alley was appropriated to the use of all the adjacent owners. 20 
 Again, where an ordinance authorizing the erection of a structure 
 in a street was held to be invalid and inoperative it was decided 
 that complainants alleging irreparable injury to their property 
 by the obstruction of light and air by such structure were not 
 deprived of their right to an injunction because they did not object 
 to the passage of the ordinance or make known their objections 
 until the structure was near completion. 21 And it has been de- 
 clared that no laches on the part of taxpayers or others can operate 
 to confer authority upon the officials of a corporation in a case 
 where such officials are wholly without power to act. 22 
 
 § 44. Same subject ; in England. — Though it may not amount 
 to proof of acquiescence delay may disentitle a party to summary 
 interference of the court by interlocutory injunction, whatever 
 his right may prove to be at the final hearing. 23 But the English 
 rule is, that delay in taking proceedings is not material so long 
 as matters remain in stahi quo. 2 * And in other cases it is decided 
 that where a plaintiff seeks an injunction in aid of his legal right, 
 relief will not be refused on the ground of mere delay on his part, 
 unless he is barred by the statute of limitations. 25 
 
 20. Welsh v. Taylor, 2 N. Y. Supp. Western R. Co. v. Oxford, etc., R. 
 815. Co., 3 DeG., M. & G. 363; Ware v. 
 
 21. Townsend Grace & Co. v. Ep- Regents Canal Co., 3 DeG. & J. 230; 
 stein, 93 Md. 537, 49 Atl. 629, 86 Salisbury v. Metropolitan R. Co., 18 
 Am. St. Rep. 441, 52 L. R. A. 409. W. Rep. 484. Where a trifling inter- 
 
 22. Storey v. Murphy, 9 N. D. ference with ancient light has been 
 115, 81 N. W. 23, holding that laches submitted to for six years, the court 
 does not ordinarily prevent the in- will not grant an injunction but leave 
 tervention of a taxpayer to enjoin plaintiff to his rights at law. Gaunt 
 a disbursement of public funds about v. Fynney, L. R. 8 Ch. App. 8. 
 
 to be made without the authority of 24. Rochdale Canal Co. v. King, 2 
 
 law or in defiance of law. Sim. N. S. 78 ; Gale v. Abbott, 8 Jur. 
 
 23. Attorney Gen. v. Sheffield Gas N. S. 987. 
 
 Co., 3 DeG., M. & G. 304; Great 25. Fulwood v. Fulwood, 38 Law 
 
 91
 
 §45 Definition and Nature oi 1n.il notions. 
 
 § 45. Injunctions in foreign countries. — In France, where 
 writs of mandamus and injunction are unknown, the same remedy 
 is obtained by a summary order of the judge termed an order of 
 refere. 26 In the Province of Quebec the writ of injunction may, 
 it seems, serve the purpose of a mandamus, and is governed by the 
 provisions of the Code of Procedure which are applicable to 
 mandamus. 27 In 1876 Mr. Justice Mackay, sitting at Montreal in 
 the Superior Court, said that they were in their infancy in that 
 province in the matter of injunctions, as their Code had no pro- 
 visions made expressly applicable to injunctions, and ho proposed 
 to treat them with such caution, that " rascals like Fisk in the 
 neighboring States " should not be able to get an injunction " upon 
 allegations of information and belief merely." ** In 1878 an act 
 was passed to provide for the issuing of the writ of injunction in 
 the Province of Quebec and to regulate the procedure therefor; 23 
 and probably a party applying for an injunction under that statute 
 must conform to the general rules existing in England and the 
 United States ; but it is likely that the jurisdiction of the Superior 
 Court outlined by that act is narrower than the jurisdiction of our 
 courts. 30 Injunctions in fche nature of the Roman interdicts unde 
 vi, to restore a possession from which one has been forcibly ejected, 
 are said to still exist in Ireland, under the name of possessory 
 bills. 31 
 
 T. R. N. S. 380; cited and followed 31. Story, Eq. Jur. § 870; Eden, 
 
 in Rowland v. Mitchell, 75 Law T. R. Tn junc. p. 334. Injunction aa is 
 
 N. S. 65. sued by courts of equity partake of 
 
 26. Bourgouin v. Montreal, etc., the nature of the decretal interdicts 
 R. Co., 19 L. Can. Jurist, 57; Daffry, of the Roman law as issued by the 
 Lots d' Expropriation, pp. 9, 12, 428; praetor, by which he commanded or 
 Merlin, Quest de droit, vo. Denoncia- prohibited something to be done. 
 tion de Novel Oeuvre, pp. 165, 166, They were of three kinds: prohib- 
 167; see, also, Code de Civile Pro- itory, by which he forbade something 
 cedure de France, §§ 806-811. to be done, as when he forbade force 
 
 27. Bourgouin v. Montreal, etc., against a lawful possessor; restitu- 
 R. Co., 19 L. Can. Jurist, 57. tory,, by which he directed something 
 
 28. Kane v. Montreal Tel. Co., 20 to be restored where one had been 
 L. Can. Jur. 120. deprived of possession by force; and 
 
 29. 41 Vict. c. 14 (Que.). exhibitory, by which he ordered a 
 
 30. Parent v. Shearer (1879), 23 person or thing to be produced. 
 L. Can. Jur. 42. Story, Eq. Jur. 13 ed. §§ 865, 866.
 
 Definition and Nature of Injunctions. 
 
 46 
 
 § 46. Effect of injunctions on statute of limitations. — The 
 time during which a judgment creditor is stayed by an injunction 
 from enforcing a judgment is not a part of the ten years to which 
 the lien of a judgment is limited. 32 And the time during which 
 any person entitled to enforce a judgment is stayed from enforcing 
 it, by an injunction, is not a part of the time limited for issuing 
 an execution on the judgment, or for making an application for 
 leave to issue such an execution. 33 And the staying of an execution 
 in the hands of a sheriff suspends, during its continuance, the 
 running of the statutory term of sixty days within which he is 
 required to return the execution. 34 In Maryland and Mississippi, 
 too, it is held that the question of the statute is suspended while 
 the enforcement of the cause of action is enjoined. 35 And an 
 equivalent rule prevails in Tennessee. 36 But in New York the 
 saving of the rights of parties under the statute of limitations 
 when they are stayed by injunction is held to apply only to cases 
 governed by the statute and has no application to a limitation 
 prescribed by contract. 37 And an injunction staying the com- 
 mencement of an action does not ipso facto operate to suspend the 
 running of the statute or relieve a party from its operation. 38 
 
 32. X. Y. Code Civ. Pro. §§ 406, 
 1255. See Van Gelder v. Van Gelder, 
 26 Hun (X. Y.), 356. 
 
 33. X. Y. Code Civ. Pro. 1382. 
 See Underwood v. Green, 56 X. Y. 
 247. In Minnesota there is a similar 
 statutory provision where execution 
 is stayed by injunction. Wakefield v. 
 Brown, 38 Minn. 361. 
 
 34. Ansonia Brass, etc., Co. v. 
 Conner, 103 X. Y. 502, 9 X. E. 238. 
 See, also, Georgia R. & B. Co. v. 
 Wright, 124 Ga. 596, 53 S. E. 251. 
 
 35. Little v. Price, 1 Md. Ch. 182; 
 Tishimingo Sav. Inst. v. Buchanan, 
 
 60 Miss. 496. The Xew York city 
 charter in prohibiting the bringing 
 of a suit against the city until after 
 30 days from the presentation of 
 claim suspended the running of the 
 Statute of Limitations during that 
 time. Brehm v. Mayor, etc., of X. 
 Y., 104 X. Y. 186, 10 X. E. 158. 
 
 36. Wilhoit v. Castell, 3 Baxter, 
 419. 
 
 37. Wilkinson v. First Xat. Bank, 
 72 X. Y. 499. 
 
 38. Barker v. Millard, 16 Wend. 
 572. 
 
 93
 
 Jurisdiction. 
 
 CHAPTER II. 
 
 Jurisdiction. 
 
 Section 47. Assuming injunctive jurisdiction. 
 
 47a. Same subject — Where no power to enforce. 
 
 47b. Jurisdiction limited by Constitution or statute. 
 
 48. Declining jurisdiction where the Legislature should act. 
 
 49. Equity jurisdiction not extended by combining law and equity. 
 
 50. Injunctive jurisdiction where property rights not threatened. 
 61. Ousting of jurisdiction. 
 
 51a. Same subject — Effect of completion of act sought to be enjoined. 
 61b. Prohibition to prevent erroneous exercise of jurisdiction will not 
 lie. 
 
 52. Objection to jurisdiction, when to be made. 
 
 53. No injunctive jurisdiction where controversy submitted. 
 
 54. Limited injunctive jurisdiction of public officers. 
 
 55. Same subject. 
 
 56. No State jurisdiction of patent infringements. 
 
 57. Peculiar jurisdiction of trusts, waste, etc. 
 
 58. No injunctive jurisdiction of criminal matters. 
 
 59. Same subject. 
 
 60. Same subject — Illegal ordinance or statute. 
 60a. Same subject — Qualification of rule. 
 
 61. Injunctive jurisdiction of courts of last resort. 
 
 62. Same subject. 
 
 63. Of Supreme Court of New York. 
 
 64. Of Superior and City Courts. 
 
 65. Of Circuit Courts. 
 
 66. Of District Courts. 
 66a. Of County Courts. 
 
 67. Of Courts of Common Pleas. 
 
 68. Of Probate Courts — Of Surrogates. 
 68a. Of court commissioners. 
 
 68b. Statutory provisions of a general character. 
 
 69. Conditional and auxiliary jurisdiction. 
 
 70. Jurisdiction in vacation. 
 
 71. Jurisdiction at chambers. 
 
 72. Trial court's jurisdiction pending appeal. 
 
 73. Jurisdiction of the High Court of Justice. 
 
 74. Jurisdiction of Quebec courts — Of British Columbia courts. 
 
 75. Extra-territorial jurisdiction. 
 
 94
 
 Jurisdiction. § 47 
 
 Section 75a. Same subject — Jurisdiction dependent on location of subject 
 matter. 
 
 76. Same subject — Receivers. 
 
 77. Same subject — Exceptions. 
 
 77a. Same subject — Exceptions continued. 
 
 78. Same subject illustrated in Alabama. 
 
 79. Same subject — Interstate comity. 
 
 80. Same subject — English chancery. 
 
 81. Comity of New York chancery. 
 
 82. Jurisdiction of non-resident's personalty. 
 
 83. Non-interference with courts of concurrent jurisdiction. 
 
 84. State courts versus Federal. 
 
 85. Same subject — Court first acquiring jurisdiction. 
 
 86. Federal comity towards State courts. 
 
 87. Federal jurisdiction independent of State laws and practice. 
 
 88. Federal injunction of proceedings in State courts. 
 
 89. Same subject — Where suits not begun in State court. 
 
 90. Federal jurisdiction to enjoin national banks. 
 
 91. Jurisdiction of patent infringements. 
 
 92. Exclusive Federal jurisdiction of equitable maritime cases. 
 
 93. Ancillary jurisdiction of the Federal courts. 
 
 94. Jurisdiction according to value in dispute. 
 
 95. Injunctive jurisdiction of Territorial courts. 
 
 96. Jurisdiction of perpetual injunctions. 
 
 Section 47. Assuming injunctive jurisdiction. — A judge assumes 
 jurisdiction of an injunction and of the suit in which it is granted 
 as soon as, on the presentation to him of the proper pleadings and 
 papers, he signs and delivers the injunction order; 1 but the mere 
 bringing of an action in which relief by injunction is asked for 
 does not confer jurisdiction by injunction until the right to an 
 injunction is at least preliminarily established. 2 A judge has no 
 jurisdiction of an injunction cause in which he is interested and 
 can make no order therein except to transfer it to another circuit 
 where the judge is qualified to try the cause; and if the latter 
 
 1. Daly v. Amberg, 126 N. Y. 490, 2. Metropolitan El. R. Co. v. Man- 
 
 495, 27 N. E. 1038, per O'Brien, J.: hattan R. Co., 11 Daly (N. Y.), 373. 
 
 "Ihe presentation of the summons, In an action where the sole relief 
 
 complaint, affidavit and undertaking sought is injunctive the court ac- 
 
 to the judge conferred on him under quires jurisdiction by commencement 
 
 the statute, jurisdiction to make the of the action even though at that 
 
 order, and it was valid from the mo- time plaintiff has suffered no damage, 
 
 ment he signed and delivered it." Patterson v. More, 14 W. Dig. 561. 
 
 95
 
 §47 
 
 Jurisdiction. 
 
 judge is also disqualified he cannot confer jurisdiction upon the 
 judge of another circuit but must order the papers to be returned 
 to the court from which it was sent. 3 Again, there must be some 
 special ground of jurisdiction to authorize the remedy by injunc- 
 tion; it is not enough that a violation of a naked legal right of 
 property is threatened ; 4 but there must be an allegation of facts 
 showing that the act complained of will cause irreparable injury 
 or multiplicity of suits or that plaintiff has no adequate remedy 
 at law. 5 While a court of competent jurisdiction may enjoin the 
 
 3. Swepson v. Call, 13 Fla. 337. 
 
 4. McHenry v. Jewett, 90 N. Y. 58. 
 
 5. Troy, etc., R. Co. v. Boston, etc., 
 R. Co., 86 N. Y. 107, where it was 
 held that as plaintiff's rights so far 
 as infringed were illegal and the in- 
 jury not shown to be remediless, it 
 must resort to an action at law, and 
 the judgment awarding an injunction 
 was reversed. Danforth, J., said : " I 
 have examined all the cases cited by 
 the learned and zealous counsel for 
 the plaintiff to sustain the judgment. 
 They are as follows: Mew York City 
 v. Mapes, 6 Johns. Ch. 46. The plain- 
 tiff claimeu that it was about to take 
 certain lands for the opening of a 
 street; and although proceedings had 
 been instituted with notice to the de- 
 fendants, they were about to erect 
 upon the land a block of buildings, 
 with a view of defeating the proposed 
 improvement, by adding the value of 
 the buildings to the expense thereof, 
 and prayed an injunction against it. 
 The prayer was denied, because the 
 plaintiff had shown no right or title, 
 and raised no equity which could be 
 a ground for an injunction. In the 
 N. Y. Print. Estab. v. Fitch, 1 Paig, 
 97, the injunction asked for was de- 
 nied, the court recognizing the gen- 
 eral rule laid down in Livingston v. 
 Livingston, 6 Johns. Ch. 497, that 
 
 while an injunction may issue to 
 restrain trespasses, even when there 
 is a legal remedy for the intrusion, 
 there must be something particular 
 in the case to bring the injury under 
 the head of quieting the possession 
 or to make out a case of irreparable 
 mischief, or the value of the inherit- 
 ance mut be put in jeopardy by the 
 continuance of the trespass; " but 
 held the plaintiff's case not within it. 
 It should also be observed that in 
 Livingston v. Livingston, the plain- 
 tiff's rights had been established in 
 an action at law. In Akrill v. Sel- 
 den, 1 Barb. 316, an injunction was 
 denied because it was considered well 
 settled in this State that the court 
 would not interfere to restrain a 
 mere trespass, when the injury is not 
 irreparable, and destructive of the 
 plaintiff's estate, but is susceptible 
 of pecuniary compensation, the court 
 saying, in language applicable in 
 both its branches to the present case, 
 " Unless the injury will be irrepar- 
 able, the court will leave the party 
 to his remedy at law. There is the 
 same reason why the court should 
 not interfere by restoring the party 
 to possession; that is, that he has 
 an adequate remedy at law. Hart v. 
 The Mayor, 3 Paige, 214, is to the 
 same effect. In all these cases the 
 
 96
 
 Jurisdiction. 
 
 §47 
 
 bringing of a multiplicity of unjust and vexatious suits before a 
 justice of the peace when the aggregate amount or any other fact 
 will preclude the right to have all of them consolidated into one 
 suit; 6 yet it is improper for the court to exercise its jurisdiction 
 
 remedy by injunction was denied. In 
 Niagara Falls Bridge Co. v. Great 
 Western R. Co., 39 Barb. 224, it was 
 granted to enforce an agreement, 
 which, as the court said, made rela- 
 tion between the parties of the na- 
 ture of a trust. These cases are fol- 
 lowed by the text writers also cited 
 by the respondent, viz.: Story's Eq. 
 Jur., §§ 925, 929, 930, and Willard, 
 writing on the same subject, p. 381. 
 Each lays down the general doctrine 
 that equity interferes by injunction 
 in order to prevent irreparable mis- 
 chief, or to suppress a multiplicity of 
 suits and vexatious litigations. Other 
 cases are cited to show that eject- 
 ment will lie to recover possession of 
 a street. Carpenter v. Oswego R. Co., 
 24 N. Y. 655; Wager v. Troy, etc., 
 R. Co., 25 N. Y. 526; and Williams 
 v. N. Y. Central R. Co., 16 N. Y. 97, 
 where damages and equitable relief 
 were both sought, and to these may 
 be added the same case under the 
 name of Henderson v. N. Y. Central 
 R. Co., 78 N. Y. 423, where the re- 
 lief sought was given. That eject- 
 ment will lie in such a case might be 
 conceded; but the Williams Case 
 seems to have no application for the 
 facts here are not sufficient to lay 
 the foundation for equitable relief, or 
 to take the case from out the general 
 rule above referred to. They show 
 that interference by injunction is not 
 the fit and appropriate mode of re- 
 dress under the circumstances of the 
 case- Story, Eq. Jur. § 959. And 
 
 although the form of actions and 
 suits and the distinction between ac- 
 tions at law and suits in equity has 
 been abolished, a party to entitle 
 himself to the equitable remedy by 
 injunction • must still make such a 
 case as would while the distinction 
 existed have made an equitable cause 
 of action. This is well settled. N. 
 Y. Life Ins. Co. v. Supervisors, 4 
 Duer, 192; Pumpelly v. Owego, 45 
 How. Pr. 259; Heywood v. Buffalo, 
 14 N. Y. 534; Albany, etc., R. Co. v. 
 Brownell, 24 N. Y. 348. Such a case 
 has not been made here. The com- 
 plaint and proof is of a trespass, but 
 there is neither allegation nor proof 
 of facts showing the injury to be 
 irreparable. There is no allegation 
 showing multiplicity of suits pending 
 or expected and while there is a find- 
 ing by the court that a remedy can 
 only be partially obtained by a great 
 multiplicity of actions at law there 
 is no evidence that any such action 
 has been tried or even brought. This 
 the general rule requires and we find 
 nothing in the case to make it an 
 exception." Judgment reversed and 
 the complaint dismissed. As to the 
 distinction between want of jurisdic- 
 tion and want of equity, see Nat. 
 Park Bank v. Goddard, 131 N. Y. 
 494, 30 N. E. 566. 
 
 6. Galveston R. Co. v. Dowe, 70 
 Tex. 10, 7 S. W. 368. 
 
 As to multiplicity of raits, see 
 chap. XVIII herein. 
 
 97
 
 §§ 47a, 47b Jurisdiction. 
 
 by injunction when the right of consolidation exists so as to give 
 the further right and remedy by appeal. 7 
 
 § 47a. Same subject ; where no power to enforce. — Where the 
 court has no jurisdiction to enforce an injunction it should not be 
 granted. So in the case of a foreign corporation it was held that 
 an injunction relating to acts connected with the internal manage- 
 ment of the corporation at its home office in another State would 
 not be granted as the court would have no power to enforce it if 
 the corporation refused to obey. 8 But in a case in Maryland it is 
 decided that the courts of that State have jurisdiction to enjoin 
 corporations owing their corporate existence in part to that State 
 and exercising their franchises therein, from expending their funds 
 for any other than corporate purposes anywhere. 9 
 
 § 47b. Jurisdiction limited by constitution or statute. — A 
 court or judge in granting an injunction is limited in juris- 
 diction by the terms of the constitution or statute conferring the 
 power. 10 A court of equity cannot draw to its general jurisdiction 
 a question which has been expressly remitted by statute to another 
 competent tribunal, unless under very exceptional circumstances. 11 
 So in New York a court of equity has no inherent absolute power 
 to grant interlocutory injunctions and authority for power to grant 
 
 7. Gulf C. & S. F. Ry. Co. v. any action under the agreement in 
 Bacon, 3 Tex. Civ. A. 55, 21 S. W. question obstructed the statutory 
 783. remedy and drew to itself a jurisdic- 
 
 8. Taylor v. Mutual Reserve Fund tion which the statute had conferred 
 L. A., 97 Va. 60, 33 S. E. 385, 45 on the bishop and the Supreme Court, 
 L. R. A. 621. an d therefore the temporary injunc- 
 
 9. State v. Northern Cent. Ry. Co., tion was dissolved. The Supreme 
 18 Md. 193. Court of the United States sometimes 
 
 10. Jones v. City of Little Rock, exercises the right, ex proprio motu, 
 25 Ark. 284; Smith v. Ellis, 29 Md. of preventing matters of purely legal 
 422. See Cooper v. City of Mineral cognizance from being drawn into 
 Point, 34 Wis. 181. chancery jurisdiction. Lewis v. 
 
 11. Thus in MacLaury v. Hart, 121 Cocks, 23 Wall. (U. S.) 466, 23 L. 
 N. Y. 636, the Court of Appeals held Ed. 70; Oelrichs v. Spain, 15 Wall, 
 that tue Common Pleas by enjoining ( U. S.) 211, 21 L. Ed. 43. 
 
 98
 
 Jurisdiction. § 47b 
 
 them must be found in the Code of Civil Procedure. 12 And in an 
 earlier case in New York it is declared that an injunction granted 
 by order as provided for in the Code can only be awarded in the 
 cases and in the manner specifically prescribed, and is impliedly 
 forbidden in any others. 13 And where by statute or Code power 
 is conferred upon a court of equity, in proper cases, to issue man- 
 datory injunctions, when the exercise of such power exceeds the 
 limit, it is not a mere error, but void as without jurisdiction. 1 * 
 And it has been decided that the provision of the New York Code 
 of Civil Procedure, § 606, giving the county judge power to grant 
 an injunction " except where it is otherwise specially prescribed 
 by law " shows a design to limit the power of this court to grant 
 injunctions within a narrower compass than other injunctions are 
 granted and to limit the power to the court itself or an actual 
 justice thereof, as distinguished from an officer who might, under 
 other provisions of law, perform the duties of a justice of the 
 Supreme Court. 15 So legislation conferring power upon a judge 
 of a certain court to grant an injunction is held not to bestow like 
 power upon the court. 16 And in Iowa it is decided in an early case 
 that the Supreme Court is not authorized to grant injunction upon 
 original petition but that each judge of that court in his separate 
 capacity is empowered to grant injunctions. 17 And where the 
 
 12. Bachman v. Harrington, 184 See Wooley v. Georgia L. & T. Co., 
 N. Y. 458, 77 N. E. 657, rev'g 108 102 Ga. 591, 29 S. E. 119, holding 
 App. Div. 357, and citing Fellows v. that want of jurisdiction may be 
 Haermans, 13 Abb. Prac. (N. S.) 9; shown by way of demurrer. 
 
 Spears v. Matthews, 66 N. Y. 128; 15. People v. Windholz, 68 App. 
 
 Erie Ry. Co. v. Ramsey, 45 N. Y. Div. (N. Y.) 552. 74 N. Y. Supp. 
 
 637; People v. Randall, 73 N. Y. 241, holding that the injunction pro- 
 
 416; Gardner v. Gardner, 87 N. Y. vided for by § 10 of the Agricultural 
 
 18; Jackson v. Bunnell, 113 N. Y. Law (Laws of 1893, ch. 338), was 
 
 216, 21 N. E. 79; People v. Van within the exception of § 606, Code 
 
 Buren, 136 N. Y. 252, 32 N. E. 775. Civ. Proc. 
 
 13. Jackson v. Bunnell, 113 N. Y. 16. L'ummings v. Des Moines, W. 
 216, 219, 21 N. E. 216, citing Fellows & S. R. R. Co., 36 Iowa 173. See 
 v. Heermans, 13 Abb. Pr. (N. S.) 9. also Hall v. O'Brien, 5 111. 410; Reed 
 
 14. Bachman v. Harrington, 184 v. Murphy, 2 G. Greene (Iowa) 568. 
 N. Y. 458, 77 N. E. 657, rev'g 108 17. Reed v. Murphy, 2 G. Green* 
 App. Div. 357. (Iowa) 568. 
 
 99
 
 §48 
 
 Jurisdiction. 
 
 power is plainly conferred upon the court sitting in banc it can 
 only be so exercised and one judge of the court cannot grant an 
 injunction. 18 Again, the power of a court commissioner to grant 
 an injunction must be exercised within the limits of the provision 
 conferring such power. 19 
 
 § 48. Declining jurisdiction where the Legislature should act. 
 — Courts of equity will decline to exercise jurisdiction by injunc- 
 tion where the questions involved are wholly new and are so broad 
 and deep and difficult that they cannot be measured by any existing 
 modes of equitable relief. Thus though the owner of the surface 
 of land who has granted to another the coal under his land has 
 the legal right to reach in some way the strata underlying the 
 coal, yet the regulation of such access to the underlying strata 
 involves too many questions affecting rights of property and novel 
 | rights of way to be settled by injunction. The matter is legis- 
 lative rather than judicial and is to be treated as affecting the 
 public as well as individuals. 20 
 
 18. Riley v. Ellmaker, 6 Whart. 
 (Pa.) 545. 
 
 19. See Reed v. Jones, 6 Wis. 680. 
 
 20. Chartiers Black Rock Coal Co. 
 v. Mellon, 152 Pa. St. 286, 25 Atl. 
 597, per Paxson, C. J. : " This is a 
 new question and one that is full of 
 difficulty. The discovery of new 
 sources of wealth, and the springing 
 up of new industries which were 
 never dreamed of half a century ago 
 sometimes present questions to which 
 it is difficult to apply the law, as it 
 has heretofore existed. . . Mining 
 rights are peculiar and exist from 
 necessity, and the necessity must be 
 recognized, and the rights of mine 
 and land owners adjusted and pro- 
 tected accordingly. We have an il- 
 lustration of this in the Pennsylva- 
 nia Coal Co. v. Sanderson, 113 Pa. 
 St. 126, 6 Atl. 453. The mining of 
 
 coal and other minerals is constantly 
 developing new questions. Formerly 
 a man who owned a surface, owned 
 it to the center of the earth. Now 
 the surface of the land may be sepa- 
 rated from the different strata un- 
 derneath it, and there may be as 
 many different owners as there are 
 strata. Lillibridge v. Coal Company, 
 143 Pa. St. 293, 22 Atl. 1035. . . 
 While the right of the surface owner 
 to reach in some way his underlying 
 strata is conceded, it involves too 
 many questions affecting the rights 
 of property and of injury to the un- 
 derlying strata to be settled by the 
 judiciary. It is a legislative rather 
 than a judicial question. . . All this 
 requires an amount of legal machin- 
 ery that a court of equity cannot 
 supply, however wide its jurisdiction 
 and plastic its process. We find our- 
 
 100
 
 Jurisdiction. §§ 49, 50 
 
 § 49. Equity jurisdiction not extended by combining law and 
 equity — Though in the State of Xew York the distinction between 
 actions at law and suits in equity has been abolished by the Code, 
 a party to entitle himself to the equitable remedy by injunction 
 must still make such a case as would, while the distinction existed, 
 have made an equitable cause of action. 21 And the same rule has 
 been applied to the Georgia Superior Court since law and equity 
 were combined in that court. 22 And provisions of general and codi- 
 fying statutes in relation to injunctions are to be regarded as 
 declaratory of the existing law of injunctions unless the intention 
 thereby to change such law clearly appears. Thus it is held that 
 section 291 of the Indiana statute of 1852, which provides that 
 " where a proper case is made, the nuisance may be enjoined and 
 abated and damages recovered therefor," did not create new rights 
 nor prescribe a new remedy and that such remedy by injunction 
 existed in Indiana long before the Code of 1852 was enacted. 23 
 
 § 50. Injunctive jurisdiction where property rights not threat- 
 ened. — It is a general rule that the wrongful acts for the preven- 
 tion of which injunctions will be granted are those which affect 
 
 selves upon a new road without chart it was held that the equitable juris- 
 
 or compass to guide us, and we pro- diction of the New York courts is 
 
 pose to move slowly. The appellants not extended by their union of legal 
 
 have appealed to us as chancellors, and equitable powers and that when 
 
 and even if we concede their right to a perpetual injunction is demanded 
 
 be clear, it does not follow that as by the complaint the right of the 
 
 chancellors we will enforce it. The plaintiff to such relief must still be 
 
 effect of doing so would be to leave determined by the rules of law which 
 
 the owner of the surface at the ab- were in force when the Code was 
 
 solute mercy of the owner of the coal. enacted. See, also, Pumpelly v. 
 
 It is true he can buy the coal of Owego. 45 How. Pr. (N. Y.) 259, 
 
 the latter but only on terms dictated 260; Heywood v. Buffalo, 14 N. Y. 
 
 by the owner. To grant the injunc- 534, 540; Albany, etc., R. Co. v. 
 
 tion as claimed by the appellant Brownell, 24 N. Y. 348. 
 
 would be to destroy the estate of the 22. Broomhead v. Grant, 83 Ga. 
 
 surface owner in the minerals below 451, 10 S. E. 116. 
 
 the coal." 23. Indianapolis Water Co. v. 
 
 21. Thus in N. Y. Life Ins. Co. v. American Strawboard Co., 53 Fed. 
 
 Supervisors, 4 Duer (N. Y.), 192, 970. 
 
 101
 
 8 50 
 
 Jurisdiction. 
 
 property or its healthful and beneficial use, 24 and that the injury 
 to a man's reputation will not be averted by injunction if wholly 
 disconnected with any property right. 25 The application of this 
 rule would preclude the granting of an injunction to restrain a 
 libel. 26 But while this rule is in its general sense true and ordi- 
 narily a mere abstract right will not be protected by injunction, 27 
 as, for instance, the right of a citizen to have a public nuisance 
 abated where he is not specially injured by it; 28 and the operation 
 of a doubtful law will not be enjoined until it is put in issue in 
 some actual case; 29 yet the jurisdiction of equity to grant an in- 
 junction is not entirely confined to cases in which damages could 
 
 24. Mead v. Stirling, 62 Conn. 586, 
 596, 27 Atl. 591, 23 L. R. A. 227. 
 
 25. World's Columbian Exposition 
 v. United States, 56 Fed. 654, 667; 
 Mead v. Stirling. 62 Conn. 586, 27 
 Atl. 591, 23 L. R. A. 227. 
 
 26. United States. — Palmer v. 
 Travers, 20 Fed. 501. 
 
 Georgia. — Singer Mfg. Co. v. Do- 
 mestic Sew. Mach. Co., 40 Ga. 70, 
 15 Am. Rep. 674. 
 
 Louisiana. — State v. Judge of Civil 
 District Court, 34 La. Ann. 741. 
 
 Missouri. — Life Ass'n of America 
 V. Boogher, 3 Mo. App. 173. 
 
 Neio York. — Brandretb v. Lance, 8 
 Paige 24, 34 Ann. Dec. 368; New 
 York Juvenile Guardian Soc. v. 
 Roosevelt, 7 Daly, 188. 
 
 Ohio.— Dopp v. Doll, 9 Ohio Dec. 
 428; Riggs v. Cincinnati Waiters' 
 Alliance, 5 Ohio N. P. 386. 
 
 But see Bell v. Singer Mfg. Co., 65 
 Ga. 452. 
 
 27. A social and fraternal 
 right will not be protected. Clark v. 
 Wallace. 20 Ky. Law Rep. 154, 45 S, 
 W. 504. See Wellenvors v. Grand 
 Lodge 20 Ky. Law Rep. 713, 45 S. W. 
 360, 40 L. R. A. 488. 
 
 Offending religious feelings. 
 An injunction will not be issued to 
 
 prevent a company from offending 
 the religious feelings of church 
 members by running cars on Sun- 
 day. Sparhawk v. Union, etc., R. 
 Co., 54 Pa. St. 401. 
 
 An injury to a navigable 
 stream will not be enjoined at the 
 instance of one who is not engaged 
 in navigating it. Spooner v. Mc- 
 Connell, 1 McLean, 337. 
 
 The harboring of a married 
 woman by her father, or even a 
 stranger, from humane motives 
 merely, does not entitle the husband 
 to an injunction. Campbell v. Car- 
 ter, 3 Daly, 165. 
 
 28. Adler v. Metropolitan El. R. 
 Co., 138 N. Y. 173, 33 N. E. 935. And 
 see § 13, ante. 
 
 As to nuisances, see chap. 
 XXXVIII herein. 
 
 29. The threatened putting in 
 force of the stock law in a cer- 
 tain militia district, in pursuance 
 of a declared result of a local elec- 
 tion, will not be enjoined on the 
 ground that such election is void in 
 the absence of any statutory provi- 
 sion for attacking the validity of the 
 election, until some actual case arises 
 putting its validity in issue. Nelms 
 v. Pinson, 92 Ga. 441, 17 S. E. 350. 
 
 102
 
 Jurisdiction. 
 
 §50 
 
 be recovered at law. The Court of Chancery always had jurisdic- 
 tion to prevent what that court considered a wrong independent of 
 any question as to the right at law. 30 So a stranger may be 
 enjoined from invading the right of privacy which attaches to a 
 person while living and to his memory when dead; for example 
 may be enjoined from erecting a statue to a deceased person against 
 the wishes of his relatives, though in such a case the relatives could 
 recover no damages. 31 
 
 30. Schuyler v. Curtis, 27 Abb. N. 
 C. 387, 40 N. Y. St. Rep. 289, 
 aff'd 64 Hun, 594. This was an ac- 
 tion to restrain a certain association 
 from placing a life statue of Mrs. 
 Schuyler, after her death, on public 
 exhibition at the Columbian Exposi- 
 tion at Chicago in 1893. In sustain- 
 ing the injunction at General term, 
 Van Brunt, P. J., said: "The fact 
 that the plaintiff has suffered no 
 pecuniary damage is no answer to 
 the application because one of the 
 most important departments in the 
 jurisdiction of the courts of equity 
 is the prevention of wrongs which 
 would be otherwise irreparable be- 
 cause courts of law cannot afford any 
 remedy in damages." The pretension 
 that an injunction can be granted 
 only in a case where damages can be 
 recovered in an action at law was 
 thus disposed of in Pollard v. Photo- 
 graphic Co., 40 Ch. D. 345: "The 
 right to grant an injunction does not 
 depend in any way on the existence 
 of property as alleged ; nor is it 
 worth while to consider carefully the 
 grounds upon which the old Court of 
 Chancery used to interfere. But it 
 is quite clear that independently of 
 any question as to the right at law. 
 the Court of Chancery always had 
 an original and independent jurisdic- 
 tion to prevent what that court con- 
 sidered and treated as a wrong 
 
 whether arising from a violation of 
 an unquestionable right or from 
 breach of confidence or contract as 
 pointed out by Lord Cottenham in 
 Prince Albert v. Strange, 1 McN. & 
 G. 25." The failure or inability to 
 prove pecuniary damages does not 
 take away from a court of equity 
 the power to redress the wrong and 
 prevent a repetition of the injury. 
 As said in McKeon v. See, 51 N. Y. 
 300, affg 4 Robt. 449: "The sup- 
 pression of oppressive and intermin- 
 able litigation and the prevention of 
 multiplicity of suits equally with 
 protection against irreparable mis- 
 chief, form grounds of equitable in- 
 terference." Followed in Pach v. 
 Geoff roy, 19 N. Y. Supp. 583. 
 
 31. Schuyler v. Curtis. 64 Hun 
 (N. Y.), 594, 19 N. Y. Supp. 264. 
 where Van Brunt, J., said: "It is 
 further urged that the plaintiff has 
 no standing in court and that the 
 fancied injury complained of, if any 
 such injury can in any way be dis 
 covered, is certainly not such an in- 
 jury as the court will grant an in- 
 junction to prevent, because it is not 
 an injury to his person, to his estate, 
 or to his good name, and is not a 
 violation of his privacy or seclusion, 
 and because the plaintiff stands in 
 the same relation to the defendants 
 and to their project as does all the 
 rest of the world and in no other 
 
 103
 
 §51 
 
 Jurisdiction. 
 
 § 51. Ousting of jurisdiction. — If at the filing of a bill for 
 an injunction the court has jurisdiction thereof such jurisdiction 
 •will not be ousted by the fact that pending the suit the right to a 
 permanent injunction is lost, as for example where a patent which 
 was to be protected expires pendente lite. 22 The refusal of a court 
 or judge to grant an injunction docs not exclude another co-or- 
 dinate court or judge from jurisdiction but in such a case the 
 granting of the injunction by a second judge is a delicate matter 
 which sometimes leads to undignified retaliation. 33 Where a court 
 
 relation. The result of this claim 
 is that when a person is dead there 
 is no power in any court to protect 
 his memory, no matter how outrage- 
 ously it may be insulted. The feel- 
 ings of relatives and friends may be 
 outraged, and the memory of de- 
 ceased degraded with impunity by 
 any person who may desire thus to 
 affect the living. It seems to us that 
 such a proposition carries its own 
 refutation with its statement. It 
 cannot be that by death all protec- 
 tion to the reputation of the dead 
 and the feelings of the living, in con- 
 nection with the dead, has been abso- 
 lutely lost. The memory of the de- 
 ceased belongs to the surviving rela- 
 tives and friends, and such relatives 
 have a right to see that that which 
 would not have been permitted in re- 
 spect to the deceased when living 
 shall not be done with impunity when 
 the subject has become incapable of 
 protecting himself. It is undoubt- 
 edly true that cases of the character 
 now before the court are not to be 
 found in the books. But it is prob- 
 ably the first time in the history of 
 the world that the audacious claim 
 which is here presented has ever been 
 advanced. If it had, we have no 
 doubt the books would have contained 
 a record in connection with the 
 
 same." See, also, an article entitled 
 "The Right to Privacy" in The 
 Hartford Law Review of Dec, 1800, 
 Vol. 4, No. 5; also an article on 
 " The Rights of the Citizen to his 
 Reputation " in Scribner's Magazine, 
 July, 1S90. 
 
 32. Brooks v. Miller. 28 Fed. 615; 
 but the bill should not be sustained 
 if the bill was filed so early before 
 the expiration of the patent that ac- 
 cording to the usual practice of the 
 court no injunction could be obtained 
 in time to be of any service. 
 
 33. In Welch v. Byrns, 38 111. 20, 
 Starr. J., of the 20th Circuit in 
 Chambers, refused an injunction on 
 February 1, 1805, and endorsed his 
 refusal on the bill. On February 8, 
 Sheldon, J., of the 14th Circuit, 
 granted the injunction in open court 
 conditioned on plaintiff giving a bond. 
 On February 9, Starr, J., on his own 
 motion and without the knowledge 
 of any of the parties vacated the in- 
 junction. On February 10, he pro- 
 ceeded to draw up and file in the 
 clerk's office " Orders by the Court 
 of Chancery," one of which pre- 
 vented the court clerk from issuing 
 the writ and the other was in part 
 in these words : " It is therefore or- 
 dered that any order for an injunc- 
 tion by any judge not having appel- 
 
 104
 
 Jurisdiction. 
 
 §51a 
 
 has assumed jurisdiction over the subject matter of controversy 
 by issuing an injunction a court of concurrent jurisdiction ought 
 not to interfere by means of a second injunction. 34 Again, a 
 statute is not to be construed as depriving a court of its injunctive 
 jurisdiction in the absence of plain terms to that effect. 35 
 
 § 51a. Same subject; effect of completion of act during 
 pendency of action.— The jurisdiction of a court of equity to 
 afford relief is not affected by the fact that during the pendency of 
 the proceedings the act which it was sought to enjoin has been done 
 but in such a case the court may require a restoration by the 
 defendant to the condition which existed at the time jurisdiction 
 
 late jurisdiction over this court, upon 
 any bill which has been passed upon 
 by this court and injunction refused, 
 being, in effect, a reversal of the de- 
 cision of this court, and an unwar- 
 rantable assumption of power, shall 
 be held and treated as void and of no 
 effect." On refusal of the clerk to 
 issue the injunction as required by 
 the order of Sheldon, J., he was 
 compelled to do so by mandamus and 
 the Supreme Court said: "Nor can 
 the order of Judge Starr vacating 
 the order of Judge Sheldon avail the 
 clerk as an excuse for disobeying that 
 order. The order was binding and 
 effectual and could be got rid of only 
 in the mode pointed out in the stat- 
 ute," that is by motion " at any time 
 in term." The court also said : " It 
 may be a matter of some delicacy for 
 one circuit judge to overrule another 
 on an application for a writ of in- 
 junction, but that he has the power 
 so to do, by granting the writ which 
 another judge has refused cannot we 
 think be denied, when the broad terms 
 of the statute are considered." 
 
 34. Winn v. Albert, 2 Md. Ch. 42, 
 54, where the court said : " Great 
 
 caution should certainly be observed 
 lest the powers of these co-ordinate 
 courts should be brought into col- 
 lision as it is apparent the evils of 
 such collision would be of serious 
 magnitude; and I am persuaded, the 
 safer if not the only course is that 
 each court shall never suffer itself to 
 interfere in a cause, or in regard to 
 a subject matter over which another 
 has exercised its jurisdiction. And 
 such 1 understand to be the doctrine 
 of the late chancellor, which was 
 sanctioned by the Court of Appeals 
 in the case of Brown v. Wallace, 4 
 Gill & J. 479. The Court of Appeal 
 in that case says: " 'Tis true both 
 courts in ordinary cases have author- 
 ity to grant injunctions, but where a 
 suit has been commenced in one, it 
 ought to be entitled to retain it." 
 
 35. Where a statute directs a de- 
 cision on a motion to set aside an 
 injunction to be rendered within 20 
 days after submission, but contains 
 no provision depriving the court of 
 jurisdiction in case the decision is 
 not rendered within that time, the 
 provision is merely directory. Wat- 
 son v. Coe, 5 N. Y. Supp. 614. 
 
 105
 
 §'§ 51b, 52 Jurisdiction. 
 
 was acquired even though no injunction pendente lite was issued." 
 So a party filing a bill for an injunction may fail to procure a 
 preliminary injunction, but any act after the court has acquired 
 jurisdiction will be subject to the power of the court to compel 
 restoration of the status or to enforce such other relief as may be 
 proper. 37 
 
 § 51b. Prohibition to prevent erroneous exercise of jurisdic- 
 tion will not lie. — Where the court has jurisdiction of the subject 
 matter and of the parties in a proceeding for an injunction, pro- 
 hibition will not lie to prevent an erroneous exercise of that juris- 
 diction. Thus it was held that prohibition would not lie against 
 the threatened enforcement of a temporary injunction issued in 
 a suit against a corporation, enjoining the relators from acting as 
 stockholders in a corporation during the pendency of the action, 
 where the relators intervened in that suit, moved to dissolve the 
 injunction, and appealed from the decision. 38 
 
 § 52. Objection to jurisdiction, when to be made. — The want 
 of jurisdiction if relied on by defendant should be alleged by 
 plea or answer, and the objection is too late at the hearing in the 
 appellate court unless the want of jurisdiction is apparent on the 
 face of the bill, 39 and where the objection of want of jurisdiction 
 in equity because of adequate remedy at law is not made until the 
 hearing on appeal and the subject matter belongs to the class over 
 which a court of equity has jurisdiction, the Federal Supreme 
 Court does not feel bound to entertain the objection even though 
 if taken at the proper time it might have been worthy of atten- 
 tion. 40 But that court may for its own protection prevent matters 
 purely cognizable at law from being drawn into chancery at the 
 pleasure of the parties and where the want of jurisdiction is quite 
 
 36. Holden v. Alton, 179 HI. 318, 38. State v. Kennan, 35 Wash. 52, 
 53 N. E. 556. 76 Pac. 516. 
 
 37. New Haven Clock Co. v. Koch- 39. VVylie v. Cox, 15 How. Pr. 
 ersperger, 175 111. 383, 51 N. E. 629. 415, 420. 
 
 Per Cartwright, J. 40. Rynes v. Dumont, 130 U. S. 
 
 354, 9 S. Ct. 486, 32 L. Ed. 934. 
 
 106
 
 Jurisdiction. § 52 
 
 apparent it is the duty of the court to recognize it though not 
 raised by the pleadings nor suggested by counsel. 41 A Code pro- 
 vision that an action to determine and quiet the title to real 
 property may be brought by any one having or claiming an interest 
 therein, whether in or out of possession of the same against one 
 not in possession though construed by the courts of the State in 
 which it is in force as authorizing a suit in equity to recover pos- 
 session of real estate from the occupant in possession of it. does 
 not enlarge the equity jurisdiction of Federal courts in that State 
 so as to give them jurisdiction over a suit of equity in a case where 
 an adequate remedy may be had at law j 42 though such statute does 
 enlarge the equity jurisdiction of the State courts. 43 In an equity 
 action, the defendant in order to insist that plaintiff had an 
 adequate remedy at law, must set it up in his answer; 44 or must 
 take the objection by demurrer if it appears on the face of the bill. 45 
 Where the complaint in an action for injunctive relief alleged that 
 the plaintiff had no adequate remedy at law, whereby multiplicity 
 of suits would result, and this was admitted by the answer, it was 
 held that the objection that such a remedy did exist could not be 
 raised at the trial. 46 And the objection that the facts stated in the 
 complaint are not sufficient to confer jurisdiction to grant an 
 injunction cannot be raised for the first time upon an appeal, but 
 
 41. Lewis v. Cocks, 23 Wall. 466, Pr. 235; Grandin v. LeRoy. 2 Paige, 
 23 L. Ed. 70; Oelrichs v. Spain, 15 509; Lelloy v. Piatt, 4 Paige, 77. 
 Wall. 211, 21 L. Ed. 43. 45. Consolidated Roller Mill Co. v. 
 
 42. Whitehead v. Shattuck, 138 U. Coombs, 39 Fed. 25. In Wisconsin 
 S. 146, 11 S. Ct. 276, 34 L. Ed. 873. the objection may be made by de- 
 distinguishing Holland v. Challen, 110 murrer ore tenus. Stein v. Benedict, 
 U. S. 15, 3 S. Ct. 495, 28 L. Ed. 52, 83 Wis. 603, 53 N. W. 891, 895; Trus- 
 and Reynolds v. National Bank, 112 tees v. Kilbourn, 74 Wis. 452, 43 N. 
 U. S. 405, 5 S. Ct. 213, 28 L. Ed. W. 168; Avery v. Ryan, 74 Wis. 599, 
 733. 43 X. W. 317; but not after answer 
 
 43. Whitehead v. Shattuck. 138 U. to the merits. Sherry v. Smith, 72 
 S. 146, 152, 11 S. Ct. 276, 34 L. Ed. Wis. 339, 39 N. W. 556; Turpin v. 
 
 Dennis, 139 111. 274, 28 N. E. 1065; 
 
 44. Ostrander v. Weber, 114 N. Y. Magee v. Magee, 51 111. 500; Dodge 
 95, 21 N. E. 112; Cox v. James, v. Wright, 48 111. 384. 
 
 45 N. Y. 557; Truscott v. King, 46. Town of Mentz v. Cook, 108 
 
 6 N. Y. 147; Green v. Milbank. 3 Abb. N. Y. 504, 15 N. E. 541 
 N. C. 138; Pam v. Vilmer. 54 How. 
 
 107
 
 ^g 53 ; 54 .1 I KISI.KTION. 
 
 should be raised by answer and presented at the trial. 47 Parties 
 havino- recognized the injunction as valid are estopped from attack- 
 ing the jurisdiction of the court or judge who granted it. 48 
 
 § 53. No injunctive jurisdiction where controversy submitted. 
 — In a controversy submitted upon admitted facts under the New 
 York Code an injunction is expressly prohibited, 49 though the 
 question submitted is whether or not the plaintiff is entitled to an 
 injunction. 50 In a controversy so submitted, where an injunction 
 is sought to restrain defendant from continuing business in an 
 alleged unlawful manner, and to recover a penalty for a violation 
 of law, the proceeding as to the injunction will be dismissed, 
 but retained for disposition as to the penalty. 51 And a case so 
 submitted must be dismissed where the only question involved is 
 whether the beneficiaries under a certificate of membership in a 
 mutual life insurance association shall be paid out of its reserve 
 fund or out of an assessment to be levied on all the holders of cer- 
 tificates, including that represented by the beneficiaries, as the only 
 effective relief in their favor would be an injunction against levy- 
 ing the assessment. 52 
 
 § 54. Limited injunctive jurisdiction over public officers. — 
 The general rule is that the courts cannot interpose by injunction 
 or mandamus to limit or direct the discretion and action of depart- 
 mental officers in respect of pending matters, within their juris- 
 
 47. Cunningham v. Fitzgerald, 51 ment. Freeland v. Stillman 49 Kan. 
 N. Y. St. R. 840. 197, 30 Pac. 235. 
 
 48. In a suit for an injunction, 49. Code Civ. Pro. § 1281. See 
 defendants cannot object that the also Cunard Steamship Co. v. Voor- 
 judge of a county other than that in his, 104 N. Y. 525, 11 N. E. 49. 
 which the suit is brought, and to 50. Cunard Steamship Co. v. Voor- 
 whom application was made, in the his, 104 N. Y. 525, 11 N. E. 49. 
 absence of the latter judge, for a 51. People v. Binghamton Trust 
 temporary restraining order, had no Co., 20 N. Y. Supp. 179, 47 N. Y. St. 
 power to grant the order, where they R. 570. 
 
 have recognized the order as valid, 52. Patterson v. Mutual Life 
 
 and agreed that it should remain in Ass'n, 11 N. Y. Supp. 636, 33 N. Y. 
 force until the final hearing and judg- St. R. 703, 19 Civ. Pro. 262. 
 
 108
 
 Jurisdiction. 
 
 54 
 
 diction and control. 53 As the executive department of the 
 government is not subject to the jurisdiction of the judicial 
 department the President cannot be enjoined from enforcing an 
 Act of Congress on the ground of its being unconstitutional. 54 
 And it has been decided that the action of the Secretary of the 
 Interior directing the Commissioner of the Land Office to cancel 
 an entry of land is within the exclusive control of the department 
 and can not be interfered with by injunction while the matter is 
 pending. 55 So the United States Circuit Court has no power to 
 stay the Land Department in the discharge of a duty which is not 
 ministerial but involves the exercise of judgment and discretion. 
 The remedy for an infringement of the rights of the plaintiff is 
 
 53. A surveyor, acting under spe- 
 cial instructions based upon an 
 opinion of the Secretary of the In- 
 terior, surveyed an old Spanish grant, 
 and reported the same to the Sur- 
 veyor General. Protests were filed 
 against the survey; but the Surveyor 
 General approved the same, and for- 
 warded it, together with the protests 
 and evidence, to the Commissioner of 
 the General Land Office. The latter 
 accepted the survey in part, but re- 
 served the remainder for further con- 
 sideration, meantime directing the 
 Surveyor General to withhold the fil- 
 ing of the triplicate plats from the 
 local land office. The matter was 
 then referred to the Secretary of the 
 Interior, who held that the survey 
 did not comply with the decision of 
 his predecessor, and directed a new 
 survey. Held, that the action of the 
 Surveyor General and the commis- 
 sioner did not exhaust the authority 
 of the land department, but that the 
 matter was still lawfully pending 
 therein, and the courts, therefore, 
 had no authority to enjoin the ob- 
 literation of the old survey or the 
 making of the new one. City of New 
 Orleans v. Paine, 49 Fed. 12, abirmed, 
 
 (Cir. Ct. App.), 51 Fed. 833, 2 C. 
 C. A. 516, aff'd 147 U. S. 261, 37 
 L. Ed. 162, 13 S. Ct. 303. 
 
 Where defendant entered as a 
 homestead certain land in the pos- 
 session of the widow and children of 
 a decedent, who had filed his declara- 
 tory statement under the pre-emption 
 laws, and paid the register's and re- 
 ceiver's fees, and the question of title 
 is pending before the Secretary of the 
 Interior, a contest to determine title 
 is not within the jurisdiction of the 
 courts, but they will grant a tem- 
 porary injunction, restraining the dis- 
 turbance of the person so far in right- 
 ful possession. Wood v. Murray, 85 
 Iowa, 505, 52 N. W. 356; Andrews v. 
 Murray, 85 Iowa, 736, 52 N. W. 357. 
 
 See further on this subject, chap. 
 XLVIII, herein. 
 
 54. Mississippi v. Johnson, 4 Wall. 
 (U. S.) 495, 18 L. Ed. 437; Georgia 
 v. Stanton. 6 Wall. (U. S.) 50, 18 L. 
 Ed. 721. 
 
 55. Gaines v. Thompson, 7 Wall. 
 (U. S.) 347, 352 19 L. Ed. 62; 
 Fourniquet v. PerKins, 16 How. (U. 
 S.) 82, 14 L. Ed. 854. See, also. 
 Stotesbury v. U. S., 146 U. S. 196, 
 13 S. Ct. 1, 36 L. Ed. 940. 
 
 109
 
 §54 
 
 JuBISDICTION. 
 
 at law after the conclusion of the administrative action on the 
 part of the government. 5 * But if a head of a department of the 
 government has no power or authority to do a certain act he may 
 be enjoined from doing it, 57 as he would be subject to a mandamus 
 if he refused to do an act which the law plainly required him to 
 do. 68 And State officers may be enjoined in the Federal courts 
 from obeying State laws which have been declared unconstitu- 
 tional. 69 So it has been decided that a district attorney may be 
 enjoined from commencing a criminal prosecution under a statute 
 which is invalid. 60 But in a case in New York it is decided that 
 the courts of that State have no power to restrain by injunction 
 the acts of officers of the State who are proceeding under authority 
 
 56. Kirwan v. Murphy, 189 U. S. 
 35, 54, 23 Sup. Ct. 599, 47 L. Ed. 
 698, holding that the land depart- 
 ment charged with the duty of sur- 
 veying the public domain must pri- 
 marily determine what are public 
 lands subject to survey and disposal 
 under the public land laws, and that 
 its exercise of jurisdiction cannot be 
 questioned by the courts before it has 
 taken final action. 
 
 57. Noble v. Union River Logging 
 Railroad, 147 U. S. 165, 13S.Ct.271, 
 37 L. Ed. 123. In Attorney General v. 
 Eau Claire, 37 Wis. 400. an injunction 
 was granted to restrain the common 
 council and city clerk from executing 
 an unconstitutional law for the ob- 
 struction of a navigable river. 
 
 58. Board of Liquidation v. Mc- 
 Comb, 92 U. S. 531, 541, 23 L. Ed. 623, 
 where Bradley, J., said: "It has been 
 well settled that when a plain official 
 duty requiring no exercise of discre- 
 tion is to be performed, and perform- 
 ance is refused, any person who will 
 sustain personal injury by such refusal 
 may have a mandamus to compel its 
 performance; and when such duty is 
 threatened to be violated by some 
 
 positive official act, any person who 
 will sustain personal injury thereby, 
 for which adequate compensation can- 
 not be had at law, may have an in- 
 junction to prevent it. Jn such cases 
 the writs of mandamus and injunc- 
 tion are somewhat correlative to each 
 other. In either case if the officer 
 plead the authority of an unconstitu- 
 tional law for the nonperformance or 
 violation of his duty, it will not pre 
 vent the issuing of the writ. Osborn 
 v. U. S. Bank 9 Wheat. 859, 6 L. Ed. 
 230; Davis v. Gray, 16 Wall. 220, 21 
 L. Ed. 447." 
 
 59. Claybrook v. City of Owens- 
 boro, 16 Fed. 297, 304, citing Osborn 
 v. Bank of U. S., 9 Wheat. (U. S.) 
 738, 6 L. Ed. 230; Davis v. Gray, 16 
 Wall. (U. S.) 205, 21 L. Ed. 447; 
 Board of Liquidation v. McComb, 
 92 U. S. 532, 23 L. Ed. 623; United 
 States v. Lee, 106 U. S. 196, 1 Sup. 
 Ct. 240. 27 L. Ed. 171; Hancock 
 v. Walsh, 3 Wood, 351; Berton- 
 neau v. Board of Directors City 
 Schools, 3 Woods, 177; Evansville 
 Nat. Bank v. Britton, 8 Fed. 867. 
 
 60. Central Trust Co. v. Citizens' 
 Street R. Co., 80 Fed. 218. 
 
 110
 
 Jurisdiction. 
 
 ;>.> 
 
 of a law of the State and it is declared that the fact that such law 
 is unconstitutional forms no ground for granting such injunction. 61 
 The mere ministerial acts and duties of public officers may, how- 
 ever, be reviewed by the courts and controlled by injunctions. 62 
 
 § 55. Same subject. — The English Court of Chancery had no 
 jurisdiction to restrain the appointment or removal of a municipal 
 officer. 83 And in this country it is well settled that courts of equity 
 
 61. Thompson v. Commissioner of 
 Canal Fund, 2 Abb. Pr. (N. Y.) 248. 
 
 62. Noble v. Union River Logging 
 Railroad, 147 U. S. 165, 171, 13 S. 
 Ct. 271, 37 L. Ed. 123, where Brown, 
 J., said: "With regard to the ju- 
 dicial power in cases of this kind 
 it was held by this court as early 
 as 1803, in the great case of 
 Marbury v. Madison, 1 Cranch, 137, 
 that there was a distinction between 
 acts involving the exercise of judg- 
 ment or discretion and those which 
 are purely ministerial ; that, with re- 
 spect to the former there exists and 
 can exist no power to control the 
 executive discretion however errone- 
 ous its exercise may seem to have 
 been, but with respect to ministerial 
 duties an act or refusal to act is, or 
 may become, the subject of review by 
 the courts. The principle of this case 
 was applied in Kendall v. United 
 States, 12 Pet. 524, and the action of 
 the Circuit Court sustained in a pro- 
 ceeding where it had commanded the 
 Postmaster-General to credit the re- 
 lator with a certain sum awarded to 
 him by the solicitor of the Treasury 
 under an Act of Congress authorizing 
 the latter to adjust the claim, this 
 being regarded as purely a ministerial 
 duty. In Decatur v. Paulding, 14 
 Pet. 497, a mandamus was refused 
 upon the same principle, to compel 
 the Secretary of the Navy to allow to 
 
 the widow of Commodore Decatur a 
 certain pension and arrearages. In- 
 deed, the reports of this court abound 
 with authorities to the same effect. 
 Kendall v. Stokes, 3 How. 87; Brash- 
 ear v. Mason, 6 How. 92; Reeside v. 
 Walker, 11 How. 272; Commissioner 
 of Patents v. Whitely, 4 Wall. 522; 
 United States v. Seaman, 17 How. 
 225, 231; United States v. Guthrie, 
 17 How. 284; United States v. The 
 Commissioner, 5 Wall. 563; Gaines 
 v. Thompson, 7 Wall. 347 ; The Secre- 
 tary v. McOarrahan, 9 Wall. 298; 
 United States v. Schurz, 102 U. S. 
 378; Butterworth v. Hoe, 112 U. S. 
 50, 5 S. Ct. 25; United States v. 
 Black, 128 U. S. 40. In all these 
 cases the distinction between discre- 
 tionary and ministerial acts is com- 
 mented upon and enforced. We have 
 no doubt the principle of these de- 
 cisions applies to a case wherein it is 
 contended that the act of the head of 
 a department, under any view that 
 could be taken of the facts that were 
 laid before him, was ultra vires, and 
 beyond the scope of his authority." 
 In State v. Cunningham, 81 Wis. 440, 
 51 N. W. 724, the official acts of the 
 Secretary of State in issuing and pub 
 lishing notices of election were held 
 to be ministerial and controllable by 
 injunction or mandamus as the ex- 
 igencies might require. 
 
 63. Attorney General v. Clarendon, 
 17 Ves. 491. 
 
 Ill
 
 §55 
 
 Jurisdiction. 
 
 haw no jurisdiction to enjoin the appointment or removal of 
 public officers, whether the power of appointment and removal 
 is vested in executive or administrative boards or officers, or is 
 entrusted to a judicial tribunal. 64 The jurisdiction to determine 
 the title to a public office belongs only to courts of law and i3 
 exercised either by certiorari, error or appeal, or by mandamus, 
 prohibition, quo warranto or information in the nature of a writ 
 of quo warranto, according to the circumstances of the case, and 
 the mode of procedure established by the common law or by 
 statute. 65 In New York the Attorney-General may maintain an 
 
 64. White v. Berry, 171 U. S. 366, 
 18 Sup. Ct. 917, 43 L. Ed. 199; 
 White v. Butler, 171 U. S. 379, 18 
 Sup. Ct. 949, 43 L. Ed. 204; Tappan 
 v. Gray. 9 Paige (N. Y.), 507, 509, 
 512; aff'd 7 Hill, 259. 
 
 65. In Re Sawyer, 124 U. S. 200, 
 213, 8 S. Ct. 482, 31 L. Ed. 402, 
 Gray, J. : " The Supreme Court of 
 Pennsylvania has decided that an 
 injunction cannot be granted to re- 
 strain a municipal officer from 
 exercising an office which he has 
 vacated by accepting another office, or 
 from entering upon an office under an 
 appointment by a town council al- 
 leged to be illegal ; but that the only 
 remedy in either case is at law by 
 quo warranto. Hagner v. Heyberger, 
 7 Watts & Serg. 104; Updegraff v. 
 Crans, 47 Pa. St. 103. The Supreme 
 Court of Iowa, in a careful opinion 
 delivered by Judge Dillon, has ad- 
 judged that the right to a municipal 
 office cannot be determined in equity 
 upon an original bill for an injunc- 
 tion. Cochran v. McCleary, 22 Iowa. 
 75. In Delehanty v. Warner, 75 111. 
 185, it was decided that a court of 
 chancery had no jurisdiction to en- 
 tertain a bill for an injunction to 
 restrain the mayor and aldermen of 
 a city from unlawfully removing the 
 
 plaintiff from the office of superin- 
 tendent of streets, and appointing a 
 successor; but that the remedy was 
 at law by quo warranto or mandamus. 
 In Sheridan v. Colvin, 78 111. 237, it 
 was held that a court of chancery had 
 no jurisdiction to restrain by injunc- 
 tion a city council from passing an 
 ordinance unlawfully abolishing the 
 office of commissioner of police. Upon 
 like grounds, it was adjudged in 
 Dickey v. Reed, 78 111. 261, that a 
 court of chancery had no power to 
 restrain by injunction a board of 
 commissioners from canvassing the 
 results of an election; and that or- 
 ders granting such an injunction and 
 adjudging the commissioners guilty 
 of contempt for disregarding it, were 
 wholly void. And in Harris v. 
 Schryock, 82 111. 119, the court in ac- 
 cordance with its previous decisions 
 held that the power to hold an elec- 
 tion was political and not judicial, 
 and therefore a court of equity had 
 no authority to restrain officers from 
 exercising that power. Similar de- 
 cisions have been made, upon full con- 
 sideration by the Supreme Court of 
 Alabama, overruling its own prior de- 
 cisions to the contrary. Beebe v. 
 Robinson, 52 Ala. 66; Moulton v. 
 Reid, 54 Ala. 320. In Nebraska the 
 
 112
 
 Jurisdiction. 
 
 §56 
 
 action against the usurper of a public or corporate office, or against 
 an officer who has forfeited his office. 6 * 
 
 § 56. No State jurisdiction of patent infringement. A State 
 
 court has no jurisdiction of a suit to enjoin the infringement of a 
 patent. 67 While a State court has jurisdiction to decide questions 
 as to the title to patents, and thereby pass upon the validity of 
 patents, it has no authority to restrain a party from using a patent 
 pendente lite. 68 A trade-mark is not within the provisions of the 
 
 authority conferred upon county com- 
 missioners to remove county officers 
 has since been held not to be an ex- 
 ercise of strictly judicial power, 
 within the meaning of that provision 
 of the Constitution of Nebraska, 
 which requires that ' the judicial 
 power of this State shall be vested in 
 a Supreme Court, District Courts,' 
 and other courts and magistrates 
 therein enumerated. Constitution of 
 Nebraska, art. 6, § 1 ; State v. Oleson, 
 15 Neb. 247. But it has always been 
 considered as so far judicial in its 
 nature, that the order of the county 
 commissioners may be reviewed on 
 error in the District Court of the 
 county, and ultimately in the Su- 
 preme Court of the State. State v. 
 Sheldon, above cited; Minkler v. 
 State, 14 Neb. 181; State v. Meeker, 
 19 Neb. 444, 448. See, also, Sioux 
 City & Pacific Railroad v. Washing- 
 ton County, 3 Neb. 30, 41; Nebraska 
 Code of Civil Procedure, §§ 580-584, 
 599; Criminal Code (ed. 1885), 
 § 572. This view does not substan- 
 tially differ from that taken in other 
 States, where similar orders have been 
 reviewed by writ of certiorari, as pro- 
 ceedings of an inferior tribunal or 
 board of officers, not commissioned as 
 judges, yet acting judicially and not 
 according to the course of the com- 
 mon law. Charles v. Mayor of Ho- 
 
 boken, 3 Dutcher, 203; People v. Fire 
 Commissioners, 72 N. Y. 445; Dona- 
 hue v. County of Will, 100 111. 94. In 
 Nebraska, as elsewhere, the validity 
 of the removal of a public officer, and 
 the title of the person removed, or of 
 a new appointee to the office, may be 
 tried by quo icarranto or mandamus. 
 Neb. Comp. Stat., chap. 19, §§ 13, 24; 
 chap. 71; Code of Civil Procedure, 
 §§ 645, 704; Cases of Sheldon, Oleson 
 and Meeker, above cited; The Queen 
 v. Sadlers' Co., 10 H. L. Cas. 404; 
 Osgood v. Nelson, L. R. 5 H. L. 636." 
 
 66. Code Civ. Pro..§ 1948. Com- 
 pare § 1955. In this State quo war- 
 ranto has been abolished by the Code, 
 but the action is in the nature of a 
 quo warranto. People v. Hall, 80 
 N. Y. 117. 
 
 67. Childs v. Tuttle, 7 N. Y. Supp. 
 59; Dudley v. Mayhew, 3 N. Y. 9; 
 Gibson v. Wood worth, 8 Paige, 132; 
 Kelly v. Kelly Mf'g Co., 15 111. App. 
 547. 
 
 68. Continental, etc., Service Co. 
 v. Clark, 100 N. Y. 365; Hat Sweat 
 Mf'g Co. v. Reinoehl, 102 N. Y. 167; 
 DeWitt v. Elmira Mf'g Co., 66 N. Y. 
 459; Hovey v. Rubber Tip Co., 57 
 N. Y. 119; Parson v. Barnard, 7 
 Johns. 144; Livingston v. Van Ingen, 
 9 Johns. 582. In the first of the 
 cases last cited the court said : " The 
 courts of this State have an un- 
 
 113
 
 §57 
 
 Jurisdiction. 
 
 Federal Constitution respecting patents and copyrights, and the 
 act of Congress conferring exclusive jurisdiction upon the Federal 
 courts in trade-mark cases, has been pronounced unconstitutional. 69 
 
 § 57. Peculiar jurisdiction of trusts, waste, etc. — A court of 
 equity has peculiar jurisdiction of trusts and trustees, and will 
 take them under its control by injunction, when necessary, and 
 direct the trustee to dispose of the trust fund for the purposes of 
 the trust, and will adjust all the equities of parties interested in 
 due and regular course. 70 And waste causing irreparable injury 
 will be restrained by injunction, 71 and perhaps contrary to the old 
 practice, a preliminary injunction will now be issued to preserve 
 property from destruction, pending proceedings for the determina- 
 tion of title. 72 The remedy by injunction is applicable to every 
 species of waste ; 73 and lies in favor not only of the first estate of 
 
 doubted right to adjudicate upon 
 questions arising in reference to the 
 title to letters patent, as well as 
 other questions as to the rights of 
 parties, which do not come within 
 the provisions of law relating to 
 patent rights. In such cases the right 
 secured by the patent is collateral 
 to the main purpose and object of 
 the action, and when this is the case 
 the State courts have jurisdiction to 
 determine the controversy. Middle- 
 brook v. Broadbent, 47 N. Y. 443, and 
 while they have authority to this 
 extent, they cannot acquire jurisdic- 
 tion beyond this. Here is the divid- 
 ing line, and a State court cannot 
 grant relief beyond its jurisdiction as 
 an incident to other relief which is 
 within its power. It may determine 
 what the contract is, and in whom 
 the title is vested, but it has no right 
 to say that a party shall be enjoined 
 from using the patent, or in any way 
 to pass upon any question arising as 
 to its infringement." See, also, Har- 
 
 tell v. Tilghman, 99 U. S. 547, 25 L. 
 Ed. 357. 
 
 69. United States v. Steffens, 100 
 U. S. 82, 25 L. Ed. 550. 
 
 70. Draper v. Davis, 104 U. S. 347, 
 26 L. Ed. 783. As to charitable trusts, 
 see United States v. World's, etc., Ex- 
 position, 56 Fed. 630, 646; Jackson v. 
 Phillips, 14 Allen, 539, 556; British 
 Museum v. White, 2 Sim. 4 S. 594. 
 As to conflicting trustees, see Brun- 
 dage v. Deardorf, 55 Fed. 839, and 
 cases cited. 
 
 71. Lanier v. Alison, 31 Fed. 100; 
 Fletcher v. New Orleans R. Co., 20 
 Fed. 345. 
 
 72. Erhardt v. Boaro, 113 U. S. 
 537, 5 S. Ct. 565 28 L. Ed. 1113; Le 
 Roy v. Wright, 4 Sawyer, 530, 535; 
 Jerome v. Ross, 7 Johns. Ch. 315, 332. 
 But see Pillsworth v. Hopton, 6 Ves. 
 51 as to different practice in time of 
 Lord Eldon. 
 
 73. Clement v. Wheeler, 25 N. H. 
 361; Moulton v. Stowell, 16 N. H. 
 221. 
 
 114
 
 Jurisdiction. 
 
 58 
 
 inheritance, but also of any party in remainder. 74 Again, equity 
 will not restrain a person from publishing, in the records and 
 books of a mercantile agency, false representations as to the busi- 
 ness standing and credit of the plaintiff, if no breach of trust or of 
 contract is involved. 75 This is the general rule as to libels which 
 involve no breach of trust or of contract. 76 And a stockholder in 
 a corporation, the value of whose shares is decreased by the 
 directors' wilful waste of corporate assets, cannot maintain an 
 action at law against them for damages, but must seek his remedy 
 in equity, and in a proper case by injunction. 77 
 
 § 58. No injunctive jurisdiction of criminal matters. — Except 
 as incidental to its peculiar jurisdiction for the protection of 
 infants and its authority to issue writs of habeas corpus for the 
 discharge of persons unlawfully imprisoned, the English Court of 
 Chancery had no jurisdiction over criminal matters, whether the 
 proceedings relating thereto were by indictment or by summary 
 process, 78 unless such proceedings are instituted by a party to a 
 suit already pending before it, and to try the same right that is 
 in issue there. 7 ' 
 
 74. Dennett v. Dennett, 43 N. H. 
 499. 
 
 75. Raymond v. Russell, 143 Mass. 
 295; 58 Am. Rep. 137; White- 
 head v. Kitson, 119 Mass. 484; Pru- 
 dential Assur. Co. v. Knott, L. R. 10 
 Ch. 142. 
 
 76. Boston Diatite Co. v. Florence 
 Mf'g Co., 114 Mass. 69. 
 
 In such cases if plaintiff has 
 any remedy, it is by action at 
 law. Barley v. Walford, 9 Q. B. 
 197; Wren v. Meild, L. R. 4 Q. B. 
 730. See, also, Mulkern v. Ward, 
 L. R. 13 Eq. 619; Emperor v. Day, 3 
 DeG., F. & J. 217, 238-241; Fleming 
 v. Newton, 1 H. L. Cas. 363; Seeley 
 v. Fisher, 11 Sim. 581; Gee v. Pritch- 
 ard, 2 Swanst. 402, 413. 
 
 See § 50 herein. 
 
 77. Hirsh v. Jones, 56 Fed. 137; 
 
 Kendig v. Dean, 97 U. S. 423, 24 L. 
 Ed. 1061 ; Dewing v. Perdicaries, 96 
 U. S. 193, 24 L. Ed. 654; Dodge v. 
 Woolsey, 18 How. 341, 15 L. Ed. 401; 
 Conway v. Halsey, 44 N. J. Law, 462. 
 
 78. 2 Hale P. C. 147; Gee v. 
 Pritchard, 2 Swanst. 402, 413. See, 
 also. Kerr v. Corporation of Preston, 
 L. R. 6 Ch. 463; Saull v. Browne, 
 L. R. 10 Ch. 64; Attorney Gen. v. 
 Utica Ins. Co., 2 Johns. Ch. (N. Y.), 
 371, 378. 
 
 79. In Re Sawyer, 124 U. S. 200, 
 210, 8 S. Ct. 482, 31 L. Ed. 402, Gray. 
 J.: "From long before the Declaration 
 of Independence, it has been settled in 
 England, that a bill to stay criminal 
 proceedings is not within the jurisdic- 
 tion of the Court of Chancery, whether 
 those proceedings are by indictment 
 or by summary process. Lord Chief 
 
 115
 
 §59 
 
 JUEISDICTION. 
 
 § 59. Same subject. — The rule so long existing in England, and 
 laid down in the preceding section, has been uniformly upheld 
 in this country, and it is a generally accepted rule that courts of 
 equity deal only with civil and property rights and that an injunc- 
 tion will not be granted the object of which is to enjoin the 
 prosecution of criminal proceedings 80 or the commission of 
 
 Justice Holt, in declining, upon a 
 motion in the Queen's Bench for an 
 attachment against an attorney for 
 professional misconduct, to make it 
 a part of the rule to show cause that 
 he should not move for an injunction 
 in chancery in the meantime, said: 
 ' Sure chancery would not grant an 
 injunction in a criminal matter under 
 examination in this court, and if they 
 did, this court would break it, and 
 protect any that would proceed in 
 contempt of it.' Holderstaffe v. 
 Saunders, Cas. temp. Holt, 136; s. c. 
 6 Mod. 16. Lord Chancellor Hard- 
 wicke, while exercising the power of 
 the Court of Chancery, incidental to 
 the disposition of a case pending be- 
 fore it, or restraining a plaintiff, who 
 had by his bill submitted his rights 
 to its determination, from proceeding 
 as to the same matter before another 
 tribunal, either by indictment or by 
 action, asserted in the strongest terms 
 the want of any power or jurisdic- 
 tion to entertain a bill for an injunc- 
 tion to stay criminal proceedings, 
 saying: 'This court has not, origi- 
 nally and strictly, any restraining 
 power over criminal prosecutions;' 
 and again : ' This court has not 
 jurisdiction to grant an injunction 
 to stay proceedings on a mandamus, 
 nor to an indictment, nor to an in- 
 formation, nor to a writ of prohibi- 
 tion, that I know of,' Mayor, etc., of 
 York v. Pilkington, 2 Atk. 302; Mon- 
 tague v. Dudman, 2 Ves. Sen. 396, 
 398. The modern decisions in England, 
 
 by eminent equity judges, concur in 
 holding that a court of chancery has 
 no power to restrain criminal pro- 
 ceedings, unless they are instituted 
 by a party to a suit already pending 
 before it, and to try the same right 
 that is in issue there. Attorney Gen- 
 eral v. Cleaver, 18 Ves. 211, 220 
 Turner v. Turner, 15 Jurist, 218 
 Saull v. Browne, L. R. 10 Ch. 64 
 Kerr v. Preston, 6 Ch. D. 463." 
 
 See as to same principle in Federal 
 courts Rhodes & J. Mf'g Co. v. State, 
 70 Fed. 721. 
 
 80. United States. — Fitts v. Mc- 
 Ghee, 172 U. S. 516, 19 Sup. Ct. 209, 
 
 43 L. Ed. 535 ; Logan v. Postal Teleg. 
 Co., 157 Fed. 570; Hemsley v. Meyers, 
 45 Fed. 283; Sness v. Noble, 31 Fed. 
 855. 
 
 Alabama. — Bessemer v. Bessemer 
 Waterworks, (Ala. 1907) 44 So. 663; 
 Montgomery v. West, (Ala. 1906) 40 
 So. 215; Moses v. Taylor, 52 Ala. 
 198. 
 
 Arkansas. — New Home Sew. Mach. 
 Co. v. Fletcher, 44 Ark. 139. 
 
 California. — Sullivan v. San Fran- 
 cisco G. & E. Co., (1905) 83 Pac. 
 156. 
 
 Connecticut. — Tyler v. Hamersley, 
 
 44 Conn. 419. 
 
 District of Columbia. — Washington 
 & G. R. Co. v. District of Columbia, 
 6 Mackey, 570. 
 
 Georgia. — Georgia Ry. & E. Co. v. 
 Oakland, (Ga. 1907) 59 S. E. 296; 
 Salter v. Columbus, 125 Ga. 96, 54 
 S. E. 74; Phillips v. Mayor, 61 Ga. 
 
 116
 
 Jurisdiction. 
 
 59 
 
 a criminal act. 80 * As public offenses are prosecuted in 
 the name of the sovereign, whether king or State, it is also 
 obvious that the restraining power of courts of equity would be 
 futile, as against the sovereign. 81 So where a bill has been filed 
 for relief in equity, the court will not enjoin the plaintiff in that 
 suit from carrying on criminal proceedings against the same de- 
 fendant concerning the same matter. 82 Nor will an injunction be 
 granted in the case of an illegal arrest, the proper remedy for such 
 an injury being either an action for damages or by habeas corpus. 83 
 
 386; Gault v. Wallia, 53 Ga. 675. 
 
 Kansas. — Levy v. Kansas City, 
 (Kan. 1906) 86 Pac. 149. 
 
 Mississippi. — Crighto v. Dohmer, 
 70 Miss. 602, 13 So. 237, 21 L. R. A. 
 70. 
 
 New York. — Davis v. Society for 
 Prevention of Cruelty to Animals, 75 
 N. Y. 362; Davis v. Society for Pre- 
 vention of Cruelty to Animals, 16 
 Abb. Prac. (N. S.) 73; Balagh v. 
 Lyman, 6 App. Div. 271, 39 N. Y. 
 Supp. 780; West v. Mayor, 10 Paige, 
 539; Kenny v. Martin, 11 Misc. R. 
 651, 32 N. Y. Supp. 1087. 
 
 North Carolina. — State v. Southern 
 Ry. Co., (N. C. 1907) 59 S. E. 570; 
 Cohen v. Goldsboro, 77 N. C. 2. 
 
 Ohio. — Predigested Food Co. v. Mc- 
 Neal, 1 Ohio ST. P. 266. 
 
 Oklahoma. — Golden v. Guthrie, 3 
 Okla. 128, 41 Pac. 350. 
 
 Texas. — Chisholm v. Adams, 71 
 Tex. 678, 10 S. W. 336. 
 
 West Virginia. — Flaherty v. Flem- 
 ing, (1906) 52 S. E. 857. 
 
 Wyoming. — Littleton v. Burgess, 
 (1905), 82 Pac. 864. 
 
 80a. O'Brien v. Harris, 105 Ga. 
 732, 31 S. E. 745; State v. Zachritz, 
 166 Mo. 307, 65 S. W. 999, 89 Am. 
 St. Rep. 711; Manor Casino v. State 
 (Tex. Civ. App.), 34 S. W. 76. 
 
 Legislature may authorize 
 granting of injunction to prevent 
 
 crime. Ex parte Allison, (Tex. Cr. 
 1905) 90 S. W. 492. 
 
 81. Suess v. Noble, 31 Fed. 855, 
 857. 
 
 82. Saull v. Brown, L. R. 10 Ch. 
 App. 64; Moses v. Mayor, 52 Ala. 
 198; and see Davis v. American Soc'y, 
 75 N. Y. 362; Stuart v. Supervisors, 
 83 111. 341. Though a court of equity 
 has no jurisdiction to enjoin purely 
 criminal proceedings, injunction will 
 lie against proceedings by a prosecut- 
 ing attorney to prevent the agents of 
 a non-resident importer from selling 
 intoxicating liquors in the original 
 packages in which they were im- 
 ported, under a State law which, in 
 so far as it prohibits such sales, is in 
 violation of the interstate commerce 
 clause of the Federal Constitution, 
 since such proceedings are an inter- 
 ference with complainant's property 
 rights under the Constitution, for 
 which, as provided by Rev. St. U. S. 
 § 1979, an action at law or suit in 
 equity may be maintained. Schand- 
 ler Bottling Co. v. Welch, 42 Fed. 
 561. But see Hemsley v. Myers. 45 
 Fed. 283. 
 
 83. Fincke v. Police Commis- 
 sioners, 66 How. Prac. (N. Y.) 318; 
 Murphy v. Board of Police, 11 Abb. 
 N. C. (N. Y.) 337; Examine Babang 
 v. Bank of Montreal, N. B. Eq. Cas. 
 
 117
 
 § 00 
 
 Jurisdiction. 
 
 And a court of equity will not interpose by injunction to protect a 
 person from irreparable injury, through the threatened publication 
 of a libel, or the commission of some other like crime, for that 
 would deprive accused persons of trial by jury. 84 
 
 § 60. Same subject; illegal ordinance or statute. — An injunc- 
 tion will not be granted to prevent the enforcement by criminal 
 proceedings of an alleged unlawful municipal ordinance; 85 for 
 should the plaintiff be injured by its enforcement, ho has redress 
 at law by an action for damages ; 86 and if he should violate it, its 
 validity would be tested under an indictment against him. 87 Crim- 
 inal enactments of the State legislative bodies are also subject to 
 the rule that prosecutions thereunder will not be restrained by 
 injunction. 88 This rule that an injunction will not be granted to 
 restrain prosecutions under an alleged illegal ordinance or statute 
 has been applied in the case of an ordinance forbidding the playing 
 
 524. See, also, Brown v. City of 
 Birmingham, (1904) 37 So. 173. 
 
 84. Carleton v. Rugg, 149 Mass. 
 550, 22 S. E. 55-; Boston Diatite Co. 
 v. Florence Mf'g Co.. 114 Mass. 69; 
 Brandreth v. Lance, 8 Paige, (N. Y.) 
 24; Kidd v. Horry, 28 Fed. 773; 
 Fleming v. Newton, 1 H. L. Cas. 363, 
 376. 
 
 85. United States. — Camden Inter- 
 state R. Co. v. Catlettsburg, 129 Fed. 
 421. 
 
 Alabama. — Bessemer v. Bessemer 
 Waterworks, (Ala. 1907") 44 So. 663; 
 Montgomery v. West, (Ala. 1906) 40 
 So. 215. 
 
 Colorado. — Denver v. Beede, 25 
 Colo. 172, 54 Pac. 624. 
 
 Georgia. — Paulk v. Sycamore, 104 
 Ga. 24, 30 S. E. 417, 41 L. R. A. 772. 
 
 Iowa. — Ewing v. Webster City, 103 
 Iowa, 226, 72 N. W. 511. 
 
 North Carolina. — Scott v. Smith, 
 121 N. C. 94, 28 S. E. 64; Wardens 
 
 St. Peter's Episcopal Church v. Wash 
 ington, 109 N. C. 21, 13 S. E. 700. 
 
 Oklahoma. — Golden v. Guthrie, 3 
 Okla. 128, 41 Pac. 350. 
 
 The judicial enforcement of a 
 penal ordinance can not be en- 
 joined. Canon City v. Manning 
 (Colo. S. C. 1908), 95 Pac. 536. 
 
 86. Cohen v. Commissioners, 77 
 N. C. 2. 
 
 87. Wardens St. Peter's Episcopal 
 Church v. Commissioners, 109 N. C. 
 21, 13 S. E. 700. See, also, Denver v. 
 Beede, 25 Colo. 172, 54 Pac. 624. 
 
 88. Paulk v. Sycamore, 104 Ga. 24, 
 30 S. E. 417, 41 L. R. A. 772; Ewing 
 v. Webster City, 103 Iowa, 226, 72 
 N. W. 511; Littleton v. Burgess 
 (Wyo. 1905), 82 Pac. 864. 
 
 Federal court has no jurisdic- 
 tion to enjoin criminal prosecution 
 for violation of a State law in a 
 State court. State v. Southern Ry. 
 Co. (N. C. 1907), 59 S. E. 570. 
 
 118
 
 JURISDICTION. 
 
 §60a 
 
 of baseball or football within the corporate limits; 89 an ordinance 
 making it a misdemeanor to conduct an auction without a license, 90 
 and a statute as to the catching of fish. 91 
 
 § 60a. Same subject ; qualification of rule. — Although it is a 
 general rule that a court of equity will not restrain the prosecution 
 of criminal proceedings or the commission of a criminal act, 92 yet 
 it is also true that a court of equity is not divested of its jurisdic- 
 tion to prevent an act by the mere fact that such act is criminal. 
 If it also appears that the act will result in a violation of property 
 rights and that the party aggrieved has no other adequate remedy 
 for the prevention of irreparable injury an injunction may be 
 granted restraining its commission. 93 So the Supreme Court of 
 Mississippi, in adherence to the general rule, has decided that an 
 injunction will not lie at the instance of a tenant to restrain a 
 criminal prosecution by a landlord for alleged trespass; but at the 
 same time recognized the existence of many cases proceeding on a 
 clear and obvious distinction, in which courts of equity have en- 
 joined acts affecting property rights, though such acts might also 
 
 89. Scott v. Smith, 121 N. C. 94, 
 28 S. E. 64. 
 
 90. Golden v. Guthrie, 3 Okla. 
 128, 41 Pac. 350. 
 
 91. Osborn v. Charlevoix Circuit 
 Judge, 114 Mich. 655, 72 N. W. 982. 
 
 92. See §§ 58-60 herein. 
 
 93. Alabama. — Port of Mobile v. 
 Louisville & N. R. Co., 84 Ala. 115, 
 4 6o. 106. 
 
 Georgia. — See O'Brien v. Harris, 
 105 Ga. 732, 31 S. E. 745. 
 
 Massachusetts. — Vegelahn v. Gunt- 
 ner, 167 Mass. 92, 44 N. E. 1077, 35 
 L. R. A. 722. 
 
 Missouri. — Hamilton Brown Shoe 
 Co. v. Saxey, 131 Mo. 212, 32 S. W. 
 1106. 
 
 Ohio. — Shaw v. Interstate Sav., L. 
 & T. Co., 5 Ohio N. P. 411. 
 
 Texas. — Manor Casino v. State 
 (Civ. App.), 34 S. W. 76; Ex parte 
 
 Allison (Tex. Cr. 1905), 90 S. W. 
 492. 
 
 West Virginia. — Fellows v. Charles- 
 ton (W. Va. 1907), 59 S. E. 623. 
 
 Wyoming. — Littleton v. Burgess 
 (1905), 82 Pac. 864. 
 
 England. — Springhead Spinning Co. 
 v. Riley, L. R. 6 Eq. 551, 558. 
 
 See Rhodes & J. Mf'g Co. v. State, 
 74 Fed. 721. 
 
 Where property rights will be 
 destroyed or greatly impaired by 
 criminal persecutions under a void 
 law or ordinance it is decided that 
 equity may interfere by injunction. 
 New Orleans Baseball & A. Co. v. 
 New Orleans, 118 La. 228, 42 So. 784, 
 citing Dobbins v. Los Angeles, 195 
 U. S. 223, 25 S. Ct. 18, 49 L. Ed. 
 169. 
 
 The exception to the rule that 
 a court of equity has no jurisdiction 
 
 119
 
 §60a 
 
 Jurisdiction. 
 
 be ground for indictment. 97 In this connection it is said hy the 
 United States Supreme Court: " It is objected that it is outside 
 of the jurisdiction of a court of equity to enjoin the commission 
 of crime. This, as a general proposition, is unquestioned. A 
 chancellor has no criminal jurisdiction. Something more than the 
 
 to restrain criminal proceedings are 
 said to be where the equity proceed- 
 ings are instituted by a party to a 
 suit already pending before the court, 
 and are in the nature of ancillary pro- 
 ceedings. Prout v. Starr, 188 U. S. 
 637, 23 S. Ct. 398, 47 L. Ed. 584, or 
 where the complainant has acquired 
 property rights which by the enforce- 
 ment of the criminal laws enacted 
 thereafter would be destroyed and 
 rendered worthless. Logan v. Postal 
 Teleg. & C. Co., 157 Fed. 570, citing 
 Camden Interstate Ry. Co. v. Cat- 
 tlesburg, 129 Fed. 521. 
 
 97. Crighton v. Dahmer, 70 Miss. 
 612, 13 So. 237, per Cooper, J.- "A 
 somewhat extended examination of 
 the approved text writers and of 
 judicial decisions has disclosed no 
 suggestion among the writers that 
 the jurisdiction invoked may be ex- 
 ercised by the courts of equity, nor 
 have we found a decided case by 
 which it is upheld, other than two 
 cases decided by the judges of the 
 District Courts of the United States, 
 siting in equity upon the circuit, in 
 which the jurisdiction of equity to 
 enjoin criminal prosecutions has been 
 pressed to great, and, as we think, 
 unwarrantable lengths. The cases to 
 which we refer are Bottling Co. v. 
 Welch, 42 Fed. 561, and Lottery Co. 
 v. Fitzpatrick, 3 Woods, 222. In the 
 first of these cases prosecutions under 
 a State law against unlawful retail- 
 ing were enjoined upon the ground 
 that the complainant was engaged in 
 
 interstate commerce, and in the other 
 p/oaecution under a statute of 
 Louisiana, forbidding the vending of 
 lottery tickets on the drawing of a 
 lottery, on the ground that the State 
 by contract with the complainant had 
 granted to it the right to do the for- 
 bidden act. In neither case wa? there 
 a pending suit involving property 
 rights, but the bill in each was ex- 
 hibited for the primary and original 
 purpose of enjoining criminal prose- 
 cutions in the State court, and neces- 
 sarily involved the power and juris- 
 diction of a court of equity to draw 
 to itself the investigation of the guilt 
 or innocence of the complainant of 
 the offense, which was or would be 
 the question for investigation of the 
 courts of the State having jurisdic- 
 tion thereof. We think no English 
 case can be found of modern times, 
 and no case in the United States, 
 other than the two above noted, in 
 which a court of equity has enjoined 
 the prosecution of criminal proceed- 
 ings. In Mayor, etc., v. Pilkington, 2 
 Atk. 302, the complainants had ex- 
 hibited their bill in chancery to es- 
 tablish their sole right of fishery in 
 the river Ouse. While the suit was 
 pending they caused the agent of the 
 defendant to be indicted in the Ses- j 
 sions at York, where there were 
 judges, for breach of the peace in 
 fishing in their liberty. On motion 
 of the defendant, Lord Chancellor 
 Hardwicke made an order restraining 
 the plaintiff from proceeding at the 
 
 120
 
 Jurisdiction. 
 
 §60 
 
 threatened commission of an offense against the laws of the land 
 is necessary to call into exercise the injunctive powers of the court. 
 There must be some interferences, actual or threatened, with prop- 
 
 Sessions till the hearing of the cause. 
 In Kerr v. Corporation of Preston, 6 
 Ch. Div. 467, Jessel, M. R., declared 
 that with the exception of Mayor v. 
 Pilkington, there was no instance in 
 which a court of equity had inter- 
 fered in criminal cases, and that in 
 Saull v. Browne, L. R. 10 Ch. App. 
 64, he had declined to follow that 
 ' doubtful decision,' and on appeal his 
 decision was affirmed. Where an 
 officer of a court acting under its 
 direction tore down some houses 
 which were the subject of litigation, 
 one of the parties to the suit was re- 
 strained from proceeding criminally 
 against him. Turner v. Turner, 2 
 Eng. Law & Eq. 130. The vice chan- 
 cellor, Lord Cranworth, declared the 
 distinction to be an obvious one, for 
 while the court had no jurisdiction 
 over an indictment in general, as 
 over a mere civil proceeding, yet, 
 when a court made an order in a 
 cause over which it had jurisdiction, 
 its execution could not be made the 
 ground of a criminal prosecution by 
 one of the parties, for the officer 
 would be punished by the court if he 
 failed to comply therewith. Mayor, 
 etc. v. Pilkington and Turner v. 
 Turner are the only English cases 
 with which we are acquainted in 
 which the prosecution of criminal 
 proceedings has been restrained, and 
 in each the relief was granted by a 
 mere order of the court acting upon 
 parties to a pending suit in which 
 the court was proceeding, and not by 
 injunction under the seal of the court. 
 In Saull v. Browne, supra, the court 
 refused to make an order restraining 
 
 one of the parties from at the same 
 time prosecuting a criminal proceed- 
 ing. As against general criminal 
 prosecutions, relief has uniformly 
 been refused. Montague v. Dudman, 
 2 Ves. Sr. 396; Holderstaffe v. 
 Saunders, 6 Mod. 16; Attorney-Gen- 
 eral v. Cleaver, 18 Ves. 211. The 
 Supreme Court of the United States, 
 in Re Sawyer, 124 U. S. 200, 8 Sup. 
 Ct. Rep. 482, 31 L. Ed. 402, reviewed 
 the decisions in England and America, 
 and declared that there was no juris- 
 diction in chancery to enjoin prosecu- 
 tions for crime, except in cases in 
 which the order was made to restrain a 
 party to a suit already pending be- 
 fore the court, and to try the same 
 right that is in issue there. Sawyer, 
 who had been arrested for contempt 
 of the injunction of a Federal court, 
 was discharged on habeas corpus, 
 upon the ground of an entire want 
 of power in the court to grant the 
 injunction. There are many cases to 
 be found proceeding upon an obvious 
 and clear distinction in which courts 
 of equity have enjoined acts affecting 
 property rights, notwithstanding the 
 fact that such acts might also be 
 ground for indictment. To this class 
 are to be assigned the cases of Em- 
 peror of Austria v. Day, 3 DeG., F. 
 & J. 217; Springhead Spinning Co. 
 v. Riley, L. R. 6 Eq. 551. In the lat- 
 ter case the chancellor said: 'The 
 truth I apprehend is that the court 
 will interfere to prevent acts amount- 
 ing to crime if they do not stop at 
 crime but also go to the destruction 
 or deterioration of the value of the 
 property.' To the same class belong 
 
 121
 
 §60 
 
 Jurisdiction. 
 
 orty or rights of a pecuniary nature, but when such interferences 
 appear the jurisdiction of a court of equity arises, and is not 
 destroyed by the fact that they are accompanied by or are them- 
 selves violations of the criminal law. 9S So the fact that the per- 
 petrator of a nuisance is amenable to the provisions and penalties 
 of the criminal law is not an answer to an action against him by a 
 private person to recover for an injury sustained and for an in- 
 junction against the continued use of his premises in such a man- 
 ner. 99 So where the owner of a vacant lot wished to improve it but 
 could not erect a building thereon which would be available for a 
 lawful purpose owing to the fact that the adjoining building was 
 used for a house of prostitution it was decided that an injunction 
 against the further use of the premises for such a purpose would 
 be granted. 1 
 
 numerous decisions which rest upon 
 the same principle, which is clear 
 and easily distinguishable from that 
 of enjoining the ordinary criminal 
 prosecutions which affect the prop- 
 erty rights more or less indirectly, 
 and in which no jurisdiction can be 
 taken in courts of equity. In the 
 cases of Bottling Co. v. Welch, 42 
 Fed. 562, and Lottery Co. v. Fitz- 
 patrick, authorities for the exercise 
 of the jurisdiction in the one class 
 were cited as upholding it in the 
 other, but it is notable that in 
 neither case was a decision cited, 
 either English or American in which 
 the precise point involved had been 
 ruled in favor of the jurisdiction. In 
 Montague v. Dudman, 2 Ves. Sr. 396, 
 Lord Chancellor Hardwicke declared 
 he was unable to discover a prece- 
 dent for the exercise of the power, 
 and said: 'I will go by Littleton's 
 rule, that it is a good argument, an 
 action lies not, because one was never 
 brought. I never knew a bill of this 
 kind, and therefore will not make the 
 precedent.' There are a few cases in 
 which the enforcement of void muni- 
 
 cipal ordinances, the execution of 
 which directly affected property 
 rights, have been enjoined, and crim- 
 inal prosecutions before the munici- 
 pal authorities restrained. City of 
 Atlanta v. Gate City Gaslight Co., 71 
 Ga. 106; Shinkle v. City of Coving- 
 ton, 83 Ky. 420. But with the ex 
 ception of Bottling Co. v. Welch and 
 Lottery Co. v. Fitzpatrick, we have 
 found no decisions of any court that 
 a bill in equity may be exhibited for 
 the single purpose of enjoining crim- 
 inal prosecutions, and against these 
 decisions stand the unbroken deci- 
 sions of all courts of authority." 
 
 98. In re Debs, 158 U. S. 564, 593, 
 15 Sup. Ct. 900, 39 L. Ed. 1092. Per 
 Mr. Justice Brewer. 
 
 99. Cranford v. Tyrrell, 128 N. 
 Y. 341, 28 N. E. 514. See also Minke 
 v. Hopeman, 87 111. 450; People v. St. 
 Louis, 5 Gilm. 351; Ewell v. Green- 
 wood, 26 Iowa, 377; Carleton v. 
 Rugg, 149 Mass. 550; Attorney-Gen- 
 eral v. Hunter, 1 Dev. Eq. 12. 
 
 1. Dempsie v. Darling, 39 Wash. 
 125, 81 Pac. 152. 
 
 122
 
 Jurisdiction. 
 
 §61 
 
 § 61. Injunctive jurisdiction of courts of last resort. — These 
 appellate courts have no original jurisdiction of injunctions unless 
 vested with it by the constitutions of their respective States, 2 but 
 in a large number of States power to issue injunctions has either 
 been conferred directly by the constitution or by the Legislature 
 in the exercise of authority conferred upon it. 3 In the absence, 
 however, of this constitutional authority, the Legislature cannot 
 authorize them to issue injunctions. 4 The Colorado constitution 
 confers on the Supreme Court of that State original jurisdiction 
 to issue injunctions, 5 but only in cases of publici juris in which the 
 interest of the State is directly involved. 6 Under this provision it 
 has been decided that a conspiracy to prevent an election may be 
 enjoined by the Supreme Court in a suit by the State on relation 
 of the Attorney-General. 7 The Pennsylvania Statutes of 1836 
 and 1857 enact that " the Supreme Court when sitting in banc 
 in the city of Philadelphia and the Court of Common Pleas of the 
 said city and county shall have the power and jurisdiction of courts 
 of chancery so far as relates inter alia to the prevention or restraint 
 
 2. Arkansas. — Jones v. Little 
 Rock, 25 Ark. 284; Ex parte Jones, 
 2 Ark. 93. 
 
 Georgia. — Cubbedge v. Hazelhurst, 
 A2, Ga. 124. 
 
 Illinois. — Campbell v. Campbell, 22 
 111. 664. 
 
 Iowa. — Reed v. Murphy, 2 G. 
 Greene, 568. 
 
 Kentucky. — See Dupoyster v. Fort 
 Jefferson I. Cos. Receiver, 28 Ky. 
 Law Rep. 504, 89 S. W. 509. 
 
 Missouri. — Lane v. Charles, 5 Mo. 
 285. 
 
 Ohio.— Kent v. Mahaffy, 2 Ohio St. 
 498. 
 
 But see Davis v. Tuscumbia C. & 
 D. R. Co., 4 Stew. & P. 421; Cooper 
 v. Mineral Point, 34 Wis. 181. 
 
 3. Alabama.— Civ. Code 1907, § 
 4512. 
 
 Colorado. — Const. Art. VI, § 3; 
 Mills Annot. Stats. 1904, § 375, p. 18. 
 
 Indiana. — Thornton's Annot. Civ. 
 Code, 1907, § 961. 
 
 Iowa.— Code 1897, § 4357. 
 
 Maine.— Rev. Stats. 1903, ch. 79, 
 § 35, p. 683. 
 
 Mississippi. — Code 1906, § 992. 
 
 Montana. — Code Civ. Proc. 1895, 
 § 19. 
 
 New Hampshire. — Pub. Stats. & 
 Sess. Laws, 1901, pp. 669, 670. 
 
 Ohio. — Bates Annot. Stats. 1905, 
 § 5571. 
 
 Wisconsin. — Const. Art. VII, § 3. 
 
 4. Campbell v. Campbell, 22 111. 
 664; followed in Bryant v. People, 
 71 111. 32. 
 
 5. Const. Art. VI, § 3. See Mills' 
 Annot. Stats. Colo. 1904, § 375, p. 18. 
 
 6. Wheeler v. Irrigation Co., 9 
 Colo. 248. 
 
 7. People v. Tool (Colo. 1905), 86 
 Pac. 224. 
 
 123
 
 § 61 Jurisdiction. 
 
 of the commission or continuance of acts contrary to law and preju- 
 dicial to the interests of the community or the rights of indi- 
 viduals." Under this enactment the Supreme Court has 
 jurisdiction of trespasses and nuisances which threaten to become 
 permanent, 8 but the general rule is that that court will take original 
 jurisdiction of injunctions only in extreme cases, and will refuse 
 to take it where a party could have had his remedy by appeal to 
 that court. 9 The Florida Supreme Court has no original jurisdic- 
 tion of the writ of injunction. In equity causes it has only appel- 
 late jurisdiction, but the constitution of 1885 empowered it to issue 
 " all writs necessary or proper to the complete exercise of its juris- 
 diction," and under that power it has probably jurisdiction to issue 
 a temporary injunction to operate pending the appeal in a cause 
 before it ; 19 generally, however, this power should not be exercised 
 by the Supreme Court but left to the discretion of the chancellor. 11 
 Formerly in Illinois the Supreme and Circuit Courts in term 
 time, and any judge thereof in vacation, had power to grant injunc- 
 tions; 12 but the act of 1874 revising the law of injunctions enacts 
 " that the Superior Court of Cook county and the Circuit Courts 
 in term time and any judge thereof in vacation shall have power 
 to grant writs of injunction ;" and if no judge is within the county 
 and available, masters 1 in chancery may grant the writs. 13 In 
 Wisconsin the Supreme Court of the State has been decided to 
 have original prerogative jurisdiction to issue an injunction in an 
 action brought by the Attorney-General in the name of the State 
 to restrain the Secretary of State from issuing or publishing 
 notices of an election of members of the Legislature under an 
 apportionment act alleged to be invalid, 14 but in an early case in 
 
 8. Walters v. McElroy, 151 Pa. St. 12. Welch v. Byrns, 38 111. 20, 24. 
 549, 25 Atl. 125. 13. 111. Rev. Stats. 1903, ch. 69, 
 
 9. Clark v. Borough of Washing- § 1, p. 1041. 
 
 ton, 145 Pa. St. 566, 22 Atl. 989. 14. State v. Cunningham, 81 Wis. 
 
 10. Cohen v. L'Engle, 24 Fla. 542; 440, 51 N. W. 724; Attorney-General 
 see Jewett v. Dringer, 29 M. J. Eq. 199. v. Railroad Companies, 35 Wis. 425, 
 
 11'. Cohen v. L'Engle, 24 Fla. 542, 512; Cooper v. Mineral Point, 34 
 
 547; Hart v. Mayor, 3 Paige, 386; Wis. 181. See Wis. Const. Art. VII, 
 
 Monkhouse v. Bedford Corporation, § 3. 
 17 Ves. 380. 
 
 124
 
 JURISDICTION. 
 
 §62 
 
 that State it is held that the court of last resort has no jurisdiction 
 of injunctions in private suits between private parties proceeding 
 on private right or wrong. 15 And a similar doctrine is affirmed 
 in early case in Missouri. 16 And the Appellate Court of Indiana 
 was given no original jurisdiction of injunctions under the statute 
 of 1891 which authorized that court to issue injunctions " in aid 
 of the exercise of its jurisdiction or to enforce its judgments or 
 orders." 17 The Supreme Court of this State was given jurisdic- 
 tion by a similar clause which provided that it might issue injunc- 
 tions " in term time when necessary and proper for the due exer- 
 cise of the jurisdiction and powers of such court." 18 
 
 § 62. Same subject. — In 1849 it was decided that the power 
 of the Maine Supreme Court to issue writs of injunction was 
 derived from statutes and limited to the equity jurisdiction given 
 to it by statute, 19 and that court does not take jurisdiction in equity 
 where the plaintiff has a plain and adequate remedy in an action 
 
 15. Attorney-General v. Railroad 
 Companies, 35 Wis. 425, 520. 
 
 16. State v. Stewart, 32 Mo. 379; 
 State v. Lawrence, 38 Mo. 535; Fos- 
 ter v. State, 41 Mo. 61; Vail v. 
 Pinning, 44 Mo. 210; State v. Vail, 
 53 Mo. 97. In Vail v. Dinning, 44 
 Mo. 210, 214, the court said: "It is 
 very plain that were it not for the 
 express exceptions contained in the 
 constitution, this court could exercise 
 no original jurisdiction. As it is, its 
 power is confined to certain specified 
 writs, and others of a like remedial 
 nature. ... In Lane v. Charless, 
 5 Mo. 285, it was held that an in- 
 junction was not one of the original 
 remedial writs provided for." 
 
 17. Louisville N. A. & C. R. Co. 
 v. Malott, 6 Ind. App. 545, 33 N. E. 
 1009. A stone-cutter sued an ad- 
 ministratrix for work done on a 
 monument under an alleged contract 
 with the deceased. The adminis- 
 tratrix denied the existence of the 
 
 contract, but judgment went against 
 her on that issue, and she appealed 
 to the appellate court. Pending the 
 appeal she petitioned that court to 
 enjoin the stone-cutter from erecting 
 the monument. Acts 1891, p. 42, 
 creating the appellate court, only 
 authorizes it (section 12) to issue 
 injunctions " in aid of the exercise 
 of its jurisdiction, or to enforce its 
 judgments or orders." Held, that the 
 erection of the monument could in 
 no wise affect the court's decision of 
 the appeal or interfere with the en- 
 forcement of the judgment to be 
 rendered, and hence there was no 
 authority to issue the injunction. 
 Sheeks v. Fillion (Ind. App.), 29 ST. 
 E. 443. 
 
 18. Thornton's Annot. Civ. Code, 
 1907, § 9G1. 
 
 19. Smith v. Ellis, 29 Me. 422. 
 As to power of Supreme Judicial 
 
 Court to issue injunctions, see Me. 
 Rev. Stats. 1903, ch. 79, § 35, p. 683. 
 
 125
 
 § 62 Jurisdiction. 
 
 at law. 20 By the Maine statute of March 17, 1893, when in an 
 action at law in the Supreme Court it appeared that the rights of 
 the parties could be better enforced by a decree in equity, the court 
 was given power to strike out the pleadings at law and require the 
 parties to plead in equity; to determine the cause in equity; to 
 make such restraining orders as might be necessary to preserve 
 oqui table rights, and to issue injunctions according to the usual 
 practice of courts of equity. 21 In South Carolina it is decided 
 that the Supreme Court has the power to issue writs or orders of 
 injunction, and that such power is not restricted to cases pending 
 in the Supreme Court, either in its original or appellate jurisdic- 
 tion. 22 Under an earlier constitutional provision in this State it 
 was decided that the power conferred on the Supreme Court to 
 grant injunctions did not authorize it to dissolve a preliminary 
 injunction granted by the Circuit Court in an action on appeal 
 from the latter court. 23 Under the Virginia constitution the 
 Supreme Court of Appeals has no original jurisdiction to grant 
 injunctions. And under the Virginia Code of 1887, section 3438, 
 that court, sitting in banc had no such jurisdiction, but one of its 
 judges had where an injunction had been refused by the inferior 
 courts. 24 The Massachusetts statute of 1887, enacting that the 
 Supreme Judicial Court and Superior Court shall have equity 
 jurisdiction to enjoin and abate places used for prostitution, 
 gambling or the illegal sale of liquors as a common nuisance, has 
 been upheld as constitutional because it is directed against the 
 property only of the offender and not against his person. 25 Similar 
 
 20. Porter v. Frenchman's Bay & and the right to correct errors at 
 M. D. L. & W. Co., 84 Me. 195., 24 law, also the power to issue writs of 
 Atl. 814; Alley v. Chase, 83 Me. 537, injunction, etc., gives such court no 
 22 Atl. 393; Bachelder v. Bean. 76 power to dissolve an injunction 
 Me. 370; Milliken v. Dockray, 80 Me. granted by the Circuit Court. State 
 82 13 Atl. 127. v - Westmoreland, 27 S. C. 625, 7 S. 
 
 21. Maine Practice Act of 1893. E. 256. 
 
 22. Salinas v. Aultman, 49 S. C. 24. Fredenheim v. Rohr, 87 Va. 
 378, 27 S. E. 407, construing Const. 764, 13 S. E. 193, 266; Mayo v. 
 1895, art. V, § 4. Haines, 2 Munf. (Va.) 423; Ran- 
 
 23. Const. S. C. art. 4, § 4, grant- dolph, 6 Randolph (Va.), 194. 
 
 ing to the Supreme Court appellate 25. Carleton v. Rugg, 149 Mass. 
 
 jurisdiction only in cases of chancery, 550, 22 N. E. 55, where the fallacy 
 
 126
 
 Jurisdiction. 
 
 63 
 
 statutes in Kansas and Iowa directed against and to enjoin the 
 liquor nuisance have been sustained. 26 But the Supreme Court of 
 Kansas has been held to have no jurisdiction of an injunction to 
 restrain a person from exercising the duties of county attorney. 27 
 
 § 63. Of Supreme Court of New York. — The Supreme Court 
 of New York possesses the powers and general jurisdiction in law 
 and equity formerly exercised by the Supreme Court of the 
 Colony, and by the Court of Chancery in England prior to July 4, 
 1776, subject to the limitations imposed by the constitution and 
 laws of the State, 28 and has the power inherent in such jurisdiction 
 of enjoining the execution of its decrees in cases of injunctions 
 pending an appeal ; 29 and was vested by the constitution of 1846 
 with jurisdiction of all suits and proceedings of the former Court 
 of Chancery of the State which was abolished in 1847. 30 In this 
 State the Supreme Court justices were specially authorized by 
 
 of the argument that the statute de- 
 prived the citizen of trial by jury was 
 thus exposed: "The fallacy of the 
 argument lies in part in disregard- 
 ing the distinction between a proceed- 
 ing to abate a nuisance which looks 
 only to the property that in the use 
 made of it constitutes the nuisance, 
 and the proceeding to punish an of- 
 fender for the crime of maintaining 
 a nuisance. These two proceedings 
 are entirely unlike. The latter is 
 conducted under the provisions of 
 the criminal law and deals only with 
 the person who has violated the law. 
 The former is governed by the rules 
 which relate to property, and its only 
 connection with persons is through 
 property in which they may be inter- 
 ested. That which is declared by a 
 valid statute to be a nuisance, is 
 deemed in law to be a nuisance in 
 fact and should be dealt with as such. 
 . The fact that keeping a 
 nuisance is a crime does not deprive 
 a court of equity of the power to 
 
 abate the nuisance." The super- 
 visory power of the Supreme Judicial 
 Court in insolvency matters, given by 
 Pub. St. Mass. ch. 157, § 15, cannot 
 be invoked to enjoin the proving of 
 claims against an insolvent estate, or 
 to decide the terms on which they 
 may be proved, before they have first 
 been presented to and passed on by 
 the court of insolvency. Proctor v. 
 National Bank, 152 Mass. 223, 25 N. 
 E. 81. 
 
 26. Kansas v. Ziebold, 123 U. S. 
 623. 8 S. Ct. 273, 31 L. Ed. 205; State 
 v. Crawford, 28 r^an. 726; Littleton 
 v. Fritz, 65 Iowa, 488, 22 N. W. 641. 
 
 27. Foster v. Moore, 32 Kan. 483, 
 4 Pac. 850, per Curiam: "Neither 
 the constitution nor statutes give the 
 Supreme Court original jurisdiction 
 in suits for injunction." 
 
 28. Code Civ. Pro., § 217. 
 
 29. Genet v. Delaware & H. Canal 
 Co., 113 N. Y. 472, 474, 21 N. E. 390. 
 
 30. N. Y. Const. 1846, art. 14, §§ 
 5-8. 
 
 127
 
 § 64 Jurisdiction. 
 
 the statute of 1882 to grant injunctions against banks on their 
 refusing to pay certain demands. 31 And it is also provided by 
 Code in New York that when a duty is imposed by statute upon 
 a State officer, or board of State officers, an injunction order to 
 restrain him or them, or a person employed by him or them, from 
 the performance of that duty, or to prevent the execution of the 
 statute, shall not be granted except by the Supreme Court, at a 
 term thereof, sitting in the department in which the officer or 
 board is located, or the duty is required to be performed ; and upon 
 notice of the application thereof to the officer, board, or other 
 person to be restrained. 32 
 
 § 64. Of Superior and City Courts. — In several of the States 
 jurisdiction is conferred upon the Superior Court to issue injunc- 
 tions. 33 So the Superior Court of Cook's county, Illinois, is 
 specially authorized to grant injunctions. 34 And the Superior 
 Court of the city of New York had chancery powers within the 
 city of New York co-extensive with those of the Supreme Court, 35 
 and had original jurisdiction to grant injunctions. 36 The Special 
 Term of the Superior Court also had power to enjoin by order the 
 operation of a judgment rendered by it in an injunction suit, pend- 
 ing an appeal, where the appeal did not of itself relieve the 
 defendant from the duty of immediate obedience, and a mere order 
 staying proceedings on the part of plaintiff would not affect that 
 purpose. 37 Under the North Carolina Code, providing that judges 
 
 31. L. 1882, ch. 409. § 131. in like manner as the supreme 
 
 32. Code Civ. Proc., § 605. court." 
 
 33. Thornton's Annot. Civ. Code, 37. Genet v. Delaware & H. Canal 
 Ind. 1907, § 1228; Iowa Code, 1897, Co., 113 N. Y. 472, 21 N. E. 390, 
 §§ 262, 4357; No. Car. Revisal of where the court said: " The judg- 
 1905. § 814. ment in this case prohibits the de- 
 
 34. 111. Rev. Stats. 1903, ch. 69, fendant from using its structures 
 § 1 p. 1041. on the plaintiff's lands in the way 
 
 35. Code Civ. Pro. § 267. in which it had been accustomed to 
 
 36. Code Civ. Pro. § 267: " Tt use them for several years, and from 
 may render any judgment or grant depositing culm on the surface. It 
 either party any relief which the adjudges the right as claimed by 
 supreme court might render in ? like the plaintiff and denies the adverse 
 case and may enforce its mandates claim of the defendant. The judg- 
 
 12S
 
 JUEISDICTION. 
 
 §64 
 
 of the Superior Court shall have jurisdiction to grant injunctions 
 and issue restraining orders in all civil actions and proceedings 
 authorized by law, and that the injunction may be granted at the 
 time of commencing the action, or at any time afterwards before 
 judgment, an injunction may issue in an action before service of 
 the summons ; and notice of the same to defendant gives the court 
 jurisdiction of him, as to it. 38 The Georgia Uniform Procedure 
 Act of 1887 did not give the Superior Court any greater jurisdic- 
 tion by injunction to abate nuisances than it had before equity and 
 law were combined in that court. 39 And in a later case in this 
 State it is decided that the Superior Court has no jurisdiction to 
 issue an injunction restraining the custodian of a will from offer- 
 ing it for probat(-. 39a The Superior Court of Massachusetts was 
 specially authorized by the statute of 1887 to issue injunctions 
 for the abatement as nuisances, of places for gambling, prostitu- 
 tion and the illegal sale of liquors. 40 In California it has been 
 
 ment operates of its own force and 
 without further process, as a pro- 
 tection against doing the act en- 
 joined. The appeal does not of itself 
 relieve the defendant from the duty 
 to obey the judgment. The statute 
 does not prescribe any method by 
 which the execution of a judgnent 
 can be stayed in a case like this. 
 Code Civ. Pro. §§ 1327 et seq. Nor 
 would a mere order staying proceed- 
 ings by the plaintiff enable the de- 
 fendant to prosecute its business in 
 violation of the judgment. Sixth 
 Ave. R. Co. v. Gilbert El. R Co., 
 71 N. Y. 430." 
 
 38. Fleming v. Patterson, 99 N. 
 G, 404. 6 S. E. 396. 
 
 As to power of judges of superior 
 court to issue injunctions. See No. 
 Car. Revisal of 1905, § 814. 
 
 39. Broomhead v. Grant, 83 Ga. 
 451. 10 S. E. 116. 
 
 39a. Israel v. Wolf, 100 Ga. 339, 
 28 S. E. 109. 
 
 40. Carleton v. Rugg 149 Mass. 
 550, 22 N. E. 5o. Mass. St. 1883, ch. 
 223, § 1, providing that the Superior 
 Court shall have original and con- 
 current jurisdiction with the Su- 
 preme Judicial Court in all matters 
 in which relief in equity is sought, 
 with all the powers incident to such 
 jurisdiction, does not confer on the 
 Superior Court the authority given 
 the Supreme Judicial Court by Pub. 
 St. ch. 102, § 39, to issue an injunc- 
 tion against the erection, occupancy, 
 or use of a building as a stable for 
 more than four horses in a city or 
 town, except an the mayor and al- 
 dermen or selectmen may direct. 
 Baldwin v. Wilberham, 140 Mass. 
 459. 4 N. E. 829. And St. 1890, ch. 
 395, amending Pub. St. ch. 102, § 39, 
 so as to give the Superior and Su- 
 preme Judicial Courts concurrent 
 jurisdiction to enjoin the occupancy 
 or use of a stable in a city or town 
 for more than four horses without a 
 
 129
 
 § 65 Jurisdiction. 
 
 decided that the granting of an injunction restraining the peti- 
 tioner in a divorce proceeding from alienating his property during 
 the pendency of the action is within the jurisdiction of the 
 Superior Court of the city and county of San Francisco. 41 Under 
 the act creating the City Court of Montgomery, Alabama, the judge 
 of that court was given the same power to grant injunctions as the 
 circuit judges, or the chancellor. 42 
 
 § C5. Of Circuit Courts.— In some of the States the Circuit 
 Courts have been expressly authorized by statute to issue injunc- 
 tions. 43 Under the Illinois Act of 1874 revising the law of 
 injunctions the Circuit Courts in term time and any judge thereof 
 in vacation were given injunctive jurisdiction, and if no judge 
 was within the county and available, masters in chancery might 
 grant the writ. 44 A circuit judge in that State has been held to 
 have the power to grant injunctions to operate throughout the 
 State. 40 But in Indiana it is decided that where in attachment 
 proceedings in one county an order is made for the sale of real 
 estate situated in another county, the Circuit Court of the latter 
 county has no jurisdiction to enjoin the execution of such order. 46 
 In South Carolina it was early decided that the Circuit Courts 
 
 license, such jurisdiction having pre- Maryland. — Pub. Gen. Laws, 1903, 
 
 viously resided in the Supreme Judi- Art. 16, § 83, p. 200. 
 
 cial Court alone, does not confer jur- Michigan. — Comp. Laws 1897, 
 
 isdiction on the Superior Court of a § 514. 
 
 suit pending at the time the Amenda- Mississippi. — Code 1906, § 992. 
 
 tory Act took effect. Langmaid v. Missouri. — Rev. Stats. 1899, § 3627. 
 
 Reed, 159 Mass. 409, 34 N. E. 593. Ohio.— Bates' Annot. Stats. 1905. 
 
 41. In re White, 113 Cal. 282, 45 § 5571. 
 
 Pac. 323. Tennessee. — Annot. Code 1896, 
 
 42. Ex parte Sayre, 95 Ala. 288, § 6246. 
 
 11 So. 378. West Virginia.— Annot. Code 1906. 
 
 43. Alabama.— Civ. Code, 1907, § § 4009. 
 
 4512. Wisconsin. — Const. Art. VII, § 8. 
 
 Arkansas.— Dig. Stats., 1894, § 44. Cothran's 111. R. S. 1889, pp. 
 
 3779. 795, 796. 
 
 Florida.— Gen. Stats., 1906, § 1859. 45. Welch v. Byrns, 38 111. 20, 
 
 Indiana. — Thorntoa's Annot. Civ. 46. Scott v. Runner, 146 Ind. 12, 
 
 Code, 1907, § 961. 44 N. E. 755. 
 
 130
 
 Jurisdiction. § 65 
 
 have power to issue injunctions. 47 Under the provision of the 
 Virginia Code, § 3436, that jurisdiction of a suit for injunction 
 shall be in the Circuit Court of the county in which the act or 
 proceeding is to be done or is doing or apprehended, it has been 
 decided that an injunction to restrain entry on land cannot be 
 maintained in a county other than that in which the land is sit- 
 uate. 48 In Maryland by the law of 1852 it was provided that the 
 judges of the several judicial circuits and the judge of the Circuit 
 Court of Baltimore shall each in his respective circuit have the 
 power and jurisdiction which the Court of Chancery formerly had 
 and may grant injunctions to take effect in any part of his circuit. 49 
 In this State the jurisdiction of the Circuit and Common Pleas 
 Courts over insolvency proceedings is of a limited nature, being 
 prescribed by statute; and they have no power to grant injunctions 
 in such proceedings, except in the single instance provided for by 
 Act 1880, ch. 172, where an inquiry is instituted to determine the 
 insolvency of a debtor, and it is desired to protect the property in 
 the meantime. 50 In Alabama the judges of the Circuit Court have 
 been authorized by statute to grant writs of injunction returnable 
 into the Courts of Chancery co-extensivcly with the power exer- 
 cised by the chancellor, and under the Act of 1863 creating the 
 City Court of Montgomery, the judge of that court had the same 
 power to issue such writs as the Circuit Court judges. 51 Under the 
 Kentucky Code, § 285, providing that an injunction to stay pro- 
 ceedings on a judgment shall be granted only in a suit brought in 
 the court where the judgment was rendered, the Circuit Court 
 has been held to have no jurisdiction to enjoin the sale of property 
 under an execution upon a judgment of a justice of the peace. 52 
 In Michigan the circuit judges, and each injunction master within 
 
 47. State v. Westmoreland, 27 v. Smart, 69 Md. 320, 14 Atl. 468, 
 S. C. 625, 7 S. E. 256. 17 Atl. 1101; Fishback v. Green, 87 
 
 48. Norfolk & W. R. Co. v. Postal Ky. 107, 7 S. W. 881. 
 
 Tel. Cable Co., 88 Va. 932, 14 S. E. 51. Ex parte Sayre, 95 Ala. 288, 
 
 689. 11 So. 378. 
 
 49. L. 1852, ch. 16 §§ 1-4. 52. Chesapeake, etc., It. Co. v. 
 
 50. Paul v. Locust Point Co.. 70 Reasor, 84 Ky. 369, 1 S. W. 599. 
 Md. 288, 17 Atl. 77. See, also, Brown 
 
 131
 
 M 
 
 Jurisdiction. 
 
 the circuit for which he may be appointed, shall severally have 
 power to grant injunctions to stay proceedings at law. 53 Where 
 these Circuit Courts are not vested with a general chancery juris- 
 diction, a statute conferring the power to grant injunctions upon 
 a judge of the Circuit Court does not confer the same power upon 
 the court. 54 
 
 § 66. Of District Courts. — Jurisdiction is conferred upon the 
 District Courts in several States to grant injunctions. 55 In New 
 Mexico, under the laws of 1889, a district judge can compel can- 
 vassers by injunction to do their ministerial duty of canvassing the 
 returns and declaring the results of elections, and may enjoin 
 them from issuing certificates of election pending anterior proceed- 
 ings by mandamus. 50 In Nebraska it is decided that under the 
 
 53. Mich. Comp. Laws, 1S97, 
 § 514. Office of injunction master 
 abolished in this State and the pow- 
 ers possessed by him conferred upon 
 circuit commissioners. See Toledo A. 
 A. & N. M. R. v. Detroit I,. & N. 
 R. R. Co v 61 Mich. 11, 27 N. W. 715, 
 chapt. 37, Mich. Comp. Laws, 1S97. 
 
 54. Cummings v. Des Moines, etc., 
 R. Co., 36 Iowa, 173. 
 
 55. Arizona.— Rev. Stat. 1001, 
 § 2742. 
 
 Ioiva.— Code of 1897, § 4357 
 
 Kansas.— Gen. Stats. 1905, § 5134. 
 
 Minnesota. — Rev. Laws, 1905, § 92. 
 
 Montana. — Code Civ. Proc. 1895, 
 § 41. 
 
 Oklahoma. — Rev. & Annot. Stats. 
 1903. § 4426. 
 
 Texas. — Const. Art. 5, § 8, as 
 amended Sept, 22, 1891. 
 
 56. Under Laws N. M. T 1889, ch. 
 117, § 1, providing that injunctions 
 may be granted in aid of any suit 
 at law provided that such suit has 
 been begun, it is competent for a 
 district judge, on whom power to 
 compel by mandamus the board of 
 
 county commissioners to canvass all 
 the returns of any election is con- 
 ferred by Laws N. M. T. 1889, ch. 
 135, § 13, to enjoin the commission- 
 ers from issuing certificates of elec- 
 tion pending the proceedings by 
 mandamus which have been insti- 
 tuted before the injunction was 
 granted. In re Sloan, 5 N. M. 590, 
 25 Pac. 930. In Hamilton v. Icard, 
 112 N. C. 589, 17 S. E. 519, Clark, 
 J., said: "The jurisdiction of the 
 application for an injunction till the 
 hearing is specifically restricted by 
 Code, 8 336, to ' the resident judge 
 of the district, or the judge assigned 
 to the district, or holding by ex- 
 change the court i of the district,' or 
 holding a special term in the county 
 where the cause is pending. Id. 
 § 335. It is further provided that, 
 if the judge before whom the order 
 is made returnable fails to hear it, 
 it shall be competent for any judge 
 resident in, or assigned to, or hold- 
 ing by exchange the courts of some 
 adjoining district to hear it upon 
 giving ten days' notice to the parties 
 
 132
 
 Jurisdiction. § GG 
 
 Code a district judge may grant a temporary order of injunction 
 without notice to the adverse party at the time of the commence- 
 ment of the action which becomes effective when the bond required 
 is given and approved by the clerk of the court. 57 In Kansas it has 
 been decided that the District Court is not ousted of its jurisdic- 
 tion to grant an injunction restraining the sale by the county 
 treasurer of certain land by the fact that proceedings are pending 
 in the Supreme Court for a mandamus to compel the appraisers 
 of school lands to appraise the same land. 58 The civil District 
 Court of the parish of Orleans has been held to have no jurisdic- 
 tion to enjoin the proces3 of the criminal District Court of the 
 same parish, 59 upon the general principle that the execution of a 
 judgment should be enjoined by no other court than that from 
 which the writ is sued. 60 The Texas District Court has been held 
 to have no power to enjoin the enforcement of a non-appealable 
 judgment rendered by a justice of the peace; 61 but when a void 
 judgment in a Texas justice's court is for less than $20, no appeal 
 or certiorari can be prosecuted to set it aside, and injunction is the 
 only remedy, and this the district Court has jurisdiction to grant, 
 though the supervision of justices' courts by appeal or certiorari 
 must be in the County Court. 62 It is also decided in this 
 State that where the District Court has obtained jurisdiction of a 
 
 interested. Under section 337, by 59. Arthurs v. Villere, 43 La. Ann. 
 
 stipulation in writing duly signed 414, 9 So. 126, holding that the civil 
 
 by the parties or their attorney, they District Court for the parish of Or- 
 
 may designate any other judge than leans has no authority to enjoin the 
 
 the ones indicated by section 336 to sheriff of the criminal District Court 
 
 hear the application. The above is a for the same parish from executing 
 
 summary of the provisions of the a /?. fa. issued on a money judgment 
 
 Code as to the jurisdiction in such rendered by the latter court in a 
 
 cases. The granting of a perpetual criminal prosecution against a surety 
 
 injunction is vested of course in the on a forfeited appearance bond, 
 judge who tries the cause at the 60. State v. Voorhies, 40 La. Ann. 
 
 final hearing." 1, 3 So. 460; State v. Judge, 39 La. 
 
 57. State v. Baker, 62 Neb. 840, Ann. 619. 
 
 844, 88 N. W. 124, construing § 251 61. Galveston H. & S. A. Ry. Co. 
 
 of the Civil Code. v. Dowe, 70 Tex. 10. 7 S. W. 368. 
 
 58. Schwab v. Wilson, 72 Kan. 62. Gulf C. & S. F. Ry. Co. v. 
 617, 84 Pac. 123. Rawlins, 80 Tex. 579, 16 S. W. 430. 
 
 133
 
 § 66a Jurisdiction. 
 
 cause by reason of an injunction, it is authorized to retain cog- 
 nizance of it for all the purposes of the suit. 63 The full merits of 
 the controversy, as presented by either party, will be adjudicated.* 4 
 
 § 66a. Of County Courts. — In some States power is conferred 
 by the Code upon County Courts to issue injunctions. 65 Under 
 power so conferred in Nebraska a judge of the County Court may 
 grant a restraining order to be of force during the pendency of an 
 application for a temporary injunction which order is not operative 
 after the date specified therein. 66 Under the New York Code of 
 Civil Procedure 67 the power of the county judge to grant an in- 
 junction has been held to exist in the county judge of the county 
 in which the venue is laid and the court intimated that the power 
 would exist in a county judge to act whether the venue was laid 
 in his county or not. 68 And in New York the provision of the act 
 authorizing the election of special county judges and surrogates 
 in certain counties, 69 providing that a special surrogate so elected 
 " shall possess all the powers and perform all the duties which are 
 possessed and can be performed by a county judge out of court " 
 was not repealed by the Code of Civil Procedure. And it was 
 therefore held by the Court of Appeals that a special surrogate, 
 elected for the county of Oneida, had power to grant an injunction 
 in a case where the county judge would have had jurisdiction, 70 
 
 k 
 
 63. Ex parte Allison (Tex. Cr. ger & Cotton's Annot. Codes and 
 1905), 90 S. W. 492. holding that the Stats. 1902, § 923. 
 
 District Court may grant injunc- 66. State v. iireen, 48 Neb. 327, 
 
 tions against gambling houses under 67 N. W. 162. 
 
 the provision of the law (Gen. Laws 67. Section 606, providing that 
 
 29th Leg. p. 372, C. 153) authoriz- "Except where it is otherwise speci- 
 
 ing such procedure against gambling ally prescribed by law, an injunction 
 
 houses. order may be granted by the court 
 
 64. Stein v. Frieberg, 64 Tex. 271, in which the action is brought, or 
 273. Per Willie, J. citing Cham- by a judge thereof, or by any county 
 bers v. Cannon, 4 Tex. 299; Willis v. judge." 
 
 Gordon, 22 Tex. 243; Bourke v. Van- 68. Morris v. Mayor of New York, 
 
 derlip, 22 Tex. 221 ; Witt v. Kauf- 7 N. Y. Supp. 943. 
 
 man, 25 Tex. Supp. 384. 69. Ch. 306, Laws of 1849, as 
 
 65. Neb. Code Civ. Proc. § 252; amended by ch. 108, Laws of 1851. 
 N. Y. Code Civ. Proc. § 606; Ballin- 70. Code Civ. Proc. § 606. 
 
 134'
 
 Jurisdiction. §§ 67, 68 
 
 and that one violating an order so granted was properly adjudged 
 in contempt. 71 
 
 § G7. Of Courts of Common Pleas. — In Pennsylvania, Courts 
 of Common Pleas have original jurisdiction of injunctions in their 
 respective counties. 72 The Court of Common Pleas of the city and 
 county of Philadelphia was vested by the special statutes of 1836 
 and 1857 with the injunctive jurisdiction of Courts of Chancery. 73 
 The Court of Common Pleas in and for the city and county of 
 New York had injunctive jurisdiction in respect to persons there 
 resident co-extensive with that of the Supreme Court. 74 And in 
 Ohio it is provided by law that an injunction may be granted by 
 the Court of Common Pleas or a judge thereof. 70 
 
 § 68. Of probate courts ; of surrogates. — The Illinois statute 
 which gave the County Courts jurisdiction " in all matters of pro- 
 bate settlements of estates of deceased persons and in proceedings 
 by executors, guardians, etc., for the sale of real estate for the 
 purposes authorized by law," conferred upon those courts equitable 
 jurisdiction in a proceeding to distribute a fund created by a will 
 and authorized a County Court to order the share of a legatee to be 
 paid to his assignee for valuable consideration. 76 Under the pro- 
 
 71. Aldinger v. Pugh, 132 N. Y. "County courts in this State are 
 403, 30 N. E. 745, aff'g 57 Hun. 181. superior courts of general jurisdic- 
 
 72. Charties Coal Co. v. Mellon, tion with respect to all matters com- 
 152 Pa. St. 286, 25 Atl. 597; Mur- ing within the purview of their juris- 
 dock v. Walker, 152 Pa. St, 595, 25 diction as given by law. Matthews 
 Atl. 492. v - Hoff, 113 111. 96, and cases there 
 
 73. Walters v. McElroy. 151 Pa. cited. But as to the subject matter 
 St. 549, 25 Atl. 125. it is limited to what is given by posi- 
 
 74 N. Y. Code Civ. Pro. §§ 263, tive law. It could derive none as a 
 
 267. See House v. Clemens, 16 Daly, court either from a will or from the 
 
 3; Humphreys Med. Co. v. Bell, 15 decree of any other court. Leman v. 
 
 Daly, 6; Kimball v. Hewitt, 15 Daly, Sherman, 117 111. 657, 6 N. E. 872. 
 
 124; Rogers v. Hanfield, 14 Daly, By positive law it has jurisdiction in 
 
 039 all matters of probate, etc., etc. And 
 
 75. Bates Annot. Stats. 1905, § in the settlement of estates and the 
 cryi adjustment of the accounts of exec- 
 
 76. Shephard v. Clark, 38 111. utors, etc., it has equitable jurisdic 
 App. 66, 72, where the court said: tion and may adopt equitable forms 
 
 135
 
 § 68 Jurisdiction. 
 
 vision of the Ohio constitution that probate courts may, in addition 
 to enumerated powers, have such other jurisdiction as may be 
 provided by law, the Legislature may authorize probate judges to 
 grant injunctions in cases pending in the Circuit or Common Pleas 
 Courts in the absence from the county of judges of those courts. 77 
 In an early case in Mississippi it was decided that the probate 
 court had no authority or power to enjoin the order of a Court of 
 Chancery and in fact no power to grant injunctions. 78 The New 
 Mexico Organic Act, which provided that the judicial power shall 
 be vested in a Supreme Court, District Court, probate courts and 
 justices of the peace, and that the jurisdiction of the several courts 
 " shall be as limited by law," did not confer chancery jurisdiction 
 on probate courts. 79 Where a suit was brought by the heirs and 
 administrator of A. against his widow, in the Circuit Court of 
 Iowa, to determine her rights under an antenuptial contract, it was 
 held, that the District Court had jurisdiction, pending the action, to 
 enjoin the heirs and administrator from interfering with her right 
 of temporary homestead in land occupied by her and her husband 
 as such during the marriage; and such jurisdiction was not 
 affected by the fact that she asked other relief to which she was not 
 entitled. 80 In New York surrogates have been to some extent vested 
 by statute with the injunctive powers of county judges. 81 In New 
 
 of procedure. Millard v. Harris 119 tion in cases where equities are in- 
 Ill. 198, 10 N. E. 387; In re Corring- volved. Xor would a due regard to 
 ton, 124 111. 366, 16 N. E. 252. public policy and the protection of 
 
 77. Ohio Rev. St. § 5573; Phelon decedents' estates justify the grant 
 v. Pittsburg, etc., R. Co.. 5 Ohio C. of such extensive powers to Probate 
 Ct. 545. Courts as constituted in New 
 
 78. American Colonization Soci- Mexico." 
 
 ety v. Wade, 8 Sm. & M. (Miss.) 80. Collins v. Collins, 72 Iowa. 
 
 610. 104, 33 N. W. 442. 
 
 79. Perea v. Barela, 61 N. M. 239, 81. Laws 1849, ch. 306, as 
 27 Pac. 507, where tne court said: amendea by Laws 1851, ch. 108, gave 
 " The privision of the Act of Con- the surrogates of certain counties all 
 gress that the Supreme Court and the powers possessed by a county 
 District Courts respecively of every judge out of court. Before the adop- 
 Territory shall possess chancery as tion of the Code of Civil Procedure, 
 well as common law jurisdiction, ex- these special surrogates had power 
 eludes the idea that the Probate to grant injunctions in actions in the 
 Courts shall have exclusive jurisdic- Supreme Court; and section 606 of 
 
 136
 
 Jurisdiction. §§ 68a, 68b 
 
 York the statute of 1837 confined the authority of a surrogate's 
 court to issue injunctions to executors, administrators and guar- 
 dians and to cases where a citation for their removal had been 
 issued. The present Code of Civil Procedure which seems to 
 extend such authority, 82 provides that a surrogate may enjoin, by 
 order, an executor, administrator, testamentary trustee or guar- 
 dian, to whom a citation or other process has been issued from his 
 court, from acting as such, until the further order of the court. 83 
 
 § 68a. Of court commissioners. — Under a statute conferring 
 power upon a court commissioner to grant injunctions subject to 
 the exception that " an injunction to suspend the general and 
 ordinary business of a corporation shall not be granted except 
 by the court or presiding judge thereof, it has been decided that 
 an injunction to restrain a holder of stock in an incorporated com- 
 pany from voting upon such stock at an election of directors for 
 said company is not within the exception;" 8 * nor is an injunction 
 to restrain a municipality from executing and delivering tax 
 deeds, 85 nor an injunction to restrain a town from laying out and 
 constructing an expensive highway, without having any funds 
 in its treasury or any legal authority to incur an indebtedness for 
 that purpose. 8 * 
 
 § 68b. Statutory provisions of a general character. — In 
 several of the States statutes or constitutional provisions are in 
 force which provide in general terms that the order or writ may 
 be granted by the court in which the action is brought or by a judge 
 thereof and that when granted by a judge it may be enforced as 
 
 that Code expressly conferred juris- 82. Redtield's Surr. Pr., 4th Ed., 
 
 diction on county judges to grant p. 58; Breslin v. Smith, 3 Dem. 251. 
 
 such injunctions. Held that, after 83. >>. Y. Code Civ. Proc, § 2481. 
 
 the adoption of said Code said sur- 84. Reed v. Jones, 6 Wis. 680. 
 
 rogates had power to grant such in- 85. Doty v. Village of Menasha 
 
 junctions. Aldinger v. Pugh. 1.32 N. 14 Wis. 75. 
 
 Y. 403, 30 N. Y. 745, aff'g 10 N. Y. 86. Bay Land & Imp. Co. v. Town 
 
 Supp. 684. See, also, Ross v. Wigg, of Washburn, 79 Wis. 423, 48 N. W. 
 
 101 N. Y. 640. aff'g 36 Hun, 107. 492. See § 2780, Wis. Rev. Stats. 
 
 137
 
 § 69 JUKISDICTION. 
 
 the order of the court. 87 By the New York Code it is provided that 
 except when it is otherwise specially prescribed by law, an injunc- 
 tion order may be granted by the court in which the action is 
 brought, or by a judge thereof, or by any county judge; and where 
 it is granted by a judge, it may be enforced as the order of the 
 court. 88 In Connecticut any judge of any court of equitable juris- 
 diction may, on motion, grant and enforce writs of injunction 
 according to the course of proceedings in equity in all actions for 
 equitable relief where such relief is properly demandable, return- 
 able to any court, when such court is not actually in session, 89 
 whether in term time or vacation. 
 
 § 69. Conditional and auxiliary jurisdiction. — In many States 
 a conditional jurisdiction is conferred upon a judge or a court 
 official to grant an injunction. So in Virginia, where an inferior 
 court having regular injunctive jurisdiction refuses to exercise it, 
 a judge of the Supreme Court may, under the authority of the 
 constitution, grant the injunction, though such power could not 
 be exercised by his court sitting in banc. 90 Under the Civil Code of 
 Arkansas if the county probate judge and the judge of the circuit 
 refuse to grant an injunction the judges of the Supreme Court 
 are authorized to grant one until the cause is heard on its merits. 91 
 It is also provided in this State that when the circuit judge is 
 absent the county judge may issue an injunction. 92 And it is also 
 provided by statute in this State that in the absence of the 
 chancellor from the county an injunction may be granted by the 
 circuit judge after the action has been commenced, but not before. 93 
 In Illinois it is provided that when no judge authorized to grant 
 
 87. Iowa Code 1897, § 4357; La. 91. Ex parte Hays, 26 Ark. 510. 
 Const. & Rev. Laws, 1904, § 96; Nev. 92. Ark. Dig. Stats., 1894, § 3780. 
 Comp. Laws, 1900, § 3206; No. Dak. 93. Moody v. Lowrimore (Ark. 
 Rev. Codes, 1899, § 5343. 1905), 86 S. W. 400. holding under 
 
 88. IN. Y. Code Civ. Proc., § 606. Kirby's Dig., § 1294, that where a 
 t>9. Conn. Gen. Stats., 1902, § petition asks for no other relief than 
 
 1^02. an injunction the circuit judge has 
 
 90. Fredenheim v. Rohr, 87 Va. no jurisdiction to grant it. 
 764, 13 S. E. 193, 266. 
 
 138
 
 Jurisdiction. § 69 
 
 writs of injunction is present in the county, or being present, is 
 unable or incapacitated to act, a master of chancery in such county 
 may order the issuing of such writ. 94 In Missouri an injunction 
 may be granted by probate court or judge thereof or County Court 
 or judges thereof, in vacation, upon satisfactory evidence that there 
 is not then any Circuit Court in session or any judge thereof 
 within the county. 95 In Kansas a probate judge may grant a 
 restraining order to be of the same effect as a like order made by 
 a judge of the District court, in the absence of the latter judge 
 from the county or in case he is disqualified or prevented by sick- 
 ness from acting. 96 In Ohio the probate judge of the county may 
 grant injunctions in actions pending in either the Court of Com- 
 mon Pleas or the Circuit Court of the county in the absence from 
 the county of the respective judges of such courts. 97 In Oklahoma 
 a probate judge may grant an injunction in absence of district 
 judge from county. 98 In Michigan in case of absence, sickness or 
 disqualification of a circuit judge of a district the circuit judge 
 of an adjoining district may under certain conditions issue an 
 injunction. 99 In Virginia and West Virginia when a circuit or 
 corporation court, or a judge thereof, shall refuse to award an 
 injunction, a copy of the proceedings in court, and the original 
 papers presented to the judge in vacation, with his order of 
 refusal, may be presented to a judge of the Court of Appeals who 
 may thereupon award the injunction. 1 Under this provision it is 
 decided that no original jurisdiction is conferred upon one of the 
 judges of this court to award an injunction except in the case 
 where the application has been made, first to a judge of an inferior 
 court, either in term or in vacation and has been refused. 2 Where 
 
 94. 111. Rev. Stats., 1903, ch. 69, 99. Mich. Comp. Laws, 1897, § 
 § 2, p. 1041. 555. 
 
 95. Mo. Rev. Stats.. 1899, § 3628. 1. Va. Annot. Code, 1904, § 3438; 
 
 96. Kan. Gen. Stats., 1905, § 5134. West Va. Annot. Code, 1906, § 4010. 
 
 97. Bates Annot. Stats., Ohio, 2. Fredenheim v. Rohr, 87 Va. 764, 
 1905. § 5571. 769, 13 S. E. 193, citing Mayo v. 
 
 98. Phelon v. Pittsburgh, etc., R. Haines, 2 Munf. (Va.) 423; Ran- 
 Co., 5 Ohio C. Ct. 545. dolph v. Randolph, 6 Rand. (Va.) 
 
 98. Okla, Rev. & Annot. Stats., 215. 
 1903, § 4426. 
 
 139
 
 §§ 70, 71 Jurisdiction. 
 
 a statute confers such conditional jurisdiction it can not be con- 
 strued as conferring powers beyond those expressly defined. So 
 where a statute confers power on the clerk of a court to grant a 
 preliminary restraining order in the absence of the circuit judge 
 from the county it will not be construed as authorizing him to 
 grant a mandatory injunction. 3 
 
 § 70. Jurisdiction in vacation. — Generally by force of statute 
 the judges of courts having injunctive jurisdiction may grant 
 injunctions in vacation. 4 In Iowa the word " vacation," within 
 the meaning of the statute of that State has been construed to mean 
 such time as the court is not actually in session, and is not to be 
 restricted to the time between terms. 5 The requirement that a 
 judge who in vacation grants an injunction must indorse the order 
 on the petition, is directory merely. The fact that he writes the 
 order on a separate piece of paper does not vitiate the injunction. 6 
 In Mississippi it is provided by Code that an injunction, if the 
 chancellor or judge consider it proper, may be granted, issued, and 
 executed on Sunday. 7 Under the English practice an injunction 
 was always granted in open court, except in cases of great emer- 
 gency, shown to be so by petition and affidavit, under which cir- 
 cumstances they were allowable in vacation, if the petition was 
 accompanied by a certificate that the bill was filed. 8 
 
 § 71. Jurisdiction at chambers. — The jurisdiction of a judge 
 at chambers is merely incidental to and cannot go beyond the 
 jurisdiction of the court to which he belongs. It has been held 
 
 3. Commonwealth v. Combs, 27 Missouri — Rev. Stats., 1899, § 
 Ky. Law Rep. 751, 86 S. W. 697. 3627. 
 
 4. Arizona. — Rev. Stats., 1901, § 5. Thompson v. Benepe, 67 Iowa, 
 2742. 79, 24 N. W. 601. 
 
 Illinois.— Rev. Stats.. 1903, ch. 69, 6. Jordan v. Wapello County Cir- 
 
 § 1, p. 1041. cuit Court, 69 Iowa, 177, 28 N. W. 
 
 Indiana. — Thornton's Annot. Civ. 548, construing Iowa Code, § 3394. 
 
 Code, § 961, 1228. 7. Miss. Code. 1906, § 992. 
 
 Maine. — Rev. Stats., 1903, ch. 79, 8. Commercial Bank of Rodney, v. 
 
 § 35, p. 683. State, 4 Sm. & M. (Miss.) 439, 514. 
 
 Mississippi.— Code of 1906, § 992. 
 
 140
 
 Jurisdiction. § "1 
 
 that under the Ohio constitution which provides " that the several 
 judges of the Supreme Court shall respectively have such juris- 
 diction at chambers or otherwise as may be directed by law," 
 the Legislature of that State cannot confer jurisdiction on a judge 
 of the Supreme Court at chambers to grant or dissolve an injunc- 
 tion pending in another court because the court itself has no such 
 original jurisdiction. 9 And under the Montana constitution a 
 district judge, though authorized to " hold court for any other 
 district judge," has not the incidental power to grant an injunction 
 when so sitting in another district than his own. 10 In Nebraska 
 it is decided that under the Code a judge of the District Court 
 sitting at chambers may grant a temporary order of injunction 
 without notice to the adverse party at the time of the commence- 
 ment of the action, which becomes effective when the bond required 
 is given and approved by the clerk of the court. 11 In Oklahoma 
 it has been decided that the district judge at chambers may, at 
 any time subsequent to filing of the petition and issuance of sum- 
 mons, grant a temporary injunction restraining interference with 
 the possession of successful contestants by those who were unsuc- 
 cessful in a proceeding before the land department. 12 In South 
 Carolina any justice of the Supreme Court at chambers may exer- 
 
 9. Pittsburgh, etc., R. Co. v. and adjourns the trial of a cause 
 Hurd, 17 Ohio St. 144, 146; Kent from Saturday until Monday, when 
 t. Ma'hafTy, 2 Ohio St. 498. he proceeds with it, he is not in the 
 
 10. Const. Mont. art. 8. § 12, pro- meantime a judge of the court in 
 vides that ■ the State shall be di- that district within the meaning of 
 Tided into judicial districts, in each Code Civil Proc. Mont., § 172, which 
 of which there shall be elected by the provides that an injunction may be 
 electors thereof one judge of the Dis- granted " by the court in which the 
 trict Court. . . . Any judge of action is brought or by the judge 
 the District Court may hold court for thereof," and hence he cannot srrant 
 any other district judge, and shall an injunction in chambers. Wallace 
 do so when required by law." Held, v. Helena El. Ry. Co.. 10 Mort. 24, 
 that this section does not of itself 24 Pac. 626, 25 Pac. 278. See, also, 
 confer authority to grant an injunc- In re iNeagle, 39 Fed. 833, 855, 856. 
 tion in chambers on a judge who is 11. State v. Baker, 62 Neb. 840, 
 holding court in a district other than 845, 88 N. W. 124. decided under § 
 his own; and where a district judge 251 of the Civil Code. 
 
 is holding court for another, as al- 12. Cox v. Garrett, 7 Okla. 375, 54 
 
 lowed by Const. Mont., art. 8, § 12, Pac. 546. 
 
 141
 
 §§ 72, 73 Jurisdiction. 
 
 cise the power conferred upon that court by the constitution to 
 grant an injunction in an action which is not pending in that 
 court. 13 In Montana it is provided by the Code that a judge of 
 the District Court may at chambers hear and determine writs of 
 injunction. 14 
 
 § 72. Trial court's jurisdiction pending appeal. — Pending 
 appeal by defendant from a judgment enjoining the operation of 
 certain machinery on certain premises, it is in the discretion of 
 the trial court to stay enforcement of the judgment, 15 but in New 
 York not in its power to continue a temporary injunction pending 
 an appeal by plaintiff from a judgment adverse to him. 16 The 
 Special Term of the Superior Court of New York city had power, 
 pending an appeal from its judgment enjoining defendant from 
 doing certain acts, to suspend the operation of the judgment during 
 the appeal, upon defendant's giving security for the damages 
 which might result. 17 
 
 § 73. Jurisdiction of the High Court of Justice. — By virtue 
 of the English Judicature Act of 1873 the High Court of Justice 
 is vested with the extensive jurisdiction of granting injunctions 
 conferred on the common law courts by the Common Law Pro- 
 cedure Act of 1854, sections 79 and 81; and can be exercised by 
 any judge of the High Court whenever justice will be done, having 
 regard to settled legal principles. 18 Section 25 of the Judicature 
 Act did not alter the former practice as to injunctions but is 
 intended to get rid of certain technical objections. 19 The words 
 " just and convenient " in that section are to be construed as if 
 they were " just as well as convenient;" 20 they do not mean that 
 
 13. Salinas v. Aultman, 49 S. C. 17. Genet v. Delaware Canal Co., 
 378. 27 S. E. 407, construing S. C. 113 N. Y. 472, 21 N. E. 390. 
 Const. 1895, art. 5, §§ 4, 25. 18. Beddow v. Beddow, L. R. 9 Ch. 
 
 14. Mont. Code Civ. Proe., 1895, D. 89. 
 
 § 171. 19. Fletcher v. Rodgers. 27 W. 
 
 15. Pach v. Geoffroy (Sup.), 19 Rep. 97; Gaskin v. Bans, L. R. 13 
 N. Y. Supp. 583. Ch. D. 324. 
 
 16. Spears v. Mathews, 66 N. Y. 20. Day v. Brownrigg, L. R. 10 
 127. Ch. D. 294. 
 
 142
 
 Jurisdiction. § 74 
 
 the court is to grant an injunction merely because the court deems 
 it convenient to do so, but that the court should grant an injunc- 
 tion for the protection of rights and the prevention of injury 
 according to legal principles. 21 In 1880 it was decided that the 
 court had jurisdiction under section 25 of the Judicature Act, 
 greater perhaps than before, to restrain by injunction the publi- 
 cation of a. libel injurious to trade ; and that in order to obtain the 
 injunction, plaintiff need not prove actual damage but only that 
 the libel was calculated to injure his trade. 22 Where damages are 
 claimed in substitution for 'an injunction to restrain a wrongful 
 act commenced before the issue of the writ and continued after- 
 wards, if the wrongful act has come to an end before the trial, the 
 court has jurisdiction under section 3 of Lord Cairns' Act to assess 
 the whole of the damages accrued. Lord Cairns' Act is not affected 
 by the Judicature Acts. 21 
 
 § 74. Jurisdiction of Quebec courts ; of British Columbia 
 courts. — The courts and judges of the Province of Quebec have 
 the power which existed in France under the name of refere, and 
 which exists in England and United States under an injunction, 
 to restrain parties to a suit from doing anything that might change 
 the position of the parties from what it was at the beginning of 
 the suit. 24 The Provincial Act of 1878 provides that the Superior 
 Court in term, or any judge thereof in vacation or during term, 
 may grant a writ of injunction ; 25 but under this act it seems that 
 the Superior Court cannot enjoin a Montreal suitor before it from 
 bringing another equity suit into Ontario. 26 In British Columbia an 
 injunction may be granted by an interlocutory order of the Supreme 
 Court in all cases in which it shall appear to the court to be just 
 or convenient that such order should be made, and any such order 
 
 21. Aslatt v. Southampton, L. R. 24. Carter v. Breakey, 2 Quebec 
 16 Ch. D. 143, 148. L. Rep. 232; Bourgouin v. Montreal, 
 
 22. Thomas v. Williams, L. R. 14 etc., R. Co., 19 L. Can. Jur. 57. 
 Ch. D. 864; but see Dicks v. Brooks, 25. 41 Vic. ch. 14 (Que.). 
 
 L. R. 15 Ch. D. 22. 26. Parent v. Shearer, 23 L. Can. 
 
 23. Fritz v. Hobson, L. R. 14 Ch. Jur. 42. 
 D. 542. 
 
 143
 
 §75 
 
 Jukisdiction. 
 
 may bo made either unconditionally or upon such terms and con- 
 ditions as the court shall think just. 27 
 
 § 75. Extra-territorial jurisdiction. — Jurisdiction by injunc- 
 tion does not extend beyond the State in which the injunction was 
 issued unless the court has acquired jurisdiction of the person of 
 defendant. 28 Thus it has been held that a court of equity in 
 Georgia cannot enjoin non-residents from doing acts of a personal 
 character beyond that State as they could not be served with process 
 outside of the State nor be punished for violation of the in- 
 junction. 25 * And an order will not ordinarily be granted staying 
 plaintiff from pursuing in the courts of another State land situated 
 therein, belonging to defendant, as such an order would be a viola- 
 tion of the comity between the courts of different States. 30 And a 
 
 27. Rev. Stats, of Brutish Colum- 
 bia, 1897, ch. 56, § 14, p. 572. 
 
 28. Western U. Tel. Co. v. Pacific, 
 etc., Tel. Co., 49 111. 90, where the 
 court said: " The jurisdiction of our 
 courts is only co-extensive with the 
 limits of our State. They cannot le- 
 gally send their process into other 
 States and jurisdictions for service. 
 If the exercise of such a jurisdiction 
 were attempted and an injunction 
 granted, and it should be disobeyed 
 by persons in Indiana, this court 
 would be powerless to enforce the in- 
 junction by attachment, and hence 
 the effort to exercise such a power 
 would be readily defeated. 
 
 The courts of this State cannot re- 
 strain citizens of another State who 
 are beyond the limits of this State 
 from performing acts in another 
 State, or elsewhere outside of and be- 
 yond the boundary lines of this State. 
 Any other practice would necessarily 
 lead to a conflict of jurisdiction." 
 
 29. Hazlehurst v. Savannah, etc., 
 R. Co., 43 Ga 13 ; Adams v. Lamar. 8 
 Ga. 82; Dearing v. Charleston Bank, 
 
 5 Ga. 497. The general rule is that 
 a grant of administration has no legal 
 operation outside of the State from 
 whose jurisdiction it was derived, 
 and that no suit can be maintained 
 by or against an executor or admin- 
 istrator in his official capacity in the 
 courts of any othar State. Fugate v. 
 Moore. 86 Va. 1045, 1047, 11 S. 
 E. 1063; Andrews v. Avory, 14 
 Gratt. 229; Doolittle v. Lewis, 7 
 Johns. Ch. 45; Vaughan v. Nor- 
 thup, 15 Pet. 1, 10 L. Ed. 639; 
 Harvey v. Richards, 1 Mason, 381. 
 If, however, an executor or admin- 
 istrator goes into another State and 
 collects assets oi his decedent there 
 he may be sued in the courts of that 
 State by any creditor there and held 
 liable to the extent of the assets so 
 collected. Fugate v. Moore, 86 Va. 
 1045, 1047, 11 S. E. 1063. 
 
 30. Durant v. Pierson, 12 N. Y. 
 Supp. 145, distinguishing Bowers v. 
 Durant, 43 Hun, 348. See Genet v. 
 Delaware Canal Co., 29 N. Y. St. 
 Rep. 954. 
 
 144
 
 Jurisdiction. § 75a 
 
 judge cannot while in another State issue an injunction which will 
 be valid within his own State or elsewhere. 31 The fear entertained 
 by a chancellor of New York that to enjoin proceedings in another 
 State might lead to retaliation and so give rise to serious conflicts 
 of jurisdiction, 32 has not, however, largely prevailed nor prevented 
 the granting of such injunctions. 33 The inconvenience of ascertain- 
 ing facts and of going to another State to defend the action there, is 
 not sufficient ground to enjoin the prosecution of an action there. 3 * 
 
 § 75a. Same subject; jurisdiction dependent on location of 
 subject matter. — The jurisdiction of the court to grant an injunc- 
 tion may be dependent upon the location of the subject matter in 
 respect to which the injunction is sought. So it has been decided 
 that a suit to restrain defendant from removing earth is an action 
 for " injury to real property " within the meaning of a statute 
 requiring such actions to be brought in the county in which the 
 subject of the action or some part thereof is situated. In such a 
 case a court of another county has no jurisdiction to issue an in- 
 junction. 35 And in New York it is decided that an action brought 
 to restrain the erection of a bridge over a public highway to con- 
 nect buildings of the defendant standing on opposite sides of such 
 highway, on the ground that such erection will injure property of 
 the plaintiff by cutting off the view and light and air therefrom 
 is local and not transitory and must be tried in the county where 
 the real property is situated. 36 But where the relief required does 
 not require the court to deal directly with the property itself, the 
 proceeding does not affect real estate, within the meaning of the 
 Chancery act, and the court having the parties in interest all before 
 it, may proceed, although the land to which the controversy relates 
 
 31. Price v. Bayless, 131 Ind. 437, U. S. 107, 121, 10 S. Ct. 269, 33 L. 
 31 N. E. 88. *.d. 538. 
 
 32. Mead v. Merritt. 2 Paige, 402, 34. Donnelly v. Morris, 59 N. Y. 
 404. Super. 557. 
 
 33. Vail v. Knapp. 49 Barb. 299. 35. Cox v. Railway Co., 55 Ark. 
 305; Dinsmore v. Neresheimer, 32 454, 18 S. W. 630. 
 
 Hun, 204; Erie R. Co. v. Ramsey, 45 36. Leland v. Hathorn, 42 N. Y. 
 
 N. Y. 637; Cole v. Cunningham, 133 547, decided under Code Civ. Proc., 
 
 § 123. 
 
 145 
 
 10
 
 § 76 Jurisdiction. 
 
 may lie without the jurisdiction of the court. 37 And in this con- 
 nection it has been decided that in case of a pure bill of injunction 
 to restrain a sale of real estate in one county, if the plaintiff insti- 
 tutes his suit in another county, where the defendants answer 
 and do not object to the jurisdiction, the plaintiff cannot after- 
 wards make the objection, and the court may under its general 
 jurisdiction, hear and determine the case. 38 Again, it has been 
 decided that a bill in equity to enjoin a trespass upon realty by 
 felling timber, is not such a suit respecting the title to land as 
 must be brought in the county where the land lies, but the proper 
 venue in such a case is the county of the residence of the defendant 
 against whom substantial relief is prayed. 39 
 
 § 76. Same subject; receivers. — A court of equity which has 
 appointed a receiver of lands situated in another State or jurisdic- 
 tion has no power to enjoin a citizen of that jurisdiction from levy- 
 ing an attachment on such lands, unless he is a party either in 
 person or by representation to the litigation in which the receiver 
 was appointed; but where a party who has joined in the receiver- 
 ship litigation and has been active in extending the receivership 
 to the lands in question causes suit to collect a debt to be brought 
 in the jurisdiction where the lands are situated and thereby ob- 
 tains a lien on the lands, the court has authority to enjoin him 
 from enforcing the lien or in any way interfering with the re- 
 ceiver's disposition of the property. 39a 
 
 37. Hayes v. O'Brien. 149 111. 403, State or sovereignty from causing a 
 410, 37 N. E. 73, 18 L. R. A. 750. levy to be made on lands which are 
 Per Shope, J. See Chicago, R. I. & situated in the foreign State, and 
 P. R. Co. v. Wynkoop (Kan. 1906), beyond its territorial jurisdiction. 
 85 Pac. 595. because it has appointed a receiver of 
 
 38. Muller v. Bayly, 21 Gratt. such property, unless the person so 
 (Va.) 521. enjoined is a party, either in person 
 
 39. Powell v. Cheshire, 70 Ga. 357, or by representation, to the litigation 
 48 Am. Rep. 572. in which the receiver was appointed. 
 
 39a. Schindelholz v. Cullum, 55 Courts of chancery, doubtless, have 
 Fed. 885, per Thayer, J. : " For pres- power to compel persons subject to 
 ent purposes it will suffice to say their jurisdiction to execute convey- 
 that in our opinion a court has no ances of property located in a foreign 
 power to enjoin a citizen of a foreign State which will generally be re- 
 
 146
 
 Jurisdiction. 
 
 77 
 
 §77. Same subject; exceptions. — Though the courts of one 
 State or country have no authority to control proceedings in the 
 courts of another, they can control all persons and things within 
 
 spected by the courts of the latter 
 sovereignty if they are executed in 
 conformity with their laws. Phelps v. 
 McDonald, 92 U. S. 298-308, 25 L. Ed. 
 473 ; Miller v. Sherry, 2 Wall. 237-249, 
 17 L. Ed. 827; Watkins v. Holman, 16 
 Pet. 25-57, 10 L. Ed. 873; Mitch- 
 ell v. Bunch, 2 Paige, 60G-G15. By 
 means of such orders, and convey- 
 ances made thereunder, a court may 
 be able to vest us receiver with the 
 title to realty situated in a foreign 
 jurisdicion, which will be there recog- 
 nized as valid. But an order ap- 
 pointing a receiver of realty has no 
 extra-territorial operation, and can- 
 not affect the title to real property 
 wdiich is located beyond the jurisdic- 
 tion of the court by which the order 
 was made. Booth v. Clark, 17 How. 
 322-328, 15 L. Ed. 164. Such orders, 
 therefore, only operate in personam, 
 and upon those persons who are so re- 
 lated to the court, either as parties to 
 the litigation, or by virtue of residence 
 and citizenship, that they are bound 
 to yield obedience to its orders. In con- 
 formity with these views we are led 
 to conclude that John K. Woodburn 
 acquired a valid lien on the property 
 of the land company in the territory 
 of New Mexico, which the Circuit 
 Court for the district of Colorado 
 was without power to divest. He was 
 in nowise concerned, as a party or 
 otherwise, in the Colorado suit 
 wherein the receiver was appointed. 
 It is a doctrine which has recently 
 been approved by the Supreme Court 
 of the United States that the courts 
 of one State or sovereignty have au- 
 thority over their own citizens to re- 
 
 strain them from prosecuting suits 
 by attachment in a foreign jurisdic- 
 tion against other citizens of the 
 home State or sovereignty, w ? hen the 
 maintenance of such suit in the for- 
 eign jurisdiction is contrary to equity 
 and good conscience, and tends to 
 defeat the policy of local insolvent 
 laws. The authority in question is 
 said to be a part of the inherent 
 power of a court of chancery over 
 persons subject to its jurisdiction. 
 But to warrant its exercise the com- 
 plaint must show a clear equity. The 
 courts of one State or sovereignty 
 will not restrain a citizen of that 
 State from suing another citizen by 
 attachment in a foreign jurisdiction 
 unless such proceeding clearly con- 
 travenes the policy of some local law 
 or statute to which both parties owe 
 obedience by reason of their common 
 citizenship. Cole v. Cunningham, 133 
 U. S. 107, 10 S. Ct. 2G9, 33 L. Ed. 
 538; Dehon v. Foster, 4 Allen, 545; 
 Warner v. Jaffray, 96 N. Y. 248; 
 Jenks v. Ludden, 34 Minn. 482-487, 
 27 N. W. 188; Barnett v. Kinney, 
 147 U. S. 4/6, 13 Sup. Ct. 
 403, 37 L. Ed. 247. In another class 
 of ca?-s which are chiefly relied upon 
 to sustain the decree of the Circuit 
 Court, it is held that courts which 
 have appointed receivers over prop- 
 erly situated in a foreign jurisdic- 
 tion may either restrain or punish 
 persons who interfere with the re- 
 ceiver's possession of such property, 
 even though the interference consists 
 in attaching it under process ob- 
 tained from some court in the for- 
 eign State. Vermont & C. R. Co. 
 
 147
 
 §77 
 
 Jurisdiction. 
 
 their own territorial limits, and if both parties to a suit in a foreign 
 country reside within the territory of another, courts of equity in 
 the latter may act in personam upon them and enjoin them from 
 proceeding further in the suit. 40 Where the necessary parties are 
 before a court of equity it is immaterial that the subject of the 
 controversy, whether it be real or personal property, is beyond 
 the territorial jurisdiction of the tribunal. It can compel tho 
 defendant to do, according to the lex loci rei sitae, all that he could 
 do voluntarily to give full effect to the decree against him. With- 
 out regard to the situation of the subject-matter, the court con- 
 siders the equities between the parties, and will decree in personam 
 according to those equities and enforce obedience to such decree 
 by process in personam.* 1 So in a case in Pennsylvania it is 
 decided that where the subject matter is situated within another 
 
 v. Vermont Cent. R. Co.. 46 Vt. 792; 
 Chafee v. Quidnick Co., 13 R. I. 442; 
 Sercomb v. Catlin, 128 111. 550, 21 
 N. E. 606; Langford v. Langford, 5 
 Law. J. Ch. (N. S.) 60. In all of 
 these cases last cited, however, the 
 person proceeded against for inter- 
 fering with the receiver's constructive 
 possession of property located in a 
 foreign jurisdiction was either a 
 party to the litigation in which the 
 receiver had been appointed, or in 
 privity with a party, or was other- 
 wise subject to the jurisdiction of 
 the court by virtue of his residence 
 or citizenship. It is also worthy of 
 notice that the property involved was 
 personalty, and that the owner 
 thereof was domiciled in the State 
 where the receivership was created. 
 In considering the question of a re- 
 ceiver's title to property located in 
 a foreign jurisdiction a distinction 
 has sometimes been taken between 
 personalty and realty, but, as the 
 case at bar simply involves the right 
 to attach realty, situated in a for- 
 eign State, we need not stop to in- 
 
 quire whether the distinction is well 
 founded, or whether the power of a 
 court to restrain persons from inter- 
 meddling with a receiver's possession 
 of personal property thus situated is 
 in any respect, or for any reason, 
 more extensive than its power to re- 
 strain a like interference with real 
 property." 
 
 40. Story, Eq. Jur. §§ 899, 900, as 
 adopted by the court in Cole v. Cun- 
 ningham, 133 U. S. 107, 119, 10 S. 
 Ct. 269, 33 L. Ed. 538. 
 
 41. United States. — Phelps v. Mc- 
 Donald, 99 U. S. 298, 308, 25 L. Ed. 
 473. Per Mr. Justice Swayne. 
 
 Illinois. — Alexander v. Tblleston 
 Club, 110 111. 65. 
 
 Missouri. — State v. Zachritz, 166 
 Mo. 307, 65 S. W. 999, 89 Am. St. 
 Rep. 711. 
 
 New Hampshire. — Great Falls Mfg. 
 Co. v. Worster, 23 N. H. 462. 
 
 Pennsylvania. — Schmaltz v. York 
 Mfg. Co., 204 Pa. St. 1, 52 Atl. 522; 
 Clad v. Paist, 181 Pa. St. 148, 37 
 Atl. 194; Jennings Bros. v. Beale, 
 158 Pa. St. 283, 27 Atl. 948. 
 
 148
 
 JUKISDICTION. 
 
 §77 
 
 State or county, but the parties are within the jurisdiction of the 
 court, a suit may be maintained and a remedy granted which 
 directly affect and operate upon the person of the defendant and 
 not upon the subject matter, although the subject matter is referred 
 to in the decree, and the defendant is ordered to do or to refrain 
 from doing certain acts towards it. It was declared that while the 
 situs of property in dispute is in another State a decree of a court 
 of this State cannot operate upon or directly affect it, yet a court 
 of equity in this State, having jurisdiction of all the parties can 
 determine their rights to the property and by proper process 
 enforce them in personam. 43 And a defendant properly sued may 
 be enjoined from committing waste upon, or otherwise impairing 
 the value of, property in which the complainant is interested, even 
 though the property is located abroad, provided a case for the inter- 
 position of a court of equity is made out. 44 A court of one State 
 may also enjoin attachment proceedings in another State by a 
 
 In Pennyroyal v. NefT, 95 U. S. 
 714, 723, 24 L. £d. 5G5, Field, J., said: 
 "The State, through its tribunals, may 
 compel persons domiciled within its 
 limits to execute in pursuance of 
 therir contracts respecting property 
 elsewhere situated, instruments in 
 such form and with such solemnities 
 as to transfer the title, so far as 
 such formalities can be complied 
 with; and the exercise of this juris- 
 diction in no manner interferes with 
 the supreme control over trie prop- 
 erty by the State within which it is 
 situated. Penn v. Lord Baltimore, 1 
 Ves. Sen. 444; Massie v. Watts, 6 
 Cranch, 148; Watkins v. Holman. 1C 
 Pet. 25, 10 L. Ed. 873; Corbett v. 
 Nutt. 10 Wall. 404, 19 L. Ed. 970. 
 
 " The jurisdiction of equity by 
 way of injunction is strictly in 
 personam. — It is well settled that 
 courts of equity may decree the 
 specific performance of contracts re- 
 specting land situated beyond the 
 
 jurisdiction of the State where the 
 suit is brought. The ground of this 
 jurisdiction, as said by Story, is, 
 that courts of equity have authority 
 to act upon the person; and although 
 they cannot bind the land itself by 
 their decree, yet they can bind the 
 conscience of the party in regard to 
 the land and compel him to per- 
 form his agreement according to 
 conscience and good faith." Alexan- 
 der v. Tolleston Club, 110 111. 65, 77. 
 Per Sheldon, J., citing 2 Story Eq. 
 Jurs. § 743. 
 
 43. Schmaltz v. York Mfg. Co., 
 204 Pa. St. 1, 52 Atl. 542, 93 Am. 
 St. Rep. 782, 59 L. R. A. 907. See 
 Allen v. Buchanan, 97 Ala. 399, 11 
 So. 777, 38 Am. St. Rep. 187; Car- 
 roll v. Lee, 3 G. & J. (Md.) 504; 
 Kendall v. McClure Coke Co., 182 
 Pa. St. 1, 37 Atl. 823. 
 
 44. Marshall v. Turnhull, 32 Fed. 
 124. 
 
 149
 
 3 77 
 
 Jurisdiction. 
 
 creditor against an insolvent debtor both of whom are citizens of 
 the former State, if there is nothing in the law or policy of the 
 State where the attachment is made opposed to those of the other. 45 
 The rule just declared has been often applied by the courts of tho 
 domicile against the attempts of its citizens to defeat the operation 
 of its laws to the injury of others, by doing acts abroad which 
 would be illegal at home. 46 A court vested with general equity 
 
 45. Cole v. Cunningham, 133 U. 
 S. 107, 10 S. Ct. 269, 33 L. Ed. 538, 
 where it was held that such an in- 
 junction was not a violation of the 
 federal Constitution requiring that 
 full faith and credit shall be given 
 in each State to the judicial pro- 
 ceedings of every other State. Art. 
 4, §§ 1, 2. See, also, Story, Eq. Jur., 
 §§ 899, 900; Wilson v. Joseph. 107 
 Ind. 490, 8 N. E. GIG; Vail v. Knapp, 
 
 * l 49 Barb. 299, 305; Dobson v. Pearce, 
 12 N. Y. 156; Dinsmore v. Neres- 
 heimer. 32 Hun, 204. 
 
 46. Thus it was held by the Su- 
 preme Court of Ohio in Snook v. 
 Snetzer, 25 Ohio St. 516, that where 
 the statutes of that State exempted 
 the earnings for personal service of 
 a debtor, who was the head of a 
 family and a citizen of the State, 
 the Ohio courts had authority to re- 
 strain a citizen of the county in 
 which the equity action was com- 
 menced from proceeding in another 
 State to attach the earnings of such 
 head of a family, with a view to 
 evade the exemption laws of Ohio, 
 and to prevent him from availing 
 himself of the benefit of such law. 
 To the same effect is Keyser v. Rice, 
 47 Md. 203. The Court of Appeals 
 of Maryland declared the power of 
 the State to compel its own citizens 
 to respect its laws, even beyond its 
 own territorial limits, to be supported 
 by the great preponderance of prece- 
 
 dent and authority; and sustained an 
 injunction in another State of an at- 
 tachment, by which the defendant 
 sought to recover wages due the com- 
 plainant in Maryland and there ex- 
 empt from attachment. So in Bur- 
 lington & Missouri Railroad v. 
 Thompson, 31 Kan. 180, though it 
 was held that a foreign corporation 
 doing business in Kansas might be 
 garnisheed for a debt due to a non- 
 resident employe, contracted outside 
 of the State, and exempt from gar- 
 nishment in the State where the de- 
 fendant and garnishee resided, yet it 
 was conceded by Judge Brewer, in 
 delivering the opinion, " that in the 
 courts of a State any citizen of 
 that State may be enjoined from re- 
 sorting to the courts of any other 
 State for the purpose of evading the 
 exemption laws of his own State;" 
 and this was so decided in Zimmer- 
 man v. Franke, 34 Kan. 650. In 
 Wilson v. Joseph, 107 Ind. 490, 8 N. 
 E. 616, the Supreme Court of Indi- 
 ana ruled that an injunction would 
 lie to restrain a resident of Indiana 
 from prosecuting an attachment pro- 
 ceeding against anolher resident in 
 the courts of another State, in viola- 
 tion of a statute which made it an 
 offense to send a claim against a 
 debtor out of the State for collec- 
 tion, in order to evade the exemption 
 law. And see Chaffee v. Quidnick 
 Company, 13 R. I. 442, 449; Great 
 
 150
 
 Jurisdiction. § 77a 
 
 powers having jurisdiction of the person of a defendant can decree 
 a conveyance by him of land in another State and enforce the 
 decree by process against him in case of disobedience. 47 And where 
 the owners of land in a suit against them, by parties claiming to 
 hold a lease of the land, to enjoin them from removing gravel 
 therefrom, execute a bond conditioned to pay such damages as may 
 result from its removal, the court of another State into which the 
 gravel is shipped by the owner of the land, will enjoin such parties 
 from maintaining an action to recover the gravel so shipped while 
 '.the bond continues in force. 48 
 
 § 77a. Same subject ; exceptions continued. — A citizen or resi- 
 dent of a State who commences an action at law in another State 
 becomes amenable to the equity jurisdiction of the courts of the 
 latter State to grant an injunction against proceeding in the action 
 at law. 49 So in a case in Maine it is decided that the court sitting 
 as a court of equity, may, upon a proper bill duly served, enjoin 
 the respondent from further prosecuting, in the court, a writ of 
 entry in favor of the respondent against the claimant, notwith- 
 standing that the respondent may not have resided, or personally 
 been within the State, since the commencement of the bill. 50 And 
 in such a case it is decided that service of subpoena on his attorney 
 
 Falls Manufacturing Co. v. Worster, within reach of our process, no de- 
 
 23 N. H. (3 Foster) 462; Pickett v. cree in equity can pass against him. 
 
 Ferguson, 45 Ark. 177. To compel him, where he is, to do 
 
 47. Seixas v. King, 39 La. Ann. what equity requires — perhaps not — 
 510; Muller v. Dows, 94 U. S. 444,24 but to prevent him from doing within 
 L. Ed. 207; McElrath v. Pittsburg, our own jurisdiction what equity for- 
 etc, R. Co., 55 Pa. St. 189; Alexan- bids, assuredly there is power. To 
 der v. Tolleston Club, 110 111. G5. See, hold otherwise would be as disgrace- 
 also, Prager v. Micas, 3G La. Ann. 75. ful as it is absurd on its face. He 
 
 48. Cement Gravel Co. v. Wylly, who brings suit in the courts of a 
 105 Ga. 204. 31 S. E. 161. State must be considered as submit- 
 
 49. Chalmers v. Hack, 19 Me. 124. ting all that pertains to the main- 
 
 50. Marco v. Low, 55 Me. 549. tenance of that suit to the jurisdic- 
 The court said: "It is strenuously tion of those courts which have cog- 
 urged in support of the demurrer nizance of the matter in controversy 
 that, although Low's real estate is where the remedy is sought." Per 
 attached, yet, since his person is not Barrows, J. 
 
 151
 
 §§ 78, 79 
 
 Jurisdiction. 
 
 in the suit at law would be a good substituted service to subject 
 him to the jurisdiction of the court. 51 
 
 § 78. Same subject illustrated in Alabama. — It has been de- 
 cided by the Supreme Court of Alabama in a case in which both 
 parties were citizens of Alabama, that a court of equity of that 
 State had power by judgment in personam to restrain defendant 
 from further prosecuting an action by attachment and garnish- 
 ment in a Louisiana court, to reach money due plaintiff in that 
 State, which, under the laws of Alabama is exempt from legal 
 process, but which is not exempt in Louisiana. 52 The foregoing 
 doctrine, though upheld by the highest authority, has been criti- 
 cised by some as an undesirable inheritance from the English Court 
 of Chancery and as incompatible with our free institutions. 53 
 
 § 79. Same subject ; interstate comity. — It has been decided by 
 
 51. Chalmers v. Hack, 19 Me. 124. 
 
 52. Allen v. Buchanan, 97 Ala. 399, 
 11 So. 777, 38 Am. St. Rep. 187. The 
 following is from the opinion: "And 
 so long as the relief sought may be 
 worked out directly on the person of 
 the defendant, and indirectly through 
 his person on property in a foreign 
 jurisdiction, it is immaterial what 
 form the decree assumes — whether it 
 is affirmative or negative in its effect, 
 whether it commands an act to be 
 done, as, for instance, the execution 
 of a conveyance, or restrains the do- 
 ing of an act, as. for instance, the 
 alienation of property, the institution 
 or prosecution of suits in other 
 States, and the like. Thus it is said 
 by Judge Story, after declaring that 
 nothing can be clearer than the propo- 
 sition that the courts of one country 
 cannot exercise any control of those 
 of another : ' But, although the 
 courts of one country have no author- 
 ity to stay proceedings in the courts 
 
 of another, they have an undoubted 
 authority to control all persons and 
 things within their territorial limits. 
 When, therefore, both parties to a 
 suit in a foreign country, are resi- 
 dent within the territorial limits of 
 another country, the courts of equity 
 in the latter may act in personam 
 upon these parties, and direct them, 
 by injunction, to proceed no further 
 in such suit. In such case these 
 courts act upon acknowledged prin- 
 ciples of public law in regard to 
 jurisdiction. They do not pretend to 
 direct or control the foreign court, 
 but, without regard to the situation 
 of the subject matter of the dispute, 
 they consider the equities between 
 the parties, and decree in personam 
 according to those equities, and en- 
 force obedience to their decrees by 
 process in personam.' 2 Story, Eq. 
 Jur., § 899." 
 
 53. in commenting upon such Ala- 
 bama decision, the learned editor of 
 
 152
 
 Jurisdiction. 
 
 §79 
 
 the Supreme Court of Wisconsin, that where, in voluntary pro- 
 ceedings for the dissolution of a corporation of another State, a 
 receiver is appointed by a court of that State, and the creditors 
 are enjoined by the same court from prosecuting actions against 
 
 the American Law Review, for May- 
 June, 1893 (27 Am. Law R. 4U9), 
 used this language : " It should be 
 added that, while the Supreme Court 
 of the United States have recognized 
 this doctrine as not infringing upon 
 the Federal Constitution (Cole v. 
 Cunningham, 133 U. S. 107, 10 S. 
 Ct. 269, 33 L. Ed. 538), there 
 is a good deal of American authority 
 against the propriety of the exercise 
 of such a power. It is a doctrine 
 which we have inherited from the 
 English Court of Chancery, whose 
 practices were in many cases grossly 
 tyrannical. That court did not hesi- 
 tate, by exerting its power in per- 
 sonam against any persons whom it 
 could catch within its jurisdiction, to 
 decide controversies depending in any 
 part of the world, even in regard to 
 land titles, which are strictly of local 
 cognizance. It is believed that the 
 exercise of the power ought to have 
 been rejected by American courts 
 from the first, as incompatible with 
 the principles of our free institu- 
 tions. The fact that so many of 
 them have laid hold of it and upheld 
 it and exercised it, is a striking illus- 
 tration of what may justly be called 
 selfishness of courts, proving that 
 judges are just as greedy of juris- 
 diction as men are of gain, and in 
 obedience of the same law of human 
 nature." And the editor of the New 
 York Law Journal in its issue of 
 June 9, 1893, thus endorses the above 
 comments of the Review: "We con- 
 cur in the spirit of these remarks to 
 the extent of believing that the power 
 
 to issue injunctions against actions 
 in sister States should be sparingly 
 exercised, and only when the pe- 
 culiar necessity therefor is very ob- 
 vious. In Kittle v. Kittle, 8 Daly, 
 72, the rule is stated that our courts, 
 from motives of comity and public 
 policy, will not restrain parties by 
 injunction from proceeding in actions 
 commenced by them in other States, 
 except in very special cases, to pre- 
 vent injustice and oppression. In 
 that case it appeared that the de- 
 fendant in an action for limited di- 
 vorce in this Sate had commenced an 
 action for a separation in the State 
 of Connecticut, and the injunction 
 granted against the prosecution of 
 such latter action appears to have 
 been prompted by a wise exercise of 
 discretion. The decision in Dinsmore 
 v. Neresheimer, 32 Hun, 204. seems 
 to go furtner in contending for the 
 general exercise of the power in 
 question. The defendant, a resi- 
 dent of the State of New York, com- 
 menced two actions against an ex- 
 press company in the Supreme Court 
 of the District oi Columbia, to re- 
 cover the value of two packages, one 
 of which was to have been delivered 
 in Philadelphia, and the other in 
 Chicago. By the terms of the re- 
 ceipts, the liabiliay of the company 
 upon the first package was fixed at 
 $50 (no specific valuation being 
 placed upon it by the sender), and 
 the liability upon the second pack- 
 age was fixed at $200. a valuation 
 having been given at that amount. In 
 the actions brought in the District 
 
 153
 
 §79 
 
 Jurisdiction. 
 
 the corporation, the Wisconsin courts will not aid a creditor so 
 enjoined who violates the injunction by bringing an action against 
 the corporation in Wisconsin, and garnishing a debtor of the 
 corporation there resident, but will, on the contrary, in the exercise 
 of interstate comity, pay due regard to the foreign injunction, so 
 far as it does not conflict with the rights of the citizens of Wis- 
 consin, and will recognize the superior right of the receiver to 
 recover what is due from the Wisconsin resident to the corpora- 
 tion. 54 
 
 of Columbia, larger Bums than those 
 above named were claimed, the pack- 
 ages alleged to have been respectively 
 worth $2,000 and $3 095.91. The 
 suits were brought in the District of 
 Columbia in order to avoid a decis- 
 ion of the New York Court of Ap- 
 peals sustaining the validity of pro- 
 visions in receipts limiting the com- 
 pany's liability, and to take advant- 
 age of a decision to the contrary 
 made by the Supreme Court of the 
 District of Columbia. It was held 
 that the company could maintain an 
 action in this State to restrain 
 the defendant from prosecuting said 
 actions in the District of Columbia. 
 It was probably not an inequitable 
 use of legal process to prevent the 
 shipper from recovering anything 
 more than the limited or declared 
 value of the packages. But we can 
 see how this case might be used 
 quite plausibly, as a general prece- 
 dent and argument, for compelling 
 citizens of this State to submit their 
 rights to rules of law laid down 
 by our courts, although the rules on 
 the same subject established else- 
 where may be different, and whether 
 the cause of action arose here or 
 abroad. On the whole, we believe 
 that this special branch of equity 
 jurisdiction should not be extended 
 
 beyond the limits set by existing au- 
 thorities." 
 
 54. Cilman v. Ketcham, 84 Wis. 
 60, 54 N. VV. 395. The plaintiff in this 
 action was, at the time, a resident and 
 citizen of the State of New York, of 
 which State the corporation was a 
 citizen, and he was served with an 
 injunction in that proceeding, re- 
 straining him, as a creditor of the 
 corporation, from commencing any 
 suit against it, to enforce the collec- 
 tion of his debt, in order that the 
 corporate property and assets might 
 be applied by the receiver, under the 
 authority of the court appointing 
 him. The court said in substance as 
 follows: The situation, in brief, is 
 that after the plaintiff had been 
 enjoined by a competent court of the 
 jurisdiction in which he resided, 
 from bringing any action against the 
 corporation, so that he should not ob- 
 tain any undue preference over its 
 other creditors, in violation of the 
 purpose and policy of the law of 
 New York, and the proceeding thus 
 instituted, the plaintiff came into the 
 Circuit Court of Wisconsin and com- 
 menced an action to recover his de- 
 mand against the dissolved corpora- 
 tion. The question is one wholly be- 
 tween parties residing in New York, 
 and bound by the proceedings in 
 
 154
 
 JUEISDICTION. 
 
 §80 
 
 § 80. Same subject; English Chancery.— It is well settled that 
 the English Court of Chancery has jurisdiction to restrain per- 
 sons within its territorial limits from doing anything abroad 
 whether the thing forbidden be a conveyance, or other act in pais, 
 or the institution of an action in a foreign court. 55 Thus that 
 court will enjoin a creditor of a debtor in bankruptcy from going 
 abroad and there obtaining a priority over other creditors in evasion 
 of the English bankruptcy laws. 56 
 
 question. . . . The plaintiff asks 
 us to aid him in violating the law of 
 his own State and evading the pro- 
 cess of its courts. Our own citizens, 
 in a proper case, would no doubt be 
 protected against the effect of such 
 extra-territorial act, if injurious to 
 their interests or in contlict with the 
 laws and policy of Wisconsin. Per 
 Pinney, J., who then referred to Ba- 
 con v. ttorne, 123 Pa. St. 452, 453, 16" 
 Atl. 794, quoting from it as follows: 
 " As before observed, both of these 
 parties, plaintiffs and defendant, are 
 residents of New York. They come 
 into this State to obtain an ad- 
 vantage by our law which they could 
 not obtain by their own. They are 
 seeking to nullify the law of their 
 own State, and ask the aid of our 
 court to do so. This they cannot 
 have. If for no other reason it is 
 forbidden by public policy and the 
 comity which exists between the 
 [States. This comity will always be 
 enforced when it does not conflict 
 with the rights of our own citizens." 
 55. In Penn v. Lord Baltimore, 1 
 Ves. Sen. 444, Lord Hardwicke recog- 
 nized the principle that equity, as it 
 acts primarily in personam, and not 
 merely in rem, may, where a person 
 against whom relief is sought is within 
 the jurisdiction, make a decree, upon 
 the ground of a contract, or any 
 equity subsisting between the parties, 
 
 respecting property situated out of 
 the jurisdiction. 2 Lead. Cas. in 
 Eq. (4th American edition), 1806. 
 Penn v. Lord Baltimore is cited with 
 approval by Chief Justice Marshall, 
 in Massie v. Watts, G Cranch, 148, 
 where a suit was instituted in the 
 Circuit Court of Kentucky to compel 
 the conveyance by the defendant of 
 the legal title of land in Ohio, on 
 the ground that he had notice, when 
 it was purchased, of the prior equity 
 of the complainant. In Lord Port- 
 arlington v. Soulby, 3 Mylne & K. 
 104, 106, Lord Chancellor Brougham 
 reviews the history of the jurisdic- 
 tion to restrain parties from com- 
 mencing or prosecuting actions in 
 foreign countries, and concludes: 
 " Nothing can be more unfounded 
 than the doubts of the jurisdiction. 
 That is grounded, like all other 
 jurisdiction of the court, not upon 
 any pretension to the exercise of judi- 
 cial and administrative rights abroad, 
 but on the circumstance of the per- 
 son of the party, on whom this order 
 is made, being within the power of 
 the court." See Earl of Oxford's 
 Case, 1 Ch. Rep. 1; s. c. 2 Lead. Cas. 
 in Eq. 1316. 
 
 56. In Mcintosh v. Ogilvie, 4 T. 
 R. 193 n., 3 Swanst. 365, the Lord 
 Chancellor said: "Then it is like 
 a foreign attachment, by which this 
 court will not suffer a creditor to 
 
 155
 
 §§ 81, 82 Jurisdiction. 
 
 § 81. Comity of New York Chancery — Upon considerations 
 of comity the former court of chancery in New York would not, 
 except in very special cases, even where it had the power, restrain 
 a suit or proceeding already commenced in a court of competent 
 jurisdiction in another State, or in any of the Federal courts. 57 
 The usual practice in such cases was not to restrain the proceeding 
 in a federal court, but leave the party interested to apply for a 
 6tay in that court until equitable relief should be granted in the 
 court of chancery. 58 
 
 § 82. Jurisdiction of non-resident's personalty. — In an action, 
 under the Wisconsin statutes, in the nature of a creditor's suit to 
 enforce a judgment against a non-resident, the situs of debts due 
 him by persons resident in Wisconsin, and evidenced by notes and 
 mortgages, will be considered as at the domicile of such resident 
 debtors, and the service of writs of injunction, issued in Wisconsin, 
 upon the resident debtors, restraining them from paying the debts 
 to the non-resident judgment debtor, gives the Wisconsin court 
 jurisdiction of the debts, so that they may be collected and applied 
 to the payment of the judgment, though the non-resident debtor 
 does not appear in the action. 59 
 
 gain priority, if no sentence were courts of this State can exercise jur- 
 
 pronounced before the bankruptcy. I isdiction only over persons and prop- 
 
 cannot grant a prohibition to the erty within its territory, but it is 
 
 court of sessions, but I will certainly familiar law through its tribunals 
 
 make an order on the party here to it may subject that property within 
 
 restrain him from getting a prior- its limits, owned by non-residents, to 
 
 ity, and evading the laws of bank- the payment of demands of its own 
 
 ruptcy here. If the gentleman were citizens against them; and the exer- 
 
 not going abroad, I would do nothing; cise of this jurisdiction in no respect 
 
 but as he is, 1 will not discharge the infringes upon the sovereignty of the 
 
 writ without his giving security to State where such owners are domi- 
 
 abide the event of the cause." ciled. Every Scate, it is held, owes 
 
 57 Mead v. Merritt, 2 Paige, 402; protection to its own citizens, and 
 
 Burgess v. Smith, 2 Barb. Ch. 276; when non-residents deal with them 
 
 Schuyler v. Pelissier, 3 Edw. Ch. 191. it is a just and legitimate exercise of 
 
 58. Coster v. Griswold, 4 Edw. Ch. authority to hold and appropriate any 
 364. property owned by such non-residents 
 
 59. Bragg v. Gaynor, 82 Wis. 468, to satisfy the claims of its citizens. 
 55 N. W. 919, per Pinney, J.: "The Pennoyer v. Neff, 95 U. S. 726, 24 L. 
 
 150
 
 Jurisdiction. 
 
 §83 
 
 § 83. Non-interference with courts of concurrent jurisdiction. 
 — Courts of equity will not ordinarily interfere with other courts 
 which have acquired control of the controversy and are competent 
 to afford relief. This rule is applied where courts of law and 
 
 Ed. 565. This jurisdiction is called into 
 exercise and attaches where property 
 is once brougnt under the control of 
 the court, by seizure or acts of equiv- 
 alent import, and which stand for 
 and represent the dominion of the 
 court over the thing, and in effect, 
 subject it to the control of the court. 
 This may be by the levy of a writ, 
 or by the mere bringing of a suit. 
 ' It is immaterial,' said the court, by 
 Mr. Justice McLean, in Boswell'a 
 Lessee v. Otis, 9 How. 336, 13 L. Ed. 
 164, 'whether the proceedings against 
 the property be by an attachment or 
 bill in chancery.' The property may 
 be bound without actual service within 
 the jurisdiction of process upon the 
 owner, where the only object of the 
 proceeding is to enforce a claim 
 against the property specifically of a 
 nature to bind the title. Notice of 
 the proceeding may be given by pub- 
 lication as prescribed in the statute. 
 Cooper v. Reynolds, 10 Wall. 308, 
 317, 19 L. Ed. 931; Heidritter v. 
 Elizabeth Oil Cloth Co., 112 U. 
 B. 300, 302, 5 S. Ct. 135, 28 L. 
 Ed. 729; and the property will be 
 effectually bound by the judgment 
 that may follow. That local laws 
 may thus fix the situs of debts at 
 the domicile of the debtor for such 
 purposes, that under such laws they 
 may be attached, and compulsory 
 payment will protect the debtor ev- 
 erywhere against a suit for the re- 
 covery of the same debt by the cred- 
 itor, is well established by many 
 adjudicated cases, among which are 
 Allen v. Watt, 79 111. 284; Bethel v. 
 
 Judge of Superior Court, 57 Mich. 
 379, 24 N. W. 112; Newland v. Cir- 
 cuit Judge of Wayne County, 85 
 Mich. 151, 48 N. W. 544; Railway 
 Company v. Crane, 102 111. 249; Mor- 
 gan v. Neville, 74 Pa. St, 52; Coch- 
 ran v. Fitch, 1 Sandf. Ch. 142; Will- 
 iams v. lngersoll, 89 N. Y. 523. And 
 the correctness of this doctrine is 
 distinctly recognized in Guillander v. 
 Howell, 35 N. Y. 658, 659, as an ex- 
 ception to the general rule as to the 
 nit us of personalty at the domicile of 
 the owner. Garnishee process, under 
 our statute, is only the equivalent of 
 an equitable attachment, and creates 
 a lien in like manner as by filing a 
 bill, and is in every essential element, 
 as far as it extends, a creditors' bill. 
 La Crosse Nat. Bank v. Wilson, 74 
 Wis. 391, 43 N. W. 153; and a cred- 
 itors' bill is an equitable levy. In 
 re Milburn, 59 Wis. 34. By the in- 
 junction granted in this case against 
 the defendants resident in Wisconsin, 
 the court in the most effective man- 
 ner asserted its dominion over the 
 indebtedness sought to be reached, 
 and there can be no doubt that these 
 debts were thus brought, by reason 
 of this equitable levy, within the 
 control of the court for the purposes 
 of this action, which was made ef- 
 fective by its final judgment, ap- 
 pointing a receiver to collect them 
 and apply the proceeds to the plain- 
 tiff's judgment. . . . Practically, 
 the note or bond represents money 
 due and to come from the party li- 
 able in one State to a party in an- 
 other who holds merely the evidence 
 
 157
 
 §83 
 
 Jurisdiction. 
 
 equity have concurrent jurisdiction of the res, and a court of law 
 has first acquired jurisdiction of the controversy by an action 
 brought therein. 60 Where Federal and State courts have concur- 
 rent equity jurisdiction the rule is established that the court which 
 first obtains jurisdiction shall retain it to the end. 61 A suit in 
 
 of the existence of the debt for it; 
 and «it seems but reasonable and 
 proper to bold that the situs of the 
 debt, for the purposes here in ques- 
 tion, is at the domicile of the debtor, 
 where collection of it may be en- 
 forced, and the property pledged as 
 security may be subjected and ap- 
 plied to its payment. In no other 
 jurisdiction could the security be 
 made available; and it seems clear 
 that the subject-matter to which 
 the title or claims in question relate 
 is the property and not the notes, 
 which are merely the evidence of its 
 existence. Owen v. Miller, 10 Ohio 
 St. 143. . . . We hold, therefore, that 
 the property described in the com- 
 plaint was not only property in the 
 State, but sufficient to found the jur- 
 isdiction of the court, and that the 
 objections to jurisdiction are not 
 well taken." In such a case, the in- 
 junction issued in Wisconsin operates 
 as an equitable levy, by which the 
 intangible personal property of the 
 non-resident is transferred from his 
 domicile and brought within the jur- 
 isdiction of the court, though he does 
 not come within it, and is not served 
 in the injunction sent, except by 
 publication. 
 
 60. Johnston v. Young, I. R. 10 
 Eq. 403, where the vice-chancellor 
 said: "The action which is sought 
 to be restrained is one brought 
 against a speculator on the Stock 
 Exchange by his stock broker — an 
 action which it is perfectly compe- 
 
 tent for a court of common law to 
 entertain. ... All that can be said 
 is that there is a concurrent juris- 
 diction. That a bill for an account 
 could have been maintained by the 
 plaiiitilF, had he come here in the 
 first instance is admitted; but there 
 Ixing a concurrent jurisdiction am 
 I justified in interfering? This is 
 clearly a nmtter of discretion, and 
 that discretion ought not to be exer- 
 cised unless the court is satisfied 
 that justice requires it. I think that 
 the policy of the law at the present 
 day so far from sending a party 
 from one court to another, is as far 
 as possible to provide that relief 
 shall be fully administered by the 
 court to which the suit is first at- 
 tached." 
 
 See, also, Birmingham Ry. & E. 
 Co. v. Birmingham Traction Co., 121 
 Ala. 475, 25 So. 777; Pueblo Chicago 
 Lumber Co. v. Danziger, 7 Colo. App. 
 149, 42 Pac. 683. 
 
 Construction of code provi- 
 sion. A code provision that an in- 
 junction to stay proceedings under 
 a judgment shall not be granted in 
 an action brought in any other court 
 than that in which the judgment was 
 rendered, applies to any party seek- 
 ing to stay the judgment. Mallory 
 v. Dauber, 83 Ky. 239, construing 
 Ky. Code, § 285. 
 
 61. New Jersey Zinc Co. v. Frank- 
 lin Iron Co.. 29 N. J. Eq. 422 ; Home 
 Ins. Co. v. Howell, 24 N. J. Eq. 238; 
 Akerly v. Vilas, 15 Wis. 401; Riggs 
 
 158
 
 Jurisdiction. 
 
 §83 
 
 equity will not lie to restrain the execution of a writ of assistance 
 issued in another suit in equity, whether the second suit is brought 
 in the same or in a different court, by a party or by a stranger to 
 the first suit. 62 One who complains that a judgment was rendered 
 against him in the Supreme Court after the appeal had in reality 
 been dismissed, cannot have the execution of the judgment re- 
 strained by proceeding in another court. He should apply to the 
 Supreme Court to have the judgment set aside. 63 The court 
 having jurisdiction of proceedings for the dissolution of an insol- 
 vent corporation may, where a receiver has been appointed, enjoin 
 the prosecution of actions against the corporation in other courts. 64 
 
 v. Johnson Co. 6 Wall. (U. S.), 1G6, 
 18 L. Ed. 7G8; Peck v. Jenness, 7 
 How. (U. S.) 624, 12 L. Ed. 841. 
 
 62. Endter v. Lennon, 4G Wis. 299, 
 50 N. W. 194; Platto v. Deuster, 22 
 Wis. 482. In Stein v. Benedict, 83 
 Wis. G03. 53 N. W. 891, Pinney, J., 
 Baid: ".It is well settled that one 
 circuit court of this State will not 
 restrain the collection or enforcement 
 of a judgment rendered in another 
 circuit court of the State for legal 
 or equitable relief, and the rule is the 
 same whether the second action be 
 brought by a party or a stranger 
 to the first. The proper course is 
 to apply by petition for relief in the 
 first suit. . . . This must be regarded 
 as settled beyond dispute." 
 
 See, also, Cardinal v. Eau Claire 
 Lumber Co., 75 Wis. 404, 44 N. W. 
 7G1; Coon v. Seymour, 71 Wis. 340, 
 37 N. W. 243; Orient Ins. Co. v. 
 Sloan, 70 Wis. 611, 36 N. W. 388. 
 
 A judgment of the Circuit 
 Court, affirmed by the Supreme 
 Court, cannot be impeached, or set 
 aside, in an action in equity, brought 
 for that purpose, for any ground ap- 
 parent on the record at the time of 
 its rendition and affirmance. Arm- 
 
 strong v. Poole, 30 W. Va. 666, 5 
 S. E. 257. The court in which a 
 judgment was rendered alone ha3 
 jurisdiction to enjoin it. McConnell 
 v. Rour, 8 Ky. Law, 343, 1 S. W. 
 682. 
 
 63. Phelan v. Johnson, 80 Iowa, 
 727, 46 N. W. 68. Plaintiff sued 
 defendant in the Supreme Court for 
 damages for breach of a contract to 
 sell goods, and defendant, after ap- 
 pearing in the action, sued plaintiff 
 in the Court of Common Pleas of 
 New York city and county for a bal- 
 ance alleged to be due on the pur- 
 chase price of the good3 sold, and 
 recovered judgment by default. Held 
 that, even if judgment had not been 
 entered in the Court of Common 
 Pleas or even if the judgment were 
 irregular for want of service, the Su- 
 preme Court had no power to re- 
 strain defendant from proceeding in 
 that court, though his cause of action 
 could be set off in the action brought 
 by plaintiff. Bradley Salt Co. v. 
 Keating (Sup.), 16 N. Y. Supp. 795. 
 
 64. Phoenix Foundry Co. v. North 
 River Construction Co., 33 Hun (N. 
 Y.), 156. 
 
 See National Bank v. Goolsby, 12 
 
 159
 
 §84 
 
 Jurisdiction. 
 
 This injunctive power is incidental to the power of appointing a 
 receiver and is exercised to prevent a waste of the corporate funds 
 and preserve them for distribution under the court's control. 65 
 The rule, however, that a suit will not be repeated in the same or 
 another court of concurrent jurisdiction applies only where the 
 controversy and relief sought are substantially incidental in the 
 two suits. Thus the institution of an action by a minority stock- 
 holder in a railroad company, the granting of a restraining order, 
 and an order to show cause why a receiver should not be appointed, 
 do not so draw the property within the jurisdiction of the court as 
 to bar a subsequent action by the trustee in a mortgage upon the 
 property for its foreclosure and the appointment of a receiver. 66 
 
 § 84. State courts versus federal. — A State court has no au- 
 thority to enjoin the proceedings of a federal court in a suit in 
 which the federal court has first acquired jurisdiction of the con- 
 troversy and the res. 61 And this on the consideration of necessity 
 as well as comitv. 68 Thus when a federal court has ordered the 
 
 Tex. Civ. App. 362, 35 S. W. 713, 
 holding, also, that a receiver may 
 be enjoined from interfering with at- 
 tached property where another court 
 has jurisdiction of the attachment 
 proceedings in which the right to the 
 property is in issue. 
 
 65. Attorney Gen. v. Guardian L. 
 Ins. Co., 77 N. Y. 272; Erie R. Co. 
 v. Ramsey, 45 JN. Y. 637, overruling 
 Schell v. Erie R. Co. 51 Barb. 368. 
 
 66. Pennsylvania Co. v. Jackson- 
 ville, etc., R. Co., 55 Fed. 131. 
 
 67. Amy v. Supervisors, 11 Wall. 
 (U. S.) 136, 20 L. Ed. 101; Super- 
 visors v. Durant, 9 Wall. (U. S.) 415, 
 19 L. Ed. 732; Mayor v. Lord, 9 
 Wall. (U. S.) 409, 19 L. Ed. 704; 
 Riggs v. Johnson Co., 6 Wall. (U. S.) 
 166, 18 L. Ed. 768; McKim v. Voor- 
 hies, 7 Cranch (U. S.), 279, 3 L. 
 Ed. 342. See Rio Grande R. Co ▼. 
 
 Gomila, 132 U. S. 478, 10 S. Ct. 155, 
 33 L. Ed. 400. 
 
 In California it is provided by 
 the code that an injunction shall not 
 be granted in the State courts to stay 
 proceedings in the courts of the 
 United States. Cal. Civ. Code, 1903, 
 § 3423. 
 
 68. Covell v. Heyman, 111 U. S. 
 176, 182, 4 S. Ct. 355, 28 L. 
 Ed. 390, where the court said: 
 "The forbearance which courts of 
 co-ordinate jurisdiction adminis- 
 tered under a single system, exer- 
 cise toward each other, whereby 
 conflicts are avoided, by avoiding in- 
 terference with the process of each 
 other, is a principle of comity with 
 perhaps no higher sanction than the 
 utility which comes from concord; 
 but between State and federal courts 
 it is something more. It is a prin- 
 ciple of right and of law and there 
 
 160
 
 JUBISDICTION. 
 
 §85 
 
 sale of a railroad and its officer has advertised the sale its juris- 
 diction is exclusive and cannot be interfered with by a State 
 court 69 
 
 § 85. Same subject; Court first acquiring jurisdiction. — As 
 
 between State and federal courts which have concurrent jurisdic- 
 tion the rule is settled that the court which first properly assumes 
 jurisdiction will retain it to the end. Thus, 70 where a receiver is 
 
 fore of necessity. It leaves nothing 
 to discretion or mere convenience. 
 These courts do not belong to the 
 same system so far as their jurisdic- 
 tion is concurrent; and though they 
 co-exist in the same space they are 
 independent and have no common su- 
 perior. They exercise jurisdiction, it 
 is true, within the same territory, 
 but not in the same plane; and when 
 one takes into its jurisdiction a spe- 
 cific thing, that res is as much with- 
 drawn from the judicial power of the 
 other, as if it had been carried phys- 
 ically into a different territorial sov- 
 ereignty. To attempt to seize it by 
 a foreign process is futile and void." 
 
 69. Central Nat. Bank v. Hazard, 
 49 Fed. 293. 
 
 70. In re Schuyler' Steam Tow 
 Boat Co., 64 Hun, 384, 19 N. Y. 
 Supp. 565, aff'd 136 N. Y. 169, 32 
 N. E. 623. per Peckham, J.: "A dif- 
 ferent rule does not prevail because 
 one court is a State and the other a 
 United States court. It is a question 
 of jurisdiction in each case, and the 
 same principles apply in both. The 
 same rule obtains whether one court 
 is of common law or equitable juris- 
 diction and the other is a court of 
 admiralty, although the nature of 
 the jurisdiction of these courts 
 is so different. Mr. Chief Justice 
 Taney, in his dissenting opinion 
 in Taylor v. Carryl 20 How. 
 
 583-600, 15 L. Ed. 1028, endeavored 
 to establish that such a difference 
 in the nature of the jurisdiction of 
 common law and admiralty courts 
 over the vessel which was attached 
 and libeled ought to make a differ- 
 ence in the decision to be made. The 
 jurisdiction of the District Court of 
 the United States in that case was 
 invoked for the purpose of collecting 
 seamen's wages by the enforcement 
 of the maritime lien upon the vessel 
 given for that class of services, and 
 it was said that such a lien is by 
 well-established authorities prior and 
 paramount to all other claims on the 
 vessel, and must be first paid, and 
 that by the constitution and laws of 
 the United States the district courts, 
 acting as courts of admiralty, were 
 the only courts which had jurisdic- 
 tion over such lien or that were au- 
 thorized to enforce it, and that it 
 was the duty of that court to do it. 
 The chief justice then argued that, as 
 the attachment of tne vessel under 
 the State laws and by process from 
 the State court only bound the in- 
 terest of the owner, while the mari- 
 time lien upon the vessel bound the 
 res itself, the court which had juris- 
 diction only of a subordinate and in- 
 ferior interest snould not be able, by 
 virtue of such an attachment, to close 
 all proceedings to enforce the para- 
 mount lien for wages for 12 months, 
 
 161 
 
 11
 
 §85 
 
 Jurisdiction. 
 
 appointed by a State court the title of the property vests in him on 
 the filing of his bond and relates back to the date of entry of his 
 appointment and the court appointing him acquires exclusive juris- 
 diction of the property and can enjoin creditors from enforcing 
 libels instituted against such property in a federal court between 
 
 as by the laws of the State that 
 period or more might elapse between 
 the seizure of the vessel under the 
 attachment and its sale or release 
 from the process. The case was de- 
 cided upon what a majority of the 
 court held was no new principle, and 
 it was solved by the application of 
 what was said to be a principle that 
 was comprehensive, and just, and 
 equal, and opposing no hindrance to 
 the efficient administration of judi- 
 cial power. The jurisdiction of the 
 State court was upheld, notwith- 
 standing its limited character, and 
 that of the admiralty court was de- 
 nied, althougn it was the sole court 
 where the lien of the seamen for his 
 wages could be originally enforced 
 against the vessel itself. The case 
 shows that the fact that the different 
 courts in the Christian Jansen Co. 
 case, supra, were courts of the same 
 State, and of concurrent jurisdiction, 
 is immaterial, and the same rule 
 would hold if one court were a State 
 and the other a United States tri- 
 bunal. The cases cited by the coun- 
 sel for these appellants do not in- 
 volve the question as to the effect 
 of the appointment of a receiver in 
 an action or proceeding where the 
 court has obtained jurisdiction by 
 the proper service of papers. This 
 court has held that the effect is, in 
 a case of this kind, to take the 
 property of a corporation into the 
 custody of the law, and that the 
 court has power to preserve and pro- 
 
 tect it. As was said in Heidritter 
 v. Oil Cloth Co., 112 U.S. 305, 5 Sup. 
 Ct. 135, 28 L. Ed. 729 : 'When the ob- 
 ject of the action requires the control 
 and dominion of the property in- 
 volved in the litigation, that court 
 which first acquires possession, or 
 that dominion which is equivalent, 
 draws to itself the exclusive right 
 to dispose of it.' That dominion was 
 acquired by the order appointing the 
 receiver in this proceeding. The same 
 principle was declared in Union 
 Trust v. Rockford R. Co., 6 Biss. 
 197; Steele v. Sturges, 5 Abb. Pr. 
 442; Railroad Co. v. Lewis, 81 Tex. 
 1, 16 S. VV. 647. See. also, Hines v. 
 Rawson, 40 Ga. 356, where the court 
 said: " In this case the plaintiffs in 
 error having gone voluntarily into 
 the State court and an injunction 
 having issued against them by that 
 court, restraining further action un- 
 til the assets of the estate could be 
 marshalled, it was a contempt of 
 the authority of the State court, into 
 which the parties had voluntarily 
 come and which had obtained pos- 
 session of the controversy, for the 
 plaintiffs to commence proceedings in 
 the United States court upon the 
 same matter till tne dissolution of 
 the injunction in the State court 
 and the State court had the power 
 to maintain its dignity and enforce 
 its authority by punishing the at- 
 torneys of the complainants for vio- 
 lating its injunction by bringing a 
 suit in the federal court." 
 
 162
 
 Jurisdiction. 
 
 86 
 
 the date of the receiver's appointment and the filing of his bond. 
 And similarly a federal court which has first obtained jurisdiction 
 will retain it to the exclusion of the State courts. 71 And where 
 criminal proceedings have been commenced in a State court the 
 United States Circuit Court has no jurisdiction to enjoin their 
 prosecution. 72 
 
 § 86. Federal comity towards State courts. — Where a cred- 
 itor's bill has been filed in the United States Circuit Court, the 
 ordinary rule to show cause issued, with a restraining order, and 
 a temporary received appointed, and at the return day of the rule 
 defendants show that a similar proceeding has been theretofore 
 begun in the State court, and jurisdiction duly acquired, it has 
 been decided that, as the proceedings had in the Federal court were 
 merely preliminary and ex parte, no further action will be taken 
 therein until the course of the State court has been developed, but 
 that the pendency of the action in the State court does not abate 
 the suit in the Federal court, nor deprive that court of its juris- 
 diction. 73 
 
 71. Rio Grande R. Co. v. Gomila, 
 132 U. S. 478, 485, 10 S. Ct. 
 155, 33 L. Ed. 400, per Field, 
 J. : " Nor is there anything in 
 the doctrine of the exclusive doc- 
 trine of the federal court to dispose 
 of the property in its custody with- 
 out any intervention of the probate 
 court, until its judgment is satisfied, 
 that in any way trenches upon that 
 doctrine equally well established that 
 where a State and a federal court 
 have concurrent jurisdiction over the 
 same subject matter that court which 
 first obtains jurisdiction will retain it 
 to the end of the controversy, either 
 to the exclusion of the other or to 
 its exclusion so iar as to render the 
 latter's decision subordinate to the 
 former ; a doctrine which with some 
 exceptions is recognized in both fed- 
 
 eral and State courts. Wallace v. 
 McConnell, 13 Pet. 136, 143, 10 L. 
 Ed. 95; Taylor v. Taintor, 16 Wall. 
 366, 370, 21 L. Ed. 287." 
 
 72. Fitts v. McGhee, 172 U. S. 
 516, 19 Sup. Ct. 269, 43 L. Ed. 535. 
 
 As to enjoining criminal proceed- 
 ings generally, see §§ 58-60a herein. 
 
 73. Howlett v. Central, etc., Land 
 Co., 56 Fed. 161, per Simonton, J.: 
 " There can be no doubt that on the 
 30th March, 1893, when the sum- 
 mons was served on the defendant 
 the State court acquired jurisdiction 
 over the case and all subsequent pro- 
 ceedings therein. The pendency of 
 the action in the State court would 
 not abate this suit, or deprive this 
 court of jurisdiction. Gordon v.Gilfoil. 
 99 U. S. 178, 25 L. Ed. 383. The matter 
 presents itself to the discretion of the 
 
 163
 
 §87 
 
 Jurisdiction. 
 
 § 87. Federal jurisdiction independent of State laws and prac- 
 tice. 74 — The remedies in the federal courtn are to be at common 
 law or in equity not according to the practice of the State courts 
 
 eourt, and calls upon it to decide 
 whether, after notice of the pen- 
 dency of proceedings of the same 
 character in the State court, it will 
 not stay its hands. ... It is a fa- 
 miliar doctrine that when a court 
 has acquired jurisdiction it can and 
 will retain it for all purposes within 
 its scope. Ober v. Gallagher, 93 U. 
 S. 199, 23 L. Ed. 829; Buck v. 
 Colbath, 3 Wall. 334, 18 L. Ed. 
 257; Wilmer v. Railroad Co., 2 
 W^oods, 409. What has heretofore 
 been done in this court is preliminary 
 — we may spy, tentative — in its char- 
 acter. The proceedings were ex parte. 
 All orders were temporary, based en- 
 tirely on the surface of the state- 
 ments made, reserved for full inves- 
 tigation and determination upon the 
 hearing of the rule to show cause. 
 The appointment of a temporary re- 
 ceiver was simply to prevent any 
 waste or loss pending this hearing. 
 The eontrol of the case has not been 
 assumed. The proceedings in the 
 State court are in full conformity 
 with the practice of that court. It 
 gave jurisdiction to it before that of 
 this court attached. It is a credit- 
 ors' bill. The same character of re- 
 lief is f.sked in that case as in the 
 case here. Ample justice can be done 
 in the State court as here. Obeying 
 and heartily indorsing the law laid 
 down by the bupreme Court, this 
 court will hold its hand. No further 
 action will be taken until the course 
 of the State court has been devel- 
 oped." 
 
 74. " Chancery jurisdiction is 
 conferred on the conrts of the 
 
 United States with the limitation 
 ' that suits in equity shall not be 
 sustained in either of the courts of 
 the United States in any case where 
 plain, adequate, and complete rem- 
 edy may be had at law.' The rules 
 of the High Court of Chancery of 
 England have been adopted by the 
 courts of the United States, and 
 there is no other limitation to the 
 exercise of a chancery jurisdiction by 
 these courts except the value of the 
 matter in controversy, the residence 
 or character of the parties, or a claim 
 which arises under a law of the Uni- 
 ted States, and which has been de- 
 cided against in a State court. 
 
 " In exercising this jurisdiction, 
 the courts of the Union are not lim- 
 ited by the chancery system adopted 
 b^ any State, and they exercise their 
 functions in a State where no court 
 of chancery has been established. The 
 usages of the High Court of Chan- 
 cery of England, wherever the juris- 
 diction is exercis?d, govern the pro- 
 ceedings. This may be said to be 
 the common law of chancery, and 
 siince the organization of the gov- 
 ernment, it has been observed." 
 State v. Wheeling & Belmont Bridge 
 Co., 13 How. (U. S.) 518, 563, 14 L. 
 Ed. 249. Per Mr. Justice McLean. 
 
 Federal jurisdiction depend- 
 ent upon amount involved. See 
 Eaton v. Hoges, 141 Fed. 64, 72 
 C. C. A. 74; Louisville & N. R. Co. 
 v. Bitterman, 14* Fed. 34; Shewalter 
 v. Lexington, 143 Fed. 161; Board 
 of Trade v. Cella Commission Co., 
 145 Fed. 28. 
 
 164'
 
 Jurisdiction. § 88 
 
 but according to the principles of common law and equity aa 
 settled in the federal courts and as regulated by Acts of Congress ; 
 and the Legislature of a State, by prescribing an action at law to 
 enforce even statutory rights cannot oust a federal court sitting in 
 equity of its jurisdiction to enforce such rights provided they are 
 of an equitable nature. 75 Thus, though an Alabama statute gives 
 either an action at law or a remedy in equity to enforce a me- 
 chanic's lien, yet proceedings in a federal court may be had in 
 equity because such proceedings are essentially of an equitable 
 nature. 75 
 
 § 88. Federal injunction of proceedings in State courts The 
 
 Revised Statutes of the United States, provide that " the writ of 
 injunction shall not be granted by any court of the United States 
 to stay proceedings in any court of a State except in cases where 
 such injunction may be authorized by any law relating to proceed- 
 ings in bankruptcy." 77 The language of the statute is plain and 
 the decisions uniform that, with the exception named in the statute, 
 a federal injunction will not be granted to stay pending proceedings 
 in the State courts. 78 The prohibition of injunctions against the 
 
 75. Hooper v. Scheimer, 23 How. the federal court has acted without 
 235, 16 L. Ed. 452; Sheirburn v. Cor- authority the injunction may be dis- 
 dova, 24 How. 423, 16 L. Ed. 741; regarded or the parties be enjoined 
 Whitehead v. Shattuck, 138 U. S. from attempting to enforce it. Kitt- 
 146, 152, 11 S. Ct. 276, 34 L. Ed. ridge v. Emerson, 15 N. H. 227. 
 873; Scott v. Neely, 140 U. S. 106. 78. The Mamie, 110 U. S. 742, 4 
 11 S. Ct. 712, 35 L. Ed. 358; Smyth S. Ct. 194, 28 L. Ed. 313; Dial v. 
 v. New Orleans Canal & Banking Co., Reynolds, 96 U. S. 340, 24 L. 
 141 U. S. 656, 12 S. Ct. 113, 35 L. Ed. 644; Haines v. Carpenter, 91 
 Ed. 891. U. S. 255, 23 L. Ed. 345; Peek v. 
 
 76. Sheliield Furnace Co. v. With- Jenness. 7 How. 620. 12 L. Ed. 841 ; 
 erow, 149 U. S. 574, 13 S. Ct. 936. Diggs v. Wolcott. 4 Cranch, 179; 
 
 77. Judiciary Act of March 2, Dillon v. Railway Co., 43 Fed. 109. 
 1793, § 5, Rev. Stat. § 720, U. S. The United States Circuit Court has 
 Comp. Stat. 1901. p. 581. no jurisdiction to enjoin proceedings 
 
 The jurisdiction of a federal in a State court except where the 
 district court to issue injunctions power is ronferred by statute or is 
 to stay proceedings in State courts necessary to give effect to proceed- 
 where petitions in bankruptcy have ings first had in the Circuit Court, 
 been filed may ue inquired into in Yick Wo v. Crowley, 26 Fed. 207. 
 the State courts; and if it is found 
 
 165
 
 § 89 Jurisdiction. 
 
 State courts applies to the officers and parties in the courts as well 
 as to the courts themselves; and therefore a federal court has no 
 power on the complaint of a legatee and an executor under a will 
 probated in one State to enjoin an administrator appointed in an- 
 other State from distributing the funds under his control to the 
 heirs at law. 79 This provision of the statutes does not prevent a 
 Federal Circuit Court from granting ancillary relief in the form 
 of injunction in aid of a decree in a State taxation suit where 
 jurisdiction has been acquired as to the State and its officers by the 
 State voluntarily submitting thereto. 80 The prohibition before 
 quoted was not at all affected by section 1979 of the Revised 
 Statutes, which was enacted on April 20, 1871, as a part of the 
 civil rights bill. 81 In this connection it is decided that a suit 
 against the attorney-general of a State to prevent him from en- 
 forcing an unconstitutional enactment to the injury of the rights 
 of the complainant is not a suit against the State in violation of 
 the eleventh amendment to the constitution denying jurisdiction 
 to a federal court in such a case. 82 
 
 § 89. Same subject ; where suits not begun in State court. — A 
 
 79. Whitney v. Wilder, 54 Fed. overrule Tuchman v. Welch, 42 Fed. 
 554_ 548, where it was held that since a 
 
 80. Gunter v. Atlantic Coast Line State law prohibiting the sales of in- 
 R. Co., 200 U. S. 273, 26 Sup. Ct. toxicating liquors by non-resident 
 252 50 L. Ed. 477. importers, in the same packages in 
 
 81. Hemsley v. Myers, 45 Fed. which they were brought into the 
 283, section 1979, is as follows: State, is void as being in contraven- 
 " Every person who, under color of tion of the Interstate Commerce 
 any statute, ordinance, regulation, Clause of the federal constitution, 
 custom or usage of any State or ter- where a State court has enjoined such 
 ritory subjects, or causes to be sub- sales an injunction will lie from the 
 iected any citizen of the United federal courts against the institution 
 States or other person within the of contempt proceedings by the 
 jurisdiction thereof, to the depriva- county attorney for the violation of 
 tion of any rights, privileges or im- the State injunction, under Comp. 
 munities secured by the constitution Laws of Kansas, 1885, ch. 13, § 35. 
 and laws, shall be liable to the party 82. Consolidated Gas Co. v. New 
 injured in an action at law, suit in York, 157 Fed. 849. Compare Logan 
 equity, or other proper proceeding v. Postal Teleg. & C. Co., 157 Fed. 
 for redress." This case seems to 570. 
 
 166
 
 Jurisdiction. 
 
 §89 
 
 federal court is not prohibited by this section just referred to from 
 issuing and has jurisdiction to issue an injunction to restrain the 
 prosecution in a State court of a multiplicity of threatened suits 
 which have not been actually begun. 83 A Federal court also has 
 power in a proper case to grant injunctive relief against a judg- 
 ment obtained in a State court by means of fraud. 84 
 
 83. Texas etc. R. Co. v. Kute- 
 man, 54 Fed. 547, where the court 
 said : " It is not clear that the bill 
 in this case seeks to stay or enjoin 
 any pending proceedings in State 
 courts, though the language of the 
 prayer that the defendant be enjoined 
 ' from instituting or prosecuting such 
 action pending this cause ' is suscep- 
 tible of that construction. Mani- 
 festly the chief purpose was to pre- 
 vent the further institution of the 
 many threatened suits, and, if the 
 plaintiff sought relief as to suits al- 
 ready brought as well as to suits 
 threatened, the two purposes and 
 prayers are not so united or depend- 
 ent that they must stand or fall to- 
 gether. In Fisk v. Railway Co., 10 
 Blatchf. 520, Judge Blatchford says: 
 1 The provision of section 5 of the 
 Act of March 2, 1793, that a writ of 
 injunction shall not be granted to 
 stay proceedings in any court of a 
 State, has never been held to have 
 and cannot properly be construed to 
 have any application except to pro- 
 ceedings commenced in a State court 
 before the proceedings are com- 
 menced in the federal court; otherwise 
 after suit brought in a federal court, a 
 party defendant could, by resorting to 
 a suit in a State court, defeat in many 
 ways the effective jurisdiction and 
 action of the federal court after it 
 had obtained full jurisdiction of per- 
 Bon and subject matter. Moreover 
 the provision of the Act of 1793 (now 
 
 section 720, Rev. St.) must be con- 
 strued in connection with the pro- 
 vision of section 14 of the Act of 
 Sept. 24, 1789, that the federal courts 
 shall have power to issue all writs 
 which may be necessary for the ex- 
 ercise of their respective jurisdic- 
 tions. 1 U. S. St. at Large, pp. 81, 
 82.' Section 716. This is cited with 
 approval by Judge Field in Sharon 
 v. Terry, 36 Fed. 365. It is in har- 
 mony with French v. Hay, 22 Wall. 
 250, 22 L. Ed. 854, and Dietzsch 
 v. Huidekoper, 103 U. S. 494, 26 L. 
 Ed. 497, and appears to be sub- 
 stantially conceded by the terms of 
 appellee's first proposition. This be- 
 ing so, as to all suits threatened, 
 no proceeding having been begun as 
 to them in any court prior to the 
 filing of appellant's bill, the exhibit- 
 ing the bill in the Circuit Court, if 
 jurisdiction otherwise is shown, gives 
 that court ' a first-acquired federal 
 jurisdiction,' to which section 720 
 cannot reasonably be applied." 
 
 84. Young v. Sigler, 48 Fed. 182, 
 Shiras, J. : " When the proceeding 
 is merely the equivalent of a motion 
 for a new trial or for a review of 
 alleged errors committed on the trial, 
 or for relief against some informal- 
 ity or irregularity in the proceedings 
 before the State court, then it is set- 
 led the application cannot be made to 
 the federal court; but when the pro- 
 ceeding is to obtain relief by setting 
 aside a judgment for fraud in the 
 
 167
 
 >§ 90, 91 
 
 J UKISDICTION. 
 
 § 90. Federal jurisdiction to enjoin national banks — The 
 
 United States Circuit Courts have power to enjoin the national 
 banks in a proper case by virtue of the powers inherent in the 
 original jurisdiction in equity conferred upon those courts by 
 Bcction 629 of the Kevised Statutes of the United States, this 
 power not having been curtailed by section 5242 of the same 
 statute. 85 
 
 § 91. Jurisdiction of patent infringements — Under section 
 4921 of the Revised Statutes of the United States conferring power 
 to grant injunctions " to prevent the violation of any right secured 
 by patent " the federal courts have exclusive jurisdiction of injunc- 
 
 obtaining thereof then the federal 
 court may take jurisdiction if the 
 citizenship of the litigants is diverse 
 and the amount involved is sufficient. 
 Barrow v. Hunton, 99 U. S. 80, 25 
 L. Ed. 407; Johnson v. Waters, 111 
 U. S. 640, 4 S. Ct. 619, 28 L. Ed. 
 647. In this case the complainant 
 is a citizen of Colorado, the defend- 
 ant of Iowa; the amount at issue ex- 
 ceeds $2,000, and the proceeding is in 
 equity to set aside tne judgment for 
 fraud, and hence the court has jur- 
 isdiction of the cause." See, also, 
 Insurance Co. v. Hodgson, 7 Cranch, 
 332, 3 L. Ed. 362. 
 
 85. Hower v. Weiss Malting Co., 
 55 Fed. 356, per Lacombe, C. J.: 
 "On behalf of the defendant, the 
 First National Bank of New York, 
 it is also insisted that under section 
 5242 of the U. S. Revised Statutes 
 there was no power in the State court 
 to issue this injunction nor in the 
 United States Circuit Court to con- 
 tinue it. The practical effect of Judge 
 Benedict's order was to enjoin the 
 defendants pending the litigation, and 
 if that court had the power to issue 
 an injunction against a national 
 
 bank, such order should be sustained 
 irrespective of the question whether 
 the State court which originally en- 
 joined the defendant bank, had or had 
 not power to make such an order. 
 The prohibition upon which the de- 
 fendant bank relies is found at the 
 close of section 5242, U. S. Revised 
 Statutes, in the following language: 
 ' No attachment, injunction or exe- 
 cution shall be issued against such 
 association (a national bank) or its 
 property before tinal judgment in any 
 suit, action or proceeding in any 
 State, county or municipal court.' 
 This clause contains no direct re- 
 striction upon the power of cir- 
 cuit courts of the United States. 
 It was held in Pacific National 
 Bank v. Mixter, 124 U. S. 721, 
 8 S. Ct. 718, 31 L. Ed. 567, 
 that, under this provision, a Circuit 
 Court was not authorized to issue 
 attachments on mesne process against 
 a national bank. That conclusion, 
 however, was reached because the 
 only grant of such power to the Cir- 
 cuit Court was found in section 915, 
 U. S. Revised Statutes, which pro- 
 vides that : ' In common law causes 
 
 168
 
 Jurisdiction. 
 
 §91 
 
 tions against patent infringements, and a bill will lie in a federal 
 circuit court between residents of the same State to prevent an 
 anticipated infringement. 86 But the above statutory provision does 
 not confer jurisdiction to issue an injunction in favor of one who 
 has failed to secure a patent. 87 And section 4915 of the federal 
 Revised Statutes, which gives an unsuccessful applicant for a 
 patent the right to apply to a court of equity, and which provides 
 that an adjudication by the court in the applicant's favor shall 
 authorize the commissioner to issue such patent, confers on the 
 court no jurisdiction to enjoin the commissioner from issuing 
 letters patent in favor of one whom he has decided to be entitled to 
 them. 88 
 
 in the Circuit and District Courts 
 the plaintiff shall be entitled to sim- 
 ilar remedies by attachment or other 
 process, against the property of the 
 defendant, which are now provided by 
 the laws of the State in which such 
 court is held for the courts thereof.' 
 Inasmuch as the prohibition of sec- 
 tion 5242 left the State courts with- 
 out power to grant attachments on 
 mesne process against national banks, 
 no such power was conferred on the 
 Circuit Court by section 915. The 
 power to issue an injunction, how- 
 ever, is inherent in the original jur- 
 isdiction in equity which is conferred 
 upon the Circuit Courts by section 
 629 of the U. S. Revised Statutes, 
 and its amendments, and is not cur- 
 tailed by the provisions of the sec- 
 tion upon which the appellant bank 
 relies." 
 
 86. Sherman v. Nutt, 35 Fed. 149. 
 A court of equity has jurisdiction to 
 enjoin an attempted intimidation by 
 one issuing circulars threatening to 
 bring suits for infringement against 
 persons dealing in a competitor's pat- 
 ent article, the bill charging and the 
 proofs showing that the charges of 
 infringement were not made in good 
 
 faith, but with malicious intent to 
 injure complainant s business. Emack 
 v. Kane : 34 Fed. 46. But there is no 
 jurisdiction in a court of equity to 
 enjoin a libel on the rights or title 
 of an owner of letters patent. Bal- 
 timore Car-Wheei Co. v. Bemis, 21 
 Fed. 47. 
 
 87. Illingworth v. Atha, 42 Fed. 
 141. In this case it was also held 
 as a matter of practice that a com- 
 plainant who alleges that defendant 
 induced the commissioner of patents 
 to decide in his favor, as to the pri- 
 ority of an invention, by means of 
 false testimony and misleading state- 
 ments, but who nowhere particular- 
 izes the falsehood or perjury, and 
 who introduces practically the same 
 evidence on the hearing of a motion 
 to restrain defendant from receiving 
 letters patent that had already been 
 considered by the commissioner, is 
 not entitled to a preliminary injunc- 
 tion. 
 
 88. Illingworth v. Atha, 42 Fed. 
 141. In this case it was also held that 
 under the Act of Congress of 1875 as 
 amended in 1887, providing that no 
 civil suit shall be brought in the Fed- 
 eral courts against any person by 
 
 169
 
 §§ 92, 93 Jurisdiction. 
 
 § 92. Exclusive federal jurisdiction of equitable maritime 
 cases. — Under the United States constitution extending the power 
 of the federal courts to " all cases of admiralty and maritime 
 jurisdiction/' and section 711 of the Revised Statutes of the 
 United States, giving to federal courts exclusive jurisdiction of 
 all " civil causes of admiralty and maritime jurisdiction ; saving 
 to suitors in all cases the right of a common law remedy, when 
 the common law is competent to give it," the courts of the States 
 Lave no jurisdiction of an injunction or other equitable action to 
 enforce a maritime lien, but the federal courts have exclusive 
 jurisdiction of such equitable actions. 89 
 
 § 93. Ancillary jurisdiction of the federal courts. — It has been 
 decided by the Supreme Court of the United States that when a 
 bill is filed in a Circuit Court of the United States, to enjoin a 
 judgment in that court, it is not to be considered an original bill, 
 but as a continuation of the action at law. 90 The statute which 
 forbids a federal court to grant an injunction to stay proceedings 
 in a State court, does not prevent its enjoining a suit on a replevin 
 bond, after the replevin suit has been removed to the federal courts, 
 and in such a case the bill for injunction is merely ancillary to the 
 replevin case, of which the State court had ceased to have juris- 
 diction. 91 And a State railroad commission may be enjoined by 
 
 any original process or proceeding in commissioner. Butterworth v. Hill, 
 
 any other district, than that whereof 114 U. S. 128, 5 S. Ct. 796, 29 L. 
 
 he is an inhabitant, the Circuit Court Ed. 119." 
 
 of New Jersey has no jurisdiction 89. Brown v. Gray, 70 Hun (N. 
 over the patent commissioner whose Y.), 261, 24 N. Y. Supp. 61. See, 
 official residence is the District of 555, 18 L. Ed. 451; The Belfast, 7 
 Columbia. Per Green, J.: "A Fed- Wall. 625, 19 L. Ed. 266; Pelham 
 eral court acquires jurisdiction only Town v. Schooner, 3 Fed. 457. 
 by a service of process or by a vol- 90. Minnesota Co. v. St. Paul Co., 
 untary appearance. Herndon v. Ridg- 2 Wall. 633, 19 L. Ed. 886. See Con- 
 way, 17 How. 424. Under exactly well v. Valley Canal Co., 4 Biss. 200. 
 similar circumstances in a suit 91. Kern v. Huidekoper, 103 U. S. 
 brought under this section, 4915, the 494, 26 L. Ed. 354. 
 Supreme Court has decided that the See § 88 herein as to further con- 
 Circuit Court for the district of sideration of the statute, Rev. St. § 
 Vermont had no jurisdiction over the 720 (U. S. Comp. Stat. 1901, p. 581). 
 
 170
 
 JUEISDICTION. § 94 
 
 a federal court from putting in force an order which would operate 
 to cause damages for which the complainant has no adequate 
 remedy at law where jurisdiction is conferred upon such court by 
 reason of the diverse citizenship of the parties and the federal 
 questions which are involved. 92 
 
 § 94. Jurisdiction according to value in dispute. — In deter- 
 mining the jurisdiction on appeal from a decree on a bill for an 
 injunction, the matter in dispute is the value of the defendant's 
 right, which he is restrained from exercising, rather than the 
 amount of damage done to plaintiff by the act which he seeks to 
 restrain. Thus, when a bill was brought to restrain the main- 
 tenance of an awning, the matter in dispute was held to be the 
 value of the right to maintain the awning, not the amount of 
 damage done by it to plaintiff. 93 And where the Washington 
 Market Company was enjoined by its lessees from selling the 
 stalls in the market to the highest bidder, the value of the right so 
 to sell, which the company claimed and the court below denied, 
 was held to determine the appellate jurisdiction of the Supreme 
 Court of the United States. 94 So in determining the question of 
 jurisdiction the amount of the right which it is sought to protect 
 and not the damages which may be recovered for the invasion of 
 
 92. Railroad Commission v. Rosen- $2,000 was supported by abundant 
 baum Grain Co., 130 Fed. 110. evidence; and if the matter in dis- 
 
 93. Whitman v. Hubbell, 30 Fed. pute were simply the threatened in- 
 81; Railroad Company v. Ward, 2 jury to the plaintiffs, this finding of 
 Black, 485, 19 L. Ed. 311. In fact might be accepted as in itself 
 Rainey v. Herbert, 55 Fed. 443, conclusive; but, if this were other- 
 Dallas, J.: "This is an appeal wise, the want of a sufficient amount 
 from a decree for an injunction of damage having been alleged and 
 restraining the erection of certain proved to give the federal courts 
 coke ovens. The jurisdiction of jurisdiction, would not defeat the 
 the Circuit Court was dependent upon remedy, as the prohibition of the con- 
 the amount involved in the contro- templated erection of ovens was the 
 versy. There was some conflict of matter of controversy, and the value 
 testimony as to the amount of dam- of that object (admittedly in excess 
 age which would result to the com- of the jurisdictional amount) must 
 plainanta from the operation of the govern." 
 
 ovens, but the court below found that 94. Market Company v. Hoffman, 
 
 the averment that it would exceed 101 U. S. 112. 
 
 171
 
 §§ 95, 96 Jueisdiction. 
 
 that right is decisive thereof. 95 And where the object of the in- 
 junction is to restrain the use of property, by a party other than 
 the owner, the right to use the property is the matter in dispute, 
 and the value of such right must determine the question of juris- 
 diction. 96 Jurisdiction of suits to restrain the infringement of 
 trade-marks, is not given to the United States Circuit Courts, 
 except where the matter in dispute exceeds a certain sum or value, 
 but this amount in dispute does not depend on the profits sought 
 to be recovered. 97 
 
 § 95. Injunctive jurisdiction of Territorial courts. — Territorial 
 courts, from which writs of error and appeals to the Supreme Court 
 of the United States are allowed and taken " in the same manner 
 and under the same regulations as from the Circuit Courts of the 
 United States," can grant an injunction in favor of plaintiff, 
 pending an appeal taken by him from such court to the Supreme 
 Court of the United States. 98 Under section 23 of the enabling 
 act, admitting Washington as a State (25 U. S. Stats. 676), 
 which provides that the federal courts thereby created shall be the 
 successors of the territorial courts as to certain cases " pending " 
 in the latter, the circuit court for that district may punish as a 
 contempt the violation of an injunction, granted by final decree of 
 the territorial court, against interference with fishery privileges 
 guaranteed to the Indians by treaty with the United States. 99 And 
 any court succeeding to a territorial court may proceed with a 
 judgment obtained therein, as if the case had been commenced and 
 proceeded to judgment in such succeeding court. 1 
 
 § 96. Jurisdiction of perpetual injunctions The jurisdiction 
 
 95. Board of Trade v. Cella Com- Co. v. Eureka Hill Min. Co. 5 Utah, 
 mission Co., 145 Fed. 28; Louisville 182, 12 Pae. 660. 
 
 & U. R. Co. v. Bitterman. 144 Fed. 99. United States v. Taylor, 44 
 
 34. Fed. 2. 
 
 96. Oleson v. Northern Pac. R. 1. United States v. Taylor, 44 Fed. 
 Co., 44 Fed. 1. 2. See, also, Wegman v. Childs, 41 
 
 97. Symonds v. Greene, 28 Fed. N. Y. 159; Sherman v. Felt, 2 N. Y. 
 834. 186. 
 
 98. Bullion Beck & Champion Min. 
 
 172
 
 Jurisdiction. § 96 
 
 of perpetual injunctions is vested, it is obvious, in the court which 
 tries the cause at the final hearing, 2 and renders judgment therein, 
 for a perpetual injunction is either the whole or a part of the final 
 judgment. 3 
 
 2. Hamilton v. Icard, 112 N. C. in Maine, by L. 1881, ch. 68, § 22, 
 589, 17 S. E. 519. that " perpetual injunctions may be 
 
 3. Jackson v. Bunnell, 113 N. Y. granted by the court, or any justice 
 216, 220, 21 N. E. 79. It is enacted thereof, making final decree." 
 
 173
 
 § 97 Classification and Foem. 
 
 CHAPTER ni. 
 
 CLASSIFICATION AND FORM. 
 
 SECTION 97. Preventive and mandatory. 
 
 97a. Mandatory injunctions — Rules as to granting generally. 
 
 98. Mandatory injunctions — Requisites of. 
 
 99. Same subject — In New Jersey. 
 
 100. Same subject — In New York and other States. 
 
 101. Mandatory injunctions more favored than formerly. 
 
 102. The effectiveness of mandatory injunctions. 
 
 103. Relief by mandatory injunction — Illustrations. 
 
 104. Same subject — Illustrations continued. 
 
 105. Common and special injunctions — Common abolished. 
 105a. Special injunctions further considered. 
 
 106. Prerogative writs of injunction. 
 
 107. Perpetual and preliminary injunctions. 
 
 108. Perpetual injunctions further considered. 
 
 109. Interlocutory or temporary injunctions. 
 109a. Same subject — Object of. 
 
 109b. Preliminary injunctions further considered. 
 
 110. Same subject. 
 
 110a. Injunction by order in New York. 
 
 111. Interim restraining orders generally. 
 
 Ilia. Interim restraining orders in particular jurisdictions. 
 
 112. Invalid preliminary injunctions. 
 
 113. Injunction against plaintiff. 
 
 114. Form and contents of injunction order. 
 
 115. Injunction order to be specific. 
 
 116. Settling and correcting form of permanent injunction 
 
 § 97. Preventive and mandatory defined and distinguished. — 
 With reference to their nature, injunctions are divided into two 
 classes, preventive and mandatory. They are more generally pre- 
 ventive than mandatory; they seek to prevent a meditated wrong 
 more often than to redress an injury already done. 1 The injunc- 
 tion decree is sometimes both preventive and mandatory. Thus 
 defendants who had begun to erect a bridge over a court were re- 
 
 1. Story, Eq. Jur., § 862. 
 
 174
 
 Classification and Form. § 97a 
 
 strained from continuance and ordered to remove the portion 
 already built. 2 A mandatory injunction is one which commands 
 the doing of some positive act by the defendant, 3 which will some- 
 times change the status of the parties; while a preventive injunc- 
 tion restrains the doing of the thing and preserves the status until 
 the rights of the parties are determined. 4 It would, however, be 
 misleading to say that it is distinctive of a mandatory injunction 
 to change the status of parties, for very often its most important if 
 not entire effect is to restore the plaintiff to the original situation, 
 as will appear in the following sections. 5 
 
 § 97a. Mandatory injunctions ; rules as to granting generally. 
 — An applicant for a preliminary mandatory injunction, quite as 
 much as others, is required, however, to show a clear right, 6 and a 
 case of necessity or extreme hardship, 7 and it is declared that the 
 court will seldom grant a mandatory injunction pendente lite 
 unless the plaintiff's right is so clear that the denial of the right 
 must be either captious or unconscionable. 8 Therefore mandatory 
 injunctions which in effect anticipate the judgment or give some 
 of the relief which it is sought to obtain by the decree of the court 
 should be granted with caution and only when the necessity is 
 great. Applications therefor call for great care upon the part of 
 the court to which they are made, but not only is the power to 
 grant them undoubted, but the remedial and restraining power of a 
 
 2. Salisbury v. Andrews, 128 Mass. Div. (N. Y.) 380, 44 N. Y. Supp. 15; 
 336. See Knoxville v. Africa, 77 Fed. 501, 
 
 3. Bailey v. Schnitzius, 45 N. J. 47 U. S. App. 74, 246, 23 C. C. A. 
 Eq. 178, 183, 16 Atl. 680; Rogers Lo- 252. 
 
 comotive & Machine Works v. Erie 7. Bailey v. Schnitzius, 45 N. J. 
 
 Ry. Co., 20 N. J. Eq. 379, 387. Eq. 178, 16 Atl. 680; Delaware, L. 
 
 4. Beach, Modern Eq. Jur., § 639; & W. R. Co. v. Central Stock Yard 
 Chicago, etc., R. Co. v. Kansas City, Co.. 43 N. J. Eq. 605, 12 Atl. 374, 
 etc., R. Co., 38 Fed. 60. 13 Atl. 615. See Tanner v. Wall- 
 
 5. See Lynch v. Union Institute for brunn, 77 Mo. App. 262; Post v. 
 Saving, 158 Mass. 394, 33 N. E. 603. Southern R. Co., 103 Tenn. 184, 52 
 
 6. Chicago, etc. R. Co. v. Kansas S. W. 301, 55 L. R. A. 481. 
 
 City, etc., R. Co., 38 Fed. 60; Hagen 8. West Side Elec. Co. v. Consol. 
 
 v. Beth, 118 Cal. 330, 50 Pac. 425; Subway Co., 87 App. Div. (N. Y.) 
 Jameson v. Hartford F. I. Co.,, 14 App. 550, 84 N. Y. Supp. 1052. 
 
 175
 
 §9Ta 
 
 Classification and Form. 
 
 court of equity would be greatly impaired if such was not the 
 rule. 9 The more general rule is that a mandatory injunction will 
 not be granted until final hearing ; after there has been a trial of 
 the action, 10 and not then unless necessary to the complete execution 
 of the decree of the court. 11 But while the jurisdiction of a court 
 of equity by way of mandatory injunction is rarely exercised, it is, 
 nevertheless, too well established to admit of doubt. 12 Such an 
 
 9. People v. McKane, 78 Hun (N. 
 Y.), 154, 165, 28 N. Y. Supp. 981. 
 Per Brown, J. 
 
 10. United States. — McCauley v. 
 Kellogg, Fed. Cas. No. 8688, 2 Woods, 
 13. 
 
 California. — Hagen v. Beth, 118 
 Cal. 330, 50 Pac. 425. 
 
 Georgia. — Thomas v. Hawkins, 20 
 Ga. 126. 
 
 Louisiana. — See Black v. Good In- 
 tent Towboat Co., 31 La. Ann. 497. 
 
 Maryland. — Washington University 
 v. Green, 1 Md. Ch. 97. 
 
 New Jersey. — Delaware, L. & W. 
 R. Co. v. Central Stock Yard Co., 43 
 N. J. Eq. 71, 10 Atl. 490; Rogers Lo- 
 comotive & M. Works v. Erie R. Co., 
 20 N. J. Eq. 379. 
 
 ~New York. — Zipp v. Barker, 6 App. 
 Div. 609, 40 N. Y. Supp. 325. 
 
 Pennsylvania. — Brittain v. Ely, 4 
 Wkly. Notes Cas. 412. 
 
 A mandatory injunction is 
 rarely granted before final hear- 
 ing or before the parties have had 
 a full opportunity to present all the 
 facts in such manner as will enable 
 the court to see and judge what the 
 truth may be. It is always granted 
 cautiously and is strictly confined to 
 cases where the remedy at law is 
 plainly inadequate. A preliminary 
 mandatory injunction will be ordered 
 only in case of extreme necessity. 
 Bailey v. Schnitzius, 45 N. J. Eq. 
 178, 184, 16 Atl. 680. Per Scudder, 
 
 J. See, also, Lord v. Carbon Iron 
 Mfg. Co., 38 N. J. Eq. 452; Long 
 wood Valley R. Co. v. Baker, 27 N. 
 J. Eq. 166, 171. 
 
 11. Delaware, L. & W. R. Co. v. 
 Central Stock- Yard Co.. 43 N. J. Eq. 
 71, 10 Atl. 490, where the court said: 
 "There are a few exceptions to this 
 rule. Obstructions to easements and 
 rights of like nature may be re- 
 moved by mandatory injunction 
 granted before final hearing, but 
 even in cases of this class the power 
 is exercised with great caution and 
 only in cases of extreme necessity. 
 This subject was exhaustively con- 
 sidered by Chancellor Zabriskie in 
 Rogers Locomotive Works v. Erie 
 R. Co., 5 C. L. Gr. 379, and the 
 rules laid down by him in that case 
 have, I believe, always since been con- 
 sidered the establisned principles of 
 this court. The defendants in that 
 case had refused to carry merchan- 
 dise over their road lor the plain- 
 tiffs for the legal rate of freight, and 
 the plaintiffs then filed a bill asking 
 for a mandatory injunction to com- 
 pel defendants to perform their legal 
 duty. The writ after argument was 
 refused distinctly on the ground that 
 it was not within the power of the 
 court to grant it before final hear- 
 ing." 
 
 12. Sproat v. Durland, 2 Okla. 24. 
 43, per the court. 
 
 United States Circuit Court 
 
 176
 
 Classification ajtd Form. § 98 
 
 injunction may issue at the beginning of a suit when necessary for 
 the protection of easements and other similar rights. 13 And a final 
 mandatory injunction will sometimes be granted in cases in which 
 a preliminary preventive injunction would properly have been 
 refused, for a trial gives the certainty of fact to what was before 
 only a probability or matter of opinion. 14 
 
 § 98. Mandatory injunctions; requisites of A mandatory in- 
 junction may be in the alternative form, but it must command 
 something to be done, and with such positiveness as not to leave 
 compliance with the mandate wholly at the pleasure of the person 
 enjoined. 15 An injunction may be mandatory in effect though 
 preventive in form. Thus where a defendant carrier was asked to 
 be enjoined from refusing to receive live stock, the injunction was 
 construed to mean that the defendant be compelled to receive such 
 stock from plaintiff. 16 And an injunction enjoining " from refus- 
 ing to pay " obviously in effect requires payment, and is therefore 
 mandatory. Such a form of injunction is authorized in Maryland 
 by the Statute of 1886. 17 So, too, in England in earlier times, the 
 
 has power to issue a mandatory in- proper, and was clearly not manda- 
 
 junction. Chattanooga T. R. Co. v. tory." 
 
 Felton, 69 Fed. 273. 16. Delaware, L & W. R. Co. v. 
 
 13. Hodge v. Giese. 43 N. J. Eq. Central Stock Yard Co., 43 N. J. Eq. 
 342, 11 Atl. 484. 17, 75, 10 Atl. 490. See, also, At- 
 
 14. Nicholson v. Getchell, 96 Cal. torney General v. Railroad Com- 
 394, 31 Pac. 265. panies 35 Wis. 425, 520. 
 
 15. Lawrence v. Ingersoll, 88 17. Board of County School Com- 
 Tenn, 52, 12 S. W. 422. The court: missioners v. Board of County School 
 "It is sufficient to say that the in- Comrs., 77 Md. 283, 26 Atl. 115. 
 junction is not mandatory. The in- where the court said: "The injunc- 
 junction prohibited the meeting and tion decreed by the Circuit Court is 
 acting of defendants without giving peculiar in its form. It enjoins the 
 complainant notice, and permitting county commissioners from refusing 
 him to act with them. It did not com- to pay the treasurer of the old board 
 mand his admission except the re- money which was payable to the 
 spondents proceeded to act. It pro- boaxd of school commissioners ol 
 hibited their acting, but authorized Washington county. This, of course, 
 them to avoid this prohibition on is equivalent to an affirmative order 
 compliance with conditions which that they shall make such payment, 
 they could accept or not as they saw In Carlisle v. Stevenson, 3 Md. Ch. 
 
 177 
 12
 
 §98 
 
 Classification and Form. 
 
 court of chancery would not ordinarily on motion issue a manda- 
 tory injunction commanding an act to bo done, 18 but in some cases 
 
 503, Chancellor Johnson said that 
 this form of injunction originated 
 with Lane v. Newdigate, 10 Ves. 193, 
 and that the principle of that case 
 scorned never to have been repudiated. 
 This practice is entirely unobjection- 
 able, but it does not seem to have 
 been frequently followed in this 
 State. The injunction decreed was, 
 however, not within the special 
 prayer for this writ contained in the 
 bill of complaint. But tlie Act of 
 1886, ch. 441 (Code, art. 10 § 177), 
 provided that ' the court may at any 
 stage of a cause or matter, on the 
 application of any party thereto, or 
 party in interest, by motion or peti- 
 tion, or of its own motion, order the 
 issue of a mandate (affirmative In- 
 junction), or injunction directing and 
 commanding any party to such cause 
 or matter, or any party properly 
 brought before it under the existing 
 practice, to do, or abstain from doing, 
 any act or acts, wnether conjointly 
 or in the alternative, whether in the 
 nature of special performance or 
 otherwise named in such mandate or 
 injunction and may make such terms 
 and conditions (as to security, etc.), 
 as to it may seem fit, preliminary to 
 the granting of such mandate or in- 
 junction.' We think that the injunc- 
 tion was authorized by this legisla- 
 tion." 
 
 18. This is the conclusion reached 
 by the chancellor in Rogers Locomo- 
 tive Works v. Erie R. Co., 20 N. J. 
 Eq. 379, 388, on a review of the Eng- 
 lish authorities : " In Drewry on In- 
 junctions, p. 260, it is laid down: It 
 seems settled that equity has not ju- 
 risdiction to compel, on motion, the 
 performance of any substantial act. 
 
 In 3 Dan. Chan. Prac. 1767, it is said: 
 It is to be observed that the court 
 will not, by injunction granted on in- 
 terlocutory application, direct the de- 
 fendant to perform an act, but might, 
 upon motion, order the defendant to 
 pull down a building which was 
 clearly a nuisance to the plaintiff. 
 Lord Hardwicke, in an anonymous 
 cause in 1 Ves. Jun. 140, restrained 
 the further digging of a ditch, but re- 
 fused, on motion before answer, to or- 
 der the part dug to be filled up. In 
 Hooper v. Broderick, 11 Sim. 47, a 
 preliminary injunction to restrain a 
 tenant from discontinuing to keep an 
 inn was dissolved on the ground that 
 it was mandatory — the same as if he 
 was commanded to keep an inn. In 
 Blakemore v. Glamorganshire, etc., 
 Co., 1 Myl. & K. 154, Lord Brougham, 
 after a review of the cases (p. 183) 
 and quoting with approbation what 
 Lord Hardwicke said in Ryder v. Ben- 
 tham, that ' he had never known an 
 order to pull down on motion, and but 
 rarely by decree,' refused so much of 
 the injunction prayed for as directed 
 the defendant Powell to fill up the 
 collateral pond. The cases of East 
 India Co. v. Vincent, 2 Atk. 83 ; Spen- 
 cer v. London, etc., R. Co., 8 Sim. 
 193, and of Durell v. Pritchard, L. 
 R. 1 Ch. App. 244, are to the same ef- 
 fect. And in the last case Lord 
 Romilly held that the court upon 
 final hearing, could not issue a man- 
 datory injunction, directing a wall 
 to be taken down, yet the Lords Jus- 
 tices, on appeal, held that it had the 
 power but that in the case before 
 them it should not be exercised, and 
 dismissed the appeal." 
 
 178
 
 Classification and Foem. 
 
 98 
 
 introduced a mandatory clause into a restraining order requiring 
 defendant to remove the erection complained of on the ground that 
 he effected the act he was restrained from doing by continuing such 
 errction. 19 And in a later case in England it is decided that a 
 
 19. To this effect the chancellor 
 studied the English cases in the Rog- 
 ers Works case before cited : " In 
 Robinson v. Lord Byron, 1 Bro. C. C. 
 588, which is referred to as the lead- 
 ing case for mandatory injunction, 
 Lord Thurlow ordered an injunction 
 to restrain defendant from using his 
 dams and other erections, so as to 
 prevent the water from flowing to the 
 complainant's mill in such quantities 
 as it had ordinarily done before 
 April, 1785. The effect of this may 
 have been to compel the removal of 
 the part erected after 1785. . 
 In Lane v. Newdigate, 10 Ves. 102, 
 the object of the injunction was to 
 compel the xestoring of a stop-gate 
 which was wrongfully removed. Lord 
 Eldon would not order it to be re- 
 stored but restrained the preventing 
 the use of the water by complainant 
 by the removal of a stop-gate which 
 was equivalent to an order to restore 
 it, and was so intended. In Rankin 
 v. Huskisson, 4 Sim. 13, the court re- 
 strained the defendant from permit- 
 ting an erection to remain; this was 
 equivalent to an order to remove it. 
 But it is like the others; simply re- 
 moving that by which the defendannt 
 continued the nuisance to be re- 
 strained. In Mixborough v. Bower, 7 
 Beav. 127, Lord Langdale ordered an 
 injunction to restrain permitting 
 the communication complained of (by 
 which complainants' mine was 
 flooded) to remain open. The injunc- 
 tion was to prevent the flooding of 
 the mine by restraining or removing 
 
 the means by which the defendant 
 continued to do it. In the North of 
 England R. Co. v. Clarence R. Co., 1 
 Coll. 507, the injunction prayed for 
 was against maintaining a wall, and 
 after the rights of the parties had 
 been referred to and settled in the 
 court of exchequer, V. C. Bruce hesi- 
 tated to grant the injunction, though 
 he held, p. 521, that mandatory in- 
 junctions might be granted; yet he 
 referred the case to Lord Ch. Lynd- 
 hurst, who, it is stated, granted the 
 injunction in nearly the terms of the 
 prayer; but whether it included this 
 mandatory part does not distinctly 
 appear. The case established the right 
 of the complainant to build a bridge 
 over the railway of the defendant, and 
 to rest the supports of the scaffolding 
 on the soil; and the mandatory 
 prayer was that defendants should re- 
 move a wall placed on their grounds 
 to hinder it. In Greatrex v. Great- 
 rex, 1 DeG. & S. 692, the injunction 
 was against preventing the plaintiffs 
 from having access to the books of 
 the firm, and against removing them 
 from or keeping them at any other 
 place than the place of the business 
 of the partnership, as the defendant 
 had removed the books; this was 
 equivalent to an order to restore 
 them, but yet it did not command 
 any act to be done. In Hervey v. 
 Smith, 1 Kay & J. 389, the injury 
 was covering with tiles the chimneys 
 from the butler's pantry of the com- 
 plainant; Lord Hatherly, on the au- 
 thority of Robinson v. Lord Byron, 
 
 179
 
 § 09 Classification ajtd Form. 
 
 mandatory injunction, the object of which is to procure the re- 
 moval of buildings should not restrain the owners from allowing 
 them to remain but should in express terms direct their removal. 2 * 
 Under the New Brunswick statute the court may grant mandatory 
 injunctions as in other cases but always on notice to the opposite 
 party. But on application for dissolution of an ex parte injunction 
 not mandatory the court may grant a mandatory injunction in 
 addition to the injunction so granted ex parte, or in its stead. 21 
 
 § 99. Same subject ; in New Jersey. — In New Jersey a manda- 
 tory injunction will not be ordered on a preliminary or interlocu- 
 tory motion but only on final hearing, except in extreme cases, and 
 even then the directly mandatory form will be avoided and the 
 same result reached if possible by means of a prohibitory restrain- 
 ing order. Thus an injunction will not be granted to compel a 
 common carrier to transport goods at the rates fixed by law but 
 will issue to prevent him from entering into an agreement not to 
 transport them at such rates. 22 And where a minister was im- 
 properly excluded from his church, the trustees were not enjoined 
 to open the church to him but to refrain from continuing to keep 
 the church closed. 23 In a later case, however, in this State it is 
 said that a mandatory injunction to accomplish its purpose must 
 command or coerce the defendants to do certain affirmative acts, 
 not merely to remain inactive or refrain from doing an act. 24 A 
 mandatory injunction will be awarded as matter of course, when- 
 ever it is the necessary or more appropriate process for carrying the 
 decree of the court into effect. 25 
 
 granted an injunction the effect of 21. N. B. Consol. Stat., p. 398. 
 
 which was and was intended to be to 22. Rogers Locomotive, etc., Works 
 
 compel the defendant to remove the v. Erie E. Co., 20 N. J. Eq. 379. 
 
 tiles; but he declined to adopt the 23. Whitecar v. Michenor, 37 N. J. 
 
 mandatory form, but restrained the Eq. 6, 14. 
 
 defendant from doing any act to pre- 24. Bailey v. Schnitzius, 45 N. J. 
 
 vent the smoke from arising." Eq. 178, 184, 16 Atl. 680. Per Scud- 
 
 20. Jackson v. Normanby Brick der, J. 
 
 Co., 86 Law J. Ch. 407, 80 Law T. N. 25. Stanford v. Lyon, 37 N. J. Eq. 
 
 S. 482. 94 
 
 180
 
 Classification and Form. § 100 
 
 § 100. Same subject; in New York and other States In New 
 
 York a mandatory injunction may issue to compel the delivery of 
 specific property by one who wrongfully detains it, if the ordinary 
 legal remedies will not suffice. 26 Thus executors may maintain an 
 action in equity for a mandatory injunction to compel the delivery 
 to them of an article bequeathed as a specific legacy to a legatee as 
 a memento of the testator, and of which they have failed to obtain 
 possession in an action of replevin by reason of defendant's avoid- 
 ance of the execution issued upon a judgment therein for the re- 
 covery of the article. 27 Under a Connecticut statute which pro- 
 vided that an injunction may be granted against the malicious 
 erection upon one's own land of any structure intended to annoy 
 or injure any proprietor of adjacent land; 28 a defendant who had 
 maliciously and stealthily erected such an injurious structure and 
 completed it before an application could be made, was ordered to 
 " discontinue," that is remove it, under a penalty of $500, though 
 it was in some degree useful to defendant as a screen to his 
 premises. 29 It has been since held, however, that the malicious 
 acts intended by the statute must, as a general rule, go beyond the 
 petty hostilities of business rivalry and be determined by the 
 character, location, and use of the structures erected, rather than 
 by an inquiry into the actual motive in the mind of the person 
 erecting it. 30 Under the Georgia Code a mandatory injunction is 
 disallowed, 31 and an order restraining a person from doing a cer- 
 
 26. Hammond v. Morgan, 101 N. But before the equitable relief can be 
 
 Y. 179, 187, 4 N. E. 328, where the granted the facts conferring equity 
 
 court said : " The ordinary remedies jurisdiction should be alleged and 
 
 of a party against one who has con- must be proved." 
 
 verted and wrongfully detains his 27. Cain v. Cain, 28 Abb. N. C. 
 
 chattels or choses in action is by an (N. Y.) 423. 
 
 action of trover or replevin. But in 28. Gen. Stat., p. 477, § 4. 
 
 peculiar cases, where from the na- 29. Harbison v. White, 46 Conn, 
 
 ture of the case or of the property 106. 
 
 detained, neither of such actions will 30. Gallagher v. Dodge, 48 Conn, 
 
 give sufficient relief, an equitable ac- 387. 
 
 tion may be instituted for the specific 31. Section 3224. And this was 
 
 delivery of the property, and judg- probably the case before the Code, 
 
 ment in such an action may be en- Thomas v. Hawkins, 20 Ga. 126. 
 forced by punishment for contempt. 
 
 181
 
 § 101 Classification and Form. 
 
 tain act, which indirectly accomplishes the result of a mandatory 
 injunction, is not authorized. 32 The Compiled Utah Laws of 1888, 
 § 3300, authorized mandatory as well as preventive injunctions. 23 
 The rule in Louisiana since 1844 has been that a preliminary man- 
 datory injunction might issue on motion to remove an obstacle 
 which prevented a party from getting out of or into his own house. 34 
 So in 1866 the city of New Orleans was compelled by injunction to 
 close up certain openings made by it in a wall in the rear of a 
 dwelling house which so interfered with the privacy of a family 
 residence as to be deemed an irreparable injury. 35 
 
 § 101. Mandatory injunctions more favored than formerly 
 
 Sir George Jessel, Master of the Kolls in 1875 expressed the 
 opinion that the same caution, neither more nor less, ought to bo 
 exercised by courts in granting mandatory injunctions as in grant- 
 ing preventive. 36 That the old prejudice against mandatory in- 
 junctions has ceased to exist appears also in tho fact that section 
 16 of the Act of Congress, known as the Interstate Commerce Law, 
 empowers the courts of the United States to issue a writ of injunc- 
 tion, mandatory, or othenvise to restrain a common carrier from 
 further continuing a violation of an order of the Interstate Com- 
 mission, and enjoining obedience to such an order. 37 In England, by 
 force of Lord Cairns' Act, 38 the court might in its discretion award 
 damages to be paid by defendant instead of issuing a mandatory 
 injunction against him. 39 When the plaintiff has a clear right it 
 may be better for the wrongdoer also, as in the case of a continued 
 trespass, to be required by mandate to undo what he has done as 
 otherwise he could be persecuted with daily suits, die in diem, for 
 
 32. Vaughn v. Yawn, 103 Ga. 557, 500— Jessel, M. R.: "As to manda- 
 29 S. E. 759. tory injunctions, their history is a 
 
 33. Henderson v. Ogden City R. curious one." 
 
 Co., 7 Utah, 199, 26 Pac. 286. 37. See Interstate, et«., Commis- 
 
 34. McDonogh v. Calloway, 7 Rob. sion v. Lehigh Valley R. Co., 49 Fed. 
 (La.) 442. 177. 
 
 35. Pierce v. New Orleans, 18 La. 38. 21 & 22 Viet., ch. 27. 
 
 Ann. 242. 39. Smith v. Smith, L. R. 20 Eq. 
 
 36. Smith v. Smith, L. R. 20 Eq. 500— Jessel, M. R. 
 
 182
 
 Classification and Foem. 
 
 §102 
 
 the continual damages flowing from the continuance of the tres- 
 
 40 
 
 pass. 
 
 § 102. The effectiveness of mandatory injunctions. — Where a 
 
 defendant is restrained from a threatened violation of plaintiff's 
 clearly established rights and has already begun the violation with 
 knowledge of such rights, a mandatory clause will sometimes be 
 added requiring defendant to restore plaintiff to the original situa- 
 tion. 41 The court will not compel an innocent plaintiff, whose 
 rights have been encroached upon by a wrongdoer, to sell them at a 
 valuation, but will compel the wrongdoer to restore them to their 
 original condition, and to pay the damages sustained by plaintiff 
 pending the suit, 42 but in such a case the defendant will not be 
 
 40. Wheelock v. Noonan, 108 N. Y. 
 179, 185, 15 N. E. 67. 
 
 41. Lynch v. Union Inst, for Sav- 
 ings, 158 Mass. 374, 33 N. E. 603, 
 ■where Holmes, J., said : " If we are 
 to infer, though it does not appear 
 with definiteness, that the defendant 
 has been at some expense already on 
 the plaintiff's premises, we see no rea- 
 son to doubt that it has acted with 
 knowledge of the plaintiff's rights. 
 What it has done outside of the plain- 
 tiff's premises and not interfering 
 with him is no concern of his. The 
 defendant's outlay does not better its 
 case on the question of a prohibitory 
 injunction, and we see no reason why 
 it should not be required to restore 
 the premises to their original condi- 
 tion." In Ex parte Chamberlain, 55 
 Fed. 704, the injunction was in this 
 form : " This cause came on to be 
 heard on petition, rules to show cause, 
 return thereto, and affidavits. Hear- 
 ing the same and upon due considera- 
 tion thereof it is ordered adjudged 
 and decreed that an injunction do is- 
 sue to M. V. Tyler, sheriff of Aiken 
 county, his deputies and agents, en- 
 
 joining and restraining them from 
 further intermeddling, interfering 
 with, keeping and holding the per- 
 sonal property destrained upon by 
 him belonging to the petitioner as re- 
 ceiver of the S. C. Railway Company, 
 or in his care and custody as receiver 
 and common carrier, and that this in- 
 junction remain of force until the fur- 
 ther order of this court. It is further 
 ordered that the said property be re- 
 stored to the custody of the receiver 
 of this court and that the marshal put 
 him in possession thereof." Plaintiff 
 having alleged, and the evidence 
 snowing, that defendant had erected 
 a gate across the entrance to an alley 
 for the purpose of excluding persons 
 not using it with his permission, 
 equity will interfere to remove the 
 gate, and it is immaterial that plain- 
 tiff might open the gate himself, so 
 long as his right to use the alley is 
 disputed and resisted by defendant. 
 Welsh v. Taylor, 50 Hun, 137, 2 N. Y. 
 Supp. 815. 
 
 42. Tucker v. Howard, 128 Mass. 
 361, Gray, C. J.: "The defendant 
 having by the service of process full 
 
 183
 
 § 103 
 
 ( "i.assii u a i u>\ and Form. 
 
 subjected to ruinous cost, 88 for example, in removing an expensive 
 structure, unless such removal is indispensable to plaintiff's use of 
 his property. 43 But when- the defendant has endeavored to an- 
 ticipate the injunction by hurrying on some building or structure 
 he is wrongfully erecting he will be compelled by mandatory in- 
 junction to pull it down without regard to the ultimate result of 
 the action. 44 
 
 § 103. Relief by mandatory injunction; illustrations. — The 
 cases in which relief by mandatory injunction is proper and will 
 
 notice of the plaintiff's claim, went 
 on to build at his own risk ; and the 
 injury caused to the plaintiff's estate 
 by the defendant's wrongful act being 
 substantial, a court of equity will not 
 allow the wrongdoer to compel inno- 
 cent persons to sell their right at a 
 valuation but will compel him to re- 
 store the premises as nearly as may 
 be to their original condition. Dent 
 v. Auction Mart Co., L. R. 2 Eq. 238, 
 246, 255; Aynsley v. Glover, L. R. 
 18 Eq. 544, and L. R. 10 Ch. 283; 
 Krehl v. Burrell, 7 Ch. D. 551, and 
 11 Ch. D. 146; Schwoerer v. Boyl- 
 ston Market Association, 99 Mass. 
 285; Creely v. Bay State Brick Co., 
 103 Mass. 514; Nash v. New England 
 Ins. Co., 127 Mass. 91; Salisbury v. 
 Andrews, 128 Mass. 336. The decree 
 for a mandatory injunction and for 
 payment of damages pending the suit 
 must therefore be affirmed with 
 costs." In the case last cited the de- 
 fendants were restrained from erect- 
 ing a bridge and commanded to re- 
 move the portion already built. 
 
 43. As to a part of an alley covered 
 by defendant's building, there was no 
 allegation that its use was necessary 
 to the enjoyment of plaintiff's prop- 
 erty, nor did it appear that it was 
 necessary. Held, that it being evident 
 that an award of damages would be 
 
 sufficient remuneration, and there be- 
 ing no allegation that the defendant 
 was not responsible for any damages 
 that might be recoveied, and the 
 building being an expensive structure, 
 equity would not order its removal, 
 though wrongfully erected. Welsh v. 
 Taylor, 50 Hun, 137, 2 N. Y. Supp. 
 815. 
 
 44. Daniel v. Ferguson (1891), 2 
 Ch. D. 27. In this case after the de- 
 fendant received notice on Saturday 
 that an injunction was going to be 
 applied for, he set many men to work, 
 worked all night and on Sunday, and 
 by Monday evening, when he received 
 notice of an interim injunction he 
 had run up his wall to a height of 39 
 feet, the court said : " Whether he 
 turns out at the trial to be right or 
 wrong a building which he has erected 
 under such circumstances ought to 
 be at once pulled down, on the ground 
 that the erection of it was an attempt 
 to anticipate the order of the court. 
 To vary the order under appeal would 
 be to encourage others to hurry on 
 their buildings in the hope that when , 
 they are once up the court might de- J 
 cline to order them to be pulled down. 
 I think that this building ought to 
 be pulled down without regard to the 
 result of the trial." 
 
 184
 
 Classification and Foem. § 10U 
 
 be granted may perhaps be better shown by examples than by any 
 general rule. Thus on a showing of recognized grounds for in- 
 junctive relief such an injunction has been decreed to compel 
 defendant to remove boulders and rocks which he had placed on 
 plaintiff's lots ; 45 to compel the removal of a fence which obstructed 
 plaintiff's right of way though the obstruction was not a nuisance 
 but an invasion of a private right; 46 to compel the removal of 
 governors from gas meters owned by the company where they have 
 been illegally placed thereon by others ; 47 to compel the removal of a 
 bridge whereby egress from plaintiff's land was obstructed and the 
 light and air shut off ; 4S to compel a pastor to deliver possession of 
 the parsonage and church records where another has been recog- 
 nized as pastor by the trustees; 49 to compel the restoration by a 
 sheriff of property which he had distrained and taken from the 
 custody of a court receiver; 50 to compel defendant to deliver to 
 plaintiff a specific chattel in execution of a judgment in replevin ; 51 
 to compel the owner of a house to permit water to flow through the 
 main pipes into a tenant's water pipes; 52 to compel a telegraph 
 company to furnish market reports to subscribers ; M to compel the 
 removal of a fence erected by a local board whereby an abutting 
 owner was deprived of his access to a promenade which for many 
 years had been used as a highway for foot passengers ; 54 to compel 
 the taking down of a wall hastily built by defendant in anticipation 
 of the court's restraint, even though he might turn out on the trial 
 to be right ; 55 to compel the restoring of running water to its natural 
 channel at the suit of a party whose lands include either the whole 
 
 45. Wheelock v. Noonan, 108 N. Y. 191, 13 S. Ct. 791, 793. 
 
 179, 15 N. E. 67. 51. Cain v. Cain. 20 N. Y. Supp. 
 
 46. Avery v. N. Y. Central R. Co., 45. 
 
 106 N. Y. 142, 12 N. E. 619. 52. Brauns v. Glesige, 130 Ind. 
 
 47. Blondell v. Consolidated Gas, 167, 29 N. E. 1061. 
 
 89 Md. 732, 43 Atl. 817, 46 L. R. A. 53. Delafield v. Commercial Tel. 
 
 187. Co., 22 Abb. N. C. 450, 3 N. Y. Supp. 
 
 48. Salisbury v. Andrews 128 921. 
 
 Mass. 336. 54. Ramuz v. Southend LocaJ 
 
 49. Gross v. Wieand, 151 Pa. St. Board (1892 Ch. D.), 67 L. T. 169. 
 639, 25 Atl. 50. 55. Daniel v. Ferguson (1891), 2 
 
 50. In re Tyler, 149 U. S. 164, Ch. D. 27. 
 
 185
 
 § 104 Classification and Form. 
 
 or a part of such channel ; ;<c and tu compel u railroad company to 
 restore a highway which it crosses to its former condition of use- 
 fulness, in an action by the town which is bound to keep it in 
 repair." Under the Compiled Utah Laws of 1888, § 3300, pro- 
 viding that an injunction may be granted when it appears by the 
 complaint that plaintiff is entitled to the relief demanded, which 
 consists in restraining the " commission or continuance " of the 
 act complained of, the court may grant a mandatory, as well as a 
 preventive, writ to a street-railroad company against a defendant 
 who has piled obstructions on its road-bed. 58 
 
 §104. Same subject; illustrations continued. — Continuing the 
 examples begun in the last preceding section, mandatory injunc- 
 tions have been allowed to compel, under the Interstate Commerce 
 Law, common carriers to keep up a continuous passage of freight 
 between them as it comes in the usual course; 09 to compel a South 
 Carolina sheriff to restore property distrained by him when it was 
 in the possession of a receiver of a federal court ; 60 to compel county 
 commissioners to pay over public school money to the de facto 
 school treasurer so that there shall be no stoppage of public business 
 to the prejudice of public education; 61 to compel a gas company to 
 furnish gas at rates fixed by a city ordinance, so long as it continues 
 to enjoy its franchises; 62 to compel defendant to remove a break- 
 water made by him in a boundary stream by which the water in 
 times of freshets is forced with great force against the concave 
 bank of plaintiff's land; 63 to restore a flow of the water which had 
 been cut off from a factory and was necessary to run it; 64 to compel 
 
 56. Corning v. Troy, etc., Fac- missioners v. Board of County School 
 tory, 40 N. Y. 691. Commissioners, 77 Md. 283, 26 Atl. 
 
 57. Jamestown v. Chicago. B. & 115. 
 
 N. R. Co., 69 Wis. 648, 34 N. W. 728. 62. Zanesville Gas Light Co. v. 
 
 58. Henderson v. Ogden City R. Zanesville, 47 Ohio St. 35, 23 N. E. 
 Co., 7 Utah, 199, 26 Pac. 286. 60. 
 
 59. Toledo, etc., R. Co. v. Penn- 63. Nicholson v. Getchell, 96 Cal. 
 sylvania Co., 54 Fed. 730. 394, 31 Pac. 265. 
 
 60. Ex parte Chamberlain, 55 Fed. 64. Isenberg v. East India House 
 704. Estate, 33 L. J. Eq. (N. S.) 392. 
 
 61. Board of County School Com- 
 
 186
 
 Classification and Form. § 105 
 
 a bridge company to change its bridge according to certain specifica- 
 tions so as not to obstruct navigation ; 65 to compel a railroad com- 
 pany to finish its road according to its agreement; 66 to compel 
 health officers not to allow a sewer to remain open ; 67 to compel the 
 closing of a ditch by which plaintiff's lands were being flooded j 68 to 
 compel the delivery of the possession of premises where a 
 conveyance had been decreed; 69 to compel the restoration 
 of church records, 71 and of ancient lights to their former con- 
 dition, 72 even before final hearing where pending the suit, the de- 
 fendant had continued the building complained of, 73 and to restrain 
 the continuance of an obstruction to an easement which consisted 
 of a right to light from above through sky-lights or floor lights in 
 existence at the time the plaintiff took his lease; 74 and to compel 
 defendant to remove a wall from a passage-way in which plaintiff 
 had a light and air easement ; 75 and to compel the removal of build- 
 ings erected in violation of restricting covenants. 76 
 
 §105. Common and special injunctions; common abolished. 
 — In the former English practice provisional injunctions were 
 divided into common and special ;" the common being issued as of 
 course, upon a default, and the special upon proofs and generally 
 on notice to the adverse party. Common injunctions were abolished 
 
 65. Pennsylvania v. Wheeling 71. Lutheran Evang. Church v. 
 Bridge Co.. 13 How. (L. S.) 518. Cri-tgau, 34 Wis. 328. 
 
 66. Storer v. Great Western R. 72. Kelk v. Pearson, L. R. 6 Ch. 
 Co., 2 Y. & C. Ch. 48. 809. 
 
 67. Manchester R. Co. v. Worksop 73. Beadel v. Perry, L. R. 3 Eq. 
 Board, 23 Beav. 209. 465. If plaintiff delays too long the 
 
 68. Foot v. Bronson, 4 Lans. (M. court will refuse an injunction and 
 Y.) 47. leave him to his remedy in damages. 
 
 69. Garretson v. Cole, 1 Harr. & Senior v. Pawson, L. R. 3 Eq. 330. 
 
 J. (Md.) 370; but not to command 74. O'Neill v. Breese, 3 Misc. R. 
 
 the delivery of a void deed. Piersoll (N. Y.) 219, 23 N. Y. Supp. 526. 
 
 v. Elliott, 6 Pet. (L. S.) 95. 75. Tucker v. Howard, 128 Mass. 
 
 A mandatory injunction trans- 361. 
 
 ferring possession of property la 76. Lord Manners v. Johnson, L. 
 
 improper.— Minneapolis k St. L. R. R. 1 Ch. 673; Schwoerrer v. Boyl- 
 
 Co. v. Chicago, Milwaukee & St. P. ston Market Assoc, 99 Mass. 285. 
 
 R. Co., 116 Iowa, 681, 88 N. W. 1082. 77. Hilliard, Injunctions, § 8. 
 
 187
 
 §105 
 
 Classification and Foum. 
 
 by the Chancery Procedure Act of 1852, and all injunctions are 
 now special only, that is, granted on the. merits only at any time 
 after a bill is on file ; and the prima facie case made by this bill 
 must be supported by affidavit. 78 So it is declared that the com- 
 mon injunction so frequently mentioned in the older reports and 
 books of practice, was the writ of injunction which issued as of 
 course, upon the default or delay of the defendant in answering 
 the bill, and its effect upon a pending suit at law was determined 
 by the progress of that suit at the date of its issuance. If the 
 injunction issued before declaration, it stayed everything ; if after- 
 wards, it stayed execution only, not the trial. 79 The common in- 
 junction as distinguished from the special is directed against a 
 party to some suit that involves an equity which it is desired to 
 protect. 80 In this country in the first half of this century what 
 was called the common injunction was not unknown, its object, for 
 the most part being to stay proceedings at law. If the answer 
 fully denied the merits, the injunction was dissolved of course 
 [without permitting the plaintiff to contradict the answer by affi- 
 davits. 81 
 
 78. Joyce, Injunc. v. 1; Senior v. 
 Pritchard, 16 Beav. 473; Lovell v. 
 Galloway, 17 Beav. 1. In 1 Hoffman's 
 Chancery Practice, 78, it is said there 
 is nothing in our practice similar to 
 this English practice of issuing the 
 writ upon the presumed admission 
 of the defendant by his default, of 
 the plaintiff's right to it. A special 
 application is always made to the 
 chancellor or master and the merits 
 of the application are examined by 
 him. 
 
 79. Chadwell v. Jordan, 2Tenn. 
 Ch. 635, 636, citing Garlick v. Pear- 
 son, 10 Ves. 452; Hendrick v. Dul- 
 lum, 1 Tenn. 427. 
 
 80. Heilig v. Stokes, 63 N. C. 
 612, 615, wherein it is declared that 
 a common injunction is an auxiliary 
 decree made to restrain parties from 
 
 litigation at law where equitable ele- 
 ments are involved in the dispute. 
 
 81. In Poor v. Carleton, 3 Sumn. 
 70, 73, Story, J., said: "This it is 
 to be observed is not the case of the 
 common injunction issued against 
 the defendants for not appearing, or 
 for not answering the bill at the time 
 prescribed by tne practice of the 
 court. In such cases, which usually 
 occur to stay proceedings at law, it 
 is of course to dissolve such an in- 
 junction if the answer denies the 
 whole merits; and the plaintiff will 
 not be permitted to read affidavits in 
 contradiction to the answer upon the 
 the motion to dissolve. This is suf- 
 ficiently apparent from Eden on In- 
 junctions, 88, 108, 118, 326." To the 
 same effect is Orr v. Littlefield, 1 
 Wood. & M. 13, 19. In the Wood 
 
 188
 
 Classification and Foem. §§ 105a, 106 
 
 § 105a. Special injunctions further considered. — A special in- 
 junction is a writ granted upon special grounds arising out of tho 
 circumstances of the case. 82 Such an injunction was founded, not 
 on an equity, existing in the controversy at law between the parties, 
 but on something collateral to it ; as, for example, the necessity of 
 protecting property in dispute, pending the litigation. 83 Special 
 injunctions issue only upon good cause shown by affidavit, and 
 operate according to the terms of the grant. 84 In this connection 
 it is said in an early case in Pennsylvania: " A special injunction 
 is one of the highest and most delicate powers which can be exer- 
 cised by a judicial tribunal. When manifestly indispensable, in 
 the administration of preventive justice, it should undoubtedly be 
 employed without hesitation or timidity. Yet like all other extreme 
 authorities, it should be used only when the case of the party 
 invoking it is clear and too much caution cannot be exercised by 
 the court, in ascertaining that the case presented for its summary 
 action is one which admits neither doubt nor delay." 85 In the 
 courts of the United States as injunctions are granted only on 
 notice to the adverse party all interlocutory injunctions are 
 regarded as special. 88 
 
 § 106. Prerogative writs of injunction. — The writ of injunc- 
 
 worth v. Rogers. 3 Wood. & M. 135, for further time to answer, or for a 
 
 137, the court, speaking of a com commission to take his answer. In 
 
 mon injunction, says, " it is usually all these cases the injunction is of 
 
 dissolved as a matter of course on course. . . . All other injunctions 
 
 the coming in of an answer denying granted upon other occasions, or in- 
 
 merits, or a legal title in the plain- volving other directions are called 
 
 tiffs, and without any inquiry into special injunctions." 
 
 the truth of the allegation." Story, 82. Aldrich v. Kirkland, 6 Rich. 
 
 Eq. Jur., § 892. "Injunctions to re- L. (S. C.) 334, 340. 
 
 strain suits at law are usually 83. Jarman v. Saunders, 64 N. C. 
 
 spoken of as common or special. The 367, 370. 
 
 common injunction so frequently al- 84. Chadwell v. Jordan, 2 Tenn. 
 
 luded to in the books of reports and Ch. 635, 636. 
 
 practice is the writ of injunction is- 85. Biddle v. Ash, 2 Ashm. (Pa.) 
 sued upon and for the default of the 218. Per King, J., quoted in Pas- 
 defendant, in not appearing to or an- senger Ry. v. Easton, 7 Pa. Co. Ct. 
 swering the bill. It is also granted R. 569. 
 where the defendant obtains an order 86. Abb. Law. Diet., in loco. 
 
 189
 
 § 107 Classification and Form. 
 
 tion is sometimes issued as a prerogative writ in matters publici 
 juris in actions brought by the Attorney-General in the name of 
 the State; and in such cases the prerogative writ of injunction 
 is issued by a court of lasl resort. Thus in L892 such a writ was 
 issued in an action on behalf of the State of Wisconsin to restrain 
 the Secretary of State from issuing or publishing notices of an 
 election of members of the Legislature under an invalid appor- 
 tionment act. 87 So a prerogative writ of injunction was issued in 
 the same State to restrain railroad companies from exacting tolls 
 for the carriage of passengers or freight in excess of the legal 
 rates ; 88 and to restrain a common council and city clerk from 
 executing an unconstitutional law for the obstruction of a navigable 
 river. 89 Such writs are also authorized by the constitution of 
 Colorado. 90 The filing of a bill for injunction by the State upon 
 the relation of the Attorney-General, to restrain a public nuisance 
 in the form of an obstruction to a public highway, gives the court 
 jurisdiction; but where the facts are disputed, or where the right 
 has been settled in favor of defendant on an indictment against 
 him, it is an exercise of sound discretion to refuse the injunction. 91 
 
 § 107. Perpetual and preliminary injunctions. — With refer- 
 ence to their duration injunctions are divided into final or per- 
 petual or permanent injunctions; and preliminary or provisional, 
 or interlocutory, or as they are called in New York, temporary 
 injunctions. 92 A perpetual injunction is one which is granted 
 upon the final trial. 93 A final injunction is granted when the rights 
 
 87. State v. Cunningham, 81 Wis. Kerr, Injunctions, 9; Hilliard. Injunc- 
 440, 51 N. W. 724. tions, § 8. There ar e many cases in 
 
 88. Attorney General v. Railroad which the complainant may be en- 
 Companies. 35 Wis. 512. titled to a perpetual injunction on 
 
 89. Attorney General v. Eau the hearing where it would be mani- 
 Claire, 37 Wis. 400. festly improper to grant an injunc- 
 
 90. Const., art. VI., § 3; Wheeler tion in limine. N. Y. Printing Co. v. 
 v. Northern Colorado Irrigation Co., Fitch 1 Paige (N. Y. ), 97 98. 
 
 9 Col. 248, 11 Pac. 103. 93. Riggins v. Thompson, 96 Tex. 
 
 91. Commonwealth v. Croushore, 154, 159, 71 S. W. 14. 
 
 145 Pa. fct. 157. 22 Atl. 807. The words " perpetual injunc- 
 
 92. Beach Mod. Eq. Jur., § 638; tion" in a decree in a patent 
 
 190
 
 Classification and Fokm. § 107 
 
 of the parties are determined. Final injunctions may be made 
 mandatory, commanding acts to be done, the reason of the distinc- 
 tion between a final and a preliminary injunction being that the 
 latter is granted when the rights of the parties are in controversy, 
 while the former is after the rights have been determined. 94 It 
 forms part of the decree made after hearing on the merits, whereby 
 the defendant is finally concluded from the assertion of a right or 
 perpetually restrained from the commission of an act which would 
 be contrary to equity. 95 A perpetual or permanent injunction being 
 in no sense provisional, cannot be granted where the pleadings do 
 not show its necessity and it is not asked for as an element of final 
 relief; therefore it cannot be granted by mere order when no action 
 between the parties is pending, though actions covering the contro- 
 versy have gone to final judgment. 96 The allegation in the com- 
 plaint of an apprehended injury is not sufficient to justify the 
 decree for a final injunction, but the facts must be stated to show 
 that the apprehension is well founded. 97 A perpetual injunction 
 cannot be granted on motion and affidavits under any system of 
 practice, old or new. 98 A perpetual injunction should not be too 
 broad, thus it is error to enjoin county commissioners perpetually 
 from opening a road on the ground that they have not assessed the 
 damages to land owners and provided for the payment thereof; 
 they should be restrained only until they comply with such pre- 
 liminary requirements. 95 The plaintiff may obtain a perpetual 
 
 ease mean only for the life of the In Ladd v. Flynn, 90 Mich. 181, 51 
 
 patent which is to be determined by N. W. 203. it was held to be error, on 
 
 the statute and all the facts of the determination of a motion on affidavits 
 
 case and not merely by the terms of for preliminary injunction against de- 
 
 the grant in the patent. De Florez v, fendants for maintaining a fence 
 
 Raynolds. 8 Fed. 434, 438. which obstructs plaintiffs windows to 
 
 94. Southern Pac. R. Co. v. Oak- grant an order directing that defend- 
 land, 58 Fed. 50, 54. ant abate the fence instantcr, that it 
 
 95. Kerr. Injunctions, 9. be not rebuilt, and that all interfer- 
 
 96. Jackson v. Bunnell. 113 N. Y. ence with plaintiff's enjoyment of the 
 216, 21 N. E. 79. premises perpetually cease; as such 
 
 97. Troy, etc., R. Co. v. Boston, an order is a final determination of 
 etc., R. Co., 86 N. Y. 107. 122. the rights between the parties. 
 
 98. Whitehurst v. Greene, 69 N. C. 99. Champion v. Sessions, 2 Nev. 
 131 ; Hornesby v. Burdell, 9 S. C. 303. 271. 
 
 191
 
 §108 
 
 Classification and Form. 
 
 injunction at the hoaxing though he has not applied for a pre- 
 liminary injunction. 1 If he neglects to bring his case to a hearing 
 in such a state that the court can adjudicate on it without delay, 
 the court may retain his bill and give him an opportunity of estab- 
 lishing his right at law or may at once dismiss his bill. 2 
 
 § 108. Perpetual injunctions further considered. — A per- 
 manent injunction is a judgment or decree, and cannot be granted 
 on affidavits after the action has been concluded by judgment. An 
 injunction may, however, be granted on affidavits after an inter- 
 locutory judgment, which leaves the action still pending. 3 And 
 where a jury find a special verdict, the facts of which warrant a 
 perpetual injunction, it is proper for the court to award it, though 
 the jury have not, in express terms, found that defendant should 
 be perpetually enjoined. 4 On denying a motion to dissolve a tem- 
 porary injunction, the plaintiff is not entitled to a perpetual in- 
 junction, and the parties should be heard on the merits of the bill, 
 if a default has not been taken, before the final decree is rendered. 3 
 
 1. Kerr, Injunctions, 44. Where a 
 company has acquired vested rights 
 by an authorized contract with a city, 
 another company will be perpetually 
 enjoined by decree from interference 
 with those rights under a subsequent 
 contract with the city. Rutland Elec- 
 tric Co. v. Marble City E. L. Co., 65 
 Vt. 377, 26 Atl. 635. 
 
 2. Bacon v. Jones, 4 Myl. & C. 433, 
 437; Norton v. Nichols, 4 Kay & J. 
 475. 
 
 3. Jackson v. Bunnell, 113 N. Y. 
 216, 21 N. E. 79; Travis v. Myers, 67 
 N. Y. 542. In the last case cited, af- 
 ter a decree for an accounting, an in- 
 junction restraining suits at law was 
 granted on motion, but the decree was 
 interlocutory, so that the action was 
 still pending, and not ended by a final 
 judgment. 
 
 4. McManus v. Cook, 59 Ga. 485. 
 
 5. In Ottawa v. Walker, 21 111. 605, 
 the defendants appeared and moved 
 to dissolve the injunction before 
 granted, but the motion was over- 
 ruled, and a decree rendered making 
 the injunction perpetual. The com- 
 plainants took no rule on defendants 
 for an answer, nor in any manner put 
 them in default. The bill was not 
 taken as confessed, and no answer or 
 demurrer was filed. The court said: 
 " The defendant may move to dissolve 
 at any stage of a cause, and its being 
 overruled only operates to continue 
 the injunction to final hearing. The 
 mere motion to dissolve does not au- 
 thorize the court, on overruling it, to 
 make the injunction perpetual. The 
 defendant has still the right to be 
 heard on the merits. The court can 
 only render a decree making the in- 
 junction perpetual on a bill pro con- 
 
 192
 
 Classification and Form. § 109 
 
 On the hearing of an application for preliminary injunction on a 
 bill which is absolutely controverted by the answer, and on ex parte 
 affidavits, it is error to decree a permanent injunction, as prayed 
 for in the bill, on the theory that there are no disputed facts in 
 the case. 6 But where it is apparent on the face of a bill that com- 
 plainants cannot be entitled to any relief, the bill may be dismissed 
 at the hearing of the application for a preliminary injunction. 7 
 And where the reason for granting a perpetual injunction has 
 ceased at the time of the trial a refusal to grant such an injunction 
 and the dismissal of the complaint is justified. 8 And where there 
 is no equity in the bill, or the case made shows a plain remedy at 
 law, an appellate court may dismiss the bill sua sponte. 9 It is also 
 error for the lower court to decree a perpetual injunction, on the 
 same facts upon which the court of last resort in the State has 
 already decided against a preliminary injunction in the same 
 action. 10 Where the defendant's demurrer to a bill has been over- 
 ruled, and a preliminary injunction has been granted, the defend- 
 ant is often satisfied that a further contest will be hopeless, and 
 submits to a final decree making the injunction perpetual. 11 
 
 § 109. Interlocutory, preliminary, or temporary injunctions. — 
 Temporary or interlocutory injunctions are such as are to continue 
 until the final hearing, or generally until further order. 12 An in- 
 junction of this character is said to be an act of extraordinary 
 power on the part of the court, in behalf of either party to an 
 action before trial, is always cautiously granted, and it must fairly 
 appear upon all the papers presented before such injunction is 
 granted that the plaintiff will suffer irreparable injury if it be not 
 
 fesso, on overruling a demurrer to the 9. Freeman v. Timanus, 12 Fla. 
 
 bill, or upon a hearing on the bill 393. 
 
 answer, exhibits and proofs." 10. Thome v. Sweeney, 13 Nev. 
 
 6. Gross v. Wieand, 151 Pa. St. 639, 415. 
 
 25 Atl. 50. 11. Heaton Button Fastener Co. v. 
 
 7. Sauls v. Freeman, 24 Fla. 209, Dick, 52 Fed. 067; Kerr, Injunctions, 
 4 So. 525. See, also, Alsup v. Allen, 45. 
 
 43 Tex. 598. 12. Gardner v. Gardner, 87 N. Y. 
 
 8. Clancy v. Geb, 126 Wis. 286, 104 14; People v. Randall, 73 N. Y. 416. 
 N. W. 746. 
 
 193 
 
 13
 
 §109 
 
 Classification and Form. 
 
 issued or that it is necessary to preserve the status of the parties 
 or some sufficient cause showing the need of hasty action exists. 12 
 It should not be awarded except in clear cases of right and where no 
 doubt exists as to the claim of the plaintiff to the remedy ho in- 
 vokes. 14 The rule is probably more correctly stated by saying that 
 a temporary injunction will not be granted where it is not reason- 
 ably probable that the suit will be determined in plaintiff's favor. ,R 
 A temporary injunction is not a matter of strict right. Its issue 
 rests with the sound discretion of the judge or court, and before 
 one is issued there should be a full showing of all the facts that 
 the judge may act with a thorough understanding of the entire 
 case. 16 And an injunction pendente lite should not be granted 
 where there is nothing to indicate that the acts complained of are 
 present continuing acts or that there are any threats or indications 
 of their continuance in the future and where it appears that the 
 last act on the part of the defendants occurred some time prior to 
 the commencement of the suit. 17 Such an injunction is provisional 
 in its nature and the rights of the parties in respect to a judgment 
 
 13. Johnson v. Kingston Board of 
 Education, 38 Misc. R. (N. Y.) 593, 
 78 N. Y. Supp. 53. Per Betts, J. 
 
 See, also, Capital City Gaslight Co. 
 v. Des Moines, 72 Fed. 829 ; Commerce 
 Vault v. Hurd, 73 111. App. 107; Hor- 
 ton v. Forty-Second St. M. & St. N. 
 A. R. Co., 14 App. Div. (N. Y.) 629, 
 43 N. Y. Supp. 1156. 
 
 A pi eliminary injunction is 
 the strong arm of the court. — 
 Waring v. Cram, 1 Pars. Eq. Cas. 
 (Pa.) 516. 
 
 Must be pressing necessity. — 
 As a preliminary injunction is in its 
 operation somewhat like judgment 
 and execution before trial, it is only 
 to be resorted to from a pressing ne- 
 cessity to avoid injurious conse- 
 quences which cannot be repaired un- 
 der any standard of compensation. It 
 is, therefore, a preventive remedy 
 only. Mammoth Vein Consol. Coal 
 
 Co.'s Appeal, 54 Pa. St. 183, 188. 
 Per Thompson, J. See, also, City of 
 Laporte v. Scott (Ind. 1906), 76 N. 
 E. 878. 
 
 14. Waring v. Cram, 1 Pars. Eq. 
 Cas. (Pa.) 516. Per King, J., cited 
 with approval in Passenger Railway 
 v. Easton, 7 Pa. Co. Ct. R. 569. See, 
 also, Knoxville v. Africa, 77 Fed. 501, 
 23 C. C. A. 252, 47 U. S. App. 74. 
 But compare Wilson v. Consolidated 
 Store Service Co., 88 Fed. 286, 31 C. 
 C. A. 533, 50 U. S. App. 400, rev'g 
 83 Fed. 201. 
 
 15. Wilkinson v. Dobbie, 12 
 Blatchf. (U. S.) 298. 
 
 16. State v. Parsons (Kan. 1908), 
 95 Pac. 391, 392, citing Olmstead v. 
 Koester, 14 Kan. 463. 
 
 17. Sleicher v. Grogan, 43 App. 
 Div. (N. Y.) 213, 59 N. Y. Supp. 
 1065. 
 
 194
 
 Classification and Form. 
 
 § 100a 
 
 in a trial upon the merits is not affected by the action of the court 
 or judge in granting or refusing it. 18 The discretion of the court 
 in this respect is not conclusive, either upon the court or the 
 parties in the disposition of the cause by final decree. 19 In grant- 
 ing or refusing temporary relief by preliminary injunction, courts 
 of equity should in no manner anticipate the ultimate determina- 
 tion of the question of right involved. 20 
 
 § 109a. Same subject; object of. — A preliminary injunction is 
 only a provisional remedy, the sole object of which is to preserve 
 the subject in controversy in it- then condition and without deter- 
 mining any question of right, merely to prevent the further per- 
 petration of wrong, or the doing of any act whereby the right in 
 controversy may be materially injured or endangered. 22 This 
 doctrine is sustained by numerous authorities. 23 The status quo 
 
 18. Peck v. Goodberlett. 100 N. Y. 
 180, 189, 16 N. E. 350, wherein the 
 court: "The injunction was made 
 before the defendant answered, and 
 by its terms was to continue only dur- 
 ing the pendency of the action. Its 
 interposition was within the discre- 
 tion of the judge or court granting it, 
 but in no way affected the case in a 
 trial upon the merits." 
 
 See, also, Payton v. Payton, 86 Ga. 
 773, 13 S. E. 127; Paul v. Munger, 47 
 N. Y. 469. 473; Hazen v. Lyndonville 
 Nat. Bank, 70 Yt. 543, 41 Atl. 1046, 
 67 Am. St. Piep. 680. 
 
 See § 112 herein. 
 
 19. Andrae v. Redfield, 12 Blatchf. 
 (U. S.) 407, 425. 
 
 20. Helm v. Gilroy, 20 Oreg. 517, 
 520, 26 Pac. 851. 
 
 Order should not dispose of 
 case on merits. — An order for a 
 temporary injunction should not pur- 
 port to dispose of the issues upon the 
 merits. Alston v. Limehouse, 60 S. C. 
 559, 568. — S. E. — , wherein it is 
 
 said : " No fact decided upon such 
 motion is concluded thereby, and 
 when the other issues are brought to 
 trial, they are to be determined with 
 out reference to said orders." 
 
 22. Helm v. Gilroy. 20 Oreg. 517, 
 520, 26 Pac. 851. See, also, Darling- 
 ton Oil Co. v. Pee Dee Oil & Ice Co., 
 62 S. C. 196, 220, 40 S. E. 169, citing 
 lo Encyc. PL & Pro. 878. 
 
 23. United State*. — Southern Pac. 
 R. Co. v. Oakland, 58 Fed. 50, 53; 
 Mexican Ore Co. v. Mexican Guadu- 
 lupe Co., 47 Fed. 351. See Northern 
 Pac. A. Co. v. Spokane, 52 Fed. 427. 
 
 Alabama. — A preliminary injunc 
 tion, commonly spoken of as a tempo- 
 rary injunction, is granted pending a 
 hearing on the merits, and only upon 
 the complainant's entering into bond 
 with surety conditioned and payable 
 ;i a required by law. . . . The writ 
 is obtained upon an ex parte hearing 
 and the bond is required as a protec- 
 tion against the abuse of this extra- 
 
 195
 
 § 109b 
 
 Classification and Form. 
 
 which it is sought to protect is that existing at the beginning of the 
 controversy and an injunction should not issue to protect an advan- 
 tage subsequently gained. 
 
 2i 
 
 § 109b. Preliminary injunctions further considered. — A pre- 
 liminary injunction is different from a, permanent injunction in 
 
 ordinary process, and to prevent op- 
 pression by its use. Jesse French 
 Piano & C. Co., 134 Ala. 302, 307, 32 
 So. 678, 92 Am. St. Rep. 31. 
 
 Illinois. — World's Columbian Expo- 
 sition Co. v. Brennan, 51 111. App. 
 128. 
 
 Maryland. — In re Murdock, 2 
 Bland. 401, 20 Am. Dec. 381. 
 
 Michigan. — See Toledo A. A. & N. 
 M. R. Co. v. Detroit L. & M. R. Co., 
 61 Mich. 9, 27 N. W. 715. 
 
 Neiv York. — Van Veghten v. How- 
 land, 12 Abb. Pr. (N. S.) 461. 
 
 Pennsylvania. — The sole object of a 
 preliminary injunction is to preserve 
 the subject of the controversy in the 
 condition in which it is until the 
 merits can be heard. It cannot be 
 used to take property out of the pos- 
 session of one party and put it in 
 the possession of another. Fredericks 
 v. Huber, 180 Pa. St. 572, 37 Atl. 90, 
 citing to same effect Farmers' Rail- 
 road Co. v. Reno, Oil Creek & P. Ry. 
 Co., 53 Pa. St. 224. 
 
 A preliminary injunction is a re- 
 strictive or prohibitory process, de- 
 signed to compel the party against 
 whom it is granted to maintain his 
 status merely until the matters in 
 dispute shall by due process of the 
 courts be determined ; the sole founda- 
 tion for such an order being, in addi- 
 tion to cases of the invasion of un- 
 questioned right, the prevention of ir- 
 reparable mischief or injury. Mam- 
 
 moth Vein Consol. Coal Co.'s Appeal, 
 54 Pa. St. 183, 188. 
 
 South Carolina. — The object of a 
 preliminary injunction is to preserve 
 the subject of controversy in the con- 
 dition in which it is when the order 
 is made until an opportunity is af- 
 forded for a full and deliberate in- 
 vestigation. It cannot be used to 
 take property out of the possession 
 of one person and put it into that of 
 another. Pelzer, Rodgera & Co. v. 
 Hughes, 27 S. C. 408, 415. Per Mc- 
 Gowan, J. 
 
 England. — Preston v. Luck, L. R. 
 27 Ch. D. 497. Cotton, L. J.: "This 
 is an interlocutory injunction, the ob- 
 ject of which is to keep things in 
 statu quo, so that if at the hearing 
 the plaintiffs obtain a judgment in 
 their favor, the defendants will have 
 been prevented meantime from deal- 
 ing with the property in such a way 
 as to make that judgment ineffec- 
 tual." See, also, Blakemore v. Gla- 
 morganshire Canal, 1 Myl. & K. 154. 
 
 An injunction, as one of the 
 provisional remedies of the New 
 York Code, has respect to the pre- 
 servation of the property involved, 
 pending the action, and does not 
 necessarily affect the merits. In this 
 respect it is deemed collateral and in- 
 cidental to the action, rather than an 
 interlocutory proceeding in it. Paul 
 v. Munger, 47 N. Y. 469, 473. 
 
 24. Fredericks v. Huber, 180 Pa. 
 St. 572, 37 Atl. 90. 
 
 196
 
 Classification and Form. § 110 
 
 that it is preliminary to a hearing on the merits and by no means 
 dependent on such hearing. A permanent injunction may be had 
 on final hearing on the merits without the requirement of a bond 
 while a preliminary injunction can not. 2D A preliminary injunc- 
 tion maintaining the status quo, may properly issue whenever the 
 questions of law or fact to be ultimately determined in a suit are 
 grave and difficult, and injury to the moving party will be imme- 
 diate, certain and great if it is denied, while the loss or inconven- 
 ience to the opposing party will be comparatively small and insig- 
 nificant if it is granted. 26 A temporary injunction assumes a pend- 
 ing action, in which allegations are to be settled by judgment, and 
 that judgment puts an end to the temporary injunction, whether 
 it grants or denies a permanent injunction. 27 And the temporary 
 injunction is abrogated by the final judgment, even though such 
 judgment be appealed from, so that any restraints, in addition to 
 those of the temporary injunction, must be contained in the final 
 judgment, or cannot be granted at all." s In New York a court Las 
 no power to revive or continue a temporary injunction in plaintiff's 
 favor, pending an appeal by him from a judgment adverse to him. 29 
 
 § 110. Same subject. — As the object of a preliminary or tem- 
 porary injunction is merely to preserve the property in dispute 
 in statu quo and to protect it from injury until the rights of the 
 parties can be finally adjudicated, the court will not, on the hear- 
 ing of an application to grant or to vacate a preliminary injunc- 
 tion, decide questions of title to the property in dispute, but will 
 reserve such questions until the final hearing upon the merits. 30 
 
 25. Jesse French Piano & O. Co. 28. Gardner v. Gardner, 87 N. Y. 
 v. Porter, 134 Ala. 302, 307, 32 So. 14. 
 
 678, 92 Am. St. Rep. 31. 29. Spears v. Mathews, 6C N. Y. 
 
 26. Allison v. Corson, 88 Fed. 581, 127. 
 
 584, 32 C. C. A. 12. Per Sanborn, J. 30. Northern Pac. R. Co. v. Spo- 
 
 27. Jackson v. Bunnell, 113 N. Y. kane, 52 Fed. 428. In many cases, 
 216, 220, 21 N. E. 79. the court will interfere and preserve 
 
 A temporary injunction is property in statu </uo during the pen- 
 merged in the perpetual. Gage v. dency of a suit in which the rights 
 Parker, 178 111. 455, 53 N. E. 317. to it are to be decided, and that with- 
 
 197
 
 § 110 Classification and Form. 
 
 And if a preliminary order restrains one of the parties from inter- 
 ference with the property in dispute and leaves the other free so 
 to interfere, the court will modify such order so as to do equal 
 justice to the parties, and keep the property in statu quo until the 
 determination of the controversy as to title and their respective 
 rights. 31 But where the defendant is engaged in removing from 
 the complainant's estate that which constitutes its chief value, for 
 instance its lumber, the case is one peculiarly within the province 
 of a court of equity through its preventive writ to interpose and 
 stop the mischief complained of and preserve the property from 
 destruction. 32 Before a court of equity has power to restrain a 
 libel or slander the question of slander or libel should first be 
 determined by a jury in an action at law, and after a verdict for 
 the plaintiff he can have an injunction to restrain the further pub- 
 lication of that which the jury has found to be actionable. 33 If, 
 after granting a temporary injunction, it appears from defendant's 
 answer that the title to property is in controversy the court may 
 order the plaintiff to try that question in a court of law continuing 
 meanwhile the injunction. 34 Where a temporary injunction is 
 granted on a prima facie case made out by plaintiff it is proper 
 to continue the injunction and preserve the status quo where the 
 
 oTlt expressing, and often without the court may in its discretion issue 
 
 having the means of forming an a temporary injunction and continue 
 
 opinion as to such rights. Huffman v. it in force for such a time as may be 
 
 Hummer, 17 N. J. Eq. 263; New Jer- necessary to enable the orator to es- 
 
 sey Zinc Co. v. Trotter, 38 N. J. tablish his title in a court of law and 
 
 Eq. 7. may make the injunction perpetual 
 
 As to divesting party of pos- when the orator has thus established 
 
 session, see § 112 herein. his title; or the court may proceed 
 
 31. Northern Pac. R. Co. v. Spo- and determine which party has the 
 kane, 52 Fed. 428. better title; or it may dismiss the 
 
 32. Griffith v. Hilliard, 64 Vt. 643, bill and leave the orator to his legal 
 25 Atl. 427. remedy. Bacon v. Jones, 4 Myl. & C. 
 
 33. Flint v. Hutchinson Smoke 433; Duke of Beaufort v. Morris, 6 
 Burner Co., 110 Mo. 492, 19 S. W. Hare, 340; Campbell v. Scott, 11 
 804. Sim. 31; Ingraham v. Dunnell, 5 
 
 34. Griffith v. Hilliard, 64 Vt. 643. Met. 118; Rooney v. Soule, 45 Vt. 
 25 Atl. 427, per Start, J.: "When 303; Wing v. Hall, 44 Vt. 118; Lyon 
 it appears that the title is in dispute v. McLaughlin, 32 Vt. 423; Hastings 
 
 198
 
 Classification and Form. §§ 110a, 111 
 
 injury to plaintiff from defendant's acts would be much greater 
 than the defendant could suffer from being enjoined. 35 
 
 § 110a. Injunction by order in New York. — An injunction by 
 order in New York is held to be a provisional remedy and tem- 
 porary in its character. It assumes a pending litigation in which 
 all questions are to be settled by a judgment, and operates only 
 until that judgment is rendered. If by that a permanent injunc- 
 tion is granted, the temporary one is ended which is also the case 
 if the permanent injunction is denied. 36 
 
 § 111. Interim restraining orders; generally. — The function of 
 a restraining order is to protect the plaintiff without unnecessarily 
 oppressing or annoying the defendant, and will therefore be framed 
 according to the circumstances of the particular case. 37 A restrain- 
 ing order is not intended to have the force and effect which attaches 
 to an injunction when regularly allowed. Such an order restrains 
 proceedings until an opportunity can be given for the parties to 
 be heard and upon the hearing having been had and a decision 
 rendered upon the application the restraining order ceases by its 
 own limitation. 35 A restraining order is limited in its operation 
 and extends only to such reasonable time as may be necessary to 
 have a hearing on an order to show cause why an injunction should 
 not issue. 39 And in this connection it is said that it is the plain 
 duty of a court to set the order to show cause at a very early day, 
 
 v. Perry, 20 Vt. 278; Barnes v. Dow, nee & S. P. R. Co. (Fla. 1905), 39 
 
 59 Vt. 530, 10 Atl. 258; Barry v. Har- So. 538. 
 
 ris, 49 Vt. 392." 39. Wetzstein v. Boston & Montana 
 
 35. Cornwall v. Saches, 69 Hun (N. C. C. & S. M. Co., 25 Mont. 135, 63 
 Y.),283. Pac. 1043. Per Milburn, citing 10 
 
 36. Jackson v. Bunnell, 113 N. Y. Encyc. PI. & Prac. 878; College Cor 
 216, 220, 21 N. E. 79. Per Finch, J. ner Road Co. v. Moss, 77 Ind. 139; 
 
 37. Kirby MTg Co. v. White, I Hicks v. Michael, 15 Cal. 107; San 
 Fed. 604. Diego Water Co. v. Pacific Coast S. 
 
 38. State v. Wakely, 28 Neb. 431. S. Co., 101 Cal. 216, 35 Pac. 651; 
 quoted in State v. Greene, 48 Neb. Fennick Hall Co. v. Town of Old Say 
 327, 331, 67 N. W. 162. See Suwan hook. 66 Fed. 389; Strickland v. 
 
 Griffin, 70 Ga. 541. 
 
 199
 
 § 111 Classification and Form. 
 
 and, upon the application of the defendant to shorten the time, to 
 the end that, if the facts on the hearing warrant it, the restraining 
 order may be discharged. 40 The fact that an unauthorized restrain- 
 ing order is made by the judge in the notice of hearing of an appli- 
 cation for an injunction, does not make it error to issue a tem- 
 porary injunction on the hearing. 41 Whether the character and 
 function of a writ rcstaining the parties to an action from doing 
 certain things, issued at its commencement, are those of a tem- 
 porary order of injunction, or a temporary restraining order, must 
 be determined by the form and substance of the order so issued. 42 
 And a restraining order granted on the ground of emergency and 
 until a day certain when cause must be shown why a temporary 
 injunction should not issue is not an " injunction or restraining 
 order " within the meaning of a statute providing that an " injunc- 
 tion or restraining order " may, on appeal by the complainant, be 
 kept in force by the giving of a bond by the latter, where it is clear 
 that the words "injunction" and "restraining order" as used 
 in the statute were substantially synonymous. 43 A restraining 
 order or interim injunction becomes, on the denial of a motion to 
 vacate it, a temporary injunction. 44 And in the Ann Arbor case 
 
 40. Wetzstein v. Boston & Mon- injunction, as known to the common 
 tana C. C. & S. M. Co., 25 Mont. 135, law. if it saw fit to do so, and that 
 63 Pac. 1043. Per Milburn, J. In if it did not see fit to go into all 
 this case it was held an abuse of dis- the formalities required by the use of 
 cretion to stay the hearing on the such a writ, it could accomplish the 
 order for a period of six weeks from same purpose by issuing a simple 
 the time it was granted. order restraining the acts complained 
 
 41. Lemmon v. Town of Guthrie of." Per Hoyt, J. 
 
 Center, 113 Iowa, 36, 84 N. W. 986, 44. Smith v. Cuyler, 78 Ga. 654, 
 
 86 Am. St. Rep. 381. 3 S. E. 406. When an order restrains 
 
 42. State v. Baker, 62 Neb. 840, 88 a defendant from doing certain acts 
 N. W. 124. until the further order of the court, 
 
 43. State v. Lichtenberg. 4 Wash. and also requires him to show cause 
 407, 409, 30 Pac. 716, wherein it was at special term why such injunction 
 said that it seemed to the court "that should not be continued until the 
 the Legislature, in speaking of in- final determination of the acion, it 
 junctions and restraining orders, is not necessary to have an additional 
 meant to use terms which would order to continue the injunction, for 
 make it proper for the court to put unless dissolved on defendant's mo- 
 its order in the shape of a formal tion therefor with notice to plaintiff 
 
 200
 
 Classification and Form. § Ilia 
 
 to restrain violations of the Interstate Commerce Law there was a 
 temporary restraining order which at length became a temporary 
 injunction. 45 
 
 § Ilia. Interim restraining orders; in particular jurisdictions. 
 
 — In North Carolina a restraining order may be granted ex parte 
 in urgent cases and cannot last more than twenty days. 46 In 
 Georgia it has been decided that where it is manifest to the judge, 
 from sworn allegations of the bill, or the affidavit of a competent 
 person, that the injury apprehended will be done if an immediate 
 remedy is not afforded, he may grant, instarder, an order restrain- 
 ing the party complained of until the hearing or the further order 
 of the court, which restraining order shall have the force of an 
 injunction, until rescinded or modified by the court. 47 Under sec- 
 tion 718 of the Revised Statutes of the United States if a bill is filed 
 for an injunction and a subpoena issued notifying a defendant to 
 appear on a rule day, and in the meantime there is danger that 
 irreparable injury may be committed, the court in the exercise of a 
 sound discretion may grant a temporary restraining order without 
 notice until the decision upon the motion for the preliminary 
 injunction. 48 In English practice instead of issuing an injunction 
 the court may issue an interim order restraining the defendant 
 until after a particular day named, with liberty to plaintiff to 
 serve notice of motion for an injunction for the day before such 
 day. 49 In New York when an application for an injunction is 
 made upon notice, or an order to show cause, the defendant may 
 
 it will continue until such final de- 46 Fed. 546. Under the Act of Con- 
 termination of the action. Kelly v. gress of 1793 sucn a restraining order 
 Jeroloman, 7 Robt. 158. could not be granted without notice, 
 
 45. Toledo, etc., R. Co. v. Penn- but that act was changed by section 
 eylvania Co., 54 Fed. 730. See, also, 7 of the Act of June 1, 1872, now 
 Byam v. Cashman, 78 Cal. 525, 21 § 712, U. S. R. S. See, also, Chi- 
 Pac. 113. cago, etc., R. Co. v. Burlington R. 
 
 46. N. C. Code, § 346; Hamilton Co., 34 Fed. 481; Central Trust Co. 
 v. Icard, 112 N. C. 589, 17 S. E. 519. v. Wabash R. Co., 25 Fed. 1. 
 
 47. Strickland v. Griffin, 70 Ga. 49. Kerr, Injunctions, 28 Gold- 
 543. smid v. Croft, 4 Week. Rep. 450. 
 
 48. Payne v. Kansas, etc., R. Co., 
 
 201
 
 § 112 Classification and Form. 
 
 be enjoined until the hearing and decision of the application; 50 
 and in such a case security may be required of plaintiff as on the 
 granting of a temporary injunction, 01 and if such security is 
 deemed to be sufficient on the granting of the temporary injunc- 
 tion no new undertaking will then be required. 52 In Nebraska a 
 temporary restraining order may be allowed to protect the rights 
 of the plaintiff prior to the granting of the temporary injunction, 
 but it is so transitory as not to have within itself the elements neces- 
 sary for its continuance, and ceases upon a decision either granting 
 or refusing the temporary injunction. 53 It is expressly provided 
 by the Kansas statute that an injunction shall not be granted 
 against a party who has answered, unless upon notice, but such 
 party may be restrained until the decision of the application 
 therefor. 54 
 
 § 112. Invalid preliminary injunctions. — The legitimate pur- 
 pose and function of a temporary or preliminary injunction is to 
 preserve matters in statu quo until a hearing; if it undertakes 
 or if its effect is to dispose of the merits of a controversy without 
 a hearing, or if it divests a party of his possession or rights in 
 property without a trial, it is void. 55 Thus where a railway com- 
 
 50. Code Civ. Pro., § 609; Babcock and a decision rendered upon the ap- 
 v. Clark, 23 Hun (N. Y.), 391; Daly plication, the whole force of the re- 
 v. Amberg, 126 N. Y. 490, 27 N. E. straining order ceases by its own lim- 
 1038. itation." 
 
 51. Methodist Churches v. Barker 54. Gen. Stats. 1889. § 4336; G. 
 18 N. Y. 463; Byam v. Cashman, 78 S. 1868. ch. 80, § 241. 
 
 Cal. 525, 21 Pac. 113. 55. United States.— Southern Pae. 
 
 52. Preiss v. Cohen, 112 N. C. R. Co. v. Oakland, 58 Fed. 50. 
 
 278, 17 S. E. 520. Louisiana.— New Orleans & N. E. 
 
 53. State v. Wakeley, 28 Neb. 431, R. Co. v. Mississippi, T. & L. R. Co., 
 4* N. W. 488, per Reese, C. J.: "It 36 La. Ann. 561. 
 
 is very clear that the Legislature Michigan. — Arnold v. Bright, 41 
 
 never intended to give the force and Mich. 207, 2 N. W. 16. 
 
 effect to a restraining order which Mississippi. — Martin v. Broadus, 1 
 
 attaches to an injunction when reg- Freem. Ch. 35. 
 
 ularly allowed. It simply suspends Nebraska. — Calvert v. State, 34 
 
 proceedings until an opportunity can Neb. 216, 52 N. W. 687. 
 
 be given for hearing the parties; and New York. — Deklyn v. Davis, 
 
 upon that hearing having been had, Hopk. Ch. 135. 
 
 202
 
 Classification and Form. § 113 
 
 pany had been in possession of a yard for making up its trains for 
 more than twenty years, a temporary injunction which restrained 
 it from preventing the occupation of the yard by a street railway 
 company was held to be not merely illegal but absolutely void. 56 
 And an ex parte interlocutory injunction which deprives railroad 
 directors of control may be more than irregular and wholly void as 
 beyond the power of the court. 57 
 
 § 113. Injunction against plaintiff. — In New York a defendant 
 who interposes a counterclaim and demands an affirmative judg- 
 ment against plaintiff has the same right to an injunction against 
 him as he would have in an action for the same cause of action, and 
 in which he demanded the same judgment. 58 But to entitle the de- 
 fendant to an injunction his answer must really amount to a coun- 
 terclaim in a matter susceptible of counterclaim, within the meaning 
 of the Code. 59 In England, a defendant may before judgment apply 
 for an injunction against a plaintiff who has already served notice 
 of motion for the same purpose; in such case one order will be 
 made on the tried motions, but the conduct of the proceedings will 
 generally be given to plaintiff as the party first instituting the pro- 
 
 Pennsylvania. — Farmers' R. Co. v. W. 16, See, also, People v. Simon- 
 Reno O. C. & P. R. Co., 53 Pa. St. son. 10 Mich. 335; Sailing v. John- 
 224. son, 25 Mich. 489; McCombs v. Mer 
 
 Rhode Island. — Jenckes v. Cooke, 8 ryhew, 40 Mich. 725; Tawas, etc., R. 
 
 R. I. 336. Co. v. Iosco Judge, 44 Mich. 479, 7 
 
 South Carolina. — Columbia Water N. W. 65. 
 
 Power Co. v. Columbia, 4 S. C. 388. 56. Calvert v. State, 34 Neb. 616, 
 
 South Dakota.— Catholicon Hot 52 N. W. 687, per Maxwell, C. J.: 
 
 Springs Co. v. Ferguson. 7 S. D. 503. " The question of the street railway's 
 
 fi4 N. W. 539. right to appropriate the property in 
 
 Vermont. — Cheever v. Rutland & question should have been determined 
 
 B. R. Co.. 39 Vt. 653. by a trial before the order in ques- 
 
 " The court of chancery has tion was made, and as it was not the 
 
 no more power than any other judge acted without authority and 
 
 to condemn a man unheard and to the order is void." 
 
 dispossess him of property prima 57. Port Huron, etc., R. Co. v. 
 
 facie his and to hand over its en- Judge. 31 Mich. 456. 
 
 joyment to another on an ex parte 58. Code Civ. Pro., § 720. 
 
 claim to it." Per Cooley. J., in Ar- 59. Glen MTg Co. v. Hall, 6 
 
 nold v. Bright. 41 Mich. 207. 2 N. Lans. 158. 
 
 203
 
 § 114 Classification and Fokm. 
 
 ceedings. 60 The defendant waives the objection that plaintiff has 
 an adequate remedy at law by filing a cross-bill, and where, instead 
 of pleading want of jurisdiction, he merely protests against it and 
 asks affirmative equitable relief. 61 
 
 § 114. Form and contents of injunction order. — Under the 
 Kew York statute the injunction order must briefly recite the 
 grounds for the injunction; 62 an omission so to state the grounds 
 is not a jurisdictional defect, and though it is an irregularity for 
 which the injunction may be set aside, if it does not prejudice 
 any substantial right of defendant it may be disregarded or sup- 
 plied under section 723 of the Code. 63 The order does not suf- 
 ficiently recite the grounds for the injunction, by merely reciting 
 the language of the Code to the effect that it appears by the com- 
 plaint that the plaintiffs demand, and are entitled to judgment 
 against the defendant restraining the commission or continuance 
 of an act which during the pendency of the action would produce 
 injury to plaintiff. 64 The direction as to the giving of the under- 
 taking required by § 620 of the New York Code need not be 
 embodied in the order. 65 The injunction should not go beyond the 
 allegations of the complaint or the prayer for relief so as to give 
 plaintiff greater relief than he is entitled to ; 66 but such an order 
 though irregular is not necessarily void and cannot be violated 
 
 60. Sargant v. Read, L. R. 1 Ch. right or remedy of plaintiff. If the 
 D - 60 °- papers on which the injunction is 
 
 61. Sale v. McLean. 29 Ark. 612; granted contain facts showing that 
 Snowden v. Tyler, 21 Neb. 199. such would be the result, it is suf- 
 
 62. Code Civ. Pro., § 610. ficient. and it is not necessary to re- 
 
 63. Atlantic Tel. Co. v. Baltimore, cite the words of the statute ipsis- 
 etc R. Co., 46 N. Y. Super. Ct. 377, simis verbis. Prince M'f'g Co. v. 
 409; Phoenix Foundry v. North Riv. Prince's Metallic Paint Co., 4 N. Y. 
 Construction Co. 6 N. Y. Civ. Pro. Supp. 348, 51 Hun. 443; Hotchkiss v. 
 106 » 112. Hotchkiss, 50 Hun, 604, 2 N. Y. S. 
 
 64. Hotchkiss v. Hotchkiss, 19 N. Y. 825, 16 Civil Proc. Rep. 129. 
 
 St. 767. 50 Hun, 604, 2N.Y. Supp. 825, 65. Manley v. Leggett, 17 N. Y. 
 
 It is not necessary t > insert in an in- Supp. 68. 
 
 junction a declaration that the con- 66. Loomis v. Thirty-Fourth Street 
 
 duct of defendant is such as to de- R. Co., 38 Hun. 517; Burdett v. Hay, 
 
 feat, impair, impede, or prejudice a 33 L. J. Ch. (N. S.) 41. 
 
 204
 
 Classification and Form. 
 
 §114 
 
 with impunity. 67 Where the case made by the bill was confined to 
 the erection and operation of coke ovens on a specified street, the 
 injunction decree was held to be improvident because it included 
 ovens not upon that street. 68 And where defendant was enjoined 
 from using an oblong form of package adopted by plaintiff the 
 injunction was held too broad since it prevented defendant's using 
 such a form though destitute of the distinguishing marks and 
 devices of plaintiff's package, and the injunction was therefore 
 modified by the New York Court of Appeals so as to conform to 
 the pleadings and proofs. 69 A mandatory injunction must not go 
 
 67. Mayor, etc., v. Staten Island 
 Ferry Co., 64 "hi. Y. 622; People v. 
 Sturtevant, 9 N. Y. 263; Richards v. 
 West, 2 Green Ch. 456. See Leitham 
 v. Cusick, 1 Utah, 242. 
 
 68. Rainey v. Herbert, 55 Fed. 
 443. 
 
 69. Fischer v. Blank, 138 N. Y. 
 248, 33 N. E. 1U0, where Maynard, 
 J., said : " We think the interlocu- 
 tory judgment recovered in this ac- 
 tion is too comprehensive in its scope. 
 Some of its provisions are not au- 
 thorized by the pleadings, proofs and 
 findings. a9 they must be construed 
 and applied under the rules of law 
 which prevail in this class of cases. 
 The injunction granted restrains de- 
 fendant from making use of the form 
 of package adopted by plaintiffs, and 
 from using the name 'Black Package 
 Tea ' in the sale of tea not selected 
 and put upon the market by plain- 
 tiffs. The plaintiffs have no propri- 
 etary right to this form of 
 package and are not entitled to its 
 exclusive use. . . . The use of 
 such a name in connection with the 
 particular form, style, color and em- 
 bellishment of package set out in the 
 complaint and findings might prop- 
 erly be restrained. Probably it was 
 only to this extent that the injunc- 
 
 tion was intended to go, but, as it 
 stands, it enjoins the defendant from 
 using the name generally, and a 
 prohibition so unrestricted is not 
 permissible. The injunction is also 
 too broad in the restraint which it 
 imposes upon tne defendant in the 
 use of the circular disks upon which 
 is printed the quality of the tea, the 
 quantity and price, and the words, in 
 Russian, 'Genuine Russian Tea,' 
 which are similar in form, color, and 
 general appearance to the disks used 
 upon plaintiff's packages, except that 
 the latter have upon them the Rus- 
 ian words for ' Russian Caravan Tea.' 
 The defendant is prohibited from the 
 use of these disks upon any kind of 
 a package, when the injunction 
 should have been limited to the 
 packages described in the complaint 
 and findings. The same objection ex- 
 ists but with greater force, to the re- 
 tention of that part of the judgment 
 which absolutely forbids the use of 
 the defendant's diamond-shaped busi- 
 ness label, which has upon it only 
 his name, occupation, and place of 
 business. There can be no grounds 
 upon which its use by the defendant 
 may be inhibited, except upon the 
 packages described in the complaint. 
 Elsewhere in his business these labels 
 
 205
 
 §115 
 
 Classification and Form. 
 
 beyond the relief demanded by the applicant, and must bo clear 
 and definite in its requirements, or it will be void for uncertainty . w 
 
 § 115. Injunction order to be specific. — The injunction order 
 should plainly indicate to the defendant the specific acts which 
 he is restrained from doing or commanded to do, without calling 
 upon him for inference, or conclusions to be reached only by a 
 process of reasoning; in other words, it must be explicit in its 
 terms, clearly pointing out and describing each distinct thing the 
 defendant is required to do or not to do. 71 It has been 
 
 may be freely and lawfully used." An 
 injunction to restrain infringement 
 of a copyright should be limited to 
 that part of the defendant's publica- 
 tion which infringes. Farmer v. 
 Elstner, 33 Fed. 494. In Rose v. 
 Rose, 11 Paige (N. Y.), 166. an in- 
 junction on a bill for divorce was 
 held too broad which restrained de- 
 fendant from using his property for 
 the necessary support of himself and 
 children or from using his tools of 
 trade and from carrying on his or- 
 dinary business and was therefore 
 dissolved. An injunction should not 
 be broader than the grievance com- 
 plained of, and if so will be modi- 
 fied on appeal. Marble Company v. 
 Ripley, 10 Wall. (U. S.) 339; Stroub 
 v. Manhattan R. Co., 59 N. Y. Super. 
 Ct. 505, 511. 
 
 70. McKenzie v. Ballard, 14 Col. 
 426, 24 Pac. 1, Elliott, J.: "Ap- 
 pellant complains with much reason 
 of the order of the court requiring 
 defendant 'to build sluices for ir- 
 rigating water wherever necessary.' 
 There is nothing in the complaint re- 
 lating to sluices. The answer con- 
 tains nothing in reference to them, 
 and asks for no affirmative relief, 
 except it be by the prayer for general 
 relief." A writ enjoining a party 
 
 from unlawfully selling intoxicating 
 liquors upon certain premises de 
 scribed as " part of lot No. 2, in 
 the N. E. quarter of the N. W. quar- 
 ter of section 23," etc., is not void 
 for uncertainty, in not specifying the 
 particular building or place intended. 
 Granger and Robinson, JJ., dissent- 
 ing. Ver Straeten v. Lewis. 77 Iowa. 
 130, 41 N. VV. 594. 
 
 71. Lyon v. Botchiord, 25 Hun 
 (N. Y.), 57; Laurie v. Laurie, 9 
 Paige (N. Y.), 234. Injunctions 
 should be clear and certain in their 
 terms, so that the parties upon whom 
 they are served may readily know 
 what they can or cannot do under 
 them. A prohibition against carry 
 ing on " said business " in a certain 
 way, was limited by construction to 
 the particular part of the business 
 complained of, whicn was described 
 in the same paragraph. Baldwin v. 
 Miles, 58 Conn. 496, 20 Atl. 618. An 
 injunction should contain sufficient 
 information upon its face to apprise 
 the party upon whom it is served 
 what he is restrained from doing, 
 without the necessity of resorting to 
 the complainant's bill to ascertain 
 what the injunction means. Sulli 
 van v. Judah, 4 Paige (N. Y.), 444. 
 
 206
 
 Classification and Poem. 
 
 §116 
 
 decided in Kansas that if an injunction is plain and explicit in 
 restraining the defendant from the acts complained of, it is not 
 void by reason of its awkward and inaccurate recitals, nor because 
 the verification of the injunction petition is of doubtful suf- 
 ficiency ; 72 but if it restrains defendant from doing acts not recited, 
 nor referred to in the injunction petition, it will be void. 73 
 
 § 116. Settling and correcting form of permanent injunction. 
 — The form of an injunction decree or judgment should be dis- 
 cussed and settled at the time it is signed by the judge ; if defective, 
 it should be brought to his notice on a motion for resettlement, and 
 it cannot thereafter be substantially varied without a rehearing. 74 
 
 72. State v. Pierce, 51 Kan. 241, 
 32 Pac. 924, where the court said: 
 " The order of injunction itself is at- 
 tacked as a nullity. The order starts 
 out by reciting that an application 
 was presented to the probate judge 
 of Barber county, and that it was 
 shown that the district judge was 
 absent from the county. Then fol- 
 lows an order of injunction, restrain- 
 ing the defendant and other members 
 of the board of county commission- 
 ers, from doing certain acts, to pre- 
 vent the doing of which said injunc- 
 tion case was commenced, and this 
 order was signed, ' G. W. McKay, 
 District Judge of Barber County, 
 Kansas.' The recitals contained in 
 the order are, to say the least, very 
 awkward. The order appears to have 
 been prepared to be issued by the pro- 
 bate judge, but it was in fact made 
 by the district judge. We think, 
 however, these recitals are not an es- 
 sential part of the order. The com- 
 mand restraining tne defendant from 
 doing the acts mentioned in the order 
 is explicit. We cannot say that the 
 defendant might obey or disregard it, 
 as he saw fit. If the proceedings in 
 the injunction case were erroneous : 
 
 the defendant's remedy was to have 
 applied to the District Court of Bar- 
 ber county, or the judge thereof, to 
 dissolve the injunction, and if errors 
 were still committed by that court or 
 judge, the defendant had ample rem- 
 edy by proceedings here. It is claimed 
 that the affidavit to the petition for 
 injunction was not signed by the 
 plaintiff or his agent, but by a 
 stranger to the record. It is true that 
 it was not signed by the county at- 
 torney but by one Charles W. Pease, 
 whose relation to the case does not 
 appear. We do not deem it neces- 
 sary to decide whether this was a 
 sufficient verification of the petition 
 for the purposes of granting an in- 
 junction, but we do hold that the 
 order of injunction was not void, be- 
 cause of a defective affidavit. It was, 
 at most, erroneous for the district 
 judge to issue the injunction, and the 
 error, if any, could only be corrected 
 by a proper proceeding in that action. 
 The defendant could not treat the or- 
 der of injunction as absolutely void, 
 for that reason." 
 
 73. State v. Rush County Com'rs. 
 35 Kan. 150, 10 Pac. 535. 
 
 74. Gerber v. Metropolitan El. R. 
 
 207
 
 Sue 
 
 Classification and Foem. 
 
 According to the former chancery practice, the decree might be 
 corrected on motion as to mere clerical errors, or by the insertion of 
 any provision or direction which would have been inserted as mat- 
 ter of course, if it had been asked for at the hearing, as a necessary 
 or proper clause to carry into effect the decision of the court. 75 
 If the judgment is objectionable in form, the defendant 
 should, if he has an opportunity, object to it, and then, if 
 necessary, make a motion in the court below to correct it ; 
 if this motion is denied, an appeal will lie, but an appeal 
 without making such motion is not the proper remedy. 76 
 
 Co.. 23 N. Y. Supp. 166. See, also, 
 Union Nat. Bank v. Kupper, 63 N. Y. 
 617; Kraushaar v. Meyer, 72 N. Y. 
 602 ; Beers v. Shannon, 73 N. Y. 292, 
 297. 
 
 75. Clark v. Hall, 7 Paige (N. 
 Y.), 382; Sprague v. Jones, 9 Paige 
 (N. Y.), 395. See, also, Sperb v. 
 
 Metropolitan El. R. Co., 44 N. Y. 
 St. Rep. 216, where, the facts having 
 been fully found it was held that an 
 error might be cured by modifying 
 the judgment to conform to them. 
 
 76. Simmons v. Craig, 137 N. Y. 
 550, 33 N. E. 76. 
 
 208
 
 Geanting of Injunctions. 
 
 CHAPTER IV. 
 
 The Geanting of Injunctions; Application; Notice; 
 
 Service. 
 
 Section 117. Judicial discretion in respect to injunctions. 
 
 118. Sound discretion considered. 
 
 119. Discre -ion as affected by statutes. 
 
 120. No discretion in cases of torts. 
 
 121. Abuse of discretion in granting injunctions. 
 
 122. Discretion not to be forced Dy mandamus. 
 
 123. Continuance of injunctions. 
 
 124. Notice of application — Necessity of. 
 
 125. Same subject continued. 
 
 126. Same subject — Rule in New York. 
 
 126a. Same subject — Where injunction operates to suspend general 
 
 business of corporation. 
 126b. Same subject — Statutes as to length of time for which notice 
 
 must be given. 
 126c. Same subject — Waiver of notice. 
 126d. Same subject — Qualification of rule — Statutes. 
 
 127. Notice — Perpetual injunctions. 
 
 128. Application on what made. 
 
 129. Same subject — Federal practice. 
 
 130. Motions for temporary injunction. 
 
 131. New York injunctions formerly on petition. 
 
 132. Special prayer for injunction. 
 
 133. Temporary injunction pending an action for a permanent. 
 
 134. Temporary injunction for extrinsic cause. 
 
 135. Same subject. 
 
 136. Affidavits. 
 
 137. Conflicting affidavits, etc. 
 
 138. Substitute for affidavits. 
 
 139. Additional evidence — secondary evidence. 
 
 140. Granting injunction before bill filed. 
 
 141. Same subject. 
 
 142. Same subject — Alabama rub. 
 
 143. Granting injunction on bill filed — Chancery practice. 
 143a. Where answer denies facts alleged in bill. 
 
 144. Granting injunction in spite of answer. 
 
 145. Verification of bill. 
 
 146. Verification of bill in New Jersey. 
 
 147. Same subject — Maryland rule. 
 
 209 
 14
 
 § 117 
 
 (jkantinu of Injunctions. 
 
 Section 148. Verification in Georgia and South Carolina. 
 
 149. Verification — Federal practice. 
 
 150. Allegations on information and belief. 
 
 151. Service of injunction. 
 
 151a. Party enjoined out of State — Mode of service. 
 152 Subpoenas — Service of. 
 152a. Substituted service. 
 
 153. Temporary injunctions by whom granted. 
 
 154. Granting on Sunday and holidays or in vacation. 
 
 155. Second injunctions. 
 
 156. Injunction against parties only — Exception. 
 
 157. Subsequent applications — Bar to. 
 
 Section 117. Judicial discretion in respect to injunctions.- 
 
 The granting or refusing of a temporary injunction rests in the 
 sound discretion of courts of original jurisdiction. 1 And an in- 
 
 1. United States. — Buffington v. 
 Harvey, 95 U. S. 99, 24 L. Ed. 381; 
 King v. Willimason, 80 Fed. 170. 25 
 C. C. A. 355, 42 U. S. App. 393; 
 Louisville Trust Co. v. Cincinnati In- 
 clined P. R. Co., 78 Fed. 307; McCoy 
 v. Marietta & C. R. Co., Fed. Cas. No. 
 8730b. 
 
 California. — Coolot v. Central Pac. 
 R. Co., 52 Cal. 65. 
 
 Connecticut. — Phoenix Ins. Co. v. 
 Carey (Conn. 1908), 68 Atl. 893. 
 
 Florida. — Suwannee & S. P. R. Co. 
 v. West Coast Ry. Co. (Fla. 1905), 
 39 So. 538; Swepson v. Call, 13 Fla. 
 337. 
 
 Georgia. — Sanford v. Tanner, 105 
 Ga. 486, 30 S. E. 621; Warren v. 
 Monnish, 97 Ga. 399, 23 S. E. 823; 
 Warmack v. Brownlee, 84 Ga. 196, 
 10 S. E. 738; Powell v. Hammond, 81 
 Ga. 567, 8 S. E. 426; East Rome 
 Town Co. v. Cothran, 81 Ga. 359. 8 
 S. E. 737; Howard v. Lowell Mach. 
 Co., 75 Ga. 325; Cherokee Iron Co. 
 v. Jones, 52 Ga. 276; Burchard v. 
 Boyce, 21 Ga. 6. 
 
 Illinois. — People v. Galesburg, 48 
 111. 485. 
 
 Indiana. — Laporte v. Scott (Ind. 
 1906), 76 N. E. 878. 
 
 Kansas. — Johnson v. County 
 Commrs., 34 Kan. 670, 9 Pac. 384. 
 
 Louisiana. — State v. Judge of Dis- 
 trict Court. 51 La. Ann. 1768, 26 So. 
 347. 
 
 Maryland. — Welde v. Scotten, 59 
 Md. 42; McCreery v. Sutherland, 23 
 Md. 471, 87 Am. Dec. 578. 
 
 Massachusetts. — Carleton v. Rugg, 
 149 Mass. 550, 22 N". E. 55, 5 L. R 
 A. 193. 
 
 Mississippi. — Brown v. Speight, 30 
 Miss. 45. 
 
 Nevada. — Hobart v. Ford, 6 Nev. 
 77. 
 
 New Jersey. — Coast Co. v. Spring 
 Lake, 56 N. J. Eq. 615, 36 Atl. 21; 
 Doughty v. Somerville & E. R. Co., 
 7 N. J. Eq. 629, 51 Am. Dec. 267. 
 
 New York. — Brass v. Rathbone, 153 
 N. Y. 435. 47 N. E. 905 ; Wormser v. 
 Brown, 149 N. Y. 163, 43 N. E. 524: 
 Strasser v. Moonelis, 108 N. Y. 611. 
 15 N. E. 730; Hatch v. Western 
 Union Teleg. Co., 93 N. Y. 640; 
 Pfohl v. Sampson, 59 N. Y. 174; Peo- 
 ple v. Schoonmaker. 50 N. Y. 499- 
 
 210
 
 Granting oe Injunctions. 
 
 117 
 
 junction will not be issued when upon a broad consideration of 
 the situation of all the parties in interest good conscience does not 
 
 Van Denater v. Kelsey, 1 N. Y. 533; 
 Weil v. Auerbach, 33 App. Div. 629, 
 53 N. Y. Supp. 339; New York City 
 & W. R. Co. v. Portchester Street R. 
 Co., 23 App. Div. 407, 48 N. Y. Supp. 
 321. 
 
 Oklahoma. — Couch v. Orne, 3 Okla. 
 508, 41 Pac. 368. 
 
 Oregon. — Burton v. Muffett, 3 Oreg. 
 29. 
 
 Pennsylvania. — Kneedler v. Lane 3 
 Grant's Cas. 523; Gray v. Ohio, & 
 P. R. Co., 1 Grant's Cas. 412; Col- 
 lins v. Northeastern El. R. Co., 2 Pa. 
 Dist. R. 417. 
 
 Wisconsin. — Kulinski v. Dambrow 
 ski, 29 Wis. 109. 
 
 Is discretionary in case of a 
 bill filed ancillary to action of 
 ejectment. — King v. Williamson, 80 
 Fed. 170, 25 C. C. A. 355, 42 U. S. 
 App. 393. 
 
 Is discretionary in case to re- 
 strain issuance of writ of pos- 
 session. — Sanford v. Tanner, 105 Ga. 
 486, 30 S. E. 621. 
 
 Construction of street rail- 
 road. — In Gloversville v. Johnstown, 
 etc., R. Co., 49 N. Y. St. Rep. 315, 
 defendant's charter restricted it to 
 the use of animal power. By an agree- 
 ment in writing the plaintiff granted 
 defendant the right to use electricity 
 as a motive power, and it was pro- 
 vided that nothing therein should be 
 construed as acknowledging that the 
 railroad may lawfully build or main- 
 tain its road upon the side of the 
 street. In an action for a violation 
 of this agreement in not moving it3 
 road to the middle of the street an 
 injunction was granted restraining 
 the construction of said road on the 
 side of the street pending the action. 
 
 Held, that the granting of such in- 
 junction was not an improper exer- 
 cise of discretion and would not be 
 disturbed. Where question of estop- 
 pel by standing by and seeing ex- 
 pensive improvements made on the 
 premises without giving notice of 
 title depends in part on proof to be 
 made at the trial, the discretion of 
 the chancellor in granting a tempo- 
 rary injunction until the facts in- 
 volved can be tried by a jury will not 
 be controlled. 
 
 Issuance of bonds. — Whether, 
 pending a proceeding under the Kan- 
 sas statute to test the validity of an 
 election held on the question of is- 
 suing county bonds, the issue of the 
 bonds should be enjoined, is a mat- 
 ter of judicial discretion. Johnson v. 
 Wilson County Com'rs, 34 Kan. 670. 
 
 " It may be safely asserted as a 
 general rule in our courts, that all 
 injunctions depend upon the dis- 
 cretion of the chancellor, and are to 
 be granted or denied according to the 
 justice and equity of each particular 
 case." Tucker v. Carpenter, 24 Fed. 
 Cas. No. 14217, Hempst. 440, 441. 
 Per Johnson, J. 
 
 The granting or refusing of an in- 
 junction rests in the sound discretion 
 of a court of equity, and ought not. 
 as a general rule, to be granted, 
 when, under the circumstances it 
 would be against good conscience or 
 productive of great hardship. Loy v. 
 Madison & Hancock Gas Co., 156 Ind. 
 332, 58 N. E. 844. Per Jordan, J., 
 citing City of Logansport v. Uhl, 99 
 Ind. 531, 50 Am. Rep. 109. 
 
 The court will not extend al- 
 legation by construction where a 
 party asks for the extraordinary 
 
 211
 
 §117 
 
 Geantino of Injunctions. 
 
 require it. 2 So where the controversy involves disputed questions 
 of fact as well as grave questions of law there is not an abuse of 
 discretion in granting an injunction until a trial can be had upon 
 the merits of the cause. 3 Where the pleadings and affidavits of 
 the parties show a controverted state of facts the court of original 
 jurisdiction exercises its discretion in assuming one of two oppo- 
 site versions of fact to be correct, and if this discretion leads to the 
 granting of a temporary injunction it will not be disturbed on 
 appeal, 4 unless it clearly appears from the complaint that the 
 plaintiff cannot in any point of view be entitled to the final relief 
 of injunction as demanded therein. 5 Again, if the discretion leads 
 to a refusal of the injunction it will ordinarily not be disturbed 
 where there is a remedy in damages and the defendant is solvent 
 and able to respond therefor. 6 It is also usually an exercise of 
 
 remedy of injunction but to entitle 
 them to such writ they must clearly 
 show their right to the relief. Bishop 
 v. Huff (Neb. 1908), 116 N. W. 605. 
 
 2. Heilman v. Lebanon & Annville 
 St. Ry. Co., 175 Pa. St. 188, 199, 34 
 Atl. 647. Per Williams, J. 
 
 The weight of evidence should 
 control the judge in the exercise of 
 his discretion. Campbell v. White, 
 39 Fla. 745, 23 So. 555. 
 
 3. Electric Ry. Co. v. Savannah, 
 Fla. & W. R. Co., 87 Ga. 261, 13 S. C. 
 512. See, also, Lamar v. Spalding, 
 164 Fed. 27. 
 
 4. Strasser v. Moonelis, 108 N. Y. 
 611, 15 N. E. 730; Pfohl v. Sampson, 
 59 N. Y. 176; Brown v. Cheese 
 Assoc'n, 59 N. Y. 242; People v. 
 Schoonmaker, 50 N. Y. 499; Paul v. 
 Munger, 47 N. Y. 469. Where the 
 record shows a bill to enjoin defend- 
 ant from ditching a swamp above a 
 certain spring, to which plaintiff had 
 purchased the right to dig a mill 
 race, supported by affidavits that the 
 water ran through the swamp, but 
 opposed by affidavits that no stream 
 
 flowed through the swamp, an appel- 
 late court cannot reverse for an abuse 
 of discretion in refusing the injunc- 
 tion. Warmack v. Brownlee, 10 S. E. 
 738, 38 Ga. 196. See, also, McMekin 
 v. Richards, 81 Ga. 192, 6 S. E. 185; 
 Richards v. Dower, 64 Cal. 62, 64. 
 Every material allegation in a bill 
 for an injunction was traversed and 
 on the hearing the evidence upon each 
 of the issues was conflicting. Held, 
 that there was no abuse of discretion 
 in refusing to grant the injunction. 
 Wheelan v. Clarke, 79 Ga. 181, 3 S. 
 E. 901; Couch v. Williams, 79 Ga. 
 211, 4 S. E. 16. 
 
 5. McHenry v. Jewett, 90 N. Y. 
 58. 
 
 6. Clay v. Clay, 86 Ga. 359, 12 S. 
 E. 1064. In injunction proceedings, 
 petitioners' evidence showed that they 
 had sold a ginning outfit to one of 
 defendants at a large discount, with 
 the understanding that it was not to 
 be operated within two miles of the 
 one then operated by petitioners; 
 that this defendant subsequently 
 leased the ginning outfit, so pur- 
 
 212
 
 Granting of Injunctions. 
 
 §118 
 
 Bound discretion not to interfere by injunction in quarrels between 
 husband and wife. 7 
 
 § 118. Sound discretion considered. — As distinguished from 
 arbitrary discretion and from a lack of discretion, sound discretion 
 consists in an observance of the rules and considerations which 
 have generally guided and influenced the courts in granting pre- 
 liminary injunctions; and many of these rules of experience have 
 been presented and illustrated in the course of this chapter. In 
 any given case such discretion is shown in the steady judgment 
 with which the judge applies the general rules to the particular 
 facts with which he has to deal. 8 The granting of an injunction is 
 
 chased, to his co-defendants, who had 
 knowledge of the conditions of the 
 sale; and that, in violation of the 
 agreement, they located it within the 
 prohibited district. Defendants' evi- 
 dence was to the effect that it was not 
 until after the sale that petitioners 
 undertook to affix the condition as to 
 the territory within which the gin 
 should be operated. It also ap- 
 peared that the defendant who had 
 purchased the outfit was solvent, and 
 able to respond in damages. Held no 
 abuse of discretion to refuse the in- 
 junction. Hill v. Staples, 85 Ga. 863, 
 11 S. E. 967. 
 
 7. It is no abuse of discretion for 
 the court to refuse an interlocutory 
 injunction prohibiting the husband, 
 from whom his wife has separated, 
 from occupying her property, of 
 which he was in possession when she 
 separated from him. Payton v. Pay- 
 ton, 86 Ga. 773, 13 S. E. 127, where 
 Bleckley, C. J., said : " Judicial in- 
 terference in a family quarrel of this 
 nature should not be too summary. 
 Very likely delay may have a salutary 
 effect. The parties left to themselves 
 may become reconciled, and compose 
 
 their differences. The granting of an 
 injunction is discretionary in any 
 case. Code, § 3220. Not infrequently 
 the wisest exercise of this discretion 
 is by non-intervention." 
 
 8. In Rend v. Venture Oil Co., 48 
 Fed. 248, Reed, J. : " There are cer- 
 tain well-settled rules regulating the 
 granting of preliminary injunctions 
 which must govern in passing upon 
 this motion. They are that the com- 
 plainant must show a clear legal or 
 equitable interest or right which is to 
 be protected; that there must be a 
 well-grounded apprehension of imme- 
 diate injury to those rights or inter- 
 ests, and a clear necessity must be 
 shown of immediate protection to such 
 interest or right which would other- 
 wise be seriously injured or impaired. 
 If it appears that the preliminary in- 
 junction is not necessary to preserve 
 interests or property in statu quo 
 until final hearing and the rights of 
 the complainant will suffer no serious 
 injury until that time, or that the in- 
 jury threatened is of such a nature 
 that it can be remedied on final hear- 
 ing, then the injunction ought not 
 to be granted. And so if it appears 
 
 213
 
 3 U8 
 
 Granting of Injunctions. 
 
 matter of grace in no sense except that it rests in the sound dis- 
 cretion of the court, and that discretion is not an arbitrary one. 
 If improperly exercised in any case either in granting or refusing 
 it, the error is one to be corrected upon appeal. 9 Such discretion 
 will often be influenced by a consideration of the relative injury 
 and convenience likely to result to the parties from granting or 
 refusing the injunction; and where it is sought to restrain a public 
 or quasi public enterprise, the court will consider how far public 
 interests may be affected by a suspension of the enterprise, 10 even 
 where the object of the action may be defeated by refusing a tem- 
 
 that the complainant's rights are not 
 sufficiently clear, and the considera- 
 tions of respective convenience or in- 
 convenience to parties complainant 
 and defendant, when balanced, show 
 that serious injury may be done to 
 i the defendant by the granting of the 
 injunction, and no serious injury will 
 be done to complainant by withhold- 
 ing it until final hearing, then the in- 
 junction ought not to be granted. 
 Other considerations may have at 
 times been held as controlling in spe- 
 cial cases, but the general rules, as I 
 have stated, are those which have 
 been held as governing the discretion 
 which is to be exercised in passing 
 upon such motions." See, also. Fin- 
 ger v. City of Kingston, 29 N. Y. 
 St. Rep. 702. 
 
 9. Campbell v. Seaman, 63 N. Y. 
 568, 20 Am. Rep. 567. Per Earl, J. 
 See, also, Standard Oil Co. v. Oeser, 
 11 App. D. C. 80, 25 Wash. L. Rep. 
 500; Rowley v. Van Benthuysere. 16 
 Wend. (N. Y.) 369. 
 
 Except in clear case of abuse 
 of discretion an order for an injunc- 
 tion will not be reversed. Simms v. 
 Patterson (Fla. 1907), 43 So. 421. 
 
 That an injunction is a matter 
 of grace does not mean that a 
 
 chancellor may grant or refuse an 
 injunction as he pleases, but that his 
 action is controlled by considerations 
 of conscience. He does that which 
 in good conscience he ought to do. 
 The question in each case must de- 
 pend upon the circumstances out of 
 which it grows, and requires an exer- 
 cise of judgment in determining the 
 equities involved." Heilman v. Leba- 
 non & Annville St. Ry. Co., 180 Pa. 
 St. 627, 629. 37 Atl. 119. Per Wil- 
 liams, J. 
 
 The granting of an injunction is a 
 judicial act, and not only is it so, 
 but it requires the exercise of the 
 soundest judicial discretion, founded 
 not on arbitrary notions of justice, or 
 of right and wrong, but on a knowl- 
 edge of the settled rules of equity. 
 Commercial Bank of Rodney v. State, 
 4 Sm. & M. (Miss.) 439. 515. 
 
 The granting or refusal of a pre- 
 liminary injunction, whether manda- 
 tory or preventive, calls for the ex- 
 ercise of a sound judicial discretion 
 in view of all the circumstances of 
 the particular case. Harriman v. 
 Northern Securities Co.. 132 Fed. 464. 
 475. Per Bradford, J. 
 
 10. Myers v. Duluth Transfer Ry. 
 Co.. 53 Minn. 335, 55 N. W. 140. 
 
 214
 
 Gkanting of Injunctions. § 119 
 
 porary injunction. 11 So it is said that an injunction is of grace 
 and not of right; it is the conscience of the chancellor which is to 
 be aroused or quieted and he, to enlighten his conscience, as to 
 whether he should put forth his hand or withhold it, will look into 
 those facts which aggravate or mitigate the alleged wrongdoing. 12 
 And in the exercise of sound discretion a court of equity which 
 is asked to grant a preliminary injunction will consider the inter- 
 ests of both parties and also of the public, and will not without 
 some reasons of necessity interfere before trial with the conduct 
 or property of the defendant. 13 And the fact that complainants 
 cannot appeal from an order denying an injunction while the de- 
 fendants can appeal from an order granting one is not a reason 
 why the court should grant the injunction and it will not do so 
 except where the parties assent if it is convinced that one should 
 not issue. 14 
 
 § 119. Discretion as affected by statutes. — The Georgia Code 
 expressly makes the granting and continuing of an injunction 
 discretionary. 15 In North Carolina it has been held that the Code 
 authorizes an appeal from a judge at chambers refusing an in- 
 junction ; 16 but the Supreme Court will not interfere with an order 
 granting an injunction when the facts submitted to the court below 
 were controverted and doubtful and no serious injury to any of 
 the parties can arise therefrom. 17 Under the Louisiana Code of 
 
 11. Young v. Campbell, 75 N. Y. where the evidence before him was 
 525. conflicting. Goldsmith v. Elsas, 53 
 
 12. Pennsylvania Co. v. Ohio River Ga. 186; and should never be dis- 
 junction R. R. Co., 204 Pa. St. 356, turbed unless some principal of sub- 
 367, 54 Atl. 259. Per Dean, J. stantial equity has been violated. 
 
 Injunction is not a matter of right. Jones v. Johnson, 60 Ga. 260; Phil- 
 
 but of grace, resting in the sound dis- lips v. Davis, 61 Ga. 159; Dozier v. 
 
 cretion of the judge. Pelzer, Rodgers Owen, 62 Ga. 157; Bliley v. Taylor. 
 
 &, Co. v. Hughes, 27 S. C. 408, 415. 86 Ga. 163, 13 S. E. 283. Evidence 
 
 13. Carleton v. Rugg, 149 Mass. conflicting, Atwater v. Equitable 
 550, 556, 22 N. E. 55. Mort. Co., 86 Ga. R81, 12 S. E. 1065. 
 
 14. Edison Elec. L. Co. v. Buckeye 16. First Nat. Bank v. Jenkins, 64 
 Elec. Co., 64 Fed. 225. N. C. 719, followed in Jones v. 
 
 15. Ga. Code, § 3220. The chancel- Thome, 80 N. C. 72. 
 
 lor's discretion is not to be disturbed 17. Nimocks v. Cape Fear Shingle 
 
 215
 
 § 120 Granting of Injunctions. 
 
 Practice, which authorizes the granting of an injunction to pre- 
 vent one party from " doing some act injurious to the other party " 
 it is held that the courts have a sound discretion to exercise 
 whether to grant or refuse an injunction, and that an injunction 
 may properly bo refused where there is a dispute concerning legal 
 rights. 18 But in particular cases in which the law has directed 
 that an injunction should issue, a party who has complied with 
 the conditions prescribed by the law for its issuance has a right 
 to it, and the courts have no discretion to refuse it. 19 In New York, 
 the general statutory provisions relating to the granting of injunc- 
 tions are permissive and directory as indicated by the use of the 
 word may. 20 This is the case also in respect to the statute of 1881 
 authorizing injunctions to issue against trustees, committees and 
 guardians; 21 and in respect to injunctions against usurpation of 
 corporate franchises; 22 and to prevent waste by judgment debtors. 23 
 Some other special New York statutes employ the mandatory 
 word shall, and are, perhaps, somewhat restrictive of judicial 
 discretion in respect to the granting of the injunctions to which 
 those statutes relate. 24 
 
 § 120. No discretion in cases of tort. — In Pennsylvania it is 
 
 Co., 110 N. C. 230, 14 S. E. 684; S. C. porations incorporated in the State, 
 
 Forsaith Machine Co. v. Hope MiJl except such companies as carry on 
 
 Lumber Co., 109 N. C. 576, 13 S. E. business in the State. Re Electro 
 
 869. Pneumatic Transit Co., 51 N. J. Eq. 
 
 18. New Orleans v. Great Southern 71, 26 Atl. 463. 
 
 Tel. Co., 37 La. Ann. 571; La. Code 20. Code Civ. Pro., §§ 603, 604. 
 
 of Practice, art. 303. 21. L. 1881, ch. 654, § 6. 
 
 19. Beebe v. Guinault, 29 La. Ann. 22. Code Civ. Pro., § 1955. 
 795. See this case distinguished in 23. Code Civ. Pro., § 1442. 
 
 New Orleans v. Telephone Co., 37 La. 24. As for example the statute 
 Ann. 573. The court of chancery has which requires injunctions to issue to 
 no power to refuse an injunction for- prevent trespass or waste on the for- 
 bidding a corporation failing to pay est reserve, L. 1885, ch. 283, § 12; 
 its tax to do any business under its and the statute to protect the trade- 
 charter, on the ground that it has marks of workingmen unions, L. 1889, 
 been unable to transact business in ch. 385, § 2; and to prevent the cor- 
 the State, under N. J. Act, April 18, rupt expenditure of public moneys, 
 1884, imposing a tax or license fee L. 1879, ch. 307, § 2; and to prevent 
 of one-tenth of one per cent, on the violations of the dairy laws, L. 1885, 
 capital stock of manufacturing cor- ch. 183, § 19, as amended. 
 
 216
 
 Gbanting of Injunctions. 
 
 §120 
 
 held that the principle that the chancellor will refuse to enjoin 
 when greater injury will result from the granting than from the 
 refusing of an injunction has no application where the act com- 
 plained of is of itself tortious. 25 And it has been declared in this 
 connection that it would be an extraordinary exercise of discretion 
 not to interfere with a wrongdoer for the reason that he would 
 derive a greater benefit from the wrongful possession of another's 
 
 25. Walters v. McElroy, 151 Pa. 
 St. 549, 25 Atl. 125, where the court 
 said: "To extricate themselves from 
 this difficulty, the defendants say that 
 the plaintiff's land is worth little, 
 while they are engaged in a great min- 
 ing industry which will be paralyzed 
 if they shall be restrained from a con- 
 tinuance of the acts complained of, 
 and that in equity a decree is of 
 grace, and not of right; and invok- 
 ing the principle that a chancellor 
 will never enjoin an act when by so 
 doing greater injury will result than 
 from a refusal to enjoin, they ask 
 that the plaintiff be turned over to 
 his remedy at law. The phrase " of 
 grace " predicated of a decree in 
 equity had its origin in an age when 
 kings dispensed their royal favors by 
 the hands of their chancellors, but, 
 though it continues to be repeated oc- 
 casionally, it has no rightful place in 
 the jurisprudence of a free common- 
 wealth, and ought to be relegated to 
 the age in which it was appropriate. 
 It has been somewhere said that 
 equity has its laws as law has its 
 equity. This is but another form of 
 saying that equitable remedies are 
 administered in accordance with 
 rules as certain as human wisdom 
 can devise, leaving their application 
 only in doubtful cases to the discre- 
 tion, not the unmerited favor or 
 grace of. the chancellor. Certainly no 
 
 chancellor in any English speaking 
 country will at this day admit that 
 he dispenses favors or refuses right- 
 ful demands, or deny that when a 
 suitor has brought his cause clearly 
 within the rule3 of equity jurispru- 
 dence, the relief he asks is demand- 
 able ex delicto justiliac and needs not 
 to be implored ex gratia. And as to 
 the principle invoked that a chan- 
 cellor will refuse to enjoin when a 
 greater injury will result from 
 granting than from refusing an in- 
 junction, it is enough to observe that 
 it has no application where the act 
 complained of is in itself as well as 
 in its incidents, tortious. In such 
 case it cannot be said that injury 
 would result from an injunction, for 
 no man can complain that he is in- 
 jured by being prevented from doing 
 to the hurt of another, that which 
 he has no right to do. Nor can it 
 make the slightest difference that the 
 plaintiff's property is of insignificant 
 value to him as compared with the 
 advantages that would accrue to the 
 defendants from its occupation. The 
 plaintiff's right to an injunction be- 
 ing established on account of the 
 damages heretofore sustained follows 
 as an incident and to avoid a multi- 
 plicity of suits. MeGowin v. Reming- 
 ton, 12 Pa. St. 56; Souder's Ap- 
 peal, 57 Pa. St. 498; Allison's Ap- 
 peal, 77 Pa. St. 221." 
 
 217
 
 § 121 
 
 Granting of Injunctions. 
 
 property than the owner would from his rightful ownership. 26 It 
 has also been decided in Massachusetts that an injunction should 
 not be denied and the plaintiff confined to his remedy for damages 
 on the ground that the injury of the injunction to the wrongdoer 
 would greatly exceed the benefit to the plaintiff, for the result 
 of such denial would be " to allow the wrongdoer to compel inno- 
 cent persons to sell their right at a valuation." 27 
 
 § 121. Abuse of discretion in granting injunction. — It is not 
 often in our time that the judges are to be charged with an abuse of 
 
 26. In Corning v. Troy, etc., Fac- 
 tory, 40 N. Y. 191, 205, the court 
 said : " The question then comes to 
 this, whether the defendant, who has 
 wrongfully diverted from the plain- 
 tiffs a stream affording such a water 
 power, shall be permitted to continue 
 such wrongful diversion, and then to 
 deprive the plaintiffs of what is 
 clearly theirs without their assent, 
 upon the ground simply that its res- 
 toration would be a great damage to 
 it. In other words, that by its con- 
 tinuance wrongfully to appropriate 
 to its own use the property of the 
 jlaintiffs, it derives a much greater 
 benefit than the plaintiffs could by 
 being restored to their own. The 
 bare statement of the question would 
 seem to suggest the only proper an- 
 swer. The very idea of justice is to 
 give to each one his due." 
 
 27. Lynch v. Union Inst, for Sav- 
 ings, 158 Mass. 394, 33 N. E. 603, 
 where a sub-lessee was threatened 
 with eviction by the landlord and 
 Holmes, J., said: "The only ques- 
 tion intended to be presented by the 
 report is whether the injunction 
 should be denied and the plaintiff 
 confined to recovering his damages 
 on the ground that the injury of the 
 injunction to the owner would be in- 
 
 commensurate with the benefit to the 
 plaintiff. The result of denying the 
 injunction is ' to allow the wrongdoer 
 to compel the innocent persons to 
 sell their right at a valuation.' 
 Tucker v. Howard, 128 Mass. 361, 
 363. The decision in Brande v. 
 Grace, 154 Mass. 210, 31 N. E. 633, 
 is not an authority for that. There 
 the defendant built a structure on its 
 own land after a decision by the Su- 
 perior Court that it had a right to 
 do so. When the plaintiff's lease had 
 but eight months more to run, this 
 court decided that the structure was 
 unauthorized because it interfered 
 with an implication in the lease that 
 the. rooms should continue to open 
 on Fremont street; but an injunction 
 was refused, in view of the early 
 termination of the lease. In the 
 present case the plaintiff's lease has 
 a year and nine months to run. The 
 defendant is not interfering with a 
 doubtful easement under a mistaken 
 view of its rights. Now, at all 
 events, if not from the beginning, it 
 simply is dispossessing or trying to 
 dispossess, a man of his land by will- 
 ful wrong; and its argument that it 
 should not be restrained in proceed- 
 ing must be that it can make more 
 money out of the plaintiff's property 
 
 218
 
 Granting of Injunctions. § 121 
 
 discretion. Of course with a long motion calendar and a waiting 
 throng of ex parte applicants before him a judge is liable some- 
 time to grant an injunction without the exercise of sound dis- 
 cretion. 28 In an action in the Superior Court of the city of New 
 York to restrain a tenant from selling pools and registering bets 
 on horse races on the premises leased from plaintiff, the complaint 
 and affidavits were remarkable in failing to disclose any right or 
 equity of plaintiff or any injury to him; and they were open to 
 nearly every objection ever sustained by courts of equity as fatal 
 to an application for a temporary injunction ; the lease set forth did 
 not restrict the defendant's business and the complaint did not 
 allege any injury to plaintiff but did allege that defendant's busi- 
 ness was in violation of the Penal Code, which allegation was alone 
 a complete bar to injunctive relief; to grant the injunction also 
 required the court to determine on a motion the constitutionality 
 of the statute of 1887 in relation to racing associations. The gen- 
 eral term were of opinion that the controversy was not a real one 
 and that plaintiff ought to have been turned out of court as not 
 having clean hands. 29 There is no abuse of discretion in refusing 
 
 than the plaintiff can if it is allowed tiff avers that the lease runs from 
 
 to take it. See Goodson v. Richard- August 1, 1892, until Mav 1 1895. 
 
 son, L. R. 9 Ch. App. 221, 224. The lease itself shows that it expires 
 
 28. Although the granting of an May 1, 1894. It contains no restric- 
 mjunction is to a certain extent a tion whatever against the carrying 
 matter of discretion with the court, on of any kind of business upon the 
 yet where no equitable case appears demised premises. The business 
 on the record, the decree of the court sought to be restrained is alleged to 
 below will be reversed on a writ of be that of receiving money and mak- 
 error. Thompsonville Scale M'f'g ing, registering and recording bets 
 Co. v. Osgood, 26 Conn. 16. upon horse races run at certain race 
 
 29. DeLacy v. Adams, 52 N. Y. tracks within the State of New York 
 St. Rep. 509, Freedman, J., said: and elsewhere. There is no allega- 
 " The action is brought by plaintiff tion in the complaint that the carry- 
 to restrain the defendant as tenant ing on of the business complained 
 under a lease from the plaintiff, of is injurious to the plaintiff or to 
 from carrying on a certain business the demised premises, and for all 
 at the demised premises, No. 43 West that appears the plaintiff may have 
 Twenty-ninth street, in the city of been greatly benefited. So there be- 
 New York. In the complaint and in ing no covenant whatever in the case 
 his accompanying affidavit the plain- restricting the use to be made of 
 
 219
 
 §121 
 
 Granting of Injunctions. 
 
 an injunction where the facts are complicated, the evidence con- 
 flicting, the legal questions difficult, and the defendant not in- 
 
 the premises the plaintiff simply 
 avers ' that at the time of the letting 
 of the said premises the said defend- 
 ant agreed not to use the same for 
 any business in violation of law,' and 
 ' that the said business, so conducted 
 at the said premises is in violation 
 of section 351 of the Penal Code of 
 this State.' Now the defendant 
 might have insisted that the com- 
 plaint does not show facts sufficient 
 to constitute a cause of action for 
 equitable relief by injunction in the 
 first place for want of an allegation 
 of damage, and in the second place 
 because upon plaintiff's own theory 
 the plaintiff has a remedy at law, 
 and especially under the criminal 
 law of the State. . . . Upon the 
 record thus made by the pleadings 
 and accompanying affidavits this 
 court has been called upon to deter- 
 mine the legality or illegality of the 
 said business on a mere motion. A 
 full and complete determination of 
 this question involves the constitu- 
 tionality of chapter 479 of the Laws 
 of 1887, which provides that the 
 Code provisions shall not apply to 
 the grounds of incorporated racing 
 associations during a certain time in 
 each year, and which, according to 
 defendant's claim, justifies his busi- 
 ness. The decisions of Brennan v. 
 Brighton Beach Racing Association, 30 
 N. Y. St. Rep. 406, and of People v. 
 Wynn, 35 N. Y. St. R. 487, off d, 128 
 N. Y. 599, 38 St. Rep. 1012, favor 
 the contention of the defendant, pro- 
 vided he does, as he claims, strictly 
 a commission business; but in 
 neither case was the constitutional 
 question passed upon. That question 
 
 as now presented is a nice and com- 
 plicated one, and a court of equity 
 should not assume jurisdiction to de- 
 termine it upon a mere motion, un- 
 less fully satisfied that all the neces- 
 sary facts are before the court, and 
 that the controversy between the par- 
 ties is a real one, and of such a char- 
 acter as to necessitate the interposi- 
 tion of the equitable powers of the 
 court. Owing to the insufficiency of 
 the complaint as already pointed out 
 the case does not call for the interpo- 
 sition of the equitable process of the 
 court. The accompanying affidavits 
 cannot and do not enlarge the cause 
 of action pleaded. But independently 
 of that consideration the record as a 
 whole does not fully and fairly repre- 
 sent all the facts which the court 
 should be put in possession of, and a 
 little reading between the lines sug- 
 gests a doubt whether the contro- 
 versy between the parties is of such 
 a character that a court of equity 
 should take cognizance of it. To be 
 entitled to any relief the plaintiff 
 must satisfy the court that the con- 
 troversy is a real one, and that he 
 comes into court with clean hands. 
 All these matters can be more satis- 
 factorily determined at the trial of 
 the issues, where the parties may be 
 orally examined and cross-examined. 
 Such trial may be had in a very 
 short time if the parties desire it. 
 For the present it is sufficient to say 
 that in every aspect which can be 
 properly taken the case at bar is one 
 in which the court will not interfere 
 by injunction in advance of the 
 trial." 
 
 220
 
 Granting of Injunctions. § 122 
 
 solvent so as to jeopardize redress for any damage that may be 
 sustained from the alleged trespass sought to be enjoined. 20 
 
 § 122. Discretion not to be forced by mandamus. — The grant- 
 ing of an injunction being a matter of discretion on the part of 
 the judge or court applied to, a mandamus will not generally lie 
 to compel its granting or vacating. 31 Thus in a case in which it 
 was deemed that the Practice Code of Louisiana vested a discretion 
 in the judge, it was held that mandamus would not lie to compel 
 him to restrain the city of Xew Orleans from disposing of the 
 general appropriation for the year, until the determination of a 
 pending action to try relator's right to have certain demands paid 
 out of it. 32 And the court of last resort will not interfere by 
 mandamus to compel the dissolution of an injunction on the filing 
 of an answer. 33 The Arkansas statute authorizing the issuing of a 
 mandamus against a circuit judge or a Circuit Court that refused 
 to grant an injunction was superseded by the Civil Code of that 
 State and is no longer in force. 34 Mandamus is not to be thu3 used 
 to perform the office of an appeal or writ of error. 33 In Louisiana 
 it is decided that the authority conferred on the Supreme Court 
 
 30. White v. Williamson, 92 Ga. but to simply ascertain whether he 
 443, 17 S. E. 604. See, also, Electric had any discretion in the premises. 
 Ry. Co. v. Savannah, Fla. & W. R. His exercise of discretion can be re- 
 Co., 87 Ga. 261, 13 S. E. 512. viewed only on appeal." See, also 
 
 31. Ex parte Schwab, 98 U. S. New Orleans v. Great Southern Tel. 
 240. See Lewis v. D'Albor, 116 La. Co., 37 La. Ann. 571; State v. Ri<rh- 
 679, 41 So. 31. tor, Judge, 38 La. Ann. 916; State 
 
 32. State ex rel. Johnson v. Righ- v. Police, Jury, 39 La. Ann. 765- 
 tor, 40 La. Ann. 852, 5 So. 416, State v. Parish Judge, 31 La. Ann. 
 where the court said: " On this state 794; State v. Judge, etc., 28 La. Ann , 
 of facts the question of law raised is 905. 
 
 not whether the plaintiff was enti- 33. Ex parte City Council, 24 Ala. 
 
 tied to his injunction at all, but 98, where Chilton, C. J. said: 
 
 rather was he entitled to it as a " Mandamus lies to compel the infe- 
 
 matter of right, and had the respond- rior courts to exercise a discretion 
 
 ent the discretion to refuse it. In a but not to control that discretion." 
 mandamus proceeding we are not at 34. Ex parte Hays, 26 Ark. 510. 
 
 liberty to inquire whether, in disal- 35. Ex parte Loring, 94 U. S. 418- 
 
 lowing the writ the respondent exer- Ex parte Flippin, 94 TJ. S. 350. 
 cised a sound and legal discretion, 
 
 221
 
 ^12-'! Gkanti.\<; OF I \.h nc tioxs. 
 
 by the Constitution 150 to grant remedial writs in the exercise of a 
 supervisory jurisdiction should only be exercised in special emer 
 gency cases and that mandamus will not be granted to compel a 
 judge to enjoin the enforcement of an ordinance where it does 
 not appear that temporary delay will work irreparable injury and 
 no action has been taken by the city. 37 The power conferred on 
 the Supreme Court, of Louisiana to issue a mandamus in such cases 
 does not enable the parly to substitute proceedings by mandamus 
 to proceedings by appeal. 38 
 
 § 123. Continuance of injunction. — The continuance as well 
 as the granting of a temporary injunction is within the discretion 
 of the court of original jurisdiction, which is not reviewable in 
 the Court of Appeals unless it appears from the complaint that the 
 plaintiff is not entitled to final injunctive relief. 39 It is obvious 
 that a temporary injunction which has been granted on facts ex- 
 trinsic to the cause of action should ordinarily be continued until 
 the final hearing and adjudication upon the merits. 40 In Iowa, 
 where fraud is the gravamen of the injunction petition, the in- 
 junction will not be dissolved on a mere denial of the allegations 
 of fraud but will be continued until the final determination of the 
 issue. 41 Upon a motion for continuance a reference may be ordered 
 under section 1015 of New York Code of Procedure to take proof 
 of controverted facts which are too uncertainly presented by the 
 affidavit; 42 and when the referee's report comes in, the court does 
 not sit to hear an appeal upon the law and the facts, and the prac- 
 tice does not authorize the filing of exceptions to the report, nor a 
 
 36. Art. 94. Steele v. Pittsburgh R. Co., 58 Hun, 
 
 37. Murat v. New Orleans (La. 611, 12 N. Y. Supp. 576. 
 
 1907), 44 So. 279. 40. Safety Electric, etc., Co. v. 
 
 38. Beasley v. Jenkins, 117 La. Creamer, 47 N. Y. St. Rep. 214. 
 577, 42 So. 145. 41. Stewart v. Johnston, 44 Iowa, 
 
 39. Strasser v. Moonelis, 108 N. Y. 435; Brigham v. White, 44 Iowa, 
 611, 15 N. E. 730. A temporary in- 677. 
 
 junction will not be continued when 42. Continental Store Co. v. Clark, 
 
 it appears that all the relief sought 7 N. Y. Civ. Pro. 183; off'd 100 N. 
 
 by the plaintiff will be obtained by Y. 365. 
 the final judgment in the cause. 
 
 222
 
 Granting of Injunctions. 
 
 §124 
 
 motion to overrule such exceptions and to confirm the report. 43 
 In Indiana a temporary injunction continues in force pending an 
 appeal from the order granting it, and is not affected by the filing 
 of an appeal bond unless the appellant is relieved from the opera- 
 tion of the injunction by a special supersedeas, which, on proper 
 showing, may be granted by the appellate court. 44 In Illinois a 
 temporary injunction may be kept in force pending an appeal 
 from a decree dismissing the suit for an injunction. 45 
 
 § 124. Notice of application ; necessity of. — It is a general rule 
 that an application for an injunction should not be granted without 
 notice to the adverse party. 46 And where a bill is amended by the 
 addition of a prayer for an injunction to restrain a defendant 
 against whom no order was originally prayed, he is entitled to 
 notice and to an opportunity to show cause to the contrary. 47 And 
 an injunction should not be granted without notice upon the veri- 
 fied complaint alone, when material allegations therein are made 
 
 43. Kelly v. Charlier, 18 Abb. N. 
 C. 416. 
 
 44. Miller v. Burket, 132 Ind. 469, 
 32 N. E. 309; Central, etc., Tel. Co. 
 v. State, 110 Ind. 203, 10 N. E. 922, 
 12 N. E. 136; Alderman v. Nelson, 
 111 Ind. 255, 12 N. E. 394; Randies 
 y. Randies, 67 Ind. 434; Walls v. 
 Palmer, 64 Ind. 493; State v. Chase, 
 41 Ind. 356. 
 
 45. Shreffler v. Nadelhoffer, 133 
 111. 536, 25 N. E. 630. 
 
 46. United States. — In re Cary, 10 
 Fed. 622. 
 
 Colorado. — People v. District 
 Court of Lake County, 29 Colo. 277, 
 68 Pac. 244, 93 Am. St. Rep. 61. 
 
 Florida. — Richardson v. Kittlewell, 
 45 Fla. 551, 33 So. 984. 
 
 Georgia. — Strickland v. Griffin, 70 
 Ga. 541. 
 
 Indiana. — Wallace v. McNey, 6 
 Ind. 300. 
 
 Iowa. — Minneapolis & St. Louis R. 
 R. Co. v. Chicago, Milwaukee & St. 
 P. R. Co., 116 Iowa, 681, 88 N. W. 
 1082. 
 
 New Jersey. — Ross v. Elizabeth 
 Town & S. R. Co., 2 N. J. Eq. 422. 
 
 New York. — Hallenberg v. Greene, 
 66 App. Div. 590, 73 N. Y. Supp. 
 403. 
 
 Washington. — Larsen v. Winder, 14 
 Wash. 109, 44 Pac. 123. 
 
 There should be a clear case 
 of urgent necessity to warrant the 
 granting of an injunction against a 
 municipality without notice. Chi- 
 cago v. Farson, 118 111. App. 291. 
 
 It is a matter within the dis- 
 cretion of the trial court whether 
 the holding of an election shall be 
 enjoined without notice. State v. 
 Nicoll, 40 Wash. 517, 82 Pac. 895. 
 
 47. Jack v. Kehler, 55 Ga. 639; 
 Spangler's Appeal, 64 Pa. St. 387. 
 
 223
 
 § 125 Granting of Injunctions. 
 
 " upon information and belief." M So there is no jurisdiction to 
 grant the injunction without either service of a summons or the 
 appearance of the defendant where notice is essential under the 
 statute. 49 And in Nebraska, under the statute there in force, when 
 it is deemed proper by the court or judge that the defendants shall 
 have notice of the application and be heard before the injunction 
 is granted, the judge or court may so direct and in the meantime 
 restrain the party from doing the things complained of. 50 In a 
 case in Michigan it is decided that an injunction to stay proceed- 
 ings at law can in no case be granted by a Circuit Court commis- 
 sioner without notice, and that if it is allowed without notice it is 
 void for want of jurisdiction in the commissioner. 51 Tf a bill is 
 without merits the court may on its face refuse an injunction 
 without requiring the defendant to show cause. 52 
 
 § 125. Same subject continued — It is obvious that important 
 enterprises and business of the defendant should not ordinarily 
 be arrested by an injunction issued without notice to him. 53 In 
 Kansas, where the injunction is granted at the commencement of 
 the action, the clerk shall indorse upon the summons " injunction 
 
 48. Dinehart v. Town of La. Fay- argue his right, and the judge will 
 ette 19 Wis. 677. near ^" m ex P arte - If convinced that 
 
 49. Hallenborg v. Greene, 66 App. the defendant should be called upon 
 Div. (N. Y.) 590° 73 N. Y. Supp. 403. to show cause, the judge will then 
 
 50. State v. Baker, 62 Neb. 810, order him up for that purpose, ap- 
 88 N W 124 pointing a time and place as the code 
 
 51. Beinay v. Coats, 17 Mich. 411. requires— but why should the de- 
 
 52. Remshart v. Savannah R. Co., fendant be troubled if there is obvi- 
 54 Ga 579 In Brown v. Wilson, 56 ously no merit in the bill?" 
 
 Ga 534, Bleckley, J., said: "The 53. Kane v. Montreal Tel. Co. 
 judge on inspecting a bill which is (Quebec), 20 L. Can. Jurist. 120; 
 clearly without equity may decline Atchison, etc., R. Co. v. Fletcher, 35 
 to order the defendants to show cause. Kan. 230. In Androvette v. Browne, 
 54 Ga 579 It does not follow from 4 Abb. Pr. 440, an ex parte motion 
 this that the complainant will be for an injunction was denied, with 
 denied a hearing in support of his leave to renew on the regular eight- 
 bill if he asks for it when the bill is day notice, it being, as Roosevelt, J., 
 presented or before the judge has re- said, "no case of an immediately 
 turned it with his decision. By brief, pressing character. See State v. 
 or otherwise, the complainant may Rush County, 35 Kan. 150. 
 
 224
 
 Granting of Injunctions. § 125 
 
 allowed," and it shall not be necessary to issue the order of in- 
 junction ; nor shall it be necessary to issue the order where notice 
 therefor has been given to the enjoinee, but service of the sum- 
 mons so indorsed, or notice of the application, shall be notice of 
 the allowance of the injunction. 54 And it is not essential, though 
 perhaps more regular, that such indorsement upon the summons 
 should be signed by the clerk. 55 In Tennessee the practice is to 
 grant temporary injunctions on the applicant's ex parte statement, 
 under oath, showing his probable right and a probable danger to 
 it. 5S In New Jersey it seems a matter of discretion with the chan- 
 cellor to require notice of the application to be given to defendant, 
 whether he has appeared or not. If he has answered, it is irregu- 
 lar, under the rules of practice, not to give him notice, unless the 
 notice is dispensed with by the master. 57 In a recent case in 
 Florida it is decided that before granting a temporary injunction 
 or restraining order without notice it is said that the court should 
 be satisfied that a clear case is made by the bill therefor and also 
 that it has clearly been made to appear that it is a case of urgent 
 necessity and one in which irreparable mischief will be produced 
 if the aid of the court is denied. 58 In New Brunswick a mandatory 
 injunction cannot be granted without notice. 59 
 
 54. Gen. Stats. 1889. § 4338. the sufficiency of the service of the 
 
 55. State v. Pierce, 51 Kan. 241, original order, signed by the district 
 32 Pac. 924. The court: "The stat- judge himself." 
 
 ute does not require the indorsement 56. Flippin v. Knaffle, 2 Cooper, 
 
 to be signed by the clerk. It might Tenn. Ch. 238 ; Haynes v. Hazlerigg, 
 
 be well for the clerk to do so, but 1 Tenn. 242; Rutherford v. Metcalf, 
 
 where an indorsement of the kind is 5 Hayw. 58, 65. 
 
 authorized by the statute, and where 57. Buckley v. Corse, 1 N. J. Eq. 
 a writ is duly signed by the clerk, 504. On a bill for an injunction, and 
 and attested by his seal, the party for leave to make inspection, the bet- 
 on whom service is made is bound to ter practice is to require notice be- 
 take notice of all indorsements that fore granting the order for inspec- 
 the law authorizes to be made tion, enjoining, in the meantime, so 
 thereon; and as the statute provides far as may be necessary to preserve 
 that it shall be sufficient notice of the the status quo. Thomas Iron Co. v. 
 grant of the injunction, where such Allentown Mining Co., 28 W.J. Eq. 77. 
 indorsement is made, the service in 58. Savage v. Parker (Fla. 1907), 
 this case must be held sufficient, with- 43 So. 507. 
 out reference to the question as to 59. N. B. Consol. Stat., p. 398. 
 
 225 
 
 15
 
 §126 
 
 Geanting of Injunctions. 
 
 § 126. Same subject; rule in New York. — In New York the 
 order may be granted, upon or without notice unless the defendant 
 has answered, in which case it can only be granted upon notice or 
 an order to show cause. 60 If made upon notice, either before or 
 after answer, the court or judge may enjoin the defendant, until 
 the hearing and decision of the application. 61 Under the provision 
 of the Code after a defendant has answered a judge who has 
 granted a preliminary injunction cannot on an ex parte applica- 
 tion grant a further order enjoining the defendant from doing 
 acts not covered by the former injunction, although the order 
 recites that it is a supplementary injunction order in addition 
 to the one heretofore granted. 62 In this State an injunction can- 
 not be granted, without notice, against a State officer or board; 63 
 or against the Board of Health of New York city. 64 
 
 60. N. Y. Code Civ. Proc. § 609; 
 Babcock v. Clark, 23 Hun (N. Y.), 
 391. 
 
 See Bloomfield v. Snowden, 2 Paige 
 (N. Y.), 355, wherein it is said by 
 Walworth, Ch. : " It is not the prac- 
 tice to allow an injunction, affecting 
 the rights of a party who has ap- 
 peared, on an ex parte application to 
 the court upon a supplemental bill; 
 but regular notice of the application 
 should be given to such party; if a 
 temporary injunction is necessary to 
 prevent irreparable injury, before reg- 
 ular notice can be given, the court 
 will grant an order to show cause, 
 and allow such temporary injunction 
 in the meantime. In such cases, the 
 temporary injunction falls, of course, 
 if the complainant neglects to serve 
 the papers on the adverse party, and 
 to bring on the application at the 
 time fixed by the court, or as soon 
 thereafter as he can be heard." 
 
 61. Bradley v. Walker, 59 N. Y. 
 Super. 334, where an ex parte in- 
 junction order was sustained on ap- 
 peal. N. Y., § 609, providing that 
 
 an injunction order may be granted 
 upon or without notice, in the dis- 
 cretion of the "court or judge;" and 
 section 627, providing that, where an 
 injunction order is granted on notice, 
 the party enjoined may, " on notice 
 apply for an order vacating it — con- 
 fer on the judge, as a judge and not 
 as a court, authority to hear both 
 parties on an application for an in- 
 junction; and a county judge may 
 give notice of the hearing to the 
 person sought to be enjoined by di- 
 recting him, in a preliminary in- 
 junction, to show cause why it should 
 not be continued. Morris v. City of 
 New York, 7 N. Y. Supp. 943, 17 
 Civ. Pro. R. 407. The requirement of 
 the South Carolina Code as to notice 
 is the same as that of the New York 
 Code. See Meinhard v. Youngblood, 
 37 S. C. 223, 15 S. E. 947. 
 
 62. Rhodes v. Wheeler, 48 App. 
 Div. (N. Y.) 410, 63 N. Y. Supp. 184. 
 
 63. Code Civ. Pro., § 605. See 
 Westheimer v. Schultz, 33 How. Pr. 
 11, note. 
 
 64. L. 1882, ch. 410, S 61». 
 
 226
 
 Granting of Injunctions. §§ 126a, 126b 
 
 § 126a. Same subject; where injunction operates to suspend 
 general business of corporation. — Under a statute or code pro- 
 vision prohibiting the granting of an injunction without' notice- 
 where it operates to suspend the general or ordinary business of a 
 corporation it is decided that an injunction granted ex 'parte which 
 so operates is void. 65 But in New York it has been decided that 
 in an action by a stockholder to enjoin a railroad corporation from 
 intersecting the road of a railroad corporation of which plaintiff 
 is a member, a temporary injunction may be granted, without 
 notice to the corporation about to make the intersection, and that 
 such an injunction is not within the meaning of a code provision 
 that an injunction order " suspending the general and ordinary 
 business of a corporation " can only be granted upon notice. 68 
 And in California it has been decided that a code provision that 
 an injunction " to suspend the general and ordinary business of a 
 corporation " cannot be granted without due notice of the applica- 
 tion for it, to its agent or proper officers, does not apply to an 
 injunction which is partial and particular in its operation. 67 
 
 § 126b. Same subject; statutes as to length of time for which 
 notice must be given. — Where the statute contains provisions as 
 to the length of time for which notice upon application for an 
 inj unci ion should be given there must be a compliance therewith, 
 and if given for a shorter time and defendant does not appear he 
 may treat an injunction thus granted as given without notice. 68 
 So in a case in Washington it was decided that the action of a 
 court in granting an injunction order, without notice to the de- 
 fendant, and without containing any provision limiting it to a 
 day certain, fixed by the court, upon which a hearing could be 
 had and an opportunity afforded the defendant to show cause why 
 
 65. Wilkie v. Rochester & State (N. Y.) 328. 
 
 Line R. Co., 12 Hun (N. Y.), 242. 67. Golden Gate Con. H. M. Co. v. 
 
 See Johnston v. Railroad Co., 58 Superior Court, 65 Cal. 187, 3 Pac. 
 
 Iowa, 537; Lodonvillo v. Cass, 54 628, construing Cal. Code of Proc, § 
 
 Iowa, 115. 531. 
 
 66. Howlett v. New York, West 68. Johnson v. West Side Min. Co., 
 Shore, etc., R. Co., 14 Abb. N. C. 22 Cal. 479. 
 
 227
 
 § 126c Granting of Injunctions. 
 
 it should not thereafter be containuod in force, was without juris- 
 diction and void. 69 And in New York it is decided that instead 
 of the regular notice of motion prescribed by the code, the plaintiff 
 may obtain an order or rule to show cause, returnable at an earlier 
 day, requiring defendant to show cause why an injunction should 
 not be granted. 70 But where power is conferred upon a court to 
 prescribe a shorter notice of motion than specified in the statute, 
 or of dispensing with notice altogether, it shall be confined to 
 exceptional cases and should not be exercised indiscriminately on 
 all occasions. 71 
 
 § 126c. Same subject; waiver of notice. — The want of notice 
 or insufficient service of process is cured by the appearance and 
 plea of the party. 72 So in an early case in New York it was 
 decided that defendants by appearing in the action by counsel, 
 and opposing a motion for an injunction, and reading affidavits 
 in opposition to such motion, and filing the same, with the names 
 of their attorneys indorsed thereon, and by moving that all pro- 
 ceedings be stayed submitted themselves to the jurisdiction of the 
 court, and appeared in the action unconditionally. 71 And in 
 North Carolina it is held that where a motion for an injunction 
 is made in term-time, and defendant is in court, and actually 
 appears by counsel and resists the motion, he will be deemed to 
 have taken actual notice thereof and to have waived formal notice. 74 
 
 69. Larsen v. Winder, 14 Wash. 72. Harris v. Given, 10 Sm. & M. 
 109, 44 Pac. 123, 53 Am. St. Rep. (Miss.) 563; Health Dept. v. Police 
 864. Dept., 41 N. Y. Super. St. 323; 
 
 70. Daly v. Amberg, 126 N. Y. Parker v. Williams, 4 Paige (N. Y.), 
 490, 27 N. E. 1038, where, on Octo- 439; Hyre v. Hoover, 3 W. Va. 11; 
 ber 15, an order to show cause was Meinhard v. Youngblood. 37 S. C. 223, 
 made by the judge, on presentation 15 S. E. 947. 
 
 to him of the moving papers, return- 73. Cooley v. Lawrence, 5 Duer 
 
 able on October 20, and directing that (N. Y.), 605. 
 
 service of the order on October 17 74. Hemphill v. Moore, 104 N. C. 
 
 should be sufficient. 379, 10 S. E. 313. See, also. Spar- 
 
 71. Androvette v. Bowne, 4 Abb. row v. Davidson College, 77 N. C. 35; 
 Prac. (N. Y.) 440. University v. Lassiter, 83 N. C. 38. 
 
 228
 
 Gkanting of Injunctions. § 126d 
 
 § 12 6d. Same subject; qualification of rule; statutes. — Al- 
 though it is a general rule that notice to the adverse party of an 
 application for an injunction is essential, yet the rule is not with- 
 out its exceptions. 75 So an injunction will be granted upon 
 motion and without notice wherever the giving of notice would 
 accelerate the injury complained of. 76 And in cases of pressing 
 necessity where the threatened injury is imminent a preliminary 
 injunction may frequently be allowed without notice. 77 So if it 
 appears from the facts set up in the bill that the rights of the 
 complainant will be unduly prejudiced and the affidavit is positive 
 and not upon information and belief, it is sufficient to authorize 
 granting of an injunction immediately and without notice. 78 And 
 though the operations of a company in the construction of a work 
 of great public convenience should not be suddenly enjoined with- 
 out notice unless in a case of injury and pressing necessity yet, 
 in such cases, if the complainants cannot be otherwise secured in 
 their rights an ex parte order for an injunction will be granted. 79 
 But a considerable delay by complainant, after the filing of his 
 bill in applying for an injunction, is evidence that the emergency 
 is not so pressing as to require the injunction to be issued without 
 
 75. " A preliminary injunction or- does not authorize granting of in- 
 dinarily will not be granted on ex junction without notice. Henderson 
 parte affidavits unless in a clear case. v. Flanagan, 75 111. App. 283- 
 
 This is a salutary rule. It neces- 77. Lewton v. Hauer, 18 Fla. 872. 
 
 saxily admits, however, of certain Facts must be averred in the 
 
 recognized exceptions." Jones v. petition. Chicago City R. Co. v 
 
 Dimes, 130 Fed. 638. Per Bradford, J. Ward, 76 111. App. 536; Henderson 
 
 76. Allen v. Hawley, 6 Fla. 143, v. Flanagan, 75 111. App. 283. 
 
 63 Am. Dec. 198. Must be a showing of emerg- 
 
 It must appear from sworn ency to authorize granting of in- 
 
 statements that rights will be junction without notice. Meier v. Fi 
 
 prejudiced by the giving of notice delity Nat. Bank (Wash. 1906), 86 
 
 before the issuance of the writ. Sub- Pac. 574. 
 
 urban Const. Co. v. Naugle. 70 111. 78. Village of Itasca v. Schroeder, 
 
 App. 384. 182 m - 192 ' 55 N - E - 50 - 
 
 Allegations showing what de- 79. Ross v. Elizabethtown & S. R. 
 
 fendant conld do are essential. Co., 2 N. J. Eq. 422. See, also, Per- 
 
 Beeker v. Defenbaugh. 66 111. App.504. kins v. Collins.. 3 N. J. Eq. 482 ; Cop- 
 Possible departure of defend- ner v. Flemington Min. Co., 3 N. J. 
 
 ant from court's jurisdiction Eq. 467. 
 
 229
 
 § 126(1 
 
 Geanting of Injunctions. 
 
 notice, or without some attempt to serve notice, on a resident 
 defendant. 80 And an affidavit that notice to defendant upon ap- 
 plication for injunction will accelerate the injury apprehended 
 furnishes no reason for dispensing with notice where the injury 
 apprehended is the making of a judicial sale by a sheriff on a day 
 advertised. 81 The Michigan rule is that an injunction should never 
 be granted without due notice, unless the peculiar exigencies of the 
 case require it for manifest reasons, to be shown by affidavit. 81 
 According to federal practice, an injunction will not be granted on 
 motion without notice, but " if there appears to be danger of 
 irreparable injury from delay," within the meaning of section 718 
 of the Revised Statutes of the United States, a restraining order 
 will be granted and served on defendant, with notice of the time 
 and place of hearing, 82 or with a rule to show cause. 83 
 
 80. Swepson v. Call, 13 Fla. 337 : 
 360. 
 
 81. Richardson v. Kittlewell, 45 
 Fla. 551, 33 So. 984. 
 
 81. Toledo R. Co. v. Detroit R. 
 Co., 61 Mich. 9, 27 N. W. 715. If. 
 owing to other engagements of coun- 
 sel or pressure of court business, the 
 motion for injunction cannot be 
 heard according to the notice, it 
 should not be thereafter disposed of, 
 without further notice to defendant, 
 and without giving him an oppor- 
 tunity to be heard. Graham v. Camp- 
 bell, L. R. 7 Ch. D. 490. 
 
 82. Chicago, etc., R. Co. v. Bur- 
 lington etc., R. Co., 34 Fed. 481; 
 Mowrey v. Indianapolis R. Co., 4 
 Biss. 78. After the passage of the 
 Act of Congress of 1793, and prior 
 to the Act of June 1, 1872, a tem- 
 porary injunction or restraining 
 order could not be granted, without 
 notice to the adverse party. But by 
 the seventh section of the Act of 
 Congress of June 1, 1872, now section 
 718, U. S. Rev. Sts., if a bill is filed 
 for an injunction, and a subpoena is- 
 sued, notifying defendant to appear 
 
 on a rule day, and in the meantime 
 there is danger that irreparable in- 
 jury may be committed, the court, in 
 the exercise of a sound discretion, will 
 issue a temporary restraining order 
 without notice. Payne v. Kansas R. 
 Co., 46 Fed. 546. See, also, Yueng- 
 ling v. Johnson, 1 Hughes, 607 ; Mow- 
 rey v. Indianapolis, etc., R. Co., 4 
 Biss. 78. It seems that where an ex 
 parte application for a preliminary 
 injunction is made, without notice to 
 the other party, an injunction will 
 not be granted, unless it is shown, by 
 affidavits or otherwise, that irrepar- 
 able mischief will happen before hear- 
 ing can be had on notice given. Cen- 
 tral Trust Co. v. Wabash R. Co., 25 
 Fed. 1, 2. The plaintiff must not 
 fix the time of hearing so far in the 
 future as to embarass the defendant 
 and if he does, the defendant may 
 come in and have the hearing take 
 place within reasonable time. Wal- 
 worth v. Supervisors, 5 Biss. 133. 
 
 83. Ex parte Huidkoper, 55 Fed. 
 709; Ex parte Chamberlain, 55 Fed. 
 704. 
 
 230
 
 Granting of Injunctions. , 
 
 §§ 127, 12S 
 
 § 127. Notice; perpetual injunctions.— A perpetual injunction 
 which is decreed without notice to defendant and without an 
 opportunity to him to be heard is invaild. 84 But a decree awarding 
 a perpetual injunction cannot be reversed merely because a pre- 
 liminary injunction was granted in the suit without notice to 
 defendant, if the evidence justifies such a decree. 85 It follows 
 that it is erroneous to decree a perpetual injunction to stay proceed- 
 ings in a suit against third persons, not parties or privies to the suit 
 in which the decree is made. 86 
 
 § 128. Application on what made.— The application for a pre- 
 liminary or temporary injunction may be made, according to the 
 varying practice in the different States, on a verified complaint 
 alone 87 by a motion for a temporary injunction which can be based 
 only upon a complaint and cannot be granted upon affidavits, 88 or on 
 a verified bill ; 89 or more generally on a complaint or bill supported 
 by affidavits ; 90 or on bill and answer ; 91 or on bill and exhibits and 
 
 84. State v. Jacksonville, etc., R. 
 Co., 15 Fla. 201. 
 
 85. Brown v. Leuhrs, 79 111. 575. 
 
 86. Waller v. Harris, 7 Paige, 167. 
 
 87. Manufacturers' Bank v. Folk, 
 60 N. Y. St. Rep. 802; Barnard v. 
 Shirley. 135 ind. 363, 34 N. E. 600, 
 35 N. E. 117. 
 
 88. South Shore T. Co. v. Town 
 of Brookhaven, 53 Misc. R. (N. Y.), 
 392, 102 IN. Y. Supp. 1074; citing 
 Huntington v. Cortland Home Teleph. 
 Co., 62 App. Div. 517; Woodburn v. 
 Hyatt, 34 App. Div. 246; Sanders v. 
 Ader, 26 App. Div. 176; Hudson Val- 
 ley R. Co. v. O'Connor, 95 App. 
 Div. 6. 
 
 89. In Griffith v. Hilliard, 64 Vt. 
 643, a temporary injunction to en- 
 join a trespass in cutting timber on 
 the orator's land was granted on the 
 bill alone, and the answer having 
 controverted his title the temporary 
 injunction was continued while the 
 title was being tried. See, also, 
 
 Youngblood v. Schamp, 15 N. J. Eq. 
 42; Langmaid v. Reed (Mass.), 34 
 N. E. 593, where the bill waa 
 amended; Wagoner v. Wagoner, 76 
 Md. 311, 25 Atl. 338, where the bill 
 was filed on March 30, 1885, and 
 the injunction writ issued the next 
 day. Wagner v. Rock Island (Ind.), 
 34 N. E. 545. In Rhode Island the 
 practice is not to grant an ex parte 
 injunction on the bill alone but to re- 
 quire a supporting affidavit of com- 
 plainant or some other person. Har- 
 rington v. Harrington, 15 R. I. 341, 
 5 Atl. 502. 
 
 The facts stated in a bill verified 
 by affidavit are to be taken as true. 
 Ex parte Pile, 9 Ark. 336; Marion v. 
 Johnson, 22 La. Ann. 512. 
 
 90. Grainger v. Smyth, 53 N. Y. 
 St. Rep. 259. In Daly v. Amberg, 126 
 N. Y. 490, 495, O'Brien, J., said: 
 " The presentation of the summons, 
 complaint, affidavit and undertaking 
 to the judge conferred on him, un- 
 
 231
 
 §128 
 
 Granting of Injunctions. 
 
 answer; if the answer is properly before the court the defendant 
 is entitled to have it considered, but if the bill fails to present a 
 case for an injunction it is not material that the answer should be 
 considered ; 92 or on bill, answer and cross-bill. 93 In Maryland it i* 
 said that the only mode of obtaining an injunction is by a bill; 9 * 
 but by the Laws of 1886, chap. 441, it is enacted that at any stage 
 of a cause, or matter, the court may on its own motion or " the 
 motion or petition " of a party, issue an injunction. Or the ap- 
 plication is made on petition in some States, as in South Carolina, 
 Iowa, and Texas. 95 Where the right to an injunction is based on 
 
 der the statute, jurisdiction to make 
 the order, and it was valid from the 
 moment when he signed and delivered 
 it." In Murdock v. Walker, 152 Pa. 
 St. 595, 25 Atl. 492, the preliminary 
 injunction was granted on the plain- 
 tiff's bill and supporting affidavits 
 and the defendants' counter affida- 
 vits; and so in Connelly M'f'g Co. v. 
 Wattles, 49 N. J. Eq. 92, 23 Atl. 
 123. In Fritz v. Erie City Pass. R. 
 Co., 155 Pa. St. 472, 26 Atl. 653, 
 there was an injunction bill to en- 
 join the railway company from using 
 electricity for motive power and the 
 motion for a preliminary injunction 
 was made on the bill and ailidavits 
 and the motion was refused because 
 the question was considered too grave 
 in its character and too serious to 
 defendant to be decided before final 
 hearing. In Lehigh Coal & Nav. Co. 
 v. Miller, 155 Pa. St. 542, 26 Atl. 
 660, the motion for the preliminary 
 injunction to enjoin the collection of 
 taxes on the coal pockets, on the 
 ground that they were an indispen- 
 sable part of the canal and railroad 
 in the transfer of coal, was granted 
 on the bill and two supporting affi- 
 davits filed when the injunction was 
 granted, opposed by two affidavits of 
 defendant. The injunction was sus- 
 
 tained. A motion for an injunction 
 after appearance and upon notice, 
 may be made and resisted upon such 
 affidavits as either party may be 
 able to produce. The injunction can 
 only be granted on the case made by 
 the bill, but that case may be estab- 
 lished by affidavits. Blunt v. Hay, 4 
 Sandf. Ch. 362. 
 
 Affidavits are essential in ad- 
 dition to a verified complaint. 
 Hecker v. New York, 28 How. Prac. 
 (N. Y.) 211; Roome v. Webb, 3 How. 
 Prac. (N. Y.) 327. 
 
 91. Baltimore Belt R. Co. v. Lee, 
 75 Aid. 596, 23 Atl. 901. In Char- 
 tiers Block Coal Co. v. Mellon, 152 
 Pa. St. 286, 25 Atl. 597, the prelimi- 
 nary injunction was applied for on 
 bill, answer, and supporting affida- 
 vits on both sides, and was partly 
 granted and partly refused. And see 
 AlcCulla v. Beadleston, 17 R. I. 20, 
 20 Atl. 11. 
 
 92. O'Brien v. Baltimore Belt R. 
 Co., 74 Md. 363, 22 Atl. 141; Lynn 
 v. Mt. Savage Iron Co., 34 Md. 624. J 
 
 93. Wilmington Min. Co. v. Allen. 
 95 111. 288, 295. 
 
 94. Wagoner v. Wagoner, 26 Atl. 
 284, citing Binney's Case, 2 Bland 
 Ch. 104. 
 
 95. Junction City School Incor 
 
 232
 
 Granting of Injunctions. 
 
 §129 
 
 a written instrument to which complainant has ready access, it or a 
 copy ought to be filed with the bill. 96 
 
 § 129. Same subject; federal practice. — In the federal courts 
 on filing a bill for a perpetual injunction a rule to show cause 
 may be served on defendant requiring him to show cause why a 
 preliminary injunction should not issue. 97 The application may 
 also be made on petition and affidavits, and ordinarily a rule to 
 show cause. 98 An injunction in the Federal courts is sometimes 
 granted on the bill and defendant's answer and on defendant's 
 cross-bill and plaintiff's answer to that. 99 Affidavits to corroborate 
 the bill have always been regarded with favor in the federal courts 
 but have not been required as indispensable to the granting of an 
 injunction. 1 
 
 poration v. Trustees of School Dist. 
 No. 6, 81 Tex. 148, 16 S. W. 742; 
 Kelley v. Briggs, 58 Iowa, 332, 12 
 N. W. 299. 
 
 96. Mayor, etc., of the City of 
 Baltimore v. Keyser, 72 Aid. 106, 115, 
 19 Atl. 706. 
 
 97. In Richmond, etc., R. Co. v. 
 Blake, 49 Fed. 904, where the bill 
 prayed the court to perpetually en- 
 join the collection of taxes, upon the 
 filing of a bill a rule to show cause 
 was issued against the defendants re- 
 quiring them to show cause on the 
 first day of the next term and in the 
 meantime they were restrained. 
 
 98. Ex parte Huidekoper, 55 Fed. 
 709. 
 
 In Ex parte Chamberlain, 55 Fed. 
 704, there was a petition for an in- 
 junction to restrain a sheriff from 
 detaining property which he had 
 seized while in the possession of a 
 receiver and which had been illegally 
 assessed for taxation, — per Curiam: 
 " Upon hearing the petition a rule to 
 show cause was issued and served on 
 
 the sheriff with the usual restraining 
 order." 
 
 In Ex parte Tyler, 13 S. C. 791, a 
 preliminary injunction was granted 
 on the bill and answer; subsequently 
 a restraining order was granted on 
 petition and an order to show cause 
 was required to be served on defend- 
 ant why another injunction should 
 not be granted; subsequently the pe- 
 titioner filed a supplemental petition 
 supported by numerous affidavits and 
 the injunction was finally granted 
 after a hearing on the "petitions, 
 rules to show cause, return thereto, 
 and affidavits." 
 
 99. Marble Company v. Ripley, 10 
 Wall. 339, 19 L. Ed. 955. 
 
 1. Schermerhorn v. L'Espenasse 
 (1790), 2 Dall. 360, where an injunc- 
 tion on a bill alone was sustained; 
 but a power of attorney was before 
 the court which was regarded as af- 
 fording stronger evidence of the 
 transfer in issue than would have 
 been afforded by the affidavit of the 
 interested party. 
 
 233
 
 §130 
 
 Granting of Injunctions. 
 
 § 130. Motions for temporary injunction. — In Maine it is ex- 
 pressly provided by statute that " an injunction may be granted 
 pending the suit in proper cases upon motion." 2 In Michigan the 
 application for an injunction pending the suit is by motion. 5 And 
 this is the general rule as to temporary injunctions pending a suit 
 and particularly where the injunction is auxiliary merely to pre- 
 serve the existing status and prevent the defendant from disposing 
 of property during the suit so as to defeat palintiff's judgment. 4 
 A preliminary injunction may be applied for in infringement suits 
 on motion and affidavits. 5 A temporary injunction can be obtained 
 only in an action instituted by summons and complaint, and, 
 except when authorized by express statutory provisions, cannot be 
 founded on petition. 6 In New York where an injunction is 
 granted by order, the application for such order is by motion, 7 for 
 the application for an order in the course of an action is defined to 
 be a motion. 8 Under the former chancery practice also the appli- 
 
 2. L. 1881, ch. 68, § 22. 
 
 3. Glidden v. Norvell, 44 Mich. 
 202, 6 N. W. 195. 
 
 4. Chatterton v. Kreitler. 2 Abb. 
 N. C. 453. See Safety Electric Co. 
 v. Creamer, 47 N. Y. St. Rep. 214; 
 Kennedy v. Kennedy, 24 N. Y. Supp. 
 424; Phillips v. Pullen, 45 N. J. Eq. 
 157, 16 Atl. 915. 
 
 5. Williams v. McNeely, 56 Fed. 
 265; New York Belting Co. v. Gutta 
 Percha Co., 56 Fed. 264; White Den- 
 tal Co. v. Johnson, 56 Fed. 262 ; Ogle 
 v. Edge, 4 Wash. C. C. 584, per 
 Washington, J. : "I take the rule 
 to be in cases of injunctions in pat- 
 ent cases, that where the bill states 
 a clear right to the thing patented, 
 which together with the alleged in- 
 fringement is verified by affidavit, if 
 he has been in possession of it by 
 having used or sold it, in part or in 
 the whole, the court will grant an 
 injunction and continue it till the 
 hearing or further order without 
 
 sending the plaintiff to law to try 
 his right. But if there appear to be 
 a reasonable doubt as to the plain- 
 tiff's right, or to the validity of the 
 patent, the court will require the 
 plaintiff to try his title at law, some- 
 times accompanied with an order to 
 expedite the trial, and will permit 
 him to return for an account in case 
 the trial at law should be in his 
 favor." 
 
 6. Manneck Mfg. Co. v. Manneck, 
 23 Alb. L. J. 216, per Van Vorst, J.: 
 " The Supreme Court has no juris- 
 diction to issue an injunction . . . 
 upon a verified petition, no action 
 having been commenced. As a gen- 
 eral rule none of the powers apper- 
 taining to the original jurisdiction 
 could be called into operation until 
 a bill had been filed." 
 
 7. Code Civ. Pro., §§ 602, 609. 
 
 8. Code Civ. Pro., § 768. " A mo- 
 tion in general relates to some inci- 
 dental question collateral to the main 
 
 234:'
 
 Granting of Injunctions. 
 
 §131 
 
 cation on the prayer of the bill for an injunction pendente lite was 
 by motion. 9 In New York if an application for an injunction 
 and for an order of arrest or for an attachment are made in the 
 same action the court may require the applicant to select between 
 them. 10 An application in New York to obtain or vacate an in- 
 junction order must be decided by the court or judge within twenty 
 days after it is submitted for decision. 11 
 
 § 131. New York injunctions formerly on petition. — The pro- 
 vision of the New York Revised Statutes which prohibited the 
 granting of a preliminary injunction until the bill was filed (2 
 E. S. 179, § 71), and which, of course has been superseded by the 
 Code of Procedure of 1848, as amended, related only to cases where 
 the court obtained jurisdiction of the cause by a bill. There was 
 then a variety of cases where the court of chancery issued an 
 injunction to enforce its orders and decrees without any bill filed, 
 and on a petition which served as a substitute for the bill. 12 And 
 
 object of the action. Rensselaer, etc., 
 R. Co. v. Davis, 55 N. Y. 145. A 
 motion is not a remedy in the sense 
 of the Code, but it is based upon 
 some remedy and is always connected 
 with and dependent upon the princi- 
 pal remedy. It is to furnish relief in 
 the progress of the action or pro- 
 ceeding in which it is made." Per 
 Church, C. J., in Matter of Jetter, 
 78 N. Y. 601. The injunction order 
 is the decision of the motion for the 
 injunction. Bentley v. Jones, 4 How. 
 Pr. 337. 
 
 9. New York v. Mapes, 6 Johns. 
 Ch. 46. 
 
 10. Code Civ. Pro., § 719. 
 
 11. Code Civ. Pro., § 719. 
 
 12. In the Matter of Hemiup, 2 
 Paige, 316, where on the appearance 
 of the parties entitled to a decedent's 
 estate a temporary injunction was 
 granted to Btay proceedings at law 
 until the question as to the fairness 
 
 of the surrogate's sale was deter- 
 mined by the court. The chancellor 
 said : " Whenever this court has 
 power to make an order in conse- 
 quence of having jurisdiction over 
 the subject matter of the suit or pro- 
 ceeding, and which a person is bound 
 to obey in consequence of his being 
 either actually or constructively a 
 party to the suit, it may enforce obe- 
 dience to such order by the process 
 of injunction, under the seal of the 
 court, which is the usual way of giv- 
 ing notice of its orders and decrees 
 to those who are not actually or con- 
 structively present in court. Casa- 
 major v. Strode, 1 Sim. & Stu. 381. 
 This practice was similar to that of 
 the English chancellor in bankruptcy 
 who used to enforce obedience to his 
 orders, on the part of actual or con- 
 structive parties, by process of in- 
 junction under the great seal. Ex 
 parte Hardenbergh, 1 Rose, 204; Ex 
 
 235
 
 §132 
 
 Granting of Injunctions. 
 
 one advantage of thus granting an injunction on a petition in the 
 original suit was the saving the expense of a new bill. 13 And 
 ordinarily a party to a suit will not receive injunctive relief in a 
 new and independent action which he might obtain by petition or 
 motion in the original cause." An injunction will not be issued 
 to stay proceedings under a bill or decree in chancery, whether the 
 application is made by parties, privies, or strangers to the original 
 suit. The proper mode is to apply by petition in the original suit 
 for such an order as the case of the applicant will entitle him to. 15 
 
 § 132. Special prayer for injunction. — Under the New York 
 chancery practice in order to obtain a preliminary injunction to 
 restrain defendant pending the suit, it had to be specially prayed 
 for in the prayer of the bill, though perhaps a final injunction 
 might be obtained on a general prayer for relief. 16 And in a recent 
 case in Florida it is decided that a temporary injunction or re- 
 straining order should not be granted unless the same is specifically 
 
 parte Pease, 1 Rose, 232; Ex parte 
 Figes, 1 Glyn & J. 122; Ex parte 
 Gould, 1 Glyn & J. 231. 
 
 13. Far low v. Wilson, 11 Price, 
 95; Beauchamp v. Marquis of Hunt- 
 ley, Jacob, 546; Eden, Injunctions, 
 25. 
 
 14. Faison v. Mcllwaine, 72 N. 
 C. 312; Jarman v. Saunders, 64 N. 
 C. 367 ; Mason v. Miles, 63 N. C. 564. 
 
 15. Smith v. American L. Ins. & 
 Trust Co. (1840), Clarke's Ch. 307. 
 
 16. Walker v. Devereaux, 4 Paige, 
 229, 248. See, also, Thompson v. 
 Maxwell, 16 Fla. 773. In Wilmington 
 Min. Co. v. Allen, 95 111. 288, the 
 court said: " It is objected that the 
 bill was for a temporary injunction 
 only and that it was error to make 
 the injunction perpetual, there being 
 no such relief prayed. The prayer 
 was for an injunction pending the 
 proceedings and until the further or- 
 
 der of the court. If the court in de- 
 creeing the injunction was satisfied 
 there should never be any further or- 
 der to the contrary of the injunction 
 the court might, we think, not im- 
 properly under the prayer of the bill, 
 make the injunction perpetual. If 
 there was reason for an injunction in 
 the case, there was the same reason 
 for its being perpetual. We regard 
 this objection as relating to mere 
 matter of form." In Wood v. Bea- 
 dell, 3 Sim. 273, an injunction was 
 asked for in the general prayer of 
 the bill but no preliminary injunc- 
 tion was asked for in the prayer for 
 process and was therefore refused. 
 The complainant was, however, per- 
 mitted to renew his application on 
 an amended bill. See, also, Savory 
 v. Dyer, Amb. 70; Daville v. Pea- 
 cock, Barnard, Ch. 25. 
 
 236
 
 Granting of Injunctions. § 133 
 
 prayed for in. the bill. 17 The rule is substantially the same in 
 courts of New Jersey equity, but the omission to pray specially 
 for the injunction may be cured by amendment. 18 Where the only 
 relief sought is injunctive the bill must specifically pray for an in- 
 junction or it will be dismissed on demurrer. 19 The Georgia rule 
 is that a perpetual injunction cannot be decreed unless it is prayed 
 for in the bill. 20 
 
 § 133. Temporary injunction pending an action for a per- 
 manent. — In New York, in a case where the right to an injunction 
 depends upon the nature of the action, the plaintiff may have a 
 temporary injunction during the pendency of the action, where it 
 appears from the complaint that the plaintiff demands and is 
 entitled to, as his final relief, a permanent injunction against 
 defendant, and that the commission or continuance of the act com- 
 plained of, during the action, would be injurious to plaintiff. 21 
 But in such a case if the complaint shows no cause of action for 
 final relief by injunction it is error of law to grant a temporary 
 injunction; 22 and the cause of action as set forth in the complaint 
 for an injunction cannot be enlarged by the accompanying affi- 
 
 17. Savage v. Parker (Fla. 1907), process of injunction, the process 
 44 So. 507. cannot be granted. Union Bank v. 
 
 18. African M. E. Church v. Con- Kerr, 2 Md. Ch. 460." See, also, Wil- 
 over, 27 N. J. Eq. 157. If an injunc- lett v. Woodhams, 1 III. App. 411. 
 tion is prayed for in the bill, but is It is expressly provided in Maine 
 omitted in the prayer for process, an that " no preliminary injunction 
 injunction ought not to issue with- shall be granted to either party un- 
 out an amendment of the bill. Bai- less his pleadings contain an applica- 
 ley v. Stiles, 3 N. J. Eq. 245. tion therefor; but an injunction may 
 
 19. Lewiston M'f'g Co. v. Franklin be granted pending the suit in proper 
 Co., 54 Me. 402, per Appleton, C. J. : cases upon motion and hearing." L. 
 "An injunction will not ordinarily 1881, ch. 68, § 22. 
 
 be granted under a prayer for gen- 20. Jefferson v. Hamilton, 69 Ga. 
 
 eral relief. It must be specifically 401. 
 
 prayed for. Story, Eq. PL, § 41. 21. Code Civ. Pro., § 603. 
 
 The prayer for an injunction must 22. McHenry v. Jewett, 90 N. Y. 
 
 not only be in the prayer for relief 58; Selchow v. Baker, 93 N. Y. 59. 
 
 but in the prayer for process. When Perhaps the rule before the Code was 
 
 a bill prays for relief by way of in- less strict than since. Hartt v. Har- 
 
 j unction but does not pray for the vey, 32 Barb. 55, 68. 
 
 237
 
 § 134 Granting of Injunctions. 
 
 davits; 23 and to entitle plaintiff to a temporary injunction the com- 
 plaint must show that he is entitled to it during the pendency of the 
 action. 24 So, too, in the federal courts a preliminary injunction 
 will not be granted, where, on the same allegations and proofs at 
 the final hearing, a final injunction would not be granted. 25 The 
 rule that a motion for an injunction would not be granted, unless 
 an injunction was demanded in the bill, existed in England ; 26 but 
 was subject to a few exceptions. 27 An applicant for a temporary 
 injunction under the New York Code, must move on affidavit, as a 
 verified complaint is not enough ; M unless, at all events, the allega- 
 tions of the complaint are positive and not on information and 
 belief. 29 A preliminary injunction cannot be sustained by facts 
 occurring, as for example, defendant's insolvency, after the service 
 of the complaint. 30 
 
 § 134. Temporary injunction for extrinsic cause. — The New 
 York Code authorizes the granting of a temporary injunction in an 
 action where it appears by affidavit that the defendant is about to 
 do an act in violation of plaintiff's rights respecting the subject of 
 the action and tending to render the judgment ineffectual, or is 
 about to remove or dispose of his property with intent to defraud 
 the plaintiff. 31 In order that an act should be restrained under 
 the section just alluded to, it must be violative of plaintiff's rights 
 respecting the " subject of the action," and the general property of 
 defendant may often not be the subject of the action ; thus it would 
 
 23. DeLacy v. Adams, 52 N. Y. St. was asked for by the bill. See, also, 
 Rep. 509. Barlow v. Gains, 8 Beav. 329; Wright 
 
 24. Cushing v. Ruslander, 49 Hun, v. Atkyns, 1 Ves. & B. 313. 
 
 19, 1 N. Y. Supp. 505. 28. Chatterton v. Kreitler, 2 Abb. 
 
 25. International Tooth Crown N. C. 453. 
 
 Co. v. Mills, 22 Fed. 659. 29. Cushing v. Ruslander, 49 Hun, 
 
 26. Wood v. Beadell, 3 Simons, 19, 23, 1 N. Y. S. 505, and cases 
 273. cited. See, also, Stow v. Chapin, 21 
 
 27. Blomfield v. Eyre, 8 Beav. 250, N. Y. St. Rep. 38; Rome, etc., R. Co. 
 259. In Goodman v. Kine, 8 Beav. v. Rochester, 46 Hun, 149. 
 
 379, a mortgagor in possession was 30. American Water Works v. 
 
 restrained by injunction from com- Venner, 45 N. Y. St. Rep. 441. 
 mitting waste though no injunction 31. Code Civ. Pro., § 604. 
 
 238
 
 Granting of Injunctions. 
 
 §134 
 
 be a startling doctrine to hold that a plaintiff, on commencing an 
 action on an account against a trader, could procure an injunction 
 to restrain him from selling goods pending the action. 32 So, too, 
 under section 3388 of the Iowa Code, which is quite similar to 
 section 604 of the New York Code, a temporary injunction will 
 not be granted unless the act complained of is violative of plaintiff's 
 rights respecting the " subject of the action," or tends to render 
 ineffectual any judgment he may recover in the pending action. 33 
 
 32. Campbell v. Ernest, 64 Hun, 
 188, 19 N. Y. S. 123; Glen MTg Co. 
 v. Hall, 61 N. Y. 226, 233. 
 
 33. Dubuque & S. C. Ry. Co. v. 
 Cedar Falls & M. Ry. Co., 76 Iowa, 
 702, 39 N. W. 691, Reed. J.: " Com- 
 ing then to the question before us, 
 we have to say that in our opinion 
 the original petition does not make a 
 case for the allowance or continuance 
 of an injunction. The injunction 
 prayed for and allowed is a tempo- 
 rary writ restraining defendant 
 merely from instituting any suit at 
 law for the collection of the rent dur- 
 ing the pendency of the equity ac- 
 tion. The conditions upon which a 
 temporary injunction may be al- 
 lowed are prescribed by statute. Sec- 
 tion 3388 of the Code is as follows: 
 
 ' When it appears by the petition 
 therefor that the plaintiff is entitled 
 to the relief demanded, and such re- 
 lief or any part thereof consists in 
 restraining the commission or con- 
 tinuance of some act, which would 
 produce great or irreparable injury 
 to the plaintiff, or when during liti- 
 gation it appears that defendant is 
 about to do some act in violation of 
 plaintiff's rights respecting the sub- 
 ject of the action, and tending to 
 render the judgment ineffectual, a 
 temporary injunction may be granted 
 to restrain such act.' Under this 
 
 provision some act must be done or 
 threatened which would produce 
 great or irreparable injury to the 
 plaintiff, and is in violation of his 
 right respecting the subject of the ac- 
 tion, or which would tend to render 
 ineffectual any judgment he might 
 recover in the proceedings. In other 
 words it must be shown that the writ 
 is essential to the preservation or 
 protection of some right of the plain- 
 tiff with reference to the subject of 
 the action. Now the relief demanded 
 by plaintiff is the rescission or can- 
 cellation of the contract, upon the 
 ground of the fraudulent purposes 
 of its officers when they entered into 
 it, and that the steps necessary to 
 bind the corporation have never been 
 taken. To entitle plaintiff to that 
 relief it must establish not only the 
 fraud alleged in the inception of the 
 contract, but that it has surrendered 
 or offered to surrender the property; 
 for it appears by the averments of 
 the petition that it has been in pos- 
 session since the termination of the 
 lease to the Illinois Central Com- 
 pany. But it is averred that when 
 plaintiff discovered the fraud, which 
 was the termination of the last- 
 named lease, it declared its election 
 to terminate the contract and ten- 
 dered back the property. For the 
 purposes of the case then it is con- 
 
 239
 
 §135 
 
 Granting of Injunctions. 
 
 § 135. Same subject. — Where an injunction is not the ultimate 
 purpose of the suit and the temporary injunction is for a ground 
 extrinsic to the cause of action, it is not essential that the injunc- 
 tion be asked for in the complaint ; 34 it may be granted on affidavits 
 without a complaint. 35 The injunctions granted under section 604 
 of the New York Code are for the most part to prevent a threatened 
 fraudulent alienation by the defendant of his property during the 
 
 ceded that by the averments it shows 
 itself entitled to that relief. But the 
 facts relied upon are available in de- 
 fense of an action at law on the con- 
 tract for the enforcement of the rent. 
 It would be a good defense in such 
 an action that the contract was void- 
 able, because of fraud in its incep- 
 tion, and that the one against whom 
 it was sought to be enforced had 
 upon a discovery of the fraud sought 
 to rescind by ofFering to return what 
 he had received under it. The insti- 
 tution of a suit at law then would 
 not produce any irreparable injury 
 to plaintiff; nor would it be a vio- 
 lation of his right relating to the 
 subject of the action, nor render in- 
 effectual the judgment he may re- 
 cover in it. The case upon its facts 
 is within the holding of the court in 
 Smith v. Short, 11 Iowa, 523. It is 
 not governed by Stewart v. John- 
 ston, 44 Iowa, 435; Brigham v. 
 White, 44 Iowa, 677, and the other 
 cases in this court which hold that 
 when fraud is the gravaman of the 
 petition, the injunction will not be 
 dissolved upon a mere denial of the 
 allegations of fraud, but will be con- 
 tinued until the final determination 
 of the issue. In each of those cases 
 the continuance of the injunction 
 was necessary for the preservation of 
 the rights claimed by the plaintiff 
 
 in the subject of the action." 
 
 34. Safety Electric, etc., Co. v. 
 Creamer, 47 N. Y. St. Rep. 214. The 
 court: "It is entirely clear, under 
 section 603 of the Code, that where 
 an injunction is the ultimate pur- 
 pose of the action, and is the relief 
 to be awarded by final decree, the 
 complaint must not only set forth 
 the facts but the demand for an in- 
 junction must also be made therein. 
 But an examination of the complaint 
 in this action will disclose that that 
 is not the nature of the action at 
 all. This bill is filed simply for an 
 accounting. The plaintiff merely 
 asks for an adjudication of the mat- 
 ters in dispute between it and the 
 defendant with reference to the de- 
 fendant's right, in the first place, to 
 royalties at all, and in the second 
 place, if the right exists as to the 
 amount. . . . But as in the mean- 
 time the enforcement of that provi- 
 sion of the contract which would 
 cause the forfeiture would destroy 
 all the plaintiff's rights, the injunc- 
 tion is asked for by reason of that 
 circumstance, which is really extrin- 
 sic to the plaintiff's cause of action, 
 although the plaintiff sets forth in 
 the complaint the facts which neces- 
 sitate the taking of the account." 
 
 35. Continental Store Co. v. Clark, 
 7 N. Y. Civ. Pro. 183. 
 
 240
 
 Granting of Injunctions. 
 
 §136 
 
 action. 36 Under the New York Code an injunction can be granted 
 only in an action and never on petition. 37 
 
 § 136. Affidavits — An affidavit for an injunction to the effect 
 that the contents of the petition are true as the affiant believes is 
 sufficient. 38 Under the provision of the New York Code that a 
 temporary injunction may be granted where it appears by the 
 affidavit of the plaintiff, or any other person, that sufficient grounds 
 exist therefor, 39 it is well settled that an affidavit on mere informa- 
 tion and belief, and without the supporting affidavits of the in- 
 formants, is not sufficient. 40 And this is the general rule. 41 A 
 preliminary injunction should not be granted on a bill sworn to on 
 information and belief, and unaccompanied by affidavit of the 
 facts from the person from whom the information and belief were 
 derived ; and an admission by defendant in his answer or affidavit 
 
 36. Peet v. Hatcher, 13 Civ. Pro. 
 449; Jerome Co. v. Loeb, 59 How. 
 Pr. 508; Malcolm v. Miller, 6 How. 
 Pr. 456; Vermilyea v. Vermilyea, 14 
 How. Pr. 470. 
 
 37. First Nat. Bank v. Navarro, 17 
 N. Y. Supp. 900, construing Code 
 Civ. Pro., §§ 603, 604. 
 
 38. Kelley v. Briggs, 58 Iowa, 332, 
 12 N. VV. 299. 
 
 A general affidavit is suffi- 
 cient. — Thrall v. Williamsport, 4 
 Pa. Super. Ct. 165. 
 
 39. Code Civ. Pro., § 607. 
 
 40. Campbell v. Ernest, 64 Hun, 
 188, 19 N. Y. S. 123. 
 
 Where the injunction does not 
 depend on the nature of the action 
 an affidavit is sufficient. Woodburn 
 v. Hyatt, 34 App. Div. (N. Y.) 246, 
 54 N. Y. Supp. 597. 
 
 Allegations on information 
 and belief of an intent to make 
 a corrupt appointment not stat- 
 ing the sources of information and 
 referring to the persons to be ap- 
 
 pointed only as " certain persons," 
 are too indefinite to sustain an in- 
 junction. Roosevelt v. Mayor, 1 
 How. N. S. 205. 
 
 In Michigan, a preliminary in- 
 junction should not be granted where 
 the bill is not sworn to as true to 
 affiant's personal knowledge. Manis- 
 tique Lumbering Co. v. Lovejoy, 55 
 Mich. 189, 20 N. W. 899. The verifi- 
 cation may be amended when the 
 motion is heard. Glidden v. Norvell, 
 44 Mich. 202. 
 
 In New Jersey, in bills for in- 
 junction charging fraud and praying 
 a discovery, or in any case, where, 
 in the nature of things, positive proof 
 cannot be expected, the additional 
 verification may be dispensed with, 
 and the injunction may issue on the 
 affidavit of complainant founded on 
 belief alone. Youngblood v. Schamp, 
 15 N. J. Eq. 42. 
 
 41. Kane v. Montreal Tel. Co., 20 
 Lower Can. Jur. 120. 
 
 241 
 
 10
 
 § 137 
 
 Granting; ok Injunctions. 
 
 of a material fact alleged in the hill does not cure the defect, when 
 thi re are other material facts unadmitted and unverified. 42 Where 
 the affidavit upon which an injunction order is granted is not made 
 by the plaintiff but by his attorney and states no reason why the 
 plaintiff did not make tho affidavit, this constitutes a fatal defect.* 3 
 
 § 137. Conflicting affidavits, etc.— When the affidavits on which 
 a temporary injunction is asked are denied, under oath, in such 
 manner as to leave their truth in serious doubt, tin- injunction 
 must be denied, unless it clearly appears that to grant it will do 
 defendant no serious harm, while its refusal will deprive com- 
 plainant of all relief should he finally succeed in his cause, or sub- 
 ject him to some other peculiar hardship. 44 A preliminary injunc- 
 tion will be refused where the affidavits are so conflicting, and the 
 defendant's are so much more circumstantial and conclusive than 
 the plaintiff's, that the court does not find any well-grounded appre- 
 hension of immediate injury to plaintiff's interests and property. 45 
 
 42. Ruge v. Apalachicola Oyotor 
 Co., 25 Fla. 656, 6 So. 489; Ballard 
 v. Eckman, 20 Fla. 661. See, also, 
 Alspaugh v. Adams, 80 Ga. 345, 5 
 S. E. 496, where it was held that 
 though the verification of the bill 
 by the affidavits of counsel was not 
 sufficient, they not swearing posi- 
 tively, the affidavit of others pro- 
 duced at the hearing supplied the 
 lack. See, also, Campbell v. Morri- 
 son, 7 Paige, 157; Bank of Orleans 
 v. Skinner, 9 Paige, 305; Livingston 
 v. New York Bank, 26 Barb. 304. 
 Where the respondent concedes facts 
 which if proved at the final hearing 
 would require a decree in favor of 
 the petitioners, it is within the 
 power of the presiding judge, in the 
 exercise of his discretion, to order a 
 preliminary injunction. Carleton v. 
 Rugg, 149 Mass. 551, 22 N. E. 55. 
 
 43. Terry v. Green, 53 Misc. R. 
 (N. Y.) 10, 103 N. Y. Supp. 1014, 
 
 citing Talbert v. Storum, 21 N. Y. 
 Supp. 719; Pach v. Geoff roy. 19 N. Y. 
 Supp. S83; Clark v. Sullivan, 8 N. Y. 
 Supp. 565. 
 
 44. Connelly M'f'g Co. v. Wattles, 
 49 N. J. Eq. 92, 23 Atl. 123; an in- 
 junction on the ground of fraud 
 should not be granted where the al- 
 legations are on information and be- 
 lief, and the sources of information 
 not given, and there are two affida- 
 vits denying the fraud. Perry v. 
 Volkening, 44 N. Y. Super. Ct. 332. 
 
 45. Where the averments of the 
 bill are met by a full, explicit and 
 circumstantial denial in the answer, 
 the general rule directs that a pre- 
 liminary injunction shall be denied. 
 West Jersey R. Co. v. Cape May, etc., 
 R. Co., 34 N. j. Eq. 164. Even 
 though the bill disclose clear ground 
 of equitable relief. Van Houten v. 
 First Reformed Church, 17 N. J. Eq. 
 127. Rend v. Venture Oil Co., 48 Fed. 
 
 242
 
 Grafting of Injunctions. 
 
 § 138 
 
 The courts will not take judicial notice of the opinions of experts 
 not verified by affidavit. 46 
 
 § 138. Substitute for affidavits. — On petition for an injunction, 
 where there is no answer to the merits after the demurrer to the 
 petition is overruled, it is proper to grant the injunction without 
 requiring proof of the allegations of the petition, 47 for the effect of 
 the demurrer is to admit, as well the plaintiff's allegations made 
 on information and belief, as those which are positive. 48 An in- 
 
 248. where plaintiff in his affidavits al- 
 leged several serious dangers which 
 would result to property and life 
 from the drilling of oil wells through 
 coal mines; and defendant in his af- 
 fidavits showed that from the 50,000 
 cases of such drilling no disaster to 
 person or property had ever resulted, 
 the injunction to restrain the drilling 
 was refused. A preliminary injunc- 
 tion should not issue in a suit for 
 infringement of a patent where upon 
 the issue of priority of invention the 
 evidence is merely oath against oath. 
 Mack v. Spencer, 44 Fed. 346. It is 
 the general rule that when the equity 
 of the complainant is disproved by 
 the answer and affidavits, a prelim- 
 inary injunction is not proper. Cit- 
 izens' Coach to. v. Camden Horse R. 
 Co., 29 N. J. Eq. 299; New Jersey 
 Zinc Co. v. Franklin Iron Co., 29 N, 
 J. Eq. 422, 431. And generally a 
 preliminary injunction will not be 
 granted where the right of the com- 
 plainant depends upon an unsettled 
 question of law. Citizens' Coach Co. 
 v. Camden Horse R. Co.. 29 N. J. Eq. 
 299. A preliminary injunction to re- 
 strain a carrier from disobeying an 
 order of the Interstate Commerce 
 Commission will not be granted in 
 proceedings under section 16, 24 St. 
 at Large, p. 384, as amended, when 
 
 the answer denies the facts on which 
 the order was based. Interstate 
 Commerce Commission v. Lehigh Val. 
 R. Co., 49 Fed. 177. But see Mc- 
 Enroe v. Decker, 58 How. Pr. 250, 
 construing § 630 of N. Y. Code of 
 Procedure. 
 
 46. Finger v. City of Kingston, 29 
 N. Y. St. Rep. 702. 
 
 47. Junction City School Incorpo- 
 ration v. Trustees of School Dist. No. 
 6, 81 Tex. 148, 16 o. VV. 742. 
 
 48. In Gibson v. Gibson, 46 Wis. 
 449, 462, 1 N. W. 147. the objection 
 to the preliminary injunction was 
 that many of the allegations of the 
 complaint upon which a permanent 
 injunction was prayed for were not 
 stated positively but on information 
 and belief, the court said: "The 
 i.riswers to this objection are: first, 
 that the defendant by demurring to 
 the complaint, has admitted not only 
 the allegations that are stated posi- 
 tively, but also those which are stated 
 on information and belief; and sec- 
 ond, that the injunction wae issued 
 after notice of the motion for the 
 same served upon defendant. This 
 court has decided that in such a case 
 if the defendant does not, by his own 
 affidavit or answer or other proof, 
 deny the allegations of the complaint, 
 all the allegations in the complaint, 
 
 243
 
 § L39 Granting of Injunctions. 
 
 definite and imperfect complaint or bill may be cured by the de- 
 fendant's admissions. 49 The parties may stipulate that other evi- 
 dence, for example, testimony taken by a commissioner in con- 
 d( innation proceedings, shall have the force of affidavits on an 
 implication for injunction. 50 Where the bill for injunction waives 
 the respondent's oath, an answer under oath denying all the equities 
 of the bill, can, under the amendment to equity rule 41, be used 
 at the hearing with the probative force of an affidavit alone, and 
 whether the injunction should issue must be determined on the 
 whole evidence submitted. 61 In New York, an injunction may 
 now be granted on a verified complaint, and in such a case plain- 
 tiff's right to injunctive relief depends upon the establishment of 
 the facts therein pleaded. 62 If a bill for an injunction be filed, the 
 defendant may put in an answer and use it on the hearing of the 
 application as an affidavit. 63 
 
 § 139. Additional evidence; secondary evidence. — It is discre- 
 tionary with the judge sitting at chambers, upon an application 
 for injunction, to re-open the case for more testimony, upon dis- 
 covery of additional witnesses by one of the parties after argument, 
 and while holding up the matter for decision. 64 When either party 
 
 as well those stated on information 61. United States v. Working- 
 
 and belief as those positively averred, men, etc., 54 Fed. 994. 
 
 must be taken to be true for the pur- 62. Manufacturers' Bank v. Folk, 
 
 pose of sustaining the injunction. 50 N. Y. St. Rep. 802. 
 
 Dinehart v. Town of LaFayette. 19 63. Hardenburgh v. Farmers, etc., 
 
 Wis. 679." Bank, 3 N. J. Eq. 68. 
 
 49. Where, in an action to obtain 64. Electric R. Co. v. Savannah R. 
 a perpetual injunction, the plaintiff Co., 87 Ga. 261, 13 S. E. 512. In 
 appears to be acting in good faith. analogy with the rule laid down in 
 and sets out a prima fade case, and Warren v. Bunch, 80 Ga. 124. 7 S. E. 
 the defendant confesses and avoids 270; and see Huff v. Markham, 70 
 the allegations of the complaint, and Ga. 284; Boyce v. Burchard, 21 Ga. 
 answers only on information and be- 74. When an injunction is applied 
 lief, the injunction should be con- for. the facts need not be proved by 
 tinued to the hearing. Turner v. the affidavit of the complainant. 
 Cuthrell. 94 i\. C. 239. When the material facts are not 
 
 50. Stahl v. Pennsylvania Co., 155 within his knowledge, they should be 
 Pa. St. 309, 26 Atl. 437. verified by the oath or affirmation of 
 
 244
 
 Granting of Injunctions. § 140 
 
 on motion for a preliminary injunction desires to take the testi- 
 mony of an unwilling witness, application should be made to the 
 court and notice given to the other side. The motion should be in 
 writing, and should set forth the name or names of the witnesses 
 and briefly the purpose for which they are to be called. The court 
 should then, if the application is a proper one, appoint an examiner 
 to take such testimony, due notice to be given to the other side, who 
 should have the right of cross-examination. 65 On the hearing of 
 an injunction the question of receiving secondary evidence is some- 
 what discretionary with the presiding judge. He need not require 
 absolutely that all means of discovering the primary evidence be 
 exhausted. 66 
 
 § 140. Granting injunction before bill filed. — In England in- 
 terim injunctions have sometimes been granted in very urgent 
 cases before bill filed. 67 It is said that the practice of granting 
 injunctions before the filing of the bill has been quite common in 
 the counties of Maryland, though there was a rule prohibiting such 
 a practice in the Maryland chancery; the omission so to file is 
 
 some person who has a knowledge of Malins. V. C, gave leave to serve de- 
 
 the facts, or duly verified copies of pri- fendant with notice of motion for the 
 
 vate instruments or of records may next morning, at the sitting of the 
 
 be annexed to the bill when such is court, and granted an interim injunc- 
 
 the appropriate mode of proof. tion to restrain the receipt of the 
 
 Youngblood v. Schamp, 15 N. J. Eq. purchase money, on the plaintiff giv- 
 
 42. ing. in addition to the usual under- 
 
 65. Hammerschlag M'f'g Co. v. taking an undertaking 1o file the bill 
 Judd, 26 Fed. 292. and affidavit in the course of the day. 
 
 66. Davis v. Covington & M. R. In Carr v. Morice, L. R. 16 Eq. 125, 
 Co., 77 Ga. 322, 2 S. E. 555. an application for an injunction was 
 
 67. Thornloe v. Skoines, L. R. 16 made on a holiday to the vice chan- 
 Eq. 126. In this case a motion was cellor, at his residence, to restrain a 
 made, ex parte, for an interim in- transaction at the Stock Exchange, 
 junction, to restrain a sale. A draft and the bill could not be filed because 
 bill had been prepared and its state- the court offices were closed. The 
 ments verified by affidavit; but it was chancellor granted the injunction, re- 
 stated that the sale was expected to taining the copy bill, and had it filed 
 be completed within an hour, and on the next court day as if filed on 
 that there had not been time to pre- the day when the injunction was 
 pare a copy of the bill for filing. granted. 
 
 245
 
 § 141 Granting of Injunctions. 
 
 deemed a mere irregularity for which the order ought not to be 
 reversed. 68 The same practice of granting injunctions before bill 
 filed has, to some extent, been adopted in Vermont," but not in 
 Wisconsin; and under the code of that State an injunction order 
 cannot be granted in a suit before complaint, and on mere affi- 
 davits ; 70 nor can the court, on sustaining a demurrer to the com- 
 plaint, grant leave to amend the complaint, and continue the 
 injunction in the meantime, for in such case the injunction has 
 nothing to rest upon but the affidavits. 71 The former New York 
 rule was that an injunction should not be granted upon a bill which 
 is bad, on demurrer, even in point of form. 72 Where, however, an 
 order to amend an injunction bill was obtained before appearance, 
 it was held in New York chancery that the injunction continued 
 in force, though the order giving leave to amend was silent 
 as to the continuance of the injunction. 73 The general rule is that 
 injunctions can issue only on bill filed, and with a proper prayer 
 therefor; it was no doubt originally so in England, for it was one 
 of the articles of impeachment against Cardinal Wolsey, as chan- 
 cellor, that he had granted injunctions without bill put in. 74 
 
 § 141. Same subject. — Under the New York Code, section 608, 
 the injunction order may be granted to accompany the summons, 
 or at any time after the commencement of the action and before 
 final judgment. In December, 1892, it was held by a closely 
 divided Court) of Appeals that said section 608 was not 
 limited to injunction order? granted under section 603, authorizing 
 them, where it appears from the complaint that the plaintiff de- 
 mands and is entitled to judgment, restraining the commission of 
 some act injurious to him, during the pendency of the action, but 
 applies as well to orders granted under section 604, authorizing 
 them, " where it appears, by affidavit, that the defendant, during 
 the pendency of the action, is doing, or threatens, or is about to 
 
 68. Davis v. Reed, 14 Md. 152. 165. And see Mowbray v. Lawrence, 
 
 69. Peek v. Crane, 25 Vt. 146. 14 Abb. Pr. 160. 
 
 70. Vliet v. Sherwood, 37 Wis. 72. Rose v. Rose, 11 Paige, 166. 
 165 73. Seldon v. Vermilya, 4 Sandf. 
 
 71. Vliet v. Sherwood, 37 Wis. Ch. 573. 
 
 74. 4 Coke's Inst. 92. 
 
 246
 
 Granting of Injunctions. § 141 
 
 do, an act in violation of plaintiff's rights, respecting the subject 
 of the action ;" the majority of the court were of the opinion that 
 the words, " during the pendency of the action," have the same 
 meaning in both provisions, relating to the time when the threat- 
 ened injury is likely to take place, and not to the time when the 
 order may be granted ; and that though the complaint does not ask 
 for an injunction, a temporary injunction order may be granted 
 under said section 604 of the Code, before commencement of the 
 action, to become operative upon service of the summons and order, 
 which may be made at the same time. The minority of the court, 
 including the chief justice, were of the opinion that, under said 
 section 604 of the Code, an injunction order was authorized to be 
 granted only for acts done or threatened during the pendency of 
 the action, and that therefore the court had no jurisdiction, under 
 that section, to grant an order before the commencement of the 
 action. 75 Under the Kansas statute also it is held that the injunc- 
 tion becomes operative only when the summons is issued. 76 In 
 Colorado the injunction order may be granted at or before the 
 time of filing the complaint and issuing the summons, or at any 
 time afterwards before judgment, upon affidavits. The complaint 
 in the one case, and the affidavits in the other, shall show that 
 
 75. People ex rel. Cauffman v. Van tion, defeat the very object of the 
 
 Buren, 136 N. Y. 252, 32 N. E. 775. suit. The section which declares that 
 
 |In this case the majority iqf the the court is deemed to have acquired 
 
 court followed the rule adopted in jurisdiction in a civil action from the 
 
 Leffingwell v. Chave, 5 Bosw. 703, 10 time of the allowance of a provisional 
 
 Abb. Pr. 472, where Woodruff, J., remedy (§ 139), is in harmony with 
 
 said: "It imports that the injunc- this construction and sustains it." As 
 
 tion may be obtained, so that it shall to the time of granting an injunction, 
 
 operate at the time when, and so the South Carolina rule is substan- 
 
 soon as, the action is commenced, and tially the same as that of New York, 
 
 not alone after it is commenced. This Meinhard v. Youngblood, 37 S. C. 
 
 accords with good sense. It meets a 223, 15 S. E. 947. See, also, as to 
 
 very large class of cases in which it the time and place of the exercise of 
 
 is of vital importance to a plaintiff this jurisdiction, the late case of 
 
 to enjoin th e defendant at the very Hamilton v. Icard, 112 N. C. 589, 17 
 
 instant he is apprised that an action S. E. 519. 
 
 is commenced, and in which the de- 76. State v. Rush County Com'rs. 
 
 fendant would, but for such injunc- 35 Kan. 150. 
 
 247
 
 142 
 
 Granting of Injunctions. 
 
 satisfactory grounds exist therefor. 77 The application mu9t be 
 made before judgment, and the court has no power to grant or 
 revive a temporary injunction after final judgment in the action. 78 
 
 § 142. Same subject; Alabama rule. — Though it is the usual 
 and better practice to present the bill or complaint to the judge at 
 the time of applying for the injunction, yet the fact that the I ill 
 was not so presented to the judge and was not filed, and that the 
 summons was not issued until after the injunction was ordered, i8 
 a mere irregularity which does not in itself invalidate the injunc- 
 tion, and which the defendant will be held to have waived if he 
 moves to set the injunction aside as irregular before answering 
 the bill. 79 Under the North Carolina Code, providing that an in- 
 
 77. Col. Code of Pro., § 120; and 
 it is further provided, by § 132, that 
 it shall not be necessary, to the grant- 
 ing of an injunction, that the com- 
 plaint be first filed in the court, but 
 the order of the judge or court may 
 direct the injunction to issue upon 
 the filing of the complaint. 
 
 78. Spears v. Mathews, 66 N. Y. 
 127; Fellows v. Heermans, 13 Abb. 
 N. S. 1. 
 
 79. Ex parte Sayre, 95 Ala. 288, 
 11 So. 378, per Coleman. J.: "The 
 point that a restraining order, be- 
 fore the suit is instituted, is without 
 authority and void, was made in 
 Heyman v. Landers, 12 Cal. 107. This 
 point was held to be untenable, not- 
 withstanding a statute expressly 
 provided that an injunction may be 
 granted at the time of issuing the 
 summons. Field, J., says: 'The order 
 could only take effect upon the filing 
 of the complaint and the bond or 
 undertaking required, and it was un- 
 necessary to delay the application to 
 the judge until after the complaint 
 had been filed. When a restraining 
 order or an injunction is sought 
 
 upon the complaint, it is the usual 
 practice to present the complaint, in 
 advance of the filing, to the judge, 
 and obtain the order on the allow- 
 ance of the writ; anu with this prac- 
 tice the statute does not conflict. The 
 order or writ can then be issued with 
 the summons.' We have no statute 
 regulating, expressly or impliedly, 
 the time when an injunction may be 
 granted. Mr. High observes: ' The 
 fact that the bill was not filed until 
 after the injunction was ordered is 
 not sufficient ground for a reversal of 
 the order, such omission being at the 
 most but a mere irregularity, which 
 does not affect the merits of the 
 cause.' High, Inj., § 1583. And in 
 Davis v. Reed, 14 Md. 152, it was 
 held the fact that the bill was not 
 filed until after the injunction was 
 ordered is at most but a mere irreg- 
 ularity, whicn cannot operate a re- 
 versal of the order granting it. It is 
 said : ' It is not uncommon, in some 
 of the counties, to proceed in this 
 way. . . . Where a practice has 
 become inveterate it is better to ad- 
 here to it, until changed by a pro- 
 
 248
 
 Granting of Injunctions. 
 
 143 
 
 junction may be granted at the time of commencing the action or 
 at any time afterwards before judgment, an injunction may issue 
 in an action before sendee of the summons. 80 
 
 § 143. Granting injunction on bill filed; chancery practice. — 
 Under the former Maryland chancery practice the filing of a bill 
 was the only proper foundation for an injunction; though while 
 Maryland was a province an injunction could be obtained on an 
 affidavit stating the facts of the case, before the filing of the bill. 81 
 
 spective rule, than to incur the risk 
 of doing injustice to a party who 
 may have followed it, and especially 
 when the opposite side has not been 
 injured by the alleged irregularity." 
 
 80. Fleming v. Patterson. 99 N. 
 C. 404, 6 S. E. 396. 
 
 81. Salmon v. Clagett, 3 Bland, 
 Ch. 125, 161, per Bland, Ch.: "One 
 of the articles of impeachment 
 against Cardinal Wolsey was, that he, 
 as chancellor, had granted injunc- 
 tions without any bill being put in. 
 4 Inst. 92. And Lord Bacon in reply 
 to the king's instructions, pledged 
 himself not to grant injunctions on 
 the mere statement of the bill, but 
 only on matter confessed by the de- 
 fendant's answer, unless called for by 
 pressing circumstances. After which 
 it was declared, by a statute which i3 
 in force here mat no subpoena or any 
 other process, except injunctions to 
 stay waste or proceedings at law, 
 should be granted before a bill was 
 filed. 4 Ann, ch. 16, § 22. But, dur- 
 ing the provisional government, it 
 appears to have been the practice to 
 grant an injunction to stay proceed- 
 ing at law, before the filing of the 
 bill, upon a petition briefly stating 
 the circumstances, and that too as it 
 would seem, without any affidavit or 
 other evidence of the truth of the 
 matters so stated. In which case the 
 
 petition prayed an injunction until 
 the matter could be heard on a bill 
 to be filed, setting forth the facts 
 more at large; and the bill, after- 
 wards filed, prayed a contiuance of 
 the injunction as granted. This 
 course of proceeding was, no doubt, 
 adopted on the ground of analogy to 
 the English mode of granting an in- 
 junction in some cases for a similar 
 purpose, on an affidavit stating the 
 facts of the case before the filing of 
 the bill. Eden, Inj. 36, 231. But 1 
 have met with no instance of this 
 kind since the establishment of the 
 republic. According to the present 
 course of proceeding in this court, 
 there is but one mode of obtaining an 
 original injunction; and that is by a 
 bill. To lay a proper foundation for 
 an injunction 2 the bill should set 
 forth a case of plain right, and a 
 probable danger that the right would 
 be defeated without the interposition 
 of the court; Anonymous, 1 Vern. 
 120; The State of Georgia v. Braisl- 
 ford, 2 Dall. 405; or it should ap- 
 pear that the question was important 
 and doubtful; Mestaer v. Gillespie, 
 11 Ves. 636; and the truth of the 
 facts should be verified by an affi- 
 davit which is usually made by the 
 plaintiff himself, or by one of the 
 plaintiffs if there be more than one. 
 That, however, is not essential; for I 
 
 249
 
 § 144 Granting of Injunctions. 
 
 And on the filing of a bill for an injunction, the defendant might 
 instantly put in his answer so as thereby to prevent the granting 
 of an injunction as prayed by the bill. 82 So where the right to a 
 preliminary injunction was based on the fact that the complainant 
 was the owner of the property which it was sought to reach in an 
 action, and of which the defendant had the legal title, the court 
 refused to grant the injunction, where such ownership was denied 
 by the facts alleged in the answer and by affidavits. 83 But where 
 threats to remove certain property were denied by the sworn an- 
 Bwer it was held that affidavits by other witnesses as to the making 
 of the threats alleged which affidavits were corroborated by other 
 evidence were sufficient to overcome such denial and to justify 
 the granting of a preliminary injunction. 84 And where facts con- 
 stituting title are alleged by the complainant an answer is not 
 sufficient which merely denies title as alleged but states no facts 
 showing title in defendant. 80 
 
 § 144. Granting injunction in spite of answer. — An answer 
 to an injunction bill will be of little avail if instead of denying the 
 facts on which the complainant relies, it merely controverts con- 
 clusions of law from those facts; or is bald and general in its 
 denials where it ought to inform the court by being specific and 
 explanatory; and is without oath instead of being verified; and 
 where the defendant's affidavits produced in support of the answer 
 unattended with the documentary evidence relating to the matters 
 in issue, and are not in response to any of the allegations or charges 
 of the bill. A denial is futile in the face of the facts, and an 
 answer which seeks to conceal rather than disclose the facts, must 
 
 have granted an injunction when the to trust the bill for the truth of its 
 
 bill was sworn to by an agent of the statements. Schermerhorn v. L'Es- 
 
 plaintiff who was privy to the trans- penasse, 2 Dall. 364." 
 
 action, the plaintiff being a foreigner 82. Hall v. McPherson, 3 Bland, 
 
 and resident abroad. Dunlop v. Har- Ch. (Md.) 529. 
 
 rison, 28 September. 1826. Indeed, 83. Guild v. Meyer, 56 N. J. Eq. 
 
 an affidavit of any one does not ap- 193, 38 Atl. 959. 
 
 pear to be indispensably necessary, if 84. Ashby v. Asnby (N. J. Eq.). 
 
 documentary or any other kind of 40 Atl. 118. 
 
 evidence be produced, sufficient to 85. Mobile & M. R. Co. v. Alabama 
 
 cause belief, and to induce the court M. R. Co., 123 Ala. 145, 26 So. 324. 
 
 250
 
 Granting of Injunctions. 
 
 §144 
 
 fail of its purpose in a court of equity, and will offer but little 
 resistance to the injunction application. 86 But where the petition 
 
 86. Hazlehurst v. Sea Isle, etc., R. 
 Co. (N. J.). 25 Atl. 201, the court: 
 "The defendants McGuigan, O'Neill, 
 Becker, and Gorman have joined in 
 an answer in which they admit the 
 prosecution of the several liens of 
 the complainants in the manner above 
 set out, but say, ' We are advised in 
 law, and therefore deny, that the 
 mortgages are subsequent to either of 
 the lien claims filed by the complain- 
 ants;' but do not deny the facts 
 upon which the complainants rely for 
 priority, nor set out any facts which 
 tend to show why they are not prior 
 to the mortgages, except that the 
 mortgage of McGuigan was given for 
 consideration money. They aver that 
 the hotel company never had, nor 
 now has, any estate which could be 
 subjected to the lien of the complain- 
 ants, without setting out what estate 
 it had. They admit that the con- 
 veyance from McGuigan to Williams 
 was made after the building was sub- 
 stantially all built. They admit the 
 suit by Petty & Co., and that they 
 did not make McGuigan, O'Neill, and 
 Becker, mortgagees, defendants in 
 their suit; and admit that judgment 
 was entered upon their suit as set out 
 in the bill, and that Gorham pur- 
 chased the claim from Petty for an 
 adequate consideration, and that 
 Petty & Co. have no further interest 
 in it. They deny that Gorman pur- 
 chased the claim for or on behalf of 
 the Sea Isle City Hotel Company, or 
 with their funds or securities, or that 
 the hotel company in any way, man- 
 ner or form, directly or indirectly, is 
 interested in the claim or its pro- 
 ceedings thereon. The answer does 
 
 not state for whom, or with whose 
 money, Gorman did purchase the 
 Petty lien claim or any of the other 
 claims, but denies that he acted in 
 that purchase for the mortgagees 
 named; admits the advertisement of 
 the lots for sale subject to the mort- 
 gages. The defendants deny that 
 Petty's claim is being used by the 
 defendant Gorman or anybody else for 
 the purpose of defeating the com- 
 plainants, or any of them, or prevent- 
 ing their receiving any benefit to 
 which they are or may be entitled as 
 against the said building in any way. 
 But they do not state why the prop- 
 erty was ordered to be sold under the 
 Petty judgment rather than under 
 the Gould judgment. This answer is 
 without oath. An affidavit was pre- 
 sented by Mr. Gorman, in which he 
 swears that upon the ' trial of the 
 cause wherein the said complainants 
 were plaintiffs, and the said hotel 
 company defendants, the trial judge 
 found the said hotel company to be 
 indebted to the plaintiffs in a certain 
 sum, and that the liens did bind only 
 the buildings, and it being repre- 
 sented to the said trial judge that the 
 complainants would appeal, and dur- 
 ing the pendency of said appeal, and 
 before determination, injustice would 
 be done by allowing a sale to be had, 
 said judge made an order staying 
 proceedings for the sale of the said 
 hotel until the plaintiffs might have 
 opportunity to have their appeal 
 heard.' In this affidavit Mr. Gor- 
 man further says 'that it is untrue 
 and false that he is making use of 
 said Petty claim for the purpose of 
 depriving the complainants, or any 
 
 251
 
 § L45 
 
 GRANTING Ol I.\ .11 'NOTIONS. 
 
 for a perpetual injunction is demurrable it is decided that an in- 
 junction will not be granted without evidence even though the 
 petition is verified provided any answer is made thereto which does 
 not operate to cure the defects of such petition. 87 
 
 § 145. Verification of bill. — Upon an ex parte application for 
 an injunction if there is any material allegation upon which the 
 right to the injunction rests which is not within the personal 
 knowledge of the complainant or of the agent or attorney who 
 verifies the bill, an additional affidavit, of the person from whom 
 the information is derived, should be required verifying the truth 
 of the information thus given. 88 Thus, a bill for injunction was 
 held not to be verified at all where the only verification was an 
 affidavit of counsel to the effect that what he knew of his own 
 knowledge was true, and what he had heard he believed to be true, 
 but it was not stated that he knew anything of his own knowledge ; 
 and, as the answer did not admit or verify the material facts 
 
 of them, or preventing their receiv- 
 ing any benefit to which they are or 
 may be entitled.' This is all the ex- 
 planation he makes, and all the rea- 
 son he gives for advertising the 
 property under the Petty claim in- 
 stead of under the Gould claim. With 
 regard to the allegation of the answer 
 and affidavit that the complainants 
 agreed to the discharge of the order 
 made in the Circuit Court staying 
 the sale, upon condition that the de- 
 fendants should give security for the 
 payment of the complainants' claim 
 in full, in case the court of errors 
 and appeals should reverse the ac- 
 tion of the circuit judge, two observa- 
 tions may be made: First, it is new 
 matter, not in response to any of the 
 allegations or charges of the bill; the 
 answer and affidavit were produced 
 and filed and were first seen by coun- 
 sel at the hearing; under these cir- 
 
 cumstances, the well-settled rule for- 
 bids me to rely upon it without giv- 
 ing the complainants opportunity to 
 answer it; and, second, that it is 
 supported only by the affidavit of the 
 defendant Gorman, without produc 
 ing the record of the proceedings in 
 the Circuit Court, or any copy 
 thereof, or the agreement, or any copy 
 thereof, or of the bond filed as secur- 
 ity. Such affidavit does not amount 
 to proof, and must be laid out of 
 view. ' 
 
 87. Jones v. Johnson, 57 Kan. 629, 
 47 Pac. 523. 
 
 88. Bank of Orleans v. Skinner, 9 
 Paige, 305; Campbell v. Morrison, 7 
 Paige, 157. If an injunction bill has 
 been actually sworn to, the injunc- 
 tion will not be dismissed because 
 the master omitted to sign the jurat. 
 Capner v. Flemington Mining Co., 3 
 N. J. Eq. 467. 
 
 252
 
 Granting of Injunctions. § 145 
 
 alleged in the bill the injunction was properly refused. 8 * The case 
 of a creditor's bill where an injunction is sought for against the 
 judgment debtor only is an exception to the general rule that all 
 the material facts must be sworn to positively in order to obtain an 
 ex parte preliminary injunction; as in such case the judgment 
 and execution are matters of record, and to which the defendant 
 was a party, the complainant need not swear positively to the 
 records referred to in the bill. 90 The bill may be verified by an 
 attorney or agent who is familiar with the facts. 91 So in a recent 
 case in Florida it has been decided that a bill for an injunction 
 is properly verified by the solicitor for complainant where his 
 affidavit is positive and direct to all the allegations of the bill. 92 
 Where a copy of the petition is attached as an exhibit, forming 
 part thereof, to an application for an injunction, which is verified 
 by an affidavit that the application and the exhibit are true, the 
 petition itself need not be verified. 93 In Rhode Island a bill for 
 an injunction is not demurrable for want of a verifying affidavit; 
 there the practice is not to grant an injunction ex parte on a bill 
 alone, but to require proof by the complainant's affidavit or other- 
 wise making a prima facie case for an injunction. 94 
 
 89. Landes v. Globe MTg Co., 73 N. J. Eq. 42. 
 
 Ga. 176; Hone v. Moody, 59 Ga. 731. 90. Sizer v. Miller, 9 Paige, 605; 
 
 If the complainant is absent Hemersley v. WyckofF, 8 Paige, 72. 
 
 or his affidavit, for any reason, can- 91. Mayor v. Finney, 54 Ga. 317; 
 
 not be procured, it may be sworn to Long v. Kasebeer, 28 Kan. 226. It 
 
 by his attorney or by any person ac- was so held as to the verification of 
 
 quainted with the facts. Youngblood a bill in aid of a creditor's suit which 
 
 v. Schamp, 15 N. J. Eq. 42. In this was made by the attorney who had 
 
 case the attorney swore to the affi- conducted the proceedings at law. 
 
 davit on the ground that complain- Sizer v. Miller, 9 Paige, 605. He 
 
 ant's residence was so remote that must swear positively to the material 
 
 the delay in getting his affidavit facts. Landes v. Globe M'f'g Co., 73 
 
 might defeat the whole object of the Ga. 176. 
 
 bill — the affidavit was held not suffi- 92. Seaboard Air Line Ry. v. 
 
 cient. Southern Inv. Co. (Fla. 1907), 44 So. 
 
 Where the bill is filed by a 351. 
 
 corporation, the officer or other per- 93. State ex rel. Spurgeon v. 
 
 son who has the principal personal Loomis, 46 Kan. 107, 26 Pac. 472. 
 
 knowledge of the facts should swear 94. Harrington v. Harrington, 15 
 
 to them. Youngblood v. Schamp, 15 R. I. 341, 5 Atl. 502. 
 
 253
 
 §§ .146, 147 Granting of Injunctions. 
 
 § 146. Verification of bill in New Jersey. — Under the New 
 Jersey Chancery Act, which provides that no injunction shall be 
 granted to stay a suit at law before verdict or judgment, " unless 
 the chancellor be satisfied by affidavit at the foot or on the back 
 of the bill or by other means," that the allegations thereof be 
 true; 95 a verification which is insufficient because made on informa- 
 tion and belief may be cured by auxiliary evidence of the material 
 allegations of the bill presented to the chancellor, or by a duly 
 verified supplemental bill which does not change the cause of 
 action. 96 And an injunction bill may be amended even after 
 motion to dissolve, and if when so amended and duly verified, it 
 shows sufficient cause for continuing the injunction which is not 
 overcome by the defendant, it will be continued, and a motion for 
 dissolution on the ground of defects in the original bill will be 
 denied where those defects have been remedied by an amended bill 
 which does not change the cause of action. 97 Under rule 123 of 
 New Jersey chancery requiring defendant to rely solely on his 
 own affidavit, in case the complainant in an injunction bill relies 
 only on his affidavit, a married woman cannot avail herself of her 
 husband's affidavit to support her answer, though he acted as her 
 agent in the matter in controversy. 98 
 
 § 147. Same subject; Maryland rule. — If an injunction is 
 granted on the bill alone, the Maryland rule is that the bill must 
 be verified by the affidavit of plaintiff, or of one of them if there 
 are several, or if the plaintiff be non-resident by the affidavit of a 
 third person, who must show how he happens to know the facts set 
 forth in the bill, or the bill must be verified by some other testi- 
 mony sufficient to satisfy the chancellor that the bill is trustworthy 
 in its allegations. 99 On the filing of a bill for an injunction the 
 
 95. N. J. Rev. St., § 84. Eq. 293; Sweatt v. Faville, 23 Iowa, 
 
 96. Conover v. Ruckman, 34 N. J. 321 ; Crawford v. Paine, 19 Iowa, 172. 
 Eq. 293; Christie v. Griffing, 9 C. E. 98. Bell v. Romaine, 30 N. J. Eq. 
 Gr. 76; Orr v. Littlefield, 1 Woodb. 24; Gariss v. Gariss, 2 Beas. 320. 
 
 4, M. 13. 99. Jones v. Magill, 1 Bland, Md. 
 
 97. Conover v. Ruckman, 34 N. J. 177. 
 
 254
 
 Gbanting of Injunctions. § 148 
 
 defendant, in order to prevent the issuing of the writ, may in- 
 stantly put in his answer, which the court is bound to consider and 
 give proper effect to; 1 and in such a case no appeal lies from an 
 order refusing the injunction. 2 
 
 § 148. Verification in Georgia and South Carolina. — The re- 
 fusal by a judge to hear and determine a petition for injunction 
 before the same has been verified as required by law is not error 
 under a statute providing " that no petition needs to be verified, 
 unless it seeks an extraordinary equitable relief or remedy, in 
 which case it must be." 3 The evident purpose of such a statute 
 is to provide for a verification of the petition before action thereon 
 by the judge, and proof of its allegations at or during the hearing 
 thereon is not sufficient, but it may be that some other mode of 
 verification than by affidavit would suffice. 4 Though the better 
 practice is to require proper verification before any action is taken 
 on the petition, yet where there is a verification which is imperfect, 
 as where it is only on information and belief, the deficiency may 
 be supplied by affidavits at the hearing in case the presiding judge 
 shall think proper, in the exercise of his discretion, to proceed on 
 the defective verification. 5 It is clearly not error to deny an 
 injunction where the only evidence in support of the petition is an 
 affidavit by petitioners that " the facts contained in the written 
 bill of complaint are true so far as they depend on our knowledge 
 
 1. Krone v. Krone, 27 Md. 77; made. It may be that other forms 
 Bell v. Purvis, 15 Md. 22; Hall v. of proof could be attached to the pe- 
 McPherson. 3 Bland, Ch. (Md.) 532. tition or accompany and be exhibited 
 
 2. Rogers v. Thompson, cited 27 with it, which would authorize the 
 Md. 81; Steigerwald v. Winans, 17 judge, if he saw proper, to proceed, 
 Md. 65, 66. and he may in his discretion at the 
 
 3. Boykin v. Epstein, 87 Ga. 25, hearing allow the petition to be veri- 
 13 S. E. 15. ^ed; but he cannot, in the face of the 
 
 4. Boykin v. Epstein, 87 Ga. 25, statute, be compelled to allow the 
 13 S. E. 15, Lumpkin, J.: "We do hearing to take place without any 
 not mean to hold that the verification verification." 
 
 required by law can be made only by 5. Martin v. Burgwyn, 88 Ga. 78, 
 
 an affidavit attached to the petition, 13 S. E. 958; Alspaugh v. Adams, 80 
 
 or that the judge may not, at the Ga. 345, 5 S. E. 496; Shannon v. 
 
 hearing, allow the verification to be Fecheimer, 76 Ga. 86. 
 
 255
 
 §149 
 
 Granting of Injunctions. 
 
 and belief, and, so far as they depend on the knowledge and in- 
 formation of others, we believe them to be true." In South 
 Carolina it has been decided that an injunction may be granted on 
 an unverified complaint where it is accompanied by affidavits which 
 sustain its material allegations. 7 
 
 § 149. Verification ; Federal practice. — In the Federal courts 
 when a bill for an injunction is to be used as evidence on a motion 
 for a preliminary injunction it must be verified ; but if not to be so 
 used no imperative rule requires it to be verified. 8 If the de- 
 fendant appears on the hearing of the injunction application, the 
 complainant must then satisfy the court of the truth of the allega- 
 tions of the bill by a direct verification to its truth or by other 
 testimony. But a direct admission by defendant of the facts 
 alleged in the bill, or his virtual admission of them by demurring 
 merely on account of want of law in the bill, or defendant's waiver, 
 may render complainant's oath to the bill unnecessary. 9 The old 
 
 6. Bailey v. Bailey. 90 Ga. 435. 16 
 S. E. 90. See, also, Bigbee v. Satter- 
 field, 105 Ga. 841, 32 S. E. 139. 
 
 7. Meinhard v. Youngblood, 37 S. 
 C. 223, 15 S. E. 947. 
 
 8. Black v. Allen Company, 42 Fed. 
 618; Hughes v. Northern Pac. R. Co., 
 18 Fed. 106, 110. 
 
 9. Woodworth v. Edwards, 3 Wood. 
 & M. 120, where Woodbury, J., said: 
 " The first ground assigned for this 
 demurrer is the want of an oath to 
 the bill, or any evidence in its sup- 
 port. But this is a ground more 
 properly to be taken at a hearing on 
 the merits against proceeding further, 
 till such oath or such evidence is put 
 in. It is a matter in pais and af- 
 fecting the trial of the facts rather 
 than a defect in the bill itself. Of 
 course at the tri r 1. or hearing, 
 whether a case is made out or not, if 
 the facts which the bill alleges are 
 denied by tne respondents, the plain- 
 
 tiffs must furnish evidence of them 
 before succeeding. Generally they 
 must do it by their oath to the truth 
 of the bill, and always by other testi- 
 mony prima facie satisfactory, be- 
 fore the respondents are obliged to 
 rebut it by evidence on their part. 
 But sometimes this need not be done 
 by the complainant where the re- 
 spondents do not appear and are de- 
 faulted; or after an appearance and 
 order, do not comply with it. and the 
 allegations in the bill are taken pro 
 confesso; or if after such an appear- 
 ance the respondent virtually admits 
 the truth of the facts by demurring 
 merely on account of the want of law 
 in the bill. The practice here is us- 
 ually for the complainant to make 
 oath to his bill when it is signed, but 
 this is not imperative nor uniform. 
 It is not then done, if he is absent or 
 indisposed, though it should be done 
 probably before the hearing unless it 
 
 250
 
 Granting of Injunctions. 
 
 150 
 
 New York chancery practice required bills to be verified ; the de- 
 fendant was not bound to look beyond the copy of the bill served 
 on his solicitor, and he could demur if that did not contain the 
 requisite affidavit. 10 
 
 § 150. Allegations on information and belief. — Where the facts 
 upon which the equity of the complainant rests are alleged merely 
 upon " information and belief," a court will not ordinarily grant 
 an injunction. 11 But where a verifying affidavit cannot be pro- 
 cured, it has been decided that the complainant upon showing a 
 sufficient excuse in his bill will be entitled to an order to show 
 cause why an injunction should not be granted, and that upon a 
 bill thus framed and verified by the complainant's oath as to his 
 information and belief, a temporary injunction may be allowed 
 until the time for showing cause arrives. Thus an affidavit by the 
 attorney-general that he believes a suspended bank to be insolvent 
 is sufficient, where there is no denial by the bank, to justify the 
 granting of an injunction and appointment of a receiver. 12 And 
 
 be a bill by a corporation, or unless 
 an answer under oath is not asked, 
 or unless an oath to the bill is 
 waived, or its absence is not objected 
 to by the respondents when first 
 heard. And if the principal i3 not in 
 a situation to swear to it, the oath 
 may be made by an agent. 1 Bar- 
 bour, Ch. Pr. 41. When this case 
 was before my associate at a former 
 hearing, and when the order was 
 made as to filing other evidence, no 
 exception was taken to the absence 
 of an oath to the bill, and we both 
 concur in the opinion that after- 
 wards, if at all, a demurrer is not 
 good for that cause in this court." 
 
 10. Lansing v. Pine, 4 Paige, 639. 
 
 11. Florida. — Ballard v. Eckman. 
 20 Fla. 661. 
 
 Georgia. — Jones v. Macon & B. R. 
 Co., 39 Ga. 138; Taylor v. Harp, 37 
 Ga. 358. 
 
 Louisiana. — New Orleans Canal & 
 B. Co., 3 La. Ann. 225. 
 
 Minnesota. — Armstrong v. Sanford, 
 7 Minn. 49. 
 
 New York. — French v. Maguire, 55 
 How. Prac. 471; Hecker v. New York, 
 28 How. Prac. 211; Jewett v. Allen, 
 3 How. Prac. 129; Woodruff v. 
 Fisher, 17 Barb. 224; Pidgeon v. 
 Oatman, 26 N. Y. Super. Ct. 706. 
 
 West Virginia. — Shonk v. Knight 
 12 W. Va. 667. 
 
 12. Attorney-General v. Columbia 
 Bank, 1 Paige, 511; followed in 
 Campbell v. Morrison, 7 Paige, 157, 
 160. In Youngblood v. Schamp. 15 
 N. J. Eq. 42, the chancellor says: 
 " There is a class of cases, as, for ex- 
 ample, bills charging fraud, where in 
 the very nature of things positive 
 proof cannot be expected. In such 
 cases the additional verification may 
 be dispensed with and the injunction 
 
 257 
 
 17
 
 §151 
 
 Granting of Injunctions. 
 
 the case of a creditor's bill, where an injunction is sought for 
 against the judgment debtor alone, is an exception to the general 
 rule, that all the material facts must be sworn to positively, in 
 order to obtain a preliminary injunction ex -parte; 13 in such a case 
 the complainant may swear to his belief in the recovery of the 
 judgment and the return of the execution upon the information 
 of his attorney, as those facts were matters of record to which the 
 judgment debtor was a party. 14 
 
 § 151. Service of injunction. — Parties designed to be found 
 by an injunction have a right to accept service in the ordinary way 
 if they are accessible ; and if they are not so served, and no excuse 
 for it appear, as to them the injunction should be deemed waived 
 or as never in force. 15 But objections to service which are techni- 
 cal will not generally be allowed to prevail after verdict where the 
 
 issue on the affidavit of the complain- 
 ant founded on his belief alone." 
 
 13. Sizer v. Miller, 9 Paige, 605. 
 
 14. Hamersley v. Wyckoff, 8 
 Paige, 72. 
 
 15. In re Cary, 10 Fed. 622, 627. 
 Per Brown, J. 
 
 Under the New York Code 
 when an injunction order is granted 
 by the court, it must be served by 
 delivering a certified copy to the de- 
 fendant; when granted by a julge 
 by showing the original order and de- 
 livering a copy. Service on a corpo- 
 ration is made as a summons is per- 
 sonally served on it. Copies of the 
 papers on which the order was 
 granted must be delivered with the 
 copy of the order. Code Civ. Pro., § 
 610. Penfield v. White, 8 How. Prac. 
 87 ; Daly v. Amberg, 13 N. Y. Supp. 
 379, 380. In this connection it has 
 been decided in this State that the 
 order and the summons may be 
 served at the same time but it is ir- 
 regular to serve the order before the 
 summons, though it may be granted 
 
 before service of summons, so as to 
 operate as soon as the action is com- 
 menced. 10 Abb. Pr. 472, 19 How. 
 Pr. 54; Leffingwell v. Chase, 5 Bosw. 
 703. Probably such irregularity 
 would not be fatal to the validity of 
 the order. Phoenix Foundry v. North 
 River, etc., Co., 6 Civ. Pro. 106. Nor 
 would neglect to serve promptly the 
 moving affidavits. Davis v. Brooks, 4 
 Law Bui. (N. Y.) 49, Davis v. 
 Mayor. 1 Duer, 451; People v. Stur- 
 tevant, 9 N. Y. 263. 
 
 And where an injunction is 
 granted on a verified complaint, ser- 
 vice of a copy of the complaint with 
 the injunction is service of a copy of 
 the affidavit on which it was granted. 
 Leffingwell v. Chave, 10 Abb. Prac. 
 (N. Y.) 472, 19 How. Prac. 54. And 
 where it appears that the omission 
 of the plaintiff to file the papers 
 upon which an injunction is granted, 
 as required by the rule of court, is 
 an inadvertence, it is held that the 
 court may in its discretion relieve 
 the plaintiff upon or without terms. 
 
 258
 
 Granting op Injunctions. 
 
 151a 
 
 substantial rights of the parties have not been invaded. 16 So, 
 though there may not be a strict service of an injunction order as 
 required by code or statute, yet if the defendant has actual notice 
 of the granting of such an order he is bound thereby. 17 
 
 § 151a. Party enjoined out of State; mode of service. — In an 
 early case in New Jersey it is decided that personal service of an 
 injunction may be dispensed with if the party is out of the State 
 
 Leffingwell v. Chave, 19 How. Prac. 
 (N. Y.) 54. In this case the costs of 
 motion were imposed. 
 
 It is also decided that the original 
 injunction order must be shown to 
 the party, service of a copy only with 
 notice that it is a copy of the orig- 
 inal not being sufficient. Watson v. 
 Fuller, 9 How. Prac. (N. Y.) 425; 
 compare Mayor of New York v. New 
 York & S. I. F. Co., 40 N. Y. Super. 
 Ct. 300. But where an injunction is 
 granted by the court, and not by a 
 judge out of court, it is properly 
 served by delivering a certified copy 
 and no exhibition of the original or- 
 der is necessary. Mayor of New 
 York v. Conover, 5 Abb. Prac. (N. 
 Y. ) 244. Under the old chancery 
 practice it was necessary to serve all 
 of several joint defendants with an 
 injunction to restrain a suit at law 
 to which they were all parties; it 
 was enough to serve one of them and 
 their attorney in the suit at law. See- 
 bor v. Hess, 5 Paige, 85. 
 
 Where an injunction order is prop- 
 erly granted under section 603 of the 
 New York Code, it may be served on 
 defendant's agents and servants so 
 as to bind them before the summons 
 in the action is served on defendant. 
 Daly v. Amberg, 126 N. Y. 490, 27 
 N. E. 1038, per O'Brien, J.: "It 
 may be admitted that an injunction 
 served prior to the service of sum- 
 
 mons is irregular, but it by no means 
 follows that it is void. In some 
 cases the court acquires jurisdiction 
 of an action before the summons is 
 served. By section 416 of the Code 
 of Procedure jurisdiction of the ac- 
 tion is obtained for the purpose of 
 controlling all subsequent proceed- 
 ings from the time of granting a pro- 
 visional remedy. It follows that in 
 , this case the court had the power to 
 grant the injunction, and had juris- 
 diction of the action in which it was 
 granted, from that time for the pur- 
 pose of enforcing obedience to its or- 
 der. In this condition of things to 
 say that these appellants could dis- 
 regard the injunction when actually 
 served on them because the plaintiff 
 had not yet succeeded in making per- 
 sonal service of the summons upon 
 the defendant, would be to defeat the 
 remedy intended to be secured by the 
 order. See, also, Koehler v. Farmers', 
 etc.. Bank, 14 Civ. Pro. 71; aff'd 
 117 N. Y. 661, 22 N. E. 1134, to the 
 effect that defendant's knowledge of 
 an injunction makes it binding on 
 him though he has not been personally 
 served." 
 
 16. Ades v. Leir, 137 Ind. 506. 37 
 N. E. 388. See, also, Knudson v. 
 Firedery. 27 Misc. R. (N. Y.) 98. 
 
 17. Rochester, Hornellsville & L. 
 R. Co. v. New York, L. E. & W. R. 
 Co., 48 Hun (N. Y.), 190. 
 
 259
 
 § 152 Granting of Injunctions. 
 
 or cannot be found. 18 So, where the defendant. 1 ?, husband and wife, 
 were non-residents, and the injunction was served out of the State 
 on the husband, and proof was made that the wife could not be 
 found, an order was made, upon motion, that such service should 
 be deemed valid, and directing a copy of such order to be served 
 at the dwelling-house of the defendants. And in a later case it is 
 decided that service of injunction outside of the State to re- 
 strain a husband on a bill filed by his wife, from prosecuting a 
 suit for divorce in another State is binding on the husband where 
 both he and his wife have their matrimonial domicile in the latter 
 State, and her domicile is also there, and he has invoked the juris- 
 diction of the courts of another State in divorce proceedings on a 
 false and fraudulent allegation of residence therein. 19 And in this 
 connection it has been decided that leaving a copy at the residence 
 of the defendant is prima facie sufficient service of an injunction 
 though in a proceeding for contempt the defendant may purge 
 himself of it by a sworn denial of notice of the injunction. 20 
 
 § 152. Subpoenas ; service of. — Under the Xew York chancery 
 practice, it was irregular to serve an injunction on a party 
 without also serving him with a subpoena to appear and answer; 21 
 but the irregularity was waived by the defendant, if he voluntarily 
 appeared and answered the bill. 22 And in an early Minnesota case 
 it was decided that the service of an injunction without the service 
 of a subpoena, would under the established rule in equity be 
 
 18. Haring v. Kauffman, 13 N. J. action at law, to stay the proceedings 
 Eq. 397. therein, it will be sufficient to stay 
 
 18a. Haring v. Kauffman, 13 N. them if the injunction is served on 
 
 J. Eq. 397. the attorney, and on any of such 
 
 19. Kempson v. Kempson, 63 N. plaintiffs, although it is not served 
 J. Eq. 783.. 52 Atl. 360, 365, 92 Am. on all; but the subpoena must be 
 St. Rep. 682. served on each defendant, unless he 
 
 20. Morris v. Bradford, 19 Ga. elects to appear voluntarily. See, 
 527. See Jordan v. Circuit Court of also. Parker v. Williams, 4 Paige, 
 Wapello Co., 69 Iowa, 177, 28 N. W. 439. 
 
 548. 22. Parker v. Williams, 4 Paige, 
 
 21. Seeber v. Hess, 5 Paige, 85, 439. See, also, Thebaut v. Canova, 
 holding that where a bill is filed 11 Fla. 143. 
 
 against several joint plaintiffs in an 
 
 260
 
 Granting of Injunctions. § 152a 
 
 irregular, and in such a case the injunction would on motion be 
 dissolved, but the proceedings are not void and until dissolved the 
 injunction would be obligatory upon the defendant. 23 In New 
 Jersey a subpoena must be served with the injunction, and made 
 returnable within the time prescribed by the rule for a return of 
 service of the injunction; and the rule requires the injunction to 
 be served within ten days after it is issued, and a return of service 
 made to the court within twenty days after such service. 24 Under 
 the Federal practice, the court may, on the showing made by the 
 bill, issue a temporary restraining order and a subpoena, giving 
 notice to defendant to appear on the next rule day of the court 
 and plead to or answer the bill. 25 
 
 § 152a. Substituted service. — To the general rule in chancery 
 that service of the subpoena in chancery to answer a cross-bill can- 
 not be made upon the solicitor of the plaintiff in the original bill an 
 exception is made in case of injunctions to stay proceedings at law 
 when to prevent a failure of justice, the court will order service 
 of the subpoena to be made upon the attorney of the plaintiff in 
 the suit at law. 26 So it is said that the power of the court of equity 
 to authorize substituted service in suits instituted in aid of the 
 defense to an action at law, where the plaintiffs in such action 
 are non-residents and absent from the State is well established. 27 
 And in Maine it is held that where a citizen of another State is 
 prosecuting in the courts of Maine, a claim at law affecting land 
 there, he is so far within the jurisdiction of a Maine court of 
 equity as to be liable, upon service made on his attorney in the suit 
 at law, and notice to himself where he resides, to an injunction 
 against the further prosecution of his action at law. 28 But in an 
 
 23. Lash v. McCormick, 14 Minn. 4 Wash. C. C. 370; Hitner v. Suck- 
 482. ley, 12 Fed. Cas. No. 6543, 2 Wash. 
 
 24. Lee v. Cargill, 10 N. J. Eq. C. C. 465. 
 
 331. 27. Crellin v. Ely, 13 Fed. 420, 
 
 25. Payne v. Kansas R. Co., 46 Per Field, J. 
 
 Fed. 546. 28. Marco v. Low, 55 Me. 549, per 
 
 26. Lowenstein v. Glidewell. 15 Barrows, J.: " R. S. ch. 77, § 9, 
 Fed. Cas. No. 8575. 5 Dill. 325; Eck- provides for the insertion of a bill 
 ert v. Banert, 8 Fed. Cas. No. 4266, of equity in a writ of attachment, in 
 
 261
 
 § 153 Gkanti.no ob Injunctions. 
 
 early case in Iowa where in a suit in chancery against a foreign 
 corporation, for an injunction to restrain proceedings at law, com- 
 menced by the defendants in that suit, service was made upon one 
 of the attorneys of the corporation, and there being no appearance 
 the bill was taken pro confesso, and a decree entered perpetually 
 enjoining the corporation, its agents and attorneys, from collecting 
 a portion of the debt, it was decided that the service upon the 
 attorney was not such service upon the corporation as gave the 
 court jurisdiction to order a perpetual injunction. 2 * 
 
 § 153. Temporary injunctions, by whom granted. — When not 
 otherwise specially prescribed by law, a temporary injunction may 
 be granted, under the New York Code, by the court in which the 
 action is brought, or by a judge thereof, or by any county judge; 
 and where it is granted by a judge, it may be enforced as the order 
 of the court. 30 A general term of the Supreme Court can revive 
 and continue an injunction, pending an appeal, but it should be 
 on the giving of a new undertaking, as upon the granting of the 
 original injunction. 31 There are several special cases in New York 
 
 such case ' to be served as other similar to that of New York, and pro- 
 writs.' By R. S. ch. 81, § 17, if the vides that an injunction may be 
 defendant was never an inhabitant of granted at the time of commencing 
 this State, or has removed therefrom, the action, or any time afterwards be- 
 where, as here, goods and estate are fore judgment, by the District Court 
 attached, service may be made on his of the county, or the judge thereof, 
 tenant, agent, or attorney. We hold or in his absence from the county by 
 the service on the attorney a suffi- the probate judge, on its appearing 
 cient service of this bill so far at satisfactorily to the court or judge, 
 least as the prayer for an injunction by the affidavit of the plaintiff or 
 against the prosecution of the action his agent, that the plaintiff is en- 
 Low v. Marco is concerned. See, also, titled thereto. Gen. Stats., 1889, § 
 Chalmers v. Hack, 19 Me. 124. Such 4334. This injunctive jurisdiction of 
 service would not have been sufficient the District Court and judge has not 
 perhaps if he had not been litigat- been affected by section 9 of the local 
 ing in the State. Spurr v. Scoville, statute of 1889, creating the Court of 
 3 Cush 5/8." Common Pleas of Sedgwick county. 
 
 29 Death v. Bank of Pittsburg, 1 L. 1889, ch. 117, § 9; State, etc., v. 
 
 Iowa, 382. Pierce, 51 Kan. 241, 32 Pac. 924. 
 
 30. Code Civ. Pro., § 606. The 31. Disbro v. Disbro, 37 How. Pr. 
 Kansas statute of 1868, relating to 147. In 1849 it was decided at gen- 
 injunctions, is in its general features eral term tnat that court could en- 
 
 262
 
 GlJANTING OF INJUNCTIONS. § 153 
 
 m which an injunction can be granted only by the court. 32 An 
 injunction against the New York city board of health can be 
 granted only by the Supreme Court, at a special or general term ; 33 
 and against a banking company, under the New York banking 
 laws, only by a justice of the Supreme Court. 34 In New York an 
 application for an injunction is a non-enumerated motion, and if 
 made to the court, should be made at special term. 35 In an action 
 in the New York Supreme Court, a county judge may make an 
 order requiring the defendant to show cause why an injunction 
 should not be granted in the action, and restraining him in the 
 meantime from doing the acts sought to be enjoined. 36 And as the 
 Court of Common Pleas of the city and county of New York was 
 not a county court, a judge of that court had no jurisdiction, under 
 section 606 of the Code of Procedure, to grant an ex parte injunc- 
 tion in an action pending in the Superior Court of the same city. 37 
 In Tennessee the chancellors, circuit and special judges are author- 
 ized by statute to grant injunctions. 38 Under the Virginia Code of 
 1873, authorizing every judge of a County Court to award injunc- 
 tions, whether the judgment or proceeding enjoined be of a superior 
 or inferior court of his county or district, a judge of a County 
 Court may award an injunction on a bill addressed to the judge 
 of the Circuit Court, and the fact that the bill was afterwards filed 
 in the Circuit Court does not affect the validity of the injunction. 39 
 A judge disqualified by affinity cannot grant an injunction. 40 An 
 injunction order made by a judge is a mandate of the court, and 
 has the same force and effect as if made by the court. 41 
 
 tertain a motion for an injunction. 37. People, etc., v. Edson, 52 N- 
 
 Drake v. Hudson Riv. R. Co., 2 Code Y. Super. Ct. 53. 
 
 Rep . 67 . 38. Tenn. Code, §§ 3946, 4434. See 
 
 32. Code Civ. Pro., §§ 1781. 1784, Flippin v. Knaffle, 2 Cooper, Tenn. 
 
 1785. 1797, 1798, 1806, 1809. Ch. 238, 243. 
 
 i>3. L. 1882, ch. 410, § 619. 39. Rosenberger v. Bowen, 84 Va. 
 
 34. L. 1882, ch. 409, §§ 131, 132. 660, 5 S. E. 697. 
 
 35. General Rules of Practice, 38. 40. New York, etc., R. Co. v. 
 
 36. Morris v. Mayor, 17 Civ. Pro. Schuyler, 28 How. Pr. 187. 
 
 407, construing and applying § 606 of 41. People v. Dwyer, 90 N. Y. 
 
 the Code; Babcock v. Clark, 23 Hun, 402. 
 
 391. 
 
 263
 
 §§ 154, 155 
 
 Granting of Injunctions. 
 
 § 154. Granting on Sunday and holidays or in vacation. — In 
 urgent cases, for the prevention of irreparable injury, an ex parte 
 injunction may be granted on a holiday; 42 and even on a Sunday, 
 as expressly authorized by the Illinois statute of 1874.* 3 A Code 
 provision that if an injunction be granted in vacation the judge 
 must indorse the order upon the petition, is held to be directory 
 merely and the fact that the judge wrote the order on a separate 
 piece of paper does not vitiate the injunction. 44 
 
 § 155. Second injunctions. — It is deemed derogatory to the 
 court to grant a second injunction, unless the first one has been 
 withdrawn by some agreement, between the parties, and satis- 
 factory reasons are shown for a renewal. 40 Upon the plea of res 
 adjudicata, a judgment between the same parties, dissolving an 
 injunction, is a perpetual bar to a subsequent injunction upon 
 grounds that existed anterior to the judgment, and of which the 
 plaintiff in injunction might have availed himself in the first 
 instance; 46 and even where the first proceeding was not an injunc- 
 
 Monce, L. R. 16 Eq 
 
 42. Carr v 
 125. 
 
 43. Langabier v. Fairbury, etc., R. 
 Co., 64 111. 243. Jn this case it ap- 
 pears that the railroad company 
 took violent possession of a street at 
 midnight between Saturday and Sun- 
 day, with the avowed purpose of lay- 
 ing a track through it before Mon- 
 day morning, for the express purpose 
 of evading an injunction. An in- 
 junction was, however, granted on 
 Sunday, and sustained as valid. 
 Breese, J., in the course of a very 
 breezy opinion, said: "Here, this 
 dies non juridicus was selected by the 
 railroad company as the proper day 
 to commit a great outrage upon pri- 
 vate and p iblic rights, believing the 
 arm of the law could not be extended 
 on that day to arrest them in their 
 high-handed and unlawful design. To 
 the complainant the acts they were 
 organized to perpetrate on that day 
 
 were fraught with irreparable injury. 
 Feeble, indeed, would be the judicial 
 arm if it could not reach such mis- 
 creants." 
 
 44. Jordan v. Circuit Court of 
 Wapello Co., 69 Iowa, 177, 28 N. W. 
 548. 
 
 45. Livingston v. Gibbons, 4 
 Johns. Ch. (N. Y.) 571. 
 
 46. Porter v. More, 30 La. Ann. 
 230; McMicken v. Morgan, 9 La. Ann. 
 208; Fluker v. Davis, 12 La. Ann. 
 613. Where, on a second application 
 for injunction on the same bill, after 
 a refusal on the first application has 
 been acquiesced in until too late for 
 a writ of error, the only new fact in- 
 corporated by amendment in the bill 
 is one which was known to the com- 
 plainant when the bill was first 
 brought, the injunction should be re- 
 fused. Beckwith v. Blanchard, 79 
 Ga. 303, 7 S. E. 224. 
 
 264
 
 Granting of Injunctions. § 156 
 
 tion, but a rule resorted to for the purpose of arresting an execu- 
 tion, it has been held that a judgment discharging the rule is 
 equivalent to one dissolving an injunction, so as to sustain the plea 
 of res ad judicata against a subsequent injunction. 47 But where it 
 is manifest that the plaintiff in injunction will be entitled to 
 another, if the first one be dissolved for want of evidence, the case 
 may be remanded, to enable him to supply the evidence omitted. 48 
 And so where a temporary injunction has been granted and then 
 dissolved, and the bill remains on file, and the cause is still within 
 the control of the court, it is not error, on rehearing of the order 
 dissolving the injunction, to vacate that order and reinstate the 
 injunction without a refiling of the bill. 49 In Kansas it is ex- 
 pressly provided that no injunction shall be granted by a judge, 
 after a motion therefor has been overruled on the merits of the 
 application, by his court; and where it has been refused by the 
 court in which the action is brought, or a judge thereof, it shall 
 not be granted to the same applicant by a court of inferior juris- 
 diction, or any judge thereof. 50 Where a bill is filed before a vice- 
 chancellor for an injunction, and after hearing both parties thereon, 
 he refuses to allow it, it is irregular to bring the same question 
 before the chancellor by a new bill, while the former suit is pend- 
 ing before the vice-chancellor. 51 
 
 § 156. Injunction against parties only; exception. — The New 
 York Code provides for an injunction only against a party to the 
 action and those who act under his authority ; 52 and is declaratory 
 
 47. Trescott v. Lewis, 12 La. Ann. Edmonston v. McLoud, 19 Barb. 356. 
 197. It is a well-settled general rule that 
 
 48. Citizen's Bank v. Crooks, 21 the court has no right to grant an in- 
 La. Ann. 324. junction against a person who is not 
 
 49. Peck v. Spencer, 26 Fla. 23, 7 a party to the suit. The exceptions 
 So. 642. to this rule consist either of cases 
 
 50. Gen. Stats., 1889, § 4341. where the party enjoined is the mere 
 
 51. Winship v. Pitts, 3 Paige, 259. solicitor, or agent, or tenant of a 
 
 52. Walton v. Grand Belt Co., 56 party to the suit, having no rights 
 Hun, 211, 9 N. Y. S. 375; Farrington involved in the controversy, or where 
 
 v. Birdsall, 5 N. Y. W. Dig. 421 
 Fellows v. Fellows, 4 Johns. Ch. 25 
 Watson v. Fuller, 9 How. Pr. 425 
 
 the right has been already deter- 
 mined. Schalk v. Schmidt, 14 N. J. 
 Eq. 268. An injunction directed to 
 
 265
 
 §157 
 
 Granting of Injunctions. 
 
 of the rule which obtained in the former court of chancery. 53 Thi3 
 rule is subject to the exception that when a court has jurisdiction 
 of the subject matter of a suit or proceeding, it may enjoin per- 
 sons who are not parties from interfering with the property. Thus, 
 a court which appoints a receiver of the assets of an insolvent cor- 
 poration may, in aid of that appointment, enjoin any subsequent 
 interference, by way of levy and seizure by attachment or execu- 
 tion, with the property in his possession. 54 It is not usual to insert 
 the name of an agent in the order, unless for special reasons, but 
 the insertion of the agent's name will not vitiate the injunction. 55 
 
 § 157. Subsequent applications; bar to. — The refusal to grant 
 a temporary injunction does not bar a subsequent application, upon 
 different affidavits, for in such a case the doctrine of res adjudicata 
 
 several persons, appearing on its face 
 not to be parties to the suit, is in- 
 operative as to them, except as a no- 
 tice. Sage v. Quay, Clarke's Ch. 347. 
 A recent preliminary injunction in 
 the U. S. Circuit Court was as fol- 
 lows: Ordered, adjudged and de- 
 creed, that an injunction do issue to 
 M. V. T., sheriff of Aiken county, his 
 deputies and agents, enjoining and 
 restraining them from further inter- 
 meddling, interfering with, keeping 
 and holding, the personal property 
 destrained upon by him. belonging to 
 the petitioner, as receiver of the 
 Southern railroad, or in his care and 
 custody, as receiver and common car- 
 rier, and that this injunction remain 
 of force until the further order of 
 this court. It is further ordered, 
 that the said property be restored to 
 the custody of the receiver of this 
 court, and that the marshal put him 
 in possession thereot." 
 
 53. Fellows v. Fellows.. 4 Johns. 
 Ch. 25, per Kent, Ch.: "The doc- 
 trine in the case cited, Iveson v. Har- 
 
 ris, 7 Ves. 257, is correst and applic- 
 able. ' I find,' said Lord Eldon, ' the 
 court has adhered very closely to the 
 principle that you cannot have an in- 
 junction except against a party to 
 the suit. Upon a review of all the 
 cases, I think the practice of granting 
 an injunction against a creditor who 
 is not a party, is wrong. The court 
 has no right to grant an injunction 
 against a person whom they have not 
 brought, nor attempted to bring, be- 
 fore the court by subpoena.' I shall, 
 accordingly, dissolve the injunction 
 as against those persons who were not 
 made parties to the suit. A purchaser 
 was restrained, in Green v. Lowes. 3 
 Bro. C. C. 21/, from paying the pur- 
 chase money on a bill by the creditors 
 of the vendor, but the purchaser was 
 made a party" 
 
 54. Woerishoffer v. North River, 
 etc., Co., 99 N. Y. 398; Attorney Gen- 
 eral v. Guardian Ins. Co., 77 N. Y. 
 272. 
 
 55. Farrington v. Birdsall ; 5 N. Y. 
 W'kly Dig. 421. 
 
 266
 
 Granting of Injunctions. 
 
 §157 
 
 has no application;- and the withholding a restraining order on 
 the first application simply adjudges the insufficiency of the evi- 
 dence then offered, and leaves open the question whether it shall 
 be allowed on another and better showing. 57 But in those cases 
 where the application for an injunction has been refused a motion 
 to reinstate the injunetion is not the proper procedure. The 
 allowance of subsequent applications is analogous to the granting 
 of new trials for newly discovered evidence. 59 In Iowa no injunc- 
 tion shall be granted by a judge after the application has been over- 
 ruled by the court; nor by a court or judge, when it has been 
 refused by the court, or a judge thereof, in which the action is 
 brought; 60 but where a temporary injunction is applied for, on the 
 .round of a threatened injury, and denied, it does not prevent 
 plaintiff from again applying for an injunction when an injury is 
 actually inflicted. 61 In New York, if an application for an order, 
 made to a judge of the court, or to a county judge, is wholly or 
 partly refused, or granted conditionally, or on terms a subsequent 
 application in reference to the same matter, and in the same stage 
 of the proceedings, shall be made only to the same judge, or to he 
 court. If it is made to another judge, out of court, an order granted 
 thereupon must be vacated by the judge who made it, or if he is 
 absent, or otherwise unable to hear the application, by any judge 
 of the court, upon proof, by affidavit of the facts. 62 In tins State 
 it has been decided that where there is no adjudication on the 
 merits in the case of a motion for an injunction pendente lite and 
 such adjudication could have been obtained by the exercise of 
 proper diligence in bringing the case to trial a motion to renew 
 such motion is properly denied where the same facts are presented 
 as were relied on originally. 63 
 
 56 Halcombe v. Com'rs, 89 N. C. 59. Blizzard v. Nosworthy, 50 Ga. 
 
 346 ; London v. Wilmington City, 78 514.^ ^ ^ ^^ § ^ 
 
 N 57*: Balcon.be v. Com'rs, 89 N. C. 61. Graves .Key City Gas. Co, 83 
 
 34G- Glass v. Clark, 41 Ga. 544. The Iowa, 714, 50 N. W. 283 
 
 principle of these decisions is in bar- 62. Code Ov Pro § m. 
 
 - A u *•„„ «9«5 ni the New 63. New York Bank INote Co. v. 
 
 vT rt oTp'roceduro Hamilton Bank Note E. 4 P. Co., 89 
 
 Y ts. ct,e Co " HaV, - **■ Hon. 612, 35 N. Y. Sopp. U.S. 
 Law Rep. 1889, 50 S. W. 244. 
 
 267
 
 Injunction Bond and Actions on it. 
 
 CHAPTER V. 
 Injunction Bond and Actions on it. 
 
 Section 158. History of injunction bonds. 
 
 159. Same subject in England. 
 159a. Object of injunction bond. 
 
 160. Cases when bond not required — Discretion as to. 
 
 161. Requiring bond — Discretion as to. 
 
 162. Same subject in Maryland. 
 
 163. Bond as condition precedent to injunction. 
 
 164. Same subject. 
 
 165 Where enforcement of judgments enjoined — In New York. 
 
 166. Same subject — In Iowa. 
 
 167. Same subject — In Arkansas — In niinois. 
 
 168. Same subject — In New Jersey. 
 
 168a. Bond having force and effect of judgment — Statutes. 
 
 169. Additional bond or security. 
 
 170. Construction of bond. 
 
 171. Same subject. 
 
 172. Construction of bond continued. 
 
 172a. Necessity of compliance with statute. 
 172b. Effect of errors and omissions in bond. 
 
 173. Execution of injunction bond by applicant. 
 
 174. Enforcing State bond in federal courts. 
 
 175. Bond essential to recovery of injunction damages. 
 
 176. Same subject— In Minnesota, Kentucky. Pennsylvania. 
 
 176a. Action on bond as effected by malice — Want of probable cause. 
 
 177. Action for damages on bond — When accrues. 
 177a. Same subject — Evidence — Burden of proof. 
 
 178. Same subject — Evidence of damage. 
 
 179. Breach of condition of bond. 
 
 180. Breach of bond further considered. 
 
 181. Same subject — In Alabama and Ohio. 
 
 182. Same subject — In Kentucky, California, Iowa and Maine. 
 
 183. Venue — Action pending an appeal. 
 
 184. Parties to actions on injunction bonds — Nominal parties. 
 184a. Parties plaintiff continued. 
 
 185. Parties plaintiff concluded. 
 
 186. Requisites of bond as basis of action. 
 
 187. Complaint on injunction bond — Demurrer. 
 
 188. Same subject. 
 
 189. Allegations of special damage. 
 
 268
 
 Injunction Bond and Actions on it. § 158 
 
 Section 189a. Effect of plea or answer. 
 189b. Defenses — Generally. 
 189c. Defenses — Want of jurisdiction. 
 189d. Presumptions. 
 
 Section 158. History of injunction bonds. — Formerly when 
 temporary injunctions were granted upon the petition or other ex 
 parte showing of the applicant, and were afterwards dissolved, 
 neither law nor equity furnished any remedy to the defendant for 
 the damages caused by them, for they were regarded as flowing 
 from the judgment and order of the court, and not from the plain- 
 tiff, if he did nothing more than to sue in good faith for the injunc- 
 tion awarded him. The injustice which so often resulted to the 
 defendant from hasty orders of injunction, led the courts to adopt 
 measures of indemnity and protection for those who were enjoined, 
 and to require bonds from the plaintiff for the payment of damages 
 to defendant in case of a final decision averse to the injunction. 1 
 The rights of courts of equity to require the applicant for an in- 
 junction to furnish an injunction bond arises from the discretion 
 which those courts have to grant or not to grant the injunctions, 
 and to declare the conditions upon which they may be granted. 2 
 
 1. Russell v. Farlej, 105 U. S. Forum Romanum, p. 196, repeated in 
 433, 26 L. Ed. 1060; Bein v. Heath, Bacon's Abridgment, title Injunction, 
 12 How. (U. S.) 168, 13 L. Ed. 939; C, speaking of the course where an 
 St. Louis v. St. Louis Gaslight Co., answer is put in, denying the equity 
 82 Mo. 349. of the bill, followed by a rule nisi 
 
 2. Jones v. Florida R. Co., 41 Fed. to dissolve the injunction, says: 'The 
 70, 73. In Russell v. Farley, 105 U. plaintiff must show cause either upon 
 S. 433, 438, 26 L. Ed. 1060, the his- the merits, or upon filing of excep- 
 tory of injunction bonds is thus tions; if upon the merits, the court 
 traced: "The power to impose such may put what terms they please upon 
 conditions is founded upon and arises him, as bringing in the money, or 
 from the discretion which the court paying it to the party, subject to the 
 has in such cases, to grant or not to order of the court, or giving judg- 
 grant, the injunction applied for. It ment with a release of errors, and 
 is a power inherent in the court as a consenting to bring no writ of error, 
 court of equity, and has been exer- or to give security to abide the order 
 cised from time immemorial. The on hearing, or the like.' See, also, 
 older authorities refer to numerous Newland's Ch. Prac. 223, 224; Kerr, 
 instances in which it has been exer- Injunctions, 212, 622; Story. Eq. 
 cised. Chief Baron Gilbert in his Jur. §§ 9586, 959d. In Marquis of
 
 §159 
 
 Injunction Bond and Actions on it. 
 
 § 159. Same subject in England. — In England undertakings 
 were required from the applicant not only for the purpose of com- 
 pensating defendant but also to enable the court to punish plaintiff 
 where he unfairly presented his case. At first the practice was to 
 
 Downshire v. Lady Sandys, 6 Ves. 
 Jr. 107, A. D. 1801, Lord Eldon said 
 if there was a real doubt on the sub- 
 ject in controversy, he would direct 
 an issue, ' taking care that if in the 
 result of such a direction the de- 
 fendant should be prejudiced by not 
 being permitted to cut in the mean- 
 time trees claimed to be ornamental, 
 the plaintiff should undertake to pay 
 the value if the decision should be 
 against him.' In a similar case, in 
 1825, the same judge made an order 
 that the plaintiff should go before 
 the master and give such security as 
 would in the master's judgment se- 
 cure to the defendants the value of 
 all the trees which they should be 
 prevented from cutting by the in- 
 junction, in case it should finally 
 turn out in the judgment of the 
 court that they ought not to have been 
 enjoined in equity. Wombwell v. 
 Belasyse, 6 Ves. Jr. 110, note. In 
 Wilkins v. Aikin, 17 Ves. Jr. 422. 
 where a bill was filed to prevent the 
 infringement of a copyright; but it 
 being doubtful whether the defendant 
 did more than make allowable ex- 
 tracts from the plaintiff's work, Lord 
 Eldon said: 'The proper course in 
 this instance will be to permit this 
 work to be sold in the meantime; 
 the defendant undertaking to account 
 according to the result of the action.' 
 The same practice has prevailed in 
 this country in some cases in pursu- 
 ance of statute, and in others by the 
 action of the court itself. As early 
 as 1723 a law was passed in Mary- 
 land that any person desiring to pro- 
 
 ceed in equity against a verdict or 
 judgment rendered against him in 
 the County Court, should be required 
 to give security in double the amount 
 of the debt and all costs and dam- 
 ages that should accrue in the chan- 
 cery court, or should be occasioned by 
 the delay, unless the chancery court 
 should decree to the contrary, and in 
 all things obey such order or decree 
 as tlie court should make. In 1793 an 
 addiiional law was passed to the ef- 
 fect that whenever an application 
 should be made for an injunction to 
 stay proceedings at law the chancel- 
 lor should have power and discretion 
 to require the applicant to give :t 
 bond to the plaintiri at law with con- 
 dition to perform such order or de- 
 cree as the chancellor should finally 
 pass in the cause. Similar laws we re- 
 passed in Virginia in 1787 and in 
 New Jersey in 1799. and no doubt in 
 other States at an early date. Their 
 object was where an adjudication had 
 already been nad at law to make it 
 compulsory on the chancellor to re- 
 quire security before granting an in- 
 junction. The jealousy of the courts 
 of law at the interference of the 
 courts of chancery with their judg- 
 ments is a matter of historical notori- 
 ety. But these laws did not interfere 
 with the chancellor's discretionary 
 power to require a bond in all other 
 cases. Regulations substantially sim- 
 ilar to those above adverted to were 
 prescribed by general rule of the 
 Court of Chancery of New York prior 
 to the adoption of the Revised Stat- 
 utes. In 1828 they were codified with 
 
 270
 
 Injunction Bond and Actions on it. 
 
 §159 
 
 require undertakings only where the application was ex parte. 3 
 In England, an undertaking has been styled " the price of an 
 injunction." * 
 
 amendments in that revision. But 
 the rule as well as the statute re- 
 lated only to injunctions for staying 
 proceedings at law. In 1830 the 
 chancellor of New York for the first 
 time made a general rule (No. 31) 
 that where no special provision was 
 made by law as to security, the vice- 
 chancellor or master who allowed an 
 injunction out of court should take 
 from the complainant or his agent, a 
 bond to the party enjoined, either 
 with or without sureties in the dis- 
 cretion of the officer, in such sum as 
 might be deemed sufficient, not less 
 than $500. conditioned to pay such 
 party all damages he might sustain 
 by reason of such injunction if the 
 court should decide that the com- 
 plainant was not entitled to the 
 same; and that the damages might 
 be ascertained by a reference or 
 otherwise, as the court should direct. 
 1 Hoff. Ch. Pr. 80; 1 Barb. Ch. Pr. 
 622; Cayuga Bridge Co. v. Magee. 2 
 Paige, 116, 122. The object no doubt 
 was to prevent hasty and oppressive 
 injunctions from being issued by sub- 
 ordinate officers. This rule enlarged 
 and made applicable to all courts and 
 judges, was copied in the New York 
 Code of Procedure of 1848, § 195 
 (now § 222), and has been followed 
 in other codes and systems of prac- 
 tice in other States. See 2 R. S. 
 Wisconsin, 748; also laws of Illinois, 
 Iowa and Colorado. It was substan- 
 tially adopted in the chancery rules 
 of New Jersey in 1853. except that 
 it was left to the discretion of the 
 officer to require a bond or not. It 
 was copied in the statute of Minne- 
 sota under which the bonds in the 
 
 present case were taken, as may be 
 seen by comparing it with the sec- 
 tion of said statutes already cited." 
 3. Smith v. Day, L. R. 21 Ch. D. 
 421, per Jessel, M. R. : "The under- 
 taking was invented by Lord Justice 
 Knight Bruce when vice chancellor, 
 and was originally inserted only in 
 ex parte orders for injunctions. Its 
 object was, so to say, to protect the 
 court as well as the defendant from 
 improper applications for injunc- 
 tions. If the evidence in support of 
 the application suppressed or mis- 
 represented facts the court was en- 
 abled not only to punish the plain- 
 tiff but to compensate the defendant. 
 By degrees the practice has extended 
 to all cases of interlocutory injunc- 
 tion. The reason for this extension 
 was that though when the applica- 
 tion was disposed of on notice, there 
 was not the same opportunity for 
 concealment or misrepresentation, 
 still, owing to the shortness of time 
 allowed, it was often difficult for the 
 defendant to get up his case properly, 
 and as the evidence was taken by af- 
 fidavit, and generally without cross- 
 examination, it was impossible to de- 
 cide on which side the truth lay. The 
 court, therefore, required the under- 
 taking in order that it might be able 
 to do justice if it had been induced to 
 grant the injunction by false state- 
 ment or suppression." 
 
 May not be necessary in action 
 by attorney general in behalf of 
 crown. Attorney-General v. Albany 
 Hotel Co. (C. C.) [1896], 2 Cb. 696, 
 75 Law T. R. 140. 
 
 4. Tucker v. New Brunswick Trad 
 ■. ing Co. (1890), 44 Ch. D. 249. 
 
 271
 
 §§ 159a, 1(50 Injunction Bond and Actions on it. 
 
 § 159a. Object of injunction bond. — The office of an injunction 
 bond is not to create or measure the liability of the complainant fur 
 damages, but to secure the payment of such damages, up to the 
 amount of the penalty of the bond. 5 So it is said : " An injunc- 
 tion is a high prerogative writ, executed and enforced in a sum- 
 mary manner. By sen-ice of the writ, the party is required imme- 
 diately to withdraw and cease operations; hence the propriety in 
 requiring a bond for the indemnity of the party in such damages 
 as he may sustain, by reason thereof." 6 
 
 § 1G0. Cases when bond not required; discretion as to. — On 
 
 the granting of a preliminary injunction against infringement, 
 complainant will not be required to give a bond for the protection 
 of defendants, when the latter have been guilty of bad faith towards 
 him. 7 Under the United States Revised Statutes of 1874 a Federal 
 court may grant a restraining order, " with or without security, in 
 the discretion of the court or judge." In Ohio where the solicitor 
 of a municipality enjoins the misappropriation of money by the 
 council, he is not required to give a bond. 9 Where an injunction 
 is applied for in New York by a domestic municipal corporation 
 or by a public officer in behalf of the people or of such a corpora- 
 tion, no security is required, except specially required by statute. 1 " 
 The object of the rule of the New Jersey Court of Equity provid- 
 
 5. Kohlsaat v. Crate, 144 111. 14, the record showing that the defend- 
 19, 32 N. E. 481. ants in this suit have been guilty of 
 
 6. Gear v. Shaw, 1 Pin. (Wis.) bad faith towards the complainant, 
 608, 615. Per Miller, J. See State to such an extent that they are not 
 v. Milwaukee, 102 Wis. 509, 513, 78 equitably, as I think, entitled to the 
 N. W. 756, wherein it is said that protection from complainant." 
 
 the writ of injunction as given to the 8. § 718. 
 
 Supreme Court by the Constitution The discretion of a federal 
 being classed with mandamus, habeas court in fixing the amount of the 
 corpus, quo warranto, and certiorari, bond or in imposing terms as a con- 
 is a quasi prerogative writ, and that dition of granting an injunction is 
 all of such writs were given to this not restricted by any statute or rule, 
 court for prerogative uses only. Cimiotti Unhairing Co. v. American 
 
 7. Pasteur Chamberland Filter Co. Fur R. Co., 158 Fed. 171. 
 
 v. Funk, 52 Fed. 146, where Blodgett, 9. Forsythe v. Winans. 44 Ohio St. 
 
 J., said: "A bond would be re- 277, 7 N. E. 13. 
 
 quired as a condition of granting 10. Code Civ. Pro., § 1990. 
 
 this injunction but for the proof in 
 
 272
 
 Injunction Bond and Actions on it. 
 
 160 
 
 ing that the chancellor or master may at his discretion take from 
 the complainant a bond conditioned to pay to the defendant such 
 damages as he may sustain if the court shall eventually decide that 
 complainant was not equitably entitled to the injunction, was to 
 secure good faith in the application and to provide indemnity to 
 the defendant against the effects of an injunction unfairly ob- 
 tained. 11 The Nebraska statute providing for the execution of a 
 supersedeas bond on the dissolution of a temporary injunction, does 
 not authorize the execution of such bond where, pending an appli- 
 cation for granting a temporary injunction, a restraining order has 
 been issued to restrain defendant from a commission of the act 
 complained of until the application for the temporary injunction 
 can be heard; and a writ of mandamus will not lie to a judge of 
 the District Court, requiring him to fix the amount of such bond 
 to be filed by plaintiff, where a temporary injunction is refused, 
 notwithstanding a restraining order may have been formerly 
 granted. 12 In Indiana, under a statute there in force, it is decided 
 
 11. Smith v. Kuhl, 26 N. J. Eq. 
 97. See Dodd v. Flavel, 2 C. E. 
 Green, 255. where the chancellor re- 
 fused to require security because the 
 complainant's right was clear and the 
 infraction of that right established. 
 See, also. Henwood v. Jarvis. 27 N. 
 J. Eq. 247. It has been ruled " that 
 a dissolution of the injunction is 
 not, of itself, evidence that he was 
 not equitably entitled to it. And 
 though it may have been improvi- 
 dently granted, and for that cause 
 be dissolved before answer, that will 
 not, if the case is fairly presented 
 by the bill and verification entitle 
 the defendant to damages. But if the 
 application be dising?nuous, malafide, 
 or made without due regard to the 
 rights of the court or the defendant, 
 in the application, the complainant 
 is to be regarded as not having been 
 equitably entitled to the injunction." 
 Smith v. Kuhl. 26 N. J. Eq. 97. The 
 
 chancellor may require the bond to 
 be filed with his clerk in escrow, and 
 in such case the defendant has no 
 right therein until the chancellor or- 
 ders it delivered to him. Brown v. 
 Easton, 30 is. J. Eq. 725, and see 
 New York, etc.. R. Co. v. Dennis. 40 
 N. J. L. 340. 
 
 12. State v. Wakeley. 28 Neb. 431, 
 44 N. W. 488, per Reese, C. J.: "The 
 statutes of this State do not provide 
 in terms for the execution of a bond 
 of indemnity when a restraining or- 
 der is issued pending an application 
 for an injunction ; yet we have no 
 doubt of the right, indeed of the 
 duty, of the judge, when granting a 
 restraining order, to require that the 
 party against whom the order is is- 
 sued shall be indemnified against loss 
 resulting therefrom." See also. State 
 v. Green, 48 Neb. 327, 67 N. W. 162; 
 Neb. Code Civ. Proe., §§ 677 et seq. 
 
 273 
 
 18
 
 161 
 
 Injunction Bond and Actions on it. 
 
 that a bond is not required in a case where an injunction is awarded 
 in the final decree. 13 
 
 § 161. Requiring bond; discretion as to. — In cases where no 
 bond is expressly required by statute, a court of equity in the exer- 
 cise of a sound discretion may, as the condition of granting a pre- 
 liminary injunction, require the applicant therefor to give a bond 
 or other security for the protection of defendant. 14 A bond may be 
 required conditioned to pay the damages sustained by defendant 
 from an interim restraining order. 15 And the court may in its dis- 
 cretion fix the terms of the bond where they are not prescribed by 
 statute. 16 Where the United States applying for an injunction 
 gives no bond to indemnify defendant, as a private suitor would 
 be compelled to do, the Federal courts will not grant a preliminary 
 injunction in a case of conflicting allegations, but will suspend 
 injunctive relief until final hearing. 17 
 
 13. Lake Erie & W. R. Co. v. 
 Cluggish, 143 Ind. 347, 42 N. E. 743. 
 
 14. Act Ga. Nov. 7, 1889. re- 
 quired the railroad therein named, in 
 case it ran within five miles of the 
 town of T., to run into that town, if 
 a sum equal to the excess of the cost 
 of that route over any other within 
 the five mile limits should be depos- 
 ited in bank by the citizens of T. 
 when the road reached the limit, sub- 
 ject to the* check of the company 
 when the road was built through 
 them. Held, that, as a condition of 
 the granting of an injunction against 
 the railroad company's violation of 
 the act. the citizens of T. should be 
 required to execute a bond, as soon 
 as the excess is determined, to make 
 the required deposit. Macon & B. 
 R. Co. v. Stamps (Ga.), 11 S. E. 442. 
 Bleckley, C. J., said : " A court of 
 equity may and should always im- 
 pose just terms as a condition to its 
 interference by interlocutory injunc- 
 
 tion in behalf of suitors. The grant- 
 ing and continuing of an injunction 
 is not matter of strict right in the 
 parties but of sound discretion in the 
 judge or the court. In the exercise 
 of such discretion it seems highly in- 
 expedient to hold one of the parties 
 to the litigation absolutely bound, 
 w'lile the other party remains per- 
 fectly free. This would have the ap- 
 pearance of subjecting the former to 
 the will or even the caprice, of the 
 latter." See Salinas v. Aultman, 49 
 S. C. 325, 27 S. E. 407. 
 
 The judge in his discretion 
 may determine the amount of 
 the bond. — New York Bank Note 
 Co. v. Kerr, 77 111. App. 53. 
 
 15. Byam v. Cashman, 78 Cal. 525, 
 21 Pac. 113. 
 
 16. Newell v. Partee, 10 Hump. 
 (Tenn.) 325. 
 
 17. United States v. Jellico, etc., 
 Coal Co.. 43 Fed. 898. 
 
 274
 
 Injunction Bond and Actions on it. 
 
 §162 
 
 § 162. Same subject in Maryland. — Ordinarily an injunction 
 to stay proceedings at law will not be granted without bond and 
 surety given by the plaintiff for injunction to the plaintiff at law. ls 
 But there may be an exception to this general rule where a judg- 
 ment about to be enforced appears to be unwarranted and its en- 
 forcement would be ruinous to a person who had no opportunity 
 to defend; and an injunction may sometimes be granted without 
 bond in favor of an equitable owner of property which is about to 
 be sold to satisfy a judgment against a person who in good faith 
 parted with the property before the judgment was obtained against 
 him. 19 Under the Maryland statute of 1886, the injunction bond 
 
 18. Walsh v. Smith, 3 Bland, Ch. 
 (Md.) 9. 
 
 19. Cape Sable Company's Case, 3 
 Bland, Ch. 606, per Bland, Ch. : " I 
 can discover no error in granting the 
 injunction without bond; if in any 
 case a bond should be dispensed with, 
 this is one, and the decisions of my 
 predecessors in office fully warranted 
 the issuing of this injunction. The 
 time, the manner, the effect, and the 
 immediate ruinous consequences from 
 the hasty and unwarranted judgment, 
 demanded the immediate inteiposi- 
 tion of this court; and unless com- 
 pelled to demand an injunction bond, 
 it should be dispensed with. In the 
 case of Hampsen v. Edelin. 2 H. & J. 
 64, no bond was given to prosecute 
 the injunction that issued. In that 
 case an execution was laid on a piece 
 of land that the complainant had 
 purchased and obtained a bond for 
 the conveyance of. prior to the rendi- 
 tion of the judgment. Also in the 
 case of Stewart v. Yates. 3 Bland, 
 Ch. 615, an injunction issued, with- 
 out bond, to prevent land from be- 
 ing sold under an execution, founded 
 on a judgment against the legal 
 holder of the estate. Tn those cases, 
 as insisted on by the defendant's 
 
 counsel in this case, the injunctions 
 were obtained by him who was no 
 party to the suits at law, and only 
 went to protect particular property 
 from the executions. It is very true, 
 that those injunctions were intended 
 to free particular property from the 
 executions: and the reasons are as- 
 signed in the bills why such property 
 should not be liable to the execu- 
 tions; and no one, for a moment, 
 could doubt but that the same 
 grounds applicable to the whole prop- 
 erty real and personal, which was 
 once completely owned by the defend- 
 ant at law, would be protected, if, 
 prior to the judgment as applicable 
 to the real, or prior to the 
 fieri facias, as applicable to the 
 personal, he had parted with the 
 same, so as to vest the equitable in- 
 terest in him, or them, who should 
 claim the protection of a court of 
 equity. The principle on which those 
 injunctions issued was, that the party 
 applying for them was the equitable 
 owner of the property which was at- 
 tempted to be sold to pay the debts 
 of a person who, before the judg- 
 ments, had bona fide parted with the 
 property. In those cases, it was con- 
 tended, that the complainants were 
 
 275
 
 § 103 Injunction Bond and Actions on it. 
 
 or security is wholly a matter of the court's discretion, and its 
 refusal to require such a bond is not reviewable." In this State 
 there is said to be no statute which expressly directs that a bond 
 shall be given before an injunction to stay execution of a judgment 
 can be issued ; it is left to the discretion of the court, but the univer- 
 sal practice has been to require such bonds except in extreme cases, 
 and generally in double the amount of the judgment to be re- 
 strained, as was provided by the act of 1723. 21 
 
 § 163. Bond as condition precedent to injunction. — In Kansas 
 an injunction order is not operative until the injunction undertak- 
 ing is furnished. 22 An order conditionally granting a temporary 
 injunction is not operative until a bond is filed in conformity with 
 law, and the order of the court or judge granting the same; for the 
 granting of a temporary injunction being largely within the dis- 
 cretion of the court of original jurisdiction, the applicant must 
 comply with the conditions imposed by the court or the injunction 
 conditionally granted will not take effect. 23 In Nebraska it is also 
 decided that the execution of an undertaking is essential before a 
 temporary injunction order can become effective. 24 The North 
 Carolina Code is peremptory, that " the judge shall require, as a 
 condition precedent to the issuing of an injunction, that the clerk 
 
 not, at law, parties; but here as the dertaking, executed by one or more 
 complainants claim in virtue of their sufficient securities." State v. Eg- 
 interest in The Cape Sable Company, gleston, 34 Kan. 714, 10 Pac. 3. 
 against whom the judgment was ren- Where a sheriff is temporarily en- 
 dered, they were parties to that joined from calling an election to de- 
 cause, and as such were not entitled termine upon a permanent county- 
 to an injunction without bond." seat, the injunction to take effect 
 
 20. Commissioners v. School Com- upon the execution of a bond, but the 
 missioners, 77 Md. 283, 26 Atl. 115. bond is not executed, the order al- 
 
 21. Wagner v. Shank, 59 Md. 313, lowing the injunction is void. State 
 328. v. Kearney County Com'rs, 42 Kan. 
 
 22. Gen. Stats., 1889, § 4337; 739, 22 Pac. 735. 
 
 State v. Rush County Com'rs, 35 23. Van Fleet v. Stout, 44 Kan. 
 
 Kan. 150, 10 Pac. 535. The Kansas 523, 24 Pac. 960. 
 
 statute declares that no injunction 24. State v. Green, 48 Neb. 327, 
 
 shall operate "until the party ob- 67 N. W. 162. 
 
 taining the same shall give an un- 
 
 276
 
 Injunction Bond and Actions on it. § 163 
 
 shall take from the plaintiff an undertaking," and it has been held 
 to be error for the court to disregard a provision which was in- 
 tended for the protection of parties against the abuse of the process, 
 and for which error an appellate court would vacate the injunc- 
 tion ; 25 though perhaps the filing of the undertaking in the appellate 
 court might be regarded as a sufficient compliance with the statute. 26 
 In North Carolina before the Code an injunction could not be 
 obtained against a judgment for money except on giving a bond 
 for double the amount of the judgment, but under the Code the 
 amount of the undertaking in such cases is left to the discretion 
 of the judge. 27 Under the Indiana Revised Statutes of 1881, 
 § 1153, declaring that no injunction shall be granted until the 
 party asking it shall give bond for damages and costs, and section 
 1154, providing that when an injunction is granted upon the hear- 
 ing, after a temporary restraining order, a second bond need not 
 be given unless the former shall be deemed insufficient, but that 
 plaintiff and his sureties shall remain liable upon the original 
 undertaking, where, after the granting of a preliminary restrain- 
 ing order, the same is continued until further order by an order 
 of the court which does not mention the bond, the bond remains 
 in force during the continuance, though the order of continuance 
 was made in accordance with an agreement between the parties, 
 since the agreement amounted to nothing more than a waiver of a 
 formal hearing. 28 The plaintiff's failure to give the bond required 
 for a preliminary injunction will not prevent him from obtaining 
 a perpetual injunction upon the final hearing. 29 
 
 25. Miller v. Parker, 73 M. C. 58; 26. Richards v. Baurman 65 N 
 
 Hirsh v. Whitehead, 65 N. C. 516; C. 162. ' 
 
 Sledge v. Blum, 63 N. C. 374. See, 27 Faison v. Mellwaine, 72 N C 
 
 also, Wilson v. Featherstone, 120 N. 312 
 
 C. 449. 27 S. E. 121. See N. C. 28. Stone v. Keller, 4 Ind. App. 
 
 Code, § 341. 436 30 N E m3 
 
 A restraining order issued with- 2 9. Harrison v. Supervisors, 51 
 out the giving of the undertaking re- Wis. 645. See Nicholson v Camp- 
 quired by § 341 of the Code is only bell, 15 Tex. Civ. App. 317, 40 S W 
 irregular and not void. McKay v. 167. 
 Chaplin, 120 N. C. 159, 26 S. E. 701. 
 
 277
 
 §164 
 
 Injunction Bond and Actions on it. 
 
 § 164. Same subject. — The South Carolina Code, though mak- 
 ing it the duty of a judge who grants an injunction to require an 
 undertaking from the plaintiff, does not make the giving or filing 
 of the undertaking a condition precedent to the granting of the 
 injunction order; but the judge may allow the plaintiff a reason- 
 able time within which to file the undertaking. 30 The Tennessee 
 statute requires that the applicants, in order to entitle themselves 
 to the benefit of the writ, shall give bond with good security, in 
 double the amount of the judgments, conditioned to pay the amount 
 of the judgments with interest and costs, or to perform the decree 
 of the court in case the injunction is dissolved, and, also, to pay 
 such damages as may be sustained by the wrongful suing out of 
 the injunction. 31 Section 620 of the New York Code provides 
 that where special provision is not otherwise made by law for the 
 security to be given upon an injunction order " the party applying 
 therefor must give an undertaking," but this requirement is not in 
 the nature of a condition precedent, and the failure to give the 
 undertaking so required is only an irregularity which can be cured 
 
 30. Code Civ. Pro., § 243. pro- 
 vides that " when no provision is 
 made by statute as to security on an 
 injunction, the court or judge shall 
 require a written undertaking on the 
 part of plaintiff, with or without 
 sureties, to the effect that plaintiff 
 will pay to the party enjoined such 
 damages, not exceeding an amount to 
 be specified, as he may sustain by 
 reason of the injunction, if the court 
 shall finally decide that plaintiff was 
 not entitled thereto." Held, that the 
 section does not make it the duty of 
 the judge to exact an undertaking as 
 a condition precedent to the grant of 
 an injunction. In Meinhard v. 
 Youngblood. 37 S. C. 223, 15 S. E. 
 947, Pope, J., said: "Herein injunc- 
 tion proceedings differ from those in 
 nttachment, for in the latter the stat- 
 ute is imperative that such undertak- 
 
 ing shall be given before the attach- 
 ment can legally issue. Not so in 
 cases of injunction. . . . Rule 63 
 of the Circuit Court rules, in con- 
 nection with the rules of law, in the 
 matter of injunctions sustain the ac- 
 tion of the Circuit Court judge in 
 granting 14 days within which the 
 undertaking required of plaintiffs 
 should be filed." 
 
 31. Tenn. Code § 4439. Where the 
 statute does not prescribe the con- 
 ditions of the bond, the judge may in 
 his fiat specify those conditions; and 
 if a bond taken by the master i9 
 broader in its conditions or greater 
 in its penalty than the statute or the 
 fiat requires, it will be good only to 
 the extent required. Hubbard v. Fra- 
 vell, 12 Lea (Tenn.). 304. See, also, 
 Ragan v. Aiken, 9 Lea (Tenn.), 623; 
 Ranning v. Reeves, 2 Tenn. Ch. 267. 
 
 278
 
 Injunction Bond and Actions on it. 
 
 §165 
 
 nunc pro tunc, 32 and for this purpose an undertaking may be al- 
 lowed to be filed on appeal from the order granting the injunction. 33 
 The omission to file the undertaking forthwith is, however,^ a 
 ground for vacating the injunction on the motion of the opposite 
 party. 34 
 
 § 165. Where enforcement of judgments enjoined; in New 
 York.— In order, under the Code, to stay proceedings upon a money 
 judgment the party applying for the injunction must pay into 
 court the amount of the judgment with interest and costs, or in 
 lien thereof give an undertaking for such payment, and must also 
 give an undertaking to pay the party enjoined all damages and 
 costs which may be awarded to him in the injunction suit; 33 but 
 the two undertakings may be contained in the same instrument. 36 
 A judgment entered upon confession is within the above provi- 
 sion, 37 and so is a money judgment operating as a lien upon the 
 enjoiner's land; 38 but an injunction which restrains the sale of 
 plaintiff's property on a judgment and execution against a third 
 person is not within the provision. 39 The failure to furnish such 
 
 32. Manly v. Leggett, 17 N. Y. 
 Supp. 68; O'Donnell v. McMurn, 3 
 Abb. Pr 391. Sections 611-618 pro- 
 vide for cases in which the failure to 
 give the undertaking required is a 
 fatal defect on appeal from the in- 
 junction order, Carpenter v. Keat- 
 ing, 10 Abb. Pr. N. S. 223; and on 
 motion to vacate. Eastman v. Starr, 
 22 Hun. 465. See. also, as to when 
 giving of bond a condition precedent. 
 Mullen v. Martin, 5 App. Div. 450, 
 40 N. Y. Supp. 725. 
 
 In Michigan, How. St., § 6689, 
 provides that no injunction shall is- 
 sue to stay proceedings at law in any 
 personal action, after judgment, 
 unless the party applying for the in- 
 junction shall execute a bond to 
 plaintiff in the proceeding at law in 
 such sum as will secure him against 
 loss by the issuing of the injunction. 
 
 Under this statute it was held that 
 a person claiming property which is 
 about to be sold under an execution 
 cannot obtain a temporary injunction 
 against the sale without filing such 
 bond. Hinkle v. Baldwin (Mich.), 
 53 N. W. 534. 
 
 33. N. Y. Attrition Co. v. Van 
 Tuyl, 2 Hun (N. Y.), 373; Pratt v. 
 Underwood, 4 Civ. Pro. (N. Y.) 167. 
 
 34. General Court Rule 4; John- 
 son v. Casey, 28 How. Pr. (N. Y.) 
 492. 
 
 35. Code Civ. Pro., § 613. 
 
 36. Code Civ. Pro.. § 618. 
 
 37. Farrington v. Freeman, 2 Edw. 
 Ch. (N. Y.) 572. 
 
 38. Rossow v. Bank of Commerce, 
 22 N. Y. W. Dig. 448. 
 
 39. Hegeman v. Wilson, 8 Paige 
 (N. Y.), 29. 
 
 270
 
 § 1C6 Injunction Bond and Actions on it. 
 
 bonds will be fatal to the injunction order both on a motion to 
 vacate, 40 and upon appeal from it. 41 In order after issue joined to 
 enjoin the trial of an action in New York wherein the complaint 
 demands a money judgment, an undertaking must be given to pay 
 the party enjoined, his damages and costs in the enjoined action, 
 and also the damages and costs that may be awarded him in the 
 injunction action; and an injunction shall not be granted after 
 verdict, report, or decision and before judgment, unless a sum 
 sufficient to cover the sum awarded and the costs be first paid into 
 court or an undertaking therefor be given by the applicant for the 
 injunction. 42 
 
 § 166. Same subject; in Iowa. — In Iowa where proceedings to 
 collect a judgment are sought to be enjoined, the injunction bond 
 must be conditioned for the payment of the judgment, and the 
 penalty must be double the amount of the judgment; 43 but this 
 statutory rule has no application where only the sale of certain 
 property is sought to be enjoined. 44 In Texas on the dissolution 
 of an injunction in restraint of a judgment, the judgment creditor 
 is not entitled to a judgment on the injunction bond for the amount 
 of the enjoined judgment; but is entitled to a judgment against 
 the principal debtor and the sureties on the bond for ten per cent, 
 on the amount of the enjoined judgment as damages besides inter- 
 est. 45 In Virginia as early as 1744, it was provided that before an 
 injunction should be granted to restrain proceedings at law in any 
 action, suit, or judgment the party praying the injunction should 
 give a bond with security to satisfy all money, tobacco, and costs 
 then due or which might become due to the plaintiff in the action 
 
 40. Eastman v. Starr, 22 Hun (N. Adams, J.: "The denial of the right 
 *•)) 465. to sell a particular piece of property 
 
 41. Carpenter v. Keating, 10 Abb. under general execution is not, in any 
 Pr. N. S. (N. Y.) 223. proper sense, a denial of the right to 
 
 42. N. Y. Code Civ. Pro., §§ 611, proceed under the judgment." 
 
 6 *2. 45. Fernandez v. Casey, 77 Tex. 
 
 43. Iowa Code, §§ 3396, 3S97. 452, 14 S. W. 149; Texas & New Or- 
 
 44. Hardin v. White, 63 Iowa. 633, leans R. Co. v. White, 57 Tex 132 
 16 N. E. 580, 19 N. E. 822, per 
 
 280
 
 Injunction Bond and Actions on it. §§ 167, 108 
 
 or judgment to be stayed, and this provision was introduced into 
 the Virginia Code of 1819, together with a provision that the 
 party so enjoining should also give bond with security to satisfy 
 all such " costs and damages as shall be awarded in case the in- 
 junction be dissolved." 46 But probably in Virginia, and certainly 
 in West Virginia, the court has no power to require an injunction 
 bond on staying the enforcement of a judgment against executors 
 as such. Such a bond given has no validity, either as a statutory 
 or common law bond. 47 
 
 §167. Same subject; in Arkansas; Illinois. — Formerly in 
 Arkansas in order to enjoin the collection of a judgment the bond 
 required by statute was conditioned that the sureties would abide 
 the decision in the injunction suit and pay all sums of money 
 adjudged against their principal therein, and the damages recover- 
 able on the injunction bond were the amount of the judgment 
 enjoined and the damages assessed on the dissolution of the in- 
 junction. 48 But under the late statute the sureties do not under- 
 take to pay the amount of the enjoined judgment but only the 
 damages the party enjoined may sustain, should the injunction 
 prove to be wrongful. 49 Where a party sued out an injunction to 
 restrain the collection of a void and unjust judgment, which was 
 dissolved, and he immediately filed a second bill for the same pur- 
 pose, which was held sufficient, and in the meantime judgment was 
 recovered on the injunction bond for the amount of the void judg- 
 ment, it was held that as it was inequitable to allow the collection 
 of the void judgment, it was equally so to allow the enforcement 
 of the latter judgment, and that it should be enjoined. 50 
 
 §168. Same subject; in New Jersey. — The New Jersey 
 Chancery Act providing that no injunction shall issue to stay 
 proceedings at law in any personal action after verdict or judg- 
 ment on the defendant's application, unless a deposit be made 
 
 46. State v. Johnson, 28 W. Va. 56, 48. Hunt v. Burton, 18 Ark. 188. 
 61; Lomax v. Picot, 2 Rand. (Va.) 49. Neal v. Taylor, 56 Ark. 521, 20 
 264. S. W. 352. 
 
 47. State v. Johnson, 28 W. Va. 50. Weaver v. Poyer, 79 111. 417. 
 56. 
 
 281
 
 § 168a Injunction Bond and Actions on it. 
 
 or bond given, does not apply to a suit instituted in a court of 
 another State upon a judgment recovered in New Jersey. 51 
 
 § 168a. Bond having force and effect of judgment; statutes. — 
 In Alabama the early statutes gave to every injunction bond the 
 force and effect of a judgment upon the dismissal of the bill and 
 an execution could issue against the obligors. 52 And by an early 
 statute in Texas it was provided that " every bond executed for 
 the purpose of obtaining an injunction, shall on the dissolution of 
 the said injunction, have the force and effect of a judgment, and 
 the party or parties enjoined may take out execution against all 
 the obligators in the bond." Under this statute it was held that 
 it was not error, on the dissolution of an injunction, to enter up 
 judgment against the principal and his sureties in the injunction 
 bond. 53 Under a statute of this character where a bond departs 
 substantially from the form prescribed by the statute, it will not 
 have the attributes intended to be imparted by the statute. 54 A 
 statutory judgment thus resulting has been held to be a judgment 
 against the surety. 55 But under such a statute it has been decided 
 that where several defendants in a judgment at law join in a bill 
 for an injunction, and in the execution of the required statutory 
 bond, and the injunction is perpetuated as to a part of them only 
 and dissolved as to the others, the statute docs not give to the bond 
 the effect of a judgment as against the latter, nor as against the 
 sureties. 56 
 
 51. Cairo, etc., Railroad v. Titus, See Wiswell v. Munroe, 4 Ala. 9, 
 26 N. J. Eq. 94. The eightieth sec- holding that a bond so executed as 
 tion of the New Jersey Chancery Act to enjoin a judgment at law had the 
 prohibiting the granting of an injunc- force and effect of a judgment upon 
 tion to stay proceedings at law unless a dissolution of the injunction, with- 
 the money due be paid into court or out any order of the chancellor to 
 a bond be given, is eminently manda- that effect. 
 
 tory, and a temporary injunction is 53. Western v. Woods, 1 Tex. 1. 
 
 within the prohibition. Phillips v. 54. Hanks v. Horton, 5 Tex. 103. 
 
 Pullen, 45 N. J. Eq. 157, 16 Atl. 915. 55. Dubberly v. Black's Adm'r, 38 
 
 52. Newson v. Thornton Adm'r, 61 Ala. 193. 
 
 Ala. 95; Dubberly v. Black's Adm'r, 56. Hill v. McKenzie, 39 Ala. 314. 
 
 38 Ala. 193. 
 
 282
 
 Injunction Bond and Actions on it. 
 
 169 
 
 § 169. Additional bond or security. — A court of equity, if not 
 limited by statute, having a discretionary power in respect to the 
 amount of the injunction bond, may at any time in the exercise 
 of its discretion require from the complainant an additional bond. 57 
 And additional security may be required, in a proper case, as a 
 condition of continuing an injunction. 08 In most of the States if 
 the sum named in the injunction bond is insufficient to indemnify 
 the defendant, it is the duty of the court, upon his motion, to set 
 aside the injunction unless additional security be given. 59 And 
 when a preliminary injunction has issued in an action brought 
 against a person individually the court cannot, on subsequently 
 bringing in the same person and another as executors, and addi- 
 tional parties defendant and continuing the injunction as against 
 them, permit the injunction bond given in the action as originally 
 instituted to stand, and declare it good and sufficient as to all the 
 
 57. Russell v. Farley, 105 U. S. 
 433, 26 L. Ed. 1060, where a second 
 for $79,000 was required in addition 
 to the first bond for $10,000. 
 
 58. Goldmark v. Kreling, 25 Fed. 
 340. A preliminary injunction was 
 first issued, and afterwards the court 
 ordered the injunction dissolved, un- 
 less plaintiffs should give an under- 
 taking in a much larger sum, which 
 was given. It recited the commence- 
 ment of the suit, and was conditioned 
 " in case said injunction shall issue," 
 etc. The complaint in an action on 
 the undertaking alleged the granting 
 of the injunction and the making of 
 the order requiring a further under- 
 taking, and that in compliance with 
 such order, " and in order to con- 
 tinue in force said injunction," the 
 undertaking in suit was given. The 
 answers denied that defendants 
 caused the undertaking to be filed, 
 and averred that plaintiffs in the in- 
 junction suit caused it to be filed, 
 
 and further averred that defendants 
 had no knowledge of the " order and 
 character " of the prior proceedings 
 in the suit. Held, that if defendants 
 executed the undertaking for the pur- 
 pose mentioned, it is immaterial 
 whether they or their principals 
 caused it to be filed; also that, as the 
 undertaking recited the pendency of 
 the suit, defendants were bound to 
 take notice of the order and charac- 
 ter of the proceedings therein; and 
 therefore that the pleadings ad- 
 mitted that the undertaking was 
 given to continue in force the injunc- 
 tion previously issued, and defend- 
 ants could not contend that the words 
 "shall issue" in the undertaking re- 
 ferred to a final injunction in the 
 suit. Lambert v. Haskell, 80 Cal. 
 611, 22 Pac. 327. 
 
 59. Hayden v. Keith, 32 Minn. 
 277; Leavitt v. Dabney, 40 How. 
 Pr. (N. Y.) 277; Loveland v. Burn- 
 ham, 1 Barb. Ch. (N. Y.) 65. 
 
 283
 
 § 170 Injunction Bond and Action- <>\ it. 
 
 defendants, but must require a new bond or undertaking.* A 
 certified check may be accepted by the court in lieu of an injunc- 
 tion bond, and this, even after the injunction ordered has been 
 dissolved for want of a sufficient bond. 61 
 
 § 170. Construction of bond. — An injunction bond must be 
 construed according to the statute in force when it was executed, 
 and not according to a statute which, though enacted before, did 
 not take effect until after, the execution of the bond ; the statute 
 and its construction enter into and form part of the bond so as to 
 determine the liability of the sureties, and that liability cannot be 
 extended by the stipulations of the parties to the injunction suit." 
 The undertaking as to damages need not be confined to the defend- 
 ant restrained but may extend to any defendant though not re- 
 strained who asks for it, but not to a defendant who does not ask 
 for it, and in particular not to one who has not been served and 
 has not appeared. 63 If the damages to the different parties en- 
 joined are clearly several, the injunction bond will be held to be 
 several though its language would in ordinary cases indicate merely 
 an obligation to the defendants jointly. 64 Words in the condition 
 of a bond which are repugnant to the clause of indemnity are void 
 and may be rejected as mere surplusage, thus not affecting the 
 validity of a bond which is otherwise sufficient. 6 " An injunction 
 bond taken in Alabama in 1863 by a register in chancery, in pur- 
 suance of an order of the chancellor granting the injunction, was 
 not void on the ground that those officers belonged to a government 
 in rebellion against the United States, for the acts of the Alabama 
 
 60. Bergmann v. Salmon, 59 Hun injunction, the judge shall require a 
 (N. Y.), 295, 23 N. Y. S. 482. bond with or without sureties, it 
 
 61. Goldmark v. Kreling, 25 Fed. cannot be assigned as error that non- 
 349, resident plaintiffs were permitted to 
 
 62. Mix v. Vail, 86 111. 40. give bond without sureties. Mein- 
 
 63. Tucker v. New Brunswick hard v. Strickland, 37 S. C. 223, 7 
 Trading Co., L. R. 44 Ch. D. 249. S. E. 838. 
 
 Under Code Civ. Pro. S. C, § 245, 64. Sturgis v. Knapp, 33 Vt. 486. 
 
 providing that, where no provision 65. Conner v. Paxson, 1 Blackf. 
 
 is made by statute as to security on (Ind.) 207. 
 
 284
 
 Injunction Bond and Actions on it. § 171 
 
 courts and their officers during the Civil War were not void merely 
 because of the rebellion. 66 
 
 § 171. Same subject. — If an injunction is granted on condition 
 that a bond of a specified amount be filed, and the bond is filed 
 with no other order as to payment of damages, the defendant can 
 recover no greater amount than the penalty of the bond. 67 Under 
 a Code provision that if the court does not prescribe the terms of 
 an injunction bond, the terms shall be that the obligor will pay to 
 the person enjoined such damages as he may sustain, if it be finally 
 decided that the injunction ought not to have been granted, it is 
 held that a bond, conditioned to be paid if the injunction be 
 adjudged wrongfully obtained, is in substance such as is required, 
 and a right of action accrues thereon at once when the injunction 
 is dissolved. 68 The fact tlhat the court granting an injunction had 
 no jurisdiction, and that the injunction was absolutely void, does 
 not make the injunction bond void, so as to defeat defendant's right 
 to recover thereon for attorney's fees and other expenses incurred 
 by him in resisting the application for the injunction and procuring 
 its dissolution. 69 In North Carolina it has been decided that a 
 bond required by the Code being for the sole purpose of indemni- 
 fying the party enjoined, is not void because it does not specify 
 a sum in which the obligors are bound, and such an omission does 
 not enable the surety to impeach his voluntary undertaking. 70 
 
 66. Estes v. Prince, 47 Ala. 269; If an injunction against a 
 
 Griffin v. Ryland, 45 Ala. 688. money judgment is granted " on 
 
 67. Glover v. McGaffey, 56 Vt. 294, the usual terms," it is granted upon 
 per Taft, J. : " If the order had been the terms of giving a bond with con- 
 made that the injunction should issue dition as prescribed by law; and if 
 upon condition that the orators pay the penalty is the ordinary one of 
 all the damages sustained by the de- about double the amount of the judg- 
 fendants, the case might merit a dif- ment, the bond should be construed 
 ferent conclusion, but no such order as in compliance with the law. Har- 
 was made and the parties must abide man v. Howe, 27 Gratt. (Va.) 676. 
 by the law as established in Sturgis 69. Robertson v. Smith, 129 Ind. 
 v. Knapp, 33 Vt. 486, 36 Vt. 439." 422, 28 N. E. 857, distinguishing Jen- 
 See Ciniotti TJnhairing Co. v. Amer- kins v. Parkhill, 25 Ind. 473. 
 
 ican Fur R. Co., 158 Fed. 171. 70. North Carolina Gold Co. v. 
 
 68. Alexander v. Gish. 88 Ky. 13, Ore Co., 79 N. C. 48. 
 9 S. W. 801. 
 
 285
 
 172 
 
 Injunction Bond and Actions ox it. 
 
 § 172. Construction of bond continued. — The contracting 
 
 clauses of the injunction bond are to be construed in accordance 
 with general rules for the interpretation of contracts and so as to 
 make the bond capable of being carried into i ff< cl if it can be 
 without violating the intention of the parties. 71 The validity of 
 the bond depends largely upon its conformity to the requirements 
 prescribed by the order or writ of injunction. 72 In this connection 
 it is decided that an order requiring a bond to be given in favor 
 
 71. Lambert v. Haskell, 80 Cal. 
 611, 22 Pac. 327. 
 
 72. Upon the commencement of a 
 suit the bill praying for an injunc- 
 tion pending the hearing, which on 
 final hearing should be made perpet- 
 ual, the court granted an order to 
 show cause why the temporary in- 
 junction should not be granted as 
 prayed for, and also ordered that the 
 defendants be restrained from com- 
 mitting the acts until the decision 
 upon said motion; said preliminary 
 order to take effect upon the execu- 
 tion of a bond conditioned to pay 
 such damages as defendants might 
 sustain by reason of said restraining 
 order. A bond was executed reciting 
 the filing of the complaint, condi- 
 tioned as follows : " In consideration 
 of the premises, and of the issuing 
 of said writ of injunction," the par- 
 ties promise " that, in case said writ 
 shall issue," they will pay damages, 
 etc. Upon the motion to show cause 
 the bill was dismissed for want of 
 jurisdiction. Held, that the injunc- 
 tion for which the bond was given 
 was not the writ directed to be issued 
 by the preliminary order, and that 
 no action could be maintained on the 
 bond. Byam v. Cashman, 78 Cal. 
 525, 21 Pac. 113. Under an order of 
 the United States District Court that 
 a bond be given by plaintiffs " to 
 
 save the parties harmless from the 
 effect of the injunction issued in this 
 cause," a bond was given, conditioned 
 to pay " to the said . . . defend- 
 ant in said injunction all such dam- 
 ages as he may recover against us, 
 in case it should be decided that the 
 said writ of injunction was wrong- 
 fully issued." Held, that the bond 
 should be construed to mean that 
 such damages would be paid as the 
 obligee should recover by a suit on 
 the bond itself, and that, thus con- 
 strued, the bond was valid and con- 
 formable to the order, and covered 
 all damages arising from the wrong- 
 ful issue of the injunction. Meyers v. 
 Block, 120 U. S. 206, 30 L. Ed. 642, 
 7 S. Ct. 525. Under an order requir- 
 ing the party suing out an injunction 
 to give bond, conditioned to pay all 
 such costs and damages as may be 
 awarded should the injunction be dis- 
 solved, a bond, conditioned to pay any 
 decree or order that may be awarded, 
 and all costs and damages incurred 
 or sustained if the injunction be dis- 
 solved, though more onerous in its 
 terms than required by the order, is 
 a valid common-law bond. Snyder, 
 J., dissenting. State v. Purcell, 31 
 W. Va. 44, 5 S. E. 301. 
 
 Compare as to statement in text, 
 Blankenship v. Ely, 98 Va. 359, 36 
 S. E. 484. 
 
 286
 
 Injunction Bond and Actions on it § 172a 
 
 of each of several defendants is not complied with by giving a 
 bond in favor of the defendants jointly. 73 
 
 § 172a. Necessity of compliance with statute. — A strictly 
 literal compliance with the provisions of a statute as to injunction 
 bonds is not essential to their validity, as the object of most statutes 
 of this character is to compel complainant to secure from loss or 
 damage the party against whom he obtains an injunction. 74 A 
 statutory bond or undertaking beyond what is required by the 
 statute is to that extent, however, without consideration and in- 
 operative. 75 So the insertion of conditions in an injunction bond 
 not required by law, but not against law, will not vitiate those 
 that are required by law. 76 And an injunction bond conditioned 
 to pay sums not expressly required by the statute to be secured 
 is nevertheless good. 77 And though the conditions of an injunction 
 bond are not so extensive as the statute requires, yet, if it contains 
 a material part of the condition required, the bond is not void, 
 but binds the obligors to the extent of such condition or conditions, 
 and where the bond contains some conditions or promises not 
 required by the statute, and some of those which are required, it 
 is valid and binding to the extent of the latter. 78 So unless a bond 
 contravenes the policy of the law, or is repugnant to some pro- 
 vision of a st'atute it is valid at common law notwithstanding an 
 attempt may have been made to execute it pursuant to a statute 
 with the terms of which it does not strictly comply. 79 A condition 
 in an injunction bond to pay the obligees " all damages they may 
 sustain by the suing out of said injunction, if the same is dissolved, 
 
 73. Speyrer v. Miller, 108 La. 204, (Ky.) 217. See Hopkin's Admr. v. 
 32 So. 524, 61 L. R. A. 781. Morgan, 7 T. B. Mon. (Ky.) 1; Bar- 
 
 74. Scott v. Fowler, 7 Ark. 299. rett v. Bowers, 87 Me. 185, 32 Atl. 
 
 75. Lambert v. Haskell, 80 Cal. 871. 
 
 611, 620, 22 Pac. 327; Powers v. 77. Jameson v. Kelly, 1 Bibb. 
 
 Crane, 67 Cal. 65; People v. Ca- (Ky.) 479. 
 
 bannes, 20 Cal. 525. 78. Holliday's Ex'ers v. Myers, 11 
 
 The granting of tHe injnnc- W. Va. 276. 
 
 tion is a sufficient consideration 79. Babcock v. Reeves (Fla. 1907), 
 
 for the bond. Wanless v. West Chi- 43 So. 21; Barnes v. Brookman, 107 
 
 cago St. R. Co., 77 111. App. 120. 111. 317; Underhill v. Spencer, 25 
 
 76. Johnson v. Vaughan, 9 B. Mon. Kan. 71. 
 
 287
 
 §§ 172b, 173 Injunction Bond and Actions on it. 
 
 then this obligation to remain in full force and effect," though 
 awkward, does not avoid the bond. 80 
 
 § 172b. Effect of errors and omissions in bond. — A bond is not 
 void because it specifies no amount in which the signers to it are 
 bound. 81 Where by a clerical inadvertence at the time of signing 
 a bond it was nof filled up with the amount fixed as a penalty, the 
 law implies that the bond was given for the sum fixed by the order, 
 and the principal and sureties will be bound thereby for that 
 amount. 82 And where the word dollars is omitted from the penalty 
 of a bond and is obviously left out by mistake, the bond will be 
 treated as if the word was in it. 83 And a bond voluntarily given 
 is not rendered void because of the factl that it was signed by one 
 surety when the order was that it be executed by " sureties." M 
 Again, if a bond was in fact executed before the court clerk as re- 
 quired by statute, it is not vitiated by an erroneous memorandum 
 of the clerk that it was executed in the presence of the court on a 
 certain day, and it appears from the court records that the court 
 did not sit on that day. 85 A misrecital in the condition of an in- 
 junction bond as to the amount of the judgment enjoined by an 
 injunction bill, may be corrected by the bill, where the bond con- 
 tains a plain reference to it upon the principle that that is certain 
 which can be made certain. 86 
 
 § 173. Execution of injunction bond by applicant. — Under the 
 Louisiana Code of Practice the defendant to an injunction is 
 entitled to have a bond executed in his favor and signed by the 
 
 80. Washington v. Timberlake, 74 82. Mason v. Fuller, 27 La. Ann. 
 Ala. 259. But an action cannot be 68. 
 
 maintained on a bond the penalty of 83. Harman v. Howe, 27 Gratt. 
 
 which is left blank; nor can the de- (Va.) 676. 
 
 feet be remedied by parol evidence as 84. Gyger v. Courtney, 59 Neb. 
 
 to what sum should have been in- 555, 81 N. W. 437. 
 
 serted. Copeland v. Cunningham, 63 85. Harman v. Howe, 27 Gratt. 
 
 Ala. 394. (Va.) 676. 
 
 81. North Carolina Gold A. Co. v. 86. Williamson's Admrs. v. Hall, 
 North Carolina Ore D. Co., 79 N. C. 1 Ohio St. 190. 
 
 48. 
 
 288
 
 Injunction Bond and Actions on it. § 174 
 
 plaintiff or his duly authorized agent. An attorney at law, unless 
 specially authorized, or unless his client is absent, has no authority 
 to sign the bond. 87 Under the Pennsylvania statute providing that 
 " no injunction shall be issued until the party applying shall have 
 given bond with sufficient sureties," the applicant must execute 
 it, and therefore it was held that the State could not have an in- 
 junction, there being no organ of the government authorized to 
 execute the injunction bond for her. 88 Under the Kansas statute 
 which declares that no injunction shall operate " until the party 
 obtaining the same shall give an undertaking executed by one or 
 more sufficient sureties," the party himself need not sign the bond ; 89 
 and this is the rule also in Colorado. 90 It is not material that the 
 name of the surety should appear in the body of the bond. 91 In 
 an action on an injunction bond, where a verified answer denies 
 execution of the bond, it is error to render judgment for plaintiff 
 without proof of its execution.' 2 
 
 § 174. Enforcing State bond in Federal courts. — The power 
 of the Circuit Court of the United States to deal with injunction 
 bonds which may come to it from a State court is not, governed 
 by the laws or practice of the State in which it sits, but by the 
 Federal rules of practice, and when those are silent by the prac- 
 tice of the High Court of Chancery in England prevailing when 
 those rules were adopted, so far as the same may be reasonably 
 applied. 93 Even if the Federal Circuit Court has the power to 
 have the damages caused by an injunction assessed under its own 
 direction, a question which does not seem to be settled in the 
 
 87. Gauthier v. Gardenal, 44 La. 92. Jones v. Ross, 48 Kan. 474, 29 
 Ann. 884, 11 So. 463; Louisiana Pac. 680, An injunction bond must 
 Bank v. Wilson, 19 La. Ann. 3; be acknowledged by the obligors 
 Goodin v. Allen, 12 La. Ann. 448. therein, or must be proved by a sub- 
 
 88. Commonwealth v. Franklin scribing witness to the same or it 
 Canal Co., 21 Pa. St. 117, 130. will be invalid, and the injunction 
 
 89 State v. Eggleston, 34 Kan. issued thereon will be irregular. 
 ?14 Loveland v. Burnham (1845), 1 Barb. 
 
 90. Smith v. Atkinson, 18 Colo. Ui. 65. 
 
 255 32 Pac 425. 93 R" sse11 v - Farley, 105 U. S. 
 
 91. Griffin v. Wallace, 66 Ind. 410. 433, 437, 26 L. Ed. 1060. 
 
 289 
 19
 
 §175 
 
 Injunction Bond and Actions on it. 
 
 affirmative, there is no doubt that in most eases it is more suitable 
 and convenient to leave the party who has been enjoined to his 
 action at law on the injunction bond. 91 
 
 § 175. Bond essential to recovery of injunction damages. — 
 Where a party in good faith and on a fair representation of the 
 facts procures a writ or order of injunction he is not liable in an 
 action for the damages which the injunction has caused to the 
 person enjoined, unless he has given a bond or other security for 
 the payment of such damages. In other words, in the absence of 
 such a security the defendant has no remedy for any damages he 
 may sustain from the issuing of the injunction unless the conduct 
 of the plaintiff has been such as to give ground for an action for 
 malicious prosecution. 95 So in a recent case in Massachusetts it is 
 decided that no bond having been ordered or given, the court cor- 
 rectly ruled that the defendants were not entitled to an assessment 
 
 94. Russell v. Farley, 105 U. S. 
 433, 446, 26 L. Ed. 1060; Merry- 
 field v. Jones, 2 Curtis C. C. 306. 
 
 95. Palmer v. Foley, 71 N. Y. 106, 
 per Folger, J.: "Such is the indica- 
 tion of the remarks of the chancellor 
 in Cayuga Bridge Co. v. Magee, 2 
 Paige, 116-122. In other States it 
 has been intimated or expressly held 
 that where there is no order or bond 
 or other security for the payment of 
 damages, there is no obligation on 
 the part of the plaintilf to pay them. 
 Sturgis v. Knapp, 33 Vt. 486, 522; 
 Lexington, etc., R. Co. v. Applegate, 
 8 Dana (Ky.), 289. This is upon the 
 rule that anyone may proceed to en- 
 force a legal right in a civil action; 
 and that though he did it mali- 
 ciously, he is not liable therefor, if 
 there be probable cause or ground 
 for it. Warren v. Matthews, 6 Mod. 
 73. For, in a civil action the defend- 
 ant has his costs, and the plaintiff 
 was once amerciable pro falso da- 
 
 more, and it is a claim of right. Sa- 
 vil v. Roberts, 1 Salk. 14. And costs 
 were given by statute in place of the 
 amerciament. Where a party in good 
 faith and on a fair presentation of 
 the facts to a court, or to a judicial 
 officer, procures a writ or order of 
 injunction, he is not liable in an ac- 
 tion for the damages which the in- 
 junction has caused to the person en- 
 joined. Such is the rule as to any 
 process, or order in the nature of 
 process thus procured. Daniels v. 
 Fielding, 16 M. & W. 200. Where 
 process sued out by a party is after- 
 wards set aside for error, the party 
 is not liable in an action for dam- 
 ages; where it has been set aside for 
 irregularity, or bad faith in obtain- 
 ing it, he may be. Williams v. Smith, 
 14 Com. Bench (N. S.), 596; 108 
 Eng. Com. L. R. 594. See, also, Mil- 
 ler v. Adams, 52 N. Y. 409; Carl v. 
 Ayers, 53 N. Y. 14." 
 
 290
 
 Injunction Bond and Actions on it. 
 
 § 176 
 
 of the damages sustained by them by reason of an injunction re- 
 straining them from disposing of certain patents which by the final 
 decree they were allowed to retain. 96 And the same rule prevails 
 in the Federal courts. 97 On the dissolution of an injunction, or 
 reversal by the Supreme Court of the order granting it, no dam- 
 ages can be assessed defendant where no bond therefor has been 
 given by plaintiff. 98 
 
 §176. Same subject; in Minnesota, Kentucky, Pennsylvania. 
 
 — In Minnesota, an action upon the bond required from plaintiff 
 upon granting him an injunction is the only remedy of a defendant 
 for the recovery of his damages caused by the injunction where 
 plaintiff was not entitled to it, unless it was sued maliciously and 
 without probable cause. The action on the bond is not cumulative 
 but the exclusive remedy of the defendant for his damages. 99 In 
 
 96. American Circular L. Co. v. 
 Wilson (Mass. 1908), 84 N. E. 133. 
 
 97. Meyers v. Block, 120 U. S. 206, 
 211, 7 S. Ct. 525, where it was held 
 that without a bond the defendant 
 could not recover damages unless he 
 made out a case of malicious prosecu- 
 tion. 
 
 98. St. Louis v. St. Louis Gas 
 Light Co., 82 Mo. 349. Damages for 
 wrongfully obtaining a temporary in- 
 junction cannot be recovered, where 
 malice or want of probable cause are 
 not alleged or proved. The remedy is 
 on the injunction bond. Campbell v. 
 Carroll, 35 Mo. App. 640. Where an 
 administrator recovered judgment for 
 a debt due the estate, but was en- 
 joined by the judgment debtor from 
 collecting the same, if the injunction 
 should be dissolved, and the admin- 
 istrator permitted to collect the debt, 
 it should be done by a suit on the in- 
 junction bond. Fauber v. Gentry, 89 
 Va. 312, 15 S. E. 899. 
 
 99. Hayden v. Keith, 32 Minn. 
 277, per Vanderburgh, J.: "The 
 
 plaintiffs contend .that when the 
 court, pursuant to the statute, orders 
 the writ to issue, the right to the 
 actual damages accrues as an inci- 
 dent to the allowance and issuance 
 of the process, whether a bond is filed 
 or not, and that in cuse a bond with 
 sureties is filed as required by the 
 statute, it is to be regarded simply 
 as further or additional security for 
 such damages. W are unable to ab- 
 sent to this. The bond is not cumu 
 lative, but the only security of the 
 defendant in the injunction suit. 
 Lawton v. Green, 64 N. Y. 326. Gen. 
 St. 1878, ch. 66, § 203, is a transcript 
 of section 222, N. Y. Code, which 
 was substituted for rule 31 of the 
 court of chancery in tbat State, from 
 which rule 7, Minnesota Territorial 
 District Court (equity side) appears 
 to have been copied. Rules of Prac- 
 tice, 1 Minn. 461. Prior to the adop- 
 tion of that rule the defendant was 
 remediless for any damages suffered 
 by reason of the issuance of an in- 
 junction, unless maliciously caused to 
 
 291
 
 §l7Ga 
 
 Injunction Bond and Actions on it. 
 
 Kentucky, the bond is equally essential to the recovery of the 
 damages caused to defendant by the injunction. 1 In Pennsylvania, 
 the defendant's only remedy for damages is on the injunction 
 bond ; if he desires to recover outside of the bond he must show 
 malico and want of probable cause. 2 
 
 § I7(>a. Action on bond as affected by malice; want of prob- 
 able cause. — In an early case in Alabama it is decided that an 
 action may be maintained on an injunction bond without a previous 
 action on the case to ascertain the damages occasioned by the vexa- 
 tious suing out of the writ. 3 And it was also decided in this case 
 that an action of debt on an injunction bond cannot be maintained 
 to recover damages occasioned by the suing out of the writ, unless 
 the injunction was sued out vexatiously. 4 And an early case in 
 North Carolina is authority for the doctrine that where it appears 
 that the party who sued out the injunction really and bona fide 
 entertained the belief that he had just grounds for his suit, the 
 idea of malice is negatived, and the action upon the bond cannot 
 be supported. 5 The rule as to the effect of bad faith in respect to 
 
 be issued. The sole remedy is. there- 
 fore, that which is furnished by the 
 statute upon the bond. The party 
 aggrieved must therefore bring his 
 action upon it, and his recovery must 
 be limited by the amount specified in 
 the bond. Lawton v. Green, supra; 
 Cayuga Bridge Co. v. Magee, 2 Paige, 
 116, 121." 
 
 1. Lexington, etc., R. Co. v. Apple- 
 gate, 8 Dana. Ky. 289, 310, per Rob- 
 ertson, C. J.: "The chancellor 
 granted the injunction without re- 
 quiring any bond or other security. 
 Whether this was proper or not we 
 need not now determine. But in this 
 state of the case, if, as may be pre- 
 sumed in the absence of proof to the 
 contrary., the appellees filed their bill, 
 obtained the injunction and prose- 
 cuted the suit in good faith, be- 
 lieving that the railway or the use 
 
 made of it by the company was a 
 nuisance operating to their private 
 injury, it is our opinion that they 
 are not, according to any adjudged 
 case or established principle of equity 
 or law, responsible for damages. As 
 they have never undertaken to pay 
 any damages in the event of an ulti- 
 mate dissolution of their injunction, 
 it seems to us that they could now be 
 made liable only for a malicious pros- 
 ecution." 
 
 2. Hutchins v. Rogers, 22 W. N. 
 Cas. 79. 
 
 3. Garrett v. Logan, 19 Ala. 344. 
 
 4. Garrett v. Logan, 19 Ala. 344. 
 
 5. Falls v. McAfee, 24 N. C. 236, 
 holding that in an action upon a 
 bond, the condition of which is to 
 indemnify the plaintiffs " for all dam- 
 ages they might sustain by reason of 
 the wrongful suing out of an injunc* 
 
 292
 
 Injunction Bond and Actions on it. 
 
 §17' 
 
 an action on the bond is said to be well stated in a New Jersey 
 case. 6 In an early case in Alabama, however, it is decided that 
 suit upon an injunction bond may be prosecuted after the injunc- 
 tion is dissolved for any violation of its provisions without respect 
 to probable cause which existed for suing out the injunction. 7 
 
 § 177. Action for damages on bond; when accrues. — Upon a 
 final judgment dissolving an injunction, a right of action upon the 
 injunction bond immediately follows, unless the judgment is 
 superseded. 8 And a right of action for damages does not accrue on 
 an undertaking given on the issue of a temporary injunction, in a 
 suit for a perpetual injunction, until a final judgment in such suit, 
 
 tion " by the defendants to stop the 
 plaintiffs from working a certain 
 gold mine, it is necessary for the 
 plaintiffs to show a want of prob- 
 able cause for the former suit, and 
 also, in a legal sense, malice in bring- 
 ing it. 
 
 6. " That the injunction was dis- 
 solved is not of itself evidence that 
 he was not equitaoly entitled to it, 
 and though it may have been im- 
 providently granted and for that 
 cause be dissolved before answer, that 
 will not, if the case is fairly pre- 
 sented by the bill and verification, 
 entitle the defendant to whom it is 
 given to look to it for damages. But 
 if the application be actually or pre- 
 sumably mala fide, as for example, if 
 the bill presents grounds for relief by 
 injunction, which have no existence, 
 or distort or falsely color facts or 
 omit facts in the knowledge of the 
 complainant, or of which he might or 
 in fairness ougnt to have informed 
 himself, and which would have had 
 an important bearing against grant- 
 ing the injunction, if stated in the 
 bill, in short, if the application be 
 disingenuous, mala fide, or made with- 
 out due regard to the rights of the 
 
 court or the defendant in the appli- 
 cation, the complainant is to be re* 
 garded as not having been equitably 
 entitled to the injunction. A com- 
 plainant may come into court for a 
 discovery, and on that ground pray 
 an injunction. If the discovery be 
 made and the result be adverse to 
 him, he may nevertheless have been 
 equitably entitled to an injunction. 
 The object of the rule is to secure 
 bona fides in the application, and to 
 provide indemnity to the party en- 
 joined, against the effects of an in- 
 junction unfairly obtained." Smith 
 v. Kuhl, 26 N. J. Eq. 97, 98. See, 
 also, Coosa w Min. Co. v. Carolina 
 Min. Co., 75 x'ed. 860, wherein the 
 rule is said to be well stated in the 
 above words. 
 
 7. Cox. v. Taylor's Admr., 10 B. 
 Mon. (Ky.) 17, holding that the fact 
 that an injunction bond has been 
 given does not merge any cause of 
 action given by the common law for 
 maliciously suing without probable 
 cause, any more than does a sheriff's 
 official bond. 
 
 8. Alexander v. Gish, 88 Ky. 13, 9 
 S. W. 801. 
 
 293
 
 §177 
 
 Injunction Bond and Actions on it. 
 
 though the temporary injunction has been dissolved, on motion. 
 ]n such a case, an action brought before final judgment in the in- 
 junction suit is premature, and cannot be maintained. 9 So, until 
 there has been a final disposition of the suit in which the injunction 
 bond was executed, an action cannot be maintained upon the bond ; 
 nor does it alter the case that an order of partial dissolution of the 
 injunction has been made and affirmed on appeal, if the case has 
 been remanded by the appellate court for further proceedings. 10 
 And where an injunction, obtained by plaintiff at law, in order to 
 preserve property in litigation until the result of the suit at law, is 
 
 9. California. — Clark v. Clayton, 
 61 Cal. 634. 
 
 Colorado. — Kilpatrick v. Haley, 6 
 Colo. App. 407, 41 Pac. 508. 
 
 Iowa. — Bank of Monroe v. Gifford 
 65 Iowa, 648, 22 K W. 913. 
 
 Kansas. — Jones v. Ross, 48 Kan. 
 474, 29 Pac. 680; Brown v. Galena 
 Min. & S. Co., 32 Kan. 528, 4 Pac. 
 1013. 
 
 Kentucky. — City of Newport v. Mc- 
 Arthur, 4 Ky. Law Rep. 632. 
 
 Maryland. — Gray v. Veirs, 33 Md. 
 159. 
 
 Mississippi. — Goodbar v. Dunn, 61 
 Miss. 624; Penny v. Holberg, 53 
 Miss. 567. 
 
 Missouri. — Cohn v. Lehman, 93 Mo. 
 574, 6 S. W. 267. 
 
 Nebraska. — Browne v. Edwards & 
 M. L. Co., 44 Neb. 361, 62 N. W. 1070, 
 
 Ohio.— Columbus, H. V. & T. R. 
 Co. v. Burke, 54 Ohio St. 98, 43 N. 
 E. 282, 32 L. R. A. 329; Welch v. 
 Benham, 6 Ohio N. P. 33, 9 Ohio C 
 P. Dec. 70. 
 
 Where the complainant in a 
 bill for injunction dies and the 
 suit is revived in the name of his 
 administrator and on final hearing 
 the injunction is dissolved and a de- 
 cree rendered against the adminis- 
 trator for the amount of the judg- 
 
 ment at law from which he appeals 
 and a stay of proceedings is ordered, 
 the defendant in the bill for injunc- 
 tion cannot maintain an action on the 
 injunction bond while such appeal is 
 pending and undetermined, and, in 
 such a case suit is brought on the 
 bond, during the pendency of the ap- 
 peal, the defendant may plead its pen- 
 dency in abatement or in bar of the 
 action. Fowler v. Scott, 11 Ark. 675. 
 
 See, also, Gray v. Veirs, 
 
 Sufficiency of complaint. — In 
 an action on a bond given to obtain 
 a temporary injunction against the 
 sale of property levied on under cer 
 tain judgments, the purpose of which 
 is to recover attorneys' fees and other 
 expenses in obtaining a dissolut ion of 
 the injunction, a complaint, stating 
 that the judgments had been in all 
 things affirmed, and that the claim 
 was then due, sufficiently shows the 
 final disposition of the injunction in 
 some manner in the Supreme Court, 
 and that the action, therefore, was 
 not prematurely brought, although it 
 is not alleged that the time for re- 
 hearing has expired. Midland Ry. 
 Co. v. Stevenson, 6 Ind. App. 207, 
 702, 33 N. E. 254, 256. 
 
 10. Penny v. Holberg, 53 Miss. 
 567. 
 
 294
 
 Injunction Bond and Actions on it. § 177a 
 
 dissolved, no reference to ascertain the damages, or action therefor 
 on the injunction bond, can be had until after the determination 
 of the suit at law. 11 And in an early case in New York it was 
 decided that a report of a referee made upon the question of dam- 
 ages consequent upon the dissolving of an injunction must be 
 confirmed before the court can entertain an application to prosecute 
 the undertaking given upon the issuing of the injunction. 12 Where 
 the undertaking is that the obligors shall be liable for the damages 
 sustained by the party enjoined, " if it be finally decided the in- 
 junction ought not to have been granted," the final decision is the 
 final judgment in the original action, by which the whole merits 
 thereof are finally decided and disposed of. 13 But the voluntary 
 dismissal by the plaintiff of the original suit, and the entry of 
 judgment of dismissal against him is the final judgment in that 
 suit, and determines the liability of the makers of the injunction 
 bond as effectually as would a judgment upon an actual trial upon 
 the merits. 14 And where the relief asked for in the bill is refused 
 it is decided that a dismissal of the bill is not necessarily a pre- 
 requisite to an assessment of the damages on the bond. 15 Nor i3 
 it a prerequisite to an action on the bond that there should be a 
 demand on the principal and a refusal by him to pay. 16 
 
 § 177a. Same subject; evidence; burden of proof. — In an 
 action for damages on an injunction bond, it is error to render 
 judgment for plaintiff in the absence of evidence that the injunc- 
 
 11. Thompson v. McNair, 64 N. C. A party has a right to insti- 
 448; Falls v. McAfee, 2 Ired. 236. tute an independent action for 
 
 12. Griffing v. Slate, 5 How. Prac. damages for the wrongful suing out 
 (N. Y.) 205. of an injunction where there haa 
 
 13. Jones v. Ross, 48 Kan. 474, been a dismissal of the suit. Clev- 
 29 Pac. 68; Bemis v. Gannett, 8 Neb. enger v. Cariker (Tex. Civ. App., 
 236; Mills v. Hoag, 7 Paige Ch. 18. 1908), 110 S. W. 794. 
 
 14. Brown v. Galena Mining & S. 15. Winslow v. Mulchey (Tenn. 
 Co., 32 Kan. 528, 4 Pac. 1013. See. Ch.), 35 S. W. 762. 
 
 also, Tullock v. Mulvane, 61 Kan. 16. Montana Min. Co. v. St. Louis 
 
 650, 60 Pac. 749. holding that an Min. & M. Co., 19 Mont. 313, 48> 
 
 order of court dismissing the proceed- Pac. 305. 
 ing for an injunction is a final de- 
 cision. 
 
 295
 
 §§ 178, 179 Injunction Bond and Actions on it. 
 
 tion suit has been disposed of. 17 In such an action the plaintiff 
 makes out a prima facie case by establishing the dissolution of the 
 temporary injunction and the dismissal of the original suit, and 
 the burden is on defendant to show that the injunction was right- 
 fully issued. 18 
 
 § 178. Same subject; evidence of damage. — The pendency of 
 an action of ejectment and for mesne profits in another court, i9 
 no bar to an action by the same plaintiff against the same defendant 
 and his sureties on an injunction bond, for having wrongfully 
 enjoined him from maintaining an action for possession of the 
 same premises. 19 In Mississippi, the insertion in the decree of 
 dissolution of the clause, " without prejudice to the defendant's 
 right to sue for damages on the injunction bond," confers upon 
 him no new right of action on the injunction bond, but merely 
 furnishes evidence that the damages were not adjudicated by the 
 court at the time of dissolution. 20 On dissolution of the injunc- 
 tion, his action on the bond accrues, with or without such a pro- 
 vision in the decree. 21 
 
 § 179. Breach of condition of bond. — The bond or undertaking 
 to be given on the granting of a temporary injunction, should con- 
 form to the requirements of the statute, and as the statutes, 
 prescribing and regulating such bonds vary somewhat in the several 
 States, the breach of such bonds does not always occur in the same 
 manner. 22 Thus where, under the New York Code, a temporary 
 
 17. Towle v. Leacox, 59 Iowa, 42, 18. Findlay v. Caraon, 97 Iowa, 
 
 12 N. W. 764, holding that the 537, 66 N. W. 759. 
 
 judge's minutes upon his calendar 19. Large v. Steer, 121 Pa. St. 30, 
 
 that the suit has been dismissed are 13 Atl. 490. 
 
 not proper evidence of that fact. 20. Davis v. Hart, 66 Miss. 642, 6 
 
 Must show injunction dis- So. 318. 
 
 solved. — It is essential to a recov- 21. Penny v. Holberg, 53 Miss. 
 
 ery on the injunction bond to show 567; Goodbar v. Dunn, 61 Miss. 624. 
 
 that the injunction has been dis- 22. Palmer v. Foley, 71 N. Y. 
 
 solved. Harrison v. Park, 1 J. J. 106; Byam v. Cashman, 78 Cal. 525, 
 
 Marsh (Ky.), 171. 21 Pac. 113. 
 
 296
 
 Injunction Bond and Actions on it. § 179 
 
 injunction was granted, and an undertaking given to pay damages 
 in case the court " finally decides that the plaintiff was not entitled 
 thereto," and the defendant secures a dismissal of the action and 
 a dissolution of the preliminary injunction, upon some matter 
 arising subsequent to the commencement of the action, and having 
 no relation to the merits, such dismissal is not a determination by 
 the court that the plaintiff was not entitled to the injunction at the 
 time it was granted, and in such a case the sureties to the under- 
 taking are not liable. 23 But in Missouri, where a bond, given on 
 enjoining the sale of land under a deed of trust, was conditioned on 
 payment of " all damages that may be occasioned by such injunc- 
 tion," and of " all sums of money, damages and costs, which shall 
 be charged against it, if the injunction shall be dissolved," and the 
 injunction was dissolved solely on account of a subsequent sale, 
 under a prior deed of trust in favor of a third person, it was held 
 by the Missouri Supreme Court, in an action on the injunction 
 bond, that plaintiff could not maintain that the injunction was 
 properly issued in the first place, and that therefore only nominal 
 damages should be awarded against him, for the very terms of the 
 statute and of the obligations of the bond required the payment of 
 damages, should the injunction be dissolved; and the voluntary 
 dismissal of the injunction suit, which occurred after the sale, 
 should be regarded as a judicial determination that there had been 
 a breach of the bond." Again a party who procures a restraining 
 
 See § 172a as to necessity of com- Y. 46, 32 N. E. 555. Even under the 
 
 pliance with statute. obligation of the bond in that case, 
 
 23. Apollinaris Co., Limited, v. the court remarked that the sureties 
 Venable, 136 N. Y. 46, 32 N. E. 555; upon such an undertaking may be 
 Johnson v. Elwood, 82 N. Y. 363; held in some cases, although there 
 Palmer v. Foley, 71 N. Y. 106. had been no formal adjudication 
 
 24. Alliance Trust Co. v. Stewart, against the right of a temporary in- 
 115 Mo. 236, 21 S. W. 793, where the junction; as where plaintiff, ex parte 
 court said: "The undertaking here and without the consent of defendant, 
 was absolute on a dissolution, and enters an order vacating the injunc- 
 not, as in a recent New York case, tion and discontinuing the action, 
 conditioned that the court should fin- This, it was said, is equivalent to the 
 ally decide that the plaintiff was not adjudication that the plaintiff was 
 entitled to an injunction. Apollin- not entitled to the injunction when 
 aris Co., Limited, v. Venable, 136 N. granted. In this case the suit was 
 
 297
 
 §180 
 
 Injunction Bond and Actions on it. 
 
 order to be issued, which is regular on its face, and receives the 
 full benefit to be derived from it, cannot defend against an action 
 on the injunction bond for damages on the ground that the order 
 was invalid because issued by the judge when his court was not in 
 vacation. 25 
 
 § 180. Breach of bond further considered. — A judgment 
 entered after trial dismissing the complaint is a final determina- 
 tion that the plaintiff had no cause of action and therefore that 
 he was not entitled to an injunction within the provision of the 
 New York Code. 26 And so the dismissal of an action for want 
 of prosecution is a final decision of it which entitles a party 
 enjoined to damages where an undertaking has been given condi- 
 tioned to pay the party enjoined the damages sustained by reason 
 of an injunction " if the court shall finally decide that the plaintiff 
 was not entitled thereto." 27 So also the entry of an ex parte order 
 by plaintiff discontinuing the action without defendant's consent 
 on payment of costs by plaintiff is equivalent to a determination 
 that plaintiff was not entitled to the injunction granted therein. 28 
 
 dismissed and the injunction dis- 
 solved by the voluntary act of plain- 
 tiff, and against the objection of de- 
 fendants. While a further prosecu- 
 tion of the suit after sale would 
 have been idle and useless, still a sale 
 was a contingency that might have 
 been anticipated, and plaintiff risked 
 a dissolution therefor when he asked 
 for and obtained an injunction." 
 
 25. Rhodes-Burford Furn. Co. v. 
 Mattox, 13 Ind. App. 221, 40 N. E. 
 545. 
 
 26. Grainger v. Smyth, 53 N. Y. 
 St. Rep. 259. And see Mutual, etc.. 
 Ins. Co. v. Roberts, 4 Sandf. Ch. 592. 
 See Code Civ. Proc, § 620. 
 
 27. Manufacturers', etc.. Bank v. 
 Dare Co., 67 Hun (N. Y.), 44. See, 
 also, Weeks v. Southwick, 12 How. 
 Pr. (N. Y.) 170; Taaks v. Schmidt, 
 19 How. Pr. (N. Y.) 413; Cunning- 
 
 ham v. White, 45 How. Pr. (N. Y.) 
 486; Carpenter v. Wright, 4 Bosw. 
 (N. Y.) 655. 
 
 28. Pacific Mail, etc.. Co. v. Toel, 
 85 N. Y. 646; aff'g 9 Daly, 301. See, 
 also. Amberg v. Kramer, 29 N. Y. St. 
 Rep. 958; Brown v. Galena Mining 
 Co., 32 Kan. 528. A preliminary in- 
 junction was granted on an undertak- 
 ing to pay defendant's damages " by 
 reason of the injunction, if the court 
 should finally decide that plaintiff 
 was not entitled thereto." The in- 
 junction was vacated on motion of de- 
 fendants, and the action subsequently 
 dismissing for want of prosecution. 
 Held, that this constituted a breach 
 of the undertaking which entitled de- 
 fendant to a reference to assess hia 
 damages. Kane v. Casgrain, 69 Wis. 
 430, 34 N. W. 241. Where an ex 
 parte preliminary injunction is va- 
 
 298
 
 Injunction Bond and Actions on it. 
 
 §180 
 
 "But a discontinuance of an action upon the agreement of the 
 parties where the plaintiff does or does not pay the defendant costs, 
 does not operate as a final decision that the plaintiff was not entitled 
 to the injunction order when it was granted. 29 And before there 
 can be a recovery of damages on the bond it must be determined by 
 judgment, or something equivalent thereto, that plaintiff was not 
 entitled to the injunction; it is not sufficient that this appears by 
 the facts developed on the trial, but it must become a part of the 
 court's decision. 30 Where an injunction bond conformed to the 
 
 cated on a contested motion, without 
 stating why it was vacated, and the 
 complaint is dismissed on the trial, 
 the conclusion is warranted that the 
 court finally decided that plaintiff 
 was not entitled to the preliminary 
 injunction, and an order appointing 
 a reference to ascertain the damages 
 on a bond given under Code Civ. Pro. 
 N. Y. § 620, providing for damages 
 if the court finds plaintiff was not 
 entitled to the injunction, will not be 
 disturbed. Jordan v. Donnelly, 11 N. 
 Y. Supp. 836. Where an injunction 
 prohibiting the collection of separate 
 and distinct taxes due to separate 
 and independent corporations, is dis- 
 solved as to part of such taxes, and 
 sustained as to the rest, there is a 
 breach of the obligation of the in- 
 junction bond. Willits v. Slocumb, 
 24 111. App. 484. 
 
 29. Palmer v. Foley, 71 N. Y. 106. 
 In Benedict v. Benedict, 76 N. Y. 600, 
 which was an action to compel the 
 defendant to convey to the plaintiff 
 land which the defendant was re- 
 strained from selling or incumbering 
 during the pendency of the action, 
 the final judgment rendered was that 
 the plaintiff was not entitled to a 
 conveyance of the land, but that he 
 had an equitable lien thereon, and a 
 sale was ordered to satisfy the lien 
 and costs. The defendant moved for 
 
 a reference to ascertain his damages 
 sustained by reason of the injunction, 
 which was refused upon the ground 
 that it had not been finally decided 
 that the plaintiff was not entitled to 
 it. In that case the action haa not 
 been determined in favor of the de- 
 fendant, and it may well have been 
 that the plaintiff was entitled to tho 
 injunction to restrain the convey- 
 ance or incumbrance of land on which 
 the plaintiff had an equitable lien. 
 
 30. Benedict v. Benedict, 76 N. Y. 
 600. Under Code Civ. Pro. N. Y. § 
 620, providing that the applicant 
 shall file an undertaking to pay the 
 party enjoined such damages as he 
 may sustain by the injunction, if tho 
 court finally decides that the appli- 
 cant is not entitled thereto, defend- 
 ant is not entitled to a reference to 
 ascertain damages, when, after the 
 general term has affirmed the order 
 continuing the injunction, oiaintiff 
 has discontinued the action, since 
 there has been no decision adverse 
 to his right to the injunction. Hall 
 v. Sexton, 3 N. Y. Supp. 549. A 
 chattel mortgagor -obtained an in- 
 junction against the foreclosure of 
 the mortgage for $1,000, on the 
 ground that he did not owe anything 
 on the mortgage, and gave a bond to 
 pay such damages as the mortgagee 
 mignt sustain, "if the court should 
 
 299
 
 §§ 131, 182 Injunction Bond and Actions on it. 
 
 requirements of the 46th Rule in Chancery in New Jersey, except 
 that the words " such damages to be ascertained in such manner as 
 the chancellor shall direct," were omitted, it was held that the only 
 remedy on it was by an action at law, the court of chancery having 
 no jurisdiction over it. 31 
 
 § 181. Same subject; in Alabama and Ohio. — Where in an 
 action on a bond, it appeared that it was given to obtain an injunc- 
 tion restraining plaintiff from prosecuting certain suits against 
 defendants, and was conditioned to be void if defendants should 
 pay all damages sustained by the suing out of the injunction, in 
 ease it was dissolved and no decree dismissing the bill for the in- 
 junction, or dissolving the injunction, was made, and the suits 
 were not finally disposed of it was decided that plaintiff failed to 
 show a breach of the bond. 32 The dismissal of an injunction suit 
 without prejudice, and the consequent dissolution of the injunction, 
 do not constitute a breach of an injunction bond conditioned to pay 
 damages "if it be finally decided that the injunction ought not 
 to have been granted." 33 
 
 §182. Same subject; in Kentucky, California, Iowa and 
 Maine. — A final decision that an injunction ought not to have been 
 granted is, within the provisions of the Kentucky Code, equivalent 
 to a final judgment dissolving the injunction and gives a right of 
 action on the bond. 34 In California, where a bond was given under 
 Code of Procedure, conditioned that plaintiff should pay to the 
 enjoinee such damages as he should sustain by reason of the in- 
 
 tinally decide he was not entitled" 31. Easton v. N. Y., etc., R. Co., 
 
 to the injunction. Under an oral 26 N. J. Eq. 359. 
 
 stipulation that $571 was due on the 32. May v. Walter, 85 Ala. 438, 
 
 mortgage, judgment was entered for 6 So. 610. 
 
 that amount, also dissolving the in- 33. Krug v. Bishop, 44 Ohio St. 
 
 junction. Held, that an action on the 221, 6 N. E. 252. 
 
 bond could not be sustained, the court 34. Alexander v. Gish, 88 Ky. 13, 
 
 not having decided that the injunc- 9 S. W. 801; Pugh v. White, 78 Ky. 
 
 tion was not properly granted. Pre- 210; Wood v. Laycock, 3 Met. (Ky.) 
 
 fontaine v. Richards, 47 Hun (N. 193. 
 
 Y.), 418. 
 
 300
 
 Injunction Bond and Actions on it. § 183 
 
 junction if the court should finally decide he was not entitled 
 thereto, it was held that the condition of the bond was broken when 
 the injunction was dissolved by a final judgment in defendant's 
 favor. 35 Suit cannot be brought on an injunction bond until a 
 final hearing, although the temporary injunction has been dissolved 
 because improperly granted and the writ wrongfully issued 
 Where, after a hearing, the bill, on its merits, is dismissed, and 
 the dismissal entered on the docket, an action may be sustained 
 on the bond given to procure the preliminary injunction, without 
 a formal decree being signed and filed. 37 
 
 § 183 Venue; action pending an appeal.— An action for dam- 
 ages on an injunction bond may be brought in a county in which 
 one of several defendants resides, though it be in a county other 
 than that in which the injunction suit was tried. 38 And an action 
 may be maintained in a State court upon an injunction bond given 
 iu an action pending in a Federal court. 39 But it is not competent 
 to recover before one tribunal, upon some of the covenants in an 
 injunction bond, and then sue upon other covenants before another 
 tribunal, in a case where a party was alike liable before either 
 tribunal at the same time for all the covenants in the entire instru- 
 ment <° In California it has been decided that the Supreme Court 
 will not grant on order restraining the prosecution of an action 
 on a bond given on the issuing of a restraining order, pending m 
 appeal by the obligor from an order of the Superior Court vacating 
 his restraining order, and denying his application for injunction. 
 
 35. Rice v. Cook, 92 Cat. 144, 28 niture Co. v. Colby, 35 M 5W. 
 Pac 219. See Cal. Code, § 529. 37. Thurston v. Haskell, 81 Me. 
 
 36 Monroe Bank v. Gifford, 65 303, 17 Atl. 73. 
 Iowa 648 22 N. W. 913. An injunc- 38. Wood v. Hollander, 84 Tex. 
 
 low a, o*o, m Anta „ A ooi iq « W 551. Examine Kim- 
 
 tion was issued on notice to defend- 394, 19 b. w. oo 
 
 ♦ ff r n full hearing on the brough v. Walker 27 La. Ann. ooo. 
 ants, after a lull neanug "" * . Mi Co v< S t. Louis 
 
 rVST— a y „ r; 30 -. B,a k e„e 7 v. m , „ A*. 
 
 hoarin" the bill was dismissed for 347. „ . , .„ 
 
 want oi equity. Held, that plaintiff 41. Adams v. Andrew, 77 CM. 483, 
 
 raslile q on y the bonds. Tobey Fu, 20 Pac. 26. An injunction bond pro- 
 
 301
 
 §184 
 
 Injunction Bond and Actions on it. 
 
 § 184. Parties to actions on injunction bonds; nominal parties. 
 — Where the party enjoined assigns part of his interest in the prop- 
 erty affected by the injunction, but does not assign the injunction 
 bond, the assignee is not a necessary party plaintiff in an action 
 on the bond. 42 The general rule is that other than the persons 
 enjoined are not allowed damages in actions on bonds, though they 
 may be interested, as, for instance, prior lienors, in the subject 
 matter of the suit. 43 And where one who is not named as obligee 
 in an injunction bond brings an action thereon the plaintiff is not 
 even entitled to nominal damages where he alleges merely a breach 
 of the bond and the dissolution of the injunction though the bond 
 is conditioned to pay the damages sustained by " any person " as 
 a result of the suing out of the injunction if the same is dissolved. 
 He should also allege such a state of facts as to show that he was 
 damaged by reason of the issuance of the injunction. 44 But an 
 administrator may sue upon a bond drawn to the obligee " his heirs 
 and assigns " without any formal words therein giving him such 
 right. 45 But where proceedings conducted by one party for his own 
 benefit in the name of another are restrained by an injunction 
 
 vided that, if a restraining order 
 should be set aside at the final hear- 
 ing of the cause in which it was 
 given, the defendants would indem- 
 nify the plaintiff against the conse- 
 quences of such order. On motion, 
 the restraining order was dissolved, 
 and on final hearing the cause dis- 
 missed. The cause was appealed to 
 the Supreme Court of the United 
 States without supersedeas, and was 
 there pending when suit was brought 
 to recover under the bond. Held, 
 that the right to enforce the bond was 
 suspended during the appeal; and 
 as the right to enforce it depended 
 upon the final determination of the 
 suit in which it was given, it was im- 
 material wnether or not supersedeas 
 was obtained. Cohn v. Lehman, 93 
 Mo. 574, 6 S. W. 267. 
 
 42. Smith v. Atkinson, 18 Colo. 
 255. 32 Pac. 425, per Hoyt, C. J.: 
 " At common law an assignment of a 
 part of an entire claim does not give 
 the assignee a right of action in his 
 own name, and it has been held in a 
 number of cases that this rule has 
 not been changed by the reformed 
 procedure. The present suit on the 
 undertaking which has not been as- 
 signed can be maintained only by the 
 obligees named therein. Leese v. 
 Sherwood, 21 Cal. 151; Cable v. St. 
 Louis Dock Co., 21 Mo. 133." 
 
 43. Holloway v. Holloway, 103 Mo. 
 274, 285, 15 S. W. 536. 
 
 44. Marengo County v. Watkin 
 (Ala. 1905), 42 So. 33. 
 
 45. Rynearson v. Fredenburg, 42 
 Mich. %12. 
 
 302
 
 Injunction Bond and Actions on it. § 184a 
 
 directed to the nominal party, the damages and expenses incurred 
 by the real party in interest will be presumed in law to have been 
 incurred by the defendant on the record, and are recoverable in his 
 name for the benefit of the real party in interest. 46 And where an 
 injunction was obtained against a defendant who was the agent of 
 another, it was held that on dismissal of the injunction bill the 
 defendant could bring a suit for damages on the injunction bond 
 for the benefit of his principal. 47 In the case of an injunction 
 against a company and its receiver it has been held that in an 
 action upon the injunction bond the receiver is the real party in 
 interest and that the joinder of the company as co-plaintiff is 
 improper. 48 A trustee of an express trust, who has been restrained 
 with respect to matters concerning the trust estate may also main- 
 tain an action on the bond given in the injunction suit in which 
 he is named as the obligee. 49 Where an injunction bond is made 
 payable to the State, suits thereon may be prosecuted from time 
 to time for the benefit of the person injured by the breach of the 
 condition thereof, until damages are recovered in the aggregate 
 equal to the penalty of the bond. 50 And it may be shown aliunde 
 that the bond erroneously recites the name of the nominal defend- 
 ant in the suit sought to be restrained, and that there was a suit 
 pending in which the person so recited as defendant was the real 
 party in interest, though others were the nominal defendants. 51 
 
 § 184a. Parties plaintiff continued. — All the obligees in an 
 action of debt on an injunction bond should join in the suit as 
 plaintiffs, upon the principle that the demand or cause of action 
 
 46. Andrews v. Glenville Woolen 51. Person v. Thornton, 86 Ala. 
 Co., 50 N. Y. 282. 308, 5 So. 470. In such a case the 
 
 47. Richardson v. Allen, 74 Ga. recital of the suit is not an essential 
 719; Shaver v. McLendon, 26 Ga. 228. part of the contract. Steed v. Hin- 
 
 48. Wason v. Frank, 7 Colo. App. son, 76 Ala. 298; Meredith v. Rich- 
 541. 44 Pac. 378. ardson, 10 Ala. 828. The variance in 
 
 49. Gyger v. Courtney, 59 Neb. the names of the nominal and real 
 555, 81 N. W. 437. defendant may be explained. Mitchell 
 
 50. State v. Hall, 40 W. Va. 455, v. Ingram, 38 Ala. 395; Dickson v. 
 21 S. E. 760. Bachelder, 21 Ala. 699. 
 
 303
 
 § 185 Injunction Bond and Actions on it. 
 
 on such bond is joint and not several. 52 So in a suit upon an in- 
 junction bond for the payment of one sum to two more parties, 
 such parties should join as plaintiffs, though the loss is not a joint 
 one. And if they do not it is decided that the omission may be 
 availed of by demurrer to the declaration or by proof of non-joinder 
 at the trial. 53 And where the undertaking given on the granting 
 of an injunction is for the benefit of all the defendants that are 
 enjoined, all of them who obey the injunction whether served there- 
 with or not, are entitled to have their damages, caused by the 
 injunction, assessed. 54 In this connection it has also been decided 
 that an injunction bond is an undertaking to which the obligees 
 are unwilling parties, and is not a contract of their making. By it 
 they do not undertake that they will obey the writ. Hence the 
 strict rules applicable to contracts mutually entered into, which 
 prohibit the party violating his contract, from maintaining an 
 action on the same, has no application to such a bond. 55 
 
 § 185. Parties plaintiff concluded. — Where an injunction bond, 
 given in a suit to restrain the funding and payment of county 
 bonds, is conditioned to pay damages sustained by those designated 
 as defendants and all holders of the bonds, it is no defense to an 
 action on the bond that the plaintiffs, who were bondholders, were 
 not designated defendants in the injunction suit, for to exclude 
 such real parties in interest from their right to sue on the injunc- 
 tion bond, merely because they were not made parties defendant, 
 would not only be in disregard of the express stipulation of the 
 bond, but might enable a designing party to do great injury to those 
 really interested by making only those having a nominal interest 
 parties defendant. 56 But public officers enjoined as such and in- 
 demnified as such by the injunction bond, cannot sue thereon for 
 damages as private persons, there being no privity between them 
 
 52. Montana Min. Co. v. St. Louis man Co., 39 Barb. (N. Y.) 16. 
 
 Min. & M. Co., 19 Mont. 313, 48 Pac. 55. Colcord v. Sylvester, 66 111. 
 
 305. See Wallace v. Dilley, 7 Md. 540. See also. Van Hoozer v. Van 
 
 237. Hoozer, 18 Mo. App. 19. 
 
 53. Wallis v. Dilley, 7 Md. 237. 56. Alexander v. Gish, 88 Ky. 13, 
 
 54. Cumberland Coal Co. v. Hoff- 9 S. W. 801. 
 
 304
 
 Injunction Bond and Actions on it. §§ 186, 187 
 
 as individuals and the obligors on the bond. 57 So where a suit is 
 brought against the mayor and common council of a city, and an 
 injunction issued thereon, and thereafter the suit is dismissed by 
 the plaintiff, an action to recover on the injunction bond may be 
 brought in the name of the city, as it is the real party in interest. 5 * 
 
 § 186. Requisites of bond as basis of action. — In order that 
 an action may be maintained on the bond it must conform sub- 
 stantially to the requirements of the writ or order of injunction. 59 
 Thus when a temporary restraining order is made upon an appli- 
 cation for a temporary injunction, and is limited to the pendency 
 of the motion for the temporary injunction, on condition that a 
 bond be filed to pay all damage resulting from such order, a bond 
 given in consideration of a writ of injunction pending the hearing 
 of the action is not such a bond as was contemplated by the re- 
 straining order and imposes no liability. 60 An injunction ordered 
 in vacation must be reduced to writing and signed by the judge, 
 in order to be effective or to serve as a foundation for an action 
 on an injunction bond. 61 
 
 § 187. Complaint on injunction bond; demurrer. — A complaint 
 in an action on the bond is demurrable if it fails to allege that the 
 injunction was wrongful or without sufficient cause, but this defect 
 is waived by defendant if he answers to the merits. 62 A petition 
 
 57. The governor, comptroller and viduals and the obligors in said un- 
 
 treasurer of the State of Nevada can- dertaking. Kinkead v. Benton, 19 
 
 not bring suit, as private individuals, Nev. 437, 14 Pac. 294. 
 
 upon a statutory undertaking running 58. Boise City v. Randall, 8 Ida. 
 
 to them as officials, and given in con- 119, 66 Pac. 938. 
 
 sideration of the issuance of an in- 59. Byam v. Cashman, 78 Cal. 525, 
 
 juncion in a suit to restrain them 21 Pac. 113. Compare Blankenship 
 
 from exercising the authority con v. Ely, 98 Va. 359, 36 S. E. 484. 
 
 ferred upon them by the Act of Feb- 60. Byam v. Cashman, 78 Cal. 525, 
 
 ruary 24. 1881 (Laws Nev. 1881. ch. 21 Pac. 113. 
 
 42), which directs the construction 61. Kiser v. Lovett, 106 Ind. 325, 
 
 of an asylum for the insane, because 6 N. E. 816. 
 
 said suit having been brought against 62. Olds v. Cary, 13 Or. 362, 10 
 
 them in their official capacity, there Pac. 786. 
 is no privity between them as indi- 
 
 305 
 20
 
 § 187 Injunction Bond and Actions on it. 
 
 in an action on an injunction bond, alleging the wrongful issue of 
 the writ and its dissolution, and that plaintiff was compelled to 
 employ an attorney and incur expenses, but which does not show 
 on what ground the injunction was issued, on what ground it was 
 dissolved, that plaintiff was deprived of any right by being en- 
 joined, or that there was any occasion for his employing a lawyer 
 and incurring expenses, is bad on demurrer. 63 But in an action 
 on an injunction bond a petition which alleges facts from which it 
 appears that the injunction was wrongfully sued out, is sufficient 
 without a specific allegation of that fact. 64 And in Indiana, in an 
 action on an undertaking to pay all damages and costs accruing by 
 reason of an injunction, if such injunction should not be sustained, 
 the sufficiency of the complaint cannot be questioned by a demurrer 
 to allegations showing how plaintiff was damaged, as the cause of 
 action accrued on the dissolution of the injunction. 60 Where, how- 
 ever, a bond is conditioned to pay such damages as shall be awarded 
 a declaration in an action on the bond in which it does not appear 
 that damages have in any way been awarded is not sufficient. 66 
 When, in an action on an injunction bond to stay execution, the 
 plaintiff sets forth the undertaking in the bond, and proceeds to 
 allege that the injunction was wholly dissolved, and the defendants 
 had failed to satisfy any part of the execution, and that it is still 
 
 63. Hibbs v. Western Land Co., 81 sufficiency of the petition in that re- 
 Iowa, 285. 46 N. W. 1119. In a suit spect; that the defendant's denial of 
 for the cancellation of a note, a pre- that allegation, among others, and 
 liminary injunction was granted re- the dissolution of the injunction 
 straining defendant in the suit from presumably on that ground, at least 
 negotiating the note, but it was af- in part, precluded defendant in the 
 terwards dissolved pendente lite upon suit from claiming that he was in- 
 answer and affidavits denying the al- jured by the injunction; and that the 
 legations and the petition. Held, in action must consequently fail. Bank 
 an action on the injunction bond, of Monroe v. Gifford, 70 Iowa. 580, 
 that it must be presumed that the 31 N. W. 881. 
 
 petition in the injunction suit alleged 64. Williams v. Ballinger, 125 
 
 that the defendant therein intended Iowa, 410, 101 N. W. 139. 
 
 to negotiate the note, as that was a 65. Boos v. Morgan, 5 Ind. App. 
 
 necessary allegation to entitle plain- 218. 31 N. E. 39. 
 
 tiff therein to an injunction, and as 66. Ashby v. Chambers, 3 Dana 
 
 defendant therein, upon motion to (Kj.), 437. 
 dissolve, made no point of the in- 
 
 306
 
 Injunction Bond and Actions on it. §§ 188, 1814 
 
 unpaid, this is a sufficient averment of the breach of covenant as 
 to payment. 67 
 
 § 188. Same subject. — The bond may be made a part of the 
 complaint by setting it forth at length or by annexing a copy of 
 it as an exhibit and referring to it as forming part of the com- 
 plaint, 68 or it may be declared on according to its legal effect. 69 An 
 in junction bond will not be taken from the files and delivered to 
 the obligees to bring an action thereon at law, without the consent 
 of the obligors, but a certified copy should be provided ; the clerk 
 to produce the original in evidence whenever properly required.' 
 If the bond is not free from ambiguity the pleader must put his 
 construction upon it by proper averments. 71 All that is effected 
 by setting forth the bond at length is to allege its existence and 
 character; and matters of substance which are preliminary or col- 
 lateral to it cannot be supplied by its recital. 72 In an action on 
 injunction bond, the bond is the foundation of the action, and the 
 complaint need not set out the record in the injunction suit, as an 
 exhibit. 73 
 
 § 189. Allegations of special damage. — In a suit on an injunc- 
 tion bond, the complaint must allege special damages or they 
 cannot be proven. 74 But in Nevada it has been held that a general 
 allegation of damages is sufficient in an action on an injunction 
 bond, in the absence of a special demurrer. 73 Where no damages 
 have been awarded by the decree dissolving the injunction, the 
 declaration on the bond must specify the particular injuries sus- 
 tained with such clearness that they may be understood by the 
 
 67. Riggan v. Crain, 86 Ky. 249, 26 NT. J. Eq. 360. 
 
 6 S. W. 561. 71. Durkee v. Cota, 74 Cal. 315, 
 
 68. Lambert v. Haskell, 80 Cal. 16 Pac. 5. 
 
 611, 22 Pac. 327. 72. Los Angeles v. Signoret, 50 
 
 69. Stoddard v. Treadwell, 26 Cal. 298. 
 
 Cal. 303; Murdock v. Brooks, 38 Cal. 73. Merrifield v. Weston, 68 Ind. 
 
 603; Joseph v. Holt. 37 Cal. 253; 70. 
 
 Hallock v. Jaudin, 34 Cal. 175; Wills 74. Parker v. Bond. 5 Mont. 1. 
 
 v. Kempt. 17 Cal. 98. 75. Rosendorf v. Mandel, 18 Ncv. 
 
 70. Easton v. N. Y„ etc., R. Co., 129. 1 Pac. 672. 
 
 307
 
 S§ 189a, 189b Injunction Bond and Actions on it. 
 
 defendants. 7 * In a suit on an injunction bond, plaintiff should bo 
 limited in his pleadings to allegations of damage resulting ex- 
 clusively from the injunction. 77 
 
 § 189a. Effect of plea or answer. — A plea of non est factum in 
 an action on an injunction bond, casts the burden of proof on the 
 plaintiff. 78 But the fact that the court orders an injunction to be 
 issued has been held to be conclusive evidence that the court ap- 
 proved the bond, and in a suit on the bond, an answer denying the 
 approval thereof by the court is bad when the fact that the court 
 ordered its issuance is shown by the record. 79 
 
 § 189b. Defenses; generally. — In an action on an injunction 
 bond matters which go to the merits of the injunction suit, cannot 
 be considered as they will be presumed to have been adjudicated 
 upon. 80 So in an action on an injunction bond an answer setting 
 up matter which would have been merely a defense to an action for 
 an injunction is insufficient. 81 And in an action on an 
 injunction bond, given to restrain the further prosecution 
 of a suit at law the defendants are estopped from denying 
 that there was such a suit pending as that described in 
 the bond. 82 It is also no defense to show that the suit in which 
 the writ of injunction was issued was not brought against the 
 proper party. 83 The fact that the principal in an undertaking 
 given in an injunction suit was sued without making the sureties 
 parties is also immaterial. 84 And the fact that an injunction bond 
 fails to state the name of the court in which the action is brought 
 does not render it void. 85 Nor is it material that the name of the 
 
 76. State v. Purcell, 31 W. Va. 81. Sipe v. Halliday. 62 Ind. 4. 
 44 5 S. E. 301. 82. Person v. Thornton, 86 Ala. 
 
 77. Wood v. Hollander, 84 Tex. 308, 5 So. 470. 
 
 394, 19 S. W. 551. 83. Boise City v. Randall, 8 Tda. 
 
 78. Robards v. Wolfe, 1 Dana 119. 66 Pac. 938. 
 
 (Ky). 155- ® 4 - ^ raw f° r d v - Pearson, 116 N. 
 
 79. Griffin v. Wallace, 66 Ind. 410. C. 718, 21 S. E. 561. 
 
 80. Sipe v. Halliday, 62 Ind. 4; 85. Winship v. Clendenning, 24 
 Nansemond Timber Co. v. Rountree, Ind. 439. 
 
 122 N. C. 45, 29 S. E. 61. 
 
 308
 
 Injunction Bond and Actions on it. §§ 189c, 189d 
 
 surety should appear in the body of the bond. 80 And the fact that 
 an injunction was violated in part does not prevent a recovery on 
 the bond to the extent it was observed. 87 Where several parties 
 were interested in an injunction action, but only one was made a 
 defendant and he employed an attorney, through whose efforts the 
 injunction was dissolved, in an action on the injunction undertak- 
 ing the obligors cannot question the authority of the attorney or 
 the value of his services for the reason that he did not represent 
 all the parties who were interested in the result of the injunction 
 action. 88 But where it is the practice to execute the injunction bond 
 before the issuance of the injunction, the obligors when sued on the 
 bond may show that no injunction ever issued and this is held to 
 be true though the bond recites " that they had prayed for and 
 obtained an injunction." 89 And in an action on an injunction 
 bond, the court is warranted in directing the jury that there can 
 be no recovery for loss on sales while the injunction was in force, 
 where it was habitually violated and no sales were in fact pre- 
 vented thereby. 90 
 
 § 189c. Defenses; want of jurisdiction. — When a plaintiff files 
 a complaint and bond, and procures an injunction to issue from a 
 court of general jurisdiction, he is, when sued upon the bond, 
 estopped to say that the court granting the injunction was without 
 jurisdiction. This rule is founded upon the theory that it does 
 not lie in the mouth of one who has affirmed the jurisdiction of the 
 court in a particular matter to accomplish a purpose, to afterwards 
 deny such jurisdiction to escape a penalty. 91 
 
 § 189d. Presumptions. — In the absence of evidence to the con- 
 
 86. Griffin v. Wallace, 66 Ind. 410. 422, 28 N. E. 857, 15 L. R. A. 273. 
 
 87. Wadsworth v. O'Donnell, 7 Ky. See, also, Boise City v. Randall, 8 
 Law Rep. 837. Ma. 119 66 Pac. 938; Hanna v. Mc- 
 
 88. Nimocks v. Welles, 42 Kan. 39, Kenzie, 5 B. Mon. (Ky.) 314; Cum- 
 21 Pac. 787. berland Coal & I. Co. v. Hoffman 
 
 89. Adams v. Olive, 57 Ala. 250. Steam Coal Co.. 39 Barb. (N. Y.) 16; 
 
 90. Steel v. Oordon, 14 Wash. Loomis v. Brown, 16 Barb. (N. Y.) 
 521, 45 Pac. 151. 325. 
 
 91. Robertson v. Smith, 129 Ind. 
 
 309
 
 § 189d Injunction Bond and Actions on it. 
 
 trary it will be presumed that the delivery of a bond was uncondi- 
 tional and it is for the defendant to plead and prove the contrary.** 
 And where an injunction bond on which judgment has been ren- 
 dered, has been lost it will be presumed to have been taken accord- 
 ing to law and with the conditions recited in the judgment. 93 
 
 92. Gyger v. Courtney, 59 Neb. 93. Hicks v. Haywood, 4 Heiak. 
 
 555, 81 N. W. 437. (Tenn.) 598. 
 
 310
 
 Damages. 
 
 CHAPTER VI. 
 
 Damages. 
 
 Section 190. Only actual damages recoverable on bond. 
 
 191. Only damages caused by injunction. 
 191a. Same subject— Remote damages. 
 191b. Nominal damages. 
 
 191c. Amount recoverable on bond limited by penalty of. 
 
 192. Enjoinee's duty to avert damages. 
 
 193. Damages to stockholders. 
 
 194. Wages and current expenses as damages. 
 
 195. Depreciation of value as damages. 
 
 196. Interest when allowed as damages. 
 
 197. Rents as damages— Injunction against asserting ownership. 
 
 198. Loss of profits as damages. 
 
 199. Loss of profits sometimes allowed. 
 
 200. Loss of time and anxiety— Damnum absque injuria. 
 
 201. Exemplary damages not recoverable. 
 
 202. Damages accruing after final decree. 
 
 203. Counsel fees on dissolution of injunction. 
 
 204. Counsel fees— Recovery of continued. 
 
 205. Counsel fees where injunction only relief sought. 
 
 206. Counsel fees where injunction ancillary to principal relief. 
 
 207. Counsel fees incurred generally in case. 
 
 208. Counsel fees— Where not paid. 
 
 209 Counsel fees— Assignment to attorney of claim for. 
 
 210. Jurisdictions where counsel fees not recoverable. 
 210a. Counsel fees— Where federal bond sued in State court. 
 210b. Where injunction expenses blended with those of suit. 
 
 211. Costs of reference as damages. 
 211a. Assessment of damages— Generally. 
 
 212. Assessing damages-ln Kentucky, Alabama, Iowa, Mississippi, 
 
 Missouri. 
 
 213. In Maine and Minnesota. 
 
 214. Assessment of damages in Illinois-Suggestion when required. 
 
 215. Continued in Illinois. 
 
 216. In New York and New Hampshire. 
 
 217. in Louisiana. 
 
 218. Motion to assess damages-^Joinder of movanta-Apportion- 
 
 ment. 
 
 219. Federal practice as to determining damages. 
 
 220. English injuiry as to damages. 
 
 311
 
 §190 
 
 Damages. 
 
 Section 221. Assessing damages on partial dissolution of injunction. 
 
 222. Reference to ascertain damages. 
 
 223. Same subject. 
 
 224. Reference in Wisconsin. 
 
 225. Review and correction of referee's report. 
 
 226. Reference in case of appeal. 
 226a. Pleadings. 
 
 226b. Evidence and burden of proof. 
 226c. W nen prescription begins to run. 
 
 Section 190. Only actual damages recoverable on bond An 
 
 injunction bond as a general rule covers only actual damages. 
 Thus where defendant's right to control the flow of a stream, the 
 use of which was enjoined, had no appreciable rental value, and 
 therefore he sustained no actual damage, it was held he was not 
 entitled to even nominal damages in an assessment thereof on the 
 bond. 1 And where defendant alleged in his answer that he did not 
 
 1. Foster v. Stafford Nat. Bank, 
 58 Vt. 658, 5 Atl. 890; Uhrig v. St. 
 Louis, 47 Mo. 528. In an action to 
 recover for a wrongful injunction, 
 only actual damages will be imposed 
 on a party who honestly believed him- 
 self entitled to the writ. Carondelet 
 Canal & Nav. Co. v. Touche, 38 La. 
 Ann. 388. In Riggs v. Bell, 42 La. 
 Ann. 666, per Bermudez, C. J.. " An 
 examination of the record satisfies us 
 that Mrs. Bell acted in good faith, 
 under the advice of able counsel, in 
 the vindication of what she conceived 
 to be her rights, which were kindred 
 to similar ones in a somewhat analo- 
 gous case which may have been con- 
 strued as authorizing her complaint 
 and the relief judicially sought. 
 Blanc v. Murray, 36 La. Ann. 162. 
 But the injunction having been dis- 
 solved she remains under the obliga- 
 tion of repairing the actual damages 
 which it has undoubtedly occa- 
 sioned." Attorneys' fees and rent 
 were the items of damages allowed, 
 amounting to $325, and their allow- 
 
 ance was confirmed on appeal. Where 
 the evidence in an action on an in- 
 junction bond showed that the in- 
 junction was obtained to restrain the 
 enforcement of a judgment against 
 land held in the name of the judg- 
 ment debtor as " trustee," without 
 designating any beneficiary, and that 
 pending the injunction suit the plain- 
 tiff therein, the alleged beneficiary, 
 agreed that such judgment should be 
 a lien upon the property, and soon 
 afterwards the injunction was dis- 
 solved, it was held, that, in the ab- 
 sence of proof that the judgment 
 creditor had suffered material dam- 
 age by the injunction, a judgment for 
 defendant would not be reversed, al- 
 though the plaintiff might be entitled 
 to nominal damages. Boardman v. 
 Willard, 73 Iowa, 20, 34 N. W. 487. 
 And generally an omission to assess 
 nominal damages where there is a 
 mere tehenical right to recover, is no 
 ground for a new trial. Norman y. 
 Winch, 65 Iowa, 263, 21 N. W. 598; 
 Heudspeth v. Allen, 26 Ind. 167; 
 
 312
 
 Damages. 
 
 §191 
 
 intend to do the act enjoined, the allegation was a concession that 
 he was not injured by the injunction, and therefore, though the 
 injunction was dissolved, he was not entitled to the expense in- 
 curred in procuring the dissolution. 2 
 
 § 191. Only damages caused by injunction. — Only such dam- 
 ages can be recovered on the injunction bond as were caused by the 
 injunction itself, 3 and they must be such as fall within the condi- 
 tions of the bond. 4 And the damages recoverable in an action on 
 an injunction bond conditioned to pay all damages not exceeding 
 a certain amount, which the defendant might sustain by reason 
 of the injunction are limited to those damages which result from 
 the operation of the injunction. 5 And in Louisiana it is said that 
 the sureties cannot be held liable for the amount of the judgment 
 enjoined unless it be proved that the judgment was lost in conse- 
 quence of the injunction. 6 So the party enjoined cannot recover 
 damages on the injunction bond which were caused by the misman- 
 agement of a receiver and for which he could be held responsible. 7 
 
 Watson v. Van Meter, 43 Iowa, 76. 
 In an action on an injunction bond 
 to recover damages for loss of plain- 
 tiff's crops by reason of his being re- 
 strained from using the water in a 
 certain ditch, the evidence showed 
 that there was a scarcity of water, 
 and that it coutd not have reached 
 plaintiff's land. There was a verdict 
 for the defendant, and the court, 
 with his consent, entered judgment 
 for nominal damages for plaintiff. 
 Held, that the verdict would not be 
 disturbed. Mack v. Jackson, 9 Colo. 
 636, 13 Pac. 542. 
 
 2. Bank of Monroe v. Gifford, 70 
 Iowa, 580, 31 N. W. 881. 
 
 3. Burgen v. Sharer, 14 B. Mon. 
 (Ky.) 497; Elms v. Wright Blodgett 
 
 Co., 106 La. 19, 30 So. 315. 
 
 4. Curry v. American Freehold 
 Land M. Co., 124 Ala. 614, 27 So. 
 454. 
 
 5. Burden v. Sharer, 14 B. Mon. 
 (Ky.) 407. 
 
 6. Hefner v. Hesse. 29 La. Ann. 
 149. 
 
 7. At an execution sale the prop- 
 erty Avas purchased by the debtor's 
 wife. One of his creditors attacked 
 the bona fides of her purchase, and 
 obtained an injunction and a re- 
 ceiver. The bona fides of the pur 
 chase was afterwards established, and 
 the receiver discharged. The wife 
 then sued the creditor on the injunc- 
 tion bond. In this case it was held 
 that she could maintain her action, 
 but that she could not recover for a 
 loss for which the receiver might 
 have been made accountable. Lehman 
 v. McQuown, 31 Fed. 138. In Hotch 
 kiss v. Piatt. 8 Hun, 46, in proceed- 
 ings to ascertain the damages result- 
 ing from the granting of an injunc 
 tion, damages directly caused by the 
 
 313
 
 § 191a Damages. 
 
 And in proceedings to determine the damages caused by an injunc- 
 tion the damages directly caused by the act of divesting the defend 
 ant of his property and putting it in the hands of a receiver may 
 be allowed but not those sustained in consequence of the negligence 
 or want of fidelity of the receiver. 8 And where in an injunction 
 suit a receiver was appointed who gave a bond and took and sold 
 the property in litigation, it was held that damages could not be 
 recovered on the injunction bond for the acts and omissions of the 
 receiver. 9 And where an injunction is ended by the appointment 
 of a receiver, damages arising from the act of the receiver in selling 
 at a sacrifice the property, the sale of which was enjoined, are not 
 recoverable in an action on the injunction bond. 10 
 
 § 191a. Same subject; remote damages. — Damages so remote 
 that from their character they could not. have been considered by 
 the parties as a result of a breach of the contract when it was made 
 cannot bo recovered. 11 So it is a general rule that the damages 
 recoverable are those which are tihe direct proximate and natural 
 consequence of the suing out of the injunction, and that those 
 which are remote and speculative are not recoverable. 12 So in a 
 
 act of divesting the enjoined party of opening a road, it was held he could 
 
 his property and putting it in the not recover from the sureties on the 
 
 hands of a receiver were allowable. injunction bond the damages sus- 
 
 but not such as flowed from the re tained by him from the action inde- 
 
 ceiver's bad management, other secur- pendent of the injunction, nor the 
 
 ity being given therefor; also that an damages for the injury sustained by 
 
 allowance by the court to the receiver the public in consequence of the road 
 
 for services was not allowable as remaining unopened, 
 
 damages if no greater than the party 11. Parks v. O'Connor, 70 Tex. 
 
 enjoined would have had to pay an- 377, 8 S. W. 104. 
 
 other for the same services if no re- 12. Arkansas. — McDaniel v. Crab- 
 
 ceiver had been appointed. tree. 21 Ark. 431. 
 
 8. Hotchkiss v. Piatt, 8 Hun (N. California. — Lambert v. Haskell, 
 y.), 46. 80 Cal. 611, 22 Pac. 327. 
 
 9. Wood v. Hollander, 84 Tex. 394, Illinois.— Landis v. Wolf, 206 111. 
 19 S. W. 551. 392, 399, 69 N. E. 103. 
 
 10. Kerngood v. Gusdorf, 5 Louisiana. — Elms v. Wright Blod- 
 Mackey (D. C), 161. In Burgen v. gett Co., 106 La. 19, 30 So. 315. 
 Sharer. 14 B. Mon. (Ky.) 497, where Missouri. — McKenzie v. Matthews, 
 a road overseer was enjoined from 59 Mo. 99. 
 
 314
 
 Damages. § 191b 
 
 case in New York it is said: " The damages to which a party 
 who has been injured by the granting of an injunction, is entitled, 
 are only such as resulted directly from the injunction. Kemote 
 damages are excluded by the very terms of the undertaking which 
 are that the plaintiff will pay to the defendant such damages a 3 
 he may sustain by reason of the said injunction, and also by the 
 general rules of the law governing the assessment of damages in 
 analagous cases." u So it is said in a recent case in Illinois that 
 damages recoverable for the wrongful suing out of a writ of in- 
 junction must be such as naturally and approximately result there- 
 from and remote or speculative damages cannot be taken into con- 
 sideration. 14 So the damages recoverable in an action on a bond 
 conditioned for the payment of such damages as might be sustained 
 by reason of the injunction are those which are the proximate 
 result of the injunction. 15 And there can be no recovery of remote 
 conjectural profits of which a person claims to have been deprived 
 where they are the collateral and consequential results of the in- 
 junction. 16 And conjectural profits which might have been real- 
 ized from the use of land have been held too remote and uncertain 
 to be recovered as damages on account of being deprived of the use 
 of the land. 17 So damages for lost time at court and in procuring 
 witnesses are not allowable. 18 
 
 § 191b. Nominal damages. — The dissolution of an injunction 
 is said to be a technical breach of the bond for which nominal 
 damages may be recovered. 19 So it is decided that on the dissolu- 
 
 Xew York.— Hotchkiss v. Piatt 8 Stone (Tenn. Ch. 1900), 57 S. W. 
 
 Hun (N. Y.), 46. 374. 
 
 Pennsylvania,— Sensenig v. Parry. 16. Elms v. Wright-Blodgett Co., 
 
 113 Pa St. 115, 5 Atl. 11. 106 La. 19, 30 So. 315. 
 
 13. Hothcklss v. Piatt, 8 Hun (N. 17. Epenbaugh v. Gooch, 15 Ky. 
 Y.), 46, 48. Per Gilbert, J. Law Rep. 576. 
 
 14. Chicago Title & Trust Co. v. 18. Densch v. Scott, 58 111. App. 
 City of Chicago, 209 111. 172. 70 N. E. 33. 
 
 572, aff'g 110 111. App. 395. Per Wil- 19. Stone v. Cason, 1 Oreg. 100. 
 
 kir ' j See, also, Mix v. Singleton. 86 111. 
 
 15. Jones v. Allen, 85 Fed. 523, 29 194; Robmer v. Chadwick, 7 Utah, 
 C. C. A. 318; Smith Penn Oil Co. v. 385, 26 Pac. 1116. 
 
 315
 
 § 191c Dam auks. 
 
 tion of an injunction an action at law may be maintained on the 
 bond and nominal damag(s recovered without proof of any actual 
 damage. 20 But it is also decided that a cause will not be reversed 
 for the purpose simply of allowing the appellant to recover mere 
 nominal damages. 21 As to these nominal damages the courts are, 
 however, disposed in some jurisdictions to adopt the maxim of de 
 minimus non curat lex} 2 So in a case in California in which it 
 was contended that at least nominal damages were recoverable the 
 court declared tihat it thought itself justified in invoking this 
 maxim. 23 And in a case in Vermont it is declared that the damages 
 provided for in an action on an injunction bond are real and that 
 mere nominal damages are not recoverable. 24 
 
 § 191c. Amount recoverable on bond limited by penalty of. — 
 In an action on an injunction bond there cannot be a recovery of a 
 greater sum than the penalty of the bond. 25 So when a bond is 
 required and given the court of chancery cannot award greater 
 damages than the penalty stated therein. 26 So in a case in Vermont 
 it is decided that on the dissolution of an injunction granted on 
 condition that a bond of a specified amount be filed, if the bond is 
 filed, with no other order as to payment of damages, the defendant 
 can recover no greater amount than the penalty of the bond though 
 it was also declared that if the injunction had issued, conditioned 
 for the payment of all the damages sustained, the case might merit 
 
 20. Roaser v. Timberlake, 78 Ala. 25. Kentucky. — Hughes v. Wick- 
 162. See Mix v. Singleton, 86 111. liffe, 11 B. Mon. 202. 
 
 194. Maryland. — Levy v. Taylor, 24 Md. 
 
 21. Boardman v. Willard, 73 Iowa, 282. 
 
 20, 34 N. W. 487. New York.— Hovey v. Rubber Tip 
 
 22. Bustamente v. Stewart. 55 Cal. Pencil Co., 38 N. Y. Super. Ct. 428. 
 115; Willson v. McEvoy. 25 Cal. 174; North Carolina. — ftansemond Tim- 
 Jennings v. Loring, 5 Ind. 250; Mc- ber Co. v. Rountree. 122 N. C. 45 29 
 Conihe v. New York, etc., R. Co., 20 S. E. 61. 
 
 N. Y. 495. South Carolina.— Hill v. Thomas, 
 
 23. Bustamente v. Stewart, 55 19 S. C. 230. 
 
 Cal. 115. Tennessee. — Rhea v. McCorkle, 11 
 
 24. Foster v. Stafford Nat. Bank, Heisk. 415. 
 
 08 Vt. 658, 5 Atl. 890. 26. Sturgis v. Knaft, 33 Vt. 486. 
 
 316
 
 Damages. § 192 
 
 a different conclusion." And in a case in the Federal courts it is 
 decided that the damages recoverable in an action on an injunction 
 bond are limited to the amount of the bond unless the injunction 
 was maliciously obtained. 28 So where the injunction prayed by 
 the bill was to prevent defendants from selling, disposing of, or 
 intermeddling with certain goods, and to obtain a decree applying 
 the same to the payment of the debt of the complainant and others, 
 the amount properly recoverable in an action on the injunction 
 bond was held to be the loss in value of the goods during the opera- 
 tion of the injunction, not exceeding the penalty of the bond with 
 interest thereon from the time of the institution of the suit. 29 And 
 in a case in New York it is held that the allowance for disburse- 
 ments and referee fees over and above the sum specified in the 
 undertaking is error. 30 And an injunction bond is only binding 
 with reference to the judgment it recites and is a security for the 
 payment of no other judgment than the recited one. 31 If, however, 
 no limit for which the makers of the bond shall be liable is estab- 
 lished either by the order of the court granting the injunction or 
 by the bond the liability of the obligors is held to be co-extensive 
 with the damages the defendants may sustain by reason of the 
 writ. 32 Again, where the penalty of a bond is fixed at a certain 
 sum, the liability of an obligor thereto will not be limited to a 
 less sum by the insertion of such less sum between his signature 
 and seal. 33 
 
 § 192. Enjoinee's duty to avert damages. — A defendant who 
 has been wrongfully enjoined may recover as injunction damages 
 whatever loss he has sustained by reason of his obeying the in- 
 junction as he reasonably understood it, and so long as he is not 
 in legal fault in understanding and obeying it as he did. 34 But a 
 
 27. Glover v. McGaffey. 56 Vt. 32. Cummins v. Miller & Co., 7 
 294. Ky. Law Rep. 670. 
 
 28. Terry v. Robbins, 122 Fed. 725. 33. Dangel v. Levy, 1 Ida. 722. 
 
 29. Levy v. Taylor, 24 Md. 283- 34. Webb v. Laird, 62 Vt. 448 20 
 
 30. Lawton v. Green, 64 N. Y. 326. Atl. 599, 22 Am. St. Rep. 121. per 
 
 31. Morgan v. Blackeston, 7 Harr. Rowell, J.: "The giving way of the 
 &. J. (Md.) 61. dam being due to the defendant'* 
 
 317
 
 § 102 Damages. 
 
 party being enjoined from doing one thing cannot refrain from 
 another and quite distinguishable thing, and recover damages, as 
 caused by the injunction, which in fact resulted from his own 
 stupidity. 35 The party enjoined may obey the injunction according 
 to its spirit as well as its letter, and therefore if the party obtain- 
 ing an injunction would be safe from the possible consequences 
 of a construction by the other party that, would enlarge the scope 
 of it beyond what he intended it should be, he must see that it is 
 made too plain to reasonably admit of such construction. 36 The 
 party enjoined should do nothing to increase his opponent's 
 damages, and should do all he reasonably can to diminish them ;" 
 but for this purpose he is not bound to incur any danger or assume 
 any unusual risks to himself or his property, and is not to be held 
 rigidly and absolutely to the adoption of that course which would 
 save the plaintiff from loss. While it is the duty of a defendant, 
 in an action wherein a temporary injunction has been granted, to 
 do nothing to enhance, and to do all that he reasonably can to 
 diminish the damages tiherefrom, he is not bound to incur any 
 hazard, and is not responsible if, adopting such course as experi- 
 enced and competent men would deem prudent and proper under 
 the circumstances, another course might have been taken, equally 
 safe and proper, which would have reduced the damages. 38 The 
 Missouri doctrine is that the party enjoined should not stand by 
 and allow damages to be incurred which by reasonable exertion 
 
 obeying the injunction as he had a stand it. A party cannot shield him- 
 
 right to understand it, he can recover self from the legitimate consequences 
 
 for rebuilding it and for the neces- of a rightful obedience to the behests 
 
 sary loss of the use of his mill for the 01 the injunction procured by him; 
 
 time required to rebuild." nor can he be heard to claim that 
 
 35. Kulp v. Bowen, 122 Pa. St. 78, the other party should not yield such 
 15 Atl. 717. obedience, nor claim damages for 
 
 36. Webb v. Laird, 59 Vt. 116, 118, himself for such obedience." 
 
 7 Atl. 465, per Ross, J.: "The ora- 37. Parsons v. Sutton. 66 N. Y. 
 
 tor also should have known, for he 98; Eten v. Luyster, 60 N. Y. 252; 
 
 was fully cognizant of the situation Dillon v. Anderson, 43 N. Y. 232; 
 
 of the dam, that it would be endan- Hamilton v. McPherson, 28 N. Y. 72. 
 
 gered by a compliance with the in- 38. Roberts v. White, 73 N. Y. 
 
 junction in the manner in which the 375. 
 defendant had the right to under- 
 
 318
 
 Damages. 
 
 193 
 
 on his part could be averted, and if he does he will not be allowed 
 to recover them in an action on the bond. 39 
 
 § 193. Damages to stockholders. — Under the rule that no 
 damages can be recovered in an action on an injunction bond, which 
 are not the actual, natural and proximate result of the injunction, 
 a corporation which is wrongfully enjoined cannot recover, under 
 the bond given to it, damages incidentally and indirectly caused 
 by the injunction to its individual stockholders; for a corporation 
 being a legal entity which is wholly distinct and separate from its 
 stockholders, an indemnity bond given to it has no implied cove- 
 nant for their protection. 40 
 
 39. Alliance Trust Co. v. Stewart, 
 115 Mo. 236 21 S. W. 793; Douglass 
 v. Stephens, 18 Mo. 366; Chicago, S. 
 F. & C. R. Co. v. McGrew, 104 Mo. 
 282, 291, 15 S. W. 931; Waters v. 
 Brown, 44 Mo. 303. 
 
 40. Eaton v. Larimer & Weld Res- 
 ervoir Company, 3 Col. 366, 33 Pac. 
 2/8, per Bissell, C. J.: "During the 
 progress of the trial proof was offered 
 which tended to show that the stock- 
 holders of the reservoir company had 
 suffered large loss in the destruction 
 and diminution of their crops, for the 
 want of water which they were un- 
 able to obtain because of the issuance 
 of the writ against the reservoir com- 
 pany. While the objection to the 
 testimony was very general, yet the 
 court was directly requested to in- 
 struct the jury that the reservoir 
 company could ' recover no damages 
 on account of any that may have been 
 sustained by the individual share- 
 holders.' This the court refused to 
 do, but it generally instructed the 
 jury that they were entitled to take 
 into consideration any damages sus- 
 tained by the plaintiff and done to 
 the crops, because of the loss and 
 non-receipt of the water. It is true 
 
 that the instruction given, in general 
 terms, charged the jury that it was 
 the company which was entitled to 
 recover the damages resulting from 
 the loss of crops, but that does not 
 of itself remedy the difficulty, or re- 
 move the error which the court com- 
 mitted in refusing to give the charge 
 which the defendants requested. With- 
 out attempting, by the processes of 
 inclusion and exclusion, to give an 
 absolutely accurate definition of a 
 corporation, it may be termed an ar- 
 tificial person, created by law, with 
 many of the powers and responsibil- 
 ities of the natural person, and with 
 many which are peculiar to its own 
 artificial existence. For the purpose 
 of enforcing its obligations, determin- 
 ing its responsibilities, subjecting it 
 to compulsory performance of its 
 contracts, or requiring it to respond 
 in damages for torts which have been 
 committed in its name and by its au- 
 thority, the law regards it as an en- 
 tity, wholly distinct and separate 
 from its directory or its stockholder*. 
 The converse is equally true. Or- 
 dinarily it, and it only, may bring 
 suit to enforce agreements to which 
 it is a party, and ask judgment for 
 
 319
 
 §§ 104, 195 
 
 Damages. 
 
 S 194. Wages and current expenses as damages. — Where a 
 person's business is suspended, or his factory closed by an injunc- 
 tion, the salaries and wages he is obliged to pay, under subsisting 
 contracts, and the expense of caring for his idle property, may be 
 damages caused by the injunction.' 41 And where defendant was 
 delayed in the completion of his building, by be ing restrained from 
 tearing down an old wall, the increased cost of building was 
 allowed as damages. 42 
 
 § 195. Depreciation of value as damages. — Depreciation in the 
 value of property, from the loss of a market, or from a change 
 in market value during the operation of an injunction, is a very 
 common damage caused to the party enjoined. Thus, where the 
 plaintiff, claiming certain shares of stock, obtained, on giving an 
 
 damages which it has sustained hy 
 reason of the wrongs done to it and 
 its property. These well-settled prin- 
 ciples demonstrate the inaccuracy of 
 rule laid down by the court by 
 which the jury should measure the 
 damages resulting from the operation 
 of the writ. The su.t was brought 
 by the complainants against the res- 
 ervoir company alone. The writ was 
 against it. The bond to support it 
 was a promise to respond to the cor- 
 poration for whatever damages that 
 artificial being should sustain. By 
 no process of reasoning can the bond 
 be made to include a covenant to 
 protect the stockholders of the cor- 
 poration from any loss which should 
 fall on them because of the failure 
 of the company to discharge its con- 
 tracts, unless it should be determined 
 in some leg il way that the reservoir 
 company was responsible to the con- 
 tr c.ing parties lor the failure to de- 
 liver water, under some valid under- 
 taking into which it had entered. 
 No such question is presented. The 
 record raises only the naked inquiry 
 
 whether, when a corporation sues on 
 a bond running to it, it can include 
 in its claim for damages those which 
 have incidentally fallen on its stock- 
 holders, without proof that they have 
 been compelled to respond for a 
 breach of some valid contract, into 
 which they had antecedently entered, 
 and which they were prevented from 
 performing by tha bond in suit or a 
 showing that they have rightfully 
 liquidated the claims asserted against 
 it. The statement of the query fur- 
 nishes its own refutation. The cor- 
 poration waa not fanning the lands 
 on which the crops were sown that 
 sullered from the failure to deliver 
 the water, lliey were the property 
 of third persons, who were not parties 
 to the action in which the writ is- 
 sued, and who were not nominated in 
 the bond on whicn the suit is based." 
 
 41. Wood v. State, GO Md. 01. 5 
 Atl. 476, where the salary of a gen- 
 eral manager and the pay of a watch- 
 man were allowed as d mages. 
 
 42. Roberts v. White, 73 N. Y. 
 375. 
 
 320
 
 Damages. § 196 
 
 undertaking to abide by any order the court should make as to 
 damages, an interlocutory injunction, restraining the shareholders 
 from parting with their shares, and at the trial his action was dis- 
 missed, it was held that the damages payable by plaintiff was not 
 the difference between the price of the shares when the action was 
 dismissed and the highest price at which they had been quoted, 
 but the difference between the price when the injunction was 
 granted and the price when a summons asking for a sale was 
 issued. 43 And when delay in the sale of personal property is 
 caused by an injunction, and depreciation in the salable value of 
 the property is an incident of the delay, the depreciation is the 
 measure of damages caused by the injunction. 44 The principal 
 and the security on an injunction bond, and on a forthcoming 
 bond, by means of which the principal arrested the sale, and ob- 
 tained the possession, and enjoyed the use of working animals 
 seized by a party, will be held in solido for the depreciation in 
 value of said animals as the result of bad treatment while in the 
 possession of the principal on such bonds. 45 
 
 § 19 G. Interest when allowed as damages. — When the effect of 
 an injunction is to deprive the party enjoined of the use of money 
 
 43. Mansell v. British Linen Bank depreciation of one-half the cost price 
 (1892), 3 Ch. D. 159. of the beds, interest on what he had 
 
 44. Meysenburg v. Schlieper, 48 paid for them, and his advertising 
 Mo. 42G. Plaintiff obtained an in- expenses. The other defendant, who 
 junction against defendants, restrain- was the manufacturer, had a lot of 
 ing them from making or selling a beds on hand when suit was insti- 
 foid-bed, on the ground that it in- tuted, and had prepared to manu- 
 fringed plaintiff's patent. On final facture them on an extensive scale, 
 hearing the bill was dismissed for Held, that he should be allowed as 
 want of equity, and defendants filed damages the difference between the 
 a suggestion of damages. If ap- present value and cost of making 
 peared that within a ytar after the them, and the damage sustained 
 injunction issued the demand for that from stoppage of business; but not 
 class of beds fell off so much that it the profits he m'ght have made if 
 was unprofitable to manufacture he had sold the beds, nor for storage, 
 them; that when suit was begun, one nor for interest on loss in value on 
 of the defendants had on hand, for the cost. Tobey Furniture Co. v. 
 sale, ten beds, and had spent some Colby, 35 Fed. 592. 
 
 money in advertisement. Held, that 45. Lallande v. Trezevant, 39 La- 
 
 he should be allowed as damages a Ann. b30, 2 So. 573. 
 
 321 
 21
 
 §196 
 
 Damages. 
 
 winch is due him, interest thereon during the pendency of the 
 injunction may be a proper measure of his damage. Thus where 
 a judgment creditor was enjoined from the collection of his judg- 
 ment and the injunction was dissolved as wrongful, the measure of 
 his damage as against the sureties was held to be the interest on 
 the judgment for the time the injunction was in force. 46 Where 
 judgment creditors were enjoined from selling their debtor's land, 
 and a year later the injunction was dissolved and the sale made, 
 but nob for enough to pay the judgment, it was held that a year's 
 interest on the purchase money should be allowed as damages. 47 
 And where a corporation has been restrained by injunction from 
 collecting the dividends due to its stockholders, and the injunction 
 is afterwards dissolved, the stockholders may recover simple 
 interest' thereon from the time the dividends were declared, pend- 
 ing the injunction, up to the period of the dissolution thereof. 48 
 
 46. Neal v. Taylor, 56 Ark. 521, 
 20 S. W. 352. In an assessment of 
 damages upon the disso'ution of a 
 temporary injunction restraining de- 
 fendants from completing a work un- 
 dertaken by contract there is no 
 error in an instruction that defend- 
 ants are entitled to 6 per cent, upon 
 the money detained from them under 
 their contract, during the pendency 
 of the injunction, from the date on 
 which they would have completed the 
 contract until date of dissolution, to 
 reasonable counsel fees and expenses, 
 and compensation for loss of time in 
 defending against the injunction and 
 reasonable costs for putting the 
 work into the same condition it was 
 in when the injunction was served, 
 provided the construction was proper 
 in the first instance, and the deteri- 
 oration not due to faulty construc- 
 tion. St. Louis R. Co. v. Schneider, 
 30 Mo. App. 620. 
 
 47. Hill v. Thomas, 19 S. C. 230. 
 In Graham v. Campbell, L. R. 7 Ch. 
 D. 490, the vendor of land, who was 
 
 enjoined from completing the sale, 
 was not allowed consequential dam- 
 ages caused by the delay but only 
 interest upon the purchase price. 
 
 48. Heck v. Bulkley (Tenn.), 1 S. 
 W. 612. A judgment in favor of the 
 plaintiff was a lien on a lot of land 
 belonging to the defendant, and ex- 
 ecution had issued against the same. 
 An injunction su't brought by the 
 defendant to res. rain the sale was 
 dismissed. Plaintiff had a second ex- 
 ecution issued, and, at the execution 
 sale, bid in the lot for the amount 
 of his execution. If the premises 
 had been sold under the first levy, 
 and if the plaintiff had bought them 
 in, he would have come into posses- 
 sion 17 months earlier than he did. 
 In an action on the injunction bond 
 for the costs of the first execution, 
 and damages for the delay, held, that, 
 in the absence of any averment to the 
 contrary, it must be assumed that the 
 costs made on the first execution, 
 and the accrued interest on the judg- 
 ment, were embraced in the second 
 
 322
 
 Damages. 
 
 $197 
 
 But where interest is not expressly stipulated for in the undertak- 
 ing, its allowance as damages is a matter of discretion. 49 
 
 § 197. Rents as damages; injunction against asserting owner- 
 ship. — The rental value of the premises, the use of which is lost 
 through an injunction, is a proper element of damage. It was so 
 held where the defendant was deprived by the injunction of the 
 use of his saw mill; 50 and where the injunction delayed him in 
 the completion of a building he had commenced. 51 In a case in 
 New York it is decided that where an injunction operates to 
 restrain the collection of rent the damages are to be estimated on 
 the basis of the loss of rent by reason of the insolvency of the 
 tenants or otherwise during the pendency of the injunction. 62 
 
 execution, and that the full amount 
 of that execution was made notwith- 
 standing it was the plaintiff who bid 
 in the property. Johnston v. Moser, 
 72 Iowa, 654, 34 N. VV. 459. 
 
 49. Tobey Furniture Co. v. Colby, 
 35 Fed. 592. The only liability on 
 a bond given in a suit to enjoin a 
 Bale of land under a decree is for 
 such damages as were caused by the 
 delay in the execution of the decree. 
 Staples v. White. Handley & Co., 88 
 Tenn. 30, 12 S. W. 339. In an action 
 on an injunction bond for costs al- 
 leged, to have been incurred in ob- 
 taining a dissolution of the injunc- 
 tion, it appeared that plaintiff was 
 proceeding to sell certain lands under 
 a decree of foreclosure, when defend- 
 ant, claiming to be the owner of the 
 lanas under a tax deed, brought an 
 action to enjoin the sale and to quiet 
 his title, and filed the bond sued on. 
 Held, that the claim of plaintiff for 
 the value of the use of the land for 
 the time he was kept out of posses- 
 sion, or interest on the sum for which 
 he would have bid it in at the sale, 
 depends on contingencies which can- 
 
 not be known, and should not be al- 
 lowed. Bui lard v. Harkness, 83 Iowa, 
 373, 49 fc. W. 855. 
 
 50. Wood v. State, 66 Md. 61, 5 
 Atl. 476. 
 
 51. Roberts v. White, 73 N. Y. 
 375. Under the Missouri statute pro- 
 viding that an injunction bond must 
 be in a sum sufficient " to secure the 
 amount or other matter to be en- 
 joined, and all damages that may be 
 occasioned by such injunction," a 
 party who has been enjoined from 
 proceedirg in a partition suit, to 
 whom the rents have been awarded 
 on dissolution of the injunction, may 
 recover under the injunction bond the 
 amount of such rents lost and attor- 
 ney's fees occasioned by reason of 
 the injunction ; but a party as to 
 whom no restraining order has been 
 granted, and who is interested in the 
 subject-matter of the suit as a prior 
 lienor, will not be awarded attorney's 
 fees. Follow ay v. Holloway. 103 Mo. 
 274, 15 S. W. 536. 
 
 52. McDonald v. James, 47 How. 
 Prac. (N. Y.) 474. 
 
 323
 
 § 107 Damages. 
 
 Where a person is restrained from exorcising ownership over his 
 real property he is entitled to such damages as are the necessary 
 and proximate result of such deprivation. Thus where a farmer 
 while engaged in plowing and seeding in January was enjoined 
 from the use of his land, and the injunction was not dissolved until 
 December, he was held entitled as damages not merely to the rental 
 value of the land but to the value of the crop he would have raised. 53 
 And where a party is enjoined from asserting his ownership in any 
 way to property and during the pendency of the injunction the 
 plaintiff carries off and converts the property to his own use the 
 measure of damages in an action on the injunction bond is prima 
 facie the value of the property in question. 54 And where summary 
 proceedings are wrongfully enjoined the rent lost by the delay is 
 the natural measure of the damages caused by the injunction. 55 
 But where a person enjoined from selling certain land under de- 
 cree of foreclosure claims he himself would have bid it in had the 
 sale not been thus prev< nted, he is not entitled to the value of the 
 use of the land pending the injunction, because it is impossible 
 to know what would have been the result of the sale. 56 And where 
 the sale of lands under a mortgage is restrained it is decided that, 
 upon a subsequent dissolution of the injunction, there can be no 
 recovery on the bond, for rents collected while the injunction was 
 in force, as the appointment of a receiver to collect and hold the 
 rents was not prevented by the injunction. 57 And where the re- 
 moval of buildings by the lessee has been enjoined the measure of 
 damages is held to be interest on the value of the materials therein 
 and not the rental value of the buildings which it was necessary to 
 
 53. Rice v. Cook, 92 Cal. 144, 28 debt and interest, the assignee of the 
 Pac 219. mortgagee is not entitled to damages 
 
 54. Barton v. Fisk. 30 N. Y. 166. by reason of an injunction restrain- 
 
 55. Bray v. Poillon, 2 Hun (N. ing her from collecting the rents on 
 Y ) 383. default, unless, on a sale of the land 
 
 56. Bullard v. Harkness, 83 Iowa, under the mortgage, it failed to sat- 
 373, 49 N. W. 855; Johnson v. Moser, isfy the mortgage, and the rent was 
 72 Iowa, 654. Under a mortgage em- necessary thereto. Schening v. Cofer, 
 powering the mortgagee, on default. 97 Ala. 726, 12 S\ 414. 
 
 to realize out of the land, in rents. 57. Curry v. American Freehold 
 
 or by sale thereof, sufficient to pay Land M. Co., 124 Ala. 614, 27 So. 
 the expenses of foreclosure, and the 454. 
 
 324
 
 Damages. 
 
 §198 
 
 tear down in order to remove them. 57a Again, if the party enjoined 
 was not in fact entitled to possession, or would have had to account 
 for the rents if he had received them, then they are not to be 
 allowed as damages. 58 
 
 § 198. Loss of profits as damages. — The loss of profits sus- 
 tained by the person enjoined during the suspension of his business 
 by the injunction is often too contingent and conjectural to serve 
 as a reliable measure of damages in defendant's action therefor on 
 the injunction bond. 59 Thus where an injunction restrains the 
 extension of a street railroad, possible profits which might have 
 
 57a. Ridpath v. Merriam, 22 
 Wash. 311, 6J Pac. 1120. 
 
 58. In an action on an injunction 
 bond executed by a mortgagor on the 
 granting of an injunction suspending 
 tue operation of a decree of fore- 
 closure, the plaintiff mortgagee can- 
 not recover for timber sold from the 
 premises, or for the rental value of 
 the premises, during the pendency of 
 tne injunction, and before the decree 
 becomes absolute, when there is no 
 redemption, and the value of the se- 
 curity is greater than the mortgage 
 debt. Hill v. hill, 59 Vt. 125, 7 
 Atl. 4G8. 
 
 59. An injunction deprived thg 
 owners of a portable saw mill of its 
 use for six weeks. Held, in an action 
 on the bond, that the rental value of 
 the mill for that time was recover- 
 able, as was the salary of its man- 
 ager during that time, earned under 
 an existing contract, and the amount 
 paid to a watchman, but defendant's 
 claim for loss of profits was rejected. 
 Wood v. State, GO Md. 61, 5 Atl. 47G. 
 See, also, Lehman v. McQuown, 31 
 Fed. 138. In Livingston v. Exum, 
 19 S. C. 223, plaintiff enjoined the 
 defendants Phillips and Exum from 
 getting crude turpentine on lands 
 
 which he claimed; final judgment was 
 rendered for defendants and the in- 
 junction dissolved. Exum was not 
 engaged in getting crude turpentine 
 but Phillips was, and was under con- 
 tract to furnish to Exum for distilla- 
 tion all that he got. It was held that 
 the loss to Phillips was caused by 
 the injunction, but that the loss to 
 Exum was not the natural and prox- 
 imate effect of the injunction, and 
 was too remote and uncertain, rest- 
 ing entirely upon the question of 
 net profits which he might have made 
 had Phillips furnished the crude ma- 
 terial. " 11 is damages," as the court 
 well remarks, " arose from the 
 breach of contract by Phillips; that 
 this breach was caused by plaintiff's 
 injunction cannot transfer Exum's 
 claim against Phillips over upon the 
 plaintiff. Besides his claim for dam- 
 ages being dependent upon the fact 
 whether he would have realized any 
 profit out of the contract with Phil- 
 lips, even had it been complied with, 
 makes the whole claim so uncertain, 
 doubtful and remote as properly de- 
 manded its exclusion in the estimate 
 made by the master.'' See, also, La 
 Amistad De Rues, 5 Wheat. (U. S.) 
 385, 5 L. Ed. 115. 
 
 325
 
 § 199 Damaoes. 
 
 accrued from such extension cannot be allowed as damages to the 
 railroad company. 60 And where an injunction caused a cessation 
 of defendant's factory, which it was proved could turn out a cer- 
 tain amount of goods, it was decided on appeal that it could not be 
 inferred from such evidence that the defendant would have received 
 orders to that amount but for the injunction; and therefore that 
 a loss of profits thereon could not be allowed as damages caused 
 by the injunction. 61 
 
 § 199. Loss of profits sometimes allowed. — While the profits 
 which the defendant would have made, had his enterprises not been 
 suspended by the injunction, are generally too contingent and 
 speculative to be recovered as damages in an action on the injunc- 
 tion bond, yet, when a party is prevented by injunction from carry- 
 ing on a thoroughly established and largely profitable business, he 
 must be compensated for the loss of profits thereby caused, or an 
 injunction in such a case would be a very convenient way of getting 
 rid of a business rival. 62 In this connection it is said in a recent 
 case in Illinois: "Where by the issuance of an injunction, a 
 business is unavoidably suspended, and thereby injured, damages 
 may be allowed. It may not be possible to show by demonstration 
 the precise extent of such damages, but profits for a reasonable 
 period next preceding the time, when the injury was inflicted, may 
 be taken as the measure of such damages, and as the basis of an 
 estimate thereof, leaving the other party to show that, by depres- 
 sion in trade or other causes, they would have be n It ss." 63 So 
 damages for having been wrongfully enjoined from operating a 
 
 60. Chicago City R. Co. v. Howi- upon this question evidence of the 
 son. 86 111. 215. profits which he was actually mak- 
 
 61. Manufacturers, etc.. Bank v. ing is admissible. Allison v. Chand- 
 Foik, 50 N. Y. St. Rep. 802. ler. 11 Mich. 558; Chapman v. Kirby, 
 
 62. Lambert v. Haskell. 80 Cal. 49 111. 219; Simmons v. Brown, 5 R. 
 611 22 Pac. 327, per Hayne, J.: 1.299; Gibson v. Fischer, 68 Iowa, 
 "The best considered cases agree that 30, 25 N. W. 914; Goebel v. Hough, 
 where an established business is 26 Minn. 256; Shafer v. Wilson, 44 
 wrongfully injured or destroyed the Md. 268." 
 
 owner of the business can recover 63. Landis v. Wolf, 206 111. 392, 
 
 damages sustained thereby, and that 399, 69 N. E. 103. Per Magruder, J. 
 
 326
 
 Damages. §§ 200, 201 
 
 certain mine may include lost profits. 64 But where the profits 
 claimed to have been lost by reason of an injunction would have 
 depended on the carrying out of special contracts between third 
 persons and the party enjoined, they are generally too speculative 
 and remote to be allowed as damages. 65 
 
 § 200. Loss of time and anxiety; damnum absque injuria. — 
 Under an injunction bond conditioned for the payment of such 
 damages as defendant shall sustain by reason of the injunction, 
 compensation for his own time and effort devoted to getting rid 
 of the injunction, and for his mental strain and anxiety while so 
 employed, is not allowed as damages. Time and attention thus 
 bestowed the law regards a3 having been given by the party to 
 his own business, and is deemed damnum absque injuria. 66 
 
 § 201. Exemplary damages not recoverable. — Where an in- 
 junction is procured by plaintiff without malice, and in the honest 
 belief that injunction is the proper remedy, the defendant cannot 
 recover exemplary or punitive damages, and there seems to be no 
 authority that such damages are recoverable even for malice in an 
 action on the injunction bond. 67 But there is in Texas and some 
 
 64. Findlay v. Carson, 97 Iowa, not a damage. Tliere is such a thing 
 537, 66 N. W. <59. known to the law a9 damage without 
 
 65. Tobey Furniture Co. v. Colby, injury, and this occurs where dam- 
 35 Fed. 592. age results from an act or omission 
 
 66. Cook v. Chapman, 41 N. J. which the law does not esteem an 
 Eq. 152, 100, 2 Atl. 286. per Van injury. . . . Every litigation re- 
 Fleet, V. C. : "The master allowed quires more or less time and trouble, 
 the defendant $2,500 as compensation The law makes it the duty of liti- 
 for his time and services in procur- gants to be diligent and vigilant, but 
 ing the dissolution of the injunc- it has never been understood that a 
 tion, and for the mental strain and successful litigant was entitled as 
 anxiety he suffered in consequence against his adversary, to compensa- 
 of the injunction. This allowance tion for the time and attention which 
 is contrary I think, to both precedent it was necessary for him to bestow 
 and principle. An attempt was made upon the litigation." In Riggs v. 
 to get a similar allowance in Ed- Bell, 42 La. Ann. 666, 7 So. 787, 
 wards v. Bodine, 4 Edw. Ch. 292; a claim of damages for loss of time 
 aff'd, 11 Paige, 223. Both the vice was rejected. 
 
 chancellor and chancellor rejected the 67. Galveston, H. & S. A. R. Co. T. 
 
 claim, declaring that suofa loss was Ware, 74 Tex. 47, 11 S. W. 918. 
 
 327
 
 § 201 Damages. 
 
 other States a statutory allowance of ten per cent, as damages 
 where the collection of a money judgment has been enjoined for 
 the sake of delay. 68 It was decided in Illinois in 18G2, that where 
 an injunction bond had been given an action on the case would not 
 lie for maliciously or improperly causing an injunction to be 
 issued, but that the remedy must be on the bond ; c9 in accordance 
 with the principle that when a party has taken a higher security 
 his suit must be brought on that security. 70 In Louisiana, however, 
 it is eleclared in an early rase that it is the duty of the courts to mulct 
 in exemplary damages those who wantonly abuse the equitable 
 remedy of injunction.' 1 And in 1849 the Supreme Court of Ken- 
 tucky expressed the opinion that the common law gave an action 
 on the case for damages for suing out an injunction maliciously, 
 if proper averments of malice and absence of probable cause were 
 made, and that actions on the case and on the bond not being 
 co-extensive remedies the former was not merged in the latter; 72 
 and in 1892 the Appellate Court of Illinois was inclined to regard 
 the Kentucky decision as more consistent with principle than that 
 of its own State. 73 And in a recent case in a Federal court it is 
 declared that where an injunction is maliciously obtained punitive 
 damages may be awarded. 74 
 
 68. Galveston. H. & S. A. R. Co. v. the injunction bond in a case in 
 
 Ware, 73 'lex. 47, 11 S. W. 918, per which the Supreme Court could find 
 
 Gaines, J.: "We incline to the opin- no evidence of malice, and that court 
 
 ion that such (exemplary) damages did not hesitate to reverse the judg- 
 
 are not recoverable. The doctrine ment entered on the verdict, 
 
 seems to be recognized in High. Inj. 69. Gorton v. Brown, 27 111. 489. 
 
 § 1665, but the only case cited in 70. Gorton v. Brown. 27 111. 489, 
 
 support of the text is Brown v. 495; Touissant v. Martinnant, 2 T. 
 
 Tyler, 34 Tex. 168, in which the ques- R. 104; Cutter v. Powell, 6 T. R. 
 
 tion was not involved. The statutory 324. 
 
 allowance of 10 per cent, damages 71. Dorsey v. Vaughan, 5 La. Ann. 
 
 where the collection of money has 155. cited and followed in Pendleton 
 
 been enjoined and tne injunction pro- v. Eaton, 23 La. Ann. 435. 
 
 cured for delay, is in the nature of a 72. Cox v. Taylor, 10 B. Mon. 
 
 penalty and tends to indicate that no (Ky.) 17, 21. 
 
 other exemplary damages are to be 73. Crate v. Kohlsaat, 44 111. App. 
 
 allowed." In Brown v. Tyler, 34 Tex. 460. 
 
 168, the jury awarded $1,425 puni- 74. Terry v. Robbins, 122 Fed. 
 
 tory damages against the sureties on 725. 
 
 328
 
 Damages. 
 
 §202 
 
 § 202. Damages accruing after final decree. — As the functions 
 of a preliminary injunction cease when the final decree is made, 75 
 and the injunction bond is given only on the preliminary injunc- 
 tion, damages which accrue subsequent to the final decree, though 
 such decree be reversed on appeal, cannot be recovered on the bond ; 
 and the rule would be the same if the bond expressly provided for 
 the payment of such subsequent damages unless authorized to that 
 effect by statute. 76 And attorney's fees are not allowed for services 
 
 ' 75. Jackson v. Bunnell, 113 N. Y. 
 216, 21 N. E. 79. 
 
 76. Lambert v. Haskell. 80 Cal. 
 611, 619, 22 Pac. 327, per Hayne. J.: 
 "We think that the court erred in 
 allowing the plaintiff to recover 
 damages accruing after the final de- 
 cree made in February, 1881. By it 
 the court decreed that the temporary 
 injunction heretofore granted be 
 made perpetual, and that said defend- 
 ant be enjoined for the space of 
 twenty years, etc. An appeal was 
 taken from this decree, and it was 
 reversed. The remittitur was filed in 
 the lower court on July 5, 1882. 
 Shortly afterward the suit was dis- 
 missed upon motion. The trial court 
 in the present case evidently pro- 
 ceeded upon the theory that the 
 plaintiff herein was entitled to re- 
 cover damages for the whole period 
 from the giving of the undertaking 
 down to the dismissal of the suit in 
 1882. . . • The position of the 
 appellants is, that all that could oe 
 recovered in any view was ' such dam- 
 ages as were sustained by the parties 
 enjoined by reason of the loss of 
 profits of their business from the 
 time the undertaking was given until 
 the injunction was made perpetual 
 by the court, i. e., between January 
 27, 1880. and February 5, 1881.' And 
 we think that this position must be 
 sustained, both as to the loss of prof- 
 
 its and as to counsel fees. The con- 
 dition of liability expressed in the 
 undertaking is, ' if the said District 
 Court finally decide that the said 
 plaintiffs were not entitled,' etc. This 
 seems to us to point to the final de- 
 cree to be made after trial of the case. 
 But even if it were otherwise — even 
 if the undertaking had expressly pro- 
 vided for a subsequent liability — if 
 such provision be outside of what is 
 required by the statute, it would be 
 void. For it is settled that a statu- 
 tory undertaking beyond what is re- 
 quired by the statute, is to that ex- 
 tent without consideration and inop- 
 erative. Powers v. Crane, 67 Cal. 
 65; People v. Cabannes, 20 Cal. 528. 
 . . . The same doctrine was laid 
 down and the very point involved 
 here was decided in Webber v. Wil- 
 cox, 45 Cal. 302. The material facts 
 of that case were identical with the 
 material facts here. A preliminary 
 injunction was granted, and after 
 trial, a final injunction was decreed. 
 The final decree was appealed from 
 and was reversed and the suit was 
 thereupon dismissed. In an action 
 upon the undertaking, it was held 
 there could be no recovery against the 
 sureties for costs or counsel fees ex- 
 pended after the rendition of the final 
 decree in the court below. And the 
 Supreme Court said : ' When the de- 
 cree for a perpetual injunction was 
 
 329
 
 §203 
 
 Damaoes. 
 
 in the Supreme Court on appeal from the order of dissolution. 77 
 But while the party enjoined is not. entitled to recover his counsel 
 fees paid on appeal from the final decree, he may be entitled to 
 counsel fees upon appeal from the order refusing to dissolve the 
 preliminary injunction where sueh order is made and appealed 
 from before the final decree is made. 78 
 
 § 20.3. Counsel fees on dissolution of injunction. — The weight 
 of authority supports the rule that' there may be a recovery as 
 damages of counsel fers expended or for which a liability has b en 
 incurred solely in procuring the dissolution of an injunction. 79 
 Put a decree assessing damages to cover solicitor's fees, upon the 
 dissolution of an injunction, is erroneous where there is no evidence 
 
 rendered the order for a preliminary 
 injunction was merged or ceased to 
 have any further effect and there- 
 after the case stood in the same con- 
 dition in respect to damages as it 
 would have done had no preliminary 
 order been made.' This case holds 
 that the function of a preliminary 
 injunction ceases upon the rendition 
 of the final decree. And upon the 
 same principle differently applied it 
 has been held that the functions of a 
 restraining order pending the issu- 
 ance of a preliminary injunction 
 cease upon the issuance of the latter. 
 Cohen v. Gray, 70 Cal. 85. It re- 
 sults that tne plaintiff cannot hold 
 the sureties in damages either for 
 loss of profits or counsel fees accru- 
 ing after the final decree in the court 
 below." See, also, Jeter v. Lang- 
 horne, 5 Gratt. (Va.) 193; Wood- 
 son v. Johns, 3 Munf. (Va.) 230, that 
 costs of appeal from final decree can- 
 not be recovered in action on in- 
 junction bond. 
 
 77. Ellwood M'f'g Co. v. Rankin, 
 70 Iowa, 403, 30 K W. 677. 
 
 78. Porter v. Hopkins, 03 Cal. 53. 
 
 79. California. — Bustamerte v. 
 Stewart, 55 Cal. 115; Ah Thaie v. 
 Quan Wan, 3 Cal. 216. 
 
 Colorado.— Belmont Min. & M. Co. 
 v. Costigan, 21 Colo. 465. 42 Pac. 
 650. 
 
 Illinois. — Marks v. Columbia Yacht 
 Club, 219 111. 417, 76 N. E. 582; Lam- 
 bert v. Alcom, 144 111. 313. 33 N. E. 
 53, 21 L. R. A. 611; Finnegan v. Al- 
 len, 60 111. App. 354. 
 
 Iowa. — Fountain v. West, 68 Iowa, 
 380, 27 N. W. 264; Behrens v. Mc- 
 Kenzie, 23 Iowa, 333, 92 Am. Dec. 
 428; Colby v. Meservey, 85 Iowa, 
 555 52 N. W. 499; Lansley v. Metert, 
 78 Iowa, 758, 42 N. W. 635. 
 
 Kansas. — Minocks v. Welles, 42 
 Kan. 39, 21 Pac. 787. 
 
 Kentucky. — May v. Deposit Bank, 
 5 Ky. Law Rep. 691. 
 
 Louisiana. — Aiken v. Leathers, 40 
 La. Ann. 23, 3 So. 357; Aiken v. 
 Leathers, 37 La. Ann. 482; Hereford 
 v. Bob.n, 14 La. Ann. 333. 
 
 Maine. — Thurston v. Haskell, 81 
 Me. 303, 17 Atl. 73. 
 
 Missouri. — Brownlee v. Ferwick, 
 103 Mo. 420. 15 S. W. 611; St. Louia 
 
 330
 
 Damages. § 204 
 
 of the value of the services having distinct reference to the dissolu- 
 tion of the injunction. 80 In this connection it is decided in a late 
 case in Louisiana that whether defendant in an injunction suit in 
 which the injunction has been dissolved should recover from the 
 plaintiff in injunction, in an action on the bond his attorney's 
 fees as damages and if so how much is to be determined by the 
 facts of each special cause and not decided by any inflexible rule. 81 
 The fact, however, that the amount claimed for counsel fees was 
 paid by the one who procured the dissolution of the injunction is 
 not conclusive of the right of such person to have that sum taxed as 
 damages. 82 
 
 § 204. Counsel fees; recovery of continued. — "While the general 
 rule is that the costs of a motion to dissolve an injunction will not 
 be allowed as damages unless it is successful, yet if the motion is 
 not denied upon the merits, or for any irregularity in making it, 
 but because the court, in its discretion, defers its decision until the 
 final hearing, and the result then shows that if the decision had 
 not been deferred, the motion should have been granted when 
 made, then the costs of the motion should be allowed as damages 
 caused by the injunction. 83 So, too, in such a case as the foregoing, 
 a trial being necessary in order to get rid of the injunction, as 
 
 I. M. & S. R. Co. v. Schneider, 30 been put by reason of the issuance of 
 
 Mo. App. 620; Bohan v. Casey, 5 Mo. an injunction and in his ultimately 
 
 App. 101. successful efforts to vacate it are 
 
 Montana. — Montgomery v. Gilbert, recoverable by him as damages. In 
 
 24 Mont. 121. 60 Pac. 1138; City of re Reed (N. Y. App. Div. 1908), 110 
 
 Helena v. Burle, 15 Mont. 429, 39 N. Y. Supp. 834. 
 
 Pac. 456; Miles v. Edwards, 6 Mont. 80. Zibell v. Barrett, 30 111. App. 
 
 180, 9 Pac. 814. 112. 
 
 New Jersey. — Cook v. Chapman, 41 81. Elms v. Wright-BIodgett Co., 
 
 N. J. Eq. 152, 2 Atl. 286. 106 La. 19, 30 So. 315. 
 
 New York. — Roberts v. White, 73 82. Dempster v. Langsingh, 234 
 
 N. Y. 375; Rose v. Post, 56 N. Y. 111. 381, 84 N. E. 1032. 
 
 603; Baylis v. Scudder, 6 Hun, 300; 83. Andrews v. Glenville Woolen 
 
 *itzpatrick v. Flagg, 12 Abb. Prac. Co., 50 N. Y. 282. In Wallace v. 
 
 189; Willett v. Scovil, 4 Abb. Prac. York, 45 Iowa, 81, it was held that a 
 
 405. party might recover for the services 
 
 But see § 210 herein. of counsel in preparing a motion and 
 
 Expenses to which a person has affidavits to dissolve the injunction, 
 
 331
 
 § 205 Damages. 
 
 well as to dispose of the issues in the suit, a counsel fee upon the 
 trial is properly allowed as damages caused by the injunction. 84 
 So where the hearing of an application for a temporary injunction 
 has been unreasonably postponed, attorney's fees necessarily in- 
 curred in effecting a dissolution of a restraining order are a proper 
 element of damage in case it is determined that the restraining 
 order should not have been allowed. 83 And in New York it is 
 decided that when a motion for an injunction pendente lite has 
 been denied and a preliminary injunction vacated and set aside, 
 the defendant on a reference to ascertain the damage sustained by 
 reason of the injunction is entitled to counsel fees incurred on the 
 return to the order to show cause, if the injunction might have 
 remained in force had the defendant failed to appear. 556 Counsel 
 fees are not recoverable unless they were necessarily incurred in 
 some successful effort to dissolve the preliminary injunction. 87 
 
 § 205. Counsel fees where injunction only relief sought. — 
 The defendant may recover counsel fees expended in procuring a 
 dissolution of the injunction when the injunction was the only 
 relief sought in the original action. 88 And it would seem to follow 
 
 if they were made in good faith, the dissolution of the injunction, 
 
 though in fact the motion was not Also, Cook v. Chapman, 41 N. J. Eq. 
 
 passed on until final hearing. 152, 2 Atl. 28G; Fountain v. West, 
 
 Only such counsel fees as were C8 Iowa, 380, 27 N. W. 264. Upon 
 
 incurred on the motion should be the question of allowing counsel fees 
 
 allowed. Lawrence v. Trainer, 136 and costs as damages, where the at- 
 
 111. 474, 27 N. E. 197 ; Elder v. Sabin, tempt to dissolve is not successful, 
 
 66 111. 126; Strong v. De Forest, 15 see Randall v. Carpenter, 88 N. Y. 
 
 Abb. Prac. (N. Y.) 427. 283; Allen v. Brown, 5 Lans. (N. Y.) 
 
 84. Andrews v. Glenville Woolen 511; Mitchell v. Hawley, 79 Cal. 301, 
 Co., 50 N. Y. 282. 21 Pac. 833. 
 
 85. Gyger v. Courtney, 59 Neb. 88. Raufman v. Evansville, 44 Ind. 
 555 81 N. W. 437. 392; Colby v. Meservey, 85 Iowa, 
 
 86. Reeves v. Sullivan, 117 App. 555, 52 N. W. 499; Thomas v. Mc- 
 Div. (N. Y.) 814, 102 N. Y. Supp. Daneld, 77 Iowa, 126, 299, 41 N. W. 
 1003. 592; Ford v. Loomis. 62 Iowa, 586, 
 
 87. Thurston v. Haskell, 81 Me. 16 N. W. 193, 17 N. W. 910; Reece 
 303, 17 Atl. 73. See Nimocks v. v. Northway, 58 Iowa, 187, 12 N. W. 
 Welles, 42 Kan. 39, 21 Pac. 787, 258; Holloway v. Holloway, 103 Mo. 
 where counsel fees were recovered on 274; Hammerslougn v. Building As- 
 
 332
 
 Damages. 
 
 §205 
 
 that where an injunction which is the only relief sought is refused 
 there may be a recovery of expenses for attorney's fees necessarily 
 incurred in defending the action. 89 So in Indiana it is decided 
 that the dismissal of an action in which an injunction bond was 
 given entitles the defendant to recover his expenses incurred in 
 making necessary resistance to that action, including reasonable 
 attorney's fees; but, if other relief was sought, the attorney's fees 
 must be restricted to those necessarily incurred in defeating the 
 injunction. 90 And in an early case in New York it is held that 
 reasonable counsel fees incurred in the defense of a suit to restrain 
 the payment of an award are recoverable upon a bond conditioned 
 for the payment of all costs and damages arising from the obligor's 
 
 soc'n, 79 Mo. 81; Creek v. McManus, 
 13 Mont. 152, 32 Pac. 675. See Olds 
 v. Cary, 13 Or. 302, 10 Pac. 786. In 
 Miles v. Edwards. Mont. 180. 9 Pac. 
 814, in an action on a bond given 
 upon the procuring of a restraining 
 order which is subsequently dis- 
 solved the plaintiff, it was held, is 
 entitled to recover as an element of 
 his damages for reasonable attorney's 
 fees paid by him in procuring the 
 dissolution of such order and in re- 
 sisting the application for a final in- 
 junction, tnough the services of the 
 attorney were performed subsequent 
 to the date limited by the order for 
 the hearing of the application for 
 the injunction. But the court dis- 
 tinguished that case from Campbell 
 v. Metcalf, 1 Mont. 379; Allport v. 
 Kelly, 2 Mont. 343, " where the re- 
 lief by injunction was ancillary to 
 the main action, and services were 
 rendered by the attorneys in both the 
 auxiliary and main actions upon 
 which a gross value was fixed. Here, 
 so far as appears, no services were 
 rendered for which compensation 
 was made and damages claimed ex- 
 cept about the injunction." Where 
 the Supreme Court of Appeals re- 
 
 verses a decree making an injunction 
 perpetual, and dismisses the bill in 
 a suit in which an injunction is the 
 only relief asked a reasonable amount 
 paid counsel for procuring the disso- 
 lution of the injunction may be re- 
 covered, in addition to the taxable 
 attorney's fee, in a suit on a bond 
 conditioned for the payment of all 
 costs and of all damages sustained in 
 case the injunction should be dis- 
 solved. State v. Medford, 34 VV. Va. 
 633, 12 S. E. 804. Where an injunc- 
 tion is the only relief sought in an 
 action, defendant may recover for at- 
 torney's fees necessarily incurred in 
 answering and defending the action 
 on the merits., in an action on the in- 
 junction bond. Lansley v. Nietert, 
 78 Iowa, 75o, 42 N. W. 635. See, 
 al?o, Aiken v. Leathers, 40 La. Ann. 
 23, 3 So. 357; New Nat. Turnpike 
 Co. v. Dulaney, 86 Ky. 516, 6 S. W. 
 590; Moriarty v. Gait, 125 HI. 417, 
 17 N. E. 714. 
 
 89. Jamison v. Houston, 74 Miss. 
 890. 21 So. 972; Creek v. McManus, 
 13 Mont. 152, 32 Pac. 675. 
 
 See, also, cases in preceding note. 
 
 90. Swan v. Timmons, 81 Ind. 243. 
 
 333
 
 § 206 Damaqp;s. 
 
 obtaining an injunction or from his contesting payment. 91 But in 
 a case in Maine it is decided that damages within the meaning of 
 a bond is the pecuniary loss arising from the restraint imposed 
 by the injunction and not the expenditure in the defense of the 
 suit. In this case the object of the bill was a permanent injunc- 
 tion and it was said that the expenditure for counsel fees in- 
 curred in resisting the prayer of the bill, that is in defending the 
 suit, was not damages within the meaning of the bond. 92 In Ken- 
 tucky the rule is that when an injunction is merely ancillary or in 
 aid of the relief sought or is relied on to secure the relief when 
 obtained a recovery may be had on the bond for the payment of 
 reasonable attorney's fees when the defendant has succeeded in 
 dissolving the injunction. But where the injunction is the relief 
 sought and in fact gives the relief if sustained, there can be no 
 recovery of attorney's fees in an action upon the bond. 93 In a case 
 in Illinois it is held that where the relief sought by the bill was 
 a perpetual injunction, the injunction pendente lite being a mere 
 ancillary writ, the object of which was to preserve the statu quo 
 until a final hearing could be had, there could be no recovery for 
 counsel fees rendered in the general defense of the suit, the court 
 not favoring the view that as the only relief sought by the bill 
 was an injunction, the entire defense was virtually directed to the 
 object of procuring a dissolution of the injunction, and therefore 
 that all the services rendered in the case must be deemed to have 
 been rendered for that purpose. 94 And a view similar to that in 
 the Illinois case is taken in a case in California. 95 
 
 § 206. Counsel fees where injunction ancillary to principal 
 
 91. Corcoran v. Judson, 24 N. Y. from cutting timber from certain 
 106. land, defendant was not, upon the 
 
 92. Barrett v. Bowers, 87 Me. 185, dissolution of the injunction, entitled, 
 32 Atl. 871. in an action on the bond, to recover 
 
 93. Tyler v. Hamilton, 108 Ky. counsel fees. 
 
 120, 55 S. W. 920; Turnpike Co. v. 94. Lambert v. Alcorn, 144 111. 
 
 Dulaney. 86 Ky. 518. 6 S. W. 590. 313, 33 N. E. 53, 21 L. R. A. 611. 
 
 See. also. Epenbaugh v. Gooch. 15 95. San Diego Water Co. v. Pa- 
 
 Ky. Law Rep. 576, holding that cine Coast S. S. Co., 101 Cal. 216, 
 
 where the sole purpose of an in- 35 Pac. 651. 
 junction was to restrain defendant 
 
 334
 
 Damages. 
 
 207 
 
 relief. — Where the injunction is ancillary to the principal relief 
 sought by the bill, and its dissolution is only incidental to the 
 defense made, and the counsel fees and expenses are incurred in 
 defending the suit generally, they cannot be assessed as damages. 96 
 So it is decided in a late case in Alabama that where the injunction 
 is not the principal aim of the suit, but is merely incidental to other 
 relief sought, the expenses of counsel fees incurred by the parties 
 enjoined in the defense of the main suit and irrespective of the 
 injunction cannot properly be allowed as a liability on the bond. 97 
 
 § 207. Counsel fees incurred generally in case. — Upon dissolu- 
 tion of an injunction on motion, damages should not be awardt d 
 for counsel fees incurred generally in the case, since such services 
 may include matters not connected with the injunction, 98 for it is 
 
 96. Tabor v. Clark. 15 Colo. 434, 
 25 Pac. 181; Walker v. Pritchard, 
 135 111. 103. 25 N. E. 573; Elder v. 
 Sabin. 60 111. 127 ; Alexander v. Col- 
 cord. 85 111. 323; Blair v. Readincr. 
 99 111. 600; Field v. Medcnwald, 26 
 111. A pp. 642; Carrol Co. v. Iowa R. 
 L. Co., 53 Iowa. 685, 6 N. W. 69; 
 Langworthy v. McKelvey, 25 Iowa, 
 48; Noble v. Arnold, 23 Ohio St. 
 264; Riddle v. Cheadle, 25 Ohio St. 
 278; Livingston v. Exum, 19 S. C. 
 223. Compare Epenbaugh v. Gooeh, 
 15 Ky. Law Rep. 576. 
 
 97. Curry v. American Freehold 
 Land M. Co., 124 Ala. 614. 27 So. 
 454; citing Jackson v. Millspaugh, 
 100 Ala. 285, 14 So. 44; Boiling v. 
 Tate, 65 Ala. 417. 
 
 98. Alabama. — Boiling v. Tate, 65 
 Ala. 417, 39 Am. Rep. 5; Robertson 
 v. Robertson, 58 Ala. 68. 
 
 California. — San Diego Water Co. 
 v. Pacific Coast S. S. Co., 101 Cal. 
 216, 35 Pac. 651 ; Lambert v. Haskell, 
 80 Cal. 611, 22 Pac. 327; Porter v. 
 Hopkins, 63 Cal. 53; Bustamente v. 
 Stewart. 55 Cal. 115. 
 
 Colorado. — Tabor v. Clark, 15 Colo. 
 434 25 Pac. 181. 
 
 Illinois. — LamDert v. Alcorn. 144 
 111. 313, 33 N. E. 53. 21 L. R. A. 611 ; 
 Lawrence v. Traner, 136 111. 474, 27 
 N. E. 197; Elder v. Sabin, 66 111. 
 126; Allbright v. Smith, 68 111. 181; 
 Hamilton v. Stewart, 59 111. 330; 
 June v. Osgood, 57 111. 340; Lich- 
 tenstadt v. Fleisher, 24 111. App. 92 
 
 Kentucky. — Reading v. Davis, 6 
 Ky. Law Rep. 661. 
 
 Minnesota. — Lamb v. Shaw, 43 
 Minn. 507, 45 N. W. 1134. 
 
 Montana. — Creek v. McManus. 13 
 Mont. 152. 32 Pac. 675; Parker v. 
 Bond. 5 Mont. 1, 1 Pac. 209; Allport 
 v. Kelly, 2 Mont. 343. 
 
 New York — Newton v. Russell. 87 
 N. Y. 527; Disbrow v. Garcia. 52 N. 
 Y. 654; ten Eyck v. Sayers, 76 Hun, 
 37, 27 N. Y. Supp. 588; Fitzpatrick 
 v. Flagg, 12 Abb. Prae. 189. 
 
 Ohio.— Riddle v. Cheadle, 25 Ohio 
 St. 278. 
 
 South Carolina. — Livingston v. 
 Exum, 19 S. C. 223. 
 
 335
 
 §207 
 
 Damages. 
 
 said that an injunction bond docs not cover counsel fees for the 
 trial of the main issue, but only those for procuring the dissolution 
 of the injunction." And in those jurisdictions where there may be 
 a recovery of counsel fee? incurred in the trial of the issue in the 
 action the recovery is limited to those fees which were incurred 
 solely or principally in consequence of the injunction. 1 So in 
 Louisiana it is decided that under the rules of practice damages 
 are to be allowed for services rendered in dissolving the injunction 
 or other conservatory writ and that the weight of decision is against 
 a demand for damages for services rendered on the merits. 2 So the 
 expense which defendant is put to in defending the suit, and not 
 on account of the injunction, is not to be allowed as damages in an 
 
 West Virginia. — State v. Med ford, 
 34 W. Va. 633, 12 S. E. 8(54. 
 
 Where the injunction is ancil- 
 lary to <the principal relief 
 
 sought, fees for defending the suit 
 generally should not be assessed as 
 damages upon the dissolution of the 
 injunction. Dempster v. Langsingh, 
 234 111. 381, 84 N. E. 1032. 
 
 In an action on an injunction bond, 
 given in the United States Circuit 
 Court, it appeared that the attor- 
 neys for the defendant in the injunc- 
 tion suit were paid $500 for all their 
 services in the case; that they at- 
 tempted to get the temporary injunc- 
 tion dissolved, but failed; that af- 
 terwards the injunction was ended by 
 dismissal of the action because of a 
 recent decision ot the Supreme Court 
 of the United States determining the 
 issues against the plaintiff. It was 
 not provea that there was any sep- 
 arate or distinct amount paid to the 
 attorneys for the at'.emp to procure 
 the dissolution. Held, that it was 
 error in the suit on the bond to 
 award $400 lor attorney's fees. Mitch- 
 ell v. Hawley, 79 Cal. 301, 21 Pac. 
 833. 
 
 99. Parker v. Bond, 5 Mont. 1, 
 
 1 Pac. 209. In an action on an in- 
 junction bond for costs alleged to 
 have been incurred in obtaining a dis- 
 solution of the injunction, it ap- 
 peared that plaintiff was proceeding 
 to 6ell certain lands under a decree 
 of foreclosure, when defendant, claim- 
 ing to be the owner of the land under 
 a tax deed brought an action to en- 
 join the sale and to quiet his title, 
 and filed the bond sued on. On final 
 hearing it was decreed that defend- 
 ant held the lands as trustee for 
 plaintiff; that the injunction be dis- 
 solved; and that defendant convey 
 the land to plaintiff; but no direct 
 attack was made on the injunction. 
 Held, that the only costs incurred 
 were on the trial of the issue of own- 
 ership, to which the injunction was 
 merely auxiliary, and no recovery 
 could be had on the injunction bond. 
 Thomas v. McDaneld, 77 Iowa, 300, 
 42 a. W. 301; Bullard v. Harkness, 
 83 Iowa, 373, 49 N. W. 855. 
 
 1. Newton v. Russell, 87 N. Y. 
 527; Disbrow v. Garcia, 52 N. Y. 
 6o4; Lillie v. Lillie, 55 Vt. 470. 
 
 2. Caillouet & Maginnis v. Coguen- 
 hem, 111 La. CO, 35 So. 385. 
 
 336
 
 Damages. § 208 
 
 action on the bond ; 3 and the counsel fees of the final hearing are 
 not recoverable as damages caused by the injunction, unless the sole 
 or main question to be determined on the final hearing is whether 
 or not the injunction shall be continued. 4 And where an injunction 
 is dissolved because of the insufficiency of the petition, the expense 
 of procuring affidavits in support of a motion to dissolve is not 
 covered by the bond. 5 When the injunction is not dissolved until 
 the final hearing of the case on the merits the counsel fees upon the 
 dissolution should be only for the additional expense in procuring 
 the dissolution over and above those incurred in preparing the 
 case for hearing on the merits. 6 The Ohio doctrine is that where 
 the defendant in resisting the action would have been compelled to 
 make precisely the same expenditure for costs and fees that he has 
 in resisting the action with an injunction, it cannot be said that 
 fuch expenditure was caused by the injunction. 7 
 
 § 208. Counsel fees; where not paid. — Where the condition of 
 an injunction bond is to pay defendant all damages he may sustain 
 by the issuing of the injunction, in case it be dissolved, defendant 
 may recover his reasonable counsel fees, though he may not have 
 actually paid the fees, provided he has become liable for them. 8 
 
 3. Olds v. Cary. 13 Or. 362. 10 Pac. 81. Counsel fees incurred by defend- 
 786; Bustamente v. Stewart, 55 Cal. ant for services in an action other 
 115. The dissolution of an injunc- than those made necessary by a tem- 
 tion. on demurrer to the bill, fur- porary injunction therein, cannot be 
 nishes no ground for assessing dam- assessed as damages upon the under- 
 ages for the services of the attorney, taking given on granting the injunc- 
 as such services have no special refer- tion. Randall v. Carpenter, 88 N. Y. 
 ence to the injunction, but are in 293; Newton v. Russell, 87 N. Y. 527. 
 general defense of the suit. Doyle v. 5. Ellwood M'f'g Co. v. Rankin, 70 
 Brown. 30 111. App. 88. Iowa. 403, 30 N. W. 677. 
 
 4. Disbrow v. Garcia. 52 N. Y. 6. Blair v. Reading, 99 III. 601. 
 654. In Holloway v. Holloway, 103 7. Noble v. Arnold, 23 Ohio St. 
 Mo. 274, a dissolution of the injunc- 264; Riddle v. Cheadle, 25 Ohio St. 
 tion involved a trial of the whole 278. 
 
 case, and therefore the bulk sum of 8. Alabama. — See Garrett v. Lo- 
 
 $350 for counsel fees was recoverable gan, 18 Ala. 344. 
 
 as damages in an action on the bond, Florida. — Wittrich v. O'Neal, 22 
 
 following the ruling in Hammer- Fla. 592. 
 
 elaugh v. Building Assoc'n, 79 Mo. 
 
 337 
 
 22
 
 §208 
 
 Damages. 
 
 But counsel fees cannot be recovered, as damages in an action on 
 an injunction bond, for services which were rendered gratuitously,* 
 or where they have not been paid and no claim therefor had been 
 made when the action on the bond was begun. 10 And where the 
 injunction is one affecting a public corporation there should be no 
 allowance on its dissolution of a fee for the services of an attorney, 
 whose services are rendered ex officio. 11 And where plaintiffs sued 
 on an injunction bond for money paid for counsel fees and ex- 
 penses, and the evidence showed the money had all been paid by 
 one plaintiff, it was held that this individual expenditure was not 
 within the condition of the bond. 12 Again, where several parties 
 were interested in an injunction action, but only one was made a 
 defendant, and he employed an attorney, through whose efforts the 
 
 Illinois.— Reich v. Berdel, 33 111. 
 App. 180. 
 
 Iowa. — Lansley v. Nietert, 78 Iowa, 
 758, 42 N. W. 635. 
 
 Kansas. — Underhill v. Spencer, 25 
 Kan. 71. 
 
 Louisiana. — Meaux v. Pittman. 35 
 La. Ann. 360. See McRae v. Brown, 
 12 La. Ann. 181. 
 
 Missouri.— Holthaus v. Hart, 9 Mo. 
 App. 1. 
 
 ^ew York. — Crounse v. Syracuse, 
 C. & N. Y. R. Co., 32 Hun, 497. 
 
 Texas. — Galveston, H. & S. A. R. 
 Co. v. Ware, 74 Tex. 47, 11 S. W. 
 918. 
 
 But see Wilson v. McEvoy, 25 Cal. 
 169. 
 
 O. Schening v. Cofer, 97 Ala. 726, 
 12 So. 414. 
 
 10. In an action by an adminis- 
 trator on an injunction bond, the 
 amount of attorneys' fees paid by the 
 intestate in procuring a dissolution 
 of the injunction cannot be recovered, 
 when such fees have not been paid, 
 and no claim for them had been filed 
 against the estate, at the time of fil- 
 ing the complaint. Hooper v. Pat- 
 terson (Cal.), 32 Pac. 514. Also, 
 
 I 
 
 Mitchell v. Hawley. 79 Cal. 301, 21 
 Pac. 833; Wilson v. McEvoy. 25 Cal. 
 170; Prader v. Grimm, 28 Cal. 11; 
 Roussin v. Stewart, 33 Cal. 208; 
 Bustamente v. Stewart, 55 Cal. 115. 
 
 11. Uilson v. Weber, 3 111. App. 
 125; Unrig v. St. Louis, 47 Mo. 528. 
 
 12. Hildrup v. Brentano, 16 111. 
 App. 443, per Bailey, J.: "An indi- 
 vidual expenditure, by one of the 
 plaintiffs, is not within the condi- 
 tion of the bond. In Ovington v 
 Smith, 78 111. 250, an injunction 
 bond with precisely the same condi- 
 tion was held not to apply to dam- 
 ages sustained individually by one 
 of the obligees. In Safford v. Miller, 
 59 111. 205. where the bond was con- 
 ditioned for the payment of all such 
 damages as the obligees might sus- 
 tain by reason of the injunction, and 
 also all such costs and damages as 
 might be awarded against the princi- 
 pal obligor, in case the injunction 
 should be dissolved, it was held that 
 damages accruing to one of the ob- 
 ligees individually were not within 
 the condition. See, also, Rees v. Pelt- 
 zer, 1 111. App. 315." 
 
 338
 
 Damages. §§ 209, 210 
 
 injunction was dissolved, in an action on the injunction undertak- 
 ing, the obligors cannot question the authority of the attorney, nor 
 the value of his services, for the reason that he did not represent all 
 the parties who were interested in the result of the injunction 
 action. 13 
 
 §209. Counsel fees; assignment to attorney of claim for. — 
 
 The attorney through whose efforts as such the injunction is dis- 
 solved, may take an assignment of the bond and recover thereon 
 for his services. 14 
 
 § 210. Jurisdictions where counsel fees not recoverable. — 
 
 Counsel fees are not allowed as damages in the Federal courts in 
 actions on injunction bonds, being deemed to be opposed to the 
 analogies of the law and sound public policy. 15 In Pennsylvania, 
 too, counsel fees paid in procuring the dissolution of an injunction 
 are not covered by a bond to indemnify defendant for " all dam- 
 ages that may be sustained by reason of such injunction," on the 
 ground it would seem that the counsel fees paid by the defendant 
 are not deemed the direct consequences of the injunction, but aa 
 
 1,3. Nimoeks v. Welles, 42 Kan. reasons of the rule are thus given: 
 
 39, 21 Pac. 787. " There is no fixed standard by which 
 
 14. N., as county attorney, pros- the honorarium can be measured, 
 ecuted J., who was convicted of forg- Some counsel demand much more 
 ery, and adjudged to pay the costs than others. Some clients are 
 of the action. Afterwards, J.'s prop- willing to pay more than others, 
 erty was levied on by the aheriif, More counsel may be employed 
 when J. obtained an injunction than are necessary. When both 
 against him. The sheriff employed client and cou :s?l know that the 
 N. as his attorney, by whose efforts fees are to be paid by the other party 
 the injunction was dissolved. He as- there is danger of abuse. A refer- 
 signed the injunction undertaking to ence to a master or an issue to a 
 N., as payment for his services. Held, jury might be necessary to ascertain 
 that N. could recover of the obligors the proper amount and this grafted 
 of the bond what his services were litigation might possibly be more ani- 
 reasonably worth, under his employ- mated and protracted than that in 
 ment by the sheriff, it not appearing the original cause." See, also, 
 that he was then county attorney. Arcambel v. Wiseman, 3 Dall. 306, 1 
 Nimoeks v. Welles, 42 Kan. 39, 21 L.Ed. 613; National Society v. Amer- 
 Pac. 787. ican Surety Co., 56 Misc. R. (N. Y.) 
 
 15. Oelrichs v. Spain, 15 Wall. 627, 107 N. Y. Supp. 820. 
 (U. S.) 211, 21 L. Ed. 43, where the 
 
 339
 
 § 210a Damages. 
 
 remote and speculative damages. 16 And a similar rule has been fol- 
 lowed in Maryland. 17 In Arkansas, too, counsel fees are not 
 allowed as damages, and the courts there have adopted the Federal 
 rule. 18 As under the organic law of Arizona territory its courts 
 must follow the decisdons of the Federal Supreme Court, counsel 
 fees are not there recoverable as damages. 19 And in Oklahoma the 
 doctrine of the United States Supreme Court is followed. 20 In 
 Tennessee also it is held that counsel fees are not recoverable. 21 In 
 Texas, expenses of the litigation in procuring the dissolution of an 
 injunction which are not taxable costs in favor of defendant arc not 
 recoverable as damages in an action on the bond, 22 and counsel fees 
 paid for procuring the dissolution of an injunction cannot be re- 
 covered in a suit on the injunction bond. 23 
 
 § 210a. Counsel fees; where Federal bond sued in State court. 
 — The fact that counsel fees are not allowed as damages in the 
 Federal courts, in actions on injunction bonds-, is generally held 
 not to preclude the recovery of such damages in an action in a State 
 court on an injunction bond given in a Federal court; in such a 
 •case the obligors cannot be held to have contracted with the under- 
 
 16. Sensenig v. Perry, 113 Pa. 115, United States Supreme Court, not only 
 5 Atl. 11. in cases involving federal questions, 
 
 17. Wood v. State, 66 Md. 61, 5 but in those involving tlie construc- 
 Atl. 476; Wallia v. Dilley, 7 Md. 237. tion of local statutes, and sucli court 
 
 18. Oliphint v. Mansfield, 36 Ark. has decided that counsel fee9 are not 
 191. See Patton v. Garrett, 37 Ark. recoverable in sucli cases. Oelrichs 
 605. v. Spain, 15 Wall. 211, 21 L. Ed. 43, 
 
 19. Comp. Laws 1877, §§ 2547- followed; Richards v. Green (Ariz.), 
 2555, provide for a bond, when an 32 Pac. 266. 
 
 injunction is applied for, that the 20. Frantz v. Taylor, 12 Okla. 39, 
 
 plaintiff will pay to the party en- 69 Pac. 794. 
 
 joined such damages, not exceeding 21. Stringrfield v. Hirsch, 94 Tenn. 
 
 an amount specified, as such party 425, 29 S. W. 609. 
 
 may sustain by reason of the injunc- 22. Galveston, H. & S. A. Ry. Co. 
 
 tion if the court finally decide that v. Ware, 74 Tex. 47, 11 S. W. 918. 
 
 the plaintiff was not entitled thereto. 23. Jones v. Rosedale St. R. Co., 
 
 Held, that counsel fees are not re- 75 Tex. 382, 12 S. W. 998; Davis v. 
 
 coverable on such bond, since, under Same, 75 Tex. 381, 12 S. W. 999, 
 
 the organic law of Arizona, its courts following Galveston, H. & S. A. R. 
 
 must follow the decisions of the Co. v. Ware, 74 Tex. 47, 11 S. W. 918. 
 
 340
 
 Damages. 
 
 210b 
 
 standing that a suit would be brought on the bond, if at all, in a 
 Federal court, and that their liability would be determined accord- 
 ing to the view which that court might take of the law. 24 But in 
 a case in New York it is decided that in an action brought in a 
 State court upon an injunction bond given in a United States court, 
 the rule of the Federal court prevails and counsel fees are not ad- 
 missible as an clement of damages. 25 
 
 § 210b. When injunction expenses blended with those of suit. 
 
 — When the legal expenses of procuring a dissolution of an injunc- 
 tion are so blended with those of the suit that the court cannot 
 separate them, they will be allowed in some jurisdictions as dam- 
 ages caused by the injunction. 26 But such expenses are not allowed 
 as damages caused by the injunction, where there was an agree- 
 
 24. Mitchell v. Hawley, 79 Cal. 
 301, 21 Pac. 833; Tullock v. Mulvane, 
 61 Kan. 650, 60 Pac. 749; Mulvane v. 
 Tullock, 58 Kan. 622, 50 Pac. 897; 
 Wash v. Lackland, 8 Mo. App. 122. 
 
 In an action in a court of Louisi- 
 ana, on a bonl for an injunction, is- 
 sued by order of a federal court in a 
 chancery suit, condit ontd to secure 
 defendant in such suit against all 
 damages which he may suffer from 
 tne injunction, in case the same may 
 De decided to have been wrongfully 
 issued, counsel fees, incurred in ob- 
 taining the dissolution of such in- 
 junction, may be recovered as an ele- 
 ment of the damages contemplated. 
 Aiken v. Leathers, 40 La. Ann. 23, 
 3 So. 357, 37 La. Ann. 482. 
 
 25. National Society v. American 
 Surety Co., 56 Misc. R. (N. Y.) 027, 
 107 N. Y. Supp. 820, citing Tulluck 
 v. Mulvane. 184 U. S. 497, 22 S. Ct. 
 372, 46 L. Ed. 657; Missouri, K. & 
 T. R. Co. v. Elliott. 184 U. S. 530. 
 22 S. Ct. 446, 46 L. Ed. 673. 
 
 26. Alliance Trust Co. v. Stewart, 
 115 Mo. 236, 21 S. W. 793, per Mac- 
 
 farland, J.: "Objection is made to 
 the expense of attending to taking 
 the deposition of defendant Bogarte 
 in Indiana, on the ground that the 
 deposition was intended to be used as 
 evidence in the principal case, and 
 not in the matter of the injunction. 
 The matters connected with the prin- 
 cipal case and those relating to the 
 injunction are so blended in this de- 
 position that we are unable to sep- 
 arate them. The expense of going to 
 Indiana was the same, regardless of 
 how small a part of the deposition 
 may have had a bearing upon the 
 question of a dissolution of the in- 
 junction, and we think that item of 
 damage properly allowed. Ham- 
 merslough v. Building Ass'n. 79 Mo. 
 81; Holloway v. Holloway, 103 Mo. 
 274, 284, 15 S. VV. 530. 
 
 In Missouri it is held that it is 
 the law of that State that attorney's 
 fees may be recovered in an action 
 on the injunction bond. Shores v. 
 Shores. 34 Mo. App. 208; Hannibal & 
 St. J. R. Co. v. Shepley, 1 Mo. App. 
 254. 
 
 341
 
 §§ 211, 211a Damages. 
 
 ment to pay a gross sum for services in the entire litigation, and 
 there are no distinct charges for services in procuring the dissolu- 
 tion, and no evidence of the value of such services. 27 And where 
 plaintiff obtained an injunction, which was dissolved and he ob- 
 tained leave to discontinue, and an extra allowance was awarded 
 to defendant it was held, that, in computing defendant's damages 
 on the injunction bond, the extra allowance was not to be included. 28 
 
 § 211. Costs of reference as damages. — Upon a reference to 
 ascertain the damages sustained by a party in consequence of an 
 injunction restraining him in the exercise of a legal right, it is 
 proper to allow as part of the damages the expenses reasonably 
 incurred upon the reference. 29 But an allowance for referee's fees 
 and for disbursements in excess of the amount specific d in the 
 injunction bond is error. 30 "Where tie injunction is temporary and 
 there is no prayer for its continuance as part of the final relief 
 sought in the action, and defendant is unsuccessful in resisting the 
 allowance of the injunction, the expenses of the reference ordered 
 on defendant's motion to ascertain the damages by reason of the 
 injunction are not to be allowed as damages. 31 
 
 §211a. Assessment of damages; generally. — In the absence 
 of legislative authority a court of equity will not upon dissolving 
 an injunction, enforce the payment of damages in the original 
 cause, but will remit the parties to their action upon the bond or 
 
 27. Bustamente v. Stewart, 55 Cal. Co., 50 N. Y. 282. And defendant's 
 U5 counsel fees on such a reference may 
 
 28. Howell v. Miller, 12 Daly be allowed as damages. Manufacture 
 (N. Y.). 277. ers '> °t c - Hank v. Folk, 50 N. Y. St. 
 
 29. Holcomb v. Rice. 110 N. Y. Rep. 802, 806. 
 
 598, 23 N. E. 1112, where in pro 30. Lawton v. Green, 64 N. Y. 32(1. 
 
 eeedings to assess defendant's dam- 31. Randall v. Carpenter, 88 N. Y. 
 
 ages the referee's and stenographer's 293; and if the reference is not sua- 
 
 fees, amounting to $381. were held to tained the expenses thereof are not to 
 
 be properly allowed. See. also Aid be allowed as part of defendant's 
 
 rich v. Reynolds, 1 Barb. Ch. (N. Y.) damages. Manufacturers', etc., Bank 
 
 613; Andrews v. Ulenvi'b Woolen v. Folk. 50 N. Y. St. Rep. 802. 
 
 !42
 
 Damages. § 212 
 
 action at common law. 32 In some States a provision is made by 
 statute for the assessment of damages by the court. So by an earlv 
 statute in Texas it was provided that if, upon the dissolution of an 
 injunction, the court was satisfied that it was obtained for the pur- 
 pose of delay the court might, where the collection of money had 
 been enjoined, assess damages at ten per cent, on the amount 
 released by the dissolution of the injunction. 33 Where a statute 
 provides for the assessment of damages at- a certain per cent, on 
 the judgment enjoined the assessment should not be on the amount 
 of the whole judgment where the defendant acknowledges a credit. 34 
 A statutory or Code provision authorizing an award of damages 
 by the court on the dissolution of an injunction does not operate 
 to exclude the right before recognized to sue on the injunction bond 
 and if the damages are not so assessed, an action may be brought 
 on tho bond. 3 * In a proceeding to assess the damages sustained 
 by reason of an injunction the parties are estopped from litigating 
 a question which was determined by the judgment in the action 
 in which the injunction was granted. 36 Again, a court of equity 
 having acquired jurisdiction to reform and correct an injunction 
 bond has also jurisdiction to enforce the bond by assessing the 
 damages occasioned by reason of the injunction. This doctrine 
 is founded upon tho well settled rule that when a court of equity 
 has jurisdiction of a cause for one purpose it will retain such juris- 
 diction for all purposes. 37 
 
 § 212. Assessing damages in Kentucky; Alabama; Iowa; Mis- 
 sissippi; Missouri. — In Kentucky it is decided that it is only 
 
 32. Greer v. Stewart, 48 Ark. 21. bond, or at common law. 
 
 24, 2 S. W. 251. Per Battle, J. In 33. Gault v. Goldthwaite, 34 Tex. 
 
 this case it was held that the dam- 104. 
 
 ages resulting from a temporary in 34. Noland v. Richards, 1 J J. 
 
 junction, restraining a defendant Marsh. (Ky. ) 582. 
 
 from interfering with the possession 35. Barber v. Levy, 73 Miss. 484, 
 
 of a plaintiff, his tenants and labor- 18 So. 797. 
 
 ers in the renting and cultivation of 36. O'Connor v. New York & 
 
 a farm will not be assessed by the Yonkers L. I. Co., 8 Misc. R. (N. 
 
 chancellor on the dissolution of such Y.) 243. 
 
 an injunction; but the court will re- 37. Keith v. Henkleman, 173 III. 
 
 mit the parties to their action on the 137, 50 N. E. 692. 
 
 343
 
 § 212 Damages. 
 
 where proceedings on a judgment have been enjoined, that the 
 court, upon the dissolution of the injunction, has power to assess 
 the damages and render judgment for them; in all other cases the 
 remedy is on the bond." The Civil Code of Kentucky, § 295, 
 provides that on the dissolution of an injunction to stay proceed- 
 ings under a judgment, the damages shall be assessed by the court, 
 and that, if the delivery of property has been delayed by the in- 
 junction, the value of the rent, use, or hire shall be assessed. This 
 remedy by assessment is exclusive of all other remedies. And the 
 above cited section does not apply to splitting of actions, so as to 
 recover one set of damages by assessment by the court, and another 
 by an action on the bond. 39 And under ihe Kentucky Code it has 
 also been decided that where an injunction to restrain the enforce- 
 ment of a judgment pending a motion for a new trial is dissolved 
 the damages to be assessed are within the discretion of the trial 
 court up to the per cent, provided for by law on the amount 
 enjoined. 40 In Alabama, when the chancellor dissolves an inter- 
 locutory injunction by a dismissal of the injunction bill his juris- 
 diction ceases and the measure of defendant's damages caused by 
 the injunction belongs to another forum. 41 In an earlier case in 
 this State it was held that where the answer is a complete denial of 
 a bill upon which an injunction issued, the bill, if wanting in 
 equity, may, not only be dismissed, but the damages prescribed 
 by statute may be imposed, upon the ground " that the injunction 
 
 38. Alexander v. Gish, 88 Ky. 13, Rep. 505, 41 S. W. 8; Ky. Civ. Code, 
 18, 9 S. W. 801; Logsden v. Willis, § 518, subsec. 7. 
 
 14 Bush (Ky.). 183; Rankin v. Estes, 41. Bogacki v. Welch, 94 Ala. 429, 
 
 13 Bush (Ky.), 428. 10 So. 330. In Zeigler v. David. 23 
 
 39. Hayden v. Phillips. 89 Ky. 1, Ala. 127. it was held that a party 
 11 S. W. 951. against whom an injunction or pro- 
 
 Where the conditions of the cess of seizure has been obtained in a | 
 
 injunction bond are sufficient to chancery suit, and who has been in- : 
 
 cover any damages for -waste jured in consequence, may afier the 
 
 committed during the pendency of the dismissal of the bill for want of ! 
 
 injunction, the inquiry of the court prosecution, bring his action at law 
 
 on the assessment of damages should without permission of the chancery 
 
 be extended to any waste or destruc- court to recover on the bond of in- 
 
 tion of the property. Hayden v. Phil- demnity required by the fiat as a 
 
 lips, 89 Ky. 1. 11 S. W. 951. prerequisite to obtaining the process. 
 
 40. Combs v. Bentley, 19 Ky. Law. 
 
 344
 
 Damages. § 213 
 
 was obtained for delay " within the meaning of a statute providing 
 for the assessment of damages in such a case. 42 In a case in Iowa 
 the court declares that damages consequential in their nature which 
 demand for their determination the examination of evidence, ought 
 not to be recovered in any other way than by proceedings wherein 
 process is required, issues are formed and evidence introduced as 
 demanded by the law regulating the action for the recovery of 
 damages in other cases. The court, however, said that it did not 
 decide the question whether those damages which are the imme- 
 diate and necessary result of the allowance of the writ could be 
 recovered by summary proceedings upon motion. 43 In Mississippi 
 on the dissolution of an injunction the damages may be assessed in 
 the injunction suit, or they may be recovered in an action on the 
 injunction bond, if not so assessed. 44 In Missouri upon the dissolu- 
 tion of an injunction damages are to be assessed by the jury or if 
 neither party require a jury by the court. 45 Under such a statute 
 a judge errs in assessing the damages on the dissolution of an in- 
 junction without a jury, where the plaintiffs demand one. 46 And 
 it has been decided that where an appeal has been taken from a 
 final judgment dissolving the injunction and dismissing the bill, 
 and the judgment is affirmed, the defendant, may upon proper 
 notice to the plaintiff and his securities have his damages assessed 
 on the bond by the court. 47 
 
 § 213. In Maine and Minnesota. — In Minnesota it has been 
 decided that after judgment determining that the plaintiff was not 
 entitled to an injunction, the damages thereby caused may either 
 be assessed in a summary manner in the injunction suit as pro- 
 vided by statute, or they may be ascertained in an action therefor 
 on the bond, which mode is preferred; but even though they be 
 assessed in the injunction suit, they can be recovered, if disputed, 
 
 42. Mallory v. Matlock, 10 Ala. 110 Mo. App., Mo. Rev. St. 1899, 
 
 695. § 3C39 - 
 
 4,3. Taylor v. Brownfield, 41 Iowa, 46. Home Mut. Ins. Co. v. Bau- 
 
 264. Per Beck, J. man, 14 Mo. 74. 
 
 44. Davis v. Hart, 66 Miss. 642, 47. Wabash R. R. Co. v. Sweet, 
 6 So. 318; Code, § 1919. 110 Mo. App. 100. 
 
 45. Wabash R. R. Co. v. Sweet, 
 
 345
 
 §214 
 
 Damages. 
 
 only in an action on the bond. 48 In Maine, damages and costs shall 
 be awarded by the court on motion against the complainant, " if 
 he is finally found not entitled to the injunction," but if not so 
 awarded before final decree, they may be determined in a suit on 
 the bond. 49 
 
 § 214. Assessment of damages in Illinois ; suggestion when 
 required. — Under the Illinois statute of 1845, which provides that 
 where an injunction to restrain the collection of a judgment is 
 dissolved in whole or in part, the complainant shall pay, exclusive 
 of legal interest and costs, such damages as the court shall award, 
 not exceeding ten per cent, on such part as may be released from 
 the injunction, damages may be allowed without any suggestion 
 of damages and even without evidence as the amount of the judg- 
 ment enjoined was apparent from the papers, 50 but in such a case 
 it is error to allow damages in excess of ten per cent, on the amount 
 of the judgment. 51 In the class of cases provided for by the act of 
 
 48. Hayden v. Keith, 32 Minn. 
 277, per Vanderburgh, J.: "The 
 statute provides that the damages 
 may be ascertained by reference or 
 otherwise, as the court shall order. 
 After judgment determining that the 
 plaintiff is not entitled to the writ, 
 and not before, the party defendant is 
 entitled to apply for a reference to 
 assess the amount of his damages in 
 a summary way in the same action. 
 The inquiry upon the reference only 
 concerns the amount of the damages, 
 the right to recover them, if disputed, 
 must be determined in an action upon 
 the undertaking. Carpenter v. 
 Wright, 4 Bosw. 655 ; Palmer v Foley, 
 2 Abb. N. C. 191. The parties sign- 
 ing the bond contract with reference 
 to the statute, which provides the 
 manner in which the damages may 
 be ascertained. They are therefore 
 bound by it as a part of the contract. 
 Methodist Churches v. Rarker, 18 N. 
 Y. 463, 466; Wilde v. Joel, 15 How. 
 Pr. 320, 327. But w<* do not think 
 
 this remedy to be held exclusive; and 
 whatever may have been the original 
 practice under the chancery rule, we 
 see no good reason why the parties 
 may not waive this method of as- 
 sessing the damages and have the 
 same ascertained directly in the suit 
 upon the bond. This is the course 
 more commonly pursued in this State, 
 we think, and is convenient in prac- 
 tice and just to all parties. We do 
 not undertake to say, however, that 
 the court might not order the dam- 
 ages to be assessed by a reference 
 also in such suit. But ordinarily 
 there would seem to be no good rea- 
 son why the amount of damages and 
 right of recovery on the bond should 
 not be determined together by a jury, 
 as in other cases." 
 
 49. L. 1881, ch. 68, § 22. 
 
 50. Shaffer v. Sutton, 49 111. 506; 
 Dunn v. Wilkinson, 26 111. App. 26. 
 
 51. Camp v. Bryan, 84 111. 250; 
 111. Rev. St. 1874, p. 579. 
 
 :4fi
 
 Damages. § 214 
 
 1861, suggestions in writing of the nature and amount of damages 
 must be filed by the party claiming damages and assessed by the 
 court, on sufficient evidence. 52 On the dissolution of the injunction, 
 the defendant may file his suggestion of damages and present testi- 
 mony in proof thereof, and the court may retain the case for the 
 assessment of damages, though the complainant dismiss his bill by 
 leave of court without prejudice and at his costs. 53 This proceed- 
 ing, for the assessment of damages on suggestion, follows as a part 
 of the original proceeding, upon the dismissal of the bill and the 
 dissolution of the injunction. 54 A suggestion of damages in such 
 a case is held to take the place of a declaration and it should be 
 so framed as to give the opposite party information with reasonable 
 certainty of the nature and amount of the damages claimed. 55 And 
 it is decided that the court may grant leave to the defendant to file 
 suggestion of damages, and for any reason satisfactory to the court 
 may extend the time in which to file the same, which may be done 
 by entry of the order and continuing the case. After having 
 granted such leave the court does not lose jurisdiction by subse- 
 quent continuances. 56 Where damages are assessed under an act 
 requiring suggestions in writing to be filed, the court is required to 
 hear evidence in respect thereof, and such evidence must be pre- 
 served in the record to support the decree awarding damages. And 
 in such a case there is held to be no presumption to aid the omission 
 of the evidence from the record. 57 Under the Illinois act of 1801 
 there could not be a recovery of damages in an action on the bond, 
 unless the damages had been assessed by the court at the time ihe 
 injunction was dissolved. 58 Prior to that enactment it was not 
 
 52. Forth v. Town of Xenia, 54 111. Howard v. Austin 12 Til. Ann. 055; 
 210. See Kohlsaat v. Crate, 144 111. Winkler v. Winkler, 40 111. 170; Stin- 
 14 32 N. E. 481. nett v. Wilson, 19 111. App. 38. 
 
 53. Cummings v. Mugge, 94 111. 56. Poyer v. Village of Des 
 180. Plaines, 123 111. Ill, 13 N. E. 819, 5 
 
 54. Holmes v. Stateler. 57 111. 209, Am. St. Rep. 494. 
 
 hold'rg that if either party desires a 57. Forth v. Town of Xenia. 54 
 
 continuance, he should show grounds 111. 210. 
 
 for it in the ustnl mo^e hv affidavit. 58. Brownfield v. Brownfield, 58 
 
 55. Independent Medical College 111. 152. 
 v. Ziegler, 86 111. App. 360; citing 
 
 347
 
 §215 
 
 Damages. 
 
 necessary that the damages should have been first assessed at the 
 time the injunction was dissolved, but might be awarded in an 
 action for damages on the bond; 59 and it would seem that the 
 statute of 1874, providing that " a failure so to assess damages 
 shall not operate as a bar to an action upon the injunction bond," 
 restored the old rule. 60 And in a more recent case it is decided 
 that failure to assess damages on dissolution of an injunction in 
 the manner provided by statute in Illinois 61 does not bar recovery 
 on the bond. 62 
 
 § 215. Continued in Illinois — The statute now in force in 
 Illinois in reference to the assessment of damages caused by the 
 wrongful suing out of an injunction, 63 is construed to give the 
 party enjoined the right to have his damages assessed and to a 
 decree awarding the same to him, wholly irrespective of whether 
 an injunction bond has been given or not, and of the amount of 
 the penalty of the bond if a bond has been given. It is held that 
 the liability of a party wrongfully suing out an injunction is not 
 created by the bond nor measured by it, but that the office of the 
 bond is only to secure the payment of damages up to the amount 
 
 59. Hibbard v. McKindley, 28 111. 
 240. 
 
 60. Mix v. Vail. 86 111. 40. 44. 
 The Act of 1874 providing that 
 
 a failure to assess damages en the 
 dismissal of a suit where an injunc- 
 tion is granted shall not operate as 
 a bar to an action on the injunction 
 bond, only applied to bonds entered 
 into after it took effect and had no 
 operation as to bonds entered into be- 
 fore that time, although the dis- 
 missal of the suit might be subse- 
 quent thereto. Alwood v. Mansfield. 
 81 111. 314. See Mix v. Vail, 86 111. 
 40. 
 
 61. 111. Rev. Stat. 1874, p. 580; 
 Injunction Act § 12. 
 
 62. Keith v. Henkleman, 173 111. 
 
 137, 50 N. E. 692. 
 
 63. 111. R. S. 1891, ch. 69. § 12: 
 " In all cases where an injunction is 
 dissolved by any court of chancery in 
 this State, the court, after dissolving 
 such injunction, and before finally 
 disposing of the suit upon the party 
 claiming damages by reason of such 
 injunction suggesting in writing the 
 nature and amount thereof, shall 
 hear evidence, and assess such dam- 
 ages as the nature of the case may re- 
 quire and to equity may appertain 
 to the party damnified by such in- 
 junction, and may award execution to 
 collect the same, provided a failure 
 so to assess damages shall not oper- 
 ate as a bar to an action on the in- 
 junction bond." 
 
 348
 
 Damages. 
 
 §216 
 
 of the bond. 64 But on the dissolution of a temporary injunction, 
 an assessment of damages in defendant's favor is premature if 
 complainant's right to a permanent injunction remains undisposed 
 of. 65 The dissolution of an existing injunction for want of a 
 proper bond followed by an immediate order for a new injunction 
 upon the filing of a new bond, which bond is filed, is not such a 
 dissolution as is contemplated by a statute in regard to the assess- 
 ment of damages upon the dissolution of an injunction. 66 
 
 § 216. In New York and New Hampshire. — In New York the 
 damages caused by an injunction may be ascertained and deter- 
 mined by the court or by a referee appointed by the court, or by 
 a writ of inquiry or otherwise as the court shall direct; and the 
 decision of the court as to such damages or its order confirming 
 
 64. Kohlsaat v. Crate, 144 111. 14, 
 32 N. E. 481. In this case on the 
 dissolution of the injunction the de- 
 fendant nled a suggestion of damages, 
 and the court found for him to the 
 amount of $2,227, but by its decree 
 awarded him only $500, the amount 
 of the bond. On appeal this decree 
 was reversed and he was awarded 
 the full amount of $2 227. On ap- 
 peal to the Supreme Court the Ap- 
 pellate Court was sustained and 
 Bailey, C. J., referring to the terms of 
 the statute, said: "This clearly im- 
 plies the assessment of such damages 
 as will compensate the injured party 
 for such losses and expenses as are 
 directly occasioned by the injunction. 
 The statute does not require that in- 
 junction bonds shall be required in 
 all cases, as section 9 authorizes the 
 judge or master granting an injunc- 
 tion to order its issue without bond 
 in cases when, for good cause shown, 
 he is of opinion it ought to be granted 
 without bond. In only one class of 
 cases, viz., where an injunction is 
 issued to enjoin a judgment is the 
 
 amount of the penalty of the bond 
 fixed by the statute. In all other 
 cases if a bond is required the 
 amount of the penalty is discretion- 
 ary with the judge or master award- 
 ing the injunction. The absence of a 
 bond would certainly be no obstacle 
 to the assessment of damages under 
 the provisions of section 12 nor are 
 we able to see how a bond with an in- 
 adequate penalty can constitute such 
 obstacle. The office of the bond is 
 not to create or measure the liability 
 of the complainant for damages, but 
 to secure the payment of such dam- 
 ages up to the amount of the penalty 
 of the bond. The decisions of the 
 courts of other States to which we 
 are referred, seem to have been based 
 upon rules of law essentially different 
 from those prescribed by our stat- 
 ute, and therefore cannot control 
 here." See also, Walker v. Pritch- 
 ard. 135 111. 103. 25 M. E. 573. 
 
 65. Woerishoffer v. Lake Erie & 
 W. R. Co., 25 111. App. 84. 
 
 66. Beauchamp v. Board of Super- 
 visors, 45 111. 254. 
 
 349
 
 §217 Damages. 
 
 the referee's report is conclusive as to the amount of the damages 
 upon all, including the sureties, who have executed the injunction 
 bond, unless it is reversed on appeal. 67 Counsel fees for services 
 in procuring a dissolution of an injunction and in attending a 
 reference to assess damages consequent thereon, are within the 
 language of an undertaking that plaintiff will pay to defendant 
 any damages, not exceeding a sum named, " that he may sustain 
 by reason of such injunction, if the court shall finally decide the 
 plaintiff not entitled thereto;" 68 but counsel fees incurred on the 
 trial of the issue in the action are not allowable as damages upon 
 such assessment, unless they were incurred solely or principally 
 in consequence of the injunction. 69 In New Hampshire it is 
 decided that in an action on an injunction bond conditioned " to 
 pay all such damages as may be occasioned to the adverse party 
 by reason of the injunction," the question as to what damages 
 were caused by the injunction is a question of fact to be determined 
 at the trial term upon which the court cannot pass as matter of 
 law. 70 
 
 § 217. In Louisiana. — In Louisiana it has been determined that 
 damages are not allowed to the defendant on the dissolution of the 
 injunction against him, except in cases where executions upon 
 money judgments are enjoined; the defendant must bring his 
 action for such damages on the injunction bond, 71 it being con- 
 sidered an abuse of the writ of injunction for a party to restrain, 
 merely for delay, the execution of a money judgment against him, 
 for which he should be mulcted in damages. 72 Thus damages can- 
 not be awarded in the same judgment as dissolves an injunction 
 to restrain the collection of a license tax. 73 When a writ of seizure 
 
 67. Code Civ. Pro., § 623 ; Lawton 70. Jackman v. Eastman, 62 N. H. 
 v. Gre?n, 64 N. Y. 326; Methodist 273. 
 
 Churches v. Barker. 18 N. Y. 463. 71. Green v. Reagan, 32 La. Ann. 
 
 68. Newton v. Russell, 87 N. Y. 974; Morris v. Bienvenue 30 La. 
 527. 531; Rose v. Post, 56 N. Y. 603. Ann. 878; Verges v. Gonzales, 33 La. 
 
 69. Hovey v. Rubber Tip Co.. 57 Ann. 410. 
 
 N. Y. 119; Disbrow v. uarcia, 52 N. 72. Lambeth v. Sentell, 38 La. 
 
 Y. 654; Andrews v. Glenville Woolen Ann. 691. 
 
 Co., 50 N. Y. 282. 73. King v. Labranche, 35 La. 
 
 Ann. 305. 
 
 350
 
 Damages. § 213 
 
 and sale is enjoined and the injunction afterwards dissolved, the 
 seizing creditor cannot obtain his damages by the judgment dis- 
 solving the injunction, but must bring his action on the bond. 7 * 
 And in a late case in this State it is decided that the plaintiffs 
 having acted in good faith in taking out the injunction the defend- 
 ants are not entitled to damages upon the dissolution of the in- 
 junction. 75 And in another case it is also decided that statutory 
 damages on the dissolution of an injunction will not be allowed, 
 where, the merits not having been gone into, the court can not say 
 that the equitable remedy of injunction has been abused. 76 
 
 § 218. Motion to assess damages; joinder of movants; appor- 
 tionment. — Under the Missouri rule that where an obligation has 
 been made to several persons jointly all the obligees must join in 
 an action to enforce it, 77 it. has been held that a motion to assess 
 damages on an injunction bond must be joined in by all the 
 obligees, or good cause must be shown for the non-jojnder of such 
 as are omitted; and particularly where some of the defendants in 
 the injunction suit come back into court with such a motion after 
 the term has expired at which the final decree was rendered. 78 
 But where sufficient reason exists for the making of more than one 
 motion by different defendants such motions should, though made 
 at different times, be treated as one motion and be heard at the 
 same time as there can be only one final judgment. 79 A motion 
 to assess damages on an injunction bond may be made after the 
 injunction has been dissolved and the bill dismissed, if made 
 before the term has lapsed. 80 The court on dissolving the tem- 
 
 74. Burgess v. Gordy, 32 La. Ann. 78. Ohnsorg v. Turner, 33 Mo. 
 1296; Dejean v. Hebert, 31 La. Ann. App. 486. 
 
 729; Cane v. Cawthon, 32 La. Ann. 79. August Gast Bank-Note & L. 
 
 953. Co. v. Fennimore Ass'n, 79 Mo. App. 
 
 75. Caillouet & Maginnis v. 612. 
 
 Coguenhem, 111 La. 60, 35 So. 385. 80. Loehner v. Hill, 19 Mo. App. 
 
 76. Speyrer v. Miller, 108 La. 204, 141, per Rombauer, J.: "The mean- 
 32 So. 524. ing of the statute is not that dam- 
 
 77. Ryan v. Riddle, 78 Mo. 521; ages must be assessed instanter when 
 Henry v. Mt. Pleasant, 70 Mo. 500; the injunction is dissolved, but 
 Rainey v. Smizer, 28 Mo. 310; Clark simply that the motion to assess 
 v. Cable, 21 Mo. 223. damages shall be made, before the 
 
 351
 
 § 219 Damages. 
 
 porary injunction and assessing the damages on the injunction 
 bond may apportion the same to the several parties enjoined. 81 
 But a dismissal of a suit in vacation, by order of plaintiff to the 
 clerk, has no effect as a judgment until entered of record by the 
 court at a succeeding term ; and such a dismissal of a suit in which 
 an injunction has been granted does not prevent the assessment of 
 damages on the injunction bond on motion. 82 In North Carolina 
 after a voluntary non-suit has been taken by the plaintiff a motion 
 may be made for an assessment of the damages resulting from the 
 granting of the injunction. 83 
 
 § 219. Federal practice as to determining damages. — A Fed- 
 eral court, which, on granting a temporary injunction, requires 
 the giving of a bond for possible damages, may, on dissolving the 
 injunction, itself decide what damages, if any, should be paid; 
 and it will never send the bond to another jurisdiction to be 
 sued upon, and only in very excEptional cases will it send the 
 matter before a jury. The court will if necessary appoint, a special 
 master to take evidence of the defendant's damage and report to 
 the court. 84 Where an order of the Federal District Court requires, 
 
 court by lapse of the term, has lost given under its order, or it can de- 
 
 the power to entertain a motion for liver the bond to the defendants for 
 
 that purpose." the purpose of suit thereon in a 
 
 81. Holloway v. Holloway, 103 court of law. This court would never 
 Mo. 274, 2S4, 15 S. W. 536. send the bond for suit in another jur- 
 
 82. Campbell v. Carroll, 35 Mo. isdiction, and in very rare cases 
 App. 640. would it send the bond before a jury. 
 
 83. Nansemond Timber Co. v. The suit, from its inception is in 
 Rountree, 122 N. C. 45, 29 S. E. 61. this court. The conduct of the 
 
 84. Coosaw Mining Co. v. Farm- partes is always under its super- 
 ers Min. Co., 51 Fed. 107, per Simon- vision. Tne character of the ques- 
 ton, J.: "A motion is now made tions involved, and the ease or diffi- 
 • that the bond g ven under the order culty in reaching a conclusion upon 
 cf 6th March, 1891. be delivered to them, can nowhere be as well known 
 defendants to bring such actions un- as in the court which heard, consiu- 
 uer the conditions thereof as they ered, and decided them. The court 
 may be advised.' There can be no also can determine whe her any fur- 
 question that the court can either de- ther proceedings are necessary; and 
 cide for itfelf what damages, if any, may content itself, after fixing costs 
 snould be g ven upon the dissolution on the complainant with an order 
 of an injunction, secured by a bond that no further damages can be re- 
 
 352
 
 Damages. § 220 
 
 as a condition of maintaining an injunction, that plaintiffs give 
 bond to save the parties harmless from the effects of the injunc- 
 tion and the bond is conditioned that the obligors shall pay all such 
 damages as defendant may recover against them in case it shall be 
 decided that the injunction was wrongfully issued, it is held 
 that the bond follows the order, and that, construed under the 
 rule of the Federal courts, it binds the obligors for damages in- 
 curred before as well as after it was given. 85 Under the Federal 
 practice obligors may be bound for damages incurred before as 
 well as after the bond was given ; 86 but this is not the rule in Cali- 
 fornia. 87 
 
 § 220. English inquiry as to damages. — In England it is dis- 
 cretionary with the court of original jurisdiction whether an in- 
 quiry as to damages be granted, and an inquiry will not be granted 
 in every case in which the defendant may have sustained some 
 small or remote damage from the injunction. 88 Thus, where the 
 only damage alleged was that the defendant had agreed to let part 
 of his property with a projected new building to a tenant, and 
 was prevented doing so by the injunction, but it did not appear 
 that the interference by the injunction was so great as to have 
 entitled the intended tenant to throw up the agreement, it was 
 held that an inquiry as to damages ought not to be granted. 89 So, 
 
 covered against it. Russell v. Far- damage as they may claim, with 
 
 ley, 105 U. S. 446 ; 26 L. Ed. 1065. leave to complainant to reply thereto, 
 
 In the present case I think it best if it be so advised, and that the testi- 
 
 to follow the course finally decided mony so taken be reported to the 
 
 upon in iSovello v. James, 5 DeG., court. Let J. E. Hagood be the spec- 
 
 M. & G. 876, quoted and criticised in ial master in this behalf." See, also, 
 
 Russell v. Farley. I do not wish, Lehman v. McQuown, 31 Fed. 138. 
 however, to decide in advance, or to 85. Meyers v. Block, 120 U. S- 
 
 I intimate an opinion on the question 206, 7 Sup. Ct. 525, 30 L. Ed. 642. 
 whether further damages should be 86. Meyers v. Block, 120 U. S 
 
 allowed. I think it the better prac- 206, 7 Sup. Ct. 525, 30 L. Ed. 642. 
 tice, because it is seldom that a 87. Lambert v. Haskell, 80 Cal. 
 
 chancellor without evidence can say 611, 22 Pac. 327. 
 whether or not a party has been 88. Kerr, Injunctions, 638, 639. 
 
 or to what extent. It is 89. Smith v. Day, L. R. 21 Ch. 
 
 ordered that the defendants produce D. 421. 
 before the master such evidence of 
 
 353 
 23
 
 §220 
 
 Damages. 
 
 too, while there are no definite limitations of the time within which 
 the inquiry should be applied for, yet, ordinarily, it should be 
 made either when the injunction is dissolved or at the triai. 90 
 Master of the Rolls Jessel was inclined to the opinion that an 
 inquiry to ascertain damages should not be granted where there 
 has been no misrepresentation or fault on the part of plaintiff in 
 procuring the injunction, but it had issued through a mistake of 
 the court; Lord Justice Cotton dissented from this opinion, 91 and 
 preferred to hold with Lord Justices Bruce and Turner, that an 
 inquiry as to damages might be directed where the injunction had 
 been improperly issued, from the court having taken a wrong view 
 of the law, 92 and this is now the accepted doctrine. 93 The court 
 will not grant an inquiry as to damages where it can satisfy itself 
 without an inquiry, as, for instance, where the damage consists of 
 a loss of interest which may readily be computed by the 
 court. 94 
 
 90. Smith v. Day, L. R. 21 Ch. 
 D. 421, per Jessel, M. R.: "Having 
 regard to the decisions we are not 
 entitled to say that the application 
 for an inquiry must be made either 
 when the injunction is dissolved or 
 at the trial. One of these must be 
 the most proper time. The applica- 
 tion may be made when the injunc- 
 tion is dissolved, but if made then 
 it will probably be ordered to stand 
 over till the trial. If made by mo- 
 tion subsequently to the trial, the 
 party moving is subject to some dis- 
 advantage, for thi application is one 
 which should be made speedily and 
 not after tue court has forgotten the 
 circumstances. After a lapse of time 
 the statement of counsel is not 
 enough; there must be evidence that 
 damages have accrued. In Newby v. 
 Harrison, 3 DeG., F. & J. 287, an 
 inquiry was directed after four 
 months, and I do not say that special 
 circumstances might not induce the 
 court to allow more, but had it not 
 
 been for that case I should have 
 thought four months too long. In 
 the present case the injunction was 
 dissolved by the Court of Appeal in 
 February, 1880, and the action dis- 
 missed in June, 1881, and the present 
 application (for an inquiry) was not 
 made till February, 1882. I am of 
 opinion that the time is too long." 
 In Ex parte Hall, L. R. 23 Ch. D. 
 644, 652, a delay of four years was 
 held to be fatal to an application for 
 an inquiry to ascertain damages, and 
 Bowen, L. J., thought it " marvelous 
 that the appellant if he had any real 
 claim to damages, should not have 
 brought it forward before." 
 
 91. Smith v. Day, L. R. 21 Ch. 
 D. 424, 429. 
 
 92. Novello v. James, 5 DeG., M. 
 & G. 876. 
 
 93. Griffith v. Blake, L. R. 27 Ch. 
 D. 475; Hunt v. Hunt, 54 L. J. Ch. 
 289. 
 
 94. Graham v. Campbell, L. R. 7 
 Ch. D. 490. 
 
 354
 
 Damages. 
 
 § 221 
 
 § 221. Assessing damages on partial dissolution of injunction. 
 — Under the Illinois statute referred to in a preceding section the 
 court of chancery may assess damages upon a suggestion thereof 
 by the defendant in the injunction action, though the injunction 
 be only partially dissolved; for if a person is wrongfully enjoined 
 from doing one thing which he has a right to do, he is none the less 
 injured because he is at the same time rightfully enjoined from 
 doing another thing which he has no right to do. 95 But upon dis- 
 
 95. Walker v. Pritchard, 135 111. 
 103. 25 N. E. 573, per Magmder, J.: 
 " Section 8 of the present Injunction 
 Act, which went into force July 1, 
 1874. provides in the same language 
 which was used in section 11 of the 
 Act of 1845, that the court may 
 award damages ' if the injunction be 
 dissolved in the whole or in part.' 
 Section 8 of the present Act, as was 
 true of section 11 of the Act of 1845, 
 applies only to injunctions against 
 judgments. Section 12, which was 
 lirst enacted in 1861, was designed to 
 extend the power of the court to 
 award damages to other cases than 
 judgments. Forth v. Town of Xenia, 
 54 111. 210. Said section 12 author- 
 izes the court, upon the suggestion of 
 damages in writing, to assess the 
 same ' in all cases where an injunc- 
 tion is dissolved.' But we do not 
 think that this language was in- 
 tended to limit the action of the court 
 to cases where the injunction was 
 wholly dissolved. As, before 1861, 
 damages could be assessed where in- 
 junctions, granted in other cases than 
 judgments, should be dissolved either 
 altogether, or only partially. It was 
 left to the chancellor to award such 
 damages as the case might require 
 and to equity might appertain, 
 whether the dissolution was in whole 
 or in part. We think the view here 
 taken is sustained by authority. The 
 
 question has never been directly de- 
 cided in this State, but the right to 
 assess damages for the partial disso- 
 lution of an injunction has been inci- 
 dentally recognized. In Roberts v. 
 Fahs, 36 111. 268, the injunction was 
 against tne sheriff from selling, under 
 an execution which he had levied, a 
 quantity of cord wood and other 
 property; upon fina hearing the in- 
 junction was dissolved as to the sale 
 of cord-wood, but made perpetual as 
 to the other property levied upon; 
 written suggestions of damages were 
 filed; it was there held that it was 
 proper to allow ten per cent, on the 
 judgment enjoined as the proper 
 measure of damages, but improper to 
 include the principal, interest and 
 costs of the judgment in the amount 
 of the damages assessed. In Willits 
 v. Slocumb, 24 111. App. 484, a 
 collector of taxes was enjoined from 
 collecting State, road, bridge and 
 school taxes and also the city and 
 bond taxes due a certain municipal- 
 ity. The injunction was dissolved as 
 to all the taxes except the city and 
 bond taxes, and sustained as to the 
 latter; it was held that damages 
 were recoverable on the ground that 
 the matters enjoined were separate 
 and distinct claims. So. in the case 
 at bar the notes as to which the in- 
 junction has been dissolved are sep- 
 arate and distinct claims from those 
 
 355
 
 § 222 Damages. 
 
 solution of an injunction restraining the prosecution of an action 
 at law, the amount sued for in such action cannot be assessed as 
 damages, though the defendant in that action has become insolvent 
 pending the injunction, since the rights of the parties should be 
 determined in the law court. 96 Where an injunction to stay the 
 sale of any particular property by virtue of certain levies has been 
 dissolved as to a part only, and continued as to the balance, and 
 the property released, not diminished in value in consequence of 
 the injunction, has been sold, and the proceeds of sale applied on 
 the judgments under which the levies were made it is decided that 
 no decree against the complainant should be rendered, on account 
 of the dissolution of the injunction, for the amount of the judg- 
 ment.* 7 
 
 § 222. Reference to ascertain damages. — A reference to deter- 
 mine the amount of damages sustained by an injunction which has 
 been dissolved will not be granted after judgment dismissing the 
 action without providing therefor; nor will the case be reopened 
 for the purpose of ordering a reference to ascertain the damages. 98 
 Where an undertaking was to pay defendant's damages " by reason 
 of the injunction if the court should finally decide that plaintiff 
 was not entitled thereto," it was held that the dissolution of the 
 
 as to which the injunction has been court damages could have been as- 
 made perpetual. In Pierson v. Ellis, sessed under the Minnesota statute 
 46 Hun (N. Y.), 336, the defendant on the partial dissolution. And in 
 was enjoined from carrying on the Rice v. Cook, 92 Cal. 144 28 Pac. 
 livery business on certain premises. 219, though title to a por'ion of the 
 and from doing a number of other land was decreed in plaintiff, the 
 acts; the injunction was sustained as condition of the bond was broken, 
 to carrying on the livery business, since, if the injunction was wrong- 
 but dissolved as to the other acts; fully issued as to any part of the 
 damages were assessed by a referee land and was dissolved to that ex- 
 as to the acts as to which the injunc- tent, defendant would be entitled to 
 tion was dissolved, and the same such damages as he sustained by rea- 
 were allowed." See, also, White v. son thereof. 
 
 Clay, 7 Leigh (Va.), 68, so in Rus- 96. Walker v. Pntchard, 135 111. 
 
 sell v. Farley, 105 U. S. 433, 26 L. 103; 25 IS. E. 573. 
 
 Ed. 1060, it was conceded by the 97. Teaff v. Hewitt, 1 Ohio St. 511. 
 
 United States Supreme Court that if 98. Delafield v. Commercial Tel. 
 
 the case had continued in the State Co., 22 Abb. N. C. (N. Y.) 450. 
 
 356
 
 Damages. § 223 
 
 injunction on the defendant's motion, and the subsequent dismissal 
 of the action for want of prosecution, was a breach of the under- 
 taking which entitled defendant to a reference to assess his dam- 
 ages." An order of reference to compute damages cannot be made 
 where the injunction action has abated by reason of the death of 
 defendant; 1 or where the preliminary injunction has been dis- 
 solved for a cause not relating to the merits and which has arisen 
 since the granting; 2 or where an order of discontinuance has been 
 entered upon the defendant's consent, for such a discontinuance 
 or dissolution is not a decision of the court that the plaintiff was 
 not entitled to the injunction. 3 "Where a reference is made for 
 this purpose it is only proper to take into consideration in estimat- 
 ing the damages the period between the date of the issuance of the 
 injunction and that of its dissolution. 33. 
 
 § 223. Same subject. — An irregularity in prematurely obtain- 
 ing the order of reference as to damages may be waived by the 
 consent of parties ; 4 or by permitting the referee to proceed without 
 objection, or though the objection has been taken, if -the party 
 objecting does not withdraw from the reference. 5 The proceed- 
 ings under the order of reference are not necessarily governed by 
 the strict rules which govern the trial of issues; the court may 
 direct the evidence taken at a former reference, or upon the trial 
 even, to be submitted to the referee, and may authorize ex -parte 
 affidavits to be read before him. 6 The referee need not find dam- 
 ages for defendant in the absence of proof thereof, and is not 
 
 99. Kane v. Casgrain, 69 Wis. 430, 1. Johnson v. Elwood. 82 N. Y. 
 
 34 N. W. 241. See, also, Dowling v. 362. 
 
 Polaek, 18 Cal. 625. 2. Appollinaris Co. v. Venable, 
 
 The volnntary dismissal after 136 N. Y. 46, 32 N. E. 555. 
 
 answer, of an injunction bill, shows 3. Palmer v. Foley, 71 N. Y. 106. 
 
 presumptively that the complainant 3a. Collins v. Crownover (Tenn. 
 
 was not equitably entitled to the in- Ch. App. 1900.), 57 S. W. 357. 
 
 junction, and entitles the defendant 4. Lawton v. Green, 64 N. Y. 326. 
 
 to a reference to ascertain his dam- 5. Roberts v. White, 73 N. Y. 375. 
 
 ages where the usual bond has been 6. Roberts v. White, 73 N. Y. 375, 
 
 given. Mutual Safety Ins. Co. v. 379. 
 Roberts, 4 Sandf. Ch. (N. Y.) 592. 
 
 357
 
 §§ 224, 225 Damages. 
 
 bound to allow him counsel fees where there is no proof that de- 
 fendant has either paid or became liable for such fees. 7 So, too, 
 the referee is not required to report findings of fact and conclu- 
 sions of law separately ; 8 but his report will not be confirmed unless 
 he reports the damages and not merely the facts from which the 
 damages can be ascertained. 9 
 
 § 224. Reference in Wisconsin. — In Wisconsin, under a statute 
 and practice similar to that in New York, if the court decides that 
 the party obtaining a preliminary injunction was not entitled to 
 it, the other party may have a reference to assess damages sus- 
 tained by reason of the injunction, 10 and an order vacating a pre- 
 liminary injunction, after a hearing on the pleadings and affidavits, 
 followed by a dismissal of the action, for want of prosecution, is 
 such a final determination as warrants an order to assess defend- 
 ant's damages. 11 An order of reference to assess the damages 
 caused by the injunction is premature if made before the court 
 finally decides that the plaintiff was not entitled to an injunction ; 
 but if it is finally so decided, the order will not afterward be 
 reversed on appeal. 12 
 
 § 225. Review and correction of referee's report. — On a refer- 
 ence to ascertain the damages caused by an injunction suspending 
 
 7. Packer v. Nevin, 67 N. Y. 550. Y. ) 325. We can see no objection to 
 
 8. Matthews v. Murchison, 14 Abb. the practice, and such is the obvious 
 N. C. (N. Y.) 512, note. intention of the statute. The court, 
 
 9. Taaks v. Schmidt, 19 How. Pr. on the report of the referee, fixes the 
 (N. Y.). 413. amount of the damages. Here there 
 
 10. Parish v. Reeve, 63 Wis. 315, is no question of the effect of the 
 23 N. W. 568, per Cole, C. J. : " It order on the sureties in the under- 
 appears that in New York, under a taking who have no notice of the pro- 
 similar statute, the practice has ob- ceeding." 
 
 tained, after a hearing and rendition 11. Avery v. Ryan, 74 Wis. 591, 
 
 of judgment on the merits in favor 43 N. W. 317. See State v. Hoef- 
 
 of the party enjoined, that he may linger, 31 Wis. 257. 
 
 have a reference to assess his dam- 12. Kane v. Casgrain, 69 Wis. 430, 
 
 pges sustained by the injunction. See 34 N. W. 241. See, also, Supreme 
 
 Methodist Churches v. Barker, 18 N. Court, I. 0. of F.. v. Supreme Court 
 
 Y. 463; Jordan v. Volkenning 72 N. of U. O. of F., 94 Wis. 234, 68 N. W. 
 
 Y. 300; Musgrave v. Sherwood, 76 N. 1011. 
 Y. 194; Loomis v. Brown, 16 Barb. (N. 
 
 358
 
 Damages. 
 
 §225 
 
 defendant's business of manufacturing toys, the referee allowed 
 damages sustained by loss of profits based on testimony that the 
 profits of the business, over and above it3 expenses, were 25 per 
 cent., and that during the life of the injunction, defendant was 
 prevented from doing a certain amount of work in gross, on orders 
 received, but made no allowance for contingencies of business, 
 uncertainty of sales, and bad and uncollectible debts. It appeared 
 that the company which had theretofore run the business had not 
 paid any dividends for years, and had become insolvent. The 
 court held that the assessment of damages should be set aside. 13 
 In proceeding to recover damages caused by the injunction just 
 referred to, it. appeared that the factory had capacity to make a 
 certain amount of goods. It was held by the court, on appeal. 
 that it could not be inferred from such evidence that the owner, 
 during the operation of the injunction, would have received orders 
 of that amount, and, therefore, that a loss of profits thereon could 
 not be allowed as damages caused by the injunction. 14 
 
 13. Manufacturers' and Traders' 
 Bank v. Dare Co., 16 N. Y. Supp. 67. 
 
 14. Manufacturers', etc., Bank v. 
 Folk, 50 N. Y. St. Rep. 802, 806. 
 The court: "The referee reported 
 that Abram Folk sustained damages 
 by reason of the injunction, to the 
 amount of $3,740.66. The items 
 found by him seem to overrun this 
 sum, and it is not exactly apparent 
 how his conclusion was reached. The 
 following are the items reported. 
 Rent paid for factory while 
 
 use was enjoined $ 416.60 
 
 Watchman for 7 weeks, at 
 
 $12 per week 84.00 
 
 Keeping horse, use re- 
 strained 20.00 
 
 Salary of manager, 7 weeks, 
 
 at $25 a week 175.00 
 
 Loss of wages paid 25.00 
 
 Defendant's counsel fees on 
 
 the reference 250.00 
 
 Orders on hand when in- 
 
 junction was served and 
 received during its contin- 
 uance, $4,826.77. 
 Ten per cent, profit thereon 
 
 lost 482.67 
 
 $1,453.33 
 
 The factory had capacity 
 to produce toys during the 7 
 weeks the injunction was in 
 operation of the value of 
 $17,500. 
 Loss of profit thereon, 10 
 
 per cent $1,750.00 
 
 Injury to good will 500.00 
 
 Referee's fees on first refer- 
 ence 120.00 
 
 Counsel fees on first refer- 
 ence 150.00 
 
 $3,973.33 
 
 " Upon an examination of the rec- 
 
 359
 
 §§ 226, 226a 
 
 Damages. 
 
 § 226. Reference in case of appeal. — When an appeal from a 
 judgment for the defendant has been taken, an order of reference 
 to ascertain the damages should not be granted until the final 
 determination of the appeal. 15 In such a case, the defendant, being 
 secured by the injunction bond, can usually suffer no loss by await- 
 ing until the decision of the appeal, before proceeding to assess his 
 damages. 16 
 
 § 226a. Pleadings. — In an action on a bond in which the sure- 
 ties have bound themselves to pay the damages which may be 
 sustained by reason of the injunction it is only necessary to allege 
 that damages have been sustained as the proximate result of the 
 injunction. 17 And where plaintiff was enjoined from moving a 
 
 ord we think the evidence was suffi- 
 cient to sustain the first seven items, 
 aggregating $1,453.33, but that it 
 was insufficient to sustain the last 
 four items. It cannot be fairly in- 
 ferred from the evidence that the de- 
 fendant, during the seven weeks he 
 was under restraint, would have re- 
 ceived orders for, and been able to 
 manufacture toys to the value of 
 $17,500. Nor is there any evidence 
 that he lost $500 by the injury to 
 good will. The defendant is no more 
 entitled to recover the $270 paid in 
 the first reference, which was not sus- 
 tained, than he would have been to 
 recover counsel fees paid in an un- 
 successful attempt to have procured 
 the injunction to be vacated. We 
 think, under the evidence, that the 
 defendant's damages recoverable on 
 the bond are $1,453.33." 
 
 15. Musgrave v. Sherwood, 76 N. 
 Y. 194, per Curiam: "The plaintiff 
 having appealed, and executed the 
 proper undertaking, it cannot be 
 claimed that there has been a final 
 determination of the cause. Palmer 
 v. Foley, 71 N. Y. 106. None of the 
 authorities cited by the appellant's 
 
 counsel held that when an appeal has 
 been taken, an order of reference may 
 be entered to assess damages arising 
 from an injunction. Methodist 
 Churches v. Barker. 18 N. Y. 463; 
 Lawton v. Green, 64 N. Y. 326; Dis- 
 brow v. Garcia, 52 N. Y. 654; Parke 
 v. Musgrove, 6 Hun (N. Y.), 223. 
 Cases may arise where it would be 
 the duty of the court to order a 
 reference. But any general rule dif- 
 ferent from that stated would lead 
 to great inconvenience. A reference 
 ordered to ascertain the amount of 
 damages would create great expense, 
 and be of no avail, if the judgment 
 was finally reversed. It would, in- 
 deed, be somewhat unusual, under or- 
 dinary circumstances, that the exe- 
 cution of the judgment should be 
 stayed, and at the same time a pro- 
 ceeding going on for the assessment 
 of damages, which perhaps might be 
 collected pending the appeal, or if 
 not collected and the judgment was 
 reversed, the proceeding would be of 
 no avail.'' 
 
 16. Musgrave v. Sherwood, 76 N. 
 Y. 194 196. 
 
 17. Jones v. Allen, 85 Fed. 523, 
 29 C. C. A. 318. 
 
 360
 
 Damages. § 226b 
 
 building he may in an action on the bond recover his damage under 
 an allegation that he had that right, and was enjoined from so doing, 
 without alleging ownership or right therein. 18 And though there 
 is no direct allegation that costs, charges and expenses were neces 
 sary or worth the amount claimed, yet if from the allegations of 
 the petition such facts may reasonably be inferred it will be suffi- 
 cient in the absence of direct attack by motion or otherwise. 19 It 
 has also been decided that the expense incurred in procuring a 
 dissolution of an injunction is not recoverable by the defendant in 
 an injunction suit who moved to dissolve the injunction upon- the 
 filing of his answer which alleged that he did not desire and was 
 not intending to do the act enjoined, this being a concession that 
 he was not damaged by the writ and that he would not have been 
 damaged by a continuance of it to the final hearing. 20 Again, an 
 injunction against a partner of a commercial firm has the effect 
 of enjoining the partnership and such partnership though not 
 made a party defendant, save to the extent that the partner en- 
 joined may have represented the firm, has a right of action to 
 recover damages occasioned by the injunction. 21 But although 
 several parties whose individual lands have been injured by a 
 nuisance may unite as plaintiffs in an action to abate it, they can- 
 not recover in that action the damage caused to each, the relief 
 being confined to the abatement of the nuisances in which they 
 have a common interest. 22 
 
 § 226b. Evidence and burden of proof. — Before a judgment 
 can be given upon an injunction bond, the party who alleges that 
 he has sustained damage by reason of the issuance of the injunc- 
 tion, must establish the quantum of damages he has sustained. 23 
 So upon a reference to ascertain what, if any, damages defendants 
 
 18. Williams v. Ballinger, 125 21. Dreus v. Williams, 50 La. 
 Iowa, 410, 101 N. W. 139. Ann. 579, 23 So. 897. 
 
 19. Williams v. Ballinger, 125 22. Burghen v. Erie Railroad Co., 
 Iowa, 410, 101 N. W. 139. 123 App. Div. (N. Y.) 204, 108 N. Y. 
 
 20. Bank of Monroe v. Gifford, 70 Supp. 311. 
 
 Iowa, 580, 31 N. W. 881. 23. Hyman v. Devereux, 65 N. C. 
 
 588. 
 
 361
 
 § 226c Damages. 
 
 have sustained in consequence of an injunction, it is the duty of the 
 party claiming to have sustained damages to establish such fact, 
 and the amount thereof, by satisfactory proof. 24 And where the 
 court has power to assess damages upon the dissolution of an in- 
 junction it is essential that there should be evidence preserved in 
 the record to support the decree awarding damages. 25 
 
 § 226c. When prescription begins to run. — The date the in- 
 junction was sued out is held not to be the date from which pre- 
 scription of claims for damages caused by continuing acts begins 
 to run. The prescription begins to run from the time the damage 
 was committed by the continuing acts, and not from the date of 
 the injunction. 26 
 
 24. Dwight v. Northern Indiana citing Forth v. Town of Xenia, 54 111. 
 R. R. Co., 54 Barb. (N. Y.) 271. 210. 
 
 25. Wilson v. Haecker, 85 111. 349; 26. Dreus v. Williams, 50 La. Ann. 
 
 579, 23 So. 897. 
 
 362
 
 Liability of Sureties. § 227 
 
 CHAPTER VII. 
 
 Liability of Sureties. 
 
 SECTION 227. Sureties' liability is stricti juris. 
 227a. Same subject — Application of rule. 
 
 228. Same subject continued. 
 
 229. Same subject — Bond conditioned to pay damages sustained. 
 
 230. Enlarging sureties' liability by the partien. 
 
 231. Extent of sureties' liability. 
 
 232. Sureties' liability for defendant's loss of profits, etc. 
 
 233. Sureties' liability on joint bonds. 
 
 234. Bonds as joint or several. 
 
 235. Sureties when bound by decree though not parties. 
 
 236. Suing principal before surety. 
 
 237. Release of surety — Defenses. 
 
 238. Sureties' obligations construed. 
 
 239. Same subject. 
 
 240. Awarding damages against sureties in original action. 
 
 241. Same subject — In Arkansas. 
 
 242. Same subject — In Louisiana. 
 
 243. Mme subject — In Louisiana continued. 
 
 244. Same subject — In New York. 
 
 245. Same subject — In South Carolina, Missouri, Texas. 
 
 Section 227. Sureties' liability is stricti juris. — The liability of 
 a surety on an injunction bond must be strictly construed, and he 
 cannot be held liable beyond the precise terms of his undertaking. 1 
 His liability is a matter of strict law and cannot be extended by 
 implication or intendment, 3 but is limited by the condition of the 
 bond. 4 Therefore, where the court on a subsequent hearing modi- 
 
 1. It is thoroughly well settled 3. Wood v. Hollender, 84 Tex. 
 
 that sureties are entitled to stand 394, 19 S. W. 551. See, also, Fer- 
 
 upon the strict letter of their con- guson v. Tipton, 1 B. Mon. (Ky. ) 28; 
 
 tract, and that their obligation can Ashby v. Tureman, 3 Litt. (Ky. ) 6. 
 not be added to, nor indeed changed 4. Groye v. Bush, 86 Iowa. 94, 53 
 
 by either party to the suit nor by N. W. 88. See Columbus, Hocking 
 
 the court itself. Tyler Min. Co. v. Valley & T. R. Co. v. Burke, 54 Ohio 
 
 Last Chance Min. Co., 90 Fed. 15, 32 St. 98, 43 N. E. 282, 32 L. R. A. 329. 
 C. C. A. 498. 
 
 363
 
 § 227a Liability of Sureties. 
 
 fies a restraining order by permitting the doing of certain acte 
 prohibited in the original order without requiring any other or 
 further bond, it does not impose any obligation upon the sureties 
 in respect thereto, as the court cannot by such an act impose an 
 obligation upon the sureties beyond the terms of their contract. 6 
 And in order that a surety should be liable under an injunction 
 bond it must conform in terms or in substance to the statutory 
 requirements. 6 And the terms of an undertaking for an injunc- 
 tion are to be construed with reference to the statutes in force at 
 the time it was given, in determining the liability of the sureties. 7 
 It is not, however, meant by the rule that the liability of a surety 
 is to be strictly construed and not extended by implication that 
 the courts in endeavoring to ascertain the precise terms of the 
 contract actually made by a surety, may not resort to the same 
 aids and invoke the same canons of interpretation which apply in 
 case of other contracts. 8 In construing an injunction bond with 
 reference to the question of the discharge of the obligation of the 
 surety, the court will be guided by the intention of the parties at 
 the time the bond was executed, taking into consideration the cir- 
 cumstances under which the bill was filed and that it was given in 
 a judicial proceeding, as a necessary step to obtain the injunction, 
 and to indemnify the adverse party against its effects and opera- 
 tion. 9 And it has been decided that an intention on the part of 
 sureties to become bound without the signature of their principal 
 may be proven by evidence dehors the bond. 10 
 
 § 227a. Same subject; application of rule. — Where the under- 
 taking was that the sureties would pay defendants such damages 
 " as they may sustain by reason of the injunction if the court 
 finally decides that the plaintiff was not entitled thereto," it was 
 held that a dismissal of the action and dissolution of the injunc- 
 
 5. Tyler Min. Co. v. Last Chance 8. Shreffler v. Nadehoffer, 133 111. 
 Min. Co., 90 Fed. 15, 32 C. C. A. 498. 536, 552, 25 N. E. 630. Per Bailey, J. 
 
 6. Palmer v. Foley, 71 N. Y. 106, See §§ 238, 239, herein. 
 
 110; Bein v. Heath, 12 How. (U. S.) 9. Levy v. Taylor, 24 Md. 282. 
 
 168 - 10. Safranski v. St. Paul, Min- 
 
 7. Krug v. Bishop, 44 Ohio St. 221, neapolis & M. R. Co., 72 Minn. 185, 
 6 N. E. 252. 75 N. W. 17. 
 
 364
 
 Liability 01 Sureties. § 228 
 
 tion for a cause arising subsequent to the commencement of the 
 action and not related to the merits, was not a determination by 
 the court that plaintiff at the time the temporary injunction was 
 granted, " was not entitled thereto," so as to render the sureties 
 liable. 11 And, so, where the undertaking was to pay two parties 
 damages upon the dissolution of the injunction as to both of them, 
 it was held that the surety was not liable to one of them upon the 
 dissolution of the injunction as to him alone. 12 And where the 
 complaint described the bond as obliging the sureties to pay dam- 
 ages to one and the bond offered in evidence showed damages pay- 
 able to two, the variance was held to require, under the Alabama 
 Code, the exclusion of the bond as evidence. 18 
 
 § 228. Same subject continued. — Where in an action to restrain 
 the collection of a judgment in Iowa the injunction bond was not 
 conditioned according to the provisions of the Iowa Code, which 
 required the bond to be conditioned " to pay such judgment or 
 comply with such final order, if the injunction is not made per- 
 petual, or to pay any judgment that may be ultimately recovered 
 against the party obtaining the injunction on the cause of action 
 enjoined," but was conditioned merely " to pay all damages which 
 may be adjudged against petitioner," it was decided on appeal to 
 the Supreme Court and reversing the District Court, that it was 
 
 11. Apollinaris Co. v. Venable, Miller v. Stewart, 9 Wheat. (U. S.) 
 136 N. Y. 46, 32 N. E. 555. See, also, 680. And the rule laid down by 
 Johnson v. Ehvood, 82 N. Y. 363; Story, J., in the case last cited, has 
 Palmer v. Foley, 71 N. Y. 106. been often adopted and repeated by 
 
 Where an order is made that the Supreme Court of Illinois. Shref- 
 an injunction issue on the fil- fler v. Nadelhoffer, 133 111. 536. 25 N. 
 ing of a bond, and the bond E. 630; Vinyard v. Barnes. 124 111. 
 recites that it is given in con- 346. 16 N. E. 254; Burlington Ins. 
 sideration that the said writ of in- Co. v. Johnson, 120 111. 622, 12 N. 
 junction may issue, but the injunc- E. 2"05 ; Trustees of Schools v. Sheik, 
 tion is issued and served before bond 119 111. 579, 8 N. E. 189; Dodson v. 
 is given, the sureties on the bond are Henderson, 113 HI. 360; Mix v. Sin- 
 not liable. Carter v. Mulrein, 82 Cal. gleton. 86 111. 194; Cooper v. Peo- 
 167, 22 Pac. 1086. pie, 85 111. 417; People v. Tompkins, 
 
 12. Ovington v. Smith, 78 111. 250. 74 111. 482; Stull v. Hance, 62 111.52 
 See, also, Waters v. Simpson. 7 111. 13. Washington v. Timberlake, 74 
 570; Sharp v. Bedell, 10 111. 88; Ala, 259. 
 
 365
 
 §229 
 
 Liability of Sureties. 
 
 error to hold the sureties liable for the amount of the enjoined 
 judgment, for that would be to extend their liability by intend- 
 ment to matters not expressly within the terms of their under- 
 taking. 14 So the omission of the court clerk, whose duty it is to 
 draw up the bond, to include the payment of an enjoined judgment 
 in the condition, does not alter the legal effect of the surety's obli- 
 gation resulting from the actual condition of the bond as signed 
 by him. 15 And in a suit against a surety to an injunction bond 
 conditioned to pay all moneys due or to become due upon a judg- 
 ment, " for the sum of $2,300 and costs," in case the injunction 
 should be dissolved, it was held incompetent for the plaintiff to 
 give in evidence an exemplification of a record showing a judg- 
 ment for $2,340.06 and costs, though in other respects answering 
 to the judgment mentioned in the condition of the bond. 16 
 
 §229. Same subject; bond conditioned to pay damages sus- 
 tained. — Where, on the granting of an injunction to restrain the 
 
 14. Spencer v. Sherwin, 86 Iowa, 
 117, 53 N. W. 86, citing 10 Amer. 
 & Eng. Enc. Law, p. 991 ; Ovington 
 v. Smith, 78 111. 250; United States 
 v. Boyd, 15 Pet. 208; Anderson v. 
 Falconer, 34 Miss. 257; Miller v. 
 Stewart, 9 Wheat. 681, 702; Dobbin 
 v. Bradley, 17 Wend. 422; Hunt v 
 Smith, 17 Wend. 180; Tarpey v. Shil 
 lenberger, 10 Cal. 390; Hall v. Will 
 iamson, 9 Ohio St. 17; Webber v 
 Wilcox, 45 Cal. 301 ; Ferguson v 
 Tipton, 1 B. Mon. (Ky.) 28; Ashby 
 v. Tureman, 3 Littell (Ky.), 6. In 
 Ferguson v. Tipton, just cited, the 
 condition of the bond being " to pay 
 all costs and damages that might be 
 awarded," it was held that the sur- 
 eties were not bound for any part of 
 the judgment enjoined but only for 
 the costs and damages in the injunc- 
 tion suit. See, also, the similar de- 
 cision in Grove v. Bush, 86 Iowa, 94, 
 
 53 N. W. 88; Corder v. Martin, 17 
 Mo. 41. 
 
 15. Ferguson v. Tipton, 1 B. Mon. 
 (Ky.) 28; Ashby v. Tureman, 3 Litt. 
 (Ky.) 6. 
 
 16. Hall v. Williamson, 9 Ohio St. 
 17. The difficulty in this case would 
 have been avoided if the amount of 
 the judgment had not been specified 
 in the bond, but the judgment had 
 been referred to there as described in 
 the injunction bill, and had been cor- 
 rectly described in the bill; but in 
 fact there was no reference in the 
 condition of the bond to the bill for 
 either the amount or description of 
 the judgment, and the bill instead of 
 correctly describing the judgment, so 
 as to correct the description in the 
 bond did not describe it at all. See 
 United States v. Maurice. 2 Brock. 
 96, for an illustration of the rule, in 
 certum est quod certum potest, which 
 is sometimes applicable to such cases. 
 
 366
 
 Liability of Sureties. § 229 
 
 collection of a judgment, the obligors on the injunction bond do 
 not undertake to pay the amount of the judgment, but to pay the 
 party enjoined the damages he may sustain should the injunction 
 prove to be wrongful, to hold the surety liable for the amount of 
 the judgment would be to make his obligation broader than the 
 terms of his bond. Thus, where a bond, given by a person to 
 obtain an injunction releasing property taken under an execution, 
 issued on a personal judgment against him, and restraining the 
 collection of such judgment on the ground that it is void, is for 
 all damages sustained by the judgment creditor by reason of such 
 injunction, and where, on the hearing of such injunction, the bill 
 in the original action is dismissed and the injunction dissolved, 
 the measure of damages, in an action on the bond by the judgment 
 creditor, is the interest on the judgment for the time the injunction 
 was in force, and not the amount of the judgment, interest, and 
 costs. Though of course the liability of a surety would be quite 
 different under a bond conditioned that he would abide the decision 
 of the injunction suit and pay all sums of money adjudged against 
 his principal therein. 17 The bond must substantially conform to 
 
 17. Neal v. Taylor, 56 Ark. 521, volved in that consideration against 
 
 20 S. W. 352, per Cockrill, C. J.: the appellant, and with that fact 
 
 " The only liability assumed by the against him the condition of the bond 
 
 obligors in the injunction bond sued does not warrant a recovery of the 
 
 on, was that they would pay to the amount of the judgment. Ferguson 
 
 party enjoined the damages which he v. Tipton, 1 B. Mon. 28; Ashby v. 
 
 might sustain by a wrongful injunc- Tureman, 3 Litt. (Ky.) 6. We have 
 
 tion. There is no stipulation to pay nothing before us except the court's 
 
 the amount of the judgment enjoined special finding ot facts set out in the 
 
 in case the injunction should be dis- judgment. Inere is no bill of excep- 
 
 solved. The only way in which the tions. In the case of Hunt v. Burton, 
 
 obligee in the bond could bring the 18 Ark. 188, a recovery of the full 
 
 payment of his judgment within the amount of two judgments enjoined 
 
 terms of the bond, would be to prove was sustained in a suit at law 
 
 that he had lost the opportunity to against the surety in the injunction 
 
 collect it by reason of the injunction. bond without a showing that the 
 
 It may be that in that event the full fruits of the judgments were lost by 
 
 amount of the judgment could be as- reason of the injunction. But there 
 
 sessed as damages sustained by rea- is a wide difference between the facts 
 
 son of the injunction. See Crawford of that case and this. The bond in 
 
 v. Woodworth, 9 Bush, 745. But the that case contained the condition, 
 
 court resolved the question of fact in- then, but not now, required by stat- 
 
 367
 
 §230 
 
 Liability of Sureties. 
 
 the injunction order or it will not bind the sureties. Thus, where 
 a temporary restraining order is made upon an application for a 
 temporary injunction, upon condition that a bond be filed to pay 
 all damages resulting from such order, and is limited to the pend- 
 ency of the motion for the temporary injunction, a bond given in 
 consideration of a writ of injunction and pending the action im- 
 poses no liability where the temporary injunction was not granted. 18 
 
 § 230. Enlarging sureties' liability by the parties — A surety's 
 liability cannot be extended by the stipulation of the parties to 
 the injunction suit, nor be changed by a statute which goes into 
 effect subsequent to the execution of the bond by the surety. 19 The 
 
 ute, that the sureties would abide the 
 decision of the suit for injunction, 
 and pay all sums of money adjudged 
 against their principal therein. See 
 Blakeney v. Ferguson. 18 Ark. 347. 
 In the decree dissolving the injunc- 
 tion the court adjudged against the 
 principal the amount of the judg- 
 ment which had been enjoined, to- 
 gether with damages, and it was 
 ruled that the sureties were liable for 
 the amounts so adjudged. In the 
 text of High on Injunctions it is 
 stated upon authority of the Supreme 
 Court of Missouri, that a surety who 
 is bound only by a condition such as 
 that construed in Hunt v. Burton 
 would not be liable for the amount 
 of the judgment enjoined, unless the 
 amount was adjudged against the 
 principal on the dissolution of the in- 
 junction; and that comports with 
 the reasoning of this court in the 
 case of Blakeney v. Ferguson, supra, 
 where the court seemed to hold that 
 the statute and the form of the bond 
 itself contemplated that the court 
 dissolving the injunction should in 
 every case ascertain what damages 
 the obligee had sustained, and that 
 he could recover none at law that had 
 
 not been awarded against the prin- 
 cipal in the cause wherein the in- 
 junction was dissolved, though a dif- 
 ferent view was taken of the same 
 rtatute in Marshall v. Green, 24 Ark. 
 410. The judge granting the in- 
 junction in this case could have re- 
 quired a bona to secure the payment 
 of the judgment in case the injunc- 
 tion should be dissolved as a condi- 
 tion to the issue of the restraining 
 order, if it appeared to him that the 
 rights of parties demanded such pro- 
 tection. The power to impose equit- 
 able conditions in such cases is recog- 
 nized by the general equity practice 
 (Russell v. Farley, 105 U. S. 433, 26 
 L. Ed. 10G0), and is authorized by 
 statute (Mansi. Dig. §§ 3741, 3745). 
 But no such condition was imposed, 
 no damages were assessed, on tiie dis- 
 solution of the injunction, and none 
 were proved on the trial. To hold the 
 surety liable for the amount of the 
 judgment would be to make his obli- 
 gation broader than the terms of his 
 bond. That, of course, cannot be 
 done." 
 
 18. Byam v. Cashman, 78 Cal. 525, 
 21 Pac. 113. 
 
 19. Mix v. Vail, 86 111. 40. 
 
 368
 
 Liability of Sweeties. 
 
 §230 
 
 dismissal of the bill by agreement of parties or their counsel, after 
 a preliminary injunction has issued, is not such a final determina- 
 tion that, the injunction was wrongfully issued as fixes the liability 
 of the sureties on the injunction; for otherwise their liability could 
 be fixed by the agreement of the parties without their assent or even 
 their knowledge instead of by the decree of the court, as con- 
 templated and tacitly understood when they signed the bond. 20 
 
 20. Large v Steer, 121 Pa. St. 
 30, 15 Atl. 490, per Paxson, J.: 
 " Was this agreement of counsel dis- 
 missing the bill such a final deter- 
 mination of the same as fixed the lia- 
 bility of the sureties on the injunc- 
 tion bond? The question is a novel 
 one. We have not been referred to 
 any Pennsylvania case having any 
 bearing on it. I see no difficulty, 
 however, in disposing of it upon prin- 
 ciple. The sureties in an injunction 
 bond assume certain obligations. At 
 the same time they have rights which 
 must be respected, and of which they 
 cannot be deprived without their con- 
 sent. They are entitled to have the 
 case against their principal tried ac- 
 cording to the forms of law, and a 
 final decree or judgment entered 
 against him in court. Their liabil- 
 ity consists in satisfying any judg- 
 ment their principal may be con- 
 demned to pay. Until there is such 
 a final determination of the equity 
 suit, as shows that the injunction 
 was wrongfully issued, I do not see 
 how an action would lie against the 
 principal in the bond, much less 
 against his sureties. This view is 
 sustained by Hilliard on Injunctions, 
 84; Bank of Monroe v. Gifford, 65 
 Iowa, 648, 22 N. W. 913; Penny v. 
 Holberg, 53 Miss. 567; Gray v. Veirs, 
 33 Md. 159; Bemis v. Gannett, 8 
 Neb. 236. The reason for this is, 
 that it may appear upon final hear- 
 ing that the plaintiff was entitled to 
 
 his injunction, although it may have 
 been dissolved pending the bill. The 
 sureties on an injunction bond, as 
 before observed, have a right to have 
 the equity suit disposed of by the 
 court in the usual way. There must 
 be a decision upon the merits or 
 what is equivalent thereto. Hence it 
 was held by the Supreme Court of 
 Louisiana in Baker v. Frellson, 32 
 La. Ann. 822, that the surety on the 
 injunction bond was discharged by 
 an agreement entered into without 
 his consent, by plaintiff and defend- 
 ant, to have the equity suit tried and 
 determined in an irregular way at 
 chambers and after the terms of the 
 court had ended. It was said by 
 Bermudez, C. J., at p. 831 : ' The con- 
 sent of the parties to the trial of the 
 matter in which Ludeling, the surety, 
 was sought to be made liable in the 
 manner in which it was tried, with- 
 out his assent, and the appellant hav- 
 ing selected and adopted such course, 
 we think operates as a discharge of 
 the surety's liability on the injunc- 
 tion bond.' As a general rule the 
 dismissal of a bill by the agreement 
 of the parties is not the equivalent of 
 a decision upon the merits. To this 
 effect are N. Y., West Shore, etc., R. 
 Co. v. Omerod, 29 Hun, 274; Palmer 
 v. Foley, 71 N. Y. 106; Towle v. Lea. 
 cox, 59 Iowa, 42, 12 N. W. 764; 
 Young v. Campbell, 75 N. Y. 525. 
 That this must be the rule as re- 
 gards the sureties in an injunction 
 
 369 
 
 24
 
 § 230 Liability of Sdketies. 
 
 And in a case in Illinois where there was a contract between com- 
 plainant and defendant for the dissolution of an injunction by 
 which the latter agreed to pay a certain sura of money to the former 
 it was decided that a dissolution in pursuance thereof was not 
 such a dissolution as was contemplated by the terms of a bond 
 by which the surety was " to pay the damages resulting to the 
 obligee by reason of the issuing of the injunction in case the same 
 shall be dissolved," it being declared that this clause in the bond 
 meant a dissolution by order of court either in a final decree or 
 upon a motion to dissolve or upon complainant's failure to prose- 
 cute the suit and not a dissolution by agreement of complainant 
 and defendant upon a settlement of all or a part of their contro- 
 versies involved in the suit. 21 So in a case in Ohio it is said: 
 " There must be a showing that it has been determined by the 
 court that the injunction should not have been granted; . . . 
 any agreement between the parties, subsequent to the allowance 
 of the injunction, by which the action is dismissed and the injunc- 
 tion dissolved, is not sufficient in an action on the bond, where there 
 has been no judicial determination that the injunction should not 
 have been allowed; and, consequently, an award made by arbi- 
 trators selected by the parties, and in no way subject to the control 
 of the court, cannot have that effect, for it only binds the parties 
 as an agreement, not as a judgment rendered by the court, in the 
 exercise of its jurisdiction, upon the case made by the parties and 
 submitted to it. The bond contemplated such a judgment and 
 none other." 22 In this connection it has been decided that where 
 a stipulation does not change the contract evidenced by the bond 
 or in any respect vary the liability of the principal obligor on the 
 bond the surety is not thereby released. In this case it was held 
 that the sureties in an injunction bond given upon the issuance 
 
 bond can hardly be doubted. Were 21. Cassem v. Ernst, 84 I'll. App. 
 
 it otherwise their liability could bo 70. Examine Thomas v. Wason, S 
 
 fixed by the agreement of the parties, Colo. App. 452, 46 Pac. 1079. 
 
 •without their assent or even their 22. Columbus, Hocking Valley & 
 
 knowledge, instead of by the judg- T. R. Co. v. Burke, 54 Ohio St. 98, 
 
 tnent or decree of the court, as con- 129, 43 N. E. 282, 32 L. R. A. 329« 
 
 templated and tacitly understood Per Minshall, J. 
 -when they signed the bond." 
 
 370
 
 Liability of Sureties. § 231 
 
 of an injunction in a bill filed to restrain the sheriff from paying 
 over the proceeds of the sale of certain property on execution are 
 not released by a stipulation entered into between the principal 
 obligor and the execution creditors by the terms of which the 
 sheriff was to keep all money due on the executions until the 
 motion for a receiver was determined. 23 In New York it has been 
 decided that a stipulation entered into between the parties to the 
 action that a preliminary injunction shall be vacated upon certain 
 conditions does not affect the rights of the sureties or operate as a 
 release of the obligation entered into by them. 24 
 
 § 231. Extent of sureties' liability. — The sureties in an injunc- 
 tion bond do not make themselves liable for damages for injuries 
 suffered by the defendant, while the injunction was in force, as a 
 result of unlawful acts of the complainant other than those dam- 
 ages which naturally result from the suing out of the writ of 
 injunction. 23 So sureties are not liable for the tortious and unlaw- 
 ful acts of plaintiff in taking and converting the property in 
 dispute during the pendency of the injunction. 26 A surety 
 on an undertaking given on obtaining an injunction against several 
 acts, as to some of which it is afterwards determined that an 
 injunction was improper, is liable for loss sustained in respect 
 of that part of the injunction which was dissolved, although, as 
 to the remaining acts, the injunction was perpetuated. 27 The 
 undertaking of the surety in an injunction bond where there are 
 several complainants, is in law, for the principals, severally as 
 
 23. Keith v. Henkleman, 173 111. 25. Curamings v. Mugge, 94 III. 
 137, 50 N. E. 692. The court said: 186. 
 
 "The Stipulation referred to did not 26. Cummings v. Mugge, 94 HI 
 
 change the contract evidenced by the 186. 
 
 bond, nor was the liability of the 27. Pierson v. Ells, 46 Hun (N 
 
 principal obligor in the bond for the Y.), 336. In this case Hardin, J.. 
 
 damages, occasioned by the injunction advanced the view that " when the 
 
 varied in any respect. His liability plaintiff seeks to restrain more than 
 
 remained exactly as it was before the one act he in effect unites two or 
 
 stipulation was made." Per Ma- more acts or causes for an injunc- 
 
 gruder, J. tion, and should be held to have 
 
 24. Dickerson v. Herman, 9 Daly given an undertaking with like force 
 (N. Y.), 299. and effect as several undertakings for 
 
 371
 
 § 232 Liability of Sureties. 
 
 well as jointly. He in effect is bound that each and all of the 
 principals shall perforin and fulfill whatever decree may be ren- 
 dered in the cause against all or either of them. 28 And the sureties 
 may, by force of the terms of the bond they execute, be liable to 
 others than the defendants in the injunction suit, and where such 
 others have a common interest one of them may sue upon the 
 injunction bond for the benefit of all. 29 When the sureties on an 
 injunction bond to stay execution engage to pay the debt to the 
 extent to which the injunction should be dissolved, regardless of 
 condition of the execution debtor, it is immaterial to their liability, 
 when the injunction is dissolved, whether the property was or was 
 not subject to the execution, or that the plaintiff had lost his debt 
 by reason of the injunction. 30 The securities in an injunction 
 bond are also held to be liable for costs accruing in the injunction 
 suit after the death of their principal the complainant as well as 
 before. 31 Again, the condition of the bond being co-extensive with 
 the objects and purposes of the bill it has been decided that the 
 admission of new parties does not enlarge the responsibility of the 
 obligors, the risk incurred by the surety, when there was but one 
 party complainant, being as great as when the number was in- 
 creased. 32 
 
 § 232. Sureties' liability for defendants' loss of profits, etc. — 
 In California it has been decided that the sureties are not liable 
 for loss of profits or counsel fees incurred or expended before the 
 giving of the undertaking, nor for counsel fees expended in defense 
 of the suit, nor for losses or counsel fees accruing after the final 
 decree making the injunction perpetual, as a preliminary injunc- 
 tion is merged and ceases to have effect when a decree for perpetual 
 
 different acts or causes." Seacord v. court which dissolved it was a fed- 
 Morgan, 3 Keyes (N. Y.), 643. cral court, to which the case had 
 
 28 Kelly v. Gordon, 3 Head been removed, since they cannot col- 
 
 (Tenn.), 683. laterally attack the legality of the 
 
 29. Alexander v. Gish, 88 Ky. 13, removal. 
 9 S. W. 801. In the same case it i» 30. Riggan v. Crain, 86 Ky. 249, 5 
 
 held that an injunction having been S. W. 561. 
 
 dissolved, the sureties on the injunc- 31. Fowler v. Scott. 11 Ark. 675. 
 
 tion bond are liable, though the 32. Levy v. TV.ylor. 24 Md. 282. 
 
 372
 
 Liability of Sureties. 
 
 §2sa 
 
 injunction is rendered. 33 They are, however, liable for loss of 
 profits of an established business which the party enjoined is pre- 
 vented by the injunction from carrying on, 34 but not for loss of 
 speculative profits, as, for instance, profits which the party 
 enjoined claims he would have made from a contemplated exten- 
 sion of his business. 35 
 
 § 233. Sureties' liability on joint bonds. — The general rule is 
 that if a surety on a joint obligation dies before his principal, his 
 representatives cannot be sued at law, nor will they be charged in 
 equity. 36 And an injunction bond which is joint in form, that is, 
 which is without words of severalty, will not be construed as joint 
 and several so as to bind the estate of the surety in case he dies 
 before his principal, unless the surety had a personal interest in 
 the injunction. 37 But it is decided that the securities in an injunc- 
 tion bond, in the usual form, are not only bound' for the perf orm- 
 
 33. Lambert v. Haskel, 80 Cal. 
 611, 22 Pac. 327. See Curtiss v. 
 Bachman, 110 Cal. 433, 42 Pac. 910. 
 
 34. Lambert v. Haskell, 80 Cal. 
 611, 018, 22 Pac. 327. See following 
 cases: 
 
 Illinois. — Cbapman v. Kirby, 49 111. 
 219. 
 
 Iowa. — Gibson v. Fischer, 68 Iowa, 
 30, 25 N. W. 914. 
 
 Maryland. — Sbafer v. Wilson, 44 
 Md. 268. 
 
 Michigan. — Allison v. Chandler, 11 
 Mich. 558. 
 
 Minnesota. — Goebel v. Hough, 20 
 Minn. 256. 
 
 Rhode Island. — Simmons v. Brown, 
 5 R. I. 299, 73 Am. Dec. 66. 
 
 35. Chicago City R. Co. v. Howl- 
 eon, 86 111. 215. 
 
 36. United States. — United States 
 v. Price, 9 How. 83, 90, 13 L. Ed. 56. 
 Hunt v. Rousmanier, 8 Wheat. 174, 
 212, 213, 5 L. Ed. 589, 599. 
 
 Maryland. — Waters v. Riley, 2 
 Harr. & G. 311. 
 
 "Kexo York. — Bradley v. Burwell, 3 
 Den. 61, 65. 
 
 Pennsylvania. — Weaver v. Shryock, 
 6 S. & R. 262 ; Kennedy v. Carpenter, 
 2 Whart. 361. 
 
 Virginia. — Harrison v. Minge, 2 
 Wash. 136. 
 
 England. — Sumner v. Powell, 2 
 Meriv. 30; Wilmer v. Currey, 2 De- 
 Gex & S. 347 ; Jones v. Beach, 2 DeG. 
 6 Beav. 185. 
 
 37. Pickersgill v. Lahens, 15 Wall. 
 (U. S.) 140, 21 L. Ed. 119, per 
 Davis, J. : " It is very clear that 
 Lafarge estate is discharged at law 
 from the payment of the obligation 
 in controversy, on the familiar prin- 
 ciple that if one of two joint obligors 
 die the debt is extinguished against 
 his representative and the surviving 
 obligor is alone chargeable. It is 
 equally clear that in this clas3 of 
 cases where the remedy at law is 
 gone as a general rule a court of 
 equity will not afford relief, for it is 
 not a principle of equity that every 
 
 373
 
 §233 
 
 Liability of Sureties. 
 
 ance of any final decree that may be rendered against their 
 principal the complainant, but when he dies before final hearing, 
 
 joint covenant shall be treated aa if 
 it were joint and several. The court 
 will not vary the legal effect of the 
 instrument by making it several as 
 well as joint, unless it can see, either 
 by independent testimony or from the 
 nature of the transaction itself, that 
 the parties concerned intended to cre- 
 ate a separate as well as joint lia- 
 bility. If through fraud, ignorance 
 or mistake, the joint obligation does 
 not express the meaning of the par- 
 ties, it will be reformed so as to 
 conform to it. This has been done 
 where there is a previous equity 
 which gives the obligee the right to a 
 several indemnity from each of the 
 obligors, as in the case of money lent 
 to both of them. There a court of 
 equity will enforce the obligation 
 against the representatives of the de- 
 ceased obligor, although the bond be 
 joint and not several, on the ground 
 that the lending to both creates a 
 moral obligation in both to pay, and 
 that the reasonable presumption is 
 the parties intended their contract to 
 be joint and several, but through 
 fraud, ignorance, mistake, or want of 
 skill, failed to accomplish their ob- 
 ject. This presumption is never in- 
 dulged in the case of a mere surety, 
 whose duty is measured alone by the 
 legal force of the bond, and who is 
 under no moral obligation whatever 
 to pay the obligee, independent of his 
 covenant, and consequently there is 
 nothing on which to found an equity 
 for the interposition of a court of 
 chancery. If the surety should die 
 before his principal, his representa- 
 tives cannot be sued at law, nor will 
 they be charged in equity. These gen- 
 eral doctrines on this subject were 
 
 presented at large in this court in 
 the case of the United States v. Price. 
 and they are sustained by the text- 
 writers and books of reports in this 
 country and England. The authority 
 of the decisions on this subject we 
 do not understand the appellant as 
 questioning in a proper case; but he 
 insists they are not applicable here. 
 His position is that a statutory obli- 
 gation like the bond in question i9 
 different in principle and should 
 be construed differently from a 
 contract made by private parties 
 between themselves, as the obli- 
 gees in such a bond cannot di- 
 rect the form it shall take or elect 
 whether to accept or refuse it. The 
 bond which is the foundation of this 
 suit was given in 1846 under the 
 order of the Court of Chancery of 
 New York, to stay the proceedings in 
 an action at law then pending in the 
 Superior Court of the city, and it 
 is argued as the statute does not re- 
 quire bonds of this character to be 
 joint and several, in legal intendment 
 they must be joint in form and all 
 the obligors therefore should be re- 
 garded as principals. It is undoubt- 
 edly true, as words of severalty are 
 not employed, that a joint bond is a 
 compliance with the law, but it by no 
 means follows that a joint and sev- 
 eral obligation is not an equal com- 
 pliance with its terms. It is cer- 
 tainly not forbidden, and as the stat- 
 ute is silent on the subject, the fair 
 intendment is that either was au- 
 thorized, and that the court had the 
 right to direct which should be given. 
 If this be so, then it cannot properly 
 be said that the party enjoined had 
 no voice in the nature or sufficiency 
 
 374
 
 Liability of Sureties. 
 
 §234 
 
 and the cause is revived in the name of his administrator, they are 
 bound for the satisfaction of the decree rendered against him. 38 
 
 § 234. Bonds as joint or several. — It has been decided that in 
 the absence of express terms fixing the character of an injunction 
 bond, it should be construed to be either joint or several according 
 as the interests of the parties enjoined are joint or several. 39 And 
 in an action on an undertaking given in an injunction suit, the 
 fact that one of the principals in the injunction has been discharged 
 as a party defendant, does not release the sureties on the undertak- 
 ing, since the liability of the principals being several as well as 
 joint, an award of damages against one principal is sufficient to 
 hold the sureties. 40 
 
 of the security to be taken, for the 
 discretion of the chancellor was, 
 necessarily, to be exercised in rela- 
 tion to both these matters if his at- 
 tention was directed to them, after 
 both sides were heard. It is quite ap- 
 parent, if this discretion had been in- 
 voked that the instrument of security 
 might have been different; and 
 equally apparent that Lafarge in 
 case this had been done might have 
 been unwilling to assume the addi- 
 tional risks which a separate liabil- 
 ity imposed on him. We must sup- 
 pose, in the absence of any evidence 
 on the subject, that he knew the legal 
 differences between the different kinds 
 of obligations, and became bound in 
 the way he did because the joint li- 
 ability was more advantageous to 
 him. If this was his intention it 
 would be manifestly unjust for a 
 court of equity, after the legal 
 status was fixed by his death, to 
 change the nature of the obligation 
 which he executed in order to charge 
 his estate. In the cases in which 
 equity has treated the obligation aa 
 joint and several, although in form 
 joint, the surety participated in the 
 consideration. In this case Lafarge 
 
 had no pecuniary interest in the liti- 
 gation which was enjoined, and de- 
 rived no personal benefit from the in- 
 strument of writing which he signed, 
 and therefore no good reason can be 
 furnished why his standing in a 
 court of equity is not as favorable 
 as if he were surety, without ad- 
 vantage to himself, in the borrow- 
 ing of money. In neither case is 
 there any obligation to pay indepen- 
 dent of the covenant. In the one 
 there is a liability for a debt; in the 
 other, for a result in an action at 
 law. Both are cases of contract, for, 
 indeed, suretyship can exist in no 
 other way; and we know of no prin- 
 ciple of equity by which a contract 
 of indemnity is to be construed so as 
 to charge an estate, and an engage- 
 ment to pay money to receive a con- 
 trary construction. The equities in 
 both are clearly equal, and as the 
 estate of Lafarge is not liable at 
 law. it will not be held liable in 
 equity." 
 
 38. Fowler v. Scott, 11 Ark. 675. 
 
 39. Sturgis v. Knapp, 33 Vt. 486, 
 519. 
 
 40. Smith v. Atkinson, 18 Col. 
 255, 32 Pac. 425, per Hayt, C. J.: 
 
 375
 
 §235 
 
 Liability of Sureties. 
 
 § 235. Sureties when bound by decree though not parties. — 
 
 A decree dismissing an injunction because wrongfully sued out 
 is conclusive as to the wrongful suing out, when offered in evidence 
 in an action for damages against the surety on a bond, the under- 
 taking of which is that the principal will pay all damages which 
 may be adjudged by reason of the injunction, although the surety 
 may not have been a party to the injunction, and there may have 
 been no damages adjudged against the principal. A surety not 
 only may stand on the precise terms of his contract, but he also 
 must abide by such terms, and if he undertakes to pay all such 
 damages as may be adjudged against complainant, in case the 
 injunction shall be dissolved, he thereby voluntarily assumes such 
 a connection with the injunction suit as to be concluded and bound 
 by the decree in it though not a party to it. 41 
 
 "Tabor and Smith were jointly and 
 severally liable as principals for the 
 wrongful suing out of the injunction, 
 and an award of damages against 
 either is sufficient to maintain an 
 action against the sureties upon the 
 undertaking. This is true in the ab- 
 sence of the code provision, and while 
 this provision does away with the 
 necessity of an award of damages be- 
 fore bringing suit, permitting instead 
 the damages to be assessed against 
 all parties in one action, this does not 
 change the joint and several nature 
 of the liability." 
 
 41. Shenandoah Nat. Bank v. 
 Read, 86 Iowa, 136, 53 N. W. 96, the 
 court : " Appellant contends that, as 
 he was not a party to the action in 
 which the decree was rendered, he is 
 not bound by the finding therein that 
 the injunction was wrongly sued out, 
 and therefore the court erred in ad- 
 mitting the decree in evidence, and 
 in giving the instruction quoted 
 above. The right of Elizabeth Bab- 
 cock to the injunction was directly 
 in issue in that case, and was adjudi- 
 
 cated against her. The dismissal of 
 her petition was a determination that 
 she was not entitled to the injunc- 
 tion, or, in other words, that it was 
 wrongly sued out. Loomis v. Brown, 
 16 Barb. 325; Dowling v. Polack, 18 
 Cal. 627. The case before us must 
 not be confounded with cases where 
 fraud or collusion in obtaining the 
 decree is alleged, nor with those 
 upon bonds differently conditioned. 
 Appellant cites cases upon bonds 
 given to secure the payment of any 
 sum that might be found due from 
 the principal on an accounting, and 
 cases on official bonds. These are not 
 in point; the former being merely 
 security for the payment of a debt, 
 and the latter conditioned generally 
 for the performance of official duties, 
 and not for a specific act, as in this 
 case. Appellant relies upon the gen- 
 eral doctrine that none but parties to 
 an action, and their privies, are bound 
 by the adjudication. While such is 
 the general rule, the books and daily 
 practice afford many instances where 
 the sureties are concluded, by judg- 
 
 376
 
 Liability of Sureties. 
 
 §236 
 
 § 236. Suing principal before surety. — Where the surety under- 
 takes to respond in damages, if the court shall decide that the 
 plaintiff was not entitled to an injunction, his liability becomes 
 absolute on such decision being reached by the court, and the de- 
 fendant is not obliged to bring a suit for his damages against the 
 plaintiff before proceeding against the surety. 42 And where the 
 injunction bond executed by the sureties is conditioned that 
 plaintiff " shall pay all sums of money, damages and costs that 
 shall be adjudged against him if the injunction shall be dissolved," 
 the amount of damages assessed against him in the injunction, suit 
 if not vitiated by fraud or collusion, is binding and conclusive 
 
 ments against their principals, 
 though not parties to the action ; as, 
 for instance, in the case of replevin 
 and supersedeas bonds. Whether, in 
 the absence of statute, the surety is 
 thus concluded, depends upon the 
 terms and conditions of his under- 
 taking. If his covenant is that his 
 principal will comply with the judg- 
 ment, then he is concluded by that 
 judgment as to all matters deter- 
 mined thereby, though not a party 
 to the action. In McAllister v. 
 Clark, 86 111. 236. it was claimed, 
 as in this case, that, the surety not 
 being a party, he was not bound by 
 the decree. The court says : ' The 
 misfortune to him is, hn contract 
 binds him to abide that decree, with- 
 out being a party to it. His under- 
 taking is that he will pay all such 
 costs and damages as shall be ad- 
 judged against the complainant in 
 case the injunction shall be dissolved.' 
 In Towle v. Towle, 46 N. H. 434, the 
 court says : ' By signing the bond in 
 suit with Levi G. Towle, the plain- 
 tiff in the suit in equity, the sureties 
 voluntarily assumed such a connec- 
 tion with that suit that they are con- 
 cluded by the decree in it, in the 
 present suit upon the bond, so far 
 os the same matters are in ques- 
 
 tion.' A number of cases are cited 
 fully sustaining the conclusion an- 
 nounced. See, also, Pico v. Web- 
 ster. 14 Cal. 204. In some of the 
 States, damages in cases like this are 
 ascertained in the original action in 
 pursuance of statute or the rules of 
 equity practice. Methodist Churches 
 v. Barker, 18 N. Y. 463; McAllister 
 v. Clark, 86 111. 236; Lothrop v. 
 Southworth, 5 Mich. 436; Sturgis v. 
 Knapp, 33 Vt. 486, 10 Amer. & Eng. 
 Enc. Law 994; Bailey v. Gibson, 29 
 Ark. 472. In this State such damages 
 are only ascertainable and recoverable 
 in an action on the bond. Fountain 
 v. West, 68 Iowa, 380, 27 N. W. 264. 
 In States where the practice is to 
 assess damages iu the original action, 
 it has been repeatedly held that the 
 surety on the injunction bond was 
 concluded by the finding as to dam- 
 ages, though not notified of, or a 
 party to, the proceeding. See cases, 
 supra. The reasons that render the 
 decree as to damages conclusive on 
 the surety apply with equal force 
 to the finding that the injunction 
 was wrongfully sued out." 
 
 42. Dangel v. Levy, 1 Idaho, 722, 
 725. See Shenandoah Nat. Bank v. 
 Read, 86 Iowa, 136, 53 N. W. 96. 
 
 377
 
 § 237 Liability of Sureties. 
 
 on the sureties under the terms of their undertaking, though a 
 judgment might also have been entered against them at the time 
 of the assessment. 43 But where the condition of the bond was 
 that plaintiff " shall pay all such costs and damages as may be 
 recovered against him for the wrongful suing out of said injunc- 
 tion," the complaint on the bond in the action against the surety 
 was held demurrable in not averring that a judgment had been 
 recovered against the principal, and that he had failed to satisfy 
 it. 44 And if the sureties undertake that such damages shall be 
 paid as shall be awarded against the principal, an action cannot 
 be maintained against them if it is not alleged that damages were 
 awarded against him, and he has failed to pay them. 45 Under a 
 statute providing that in suing on an injunction bond suit need 
 not be brought in the first instance against the principal to ascer- 
 tain the amount of damages sustained, but principal and surety 
 may be sued together, and at the trial damages may be assessed 
 and awarded against principal and surety in the action it has been 
 held that, where the action is dismissed by plaintiff on his 
 motion and the injunction dissolved at his cost, an action can 
 be brought against the surety on the undertaking to recover for 
 attorneys' fees and expenses incurred in the dissolution of the 
 injunction, though no damages were awarded on the dissolution. 46 
 
 §237. Release of surety; defenses. — A surety cannot plead 
 ignorance of the injunction suit, the pendency of which is recited 
 in the injunction bond which he executes, 47 or that the injunction 
 was not granted, 48 and is bound to take notice of the answer in the 
 original suit, and of amendments made to the answer. 49 And it is 
 decided that the sureties cannot go behind the decree in the injunc- 
 
 43. Nolan v. Jones, 108 Mo. 431, 46. Lynch v. Metcalf. 3 Colo. App. 
 16 S. W. 1107. 131, 32 Pac. 183. See, also, Smith v. 
 
 44. Dunn v. Davis 37 Ala. 95, cit- Atkinson. 18 Col. 255, 32 Pac. 425. 
 ing Garrett v. Logan, 19 Ala. 344, 47. Lambert v. Haskell, 80 Cal. 
 346; Davis v. Gully. 2 Dev. & Bat. 611. 22 Pac. 327; Pierce v. Whiting, 
 360; Watts v. Sheppard, 2 Ala. 425. 63 Cal. 540. 
 
 45. Anderson v. Falconer, 34 Miss. 48. Fowler v. Scott, 11 Ark. 675. 
 257; Tarpey v. Shillenberger, 10 Cal. 49. Sharp v. Schmidt, 62 Tex. 263. 
 390. 
 
 378
 
 Liability of Sureties. § 237 
 
 ticm suit to question the legality of an agreement upon which the 
 decree was founded. 50 And it is no defense in mitigation of 
 damages in an action against the surety that his principal is 
 solvent and able to pay his own debts. 51 Nor is it material that 
 there is an omission in the body of the bond of the names of the 
 sureties who signed it where the bond was approved by the court. 52 
 And a delay in applying for an assessment of damages against the 
 sureties on an injunction bond will not bar recovery, the claim for 
 damages having been left open on a settlement between the sureties 
 and their principal. 53 Again, sureties on an injunction bond, where 
 a foreclosure is restrained, cannot include as a payment on the 
 damages assessed against them the amount at which they bid in 
 the land at the foreclosure sale for their own protection. 54 If an 
 injunction bond is executed by the obligors before the clerk of the 
 court and in the court's presence, and it is accepted and acted on as 
 their bond, the surety is estopped from setting up the defense that 
 by express agreement with his principal, but of which the obligee 
 knows nothing, he signed the bond upon the condition that another 
 person named should sign it, and that this fact was announced 
 to the clerk at the time the surety signed. 55 And it has been decided 
 that when in any particular case, a clerk and master has accepted 
 an injunction bond, and thus judicially passed upon the questions 
 of the sufficiency of the sureties thereto, of the genuineness of their 
 signatures and of such signatures having been affixed under such 
 circumstances as to be obligatory upon- them, the proof to overturn 
 his action, by showing that the signatures of any of the parties were 
 put thereon as an escrow should be as clear, satisfactory and de- 
 monstrative as that required to set aside a decree or judgment of a 
 court of record upon the ground of fraud. 56 Where an injunction 
 
 50. Oelrichs v. Spain. 15 Wall. 598, 23 N. E. 1112, holding that a de- 
 (U. S.) 211, 229, 21 L. Ed. 43. lay of four years did not bar recov- 
 
 See § 230 herein as to effect of ery. 
 
 agreements of parties to dissolve an 54. Holcomb v. Rice, 119 N. Y. 
 
 injunction. 598. 23 N. E. 1112. 
 
 51. Hunt v. Burton, 18 Ark. 188. 55. Harman v. Howe, 27 Gratt. 
 
 52. Hyatt v. Washington. 20 Ind. (Va.) 676. 
 
 App. 148, 50 N. E. 402, 67 Am. St. 56. Ward v. Cullom, 2 Cold. 
 
 Rep. 248. (Tenn.) 353, 365. Per Milligan, J. 
 
 53. Holcomb v. Rice, 119 N. Y. 
 
 379
 
 § 238 Liability of Sureties. 
 
 is dissolved upon a condition and that condition has been complied 
 with by the defendant in equity, the surety in the injunction bond 
 is exonerated. 57 And where an order is given that an injunction 
 may be continued upon the giving of a new bond with new security 
 and such new bond is given and accepted the sureties in the first 
 bond are thereby discharged. 58 But where a motion to dissolve an 
 injunction is overruled before a trial on the merits the judgment 
 sustaining the injunction is only interlocutory and does not release 
 the surety. 59 ~Nor are the obligors on a bond released by a judg- 
 ment making an injunction perpetual where there is a subsequent 
 reversal of the judgment in consequence of which the injunction 
 is dissolved. 60 And the abatement of the suit in equity as to one 
 of several joint plaintiffs by the neglect of both parties to revive, 
 or the discharge of on© upon some ground applicable to him alone 
 does not affect the liability of the surety for the surviving party 
 or parties against whom a final decree may have been properly 
 ordered. 61 
 
 § 238. Sureties' obligation construed. — While the surety to an 
 injunction bond cannot be held beyond the express terms of his 
 contract, yet the meaning of such terms is a matter of interpreta- 
 tion which is subject to the same rules as are observed in respect 
 to other contracts. Thus where the sureties bound themselves to 
 pay the parties enjoined, " in case said injunction shall issue," 
 such damages as they may sustain by reason of said injunction, 
 it has been decided that the quoted words " shall issue " must be 
 construed to mean " shall be continued in force," for otherwise the 
 undertaking would be futile, and the injunction order ridiculous. 62 
 
 57. Gray v. Campbell, 3 Munf. vides that in interpreting the terms 
 (Va.) 251. of a contract of suretyship the same 
 
 58. Kent v. Bierce, 6 Ohio, 336. rules are to be observed as in the 
 
 59. McMillen v. Gibson, 10 La. (0. case of other contracts. Section 1643 
 S.) 517. requires that a contract be inter- 
 
 60. Williams v. Baker, 13 Ohio C. preted so as to make it capable of be- 
 C. 500, 7 Ohio Dec. 515. ing carried into effect, if it can be 
 
 61. Kelly v. Gordon, 3 Head done without violating the intention 
 (Tenn.), 683. of the parties. Held, that as no un- 
 
 62. Civil Code, Cal., § 2837, pro- dertaking can be required on final in- 
 
 380
 
 Liability of Sureties. 
 
 239 
 
 § 239. Same subject — In Illinois, too, it has been held that 
 the rule of strict construction, as applied to the contract of the 
 sureties on an injunction bond, and forbidding their liability to 
 be extended by implication beyond the terms of the bond, in no 
 way interferes with the use of the ordinary tests by which the 
 intention of contracting parties is determined. Thus where, on 
 dismissal of an injunction suit, a temporary injunction was con- 
 tinued in force pending an appeal, on a bond being given that 
 the appellant should, inter alia, pay the " damages growing out 
 of the continuance of the injunction, in case the said decree 
 should be affirmed," it was held that the sureties on such bond 
 were liable, on the affirmance of the decree, for damages caused 
 by the continuance of the injunction, though no damages were 
 or could be awarded in the decree of affirmance; for the other 
 
 junction, the Code of Civil Procedure 
 providing only for undertakings on 
 preliminary injunctions, the words 
 " shall issue," in an undertaking 
 given on the continuance of a pre- 
 liminary injunction, conditioned " in 
 case said injunction shall issue," 
 must be construed under these code 
 provisions as meaning " shall be con- 
 tinued in force.'' Lambert v. Has- 
 kell, 80 Cal. 611, 22 Pac. 327. The 
 court said. " It is argued that the 
 phrase ' in case said injunction shall 
 issue ' shows that some injunction to 
 issue in the future was intended, and 
 that it must be held that the under- 
 taking was upon the final injunction 
 to be issued in case judgment should 
 be ordered for the plaintiffs upon the 
 trial. But we do not think so. If 
 the language had been ' in case said 
 injunction shall be continued in 
 force ' instead of ' shall issue ' there 
 could have been no doubt. The ques- 
 tion is therefore whether the words 
 ' shall issue ' can be construed to 
 mean ' shall be continuel in force.' 
 Now we think that there might be 
 cases in which the circumstances 
 
 would show that the two phrases 
 were used as equivalent to each other. 
 There is no provision of statute ex- 
 pressly authorizing the requirement 
 of an undertaking as a condition for 
 ' continuing ' an injunction. The only 
 provision is that an undertaking may 
 be required 'on granting' an injunc- 
 tion. But it cannot be doubted that 
 the court has power where it appears 
 that the injunction was issued on an 
 insufficient undertaking, to order (as 
 it did in the case in question ) that 
 the injunction should be dissolved 
 unless a sufficient undertaking should 
 be given — or, in other words, should 
 be continued in force only on condi- 
 tion that a sufficient undertaking 
 should be given. Such a proceeding 
 would be sustained upon the theory 
 that the words ' on granting ' were 
 broad enough to mean ' on continuing 
 in force.' For the transaction would 
 be, in substance and effect, though 
 not in form, the ' granting ' of an in- 
 junction. And the same would be 
 true if the language had been ' on is- 
 suing ' instead of 'on granting ' the 
 injunction. We think, therefore, that 
 
 381
 
 §240 
 
 Liability of Sureties. 
 
 construction of the condition of the bond, contended for by the 
 sureties, would render the condition meaningless. 43 
 
 § 240. Awarding damages against sureties in original action. 
 —The general rule is that a judgment for damages cannot be 
 rendered against sureties on an injunction bond, nor such damages 
 assessed, in the original action in which the bond was given; but 
 
 the two phrases mentioned may be 
 held to be in some cases equivalent in 
 meaning if the circumstances show 
 that such was the intention. And the 
 circumstances here clearly show that 
 such was the intention, for it is 
 admitted by the pleadings that the 
 undertaking in suit was given to con- 
 tinue in force an injunction." 
 
 63. Schreffler v. Nadelhoffer, 133 
 111. 536, 25 N. E. 630. " It must be 
 conceded that the condition of the 
 bond in question, when read by itself 
 and without reference to surrounding 
 circumstances, is of doubtful mean- 
 ing. The draftsman, in preparing the 
 bond, instead of drawing two bonds, 
 one to serve as an appeal bond and 
 the other as an injunction bond, took 
 a blank appeal bond, and endeavored 
 by inserting a clause providing for 
 the payment of the damages growing 
 out of the continuance of the injunc- 
 tion, to make it serve the purposes 
 of both an appeal and an injunction 
 bond. The place in which the last 
 named clause is inserted, and its rela- 
 tion to the other words of the con- 
 dition, are such as to render it uncer- 
 tain, if we consider merely what ap- 
 pears upon the face of the instru- 
 ment, whether the undertaking is to 
 pay all damages growing out of the 
 continuance of the injunction, in case 
 the decree is affirmed by the Appel- 
 late Court, or merely to pay all such 
 damages arising from that cause as 
 
 should be awarded against the obli- 
 gors by the judgment of that court. 
 Either reading may be adopted with- 
 out doing violence to any of the lan- 
 guage of the condition. But when we 
 view the condition in the light of 
 surrounding circumstances, there can 
 be no reasonable doubt as to which of 
 those meanings was within the pur- 
 pose and intent of the parties. Of 
 these circumstances we may notice, 
 first, the fact that the Appellate 
 Court had no jurisdiction, whatever 
 might be the outcome of the appeal, 
 to render judgment against the obli- 
 gors for the damages resulting from 
 the continuance of the injunction. 
 We must attribute to the obligors the 
 intention to enter into an obligation, 
 every provision of which would be 
 valid, but if the condition is inter- 
 preted as importing an obligation to 
 pay only such damages as should be 
 adjudged by the Appellate Court, it 
 becomes, so far as that part of it ia 
 concerned, merely senseless and nuga- 
 tory. Then, again, the circumstances 
 under which the appeal was taken 
 and the bond given point to the con- 
 clusion that it was the intention of 
 the obligors to secure to the obligee 
 the payment of the damages growing 
 out of the continuance of the in- 
 junction, in case the decree should be 
 affirmed. The Circuit Court had ren- 
 dered its decree, dismissing the bill 
 for want of equity, and dissolving the 
 
 382
 
 Liability of Sureties. 
 
 240 
 
 the proper mode of assessing such damages is by an independent 
 action on the bond, in which the sureties may have their day in 
 court. 64 The general rule is followed in Kentucky, except when 
 the enforcement of a judgment is enjoined. 65 Certainly in no 
 jurisdiction should damages be awarded against a surety on an 
 injunction bond, without notice to him, or without some proceeding 
 to which he is made a party. 66 In Vermont it has been decided 
 
 injunction. The complainants de- 
 sired to remove the record to the Ap- 
 pellate Court for review, and to have 
 the injunction continued in force 
 until the final decision of that court. 
 To obtain such continuance of an in- 
 junction, a party is ordinarily re- 
 quired to execute to the opposite 
 party a bond indemnifying him 
 against all damages which may there- 
 by result to him. This we think the 
 obligors wished and intended and 
 undertook to do, and if the bond is 
 equally susceptible of two interpre- 
 tations, one of which is consistent 
 with and accomplishes that intention, 
 as we think it is, it is very clear that 
 such interpretation must be deemed 
 to be the true one. The undertaking 
 to pay the appellee his damages, 
 upon the sole condition that the de- 
 cree should be affirmed by the Appel- 
 late Court, must be held to be within 
 the strict terms of the bond as the 
 obligors made it, and not an obliga- 
 tion imported into it by implication 
 or construction. Citing Stull v. 
 Hance, 62 111. 52; Mix v. Singleton, 
 86 111. 194; Kastner v. Winstanley, 
 20 Up. Can. C. P. 101; Hamilton v. 
 Van Rensselaer, 43 N. Y. 244 ; Belloni 
 v. Freeborn, 63 N. Y. 383; Gates v. 
 McKee, 13 N. Y. 232; Crist v. Bur- 
 lingame, 62 Barb. (N. Y.) 351; Locke 
 v. McVean, 33 Mich. 473." 
 
 64. Spencer v. Sherwin, 86 Iowa, 
 117, 53 N. W. 86; Fountain v. West, 
 
 68 Iowa, 380, 27 N. W. 264 ; Grove v. 
 Bush, 86 Iowa, 94, 53 N. W. 88; Tay- 
 lor v. Brownfield, 41 Iowa, 264. 
 
 65. Rankin v. Estes, 13 Bush. 
 (Ky.), 428; Logsden v. Willis, 14 
 Bush (Ky.), 183. 
 
 66. Spencer v. Sherwin, 86 Iowa. 
 117, 53 N. W. 86. The court said: " The 
 sole question presented on this rec- 
 ord is, did the District Court have 
 such jurisdiction of plaintiffs herein, 
 as sureties on the injunction bond, 
 that it could render a valid judgment 
 against them as a part of its judg- 
 ment in the original case in which 
 the bond was given? We think it 
 is very clear that the court in this 
 case had no jurisdiction whatever to 
 render judgment against the sureties. 
 They were not parties to the action. 
 They were in no manner notified of 
 the proceeding to assess damages 
 against them. The form of the obli- 
 gation entered into by them did not 
 of itself, and in the absence of stat- 
 ute, have the legal effect of making 
 them parties to the action in such 
 a sense that they would be bound by 
 the proceedings had therein. The rul- 
 ings of courts on this question are in 
 several States controlled by the pe- 
 culiar provision of their statutes; as 
 when provision is made on the dis- 
 solution of the injunction for a refer- 
 ence to ascertain damages, in which 
 case it is held that notice to the 
 surety is desirable, even if not 
 
 383
 
 §241 
 
 Liability of Sueeties. 
 
 that the damages may be assessed in the injunction suit, as between 
 the parties thereto, but that the assessment affects the sureties in 
 the bond only as it fixes the liability of their principal, and thi^ 
 determines the amount to be recovered on the bond. 67 
 
 § 241. Same subject ; in Arkansas. — In Arkansas a statute pro- 
 viding for the summary assessment of damages in the injunction 
 suit, on the dissolution of the injunction, has been held to apply 
 only or mainly where the enforcement of a judgment is enjoined. 
 An injunction to prevent the sale of particular property is not 
 within the statute, and it is error to award damages on dissolving 
 it. 68 And upon the dissolution of an injunction to restrain a 
 
 strictly necessary. Hill v. Thomas, 
 19 S. C. 230; Jordan v. Volkenning, 
 72 N. Y. 300. In some States, while 
 it is held under their practice that 
 damages may be assessed in the prin- 
 cipal cause, yet it is said that the 
 better doctrine is to require a sep- 
 arate suit upon the bond. Hayden v. 
 Keith, 32 Minn. 277, 20 N. W. 195. 
 In Texas, while under their decisions 
 damages may be assessed in the orig- 
 inal action, the court recognizes the 
 fact that the law generally is that, 
 ' in the absence of an express provi- 
 sion, a statute authorizing judgment 
 to be rendered against the sureties on 
 an injunction bond for the damages 
 for wrongfully suing out the writ, tho 
 sureties must be cited, or an inde- 
 pendent action must be brought on 
 the bond.' Coates v. Caldwell, 71 
 Tex. 19. 8 S. W. 922. The weight of 
 authority undoubtedly is that in case 
 of a bond conditioned like that in 
 controversy, and in the absence of 
 express statutory provisions author- 
 izing it, the court cannot, in the orig- 
 inal action, assess damages against 
 the sureties. The proper mode in such 
 cases is by an action directly on the 
 bond, which affords the sureties op- 
 
 portunities for a day in court. In 
 Fountain v. West, 68 Iowa, 380. 27 
 N. W. 264, the plaintiff gave a bond 
 conditioned to ' pay all damages 
 which might be adjudged against 
 him by reason of the injunction, and 
 pay the judgment, the collection of 
 which was enjoined, if so adjudged 
 against him.' The injunction was 
 dissolved. An action was brought on 
 the bond. It was held that damages 
 could not be adjudged in the original 
 action, that no such issue could be 
 joined therein and that the damages 
 could not be definitely ascertained 
 until the injunction was dissolved. 
 It is there said: 'The statute con- 
 templates, and the bond sued on 
 covers, such damages as may be ad- 
 judged against the obligors in an 
 action brought to determine whether 
 any damages have been sustained.' 
 The reasoning of the opinion applies 
 to the case at bar, and is fully sup- 
 ported by the cases, so far as a bond 
 like that in controversy is concerned." 
 
 67. Sturgis v. Knapp, 33 Vt. 486, 
 521. 
 
 68. Stanley v. Bonham, 52 Ark. 
 354, 12 S. W. 706. See Marshall v. 
 Green, 24 Ark. 411, as to the souie- 
 
 384
 
 Liability of Sureties. § 242 
 
 trespass the court has no right in the original action to assess the 
 damages caused by the injunction, but will remit the parties to 
 their action on the injunction bond. 69 When the court has the right 
 to assess the damages in the injunction suit on the dissolution of 
 the injunction, judgment therefor shall be rendered against the 
 party who obtained the injunction, and the assessment shall be 
 conclusive against his surety. 70 In a suit for an injunction to 
 restrain the collection of taxes, a court of equity, on dissolving the 
 injunction, cannot proceed to assess the damages thereby caused 
 and render judgment therefor against the sureties. 71 But the de- 
 fendant's remedy for his damages is by an action at law upon the 
 injunction bond. 72 
 
 §242. Same subject; in Louisiana. — In order to prevent the 
 abuse of injunctions, which formerly existed in Louisiana, where 
 a judgment debtor sought to delay the course of justice by enjoin- 
 ing the execution of a money judgment against him, statutes were 
 passed which greatly enlarged the liability of the sureties who 
 went on his injunction bond, and practically made them co-plain- 
 tiffs with him in the injunction suit. 73 Thus in 1884 a judgment 
 debtor obtained an injunction to restrain the execution of a money 
 judgment against him, and the surety on the injunction bond was 
 held not only to be constructively before the court, but to be as 
 liable as a party as he would have been if his name had bren in- 
 serted in the injunction petition and appeared at every subsequent 
 stage of the suit, so that he was not entitled before the issuing of 
 execution against him to notice of the judgment of dissolution, 
 with its award of damages. 74 
 
 what similar effect of a former stat- 71. Bailey v. Gibson, 20 Ark. 472. 
 
 ute. 72. Clayton v. Martin, 31 Ark.217. 
 
 €9. Greer v. Stewart, 48 Ark. 21, 73. La. Rev. Sts. (187G), § 3735. 
 
 2 S. W. 251. See Fowler v. Scott 21 74. Friedman v. Adler, 36 La. 
 
 Ark. 117. The defendant may sue Ann. 384. per Manning, J.: "The 
 
 on the bond without waiting for final question is thus squarely presented, 
 
 decree in the injunction suit or suing is the surety to an injunction bond 
 
 out execution on the decree. Sizer v. entitled to notice of the judgment of 
 
 Anthony, 22 Ark. 405. dissolution with damages, when the 
 
 70. Mansfield s Digest, § 3766. injunction has arrested the execution 
 
 25
 
 §243 
 
 Liability of Sureties. 
 
 § 243. Same subject in Louisiana continued. — Where the in- 
 junction is not to restrain the execution of a money judgment, the 
 
 of a money judgment. The surety on 
 an injunction bond is considered a 
 plaintiff in the suit. Fifty years ago 
 the facility with which injunctions 
 were obtained under our code of prac- 
 tice had already become a fruitful 
 source of abuse, to prevent the con- 
 tinued recurrence of which the stat- 
 utes of 1831 and 1833 attached to the 
 suretyship of such bonds conse- 
 quences more enlarged and more 
 stringent than had hitherto attended 
 any act of suretyship. And these 
 provisions were designed to deter per- 
 sons from assisting parties who had 
 been judiciously condemned in evad- 
 ing or delaying the course of justice 
 in cases wherein they were not en- 
 titled to relief. The surety was so 
 completely identified with the enjoin- 
 ing debtor as to become his co-plain- 
 tiff ipso facto by the mere act of 
 suretyship— a solidary judgment was 
 expressly authorized against them in 
 the pending suit if the injunction 
 were dissolved — and the solidarity of 
 obligation was crowned by fransfer- 
 ing the surety to the poaition of a 
 principal in this, that he was de- 
 prived of the plea of discussion, Code 
 Prac, art. 304; Denton v. Erwin, 5 
 La. Ann. 21. In construing these 
 anomalous and rigorous requirements 
 the courts have lent their hearty aid 
 to the interpretation that would best 
 effectuate the intention of the legisla- 
 ture, and in furtherance of it have 
 held that the surety was not merely a 
 nominal party to the injunction suit, 
 but such a real actual party that he 
 is entitled to be cited on appeal when 
 it, is by petition. Gibson v. Selby, 3 
 La. Ann. 318; and when the appeal is 
 by motion in open court, that he ia 
 
 embraced equally with his principal. 
 Mitchell v. Lay, 4 La. Ann. 514. And 
 where judgment was prayed against 
 the wrong person as surety, the court 
 gave judgment against him who was 
 really surety I'nion Bank v. Smith, 
 3 Lp. Ann. 147. So where the ver- 
 dict of the jury was against the prin- 
 cipal in the injunction bond alone, 
 and the judgment was against him 
 and the surety also, it was main- 
 tained. Mason v. Poulallier, 10 La. 
 Ann. 418; and the surety may be con- 
 demned on the trial of a rule to dis- 
 solve as well as on the merits, Betts 
 v. Mougin, 15 La. Ann. 52; and he is 
 so perfectly and irrevocably bound by 
 the petition, affidavit, order of in- 
 junction, etc., that they cure the 
 omission of any description of the 
 proceedings in the bond. Green v. 
 Huey. 23 La. Ann. 704. We need not 
 say more of Verges v. Gonzales, 33 
 La. Ann. 410, than that it was not a 
 case where the execution of a money 
 judgment was arrested. It is man- 
 ifest from this catena of decisions, 
 that the legal presence of the surety 
 in court is not a mere fiction of law, 
 nor is it correct to say that he is only 
 constructively before the court, since 
 the law proprio vigore makes him a 
 party, not nominally as is a sheriff 
 in an injunction, but really and actu- 
 ally stamped ineftaceably with all the 
 attributes, qualities, rights and lia- 
 bilities that appertain to and inhere 
 in a party as completely as if his 
 name had been inserted in the peti- 
 tion and had appeared at every sub- 
 sequent stage of the suit. If in an 
 appeal by motion he is embraced just 
 as is his principal, and in an appeal 
 by petition he ia entitled to service 
 
 38G
 
 Liability of Sureties. 
 
 § 243 
 
 sureties on the injunction bond are not deemed parties to the 
 injunction suit, and in order to recover damages against them the 
 defendant must sue on the injunction bond. 75 Thus in a suit to 
 have an administrator dismissed for maladministration, and to 
 enjoin the sale of property advertised for sale under an order of 
 
 when his principal is thus entitled; 
 he is likewise entitled to notice of 
 judgment only when his principal is, 
 and therefore when, as in this case, 
 the defendant appeared and defended 
 the suit, and is thus not entitled to 
 notice of judgment, the surety has no 
 cause of complaint when the execu- 
 tion issued upon the judgment of 
 dissolution and for damage3 against 
 him after the expiry of the delay for 
 an appeal, without notice to him of 
 the judgment. It will be observed 
 throughout that we are considering 
 and deciding alone the case where the 
 judgment, the execution of which is 
 arrested, is a judgment for the pay- 
 ment of money." In Mora v. Avery, 
 22 La. Ann. 417, the plaintiff en- 
 joined the execution creditor and 
 sheriff from selling the seized goods; 
 the answer was a general denial, and 
 prayed for twenty per cent, dam- 
 ages on the amount of the enjoined 
 judgment; the court below dissolved 
 the injunction and awarded the 
 twenty per cent, damages against 
 plaintiff, and on appeal the judgment 
 was amended so as to include the 
 surety and to condemn him in solido 
 with the principal to pay the dam- 
 ages. See. also, Mason v. Fuller, 12 
 La. Ann. 68; Vicksburg, etc., R. Co. 
 v. Barksdale, 15 La. Ann. 465. 
 
 75. In Sheen v. Stothart, 29 La. 
 Ann. 630, which was an action to en- 
 join trespass, the District Court on 
 appeal decreed that the demand of 
 plaintiffs be rejected and that de- 
 fendant recover against them and 
 their surety on the injunction bond in 
 
 solido, two hundred dollars damages 
 as attorney's fees. One of the rea- 
 sons urged by plaintiff's counsel to 
 obtain a rehearing was, that " dam- 
 ages can be allowed in the decree dis- 
 solving an injunction in only those 
 cases in which execution of a money 
 judgment has been superseded by the 
 writ." On appeal to the Supreme 
 Court that court said: " In this .ac- 
 cording to our jurisprudence, he is 
 right. As to the sureties on such 
 bonds the recourse should, we admit, 
 be by a direct action on their obli- 
 gations. . . . It is therefore ad- 
 judged that defendant's claim for 
 damages be, and the same is hereby 
 disallowed, as in case of nonsuit, and 
 their action on the injunction bond be 
 specially reserved." In Crescent City, 
 etc., Co. v. Larrieux, 30 La. Ann. 
 740, the court said : " We think the 
 court did not err, as it is well set- 
 tled that on trial of motions to dis- 
 solve injunctions not issued against 
 money judgments damages are not to 
 be allowed. The sureties are not 
 parties in such cases. The party is 
 left to his recourse on the bond." In 
 Jacobs v. Augustin, 3 La. Ann. 476, 
 the court said: "It has been repeat- 
 edly held that the Act of 1831 pro- 
 viding for the assessing of damages 
 on the dissolution of injunctions ap- 
 plies only to cases of judgments en- 
 joined. In other cases the party en- 
 joined is left to his remedy upon the 
 bond." Hyde v. Brashear, 19 La. 
 402; Morgan v. Driggs, 17 La. 176, 
 183. See, also. Verges v. Gonzales, 
 33 La. Ann. 410, 414. 
 
 387
 
 §§ 244, 245 Liability of Sureties. 
 
 court, there was judgment against plaintiff and dissolving the 
 injunction, but it was held that as the injunction was not to restrain 
 a money judgment it was not governed by the statutes of 1831 
 and 1833, and that defendant's remedy for damages was by a suit 
 on the injunction bond. 76 
 
 § 244. Same subject in New York. — The amount of damages 
 caused by an injunction, as ascertained by the court, or by a referee 
 and confirmed by the court, pursuant to section 623 of the New 
 York Code of Civil Procedure, is conclusive upon the sureties to the 
 amount named in the bond, but payment can be enforced only by 
 an action upon the injunction bond. 77 A reference and report upon 
 such damages duly confirmed are conclusive upon the sureties in 
 an undertaking providing for their being " ascertained by reference 
 or otherwise," though the sureties are not parties or notified of the 
 reference. 78 The proceeding to ascertain damages whether by the 
 court or the referee is not a proceeding in the injunction aclion, 79 
 and it is discretionary with the court to direct that the sureties 
 have notice of the proceeding; 80 but if the sureties are not notified, 
 any gross exaggeration as to his damage made by the defendant a3 
 a witness before the referee in the absence of the sureties, is suffi- 
 cient evidence of fraud to invalidate the assessment of damages. 81 
 The sureties cannot be bound in damages beyond the amount 
 specified in the bond. 82 The order confirming the referee's report 
 as to damages is appealable by the sureties to the Court of 
 Appeals. 83 
 
 § 245. Same subject ; in South Carolina, Missouri, Texas. — In 
 South Carolina it is decided that upon the dissolution of an injunc- 
 
 76. Willis v. Elam, 28 La. Ann. odist Churches v. Barker, 18 N. Y. 
 857. 463, 4G6. 
 
 77. Lawton v. Green, 64 N. Y. 81. Jordan v. Volkenning, 72 N. 
 326. Y. 300. 
 
 78. Methodist Churches v. Barker, 82. Leavitt v. Dabney, 9 App. Pr. 
 18 N. Y. 463. N. S. 373. 
 
 79. Lawton v. Green, 64 N. Y. 83. Newton v. Russell, 87 N. Y. 
 326. 330. 527. See Hotchkiss v. Pls>.tt, 7 Hun, 
 
 80. Code Civ. Pro., § 623; Meth- 56. 
 
 388
 
 Liability of Sureties. § 245 
 
 tion, the damages caused by the injunction and recoverable under 
 a bond whereby the obligors bound themselves " pursuant to the 
 statute," may be summarily ascertained by a reference in the prin- 
 cipal action without the delay and expense of another action, and 
 this assessment may be enforced by order of the court and by 
 execution against all the obligors, including the sureties, provided 
 they have all been notified of the reference and thus made parties 
 to it. 84 Under the Missouri Revision 1879, section 2713, provid- 
 ing that on the dissolution of an injunction, damages shall be 
 assessed and judgment rendered against the " obligors on the- 
 bond," the sureties have a right, on motion by defendant in the 
 original action for such assessment and judgment, to be let in to 
 defend and to require a jury; for as the statute authorizes the 
 rendering of a judgment for damages against the sureties, without 
 other jurisdiction over them than that acquired by the filing of the 
 bond, they are in court to answer for a breach of the bond from 
 the moment the injunction is dissolved, and are entitled to all the 
 rights of parties litigant. 555 And as they are concluded by the 
 judgment for damages against their principal, if it is free from 
 fraud, though obtained against him alone, they are entitled to an 
 appeal from it. 88 But until some proceeding be had to assess the 
 
 84. Hill v. Thomas 19 S. C. 230 old rule of court, the collection of 
 — the court: "It is true that this costs was enforced against a surety- 
 court has held in the case of Earle whose application in terms acknowl- 
 v. Cureton, 13 S. C. 19, that a judg- edged his liability if the plaintiff 
 ment for costs entered against one failed to recover. It seems to us 
 who was surety for costs, without any there can be no great objection to the 
 proceeding against him to charge him summary mode of enforcing the as- 
 upon his obligation, is wholly void; sessment found under reference, by 
 but that was where no proceeding of order, without the delay and expense 
 any kind had been taken against the of another action; provided always 
 surety. By signing the undertaking that the surety is regularly notified 
 under the law as it now stands, in and thus made a party to the pro- 
 wliich the parties obligated them- ceedings to assess the damages." 
 selves ' pursuant to the statute.' it 85. Nolan v. Jones, 108 Mo. 431, 
 may be considered that the surety 18 S. W. 1107. 
 
 waived a trial by jury in assessing 86. Nolan v. Jones. 108 Mo. 431, 
 
 damages, and that the summary pro- 18 S. W. 1107; St. Louis Zinc Co. v. 
 
 ceeding by reference is somewhat an- Hesselmeyer. 50 Mo. 180; Farrar v. 
 
 alagous to that by which under the Parker, 3 Allen (Mass.), 556. 
 
 389
 
 §245 
 
 Liability of Subeties. 
 
 damages against the sureties, they cannot be deemed to be parties 
 in the injunction suit, nor to have such an interest in a judgment 
 therein against their principal as will entitle them to an appeal 
 therefrom. 87 The obligation of injunction sureties under the Mis- 
 souri statute is not to pay all damages that the injunction may 
 cause to defendant, but to pay such as the court shall, upon the 
 dissolution of the injunction, adjudge against the plaintiff; and 
 until they have been adjudged in connection with the injunction 
 suit no action can be maintained against the sureties, on the bond. 88 
 In Texas, it would seem that the defendant upon proper pleadings 
 in reconvention of his loss by the wrongful suing of the injunction, 
 and proof thereof, may recover his damages therefor in the original 
 suit, without service of citation upon the sureties of the plea in 
 reconvention. 89 
 
 As to the conclusion of the sureties 
 by the judgment and assessment 
 against their principal, see Towle v. 
 Towle, 46 N. H. 434; Methodist 
 Churches v. Barker, 18 N. Y. 466; 
 Hotchkiss v. Piatt, 7 Hun (N. Y.), 
 56, aff'd 66 N. Y. 620; McAllister v. 
 Clark, 86 111. 236. 
 
 87. St. Louis Zinc Co. v. Hessel- 
 mayer, 50 Mo. 180. But see in Louisi- 
 
 ana, Avegno v. Johnston, 22 La. Ann. 
 400; Lane v. Roselius, 23 La. Ann. 
 258. 
 
 88. Dorriss v. Carter, 67 Mo. 544; 
 Kennedy v. Hammond, 16 Mo. 341; 
 Corder v. Martin, 17 Mo. 41. 
 
 89. Coates v. Caldwell. 71 Tex. 19, 
 8 S. W. 922; Sharp v. Schmidt, 62 
 Tex. 263. 
 
 390
 
 Violations and Punishment of. 
 
 CHAPTER VIII. 
 
 Violations and Punishment of. 
 
 SECTION 246. Void injunction need not be obeyed — If collusive. 
 
 247. Must be obeyed, though irregular. 
 
 248. Violation though no service — Knowledge enough. 
 248a. Same subject — Application of rule. 
 
 249. Excuse of violation. 
 
 250. Same subject continued — Effect of dissolution. 
 250a. Same subject — Effect of modification of injunction. 
 
 251. What constitutes violation. 
 
 252. Same subject — Injunction to protect right of way. 
 
 253. Same subject — Prior acts — Changed situation. 
 
 254. Same subject — Illustrations. 
 254a. Where injunction conditional. 
 
 255. Violation of patent injunctions. 
 
 256. Violation by parties — Generally. 
 256a. Violation by complainant. 
 256b. Violation by one not a party. 
 
 257. Violation by agents and servants. 
 
 258. Same subject — Violation by attorneys. 
 
 259. Violation excused. 
 
 260. Obeying injunction as far as clear — Changed situation. 
 
 261. Violation after determined by scope of terms. 
 
 262. Contempt proceedings to punish violations. 
 
 263. Same subject continued. 
 
 264. Collateral attack of injunction in contempt proceedings. 
 
 265. Punishment in Iowa. 
 
 266. Who may institute contempt proceedings — Estoppel. 
 
 267. Delay in punishing for contempt. 
 
 268. Who punishable for contempt. 
 
 269. Landlord and tenant — Husband and wife. 
 
 270. Party punishable on notice. .' 
 270a. Facts in mitigation. 
 
 271. Motive, intent or belief as excuse. 
 
 272. Disclaimer of contempt as excuse or in mitigation. 
 
 273. Advice of counsel as an excuse. 
 
 274. Contempt of receiver. 
 
 275. Punishing contempt in supplementary proceedings. 
 275a. Violations by corporations — Officers and employees. 
 
 276. Contempt proceedings against corporations — Affidavits. 
 276a. Injunction against partnership — Violations of. 
 
 277. Who can punish violations. 
 
 391
 
 § 246 Violations and Punishment of. 
 
 Section 278. Punishment in Federal courts. 
 
 279. In England. 
 
 279a. Payment of damages. 
 
 280. Indemnity fine for contempt — New York. 
 280a. Same subject continued. 
 
 281. Punishing contempt by annulling what has been done. 
 281a. Compelling restoration of status. 
 
 282. Party in contempt not entitled to jury. 
 
 283. Violation as contempt pending appeal. 
 283a. Same subject continued. 
 
 284. Appeals from orders in contempt proceedings. 
 284a. Judgment — .Recital of facts, in. 
 
 Section 246. Void injunction need not be obeyed; if collusive. 
 
 —If the court granting an injunction has no jurisdiction of the 
 parties and subject matter, the injunction is void and need not be 
 obeyed. Thus, a Colorado injunction was held to be absolutely 
 void, because the District Court of Araphoe county had no juris- 
 diction of the subject matter, namely, land in Rio Grande county, 
 and had no jurisdiction of the party enjoined, because, being man- 
 datory, it was granted without notice to defendant, though such 
 notice was imperatively required by the Colorado Code. 1 A court 
 has no authority to issue an injunction in a case not within its 
 jurisdiction, and cannot punish a disregard of the injunction 
 granted as a contempt, 2 as an injunction which is void, because 
 issued by a court without jurisdiction, may be treated as having 
 no existence. 3 So it is decided in a recent case that where an order 
 of injunction is void for want of jurisdiction of the person on the 
 part of the court granting it there is no basis for contempt pro- 
 ceedings. 4 And the rule just laid down is applied where a pre- 
 liminary injunction is void, because its effect is to dnspose of the 
 
 1. Smith v. People, 2 Col. App. 99, is not punishable as contempt. Gue- 
 
 29 Pac. 924. Where the inhabitants belle v. Epley, 1 Col. App. 199, 28 
 
 of a part of a county sought to be Pac. 89. 
 
 incorporated into a town have com- 2. State v. Voorhits, 37 La. Ann. 
 
 plied with all the requirements of 605. 
 
 the statute providing for such organ- 3. Ex parte Fisk, 113 U. S. 713, 
 
 ization, and the commissioners have 718, 5 -S. Ct. 724, 28 L. Ed. 1117; 
 
 called an election, a court has no Brown v. Moore, 61 Cal. 432, 435; 
 
 jurisdiction to enjoin such election, State v. Judge, 34 La. Ann. 741. 
 
 and a disobedience of such injunction 4. Lewis v. Peck, 154 Fed. 273. 
 
 392
 
 Violations and Punishment of. 
 
 §247 
 
 merits and divest property rights without a trial. 5 If an injunction 
 is the result of collusion between the parties, it is void^ and may 
 be disregarded by any one. 6 
 
 § 247. Must be obeyed, though irregular. — Unless an injunc- 
 tion order is void upon its face, for lack of jurisdiction on the part 
 of the judge who granted it, it must be obeyed, however erroneous 
 the granting of it may have been, until it is dissolved on motion 
 or appeal, or some other method of direct review in the action in 
 which it was granted. 7 Thus, though the granting of an injunction 
 in aid of an attachment may be erroneous, if made before the 
 service of the attachment, yet the error does not go to the jurisdic- 
 tion, and the injunction must be obeyed until it is dissolved. 8 And 
 an omission to state, in a restraining order, the grounds on which 
 it is allowed, as required by a Code provision, is a mere irregu- 
 larity, which will not excuse disobedience of the order. 10 Again, 
 
 5. Calvert v. State, 34 Neb. 616, 
 52 N. VV. 687. 
 
 6. State v. Rush County Com'rs, 
 35 Kan. 150, 10 Pac. 535. 
 
 7. Illinois. — Kerfoot v. People, 51 
 111. App. 409. 
 
 Indiana.— Central Union Tel. Co. v. 
 State. 110 Ind. 203, 12 N. E. 136. 
 
 Iowa. — Hatlestad v. Hardin, 
 County District Court (Iowa, 1908), 
 114 N. W. 628; State v. Baldwin, 57 
 Iowa, 266, 10 N. W. 645. 
 
 Kansas. — Billard v. Erhart, 35 
 Kan. 616, 12 Pac. 42. 
 
 Louisiana. — State v. Levy, 36 La. 
 Ann. 941. 
 
 New Jersey. — Forrest v. Price, 52 
 N. J. Eq. 16, 29 Atl. 215. 
 
 New York. — People v. McKane, 78 
 Hun, 154, 28 N. Y. Supp. 981; 
 Koehler v. Farmers & Drovers Nat. 
 Bank. 53 Hun, 637, 6 k Y. Supp. 
 470; Peck v. Yorks, 32 How. Prac. 
 408; Moat v. Holbein, 2 Edw. Ch. 
 188; compare State v. Milligan, 3 
 Wash. 144, 28 Pac. 369; Koehler v. 
 
 Dobberpuhl, 56 Wis. 497, 14 N. W. 
 631. 
 
 8. People ex rel. Cauffman v. Van 
 Buren. 136 N. Y. 252, 32 N. E. 775. 
 
 The court said: "No matter how 
 erroneous the action of the court may 
 have been in taking cognizance of 
 the suit and awarding a mandatory 
 process, unless there has been an en- 
 tire absence of judicial authority to 
 act in the premises it was the duty 
 of the defendants to obey its com- 
 mands, until they had been revoked 
 by an order made in the action in 
 which they had been issued either 
 upon motion or appeal, or by some 
 other method of direct review." Per 
 Maynard, J., citing People v. Sturte- 
 vant, 9 N. Y. 263. See Sheffield v. 
 Cooper. 21 App. Div. (M. Y.) 518. 
 
 10. Daly v. Amberg, 13 N. Y. 
 Supp. 379. aff'd 126 N. V/. 490. 27 N. 
 E. 1038. See, also. Moat v. Holbein, 
 2 Edw. Ch. 188; Sullivan v. Judah, 4 
 Paige, 444; Cape May R. Co. v. John- 
 son, 35 M. J. Eq. 422, 425. An in- 
 
 393
 
 §248 
 
 Violations and Punishment of. 
 
 it is no defense to proceedings to punish for contempt for violating 
 an injunction, that the injunction was granted on papers neither 
 making nor tending to make out a. sufficient case for injunction. 11 
 And the fact that an injunction is too broad in its terms, and 
 broader than the prayer of the bill, is not a sufficient excuse for 
 its violation. 12 In Kansas, if a defendant knowingly violates an 
 injunction order which is irregular in form and based on erroneous 
 though not void proceedings, he is liable to punishment for con- 
 tempt. 13 
 
 § 248. Violation though no service ; knowledge enough. — 
 Persons who have actual knowledge of the existence and effect of 
 an injunction order are bound by it, though it is not personally 
 served or is defectively served on them, and will be liable to 
 punishment for a violation of its terms. 14 So a party is bound to 
 obstain from violating an injunctional order directed to himself 
 from the time he knows of its issue although it may not yet have 
 
 junction, however improvidently 
 granted, is valid until it is vacated 
 by the court granting it or reversed 
 on appeal, and until such time a 
 party disobeying it may be punished 
 for contempt. Erie R. Co. v. Ram- 
 sey. 45 N. Y. 637. 
 
 11. Koehler v. Farmers' & Drov- 
 ers' Nat. Bank of Somers, 6 N. Y. 
 Supp. 470, 17 Civ. Pro. 307, aff'd 
 117 N. Y. 661, 22 N. E. 1134. 
 
 12. People v. Pendleton, 64 N. Y. 
 622; Richards v. West, 2 Green Ch. 
 456. 
 
 13. Gen. Stat. 1889, § 4342; State 
 ex rel. v. Pierce, 51 Kan. 241, 32 Pac. 
 924; Billard v. Erhart, 35 Kan. 616, 
 12 Pac. 42. Where a court has juris- 
 diction, an order granting an injunc- 
 tion, though it may be erroneous, is 
 not void, and its force is not im- 
 paired pending an appeal. Fleming 
 v. Patterson, 99 N. C. 404, 6 S. E. 
 396, per Merrimon, J.: *' The order 
 
 granting the injunction, though it 
 may have been erroneous, was not 
 void, and continued in force until it 
 should be dissolved, unless it should 
 be corrected by appeal to this court, 
 and such appeal would not have the 
 effect to dissolve it or impair its 
 force pending the appeal." Green v. 
 Griffin, 95 N. C. 50. See, also Cen- 
 tral Union Telephone Co. v. State, 
 110 Ind. 203, 10 N. E. 922, 12 N. E. 
 136. 
 
 14. United States. — Ex parte Len- 
 non, 64 Fed. 320, 12 C. C. A. 134, 22 
 U. S. App. 561. 
 
 California. — Golden Gate Hydraulic 
 Mining Co. v. Superior Court, 65 Cal. 
 187, 3 Pac. 628. 
 
 Florida. — Thebaut v. Canova, 11 
 Fla. 143. 
 
 Qeorgla. — Anderson v. Hall (Ga. 
 1907), 58 S. E. 43; Murphy v. Mar- 
 ker, 115 Ga. 77, 41 S. E. 585. 
 
 Illinois. — O'Brien v. People, 216 111. 
 
 394
 
 Violations and Punishment of. 
 
 §248 
 
 been served on him. 15 And though a vacation of an order might 
 have been had either by motion to dissolve or on a trial on the 
 merits one may be punished for contempt where he knowingly 
 disobeys the order. 16 And where an order of injunction forms part 
 of a decree rendered in regular course, upon issue joined by 
 answer, the parties to the suit are bound to take notice thereof, 
 without being served with a certified copy of the decree. 17 So it is 
 decided that one who has actual notice of an order for the imme- 
 diate issuance of an injunction and disobeys the terms of it as 
 ordered, is guilty of contempt, though the injunction has not been 
 served upon him, or issued or the order personally drawn up. 18 
 So in a recent case in Georgia it is decided that one against whom 
 an injunction has been granted is bound to obey the same as soon 
 as he is informed of the fact that the injunction has been granted 
 although he may not have been then served with a copy of the 
 writ. 19 And in New Hampshire it has been determined that a 
 person who knowingly violates an injunction before he has formal 
 notice of it and before the order or decree is extended upon the 
 record, is liable to arrest and to the same penalty as if a copy of 
 the writ of injunction had been read and delivered to him. 20 So 
 persons who participate in acts with knowledge that such acts are 
 
 354, 75 N. E. 108; Danville Bank & 
 T. Co. v. Parks, 88 I'l. 170. 
 
 Massachusetts. — See Winslow v. 
 Mayson, 113 Mass. 411. 
 
 Nebraska. — Miles v. State (Neb. 
 1905), 105 N. W. 301. 
 
 New Hampshire. — Fowler v. Beck- 
 man, 66 N. H. 424. 30 Atl. 1117. 
 
 New Jersey. — Haring v. Kauffman, 
 13 N. J. Eq. 397. 
 
 New York. — Koehler v. Farmers' & 
 Drovers' Nat. Bank of Somers, 6 N. 
 Y. Supp. 470, 53 Hun, 637, aff'd 117 
 N. Y. 661, 22 N. E. 1134; Aldinger 
 v. Pugh, 57 Hun, 181, 10" N. Y. 684, 
 aff'd 132 N. Y. 403. 30 N. E. 745; 
 Rochester, H. & L. R. Co. v. New 
 *ork, L. E. & W. R. Co., 48 Hun. 
 190; Ewmg v. Johnson, 34 How. 
 
 Prac. 202; Livingston v. Swift, 23 
 How. Prac. 1. 
 
 Tennessee. — Fowler v. Famsworth, 
 1 Swan, 1, 15 Am. Dec. 718. 
 
 Wisconsin. — Poertner v. Russel. 33 
 Wis. 193; Mead v. Norris, 21 Wis. 
 310. 
 
 15. Poertner v. Russel, 33 Wis. 
 193. 
 
 16. Miles v. 
 105 N. W. 301. 
 
 17. Hawkins \ 
 294. 26 N. E. 43. 
 
 18. Winslow v. Nayson, 113 Mass. 
 411. 
 
 19. Murphey v. Barker, 115 Ga. 
 77, 41 S. E. 585. 
 
 20. Fowler v. Beckman, 66 N. H. 
 424, 30 Atl. 1117. 
 
 State (Neb. 1905), 
 v. State, 126 Ind. 
 
 395
 
 § 248a Violations and Punishment of. 
 
 prohibited by an injunction order may be adjudged guilty of 
 contempt. 21 In order to bind a person by notice such notice must 
 proceed from a source entitled to credit and must inform the de- 
 fendant clearly and plainly from what act he must abstain. 22 
 
 § 248a. Same subject; application of rule. — An injunction 
 against a corporate body is binding upon all persons acting for the 
 corporation to whose knowledge the injunction comes; 23 and in 
 particular if they have received written notice of the injunction, 
 though not made parties. 24 So where it appears that the general 
 officers of a railroad company had notice of an injunction at the 
 time the work alleged to have been violative of the injunction was 
 done, the company may be adjudged guilty of contempt, though 
 strict service of the injunction order had not been made. 25 And in 
 a case in Ohio where an action was brought to enjoin the mis- 
 appropriation of money by the council it was decided that the 
 injunction being granted by a court of competent jurisdiction or 
 a judge thereof if any members of the council violated the injunc- 
 tion after notice thereof had been served upon them they were 
 liable to be punished for the same as for a contempt of the authority 
 of the court. 26 And where defendant had been enjoined from pro- 
 curing a divorce, and had notice, no matter how obtained, that 
 the injunction had been issued, he is liable for contempt for violat- 
 ing it to the same extent as if it had actually been served on him 
 in writing. 27 Notice by telegram may also be sufficient but in 
 
 21. People v. Marr, 88 App. Div. its contents, and afterwards, appel- 
 (N. Y.) 422, 84 N. Y. Supp. 965. lant delivered a deed of conveyance 
 
 22. York Mfg. Co. v. Oberdick, 11 of the property described in the 
 Pa. Dist. R. 616. order, it was held that appellant was 
 
 23. People v. Sturtevant, 9 N. Y. guilty of contempt, and was properly 
 263. fined $250 and committed to jail for 
 
 24. Toledo, etc., R. Co. v. Penn- six months. People v. Barnes, 7 N. 
 sylvania Co., 54 Fed. 746. Y. Supp. 802. 
 
 Where an order was entered 25. Rochester R. Co. v. New York 
 
 restraining certain officers and R. Co. 48 Hun, 190. 
 
 members, including appellant, from 26. Forsythe v. Winans, 44 Ohio 
 
 disposing of the property of their St. 277 7 N. E. 13. 
 
 corporation, and was served on the 27. Kempson v. Kempson, 61 N. 
 
 president in the presence of appel- J. Eq. 303, 48 Atl. 244. 
 lant, who had notice of the order and 
 
 390
 
 Violations and Punishment of. § 249 
 
 sending notice by telegram to a distant place of the issuing of an 
 injunction, instead of telegraphing directly to the parties enjoined, 
 it is better to telegraph to a responsible attorney or other agent, 
 asking him to give notice to the parties enjoined. 28 
 
 § 249. Excuse of violation. — A failure to obey an injunction 
 may be excused by ill health and poverty and the severity of the 
 weather, where a disposition to obey has been manifested : 29 but 
 the excuses must show the defendant's inability to do the act 
 required or the court will not accept them. 30 But though there 
 may be an irregularity in connection with the proceedings leading 
 to the issuance of an injunction this is no excuse for its violation. 31 
 And the failure of the person enjoined through carelessness to 
 inform his agent of the injunction will not excuse him if his agent 
 violates it. 32 And where the owner of a water power was re- 
 strained by injunction from so using the water in the stream as to 
 throw back water upon the wheels of the plaintiff's mill standing 
 in the same stream, it was held that he could not escape liability 
 for violation of the injunction by leasing the premises to other 
 parties and informing them that the injunction was in force at 
 the time, the lessees taking possession under the lease and there- 
 after violating the injunction. 33 Nor is it a defense to a proceed- 
 ing for violation of an injunction that the plaintiff had no cause 
 of action and could not recover in any event, 34 as the merits of the 
 
 28. Ex parte Langley, L. R. 13 Ch. A'eio York. — People v. Van Buren, 
 D. 110. 136 N. Y. 252, 32 N. E. 775; New 
 
 29. Scott v. Layng, 59 Mich. 43, York v. New York & S. I. F. Co... 64 
 26 N. W. 220, 791. N. Y. 622; Sullivan v. Judali. 4 
 
 30. Pennsylvania R. Co. v. Thomp- Paige, 444; Daly v. Amberg, 59 Hun, 
 eon, 49 N. J. Eq. 318, 24 Atl. 544; 624, 13 N. Y. Supp. 379. 
 Quacker.bush v. Van Riper, 2 Gr. Eq. Vermont. — Howe v. Willard, 40 Vt. 
 350; McClure v. Gulick, 2 Harr. 340; 654. 
 
 State v. Gulick, 2 Harr. 435. Compare Smith v. People, 2 Colo. 
 
 31. United States.— United States App. 99 29 Pac. 924. 
 
 v. Debs, 64 Fed. 724. 32. Mundy v. Lidgerwood M'f'g 
 
 California. — In re Fil Ki, 79 Cal. Co., 34 Fed. 541. See Poertner v. 
 
 684 21 Pac. 974. Russell. 33 Wis. 193. 
 
 Ioica. — First Congregational Church 33. Batterman v. Finn, 34 How. 
 
 v. Muscatine, 2 Iowa, 69. Prac. (N. Y.) 108. 
 
 Kansas. — State v. Prcice, 51 Kan. 34. Sheffield v. Cooper, 21 App. 
 
 241. 32 Pac. 924. Div. (N. Y.) 518. 
 
 397
 
 § 250 Violations and Punishment of. 
 
 case in connection with the issuance of the injunction will not be 
 considered by the court in determining the question of a con 
 tempt. 35 Again, it is no defense for a violation of an injunction 
 prohibiting the occupation of certain land, that the party violating 
 it was authorized by a vote of the town to occupy the land. 38 And 
 it is no defense that the offender did not intend, in what he did, to 
 contemn the authority of the court. 37 
 
 § 250. Same subject continued ; effect of dissolution. — The 
 fact that an injunction has been dissolved is held to furnish no 
 protection to a person for violating it while it remained in force. 38 
 But in a later case in New York in which an order granting a 
 temporary injunction restraining the constructing by an elevated 
 railroad of a stairway on a street was reversed the court declared 
 that, as such order should be reversed, an order to punish for con- 
 tempt in violating the injunction fell with it. 39 Again, it is no 
 defense that an order had been made vacating the injunction before 
 the alleged violation, where the court making the order had no 
 jurisdiction, the injunction having been granted by another court. 40 
 The court may, however, take into consideration the fact the in- 
 junction was erroneously granted and without sufficient equity to 
 sustain it in determining the extent of the punishment to be im- 
 posed for a violation thereof." Where an injunction forbids the 
 
 35. Drury v. Ewing, Fed. Cas. No. 6upp. 470; aff'd 117 N. Y. 661, 22 N. 
 4095, 1 Bond, 540; First Congrega- E. 1134. 
 
 tional Church v. Muscatine, 2 Iowa, A special surrogate has no 
 
 69; People v. Dwyre, 90 N. Y. 402; power, on an ex parte application, 
 
 People v. Spaulding, 2 Paige, 326. to vacate an injunction granted by a 
 
 36. Fowler v. Beckman, 66 N. H. county judge in an action brought 
 424, 30 Atl. 1117. in the Supreme Court; and where the 
 
 37. Thompson v. Pennsylvania R. person enjoined procures the special 
 Co., 48 N. J. Eq. 105, 25 Atl. 182. surrogate to make such order, and 
 
 38. Smith v. Reno, 6 How. Prac. then does what was forbidden by the 
 (N. Y.) 124. injunction, he is guilty of contempt. 
 
 39. Krone v. Kings County Elev. People ex rel. v. Van Buren (Sup.), 
 R. Co., 50 Hun (N. Y.), 431. 18 N. Y. Supp. 734, aff'd 136 N. Y. 
 
 40. Koehler v. Farmers' & Drov- 252. 32 N. E. 775. 
 
 ers' Nat. Bank of Somers, 6 N. Y. 41. Sullivan v. Judah, 4 Paige Ch. 
 
 398
 
 Violations and Punishment of § 250a 
 
 doing of certain acts, " except in extraordinary emergencies it 
 becomes unavoidable," in contempt proceedings for the violation 
 of the injunction, the burden is on the respondent to show that the 
 violations complained of were committed under pressure of the 
 emergencies contemplated by the terms of the injunction. 42 Again, 
 the violation of an injunction will not be excused by the fact that 
 the injunction as issued is broader in its scope than the prayer of 
 the complainant's bill. 43 
 
 § 250a. Same subject; effect of modification of injunction. — 
 Where an injunction as granted is subsequently modified by the 
 court so as to permit the doing of certain acts prohibited in the 
 original injunction, the latter injunction is dissolved and plaintiff 
 can not be punished for violation thereof. 44 So where defendants 
 were restrained by injunction from working or mining upon cer- 
 tain grouud in controversy until the final determination of the 
 action and subsequently the court granted an order providing that 
 upon the giviug of a certain bond the defendants " should be 
 allowed and permitted without interference by the plaintiffs, their 
 agents, successors, or employees to mine and operate " such ground, 
 which bond was given, it was decided that the defendants were 
 not guilty of contempt of court in entering upon the property and 
 ousting the plaintiffs therefrom, it being declared that the modify- 
 ing order had the effect of dissolving the injunction. 45 And in a 
 case in New York it is decided that where an injunction improperly 
 restrains certain acts of the defendant, and during its continuance 
 these acts are performed by the defendant in technical violation 
 of the injunction but subsequently the injunction is modified so as 
 to dispense with the clause improperly restraining such acts an 
 
 (N. Y.) 444; State v. Circuit Court New York v. New York & S. I. F. 
 
 for Green Lake Co., 98 Wis. 143, 73 Co., 64 N. Y. 622. Compare Freeman 
 
 N. W. 788. v. Deming, 4 Edw. Ch. (N. Y.) 598. 
 
 42. Thompson v. Pennsylvania R. 44. United States v. Price, 1 
 Co.. 38 N. J. Eq. 105, 21 Atl. 182. Alaska, 204; Fremont v. Merced Min. 
 
 43. Sickels v. Borden, Fed. Cas. Co.. 9 Cal. 18. 
 
 No. 12833, 4 Blatch. C. C. 14; Loven 45. United States v. Price, 1 
 
 v. People, 158 111. 159, 42 N. E. 82; Alaska, 204. 
 Richards v. West, 3 N. J. Eq. 456; 
 
 399
 
 § 251 Violations and Punishment of. 
 
 attachment for such violation of the injunction, applied for and 
 issued after the modification of the injunction, can not be sus- 
 tained.' 16 This decision was placed upon the general principle that 
 an injunction, which is but an order of the court, can have no more 
 force or extended operation after it is set aside or modified, than 
 a statute repealed or modified, in regard to acts previously done. 
 But in a case in Iowa it is decided that the violation of a. restrain- 
 ing order can not be justified in a contempt proceeding by showing 
 that at the time the order was violated a motion to modify the same 
 was pending. 47 
 
 § 251. What constitutes violation. — An injunction must be 
 obeyed in its spirit as well as its letter. The party enjoined must 
 not do the forbidden thing nor permit it to be done, nor effect it 
 by trick or evasion. In deciding whether there has been a breach 
 or not the objects for which the relief was granted must be con- 
 sidered. 48 A party restrained by injunction from doing a particu- 
 lar act will be considered as having violated an injunction where he 
 stands by and sees it violated by a partner at their common ex- 
 pense or for their common benefit. 49 Thus an injunction restrain- 
 ing one from keeping a liquor nuisance on his premises is violated 
 if one is kept there with his knowledge and assent. 50 And though 
 the damages resulting from a violation of an injunction are trivial 
 a person violating it may nevertheless be guilty of contempt. Thus 
 it was so held where a person violated an injunction pendente lite 
 
 46. Peck v. Yorks, 32 How. Prac. trict in which the action is brought, 
 (N. Y.) 408. and, if one so enjoined shall again be 
 
 47. Young v. Rothrock, 121 Iowa, concerned in the sale of liquor in the 
 588. 96 N. W. 1105. district, he shall be guilty of con- 
 
 48. Loder v. Arnold, 15. Jurist, tempt. Held, that one might be ad- 
 117. judged so guilty though the action in 
 
 49. Neale v. Osborne, 15 How. which the injunction was granted was 
 Prac. (N. Y.) 81. begun before the act took effect and 
 
 50. England v. Johnson, 66 Iowa, though the decree for an injunction 
 751, 53 N. W. 268. Acts 22d Gen. did not in terms provide that it 
 Assem., ch. 73, § 4, provides that an should operate throughout the dis- 
 injunction to restrain a liquor trict. McGlasson v. Johnson, 86 
 nuisance shall bind the person en- Iowa, 477, 53 N. W. 267. 
 
 joined throughout the judicial dis- 
 
 400
 
 Violations and Punishment of. 
 
 §251 
 
 restraining him from serving milk or cream to any customers of 
 the plaintiff. 31 An injunction against further proceedings in the 
 collection of an execution enjoins the enforcement of the judg- 
 ment itself. 52 And an injunction against taking possession under a 
 verdict obtained in ejectment has been held to be violated by pro- 
 curing an attachment for non-payment of the costs taxed in the 
 ejectment suit. 53 And an injunction against an action at law is 
 violated by the delivery of a declaration; 54 and by obtaining a 
 change of venue ; 55 and by service of notice of trial ; 56 but not by 
 issuing a precept for costs in such action if the injunction did not 
 prohibit the collection of costs. 57 Again, the dismissal of an en- 
 joined action and the subsequent bringing of another for the same 
 demand is a violation. 58 And where the construction of a street 
 railroad under a certain franchise is prohibited by an injunction 
 the one enjoined cannot avoid the effect of the injunction by a 
 transfer of the franchise to another after notice thereof but before 
 the writ is served upon him. 59 And an injunction against obstruct- 
 ing the passage of boats along a canal has been held to be violated 
 
 51. Mutual Milk & Cream Co. v. 
 Heldt, 123 App. Div. (N. Y.) 509, 
 108 N. Y. Supp. 565. 
 
 52. Campbell v. Tarbell, 55 Vt. 
 455, per Royce, C. J.: "The pur- 
 pose of the bill upon which the in- 
 junction was granted was to avoid 
 the judgment upon which the execu- 
 tion was issued; and unless the in- 
 junction is construed as enjoining the 
 enforcement of that judgment during 
 its pendency the obtaining of it was 
 an idle ceremony." See, also. Bullen 
 v. Ovey, 16 Ves. 141; Woodley v. 
 Boddington. 9 Simons, 214. In this 
 ease the writ of final execution was 
 in the sheriff's hands and the first 
 proclamation made before the injunc- 
 tion issued and the vice chancellor 
 said : " The sheriff who receives the 
 writ is to a certain extent the agent 
 or servant of the plaintiff at law; 
 for any intimation given by the 
 
 plaintiff to the sheriff not to go on 
 would be an indemnity to the sher- 
 iff, and he would be bound not to 
 proceed. Here no step was taken. 
 . . . A communication took place 
 between Boddington's- solicitor and 
 the sheriff, and the solicitor said he 
 would give no order. ... I can- 
 not but think that the conduct of 
 the solicitor was not proper, and that 
 this is a case of contempt." 
 
 53. Partington v. Booth, 3 Meriv. 
 148. 
 
 54. Mills v. Cobby, 1 Meriv. 3. 
 
 55. Pariente v. Bensusan, 12 Si- 
 mons, 522. 
 
 56. Clark v. Wood, 6 N. J. Eq. 
 458. 
 
 57. German Savings Bank v. Ha- 
 bel, 80 N. Y. 273. 
 
 58. In re Schwarz, 14 Fed. 787. 
 
 59. San Antonio v. Rische (Tex. 
 Civ. App.), 38 S. W. 388. 
 
 401 
 
 26
 
 § 252 Violations and Punishment of. 
 
 by the bringing of fifteen suits on account of such passage of 
 boats. 60 But it is not a violation of an injunction for defendant, 
 a voluntary association, to employ counsel to advise and defend it 
 in the injunction proceedings. 61 And where at a lawful meeting of 
 directors a new stock book was adopted, and an injunction was 
 obtained against the inspectors using it at an election of directors, 
 and the corporation law provided that if the right to vote at such 
 elections was challenged the inspectors should use the company 
 books, " if they can be had," it was held that as the election itself 
 was not enjoined and the new stock book was not used there wa3 
 no violation of the injunction in proceeding to an election and 
 using no stock book at all, as there was no order compelling the 
 use of the old and the new one was, by reason of the injunction, as 
 if it could not be had. 61a And when an injunction restraining the 
 operation of a plant does not prohibit such operation entirely nor 
 prohibit any express acts' it is decided that a defendant who has 
 made improvements in the plant so as to obviate most of the defects 
 complained of should not be adjudged guilty of contempt in con- 
 tinuing to operate the plant although the improvements are not 
 beyond criticism as under such circumstances continuing the busi- 
 ness under the improved conditions is not a wilful disobedience 
 of the court's command. 62 One who would charge a contempt 
 should aver directly that the particular acts constituting contempt 
 were done by the party charged therewith. 63 
 
 §252. Same subject; injunction to protect right of way. 
 
 60. Grand Junction Canal Co. v. 61a. Cassidy v. Manning, 138 N. 
 Dimes. 17 Sim. 38. A defendant who Y. 557, 34 N. E. 388. 
 
 interferes with the possession of 62. Saal v. South Brooklyn Ry. 
 
 plaintiff's tenant by driving his cattle Co., 122 App. Div. (N. Y.) 364, 
 
 from the land, and offering to lease 106 N. Y. Supp. 996. 
 to another, when a decree prohibits 63. Boston & Montana C. C. & S. 
 
 him or his attorneys from entering M. Co. v. Montana Ore P. Co., 24 
 
 upon the land, or interfering with Mont. 117, 60 Pac. 807, wherein it 
 
 plaintiffs or their tenants in the pos- is said: "Argumentative affidavits, 
 
 session, control, or ownership thereof, in which the affiant endeavors to 
 
 is guilty of contempt of court. Ex reason out a charge of contempt by 
 
 parte Vance, 88 Cal. 281, 26 Pac. 118. exclusion, will not serve as founda- 
 
 61. Beneville v. Whalen, 2 N. Y. tion for an inquiry whicn involves the 
 Supp. 20. liberty of persons." 
 
 402
 
 Violations and Punishment of. 
 
 §253 
 
 An injunction to prevent an interference with a mere right of way 
 is not to be so construed as to be injurious or oppressive to the 
 owner of the fee simple, and such owner is not chargeable with a 
 violation of the injunction so long as he puts the soil to its legiti- 
 mate uses and does not actually impair the reasonable exercise of 
 the right of way. 64 
 
 §253. Same subject; changed situation. — An injunction 
 against the collection of a judgment is not violated by the taking 
 of such proceedings as are necessary to keep the judgment alive^ 
 as for instance the entry of an order of revivor ; for such a proceed- 
 ing is not an attempt to collect the judgment. 65 An order of in- 
 
 64. Bosley v. Susquehanna Canal, 
 3 Bland. Ch. (Md.) 63, per Bland, 
 Ch.. " How far these several rights 
 may be deemed reconcilable with each 
 other, it will be time enough to de- 
 termine at the final hearing. Chi- 
 chester v. Lethbridge, Willis' Rep. 72. 
 . . . I deem it sufficient to ob- 
 serve that where there are as in this 
 instance several distinct, but inti- 
 mately associated rights, such as a 
 right of soil alleged to be subject to 
 several kinds of right of way, which 
 from the nature of things, must in 
 some modes of exercising them be 
 brought into apparent collision with 
 each other; Ball v. Herbert, 3 T. R. 
 253; and an injunction has been 
 granted for the preservation of one 
 of them, the court will not consider 
 any act to be a violation of such in- 
 junction, that is a fair exercise of 
 another of the associated rights, and 
 which leaves the right, under the pro- 
 tection of the injunction, as large a 
 scope and as free a range as it might 
 have had when the injunction was 
 served and before the act complained 
 of was done. The validity and ex- 
 tent of the right, which by the in- 
 junction has been temporarily taken 
 
 under the special care of the court, 
 and of the other rights with which it 
 stands connected, are matters which 
 can only be determined with propri- 
 ety at the final hearing; until then, 
 or so long as the injunction is con- 
 tinued they must be kept, as far as 
 practicable, within their respective 
 modes and' lines of use, so as not to 
 be allowed, in any manner, to thwart 
 or obstruct that claimed by the plain- 
 tiff. In this case it could not be said 
 that the cuttings complained of were 
 not legitimate exercises of the rights 
 of this body politic as holders of the 
 fee simple in the land and as owners 
 of the profits of this highway or 
 canal, which they are bound to repair 
 and keep in a proper state for navi- 
 gation, unless it were shown that the 
 plaintiff's right of way in that con- 
 dition in which it was found by the 
 injunction had been thereby in some 
 form or other substantially impaired. 
 And that, I am of opinion, has 
 neither been admitted Dy the answers 
 to the petition on which the attach- 
 ments were awarded, nor shown by the 
 affidavits which have been introduced 
 and read by consent." 
 
 65. The State recovered a judg- 
 
 403
 
 § 254 
 
 Violations and Punishment of. 
 
 junction prohibiting any disturbance of the status of property 
 pending litigation concerning it, does not prevent any party having 
 an interest in it from doing what is necessary to preserve it. 66 
 So when subsequent courts have so changed the situation of the 
 property for the maintenance of the status of which an injunction 
 has been granted as to render a literal compliance with it imprac- 
 ticable, a reasonable conformity with the spirit of it is all that can 
 be insisted on. 67 
 
 §254. Same subject; illustrations. — A mining company was 
 proceeded against for a contempt in violating an injunction against 
 discharging debris to the injury of lands below. The company 
 contended that whereas before it conducted its operations by 
 hydraulic mining it now conducted them by drift mining, which 
 was not within the terms of the injunction. It was held, that as 
 the injury resulting was only less in degree, and as the acts done 
 were clearly within the terms of the decree, a fine of $1,500 should 
 
 ment on a forfeited recognizance in 
 H. County. Subsequently an execu- 
 tion was issued to the sheriff of R. 
 county. The judgment debtor ob- 
 tanied an injunction in the District 
 Court of R. county against the sher- 
 iff, perpetually enjoining him from 
 levying the execution, and also en- 
 joining the sheriff and board, of 
 county commissioners of H. county 
 from attempting to collect the judg- 
 ment by virtue of any process issued 
 thereon. The sheriff and board of 
 commissioners took the case to the 
 Supreme Court, and. while it was 
 pending there, the judgment debtor 
 died, but the cases in R. county and 
 the Supreme Court were revived, with 
 consent of all the parties, in the name 
 of his personal representative and 
 sole heir. Within the year prescribed 
 by the statute the District Court of 
 H. county, upon the application of 
 the State, entered an order of revivor 
 on the judgment. Held, that this or- 
 
 der was not error, being necessary to 
 keep the judgment from becoming dor- 
 mant, and not being an attempt to 
 collect the same, or a violation of the 
 injunction. Raff v. State, 48 Kan. 
 44, 28 Pac. 986. See, also, Tibbetts 
 v. Deck, 41 Kan. 492, 21 Pac. 586; 
 Myers v. Kothman. 29 Kan. 19; 
 Green v. McMurtry, 20 Kan. 189. 
 
 66. Behrens v. McKenzie, 23 Iowa, 
 333. In a suit concerning the cus- 
 tody and possession of a piano, " de- 
 fendant and all other persons " were 
 enjoined from moving it from defend- 
 ant's house, where it was. Defendant 
 let his house, and left the State, and 
 plaintiff removed the piano to his 
 own house for safe-keeping. Held, 
 that plaintiff would not be deemed in 
 contempt. Mowrer v. State, 107 Ind. 
 539, 8 N. E. 561. See Silver Peak 
 Mines v. Hanchett, 93 Fed. 76. 
 
 67. Robertson v. Bingley, 1 Mc- 
 Cord, Ch. 333. 
 
 404
 
 Violations and Punishment of. § 254 
 
 be imposed as a punishment for the contempt. 68 A county collector 
 was enjoined from paying, and a county clerk from receiving, any 
 salary claimed under an act alleged to be unconstitutional. There- 
 upon the board of freeholders passed a resolution that the clerk 
 should be paid a sum the precise equivalent of his claim under the 
 act. It was held, an evasion, and therefore a violation of the in- 
 junction. 69 After service of an order enjoining defendant from 
 disposing of any of her property not exempt from execution, de- 
 fendant procured a third person to take a mortgage on some of the 
 property in place of an existing mortgage. The new mortgage was 
 for a less amount than the former mortgage. It was held that 
 defendant was not guilty of a contempt in disobeying the injunc- 
 tion, since her interest in the mortgaged property was not lessened. 70 
 A judgment debtor, before service on him of an injunction order 
 in supplementary proceedings forbidding any transfer of his 
 property, assigned all of his interest in an insurance policy on the 
 life of a third person, deceased, to his wife. After service of such 
 order he collected the insurance money, and paid the same over to 
 his wife. It was held no violation of the injunction order, the title 
 to the money not being in the debtor. 71 An injunction prohibiting 
 defendant, in an action to enforce a judgment, from maintaining 
 that the same " was not duly given, made, or entered by a court 
 having competent jurisdiction thereof, is not valid, and does not 
 still stand of record in said court, and is not in full force against 
 said defendant," is not violated by a general denial of an allegation 
 that such judgment was recovered in a named court, the effect of 
 the denial being merely to compel plaintiff to produce legal evi- 
 dence of the judgment; but it is violated by a general denial of 
 allegations that the judgment, which was against a non-resident, 
 was duly entered, and that it still stood of record in the District 
 Court. 72 
 
 68. Re North Bloomfield Gravel 70. Duffus v. Cole, 15 N. Y. Supp. 
 Mining Co., 27 Fed. 795. See, also, 370. 
 
 Cianciminos, etc., Co. v. Ciancimino, 71. Rhodes v. Linderman, 17 N. Y. 
 
 17 N. Y. Supp. 125. Supp. 628. 
 
 69. Gibbs v. Morgan, 39 N. J. Eq. 72. Wakelee v. Davis, 50 Fed. 522. 
 79. 
 
 405
 
 §§ 255, 256 Violations and Punishment of. 
 
 § 254a. Where injunction conditional. — Where it is ordered 
 that an injunction shall issue upon the filing of the bill such order 
 is conditional and there is no injunction and can be no contempt 
 until the bill is filed. 73 So where an injunction has been granted 
 but is not to go into effect until the bond has been executed, acta 
 done between the time of the granting of the injunction and the 
 execution of the bond, do not constitute a breach of the injunction, 
 placing the defendant in contempt of court, although such acts 
 would be violative of the writ if it had become fully operative. 74 
 
 § 255. Violation of patent injunctions. — Where an injunction 
 is issued against selling certain articles in infringement upon 
 plaintiff's patent, it is violated by the selling of the articles beyond 
 the territorial jurisdiction of the court, whether they are sent 
 within its jurisdiction or not. 75 It is a violation of an injunction 
 to use a prohibited trade-mark and name for goods, though they 
 are made, sold, and shipped at defendant's place of business in 
 another State, of which both plaintiff and defendant are resident 
 corporations, and to which defendant, who had been doing business 
 in the State wherein the injunction is pending, has removed since 
 it was granted. 76 Where a patentee has enjoined another from 
 making and selling his patented preparation, he has the right to 
 send his agent to the party enjoined to procure the preparation 
 from him in order to ascertain if the injunction is being violated. 77 
 Carelessness of one against whom an injunction has been obtained 
 restraining him from using a patented device, in omitting to notify 
 his agent of such injunction, will render him liable for contempt, 
 for sales of the patented articles by such agent after the injunction 
 has been obtained. 78 
 
 § 256. Violation by parties; generally. — One against whom an 
 injunction has been issued should not only abstain from personally 
 
 7.3. Winslow v. Nayson, 113 Mass. 75. Macaulay v. White, etc., Co., 9 
 
 411. Fed. 698. 
 
 74. Ex parte Miller, 129 Ala. 130, 76. Prince M'f'g Co. v. Prince's 
 
 30 So. 611. 87 Am. St. Rep. 49. Metallic Paint Co.. 2 "N. Y. Supp. 682. 
 
 State v. Irwin. 30 W. Va. 77. Knowles v. PecK, 42 Conn. 386. 
 
 404, 4 S. E. 413. 78. Mundy v. Lidgerwood M'f'g 
 
 Co., 34 Fed. 541. 
 
 406
 
 Violations and Punishment of. § 256a 
 
 violating it but should also -endeavor to prevent his agents or em- 
 ployees from violating it. 79 A party bound to obey an injunction 
 may be guilty of violation thereof as well by aiding, abetting and 
 countenancing others in violating it as by doing it directly. 80 If 
 it appears that a party has stood by and allowed a process over 
 which he had control to be executed after he has himself been 
 served with an injunction restraining it, he is guilty of disobedi- 
 ence to the order, and may be punished as for a contempt. 81 So 
 where a plaintiff in attachment was enjoined from selling attached 
 property and the levying officer in his presence sold a part of the 
 property, he standing silently by, it was held that he violated the 
 injunction. 82 This rule was also applied under the following cir- 
 cumstances : A defendant being restrained by injunction from 
 disposing of certain property, left it in charge of the clerks at his 
 store, mixed indiscriminately with other property, and having in- 
 formed the clerks of the existence of the injunction, left the store 
 without any effort to separate and identify the property, and did 
 not interfere personally in the management of the business for 
 some time afterwards. During his absence his clerks sold some of 
 the property covered by the injunction and it was held that the 
 defendant had by connivance violated the injunction and was in 
 contempt. 83 
 
 § 256a. Violation by complainant. — While a complainant by 
 doing the acts which an injunction prohibits the defendant from 
 doing may not subject himself to the summary proceeding for 
 contempt yet he should not bo permitted to do such acts with 
 impunity. So it is said to be a gross abuse of the process of the 
 court for him after having by means of the injunction tied the 
 hands of his adversary to disregard his own injunction. So this 
 principle was applied where an injunction was granted restraining 
 defendant from mining or disposing of any ore pending the suit 
 
 79. Poertner v. Russel, 33 Wis. v. Conover, 5 Abb. Prac. (N. Y.) 
 193. 244. 
 
 80. Mayor of New York v. New 82. Martin v. Blood, 21 Ga. 127. 
 York & S. I. F. Co., 64 N. Y. 622. 83. Field v. Chapman, 13 Abb. 
 
 81. Mayor of City of New York Prac. (N. Y.) 321. 
 
 407
 
 § 256b Violations and Punishment of. 
 
 and complainant subsequently ejected defendant and took posses- 
 sion of the mine. The court in this case ordered the complainant 
 to restore the property to defendant and to restrain with any fur- 
 ther interference with the possession thereof during the pendency 
 of the suit. 84 
 
 § 256b. Violation by one not a party. — The weight of authority 
 supports the rule that it is not essential, in order that one may be 
 adjudged guilty of contempt for violation of an injunction that he 
 should be a party to the suit in which it was issued or be actually 
 served with a copy of it. Actual notice only is necessary. 85 So 
 in a case in Oregon it is said : " While there is some conflict of 
 authority upon the question of the liability of a person for violat- 
 ing the process of a court, the weight and better reason seem to 
 support the rule that a stranger to an injunction, who has notice 
 or knowledge of its terms, is bound thereby, and may be punished 
 for contempt for violating its provisions." 86 And it is also said 
 in a case in the Circuit Court of Appeals that any person who, 
 having notice that such an order has been made against a party 
 to the suit, aids and assists that party in its violation is as much 
 amenable to proceedings for contempt as if he were a party named 
 in the record. 87 And where a decree enjoins the defendants " their 
 servants, aides and abettors " one who knowingly aids and abets 
 in the violation of such decree is liable for his violation of the 
 decree though he is not a party to the bill or personally named 
 therein. 88 But in a case in Louisiana it is held that one not a party 
 to a suit in which an injunction has issued, and to whom such 
 injunction is not directed cannot be held in contempt or punished 
 
 84. Vanzandt v. Argentine Min. 85, 49 Pac. 852. Per Moore, J., eit- 
 Co., 48 Fed. 770. ing Rapalje on Contempt, par. 47; 
 
 85. In re Lennon, 166 U. S. 554. Ewing v. Johnson, 34 How. Prac. (N. 
 17 Sup. Ct. 658, 41 L. Ed. 1110; Y.) 202; Waffle v. Vanderheyden. 8 
 Chisholm v. Caines, 121 Fed. 397; Ex Paige (N. Y.), 45; United States v. 
 p. Lennon, 64 Fed. 320, 12 C. C. Debs. 64 Fed. 724. 
 
 A. 134; Titusville Iron Co. v. Quinn, 87. Ex parte Lennon, 64 Fed. 320, 
 
 13 Pa. Dist. Rep. 416; York Mfg. 12 C. C. A. 134. Per Severens, J. 
 
 Co. v. Oberdick, 11 Pa. Dist. R. 616. 88. Fowler v. Beckman, 66 N. H. 
 
 86. State v. Lavery, 31 Oreg. 77, 424, 30 Atl. 1117. 
 
 408
 
 Violations and Punishment of. § 257 
 
 for a violation of the writ although the act prohibited be illegal 
 in itself. And it was also held in this case that a party punished 
 by imprisonment under such circumstances is illegally condemned 
 and has a right of action against those at whose instance and for 
 whose benefit the order of imprisonment was made and obtained. 89 
 And in an early case in New York it is held that an injunction 
 order can only go against a party to the action, and that one not a 
 party can not be held in contempt. 90 Acts done, however, by 
 strangers without the privity or consent of a party do not make him 
 guilty of contempt. 91 
 
 § 257. Violation by agents and servants. — The employees of 
 a corporation can be punished for violating an injunction without 
 being made parties to the injunction suit, provided they receive 
 notice of it. 92 It is no excuse for disobedience of an injunction by 
 an agent of defendant, that it had not been served on defendant 
 himself, where it was intended to restrain his agents and servants 
 as well as himself, and another agent who was served with the 
 same order by leaving with him a copy of it for defendant, but 
 who immediately threw it away, is chargeable with knowledge of 
 its import, and his subsequent violation of it is a contempt ; and 
 the fact that another agent on whom the order was served did not 
 understand it, though it mitigates his offense in violating it, does 
 not entirely excuse him, as it was his duty to have it explained 
 to him. 93 One who with full knowledge that an injunction has 
 been granted, and of its contents and service on a co-defendant, 
 violates the direction thereof while acting as the agent, servant or 
 assistant of the defendant so served, is guilty of a contempt of 
 court. 94 But where an employee of a company exercises the 
 
 89 Barthe v. Larquie, 42 La. Ann. E. 1038. See, also, Abell v. New 
 
 131 7 So. 80. York > etc ' R - Co ' 18 W - Di S- 554 < 
 
 90. Watson v. Fuller, 9 How. aff'd 100 N. Y. 634; Koehler v. Farm- 
 
 Prac (N Y ) 425. er8 ' an< * Drovers' Nat. Bank of Sora- 
 
 91 Stock v Township of Jeffer- ers, 6 N. Y. Supp. 470, aff'd 117 N. 
 son, 132 Mich. 96, 92 N. W. 769. Y. 661, 22 N. E. 1134. 
 
 92 Toledo °tc R. Co. v. Penn- 94. Aldinger v. Pugh, 57 Hun, 181, 
 svlvania Co., M Fed. 746. 10 N. Y. S. 684, aff'd 132 N. Y. 403, 
 
 93. Daly v. Amberg, 13 N. Y. 30 N. E. 745. 
 Supp. 379, aff'd 126 N. Y. 490, 27 N. 
 
 409
 
 § 258 Violations and Punishment of. 
 
 authority with which he is clothed by the company, in good faith, 
 with an intention and purpose, to the best of his ability to enforce 
 obedience to an injunction, he will not be personally liable for 
 contempt. 95 
 
 §258. Same subject; violation by attorneys. — An injunction 
 may be violated by aiding and abetting others, as well as by 
 violating it directly, and any scheme, however skillfully devised, 
 to thwart its orders, will be treated by the court as a violation. 96 
 Thus an attorney may be guilty of a violation in advising his 
 clients to commit one, as injunctions ordinarily restrain not only 
 the defendant but also his attorneys, agents and servants. 97 And 
 attorneys who advises the violation of an injunction are liable for 
 contempt even though the order has not been served upon them. 98 
 In a case in New York it is said in this connection : " Attorneys 
 who deliberately advise a client to resist or violate an order of the 
 court should be visited with more severe punishment than the 
 client. If counsel are to be permitted to advise their clients to 
 do acts in plain violation of an injunction order duly issued, it 
 will be difficult to preserve the dignity of the court or to secure the 
 orderly administration of justice." " An attorney advising and 
 acting for a stranger to an injunction cannot ordinarily be guilty 
 of violating it; 1 and where an attorney has two clients, one of 
 
 95. Pennsylvania Railroad Co. v. receiver; and that restrained 'Hiler 
 Thompson, 49 N. J. Eq. 318, 24 Atl. and his servants, agents and attor- 
 544 neys.' Did Randall violate that or- 
 
 96. People v. Pendleton, 64 N. Y. der? I cannot perceive upon the un- 
 622, 624. disputed facts that he did. He may 
 
 97. Ex parte Vance, 88 Cal. 281, have been sharp and unscrupulous, 
 26 Pac. 118. See, also, Watson v. he may have taken advantage of the 
 Citizens' Savings Bank, 5 S. C. 159. relators and their attorney, but did 
 
 98. Stolts v. Tuska, 82 App. Div. he violate the order? That is the 
 (N. Y.) 81, 81 N. Y. Supp. 638. sole question. In procuring this fund 
 
 99. Stolts v. Tuska, 82 App. Div. from the chamberlain he did not act 
 (N. Y.) 81, 85, 81 N. Y. Supp. 638. for Hiler; he acted for the trustee. 
 Per Laughlin, J. The fund did not belong to Hiler. 
 
 1. People v. Randall, 73 N. Y. 416, He had made an absolute transfer of 
 
 422, per Earl, J.: "The only re- it to Haight, and in January. 1873, 
 
 straining order remaining was that he had no interest whatever in it. 
 
 contained in the order appointing the The fund was not large enough to 
 
 410
 
 Violations and Punishment of. 
 
 §250 
 
 whom is enjoined and the other who is in an independent position 
 and claiming different rights is not enjoined, the attorney cannot 
 ordinarily be charged with a violation of the injunction in advis- 
 ing and acting for the one not enjoined. 2 But an attorney may 
 be chargeable with a violation where a client having the legal title 
 to property is enjoined from transferring it, and he co-operates 
 with another client having an equitable interest in the same prop- 
 erty in effecting a transfer of the property. 3 
 
 § 259. Violation excused. — Where a person has been enjoined 
 for non-compliance with statutory requirements, it is not a viola- 
 
 pay the debts which the trustee was 
 directed to pay out of it. That as- 
 signment may have been, and prob- 
 ably was, void as to Hiler's creditor's 
 who did not assent to it. Goodrich 
 v. Downs, 6 Hill, 438. They could 
 have assailed it and set it aside, and 
 reached the property, but it was 
 valid as between the parties thereto 
 and as to all creditors who assented 
 to it. Hiler could not dispute its 
 validity. It divested him of the prop- 
 erty assigned as completely as if it 
 were valid against the whole world. 
 He could not revoke or annul the as- 
 signment or do any ac tto impair or 
 affect the title of the assignee. This 
 was not, therefore, his property; and 
 Randall in procuring its payment to 
 the trustee, did not act as Hiler's 
 agent or attorney or interfere with 
 his property. There was no restraint 
 upon the chamberlain or upon him 
 as attorney and agent of the trustee. 
 Hiler, when he gave the order on the 
 chamberlain, did not interfere with 
 his own property, but simply did an 
 act not absolutely essential, but 
 which aided the trustee in getting 
 possession of property which belonged 
 to him. It may be that the transfer 
 of the trust from Haight to Dusen- 
 bury was invalid. It certainly was 
 
 invalid unless all the creditors inter- 
 ested in it assented to the transfer. 
 If all persons interested in the trust 
 assented, it certainly was valid. If 
 they were all satisfied, no one else 
 could question it. If, however, the 
 transfer was invalid, the title re- 
 mained in Haight and was still out 
 of Hiler. But for another reason 
 Randall was not guilty of violating 
 either of these injunction orders. The 
 one in terms operated only upon the 
 chamberlain, and the other only upon 
 Hiler, his servants, agents and at- 
 torneys. Neither of these orders re- 
 strained Dusenbury or his attorney. 
 Dusenbury was not a party to the ac- 
 tion or proceeding in which the or- 
 ders were made. He did not acquire 
 his rights pendente lite. They were 
 antecedent to the supplementary pro- 
 ceedings. He was an entire stranger 
 to the orders, and hence was in no 
 way affected by or bound to obey 
 them, and Randall as his attorney 
 was in the same position. 1 Barb 
 Ch. Pr., 634; Batterman v. Finn, 32 
 How. Pr. 501." 
 
 2. Slater v. Merritt, 75 N. Y. 268. 
 
 3. Wilcox Silver-Plate Co. v. 
 Schimmel, 59 Mich. 524, 26 N. W. 
 692. See, also Wimpy v. Phinizy, 68 
 Ga. 188. 
 
 411
 
 §260 
 
 Violations and Punishment of. 
 
 tion of the injunction to do the act enjoined in conformity with 
 such requirements/ The party enjoined may repel the charge of 
 violation by showing that the injury complained of results from 
 other causes. 5 
 
 § 260. Obeying injunction so far as clear; changed situation. 
 
 — The party enjoined must obey the injunction in so far as it is 
 plain and specific, but if it is in part so vague and indefinite as 
 to admit of no certain interpretation, the courts will not hold him 
 
 4. A resolution of the county board 
 authorizing a town to borrow money 
 for the construction of a bridge was 
 declared invalid for non-conformity 
 of the proceedings with Laws 1875, 
 ch. 482, empowering the board to pass 
 euch resolution, and the town offi- 
 cers were enjoined from performance 
 of the bridge contract, which they had 
 let in pursuance of such resolution. 
 Afterwards a second proceeding was 
 had, in which all the statutory re- 
 quirements were observed. Held, 
 that the town officers were not guilty 
 of contempt in procuring valid au- 
 thority for executing the contract in 
 question, and in entering upon the 
 performance thereof. Barker v. Town 
 of Oswegatchie (Sup.), 16 N. Y. 
 Supp. 732. 
 
 5. In proceedings for contempt for 
 the alleged violation of a decree en- 
 joining defendants from discharging 
 into a certain stream any of the tail- 
 ings, debris, or refuse matter from 
 certain mines, complainant's wit- 
 nesses testified that on a certain day 
 defendants were conducting hydraulic 
 mining operations; that the water 
 used ran into a settling pool, and 
 thence through a \tunnel into the 
 stream; that the water flowing into 
 the settling pool was laden with de- 
 bris; that the water in the tunnel, 
 about 30 or 40 feet from its mouth 
 
 and two miles from the mines, was 
 muddy; that witnesses heard large 
 stones rolling along the bottom of 
 the tunnel in the water. Defendants' 
 evidence showed that all the debris 
 from its mines was run into the set- 
 tling pool, where the coarse material 
 was all deposited, the pool having a 
 dam which was kept higher than the 
 water in the pool, and only the water 
 freed from the debris flowed into the 
 tunnel. It was not shown that the 
 water flowing out of the settling pool 
 was ever discolored, and it appeared 
 that sand, gravel, rocks and debris 
 would find their way into the tunnel, 
 irrespective of defendant's mining op- 
 erations, from other sources. Held, 
 that defendant was not guilty. Wood- 
 ruff v. North Bloomfield Gravel Min. 
 Co., 45 Fed. 129. In Dawson v. 
 Paver, 5 Hare, 415, 424. after an in- 
 junction had been granted restrain- 
 ing the defendant from permit- 
 ting a certain injurious effect to 
 be produced by a given cause, 
 but not otherwise restraining any 
 definite act, the apprehended in- 
 jury took place, but the defendant 
 denied that it arose from the alleged 
 cause; the court refused to treat the 
 defendant as contumacious until it 
 should have been determined by a ver- 
 dict at law that the injury was pro- 
 duced by the assigned cause. 
 
 412
 
 Violations and Punishment of. 
 
 §261 
 
 to be in contempt for disregarding that part of it. 6 As a violation 
 of an injunction renders the party enjoined liable to both loss of 
 property and liberty, it should be so clear and certain in its terms 
 that he may readily know what he can and cannot do under its 
 requirements. 7 And an injunction restraining a person from a 
 specific interference with property in issue is not to be so construed 
 as to prevent him from exercising his subsequently accruing rights 
 in respect to that property, when a wholly different situation has 
 supervened. 8 
 
 § 261. Violation often determined by scope of terms The 
 
 question whether or not there has been a breach of an injunction 
 must often turn upon the scope of its terms. Thus an injunction 
 decree may be so general in its terms as to apply to all who may 
 occupy or use certain premises; or it may be so particular in its 
 terms as to apply only to certain persons who are named. If an 
 
 6. The findings on which an in- 
 junction was based recited that de- 
 fendants carried on the business of 
 extracting fish oil and making fish 
 pumice, and also the business of 
 making phosphate manures; that 
 stenches arose from and during the 
 mixing of materials to make phos- 
 phate manures; that prior to the 
 time when phosphate manures began 
 to be manufactured at said establish- 
 ment the business of extracting fish 
 oil and making fish pumice, though 
 producing disagreeable smells, occa- 
 sioned no nuisance. The injunc- 
 tion, after restraining the mixing of 
 the acids and materials for making 
 phosphate manures between certain 
 dates, except as by law provided, 
 added: "Nor shall said business be 
 so carried on ... as to produce 
 any noxious or offensive odors con- 
 stituting a nuisance " at any time. 
 Held, that, if defendants did not con- 
 tinue the making of phosphate ma- 
 nures, they were not guilty of con- 
 
 tempt, as the injunction was either 
 against the making of phosphate ma- 
 nures alone, or was too indefinite 
 to be the foundation of proceedings 
 in contempt. Baldwin v. Miles, 58 
 Conn. 496, 20 Atl. 618. 
 
 7. Rogers M'f'g Co. v. Rogers, 38 
 Conn. 125, where it was well re- 
 marked that "No respondent is to be 
 entrapped into a contempt by vague 
 or general orders." 
 
 8. A director of a mining corpora- 
 tion which was enjoined from dispos- 
 ing of the ores to any other persons, 
 and from interfering in any manner 
 with the product of the mines, would 
 not be deemed guilty of contempt 
 where it appeared that after service 
 of the injunction on the corporation 
 he resigned his office, and sued it 
 upon a bona fide indebtedness due 
 him. and caused a sale of its prop- 
 erty in satisfaction of the judgment 
 obtained. Mexican Ore Co. v. Mexi- 
 can Guadalupe Min. Co., 47 Fed. 351. 
 
 413
 
 §261 
 
 Violations and .Punishment of. 
 
 injunction is not directed to a person he is not necessarily bound 
 to obey it whatever his knowledge of it, and the scope of an in- 
 junction should not ordinarily be extended by implication. 9 An 
 
 9. Buhlraan v. Humphrey, 86 Iowa, 
 597, 53 N. W. 318, per Kinne, J.: 
 The real point of contention in this 
 case is, is a decree which enjoins 
 certain parties, naming them, from 
 keeping a liquor nuisance in certain 
 described premises, binding upon a 
 subsequent purchaser of the prem- 
 ises or his lessees? It is a general 
 rule of law that ' the obligations of 
 an injunction will not usually be ex- 
 tended to persons who are not named 
 in the writ, and they will not be li- 
 able for a breach of a mandate which 
 is not directed to them.' Barthe v. 
 Larquie, 42 La. Ann. 131, 7 So. 80. 
 Plaintiff insists that the case of Sil- 
 vers v. Traverse, 82 Iowa. 52, 47 N. 
 W. 888, is decisive of the question 
 here presented. That was a case 
 wherein the decree enjoined and re- 
 strained 'all persons from using or 
 occupying the premises for unlawful 
 keeping or traffic in intoxicating li- 
 quors,' and the question arose there 
 whether a lessee of the defendant in 
 the injunction proceeding was bound 
 by the decree, he not having been a 
 party to the action. It was held that 
 he was concluded by the decree. In 
 that case, by the very terms of the 
 decree, it applied to every one who 
 should thus illegally use the prem- 
 ises. Not so in the case at bar, 
 where, by the express wording of the 
 decree, it is limited in its operation 
 and effect to the parties therein 
 named. By no reasonable rule of 
 construction can such a decree be 
 said to run against or attach to the 
 property in the hands of a purchaser 
 or his lessees. Code, § 1543, pro- 
 vides that 'any person violating 
 
 the terms of any injunction ' to abate 
 the nuisance, etc., shall be punished 
 for contempt. Clearly, that provi- 
 sion must mean that in order to be 
 guilty of a contempt the violator 
 must be one who is within the terms 
 of the decree. To our minds it is im- 
 material whether defendants in fact 
 knew of the injunction or not. It 
 was not directed against them; it did 
 not attach to the property as against 
 them; it simply by its terms enjoined 
 the defendants in the injunction suit 
 from doing or permitting certain 
 things to be done. An injunction is 
 an extraordinary remedy, and its 
 force and legal effect should not be 
 extended by implication." The Na- 
 tional Trotting Association, an or- 
 ganization composed in part of driv- 
 ing park and track associations, and 
 organized for the promotion of trot- 
 ting interests, was enjoined from in- 
 vestigating a charge of fraud then 
 pending before a committee of the as- 
 sociation known as the " Board of 
 Review," or from passing any order 
 of suspension or expulsion in the 
 case, or from taking any further ac- 
 tion in respect to said charge. Held, 
 in proceedings for contempt, that the 
 Congress of the National Trotting 
 Association, composed of the owners 
 and representatives of each local race 
 course within this association, being 
 a different organization, and created 
 for other purposes, could suspend the 
 plaintiff from all privileges on the 
 courses in membership with the Na- 
 tional Trotting Association until the 
 injunction was dissolved and the 
 charge of fraud legally investigated 
 by the board of review. Standard 
 
 414
 
 Violations and Punishment of. 
 
 262 
 
 injunction which is general in its terms is not to be deemed 
 restricted by a reference to the particular nature of the injury 
 complained of, if the result will be to defeat the purpose of the 
 injunction. 10 
 
 §202. Contempt proceedings to punish violations. — An affi- 
 davit on which contempt proceedings are based is not fatally 
 irregular by reason of its allegations being on information and 
 belief, where the court's jurisdiction proceeds from an order to 
 show cause, and not from the form of the affidavit, and where 
 the commitment is based not on the affidavit but on documentary 
 evidence and oral testimony introduced on the return of the .order 
 to show cause. 11 And generally contempt proceedings are not to 
 be defeated by defects which do not affect the rights of the parties, 
 as for instance a misnomer of the court before which the pro- 
 ceedings are pending; 12 and such defects are waived if no objection 
 is taken to them at the time, and the party proceeds as if there 
 were no irregularity. 13 So though an information in contempt 
 
 Stock Farm v. National Trotting 
 Ass'n, 9 N. Y. Supp. 898. 
 
 10. In Attorney General v. Great 
 Northern R. Co., 4 DeGex & Sm. 75, 
 the company was interfering with a 
 public road by digging a trench and 
 lowering its level; an injunction was 
 granted restraining the company 
 from obstructing the road or ren- 
 dering the same less convenient for 
 carriages than it had previously been, 
 until they had made a proper substi- 
 tuted road. The company then 
 changed their plan and instead of 
 lowering the highway carried the 
 railroad across it on a level with 
 posts and gates which were closed 
 only during a few short periods in 
 the day when trains crossed. Held, 
 that the general terms of the injunc- 
 tion were not restricted by reference 
 to the particular nature of the injury 
 complained of. and that it had been 
 violated in spirit as well as in terms. 
 
 11. Golden Gate Con. H. M. Co. v. 
 Yuba Supreme Court, 65 Cal. 187, 
 190, 3 Pac. 628. 
 
 12. The petitioners were convicted 
 of contempt in violating an injunc- 
 tion in a case in which the complaint 
 was entitled as in " The Supreme 
 Court " of the county, while the other 
 papers were entitled as of " The Su- 
 perior Court " of the county, where 
 the suit was brought. Held, that, 
 though Code Civ. Pro. Cal. § 405, 
 provides that a complaint must con- 
 tain, inter alia, " the name of the 
 court and county in which the action 
 is brought," yet as section 475 pro- 
 vides that the court " must disre- 
 gard " every defect in the pleadings 
 which does not affect the rights of 
 the parties, the court had jurisdic- 
 tion. In re Fil Ki, 79 Cal. 584, 21 
 Pac. 974. 
 
 13. Manderscheid v. District 
 Court Plymouth Co., 69 Iowa, 240, 
 
 415
 
 § 262 Violations and Punishment of. 
 
 proceedings is defective in matter of form yet if the party charged 
 with the contempt appears without objection to the sufficiency 
 of the information and affidavits by appropriate motion, and 
 answers and goes to trial the objection will be regarded as waived. 14 
 A large discretion is also vested in the court granting an injunc- 
 tion in respect to the enforcement of its mandate and upon pro- 
 ceedings for attachment for a violation of the injunction the 
 extent of the fine and imprisonment to be inflicted for the contempt 
 rests in the sound legal discretion of the court itself. 15 An affidavit 
 to set aside contempt proceedings for irregularity should be made 
 either by the party or his attorney, and unless an excuse is shown 
 for dispensing with this affidavit, the affidavit of counsel is not 
 sufficient. 16 If, on motion to punish an attorney for contempt, 
 the proof of service of the injunction is deemed too loose and 
 general, a reference may be ordered to take further proof in respect 
 to such service. 17 And affidavits may be admitted in contempt 
 proceedings to prove a violation of the injunction. 18 Sufficient 
 notice of the granting of an injunction may be given by telegram, 
 but if it is sought to commit for contempt a person who, after 
 receiving such notice, violates the injunction, the court must, on 
 the particular facts, decide whether he had, in fact, notice of the 
 injunction, and the party asking for the committal must prove the 
 notice beyond reasonable doubt. 19 The proceeding to punish for 
 the violation of an injunction is summary, and the charge of 
 contempt may be tried on the original affidavit filed in such pro- 
 ceeding, without any formal pleadings, and may be heard and 
 tried by the judge at chambers who granted the injunction. 20 
 
 28 N. W. 551. In New Jersey an 14. Aaron v. United States, 155 
 
 order to show cause why an attach- Fed. 833. 
 
 ment should not issue for violation 15. Hake v. People, 230 111. 174, 
 
 should, after it is advised by the vice 82 N. E. 56L 568. Per Vickers, J. 
 
 chancellor, be at once presented to 16. People v. Spalding, 2 Paige, 
 
 the chancellor for his signature, and 326. 
 
 with the original affidavits on which 17. In re Schwarz, 14 Fed. 787. 
 
 it is based filed in the clerk's office; 18. O'Brien v. People, 216 111. 354, 
 
 otherwise it must be discharged. 75 N. E. 108. 
 
 Dowden v. Junker, 48 N. J. Eq. 554, 19. Ex parte Langley, L. R. 13 Ch. 
 
 22 Atl. 727. D- HO- 
 
 20. State v. Cutler, 13 Kan. 131. 
 
 416
 
 Violations and Punishment of. § 263 
 
 Where there are conflicting affidavits as to the alleged contempt, 
 an attachment may be issued to bring the defendant into court 
 to be examined on interrogatories, and to enable complainant to 
 compel the attendance of witnesses. 21 A bill of particulars can not, 
 however, be had in contempt proceedings. 22 In Colorado it is 
 decided that under the practice in that State a warrant of attach- 
 ment, for violating an injunction may issue in the first instance 
 without first making an order to show cause, 23 and that in imposing 
 a fine for contempt the court may direct that the party be com- 
 mitted until the fine is paid and such judgment is not in the 
 alternative nor indefinite. 24 Where in contempt proceedings for 
 the alleged violation of an injunction the injunction is not made 
 a part of the record, it will not be assumed to have been broader 
 than the prayer of the bill. 25 
 
 § 263. Same subject continued. — The primary purpose of pro- 
 ceedings for contempt is not to afford a remedy to the party com- 
 plaining, and who may be injured by the acts complained of. Its 
 purpose is to vindicate the authority and dignity of the court. 26 
 Contempt proceedings are, however, of two kinds: civil, or re- 
 medial, when instituted for the purpose of affording relief between 
 the parties to a cause in chancery, and criminal in their nature, 
 when having for their object the punishment of an offense against 
 the authority and dignity of the court. 27 Where the contempt pro- 
 ceeding is criminal in its nature it is unimportant whether injury 
 to the complainant is shown by the violation of the injunction. 28 
 Where a contempt proceeding for violation of an injunction is to 
 
 21. McCredie v. Senior, 4 Paige, 26. Chisolm v. Caines, 121 Fed. 
 378. 397, 402. Per Simonton, J. 
 
 22. O'Brien v. People, 216 111. 27. Glay v. People, 94 111. App. 
 354, 75 N. E. 108. 602, citing People v. Diedrich. 141 
 
 2,3. Shore v. People, 26 Colo. 516, III. 665, 669. 30 N. E. 1038. Exam- 
 59 Pac. 49. ine Smith v. Whitfield, 38 Fla. 211, 
 
 24. Shore v. People, 26 Colo. 516, 20 So. 1U12. 
 
 59 Pae. 49. 28. Glay v. People, 94 111. App. 
 
 25. Detroit & Birmingham P. R. 602; citing People v. Diedrich, 141 
 Co. v. De'roit Citizens S. R. Co.,' 97 111. 665, 671, 30 N. E. 1038. 
 
 Mich. 583, 56 N. W. 940. 
 
 417 
 27
 
 § 264 Violations and Punishment of. 
 
 afford a remedy to the party complaining, it is civil and not 
 criminal, and an appeal will lie from the order therein. 29 And 
 such a proceeding, though sometimes entitled in the name of the 
 State, may properly be in the names of the parties to the original 
 bill. 30 Where proceedings are brought against, a person for con- 
 tempt of court in violating an injunction there cannot be a re- 
 covery for the damages done before the injunction was violated 
 but only for those caused by the violation of the injunction. 31 In 
 construing an injunction, it is not to be supposed that it was 
 intended to restrain acts which would not be injurious to com-' 
 plainant, and still less such as would be beneficial to him. 32 An 
 injunction order is a mandate, disobedience of which is punish- 
 able as a contempt, if there has been personal service of the order, 
 and such disobedience is held to defeat or impair the remedy of 
 a party. 33 So one who is in contempt by reason of a violation of 
 an injunction will not be permitted to come into court to ask any 
 favor until he has purged himself of the contempt. 34 So a defend- 
 ant against whom there is prima facie evidence of being guilty of 
 a breach of an injunction, cannot be heard upon a motion to dis- 
 charge a ne exeat against him in the same cause, until he has purged 
 himself of the contempt. 35 But in another case it is decided that 
 though a party in contempt, even when the court has not adjudi- 
 cated him to be so cannot be heard to ask for a favor, he must be 
 heard upon a matter of right. 36 
 
 § 2G4. Collateral attack of injunction in contempt proceedings. 
 
 29. People v. Diedrich, 141 111. ,32. People v. Diedrich, 141 111. 
 665 30 N. E. 1038. In prosecutions 665, 30 N. E. 1038; Wilkinson v. 
 for criminal contempts, all proceed- Nat. Fire Ins. Co.. 72 N. Y. 499. See, 
 ings subsequent to the order for an also. Parker v. Wakeman, 10 Paige, 
 attachment, or to show cause, includ- 485; Hudson v. Plets, 11 Paige, 180. 
 ing such order, should be in the name 33. Boon v. McGucken, 67 Hun, 
 of the people. Stafford v. Brown, 4 251, 22 N. Y. Supp. 424. 
 
 Paige, 360. 34. Evans v. Van Hall, 1 Clarke's 
 
 30. People v. Craft, 7 Paige (N. Ch. (N. Y.) 22. 
 
 Y.), 324. Examine Crook v. Peo- 35. Evans v. Van Hall, 1 Clarke's 
 
 pie, 16 111. 534. Ch. (N. Y.) 22. 
 
 31. Wilkinson v. Dunkley-Will- 36. Field v. Chapman, 13 Abb. 
 iams Co. (Mich. 1907). 114 N. W. Prac. (N. Y.) 320. 
 
 387. 
 
 418
 
 Violations and Punishment of. 
 
 §264 
 
 — Au injunction decree, rendered by a court having jurisdiction, 
 cannot be collaterally attacked by defendant, when attached for 
 violating it; 37 the only question being whether the injunction has 
 been violated. 38 "Where, however, a motion to punish the party 
 enjoined for a violation, raises an entirely new question, as, for 
 instance, where the infringement of a patent has been enjoined, 
 the contempt proceeding may not be adapted to the trial of it, and 
 in such a case the motion for attachment will be denied, without 
 prejudice to plaintiff's right to file a supplemental bill in the orig- 
 inal suit, or an original bill, as he may be advised. 39 And in pro- 
 ceedings to punish for contempt, the scope and operative effect 
 of the injunction may be passed upon, in order to determine if 
 there has been any violation to punish. 40 One who is in contempt 
 
 37. State v. Kennedy, 65 N. H. 
 247, 23 Atl. 431, per Doe, C. J.: 
 " The decree rendered by a court hav- 
 ing jurisdiction is not void. It can 
 be impeached only in a direct pro- 
 ceeding, reasonably instituted by a 
 party asking that it be reversed or 
 vacated. State v. Richmond, 26 N. 
 H. 232, 242, 247, Wingate v. Hay- 
 wood 40 N. H. 437 ; Home v. Roches- 
 ter, 62 N. H. 347; Charles v. Davis, 
 62 N. H. 375; Blanchard v. Webster, 
 62 N. H. 467; Fowler v. Brooks, 64 
 N. H. 423; McDonald v. Drew. 64 N. 
 H. 547, 15 Atl. 148; Kittredge v. 
 Martin, 141 Mass. 410, 6 N. E. 95. If 
 the validity of a judgment could be 
 contested collaterally, a second judg- 
 ment, avoiding the effect of the first, 
 without a direct and express annul- 
 ment of it. would be subject to a like 
 attack, and there would be no termin- 
 ation of litigation by a final dec- 
 ision." 
 
 ,38. People v. Spalding, 2 Paige, 
 326; Whipple v. Hutchinson, 4 
 Blatcnf. 190. 
 
 39. Defendants, having been en- 
 joined from infringing the 1st, 2d 
 j*nd 6th claims of letters patent No. 
 
 271,398, issued January 30, 1883, to 
 John G. Baker, for a machine for 
 mincing meat, etc., constructed a ma- 
 chine in exact accordance with those 
 claims, but having in addition thereto 
 a detachable frame containing three 
 stationary blades, through which the 
 meat is pressed by the forcing screw, 
 thus cutting it to some extent before 
 it reaches the rotating knives. Plain- 
 tiff moved for an attachment for con- 
 tempt, on the ground that the detach- 
 able frame was of no practical value, 
 but defendants filed affidavits alleg- 
 ing that with the attachment from 
 21 to 38 per cent, more meat was 
 cut than without it. Held, that this 
 presented a new question, which could 
 not be tried in a contempt proceed- 
 ing. Enterprise M'f'g Co. v. Sargent 
 (Cir. Ct.), 48 Fed. 453. See, also, 
 Allis v. Stowell, 15 Fed. 242. 
 
 40. In proceedings to punish for 
 contempt for the violation of an in- 
 junction contained in a decree ad- 
 judging the respondents to be in pos- 
 session of the property involved, and 
 enjoining the appellants from enter- 
 ing upon a lode thereon or digging 
 thereon, or removing or extracting 
 
 419
 
 § 265 Violations and Punishment of. 
 
 for disobeying an injunction will not ordinarily be allowed to 
 move for a dissolution of the injunction, but this rule is not in- 
 flexible ; 41 and such a motion may be allowed where the nature and 
 extent of the punishment to be inflicted for the contempt depend 
 upon the question whether the injunction shall be continued or 
 not. 42 In Wisconsin a technical violation of an ex parte injunction, 
 which ought not to have been granted, does not deprive defendant 
 of his legal right to have it dissolved. 43 
 
 § 265. Punishment in Iowa. — In Iowa it is decided that punish- 
 ment must follow a violation of an injunction, as the only discre- 
 tion allowed by tho statute to the courts is as to the amount of the 
 fine or the term of imprisonment within the statutory limits; 44 
 and a refusal by the District Court so to punish will be taken by 
 certiorari to the Supreme Court for review. 45 So a person 
 adjudged guilty of contempt may test the legality of the proceed- 
 ings by certiorari, though he did not except to the judgment 
 against him, certiorari not being in the nature of an appeal but 
 in the nature of an original proceeding. 46 In the exercise of its 
 discretion as to the amount of the fine, the court will make it only 
 nominal, where it is satisfied the offender acted under a sense of 
 
 ores therefrom, and from interfering violation for appellants to remain as 
 
 with or hindering respondents from they were when the injunction was 
 
 taking possession of said lode, the granted. Bullion Min. Co. v. Eureka 
 
 charge made against the appellants Hill Min. Co., 5 Utah, 151, 13 Pac. 
 
 was that they had been using two cer- 174. 
 
 tain drifts under a part of the prem- 41. Bradford v. Peckham, 9 R. I. 
 
 ises in dispute for the purpose of 250. 
 
 conveying ores to shafts of appel- 42. Endicott v. Mathis, 9 N. J. 
 
 lants, and thereby hindered and ob- Eq. 110; Williamson v. Carnan, 1 
 
 structed respondents' possession. The Gill & J. 184. 
 
 evidence showed that the appellants 43. Kaehler v. Dobberpuhl, 60 
 
 were in possession of the two drifts Wis. 256, 18 N. W. 841. 
 
 at the time the injunction was 44. Lindsay v. Hatch, 85 Iowa, 
 
 granted, and there was no evidence 332, 52 N. W. 226. 
 
 that they hindered or obstructed the 45. Lindsay v. Hatch, 85 Iowa, 
 
 respondents from taking possession 332, 52 N. W. 226. 
 
 and working the lode. Held, that the 46. Coffey v. Gambler, 117 Iowa, 
 
 injunction could not be used to eject 545, 91 N. W. 813. 
 
 the appellants, and that it was no 
 
 420
 
 Violations and Punishment of. § 260 
 
 duty and according to his best judgment, and promises obedience 
 for the future. 47 Where one is imprisoned for non-payment of a 
 fine imposed for violating an injunction under the Iowa statute, 
 against selling liquor, he cannot avail himself of the provision of 
 the statute authorizing a release, after thirty days, on giving a 
 note. 48 Each court must see to it for itself that its orders are not 
 disobeyed, and the court of equity which has issued an injunction 
 must maintain its authority and punish any violation of it, and it 
 is proper to conduct the contempt proceeding under the title of 
 and as incident to the injunction suit. 49 In Iowa when contempt 
 proceedings for breach of injunction are brought before a judge 
 at chambers, it is required by section 3403 of the Iowa Code, that 
 a copy of the injunction be furnished to the offender, but if the 
 proceedings are brought before the court it is sufficient if the in- 
 formation alleges the injunction decree and its violation, and refers 
 to the record of the decree. 50 
 
 § 2GG. Who may institute contempt proceedings; estoppel. 
 
 An injunction obtained to protect a merely private right is so far 
 within the control of the party obtaining it, and is so far a matter 
 of individual concern, that only those who have a present interest 
 in the right to be protected can complain of the breach of the 
 injunction and move for its punishment as a contempt. Thus 
 where an injunction restrained defendant from the manufacture 
 of I?uttan furnaces within a certain territory, and the plaintiff 
 then assigned his right so to manufacture to others, it. was held 
 that he could not thereafter have an attachment against defendant 
 for a violation. 51 And it was held that stockholders who had 
 
 47. When the mayor and marshal 49. Manderscheid v. District Court 
 of a city have disobeyed a mandate of Plymouth Co., 69 Iowa, 240, 28 N. 
 the court, believing it their duty to W. 551; State v. Tipton, 1 Blackf. 
 do so under certain city ordinances, 166. 
 
 their fine will be nominal, provided 50. Silvers v. Traverse, 82 Iowa 
 
 they agree to abide by the order; but 52, 47 N. W. 888. 
 
 they must pay costs. Des Moines St. 51. Diedrich v. People. 141 HI. 
 
 R. Co. v. Des Moines Broad Gauge 665, 37 111. App. 604. aff'd 30 N. E. 
 
 R. Co., 74 Iowa, 585 38 N. W. 496. 1038. See, also, Crook v. People. 16 
 
 48. Hanks v. Workman, 69 Iowa, III. 534; Hawley v. Bennett, 4 Paige, 
 600, 29 N. W. 638. 163. 
 
 421
 
 $267 
 
 Violations and Punishment of. 
 
 obtained an injunction to restrain the levy of taxes on certain 
 property of the corporation, could not file an information to punish 
 a violation after the property had been sold to another corporation 
 under a decree in foreclosure. 52 A party who has obtained an 
 injunction may release it, or at least may estop himself by express 
 agreement or his conduct, from having a violation adjudged to 
 be a contempt. 53 And a complainant who himself consents to a 
 violation is thereby estopped from having the defendant punished 
 for it. 6 * 
 
 is 
 
 § 267. Delay in punishing for contempt. — An injunction 
 not waived by plaintiff by his delay in applying for an attachment 
 for its violation ; it does not lie with the violator to complain that 
 he has not been sooner punished ; 55 or has not been punished enough 
 
 52. Secor v. Singleton, 35 Fed. 376. 
 
 53. Mills v. Cobby, 1 Meriv. 3. 
 In Hull v. Harris, 45 Conn. 544, 
 pending a proceeding for contempt 
 in disobeying an injunction against 
 the diversion of water from a spring. 
 the plaintiff and defendant entered 
 into an agreement by which the pro- 
 ceeding was to be continued to a 
 future day and the defendant was to 
 use all practicable means to restore 
 the stream, to pay the plaintiff his 
 expenses of suit and also such dam- 
 ages as they should agree on or be 
 fixed by a referee, and to give plain- 
 tiff a bond that his right to the water 
 should not be disturbed, and when 
 this was done the proceeding was to 
 be withdrawn. The defendant re- 
 stored the stream, paid the expenses, 
 but did not pay damages or give the 
 bond. It appeared however that he 
 had called on plaintiff for his claim 
 for damages, which had been refused. 
 Held, that defendant was not liable 
 to a judgment for contempt. Pro- 
 ceedings on attachment for contempt 
 in violating an injunction were per- 
 mitted to stand over, steps being 
 
 taken to permanently abate the nui- 
 sance, the complainants therefore not 
 invoking immediate action by the 
 court; but attachment to be promptly 
 issued, unless the nuisance be speed- 
 ily abated. King v. Union, 24 N. 
 J. Eq. 353. 
 
 54. Howard v. Durand, 36 Ga. 346. 
 
 55. Dale v. Rosevelt, 1 Paige (N. 
 Y.), 35. See In re Schwarz, 14 Fed. 
 787. Where, upon a motion for an 
 attachment for contempt of court in 
 having disobeyed an injunction 
 granted by the court below, which in- 
 junction was afterwards dissolved, 
 but carried by appeal to the Supreme 
 Court, it appeared that the appeal 
 from the judgment dissolving the 
 same was perfected in June 1886, 
 and that the notice of motion for the 
 attachment was filed on the ninth of 
 November following it was held that 
 the complainant was not guilty Of 
 laches that would deprive him of the 
 benefits of the injunction. Gulf, C. & 
 S. F. Ry. Co. v. Fort Worth & N. O. 
 Ry. Co., 68 Tex. 98, 105, 2 S. W. 
 199. 
 
 422
 
 Violations and Punishment or. § 268 
 
 to meet the statutory requirement. 56 The defendant, however, 
 though knowing of the injunction, will not be committed for 
 violating it where the complainant has allowed a long time to 
 elapse before having it drawn up and served; 57 but the rule just 
 stated does not apply unless the laches of complainant has been 
 such as to mislead the defendant; and the general rule that the 
 defendant knowing of the injunction is liable for breach of it, 
 though he has not been served, is not confined to cases where the 
 breach was committed before plaintiff had time to get the injunc- 
 tion drawn up and entered. 58 A perpetual injunction does not 
 become dormant by the mere lapse of time, and an execution is 
 not necessary to continue it in force, and therefore it may always 
 continue to be sufficient as the basis of a contempt proceeding 
 against one who violates it. 59 Where an order for a temporary 
 injunction is reversed, an order punishing one for contempt, in 
 disobeying such injunction, has been held to fall with it; 60 and an 
 attachment for violating an injunction while in force will not be 
 issued after it has been dissolved. 61 
 
 § 268. Who punishable for contempt. — Where one defendant 
 is served with the injunction, and another defendant, who is not 
 served but knows its contents, violates it as the other's agent or 
 servant, he may be punished as in contempt. 62 And if the injunc- 
 tion is directed to the defendant only without including agents or 
 servants, an agent who with full knowledge of the injunction does 
 the prohibited acts, may be committed for contempt, though not 
 guilty of a technical breach. 63 But where certain city contractors 
 
 56. People v. Spalding. 2 Paige 59. State v. Durein, 46 Kan. 695, 
 (N. Y.), 326. 331. 27 Pac. 148. 
 
 57. James v. Downes, 18 Ves. 522. 60. Krone v. Kings County El. R. 
 
 58. United Tel. Co. v. Dale L. R. Co.. 50 Hun, 431, 3 N. Y. Supp. 149. 
 25 Ch. D. 778. And where defend- 61. Moat v. Holbein, 2 Edw. Ch. 
 ant relies for an excuse on the com- 188. 
 
 plainant's acquiescence in the viola- 62. Aldinger v. Pugh, 57 Hun, 
 
 tion he must show such acquiescence 181, 10 N. Y. S. 684, aff'd 132 N. Y. 
 
 as creates a new right in himself. 403, 30 N. E. 745. 
 
 Rodgers v. Nowill. 3 DeG. M. & G. 63. Wellesley v. Mornington, 11 
 
 614. Beav. 181. 
 
 423
 
 § 269 Violations and .Punishment of. 
 
 were enjoined from removing the track of a railroad, it was held 
 that the mayor of the city was not in contempt for ordering the 
 track removed by others, as neither he nor the city had been made 
 parties nor enjoined. 64 And a defendant is not to be punished for 
 violating a writ of injunction which goes further than the prayer 
 of the bill. 65 An injunction directed to the defendant, his agents 
 and employees, is binding upon the defendant's attorney, who 
 received knowledge of it in open court, and he is guilty of 
 contempt though at the time of his breach he was not acting for 
 defendant, but for purchasers from the defendant. 66 A bailiff 
 who pays over money in violation of an injunction served on him 
 will be responsible to the plaintiff in the injunction for the 
 amount. 67 
 
 §269. Landlord and tenant; husband and wife. — Where an 
 injunction is issued under section 1543 of the Iowa Code provid- 
 ing for the abatement of the liquor nuisance, and declaring that 
 any person violating the injunction shall be punished for contempt, 
 it has been held that the injunction operates upon place and prop- 
 erty as well as in personam, and that a person using the place 
 unlawfully may be punished for contempt, though not made a 
 party and though the injunction be not in terms directed to him. 
 And the tenant of the party enjoined may be so punished for 
 contempt. 68 Where a landlord lets premises and his tenant sublets, 
 and the sub-tenant opens a saloon in violation of law, and the land- 
 lord and sub-tenant are enjoined from keeping the saloon, the 
 landlord's omission to take steps to avoid the lease and to re-enter 
 the premises, are not sufficient to put him in contempt of the 
 injunction, 69 though in such a case he might have been in contempt 
 if he had had an interest in the saloon, or had in any way abetted 
 
 64. Boyd v. State, 19 Neb. 128. 67. Randall v. Parkison, 7 Rob. 
 See, also, VanZant v. Mining Co., 2 (La.) 134. 
 
 McCrary, 643; Iveson v. Harris, 7 68. Silvers v. Traverse, 82 Iowa, 
 
 Ves. 256. 52, 47 N. W. 888. 
 
 65. Freeman v. Deming, 4 Edw. 69. Koester v. State, 36 Kan. 27, 
 Ch. 598. 12 Pac. 339. 
 
 66. Wimpy v. Phinizy, 68 Ga. 188. 
 
 424
 
 Violations and Punishment of. §§ 270, 270a 
 
 or participated in its continuance. 70 The general rule is that a 
 tenant is not to be regarded a3 included within the scope of an 
 injunction which is directed to a landlord and his agents or 
 servants. 71 And a husband will not be committed for his wife's 
 breach of an injunction if he has not been privy to the breach. 72 
 
 § 270. Party punishable on notice. — A party who has actual 
 notice of an order for the immediate issue of an injunction and 
 disobeys the terms of it as ordered, is guilty of a contempt, though 
 the injunction has not been served upon him, or issued, or the 
 order formally drawn up; but where it is ordered that an injunc- 
 tion shall issue upon the filing of the bill, such order is conditional, 
 and there is no injunction, and can be no contempt till the bill is 
 filed. 73 A notice by telegraph of the granting of an injunction is 
 sufficient to place the party disregarding such notice, in contempt, 
 provided it proceeds from a source entitled to credit, and informs 
 the defendant clearly from what act he must abstain. 74 
 
 § 270a. Facts in mitigation. — The verbal construction of an 
 injunction order by the court in issuing it is not a modification or 
 dissolution of the same but may be considered in mitigation. 75 
 And in proceedings for contempt for violating an injunction, evi- 
 dence that the judge stated that the injunction was dissolved, that 
 no formal decree was necessary, and that the persons enjoined 
 might proceed, is admissible in mitigation. 76 And where defend- 
 ant's employees without orders drove across complainant's rail- 
 road after award of injunction to restrain trespass on its roadway, 
 and the defendant disclaimed all evil intent it was held error to 
 impose a fine for contempt. 77 Again, evidence is admissible in 
 
 70. State v. Abrahams. 6 Iowa, Langley, L. R. 13 Ch. D. 110; Ton- 
 117; Abrahams v. State, 4 Iowa, 541. kinson v. Cartledge, 22 Alb. L. J. 123. 
 
 71. Hodson v. Coppard, 29 Beav. 4. 75. Young v. Rothrock, 121 Iowa. 
 
 72. Hope v. Carnegie, L. R. 7 Eq. 588. 96 N. W. 1105. 
 
 260. 76. Coffey v. Gamble, 117 Iowa, 
 
 73. Winslow v. Nayson, 113 Mass. 545, 91 N. W. 813. 
 
 411. 77. Postal Teleg. Cable Co. v. 
 
 74. Cape May, etc., R. Co. v. Norfolk & W. R. Co., 8d Va. 929, 14 
 Johnson, 35 N. J. Eq. 422; Ex parte S. E. 691. 
 
 425
 
 §271 
 
 Violations and Punishment of. 
 
 mitigation that a violation was by employees in consequence of a 
 misunderstanding by them in carrying out instructions given to 
 them and that if such instructions had been followed there would 
 have been no violations. 78 So, too, restitution by the violator doea 
 not relieve him from his liability to punishment, but is a fact to 
 be considered in mitigation of the penalty. 79 
 
 § 271. Motive, intent or belief, as excuse. — If the party en- 
 joined disobeys the injunction, the belief, motive or intent with 
 which he disobeys cannot ordinarily excuse him. 80 And generally 
 defendants in contempt proceedings for disobeying an order of 
 injunction can not set up their opinion as to the meaning of the 
 order against that of the court, and still less can they justify 
 themselves by showing that they obeyed the order in part while at 
 the same time they admit the violation of the order in other 
 essential particulars. 81 So the opinion of the party enjoined that 
 he is not violating the injunction does not excuse the violation. 82 
 
 78. Boston & Montana C. C. & S. 
 M. Co. v. Montana Ore P. Co., 24 
 Mont. 117, 60 Pac. 807. So holding 
 where a foreman misunderstood di- 
 rections given to him to run a drift 
 in a mine in a westerly direction and 
 ran it in an easterly direction on the 
 mining claim of complainant. 
 
 79. The mere fact that defendants 
 removed a quantity of hay from a 
 leased farm in violation of a valid 
 injunction, issued at plaintiff's in- 
 stance, is sufficient to support a find- 
 ing that plaintiff's rights were " de- 
 feated, impaired, impeded, or preju- 
 diced " thereby, as required by Code 
 Civ. Pro. N. Y. § 2266, to justify 
 summary punishment; and the fact 
 that they afterwards brought upon 
 the farm the equivalent in manure of 
 the hay so taken, thus substantially 
 complying with the provisions of the 
 lease, did not deprive the court of 
 power to punish them for contempt, 
 
 but was only a fact to be considered 
 in mitigation. Aldinger v. Pugh, 57 
 Hun, 181. 10 N. Y. Supp. 684, 132 
 N. Y. 403, 30 N. E. 745. 
 
 80. Wilcox Silver-Plate Co. v. 
 Schimmel, 59 Mich. 524. 26 N. W. 
 692, per Champlin, J. : " Neither the 
 belief, motive nor intent with which 
 the writ was disobeyed in any man- 
 ner varies the responsibility of the 
 party who violates it — citing Peo- 
 ple v. Sturtevant, 9 N. Y. 263, 59 
 Am. Dec. 536; Richards v. West, 3 
 N. J. Eq. 456; People v. Spalding, 2 
 Paige, 326; Commercial Bank v. 
 Waters, 10 Smedes & M. 559; Mon- 
 roe v. Harkness, 1 Cranch. C. C. 157; 
 Mead v. Norris, 21 Wis. 310; Quack- 
 enbusch v. Van Riper, 3 N. J. Eq. 
 350; Romeyn v. Caplis, 17 Mich. 449. 
 
 81. Shirk v. Cox, 141 Ind. 301, 40 
 N. E. 750. 
 
 82. Where defendant, engaged in 
 selling liquors in the original pack 
 
 426
 
 Violations and Punishment of. 
 
 S271 
 
 A party may, however, in some cases be excused for a contempt 
 where he acts as he honestly believes he is authorized to do by the 
 judge granting the injunction; and in such a case a judgment of 
 the court below refusing to order an attachment against him will 
 not be disturbed. 83 And evidence of the intent and good faith of 
 a person charged with contempt for violating an injunction will 
 be heard. 84 So the court will not ordinarily regard a mere techni- 
 cal and insignificant violation of an injunction as sufficient cause 
 for punishment, where it appears from the evidence that there was 
 no intention of violating it. 85 But where a party thus excuses 
 himself, or where he relies for an excuse upon the settlement and 
 withdrawal of the injunction, the burden of proof rests upon him, 
 and his own testimony alone is not sufficient in case of dispute. 86 
 
 ages in which they were imported 
 into the State, is temporarily en- 
 joined from the illegal sale of liquor, 
 it is no excuse for a violation of the 
 injunction that defendant thought 
 that such sales were not in violation. 
 State v. Bowman, 79 Iowa, 566, 44 N. 
 W. 813. 
 
 83. An order having been granted 
 restraining defendant from paying 
 out money in his hands until the fur- 
 ther order of the court, plaintiff pre- 
 sented a petition alleging that de- 
 fendant had paid out the money in 
 violation of the order, and prayed 
 that he be then required to pay the 
 amount into court, or give bond for 
 its forthcoming, or in default thereof 
 that he be attached for contempt. It 
 appeared that defendant was insolv- 
 ent; that the money was not in his 
 possession, custody, or control ; that 
 he was unable to raise that amount, 
 and could not give the bond required; 
 and that he had paid out the money 
 in good faith, and under the honest 
 belief that he was authorized so to 
 do by the judge who had granted the 
 restraining order, and with reason 
 for so believing which the judge 
 
 deemed satisfactory. Held, that the 
 judgment of the court beiow, refusing 
 to order the process of attachment to 
 issue, would not be disturbed. Salter 
 v. Tillotson, 89 Ga. 29. 14 S. E. 903. 
 
 84. Young v. Rothrock, 121 Iowa, 
 588, 96 N. W. 1105; State v. Collins, 
 62 N. H. 694; Powers v. Von Schmidt, 
 87 Fed. 293. 
 
 85. Benton & Montana C. C. & S. 
 M. Co. v. Montana Ore P. Co., 24 
 Mont. 117, 60 Pac. 807. 
 
 86. In a suit to set aside an injunc- 
 tion restraining plaintiff from main- 
 taining a liquor nuisance, plaintiff's 
 testimony that his attorney, in the 
 presence of the judge and sheriff, told 
 him, a month after the decree was 
 rendered, that if he paid the costs 
 there would be nothing against him; 
 that the judge said that that would 
 settle it; that when he paid the costs 
 the sheriff told him that that settled 
 the matter; and that he did not learn 
 of the injunction till three years af- 
 terwards — is insufficient to show that 
 a settlement was made, where neither 
 the judge nor attorney is called to 
 testify as to the matter, the attorney 
 for the defendant denies the settle* 
 
 427
 
 §272 
 
 Violations and Punishment of. 
 
 § 273. Disclaimer of contempt as excuse or in mitigation. — A 
 formal disclaimer by the party enjoined of an intention to commit 
 a contempt is a vain excuse when it is belied by an open and defiant 
 disregard of the injunction; 87 and a violation is a contempt though 
 not wilful. 88 But such disclaimer will sometimes have the effect 
 of mitigating the penalty imposed on the offender; 89 and may even 
 Si rve to excuse a party where the violation is trifling and momen- 
 tary and apparently the result of necessity. 90 And where defendant 
 has not wilfully disobeyed an injunction restraining him from 
 
 ment, and there is evidence that de- 
 fendant, in obedience to the injunc- 
 tion, closed up his saloon for a con- 
 siderable time, and made no objection 
 to the decree till several months 
 after contempt proceedings were be- 
 gun against him. Geyer v. Douglass, 
 85 Iowa, 93, 52 N. W. 111. 
 
 87. Ex parte Huidekoper, 55 Fed. 
 709. 
 
 88. A judgment continued an in- 
 junction forbidding defendants to 
 foreclose a certain chattel mortgage, 
 but without prejudice to their right 
 to bring an action to determine the 
 rights of all parties in the mortgage. 
 An affidavit stated that the order was 
 served on defendants, and the fact was 
 not denied by defendant D., who was 
 fully advised of the provisions of the 
 judgment. Held, that D., having veri- 
 fied a complaint and affidavit of at- 
 tachment in an action by defendants 
 in the injunction, for the foreclosure 
 of such mortgage, was guilty of con- 
 tempt, and that it was immaterial 
 that he was not guilty of a willful 
 violation of the order. Gage v. Den- 
 bow, 49 Hun, 42, 1 N. Y. Supp. 826. 
 
 89. Watson v. Citizens' Savings 
 Bank, 5 S. C. 159, 182, per Moses, C. 
 J. : " We do not fee 1 the force of the 
 argument on the part of the counsel 
 that a mere disclaimer of all inten- 
 
 tion of contempt, where it is of a 
 constructive kind, so completely 
 purges it as concludes all further 
 proceeding. The authorities do not 
 sustain the proposition to the extent 
 stated. Such a rule would make the 
 court powerless to punish even a 
 gross contempt on the mere dis- 
 claimer of all intention. While the 
 intention is often the criterion by 
 which criminal acts are judged, the 
 absence of it in the perpetration of 
 wrong does not always discharge one 
 from the consequences which may fol- 
 low. It is true that a disavowal of 
 purposes, with aii expression of re- 
 gret that such a construction has 
 been put on the act of a party as to 
 hold him answerable for a contempt 
 will operate to his benefit in the 
 measure of the penalty." 
 
 90. Defendant should not be pun- 
 ished for a contempt for disobeying a 
 temporary injunction granted in a 
 suit to restrain a trespass on plain- 
 tiff's roadway, where all evil inten- 
 tion is disclaimed, and the only thing 
 done was the crossing of the railroad 
 by some of defendant's employees in a 
 wagon by a private roadway, the 
 usual route being interrupted by the 
 destruction of a bridge. Postal Tel. 
 Cable Co. v. Norfolk R. Co., 88 Va. 
 929, 14 S. E. 691. 
 
 428
 
 Violations and Punishment of. 
 
 §273 
 
 using a patent, it is sufficient to make him pay all the damages 
 caused by such use, with the costs of the contempt proceedings. 91 
 
 § 273. Advice of counsel as an excuse. — The party enjoined is 
 not excused in violating an injunction by the advice of his counsel 
 that his act would not be a violation ; 92 but if he seeks the advice 
 of counsel with a manifest desire to abide by the law and not 
 violate the injunction, the courts will be reluctant to punish his 
 mistake or to find therein a contempt of their dignity, 93 and will 
 allow him to purge his technical contempt without a fine and on 
 payment of costs, 94 or of the damages sustained by the adverse 
 party. 95 And if he acts in good faith and under advice of counsel, 
 and causes but trifling injury to the enjoining party, hi? offense is 
 mitigated. 96 Therefore in proceeding for contempt for violating 
 
 91. Ready Roofing Co. v. Taylor, 15 
 Blatchf. 94. 
 
 92. United States. — Ulman v. Rit- 
 ter, 72 Fed. 1000; Hamilton v. Si- 
 mons, Fed. Cas. No. 5991, 5 Biss. 77. 
 
 Iou-a. — Lindsay v. Hatch, 85 Iowa, 
 332, 744, 52 N. W. 226, 227. 
 
 ~New Jersey. — McKillop v. Taylor 
 25 N. J. Eq. 139. 
 
 ~Sew York. — Boon v. McGucken, 67 
 Hun, 251, 22 N. Y. Supp. 424; Peo- 
 ple v. Edson, 51 N. Y. Super. Ct. 238; 
 Copet v. Parker, 5 N. Y. Super Ct. 
 662; Hawley v. Bennett, 4 Paige, 163. 
 
 ~Sorth Carolina. — Green v. Griffin, 
 95 N. C. 50. 
 
 South Carolina. — Columbia Water 
 Power Co. v. City of Columbia, 4 
 Rich. 388; Burton Dinsmore v. Louis- 
 ville N. A. & C. R. Co., 3 Fed. 593. 
 
 A defendant -who, when en- 
 joined from selling a certain 
 cordial in certain bottles with a 
 particular label, sells its entire stock 
 of the cordial, bottles, and labels to 
 a third person, under an arrangement 
 that he would fill such orders for the 
 cordial as the defendant might re- 
 
 ceive is guilty of a violation of the 
 injunction, though the defendant did 
 not share in the profit of filling such 
 orders, and though it had received 
 the advice of counsel that it might 
 sell its stock in bulk without violat- 
 ing the injunction. Societe Anonyme 
 v. Western Distilling Co., 42 Fed. 96. 
 
 93. Boon v. McGucken, 67 Hun, 
 251, 22 N. Y. Supp. 424, 430; People 
 v. Aitken. 19 Hun, 329. 
 
 94. Carstaedt v. United States 
 Corset Co.. 13 Blatchf. (U. S) 371; 
 Bradford v Peckham, 9 R. I. 2Z0. 
 
 95. Matthews v. Spangenberg 15 
 Fed. 813; Lansing v. Easton, 7 Paige 
 (X. Y.), 364. 
 
 96. Prior to January 2. 1891, two 
 factions were each endeavoring to ob- 
 tain control of the affairs of a com- 
 pany, and one of them had obtained 
 an injunction to restrain defendant 
 from attempting to act as business 
 manager of the company, or to enter 
 on Its premises for that purpose. Af- 
 terwards defendant was elected busi- 
 ness manager of the compmy by his 
 faction, and was advised by counsel
 
 § 274 Violations and Punishment of. 
 
 an injunction evidence that the defendant acted on the advice of 
 counsel is admissible in mitigation. 97 So it is decided in a case 
 in New York that the fact that the defendant acted under the 
 advice of counsel, in violating an injunction, is no justification 
 and merely goes in mitigation to the extent that the court is 
 satisfied that the advice was sought, obtained and acted on in good 
 faith. 98 
 
 § 274. Contempt of receiver. — Where it appears that a receiver 
 has funds in his hands sufficient to satisfy a lien thereon, and 
 wilfully refuses on demand to obey an order of the court directing 
 him to pay such lien, it is a justifiable inference that such conduct 
 impedes, impairs and defeats the rights and remedies of the lien 
 or to the extent of the lien, and upon an adjudication to that effect 
 a fine may be imposed on the receiver to the amount of the lien, 
 and is not limited to the amount provided by Code with costs and 
 expenses; and in such a case it is not necessary that the order 
 imposing the fine should in form adjudge that actual loss or injury 
 has been sustained to the amount of the fine, if it appears that such 
 loss has been suffered, nor is it essential to show that the loss is 
 irremediable. 99 Such a wilful refusal of a receiver to obey an 
 order requiring a payment by him out of funds in his hands as 
 
 that he was entitled to take posses- 97. Coffey v. Gamble, 117 Iowa, 
 
 sion of the office of the company and 545, 91 N. W. 813. 
 
 administer its affairs, which he did 98. Stolts v. Tuska, 82 App. Div. 
 
 by entering the office with his party, (N. Y.) 81, 84, 81 N. Y. Supp. 638. 
 
 ejecting the office-boy, procuring the Per Laughlin, J., citing New York 
 
 Bafe to be opened, and discharging an Mail & N. T. Co. v. Shea, 30 App. 
 
 employee of the company. Held a Div. 374; People v. Compton, 1 Duer, 
 
 violation of the injunction order, 512; Ciancimino T. & T. Co. v. Cian- 
 
 whether his election was or was not cimino, 43 N. Y. St. R. 49, aff'd 
 
 valid; but that, having acted under 133 N. Y. 672, 21 N. E. 625; 
 
 the advice of counsel, and no loss or Erie Ry. v. Ramsey, 45 N. Y. 637, 
 
 damage to the company having ac- 654, 655 ; Hawley v. Bennett, 4 Paige, 
 
 crued therefrom, defendant's term of 163; Rogers v. Paterson, 4 Paige 450. 
 
 imprisonment should be reduced from 99. Clark v. Bininger, 75 N. Y. 
 
 30 to 10 days. Cianeimino's Towing 344; Sudlow v. Knox, 7 Abb. N. S. 
 
 & Transp. Co. v. Ciancimino (Sup.), 411. 
 17 N. Y. Supp. 125. 
 
 430
 
 Violations and Punishment of. § 275 
 
 receiver, is quite different in principle from an ordinary case of 
 failure to comply with a direction to pay a sum of money generally. 1 
 
 § 275. Punishing contempt in supplementary proceedings. — 
 
 Where a judgment debtor kept in bank an alleged trust account, 
 but placed therein all of his earnings, he was adjudged guilty of 
 contempt for drawing therefrom for family expenses after service 
 upon him of the usual restraining order in supplementary pro- 
 ceedings. 2 An injunction in supplementary proceedings restrain- 
 ing the debtor from transferring his property " until further order 
 in the premises," is broad enough to enjoin a transfer by him of 
 an interest he has in the estate of a deceased son, which consists 
 of a cause of action for damages for negligence causing the death 
 of his son, and a transfer of such interest after he is served with 
 the restraining order, is a contempt for which he may be punished 
 by fine to be enforced by warrant of commitment. 3 And the fact 
 that the party who has violated the restraining order subsequently 
 becomes alarmed and saves the party obtaining the order from the 
 loss attendant upon the violation, does not relieve him from liability 
 therefor, 4 but may serve to mitigate the penalty. 5 In order to 
 support a conviction for contempt in disobeying an injunction in 
 supplementary proceedings forbidding the transfer of property, it 
 must be shown that the legal title is in the judgment debtor. 6 And 
 
 1. Watson v. Nelson, 69 N. Y. 536, fine of $250 and costs would be im- 
 645; People v. Cowles, 3 Abb. Ct. posed, and if not paid in ten days 
 App. Dec. 507, 510. enforced by commitment. Where in 
 
 2. People v. Kingsland. 3 Keyes violation of the injunction the debtor 
 (N. Y.) ; 325, where it was held that disposes of property the amount of 
 a fine of $400 was not unreasonable, the fine to be imposed must be regu- 
 he having withdrawn $356.25. lated according to the value of the 
 
 3. Wynkoop v. Meyers, 17 N. Y. property and not by the amount of 
 Civ. Pro. 443, 7 N. Y. Supp. 898. In the judgment, where it exceeds the 
 this case as the amount of the debt- value of the property. Feely v. Glen- 
 oids interest could not be determined nen, 2 Law Bull. 19. 
 
 until an accounting had been had in 4. Aldinger v. Pugh, 57 Hun, 181. 
 
 the surrogate's court, the probability 10 N. Y. Supp. 684, aff'd 132 N. Y. 
 
 that it would exceed the plaintiff's 403. 30 N. E. 745. 
 
 judgment would not warrant the im- 5. King v. Barnes, 113 N. Y. 476, 
 
 position of a fine based on that con- 21 N. E. 182. 
 
 jecture, but as substantial injury had 6. Beard v. Snook, 47 Hun, 158. 
 
 been done the judgment creditor, a In this case the defendant was ad- 
 
 431
 
 §275a 
 
 Violations and Punishment of. 
 
 in such a proceeding the positive testimony of the party enjoined 
 that the legal title was not in him, if corroborated by witnesses, 
 cannot be overthrown merely by the proof of suspicious circum- 
 stances. 7 
 
 § 275a. Violations by corporations; officers and employees 
 
 of. A private corporation may be punished for contempt where 
 
 it violates the terms of an injunction, 8 and may be charged with 
 violatiug an injunction directed to its officers and violated by 
 them, 9 and may be fined for such violations. 10 And a common car- 
 
 judged to pay plaintiff $625.66 as a 
 fine for his misconduct, and to be im- 
 prisoned until it was paid, but the 
 order was reversed. See, also, Dean 
 v. Hyatt, 5 N. Y. W. Dig. 67. 
 
 7. Slater v. Merritt, 7 N. Y. W. 
 Dig. 510. 
 
 8. Golden Gate M. Co. v. Superior 
 Court, 65 Cal. 187, 3 Pac. 628; 
 Mayor of City of New York v. Mew 
 York & S. I. F. Co., 64 N. Y. 622. 
 
 In an early case in New York it is 
 said in this connection : " It is no 
 answer to say that the act of the cor- 
 poration is manifested and carried 
 into effect by individuals, and that 
 those persons are always liable to 
 the process of the law and may be 
 punished and therefore the injured 
 party always has the means of re- 
 dress. It is a poor compliment to 
 say that while the principal is the 
 real offender, though you cannot 
 reach him you can reach his agent, 
 his instrument. Beside, the agent 
 may be entirely irresponsible, or com- 
 paratively innocent. And why can- 
 not a corporation be punished for 
 contempt? It is said, because it 
 cannot be attached, that is, person- 
 ally seized or taken. This shows no 
 sufficient reason. In the former equity 
 practice it sometimes became neces- 
 sary to order a corporation to answer 
 
 a bill in chancery. If it refused it 
 was not strictly attached, as a nat- 
 ural person would be, but a dis- 
 tringas, or writ authorizing a dis- 
 tress upon its property, was issued; 
 this failing, a second, and sometimes 
 a third was issued, and if all these 
 were insufficient, then process of se- 
 questration was issued against it and 
 its property sequestered for the ben- 
 efit of the aggrieved party. Why may 
 may not process of sequestration be 
 issued against it to punish it for 
 contempt in violating an injunction 
 as well as contempt in refusing to 
 answer? Why may it not be fined for 
 the contempt, and the fine collected 
 in the ordinary way? Corporations 
 are often ind.cted for neglect of duty 
 or for positive misfeasance and the 
 punishment upon conviction is by the 
 imposition of a fine. The punish- 
 ment by fine for a contempt is one 
 of the usual modes of punishment 
 and directly recognized by statute." 
 People v. Albany & Vermont R. R. 
 Co., 12 Abb. Prac. (N. Y.) 171, 173. 
 Per Hogeboom, J. 
 
 9. Where an injunction has been 
 granted against the treasurer of a 
 corporation, restraining him from 
 collecting any royalties or dividends 
 of stock due the corporation, and 
 such royalties and dividends are af- 
 
 432
 
 Violations and Punishment of. § 275a 
 
 rier cannot excuse its violation of an injunction upon the ground 
 that its imperative duty to the public demanded such violation. 11 
 So officers and agents of a corporation are bound by an injunction 
 against the corporation restraining it from disposing of property. 12 
 And in a case in New York it is said that the effect of an injunc- 
 tion restraining acts of a corporate body and addressed in the 
 ordinary way to it or its agents i9 to bind not only the intangible 
 artificial being but also all the individuals who act for the corpora- 
 tion in the transaction of its business to whose knowledge the 
 injunction comes. 13 And where an injunction was issued against 
 a railway company, its assigns, agents, employees and any one 
 acting by its authority and in its behalf, but was not against the 
 president of the company by name, it was decided that where he, 
 with notice of the injunction, did what the company was pro- 
 hibited from doing, he could be prosecuted for its violation by 
 him. 14 Receivers of a corporation who are appointed by a Federal 
 court subsequent to the granting of an injunction against the com- 
 pany by a State court are also bound to observe and obey the 
 injunction while it is in force and may be punished for contempt 
 where they disobey it. 15 But an officer of a corporation will not 
 be adjudged in contempt when other servants of the corporation 
 violate an injunction in spite of his efforts to secure obedience 
 to it. JG And the employees of a corporation which has been en- 
 
 terwards paid into its treasury, the 12. Sidway v. Missouri Land & L. 
 
 treasurer and corporation are alike S. Co., 116 Fed. 381. 
 
 guilty of contempt, and, upon a dis- 13. People v. Sturtevant, 9 N. Y. 
 
 solution of the injunction are not en- 263, 59 Am. Dec. 536. 
 
 titled to recover damages for deten- 14. State of Kansas v. Cutter, 13 
 
 tion of the fund. Heck v. Bulkley Kan. 131. 
 
 (Tenn.), 1 S. W. 612. See Hedges v. 15. Safford v. People, 85 111. 558. 
 
 Superior Court, 67 Cal. 405, 7 Pac. 16. A superintendent of a rail- 
 
 767. road company will not be adjudged to 
 
 10. New York City v. New York be in contempt for violation of a de- 
 Ferry Co.. 64 N. Y. 622; People v. cree enjoining the company from op- 
 Albany, etc., R. Co., 12 Abb. Pr. 171; erating its engines in front of a 
 United States v. Memphis, etc., R. house, where the disobedience is that 
 Co.. 6 Fed. 237. of the company's servants, who dis- 
 
 11. Kentucky & Indiana Bridge regarded his orders, he having made 
 Co. v. Krieger, 91 Ky. 625, 16 S. W. an earnest effort to secure obedience. 
 824. Pennsylvania R. Co. v. Thompson, 49 
 
 N. J. Eq. 318, 24 Atl. 544. 
 
 433 
 
 28
 
 § 276 Violations and Punishment of. 
 
 joined may without contempt of court avoid obedience to the 
 injunction by ceasing to be such employees; 17 but such withdrawal 
 must be in good faith and not merely temporary and for the 
 purpose of evading such obedience. 18 A municipal corporation 
 cannot, however, be guilty of contempt in disobeying an injunc- 
 tion ; such contempt, if any, in disobeying a writ directed to such 
 a corporation is the contempt of individual persons, as for instance 
 the officers of the city. 19 So though a municipal corporation can- 
 not be attached for violation of an injunction, its offending officers 
 may be. 20 The deliberate disobedience of an injunctional order 
 by county officers in proceeding with general road work and paying 
 for the same can not be in good faith and there can be no rati- 
 fication of their act by the county board, or any estoppel, which 
 would nullify the command of the court. 21 
 
 § 276. Contempt proceedings against corporation; affidavits. 
 
 — An order to show cause why a corporation should not be 
 punished for contempt in violating an injunction, may be served 
 on the attorney for the corporation in the injunction suit, when its 
 managing agents conceal themselves to avoid service. 22 Where an 
 
 17. Toledo, etc., R. Co. v. Pennsyl- union, and in good faith quit their 
 vania Co., 54 Fed. 730. employment before starting on their 
 
 18. An engineer of a railroad com- run, may not be in contempt. Toledo, 
 pany which has been enjoined from etc., R. Co. v. Pennsylvania Co. (C. 
 refusing to haul the cars of a boycot- C. ) , 54 Fed. 746. 
 
 ted connecting line, of which injunc- 19. Bass v. City of Shakopee, 27 
 
 tion he has notice, although he has Minn. 250, 4 N. W. 619, 6 N. W. 
 
 not been made a party thereto, and 776, citing Davis v. Mayor of New 
 
 who, while on his run, refuses to at- York, 1 Duer (N. Y.), 451, 484, 509 
 
 tach such a car to his train, and de- 510; London v. Lynn, 1 H. Bl. 206. 
 clares that he quits his employment, 20. Bass v. City of Shakopee, 27 
 
 but nevertheless remains with his en- Minn. 250, 4 N. VV. 619, 6 N. W. 776; 
 
 gine at that point for five hours, un- Davis v. Mayor, etc., 1 Duer, 451 ,• 
 
 til he receives a telegram from his London v. Lynn, 1 H. Bl. 206. 
 labor union to haul the car. and who 21. Webster v. Douglass County, 
 
 thereafter continues in his employ- 102 Wis. 181, 77 N. W. 855, 78 N. 
 
 ment, is guilty of contempt for vio- W. 451. 72 Am. St. Rep. 870. 
 lating the injunction, although en- 22. Eureka Lake & Yuba Canal 
 
 gineers who refuse to haul such cars Co. v. Superior Court, 66 Cal. 311, 5 
 
 in obedience to a rule of the labor Pac. 490. 
 
 434
 
 Violations and Punishment or. §§ 276a, 277 
 
 affidavit in contempt proceedings against officers of a corporation 
 for violating an injunction which ran against the corporation, its 
 officers, etc., did not in terms state that the persons complained of 
 were officers of the corporation, but it did state that they knew of 
 the issuing, service and contents of the injunction, and that they 
 did the acts in violation of the injunction which were complained ; 
 it was held to be 1 sufficient. 23 
 
 § 276a. Injunction against partnership; violation of If 
 
 through inadvertence a party permits his partner, agent, or em- 
 ployees to do the enjoined act he is himself guilty of a violation. 24 
 And a permanent injunction restraining a firm from doing certain 
 partnership acts continues to be effective against the persons com- 
 posing it after a change in the partnership name and such persons 
 may be punished for its violation. 25 
 
 § 277. Who can punish violations. — It is regarded as element- 
 ary that only the court which granted the injunction has power 
 to punish its violation as a contempt, or to entertain proceedings 
 for that purpose. 26 Formerly a motion for an attachment for the 
 violation of an injunction issued by a State court could not be 
 allowed by a Federal court after removal of the case to that court ;" 
 but that difficulty has been thought to have been removed by the 
 removal act of 1875, which provides that an injunction granted 
 before removal shall continue in force until modified or dissolved 
 by the Federal court. 28 It was directly decided in 1885, that 
 where a cause has been removed from a State to a Federal court, 
 pending an application to punish a party for disobeying an injunc- 
 
 23. Hedges v. Yuba County Su- 26 Fed. 501; Ex parte Bradley, 7 
 perior Court, 67 Cal. 405. 7 Pac. 767. Wall. 364. 372, 19 L. Ed. 214; Penn 
 
 24. Poertner v. Russell, 33 Wis. v. Messinger, 1 Yeates, 2; Passmore 
 193. Williamson's Case, 26 Pa. St. 9. See 
 
 25. Carter v. Bartel, 110 Iowa, Williams Mower Co. v. Raynor, 7 
 211, 81 N. W. 462. so holding where Biss. 245. 
 
 an injunction restrained a firm from 27. McLeod v- Duncan, 5 McLean, 
 
 the illegal sale of intoxicating liquors. 342. 
 
 26. Kirk v. Milwaukee M'fg Co., 28. U. S. R. S., § 646. 
 
 435
 
 $278 
 
 Violations and Punishment of. 
 
 tion of a State court, the Federal court has no jurisdiction to hear 
 and determine the application. 29 Under a Code provision that 
 " disobedience of an injunction may be punished a9 a contempt by 
 the court, or by any judge who might have granted it in vacation," 
 it has been held that a county judge has no power to commit for 
 contempt one guilty of violating an injunction allowed by him in 
 an action in the District Court, as the contempt in such a case is 
 not against the county judge, but against the District Court, whose 
 order is defied. 30 
 
 § 278. Punishment in Federal courts. — The power of the 
 Federal courts to punish for contempt of their authority in dis- 
 obeying injunctions issued by them, is recognized and declared by 
 statute. 31 The exercise of this power is two-fold : first, the proper 
 punishment of the offender for his disrespect to the court or its 
 order, and second, to compel his performance of the act or duty 
 
 29. Kirk v. Milwaukee M'f'g Co., 
 26 Fed. 501. per Dyer. J.: "A power 
 so extraordinary should be clearly 
 given before it is exercised. In the 
 present state of decision I regard the 
 proposition as indisputable, that this 
 court if it were to attempt to take 
 jurisdiction of this proceeding, could 
 not administer penalties according to 
 the State statute. It would have to 
 be treated as a purely penal proceed- 
 ing. I conceive this to be the logic 
 of the decision of the Supreme Court 
 in Ex parte Fisk 113 U. S. 713, 5 S. 
 Ct. 724, 28 L. Ed. 1117. . . . 
 Congress having legislated on the 
 subject of contempts and made 
 a prosecution for contempt a 
 purely penal proceeding, with no 
 provision for pecuniary indemnity to 
 the party injured, this court (U. S. 
 Circuit Court) is under the restraint 
 of the federal statute, and cannot en- 
 force the State statute." 
 
 30. Johnson v. Bouton, 35 Neb. 
 
 898, 53 N. W. 995. See, also State v. 
 McKinnon, 8 Or. 487. which held that 
 a judge of the Circuit Court, in vaca- 
 tion, has no power to hear and deter- 
 mine charges of contempt for dis- 
 obeying orders of the court, but in 
 such cases the court has exclusive 
 jurisdiction. In Nieuwankamp v. Ul- 
 lman, 47 Wis. 168, an injunction had 
 been granted by a Circuit Court com- 
 missioner to restrain an insolvent 
 debtor from disposing of his prop- 
 erty; the order having been violated 
 the court held that the commissioner 
 could punish for the violation, and 
 that the court also had the power. 
 And see Haight v. Lucia. 36 Wis. 355. 
 31. U. S. Rev. Stat, § 725 where 
 among the cases enumerated as pun- 
 ishable for contempt, are " disobedi- 
 ence or resistance of an officer of the 
 court, or by any party, juror, witness 
 or other person to any lawful writ, 
 process, order, rule, decee or com- 
 mand of the said courts." 
 
 436
 
 Violations and Punishment of. 
 
 §278 
 
 required of him by the court, and which he refuses to perform. 32 
 Where defendant, in violating an injunction, is not guilty of wilful 
 
 32. Ex parte Huidekoper, 55 Fed. 
 709, per Curiam : " It appears that 
 certain personal property in the 
 hands of receivers of this court was 
 distrained for an excess of tax; that 
 the receivers had actually paid all of 
 the admitted tax, and had not paid 
 the excess, because it is alleged that 
 it is not authorized by law. The war- 
 rants or executions were issued by 
 the county treasurers in each in- 
 stance, and were executed by the re- 
 spective sheriffs. Upon petitions filed 
 in this court by the receivers, it was 
 alleged that an amount of property 
 in each instance had been distrained 
 greatly exceeding the amount of tax 
 demands, and that in many instances 
 property in the care of the receivers, 
 belonging to other parties, had been 
 included. At the hearing of the peti- 
 tions, rules to show cause were issued 
 to each county treasurer and sheriff 
 complained of, and at the same time 
 a restraining order was issued, for- 
 bidding them and each of them from 
 disposing of or interfering with the 
 property distrained. These orders 
 were all personally served on the per- 
 sons to whom they were directed. No 
 attention to or obedience of any of 
 the said restraining orders was paid 
 by any one of the sheriffs served. On 
 the contrary, they retained possession 
 of the property in defiance of the or- 
 ders and still retain it. In their re- 
 turns to the rules to show cause 
 they justify their act, profess no de- 
 sire to submit to the ruling of the 
 court and accompany this with a for- 
 mal disclaimer of any contempt. It 
 must be borne in mind, also, that the 
 property distrained was not of a fugi- 
 tive character, and that, as it always 
 
 remains in this State, and is easily 
 reached, there never could arise any 
 difficulty in making a levy when such 
 levy was adjudged to be lawful. In 
 despite of this fact, and of the re- 
 straining order of this court, the 
 property was detained. It was said 
 at the bar that the sheriffs acted 
 under the orders of the comptroller 
 general in making the levy under 
 statute of 1888 (20 St. S. C, p. 54). 
 If this be so, and if, after making the 
 levy and having been served with the 
 order of this court, the sheriffs had 
 obeyed it, we could perhaps have 
 treated this as a technical contempt, 
 and have graduated the punishment 
 accordingly. But, although the 
 comptroller general is the person 
 charged by law with the duty of di- 
 recting sheriffs in collection of taxes, 
 neither he, nor anyone else, can direct 
 or authorize the sheriffs, in tne exe- 
 cution of the precept, to violate the 
 rights of third parties, or to conduct 
 themselves illegally. The sheriff is 
 an indep3ndent officer, holding under 
 a tenure created by the constitution, 
 with a recognized right in this same 
 statute to differ from the comptroller 
 general, and to have such difference 
 settled in a court of law. Whenever 
 he acts, he acts on his own responsi- 
 bility, and cannot shield himself by 
 any instructions of the plaintiff in 
 execution. We can deal with him 
 only. In these cases we are of the 
 opinion that there has be?n open and 
 flagrant — perhaps, we fear, deter- 
 mined — disregard of the process of 
 this court, and that the sheriffs are 
 justly chargeable with high contempt. 
 They cannot escape unpunished. Were 
 this course to be followed, the dig- 
 
 437
 
 §279 
 
 Violations and Punishment of. 
 
 contempt, a nominal fine and costs will be imposed. 33 On motion 
 that the party in contempt stand committed for a breach of the 
 injunction, the moving party must show the allowance of the in- 
 junction in due form, its service, and notice to defendant of the 
 time and place of the motion, 34 and must state in the proofs on 
 which the application is founded, the specific acts of omission or 
 commission which constitute the alleged contempt; and the inter- 
 rogatories which defendant may be required to answer must be 
 limited to the particular offenses so alleged and charged, not on 
 information and belief, but established by direct evidence. 35 
 
 § 279. In England. — In England an order for commitment for 
 violating an injunction cannot be sustained except on the clearest 
 evidence of an actual breach ; 36 and not for every trifling technical 
 breach committed in the ordinary course of business, which has 
 not done any real mischief to the person complaining. 37 If the 
 person enjoined is not personally at fault he will not be adjudged 
 in contempt because his servants or agents have committed a 
 
 nity of the court would be impaired, 
 and its usefulness in great measure 
 destroyed. In our action in this 
 case we will follow the precedent 
 of the Supreme Court in Re 
 Chiles, 22 Wall. 168, 22 L. Ed. 
 819. M. V. Tyler, sheriff of Aiken 
 county, having be^n served with two 
 rules to show cause why he be not 
 attached for contempt for the matters 
 cet forth in copy of petition to each 
 rule attached, and sufficient cause 
 having not been shown, and it fur- 
 ther appearing that he notwithstand- 
 ing continues to hold and detain said 
 property. It is ordered, adjudged, 
 and decreed that he is in contempt of 
 this court, and of its orders and pro- 
 cess. It is furtner ordered that he 
 do pay a fine of $500, and that the 
 clerk of this court shall enter judg- 
 ment thereon, and issue execution 
 therefor, and also stand committed to 
 
 the custody of the marshal of this 
 court until he has paid said fine, or 
 purged himself of his contempt 
 therein." Note. — This case has been 
 affirmed by the Supreme Court, so 
 far as the imprisonment is concerned. 
 Ex parte Tyler, 149 U. S. 164, 13 Sup. 
 Ct. Rep. 785, 37 L. Ed. 689. 
 
 33. Morss v. Domestic Sewing Ma- 
 chine Co., 38 Fed. 482. 
 
 34. Worcester v. Truman, 1 Mc- 
 Lean, 483. 
 
 35. Parkhurst v. Kinsman, 2 
 Blatchf. 76. 
 
 36. Kerr, Injunctions, 643; Hard- 
 ing v. Tingey. 12 Weekly Rep. 6S5; 
 Dawson v. Paver, 5 Hare, 424. An in- 
 tention to violate an injunction is not 
 punishable unless actually carried 
 into effect. Grand Junction Canal Co. 
 v. Dimes. 18 L. J. Ch. 419. 
 
 37. Baxter v. Bower, 44 L. J. Ch. 
 626. 
 
 438
 
 Violations and Punishment of. § 279a 
 
 breach, 38 or because his wife, living separate from him, has 
 violated it. 39 It is a contempt publicly to attribute a falsehood 
 to the applicant for the injunction, or his witnesses, after their 
 affidavits have been filed. 40 The defendant may excuse himself 
 by showing that the injunction has expired. 41 And the plaintiff 
 may estop himself from punishing defendant's breach by acqui- 
 escence therein, and by delay in executing the warrant of commit- 
 ment. 43 
 
 § 279a. Payment of damages. — In some jurisdictions one who 
 has been guilty of contempt in violating an injunction may be 
 subjected to the payment of damages sustained by the other 
 party. 43 So it is determined that the United States Circuit Court 
 has power to direct the payment of a part or all of the fine to the 
 complainant in an application for contempt as a compensation for 
 his time and outlay in prosecuting the application. 44 And in a 
 case in South Carolina where, after an order enjoining all the 
 creditors of a testator from suing the executor, some of the cred- 
 itors sued him, they were ordered to pay not only their own costs 
 at law but the costs of the executor also. 45 
 
 38. Rantzen v. Rothschild, 14 A. 118. The court said that thig 
 Weekly Rep. 96; Ex parte Langley, power "has often been recognized in 
 L. R. 13 Ch. D. 121. the Circuit Courts . . . and in 
 
 39. Hope v. Carnegie, L. R. 7 Eq. practice is a power which ought to 
 254. be exercised when the expenses and 
 
 40. Tichborne v. Tichborne, L. R. trouble to which the complainant 
 
 7 Eq. 55; Littler v. Thompson, 2 has been subjected justify its exer- 
 Beav. 129. cise." Compare Dowagiac Mfg. Co. v. 
 
 41. Daw v. Eley, L. R. 3 Eq. 496. Minnesota Moline Plow Co., 124 Fed. 
 
 42. St. John's College v. Carter, 736, wherein Judge Lochren said: "I 
 
 8 Jur. 1036; Rodgers v. Nowill, 3 do not understand that the office of 
 DeG.. M. & G. 619. a proceeding for contempt ordinarily, 
 
 43. Levy v. New Orleans W. Co., or in a case of this kind, is to com- 
 38 La. Ann. 29; Robins v. Frazier, pensate the party complaining for 
 5 Heisk. (Tenn.) 100; Kaehler v. any injury that he has sustained by 
 Dobberpuhl. 60 Wis. 256. But see reason of the acts of the defendant 
 Kaehler v. Halp : n 59 Wis. 40. which constitute the contempt." 
 
 44. Cary Mfg. Co. v. Acme Inflex- 45. Thomson v. Palmer, 3 Rich, 
 ible Clasp Co., 108 Fed. 873, 48 C C. Eq. (S. C.) 139. 
 
 439
 
 § 280 Violations and Punishment of. 
 
 § 280. Indemnity fine for contempt in New York. — In New 
 York, under the provisions of the Revised Statutes of 1830, whieh 
 have been incorporated into the Code of Procedure, the fine im- 
 posed upon a party violating an injunction must be sufficient to 
 indemnify the aggrieved party, and it must be collected and paid 
 over to him under the direction of the court. 46 And the fine may 
 be enforced by commitment of the offender until he pays it. 47 The 
 statute referred to gives the court no discretion, but requires the 
 infliction of a fine sufficient to indemnify the complainant for the 
 injury sustained by the breach of the injunction, and to satisfy 
 his costs and expenses. And the defendant cannot be discharged 
 from imprisonment, without the complainant's consent, until the 
 fine is actually paid. 48 In this connection it is decided that where 
 a motion is made to punish several defendants for a civil contempt 
 in wilfully disobeying an injunction order directed to and issued 
 against all the defendants proceeded against, and an order 
 adjudging them guilty of such contempt does not state the actual 
 loss or injury of the plaintiff, nor any items from which the 
 amount thereof may be computed or inferred, a single fine may be 
 imposed under the Code 49 upon all of the defendants sued in the 
 proceeding, for which each defendant is severally liable, and in 
 default, any one and all are liable to imprisonment, but one pay- 
 ment is a satisfaction as to all. 60 And even when the plaintiif has 
 
 46. Rev. Stat. 538, §§ 21, 22; Code People ex rel. Cauffman v. Van 
 
 Civ. Pro. § 2284; People v. Spalding. Buren (Sup.), 63 Hun. 635, 18 N. Y. 
 
 2 Paige, 326; Simmons v. Simmons, Supp. 734; aff'd 136 N. Y. 252 263 
 
 4 N. Y. W. Dig. 130. Plaintiffs at- 32 N. E. 775. 
 
 tached gnods which had been levied 47. People ex rel Cauffman v. 
 
 on under an execution, and procured Van Buren, 63 Hun, 635, 18 N. Y. 
 
 an injunction restraining the sale Supp. 734, aff'd 136 N. Y. 252 32 N 
 
 under the execution, on the ground E. 775; Lansing v. Easton, 7 Paige, 
 
 that the judgment on which it was 364; People v. Compton, 1 Ducr, 512 
 
 issued was void. The g ods in ques- affd 9 N. Y. 263. 
 
 tion were sufficient to pay plaintiffs' 48. Lansing v. Easton, 7 Paige (N. 
 
 claim. Held, that a sale in disobedience Y.),364. 
 
 to the injunction would be punished 49. N. Y. Code Civ. Proc, § 2284, 
 
 by a fine to the amount of plaintiffs' subd. 2. 
 
 claim, as plaintiffs, by their attach- 50. Socialistic Co-operative Pub. 
 
 ment had acquired rights which were Ass'n v. Kuhn, 164 N. Y. 473, 58 N. 
 
 injuriously affected by such sale. E. 649. 
 
 440
 
 Violations and Punishment of. § 280a 
 
 suffered no loss, a fine must be imposed upon the offender for Lis 
 breach of the injunction, not exceeding $250, in addition to com- 
 plainant's costs and expenses. 51 So in the case of a technical con- 
 tempt it has been decided that the party violating the injunction 
 may be fined the amount of damages shown to have been sustained 
 by the complainant, together with costs. 52 
 
 § 280a. Same subject continued. — Generally it is a reasonable 
 punishment to require the party in contempt to pay the actual 
 damages sustained by the plaintiff from the violation, with the 
 costs of the contempt proceedings. 53 So where the violation of an 
 injunction order by the defendant is deliberate and intentional 
 the fine imposed may properly include the plaintiff's provable 
 damages and expenses and he may in addition thereto be im- 
 prisoned until he manifests a willingness to comply with the 
 order. 54 And where a defendant has collected and used money in 
 violation of an injunction order it has been held proper in New 
 York to impose a fine for such violation equal to the amount of 
 money so collected. 55 And where a defendant in a suit in chan- 
 cery who had rendered himself liable to a criminal contempt for 
 violating an injunction, issued upon a creditor's bill, was after- 
 wards discharged under the bankrupt act, and after such dis- 
 charge was prosecuted by attachment for the contempt, it was held 
 that the discharge was not a defense against the attachment pro- 
 ceeding and that a fine to the amount of the complainant's judg- 
 ment and costs and a direction that the same be paid to the 
 
 51. Code Civ. Pro.. § 2284; Clark citing Socialistic Co-operative Pub. 
 v. Bininger.. 75 N. Y. 344. Ass'n v. Kuhn, 164 N. Y. 473, 58 N. 
 
 52. Mutual Milk & Cream Co. v. E. 649; Moffat v. Herman, 116 N. Y. 
 Tie jen, 73 App. Div. (N. Y.) 532, 131, 22 N. E. 287; Clark v. Bininger, 
 77 N. Y. Supp. 287, c"t*ng Power v. 75 N. Y. 344; People v. Anthony, 7 
 Village of Athens, 19 Bun (N. Y.), App. Div. 132, aff'd 151 N. Y. 620, 45 
 165; Moffatt v. Herman, 116 N. Y. N. E. 1133; Matter of Leggat. 162 N. 
 131. 2 N. E. 287; Dejonge v. Bren- Y. 437, 56 N. E. 1009; Brown v. 
 neman, 23 Hun (N. Y.), 332. Mechanics & Traders' Bank, 43 App. 
 
 53. Chapel v. Hull, 60 Mich. 167, Div. 173. 59 N. Y. Supp. 354. 
 
 26 N. W. 874. 55. Sheffield v. Cooper, 21 App. 
 
 54. Stolts v. Tuska. 82 App. Div. Div. (N. Y.) 519, 48 N. Y. Supp. 639. 
 (N. Y.) 81, 81 N. Y. Supp. 638, 
 
 441
 
 § 281 Violations and Punishment of. 
 
 complainant for his indemnity was not improper. 56 In this con- 
 nection it is decided that where it is sought to fine a person the 
 amount of damages sustained by a complainant, as a result of the 
 former's violation of an injunction, it is necessary that there should 
 be an adjudication upon competent proof, not only of the facts 
 unequivocally stated which constituted the violation of the in junc- 
 tional order but also that the violation was such as " was calcu- 
 lated to, or actually did, defeat, impair, impede or prejudice the 
 rights or remedies " of the complainant. 57 And it is said that in 
 a proceeding to determine what punishment shall be imposed for 
 a civil contempt, in which the punishment is to be measured by 
 such sum as will compensate the injured party for his actual loss 
 the inquiry must always relate to the condition of things at the 
 time when the penalty is to be imposed and that where a fine is 
 imposed and reference ordered to ascertain the damages evidence 
 is properly admissible before the referee to show that the proper 
 measure of damages by reason of subsequent events is less than 
 it was at the time the order of reference was made. 68 
 
 § 281. Punishing contempt by annulling what has been done. 
 
 — If a person enjoined violate the injunction, whatever he does in 
 committing the violation may be annulled or destroyed, so far as 
 practicable, as expressly provided by statute in Louisiana. 59 Thus, 
 a sale in violation of an injunction will be annulled so far as to 
 prevent the violator from deriving any benefit therefrom. 60 And 
 an execution issued in violation of a pending injunction is void, 
 and will not support a title made under it. 61 And where an in- 
 
 56. Macy v. Jordan, 2 Den. (N. trust-deed has been enjoined, its sale 
 Y.) 570. under execution, issued on the judg- 
 
 57. Mutual Milk & Cream Co. v. ment of foreclosure, while the injunc- 
 Tietjen. 73 App. Div. (N. Y.) 532," 77 tion is still in force, is a contempt 
 N. Y. Supp. 287. of court, and passes no title. Ward 
 
 58. Ray v. New York Bay Exten- v. Billups, 76 Tex. 466, 13 S. W. 308. 
 sion Co., 48 App. Div. (N. Y.) 502, 61. Seligson v. Collins, 64 Tex. 
 62 N. Y. Supp. 924. 315; Morris v. Bradford, 19 Ga. 527; 
 
 59. La. Code of Practice, Art. 308. Farnsworth v. Fowler, 1 Swan 
 
 60. Where the enforcement of an (Tenn.), 1. 
 order of sale on foreclosure of a 
 
 442
 
 Violations and Punishment of. § 281a 
 
 junction was issued against an execution, after the sheriff had 
 made the first proclamation thereunder, and the plaintiff's solicitor 
 refused to order the sheriff not to proceed further, it was held that 
 plaintiff was in contempt, and that he should not have the benefit 
 of any subsequent proclamation. 62 Where a party who has insti- 
 tuted an action in a State court, and is there enjoined from pro- 
 ceeding to judgment until certain assets are marketed, he is in 
 contempt if he brings an action in a Federal court in order to evade 
 the injunction, though the latter court had concurrent jurisdiction 
 of the matter. The State court cannot, in such a case, order the 
 action dismissed in the Federal court. It can only punish those 
 who violate its injunction, leaving it to the other litigant to move 
 in the Federal court for a stay of the proceedings there which are 
 in violation of the injunction, until final disposition of the con- 
 troversy in the State court. 63 A court of law cannot take cog- 
 nizance of a breach of injunction, nor allow it to operate as a for- 
 feiture of legal rights in another suit, when it is not shown that 
 the injunction has been perpetuated by a final decree. 64 
 
 § 281a. Compelling restoration of status. — Where one who has 
 notice that an injunction has been granted against him, though he 
 has not been formally served with the writ, does an act which is a 
 violation of the injunction, and thus changes the status of the prop- 
 erty involved in the case, the judge may at an interlocutory hear- 
 ing, or upon an application for an attachment for contempt, re- 
 quire the offender to restore the status as it existed at the time he 
 first received notice that the injunction had been granted. 65 So 
 where one has been guilty of contempt of court in removing fix- 
 tures in violation of an injunction he may be compelled to restore 
 them, and if it appears that the fixtures have been injured, the 
 party guilty of the contempt must in addition to such restoration 
 meet any expenditure of money required to remedy the wrong 
 
 62. Woodley v. Boddington, 9 Si- 64. Callan v. McDaniel, 72 Ala. 96. 
 mons, 214. 65. Murphey v. Harker, 115 Ga. 
 
 63. Hines v. Rawson, 40 Ga. 356. 77, 41 S. E. 585. Per Cobb, J. 
 
 443
 
 § 282 Violations and Punishment of. 
 
 done. 86 And where structures have been erected by trespassers in 
 violation of an injunction, the party erecting them may be com- 
 pelled to remove the same. 67 And where the defendant had en- 
 deavored to anticipate the action of the court by hurrying on the 
 building to be enjoined, it was held that what he had done should 
 be at once pulled down, without regard to the ultimate result of the 
 action. 68 And where a railroad company lays a track in disregard 
 of an injunction, it may be compelled to purge its contempt by 
 removing the obnoxious track. 69 And when, on an application for 
 an injunction, the chancellor grants a temporary restraining order 
 until the hearing of the application, and the defendant violates it 
 and takes possession of land in defiance of it, the chancellor may 
 direct the sheriff to restore the parties to their status at the time 
 the bill was filed, even though he may refuse the injunction. 70 
 
 § 282. Party in contempt not entitled to jury. — The Kansas 
 rule is that while a proceeding to punish for contempt of an 
 injunction is of a criminal nature, yet it is really incident to the 
 injunction action, and therefore the offender is no more entitled 
 to a jury in trying the charge for contempt than he was in the 
 original action; that the constitutional guaranty of trial by jury 
 does not extend beyond the cases where such right exists at com- 
 mon law, and that the right to punish for contempt, without the 
 intervention of a jury, is a well established rule of the common 
 
 66. Ashby v. Ashby, 62 N. J. Eq. real v. Great Northern R. Co., 4 De- 
 618, 50 Atl. 473. Gex & Sm. 75, a sequestration was 
 
 67. Murdock's Case, 2 Bland's Ch. ordered to issue for the contempt, and 
 (Md.) 461, 20 Am. Dec. 381. was only stayed on appeal, upon the 
 
 68. Daniel v. Ferguson (1891), 2 railroad company paying all the costs 
 Ch. 27. and undertaking to construct a road 
 
 69. Elizabethtown, L. & B. S. R. in conformity with the Railway Con- 
 Co. v. Ashland C. St. Ry. Co., 94 Ky. solidation Act, and in the meantime 
 478 22 S. W. 855, where the com- to provide a free passage at all times, 
 pany was allowed 15 days to remove 70. Byne v. Byne, 54 Ga. 257. 
 the offending track. In Attorney Gen- 
 
 444
 
 Violations and Punishment of. 
 
 283 
 
 law. And this, doubtless, is the general rule. 71 And the same 
 rule prevails in Iowa, where it is held that in punishing the viola- 
 tion as a contempt, the court of equity does not punish it as a 
 crime; if it shall also be punished as a crime, then the offender 
 will be entitled to a jury. 72 
 
 § 283. Violation as contempt pending appeal. — As an appeal 
 from a decree granting an injunction does not disturb its operative 
 effect, the general rule is that it may be violated pending the appeal 
 as well as before. 73 Under a Code provision defining a supersedeas 
 
 71. State ex rel Curtis v. Durein, 
 46 Kan. 695, 27 Pac. 148, where the 
 court cites and relies upon Kimball v. 
 Connor, 3 Kan. 414; State v. Cutler, 
 13 Kan. 131; Burrows, In re, 33 Kan. 
 675, 7 Pac. 148; McDonnell v. Hen- 
 derson. 74 Iowa, 619. 38 N. W. 512; 
 State v. Becht, 23 Minn. 411; State 
 v. Doty, 32 N. J. L. 403; State v. 
 Matthews, 37 N. H. 451; Gandy v. 
 State, 13 Neb. 445; Arnold v. Com- 
 monwealth, 80 Ky. 300; King v. Rail- 
 way Co.. 7 Biss. 529; Neel v. State, 
 9 Aik. 259; Crow v. State, 24 Tex. 
 12; Hart v. Robinett, 5 Mo. 11; Eik- 
 enbery v. Edwards, 67 Iowa, 619, 25 
 N. W. 832. In State v. Durein. 46 
 Kan. 695, 27 Pac. 148. it appeared 
 that on April 1, 1891, the county at- 
 torney filed an affidavit with ;he clerk 
 of the District Court, charging that 
 Durein had violated the perpetual in- 
 junction which had been issued, and 
 thereupon the court issued an a tach- 
 ment to bring him before the court 
 and show cause why he should not 
 be punished for the alleged contempt. 
 On April 13. 1891, Durein appeared 
 and a hearing was had upon the 
 charge, and it was found that Durein 
 had willfully used and permitted 
 others to use his premises for the 
 sale of intoxicating liquors, in viola- 
 tion of the decree, and he was ad- 
 judged guilty of contempt, and the 
 penalty imposed was that he should 
 
 be confined in the county jail 40 days, 
 pay a fine of $500, and that a fee of 
 $100 be taxed for the county attor- 
 ney, as part of the costs, and that Du- 
 rein should stand committed until the 
 fine and costs were paid. On appeal, 
 this sentence was affirmed, except 
 that the fee of $100 for the attorney 
 was stricken out. 
 
 72. Manderscheid v. District 
 Court, Plymouth Co., 69 Iowa, 240, 
 28 N. W. 551. 
 
 73. United States. — Knox County 
 v. Harshman, 132 U. S. 14, 10 S. Ct. 
 8, 33 L. Ed. 249. 
 
 California. — Merced Min. Co. v. 
 Fremont, 7 Cal. 130. 
 
 Kentucky. — Smith v. Western Un. 
 Tel. Co., 83 Ky. 269. 
 
 Louisiana. — State v. Houston, 37 
 La. Ann. 852. 
 
 Missouri. — State v. Dillon, 8 S. W. 
 781. 
 
 New York. — Howe v. Searing, 19 
 N. Y. Super. Ct. 684; State v. Car- 
 Ian, 4 N. Y. Super Ct. 738. 
 
 South Carolina. — Klinck v. Black, 
 14 S. C. 241. 
 
 Violation during appeal. — Vio- 
 lation of an injunction during an ap- 
 peal therefrom may be punished as 
 a contempt by the court to which the 
 appeal is taken. Mermez v. Grimes 
 Candy Co. (Ohio, 1907), 83 N. E. 
 82. 
 
 445
 
 § 283 Violations and Punishment of. 
 
 as a written order commanding the appellee and all others to stay 
 proceedings on the judgment or order, the entire force of a judg- 
 ment dissolving an injunction is rendered nugatory for the time 
 by the execution and service of the supersedeas, the injunction 
 is left where it was before the suspended judgment was rendered, 
 and the appellee is guilty of contempt if he violates it. 74 And 
 where an injunction is made perpetual the party enjoined is guilty 
 of contempt if he violates it, though he has taken an appeal, and 
 executed a supersedeas bond. 75 A perpetual injunction is not 
 suspended by reason of an appeal from the judgment granting it, 
 and the court in which the judgment was rendered may punish as 
 a contempt a disobedience of the injunction in such a case. 76 In 
 Louisiana it is decided that during the pendency of a suspensive 
 appeal from a judgment dissolving an injunction, the injunction 
 operates as if never dissolved and that it is not the duty of a 
 judge to proceed with the execution of a writ thus enjoined. 77 
 Under the California Code of Procedure providing that the per- 
 fecting of an appeal (with certain exceptions not covering an 
 appeal from an injunction) stays proceedings in the court below, 
 an appeal from an order granting an injunction stays proceedings 
 
 74. Elizabethtown L. &, B. S. R. One who has been enjoined 
 
 Co. v. Ashland & C. St. Ry. Co., 94 from building a house on an 
 
 Ky. 478, 22 S. W. 855. alley, and ordered to remove it, 
 
 Where, after the • dissolution will not, pending appeal, be held to 
 of an injunction, a supersedeas answer for contempt in putting addi- 
 bond is given by plaintiff and tional stories thereon, as this adds 
 the order of supersedeas is served nothing to the obstruction, and, in 
 on defendant, the injunction is case of affirmance, the removal of the 
 in full force, and a violation of it whole building may be required. Ban- 
 renders defendant guilty of contempt. non v. Rohmeiser, 10 Ky. Law Rep. 
 Smith v. Western Union Tel. Co., 83 395, 9 S. W. 293. 
 Ky. 269; Yocum v. Moore, 4 Bibb. 75. Smith v. W. Un. Tel. Co., 83 
 (Ky.) 221. Ky. 269, 273. 
 
 An appeal, with supersedeas 76. Heinlen v. Cross, 63 Cal. 44; 
 
 does not annul an order of injunc- Kentucky & Indiana Bridge Co. v. 
 
 tion; and a party who disobeys Krieger, 91 Ky. 625, 16 S. W. 824; 
 
 the order by an act done after the State v. Dillon, 96 Mo. 56; Klinck 
 
 appeal may be punished for con- v. Black, 14 S. C. 241. 
 
 tempt. Central Union Telephone Co. 77. State v. Judge of Twelfth Dis- 
 
 v. County of Tippecanoe, 110 Ind. trict Court, 38 La. Ann. 31. 
 203, 10 N. E. 922. 
 
 446
 
 Violations and Punishment of. § 283a 
 
 on all parts of the order commanding some act to be done, and the 
 court has no power, pending appeal, to punish for the omission 
 to comply with such order. 78 In Indiana it is decided that the 
 section of the Code authorizing appeal from interlocutory orders, 
 which requires an appeal bond to be filed when the appeal is taken 
 does not require any additional bond in order to suspend the pro- 
 ceedings for thirty days ; but an appeal from an order of injunc- 
 tion does not allow a party to do an act which by the injunction 
 he is forbidden to do. 79 But while a supersedeas perfected on 
 appeal from an order dissolving an injunction has the effect to 
 reinstate it, it does not retroact so as to deprive strangers to the 
 litigation of intervening rights bona fide acquired. 80 A suspensive 
 appeal from an order dissolving an injunction is held not to divest 
 the court issuing the injunction of jurisdiction so far as to prevent 
 its punishing a disregard of the injunction as a contempt. 81 In a 
 proceeding for the violation of an injunction pending an appeal 
 the merits of the case cannot be considered. 82 
 
 § 283a. Same subject continued. — When an execution on a 
 judgment at law has been enjoined, and the injunction, though 
 dissolved by the chancellor, has been restored pending an appeal 
 from his decree, the issue of another execution before the appeal 
 has been determined is a violation of the injunction and punish- 
 able as a contempt of the court. 83 In a case in Iowa defendant was 
 enjoined from making beer, and during the pendency of an appeal 
 he continued to do so under the belief that such appeal stayed all 
 proceedings against him. Suit was then begun to punish him 
 as for a contempt, and the trial court discharged him, from which 
 decision an appeal was taken, and the judgment was reversed. 
 During the pendency of this proceeding and appeal he still con- 
 tinued to brew beer, and a second proceeding was begun to punish 
 
 78. Dewey v. Superior Court, 81 852. Compare State v. Harness, 42 
 Cal. 64, 22 Pac. 333. W. Va. 414, 26 S. E. 174. 
 
 79. State v. Chase, 41 Ind. 356. 82. Kentucky Heating Co. v. 
 
 80. Smith v. Whitfield, 38 Fla. Louisville Gas Co., 109 Ky. 428, 59 
 211, 20 So. 1012. S. W. 490. 
 
 81. State v. Houston, 37 La. Ann. 83. Balkum v. Harper's Adm'r, 50 
 
 Ala. 372. 
 
 447
 
 § 284 Violations and Punishment of. 
 
 him therefor as for a contempt. It was adjudged that he was 
 guilty of contempt, though he acted in good faith and on the 
 advice of counsel. 84 
 
 § 284. Appeals from orders in contempt proceedings. — It 
 
 would seem that an order of commitment for violation of an in- 
 junction made by the United States courts is not subject to appeal 
 to the Supreme Court, unless the appellate jurisdiction of that 
 court has been enlarged by the Judiciary Act of March 3, 1891 ; 86 
 and in such a case the writ of habeas corpus is not to be used to 
 perform the office of a writ of error or appeal in favor of one who 
 has been imprisoned under the order of commitment, unless the 
 court making the order was without jurisdiction of the person or 
 of the subject matter. 86 In Wisconsin an order adjudging a de- 
 fendant guilty of criminal contempt in wilfully disregarding an 
 injunction is not appealable, 87 being considered an order in a 
 criminal proceeding though made in a civil action. 88 As late as 
 1864 the contrary rule prevailed in Wisconsin; 89 and that earlier 
 rule was in harmony with the New York practice, 90 under which 
 the defendant could appeal from the final determination that he 
 was in contempt, but not from the initiatory order which brought 
 him info court to answer for the contempt. 91 But except where 
 discretion has been grossly abused by the court in rendering judg- 
 ment on the hearing of contempt proceeding the judgment will not 
 
 84. Lindsay v. Hatch, 82 Iowa, 413; In re Fenilon, 37 Wis. 231. In 
 332, 52 N. W. 226; State v. Bowman, In re Murphey, above cited, t'ie court 
 79 Iowa, 567, 44 N. W. 813. refers to and distinguishes Ballston 
 
 85. Ex parte Tyler, 149 U. S. Spa Bank v. Marine Bank, 18 Wis. 
 164, 13 S. Ct. Rep. 785, 789, 37 L. 490; Witter v. Lyon, 34 Wis. 564, 
 Ed. 6S9. as not in point, though they would 
 
 86. Nielsen, Petitioner, 131 U. S. seem to have been in point but for 
 176; 9 S. Ct. 672, 33 L. Ed. 118. the contrary opinion of the court. 
 Ex parte Terry. 128 U. S. 289; 9 S. 89. Shannon v. Wisconsin, 18 Wis. 
 Ct. 77, 32 L. Ed. 405; Ex parte 604. 
 
 Parks, 93 U. S. 18, 23 L. Ed. 787. 90. People v. Sturtevant, 9 N. Y. 
 
 87. Town of Williamstown v. 263, 59 Am. Dec. 536; People v. 
 Darge, 71 Wis. 643, 38 N. W. 187. Compton, 1 Duer, 512. 
 
 88. In re Murphey, 39 Wis. 286; 91. McCredie v. Senior, 4 Paige, 
 and see State v. Brophy, 38 Wis. 378. 
 
 448
 
 Violations and Punishment of. § 284a 
 
 be disturbed. 92 In England an order declaring that defendant has 
 committed a breach of the injunction, but giving no directions 
 except that defendant should pay the costs of the application, may 
 be appealed from, and is not within the rule against appeals for 
 
 costs. 93 
 
 § 284a. Judgment; recital of facts in. — Only when a contempt 
 is committed in the immediate view and presence of the court or 
 judge in chambers, and where the punishment is summarily in- 
 flicted, is it necessary for the judgment to recite the facts consti- 
 tuting the contempt. In cases of constructive contempt where an 
 affidavit is presented setting forth the facts constituting the con- 
 tempt, it is not necessary that the judgment should recite the 
 facts. 94 
 
 92. Warner v. Martin, 124 Ga. 387, Co., L. R. 29 Ch. D. 60. 
 
 62 S. E. 446. 94. Shore v. People, 26 Colo. 616, 
 
 9a. Witt v. Corcoran, L. R. 2 Ch. 69 Pac 49. 
 Div. 69; Stevens v. Metropolitan R, 
 
 449 
 29
 
 Dissolution. 
 
 CHAPTER IX. 
 
 Dissolution. 
 
 Section 285. General rule. 
 
 286. When injunction will be retained. 
 
 287. Same subject. 
 
 288. Dissolution where the sole relief is injunctive. 
 
 289. Dissolution where court has been imposed on. 
 
 290. Court's discretion as to dissolution — Limit of. 
 
 291. Discretion further considered and illustrated. 
 
 291a. Dissolution — Where party entitled to another injunction. 
 
 292. Amending defects on hearing motion to dissolve. 
 
 293. Dissolution for irregularity — Alabama rule. 
 293a. Fatal defects or irregularities. 
 
 293b. Vagueness as ground for dissolution. 
 
 294. Dissolution where no bond is given — Defective or insufficient 
 
 bond. 
 
 295. Dissolution on defendant's bond. 
 
 296. Same subject — In Louisiana. 
 
 297. Dissolution for laches. 
 
 298. Dissolution where subpoena not served. 
 
 299. Motion to dissolve before answer. 
 
 300. Same subject. 
 
 301. Rebuttal of answer on motion to dissolve. 
 
 302. Affidavits on motion to dissolve. 
 
 303. Dissolution on papers of original application. 
 
 304. Answer as equivalent only to an affidavit — Counter affidavits, 
 
 305. Dissolution on denials of answer. 
 
 306. Dissolution on defendant's denial of equities of bill. 
 306a. Same subject continued. 
 
 307. Same subject — Discretion of court. 
 
 308. Same subject. 
 
 309. Answers not responsive. 
 
 310. Same subject — Exceptions. 
 
 311. Dissolving an answer after exceptions to it. 
 
 312. Answers not denying admit — Evasive answers. 
 
 313. Answers admitting and then avoiding by new defense. 
 
 314. Qualified answers — On information and belief. 
 
 315. Dissolution on answer. 
 
 316. Dissolution on answer though bill waive oath. 
 
 317. Evidence admissible on motion to dissolve. 
 
 318. Dissolution of injunction on bill of discovery. 
 
 319. Dissolving injunction on ground of adequate legal remedy. 
 
 450
 
 Dissolution. % 285 
 
 Section 320. Motion to dissolve for want of jurisdiction. 
 
 321. Dismissing bill on dissolution of injunction. 
 
 322. Same subject — In Texas. 
 
 323. Dissolution where several defendants. 
 
 324. Same subject — Qualifications and exceptions. 
 
 325. Same subject. 
 
 326. Same subject. 
 
 326a. Where additional parties are brought in. 
 
 327. Dissolution of common and special injunctions. 
 
 328. Where enforcement of judgment stayed. 
 
 329. Same subject. 
 
 330. Dissolution by implication — By sustaining demurrer. 
 330a. Same subject — Injunction in force until a certain time. 
 330b. Same subject — Dismissal of bill — Effect of decree. 
 330c. Same subject continued. 
 
 331. Dissolution of injunctions affecting realty. 
 
 332. Dissolution of injunction granted on charges of fraud. 
 
 333. Dissolution on removal of cause to Federal court. 
 
 334. Dissolution not affected by mere appeal. 
 
 335. Notice of motion to dissolve — General rule. 
 
 336. Same subject. 
 
 337. Who may apply for dissolution. 
 
 337a. Same subject — Where defendant in contempt. 
 337b. Same subject continued. 
 
 338. Dissolution by whom granted. 
 
 339. Dissolution at chambers — In vacation — Notice. 
 
 340. Abatement of injunction on plaintiff's death. 
 
 341. Abatement by death of defendant. 
 341a. Continuance of motion to dissolve. 
 
 342. Second motion to dissolve. 
 
 343. Restitution by plaintiff on dissolution. 
 
 344. Reinstatement on dissolution. 
 
 Section 285. General rule. — It is a general rule that sufficient 
 ground for dissolving a temporary injunction exists where there 
 is a want of equity in complainant's bill. 1 And an injunction 
 
 1. United States. — Kidwell v. 327; Cabriness v. Crawford, 21 Ga. 
 
 Masterson, Fed. Cas. No. 7758, 3 312. 
 
 Cranch C. C. 52. Illinois. — Edwards v. Haeger, 180 
 
 Alabama. — Morrison v. Coleman, 87 111. 99, 54 N. E. 176; Fahs v. Rob- 
 Ala. 655, 6 So. 374, 5 L. R. A. 384; erts, 54 111. 192. 
 
 Bishop v. Wood, 59 Ala. 253. See Indiana. — Sutherland v. Logro & 
 
 also Louisville & N. R. Co. v. Besse- M. P. R. Co., 19 Ind. 192. 
 
 mer, 108 Ala. 238, 18 So. 880. Kansas.— Henderson v. Marcel, 
 
 Georgia.— Miller v. Maddox, 21 Ga. 1 Kan. 137. 
 
 451
 
 § 285 Dissolution. 
 
 should also be dissolved if the court, on all the evidence before it, 
 would not have granted it in the first instance. 2 And if there is 
 any doubt whether or not the plaintiff is entitled to the injunction, 
 not he, but the defendant, should have the benefit of it. 3 But in 
 solving the doubt the court of original jurisdiction has a large 
 discretion with which an appellate court is reluctant to interfere. 
 Thus where the complaint states facts sufficient to authorize a 
 temporary injunction, and the answer raises serious issues, the 
 determination of which is doubtful, it is not error to continue the 
 injunction till the hearing upon the merits, especially when it 
 appears that the subject matter of the action will remain unim- 
 paired. 4 Ordinarily if the defendant makes a case for dissolution, 
 it should not be denied merely upon the ground of expediency. 5 
 But if the action has been discontinued and the costs paid by 
 plaintiff, the court will not hear a motion to dissolve an injunction 
 which has already thereby ceased to operate, for the mere purpose 
 of deciding whether plaintiff had a right to it. 6 And if an in- 
 junction is withdrawn the defendant may enter an order dissolving 
 it, as of course, upon the stipulation vacating it. 7 Though the 
 omission of the prayer for injunction in the prayer for process 
 is a good ground for refusing an injunction, it is not a good ground 
 for dissolving the injunction. 8 
 
 Michigan. — Cooper v. Alden, Har. 67. A preliminary injunction will 
 
 Ch. 72. not stand when either the complain- 
 
 Texas. — O'Neal v. Wills Point ant's right is in doubt or the injury 
 
 Bank, 64 Tex. 644. which may result from the invasion 
 
 West Virginia. — Morehead v. De of that right is not irreparable, and 
 
 Ford, 6 W. Va. 316. still more where a court of law has 
 
 2. Moser v. Polhamus, 4 Abb. Pr. decided against the plaintiff's right. 
 N. S. 442; Cary v. Domestic Spring Hagerty v. Lee, 45 N. J. Eq. 1, 255, 
 Bed Co., 26 Fed. 38. An injunction 17 Atl. 826. 
 
 will be dissolved upon the bill itself 4. Whittaker v. Hill, 96 N. C. 2, 
 
 where material allegations in the bill 1 S. E. 639. 
 
 are stated to be on information and 5. Taylor v. Hutton, 43 Barb. 195. 
 
 belief, without affidavit to sustain 6. Hope v. Acker, 7 Abb. Pr. 308. 
 
 them. Williams v. Lockwood, 7. Shearman v. New York, etc., 
 
 Clarke's Ch. 172; Waddell v. Bruen, Mills, 11 How. Pr. (N. Y.) 269. 
 
 4 Edw. Ch. 671. 8. Taylor v. Snyder, Walk. Ch. 
 
 3. Secor v. Weed, 7 Robt. (N. Y.) (Mich.) 490. 
 
 452
 
 Dissolutions. 
 
 286 
 
 § 286. When injunction will be retained. — The court in the 
 exercise of its discretion may decline to dissolve an injunction 
 and may retain it until final hearing, where the complainant has 
 made a showing of equities which seems to require further inves- 
 tigation, 9 though his case is by no means wholly clear, if there is 
 a fair probability that he is entitled to relief; 10 and where the 
 answer denying the equity of the bill is not wholly ingenuous 
 and explicit; 11 and where the dissolution would operate to deprive 
 the plaintiff, in case he should finally prevail, of the benefits which 
 he seeks to obtain by the suit, 12 as where it would enable defendant to 
 place the property in controversy beyond the control of the court, and 
 would be equivalent to a denial of all relief to complainant ; 13 where 
 irreparable injury would result to the plaintiff by the dissolution 14 
 or no material injury would result to the defendant by the continu- 
 ance of the injunction ; 15 and when the injunction bill prays relief 
 against a suit at law as well as discovery, and in regard to a matter 
 which peculiarly belongs to equity jurisdiction; 16 and where the 
 
 9. McKibbin v. Brown, 14 N. J. 
 Eq. 14; Mulford v. Bowen, 9 N. J. 
 Eq. 797; Snyder v. Seeman, 41 N. 
 J. Eq. 405, 5 Atl. 637. See Decatur 
 v. Rogers, 75 111. App. 658. 
 
 10. Huffman v. Hummer, 17 N. J. 
 Eq. 263; Camden, etc., R. Co. v. At- 
 lantic City, etc., Co., 26 N. J. Eq. 69. 
 
 11. Fleischman v. Young, 9 N. J. 
 Eq. 620; Richardson v. Peacock, 26 
 N. J. Eq. 40; Kuhl v. Martin, 26 N. 
 J. Eq. 60. 
 
 12. Mississippi. — Board of Super- 
 visors of Madison County v. Paxton, 
 56 Miss. 679. 
 
 New Jersey. — Hoagland v. Titus, 
 14 N. J. Eq. 81; Fleischman v. 
 Young, 9 N. J. Eq. 620. 
 
 New York. — Hart v. Ogdensburg & 
 L. C. R. Co., 66 Hun, 628, 20 N. Y. 
 Supp. 918. 
 
 North Carolina. — Heilig v. Stokes, 
 63 N. C. 612. 
 
 Ohio. — Hepburn v. Vonte, 7 Ohio 
 N. P. 590. 
 
 Texas. — Friedlander v. Ehren- 
 wcrth, 58 Tex. 350. 
 
 13. Hoagland v. Titus, 14 N. J. 
 Eq. 81; Keron v. Coon, 26 N. J. Eq. 
 26. 
 
 14. California. — Hicks v. Comp- 
 ton, 18 Cal. 206. 
 
 Delaware. — Herney v. Rash, 3 Del. 
 Ch. 321. 
 
 Florida. — Linton v. Denham, 6 Fla. 
 533. 
 
 Louisiana. — De La Croix v. Vil- 
 lere, 11 La. Ann. 39. 
 
 New York. — Metropolitan El. R. 
 Co. v. Manhattan R. Co., 65 How. 
 Prac. 277. 
 
 North Carolina. — Williamston & 
 T. R. Co. v. Battle, 66 N. C. 540; 
 McBrayer v. Hardin, 42 N. C. 1, 53 
 Am. Dec. 389. 
 
 15. Corbet v. Oil City Fuel S. Co.. 
 6 Pa. Super. Ct. 19. 
 
 16. Brown v. Edsall, 9 N. J. Eq. 
 256. 
 
 453
 
 § 287 Dissolutions. 
 
 right to the injunction depends upon new and important questions 
 of law awaiting adjudication in another tribunal ; 17 and ordinarily 
 the court will defer the determination of difficult questions to the 
 final hearing, when the evidence will be fully before the court. 18 
 Though the court has power to construe a written instrument upon 
 a motion to dissolve, a wise discretion will often lead it to defer 
 the construction till the final hearing. 19 And where the effect 
 of a dissolution will be to permit defendant to proceed at law 
 against a fund in controversy and compel the holders of the fund, 
 in order to protect themselves against loss from conflicting claims, 
 to seek the aid of the court in another suit, the injunction will be 
 retained. 20 But as the purpose of a restraining order pendente lite 
 is ordinarily to preserve property in its existing condition until a 
 determination of the cause, such an order will be modified if it 
 gives one party an undue advantage over the other in the mean- 
 lime. 21 
 
 § 287. Same subject. — And an injunction may be conditionally 
 dissolved and retained until the condition is complied with. 22 An 
 injunction to restrain suits against plaintiff may be retained as to 
 some of the suits and dissolved as to others. 23 Where the dispute 
 
 17. Morris, etc., R. Co. v. Haskins, amount so found against the com- 
 26 N. J. Eq. 295. pany in such form that execution can 
 
 18. Huffman v. Hummer, 17 N. J. be issued upon the decree; but the or- 
 Eq. 263. der should be that, when the com- 
 
 19. Morris Canal Co. v. Matthie- pany pays to the owner, or deposits 
 sen, 17 N. J. Eq. 385. in court, as the case may be, the sum 
 
 20. Mosser v. Pequest Min. Co., 26 found by the jury, the injunction 
 N. J. Eq. 200. See Plunkett v. Dil- shall be wholly dissolved, but until 
 Ion, 3 Del. Ch. 496. that time it is continued in full force 
 
 21. Northern Pac. R. Co. v. Spo- and effect. Ward v. Ohio River R. 
 kane, 52 Fed. 428. Co., 35 W. Va. 481, 14 S. E. 142, 
 
 22. In a suit by the owner of following Mason v. Bridge Co., 20 
 property against an internal im- W. Va. 243. 
 
 provement company to enjoin it from 23. A bill of interpleader alleged 
 prosecuting work that will irrepar- that defendant J. contracted in writ- 
 ably injure his property, where the ing to build some houses for plain- 
 court has directed an issue of quart- tiff; that notices had been served on 
 turn damnificatus, it is error, upon plaintiff by certain creditors of J., 
 the finding of the jury, to decree the whose claims for materials furnished 
 
 454
 
 Dissolutions. 
 
 §28^ 
 
 is not about facts, but is essentially a question of legal construc- 
 tion, the matters in controversy are not of such a nature that they 
 can be met and denied by the answer so as to entitle the defendant 
 to a dissolution as a matter of course. 24 And however positive 
 and satisfactory the answer may be in its denial of the equities 
 of the bill, the court in the exercise of its discretion may refuse 
 to dissolve when the injunction will probably cause less incon- 
 venience to defendant than would result to complainant from its 
 dissolution. 25 
 
 for the houses aggregated $4,597.06; 
 that there was due from plaintiff on 
 the contract $3,593.83; that J.'s 
 creditors intended to sue plaintiff 
 for their claims, and some had al- 
 ready begun actions; that plaintiff 
 was ready to pay, but could not 
 safely do so ; and sought to have de- 
 fendants interpleaded. On filing the 
 bill, and paying into court the 
 amount stated to be due, an injunc- 
 tion issued restraining the prosecu- 
 tion of suits against plaintiff by de- 
 fendant J. or the lien claimants. De- 
 fendant J. answered the bill, alleged 
 that the complaint incorrectly stated 
 the amount due from plaintiff, that 
 there was due him $4,500, as well as 
 $393.06 for extra work, and that he 
 had filed a mechanic's lien for that 
 amount, and claimed that he should 
 not be restrained from prosecuting it. 
 Held that, as plaintiff's liability to 
 J.'s creditors arose under the me- 
 chanic's lien, and was limited to the 
 amount due to J., plaintiff was en- 
 titled to have the case retained until 
 the amount of the indebtedness to J. 
 was ascertained, and, to that end, 
 that the injunction should be dis 
 solved as to J.'s prosecuting that 
 suit, but retained as to the other de 
 fendants. Aleck v. Jackson, 49 N. J. 
 Eq. 507, 23 Atl. 760. 
 
 24. Boston Franklinite Co. v. New 
 Jersey Zinc Co., 13 N. J. Eq. 215. 
 
 25. New England Mortgage Co. t. 
 Powell, 97 Ala. 483, 12 So. 55, per 
 Head, J.: "The answer fully de 
 nied the fact of payment of the se- 
 cured debt. The court held that the 
 case comes especially within the doc- 
 trine of Harrison v. Yerby, 87 Ala. 
 185, 6 So. 3, in which it was held 
 that the chancery court is invested 
 with wide latitude in acting upon 
 motions to dissolve injunctions on 
 the denials of the answer, and that, 
 whenever it appears that a continu 
 ance of the writ will probably cause 
 less injustice and inconvenience to 
 the defendant than would result to 
 the complainant from its dissolution, 
 this discretion is well exercised in 
 denying the motion for dissolution. 
 In the present case, complainant has 
 certainly the right to try the ques- 
 tions raised upon the validity of the 
 mortgage. If there be a foreclosure 
 pending that trial, he must needs 
 surrender possession to the purchaser 
 within 10 days, or else forfeit his 
 right to redeem under the statute, if 
 upon the hearing of his cause he 
 should fail, and the validity of the 
 mortgage be established. If he should 
 succeed in obtaining the relief 
 prayed, he will have suffered such en- 
 forced temporary dispossession, with 
 the injurious consequences which 
 readily suggest themselves to the 
 practical mind. It is his home, and 
 
 455
 
 §288 
 
 Dissolutions. 
 
 § 288. Dissolution where the sole relief is injunctive. — When 
 the injunctive relief sought is not merely auxiliary to the principal 
 relief demanded in the action, but is the relief itself, the court will 
 not dissolve a preliminary injunction, but will continue it to the 
 hearing on the merits, where there is any reasonable possibility 
 that the plaintiff is entitled to the relief demanded. 26 An injunc- 
 tion should not be dissolved but be continued until final hearing 
 where a dissolution will defeat all practical relief under the final 
 
 he would be deprived of shelter. His 
 teams would probably remain idle. 
 His laborers would probably find 
 other fields of employment. His 
 farming operations would be f or a 
 time broken up, and he would suffer 
 inconvenience and loss necessarily in- 
 cident to their re-establishment. We 
 perceive no such special inconvenience 
 or loss the defendant would suffer by 
 the suspension of foreclosure until 
 this cause can be heard on its merits; 
 and, if there be damage resulting to 
 it from the injunction, it is such as 
 can be readily measured and ascer- 
 tained, and fully compensated for by 
 action on the injunction bond. We 
 are of opinion, therefore, that the 
 injunction ought to be retained un- 
 til the hearing; and the order or de- 
 cree of the chancellor is affirmed." 
 
 26. Marshall v. Commissioners, 89 
 N. C. 103, per Merrimon, J. : " If the 
 defendants shall be permitted to go 
 on, pending the action, and sell the 
 lots of land as they propose to do, 
 and it shall turn out in the end that 
 there is injury to the plaintiffs, and 
 that irreparable, the court could not 
 grant adequate relief. When the 
 court can see that the injury appre- 
 hended and complained of may arise, 
 it will not, by its own act, cut itself 
 off from the opportunity to grant re- 
 lief; on the contrary, it will take all 
 proper measures to uphold its power 
 
 to grant or deny relief in the orderly 
 course of procedure. In a case where 
 the plaintiff alleges irreparable in- 
 jury, and this is made apparent by 
 the complaint and affidavits to sup- 
 port the same, the court will not dis- 
 solve the injunction upon the answer 
 of the defendant admitting some of 
 the material allegations of the com- 
 plaint, however the same may be sup- 
 ported by affidavits; but the injunc- 
 tion will be continued to the hearing 
 of the action upon the merits; and 
 this is so especially when the main 
 relief sought is injunctive in its 
 character. The injunctive relief 
 sought in this action is not merely 
 auxiliary to the principal relief de- 
 manded, but it is the relief, and a 
 perpetual injunction is demanded. To 
 dissolve the injunction, therefore, 
 would be practically to deny the re- 
 lief sought and terminate the action. 
 This the court will never do, where it 
 may be that possibly the plaintiff is 
 entitled to the relief demanded. In 
 such cases, it will not determine the 
 matter upon a preliminary hearing 
 upon the pleadings and ex parte affi- 
 davits ; but it will preserve the matter 
 intact until the action can be regu- 
 larly heard upon its merits. Any 
 other course would defeat the end to 
 be attained by the action. Troy v. 
 Norment, 2 Jones' Eq. 318; Lowe v. 
 i ommissioners, 70 N. C. 532." 
 
 456
 
 Dissolutions. 
 
 §289 
 
 decree if obtained by plaintiff. 27 And to dissolve an injunction 
 with the inevitable result of defeating plaintiff's remedy, without 
 a trial, an appellate court must be wholly satisfied that the case 
 is one in which by settled adjudication the plaintiff upon the facts 
 presented is not entitled to final relief. 28 
 
 § 289. Dissolution where court has been imposed on — A 
 temporary injunction obtained by means of falsehood and misrep- 
 resentation, or by suppression of material facts, will be dissolved 
 almost as a matter of course as an imposition upon the court and 
 a fraud on the law. 29 So where the proceeding in which an injunc- 
 
 27. Supervisors v. Paxton, 56 Miss. 
 679, where the court said : " To 
 dissolve the injunction in this case 
 and allow the defendant to dispose of 
 these bonds, the title to which passes 
 by delivery to an innocent purchaser, 
 would effectually thwart the sole ob- 
 ject of the litigation, and render fur- 
 ther prosecution of it a farce." 
 
 28. Youngs v. Rondout & K. Gas- 
 light Co., 129 N. Y. 57, 29 N. E. 83; 
 Hudson R. Tel. Co. v. Watervliet 
 Turnpike R. Co., 121 N. Y. 397, 24 N. 
 E. 832. 
 
 On a motion to dissolve an in- 
 junction pendente lite, where it ap- 
 pears that but for the injunction the 
 relief sought by the action would be 
 lost, and it does not clearly appear 
 that plaintiff is not entitled to such 
 relief, the motion should be denied. 
 Hart v. Ogdensburg & L. C. R. Co., 
 6~ Hun, 628, 20 N. Y. Supp. 918. 
 
 29. Ciancimino v. Man, 20 N. Y. 
 Supp. 702. In this case on the hear- 
 ing of an order to show cause why 
 the injunction should not be con- 
 tinued pendente lite, a motion to con- 
 tinue the same was held to be prop- 
 erly denied, and the injunction prop- 
 erly dissolved, where it appeared that 
 for a year preceding the application 
 
 for such injunction the plaintiff on 
 whose affidavit the same was granted 
 had been enjoined from taking pos- 
 session of, or in any way interfering 
 with, the property or business of such 
 corporation; that until the day of 
 the application, defendants had been 
 in uninterrupted possession of the 
 corporate property and business; that 
 before business hours on such day 
 plaintiffs, during the absence of de- 
 fendants, broke into the company's 
 office, and assumed custody and con- 
 trol of the company's books, papers, 
 and property. Black v. Huggins, 2 
 Tenn. Ch. 780, by the chancellor: 
 " The rule is that if on motion to dis- 
 solve an ex parte injunction it ap- 
 pear that the plaintiff has misstated 
 the case, either by the misrepresen- 
 tation or suppression of material 
 facts, the injunction will be dissolved 
 on that ground alone. Hilton v. Lord 
 Granville, 4 Beav. 130; Clifton v. 
 Robinson, 16 Beav. 355; Hemphill v. 
 McKenna, 5 Irish Eq. 57; Endicott 
 v. Mathis, 9 N. J. Eq. 110. The rea- 
 son is that the utmost good faith 
 must be required of those who seek 
 to put in motion the power of this 
 court through its extraordinary pro- 
 cess." An ex parte interim restrain- 
 
 457
 
 § 289 Dissolutions. 
 
 tion was granted was collusive the court may properly refuse to 
 continue the injunction. 30 And where on a motion to dissolve an 
 injunction obtained by a lessee against a lessor to prevent dispos- 
 session of leased premises, it appeared that the lessor had previ- 
 ously obtained a judgment of eviction against the lessee aa 
 contumacious, the injunction at once was dissolved, because it waa 
 equivalent to giving the lessee the benefit of a suspensive appeal 
 to which he was not entitled, and so operated as a fraud upon the 
 law. 31 But an allegation by complainant that defendant's acta 
 caused an injury, which, at the time, complainant attributed to 
 another cause, does not show such bad faith as to justify the dis- 
 solution of his injunction, where, so far as appears, both causes 
 may have contributed to the injury. 32 A counter injunction ob- 
 tained in a cross-action from a judge other than the one who 
 granted the first injunction, and which can be enforced only by a 
 violation of the first, should be vacated, without regard to the 
 merits. 33 An injunction pendente lite will be refused, and a re- 
 straining order previously issued will be quashed when the bill 
 does not set forth the conceded facts in the case. 34 The violation 
 of his own injunction by plaintiff, where its purpose is to pre- 
 serve the existing status, is a gross abuse of the mandate of the 
 court, for which the injunction may be dissolved. 35 However 
 serious the issue of fact between the parties as presented by their 
 conflicting affidavits, the falsity of plaintiff's affidavits will not 
 often become so apparent on appeal that the appellate court will 
 disturb the injunction on that account; 36 and however serious the 
 
 ing order irregularly obtained on 31. Mengelle v. Abadie, 45 La. 
 
 suppression of material facts may be 676, 12 So. 921. 
 
 dissolved without a formal notice of 32. Coeur d'Alene Min. Co. v. Min- 
 
 motion to dissolve being given to ers' Union, 51 Fed. 260. 
 
 plaintiff by the defendant, and on 33. People's R. Co. v. Syracuse, 
 
 such a motion the plaintiff ought to etc., R. Co., 22 Abb. N. C. (N. Y.) 
 
 pay costs for imposing upon the 427, 6 N. Y. Supp. 326. 
 
 court, though on the merits he may 34. St. Louis Foundry v. Carter 
 
 be entitled to injunctive relief. Boyce Printing Co., 31 Fed. 524. 
 
 v. Gill, 64 L. T. 824. And, see, Con- 35. Van Zandt v. Argentine Min. 
 
 over v. Piuckman, 32 N. J. Eq. 685. Co., 2 McCrary, 642. 
 
 30. Kimball v. Hewitt, 15 Daly 36. Davis v. Laasiter, 112 N. C. 
 
 (N. Y.) 124. 128, 16 S. E. 899. 
 
 458
 
 Dissolutions. 
 
 §290 
 
 issues raised by an answer, if their determination is at all doubt- 
 ful, it is not error to continue the temporary injunction until the 
 hearing upon the merits, especially when it appears that the sub- 
 ject matter of the action will remain unimpaired. 37 And though 
 facts in reference to the subject matter of the controversy may have 
 been suppressed by the plaintiff yet this is not sufficient reason 
 for dissolving an ex parte injunction where such facts were not 
 material to a suit between the plaintiff and the defendant but only 
 between the plaintiff and a third person. 38 
 
 § 290. Court's discretion as to dissolution ; limit of — The 
 
 question whether an injunction shall be continued or dissolved is 
 one for the court to determine in the exercise of its discretion. 39 
 A court will often refuse to dissolve an injunction where its dis- 
 solution would cause greater h?vrm than its continuance, and 
 
 37 Whittaker v. Hill, 96 N. C. 2, 
 1 S. E. 639; Turner v. Cuthrell, 94 
 N. C. 239; Harrison v. Bray. 92 N. 
 C. 488. 
 
 38. Poirier v. Blanchard, 1 N. B. 
 Eq. 322. 
 
 39. United States. — Buffington v. 
 Harvey, 95 U. S. 99, 24 L. Ed. 381; 
 Nelson v. Robinson, Fed. Cas. No. 
 10114, 1 Hemp. 464. 
 
 Alabama. — Bibb v. Shackelford, 38 
 Ala. 311. 
 
 California. — White v. Nunan, 60 
 Cal. 406 ; Payne v. McKinley, 54 Cal. 
 532. 
 
 Florida. — Shaw v. Palmer (Pa. 
 1907), 44 So. 953; Allen v. Hawley, 
 6 Fla. 142. 
 
 Georgia. — Fouche v. Rome Street 
 R. Co., 84 Ga. 233, 10 S. E. 726; 
 Howard v. Lowell Mach. Co., 75 Ga. 
 325; Loyless v. Howell, 15 Ga. 554. 
 
 Iowa. — Gossard Co. v. Crosby, 132 
 Iowa, 155, 109 N. W. 483, 6 L. R. A. 
 (N. S.) 1115; Schricker v. Field, 9 
 Iowa, 366. 
 
 Kansas. — Wood v. Millspaugh, 15 
 Kan. 14. 
 
 Louisiana. — Cameron v. Godchaux, 
 48 La. Ann. 1345, 20 So. 710. 
 
 Minnesota. — Mayer v. Petersburg, 
 96 Minn. 314, 104 N. W. 899; Todd 
 v. Rustad, 43 Minn. 500, 46 N. W. 73. 
 
 Mississippi. — Jones v. Commercial 
 Bank, 5 How. 43, 35 Am. Dec. 419. 
 
 Montana. — Cotter v. Cotter, 16 
 Mont. 63, 40 Pac. 63. 
 
 New Jersey. — Jewett v. Dringer, 27 
 N. J. Eq. 271; Chetwood v. Brittan, 
 2 N. J. Eq. 438. 
 
 New York. — Pfohl v. Sampson, 59 
 N. Y. 174; People v. Schoonmaker, 50 
 N. Y. 499 ; Miller v. Warner, 42 App. 
 Div. 208, 59 N. Y. Supp. 956 ; Alvord 
 v. Fletcher, 28 App. Div. 493, 51 N. 
 Y. Supp. 117; Grill v. Wiswall, 82 
 Hun, 281, 31 N. Y. Supp. 470; Minor 
 v. Terry, 6 How. Prac. 208; Roberts 
 v. Anderson, 2 Johns. Ch. 202; Row- 
 ley v. Van Benthuysen, 16 Wend. 
 369; Ciancimino v. Man, 1 Misc. R. 
 121, 20 N. Y. Supp. 702. 
 Texas.— Hart v. Mills, 38 Tex. 517. 
 
 459
 
 £290 
 
 Dissolutions. 
 
 would be especially harmful to public interests. Thus where a 
 successor to a wrongfully discharged principal of a normal school 
 has been appointed, and the school year is nearly ended, an in- 
 junction restraining the dismissed principal from assuming to act 
 as principal will not be dissolved on account of the consequent 
 harm to a public school. 40 The court may also in the exercise of 
 its discretion dissolve a temporary injunction where it appears that 
 the injury to the defendant by its continuance will be greater than 
 the corresponding benefit to the complainant. 41 And in the exercise 
 ©f this discretion it may modify an injunction. 42 The dissolution 
 of a temporary injunction does not rest in the discretion of the 
 nisi prius court when it appears on the face of the pleadings that, 
 as a matter of law, the injunction should be dissolved. Thus 
 where an injunction attacks the validity of a statute, and in effect 
 suspends its operation, it must be dissolved on the injunction peti- 
 tion alone, if the petition does not clearly show it to be unconstitu- 
 tional. 43 
 
 40. Edinboro Normal School v. 
 Cooper, 150 Pa. St. 78, 24 Atl. 348, 
 per Williams, J. : " If no other con- 
 siderations presented themselves than 
 such as are personal to the trustees 
 and the appellant, we should not hesi- 
 tate to dissolve the injunction; but 
 the State Normal School and its work^ 
 are also entitled to consideration. 
 The school year is near its close. An- 
 other principal has conducted the 
 school since February 9, and is in ac- 
 cord with the trustees. The appellant 
 cannot hope for a re-election. In 
 view of what has transpired, includ- 
 ing his own conduct prior to the 
 granting of the injunction, it is 
 doubtful if his re-election would be 
 helpful to him or the school. . . . 
 Having regard to the public interests 
 involved, we shall leave the injunc- 
 tion to stand so far as it enjoins 
 against interference with the author- 
 ity or functions of the new principal, 
 
 or the management of the school. If 
 it be thought to have any wider 
 scope or purpose, it is as to such 
 purpose dissolved. This decree is 
 made with a saving of all rights of 
 appellant to proceed at law for the 
 collection of his salary for the re- 
 mainder of the year. The costs of 
 his appeal to be paid by the appel- 
 lees." 
 
 41. McGregor v. Silver King Min. 
 Co., 14 Utah, 47, 45 Pac. 1091. 
 
 42. Detroit & E. P. R. Co. v. Ma- 
 comb Circuit Judge, 109 Mich. 371, 
 67 N. W. 531; Neale v. Wood County 
 Court, 43 W. Va. 90, 27 S. E. 370. 
 
 43. Burlington, C. R. & N. Ry. Co. 
 v. Dey, 82 Iowa, 312, 48 N. W. 98, 
 per Beck, C. J. : " It is also insisted 
 that as the dissolving of an injunc- 
 tion is a matter resting largely in the 
 discretion of the court, the refusal of 
 the court below will not be disturbed 
 unless it appears such discretion has 
 
 460
 
 Dissolutions. 
 
 §291 
 
 § 291. Discretion further considered and illustrated. — A tem- 
 porary injunction, which seems harmless for the present, against 
 interfering with stocks, debentures, dividends, and interest, 
 though of doubtful necessity, may be left to stand until further 
 order of the chancellor, or till the final hearing. 44 And where a 
 temporary injunction has been granted by a trial judge, and the 
 law side of the case has been adjudicated by the Supreme Court, 
 and has been a second time taken to said court, and is still pending, 
 with reasonable certainty that an adjudication will soon be had, 
 the Circuit Court will not dissolve the injunction, or sustain a 
 motion to file a supplemental answer. 45 It is not an abuse of dis- 
 cretion to dissolve an injunction where the acts enjoined had 
 long been acquiesced in by plaintiff, and defendant had thus been 
 led into great expense. 46 
 
 been abused. But this rule does not 
 apply to cases involving questions of 
 law arising on the face of the peti- 
 tion itself. If it appear upon the 
 face of the pleadings that as a mat- 
 ter of law the injunction ought not 
 to have been granted, it will be dis- 
 solved. Surely the operation of a 
 statute will not be suspended by in- 
 junction for conflict with the Consti- 
 tution under this doctrine of discre- 
 tion, when the petition therefor upon 
 its face shows that it is constitu- 
 tional, or that it is not clearly and 
 without doubt unconstitutional. The 
 failure to dissolve the injunction 
 upon proper motion was not done in 
 the exercise of judicial discretion. 
 The enforcement and obedience to 
 rules of law are not left to the dis- 
 cretion of the court." 
 
 44. Smith v. Cuyler, 78 Ga. 654, 
 3 S. E. 406. 
 
 Where a bill for injunction 
 depends on a widow's title to 
 dower, and it is disputed, the right 
 must be established at law. For this 
 purpose the court may, and ordinarily 
 
 will, either direct an issue or retain 
 the bill, with liberty to the complain- 
 ant to bring an action at law. But 
 whether, under such circumstances, 
 the bill will or will not be retained, 
 is a matter resting in the sound dis- 
 cretion of the court. Palmer v. Cas- 
 person, 17 N. J. Eq. 204. 
 
 45. Reynolds v. Iron Silver Min. 
 Co., 33 Fed. 354. 
 
 46. Klein v. Davis, 11 Mont. 155, 
 27 Pac. 511. In this case a tempo- 
 rary injunction to restrain a trespass 
 was granted on filing a complaint. 
 The affidavits filed in support of a 
 motion to dissolve the injunction 
 showed that the defendants owned a 
 placer mining claim in a gulch above 
 plaintiff's land, on which defendants 
 had a right to dump tailings; that 
 defendants had been engaged in dig- 
 ging a flume on plaintiffs' land for 
 18 months, and had dug it for a dis- 
 tance of 750 feet, at an expense of 
 $1,500, without objection, and with 
 plaintiffs' full knowledge, and had 
 but 28 feet further to go to complete 
 the flume when the temporary in- 
 
 461
 
 §§ 291a, 292 Dissolution. ^ 
 
 § 291a. Dissolution; where party entitled to another injunc- 
 tion. — Though an injunction may bo independently granted, it 
 will not be dissolved where it is plain from the record that the 
 party would be entitled to the writ immediately. 47 So it is decided 
 that an injunction will not be set aside for irregularities in the 
 bond or affidavit, if it is manifest from a mere inspection of the 
 record that the plaintiff would be immediately entitled to another 
 injunction. 48 
 
 § 292. Amending defects on hearing motion to dissolve. — 
 
 The fact that there is a technical error or irregularity in connection 
 with the granting of an injunction, the granting of which is other- 
 wise proper, is not ground for dissolving the injunction. 49 So in 
 a recent case in Louisiana it is said " unless the defect pointed 
 out be radical, it is well settled that an injunction will not be dis- 
 solved if it appear from the record there exists good cause for an 
 injunction." 50 And on a motion to dissolve, such amenable de- 
 fects as mere obscurity or insufficiency in the form of the state- 
 ments of the bill are not to be regarded, though they might be 
 available by way of demurrer ; in other words the facts stated, and 
 not the manner in which they are stated, nor the form of the bill, 
 should be considered, and all amenable defects should be treated 
 as amended. 51 Thus a defect in an affidavit to a bill for injunction 
 is no reason for dissolving the injunction on motion, unless com- 
 plainant fails, when required by the court, to supply a sufficient 
 
 junction was granted. The court citing Ward v. Douglass, 22 La. Ann. 
 
 viewed the premises. It was held 463. 
 
 that it was not an abuse of discre- 51. Hendricks v. Hughes, 117 Ala. 
 
 tion to dissolve the injunction. 591, 23 So. 637; Chambers v. Ala- 
 
 47. Savoie v. Thibodeaux, 28 La. bama Iron Co., 67 Ala. 353; Nelson 
 Ann. 169. v - Dunn, 15 Ala. 501 ; Alabama, etc., 
 
 48. Henderson v. Maxwell, 22 La. R. Co. v. Kenney, 39 Ala. 307. 
 Ann. 357. An injunction will not be dissolved 
 
 49. Louisville & N. R. Co. v. Bes- merely because the complainant, in 
 semer, 108 Ala. 238, 18 So. 880; his bill, has unintentionally misstated 
 KiTel v. Wharton, 5 Ky. Law Rep. some of the facts on which his claim 
 423. to relief is founded, such misstate- 
 
 50. Cotten v. Christen, 110 La. ments not affecting the merits. 
 444, 34 So. 597, per Blanchard, J., Frome v. Freeholders, etc., 33 N. J. 
 
 462
 
 Dissolution. § 293 
 
 verification. 52 And irregular service of the injunction upon the 
 attorney instead of the party who has appeared, is not a ground for 
 dissolving it. 53 And an injunction cannot be dissolved on the 
 ground that the service of the writ was made before the court had 
 acquired jurisdiction of the person of the defendant in the action, 
 where such jurisdiction was afterward obtained either by the ser- 
 vice of original notice or by an appearance. 54 That there is a 
 defect of parties defendant is sometimes but not usually a suffi- 
 cient ground for dissolution ; 55 for such a defect may be amended 
 without prejudice to the injunction. 56 
 
 § 293. Dissolution for irregularity; Alabama rule. — A motion 
 to dissolve an injunction can be founded only on a want of equity 
 apparent on the face of the bill, or on a duly verified answer which 
 denies all the allegations upon which the equity of the bill de- 
 pends ; it cannot be founded on a mere irregularity in procedure 
 which does not affect the merits of the cause, as for instance, the 
 granting of the injunction before the filing of the bill, and such 
 an irregularity is waived by a motion to dissolve for want of equity, 
 or an answer denying the equities of the bill. A motion to 
 set aside or discharge an injunction for irregularities in the pro- 
 ceedings must be made at the first opportunity, for by appearing 
 and answering the defendant waives the irregularities. 57 
 
 Eq. 464. See, also, Havannian v. Be- the objection on a motion to take the 
 
 dessern, 63 111. App. 353. answer from the files. Vermilya v. 
 
 52. Forney v. Calhoun County, 84 Christie, 4 Sandf. Ch. (N. Y.) 376. 
 
 Ala. 215, 4 So. 153. See, also, Ja- 53. Becker v. Hager, 8 How. Pr. 
 
 coby v. Goetter, 74 Ala. 427. (N. Y.) 68. The remedy for irregu- 
 
 An injunction will not be dissolved lar service being to set it aside, 
 
 because of an insufficient verification Phoenix Foundry Co. v. North Riv., 
 
 of certain allegations in the bill, when etc., Co., 6 N. Y. Civ. Pro. 106. 
 
 the defendant by answer admits the 54. District Township of Lodomillo 
 
 unverified facts. Conover v. Ruck- v. District Township of Cass, 54 
 
 man, 34 N. J. Eq. 293, 297. Iowa, 115. 
 
 Upon a motion to dissolve an in- 55. Schulten v. Lord, 4 E. D. 
 
 junction on bill and answer, an objec- Smith (N. Y.), 206. 
 
 tion that the answer is irregularly 56. Irick v. Black, 17 N. J. Eq. 
 
 sworn, the irregularity requiring 190; Johnson v. Vail, 14 N. J. Eq. 
 
 proof, will not be considered. The 424. 
 
 complainant should have presented 57. Ex parte Sayre, 95 Ala. 288, 
 
 463
 
 §293a 
 
 Dissolution. 
 
 § 293a. Fatal defects or irregularities. — An injunction may be 
 dissolved where the affidavit and papers upon which it was granted 
 are illegible. 58 And an irregularity in an injunction arising from 
 the fact that it is antedated is held to be sufficient ground for dis- 
 solving it. 59 In a case in New Jersey it is decided that where an 
 injunction is not issued in accordance with the terms prescribed by 
 statute a party will not be put to his motion to dissolve the injunc- 
 tion but that the party is entitled to summary relief and that it 
 will be set aside for irregularity. 60 
 
 11 So. 378, per Coleman, J.: " While 
 we have found no authority declar- 
 ing directly that it is a proper prac- 
 tice to grant the issue of an injunc- 
 tion before the filing of the bill, the 
 authorities are abundant which hold 
 that such an order before filing the 
 bill is not void, but at most is a mere 
 irregularity. In the case of East & 
 West R. Co. v. East Tennessee, V. & 
 G. R. Co., 75 Ala. 275, it is declared : 
 ' A motion to dissolve an injunction 
 can be founded only on a want of 
 equity apparent on the face of the 
 bill, or on a full and complete denial, 
 by the verified answer of a material 
 defendant, of the allegations upon 
 which the equity of the bill depends. 
 The motion itself is a waiver of the 
 error or irregularity, if any, which 
 may have attended the order for the 
 issue of the writ, or which may be 
 in the writ alone. These are avail- 
 able only upon motion for a discharge 
 of the injunction, which must pre- 
 cede any act on the part of the de- 
 fendant in recognition or affirmance 
 of its regularity.' And in Jones v. 
 Ewing, 56 Ala. 362, it was held; 'If 
 the injunction has been irregularly 
 granted, . . . the remedy is not 
 by a motion to dissolve. Such mo- 
 tion, founded as it can be only on a 
 want of equity in the bill, or the full 
 and complete denial of its equity by 
 
 the answer, is a waiver of the irregu- 
 larity, if any has occurred in the 
 grant of the writ.' A number of au- 
 thorities are cited in support of the 
 rule of law as declared. In Parker v. 
 Williams, 4 Paige (N. Y.), 439, it 
 was held that ' an irregularity in the 
 service of the injunction was waived 
 by the defendant voluntarily appear- 
 ing and putting in his answer. It 
 was therefore too late for him to 
 make the objection, after such a lapse 
 of time, and after those proceedings 
 had taken place. When a party seeks 
 to set aside the proceedings of his 
 adversary upon a technical irregu- 
 larity, he must make his application 
 the first opportunity he has for that 
 purpose.' We are of opinion that the 
 chancery court was without jurisdic- 
 tion to render a decree in vacation 
 discharging the injunction, and in de- 
 creeing the order granting the injunc- 
 tion to be void. We are further of 
 the opinion that the filing an answer 
 and moving the court to dissolve the 
 injunction for want of equity, and 
 upon answer, was a waiver of the ir- 
 regularity." 
 
 58. Johnson v. Casey, 28 How. 
 Prac. (N. Y.) 492. 
 
 59. Brodie v. Cronly, 3 Edw. Ch. 
 (N. Y.) 355. 
 
 60. Marlatt v. Perrine, 17 N. J. 
 Eq. 49. 
 
 464
 
 Dissolution. §§ 293b, 294 
 
 § 293b. Vagueness as ground for dissolution. — Vagueness in 
 an injunction furnishes a good ground for its dissolution. So it 
 was decided that an injunction was properly dissolved for this 
 reason where it was sued out to restrain the defendants from 
 trespassing upon the lands of the plaintiff but did not sufficiently 
 designate what lands the plaintiff claimed as his. 61 
 
 § 294. Dissolution where no bond given ; defective or insuffi- 
 cient bond. — Where it is ordered that an injunction issue on peti- 
 tioner executing a bond, and the record fails to show that any bond 
 was given, a motion to dissolve the injunction on the ground that 
 no sufficient bond was executed will be granted. 62 Under a Code 
 provision that the injunction shall be dissolved upon failure of the 
 sureties on the injunction bond to justify at the appointed time 
 and place, as required by the Code, it is decided that if such 
 "failure to justify appears to have been caused by the plaintiff's 
 mere mistake as to the time when the justification should take 
 place, the injunction should not be dissolved without giving the 
 sureties a further opportunity to justify. 63 Again, while an injunc- 
 tion may be dissolved on the ground of defects in the bond, 64 yet 
 if an injunction bond is defective or insufficient the better practice 
 
 61. Avery v. Onillon, 10 La. Ann. the requisite security." Marlatt v. 
 127. Perrine, 17 N. J. Eq. 49, 51. 
 
 62. Ricker v. Douglas, 75 Tex. 180, Where an injunction is issued 
 12 S. W. 975. without the requisite security being 
 
 Where an injunction is given, the court will set it aside for 
 granted contrary to the statute irregularity, with costs. Loveland v. 
 — requiring secnrity in certain Burnham, 1 Barb. Ch. (N. Y.) 65. 
 cases — the party is entitled to sum- 63. McSherry v. Penn. Consoli- 
 mary relief. He will not be put to dated Gold Mining Co., 97 Cal. 637, 
 his motion to dissolve; it will be set 32 Pac. 711. In Smith v. Harrington, 
 aside for irregularity. In such a 49 Miss. 771, the motion to dissolve 
 case, the injunction was ordered to be was on the ground that no good and 
 set aside, with costs, unless complain- sufficient bond was filed in accordance 
 ant, within three days, deposit the with the conditions prescribed by law, 
 money or give the security required and approved; the court held, on ap- 
 by the statute. But the court said : peal, that it was error to dissolve the 
 " If the injunction were set aside, a injunction without giving complain- 
 new one would be granted immedi- ants time to perfect the bond, 
 ately upon the complainant's giving 64. Gamble v. Campbell. 6 Fla. 
 
 465 
 30
 
 §295 
 
 Dissolution. 
 
 is to retain the injunction, subject to the filing of a new or 
 amended bond within a reasonable time to be fixed by the court.* 5 
 
 § 295. Dissolution on defendant's bond. — The New York 
 statute providing that the court shall vacate an injunction on the 
 defendant's bond, when the injury enjoined is not irreparable, 66 
 applies both to injunctions ad interim and to injunctions pendente 
 lite. 61 But under the foregoing statute requiring the court to 
 vacate an injunction on the completion of an undertaking where 
 the injury is not irreparable, an injunction will not be vacated 
 where the plaintiff's right is clear, as, for instance, where a horse- 
 railroad track has been laid without authority through a street 
 the fee of which is in an abutter. 68 Where, however, both parties 
 have rights within the locus in quo, and seem to be acting, partly 
 if not wholly, under authority of law, the plaintiff's injunction 
 must be dissolved, where he can be protected by an indemnity bond 
 and by an arrangement which will secure to both parties a reason- 
 able exercise of their rights. 69 And in an action to enjoin defend- 
 
 347; Massie v. Mann, 17 Iowa, 131; 
 Boawell v. Wheat, 37 Miss. 610; Pil- 
 low v. Thompson, 20 Tex. 206. 
 
 65. Beauchamp v. Supervisors, 45 
 111. 274. 
 
 Florida. — Gamble v. Campbell, 6 
 Fla. 347. 
 
 Illinois. — Beauchamp v. Supervis- 
 ors, 45 111. 274. 
 
 Iowa. — Massie v. Mann, 17 Iowa, 
 131. 
 
 Mississippi. — Smith v. Harrington, 
 49 Miss. 771; New v. Wright, 44 
 Miss. 202. 
 
 New York. — Fayerweather v. 
 Smith, 3 How. Prac. 98. 
 
 Texas. — Downes v. Monroe, 42 Tex. 
 307. 
 
 Virginia. — Ross v. Pleasants, 1 
 Hen. & M. 1. 
 
 66. N. Y. Code Civ. Pro., § 629, 
 as amended by L. 1883, ch. 404. 
 
 67. Metropolitan R. Co. v. Man- 
 
 hattan R. Co., 11 Daly (N. Y.), 367. 
 
 68. Thayer v. Rochester City R. 
 Co., 15 Abb. N. C. (N. Y.) 52. 
 
 69. Plaintiff, a telephone company, 
 had authority to string its wires 
 along certain streets, and sued to re- 
 strain defendant from operating its 
 electric railway on the same streets, 
 on the ground that it interfered with 
 the telephone communication. Upon 
 the motion for an injunction pendente 
 lite, it appeared that the adoption by 
 either party of the " metallic cir- 
 cuit " would obviate the electrical in- 
 terference complained of by plaintiff, 
 and that it would be much cheaper 
 for the telephone company to con- 
 struct it than for the railway. Held, 
 that an order granting the injunction 
 would be vacated, upon defendant 
 stipulating that the court might de- 
 termine on the trial and adjudge to 
 plaintiff such recovery for the expense 
 
 460
 
 Dissolution 
 
 §290 
 
 ants from interfering with a party wall on the line between their 
 premises and those of plaintiff's, a preliminary injunction is 
 properly vacated where there is a decided dispute as to the facts, 
 which can only be settled by a trial, and plaintiff is fully indemni- 
 fied by bond against loss from any infringement of his rights. 70 
 And where the complainant can be indemnified by defendant's 
 bond and the injunction is causing a serious loss to the defendant, 
 a court of equity will be strongly inclined to dissolve it. Thus, 
 where a part owner of a ship enjoins another, a part owner, from 
 using it, the injunction should be dissolved on the defendant's 
 giving ample security for plaintiff's interest and equitable rights. 71 
 
 § 296. Same subject; in Louisiana. — The test of the right to 
 dissolve an injunction on the defendant's bond is the nature and 
 extent of the injury wrought by, or apprehended from, the en- 
 joined acts; if the injury is irreparable, that is, not compensable 
 by money, dissolution on bond is not permitted ; but if reparable, 
 dissolution on bond is permitted. 72 Thus, an injunction to restrain 
 
 and damage to it by reason of its 
 constructing a. metallic circuit as 
 might be just and equitable, and upon 
 defendant giving a bond for payment 
 to plaintiff of the amount awarded 
 against it. Hudson River Tel. Co. v. 
 Watervliet Turnpike & R. Co., 56 
 Hun, 67, 9 N. Y. Supp. 177; aff'd 121 
 N. Y. 397, 24 N. E. 832. 
 
 70. Wynkoop v. Van Buren, 58 
 Hun (N. Y.), 604, 11 N. Y. Supp. 
 379. 
 
 71. Dunham v. Jarvis, 8 Barb. (N. 
 Y.) 88; compare Austin v. Chapman, 
 11 N. Y. Leg. Obs. 103. Where de- 
 fendant has expended large sums of 
 money in preparing mills, booms and 
 roads for getting out timber, and has 
 a large number of laborers in its em- 
 ploy, an injunction to restrain the 
 cutting of timber on the land pend- 
 ing an appeal to the United States 
 Supreme Court in an action involv- 
 
 ing the title to the land, wherein de- 
 fendant obtained judgment against 
 plaintiffs in the trial court, will be 
 dissolved on defendant's giving a bond 
 to plaintiffs, and rendering such peri- 
 odical accounts as the court may di- 
 rect. Wood v. Braxton, 54 Fed. 1005. 
 72. Lattier v. Abney, 43 La. Ann. 
 1016, 10 So. 360; State v. Judge De- 
 baillon, 37 La. Ann. 110. In the last 
 case cited the reporter has incorrectly 
 made the court say : " The test of the 
 right to dissolve an injunction is the 
 nature and extent of the injury 
 wrought by the injunction." That 
 this is inaccurate is plain from the 
 terms of art. 307 of La. Code of Prac- 
 tice, which provides that, " Whenever 
 the act prohibited by the injunction 
 is not such as may work an irrepar- 
 able injury to the plaintiff, the court 
 may, in their discretion, dissolve the 
 same, provided the defendant execute 
 
 467
 
 §297 
 
 Dissolution. 
 
 a police jury from building a jail will be dissolved on defendant's 
 filing a bond ; tbe apprehended inj ur y being compensable in money, 
 as shown by the allegations of the petition for the injunction." 
 On the hearing of a motion to dissolve the injunction, where the 
 defendant has given the bond required by the Louisiana Code of 
 Practice, evidence in justification of the enjoined act is inadmis- 
 sible. 74 The dissolution of an injunction, on the filing of a bond 
 by defendant, operates as an authority to perform the prohibited 
 act during the pendency of the suit, subject to responsibility under 
 the bond. 75 
 
 § 297. Dissolution for laches. — Laches on the part of a com- 
 plainant in proceeding with reasonable diligence with the prose- 
 cution of the cause in connection with which the injunction is 
 issued may be a ground for dissolving the same. 78 So it is decided 
 
 his obligation in favor of the plain 
 tiff," etc. And see, on the right to a 
 dissolution on defendant's bond, State 
 v. Judge, 33 La. Ann. 760; State v. 
 Judge, 29 La. Ann. 360; Anderson v. 
 Smith, 28 La. Ann. 649. 
 
 73. Lattier v. Abney, 43 La. Ann. 
 1016, 10 So. 360. See, also, Levine v. 
 Michell, 34 La. Ann. 1181; Osgood v. 
 Black, 33 La. Ann. 493; Crescent, 
 etc., Slaughter Co. v. Butchers' 
 Slaughter Co., 33 La. Ann. 930. In 
 the last case it was held that the 
 sworn allegations of the plaintiff in 
 the injunction, that the act to be en- 
 joined will cause irreparable injury, 
 are not conclusive of the fact, and 
 does not deprive the judge who 
 granted the injunction of all discre- 
 tion in dissolving it on defendant's 
 bond, though such allegations of the 
 plaintiff may be conclusive on plain- 
 tiff in opposing the motion for disso- 
 lution. Levine v. Michell, 34 La. 
 Ann. 1181. 
 
 74. New Orleans Water Works Co. 
 v. Oser, 36 La. Ann. 918. 
 
 75. State v. Duffel, 41 La. Ann. 
 516, 6 So. 512. 
 
 76. United States. — Parker v. 
 Winnipiseogee Lake C. & W. M. Co., 
 67 U. S. 545, 17 L. Ed. 333. 
 
 Delaware. — Russell v. Stockley, 4 
 Del. Ch. 567. 
 
 Florida.— Perry v. Wittich, 37 Fla. 
 237, 20 So. 238. 
 
 Mississippi. — Payne v. Cowan, Sm. 
 & M. Ch. 26. 
 
 New Jersey. — Collings v. City of 
 Camden, 27 N. J. Eq. 293; Huffman 
 v. Hummer, 17 N. J. Eq. 263; West 
 v. Smith, 2 N. J. Eq. 309. 
 
 New York. — Depeyster v. Graves, 2 
 Johns. Ch. 148; Furgison v. Robin- 
 son, Hopk. Ch. 8. 
 
 North Carolina. — Hightour v. 
 Rush, 3 N. C. 552. 
 
 Pennsylvania. — Butler v. Egge, 170 
 Pa. St. 239, 32 Atl. 402; White v. 
 Schlect, 14 Phila. 88. 
 
 South Carolina. — Hunt v. Smith, 3 
 Rich. Eq. 465. 
 
 Virginia. — Motley v. Frank, 87 Va. 
 432. 13 S. E. 26. 
 
 468
 
 Dissolution. § 297 
 
 that tJae complainant must exercise due diligence in the prosecution 
 of his cause or the injunction will be dissolved," or the complain- 
 ant required to give security to indemnify the defendant. 78 Thus 
 where the complainant took no steps to advance his cause for nine 
 months, and the defendant in the meantime served two notices of 
 motions for dissolution, the injunction was dissolved on the 
 ground of complainant's laches. 79 And where complainant failed 
 to prosecute with diligence he was charged with the costs of a 
 motion to dissolve, though the injunction was retained. 80 But 
 where sufficient time has elapsed after the granting of an injunc- 
 tion pendente lite, within which the case could have been reached 
 for trial and disposed of on the merits, the court, on appeal, will 
 not disturb an order continuing the injunction until trial. 81 So, 
 too, a motion to dissolve or modify made by defendant more than 
 a year after the injunction was granted, and after the cause has 
 been brought to issue upon the merits, and unsupported by proof 
 of any new or special circumstances, is too late. 82 In this connec- 
 tion it is decided that the plea of the statute of limitations is an 
 affirmative defense and it is said in a case in New York that the 
 
 77. Schalk v. Schmidt, 14 N. J. the other defendants in their answer 
 Eq. 268; Corey v. Voorhies, 2 N. J. charged collusion between the com 
 Eq. 5. In Hoagland v. Titus, 14 N. plainant and the defendant who had 
 J. Eq. 81, the chancellor said: "The not answered, it was held that under 
 rule rests upon sound principle and such circumstances the fact that all 
 should be enforced. The injunction the defendants had not answered 
 is granted ex parte. It deprives the could not be urged as an objection to 
 party enjoined of the exercise of his the dissolution of an injunction, un- 
 legal rights. . . . Every principle less the complainant denied upon af- 
 of justice requires that the defendant fidavit all collusion, and stated suffi 
 should be restrained from the exer- cient reasons for not compelling an 
 cise of his rights no longer than is answer from all the defendants, 
 necessary to investigate the matter at Ward v. Van Bokkelen, 1 Paige (N. 
 issue." Y.), 100. 
 
 78. Dodd v. Flavel, 17 N. J. Eq. 80. Randall v. Morrell, 17 N. J. 
 255. Eq. 343. 
 
 79. Greenin v. Hoey, 9 N. J. Eq. 81. Consolidated Gas Co. v. City of 
 137. See, also, Depeyster v. Graves, New York, 63 Hun (N. Y.), 629, 17 
 2 Johns. Ch. (N. Y.) 148. Where the N. Y. Supp. 826. 
 
 complainant suffered three years to 82. Florence Sewing Machine Co. 
 
 elapse without compelling an answer v. Grover, etc., Co., 110 Mass. 1. 
 from one of several defendants, and 
 
 469
 
 §'§ 298, 299 Dissolution. 
 
 court knows of no authority which makes that a ground for setting 
 aside an injunction which otherwise was properly issued. 83 
 
 § 298. Dissolution where subpoena not served. — Where the 
 complainant neglects to serve a subpoena upon a defendant against 
 whom an injunction has been granted, the defendant may appear 
 voluntarily and apply to dissolve the injunction, and his motion 
 will be granted if the complainant fails to excuse his laches. 84 But 
 he must do so at the first opportunity, and he waives the irregu- 
 larity by putting in his answer; 85 and it is too late to move to 
 dissolve after the subpoena has been served. 86 And the neglect of 
 the complainant to serve a subpoena on one or some of the defend- 
 ants named in the bill, is not ground for dissolving the injunction 
 as to those who were so served. 87 And ordinarily it is not a suf- 
 ficient ground for dissolution that the subpoena could not be 
 served nor that the injunction was served irregularly or without 
 the jurisdiction of the court. 88 In a case in Minnesota it is decided 
 that the fact that the summons is not served is ground for the dis- 
 solution of the injunction but that the injunction is nevertheless 
 obligatory upon the party served therewith. 89 
 
 § 299. Motion to dissolve before answer. — Although it is said 
 that as a general rule a court will not, prior to the filing of de- 
 fendant's answer, dissolve an injunction which has been properly 
 granted, 90 yet it is decided that the court will, before the answer 
 
 83. Littlejohn v. Leffingwell, 40 88. Corey v. Voorhies, 2 N. J. Eq. 
 App. Div. (N. Y.) 13, 57 N. Y. Supp. 5, where it was held upon a motion 
 839. to dissolve an injunction on the 
 
 84. Lee v. Cargill, 10 N. J. Eq. ground that the subpoena has not 
 331; West v. Smith, 2 N. J. Eq. 309; been served, the sheriff's return to the 
 Waffle v. Vanderheyden, 8 Paige (N. subpoena is conclusive and cannot be 
 Y.) s 45. But see Corey v. Voorhies, contradicted by affidavits, unless col- 
 2 N. J. Eq. 5. lusion be shown between the sheriff 
 
 85. Parker v. Williams, 4 Paige and the complainant or his solicitor. 
 (N. Y.), 439. 89. Lash v. McCormick, 14 Minn. 
 
 86. Seebor v. Hess, 5 Paige (N. 482. 
 
 Y.), 85. 90. Norfolk & W. R. Co. v. Old 
 
 87. Seebor v. Hess, 5 Paige (N. Dominion Baggage Co., 97 Va. 89, 
 Y.), 85. 33 S. E. 385. 
 
 470
 
 Dissolution. § 299 
 
 is made, hear a motion to dissolve upon the ground of a want of 
 equity in the complainant's bill. 91 So in a recent case in Iowa it 
 is decided that a temporary writ of injunction may be dissolved 
 upon motion, supported by affidavits disclosing defensive matter, 
 before the filing of an answer to the petition. 92 And it is held 
 competent for the defendant in vacation, and before he puts in his 
 answer, to move to dissolve the injunction on this ground. 93 This 
 was the rule in New York under the old chancery practice, but. 
 ordinarily such a motion ought not to be successful, as it would 
 bring the case before the chancellor on the same state of facts, 
 and in dissolving the injunction he would reverse his own decision 
 on a question of law. 94 As on such a motion the allegations of the 
 bill are to be taken as true, 95 the chancellor in dissolving his in- 
 junction virtually admits that his former interference with 
 defendant was unwarranted. 98 Conclusions of the pleader are not, 
 however, admitted by a motion to dissolve an injunction but only 
 facts which are well pleaded. 97 In New Jersey a motion to dis- 
 solve for want of equity in the bill will be heard before answer 
 filed, especially when the injunction was granted ex parte?* 
 
 91. Beard v. Hardin, Hardin La. Ann. 124; Putnam v. Forshay, 21 
 (Ky.), 12; Morris Canal & B. Co. v. La. Ann. 165. 
 
 Biddle, 4 N. J. Eq. 222; Hyre v. Michigan. — Schwarz v. Sears, Har. 
 
 Hoover, 3 W. Va. 11. See Fiede v. Ch. 440. 
 
 Schneidt, 99 Wis. 201, 74 N. W. 798. New York.— Schermerhorn v. New 
 
 92. Gossard Co. v. Crosby, 132 York, 3 Edw. Ch. 119. 
 
 Iowa, 155, 109 N. W. 483, 6 L. R. A. North Carolina.— Lloyd v. Heath, 
 
 (U. S.) 1115. 45 N. C. 39. 
 
 93. Cooper v. Alden, Harr. Ch. Virginia. — Peatross v. McLaughlin, 
 (Mich.) 72, 84. 6 Grat. 64. 
 
 The injunction may be dissolved on West Virginia. — Ludington v. Tif- 
 
 a special plea of want of equity. Ed- fany, 6 W. Va. 11. 
 
 dred v. Camp, Harr. Ch. (Mich.) 162. 96. Schwarz v. Sears, Harr. Ch. 
 
 94. Minturn v. Seymour, 4 Johns. (Mich.) 440. 
 
 Ch. (N. Y.) 173. 97. White v. Young Men's Chria- 
 
 95. Georgia.— Semmer v. Colum- tian Ass'n, 233 111. 526, 84 N. E. 658. 
 bus, 19 Ga. 471. 98. Morris Canal Co. v. Biddle, 4 
 
 Illinois.— Bennett v. McFadden, 61 N. J. Eq. 222; Woodhull v. Neafie, 2 
 
 111. 334. N. J. Eq. 409. Court Rule IX is 
 
 Iowa. — Beeman v. Hexter, 98 Iowa, otherwise : " No motion to dissolve 
 
 378, 67 N. W. 270. an injunction before answer shall be 
 
 Louisiana. — Vance v. Cawthou, 32 entertained unless the defendant shall 
 
 471
 
 §§ 300, 301 Dissolution. 
 
 § 300. Same subject. — On a notice of a motion to dissolve 
 given before answer filed, an answer filed after notice, tbougb 
 filed ten days before the day fixed by the notice for the motion, 
 cannot be read in support of the motion, as the complainant has 
 the right to expect that the motion will proceed on the ease as it 
 stands at the time of notice." An answer signed by solicitor and 
 counsel, as solicitor and counsel of defendants, but sworn to by 
 only one of the two defendants is not the answer of the defendants 
 but of one only, and cannot, without the consent of complainant, 
 be read on the motion to dissolve, even as the answer of the defend- 
 ant who has sworn to it. 1 Where an injunction has been issued 
 without notice, a motion to dissolve may be made before answer. 2 
 A motion to dissolve an injunction restraining a suit at law will 
 not be granted before answer filed, on the ground that the bill 
 on the face of it shows no equity, where a discovery is sought. 3 
 On the hearing of a motion to dissolve the court has no power to 
 determine the entire case on the merits. 4 
 
 § 301. Rebuttal of answer on motion to dissolve. — The doc- 
 trine is asserted in numerous cases that averments in the answer 
 can not be contradicted by affidavits, on a motion to dissolve an 
 injunction. 5 So it is decided that a motion to dissolve an injunc- 
 tion issued on the bill by consent, must be considered solely upon 
 
 show good cause why an answer hath 4. Lively v. Hunter, 124 Ga. 616, 
 
 not been put in." 52 S. E. 544. 
 
 99. Cattell v. Nelson, 7 N. J. Eq. 5. United States. — Poor v. Carle- 
 
 122. ton, Fed. Cas. No. 11272, 3 Sumn. 
 
 1. Vaughn v. Johnson, 9 N. J. Eq. 70. 
 
 173. See, also, as to the practice Alabama. — Long v. Brown, 4 Ala. 
 
 where an answer purporting to be 622. 
 
 of several defendants is sworn to only Delaware. — Kersey v. Rash, 3 Del. 
 
 by part of them. Fulton Bank v. Ch. 321. 
 
 Beach, 2 Paige, 307, 6 Wend. 36; Georgia. — Lewis v. Leak, 9 Ga. 95. 
 
 Cooke v. Westall, 1 Madd. 265; Done Michigan. — Conner v. Allen, Harr. 
 
 v. Read, 2 Ves. & B. 310; Harris v. Ch. 371. 
 
 James, 3 Bro. C. C. 400. New Jersey. — Merwin v. Smith, 2 
 
 2. Metropolitan, etc., Exchange v. N. J. Eq. 182. 
 
 Board of Trade, 15 Fed. 847. New York. — Jacobs v. Miller, 10 
 
 3. Shotwell v. Smith, 20 N. J. Eq. Hun, 230 ; Evans v. Van Hall, Clarke 
 79. Ch. 22; Haight v. Case, 4 Paige, 525. 
 
 472
 
 Dissolution. 
 
 301 
 
 the questions raised by the answer, and that the complainant cannot 
 read affidavits in support of his title in rebuttal of averments in 
 the answer. 6 So on motion for, or to dissolve an injunction in 
 copyright cases, the question of allowing the complainant to read 
 affidavits to rebut averments in the answer as to his title, has been 
 settled in England adversely to complainant ; 7 and the Federal 
 courts have generally followed the English rule. But affidavits 
 which do not refer to title the complainant is generally allowed 
 to read in rebuttal of the answer. 8 And in a large number of 
 
 North Carolina. — Gentry v. Hamil- 
 ton, 38 N. C. 376; Thompson v. Al- 
 len, 3 N. C. 328. Compare Swindall 
 v. Bradley, 56 N. C. 353. 
 
 Pennsylvania. — Gillis v. Hall, 2 
 Brewst. 342. Compare Davis' Exrx. 
 v. Fulton, 1 Tenn. 121. 
 
 6. Farmer v. Calvert, etc., Pub. 
 Co., 1 Flipp. 228. 
 
 7. Norway v. Rowe, 19 Ves. Jr. 
 144, 151, 156; Piatt v. Button, 19 
 Ves. Jr. 447. 
 
 8. Farmer v. Calvert, etc., Pub. Co., 
 1 Flipp. 228, per Longyear, ft. : " In 
 the United States although a practice 
 seems to have grown up in some local- 
 ities to receive such affidavits, yet 
 whenever the question has been raised 
 and adjudicated, the decisions of the 
 courts, with scarcely an exception, 
 seem to have been quite to the con- 
 trary, and in conformity with the 
 English practice. Justice Grier, in 
 1850, in a patent case, Parker v. 
 Sears, 1 Fisher's Patent Cases, 94, 
 held that the United States Circuit 
 Courts were bound to follow the set- 
 tled rules of practice of the English 
 courts of equity in this respect, there 
 being no written rule of court to the 
 contrary, and refused to allow such 
 affidavits to be read. In 1868, in an- 
 other case, Goodyear v. Mullee, 3 
 Fisher's Patent Cases, 420, the same 
 learned judge allowed affidavits by 
 
 way of rebuttal to be read, but they 
 in no manner related to the question 
 of title. In the case of United States 
 v. Parrott, 1 McAllister, 271, 275, 276, 
 the United States Circuit Court for 
 California by McAllister, J., after an 
 able review and full consideration of 
 the authorities, English and Ameri- 
 can, including the case of Poor v. 
 Carleton, 3 Sumn. 70, held that affi- 
 davits as to the title after answer 
 could not be read on a motion for in- 
 junction to stay waste. In Brooks v. 
 Bicknell, 3 McLean, 250, 255, Justice 
 McLean quotes approvingly the lan- 
 guage of the court in Morphett v. 
 Jones, 19 Ves. 350, where it is said: 
 ' There are many cases of injunction 
 where you may reply to the answer 
 by affidavits, not on the question of 
 title, but on mere facts, as in the in- 
 stance of waste. On such questions 
 of fact, though not on the title, affi- 
 davits in reply to the answer may be 
 read.' The learned judge then quotes 
 from 1 Smith's Ch. Pr., where it is 
 said : ' If the plaintiff instead of ap- 
 plying for the injunction upon affida 
 vit, waits until the defendant has 
 answered, he must rest his case upon 
 the disclosures made by the answer, 
 and he is not entitled, either for the 
 purpose of obtaining or continuing an 
 injunction, to read affidavits in sup- 
 port of his motion in opposition to 
 
 473
 
 302 
 
 Dissolution. 
 
 cases it has been decided that affidavits may be admitted to contra- 
 dict the answer, 9 or in support of the complaint where the answer 
 is verified. 10 And in Montana it is decided that where an appli- 
 cation for the dissolution of a restraining order is supported by 
 affidavit, the plaintiff may under the Code 11 oppose the application 
 by either oral or written evidence. 12 
 
 § 302. Affidavits on motion to dissolve. — The affidavit of a 
 third party annexed to an answer cannot be read upon a motion to 
 dissolve an injunction upon the answer, where the complainant's 
 affidavit alone is annexed to the bill. 13 And on a motion to dis- 
 solve for want of equity, or on the answer which denies the equity, 
 the complainant cannot read affidavits in opposition to the motion, 14 
 but only in opposition to affidavits annexed to the bill. 15 On 
 motion to dissolve an injunction, affidavits in support of the in- 
 junction to contradict matters in the answer alleged to be 
 irresponsive to the bill, cannot be read, if the defendant's counsel 
 
 the answer,' and says : ' But cases of 
 waste or of mischief analogous to 
 waste, are an exception to this rule 
 where the affidavits do not refer to 
 title.' That was a patent case, and as 
 the affidavits did not refer to title, 
 they were allowed to be read. The 
 eurrent of authority seems to be all 
 one way, and opposed to the reception 
 of the affidavits." 
 
 9. California. — Delger v. Johnson, 
 44 Cal. 182. 
 
 Iowa.— Palo Alto B. & I. Co. v. 
 Mahar, 65 Iowa, 74, 21 N. W. 187. 
 
 New York. — See Minor v. Bucking- 
 ham, 8 Abb. Prac. 68. 
 
 North Carolina. — Blackwell Dur- 
 ham Tobacco Co. v. McElwee, 94 N. 
 C. 425; Howerton v. Sprague, 64 N. 
 C. 451. 
 
 Rhode Island. — Bradford v. Peck- 
 ham, 9 R. I. 250. 
 
 10. Alabama. — Henry v. Watson, 
 109 Ala. 335, 19 So. 413. 
 
 California. — Falkinburg v. Lucy, 
 35 Cal. 52, 95 Am. Dec. 76. 
 
 New York. — Fowler v. Burns, 20 N. 
 Y. Super. Ct. 637 ; Jaques v. Areson, 4 
 4 Abb. Prac. 282. But see Servoss v. 
 Stannard, 2 Code R. 56. 
 
 North Carolina. — Blackwell Dur- 
 ham Tobacco Co. v. McElwee, 94 N. 
 C. 425. 
 
 Wisconsin. — Starks v. Redfield, 52 
 Wis. 349, 9 N. W. 168. 
 
 11. Mont. Code Civ. Proc, §§ 875, 
 877, 878. 
 
 12. Butte & B. C. M. Co. v. Mon- 
 tana Ore P. Co., 21 Mont. 539, 55 
 Pac. 112. 
 
 13. Mulock v. Mulock, 26 N. J. Eq. 
 462; Gariss v. Gariss, 13 N. J. Eq. 
 320. 
 
 14. Brown v. Winans, 11 N. J. Eq. 
 267; Merwin v. Smith, 2 N. J. Eq. 
 182. 
 
 15. Gariss v. Gariss, 13 N. J. Eq. 
 320. 
 
 474
 
 Dissolution. § 303 
 
 disclaim and waive reliance on any irresponsive matter. 1 " But 
 affidavits, copies of which have been served on the adverse party, 
 may be used on the motion to dissolve. 17 An injunction will not 
 be dissolved upon a simple affidavit contradicting a material fact 
 alleged in the bill; but the defendant must put in his answer 
 denying the allegations, and then move to dissolve on the bill and 
 
 § 303. Dissolution on papers of original application. — On a 
 
 motion to dissolve an injunction upon the insufficiency of the 
 complaint, where on its face it appears that the plaintiff is not 
 entitled to any relief, the plaintiff is not allowed to offer addi- 
 tional affidavits. 19 And a similar rule exists under the California 
 Code of Procedure. 20 Where a temporary injunction is granted 
 on a petition which does not state a cause of action, the injunction 
 may be dissolved, because of the defect in the petition, on a notice 
 which states that the motion to dissolve will be made on the peti- 
 tion, and the affidavits on which the injunction was granted, and 
 on such other affidavits as the moving party may deem proper 
 to use in support of his motion. 21 An injunction is properly dis- 
 solved where the statements in the bill on which its equity depends 
 are not stated as in the complainant's own knowledge and are not 
 supported by any affidavits of their truth. 22 In Louisiana it is 
 decided that if it be shown that the party claiming the injunction 
 was not present and did not take the oath, as certified by the clerk 
 who issued the writ, it will be dissolved and set aside because no 
 affidavit was made as required by law. 23 And where an injunc- 
 tion is applied for it is held that there should be a special affidavit 
 of the truth of all the material facts upon which the application 
 
 16. Miller v. English, 6 N. J. Eq. N. W. 187; Howerton v. Sprague, 64 
 304. N. C. 451, 454. 
 
 17. Morris Canal, etc., Co. v. Mat- 20. Falkinburg v. Lucy, 35 Cal. 52, 
 thiesen, 17 N. J. Eq. 385. 95 Am. Dec. 76. 
 
 18. Strange v. Longley, 3 Barb. 21. Kemper v. Campbell, 45 Kan. 
 Ch. (N. Y.) 650. 529, 26 Pac. 53. 
 
 19. Palo Alto Banking & Invest- 22. Lee v. Clark, 49 Ga. 81. 
 ment Co. v. Mahar, 65 Iowa, 74, 21 23. Barrow v. Richardson, 23 La. 
 
 Ann. 203. 
 
 475
 
 § 304 Dissolution. 
 
 is founded and if the injunction is issued upon the common affi- 
 davit in the form ordinarily annexed to an answer it will be dis- 
 solved very much as a matter of course. 24 If the motion to dissolve 
 is made on the same papers on which the injunction wtis granted, 
 no proof is required from the moving party ; 25 and in such a case 
 the plaintiff cannot use new affidavits. 26 Under the New York 
 practice, the granting or denial of a motion to dissolve, founded 
 only on the papers on which the injunction was granted, does not 
 prejudice a subsequent application on affidavits, or upon the fail- 
 ure of the complaint to set forth a cause of action. 27 
 
 § 304. Answer as equivalent only to an affidavit ; counter 
 affidavits. — In some States, the answer is not now as it formerly 
 was, conclusive of the defendant's right to a dissolution, when it 
 is direct and unqualified in its denials of the material allegations 
 of the bill, but has the effect of an affidavit only, and may be 
 rebutted by the complainant who may introduce affidavits on the 
 motion to dissolve, to oppose the defendant's answer and to sup- 
 port his own complaint. This is the case in North Carolina, 28 
 Florida, 29 New York, 30 Iowa, 32 and Rhode Island, where on a 
 
 24. Youngblood v. Schamp, 15 N. the order. The Code, §§ 344, 345 — 
 J. Eq. 42. See, also, Hicks v. Derrick, and this presupposes action on the 
 17 Pa. Co. Ct. R. 605, holding that part of the judge based on the con- 
 a mere general affidavit is not suffi- sideration of all the evidence. The 
 cient to support a preliminary in- answer is not now, as formerly, when 
 junction. responsive to the bill, and fair and 
 
 25. Newbury v. Newbury, 6 How. frank in its statements conclusive 
 Pr. (N. Y.) 182. upon the question of a dissolution of 
 
 26. N. Y. Code Civ. Pro., § 627; the restraining order, but in the 
 Steuben Co. Bank v. Alberger, 75 N. words of the statute, § 344, ' A veri- 
 Y. 179, 184. tied answer has the effect only of an 
 
 27. N. Y. Civ. Code Pro., § 628. affidavit.' Howerton v. Sprague, 64 
 
 28. Blackwell Tobacco co. v. Mc- N. C. 451." 
 
 Elwee, 94 N. C. 425, per Smith, C. J. : 29. Indian Riv. Steamboat Co. v. 
 
 " The answer under the present prac- East Coast Trans. Co., 28 Fla. 387, 
 
 tice, in an application to vacate or 429, 10 So. 480, per Marry, J. : " Un- 
 
 modify an injunction issued upon the der chap. 1098, Laws of Florida, 
 
 complaint and its supporting affida- where the defendant in his answer 
 
 vits, is itself but an affidavit when shall have denied the statements of 
 
 verified, and then the plaintiff may the bill, or of the accompanying affi- 
 
 produce other proofs in support of davit, either party thereto shall have 
 
 476
 
 Dissolution. 
 
 §305 
 
 motion to dissolve an injunction the answer is considered an affi- 
 davit, and the complainant may use counter affidavits. 33 In Cali- 
 fornia, when the defendant moves to dissolve on the complaint and 
 answer, it has been decided that the answer will be treated, for all 
 of the purposes of the motion, as an affidavit, to which the plaintiff 
 is entitled on the hearing of the motion to reply by affidavits with- 
 out serving copies thereof on the defendant. 34 
 
 § 305. Dissolution on denials of answer. — The general rule 
 is that when all the material allegations of the bill upon which 
 the plaintiff's equities rest are fully denied by the sworn answer, 
 and the denial is of the same positive character as such allegations, 
 the injunction will be dissolved. 35 So in a recent case in Alabama 
 it is decided that where every material allegation contained in the 
 
 the right to introduce evidence in 
 support or denial of the bill or 
 answer before the injunction or other 
 summary order shall be dissolved, and 
 the chancellor shall dissolve or con- 
 tinue the order, or may require se- 
 curity, according to the weight of 
 evidence. The old rule is modified by 
 this statute to the extent of allowing 
 cither party to introduce evidence in 
 corroboration or denial of the bill or 
 answer and affidavits before the hear- 
 ing on the motion to dissolve, and 
 that the chancellor shall then de- 
 termine the matter according to the 
 weight of evidence. Sullivan v. Mo- 
 reno, 19 Fla. 200; Fuller v. Cason, 
 26 Fla. 476, 7 So. 870." 
 
 30. Under section 630 of the New 
 York Code, providing that a verified 
 answer has only the effect of an affi- 
 davit, the rule, that where the equi- 
 ties of the complaint are positively 
 denied by the answer the injunction 
 must be vacated, is abolished, and de- 
 nials in the answer have no more ef- 
 fect than denials in an affidavit. Mc- 
 Encroe v. Decker, 58 How. Pr. (N. 
 Y.) 250. 
 
 31. Krom v. Hogan, 4 How. Prac. 
 (N. Y.) 225. 
 
 32. Iowa Code provides that, in 
 case of a temporary injunction with- 
 out opportunity to the defendant to 
 show cause against it, application 
 may be made to vacate it, either upon 
 the ground that the order was im- 
 properly granted, or upon the asnwer 
 of defendants and affidavits, in which 
 latter case plaintiff may fortify his 
 application by counter affidavits. 
 Held, that defendant may base his 
 motion on the answer alone, and the 
 petition may then be supported by 
 affidavits. Palo Alto Banking & In- 
 vestment Co. v. Mahar, 65 Iowa, 74, 
 21 N. W. 187. 
 
 33. Bradford v. Peckham, 9 R. I. 
 250. 
 
 34. Delger v. Johnson, 44 Cal. 182. 
 
 35. Huron Waterworks Co. v. Hu- 
 ron City, 3 S. D. 610, 54 N. W. 652. 
 The rule was applied in Barr v. Col- 
 lier, 54 Ala. 39, where the answer de- 
 nied every fact stated in the bill 
 which would tend to establish the 
 usury charge. The rule laid down in 
 the text was applied in Grant 
 
 477
 
 g 305 
 
 Dissolution. 
 
 bill is unequivocally denied a respondent is entitled to a dissolu- 
 tion of an injunction unless it is apparent that irreparable mis- 
 chief will probably follow the dissolution or some peculiar condi- 
 ditions exist justifying a departure from the general rule. 36 An 
 answer, however, in order to be sufficient to warrant the dissolution 
 of an injunction, should deny the material allegations of the bill 
 or complaint in terms as clear and certain as those in which they 
 are expressed. 37 In the exercise of their discretion the courts feel 
 justified in following this general rule where the defendant has 
 
 County v. Colonial, etc., Mortgage 
 Co., 3 S. D. 390, 53 N. W. 746, where 
 in an action to quiet title all the equi- 
 ties of the complaint were fully and 
 positively denied. See, also, follow- 
 ing cases: 
 
 Alabama. — Mobile & W. R. Co. v. 
 Fowl River Lumber Co. (Ala. 1907), 
 44 So. 471; Shows v. Folmar, 117 
 Ala. 698, 23 So. 1007; Hays v. Al- 
 drich, 115 Ala. 239, 22 So. 465; Barr 
 v. Collier, 54 Ala. 39. 
 
 California. — Real Del Monte M. 
 Co. v. Pond Min. Co., 23 Cal. 84. 
 
 Florida. — Shaw v. Palmer (Fla. 
 1907), 44 So. 953. 
 
 Iowa. — Taylor v. Dickinson, 15 
 Iowa, 483; Anderson v. Reed, 11 
 Iowa, 177. 
 
 Miivnesota. — Pineo v. Heffelfinger, 
 29 Minn. 183; Armstrong v. San- 
 ford, 7 Minn. 49. 
 
 Mississippi. — Foxworth v. Magee, 
 48 Miss. 532. 
 
 Nevada. — Maguet, etc., Co. v. Page, 
 etc., Co., 9 Nev. 346. 
 
 New Hampshire. — Hollister v. 
 Barkley, 9 N. H. 230. 
 
 New Jersey. — Holdredge v. Gwynne, 
 18 N. J. Eq. 26. 
 
 New York.— Kuntz v. White Co., 8 
 N. Y. Supp. 505 ; Finnegan v. Lee, 18 
 How. Pr. 186. 
 
 Pennsylvania. — McCartney v. Cas- 
 nidy, 141 Pa. St. 453, 21 Atl. 778. 
 
 Wisconsin. — City of Menasha v. 
 Milwaukee & N. R. Co., 52 Wis. 414, 
 9 N. W. 396. 
 
 36. Johnson v. Howze (Ala. 1908), 
 45 So. 653. 
 
 37. United States. — Northern Pac. 
 R. Co. v. Barnesville & M. R. Co., 4 
 Fed. 298. 
 
 Alabama. — Columbus & W. R. Co. 
 v. Witherow, 82 Ala. 190, 3 So. 23. 
 
 Georgia. — Upson County R. Co. v. 
 Sharman, 37 Ga. 644; Thomas v. 
 Horn, 24 Ga. 481 ; Daniel v. Sapp, 20 
 Ga. 514. 
 
 Indiana. — Thompson v. Adams, 2 
 Ind. 151. 
 
 Maryland. — Sisk v. Garey, 27 Md. 
 401. 
 
 Mississippi. — Buckner v. Bierne, 9 
 Sm. & M. 304. 
 
 New Jersey. — Gibby v. Hall, 27 N. 
 J. Eq. 282; Kuhl v. Martin, 26 N. J. 
 Eq. 60; Teasey v. Baker, 19 N. J. 
 Eq. 61 ; Randell v. Morrell, 17 N. J. 
 Eq. 343. 
 
 New York.— Skinner v. White, 17 
 Johns. 357; Schermerhorn v. Merrill, 
 1 Barb. 511; Roberts v. Anderson, 2 
 Johns. Ch. 202. 
 
 North Carolina. — Rich v. Thomas, 
 57 N. C. 71; Thompson v. Mills, 39 
 N. C. 390. 
 
 Tennessee. — Yale v. Moore, 3 Tenn. 
 Ch. 76. 
 
 478
 
 Dissolution. 
 
 306 
 
 ample means and can be made to respond in damages in case the 
 dissolution of the injunction should prove injurious to the plain- 
 tiff and against the merits of his case. 28 Where the complaint 
 alleges the facts giving the right to an injunction on information 
 and belief, and such alleged facts are positively denied under oath 
 in the answer, a temporary injunction must be dissolved. 39 
 
 § 306. Dissolution on defendant's denial of equities of bill 
 
 It is said that the rule seems to be settled that the allowance of a 
 plea, which either constitutes a full defense to the plaintiff's whole 
 case or deprives him of all power to further prosecute his action, 
 will, if he holds an injunction, entitle the defendant to its disso- 
 lution. 40 And it may be stated as a general rule that where all the 
 equities of the complaint upon which a temporary injunction has 
 been granted are specifically and positively denied by the answer 
 
 Virginia. — Scott v. Loraine, 6 
 Munf. 117. 
 
 West Virginia. — Mason City Salt 
 & M. Co. v. Mason, 23 W. Va. 211. 
 
 Allegations 'which are not 
 denied by the answer should 
 be taken a* true on motion to dis- 
 solve. 
 
 United States. — Young v. Grundy, 
 
 6 Cranch, 51, 3 L. Ed. 149. 
 Maryland. — Briesch v. McCauley, 
 
 7 Gill, 189; Crouise v. Clark, 4 Md. 
 Ch. 403; Brown v. Stewart, 1 Md. 
 Ch. 87. 
 
 Mississippi. — Hooker v. Austin, 41 
 Miss. 717. 
 
 New Jersey. — Merwin v. Smith, 2 
 N. J. Eq. 182. 
 
 Tennessee. — Tyne v. Dougherty, 3 
 Tenn. Ch. 52. 
 
 38. In Caulfield v. Curry, 63 Mich. 
 594, 30 N. W. 191, the court said: 
 " The answer in this case squarely 
 meets all the allegations of the bill, 
 and denies them. The defendant 
 Holmes is responsible, and there is, 
 
 therefore, no occasion for the inter- 
 ference of the court with his action 
 until his fraud is established." And 
 in Blum v. Loggins, 53 Tex. 121, it 
 was held that the injunction should 
 be dissolved because " the equity of 
 the petition seems to be fully met and 
 denied by the sworn answers," citing 
 Fulgham v. Chevallier, 10 Tex. 519; 
 Hansborough v. Towns, 1 Tex. 59. 
 
 39. California. — Yuba County v. 
 Cloke, 79 Cal. 239, 21 Pac. 740. 
 
 Georgia. — Williams v. Garrison, 29 
 Ga. 503. 
 
 Michigan. — Caulfield v. Curry, 63 
 Mich. 594, 30 N. W. 191. 
 
 Nevada. — Perley v. Ferman, 7 Nev. 
 309. 
 
 North Carolina. — McConnick v. 
 Nixon, 83 N. C. 113. 
 
 40. Fulton v. Greasen, 44 N. J. 
 Eq. 443, 75 Atl. 827, holding that 
 the allowance of the plea will not ipso 
 facto dissolve the injunction, but that 
 a dissolution will generally be 
 granted, as. of course, on motion. 
 
 479
 
 m 
 
 Dissolution. 
 
 the injunction will be dissolved. 41 So a preliminary injunction 
 will generally be dissolved where the grounds of relief averred in 
 the bill are fully denied by the defendant's affidavits read on the 
 hearing of the application ; 42 and the equities of a bill being denied 
 by answer, an affidavit of the complainant, which affirms in general 
 terms only tie statements of the bill, does not overcome the denial, 
 
 41. United States. — Poor v. Carle- 
 ton, Fed. Cas. No. 11272, 3 Sumn. 70; 
 Nelson v. Robinson, Fed. Cas. No. 
 10114, 1 Hemp. 464. 
 
 Alabama. — Turner v. Stevens, 106 
 Ala. 546, 17 So. 706; Clay v. Powell, 
 85 Ala. 538, 5 So. 330, 7 Am. St. 
 Rep. 70; Morrison v. Coleman, 87 
 Ala. 655, 6 So. 374, 5 L. R. A. 384. 
 
 California. — Burnett v. Whitesides, 
 13 Cal. 156. 
 
 Georgia. — Crawford v. Ross, 39 Ga. 
 44; Rhodes v. Lee, 32 Ga. 470. 
 
 Illinois.— Farrell v. McKee, 36 111. 
 225. 
 
 Indiana. — Aurora & C. R. Co. v. 
 Miller, 56 Ind. 88; Doolittle v. Jones, 
 2 Ind. 81. 
 
 Iowa. — Phillips v. Watson, 63 
 Iowa, 28, 18 N. W. 659; Taylor v. 
 Dickinson, 15 Iowa, 483. 
 
 Maryland. — Webster v. Harding, 28 
 Md. 592; Hyde v. Ellery, 18 Md. 496; 
 Hutchins v. Hope, 12 Gill & J. 244. 
 
 Michigan. — Eldred v. Camp, Har. 
 Ch. 162. 
 
 Minnesota. — Knoblauch v. Minne- 
 apolis, 56 Minn. 321, 57 N. W. 927. 
 
 Mississippi. — Pass v. Dykes, 16 
 Miss. 92. 
 
 New Hampshire. — Hollister v. 
 Barkley, 9 N. H. 230. 
 
 New Jersey. — Bremer v. Day, 23 
 N. J. Eq. 418; Winslow v. Hudson, 
 21 N. J. Eq. 172; Morris Canal & B. 
 Co. v. Fagan, 18 N. J. Eq. 215; Jones 
 v. Sherwood, 6 N. J. Eq. 210. 
 
 New York. — Oppenheimer v. 
 Hirsch, 5 App. Div. 232, 38 N. Y. 
 
 Supp. 311; Kuntz v. C. C. White Co., 
 55 Hun, 609, 8 N. Y. Supp. 505; 
 American Grocer P. Co. v. Grocer 
 Pub. Co., 51 How. Prac. 402; Clark v. 
 Law. 22 How. Prac. 426; Blatchford 
 v. New York & N. H. R. Co., 5 App. 
 Prac. 276; Durant v. Einstein, 28 N. 
 Y. Super. Ct. 423. 
 
 North Carolina. — Perry v. Mi- 
 chaux, 79 N. C. 94; Woodfin v. 
 Beach, 70 N. C. 455; Green v. Phil- 
 lips, 41 N. C. 223. 
 
 Ohio. — Af sprung v. Althoff, 7 
 Ohio Dec. 550. 
 
 Pennsylvania. — Noble v. Becker, 3 
 Brewst. 550; Carpenter v. Burden, 2 
 Pars. Eq. Cas. 24. 
 
 Tennessee. — Lytton v. Steward, 2 
 Tenn. Ch. 586. 
 
 Texas. — Blum v. Loggins, 53 Tex. 
 121; Lively v. Bristow, 12 Tex. 60. 
 
 Virginia. — Spencer v. Jones, 85 
 Va. 172, 7 S. E. 180; Webster t. 
 Couch, 6 Rand. 519. 
 
 West Virginia. — Shonk v. Knight. 
 12 W. Va. 667; Arbuckle v. McClan- 
 ahan, 6 W. Va. 101. 
 
 Wisconsin. — Wilson v. Trustees of 
 Village of Oruro, 52 Wis. 131, 8 N. 
 W. 821. 
 
 But see Orleans Nav. Co. v. New 
 Orleans, 1 Mart. O. S. (La.) 23. 
 
 42. McCartney v. Cassidy, 141 Pa. 
 St. 453, 21 Atl. 778; Allen v. Haw- 
 ley, 6 Fla. 142; Kuntz v. White Co., 
 8 N. Y. Supp. 505; Liebstein v. New- 
 ark, 24 N. J. Eq. 200; Masterton v. 
 Barney, 11 N. J. Eq. 26; Kent v. De 
 Baun. 12 N. J. Eq. 220. 
 
 480
 
 Dissolution. § 306a 
 
 -and will not sustain a preliminary injunction. 43 The general rule 
 is subject to the qualification that the answer must be of a char- 
 acter which entitles it to a credit which is at least equivalent to 
 that of the complaint. 44 And the rule is held not to apply where 
 a continuance of the injunction is reasonably necessary for the 
 protection of the rights of either party to the litigation during the 
 pendency thereof. 45 
 
 § 306a. Same subject continued. — The general rule has been 
 applied where a railroad company was restrained by preliminary 
 injunction from laying its tracks on a street, on averments in the 
 bill and affidavits of fraud in procuring the consent of the authori- 
 ties, and where afterwards on motion to continue the injunction 
 the company presented affidavits denying the fraud, it being held 
 on appeal from the order of continuance that the injunction should 
 be dissolved. 46 And where a bill to enjoin the obstructing of a 
 stream alleged to be navigable requires an answer under oath, 
 which, when filed, denies categorically all the averments in the 
 bill as to the navigability of the stream, a temporary injunction 
 is properly dissolved. 47 And a fortiori where an injunction 
 is granted on a bill, the averments of which are on information 
 and belief, and are fully denied in the answer, and defendant is 
 responsible, the injunction must be dissolved. 48 On motion to dis- 
 
 43. Fuller v. Cason, 26 Fla. 476, 7 Brewer v. Day, 23 N. J. Eq. 418. 
 So. 870. See Sullivan v. Moreno, 19 44. Thompson v. Adams, 2 Ind. 
 
 Fla. 200, as to the effect of the 151; Sinnett v. Moles, 38 Iowa, 25; 
 
 Btatute providing that " when the Morris Canal & B. Co. v. Jersey City, 
 
 defendant in his answer shall have 11 N. J. Eq. 13. 
 
 denied the statement of the bill or of 45. Milwaukee Elec. Ry. & L. Co. 
 
 the accompanying affidavit, either v. Boadley. 108 Wis. 467, 84 N. W. 
 
 party shall have the right to intro- 870. 
 
 duce evidence in support or denial of 46. Union St. Ry. Co. v. Hazleton 
 
 the bill and accompanying affidavit & N. S. Electric Ry. Co., 154 Pa. St. 
 
 or answer, before the injunction . . . 442, 26 Atl. 557. 
 shall be dissolved." And see Shot- 47. Morrison v. Coleman, 87 Ala. 
 
 well v. Struble, 21 N. J. Eq. 31; 655, 6 So. 374. And see Leigh v. 
 
 Winslow v. Hudson, 21 N. J. Eq. Clark, 11 N. J. Eq. 110. 
 172; Dellett v. Kemble, 23 N. J. Eq. 48. Caulfield v. Curry, 63 Mich. 
 
 58; Dey v. Dey, 23 N. J. Eq. 88; 594, 30 N. W. 191; Hewitt v. Kuhl, 
 
 Moies v. O'Neill, 23 N. J. Eq. 207; 25 N. J. Eq. 24; Screw Mower Co. 
 
 v. Mittler, 26 N. J. Eq. 264. 
 
 481 
 31
 
 30' 
 
 Dissolution. 
 
 solve on the pleadings and evidence where the answer under oath 
 is responsive and denies the equities of the bill, and the complain- 
 ant has failed to sustain his allegations by proof and makes no 
 application for further time to take testimony, it is proper to 
 dissolve the injunction; and in such a case the sworn and re- 
 sponsive answer is evidence for defendant, though it be shown 
 aliunde that in making it he had no personal knowledge of the 
 facts. 49 
 
 § 307. Same subject ; discretion of court. — While the general 
 rule is as stated in the preceding sections, the dissolution, like the 
 granting of a temporary injunction, is largely a matter of judicial 
 discretion, 50 and will not always be ordered, even when the denial 
 in the answer is complete, where the dissolution of the injunction 
 would cause greater hardship to plaintiff than its continuance 
 would cause to defendant. 51 The court will not, ordinarily, enter- 
 
 49. Davis v. Hart, 66 Miss. 642, 
 6 So. 318. 
 
 50. United States. — Poor v. Carle- 
 ton, Fed. Cas. No. 11272, 3 Sumn. 70. 
 
 Alabama. — Harrison v. Yerby, 87 
 Ala. 185, 6 So. 3; Bibb v. Shackel- 
 ford, 38 Ala. 611. 
 
 California. — McCreery v. Broun, 
 42 Cal. 457. 
 
 Florida. — Carter v. Bennett, 6 Fla. 
 214. 
 
 Georgia.— Gullatt v. Thrasher, 42 
 Ga. 429; Crutchfied v. Danilly, 16 
 Ga. 432; Swift v. Swift, 13 Ga. 140. 
 
 Indiana. — Spicer v. Hoop, 51 Ind. 
 365. 
 
 Minnesota. — Hamilton v. Wood, 55 
 Minn. 482, 57 N. W. 208. 
 
 Mississippi. — Bowen v. Hoskens, 45 
 Miss. 183. 
 
 Montana. — Cotter v. Cotter, 16 
 Mont. 63, 40 Pac. 63. 
 
 New Hampshire. — Hollister v. 
 Barkley, 9 N. H. 230. 
 
 New Jersey. — Snyder v. Seeman, 
 
 41 N. J. Eq. 405, 5 Atl. 637; Cregar 
 v. Creamer, 27 N. J. Eq. 281. 
 
 New York. — Grill v. Wiswall, 82 
 Hun, 281, 31 N. Y. Supp. 470; Du- 
 bois v. Budlong, 23 N. Y. Super. Ct. 
 700. 
 
 North Carolina. — James v. Lemly, 
 37 N. C. 278. 
 
 Rhode Island. — Bradford' v. Peck- 
 ham, 9 R. I. 250. 
 
 Texas.— Hart v. Mills, 38 Tex. 517. 
 
 Virginia. — Jenkins v. Waller, 80 
 Va. 668. 
 
 51. United States. — See Poor v. 
 Carleton, 3 Sumn. 70, Fed. Cas. No. 
 11272. 
 
 Alabama. — Scholze v. Steiner, 100 
 Ala. 148, 14 So. 552; Harrison v. 
 Yerby, 87 Ala. 165, 6 So. 3. 
 
 California. — See McCreery v. 
 Brown, 42 Cal. 457; De Godey v. 
 Godey, 39 Cal. 157; Hicks v. Michael, 
 15 Cal. 117. 
 
 Georgia. — See Cox v. Mayor, 18 
 Ga. 735; Loyless v. Howell, 15 Ga, 
 554. 
 
 482
 
 Dissolution. 
 
 §307 
 
 tain a motion to dissolve upon bill and answer merely, where the 
 complainant's right is supported by evidence before the court, or 
 within its control, regularly taken in the cause, and on which the 
 complainant intends to rely on the final hearing. 52 And where 
 the rights of the defendant are protected by the injunction bond 
 furnished by plaintiff, while the plaintiff has no security and the 
 dissolution of the injunction will leave him at defendant's mercy, 
 the discretion of the court as to dissolution or continuance should 
 be exercised in favor of the party most likely to be injured. 53 
 
 Iowa. — Walker v. Stone, 70 Iowa, 
 103, 30 N. W. 39. 
 
 New Jersey. — See Camden R. Co. v. 
 Stewart, 18 N. J. Eq. 489; Irick v. 
 Black, 17 N. J. Eq. 190; Bechtel v. 
 Carslake, 11 N. J. Eq. 244; Chetwood 
 r. Brittan, 2 N. J. Eq. 438. 
 
 South Dakota. — Huron Waterworks 
 Co. v. Huron City, 3 S. D. 610, 54 N. 
 W. 652. 
 
 Virginia. — Kahn v. Kerngood, 80 
 Va. 342; Baltimore, etc., R. Co. v. 
 Wheeling, 13 Gratt. 58. 
 
 In Stewart v. Johnston, 44 Iowa, 
 435, it was said: "The general rule 
 doubtless is that where all the ma- 
 terial allegations of a petition for 
 an injunction are fully and satisfac- 
 torily denied in the answer, upon the 
 personal knowledge of the defendant, 
 the preliminary injunction, if one has 
 been allowed, will be dissolved upon 
 motion. But to this rule there are 
 some exceptions, and one of them is 
 where the gravamen of the petition is 
 fraud," citing Sinnett v. Moles, 38 
 Iowa, 25, and Dent v. Summerlin, 12 
 Ga. 5. It was also held that the rul- 
 ing of a court continuing a prelimi- 
 nary injunction is largely a matter 
 of discretion, and not to be reversed 
 unless there has been abuse of discre- 
 tion. In Poor v. Carleton, 3 Sumn. 
 75, Story, J., after a review of the 
 authorities, declares he would have 
 
 been sorry to find that any such prac- 
 tice had been established as that an 
 injunction should, at all events, be 
 dissolved upon the mere denial of the 
 answer of the whole merits of the 
 bill; that there are many cases in 
 which such a practice would be most 
 mischievous. He says that the ques- 
 tion of dissolution, after the coming 
 in of the answer, is one addressed to 
 the sound discretion of the court, and 
 adds, that if the authorities properly 
 considered should seem to establish a 
 contrary doctrine, he would hesitate 
 to follow them in a mere matter of 
 practice subversive of the very ends 
 of justice. 
 
 52. Stevens v. Stevens, 24 N. J. 
 Eq. 76. 
 
 5.3. Huron Waterworks Co. v. Hu- 
 ron City, 3 S. D. 610, 54 N. W. 652. 
 As was said in Hicks v. Compton, 18 
 Cal. 210: " The rights of the defend- 
 ant are protected by a bond and no 
 injury can result to them from a con- 
 tinuance of the injunction. The 
 plaintiff has no security whatever, 
 and the dissolution of the injunction 
 leaves him at the mercy of the de- 
 fendants. The granting and continu- 
 ing of injunctions of this nature are 
 to some extent matters of discretion, 
 and this discretion should always be 
 exercised in favor of the party most 
 liable to be injured." 
 
 483
 
 308 
 
 Dissolution. 
 
 § 308. Same subject. — The rule is not imperative that a tem- 
 porary injunction must be dissolved in all cases where the answer 
 fully denies all the allegations of the bill. The court has a wide 
 latitude of discretion, and, if the continuance of the injunction 
 will probably cause less injustice and inconvenience to defendant 
 than its dissolution will to complainant, the court is at liberty to 
 continue it until final hearing. j4 And whether the court will dis- 
 solve an injunction on the coming in of the answer or let it stand 
 until final hearing, is a matter of discretion.™ And an injunction 
 will not be dissolved before final hearing, if, notwithstanding a 
 denial of plaintiff's equities by the answer, the court believes, 
 from the circumstances, that it is quite probable that plaintiff's 
 allegations will prove true. 56 
 
 54. Harrison v. Yerby, 87 Ala. 185, 
 G So. 3. An injunction was dissolved 
 on hearing on bill and answer, the 
 complainant having been tardy in his 
 application for it, and its continuance 
 being likely to entail serious loss and 
 damage to innocent parties. The 
 court in such cases as this will weigh 
 the comparative advantages and dis- 
 advantages of the injunction to the 
 parties. Scanlan v. Howe, 24 N. J. 
 Eq. 273, 277. See, also, Murray v. 
 Elston, 23 N. J. Eq. 127. Stilt v. 
 Hilton, 30 N. J. Eq. 579, 587, per 
 Curiam: " Where the facts on which 
 the equity of a bill rests are posi- 
 tively and explicitly denied by the 
 defendant, on his own personal knowl- 
 edge, and not merely by way of argu- 
 ment or inference, or upon informa- 
 tion and belief, the general rule is, 
 the injunction will be dissolved. Suf- 
 fern v. Butler, 3 C. E. Or. 220; 
 Everly v. Rice, 3 Gr. Ch. 553: Boston 
 Franklinit<- f'o. v. N. J. Zinc Co., 2 
 Beas. 215. To relieve a case from the 
 operation of this rule, it must appear 
 that ;i dissolution will deprive the 
 party holding the injunction of all re- 
 
 lief, if he is finally successful, or 
 that a dissolution will work some 
 other irreparable mischief, or place 
 him in a position of peculiar hard- 
 ship. Greenin v. Hoey, 9 N. J. Eq. 
 137; Scott v.Ames, 11 N. J. Eq. 261." 
 
 Where the denials in the an- 
 swer are not full and positive, 
 and defendants are insolvent, a 
 dissolution of a temportry injunc- 
 tion, based on such denials, will not 
 be granted. Kinney v. Ensmenger, 
 87 Ala. 340, 6 So. 72; Vreeland v. 
 N. J. Stone Co., 25 N. J. Eq. 140. 
 
 An injunction restraining an 
 action at law. issued on a bill 
 by plaintiffs, as administrators, will 
 not be dissolved on defendant's an- 
 swer, alleging that the money sought 
 to be received did not belong to the 
 estate, but was her individual prop- 
 erty, by gift from intestate, and was 
 deposited with a firm, of which one 
 of the administrators was a member, 
 as the burden of proving such gift is 
 on defendant. Jackson v. Jackson, 
 91 Ala. 292, 10 So. 31. 
 
 55. Jenkins v. Waller. 80 Va. 668. 
 
 56. Stees v. Kranz, 32 Minn. 313, 
 
 484
 
 Dissolution. 
 
 §309 
 
 § 309. Answers not responsive. — On a motion to dissolvp an 
 injunction on bill and answer, the answer is to be regarded only 
 so far as it is responsive to the bill ; affirmative matters of defense 
 and matters in avoidance are not to be considered. 57 Thus on a 
 motion on the bill and answer to dissolve a preliminary injunction 
 restraining school directors from making an unauthorized ex- 
 penditure for a school house, an averment in the answer that com- 
 plainant knew that the contract was being made, and did not pro- 
 test, is new matter in confession and avoidance, and cannot be 
 considered, as it is not responsive to the bill. 58 And in a suit by 
 material men who have obtained judgment establishing their lien 
 to enjoin the sale of a property under a judgment of other ma- 
 terial men, an allegation in the answer that complainants had 
 consented to the vacation of an order staying the sale made by the 
 Circuit Court, on condition that defendant- srive security for the 
 
 20 X. W. 241. Otherwise if the state- 
 ments of the bill are improbable. 
 Fowler v. Roe. 11 X. J. Eq. 367. 
 
 57. Farris v. Houston. 7S Ala. 250: 
 Buchanan v. Buchanan, 72 Ala. 55; 
 Jones v. Ewing, 56 Ala. 360: Hooker 
 v. Austin, 41 Miss. 717: Columbus 
 & W. Ry. Co. v. Witherow. S2 Ala. 
 190, 3 So. 23; Morris Canal Co. v. 
 Jersey City, 12 N. J. Eq. 227: Arm- 
 strong v. Potts. 23 X. J. Eq. 92. 
 
 A bill by a steamboat com- 
 pany alleged that it had leased from 
 a railroad company a dock in a nav- 
 igable river, with the exclusive right 
 to use the same, and that the whole 
 of said dock was necessary for the 
 transaction of its business, and asked 
 to enjoin another steamboat company 
 from using the dock. A preliminary 
 injunction having been granted, de- 
 fendant answered, alleging that in a 
 proceeding by it against the railroad 
 company the railroad commission had 
 decided that the charter terminus of 
 the railroad company was at said 
 dock, and that the dock and pier were 
 
 part of its main line, and that by it* 
 lease it had attempted to vest in com- 
 plainant the exclusive use of said 
 dock, and ordered that the railroad 
 company extend to defendant the 
 same privileges at said dock as werp 
 extended to complainant. Complain 
 ant was not a party to that proceed 
 ing. The answer set up the decision 
 of the commission as a bar to com- 
 plainant's right to the injunction. 
 Held, that the answer was not respon 
 sive to the bill, and could not be con 
 sidered on motion to dissolve the pre- 
 liminary injunction. Indian River 
 Steamboat Co. v. East Coast Transp. 
 Co., 28 Fla. 3S7, 10 So. 480. And see 
 Randall v. Morrell. 17 X. J. Eq. 343. 
 See § 313 herein. 
 
 58. Appeal of Luburg \Pa.), 17 
 Atl. 245. 23 VY. X. C. 454: Carson v. 
 Coleman. 1 1 X. J. Eq. 106 : Brewster 
 v. Newark, 11 X. J. Eq. 114: Society, 
 etc.. v. Low. 17 X. J. Eq. IP; John- 
 ston v. Corey. 25 X. J. Eq. 311: Et 
 tenborough v. Bishop. 26 X. J. Eq. 
 262. 
 
 -185
 
 § 310 Dissolution. 
 
 payment of complainants' claim in full on reversal of the judg- 
 ment of the Circuit Court on appeal, will not be considered, such 
 allegation being new matter, not in response to any of the charges 
 of the bill. 59 And where an abutting owner enjoined a railroad 
 company from constructing an embankment in the street, on the 
 ground that such construction was without authority of law, and 
 the 'answer set up condemnation proceedings had prior to the 
 incorporation of the town, to which the original owner was a party, 
 it was held that this allegation was new affirmative matter and 
 could not be considered on the motion to dissolve. 60 In such cases 
 of irresponsive answers the injunction will not be dissolved on 
 motion, but will be continued to the hearing. 61 
 
 § 310. Same subject; exceptions. — The filing of exceptions to 
 portions of an answer as not in response to the bill is no objec- 
 tion to the dissolution of the injunction, if the parts of the answer 
 not thus excepted to contain a sufficient denial of the equities of 
 the bill ; 62 in such a case, on motion to dissolve an injunction, the 
 courts will look into such facts only of the answer as are respon- 
 sive to the bill, and will not consider a new equity set up in the 
 answer to avoid that disclosed in the bill. 63 If parts of an answer 
 are responsive to the bill, upon matters within the defendant's 
 knowledge, and fully deny the equity upon which the injunction 
 was based, it is no reason for denying the motion to dissolve, that 
 the answer in other respects is not fully responsive, and that some 
 of the exceptions to it are well taken. 64 And the court will hear 
 
 59. Hazelhurst v. Sea Isle City Iowa, 366. See, also, Ford v. Taylor, 
 Hotel Co. (N. J. Ch.), 25 Atl. 201. 140 Fed. 356. 
 
 See, also, West Jersey R. Co. v. 62. Indian River Steamboat Co. v. 
 
 Thomas, 21 N. J. Eq. 205; Eaton v. East Coast Transp. Co., 28 Fla. 387, 
 
 Jenkins,' 19 N. J. Eq. 362. 10 So. 480. See Doe v. Roe, Hopk. 
 
 60. Columbus & W. Ry. Co. v. Ch. 276. 
 
 Witherow, 82 Ala. 190, 3 So. 23. 63. Yonge v. McCormick, 6 Fla. 
 
 61. Hayes v. Billings, 69 Iowa, 387, 368; McKinne v. Dickenson, 24 Fla. 
 28 N. W. 652; Huskins v. McElroy, 366, 5 So. 34. 
 
 62 Iowa, 508, 17 N. W. 670; Fargo v. 64. Mitchell v. Mitchell, 20 N. J. 
 
 Ames, 45 Iowa, 494; Judd v. Hatch, Eq. 234; McMahon v. O'Donnell, 20 
 31 Iowa, 491; Shricker v. Field, 9 N. J. Eq. 306; Stitt v. Hilton, 31 N. 
 
 486
 
 Dissolution. § 311 
 
 argument upon exceptions to the answer and upon the motion to 
 dissolve at the same time. 65 A test as to the answer being respon- 
 sive is, whether the defendant could, on cross-examination as a 
 witness at law, be examined as to the matter he states in anticipa- 
 tion of his defense. Thus, if plaintiff state a certain act or contract 
 as the foundation of his equity, it is responsive for the defendant 
 to state the whole of such act or contract as in truth it was. 66 And 
 if the omission of some allegation would furnish ground of excep- 
 tion to the answer, the allegation, to the extent to which it is 
 required, whether negative or affirmative, is responsive ; but if the 
 whole subject matter of the allegation in the answer might have 
 been left out, then the allegation in the answer upon that subject 
 is not responsive. 67 
 
 § 311. Dissolving an answer after exceptions to it In 
 
 England an order nisi to dissolve the common injunction, after 
 exceptions to the answer have been filed by plaintiff, is irregular ; 
 for in such a case the exceptions must be disposed of before the 
 motion to dissolve is in order. 68 The defendant is at liberty, how- 
 ever, to obtain an order nisi to dissolve the injunction, as soon as 
 his answer is filed and before exceptions to it can be delivered. 69 
 
 J. Eq. 285; McGee v. Smith, 16 N. J. eration was, and it was held to be 
 
 Eq. 463. responsive. So, in Pusey v. Wright, 
 
 65. Wyckoff v. Cohcran, 4 N. J. 7 Casey (Pa.) 387, me chief justice 
 Eq. 420. said: "If a contract be set forth a 
 
 66. Eaton's Appeal, 66 Pa. St. denial that it exists, modo et forma, 
 483, 490; Dunham v. Gates, 1 Hoff, would not be good, for this is subject 
 Ch. 185. In Dunham v. Jackson, 6 to the implication that it existed in 
 Wend. (N. Y.) 22, where a bill was some other form. To avoid this, the 
 filed to redeem stock, and it alleged defendant should state how it existed 
 the stock to have been pledged for a and wherein it had no existence." 
 certain sum, an allegation of the an- 67. Bellows v. Stone, 18 N. H. 
 swer that it was pledged at the same 465; Bell v. Farmers' Deposit Nat. 
 time for an additional sum, was held Bank, 131 Pa. St. 318, 332, 18 Atl. 
 to be responsive. In Eberly v. Groff, 1079. 
 
 9 Harris (Pa.), 251, the bill charged 68. Williams v. Davis, 1 Sim. & 
 
 that an assignment was without con- Stu. 262; Howes v. Howes, 1 Beav. 
 
 aideration, the answer denied that it 197. 
 
 was without consideration, and pro- 60. Howes v. Howes, 1 Beav. 197. 
 
 ceeded to set forth what the consid- i 
 
 487
 
 § 312 Dissolution. 
 
 But in this country exceptions to an answer, though not disposed 
 of are not a bar to the dissolution of an injunction upon the 
 denials of the answer, if some of such denials fully deny the equity 
 upon which the injunction was based, though other of the denials 
 were not responsive to the bill, and as to them the exceptions were 
 well taken. 70 And the exceptions to the answer, as being irre- 
 sponsive, evasive and insufficient, may be considered upon the 
 hearing of the motion to dissolve. 71 
 
 § 312. Answers not denying admit; evasive answers. — On a 
 
 motion to dissolve an injunction on bill and answer, the statements 
 of the bill are to be received as true, so far as they are not denied 
 by the answer, and the answer will be available only so far as it 
 is responsive to the bill. 72 But where there are several defendants, 
 having a common defense, and some of them have answered, deny- 
 ing fully and positively all the allegations of the bill, the bill is 
 not to be taken pro confesso as to the defendants who have not 
 answered. 73 And an evasive and equivocal answer will be strongly 
 construed against the defendant. 74 And an answer is not sufficient. 
 
 70. Mitchell v. Mitchell, 20 N. J. tween the English common injunction. 
 Eq. 234; Indian Riv. Steamboat Co. which was granted of course on cer 
 v. East Coast Trans. Co., 28 Fla. 387, tain default of the respondent, and a 
 432 10 So. 480, 29 Am. St. Rep. special injunction (like the present). 
 25g. granted on special application and 
 
 71. Salmon v. Claggett, 3 Bland, oath. Poor v. Carleton, 3 Sumn. 73/ ~ 
 Ch. (Md.) 125, 131. In Bradford v. 72. Hooker v. Austin, 41 Miss. 
 Peckham, 9 R. I. 250, the court says : 717; Alexander v. Ghiselin, 5 Gill 
 "For the purposes of this motion to (Md.), 138; Columbus, etc., R. Co. 
 dissolve, the answer is considered as v. Witherow, 82 Ala. 190, 194; Young 
 merely an affidavit, and the complain- v. Grundy, 6 Cranch, 51. 
 
 ant may in proper cases offer counter 73. Walsh v. Smyth. 3 Bland, Ch. 
 
 affidavits; and he may also, by his (Md.) 9, 16. 
 
 exceptions, or verbally, argue as to 74. Forney v. Calhoun County, 84 
 
 the insufficiency of the answer, and Ala. 215, 4 So. 153, per SomerviUe. 
 
 both the answer and exceptions must J. : " The court refused to dissolve 
 
 be considered, as far as is necessary the injunction on the denials of the 
 
 to decide the question of continuing answer, which are equivocal and 
 
 the injunction. The apparent con- evasive in their nature. The defend 
 
 flict of practice as to dissolving in- ant's conduct is significant in peremp 
 
 junctions on filing an answer arises, torily declining to answer the inter 
 
 we think, from not distinguishing be- rogatories to the bill, which seek to 
 
 488
 
 Dissolution. 
 
 313 
 
 if it merely denies an inference, instead of denying the facts them- 
 selves, as alleged in the bill. 75 The general rale that an injunction 
 will not be dissolved on motion, where the facts alleged in the 
 petition are not denied by answer, 76 does not, however, apply where 
 the issues raised by the motion to dissolve are not of fact, but are 
 all of law; as, for instance, where the only issue is as to the 
 validity of a statute. 77 But denials of legal conclusions, and not 
 the facts stated in the bill, can avail nothing. 78 
 
 § 313. Answers admitting and then avoiding by new defense. 
 — Where the defendant, in his answer to an injunction bill, admits 
 the equity of the bill but sets up new matter of defense on which 
 he relies, by way of avoidance, the injunction will not be dissolved 
 on motion, but continued until the hearing.' 9 Thus, where the. 
 
 sift his conscience as to his alleged 
 silence when standing by and witness- 
 ing the construction of the court 
 house upon the land which he admits 
 in his answer he had consented to 
 dedicate to such uses, upon a condi- 
 tion which was of a nature easily to 
 be waived by such silence. It must 
 be presumed that his answers, if un- 
 equivocally made, would have been 
 conclusive against him as to this 
 matter of estoppel, so clearly charged 
 in the bill." And see Woodruff v. KSt- 
 ter, 26 N. J. Eq. 87 ; Gibby v. Hall, 27 
 N. J. Eq. 282; Large v. Ditmars, 27 
 N. J. Eq. 283 ; Louisville N. R. Co. v. 
 Philyaw, 94 Ala. 463, 10 So. 83. 
 
 75. Teasey v. Baker, 19 N. J. Eq. 61. 
 
 76. Peatross v. McLaughlin. 6 
 Gratt. (Va.) 64. 
 
 77. Burlington, C. R. ft N. Ry. Co. 
 v. Dey, 82 Iowa, 312, 48 N. W. 98; 
 Reeves v. Cooper, 12 N. J. Eq. 223. 
 
 78. Columbus & Western R. Co. v. 
 Witherow, 82 Ala. 190, 3 So. 23. 
 
 79. United States. — Robinson v. 
 Cathcart, Fed. Cas. No. 11946. 2 
 Cranch C. C. 590. 
 
 Alabama. — Jackson v. Jackson, 84 
 Ala. 343, 4 So. 174; Columbus & W. 
 R. Co. v. Witherow, 82 Ala. 190, 3 
 So. 23; Farris v. Houston, 78 Ala. 
 250. 
 
 Florida. — Indian River Steamboat 
 Co. v. East Coast Tr. Co., 28 Fla. 387, 
 10 So. 480, 29 Am. St. Rep. 258; 
 Yonge v. McCormick, 6 Fla. 368, 63 
 Am. Dec. 214. 
 
 Georgia. — Hargraves v. Jones, 27 
 Ga. 233; Moore v. Ferrell, 1 Ga. 7. 
 
 Iowa. — Huskins v. Mcllvoy, 62 
 Iowa, 508, 17 N. W. 470. 
 
 Maryland. — Hutchins v. Hope. 12 
 Gill ft J. 244; Chesapeake & O. C 
 Co. v. Baltimore & O. R. Co., 4 Gill 
 ft J. 1. 
 
 Mississippi. — Hooker v. Austin, 41 
 Miss. 717. 
 
 New Jersey. — Vreeland v. New Jer 
 sey Stone Co., 25 N. J. Eq. 140 ; Arm- 
 strong v. Potts, 23 N. J. Eq. 92 ; Van 
 Syckel v. Emery, 18 N. J. Eq. 387. 
 
 New York. — Minturn v. Seymour, 4 
 Johns. Ch. 498; Simson v. Hart, 14 
 Johns. 63. 
 
 North Carolina. — Carter v. Hoke, 
 
 489
 
 §313 
 
 Dissolution. 
 
 answer admits the contract in issue, but denies the correctness of 
 plaintiff's construction of it, this is not such a denial as, per se, 
 entitles defendant to a dissolution of an injunction. 80 And the rule 
 above expressed always prevailed in Maryland, and in New York, 
 under her old chancery practice. 81 
 
 64 N. C. 348; Russ v. Gulick, 64 N. 
 C. 301. 
 
 Pennsylvania. — Appeal of Luburg, 
 17 Atl. 245 23 Wkly. Notes Cas. 454. 
 
 West Virginia. — Noyes v. Vickers, 
 39 W. Va. 30, 19 S. E. 429. 
 
 See § 309 herein. 
 
 80. Hughes v. Tinsley, 80 Va. 259. 
 
 81. Salmon v. Clagett, 3 Bland, Ch. 
 (Md.) 125, 162, per Bland, Ch.: "In 
 one case reported among the English 
 adjudications it is laid down as a 
 general rule, that where a plain 
 equity set forth by the bill is admit- 
 ted by the answer, but endeavored to 
 be avoided by another fact, the in- 
 junction shall always be continued to 
 the hearing. Allen v. Crabcroft, Bar- 
 nardiston Ch. 373. This unquestion- 
 ably, is the rule by which this court 
 is governed on a motion to dissolve, 
 made on the coming in of the answer. 
 It appears to me to be according to 
 the reason of the thing; Minturn v. 
 Seymour, 4 Johns. Ch. 497; and I 
 am much inclined to believe, that this 
 very case has been mainly instru- 
 mental in establishing that rule in 
 this court. But it is not mentioned 
 in any English abridgment, digest, 
 compilation, or book, other than that 
 book wherein it is reported, which 
 Lord Mansfield absolutely forbid be- 
 ing cited, declaring that there was 
 no one case in it which was right 
 throughout. Zouch v. Woolston, 2 
 Burr. 1142, n.; Boardman v. Jackson, 
 2 Ball & Bea. 386. Hence there is 
 reason to believe, that although this 
 case must be admitted as right 
 
 throughout here, it may not be 
 deemed so in England. Williams v. 
 Hall, 1 Bland, 193 n. In this court 
 the question presented, on a motion 
 to dissolve on the coming in of the 
 answer, is not one which always or 
 necessarily involves the merits of the 
 whole case, as set forth in the bill; 
 it may be, and not unfrequently is, 
 much narrower, because this court 
 recognizes the distinctions between 
 the case on which the injunction 
 rests, the material head of equity 
 which entitles the plaintiff to an in- 
 junction, 1 Fowl Exch. Pr. 226. and 
 that which forms the whole founda- 
 tion of his prayer for relief, which 
 although often are not necessarily one 
 and the same case; and therefore, this 
 question, on a motion to dissolve, 
 properly extends only to the equitable 
 grounds of the injunction and no fur- 
 ther. Doe v. Roe, 1 Hopkins, 276. If 
 the answer expressly denies all the 
 facts stated in the bill, or such a ma- 
 terial part of them as leaves not 
 enough to furnish an equitable foun- 
 dation for the injunction, it must be 
 dissolved. If, on the other hand, the 
 defendant does not deny, or omits to 
 respond to those facts which consti- 
 tutes the case on which the injunc- 
 tion rests, it must be continued. 
 Hence, no matter, advanced by way 
 of avoidance in the answer, is to have 
 any weight on a motion to dissolve, 
 any more than if it had been adduced 
 in the form of a plea. Such matter 
 in either shape, if sustained by proof, 
 or admitted by setting the case down 
 
 490
 
 Dissolution. 
 
 §314 
 
 § 314. Qualified answers ; on information and belief. An in- 
 junction will not be dissolved, on the defendant's answer, if it 
 does not directly and unqualifiedly negative the allegations of the 
 bill or complaint. 82 Therefore, where the material allegations of 
 the complaint are positive and direct, and made and verified as 
 within the personal knowledge of the affiant, and if true, entitle 
 the plaintiff to the injunction asked for, and where the material 
 allegations of the answer are made upon information and belief 
 only, the complaint must be deemed uncontroverted, and the in- 
 
 for final decision on bill and answer, 
 may be a sufficient defense at the 
 hearing, but it cannot, in either of 
 those modes, be shown as cause for 
 dissolving the injunction on an inter- 
 locutory motion made for that pur- 
 pose. Simson v. Hart, 14 Johns. 74; 
 Skinner v. White, 17 Johns. 367. The 
 court, on such a motion, gives credit 
 to the answer only so far as it is re- 
 sponsive to the case stated by the 
 bill on which the injunction was 
 granted, and no farther. And the 
 confidence it had reposed in the bill 
 will not be shaken, unless it is fully 
 answered, and its truth is in point of 
 fact materially denied. An answer 
 should always be sworn to by the re- 
 spondent ; for it is only the answer 
 of him who swears to it, although it 
 may purport to be the answer of 
 others. The statement or denial of 
 facts within the defendant's own 
 knowledge should be made distinctly 
 and positively; or at least as much so 
 as his recollection will admit. But if 
 the defendant be charged in a repre- 
 sentative character, such as that of 
 an executor, he may answer on his 
 belief and show such pregnant cir- 
 cumstances as the foundation of that 
 belief as to induce the court to adopt 
 and act upon it." Jones v. Magill, 1 
 Bland Ch. (Md.) 177. 
 
 82. Powell v. Brown, 22 Ga. 275; 
 
 Higbee v. Camden & A. R. Co., 19 ST. 
 J. Eq. 276; Everly v. Rice. 4 N. J. 
 Eq. 553. 
 
 In an injunction suit by one 
 electric light company against 
 another, the bill alleged that de- 
 fendant was about to erect its wire3 
 along the streets and alleys on which 
 complainant's wires were located, and 
 to place them in such close proximity 
 to complainant's wires as to do irre- 
 parable injury to complainant, and 
 greatly endanger the lives of its ser- 
 vants, and it was held that the an- 
 swer, which merely denied that dan- 
 ger would ensue "with a reasonably 
 prudent management of complainant's 
 system of wires," was insufficient to 
 authorize a dissolution of the tem- 
 porary injunction. Consolidated Elec- 
 tric Light Co. v. People's Electric 
 Light & Gas Co., 94 Ala. 373, 10 So. 
 440, the court said : " We do not 
 think the specific allegations in com- 
 plainant's bill, setting forth inter- 
 ference, actual and threatened, with 
 its previously established rights, have 
 been sufficiently answered and nega- 
 tived by the defendant. . . . We 
 therefore hold that the chancellor 
 erred in dissolving the injunction on 
 the denials in the answer." And see 
 Holdrege v. Gwynne, 18 N. J. Eq. 27; 
 Society, etc., v. Low, 17 N. J. Eq. 20. 
 
 491
 
 315 
 
 Dissolution. 
 
 junction should be granted, and if granted, should not be dissolved.* - 
 Denials and allegations, merely on information and belief, are 
 not sufficient to entitle defendant to a dissolution of an injunction ; 
 rhey must be on personal knowledge, or supported by the affidavit 
 of some person having personal knowledge. 84 As a witness would 
 not be allowed, on the trial of a cause, to give evidence of a fact 
 which he knows only from information derived from another, or 
 which he merely believes to be true, so such information ought not 
 to be put into the form of an answer and accepted as controverting 
 the positive allegations of an injunction complaint. 83 The rule 
 that an answer on information and belief is not sufficient is held 
 not to apply where the complaint is on information and belief. 8 * 
 
 § 315. Dissolution on answer. — An injunction will not be dis- 
 solved upon an answer which, while denying the equity of the bill 
 in terms, leaves in doubt how much of the answer is fact and how 
 much opinion. 87 And if the equity of the bill is admitted, the 
 injunction will not be dissolved on new matter set up in avoid- 
 
 83. United States. — Nelson v. Rob- 
 inson, Fed. Cas. No. 10114, 1 Hemp. 
 464. 
 
 Alabama. — Columbus & W. R. Co. 
 v. Witherow. 82 Ala. 190. 3 So. 23. 
 
 California. — Porter v. Jennings, 89 
 Cal. 440, 26 Pac. 965. 
 
 Georgia. — Powell v. Brown. 22 Ga. 
 275; Coffee v. Newson, 8 Ga. 444. 
 
 loica. — Sinnett v. Moles, 38 Iowa, 
 25. 
 
 Maryland. — Kent v. Richards, 3 
 Md. Ch. 392; Doub v. Barnes, 4 Gill 1. 
 New Jersey. — Campbell v. Runyon, 
 42 N. J. Eq. 483, 8 Atl. 298; Irick v. 
 Black. 17 N. J. Eq. 190; Morris Canal 
 & B. Co. v. Jersey City, 11 N. J. Eq. 
 13; Everly v. Rice, 4 N. J. Eq. 553. 
 New York. — Rowe, etc., R. Co. v. 
 Rochester, 46 Hun, 149; Attorney 
 General v. Cohoes Co., 6 Paige. 133, 
 29 Am. Dee. 755; Norton v. Woods, 
 
 5 Paige, 249; Ward v. Van Bokkelen, 
 1 Paige, 100. 
 
 NorthCarolina. — Smith v. Harking, 
 38 N. C. 613, 49 Am. Dec. 83. 
 
 Wiscons-m. — Tainter v. Lucas, 29 
 Wis. 375. 
 
 84. Farmer v. Calvert Pub. Co., 
 1 Flipp, 228, 234; Poor v. Carleton, 
 3 Sumn. 70, 78; United States v. 
 Samperyae, Hemp. 118; Nelson v. 
 Robinson, Hemp. 464; Conover v. 
 Mers, 3 Fish. Pat. Cas. 386; Colum- 
 bus, etc., R. Co. v. Witherow, 82 Ala. 
 190. 
 
 85. Mowry v. Sanborn, 65 N. Y. 
 584. 
 
 86. Hogan v. Branch Bank, 10 
 Ala. 485; Taintor v. Lucas, 29 Wis. 
 375. See Calhoun v. Cozens, 3 Ala. 
 498. 
 
 87. Ladies' Benev. Soe'y v. Soci- 
 ety, 2 Tenn. Ch. 77. 
 
 492
 
 Dissolution. § 31 6 
 
 ance, 88 and will not be dissolved for want of equity on the face of 
 ihe bill, when a case proper for equitable relief is disclosed, though 
 defectively stated. 89 Upon a motion to dissolve an injunction, on 
 l he coming in of an answer, it is neither necessary or proper to 
 decide the case on its merits, especially where the merits turn on 
 grave questions of law arising on conceded facts. 90 If the court 
 can see that there is a substantial question to be decided, it should 
 continue the injunction and preserve the status and property until 
 such question can be regularly disposed of at the trial. 91 The dis- 
 solution of an injunction, like the granting, is largely a matter of 
 discretion, and one of the circumstances which controls the discre- 
 tion is the probability that a dissolution would result in greater 
 injury than its continuance to the hearing. 92 A still stronger cir- 
 cumstance which should militate against the dissolution of an 
 injunction in the exercise of discretion, arises where the effect of 
 the dissolution would be to place the property in controversy be- 
 yond the control of the court in which the action is pending, and 
 would amount to a complete denial of the relief sought by the bill. 93 
 
 § 316. Dissolution on answer though bill waive oath. — Though 
 the bill waives an answer on oath, the defendant may swear to his 
 
 88. Speak v. Ransom, 2 Tenn. Ch. Walk. Ch. (Mich.) 90. By the chan- 
 
 2io. cellor in Owen v. Brien, 2 Cooper 
 
 " 89. Love v. Allison, 2 Tenn. Ch. Ch. (Tenn.) 295, 299: "The bill 
 
 jl^ seeks to have the execution of a writ 
 
 SO. Owen v. Brien, 2 Tenn. Ch. of possession perpetually enjoined. 
 
 295 If, now, I dissolve the injunction, the 
 
 91. Great Western R. Co. v. Birm- defendants execute the writ and the 
 ingham R. Co., 2 Phillips Ch. 597, property passes beyond the control 
 602; Glascott v. Lang, 3 Myl. & C. of the court. If I should eventually 
 455; Shrewsbury v. Shrewsbury R. hold that the complainant is entitled 
 Co., 1 Sim. N. S. 410, 426; Ballard to a perpetual injunction, I can no 
 v. Fuller, 32 Barb. 68. longer give him that relief, for the 
 
 92. Chetwood v. Brittan, 1 Green writ has been executed and a decree 
 Ch. (N. J.) 438; Firmstone v. De for a perpetual injunction would be 
 Camp, 2 C. E. Green Ch. (N. J.) idle words. I cannot dispossess de- 
 309; New v. Bame, 10 Paige (N. fendants for they have acquired pos- 
 Y \ 502. session, not under the orders of this 
 
 93. Hoagland v. Titus, 1 McCart. court, but by a writ from another 
 81 ; Attorney-General v. Oakland, court, and, moreover, there is no such 
 
 493
 
 § 317 Dissolution. 
 
 answer for the purpose of obtaining a dissolution of the injunction, 
 under general chancery rules. 9 * And in such a case, as in others, 
 the injunction will be dissolved upon the coming in of an answer 
 denying the whole equity of the bill, unless the allegations in the bill 
 on which the right to injunction depends, are verified by the affi- 
 davit of a credible and disinterested witness, and whether the bill 
 is sworn to by one or more complainants, is immaterial, as defend- 
 ant's answer is entitled to the same credit as the bill. 95 An answer 
 must be sworn to in order to be available to defendant on a motion 
 to dissolve, though the bill prays for answer without oath. 9S Before 
 the adoption of the amendment to the forty-first rule in equity, it 
 was a rule under the Federal equity practice, that where the 
 answer was under oath and denied all the equities of the bill, the 
 injunction should be dissolved ; but where the oath of the defendant 
 is waived in the bill, his answer, since the amendment, can be used 
 only with the probative force of an affidavit. 97 Where the com- 
 plainant waives an answer on oath and relies upon the affidavits of 
 third persons annexed to the bill to sustain an injunction, in oppo- 
 sition to the defendant's answer on oath, denying the equity of the 
 bill, the defendant, upon an application to dissolve the injunction, 
 may also read the affidavits of third persons in support of his 
 answer. 98 
 
 § 317. Evidence admissible on motion to dissolve. — On the 
 
 hearing to dissolve a temporary injunction, on a motion which 
 was silent concerning the evidence to be offered at the hearing, 
 the admission of oral evidence was not error, after both parties 
 
 prayer in the bill. The court has affidavits annexed to the bill for the 
 
 done irreparable wrong which it can- purpose of contradicting the positive 
 
 not redress." answer of the defendant on oath. 
 
 94. Lytton v. Steward, 2 Cooper Haight v. Case, 4 Paige (N. Y.), 525. 
 Ch. (Tenn.) 586. 96. Walker v. Hill, 21 N. J. Eq. 
 
 95. Manchester v. Dey, 6 Paige 191; Dougrey v. Topping, 4 Paige 
 (N. Y.), 295. If an answer on oath (N. Y.), 94. See preceding section, 
 has not been waived as to one of the 97. United States v. Working- 
 defendants, the complainant upon an men's, etc., Council, 54 Fed. 994. 
 application to dissolve the injunc- 98. Haight v. Case, 4 Paige (N. 
 tion, cannot be permitted to read the Y.), 525. 
 
 494
 
 Dissolution. § 318 
 
 had announced themselves ready for trial." In an action by a tax- 
 payer to enjoin the erection of a bridge by a town, which it had 
 been authorized to build by the county board, plaintiff charged 
 that the whole proceeding was a conspiracy to divert the public 
 money to the private purpose of draining certain swamp lands. 
 It was held that a finding of the court in another action that no 
 such conspiracy existed, though not conclusive on plaintiff, was 
 properly taken into consideration by the court as bearing on the 
 question whether an order dissolving a temporary injunction in 
 the pending action should be reversed. 1 On a rule to dissolve an 
 injunction, it is within the discretion of the court to refer to the 
 merits those issues which require evidence for their trial. 2 In a 
 suit to restrain an action at law by reversioners, for waste in cut- 
 ting timber, a justification of the waste, not alleged or set up in 
 the bill, will be of no avail on a motion to dissolve the injunction. 
 The right to the injunction must appear by the allegations in the 
 bill. 3 Where a motion to dissolve is founded on bill and answer, 
 it is considered to be going too far into the merits to use on the 
 motion testimony taken in the cause. 4 But an injunction granted 
 on notice and after hearing on affidavits on both sides, especially 
 upon the affidavits of the defendants themselves, going to the 
 merits, will not be dissolved on the mere answer of the defend- 
 ants. 5 
 
 § 318. Dissolution of injunction on bill of discovery. — As the 
 only object of an injunction granted upon a mere bill of discovery 
 to aid a defense at law is to obtain the defendant's answer on oath 
 to be used on the trial, it is a matter of course to dissolve the in- 
 junction as soon as the answer of the defendant is perfected, 
 whether he admits or denies the facts alleged in the bill. 6 And 
 
 99. Olson v. City of Topeka, 42 3. Van Syckel v. Emery, 18 N. J. 
 
 Kan. 709, 21 Pac. 219. Eq. 387. 
 
 1 Barker v. Town of Oswegatchie, 4. Brush v. Vandenbergh, 1 Edw. 
 
 62 Hun (N. Y.). 208, 16 N. Y. Ch. (N. Y.) 21. 
 
 Supp 727. 5 - Sinnickson v. Johnson, 3 N. J. 
 
 2. Cottam v. Currie, 42 La. Ann. Eq. 374. 
 
 875 8 So 600. 6. King v. Clark, 3 Paige (N. Y.), 
 
 76. 
 
 495
 
 § 319 Dissolution. 
 
 in such a case the defendant will not be entitled to costs if he 
 admits the facts stated in the bill, and had before refused, without 
 any sufficient excuse, to give the desired information. 7 It is no 
 objection to an application to dissolve an injunction upon a bill 
 of discovery in aid of a defense at law, that the complainant has 
 excepted to the answer for impertinence merely ; to entitle him to 
 retain the injunction until his exceptions have been disposed of 
 by the court, he must show that some injury will result to him 
 from the impertinent matter. 8 The general rule before stated 
 does not apply where the bill is filed for other relief, and the dis- 
 covery is merely incidental. 9 
 
 § 319. Dissolving injunction on ground of adequate legal 
 remedy. — Where a bill for an injunction is dismissed on demurrer, 
 on the ground that the complainant had an adequate remedy at 
 law, a temporary injunction may be dissolved. This rule was 
 applied where a second condemnation proceeding was enjoined 
 on the ground that the same land had been previously condemned, 
 as the objection could have been taken by motion in the second 
 proceedings. 10 The rule was also applied and the injunction dis- 
 
 On a bill for a discovery in aid of Ch. (N. Y.) 503; Weymouth v. 
 
 a defense at law an injunction was Boyer, 1 Ves. Jr. 416. 
 
 granted restraining further proceed- 8. Jewett v. Belden, 11 Paige (N. 
 
 ings in the action at law. The in- Y.), 618. 
 
 junction was dissolved upon defend- 9. Henwood v. Jarvis, 27 N. J. 
 
 ant's answer denying the allegations Eq. 247. 
 
 of the bill but making no discovery. 10. Chicago, R. I. & P. Ry. Co. v. 
 
 Grafton v. Brady, 7 N. J. Eq. 79. Chicago, 143 111. 641, 32 N. E. 178, 
 
 And see Jones v. Sherwood, 6 N. J. per Baker, J. : " We think, however, 
 
 Eq. 210. that the Superior Court properly 
 
 A complainant in a bill sustained the demurrer to the bill, 
 
 charging frand may make every and dissolved the temporary injunc- 
 
 one a party who is a participator in tion, and dismissed the suit. The 
 
 the fraud; he has a right to do this appellant had an adequate remedy 
 
 for the purpose of discovery; and the at law, and the case stated in the 
 
 general rule is that he has a right to bill did not call for the interposition 
 
 hold his injunction until he obtains of a court of equity, or show grounds 
 
 that discovery. Robinson v. Davis, that would give a court of chancery 
 
 11 N. J. Eq. 302. jurisdiction. In the matter of the 
 
 7. Burnett v. Sanders, 4 Johns. petition exhibited by the city in the 
 
 496
 
 Dissolution. 
 
 §320 
 
 solved, where a judgment debtor who had obtained an injunction 
 against the collection of a judgment on the ground of payment, 
 could by proper diligence have made his defense in the action at, 
 law. 11 Where it appears by the bill and answer that the com- 
 plainant has a reasonably adequate remedy at law, the court will 
 exercise its discretion to dissolve the injunction. 12 
 
 § 320. Motion to dissolve for want of jurisdiction. — A motion 
 to dissolve an injunction for want of jurisdiction in the court 
 issuing it is not the proper remedy, as the motion can only be 
 founded on want of equity apparent on the face of the bill. 15 A 
 
 Circuit Court for the condemnation 
 of the strip of land, which is part of 
 the right of way of appellant, it was 
 not competent, under the statute, for 
 appellant to either answer or plead 
 to the petition, and the only question 
 that could there be tried by a jury 
 was the question of damages. But 
 the courts of the State which are 
 authorized to entertain petitions for 
 the exercise of the right of eminent 
 domain are clothed with ample power 
 to prevent any abuses of the right. 
 Smith v. Railroad Co., 105 111. 511; 
 Railroad Co. v. Wiltse, 116 111. 449, 
 fi N. E. 49. In said attempted con- 
 demnation proceeding in the Circuit 
 Court the right to a second condem- 
 nation of the strip of ground for the 
 purposes of a public street could 
 readily have been contested by a pre- 
 liminary motion, and submitted to 
 the decision of the court. No reason 
 is perceived why such motion could 
 not have been entered and supported 
 by affidavits and certified copies of 
 the judgment of condemnation ren- 
 dered in the Superior Court, and of 
 the ordinances of the town of Lake 
 upon which such judgment was 
 based. In Railroad Co. v. Dix, 109 
 111. 237, a motion to dismiss the pe- 
 tition was entered, and affidavits in 
 
 support of such motion filed, and also 
 counter affidavits, and the practice 
 there adopted was approved by this 
 court. See, also, Chicago & N. W. 
 R. Co. v. Chicago & E. R. Co., 112 
 111. 589; Railroad Co. v. Wiltse, 
 supra; Ward v. Railroad Co., 119 
 111. 287, 10 N. E. 365; Illinois Cent. 
 R. Co. v. Chicago, B. & N. R. Co., 
 122 111. 473, 13 N. E. 140; Lake 
 Shore & M. S. R. Co. v. Chicago & 
 W. I. R. Co., 96 111. 125; Peoria, P. 
 & J. R. Co. v. Peoria & S. R. Co., 
 66 111. 174; Illinois Cent. R. Co. v. 
 City of Chicago, 138 111. 453, 28 N. 
 E. 740." 
 
 11. Harding v. Hawkins, 141 111. 
 572, 31 N. E. 307; Morris Canal Co. 
 v. Dennis, 12 N. J. Eq. 249. A pre 
 liminary injunction will be dissolved 
 when all the equities of the bill are 
 denied by answer under oath, or when 
 the suit is to enjoin the breach of a 
 contract which could not be specific- 
 ally enforced, and for breach of 
 which remedy at law is adequate. 
 Coburn v. Cedar Valley Land & Cat- 
 tle Co., 25 Fed. 791. 
 
 12. Van Horn v. Talmage, 8 N. 
 J. Eq. 108. 
 
 13. East & West R. Co. v. East 
 Tennessee, etc., R. Co., 75 Ala. 275. 
 
 497 
 
 32
 
 § 321 Dissolution. 
 
 notice of a motion to dissolve an injunction given at the statutory 
 time, though at a time when the court has no jurisdiction of the 
 case, is sufficient where the court has jurisdiction when the motion 
 is made. 14 An injunction granted in favor of an appellant pending 
 an appeal, may be set aside, even after the term at which it was 
 granted, if the court had not jurisdiction to grant it. 15 
 
 § 321. Dismissing bill on dissolution of injunction. — It may 
 
 be stated generally that where an injunction is dissolved upon the 
 hearing of a motion for its dissolution only, the bill itself should 
 not be dismissed. 16 So if a bill, which seeks other relief besides 
 the injunction, shows any cause of action, it must not be dismissed 
 before the final hearing, though the injunction have been dis- 
 solved, because, though defective in form, or for want of necessary 
 parties, the plaintiff may amend so as to cure the defects before 
 the case comes on for final hearing. 17 And a Code provision that, 
 where an injunction is wholly dissolved, the bill shall be dismissed 
 at the next term, applies to a pure bill of injunction, and not to a 
 case where the bill prays for other relief. Where, therefore, a 
 receiver is appointed according to the prayer of the bill, he may 
 
 14. Younglove v. Steinman, 80 Missouri. — Home Mut. Ins. Co. v. 
 Cal. 375, 22 Pac. 189. Bauman, 14 Mo. 74. 
 
 15. Bullion Beck & Champion Texas. — Love v. Powell, 67 Tex. 
 Min. Co. v. Eureka Hill Min. Co., 5 15, 2 S. W. 456; Texas Land Co. v. 
 Utah, 182, 12 Pac. 660. Turman, 53 Tex. 619; Burnley v. 
 
 16. Arkansas.— Johnston v. Alex- Cook, 13 Tex. 586, 65 Am. Dec. 79. 
 ander, 6 Ark. 302. Virginia.— Muller v. Bayly, 21 
 
 Florida.— Indian River S. Co. v. Gratt. 521; Blow v. Taylor, 4 Hen. 
 
 East Coast Transp. Co., 28 Fla. 387, &. M. 159. 
 
 10 So. 480, 29 Am. St. Rep. 258. West Virginia. — Noyes v. Vickers. 
 
 Illinois.— Brockway v. Rawley, 66 39 W. Va. 30, 19 S. E. 429. 
 
 111. 99; Hummert v. Schwab, 54 111. Where no demurrer or sworn. 
 
 142. answer is filed a bill cannot be dis- 
 
 Indiana. — Gray v. Baldwin, 8 missed on hearing of motion to dis- 
 
 Blackf. 164. solve. Welch v. Sheaffer, 29 Pa. 
 
 Iowa. — Walters v. Fredericks, 11 Super. Ct. 619. 
 
 Iowa, 181. 17. Pulliam v. Winston, 5 Leigh 
 
 Maryland.— Kelly v. Baltimore, 53 (Va.), 324; Hough v. Shreeve, 4 
 
 Md. 134. Munf. (Va.) 490; Singleton V.Lewis. 
 
 Mississippi. — Maury v. Smith, 46 6 Munf. (Va.) 397. 
 Miss. 81. 
 
 498
 
 Dissolution. § 322 
 
 be ordered, at a time subsequent to that at which the injunction 
 previously granted was dissolved, to collect a rent bond taken by 
 him in pursuance of the order of the court. 18 And where the 
 injunction was two-fold, seeking first to enjoin defendant from 
 bringing vexatious actions of trespass; and second, to obtain a 
 decree for complainant awarding to him the land in controversy, it 
 was held that the bill could not be dismissed on the dissolution 
 of the injunction. 19 And where defendant was enjoined from 
 using a certain dock, and the bill also asked that plaintiff be de- 
 creed entitled to the undisturbed possession of that dock, and of 
 certain other docks, and the injunction was dissolved on defend- 
 ant's answer, it was held to be error to dismiss the bill, as it could 
 not be said that no other than the injunctive relief was sought. 20 
 But, if the bill is wholly without merits, it is decided that it 
 should fall with the injunction, 21 and may be dismissed. 22 
 
 § 322. Same subject; in Texas. — When the temporary injunc- 
 tion is dissolved, on the filing of the answer, plaintiff is entitled 
 to a trial on the merits, unless he expressly waives his rights, and 
 it is error to dismiss, although he makes no request for a trial on 
 the merits. 23 There would seem never to have been any doubt in 
 Texas that, in such a case as above put, and where the bill did 
 not show a want of equity, it would be error to dismiss the action 
 
 18. Adkins v. Edwards, 83 Va. East Coast Co., 28 Fla. 387, 10 So. 
 300, 2 S. E. 435. 480. 29 Am. St. Rep. 258. 
 
 19. Hough v. Shreeve, 4 Munf. 21. Reed v. Campbell, 43 N. J. Eq. 
 (Va.) 490. In Texas Land Co. v. 406, 4 Atl. 433; and see Domestic 
 Turman, 53 Tex. 623, the court says: Tel. Co. v. Metropolitan Tel. Co., 39 
 "The petition, independently of the N. J. Eq. 160, 40 N. J. Eq. 287; 
 relief sought by the injunction, con- Duffield v. Whitlock, 26 Wend. (N. 
 tained substantially the allegations Y.) 55. 
 
 in one of trespass to try title. In 22. Gardt v. Brown, 113 111. 475, 
 
 such case, if an injunction has been 55 Am. Rep. 434; Edwards v. Pope, 
 
 obtained, and is on motion dissolved, 4 111. 465; Merriman v. Norman, 9 
 
 it is error thereupon to dismiss the Heisk. (Tenn.) 269; Mayse v. Biggs, 
 
 petition, but it should be continued 3 Head (Tenn.), 36. 
 over for hearing on the merits." 23. Love v. Powell, 67 Tex. 15, 2 
 
 20. Indian River Steamboat Co. v. S. W. 456. 
 
 499
 
 S32; 
 
 Dissolution. 
 
 where the plaintiff asked for a trial on the merits. 24 But, even if 
 he did not ask for a trial, the prevailing doctrine in Texas has 
 been that it was error to dismiss the suit on dissolving the in- 
 junction; 25 though the contrary doctrine that it was not error to 
 dismiss where a trial was not asked for, has had the support of 
 quite a line of decisions. 26 When an injunction is dissolved be- 
 cause of a want of equity in the injunction petition, and the in- 
 junction is the sole object of the suit, the case should be dismissed 
 if the plaintiff declines to amend. 27 
 
 § 323. Dissolution where several defendants. — The general 
 rule is that an injunction against several defendants jointly impli- 
 cated in the same transaction will not be dissolved until all the 
 defendants have answered denying the equities of the bill; 28 the 
 rule being based on the necessity for testing the personal knowl- 
 edge of all the defendants as a protection to the rights of the 
 
 24. Washington County v. Schulz, 
 63 Tex. 32, per West, J.: "The 
 judgment recites that the case was 
 heard only on appellee's motion to 
 dissolve the injunction; and on that 
 motion being sustained, and before 
 any further action had been had, that 
 the appellant at once demanded a 
 hearing of the cause on the merits. 
 If the petition contained averments 
 sufficient, if established by proof on 
 the final hearing, to entitle appellant 
 to the relief sought, or if it could 
 have been amended so as to state a 
 good cause of action, it should have 
 been retained, when he asked that it 
 be done to give the appellant an op- 
 portunity of proving the averments 
 to be true, and thus obtain the relief. 
 The following cases sustain these 
 views: Hale v. McComas, 59 Tex. 
 484; Pullen v. Baker, 41 Tex. 420; 
 Gaskins v. Peebles, 44 Tex. 390, 
 Sims v. Redding, 20 Tex. 387; Floyd 
 v. Turner, 23 Tex. 292; Lively v. 
 Bristow, 12 Tex. 60; Fulgham v. 
 
 Chevallier, 10 Tex. 518; Baldridge 
 v. Cook, 27 Tex. 565; Edrington v. 
 Allsbrooks, 21 Tex. 188; Eccles v. 
 Daniels, 16 Tex. 137." 
 
 25. Pullen v. Baker, 41 Tex. 419; 
 Fulgham v. Chevallier, 10 Tex. 518; 
 Burnley v. Cook, 13 Tex. 586; Dear- 
 born v. Phillips, 21 Tex. 449; Texas 
 Land Co. v. Turman, 53 Tex. 623. 
 
 26. Gaskins v. Peebles, 44 Tex. 
 390; Sims v. Redding, 20 Tex. 386; 
 Lively v. Bristow, 12 Tex. 60; Clegg 
 v. Darragh, 63 Tex. 357; Baldridge 
 v. Cook, 27 Tex. 565. These five cases 
 are overruled in Love v. Powell, 67 
 Tex. 15, 2 S. W. 456. 
 
 27. Love v. Powell, 67 Tex. 15, 16, 
 2 S. W. 456; Hale v. McComas, 59 
 Tex. 484; Corsicana v. White, 57 
 Tex. 382; Pryor v. Emerson, 22 Tex. 
 162; Cook v. De La Garza, 13 Tex. 
 431; Gibson v. Moore, 22 Tex. 611. 
 
 28. United States. — Robinson v. 
 Cathcart, Fed. Cas. No. 11946, 2 
 Cranch C. C. 590. 
 
 500
 
 Dissolution. 
 
 323 
 
 complainant. 29 So an injunction will not be dissolved on an 
 answer of one defendant which denies all the equities of the bill, 
 if the answers of the other defendants admit them. 30 And an 
 injunction granted upon an allegation of the fraudulent conceal- 
 ment of a written agreement between the defendant and another 
 defendant, in an action at law, will not be dissolved upon the 
 answer of one defendant and the affidavit of the other, without the 
 answer of both and the production of the agreement. 31 And gen- 
 erally one of several defendants, who has answered, will not be 
 heard to move for a dissolution, while other defendants have not. 
 answered, unless he has ground to impute to plaintiff unreasonable 
 neglect in the prosecution of the injunction suit. 32 Where a bill 
 
 Arkansas. — Fowler v. Williams, 20 
 Ark. 641; Johnson v. Alexander, 6 
 Ark. 302. 
 
 Illinois. — Reynolds v. Mitchell, 1 
 111. 135. 
 
 Maryland. — Jones v. Magill, 1 
 Bland, 177. See Heck v. Vollmer, 29 
 Md. 507. 
 
 New Jersey. — Wisham v. Lippin- 
 cott, 9 N. J. Eq. 353; Smith v. 
 Loomis, 5 N. J. Eq. 60; Price v. 
 Clevenger, 3 N. J. Eq. 207. 
 
 New York. — Noble v. Wilson, 1 
 Paige, 164. See McVickar v. Wol- 
 cott, 4 Johns. 510. 
 
 North Carolina. — Councill v. Wal- 
 ton, 39 N. C. 15-5. 
 
 Virginia. — Baltimore & O. R. Co. 
 v. Wheeling, 13 Grat. 40. 
 
 " In such cases the exceptions to 
 the answer of one of the defendants 
 submitted to is a good answer to a 
 motion to dissolve the injunction, if 
 those exceptions go to the merits of 
 the case on which the injunction 
 rests." Noble v. Wilson, 1 Paige (N. 
 Y.), 164. Per the Chancellor. 
 
 29. Douglass v. County Commis- 
 sioners, Baker County, 23 Fla. 419, 
 431, 2 So. 776; Coleman v. Gage, 
 Clarke Ch. (N. Y.) 295. See also 
 
 Jewett v. Bowman, 27 N. J. Eq. 171 ; 
 Scull v. Reeves, 3 N. J. Eq. 85; 
 Wisham v. Lippincott, 9 N. J. Eq. 
 353. 
 
 .30. Zabriskie v. Vreeland, 1 Beas. 
 (N. J.) 179. See Hooker v. Austin, 
 41 Miss. 717. 
 
 31. Prickett v. Tuller, 29 N. J. 
 Eq. 154. 
 
 32. Jones v. Magill, 1 Bland, Ch. 
 (Md.) 177, 200, per Bland, Ch.: 
 " These defendants who now ask for 
 a dissolution of this injunction have 
 not yet, by a rule for further proceed- 
 ings required the plaintiff to prose 
 cute her suit without delay, and 
 consequently they cannot justly com 
 plain of the injunction being con- 
 tinued until the filing of the answer 
 of the defendant Gittings, which it 
 is evident may bring into the case 
 an acknowledgment of facts that 
 may go far to sustain if not entirely 
 to support the equity upon which the 
 injunction rests. Hence, as there is 
 now no ground to impute to the 
 plaintiff .any unreasonable neglect 
 in the prosecution of her suit; and 
 the answer of a defendant under 
 whom this creditor, Magill, claims, 
 who, it is admitted, can speak from 
 
 501
 
 §324 
 
 Dissolution. 
 
 makes a case for an injunction its material allegations must be 
 denied by answer before the injunction will be dissolved. If the 
 answering defendants are unable from want of knowledge posi- 
 tively to deny the material allegations of the bill, the injunction 
 must be retained, and the fact that the only defendant who can 
 answer such allegations is absent from the State, is no ground of 
 exception to the rule. 33 And on a motion to dissolve a defendant 
 cannot object that another person not a party to the suit has been 
 enjoined. 34 
 
 § 324. Same subject; qualifications and exceptions. — A quali- 
 fication of the general rule is that the plaintiff must have taken the 
 requisite steps to compel an answer from all the defendants. 35 So, 
 also, where the defendants on whom the real gravamen rests have 
 fully answered, they may apply to have the injunction dissolved 
 as to them, though a co-defendant has not put in his answer; 36 
 
 Ms own knowledge of some of the 
 material facts charged in the bill, 
 lias not yet been put in; the hearing 
 of the motion to dissolve cannot be 
 taken up until his answer has been 
 brought in, or until it may be in- 
 ferred from the plaintiff's laches in 
 not endeavoring to have it brought 
 in that it would contain nothing 
 likely to sustain her case; or until 
 such implied notice of the bill has 
 been given to the non-responding de- 
 fendant, if he be not resident within 
 the State, as will enable the court to 
 proceed without his answer." Paul 
 v. Nixon, 1 Bland. Ch. (Md.) 200, 
 note (r). 
 
 Where the complainants have 
 taken the necessary steps to ex- 
 pedite their cause, and procure 
 the answer of all the defendants, an 
 injunction will not be dissolved until 
 the defendant upon whom the grava- 
 men of the charge is made, has an- 
 Bwered, and if all the defendants are 
 implicated in the charge, not until 
 
 all have answered. Robinson v. Da- 
 vis, 11 N. J. Eq. 302. 
 
 33. Lines v. Spear, 8 N. J. Eq. 154, 
 and see Council 1 v. Walton, 4 Ired. 
 Eq. (N. C.) 155. 
 
 34. Tradesman's Bank v. Merritt, 
 1 Paige (N. Y.), 302. 
 
 On a motion to dissolve an in- 
 junction, the separate answer of 
 a co-defendant, not included in the 
 injunction, cannot be regarded. Van 
 Syckel v. Emery, 18 N. J. Eq. 387. 
 
 35. See Stoutenburg v. Peck, 4 N. 
 J. Eq. 446 ; Ward v. Van Bokkelen, 1 
 Paige (N. Y.). 100; Shonk v. 
 Knight, 12 W. Va. 667. 
 
 36. Arkansas. — Fowler v. Wil- 
 liams, 20 Ark. 641. 
 
 Maryland.— Heck v. Vollncr, 29 
 Md. 507. 
 
 Missouri. — See Gast Bank Note & 
 L. Co. v. Fennimore Ass'n, 79 Mo. 
 App. 612. 
 
 New Jersey. — Adams v. Hudson 
 County Bank, 10 N. J. Eq. 535, 64 
 Am. Dec. 469; Price v. Clevenger, 3 
 N. J. Eq. 207. 
 
 .-,02
 
 Dissolution. § 324 
 
 especially if he is a non-resident and cannot be compelled to 
 answer. 37 Thus where four of the members of a board of county 
 commissioners are defendants to a suit in chancery, and two of 
 them, having answered, move to dissolve the injunction, and the 
 motion is heard without objection from the complainants as to the 
 absence of an answer from the others, and the answering defend- 
 ants appear to have had the same opportunities as the others for 
 knowledge and understanding of the transactions, and show clear 
 grounds for the dissolution of the injunction, it is not error to 
 dissolve the injunction. 38 And it is no valid objection to an appli- 
 cation to dissolve an injunction upon the bill and answer, that the 
 personal representatives of a deceased co-defendant, who was 
 jointly implicated in the fraud charged in the bill, have not yet 
 put in their answer, unless they are charged with knowledge of 
 the fraud of their testator or intestate. 39 Where some of the de- 
 fendants had answered and complainant had neglected for nine 
 months to obtain answers from the others, the injunction was dis- 
 solved on motion of those who had answered. 40 If some of the 
 defendants have no knowledge of the material allegations of the 
 bill, and all of the matters as to which they have knowledge are 
 admitted in the answers put in by other defendants, it is obvious 
 that the motion for dissolution may properly be decided without 
 their answers. 41 
 
 New York. — Depeyster v. Graves, sisted, however, that the injunction 
 
 2 Johns. Ch. (N. Y.) 148; Mallett was prematurely dissolved, because 
 
 v. The Weybosset Bank, 1 Barb. (N. all the defendants had not filed an- 
 
 Y.) 217. swers. But a plaintiff can in no case 
 
 ,37. Mallett v. Weybosset Bank, 1 complain that an injunction has been 
 
 Barb. (N. Y.) 217; Depeyster v. dissolved before all the defendants 
 
 Graves, 2 Johns. Ch. (N. Y.) 148. have answered, unless he has used 
 
 38. Douglass v. County of Baker, due diligence to expedite his cause, 
 23 Fla. 419, 2 So. 776. See, also, and procure the answers of all the 
 Walsh v. Smyth, 3 Bland. Ch. defendants. See Mallet v. Weybosset 
 (Md.) 9. Bank, 1 Barb. 219; Depeyster v. 
 
 39. Wakeman v. Gillespy, 5 Paige Graves, 2 Johns. Ch. 148; Stouten- 
 (N. Y.), 112. burgh v. Peck, 3 Green Ch. 446; See- 
 
 40. Depeyster v. Graves, 2 Johns. bor v. Hess, 5 Paige, 85. In this case 
 Ch. (N. Y.) 148. the plaintiff used no sort of dili- 
 
 41. Shonk v. Knight, 12 W. Va. gence. He never issued a summons 
 €67, 684, per Green, J. : " It is in- even against any of the defendants 
 
 503
 
 §325 
 
 Dissolution. 
 
 § 325. Same subject. — Where those not answering are merely 
 formal parties, or are infants or non-residents, whose answers can- 
 not be material in regard to the facts on which the injunction is 
 based, their answers will not be required as a prerequisite to hear- 
 ing the motion to dissolve. 42 In England, the general rule is that 
 
 except against Laidley and Knight, 
 trustees, and Brown and Cowen, trus- 
 tees. It is obvious from the bill and 
 answers that the trustees, Laidley 
 and Knight, have no knowledge of 
 the material allegations of the bill in 
 reference to the mistake or fraud 
 in setting forth the boundaries of 
 the land in the deeds, and that all 
 the allegations in the bill that they 
 have any knowledge about are fully 
 admitted in the answers that are 
 filed, so that no just complaint can 
 be made of the court's acting on the 
 motion to dissolve before they filed 
 the answers. It is only necessary 
 that those on whom rests the grava- 
 men of the charge, should answer. 
 See cases just cited, and Vliet v. 
 Lowmason, 1 Green Ch. 404. The 
 only defendants who have any knowl- 
 edge about the material and contro- 
 verted facts in the case who have 
 not answered, are Echols, Bell, Cat- 
 lett and Cowen. No summons ever 
 issued against Echols, Bell or Cat- 
 lett, and when the summons was is- 
 sued against Cowen, it was returned 
 by the sheriff of Kanawha county, 
 ' not found and no inhabitant of 
 Kanawha county.' And the plaintiff 
 never issued another summons 
 against Cowen, or made any efforts, 
 so far as the record shows, to obtain 
 his answer, or the answer of Echols, 
 Bell or Catlett. The statements, too, 
 contained in the answers filed, jus- 
 tify the conclusion that had the 
 plaintiff desired, he could have pro- 
 cured those answers. The court, 
 
 therefore, properly acted on the mo- 
 tion to dissolve, without awaiting 
 the filing of those answers." 
 
 42. Heck v. Vollmer, 29 Md. 507; 
 Shricker v. Field, 9 Iowa, 366; Hig 
 gins v. Woodward, Hopk. Ch. (N. 
 Y.) 342. And see Gregory v. Still 
 well, 6 N. J. Eq. 51; Adams v. Hud 
 son Co. Bank, 10 N. J. Eq. 535. In 
 Jones v. Magill, 1 Bland Ch. (Md.), 
 177, 190, per Bland, Ch.: "It is an 
 ancient and well-settled rule, that 
 where there are several defendants to 
 the bill, no motion to dissolve the in- 
 junction can be heard until all of 
 them have answered. Eden, Inj. 66; 
 Wright v. Nutt, 2 Dick. 691. But 
 to this rule there are exceptions. As 
 where the trustee and cestui que 
 trust were both made defendants, and 
 the trustee would not answer, a mo- 
 tion to dissolve was permitted to be 
 made on the answer of the cestui que 
 trust alone; and, indeed, where there 
 appeared to have been fraud and col- 
 lusion, the cestui que trust, though 
 not a party to the suit, was allowed 
 to move for a dissolution of the in- 
 junction. Nugent v. Smyth, Mosely. 
 354; and the injunction may be dis- 
 solved as against some of the de- 
 fendants only, or it may be dis- 
 solved on the answer of an insolvent 
 who has no interest in the matter, 
 upon his speaking to facts peculiarly 
 within his own knowledge before his 
 insolvency. Joseph v. Doubleday, 1 
 Ves. & B. 497; and so where it ap- 
 pears, from the nature of the case, 
 that the responding defendant is the 
 
 iO-i
 
 Dissolution. § 326 
 
 an injunction of proceedings at law, which has been granted against 
 several defendants, is not to be dissolved till all have answered ; 
 though where some are absentees it is deemed a hardship that the 
 others who have answered should be helpless to resist the injunc- 
 tion; 43 but there are exceptions to the general rule. 44 An order 
 nisi is necessary on behalf of the defendant moving. 45 
 
 § 326. Same subject. — Where one of the defendants is an 
 absentee, and it is impossible to procure his answer, because he is 
 beyond the jurisdiction of the court, as where a party defendant 
 is a foreign corporation, another defendant who has answered and 
 denied all the equities alleged in the bill, may be allowed to move 
 thereon for a dissolution. 46 And where there are only two defend- 
 ants, one of whom is a mere stakeholder of the money in contro- 
 versy, the right to which is litigated between his co-defendant and 
 the plaintiff, the injunction may be dissolved on the answer of the 
 contesting defendant, wherein he denies, from his own knowledge, 
 all the equities of the bill, though a decree, pro confesso, has been 
 taken against the other defendant. 47 And the settled Alabama rule 
 is that an injunction may be dissolved upon the answer of those 
 defendants within whose knowledge the facts charged in the bill 
 must be, if they exist at all, though there are other defendants who 
 have not answered. 48 
 
 § 326a. Where additional parties are brought in. — The ques- 
 tion being, when a motion to dissolve an injunction is made, 
 whether at the time such motion is made, the injunction ought, 
 upon all the facts before the court, to be continued, it is decided 
 
 only one who can speak from his own 45. Nay lor v. Middleton, 2 Mad. 
 
 knowledge in relation to the facts on 131. 
 
 which the injunction rests. Boheme 46. Baltimore, etc., R. Co. v. 
 
 v. Porter, Barn. Ch. 352; as where Wheeling, 13 Gratt. (Va.) 40; Lewis 
 
 the defendants who have not an- v. Smith, 7 Beav. 470. 
 
 swered are infants." 47. Colton v. Price, 50 Ala. 424. 
 
 43. Lewis v. Smith, 7 Beav. 470. See, also, Gregory v. Stillwell, 6 N. 
 
 44. Joseph v. Doubleday, 1 Ves. J. Eq. 51. 
 
 & B. 497 ; Todd v. Dismor, 2 S. & St. 48. Dunlap v. Clements, 7 Ala. 
 
 477; Imperial Gas Light Co. v. 539; Long v. Brown, 4 Ala. 622. 
 Clarke, Younge, 580. 
 
 505
 
 §§ 327, 328 Dissolution. 
 
 that, if after the granting of an injunction, an amendment is made, 
 adding additional parties, a subsequent motion to dissolve should 
 not be determined by the fact whether it was properly granted to 
 the original complainant but whether, upon the real merits of the 
 case, it would have been granted if the after-named complainants 
 had been originally named and whether under all the facts of the 
 case at the time the motion is made their interests require its 
 continuance. 49 In a case in Texas it is decided in this connection 
 that an intervener in an injunction suit, cannot successfully op- 
 pose the dissolution of the injunction, unless he shall have made 
 out a case which entitled him to one. 50 
 
 § 327. Dissolution of common and special injunctions. — In 
 
 the case of a common injunction, by which proceedings at law 
 are restrained, the rule is, or formerly was, to dissolve it when 
 the allegations in the complaint are fully denied by the answer." 
 But special injunctions, which are in aid of a pending suit, and 
 whose object is to secure to the plaintiff the benefit of the action, 
 will not be dissolved when it appears to the court, by affidavits or 
 otherwise, that there is probable ground for the primary equity, 
 and a reasonable apprehension of irreparable loss. 52 
 
 § 328. Where enforcement of judgment stayed. — Ordinarily 
 an injunction to stay proceedings in an action at law should 
 be dissolved on the coming in of an answer which fully denies all 
 the equities of the bill. 53 And a bill for an injunction to restrain 
 
 49. Warren v. Pim, 65 N. J. Eq. be read by complainant, in opposi- 
 36, 55 Atl. 66. tion to a motion made on the coming 
 
 50. Taylor v. Gilleau, 23 Tex. 508. in of the answer, to dissolve an in- 
 
 51. Perry v. Michaux, 79 N. C. 94; junction restraining one copartner 
 Jones v. McKenzie, 6 Jones Eq. (N. from using the partnership name, 
 C.) 203; Mims v. McLean, 6 Jones etc., or in support of the allegations 
 Eq. (N. C.) 200; Dyche v. Patton, 8 of the bill. The injunction was dis- 
 Ired. Eq. (N. C.) 295. solved. 
 
 52. Blackwell Tobacco Co. v. Mc- 53. Dexter v. Ohlander, 95 Ala. 
 Elwee, 94 N. C. 425; Jarman v. 467, 10 So. 527; Wooden v. Wooden, 
 Saunders, 64 N. C. 367. In Eastburn 3 N. J. Eq. 429. Complainant agreed, 
 v. Kirk, 1 Johns. Ch. (N. Y.) 444, in payment for a piano bought of 
 Kent, Ch., ruled that affidavits could defendant through an agent, to give 
 
 506 •
 
 Dissolution. § 329 
 
 the collection of a judgment will be dismissed and the injunction 
 dissolved, on its appearing that there was a defense to the action 
 in which the judgment was obtained, which the defendant might 
 have ascertained by inquiry and proper diligence. 54 And an in- 
 junction, restraining several actions at law on the sole ground 
 that they involve the same matters of fact and law, without any 
 other community of interest between the complainants, should be 
 dissolved. Thus, where several persons had property destroyed by 
 sparks from the same railroad engine, and sued separately for 
 damages, an injunction restraining the separate actions was dis- 
 solved on appeal. 55 Upon a motion to dissolve an injunction be- 
 fore an answer, all the allegations of the bill must be taken as true, 
 for, by declining to answer, the defendant is regarded as admit- 
 ting the allegations of the bill. Therefore it is error to dissolve 
 the injunction of a judgment alleged to have been discharged in 
 bankruptcy, if the defendant has not denied such allegation. 56 In 
 Louisiana, where execution of a judgment for a sum of money 
 has been enjoined, the surety in the injunction bond, being ipso 
 facto co-plaintiff, is not entitled to notice of the dissolution before 
 issuance of the execution. 57 
 
 § 329. Same subject. — Where an injunction has been issued 
 against the execution of a judgment, or other proceeding at law, 
 and the plaintiff's right to relief rests on an accounting, or matters 
 of trust of purely equitable jurisdiction, it should not be dissolved 
 
 his notes, payable monthly without to take further proof was made. 
 
 interest, and signed several notes Held, on defendant's motion, it was 
 
 without examining them, the agent not erroneous to dissolve the injunc- 
 
 assuring him they were in keeping tion as improvidently issued. Davis 
 
 with the contract. The first note was v. Hart, 66 Miss. 642, 6 So. 318. 
 
 presented, and payment refused, be- 54. Harding v. Hawkins, 141 111. 
 
 cause it bore interest, and stipulated 672, 31 N. E. 307. 
 
 for attorney's fees if suit was brought 55. Tribbette v. Illinois Central R. 
 
 thereon, and two others of the notes Co., 70 Miss. 182, 12 So. 32. 
 
 fell due and were put in suit. In a 56. Peatross v. McLaughlin, 6 
 
 suit to enjoin these suits defendant Gratt. (Va.) 64. 
 
 in his answer denied the allegations, 57. Friedman v. Adler, 36 La. 
 
 and some proof was taken by both Ann. 384. 
 
 parties, but no application for time 
 
 507
 
 § 329 Dissolution. 
 
 until the hearing. 58 Thus, where the collection of a judgment 
 has been enjoined, and the answer of defendant shows that there 
 is a sum in his hands, which he has agreed to apply as a credit on 
 such judgment, and it is uncertain what is the amount which he 
 ought, under the agreement, to credit on such judgment, the court 
 ought not to dissolve the injunction until it has ascertained the 
 amount of the credit which should be so given. 59 And, where an 
 action at law was enjoined on a bill for discovery and relief, and 
 the defendant in the injunction suit moved to dissolve, on the 
 ground that the discovery had been obtained, and the equity of the 
 bill fully answered, the motion was refused because the bill prayed 
 for relief as well as discovery, and in regard to a matter which 
 peculiarly belonged to equity jurisdiction. 60 Though an injunction 
 to restrain an action at law should generally be dissolved, where 
 the defendant could have made his defense therein, yet it is error 
 to refuse to dissolve an injunction of a trespass suit, where it is 
 adjudged that the defendant had title to the property. 61 Under a 
 Code provision in Alabama it has been decided that an interlocu- 
 tory decree, dissolving an injunction to stay proceedings on a 
 judgment at law, should order defendant to give a refunding bond, 
 as a condition precedent to the enforcement of the judgment, in 
 case it should afterwards be perpetually enjoined. 62 Upon a 
 motion to dissolve an injunction against a judgment at law, it is 
 not proper to decree that the injunction be made perpetual, even 
 as to a part of the judgment admitted by the answer to have been 
 paid, but the proper course is to continue the injunction, as to such 
 part, until the hearing, and dissolve it as to the residue, if that 
 
 58. Harding v. Hawkins, 141 111. 652, 24 L. Ed. 216." 
 
 572, 31 N. E. 307, per Shope, J.: "A 59. Heatherly v. Farmers' Bank, 
 
 judgment at law may be enjoined 31 W. Va. 70, 5 S. E. 754. See, also, 
 
 when the defense is an equitable one, Quackenbush v. Van Riper, Saxt. {N. 
 
 and not available in an action at law. J.) 476; MeVickar v. Wolcott, 4 
 
 If the matter relied upon by the com- Johns. (N. Y.) 533. 
 
 plainant could not have been re- 60. Brown v. Edsall, 9 N. J. Eq. 
 
 ceived as a defense in the action at 256. 
 
 law, equity may relieve, notwith- 61. Union Mut. Life Ins. Co. v. 
 
 standing an ineffectual attempt to Slee (111.), 13 N. E. 222. 
 
 defend at law. Vennum v. Davis, 35 62. Dexter v. Ohlander, 95 Ala. 
 
 111. 568; Crim v. Handley, 94 U. S. 467, 10 So. 527. 
 
 508
 
 Dissolution. §§ 330, 330a 
 
 3eem proper on the answer. 63 An injunction against the collection 
 of a judgment, on the ground that it is excessive, will be dissolved 
 on the defendant's allowing a credit for the excess. 64 
 
 § 330. Dissolution by implication ; by sustaining demurrer. — 
 
 The allowance of defendant's plea, which either constitutes a de- 
 fense to the complainant's whole case, or deprives him of all power 
 to further prosecute his action, does not, ipso facto, dissolve the 
 injunction, but in such case, a dissolution will generally be 
 granted, as of course, on defendant's motion. 60 The dismissing out 
 of a case all charged in the bill upon which the injunction issued, 
 by sustaining a demurrer thereto, is, in substance, a dissolution of 
 the injunction without a formal order of such dissolution. Thus, 
 where demurrers are sustained to that portion of a bill, on the 
 strength of which a temporary injunction has been issued, and the 
 lecord recites that " the sufficiency of said causes of demurrer hav- 
 ing been passed upon, when the order dissolving the injunction 
 was made and entered," the injunction will be considered dis- 
 solved, though no formal order of dissolution appears of record. 66 
 
 § 330a. Same subject ; injunction in force until a certain time. 
 — A temporary injunction which is limited in its duration to a 
 day certain when there shall be a hearing to determine why an 
 injunction should not be granted, expires of its own limitation 
 when the hearing is had and an injunction refused. 67 So in an 
 early case in Virginia it is decided that where an injunction is 
 awarded " until the coming in of the answer " it is at an end when 
 the answer comes in, so that it is unnecessary for the defendant 
 
 63. McReynolds v. Harshaw, 2 (2 Dick.) 536; Ferrand v. Homer, 4 
 Tred. Eq. (N. C.) 29. Myl. & C. 143. 
 
 64. Rodahan v. Driver, 23 Ga. 352. 66. Thomsen v. McCormick. 136 
 See Welch v. Parran, 2 Gill (Md.). 111. 135, 26 N. E. 373. See, also, New 
 320. Nat. Turnpike Co. v. Dulaney, 86 Ky. 
 
 65. Fulton v. Greacen, 43 N. J. 516, 6 S. W. 590. See Folsom v. Bal- 
 Eq. 443, 15 Atl. 827 ; Phillips v. lard, 70 Fed. 12, 36 U. S. App. 75, 16 
 Langhorn, 46 N. J. Eq. (1 Dick.) C. C. A. 593. 
 
 148; Mason v. Murray, 47 N. J. Eq. 67. Powell v. Parker, 38 Ga. 644. 
 
 509
 
 § 330b 
 
 Dissolution. 
 
 to move to dissolve. 68 But in a later case in the same State it was 
 held that the injunction was not dissolved by the coming in of the 
 answer but was a subsisting injunction until dissolved by the sub- 
 sequent order of the chancellor. 69 
 
 § 330b. Same subject ; dismissal of bill ; effect of decree — A 
 decree dismissing the bill for an injunction, operates as a dissolu- 
 tion of an interlocutory injunction, unless it is continued in force 
 in whole or in part, by some order of the court. 70 So where the 
 injunction is ancillary to the principal action and such action fails 
 by a verdict for the defendants, the injunction falls with it and 
 should be dissolved. 72 So in a case in New York it is decided that 
 
 68. Beal y. Gibson, 4 Hen. & M. 
 (Va.) 481, holding that in such a 
 case the plaintiff may move to rein- 
 state. 
 
 69. Turner v. Scott, 5 Rand. (Va.) 
 332. 
 
 70. Bogacki v. Welch, 94 Ala. 429, 
 10 So. 330. 
 
 United States. — Coleman v. Hud- 
 son River Bridge Co., Fed. Cas. No. 
 2983, 5 Blatchf. 56. 
 
 See Prieth v. Campbell Printing P. 
 & M. Co., 80 Fed. 539, 39 U. S. App. 
 591, 25 C. C. A. 624. 
 
 California. — Dowling v. Polack, 18 
 Cal. 625. 
 
 Georgia. — Old Hickory Distilling 
 Co. v. Bleyer, 74 Ga. 201. 
 
 Illinois. — Thomsen v. McCormick, 
 136 111. 135, 26 N. E. 373. 
 
 Kentucky. — Crook's Adm'r v. Tur- 
 pin, 10 B. Mon. 243. 
 
 Maryland. — Musgrave v. Staylor, 
 36 Md. 123. 
 
 Mississippi. — Yale v. Baum, 70 
 Miss. 225, 11 So. 879. 
 
 New York. — Gardner v. Gardner, 87 
 N. Y. 14; Crockett v. Smith, 14 Abb. 
 Prac. 62 ; Hope v. Acker, 7 Abb. Prac. 
 308; Palmer v. Foley, 2 Abb. N. C. 
 191; Hoyt v. Carter, 7 How. Prac. 
 140. 
 
 Ohio. — Krug v. Bishop, 11 Wkly. 
 Law Bull. 295. 
 
 West Virginia. — Atkinson v. Beck- 
 ett, 36 W. Va. 438, 15 S. E. 179. 
 
 See Hostler v. Marlowe, 44 W. Va. 
 707, 30 S. E. 146. 
 
 Compare Collier v. Bank of New 
 bern, 21 N. C. 328, holding that the 
 abatement of a suit in equity for an 
 injunction is not of itself a dissolu- 
 tion of the injunction but that it re- 
 quires an order of court for that pur- 
 pose, which odrer it is competent for 
 the court to make, after an abate- 
 ment by death. 
 
 Upon the entry of the final 
 decree in a case a temporary injunc- 
 tion ceases to be of any force. 
 Sweeney v. Hanley, 126 Fed. 97, 61 
 C. C. A. 153; Gardner v. Gardner, 87 
 N. Y. 14. 
 
 An injunction will be dis- 
 solved in case of a dismissal of tbe 
 suit as to the defendant in the ac- 
 tion against whom the injunction was 
 issued. Lyons v. Green, 68 Ark. 205, 
 56 S. W. 1075; Atkinson v. Beckett, 
 36 W. Va. 438, 15 S. E. 179. 
 
 72. Brennan v. Gaston, 17 Cal. 
 372; King v. Williamson, 80 Fed. 
 170. 
 
 510
 
 Dissolution. §§ 330c, 331 
 
 a temporary injunction granted, not as a principal object, but as 
 an incident to the action, which by its terms is to continue in 
 force until further order of the court, is abrogated by a final judg- 
 ment in the action, in favor of plaintiff, which makes no pro- 
 vision for the continuance of the injunction, and does not grant 
 any further or other injunction. 73 The fact that the defendant has 
 appealed from a final judgment does not alter the effect of such 
 judgment in respect to the temporary injunction. 74 
 
 § 330c. Same subject continued — A decree for the payment of 
 money which has been enjoined in the hands of a party to the suit 
 is in effect a dissolution of an injunction. 75 So in the case of a 
 bill for an injunction to restrain a party from disposing of goods, 
 during the pendency of a suit at law, when the suit at law is dis- 
 missed, it is held that the injunction must follow its steps as a 
 necessary consequence. 76 And the injunction is dissolved by neces- 
 sary implication, where, after the enforcement of a deed of trust 
 has been restrained, and the correction of the debt secured en- 
 joined, by the court below, the appellate court, reversing on that 
 point, decrees the debt secured to be valid and subsisting, and 
 remands the cause with directions to collect under the deed of 
 trust, and apply proceeds in a given order ; and an order of disso- 
 lution before further proceedings by the court below is unneces- 
 sary. 77 Again, where on an appeal the decree granting the in- 
 junction is reversed on the grounds upon which it was granted, the 
 injunction is thereby dissolved though the court does not dismiss 
 the bill but remands the cause. 78 
 
 § 331. Dissolution of injunctions affecting realty. — Where, in 
 a suit for specific performance of a verbal contract of sale of land, 
 
 73. Gardner v. Gardner, 87 N. Y. formal dissolution of the injunction 
 14. was necessary. 
 
 74. Gardner v. Gardner, 87 N. Y. 76. Phelps v. Foster, 18 111. 309. 
 14. 77. Atkinson v. Beckett, 36 W. 
 
 75. Crook's Exr. v. Turpin, 10 B. Va. 438, 15 S. E. 179. 
 
 Mon. (Ky.) 243, holding that no 78. Gage v. Parker, 178 111. 455, 
 
 53 N. E. 317. 
 
 511
 
 1 332 Dissolution. 
 
 and to enjoin actions arising out of a judgment against complain- 
 ant in ejectment, for the same land, complainant based his rights 
 on possession granted under the verbal contract, and on the pay- 
 ment of the price, which he alleged was paid to defendant, and 
 receipted for, it was held that a preliminary injunction was prop- 
 erly dissolved, on the filing of an answer denying that defendant 
 executed the receipt, and denying the payment of the price. 7 ' 
 But, where the prosecution of an action in ejectment is enjoined, 
 on the ground of fraud in defendant's conveyance, the injunction 
 will not be dissolved, unless the defendant in his answer fully meets 
 the charge of fraud. 80 An injunction against a judgment, for 
 unpaid purchase money of real property, granted on the ground of 
 defective title, will not be dissolved unless defendant exhibits a 
 good title, and establishes its sufficiency before the court. 81 And 
 if such an injunction is dissolved, before the vendor has tendered 
 a good and sufficient conveyance, it may be reinstated. 82 But, 
 where a purchaser has enjoined a sale, under a deed of trust 
 securing the payment of the purchase money, on the ground of 
 defective title, the injunction will be dissolved when the defect is 
 removed. 83 
 
 § 332. Dissolution of injunction granted on charges of fraud. 
 — Although it is a general rule that an injunction will be dissolved 
 
 79. Louisville & N. R. Co. v. Phil- that defendant's title was good as 
 yaw, 94 Ala. 463, 10 So. 83. Plain- against plaintiff, and that defendant, 
 tiff, alleging title to a mill, obtained on dissolution of the injunction, was 
 an injunction to restrain defendant entitled to damages sustained by rea- 
 from removing certain machinery son of the injunction, the measure of 
 therefrom. Defendant denied plain- which would be the value of the 
 tiff's title, and alleged that he had granddaughter's consent to the re- 
 conveyed the mill in question to his moval. Church v. Barkman, 62 Hun 
 granddaughter, reserving the right (N. Y.), 618, 16 N. Y. Supp. 624. 
 to carry away the machinery. Plain- 80. Roberts v. Anderson, 2 Johns, 
 tiff insisted that the machinery, be- Ch. (N. Y.) 202. 
 
 ing fixtures, was real estate, and 81. Moore v. Cooke, 4 Hayw. 
 
 passed in the conveyance to the (Tenn.) 84; Moredock v. Williams, 
 
 granddaughter, and that defendant 1 Overton (Tenn.), 325. 
 
 had no right to remove the same. 82. Grantland v. Wight, 2 Munf. 
 
 Held, whether or not the fixtures (Va.) 179. 
 
 were real estate, the granddaughter, 83. Lovell v. Chilton, 2 W. Va. 
 
 not choosing to assert title thereto, 410. 
 
 512
 
 Dissolution. 
 
 §332 
 
 where the answer denies all the facts and circumstances upon 
 which the equity of the bill is based yet this is subject to the ex- 
 ception that where the gravamen of a petition for an injunction 
 is fraud, the preliminary injunction will not be dissolved upon the 
 answer, even though it has fully denied the allegations and equities 
 of the petition. 84 In a case in Pennsylvania, however, it is decided 
 that a preliminary injunction, granted on a bill charging fraud, 
 should be dissolved, on defendant's positive, direct, and explicit 
 answer, and defendant's denying the fraud. 85 But to justify the 
 dissolution of an injunction under such circumstances the denials 
 of fraud must not be merely general and bare, but must be at- 
 tended with a full explanation of the facts disclosed in the bill 
 and moving affidavits; 86 for, an injunction granted on plausible 
 allegations of fraud, must not be dissolved on an answer which 
 leaves the question of fraud as unsettled as before. 87 And an in- 
 junction obtained on the ground of fraud, in certain conveyances, 
 will be dissolved on its appearing from the answer, that the com- 
 plainant had long known of the alleged fraud, and had acquiesced 
 in the defendant's acts of ownership. 88 
 
 84. Georgia. — Dent v. Michael, 12 
 Ga. 5. 
 
 Iowa. — Walker v. Stone, 70 Iowa, 
 103, 30 N. W. 39; following Stewart 
 v. Johnson, 44 Iowa, 435. 
 
 New Jersey. — Emson v. Ivins, 42 
 N. J. Eq. 277, 10 Atl. 877. 
 
 A T eto York. — Litchfield v. Relton, 6 
 Barb. 187; Claflin v. Hamlin, 62 
 How. Prac. 284. 
 
 North Carolina. — Coleman v. How- 
 ell, 131 N. C. 125, 42 S. E. 555. 
 
 Texas. — Friedlander v. Ehren- 
 worth, 58 Tex. 350. 
 
 85. Union St. R. Co. v. Hazleton 
 & N. S. E. R. Co., 154 Pa. St. 422, 
 26 Atl. 557. 
 
 86. Hayden v. Thrasher, 20 Fla. 
 715, 735. 
 
 87. Roberts v. Anderson, 2 Johns. 
 Ch. (N. Y.) 204, per Kent, Ch.: 
 
 " The fraud, as charged, is a proper 
 and familiar head of equity jurisdic- 
 tion, and, unless the answer be full 
 and satisfactory, the injunction, if 
 right in the first instance, ought to 
 be retained until the hearing. All 
 the denial contained in the answer 
 is that the defendants were not privy 
 to any fraud, and were bona fide pur- 
 chasers under a judgment and execu- 
 tion. . . . This is leaving the 
 question of fraud as unsettled as be- 
 fore the answer came in. The case 
 does not fall within the reason of the 
 general rule, that an injunction is to 
 be dissolved when an answer comes 
 in and denies all the equities of the 
 bill." 
 
 88. Trustees v. Gilbert, 1 Beas. 
 (N. J.) 78. 
 
 513 
 
 33
 
 §§ 333, 334 Dissolution. 
 
 § 333. Dissolution on removal of cause to Federal court. — 
 
 It is provided by the Revised Statutes of the United States, 
 that an injunction had in a cause in a State court, shall, on 
 removal of the cause to a Federal court, continue in force until 
 dissolved in the Federal court; but a motion for dissolution will 
 not be entertained there without leave of court first obtained, as 
 such a motion is regarded as an application for a re-argument of 
 the motion before the State court. 89 So it has been decided that 
 while a Federal court may in some cases dissolve an injunction 
 allowed in a case in a State court before the removal of such case 
 to the Federal court, yet such an order will not be made as the 
 result of the reconsideration of any question of pleading or practice 
 decided by the State court before it was deprived of jurisdiction. 90 
 The former rule was that a removal from a State court to a Federal 
 operated in itself as a dissolution of an injunction before granted 
 by the State court. 91 
 
 § 334. Dissolution not affected by mere appeal When an 
 
 injunction has been dissolved, it cannot be revived except by a new 
 exercise of judicial power, and a mere appeal from the order or 
 decree of dissolution does not affect it until reversal. 92 An injunc- 
 
 89. Carrington v. Florida R. Co., 109 U. S. 150, 161, 3 S. Ct. 136, 
 9 Blatchf. (U. S.) 468. 27 L. Ed. 888; Slaughter House 
 
 90. Smith v. Schwed, 6 Fed. 455, Cases, 10 Wall. (U. S.) 273, 
 holding that in such a case an in- 297, 19 L. Ed. 915. Equity Rule, 
 junction would not be dissolved on 93, is as follows: "When an ap- 
 ground that bill was not sufficiently peal from a final decree granting 
 verified. or dissolving an injunction is al- 
 
 91. Hatch v. Chicago R. Co., 6 lowed by a justice or judge who took 
 Blatchf. (U. S.) 105; McLeod v. part in the decision of the cause, he 
 Duncan, 5 McLean (U. S.) 342. may, in his discretion, at the time of 
 
 92. Knox County v. Harshman, the allowance, make an order sus- 
 132 U. S. 14, 10 S. Ct. 8, 33 L. pending or modifying an injunction, 
 Ed. 249; Leonard v. Ozark Land Co., during the pendency of the appeal, 
 115 U. S. 465, 6 S. Ct. 127, 29 L. upon such terms as to bond or other- 
 Ed. 445. A decree of a Federal court wise as he may consider proper for 
 dissolving an injunction is not af- the security of the rights of the op- 
 fectcd by taking the case for review posite party." Leonard v. Ozark 
 to the Supreme Court on appeal or Land Co.. 115 XJ. S. 465, 6 S. Ct. 127, 
 writ of error. Hovey v. McDonald, 29 L. Ed. 445. 
 
 514
 
 Dissolution. 
 
 ^335 
 
 tion is not dissolved by taking an appeal from the order granting 
 it; 93 nor is it suspended by an appeal and an appeal bond. 91 Thus, 
 on the dissolution of an injunction restraining a judgment cred- 
 itor from proceeding with an execution, he may proceed, notwith- 
 standing an appeal, to collect his judgment as if he had not been 
 enjoined, 95 and without any special leave from the court which 
 granted the injunction; 96 and in such a case, if an execution is 
 taken out pending the appeal, the court will not, on petition, award 
 a supersedeas. 97 
 
 § 335. Notice of motion to dissolve; general rule. — The gen- 
 eral rule is that the party who has obtained an injunction is en- 
 titled to notice of motion to dissolve it; 98 and that the injunction 
 cannot be vacated at chambers on an ex parte application. 99 And 
 service of a rule to dissolve at the plaintiff's office, in his absence, 
 is not sufficient, and the defect is not waived by his appearance 
 in court merely to take an appeal. 1 Notice of a motion to dissolve 
 an injunction must be given a reasonable time before the motion 
 
 93. Swift v. Shepard, 64 Cal. 423, 
 1 Pac. 493; Merced Mining Co. v. 
 Fremont, 7 Cal. 130; Leonard v. 
 Ozark Land Co., 115 U. S. 465, 6 S. 
 Ct. 127, 29 L. Ed. 445. 
 
 94. Heinlen v. Cross, 63 Cal. 44. 
 
 95. Hoyt v. Gelston, 13 Johns. 
 (N. Y.) 139, per Curiam: "In this 
 case the injunction has been dis- 
 solved, from which order there was 
 an appeal; and it is now urged that 
 this appeal suspends all proceedings 
 in this court as much as if the in- 
 junction was still in force. To give 
 such effect to an appeal would be 
 very mischievous in practice and 
 serve as a great engine of delay. We 
 must consider the case now in this 
 court as if no injunction had ever 
 issued." 
 
 96. Wood v. Dwight, 7 Johns. Ch. 
 (N. Y.) 295. See, also, Duckett v. 
 Dalrymple, 1 Rich. Law (S. C), 143. 
 
 97. Garrow v. Carpenter, 4 Stew. 
 & P. (Ala.) 336. But see Turner v. 
 Scott, 5 Rand. (Va.) 332; Epps v. 
 Thurman, 4 Rand. (Va.) 384. 
 
 98. Pike v. Bates, 34 La. Ann. 391; 
 Waffle v. Vanderheyden, 8 Paige (N. 
 Y.), 45; Newton M'f'g Co. v. White, 
 47 Ga. 400. 
 
 99. Gravais v. Falgoust, 34 La. 
 Ann. 99. 
 
 1. Marin v. Thierry, 29 La. Ann. 
 362, where it was held that the ser- 
 vice of notice must be personally 
 made on the plaintiff, or served at 
 his domicil, or on his attorney, and 
 that service at plaintiff's office in his 
 absence was not sufficient. 
 
 The solicitor of a defendant who 
 has appeared in the suit is entitled to 
 notice of an application for an in- 
 junction upon a supplemental bill. 
 Snediker v. Pearson, 2 Barb. Ch. (N. 
 Y.) 107. 
 
 515
 
 § 336 Dissolution. 
 
 is made, in order to allow complainant to take affidavits to support 
 his bill. 2 A notice of a motion to dissolve an injunction " for 
 irregularity in the proceedings," is insufficient; it must indicate 
 in what particular the proceedings are irregular. 3 But a general 
 notice is sufficient when the motion to dissolve is for want of 
 equity in the bill. 4 And a notice of motion to dissolve an injunc- 
 tion upon bill and answer need not state the grounds upon which 
 it is based. 5 But where an answer has been filed and on a motion 
 to dissolve defendant relies upon anything except the want of 
 equity in the bill and his answer, he must specify in his notice the 
 grounds upon which he rests. 6 The notice of motion must be 
 certain, and not in the alternative. Thus a notice to the com- 
 plainant that application will be made to the chancellor in vaca- 
 tion to dissolve the injunction " at Lafayette, in Chambers county, 
 Ala., or at such place as said chancellor may be required by law," 
 is void for uncertainty. 7 In Georgia it is decided that the latter 
 practice as to notice of motion is to require the motion to be 
 put on the motion docket and reasonable notice to be given 
 according to the circumstances. 8 In West Virginia it is held that 
 while a bill of injunction is still at rules, not on the court docket, 
 because not material for hearing, the defendant may move the court 
 to dissolve the injunction, but that the opposite party, who doe3 
 not appear, must have reasonable notice of such motion. 9 
 
 § 336. Same subject. — Under section 626 of the New York 
 Code of Civil Procedure, where an injunction was granted without 
 notice, the party enjoined may move before the granting judge 
 to dissolve it, on the papers on which it was granted, and without 
 notice; but in such cases the judge should proceed with caution, 
 
 2. Wilkins v. Jordan, 3 Wash. C. 267 ; Miller v. Traphagan, 6 N. J. Eq. 
 C. 226. 200; Morris Canal Co. v. Bartlett, 3 
 
 3. Miller v. Traphagan, 6 N. J. N. J. Eq. 9. 
 
 Eq. 200. 7. Florence v. Paschal, 48 Ala. 
 
 4. Morris Canal Co. v. Bartlett, 3 458. See State v. Allen, 33 Ala. 422. 
 N. J. Eq. 9. 8. Newton M'f'g Co. v. White, 47 
 
 5. Hanna v. Curtis, 1 Barb. Ch. Ga. 400. 
 
 (N. Y.) 263. 9. Fadely v. Tomlinson, 41 W. Va. 
 
 6. Brown v. Winans, 11 N. J. Eq. 606, 24 S. E. 645. 
 
 516
 
 Dissolution. § 336 
 
 and not dissolve the injunction without notice to plaintiff, except 
 when it is necessary to save the party enjoined from serious loss. 10 
 Such a motion to dissolve without notice could also be made to the 
 general term, in cases where there was necessity for immediate 
 action, and where delay would cause irreparable injury to the 
 party enjoined, 11 and may now be made to a term of the Appel- 
 late Division of the Supreme Court. lla But such a motion 
 cannot be made to another judge without notice, without 
 proof by affidavit that the granting judge is absent or dis- 
 abled. 12 Where a notice states that the motion to dissolve 
 will be " based upon the papers, pleadings and records in 
 the cause, and upon affidavits hereafter to be filed," it is not 
 error for the court to admit in evidence, at the hearing of the 
 motion, an answer filed by the defendants after the notice is given ; 
 for even if the notice had the effect of confining defendant to 
 the use of such pleadings as were on file at the time it was given, 
 the court might, in its discretion, hear any other evidence which 
 would aid it in arriving at the real facts. 13 A notice of a motion 
 to dissolve, given at the statutory time, though at a time when 
 the court has no jurisdiction of the case, is sufficient if the court 
 has jurisdiction when the motion is made. 14 Where a motion to 
 
 10. Peck v. Yorks, 41 Barb. (N. Hun (N. Y.), 231, per Learned, C. 
 Y.) 547; Bruce v. Delaware, etc., J.: "As the judge who grants an 
 Canal Co., 8 How. Pr. (N. Y.) 440; injunction may have acted injudi- 
 National Gas Light Co. v. O'Brien, ciously, the Code provides that upon 
 38 How. Pr. (N. Y.) 271. And see an ex parte application he may dis- 
 O'Connor v. Starke, 59 Miss. 481. solve this injunction, thus giving an 
 
 11. Gere v. New York Central, opportunity to the aggrieved party 
 etc., R. Co., 38 Hun (N. Y.), 231, per to show to the judge the mistake he 
 Learned, C. J. : " We are of the may have made. But very wisely 
 opinion that the privilege given by such an ex parte application cannot 
 section 626 of the Code to make such be made to another judge, else there 
 a motion before the general term, ex would be a conflict of authority." 
 parte, was intended to afford an op- 1,3. Younglove v. Steinman, 80 Cal. 
 portunity to obtain relief in special 375, 22 Pac. 189. 
 
 cases where there was necessity for 14. Younglove v. Steinman, 80 
 
 immediate action." Cal. 375, 22 Pac. 189. In California, 
 
 11a. N. Y. Code Civ. Proc, § 626. when a defendant moves to dissolve 
 
 12. N. Y. Code Civ. Pro., § 626; an injunction granted on the ex parte 
 Gere v. N. Y. Central R. Co., 38 application of plaintiff, and offers 
 
 517
 
 § 337 Dissolution. 
 
 dissolve an injunction is made during term time, no notice is 
 necessary. 15 If the equity judge has allowed an interlocutory in- 
 junction, which afterwards clearly appears to him to have been 
 improperly allowed, he may, of his own motion, set it aside at any 
 time, without any notice having been given of an application to 
 dissolve. The statute, requiring eight days' previous notice of a 
 motion to dissolve an injunction, has reference to applications to 
 dissolve made by a party. But, on appeal from an order of dis- 
 solution, made under such circumstances, the appellate court will 
 consider only the reasons assigned in the court below, for its judi- 
 cial action. 16 
 
 § 337. Who may apply for dissolution — Under the provisions 
 of the New York Code of Procedure, which authorize " the party 
 enjoined " to apply for an order dissolving the injunction, 17 it 
 has been held that a person who is prevented by the injunction 
 from receiving money he would otherwise be entitled to take, 
 may apply for the order of dissolution, though the only manner 
 in which he was enjoined from receiving the money was that others 
 were enjoined from paying it to him. 18 It is also thought that 
 any party who is directly injured by an injunction should be 
 allowed to move for its dissolution, under the general principle that 
 every one is entitled to relief who is deprived of his rights by an 
 improvident order of the courts, and that no court should allow 
 
 evidence to overcome plaintiff's prima granting an injunction may be va- 
 
 facie case, especially when he relies cated. Temple J., dissenting. Hef- 
 
 upon the fact that since the issuance flon v. Bowers, 72 Cal. 270, 13 Pac. 
 
 of the injunction the principal thing 690. See, also, Falkinburg v. Lucy, 
 
 complained of has been abated, plain- 35 Cal. 52; Delger v. Johnson, 44 Cal. 
 
 tiff is entitled to notice, and should 182; Hiller v. Collins, 63 Cal. 235. 
 
 be permitted to support with evidence 15. Williams v. Cooper, 14 Ky. 
 
 the prima facie case, which was all Law, 284, 20 S. W. 229. 
 
 he was required to make in the first 16. Conover v. Ruckman, 33 N. J. 
 
 place. The manner of procuring the Eq. 303. 
 
 dissolution is not governed by Code 17. N. Y. Code Civ. Pro., §§ 626, 
 
 Civ. Pro., § 937, providing that ex 627. 
 
 parte orders may be vacated without 18. Landers v. Fisher, 24 Hun (N. 
 
 notice, but by section 532, prescrib- Y. ) , 648. 
 ing the manner in which an order 
 
 518
 
 Dissolution. § 337a 
 
 itself to be made the instrument of wrong, especially where fraud 
 and collusion are suspected, and where trusts and relations of con- 
 fidence are involved. 19 The general rule, however, would seem to 
 be that, as no one but a party to a suit can make a motion in it, 
 except for the purpose of being made a party, an injunction against 
 a defendant to restrain him from receiving money in his attor- 
 ney's hands, or from permitting it to be paid to any one on his 
 behalf, will not be dissolved on motion of the attorney. 20 And 
 ordinarily when an injunction is obtained against a trustee, the 
 cestui que trust has no right to be heard on the motion to dissolve. 2 ' 
 
 § 337a. Same subject; where defendant in contempt. — Where 
 
 a defendant is in contempt for the violation of an injunction, it 
 has been decided that he cannot be heard on a motion to dissolve 
 the injunction until he has purged the contempt. 22 But in a case 
 in New York it is decided that when a defendant, while in con- 
 tempt for violation of an injunction, moves for its dissolution, and 
 is entitled on the merits thereto, his motion should be granted on 
 payment of the costs of the proceedings taken for his punishment. 23 
 And in another case in New York it is held that it is no answer 
 to a motion to dissolve an injunction that the defendant has vio- 
 lated it. 24 In a more recent case in New York it is decided that 
 in so far as a motion to dissolve appeals to the favor of the court, 
 it should not be granted where the party making it has been guilty 
 of contempt. 25 And it was declared by the court in this case that 
 where an affidavit clearly disclosed a violation of the injunction, 
 the court might consider that fact upon an application to dissolve, 
 although the defendant may not formally have been put in con- 
 
 19. Lowber v. New York, 26 Barb. Prac. (N. Y.) 225; Faderly v. Tom- 
 (N. Y.) 262; Gould v. Mortimer, 16 linson, 41 W. Va. 606, 24 S. E. 645. 
 Abb. Pr. (N. Y.) 448; Dwight's Case. 23. Field v. Chapman, 13 Abb. 
 15 Abb. Pr. (N. Y.) 259. Prac. (N. Y.) 320. 
 
 20. Linn v. Wheeler, 21 N. J. Eq. 24. Smith v. Reno, 6 How. Prac. 
 231. (N. Y.) 124, disapproving Knom v. 
 
 21. Ball v. Tunnard, Madd. & Hogan, 4 How. Prac. (N. Y.) 225. 
 Geld. 275. 25. Michel v. O'Brien, 6 Misc. R. 
 
 22. Jacoby v. Goetter, Weil & Co., (N. Y.) 408. 
 74 Ala. 427; Krom v. Hogan, 4 How. 
 
 519
 
 ■§§ 337b, 338 Dissolution. 
 
 tempt by a direct proceeding for tbat purpose. 26 In a case in 
 Wisconsin it is also beld that a party against whom an injunction 
 is issued upon an ex parte application has the legal right to demand 
 a hearing upon the question of the regularity and propriety of 
 issuing the same, and that the fact that he may have violated such 
 injunction does not deprive him of that right. 27 
 
 § 337b. Same subject continued. — In this connection it has 
 been decided that while a party is in contempt for disobedience 
 to an injunction, he cannot properly have a hearing on a motion 
 for the dissolution, yet when the nature and extent of the punish- 
 ment to be inflicted for such contempt, depend on the determination 
 of the question whether the injunction shall be continued or not 
 and involves essentially the inquiry whether it was not in the first 
 instance inprovidently granted the hearing may be allowed. 28 And 
 it is held to be error on the part of the court to refuse to allow a 
 party to move for a dissolution of an injunction on the ground that 
 he is in contempt in violating it, where no notice of contempt pro- 
 ceedings has been given to him in order that he may have an 
 opportunity to prepare his defense. 29 
 
 § 338. Dissolution by whom granted. — Unless the necessity 
 is so urgent as to require immediate action, an injunction will 
 not be modified, changed or set aside, except by the judge who 
 granted it. 30 An equity judge, however, who has allowed an inter- 
 
 26. Michel v. O'Brien, 6 Misc. R. 28. Crabtree v. Baker, 75 Atl. 91, 
 (N. Y.) 408. Compare Smith v. 51 Am. Rep. 424; Endicott v. Mathis, 
 Austin, 1 Code R. N. S. (N. Y.) 137. 9 N. J. Eq. 110. 
 
 27. Kaehler v. Dobberpahl, 56 Wis. 29. State v. Clancy, 24 Mont. 359, 
 497, 14 N. W. 631. The court said, 61 N. E. 987. 
 
 " But a party in contempt is not 30. Klein v. Fleetford, 35 Fed. 98. 
 
 deemed by the courts an outlaw, nor In this case Bremer, J., refused to 
 
 do courts disregard his legal rights modify an injunction made by a dis- 
 
 pending proceedings to punish for trict judge, though the relief asked 
 
 such contempt. The rule seems to be for would have been proper, because 
 
 that while in contempt the courts will the case was not an urgent one, but 
 
 not grant him any favors but it will he overruled the motion pro forma, 
 
 see that his legal rights are pro- giving leave to renew it before the 
 
 tected." Per Taylor, J. district judge as soon as he returned. 
 
 520
 
 Dissolution. § 339 
 
 locutory injunction which subsequently clearly appears to him to 
 have been improperly allowed may of his own motion afterwards 
 dissolve the injunction and it is held that a statute requiring notice 
 in case of an application to dissolve is not necessary. In such a 
 case it is said that inasmuch as it was in the discretion of the judge 
 in the first instance to refuse the injunction, he may, in his dis- 
 cretion, set aside the allowance of it if he is satisfied that it 
 should not have been allowed. 31 In South Carolina where 
 one circuit judge has issued a temporary injunction restraining 
 the levy of a township tax until further orders of the court, with 
 leave to other persons interested to become parties and move for a 
 dissolution thereof, another circuit judge has jurisdiction to dis- 
 solve the injunction upon motion of such new party. This would 
 not be a review and reversal by one circuit judge of the acts of his 
 predecessor. 32 The Supreme Court of South Carolina, though hav- 
 ing power under the State constitution to issue writs of injunction 
 and such other remedial writs as may be necessary to give it a 
 general supervisory control over the other courts of the State, has 
 no power to dissolve an injunction granted on circuit. 33 A tem- 
 porary injunction, granted without notice, by a probate judge, in 
 the absence of the district judge, may be dissolved by the district 
 judge, upon notice, at any time before trial. 34 
 
 § 339. Dissolution at chambers ; in vacation ; notice In 
 
 Louisiana, an injunction cannot be dissolved at chambers without 
 notice. 35 The South Carolina Code provides that " no order to 
 stay proceedings for a longer time than twenty days shall be 
 granted out of court except on notice to the adverse party ;" 3 * 
 but where defendant petitioned to vacate an ex parte order grant- 
 ing an injunction, within twenty days after it was made, it was 
 
 31. Conover v. Rucksman, 33 N. 33. State v. Westmoreland, 27 S. 
 J. Eq. 303. C. 625, 7 S. E. 256. 
 
 32. Bouknight v. Davis, 33 S. C 34. Kemper v. Campbell, 45 Kan. 
 410, 12 S. E. 96. This practice is au- 529, 26 Pac. 53. 
 
 thorized by section 246 of the S. C. 35. Gravais v. Falgoust, 34 La. 
 
 Code. Ann. 99. 
 
 36. Code Civ. Pro., § 402. 
 
 521
 
 § 340 Dissolution. 
 
 held that the defect was cured. 117 And it is not error to vacate a 
 restraining order, no cause being shown to the contrary, when, at 
 the time and place fixed, by consent, for the hearing at chambers, 
 the party who obtained the order more than twenty days before 
 fails to appear, either in person or by attorney. 38 Where an in- 
 junction has been awarded after notice, it is error to dissolve the 
 same in vacation, under the Colorado Code, but, on an appeal 
 from the final judgment in the action, such error is not 
 ground for reversal, unless it appears that such premature dis- 
 solution was prejudicial to the substantial rights of the plaintiff 
 in the final adjudication. 39 In Virginia it is decided that where 
 a motion is made in vacation for the dissolution of an injunction 
 the court should not determine the case on its merits where the 
 consent authorizing the court to so act has not been entered of 
 record. 40 
 
 § 340. Abatement of injunction on plaintiff's death The 
 
 equitable right subsisting in a plaintiff, together with the equitable 
 remedy by injunction with which he has been seeking to enforce 
 that right, devolves at his death upon his representatives. Thus, 
 where the sole plaintiff in an action for a mandatory injunction to 
 remove an obstruction to the access of light died six months after 
 the issue of the writ, it was held that as the remedy of injunction 
 affected realty, it passed to the devisee of the realty. 41 It seems in 
 such cases that the abatement of the suit by complainant's death 
 does not operate, in itself, as a dissolution of the injunction with- 
 out an order of court to that effect; 42 but the defendant is entitled 
 to a rule upon the representative of deceased to revive the action, 
 or that the injunction will be dissolved. 43 Ordinarily the injunc- 
 
 37. Meinhard v. Youngblood, 37 S. 43 Ch. D. 607. 
 
 C. 223, 15 S. E. 947. 42. Collier v. Bank of Newbern, 21 
 
 38. Coward v. Chastain, 99 N. C. N. C. (1 Dev. & Bat. Eq.) 328, 
 443, 6 S. E. 703. wherein it is said that the death of a 
 
 39. Roberts v. Arthur, 15 Colo. party to a suit in equity does not 
 456. 24 Pac. 922. vacate nor render inoperative the or- 
 
 40. Mount v. Radford Trust Co., ders made in the cause while the par- 
 93 Va. 427, 25 S. E. 244. Decided ties were regularly before the court, 
 under Va. Code. § 3427. 43. Hawley v. Bennett, 4 Paige 
 
 41. Jones v. Simes (1890), L. R. (N. Y.), 163. 
 
 522
 
 Dissolution. 
 
 §340 
 
 tion in such cases should not be dissolved without notice to the 
 representatives of the deceased, if such notice is practicable. 44 
 
 44. Walsh v. Smyth, 3 Bland, Ch. 
 
 (Md.) 9, 23, per Bland, Ch.: "It 
 has been urged that so much of this 
 decree as dissolves the injunction has 
 been improvidently made, because it 
 
 was awarded in a case to which the 
 intestate of the petitioner had been a 
 party; and that since his death it 
 has been dissolved without his repre- 
 sentative having been made a party, 
 or being notified to revive. It is true 
 that an abatement of a suit, in which 
 an injunction had been granted, does 
 not in strictness immediately and of 
 itself dissolve the injunction; because 
 the injunction, as a judgment of the 
 court, gives a present vested right 
 which must stand until reversed or 
 revoked by the court itself. And it 
 is, therefore, a general rule, founded 
 on the liberality of the court, that, in 
 all such cases of abatement, to pre- 
 vent the representatives of the de- 
 ceased from being taken by surprise, 
 notice must be given to them to re- 
 vive, or that the injunction be dis- 
 solved. White v. Hayward, 2 Ves. 
 Sen. 461. In this the injunction has 
 been dissolved without any such no- 
 tice, and therefore the only question 
 now is, whether looking to all the cir- 
 cumstances of this case it might have 
 been dissolved without any actual no- 
 tice to the legal representatives of 
 the late plaintiff. According to the 
 English authorities such a notice, 
 when required to be given, is in gen- 
 eral A'ery peremptory and short, usu- 
 ally not more than a week. Stuart v. 
 Ancell, 1 Cox Ch. 411 : Hill v. Hoare, 
 2 Cox Ch. 50. But the deceased party 
 may have in fact no legal representa- 
 tives, or they mav be numerous and 
 
 dispersed, or they may reside abroad, 
 so that it would be impossible or very 
 difficult to give them actual notice. 
 Carter v. Washington, 1 Hen. & M. 
 203. Where the representative was 
 not a resident of this State, I have or- 
 dered notice to be entered on the 
 docket to revive before the next term, 
 or that the injunction then stand dis- 
 solved; and in that case I declared 
 that the lapse of time, nine years 
 since the abatement, should be taken 
 into consideration. Griffith v. Bron- 
 augh, 1 Bland, Ch. 547. Here the 
 abatement took place more than 
 thirty-two years ago, and there is 
 strong reason to believe that Walker, 
 the administrator, must have known 
 of the institution of this suit. But 
 Walker has been dead more than 
 twenty years, and, during all that 
 time, and when this decree was 
 passed, there was. in fact, no one to 
 whom notice could have been given 
 by these defendants to revive or have 
 the injunction dissolved. A notice 
 entered on the docket would have 
 been nugatory, and a mere waste of 
 time. So that, if it could not have 
 been dissolved without notice of any 
 kind, after such a lapse of time, it 
 must have been allowed to stand, in 
 effect, as a perpetual injunction. I 
 am, therefore, of opinion, that under 
 such circumstances the great lapse of 
 time must of itself be deemed suffi- 
 cient ground to entitle any of the sur- 
 viving parties, or the representative 
 of a defendant to claim and move 
 for an immediate and total dissolu- 
 tion of the injunction." Willis v. 
 Yates, 8 Cond. Ch. 512. 
 
 523
 
 §§ 341, 341a, 342 Dissolution. 
 
 § 341. Abatement by death of defendant. — Where an injunc- 
 tion is directed to the defendant in personam, as it is ordinarily, 
 it abates on his death by operation of law. 45 When an injunction 
 has abated by the defendant's death, the court will make a rule 
 that it stand dissolved unless the complainant revive it against the 
 defendant's representatives. 46 So in a case in New York it is 
 decided that if pending an injunction a suit abates by the death 
 of the defendant, the representatives of the defendant who was 
 restrained may have an order that the complainant or his repre- 
 sentatives revive within such reasonable time as may be fixed by 
 the court for that purpose, or that the injunction will be dissolved. 47 
 
 § 341a. Continuance of motion to dissolve. — It is a general 
 
 rule not to continue a motion to dissolve an injunction unless from 
 some very great necessity, because the court, is always open to 
 grant, and, of course, to reinstate an injunction whenever it shall 
 appear proper to do so ; and because, too, the plaintiff should always 
 be ready to prove his bill. 48 
 
 § 342. Second motion to dissolve. — A defendant who has once 
 moved unsuccessfully for the dissolution of an injunction cannot 
 make a second motion upon the same papers without obtaining 
 
 45. Johnson v. Elwood, 82 N. Y. ceeded in maintaining a right to the 
 
 362, 365, per Miller, J.: "The acts injunction order after his death, no 
 
 of the defendant in interfering with judgment could have been entered 
 
 the lots in question were of a char- against the defendant; nor is it ap- 
 
 acter purely personal to himself, and parent in what manner his represen- 
 
 the restraint upon him by injunction tatives could have been restrained in 
 
 was at an end upon his decease, and this action." 
 
 the maxim, actio personalis monitur 46. Cummins v. Cummins, 8 N. J. 
 
 cum persona applies. As the action Eq. 173; White v. Fitzhugh, 1 Hen. 
 
 became abated and did not survive & M. (Va.) 1. See Hawley v. Ben- 
 
 upon the death of defendant against nett, 4 Paige, 163; Hill v. Hoare, 2 
 
 his heirs or representatives, there Cox Ch. 50. 
 
 was no authority in the court to di- 47. Leggett v. Dubois, 2 Paige Ch. 
 
 rect its discontinuance or to make (N. Y.) 211. 
 
 any other order than that it be 48. Steelsmith v. Fisher Oil Co., 
 
 deemed abated by such death. It is 47 W. Va, 391, 135 S. E. 15. 
 evident that if the plaintiff had sue 
 
 524
 
 Dissolution. §§ 342a, 343 
 
 leave of court. 49 In New York if a first motion is denied, a second 
 on substantially the same facts must be made to the same judge 
 or to the court. If it is made to another judge out of court, an 
 order granted thereon must be vacated by the judge who made it, 
 or, if he is unable to hear the application, by any judge of the 
 court on proof of the facts. 50 And a motion addressed to discretion 
 cannot be renewed on the same facts unless leave is obtained. 51 
 But the decision of a court dissolving an injunction does not pre- 
 clude it from granting a perpetual injunction on the same state 
 of facts, at the final hearing of the cause on the merits. 52 
 
 § 342a. Same subject ; statutes as to construed. — A hearing on 
 a petition for a temporary injunction and the allowance of the writ 
 after the hearing is not equivalent to a hearing on a motion to dis- 
 solve within the meaning of a Code provision that only one motion 
 to dissolve or modify an injunction upon the whole cause shall be 
 allowed and therefore a motion to dissolve, made after the granting 
 of the injunction, should not be overruled on this ground, it being 
 in fact the first and only motion made. 53 And though it is pro- 
 vided by Code that only one motion to dissolve an injunction may 
 be made yet where a judge who grants an injunction overrules such 
 a motion, with leave to renew and present the same to another 
 court in which the main cause is pending, the renewal of the 
 motion in the latter court is not another motion within the mean- 
 ing of such a provision. 54 
 
 § 343. Restitution by plaintiff on dissolution. — Where the act 
 sought to be enjoined is done before the complainant's bill is filed, 
 and he knows it is already done, a preliminary injunction issued 
 to prevent the act is improvident and will properly be dissolved on 
 
 49. Lowry v. Chautauqua Bank, to use affidavits in his possession. 
 Clarke's Ch. (N. Y.) 67. Witmark v. Herman, 44 N. Y. Super. 
 
 50. Code Civ. Pro.. § 776. 144. 
 
 51. Melville v. Matthewson, 49 N. 52. Banks v. American Tract Soc, 
 Y. Super. 388. Leave to renew is 4 Sandf. Ch. (N. Y.) 438. 
 usually granted upon the denial of a 53. Hinkle v. Saddler, 97 Iowa, 
 motion for a defect in the moving 526, 66 N. W. 765. See Westerly 
 papers. Dollfus v. Frosch, 5 Hill, Waterworks v. Westerly, 77 Fed. 783. 
 493; Wood v. Kimball, 9 Abb. Pr. 54. Carrothers v. Newton Mineral 
 419. But not where a party delib- S. Co., 61 Iowa, 681, 17 N. W. 43. 
 erately elects on the first motion not 
 
 525
 
 § 344 Dissolution. 
 
 the hearing, and if plaintiff in such a case has obtained an advan- 
 tage by acting when his opponents' hands were tied, he will be 
 compelled to relinquish it so that the original status may be re- 
 stored. Thus where a preliminary injunction forbidding the 
 defendant from taking possession of certain land is improvidently 
 issued after he has taken possession, and the complainant retakes 
 possession pending the injunction, defendant is entitled, on disso- 
 lution of the injunction, to a writ of restitution. 55 For a complain- 
 ant thus to violate his own injunction, when the evident purpose 
 of it is to preserve the existing status until a final adjudication, is 
 such an abuse of the process of the court as warrants its dissolu- 
 tion. 56 Upon the dissolution of an injunction against defendant 
 for forcible entry, the court should, on his motion, award him a 
 writ of restitution to restore to him the possession which he 
 yielded under the injunction. 57 
 
 § 344. Reinstatement on dissolution. — Provisions of the Ken- 
 tucky Civil Code for a motion to reinstate an injunction which has 
 been dissolved on motion, have been construed as applying only 
 where the dissolution has taken place in advance of the final judg- 
 ment in the action, for in such a case there can be no appeal 
 
 55. Lake Shore, etc., R. Co. v. Tay- lawfully in possession—those ques 
 
 lor 134 111. 603, 25 N. E. 588, per tions cannot be determined here. It 
 
 Scholfield, C. J. : " The only func- is sufficient for the present that ap- 
 
 tion of an injunction is to stay pellee after having tied the hands of 
 
 threatened action and suspend the appellant as to the assertion of its 
 
 conflicting claims of right of the re- claim of right, and while they were 
 
 spective parties where they then are so tied, has changed the status quo 
 
 until they can be properly adjudi- of the parties in this respect. She 
 
 cated. 2 Daniell, Ch. Pr. 5th ed. must restore things to the same 
 
 1639, and note. And so it must nee- plight and condition, as nearly as 
 
 essarily follow that to allow one possible, in which they were when the 
 
 party to obtain any advantage by act- judge made the order upon her bill 
 
 ing when the hands of the adverse that an injunction issue." Citing 
 
 party are thus tied by the writ or Hawks v. Champion, Cary, 51; 
 
 the order for it, is an abuse of legal Dowche v. Perrot, Cary, 63; Hill v. 
 
 process which cannot be tolerated. It Portman, Cary, 140. 
 is immaterial here in whom is the 56. Van Zandt v. Argentine Min- 
 
 legal title, or whether when appellant ing Co., 2 McCrary, 642. 
 built its fence it was a trespasser or 57. Wangelin v. Goe, 50 111. 459. 
 
 526
 
 Dissolution. § 344 
 
 because no final judgment has been rendered ; but if the injunction 
 is dissolved upon rendering the final judgment, the plaintiff's only 
 remedy is by an appeal of the whole case; 58 and in such a case a 
 motion to reinstate is not in order, even though the judgment give 
 leave to plaintiff to apply for a reinstatement of the injunction 
 and continue it in force for a specified time after the judgment 
 is rendered. 59 Where an order dissolving an injunction has been 
 affirmed on appeal, a motion in the appellate court to reinstate 
 the injunction on averments proposed to be inserted in the bill in 
 order to give it equity according to the ruling of the appellate 
 court will be denied. 60 A demurrer to a bill to reinstate an injunc- 
 tion having been overruled and the bill sustained, the court refused 
 to reinstate the injunction, which had been properly dissolved. It 
 was held no error, where the questions arising from the allegations 
 of the bill had never been presented before the court for hearing. 61 
 In England it is deemed irregular for the court, upon a defendant's 
 motion to dissolve an injunction obtained against him ex parte, 
 to grant a new injunction, and especially so if the new injunction 
 is not granted in the terms of the prayer of the bill. 62 Where an 
 injunction has been dissolved for want of equity in the bill, the 
 court will not grant an ex parte injunction upon an amended bill, 
 or upon a new bill supplying that equity. 63 
 
 58. Pendergest v. Heekin, 94 Ky. 61. Spencer v. Jones, 85 Va. 172, 
 384, 22 S. W. 605. 7 S. E. 180. 
 
 59. Elizabethtown, L. & B. S. R. 62. Burdett v. Hay, 4 DeG. J. & 
 Co. v. Ashland & C. St. Ry. Co., 94 S. 41. 
 
 Ky. 478, 22 S. W. 855. 63. Hornor v. Leeds, 10 N. J. Eq. 
 
 The decision of the court dis- 86, per chancellor: " If a complain- 
 
 solving an injunction is conclus- ant is willing to swear to a case fit- 
 
 ive between the same parties in ting the opinion of the court, the 
 
 that branch of the court on any rights of the defendant should not 
 
 application for its revival on the be interfered with upon such a bill 
 
 same state of facts ; or on a new state without affording the defendant an 
 
 of facts except upon leave first had opportunity first to be heard. Any 
 
 to apply a new. Banks v. American other practice would be oppressive." 
 Trust Co., 4 Sandf. Ch. (N. Y.) 438. 
 
 60. Mack v. De Bardelaben C. & 
 I. Co., 90 Ala. 396, 8 So. 150. 
 
 527
 
 § 345 Parties. 
 
 CHAPTER X. 
 
 Parties. 
 
 Section 345. Parties in interest — Generally. 
 
 346. Parties in interest — Bringing in — General rule. 
 346a. Bringing in of additional parties — Amendments. 
 
 347. Proper and necessary parties — Who are. 
 
 348. Same subject — Parties defendant. 
 348a. Same subject continued. 
 
 349. Standing as party through injunction. 
 
 350. United States as party. 
 
 351. State as party — Relators. 
 
 352. Same subject. 
 
 353. Same subject — Nuisances. 
 
 354. Cities and citizens. 
 
 355. Towns as parties. 
 
 356. Same subject — Abutting owners. 
 
 357. Attorney-general as plaintiff. 
 
 358. Corporations as parties. 
 
 359. Trustees — Receivers. 
 
 360. Sureties — Principals — Administrators. 
 
 361. Taxpayers as plaintiffs. 
 361a. Same subject continued. 
 
 362. Joinder of plaintiffs — Life tenants. 
 
 362a. Joinder of plaintiffs — Life tenants — Tenants in common. 
 
 363. Joinder of plaintiffs — Abutting owners, etc. 
 
 364. Misjoinder of plaintiffs. 
 
 365. One or more for all., 
 
 366. Injunctions against proceedings at law. 
 
 367. Same subject — Joining officers. 
 367a. Joining officers continued. 
 
 368. Joinder of defendants — Nuisance. 
 
 369. Same subject — Bills of peace. 
 
 370. Same subject — Frauds. 
 
 371. Joinder of patent owner as defendant where licensee sues. 
 
 372. Joinder of plaintiffs at law as defendants in equity. 
 
 373. Defect of parties defendant. 
 
 374. Dismissal for want of necessary parties. 
 
 § 345. Parties in interest; generally. — Parties in interest are 
 those legally or equitably interested in the subject matter or result 
 of- the suit, but they must have a present substantial interest as 
 
 528
 
 Paeties. § 340 
 
 distinguished from a mere expectancy. 1 Thus, on a creditor's bill 
 to set aside a deed of land to a trustee, in trust to collect and pay 
 rents to a married woman during her life, and at her death to con- 
 vey to her children, on the ground that the deed is in fraud of the 
 grantor's creditors, the children are not necessary parties, -but the 
 trustee represents their contingent interest, and a decree setting 
 aside the deed of trust is as binding on them as if they were parties. 2 
 And in an equitable action against a trustee, for an accounting, 
 a corporation to which the trustee has transferred trust property, 
 is not a necessary party to the action, where its title is not ques- 
 tioned and no relief is asked, nor any facts stated which would 
 warrant any relief. 3 In another case defendant, who was appointed 
 stenographer in a proceeding for the removal of plaintiff as judge, 
 afterwards, on application, had his fees taxed against plaintiff, 
 and judgment rendered against plaintiff therefor. Plaintiff sued 
 to restrain the execution of the judgment against him and it was 
 held, that plaintiff and defendant were the only necessary parties, 
 and that the relator, in the original proceeding against plaintiff, 
 was not a proper party to the suit, as he was not a party to the 
 rule to tax costs and had no interest in the judgment therein which 
 alone was enjoined. 4 
 
 § 346. Parties in interest; bringing in; general rule. — It is a 
 
 general rule that all persons should be made parties to a suit in 
 equity to obtain an injunction who are directly interested either 
 in obtaining or resisting the relief asked for in the complainant's 
 bill or granted in the decree. 5 It is, however, said that the courts 
 
 1. Green v. Grant, 143 111. 61, 73, itself having an interest in the elee- 
 32 N. E. 369. tion 9hould be made a party to the 
 
 2. Temple v. Scott, 143 111. 290, 32 bill. Krecker v. Shirey, 2 Penn. Dist. 
 N. E. 366; American Bible Society Reports, 24. 
 
 v. Price, 115 111. 644. 4. Lazarus v. McGuirk, 42 La. 
 
 3. Zebley v. Farmers Loan <fe Trust Ann. 194, 8 So. 253. 
 
 Co., 139 N. Y. 461, 34 N. E. 1067. 5. United States.— Consolidated 
 
 In a bill in equity for an injunction Water Co. v. City of San Diego, 93 
 
 against the officers of an incorpor- Fed. 849, 35 C. C. A. 631. 
 
 ated church, praying for their remo- Georgia. — Miller v. McDonald, 72 
 
 val, and asking for a new election Ga. 20. 
 
 to fill the vacancies, the corporation Illinois. — Lussen v. Sanitary Dis- 
 
 529 
 34
 
 §346 
 
 Parties. 
 
 are not inclined to favor this procedure when it is postponed to the 
 hearing in the appellate court and that it will not be listened to 
 
 trict, 192 111. 404, 61 N. E. 544; Tem- 
 ple v. Scott, 143 111. 290, 32 N. E. 
 366; Hopkins v. Roseclare Lead Co., 
 72 111. 373. 
 
 Kansas. — Jeffries-Ba-Som v. Na- 
 tion, 63 Kan. 247, 65 Pac. 226; 
 Union Terminal R. R. Co. v. Board 
 of Commissioners, 52 Kan. 680, 35 
 Pac. 224; Leroy Coal & M. Co. v. 
 Crowl, 3 Kan. App. 288, 45 Pac. 132. 
 
 Mississippi. — Lemmon v. Dunn, 61 
 Miss. 210. 
 
 New Jersey. — Butcher v. City of 
 Camden, 29 N. J. Eq. 478. 
 
 New York. — National Park Bank 
 v. Goddard, 131 N. Y. 494, 30 N. E. 
 566; New York Bank Note Co. v. 
 Hamilton Bank Note E. & P. Co., 
 83 Hun, 593, 31 N. Y. Supp. 1060; 
 Lawyer v. Cipperly, 7 Paige Ch. 281. 
 See Shepard v. Manhattan Ry. Co., 
 117 N. Y. 442, 23 N. E. 30; Standard 
 Fashion Co. v. Siegel Cooper Co., 30 
 App. Div. 564, 52 N. Y. Supp. 433. 
 
 North Carolina. — Oliver v. Dix, 21 
 N. C. 158. 
 
 West Virginia. — Colwell v. Prin- 
 dle's Adm'r, 11 W.Va. 307. 
 
 It is said by the United States Su- 
 preme Court : " The general rule in 
 equity is that all persons materially 
 interested, either legally or bene- 
 ficially, in the subject matter of a 
 suit are to be made parties to it, so 
 that there may be a complete decree 
 which shall bind them all. By this 
 means the court is enabled to make 
 a complete decree between the par- 
 ties, to prevent future litigation, by 
 taking away the necessity of a mul- 
 tiplicity of suits, and to make it per- 
 fectly certain that no injustice is 
 done either to the parties before it, 
 or to others who are interested in 
 
 the subject matter, by a decree which 
 might otherwise be granted upon a 
 partial view only of the real merits." 
 Minnesota v. Northern Securities Co., 
 184 U. S. 199, 235, 46 L. Ed. 499, 22 
 S. Ct. 308. Per Mr. Justice Shiras. 
 
 " It is the duty of complain- 
 ant to see and know that he has be- 
 fore the court all necessary parties, 
 or his decree will not be binding. It 
 is the policy of the law to prevent a 
 multiplicity of suits, and where the 
 rights of all persons may be settled 
 in one proceeding, the parties should 
 not be harrassed by other proceed- 
 ings." Hopkins v. Roseclare Lead 
 Co., 72 111. 373. Per Walker, J. 
 
 In an action to perpetually 
 enjoin a city and its officers and 
 certain county officers from levying 
 or collecting any taxes to pay inter- 
 est on certain city bonds, and to have 
 the bonds declared null and void, the 
 bondholders are necessary parties, 
 and the action cannot be maintained 
 without making them parties. City 
 of Anthony v. State, 49 Kan. 246, 30 
 Pac. 488. 
 
 Where an action is brought to 
 enjoin the auditor of state from 
 issuing a certificate of indebtedness 
 on claims issued by the State to 
 L., and to compel the auditor to issue 
 two certificates therefor, one to plain- 
 tiff and one to L., and L. is made a 
 party defendant, but no service is 
 made, and no appearance is entered 
 by him, the court cannot render a 
 final judgment in the action until L. 
 is properly summoned, or appears. 
 McCarthy v. Marsh, 41 Kan. 17, 20 
 Pac. 479. See, also, Cassatt v. 
 Com'rs, 39 Kan. 505, 18 Pac. 517. 
 Parties to actions on injunc- 
 
 530
 
 Pakties. § 346a 
 
 if there are sufficient parties before the court who are amenable 
 to its decree to enable the court to award a substantial remedy. 6 
 
 § 346a. Bringing in of additional parties ; amendments. — 
 According to the practice in some States at any time in the progress 
 of a suit in equity, any person whose presence in the suit is neces- 
 sary to a full and final adjudication of the rights of the parties, 
 and to a complete determination of the controversy between them, 
 may be brought in as a party on motion of the plaintiff, or by the 
 court on its own motion. 7 So where a son having the same name 
 as his father, is by mistake made a defendant and enjoined instead 
 of the father, it is proper to amend the complaint and summons 
 by bringing in the representatives of the father, who had died 
 before the action was begun, and continuing the injunction as 
 against them. 8 And where one of two defendants to a bill in equity 
 prayed an injunction against complainant and subsequently died, 
 and his death was stated, and an amendment made alleging its 
 consequences, it was held to be error for the court to grant an 
 injunction without making his representative a party. 9 Again, 
 where one of the objects of a bill is to enjoin a judgment recovered 
 by the indorsee of a note, the indorsee is a necessary party, and 
 if he die pending the suit, it should be revived against his personal 
 representative. 10 Necessary parties to a bill may also be brought 
 in by amendment after an injunction has been granted. 11 But 
 while it is proper to make an order permitting a summons and com- 
 plaint to be amended by bringing in additional parties as defend- 
 
 tion bonds have been considered in 10. Eldridge v. Turner, 11 Ala. 
 
 chapter V. See §§ 184, 184a, 185, 1049. 
 
 herein. 11. Mayer v. Coley, 80 Ga. 207, 7 
 
 6. Peoples Teleph. & Teleg. Co. v. S. E. 164, per Bleckley, C. J.: "The 
 East Tenn. Teleph. Co., 103 Fed. 212, only parties defendant to the bill are 
 43 C. C. A. 185. See, also, Turpin v. Mayer and Ullman. No doubt Cooley 
 Dennis, 139 111. 274, 28 N. E. 265. is a necessary party; and both the 
 
 7. N. Y. Code Civ. Pro., § 452; maker of the bond for titles and the 
 Pond v. Harwood, 139 N. Y. Ill, 34 mortgagor are proper if not neces- 
 N. E. 768. sary parties to the bill, but all thess 
 
 8. Bergmann v. Salmon, 69 Hun, can be added by amendment and 
 295, 23 N. Y. Supp. 482. doubtless will be before the hearing 
 
 9. Miller v. McDonald, 72 Ga. 20. of the case for final decree." 
 
 531
 
 § 347 Pabties. 
 
 ants, yet it is held to be error to direct that the undertaking shall 
 stand as security for the new defendants. 12 
 
 § 347. Proper and necessary parties ; who are. — A life tenant 
 may properly bring an action to restrain the opening, by a town, 
 of streets through the premises without a compliance with the 
 statute in regard thereto, 13 or to restrain a nuisance. 138. And to en- 
 join the maintenance of a ferry within a certain distance of an estab- 
 lished ferry in violation of a statute the action may be properly 
 brought by one who is a tenant in common and in sole possession 
 of the latter ferry. 14 An insurer of a damaged cargo may also 
 properly maintain a suit to restrain the master and agents from 
 selling the same. 15 And an owner of any estate as well as the 
 owner of the dominant tenement may invoke the aid of a court 
 of equity to enforce the easement in the servient tenement. 16 And 
 it has been decided that a suit for an injunction may be main- 
 tained by minors. 17 And generally it is decided that in an action 
 which seeks to enjoin the payment of illegal allowances by a public 
 board it is proper to make such persons parties as it is needful to 
 hear or restrain. 18 So in a suit by the holder of bonds of a water 
 company to restrain a municipality from fixing the rates the com- 
 pany, which is under contract to supply water to the municipality 
 is a necessary party. 19 Again, the fact that a person has a pending 
 petition to be made a party to a prior cause in equity, and another 
 pending petition to set aside the decree in such prior cause, does 
 not estop him from filing his own bill to recover proceeds of the 
 decree from one of the prevailing parties, and in the meantime, to 
 enjoin the execution of the decree so as to hold up such proceeds 
 
 12. Bergmann v. Salmon, 69 Hun 15. Insurance Co. v. Svendson, 77 
 (N. Y.), 293. Fed. 220. 
 
 13. Jarvis v. Grafton, 44 W. Va. 16. Brouwer v. Jones, 23 Barb. 
 453, 30 S. E. 178. (N. Y.) 153. 
 
 13a. Lowe v. Prospect Hill Cem. 17. Alspaugh v. Adams, 80 Ga. 
 
 Assn., 58 Neb. 94. 78 N. W. 488. 46 345, 5 S. E. 496. 
 
 L. B. A. 237. !8. McCrea v. Chaboon, 54 Hun 
 
 14. Fortain v. Smith, 114 Cal. (N. Y.), 577, 8 N. Y. Supp. 88. 
 494, 46 Pac. 381. See Davis v. Con- 19. Consolidated Water Co. v. 
 nolly, 20 Ky. Law Rep. 411, 46 S. San Diego, 93 Fed. 849, 35 C. C. A. 
 W. 679. 631. 
 
 532
 
 Pasties. § 348 
 
 to abide the result of the latter bill. 20 But persons having no inter- 
 est in the controversy, although they are general partners of the 
 plaintiff, cannot properly be made parties plaintiff. 21 And persons 
 who have acquired from the defendants a knowledge of a secret 
 invention for which the plaintiff claims protection, are not neces- 
 sary parties. 22 
 
 § 348. Same subject; parties defendant. — In an action to 
 enjoin the collection of a replevin bond, executed in satisfaction 
 of a judgment rendered in favor of the commonwealth for a fine, 
 it is decided in Kentucky that the county attorney, the common- 
 wealth's attorney, the circuit court clerk and sheriff are proper 
 parties defendant, because the attorneys have an interest in the 
 fine, and to prevent the enforcement of the fine, the clerk who issues 
 the execution and the sheriff into whose hands it goes, are necessary 
 parties. 23 In an action to restrain defendant from working for a 
 certain firm, or for any other person or corporation, in violation 
 of a contract to render services to plaintiff, it appeared that he had 
 entered into a subsequent contract with the firm named, and it has 
 been held that the persons composing that firm had an interest in 
 the controversy and in the subject thereof, within the meaning 
 of a Code provision that " where a person, not a party to the action, 
 has an interest in the subject thereof, and makes application to 
 the court to be made a party, it must direct him to be brought in 
 by proper amendment," and were entitled to be made parties de- 
 
 20. Alspaugh v. Adams, 80 Ga. 103. 
 
 345, 5 S. E. 496. A city which has agreed, in con- 
 
 21. Hammer v. Barnes, 26 How. sideration of a right of way granted 
 Prac. (N. Y.) 174. for its water pipes, to allow a 
 
 22. Hammer v. Barnes, 26 How. landowner the use of two hydrants. 
 Prac. (N. Y.) 174. is a proper party defendant to a bill 
 
 2,3. Bramlett v. McVey, 91 Ky. to enjoin the purchaser of the water- 
 
 151 15 S. W. 49. works from interfering with such 
 
 Where the issuing of municipal use. Brown v. City of Frankfort, 10 
 bonds is enjoined, the persons to Ky. Law. 462, 9 S. W. 384, 702. 
 whom the bonds are to be issued are The wife of a defendant is not a 
 parties in interest, and must be proper party defendant, where no re- 
 joined. Hutchinson v. Burr, 12 Cal. lief or remedy is asked against her or 
 
 533
 
 §348 
 
 Parties. 
 
 fendant to the action. 24 And in such cases, where an employee who 
 is charged with violating a restrictive covenant, is enjoined, it has 
 been the more common practice, both in this country and in 
 England, to make those who may be injuriously affected by the 
 injunction, parties defendant, so that they may have an oppor- 
 tunity to be heard and to have their rights adjudicated in the same 
 suit. 25 Again, an injunction may be granted against a defendant, 
 as to whom there is ground for separate and independent relief, 
 though not warranted, for want of equity, as to his co-defendants. 26 
 And though one of several defendants may be designated in an 
 action by a fictitious name, yet his real name must be discovered 
 and substituted in the place of the fictitious, in order that an in- 
 junction in the suit may be operative against him. 27 A person 
 becomes a defendant in an action for an injunction, by filing a 
 
 her property. McMullen v. Ritchie. 
 57 Fed. 104. 
 
 24. Strobridge Lithographing Co. 
 v. Crane, 58 Hun, 611, 12 N. Y. Supp. 
 834, construing section 452, Code of 
 Civ. Proc. See, also, Pond v. Har- 
 wood, 139 N. Y. Ill, 34 N. E. 768, 
 34 N. E. 768. Gen. St. Conn., § 887, 
 provides that where a person not a 
 party has an interest affected by a 
 judgment, the court, on application, 
 shall make him a party. Section 1288 
 provides that any one affected by an 
 injunction may be heard with regard 
 to granting or dissolving the same. 
 Held, that a bondholder of a street 
 railroad company, which has insti- 
 tuted proceedings to dissolve an in- 
 junction forbidding it to lay tracks 
 in a street, is not entitled to be made 
 a party, it not appearing that he 
 could be of any assistance in defense 
 of the company's rights, or that the 
 company is not in good faith defend- 
 ing its franchise. In re Ferris, 56 
 Conn. 396, 15 Atl. 751. 
 
 25. DePol v. Sohlke. 7 Robt. (N. 
 Y.) 280; Fredericks v. Mayer, 1 
 
 Bosw. (N. Y.) 277; Hamblin v. Din- 
 neford, 2 Edw. Ch. 529; Burton v. 
 Marshall, 4 Gill, 487; Lumley v. 
 Wagner, 1 DeG., M. & G. 604 ; Clarke 
 v. Price, 2 Wils. Ch. 157. The prac- 
 tice is not, however, universal. Mc- 
 Caull v. Braham, 16 Fed. 37; Daly v. 
 Smith, 49 How. Pr. 150. 
 
 26. Alspaugh v. Adams, 80 Ga. 
 345, 5 S. E. 496. 
 
 27. Where the complaint alleged 
 that plaintiff was ignorant of the 
 true names of two of the defendants, 
 designated as John Doe and Richard 
 Roe, and asked that their real names 
 might be substituted when discov- 
 ered, and the record merely showed 
 that " defendants " answered, but did 
 not show that the true names of 
 these two defendants were discovered, 
 and there was no amendment of the 
 pleadings by substitution of other 
 names for the fictitious ones, it was 
 held that an injunction granted in 
 the action was operative only against 
 the defendants designated by their 
 real names. Moulton v. Parks, 64 
 Cal. 166, 30 Pac. 613. 
 
 534
 
 Parties. § 348a 
 
 special demurrer therein, on the ground that he has not been made 
 a party, or by filing his answer to the bill. 28 
 
 § 348a. Same subject continued. — In a case where one seeks to 
 overthrow a common right and establish his right against all claim- 
 ants, all parties asserting the common right may be united as 
 defendants. 29 So in an action to restrain defendants from floating 
 logs in the waters of a stream running across plaintiff's land, it 
 is decided that all parties who assert a common right to do so may 
 properly be joined as defendants. 30 Again, where the object of a 
 suit is single and it is shown that some one or more of the defend- 
 ants have interests in distinct questions growing out of the suit, 
 such defendants are necessary parties in order to conclude the 
 entire matter. 31 And it is proper and necessary that the lessor 
 as well as the lessee should be made parties to a suit to enjoin a 
 nuisance. 32 The election officers are also necessary parties to a 
 suit to restrain a city from paying the expenses of conducting a 
 municipal election. 33 And where an injunction is sought to pre- 
 vent the location of a public road through private property without 
 prior compliance with the requirements of law it is proper to join 
 as defendants the County Court or other tribunal, charged with the 
 establishment and maintenance of public roads, the surveyor of the 
 roads of the proper road precinct, and the road contractor. 34 Again, 
 in a recent case in Massachusetts it is decided that the proper 
 method of bringing unincorporated labor unions before the court is 
 
 28. Where, in a suit by the teach- Underwood v. Wood, 93 Ky. 177, 19 
 
 ers of a common school, to enjoin the S. W. 405. 
 
 superintendent from paying a pro- 29. Meyer v. Phillips, 97 N. Y. 
 
 portion of the school fund to the 485, 49 Am. Rep. 538. 
 
 teachers of a private school, the su- 30. Meyer v. Phillips, 97 N. Y. 
 
 perintendent files an affidavit offering 485, 49 Am. Rep. 538. 
 
 to pay the fund as the court may 31. Brown v. Solary, 37 Fla. 102, 
 
 direct, and the court orders the 19 So. 161. 
 
 teachers of the private school to as- 32. O'Sullivan v. New York Ele. 
 
 sert their claim, the latter, by filing R. Co., 7 N. Y. Supp. 51. 
 
 special and general demurrers to the 33. Bingham v. Camden, 29 N. J. 
 
 petition for want of proper parties, Eq. 464. 
 
 and by answering, become parties. 34. Wenger v. Fisher, 55 W. Va. 
 
 535
 
 §§ 349, 350 Parties. 
 
 to join as parties defendant persons who are alleged to be and are 
 proper representatives of the class, describing the class to which 
 the members belong. 35 But in an action against a public official 
 to restrain him from revoking a license one who has no relation to 
 or interest in the litigation except as a private citizen is not a 
 necessary party and is not entitled to become a party defendant. 36 
 
 § 349. Standing as party through injunction — A patentee has 
 no standing in court to maintain a bill in equity for a naked 
 account of profits and damages against an infringer of a patent, 
 unless such relief is incidental to some other equity; but if he 
 has secured his standing as a plaintiff in equity by showing that 
 he is entitled to injunctive relief, the court can proceed to afford 
 the incidental relief and assess the damages which the complain- 
 ant has suffered in excess of the profits which the defendant has 
 made by his infringement. And it is not material whether these 
 damages are unliquidated, and to be assessed by the court, or 
 whether they are called a penalty, provided the Legislature has 
 expressly empowered the court of equity, in a bill brought within 
 its jurisdiction for preventive remedies, to afford such additional 
 and incidental relief. 37 
 
 § 350. United States as party.— The United States may apply 
 to a court of equity for an injunction to protect its property from 
 irreparable injury, and may perhaps ask for injunctive relief 
 " against injuries which cannot be measured in money," in matters 
 relating to the general welfare, and in which the supervisory power 
 
 13, 46 S. E. 695. Compare Allen v. 454, 15 L. Ed. 155; Stevens v. Cady, 
 
 Smith (Tenn.), 47 S. W. 206. 2 Curt. 200. On the apportionment f 
 
 35. Reynolds v. Davis (Mass. of defendant's profits and plaintiff's! 
 1908). 84 N. E. 457. damages between the patented and) 
 
 36. Hapgoods v. Bogart (N. Y. unpatented features, see Garretson v. ? 
 App. Div. 1908), 109 N. Y. Supp. 537. Clark, 111 U. S. 120, 4 S. Ct. 291, 28 
 
 37. Untermeyer v. Freund, 58 L. Ed. 371; Dobson v. Carpet Corn- 
 Fed. 205, 7 C. C. A. 183. This sub- pany, 114 U. S. 439, 5 S. Ct. 945, 29 
 ject was generally considered in L. Ed. 177; Gould's Mfg. Co. v. Cow- 
 Stevens v. Gladding, 17 How. (U. S.) ing, 105 U. S. 253, 26 L. Ed. 987. 
 
 530
 
 Parties. 
 
 §350 
 
 of the government may be properly exercised. 38 The United States 
 may bring suit to prevent an interference with interstate and 
 foreign commerce under the Act of Congress of 1890, to protect 
 
 38. United States v. World's, etc., 
 Exposition, 56 Fed. 630. 639, per 
 Woods, J.: "The next question is 
 of the right of the government to 
 seek relief in a court of equity. It 
 results from what I have already 
 said, if my views are right, that there 
 is no want of equity in the govern- 
 ment's case. The government has suf- 
 ficient interests at stake, because it 
 has possession of the grounds, has 
 property there, and has pecuniary in- 
 terests in imported goods subject to 
 duty, and also indirectly in the gate 
 receipts and income from all sources; 
 and, besides, is under the highest ob- 
 ligations of honor and law to protect 
 the property and interests of foreign 
 nations and of the several States of 
 the Union, and of all exhibitors 
 brought there upon its invitation. 
 Every open day brings its risks of 
 loss by fire, theft, fraud and the cer- 
 tainty of additional expense. Having 
 such possession and interests and obli- 
 gations, and having no other means of 
 enforcing obedience to its regulations, 
 the government is entitled to the as- 
 sistance of the court. Pecuniary in- 
 terests, sufficient to warrant an ap- 
 peal to equity, are plain enough, and 
 it is not material to the question of 
 jurisdiction — it is not for the court to 
 inquire — whether those interests are 
 likely to be affected advantageously or 
 disadvantageously by the unlawful 
 conduct which it is sought to enjoin. 
 There are other rights and interests 
 quite as sacred as dollars, and equity 
 protects against injuries which cannot 
 be measured in money. The case of 
 United States v. W. U. Tel. Co., 50 
 Fed. 28, affords an instructive illus- 
 
 tration. The suit was to cancel an 
 agreement between that company and 
 the Union Pacific Railway Company, 
 whereby the telegraphic franchise of 
 the railway company was improperly 
 transferred to the telegraph company, 
 and to compel the railway company, 
 in obedience to its charter, to exercise 
 that franchise directly through its 
 own officers and employes. It was in- 
 sisted in argument, and was conceded 
 by the court, that the contract was 
 pecuniarily beneficial to the railway, 
 and also to the government, as second 
 mortgagee of the company's prop- 
 erty; but the court, by Justice 
 Brewer, said : ' The government is, 
 it is true, pecuniarily interested as 
 second mortgagee; but a higher in- 
 terest is that the administration of 
 its franchises should redound to the 
 general welfare, and not merely to 
 the pecuniary interest, of its grantee, 
 or even of itself. The dollar is not 
 always the test of the real interest. 
 It may properly be sacrificed if any- 
 thing of higher value be thereby at- 
 tained But whether the dollar be 
 gained or lost is not, in a matter of 
 this kind, a question for the courts. 
 It is for the legislative branch, as 
 representative of the popular will, to 
 settle all such questions. Given power 
 to act in the Legislature, and its 
 mandatory action, the simple province 
 of the courts is to enforce such man- 
 date; and they have no revisory de- 
 termination as to the wisdom or folly 
 of the commanded act. 
 Neither can there be any question in 
 this case of the right of the govern- 
 ment to maintain this bill. It was 
 the creator of the railway corpora- 
 
 537
 
 350 
 
 Parties. 
 
 trade and commerce against unlawful restraint and monopolies. 39 
 And trespasses upon the public lands of the United States may 
 be enjoined at the suit of the government, 40 and so may injury to 
 the navigable waters of the United States from works carried on 
 by State authority, where the charge of such injury is not satis- 
 
 tion defendant, and a large contribu- 
 tor to its finances. It made abso- 
 lutely a large grant of lands. It 
 loaned its own bonds, and holds to- 
 day a second mortgage. By reason 
 of its governmental duty to regulate 
 the affairs of this corporation, and 
 also its pecuniary interest in their 
 successful management, it may prop- 
 erly legislate in respect thereto, and 
 invoke the aid of the court to com- 
 pel compliance with its determina- 
 tion. And when it is the complain- 
 ant the inquiry is different and 
 broader than when the corporations 
 themselves are the contesting parties, 
 or when only individuals are chal- 
 lenging their action. The supervisory 
 power of the government is plenary, 
 and its commands to its corporate 
 creations must be enforced, unless 
 they trespass upon some vested 
 rights of property. ... It is 
 urged that if a duty is cast upon 
 these corporations, it must be en- 
 forced by mandamus. ... A 
 court of equity, with its flexible pro- 
 cedure, can alone meet all the exi- 
 gencies. The jurisdiction of such a 
 court seems to me necessary and un- 
 questionable.' The right of the gov- 
 ernment to maintain a bill in equity 
 on the ground of obligation or duty 
 either to an individual or to the pub- 
 lic, when it had no pecuniary inter- 
 est, has been affirmed in several in- 
 stances by the Supreme Court. United 
 States v. San Jacinto Tin Co., 125 U. 
 S. 273, 31 L. Ed. 747, 8 Sup. Ct. Rep. 
 850; United States v. Beebe, 127 U. 
 
 S. 338, 32 L. Ed. 121, 8 Sup. Ct. Rep. 
 1083; United States v. Marshall Sil- 
 ver Min. Co., 129 U. S. 579, 32 L. 
 Ed. 734, 9 Sup. Ct. Rep. 343; Curtner 
 v. United States, 149 U. S. 662, 37 L. 
 Ed. 890, 13 Sup. Ct. Rep. 985, 1041." 
 
 39. In United States v. Working- 
 men's, etc., Council, 54 Fed. 994, the 
 district attorney for the eastern dis- 
 trict of Louisiana, acting under the 
 direction of the attorney general and 
 in the name of the United States, ex- 
 hibited in the Circuit Court for said 
 district a bill for injunction u.'ider 
 the Act of Congress, 26 U. S. Stat. 
 209; and the order of the Circuit 
 Court granting the injunction was af- 
 firmed by the Circuit Court of Ap- 
 peals. Workingmen's, etc., Council 
 v. United States, 57 Fed. 85. Where 
 the creditor of a steamship company 
 was proceeding to sell its steamers 
 under an execution issued by a State 
 court, the United States applied for 
 an injunction to restrain the sale on 
 the ground that it had liens on the 
 steamers, it was held that the rights 
 of the creditors were superior to those 
 of the government so far at least as 
 to allow them to sell the vessels sub- 
 ject to the lien of the government, 
 and the injunction was denied 
 United States v. Collins, 4 Blatchf. 
 142. 
 
 40. United States v. Brighton 
 Ranche Co., 25 Fed. 465, 26 Fed. 218. 
 But in an action brought in the name 
 of the United States to repeal letters 
 patent, a temporary injunction will 
 not be granted to restrain defendant 
 
 538
 
 Parties. 
 
 §351 
 
 factorily refuted by the defendant. 41 Though a court of equity 
 cannot directly restrain the government of the United States, a 
 department of the government and its agents may be restrained 
 from executing an act of Congress in an unconstitutional man- 
 ner, as, for instance, from taking private property without com- 
 pensation. 42 The United States cannot be perpetually enjoined 
 from proceeding under a judgment in its favor, but a Federal 
 Circuit Court has jurisdiction to direct credits to be given on the 
 judgment and to stay execution until an investigation relating 
 thereto shall be made. 43 
 
 §351. State as party; relators. — While, as before seen, an 
 injunction will not be granted in matters of purely public concern 
 at the instance of a private person only, 44 but must be applied for 
 by the Attorney-General, yet if that officer, upon being requested 
 to move in a matter strictly publici juris, refuses or unreasonably 
 delays to do so, an injunction may, upon leave of court, be applied 
 for upon the relation of a private person in the name of the State. 
 
 from prosecuting actions for in- 
 fringement, as the government ha3 
 no interest in such actions. United 
 States v. Colgate, 22 Blatchf. 412. 
 Digging lead ore from the public 
 lands of the United States may be en- 
 joined at the instance of the United 
 States. United States v. Gear, 3 How. 
 (U. S.) 121, 11 L. Ed. 523. 
 
 41. United States v. Duluth, 1 
 Dillon, 469. In United States v. Mis- 
 sissippi, etc., Boom Co., 1 McCrary, 
 601, an injunction was granted to re- 
 strain a threatened injury to im- 
 provements made in a river, over 
 which Congress had assumed jurisdic- 
 tion in the interest of commerce. 
 
 42. Avery v. Fox, 1 Abb. U. S. 246. 
 
 43. United States v. McLemore, 4 
 How. (U. S.) 286, 11 L. Ed. 977. 
 
 44. Section 13, ante. A suit to en- 
 join the sale of and injury to a pub- 
 lic park by a city cannot be main- 
 
 tained by individuals, who suffer only 
 in common with the rest of the public, 
 but must be brought by a duly au- 
 thorized public officer. Mowry v. City 
 of Providence, 16 R. I. 422, 16 Atl. 
 511. 
 
 45. State ex rel. Lamb v. Cun- 
 ningham, 83 Wis. 90, 53 N. W. 35, 
 which was a suit to enjoin the secre- 
 tary of State from giving notices of 
 the election of members of the Senate 
 and Assembly under the Apportion- 
 ment Act of L. 1891, ch. 482, on the 
 ground that the act made an appor- 
 tionment in violation of the Consti- 
 tution. The attorney general hav- 
 ing refused to act in the injunction 
 suit, the injunction was granted in 
 the name of the State on the rela- 
 tion of a private citizen. And see 
 State ex rel. Atty. Gen. v. Cunning- 
 ham, 81 Wis. 440, 51 N. W. 724, 
 where it is held that in matters of 
 
 539
 
 § 351 Partiks. 
 
 And in an action brought by the Attorney-General in the name of 
 the State on the relation of a citizen and a taxpayer to restrain 
 the Secretary of State from drawing certain warrants upon the 
 State Treasurer in favor of the State Superintendent, it is Dot 
 necessary that the relator should have any special or peculiar 
 interest in the subject matter. 46 And in matters of purely public 
 right an action for an injunction may be maintained in the name 
 of the State upon the relation of the Attorney-General without the 
 intervention of a private relator. 47 So where the operations of a 
 corporation are being conducted under a plan which is in contra- 
 vention of public policy a suit for an injunction restraining its 
 officers from so continuing its operations may be brought by the 
 State through its Attorney-General. 48 And a State may prosecute 
 a proceeding for an injunction whether it has any pecuniary in- 
 terest in the matter or not where the act sought to be enjoined 
 is one resulting in injury to the general welfare. 49 So acts of 
 public officials which are illegal and unauthorized are the proper 
 subjects of preventive jurisdiction of equity and such acts may 
 be restrained in a suit brought in the name of the State by the 
 county attorney of the county in which the acts are to be done. 50 
 But the people of a State not being interested in the question 
 whether the taxable inhabitants of a certain town should issue 
 bonds of that town to aid in the construction of a railroad it is 
 decided that a proceeding to restrain the issuance of such bonds 
 
 public right in which no citizen has Wis. 115; State ex rel. Atty. Gen. v. 
 
 any right or interest other than that Conklin, 34 Wis. 21; State ex rel. 
 
 which is common to all, a petition by Atty. Gen. v. O'Neill, 24 Wis. 152; 
 
 a private person for leave to com- State ex rel. Atty. Gen. v. Merrill, 2 
 
 mence an action in the name of the Pin. (Wis.) 279. 
 
 State will not be considered until the 48. State v. New Orleans Debent- 
 
 attorney general has been requested ure R. Co., 51 La. Ann. 1827, 26 So. 
 
 to move and has refused. 586. 
 
 46. State ex rel. Raymer v. Cun- 49. State v. Zachritz, 166 Mo. 307, 
 ningham, 82 Wis. 39, 51 N. W. 1133. 65 S. W. 999, 89 Am. St. Rep. 711. 
 
 47. State ex rel. Atty. Gen. v. Cun- 50. State v. Commissioners of 
 ningham, 81 Wis. 440, 51 N. W. 724; Marion County, 21 Kan. 419. See, 
 and see the analagous cases of State also, State v. Kansas City, 60 Kan. 
 ex rel. Atty. Gen. v. Messmore, 14 518, 57 Pac. 118. 
 
 540
 
 Pabties. 
 
 §352 
 
 cannot be maintained in the name of the people by their attorney. 51 
 So as the State has no legal or equitable interest in the issue of 
 county bonds to pay for a county subscription to stock of a railroad 
 company, it is not a proper party plaintiff to an injunction bill 
 to restrain the County Court from issuing the bonds. 52 
 
 § 352. Same subject. — A private citizen cannot maintain an 
 injunction to protect a public right, unless he has been made the 
 representative of that right. 53 So an action to enjoin proceedings 
 for the organization of a new town cannot be maintained by per- 
 sons having no other interest than one common to all the free- 
 holders of the proposed town. The proceeding, if void, can be 
 enjoined only at the suit of the State or some duly authorized 
 public officer, and a private person cannot restrain it, unless it 
 involves some peculiar damage to his individual interests. 54 So 
 one who is entitled to build and has built wharves and warehouses 
 
 51. People v. Clark, 53 Barb. (N. 
 Y.) 171. But compare State v. Kan- 
 sas City, 60 Kan. 518, 57 Pac. 118. 
 
 52. State v. Platte County Court 
 et al., 32 Mo. 496. 
 
 53. In Adler v. Metropolitan El. 
 R. Co., 138 N. Y. 173, 33 N. E. 935, 
 it was held that, assuming a certain 
 iron pillar and a portion of a certain 
 station of the elevated road were lo- 
 cated on the street without author- 
 ity, and were an infringement upon 
 the public right in the street, yet 
 that plaintiff was not the represen- 
 tative of that right, and could not, in 
 his capacity as a citizen merely, 
 maintain an injunction to prevent 
 such occupation of the street by the 
 defendant company; and that he 
 could not maintain it as an owner of 
 adjacent property, as it appeared he 
 had no interest in the soil occupied 
 by the station, and it was not shown 
 that he had sustained any distinct or 
 separate injury by reason of the en- 
 
 croachment. In support of the de- 
 cision Andrews, C. J., cited Lansing 
 v. Smith, 8 Cow. 146; Doolittle v. 
 Supervisors, 18 N. Y. 155; Fort Plain 
 Bridge Co. v. Smith, 30 N. Y. 44. 
 
 Violation of public duty by 
 public officers must be enjoined by 
 the proper public officer, on behalf 
 of the State, and not by a private 
 person. Seager v. Kankakee Co., 102 
 111. 669. 
 
 54. Doolittle v. Broome County 
 Supervisors, 18 N. Y. 155. In his 
 opinion in this case Denio, J., exam- 
 ined the following cases in the Su- 
 preme Court: Adriance v. Mayor, 1 
 Barb. 19; Brower v. Mayor, 3 Barb. 
 254; Christopher v. Mayor, 13 Barb. 
 567; Milhau v. Sharp, 15 Barb. 193; 
 Stuyvesant v. Pearsall, 15 Barb. 244; 
 DeBaun v. Mayor, 16 Barb. 392, and 
 criticised them as overlooking the 
 distinction between individual and 
 public remedies. A company cannot 
 enjoin another company and a board 
 
 541
 
 §353 
 
 Parties. 
 
 on the tide lands of the State, cannot maintain an injunction 
 against an adjoining trespasser on the tide lands if, notwithstand- 
 ing the trespass, he still has access to his wharves. 55 
 
 § 353. Same subject; nuisances. — When an act complained of 
 or apprehended is, besides being a public nuisance, specially 
 injurious to a private person, he may maintain an action for an 
 injunction in his own name ; but, in this class of cases, there is 
 sometimes difficulty in determining whether the act is or not 
 specially injurious to the plaintiff. 56 The rule, inversely stated, is 
 that in the case of a public nuisance an individual cannot have an 
 
 appointed to let public contracts for 
 the State from proceeding under a 
 contract for binding State documents, 
 awarded by the board to the latter 
 company, where the suit is not 
 brought in behalf of the State; such 
 contracts, and the laws prescribing 
 how they shall be let, being intended 
 to protect public interests and not 
 those of individuals, as such. Arkan- 
 sas Democrat Co. v. Press Printing 
 Co., 57 Ark. 322, 21 S. W. 586. 
 
 55. Morse v. O'Connell, 7 Wash. 
 117, 34 Pac. 426. As to the power of 
 the State to control her tide lands, 
 subject only to the paramount au- 
 thority of Congress to regulate navi- 
 gation and commerce, see Hardin v. 
 Jordan, 140 U. S. 371, 11 S. Ct. 808, 
 838; Manchester v. Massachusetts, 
 139 U. S. 240, 11 S. Ct. 559; Bowlby 
 v. Shively, 22 Oreg. 410, 30 Pac. 154; 
 Eisenbach v. Hatfield, 2 Wash. St. 
 236, 26 Pac. 539; Stevens v. Rail- 
 road Co., 34 N. J. L. 533. 
 
 56. Where a railroad is con- 
 structed in a highway without au- 
 thority, it is a public nuisance, be- 
 cause an invasion of the public ease- 
 ment; but in such a case an injunc- 
 tion will not be granted in favor of 
 
 the owner of the fee in the highway, 
 unless he suffers some special injury 
 distinct from that suffered by the 
 public. Van Home v. Newark Pass. 
 R. Co., 48 N. J. Eq. 332, 21 Atl. 1034; 
 Perkins v. Moorestown & C. Turnpike 
 Co., 48 N. J. Eq. 499, 22 Atl. 180. 
 In Spencer v. London, etc., R. Co., 8 
 Simons, 193, the bill for injunction 
 was sustained where the act com- 
 plained of was the obstructing of a 
 street through which plaintiff' had to 
 pass from his stable to his place of 
 business; in Corning v. Lowerre, 6 
 Johns. Ch. 439, the injunction was 
 granted to prevent the obstructing of 
 a paved street on which the plaintiff 
 owned lots; in Sampson v. Smith, 8 
 Simons, 272, the act enjoined by the 
 plaintiff was the filling the street 
 near the plaintiff's draper shop with 
 smoke and soot from a steam engine 
 which the defendant used on the op- 
 posite side of the street. And see 
 Crowder v. Tinkler, 19 Ves. 617. An 
 abutting owner may enjoin a nui- 
 sance which, from the location of his 
 premises, will render it specially in- 
 jurious to him. Davis v. Mayor, 14 
 N. Y. 506; Doolittle v. Supervisors, 
 18 N. Y. 155 r 163, per Denio, J. 
 
 542
 
 Parties. 
 
 §354 
 
 injunction unless he avers and proves some special injury, 57 and 
 he cannot bring a suit in the name of the State to enjoin a public 
 nuisance unless some injury of such a character is sustained by 
 him. 58 The question of special injury to the individual in such 
 cases is material only to his standing to bring the suit ; it is the 
 gravity of the interference with the public rights and interests 
 which determines the court to grant an injunction. 59 
 
 § 354. Cities and citizens. — A private person cannot maintain 
 an injunction on behalf of the city in which he resides, to prevent 
 the violation of an ordinance enacted pursuant to the city charter, 
 unless such authority is conferred upon him by statute. 60 And 
 
 57. In Georgetown v. Alexandria 
 Canal Co., 12 Pet. (U. S.) 91, 9 L. 
 Ed. 1012, there was an obstruction of 
 the Potomac river, and it was held 
 that, as plaintiffs had not averred 
 and proved they were owners of 
 property liable to be injured by the 
 nuisance, they could not maintain the 
 bill for injunction. 
 
 In Bigelow v. Hartford Bridge Co., 
 14 Conn. 565, the plaintiff filed a bill 
 to restrain the building of a causeway 
 which would cause the Connecticut 
 river to overflow his land, and the 
 bill was dismissed because the injury 
 was not peculiar to plaintiff, but 
 common to the public generally. 
 
 In O'Brien v. Norwich, etc., R. Co., 
 17 Conn. 372, the act threatened was 
 the building of a bridge over an arm 
 of the sea, which would prevent the 
 inhabitants of Preston, of whom was 
 plaintiff, from having access to the 
 mouth of the river Thames. The bill 
 was dismissed on the ground that no 
 damage peculiar to plaintiff was 
 shown. See, also, Seeley v. Bishop, 
 19 Conn. 128; Smith v. Boston, 7 
 Cush. (Mass.) 254; Anon., 3 Atk. 
 750. 
 
 58. State v. Milwaukee, 102 Wis. 
 509, 78 N. W. 750. 
 
 59. Flynn v. Taylor, 127 N. Y. 596, 
 28 N. E. 418; Callanan v. Gilman, 
 107 N. Y. 360, 14 N. E. 264. 
 
 60. Binghamton City Charter, tit. 
 9, § 23, provides that " the common 
 council shall have power ... to 
 prescribe limits in the city, within 
 which wooden buildings shall not be 
 constructed, removed, added to, or en- 
 larged, without the permission of the 
 said common council," and that the 
 council may prescribe fines and im- 
 prisonment for violations of ordi- 
 nances and resolutions made pursu- 
 ant to such section. Title 3, § 8, pro- 
 vides that, " violations of all ordi- 
 nances and resolutions may also be 
 restrained by the injunction order of 
 any court having jurisdiction, and 
 the city of Binghamton may, in its 
 corporate name, bring actions for 
 such injunctions." Held, that an ac- 
 tion to enjoin the moving of a build- 
 ing in the fire limits, in violation of 
 an ordinance enacted pursuant to the 
 city charter, could not be brought by 
 a private person, but was maintain- 
 able only by the city. Ogden v. Wel- 
 
 543
 
 §354 
 
 Pabties. 
 
 ordinarily, a city cannot have an injunction to restrain the threat- 
 ened violation of a city ordinance directed against risks by fire." 
 And it is only when the act of a municipal corporation which is a 
 public wrong works also a special injury to particular individuals 
 that a suit for an injunction can be maintained in their names 
 alone. 62 So the aid of a court of equity can not be invoked either 
 by an individual or by a private corporation to enjoin the con- 
 struction of a street, railway. 63 And private individuals who 
 sustain no injury other than that sustained in common with all 
 citizens cannot, in the case of a contemplated change by a railroad 
 company in the operation of the road, maintain a suit to restrain 
 
 den, 61 Hun (N. Y.), 621, 15 N. Y. 
 Supp. 790. The court said : " An 
 examination of the portion of the 
 charter relied upon by the appellant 
 shows that it fails to expressly con- 
 fer upon any other party than the 
 city the right to maintain an action 
 for an injunction. The appellant, 
 however, contends that such right is 
 to be implied from the language em- 
 ployed in section 8. We do not think 
 that that section is susceptible of the 
 construction contended for. We find 
 nothing in it from which any author- 
 ity to maintain an action to enjoin 
 the erection of such a building by any 
 party except the city of Binghamton 
 can be properly implied." 
 
 Against erection of wooden 
 buildings. — In Stilwell v. Riding 
 Academy, 4 N. Y. Supp. 414, it was 
 held that a violation of an ordinance 
 of the city of Buffalo, prescribing 
 that the creation of a wooden build- 
 ing in the city was a nuisance, was 
 not a ground for granting an in- 
 junction at the suit of an individual ; 
 that the remedy was through the city 
 authorities. 
 
 In Young v. Scheu, 9 N. Y. Supp. 
 349, 56 Hun (N. Y.), 307, it was 
 
 held that a police regulation against 
 wooden buildings did not give a lot 
 owner the right to maintain an in- 
 junction against the erection of a 
 frame building. 
 
 Against bawdy house. — In An- 
 derson v. Doty, 33 Hun (N. Y.), 160, 
 it was held that plaintiff could not 
 enjoin a bawdy house in the city of 
 Rochester, which rendered his own 
 houses in the neighborhood less mar- 
 ketable and less tenantable. 
 
 Violation of Sunday law can 
 not be enjoined at suit of private 
 citizen. Fisher v. Lakeside Park & 
 A. Co., 4 Ohio N. P. 329. 
 
 Where city limits have been 
 extended by an ordinance the 
 validity of such ordinance may be 
 tested in a proceeding brought by a 
 resident of the added territory to 
 enjoin the collection of city taxes. 
 Parker v. Zeisler, 73 Mo. App. 537. 
 
 61. St. Johns v. McFarlan, 33 
 Mich. 72; Waupun v. Moore, 34 Wis. 
 450; Mayor v. Thome, 7 Paige (N. 
 Y.), 261; Manchester v. Smyth (N. 
 H. 1887), 10 Atl. 700. 
 
 62. Davis v. Mayor of New York, 
 2 Duer (N. Y.), 663. 
 
 63. People v. General Elec. Ry. 
 
 544
 
 Parties. § 355 
 
 the company from making such change. 64 But where there is no 
 municipal corporation to assert the general right of the public, an 
 individual proprietor of land to be injured by the perversion of a 
 public street or square, may maintain an injunction in behalf of 
 himself and others similarly interested, to prevent such perver- 
 sion. 65 And it has been decided that a private citizen may bring 
 an action to enjoin the alleged unauthorized collection of tolls by a 
 turnpike company. 66 Again, where a petition for an injunction 
 against the payment of salaries to policemen not legally appointed 
 was brought against the clerk, auditor and treasurer of a city, but 
 the city was not made a party, it was decided that it was not 
 enough that the city assumed the defense of the case through its 
 attorney but that the city was a necessary party and that so long 
 as it did not appear upon the record no decree could be passed 
 against it. 67 
 
 § 355. Towns as parties. — A town which is bound to maintain 
 and keep in repair an open drain within its limits, is the proper 
 party plaintiff to bring a bill to enjoin an obstruction of the 
 drain. 68 And a town may, in a proper case, enjoin an interference 
 with a public way, by which it may be put to expense in repairing 
 the way, or may be liable in damages for injuries caused by the 
 obstruction. 69 But a bill in equity, brought by a town, and its 
 
 Co., 172 111. 129, 50 N. E. 158. See could enjoin the city of Boston from 
 
 Lohenstine v. Union Elev. R. Co., 80 excavating a highway in the town for 
 
 Fed. 9, 25 C. C. A. 304, 53 U. S. the purpose of laying water works, 
 
 App. 1. to supply the city with water, the 
 
 64. Henry v. Ann Arbor R. Co., city not having the authority of 
 116 Mich. 314, 75 N. W. 886. statute. On the same point, see Bur- 
 
 65. Cady v. Conger, 19 N. Y. 256. lington v. Schwarzmann, 52 Conn. 
 
 66. Louisville & T. T. R. Co. v. 181; Springfield v. Connecticut Riv. 
 Boss, 19 Ky. Law Rep. 1954, 44 S. R. Co., 4 Cush. 63, per Shaw, C. J.: 
 W. 981. See Fitzgibbon v. La Cam- " A preliminary objection was taken, 
 pagnie du Chemin de Peage de that the inhabitants of the town, in 
 Dorval, 12 Caw. S. 409. their corporate capacity, have no such 
 
 67. Samis v. King, 40 Conn. 298. interest in the preservation of the 
 
 68. Town of Melrose v. Cutter, 159 highways within their limits, as will 
 Mass. 461, 34 N. E. 695. warrant them in applying to this 
 
 69. Inhabitants of Quincy v. City court to restrain and prevent a nui- 
 of Boston, 148 Mass. 389, 19 N. E. sance. We have not examined the 
 519, where it was held that the town subject very thoroughly, but we are 
 
 545 
 35
 
 355 
 
 Parties. 
 
 highway surveyors, to prevent the obstruction of a town way, 
 cannot be maintained if it alleges no special damage to the in- 
 habitants of the town distinct, or different from that suffered by 
 the public generally ; 70 and if the nuisance is public, and requires 
 the interposition of a court of equity, the suit must be instituted 
 by the Attorney-General, or by some officer who represents the 
 commonwealth, either in his own name or that of the people. 71 
 In case of the threatened removal of a fence by the supervisors and 
 pathmaster of a town on the claim that it encroaches upon a high- 
 way, the town is a proper party to an action to prevent it. 72 And 
 
 inclined to think that as the town is 
 responsible for the amendment of 
 town ways, and for damages to trav- 
 elers, they have the right to invoke 
 the equity power vested in this court 
 in cases of nuisance." 
 
 70. Needham v. New York & New 
 Eng. R. Co., 152 Mass. 61, 25 N. E. 
 20. A village corporation may file 
 a bill to enjoin a nuisance on a pub- 
 lic square dedicated to the use of its 
 inhabitants, and a private person, 
 having a right to enjoin the nuisance, 
 may be joined as plaintiff with the 
 corporation in one suit. Watertown 
 Trustees v. Cowen, 4 Paige, 510, 514, 
 per Walworth, Ch.: "The Court of 
 Chancery, in England, granted an in- 
 junction upon the application of the 
 corporation of the city of London, to 
 prevent a nuisance by which the lives 
 of the citizens would b^ endangered. 
 Mayor of London v. Bolt, 5 Ves. 129. 
 And in the State of North Carolina 
 a decree for a perpetual injunction, 
 to restrain the erection of a nuisance, 
 which would endanger the health of 
 the town of Yarborough, was made 
 on a bill filed by the Attorney-Gen- 
 eral and the inhabitants of the town 
 jointly. Attorney-General et al v. 
 Blount, 4 Hawks, 384." 
 
 71. Attorney-General v. Metropoli- 
 tan Railroad, 125 Mass. 515; Attor- 
 ney-General v. Jamaica Pond Aque- 
 
 duct, 133 Mass. 361; People v. Van 
 derbilt, 28 N. Y. 396; State v. Day- 
 ton, etc., R. Co., 36 Ohio St. 434 ; At- 
 torney-General v. Lea, 3 Ired. Eq. 
 302; Attorney-General v. Perkins, 2 
 Dev. 38. 
 
 As to the power of the Attor- 
 ney-General to prosecute an action 
 in the name of the people, to restrain 
 commissioners from issuing town 
 bonds, see People v. Miner, 2 Lans. 
 396, where Davis v. New York, 2 
 Duer, 663, is disapproved, and such 
 power to restrain corporate action is 
 found to be limited to public nui- 
 sances and to breach of trust for 
 charitable uses; and in support of 
 this conclusion are cited Attorney- 
 General v. Forbes, 2 M. & Cr. 123; 
 Frewin v. Lewis, 4 M. & Cr. 249; At- 
 torney-General v. Aspinall, 2 M. & 
 Cr. 613, reversing 1 Keen, 513; Attor- 
 ney-General v. Poole, 2 Keen, 190, af- 
 firmed 4 M. & Cr. 17; Attorney-Gen- 
 eral v. Norwich, 16 Simons, 225; At- 
 torney-General v. Utica Ins. Co., 2 
 Johns. Ch. 371; People v. Lowber, 7 
 Abb. 158; People v. Mayor, 9 Abb. 
 Pr. 253; People v Mayor, 10 Abb. Pr. 
 144; People v. Mayor, 32 Barb. 102. 
 And see Doolittle v. Broome, 18 N. 
 Y. 157. 
 
 72. Nicolai v. Town of Vernon, 88 
 Wis. 551, 60 N. W. 999. 
 
 546
 
 Parties. § 356 
 
 where in a proceeding by a telephone company to enjoin the threat- 
 ened removal of poles and wires it is alleged that some of the 
 stockholders in the defendant company are village trustees and 
 that they are conspiring with the defendant company to create a 
 monopoly in favor of the defendant it is proper to join the tele- 
 phone company and the village as defendants. 73 And where it 
 was sought to restrain the incorporation of a village by certain 
 persons and the acts sought to be restrained were consummated 
 and the village became incorporated, and in a supplementary com- 
 plaint a judgment was demanded that such acts be declared null 
 and void, it was decided that the village itself or the trustees who 
 were exercising the franchise were necessary parties to the action 
 and that an injunction restraining the defendants would have no 
 practical effect upon the corporation. 74 
 
 §350. Same subject; abutting owners. — Where land is set 
 apart as a public square for the benefit of the inhabitants of a 
 town, an owner of a lot abutting on the square cannot enjoin 
 private appropriations of the square for the purpose of protecting 
 purely public rights, but he may for the protection of his indi- 
 vidual and common interests. 75 
 
 73. Village of London Mills v. will be secured by a court of chan- 
 White, 208 111. 289, 70 N. E. 313. eery. Price v. Methodist Church, 4 
 
 74. People v. Clark, 70 N. Y. 518. Ohio, 515, 547. Objections are raised 
 
 75. Brown v. Manning, 6 Ohio, to administering this remedy at the 
 298, per Lane, J. : " The present case instance of these parties, and we are 
 is plainly different from any hereto- referred to the opinion of the court in 
 fore decided by this court. In Rey- one of the above cases, Smith v. Heus- 
 nolds v. Stark County, 5 Ohio, 204, ton, 6 Ohio, 101, in which it is said 
 the donation was for county build- that rights purely public are to be 
 ings. In Smith v. Heuston, 6 Ohio, enforced in the name of the State 
 101, the object of the donation was or of its acknowledged agents. In ", 
 for public buildings for Butler that case the injury, if any, was done 
 county. By these grants estates were to the county and should be repaired 
 vested in the county as a municipal in a suit in its name and at the in- 
 corporation, and became their abso- stance of the proper parties; but the 
 lute property. Here the land was set remedy was denied to those plain- 
 apart as a public square, essentially tiffs, because they were volunteers 
 for the benefit of the inhabitants of only, having no individual interest, 
 the town, the due enjoyment of which The judge, however, proceeds in the 
 
 547
 
 §357 
 
 Parties. 
 
 § 357. Attorney-General as plaintiff. — Courts of equity have 
 jurisdiction upon information of the Attorney-General to restrain 
 corporations from excess or abuse of their franchise and from 
 violations of law to the public injury. 76 And this has long been the 
 settled rule in England. 77 An information of the Attorney-General 
 is equivalent to a bill in chancery on information and belief, and 
 in proper cases calls for an answer under oath; a temporary in- 
 junction will not usually be issued on such an information unless 
 
 report to show that that bill could 
 not be sustained under the well es- 
 tablished principles applicable to the 
 case before us, that one commoner 
 may prefer his suit to sustain the 
 common interests; Mitford's PI. in 
 Ch. 145; Cooper's Eq. 41; Beatty v. 
 Kurtz, 2 Pet. 566, 585; Mayor of 
 York v. Pilkington, 1 Atk. 282. 284; 
 and that one creditor, Thompson v. 
 Crown, 4 Johns. Ch. 619, 638; Brooks 
 v. Reynolds, 1 Bro. 183; Goate v. 
 Fryer, 2 Cox, 201, one legatee, Brown 
 v. Ricketts, 3 Johns. Ch. 553, or one 
 of a great number interested under 
 peculiar circumstances and for con- 
 venience representing the whole, may 
 litigate for the benefit of all. Adair 
 v. New River Co., 11 Ves. 429; Lloyd 
 v. Loaring. 6 Ves. 773. This bill is 
 not skillfully drawn; yet it suffi- 
 ciently appears that the plaintiff is 
 one of the inhabitants of the town, 
 living and holding property contigu- 
 ous to the square, the value of which 
 is affected by the dedication. He is 
 therefore not a volunteer assuming 
 to protect the rights of others, but 
 entitled to this remedy for the pro- 
 tection both of his individual and his 
 common interests." 
 
 76. Attorney General v. Hudson 
 River R. Co.. 9 N. J. Eq. 526; At- 
 torney General v. Cohoes Company, 6 
 Paige (N. Y.), 133; Commonwealth 
 v. Railway Co., 24 Pa. St. 159; At- 
 
 torney General v. Eau Claire, 37 Wis. 
 400. 
 
 A suit to prevent board of 
 auditors from exercising inhibited 
 powers of raising money for public 
 works is properly brought by the at- 
 torney general at the relation of in- 
 dividuals resident in the county. At- 
 torney General v. Board of Auditors, 
 40 N. W. 852, 73 Mich, 53, per Camp- 
 bell, J. : "A preliminary objection 
 was made that the relators have no 
 standing in court and that the suit 
 is not in proper form. If the bill was 
 filed to obtain relief for them the 
 objection would have force. But there 
 has never been any rule in equity 
 preventing the attorney general from 
 acting on relation, so long as the 
 grievance is one affecting the public 
 interest, and he retains control of the 
 suit. It is rather to the defendant's 
 advantage to have a private person 
 responsible for costs, and this is a 
 chief reason why such action has 
 been allowed." 
 
 77. Attorney General v. Johnson, 2 
 Wilson, 87 ; Attorney General v. 
 Forbes, 2 M. & Cr. 123; Attorney 
 General v. Great Northern R. Co., 4 
 DeG. & S. 75; Attorney General v. 
 Sheffield Gas Co., 3 DeG.. M. & G. 
 304; Attorney General v. Great 
 Northern R. Co., 1 Dr. & S. 154; At- 
 torney General v. Mid Kent R. Co., 
 L. R. 3 Ch. App. 100; Attorney Gen- 
 
 548
 
 Parties. § 358 
 
 supported by positive affidavits, until the defendant has had an 
 opportunity to contradict it on oath and has failed to do so. 78 In 
 Missouri it has been decided that a suit for an injunction may be 
 prosecuted by the Attorney-General in the Circuit Court where 
 the' suit is such a one as the State could maintain. 79 Where a 
 private individual cannot maintain a proceeding in his own name 
 for an injunction he cannot do so in the name of the Attorney- 
 General, it being declared that a court of equity may go behind 
 the parties on the face of the record to see who are the real parties 
 prosecuting the proceeding, and that this may be done even where 
 the proceeding is in the name of the Attorney-General. 80 
 
 § 358. Corporations as parties. — In respect to matters which 
 relate merely to the internal management or control of a corpora- 
 tion a court of equity will not interfere by injunction so as to 
 restrain de facto officers from acting as such solely on the ground 
 that their title to office is invalid. 81 But under the rule that public 
 bodies and officers may be restrained by injunction from proceed- 
 ing in violation of law as to the prejudice of the public and injury 
 to individual rights, it has been decided that the Seneca Nation 
 of Indians, as a public corporation, may maintain an injunction 
 against a person claiming to be the president of the corporation 
 from assuming to act as such where the office is in the actual pos- 
 session of another. 82 If a corporation is insolvent, its stockholders 
 have no pecuniary interest therein which entitles them as parties 
 to ask that the corporate assets may be ratably distributed among 
 the creditors ; 83 but they are proper parties plaintiff in a suit in 
 equity to enjoin the directors from mismanagement and fraud 
 
 eral v Cambridge Gas. Co., L. R. 4 81. People v. Conklin, 5 Hun (N. 
 
 Ch. App. 71. Y.),452. 
 
 78. Attorney General v. Railroad 82. Seneca Nation v. John, 27 
 Companies, 35 Wis. 425, 593; At- Abb. N. C. (N. Y.) 253. And see 
 torney General v. Cohoes Co., 6 Paige. People v. Canal Board, 55 N. Y. 
 133 390, 393 ; Reis v. Rohde, 34 Hun (N. 
 
 79. State v. Zachritz, 160 Mo. 307, Y.), 161. 
 
 65 S. W. 999, 89 Am. St. Rep. 711. 83. Birmingham Min. & Manuf's 
 
 80. People v. General Elec. Ry. Co. v. Mutual Loan & Trust Co., 96 
 Co.. 172 111. 129. 50 K E. 158. Ala. 364, 11 So. 368. See Cutshaw v. 
 
 549
 
 !§' 359 Parties. 
 
 which threaten the corporation with insolvency, especially where 
 the majority of the directors are implicated in the fraud and are 
 in possession. 84 Ani the law is said to be well settled that to 
 entitle a party to relief by injunction against the illegal or fraudu- 
 lent proceedings of corporate officers, the party seeking relief must 
 be a stockholder of the corporation. 85 Parties, however, who have 
 failed to comply with the conditions and terms of their subscrip- 
 tion to the capital stock of a corporation, without any default on 
 the part of the corporation or its officers do not possess such a 
 right or interest in the stock as to entitle them to an injunction 
 against acts of the corporation or its officers. 86 And it has been 
 decided that where an apprehended injury will injure equally all 
 the stockholders of a corporation, the corporation is ordinarily 
 the proper party to sue for an injunction, and not a stockholder 
 for himself and other stockholders. 87 But the collection from the 
 stockholders of a bank of a tax on the shares of stock which is pay- 
 able by them as individuals, will not be enjoined in a proceeding 
 brought by the bank in its corporate name. 88 A party who is about 
 to be damaged by the act of a company assuming to act as a cor- 
 poration, but never legally organized as such may bring his action 
 for an injunction against such company in the corporate name. 89 
 Where, however, there is no prayer for process as to a corporation, 
 the fact that its name is mentioned in the bill and that a prayer 
 for relief against it is contained therein does not render it a party 
 to the petition. 90 
 
 § 359. Trustees; receivers. — If a trustee has large and active 
 powers over the trust estate he is a necessary party to a suit by a 
 
 Fargo, 8 Ind. App. 691, 34 N. E. 87. American Refrigerating and 
 
 376 36 N E. 650. Construction Co. v. Lynn, 93 Ala. 610, 
 
 84. Birmingham Min. & Manuf's 7 So. 191. 
 
 Co v Mutual Loan & Trust Co., 96 88. Northwestern Loan & B. Co. 
 
 Ala. 364, 11 So. 368. v. Muggli, 7 S. D. 527, 64 N. W. 1122. 
 
 85. Roebling v. First Nat. Bank. 89. Newton County Draining Co. 
 30 Fed. 744. Per Wallace, J. v. Nofsinger, 43 Ind. 566. 
 
 86 Busey v Hooper, 35 Md. 15. 6 90. Orr Shoe Co. v. Kimbrough, 
 
 Am. Rep. 350. 99 Ga. 143. 25 S. E. 204. 
 
 550
 
 Pakties. 
 
 359 
 
 stranger to defeat the trust, 91 and if his powers are large enough 
 to enable him sufficiently to represent the beneficiaries, they are 
 not necessary parties ; 92 nor are they in a suit by the trustee against 
 a third person for the purpose of enforcing the trust. 93 But if his 
 powers are not sufficient to enable him fully to represent them, or 
 if he is acting collusively or suspiciously, they will be allowed to 
 intervene as parties. 94 The trustees of an incorporated religious 
 society are proper plaintiffs in an action to enjoin pretended 
 trustees from interfering with the property and affairs of the 
 society. 95 A trustee, having a naked legal title in land, cannot be 
 
 91. Mc Arthur v. Scott, 113 U. S. 
 340, 396, 5 S. Ct. 652, 28 L. Ed. 1015; 
 Kerrison v. Stewart, 93 U. S. 155, 
 160, 23 L. Ed. 843. 
 
 92. Schley v. Brown, 70 Ga. 64; 
 Winslow v. Minnesota, etc., R. Co., 
 4 Minn. 313; Rogers v. Rogers, 3 
 Paige (N. Y.), 379; Wakeman t. 
 Grover, 4 Paige (N. Y.). 34; Camp- 
 bell v. Watson, 8 Ohio, 498, 500. 
 
 In Green v. Grant, 143 111. 61, 73, 
 32 N. E. 369, Wilkin, J., said: 
 "Notwithstanding the fact that 
 these appellants may have an 
 expectancy in the trust estate as 
 it shall exist at the death of the 
 mother, that does not entitle them to 
 be made parties to every suit that 
 the trustees may be called to bring 
 or defend in order to preserve their 
 trust. As was said in American Bible 
 Society v. Price, 115 111. 644: The 
 title is in the trustees, and the duty 
 is imposed upon them to protect and 
 preserve this interest for whomsoever 
 shall be ultimately entitled to it. 
 They are parties to the suit and they 
 stand for and represent in this liti- 
 gation the ownership ultimately en- 
 titled to this hind, and such owner- 
 ship is bound by their representa- 
 tion." In Morgan v. Rose. 22 N. J. 
 Eq. 583, 593, Beaslev, C. J., said: "The 
 defect now complained of is that the 
 
 corporation has not been subpoenaed, 
 but all the corporators who are the 
 trustees are before the court; there 
 can be no pretense that on the motion 
 to dissolve this injunction, the joinder 
 of the corporate body could have 
 had the slightest effect; every cir- 
 cumstance of defense which that body 
 could have interposed; has been pre- 
 sented by the trustees, and upon mo- 
 tion it would be a matter of course to 
 permit complainants to amend their 
 bill on the point to which exception 
 is taken." 
 
 93. Shaw v. Norfolk, etc., R. Co., 
 5 Gray (Mass.), 171; Ash ton v. At- 
 lantic Bank, 3 Allen (Mass.), 220; 
 Campbell v. Railroad Co., 1 Woods, 
 376; Nye v. Nightingale, 6 R. I. 439. 
 Under the Michigan statutes it is 
 competent for any creditor to file a 
 bill against the assignees of an insolv- 
 ent debtor to enforce the execution of 
 the trust; the other creditors are not 
 necessary defendants as having oppos- 
 ing interests, nor need they be joined 
 as plaintiffs, as the statute author- 
 izes separate action by any creditor. 
 Wilhelm v. Byles, 60 Mich. 561, 27 
 N. W. 847, 29 N. W. 113. 
 
 94. Kerrison v. Stewart, 93 U. S. 
 155. 160, 23 L. Ed. 843; Winslow v. 
 Minnesota, etc., R. Co., 4 Minn. 313. 
 
 95. Trustees etc., v. Hoessli, 13 
 
 551
 
 § 360 Parties. 
 
 restrained in equity from asserting his title or conveying it away, 
 or compelled to convey it to one to whom the cestui que trust has 
 transferred his title, without joining the cestui que trust as a party 
 to the bill. 96 A trustee to sell property who has advertised it for 
 sale, being the mere agent of the cestui que trust, and without in- 
 terest in the controversy, is a proper party to a bill filed to enjoin 
 the sale of the property embraced in the trust, on the ground of a 
 fraudulent combination on the part of the cestui que trust and 
 another person, to defraud the complainant of his right, in the 
 trust property. 97 Where, on the appointment of a receiver of prop- 
 erty, it passes into the custody of the court which makes the 
 appointment, the receiver, as the organ and agent of the court, is 
 the proper party plaintiff in a suit for injunction to prevent inter- 
 ference with the property. 98 
 
 §360. Sureties; principal; administrators. — A surety joined 
 as a defendant with his principal, against both of whom judgment 
 has been rendered, is directly interested in the result of an injunc- 
 tion suit brought by a mortgagee of the principal's land to restrain 
 its sale by the judgment creditor, and is therefore properly per- 
 mitted to intervene in the injunction suit. 99 The principal of an 
 agent, against whom a judgment has been fraudulently obtained 
 and who would have recourse against the principal in case he 
 should pay it, is a proper party to restrain the execution of the 
 judgment. 1 As a rule, agents are not joined with their principals 
 in injunction suits in accordance with the general rule of equity 
 pleading that no person should be made a party who is not inter- 
 ested in the subject matter of the suit and for or against whom a 
 
 Wis. 348. And see Beatty v. Kurtz, 2 Richmond, etc., R. Co. v. Blake, 49 
 
 Pet. (U. S.) 566, 584, 7 L. Ed. 521. Fed. 904. 
 
 96. Richards v. Richards, 9 Gray 99. Ivory v. Kempner, 2 Tex. Civ. 
 (Mass.), 313. A. 474, 21 S. W. 1006. 
 
 97. Everett v. Winn, Sm. & M. Ch. 1. Webster v. Skipwith, 26 Miss. 
 (Miss.) 67. 341. A sheriff, as agent of plaintiff 
 
 98. Ex parte Chamberlain, 55 Fed. who has obtained judgment and exe- 
 704, where a sheriff was enjoined cution, need not be made a party de- 
 from distraining property in the fendant in a suit to restrain the exe- 
 hands of a receiver to enforce the cution, but is bound to obey the in- 
 payment of an illegal tax. And see junction which is served on him. Buf- 
 
 552
 
 Paeties. § 361 
 
 decree cannot be made. 2 So one who occupies to another the posi- 
 tion of an agent or servant merely of the one whose acts or conduct 
 it is sought to restrain, should not be made a party defendant. 3 
 So an attorney is not a proper party to an action to restrain his 
 clients from the prosecution of a suit, where nothing is alleged 
 against him except that he was discharging his duty as attorney 
 in prosecuting the action, and no relief but an injunction is de- 
 manded against him. 4 But if the principal is not himself subject 
 to the jurisdiction of the court the rule that an injunction will not 
 be allowed against an agent, where the principal is not made a 
 party to the suit, may be dispensed with. 5 An administrator who 
 has obtained an order from the County Court for the sale of land, 
 to pay debts of his intestate, is a necessary party defendant to a 
 bill in equity, filed by a person claiming the land under a tax-deed, 
 to enjoin a sale thereof by the commissioners appointed to make 
 the 8 ale. 6 
 
 § 361. Taxpayers as plaintiff. — The right of a taxpayer to 
 maintain a suit to enjoin the misappropriation of public funds is 
 one which, as a general rule, is recognized by the courts. 7 A tax- 
 payer may for himself, and in behalf of the other taxpayers of a 
 
 fandeau v. Edmonson, 17 Cal. 436. one. Merritt v. Daffin, 24 Fla. 320, 
 
 2. Woolstein v. Welch, 42 Fed. 4 So. 806; Alston v. Rowles, 13 Fla. 
 566; Story, Eq. PI., § 231. 110, 116; Scarlett v. Hicks, 13 Fla. 
 
 3. Grover v. Swain, 29 Hun (N. 314; Loring v. Wittich, 16 Fla. 495; 
 Y.), 454. Robinson v. Springfield Co., 21 Fla. 
 
 4. Ely v. Lowenstein, 9 Abb. Prac. 203, 234." 
 
 N. S. ( N. Y. ) 37 ; Kirchner v. Peder- la a bill by an administrator 
 
 son, 117 Wis. 68, 93 X. W. 813. to enjoin a sale of real estate 
 
 5. Osborn v. United States Bank, 9 by a trustee, on the ground that the 
 Wheat. (U. S.) 738, 6 L. Ed. 204. debt has been paid by the debtor in 
 
 6. Bevill v. Smith, 25 Fla. 209, 6 his lifetime, the heirs of the grantor 
 So. 62, per Raney, C. J. : " The only are necessary parties. Stewart v. 
 defendant to the suit at the time the Jackson, 8 W. Va. 29. But the bill 
 injunction was granted was Bevill in should not be dismissed for want of 
 his capacity as commissioner, and parties if the plaintiff desires to 
 there was therefore an entire absence amend and is otherwise entitled to 
 of necessary parties. In such a case injunctive relief. Jameson v. De- 
 the representative of the estate is a shields, 3 Gratt. (Va.) 4. 
 necessary party if not the only proper 7. District of Columbia. — Roberts 
 
 553
 
 §361 
 
 Parties. 
 
 city, maintain a suit for an injunction to prevent the collection 
 of bonds which have been fraudulently voted in aid of the con- 
 struction of a railroad ; 8 to prevent the unauthorized or unlawful 
 issuance of bonds; 9 to enjoin the extension or collection of an 
 entire tax that is unauthorized and void; 10 to prevent the making 
 of an illegal contract; 11 to restrain the carrying out of a contract 
 which was not awarded to the lowest bidder as required by stat- 
 ute ; 12 to prevent the payment of public funds to a charitable organ- 
 ization under an alleged unauthorized contract; 13 to prevent the 
 unauthorized creation of a debt for the payment of which a tax 
 must be imposed ; 14 to prevent the issuance of an order in payment 
 of expenses of an officer where such expenses are alleged to have 
 been illegally audited, 15 or to prevent a municipality from carrying 
 on a business which its charter does not authorize it to do. 16 And 
 it is decided that an injunction will lie against a school district in 
 favor of a taxpayer to prevent the use of a school house for religious 
 meetings and Sunday schools, though tbe injury to him may be 
 
 v. Bradfield, 12 App. D. C. 453, 26 
 Wash. L. R. 242. 
 
 Florida. — Chamberlain v. Tampa, 
 40 Fla. 74, 23 So. 572. 
 
 Illinois. — Bradley v. Gilbert, 46 111. 
 App. 623. 
 
 Michigan. — Savidge v. Spring Lake, 
 112 Mich. 91, 70 N. W. 425. 
 
 Nebraska. — Tukey v. Omaha, 54 
 Neb. 370, 74 N. W. 613. 
 
 New Hampshire. — Blood v. Man- 
 chester Elec. L. Co., 68 N. H. 340, 39 
 Atl. 335. 
 
 Ohio. — Elyria Gas & W. Co. v. 
 Elyria, 57 Ohio St. 374, 49 N. E. 335. 
 
 Oregon. — Brownfield v. Houser, 30 
 Oreg. 534, 49 Pac. 843. 
 
 Wisconsin. — Webster v. Douglass 
 County, 102 Wis. 181, 77 N. W. 885. 
 
 8. Nash v. Baker, 37 Neb. 713, 56 
 N. W. 376. The injunction in this 
 case was against the mayor and com- 
 mon council of the city of Kearney 
 and the Kearney, etc., Railway Com- 
 
 pany, to prevent the collection of 
 bonds which the company had, by 
 means of false representations, pro- 
 cured to be voted by the city of 
 Kearney. 
 
 9. Elyria Gas & W. Co. v. Elyria, 
 57 Ohio St. 374, 49 N. E. 335. 
 
 10. Knopf v. First Nat. Bank, 173 
 111. 331, 50 N. E. 660. 
 
 11. McClain v. McKisson, 15 Ohio 
 
 C. C. 517. 
 
 12. Holden v. Alton, 179 111. 318, 
 53 N. E. 556. 
 
 1,3. Roberts v. Bradfield, 12 App. 
 
 D. C. 453, 26 Wash. L. R. 242. 
 
 14. Tukey v. Omaha, 54 Neb. 370, 
 74 N. W. 613. 
 
 15. Brownfield v. Houser, 30 Oreg. 
 534, 49 Pac. 843. See Attorney-Gen- 
 eral v. Tynemouth, 75 Law T. Rep. 
 566. 
 
 16. Keen v. Waycroas, 101 Ga. 588, 
 29 S. E. 42. 
 
 554
 
 Parties. 
 
 § 361a 
 
 slight, as he has no other remedy. 17 But in the absence of some 
 claim of fraud or want of authority a public board will not be re- 
 strained from the acceptance of a public work where the statute 
 provides a complete remedy by appeal from the decision of the 
 board. 18 
 
 § 361a. Same subject continued. — In Indiana and several other 
 Spates the rule seems settled that a taxpayer of a county may 
 maintain an action to enjoin the county officers from doing illegal 
 acts and transcending their lawful powers, when the effect would 
 be to impose upon such taxpayer an unlawful tax or to increase 
 his burden by taxation. 19 In some other States it has been decided 
 that a taxpayer cannot sue for himself and other taxpayers to 
 restrain a sale of the several lots belonging to him and them for 
 the purpose of collecting a tax, for their interests are distinct, and 
 one taxpayer may obtain complete relief without making another 
 a party. 20 In New York a taxpayer can maintain an action to 
 
 17. Scofield v. Eighth School Dis- 
 trict, 27 Conn. 499. 
 
 18. Manly Mfg. Co. v. Broaddus, 
 94 Va. 547, 27 S. E. 438. 
 
 19. Clay County Com'rs v. Markle, 
 46 Ind. 96, 104, per Osborn, J.: "It 
 has been settled in this State that the 
 remedy may be had by any taxpayer 
 in his own name. Lafayette City v. 
 Cox, 5 Ind. 38; Oliver v. Keightley, 
 24 Ind. 514; Harney v. Indianapolis, 
 etc., R. Co., 32 Ind. 244; English v. 
 Smock, 34 Ind. 115; Noble v. Vin- 
 cennes City, 42 Ind. 125." But see 
 Jones v. Cardwell, 98 Ind. 331. 
 
 In favor of this rule see also: 
 
 Illinois. — Colton v. Hanchett, 13 
 111. 615. 
 
 Iowa. — Palo Alto Banking & I. 
 Co. v. Mahar, 65 Iowa, 74, 78, 21 N. 
 W. 187 ; Brandirff v. Harrison Co., 50 
 Iowa, 164; Rice v. Smith, 9 Iowa, 
 570. 
 
 Maryland. — Mayor of Baltimore v. 
 Gill, 31 Md. 375. 
 
 New Hampshire. — Merrill v. Plain- 
 field, 45 N. H. 126. 
 
 Ohio. — State v. Ottawa County 
 Com'rs, 7 Ohio Dec. 34, 5 Ohio N. P. 
 260. 
 
 Oregon. — Brownfield v. Houser, 30 
 Oreg. 534, 49 Pac. 843. 
 
 20. Newcomb v. Horton, 18 Wis. 
 566; Bouton v. Brooklyn, 15 Barb. 
 375. In Sherman v. Bellows, 24 Or. 
 553, 34 Pac. 549, it was held that a 
 private citizen cannot bring a suit 
 against a State board to enjoin the 
 erection of a public building at a 
 place other than prescribed by law, 
 unless his burden of taxation will 
 thereby be increased. Moore, J., said : 
 " While there is an irreconcilable 
 conflict in the decisions upon the 
 right of a taxpayer, in his own name, 
 to restrain by injunction a municipal 
 corporation and its officers from il- 
 legally creating debts, or disposing 
 of the corporate property or funds, 
 we think the decided weight of au- 
 
 555
 
 362 
 
 Pasties. 
 
 prevent waste, under section 1925 of the New York Code of Civil 
 Procedure only where the acts complained of are ultra vires or are 
 tainted with fraud. 21 In this State also the statute giving the right 
 to a taxpayer to maintain a suit to restrain an illegal official act 
 has been construed as authorizing the issuance of a preliminary 
 injunction in such a suit only where the alleged act is clearly 
 illegal. 22 
 
 § 362. Joinder of plaintiffs generally. — The rule in equity as 
 to the joinder of parties is more elastic than at law, and generally 
 when several persons have a common interest in the subject of a 
 bill and a right to ask for the same equitable remedy against the 
 defendant, they may properly be joined as plaintiffs. 23 Parties 
 who have an interest in the subject matter of a suit may properly 
 be joined as plaintiffs in a proceeding for an injunction affecting 
 such subject matter. Thus, the owners of several lots of land may 
 join in a bill to restrain a nuisance which threatens a permanent 
 injury to a passageway in which they have a right of way in com- 
 
 thority supports the doctrine that he 
 may invoke the aid of a court of 
 equity to obtain such relief, when- 
 ever it is made to appear that such 
 illegal act of the corporation would 
 increase his burden of taxation. 
 Hodgman v. Chicago, etc., R. Co., 20 
 Minn. 48; Willard v. Comstock, 58 
 Wis. 565, 17 N. W. 401 ; New Orleans 
 R. Co. v. Dunn, 51 Ala. 134; Spring- 
 field v. Edwards, 84 111. 627 ; McCord 
 v. Pike, 121 111. 288, 12 N. E. 259. If 
 his property will not be subjected to 
 an additional burden of taxation, and 
 he will not sustain any other per- 
 sonal damages, his injury is not con- 
 tradistinguished from that of all 
 other taxpayers of the municipality, 
 and he cannot invoke the aid of 
 equity to prevent an unlawful cor- 
 porate act, however much he may. in 
 common with others, be injured. 
 Seager v. Kankakee Co., 102 111. 669. 
 His special injury is the gist of the 
 
 suit, and, unless it is alleged and 
 proved, there can be no equitable re- 
 lief in such cases. McDonald v. Eng- 
 lish, 85 111. 236." 
 
 21. New York Central & H. R. R. 
 Co. v. Maine, 71 Hun, 417. 24 N. Y. 
 S. 962; Talcott v. Buffalo, 125 N. Y. 
 280, 26 N. E. 263; Ziegler v. Chapin, 
 126 N. Y. 342, 27 N. E. 471. In 
 West v. City of Utica, 71 Hun, 540, 
 24 N. Y. S. 1075, it was held that 
 where expenses had been incurred by 
 municipal officers in defending pro- 
 ceedings to punish them for violating 
 an injunction, the payment of such 
 expenses by the municipality may be 
 restrained at the suit of a taxpayer, 
 brought to obtain a judgment pre- 
 venting waste of. or injury to the 
 estate, etc., of the municipality. 
 
 22. Seecomb v. Wurster, 83 Fed. 
 856. 
 
 23. Field v. Holzman. 93 Ind. 205 ; 
 Springer v. Lawrence, 47 N. J. Eq. 
 
 556
 
 Paeties. 
 
 §3C2a 
 
 mon, though they derived their titles from different grantors. 24 
 And several owners of lots, each being held subject to the restric- 
 tion that none but dwelling houses should be erected thereon, may 
 join in a suit to restrain a violation of the restriction. 25 And 
 several mill-owners may join as plaintiffs to restrain the defendant 
 from diverting the water of a reservoir from their mills. 26 So 
 creditors whose claims are several and not in judgment may join 
 in an action to restrain a debtor from fraudulently disposing of his 
 property. 27 In Kansas it has been decided that any number of 
 persons whose property is affected by an illegal tax or assessment 
 may unite as plaintiffs in an action to enjoin the collection of the 
 tax, although their interests are several and not joint. 28 
 
 § 362a. Joinder of plaintiffs; life tenants; tenants in common. 
 — Life tenants may properly be admitted as joint complainants 
 with remaindermen in a suit to restrain a nuisance injuring the 
 property, where the costs of the proceedings are not increased, and 
 
 461, 21 Atl. 41; Elliott v. Bloyd, 40 
 Oreg. 326, 67 Pac. 202. 
 
 24. Cadigan v. Brown, 120 Mass. 
 493. Cohen v. Wolff, 92 Ga. 199, 17 
 S. E. 1029, per Simmons, J.: "It 
 seems that the court sustained the 
 demurrer mainly upon the idea that 
 there was a misjoinder of plaintiffs. 
 Under the particular facts of the case, 
 we find no difficulty in reaching the 
 conclusion that, though the fraudulent 
 firm had dealt separately with the pe- 
 titioners, and had purchased goods 
 from them respectively in different 
 parcels, these petitioners had a com- 
 mon interest in setting those fraudu- 
 lent purchases aside. They were the 
 common victims of a general scheme 
 of plunder, and each had a direct and 
 mutual interest in defeating the 
 same. Those mortgages were the 
 common enemy of them all, and 
 against the mortgagees they certainly 
 had a common cause of combat. We 
 think there is no doubt that the 
 
 court, at the instance of the petition- 
 ers, complaining jointly, could, under 
 the facts alleged, take jurisdiction of 
 the case for the purpose of declaring 
 the mortgages void; and it seems in 
 perfect accord with rules of equity 
 pleading and practice that, having 
 obtained jurisdiction for this purpose, 
 the court could properly take charge 
 of all the matters in controversy and 
 grant to each of the plaintiffs appro- 
 priate relief from the consequences of 
 the fraud perpetrated by the defend- 
 ants, in pursuance of one and the 
 same design, and affecting alike all of 
 the petitioners. There was no mis- 
 joinder of plaintiffs." 
 
 25. Parker v. Nightingale, 6 Al- 
 len (Mass.), 341. 
 
 26. Ballou v. Hopkington, 4 Gray, 
 (Mass.), 324. 
 
 27. Field v. Holzman. 93 Ind. 205. 
 
 28. Gilmore v. Norton. 10 Kan. 
 491 ; Gilmore t. Fox, 10 Kan. 509. 
 
 557
 
 §363 
 
 Parties. 
 
 no further amendment of the bill is required or made, and the 
 evidence previously taken is as pertinent after their joinder as 
 before. 29 And one of several tenants in common can enjoin a 
 threatened injury. Thus, persons who separately appropriate the 
 water of a stream, under certain regulations as to the time and 
 manner of such use, are tenants in common, and each of them may 
 enjoin the diversion by a trespasser of any portion of the water. 30 
 And where a right of way to and a right to maintain a cemetery 
 lot for burial purposes are held in common by several persons, 
 any one or more of them may maintain an action to prevent, by 
 injunction, the destruction or interruption of those rights, without 
 making the others parties. 31 
 
 §363. Joinder of plaintiffs; abutting owners, etc. — Where 
 there is an unauthorized obstruction of a public street, as, for 
 instance, by an unauthorized trolley railway, all of the adjacent 
 lot owners who sustain a special injury therefrom may be joined 
 as plaintiffs in a suit for an injunction, and no other parties de- 
 fendant are required than the alleged trespasser. 32 And the owners 
 of separate and distinct tenements, who would each be injured by 
 the erection of a building prohibited by ordinance, may join in an 
 
 29. Rainey v. Herbert, 55 Fed. Minn. 82; Wetmore v. Story. 22 
 443 Barb. 414 ; Pettibone v. Hamilton, 
 
 30. Lytle Creek Water Co. v. Per- 40 Wis. 402. Where there is an un- 
 dew 65 Cal. 447, 4 Pac. 426. authorized obstruction, or closing of 
 
 31. Mitchell v. Thorne, 134 N. Y. a public street, all the adjacent own- 
 536 32 N. E. 10; Murray v. Hay, 1 ers, who sustain by such obstruction 
 Barb. Ch. 59. a special injury, can maintain a suit 
 
 32. Hart v. Buckner, 54 Fed. 925, for injunction against the party or 
 per Pardee J. : " Owners of lots parties making the obstruction, 
 abutting on or adjacent to a public Dudley v. Tilton, 14 La. Ann. 283; 
 street of a city, even if not owners Pettibone v. Hamilton, 40 Wis. 402; 
 of a fee in the street, have the right Griffing v. Gibb, 2 Black, 519. In such 
 of access and the right of quiet en- a suit, no other parties defendant 
 joyment, and such rights are prop- than the alleged trespasser are re- 
 erty which may be protected by in- quired. Railroad Co. v. Ward, 2 
 junction when invaded without legal Black, 485. In the case under pres- 
 authority. Dill. Mun. Corp., sec. ent consideration it seems that all 
 587b; Dudley v. Tilton, 14 La. Ann. the necessary parties, if not all the 
 283; Schurmeier v. Railroad Co., 10 proper parties, are before the court. 
 
 558
 
 Pasties. § 364 
 
 action to restrain the erection of such building; their common 
 danger, and common interest in the relief, authorizes their 
 joinder. 33 Residents in the close vicinity of a beer and pleasure 
 garden, may also join in a bill to enjoin such a use of the garden 
 as would render it a nuisance. 34 But it is decided that a member 
 of a class, having a common interest in the subject matter, cannot 
 maintain an injunction in his own name, and for his iudividual 
 benefit. Thus, an artisan of a particular calling, cannot alone 
 enjoin a violation of the statute restricting convict labor, on the 
 ground that such violation is injurious to his trade. All of the 
 class must join, or he must sue in behalf of himself and all others 
 who are equally interested with him. 35 
 
 § 364. Misjoinder of plaintiffs. — In New Jersey it is decided 
 that several persons owning distinct parcels of land, or occupying 
 different dwellings, and having no common interest, cannot jointly 
 restrain a nuisance in consequence of the special injury to each 
 property, but must proceed separately ; 36 and a joint bill in such a 
 case is demurrable for misjoinder of parties plaintiff. 37 But 
 
 33. First Nat. Bank of Mt. Vernon contractor for imperfect work on a 
 v. Sarlls, 129 Ind. 201. 28 N. E. 434. street, where the owner will be as- 
 So the several owners of abutting sessed in part for the cost, it is a 
 lots, on a street along which the defect not to make other abutting 
 town is threatening to construct a owners, similarly situated, also par- 
 drain, may sue jointly for an in- ties, but the defect may be cured by 
 junction. Town of Sullivan v. Phil- amendment, and if the amendment 
 lips, 110 Ind. 320, 11 N. E. 300; and is insufficient it should be objected 
 to the same effect is Tate v. Ohio, to before trial. Lodor v. McGovern, 
 etc., R. Co., 10 Ind. 174. The rule 48 N. J. Eq. 275, 280, 22 Atl. 199, 
 of the text would not apply to a per Beasley. C. J. See, also. Bond v. 
 distinct and' independent trespass to Newark. 19 N. J. Eq. 376, where 
 several property owners, or to a the bill for injunction was exhibited 
 series of independent acts by the on behalf of Bond and other owners 
 same person, affecting different per- of lots on Union street. 
 
 sons. Heagy v. Black, 90 Ind. 534. 36. Demarest v. Hardham, 34 N. 
 
 34. Pfingst v. Senn, 94 Ky. 556, J. Eq. 469, where the vice chancellor 
 23 S. W. 358. cited Davidson v. Isham, 9 N. J. Eq. 
 
 35. Smith v. Lockwood, 10 N. Y. 186; Morris, etc., R. Co. v. Prudden, 
 Leg. Obs. 12; 1 Code Rep. N. S. 319. 20 N. J. Eq. 530. 
 
 In an action by an abutting 37. Hinchman v. Paterson R. Co- 
 
 owner to restrain the common 17 N. J. Eq. 75; Jones v. Del Rio, 1 
 council of a city from paying a Turn. & Russ. 297. 
 
 559
 
 § 365 Parties. 
 
 several persons may join in a suit to restrain a nuisance which is 
 common to all and affects each in the same way. 38 Persons whose 
 interests are distinct and several, must not be joined as plaintiffs 
 for an injunction. Thus, persons who have been separately in- 
 dicted for the sale of intoxicating liquors in the original packages 
 in which they were imported, and separately enjoined from mak- 
 ing such sales, cannot maintain a joint suit for an injunction 
 against such proceedings, though they are, respectively, the agent 
 and subagent of the same importer. 39 And where a bill for injunc- 
 tion is multifarious by reason of joining complainants whose titles 
 to relief are wholly disconnected, and to whom the mode and 
 measure of relief, beyond injunction, would not be dependent on 
 the same facts, a denial of the injunction is held proper. 40 
 
 § 365. One or more for all. — The rule that one or more plain- 
 tiffs may sue in equity for the benefit of all others similarly situ- 
 ated and interested, is well settled. Thus, in an action to restrain 
 the sale of real estate, for the purpose of collecting a sewer assess- 
 ment, some of the distinct owners of separate parcels of the real 
 estate may be joined as plaintiffs, and ask the same relief for all 
 others similarly situated. 41 Some of the citizens and land-owners 
 
 38. Demarest v. Hardham. 34 N. v. Hay, 1 Barb. Ch. 59; Brady v. 
 
 J. Eq. 469, 471, per Van Fleet, V. C. Weeks, 3 Barb. 157." 
 
 Tn Foot v. Bronson, 4 Lans. 47, 52, 39. Woolstein v. Welch, 42 Fed. 
 
 Johnson, J., said : " It is objected, 566. In Hudson v. Maddison, 12 
 
 on behalf of defendants, that the Sim. 416, it was held, that as each 
 
 plaintiffs, being owners of separate of several occupants of houses had 
 
 lands, and neither having any joint the right to sue separately, to re- 
 
 or common interest in the lands of strain a nuisance to each, they could 
 
 the other, or in the alleged injury, not sue jointly, on the ground " that 
 
 cannot join in an action for relief. as each of them has a separate nuis- 
 
 This is undoubtedly the general rule, ance to complain of, that which is 
 
 but it is subject to exceptions, and it an answer to the one, is not an an- 
 
 has been repeatedly held, that in case swer to the other, and if, upon such 
 
 of a private nuisance or any griev- a bill, a decree were to be pro- 
 
 ance which is common to several dis- nounced, it must be a decree which 
 
 tinct and separate owners, they may would provide for five different 
 
 unite in a single action for its re- cases." 
 
 moval, or »to be relieved from it. 40. Moore v. Hill. 59 Ga. 760. 
 
 Beid v. Gifford, Hopk. 416; Murray 41. Keese v. Denver, 10 Colo. 112, 
 
 560
 
 Parties. § 365 
 
 of a town may, on behalf of themselves and their fellow citizens 
 of the town, sue to enjoin a railroad company from proceeding to 
 condemn their land for railroad purposes. 42 And some of the tax- 
 payers of a county may, for themselves and for the benefit and use 
 of all the taxpayers of the county, maintain an action to enjoin the 
 payment, and for the cancellation, of county bonds, as being in 
 excess of the constitutional limit of county indebtedness, it being 
 impracticable to bring all the taxpayers of the county before the 
 court as plaintiffs. 43 A suit to enjoin the collection of a tax to 
 pay certain county bonds having been dismissed, it has been held 
 that some of the holders of the county bonds have the right to sue 
 upon the injunction bond for the benefit of all. 44 And the collection 
 of an entire school district tax, assessed without authority of law, 
 may be perpetually enjoined on a bill brought by all the taxpayers 
 of the district jointly, or by any number of them on behalf of 
 themselves and all the others. 45 In accordance with the rule that 
 persons having a common interest, may sue in behalf of themselves 
 and others having like interests, for purposes common and bene- 
 ficial to all, it has been held that the regularly appointed committee 
 
 15 Pac. 825, citing Bull v. Read, 13 with a court of equity, as to how 
 Gratt. (Va.) 78; Kennedy v. Troy, many representatives of a class will, 
 14 Hun (N. Y.), 308; Wood v. Dra- or ought, to be regarded as a fair 
 per, 24 Barb. (N. Y. ) 187; McClung representation of the whole class in 
 v. Livesay, 7 W. Va. 329. the given instance. We simply rule 
 
 42. Macon & B. R. Co. v. Gibson, that this is a proper case for some 
 
 85 Ga. 1, 23, 11 S. E. 442, per Bleck- of the citizens to represent all, and 
 
 ley, C. J. : " The interest being com- that the number of representatives, 
 
 mon to all, as a community, and the though the smallest that could be 
 
 citizens being numerous, some, as recognized, is not, as matter of abso- 
 
 representatives of the class, may sue lute law, insufficient." 
 
 for all. Phillips v. Hudson, L. R. 2 43. Anderson v. Orient Fire Ins. 
 
 Ch. 243; Commissioners v. Glasse, L. Co., 88 la. 579, 55 N. W. 348, where 
 
 R. 7 Ch. 456; Smith v. Swormstedt, the five plaintiffs brought the action 
 
 16 How. (U. S.) 288, 302. 14 L. Ed. for about a thousand taxpayers and 
 942. It is true, that as only two of residents having a common interest, 
 the citizens have become parties, it 44. Alexander v. Gish, 88 Ky. 13, 
 is rather a small representation of 9 S. W. 801. 
 
 the whole community. ... No 45. Carlton v. Newman. 77 Me. 
 
 doubt it is somewhat discretionary 408. 1 Atl. 194, where the action was 
 
 561 
 36
 
 §366 Parties. 
 
 of a voluntary society of Lutherans, may maintain a suit for a 
 perpetual injunction to prevent a disturbance of the possession and 
 enjoyment by the society of its premises. 46 And a bill to enjoin 
 the defendant from interfering with graves in an alleged cemetery 
 on ground belonging to the defendant may be brought in the name 
 of some of the persons whose friends are buried there, in behalf 
 of themselves and all others having a like interest. 47 And a suit 
 to enjoin the cutting of timber upon a homestead set apart for a 
 wife and her minor children is properly brought by her, for herself 
 and on behalf of them. 48 Again, where the parties interested are 
 numerous and it is impracticable to bring them all before the 
 court, and they have a common interest in the subject of litiga- 
 tion, arising from the fact that they all hold land under the con- 
 veyance which the defendant fraudulently seeks to defeat, one of 
 them may prosecute the action for the benefit of all to enjoin the 
 consummation of the fraud. 49 
 
 § 366. Injunctions against proceedings at law. — An injunc- 
 tion to stay proceedings at law should go against the party who 
 institutes them and not against the sheriff or other officer who is 
 already under the mandate of one court and should not be put in 
 peril of disobedience by discordant orders of conflicting jurisdic- 
 tions. And an assignee for the benefit of creditors should not be 
 a party for the same reasons, as he is accountable to another court 
 which has the exclusive control of his official action. And the 
 assignee and sheriff should not be joined as defendants because 
 they act in different capacities and on different rights and have 
 no joint liability nor joint interest in the relief sought. 50 Where 
 
 brought by ten taxpayers of the dis- v. Mahar, 65 Iowa, 74, 21 N. W. 187. 
 trict for themselves and the others 50. Artman-Treichler Co. v. Giles, 
 
 similarly situated. 155 Pa. St. 409. 26 Atl. 668. Lackay 
 
 46. Beatty v. Kurtz, 2 Pet. (U. v. Curtis, 6 Ired. Eq. 199, where it 
 S.) 566, 7 L. Ed. 521. was held that the bill for an injunc 
 
 47. Davidson v. Reed, 111 111. 167. tion must be dismissed with costs as 
 
 48. Pritehett v. Davis, 101 Ga. to McNeely, as he "was acting as 
 236, 28 S. E. 686. constable, a minister of the law, and 
 
 49. Palo Alto Banking & I. Co. had no interest whatever in the con- 
 
 562
 
 Pabties. § 367 
 
 a sheriff, proceeding under a writ, acts in excess of his authority 
 so as to become a trespasser in respect to the property which he 
 seizes, the owner of the property may make him a party defendant 
 in a suit for an injunction, and it is not necessary that the plain- 
 tiffs in the writ be joined as defendants, unless they have directed 
 or advised the sheriff to seize the particular property. 51 So, too, 
 where the officer is in collusion with the judgment creditor, or 
 otherwise implicated in the fraud for which a judgment is attacked, 
 he is a proper party. 52 And one who united with the vendee in 
 notes made for the purchase money of land and who is sued with 
 him thereon may join with him in a bill to enjoin proceedings 
 in the action and to rescind the contract. 53 But it has been decided 
 that separate purchasers of different parcels of the same lot cannot 
 join in a bill against the former owner, to restrain the prosecution 
 of separate ejectment suits commenced by him against the com- 
 plainants. 54 And devisees are held to have no standing prior to 
 the probate of a will to maintain a proceeding to enjoin actions 
 at law brought by the heirs at law. 55 
 
 § 367. Same subject ; joining officers. — An officer who replevies 
 goods which are under attachment should be made a party in a 
 suit to restrain further proceedings in the replevin, as should also 
 the officer who made the attachment, in order that they may both 
 
 troversy, and it was wrong to put a party defendant to a bill for an in- 
 
 him to the expense of filing an an- junction to restrain the execution of 
 
 swer " — per Pearson, J., citing Edney such order or judgment. McLane v. 
 
 v. King, 4 Ired. Eq. 474. Compare Manning, 60 N. C. 60. 
 
 Meinhard v. Youngblood, 37 S. C. 51. North v. Peters, 138 U. S. 
 
 223, 15 S. E. 947. 271, 284, 11 S. Ct. 346, 34 L. Ed. 
 
 A sheriff is not a necessary 936. 
 
 or proper party to a bill for an 52. Allen v. Medill, 14 Ohio, 445; 
 
 injunction merely because he has in Olin v. Hungerford, 10 Ohio, 268. 
 
 his hands the execution sought to be 53. Elliott v. Boaz, 9 Ala. 772. 
 
 enjoined. Shrader v. Walker, 8 Ala. 54. Wood v. Perry, 1 Barb. (N. 
 
 244. Y.) 114. 
 
 A person acting r.s an officer 55. Pratt v. Hargreaves, 76 Miss. 
 
 of the law under a judicial order 955. 25 So. 658, 71 Am. St. Rep. 551. 
 or judgment ought not to be made 
 
 563
 
 § 367 
 
 Parties. 
 
 be bound by the judgment, and be protected by it. 56 In a case in 
 Rhode Island it is decided that a citizen of that State may, as 
 assignee for the benefit of creditors, file a bill in equity in Rhode 
 Island against a Massachusetts creditor of the assignor, who had 
 obtained an execution, and the officer charged with the execution, 
 who is a citizen of Rhode Island, to establish his trust and to 
 enjoin the sale of the trust property levied on under the execu- 
 tion. 57 But it is held to be improper to make the probate judge 
 
 56. National Park Bank v. God- 
 dard, 131 N. Y. 494, 30 N. E. 566; 
 aff'g 16 N. Y. Supp. 343. See, also, 
 Brown v. Trousdale, 138 U. S. 389, 
 11 S. Ct. 308, 34 L. Ed. 987, where 
 it was held that " as the plaintiffs 
 sought to restrain the collection of 
 taxes already levied and any further 
 levies by the county judge, and also 
 a decree adjudging the invalidity of 
 the bonds, the sheriff, who was about 
 to enforce the collection, and the 
 county judge were necessary parties 
 to the bill as framed, as were the 
 bondholders whose interests were di- 
 rectly affected." 
 
 In an action to restrain pro- 
 ceedings under an attachment, 
 the officer having the execution of 
 the attachments is a proper party 
 defendant. Meinhard v. Youngblood, 
 37 S. C. 223, 15 S. E. 947. 
 
 On bills to restrain the exe- 
 cution of process or the per- 
 formance of official acts, the 
 sheriff is made a party, as the de- 
 sign of the injunction is to restrain 
 him from acting; but where no re- 
 lief is prayed and no decree asked 
 against the officer, it is not necessary 
 nor usually expedient for the sheriff 
 to answer. If the sheriff's statement 
 is deemed material/ for the interests 
 of the defendants, it may be ap- 
 pended as an affidavit to the answer, 
 
 to be used on the motion to dissolve, 
 or his testimony may be taken by 
 leave of the court, in the progress of 
 the cause. Brooks v. Lewis, 13 N. J. 
 Eq. 214, 215. 
 
 A commissioner, abont to 
 make a judicial sale, is a proper 
 party to a suit to enjoin the sale. 
 Robertson v. Tapscott, 81 Va. 533. 
 
 Register of land office as 
 party. See Lyne v. Jackson, 1 
 Rand. (Va.) 119, where, in order to 
 prevent the issuing of a patent by 
 the register of the land office, the 
 register was held to be a proper 
 party defendant. 
 
 57. Nye v. Nightingale, 6 R. I. 
 439. per Ames, C. J.: "He (the of- 
 ficer) is no formal or unnecessary 
 party, as has been suggested, whose 
 presence a court can disregard in 
 considering this question of juris- 
 diction; but one within the criterion 
 recognized in the case of James v. 
 Thurston, 6 R. I. 428, against whom 
 a decree is asked, and must be had 
 in order to the direct and effectual 
 relief by injunction, to which the 
 plaintiff, as trustee, is entitled. 
 Neither is he an official party merely 
 within the cases relied on, who rep- 
 resents, by virtue of some special 
 law, the interests of aliens and citi- 
 zens of other States. He is not pur- 
 sued in his official, but in his per- 
 
 564
 
 Parties. § 367a 
 
 a defendant to a bill in chancery which seeks to enjoin the settle- 
 ment of an estate pending in his court. 58 
 
 § 367a. Joining officers continued. — Where a tax collector of a 
 county has levied upon property, for payment of the taxes due, and 
 has advertised the same for sale, it is proper to make him a party 
 defendant to a bill enjoining the sale. 59 And park commissioners 
 should be made parties to a bill in which it is sought to enjoin the 
 extension by the county clerk of a tax for a park and boulevard 
 purposes, the bill being grounded on the claim that the commis- 
 sioners had no power to levy such tax. 60 And where the mayor of 
 a city was authorized by ordinance to guarantee certain bonds " by 
 and with the advice of the committee of the city debt " it was held 
 proper to make such committee parties to a bill in equity by tax- 
 payers to enjoin the guaranty of such bonds. 61 And in Illinois it 
 has been decided that the president of the board of county com- 
 missioners of Cook county and the treasurer of that county are 
 necessary parties to a suit to prevent an injury to taxpayers, such 
 as the use of the county funds in paying the sheriff for the diet 
 of prisoners in the jail. 62 
 
 sonal character, as one who is about ant's property under execution, the 
 
 to commit a wrong under the false sheriff charged with the execution is 
 
 pretense of official action. In his of- bound to obey the injunction though 
 
 ficial character a court of equity has not made a party to the injunction 
 
 no control over him whatsoever; suit, for the failure to include him 
 
 but, notwithstanding that character, in the suit is a merely lormal defect 
 
 if he assumes a power over property which does not absolve him from the 
 
 which the law does not give him, duty to obey the injunction. Buf- 
 
 considers him as no longer acting fandeau v. Edmondson, 17 Cal. 436. 
 
 under the authority of his commis- 58. McNeills' Adm'r v. McNeills' 
 
 sion, and treats him as a person Creditors, 36 Ala. 109, 76 Am. Dec. 
 
 merely dealing with property with- 320. 
 
 out any authority whatsoever, as a 59. Anderson v. State 23 Miss, 
 
 mere trespasser to be personally and 459. 
 
 not officially pursued for his tres- 60. Knopf v. First Nat. Bank, 
 
 passes. Greene v. Mumford, 5 R. I. 173 111. 331, 50 N. E. 660; Knopf v. 
 
 475." Where a defendant obtains an Chicago Real Estate Board, 173 111. 
 
 injunction from the court which has 196, 50 N. E. 658. 
 
 rendered judgment against him re- 61. Goddard v. City of Provi- 
 
 straining the plaintiff, his agents, dence, 18 R. I. 536, 28 Atl. 765. 
 
 etc., from proceeding to sell defend- 62. Bradley v. Gilbert, 46 111. 
 
 565
 
 368 
 
 Paeties. 
 
 § 368. Joinder of defendants ; nuisance. — Where several per- 
 sons, though acting independently, contribute to the creation of a 
 nuisance, as, for instance, where several mill owners cast the refuse 
 from their mills into the same stream, which, being commingled, 
 is then carried by the natural current upon the complainant's 
 premises, there is in equity but one cause of action, and they may 
 be joined as defendants in the same bill to enjoin the nuisance, 
 if the complainant is entitled to equitable relief. 63 And the object 
 of such a bill being single, that is, to obtain relief from the common 
 
 App. 623, aff'd 155 111. 154, 39 N. E. 
 593. 
 
 63. Lockwood Company v. Law- 
 rence, 77 Me. 297, per Foster, J.: 
 " The acts of the defendants may be 
 independent and several, but the re- 
 sult of these several acts combines 
 to produce whatever injury these 
 complainants suffer, and in equity, 
 constitutes but one cause of action. 
 It is otherwise in law where dam- 
 ages are sought to be recovered. 
 There, only those parties can be 
 joined who have acted jointly in the 
 commission of the act." In Wood- 
 ruff v. North Bloomfield Gravel Co., 
 8 Sawyer 628, it is said " there is a 
 great difference between seeking to 
 recover damages at law for an in- 
 jury already inflicted by several 
 parties acting independently of each 
 other, and restraining parties from 
 committing a nuisance in the future. 
 In equity the court is not tied down 
 to one particular form of judgment. 
 It can adapt its decrees to the cir- 
 cumstances in each case and give the 
 proper relief as against each party 
 without reference to the action of 
 others and without injury to either." 
 See, also, Blaisdell v. Stephens, 14 
 Nev. 17; Hillman v. Newington, 57 
 Cal. 56, overruling Keyes v. Little 
 York Gold Co., 53 Cal. 724. The 
 
 same principle is expressly recog- 
 nized in Chipman v. Palmer, 77 N. Y. 
 56, where the court says that " an 
 equitable action will lie to restrain 
 parties who severally contribute to a 
 nuisance," while it holds that they 
 cannot be joined in an action at law. 
 To the same point are Duke of Buc- 
 cleugh v. Cowan, 5 Macph. 214; 
 Crossley v. Lightowler. L. R. 3 Eq. 
 279; Thorpe v. Brumfitt, L. R. 8 Ch. 
 App. 650. In the last case a bill was 
 sustained and a decree granting a 
 perpetual injunction affirmed against 
 several persons acting individually 
 and severally in obstructing the 
 passage to an inn by loading and un- 
 loading wagons. Lord Justice James 
 said : " Then it was said that the 
 plaintiff alleges an obstruction caused 
 by several persons acting indepen- 
 dently of each other, and does not 
 show what share each had in causing 
 it. It is probably impossible for a 
 person in the plaintiff's position to 
 show this. Nor do I think it neces- 
 sary that he should show it. The 
 amount of obstruction caused by any 
 one of them might not, if it stood 
 alone, be sufficient to give any ground 
 of complaint, though the amount 
 caused by them all may be a serious 
 injury." 
 
 566
 
 Pasties. 
 
 §369 
 
 nuisance, it is not multifarious, though the defendants may have 
 separate and diverse interests. 64 
 
 § 369. Same subject; bills of peace. — A bill in equity, in which 
 an injunction is sought against numerous defendants, in a case 
 where the rights of all of them depend upon identically the same 
 question, both of fact and law, and where a court of equity alone 
 can prevent irreparable injury to complainant, may be sustained 
 as a bill of peace, upon the ground of the inherent jurisdiction of 
 equity to interpose for the purpose of preventing a multiplicity of 
 suits. In such case, the parties, instead of being severally sued 
 in equity, may be joined as defendants in the same suit and jointly 
 enjoined. 65 In an action by some of the taxpayers of a county, in 
 
 64. Lockwood, Company v. Law- 
 rence, 77 Me. 297, 310, per Foster, 
 J. : " Here the same relief is asked 
 against all; the same common right 
 is claimed; the same general acts are 
 alleged against all as contributing to 
 the same nuisance. When the object 
 of the bill is single, to establish and 
 obtain relief for one claim, in which 
 all the respondents may be interested, 
 it is not multifarious, though the re- 
 spondents may have different and sep- 
 arate interests. Bugbee v. Sargent, 
 23 Me. 269; Brinkerhoff v. Brown, 6 
 Johns. Ch. (N. Y.) 157. If the mat- 
 ters are in any material degree 
 blended so that directly or indirectly 
 they concern all the respondents, the 
 bill is not multifarious. Drewry, 
 Eq. PI. 42. In Campbell v. Mackay, 
 1 M. & C. 603, Lord Cottenham held 
 that where the plaintiffs have a com- 
 mon interest against all the defend- 
 ants in a suit as to one or more of 
 the questions raised by it so as to 
 make them all necessary parties for 
 the purpose of enforcing that com- 
 mon interest, the circumstance of 
 some of the defendants being subject 
 to distinct liabilities, in respect to 
 the different branches of the subject- 
 
 matter, will not render the bill mul- 
 tifarious. Also Gaines v. Chew, 2 
 How. (U. S.) 642. 11 L. Ed. 402." 
 
 65. Farmington Village v. Sandy 
 River Nat. Bank, 85 Me. 46, 26 Atl. 
 Rep. 965, per Foster, J. : " The bill is 
 in the nature of a bill of ipeace 
 where, if the complainant is entitled 
 to relief, it may be sustained in order 
 to prevent a multiplicity of suits by 
 parties whose rights depend upon the 
 same question involved in the general 
 controversy." Citing Woodruff v. 
 Mining Co., 16 Fed. 25; Lockwood 
 Company v. Lawrence, 77 Me. 297; 
 Carlton v. Newman, 77 Me. 408, 1 
 Atl. 194; Waterworks v. Yeomans, L. 
 R. 2 Ch. App. 8, 12 ; Brown v. Trous- 
 dale, 138 U. S. 389, 11 S. Ct. 308, 34 
 L. Ed. 987; Winsor v. Bailey, 55 N. 
 H. 218. 221. See, also, Harter v. 
 Kernochan, 103 U. S. 562, 26 L. Ed. 
 411, where a township in Illinois, 
 and a taxpayer on behalf of himself 
 and other resident taxpayers, filed 
 their bill to restrain the State treas- 
 urer and auditor, the county clerk 
 and treasurer, the township collector, 
 supervisor and clerk and two justices 
 of the township and the " unknown 
 owners and holders " of certain. 
 
 56'
 
 § 370 Pabties. 
 
 behalf of themselves and the other taxpayers, to enjoin the pay- 
 ment of county bonds by county officers, as being in excess of the 
 constitutional limit of county indebtedness, the county is not an 
 indispensable party defendant, where there is no attempt to divest 
 it of a right, or impose upon it an obligation; 66 but aliter of course 
 if the property rights of the county are in any respect assailed. 67 
 
 § 370. Same subject ; frauds. — In an action in the nature of 
 a creditor's suit, by an assignee of a judgment, to enforce pay- 
 ment, where one of the original judgment plaintiffs has claimed 
 the entire judgment and executed a release of it, it is proper to 
 make such a joinder of defendants that the release may be cancelled 
 if fraudulent. 68 Where the object of a suit is single in seeking only 
 the satisfaction of the complainant's demand out of his debtor's 
 property, which is alleged to have been fraudulently conveyed, 
 it is no objection that the different defendants have separate in- 
 terests in distinct and independent questions, provided those 
 interests are all connected with, and arise out of, the single object 
 of the suit ; 6!> and in such a case the bill is not multifarious, because 
 
 bonds, from the collection of a tax parties, never intending to pay for 
 
 to pay the said bonds, on the ground the same, and that this firm fraudu- 
 
 that the issue of the bonds was unau- lently mortgaged the goods so ob- 
 
 thorized. tained to the other defendants, who 
 
 66. Anderson v. Orient Fire Ins. had conspired and colluded with the 
 Co., 88 la. 579, 55 N. W. 348. firm in carrying out the fraudulent 
 
 67. Moore v. Held, 73 Iowa, 537, scheme by which the goods were ob- 
 35 N. W. G23 ; Turner v. Cruzen, 70 tained, it cannot be seriously con- 
 Iowa, 202, 30 N. W. 483. tended that there was any misjoinder 
 
 68. Bragg v. Gaynor, 85 Wis. of defendants. Each and all of the 
 468, 55 N. W. 919. defendants were necessary and 
 
 69. Handley v. Heflin, 84 Ala. proper parties to any proceeding in- 
 600, 4 So. 725; Hinds v. Hinds, 80 stituted for setting aside the frauds 
 Ala. 225; Russell v. Garrett, 75 Ala. complained of. The mortgagees were, 
 348; Randle v. Boyd, 73 Ala. 282. as such, necessary and proper par- 
 Cohen v. Wolff, 92 Ga. 199, 17 S. E. ties, because they were entitled to j, 
 1029, per Simmons, J.: " In view of be heard upon the question of setting 
 the charges, that the firm of Wolff & the mortgages aside, and, moreover, 
 Co. being insolvent, fraudulently pro- it was alleged, as has been seen, that 
 cured for themselves a false commer- they were co-conspirators from the 
 cial rating, and upon the credit thus very incipiency of the fraudulent 
 obtained bought goods from various scheme." 
 
 568
 
 Pakties. §371 
 
 it joins as defendants several fraudulent grantees, or donees who 
 claim different portions of the debtor's property by distinct con- 
 veyances. 70 Persons jointly implicated in fraudulent acts may be 
 joined as defendants, and as such enjoined, though the gains they 
 realize by such acts are several. 71 Fraudulent grantees may be 
 joined as defendants, though they hold by separate conveyances, 
 and are not connected in interest with each other. 72 And one who 
 is about to receive a conveyance of land, in consummation of a 
 conspiracy to defraud the true owner thereof, is a proper party 
 defendant to an injunction suit to defeat the conspiracy. 73 Where 
 the president and secretary of a natural gas company, with the 
 consent of only one director, and without authority give a person 
 permission to take gas from a well, free of charge, they, the con- 
 senting director, and the person receiving the permit, are joint 
 wrongdoers, and as such may be jointly enjoined. 74 
 
 § 371. Joinder of patent owner as defendant where licensee 
 sues. — A licensee, having the exclusive right to manufacture and 
 sell a patented article, may enjoin the owner of the patent from an 
 infringement, and may join with him, as defendants, all others 
 who may confederate with him in the infringement; but he can- 
 
 70. Collins v. Stix (Ala. 1892), 71. Andrews v. Pratt, 44 Cal. 309, 
 
 11 So. 380, where the court said: "A per Niles, J.: "The gist of the 
 
 fraudulent grantee cannot complain action is fraud. The defendants have 
 
 that he is joined with other fraudu- one common interest among them all, 
 
 lent grantees, among whom the centering in the point in issue in this 
 
 debtor has scattered the various par- cause, and which is not severed by 
 
 eels of his property in the execution the mere division of the gains. Ward 
 
 of his scheme to hinder, delay, or de- v. Duke, etc., 2 Ans. 469; Fellows v. 
 
 fraud his creditors. It would Fellows, 4 Cow. (N. Y.). 682; Brink- 
 
 greatly aid in the accomplishment of erhoff v. Brown, 6 Johns. Ch. (N. Y.) 
 
 the fraudulent purpose, if the de- 139." 
 
 frauded creditor was forced to bring 72. Hamlin v. Wright, 23 Wis. 
 
 a separate suit to follow each parcel 491. 
 
 in the hands of the person who had 73. Palo Alto Banking & I. Co. v. 
 
 wrongfully acquired it. It is neces- Mahar, 65 Iowa, 74, 21 N. W. 187. 
 
 sary, for the due protection of cred- 74. Henshaw v. People's Mutual 
 
 itors, that they be enabled to attack Natural Gas Co., 132 Ind. 545, 32 N. 
 
 the whole fraudulent scheme in one E. 318. 
 suit." 
 
 569
 
 372 
 
 Pabties. 
 
 not enjoin such third persons, unless the owner of the patent be 
 made a party, either as plaintiff or defendant. 75 
 
 § 372. Joinder of plaintiffs at law as defendants in equity. — 
 
 The fact that a number of actions at law arise from the same occur- 
 rence, and depend upon the same matters of fact and law, is not 
 sufficient, unless the plaintiffs have a common interest, to warrant 
 the enjoining of the several actions and a joinder of the several 
 plaintiffs, in a single suit in equity, as defendants, in order to 
 prevent a multiplicity of suits. This rule was applied in Missis- 
 sippi, where several different premises were set on fire by sparks 
 from a railroad engine, and the company enjoined the different 
 owners from proceeding with their several actions for damages, 
 
 75. Waterman v. Shipman, 55 
 Fed. 982 } 986, per Wallace, J.: "If 
 the owner of the legal title to the 
 patent had not been made a party to 
 the suit, undoubtedly the bill by the 
 complainant could not be sustained 
 against the other defendants. A 
 mere licensee cannot sue strangers 
 who infringe. In such a case, re- 
 dress is obtained through, or in the 
 name of the owner of the patent. But 
 there is no reason or authority for 
 the proposition that a licensee who 
 has the exclusive right to manu- 
 facture and sell a patented article, 
 cannot maintain a suit in equity 
 against the owner of the patent, if 
 the latter is guilty of an infringe- 
 ment, by making or selling himself, 
 to redress the wrong occasioned 
 thereby, or that such a suit does not 
 arise under the patent laws of the 
 United States. The case of Little- 
 field v. Perry, 21 Wall. 205, 
 223, 22 L. Ed. 577. is a direct 
 authority in favor of the right 
 of the licensee to maintain such an 
 action. In that case the Supreme 
 Court said: ' A court of equity looks 
 to substance, rather than form. When 
 
 it has jurisdiction of the parties, it 
 grants the appropriate relief, with- 
 out regard to whether they come as 
 plaintiff or defendant. In this case, 
 the person who should have protected 
 the defendant against all infringe- 
 ments has become himself the in- 
 fringer. He held the legal title to 
 the patent in trust for his licensees. 
 He has been faithless to his trust, 
 and courts of equity are always open 
 for the redress of such a wrong. 
 This wrong is an infringement. Its 
 redress involves a suit, therefore, 
 arising under the patent laws; and 
 of that suit the Circuit Court has 
 jurisdiction.' If the licensees' rights 
 have been infringed by the owner, 
 and third persons confederating with 
 the owner, there is no reason why all 
 the infringers should not be joined 
 as defendants. Perry v. Littlefield, 17 
 Blatchf. 272, 285. In such a case it 
 is quite immaterial to the other de- 
 fendants whether the owner, when 
 made a party to the suit, is a com- 
 plainant or a defendant. It suffices, 
 so far as they are concerned, that all 
 the parties are present who have any 
 interest in the controversy, and that 
 
 70
 
 Pabties. § 373 
 
 and joined them as defendants in a single suit in equity. 76 In a 
 bill for an injunction against the enforcement of a judgment, 
 affecting realty, all the holders of the judgment must be made 
 parties defendant, as a different practice would serve to complicate 
 the execution of the judgment, and to produce multiplicity of 
 suits. 77 But owners of several judgments cannot be joined as de- 
 fendants to restrain sale under each. 78 
 
 § 373. Defect of parties defendant. — While a temporary in- 
 junction may sometimes be issued against a merely nominal party, 
 to restrain him from doing something that may affect the plain- 
 tiff's rights, before service can be had upon the real party with 
 adverse interests, yet no attempt should be made by a plaintiff, 
 however futile it may prove eventually, to adjudicate upon the 
 ultimate rights of the real parties in interest, without making 
 them parties defendant. Thus, in an action by the State of Kansas 
 to perpetually enjoin a city and its officers and certain county 
 officers from collecting taxes to pay interest on certain city bonds 
 and to have the bonds declared null and void, there was held to 
 be a defect of parties defendant, because the bondholders were not 
 joined, as they alone were the only persons whose rights would be 
 substantially affected by declaring the bonds to be invalid, or by 
 enjoining the tax for the payment of accrued interest, and that 
 the other defendants had no interest in having the bonds declared 
 valid. 79 And the court refused to finally enjoin the treasurer and 
 sheriff of a county from the collection of taxes levied by a school 
 district, because the officers of the school district directly interested 
 
 a decree will definitely determine penter v. Hindman, 32 Kan. 601, 
 
 their rights as between themselves 607; and see Wiser v. Blachly, 
 
 and the owner of the patent, as well 1 Johns. Ch. 438. In State v. Ander- 
 
 as between themselves and the com- son, 5 Kan. 90, which was a suit to 
 
 plainant." enjoin the State treasurer from pay- 
 
 76. Tribbette v. Illinois Central ing over the proceeds of land sales to 
 It. Co.. 70 Miss. 182, 12 So. 32. certain railroad companies, it was 
 
 77. Berry v. Berry, 3 Monroe held that a final injunction would not 
 (Kv.), 263. De granted until the railroad com- 
 
 78. Gates v. Lane, 44 Cal. 392. panies were made parties defendant, 
 
 79. City of Anthony v. State, as they were the real parties in in- 
 49 Kan. 246, 30 Pac. 488; Jar- terest. 
 
 571
 
 § 373 Pabties. 
 
 in the collection of the taxes were not made parties defendant. 80 
 And where abutting owners bring an action against the county 
 clerk and county treasurer, to enjoin the collection of an assess- 
 ment levied by a city, the city must be joined as a defendant. 81 
 And in a proceeding to restrain the collection of an assessment, 
 the contractor who did the work for which the assessment was 
 made is a proper and necessary party, as he could look only to this 
 assessment for his compensation, and had a right to be in court to 
 defend his interest. 82 But a railroad company is not a necessary 
 party defendant in an action by a township against county com- 
 missioners and the county clerk, to perpetually enjoin them, as 
 agents of the township, from subscribing to the stock of the com- 
 pany, and executing township bonds in payment for the stock, 
 under the pretended authority of a special election, where it is 
 alleged that the conditions precedent to the power to call the elec- 
 tion and make the subscription were not complied with, for in 
 such a case the rights of the company are not adjudicated. 83 And 
 a demurrer to a complaint for an injunction for defect of parties 
 defendant which is merely technical will not be sustained unless 
 the omitted party is indispensable to the relief sought. 84 
 
 80. Atchison, etc., R. Co. v. Wil- road company, and as it is clearly 
 helm, 33 Kan. 206. In the similar alleged in the petition that no sub- 
 case of Voss v. School District, 18 scription had been made, and that 
 Kan. 467, it was held that the treas- the purpose of the action was to en- 
 urer and sheriff were merely nom- join a wrongful and illegal subscrip- 
 inal parties, while the school district tion, we do not think the company 
 was the real party in interest and was a necessary party in the action, 
 properly joined as defendant. See, Of course, the company cannot be af- 
 also, on the same point, Hays v. Hill, fected by any of these proceedings, 
 17 Kan. 360. because the law before it decides 
 
 81. Gilmore v. Norton, 10 Kan. against any party or person gives an 
 491 ; Gilmore v. Fox, 10 Kan. 509. opportunity for such person to be 
 
 82. Matter of Bridgford, 47 N. Y. heard. Land Grant R. Co. v. Com- 
 St. Rep. 676. missioners, etc, 6 Kan. 256; Paola. 
 
 83. Dixon Township v. Commis- etc., R. Co. v. Com'rs, 16 Kan. 302; 
 sioners, etc., 25 Kan. 519, per Hor- Atchison, etc., R. Co. v. Com'rs, 12 
 ton, C. J. : " The election or vote to Kan. 127." 
 
 subscribe for stock did not constitute 84. Hughson v. Crane, 115 Cal. 
 
 or form any contract with the rail- 404, 47 Pac. 120. 
 
 572
 
 Pabties. 
 
 374 
 
 § 374. Dismissal for want of necessary parties. — Where it 
 appears from the record that the merits of an injunction suit 
 cannot be determined without essentially affecting the rights of 
 persons in the subject matter who are not parties, and whose names 
 do not appear in the record, the court of last resort will refuse, 
 on appeal, to examine the facts, and will dismiss the complaint for 
 want of parties, though the court of first instance could and should, 
 in such a case, have ordered the necessary parties to be brought in. 85 
 A bill by taxpayers to restrain the payment of money by a village, 
 under a contract, is fatally defective in not making the person 
 entitled to the payment, or his successor in interest, a party 
 thereto, as in such case the person entitled to payment would not 
 be concluded by a decree against the village, and therefore it would 
 be subject to further litigation. 86 
 
 85. Beasley v. Shively, 20 Or. 508, 
 26 Pac. 846. This was a suit to en- 
 join the construction of a wharf, and 
 on appeal to the Supreme Court it 
 was held it must be dismissed because 
 the land-owners in front of the whari 
 were not parties, citing Russell v. 
 Clark, 7 Cranch, 69; Young v. Cush- 
 ing, 4 Biss. 456. Bean, J., said: 
 " The better practice in the Circuit 
 Courts is to order the necessary 
 parties to be brought in; but we 
 have no such authority, and could 
 only in a proper case, and where the 
 equities justify, remand the cause to 
 the court below for that purpose. 
 . . . We do not feel justified to 
 remand this case to the court below 
 for the purpose of having parties 
 brought in. Nor does it matter that 
 the parties to this suit make no ob- 
 jection on account of a want of par- 
 ties. Where that fact appears, as in 
 this case, the court will, on its own 
 motion, refuse to proceed further in 
 the case. A decision of the case now 
 before us in favor of either of the 
 parties would, in effect, be an adjudi- 
 cation that the tide land-owner does 
 not have the right to construct 
 
 wharves in front of his property, a 
 question we are unwilling to examine 
 on this record." In Morgan v. Rose, 
 22 N. J. Eq. 583, 592, Beasley, C. J., 
 said: "The non-joinder of an es- 
 sential party does not necessarily lead 
 to the dissolution of an injunction; 
 the general rule is that it will have 
 that effect, but such rule is not uni- 
 versal. ... I think the true 
 principle is, that when the injunc- 
 tion will have the effect of injuring, 
 in any material respect, the rights of 
 absent persons, the court will not, 
 unless in case of special necessity, 
 interfere with such rights, but that 
 when the absence of persons as par- 
 ties constitutes, so far as the grant- 
 ing or refusing of the injunction is 
 concerned, a formal rather than a 
 substantial defect, there is no ground, 
 arising from such fact, for a refusal 
 of the temporary aid of the court, if 
 such aid appears, under the circum- 
 stances, to be equitable." Adopted 
 in Elkins v. Camden, etc.. R. Co., 36 
 N. J. Eq. 241. 
 
 86. Hoppock v. Chambers, 96 Mich. 
 509, 56 N. W. 86. 
 
 573
 
 Appeals. 
 
 CHAPTER XL 
 
 Appeals. 
 
 Section 375. Useless appeals. 
 
 376. Restricting and protecting appeals. 
 
 377. Who may appeal. 
 
 378. Injunction order operating as final decree. 
 
 379. Appeals in Alabama. 
 
 380. In Arizona — Arkansas. 
 
 381. In California, Colorado, Dakota. 
 
 382. In Delaware, District of Columbia and Florida. 
 
 383. In Georgia. 
 
 384. In Illinois. 
 
 385. In Indiana. 
 
 385a. In Iowa — Kansas. 
 385b. In Kentucky. 
 
 386. In Louisiana. 
 
 387. In Maryland. 
 387a. In Michigan. 
 387b. In Minnesota. 
 387c. In Missouri. 
 
 388. In Montana. 
 388a. In Nebraska. 
 
 389. In New Jersey. 
 
 390. In New York. 
 
 390a. In North Carolina — In North Dakota. 
 
 391. In Ohio, Oklahoma, Pennsylvania. 
 
 392. In South Carolina. 
 392a. In Texas— Utah. 
 
 393. In Virginia. 
 393a. In Washington. 
 
 394. In Wisconsin. 
 
 395. Appealable decrees in Federal courts. 
 
 396. Appeals to Circuit Court of Appeals. 
 
 397. Same subject — Assignment of errors. 
 
 398. Reversals by the Federal Circuit Court of Appeals. 
 
 399. Joinder of joint defendants in writ of error — Federal rule. 
 
 400. Effect of appeal— Federal rule — Stay pending appeal. 
 
 401. In Alabama — Arkansas. 
 401a. In California. 
 
 402. In Florida. 
 
 402a. In Georgia — Illinois. 
 402b. In Iowa. 
 402c. In Louisiana. 
 
 574
 
 Appeals. § 375 
 
 402d. In Michigan — Minnesota — Montana. 
 
 403. In New Jersey. 
 
 404. In New Jersey, continued. 
 
 405. In New York. 
 
 406. In North Carolina — Ohio. 
 406a. In Texas. 
 
 406b. In Washington. 
 
 406c. In West Virginia — Wisconsin. 
 
 406d. In England. 
 
 407. Appeals from decree dismissing bill. 
 
 408. Objections barred on appeals. 
 
 409. Appeal record. 
 
 410. Conclusiveness of findings. 
 
 410a. Scope of review by Appellate Court. 
 
 411. Appeal or mandamus. 
 
 Section 375. Useless appeals. — A court of equity, as before 
 seen, does not exercise its jurisdiction for the purpose of discussing 
 abstract or academic questions ; J and an appeal will not ordinarily 
 be entertained from an injunction order where the matter to which 
 it relates is wholly past and irrevocable. 2 But the right of appeal 
 from the denial of a preliminary injunction is not taken away 
 by the fact that the act sought to be enjoined has been accom- 
 plished, thus rendering an order of reversal inefficacious ; in such 
 a case the appellate court may hear the appeal and adjudge the 
 right upon which the preliminary injunction should have been 
 granted. 8 The judgment of a court refusing an injunction, though 
 
 1. § 50, ante. could have no practical effect, and 
 
 2. See § 41, ante, as to injunctive therefore the appeal was dismissed, 
 relief for past acts. In the Matter of O'Brien, J., said: " The demands of 
 Manning, 139 N. Y. 446, 34 N. E. actual practical litigation are too 
 931. In this case on appeal from an pressing to permit the examination 
 order of the general term, which re- or discussion of academic questions, 
 versed a special term order granting such as this case in its present situa- 
 a mandamus, requiring the mayor of tion presents. People v. Phillips, 67 
 Albany to publish lists of inspectors N. Y. 582; People v. Walter, 68 N. Y. 
 etc., as prescribed by law, it was held 408 ; People v. Troy, 82 N. Y. 575 ; 
 by the Court of Appeals that, as the Bryant v. Thompson. 128 N. Y. 426, 
 power of persons so appointed ex- 28 N. E. 522. 
 
 pired immediately after the election 3. Terhune v. Midland R. Co., 36 
 
 was held, for which the appointment N. J. Eq. 318. 
 was made, any decision on the appeal 
 
 575
 
 § 376 Appeals. 
 
 erroneous when made, will not be interfered with on appeal, when 
 the act sought to be enjoined has been authorized by the Legislature 
 between the rendering of the judgment and the hearing of the 
 appeal. 4 
 
 § 376. Restricting and protecting appeals. — An injunction may 
 not be granted where the effect would be practically to permit an 
 appeal in cases in which the statute refuses it. 5 And an injunction 
 should not be granted where the appropriate and only proper 
 remedy is by appeal. Thus, an order of a County Court establish- 
 ing a ferry, is a judicial act, which cannot be set aside except on 
 an appeal, and the exercise of the privilege conferred thereby can- 
 not be prevented or restrained by an order of injunction issued by 
 another court in an independent and distinct action or proceeding. 6 
 And where a motion to continue a temporary injunction is denied 
 on the merits, a second application, without obtaining leave to 
 renew, will not ordinarily be entertained by another judge of the 
 same court, for this would be asking one judge to sit in appeal 
 from the decision of another judge of the same court. 7 And a court 
 
 4. Linn County v. Hewitt, 55 Iowa, said : " It is directly in the teeth 
 505, 8 N. W. 340. of the statute to use this or any other 
 
 General Note. — As to action for method of having the judgment set 
 
 damages on an injunction bond pcnd- aside which the statute intended 
 
 ing appeal from an order of dissolu- should be final." 
 
 tion, see § 183, ante. As to allow- 6. Stahl v. Brown, 84 Ky. 325, 1 
 ance to defendant as damages of S. W. 540. and see § 29, ante. 
 counsel fees on appeal, see § 202, 7. Williams v. Huber, 25 N. Y. 
 ante. As to reference to ascertain in- Supp. 327, per McAdams, J.: "No 
 junction damages pending an appeal, legal ground for reargument was 
 eee § 226. ante. As to appeal from made to appear, and Judge Gilder- 
 order confirming referee's report as sleeve could not be expected to re- 
 to damages, see § 244, ante. As to consider questions which the chief 
 appeals from orders in contempt pro- judge had already decided adversely 
 ceedings, see §§ 283, 284, ante. to plaintiff. This would be to allow 
 
 5. Odom v. McMahan, 67 Tex. 292, an appeal from one co-ordinate court 
 3 S. W. 286. The rule in this case to another — a 'practice neither en- 
 was applied to a justice's judgment, couraged nor sanctioned. People v. 
 the enforcement of which was en- National Trust Co., 31 Hun (N. Y.), 
 joined though the statute made it 20 ; Mayer v. Apfel, 32 N. Y. Super, 
 non-appealable, and as Willie, C. J., 729; Hallgarten v. Eckert, 1 Hun (N. 
 
 576
 
 Appeals. 
 
 §377 
 
 of equity will not entertain a bill to restrain prosecutions under a 
 municipal ordinance on the ground of the alleged illegality of such 
 ordinance. The validity of the ordinance can only be tested by 
 appeal from a fine imposed under it. 8 Where, through inadvert- 
 ence, a judgment erroneously includes costs, the remedy is not by 
 injunction, but by appeal. 9 
 
 § 377. Who may appeal. — Where a defendant, who has been 
 enjoined, transfers his interest in the subject matter of the contro- 
 versy, it is proper that an appeal be taken for, and on behalf of 
 the transferee, in the name of the original defendant, 10 and in the 
 absence of any showing to the contrary, an appeal will be presumed 
 to have been so taken. 11 Under the Missouri statute, giving the 
 right of appeal " to every person aggrieved by any final judgment 
 or decision of any Circuit Court in any civil cause," the sureties 
 on an injunction bond have the right to prosecute an appeal from 
 a judgment rendered on a bond for damages against the principal 
 alone. 12 This decision was founded upon the rule that the sureties 
 
 Y.), 117; Worman v. Frankish, 11 
 N. Y. Supp. 351; In re May, 49 L. 
 T. (N. S.) 770." 
 
 8. Skakel v. Roche, 27 111. App. 
 423. The enforcement of the ordi- 
 nances of New Orleans being by the 
 Constitution and laws of the State, 
 vested in the recorder's court of that 
 city, the validity of penal ordinances 
 must be tested in that court, and on 
 appeal therefrom, and the owner of 
 property improved and used as a 
 dairy cannot enjoin the enforcement 
 by authorized judicial process of an 
 ordinance requiring all dairies to be 
 removed from within certain limits. 
 Hottinger v. City of New Orleans, 42 
 La. Ann. 629, 8 So. 575. 
 
 9. Nicklin v. Hobin, 13 Or. 406, 
 10 Pac. 835. 
 
 10. Heilbron v. Land & Water 
 Company, 96 Cal. 7, 30 Pac. 802. An 
 appeal must be dismissed, on its ap- 
 
 pearing that appellant had no inter- 
 est in the matter of the order ap- 
 pealed from, or that he had been in- 
 jured thereby. Glenn v. Reid, 74 Md. 
 238, 24 Atl. 155. 
 
 11. Malone v. Big Flat Gravel 
 Min. Co., 93 Cal. 384, 28 Pac. 1063. 
 
 12. Nolan v. Johns, 108 Mo. 431. 
 18 S. W. 1107, per Macfarlane, J.: 
 " The use of the word ' person ' in- 
 stead of ' party,' in a chapter of the 
 statute treating exclusively of prac- 
 tice in civil cases, is itself suggestive 
 that others than those technically 
 parties to a suit and judgment should 
 have the right to appeal. Further, 
 it is just that any person whose in- 
 terests are injuriously affected and 
 concluded by a judgment should have 
 the right to a review by the Appel- 
 late Court of the proceedings which 
 resulted in such judgment. Farrar 
 v. Parker, 3 Allen (Mass.), 556; St. 
 
 i77 
 
 37
 
 § 378 Appeals. 
 
 are concluded by the judgment against their principal if it is free 
 from fraud and collusion. 13 Where an injunction order restrains 
 one defendant from paying money to another defendant, the latter 
 may appeal, though not in terms restrained by the order from re- 
 ceiving the money, for in effect he is so restrained. 14 The people 
 may appeal in a proceeding to punish a party for contempt for 
 violating an injunction decree as also the party himself, since such 
 a proceeding, though brought in the name of the people, is a civil 
 remedy partaking of the nature of the injunction suit, if the pur- 
 pose of it is to afford relief between the parties, and not merely 
 to uphold the authority of the court. 15 
 
 § 378. Injunction order operating as final decree. — When the 
 relief sought is purely injunctive, an order granting the injunction 
 operates as a final decree, and is appealable. 16 If the only relief 
 prayed for is an injunction, and it is apparent on the face of the 
 bill that there is no ground for such ruling, the granting of the 
 injunction is an appealable and reversible error. 17 In Illinois, 
 when the only relief asked by the bill is an injunction, the dissolu- 
 tion of the temporary injunction upon motion is equivalent to the 
 sustaining of a demurrer to the bill for want of equity, and is 
 
 Louia Zinc Co. v. Hesselmeyer, 50 715. In Arnold v. Bright, 41 Mich. 
 
 Mo. 180. 207, it was held that an appeal would 
 
 13. Nolan v. Johns, 108 Mo. 431, lie from a preliminary injunction 
 18 S. W. 1107. order as from a final decree because 
 
 See as to general rule, Towle v. it transferred the possession of de- 
 
 Towle, 46 N. H. 431; Hotchkiss v. fendant's land to a receiver. And 
 
 Piatt, 7 Hun (N. Y.), 56; aff'd 66 wherever there is a premature adju- 
 
 N. Y. 620; Methodist Churches v. dication of the merits of a contro- 
 
 Barker, 18 N. Y. 463; McAllister v. versy, the party injured may appeal 
 
 Clark, 86 111. 235. from it as from a final order. Barry 
 
 14. Landers v. Fisher, 24 Hun (N. v. Briggs, 22 Mich. 201; Lewis v. 
 Y.), 648. Campau. 14 Mich. 458; Taylor v. 
 
 15. People v. Diedrieh, 141 111. Sweet, 40 Mich. 736. 
 
 665, 30 N. E. 1038. aff'g 37 111. App. 17. Sauls v. Freeman, 24 Fla. 209, 
 
 604. See, also.. People v. Craft, 7 224, 4 So. 525; Freeman v. Timanus, 
 
 Paige (N. Y.), 324. 12 Fla. 393; County Com'rs v. Bry- 
 
 16. Toledo, etc., R. Co. v. Detroit, son, 13 Fla. 281. Where a bill is 
 ■etc., R. Co., 61 Mich. 9, 27 N. W. filed by heirs to enjoin the enforee- 
 
 578
 
 Appeals. § 371) 
 
 regarded as a final order which may be reviewed on error. 18 And 
 as a suit for an injunction only is not to recover money or chattels 
 it is not affected by the statute limiting appeals to a certain 
 amount, and an appeal lies from the final judgment of the appellate 
 court in such a suit to the Supreme Court, without regard to the 
 amount of the interests involved. 19 In most jurisdictions, however, 
 an order dissolving an interlocutory injunction is not regarded as 
 a final adjudication of the case which is reviewable on appeal. 20 
 
 § 379. Appeals in Alabama. — In Alabama the rule of chancery 
 practice relative to reinstatement of injunctions and appeals from 
 decrees dissolving an injunction 21 operates only in cases where the 
 injunction has been dissolved by order or decree of the court, either 
 express or direct to that end, or if its own indirect operation neces- 
 sarily having such effect, as where a bill upon which an injunction 
 is issued, is dismissed. 22 In an earlier case in this State it is 
 decided that the provision of the Alabama Code, that an appeal 
 may be taken on all interlocutory orders " sustaining or dissolving " 
 injunctions, does not apply to, or authorize an appeal from an order 
 discharging an injunction, on the ground that it has been irregu- 
 larly granted, such order having been improperly made on a 
 motion to dissolve ; but the remedy in such a case is by mandamus 
 from the Supreme Court, commanding the chancellor to vacate his 
 order discharging the injunction. 23 
 
 ment of a decree of foreclosure ren- 21, 45 S. E. 710; Hawkeye Ins. Co. v. 
 
 dered against an administrator on a Huston, 121 Iowa, 393, 96 N. W. 
 
 mortgage made by their ancestor, and 895; Rose v. Township Board, 163 
 
 such bill does not show that the bill Mo. 396, 63 S. W. 698. See further 
 
 of foreclosure did not state facts jus- as to this, §§ 379-396 herein, 
 
 tifying the said decree, it is error to 21. Rule 101, Chancery Practice 
 
 enjoin its enforcement which will be Code, p. 1224. 
 
 ground for reversal, by the Appellate 22. Robertson v. Montgomery 
 
 Court. Merritt v. Daffin, 24 Fla. 320, Baseball Assn., 140 Ala. 320, 37 So. 
 
 4 So. 806. 241. 
 
 18. Prout v. Lomer, 79 111. 331; 23. Ex parte Sayre, 95 Ala. 288, 
 Shaw v. Hill, 67 111. 455; Titus v. 11 So. 378, per Coleman, J.: "The 
 Mabee, 25 111. 257; Weaver v. Poyer, defendant, after answering, made a 
 70 111. 567. motion to dissolve the injunction on 
 
 19. Chalcraft v. Louisville, etc.. R. the following grounds: First, that 
 Co., 113 111. 86. See Baber v. Pitts- the answer denies the material alle- 
 burg, etc., R. Co.. 93 111. 342. gations of the bill; second, that the 
 
 20. Stubbs v. McConnell, 119 Ga. bill is without equity; third, that 
 
 570
 
 §380 
 
 Appeals. 
 
 § 380. In Arizona ; Arkansas. — In Arizona, under the statute 
 of 1887, appeals in injunction suits are governed by the same 
 statutory requirements as appeals in other cases, those requirements 
 being that in all cases of appeal to the Supreme Court " the trial 
 shall be on a statement of facts or on a bill of exceptions, or on a 
 special verdict or on an error in law either assigned or apparent 
 
 the judge of the city court was with- 
 out jurisdiction to make an order 
 granting the injunction at the time 
 it was made. The chancellor, being 
 of the opinion that the bill contained 
 equity, and that the denials of the 
 answer were not sufficient to dissolve 
 the injunction, did not dissolve the 
 injunction on either of the first two 
 grounds, but made an order discharg- 
 ing the injunction on the ground that 
 the order for its issuance, having 
 been made when no suit was ^pending, 
 was void. This proceeding is an ap- 
 plication by the complainants for a 
 mandamus, commanding the chancel- 
 lor to set aside the order discharging 
 the injunction. The only question is 
 whether the petitioner's remedy is 
 by mandamus or appeal. The stat- 
 ute provides that a defendant may 
 move to dissolve an injunction in va- 
 cation, before the chancellor. The 
 cause was regularly submitted to be 
 heard in vacation, upon the motion to 
 dissolve the injunction, and it was at 
 this hearing the chancellor errone- 
 ously discharged the injunction. The 
 court has no authority to hear and 
 determine, in vacation, motions which 
 involve mere interlocutory orders and 
 decrees, except as authorized by stat- 
 ute. The statute (Code, § 3532), pro- 
 vides that ' a defendant may move 
 to dissolve an injunction in vacation 
 before the chancellor of the division 
 in which the bill is filed, either for 
 want of equity, or on the coming in 
 of the answer,' etc., and Code, § 3613, 
 
 provides that ' an appeal lies to the 
 Supreme Court on all interlocutory 
 orders, in term time or vacation, sus- 
 taining or dissolving injunctions,' 
 etc. Under the first statute cited, the 
 power of the court to hear motions to 
 dissolve an injunction in vacation, is 
 limited to cases where the motion 
 is based upon a ' want of equity, or 
 on the coming in of the answer.' The 
 decisions of this court, East & West 
 R. Co. v. East Tennessee R. Co., 75 
 Ala. 275, and Jones v. Ewing, 56 Ala. 
 362, and authorities cited, recognize a 
 marked distinction between a motion 
 to discharge an injunction and a mo- 
 tion to dissolve an injunction. They 
 are made to rest on entirely different 
 grounds, and in fact, the filing of an 
 answer, and a motion to dissolve, is 
 held a waiver of the right to move 
 for a discharge of the injunction. We 
 have seen that the statute confers no 
 authority upon the chancellor, to hear 
 in vacation, a motion to discharge an 
 injunction, and without judicial in- 
 terpolation, this court cannot hold 
 that such power was rightfully exer- 
 cised. The Right of appeal from an 
 interlocutory order, made in vacation 
 by the chancellor, improperly dis- 
 charging an injunction, is not covered 
 by the statute, which grants appeals 
 from interlocutory orders made in va- 
 cation. A party injuriously affected 
 by such erroneous ruling, has no rem- 
 edy to correct the error except by the 
 writ of mandamus. A different prac- 
 tice prevails in some of the States. 
 
 580
 
 Appeals. 
 
 §381 
 
 on the face of the record." u Under this statutory provision the 
 overruling of a demurrer to the complaint, if error, need not be 
 assigned, being fundamental and " apparent on the face of the 
 record," but all errors occurring at the trial of the injunction suit 
 in the court below must be incorporated into the appeal record as 
 in other cases. 20 In Arkansas it has been decided that the dissolu- 
 tion of a temporary injunction before a hearing on complaint and 
 answer is not a final order from which an appeal will lie, but it 
 seems that the injunction might be reinstated in a proper case until 
 it should be properly heard."" 
 
 §381. In California, Colorado, Dakota.— In California, an 
 appeal may be taken from an order granting or dissolving or re- 
 
 West v. Smith, 2 N. J. Eq. 309 
 Woffle v. Vanderheyden, 8 Paige, 45 
 Porker v. Williams, 4 Paige, 43$) 
 Ijeflingwell v. Chave, 5 Bosw. 703 
 Blair v. School Disk, 31 Pa. St. 274. 
 The defect in the statute, omitting to 
 provide for the hearing of a motion 
 to discharge an injunction in vaca- 
 tion, as is provided for hearing mo- 
 tions to dissolve an injunction, may 
 lead to serious mischief, but the 
 power to remedy the defect rests only 
 with the Legislature. A decree will 
 be here rendered that a peremptory 
 writ issue commanding the chancel- 
 lor to set aside and vacate the order 
 discharging the injunction, unless, at 
 the first term of the chancery court 
 of Colbert county, held after being in- 
 formed of this order, the order dis- 
 charging the injunction, mentioned in 
 the petition, is set aside and vacated, 
 and the injunction is reinstated." 
 
 24. Rev. Stat. 1887, § 937. 
 
 25. Shute v. Keyser (Ariz.), 29 
 Pac. 38G t per Kibbey, J. : " Section 
 2144 of the Code of Procedure in that 
 the principles, practice and procedure 
 governing courts of equity shall gov- 
 ern proceedings in injunctions when 
 the same are not iu conflict with this 
 
 act or other law. Upon this appel- 
 lants argue that the practice and 
 procedure even upon appeal and in 
 the manner of perfecting it are gov- 
 erned by the rules of practice of the 
 Federal courts and the High Court of 
 Chancery of England. We cannot 
 concur in that view. Section 2144 
 simply permits the supplying of any 
 matter of practice or procedure in 
 injunction suits, provision for which 
 has not been made by our code, and 
 that in supplying such omissions we 
 shall be governed by the principles 
 and practice generally prevalent in 
 courts of equity in such cases. Our 
 code has prescribed the practice in 
 all cases of appeal from the District 
 Courts to this court. It was not in- 
 tended to prescribe a different prac- 
 tice upon appeal in injunction cases. 
 . . . There being no statement of 
 facts and no bill of exceptions, the 
 only record presented for our con- 
 sideration is the judgment roll. The 
 demurrer to the complaint was over- 
 ruled. If this be error it is appar- 
 ent upon the record and need not here 
 be assigned." 
 
 26. Citizens Bank v. Walker, 26 
 Ark. 468. 
 
 581
 
 § 382 Appeals. 
 
 fusing to grant or dissolve an injunction. 27 And the party injured 
 or aggrieved by an order modifying an injunction has the right 
 of an appeal. Thus it was so held where an order struck out all 
 that portion of a preliminary injunction mandatory in its char- 
 acter. 28 But the discretion of the court of original jurisdiction 
 will be disturbed on appeal only where it has been abused, and 
 where it has been exercised in refusing to dissolve an injunction, 
 it will not be interfered with merely on the ground that some of the 
 allegations of the complaint are on information and belief. 29 And 
 even if most of the facts stated in the complaint and affidavits of 
 plaintiff are denied in the answer and affidavits of defendant, an 
 order granting an injunction will not be reversed on appeal unless 
 it appears there was an abuse of discretion. 30 An appeal from an 
 order dissolving a preliminary injunction must be taken within 
 sixty days from the date of the entry of the order. 31 In Colorado 
 an appeal does not lie from interlocutory orders, but only from 
 final judgments. 32 In Dakota an appeal could be taken to the 
 Supreme Court from orders which grant, refuse, modify or dis- 
 solve an injunction. 33 
 
 § 382. In Delaware, District of Columbia and Florida. — In 
 Delaware, the constitution of 1792 gave an appeal " from inter- 
 locutory or final orders or decrees of the chancellor," and in 1817 
 it was decided by the Court of Errors and Appeals that an appeal 
 
 27. Code Civ. Pro., § 939; New- White v. Nunan, 60 Cal. 406; De- 
 man v. Moretti, 146 Cal. 31, 79 Pac. Godey v. Godey, 39 Cal. 167; Mc- 
 512. Creery v. Brown, 42 Cal. 457." 
 
 28. Wolf v. Board of Supervisors, 30. Coolot v. Central Pac. R. Co., 
 143 Cal. 333, 76 Pac. 1108. 52 Cal. 65. 
 
 29. Hiller v. Collins, 63 Cal. 235, 31. Barham v. Hostetter, 67 Cal. 
 per Curiam: "The facts alleged in 272, 7 Pac. 689; McCourtney v. For- 
 the complaint and affidavits are com- tune, 42 Cal. 387. 
 
 plicated, and though some of the 32. Armor v. Lyon, 1 Col. 7; Lufc- 
 
 facts stated by plaintiff are denied terell v. Swisher, 5 Col. 54. 
 
 by defendants, yet we cannot say the 33. Code Civ. Pro. (1887), § 5236, 
 
 refusal to dissolve the injunction subdiv. 3. This is the rule in South 
 
 under the circumstances appearing in Dakota. Huron Waterworks Co. v. 
 
 the case was an abuse of discretion. Huron City, 3 S. D. 610, 54 N. W. 
 
 Coolot v. Central Pac. R. Co., 52 Cal. 652. 
 65; Parrott v. Floyd, 54 Cal. 534; 
 
 582
 
 Appeals. § 883 
 
 would lie to that court from an interlocutory injunction order of 
 the chancellor which went further than to preserve matters in statu 
 quo pending the suit. 34 In the District of Columbia an order con- 
 tinuing a temporary restraining order in force is held to have all 
 the consequences of an injunction and is appealable. 35 But in an 
 pearlier case it is decided that an appeal can not be taken from an 
 order dissolving a temporary restraining order. 36 In Florida it is 
 decided that where a decree dissolves an injunction and dismisses 
 the bill an appeal will not lie solely from the part of the decree 
 which dissolves the injunction. 37 And where the hearing of an 
 application for an injunction is upon bill, answer, and affidavits 
 in support of the bill, and the answer fails to explain as fully as it 
 should a material point in the case, and the action of the chancellor 
 in granting the injunction is, as to this point, suj)ported by the bill 
 and the affidavits, though controverted by the answer to the extent 
 that the latter goes, it cannot be said that he chancellor has abused 
 his discretion or committed any error justifying the interposition 
 of the appellate court. 38 
 
 § 383. In Georgia. — In Georgia it is decided that an order dis- 
 solving, vacating, or modifying an interlocutory injunction, and 
 
 34. Tatem v. Gilpin, 1 Del. Ch. 13. complainant to the writ, and there 
 In this case the Court of Appeals was a reasonable doubt whether the 
 ordered the chancellor's injunction to equity of the bill was fully negatived 
 be modified, and prescribed the form by the answer, it was not an abuse 
 of injunction to be issued by him and of discretion for the chancellor to 
 "remanded the record to his court for grant the injunction; and he added: 
 that purpose. " Independent, however, of what has 
 
 35. McFarland v. Washington, been said above, and treating the an- 
 Alexandria & M. V. It. Co., 18 App. ewer as fully meeting the case made 
 D. C. 456. by the bill, we are still unable to see 
 
 36. Hurst v. Saunders, 5 App. D. that the action of the chancellor in 
 C. 66. granting the injunction can, upon the 
 
 37. Burnham v. Driggers, 44 Fla. principles controlling Appellate 
 168, 32 So. 796. Courts in such cases, be held to be 
 
 38. In McKinne v. Dickenson, 24 against the weight of evidence under 
 Fla. 366, 5 So. 34, Raney, J., was of the second section of the Act of 1861, 
 the opinion that where, on a motion sec. 20. p. 158, McC.'s Dig.; Sulli 
 for an injunction on bill and answer, van v. Moreno, 19 Fla. 200; Yonge v. 
 the case made by the bill entitled the McCormick, 6 Fla. 368. . . . Our 
 
 583
 
 §383 
 
 Appeals. 
 
 the appointment of a receiver is not reviewable by a " past " writ 
 of error. 39 Section 3220 of the Georgia Code of 1882, providing 
 that " the granting and continuing of injunctions must always 
 rest in the sound discretion of the judge according to the circum- 
 stances of each case," is declaratory of the almost universal rule 
 which is observed in courts of equity, 40 and the rule is also equally 
 general that appellate courts will not interfere with such dis- 
 cretion, and will not reverse an order of the inferior court, whether 
 granting or refusing an injunction, unless that in making the 
 order there was an abuse of discretion which amounted to an error 
 of law. The application of this rule was well illustrated in 1893, 
 at the July term of the Supreme Court of Georgia, when that 
 court first refused to disturb an order of the superior court grant- 
 ing an injunction where there was equity in the petition and the 
 evidence was conflicting; 41 and a week later declined also to disturb 
 an order of the superior court refusing an injunction, and requir- 
 ing the conflict of facts to be settled by the jury at the final hear- 
 ing. 42 If a court of last resort were to undertake to reverse orders 
 
 conclusion as to the action of the 
 chancellor is that there is no error 
 in it authorizing our interposition. 
 His action should not be disturbed 
 by us unless an abuse of a sound dis- 
 cretion is shown." To the same ef- 
 fect is Shivery v. Streeper, 24 Fla. 
 103, 3 So. 865. 
 
 39. Stubbs v. McConnell, 110 Ga. 
 21, 45 S. E. 710. Citing Bacon v. 
 Capital City Bank, 105 Ga. 700, 31 
 S. E. 588; Smith v. Willis, 107 Ga. 
 702, 33 S. E. 667. 
 
 40. §§ 117-121, ante. 
 
 41. Jones v. Rountree, 92 Ga. 
 571, 17 S. E. 951. In Pen- 
 dleton v. Johnson, 85 Ga. 840, 
 11 S. E. 144, the Appellate Court 
 held there was no abuse of discretion 
 in granting the injunction. In Rub- 
 sam v. Cobb, 84 Ga. 552, 11 S. E. 138, 
 it was decided on appeal that there 
 had been no error below in granting 
 
 an injunction in favor of plaintiff on 
 his giving a bond for damages, and in 
 favor of defendant without any bond 
 from him. See, also, Mason v. Kirk- 
 patrick, 77 Ga. 492. 
 
 42. Thrasher v. Holmes, 92 Ga. 
 571, 17 S. E. 899. In the following 
 cases the Appellate Court held there 
 was no abuse of discretion in refus- 
 ing to grant an interlocutory injunc- 
 tion: Board of Education v. Mc- 
 Ree, 88 Ga. 214, 14 S. E. 200; Hill v. 
 Macon & B. R. Co., 86 Ga. 574, 12 
 S. E. 939 ; Clay v. Clay, ' 86 
 Ga. 359, 12 S. E. 1064; Gib 
 son v. Cohen, 85 Ga. 850, 11 
 S. E. 141; East Tenn. R. Cb. v. 
 Sellers, 85 Ga. 853, 11 S. E. 543; 
 Hill v. Staples, 85 Ga. 863, 11 
 S. E. 967; Bentley v. Crenshaw, 85 
 Ga. 871, 11 S. E. 650; Allen v. Eth- 
 eredge, 84 Ga. 550, 11 S. E. 136; 
 Mathews v. Williams, 84 Ga. 536, 11 
 
 5S4
 
 Appeals. 
 
 §384 
 
 granting or refusing to grant an injunction, on the ground that 
 the facts were against the judgment of the inferior court, it would 
 be assuming an original jurisdiction over injunctions not conferred 
 upon it or belonging to it. 43 Upon the preliminary hearing of a bill 
 for injunction upon ex parte affidavits merely, nice and doubtful 
 questions are properly left undetermined, and will not be reviewed 
 upon appeal. 44 
 
 § 384. In Illinois. — In the earlier cases in Illinois it is decided 
 that no appeal lies from an interlocutory decree dissolving a tem- 
 porary injunction; 40 nor from an order in vacation denying a 
 motion to dissolve an injunction. 46 The act of June 14, 1887, 
 allowing appeals from interlocutory orders applies only to orders 
 entered in term time and not to orders entered in vacation and 
 therefore an appeal will not lie from an order of a Circuit Court 
 
 S. E. 447; Yarborough v. Miller, 84 
 Ga. 546, 11 S. E. 450. in Rome Street 
 R. Co. v. Van Dyke, 92 Ga. 570. 17 
 S. E. 906 the controlling question 
 was as to the dedication and accept- 
 ance of a certain bridge, and the evi- 
 dence on this subject being conflicting 
 but sufficient to warrant the judge in 
 finding there had been such dedica- 
 tion and acceptance, and it not ap- 
 pearing that plaintiff would be in- 
 jured by allowing defendant to use 
 the bridge until the issue could be 
 tried by a jury, it was held on 
 appeal that there was no error in 
 denying the injunction. See, also, 
 Harrell v. Griffin, 92 Ga. 571. 17 S. 
 E. 927. In Brunswick & W. R. Co. v. 
 Waycross City. 88 Ga. 68, 13 S. E. 
 835 the city prevented the company 
 from crossing the main thoroughfare 
 of the city, and the court refused the 
 injunction asked for by the company 
 and granted the one asked for by the 
 city, and the Supreme Court refused 
 to interfere as it was not clear that 
 
 the company had not dedicated the 
 locus in dispute for a public street. 
 
 43. Bonaud v. Genesi, 42 Ga. 639, 
 per McCay, J. 
 
 44. Leake v. Smith 76 Ga. 524. 
 
 45. Keenan v. Williams, 45 111. 
 App. 530; Hanford v. Blessing, 80 111. 
 188; Marble v. Bonhotel, 35 111. 240. 
 
 46. School Directors v. Wright, 43 
 111. App. 270; Greve v. Goodson, 142 
 111. 355, 31 N. E. 677; Lucan v. 
 Cadwallader. 114 111. 285, 7 N. E. 
 286. And the fact that the only 
 relief sought is an injunction gives 
 no additional right to an appeal when 
 the order is made in vacation, as such 
 an order is not a judgment or decree 
 of the court. Greve v. Goodson, 
 supra. In Gardt v. Brown, 113 111. 
 475, the order was that the tem- 
 porary injunction be dissolved, and 
 further that if the complainant de- 
 sired to take an appeal the bill be 
 dismissed; it was held that by ap- 
 pealing from the order the complain- 
 ant elected to have his bill dismissed 
 
 585
 
 '§ oSi AprEALS. 
 
 judge granting or refusing an injunction in vacation. 47 And under 
 this act an appeal from an interlocutory order granting an injunc- 
 tion can only be taken while the order remains in force. 48 It is 
 decided in this State that " an order dissolving an injunction is 
 interlocutory, and, where the only relief sought by a bill is an 
 injunction, the complainant upon the dissolution of the injunction, 
 which is in effect a final order denying all relief, may dismiss his 
 bill and appeal, or take out a writ of error." 49 And it is said that 
 it is not questioned that the appellate court has jurisdiction to 
 entertain appeals from orders granting injunctions and that the 
 denial of a motion to dissolve an injunction is the same in effect 
 as an order granting an injunction and that an appeal will lie. 50 
 And in a recent case in this State it is decided that the Supreme 
 Court is not bound by the findings of trial court nor by the affirm- 
 ance of the judgment by the appellate court as to the facts in a 
 civil contempt proceeding but that the same are open for deter- 
 mination by the Supreme Court. It is declared, however, that the 
 latter court will not reverse because the finding is not supported by 
 the evidence unless the finding is against the clear preponderance 
 of the testimony. 51 Where it is sought to restrain an obstruction 
 to a roadway which 'is claimed to be a perpetual easement appur- 
 tenant to the land of complainant and defendant, a decree awarding 
 the injunction involves a freehold within the meaning of the statute 
 Telating to appeals, and an appeal lies directly to the Supreme 
 Court of the State. 52 And within the meaning of the same statute 
 a bill to enjoin a nuisance to complainant's farm involves a free- 
 hold, and an appeal from a decree dismissing the bill lies directly 
 from the Circuit to the Supreme Court. 53 
 
 and could not urge the dismissal as 567; Brown v. American Stone P. B. 
 error. M. Co., 54 111. App. 647. 
 
 47. Hawkins v. Burnell, 191 111. 50. Hately v. Myers, 96 111. App. 
 389, 61 N. E. 68, reo'g 92 111. App. 217. 
 
 459. 51. Hake v. People, 230 111. 174, 
 
 48. Sharpies v. Baker, 100 111. 82 N. E. 561. 
 
 App. 108. 52. Turpin v. Dennis, 139 111. 
 
 49. Williams v. Chicago Exhibi- 274. See, also, Highway Com'rs v. 
 tion Co., 188 111. 19, 58 N. E. 611. Chicago, etc., R. Co., 34 111. App. 32. 
 Per Magruder, J., citing Titus v. 53. Dierks v. Highway Com'rs, 142 
 Mabee, 25 111. 257; Prout v. Lower, 111. 197, 31 N. E. 496. 
 
 79 111. 331; Weaver v. Poyer, 70 111. 
 
 586
 
 Appeals. §§ 385, 385a 
 
 § 385. In Indiana. — The Indiana doctrine is that as it is against 
 the policy of the law to permit appeals from interlocutory orders, 
 such appeals will not be permitted unless expressly authorized by 
 statute ; and therefore an appeal does not lie from an interlocutory 
 order staying further proceedings in a cause until another pending 
 cause shall be decided. 54 And an interlocutory order denying a 
 temporary injunction and vacating a temporary restraining order 
 theretofore issued is not appealable. 55 It is not, however, always 
 easy to decide whether a judgment should be treated as interlocu- 
 tory or final. Thus, in an action to restrain the enforcement of a 
 city ordinance, the case was submitted upon the complaint, and 
 it was " ordered and adjudged that the injunction as prayed for 
 in plaintiff's amended complaint be granted and continued until 
 the validity of the ordinance in question shall have been finally 
 determined." This judgment was held to be appealable because 
 it was not interlocutory but a final termination of the suit. 56 An 
 unsuccessful motion to dissolve an injunction made in the lower 
 court, while an appeal from the order granting it is pending in the 
 Supreme Court, is not sufficient to authorize the dismissal of the 
 appeal, when it does not appear that the appellant has taken a 
 position in the lower court inconsistent with the one he occupies on 
 appeal, or that the position of the parties has been changed since 
 the appeal was taken. 57 It seems that in Indiana, an appeal may 
 be taken from an order denying a motion to dissolve an injunction, 
 if taken before a perpetual injunction is granted, but not if taken 
 after, for it would be idle to reverse such an order after a trial of 
 the action and a decree for a perpetual injunction. The appeal 
 would then lie from the final decree. 58 
 
 § 385a. In Iowa; Kansas. — In Iowa it is decided that a ruling 
 on a motion to dissolve a temporary injunction is not an adjudica- 
 
 54. Taylor v. Jay County Com'rs, Co. v. St. Joseph, S. B. & S. R. Co., 
 120 Ind. 121 ; see Western U. Teleg. 155 Ind. 27, 57 N. E. 530. 
 
 Co. v. Locke, 107 Ind. 9, 7 N. E. 579. 56. Davis v. Fasig, 128 Ind. 271, 
 
 The statute authorizes an appeal 27 N. E. 726. 
 
 from certain interlocutory orders 57. Davis v. Fasig j 128 Ind'. 271, 
 
 enumerated in section 646 of the In- 27 N. E. 726. 
 
 diana revised statutes of 1881. 58. Clay County Com'rg v. Markle, 
 
 55. Terre Haute & Logansport Ry. 46 Ind. 96. 
 
 587
 
 § 385b Appeals. 
 
 tion on thie merits which may be reviewed on appeal except pos- 
 sibly on a proper assignment of errors. 59 And in an action for 
 damages and to abate a nuisance an order continuing the injunc- 
 tion for the purpose of enabling the defendant to abate the 
 nuisance is not appealable. 60 In Kansas it would seem from the 
 earlier cases that while the granting or dissolving of an injunction 
 rests in the sound discretion of the court of original jurisdiction, 
 yet this is a legal discretion which may be subject to review on 
 appeal. 61 A later case in this State seems, however, to support the 
 rule that an order granting a temporary injunction until a date 
 set for a hearing is an interlocutory order from which an appeal 
 will not lie. 62 
 
 § 385b. In Kentucky. — In Kentucky an order made on a 
 motion to continue an injunction in force pending an appeal, 
 whether it be one granting or refusing the relief is held to be sub- 
 ject to revision by the Court of Appeals on application within 
 twenty days. 63 In this State it is provided by statute that appeals 
 may be taken except " from a judgment for the recovery of money 
 or personal property, if the value in controversy be less than 
 $200." 64 And it is decided that an appeal will not lie from an 
 order granting an injunction where the amount involved is not 
 sufficient to give the court jurisdiction. 65 It is, however, decided 
 that an appeal from a judgment refusing to enjoin the collection 
 of a judgment and to vacate it is not an appeal from a judgment 
 
 59. Hawkeye Ins. Co. v. Huston, be so great that this court could say 
 121 Iowa, 393, 96 N. W. 895. that the court below had abused its 
 
 60. Suddeth v. City of Boone, 121 discretion." See, also ; Olmstead v. 
 Iowa, 258, 96 N. W. 853. Koester, 14 Kan. 463. ' 
 
 61. Wood v. Millspaugh, 15 Kan. 62. Wagstaff v. Wagstaff, 67 Kan. 
 14, per Valentine, J. : " Even if the 832, 72 Pac. 780. 
 
 reasons in favor of sustaining a tern- 63. Davis v. Connolly, 104 Ky. 87, 
 
 porary injunction should slightly pre- 46 S. W. 679. 
 
 ponderate over those against it, still 64. Ky. Statutes, § 950: Shackel- 
 
 that would not be sufficient to author- ford, Clerk, v. Phillips, 112 Ky. 563, 
 
 ize this court to reverse an order of 66 S. W. 419, 68 S. W. 441. 
 
 the District Court or of a judge 65. Bourne v. Beck, 22 Ky. Law 
 
 thereof vacating a temporary injunc- Rep. 792, 58 S. W. 690. 
 
 tion, unless the preponderance should 
 
 588
 
 Appeals. § 386 
 
 for the recovery of money or personal properly within the meaning 
 of the statute, making the right of appeal dependent on the 
 amount. 66 In another case in Kentucky it is decided that as a 
 judgment restraining the collection of a fee bill is not a judgment 
 for the recovery of money or property, an appeal lies therefrom, 
 though the value in controversy is less than two hundred dollars. 67 
 An order granting a temporary injunction until a date set for 
 hearing is held to be merely an interlocutory order which does not 
 determine finally any rights of the parties and is not appealable. 68 
 
 § 386. In Louisiana. — In Louisiana, an order dissolving an in- 
 junction on the defendant's bond, is appealable if it causes irre- 
 parable injury to the plaintiff, but otherwise, it is not appealable f 9 
 and an order refusing to dissolve an injunction on the defendant's 
 bond, is appealable. 70 An order refusing to dissolve an injunction 
 on the face of the papers, is not appealable ; 71 such an order, being 
 interlocutory, and of the nature of an exception of no cause of 
 action, can occasion no irreparable injury, and is not appealable 
 prior to a judgment on the merits. 72 And where the judge orders 
 that writs of injunction be dissolved and that the property affected 
 thereby be released upon the giving of a bond by the defendant 
 covering the alleged damages and value, an appeal will not lie. 73 
 An order, dissolving an injunction without notice to complainant, 
 is appealable, and will be reversed. 74 A party is entitled to a notice 
 of decree dissolving an injunction, rendered on an ex parte hearing 
 without notice; and the time for an appeal from such a decree 
 
 66. Cincinnati, Portsmouth, B. S. 70. Lattier v. Abney, 43 La. Ann. 
 & P. P. Co. v. Malone & Co., 29 Ky. 1016, 10 So. 360. 
 
 Law Rep. 44, 92 S. W. 306. 71. Cottam v. Currie, 42 La. Ann. 
 
 67. Shackelford, Clerk, v. Phillips, 875, 8 So. 600. 
 
 112 Ky. 563, 66 S. W. 419, 68 S. W. 72. Hunt v. Brusle, 38 La. Ann. 
 
 441. 356; Huntington v. Sheriff, 7 La. 
 
 68. Treadway v. Daniel, 22 Ky. Ann. 205. 
 
 Law Rep. 1275, 60 S. W. 412. 73. State v. Bruot, 112 La. 425, 
 
 69. Levine v. Mitchell, 34 La. Ann. 36 So. 481. See, also, State v. Som- 
 1181; State v. Debaillon, 37 La. Ann. merville, 113 La. 558, 37 So. 476. 
 110; Osgood v. Black, 33 La. Ann. 74. Marin v. Thierry, 29 La. Ann. 
 493; Puckette v. Judge. 39 La. Ann. 362. 
 
 901, 2 So. 801. 
 
 589
 
 §§ 387, 387a, 387b Appeals. 
 
 runs from the notice. 75 Where an injunction is dissolved without 
 notice to the complainant, he is ordinarily entitled to a suspensive 
 appeal from the order or decree of dissolution, and the lower court 
 may be compelled, by mandamus, to allow such appeal. 76 In the 
 absence of abuse or denial of justice the act of a judge in raising 
 the amount of a bond for injunction will not be interfered with 
 on appeal. 77 
 
 § 387. In Maryland. — In Maryland it was provided by the 
 Code of Public General Laws 78 that whenever any court having 
 equity jurisdiction shall refuse to grant an injunction according 
 to the prayer of the bill, an appeal may be taken from such re- 
 fusal. This section had its origin in the act of 1832, 79 which 
 authorized an application to the judges of the Court of Appeals, 
 or one of them, when an injunction should have been refused by 
 the County Court. 80 And an appeal lies under the Code 81 from an 
 order whose practical effect is to refuse to dissolve an injunction. 82 
 
 § 387a. In Michigan. — In Michigan no appeal lies from an 
 order modifying a preliminary injunction, nor from an order refus- 
 ing a motion to set the order of modification aside. 82 And an order 
 denying a motion to dissolve a temporary injunction is not appeal- 
 able, it not being a final decree. 84 
 
 § 387b. In Minnesota. — In Minnesota, an appeal lies to the 
 Supreme Court from an order of a District Court granting or dis- 
 solving a temporary injunction, but such an order will not be 
 reversed if it appears to have been fairly within the discretion of 
 
 75. State v. District Judge, 37 80. Chesapeake & Potomac Teleph. 
 La. Ann. 118. Co. v. Baltimore, 89 Md. 689, 43 Atl. 
 
 76. Pike v. Bates, 34 La. Ann. 784, 44 Atl. 1033. 
 391; State v. District Judge, etc., 37 81. Art. v, § 25. 
 
 La. Ann. 118; State v. Judge, etc., 82. Connor v. Groh, 90 Md. 674, 
 
 28 La. Ann. 889. 45 Atl. 1024. 
 
 77. Bell v. Riggs, 37 La. Ann. 813. 83. Simmons v. Board of Super- 
 
 78. § 29, art. 5. ' visors, 144 Mich. 591, 108 N. W. 282. 
 
 79. Ch. 197. 84. United States Heater Co. v. 
 
 590
 
 Appeals. §§ 387c, 388 
 
 the lower court. 85 And an order for a temporary injunction granted 
 upon a full hearing upon the pleadings and affidavits of the re- 
 spective parties, and not issued ex parte, is appealable. 86 
 
 § 387c. In Missouri.— The rule established by the earlier cases 
 in Missouri is that an appeal does not lie from the mere refusal to 
 grant a temporary injunction or from an order dissolving such an in- 
 junction. 87 But in a recent case it is decided that under the statute of 
 1899 an interlocutory order dissolving an injunction is appealable. 8 * 
 And the dismissal of plaintiff's petition, in addition to refusing 
 him the injunction, is a final disposition of the case which entitles 
 him to an appeal. 89 And an appeal will lie from an assessment 
 of damages on an injunction bond after the dissolution of a tem- 
 porary injunction, though the cause be still pending. 90 
 
 § 388. In Montana. — In Montana it is declared that it is a 
 general rule that an appeal will not lie from an order refusing to 
 vacate, dissolve or modify a prior judgment or order which is itself 
 appealable. 91 In this State a Code provision for an appeal from 
 an order granting or dissolving, or refusing to grant or dissolve, an 
 injunction is construed as not authorizing an appeal from an order 
 granting or refusing a temporary restraining order pending the 
 hearing of an order to show cause why an injunction should not 
 issue. 92 But in an earlier case it is held that an order vacating a 
 temporary restraining order is an order dissolving an injunction 
 
 Iron Moulders' Union, 129 Mich. 354, which an appeal will lie. Richards v. 
 
 88 N. W. 889, citing Wing v. Warner, Johnson, 34 Mo. App. 83. 
 
 2 Doug. (Mich.) 288. 88. Powell v. Canaday, 95 Mo. 
 
 85. Myers v. Duluth Transfer R. App. 713, 69 S. W. 686, decided under 
 Co., 53 Minn. 335, 55 N. W. 140. Mo. Rev. St. 1899, § 806. 
 
 86. Fuller v. Schutz, 88 Minn. 89. Kansas City R. Co. v. Kansas 
 372, 93 N. W. 118. City, 29 Mo. App. 89. 
 
 87. Johnson v. Board, etc., 65 Mo. 90. Witthaus v. Washington Sav. 
 47; Harrison v. Rush, 15 Mo. 175; Bank, 18 Mo. App. 181. 
 
 Tanner v. Irwin, 1 Mo. 65. An order 91. Butte Consol. M. Co. v. Frank, 
 
 merely dissolving a temporary in- 24 Mont. 506, 62 Pac. 922. 
 
 junction and awarding costs, without 92. Maloney v. King, 25 Mont. 256, 
 
 making further disposition of the 64 Pac. 668, construing Code of Civ. 
 
 cause, is not a final judgment from Proc, § 1722, as amended Feb. 28, 
 
 591
 
 §§ 388a, 389 Appeals. 
 
 from which an appeal lies. 93 And it has also been held that an 
 appeal could properly be taken from an order modifying or par- 
 tially dissolving an injunction, 94 and that an appeal lies also from 
 an order made by a judge in chambers. 90 And on appeal from these 
 provisional orders, the question before the appellate court is, 
 whether or not there was an abuse of discretion by the court below 
 in granting or refusing the injunction. 96 Where an order of the 
 District Court, dissolving an execution sale, has been affirmed on 
 appeal, an order of such court granting an injunction to restrain 
 the judgment creditor from disposing of property purchased at 
 such sale will also be affirmed. 97 
 
 § 388a. In Nebraska. — In Nebraska it is decided that an order 
 dissolving a temporary injunction, and which does not determine 
 or make some final disposition of the case in which the injunction 
 was issued, is not final, and is not alone or until after a final judg- 
 ment in " the action, reviewable on error or appeal." 9S So in an 
 earlier case it is held that an order of the District court dissolving 
 a temporary injunction is not final, and no appeal lies from it 
 before final judgment in the action. 99 
 
 § 389. In New Jersey. — The general New Jersey rule in equity 
 is that all orders granting, refusing, continuing or dissolving in- 
 junctions are appealable. 1 But where an order granting or refusing 
 an injunction is so temporary in its operation, or is so unimportant 
 that the party affected by it cannot be said to be aggrieved, or 
 where the chancellor has simply declined to grant an injunction 
 
 1899; Wetzstein v. Boston & Mori- Atchison v. Peterson, 1 Mont. 561, 
 
 tana C. C. & S. M. Co., 25 Mont. 135. 570; Hiller v. Collins, 63 Cal. 238; 
 
 63 Pac. 1043. Rogers v. Tennant, 45 Cal. 186. 
 
 93. Bennett Bros. v. Congdon, 20 97. Herzog v. Bernard, 12 Mont. 
 Mont. 208, 50 Pac. 556. 523, 31 Pac. 78. 
 
 94. Blue Bird Mining Co. v. Mur- 98. Meng v. Coffee, 52 Neb. 44, 
 ray, 9 Mont. 468, 23 Pac. 1022. 71 N. W. 975. 
 
 95. Granite Mountain Min. Co. v. 99. Scofield v. State Nat. Bank, 8 
 Weinstein, 7 Mont. 346. See Bond Neb. 16; Smith v. Sahler, 1 Neb. 310. 
 v. Pacheco, 30 Cal. 532; Brewster v. 1. Morgan v. Rose, 22 N. J. Eq. 
 Hartley, 37 Cal. 23. 583, 593 ; Attorney-General v. Pater- 
 
 96. Nelson v. O'Neal, 1 Mont, 284; son, 9 N. J. Eq. 624. 
 
 592
 
 Appeals. 
 
 §390 
 
 before the final hearing of the cause, and in the meantime no serious 
 injury can result or the subject matter in controversy be with- 
 drawn from the jurisdiction of the court, his order denying the 
 injunction is not properly appealable. 2 
 
 § 390. In New York. — In New York an order granting or dis- 
 solving a temporary injunction is ordinarily not appealable 
 to the Court of Appeals where it does not substantially 
 dispose of the merits of the controversy and does not 
 necessarily affect a substantial right. But where the com- 
 plainant shows no cause of action for final relief, the granting 
 of a preliminary or temporary injunction is error of law which 
 may be reviewed on appeal. 4 And where an order of general term 
 ■dissolving a temporary injunction states that it is based on the 
 ground that the plaintiff has not the legal right to maintain the 
 action, a question of law is presented which is reviewable by the 
 Court of Appeals. 5 But a general term order affirming an order 
 
 2. Attorney-General v. Pater son, 9 
 N. J. Eq. 624, 628, per Green, C. J.: 
 " The granting or refusal of the tem- 
 porary injunction during the pen- 
 dency of the cause was a matter of 
 discretion with the chancellor. It 
 concluded no right of the parties. 
 The order is in no sense a final or- 
 der. Costs are not adjudged. It is 
 not an order from which an appeal 
 will properly lie. Garr v. Hill, 5 N. 
 J. Eq. 639; Nicoll v. Huntington, 1 
 Johns. Ch. 166." 
 
 3. People v. Schoonmaker, 50 N. 
 Y. 499; Paul v. Munger, 47 N. Y. 
 469. In Pfohl v. Sampson, 59 N. Y. 
 174, Allen, J., said : " This court 
 has, after a full examination of the 
 question, repeatedly held that an or- 
 der continuing or dissolving a tem- 
 porary injunction when it did not 
 substantially dispose of the merits 
 of the controversy, involved a ques- 
 tion of discretion and did not affect 
 a substantial right, and was, there- 
 
 fore, appealable to this court. The 
 right to an injunction pendente lite 
 and to retain the same until the final 
 determination of the action, rests in 
 the discretion of the court of original 
 jurisdiction and is not the subject of 
 review by this court. Judge Bronson 
 thus states the rule: 'The grant- 
 ing, continuing and dissolving of 
 temporary injunctions rests in the 
 discretion of the court of original 
 jurisdiction, and the court agreeing, 
 dismissed an appeal from an order 
 dissolving an injunction.' Van De 
 Water v. Kelsey, 1 N. Y. 533." 
 
 4. McHenry v. Jewett, 90 N. Y. 58, 
 applying section 603 of the Code. 
 See, also, Collins v. Collins, 71 N. Y. 
 270; Wright v. Brown, 67 N. Y. 1, 
 Allen v. Meyer, 73 N. Y. 1, which are. 
 useful by analogy as applicable to 
 other provisional remedies provided 
 by the Code. 
 
 5. Birge v. Berlin Bridge Co., 133 
 N. Y. 477, 31 N. E. 609, per Peck- 
 
 593 
 
 38
 
 § 390 Appeals. 
 
 o-ranting a temporary injunction is not reviewable by the Court 
 of Appeals, except where it plainly appears on the face of the com- 
 plaint, that the case is one in which by settled adjudication the 
 plaintiff upon the facts stated is not entitled to final relief. In all 
 other cases the granting of the order rests in the sound discretion 
 of the court of first instance, subject to review only by the general 
 term. 6 So, too, where a general term order reversing an order 
 granting a preliminary injunction recites that it is made upon the 
 ground that the action cannot be maintained, it presents a question 
 of law which is reviewable in the Court of Appeals. 7 But where 
 the question of law which arises on the complaint is doubtful, it 
 should not be decided on a motion to vacate the injunction, but 
 should be deferred until a hearing of the case upon the merits.* 
 A final judgment for an injunction which is too broad will be 
 modified on appeal and made to conform to the complaint and to 
 the findings in favor of plaintiff. 9 And a final judgment which 
 awards an injunction where a mere abstract right has been violated t 
 or in cases of public nuisance in favor of an individual who has 
 not shown a special injury to himself, is erroneous and will bo 
 reversed or modified on appeal'. 10 In this connection it is decided 
 
 ham, J.: " In such a case a question liberately heard and passed upon on 
 
 of law is raised which we can re- appeal from the final judgment. Here 
 
 view." Anderson v. Anderson, 112 the only question presented is 
 
 N. Y. 104, 19 N. E. 427. whether the words, sliced animals, 
 
 6. Hudson Riv. Tel. Co. v. Water- etc., which the plaintiffs claim to> 
 vliet Turnpike & R. Co., 121 N. Y. have appropriated as a trade mark 
 397, 24 N. E. 832; Williams v. West- are capable of being so appropriated, 
 em U. Tel. Co., 93 N. Y. G40. This is a question of law, and al- 
 
 7. Anderson v. Anderson, 112 N. though it is not so simple a question 
 Y. 104, 19 N. E. 427. See, also, Tol- and its solution is not so clear that 
 man v. Syracuse, etc., R. Co., 92 N. we should against the objection of 
 Y. 353. either party decide it on appeal, yet 
 
 8. Selchow v. Baker, 93 N. Y. 59, as both request such a decision, etc., 
 where the court said: "The case we have concluded to determine it 
 must be very clear to justify this now, and thus dispose of the con- 
 court in deciding the merits of the troversy." 
 
 controversy on a mere motion, and it 9. Cunningham v. Fitzgerald, 13S 
 
 would ordinarily decline in a case N. Y. 1G5, 33 N. E. 840; Fischer v. 
 
 presenting any serious question, to Blank, 138 N. Y. 244, 250, 33 N. E. 
 
 deprive either party of the privilege 1040. 
 
 of having the merits of his case de- 10. Adler v. Metropolitan El. R~. 
 
 504
 
 Appeals. § 390 
 
 that when a decree granting an injunction contains a provision 
 allowing an application to modify it, an order making such modifi- 
 cation and adjudging the defendant in contempt but postponing 
 his punishment until the coming in of a further report by a referee, 
 is an amendment of the judgment and is appealable whether inter- 
 locutory or not. 11 The established rule of the court of last resort 
 in the State of New York is that to justify that court in dissolving 
 a temporary injunction where the inevitable result will be the 
 defeating of plaintiff's remedy without a trial, it must be satisfied 
 that the case is one in which by settled adjudication the plaintiff 
 upon the facts stated is not entitled to final relief. 12 In this State 
 it is also decided that when in an action for a permanent injunction 
 a preliminary injunction has been denied in the court below, the 
 Appellate Division will usually leave the question of the right to 
 be determined on the trial but that where it is apparent that no 
 facts substantially different! will be developed on the trial and 
 there is little or no dispute as to any material fact, but merely as 
 to the conclusions to be drawn therefrom, the Appellate Division 
 will determine the right to a preliminary injunction on appeal 
 from the order denying it. 13 In New York an appeal cannot be 
 taken from a temporary injunction order which has been granted 
 without notice where no motion to dissolve it has been made. 14 
 Upon appeal from an order granting an injunction pendente lite 
 restraining the carrying out of a contract, the Appellate Division 
 
 Co 138 N. Y. 173, 33 N. E. 935. and of business competition. Munro 
 
 11. Saal v. South Brooklyn Ry. v. Tousey, 129 N. Y. 38, 29 N. E. 9. 
 Co. 122 App. Div. (N. Y.) 364, 106 See, also, Bell v. Locke, 8 Paige, 75; 
 N. Y. Supp. 996. Hagg v. Kirby, 8 Ves. 215. 
 
 12. Young v. Rondout & K. Gaa 13. Dutton & Co. v. Cupples, 117 
 Co.. 129 N. Y. 57, 29 N. E. 83. Where App. Div. (N. Y.) 172, 102 N. Y. 
 an injunction was granted restrain- Supp. 309. 
 
 in" a publisher from using a certain 14. Aldinger v. Pugh, 57 Hun, 181, 
 
 name to designate his publications, 185, 10 N. Y. Supp. 684, aff'd 132 N. 
 
 the Court of Appeals dissolved the Y. 403. See §§ 626, 772 and 1347 of 
 
 injunction on the ground that the the code of procedure. A motion for 
 
 uame was not so similar to the name dissolution must be made, and the 
 
 adopted by plaintiff as to mislead a appeal taken from the order denying 
 
 person of ardinary intelligence, and the motion. See Matter of Johnson, 
 
 therefore that the injunction unduly 27 Hun, 538. 
 interfered with the freedom of trade 
 
 595
 
 §§ 390a, 391 Appeals. 
 
 will not vacate the injunction because of an offer to amend the 
 proposed contract so as to make it more fair and reasonable. 15 
 
 § 390a. In North Carolina ; North Dakota. — In North Carolina 
 an order granting or refusing an injunction is appealable, 16 though 
 made by a judge at chambers. 17 In North Dakota an order deny- 
 ing a motion to dissolve a temporary injunction is not appealable 
 on the ground that it is not a final decree. 18 
 
 § 391. In Ohio, Oklahoma, Pennsylvania. — In Ohio, an appeal 
 lies to the District Court from a common pleas interlocutory order 
 dissolving an injunction, but the order is not suspended by the 
 appeal except by the order of the Circuit Court. 19 When a pre- 
 liminary injunction is not vacated by interlocutory decree but by 
 the final decree, an appeal suspends the judgment and takes the 
 case into the District Court with the injunction still in force. 29 
 In Oklahoma it is decided that the right to an appeal from an 
 order of the judge modifying a temporary injunction only exists 
 by virtue of the statute, and is in derogation of long established 
 rules of practice and must be strictly construed. 21 As the statute 
 does not provide for an appeal to the Supreme Court from an order 
 which refuses to modify an injunction, a right to appeal does not 
 exist. 22 And in an earlier case in Oklahoma it is decided that no 
 appeal lies to the Supreme Court from an interlocutory restraining 
 order, even though such order operates as a partition of land. The 
 party restrained must find his remedy, if any, in a modification 
 of the order by the lower court. 23 Under the Pennsylvania Act of 
 186G, an appeal lies to the Supreme Court where an interlocutory 
 injunction has been granted but not where it has been refused. 24 
 
 15. Robinson v. New York, West- the scope of such an appeal, see Keys 
 Chester & B. R. Co., 123 App. Div. v. Williamson, 31 Ohio St. 561. 
 
 (N. Y.) 339, 108 N. Y. Supp. 92. 20. Caldwell v. High, 6 Ohio Bull. 
 
 16. Jones v. Thome, 80 N. C. 72; 138. 
 
 Halcombe v. Haywood Com'rs, 89 N. 21. Herring v. Wiggins. 7 Okla. 
 
 C. 346. 312, 54 Pac. 483. 
 
 17. First Nat. Bank v. Jenkins. 64 22. Herrin v. Merrilies, 7 Okla. 
 N. C. 719. 261, 54 Pac. 467. 
 
 18. Tracy v. Scott, 13 N. D. 577, 23. Hadley v. Ulrich, 1 Okla. 380, 
 101 N. W. 905. 33 Pac. 705. 
 
 19. Ohio Rev. Stat., § 5226. As io 24. HilbiBh v. Catherman, CO Pa. 
 
 590
 
 Appeals. 
 
 §392 
 
 § 392. In South Carolina. — Although in the earlier cases in 
 South Carolina it is decided that an interlocutory injunction made 
 " without prejudice," restraining the defendant from enforcing 
 his judgment against the plaintiff until a decision is reached upon 
 the merits, is not appealable, 25 and that no appeal lies from an 
 order dissolving a temporary injunction and discharging a rule 
 to show cause, 26 yet in later cases it is decided that while the grant- 
 ing or refusing of an interlocutory order of injunction, upon the 
 merits is not as a rule appealable, it is appealable when granted or 
 refused upon a " purely " legal ground, and especially a juris- 
 dictional ground ; 27 and that an order dissolving a temporary in- 
 junction and refusing to continue the same is appealable where 
 such injunction is essential to the assertion of the legal right 
 claimed by the plaintiff. 28 So it has been decided that an inter- 
 locutory restraining order granted by a circuit judge was appeal- 
 able before the Act of 19 01 29 where it involved the merits and was 
 also appealable under said act. 30 And in an early case in South 
 Carolina it is decided that on appeal to the Supreme Court, from 
 
 St. 444, per Sharswood, J. : " It is 
 evidently only in the case of an order 
 or decree granting an injunction, that 
 this exception was introduced to the 
 rule before established, that appeals 
 lie only from final orders or decrees 
 in equity. There were strong reasons 
 why this vast power in the hands 
 often of one man should be subjected 
 to immediate review. The same rea- 
 son does not exist where the appli- 
 cation for the injunction has been 
 refused." 
 
 25. Garlington v. Copeland, 25 S. 
 C. 41, per Mclver, J.: "If appeal- 
 able at all, it must come under subdi- 
 vision 1 of that section of the code 
 which reads as follows : ' Any inter- 
 mediate judgment, order or decree in- 
 volving the merits . . . and final 
 judgments, are appealable.' . . 
 While the order in question is an in- 
 termediate order, we do not think it 
 involves the merits of the action in 
 
 which it was made, and therefore it is 
 not appealable. The order is nothing 
 more than an interlocutory injunc- 
 tion, made solely for the purpose of 
 keeping the subject of the action in 
 statu quo until the merits of the 
 action can be considered and deter- 
 mined." 
 
 26. South Carolina & G. R. R. v. 
 East Shore T. Co., 48 S. C. 315, 26 
 S. E. 613. 
 
 27. Salinas v. Aultman, 49 S. C. 
 378, 27 S. E. 407. See Alston v. 
 Limehouse, 60 S. C. 559, 39 S. E. 188. 
 
 28. South Bound Railroad v. Bur- 
 ton, 63 S. C. 348, 41 S. E. 45} ; Sea- 
 brook v. Mostowitz, 51 S. C. 433, 29 
 S. E. 202; Strom v. Mortgage Co., 
 42 S. C. 97, 20 S. E. 16. 
 
 29. 23 Stat. 623. 
 
 30. Williams v. Jones, 62 S. C. 
 473, 40 S. E. 881. See, also, Lamar 
 v. Croft, 73 S. C. 407, 53 S. E. 540. 
 
 ;or
 
 §§ 392a, 393 Appeals. 
 
 an order refusing an interlocutory injunction, the order may bo 
 reversed, with leave to plaintiff to apply 'again for the injunction, 
 so soon as the remittitur is sent down, and the defendant may be 
 restrained in the meantime, by order of the appellate court; and 
 if the injunction was refused on the ground that the matters at 
 issue were res adjudicata, the cause should not be heard on its 
 merits until the appeal is disposed of. 31 
 
 § 392a. In Texas; Utah. — In Texas, no appeal lies from an 
 order denying an application for an injunction. 32 And a judgment 
 dissolving a temporary injunction and awarding costs but not 
 otherwise disposing of the subject matter of litigation is not a final 
 judgment which is appealable. 33 In Utah an order granting a 
 temporary injunction pending the hearing of the case on the 
 merits is not a final judgment from which there is a right of 
 appeal. 34 
 
 § 393. In Virginia. — In Virginia, an order of the Chancery 
 Court dissolving an injunction was made reviewable by appeal to 
 the Supreme Court of Appeals under section 3454 of the Code of 
 1887, or a motion might be made to the Court of Chancery for 
 reinstatement of the injunction, and appeal taken from the refusal 
 to reinstate ; but if the court below refused the injunction in the 
 first place, the remedy was not by appeal, but by application to a 
 judge of the Supreme Court, on the original moving papers and 
 
 31. Sease v. Dobson, 34 S. C. 345, Pollitzer, 24 S. C. 81; Pringle v. 
 
 per Aldrich, J.: "The Court of Sizer, 3 S. C. 335; Covar v. Sallat, 
 
 Common Pleas cannot hear this 22 S. C. 266." This decision of Al- 
 
 action until the appeal herein has drich, J., was affirmed by the Su- 
 
 been determined by the Supreme preme Court. Sease v. Dobson, 34 S. 
 
 Court, and the judgment remitted to C. 345, 357. 
 
 this court. . . . This view of the 32. Laredo City v. Martin, 52 Tex. 
 
 law is supported by the reasoning 548; Gibson v. Templeton, 62 Tex. 
 
 and judgments in the following cases: 555. 
 
 Bank v. Stelling. 32 S. C. 102; Ag- 33. International, etc., R. Co. v. 
 
 new v. Adams, 24 S. C. 87; Whaley Smith County, 58 Tex. 74. 
 v. Charleston, 8 S. C. 346 ; McCown v. 34. North Point Consol. I. Co. v. 
 
 McSween, 29 S. C. 134; Hammond v. Utah & Salt Lake C. Co., 14 Utah, 
 
 Railway Co., 15 S. C. 10; Elliott v. 155, 46 Pac. 824. 
 
 598
 
 Appeals. 
 
 § 393a 
 
 the order of refusal. 33 So in a recent case it has been decided that 
 no appeal lies to the Supreme Court of Appeals from an order of 
 a Circuit Court refusing an injunction but that the remedy in such 
 a case is by an application to the appellate court to grant the 
 injunction refused. 36 In Virginia to entitle the party to the right 
 of appeal from a decree dissolving an injunction, the amount in- 
 volved must be in excess of a certain amount. 37 And a decree over- 
 ruling a demurrer, giving the defendants leave to answer, and con- 
 tinuing an injunction in force until the further order of the court, 
 is not an appealable decree where there was no motion to dissolve, 
 and the case was heard solely upon the demurrer to the bill. 38 
 
 § 393a. In Washington. — In the Territory of Washington an 
 appeal did not lie under the organic law, 39 from an order granting 
 or dissolving a temporary injunction. 40 and in the State of Wash- 
 ington an order dissolving a temporary injunction is not appeal- 
 able under the Code 41 unless the court has found that the party 
 < lijuined was insolvent, as such finding is jurisdictional to the 
 
 35. Fredenheini v. Rohr, 87 Va. 
 764; Va. Code of 1887, § 3436. Acts 
 W. Va., 1872-73, ch. 17, § 1, permit- 
 ting an appeal from a decree or order 
 dissolving an injunction, did not au- 
 thorize an appeal from an order 
 granting or refusing to dissolve an 
 injunction, and an appeal from such 
 order must be dismissed as improvi- 
 dently granted, although subsequent 
 to its allowance a statute was enacted 
 (Acts, 1882, ch. 157, § 1), authoriz- 
 ing an appeal from " a decree or 
 order dissolving or refusing to dis- 
 solve an injunction." Robrecht v. 
 Wharton, 2 S. E. 793, 29 W. Va. 746. 
 When one has taken forcible pos- 
 session of premises, and an injunc- 
 tion is granted staying his hand and 
 forbidding him to do anything fur- 
 ther, and permit the plaintiff to cul- 
 tivale the land this is not an order 
 " changing the possession of prop- 
 
 erty," within the meaning of section 1, 
 ch. 17, Acts W. Va., 1S72-73, which 
 provides that, " in any case in chan- 
 cery, wherein there is a decree or 
 order dissolving, or refusing to dis- 
 solve, an injunction, or requiring 
 . . . the possession or title of prop- 
 erty to be changed/' an appeal shall 
 be granted. Robrecht v. Wharton, 29 
 W. Va. 746, 2 S. E. 793. 
 
 36. Hudson v. Barham, 101 Va. 63, 
 43 S. E. 189. 99 Am. St. Rep. S49. 
 
 37. Shoemaker v. Bowman, 98 Va. 
 688, 37 S. E. 278, construing §§ 3454, 
 3455 of the Code. 
 
 38. Norfolk & W. R. Co. v. Old 
 Dominion B. Co., 97 Va. 89, 33 S. 
 E. 385. 
 
 39. U. S. Rev. Stat., § 1869. 
 
 40. Northern Pac. R. Co. v. Wells, 
 Fargo & Co., 2 Wash. T. 303; 
 Mahncke v. Tacoma, 1 Wash. St. 18. 
 
 41. Pierce's Code, § 1048. 
 
 599
 
 § 394: Appeals. 
 
 appeal. 43 So where defendant moves to dissolve the temporary 
 injunction granted plaintiff, and also for an injunction against 
 plaintiff, an order denying both branches of the motion, without 
 adjudicating upon plaintiff's prayer for a permanent injunction, 
 is not a final judgment from which an appeal will lie to the 
 Supreme Court of the State. 43 And in Washington, under the 
 Code, 44 an appeal lies from an order granting a temporary manda- 
 tory injunction. 45 In this State it is decided that in matters of 
 equitable cognizance the jurisdiction of the court on appeal does 
 not depend on the amount in controversy. 46 
 
 § 394. In Wisconsin — Under the Wisconsin statutes, an order 
 which " grants, refuses, modifies or dissolves an injunction may 
 be carried by appeal to the Supreme Court." 47 On an appeal by 
 defendant from an order of the Circuit Court, refusing defend- 
 ant's motion to dissolve a preliminary injunction, the Supreme 
 Court will not, on disputed averments in the pleadings, and con- 
 flicting ex parte affidavits, enter into the merits of a claim of 
 estoppel made by the defendant, but will merely inquire if the 
 Circuit Court has properly exercised its discretion in refusing to 
 dissolve the injunction. 48 Upon the entry of an order dissolving an 
 injunction in case the plaintiff shall refuse to do a specific act in 
 the nature of a concession to defendant, the plaintiff's right to 
 appeal from the conditional order at once accrues to him upon his 
 refusal to do the specific act, though the defendant had not then 
 entered the absolute order of dissolution. 49 Of course a judgment 
 
 42. Anderson v. McGregor, 36 37 Wash. 604, 79 Pac. 1105, so hold- 
 Wash. 124, 78 Pac. 776. ing in the case of an appeal from a 
 
 43. Johnstone v. Eissenbeis, 1 judgment dismissing an injunction. 
 Wash. St. 259, per Hoy t, J.: "There 47. Sanborn & B. Ann. Stats, 
 was no final disposition of the cause. (1889), § 3069. 
 
 The plaintiff is still in court asking 48. Koeffler v. Milwaukee, 85 Wis. 
 
 for the permanent injunction, and his 397, 55 N. W. 400. See, also, 
 
 right thereto has never oeen adjudi- Anderton v. Milwaukee, 82 Wis.' 
 
 cated " 279, 52 N. W. 95, where, on an 
 
 44. Bal. Code, § 6500, subd. 3. appeal on similar facts, an order re- 
 
 45. State v. Superior Court, 28 fusing to dissolve a preliminary in- 
 Wash. 403, 68 Pac. 865. junction was sustained. 
 
 46. Trumbull v. Jefferson County, 49. Brock v. Dole, 66 Wis. 
 
 600
 
 Appeals. 
 
 § 395 
 
 awarding a permanent injunction is, like other final judgments, 
 appealable. 50 An order adjudging a defendant in criminal con- 
 tempt for the violation of an injunction is not appealable. 51 And 
 an order denying a stay of proceedings is not an injunction and is 
 not appealable under a statutory provision allowing an appeal 
 from an order which " grants, refuses, continues, or dissolves an 
 injunction." 52 
 
 § 395. Appealable decrees in Federal courts A decree in 
 
 equity is final for the purposes of appeal withiu the rules and 
 practice of the Federal courts if it terminates the litigation be- 
 tween the parties on the merits of the case, and leaves nothing to 
 be done but to enforce by execution what has been determined. 53 
 But a decree, rendered at the suit of a stockholder appointing a 
 receiver in place of the liquidators of the corporation, because of 
 
 142, 28 N. W. 334, per Cole, 
 C. J. : " By the order of Novem- 
 ber 9 the Circuit Court modi- 
 fied its injunction order, and further 
 provided that in case the plaintiff 
 did not permit the defendant to use 
 the chimney on request, then the in- 
 junction order be, and the same was 
 dissolved. It appears that the day 
 following the making of this order, a 
 personal request was made of the 
 plaintiff to permit defendant to use 
 the chimney, which request was re- 
 fused. On proof of this fact, the or- 
 der of November 13 was entered, 
 unconditionally dissolving the in- 
 junction. But, as soon as the plain- 
 tiff refused to assent to the condition 
 upon which the injunction was to be 
 continued, such injunction fell by its 
 very terms. The subsequent order 
 performed no other office than to fur- 
 nish record evidence that a request 
 had been made and refused; in other 
 words, that the injunction was dis- 
 solved. It did not, and of course 
 could not, dissolve an injunction 
 
 which was no longer in force. The 
 appeal, in this case, was from the 
 order of November 9, and was per- 
 fected November 12, after this con- 
 ditional order had become absolute 
 and the injunction dissolved. So it 
 is really an appeal from an order 
 which dissolves an injunction, and 
 must be so considered. In that view, 
 there can be no question as to its 
 appealability." 
 
 50. In Wendlandt v. Cavanaugh 
 85 Wis. 256, 55 N. W. 408, the conclu- 
 sion of law of the Circuit Court was 
 "that the plaintiff is entitled to a 
 permanent and mandatory injunc- 
 tion as prayed in his complaint;" 
 from the judgment entered for plain- 
 tiff on this conclusion, the defendant 
 appealed, and the supreme court af- 
 firmed the judgment. 
 
 51. Williamstown v. Darge, 71 
 Wis. 643, 38 N. W. 187; In re Mur- 
 phey, 39 Wis. 286. 
 
 52. Rossiter v. Aetna Life Ins. Co., 
 96 Wis. 466, 71 N. W. 898. 
 
 53. Bostwick v. Brinkerhoff, 106 
 
 601
 
 §396 
 
 Appeals. 
 
 their adverse interests to the corporation, and restraining them 
 from interference with the receiver, has not such appealable finality 
 as to the displaced liquidators, as entitles them to an appeal either 
 in their official or individual capacities. 54 And an order imposing 
 a fine for a violation of a preliminary injunction cannot be re- 
 viewed except upon an appeal from the final decree in the cause. 55 
 
 § 396. Appeals in Circuit Court of Appeals. — On an appeal to 
 the Circuit Court of Appeals, from an interlocutory order grant- 
 ing an injunction, the right of the complainant to other relief 
 demanded by his bill, cannot be considered when it has not yet 
 been passed upon by the court below ; but the only question before 
 the appellate court is the propriety of the injunction. 58 The policy 
 of the law creating the Circuit Court of Appeals, favors the allow- 
 ance of appeals in all cases, if the right of appeal is exercised in 
 time and in the prescribed form ; but the appeal or writ of error 
 must be applied for by the parties or their solicitors promptly, and 
 allowed by one of the judges of the trial court. 57 The act creating 
 
 U. S. 3, 1 S. Ct. 15, 27 L. Ed. 73; 
 Grant v. Phoenix Mut. Life Ins. Co., 
 106 U. S. 429, 1 S. Ct. 414, 27 L. 
 Ed. 237; St. Louis, I. M. & S. R. 
 Co. v. Southern Exp. Co., 108 U. S. 
 24, 2 S. Ct. 6, 27 L. Ed. 638; Win- 
 throp Iron Co. v. Meeker, 109 U. S. 
 180, 3 S. Ct. Ill, 27 L. Ed. 898; El- 
 liott v. Sackett, 108 U. S. 132, 2 S. 
 Ct. 375, 27 L. Ed. 678; Cosby v. Bu- 
 chanan, 90 U. S. 420, 23 L. Ed. 138. 
 54. Dufour v. Lang, 54 Fed. 913, 
 following the decision in Forgay v. 
 Conrad. 6 How. 204, 12 L. Ed. 
 404, where Laney, C. J., said: 
 " When the decree decides the 
 right to the property in contest, 
 and directs it to be delivered up by 
 the defendant to the complainant, or 
 directs it to be sold, or directs the 
 defendant to pay a certain sum of 
 money to the complainant, and the 
 complainant is entitled to have such 
 decree carried immediately into exe- 
 cution, the decree must be regarded 
 
 as a final one to that extent, and 
 authorizes an appeal. . . . This 
 rule, of course, does not extend to 
 cases where money is directed to be 
 paid into court, or property to be 
 delivered to a receiver, or property 
 held in trust to be delivered to a 
 new trustee appointed by the court, 
 or to cases of like description." 
 
 55. Nassau Elec. R. Co. v. 
 Sprague Elec. R. & M. Co., 95 Fed. 
 415, 37 C. C. A. 146; citing Debs, In 
 re, 158 U. S. 564, 15 Sup. Ct. 900, 39 
 L. Ed. 1092. 
 
 56. Hart v. Buckner, 54 Fed. 925. 
 
 57. Warner v. Texas, etc., R. Co., 
 54 Fed. 920, by the court: "The 
 policy of the law, in the creation of 
 this court, shows marked liberality in 
 allowing appeals from trial courts 
 in all cases, and, on the other hand, 
 requires a speedy prosecution of all 
 appeals or writs of error. It is no 
 part of the clerk's duty, as clerk, to 
 procure the allowance of writs of er- 
 
 602
 
 Appeals. 
 
 §396 
 
 the Circuit Court of Appeals' and prescribing in what cases appeals 
 might be had does not, as amended by the acts of 1895 and 1900 
 authorize an appeal from an order refusing to issue a preliminary 
 
 lor, and the approval of bonds for 
 appeals or writs of error. This is 
 the office of parties, or of their at- 
 torneys and solicitors. It is also 
 clearly not the duty of the clerk, or 
 his privilege, to change tbe writ of 
 error, after it is allowed, by erasing 
 and inserting a date, or by adding a 
 date, any more than it is to make 
 any other alteration in such papers. 
 Nor may he, without the order of the 
 proper court or judge, erase his own 
 file mark on a paper which parties 
 have procured to be filed. He may, 
 and doubtless should, in some cases, 
 add a new file mark or memorandum, 
 signed by him officially, to show such 
 facts in connection with his custody 
 of the files as appears to him might 
 be or become materiaJ. In the pres- 
 ent case he might, without overstep- 
 ping his duty, have noted on the writ 
 what actually had occurred within 
 his knowledge as to the signature of 
 the judge on the writ of error. We 
 do not say that it was his duty to 
 do this. We only say that to have 
 done it would not have been improper. 
 The parties have a right to appeal 
 or sue out writs of error from all 
 final judgments and decrees, and 
 from certain interlocutory decrees, if 
 that right is invoked in time and in 
 the prescribed form. A part of that 
 prescribed form is for one of the 
 judges of the trial court to allow the 
 appeal or writ of error, and the ap- 
 peal or writ of error is not ' taken or 
 sued out ' until that allowance is ob- 
 tained (Barrel v. Transportation Co., 
 3 Wall. 424 18 L. Ed. 168; Brooks v. 
 Norris, 11 How. 204, 13 L. Ed. 665; 
 
 Scarborough v. Pargoud, 108 U. S. 
 567, 2 Sup. Ct. 877, 27 L. Ed. 824). 
 and parties and their attorneys some- 
 times incur serious hazard of losing 
 their right of appeal by omitting to 
 take the proper steps in due time, so 
 that misconnections, liable to occur 
 may not prevent their obtaining the 
 necessary allowance from a judge 
 whose other duties take him to dif- 
 ferent and distant places in his dis- 
 trict. The form of writ of error for 
 taking a case from the Circuit Court 
 to the Supreme Court, which was 
 prescribed many years ago under an 
 act of Congress, and which has been 
 in use ever since, has on it a mem- 
 orandum of allowance to be signed by 
 the judge. Section 9, Act 171)2; Mus- 
 sina v. Cavazos, 6 Wall. 357, 18 
 L. Ed. 810. In actual prac- 
 tice, the petition for writs of 
 error is also indorsed ' allowed ' by 
 the judge. The office of each is to 
 show the fact that the writ is al- 
 lowed, and it does not appear to us to 
 be jurisdictional that the allowance 
 should be indorsed on both, or on 
 one rather than the other. It is well 
 to proceed in order, and in a matter 
 of general usage so long established, 
 parties could not complain if some 
 strictness should be exercised in en- 
 forcing compliance with prescribed 
 forms. In this case the plaintiff in 
 error did not use reasonable diligence 
 to get his bond approved in time, and 
 to obtain the customary indorsement 
 on the writ of error. He relied on 
 the clerk to do for him what the clerk 
 was under no official obligation 
 to do." 
 
 603
 
 § 397 Appeals. 
 
 injunction. 58 But under the act of Congress providing that an 
 appeal will not lie from an order dissolving a preliminary restrain- 
 ing order, 59 it has been decided that the Court of Appeals has juris- 
 diction to entertain an appeal from a decree dissolving such an 
 order, which was to be regarded as a final order owing to the fact 
 that, though it did not in terms dismiss the bill, it was based on a 
 decision that the court could give the plaintiff no relief under the 
 prayer of his bill. 60 The docket entry in an infringement suit, 
 " opinion-decree for complainants," does not constitute a decree for 
 an injunction which is required to give the Circuit Court of 
 Appeals jurisdiction, nor can such an entry be aided for that pur- 
 pose by reference to the opinion ; and hence an appeal taken before 
 any decree is drawn is premature. 61 
 
 § 397. Same subject; assignment of errors. — The eleventh rule 
 of the Circuit Court of Appeals for the fifth circuit requiring 
 an assignment of errors in the court below, which shall form part 
 of the transcript on appeal, is applicable to all cases of appeals in 
 equity, as well as in admiralty, and to writs of error. This rule 
 was applied to a decree enjoining removed liquidators from inter- 
 fering with a receiver appointed in their place. 62 
 
 58. Omaha & S. W. R. Co. v. Chi- strictions as are or may be prescribed 
 cago, St. P. & O. R. Co., 106 Fed. in law in cases of writs of error. Rev. 
 586, 45 C. C. A. 474, construing § Stat., § 1012. There shall be an- 
 7 of act creating Circuit Courts of nexed to and returned with any writ 
 Appeals (26 Stat. 828) as amended of error for the removal of a cause, 
 by Act of Feb. 18, 1895 (28 Stat. at the day and place therein men- 
 666) and Act of June 6, 1900 (31 tioned, an authenticated transcript of 
 Stat. 1899-1900, p. 660). the record, an assignment of errors, 
 
 59. Act. Cong. June 6, 1900, c. and a prayer for reversal, with a ci- 
 803, 31 Stat. 660 (U. S. Comp. St. tation to the adverse party. Rev. 
 1901, p. 551), amending Court of Ap- Stat., § 997. Our rule 11 (47 Fed. 
 peals Act, § 7. 6), based on these provisions of the 
 
 60. Bailey v. Willeford, 131 Fed. statute, requires the plaintiff in error 
 242, 66 C. C. A. 229. or appellant to file with the clerk be- 
 
 61. Herrick v. Cutcheon, 55 Fed. 6. low, with his petition for writ of error 
 
 62. Dufour v. Lang, 54 Fed. 913, or appeal, an assignment of errors, 
 per McCormick, J.: "Appeals from which shall set out separately and 
 the Circuit Courts shall be subject to particularly each error asserted and 
 the same rules, regulations, and re- intended to be urged. The first clause 
 
 604
 
 Appeals. 
 
 398 
 
 § 398. Reversals by Federal Circuit Court of Appeals The 
 
 Circuit Court of Appeals has the power to reverse an interlocutory 
 order granting or continuing a temporary injunction, but will 
 not exercise this power unless it is clearly shown that the injunc- 
 tion was improvidently granted and is hurtful to the appellant. 63 
 The order of the United States Circuit Court, granting a pre- 
 liminary injunction to close the World's Fair on Sundays, was 
 reversed by the Circuit Court of Appeals, on the ground that the 
 order had been made by the lower court in the " exercise of an 
 unregulated discretion," as it. had not been shown that opening 
 
 of subdivision 5 of rule 24 (Id. 11), 
 provides that when, according to this 
 rule, a plaintiff in error or an ap- 
 pellant is in default, the case may be 
 dismissed on motion. The counsel for 
 the appellants insists that this rule 
 can never have been intended to re- 
 late to any appeals except appeals 
 from admiralty causes. There is, 
 however, nothing in the language of 
 the statutes or of our rules, or in the 
 nature of the case, restricting the ap- 
 plication of the rule to appeals in 
 admiralty. The purpose of the rule 
 is twofold: to advise the adversary 
 as to what he is to defend, and to aid 
 the Appellate Court in reviewing the 
 case. It is so far not jurisdictional 
 that the court may, in a proper case, 
 entertain the appeal, and notice a 
 plain error not assigned or specified; 
 but we consider the better practice is 
 to require a compliance with the rule 
 in all cases of appeals in equity, as 
 well as of writs of error in cases at 
 law. We conclude, therefore, that 
 the motion to dismiss this appeal is 
 well taken, and should be granted, 
 and it is so ordered." 
 
 63. Workingmen's^ etc., Council v. 
 United States, 57 Fed. 85, per Mc- 
 Cormick, J. : " The Circuit Court 
 exercised just caution, and gave de- 
 
 fendants ample time to show cause 
 why the preliminary injunction 
 sought should not be granted. . . . 
 The summary of the proof made in 
 the opinion of the judge of the Cir- 
 cuit Court is fairly supported by the 
 record, and shows that there was 
 proof tending to support the allega- 
 tions of the bill. The providing by 
 law for an appeal from an interlocu- 
 tory order granting an injunction cer- 
 tainly clothes the Court of Appeals 
 with the power and charges it with 
 the duty of reviewing, and in a proper 
 case, reversing the action of the trial 
 court in granting such injunctions; 
 but as to issues of fact, presented as 
 they only can be presented in such 
 cases, the findings of the facts ex- 
 pressed or implied in the action of 
 the trial court, should be given due 
 weight, and its action so far as it 
 rests on, or is affected by the state of 
 facts proved, should not be reversed 
 unless it is made clearly to appear 
 that it was improvident and hurtful 
 to the appellant. In this case, the 
 most that can be urged against the 
 order having relation to the state of 
 the proof, is that it was unnecessary. 
 It only enjoined the appellants from 
 doing, pending this suit, what the 
 statute forbids and provides may be 
 
 605
 
 §,§ 399 400 
 
 Appeals. 
 
 the Fair on Sundays would cause irreparable injury to the prop- 
 erty of the United States. 64 
 
 § 399. Joinder of joint defendants in writ of error; Federal 
 rule. — In accordance with the rule that joint defendants wishing 
 to have a judgment against them reviewed by the Circuit Court of 
 Appeals, must all join in the writ of error, or that there must be 
 a summons and severance or equivalent proceedings to entitle any 
 of them to proceed alone, the sureties upon a supersedeas bond, 
 after affirmance by the appellate court, cannot have the judgment 
 thereafter entered against them in the trial court reviewed on writ 
 of error, without joining the principal and all other defendants 
 in the writ, or obtaining the right to proceed alone in the manner 
 above mentioned; and if such joinder of defendants is not had, 
 the writ of error will be dismissed for non-joinder. 65 
 
 § 400. Effect of appeal ; Federal rule ; stay pending appeal. — 
 The rule in the Federal courts is that an appeal from a decree 
 
 prevented by injunction. On this ap- 
 peal from an interlocutory order 
 which we affirm } we deem it unneces- 
 sary to anticipate the further pro- 
 gress and final hearing of this case 
 by an expression of our views as to the 
 full scope and sound construction of 
 this recent and inportant statute." 
 
 64. World's etc., Exposition v. 
 United States, 56 Fed. 654. 
 
 65. Humes v. Third Nat. Bank, 54 
 Fed. 917, per McCormick, J.: "We 
 are of opinion that the motion to dis- 
 miss the writ of error is well taken. 
 It is apparent on the face of the rec- 
 ord that the judgment of the court 
 below was a joint judgment against 
 E. C. Gordon, C. C. Harris, and Mil- 
 ton Humes. It is immaterial that 
 Gordon was principal and the others 
 sureties. If a writ of error could 
 bring that judgment to this court — a 
 question not free from doubt — the 
 
 long-settled practice requires that all 
 of the joint defendants should join 
 in the writ, or that there should have 
 been a summons and severance, or 
 equivalent proceedings, to entitle the 
 plaintiffs in error to proceed alone, 
 and the successful party below pro- 
 ceed to enforce his judgment against 
 the defendant who does not desire to 
 have it reviewed, and this court not 
 to be required to decide a second time 
 the same question on the same record. 
 The following cases amply illustrate 
 and fully settle the doctrine and 
 practice here stated: Owings v. 
 Kincannon, 7 Pet. 399, 8 L. Ed. 727 ; 
 Todd v. Daniel, 16 Pet. 521, 10 L. Ed. 
 1054; Williams v. Bank, 11 Wheat. 
 414, 6 L. Ed. 508; Mussina v. Ca- 
 vazos, 6 Wall. 355, 18 L. Ed. 810; 
 Masterson v. Herndon, 10 Wall. 416, 
 19 L. Ed. 953; Feibelman v. Pack- 
 ard, 108 U. S. 14, 1 S Ct. 138, 27 L. 
 
 606
 
 Appeals. 
 
 4.00 
 
 granting or dissolving an injunction does not disturb the operative 
 effect of such decree. 66 As an injunction which has been dissolved 
 cannot be revived by a mere appeal without a new exercise of 
 judicial power, a fortiori the mere prosecution of an appeal cannot 
 operate as an injunction where none has been granted. 67 The 
 judge, however, who hears the case in the court below may, on 
 allowing an appeal from a final decree, granting or dissolving an 
 injunction, suspend or modify the injunction pending appeal on 
 such terms as he may consider proper; and doubtless the Supremo 
 Federal Court has the same power while an appeal is pending 
 before it. 68 And where an order not only grants an appeal but " a 
 supersedeas is granted to the order " which dissolved the injunction, 
 the order to take effect when the bond has been approved, the order 
 ipso facto, upon the giving of the required bond reinstates the 
 
 Ed. 634; Downing v. McCartney, ap- 
 pendix to 131 U. S. 98, 19 L. Ed. 757 ; 
 Mason v. U. S., 130 U. S. 581, 10 S. 
 Ct. 1062, 34 L. Ed. 545, and Hardee 
 v. Wilson (decided at the October 
 Term. 1892), 146 U. S. 179, 13 S. Ct. 
 39, 36 L. Ed. 193 — in which all of 
 the foregoing cases are cited and dis- 
 cussed." 
 
 66. Leonard v. Ozark Land Co., 
 115 U. S. 465, 468, 6 S. Ct. 127, 29 
 L. Ed. 445, per Waite, C. J.: "The 
 injunction ordered by the final de- 
 cree was not vacated by the appeal. 
 Slaughter-House Cases, 10 Wall. (U. 
 S.) 273, 297,19 L. Ed. 915; Hovey 
 v. McDonald. 109 U. S. 150, 161, 3 S. 
 Ct. 136, 27 L. Ed. 888. It is true 
 that in some of the slaughter-house 
 cases the appeal was from a decree 
 making perpetual a preliminary in- 
 junction, which had been granted at 
 an earlier stage of the case, but the 
 fact of the preliminary injunction 
 had nothing to do with the decision 
 which was 'that neither an injunc- 
 tion or decree dissolving an injunc- 
 tion is reversed or nullified by an ap- 
 
 peal or writ of error before the 
 cause is heard in this court.' This 
 doctrine, in the general language here 
 stated, was distinctly reaffirmed in 
 Hovey v. McDonald, supra, and it 
 clearly refers to the injunction con- 
 tained in the decree appealed from, 
 without reference to whether that in- 
 junction was in perpetuation of a 
 former order to the same effect, or 
 was then for the first time granted. 
 The injunction, therefore, which was 
 granted by the final decree in this 
 case is in full force notwithstanding 
 the appeal." 
 
 67. Knox County v. Harshman, 
 132 U. S. 14, 10 S. Ct. 8, 33 L. Ed. 
 249. 
 
 68. Leonard v. Ozark Land Co., 
 115 U. S. 465, 6 S. Ct. 127, 29 L. Ed. 
 445, per Waite, C. J.: "This court 
 has, no doubt, the power to modify 
 an injunction granted by a decree be- 
 low in advance of a final hearing of 
 an appeal on its merits. An applica- 
 tion to that effect was made to us at 
 the October term, 1878, in the case 
 of the Sandusky Tool Co. v. Com- 
 
 607
 
 §401 
 
 Appeals. 
 
 injunction. 69 But in the United States Circuit. Court it has been 
 decided that an appeal from a decree granting an injunction does 
 not supersede such decree though the requisites for a supersedeas 
 are complied with. 70 An appeal does not lie to the Federal Su- 
 preme Court from an interlocutory decree of a Circuit Court dis- 
 solving an injunction. 71 
 
 § 401. In Alabama, Arkansas. — In Alabama, pending an ap- 
 peal from an order dissolving an injunction the appellant, is 
 entitled to have the injunction reinstated upon giving the proper 
 bond, and may enforce his right by mandamus. 72 In Arkansas on 
 appeal from a judgment for defendants in an action to restrain 
 the county judge acting for the county from paying over a certain 
 fund to the other defendant, and for a lien thereon, it has been 
 decided that plaintiff is not entitled to an order restraining such 
 payment pending the appeal, where the county is solvent, as, if 
 the money is paid over wrongfully, the county will still be liable, 73 
 
 stock (not reported), and finding 
 that such practice, if permitted, 
 would often involve an examination 
 of the whole case, and take much 
 time, we made the present equity rule 
 93, which is as follows ' When an ap- 
 peal from a final decree in an equity 
 suit, granting or dissolving an in- 
 junction, is allowed by a judge who 
 took part in the decision of the cause, 
 he may in his discretion make an or- 
 der suspending or modifying an in- 
 junction pending the appeal upon 
 such terms., as to bond, or otherwise, 
 as he may think proper.' Here the 
 judge, who heard the case, allowed 
 the appeal, and instead of suspending 
 or modifying the injunction, he gave 
 special notice that, it was to continue 
 in force, and if the facts are correctly 
 stated in the opinion, it was quite 
 proper he should do so." 
 
 Where a decree dissolves an in- 
 junction, an order which merely al- 
 
 lows an appeal therefrom, even 
 though a supersedeas bond be given 
 in due time, is held not to continue 
 the injunction in force. In such 
 cases, however, it is held permissible 
 for the court or judge granting the 
 appeal to provide that the injunction 
 shall continue in force pending the 
 appeal. New River Mineral Co. v. 
 Seeley, 117 Fed. 981. 
 
 69. New River Mineral Co. v. 
 Seeley, 117 Fed. 981. 
 
 70. Interstate Commerce Commit 
 sion v. Louisville & N. R. Co., 101 
 Fed. 146. 
 
 71. Young v. Grundy. 6 Cranch, 
 51. 
 
 72. Ex parte Planters', etc.. Ins. 
 Co., 50 Ala. 390. 
 
 73. MeFadden v. Owens. 54 Ark. 
 118. 15 S. W. 84. See, also, Cham- 
 bliss v. Reppy, 54 Ark. 539, 16 S. 
 W. 571; Shaul v. Ihiprey, 48 Ark. 
 331, 3 S. W. 366. 
 
 608
 
 'Appeals. §§ 401a, 402 
 
 § 401a. In California, — In California the stay of proceedings 
 provided for by the Code pending appeal from a judgment is held 
 not to operate to suspend the operation of an injunction embodied 
 in a judgment. 74 In other cases in this State it is decided that 
 where the part of the judgment granting an injunction is merely 
 incidental to that part of the judgment which determines the other 
 issues between the parties, an appeal from the final judgment in 
 such action operates to suspend the injunctive portion of such 
 judgment and that the lower court will be restrained by a writ of 
 prohibition from punishing a person for a violation of such in- 
 junction. 75 
 
 § 402. In Florida. — The Florida statute authorizing appeals 
 from interlocutory orders in chancery, provides that such appeals 
 shall not operate as a supersedeas unless the judge of the Circuit 
 Court or a justice of the Supreme Court shall, on an inspection of 
 the record, direct a stay of proceedings and that no appeal shall of 
 itself operate as a supersedeas except upon the conditions now 
 prescribed by law on appeal from final judgments and decrees. 76 
 So it is decided that an appeal from an order dissolving an injunc- 
 tion does not of itself reinstate an injunction, but an appeal, and 
 an order by the Circuit judge or a justice of the Supreme Court 
 under the statute that the appeal shall operate as a supersedeas to 
 
 74. Rogers v. Superior Court, 126 dered and sustained, and Maxwell, J., 
 Cal. 183, 58 Pac. 452. said: "It is enough on application 
 
 75. Mark v. Superior Court, 129 for supersedeas in an appeal from an 
 Cal. 1, 61 Pac. 436; Foster v. Su- interlocutory order or decree that the 
 perior Court, 115 Cal. 279, 47 Pac. judge should on 'inspection of the 
 58; Stewart v. Superior Court, 100 record' think fit to order and direct 
 Cal. 543, 35 Pac. 156, 563. it. McClellan, 167, section 2. He is 
 
 76. McClellan's Dig., p. 167. § 2; not to satisfy his mind on litigated 
 Jacoby v. Shomaker, 26 Fla. 502, 507. questions, but only to see that there 
 7 So. 855. where a supersedeas of an is an appeal, that it is not frivolous, 
 injunction against a liquor business and that the state of the case as to 
 was denied pending appeal because its future course is such as to render 
 the damage from the continuance of a stay of proceedings proper. This 
 the liquor business could not be com- was our meaning when in Saxon v. 
 pensated for in money. In Williams Gamble. 23 Fla. 412, 2 So. 664, we 
 v. Hilton, 25 Fla. 608. 6 So. 452. a said ' it is not necessary or proper 
 supersedeas of the injunction was or- for a justice, on application for su- 
 
 fiOO 
 30
 
 §402 
 
 Appeals. 
 
 the order appealed from, and a compliance with the terms of the 
 supersedeas order as to giving bond, restores the injunction. 77 In 
 this State on an appeal from an order of the Circuit Court denying 
 an injunction asked for, the Supreme Court will not grant a tem- 
 porary injunction to operate pending the appeal unless it is indis- 
 pensable to the protection of the rights of the party asking it. 
 Thus, where the injunction asked for is in restraint of an action 
 at law, and the facts, if sufficient to authorize an injunction, also 
 constitute a good defense by equitable plea to the action at law, 
 it should be granted by the appellate court to operate pending the 
 appeal. 78 But it is decided that so long as an appeal from an order 
 granting an injunction is pending, the power of the courts to 
 
 persedeas, to consider the merits of 
 the appeal,' and this language should 
 be modified to admit consideration of 
 the merits so far as to see whether 
 the appeal is frivolous." 
 
 77. Smith v. Whitfield, 38 Fla. 
 211, 20 So. 1012. 
 
 McMichael v. Eckman, 26 Fla. 43, 
 7 So. 3G5. In this case an execution 
 sale of personal property was en- 
 joined until $1,000 wortli of personal 
 property should be set aside for com- 
 plainant as the exemption allowed the 
 head of a family, the property 
 claimed as exempt to be scheduled 
 immediately in the manner directed 
 by law, and remain in tlie possession 
 of the sheriff. Afterwards the in- 
 junction was dissolved on motion of 
 defendants, and, the complainant hav- 
 ing appealed from the dissolving 
 order, an order was made that the 
 appeal should operate as a super- 
 sedeas on the filing and approval of 
 a specified bond. It was held that 
 the Supreme Court would not vacate 
 or modify the supersedeas so as to 
 permit a sale of the entire property, 
 on the ground that it was perishable, 
 and that the sheriff, misunderstand- 
 ing the scope and meaning of the su- 
 
 persedeas order, refused to sell the 
 property, where it is not shown that 
 the property is perishable to the ex- 
 tent that would render the delay 
 fatal to the interests of the parties 
 concerned. Per Raney, C. J. : " Al- 
 though an appeal from a decree dis- 
 solving an injunction does not of it- 
 self under our practice operate to 
 reinstate the injunction, yet, where 
 an order is made that the appeal 
 shall operate as a supersedeas to such 
 decree, and the terms of the super- 
 seding order as to giving bond have 
 been complied with, we are satisfied 
 the injunction is thereby reinstated. 
 Authorities of great respectability 
 hold that the allowance of an appeal 
 by the court will reinstate the in- 
 junction. Penrice v. Wallis, 37 Miss. 
 172; Yocum v. Moore, 4 Bibb (Ky., 
 221; Turner v. Scott, 5 Rand. (Va.) 
 332; Williams v. Pouns, 48 Tex. 141." 
 78. Cohen v. U Engle, 24 Fla. 542, 
 5 So. 235. In Pasco v. Gamble, 15 
 Fla. 562, the Supreme Court, when 
 reversing an order of the Circuit 
 Court appointing a receiver of rents 
 and profits, enjoined the defendant to 
 the bill of foreclosure until the fur- 
 ther order of the Circuit Court from 
 
 C10
 
 Appeals. §§ 402a, 402b 
 
 enforce the injunction, or to punish as contempts acts in violation 
 of its terms, committed during such time, is suspended. 79 
 
 § 402a. In Georgia; Illinois. — In Georgia, an appeal from an 
 order dissolving an injunction does not operate as a supersedeas 
 to keep the injunction in force, nor will the appeal be heard until 
 after final disposition of the cause in the court below. 80 And where 
 a restraining order granted on a rule to show cause why an injunc- 
 tion should not be granted falls with the refusal of the injunction, 
 it is not appealable nor revived by an appeal from the order refus- 
 ing the injunction. 81 In Illinois, if a temporary injunction is con- 
 tinued until the final hearing and is then dissolved and the bill 
 dismissed, an appeal will operate to suspend the decree dissolving 
 the injunction, so as to leave it still in force, but if the injunction 
 was dissolved by an interlocutory order and the cause afterward 
 proceeded to a final hearing, an appeal from the final decree will 
 not revive the injunction, though the appellate court will in a 
 proper case revive it until the appeal can be heard. 82 
 
 § 402b. In Iowa. — In Iowa it is decided the contention that the 
 defendant, by filing a supersedeas bond and appealing from the 
 order dissolving a temporary injunction, can keep it in force, is 
 without merit, since an order dissolving such a writ is self-execut- 
 ing and is not superseded by filing a bond. It is, however, decided 
 
 making any disposition of the rents in force by the bill of exceptions op- 
 
 and profits. The reversal was on ac- erating as a supersedeas when bond 
 
 count of an error in practice and the is given under said section. They 
 
 purpose of the injunction was to pre- are interlocutory orders of the chan- 
 
 serve the complainant's rights till an cellor, which cease to operate •when 
 
 amendment of the bill should be his order sets them aside." See, also, 
 
 ma de. Ogle v. Dill, 55 Ind. 130, where it 
 
 79. Powell v. Florida Land & I. was held that the refusal of the 
 Co., 41 Fla. 494, 26 So. 709. Circuit Court to grant a temporary 
 
 80. Nacoochee Mining Co. v. Da- restraining order during the peu 
 vis. 40 Ga. 309. dency of a suit for a perpetual in- 
 
 81. Powell v. Parker, 38 Ga. 644, junction, was not an interlocutory 
 per Brown, C. J.: " We do not think order from which an appeal would 
 section 4203 of the Revised Code was lie to the Supreme Court, 
 intended to apply to these restrain- 82. Bressler v. McCune, 56 111. 
 ing orders or that they are continued 475. See 111. Laws of 1874, § 21 ; 
 
 611
 
 §§ 402c, 402d Appeals. 
 
 in this State that, under the Code 83 conferring on the Supreme 
 Court power to issue all writs and processes necessary for the 
 exercise and enforcement of its appellate jurisdiction, the Supreme 
 Court has power to issue a restricting order to prevent one party 
 to an appeal from disturbing the possession of the adverse party 
 to the property in litigation pending the appeal. 84 In this State 
 under a Code provision that an injunction affecting the subject 
 matter of an action can be granted only by the court before which 
 it is pending, an injunction restraining the taking possession of 
 land in dispute, after an appeal has been taken, can be granted 
 only by the appellate court. 85 
 
 § 402c. In Louisiana. — In Louisiana where plaintiff obtains 
 and perfects a suspensive appeal from a judgment setting aside an 
 injunction, it is decided that the effect of the appeal is to hold 
 matters: in abeyance until the rights of the parties have been finally 
 passed upon on the appeal. In such a case where defendant com- 
 mences another action pending the appeal he cannot claim in such 
 action a counter injunction against the plaintiff which will have 
 the effect of nullifying the first injunction, though upon a proper 
 showing the property in dispute may be placed in the custody of 
 the court and held until the decision of the case on appeal. 86 
 
 § 402d. In Michigan ; Minnesota ; Montana. — In Michigan it 
 is decided that though the effect of an appeal from a decree grant- 
 ing a permanent injunction, is to bring the cause into the Supreme 
 Court and to stay all proceedings at the circuit, its effect is not to 
 dissolve the injunction, and pending the appeal the injunction may 
 not be ignored. 87 In Minnesota an appeal from an order dissolv- 
 ing a temporary writ of injunction, if a proper supersedeas bond 
 
 Cothran's Ann. Ed. Rev. Sts. (1891), 86. State v. Deboillon, 113 La. 619, 
 
 p. 709. 37 So. 534. 
 
 83. § 4109. See, also, as to effect of a suspens- 
 
 84. Manning v. Poling, 114 Iowa, ive appeal from an order dissolving 
 20, 86 N. W. 30. an injunction, Hake v. Lee, 104 La. 
 
 85. Hyatt v. Clever, 104 Iowa, 338, 146, 28 So. 1004. 
 
 73 X. W. 831, construing Code 1873. 87. Wilkinson v. Dunkley-Will- 
 
 § 3389. 
 
 612
 
 Appeals. § 403 
 
 be given, operates to revive and continue the writ in force pending 
 the appeal. 88 In Montana it is declared that there is no statute 
 or other law vesting power in the Supreme Court to grant an order 
 modifying or vacating a perpetual injunction pending appeal from 
 a judgment embracing it. 89 
 
 § 403. In New Jersey. — In New Jersey it is provided by statute 
 that no appeal from an order granting an injunction shall suspend 
 or modify its operation without an order of the chancellor and that 
 a suspension or modification thereof shall extend only so far as may 
 be necessary to preserve the subject of the appeal, and shall not 
 in any case be allowed to destroy the right established or pro- 
 tected by the decree appealed from. 90 So it is decided that an 
 appeal in all cases will have the effect given to it which shall be 
 necessary to preserve the subject to which the appellate procedure 
 relates, in such a condition as will enable the appellate court to 
 render an efficacious decree in the premises and that for this pur- 
 pose an injunction decree will be suspended or continued, or a 
 previous injunction revived, by the act of filing an appeal, when- 
 ever such construction shall be necessary for the end above stated. 91 
 And in an early case in this State it is held that on an appeal from 
 an ord<r of the chancellor dissolving an injunction, the Court of 
 Errors and Appeals will sometimes revive the injunction pending 
 the apreal either upon a pure injunction bill where the whole mat- 
 ter in controversy is the continuance of the injunction, and where 
 consequently the object of the suit would be defeated if the appel- 
 lee were not for the time restrained, or where the revival of the 
 injunction by the appellate court is necessary to prevent irreparable 
 
 iams Co., 141 Mich. 409, 104 N. W. which case the court refused under 
 
 772. this statute to suspend, pending ap- 
 
 88. State v. District Court, 78 peal, an injunction granted to re- 
 Minn. 464, 81 N. W. 323; citing and strain defendant from interfering 
 following State v. Duluth St. Ry. Co., with a strong hand to prevent com- 
 47 Minn. 369. plainant from constructing certain 
 
 89. Maloney v. King, 26 Mont. 492, improvements under a lease. 
 
 68 Pac. 1014. 91. Pennsylvania R. R. Co. v. Na- 
 
 90. Hoboken &, Manhattan R. R. tional Dry Docks & N. J. C. R. Co., 
 Co. v. Jersey City, Hoboken & P. R. 54 N. J. Eq. 647, 35 Atl. 433. 
 
 Co., 70 N. J. Eq. 123, 62 Atl. 539, in 
 
 613
 
 §403 
 
 Appeals. 
 
 mischief to the appellant. 92 An injunction may also be continued 
 pending an appeal by complainant from a decree dismissing the 
 bill, and the enforcement of the decree should be stayed when its 
 enforcement pending the appeal would render it impossible to set 
 the appellant right again if successful in his appeal. 93 But where, 
 on an application for a preliminary injunction, an order to show 
 cause is granted, with an ad interim injunction order, and the 
 court subsequently refuses an injunction, on the ground that the 
 law on which complainant's right depends is unsettled, the injunc- 
 tion order will not be continued in force pending the appeal. 94 
 For to continue it in force in such a case would put it in the com- 
 plainant's power to get his injunction against the conviction of 
 the chancellor that he was not entitled to it. 95 
 
 92. Van Walkenburgh v. Rahway 
 Bank, 8 N. J. Eq. 725. 
 
 93. Jewett v. Dringer, 29 N. J. 
 Eq. 19!). In this case the defendant 
 was enjoined from disposing of the 
 property in question on the ground 
 that he had fraudulently obtained it 
 from complainant. On appeal from 
 the decree dismissing the bill, the in- 
 junction was continued because other- 
 wise the judgment creditors would 
 at once seize and sell it . . . the 
 vice chancellor said: "Against a re- 
 sult so disastrous and reproachful to 
 the administration of justice the com- 
 plainant is entitled to protection. 
 The injunction will be continued for 
 the present, but the defendant shall 
 be at liberty at any time during the 
 pendency of the appeal to have it dis- 
 solved and the property restored to 
 him, on giving a bond to the com- 
 plainant in the sum of $20,000 with 
 sufficient surety conditioned that if 
 plaintiff is successful on the appeal, 
 he will pay him any sum he may re- 
 cover under or equal to the sum 
 named in the bond." As to court's 
 power to continue the injunction 
 
 pending the appeal it cited Chegary 
 v. Scofield, 5 N. J. Eq. 525; Ryer- 
 son v. Boorman, 7 N. J. Eq. 040; 
 Schenck v. Conover, 13 N. J. Eq. 31. 
 
 94. Delaware, L. & W. R. Co. v. 
 Central Stock- Yard & Transit Co., 43 
 N. J. Eq. 77, 10 Atl. G02. 
 
 95. Central R. Co. v. Standard Oil 
 Co., 33 N. J. Eq. 372. In Chegary v. 
 Scofield, 5 N. J. Eq. 525, it was held 
 that an appeal lies from an order 
 dissolving an injunction, and that 
 though the appeal does not of itself 
 stay proceedings on the order ap- 
 pealed from, yet, after appeal the 
 Court of Appeals may stay proceed- 
 ings on the order dissolving the in- 
 junction. In Doughty v. Somerville, 
 etc., R. Co., 7 JM. J. Eq. 629, on ap- 
 peal from an order dissolving an in- 
 junction, the chancellor granted an 
 order staying the proceeding to re- 
 strain which the injunction had 
 issued until the next sitting of the 
 Court of Errors and Appeals. A mo- 
 tion was made in the latter court at 
 its next sitting for an order extend- 
 ing the stay until the hearing on the 
 appeal. It was held that this court 
 
 614
 
 Appeals. 
 
 §404 
 
 §404. In New Jersey, continued. — Where an injunction has 
 been issued within ten days after the decree authorizing it, an 
 appeal from such decree within the ten days suspends the opera- 
 tion of the writ, ipso facto, and it is unnecessary to apply to the 
 court to dissolve th° injunction, or to stay the issuance of process 
 on the decree. The complainant may, however, come in and show 
 good cause why the injunction should not be stayed, and then the 
 court may feel called upon in the exercise of its discretion to 
 award and enforce the injunction, notwithstanding the appeal. 9 * 
 It would seem that in England, and in New York under the old 
 chancery regime, and in New Jersey under present equity practice 
 and rules, whether the complainant should be permitted to enforce 
 his decree awarding an injunction, notwithstanding the defend- 
 ant's appeal from it, rests in the discretion of the court.* 7 
 
 had tlie power to make such an order 
 but that the power rested in the 
 sound discretion of the court. 
 
 96. Osborne v. Williams, 40 N. J. 
 Eq. 41)0, 4 Atl. 439, per Bird, V. C: 
 "Clearly under the rule (149). and 
 the case of Schenck v. Conover, 13 N. 
 J. Eq. 31, the complainant was not 
 entitled to his writ at the time it 
 was issued. It seems to me just as 
 clear that the filing of defendant's 
 notice of appeal within the ten days 
 stays the writ of execution until the 
 further order of this court." 
 
 97. Schenck v. Conover. 13 N. J. 
 Eq. 31. per Green, Ch.: "The appli- 
 cation is to the sound discretion of 
 the court. By the practice of the 
 English court of equity, as well as 
 by the practice of this court, so far 
 as regulated by statute, an appeal 
 from a decree in equity, either inter- 
 locutory or final, does not stay pro- 
 ceedings in the court below or pre- 
 vent the issuing of process without a 
 special order for that purpose. Hu- 
 guenin v. Bnseley, 15 Ves. 180, 184; 
 Way v. Foy, 18 Ves. 452; Waldo 
 v. Caley, 16 Ves. 206; Wilan v. 
 
 Wilan, 16 Ves. 216. By the New 
 York practice, as it existed at and 
 prior to the time of Chancellor Kent, 
 an appeal in the first instance oper- 
 ates to stay proceedings on the point 
 appealed from; and if the party 
 wishes to proceed, notwithstanding 
 the appeal, he must make applica- 
 tion to the chancellor for leave to 
 proceed. Green v. Winter, 1 Johns. 
 Ch. 77; Messonier v. Kauman, 3 
 Johns. Ch. 66. By either practice, 
 whether the party shall be permitted 
 to proceed, notwithstanding the ap- 
 peal, rests in the discretion of the 
 court. We follow the English prac- 
 tice, except so far as it may be mod- 
 ified by statute, or by rule or estab- 
 lished practice in this court. West 
 v. Paige, 9 N. J. Eq. 203. Independ- 
 ent of rule 20, § 2, of this court, the 
 complainant would have been en- 
 titled to his execution, as of course 
 at any time after final decree, not- 
 withstanding the appeal. By the rule, 
 if the appeal be filed within ten days 
 after final decree, it prevents the 
 issue of process without a special 
 order for that purpose. If the appeal 
 
 615
 
 § 405 Appeals. 
 
 § 405. In New York. — In New York it is declared that where 
 the plaintiff has obtained the injunction which the action is 
 broughi; to secure, the court, on appeal, in a proper case, may 
 suspend its operation ; but where the plaintiff has been defeated in 
 his action and in maintaining his injunction, and it has been dis- 
 solved, there is no power in the court to revive it pending an 
 appeal. 98 And in this case it also decided that upon appeal from 
 the judgment denying the relief sought and giving costs to defend- 
 ant, the plaintiff on giving the proper undertakings provided for 
 by Code," is entitled to a stay of execution pending appeal, and 
 that that is the only relief pending appeal which the plaintiff can 
 have. 1 So an appeal from an order granting an interlocutory in- 
 junction does not stay its operation so as to justify defendant in 
 disobeying it. 2 And an appeal from an order dissolving an injunc- 
 tion does not revive or reinstate it. 3 In an early case in this State 
 it was held that on appeal from an order in chancery dissolving an 
 injunction, the chancellor might, where there was a probable cause 
 for appealing, restrain the defendant in relation to the subject 
 matter of the original injunction until the complainant had a 
 
 be not filed within that time, the Where an order granting an 
 
 execution may issue, and proceedings injunction is affirmed by the gen- 
 
 thereon will not be stayed except for eral term of the New YorK Supreme 
 
 good cause in the discretion of the Court, the special term has no au- 
 
 eourt. If the court, in the exercise thority to suspend the operation of 
 
 of this discretion, see that in case the injunction pending an appeal to 
 
 the decree should be reversed, the the Court of Appeals, so as to allow 
 
 party cannot be set right again— if defendant to do the prohibited acts 
 
 the complainant proceeas to a sale during such time. Genet v. Dela- 
 
 under his execution— there is a ware & H. Canal Co., 4 N. Y. Supp. 
 
 strong reason for a stay of execu- 633, 56 N. Y. Super. Ct. 290. 
 
 tion. If on the other hand the stay 99. Code Civ. Proc, §§ 1326, 1327. 
 
 of execution is unnecessary to pro- 1. Carpenter v. Fisher, 18 App. 
 
 tect the rights of the appellant under Div. (N. Y.) 561, 46 N. Y. Supp. 5. 
 
 the appeal, and must operate preju- 2. Power v. Athens, 19 Hun (N. 
 
 dicially to the complainant, the court Y.), 165; Stone v. Carlan, 2 Sandf. 
 
 ought not to interfere." (N. Y.) 738. This was the rule in 
 
 98. Carpenter v. Fisher, 18 App. the former court of chancery. Hart 
 
 Div. (N. Y.) 561, 46 N. Y. Supp. 5. v. Albany, 3 Paige (N. Y.), 381. 
 
 See, also, Spears v. Mathews, 66 N. Compare Green v. Winter, 1 Johns. 
 
 Y. 127; Fellows v. Heermans, 13 Ch. (N. Y.) 77. 
 
 Abb. Pr. (N. S.) 1. 3. Hoyt v G el 8 ton, 13 Johns. (N. 
 
 616
 
 Appeals. 
 
 406 
 
 reasonable time to have his appeal heard before the appellate 
 court. 4 As a condition of staying the enforcement of a final in- 
 junction pending appeal, it is improper to require an undertaking 
 to pay liquidated damages in case of affirmance, but it should be 
 conditioned to pay such damages as may be sustained by plaintiff 
 by reason of defendant's continuing, during the pendency of the 
 appeal, the acts enjoined. 5 
 
 §406. In North Carolina; Ohio. — In North Carolina it is 
 decided that an appeal from an order dismissing a temporary in- 
 junction does not continue the injunction. 6 In Ohio, an appeal 
 from an interlocutory order dissolving an injunction suspends the 
 effect of the order so that the injunction remains in force. 7 
 
 Y.) 139; Wood v. Dwight, 7 Johns. 
 Ch. (N. Y.) 295; Jewett v. Albany 
 City Bank, Clarke Ch. (N. Y.) 59. 
 See, also, Hart v. Albany, 3 Paige 
 (N. Y.), 381. 
 
 4. Hart v. Albany, 3 Paige (N. 
 Y.), 381. In order, under the chan- 
 cery practice, to reinstate an injunc- 
 tion pending an appeal from an order 
 dissolving it. a case had to be made 
 showing something like irreparable 
 injury if not allowed. Coster v. Gris- 
 wold, 4 Edw. Ch. (N. Y.) 364. See 
 Graves v. Maguire, 6 Paige (N. Y.), 
 381. 
 
 5. Pach v. Geoffrey (Sup.), 19 N. 
 Y. Supp. 583, per Patterson, J.: 
 " The order made etaying proceedings 
 on the appeal was within the dis- 
 cretion of the judge to whom the ap- 
 plication was made, and we see no 
 reason for disturbing that order, so 
 far as the stay is concerned. But 
 the conditions imposed we regard as 
 onerous in the extreme. There was 
 nothing presented as reliable proof 
 which justified fixing the amount of 
 the undertaking to be given at $15,- 
 000, or establishing that amount as 
 liquidated damages. All that ap- 
 
 pears is a statement in the affi- 
 davit of the plaintiff's attorney, 
 that plaintiff has informed your de- 
 ponent that the expenses of this liti- 
 gation have amounted to $5,000. . . . 
 This is perfunctory swearing, and 
 must be discouraged. There was 
 nothing before the court to justify 
 such an undertaking, nor is it proper 
 on such a motion to require that the 
 undertaking shall be for liquidated 
 damages. It should be conditioned 
 that the defendants will pay to plain- 
 tiffs such damages as may be sus- 
 tained by plaintiffs by reason of the 
 defendant's continuing during the 
 pendency of the appeal the acts en- 
 joined by the decree." 
 
 6. Reyburn v. Sawyer, 128 N. C. 
 8, 37 S. E. 954. 
 
 See, also, Green v. Griffin, 95 N. 
 C. 50; McRae v. Com'rs, 74 N. C. 
 415; Coates v. Wilkes, 94 N. C. 174. 
 As to a stay pending an appeal and 
 its effect, the court in Green v. Grif- 
 fin, supra, cites Sixth Ave. R. Co. v. 
 Gilbert El. R. Co., 71 N. Y. 430; 
 Fremont v. Mining Co., 7 Cal. 130; 
 Yocum v. Moore, 4 Bibb. (Ky.) 221. 
 
 7. Pittsburg, etc., R. Co. v. Hurd, 
 
 617
 
 §§ 406a, 406b Appeals. 
 
 § 406a. In Texas. — A restraining order " pending " a hearing 
 to show cause why a permanent injunction should not issue expires 
 by its own limitation when the hearing is had and the injunction 
 refused and an appeal from such a judgment does not continue 
 the restraining order in force during its pendency. 8 
 
 § 406b. In Washington. — In Washington an order granting a 
 temporary injunction cannot be suspenaed by an appeal therefrom 
 as the statutory provisions authorizing the filing of a supersedeas 
 bond 9 have no application to orders granting injunctive relief. 10 
 In a later case in Washington it is decided that the superior courts 
 exercising general equity jurisdiction, have all the powers of the 
 English chancery court, and have inherent power to suspend the 
 effect of a prohibitory injunction pending appeal. 11 In this case 
 it is also decided that the provision of the Code 12 that where a 
 final judgment shall be rendered by any superior court in a cause 
 where a temporary injunction has been granted, and the 
 party at whose instance such injunction was granted shall 
 appeal, such injunction shall remain in force pending the 
 appeal, does not affect the inherent power of the court, 
 to suspend the effect of a perpetual injunction pending 
 appeal by the party against whom the same was granted. 13 But 
 where an order is made requiring the adverse party to show cause 
 on a day certain why a temporary injunction should not be granted, 
 and in the meantime he is restrained by an emergency restraining 
 order, and before hearing upon the application for the temporary 
 injunction the cause is dismissed by the court, the restraining 
 order cannot be kept in force pending an appeal from the judg- 
 ment of dismissal, for if it could the moving party would have the 
 power, against the will of the court, to keep in force indefinitely an 
 order which was intended to remain in force only until regular 
 
 17 Ohio St. 144; Teaff v. Hewitt. 1 10. State v. Stallcup, 15 Wash. 
 
 Ohio St. 519; Ludlow v. Kidd, 3 Ohio, 263, 46 Pac. 2ol. 
 
 547 - 11. State v. Superior Court, 43 
 
 8. Rising v. Thompson, 96 Tex. Wash. 225, h6 Pac. 632. 
 154. 71 S. W. 14. 12. Bal. Code, § 6507. 
 
 9. Laws 1893, p. 119, §§ 6, 7. 13. State v. Superior Court, 43 
 
 Wash. 225, 86 Pac. 632. 
 
 618
 
 Appeals. §§406c, 406d, 407 
 
 action of the court could be had on the application for the injunc- 
 tion. 14 
 
 § 40Gc. In West Virginia ; Wisconsin — In West Virginia it is 
 declared that when once the injunction ceases by reason of its dis- 
 solution it is gone, end mere appeal does not restore it unless some 
 act or process staying or superseding the act of dissolution keeps 
 the injunction alive. 15 But an appeal and supersedeas to a decree 
 or order dissolving an injunction keeps it in force pending the 
 appeal, and the doing of acts prohibited by the injunction consti- 
 tutes contempt. 16 In Wisconsin, the court of last resort is deemed 
 to have inherent power to stay proceedings in any matter appealed 
 to it. 17 
 
 § 406d. In England. — There was a time in England when the 
 mere presenting of an appeal to the House of Lords suspended, 
 until the decision of the appeal, the whole jurisdiction of the 
 chancellor. 18 In 1772 it was held that the chancellor's jurisdiction 
 was suspended only as to the matter appealed from ; 19 and in 1807 
 the lords decided that an appeal did not operate as a stay, even on 
 the point appealed from, without an express order of the appellate 
 court, or unless, the chancellor thought proper to suspend the pro- 
 ceedings wholly or in part, pending the appeal. 20 
 
 § 407. Appeals from decree dismissing bill. — When an appeal 
 is taken from a final decree or order dismissing a bill for injunc- 
 tion, the inferior court has no power over the cause and cannot 
 
 14. State v. Lichtenberg, 4 Wash. giving proper security; and this ap- 
 St. 407, 30 Pac. 716. plies as well to an appeal from an 
 
 15. State v. Harness, 42 W. Va. order refusing to vacate a judgment 
 414, 26 S. E. 270. on default as to an appeal from the 
 
 16. State v. Harness, 42 W. Va. judgment. 
 
 414, 26 S. E. 270. 18. Hart v. Albany, 3 Paige, 381, 
 
 17. Levy v. Goldberg, 40 Wis. 308, 383. 
 
 where it was held to be the general 19. Lord Pomfret v. Smith, Pal- 
 policy of the law to allow a defendant mer's Pr. H. of L. 9. 
 to stay proceedings under a decision 20. Burke v. Browne, 15 Ves. 184; 
 of an inferior tribunal against him, Huguenin v. Baseley, 15 Ves. 180; 
 from which he has appealed, on his Warden, etc., v. Morris, 9 Ves. 316. 
 
 619
 
 § 408 Appeals. 
 
 grant an injunction therein, pending the appeal. Thus, where an 
 injunction against working a mine, pending a suit in equity, has 
 been dissolved by decree upon final hearing, the bill dismissed and 
 an appeal taken in such form as to operate as a supersedeas, the 
 lower court cannot thereafter restrain the successful party from 
 working the mine, pending the appeal. 21 It seems that the foregoing 
 rule would not apply where the chancellor had directed a modified 
 dismissal of the bill, instead of dismissing it absolutely. 22 In Ala- 
 bama, when a bill is dismissed by the chancellor and an injunction 
 granted under it is dissolved, it is his duty to prescribe the penalty 
 and condition of the appeal bond, if the complainant should desire 
 to take an appeal, and to have the injunction restored, pending the 
 appeal, and if the chancellor refuses to do so a mandamus may be 
 awarded to compel him. 23 
 
 §408. Objections barred on appeal. — An objection by a de- 
 fendant in an action for an injunction, that the facts alleged in 
 the complaint are not sufficient to confer jurisdiction upon the 
 courts to grant the relief sought, when not raised by answer or 
 presented at the trial, may not be raised on appeal. 24 Where plain- 
 tiff, in his complaint and upon the trial, asks only for equitable 
 relief, and fails to get it, he cannot complain, on appeal, because 
 the action was not retained so as to award him legal relief in 
 damages. 25 After a defendant has answered a bill for an injunc- 
 tion and submitted himself to the jurisdiction of the court without 
 
 91. Eureka, etc., Mining Co. v. original jurisdiction, without any 
 
 Richmond Min. Co., 5 Sawyer, 121. suit pending in which it could be 
 
 per Sawyer, J.: "There was no issued. Galloway v. Mayor, etc., 3 
 
 longer any case pending in which any DeG., J. & S. 60." 
 order could be made. The court 22. Coleman v. Hudson, etc., 
 
 theretore has no further jurisdiction Bridge Co., 5 Blatchf. 56. Compare 
 
 in the case except to execute the de- Goddard v. Ordway, 4 Otto, 672. 
 cree for costs, when the supersedeas 23. Ex parte Planters, etc., Ins. 
 
 is removed, if it should be removed, Co., 50 Ala. 390. 
 or till the decree is reversed and the 24. Cunningham v. Fitzgerald, 138 
 
 cause thereby reopened, upon the re- N. Y. 165, 33 N. E. 840. 
 ceipt of the mandate from the Ap- 25. Hawes v. Dobbs, 137 N. Y. 
 
 pellate Court. To issue a restraining 465, 33 N. E. 560. 
 order would be to exercise a new, 
 
 620
 
 Appeals. §§ 409, 410 
 
 objection, he cannot, on appeal, raise the objection that the com- 
 plainant had a perfect remedy at law. 26 
 
 § 409. Appeal record — An appeal from an order granting an 
 injunction, upon the facts alleged in the complaint, will not be 
 heard if the appeal record does not contain the complaint. 27 On 
 an appeal from an order refusing an injunction, the case must be 
 heard on the same facts as were before the court of first instance. 28 
 In Montana appeals, the California practice is followed, and no 
 bill of exceptions is necessary, but the appeal is heard upon the 
 complaint, answer, and affidavits, and any other papers or evidence 
 used on the hearing of the motion for injunction in the court 
 below. 29 
 
 § 410. Conclusiveness of findings. — In Illinois, the findings of 
 fact in an injunction suit, are not conclusive upon the Supreme 
 Court, and may be reviewed by that court on appeal from a judg- 
 ment of the appellate court. 30 But, ordinarily, the findings of fact 
 of a court, sitting as a court of chancery, will not be disturbed by 
 the appellate court, unless they are so manifestly erroneous as to 
 be the result of oversight or mistake. 31 Where a referee, in an 
 injunction suit, refuses to find certain conclusions of fact and law, 
 which prima facie are material to the issues, the burden rests upon 
 the successful party, on appeal, to show that the errors were harm- 
 less. 32 Where the findings of the court, as shown in the decree, are 
 
 26. Grandin v. Le Roy, 2 Paige, Transit, 9 Utah 31, 33 Pac. 229; 
 509; see § 52, ante. Wells v. Wells, V Utah, 68, 24 Pac. 
 
 27. Davis v. Fasig, 128 Ind. 271, 754; Ullman v. McCormick, 12 Col. 
 277, 27 N. E. 726. 553; Doe v. Vallejo, 29 Cal. 386; 
 
 28. Terhune v. Midland R. Co., 36 Coryell v. Cain, 16 Cal. 567. 
 
 N. J. Eq. 318; New Jersey Franklin- .32. Livingston v. Metropolitan EI. 
 
 ite Co. v. Ames, 12 N. J. Eq. 507. R. Co., 138 N. Y. 76, 33 M. E. 732; 
 
 29. Granite Mountain Min. Co. v. Sperb v. Metropolitan El. R. Co., 137 
 Weinstein, 7 Mont. 346, 17 Pac. 113; N. Y. 155, 32 N. E. 1050; Bookman 
 Hunt v. Steese, 75 Cal. 626, 17 Pac. v. New York El. R. Co., 137 N. Y. 
 920. 302, 33 N. E. 333; Sutro v. Manhat- 
 
 30. People v. Diedrich, 141 111. tan R Co., 137 N. Y. 592, 33 N. E. 
 665, 30 N. E. 1038. 334. 
 
 31. Block v. Salt Lake Rapid 
 
 621
 
 §§ 410a, 411 Appeals. 
 
 fully sustained by the evidence, and warrant a permanent injunc- 
 tion, the refusal to grant such an injunction is reversible error. 3 * 
 And it is reversible error to grant a perpetual injunction in favor 
 of one having only a leasehold interest with a contingent right of 
 reversal. 34 
 
 § 410a. Scope of review by appellate court. — In Connecticut 
 it is decided that upon an appeal from an order of the trial court 
 granting an injunction conclusions reached by such court upon 
 conflicting testimony will not be reviewed by the appellate court. 35 
 And in Illinois in the absence of a complete record it is decided 
 that on appeal it will be presumed that a sufficient showing was 
 made to warrant the chancellor in granting an order for an injunc- 
 tion without bond and without notice. 36 And in New York also on 
 an appeal from an order denying a motion for an injunction based 
 on affidavits merely pending suit in an action, the object of which 
 is to restrain the performance of certain acts by public officials 
 the court will not consider the questions involved in the action." 
 Likewise in Nebraska where affidavits in support of and against 
 the continuance of a temporary injunction are not preserved in a 
 bill of exceptions the court on appeal will presume that they were 
 sufficient to support the allegations of the petition and warrant the 
 issuance of the order. 38 
 
 § 411. Appeal or mandamus — Ordinarily, the mischief caused 
 by the improvident granting of an injunction, is to be remedied 
 by appeal, but when there has been a flagrant abuse of discretion 
 in the court below, the Supreme Court will interfere by mandamus 
 if the occasion is urgent. 39 And where an injunction has been 
 
 33. Farley v. O'Malley, 77 Iowa, Div. (N. Y.) 633, 78 N. Y. Supp. 
 631, 42 N. W. 435. 1021. The court in this case re- 
 
 34. Welsh v. New York El. R. Co., fused to interfere with the discretion 
 12 N. Y. Supp. 545. of the court below. 
 
 35. Kaspar v. Dawson, 71 Conn. 38. State v. Jessen, 66 Neb 515, 
 405, 42 Atl. 78. 92 N. W. 584. 
 
 36. Seneff v. Olivet Baptist 39. Detroit v. Circuit Judge. 79 
 Church, 89 111. A pp. 352. Mich. 384, 44 N. W. 622; Iron 
 
 37. Knowles v. Conklin, 77 App. Works v. Speed, 59 Mich. 272; Mac- 
 
 622
 
 Appeals. § 411 
 
 illegally granted it may be vacated by means of a writ of man- 
 damus, if the remedy by appeal is not sufficiently speedy to prevent 
 serious injury. 40 
 
 lean v. Circuit Judge, 52 Mich. 257; County Judge, 44 Mich. 479; Port 
 
 Van Norman v. Circuit Judge, 45 Huron, etc., R. Co. v. Judge of St. 
 
 Mich. 204. Clair, 31 Mich. 456. 
 40. Tawas, etc.. R. Co. v. Iosco 
 
 023
 
 § 412 Injunctions Against Fraud. 
 
 CHAPTER XII. 
 
 Injunctions Against Feaud. 
 
 Section 412. Enjoining frauds upon the law. 
 
 413. Equity jurisdiction of fraud. 
 
 414. Burden of proof on complainant. 
 
 415. Presumption of fraud. 
 
 416. Silence as fraud — suppressio veri. 
 
 417. Participators in fraud enjoined. 
 
 418. Enjoining proceedings at law. 
 418a. Same subject continued. 
 
 419. No injunction if remedy at law. 
 
 420. Complainant must show injury. 
 
 421. Contracts procured by fraud. 
 421a. Same subject — Rule illustrated. 
 421b. Same subject — Bonds. 
 
 422. Corporate fraud. 
 
 423. Breach of trust as fraud. 
 423a. Fraud by administrator. 
 
 424. Injunctive relief lost by laches. 
 
 425. Dissolution on answer where bill charges fraud. 
 
 Section 412. Enjoining frauds upon the law In accordance 
 
 with the maxim of universal law, that no one shall be permitted to 
 profit by his own fraud or to acquire property by his own crime, 
 a court of equity may enjoin from taking under a will, a legatee 
 who caused the death of the testator in order to prevent revocation. 1 
 And citizens of a State may in a proper case be enjoined from 
 bringing suits in another State merely for the purpose of evading 
 the laws of their own. Thus, where a judgment creditor and 
 debtor are both residents of Iowa, the court will enjoin the creditor 
 from attempting, in another State, to reach wages exempt in Iowa. 2 
 
 1. Preston v. Palmer. Abb. N. C. 3. Zimmerman v. Franke, 34 Kan. 
 452. See New York Mut. Life Ins. 650, 9 Pac. 747; Snook v. Snetzer, 25 
 Co. v. Armstrong, 117 U. S. 591, 599, Ohio St. 516. See, also, Engel v. 
 6 S. Ct. 877, 29 L. Ed. 997. Scheuerman. 40 Ga. 206; Dehon v. 
 
 2. Teager v. Landsley, 69 Iowa, Foster, 4 Allen (Mass.), 545; Vail v. 
 725, 27 N. W. 739; Hager v. Adams, Knapp, 49 Barb. (N. Y.) 299. 
 
 70 Iowa, 746, 30 N. W. 36. 
 
 G24
 
 Injunctions Against Fraud. § 413 
 
 And the rule is the same in Kansas and Ohio, 3 and in Texas. 4 So 
 a creditor will be enjoined from evading the laws of his own State 
 and bringing a suit in another State to obtain a preference over 
 other creditors which he could not have in his own. 5 And an in- 
 junction will lie to prevent a resident of a State from prosecuting 
 an attachment against another resident in the courts of another 
 State in violation of a statute against sending a claim out of the 
 State for collection in order to evade the exemption laws. 6 But a 
 court will not enjoin a suit in another Stat* on the ground that 
 the tenor of judicial decision in that State is different from its 
 own. 7 
 
 § 413. Equity jurisdiction of fraud. — A court of equity will 
 interfere to restrain the use of an advantage gained in a court of 
 ordinary jurisdiction, where such advantage has been gained by 
 the fraud, accident or mistake of another party. 8 So it is said to 
 be well settled that this jurisdiction of a court of equity will be 
 exercised whenever a party having a good defense, to an action at 
 law has been prevented by the fraud or improper management 
 of the other party from making it and by reason thereof a judg- 
 ment has been obtained which it is against conscience to enforce. 9 
 And the powers of courts of equity will be freely but cautiously 
 exercised to prevent one party to a contract or deed or suit from 
 obtaining by means of fraud an undue advantage over the adverse 
 party in cases in which the defrauded party has no adequate legal 
 remedy. 10 An injunction will not, however, be granted to prevent 
 
 4. Moton v. Hull, 77 Tex. 80, 13 S. N. E. 187, per Beck, J.: "Equity 
 W. 849. will use all its powers to circumvent 
 
 5. Keyser v. Rice, 47 Md. 203. fraud and will delight to use the writ 
 
 6. Wilson v. Joseph, 10/ Ind. 490, of injunction to defeat conspiracy." 
 8 N. E. 616. In Wingate v. Haywood. 40 N. H. 
 
 7. Carson v. Dunham, 149 Mass. 437, the enforcement of a fraudulent 
 52, 20 N. E. 312. judgment was perpetually enjoined, 
 
 8. Pearce v. Olney, 20 Conn. 544. Fowler J., saying that " equity has 
 See § 418 herein. so great an abhorrence of fraud that 
 
 9. Pearce v. Olney, 20 Conn. 544, it will set aside its own decrees if 
 554. Per Hinman, J. founded thereupon," and citing Ma 
 
 10. Palo Alto Banking & Invest- rine Ins. Co. v. Hodgson, 7 Craneh, 
 ment Co. v. Mahar. 65 Iowa. 74, 21 332; McDonald v. Neilson. 2 Cow. 
 
 625 
 40
 
 §413 
 
 Injunctions Against Fraud. 
 
 fraud unless the bill sets forth the specific acts of fraud. 11 It is not 
 enough that the bill contains loose general charges of fraud and 
 conspiracy, unless it also alleges facts which warrant an inference 
 of fraud. 12 To lay a ground for injunctive relief there must be an 
 averment of facts and not of mere suspicions. Thus, to obtain an 
 injunction against a judgment at law on the ground of perjury 
 and surprise in obtaining it, the bill must name the witnesses who 
 swore falsely, and set forth facts tending to show that their testi- 
 mony was false. 13 And if the, fraud alleged in the bill a3 the sole 
 ground of injunctive relief is not proved, the complainant is not 
 entitled to the relief on other grounds. 14 
 
 (N. Y.) 139; Reigal v. Wood, 1 
 Johns. Ch. (N. Y.) 402; Blake v. 
 Lowe, 3 Desaus. (S. C.) 263, 270; 
 Gainsborough v. Gilford, 2 P. Wms. 
 424 ; Jarvis v. Chandler, 1 Turn. & R. 
 319. 
 
 11. Powell v. Parker, 38 Ga. 644; 
 Northern C. R. Co. v. Walworth, 7 
 Pa. Dist. R. 766; Dicker9on v. Bank- 
 ers' Loan & I. Co., 93 Va. 498, 25 S. 
 E. 54. 
 
 Where complainant, who had 
 conveyed to plaintiff the use of 
 his name for manufacturing pur- 
 poses for 20 years, after that time 
 files a bill to enjoin the further use 
 of his name, and the contract was as- 
 serted by defendants to have con- 
 veyed a perpetual right to his name, 
 and the bill alleges that the actual 
 contract between the parties limited 
 the period to 20 years, and that if 
 the writings were capable of being so 
 construed as to give an unlimited 
 right to defendants, then such con- 
 struction would be a fraud on com- 
 plainant, and ought not to be 
 adopted, such allegation sufficiently 
 charges fraud. Dobbins v. Cragin 
 50 N. J. Eq. 640, 23 Atl. 172. 
 
 12. Brooks v. Dick, 135 N. Y. 652, 
 
 32 N. E. 230. See Hower v. Weiss, 
 etc., El. Co., 55 Fed. 356, where the 
 gravamen of the bill was fraud and 
 the injunction was sustained on ap- 
 peal, but by a divided court. 
 
 In Palo Alto Banking & Invest- 
 ment Co. v. Mahar, 65 Iowa, 74, 21 
 N. E. 187, Beck, J., said: "It is 
 insisted by counsel that the petition 
 shows no cause for an injunction 
 against Jenswold and Taylor. We 
 think differently. It alleges that these 
 defendants are about to receive a con- 
 veyance of the property and are con- 
 spiring with Maher to defraud plain- 
 tiffs." 
 
 In Ambler v. Choteau, 107 U. 
 S. 586, 1 S. Ct. 556, 27 L. 
 Ed 322, Waite, C. J., said: "The 
 words ' fraud ' and ' conspiracy ' 
 alone, no matter how often repeated 
 in a pleading, cannot make a case 
 for the interference of a court of 
 equity. Until connected with some 
 specific acts for which one person is 
 in law responsible to another, they 
 have no more effect than other words 
 of unpleasant signification." 
 
 13. Kersey v. Rash, 3 Del. Ch. 321. 
 
 14. Britton v. Brewster, 2 Fed. 
 160. 
 
 626
 
 Injunctions Against Feaud. 
 
 §414 
 
 § 414. Burden of proof on complainant. — While fraudulent 
 intent is often largely a matter of inference, 15 yet, to found a 
 claim for injunctive relief, the complainant must be able to create 
 more than suspicion ; he must establish the bad faith of defendant 
 beyond reasonable doubt. 16 An injunction should not be granted 
 on a fact or series of facts, which., though not free from suspicion, 
 are reasonably consistent with an honest intent. 17 And where a 
 party seeks to impeach a judgment, and enjoin its. collection, on 
 the ground of fraud, the burden of proof rests on him to establish 
 it. 18 But where the situation seems to clearly indicate fraud the 
 court may before full proofs are received grant a preliminary in- 
 
 15. Odenheimer v. Hanson, 4 Mc- 
 Lean, 437; Tardy v. Morgan, 3 Mc- 
 Lean, 358. 
 
 16. Gould v. Gould, 3 Story, 516 
 Hubbard v. Turner, 2 McLean, 519 
 Phettiplace v. Sayles, 4 Mason, 312 
 Babbitt v. Dotten, 14 Fed. 19. 
 
 17. A debtor sold his whole stock 
 of goods for cash some days before a 
 petition of his creditors for an in- 
 junction and a receiver was filed, at 
 a fair though somewhat reduced 
 price, the sale being conducted with- 
 out any concealment, and the inten- 
 tion and repeated efforts to sell hav- 
 ing been widely known in the busi- 
 ness community for some time prior 
 to the sale, and the goods were re- 
 moved publicly during business hours 
 to the vendees' store, where they re- 
 mained for several days, separate and 
 apart from their other stock. There 
 was no allegation or evidence that the 
 vendees were insolvent, and no ap- 
 pearance of collusion in the sale. 
 There was a conveyance of certain 
 real estate by the debtor to his wife, 
 but there was no evidence of fraud; 
 the conveyance having been made long 
 before the indebtedness was con- 
 tracted, and, so far as appeared, not 
 
 in anticipation thereof. Held, that 
 there was no abuse of discretion on 
 the preliminary hearing, in refusing 
 to grant an injunction and appoint a 
 receiver. Einstein's Sons v. Lee, 89 
 Ga. 130.. 15 S. E. 27. In an action in 
 which an injunction was asked, to re- 
 strain defendant from selling or dis- 
 posing of his property pendente lite, 
 an affidavit by defendant, stating that 
 the restraint of the use of his prop- 
 erty, or any order preventing him 
 from applying it to his necessities, 
 will be a great hardship, furnishes no 
 ground for a belief that he will dis- 
 pose of his property pending the ac- 
 tion with intent to defraud plaintiff. 
 Campbell v. Ernest, 64 Hun, 188, 19 
 N. Y. Supp. 123. Where defendant's 
 place of business was not near plain- 
 tiff's, and for a long time its adver- 
 tisements and notices stated that it 
 had no connection with plaintiff, and 
 its signs are essentially different, it 
 will not be held to have made a 
 fraudulent use of its name. Scott 
 Stamp & Coin Co. v. J. W. Scott Co., 
 15 N. Y. Supp. 325, 58 N. Y. Super. 
 Ct. 379. 
 
 18. Daly v. Ogden, 28 111. App. 
 319. 
 
 627
 
 § 415 Injunctions Against Fraud. 
 
 junction to preserve the status quo until the facts shall be fully 
 developed by those proofs and final hearing. 19 
 
 § 415. Presumption of fraud. — Fraud which entitles a creditor 
 to injunctive relief, will easily be inferred where the debtor's 
 suspected transactions have been with members of his own family. 20 
 So although a husband, as guardian of his wife, was indebted to 
 her in a much larger amount than the value of all his property 
 transferred by him to her, yet, where the facts indicate an intent 
 to defraud creditors by the transfer, such as the transfer of personal 
 jewelry and office furniture, without change of possession, a tem- 
 porary injunction restraining the transfer of the personal property 
 by the wife, will be continued until final hearing. 21 And the fore- 
 closure, by a wife, of a chattel mortgage, given to her by her hus- 
 band in fraud of creditors, will be enjoined at the instance of an 
 attaching creditor, before he has reduced his demand to a judg- 
 ment. 22 And where a firm was hopelessly insolvent, owing various 
 creditors, and incurred large debts after having executed a. written 
 agreement to mortgage all their assets to a favored creditor, and 
 afterwards executed the mortgage, and turned over to such cred- 
 itor all their notes and claims, an injunction was granted to other 
 creditors restraining the preferred creditor from collecting the 
 notes and securities, and from foreclosing the mortgage. 23 Fraud 
 will easily be presumed where an infant or imbecile, or an intoxi- 
 cated person, has parted with his property for a trifling considera- 
 tion. Thus, an injunction was issued to prevent the sale of 
 
 19. Lundy v. Seymour, 55 N. J. with the fraud of T., the sheriff 
 Eq. 1, 35 Atl. 893. would be enjoined from paying to the 
 
 20. One T., a merchant, drew $17,- father on his judgments the money 
 000 from the bank, and visited his derived from the sale of T.'s goods, 
 father the same day. The latter was Memphis Grocery Co. v. Trotter 
 a small merchant in a neighboring (Miss.), 7 So. 550. 
 
 town. The next day T. made an as- 21. Babcock v. Jones, 62 Hun, 565, 
 
 signment for the benefit of creditors. 17 N. Y. Supp. 67. 
 
 His property was attached and sold. 22. Meacham Arms Co. v. Swarts, 
 
 His father settled with some of the 2 Wash. Ter. 412; Hahn v. Salmon, 
 
 creditors, and took judgments against 20 Fed. 801. 
 
 T. Held, that in view of many cir- 23. Fechheimer v. Baum, 37 Fed. 
 
 cumstances connecting the father 167. 
 
 628
 
 Injunctions Against Feaud. §§ 416, 417 
 
 mortgaged premises, where it appeared that the mortgagor was 
 an habitual drunkard, and had been reduced to the verge of in- 
 sanity, by the mortgagee, who could not show that he had given 
 valid consideration for the mortgage. 24 And a court of equity will 
 enjoin the enforcement of a note and mortgage, at the instance of 
 a widow who was induced to execute them by threats to prosecute 
 her son for a crime. 2 " 
 
 § 416. Silence as fraud; suppressio veri. — The fraud may con- 
 sist in concealment and suppression as well as in positive misrepre- 
 sentation. 26 So if an owner stands by and knowingly suffers an 
 innocent person to purchase his property without giving him notice 
 of his title, he may be enjoined on the ground of fraud from a sub- 
 sequent assertion of his title to the prejudice of the purchaser. 27 
 And a person not intending to pay, by inducing one to sell him 
 goods on credit through the fraudulent concealment of his in- 
 solvency, is guilty of fraud, which entitles the vendor to injunctive 
 relief. 28 
 
 § 417. Participators in fraud enjoined. — Not only will the 
 prime actor in the fraud be enjoined, but also any other person 
 
 24. Van Horn v. Keenan, 28 111. of such mortgage from plaintiff, 
 445; Rembert v. Brown, 17 Ala. 667. where the complaint alleges that the 
 In Reese v. Reese, 89 Ga. 645, 15 S. E. mortgage was fraudulent to the 
 846, a son who had obtained a note knowledge of defendant and plaintiff's 
 from his father while he was non vendor, and that its concealment was 
 compos, was enjoined from proceed- with the intent to defraud plaintiff, 
 ing with an action on the note, the evidence of defendant's participation 
 bill alleging that he intended to carry in the concealment and in inducing 
 the money beyond the State and con- plaintiff to purchase the premises 
 vert it to his own use. under the belief that they were free 
 
 25. Turley v. Edwards, 18 Mo. from incumbrance is admissible. 
 App. 676. Briggs v. Langford, 59 Hun (N. Y.), 
 
 26. In an action to restrain fore- 615, 12 N. Y. Supp. 657. 
 
 closure of a mortgage purchased by 27. New England Ins. Co. v. The 
 
 defendant on premises previously pur- Sarah Ann, 2 Sumn. 206 ; aff'd 13 
 
 chased by plaintiff, on the ground Pet. (U. S.) 387, 10 L. Ed. 213. 
 
 that at the time of plaintiff's pur- 28. Fechheimer v. Baum. 37 Fed. 
 
 chase defendant and plaintiff's vendor 167 ; Jaffrey v. Brown, 29 Fed. 477. 
 fraudulently concealed the existence 
 
 629
 
 § 418 Injunctions Against Fraud. 
 
 who takes title to the property in question with knowledge of the 
 equities attaching to it, and so lends himself to the furtherance of 
 the artifice. 29 But the rule is otherwise as to a stranger to whom 
 the affected property is transferred in the ordinary course of busi- 
 ness and without any notice of the fraud. Thus an injunction 
 against the- foreclosure of a mortgage, on the ground of fraud in 
 the procurement of title by the mortgagor, is properly refused 
 where there is sufficient evidence that the mortgagee is a bona fide 
 creditor, without notice of such fraud. 30 But a petition to restrain 
 the governor from acting on the return and report of the census 
 taker, in proceedings for the organization of a new county, alleging 
 fraud on the part of the census taker and others, but not that the 
 fraud was ever brought to the attention of the governor, or that 
 he refused an investigation of it under the statutes, does not author- 
 ize an injunction. 31 
 
 § 418. Enjoining proceedings at law. — A court of equity will 
 sometimes enjoin proceedings at law in which one party by means 
 of fraud, accident or mistake is obtaining an unfair* advantage over 
 another, and so will prevent a court of law from being made an 
 instrument of injustice for which there is no legal remedy. 32 This 
 
 29. G. procured a contract for the continued the erection of the flat as 
 
 purchase of a lot in the city of her agent. Held, that its erection 
 
 Brooklyn, situated in a neighborhood would be enjoined, since the wife 
 
 which was occupied by the residences bought the land subject to plaintiff's 
 
 of people of wealth and social stand- equities, which attached as soon as he 
 
 ing, and which had never been invaded acquired title to the same. Lewis v. 
 
 by flats or tenement-houses. Upon Gollner, 129 N. Y. 227, 29 N. E. 81; 
 
 his announcing his intention to build reversing 14 N. Y. Supp. 362. 
 a seven-story flat in the rear of 30. Putney v. Kohler, 84 Ga. 528, 
 
 plaintiff's residence, plaintiff bought 11 S. E. 127. That a transferee is 
 
 his contract, under an agreement that not estopped by the transferrer's 
 
 he would not " construct or erect any fraud of which he has no knowledge, 
 
 flats in plaintiff's immediate neigh- see Parsons v. Joseph, 92 Ala. 403, 8 
 
 borhood." G. thereupon proceeded to So. 788. 
 
 build a flat on a lot opposite the 31. Martin v. Ingham, 38 Kan. 
 
 other one, but before its completion 641, 17 Pac. 162; Martin v. Lacy, 39 
 
 eold the lot to his wife, who had Kan. 703. 18 Pac. 951. 
 knowledge of the contract with plain- 32. Tyler v. Hamersley, 44 Conn. 
 
 tiff, for about one-third its cost, and 419. 
 
 630
 
 Injunctions Against Fraud. § 418a 
 
 principle has been applied where an administrator obtained a judg- 
 ment in a foreign jurisdiction, without any intentional fraud, 
 which would have been fraudulent if taken by the intestate by 
 reason of a special agreement into which he had entered. 33 A court 
 may also enjoin the enforcement of its own decree of foreclosure 
 shown in a creditor's suit to be fraudulent as to creditors. 34 And 
 where summary proceedings for the possession of leased premises 
 were instituted against the tenant, it was held that the tenant could 
 maintain a suit to enjoin the proceedings on the ground that he 
 had been induced by fraud to execute a paper purporting to change 
 his tenancy from a tenancy from year to year to a tenancy at will. 35 
 Again, where there is a conspiracy to defeat a deed on the false 
 ground that it is forged, equity will enjoin the conspirators from 
 making and accepting deeds with the intention of conveying to 
 innocent purchasers. 36 
 
 § 418a. Same subject continued. — Where a judgment against 
 a surety was procured by means of artifice and circumvention and 
 was obtained in contempt of an injunction of the court and the 
 assertion of any right under it would have been fraudulent, it was 
 determined that the judgment creditor must be perpetually en- 
 
 33. Stanton v. Embry, 46 Conn. a suit to enjoin the foreclosure of the 
 595. fraudulent mortgage, and this, with- 
 
 34. Becker v. Church, 42 Hun (N. out regard to whether his own mort- 
 Y.), 258; aff'd 115 N. Y. 562, 22 N. gage was or was not due, and without 
 E. 748. regard to whether the mortgagor was 
 
 35. Robinson v. Springfield Co., 21 or was not insolvent. McCormick v. 
 Fla. 203. In Crawford v. Fisher, 10 Hartley, 107 Ind. 248, 6 N. E. 357. 
 Simons, 479, it is said, " one court of 36. Palo Alto Banking & I. Co. v. 
 equity has overhauled the decree of Mahar, 65 Iowa, 74, 21 N. W. 187, 
 another court for fraud, contrivance per Beck, J.: "Equity will not in 
 or covin in obtaining it." A mort- such cases be particular to inquire 
 gage of chattels was not recorded into the precise effect of the fraud, 
 within ten days, as required by law, or whether there may not be some 
 and, before a new mortgage was given other remedy than by injunction 
 in renewal, the mortgagor fraudu- which will defeat it. The fraudulent 
 lently executed an intervening mort- confederation being shown, equity 
 gage, with the design of cutting off will lay its hand heavily on the con- 
 the rights of the bona fide mortgagee. spirators and arrest their efforts to 
 Held, that the latter could maintain wrong their intended victims." 
 
 631
 
 § 419 Injunctions Against Fkaud. 
 
 joined from proceeding upon the judgment. 37 And a bill in equity 
 will lie to enjoin the prosecution of a pending suit at law upon a 
 policy of life insurance, and to compel the surrender of the policy 
 for cancellation, where it was reinstated during the insured's last 
 illness, after it had been allowed to lapse for non-payment of 
 premiums, upon the false and fraudulent certification of the 
 insured and his physician that he was then in as good health as 
 when first examined upon his application for the policy. 38 The 
 power of a court of equity, however, to restrain the collection of a 
 judgment, or the prosecution of a suit at law upon evidence show- 
 ing accident, mistake or fraud should not be exercised except in 
 cases where the purposes of justice clearly require it. 
 
 § 419. No injunction if remedy at law. — A court of equity will 
 not ordinarily interfere to frustrate an act or scheme of fraud, 
 where the complainant has an equally prompt and effective remedy 
 in a court of law. 40 And a bill in equity to enjoin the prosecution 
 of a suit at law will not be entertained where the defense to it can 
 be made as well at law as in equity. 41 So it is decided that equity 
 will not restrain an action at law on the ground of fraud where 
 the fraud alleged would be a complete and perfect defense to the 
 
 37. Coge's Ex'rs v. Cassidy, 23 an injunction against the prosecu- 
 How. (U. S.) 109, 16 L. Ed. 430. tion of suits on the notes. Held, that 
 
 38. John Hancock Mut. L. I. Co. as the petition disclosed a good de- 
 v. Dick, 114 Mich. 337, 72 N. W. 179, fense to suits on the notes, plaintiffs 
 43 L. R. A. 566. Compare Insurance were not entitled to an injunction. 
 Co. v. Bailey, 13 Wall. (U. S.) 616, Hardy v. First Nat. Bank, 46 Kan. 
 20 L. Ed. 501. 88, 26 Pac. 423. A bill to enjoin a 
 
 40. An investment company was judgment by default on a policy of in- 
 organized to purchase land. By the surance, on the ground that service 
 fraud of its president and secretary, on a " late agent " of the complain- 
 plaintiffs were induced to take shares, ant was insufficient, and that the 
 paying part cash, and giving their policy had been fraudulently altered, 
 notes for the balance. The president was dismissed; remedy by writ of 
 and secretary were also the officers error being complete, and the judg- 
 of the bank to which they sold the ment void if obtained without juris- 
 notes. In a suit to set aside the diction. Alabama Ins. Co. v. King- 
 purchase and to cancel the notes, the man. 21 111. App. 493. 
 plaintiffs alleged that the bank had 41. Payson v. Lawson, 134 Mass. 
 notice of the fraud, and they prayed 593 45 Am. Rep. 348. 
 
 632
 
 Injunctions Against Fraud. § 420 
 
 action at law. 42 So equity will not enjoin the prosecution of an 
 action at law to recover chattels mortgaged by a married woman for 
 the debt of her husband, even though the mortgage was procured 
 by fraud. The law affords her full opportunity for defense. 43 And 
 the enforcement of a judgment will not be restrained for fraud, 
 unless the fraud was in the procurement of the judgment, and not 
 merely in the cause of action on which the judgment was founded, 
 and which could have been interposed as a defense. 44 But the rule 
 that a judgment silences all defenses which might have been urged 
 against its rendition cannot be invoked in an action to enjoin its 
 execution for fraud when the fraud alleged consists in acts of the 
 party which prevented his adversary from setting up his defenses. 45 
 And a person defrauded may sometimes have injunctive relief, 
 where the legal remedy would be less certain and effective. 46 
 
 § 420. Complainant must show injury. — While a large part of 
 the jurisdiction of equity consists in its power of dealing with 
 fraud and its consequences, no party can obtain injunctive relief 
 against fraud, unless he shows that he has sustained or is about to 
 
 42. Roemer v. Canlon, 45 N. J. Eq. Ala. 564; Peeples v. Burns, 77 Ala. 
 234, 19 Atl. 664. 290." 
 
 43. Bergan v. Jeffries, 80 Ala. 349, 44. Payne v. O'Shea, 84 Mo. 129; 
 per Somerville, J.: "The fact that a Ward v. Quinlivin, 57 Mo. 426; Mur- 
 fraud was perpetrated on the wife by phy v. De France, 101 Mo. 151, 13 
 the unauthorized use of her name S. W. 156. 
 
 would not give jurisdiction, because 45. United States v. Throckmor- 
 
 fraud alone, without some other ton, 98 U. S. 61, 25 L Ed. 93; 
 
 ground of cognizance, does not au- Pearce v. Olney, 20 Conn. 554; Laz- 
 
 thorize a party to seek redress in a arus v. McGuirk, 42 La. Ann. 194, 8 
 
 court of chancery, where he has a So. 253. 
 
 plain and adequate remedy at law. 46. Kelson v. Kockwell, 14 111. 
 
 Smith v. Cockrell ; 66 Ala. 64; Dick- 375, per Caton, J.: "It is the fraud 
 
 inson v. Lewis, 34 Ala. 643; Knotts which gives jurisdiction to this court, 
 
 v. Tarver, 8 Ala. 743. If the prop- and the aggrieved party is not 
 
 erty mortgaged were real estate, it obliged to resort to another tribunal 
 
 may be that under our decisions the possessed of less power and appli- 
 
 bill would not be without equity. But ances to ascertain the truth and grant 
 
 the reason of these cases has no ap- the requisite remedy, though the 
 
 plication to void conveyances of per- other tribunal may have jurisdiction, 
 
 sonal property. Ryall v. Prince, 71 See, also, Propst v. Meadows, 13 111. 
 
 Ala. 66; Boyleston v. Farrior, 64 157." 
 
 633
 
 §§ 421, 421a Injunctions Against Fraud. 
 
 sustain some injury from it. 47 But very slight injury will be suf- 
 ficient to entitle the defrauded party to relief. 48 
 
 § 421. Contracts procured by fraud. — One who is induced by 
 the fraud and misrepresentation of another to enter into a contract 
 may upon a proper showing of the facts be entitled to an injunc- 
 tion restraining such other party from bringing any suit to enforce 
 such contract. 49 The reason for the avoidance in equity of con- 
 tracts and instruments procured by fraud, is the reasonable appre- 
 hension that the evidence of the fraud may not always be attain- 
 able, and that the defense of fraud may not always be available at 
 law. And it is a natural consequence of the jurisdiction to cancel 
 a fraudulent instrument, that the court should restrain any pro- 
 ceedings through which a party is attempting to assert a right based 
 on the existence of the instrument. 50 
 
 § 421a. Same subject; rule illustrated. — Where a vendor 
 fraudulently represents that he has a good and perfect title to the 
 real estate sold, and the vendee, relying on such representation, is 
 induced to purchase, the collection of the purchase money may be 
 enjoined until the title shall have been made good as represented. 51 
 And where the obligor, in a bond for titles, sued the obligee in 
 ejectment, on failure of the latter to pay the entire purchase 
 money, and the obligee filed a bill alleging a misrepresentation of 
 a material fact by the obligor, at the time of purchase, as to the 
 area of the land ; that he acted on such misrepresentation ; that the 
 obligor could make no title to that part of the land so misrepre- 
 sented as belonging to the tract sold ; and offered to pay into court 
 whatever might be equitably due, and seeking to enjoin the action 
 of ejectment, which allegations were not denied, it was held that 
 
 47. Taylor v. Mallory, 76 Md. 1, 49. Dale v. Roosevelt, 5 Johns. Ch. 
 23 Atl. 1098. The party complaining (N. Y.) 174. 
 
 must not only appear to have been 50. Becker v. Church, 115 N. Y. 
 
 misled but also injured. Schubart v. 562. 22 N. E. 748. 
 
 Chicago Gas Light Co., 41 111. App. 51. Hinkle v. Margerum, 50 Ind. 
 
 181. 240. 
 
 48. Linn v. Green, 17 Fed. 407. 
 
 ! 
 
 634
 
 Injunctions Against Feaud. § 421b 
 
 the injunction should be granted, and the question whether the 
 obligee acted on the misrepresentation of the obligor or not, should 
 be left to a jury. 52 A vendee of land with notice of the rights of 
 a prior purchaser of the timber thereon will also be enjoined from 
 prosecuting an action at law against the latter to recover for the 
 timber removed by him and this is held true even though the 
 former transaction was insufficient under the statute of frauds 
 where the circumstances are such as would have entitled the claim- 
 ant thereunder to a specific performance. 53 Chancery will also 
 relieve against notes and executions obtained by fraud, by granting 
 a perpetual injunction. 54 So misrepresentations fraudulently 
 made as to the title, quality or quantity of personal articles sold is, 
 where the vendor is insolvent and holds the negotiable notes of the 
 purchaser, a ground of relief in equity through its injunctive 
 process to prevent a multiplicity of suits. In such a case the in- 
 junction should prohibit the defendant from assigning the note 
 or any judgment thereon; and from selling under execution with- 
 out giving a refunding bond. 55 But where a bill for an injunction 
 against a judgment obtained against plaintiff on a note executed by 
 him as surety, charged that the principal had induced him to sign 
 the note by fraudulent misrepresentations as to the purpose for 
 which the note was given and of the plaintiff's liability on account 
 thereof, but did not charge or prove fraud or misrepresentation by 
 the defendant to whom the note was executed it was held that the 
 bill stated no case for relief. 56 
 
 §421b. Same subject; bonds. — Where electors of a city have 
 been induced by false and fraudulent representations of a railroad 
 company to vote bonds to aid in the construction of its road, an in- 
 junction will lie on their application to restrain the collection of 
 the bonds. 57 The rule just laid down has been quite strictly applied 
 
 52. Elder v. Allison, 45 Ga. 13. Ch. 720. See Diekerson v. Bankers' 
 
 53. Oconto Co. v. Lindquist, 119 Loan & I. Co., 93 Va. 498, 25 S. E. 
 Mich. 264, 77 N. VV. 950. 548. 
 
 54. Henshaw v. Atkins, 2 Root 56. Griffith v. Reynolds, 4 Gratt. 
 (Conn.) 7. (Va.) 46. 
 
 55. Bridges v. Robinson, 2 Tenn. 57. Nash v. Baker, 37 Neb. 713, 
 
 635
 
 § 422 Injunctions Against Frat t d. 
 
 in Nebraska, owing to the doubtful propriety of employing the 
 power of taxation for the purpose of making donations to enter- 
 prises not directly connected with the administration of govern- 
 ment. 58 A proposition to issue bonds to aid a railroad company 
 is, upon its acceptance, in the nature of a contract, and therefore 
 persons induced by fraud to vote for the issue of the bonds may 
 on that ground enjoin their issuance. 59 
 
 § 422. Corporate fraud. — Ordinarily, courts of equity will not 
 interfere with the management of the affairs of a corporation, but 
 where officers of a corporation manage, through the instrumentality 
 of their power and position, to deprive an equitable owner of stock 
 of any of his rights, their act in its consequences is a fraud, against 
 which equity will give relief by injunction. And where, by fraud- 
 ulently refusing to transfer stock in a corporation, the officers are 
 put in a position, through the control they thereby acquire, to 
 seriously prejudice the interests of those who are justly entitled 
 to the transfer, and so act as to make their purpose to accomplish 
 that prejudice apparent, the meetings they can control will be 
 stayed by injunction, until the transfers can be compelled. 60 And 
 in an action to cancel the subscription of complainants to the stock 
 of a corporation, on the ground that it was procured by false repre- 
 sentations, and to obtain a return of the money paid for the stock, 
 it is proper to restrain by injunction any disposition of the cor- 
 porate property, and the money paid for the stock pending such 
 suit. 6 * And in such cases of corporate fraud, a court of equity will 
 sometimes appoint a receiver, and take possession and charge of 
 
 66 N. W. 376; Wullenwaber v. Duni- 59. Wullenwaber v. Dunigan, 30 
 
 gan, 30 Neb. 877, 47 N. W. 420. See, Neb. 877, 47 N. W. 420. 
 
 also, Curry v. Decatur Co., 61 Iowa, 60. Archer v. American Water 
 
 71, 15 N. W. 602; Sinnett v. Moles, Works Co., 50 N. J. Eq. 33, 24 Atl. 
 
 38 Iowa, 25; Henderson v. Railroad 508; Elkins v. Camden, etc., R. Co., 
 
 Company, 17 Tex. 560, 67 Am. Dec. 36 N. J. Eq. 467; Hilles v. Parrish, 
 
 675; Crump v. Mining Company, 56 14 N. J. Eq. 380. See., also, New 
 
 Am. Dec. 116, 7 Gratt (Va.) 352; York, etc., Transit Co. v. Parrott, 36 
 
 Wickham v. Grant, 28 Kan. 517. Fed. 462. 
 
 58. Midland Township v. County 61. Sherman v. American Stove 
 
 Board, 37 Neb. 582, 56 N. W. 317. Co., 85 Mich. 169, 48 N. W. 537. 
 
 636
 
 Injtjnctions Against Feaud. 
 
 §423 
 
 the property of the corporation pending the injunction suit. 62 A 
 stockholder may also have an injunction to restrain a fraudulent 
 issue of stock, if he is himself a holder in good faith, though his 
 vendor was not. 63 
 
 § 423. Breach of trust as fraud. — A breach of an express trust 
 is a fraud, for which an interlocutory injunction may be necessary, 
 pending a suit to establish the rights of the cestui que trust. 6 * A 
 creditors' bill, which alleges an indebtedness to plaintiffs, and that 
 notes were given therefor for the purpose of hindering plaintiffs 
 in bringing their action, and to enable the debtor to execute a deed 
 of trust, which plaintiffs ask to have adjudged fraudulent and void, 
 states a cause of action sufficient to sustain an order restraining 
 the defendant trustee from disposing of the property specified in 
 the deed of trust pending the action. 63 Where a partnership has 
 
 62. Featherstone v. Cooke, L. R. 
 16 Eq. 298; Auxiliary Co. v. Vickers, 
 L. R. 16 Eq. 303; Einstein v. Rosen- 
 f<>)d, 38 N. J. Eq. 309. 
 
 63. Parsons v. Joseph, 92 Ala. 
 403, 8 So. 788, distinguishing Dimp- 
 fell v. Ohio & M. Ry. Co., 110 U. S. 
 209, 3 S. Ct. 573, 28 L. Ed. 121; 
 Hawes v. Oakland, 104 U. S. 450, 26 
 L. Ed. 827. 
 
 64. A fund was given to a trustee 
 for the separate use of a married 
 woman for her life with power of 
 appointment by will, and in default 
 thereof to her child. Her husband 
 used the fund, having been substi- 
 tuted as trustee, in purchasing real 
 estate, adding his own money, and 
 taking the title to himself as trustee. 
 The wifv* died, having survived her 
 child, who left an infant heir at law. 
 Tho tiustee afterwards died, devis- 
 ing the property to defendant in 
 trust, to convey it to the State of 
 South Carolina on certain conditions, 
 ignoring the claims of the infant 
 heir at law. After a bill was filed on 
 
 behalf of the infant heir, claiming the 
 property with an account of rents and 
 profits, and subpoena served, defend- 
 ant addressed a letter to the general 
 assembly of South Carolina, asking 
 its acceptance of the property. The 
 general assembly at once put an act 
 on its passage for this purpose. Held, 
 that the right of complainant to as- 
 sert her claims was imperiled, and an 
 interlocutory injunction would be is- 
 sued. Lee v. Simpson, 37 Fed. 12. 
 
 65. Roberts v. Lewald. 107 N. C. 
 305, 12 S. E. 279, per Merriman, C. 
 J. : " The court has authority to 
 thus secure the fund arising from the 
 sale of the property. Otherwise, the 
 trustee might dispose of the property, 
 as directed by the deed, and greatly 
 embarrass, if not wholly defeat, the 
 right of the plaintiff to have the 
 same applied to the payment of their 
 debt, when, and if, they shall re- 
 cover judgment for the same. Frank 
 v. Robinson, 96 N. C. 28. 1 S. E. 
 781. The defendant's counsel relied 
 on Levenson v. Elson, 88 N. C. 182; 
 
 637
 
 §§ 423a, 424 Injunctions Against Feaud. 
 
 been dissolved, and the remaining partner is selling goods of the 
 firm for which the purchase price is owing, there is no abuse of 
 judicial discretion in enjoining such sales and appointing a re- 
 ceiver, on the filing of a creditors' bill, on condition that the debtor 
 may, by giving bond, retain possession and continue the sales. 68 
 And where a joint or common interest in an estate exists in several 
 persons, and one of them purchases an adverse claim against the 
 estate for the purpose of depriving the others of their interests, 
 it is decided that an attempt to enforce such claim by the pur- 
 chaser will be prevented by injunction. 67 
 
 § 423 a. Fraud by administrator. — When the administrator of 
 an estate, and other persons enter into a conspiracy and institute 
 proceedings to procure the sale of the property of the estate for 
 their own benefit, upon fraudulent claims allowed by the adminis- 
 trator, a court of equity has jurisdiction to arrest such proceeding 
 in the probate court, in which they were instituted, by injunction. 68 
 And it is decided that ejectment brought by an administrator, at 
 the instance of persons not in privity with him, in order to give 
 them the intestate's title to the land, they having no title of their 
 own, will be enjoined at the instance of the person in possession. 69 
 
 § 424. Injunctive relief lost by laches. — The party alleging 
 fraud may disentitle himself to injunctive relief by long acquies- 
 cence. The victim must file his bill promptly on discovery of the 
 fraud. 70 It would be an obvious hardship to have to uphold the 
 
 Rheinestein v. Bixby, 92 N. C. 307. 66. Baker v. Mills, 81 Ga. 342, » 
 
 In these cases, the application was S. E. 1100. 
 
 for an injunction and receiver, but 67. McGranighan v. McGrani- 
 
 here the trustee is simply restrained ghan, 19 Pa. Ct. Co. Ct. R. 75. 
 
 from disposing of the fund, within 68. Larue v. Friedman, 49 Cal. 
 
 the jurisdiction of the court, pending 278. See Pierce v. Jones, 23 Ga. 374. 
 
 the action. This case comes within 69. Pierce v. Jones, 23 Ga. 374. 
 
 the rule applied in Harrison v. Bray, 70. East Newark Co. v. Gilbert, 12 
 
 92 N. C. 488; Ellett v. Newman, 92 N. J. Eq. 78. Sufficient diligence 
 
 N. C. 519; Whittaker v. Hill, 96 N. was shown in Link v. Link, 48 Mo. 
 
 C. 2, 1 S. E. 639 ; Lumber Co. v. Wal- App. 345, the bill being filed 
 
 lace, 93 N. C. 22." promptly on discovery, though the 
 
 638
 
 Injunctions Against Fraud. 
 
 §425 
 
 good faith of transactions long after the participants therein were 
 dead, and the documents connected therewith were destroyed or 
 lost. 71 
 
 § 425. Dissolution on answer where bill charges fraud. — 
 Where the gravamen of a petition for an injunction is fraud, the 
 
 fraud had been practiced long before. 
 71. It is said in Hammond v. Hop- 
 kins, 143 U. S. 244, 250, 12 S. Ct. 
 418, 36 L. Ed. 134: " No rule of law 
 is better settled than that a court of 
 equity will not aid a party whose ap- 
 plication is destitute of conscience, 
 good faith, and reasonable diligence, 
 but will discourage stale demands 
 for the peace of society, by refusing 
 to interfere where there have been 
 gross laches in prosecuting rights, or 
 where long acquiescence in the as- 
 sertion of adverse rights has oc- 
 curred. The rule is peculiarly ap- 
 plicable where the difficulty of doing 
 entire justice arises through the 
 death of the principal participants 
 in the transactions complained of, or 
 of the witness or witnesses, or by 
 reason of the original transactions 
 having become so obscure by time as 
 to render the ascertainment of the 
 exact facts impossible. Each case 
 must necessarily be governed by its 
 own circumstances, since, though the 
 lapse of a few years may be sufficient 
 to defeat the action in one case, a 
 longer period may be held requisite 
 in another, dependent upon the situa- 
 tion of the parties, the extent of 
 their knowledge or means of informa- 
 tion, great changes in values, the 
 want of probable grounds for the im- 
 putation of intentional fraud, the de- 
 struction of specific testimony, the 
 absence of any reasonable impediment 
 or hindrance to the assertion of the 
 alleged rights, and the like. Marsh 
 
 v. Whitmore, 21 Wall. 178, 22 L. Ed. 
 482; Lansdale v. Smith, 106 U. S. 
 391, 1 Sup. Ct. Rep. 350, 27 L. Ed. 
 219; Norris v. Haggin, 136 U. S. 386, 
 
 10 Sup. Ct. Rep. 942, 34 L. Ed. 424; 
 Mackall v. Casilear, 137 U. S. 556, 
 
 11 Sup. Ct. Rep. 178, 34 L. Ed. 
 776; Hanner v. Moulton, 138 U. S. 
 486, 11 Sup. Ct. Rep. 408, 34 L. 
 Ed. 1032. We think that the cir- 
 cumstances disclosed here require the 
 application of this salutary rule to 
 the attack upon the settlement. That 
 settlement was made between Sweet- 
 ser and the active executor, Miner, 
 both of whom are dead. The papers 
 were in the handwriting of the book- 
 keeper Lytle, and he is dead. The 
 deeds of December 8th and 11th were 
 witnessed by Lytle and Kentner, and 
 Kentner is dead. The release was 
 witnessed by Lytle and George W. 
 Ewing, one of the heirs, and Ewing 
 is dead. The books and papers which 
 might have shed light upon the 
 transaction were destroyed by Miner 
 with the knowledge and consent of 
 the then trustee, Holladay, before the 
 bill was filed, though not until 16 or 
 19 years after the settlement. There 
 was no adequate evidence of actual 
 fraud, the instruments were duly re- 
 corded, the means of information 
 were originally abundant, no conceal- 
 ment or suppression was shown, and 
 the record demonstrates the utter 
 impracticability of restating an ac- 
 count between the partners. Evi- 
 dence was given on both sides as to 
 
 639
 
 425 
 
 Injunctions Against Fraud. 
 
 preliminary injunction will not be dissolved upon the answer, 
 as of course, even though it fully denies the allegations of the 
 petition. 72 Bat the charge of fraud may be so successfully met by 
 the answer and opposing affidavits, that the injunction should not 
 be continued. It is a matter of sound judicial discretion. 73 
 
 the value of the property in 1866, and 
 thereafter, but it fails to convince us 
 that at the ime of the settlement the 
 value of the half conveyed to Sweet- 
 ser was so great as to raise any seri- 
 ous suspicion of fraud in that con- 
 nection; and it is apparent there- 
 from that 17 years after, when the 
 purchase was made by the company, 
 the value had largely appreciated, 
 while the enterprise upon which the 
 company then embarked imparted an 
 immense speculative increase." 
 
 72. Walker v. Stone, 70 Iowa, 103, 
 30 N. W. 39, per Adams, C. J. : " In 
 Stewart v. Johnston, 44 Iowa, 435, it 
 was said: 'The general rule doubt- 
 less is, that where all the material 
 allegations of the injunction peli'iion 
 are fully and satisfactorily denied in 
 the answer, upon the defendant's per- 
 sonal knowledge, the preliminary in- 
 junction, if one has been allowed, will 
 
 be denied on motion. But to this rule 
 there are some exceptions, ana one 
 of them is where the gravamen of the 
 petition is fraud.' Citing Sinnett v. 
 Moles, 38 Iowa, 25 ; Dent v. Summer- 
 lin. 12 Ga. 5. 
 
 See § 332 herein. 
 
 73. In an action by a tax-payer 
 to enjoin the erection of a bridge by 
 a town, which it had been authorized 
 to build by the county board, plain- 
 tiff charged that the whole proceed- 
 ing for building the bridge was a 
 conspiracy to divert the public money 
 to the private purpose of draining 
 certain swamp lands, but the charge 
 was denied by the answer, and con- 
 troverting affidavits filed by defend- 
 ants. Held, insufficient to uphold a 
 preliminary injunction. Barker v. 
 Town of Oswegatchie, 16 N. Y. Sapp. 
 727. 
 
 640
 
 Relating to Conteacts. 
 
 CHAPTER XIII. 
 
 Relating to Contracts. 
 
 SECTION 426. Contracts against public policy. ,„_... 
 
 427. Ultra vires contract not to be enforced by injunction. 
 
 428. Injury to be threatened. 
 
 429. Inadequacy of legal remedy to be shown. 
 
 430. Same subject. 
 
 430a. Effect of provision for liquidated damages. 
 431 Complainant must have performed— Clean hands. 
 
 432. Determining right to enjoin contract after its expiration. 
 
 433. Conditional and incomplete contracts. 
 
 434. Same subject— Railroad contracts. 
 
 435. Unfair and involved contracts. 
 
 436. Contracts conferring exclusive rights. 
 
 437. Same subject. _ _ 
 437a. Same subject— Gas contracts with municipality. 
 437b. Gas contracts— Generally— Electricity. 
 
 438. Coal mine contracts. 
 
 439. Grants of easements. 
 439a. Contract to supply water. 
 
 440. Enjoining assignee of contract— Tenant. 
 440a. Against one not party to a contract. 
 
 441. Taxpayers' actions to restrain or enforce contracts. 
 
 442. Same subject. 
 
 443. Injunctions in aid of specific performance. 
 
 444. Same subject— When injunction lies. 
 
 445. Same subject— When contract uncertain. 
 
 446. Exceptions to general rule— Railroad contracts. 
 
 447. Specific performance of real contracts— Discretion. 
 
 448. When mutuality is wanting. 
 
 449. Contracts affecting the public. 
 
 450. Enforcing parol agreement to devise. 
 
 451. Enforcing implied contracts by injunction-Trade secrets. 
 
 452. Enforcing contracts for personal service. 
 
 452a. Enforcing contracts for personal service— Actors. 
 
 453. Same subject— Baseball players. 
 
 454. Same subject — Acrobats. 
 
 455. Same subject— Insurance agents. 
 
 456. Same subject— Author and dramatist. 
 456a. Partners. 
 
 457. Enforcing negative covenants— Implication of. 
 
 458. Enforcing trusts by injunctions. 
 
 459. Usurious contracts. 
 
 460. Gaming contracts. 
 
 641 
 41
 
 426 
 
 Relating to Contracts. 
 
 Section 426. Contracts against public policy. — The general 
 rule is that in the absence of a statutory prohibition the law will 
 not readily pronounce a contract invalid, on the ground of its being 
 opposed to public policy ; but if it is of such a nature that it can- 
 not be carried into execution without reaching beyond the parties, 
 and resulting in injury to the community, it will be declared void 
 and will not be enforced from a due regard to the public welfare. 1 
 Thus where a statute provided for the publication of the laws in 
 the newspaper of a county having the largest circulation, and 
 authorized the governor and certain other public officers to select 
 the newspaper, an agreement between the owners of two county 
 newspapers in evasion of the statute was held to be void as against 
 public policy, and therefore a court of equity would not aid in its 
 enforcement. Neither a court of equity or law will enforce con- 
 tracts which contravene a statute or are opposed to public policy 
 and morality. 2 No cause of action can arise out of an illegal con- 
 
 1. Hinnen v. Newman, 35 Kan. 
 709, 12 Poe, 144; Fuller v. Dame, 18 
 Pick. (Mass.) 472; Frost v. Belmont 
 6 Allen (Mass.), 152, 162; Gulick v. 
 Ward, 10 N. J. Law, 87; Egerton v. 
 Brownlow, 4 H. L. Cas. 235 ; Reg- 
 istering Co. v. Sampson. L. R. 19 
 Eq. 462. 
 
 Execution of a contract to 
 care for a person afflicted with 
 leprosy may be enjoined where it 
 appears that a fulfillment of the con- 
 tract would tend to spread the dis- 
 ease. Baltimore v. Fairfield Imp. 
 Co., 87 Md. 352, 39 Atl. 1081, 40 L. 
 R. A. 494. 
 
 2. Brooks v. Cooper, 50 N. J. Eq. 
 761. 26 Atl. 978, per Lippineott, J.: 
 " All contracts prejudicial to the in- 
 terest of the public, such as contracts 
 lending to prevent competition, when- 
 ever the statute or any known rule of 
 law requires it. are void. 1 Add. 
 Cont. 263. The statute here was in- 
 tended to encourage rivalry as to th e 
 matter of the circulation of the news- 
 
 paper intended for selection, and the 
 policy of the statute was the greater 
 benefit to the public in the selection, 
 when it declared that the matter of 
 extent of circulation should be re- 
 garded; and any contract tending to 
 interfere with the beneficial opera- 
 tion of the statute was unlawful, as 
 against the policy of the law. Gulick 
 v. Ward ! 10 N. J. Law, 87; Jones v. 
 Randall, Cowp. 39; Blachford v. 
 Preston, 8 T. R. 95; Mitchell v. 
 Smith, 1 Bin. 120. Chief Justice 
 Kirkpatrick, in Sterling v. Sinnick- 
 son, 5 N. J. Law, 756, declared that 
 if the consideration be against public 
 policy it is insufficient to support the 
 contract; and Justice Russell, in the 
 same case, said: 'It is a general 
 principle that all obligations for any 
 matter operating against the public 
 policy and the interests of the nation 
 are void.' There are many illusra- 
 tions of the application of this prin- 
 ciple, closely allied to the present 
 case. An agreement to withdraw an 
 
 642
 
 Relating to Contbacts. 
 
 §426 
 
 tract and the courts will leave the parties where it finds them under 
 the rule expressed in the maxim, ex turpi causa non oritur 
 
 election petition in consideration of 
 money was void. Coppock v. Bower, 
 4 Mees. & W. 361. A note executed 
 in consideration of the payee agree- 
 ing to resign a public office in favor 
 of the maker, and using his influence 
 to appoint the latter's successor, is 
 void. Meacham v. Dow, 32 Vt. 721. 
 So, to the same effect, upon a con- 
 tract of a like nature and quality, 
 will be found in the case of Parsons 
 v. Thompson, 1 H. Bl. 322. A note 
 given in consideration or forbearance 
 of bidding at sheriff's sale of real es- 
 tate was held to be without consid- 
 eration, on the ground that it was 
 the policy of the law to encourage 
 bidding at sales on execution. Jones 
 v. Caswell, 3 Johns. Cas. 29. The 
 policy of the law encourages free 
 competition, and contracts in avoid- 
 ance of that policy are void. Id. 
 Doolin v. Ward, 6 Johns. 194 
 Thompson v. Davies, 13 Johns. 112 
 Bank v. Sprague, 20 N. J. Eq. 160 
 Morris v. Woodward, 25 N. J. Eq. 
 32. So in relation to contracts to 
 control public officials or electors, 
 with an illegal tendency. Thomas v. 
 Edwards, 2 Mees. & W. 218. Agree- 
 ments to obtain pardons. Hatzfield 
 v. Gulden, 7 Watts, 153; Kribben v. 
 Haycraft, 26 Mo. 396; State v. John- 
 son, 52 Ind. 197; Haines v. Lewis, 54 
 Iowa, 301, 6 N. W. 495. Contracts 
 for services known as ' lobby services.' 
 Trist v. Child.. 21 Wall. 441, 22 L. 
 Ed. 623. Contracts for moneys lent 
 to another to aid him in securing 
 an office. Meguire v. Corwine. 101 
 U. S. 108, 25 L. Ed. 899. Con- 
 tracts for service of a canvasser at a 
 primary election. Keating v. Hyde, 
 23 Mo. App. 555. A promise of re- 
 
 ward for influence to secure an office. 
 Nichols v. Mudgett, 32 Vt. 546. A 
 promise to pay the director of a cor- 
 poration to resign. Guernsey v. Cook, 
 120 Mass. 501; Keel v. Drake, 28 
 Kan. 265; Forbes v. McDonald, 54 
 Cal. 98. Assignment of salary not 
 due. Bliss v. Lawrence, 58 N. Y. 
 442. The unearned half-pay of a 
 retired army officer is not assign- 
 able. Schwenk v. Wyckoff, 46 N. J. 
 Eq. 560, 20 Atl. 259. An agreement 
 to renounce an executorship. Elli- 
 cott v. Chamberlin, 38 N. J. Eq. 604. 
 An agreement on the part of a 
 caveator to withdraw his opposition 
 to the laying out of a public road. 
 Smith v. Applegate, 23 N. J. Law, 
 352. These are instances of contracts 
 in contravention of sound public pol- 
 icy and therefore void. Any con- 
 tracts which have for their object the 
 influencing the action of public offi- 
 cials are void as against public pol- 
 icy. Ayer v. Hutchins, 4 Mass. 370; 
 1 Add. Cont., § 253, p. 388, note 1. 
 An agreement whose object or ten- 
 dency is to influence any officer of the 
 State in the performance of a legal 
 duty, partially or completely, is void. 
 Lucas v. Allen, 80 Ky. 681; O'Hara 
 v. Carpenter, 23 Mich. 410; Caton 
 v. Stewart, 76 N. C. 357. It is dis- 
 tinctly held that an agreement for 
 compensation for procuring a con- % 
 tract from the government of our 5. 
 own or that of another country is 
 against public policy, and void. Tool 
 Co. v. Norris, 2 Wall. 45. 17 L. 
 Ed. 86S; Oscanyan v. Arms Co., 
 103 U. S. 261. 26 L. Ed. 539. An 
 agreement between two candidates 
 for the same office, that one shall 
 withdraw, and the other, if successful 
 
 643
 
 §426 
 
 Relating to Contracts. 
 
 actio. 3 A contract which is void "because it violates Sunday laws will 
 not be enforced by injunction. 4 Thus where an agreement to sell 
 land was made on Sunday and part of the purchase money was paid 
 on that day the transaction was held to be void and a bill to compel 
 the vendor to give a conveyance was dismissed. 5 Where a contract 
 is void at law for want of power to make it, a court of equity has 
 no jurisdiction to enforce it, or, in the absence of fraud, accident 
 or mistake, to so modify it as to make it legal and then enforce it. 
 And where a contract or transaction is declared void because not in 
 compliance with express statutory or constitutional provisions, a 
 court of equity cannot interpose to give it, or any part of it, 
 validity. 6 And the almost universal rule is that whenever the 
 rights or situation of parties are defined and established by law, 
 equity has no power to change that situation or unsettle those 
 
 in the attempt to obtain the office, 
 shall divide the fees with him, is 
 void as against sound public policy. 
 Gray v. Hook, 4 N. Y. 449; Hunter 
 v. Nolf, 71 Pa. St. 282; Osborne v. 
 Williams, 18 Ves. 379; Ashburner v. 
 Parrish, 81 Pa. St. 52; Gordon v. 
 Dalby, 30 Iowa, 223. All agreements, 
 for financial consideration, to con- 
 trol or influence the business opera- 
 tions of the government, or the ap- 
 pointment of public officers, are void 
 as against public policy, without ref- 
 erence to the question whether im- 
 proper measures are contemplated or 
 used in their execution. The law 
 looks to the general tendency of such 
 agreements, and it closes the door to 
 temptations, by refusing them recog- 
 nition in the courts. Tool Co. v. 
 Norris, 2 Wall. 45, 17 L. 
 Ed. 868. Seee collection of de- 
 cisions in note by Hare & Wallace, 
 1 Smith, Lead Cas., pt, 1, p. 676, 
 etc., down to the year 1866. and a 
 further collection of leading cases in 
 notes to volume 3, p. 875, etc., Amer. 
 & Eng. Enc. Law." As to cases in 
 
 which contracts are contrary to pub- 
 lic policy because in contravention 
 of the provisions of some public 
 statute, see Jackson v. Davidson, 4 
 Barn. & Aid. 695; Rogers v. King- 
 ston, 10 Moore, 102, 2 Bing. 441; 
 Murray v. Reeves, 8 Barn. & C. 425; 
 Hall v. Dyson. 16 Jur. 270. 21 L. J. 
 Q. B. (N. S.) 224; Hills v. Mitson, 8 
 Exch. 758; Cannon v. Cannon, 26 N. 
 J. Eq. 316. And a contract may be 
 illegal although not in contravention 
 of the specific directions of a statute, 
 if it be opposed to the general policy 
 and intent thereof. Staines v. Wain- 
 wright, 6 Bing. N. C. 174; Philpott 
 v. St. George's Hospital, 6 H. L. Cas. 
 338, 347; DeBegnis v. Armistead, 10 
 Bing. 110. 
 
 3. Vulcan Powder Co. v. Hercules 
 Powder Co. 96 Cal. 510, 31 Pac. 581. 
 
 4. Nibert v. Baghurst, 47 N. J. Eq. 
 201, 25 Atl. 474. 
 
 5. Nibert v. Baghurst, 47 N. J. 
 Eq. 201, 25 Atl. 474. And see Eyno 
 v. Darby, 20 N. J. Eq. 231. 
 
 6. Hedges v. Dixon County, 150 U. 
 S. 182. 37 L. Ed. 1044, 14 Sup. Ct. 71. 
 
 644
 
 Eelating to Contracts. §§ 427, 428 
 
 rights, and in all such cases the maxim equitas sequitur legem is 
 strictly applicable. 7 
 
 § 427. Ultra vires contracts not to be enforced by injunction. 
 
 — Where a contract is ultra vires a court of equity will not interfere 
 by injunction so as to enforce its execution. So where two cotton 
 compress companies made an agreement to consolidate, which was 
 beyond their corporate powers, and pending the procurement of a 
 charter for the consolidated company both plants were put into 
 the hands of a governing committee to manage, and subsequently 
 the stockholders of one company voted against consolidation, and 
 it was proceeding to act in disregard of the agreement, when the 
 other company obtained an injunction against it to restrain any 
 interference with the action of the governing committee, it was 
 held on appeal that the lower court erred in granting and per- 
 petuating such injunction, as it in effect specifically executed an 
 ultra vires contract. 8 
 
 § 428. Injury to be threatened. — In accordance with the gen- 
 eral rule for the administration of relief in equity before con- 
 
 7. Magniac v. Thomson, 15 How. court the plaintiff may recover to the 
 299, 14 L. Ed. 696. And see Aetna extent of the henefit received by the 
 Ins. Co. v. Middleport, 124 U. S. defendant from the execution of the 
 534, 8 S. Ct. 625, 31 L. Ed. 537; agreement by the plaintiff. Pennsyl- 
 Litchfield v. Ballou, 114 U. S. 190,. 5 vania R. Co. v. St. Louis, A. & T. R. 
 S. Ct. 820, 29 L. Ed. 132. Co., 118 U. S. 290, 6 Sup. Ct. 
 
 8. Greenville Compress Co. v. 1094, 30 L. Ed. 83; Davis v. Rail- 
 Planter's Compress Co. (Miss.), 13 road, 131 Mass. 258; Pearce v. Rail- 
 So. 879, per Cooper, J.: "The road, 21 How. (U. S.) 441, 16 L. Ed. 
 agreement between the directors of 184; Railroad Co. v. Riche, L. R. 7 H. 
 the respective companies was clearly L. 653, L. R. 9 Exch. 224; In re 
 beyond the corporate powers of either Cork Co., 4 Ch. App. 748. The chan- 
 company to make, and it had not been cellor, by the very extraordinary 
 fully executed when the appellant course pursued in this case, has not 
 withdrew from it. . . . The de- only specifically executed the ultra 
 cided weight of authority in England vires agreement, but has done it by 
 and America is that no action lies a peremptory injunction by taking 
 on the invalid contract; that no de- the property of the appellant from 
 cree can be made by a court of equity its possession, and turning it over 
 for its specific performance, nor a to persons not parties to the suit, and 
 recovery had at law for its breach; who were not appointed receivers of 
 but that by proceeding in the proper the court." 
 
 645
 
 §'429 
 
 Relating to Contracts. 
 
 sidered, 9 an injunction will not be granted to prevent the breach 
 of a contract unless an actual and not merely a conjectural injury 
 to the plaintiff is threatened, and will not be granted to prevent a 
 merely theoretical violation of his rights. 10 So a preliminary in- 
 junction will not be granted to compel the lessees of an opera 
 house to allow the complainants to use the house in accordance with 
 a contract therefor, where such injunction would compel the lessees 
 to break a similar contract made by them with an innocent third 
 party, and the complainants cannot use the house with profit to 
 themselves. 11 The issuance, however, of a preliminary injunction 
 will not necessarily be prevented by the fact that the amount of 
 damages which may result from a breach of a contract is uncer- 
 tain. 12 And if a bill for an injunction pendente lite shows the 
 existence of a contract right and a probability that such right will 
 be defeated it is sufficient. 10 
 
 § 429. Inadequacy of legal remedy to be shown. — An injunc- 
 tion to prevent the breach of a contract is a negative specific 
 
 9. § 17 ante. 
 
 10. The plaintiff was a member of 
 a "musical mutual protective union," 
 one of whose by-laws provided that 
 every member must refuse to per- 
 form in any orchestra in which any 
 person is engaged who is not a mem- 
 ber in good standing, except organ- 
 ists and directors of musical soci- 
 eties and members of traveling com- 
 panies. Plaintiff was a director of a 
 musical society, and manager of a 
 traveling company. He and certain 
 members of his company, members of 
 said union, were notified by the di- 
 rectors of the union to appear and 
 show cause why they should not be 
 fined for a violation of said by-law. 
 Held, that the injury threatened was 
 conjectural only, and not a ground 
 for an injunction against said direct- 
 ors. Thomas v. Musical Mut. Pro- 
 tective Union, 24 N. E. 24, 121 N. 
 Y. 45. 
 
 11. Foster v. Ballenberg, 43 Fed. 
 821. Complainant railroad company, 
 having no connection by rail with 
 defendant's stock-yards, secured the 
 services of a connecting road in 
 transferring stock shipped over its 
 road. The price of such service be- 
 ing raised, complainant began trans- 
 ferring by means of floats, but de- 
 iendants refused to receive stock so 
 transferred, or permit the floats to 
 land at their wharves. On applica- 
 tion for a preliminary mandatory in- 
 junction to defendants to receive its 
 freight, held that the facts showed no 
 such pressing necessity as to require 
 such writ. Delaware, L. & W. R. Co. 
 v. Central Stock Yard & Transit Co., 
 45 N. J. Eq. 50, 12 Atl. 374. And 
 see Delaware, etc., R. Co. v. Central 
 Stock Yard Co., 43 N. J. Eq. 71, 605. 
 
 12. Williams v. Montgomery, 148 
 N. Y. 519, 43 N. E. 57. 
 
 13. Sanitary Reduction Works v. 
 
 646
 
 Relating to Con tracts. 
 
 §429 
 
 enforcement of it and the test of the jurisdiction of equity to grant 
 such an injunction is the inadequacy of the legal remedy of dam- 
 ages, 14 for where there is an adequate remedy at law for the breach 
 of a contract a court of equity will not, as a general rule, lend its 
 aid to restrain a breach. 10 So an agreement by a turnpike company 
 to give the owner of a ranch the right to use the road free of toll 
 
 California Reduction Co., 94 Fed. 
 693. 
 
 14. Dills v. Doebler, 02 Conn. 366, 
 20 Atl. 398, per Andrews, C. 
 J. : " The universal test of the 
 jurisdiction of a court of equity 
 to restrain the breach of a con- 
 tract is the inadequacy of the legal 
 remedy of damages. An injunction 
 to prevent the breach of a contract is 
 a negative specific enforcement of 
 that contract; and tlie jurisdiction of 
 equity to grant such an injunction is 
 substantially coincident with its 
 jurisdiction to compel a specific per- 
 formance by an affirmative decree. 
 In either case a court of equity can- 
 not exercise jurisdiction unless the 
 injury apprehended from a violation 
 of the contract is of such a nature as 
 not to be susceptible of adequate dam- 
 ages at law. Pom. Eq. Jur., § 1341; 
 Morris Canal & Banking Co. v. So- 
 ciety for Manufactures, 5 X. J. Eq. 
 203; Akrill v. Selden, 1 Barb. 316." 
 
 See, also, Harlow v. Oiegonian 
 Pub. Co. (Oreg. 1904), 78 Pac. 737. 
 
 Where, in reliance upon a 
 contract to supply patented 
 machinery, a party purchased ma- 
 terial and entered into contracts to 
 supply the product of such machin- 
 ery to others, a breach of such con- 
 tract may be enjoined though it is 
 not capable of being specifically en- 
 forced where it appears that the 
 damages for such breach cannot be 
 computed. American Electrical 
 
 Works v. Varley Duplex M. Co., 26 
 R. I. 295, 58 Atl. 977. 
 
 15. United States. — General Elec. 
 Co. v. Westinghouse Elec. & M. Co., 
 144 Fed. 458; James T. Hair Co. v. 
 Huckins, 56 Fed. 366, 5 C. C. A. 522, 
 12 U. S. A pp. 359. See Payne v. 
 United States P. C. Co., 90 Fed. 543; 
 Burdon Cent. S. R. Co. v. Leverich, 
 
 37 Fed. 67. 
 
 Alabama. — Winter v. City Council, 
 93 Ala. 539, 9 So. 366; Powell v. 
 Central Plank Road Co., 24 Ala. 441. 
 
 District of Columbia. — See Purcell 
 Envelope Co. v. Smith, 26 Wash. L. 
 Rep. 515. 
 
 Illinois. — Builders' Painting & D. 
 Co. v. Advisory Board, 116 111. App. 
 264. 
 
 Louisiana. — Seiler v. Fairex, 23 La. 
 Ann. 397. 
 
 Neio York. — Fox v. Fitzpatrick, 
 190 N. Y. 359, 82 N. E. 1103; Close 
 v. Flesher, 8 Misc. R. 299, 28 N. Y. 
 Supp. 737. See Banker & Campbell 
 Co. v. Stimson, 61 Hun, 626, 16 N. 
 Y. Supp. 60; Niagara Falls I. B. Co. 
 v. Great Western Ry. Co., 39 Barb. 
 212. 
 
 Pennsylvania. — School District v. 
 Ohio Gas Co., 154 Pa. St. 539, 25 
 Atl. 868; Gallagher v. Fayette R. Co., 
 
 38 Pa. St. 102. 
 
 Wisconsin. — Converse v. Ketchum, 
 18 Wis. 202. 
 
 Compare Christian Feigenspan v. 
 Nizotek (N. J. 1907), 65 Atl. 703, 
 wherein it is said that the policy of 
 
 647
 
 § 429 Kelatinq to Contracts. 
 
 for all the purposes of the ranch, in consideration of his giving 
 the company a right of way over the ranch, does not give the ranch 
 owner an easement in the road, and he is not entitled to an injunc- 
 tion to restrain interference by the turnpike company with his use 
 of the road, when such interference consists merely in demanding 
 payment of the regular tolls, since for such wrong he has a suffi- 
 cient remedy by an action for damages. 16 And where plaintiff 
 engaged defendants to construct a macadam road on a public 
 county road, reserving the right to cancel the contract if, for any 
 reason, the work done under it did not satisfy him, it was held 
 that plaintiff, having notified defendants to discontinue work 
 because of non-compliance with the contract, could not have an 
 injunction against the further prosecution of the work by defend- 
 ants, there being an adequate remedy at law. 17 To maintain an 
 injunction to restrain the collection of the purchase money for 
 land, it must at least be shown that the grantor is insolvent. 18 And 
 in this connection it is decided that the disposal of mining stock 
 by one to whom the complainant has advanced money to purchase 
 the mines may be enjoined where there was an agreement that the 
 one advancing the money should receive a certain proportion of the 
 stock and all of such stock has been issued to the defendant who is 
 
 the law should be to prevent a man adequate remedy at law. Cupples 
 
 from breaking his contracts rather Envelope Co. v. Lackner, 99 App. 
 
 than to leave the injured party to Div. (N. Y.) 231, 90 N. Y. Supp.954. 
 his damages at law. The terms of a contract 
 
 The court will not exercise its shonld be clearly and definitely 
 power to restrain an apprehended established by one who seeks to en- 
 injury resulting from a breach of join its breach. Sanders v. Brown 
 contract unless the petitioner is (Ala. 1905), 39 So. 732. 
 without adequate remedy at law, and 16. Kellett v. Ida Clayton Road 
 the contract itself is free from doubt Co., 33 Pac. 885. 
 and not uncertain or vague in its 17. Shepherd v. Groff, 34 W. Va. 
 terms or provisions. Fowler Utili- 123, 11 S. E. 997. See, also, Knott 
 ties Co. v. Gray (Ind. 1907), 79 N. v. Shepherdstown Mfg.' Co., 30 W. 
 E. 897. Per Montgomery, J., citing Va. 790, 796, 5 S. E. 266; Surber 
 Loy v. Madison Gas Co., 156 Ind. v. McClintic, 10 W. Va. 236; More- 
 332, 58 N. E. 844. head v. DeFord, 6 W. Va. 316. 
 
 There shonld be an averment 18. Wimberg v. Schwegeman, 97 
 
 of facts showing that there is no Ind. 528. 
 
 648
 
 Relating to Contracts. § 430 
 
 of doubtful responsibility and who threatens to dispose of the 
 stock. 19 
 
 § 430. Same subject. — A court of equity has jurisdiction of 
 a bill to enforce by injunction a written contract whereby defend- 
 ants have covenanted not to manufacture and sell any machines 
 infringing certain patents claimed by complainants, and under 
 which they are making and selling machines, since the continuance 
 of such violation would tend to diminish complainant's profits in 
 the business, for which mere damages, recoverable at law, would 
 not be an adequate remedy ; and in such case the fact that one of 
 the parties to the contract is a special or limited partner in a firm 
 which is engaged in using the infringing machines is no objection 
 to making him a defendant, or enjoining him from continuing to 
 violate the contract in connection with the firm although his part- 
 ners were not parties to the contract, and cannot therefore be made 
 parties to the suit, and although they will be embarrassed by an 
 injunction against him. 20 And where goods are sold to a person 
 to sell at not less than a certain price and he transfers them to 
 another under a fraudulent agreement with the latter to enable 
 him to sell them at a less price and thus avoid the provisions of the 
 contract, it is decided that the latter may be enjoined from so sell- 
 ing them. 21 But an injunction will not lie to restrain the breach 
 of a contract whereby defendant agreed that for the term of five 
 years he would use plaintiff's hotel registers in his business, and 
 no others, for plaintiff has an adequate remedy at law. 22 
 
 19. Rau v. Seidenberg ; 53 Misc. sumed not to fall below a certain 
 R. (N. Y.) 386, 104 N. Y. Supp. 798. amount. In an action by the com- 
 
 20. American Box Machine Co. v. pany to restrain S. from using elec- 
 Crosman, 57 Fed. 1021. trie lights, the petition alleged that 
 
 21. Garst v. Charles, 187 Mass. the introduction of such lights upon 
 144, 72 N. E. 839. said premises largely reduced the 
 
 22. Hair Company v. Huckins, 56 amount of gas used below the amount 
 Fed. 366. S contracted with a gas- stipulated, whereby " the company 
 light company, in consideration of a will lose tlie benefit of said contract, 
 reduced price for gas, not to use elec- and the gain and profit it is entitled 
 trie or other material or power for to therefrom, and will suffer irrepar- 
 general illuminating purposes on his able damage." Held, that the peti- 
 preniises, the quantity of gas con- tion did not show that the company 
 
 649
 
 430a 
 
 Relating to Contracts. 
 
 § 430a. Effect of provision for liquidated damages. — Tt is 
 clear from principles of equity already fully considered in the first 
 chapter that the breach of a contract in restraint of trade will not 
 be enjoined where it will cause but trifling injury to plaintiff, 83 
 and especially not in a case where the damages for a breach are 
 liquidated by the contract and may be paid as an alternative. Thus 
 where a person bound himself not to practice dentistry within a 
 designated town and for a designated time, but stipulated that he 
 might do so on the payment of «$1,000, injunction would not lie 
 to restrain him from a breach thereof, the remedy being an action 
 at law to recover the $1,000; and the fact that such person was 
 insolvent could not ailter the respective rights of the parties to 
 such contract, nor the remedy to be pursued. 24 And in determining 
 
 might not have full, adequate relief in 
 damages by a suit at law, and that 
 plain till' was therefore not entitled 
 to an injunction. Steinau v. Cincin- 
 nati Gas-Light & Coke Co., 48 Ohio 
 St. 324, 27 N. E. 545, per Spear, J.: 
 " What would stand in the way of 
 adequate damages being awarded by 
 a jury? The amount of gas agreed 
 to be used each month, the duration 
 of time, and the price to be paid per 
 thousand, were all shown by the 
 contract. If added to these facts the 
 jury should be put in possession of 
 the amount of gain and profit the 
 company were making per thousand, 
 what would prevent a clear ascertain- 
 ment of damages upon that basis? 
 Fothcrgill v. Rowland, L. R. 17 Eq. 
 132; Chicago, etc., R. Co. v. New 
 York, etc., R. Co., 24 Fed. 516." 
 
 23. Defendant, in consideration of 
 his employment by complainant as 
 collector in the installment clothing 
 business, agreed not to work for any 
 other person engaged in such busi- 
 ness for a year after his employment 
 by complainant should cease. He 
 only worked for about five weeks. 
 
 when he left complainant's employ, 
 and took a similar position with a 
 rival house. No special damage was 
 shown to have been sull'ered by com- 
 plainant. Held that, if complainant 
 would suller any damage for the 
 breach of contract, it would not be 
 irreparable, and would not warrant 
 an injunction. Sternberg v. O Biien, 
 48 N. J. Eq. 370, 22 Atl. 348. 
 
 As to contracts in restraint 
 of trade, see chap. XIV herein. 
 
 24. Dills v. Doebler, 02 Conn. 306, 
 26 Atl. 398, per Andrews, C. J.: 
 " When the parties to an agreement 
 have put into it a provision for the 
 payment, in case of a breach, of a 
 certain sum of money which is truly 
 liquidated damages, and not a pen- 
 alty — in other words, when the con- 
 tract stipulates for one of two 
 things in the alternative, or on the 
 one side the doing or the not doing 
 of certain acts, and on the other the 
 payment of a certain sum in money 
 in lieu thereof, equity will not in- 
 terfere but will leave the party to 
 his remedy of damages at law. Shiell 
 v. McNitt, 9 Paige, 101; Skinner v. 
 
 G50
 
 Relating to Contracts. a§ 430 
 
 the question whether in a given case the sum named is a penalty, 
 or liquidated damages, courts give but little weight to the mere 
 form of words but gather the intent from the general scope of the 
 contract ; and as it is difficult to estimate damages from the breach 
 of a contract, the subject matter of which is the carrying on of a 
 business, the current of authority is to treat the sum named as 
 liquidated damages, rather than as a penalty. 25 And where a 
 consideration of all the facts in the case leads to the conclusion that 
 it was not intended by either of the parties to a contract that a 
 provision therein for liquidated damages, in case of a breach by 
 one of the parties not to engage in business in a certain toAvn, 
 should be the only price of such breach, an injunction enjoining 
 the breach may be obtained. In such a case, however, it is decided 
 that having asked for an injunction the party waives his right to 
 enforce the provision in the contract as to liquidated damages. 26 
 So where a person, on entering the service of a banking company, 
 bound himself by a bonel to pay the bank one thousand pounds as 
 liquidated damages in case he should, at any time within two 
 years after leaving the bank, accept employment in any other bank 
 within two miles of the former bank, it was held that he could not 
 satisfy his obligation by paying the sum specified as damages, but 
 that there was an implied agreement that he would not enter the 
 service of a rival bank, which could be enforced by injunction. 27 
 And where it appears that defendant has violated his agreement to 
 sell his good will in the practice of medicine and not to practice in 
 a certain district for a number of years, and the breach of the 
 
 Dayton, 2 Johns. Ch. 52G, 535; Pom- 25. Ropes v. Upton, 125 Mass. 
 
 eroy, Eq. Jur., § 447." Where a 258. 
 
 bond was given providing liquidated 26. Heinz v. Roberts (Iowa, 1907), 
 
 damages in the sum of $15,000 for a 110 N. W. 1034. 
 
 breach of a covenant, the obligee is 27. National Provincial Bank v. 
 
 not confined to his remedy by way of Marshall, L. R. 40 Ch. D. 112. In 
 
 damage3 for the breach of contract, Gravely v. Barnard, L. It. 18 Eq. 
 
 but upon defendant's violation 518, a similar bond by a surgeon 
 
 thereof, is entitled to an injunction was held to import an agreement 
 
 restraining him from continuing to which could be enforced by injunc- 
 
 disregard his covenant. Diamond tion, and Jessel, M. R., on the ques- 
 
 Match Co. v. Roeber, 100 N. Y. 473, tion of a sufficient consideration of 
 
 13 N. E. 419. such bonds in restraint of trade, re- 
 
 651
 
 §431 
 
 Kelating to Conteacts. 
 
 contract has caused, and is likely to cause, plaintiffs damage, and 
 defendant is insolvent, plaintiffs are entitled to an injunction. 28 
 
 §431. Complainant must have performed; clean hands. A 
 
 party who seeks the aid of a court of equity to restrain an alleged 
 breach of a contract by the other party thereto must have performed 
 his part of the contract so far as is possible, or the court will not 
 interfere. 29 So where a covenant was not intended as a reservation 
 by the grantor but as a restriction to operate in favor of the 
 adjacent property generally, an injunction against the violation 
 of the covenant will not lie in favor of the grantor if he has him- 
 self violated it. 30 
 
 ferred to Hitchcock v. Coker, 6 Ad. 
 & El. 457; Davis v. Mason, 5 T. R. 
 118, 120. 
 
 28. Pickett v. Green, 120 Ind. 584, 
 22 N. E. 737. See, also, Healey v. 
 Dillon, 39 La. Ann. 503; Sutton v. 
 Head, 86 Ky. 156; Egan v. Russ, 39 
 La. Ann. 967. Such an agreement 
 would not be enforced if inequitable 
 as, for example, where one physician 
 had sold his practice worth $5. 000 a 
 year for only $150. Thayer v. 
 Younge, 86 Ind. 259. 
 
 29. United States. — Pullman's 
 Palace Car Co. v. Missouri, K. & T. 
 R. Co., 55 Fed. 138. 
 
 Illinois. — Chicago Municipal Gas 
 L. Co. v. Town of Lake, 130 111. 42. 
 
 Kentucky. — Reynolds v. Vance, 4 
 Bibb (Ky.), 213. 
 
 Louisiana. — Healy v. Allen, 38 La. 
 Ann. 867. 
 
 New Jersey. — Young Lock Nut Co. 
 v. Brownley Mfg. Co., 34 Atl. 947. 
 
 The ordinary rule is that it is 
 only with regard to the plaintiff's 
 rights against his defendant that the 
 plaintiff must come into court with 
 clean hands. Beekman v. Marsters 
 (Mass. 1907), SO N. E. 817. 
 
 Where plaintiff, an electric 
 
 company, entered into a contract 
 with defendant, an electrical subway 
 company, by which plaintiff was to 
 use defendant's subways ; paying 
 therefor a certain sum as rent, and 
 after several years' use of the sub- 
 way without payment of rent, the 
 subway company demanded the rent, 
 and threatened to cut out and re- 
 move plaintiff's cables in default of 
 its payment, it was held, in an action 
 for an injunction to restrain such 
 proceedings, waiving the question 
 whether the court had or had not 
 jurisdiction to grant an injunction 
 under special laws relating to the 
 subject matter of the controversy, 
 that plaintiff could not ask the in- 
 tervenion of a court of equity until 
 it had paid whatever rent was due 
 before the commencement of its pro- 
 ceedings. Brush Elecric Illuminat- 
 ing Co. v. Consolidated Telegraph & 
 Electrical Subway Co., 15 N. Y. 
 Supp. 477. 
 
 30. A preliminary injunction will 
 not be awarded to a grantor, to re- 
 strain the grantee of a certain lot 
 and others from drilling an oil or 
 gas well thereon, in violation of a 
 covenant in the deed from the 
 
 652
 
 Kelating to Contracts. §§ 432, 433 
 
 § 432. Determining right to enjoin contract after itc expira- 
 tion. — A court of equity may in some cases determine the rights 
 of a part j to a contract to an injunction after the expiration of the 
 contract. So in an action for an injunction to restrain defendant 
 from carrying out a contract with a third party, in violation of a 
 previous contract with plaintiff, an arrangement was made by which 
 defendant, on giving an undertaking conditioned to pay a certain 
 sum as liquidated damages if it should be finally determined that 
 plaintiff was entitled to an injunction, was permitted to fulfill her 
 contract with such third party, and it was held that, the rights of 
 both parties having been expressly reserved, the court, even after 
 plaintiff's contract had expired, would determine plaintiff's orig- 
 inal right to relief by injunction. 31 But where the time for which 
 defendant covenanted against the erection of a building other than 
 a dwelling expires before the determination of a suit to enjoin the 
 erection, the decree must not award ,an injunction but only damages 
 for the violation of the restriction while it continued in force. 32 
 
 § 433. Conditional and incomplete contracts. — It is obvious 
 that a party should not be compelled by injunction to perform a 
 contract, where he shows that he is unable to perform, and that by 
 the terms of the contract he might cancel it on notice of his in- 
 
 grantor, where he has himself vio- such purpose only the public ferry 
 lated the covenant by drilling wells operated by a private party under a 
 in the same addition in which the lot lease. The ferry proving inadequate, 
 lies, and the affidavits of the lot- complainant commenced running its 
 owners in the addition show that the own boats for purposes of transporta- 
 covenant was not intended as a reser- tion. Held, that equity would not pro- 
 vation of the oil and gas, but as a re- tect complainant from the consequence 
 striction to be placed in all the of its failure to comply with the con- 
 deeds of lots sold in the addition, to tract, by enjoining the operators of 
 secure them, as dwelling-places, from the ferry from interfering with the 
 the annoyances of oil and gas wells. operation of complainant's boats. 
 Appeal of Acheson, 130 Pa. St. Texas & P. Ry. Co. v. Baton Rouge, 
 633, 18 Atl. 873. See, also, 36 Fed. 845. 
 
 Hill v. Haberkorn, 6 N. Y. 31. Duff v. Russell, 133 N. Y. 
 
 Supp. 474. Complainant, having the 678, 31 N. E. 622, aff'g 16 N. Y. 
 
 right under its charter of transport- Supp. 958. 
 
 ing its passengers and freight across a 32. Langmaid v. Reed, 159 Mass. 
 
 river by means of its own boats, 409, 34 N. E. 593. 
 agreed, for a consideration, to use for 
 
 053
 
 §433 
 
 Relating to Contracts. 
 
 ability to perform it to the other party. 33 And a similar rule should 
 be applied where the contract was never completed and it was 
 understood at the time that the party acting on behalf of defend- 
 ant was his mere representative, who had no authority to complete 
 it. 34 But where one to whom a party to a contract for public work 
 has been given a power of attorney to receive the money due under 
 the contract, and the holder of such power of attorney completes 
 the work because of the insolvency of the contractor, the latter may 
 
 33. The contract, under which de- 
 fendant undertook to furnish natural 
 gas as fuel to plaintiff glass com- 
 pany, provided that, in view of the 
 uncertainty attending the flow of 
 natural gas, the contract should be 
 limited to the time for which defend- 
 ant, with due diligence, could fur- 
 nish the gas, and should be subject 
 to the rights of existing consumers to 
 the supply, domestic consumers to 
 have preference over all others; and 
 that defendant might cancel it on 
 due notice to plaintiff of its inability 
 to perform it. Plaintiff brought suit to 
 enjoin defendant from cutting off the 
 supply of gas contracted to be fur- 
 nished. Defendant answered that for 
 a year the supply of gas from its 
 wells had been falling off, and that, 
 after it had vainly endeavored to in- 
 crease it by boring new wells, it no- 
 tified plaintiff of its probable inabil- 
 ity to perform the contract. Held, 
 that a preliminary injunction was 
 properly refused. Thompson Glass 
 Co. v. Fayette Fuel Gas Co., 137 Pa. 
 St. 317. A natural gas company con- 
 tracted that its charges should not 
 exceed a schedule, provided that the 
 supply of natural gas should not fail 
 to such an extent as to render such 
 rates unreasonably low. Held, that a 
 bill in equity for an injunction to 
 restrain a violation of the contract, 
 which neglected to deny a failure of 
 
 supply of gas, should be dismissed on 
 demurrer. Morck v. Pennsylvania 
 Gas Co., 8 Pa. Co. Ct. Rep. 131. See, 
 also, Hill v. Probst, 120 lnd. 528, 22 
 N. E. 664. 
 
 34. Complainant had an under- 
 standing with a representative of an 
 exposition company that it was to 
 supply certain additional boilers, if 
 required for use in the exposition 
 building, the boilers to be used also 
 as exhibits. The representative told 
 complainant that the arrangement 
 would have to be submitted to the 
 company for approval, but this was 
 never done. The company was only 
 authorized to erect and equip the 
 building, the control of the exhibits 
 being vested in a commission ap- 
 pointed by Congress. Held, that com- 
 plainant was not entitled to an in- 
 junction to prevent the use of other 
 boilers in the building. Babcock & 
 Wilcox Co. v. World's Columbian Ex- 
 position Co.. 54 Fed. 214, per Gross- 
 cup, J.: "He and the complainants 
 probably thought there would be no 
 difficulty in receiving such approval, 
 but the negotiation certainly could 
 not have been regarded by them as 
 final while in this state of possible 
 uncertainty. As a matter of fact, 
 the proposed privilege was never sub- 
 mitted to the council, and complain- 
 ants were never advised that it had 
 received the approval of that body. 
 
 654
 
 Relating to Contracts. § 434 
 
 be enjoined from collecting such amount. 35 Where an agreement is 
 not to be deemed complete until certain parties have signed it, 
 those who have signed it cannot claim that it is merely inchoate 
 after they have shown by acting under it that they consider it com- 
 plete. 36 Where a contract, as set out in a petition for a preliminary 
 injunction for its violation, is not sufficient to justify its issuance, 
 one will not be granted under a second count in the complaint, 
 alleging a mistake in the contract, and asking for its reformation 
 where equities, alleged as ground for its reformation, are denied in 
 the answer, but plaintiff must await the reformation of the con- 
 tract before he can obtain affirmative relief based on the contract 
 as reformed. 37 
 
 § 434. Same subject ; railroad contracts. — A contract by a rail- 
 road company to maintain and keep open two existing passageways 
 for stock under its road through a certain farm is sufficiently cer- 
 tain to entitle the owner of the farm to an injunction against 
 violation, though the size, nature and location of the ways are not 
 stated in the contract ; as such an injunction in effect operates as a 
 decree for specific performance. 38 And a court of equity will by 
 
 It is equally clear that Sargent had 144 111. 628, 32 N. E. 291, per Shope, 
 
 no power to grant a privilege of that J. : " It is true as said by counsel 
 
 character. It fell partly, at least, that to entitle a party to specific 
 
 within the powers of the commission, performance which is in effect the re- 
 
 and there is nothing in this case lief granted by the decree rendered, 
 
 showing that he in any respect repre- the contract must be clearly proved 
 
 sented the commission. When he an- and be certain and unambiguous in 
 
 nounced to the complainants that the all its parts and terms." Long v. 
 
 matter of the privilege must first go Long, 118 111. 638, 9 N. E. 247; 
 
 to the council of administration, he, Clark v. Clark, 122 111. 388; Rector 
 
 in effect, expressly advised them of v. Rector, 3 Gilm. (111.) 105. "When 
 
 the limitation upon his authority." the contract was finally reduced to 
 
 See, also, Olmsted v. Michels. 36 writing and executed the substruct- 
 
 Fed 455 ure of the railroad had been com- 
 
 35. Dulaney v. Scudder, 94 Fed. pleted through appellee's farm. The 
 
 6 36 C C A. 52. two openings and no other had been 
 
 36. Chicago, etc., R. Co. v. New made or left, and all parties knew 
 York, etc., R. Co., 24 Fed. 516. their character, size and location, and 
 
 37. Allison Bros. Co. v. Allison, it was in respect of these openings 
 
 7 N. Y. Supp. 268. thus physically existing that the 
 
 38. Rock Island R. Co. v. Dimick, parties contracted as it is alleged and 
 
 655
 
 §435 
 
 Relating to Conteacts. 
 
 mandatory injunction enforce specific performance of a contract 
 between a street railway company and a turnpike road company, 
 so as to compel the former to lay its roads at the height and in the 
 location specified in the contract, and to construct a solid and 
 smooth surface between the track and the improved portion of the 
 road as stipulated in the contract. 39 A contract is not so uncertain 
 that it cannot be enforced by injunction from the mere fact that it 
 does not attend to every detail which may be involved in its execu- 
 tion. 40 
 
 § 435. Unfair and involved contracts. — A contract which is 
 wanting in mutuality, or which is unfair and oppressive to one of 
 the parties, will not be enforced against him by injunction. 41 Nor 
 will a contract which is so uncertain and vague in its terms that 
 it would not be decreed to be specifically enforced. 42 But several 
 
 proved. ... We are of opinion 
 that the court had power to protect 
 the appellee in the enjoyment of his 
 rights under this contract." Deere v. 
 Cole, 118 111. 165; Chicago, etc., R. 
 Co. v. Hay, 119 111. 493; Morrison v. 
 King. 62 111. 30; Green v. Green, 34 
 111. 320. 
 
 39. Chester & Darby T. R. Co. v. 
 Chester, Darby & P. R. Co., 217 Pa. 
 St. 272, 66 Atl. 658. 
 
 40. House v. Clemens, 24 Abb. N. 
 C. 381. 
 
 41. Pullman's Car Co. v. Missouri, 
 etc., R. Co., 55 Fed. 138; Philadel- 
 phia Ball Club v. Hallman, 8 Pa. Co. 
 Ct. 57; Marble Company v. Ripley, 
 10 Wall. 339, 19 L. Ed. 955; Philips 
 v. Mining Company, 7 Phila. 619; Oil 
 Creek R. Co. v. Atlantic, etc., R. Co., 
 57 Pa. St. 65; Backus' Appeal, 58 Pa. 
 St. 186; Meason v. Kaine. 63 Pa. St. 
 335; Patton v. Develin, 2 Phila, 103; 
 Dornan's Estate, 2 W. N. C. 522. 
 
 42. Hammer v. McEldowney. 46 
 Pa. St. 334; Jones v. Pennell, 1 
 Phila. 539; Fussell v. Rhodes, 2 
 
 Phila. 165. Two brothers assigned to 
 one C. a one-third interest in two 
 patents, one for an improvement in 
 cigarettes and one for an improve- 
 ment in cigarette machines, and " any 
 improvements, renewals, or reissue 
 of said cigarettes, cigarette machines, 
 or " patents, " meaning hereby to in- 
 vest in " C. " an undivided one-third 
 of said patents, extension, or im- 
 provements thereof." By another 
 agreement an undivided one-fourth 
 interest was conveyed to A. by the 
 brothers and C. in the patents and 
 stock owned by them under the firm 
 name of A. Bros. & Co., " as well as 
 new patents, machines, etc., which 
 may be" used in the business; the 
 intent being to give A. a one-fourth 
 interest in all " the patents and im- 
 provements on the same which may 
 hereafter be made, machines, stock." 
 etc., of A. Bros. & Co. This firm, 
 and all the above parties, transferred 
 to plaintiff all the property of the 
 firm, " together with all patents 
 owned by any or either of said firm 
 
 656
 
 Relating to Contracts. § 436 
 
 contracts which relate to the same subject matter and constitute 
 but a single transaction may be construed together in such a way 
 as to carry into effect the intention of the parties, and be enforced 
 by injunction. 43 
 
 § 436. Contracts conferring exclusive rights. — Where parties 
 enter into a contract by which exclusive rights and privileges are 
 granted a court of equity will entertain jurisdiction of a proceed- 
 ing to enjoin a breach thereof. 44 So where the supervisors of a 
 city made a contract with an individual for the period of twenty 
 years for the removal of all dead animals not slain for human food, 
 it was decided that an injunction against the delivery of the car- 
 casses of any such animals to any other person except the plaintiff 
 or his assigns would be granted. 45 And where a hotel proprietor 
 has granted one telegraph company the exclusive privilege of 
 establishing and operating an office upon his premises, equity will 
 interfere by injunction to prevent a breach of the contract in the 
 form of an extension of the same facilities to another and a rival 
 company; the remedy at law of the party having the first and 
 unquestioned right being inadequate. 46 But in a recent case in 
 
 for improvements in cigarettes and Bros. Co. v. Allison } 7 N. Y. Supp. 
 
 cigarette machines." By a fourth 268. 
 
 agreement the brothers and C. trans- 43. Joy v. St. Louis, 138 U. S. 1, 
 
 ferred to plaintiff the "respective in- 38, 11 S. Ct. 243, 34 L. Ed. 843. 
 
 terests which we have heretofore en- 44. Western Union Teleg. Co. v. 
 
 joyed as members of said firm" in Rogers, 42 N. J. Eq. 311. 11 Atl. 13; 
 
 two patents for cigarettes and ma- Petrolio Mfg. Co .v. Jenkins, 29 App. 
 
 chines, "this transfer to include any Div. (N. Y.) 403, 51 N. Y. Supp. 
 
 improvements, renewals, or reissues" 1028; Lowenstein v. Fuldner, 2 Misc. 
 
 of the patents. Held, that these R. (N. Y.) 176, 21 N. X. Supp. 615; 
 
 agreements did not so clearly trans- Bald Eagle Valley Railroad Co. v. 
 
 fer to plaintiff or assure to it the Pennsylvania R. R. Co., 171 Pa. St. 
 
 right to any interest in any in- 284, 33 Atl. 239, 50 Am. St. Rep. 
 
 vention of one of the brothers not al- 807, 29 L. R. A. 423. 
 
 ready patented, or which should be 45. Alpers v. City & County of 
 
 patented as improvements on the for- San Francisco, 32 Fed. 503. 
 
 mer patent, as to justify a tern,- 46. Western Union Tel. Co. v. 
 
 porary injunction for violation of the Rogers, 42 N. J. Eq. 311, 11 Atl. 13. 
 
 contract by using any improved ma- In this case it appeared that the 
 
 chine of defendant's invention pend- complainants were given the exclus- 
 
 ing the trial of such issue. Allison ive right to have and operate a tele- 
 
 657 
 42
 
 §§ 437, 437a Relating to Contracts. 
 
 New York it is decided that the breach of a contract giving one 
 the exclusive privilege of the public stenographer's office in a hotel 
 will not be enjoined where the complainant has an adequate remedy 
 at law for damages and the defendant is financially responsible. 47 
 Again, where a person has been given the right by the lessees of 
 a theater for a certain length of time to use the curtain for adver- 
 tisiuo- purposes, and in reliance upon such contract has entered 
 into contracts for advertising and has prepared his curtain, the 
 lessees will be enjoined from depriving him of the right to use 
 such curtain in accordance with the contract or from using another 
 curtain. 48 And an exclusive right to print and sell copies of a work 
 may be protected by injunction. 49 
 
 § 437. Same subject. — A court of equity will interfere by in- 
 junction at the suit of a lessee who claims an exclusive contract 
 right to carry on a particular business on the leased premises, to 
 prevent another lessee, having notice of that right, from violating 
 it, the jurisdiction in such a case being analogous to the remedy 
 by specific performance, and founded also on the necessity of pre- 
 venting a constantly recurring grievance, for which there can be 
 no adequate compensation in damages. 50 
 
 § 437a. Same subject; gas contracts with municipality. — A 
 city having under authority made a contract with a gas company to 
 furnish a city gas light for a term of years, with an exclusive right 
 to the company to use the streets for that purpose, may be enjoined 
 
 graph office in a hotel for the season 47. Hess v. Roberts (N. Y. App. 
 
 and for each succeeding season unless Div., 1908), 108 N. Y. Supp. 894. 
 
 either party to the contract should 48. Beer v. Canary, 2 App. Div. 
 
 give a written notice of an intention (N. Y.) 518, 38 N. Y. Supp. 23. 
 
 to terminate the contract at least 49. Standard Amer. Pub. Co. v. 
 
 ninety days prior to the beginning of Methodist Book Concern, 33 App. 
 
 a season. It was decided that the Div. (N. Y.) 409, 54 N. Y. Supp. 55. 
 
 proprietor of the hotel would be en- 50. Clay v. Powell, 85 Ala. 538, 5 
 
 joined from permitting another tele- So. 330; Parkman v. Aicardi, 34 
 
 graph company to maintain a com- Ala. 393; Maddox v. White, 4 Md. 
 
 peting office in such hotel, where the 72; Manhattan, etc., Co. v. New Jer- 
 
 specified notice had not been given. sey Stock Yard, 23 N. J. Eq. 161; 
 
 Frank v. Brunneman, 8 W. Va. 462. 
 
 658
 
 Relating to Contracts. 
 
 § 437b 
 
 from conferring the right to use the streets for the same purpose 
 upon another gas company. 51 But in another case it is decided that 
 the fact that a city has entered into a contract with a gas company, 
 by which the latter is to furnish gas for lighting the city for a 
 period of years, is no ground for an injunction to restrain the city 
 from contracting with another company for electric lights for light- 
 ing streets and public places, when the interests of the city seem 
 to require such a course ; and, if the gas company is injured by a 
 refusal on the part of the city to have its streets lighted with gas, 
 its remedy is by an action for damages. 52 A natural gas company 
 which has agreed with a borough to furnish gas to a schoolhouse 
 and church in consideration of the right of way granted to it, will 
 be restrained by injunction, at the suit of the district, from after- 
 wards shutting off the gas supply at such schoolhouse and church, 
 on the ground of irreparable injury. 53 
 
 § 437b. Gas contracts generally ; electricity. — An injunction 
 will lie to restrain a gas company from discontinuing its supply of 
 
 51. Newport City v. Newport 
 Light Co., 84 Ky. 166. See, also, 
 Jersey City Gas Co. v. Dwight, 29 N. 
 J. Eq. 242. As to the right of a city 
 acting under legislative authority to 
 grant such a franchise or privilege to 
 a company, see New Orleans Gas Co. 
 v. Louisiana Light Co, 115 U. S. 
 659, 6 S. Ct. 252, 29 L. Ed. 516; 
 Louisville Gas Co. v. Citizens' Gas 
 Co., 115 U. S. 683, 6 S. Ct. 265, 29 
 L. Ed. 510; New Orleans Water 
 Works v. Rivers, 115 U. S. 674, 6 S. 
 Ct. 273, 29 L. Ed. 525. 
 
 52. City of Newport v. Newport 
 Light Co., 14 Ky. Law Rep. 845, 21 
 S. W. 645. 
 
 53. Sewickley Borough School 
 Dist. v. Ohio Valley Gas Co., 154 Pa. 
 St. 539, 25 Alt. 868. 
 
 In this case it appeared that the 
 defendant, a natural gas company, in 
 
 consideration of privileges extended 
 to it by a borough, agreed to furnish 
 gas free of cost to the public build- 
 ings and churches of the borough, 
 with the proviso, however, that if 
 similar privileges should be granted 
 to another company, the burden 
 should be decreased pro rata accord- 
 ing to the number of franchises 
 granted. Subsequently similar priv- 
 ileges were granted to another com- 
 pany, and defendant agreed to fur- 
 nish the schoolhouse and one church 
 with gas, if the second company 
 would furnish the other public build- 
 ings and churches. On a bill in 
 equity to enjoin the defendant from 
 cutting ofx the supply of gas from 
 the schoolhouse it was decided that 
 the contract was valid and would be 
 enforced in equity. 
 
 659
 
 i§ 438 Relating to Contracts. 
 
 gas in accordance with a contract between the parties. 54 And in a 
 case in California it was decided, in a proceeding to enjoin the dis- 
 continuance of a gas supply in accordance with the terms of a con- 
 tract, that the fact that the proceeding was not an action for specific 
 performance in its strict sense, did not prevent the granting of the 
 injunction, it being sufficient that there was no complete and ade- 
 quate remedy at law. 55 So where a gas company agreed to supply 
 free of charge, a certain amount of gas to the plaintiff and the 
 company subsequently threatened to disconnect certain pipes so as 
 to cut off the gas supply, it was decided that an injunction should 
 be granted restraining the doing of such acts, and that the plaintiff 
 was entitled to this injunction notwithstanding the financial re- 
 sponsibility of the defendant for the payment of any damages 
 sustained by the plaintiff. 56 And on the contract of a natural gas 
 company to furnish the owner of glass works with gas for fuel so 
 long as natural gas should continue to be produced from the terri- 
 tory owned by the company, and on a bill showing that plaintiffs' 
 glass works had been constructed, in reliance on the contract, for 
 the use of natural gas as only fuel, and that the company had shut 
 off the supply, endangering loss incapable of accurate adjustment, 
 it was held that plaintiff was entitled to a mandatory injunction 
 to the extent of restoring the status quo. 51 Again, where one enters 
 into a contract with a public service corporation for a supply of 
 electricity, agreeing to use no other current supplied by any other 
 company, it has been decided that there is no adequate remedy at 
 law for a breach by the consumer of his contract in using a current 
 furnished by another company. 58 
 
 § 438. Coal mine contracts. — Where a deed of bargain and 
 sale with words of inheritance granted certain lots, all gas from 
 certain wells, and the perpetual right to mine and carry away coal 
 
 54. Gallagher v. Equitable Gas 56. Graves v. Key City Gas Co., 
 Light Co., 141 Cal. 699, 75 Pac. 329; 83 Iowa, 714, 50 N. W. 283. 
 Xenia Real Estate Co. v. Macy, 147 57. Whiteman v. Fuel Gas Co., 
 Ind. 568, 47 N. E. 147. 139 Pa. St. 492, 20 Atl. 1062. 
 
 55. Gallagher v. Equitable Gas 58. Beck v. Indianapolis Light & 
 Light Co., 141 Cal. 699, 47 Pac. 147. P. Co. (Ind. App. 1905), 76 N. E. 
 
 312. 
 
 660
 
 Relating to Contracts. 
 
 §438 
 
 from all the veins under certain land, the grantee to pay a royalty 
 on all coal mined, there being, however, no condition or covenant 
 requiring him to mine, it was held that an exclusive right to mine 
 and carry away coal was not granted and therefore that the grantee 
 was not entitled to an injunction to prevent the grantor's mining 
 the said coal veins. 59 
 
 59. Jennings v. Beale, 158 Pa. St. 
 283, 27 Atl. 948, per Curiam : " The 
 condition of this grant is inconsist- 
 ent with the intent to convey the 
 coal absolutely and exclude the 
 rights of the grantor. It provides for 
 the payment of a royalty of one- 
 fourth of a cent per bushel on all 
 coal mined by virtue of the convey- 
 ance. There is no time fixed for pay- 
 ment, nor any covenant or condition 
 requiring the grantees to mine. If 
 the contention of the plaintiffs is 
 right, they may never mine any coal, 
 and the defendant might be deprived 
 of his property without payment of 
 the consideration. The view we have 
 taken of this conveyance is sustained 
 by the authorities in similar cases. 
 In Johnstown Iron Co. v. Cambria 
 Iron Co., 32 Pa. St. 241, the grant 
 was the privilege of raising iron ore 
 on his field at 25 cents per ton. . . . 
 and to give the privilege to none else. 
 The court says : ' It was not a sale 
 of all the ore in the land for a round 
 sum, as in the case of Caldwell v. 
 Fulton, 31 Pa. St. 475, but a privi- 
 lege of raising iron ore at 25 cents per 
 ton. . . . Such a right was not 
 exclusive in the grantees, but was 
 to be enjoyed in common with the 
 grantor, his heirs and assigns.' In 
 Clement v. Youngman, 40 Pa. St. 
 341, though the grant was the exclu- 
 sive right to and privilege of search- 
 ing for. digging, raising, and carry- 
 ing away all the iron ore and lime- 
 stone from certain lands described, 
 
 the grantee ' agreeing to pay to 
 grantor, his heirs and assigns at the 
 rate of 20 cents per ton of clean ore,' 
 it was held not to convey a corporeal 
 hereditament, and principally because 
 ' no equivalent was to be given until 
 the ore should be taken, and there 
 was no obligation even to take it.' In 
 Gloninger v. Coal Co., 55 Pa. St. 9, 
 the grant of the free right to dig coal 
 at the coal bed was held to be a mere 
 license. In Caldwell v. Fulton, 31 
 Pa. St. 475, stress is laid upon the 
 fact that the grantee had the right 
 to take all the coal and that the 
 grantor had received all that he was 
 entitled to receive if all were taken. 
 And the court refers to the distinc- 
 tion between that case and Cheatham 
 v. Williamson, 4 East, 469, in which 
 the right to take coal was not a 
 thing for which the consideration 
 mentioned in the deed was given. It 
 was to be paid for when taken. Doe 
 v. Wright. 2 Barn. & Aid. 719. In 
 Funk v. Haldeman, 53 Pa. St. 229, a 
 grant to take oil was held to be ex- 
 clusive. This was placed not so much 
 on the use of the words ' free and un- 
 interrupted' as upon the fact that the 
 grantor had reserved the mineral 
 rights in some portions of the land, 
 and in those granted expressly re- 
 served the right of tillage, which 
 brought the case within the principle, 
 inclusio unius exclusio alterius. In 
 Sanderson v. Scranton, 105 Pa. St. 
 469, there was a lease of all the coal 
 under a certain tract of land with 
 
 661
 
 §439 
 
 Relating to Contracts. 
 
 § 439. Grants of easements. — "Where easements or servitudes 
 are annexed by contract to private* estates, the due enjoyment of 
 them will be protected against encroachment by injunction, though 
 an action at law could be maintained for the recovery of damages. 60 
 This rule was applied where two railroad companies agreed to per- 
 mit the building of tracks on the right of way of each other and to 
 make all crossings needed by the other company, and it. was held 
 that equity would not refuse to decree a specific performance be- 
 cause such performance was intended to extend through a series of 
 years, or because the contract was more beneficial to one company 
 than the other, and that the contract was not wanting in mutuality 
 since it provided for an interchange of like easements. 61 
 
 the right to mine the coal and remove 
 the same. The minimum quantity to 
 be mined each year was fixed and to 
 be paid for whether mined or not. 
 See, also.. Railroad Co. v. Sanderson, 
 109 Pa. St. 583. In Fairchild v. 
 Furnace Co., 128 Pa. St. 497, there 
 was a grant of digging all the ore 
 on the lands. The court says : ' Tt 
 was not only the grant of the right 
 to dig ore, it was a grant of the right 
 to dig all the ore on the lands and 
 for a sum in solido.' In Hope's Ap- 
 peal, 3 Atl. 23; Kingsley v. Hillside 
 Coal Iron Co., 144 Pa. St. 613, 23 
 Atl. 250, and Lazarus' Estate. 145 Pa. 
 St. 1, 23 Atl. 372, agreements in 
 form of lease were held to convey es- 
 tates in the coal referred to because 
 they granted the right to take all the 
 coal, and provided payment for all. 
 The same suggestions will be found 
 in Stoughton's Appeal, 88 Pa. St. 
 202; Bronson v. Lane. 91 Pa. St. 
 153: Scranton v. Phillips, 94 Pa. St. 
 15, and other cases. In Grove v. 
 Hodges, 55 Pa. St. 515. the distinc- 
 tion is marked. It will be observed 
 that in every case where it was held 
 that an exclusive right was conveyed, 
 the deed in express words granted all 
 
 the mineral, or provided payment for 
 all, and in nearly every case both. 
 The deed in this case does not in 
 terms or by necessary implication 
 convey all the coal, nor exclude the 
 grantor nor provide for payment. 
 The view we have taken of this 
 contract is conclusive of the plain- 
 tiff's right to the relief prayed for. 
 The bill being founded not on a right 
 in common but on the exclusive light 
 to the iron ore, and failing to es- 
 tablish that right they have no 
 equity to demand the relief sought. 
 Johnstown Iron Co. v. Cambria Iron 
 Co., 32 Pa. St. 24G. The bill must 
 therefore be dismissed." 
 
 60. Lide v. Hadley, 36 Ala. 627. 
 635; Burden v. Stein, 27 Ala. 104; 
 Trustees v. Cowen. 4 Paige, 510; Sey- 
 mour v. McDonald, 4 Sandf. Ch. 502. 
 
 61. South & North Ala. R. Co. v. 
 Highland Ave. & B. R. Co., 98 Ala. 
 400, 13 So. 682. per Stone, C. J.: 
 " In the case of Lytton v. Railway 
 Co., 2 Kay & J. 394, it was held that 
 where a railway company had 
 agreed with a land owner, through 
 whose estate the railway would pass, 
 to construct and maintain a sidin? 
 connected with their railway at B., 
 
 662
 
 Relating to Contracts. 
 
 §439a 
 
 § 439a. Contract to supply water. — Where one enters into a 
 contract to supply water to another equity may interfere by injunc- 
 tion to prevent a breach of such contract. 62 So where land is con- 
 
 together with all the necessary ap- 
 proaches thereto for public use, for 
 the reception and delivery of goods, 
 1 specific performance could be de- 
 creed of the agreement to construct 
 the siding and approaches without 
 decreeing the company to maintain 
 them when made.' In Sanderson v. 
 Railway Co., 11 Beav. 497, a rail- 
 way company being about to sever 
 the plaintiff's land by their railroad, 
 agreed to purchase the necessaiy por- 
 tion of land, ' subject to the making 
 such roads, ways, and slips for cat- 
 tle as might be necessary.' Held, that, 
 although it was very difficult to exe- 
 cute an agreement thus expressed, 
 yet the plaintiff was entitled to a 
 specific performance, and that the 
 word ' necessary ' must receive a rea- 
 sonable interpretation. In the great 
 case of Joy v. St. Louis, 138 U. S. 1, 
 11 Sup. Ct. 243, 34 L. Ed. 843, the 
 Wabash, St. Louis & Pacific Railway 
 Company had bound itself to permit 
 the St. Louis, Kansas City & Colorado 
 Railway Company to use its right of 
 way from the north line of Forest 
 park, through the park, to the ter- 
 minus of the Wabash Company's 
 road, in the city of St. Louis, for a 
 fair and reasonable compensation. 
 The question was whether the chan- 
 cery court would specifically enforce 
 this contract. It was ruled that the 
 court had power to enforce the spe- 
 cific performance of the agreement 
 by enjoining the appellants from pre- 
 venting the Colorado company from 
 using the right of way and that a 
 remedy at law would be wholly in- 
 adequate. Following this case as a 
 precedent it was said in Union Pac. 
 
 R. Co. v. Chicago, etc., R. Co., 51 
 Fed. 309, that the specific perform- 
 ance of a contract whereby one rail- 
 road lets another into the joint use 
 of its bridge and terminals will not 
 be refused because the acts to be per- 
 formed are numerous and compli- 
 cated, and are to extend through a 
 long term of years. In a note to Con- 
 ger v. Railroad Co., 120 N. Y. 29. 23 
 N. E. 983, in 43 Am. & Eng. R. Cas. 
 G43, 651, is this expression supported 
 by many citations: 'Specific per- 
 formance will be decreed to enforce 
 contracts of a permanent nature be- 
 tween railroad corporations for run- 
 nine: on and use of each other's 
 tracks, or of the track of one cor- 
 poration by the trains of another.' 
 See, also, Chicago, etc., R. Co. v. 
 Union Pac. R. Co., 47 Fed. 15; Wil- 
 son v. Railway Co., 2 DeG., J. & S. 
 475. The foregoing principles and 
 authorities are not at war with Mc- 
 Bryde v. Sayre, 86 Ala. 458, 5 So. 
 971; Ely ton Land Co. v. South & 
 North Ala. R. Co., 95 Ala. 631, 10 
 So. 270. Nor does it conflict when 
 properly applied with Windham Cot- 
 ton Mfg. Co. v. Hartford, etc., R. 
 Co., 23 Conn. 373; Cooper v. Pena, 21 
 Cal. 403; Conger v. Railroad Co., 120 
 N. Y. 29, 23 N. E. 983; Ry. Co. v. 
 Marshall, 136 U. S. 393, 10 S. Ct. 
 846, 34 L. Ed. 385. See. also, Water- 
 man, Spec. Perf., § 49." 
 
 62. Hendricks v. Hughes, 117 Ala. 
 591, 23 So. 637; Wood v. Auburn, 87 
 Me. 287, 32 Atl. 906, 29 L. R. A. 
 376; Van Nest Land & I. Co. v. 
 New York & W. W. Co., 7 App. Div. 
 (N. Y.) 295, 40 N. Y. Supp. 212; 
 Traitel Marble Co. v. Chase, 35 Misc. 
 
 6G3
 
 § 440 Kelatixg to Contracts. 
 
 veyed by a deed giving the grantee the right to certain water 
 privileges from a spring on the land of the grantor, the grantee 
 may maintain a bill in equity to restrain the grantor from inter- 
 fering with such use. 63 And where a water company contracted 
 with a brewery to supply it with water for use in its business it 
 was decided that the company would be restrained from shutting 
 off such supply when such act would stop the brewing and result 
 in the loss of a considerable quantity of malt and also loss of 
 trade. 64 So where a city in consideration of the right to lay water 
 pipes -through a person's property contracted with the owner to 
 give him the free use of two hydrants on such property it was 
 decided that the city would be restrained from discontinuing such 
 service. 65 
 
 § 440. Enjoining assignee of contract ; tenant. — Not only may 
 the original parties to a contract be enjoined from a breach of it, 
 but also one who has assumed the contract may be so enjoined; 
 and if a person so conduct himself as to lead the other party to 
 believe that he has made the contract his own and his acts aire 
 explicable only upon that theory, he will not be permitted to 
 repudiate its obligations. Thus an injunction will lie to enjoin a 
 water company which has bought out another company, from 
 breaking a contract of that company to supply water to a brewery, 
 when turning off the water would stop the brewing, destroy a 
 large quantity of malt, and injure the brewers' trade. 66 And the 
 assignee of a contract may be enjoined from bringing actions there- 
 under in another State under laws which are different from those 
 in the State where the contract was entered into, and in which it 
 
 R. (N. Y.) 233, 71 N. Y. Supp. 628; G5. Brown v. City of Frankfort, 
 
 Cleburne Water, I. & L. Co. v. Cle- 10 Ky. Law Rep. 462. 
 
 burne, 13 Tex. Civ. App. 141, 35 S. 66. Horsky v. Helena Consolidated 
 
 W - 733 - Water Co., 13 Mont. 229, 33 Pac. j 
 
 As between lessor and lessee, 689. See, also, Wiggins Ferry Co. v, 
 
 see Chapter XLII herein. Ohio, etc., R. Co., 142 U. S. 396. 408, 
 
 63. Wright v. Newton, 130 Mass. 12 S. Ct. 188, 35 L. Ed. 1055; Chi- 
 553, eago, etc., R. Co. v. Chicago, etc., Coal 
 
 64. Horsky v. Helena Consol. W. Co., 79 111. 121. 
 Co., 13 Mont. 229, 33 Pac. 689. 
 
 664
 
 Relating to Contracts. § 440a 
 
 was to be performed and in which both of the parties to the con- 
 tract as well as the assignee reside. 67 And the tenant or assignee 
 of a vendee may be enjoined from the breach of the vendee's 
 covenant which runs with the land. 6 * 5 A party who has assigned 
 his equitable right in a contract not assignable at law will also be 
 restrained from interfering to prevent the assignee from using his 
 name in enforcing the contract in a court of law. 69 
 
 § 440a. Against one not party to a contract. — A court of 
 equity will in some cases grant an injunction restraining one who 
 is not a party to a contract from interfering with one who is a 
 party thereto for the purpose of inducing him to break such con- 
 tract. 6 ^ So in Massachusetts it is said to be settled that there is no 
 distinction between a defendant's enticing away a plaintiff's 
 servant and defendant's inducing a third person to break any other 
 contract between him and the plaintiff. 70 In this case it was 
 decided that where the plaintiff proves that the defendant unlaw- 
 fully interferes or threatens to interfere with his rights under a 
 contract, and further makes out in proof that damages will not 
 afford an adequate remedy, equity will issue an injunction. 71 So 
 where under a contract between a manufacturer and wholesale 
 dealers the latter can only sell to persons having a contract with 
 the manufacturer by which the price is fixed at which such per- 
 sons may sell to consumers, it is held that a third party may be 
 enjoined from inducing a purchaser who had such a contract as 
 to price from violating his contract by selling the goods to such 
 party. 72 And where by a contract between a publisher of a copy- 
 
 67. Sandage v. Studebaker Bros. 1907), 80 N. E. 817. 
 
 Mfg. Co., 142 Ind. 48, 41 N. E. 380, 71. Beekman v. Marsters (Mass. 
 
 34 L. R. A. 363. 1907), 80 N. E. 817; Pickett v. 
 
 68. Sutton v. Head, 86 Ky. 156, 5 Walsh, 192 Mass. 572, 78 N. E. 753: 
 S. W. 410. See, also, Hall v. Solo- Vegelahn v. Guntner. 167 Mass. 92, 
 mon, 61 Conn. 476, 23 Atl. 876. 44 N. E. 1077, 35 L. R. A. 722, 57 
 
 69. Deaver v. Eller, 7 Ired. Eq. Am. St. Rep. 443. 
 
 24, 26. 72. Wells & Richardson Co. v. 
 
 69a. Dr. Miles' Medical Co. v. Abraham. 146 Fed. 190. Compare 
 
 Goldthwaite, 133 Fed. 794. Waterman Co. v. Waterman. 27 App. 
 
 70. Beekman v. Marsters (Mass. Div. (N. Y.) 133, 50 N. Y. Supp. 131. 
 
 665
 
 § 441 Relating to Contracts. 
 
 righted publication and the original purchasers the latter are not 
 to sell such publication at less than a stated figure, it has been 
 decided that the original seller is entitled to relief in equity where 
 unlawful and malicious attempts are made by a third party to 
 induce a breach of the contract by the original purchasers. 73 Again, 
 where a person has a contract to act as the agent of another 
 within a certain territory and the party with whom he has the 
 contract is induced by a third person to break such contract and 
 enter into a new one by which the latter is employed to act as the 
 agent, it is decided that a court of equity will enjoin the latter 
 from so acting. 74 And an injunction will be granted restraining 
 a third person from inducing one to break a contract which he has 
 with a news agency by which he is supplied with information on 
 condition that he shall not disclose such information to third 
 persons. 70 
 
 § 441. Taxpayers' actions to restrain or enforce contracts. — 
 
 In Massachusetts it is held that a court of equity has no jurisdic- 
 tion to entertain a suit by individual taxpayers to restrain a city 
 from carrying out an invalid contract. 76 But a different rule exists 
 
 73. Bobbs-Merrill Co. v. Straus, contract for building the bridge had 
 147 Fed. 15, 77 C. C. A. 607. previously been entered into by the 
 
 74. Beekman v. Marsters (Mass. commissioner of highways, and that 
 1907), 80 N. E. 817. the subsequent contract should, on 
 
 75. Exchange Teleg. Co. v. Central that account, be declared invalid. 
 News [1897], 2 Ch. 48. 66 L. J. Ch. Held insufficient ground for an in- 
 N. S. 672, 76 Law. T. Rep. 91. junction, the validity of the action 
 
 76. Steele v. Municipal Signal Co., of the board of supervisors, and not 
 160 Mass. 36, 35 N. E. 105, follow- the validity of the contracts, being in 
 ing Baldwin v. Wilbraham, 140 Mass. question. Barker v. Town of Oswe- 
 459, 4 N. E. 829. gatchie, 16 N. Y. Supp. 727. 
 
 In an action by a taxpayer to Since Sayles' Civil Stat., art. 3715, 
 enjoin the erection of a bridge charging the superintendent of public 
 by a town, which it had been au- instruction with the administration 
 thorized to build by the county of the school law. requires him to 
 board, on the ground that the whole hear all appeals from the rulings and 
 proceeding was a conspiracy to divert decisions of subordinate school offi- 
 the public money to the private pur- cers, and article 3714 allows an ap- 
 pose of draining certain swamp lands. peal from his decision to the State 
 plaintiff further urged that a valid board of education, taxpayers, unless 
 
 666
 
 Relating to Contracts. § 442 
 
 in some other States. 77 So in a case in Indiana it is decided that 
 an action by a taxpayer to prevent the threatened execution of an 
 illegal contract by school trustees for the payment of money to one 
 of such trustees will not be defeated by the fact that the execution 
 of the contract would constitute a cause of action upon the bond of 
 the trustee. 78 But in a case in New Hampshire it is decided that 
 a taxpayer cannot maintain a bill for an injunction against the 
 violation bv an academy of a contract with the school district, 
 in a matter not affecting plaintiff's interest, for a school district, 
 being a body corporate with power to sue and be sued, must exercise 
 its own remedy in its corporate capacity. 79 And a bill by taxpayers 
 to restrain the payment of money by a village under a contract is 
 fatally defective in not making the person entitled to the payment 
 or his successor in interest a party to the bill. 80 One not a party 
 to a contract, between another and a town, but merely a citizen 
 of the town, cannot demand an injunction against a breach, his 
 interest not being special. sl 
 
 § 442. Same subject. — An owner of land abutting on a street, 
 the roadbed of which is being paved in an imperfect manner and 
 in breach of his contract by a contractor with the city, has a 
 standing in equity to restrain the common council from paying 
 for such work in cases in which he will be assessed in part for the 
 cost, since if he stands by and sees the city pay the contractor he 
 will have to pay his assessment. 82 
 
 they have exhausted these remedies 78. Alexander v. Johnson, 144 Ind. 
 
 cannot maintain a suit to enjoin the 82, 41 N. E. 811. 
 
 payment of the school fund to a 79. Page v. Haverhill Academy, 63 
 
 teacher under a contract made with N. H. 216. nr ^^ 
 
 him bv the school trustees, on the 80. Hoppock v. Chambers, 96 Mich, 
 
 ground that the teacher maintained 509. 56 N. W. 86 
 
 a sectarian school, and that the 81. Bosworth v. Norman, 14 R. I. 
 
 trustees therefore had no authority to 521. 
 
 make the contract. Nance v. John- 82. Lodor v. McGovern 48 N. J. 
 
 sou, 84 Tex. 401. 19 S. W. 559. Eq. 275, 22 Atl. 199; State v Jer- 
 
 77. Alexander v. Johnson, 144 Ind. sey City, 29 N. J. Law, 441; Bond 
 
 82 41 N E 811; Deweese v. Hut- v. Newark. 19 N. J. Eq. 370; 
 
 ton, 144 Ind. 114. 43 N. E. 13. Schumm v. Seymour, 24 N J. Eq. 
 
 See Dillon, Munic. Corp., 4th ed., 144; Liebstien v. Newark. 24 N J. 
 
 § Q14 Eq. 202. A contract with the btate 
 
 0G7
 
 §443 
 
 Relating to Contracts. 
 
 § 443. Injunctions in aid of specific performance. — An in- 
 junction to restrain a breach of a contract often operates to all 
 intents* and purposes as a decree for its specific performance. 83 
 Where, under a bill for specific performance of a contract of sale, 
 the complainant, after obtaining a temporary injunction against a 
 sale to other parties, withdraws so much of the bill as seeks 
 specific performance, with the understanding that if the court finds 
 him entitled to specific performance, it shall award damages in 
 lieu thereof, it is 1 then proper to dissolve the injunction, since it 
 could be granted only as incident to the relief originally sought. 84 
 And this rule that an injunction in aid of specific performance 
 will be denied where the facts alleged in the complaint do not 
 make out a case entitling plaintiff to specific performance, 85 is 
 
 board of engineers under La. Acts, 
 1884, No. 7, for straightening a navi- 
 gable watercourse at the expense of 
 the persons interested, is a private 
 enterprise; and an injunction thereon 
 cannot be resisted on the pretense 
 that it is in the exercise of the police 
 power of the State, or is sanctioned 
 by the levee laws. Chaffe v. Treze- 
 vant, 38 La. Ann. 746. 
 
 83. Joy v. St. Louis, 138 U. S. 
 1, 46, 11 S. Ct. 243, 34 L. 
 Ed. 843, per Blatchford, J.: 
 " The prayer for an injunction to 
 restrain the Wabash company and 
 its receiver from refusing to permit 
 the Colorado company to use the 
 right of way of the Wabash company 
 is a prayer for all that is necessary 
 to secure practically the specific per- 
 formance of the agreement. Dinham 
 v. Bradford, L. R. 5 Ch. 519; Tillect 
 v. Charing Cross Bridge Co., 26 
 Beav. 419; Raphael v. Thames Val- 
 ley Railway, L. R. 2 Eq. 37; 
 Tscheider v. Biddle, 4 Dillon, 55; 
 Biddle v. Ramsey, 52 Mo. 153 ; Arnot 
 v. Alexander, 44 Mo. 27 ; Hug v. Van 
 Burkleo, 58 Mo. 202; Gregory v. 
 Mighell, 18 Ves. 328." 
 
 84. Wescott v. Mulvane, 58 Fed. 
 305. 
 
 85. § 7 ante; Baldwin v. Society, 
 etc., 9 Sim. 393 ; Peto v. Brighton R. 
 Co.. 1 Hem. & M. 468; McKibbin v. 
 Brown. 1 McCart. 13. 
 
 The general rule 1* that an in- 
 junction will not be granted to re- 
 strain a breach of contract by defend- 
 ant when the complain? nt's prom- 
 ises are of such a nature that they 
 cannot be specifically enforced unless 
 they have been already performed. 
 Fowler Utilities Co. v. Gray (Ind. 
 1907). 79 N. E. 897, citing 22 Cyc. 
 850. 
 
 " It is a general principle that 
 when, from personal incapacity, the 
 nature of the contract, or any other 
 cause, a contract is incapable of be- 
 ing enforced against one party, that 
 party is equally incapable of en- 
 forcing it specifically against the 
 other, though its execution in the 
 latter way might in itself be free 
 from the difficulty attending its exe- 
 cution in the former." Marble Co. 
 v. Ripley, 10 Wall. (U. S.) 339, 359, 
 19 L. Ed. 955. 
 
 In California it is provided by 
 
 668
 
 Relating to Contracts. § 444 
 
 especially stringent when a mandatory injunction is asked, as such 
 an injunction is seldom allowed before final hearing. 86 The gen- 
 eral rule is not to decree a specific performance of contracts which 
 by their terms stipulate for a succession of acts whose perform- 
 ance cannot be consummated by one transaction, but will be con- 
 tinuous and require protracted supervision. 87 Therefore an 
 injunction will not be granted to prevent the breach of a contract 
 by which a railroad company agreed to furnish an express com- 
 pany, from time to time requisite conveniences and rooms, and 
 cars and extra trains and assistance of employees when necessary. 88 
 And an injunction will not lie against the breach of a contract by 
 the Associated Press to give the exclusive right of publishing their 
 dispatches, for an indefinite period, at a certain place, to a publish- 
 ing company, in return for the latter' s services as their correspond- 
 ent and agent, since the contract could not be specifically enforced 
 against complainant. 89 
 
 § 444. Same subject ; when injunction lies. — When there is a 
 plain breach of a clear contract a court of equity will decree specific 
 performance and if necessary enjoin a breach if the remedy at law 
 is not as full and complete as in equity. 90 And this is the rule also 
 as to contracts affecting personal property, though not so freely 
 
 code (Civ. Code, § 3423) that where 89. Iron Age Pub. Co. v. Western 
 
 the performance of a contract cannot Union Tel. Co., 83 Ala. 498, 3 So. 
 
 be specifically enforced, an injunc- 449. 
 
 tion will not lie to prevent a breach 90. Great Northern R. Co. v. Man- 
 thereof. Farnurn v. Clarke (Cal. Chester R. Co., 5 DeG. & Sm. 138; 
 1906), 84 Pac. 166. Lide v. Hadley, 36 Ala. 627, 635, per 
 
 86. Fargo v. New York, etc., R. Walker, J.: "The fact that the 
 Co., 23 N. Y. Supp. 360. remedy at law is embarrassed or 
 
 87. Fry. Spec. Perf., § 69; Water- doubtful or difficult or less full and 
 nran, Spec. Perf., pp. 68. 69; Blackett complete than the remedy in equity 
 v. Bates, L. R. 1 Ch. App. 117; Pow- is enough to justify resort to a court 
 ell Duffryn Coal Co. v. Taffvale R. of chancery. American Ins. Co. v. 
 Co., L. R. 9 Ch. App. 331; Blanchard Fisk, 1 Paige, 90; Boyce v. Grundy, 
 v. Railroad Co., 31 Mich. 43; Atlanta, 3 Pet. 210, 7 L. Ed. 655; Barnes v. 
 etc., R. Co. v. Speer, 32 Ga. 550; Dan- Lloyd, 1 How. (Miss.) 584; Pearl v. 
 forth v. Philadelphia, etc., R. Co., 30 Nashville, 10 Yerg. 179." 
 
 N. J. Eq. 12. See Xenia Real Estate Co. v. Macy, 
 
 88. Fargo v. New York, etc., R. 147 Ind. 568, 47 N. E. 147. 
 Co., 23 N. Y. Supp. 360. 
 
 669
 
 § 445 
 
 Relating to Contracts. 
 
 applied. 91 Thus where defendant promised to plaintiff the ex- 
 clusive right to operate a telegraph office in a hotel, it was held 
 that an injunction should issue to restrain defendant from allowing 
 a rival telegraph company to operate an office there, the remedy at 
 law being inadequate. 92 And equity will grant a prayer for a 
 discovery, an accounting, an injunction, and the appointment of a 
 receiver where complainant alleges that defendant, a building and 
 loan association, by its constitution and by-laws promised that 
 when each shareholder had made payments upon his shares of 
 stock, making such shares of the value of $200 each, it would 
 declare the institution closed, and deliver to those who had taken 
 loans their securities to be canoe led, and pay to those who had 
 simply invested their money the full value of their shares ; that he 
 had made such payments, and the company had declared the insti- 
 tution closed; and that the company has in its possession assets, 
 and refuses to pay him after the lapse of ten years. 93 A contract 
 will not be enforced by injunction or the specific performance of it 
 aided by injunction after the contract had been abandoned or nulli- 
 fied by the parties to it. 94 
 
 § 445. Same subject ; where contract uncertain. — Except in a 
 clear case of right and to prevent irreparable, injury a preliminary 
 injunction ought not to be granted to enforce specific performance 
 
 91. Johnson v. Brooks, 93 N. Y. took loans promptly received all the 
 337. benefits designed by its formation, 
 
 See Petrolia Mfg. Co. v. Jenkins. while those who simply invested their 
 
 29 App. Div. (N. Y.) 403, 51 N. Y. cash have been obliged to wait ten 
 
 Supp. 1028. years, with the prospect of receiving 
 
 92. Western Union Tel. Co. v. Rog- at last less than the principal in- 
 ers 42 N. J. Eq. 311, 11 Atl. 13. vested. The assets remaining are 
 
 93. Amer. v. Union Bldg. & Loan equitable assets. They must be dis- 
 Assn., 50 N. J. Eq. 170, 24 Atl. 552, tributed ratably among the sliare- 
 per Bird, V. C. : "It would be very holders, for which purpose they have 
 difficult for complainant to obtain re- held in trust by the officers of the as- 
 lief in a court of law. It is the duty sociation. There is no way known 
 of this court to enforce this contract. to our system of jurisprudence of 
 It would be monstrous injustice to making such distribution except 
 deny this complainant relief. The through a court of equity." 
 managers of this institution have so 94. Petition of Argus Co., 138 N. 
 conducted its affairs that those who Y. 557, 573, 34 N. E. 388. 
 
 670
 
 Relating to Contracts. 
 
 445 
 
 of a contract. Where the rights of the parties to a contract are of 
 a doubtful character and there are disputes in regard thereto which 
 involve the very terms and obligations of the contract an injunc- 
 tion should not be granted until such rights are settled. 95 And 
 where the validity of a contract is doubtful, as where it is partly 
 in restraint of trade, equity will not enjoin a breach thereof. 96 
 And when a contract is so uncertain in its terms as not to be a 
 subject of a decree for specific performance, an injunction in aid 
 of a specific performance should not be granted. 97 Again, whieire 
 in a suit to enforce an oral agreement to convey land and to enjoin 
 any further conveyance of the same land the parties to the agree- 
 ment directly contradict each other as to its existence, and the other 
 
 95. Illinois. — Cleveland v. Martin, 
 218 111. 73, 57 N. E. 772; Olin v. 
 Bale, 98 111. 53, 38 Am. Rep. 78. 
 
 Michigan. — Caswell v. Gibbs, 33 
 Mich. 331. 
 
 Missouri. — Chouteau v. Union Ry. 
 & T. Co., 22 Mo. App. 286. 
 
 New York. — Arena Athletic Club v. 
 McPartland, 41 App. Div. 352, 58 N. 
 Y. Supp. 477; Heine v. Rohner, 29 
 App. Div. 239, 51 N. Y. Supp. 427; 
 Seventh Regiment Veterans v. Field 
 Officers, 5 N. Y. Supp. 391, aff'd 60 
 Hun, 578, 14 N. Y. Supp. 811. 
 
 Ohio.— Bryan v. Chyne, 22 Wkly. 
 Law Bull. 165. 
 
 Pennsylvania. — Gatzmer v. Ger- 
 man Rowan C. St. V. O. A., 147 Pa. 
 St. 313, 23 Atl. 452; Appeal of 
 Brown, 62 Pa. St. 17; Mammoth Coal 
 Co.'s Appeal, 54 Pa. St. 183; Tren- 
 with v. Dealy, 12 Phila. 386; In re 
 Broder's Estate, 2 Kulp. 107. 
 
 Wisconsin. — Hazelton v. Putnam, 
 3 Pin. 107, 54 Am. Dec. 158. 
 
 Where an action has been 
 brought to compel specific per- 
 formance of an agreement to 
 convey leasehold property, and it 
 is disputed whether the agreement 
 was executed by an autnorized attor- 
 
 ney and also whether there was an- 
 other action pending between the 
 same parties on the same cause of 
 action, an injunction to restrain a 
 referee appointed by a judgment 
 from conveying the leasehold prop- 
 erty, and to appoint a receiver of the 
 rents and profits during the action, 
 will not be granted, as the rights of 
 plaintiff will be fully protected by 
 filing a notice of lis pendens. Fitzger- 
 ald v. Deshler, 55 N. Y. Super. 91. 
 
 96. Mandeville v. Harman, 42 N. 
 J. Eq. 185, 7 Atl. 37. 
 
 97. South Yorkshire R. Co. v. 
 Great Northern R. Co., 1 Sm. & Gif. 
 324, 345, per V. C: "Before all 
 things the court when asked to enter- 
 tain an application for an injunction 
 upon the footing that a specific per- 
 formance may be decreed, ought to 
 look for certainty in the terms of 
 the agreement and for something clear 
 and intelligible with which it can 
 deal; and the court would expect to 
 find in the terms of the agreement 
 sought to be specifically performed 
 such terms as this court could, by en- 
 forcing its own decree, direct in all 
 respects to be specifically performed." 
 
 671
 
 §446 
 
 Relating to Contracts. 
 
 witnesses merely swear to certain admissions as to an agreement 
 of some kind without revealing its terms, the agreement and its 
 terms are not proved with sufficient certainty to justify a decree 
 for specific performance and the bill will be dismissed for want of 
 equity. 98 But the signing and acknowledgment of a contract by 
 the party of the first part and itst acceptance and recording by the 
 party of the second part make it a binding contract between them 
 so that an injunction may lie to aid its specific performance, 
 though it be not signed by the party of the second part. 98 
 
 § 446. Exceptions to general rule ; railroad contracts. — Equity 
 will, however, sometimes restrain the violation of covenants by 
 injunction, notwithstanding their nature is such that specific per- 
 
 98. Barrett v. Geisinger. 148 111. 
 98, 35 N. E. 354, per Bailey, J. : " The 
 rule is well settled that a contract 
 which is sought to be specifically en- 
 forced must be clear, certain, and 
 unambiguous in its terms, and must 
 be either admitted by the pleadings, 
 or proved with a reasonable degree 
 of certainty. As was said in Long 
 v. Long, 118 111. G38: * It is not 
 sufficient, within the rule, to show 
 that a contract of some kind exists 
 between the parties and that it has. 
 in whole or in part, been performed 
 by the complaining party, but all the 
 material terms of the contract must 
 be satisfactorily proved or admitted.' 
 In Langston v. Bates, 84 111. 524, in 
 discussing the question, it was said: 
 ' In order to take a case out of the 
 operation of the statute of frauds, 
 the authorities all agree that a con- 
 tract to convey should be clear and 
 certain in its terms and established 
 by testimony of an undoubted char- 
 acter, which is clear, definite and un- 
 equivocal.' So, in Semmes v. Worth- 
 ington, 38 Md. 298, it was said that 
 in such case, ' the proof must be clear 
 
 and explicit, leaving no room for rea- 
 sonable doubt;' and in Purcell v. 
 Miner, 4 Wall. 517, 18 L. Ed. 
 435, it is said that the com- 
 plainant ' should be held rigidly 
 to full, satisfactory, and indubitable 
 proof.' See, also, Wallace v. Rap- 
 pleye, 103 111. 248; Worth v. Worth, 
 84 111. 442. Applying this rule, we 
 are of the opinion that the evidence 
 fails to establish the agreement al- 
 leged in the bill and its terms with 
 that clearness and certainty which is 
 necessary to entitle the complainant 
 to its specific enforcement." And a 
 contract by a physician who is selling 
 his practice that he will not continue 
 to practice in the same place will not, 
 on doubtful terms, be construed so a3 
 to prevent him doing the business of 
 a druggist. Greenfield v. Gilman, 140 
 N. Y. 168, 35 N. E. 435. 
 
 99. Indianapolis Natural Gas Co. 
 v. Kibby, 135 Ind. 357, 35 N. E. 392. 
 And see Midland R. Co. v. Fisher, 
 125 Ind. 19. 24 N. E. 756; Harlan v. 
 Logansport Natural Gas Co., 32 N. 
 E. 930, 133 Ind. 323. 
 
 672
 
 Relating to Contkacts. § 447 
 
 formance would not be decreed. Thus the breach of a contract 
 between two railroad companies, by which they agree to establish 
 a dispatch freight line, may be enjoined, though the contract could 
 not be specifically enforced. 1 And in England where one of two 
 railroad companies had agreed to work the other's line and carry 
 over it certain specified traffic, it was enjoined from making a 
 wrongful diversion of such traffic. 2 An injunction will lie to re- 
 strain the termination of a contract for the employment of plain- 
 tiff, under which he is to receive a commission on all sales made 
 by him, and for the lease of his machinery, at a specified rental, 
 as damages for the breach could not be estimated at law. 3 And 
 where it is not made clear at a trial whether plaintiff can obtain 
 full damages at law for the violation of a covenant not to build 
 upon or incumber a certain right of way, an injunction against 
 such violation is discretionary with the trial court, and will not be 
 disturbed. 4 
 
 § 447. Specific performance of real contracts ; discretion. — <■ 
 When a contract for the sale of lands is fair and just and free 
 from legal objection, it is a matter of course for courts of equity 
 to specifically enforce it ; but they will not decree specific perform- 
 ance in cases of fraud or mistake, or of hard or conscionable bar- 
 gains, or when such a decree would be inequitable under all the 
 
 1. Chicago & Alton R. Co. v. New labor the value of the service doea 
 York, etc., R. Co., 24 Fed. 516. See, not depend on the productiveness of 
 also, Singer Sewing, etc., Co. v. But- the business but upon the time spent 
 ton Hole Co., 1 Holmes, 253; W. and value of the service or the corn- 
 Union Tel. Co. v. Union Pac. R. Co., pensation agreed to be paid. It is 
 3 Fed. 423. true that as a general rule an ac- 
 
 2. Wolverhampton R. Co. v. Lon- tion for a specific performance of a 
 don, etc., R. Co., L. R. 16 Eq. 433. contract for labor will not be main- 
 
 3. Bronk v. Riley, 2 N. Y. Supp. tained in equity; but that is upon 
 266, per Mayham, J.: "The case the ground that the damage suffered 
 differs from an ordinary contract for by either party can be measured or- 
 service in this: that the contracting dinarily in an action at law. But 
 parties in this case have a commun- this rule is not of universal appli- 
 ity of interest based upon the pro- cation." 
 
 ductiveness of the enterprise, 4. Dexter v. Beard, 7 N. Y. Supp. 
 
 whereas in an ordinary contract for 11. 
 
 673 
 43
 
 § 448 Relating to Contbacts. 
 
 circumstances. So where a contract for the sal* of land pro- 
 vided that the timber therein should be sawed by the vendee into 
 lumber and delivered to the vendor at a stipulated price it was 
 decided that the vendor had such an interest in the timber as 
 would authorize a court of equity to interfere by injunction to 
 restrain the vendee from disposing of the timber contrary to the 
 provisions of the contract. 6 In New York, under the old chancery 
 practice, if the equity of a bill for specific performance failed, the 
 action could not be retained to award such damages for a breach 
 of the contract as could be recovered in a court of law; 7 but now 
 that the Code of Procedure has united legal and equitable causes 
 in the same court, it is competent for the plaintiff to set forth in 
 his complaint a cause of action for specific performance, and also 
 a cause of action for damages for broach of contract, and then if 
 it turns out upon the trial that equitable relief cannot be granted, 
 the plaintiff can yet recover any damages to which he may be 
 entitled. 8 
 
 § 448. When mutuality is wanting. — An injunction will not 
 be granted in aid of an action for specific performance of a con- 
 tract which is unilateral, and therefore will not be decreed to be 
 specifically performed, as where the defendant has a mere option 
 to purchase but is under no obligation to purchase. 9 It has, how- 
 
 5. Margraf v. Muir, 57 N. Y. 155; ployee from breaking his agreement 
 Osgood v. Franklin, 2 Johns. Ch. 1 ; " not to engage in the business car- 
 Seymour v. Delancey, 6 Johns. Ch. ried on by plaintiff for the period of 
 222 two years after leaving plaintiff'* 
 
 6. Burton v. O'Neill Mfg. Co., 126 employment" was modified greatly 
 Ga. 805 55 S. E. 933. because of the significant fact that 
 
 7. Margraf v. Muir, 57 N. Y. 155, the employment was " during the 
 158 pleasure of the plaintiff." 
 
 8. Barlow v. Scott, 24 N. Y. 40; In Wood v. Dickey, 90 Va. 160. 
 Bradley v. Aldrich, 40 N. Y. 504; 17 S. E. 818, Fauntleroy, J.. 
 Pumpelly v. Phelps, 40 N. Y. 59; *aid: "A court of equity in 
 Clark v. Rochester, etc., R. Co.. 18 Virginia will will not decree spe- 
 Barb. 350. cific execution of a contract when 
 
 9. Peacock v. Deweese, 73'Ga. 570. there is not mutuality in both obliga- 
 In Matter of Pollard, 55 N. Y. St. tion and remedy. Both parties must. 
 
 Rep. 157, an injunction which had by the agreement itself, have a right 
 been granted to prevent a former em- to compel a specific performance of. 
 
 674
 
 Relating to Contracts. 
 
 '§ 44l> 
 
 ever, been held that when a contract is originally binding on one 
 party to it and not on the other, the latter may by suit waive the 
 want of mutuality and enforce its specific performance. 10 
 
 § 449. Contracts affecting the public. — The general rule is that 
 a court of equity will not accept jurisdiction of a controversy which 
 will have to remain in litigation indefinitely, and which the court 
 cannot put an end to by its decree. 11 But when the subject matter 
 of a contract concerns the interests of the public, the contract is to 
 be liberally construed and enforced in favor of the public. 12 Thus 
 when the subject matter of a contract is a public means of trans- 
 portation, such as a railroad, a court of equity will be disposed, if 
 necessary, to specifically enforce it by injunction, though the mat- 
 ter may have to continue before the court and receive its attention 
 for a long time. 13 
 
 it, else equity will not execute it. 
 jtfoore v. Randolph, G Leigh, 175, 
 185; Hoover v. Calhoun, 10 Gratt. 
 112; Iron Co. v. Gardiner, 79 Va. 
 305, 311; Cheatham v. Cheatham, 81 
 Va. 395, 403 ; Ford v. Euker, 80 Va. 75, 
 
 9 S. E. 500; Railroad Co. v. Dunlop, 
 86 Va. 346, 349, 10 S. E. 239 ; Edichal 
 Bullion Co. v. Columbia Gold Min. 
 Co., 87 Va. 641, 645, 13 S. E. 100; 
 Graybill v. Brugh, S9 Va. 895, 17 S. 
 E. 558. In Duvall v. Myers, 2 Md. Ch. 
 401, it is said by the court that a 
 Tight to a specific performance of a 
 contract, so far as the mutuality is 
 concerned, depends upon whether the 
 agreement itself is obligatory upon 
 both parties; so that upon the ap- 
 plication of either against the other 
 ■the court would coerce a specific per- 
 formance. Rider v. Gray, 69 Am. 
 Dec. 135 ; Marble Co. v. Ripley, 
 
 10 Wall. 359, 19 L. Ed. 955." 
 Where there is a -want of uin- 
 
 t-uality equity will grant an injunc- 
 tion to enforce performance. General 
 
 Elec. Co. v. Westinghouse Elec. & M. 
 Co., 144 Fed. 458. 
 
 10. Fallon v. Railroad Co., 1 Dill. 
 121; Alabama, etc., R. Co. v. South, 
 etc., Ala. R. Co., 84 Ala. 570, 3 So. 
 2S6. And sec Mott v. Oppenheimer, 
 135 N. Y. 312, 317, 31 N. E. 1097. 
 
 11. Marble Co. v. Ripley, 10 Wall. 
 339. 19 L. Ed. 955. 
 
 12. Joy v. St. Louis, 138 U. S. 1, 
 38, 11 S. Ct. 243, 34 L. Ed. 843; 
 Colman v. Eastern Counties R. Co., 
 10 Bear. 1, 14; Blakemore v. Canal 
 Co., 1 Myl. & K. 154, 165; Parker v. 
 Great VVest. R. Co., 7 Scott, N. R. 
 835. 
 
 13. Joy v. St. Louis, 138 U. S. 
 1, 47, 11 S. Ct. 243, 34 L. Ed. 843. 
 And see Barton v. Barbour, 104 U. 
 S. 126. 26 L. Ed. 672; Milten- 
 berger v. Logansport R. Co., 106 U. 
 S. 286, 311, 1 S. Ct. 140, 27 L. Ed. 
 117; Union Trust Co., v. Illinois 
 Mid. R. Co., 117 U. S. 434, 6 S. Ct. 
 SOn. 29 L. Ed. 963. 
 
 675
 
 §§ 450, 451 Relating to Contracts. 
 
 § 450. Enforcing parol agreement to devise. — Where plaintiff 
 and defendant entered into a parol agreement by which defendant 
 agreed to devise to plaintiff certain property, and upon the per- 
 formance of which agreement plaintiff honestly and faithfully 
 entered and continued for several years and afterwards defendant 
 sold and conveyed the property to another, and the plaintiff 
 brought an action to enjoin such conveyance, it was held that the 
 agreement was binding upon defendant, and plaintiff was entitled 
 to the relief asked. 14 Though such an agreement be by parol, yet 
 if there is such a part performance by the promisee as will take 
 the agreement out of the statute of frauds, a court of equity will 
 decree a specific performance by the promisor, and therefore in a 
 proper case an injunction will lie. 15 A right of way created by 
 express grant in a devise is appurtenant to the land devised, and 
 passes by a conveyance of the land to a purchaser from the devisee, 
 without express mention of the appurtenances, and a court of 
 equity has jurisdiction at the suit of a purchaser from the devisee 
 to enforce the specific performance against the purchaser of the 
 servient lands of such a grant by devise, by establishing the right 
 defining the track, and preventing by injunction the disturbance of 
 the way. 16 
 
 §451. Enforcing implied contracts by injunction; trade 
 secrets. — The English rule of long standing is that a tradesman's 
 clerk is under an implied contract not to make public the trade 
 secrets which he learns in the course of his duty as clerk, and that 
 such contract may be enforced by an injunction. 17 In 1892 this 
 rule was* applied to an apprentice to a firm of engine makers, and 
 
 ' 14. Pfluger v. Pultz, 43 N. J. Eq. Y. 480; Stephens v. Reynolds, 6 N. 
 
 440, 11 Atl. 123. See, also, Van Y. 458; Jones v. Martin, 5 Ves. 265n; 
 
 Duyne v. Vreeland, 12 N. J. Eq. 142, Podmore v. Gunning, 7 Sim. 644. 
 where an agreement to devise to an 16. Lide v. Hadley, 36 Ala. 627; 
 
 infant nephew was enforced in equity, and see Hills v. Miller, 3 Paige, 254; 
 
 the child having lived with his uncle Trustees v. Cowen, 4 Paige, 510. 
 pursuant to the agreement for more 17. Louis v. Swellie (C. A.), 73 
 
 than 25 years. Law. T. Rep. 226; Tipping v. Clark 
 
 15. Johnson v. Hubbell, 10 N. J. (1843), 2 Hare, 383, 393, followed in 
 
 Eq. 332; Davison v. Davison, 13 N. Prince Albert v. Strange, 1 Mac. & 
 
 J. Eq. 246; Parsell v. Stryker, 41 N. G. 45. And, see, Tuck v. Priester, 19 
 
 676
 
 Kelatixg to Contracts. § 451 
 
 be was enjoined from publishing or communicating the contents 
 of a table, compiled by him, of dimensions of various types of 
 engines made by them, on the ground that to do so would be a 
 breach of the implied contract arising from the confidential re- 
 lation which had existed between employer and employee. 18 And 
 a photographer who had taken a negative likeness of a lady in 
 order to supply her with copies on the usual terms, was enjoined 
 from selling or exhibiting copies, both on the ground that there 
 was an implied contract not to use the negative for such purposes, 
 and also on the ground that such exhibition would be a breach of 
 confidence. 19 And in the United States it is decided that one who 
 owns a secret process will be protected against one who, in violation 
 of his contract or other relations to the owner, attempts to make 
 use of such process himself or to impart knowledge of the same to 
 others. 20 The exception to the general rule is that where the con- 
 fidence ordinarily existing between principal and agent does not 
 exist, a contract is not to be implied and an injunction will not be 
 granted. 21 So in a recent case in Iowa it is decided that with the 
 exception of valuable trade secrets acquired while in a given ser- 
 vice, an employee may use the skill and knowledge there gained in 
 the service of a rival, though wrongfully leaving the original em- 
 ployment. 22 And in this connection it has been decided that one 
 who purchases a secret process to be used in manufacturing with 
 
 Q. B. D. 629; Murray v. Heath. 1 145 Fed. 358; Harrison v. Glucose 
 
 B. & Ad. 804; Morison v. Moat, 9 Sugar Ref. Co., 116 Fed. 304, 53 C. 
 
 Hare, 241. C. A. 484, 58 L. R. A. 915; Taylor 
 
 Use of unpatented secret pro- Iron & Steel Co. v. Nichols (N. J. 
 
 cess. — A person who has obtained a Ch. 1905), 61 Atl. 946. 
 secret unpatented process by fraud- 21. Reuter's Telegram Co. v. By- 
 
 ulent means while in the employ of ron. 43 L. J. Ch. 661, where the for- 
 
 another may be enjoined from using eign correspondents of a telegram 
 
 the same. Eastern Extracting Co. company in England were not in the 
 
 v. Greater New York Extracting Co. position of ordinary agents and could 
 
 (N. Y. App. Div. 1908), 110 N. Y. not be compelled by injunction to ex- 
 
 Supp. 738. ercise the reticence which would have 
 
 18. Merryweather v. Moore (1892), been required of them if they had 
 2 Ch. D. 51S. been confidential agents. 
 
 19. Pollard v. Photographic Com- 22. Gossard Co. v. Crosly 132 
 pany, L. R. 40 Ch. D. 345. Iowa. 155, 109 N. W. 483, 6 L. R. A. 
 
 20. Hartman v. Park & Sons Co., (N. S.) 1115. 
 
 077
 
 §452 
 
 Relating to Contracts. 
 
 knowledge that the seller obtained it by fraudulent means will not 
 be granted an injunction restraining the use of such procees by 
 another who fraudulently obtained it from the complainant. 22 
 
 § 452. Enforcing contracts for personal service. — It is a gen- 
 eral rule that a breach of a contract to render personal services to 
 another will not be enjoined except where the services are of such 
 a special, unique or unusual character that their loss cannot be 
 reasonably or adequately compensated for in damages. 24 And the 
 mere fact that a servant, who has broken his contract of employ- 
 ment, is not financially responsible will not support an injunction 
 restraining him from engaging in the service of another. 25 And a 
 petition alleging in substance a high degree of proficiency in the 
 sale of goods is held not to show such special or extraordinary 
 service as to justify an injunction restraining an employee who 
 has broken a contract of employment, from engaging in the service 
 of another. 26 Again, an employer who does not offer to perform his 
 part of a contract for the services of another will not in any event 
 
 23. Vulcan Detinning Co. v. Amer- 
 ican Can Co. (N. J. 1906), 62 Atl. 
 881. 
 
 24. Gossard Co. v. Crosly, 132 
 Iowa, 155, 109 N. W. 483, 6 L. R. A. 
 (N. S.) 1115; Jaceard Jewelry Co. 
 v. O'Brien, 70 Mo. App. 432; Taylor 
 Iron & S. Co. v. Nichols (N. J. 
 1905), (il Atl. 946. See cases cited 
 in following section. 
 
 Employer will mot be enjoined 
 from discharging an employee. Mil- 
 ler v. Warner, 42 App. Div. (N. Y.) 
 208. 59 N. Y. Supp. 956. 
 
 An editor and manager of a 
 newspaper is entitled to an injunc- 
 tion against a denial of his rights 
 under the contract. Jones v. Will- 
 iams. 139 Mo. 1, 39 S. W. 486, 40 S. 
 W. 353, 37 L. R. A. 682, 61 Am. St. 
 Rep. 436. 
 
 A breach by a dentist of a con- 
 tract requiring no special skill other 
 
 than that which could be rendered by 
 an ordinary dentist will not be en- 
 joined for the reason that a substi- 
 tute can be readily supplied and the 
 remedy at law is adequate. Osius v. 
 Hinehman (Mich. 1908), 114 N. W. 
 402. 
 
 Whether equity will grant an in- 
 junction restraining the breach of a 
 contract by an employee depends in 
 a large measure upon whether a sub- 
 stitute for the employee can be read- 
 ily obtained who will substantially 
 answer the purpose of the contract. 
 Dockstader v. Reed, 121 App. Div. 
 (N. Y.) 846, 106 N. Y. Supp. 795. 
 
 25. Gossard Co. v. Crosly, 132 
 Iowa, 155, 109 N. W. 483, 6 L. R. A. 
 (U. S.) 1115. 
 
 26. Gossard Co. v. Crosly, 132 
 Iowa, 155, 109 N. W. 483, 6 L. R. 
 A. (N. S.) 1115. 
 
 678
 
 Kelating to Conteacts. § 452a 
 
 be entitled to an injunction restraining the employee from devot- 
 ing his services to another. 27 Where a contract restrained an 
 employee from entering into the employment of another for a cer- 
 tain length of time and in a certain locality, in an action to restrain 
 the employee from violating such provision and from continuing 
 in an employment in the same line of business, it was held proper 
 to refuse the injunction where it was alleged in the answer that 
 the defendant was induced to sign the contract by false and fraud- 
 ulent representations and without knowledge of its contents, it 
 being doubtful whether the plaintiff was entitled to the relief 
 demanded. 28 But in an action to enjoin the sale of a patent right, 
 plaintiff set up a contract with defendant to perfect a device and 
 to assign to plaintiff the patent and such improvements on it as 
 were made during his employment by plaintiff; on plaintiff's 
 showing that a certain patent was an improvement on the original 
 device, and that it was invented during defendant's employment, 
 defendant was enjoined, pending the action, from disposing of 
 the patent for the improvement, and any models or papers relating 
 to it. 29 
 
 § 452a. Enforcing contracts for personal service ; actors. — 
 Where a person enters into a definite contract to render to another, 
 and to no one else, personal services of such a nature that their loss 
 to the employer and acquisition by another would cause injury 
 not to be compensated for in damages, a breach of the contract in 
 leaving the employer and contracting with a rival may be re- 
 strained by injunction. 30 But even where there is an express 
 negative covenant it is said that the authorities all agree that an 
 injunction will not be granted save in those exceptional cases 
 where the promised service is of a special, unique, unusual, and 
 extraordinary or intellectual character which gives it peculiar 
 value the loss of which cannot be reasonably or adequately com- 
 
 27. Taylor Iron & S. Co. v. Nichols 283. 23 N. Y. Supp. 500. 
 
 (N. J. 1908), 69 Atl. 186. 30. Myers v. Steel Mach. Co. (N. 
 
 28. Tolman v. Mulcahy. 119 App. J. Ch. 1904). 57 Atl. 1080; Metro- 
 Div. (N. Y.) 42, 103 N. Y. Supp. 930. politan Exhibition Co. v. Ward. 9 N. 
 
 29. Cornwall v. Sachs, 69 Hun, Y. Supp. 779, 24 Abb. N. C. 393. 
 
 679
 
 §452a 
 
 Relating to Contracts. 
 
 pensated in damages in an action at law. 31 This has been the rule 
 in England since 1852, and is the settled rule in this country in 
 respect to actors and opera singers of great reputation. 32 And in a 
 recent case in New York it is said in this connection that because 
 of the special nature of contracts for the employment of actors or 
 singers, although the affirmative contract cannot be enforced, courts 
 
 31. Gossard Co. v. Crosly, 132 
 Iowa, 155, 109 N. W. 483, 6 L. R. A. 
 (N. S.) 1115. Per Weaver, J. 
 
 3,2. Lumley v. Wagner, 1 DeG., M. 
 & G. 604; Montague v. Flockton, L. 
 R. 16 Eq. 189; Daly v. Smith, 49 
 How. Pr. 150; Hayes v. Willio, 11 
 Abb. Pr. (N. S.) 167. Defendant, an 
 actress and singer, had made a con- 
 tract with plaintiff, a theatrical 
 manager, to appear in such operas as 
 he should produce during a certain 
 season. Defendant was distinguished 
 in her profession, and a great artistic 
 acquisition to any theater producing 
 comic operas. Plaintiff had adver- 
 tised defendant, at great expense, as 
 a member of his company. During 
 such season defendant refused to 
 perform in an opera produced by 
 plaintiff, and she, at that time, had 
 agreed to appear at a rival theater to 
 the end of the season. Plaintiff un- 
 successfully protested against this. 
 It was not possible for him to replace 
 defendant by any other actress and 
 singer of equal repute; and in con- 
 sequence ne was likely to, and in fact 
 did, sustain irreparable damage. 
 Held, that these facts were sufficient, 
 prima facie, to entitle plaintiff to an 
 injunction to restrain defendant from 
 appearing at such other theater, and 
 that as defendant, by her contract 
 with plaintiff, agreed to appear in 
 seven performances in each week, 
 which plaintiff might give, and as it 
 was not possible for her to perform 
 elsewhere without violating the con- 
 
 tract, the fact that it did not con- 
 tain a negative clause, binding her 
 not to appear elsewhere, was not 
 ground for refusing plaintiff an in- 
 junction. Duff v. Russell, 14 N. Y. 
 Supp. 134. 
 
 An actress and danseuse, having 
 an attractive specialty, which she 
 claimed that she alone could per- 
 form, entered into a contract with 
 plaintiff, the owner of a theatre, giv- 
 ing him the exclusive right to her 
 services for a certain time, but vio- 
 lated the contract by appearing at 
 other theaters during her leisure 
 time. Held, that an injunction would 
 lie to prevent such violation of the 
 contract, since plaintiff engaged her 
 as a special feature to induce people 
 to come to witness her performance 
 who would not otherwise attend his 
 theater, and her appearance at other 
 theaters would result in pecuniary in- 
 jury to him, which would be incapa- 
 ble of proof. Hoyt v. Fuller (Super. 
 N. Y.), 19 N. Y. Supp. 962. 
 
 In Butler v. Galletti, 21 How. Pr. 
 465, the court refused to enjoin a 
 danseuse from dancing elsewhere 
 than at the Broadway Music Hall, 
 because her agreement did not ex- 
 pressly bind her not to dance else- 
 where. 
 
 An injunction will not lie unless it 
 be alleged and shown that plaintiff 
 will be greatly injured by defendant's 
 refusal to sing. Mapelson v. La- 
 blache, 13 Abb. N. C. 147. 
 
 680
 
 Relating to Contracts. § 452a 
 
 of equity have enforced negative covenants, either express or im- 
 plied, where there was no legal remedy, for a breach of the contract 
 and where upon the nature of the case, the parties to the contract, 
 ready and willing to perform, have no remedy except to prevent 
 the breach of the negative covenants. 33 In a case in Illinois, how- 
 ever, it is said that while the rule in England may be as we have 
 just stated yet that the trend of the American decisions is that in 
 the absence of an express stipulation forbidding service elsewhere, 
 a court of equity will not interfere. 34 And even in applying the 
 rule that an injunction to restrain an actor from playing 
 elsewhere than for plaintiff will be denied, unless it ap- 
 pears that irreparable injury, or damages incapable of being ascer- 
 tained in an action at law, will result to plaintiff therefrom in- 
 junctions to prevent actors from performing for other parties, in 
 violation of their contracts, are limited to cases where the artistic 
 abilities of the defendant are extraordinary and pre-eminent. 30 
 Whether or not a court of equity will grant relief in an action of 
 this character is a question, the determination of which rests in 
 the sound discretion of the court and such a contract can never be 
 enforced unless the parties seeking to enforce it are specifically 
 bound by the contract, so that there are enforceable reciprocal 
 obligations which are definite. 36 So where a contract employing 
 an actor, while definite for a particular season, is indefinite as to 
 the two remaining seasons of employment, in that there is nothing 
 from which the period of employment can be ascertained, and in 
 that the employer is not absolutely required to furnish employ- 
 ment to the actor longer than he considers it to be to his advantage, 
 it is decided that there is a lack of mutuality and that a court of 
 equity will not grant a temporary injunction to restrain the actor, 
 who repudiates the contract, from entering other employment. 37 
 And in a recent case in New York it is decided that although a 
 
 33. Lawrence v. Dixey, 119 App. 
 Div. (N. Y.) 295, 104 N. Y. Supp. 
 516. Per Ingraham, J. 
 
 34. Rabinovich v. Reith, 120 111. 
 App. 409. 
 
 35. Carter v. Ferguson, 12 N. Y. 
 Supp. 580. 
 
 681 
 
 36. Lawrence v. 
 
 Dixey, 
 
 119 App. 
 
 Div. (N. Y.) 295, 
 
 104 N. 
 
 Y. Supp. 
 
 516. 
 
 
 
 37. Lawrence v. 
 
 Dixey, 
 
 119 App. 
 
 Div. (N. Y.) 295, 
 
 104 N. 
 
 Y. Supp. 
 
 516. 
 

 
 § 453 Relating to Contracts. 
 
 contract employing a singer provides that his services are " special, 
 unique and extraordinary " so that he cannot be replaced, and that 
 on a breach of the contract the employer will suffer irreparable 
 injury which cannot be ascertained in an action at law, and that 
 an injunction may issue restraining the employee from rendering 
 services to other persons, the court should not grant such injunction 
 pendente lite when the contract allows the employer to discharge 
 the employee without recourse and the recitals as to the services 
 being extraordinary are not true and it is quite probable that 
 another singer can be found to fill the place. 38 In no case can an 
 opera singer be compelled to sing by injunction. 
 
 ss 
 
 §453. Same subject; baseball players. — Where a person 
 enters into ai contract to render services as a baseball player for a 
 reasonable length of time, a court of equity, although it cannot 
 compel him to perform those services, will enjoin him from playing 
 for another person during the time covered by the contract, and it 
 is immaterial that the contract does not contain a promise not to 
 perform like services for any other person, as his express promise 
 to render the former service implies a promise not to do anything 
 which will prevent him from rendering it. 40 But an agreement 
 
 38. Dookstader v. Reed, 121 App. v. Pickett, 8 Pa. Co. Ct. 232, per 
 Div. (N. Y.) 846, 106 N. Y. Supp. Arnold, J.: "Every express promise 
 •95. to do an act embraces within its 
 
 39. Mnpleson v. DelPuente, 13 scope an implied promise not to do 
 Abb. N. C. 144; De Rivafinoli v. Cor- anything which will prevent the 
 setti, 4 Paige, 2G4. promisor from doing the act he had 
 
 While in such cases the singer, engaged to do. In the leading care 
 
 actor, or musician has been enjoined of Lnmley v. Wagner. 1 DeG., M. <fe 
 
 from appearing during the period G. (504. this was expressly ruled. Tt 
 
 named at a place and for parties dif- was there said that an engagement to 
 
 ferent from those specified in his first perform for three months at one 
 
 engagement it was never supposed theater, must necessarily exclude the 
 
 that the court could by injunction right to perform at the same time at 
 
 compel the affirmative performance another theater. This was followed 
 
 of the agreement to sing, or to act. or by the case of Montague v. Flockton, 
 
 to play. Arthur v. Oakes, 63 Fed. L. R. 16 Eq. 189, in which an actor 
 
 310, 11 C. C. A. 209, 25 L. R. A. was restrained from breaking his 
 
 414. Per Harlan, J. contract to play for one manager by 
 
 40. American Base-Ball Club, etc., playing for another. There are no 
 
 682
 
 Helatikg to Contbacts. 
 
 §433 
 
 whereby one agreed to play baseball for a club for a period of 
 time which, at the option of the club, might equal the term of the 
 
 negative words in the contract sued 
 upon in that case. There is no rea- 
 son why ball-players should be treated 
 differently from other persons when 
 they seek to evade their engagements, 
 nor why managers should be left en- 
 tirely at the mercy of their players. 
 Daly v. Smith, 49 How. Pr. 150." In 
 Philadelphia Ball Cluo v. Hallman, 
 8 Pa. Co. Ct. 57, Thayer, P. J., re- 
 viewed the decisions as follows. " The 
 earlier cases upon this subject such 
 as Kemble v. Kean, 6 Sim. 333; San- 
 quiricio v. Benedetti, 1 Barb. 315; 
 Kimberley v. Jennings, 6 Sim. 340; 
 De Rivafinoli v. Corsetti, 4 Paige, 
 264; Ilamblin v. Dinneford, 2 Edw. 
 Ch. 529, and the Pennsylvania case, 
 Ford v. Jermon, Phil a. 0, which fol- 
 lowed them, would seem to have been 
 ruled upon the theory that because 
 by their nature such contracts 
 do not admit of compulsory specific 
 performance, wliich might in the 
 sequel be altogether inellicient to ac- 
 complish that result. The doubt ex- 
 pressed by Judge Story in regard to 
 the force of this reasoning (2 Eq. 
 Jur. 7th ed. 958, note 6), has been 
 fully confirmed by the more recent 
 cases, both in England and this 
 country, and within recent years, 
 Kemble v. Kean, and all the cases 
 that followed it have been overruled 
 as well by the English tribunals as 
 by the courts of this country. Since 
 the case of Lumley v. Wagner, 1 
 DeG., M. & G. 604, in which Lord 
 Chancellor St. Leonards, one of the 
 greatest of English equity lawyers, 
 enjoined a public singer from singing 
 at the Italian opera, Covent Garden, 
 London, because she was under an 
 engagement to sing at the same 
 
 time for another manager at another 
 theater, the modern doctrine has been 
 well established that such cases, being 
 practically without redress at law 
 are proper subjects for the control 
 of chancery, and that the power to 
 interfere by the writ of injunction in 
 such cases ought to be exercised in 
 order to prevent a flagrant breach of 
 good faith for wliich the suffering 
 party would otherwise be wholly 
 without any adequate means of re- 
 dress. . . . The decision in Lum- 
 ley v. Wagner has accordingly been 
 generally followed both in England 
 and in this country: Waterman on 
 Specific Performance, § 117; Monta- 
 gue v. Floekton, L. R. 16 Eq. 189; 
 Sliff v. Cassell, 2 Jur. N. S. 348; 
 Eeehter v. Montgomery, 33 Beav. 22; 
 Webster v. Dillon, 3 Jur. N. S. 432; 
 Rolfe v. Rolfe, 15 Sim. 88; Hills v. 
 Croll, 2 Phillips, 60; Fredericks v. 
 Mayer, 13 How. Pr. 566, 1 Bosw. 227 ; 
 Hayes v. Willio, 11 Abb. Pr. (N. S.) 
 167; Daly v. Smith, 49 How. Pr. 
 150; McCaull v. Braham, 16 Fed. 37. 
 If an injunction will lie to restrain 
 a physician from breaking his con- 
 tract not to practice medicine within 
 a certain region, as in McClurg's Ap- 
 peal, 58 Pa. St. 51; Palmer v. Gra- 
 ham, 1 Parsons, 476; Reece ▼. Hen- 
 dricks, 1 Leg. Gaz. 79; Betts' Ap- 
 peal, 10 W. N. C. 431, and Paxson's 
 Appeal, 106 Pa. St. 429; if a con- 
 fectioner may be enjoined from carry- 
 ing on his trade for a certain period 
 within certain limits contrary to his 
 contract. Harkison's Appeal, 78 
 Pa. St. 196; or a manufacturer from 
 carrying on his business in a certain 
 county, Smith's Appeal, 113 Pa. St. 
 580; or a baker, as was done in this 
 
 683
 
 §454 
 
 Relating to Contracts. 
 
 player's life, and which reserves to the club the right to discharge 
 the player on ten days' notice, without cause, is not an agreement 
 enforceable by an injunction against its violation by the player. 
 It is too unfair, and wanting in mutuality. 41 And an agreement 
 by which a player consents to be reserved by a baseball club for 
 the next season does not amount to a contract for the next season 
 and therefore cannot be enforced as such against the player. 42 
 
 § 454. Same subject; acrobats. — In the application of the rulo 
 that a contract for personal service will not be enforced by injunc- 
 tion unless the service is one requiring special skill or ability equity 
 will not enjoin the breach of a contract of certain acrobats to 
 appear exclusively at complainant's theater, where it does not 
 appear that the exhibition involves special merit, skill, knowledge, 
 
 court in Eckart v. Gerlach, 12 Phila. 
 It. 530; or a blacksmith, as in Car- 
 roll v. Hicks, 10 Phila. 308; or an 
 attorney, as in Bunn v. Guy, 4 East. 
 190; or a milkman, as in Proctor v. 
 Sargent, 2 M. & G. 20; or a tailor, as 
 in Rolfe v. Rolfe, 15 Sim. 88; can 
 any good reason be assigned why an 
 actor an athlete, a singer, or a base- 
 ball player, should be exempt from 
 the application of the same remedy 
 in order to prevent an injury which 
 will not admit of compensation in 
 damages and for the redress of which 
 no other adequate remedy exists? We 
 think not." 
 
 41. Philadelphia Ball Club v. 
 Hallman, 8 Pa. Co. Ct. Rep. 57. See, 
 also, Harrisburg Base-Ball Club v. 
 Athletic Assn., 8 Pa. Co. Ct. 337. 
 
 42. A contract between defendant, 
 a base-ball player, and plaintiff, a 
 base-ball club, gave the latter the 
 right to " reserve " him for the next 
 season, on condition that he shou'd 
 not be reserved at a salary less than 
 for the current season without his 
 
 consent, and that he should be one 
 of not more than fourteen reserved. 
 The compact between tlie clubs form- 
 ing the National League and the 
 American Association gives each club 
 the right to reserve fourteen players 
 then under contract, and declares 
 such players ineligible to contract 
 with any other club. It also pro- 
 vides that no club shall contract with 
 a player for a longer period than one 
 season, and that no contract for ser- 
 vices after the current season shall 
 be made prior to October 20th. Held, 
 that defendant, though so reserved, 
 could not be enjoined from engaging 
 with another club, as the right to 
 reserve him when exercised, did not 
 amount to a contract for th^ next 
 season, but only to an agreement to 
 negotiate for a contract. Metropol- 
 itan Exhibition Co. v. Ewing. 42 Fed. 
 198, 24 Abb. N. C. 419. See, also, 
 Metropolitan Exhibition Co. v. Ward, 
 24 Abb. N. C. 393, 419, note, where 
 the injunction was maintained. 
 
 684
 
 Relating to Contracts. § 455 
 
 or ability, so that the same services could not be easily obtained 
 from others, nor be compensated in damages at law. 43 
 
 §455. Same subject; insurance agents— In support of the 
 general rule it has been decided in Georgia that unless personal. 
 services are individual and peculiar because of their special merit 
 or unique character, a negative covenant, even when express, not 
 to render tbem to others than the plaintiff will not be enforced 
 by injunction in order that the plaintiff may have the incidental 
 benefit of an affirmative covenant to serve him exclusively for a 
 specified time. Hence, where one assigned to a firm his interest 
 in a certain contract of agency for an insurance company, and in 
 the assignment covenanted to remain with the firm as special agent 
 in a named State for one year, and to give his entire time and 
 attention to the business of that company by procuring for it 
 applications for insurance, an injunction will not be granted at 
 the instance of the firm to restrain the assignor from soliciting 
 insurance or transacting business for a rival company, the assign- 
 ment containing no express covenant that he would not do so, 
 and it not appearing that he was a specially skillful, successful, or 
 expert insurance agent whose place could not be readily supplied 
 by another equally competent to attend to the business for which 
 his services had been angaged." And a life insurance agent after 
 
 43 Cort v Lassard, 18 Or. 221, 22 was an Ohio corporation, doing busi- 
 Pac 1054. See, also. Healy v. Allen, ness in that State, and not shown to 
 ■6S La Ann. 867. 869. In an action transact business in New York, while 
 to restrain defendant from working the company named was a New York 
 for a certar* firm, or for any other firm. Held, that an ^junction 
 person or corporation, as a litho- should be denied. Strobridge Litho- 
 graphic designer or lithographic graphing Co. v. Crane, 12 W. Y. 
 sketch artist, in violation of a con- Supp. 898. 
 
 tract of employment by plaintiff, it 44. Burney v. Ryle 91 Ga. 701, 
 
 appeared thac much of the work for 17 S. E. 986, per Lumpkin, £ 
 
 which he was employed by plaintiff " It does not appear from the 
 
 was purely mechanical, and that allegations of the petition or 
 
 there was nothing uncommon in his from the evidence that Burney, 
 
 qualifications. There was no proof as an insurance agent was m any 
 
 that his place could not be ade- way remarkable or that he had 
 
 quately supplied, and none of dam- shown himself to be such a specially 
 
 age or actual injury, and plaintiff skillful, successful, or expert person 
 
 685
 
 §455 
 
 Relating to Contiiacts. 
 
 his contract of employment baa terminated, will not be enjoined 
 from persuading, by proper and lawful moans, policy holders iu 
 the company by which he was employed to transfer their insurance 
 
 in this business that it would be dif- 
 ficult or impracticable to supply his 
 place by another agent equally com- 
 petent to render such services as his 
 contract required of him. For this 
 reason the injunction, in our opinion, 
 ahould have been denied. No doubt 
 there are cases in which a court of 
 equity will enjoin the breach of a 
 contract, and compel one to abstain 
 from performing personal services 
 for other persons which he was 
 bound to render exclusively to the 
 plaintiff. ' But the services to be per- 
 formed must be individual and pe- 
 culiar because of their special merit 
 or unique character, for otherwise 
 the remedy at law would be adequate. 
 But where the services involve the ex- 
 ercise of powers of mind, as of writ- 
 ers or performers, which are pe- 
 culiarly and largely intellectual, they 
 may form the class in which the court 
 would interfere upon the ground that 
 they are individual and peculiar. 
 Damages for a breach of such con- 
 tracts are not only difficult to ascer- 
 tain, but cannot, with any certainty, 
 be estimated; nor could the plaintiff 
 procure, by means of any damages, 
 the same services in the labor market 
 as in case of an ordinary contract of 
 employment between an artisan, a 
 laborer, or a clerk and their em- 
 ployer.' 2 Beach, Mod. Eq. Jur., § 
 772. The same doctrine is laid down 
 in 3 Pom. Eq. Jur., § 1343. There is 
 nothing in the record before us to 
 authorize the conclusion that Burney 
 had extraordinary, or even unusual, 
 qualifications for the business which 
 he undertook to transact, and there- 
 fore, under the rule laid down by the 
 
 eminent text writers from whom the 
 above quotations are made, the pre** 
 ent case is not a proper one for in 
 junction. There has been consider- 
 able discussion of the question as to 
 ■whether or not an injunction would 
 be granted in any case of this kind 
 unless the stipulations not to render 
 services to others were in form ex- 
 pressly negative. In the case at bar 
 there was in the contract no express 
 negative covenant by Burney not to 
 render services to others than the 
 plaintiffs. In Chemical Co. v. Hard- 
 man (1891), 2 Ch. Div. 416, a recent 
 and thoroughly well-considered case, 
 it was held that, in the absence of 
 any negative stipulation in that be- 
 half, the plaintiffs were not entitled 
 to an injunction to restrain the 
 manager of certain chemical works 
 (who had agreed to give to their busi- 
 ness, during a specified term, the 
 whole of his time) from giving, dur- 
 ing the term, a part of his time to 
 a rival company. To those who may 
 wish to further investigate this ques- 
 tion, the opinion of Kekewich, J., 
 from whoso judgment an appeal was 
 taken, and whose decision was re- 
 versed, and also the opinions of Lind- 
 ley, L. J., and Kay, L. J., will be 
 found decidedly interesting. And in 
 the same connection it will be profit- 
 able to examine Kerr, Inj., 445 et 
 seq.; Singer, etc.,. Co. v. Union, etc., 
 Co., 1 Holmes, 253, and McCaull v. 
 Braham, 16 Fed. 37. The elaborate 
 and well-prepared note of Mr. Abbott 
 appended to the case last cited is a 
 valuable contribution to the law per- 
 taining to this subject." 
 
 6S6
 
 Relating to Contracts. § 456 
 
 to another company where no confidence or trust reposed in him 
 is violated by such conduct and he is not prohibited from so doing 
 by his former contract. 45 
 
 §456. Same subject; author and dramatist.— Where the 
 author of a book enters into a contract with a playwright to make 
 a dramatization of it, which is to be produced for their joint 
 benefit, the rights of the playwright under the agreement may be 
 protected by an injunction restraining the author and another 
 adapter and a manager from producing a theatrical performance 
 of another adaptation of the book, made by the other adapter; and 
 the fact that the contract does not provide for all the details, nor 
 fix a specific time for performance, does not render it so indefinite 
 and uncertain as to prevent its enforcement in equity. In such 
 a ca«e the plaintiff's equity, which entitles him to injunctive relief, 
 is that there is no adequate remedy at law, as it would be impos- 
 sible to ascertain what sum he should have for a breach of contract 
 by defendant, there being no basis for estimating what profits 
 would accrue from the performance of the plaintiff's dramatiza- 
 tion. 46 And one who undertakes to produce a play written by 
 another under an agreement providing that no changes or altera- 
 
 i 
 
 45 Stein v. National Life Assn., sale of his patent medicine, at forty 
 105 Ga. 821, 32 S. E. 615, 46 L. R. per cent, discount, was enjoined 
 A 150 from selling to any others. In Glass- 
 
 46 House v. Clemens, 24 Abb. N. ington v. Thwaites, 1 Sim. & Stu. 
 C 381, 9 N. Y. Supp. 484. See, also, 124, plaintiff, who was a partner 
 Singer Sewing Machine Co. v. Union with defendants in the publication of 
 Button Hole Co.. 1 Holmes. 253. In the Morning Herald sued to enjoin 
 DeMattos v. Gibson, 4 DeGex & J. the use by defendants for The Eng- 
 276, the use of a ship contrary to the flish Chronicle in which they alone 
 charter agreement was enjoined; in were interested, of the effects of the 
 Hooper v Brodrick. 11 Simons, 47, other co-partnership, and the court 
 thouU the court could not compel said: "The principle of equity 
 defendant to keep an inn on certain ,would not permit that parties bound 
 demised premises, as he had agreed to each other by express or implied 
 to do it enjoined him from doing .contract to promote a common under- 
 anything to prevent such use; in taking, should engage in any other 
 Dietrichsen v. Cabburn. 2 Phillips.- concern which necessarily gave them 
 52. defendant, who had appointed a direct interest ^adverse to the for- 
 plaintiff his wholesale agent for the <mer undertaking." 
 
 687
 
 §§ 456a, 457 Relating to Contracts. 
 
 tions in the play or additions thereto shall be made without the 
 consent of the author, will bo restrained by injunction from mak- 
 ing unauthorized changes and modifications in the text and 
 structural arrangement thereof. 4 ' 
 
 § 456a. Partners. — While a court of equity has not the power 
 to make persons who will not concur carry on a business jointly, 
 for their common advantage, and has not the power to compel 
 persons who have entered into a partnership agreement, to act 
 together, as partners, yet it may enjoin one of the partners from 
 entering into business with other persons during the partnership 
 term, in violation of the agreement and the other partner's rights. 48 
 
 § 457. Enforcing negative covenants ; implication of. — The 
 former general rule was that where an affirmative engagement of 
 personal service, could not be enforced by a decree for specific 
 performance, a court of equity would not enjoin the breach of a 
 collateral negative covenant by the obligee not to serve elsewhere 
 during the period of the affirmative engagement. 49 But, in later 
 times, such negative covenants have been enforced by injunction, 
 where the complainant shows sufficient equities. 50 And in some 
 
 47. Royle v. Dillingham. 53 Misc. "It is no doubt the rale that 
 R. (N. Y.) 383, 104 N. Y. Supp. in respect to purely negative cove- 
 783. Compare Lowenfield v. Curtis, nants annexed to or contained in 
 72 Fed. 105. contracts or leases, courts of equity 
 
 48. England v. Curling, 8 Beav. frequently interfere by injunction 
 229 and indirectly enforce specific per- 
 
 49. Kemble v. Kean, 6 Sim. 333; formance of such negative covenants 
 Kimberly v. Jennings, 6 Sim. 340; by prohibiting their breach; and it 
 Hamblin v. Dinneford, 2 Edw. Ch. is equally well settled that where 
 529; DePol v. Sohlke, 7 Robt. 280. there is such an express negative 
 See Morris v. Coleman, 18 Ves. 437, covenant, courts of equity will enter- 
 to the effect that a negative cove- tain jurisdiction by injunction, al- 
 nant not to serve might be enforced though the same will occasion no 
 by injunction where the other facts substantial injury, or even though 
 were sufficient to give equitable juris- the injury, if any, be reviewable at 
 diction of the matter. law." Carlson v. Koerner, 226 111. 
 
 50. Lumley v. Wagner, 1 DeG., M. 15, 19, 80 N. E. 562. Per Wilkin, J. 
 
 & G. 604. See, also, Dietrichsen v. "There is a class of cases 
 
 Cabburn, 2 Phillips, 52; Rolfe v. where a defendant may be enjoined 
 
 Rolfe, 15 Sim. 88. from violating the negative part of 
 
 688
 
 Relating to Contracts. § 458 
 
 cases the courts have gone further and held that the negative cove- 
 nant was to be implied from the affirmative engagement; as an 
 actor, for example, who has agreed to act at a particular theater, 
 thereby agrees not to act at the same time at another theater as 
 plainly as if a negative clause were inserted in his engagement, 51 
 When a contract contains both affirmative and negative covenants, 
 breach of the negative covenants may be enjoined although specific 
 performance of the negative covenants cannot be decreed. 52 It is 
 also said that the remedy by injunction to prevent the violation of 
 negative covenants does not depend upon the subject matter of the 
 contract but it may relate to any equitable interest in or charge 
 upon property. 53 And the right to an injunction for the enforce- 
 ment of negative covenants in contracts is independent of the 
 question as to whether an action at law will lie or not. 54 
 
 § 458. Enforcing trusts by injunctions. — Trustees of a re- 
 ligious society may be restrained from diverting an endowment 
 from the purpose for which it was given. 55 Contributors to an 
 educational fund, on condition that an institution should be per- 
 manently located at a specified place, may have an injunction to 
 prevent its removal from such place. 56 In an action by school 
 trustees to enjoin church trustees from holding services in the 
 room above while the school was in session, there was a conflict 
 
 an agreement when neither defend- covenant is fairly implied where an 
 ant nor the plaintiff can have spe- actor's prior engagement requires him 
 cific performance of the affirmative to give seven performances in each 
 side or part of the agreement. The week. Duff v. Russell, 14 N. Y. 134. 
 answer of equity in such cases to the 52. General Electric Co. v. West- 
 want of mutuality in remedy is a inghouse Electric Co., 151 Fed. 664. 
 conditional decree for performance, 5,3. Southern Fire Brick Co. v. 
 or enjoining a violation of the cove- Garden City Sand Co., 223 111. 616, 
 nant — one good so long as plaintiff 79 N. E. 313. 
 
 performs, and self-dissolving upon 54. Southern Fire Brick Co. v. 
 
 his failure to perform." General Garden City Sand Co., 223 111. 616, 
 
 Electric Co. v. Westinghouse Electric 79 N. E. 313; Diamond Match Co. v. 
 
 Co., 151 Fed. 664. Per Ray, J. Roeher, 106 N. Y. 473, 13 N. E. 419. 
 
 51. Montague v. Flockton, L. R. 55. Attorney-General v. Welsh, 4 
 
 16 Eq. 189; Fechter v. Montgomery, Hare, 572. See section 57, ante. 
 
 33 Beav. 22; Webster v. Dillon, 3 56. Hascall v. Madison Univer- 
 
 Jur. (N. S.) 432. Such a negative sity, 8 Barb. 174. 
 
 689 
 44
 
 & 450 Relating to Contracts. 
 
 of evidence as to an oral agreement by defendants' that there 
 should be no services in the church during school hours, and it 
 was held that a judgment for defendants should not bo disturbed, 
 as it did not appear that the school was disturbed by the preaching 
 and devotions up stairs. 57 
 
 § 459. Usurious contracts. — Where a borrower of money agrees 
 to pay usurious interest, and thereafter pays the principal of the 
 lease with legal interest, he may have an injunction to prevent the 
 collection of usurious interest. 58 And the maker of a usurious note 
 may have an injunction to prevent it from passing into the hands 
 of an innocent holder, who would not be bound by the equities 
 attaching to it. 59 An injunction will not ordinarily be granted 
 against proceedings to enforce a usurious contract, unless the 
 complainant pay or tender the amount really due. 60 But after 
 such an injunction has been granted, it will not be dissolved if 
 the complainant tenders the amount which he owes, where the 
 defendant has not, by his answer, raised the objection that the 
 tender was not made before suit. 61 A preliminary injunction to 
 prevent the enforcement of a deed of trust, on the ground that it 
 was given to secure a usurious contract, will be continued only 
 until the question of usury can be determined ; 62 and only as to that 
 portion of the contract which is determined by the verdict at law, 
 to have been usurious. 63 
 
 57. Miller v. Nelson (Ky.), 21 S. 63. Bell v. Calhoun, 8 Gratt. 22; 
 W. 875. Rankin v. Rankin, 1 Gratt. 153. The 
 
 58. Waite v. Ballou, 19 Kan. 601. Virginia Code of 1873 provides that 
 
 59. Wilhelmson v. Bentley, 25 " upon a bill requiring no discovery 
 Neb. 473. of defendant, hut praying an injunc- 
 
 60. Fanning v. Dunham, 5 Johns. tion to prevent the sale of property 
 Ch. 122; Rogers v. Rathbun, 1 Johns. conveyed to secure the repayment of 
 Ch. 367; Tupper v. Powell, 1 Johns. money or other thing borrowed at 
 Oh. 439; Turpin v. Povall, 8 Leigh, usurious interest, the court shall 
 93. cause an issue to be made and tried 
 
 61. Morgan v. Schermerhorn, 1 at its bar by a jury, whether or not 
 Paic;e, 544. the transaction be usurious. If the 
 
 62. Marks v. Morris, 2 Munf. jury find the transaction usurious, 
 (Va.) 407; Fitzhugh v. Gordon, 2 then the relief shall be given as if 
 Leigh, 626. the party claiming under the convey- 
 
 690
 
 Kelating to Contracts. § 460 
 
 § 460. Gaming contracts. — A jockey club induced the owner 
 of a mare in foal to enter the colt for a race known as the 
 " Futurity," to take place at a specified date. When the colt was 
 a vear old, it was sold as eligible to the race, the club's rules 
 allowing such sales. The stakes were made up of fees Irom such 
 entries and a purse contributed by the club. The colt was prop- 
 erly entered, and the purchaser offered to pay the fee required, 
 and to comply with all conditions precedent. It was held that a 
 mandatory injunction would lie to compel the club to permit the 
 eolt to enter the race, as by force of statute the contract in ques- 
 tion had been relieved from any taint of illegality as a gaming 
 contract, and plaintiff had no adequate legal remedy. 64 An in- 
 junction will not be granted to prevent the collection of a mortgage 
 or judgment given to cover past and future gambling transactions 
 in wheat and pork, but in such a case a court of equity will leave 
 the plaintiff, who has to allege his own iniquity, where it finds 
 him, to recover himself as best he may. 65 Where- in an action at 
 law, on a promise founded on a gaming consideration, the defend- 
 ant is surprised at the trial, he may have an injunction against 
 the judgment, though he made no effort to obtain a new trial in 
 the law court 66 On a bill to enjoin a judgment on the ground 
 
 ance had resorted to the court to it by a hill in equity; or hefore or 
 
 make his claim available." See after action brought, file his bill in 
 
 Meem v. Dulaney, 88 Va. 674, 14 equity to compel the surrender of 
 
 S. E. 363; Edmunds v. Bruce, 88 any security founded on such unlaw - 
 
 Va. 1007, 14 S. E. 840. ful and void consideration. Woodson 
 
 64. Corrigan v. Coney Island v. Barrett, 2 Hen. & M. 80; Skip- 
 Jockey Club, 15 N. Y. Supp. 705. with v. Strother, 3 Rand. (Va.) 214; 
 See Jordan v. Kent, 44 How. Pr. 206 ; Andrews v. Berry, 3 Anst. 634; 
 Costello v. Curtis, 13 N. Y. W. Dig. Fleetwood v. Jansen, 2 Atk. 467; 
 20; Harris v. White, 81 N. Y. 532. Woodroffe v. Farnham, 2 Vern. 291. 
 
 65. Smith v. Kammerer, 152 Pa. But see Giddens v. Lea, 3 Humph. 
 St. 98, 25 Atl. 165. See Sherk v. (Tenn.) 133, where it was held that 
 Endress, 3 Watts & S. 255; Hershey a party sued on a note given for a 
 v. Weiting, 50 Pa. St. 240; Hippie gaming consideration wlio makes no 
 v. Rice, 28 Pa. St. 406. defense of the void consideration, and 
 
 66. White v. Washington, 5 Gratt. does not explain the reason of his 
 645, per Baldwin, J.: "He may suf- laches, can have no injunctive relief 
 fer judgment to go against him at against the judgment." 
 
 law, and restrain proceedings upon 
 
 601
 
 § 460 Relating to Contracts. 
 
 that the debt on which it was founded, was for money won at 
 cards, it being doubtful on the evidence whether such was the 
 consideration ; and if it was, whether the plaintiff in the debt, 
 who was a transferee of the debt, had not been induced to take 
 the transfer by the misrepresentation of the debtor, that the con- 
 sideration of the debt was lawful, it was held that the preliminary 
 injunction should continue, and an issue be directed to determine 
 these doubtful facts. 67 
 
 67. Nelson v. Armstrong, 5 Gratt. 354. 
 
 692
 
 Contracts in Restraint of Trade. § 461 
 
 CHAPTER XIV. 
 
 Contracts in Restraint of Trade. 
 
 Section 461. General considerations of policy. 
 461a. Object of anti-trust statutes. 
 
 462. Reasonableness and not motive the test of validity. 
 462a. As between employer and employee— Generally. 
 
 463. The modern doctrine. 
 
 463a. Decisions— Alabama— California. 
 463b. Decisions in Illinois— Indiana— Maine. 
 
 464. Decisions — Massachusetts. 
 
 465. Massachusetts decisions continued. 
 
 466. Decisions — Michigan. 
 
 467. Decisions— New Jersey. 
 
 468. Same subject. 
 
 468a. Decisions — New York. 
 
 468b. Decisions— Pennsylvania— Texas. 
 
 469. Federal rule. 
 
 469a. Decisions — England — Canada. 
 
 470. On sale of good will. 
 
 471. As to unique manufactures. 
 
 472. Devisible contracts restraining trade. 
 472a. Adequacy of consideration not material. 
 
 473. Parol restrictive agreements. 
 473a. What constitutes violation. 
 
 473b. Agreements— Dissolution of partnership. 
 
 473c. Injunction against third party. 
 
 473d. Agreement not to use name. 
 
 473e. Effect of provision for liquidated damages. 
 
 47 3f. Power of court to award damages. 
 
 473g. Time of bringing action to enjoin. 
 
 473h. Sufficiency of complaint. 
 
 Section 461. General considerations of policy.— A contract by 
 which a person binds himself not to employ his talents, his in- 
 dustry or his capital in any business or enterprise whatsoever, 
 will not be enforced, because no good reason can exist for any one 
 imposing such a restraint upon himself. 1 Such a contract is opposed 
 
 1. Homer v. Ashford, 3 Bing. 322, employment, see sections 452-456, 
 326. As to agreements not to accept ante. 
 
 603
 
 §§ 461a, 462 Contracts ik Kksteaint of Trajje. 
 
 to that public policy which will not permit any one to restrain 
 a person from doing what the public welfare and his own interest 
 require he should do. 2 In the United States, too, the law is settled 
 that a contract in restraint of labor which seeks to prevent one of 
 the contracting parties from exercising his. skill or effort gen- 
 erally, without limitation as to place or time, or which attempts 
 to put a restraint upon his right to labor or to exercise his skill 
 greater than is necessary for the fair protection of the other party 
 to the contract, will not be enforced by a court of equity. 3 Where, 
 however, a contract in restraint of trade is sufficiently limited aa 
 to time and place, as not to be against public policy, and is free 
 from fraud, it is enforceable. 4 And the fact that there is no limit 
 as to the length of time for which the seller must refrain from 
 carrying on the business in the prohibited territory does not render 
 the agreement invalid. 5 
 
 § 461a. Object of anti-trust statutes. — The object of the 
 Federal and State statutes to prevent the formation of trusts or 
 conspiracies in restraint of trade is to prohibit the formation of 
 trusts and combinations and remove all obstructions in restraint of 
 trade and free competition but not to hinder or prevent contract* 
 on the part of corporations or private individuals made to foster 
 or increase trade or business. 6 
 
 § 462. Reasonableness and not motive the test of validity. — 
 
 The motive of the obligee is not the test of the validity of a con- 
 tract or covenant in restraint of trade. A party may legally pur- 
 chase the trade and business of another for the very purpose of 
 preventing competition, and its validity, if supported by a con- 
 sideration, ordinarily depends upon its reasonableness as between 
 ihe parties. So where one sold his factory in New York, for 
 making friction matches, and the good will of the business, and 
 
 2. Leather Cloth Co. v. Lorsont, L. 5. Up River Ice Co. v. DeuJer, 114 
 R. 9 Eq. 345, 354. Mich. 296, 72 N. W. 157. 
 
 3. Sternberg v. O'Brien, 48 N. J. 6. Southern Fire Brick Co. v. Gar- 
 Eq. 370, 372, 22 Atl. 348. den City Sand Co.. 223 III. 616, 79 
 
 4. Eisel v. Hayes, 141 Ind. 41, 40 N. E. 313. 
 N. E. 119. 
 
 694
 
 Contracts in Restraint of Trade. § 462a 
 
 the bill of sale contained a covenant that he would not " at any 
 time within ninety-nine years engage in such manufacture or sale, 
 except in the service of the purchasing company, within any of 
 the States or Territories except Nevada and Montana," it was 
 held that the covenant in restraint of trade was not so general as 
 to be invalid, and that the purchaser was entitled to an injunction 
 to prevent its breach. 7 It is not enough that the restraint sought 
 to be imposed be partial only, it must also be reasonable, and it 
 is not reasonable to impose a restraint upon one party larger than 
 is necessary for the protection of the other. 8 
 
 § 462a. As between employer and employee; generally — A 
 contract in restraint of trade will be the more readily enforced by 
 injunction against an employee who, because of his employment, 
 has had Ms employers trade secrets and customers' names im- 
 parted to him. Thus a covenant, in consideration of employment 
 as a salesman for a soap factory, not to make known any of the 
 secrets ho may receive, nor within the city of New York engage 
 in the plaintiff's business for the period of two years after leaving 
 his employment, may be enforced by injunction. 9 And the viola- 
 
 7. Diamond Match Co. v. Roeber, It is limited as to space, since it ex- 
 106 N. Y. 473, 482, 13 N. E. 419, per cepts Nevada and Montana from its 
 Andrews, J.: "The tendency of re- operation." In Tode v. Gross, 127 
 cent adjudications is marked in the N. Y. 480, 28 N. E. 469, a covenant 
 direction of relaxing the rigor of the by a seller of a cheese factory and 
 doctrine that all contracts in general of the good will, custom, and trade- 
 restraint of trade are void, irrespec- marks belonging to the business, not; 
 tive of special circumstance?. In- to communicate the secret of manu- 
 deed, it has of late been denied that facture to any one else, and not af- 
 a hard and fast rule of that kind has ter a certain date to manufacture or 
 ever been the law in England. Ron- sell the said cheese, or use the trade 
 sillon v. Rousillon, L. R. 14 Ch. D. marks, was held to be valid. 
 351. . . . The covenant in the 8. Brewer v. Marshall, 19 N. J. 
 present case is partial and not gen- Eq. 537, 547; Mandeville v. Harman, 
 *ral. It is practically unlimited as 42 N. J. Eq. 185, 7 Atl. 37; Horner 
 to time, but this under the authori- v. Graves, 7 Bing. 735, 743; Ross v. 
 ties is not an objection, if the con- Sadgbeer, 21 Wend. (N. Y.) 166. 
 tract is otherwise good. Ward v. 9. Stanley v. Pollard, 55 N. Y. St, 
 Byrne, 5 M. & W. 548; Mumford v. Rep. 157. 
 Gething, 7 C. B. (N. C.) 305, 317. 
 
 695
 
 § 463 Contracts in Restraint of Trade 
 
 lion of an agreement by a servant or employee with his employer 
 not to engage, directly or indirectly, within a prescribed period 
 after the termination of the employment, in business within a 
 certain territory in competition with such employer, may be re- 
 strained by injunction, although his services were neither unique, 
 special or extraordinary and although a certain sum of money 
 was deposited by the defendant with his employer as liquidated 
 damages- for a breach. 10 And a covenant in a contract of hiring 
 whereby the employee engages not to solicit orders from the cus- 
 tomers of hi* employer for a fixed term after leaving his employ- 
 ment is entirely independent of a mutual agreement to give one 
 week's notice in case either party wishes to terminate; the relation, 
 and the soliciting of customers will be enjoined pendente lite even 
 though the employee was discharged without notice. 11 Again, 
 though there may be slight evidence that the complainant has 
 suffered or will suffer great or irreparable injury, yet where it 
 appears that there has been a plain and wilful violation by the 
 defendant of the covenants contained in his agreement it is held 
 that it requires but slight evidence of injury to justify the court 
 in restraining such acts, it being impossible to calculate what may 
 be the result of such action. 12 
 
 § 463. The modern doctrine. — The modern tendency is to 
 enforce general as well as partial covenants in restraint of trade, 
 if co-extensive only with the interest to be protected, and the 
 benefit meant to be conferred, the modern consideration being 
 that a man shall be allowed to sell the good will of his business, 
 and the fruits of his industry upon the best terms he can obtain. 13 
 
 10. Reynolds Co. v. Dreyer, 12 agreeing not to engage in a similar 
 Misc. R. (N. Y.) 368, 33 N. Y. Supp. business in a certain locality. 
 
 649. 13. Diamond Match Co. v. Roe- 
 
 11. Mutual Milk & C. Co. v. Heldt, ber, 106 N. Y. 473, 482, 13 N. E. 419; 
 120 App. Div. (N. Y.) 795, 105 N. Morse Co. v. Morse, 103 Mass. 73; 
 Y. Supp. 661. Leather Cloth Co. v. Lorsont, L. R. 
 
 12. Davies v. Racer, 72 Hun (N. 9 Eq. 345; Collins v. Locke, L. R. 4 
 Y.), 43, 25 N. Y. Supp. 293. In this App. Cas. 674. In Whittaker v. 
 case the agreement was between a Howe, 3 Beav. 383, a contract made 
 clerk and his employer, the former by a solicitor not to practice in any 
 
 696
 
 Contracts in Restraint of Trade. 
 
 §463 
 
 This principle is illustrated and sustained by the decisions referred 
 to in the following sections. 14 
 
 part of Great Britain, was held 
 valid. In Rousillon v. Rousillon, L. 
 R. 14 Ch. D. 351, a general contract 
 not to engage in the sale of cham- 
 pagne without limit as to space, 
 was enforced as being under the cir- 
 cumstances a reasonable contract. In 
 Jones v. Lees, 1 Hurl. & N. 189, a 
 covenant by the defendant, a licensee 
 under a patent that he would not, 
 during the license, make or sell any 
 slubbing machines without the in- 
 vention of the plaintiff applied to 
 them, was held valid. Bramwell, J., 
 said: "It is objected that the re- 
 straint extends to all England, but 
 so does the privilege." In Ore- 
 gon Steam Co. v. Winsor, 20 
 Wall. 64, 22 L. Ed. 315, the court 
 enforced a covenant by the defend- 
 ant, made on the purchase of a 
 steamship, that it should not be run 
 or employed in the freight or passen- 
 ger business, upon any waters in the 
 State of California, for the period of 
 ten years. " If," said Sir George Jes- 
 sel, in Printing, etc., Company v. 
 Sampson, L. R. 19 Eq. 462, "there 
 is one thing more than any other 
 which public policy requires, it is 
 that men of full age and competent 
 understanding shall have the utmost 
 liberty of contracting, and that con- 
 tracts, when entered into freely, shall 
 be held good and shall be enforced 
 by courts of justice." In Mogul 
 Steamship Co. v. McGregor, 21 Q. B. 
 D. 544, certain shipowners engaged 
 in the carrying trade between Lon- 
 don and China, had formed an asso- 
 ciation for the purpose of keeping 
 up the rate of freights in the tea 
 trade, and securing that trade to 
 themselves. They accomplished this 
 
 purpose by allowing a rebate of five 
 per cent, on all freights paid by ship- 
 pers who shipped in their vessels 
 only, and thus partially or entirely 
 excluded the plaintiffs, who were 
 competing shipowners, from the tea 
 carrying trade. The latter brought 
 suit for an injunction and damages, 
 but notwithstanding the obvious re- 
 striction upon free competition, Lord 
 Coleridge held that the association 
 was not an unlawful combination in 
 restraint of trade, and gave judg- 
 ment for the defendants. This deci- 
 sion was rendered in 1S88. It was 
 sustained on appeal (23 Q. B. D. 
 598), and finally affirmed by the 
 House of Lords (App. Cas. 1892, p. 
 25). In Perkins v. Lyman, 9 Mass. 
 522, the Supreme Judicial Court of 
 Massachusetts held, in 1813, that a 
 contract by a merchant not to be in- 
 terested in any voyage to the north- 
 west coast of America was not in- 
 valid as in restraint of trade. In 
 Diamond Match Co. v. Roeber, 106 
 N. Y. 473, 13 N. E. 419, a contract 
 of a match manufacturer never to 
 manufacture or sell any friction 
 matches in the District of Columbia, 
 or in any part of the United States 
 except Idaho and Montana, was sus- 
 tained and enforced. In Navigation 
 Co. v. Winsor, 20 Wall. 64, 22 
 L. Ed. 315, decided in 1873, 
 a contract between two steam 
 navigation companies engaged in 
 the business of transportation on 
 the rivers, bays and waters of Cali- 
 fornia, and on the Columbia river 
 and its tributaries, respectively, was 
 declared by the Supreme Court not 
 to be in restraint of trade, although 
 it prohibited the use of a certain 
 
 GOT
 
 §§ 463a, 463b Contracts in Restraint of Trade. 
 
 § 463a. Decisions in Alabama; California. — In Alabama a 
 physician who sells his practice and agrees as a part of the con- 
 tract of sale that he will not practice in the same city for a certain 
 period of time, will be enjoined from violating his agreement. 15 
 Under the California Code, every contract in restraint of trade 
 is void, except that one who has sold the good will of a business 
 may agree not to carry on a similar business within a specified 
 county or town; and on dissolution of a partnership, a partner 
 may agree not to carry on a similar business in a town or city 
 where the partnership was located. 10 
 
 § 463b. Decisions in Illinois; Indiana; Maine. — In Illinois 
 contracts in restraint of trade where the limitation as to territory 
 
 steamer in the waters of California 
 for 10 years. And in 1890 the Su- 
 preme Court of New Hampshire, in 
 an exhaustive and persuasve opinion, 
 held that contracts by which a rail- 
 road corporation leased its road and 
 rolling stock to a competitor for 
 many years were not necessarily 
 against public policy or void at com- 
 mon law, when the purpose of the 
 contracts and combinations did not 
 appear to be to raise the rate of 
 transportation above the standard of 
 fair compensation, or to violate any 
 duty owing to the public by non- 
 competing companies. Manchester & 
 L. R. R. Co. v. Concord R. Co., 66 
 N. H. 100, 20 Atl. 383. If further 
 authority is wanted for the proposi- 
 tion that it is not the existence of 
 the restriction of competition, but 
 the reasonableness of that restric- 
 tion, that is the test of the validity 
 of contracts that are claimed to be 
 in restraint of trade, it will be found 
 in Fowle v. Park, 131 U. S. 88, 97 
 9 Sup. Ct. 658, 33 L. Ed. 67; Gibbs 
 v. Gas. Co., 130 U. S. 396, 9 Sup. 
 Ct. 553, 32 L. Ed. 979; In re 
 
 Greene, 52 Fed. 104, 118; Hor- 
 ner v. Graves, 7 Bing. 735, 743; 
 Hubbard v. Miller, 27 Mich. 15, 19; 
 Rousillon v. Rousillon, 14 Ch. Div. 
 351, 363; Leather Cloth Co. v. Lor- 
 sont, L. R. 9 Eq. 345, 354; Wickens 
 v. Evans, 3 Younge & J. 318; Ontario 
 Salt Co. v. Merchants Salt Co., 18 
 Grant Ch. 540; Mallan v. May, 11 
 Moes. & W. 652, 657; Whittaker v. 
 Howe, 3 Beav. 383; Kellogg v. Lar- 
 kin, 3 Pin. 123, 150; Beal v. Chase, 
 31 Mich. 490; Skrainka v. Schar- 
 ringhausen, 8 Mo. App. 522, 525; 
 Wiggins Ferry Co. v. Chicago & A. 
 R. Co., 73 Mo. 389; Gloucester Isin- 
 glass Co. v. Russia Cement Co., 154 
 Mass. 92, 94, 27 N. E. 1005; Ther- 
 mometer Co. v. Pool, 51 Hun, 157, 
 163, 4 N. Y. Supp. 861; Association 
 v. Walsh, 2 Daly, 1 ; Hodge v. Sloan, 
 107 N. Y. 244, 17 N. E. 335; Brown 
 v. Rounsavell, 78 111. 589; Jones v. 
 Clifford, 5 Fla. 510, 515. 
 
 14. See §§ 464-470 herein. 
 
 15. McCurry v. Gibson, 108 Ala. 
 451, 18 So. 806. 
 
 16. Vulcan Powder Co. v. Hercule* 
 Powder Co., 96 Cal. 510, 31 Pac. 581. 
 
 698
 
 Contracts in Restraint of Trade. § 464: 
 
 is reasonable and there exists a legal consideration for the restraint; 
 are valid and enforceable in equity and in such cases relief by 
 injunction is customary and proper. 17 So an agreement by a party 
 not to operate any other fire clay grinding plant on any land owned 
 or controlled by him or to sell fire clay to any other person during 
 the time of the contract is a direct negative covenant, and while 
 a court of equity might not compel him to mine and sell the 
 product to complainants in conformity with his agreement yet it 
 has jurisdiction to prevent him from selling to other parties. 18 In 
 Indiana one who enters into a valid contract not to engage in a 
 certain business may be enjoined from violating his contract with- 
 out regard to his solvency where there is no provision as to liqui- 
 dated damages in case of a breach. 19 In Maine one who enters 
 into such a contract may be enjoined from acting as a clerk or 
 agent of one engaged in the same business. 20 
 
 § 464. Decisions ; Massachusetts. — In this State in a. contract 
 of sale of a business and its good will, there is held to be an im- 
 plied covenant that the vendor will not interfere with the enjoy- 
 ment of what he has sold, and if he does, it is decided, that such, 
 interference may be restrained by injunction. 21 And it has been 
 held in the same State, that a covenant made by the patentee of a 
 process of manufacture in a business not local in its character, 
 for the purpose of selling the patent to better advantage and as a 
 part of transaction of sale, and for one and the same consideration 
 received by him for the patent, to use his< best efforts to invent 
 improvements in the process and to transfer them to the buyer, to 
 do no act which may injure the buyer or the business, and " at 
 no time to aid, assist or encourage in amy manner any competition 
 against the same " is not void as in restraint of trade, and that 
 the covenantor may be enjoined from violating it. 22 But in 
 
 17. Ryan v. Hamilton, 205 111. 20. Emery v. Bradley, 88 Me. 357, 
 191, 68 N. E. 781. Per Ricks, J. 34 Atl. 167. 
 
 18. Southern Fire Briek Co. v. 21. Dwight v. Hamilton, 113 Masa. 
 Garden City Land Co., 223 111. 616 ; 175. 
 
 79 N. E. 313. 22. Morse Twist Drill Co. v. 
 
 19. O'Neal v. Hines, 145 Ind. 32, Morse, 103 Mass. 73, per Chapman. 
 43 N. K 946. C. J.; "The language of the contract 
 
 699
 
 §464 
 
 Contracts in Restraint of Trade. 
 
 another case in this State it is decided that a stipulation by a 
 manufacturer of fire alarm and telegraph apparatus, on a sale of 
 all his machinery, stock, letters patent, and inventions, that he 
 will not for ten years engage in the manufacture and sale of such 
 apparatus, or enter into competition with the purchaser, either 
 directly or indirectly, while valid in so far as the patents and in- 
 ventions agreed to be sold are concerned, is void, as against public 
 policy, in so far as it prohibits the sieller from engaging in the 
 manufacture and sale of such apparatus under other patents, or 
 under no patents at all, since the prohibition is not restricted as 
 to place, and not necessary to the purchaser's enjoyment of the 
 patents and inventions which he had purchased.^ 
 
 implies that when the plaintiff 
 joined the defendant in his new busi- 
 ness they had confidence in his me- 
 chanical skill and ingenuity, and in- 
 tended to avail themselves of it for 
 the benefit of the business in which 
 he had induced them to embark; and 
 that it was a material part of the 
 consideration for which they paid him 
 bo considerable a sum and invested 
 their capital. It was not in restraint 
 of trade nor contrary to public policy 
 that the defendant should contract to 
 render to plaintiffs his exclusive ser- 
 vices in this respect. And though the 
 defendant did not technically become 
 a partner with plaintiffs, yet he be- 
 came the associate of the other stock- 
 holders in the business, he himself in- 
 ducing them to join him in it and 
 having a large interest in the forma- 
 tion of the company; and the same 
 principle that enables a partner to 
 bind himself to do nothing in compe- 
 tition with the business of the firm, 
 ought to apply to him." In Leather 
 Cloth Co. v. Lorsont, L. E. 9 Eq. 345, 
 the vendors of a certain process of 
 manufacture agreed that they would 
 not carry on the business in any part 
 of Europe, nor communicate the pro- 
 
 cess to any person so as to interfere 
 with the exclusive enjoyment of the 
 purchaser of the benefits to be pur- 
 chased. It was held that the re- 
 straint was not greater than \vu« 
 necessary for the protection of the 
 purchaser, and it was enforced by in- 
 junction. In Ingram v. Stiff, 5 Jur. 
 (N. S.) 947, and Ainsworth v. Bent 
 ley, 14 Week. Rep. 630. an agreement 
 by the seller of a periodical not to 
 publish another similar one was en- 
 forced by injunction. In Stiff v. Cas- 
 sell, 2 Jur. (N. S.) 348, the defend- 
 ant agreed with plaintiff to write two 
 tales for a periodical, and that he 
 would not write for any other publi- 
 cation which should be sold for 
 less than a certain price, for 
 the space of a year, and the 
 restriction was held to be valid, 
 though it had no limitation as to 
 space. 
 
 23. Gamewell Fire Alarm Tel. Co. 
 v. Crane, 160 Mass. 50, 35 N\ E. 98. 
 per Field, C. J. : " The only ground 
 on which this restriction can be main- 
 tained is that it is reasonably neces- 
 saiy for the beneficial enjoyment by 
 the plaintiff of the property it bought 
 of the defendant, or if this is not so, 
 
 700
 
 CONTEACTS IN ReSTEAINT OF TEADE. 
 
 §465 
 
 § 465. Massachusetts decisions continued. — In Massachusetts, 
 contracts in unreasonable restraint of trade are held to be void as 
 against public policy, because they tend to deprive the public of 
 the services of men in the employments and capacities in which 
 they may be most useful, and that they expose the public to the 
 evils of monopoly. 24 The consideration of such contracts is deemed 
 by the law to be not merely insufficient and invalid but also 
 vicious, and to rest on the same ground as if such contracts were 
 
 that the law in modern times does 
 not regard such an agreement as 
 against public policy. So far as we 
 are aware, in every modern case in 
 this commonwealth, except one where 
 a contract in restraint of trade has 
 been held valid, the restriction has 
 been limited as to space. In Taylor 
 v. Blanchard, 13 Allen, 370. the 
 parties entered into a partnership for 
 carrying on ' the trade or business 
 of manufacturing shoe cutters,' and 
 it was provided that ' at whatever 
 time the said co-partnership shall be 
 determined and ended ' the defend- 
 ant ' shall not, nor will at any time 
 or times hereafter either alone or 
 jointly with, or as an agent for any 
 person or persons whomsoever, set 
 up, exercise, or carry on the said 
 trade or business of manufacturing 
 and selling shoe cutters at any place 
 within the aforesaid commonwealth 
 of Massachusetts, and shall not, nor 
 will set up, make, or encourage any 
 opposition to the said trade or busi- 
 ness hereafter to be carried on ' by 
 the plaintiff. The manufacture of 
 shoe cutters was an art which could 
 be carried on only by persons in- 
 structed in it, and the business was 
 confined to the plaintiff and three 
 other persons; but the court held the 
 agreement void. In Bishop v. Palmer, 
 146 Mass. 469, 16 N. E. 299, the 
 
 plaintiff, being engaged in the manu- 
 facturing and selling of bedquilts and 
 comfortables, conveyed to the defend- 
 ant his entire ' business plant and 
 enterprise as a manufacturer of and 
 dealer in bedquilts and comfortables,' 
 together with the good will of the 
 business, and all the machinery, im- 
 plements ; and utensils used by him 
 in said business, and agreed ' that for 
 and during the period of five yearB 
 from the date hereof he will not 
 either directly or indirectly, in his 
 own name or in the name of any 
 other person, engage in the business 
 of making or dealing in bedquilts, 
 etc., or of any business of which that 
 may form any part.' It was held that 
 this was clearly illegal and void as 
 being in restraint of trade because 
 not limited as to space. See, also, 
 Alger v. Thacher, 19 Pick. 51; Pierce 
 v. Fuller, 8 Mass. 223, 226; Perkins 
 v. Lyman, 9 Mass. 522; Stearns v. 
 Barrett, 1 Pick. 443; Palmer v. 
 Stebbins, 3 Pick. 188; Gilman v. 
 Dwight, 13 Gray, 356; Angier v. 
 Webber, 14 Allen, 211; Dean v. Em- 
 erson, 102 Mass. 480; Dwight v. 
 Hamilton, 113 Mass. 175; Boutelle v. 
 Smith, 116 Mass. Ill; Ropes v. Up- 
 ton, 125 Mass. 258; Handforth v. 
 Jackson, 150 Mass. 149, 22 N. E. 
 634." 
 
 24. Alger v. Thacher, 19 Pick. 51. 
 
 701
 
 § 466 Contuacts in Kestkaint of Trade. 
 
 forbidden by statute. 25 So a covenant by which the seller of a 
 manufacturing business agreed, without any limitation of spaa.-, 
 that during the period of five years he would not engage in that 
 business, or any business of which that might form a part, was 
 held to be illegal and void. 26 And if the bad part of the considera- 
 tion in such cases is not severable from the good, the whole con- 
 tract must fail. 27 When two covenants between parties are distinct 
 and divisible one may be enforced as valid, while the other may 
 be void because without limitation in its restraint of trade. Thus, 
 where a person covenanted not to engage in a certain business 
 within a certain county, and in a second covenant bound himself 
 not to be interested for five years in the same business within the 
 United States, he was held to be liable for a breach of the first 
 covenant, though the second might be void as in restraint of trade. 28 
 
 § 466. Decisions ; Michigan. — Where a manufacturing firm in 
 Michigan sold its stock and materials to an Illinois corporation 
 engaged in a similar business in Illinois, and agreed for five years 
 not to engage in the business in Michigan or in seven other speci- 
 fied States, nor to allow the premises where it had been carrying 
 on its business in Michigan to be used for that purpose, nor to sell 
 them for such use, without the consent of the buying corporation, 
 it was held that the violation of the agreement would not be en- 
 joined, it being void on the ground of public policy, for to enforce 
 such contracts might result in closing every factory in Michigan. 29 
 But a contract made by a merchant with a purchaser of his stock 
 and the good will of his business, not to engage in the same kind 
 
 25. Bishop v. Palmer, 146 Mass. 51; Clark v. Ricker, 14 N. H. 44; 
 469, 474, 16 N. E. 299. Woodruff v. Hinman, 11 Vt. 592; 
 
 26. Bishop v. Palmer, 146 Mass. Pickering v. Ilfracombe R. Co., L. 
 469, 16 N. E. 299; Taylor v. Blanch- R. 3 C. P. 2.",5; Harrington v. Vic- 
 ard, 13 Allen, 370; Dean v. Emer- toria Dock Co., L. R. 3 Q. B. D. 549. 
 Kon, 102 Mass. 4S0; Morse Twist 28. Dean v. Emerson, 102 Mass. 
 Drill Co. v. Morse, 103 Mass. 73; 480; Mallan v. May, 11 M. & W. 653; 
 Davies v. Davies, L. R. 36 Ch. D. 359. Price v. Green, 16 M. & W. 346. 
 
 27. Woodruff v. Wentworth, 133 29. Western Wooden Ware Assn. 
 Mass. 309, 314; Rand v. Mather, 11 v. Starkey, 84 Mich. 76, 47 N. W. 
 Cush. 1 ; Robinson v. Green. 3 Met. 604. See, also, Wright v. Ryder, 36 
 159, 101; Bliss v. Negus, 8 Mass. 46, Cal. 342. 
 
 702
 
 Contracts in Restraint of Trade. § 467 
 
 of business in the same town for a specified period, is valid, and 
 will be protected by injunction/* 
 
 30 
 
 § 467. Decisions ; New Jersey. — In New Jersey, a contract by 
 which a physician, on entering into the employ of another physi- 
 cian, " hereby covenants and agrees not to engage in the practice 
 of medicine or surgery in the city of Newark, at any time here- 
 after," was decided to be too unreasonable and oppressive to be 
 enforceable by injunction, because thus to enforce the covenant 
 according to its terms, would be to forever exclude the defendant 
 from the medical profession in Newark, while the complainant 
 might within a month lose his life, or reason, or remove to another 
 field of practice. It should be observed that this decision was put 
 partly on the ground that professional skill, experience and repu- 
 tation constitute part of the individuality of a physician, and die 
 with him, and cannot be sold, or pass to his personal representa- 
 tives as property rights. 31 In England a different rule has been 
 applied to the assistant of a druggist, who, in consideration of the 
 salary to be paid him, agreed that he would not, at any time after 
 leaving the service of plaintiff, engage either directly or indirectly 
 in the business of chemist or druggist within the town of Taunton. 32 
 
 30. Thompson v. Andrus, 73 Mich. delivering the opinion of the court in 
 551, 41 N. W. G83. In this case an Hitchcock v. Coker, 6 Ad. & El. 438, 
 attempt to continue the business os- 453, said: 'The good will of a 
 tensibly in the name of the covenant- trade is a subject of value and price, 
 or's wife, but managed by him, was It may be sold, bequeathed or be- 
 enjoined. See, also. Up River Ice Co. come assets in the hands of the per- 
 v. Denier, 114 Mich. 296, 72 N. W. sonal representative of a trader. And 
 157; Hubbard v. Miller, 27 Mich. if the restriction as to time is to be 
 15; Beal v. Chase, 31 Mich. held to be illegal if extended beyond 
 490; Doty v. Martin. 32 Mich. the period of the party by himself 
 462; Caswell v. Gibbs, 33 Mich. 331; carrying on the trade, the value of 
 Grow v. Seligman, 47 Mich. 610, 11 such good will, considered in those 
 N. W. 404; Watrou9 v. Allen, 57 various points of view, is altogether 
 Mich. 306, 24 N. W. 104. destroyed. If, therefore, it is not un- 
 
 31. Mandeville v. Harman, 42 N. reasonable, as it is not, to prevent a 
 J. Eq. 185, 7 Atl. 37. servant from entering into the same 
 
 32. Mandeville v. Harman, 42 N. trade in the same town in which his 
 J. Eq. 185, 192. 7 Atl. 37, per Fleet, master lives, so long as the master 
 V. C: "Chief Justice Tindal, in carries on the trade there, we can- 
 
 703
 
 §468 
 
 Contracts in Restraint of Trade. 
 
 § 468. Same subject. — An agreement, for a valuable considera- 
 tion, not to engage in the city of Trenton in the " galvanized iron 
 
 not think it unreasonable that the 
 restraint should be carried further 
 and should be allowed to continue if 
 the master sells the trade or be- 
 queathes it, or it becomes the prop- 
 erty of his personal representative.' 
 This doctrine has been adhered to in 
 subsequent cases and is now the es- 
 tablished law of Great Britain. Pem- 
 berton v. Vaughan, 10 Q. B. 87; 
 Elves v. Crofts, 10 C. B. 241; At- 
 kyns v. Kinnier, 4 Exch. 776." A 
 valuable note by the reporter of the 
 New Jersey Chancery Reports is in- 
 serted here, and due acknowledgment 
 made to him: 'Physicians' and sur- 
 geons' contracts, not to practice their 
 professions, have been held valid in 
 the following instances: for fourteen 
 years within ten miles, Davis v. Ma- 
 son, 5 T. R. 118; at any time within 
 seven miles, Sainter v. Ferguson, 7 
 C. B. 716; at any time, within two 
 and a half miles, Atkyns v. Kinnier, 
 4 Exch. 776; at W. or within twelve 
 miles thereof without plaintiff's con- 
 sent, during plaintiff's lifetime or 
 within ten years after his decease, 
 Eox v. Scard, 33 Beav. 327; so long 
 as R. G. or his successors should 
 carry on business at N., or within 
 ten miles thereof. Gravely v. Barnard, 
 43 L. J. Ch. 659, L. R. 18 Ch. 518; 
 not to locate with a view of resuming 
 his profession within a circle of 
 thirty miles around T., Mell v. 
 Moony, 30 Ga. 413 (approved in 
 Goodman v. Henderson, 68 Ga. 570) ; 
 a sale of a house and practice with a 
 condition not to establish a medical 
 practice within the township of 
 Chili, nor within six miles of the 
 house, Linn v. Sigsbee, 67 111. 75; a 
 similar sale, with a condition not to 
 
 practice in the town nor within fif- 
 teen miles thereof ' by himself, agent, 
 or otherwise,' Miller v. Elliott, I 
 Ind. 484; a sale of land and a prac- 
 tice, with a stipulation not to re- 
 settle in M. so long as the plaintiff 
 sbould be located there, allows the 
 vendor to practice but not to reside 
 there, Haldeman v. Simonton, 55 
 Iowa, 144; a sale of W.'s good will 
 of practice, said W. to quit the prac- 
 tice in favor of B., the purchaser, was 
 construed to include the territory 
 over which W.'s practice had ex- 
 tended, which could be established by 
 parol, Warfield v. Booth, 33 Md. 63; 
 a conveyance of the land to the pur- 
 chaser's wife, by whom the money for 
 the lands and practice is paid, is no 
 defense for the vendor's violating his 
 covenant, Dwight v. Hamilton, 113 
 Mass. 175; and see Doty v. Martin, 
 32 Mich. 462; to remove from a city 
 and vicinity and refrain from prac- 
 tice in said city and vicinity for at 
 least five years, was construed to era- 
 brace all territory within ten miles 
 ot the city limits. Timmerman v. 
 Dever, 52 Mich. 34, 17 N. W. 230; 
 see Carroll v. Hickes, 10 Phila. 308; 
 a purchase of the obligor's house and 
 of one-half of his medicines, jars and 
 bottles, and payment therefor, will 
 sustain an action on his bond not to 
 settle or continue as a practitioner 
 of medicine within fifteen miles of P., 
 after a specified time, Thompson v. 
 Means, 11 Sm. & M. 604; a bond by 
 a physician that he would not locate 
 himself and practice in his profession 
 within six miles of C, and in case he 
 should so locate or practice, he 
 would pay the obligor a certain sum 
 for each and every month that he 
 
 704
 
 CONTEACTS IN ReSTEAIXT OF TeADE. 
 
 §468 
 
 cornice, tin and sheet iron business," is not invalid because not 
 specifying any limit of time, and it is not necessary before a pre- 
 
 should so practice, is forfeited if he 
 practice within, although he resides 
 without, the prescribed limits, Smith 
 v. Smith, 4 Wend. 468; * in the vil- 
 lage of S. or town of S. for five years,' 
 Mott v. Mott, 11 Barb. 127; not to 
 practice medicine, nor in any man- 
 ner do business as a physician in the 
 county of Oswego at any time after 
 May 1, 1851, Holbrook v. Waters, 9 
 How. Pr. 335; a sale of a house and 
 practice with an agreement not to 
 practice in the town for ten years, 
 and if required by plaintiff to give a 
 bond in $5,000 penalty not to do so, 
 will not fix the plaintiff's damages 
 for violation of the covenant at 
 $5,000, where such bond was never 
 asked for or given, Amidon v. Gan- 
 non, 6 Hun, 384; see Niver v. Ross- 
 man, 18 Barb. 50; a sale of defend- 
 ant's office furniture and good will, 
 with a stipulation to remove not less 
 than twelve miles from the place and 
 never to establish himself as a phy- 
 sician within twelve miles without 
 plaintiff's consent, and to use his in- 
 fluence to throw his practice to the 
 benefit of plaintiff, and to give coun- 
 tenance to no other in that direction, 
 McClurg's Appeal, 58 Pa. St. 51; a 
 bond in $1,000, conditioned that B. 
 should not ' practice medicine within 
 five miles of S. } in which place he 
 has this day deeded certain property 
 to T.,' indicates on its face that the 
 $1,000 is a penalty, but circumstances 
 showing an intention that it was li- 
 quidated damages may be proved, 
 Bigony v. Tyson, 75 Pa. St. 157; 
 'not to practice within a radius of 
 five miles ' of a certain place, Bett's 
 Appeal, 10 W. N. Cas. 431; nor in 
 the neighborhood, MoNutt v. Mc- 
 
 Ewen, 1 W. N. Cas. 552; mutual co- 
 venants by partners that if A., at 
 the expiration of the term should sell 
 out his real estate to B., he would 
 not settle himself in pracice within 
 twenty miles of B.; and that B., if 
 he did not buy A. out, would not 
 settle himself in practice within 
 ten miles of A., are binding, Butler 
 v. Burleson, 16 Vt. 176. As to similar 
 contracts between dentists, see Mal- 
 lan v. May, 11 M. & W. 653; Horner 
 v. Graves, 7 Bing. 735; Cook v. John- 
 eon, 47 Conn. 175; Clark v. Crosby, 
 37 Vt. 188; Alcock v. Giberton, 5 
 Duer 76; and druggists, Hastings v. 
 Whitley, 2 Exch. 611; Hitchcock v. 
 Coker, 6 Ad. & Ell. 438; Hay ward v. 
 Young, 2 Chit. 407; Price v. Green, 
 16 M. & W. 346; Ward v. Hogan, 11 
 Abb. N. C. 478; Baker v. Cordon, 86 
 N. C. 116; and undertakers, Hall's 
 Appeal, 60 Pa. St. 458; and grave- 
 stone makers, Duffy v. Shockey, 11 
 Ind. 70; and attorneys, Bunn v. Guy, 
 4 East, 190 (criticised in Bozon v. 
 Farlow, 1 Meriv. 471); Nichols v. 
 Stretton, 10 Q. B. 346, 7 Beav. 42; 
 Dendy v. Henderson, 11 Exch. 194; 
 Whitaker v. Howe, 3 Beav. 383 (said 
 to have been overruled, Benj. on 
 Sales, § 525); Tallis v. Tallis, 16 
 Jur. 746, note; 1 Smith's L. C. (8th 
 ed.) 766; Wiley v. Baumgardner, 97 
 Ind. 69; Aubin v. Holt, 2 K. & J. 
 66; Howard v. Woodward, 10 Jur. 
 N. S. 1123; Galsworthy v. Strutt, 17 
 L. J. Exch. 226; Smalley v. Greene, 
 62 Iowa, 241; and school-teachers, 
 Spier v. Lambdin, 45 Ga. 319; and 
 tavern-keepers. Heichew v. Hamilton, 
 3 Greene (Iowa), 596, 4 Greene, 317; 
 Evans v. Elliott, 20 Ind. 283; Harri- 
 son v. Lockhart, 25 Ind. 112; Studa- 
 
 705 
 
 45
 
 §468 
 
 Contracts in Restraint of Trade. 
 
 liminary injunction issue restraining the violation of such agree- 
 ment, that the rights of the parties be established by a judgment 
 at law. 33 
 
 baker v. White, 31 Ind. 211; Mc- 
 Alister v. Howell, 42 Ind. 15; Stines 
 v. Dorman, 25 Ohio St. 580; Hatcher 
 v. Andrews, 5 Bush, 5G1 ; see Mos- 
 sop v. Mason, 16 Grant's Ch. 302, 17 
 Grant's Ch. 300; Elliott's Appeal, 60 
 Pa. St. 161; and barbers, Burrill v. 
 Daggett, 77 Me. 545; and photograph- 
 ers, Baumgarten v. Broad way, 77 N. 
 C. 8; Dean v. Emerson, 102 Mass. 
 480; and publishers, Tallis v. Tallis, 
 1 El & Bl. 301; Ingram v. Stiff, 5 
 Jur. N. S. 947; Ward v. Beeton, 23 
 W. R. 533; Conrad v. Dowling, 7 
 Blackf. 481; Spicer v. Hoop, 51 Ind. 
 365; Presbury v. Fisher, 18 Mo. 50; 
 Noah v. Webb, 1 Edw. Ch. 604; 
 Dakin v. Williams, 11 Wend. 67; 
 Beal v. Chase, 31 Mich. 490; and 
 book-binders, Drake v. Dodsworth, 4 
 Kan. 159; and dressmakers, Morgan 
 v. Perhamus, 36 Ohio St. 517; Mor- 
 ris v. Moss. 25 L. J. N. S. 194; and 
 milliners. Shackle v. Baker, 14 Ves. 
 468. See further, 19 Cent. L. J. 62, 
 81, 202, 27 Alb. L. J. 24." 
 
 33. Carll v. Snyder (N. J.), 26 
 Atl. 977, per Bird, V. C: "lam 
 satisfied that the proof is sufficiently 
 clear and definite to justify the court 
 in awarding a perpetual injunction 
 upon final hearing, in case it should 
 stand as it now does unimpeached. 
 I am equally well satisfied that the 
 insistment that the restraint is in- 
 definite as to time, and therefore un- 
 reasonable, ought not to prevail. I 
 think a careful study of the case of 
 Mitchel v. Reynolds, reported in 1 
 Smith, Leading Cas. (9th ed.), 694, 
 with the various annotations, botb 
 by the English and American editors, 
 will satisfy the mind as to the prin- 
 
 ciple upon which contracts of this 
 nature, not only may well be, but 
 really ought to be, supported, when 
 indefinite as to time. The purchaser 
 of such good will may fairly be sup- 
 posed to purchase, not only for his 
 own immediate use or benefit, but for 
 the use of his personal representa- 
 tives, in the same sense that he pur- 
 chases personal property or real es- 
 tate. I can see no just reason for 
 his not being able in the law to make 
 such an investment which shall pass 
 to bis assigns, executors, or adminis- 
 trators. It cannot be said, when it 
 is limited to a particular district, 
 that this in any manner interferes 
 with sound public policy. It would 
 not be a violation of the rule which 
 required such contracts to be in har- 
 mony witli the interests of the com- 
 munity at large in case the stipula- 
 tion were to be that the covenantee 
 should not carry on the trade in 
 question for twenty or thirty years; 
 and. if not for that periad of time, 
 then certainly it would not be if the 
 covenant extended to a lifetime. With 
 this in mind, when the object of the 
 prohibition put upon such contracts, 
 in view of a sound public policy, is 
 considered, it will be still more ap- 
 parent that this contract ought to 
 be upheld. Sound public policy re- 
 quires that every individual shall be 
 employed. The community is enti- 
 tled to his honest toil, whether man- 
 ual, mechanical or purely intellec- 
 tual. This being so, and such policy 
 upholding contracts for a definite pe- 
 riod of time, it is not to be presumed 
 that the covenantee, in any such case, 
 will spend the time, which the law 
 
 06
 
 Contracts in Restraint of Trade. 
 
 468a 
 
 § 468a. Decisions ; New York. — No contract is void as being 
 in general restraint of trade which, upon sufficient consideration, 
 operates simply to prevent a party from engaging or competing in 
 the same business as the other contracting party. 34 And an agree- 
 ment by vendors of a business not to engage in such business may 
 be enforced by injunction enjoining a breach. 35 So a covenant not 
 to engage in the same business within a restricted territory for a 
 specified time, made upon the sale of a business and its good will, 
 
 regards (supposing that there must 
 be a period limited in the contract), 
 in idleness, or in indifference to the 
 demands of such public policy, wait- 
 ing the time when the periol fixed by 
 the contract shall have expired, in 
 order that he may engage once more 
 in the employment which he had 
 agreed to abandon. In such matters 
 the public welfare, which the law re- 
 gards, is an essential element of con- 
 sideration; but the interest of the 
 individual in his own welfare is in- 
 finitely more efficacious and poten- 
 tial in securing the public good, al- 
 though that may not be in his mind. 
 He who has energy and integrity 
 enough to establish a business which 
 is worthy of the name, and for which 
 others will bid a fair price, will not 
 wait for the protection of the pater- 
 nal hand to make his footprints in 
 other quarters. In the following 
 cases there was no limit as to time, 
 and it will be observed that in many 
 of them resistance was made to their 
 enforcement on this account, but 
 without success: Richardson v. Pea- 
 cock, 26 N. J. Eq. 40, 28 N. J. Eq. 
 151, and 33 N. J. Eq. 597; Hitch- 
 cock v. Coker, 6 Ad. & El. 439; Hast- 
 ings v. Whitley, 2 Exch. 611; Mallan 
 v. May, 11 Mees. & W. 653; Bowser 
 v. Bliss, 7 Blackf. 344; Pierce v. Ful- 
 ler, 8 Mass. 223; Palmer v. Stebbins, 
 3 Pick. 188; Diamond Match Co. v. 
 
 Roeber, 106 N. Y. 473, 13 N. E. 419, 
 423. Counsel for defendants urged 
 that this was not a case for a pre- 
 liminary injunction, since the right 
 of the complainant had not been es- 
 tablished at law. I have given this 
 branch of the case not a little atten- 
 tion. It seems to me that, if a plain 
 breach of contract will ever justify 
 a preliminary injunction, this is 
 such. The rights of the parties are 
 thoroughly well defined by their 
 agreement. While they might be 
 more securely fixed by a judgment at 
 law, they could not be more certainly 
 defined — more securely fixed by a 
 judgment at law because that is 
 final, but that could only rest upon 
 the undisputed evidence upon which 
 this court is called upon to pro- 
 nounce its judgment preliminarily. 
 A preliminary injunction was 
 awarded in the case of Richardson v. 
 Peacock, supra, and, although that 
 case went to the Court of Errors and 
 Appeals, the action of this court in 
 that behalf was not questioned. 33 
 N. J. Eq. 597; Diamond Match Co. 
 v. Roeber, 100 N. Y. 473, 13 N. E. 
 419. 
 
 34. Leslie v. Lorillard, 110 N. Y. 
 519, 534, 18 N. E. 363. 
 
 35. Mackinnon Pen Co. v. Foun- 
 tain Pen Co., 48 N. Y. Super. Ct. 
 442. 
 
 ID7
 
 § 468b Contracts in Restraint of Trade. 
 
 as an inducement thereto, is valid and enforceable by injunction, 
 although such business is a professional one. 36 And where a firm 
 sold out its business to a corporation and agreed not to engage in 
 the same business within the limits of the United States except as 
 an employee of the purchaser, it was held that such a covenant 
 was valid and enforceable and that the purchaser was entitled to 
 an injunction restraining the seller from a breach of such cove- 
 nant. 37 Again, a by-law of the Associated Press of New York, 
 providing that no member shall receive or publish the regular news 
 dispatches of any other news association covering a like territory, 
 and organized for a like purpose, is not void as in restraint of 
 trade, and an injunction against a breach of it may be granted. 38 
 
 § 468b. Decisions; Pennsylvania; Texas. — In Pennsylvania 
 it has been decided that an employee who enters into a contract 
 with his employer not to engage in the same business in a certain 
 territory within a specified time after the termination of his em- 
 ployment may be enjoined against the violation of such agree- 
 ment. 39 In this State the existence of an alleged agreement in 
 restraint of trade should be established by clear and satisfactory 
 evidence in order to justify the court in restraining its breach by 
 injunction. 40 And when a court of equity is called upon to enjoin 
 a person against the free exercise of a trade, the violation of the 
 agreement ought not to be doubtful. 41 In Texas an injunction 
 will issue to prevent the breach of an agreement by a vendor not 
 to engage in a certain business for a specified period of time with- 
 out regard to whether substantial damages would, or would not, 
 result from such a breach. 42 
 
 36. Niles v. Fenn, 12 Misc. R. (N. Press of State of New York, 130 N. 
 Y.) 470, 33 N. Y. Supp. 857. So Y. 662, 32 N. E. 981. 
 
 holding in tlie case of the sale of a 39. Knickerbocker Ice Co. v. Mont- 
 
 dental business. gomery, 7 Pa. Dist. R. 463, 21 Pa. 
 
 37. United States Cordage Co. v. Co. Ct. R. 409. 
 
 Wall's Son's Rope Co., 90 Hun (N. 40. Hall's Appeal, 60 Pa. St. 458, 
 
 Y.), 429, 35 N. Y. Supp. 978. 100 Am. Dec. 584. 
 
 38. Matthews v. Associated Press 41. Harkinson's Appeal, 78 Pa. 
 of State of New York, 136 N. Y. 333. St. 196, 203. 
 
 32 N. E. 981; Bleisteiu v. Associated 42. Anderson v. Rowland, 18 Tex. 
 
 Civ. App. 460, 44 S. W. 911. 
 
 70S
 
 Contracts in Resteaint of Teade. §§ 469, 469a 
 
 § 469. Federal rule. — In the Federal courts, too, the strict rule 
 which is recognized to have formerly existed in England in rela- 
 tion to the invalidity of contracts in restraint of trade, 43 is con- 
 sidered to have been made for a condition of things and a state of 
 society different from those which now prevail in this country, 
 and therefore requires to be modified so that such contracts may 
 be enforced, if they do not impose a greater restraint upon one 
 party than protection to the other requires. 44 If a contract in 
 restraint of trade is not one which should be held by the court 
 unlawful as opposed to public policy equity may grant an injunc- 
 tion to prevent a breach thereof, it being difficult to estimate the 
 damages in such a case and also because of the multiplicity of suits 
 likely to ensue. 45 Thus, a contract relating to " Wistar's Balsam 
 of Wild Cherry," which sold the recipe for preparing it and the 
 monopoly of it in certain States, and which stipulated that it 
 should not be sold below a certain price, is not invalid as in re- 
 straint of trade, and should be enforced. 46 
 
 § 469a. Decisions; England; Canada. — In England it is de- 
 cided that a negative covenant, in a contract between an employer 
 and employee, that the latter will not, during the term of his 
 employment, engage in the same line of business with another, 
 
 43. Mitchel v. Reynolds, 1 P. Wms. limited as to the space within which, 
 181. though unlimited as to the time for 
 
 44. Gibbs v. Consolidated Gas which the restraint was to operate, 
 Co. of Baltimore, 130 U. S. 396, 409, we are unable to perceive how they 
 9 S. Ct. 553, 32 L. Ed. 979. could be regarded as so unreasonable 
 
 45. Davis v. Booth Co., 131 Fed. as to justify the court in declining 
 31, 65 C. C. A. 269, so holding in the to enforce them. The vendors were 
 case of a contract, on the sale of a entitled to sell to the best advantage, 
 business, not to engage in a similar and in so doing to exercise the right 
 business in certain localities. See to preclude themselves from entering 
 Camors-McConnell Co. v. McConnell, into competition with those who pur- 
 140 Fed. 412 (C. C. A.). chased and to prevent competition 
 
 46. Fowle v. Park, 131 U. S. 88, 9 between purchasers; and the purchas- 
 S. Ct. 608, 33 L. Ed. 67, per Fuller, C. ers were entitled to such protection 
 J.- "Relating, as these contracts do, to as was reasonably necessary for their 
 a compound involving a secret in its benefit." See, also, Oregon Steam 
 preparation; based, as they were, Nav. Co. v. Winsor, 20 Wall. 64, 68, 
 upon a valuable consideration, and 22 L. Ed. 315. 
 
 709
 
 §469a 
 
 CONTBACTS IN RESTRAINT OF TflADE. 
 
 may be enforced by an injunction. 47 And where a firm in Eng- 
 land, for the manufacture and sale of aniline and tar products, 
 had agencies in all parts of the world, it was held that a covenant, 
 by which an agent bound himself on retiring from his agency, 
 for three consecutive years after such retirement, not to enter any 
 like or similar business, nor give any information about the busi- 
 ness, was not unreasonable or void as in restraint of trade, and that 
 its breach should be enjoined, though it was unlimited as to 
 space. 48 And an agreement by a commercial traveler for a brewer 
 that he would not be concerned within a specified district, in sell- 
 ing malt liquors at any time within two years after the end of his 
 employment with the brewer, was enforced by injunction. 49 In 
 Canada it is also decided that an injunction will be granted to 
 prevent a breach of an agreement, limited as to time and territory, 
 not to engage in a certain business. 50 
 
 47. Robinson v. Heuer, (C. A.) 
 t 1898], 2 Ch. 451, 67 L. J. Ch. N. S. 
 644. 
 
 48. Badische, etc., Fabrik, v. 
 Scbott (1892), 3 Ch. 447, per Chitty, 
 J. : " The reasonableness depends on 
 all the circumstances which must be 
 duly weighed in each case. If the re- 
 straint is greater than can possibly 
 be required for the protection of the 
 business of the covenantee, the cove- 
 nant is unreasonable and void. Ward 
 v. Byrne, 5 M. & W. 548, 561. The 
 circumstances which may be inquired 
 into on this question of reasonable- 
 ness are those under which the trade 
 is carried on when the covenant is 
 entered into. The improvements in 
 the means of communication which 
 have taken place in recent times by 
 telegraph, railroads, etc., are, I think, 
 within the scope of the inquiry, and. 
 bear particularly on the question of 
 space; they are relevant more or less 
 in proportion to the greater or lessor 
 area within which the trade sought 
 
 to be protected is carried on, and to 
 the varying nature of the trade it- 
 self. Such matters would have little 
 or no relevancy if the question re- 
 lated to the protection of a small lo- 
 cal business, such as that of a village 
 baker or cobbler, and if the restraint 
 sought to be imposed on a journey- 
 man cobbler, though limited as to 
 time, extended to the whole of Eng- 
 land, it would be unreasonable and 
 vexatious. But they would be rele- 
 vant in reference to the large trade 
 of a merchant, and a widely extended 
 news-collecting agency, or to any 
 other trade covering a great portion 
 of the globe. What might in former 
 ages have been considered an unrea- 
 sonable restriction, would not neces- 
 sarily be so held in the altered cir- 
 cumstances of the present time." 
 
 49. Rogers v. Haddocks (1892), 
 3 Ch. 346. 
 
 50. McCausland v. Hill, 23 Ont. 
 App. 738. 
 
 710
 
 CONTRACTS IN RESTRAINT OF TRADE. 
 
 470 
 
 8 470 On sale of good will.— In the absence of express con- 
 tract one who sells the good will of a business is not prevented 
 from leasing premises which he owns in the vicinity to another 
 person to carry on the same business, provided the lessor has no 
 interest in it. 51 The law tolerates and will uphold a contract m 
 restraint of trade, made between a vendor and purchaser which is 
 intended to secure to the purchaser of the good will a guaranty 
 against the competition of the vendor; but such a contract is not 
 to be treated with special indulgence, and its scope « not to be 
 extended by implication or by a too liberal construction. Where 
 a person sells the good will of the trade of a particular store in a 
 citv and not the good will of the trade of the store within the 
 limits of the city, he cannot be restrained, in the absence of an 
 express covenant, from transacting the same business m another 
 store in the same city. 53 But a trader who has sold his business 
 and -ood will to another for value, may be restrained from solicit- 
 ing orders from his old customers. 54 And in Massachusetts, where 
 
 51. Bradford v. Pecliam, 9 R. I. 
 250, where there was douht as to any 
 distinct agreement by the seller of a 
 business not to engage in the same 
 business at or near the same place, 
 it was held that such an agreement 
 could not be supplied by intendment, 
 and that defendant could not be en- 
 joined from carrying on the same 
 business at the same place. Stephens 
 v. Aulls, 3 Thomp. & C. 781; Welz v. 
 Rhodius, 87 Ind. 1. See, also, 
 Shackle v. Baker, 14 Ves. 468. 
 
 In case of an express covenant 
 not to engage in the same business, 
 a breach thereof may be enjoined. 
 Swanson v. Kirby, 98 Ga. 586, 26 S. 
 E. 71. See Acker, Merril & Coudet 
 Co. v. McGaw, 144 Fed. 864. 
 
 52. Greenfield v. Gilman, 140 N. 
 Y. 168, 35 N. E. 435. In this case it 
 was decided on appeal that an agree- 
 ment of a physician with a purchaser 
 of his business, not to practice medi- 
 cine or surgery, providing that to 
 
 practice medicine or surgery shall 
 mean to prescribe for, to compound 
 medicine for, advise or visit any sick 
 person, or to perform any act re- 
 quired of a person legally qualified 
 to practice medicine or surgery, 
 specifying $1,500 as liquidated dam- 
 ages for a violation thereof, will be 
 held to prohibit merely the practice 
 of medicine and surgery, and not to 
 have been violated by a single visit 
 in consultation on a person in ex- 
 tremis, when no charge was made, 
 though a small fee was paid, or by 
 prescribing for a few persons without 
 charge who came to his drug store 
 for medicine. 
 
 53. Bassett v. Percival, 5 Allen 
 (Mass.), 345; Althen v. Vreeland 
 (N. J. Ch.), 30 Atl. 479. 
 
 54. Atthcn v. Vreeland (N. J. 
 Ch.), 36 Atl. 479; Ginesi v. Cooper, 
 L. R. 14 Ch. D. 596; Laboucbere v. 
 Dawson, L. R. 13 Eq. 322. 
 
 711
 
 §471 
 
 Contracts in Restraint of Trade. 
 
 a physician sold to another his real estate, practice and good will 
 of his business in a specified town, it was held he might be enjoined 
 from resuming practice as a physician in the same town, there 
 being an implied covenant that he would not interfere with that 
 which he had sold. 55 But where a contract of sale provides that the 
 seller may engage in the same business at his option, he will not 
 be enjoined from soliciting the customers of the old firm. 56 
 
 § 471. As to unique manufactures. — An injunction will lie to 
 restrain the violation of a contract to manufacture for plaintiff, 
 and for no one else, an article of furniture made according to a 
 special and unique design furnished by the plaintiff, since such a 
 contract is not against public policy, and there is no adequate 
 remedy at law. 57 
 
 55. Dwight v. Hamilton, 113 
 Mass. 175, per Endicott, J.: "The 
 sale of the practice and good will of 
 a physician within certain limits, is 
 the legitimate subject matter of a 
 contract, and carries with it the im- 
 plied covenant, as in other sales, that 
 the vendor will not himself do any- 
 thing to disturb or injure the vendee 
 in the enjoyment of that which he 
 has purchased. This case resembles 
 Angier v. Webber, 14 Allen, 211, 
 where the interest and good will of 
 a teamster's business between Bos- 
 ton and Somerville were sold. As in 
 this case, certain limits were desig- 
 nated. There was no express cove- 
 nant that the defendant would not 
 enter into the same business on the 
 same route, but simply a covenant he 
 would not do anything to impair the 
 business he had sold. But such cove- 
 nant only expressed what otherwise 
 would have been implied. Here the 
 defendant, within three months of 
 the sale, returned to Douglas, opened 
 
 an office in the next house but one 
 from his former office, and recom- 
 menced the practice which, with its 
 good will, he had sold to plaintiff. 
 For such breach the plaintiff may 
 have an action at law or a more com- 
 plete remedy in equity by injunction, 
 and so compel the defendant to the 
 performance of his agreement. En- 
 sign v. Kellogg, 4 Pick. 1; Fox v. 
 Scard, 33 Beav. 327; Howard v. 
 Woodward, 10 Jur. (N. S.) 1123." 
 
 56. Pearson v. Pearson, L. R. 27 
 Ch. D. 145. 
 
 57. Lowenbein v. Fuldner, 2 Misc. 
 176, 21 N. Y. Supp. 615. In Saltus 
 v. Bel ford Co., 133 N. Y. 499, 31 N. 
 E. 518, a publisher was enjoined 
 from violating his contract with an 
 author while acting under the li- 
 cense which the contract afforded 
 him; the court distinguished Hyatt 
 v. Ingalls, 124 N. Y. 93, 26 N. E. 
 285, as a case in which the injunc- 
 tion was stricken out by the decree 
 which ended the license. 
 
 712
 
 CONTEACTS IN RESTRAINT OF TeADE. §§ 472, 472a 
 
 § 472. Divisible contracts restraining trade. — A contract in 
 restraint of trade may be divisible as to place, being valid within 
 certain limits and invalid beyond those limits. Thus where one 
 agreed not thereafter to engage in the business of manufacturing 
 ochre " in the county of Lehigh, or elsewhere," it was held that 
 while the contract was void outside of Lehigh county, it was good 
 within the county, and that he could be enjoined from manufac- 
 turing ochre within the county. 58 
 
 § 472a. Adequacy of consideration not material. — Courts will 
 generally uphold contracts where, as a matter of fact, there is some 
 legal consideration, and in a proceeding by a party to enjoin the 
 breach of a contract in restraint of trade adequacy of the con- 
 sideration does not determine the right to the injunction. 59 In this 
 connection it has been decided that the purchase by an individual 
 of a stockholder's interest in a corporation affords a sufficient con- 
 sideration for a contemporaneous agreement by the seller not to 
 engage in the business carried on by the corporation. 60 And the 
 purchase of the stock in trade of a party is a sufficient considera- 
 tion for that party's agreement to abstain from carrying on the 
 particular trade in the place where the purchaser is to engage in 
 it. 61 In a case in Indiana, however, it is decided that a court of 
 equity may decline to interfere where the disproportion between 
 
 58. Smith's Appeal, 113 Pa. St. term of five years." The contract 
 
 579, 6 Atl. 251. In Price v. Green, was held to be divisible, and reason- 
 
 16 Mees. & W. 346, the contract was able and valid as to the city of St. 
 
 that defendant was not to exercise Louis. See Presbury v. Fisher, 18 
 
 the trade of a performer in London, Mo. 50; Thomas v. Miles, 3 Ohio St. 
 
 or within six hundred miles thereof; 274. 
 
 it was held divisible, and good for 59. Ryan v. Hamilton, 205 111. 191, 
 
 London only. In Oregon Steam Nav. 68 N. E. 781 ; Beatty v. Cable, 142 
 
 Co. v. Winsor, 20 Wall. 70, 22 Ind. 329, 41 N. E. 590; Eisel v. 
 
 L. Ed. 315, the contract in Hayes, 141 Ind. 41, 40 N. E. 119; 
 
 question was held to be divisible, Guerand v. Daudelet, 32 Md. 561; 
 
 and was enforced in part. In McClurg's Appeal. 58 Pa. St. 51. 
 
 Peltz v Eichele, 62 Mo. 171, the de- 60. Up River Ice Co. v. Denier, 
 
 fendant covenanted on sale of his 114 Mich. 296, 72 N. W. 157. 
 
 match factory "not to enter into the 61. Eisel v. Hayes, 141 Ind. 41, 
 
 manufacture of matches at this (St. 40 N. E. 119. 
 Louis), or any other place, for the 
 
 713
 
 § 473 Contracts in Restraint of Trade. 
 
 the consideration and the restriction is such as to make the agree- 
 ment hard and oppressive. 62 
 
 § 473. Parol restrictive agreements. — A parol agreement in 
 restraint of trade, made in consideration of another distinct 
 written contract between the same parties, may be enforced by 
 injunction. This rule was applied where the lessor of a hotel, at 
 the time of executing a written lease thereof, made a parol agree- 
 ment not to keep a hotel in the same city during the term of the 
 lease. 63 Thus where one sells the lease of a house and the good 
 will of the business carried on there, he may be enjoined from 
 violating a mere oral agreement not to resume the business in the 
 same street. 64 And a parol agreement not to engage in trade at a 
 particular place is not void, because unwritten, under the pro- 
 vision of the statute of frauds, which requires agreements " not 
 to be performed within one year from the making thereof to be 
 in writing," 65 because such an agreement being only a personal 
 engagement to forbear doing certain acts, not stipulating for any- 
 thing beyond the promisor's life, and imposing no obligation on 
 his personal representatives, would be fully performed if he died 
 within the year. 66 And the owner of land may, by parol contract 
 with the purchasers of successive parcels of it, affect the remain- 
 ing parcels with an equity which is binding upon a subsequent 
 purchaser of one of them, with notice of the fact, though his legal 
 title be absolute and unrestricted. 67 
 
 62. Thayer v. Younge, 86 Ind. 259. forms no part of it ; but stands on its 
 
 63. Welz v. Rhodius, 87 Ind. 1. own terms, to-vvit: it is a contract 
 In Spier v. Lambdin, 45 Ga. 319, for which the other contract is the 
 plaintiff was induced to buy from consideration." See, also, Mell v. 
 defendant the lease of an academy Mooi-.ey. 30 Ga. 413. 
 
 by parol inducements, that if de- 64. Harrison v. Gardner. 2 Madd. 
 
 fendant could sell he would quit 198. 
 
 teaching in the locality. In uphold- 65. Doyle v. Dixon. 97 Mass. 208. 
 
 ing the injunction against defendant, 66. Worthy v. Jones, 11 Gray, 
 
 McCay, J., said: "If this was an 168; Lyon v. King, 11 Met. 411. And 
 
 independent contract, for which the see Peters v. Westborough, 19 Pick. 
 
 agreement to buy the lease was the 364; Hill v. Jamieson, 16 Ind. 125; 
 
 consideration, then it may be proved Wiggins v. Keizer, 6 Ind. 252. 
 
 by parol, though the lease-contract 67. Tallmadge v. East River Bank, 
 
 was reduced to writing; since it 26 N. Y. 105. 
 
 714
 
 Contbacts in Restraint of Tkade. §§ 473a, 473b 
 
 § 473a. What constitutes violation. — Where a party, under an 
 agreement not to carry on a specified business, under color of 
 another name engages in a business which is within the spirit of 
 the agreement, he will be restrained from continuing it. 68 And in 
 case of an agreement not to engage in a certain business or to aid, 
 encourage, or advise others to do so, an injunction may be granted 
 restraining the party to the contract from giving, and another 
 from receiving, such aid. 69 But it has been decided that a cove- 
 nant on the sale of a business and good will, not to engage in the 
 same business, does not bind the covenantor's wife or prevent her 
 from using her own name in a similar business established by her, 
 though such use injures the good will of the purchaser of the 
 husband's business. 70 And it is held that in case of a contract by 
 a wife, not to engage in a certain business, it will not operate to 
 prevent the husband from engaging in such business, and he will 
 not be enjoined from so doing where it does not appear that his 
 name is used as a cover to conceal the interest of the wife. 71 
 
 § 473b. Agreements; dissolution of partnership. — Where part- 
 ners dissolve partnership and one of them sells out his interest to 
 the other or others and agrees not to engage in the same business 
 in the same locality, an injunction will be granted to restrain him 
 from a violation of such agreement.' 2 So a covenant in partnership 
 articles, prohibiting either partner from continuing in any busi- 
 ness within one block of the premises occupied by the firm, for a 
 limited period after its dissolution is held to be enforceable by 
 injunction. 73 And though in such a contract between parties a 
 sum is named as liquidated damages, the naming of such sum does 
 not of itself conclusively establish that the parties contemplated to 
 
 68. Richardson v. Peacock, 26 N. 71. Emmert v. Richardson, 44 
 J. Eq. 40; Booth & Co. v. Seibold, Kan. 268, 24 Pac. 480. 
 
 37 Misc. R. (N. Y.) 101, 74 N. Y. 72. Watson v. Ross.. 46 111. App. 
 
 Supp. 776. 188; Augier v. Webber, 14 Allen 
 
 69. Baker v. Pottmeyer, 75 Ind. (Mass.), 211. 
 
 451. 73. Shearman v. Hart, 14 Abb. 
 
 70. Fleckenstein Bros. Co. v. Prac. (N. Y.) 358; Butler v. Burle- 
 Fleckenstein, 66 N. J. Eq. 252, 57 son, 16 Vt. 176. 
 
 Atl. 1025. 
 
 715
 
 §§ 473c, 473d, 473e Contracts in Restraint of Trade. 
 
 do the act upon the payment of the compensation, and make an 
 alternative agreement for the benefit of the party who has done 
 what he had agreed not to do. 74 The fact, however, that a partner 
 who has sold out his interest to the remaining partner or partners 
 loans money to a competitor does not constitute a breach of an 
 agreement not to directly or indirectly engage in the same busi- 
 ness.' 5 
 
 § 473c. Injunction against third party. — Where one has sold a 
 business and covenanted not to engage in the same business him- 
 self or to act therein as: agent or servant, one who is a stranger 
 to the contract and who establishes a similar business under the 
 name of the wife of the covenantor will be enjoined, at the instance 
 of the purchaser of the business of the covenantor, from causing 
 the latter to violate his contract by employing him. 76 
 
 § 473d. Agreement not to use name. — Where a person estab- 
 lishes and conducts a business under a certain name and upon a 
 sale of the business agrees to give the purchaser the use of such 
 name and not to use it himself in a rival business, he will be 
 enjoined from violating his agreement. 77 
 
 § 47 3e. Effect of provision for liquidated damages. — A pro- 
 vision for liquidated damages in a contract in which the seller of 
 a business agrees not to engage in such business in a certain town, 
 does not oust the jurisdiction of a court of chancery to enjoin a 
 breach of such contract. 78 So in a case in Pennsylvania in which 
 it appeared that a physician who had sold his practice had bound 
 himself in a " penal sum " of a certain amount not to practice in 
 that locality for ten years, it was decided that the sum named was 
 a penalty and that as there was an utter uncertainty in any calcu- 
 
 74. Ropes v. Upton, 125 Mass. 258. 77. Grow v. Seligman, 47 Mich. 
 
 75. Salzman v. Siegelman, 102 607, 11 N. W. 404, 41 Am. Rep. 737. 
 App. Div. (N. Y.) 406, 92 N. Y. In this case the business was estab- 
 Supp. 844. Hshed in the name of " Little Jake." 
 
 76. Fleckenstein Bros. v. Fleck- 78. Harris v. Theus (Ala. 1907). 
 enstein, 66 N. J. Eq. 252, 57 Atl. 43 So. 131, 10 L. R. A. (N. S.) 204; 
 1025 - McCurry v. Gibson, 108 Ala. 451, 18 
 
 716
 
 CONTKACTS IN RESTRAINT OF TRADE. § 4:73e 
 
 lation of damages from the breach of the covenant, and the measure 
 of damages was largely conjectural, equity would intervene, be- 
 cause of the inadequacy of the remedy at law, by an injunction 
 enforcing performance of the agreement. 79 And a similar con- 
 clusion is reached in a case of this kind in Alabama. 80 But in 
 Indiana it is decided that where the parties to a contract m re- 
 straint of trade have agreed upon the damages which may be 
 recovered for a breach thereof, the remedy is for the recovery oi 
 the sum thus fixed, and an injunction will not lie. 81 And m a 
 case in Connecticut where it appeared that the defendant had 
 agreed with the plaintiff not to practice dentistry for ten years 
 within a certain distance of a city, but with a provision that he 
 might do so on paying the plaintiff one thousand dollars, it was 
 decided that a court of equity would not grant an injunction 
 against the defendant's practice of dentistry within that limit, but 
 would leave the plaintiff to his action at law for the recovery of 
 the thousand dollars even though the defendant was insolvent 
 
 It would seem, however, in this case that, especially in view oi 
 the wording of the provision, the proper procedure would have 
 been to have enjoined the defendant from practicing until the 
 pavment of the sum provided for. And authority for such pro- 
 cedure is to be found in a case in New York in which it is declared 
 that even if the remedy were to be limited to the sum provided as 
 damages in a contract in restraint of trade, equity would probably 
 take cognizance to the extent of enjoining the defendant, if unable 
 to respond in damages, from prosecuting the business which con- 
 stituted the breach until the damages should be paid. 
 
 So. 806; Knickerbocker Ice Co. v. follows: -It fa further mutually 
 
 Mont.oTr.ery. 7 Pa. Dist. R. 463. 21 understood and agreed by and be- 
 
 p Y r / R 409 tween the parties hereto that the 
 
 79 Wilkinson v. Colley, 164 Pa. said Doebler may be at liberty Jo 
 St 35 30 Atl. 286, 26 L. R. A. 114. practice dentistry in said Hartford 
 
 80 McCurry v. Gibson, 108 Ala. at any time after the termination of 
 .*? io «„ «nfi tllis contract, oy the paying to said 
 
 g'l Martin v. Murphy, 129 Ind. Dills of one thousand dollars, and 
 
 AM 28 N. E. 1118. giving such bond as « hereinbe- 
 
 82 Dills v. Doebler, 62 Conn. 366, fore alluded to in reference to the 
 
 26 Ail 398, 36 Am. St. Rep. 345, 20 term 'Associate Dentists . 
 
 -da aw 83 Zimmerman v. Gerzog 13 App. 
 
 5. elau« in the contract wa, as Div. (N. Y.) 210, 43 N. Y. Snpp. 339. 
 
 717
 
 §§ 473f, 473g, 473h Contracts in Restraint of Trade. 
 
 § 473f. Power of court to award damages. — In an equitable 
 action, upon the establishment of plaintiff's right to have the 
 defendant restrained from violating his agreement not to engage 
 in a certain business, the court may, in order to do complete justice 
 in the matter, and render unnecessary a resort to an action at law, 
 award damages on account of a violation of said agreement during 
 the litigation. 84 
 
 § 473g. Time of bringing action to enjoin. — Where the seller 
 of a business makes a valid covenant not to engage in a certain 
 business, the covenantee need not wait until the covenantor has 
 actually commenced the carrying on of the business before bring- 
 ing an action to enjoin the breach, but it is sufficient to authorize 
 a court of equity to act where the allegations show a present pur- 
 pose to begin the operation of the business. 85 
 
 § 473h. Sufficiency of complaint. — In an action by the pur- 
 chaser of an interest in a business to restrain the. vendor from 
 violating an agreement not to engage in the same kind of business 
 in the same city a complaint alleging that, contrary to such agree- 
 ment, the vendor has engaged in such business by associating him- 
 self with others therein, and that the inevitable result of such con- 
 nection, if it be permitted to continue, will be a large diminution 
 in the value of the good will of the business purchased by plaintiff, 
 sufficiently alleges that the restraint prayed for is necessary to the 
 protection of plaintiff's business. 86 
 
 84. My Laundry Co. v. Schmeling, 43 So. 131. 10 L. R. A. (N. S.) 204. 
 129 Wis. 597. 109 N. W. 540. 86. My Laundry Co. v. Schmeling, 
 
 85. Harris v. Theus (Ala. 1907), 129 Wis. 597, 109 N. W. 540. 
 
 718
 
 Relating to Restrictive Covenants. § 474 
 
 CHAPTER XV. 
 
 Relating to Restrictive Covenants. 
 
 Section 474. Enforcing restrictive covenants by injunction — Change of locus. 
 
 475. Though covenant does not run with land. 
 
 476. Form of covenant not essential. 
 
 477. Though covenant not in writing. 
 
 478. How statute of frauds affects oral covenants. 
 
 479. As between successors to title. 
 
 480. Restrictions as to buildings — Though no damage. 
 
 481. Covenant against tenement houses — Dwellings only. 
 481a. Restrictions as to use of premises. 
 
 482. Covenant not to sell liquors. 
 
 483. Enjoining vendor from breach of covenants. 
 483a. Same subject — Tract of land divided into lots. 
 
 484. Lessees' covenants. 
 
 485. Same subject. 
 
 486. Sub-lessees. 
 
 487. Enjoining lessor from breach of covenants. 
 
 488. Waiver of right to enjoin breach — Acquiescence. 
 
 488a. Same subject — Where complainant has violated restriction. 
 
 489. Vague and uncertain general covenants. 
 489a. Need not be substantial injury. 
 
 490. Present and reversionary interests. 
 
 491. Penalty and liquidated damages. 
 
 492. Same subject illustrated. 
 
 493. Same subject — Construction of covenant. 
 
 Section 474. Enforcing restrictive covenants by injunction; 
 change of locus. — Where the owner of lands in a city has laid it 
 out into lots and conveyed them to different purchasers), each 
 conveyance containing covenants on the part of the grantee run- 
 ning with the land, restricting the use thereof to the purposes of 
 a private residence, and prohibiting thereon the erection of cer- 
 tain specified structures, a court of equity has power by injunction 
 to enforce these negative covenants, but the power is discretionary, 
 ,and where there has been such a change in the neighborhood as 
 to defeat the object of the covenant and to render it inequitable to 
 deprive a grantee or his successors in title of the privilege of 
 conforming his property to the character of such change, injunc- 
 
 719
 
 § 474 Kelating to Eestrictive Covenants. 
 
 tive relief will not be granted, but in lieu thereof damages may 
 be allowed. 1 Though the covenant was fair and just when made, 
 yet a court of equity should refuse to enforce it by injunction if 
 subsequent events have made performance so onerous that its 
 enforcement would cause great hardship to him and little or no 
 benefit to plaintiff. 3 So it is decided in a recent case that where 
 the change in the condition of the surrounding property is such 
 that a performance of the covenant in the deed would injure the 
 grantee's property, or make it yield less profit, or make it incap- 
 able of yielding any profit, the covenant will not be enforced as 
 being unreasonable and oppressive. 4 So where the purpose of a 
 restriction is to make a locality a suitable one for residences and 
 owing to the growth of a city and the use of the neighborhood for 
 business the purpose can be no longer accomplished, equity will 
 not interfere by injunction to enjoin a breach. 5 So a change in the 
 character of a neighborhood from a residential to a business 
 locality after the signing of an instrument as to the erection of 
 buildings within a certain distance from the front of lots has been 
 held to be a sufficient reason for refusing an injunction to enforce 
 the covenant. 6 But where the owner of a parcel of land con- 
 
 1. Amerman v. Deane, 132 N. Y. law." Star Brewery Co. v. Primas, 
 355, 30 N. E. 741. The rule laid 163 111. 652, 45 N. E. 145. Per Ma- 
 down in the text was applied and an gruder, J. See, also, Trustees of 
 injunction refused, to prevent the Columbia College v. Thacher, 87 N. 
 breach of a covenant not to carry on Y. 311, 41 Am. Rep. 365. 
 any trade or business where the 3. Trustees of Columbia College 
 character of the locus in quo had v. Thacher, 87 N. Y. 311, 41 
 been wholly changed by the construe- Am. Rep. 365; Clarke v. Roch- 
 
 tion of an elevated road. ester, etc., R. Co., 18 Barb. (N. 
 
 " It is as a general thing, where Y.) 350; Davis v. Hone, 2 Sch. & 
 
 the acts of the grantor, or those de- Lef. 340; Baily v. DeCrespigny, L. 
 
 riving title under him, have altered the E. 4 Q. B. 180; Duncan v. Central 
 
 character and condition of the ad- Passenger B. Co.. 85 Ky. 525, 4 S. 
 
 joining lands so as to make the re- W. 228. 
 
 striclion of the covenant inapplicable 4. Star Brewery Co. v. Primas, 
 
 according to the intent and spirit of 163 111. 652, 45 N. E. 145. 
 
 the contract, that courts of equity 5. Jackson v. Stevenson, 156 Mass. 
 
 refuse to interfere by injunction to 496, 31 N. E. 691, 32 Am. St. Rep. 
 
 prevent a breach of the covenant, and 476. 
 
 leave the parties to their remedy at 6. Schefer v. Ball, 53 Misc. R. 
 
 720
 
 .Relating to Restrictive Covenants. 
 
 §475 
 
 veyed portions of it to various persons with covenants prohibiting, 
 inter alia, the erection of stables thereon, and afterwards conveyed 
 the residue of the parcel to defendant's grantor, subject to the same 
 restrictive covenants, it was held that the covenants in the last 
 deed were for the benefit of the prior vendees, and that defendant 
 could be enjoined from erecting a stable on the land conveyed to 
 him. 7 Where, however, it appeared in such a case that defendant's 
 stable had been completed, and that the building on plaintiff's 
 lot was an apartment house and not his home, it was decided that 
 the injunction would be vacated on the defendant's paying the 
 damages caused to plaintiff's property. 8 
 
 § 475. Though covenant does not run with land. — Where a 
 
 grantee binds himself by a covenant in the deed to him, limiting 
 
 (N. Y.) 448, 104 N. Y. Supp. 1028; 
 Adams v. Howell, 108 N. Y. Supp. 
 945. 
 
 7. Equitable Life Ass. Society v. 
 Brennan, 24 N. Y. Supp. 784. In 
 Trustees v. Lynch, 70 N. Y. 440, 447, 
 Allen, J., said: "An easement in 
 favor of and for the benefit of lands 
 owned by third persons can be created 
 by grant, and a covenant by the 
 owner upon a good consideration, to 
 use, or to refrain from using, his 
 premises in a particular manner, for 
 the benefit of premises owned by the 
 covenantor, is, in effect, the grant of 
 an easement, and the right to the 
 enjoyment of it will pass as appur- 
 tenant to the premises, in respect of 
 which it was created. Reciprocal 
 easements of this character may be 
 created upon the division and con- 
 veyances in severalty to different 
 grantees of an entire tract, and they 
 may be created by a reservation in a 
 conveyance, by a condition annexed to 
 a grant, or of a covenant, and even 
 a parol agreement of the grantees. 
 Curtiss v. Ayrault, 47 N. Y. 73; Tall- 
 
 madge v. Bank, 26 N. Y. 105; Gibert 
 v. Peteler, 38 Barb. 488, aff'd 
 38 N. Y. 165." See, also, Post 
 v. Weil, 115 N. Y. 361, 23 N. 
 E. 145. See, also, on the same 
 point the leading New York case of 
 Barrow v. Richard, 8 Paige, 351, or 
 Barron v. Richard, 3 Edw. Ch. 96; 
 Brouwer v. Jones, 23 Barb. 153; 
 Raynor v. Lyon, 46 Hun, 227; Lat- 
 timer v. Livermore, 72 N. Y. 174 
 Clark v. Martin, 49 Pa. St. 289 
 Thruston v. Minke, 32 Md. 487 
 Greene v. Creighton, 7 R. I. 1 
 Parker v. Nightingale, 6 Allen, 341 
 Catt v. Tourle, L. R. 4 Ch. App. 654 
 Whitney v. Railroad Co., 11 Gray, 
 359. 
 
 8. Equitable Life Ass. Society v. 
 Brennan, 24 N. Y. Supp. 784. See 
 also on this point Madison Ave., etc., 
 Church v. Baptist Church, 73 N. Y. 
 82, 85; Willard v. Tayloe, 8 Wall. 
 557, 19 L. Ed. 501; Amerman v. 
 Deane, 132 N. Y. 355, 30 N. E. 741 ; 
 Peppenheim v. Metropolitan El. Ry. 
 Co., 128 N. Y. 436, 444, 28 N. E. 
 518. See, also, § 11, ante. 
 
 721 
 
 46
 
 § 476 Relating to Restrictive Covenants. 
 
 the use of the land purchased in a particular manner so as not to 
 interfere with the trade or business of the grantor, and the cove- 
 nant is valid as between the parries, it may also be enforced against 
 a grantee of the covenantor taking title with notice of the restric- 
 tion, even though the covenant be not one technically running with 
 the land f and though the assignees of the covenantor be not named 
 or referred to in the deed. 10 Where a covenant concerns land and 
 is capable of being annexed to the estate, and it appears by the 
 instrument that such was the intention of the parties, it is to be 
 construed as 1 running with and charging the land into whatever 
 hands the title to it may devolve. 11 
 
 § 476. Form of covenant not essential. — The rule uniformly 
 followed in New Jersey is that where a grantor retaining a por- 
 tion of thei land out of which the grant is made, enters into an 
 express written understanding with his gcantee, whatever may be 
 its form, whether covenant, condition, reservation or exception, 
 which restricts the enjoyment of the portion of the land which is 
 conveyed in order to benefit the portion retained, if the 
 restriction is reasonable and consonant with public policy, whether 
 it runs with the land and is binding at law or not, it will be 
 enforced in equity against the grantee and any one subsequently 
 
 0. Hodge v. Sloan, 107 N. Y. 244, Either a mandatory or pro- 
 
 17 N. E. 335, per Danforth, J.: "In hibitory injunction may be issued 
 
 order to uphold the liability of the against a purchaser with notice of 
 
 successor in title it is not necessary the covenant. Cumberland Valley 
 
 that the covenant should be one tech- R. Co. v. Gettysburg & II. R. Co., 177 
 
 nically attaching to and concerning Pa. St. 519, 35 Atl. 952. 
 
 the land and so running with the 10. Morland v. Cook, L. R. 6 Eq. 
 
 title. It is enough that the purchaser 252. 
 
 has notice of it" — citing Tulk v. 11. Mott v. Oppenheimer, 135 N. 
 Moxhay, 11 Beav. 571; Tallmadge v. Y. 312, 31 N. E. 1097, where a cove- 
 East Riv. Bank, 26 N. Y. 105; Trus- nant in respect to payment of party 
 tees v. Lynch, 70 N. Y. 440; Carter wall was made to run with the land 
 v. Williams, L. R. 9 Eq. 678; Parker by force of its express terms. In 
 v. Nightingale, 6 Allen (Mass.), 341; Hart v. Lyon, 90 N. Y. 663, the con- 
 Burbank v. Pillsbury, 48 N. H. 475; tract for the party wall was held not 
 Brown v. Great East. R. Co., L. R. to be enforceable against a purchaser 
 2 Q. B. D. 406; London, etc., R. Co. at a sale in foreclosure as being 
 v. Gomm, L. R. 20 Ch. D. 562. merely a personal obligation ; but the 
 
 722
 
 Relating to Restrictive Covenants. 
 
 §476 
 
 acquiring title to the land with notice of it, at the instance of the 
 grantor, or of the subsequent owner or owners of parts of the 
 remaining land, when its violation results in material detriment to 
 the portion of the remaining land which the complainant in the 
 suit for its enforcement holds. And where such express under- 
 standing is incorporated in a deed which constitutes a muniment 
 of title to the land, the law conclusively charges each subsequent 
 holder of the title with notice of it. 12 And in a case in New York 
 
 covenant that the expense of repair- 
 ing or rebuilding the party wall 
 should be borne equally by the par- 
 ties, their heirs and assigns, was re- 
 garded as a covenant running with 
 the land. Compare, also, Scott v. 
 McMillan, 76 N. Y. 144; Cole v. 
 Hughes, 54 N. Y. 444. And see Se- 
 ball v. Mulholland, 26 N. Y. Supp. 
 913. 
 
 12. Ilayes v. Waverly & P. R. Co., 
 51 N. J. Eq. 345, 27 Atl. 648; Brewer 
 v. Marshall, 19 N. J. Eq. 537; Van 
 Doren v. Robinson, 16 N. J. Eq. 256; 
 Kirkpatrick v. Peshine, 24 N. J. Eq. 
 206; Gawtry v. Leland, 31 N. J. Eq. 
 385; Pope v. Bell, 35 N. J. Eq. 1; 
 Coudert v. Sayre, 46 N. J. Eq. 386, 
 19 Atl. 190; De Gray v. Monmouth 
 Beach C. H. Co., 50 N. J. Eq. 329, 
 24 Atl. 388. In Hayes v. Waverly P. 
 R. Co., supra, McGill, Ch., said: 
 "The principle upon which jurisdic- 
 tion in such cases is assumed clearly 
 appears in the following extract 
 from the opinion of Lord Cottenham 
 in Tulk v. Moxhay, 2 Phil. Ch. 774, 
 the leading case upon this subject: 
 'That this court has jurisdiction to 
 enforce a contract between the owner 
 of land and his neighbor purchasing 
 a part of it, that the latter shall 
 either use or abstain from using the 
 land purchased in a particular way, 
 is what I never knew disputed. Here 
 there is no question about the con- 
 
 tract. The owner of certain houses 
 in the square sells the land adjoin- 
 ing, with a covenant from the pur- 
 chaser not to use it for any other 
 purpose than as a square garden; 
 and it is now contended, not that the 
 vendee could violate that contract, 
 but that he might sell the piece of 
 land and that the purchaser from 
 him may violate it without this court 
 having any power to interfere. If 
 that were so, it would be impossible 
 for an owner of land to sell part of 
 it without incurring the risk of ren- 
 dering what he retains worthless. 
 It is said that the covenant, being 
 one which does not run with the 
 land, tliis court cannot enforce it. 
 But the question is not whether the 
 covenant runs with the land, but 
 whether a party shall be permitted 
 to use the land in a manner incon- 
 sistent with the contract entered into 
 by his vendor, and with notice of 
 which he purchased. Of course the 
 price should be affected by the cove- 
 nant, and nothing could be more in- 
 equitable than that the original pur- 
 chaser should be able to sell the 
 property the next day for a greater 
 price, in consideration of the assignee 
 being allowed to escape from the lia- 
 bility which he had himself under- 
 taken. That the question does not 
 depend upon whether the covenant 
 runs with the land is evident from 
 
 723
 
 S477 
 
 Relating to Restrictive Covenants. 
 
 it is decided that even if an action of covenant will not lie by the 
 grantee because the deed was not sealed by him, a court of equity 
 will restrain a grantee, or those claiming under him, from doing 
 that which he has agreed not to do, by the deed accepted by him. 
 The agreement qualifies and attaches itself to the estate which he 
 takes, and all persons claiming under his deed are charged with 
 notice of the agreement and are bound by it. 13 
 
 § 477. Though covenant not in writing. — The equity resulting 
 from a valid agreement by the owner of land restricting its use, 
 though not a covenant running with the land or a legal exception 
 or reservation out of it, but merely a personal contract, goes with 
 the land into the hands of a purchaser from such owner who did 
 not buy in good faith, but with notice, and may be enforced by in- 
 junction, and it is not essential that the agreement should be in 
 writing or be binding at law, or that any priority of estate should 
 exist between the parties. 14 But in case of an injunction to re- 
 
 this: that if there was a mere agree- 
 ment and no covenant, this court 
 would enforce it against the party 
 purchasing with notice of it; for, if 
 an equity is attached to the property 
 by the owner, no one purchasing with 
 notice of that equity can stand in a 
 different situation from the party 
 from whom he purchased.' " 
 
 13. Atlantic Dock Co. v. Leavitt, 
 54 N. Y. 35, 13 Am. Rep. 556. 
 
 14. G., having a contract for the 
 purchase of land on which to erect 
 flats in the rear of houses owned by 
 plaintiff and others, in consideration 
 of a large advance on his contract 
 price transferred the contract to 
 them, and agreed with plaintiff that 
 he would not erect any flats in the 
 immediate neighborhood. Soon after- 
 wards he purchased other land in the 
 vicinity, which, after commencing 
 the erection of flats thereon, he 
 transferred for a valuable considera- 
 
 tion to his wife, who took with full 
 notice of G.'s agreement with plain- 
 tiff, hut continued the erection of 
 the buildings. Held, that plaintiff 
 was entitled to an injunction to pre- 
 vent their erection, though the agree- 
 ment of G. was a mere personal 
 agreement, not relating to any spe- 
 cific land, and that it did impose a 
 covenant or equity which could be 
 enforced against a subsequent 
 grantee from him, with notice of the 
 agreement. Lewis v. Gollner, 129 N. 
 Y. 227, 29 N. E. 81, reversing 14 N. 
 Y. Supp. 362. On the appeal, Finch, 
 J., said: "It has been held that the 
 equity resulting from a valid agree- 
 ment, though the latter was not a 
 covenant running with the land but 
 stood solely upon the ground of a 
 personal contract dictating the mode 
 of user, would nevertheless go with 
 the lands into the hands of a pur- 
 chaser with notice and who did not 
 
 724
 
 Relating to Restrictive Covenants. £ 47S 
 
 strain a violation of an oral agreement as to the use and occupation 
 of land it is said to be the settled doctrine that courts of equity 
 will refuse such relief when it will result in great hardship and 
 injustice to one party without considerable gain or utility to the 
 other. 15 
 
 § 478. How statute of frauds affects oral covenants. — The 
 
 agreement not to use certain land conveyed for a particular pur- 
 pose, is not an agreement for the sale of an interest in or concern- 
 ing land, which is void under the statute of frauds if not in 
 writing, nor is it an agreement not to be performed within one 
 year, which is void under the statute if not in writing. 16 In an 
 action to enforce by injunction an oral agreement to sell land, if 
 acts or part performance are -relied upon to take the case out of 
 the statute of frauds, they must be unequivocally referable to the 
 agreement and must change the relative position of the parties. 17 
 Thus where the land in controversy is a farm of which complain- 
 ant has the present use, and the acts upon which he relies as in 
 part performance of the oral agreement may be considered as acts 
 of good husbandry, and incidental to his use of the farm and to his 
 
 buy innocently and in good faith. sound and just." 
 
 Whitney v. Union R. Co., 11 Gray, 15. Bimson v. Bultman, 3 App. 
 
 363. In Hodge v. Sloan, we substan- Div. (N. Y.) 198, 38 N. Y. Supp. 
 
 tially affirmed that doctrine, holding 209. 
 
 that a purchaser without restriction 16. Bostwick v. Leach, 3 Day 
 
 in his deed, but from one who was (Conn.), 476; Hall v. Solomon, 61 
 
 restricted by a personal covenant, Conn. 476, 23 Atl. 876, per Carpen- 
 
 not running with the land or bind- ter, J.: "It has been pretty uni- 
 
 ing his assigns, yet with notice of the formly held that contracts which 
 
 facts, is bound by the restriction in may be performed within one year 
 
 a court of equity. ... In Parker are not within the statute. Peters 
 
 v. Nightingale, 6 Allen, 344, it is de- v. Westborough, 19 Pick. (Mass.) 
 
 clared not to be in the least material 364; Roberts v. Rockbottom Co., 7 
 
 that the restrictive stipulations Met. (Mass.) 46; Lyon v. King, 11 
 
 should be binding at law, or that any Met. (Mass.) 411; Doyle v. Dixon, 
 
 privity of estate should subsist be- 97 Mass. 212." 
 
 tween parties in order to render 17. Nibert v. Baghurst, 47 N. J. 
 
 them obligatory and to warrant Eq. 201, 20 Atl. 252. See Neibert v. 
 
 equitable relief in case of their in- Baghurst, 25 Atl. 474; Maddison v. 
 
 fraction. I think that doctrine is Alderson, L. R. 8 App. Cas. 467. 
 
 725
 
 § 479 Relating to Restrictive Covenants. 
 
 ownership of adjoining land, they do not constitute such acts of 
 part performance as will take the case out of the statute of frauds. 18 
 An agreement, however, to locate a mining claim for the benefit of 
 another need not be in writing. If a party in pursuance of such 
 an understanding locates the claim in his own name at the expense 
 of another, he holds the legal title to the ground in trust for the 
 benefit of the party for whom the location was made; and the 
 beneficiary could, upon making the necessary proofs, compel the 
 locator of the mining claim to convey the title to him, though the 
 agreement so to do was not in writing. This familiar principle 
 has often been applied in cases where a party has entered into an 
 oral agreement to locate mining ground for the joint benefit of 
 himself and others and makes a location in his own name. It lias 
 always been held that such oral agreements are not within the 
 statute of frauds. 1 ' 
 
 § 479. As between successors to title. — Courts of equity will 
 recognize and enforce agreements made by ajoining proprietors 
 concerning the occupation and mode of use of their lands, not 
 only as between the parties to the contract, but as between their 
 vendees with notice. And to warrant equitable relief in such cases, 
 it is not material that the agreement be binding, as a covenant 
 running with the land, or that any privity of estate subsist between 
 the parties. 20 Thus where adjacent proprietors by mutual agree- 
 ment establish the boundaries of a private way and appropriate 
 the strip of land embraced therein as a perpetual easement for 
 the common benefit of all, the agreement may be enforced by 
 
 18. Barrett v. Geisinger, 148 111. The violation of a negative 
 
 98, 35 N. E. 354. easement may be restrained by one 
 
 19. Book v. Justice Mining Co., who owns property for the benefit 
 58 Fed. 106; Moritz v. Lavelle, 77 of which it was created, irrespective 
 Cat. 10; Gore v. McBrayer, 18 Cal. of whether there was a privity of es- 
 582; Hirbour v. Heeding, 3 Mont. tate or contract between the parties 
 13; Welland v. Huber, 8 Nev. 203. or whether an action at law is main- 
 
 20. Parker v. Nightingale, 6 Al- tainable. Silberman v. Uhrlaub. 116 
 len (Mass.), 341; Western v. Mac- App. Div. (N. Y.) 869, 102 N. Y. 
 Dermott, L. B. 2 Ch. App. 72; Tulk Supp. 299. 
 
 v. Moxhay, 2 Phil. Ch. 774. 
 
 726
 
 Relating to Restrictive Covenants. § 480 
 
 injunction at the suit of a purchaser from one of such proprietors, 
 against a purchaser with notice from another. 21 And where the 
 owner of lots in the city of New York on both sides of a street 
 made a plan exhibiting the street as widened eight feet on each 
 side, and represented to several vendees of different lots that all 
 the buildings to be erected on the lots he had sold, or should sell, 
 should stand back eight feet from the line of the street, it was 
 decided that a subsequent purchaser of one of the lots, with con- 
 structive notice of the facts, would be restrained from building on 
 the eight feet adjoining the street. 22 A proviso in a deed that no 
 mine or air shaft shall be intentionally opened by the grantors or 
 any mining fixtures established on the surface of land conveyed 
 to a land and improvement company, has been held to operate in 
 the nature of a covenant running with the land prohibiting the 
 grantors, their heirs and assigns from opening any mine or air 
 shaft or from establishing fixtures on the surface of such land, 
 which covenant, a court of equity will enjoin a mining company, 
 which purchased the rights of the grantors, from violating. 23 
 
 §480. Restrictions as to buildings; though no damage. — 
 Where land is conveyed by a deed containing restrictions as to 
 the class or character of buildings which may be erected thereon, 
 a court of equity will grant an injunction to prevent a. violation 
 of such restriction. 24 So a breach of a covenant as to the height 
 
 21. Shields v. Titus, 46 Ohio St. 22. Tallmadge v. East River Bank, 
 
 628, 22 N. E. 717. It was held in 26 N. Y. 105; Barrow v. Richard, 8 
 
 Seegar v. Harrison, 25 Ohio St. 14, Paige, 351; Hill v. Miller, 3 Paige, 
 
 that where the owners of adjacent 254. See, also, Rankin v. Huskisson, 
 
 lands agreed that each would appro- 4 Sim. 13; Whatman v. Gibson, 9 
 
 priate from his land a strip to be Sim. 190; Schreiber v. Creed, 10 
 
 used in common for a public street, Sim. 9. 
 
 and conveyances and improvements 2.3. Electric City Land &. S. Co. ▼. 
 
 have been made on the faith that the West Ridge Coal Co., 187 Pa. St. 
 
 street would be opened, the agree- 500, 41 Atl. 458. 
 
 ment may be enforced in equity, 24. Meriwether ▼. Joy, 85 Mo. 
 
 against a purchaser with notice, App. 634; Meigs v. Milligan. 177 
 
 whether the public authorities ac- Pa. St. 66, 35 Atl. 600; Muzzarelli 
 
 cept the street as dedicated to public v. Hulshizer, 163 Pa. St. 643, 30 
 
 use or not. Atl. 291. 
 
 727
 
 § 480 Relating to Restrictive Covenants. 
 
 of a building may be enjoined. 25 And the erection, in violation of 
 restrictions, of buildings upon land dedicated for a public park 
 may be enjoined. 26 And where a building is erected with projec- 
 tions in violation of a building restriction, a mandatory injunction 
 may be granted for the removal of such projections. 27 A grantee 
 may also be enjoined from violating a covenant not to build on the 
 land conveyed to him a dwelling of less than a specified value. 28 
 And a covenantor may be compelled to keep the spirit of his cove- 
 nant and not merely its letter. 29 So where land was conveyed with 
 ai restriction against the erection of buildings, except dwellings not 
 to cost less than a specified sum, and necessary outbuildings, and 
 the grantee put up on the land a tent of small cost for summer 
 use, and a stable to be used in connection with the tent or with a 
 house, should one ever be built, it was held that the tent was for- 
 bidden by the restriction, and that as there was no proper main 
 building, the stable was not a necessary outbuilding; and that, 
 therefore, the grantor could by injunction compel their removal, 
 and restrain the grantee from using his lot in the manner in which 
 he had been using it. 30 And where on a sale of contiguous lots the 
 grantor and grantees covenanted that each of the lots should be 
 subject to a restriction that none of them should be used for pur- 
 poses other than a " dwelling house, office or stable," the erection 
 of a church on one of the lots was enjoined, as the intention of the 
 covenant was to prevent the erection of buildingsi of public resort, 
 and if a church could not be prevented in the first instance, it 
 might afterwards be converted into a theater or a hippodrome. 31 
 
 25. Brown v. O'Brien, 168 Mass. bay windows were buildings within 
 484, 47 N. E. 195. the meaning of the covenant. 
 
 26. Chicago v. Ward, 169 111. 392, 30. Blakemore v. Stanley, 159 
 43 N. E. 927, 38 L. R. A. 849. Mass. 6, 33 N. E. 689. That the 
 
 27. Attorney-General v. Algonquin tent was a building, within the scope 
 Club, 153 Mass. 447, 27 N. E. 1, 11 of the restriction, see Nowell v. 
 L. R. A. 500. See Morrow v. Hassel- Boston Academy, 130 Mass. 209. 
 man (N. J. Ch. 1905), 61 Atl. 369. That an outbuilding must be used in 
 
 28. Collins v. Castle, L. R. 36 Ch. connection with a main building, see 
 D. 243; Nottingham Patent, etc., Commonwealth v. Intoxicating Li- 
 Co. v. Butler, 16 Q. B. D. 778. quors, 140 Mass. 287, 289, 3 N. E. 4. 
 
 29. Manners v. Johnson, L. R. 1 31. St. Andrew's Church's Appeal, 
 Ch. D. 673, where it was held that 67 Pa. St. 512. 
 
 728
 
 Relating to Restrictive Covenants. § 481 
 
 It has also been held that in such a case the amount of damage 
 plaintiff might suffer from the threatened breach ought not to enter 
 as an element into the determination, as there was a manifest 
 distinction between cases depending on nuisance and on contract. 32 
 
 §481. Covenant against tenement houses; dwellings only. — 
 The question whether apartment houses or " flats " are " tenement 
 houses " within the meaning of an agreement not to erect on cer- 
 tain premises " any house of the character or description commonly 
 known as ' tenement houses/ " is not so reasonably free from doubt 
 as to authorize a preliminary injunction in an action to restrain 
 the erection of " flats " on such premises. 33 And it is proper to 
 refuse an injunction in such a case where owing to a change in 
 the locality as to the character of building erected it is inapplicable 
 or unjust to enforce the covenant. 34 And the injunction 
 is properly denied on the defendant's explicit and well-supported 
 allegation that the building he is erecting will not be a tenement 
 house. 35 But flats and tenement houses may be classed together 
 as opposed to private dwellings, and as bringing together a chang- 
 ing and floating population under one roof, and experience teaches 
 that cheap flats may be so badly managed as to be quite as un- 
 aristocratie as tenement houses. 36 
 
 32. Hills v. Miller, 3 Paige (N. to restrain the erection of a tene- 
 
 Y.), 254; Attorney-General v. Rail- ment, instead of a private residence, 
 
 way Companies, L. R. 3 Ch. App. in violation of a contract, defendant 
 
 100; Collins v. Castle, L. R. 36 Ch. denied that the house to be erected 
 
 D. 243. was intended to be a tenement, and 
 
 Such a covenant may be enforced positively testified that the same 
 without regard to the question of re- would be permanently occupied by 
 suiting damage. Trustees v. Lynch, herself and family as a private resi- 
 70 N. Y. 440; Staines v. Dorman, 25 dence, and was designed for that pur- 
 Ohio St. 580; Commonwealth v. pose, her testimony being supported 
 Railroad Co., 24 Pa. St. 160; Dick- by affidavits of her architect and 
 inson v. Canal Co., 15 Beav. 260. others. Held, that an order denying 
 
 .33. Boyd v. Kerwin (Sup.), 15 N. the injunction was properly made. 
 
 Y. Supp. 721. And see Musgrave v. Grenell v. Stillwell, 14 N. Y. Supp. 
 
 Sherwood, 23 Hun (N. Y), 674. 262. 
 
 34. McClure v. Leaycraft, 183 N. 36. Lewis v. Gollner, 129 N. Y. 
 Y. 36, 75 N. E. 961. 227, 29 N. E. 81. See, also, Amer- 
 
 35. In an action for an injunction man v. Deane, 132 N. Y. 355, 30 N. 
 
 729
 
 §§ 481a, 482 Relating to Restrictive Covenants. 
 
 § 481a. Restrictions as to use of premises — Where property 
 conveyed is restricted in respect to its use it is a general rule that 
 a court of equity will enjoin a breach of such restriction. 37 And 
 the fact that there may have been some occasional violations of 
 such a restriction on other property similarly restricted will not 
 prevent the granting of the injunction where such violations were 
 not acquiesced in. 37a And the causing of a substantial injury is not 
 essential to the granting of an injunction in this class of cases. 37b 
 The proper use of premises, however, for a certain business in 
 accordance with the intention of both parties at the time of the 
 execution of a lease will not be enjoined as in violation of a cove- 
 nant that the premises shall not be used by the lessee in any 
 unlawful, improper or offensive manner. 38 
 
 § 482. Covenant not to sell liquors. — Injunction is the proper 
 remedy to restrain the breach of a contract not to sell intoxicating 
 liquors upon the granted premises, in less quantities than five 
 gallons. Such a restriction is not a general, but only a limited and 
 reasonable restraint of trade. It may also be a covenant running 
 with the land, and therefore effectual against a tenant or assignee 
 of the vendee having notice of it. 39 So where a deed contains a 
 restrictive clause providing that the premises conveyed shall not 
 be used by the grantee for saloon purposes so long as the adjoining 
 property is owned by the grantor, equity will enjoin the grantee 
 or those holding as subsequent grantees from a breach thereof. 40 
 
 E. 741, where the court did not un- 37a. De Lima v. Mitchell, 49 Mi3c. 
 
 dertake to distinguish a flat from a R. (N. Y.) 171, 1)8 N. Y. Supp. 811. 
 
 tenement-house. 37b. Star Brewery Co. v. Primas, 
 
 37. Bayard v. Bancroft (Del. Ch. 163 111. 652, 45 N. E. 145. See Cor- 
 
 1905), 62 Atl. 6; Star Brewing Co. nish v. Wiessman, 56 N. J. Eq. 610, 
 
 v. Primas, 163 III. 652, 45 N. E. 145; 35 Atl. 408, holding that a possibil- 
 
 Bryden v. Northrup, 58 111. App. 233; ity of damage is sunicient. 
 
 Hills v. Metzenroth, 173 Mass. 423, 38. Browne v. Niles, 165 Mass. 
 
 53 N. E. 890; Dorr v. Harralian, 101 276, 43 N. E. 90. 
 
 Mass. 531 ; De Lima v. Mitchell, 49 39. Sutton v. Head, 86 Ky. 156, 5 
 
 Misc. R. (N. Y.) 171, 98 N. Y. Supp. S. W. 410. See, also, Turner v. 
 
 811; Schenck v. Campbell, 11 Abb. Johnson, 7 Dana (Ky.) 435; Reilly 
 
 Pr. (N. Y.) 292. See, also, follow- v. Otto, 108 Mich. 330, 66 N. W. 228. 
 
 ing section. 40. Star Brewery Co. v. Primas, 
 
 163 111. 652, 45 N. E. 145. 
 
 730
 
 Relating to Restkictive Covenants. § 483 
 
 And it has been decided that in an action by the grantors of cer- 
 tain premises, to restrain a grantee from using it for a saloon, or 
 for the sale of intoxicating liquor, under a parol agreement to that 
 effect, an injunction against the grantee will lie on account of a 
 lease made on condition that the lessee secure a license, though the 
 lessee after he had taken possession and the license had been 
 granted, never called or paid for the license, nor paid rent to the 
 lessor. 41 The grantor, cannot, however, enjoin the sale of intoxi- 
 cants on a lot which he conveyed on the express condition that they 
 should never be sold thereon, where he subsequently conveyed the 
 adjoining lot without such restriction, and intoxicants are sold on 
 it : and it is no answer that the omission of the restriction from 
 the subsequent conveyance was a mistake, if he took no steps to 
 correct it. 42 
 
 § 483. Enjoining vendor from breach of covenants. — A vendor 
 also may be enjoined from a breach of covenants he has inserted 
 in a conveyance of land, or made in reference thereto. Thus a 
 grantee of a lot adjoining a public square, who has a special cove- 
 nant from the original owner of the square, that it shall be kept 
 open for the benefit of his lot, may have an injunction to prevent 
 the grantor from violating the covenant, and such a covenant runs 
 with the land, and without any special assignment of it, passes to 
 a subsequent grantee of the premises. 43 
 
 41. Hall v. Solomon, 61 Conn. 476, right afterwards to sell an adjoining 
 23 Atl. 876. lot without restriction, and thereby 
 
 42. Jenks v. Pawlowski, 98 Mich. diminish the value of his former 
 110, 56 N. W. 1105, per McGrath, J.: grantee's property, and still be al- 
 " Restrictions of this class are sus- lowed to insist upon the restriction, 
 tained upon the theory that a party Chippewa Lumber Co. v. Tremper, 75 
 has the right, in disposing of his Mich. 36, 42 N. W. 532." 
 property, to prevent such a use by 43. Trustees, etc., v. Cowen, 4 
 the grantee as might diminish the Paige (N. Y.), 510, per Walworth, 
 value of remaining land, or impair Ch.: "The covenant in the convey- 
 its eligibility for other uses. Wat- ance to Hersey, not to erect, or suf- 
 rous v. Allen, 57 Mich. 362; Smith v. fer to be erected, any building on the 
 Barrie, 56 Mich. 314. But is there street, highwpy, or common, owned 
 no mutuality in such agreement? It by the grantor, in front of the prem- 
 cannot be said that a grantor has a ises conveyed, was a covenant running 
 
 731
 
 §§ 483a, 484 Relating to Restrictive Covenants. 
 
 § 483a. Same subject; tract of land divided into lots. — Where 
 the owner of a tract of land lays it out into blocks, lots and streets 
 upon a map and then sells lots by reference to the map he becomes 
 "bound to the grantees not to use the portion so devoted to the 
 common advantage otherwise than in the manner indicated. 44 So 
 where property has been sold under such conditions an attempt of 
 the grantor to alter the location and narrow the width of the streets 
 delineated on the map is an infringement of the rights of a grantee 
 which entitles him to the aid of a court of equity by way of in- 
 junction to restrain a violation of the implied covenant. 45 In such 
 a case, however, there is held to be no implied covenant that the 
 owner of the lots will sell them in the parcels' indicated on the 
 map and that he will not be enjoined from selling them in such 
 parcels as he sees fit or from devoting any part of the unsold lots 
 to public uses either as streets, parks, or in other modes of a gen- 
 eral nature calculated to give additional value to the rest of the 
 tract. 46 In this connection it is also decided that there is a differ- 
 ence between cases where a restriction is only intended for the 
 benefit of the grantor, and those where it is imposed upon the 
 lands as a part of a general scheme affecting the entire tract 
 divided into parcels for the benefit of the part conveyed as well as 
 the part reserved. In the latter case the restriction may be enforced 
 by the owner of any parcel against every other owner. 47 
 
 § 484. Lessees' covenants. — The breach by a tenant of the 
 covenants of his lease or his contract, limiting the use of the de- 
 mised premises, will be freely enjoined. Thus a covenant in a 
 
 with the land. It was the grant of a Hills v. Miller, 3 Paige (N. Y.), 
 
 privilege or easement which passed 254." 
 
 to White under the conveyance from 44. Lenning v. Ocean City Assn., 
 
 Hersey to him; and no separate as- 41 N. J. Eq. 606, 7 Atl. 491, 56 Am. 
 
 signment of the covenant was neces- Rep. 616. 
 
 sary to transfer all Hersey's interest 45. Herold v. Columbia Inv. & R. 
 
 therein. And this court has already E. Co. (N. J. 1907), 67 Atl. 607. 
 
 decided that the grantee of such an 46. Herold v. Columbia Inv. & R. 
 
 easement is entitled to an injunction E. Co. (N. J. 1907), 67 Atl. 607. 
 
 to restrain the owner of the servient 47. Silberman v. Uhrlaub, 116 
 
 tenement from erecting buildings App. Div. (N. Y.) 869, 102 N. Y. 
 
 thereon in violation of his covenant. Supp. 299. 
 
 732
 
 Relating to Restrictive Covenants. § 484 
 
 lease, restricting the use of the demised store for the purpose of 
 the dry goods jobbing business, will be enforced by injunction, 
 though no irreparable injury to plaintiff be shown. 48 And it is no 
 defense to an action to enjoin a use of premises in violation of a 
 covenant in a lease that the prohibited use will not deteriorate the 
 premises in value. 49 And where the owner of two rural lots on a 
 river, had his family mansion on one and sold the other, with a 
 covenant that it should not be used for any purpose offensive to 
 the grantor, or that would deteriorate his adjoining premises, and 
 the purchaser leased his lot for the purpose of a wharf and a rail- 
 road, it was held that the construction of the wharf could be en- 
 joined, as it would draw nocturnal debauchers rambling by water 
 from a neighboring city. b0 Again where a land owner in Ireland let 
 a few acres of land to a Catholic bishop, in order to provide a 
 suitable residence and holding for the officiating clergyman ap- 
 pointed by the bishop, it was held, upon the true construction of 
 the agreement, which was rather informal, that the erection upon 
 the land of wooden huts, as a shelter for evicted tenants, was an 
 application of the premises to a purpose other than the specified 
 one, and that the owner was entitled to have it restrained by in- 
 junction. 51 And where a conveyance, by plaintiff, of a dwelling 
 house and shop, contained a covenant that the grantee, his heirs 
 or assigns, would not use the same for the sale of spirituous liquors, 
 it was held that a tenant of the grantee was fixed with constructive 
 notice of the covenant, and could be enjoined from selling spirits 
 
 48. Steward v. Winters, 4 Sandf. break up meadow land, will be 
 Ch. (N. Y.) 587.. where defendant enforced by injunction where he is 
 was enjoined from carrying on the about to build thereon. DeWilton v. 
 auction business in a store leased Saxon, 6 Ves. 106. 
 
 only for dry goods jobbing. A restriction against mowing 
 
 49. Dodge v. Lambert, 15 N. Y. will be enforced by injunction. 
 Super. Ct. 570. Blagrave v. Blagrave, 1 DeG. & S. 
 
 50. Seymour v. McDonald, 4 252. 
 
 Sandf. Ch. (N. Y.) 502; Hills v. A lessee who has agreed not 
 
 Miller, 3 Paige (N. Y.), 254. to nse demised premises for any 
 
 51. Kehoe v. Marquess of Lans- purpose of business, may be en- 
 downe (1893), App. Cas. 451; aff'g joined from carrying on a school 
 29 L. R. Ir. 230. there. Kemp v. Sober, 1 Sim. N. S. 
 
 A tenant's covenant not to 520. 
 
 733
 
 § 485 Relating to Restrictive Covenants. 
 
 on the premises. 52 And a covenant that the demised premises shall 
 not be used for any purpose which may cause annoyance or dam- 
 age to the lessor, or to his neighbors, will be enforced by injunction 
 where the premises are being used as a hospital for the treatment 
 of contagious diseases. 53 And where the lease contains a covenant 
 that no business shall be conducted on the demised premises, the 
 use of them for a hospital where poor patients pay according to 
 their means will be enjoined ; 54 and so will the use of them for a 
 school. 55 Where a lease of certain land with the mill thereon, gave 
 the lessee the privilege of using all the timber on the leased land, 
 with the restriction that all the valuable timber be used only for 
 mill purposes, it was held that the lessee was not restricted to the 
 use of the land only for the purposes of the mill. 56 
 
 § 485. Same subject. — Where a lessee covenants not to affix 
 or permit any outward mark or show of business on the demised 
 premises, he may be restrained by injunction from a violation of 
 the covenant, 57 and such an injunction may run not only against 
 an offending sub-lessee, but also against the original lessee, if he 
 has not parted with his entire interest in or control of the prem- 
 ises, 55 or if he justifies the acts of the sub-lessee. 59 A lessee will 
 not, however, be enjoined where his contract with the lessor is so 
 oppressive and unjust that a court of equity ought not to interpose 
 for its enforcement. 60 And a covenant in a lease by the lessee for 
 
 52. Feilden v. Slater, L. R. 7 Eq. junction from being used for a beer 
 523. See, also, Sutton v. Head, 86 establishment. 
 
 Ky. 156, 5 S. W. 410. 57. Evans v. Davis, L. R. 10 Ch. 
 
 53. Tod-Heatly v. Benham, L. R. D. 747. 
 
 40 Ch. D. 80; Bramwell v. Lacy, L. 58. See Clements v. Welles, L. R. 
 
 R. 10 Ch. D. 691. And see Barret v. 1 Eq. 200. 
 
 Blagrave, 5 Ves. 555. 59. See Bowes v. Law, L. R. 9 
 
 54. Bramwell v. Lacy, L. R. 10 Ch. Eq. 636. 
 
 D. 691. 60. Talbot v. Ford, 13 Sim. 173, 
 
 55. Kemp v. Sober, 1 Sim. N. S. per Vice Ch.: "The covenant en- 
 520. ables the lessor, at any time, to put 
 
 56. Reed v. Lewis, 74 Ind. 433. a ne amoveas upon the lessee's stock 
 Compare Maddox v. White, 4 Md. in trade and other articles used by 
 72, where a building, which was let him in working the mines; that is, it 
 for a postoffice, was prevented by in- enables the lessor to defeat the ob- 
 
 734
 
 Relating to Restrictive Covenants. § 486 
 
 the benefit of the lessor only, and not for the benefit of adjacent 
 owners and adjacent property, will not be enforced for the benefit 
 of another lessee of adjoining property from the same lessor. 61 
 And where a lease was made with knowledge both on the part of 
 the lessor and of his grantor of the purpose for which the lessee 
 intended to use the premises, and he was assured by the agent of 
 the grantor that he would not be interfered with in the use in- 
 tended, it was decided that such use would not be enjoined as in 
 violation of a covenant in the deed from the grantor to the lessor 
 restricting the use of the premises for such a purpose. 62 
 
 § 486. Sub-lessees. — A sub-lessee will be enjoined from carry- 
 ing on an auction business in breach of a covenant in the original 
 lease, a knowledge of which he could easily have obtained by 
 inquiry. 63 And where a lease restricted the use of the demised 
 building to " the sale of teas, coffees and similar goods," and the 
 lessors consented to its use by a sub-lessee for the sale of music, 
 another sub-lessee who used it for the sale of misfit clothing was 
 enjoined at the suit of the original lessors. 64 The breach of a cove- 
 nant in a lease not to underlet, will also be enjoined when it 
 appears it would be impracticable to accurately ascertain the dam- 
 
 ject and intention of the lessee in sublet, without owner's consent, for a 
 taking the lease. . . . My opin- real estate office. Godfrey v. Black, 
 ion is that it is so oppressive to the 39 Kan. 193. In speaking of a re- 
 lessee that this court ought not to entry by the landlord, the court, in 
 give effect to it; and therefore I Bodwell v. Crawford, 26 Kan. 292, 
 shall not grant the injunction." said: "True he may perhaps de- 
 
 61. Master v. Hansard, L. R. 4 clare the lease forfeited and recover 
 Ch. D. 718. the property, but he may not desire 
 
 62. Woodliaven Junction Land Co. to do this; he may not be able to 
 v. Solly, 148 N. Y. 42, 42 N. E. 404. lease for the same rent, or to an 
 
 63. Parker v. Whyte, 32 L. J. Ch. equally responsible tenant, and the 
 520. See, also, Wilkinson v. Rogers, lessee ought not to be permitted to 
 12 Weekly Rep. 284, where a cove- compel the lessor either to take back 
 nant running with the land was held the property or tolerate a forbidden 
 to be binding on an assignee of the use." See, also, Stees v. Kranz, 32 
 lease and his sub-tenant. Also, Minn. 313 where a sub-lessee was en- 
 Clements v. Welles, L. R. 1 Eq. 200. joined from selling intoxicating li- 
 
 64. Wertheimer v. Hosmer, 83 quors in breach of a covenant in the 
 Mich. 56. The rule in the text was original lease. 
 
 applied where a part of a hotel was 
 
 735
 
 § 487 Relating to Restrictive Covenants. 
 
 ages caused by the breach, and no facts are shown which would 
 make it inequitable to enforce it. 60 
 
 § 487. Enjoining lessor from breach of covenants. — A lessor 
 also will be enjoined from violating his covenants inserted in a 
 lease for the benefit or protection of the lessee. This rule was 
 applied where the owner of a slaughter-yard, by his lease of 
 adjoining premises to a fertilizer, gave him the exclusive right to 
 take refuse from the slaughter-yard ; and was applied also against 
 another lessee of the original lessor, who had acquired his right 
 subsequent to and with notice of plaintiff's lease. 66 And where 
 a lease contains a covenant that the lessor will not rent the adjoin- 
 ing premises for the conduct of the same business as that in which 
 the lessee is engaged, an injunction may be granted to enforce the 
 covenant against the lessor and one who leased the premises with 
 notice of such covenant. 67 And a lessor will be enjoined from 
 erecting a structure on premises he has leased, in such a manner 
 as seriously to impair the lessee's use of the demised property. 08 
 And a covenant running with land, which gives a right of passage, 
 may be injunctively enforced by the lessee of the covenantee. 69 
 
 65. Sloan v. Martin, 54 N. Y. 67. Waldorf-Astoria Segar Co. v. 
 
 Super. 87. In Barrington Apartment Solomon, 109 App. Div. (N. Y.) 65, 
 
 Assn. v. Watson, 38 Hun, 545, plain- 95 N. Y. Supp. 1053 aff'd in 184 N. 
 
 tiff let to defendant Stewart an Y. 584, 77 N. E. 1197. 
 apartment, by a lease containing co- 68. Raband v. Frank, 7 Mo. App. 
 
 venants against subleasing without 64. A lessor will be enjoined from 
 
 plaintiff's written consent, and that cutting down, in violation of his cove- 
 
 for every subsequent assignment or nant, trees on his premises adjoining 
 
 letting the like consent of plaintiff the demised premises. Nicholson v. 
 
 should be obtained. Stewart, with Rose. 4 DeG. & J. 10. And may be 
 
 plaintiff's consent, sublet to Watson, required to execute a contract to lay 
 
 without any covenant against sublet- out a garden adjacent to the lessee's 
 
 ting. Watson, threatening to sublet club house. Rankin v. Huskisson, 4 
 
 to another who was objectionable to Sim. 13. And may be enjoined from 
 
 plaintiff, was enjoined, and the in- a breach of a covenant giving a lessee 
 
 junction sustained on appeal. an exclusive right of sale of certain 
 
 66. Manhattan Mfg. Co. v. N. J. goods. Altman v. Royal Aquarium 
 
 Stock Yard Co., 23 N. J. Eq. 161. Soc, L. R. 3 Ch. D. 228. 
 And see Rogers v. Danforth, 9 N. J. 69. Avery v. New York Central & 
 
 Eq. 289, 295. H. R. R. Co., 106 N. Y. 142, 155, 12 
 
 73G
 
 Relating to Restrictive Covenants. 
 
 §488 
 
 But a lessee must inquire into his lessor's title or take his own 
 risk that it is affected by inconvenient restrictions. 70 
 
 §488. Waiver of right to enjoin breach; acquiescence. — A 
 
 condition or limitation in respect to the erection of buildings or 
 restricting or limiting to particular uses the property conveyed 
 may be waived or abandoned by the subsequent conduct of the 
 grantor or the party or parties in whose favor the covenant 
 existed, so that a court of equity will not interfere to prevent its 
 violation. 71 So where a party has acquiesced in a breach of a cove- 
 nant running with land for a period less than is necessary to create 
 a bar by the statute of limitations, he may thereby disentitle him- 
 self to an injunction to prevent a continuance of the breach. 72 And 
 where a person buys land under a covenant to use it for certain 
 specific purposes, and no other, he will not be enjoined from using 
 it for other purposes, where plaintiff has permitted him to go on 
 without objection, and incur great expense in the erection of an 
 offending building or structure. 73 The right, however, to enforce 
 
 N. E. 619, per Peckham, J.: "The 
 grantors in these deeds were also the 
 owners of the hotel property, and the 
 easement provided for in the deeds 
 for the transit of passengers over this 
 twenty feet must he construed as re- 
 served not for the benefit of such pas- 
 sengers in any sense, but as an ease- 
 ment reserved for the benefit of the 
 grantors, being owners of the re- 
 maining hotel property, and as ap- 
 purtenant to it, and fairly necessary 
 for its full and proper enjoyment. It 
 therefore runs with the hotel prop- 
 erty and in favor of its owner or 
 lessee, the latter of whom has such 
 an interest in its existence as courts 
 will recognize and protect." 
 
 70. Parker v. Whyte, 1 Hem. & M. 
 167. 
 
 71. Kentucky. — Duncan v. Central 
 Pass. Ry. Co., 85 Ky. 525, 4 S. W. 
 228. 
 
 Massachusetts. — Scollard v. Nor- 
 mile, 181 Mass. 412, 63 N. E. 941; 
 Whitney v. Union Ry. Co., 11 Gray, 
 359, 71 Am. Dec. 715. 
 
 Neio Jersey. — Ocean City Assn. v. 
 Schurch, 57 N. J. Eq. 268, 41 Atl. 
 914; Trout v. Lucas, 54 N. J. Eq. 361, 
 3o Atl. 153. 
 
 ~New York. — Moore v. Murphy, 89 
 Hun, 175, 34 N. Y. Supp. 1130. 
 
 Pennsylvania. — Acheson v. Stev- 
 enson, 130 Pa. St. 633, 18 Atl. 873. 
 See, also, Gatzner v. St. Vincent 
 School Society, 147 Pa. St. 313, 23 
 Atl. 452. 
 
 72. St. Andrew's Church's Appeal, 
 67 Pa. St. 512, 519. There was a 
 query in this, how far a temporary 
 structure would constitute a breach 
 that must not be acquiesced in. 
 
 73. Orne v. Fridenberg, 143 Pa. 
 St. 487, 22 Atl. 832, per Paxson, C. 
 J. : " The plaintiff had only to look 
 
 737 
 
 47
 
 § 488a Relating to Restrictive Covenants. 
 
 a covenant is not affected by acquiescence in the violation of 
 another and distinct covenant in the same deed and as to the use 
 of the same lot. 74 And though a person may have lost a right by 
 acquiescence to enjoin the breach of a covenant forbidding the use 
 of land for manufacturing purposes yet he may be entitled to an 
 injunction to restrain an extension of such business, causing more 
 noise and vibration, it being declared that such acquiescence only 
 extends to the business as conducted in the past. 75 And a court 
 of equity will prevent a substantial violation of a building restric- 
 tion by a person though the complainant may have been guilty of 
 some unsubstantial violation on his part. 76 
 
 § 488a. Same subject; where complainant has violated restric- 
 tion. — An injunction will not be granted to the owner of land to 
 prevent a violation of a building restriction by the owner of ad- 
 joining land, where the property of bo'th is subject to the same 
 restriction and the complainant has himself violated it. 77 Su where 
 in a proceeding to obtain an injunction for violation of a restric- 
 tion as to buildings projecting over a building line, it appears that 
 both parties have violated the restriction, the court will not compel 
 
 out of his side windows to see the no such laches. See, also. Water Lot 
 
 erections in the yard, and the back Company v. Bucks, 5 Ga. 315. In 
 
 window on Chestnut street was Orne v. Fridenberg. supra, there 
 
 plainly before him every day as he would seem to have been an ac- 
 
 entered and left his own store. . . . quiescence in the breach for more 
 
 Where, therefore, plaintiff lies by , than twenty years. In Peek v. Mat- 
 
 for a period of four or five months thews, L. R. 3 Eq. 515, an injunc- 
 
 permitting defendants to go on with tion was denied to prevent a breach 
 
 their erections in disregard of the by one purchaser, because similar 
 
 covenant, he will be denied relief by breaches by other purchasers had 
 
 injunction; and where a vendor of been acquiesced in. 
 
 real property takes from each of sev- 74. Lattimer v. Livermore, 72 N. 
 
 eral purchasers a covenant that he Y. 174, 180; Western v. McDermot, 
 
 will leave unbuilt a certain portion L. R. 1 Eq. 499. 
 
 of the premises conveyed, he will not 75. Leaver v. Gorman (N. J. 
 
 be permitted to enjoin a breach of 1907), 67 Atl. 111. 
 
 this covenant by one of the purchas- 76. Adams v. Howell, 108 N. Y. 
 
 ers, when he has permitted prior Supp. 945, citing McGuire v. Caskey, 
 
 purchasers to violate it, without tak- 02 Ohio St. 419, 57 N. E. 53. 
 
 ing proceedings against them." Clark 77. Alvord v. Fletcher, 28 App. 
 
 v. Martin, 49 Pa. St. 289, is cited by Div. (N. Y.) 493, 51 N. Y. Supp. 117. 
 
 the court as a case where there was 
 
 738
 
 Relating to Restrictive Covenants. § 489 
 
 the defendant to move or alter his building at the instance of the 
 plaintiff. 78 And where under a building restriction in a deed a lot 
 enjoys the privilege of light and air from a second lot, and the 
 owner of the first lot erects a solid division wall cutting himself 
 off from light and air and maintains such a wall for a long period 
 of years, he cannot enjoin the owner of the second lot from erecting 
 a building to the height of such wall. 79 
 
 § 489. Vague and uncertain general covenants. — As before 
 seen, a contract or covenant will not be enforced by injunction, if 
 it is vague or uncertain in its terms and purpose. 80 And if so 
 enforced at all, it will be enforced in its spirit, and not merely 
 according to its letter. 81 And a; court of equity will not assume 
 that the defendant intends to build in breach of his covenant, 
 where he disclaims such an intention, and the incomplete structure 
 is not necessarily inconsistent with the covenant. 82 And a court 
 of equity will not allow a breach of covenant to be made out by 
 means of an arbitrary construction of it. Thus where a covenant 
 prohibits the erection of a forge or furnace for the " manufactur- 
 ing of iron," the covenantor will not be enjoined from the erec- 
 tion of a building in which forges are intended to be used for the 
 heating of iron, and the working it into different kinds of articles, 
 to be used in the construction of engines. 83 And where a certain 
 
 78. Scollard v. Nourvile, 181 Mass. 82. Grenell v. Stillwell, 14 N. Y. 
 412, G3 N. E. 941. Supp. 2G2. In this case it was held 
 
 79. Laudell v. Hamilton, 177 Pa. that an injunction against the erec- 
 St. 23, 35 Atl. 242. lion of a tenement-house would not 
 
 80. Sections 433, 444, ante. In lie against defendant, as her own and 
 Low v. Innes, 10 Jur. N. S. 1037, the her architect's affidavits were that 
 chancellor said: "It is scarcely pos- she was building a private residence 
 sihle to ascertain the meaning of the for herself. And see Foster v. Bir- 
 vvords, ' occupy the sight of ancient mingham R. Co., 2 Weekly Rep. 378. 
 lights.' How can windows erected in And where the defendant denies that 
 a new wall be said to occupy the site complainant's apprehensions are well 
 of windows in a wall that has been founded, his application for an in- 
 pulled down? I advert to it only junction will be denied, unless he 
 for the purpose of showing to plain- makes out a very clear case by his 
 tifT how difficult it would be to en- bill and affidavits. Rogers v. Dan- 
 force a covenant so worded." forth. 9 N. J. Eq. 289. 
 
 81. Manners v. Johnson, L. R. 1 83. Rogers v. Danforth, 9 N. J. 
 Ch. D. 673. Eq. 289. 
 
 739
 
 §§ 489a, 490 Relating to Restrictive Covenants. 
 
 site on a vendor's map was designated as a chapel, it was held 
 that this did not constitute an implied covenant that no other 
 than a building for religious purposes should be erected there, 
 unless so to build would abridge a purchaser's easement. 84 And 
 under a covenant expressed in general terms, for instance a cove- 
 nant for quiet enjoyment, the covenantor will not be enjoined from 
 doing a particular act, unless the complainant shows that his enjoy- 
 ment will be thereby impaired, and he will be appreciably in- 
 jured. 85 
 
 § 489a. Need not be substantial injury. — A breach of a cove- 
 nant in a deed or lease may be enjoined though it does not appear 
 that there is any irreparable, or even substantial injury therefrom. 88 
 In a case in New Jersey it is declared in this connection that the 
 court will not refuse to restrain the violation of a covenant because 
 the inconvenience resulting to the complainant will be slight, but 
 that it must be clear that there is no appreciable, or at all events, 
 no substantial damage from the breach, before the court will upon 
 the ground of smallness of damage, withhold its hand from enforc- 
 ing execution. 87 
 
 § 490. Present and reversionary interests. — A court of equity 
 will not interfere by injunction to protect reversionary interests in 
 land from waste, by a tenant in possession, unless it is shown that 
 he is injuring the premises by acts which are repugnant to the 
 
 84. Johnson v. Shelter Island the enjoyment of the premises if 
 Assn., 122 N. Y. 330, 25 N. E. 484. neither he nor they sustain any in- 
 
 85. In Ingram v. Morecraft, 33 jury, and if you do not show any 
 Beav. 49, the Master of the Rolls damage, you have no right to the 
 said: "It is no doubt true that if interposition of this court." 
 
 a man enter into a covenant to do a 86. Steward v. Winters, 4 Sandf. 
 
 particular thing, however absurd, th e Ch. (N. Y. ) 587; Beckwith v. How- 
 
 covenantee is entitled to have the ard, 6 R. I. 1 ; Everly v. Driskill. 24 
 
 covenant performed; but here there Tex. Civ. App. 413, 58 S. W. 1046; 
 
 is no covenant not to put stones in Anderson v. Rowland, 18 Tex. Civ. 
 
 the brook. The argument is founded App. 460, 44 S. W. 911. 
 
 solely on the covenant for quiet en- 87. Kirkpatrick v. Peshine, 24 N. 
 
 joyment, and it ia said that the J. Eq. 206. 
 words are express, that he shall have 
 
 740
 
 Relating to Restrictive Covenants. § 491 
 
 lease. Thus a tenant will not be enjoined from cutting timber on 
 demised land for purposes authorized by his lease. 8S In a case 
 resting simply on covenant, if the party seeking specific perform- 
 ance be entitled to possession, he has a right to the enjoyment of 
 the property, according to the covenant; but if he be entitled in 
 remainder only, he must show some material damage by reason 
 of the breach. 89 
 
 § 491. Penalty and liquidated damages. — Where to a covenant 
 to do or not to do a particular act is annexed a penalty, this does 
 not of itself give to the covenantor the option to perform or pay 
 the penalty. He is bound to perform unless it appear from the 
 particular language, construed in the light of the surrounding cir- 
 cumstances, that it was the intention of the parties to make the 
 penalty the price of non-performance, to be accepted by the cove- 
 nantee in lieu thereof. 90 Where a sum has been specified as a 
 penalty to insure the performance of the covenant, the payment of 
 the penalty will not prevent the enforcement of the covenant by a 
 court of equity; 91 hut such injunctive relief will not be granted 
 
 88. McDaniel v. Callan, 75 Ala. would be granted, though the plain- 
 327; Parkman v. Aicardi, 34 Ala. tiffs were entitled only in remainder. 
 393. 90. Phoenix Ins. Co. v. Conti- 
 
 89. Johnstone v. Hall, 2 Kay & nental Ins. Co., 87 N. Y. 400. 
 
 J. 414. In this ease there was a 91. Diamond Match Co. v. Roeber, 
 
 covenant by lessee not to carry on 106 N. Y. 473, 486, 13 N. E. 419, 
 
 any noxious trade, but to use the per Andrews, J. : " We are of opin- 
 
 premises solely for private dwellings. ion that the equitable jurisdiction of 
 
 The lessor died, having devised the the court to enforce the covenant by 
 
 leased premises to one for life, and to injunction was not excluded by the 
 
 plaintiffs in remainder. Defendant fact that the defendant executed a 
 
 as sublessee, conducted on the prem- bond for its performance, with a 
 
 ises a school for girls. A bill for in- stipulation for liquidated damages, 
 
 junction, while the tenant for life It is of course competent for parties 
 
 was alive, was dismissed on the to a covenant to agree that a fixed 
 
 ground that the plaintiffs were in re- sum shall be paid in case of a breach 
 
 mainder, and there was no case of by the party in default, and that this 
 
 waste, but only a possibility of the should be the exclusive remedy. The 
 
 respectability of the neighborhood be- intention in that case would be man- 
 
 ing in some measure affected. Bu^ ifest that the payment of the penalty 
 
 it was said obiter that in a gross should be the price of non-perform 
 
 case of a noxious trade an injunction ance, and to be accepted by the cove- 
 
 741
 
 §492 
 
 Relating to Restrictive Covenants. 
 
 where it was the intention of the parties that the covenantor might 
 have the alternative of performing the particular act, or paying 
 the specified sum. 92 
 
 § 492. Same subject illustrated. — Where, in a conveyance, the 
 grantee covenanted not to erect any building on a certain specified 
 part of the premises conveyed, which adjoined the remaining land 
 of the grantor, and then for a violation of the covenant, bound him- 
 self and his assigns to pay the grantor, his heirs or assigns, a 
 specified sum as liquidated damages, it was held that both from 
 
 nantee in lieu of performance. Phoe- 
 nix Ins. Co. v. Continental Ins. Co., 
 87 N. Y. 400, 405. But the taking 
 of a bond in connection with a cove- 
 nant does not exclude the jurisdic- 
 tion of equity in a case otherwise 
 cognizable therein, and the fact that 
 the damages in the bond are liqui- 
 dated, does not change the rule. It 
 is a question of intention, to be de- 
 duced from the whole instrument and 
 the circumstances; and if it appear 
 that the performance of the covenant 
 was intended, and not merely the 
 payment of damages in case of a 
 breach, the covenant will be enforced. 
 It was said in Long v. Bowring, 33 
 Beav. 585, which was an action in 
 equity for the specific performance of 
 a covenant, there being also a clause 
 for liquidated damages, 'all that is 
 settled by this clause is that if they 
 bring an action for damages, the 
 amount to be recovered is £1,000, 
 neither more nor less.' There can be 
 no doubt upon the circumstances in 
 this case, that the parties intended 
 that the covenant should be per- 
 formed, and not that the defendant 
 might, at Ins option, repurchase his 
 right to manufacture and sell 
 matches on payment of the liquidated 
 damages. The right to relief by in- 
 junction in similar contracts is es- 
 tablished by numerous cases." How- 
 
 ard v. Woodward, 10 Jur. N. S. 1123 
 Coles v. Sims, 5 DeG., McN. & G. 1 
 Avery v. Langford, Kay's Ch. 663 
 Whittaker v. Howe, 3 Beav. 383 
 Hubbard v. Miller. 27 Mich. 15 
 French v. Mocale, 2 Dr. & W. 269 
 Fox v. Scard, 33 Beav. 327. 
 
 92. Dills v. Doebler, 62 Conn. 366, 
 26 Atl. 398, per Andrews, C. J.: 
 " When the parties to an agreement 
 have put into a provision for the 
 payment, in case of a breach, of a 
 certain sum of money, and not a pen- 
 alty; in other words, when the con- 
 tract stipulates for one of two things 
 in the alternative, or on the one side, 
 the doing or the not doing of certain 
 acts, and on the other the payment 
 of a certain sum of money in lien 
 thereof, equity will not interfere, but 
 will leave the party to his remedy of 
 damages at law. Shiell v. McNitt, 9 
 Paige, 101; Skinner v. Dayton, 2 
 Johns. Ch. 526, 535. The case turns 
 on the construction to be given to 
 the contract." See, also, National 
 Prov. Bank v. Marshall, L. R. 40 Ch. 
 D. 112; London, etc., Bank v. Pritt, 
 56 L. J. Ch. (N. S.) 987; Howard v. 
 Woodward, 10 Jur. N. S. 1123; Slo- 
 man v. Walter, 1 Brown, C. C. 418; 
 Bray v. Fogarty, I. R. 4 Eq. 544; 
 Howard v. Hopkyns, 2 Atk. 371; 
 Hardy v. Martin, 1 Cox, Ch. 26. 
 
 742
 
 Relating to Restbictive Covenants. 
 
 §492 
 
 the covenant itself and tfoo surrounding circumstances, it was 
 apparent that the primary intent was to have the covenant per- 
 formed, and thus to secure, in performance, an open space for the 
 benefit of the premises not conveyed, and that, therefore, the cove- 
 nant could be enforced by injunction; and also that the right to 
 enforce it passed to a subsequent grantee of the dominant premises, 
 and, indeed, that such a covenant, both in respect to the burden and 
 benefit, follows the respective parcels of land through all devolu- 
 tions of title. 93 If the covenantee sues for and recovers a sum by 
 
 93. Phoenix Ins. Co. v. Continen- 
 tal Ins. Co., 87 N. Y. 400, per An- 
 drews, C. J. : " It was stated by 
 Lord Hardwicke, in Howard v. Hop- 
 kyns, 2 Atk. 371, that 'in all cases 
 where penalties are inserted in an 
 agreement in a case of non-perform- 
 ance, this has never been held to 
 release the parties from their agree- 
 ment, but they must perform it not- 
 withstanding.' Tliat was the case of 
 a bill filed by a vendee, for the spe- 
 cific performance of articles for the 
 purchase of an estate, which provided 
 that if either party should break the 
 agreement, he should pay £100 to the 
 other, and specific performance was 
 decreed, against the objection of the 
 defendant, that he was entitled to be 
 discharged from the contract on pay- 
 ment of the £100. The rule deduced 
 from the authorities is, that when 
 there is a covenant to do, or not to 
 do, a particular act under a penalty, 
 the covenantor i3 bound to do, or re- 
 frain from doing, the very thing, un- 
 less it appears •from the particular 
 language, construed in the light of 
 the surrounding circumstances, that 
 it was the intention of the parties 
 that the payment of the penalty 
 should be the price of non-perform- 
 ance, and to be accepted by the cove- 
 nantee, in lieu of performance. Chil- 
 
 liner v. Chilliner, 2 Ves. Sr. 528; 
 French v. Macale, 2 Dr. & W. 269, 
 and cases cited; Gray v. Crosby, 18 
 Johns. 219. The question to be con- 
 sidered is, what was the primary in- 
 tent of the agreement? If the pri- 
 mary intent was that the covenant 
 should be performed, the annexing 
 of a penalty is regarded merely as 
 security for the performance of the 
 covenant, and not as a substitute for 
 it. The point is very cleaily put by 
 Lord Chancellor Sugden, in French 
 v. Macale, 2 Dr. & W. 269. He says: 
 ' The question for the court to ascer- 
 tain is, whether the party is re- 
 stricted by covenant from doing the 
 particular act, although if he do it a 
 payment is reserved; or whether, ac- 
 cording to the true construction of 
 the contract, its meaning is, that the 
 one party shall have a right to do 
 the act on payment of what is agreed 
 upon as an equivalent.' It is un- 
 doubtedly true that the presence of 
 prohibitory or mandatory words in 
 the covenant, followed by a penalty, 
 is not conclusive against construing 
 the penalty, as an alternative given 
 to the covenantor for non-perform- 
 ance. In determining whether, by the 
 true construction of a covenant, the 
 penalty is the price of the privilege 
 of non-performance, the fact that the 
 
 743
 
 493 
 
 Kelating to Restrictive Covenants. 
 
 way of liquidated damages, the court will thereafter ordinarily 
 refuse him an injunction. 94 And an injunction was denied as 
 against a lessee who had covenanted that he would not plow pasture 
 land, but that if he did he would pay a specified sum for every 
 acre he plowed. 95 
 
 § 493. Same subject; construction of covenant. — The fact that 
 a restrictive covenant in a conveyance follows the habendum clause, 
 and that other covenants, deemed to be, conditions, precede such 
 clause, is not material in determining whether such covenant was 
 intended to be absolute or alternative in respect to its perform- 
 ance. 96 And an absolute covenant, in a deed not to do an act will 
 not, in the absence of a bill to rectify the deed, be controlled by a 
 recital in the deed, from which it appears that the parties intended 
 that such act might be done on payment of a fixed sum for liqui- 
 dated damages. 97 
 
 contract liquidates the damages for 
 a breach, may be considered, but it is 
 not a decisive, nor do we regard it as 
 a very material circumstance. If the 
 primary intention was that the very 
 thing covenanted should be done, 
 then the sum named is in the nature 
 of a penalty to secure the perform- 
 ance of the principal thing; and it 
 can make no difference in the con- 
 struction of the covenant whether 
 damages for non-performance are left 
 to be ascertained by an issue quan- 
 tum damnificatus, or the parties 
 
 themselves conclusively settle the 
 amount. Coles v. Sims, 5 DeG., M. 
 & G. 1 ; Long v. Bowring, 33 Beav. 
 585; Clark v. Jones, 1 Denio, 516." 
 
 94. Sainter v. Ferguson, i Macn. 
 & G. 286; Carnes v. Nisbett, 7 Hurl. 
 & N. 158, 778. 
 
 95. Rolfe v. Peterson, 2 Brown, P. 
 C. 436; Woodward v. Gyles, 2 Vera. 
 119. 
 
 96. Phoenix Ins. Co. v. Continen- 
 tal Ins. Co., 87 N. Y. 400. 
 
 97. Bird v. Lake, 1 Hem. & M. 111. 
 
 744
 
 Relating to Bonds and Notes. § 494 
 
 CHAPTER XVI. 
 
 Relating to Bonds and Notes. 
 
 Section 494. As to instrument valid on its face. 
 
 495. Enjoining collection or transfer for fraud. 
 
 496. Same subject. 
 
 497. Enjoining transfer of note. 
 
 498. Same subject. 
 
 498a. Same subject — Adequate remedy at law. 
 
 499. Enjoining action on note obtained by fraud. 
 
 600. Enjoining action on note for failure of consideration. 
 
 501. Set off — Insolvency. 
 
 502. Enjoining defense of coverture to wife's note. 
 
 503. As against subsequent holder. 
 
 Section 494. As to instrument valid on its face. — An injunc- 
 tion lies to protect a plaintiff against an invalid contract in the 
 possession of a defendant when the invalidity is not apparent on 
 the face of the instrument and when there is danger that the evi- 
 dence to support a defense to it in a court of law may be lost by the 
 delay of the adverse party to prosecute his claim. 1 Thus, where 
 a bond was good on its face; but had been held by defendant for 
 twenty-seven years, and he admitted that it was given on a trust 
 which he ought not to disclose, and depended on a contingency 
 which had not happened but might possibly happen, the court 
 ordered the bond to be delivered up and canceled. 2 So, where a 
 draft was drawn as a loan by the drawer and the consideration of 
 its acceptance has wholly failed and the person for whose benefit 
 it was drawn and who holds it had actual notice of all the equities 
 which attached to it, the drawer is entitled to have the suit for its 
 collection enjoined and to have it canceled. 3 In England the 
 
 1. Anthony v. Valentine, 130 3. Ferguson v. Fisk, 28 Conn. 501, 
 Mass. 119, 120; Metier v. Metier, 18 per Sanford, J.: "The draft though 
 N. J. Eq. 270. See, also, Paterson v. overdue is still transferable; no fa- 
 Baker, 51 N. J. Eq. 49, 26 Atl. 324. tal infirmity is apparent upon its 
 
 2. Hamilton v. Cummings, 1 face; the pending suit upon it may 
 Johns. Ch. (N. Y.) 517. be withdrawn and another instituted, 
 
 745
 
 §495 
 
 Relating to Bonds and Notes. 
 
 earlier decisions were somewhat contradictory, but the weight of 
 authority seemed to b& that a court of equity might direct invalid 
 instruments to be delivered up, though tluy might also be void 
 at law. 4 But where plaintiff has, without consideration, given the 
 defendant his note and the defendant has begun an action to col- 
 lect it, a bill for an injunction to restrain the prosecution of the 
 action and praying that the note be surrendered to the plaintiff, 
 for want of consideration, is demurrable because it states a defense 
 which is as available in the pending suit at law as in the suit in 
 equity. 5 
 
 § 495. Enjoining collection or transfer for fraud. — In an eany 
 case in the United States Supreme Court it is determined that a 
 court of equity will interpose by injunction to prevent the transfer 
 of negotiable securities and stocks which, if transferred, will be 
 irretrievably lost to the owner. 6 And a court of equity will grant 
 an injunction to restrain one who has fraudulently obtained pos- 
 session of stocks or other negotiable securities or paper from trans- 
 
 cither against the acceptor or the 
 drawer. . . . Strangers may be 
 defrauded by it and the petitioner 
 may be repeatedly harrassed by an 
 outstanding claim, which upon every 
 principle of equity ought to be de- 
 feated. We entertain no doubt of 
 the jurisdiction of a court of equity 
 to afford to the petitioner the relief 
 for which he seeks, and we think 
 this record exhibits in a striking 
 light the necessity for such a juris- 
 diction and the fitness of its exer- 
 cise in the case before us. Peirsoll v. 
 Elliott, 6 Pet. (U. S.) 95, 8 L. Ed. 
 332; New London Bank v. Lee, 11 
 Conn. 120; Chipman v. Hartford, 21 
 Conn. 489; Boyce v. Grundy, 3 Pet. 
 (U. S.) 215, 7 L. Ed. 655. 
 
 4. Jackman v. Mitchell, 13 Ves. 
 581; Bromley v. Holland, 7 Ves. 3; 
 Newman v. Milncr, 2 Ves. Jun. 483; 
 
 Minshaw v. Jordan, 3 Bro. 17, n. 
 But see Ryan v. Mackmath, 3 Bro. 
 i5; Franco v. Bolton, 3 Ves. 368; 
 Cray v. Mathias, 5 Ves. 286. In Law 
 v. Law, 3 P. Wms. 391, Lord Talbot 
 ordered a bond which was void at 
 law as well as in equity to be can- 
 celed without sending the parties to 
 law. In Wliittingham v. Thorn- 
 burgh, 2 Vera. 206; Goddard v. Gar- 
 rett, 2 Vera. 269; and DeCosta v. 
 Scandret, 2 P. Wms. 170, policies of 
 insurance procured by fraud were or- 
 dered to be delivered up and can- 
 celed, though the fraud was equally 
 a defense at law. 
 
 5. Anthony v. Valentine, 130 
 Mass. 119; Slade v. Hood, 13 Gray 
 (Mass.), 97; Corlies v. Howe, 11 
 Gray (Mass.), 125. 
 
 6. Osborn v. United States Bank, 
 9 Wheat. (U. S.) 738, 6 L. Ed. 204. 
 
 74G
 
 Relating to Bonds and Notes. 
 
 §495 
 
 ferring the 3ame in violation of the rights of the owner. 7 So in a 
 case in New York it is declared that equity will interfere to con- 
 trol the action of parties and restrain them from transferring 
 negotiable obligations, on the ground that it is against conscience 
 to allow them to create in their transferee a right of equity which 
 they themselves do not possess. 8 So where State agents, by an 
 unauthorized contract, sold its bonds or certificates of stock on 
 credit to an irresponsible purchaser chargeable with notice of the 
 agent's want of authority, it was held that the securities Ix ing 
 negotiable, so as to render them valid in the hands of a hona fide 
 holder, the State was entitled to an injunction restraining the 
 purchaser from transferring them. 9 And where the electors of a 
 city or town have been induced to vote for an issue of bonds in 
 aid of a railroad by means of fraudulent representations made by 
 the railroad company, an injunction will lie to prevent the collec- 
 tion of the bonds ; it being held that in such cases the electors are 
 entitled to stand on the very letter of their promise. 10 But the 
 
 7. United States. — Hower v. 
 Weiss Malting & E. Co., 55 Fed. 356, 
 5 C. C. A. 129. 
 
 Georgia. — Wilcox v. Ryals, 110 Ga. 
 287, 34 S. E. 575. 
 
 Indiana. — Burns v. Weesner, 134 
 Ind. 442, 34 N. E. 10. 
 
 Massachusetts. — Sears v. Carrier, 
 4 Allen, 339. 
 
 Nebraska. — Reynolds v. Touzalin 
 Imp. Co., 62 Neb. 236, 87 N. W. 24. 
 
 Nevada. — Sierra Nevada Min. Co. 
 v. Sears, 10 Nev. 346. 
 
 Vermont. — Chase v. Torrey, 20 Vt. 
 395. 
 
 Virginia. — Dickenson v. Bankers 
 Loan & T. Co., 93 Va. 498, 25 S. E. 
 548. 
 
 8. Town of Venice v. Woodruff, 62 
 N. Y. 462, 20 Am. Rep. 495. Per 
 Rapallo, J. 
 
 9. D?lafield v. State, 2 Hill (N. 
 Y.), 159. 
 
 10. Nash v. Baker, 37 Neb. 713, 
 
 56 N. W. 376, per Ryan, J. : "In 
 Wullenwaber v. Dunigan, 30 Neb. 
 877, 47 N. W. 420, it was held, where 
 certain petitioners were induced to 
 sign a petition calling an election in 
 K. township, Seward county, upon 
 the representations of an agent of the 
 railway company that the depot 
 would be located on section 16 of 
 said township, when in fact the de- 
 pot was afterwards located on sec- 
 tion 17, that the company was bound 
 by the representations of its agent, 
 and that the persons who had been 
 deceived thereby, and induced to sign 
 the petition, might set up such facts 
 to enjoin the issuing of the bonds. 
 In the opinion rendered by Maxwell, 
 J., occurs the following apposit> lan- 
 guage: 'A proposition to vote bonds 
 is in the nature of a contract, which, 
 when accepted, is binding upon the 
 respective parties. Hence if the 
 electors, through false or fraudulent 
 
 747
 
 §496 
 
 Relating to Bonds and Notes. 
 
 assignment of a fraudulent attachment bond will not ordinarily 
 be enjoined, since the fraud would be a good defense to an action 
 at law on the bond. 11 
 
 § 496. Same subject. — Where the electors of a township voted 
 to aid a railroad company to build a railroad through the town- 
 ship and authorized the supervisors on the completion of the road 
 to issue township bonds and deliver them to the company, it was 
 held that as no part of the road was built by the company in the 
 township, the electors were entitled to enjoin the supervisors from 
 delivering the bonds to the company; and also were entitled to 
 stand on the very letter of their promise and enjoin the delivery 
 of the bonds to the vendee of the railroad company by which the 
 Toad had actually been constructed, as the electors had not desig- 
 nated such vendee as the donee of the bonds. 12 And where plaintiff 
 and others deposited the bonds of a railroad company with defend- 
 
 representations, have been induced to 
 vote bonds to aid in the construction 
 of such railway, a court of equity in 
 a proper case will grant relief. 
 Curry v. Decatur Co., 61 Iowa, 71, 15 
 N. W. 602; Sinnett v. Moles, 38 
 Iowa, 25; Henderson v. Railroad Co., 
 67 Am. Dec. 675; Crump v. Mining 
 Co., 56 Am. Dec. 116; Wickham v. 
 Grant, 28 Kan. 517.' In an opinion 
 of this court, in Township of Midland 
 v. County Board, 37 Neb. 582, 56 N. 
 W. 317, it has been held that the 
 electors of a township are entitled to 
 stand upon the very letter of their 
 promise; a wholesome rule, which 
 should be extended to the facts under 
 consideration." 
 
 11. Elder v. Shaw, 12 Nev. 78. 
 See Penn v. Ingles, 82 Va. 65. 
 
 12. Township of Midland v. 
 County Board, 37 Neb. 582, 56 N. W. 
 317, per Ragan, C: "The township 
 electors designated the donee and 
 only the one designated can take the 
 donation. The electors did not au- 
 
 thorize the supervisors to deliver the 
 bonds voted to the railroad company 
 or its vendee, and had they, it would 
 have been ineffectual and the bonds 
 invalid. Jones v. Hurlburt, 13 Neb. 
 125, 13 N. W. 5; Spurck v. Lincoln 
 & N. W. R. Co., 14 Neb. 293, 15 N. 
 W. 701; State v. Roggen, 22 Neb. 
 118, 34 N. W. 108. The most that 
 can be said for the appellee is that 
 the electors of this township au- 
 thorized their agents, the board of 
 supervisors and the county clerk of 
 Gage county, to issue the bonds of 
 said Midland township, and deliver 
 them to the railroad company, when 
 it had built a certain improvement. 
 The railroad company never complied 
 with the condition coupled with the 
 authority given by the township 
 electors to its agents. The vendee 
 of the railroad has complied with the 
 condition to build the improvement 
 and it now claims these agents should 
 deliver the bonds to it. Authority 
 from a principal to an agent to do a 
 
 748
 
 Kelating to Bonds and Notes. 
 
 §497 
 
 ants under a contract by which defendants were to hold the bonds 
 as security for the expenses of reorganizing the company, and any 
 bondowner was to have the right to withdraw his bonds on paying 
 his proportionate share of the expenses then accrued, it was held 
 that in an action to recover bonds so deposited plaintiff was entitled 
 to an injunction pendente lite against the sale of his bonds. 13 But 
 where a State constitution permits counties to donate their bonds, 
 not exceeding a certain percentage on the assessed valuation, to 
 railroad companies, a donation in excess of the prescribed per- 
 centage is wholly void and the bondholders can have no relief from 
 a court of equity on the theory that the county received a considera- 
 tion in the construction of the railroad and should, therefore, pay 
 so much on the bonds as it might lawfully have donated. 14 
 
 § 497. Enjoining transfer of note. — So long as a promissory 
 note which the payee has obtained by means of fraud or force is 
 in his hands he may be enjoined from the transfer of it, and in 
 some cases from the collection of it. 15 But to enjoin the maker of 
 
 specific act is limited to that act. 
 State v. Commissioners of Nemaha 
 Co., 10 Kan. 569." 
 
 13. Kennedy v. Kennedy, 24 N. 
 Y. Supp. 424. 
 
 14. Hedges v. Dixon County, 150 
 U. S. 182, 37 L. Ed. 1044, 14 S. Ct. 
 71, aff'g 37 Fed. 304, and distinguish- 
 ing Louisiana v. Wood, 102 U. S. 
 294, 26 L. Ed. 153; Read v. Platts- 
 mouth, 107 U. S. 568, 27 L. Ed. 414, 
 2 S. Ct. 208; Daviess Co. v. Dickin- 
 son, 117 U. S. 657, 29 L. Ed. 1026, 6 
 S. Ct. 897. 
 
 15. Lyster v. Stickney, 12 Fed. 
 609, per McCrary, C. J.: "There 
 was an injunction allowed against 
 the negotiation of these notes which 
 were negotiable and which were not 
 due at the time the original bill was 
 filed and some of which are not yet 
 due. After the amendments the bill 
 stands upon its face a good bill al- 
 
 leging the execution of these instru- 
 ments under duress and a threat to 
 take the life of complainant if he did 
 not execute them. There is no doubt 
 that any contract executed under a 
 threat to take the life of the party 
 who executes it is utterly void and 
 may be set aside on the application 
 of any party injured." 
 
 In James v. Roberts, 18 Ohio, 548, 
 the collection of a note was enjoined, 
 it having been extorted by threats of 
 prosecution for perjury. 
 
 In Thurman v. Burt, 53 111. 129, 
 the plaintiff sued out an execution 
 and going with the sheriff threatened 
 to close defendant's store unless he 
 settled at once; to avoid the threat- 
 ened levy the defendant gave notes 
 with security due at a shorter time 
 than that fixed for the stay of execu- 
 tion; it was held that the notes were 
 
 749
 
 49S 
 
 Relating to Bonds and Notes. 
 
 a not© from paying it does not prevent the recovery of judgment 
 upon the note. 16 And an injunction against the negotiation of a 
 note docs not destroy its negotiability. 17 And a maker of a note 
 cannot be enjoined from paying it to the payee unless he is made 
 a defendant. 18 But one who has received a note in good faith and 
 for a valuaMe consideration will not be enjoined from proceeding 
 at law to collect it on the ground of fraud practiced on the maker 
 by the payee. 19 
 
 § 498. Same subject. — Where an insolvent non-resident owning 
 a life estate only in land fraudulently represents to his grantee 
 that he owns it in fee simple, and receives in cash the full value 
 of the life estate, such grantor will be enjoined from transferring 
 the unmatured purchase money notes to an innocent third person, 
 though the grantee be in possession of the real estate, since he is 
 entitled to such possession during the life of the grantor. 20 And 
 
 extorted by the improper use of legal 
 process and without consideration, 
 and plaintiff was enjoined from as- 
 signing them, and was compelled to 
 abide by the terms of bis agreement 
 as to stay of execution under which 
 the judgment was entered. 
 
 The collection of a note was en- 
 joined where its consideration was 
 the fraudulent sale of a patent right, 
 Sackett v. Hillhouse, 5 Day (Conn.), 
 551; Darst v. Brockway, 11 Ohio, 
 462; and where undue influence was 
 practiced on the maker of the note, 
 who was of weak mind and usually 
 intoxicated, Rembert v. Brown, 17 
 Ala. (567; and where the payee pro- 
 cured the note on his promise to 
 transfer an interest in letters patent 
 which be did not keep, Robinson v. 
 Jefferson, 1 Del. Ch. 244. 
 
 S?e section 495 herein. 
 
 16. Campbell v. Gilman, 26 111. 
 120. 
 
 17. Winston v. Westfeldt, 22 Ala. 
 760. 
 
 18. Fellows v. Fellows, 4 Johns. 
 Ch. (N. Y.) 25. See Iveson v. Har- 
 ris, 7 Ves. 257. 
 
 19. Dougherty v. Scudder, 17 N. 
 J. Eq. 248. 
 
 20. Burns v. Weesner, 134 Ind. 
 442, 34 N. E. 10, per CofTey, C. J.: 
 " If it be true, as alleged in the com- 
 plaint and admitted by the demurrer, 
 that the appellant by means of a 
 fraud practiced on him by Mrs. 
 Brady, was induced to purchase from 
 her the fee to this land, when in fact 
 she owned only a life estate; that he 
 has fully paid her for the life estate; 
 that she and her husband are non- 
 residents, and are insolvent so that 
 the payment of any further sum will 
 be a total loss to the appellant, he 
 should have relief. Before he is re- 
 quired to pay any further sum equity 
 and good conscience require that he 
 should be secured against loss, and 
 in the meantime Mrs. Brady should 
 be enjoined from transferring the 
 notes to an innocent pxirchaser. 
 
 750
 
 Relating to Bonds and Notes. § 498a 
 
 in an action by an official* and creditors' assignee to recover the 
 amount of a note from the maker, the bankrupt payee was enjoined 
 from indorsing the note to any other than such assignee and from 
 proceeding at law against the maker of the note. 21 And where in 
 an adjustment of the amounts due from individual partners to the 
 firm one of the partners gave his note for an amount greatly in 
 excess of what he owed as a result of a mutual mistake, it was 
 decided that a court of equity would enjoin the negotiation of 
 such note. 22 Where negotiable securities of the State have without 
 authority been sold to an irresponsible purchaser, the State is 
 entitled to enjoin him from transferring them, as they would be 
 valid in the hands of a holder in good faith. 23 Again, it is decided 
 that an injunction cannot be allowed restraining a defendant from 
 transferring or disposing of a promissory note on a mere claim of 
 indebtedness. He must not only establish a legal right in such a 
 case but must show the issuing and return of an execution 
 unsatisfied. 24 
 
 § 498a. Same subject; adequate remedy at law. — Where the 
 maker of a note has an adequate remedy at law it is decided that 
 equity will not enjoin a transfer or collection of such note. 25 And 
 it is decided that a court of equity has no jurisdiction to enjoin 
 the transfer of a note on the ground that it has been materially 
 altered, as the maker has an adequate remedy at law. 26 And where 
 the Code provides a remedy for the perpetuation of the testimony 
 of witnesses it is held that the fact that a party is apprehensive 
 
 Crowfoot v. Zink, 30 Ind. 446; Tras- Swanst. 180; Hood v. Aston, 1 Russ. 
 
 ter v. Snelson, 29 Ind. 96; Fehrle v. 412; Osborn v. United States Bank, 
 
 Turner, 77 Ind. 530; VVimberg v. 9 Wheat. (U. S.) 738, 6 L. Ed. 204. 
 
 Schwegeman, 97 Ind. 528." And see Hamilton v. Cummings, 1 
 
 21. Green v. Pledger, 3 Hare, 165. Johns. Ch. (N. Y.) 517; Chedworth 
 Compare Montague v. Hill, 4 Russ. v. Edwards, 8 Ves. 46. 
 
 128; Portaslington v. Graham, 5 24. Sebring v. Lant, 9 How. Prac. 
 
 Sim. 416. (N. Y.) 346. 
 
 22. Locke v. Locke, 166 Mass. 435, 25. Galusha v. Flour City Nat. 
 44 N. E. 346. Bank, 1 Hun (N. Y.), 573. 
 
 2.3. Delafield v. Illinois, 2 Hill 26. Erickson v. First Nat. Bank, 
 
 (N. Y.), 159; Patrick v. Harrison, 3 44 Neb. 622, 62 N. W. 1078, 48 Am. 
 Bro. Ch. 476; Lloyd v. Gurdon, 2 St. R. 753, 28 L. R. A. 577. 
 
 751
 
 § 499 Relating to Bonds and Notes. 
 
 that one of his witnesses by whom he expects to establish his 
 defense of a material alteration in a note, may die or move away, 
 is not alone a sufficient ground to enjoin the negotiation of the 
 instrument. 27 
 
 § 499. Enjoining action on note obtained by fraud. — A court 
 of equity has jurisdiction to enjoin collection of a note possession 
 of which has been obtained by fraud. 28 So where a son who has by- 
 fraud and undue influence obtained possession of a note from his 
 father, for the purpose of collecting it and is proceeding to collect 
 and convert the note to his own use, the father may have an injunc- 
 tion to enjoin the son from proceeding with the suit on the note. 29 
 And where the possession of a promissory note made by a decedent 
 is lost by means of fraud, and the note is allowed to the fraudulent 
 holder as a valid claim against the decedent's estate, and the de- 
 frauded owner cannot show his title to the note before the com- 
 missioners, and has no opportunity at law of having the merits 
 of his claim passed upon, he is entitled to an injunction to prevent 
 the administrator from paying the amount of the note to the 
 fraudulent and insolvent holder until after a hearing upon the 
 merits. 30 Where a note is alleged to be a forgery it is decided that 
 
 27. Erickson v. First Nat. Bank, commissioners, and in pursuance of 
 44 Neb. 622, 62 N. W. 1078, 48 Am. the same wrongful act, its allowance 
 St. Rep. 753, 28 L. R. A. 577. See was obtained by defendant Curtiss in 
 Springport v. Teutonia Sav. Bank, her favor, and through the same 
 75 N. Y. 397. Compare Ritterhoff v. scheme of fraud and deception the 
 Puget Sound Nat. Bank (Wash. complainant was, in his application 
 1905), 79 Pac. 601. to have it allowed in his favor, de- 
 
 28. Hodson v. Eugene Glass Co., feated. He seems to have been pow- 
 156 111. 397, 40 N. E. 971. erless in his efforts to make any 
 
 29. Reese v. Reese, 89 Ga. 645, 15 headway against the defendants' 
 S. E. 846. And see Lannes v. Cour- schemes of fraud in depriving him of 
 ege, 31 La. Ann. 74. his property. That he is entitled to 
 
 30. McKinney v. Curtiss, 60 Mich. the relief he asks is shown by the fol- 
 611, 621, 27 N. W. 691, per Sher- lowing authorities: Pearce v. Olney, 
 wood, J. : " It seems very evident 20 Conn. 544 ; Wierich v. De Zoya, 2 
 that the note was surreptitiously ob- Gilman (111.), 385; Nelson v. Rock- 
 tained from the complainant's agent, well, 14 111. 375; Kent v. Ricards, 3 
 and upon the facts stated in the bill Md. Ch. 392; Greene v. Haskell, 5 
 it was fraudulently placed before the R. I. 447 ; Mack v. Doty, Harr. Ch. 
 
 752
 
 Relating to Bonds and jSTotes. § 500 
 
 equity may entertain jurisdiction of a suit to prevent the holder 
 from asserting any demand upon such note, although the fact of 
 forgery is an adequate remedy at law where it appears that there is 
 danger of losing the evidence to establish forgery. 31 In a suit to 
 concel a promissory note after it is past due, brought by the maker, 
 on the ground of fraud in procuring it from him, against the 
 holder and his indorsee for collection, the latter should not be 
 enjoined from returning the note to its owner, when he is not 
 shown to be irresponsible, since the suit is lis pendens notice to the 
 world of the plaintiff's claims. 32 
 
 § 500. Enjoining action on note for failure of consideration. — 
 Where notes have been given and there is a failure of consideration 
 therefor the maker of such notes may invoke the aid of a court of 
 equity to enjoin their transfer by the payee. 33 So where notes are 
 given by a lessee to the lessor in advance for rent and after they 
 are given proceedings: are instituted for the foreclosure of a mort- 
 gage upon the property leased, it is decided that the lessee, in 
 order to prevent such notes from falling into the hands of a bona 
 fide holder, may bring an action to enjoin their transfer by the 
 lessor. 34 And where the inducement to buy a tract of land was the 
 timber thereon, which the vendor had already sold without the 
 vendee's knowledge, an injunction was granted the vendee to re- 
 strain the vendor from transferring the notes given for the pur- 
 chase money until the final hearing of the cause. 35 But it is 
 
 (Mich.) 366; Wales v. Bank of 31. Rutterhoff v. Puget Sound 
 
 Michigan, Harr. Ch. (Mich.) 308; Nat. Bank, 37 Wash. 77, 79 Pac. 601. 
 
 Wixom v. Davis, Walk. Ch. 15; Bur- So holding where one of the plaintiffs 
 
 pee v. Smith, Walk. Ch. 327 ; Rath- was an invalid. 
 
 bone v. Warren, 10 Johns. (N. Y.) 32. New York Construction Co. v. 
 
 587; Boyce v. Grundy, 3 Pet. 214, 7 Simon, 53 Fed. 1. 
 
 L. Ed. 655; Hawkshaw v. Parkins, 2 33. Belohradsky v. Kuhn, 69 111. 
 
 Swanst. 539; Adair v. Cummin, 48 547. See Six v. Shauer, 26 Med. 415; 
 
 Mich. 376, 12 N. W. 495; Massie v. Grier v. Flitcraft, 57 N. J. Eq. 556, 
 
 Watts, 6 Cranch, 148; Hale v. 41 Atl. 425. 
 
 Chandler, 3 Mich. 531; Edson v. 34. Thompson v. Flathers, 45 La. 
 
 Cumings, 52 Mich. 52, 17 N. W. 693; Ann. 120, 12 So. 245. 
 
 Holbrook v. Campau, 22 Mich. 288; 35. Zeigler v. Beasley, 44 Ga. 56. 
 
 Tong v. Marvin, 26 Mich. 35." 
 
 753 
 48
 
 § 501 Relating to Bonds and Notes. 
 
 decided that equity will not enjoin a vendor from collecting or 
 negotiating securities given for the price of land conveyed with 
 full covenants of warranty, on account of alleged defects in the title 
 not amounting to a total failure of consideration, where there has 
 been no disturbance or eviction, and no suit is pending by an 
 adverse claimant. 36 And in a suit on a note, an answer alleging 
 plaintiffs insolvency, anel that defendant is liable a6 his surety on 
 an overdue note to a third person, does not show a ground for 
 enjoining the suit. 37 And whore the plaintiff prayed that the 
 defendant be enjoined from selling, hypothecating or disposing 
 of certain notes which he had given to the defendant for the pur- 
 pose of obtaining an interest in a partnership and alleged that the 
 defendant had refused to comply with his agreement, that he had 
 agre.d to sell it to third persons, and that he was about to leave 
 the State and the defendant expressed a willingness that such notes 
 be impounded, it was decided that there was no abuse of discretion 
 in reiusing to grant the injunction. 38 
 
 § 501. Set-off; insolvency.— Where plaintiff and defendant are 
 mutually indebted to each other on negotiable notes, and defendant 
 becomes insolvent, he may be enjoined for the purpose of set-off 
 from transferring the note made by plaintiff, if it is not yet due." 9 
 
 36. Hile v. Davidson, 20 N. J. Eq. ure of consideration. Bullock v. 
 
 22c Ai.d see Huitisli v. O Brien, 20 Winter, 10 Ga. 214. 
 
 N. J. Eq. 230; Miller v. Giegory, 10 37. Hopkins v. Fecnter, 47 Mo. 
 
 N. J. Eq. 274; Glenn v. Whipple, 12 331. 
 
 N. J. Eq. 50; Shannon v. Marselis, 38. Isdale v. Hanson, 124 Ga. 393, 
 
 1 N. J. Eq. 426. When a party 52 S. E. 618. 
 
 liable over as transferrer to the 39. Lindsay v. Jackson 2 Paige 
 
 transferee of a note is notified of a (N. Y. ), 581, per Walworth, Ch.: 
 
 plea of failure of consideration, filed "There the defendants could not 
 
 by the maker in a suit by the trans- claim present payment of their notes 
 
 feree, he is privy in law to a judg- due six months hence, and therefore 
 
 ment rendered against the trans- it would be inequitable for them, by 
 
 feree on such plea and if afterwards an offset, to compel complainants to 
 
 the transferrer proceeds at law to pay those notes before they became 
 
 enforce security against the trans- due. But as the defendant's debt is 
 
 feree taken in pnvment for the note, due, and if they paid it immediately 
 
 the transferee will be relieved by in- according to their agreement, the 
 
 junction to the extent of such fail- complainants might without any jus- 
 
 754
 
 Relating to Bonds and Notes. § 502 
 
 The general rule is that when there are mutual demands between 
 parties which cannot be set off under the statute, but may be set off 
 in equity, without interfering with equitable rights, the fact that 
 one of the parties is insolvent gives jurisdiction to a court of equity 
 to enforce the set-off. 40 Where a note was given to one as the 
 trustee for another, and secured by a chattel mortgage, and the 
 real owner became insolvent, it was held that the maker could 
 restrain the payee from transferring the note before maturity and 
 from foreclosing the mortgage, on the ground of fraud and failure 
 of consideration. 41 
 
 § 502. Enjoining defense of coverture to wife's note. — Where 
 a wife made her note to her husband's order, and for his use, and 
 he applied for its discount to a bank official, who knew it was made 
 by her without consideration, but not with notice 1 that it was for 
 the husband's benefit, it was held that she was estopped, and was 
 properly enjoined from setting up against the bank that she was 
 a mere surety on the note 1 . It was held also that the wife's plead- 
 ing that the contract was between husband and wife, and therefore 
 void at law, compelled the bank to go into a court of equity, and 
 that she would not be permitted to litigate the matter again in the 
 law courts. 42 
 
 tice to the otlier party waive the time 153; Robbins v. Holley, 1 Monroe 
 
 of credit, which was for their own (Ky.), 194. 
 
 benefit, and pay the notes immedi- 41. Belohradsky v. Kulm, 69 III. 
 
 ately with the money thus received, 547. 
 
 the defendants have no cause to 42. PTackettstown Nat. Bank v. 
 
 complain of such a mode of cempen- Ming, 52 N. J. Eq. 156. 27 Atl. 920. 
 
 sa'. ing one debt by another. Under The note in this case was discounted 
 
 the circumstances. I think it would by the bank by giving a check to the 
 
 be inequitable and unjust to permit wife's order, which the husband ac- 
 
 the defendants to dispose of these cepted, and which she indorsed and 
 
 notes, either for their own private delivered to him. she knowing chat 
 
 purposes, or in payment of their gen- it was the proceeds of the discount, 
 
 eral or favorite creditors, leaving the Of these facts. Putney, V. C, said: 
 
 complainant's debt unpaid." "She thereby became the borrower of 
 
 40. Pond v. Smith. 4 Conn. 302; the money, and liable as sue!) to the 
 
 Simson v. Hart, 14 Johns. (N. Y.) bank, and she could not, as against 
 
 63; Rarchet v. Sarehet, 2 Ohio, 320; the bank, change her position to one 
 
 Collins v. Farquar, 4 Litt. (Ky.) of suretyship by handing the pro- 
 
 TO£>
 
 503 
 
 Relating to Bonds and Notes. 
 
 § 503. As against subsequent holder. — Where a mortgage 
 given as security of negotiable notes is valid on its face, duly re- 
 corded, and imports confession of judgment by the mortgagor in 
 favor of the mortgagee and any future holder of the note, the 
 mortgagor cannot impair the value of the mortgage, nor enjoin 
 its enforcement by executory process, as against any subsequent 
 holder of the notes, by pleading secret equities between the orig- 
 inal parties to the notes, arising from his own fault or negligence, 
 of which the subsequent holder had no notice and no means of 
 information. 43 But one who takes a lease of property which he 
 knows to be mortgaged, and gives his notes in advance for the 
 rent, may, in case of the foreclosure of the mortgage, and to pre- 
 
 ceeds to her husband for his own per- 
 sonal use. To authorize her to do so 
 would be to enable her to make use 
 of the enabling statute to practice a 
 fraud. But as the form of the con- 
 tract is one of a promise by the wife 
 to the husband, by him assigned to 
 the bank, the latter can have no 
 remedy at law, but must come to this 
 court for relief. National Bank v. 
 Brewster, 49 N. J. L. 231, 12 Atl. 
 769; Gould v. Gould, 35 N. J. Eq. 
 37. I think it worthy of remark that 
 if the defendant had so framed the 
 rule opening the judgment as to con- 
 fine her defense at law to the merits, 
 and bad refrained from pleading that 
 the contract was between husband 
 and wife, and therefore void, the 
 merits of the case might, as it 
 seems to me, have been dealt 
 with at law. It is certainly wholly 
 the fault of the defendant that the 
 complainant was driven into this 
 court, and the result is that she 
 must be bound by its finding. Hav- 
 ing been deprived of tbe opportunuity 
 to prove its case at law and compelled 
 to prove it here or not at all, it 
 would be gross injustice to compel it 
 
 to prove it over again in the law 
 court, in order to obtain the fruit of 
 its judgment there. Reason and jus- 
 tice require that a wife who avails 
 herself of the advantages of the 
 statute emancipating her from the 
 business trammels which the com- 
 mon law threw around her, should be 
 bound by her acts and representations 
 to the same extent as a single woman 
 or a man. Bank v. Craig, 1 N. J. 
 L. Jour. 153; Bodine v. Killeen, 53 
 N. Y. 93 ; Frecking v. Rolland, 53 N. 
 Y. 422; Noel v. Kinney, 106 N. Y. 
 74, 12 N. E. 351." 
 
 43. State Nat. Bank v. Flathers, 
 45 La. Ann. 75, 12 So. 243, where the 
 court relied on Schepp v. Smith, 35 
 La. Ann. 1 ; Butler v. Slocomb, 33 La. 
 Ann. 170; Davis v. Greve, 32 La. 
 Ann. 420; Taylor v. Bowles, 28 La. 
 Ann. 294; Gardner v. Maxwell, 27 
 La. Ann. 562; Carpenter v. Allen, 
 16 La. Ann. 435; and distinguished, 
 Morris v. White, 28 La. Ann. 856; 
 Garner v. Gay, 26 La. Ann. 376; Doll 
 v. Rizotti, 20 La. Ann. 265; Bowman 
 v. McKleroy, 14 jua. Ann. 587, where 
 the equities were opposed by another 
 than the mortgagor, or the property 
 
 756
 
 Relating to Bonds and Xotes. § 503 
 
 vent the notes from passing into the hands of a bona fide holder, 
 enjoin the lessor from negotiating the notes, and to compel him to 
 give security against the payment of the same. 44 
 
 mortgaged did not belong to the 44. Thompson v. Flathers, 45 La. 
 
 mortgagor, or the mortgage had been Ann. 120, 12 So. 245. 
 canceled before its transfer. 
 
 757
 
 504 Relating to Strikes, Boycotts and Monopolies. 
 
 CHAPTER XVII. 
 
 Relating to Strikes, Boycotts and Monopolies. 
 
 Section 504. Enjoining strikers from using force, threats or intimidation. 
 504a. \\ hat constitutes intimidation. 
 504b. Picketing by strikers. 
 504c. Rights of employees in respect to striking. 
 
 505. Mere enticement or persuasion of workers not enjoined. 
 505a. Interference with access to premises. 
 
 506. What trade combinations not enjoined. 
 
 507. Lawful trade combinations. 
 507a. Conspiracy generally. 
 507b. Conspiracy continued. 
 507c. Boycotts generally. 
 
 508. Restraining boycott of newspapers. 
 
 508a. Railroad strikes affecting interstate commerce and mails — 
 Right of national government. 
 
 509. Railroad boycotts — Violating Interstate Commerce Act. 
 
 510. Same subject. 
 
 511. Enjoining trade libels. 
 511a. Same subject — Circulars. 
 
 512. In case of trespass. 
 
 513. Restraining monopolies. 
 
 513a. Same subject — Northern Securities Co. v. United States. 
 
 514. Protecting monopolies by injunction, 
 
 515. Monopolies — Restraint of interstate commerce. 
 
 516. Same subject continued. 
 
 517. Commercial trusts — Insurance combinations. 
 517a. Who bound by injunction — Violation of. 
 
 Section 504. Enjoining strikers from using force, threats or 
 intimidation. — It is a general rule, will settled by numerous de- 
 cisions, that, the us , by strikers, of force, threats or intimidation 
 to cause other employees to have the service of an employ r, or to 
 prevent persons from entering into his employ, will ba enjoin. d. 1 
 
 1. United Stales. — Knudsen v. pie. 220 111. 355, 77 N. E. 17(5; 
 
 Benn., 123 Fed. 030; Consolidated Chrisiensen v. Kellogg Switchboard 
 
 Steel & W. Co. v. Murray, 80 Fed & S. Co., 110 111. App. 61. 
 811* Michigan. — Enterprise Foundry Co. 
 
 Illinois.— Franklin Union v. Peo- v. Iron Moulders' Union (Mich. 
 
 758
 
 Relating to Strikes, Boycotts and Monopolies. § 504 
 
 And it is decided that an employer is entitled to an injunction 
 restraining third persons from personally interfering with persons 
 willing to be employed, with the intention of coercing them to 
 refrain from entering the employ of such employer, as such con- 
 duct is an invasion of the rights of an employer to have labor flow 
 
 1907), 112 N. W. 685. 
 
 jj.AsoMX. — Hamilton Brown Shoe 
 Co. v. baxey, 131 Mo. 212, 32 S. W. 
 1 lOU ; Swaiue v. Blackmore, 75 Mo. 
 App. 74. 
 
 Neio York. — New York Cent. I. W. 
 Co. v. Brennan, 105 N. Y. Supp. 8(55; 
 D«vis v. Zimmerman, 1)1 Hun, 489, 
 36 Is. Y. Supp. 303; Butterick Pub. 
 Co. v. Typographical Union. 50 Misc. 
 R. 1, 100 N. Y. Supp. 292. 
 
 Pennsylvania. — Murdoch v. Walker, 
 152 Pa. St. 595, 25 Atl. 492, 34 Am. 
 St. Rep. G78. 
 
 A strike has been defined as a 
 combined effort among workmen to 
 compel the master to the concession 
 of a eer ain demand, by preventing 
 the conduct of his business until com- 
 pliance with the demand. Farmers' 
 Loan & T. Co. v. Northern Pac. R. 
 Co., GO Fed. S03. 
 
 Construction cf injunction. — 
 An injunction restraining defendants 
 named in the bill, their confederates, 
 and all others associated with them, 
 from in'erferir.g witli the plaintiff's 
 employees now in its employ at or 
 u^on its premises or from interfer- 
 ing with any person in or upon its 
 i r i es who may desire to enter 
 it employment, by the use of threats, 
 p r - nal violence, intimidation or by 
 any other means wiia' soever calcu- 
 1 -ted to intimidate, terrorize, end 
 i ! ■" n or place in fear any of the 
 employees of the plaintiff, in any 
 niPTTer whatsoever, at or upon its 
 p'-emisea and also enjoining such 
 persons from going upon plaintiffs 
 
 premises to induce employees to quit 
 work, or from congregating in or 
 about the premises tor such purpose 
 or from interfering with plaintiff's 
 employees in passing to and from 
 their work, is to be construed as in- 
 hibiting the defendants and all other 
 persons subject to the injunction 
 from using personal violence or intim- 
 idation of any sort of the employees 
 of the plaintiff. Ex parte Richards, 
 117 Fed. 658. 
 
 In New York it is decided that 
 the only mode of redress open to 
 parties generally, for injuries occa 
 sioned to them through the voluntary 
 combination of others engaged in sim- 
 ilar employments with a view of in- 
 fluencing and controlling the gen- 
 eral conduct and management of such 
 trade or employment, is prosecution 
 under the Penal Code, § 1G8, and 
 unless some injury has been in- 
 flicted on the person or some right 
 of property has been invaded, de- 
 stroyed or prejudiced an injunction 
 will not lie. Russell & Sons v. 
 Stampers & G. I. L. Union, 57 Misc. 
 R. (N. Y.) 96, 107 N. Y. Supn. 301, 
 citing Thomas v. Musical M. P. 
 Union, 121 N. Y. 45, 24 N. E. 24. 
 
 A labor nnion may be re- 
 strained by injunction from at- 
 tempting to enforce an edict to em- 
 ployers, dictating to them that non- 
 union men shall not be employed and 
 that they will not be permitted to 
 operate their plant with such em- 
 ployees. Otis Steel Co. v. Local 
 Union, 110 Fed. 698. 
 
 759
 
 ,§ 504 Relating to Strikes, Boycotts and Monopolies. 
 
 freely to him. 2 So where in a certain mining district non-union 
 men were employed and members of a miners' organization, the 
 object of which was to secure uniform wages, established camps 
 in such mining district making a display of force to induce the 
 non-union men to join the union, and threats were in fact made 
 and in some cases assaults for a refusal to join such union, it was 
 decided that an injunction should be granted against the continu- 
 ance of such camps and the further display of force to interfere 
 with the rights of the employer or employees. 3 And in case of a 
 strike against a railroad corporation in the hands of a receiver an 
 injunction will be granted to restrain those acts which are desigued 
 to physically cripple the property, or to actually obstruct the opera- 
 tion of the road, or interference with employees who do not wish 
 to quit or to prevent by intimidation or other wrongful modes or 
 by any device the employment of others to take the place of those 
 quitting. 4 Again, where persons had left the employ of a manu- 
 facturer it was held that they would be restrained by injunction 
 from displaying banners in front of his premises as a part of a 
 scheme to prevent persons from entering into or continuing in his 
 employment. 5 And the granting of an injunction against strikers 
 restraining the doing of certain unlawful acts should not be re- 
 fused merely because it will operate to break the strike. So it is 
 said that a court is not a " strike breaker " and is not engaged in 
 that business whether it be a State or Federal court, and its duties 
 are not properly to be administered on any such suggestion. If 
 that should be the effect of a preliminary injunction, or a final 
 decree for that matter, it is only because the defendants voluntarily 
 will have it so, and prefer to abandon all rightful action in main- 
 taining their organized strike, because they cannot act wrongfully, 
 or, at least, cannot do those things which are pronounced wrongful 
 
 2. Jersey City Printing Co. v. 5. Sherry v. Perkins, 147 Mass. 
 Cassidy, 63 N. J. Eq. 759, 53 Atl. 230. 212, 17 N. E. 307, where Allen, J., 
 
 3. Reinecke Coal Min. Co. v. Wood, also cited and relied on Gilbert v. 
 112 Fed. 477. Mickle, 4 Sandf. Ch. (N. Y.) 357; 
 
 4. Arthur v. Oakes, 63 Fed. 310, Springfield Spinning Co. v. Riley, L. 
 11 C. C. A. 209, 25 L. R. A. 414; R. 6 Eq. 551. In Collard v. Mar- 
 Farmers' Loan & T. Co. v. Northern shall (1892), 1 Ch. 571, an interim 
 Pac. R. Co., 60 Fed. 803. injunction was granted to restrain 
 
 760
 
 Relating to Strikes, Boycotts and Monopolies. § 504a 
 
 by the courts. 6 The equitable remedy to restrain unlawful acts 
 on the part of strikers is an independent remedy arising out of the 
 conditions of inadequacy of that otherwise wholly independent 
 remedy of an action at law for damages. Upon neither of these 
 does the remedy of criminal prosecution have any bearing, except 
 that if the criminal law be so thoroughly executed that there would 
 then be no occasion for actions at law for damages or bills in equity 
 for injunction. 7 
 
 § 504a. What constitutes intimidation. — A display of force by 
 strikers against laborers who wish to work, such as surrounding 
 them in large numbers applying opprobious epithets to them and 
 urging them in a hostile manner not to go to work though no force 
 be actually used, is held to be as much intimidation as actual 
 violence itself, and such conduct may be restrained by injunction. 8 
 So where two hundred striking miners marched back and forth 
 past a mine where non-union men were employed and when the 
 latter left work the strikers lined up on each side of the road where 
 the miners must cross in leaving work, it was held though there 
 were no threats or no loud taunting or boisterous language, the 
 purpose of the strikers was to intimidate the men and thereby 
 induce them to leave their work, and secure their co-operation in 
 closing the mines, and that such actions being intimidating and 
 unlawful they were guilty of a violation of a preliminary injunc- 
 tion. 9 
 
 the publication of circulars and kinds of coercion: (1) A threat 
 
 placards, falsely representing that a by word or act of an individual or by 
 
 strike was on at a certain factory, a combination of persons, to do some- 
 
 which injured its business. thing unlawful, reasonably calculated 
 
 6. American Steel & Wire Co. v. to compel the person threatened to do 
 Wire Drawers & D. M. Unions, 90 or not to do something; and (2) re- 
 Fed. 598. quest or persuasion by or on behalf 
 
 7. Southern Ry. Co. v. Machinists' of a combination of persons to do 
 Local Union, 111 Fed. 49. or not to do something, resulting in 
 
 8. O'Neil v. Behanna, 182 Pa. St. coercion of the will from mere force 
 236, 37 Atl. 843, 61 Am. St. Rep. of numbers. Allis-Chalmers Co. v. 
 702, 38 L. R. A. 382; Wick China Iron Moulders' Union, 150 Fed. 155, 
 Co. v. Brown, 164 Pa. St. 449, 30 173. Per Sanborn, J. 
 
 Atl. 261. 9. Mackall v. Ratchford, 82 Fed. 
 
 Intimidation denotes two 41. 
 
 761
 
 § 504b Relating to Strikes, Boycotts and Monopolies. 
 
 § 504b. Picketing by strikers. — Peaceful picketing is permis- 
 sible, and as long as it is contined strictly and in good iaith to 
 gaining information and to peaceful persuasion and argum nr, .t 
 is not forbidden by law. 10 An injunction will not be granted lo 
 prevent strikers from peacefully picketing in reasonable numbers 
 for the purpose of observation only of the premiss of the ir former 
 employer from the highways or streets in its vicinity and endeavor- 
 ing by argument, persuasion or appeal only, to prevent other p r- 
 sons from b. coining employees of such employer. 11 But when 
 picketing extends beyond the limits of peaceable persuasion and 
 argument and becomes persuasion by intimidation, it is then con- 
 demned by the courts and may be enjoined. 12 So it has be< n 
 declared that where peaceful picketing develops as it gem rally 
 do s in a strike, into strong, persistant and organized persuasion, 
 and social pressure of every description, making the condition of 
 workmen disagreeable and intolerable, followed by hints of injury, 
 veiled threats, offensive or abusive language, and occasional 
 instances of assault and personal violence, the case is then e:ne 
 properly within the powe r of a court to afford relief by injunction. 13 
 Se> picketing, in proximity to the employer's place of business or 
 elsewhere on the streets of a city, if it in fact annoys or intimidates 
 
 10. Goldfield Consol. Mines Co. v. junction. See Atchison, T. & S. F. 
 Goldfield Miners Union, 159 Feel. 51)0, R. Co. v. Gee, IS'.) Fed. 582. 
 
 521; Senile Mfg. Co. v. Terry. 5(5 Proof of allegations. — In an 
 Misc. It. (N. Y. ) 205, 100 N. Y. Supp. action brought against a labor union 
 438; But'erick Pub. Co. v. Typo- and its officers and members lo re- 
 graphical Union 50 Misc. 11. (N. Y.) strain them from interfering with 
 1. ]()() N. Y. Supp. 2!)2. the plaintiff in the conduct of his 
 
 11. Senile Mfg. Co. v. Terry, 5G business by stationing pickets near 
 Misc. R. (N. Y.) 205, 100 N. Y. bis place of business it is the right 
 Supp. 438. of the defendants to insist upon 
 
 12. Gold field Consol. Mines Co. v. proof of every material allegation of 
 Goldfiedd Miners' Union, 15!) Fed. the complaint which has been con- 
 500 521 ; Barnes & Co. v. Chicago troverted by the answer. Crescent 
 Typographical Union, 232 HI. 424, 83 Feather Co. v. United Upholsterers' 
 N. E. 040; Vilter Mfg. Co. v. Union (Cal. S. C. 1008). 95 Pac. 871. 
 Humphrey (Wis. 1907), 112 N. W. 13. Allis-Chalmers Co. v. Iron 
 1095. See Lyons v. Wilkins. 74 Law Moulders' Union, 150 Fed. 155, 173. 
 T. Hep. 35S, (55 L. J. Ch. N. S. G01. Per Sanborn, J. 
 
 Picketing as violation of in- 
 
 7G2
 
 Relating to Strikes, Boycotts and Monopolies. § 504c 
 
 the new employees, is not allowable. The streets are for public 
 use, and the new employee has the same right to go back and forth, 
 freely and without molestation, and without being harrassed by so- 
 called arguments, and without being picketed, as has any other 
 person. 14 Therefore, it is a general rule that where picketing is 
 accompanied by the use of force, threats or intimidation either in 
 respect to the employer, his employees, or those seeking to enter 
 his employ, an injunction against such acts will b? granted. 10 So 
 where it appeared that strikers, who had been in the employ of the 
 complainant, had for several weeks both day and night, patrolled 
 the streets adjacent to the complainant's mills for the purpose of 
 persuading other workmen from taking their places, and it ap- 
 peared also that several conflicts had occurred between the strikers 
 and others, it was decided that the strikers should be enjoined from 
 so acting, as violating the property rights of the plaintiffs in the 
 streets, their liberty of contracting for substituted labor, and the 
 liberty of the substitutes, to work and to pass through the streets 
 to their work. In this case the court declared that physical 
 battery and assaults were not necessary to constitute unlawful 
 force and that the most potential and unlawful force or 
 violence might exist without lifting a finger against any man, or 
 uttering a word of threat against him. 16 In Massachusetts it is 
 d( cided that picketing, organized pressure, indirect threats of harm, 
 although there be no express intimidation, and although the lan- 
 guage used be courteous and gentlemanly, amount to intimidation, 
 and are unlawful, not justified by the motive of economic benefit 
 to the union. 17 
 
 £ 504c. Rights of employees in respect to striking. — The law 
 
 do s not prohibit workmen from holding conferences, and discuss- 
 
 14. Union Pac. R. Co. v. Ruef, 120 ner, 107 Mass. 92, 44 N. E. 1077, 35 
 Fed. 102. Per McPlierson, J. L. R. A. 722, 57 Am. St. Kep. 443; 
 
 15. Allis-Clialmers Co. v. Reliable New York Central Iron Works v. 
 Lodge, 111 Fed. 2G4; Otis Steel Co. Brennan, 105 N. Y. Supp. 8(i5. 
 
 v. Local Union, 110 Fed. 698; Frank- 16. American St-.-el & Wire Co. v. 
 
 liu Union v. People, 220 111. 355, 77 Wire Drawers & D. M. Unions, 90 
 
 N. E. 170; Cliristenson v. Kellogg, Fed. 008. 
 
 110 111. App. 01; Vegelahn v. Gunt- 17. Vegelahn v. Guntner, 107 
 
 763
 
 § 505 Eelating to Strikes, Boycotts and Monopolies. 
 
 ing their grievances with the object and purpose of striking or 
 ceasing work at a preconcerted time. 18 And workmen are not for- 
 bidden by law from seeking, taking, or following the advice of the 
 officers of their union or labor organization in regard thereto. 19 
 And the right of workmen to combine and to cease their employ- 
 ment in a body is also not subject to dispute, it being declared that 
 such right is as absolute as the right of an employer to discharge 
 any number of men in his employment. 20 Nor will either an inter- 
 locutory decree or a final decree for a perpetual injunction be con- 
 strued as requiring the abandonment of a lawfully conducted 
 strike. 21 
 
 § 505. Mere enticement or persuasion of workmen not en- 
 joined. — A permanent injunction will not be granted against a 
 combination of persons whose object is to entice away workmen 
 from their employment, nor can the employer maintain an action 
 in equity to recover such damages as he has sustained. 22 Members 
 of workingmen's associations have the right, either as individuals, 
 or as an organization, to cease to work for any employer, and to 
 use all peaceful and lawful means to induce others to cease to work 
 for him. 23 And strikers have the right to endeavor by peaceful 
 
 Mass. 92, 44 N. E. 1077, 35 L. R. A 
 722, 57 Am. St. Rep. 443. 
 
 18. Delaware, L. & W. R. Co. v 
 Switchmens' Union, 158 Fed. 541. 
 
 19. Delaware, L. & W. R. Co. v 
 Switchmens' Union, 158 Fed. 541. 
 
 20. Jersey City Printing Co. v 
 Cassidy, 63 N. J. Eq. 759, 53 Atl 
 230, holding that union workmen 
 have the right to strike on the em 
 ployee's refusal to discharge non 
 union men in his employ. See, also, 
 Karges Furn. Co. v. Amalgamated 
 Woodworkers, 165 Ind. 421, 75 N. E. 
 877; Murdock v. Walker, 152 Pa. 
 St. 595, 25 Atl. 492, 34 Am. St. Rep. 
 678. 
 
 This right we also recognized in 
 
 a large proportion of the decisions 
 in regard to this subject. 
 
 21. American Steel & W. Co. v. 
 Wire Drawers & D. M. Unions, 90 
 Fed. 598. 
 
 22. Reynolds v. Everett, 50 N. Y. 
 St. Rep. 889. In Johnston Harvester 
 Co. v. Meinhardt, 9 Abb. N. C. (N. 
 Y.) 401, aff'd 24 Hun, 489, Macom- 
 ber, J., said he was disinclined to ex- 
 tend " the doctrine of recovery for 
 enticing away servants, where both, 
 in fact and theory, the person enticed 
 is a free agent to come and go as he 
 will, responsible only like other per- 
 sons for the violation of his contract 
 or his duty." 
 
 23. Murdock v. Walker, 152 Pa. 
 
 764
 
 Relating to Strikes, Boycotts and Monopolies. § 505 
 
 argument or persuasion to secure the co-operation of non-union 
 men provided the persuasion is of such a character as to leave the 
 person solicited feeling free to do as he pleases and he is not per- 
 
 St. 505, 25 Atl. 492, 34 Am. St. Rep. 
 678. The following extract is from 
 the valuable opinion of Gaines, J., in 
 Queen Ins. Co. v. State (Tex. 1893), 
 24 S. W. 397: "Mr. Freeman, in 
 his note to the case of People v. 
 Fisher, 28 Am. Dec. 508, says: 'Re- 
 cent decisions in England, and the 
 spirit now prevailing there and in 
 this country, of giving encourage- 
 ment to workmen in their endeavors 
 to associate themselves into organi- 
 zations for their mutual benefit, have 
 settled beyond question that unem- 
 ployed workmen may unite and agree 
 not to work unless for a certain 
 price. This is a plain right, upon 
 which no doubt ought ever to have 
 existed.' The learned annotator then 
 quotes: 'The law is clear that work- 
 men have a right to combine for 
 their own protection, and to obtain 
 such wages as they may choose to 
 agree to demand;' citing Reg. v. 
 Rowlands, 5 Cox, Crim. Cas. 436, 
 460. In Com. v. Hunt, 4 Mete. 
 (Mass.) Ill, it was held by the Su- 
 preme Court of Massachusetts that 
 an association among journeymen 
 boot-makers, in which they bound 
 themselves not to work for any per- 
 son who employed one not a member 
 of the association, was not indictable 
 at common law. Following that de- 
 cision, that court also held, in Bowen 
 v. Matheson, 14 Allen, 499, that an 
 agreement among certain defendants 
 by which they sought to compel the 
 plaintiff, a shipping master, among 
 other things, to ship men from them 
 at an established rate of wages, was 
 not illegal, and did not give a ground 
 of action, although the plaintiff's 
 
 business had been damaged by the 
 conspiracy. So, also, in Carew v. 
 Rutherford, 106 Mass. 10, they say 
 that ' it is no crime for any number 
 of workmen to associate themselves, 
 and agree not to work for or deal 
 with certain men or certain classes 
 of men, or work under certain wages 
 or without certain conditions.' We 
 take it, therefore, that the weight of 
 authority is against the proposition 
 that such a combination among 
 workmen was indictable at common 
 law. It does not follow, however, 
 that any agreement of that character 
 is not against public policy, and 
 therefore void; but it is proper to 
 show that it was not an indictable 
 offense at common law, for, if so, any 
 contract in pursuance of such an 
 agreement would have been illegal, in 
 the sense that it would not be en- 
 forceable in the courts. Upon the 
 question whether an agreement 
 among workmen to raise their wages 
 is contrary to public policy, as being 
 in restraint of trade, there is some 
 conflict in the authorities. In Collins 
 v. Locke, 4 App. Cas. 674, the judi- 
 cial committee of the privy council 
 held that a contract between steve- 
 dores in a certain port, by which 
 they agreed to parcel out the steve- 
 doring business, was not void, as a 
 contract in restraint of trade, at 
 common law. The court says: 'The 
 objects which this agreement has in 
 view are to parcel out the stevedor- 
 ing business of the port among the 
 parties to it, and to prevent compe- 
 tition at least among themselves, and 
 also, it may be, to keep up the price 
 to be paid for the work. Their lord- 
 
 765
 
 § 505 Relating to Strikes, Boycotts and Monopolies. 
 
 sanded to do that which in him would bo unlawful. 24 Indirect 
 interference by a labor union with the employer's business, not 
 amounting to coercion, by preventing him from getting workmen 
 to carry on his shop, is not unlawful so long as the combination is 
 merely taking measures to secure its own legitimate advantage or 
 economic advancement, although harm may incidentally result to 
 the employer. 25 So in one case the rule is laid down that strikers 
 
 ships are not prepared to say tliat 
 an agreement having these objects is 
 invalid if carried into ell'cet by 
 proper means — tliat is, by provisions 
 reasonably necessary for the pur- 
 pose — though the effect of them 
 might be to create a partial restraint 
 upon the power of the parties to ex- 
 ercise their trade.' In Association v. 
 Walsh, 2 Daly, 1, which was a civil 
 action, it was held that it was not 
 unlawful for workmen to agree that 
 they would not work below certain 
 rates, and that a by-law of an associ- 
 ation which provided a pecuniary 
 penalty for the violation by way of 
 a fine could be recovered. The deci- 
 sion was not by a court of last re- 
 sort, but the opinion is able, learned, 
 and exhaustive, and, as it seems to 
 us, convincing. See, also, Sayre v. 
 Association, 1 Duv. 1-13. In Ladd v. 
 Manufacturing Co., 53 Tex. 172; it 
 was also decided, in effect, tliat a 
 combination among the compressing 
 companies in the city of Galveston, 
 by which they increased the prices 
 for compressing cotton, was not un- 
 lawful. This proposition is based 
 distinctly upon the ground that com- 
 pressing cotton is not a public busi- 
 ness. On the other hand, it is held 
 by the Supreme Court of Illinois, in 
 More v. Bennett, HO 111. 69, 29 N. 
 E. 888, that an association of ste- 
 nographers, one of the objects of 
 which was to control prices to be 
 
 charged for work by its members, is 
 an illegal combination, and that its 
 rules would rot be enforced so as to 
 sustain an action of one member 
 against another. The cases cited all 
 relate to combinations between car- 
 riers or dealers in, or producers of, 
 staple articles of commerce, as the 
 opinion itself shows. The court also 
 quotes from Tiedenmn on Commer- 
 cial Paper (section 190), as follows: 
 'All combinations of capitalists or of 
 workingmen for the purpose of influ- 
 encing trade in their especial favor 
 by raising or reducing prices are so 
 far illegal that agreements to com- 
 bine cannot be enforced.' The cases 
 cited by this author do not sus- 
 tain the proposition. Morris Bun 
 Coal Co. v. Barclay Coal Co., G8 Pa. 
 St. 173, was a combination to affect 
 the price of coal. Stanton v. Allen, 
 5 Denio, 434, was an association 
 composed of the proprietors of canal 
 boats to regulate the rate of trans- 
 portation. In the other cases cited — 
 Brisbane v. Adams, 3 N. Y. 129; 
 Noyes v. Day, 14 VI. 384; Doolin v. 
 Ward. G Johns. 194; and Thompson 
 v. Davies, 13 Johns. 112 — it is sim- 
 ply held that agreements to prevent 
 competition at auction sales are con- 
 trary to public policy and void." 
 
 24. Goldfield Consul. Mines Co. v. 
 Goldfield Miners' Union, 159 Fed. 
 500. 
 
 25. Allis Chalmers Co. v. Iron 
 
 766
 
 Relating to Strikes, Boycotts and Monopolies. § 505a 
 
 Bave the right to argue or discuss with new employers the question 
 whether the latter shall work for the company and have the right 
 to persuade them if thry can. In presenting the matter, however, 
 strikers have no right to use force or violence, or to terrorize or 
 intimidate the new employees. The new employee has the right 
 to come and go as he pleases, without ft ar or molestation, and 
 without being compelled to discuss this or any other question, and 
 without being guarded or picketed; and persistent and continued 
 and objectionable p:rsuasion by numbers is of itself intimidating 
 and not allowable. 26 And an injunction will lie to restrain a 
 trespass by employers on a strike, on the property of an employer. 27 
 And it has be:n decided that an employer is entitled to an injunc- 
 tion restraining third persons, such as strikers, from interfering 
 with his employees against their consent, seeking by threats or 
 persuasions to induce the latter, who are under a contract to render 
 service, from breaking their contract and quitting the service. 2 * 
 And a suit may be entertained to enjoin a combination of persons 
 from interfering with and preventing ship owners from shipping a 
 crew, on the ground of preventing a multiplicity of suits at law, 
 and for the reason that damages for interrupting the business of 
 pending enterprises and voyage must in their nature ba con- 
 jectural. 29 The question as to the right of employers to an in- 
 junction restraining strikers from inducing employees, by entreaty 
 or perusasion, to leave the service of their employers and not to 
 enter their service is one for the court to determine in its dis- 
 cretion in view of the facts of the particular case which it has been 
 decided is not reviewable in the appellate court. 30 
 
 § 505a. Interference with access to premises. — Strikers, while 
 they have a right to use the streets, must not trespass on the rights 
 of others and if they violate the right of access of the owner of a 
 house, whether it be a dwelling house, store house, or mill house, 
 
 Moulders' Union, 150 Fed. 155, 171. Cassidy, G3 N. J. Eq. 759, 53 Atl. 
 
 Per Sanborn, J. 230. 
 
 26. Union Pac. P. Co. v. Puef, 120 29. Hagan v. Ulindell, 56 Fed. 
 Fed. 102. Per MePlierson, J. G96, aff'g 54 Fed. 40. 
 
 27. New York, etc., P. Co. v. Wen- .30. Reynolds v. Everett, 1-14 N. 
 ger. 24 Abb. N. C. (N. Y.) 2(57, note. Y. 189, 39 N. E. 72. 
 
 28. Jersey City Printing Co. v. 
 
 707
 
 § 506 Relating to Stuikks, Boycotts and Monopolies. 
 
 such owner has a civil action and may also abate it by injunction 
 in equity as a private nuisance. 81 
 
 § 506. What trade combinations not enjoined. — Tn Minnesota 
 it, has been decided that the right which one mas lms f<> refuse to 
 work for or deal with another man or class of men, any number of 
 men may agree to exercise jointly, unless he or they are charged 
 by contract Or by law with some public duty. A large number 
 of retail lumber dealers formed a voluntary association, by which 
 they mutually agreed that they would not deal with any manu- 
 facturer or wholesale dealer who should sell lumber directly to 
 consumers, no|. dealers, at any point wli re a member of the asso- 
 ciation was carrying on a retail yard, and provided in their by laws 
 that, whenever any wholesale dealer or manufacturer made any 
 such sale, their secretary should notify all the members of the 
 fact. The plaint ill' having made such a sale, the secretary threat- 
 ened to send notice of the fact, as provided in the by-laws, to all 
 the members of the association. It was. held not actionable, and 
 no ground for an injunction. 1 " 
 
 31. Amorionn Stool & Wiro Co. v. 
 Wire Drawers & i>. M. Unions, 90 
 Fed 608. Judge Hammond said in 
 
 lliis case: " This is sound law, from 
 
 which no unruly force of public pol- 
 Icy should carry a judge any dis- 
 tance at nil, no matter how ably it is 
 urged upon him by learned and elo 
 
 <|uoiit counsel pleading for the rights 
 of labor as against capital, corpora- 
 tions, and despised foreigners, who 
 organi/.e 'scabs' to resist the strik- 
 ers in favor of odious trusts." 
 
 32. Bohu MTg Co. v. Ilollis, f>4 
 
 Minn. 'J'i:t, r>c> N. W. 1110, per 
 
 Mitchell, J.: "The case presents 
 one phase of a subject which is likely 
 to be one of the most important ami 
 difficult which will confront the 
 courts during the next quarter of a 
 century, This is the age Of associa- 
 tions and unions, in all departments 
 of labor and business, for purposes of 
 
 mutual benefit and protection. Con- 
 fined to proper limits, both as to end 
 
 and moans, they are not only lawful, 
 but laudable. Carried beyond those 
 limits, they are liable to become dan- 
 gerous agencies for wrong and op- 
 pression. Beyond what limits these 
 associations or combinations cannot 
 go, without interfering with the le- 
 gal rights of others, is the problem 
 which, in various phases, the courts 
 will doubtless be frequently called to 
 pass upon. There is, perhaps, dan- 
 ger that, influenced by such terms of 
 illusive meaning as ' monopolies,' 
 ' trusts,' ' boycotts/ ' strikes,' and 
 the like, they may be led to transcend 
 the limits of their jurisdiction, and, 
 like the Court of King's Bench in 
 Bagg's Case, 11 Coke, 98a, assume 
 that, on general principles, they have 
 authority to correct or reform every- 
 thing which they may deem wrong, 
 or, as Lord Kllsmere puts it, ' to 
 manage the state.' But whatever 
 doubts or difficulties may arise in 
 other cases, presenting other phases 
 
 T.R
 
 Relating to Strikes, Boycotts and Monopolies. § 507 
 
 § 507. Lawful trade combinations. — Wli'-re ship owners in 
 order to secure a carrying trade exclusively for themselves and at 
 profitable rates formed an association and agreed that the number 
 of ships to be sent by members of the association to the loading 
 port, the division of cargoes, and the freights to be demanded 
 should be the subject of regulation; that a rebate of five per cent. 
 on the freights should be allowed to all shippers who shipped only 
 
 of the general subject involved here, 
 it seems to us that there can be none 
 on the facts of the present case. 
 Both the affidavits and brief in be- 
 half of the plaintiff indulge in a 
 great deal of strong, and even exag- 
 gerated, assertion, and in many 
 words and expressions of very in- 
 definite and illusive meaning, 
 BUcb as ' wreck,' ' coerce,' ' ex- 
 tort,' ' conspiracy,' ' monopoly,' 
 ' drive out of business,' and the 
 like This looks very formidable, 
 but in law, as well as in mathemat- 
 ics, it simplifies things very much to 
 reduce them to their lowest terms. 
 It is conceded that retail lumber 
 yards in the various cities, towns 
 and villages are not only a public 
 convenience, but a public necessity; 
 also, that, to enable the owners to 
 maintain these yards, they must sell 
 their lumber at a reasonable profit. 
 It also goes without saying that to 
 have manufacturers or wholesale 
 dealers sell at retail, directly to con- 
 sumers, in the territory upon which 
 the retail dealer depends for his cus- 
 tomers, injuriously affects and de- 
 moralizes his trade. This is so well 
 recognized as a rule of trade, in 
 every department, that generally 
 wholesale dealers refrain from sell- 
 ing at retail within the territory 
 from which their customers obtain 
 their trade. Now, when reduced to 
 its ultimate analysis, all that the re- 
 
 tail lumber dealers, in this case, 
 have done, is to form an association 
 to protect themselves from sales by 
 wholesale dealers or manufacturers, 
 directly to consumers or other non- 
 dealers, at points where a member of 
 the association is engaged in the re- 
 tail business. The means adopted to 
 effect this object are simply these: 
 They agree among themselves that 
 they will not deal with any wholesale 
 dealer or manufacturer who sells di- 
 rectly to customers, not dealers, at a 
 point where a member of the associa- 
 tion is doing business, and provide 
 for notice being given to all their 
 members whenever a wholesale dealer 
 or manufacturer makes any such 
 sale. That is the head and front of 
 defendant's offense. It will be ob- 
 served that defendants were not pro- 
 posing to send notices to any one but 
 members of the association. There 
 was no element of fraud, coercion or 
 intimidation, cither towards plaintiff 
 or the members of the association. 
 True, the secretary, in accordance 
 with section 3 of the by-laws, made 
 a demand on plaintiff for 10 per cent, 
 on the amount of the two sales. But 
 this involved no element of coercion 
 or intimidation, in the legal sense of 
 those terms. It was entirely optional 
 with plaintiff whether it would pay 
 or not. If it valued the trade of the 
 members of the association higher 
 than that of non-dealers at the same 
 
 769 
 
 49
 
 § 507 Relating to Strikes, Boycotts and Monopolies. 
 
 with members.; and that agents of members should be prohibited 
 on pain of dismissal from acting in the interest of competing ship 
 owners ; and when plaintiffs who were ship owners excluded from 
 the association, sent ships to the loading port to obtain cargoes, 
 the associated owners thereupon sent more ships and underbid 
 plaintiffs so that plaintiffs were obliged- to carry at unremunerative 
 rates; and threatened to dismiss certain agents if they loaded 
 
 points, it would probably conclude to 
 pay; otherwise, not. It cannot be 
 claimed that the act of making this 
 demand was actionable; much less, 
 that it constituted any ground for 
 an injunction; and hence this matter 
 may be laid entirely out of view. 
 Nor was any coercion proposed to be 
 brought to bear on the members of 
 the association, to prevent them 
 from trading with the plaintiff. Af- 
 ter they received the notices, they 
 would be at entire liberty to trade 
 with plaintiff, or not, as they saw fit. 
 By the provisions of the by-laws, if 
 they traded with the plaintiff, they 
 were liable to be 'expelled;' but this 
 simply meant to cease to be membei's. 
 It was wholly a matter of their own 
 free cboice, which they preferred — to 
 trade with the plaintiff, or to con- 
 tinue members of the association. 
 So much for the facts, and all that 
 remains is to apply to them a few 
 well-settled, elementary principles of 
 law: 
 
 " 1. The mere fact that the pro- 
 posed acts of the defendants would 
 have resulted in plaintiff's loss of 
 gains and profits does not, of itself, 
 render those acts unlawful or action- 
 able. That depends on whether the 
 acts are, in and of themselves, un- 
 lawful. ' Injury,' in its legal sense, 
 means damage resulting from an un- 
 lawful act. Associations may be en- 
 tered into, the object of which is to 
 
 adopt measures that may tend to di- 
 minish the gains and profits of an- 
 other, and yet, so far from being un- 
 lawful, they may be highly meritori- 
 ous. Com. v. Hunt, 4 Mete. (Mass.) 
 Ill; Mogul Steamship Co. v. Mc- 
 Gregor, 21 Q. B. Div. 544. 
 
 " 2. If an act be lawful — one that 
 the party has a legal right to do — 
 the fact that he may be actuated by 
 an improper motive does not render 
 it unlawful. As said in one case, 
 ' the exercise by one man of a legal 
 right cannot be a legal wrong to an- 
 other,' or, as expressed in another 
 case, ' malicious motives make a bad 
 case worse, but they cannot make 
 that wrong which, in its own essence, 
 is lawful.' Heywood v. Tillson, 75 
 Me. 225; Phelps v. Nowlen, 72 N. Y. 
 39; Jenkins v. Fowler, 24 Pa. St. 
 308. 
 
 " 3. To enable the plaintiff to main- 
 tain this action, it must appear that 
 defendants have committed, or are 
 about to commit, some unlawful act, 
 which will interfere with, and inju- 
 riously affect, some of its legal 
 rights. We advert to this for the 
 reason that counsel for plaintiff de- 
 votes much space to assailing this 
 association as one whose object is un- 
 lawful because in restraint of trade. 
 We fail to see wherein it is subject 
 to this charge; but, even if it were, 
 this would not, of itself, give plain- 
 tiff a cause of action. No case can 
 
 770
 
 Relating to Steikes, Boycotts and Monopolies. § 507 
 
 plaintiffs' ships and circulated a notice thait the rebate of five per 
 cent, would not be allowed to any person who shipped on plaintiffs' 
 vessels, it was held they were not subject to injunction, as their 
 acts were done with the lawful object of extending their trade and 
 increasing their profits for the accomplishment of which they had 
 not used any unlawful means, but it was assumed their acts would 
 have been unlawful if done merely to injure the plaintiffs. 33 
 
 be found in which it was ever held 
 that, at common law, a contract or 
 agreement in general restraint of 
 trade was actionable at the instance 
 of third parties, or could constitute 
 the foundation for such an action. 
 The courts sometimes call such con- 
 tracts ' unlawful ' or ' illegal,' but in 
 every instance it will be found that 
 these terms were used in the sense, 
 merely, of ' void ' or ' unenforceable ' 
 as between the parties; the law con- 
 sidering the advantage so imposed 
 upon the contract a sufficient protec- 
 tion to the public. Mogul Steamship 
 Co. v. McGregor, 23 Q. B. Div. 598. 
 
 " 4. What one man may lawfully 
 do singly, two or more may lawfully 
 agree to do jointly. The number who 
 unite to do the act cannot change its 
 character from lawful to unlawful. 
 The gist of a private action for the 
 wrongful act of many is not the com- 
 bination or conspiracy, but the dam- 
 age done or threatened to the plain- 
 tiff by the acts of the defendants. If 
 the act be unlawful, the combination 
 of many to commit it may aggravate 
 the injury, but cannot change the 
 character of the act. In a few cases 
 there may be some loose remarks ap- 
 parently to the contrary, but they 
 evidently have their origin in a con- 
 fused and inaccurate idea of the law 
 of criminal conspiracy, and in fail- 
 ing to distinguish between an unlaw- 
 ful act and a criminal one. It can 
 
 never be a crime to combine to com- 
 mit a lawful act, but it may be a 
 crime for several to conspire to com- 
 mit an unlawful act, which, if done 
 by one individual alone, although un- 
 lawful, would not be criminal.. 
 Hence, the fact that the defendants 
 associated themselves together to 
 do the act complained of is wholly 
 immaterial in this case. We have re- 
 ferred to this for the reason that 
 counsel has laid great stress upon 
 the fact of the combination of a large 
 number of persons, as if that, of it- 
 self, rendered their conduct action- 
 able. Bowen v. Matheson, 14 Allen, 
 499; Mogul Steamship Co. v. Mc- 
 Gregor, 23 Q. B. Div. 598; Parker v. 
 Huntington, 2 Gray, 124; Wellington 
 v. Small, 3 Cush. 145; Payne v. Rail- 
 way Co., 13 Lea, 507." 
 
 83. Mogul Steamship Co. v. Mc- 
 Gregor (1892), App. Cas. 25, aff'g 
 23 Q. B. D. 598, per Lord Morris: 
 " All the acts done and the means 
 used by the defendants were acts of 
 competition for the trade. There was 
 nothing to disturb any existing con- 
 tract of the plaintiffs or to induce 
 any one to break such. Their action 
 was aimed at making it unlikely that 
 any one would enter into contracts 
 with the plaintiffs, the defendants of- 
 fering such competitive inducements 
 as would probably prevent them. The 
 use of rhetorical phrases in the cor- 
 respondence cannot affect the real 
 
 771
 
 i§ 507a Relating to Strikes, Boycotts and Monopolies. 
 
 § 507a. Conspiracy generally. — Where two or more persona 
 conspire and confederate together for the purpose of destroying 
 or injuring the business of another, or doing violence to his prop- 
 erty or property rights, and it is clearly made to appear that the 
 injury is threatened and imminent, and will become irreparable to 
 the suitor, an injunction will lie to restrain the conspirators. 34 As 
 to enjoining acts on the ground of a conspiracy it is said that " The 
 authorities all agree that a court of equity will not hesitate to avail 
 itself of the extraordinary process of injunction, when the circum- 
 stances of the particular case require it, in order to protect rights 
 of property against irreparable damage done by wrongdoers. Such 
 process, however, should be issued with great caution and circum- 
 spection." 35 So in a case in Wisconsin it is declared that while 
 persons have a right to combine for the purpose of promoting their 
 individual welfare in any legitimate way, yet if the purpose of 
 the combination is to inflict injury on another, and injury results, 
 a wrong is committed upon such other for which he may recover 
 damages, notwithstanding such purpose, if formed and executed 
 by an individual, would not be actionable and in such a case per- 
 sons who are injured by the unlawful combinations may maintain 
 
 substance and meaning of it. Again, 464. See, also, Rocky Mountain Bell 
 
 what one trader may do in respect of Teleph. Co. v. Montana Federation of 
 
 competition a body of traders can Labor, 156 Fed. 809; Sailors' Union 
 
 lawfully do; otherwise a large cap- v. Hammond Lumber Co., 156 Fed. 
 
 italist could do what a number of 450; National Teleph. Co. v. Kent, 
 
 small capitalists combining together 156 Fed. 173. 
 
 could not do, and thus a blow would Conspiracy defined. — A con- 
 be struck at the very principle of co- spiracy is a combination between two 
 operation and joint stock enterprise. or more persons, with the unity of 
 I entertain no doubt that a body of design for a common purpose to do 
 traders whose motive is to promote an unlawful act, or a lawful act by 
 their own trade can combine to ac- unlawful means, and cannot be sus- 
 quire, and thereby in so far as to tained by proof tending to establish 
 injure the trade of competitors, pro- merely separate causes of action 
 vided they do no more than is inci- against several defendants. Russell & 
 dental to such object and use no Sons v. Stampers & G. L. L. Union, 
 unlawful means." 57 Misc. R. (N. Y.) 96, 107 N. Y. 
 
 34. Longshore Printing Co. v. Supp. 303. 
 Howell, 26 Oreg. 527, 38 Pac. 547, 35. Longshore Printing Co. v. 
 
 46 Am. St. Rep. 640, 28 L. R. A. Howell, 26 Oreg. 527, 38 Pac. 547, 
 
 772
 
 Relating to Strikes, Boycotts and Monopolies. § 507b 
 
 an action to restrain the continuation of the operations of the con- 
 spiracy when irreparable injury will result and legal remedies 
 will prove inadequate or a multiplicity of suits may be necessary. 36 
 And in a recent case in New York it is said that a person's busi- 
 ness, when it is conducted according to law, is a property right, 
 and any unlawful interference with or any interruption of that 
 business is an injury to a property right, and a court of equity has 
 jurisdiction to restrain by injunction the carrying out of any con- 
 spiracy to destroy or injure such property, and the court is not 
 deprived of this power because of the fact that the acts are criminal 
 and could be prosecuted criminally. 37 
 
 § 507b. Conspiracy continued — Conspiracy to induce em- 
 ployees, who are in no manner dissatisfied with the terms and 
 conditions of their employment, to strike, to the injury of the 
 employer, may be enjoined. 38 Where the members of a labor union 
 conspire to induce employees to break their contracts with their 
 employer, or to leave his employ, the court has power to interfere 
 by injunction. But if it appear that the workmen upon their 
 individual responsibility desire to break their contracts and quit 
 their employment because of alleged grievances or any other reason 
 a court of equity will not interfere. 39 And a conspiracy to prevent 
 the loading or unloading of complainants' steamships, except by 
 such labor as might be acceptable to the defendants, may be en- 
 joined. 40 Members of a labor union will also be restrained by 
 injunction from carrying out a conspiracy to compel the members 
 of another union to join the former union where in the accomplish- 
 ment of such purpose strikes and boycotts are threatened to induce 
 the complainants' employers to persuade them to join, or failing in 
 that to discharge them, although no injury to property is threatened 
 
 46 Am. St. Rep. 640, 28 L. R. A. 38. United States t. Hoggerty, 116 
 
 464. Per Wolverton, J. Fed. 510; United States v. Weber, 
 
 36. Hawarden v. Youghiogheny & 114 Fed. 950. See Sailors' Union v. 
 L. C. Co., Ill Wis. 545, 87 N. W. Hammond Lumber Co., 156 Fed. 450. 
 472. 39. Delaware, L. & W. R. Co. v. 
 
 37. New York Cent. Iron Works Switclimens' Union, 158 Fed. 541. 
 Co. v. Brennan, 105 N. Y. Supp. 865, 40. Elder v. Wliitesides, 72 Fed. 
 869. Per Clarke, J. 724. 
 
 773
 
 § 507b Relating to Stkikes, Boycotts and Monopolies. 
 
 or any acts of personal violence. 41 And where the members of two 
 labor organizations entered into a conspiracy to prevent the use 
 of a certain machine by a manufacturer which object was to be 
 accomplished by notifying the manufacturer's customers not to 
 purchase the article made by such machines and to induce indi- 
 viduals and members of other organizations not to purchase goods 
 packed therein, it was decided that the plaintiff was entitled to an 
 injunction against the execution of such conspiracy. 42 And a com- 
 bination of mercantile dealers to compel another dealing in similar 
 goods to sell at prices fixed by it, or, upon his refusal so to do, to 
 prevent those of whom its members are purchasing customers from 
 selling goods to him, is, upon general legal principles, contrary to 
 public policy and void, and the members of such a combination 
 may, collectively or individually, be, by appropriate injunction, 
 restrained from carrying into effect such a purpose. 43 But a strike 
 by concerted action followed by an agreement that the strikers will 
 take peaceable means to induce other employees to join the union 
 and strike, it being expressly resolved that under no circumstances 
 shall any striker endeavor by violence or intimidation to influence 
 any workman, does not constitute a conspiracy. 41 And where em- 
 ployers of men who had left work because of a refusal to pay higher 
 wages, sent their names to other manufacturers in a similar line 
 of business in such city, stating that the men named had left upon 
 a strike and it was alleged that such manufacturers entered into a 
 conspiracy not to employ the strikers, intending by such means 
 to compel them to go without work or to return to work for their 
 former employer at such wages as he might offer, the court refused 
 to enjoin the defendants from the execution of such conspiracy, 
 it being declared that there were no approved precedents in equity 
 authorizing the enjoining of such a conspiracy. 45 
 
 41. Plant v. Woods, 176 Mass. 492, 44. Karges Furn. Co. v. Amalga- 
 57 N. E. 1011, 51 L. R. A. 339. mated Woodworkers. 165 Tnd. 421. 75 
 
 42. Hopkins v. Oxley Stave Co.,' N. E. 877, 2 L. R. A. (N. S.) 788. 
 83 Fed. 912, 28 C. C. A. 99. 45. Worthington v. Waring, 157 
 
 43. Brown v. Jacobs Pharmacy Mass. 421, 32 N. E. 744, 20 L. R. A. 
 Co., 115 Ga. 429. 41 S. E. 553, 90 342. 
 
 Am. St. Rep. 126, 57 L. R. A. 547. 
 
 774
 
 Relating to Strikes, Boycotts and Monopolies. § 507c 
 
 § 507c. Boycotts generally. — A boycott, the object of which 
 is to intimidate and force a person or persons to comply with the 
 demand of certain other persons and which in its accomplishment 
 involves an injury to the business of the one against whom it ia 
 directed by attempting to intimidate and prevent third parties not 
 to deal with such person in a business way, is an unlawful inter- 
 ference with the business of such person, which may be 
 enjoined 46 though unaccompanied by violence. 47 So an in- 
 junction was granted to restrain a boycott by a labor union 
 which threatened to drive an employer out of business and 
 which in furtherance of such action notified customers of such 
 employer, who were also employers, not to purchase goods of him 
 under threats of strikes against them. 48 And where members of 
 labor unions declared a boycott against machine-made packages, 
 or goods packed in them, it was held that the term " boycott " im- 
 plied a general prescription of all articles so manufactured and the 
 goods packed in them and that the complainant was entitled to an 
 injunction against the defendants. 49 And where a combination and 
 concert of action of labor unions against a manufacturer forced 
 customers of his, either by threats or strikes against them, to sign 
 contracts putting an end to future business with him, and 
 notices and warnings to those who might become his cusr- 
 
 46. Shine v. Fox Bros. Mfg. Co., Commonwealth, 84 Va. 927, 6 S. E. 
 
 156 Fed. 357 ; Seattle Brew. & M. Co. 620, 10 Am. St. Rep. 895. 
 
 v. Hansen, 144 Fed. 1011; Loewe v. Origin of word " boycott." See 
 
 California State Federation, 139 Fed. State v. Glidden, 55 Conn. 46, 8 Atl. 
 
 71; Beck v. Railway Teamsters' P. 890, 9 Am. St. Rep. 689. 
 
 Union, 118 Mich. 497, 77 N. W. 13, A boycott by putting on an 
 
 42 L. R. A. 407 ; Purvis v. Local No. " nnf air list " may be enjoined. 
 
 500, 214 Pa. St. 348, 63 Atl. 585; Wilson v. Hey, 232 HI. 389, 83 N. E. 
 
 Jensen v. Cooks & Waiters' Union. 39 928. 
 
 Wash. 531, 81 Pac. 1009. 47. Thomas v. Rnilway Co., 62 
 
 Tbe essential idea of a boycott Fed. 818. cited in Oxley Stave Co. v. 
 
 is a confederation, generally secret, Coopers' International Union, 72 
 
 of many persons, whose intent is to Fed. 695, 699. 
 
 injure another, by preventing any and 48. Purvis v. Local Union No. 500, 
 
 all persons from doing business with 214 Pa. St. 348, 63 Atl. 585. 
 
 him, through fear of incurring the 49. Oxley Stave Co. v. Coopers* 
 
 displeasure, persecution and venge- International Union, 72 Fed. 695. 
 ance of the conspirators. Crump v. 
 
 775
 
 §508 Relating* to Stkikes, Boycotts am> Monopolies. 
 
 tonicrs in the future were also given, it was decided that the 
 complainant was entitled to an injunction/' Airain, in a recent 
 case in Massachusetts it is decided that an employer is entitled to 
 an injunction restraining the members of labor unions from com- 
 bining together to further the strike which unjustifiably interferes 
 with his business, and from doing any acts whatever, peaceful or 
 otherwise, in furtherance thereof, including the payment of strike 
 benefits and putting the plaintiffs on an unfair list. 51 In Missouri, 
 however, under the provisions of the Bill of Ragkte that " no law 
 shall be passed impairing the freedom of speech, that every person 
 shall be free to say, write or publish whatever he will on any sub- 
 ject being responsible for all abuse of that liberty " 52 and that " no 
 person shall be deprived of life, liberty or property without due 
 process of law " 53 it is declared that the right of a person to speak, 
 write or publish is guaranteed against any interference either by 
 the Legislature or the courts which seeks to prevent it and that the 
 fact that such privilege or right is used for the purpose of boycotting 
 the business of another confers upon a court of equity no power to 
 enjoin its exercise. 54 
 
 § 508. Restraining boycott of newspapers. — A combination by 
 a trades union to boycott a newspaper for refusing to unionize its 
 office is illegal and will be enjoined, as will also the publication and 
 circulation of editorials, posters and circulars in pursuance of 
 
 50. Shine v. Fox Bros. Mfg. Co., in securing redress of such wrongs, 
 156 Fed. 357. what becomes of free speech, and 
 
 51. Reynolds v. Davis (Mass. what of personal liberty? The fact 
 1908) 84 N. E. 457. that in exercising that freedom they 
 
 52. § 14, Bill of Rights. thereby do plaintiff an actionable in- 
 
 53. § 30, Bill of Rights. jury, such fact does not go a hair 
 
 54. Clothing Co. v. Watson, 168 towards a diminution of tlie right of 
 Mo. 133, 67 S. W. 391, 56 L. R. A. free speech, etc., for the exercise of 
 951, 90 Am. St. Rep. 440. The court which if resulting in such injury, 
 said, per Sherwood, J.: "If these the Constitution makes them ex- 
 defendants are not permitted to tell pressly responsible." The court, how- 
 the story of their wrongs, or. if you ever, declared that it did not pass 
 please, their supposed wrongs, by upon questions not involved in the 
 word of mouth or with pen or print, record such as power of a court of 
 and to endeavor to persuade others equity to enjoin destruction of prop- 
 to aid them by all peaceable means, erty, or the making of threats either 
 
 776
 
 Relating to Strikes, Boycotts and Monopolies. § 508a 
 
 such combination. 55 And where the acts of a labor organization 
 in boycotting a newspaper threatened a continuing injury and 
 probable ruin of the complainant's business, the legal remedy 
 for which was inadequate and involved a number of suits, the court 
 issued an injunction restraining the defendants from doing such 
 acts. 56 
 
 § 508a. Railroad strikes affecting interstate commerce and 
 mails; right of national government. — Where the business is that 
 of handling property in the course of transportation and is a 
 matter of interstate commerce, the Federal court may enjoin any 
 
 of injury to property or of personal 
 violence." 
 
 55. Casey v. Cincinnati Typo. 
 Union, 45 Fed. 135. In this case the 
 Bulletin, the organ of the union, de- 
 clares that " the boycott is still on 
 and will be until the proprietor of the 
 rat sheet employs union men." It 
 requests all " K. of L. assemblies, 
 unions, and workingmen, to bear in 
 mind that Mr. Casey refused to em- 
 ploy or in any way recognize organ- 
 ized labor." It asks their aid in 
 compelling complainant to recognize 
 the rights of labor by withdrawing 
 their patronage from his paper, and 
 if possible let him know why. It calls 
 upon them not to patronize any mer- 
 chants who advertise in complain- 
 ant's newspaper, and if they see the 
 newspaper in any place of business 
 to refuse to buy goods unless the 
 merchant immediately stops the 
 "rat" sheet. Sage, J.: "No case 
 has been cited where upon a proper 
 showing of facts an unsuccessful ap- 
 peal has been made to a court of 
 chancery to restrain a boycott. At 
 common law an agreement to control 
 the will of employers by improper 
 molestation was an illegal con- 
 spiracy. In New York it has been 
 held that the boycott is a conspiracy 
 
 in restraint of trade. People v. Wil- 
 zig, 4 N. Y. Crim. Rep. 403; People 
 v. Kostka, 4 N. Y. Crim. Rep. 429. 
 So, also, in Virginia: Common- 
 wealth v. Shelton, 11 Va. Law Jour. 
 324. And in Connecticut: State v. 
 Glidden, 55 Conn. 46. In Emack v. 
 Kane, 34 Fed. 47, the issuing of cir- 
 culars threatening to sue for infringe- 
 ment persons dealing in a compet- 
 itor's patented article was enjoined, 
 it appearing that the charge of in- 
 fringement was not made in good 
 faith, but to injure complainant's 
 business. Blodgett, J., said: "Re- 
 dress for a mere personal slander or 
 libel may properly be left to courts 
 of law, because no falsehood how- 
 ever malicious can wholly destroy a 
 man's reputation with those who 
 know him; but statements and 
 charges intended to frighten away a 
 man's customers may ruin him finan- 
 cially, with no adequate remedy if a 
 court of equity cannot afford protec- 
 tion by its restraining writ " — dis- 
 tinguishing Kidd v. Horry, 28 Fed. 
 773; Wheel Co. v. Bemis, 29 Fed. 95. 
 
 See Matthews v. Shankland, 25 
 Misc. R. (N. Y.) 604, 56 N. Y. Supp. 
 123. 
 
 56. Barr v. Essex Trades Council, 
 53 N. J. Eq. 101, 30 Atl. 881. In this 
 
 777
 
 § 508a Relating to Strikes, Boycotts and Monopolies. 
 
 interference with or obstruction of such business. 57 In the exerciso 
 of the powers over interstate commerce and the transmission of the 
 mail which are committed to the government of the United States, 
 it is competent for the nation not only to forcibly remove all 
 obstructions to the passage of such commerce and the carrying of 
 the mails, but it may also appeal to the civil courts for an inquiry 
 and determination as to the existence and character of such alleged 
 obstructions and to invoke the aid of such courts for the removal or 
 the restraining of the same, if they are found to exist. This con- 
 clusion defining the authority of the national government in such 
 matters was reached in the Debs case, 59 in which case it was alleged 
 that an obstruction to interstate commerce and carrying of mails 
 existed, that there was a combination and conspiracy to subject 
 the control of the interstate transportation of persons and property 
 as well as the carrying of the mails to the will of the conspirators 
 and in which an injunction was prayed for to restrain such obstruc- 
 tion and to prevent carrying into effect such conspiracy. 
 
 case one injunction was held proper 
 which restrained the defendants from 
 distributing or circulating any circu- 
 lars, printed resolutions or other pub- 
 lications containing threats or ap- 
 peals against the " Newark Times, or 
 the complainants, its publishers, with 
 the design and tending to interfere 
 with their business in publishing said 
 paper, and from making any threats 
 or using any intimiaation to the 
 dealers or advertisers in such news- 
 paper tending to cause them to with- 
 draw their business from such news- 
 paper. 
 
 57. Knudsen v. Benn, 123 Fed. 
 636. 
 
 The Act of July 2, 1890, which 
 enlarged the jurisdiction of the fed- 
 eral courts, and authorized them to 
 apply the restraining power of the 
 law for the purpose of checking and 
 restraining all lawless interference 
 with the peaceable and orderly car- 
 
 riage of mails, and with the peace- 
 able and orderly conduct of railroad 
 business between the States was in- 
 tended to lay its strong hand, not 
 only upon capitalists and monopo- 
 lists, who, by combinations, under- 
 took to interfere with the business 
 and commerce of the country, and 
 subject them to punishment but on 
 the other hand, also undertook to say 
 to the laboring man of the country 
 that he should not enforce his rights, 
 by violence and lawlessness. United 
 States v. Agler, 62 Fed. 824. 
 
 Who may enforce provisions 
 of Act of Jnly 2, 1890.— The anti- 
 trust act of July 2, 1890, does not 
 enable the court to enforce its pro- 
 visions in favor of a private party 
 by a bill in equity. Southern Indi- 
 ana Exp. Co. v. United States Exp. 
 Co., 88 Fed. 659. 
 
 59. In re Debs, 158 U. S. 565, 15 
 S. Ct. 900, 39 L. Ed. 1092. 
 
 778
 
 Kelating to Steikes, Boycotts and Monopolies. § 50i) 
 
 § 509. Railroad boycotts ; violating interstate commerce act. 
 
 — A suit in equity to enforce by injunction the third section of the 
 interstate commerce act, and praying that certain railroad com- 
 panies be restrained from refusing to afford equal facilities to the 
 complainant, a connecting railroad, in the exchange of interstate 
 traffic, involves a Federal question which is sufficient to give a 
 Federal court jurisdiction of the whole cause, though remedies of 
 a similar nature may exist under State statutes or the common 
 law. 60 Where a labor organization has declared a boycott against 
 a railroad, and connecting roads are therefore refusing, or seem 
 about to refuse, to afford equal facilities to the boycotted road, in 
 violation of the third section of the interstate commerce act, they 
 may be compelled to do so by mandatory injunction, since the 
 case is urgent, the rights of the parties free from reasonable doubt, 
 and the duty sought to be enforced is imposed by law; and such 
 mandatory injunction is binding upon all officers and employees 
 of the enjoined company having proper notice thereof, whether 
 they are made parties or not. 61 Railway employees accept their 
 places under the implied condition that they will not quit their 
 employer's service under circumstances rendering such conduct a 
 
 60. Toledo, etc., R. Co. v. Penn- law, and to exchange with complain- 
 sylvania Co., 54 Fed. 746, following ant interstate freight. This was ex- 
 Osborn v. U. S. Bank, 9 Wheat. (U. pressly decided by Judge Love of the 
 S.) 738, 6 L. Ed. 204. Iowa district in a well-considered 
 
 As to the power of a court opinion in the case of Chicago, B. & 
 of equity to contrive new rem- Q. R. Co. v. Burlington R. Co., 34 Fed. 
 edies to enforce rights secured by 481. And in analogous cases, where 
 federal legislation, provided no ille- it has been sought to enforce the com- 
 gal burdens are thereby imposed. See mon-law obligation of a common car- 
 Joy v. St. Louis, 138 U. S. 1, 34 L. rier, the preliminary mandatory in- 
 Ed. 843, US. Ct. 243. junction has frequently issued. Thus, 
 
 61. Toledo, etc., R. Co. v. Penn- in the case of Coe v. Railroad Co., 
 sylvania Co., 54 Fed. 746; Coe v. 3 Fed. 775, Judge Baxter issued a 
 Railroad Co., 3 Fed. 775. In the preliminary mandatory injunction to 
 former case Taft, J., said: "As compel the defendant railroad com- 
 against the defendant companies the pany to deliver and receive cattle at 
 complainant is, therefore, clearly en- a particular cattle yard. See, also, 
 titled to a preliminary mandatory Chicago R. Co. v. New York R. Co., 
 injunction to compel them, pending 24 Fed. 516; Wolverhampton R. Co. 
 the hearing, to discharge the duties v. London R. Co., L. R. 16 Eq. 433; 
 imposed by the interstate commerce Denver R. Co. v. Atchison R. Co., 15 
 
 779
 
 § 510 Relating to Strikes, Boycotts and Monopolies. 
 
 peril to the lives and property committed to its care, or in such a 
 manner as to subject it to legal penalties and forfeitures; and 
 although, in ordinary circumstances, the employer must rely upon 
 his action at law for a breach of the condition, a court of equity has 
 power to restrain employees from acts of violence and intimida- 
 tion, and from enforcing rules of labor unions which result in 
 irremediable injuries to their employers and the public, such as 
 those requiring an arbitrary strike without cause, merely to enforce 
 a boycott against a connecting line. 62 
 
 § 510. Same subject. — A combination to induce and procure 
 the officers of a common carrier corporation subject to the pro- 
 visions of the interstate commerce act, and its locomotive engineers, 
 to refuse to receive, handle, and haul interstate freight from 
 another like common carrier, in order to injure the latter, is a 
 combination or conspiracy to commit the misdemeanor described 
 by section 10 of the interstate commerce act, and a preliminary 
 injunction may issue against the chief member of such a conspiracy 
 as that above described, to restrain him from giving the order and 
 signal which will result and is intended to result in the unlawful 
 and irreparable injuries to the complainant Where such chief 
 member has already issued such an unlawful, wilful, and criminal 
 order, the injurious effect of which will be continuing, the court 
 may, by mandatory injunction, compel him to rescind the same, 
 especially when the necessary effect of the order or signal is to 
 
 Fed. 650; Scofield v. Railway Co., 43 claimed against the defendant alone, 
 Ohio St. 571, 3 N. E. 907. If a pre- the order will, if necessary, be ex- 
 liminary mandatory injunction may tended to his servants, workmen, and 
 iesue against the defendant com- agents, and it is of course to insert 
 panies to prevent irreparable injury, these words.' Fost. Fed. Pr. (lsted.), 
 it may certainly issue against their 234; 2 Daniell. Ch. Pr. (5th Am. 
 officers, agents, employees, and serv- ed.), 1673; Seton, Decrees (4th ed.), 
 ants. This is the usual form of the 173; Lord VVellesley v. Earl of Morn- 
 writ of injunction to prevent a tres- ington, 11 Beav. 180; Hodson v. 
 pass, a nuisance, waste or other in- Coppard, 29 Beav. 4; Mexican Ore 
 equitable act. Mr. Kerr says, in his Co. v. Guadalupe Min. Co., 47 Fed. 
 work on Injunctions (1st ed., p. 351, 356." 
 
 559): 'Though an injunction re- 62. Toledo, etc., R. Co. v. Pennsyl- 
 
 straining the act complained of is vania Co., 54 Fed. 746. 
 
 780
 
 Kelating to Strikes, Boycotts and Monopolies. § 510 
 
 induce and procure flagrant violations of an injunction previously 
 issued by the court. 63 And where a complaint alleged that certain 
 named labor organizations had entered into a conspiracy to force 
 the complainant to recognize such organizations and to compel the 
 operation of its road only by union or brotherhood men and that 
 to accomplish such purpose the defendants were seeking to induce 
 the employees of complainant to quit its service in violation of 
 their contract of employment, to prevent complainants interchang- 
 
 63. Toledo, etc., R. Co. v. Pennsyl- 
 vania Co., 54 Fed. 730, per Taft, J.: 
 " It may be noted, in passing, that 
 the enforcement of rule 12 presents a 
 much stronger case of illegality than 
 the ordinary boycott. As usually un- 
 derstood, a boycott is a combination 
 of many to cause a loss to one per- 
 son by coercing others, against their 
 ■will, to withdraw from him their 
 beneficial business intercourse, 
 through threats that, unless those 
 others do so, the many will cause 
 similar loss to them. Ordinarily, 
 when such a combination of persons 
 does not use violence, actual or 
 threatened, to accomplish their pur- 
 pose, it is difficult to point out with 
 clearness the illegal means or end 
 which makes the combination an un- 
 lawful conspiracy; for it is generally 
 lawful for the combiners to withdraw 
 their intercourse and its benefits 
 from any person, and to announce 
 their intention of doing so, and it is 
 equally lawful for the others, of their 
 own motion, to do that which the 
 combiners seek to compel them to do. 
 Such combinations are said to be un- 
 lawful conspiracies, though the acts 
 in themselves and considered singly 
 are innocent, when the acts are done 
 •with malice, i. e., with the intention 
 to injure another without lawful ex- 
 cuse. See the judgment of Lord Jus- 
 tice Bowen in Mogul Steamship Co. 
 
 v. McGregor, 23 Q. B. Div. 598; 
 Walker v. Cronin, 107 Mass. 555; 
 Casey v. Typographical Union, 45 
 Fed. 135; Steamship Co. v. Mc- 
 Kenna, 30 Fed. 48; State v. Glidden, 
 55 Conn. 76, 8 Atl. 890; State v. 
 Stewart, 59 Vt. 273, 9 Atl. 559; 
 Crump v. Com., 84 Va. 927, 6 S. E. 
 020; State v. Donaldson, 32 N. J. 
 Law, 151; Carew v. Rutherford, 106 
 Mass. 1; Moores v. Bricklayers' 
 Union, 23 Wkly. Law Bui. 48. But 
 in the case at bar, although malice 
 is certainly present, the illegality of 
 the combination does not consist 
 alone in that, for both the means 
 taken by the combination and its ob- 
 ject are direct violations of both the 
 civil and the criminal law, as em- 
 bodied in a positive statute. Surely 
 it cannot be doubted that such a 
 combination is within the definition 
 of an unlawful conspiracy, recog- 
 nized and adopted by the Supreme 
 Court of the United States in Petti- 
 bone v. United States, 148 U. S. 197, 
 13 Sup. Ct. Rep. 542, 38 L. Ed. 
 419, to wit: 'A combination of 
 two or more persons by concerted ac- 
 tion, to accomplish a criminal or un- 
 lawful purpose, or some purpose, not 
 in itself criminal or unlawful, by 
 criminal or unlawful means.' We 
 have thus considered with some care 
 the criminal character of rule 12 and 
 its enforcement, not only because, a3 
 
 781
 
 § 510 Relating to Strikes, Boycotts and Monopolies. 
 
 ing traffic with connecting carriers, and from carrying the United 
 States mail, it was decided that a Federal court should on such a 
 complaint grant a temporary restraining order commanding the 
 defendants to refrain from ordering or causing a strike of com- 
 plainant's employees and from in any other way or manner inter- 
 fering with the complainant in the discharge *is a common carrier 
 
 will presently be seen, it assists in 
 determining the civil liabilities which 
 grow out of them, but also because 
 we wish to make plain, if we can, 
 to the intelligent and generally law- 
 abiding men who compose the Broth- 
 erhood of Locomotive Engineers, as 
 well as to their usually conservative 
 chief officer, what we cannot believe 
 they appreciate, that, notwithstand- 
 ing their perfect organization, and 
 their charitable, temperance, and 
 other elevating and most useful pur- 
 poses, the existence and enforcement 
 of rule 12, under their organic law, 
 make the whole brotherhood a crim- 
 inal conspiracy against the laws of 
 their country. We now come to the 
 character of rule 12, and its enforce- 
 ment as a civil wrong to complain- 
 ant. Lord Justice Fry said in the 
 case of Steamship Co. v. McGregor, 
 23 Q. B. Div. 598, 624: 'I cannot 
 doubt that whenever persons enter 
 into an indictable conspiracy, and 
 that agreement is carried into execu- 
 tion by the conspirators by means of 
 an unlawful act or acts which pro- 
 duce private injury to some person, 
 that person has a cause of action 
 against the conspirators.' See, also, 
 Buffalo Lubricating Oil Co. v. 
 Standard Oil Co., 106 N. Y. 669, 12 
 N. E. 825; Steamship Co. v. Mc- 
 Kenna, 30 Fed. 48; Carew v. Ruther- 
 ford, 106 Mass. 1 ; and Moores v. 
 Bricklayers' Union, 23 Wkly. Law 
 Bui. 48. Under the principle above 
 stated, Arthur and all the members 
 
 of the brotherhood engaged in caus- 
 ing loss to the complainant are liable 
 for any actual loss inflicted in pur- 
 suance of their conspiracy. The gist 
 of any such action must be not in the 
 combination or conspiracy, but in the 
 actual loss occasioned thereby. . . . 
 We finally reach the question 
 whether Arthur can be enjoined from 
 ordering the engineers to carry out 
 rule 12. That he intends to enforce 
 the rule, if not enjoined, is not de- 
 nied. If, as we have seen, the injury 
 intended is of sucli a character that 
 the court may issue its mandatory 
 injunction against the engineers to 
 prevent them from inflicting it, Ar- 
 thur may certainly be restrained by 
 prohibitory injunction from ordering 
 them to inflict it. Arthur's order, 
 if issued, will be obeyed, because the 
 penalty of disobedience is expulsion 
 from the brotherhood. The many en- 
 gineers who serve the defendant com- 
 panies will refuse to handle the com- 
 plainant's freight. The defendant 
 companies will probably be coerced 
 thereby to refuse complainant's 
 freight, for the bill avers that they 
 have threatened to do so. The inter- 
 state business of complainant will be 
 interrupted and interfered with, at 
 every hour of the day, and at every 
 point within a radius of many miles, 
 and all because of Arthur's order. 
 The injury will be irreparable, and a 
 judgment for damages at law will be 
 wholly inadequate. The authorities 
 leave no doubt that in such a case 
 
 '82
 
 Relating to Steikes, Boycotts and Monopolies. § 511 
 
 of interstate traffic and the mails of the United States, until the 
 further order of the court. 64 
 
 § 511. Enjoining trade libels. — In England, courts of equity 
 have often enjoined libelous publications, which were injurious to 
 plaintiff's trade or profession, or which operate as a slander of 
 his title to property. Thus, an injunction was granted at the 
 instance of a manufacturer, to restrain the secretary of a trade 
 union and a printer from publishing false circulars and statements 
 that he practiced in his business a pernicious system of sweating. 6 " 
 But with the exception of such trade libels, the courts there will 
 not ordinarily grant an injunction to restrain a libel, before the 
 
 an injunction will issue against the 
 stranger who thus intermeddles, and 
 harrasses complainant's business. 
 In Sherry v. Perkins, 147 Mass. 212, 
 17 N. E. 307, the officers of a trade 
 union were enjoined by the Supreme 
 Judicial Court of Massachusetts from 
 displaying in front of plaintiff's 
 premises a banner announcing a 
 strike, and requesting workmen to 
 stay away. This was said to cause 
 an injury of such a continuing char- 
 acter as to make it a nuisance. So, 
 in Spinning Co. v. Riley, L. R. G Eq. 
 551, a case presenting facts exactly 
 like those in Sherry v. Perkins, an 
 injunction was allowed. In Casey v. 
 Typographical Union, 45 Fed. 135, 
 Judge Sage granted an injunction 
 against the members of a typograph- 
 ical union who had instituted a boy- 
 cott against a newspaper, and who 
 were attempting to drive away busi- 
 ness from it by threatening its sub- 
 scribers and advertisers to boycott 
 them in case they continued their 
 patronage. In Emack v. Kane, 34 
 Fed. 47, Judge Blodgett granted an 
 injunction against persons who, by 
 threatening infringement suits, with- 
 out any intention of bringing them, 
 
 were attempting to interfere with 
 plaintiff's enjoyment of his lawful 
 patent. And in Coeur D'Alene 
 Consol. & Min. Co. v. Miners' Union, 
 51 Fed. 260, Judge Beatty enjoined 
 the members of a union from intimi- 
 dating plaintiff's workmen, and 
 thereby preventing them from con- 
 tinuing in its employ. Arthur's pro- 
 posed invasion of complainant's 
 rights, in the means to be employed, 
 and the character of the injury in- 
 tended, is quite like the wrongs en- 
 joined in the cases just cited. It 
 would seem from the foregoing au- 
 thorities that we may enjoin Arthur 
 from directing the engineers to quit 
 work, for the purpose of coercing the 
 defendant companies to violate the 
 law and complainant's rights. 
 Though we cannot enjoin the engi- 
 neers from unlawfully quitting, it 
 does not follow that we may not en- 
 join Arthur from ordering them to 
 do so. An injunction in this form, 
 however, has not been asked, and we 
 need not decide the question." 
 
 64. Wabash R. Co. v. Hannahan, 
 121 Fed. 563. 
 
 65. Collard v. Marshall (1892), 1 
 Ch. 571. 
 
 783
 
 I la Relating r<> Strikes, Boycotts and Movopouml 
 
 case has been submitted to a jury. 6 * 5 In this country, courts of 
 equity have generally refused to enjoin trade libels, 67 on the ground 
 that the courts cannot abridge the constitutional right of free 
 speech; 68 and in accordance with the rule, that equity cannot enjoin 
 the crime of publishing a libel or slander.* 
 
 § 511a. Same subject; circulars. — Circulars containing threats 
 of loss and injury to those who should do business with complain- 
 ant, are held to be more than libels, and arc enjoined." So the 
 sending out of circulars in execution of an attempt to boycott 
 
 another and which will tend to injure or destroy hi< business may 
 be enjoined. 71 So in Michigan, a company which had In en i-uing 
 circulars, threatening suits against all persons who bought a com- 
 petitor's manufactures, and falsely stating that such manufactures 
 infringed its patents, and which by fraud and collusion obtained 
 a decree purporting to be an adjudication on the merits of the 
 dispute, was enjoined from using or publishing it. 72 And in a 
 case in New York a trade union was enjoim d by the court of first 
 instance from sending circulars to plaintiff's customers threaten- 
 ing, that in case they continued to deal with plaintiff, other trade 
 unions would be notified, and that the members of such other 
 unions would thus be induced to withhold their business from 
 persons dealing with plaintiff, as such circulars were injurious to 
 
 66. Lee v. Gibbings, 67 Law T. Labor. 156 Fed. 809; Beck v. Rail 
 (N. S.) 263. See Leslie v. Tucker way Teamsters' Protective Union, 
 <Ch. Div.), 13 Nat. Corp. Rep. 213. 118 Mich. 497, 77 X. W. 13, 42 L. R. 
 
 67. Boston Diatite Co. v. Manufac- A. 407. 
 
 hiring Co., 114 Mass. 69: Whitehead 71. Rocky Mountain Bell Teleph. 
 
 v. Kitson, 119 Mass. 484; Singer Co. v. Montana Federation of Labor, 
 
 MTg Co. v. Domestic Sewing Ma- 156 Fed. 809; Loewe v. California 
 
 chine Co., 49 Ga. 70: Mauger v. State Federation, 139 Fed. 71; Beck 
 
 Dick, 55 How. Pr. (X. Y.) 132. v. Railway Teamsters' Protective 
 
 68. Life Association, etc., v. Union, 118 Mich. 497, 77 X. W. 13, 
 Boogher, 3 Mo. App. 173. 42 L. R. A. 407. Compare Butteriek 
 
 69. Francis v. Flinn, 118 U. S. Pub. Co. v. Typographical Union, 50 
 382, 389, 30 L. Ed. 165, 167, 6 S. Ct. Misc. R. (X. Y.) 1, 100 X. Y. Supp. 
 1148. See §§ 58, 59, ante. 292. 
 
 70. Casey v. Typographical Union, 72. Grand Rapids School Furni- 
 45 Fed. 135; Emack v. Kane, 34 Fed. ture Co. v. Haney School Furniture 
 46. See Rocky Mountain Bell Co., 92 Mich. 558, 52 X. W. 1009. 
 Teleph. Co. v. Montana Federation of 
 
 784
 
 Relating to Strikes, Boycotts and Monopolies. § 511a 
 
 plaintiff's business, and amounted to an indefinite trespass upon 
 his personal property, of which the damages were not ascertain- 
 able. 73 But on appeal the injunction was set aside on the ground 
 
 73. Sinsheimer v. United Garment 
 Workers, 26 N. Y. Supp. 152, per In- 
 graham, J.: "It clearly appears 
 that sending such circulars to plain- 
 tiffs customers would cause serious 
 injury to plaintiff's business, each 
 letter sent by defendants causing ad- 
 ditional injury, that would continue 
 until the notice contained therein 
 was withdrawn. The serious question 
 that is presented at the threshold of 
 this case is whether a court of equity 
 has jurisdiction to restrain the issu- 
 ance of such circulars. The right to 
 this relief does not depend upon the 
 truth or falsity of the statement con- 
 tained in the circulars issued. It is 
 not because the circular states facts 
 which are untrue that the court is 
 asked to interfere. It is placed upon 
 the broad ground that the defendants 
 have conspired to injure the plain- 
 tiff's property by illegal acts, that 
 such injury is a continual injury, 
 and that it is impossible to estimate 
 the damages that will result there- 
 from. We have thus a continual in- 
 jury by the wrongful acts of others, 
 where it is clearly impracticable to as- 
 certain the damages flowing from each 
 wrongful act. It has been settled in 
 this State, in the case of People v. 
 Barondess, 133 N. Y. 649, 31 N. E. 
 240, that a threat to do an injury to 
 the business of the person threatened 
 is a threat to injure the property of 
 such person, and that the statements 
 of an officer of such an association 
 as the present defendants that, un- 
 less a copartnership paid him a sum 
 of money, they (the employers) could 
 not have their employees back to 
 work again, was a threat to do an 
 
 unlawful injury to the employers' 
 business. In that case the threat 
 consisted in the fact that the em- 
 ployees would not return to work 
 until the defendants' demand was 
 complied with. In this case the 
 plaintiff's customers were told that 
 if they continued to deal with the 
 plaintiff, and to sell the plaintiff's 
 goods, so long as plaintiff refused to 
 comply with defendants' demands, 
 the defendants would take steps to 
 interfere with the successful conduct 
 of the plaintiffs' customers' business. 
 Applying the principle established in 
 the Barondess Case to the facts here 
 stated, it is clear that it was an un- 
 lawful injury to plaintiffs' property 
 to send circulars to their customers, 
 which would tend to induce such cus- 
 tomers to discontinue business with 
 the plaintiff. The question, then, is 
 presented whether it is the duty of a 
 court of equity to interfere by in- 
 junction to restrain the defendants 
 from continuing thus unlawfully to 
 injure the plaintiffs' property, and 
 that question, I think, must be an- 
 swered in the affirmative. From a 
 very early period courts of equity 
 have in all cases of continued tres- 
 pass, or continuing injury to prop- 
 erty, where defendants were doing a 
 series of acts which were unlawfully 
 injuring the plaintiff's property, and 
 where, to enforce a remedy for such 
 unlawful acts at law, many suita 
 would be required, interfered by in- 
 junction to restrain the continuance 
 of such unlawful acts, and 1 know 
 of no principle that confines the duty 
 of the court to act where the unlaw- 
 ful acts cause an injury to real prop- 
 
 785 
 
 50
 
 f § 512, 513 Relating to Strikes, Boycotts axd Monopolies. 
 
 that plaintiff's own hands were not clean. 71 An injunction to 
 restrain a trade union from issuing circulars, or doing anything 
 to boycott manufacturers, may properly be denied where the latter, 
 as well as the former, are aggressively combined, in accordance 
 with the principle of equity that an applicant for injunctive relief 
 must not himself have done that of which he complains. 75 
 
 § 512. In case of trespass. — The rule, that a trespass cannot be 
 enjoined unless on realty, and where the damage is irreparable, 
 and after the right or title involved has been established at law, 
 does not apply where an injunction is sought to restrain a trade 
 union from entering on complainant's mines, and by intimidation, 
 preventing employees from working the mines, as no title to realty 
 is involved, and the acts complained of are not a direct trespass 
 to realty, but only indirectly affect its enjoyment. 76 And the rule 
 that equity will not interfere for the prevention of crime, does not 
 apply where an injunction is sought to restrain a labor union and 
 its members from entering complainant's mines and obstructing 
 the working thereof, as such acts are not necessarily criminal, 
 though unlawful, and such as may lead to criminal acts. 77 
 
 § 513. Restraining monopolies. — In a recent case in Illinois 
 
 erty. Trespass, in its broad sense, is equity have constantly interfered to 
 ' any misfeasance or act of one man restrain acts which are invasions of 
 whereby another is injuriously franchises granted by the State, and 
 treated or damnified; any unlawful other instances could be adduced in 
 act committed with violence, actual which courts of equity have fre- 
 or implied, to the person, property quently interposed to prevent 
 or rights of another.' 2 13ouv. Law threatened injury to personal prop- 
 Diet. 747. And while the cases in erty." 
 
 which this remedy has been usually 74. N. Y. Law Jour, of April 26, 
 
 invoked have been those relating to 1894. 
 
 trespass upon real property, the 75. Clothing Manufacturers v. 
 
 necessity for the interposition of a United Garment Workers, N. Y. 
 
 court of equity to prevent a wrong, Daily Reg. of April 6, 1893. And see 
 
 for which there is no other remedy, § 14, ante. 
 
 and to render unnecessary a multi- 76. Coeur d'Alene, etc., Mining 
 
 plicity of actions, exists just as much Co. v. Miners' Union, 51 Fed. 260. 
 
 -where the wrong is to such personal 77. Coeur d'Alene, etc., Mining 
 
 property as is in its nature indefi- Co. v. Miners' Union, 51 Fed. 260. 
 nite, as to real property. Courts of 
 
 786
 
 Relating to Steikes, Boycotts and Monopolies. § 513a 
 
 it is decided that where a corporation has acquired a majority of 
 the stock of another corporation for the purpose of controlling and 
 removing competition on the part of the latter company, the former 
 corporation may at the suit of the minority stockholders of the 
 other be enjoined from exercising the voting power that the ma- 
 jority of the stock confers upon it, so as to carry out such purpose. 78 
 And the injury sustained by one who is a stockholder, director and 
 officer in a corporation the control of the stock of which has been 
 purchased by another corporation for the purpose of creating a 
 monopoly in favor of the latter, suffers an injury distinct from 
 that suffered by the public through the creation of the monopoly 
 which entitles him to maintain a bill for an injunction to prevent 
 the voting of the stock by the purchasing corporation. 79 The New 
 Hampshire act of 1867, the object of which was to prevent the con- 
 solidation of rival and competing railroad companies, and so pre- 
 vent the increase of rates beyond what might be expected under 
 the influence of free competition, expressly authorized an indi- 
 vidual citizen to restrain such consolidation by injunction, without 
 showing that he had a special pecuniary interest in enforcing the 
 statute. 80 And under the similar New York statute of 1854, 
 passed to prevent the formation of steamboat monopolies, it was 
 held that stockholders of one of the two rival steamboat companies 
 could sue to enjoin the companies from running their boats for 
 joint or mutual benefit. 81 
 
 § 513au Same subject; Northern Securities Co. v. United 
 States. — Where two railway companies own, control, and operate 
 separate lines of railroads which are parallel and competing lines, 
 engaged in active competition, and the stockholders of such com- 
 panies in pursuance of a combination combine and organize a 
 
 78. Dunbar v. American Teleph. ity if not conferred by statute. 
 Co. 224 111. 9, 70 N. E. 423. Quincy Canal v. Newcomb, 7 Met. 
 
 79. Bigelow v. Calumet & Hecla 276; Fall River Co. v. Old Colony 
 M. Co., 155 Fed. 868. R. Co., 5 Allen, 224; Brainard v. 
 
 80. Currier v. Concord R. Co., 48 Conn. River R. Co., 7 Cusb. 506. 
 
 jj jj 32i. 81. Watson v. Harlem, etc., Nav. 
 
 An individual not specially Co., 52 How. Pr. (N. Y.) 348. 
 injured would not bave this author- 
 
 7S7
 
 § 514 Relating to Strikes, Boycotts and Monopolies. 
 
 .stockholding corporation to hold the shares of stock of such com- 
 panies, in exchange for which shares of the holding corporation, 
 are to be given <to the stockholders in such companies, such con- 
 stituent companies cease under such a combination to be in active 
 competition for trade and commerce and become practically, one 
 consolidated corporation, by the name of a holding corporation, the 
 principal, if not the sole, object for which is to carry out the pur- 
 pose of the original combination between the constituent companies 
 and such an arrangement constitutes a combination in restraint of 
 interstate commerce within the meaning of the provisions of the 
 anti-trust act of July 2, 1890. Under such circumstances it is 
 proper to decree that the holding company, its officers, agents, ser- 
 vants and employees be enjoined from acquiring, or attempting 
 to acquire, further stock of the constituent companies, and that the 
 holding company be enjoined from voting the aforesaid stock which 
 it holds or may acquire, and from attempting to vote it; from 
 attempting to exercise any control over the acts and doings of such 
 companies or either of them; and that the constituent companies 
 be enjoined from paying any dividends to the holding company 
 on account of the stock held by it. 82 
 
 § 514. Protecting monopolies by injunction. — In Louisiana it 
 has been decided that statutes creating monopolies were not uncon- 
 stitutional ; that the State could give the Louisiana Lottery Com- 
 pany the exclusive right to sell lottery tickets, 83 and the Crescent 
 City Slaughter House Company the exclusive right to keep a 
 slaughter house in New Orleans, S4 and a gas company the sole and 
 exclusive right to manufacture and sell illuminating gas in New 
 Orleans, which exclusive right the company could protect by en- 
 joining all others from so making and selling gas. 85 And the same 
 doctrine has been partially adopted in Kentucky. 86 If a corporation 
 has received from the State, upon considerations of an equivalent 
 
 82. Northern Securities Co. v. 85. Crescent City Gas Co. v. Ne\sr 
 United States, 193 U. S. 197, 48 L. Orleans Gas Co., 27 La. Ann. 138. 
 Ed. 679, 24 S. Ct. 436. 86. Citizens' Gas Light Co. v. 
 
 83. Louisiana Lottery Company v. Louisville Gas Co., 81 Ky. 263; New- 
 Richoux, 23 La. Ann. 743. port v. Newport Light Co., 84 Ky. 
 
 84. State v. Fagan, 22 La. Ann. 166. 
 545. 
 
 vss
 
 Relating to Strikes, Boycotts and Monopolies. § 515 
 
 public benefit, an exclusive right to operate ia railroad or bridge 
 between two places, it may enjoin another company from operating 
 another road or bridge between the same places. 87 Where a gas 
 company has an exclusive charter right to lay its pipes through city 
 streets, except as to such others as might be authorized by the Legis- 
 lature, it was held not to have a monopoly, and not entitled to an 
 injunction to prevent another company from laying its pipes. 88 
 And a preliminary injunction will be refused to protect a company 
 which claims the exclusive right to lay pipes for water supply, 
 where the legal right is disputed and has not been determined. 89 
 This subject of exclusive rights and franchises will be more fully 
 considered in a succeeding chapter. 
 
 §515. Monopolies; restraint of interstate commerce. — The 
 
 contracts, combinations in the form of trust or otherwise, and con- 
 spiracies in restraint of trade declared to be illegal in interstate and 
 international commerce by the act of July 2, 1890, entitled " An 
 act to protect trade and commerce against unlawful restraints and 
 monopolies," 90 are the contracts, combinations, and conspiracies in 
 restraint of trade that had been declared by the courts to be against 
 public policy and void under the common law before the, passage 
 of that act. 91 The test of the validity of such contracts or combina- 
 tions is not the existence of restriction upon competition imposed 
 
 87. Boston, etc., R. Co. v. Salem, mon law, the ground on which con- 
 etc, R. Co., 2 Gray (Mass.), 1, 34; tracts in restraint of trade were de- 
 Piscataqua Bridge v. New Hamp- clared unlawful was that they were 
 shire Bridge, 7 N. H. 35; Livingston against public policy. But when it 
 v. Van Ingen, 9 Johns. (N. Y.) 507; becomes necessary to consider 
 Charles Riv. Bridge v. Warren grounds of public policy in the deter- 
 Bridge, 11 Pet. (U. S.) 420, 9 L. Ed. mination of a case, it is well to bear 
 773; Fletcher v. Peck, 6 Cranch, 135. in mind the oft-quoted remarks of 
 
 88. Norwich Gas Co. v. Norwich Justice Burrough in Richardson v. 
 City Gas Co., 25 Conn. 19. Melish, 2 Bing. 252, that public pol- 
 
 89. Atlantic City Water Co. v. icy ' is a very unruly horse, and when 
 Consumers' Water Co., 44 N. J. Eq. you once get astride of it you never 
 427, 15 Atl. 581. know where it will carry you. It 
 
 90. 26 U. S. Stat. 209. may lead you from the sound law.' 
 
 91. United States v. Trans-Mis- Public policy changes with the 
 souri Freight Assoc'n, 58 Fed. 58, changing conditions of the times. It 
 per Sanborn, J. : " Under the com- is hardly to be expected that a peo- 
 
 789
 
 § 515 Relating to Strikes, Boycotts and Monopolies. 
 
 thereby, but the reasonableness of tha»t restriction under the fact* 
 and circumstances of each particular case, and if the contract or 
 combination appears to have been made for a just and honest 
 purpose, and the restraint upon trade is not specially injurious to 
 the public, and is not greater than the protection of the legitimate 
 interest of the party in whose favor the restraint is imposed 
 reasonably requires, the contract or combination is not illegal. 
 Thus a contract between railroad companies forming a freight 
 association that they will establish and maintain such rates, rule3 
 and regulations on freight traffic between competitive points as a 
 committee of their choosing shall recommend as reasonable; that 
 these rates, rules and regulations shall be public; and that any 
 member may withdraw from the association on a notice of thirty 
 
 pie who are transported by steam 
 with a rapidity hardly conceived of 
 a century ago, who are in constant 
 and instant communication with each 
 other by electricity, and who carry on 
 the most important commercial 
 transactions by the use of the tele- 
 graph while separated by thousands 
 of miles, will entertain precisely the 
 same views of what is conducive to 
 the public welfare in commercial and 
 business transactions as the people of 
 the last century, who lived when 
 commerce crept slowly along the 
 coasts, shut out of the interior by the, 
 absence of roads, and hampered by an 
 almost impassable ocean. In 14 15 a 
 writ of debt was brought on an obli- 
 gation by one John Dier, in which the 
 defendant alleged the obligation in a 
 certain indenture which he put forth, 
 and on condition that if the defend- 
 ant did not use his art of a dyers 
 craft, within the city where the 
 plaintiff, etc., for half a year, the 
 obligation to lose its force, and said 
 that he did not use his art within the 
 time limited. Hull, J., said: 'In 
 my opinion you might have demurred 
 upon him that the obligation is void, 
 
 inasmuch as the condition is against 
 the common law; and per Dieu, if the 
 plaintiff were here, he should go to 
 prison till he paid a fine to the king.' 
 Y. B., 2 Hen. V. fol. 5, pi. 26. In 
 1841, Lord Langdale, master of the 
 rolls, held that a contract made by & 
 lawyer not to practice his profession 
 in Great Britain for twenty years 
 was not against public policy, and 
 that it was valid. Whittaker v. 
 Howe, 3 Beav. 383. In 1843, the 
 court of exchequer held that an 
 agreement not to practice as a sur- 
 geon dentist in London or in any 
 other town where the plaintiffs might 
 have been practicing, was reasonable 
 and lawful so far as it related to 
 London, but against public policy and 
 void as to the other towns. Mallan 
 v. May, 11 Mees. & W. 653, 667. In 
 1869, Vice Chancellor James sus- 
 tained a contract by vendors not to 
 carry on or allow others to carry on 
 in any part of Europe the manu- 
 facture or sale of certain kinds of 
 leather so as in any way to inter- 
 fere with the exclusive enjoyment by 
 the purchasing company of the man- 
 ufacture and sale thereof, and issued 
 
 790
 
 Relating to Strikes, Boycotts and Monopolies. § 515 
 
 days, — appears to be a contract tending to make competition fair 
 and open, and to induce steadiness of rates, and is in accord with 
 the policy of the interstate commerce act, and cannot be adjudged 
 to be a contract or conspiracy in restraint of trade under the anti- 
 trust act, and the companies will not be enjoined from carrying it 
 into effect. 92 In an action brought in a State court to restrain an 
 unlawful combination as in restraint of trade, the Federal statutes 
 
 an injunction to enforce it. Cloth 
 Co. v. Lorsont, L. R. 9 Eq. 345. In 
 1889, the Supreme Court of New 
 York sustained a contract not to 
 manufacture or sell thermometers or 
 storm glasses throughout the United 
 States for ten years. Thermometer 
 Co. v. Pool, 51 Hun, 157, 163, 4 N. 
 Y. Supp. 8G1. And in 1891 the Su- 
 preme Court held that a contract of 
 a railroad corporation giving the 
 Pullman Southern Car Company the 
 exclusive right to furnish all drawing 
 room and sleeping cars required by 
 that road during a period of fifteen 
 years, was not an illegal restraint of 
 trade, and sustained it. Chicago, etc.j 
 R. Co. v. Pullman Southern Car Co., 
 139 U. S. 79, 11 S. Ct, 490, 
 
 35 L. 
 
 public 
 trated 
 
 Ed. 97. 
 
 policy of 
 by public 
 
 It is with the 
 to-day, as illus- 
 statutes and ju- 
 
 dicial decisions, that we have now to 
 deal. In considering that subject we 
 are not to be governed by our own 
 views of the interests of the people, 
 or by general considerations tending 
 to show what policy would probably 
 be wise or unwise. Such a standard 
 of determination might be uncon- 
 sciously varied by the personal views 
 of the judges who constitute the 
 court. The public policy of the na- 
 tion must be determined by its Con- 
 stitution, laws, and judicial decisions. 
 So far as they disclose it, it is our 
 province to learn and enforce it; be- 
 
 yond that it is unnecessary and un- 
 wise to pursue our inquiries. Vidal 
 v. Girard's Ex'rs, 2 How. 127, 197, 
 11 L. Ed. 205; Swann v. Swann, 21 
 Fed. 299." 
 
 92. United States v. Trans-Mis- 
 souri Freight Assoc'n, 58 Fed. 58, per 
 Sanborn, J. : " To maintain hia 
 proposition that any contract be- 
 tween common carriers that restricts 
 competition in any degree is an ille- 
 gal restraint of trade, the counsel for 
 the government has cited numerous 
 cases where such expressions as the 
 following are found in the opinionsi 
 of the courts : ' The people have a 
 right to the necessaries and con- 
 veniences of life at a price deter- 
 mined by the relation of supply and 
 demand, and the law forbids any 
 agreement or combination whereby 
 that price is removed beyond the sal- 
 utary influence of legitimate compe- 
 tition.' DeWitt Wire-Cloth Co. v. 
 New Jersey Wire-Cloth Co., 14 N. Y. 
 Supp. 277. ' It is against the gen- 
 eral policy of the law to destroy or 
 interfere with free competition, or to 
 permit such interference or destruc- 
 tion.' Stewart v. Transportation Co., 
 17 Minn. 372 (Gil. 348). 'Combina- 
 tions and conspiracies to enhance the 
 price of any article of trade and 
 commerce are injurious to the public.' 
 People v. Fisher, 14 Wend. 9. ' What- 
 ever destroys, or even restricts, com- 
 petition in trade is injurious, if not 
 
 791
 
 §515 K l LATINO TO StEIKES, BOYCOTTS AND MONOPOLIES. 
 
 forbidding' such unlawful combinations apply only to interstate or 
 foreign commerce and redress for a violation of their provisions is 
 to be sought in the Federal courts. The illegality of the combinar 
 tion, in the case above stated, must be determined by the common 
 law and the State statutes. 93 
 
 fatal, to it.' Hooker v. Vandewater, 
 4 Denio, 349, 353. A careful and 
 patient examination of the cases 
 cited, however, discloses the fact that 
 the contracts considered in those 
 cases, which are not of doubtful au- 
 thority, were of one of the classes to 
 which we have referred, or rest upon 
 some other ground than the existence 
 of restriction upon competition. They 
 were cases involving contracts of com- 
 peting producers or dealers to limit 
 the supply and enhance the price of, 
 or to monopolize, staple commodities, 
 like Morris Run Coal Co. v. Barclay 
 Coal Co., 68 Pa. St. 173; India Bag- 
 ging Assn. v. B. Kock & Co., 14 La. 
 Ann. 168; United States v. Jellico 
 Mountain Coal Co., 46 Fed. 432; 
 Lumber Co. v. Hayes. 76 Cal. 387, 18 
 Pac. 391; DeWitt Wire-Cloth Co. v. 
 New Jersey Wire-Cloth Co. (Com. 
 PI. N. Y.), 14 N. Y. Supp. 277; Salt 
 Co. v. Guthrie, 35 Ohio St. 666; and 
 People v. North River Sugar Refin- 
 ing Co., 54 Hun, 354, 7 N. Y. Supp. 
 406; or cases involving pooling con- 
 tracts, like Craft v. McConoughy, 79 
 111. 346; Hooker v. Vandewater, 4 
 Denio, 349; Stanton v. Allen, 5 Denio, 
 434; Anderson v. Jett (Ky.), 12 S. 
 W. 670; Gibbs v. Gas Co., 130 U. S. 
 396, 9 Sup. Ct. 553, 32 L. Ed. 979; 
 Morrill v. Railroad Co., 55 N. H. 531 ; 
 Denver & N. 0. R. Co. v. Atchison, 
 T. & S. F. R. Co., 15 Fed. 650; and 
 Woodruff v. Berry, 40 Ark. 252; or 
 cases involving combinations of work- 
 men which compelled non-members to 
 abide by the prices for labor for which 
 they had fixed or to abandon their 
 
 employment, like People v. Fisher, 14 
 Wend. 9, and United States v. Work- 
 ingmen's Amalgamated Council, 54 
 Fed. 994, 1000; or cases where the 
 contracts were ultra vires the cor- 
 porations, and their purpose and ef- 
 fect was to monopolize trade, like 
 Railroad Co. v. Collins, 40 Ga. 582; 
 Hazlehurst v. Railroad Co., 43 Ga. 
 13; and Western Union Tel. Co. v. 
 American Union Tel. Co., 65 Ga. 160; 
 or cases of questionable authority, 
 like Com. v. Carlisle, Brightly, N. P. 
 36, 39. See, contra, Snow v. Wheeler, 
 113 Mass. 179, 185; Bowen v. Math- 
 eson, 14 Allen, 499; Skrainka v. 
 Scharringhauscn, 8 Mo. App. 522; 
 and Carew v. Rutherford, 106 Mass 
 1, 14. It was natural that in the 
 discussion of contracts of these 
 classes the court should condemn in 
 unmeasured terms the suppression of 
 competition, but in none of these 
 cases were they required to hold, and 
 in none of them did they hold, a* 
 we understand the opinions when 
 read in relation to the facts of the 
 cases respectively, that every restric- 
 tion of competition by contracts of 
 competing dealers or carriers was il- 
 legal. These decisions rest upon 
 broader ground — on the ground that 
 the main purpose of the obnoxious 
 contracts was to suppress competi- 
 tion, and that they thus tended to 
 effect an unreasonable and unlawful 
 restraint of trade; they rest on the 
 well-settled rules, nad come within 
 the well-defined classes to which we 
 have above referred." 
 
 93. Locker v. American Tobacco 
 
 792
 
 Relating to Strikes, Boycotts and Monopolies. § 516 
 
 § 516. Same subject continued. — The argument that the busi- 
 ness of railroad companies, as quasi public corporations, is of such 
 a character that it cannot be restrained at all, without injury to 
 the public interests, and therefore that any restriction upon their 
 competition is against the public policy of the nation, has not 
 •been wholly rejected by the courts ; 94 but it is believed that it has 
 not yet been directly adjudged that the railroad transportation 
 business is such that no restraint upon competition therein can be 
 permitted, 95 unless such restraint substantially disables the corn- 
 
 Co., 121 App. Div. (N. Y.) 443, 10G 
 N. Y. Supp. 115. 
 
 94. Gibbs v. Consolidated Gas. 
 Co., 130 U. S. 396, 400, 32 L. Ed. 
 979, 9 S. Ct. 553 ; Western Union Tel. 
 Co. v. American Union Tel. Co., 65 
 Ga. 160; Chicago, etc., Coke Co. v. 
 People, etc., Coke Co., 121 111. 530; 
 West Va. Trans. Co. v. Ohio Riv. 
 Pipe Line Co., 22 W. Va. 600. 
 
 95. Oregon Steam Navigation Co. 
 v. Winsor, 20 Wall. (U. S.) 64, 22 
 L. Ed. 315; Chicago, St. L. & N. O. 
 R. Co. v. Pullman Southern Car 
 Co., 139 U. S. 79, 35 L. Ed. 
 97, 11 S. Ct. 490; Mogul Steam- 
 ship Co. v. McGregor, 21 Q. B. 
 D. 644; Manchester & L. R. Co. 
 v. Concord R. Co., 66 N. H. 100, 20 
 Atl. 383; Wiggins Ferry Co. v. Chi- 
 cago & A. R. Co., 73 Mo. 389. If we 
 turn now to the published reports 
 of the Interstate Commerce Com- 
 mission, whose opinion on such mat- 
 ters is certainly entitled to great 
 consideration, we find the view even 
 more clearly expressed that it was 
 the purpose of Congress to place im- 
 portant restraints upon competition, 
 that uncontrolled struggles for 
 patronage by railway carriers are 
 frequently detrimental to the public 
 welfare, that rate wars are especially 
 injurious to the business interests of 
 the country and contrary to the 
 
 spirit of existing laws, that the In- 
 terstate Commerce Act invites con- 
 ferences between railway managers, 
 and that concert of action in certain 
 matters by railway companies is ab- 
 solutely essential to enable it to ac- 
 complish its true purpose. In the 
 fourth annual report of the commis- 
 sion, at page 19, we find the follow- 
 ing statement: "It is thus seen at 
 every turn that the regulation of 
 rates on a consideration of the pecu- 
 niary or other situation of any single 
 road, and without a survey of the 
 whole field of operations, whereby its 
 business may be affected, and under 
 a supposition that what is done in 
 respect to that road may be limited 
 in its consequences, is entirely an- 
 tagonistic to all principles of railroad 
 transportation. The railroad man- 
 agers have perceived this, from the- 
 very first, and it is because they 
 have perceived this that they have 
 been compelled to organize them- 
 selves into railroad associations, for 
 the purpose of agreeing upon classifi- 
 cations and rates, and upon a great 
 variety of other matters pertaining 
 to the methods of conducting inter- 
 locking and over-lapping business, 
 and all business affected by competi- 
 tive forces." It would extend this 
 opinion to an unreasonable length if 
 we assumed to state the reasons 
 
 793
 
 § . r »l7 Relating to S'teikes, Boycotts and Monopolies. 
 
 panies foi» the performance of the public duties imposed upon them 
 by law. 96 
 
 §517. Commercial trusts; insurance combinations. — Under 
 the Texas statute of 1889, which defines a trust as a combination 
 to create restrictions in trade; to prevent competition in making, 
 selling or buying merchandise or commodities; to fix, at any 
 standard controlling its price to the public, any article or com- 
 modity of merchandise or commerce intended for sale, use, or con- 
 
 which probably influenced Congress 
 to impose some restrictions upon 
 competition in the matter of railway 
 transportation, and to place railway 
 carriers under the operation of a 
 law which, for its successful execu- 
 tion, as pointed out by the Interstate 
 Commerce Commission, seems to 
 some extent to invite conference and 
 concert of action. It is likewise un- 
 necessary for us to state the reasons 
 why railroad companies should be 
 accorded the privilege of entering 
 into arrangements with other com- 
 panies which may, to some extent, 
 regulate competition. Reasons to 
 that effect have been stated with 
 great ability and persuasive force in 
 some of the cases to which we have 
 already referred, notably in Man- 
 chester, etc., R. Co. v. Concord R. 
 Co., supra. But, without entering 
 into that discussion, it is sufficient 
 to say that, in our judgment, there 
 was no hard and fast rule in force 
 when the Anti-Trust Act was enacted, 
 which made every contract between 
 railroad companies void on grounds 
 of public policy, if it in any wise 
 checked competition. In our judg- 
 ment, the more reasonable doctrine 
 then prevailed, especially in view of 
 the recent passage of the Interstate 
 Commerce Act, that such contracts 
 were void, if, judged in the light of 
 
 all the circumstances and condition* 
 under which they were made, they 
 unreasonably restricted competition. 
 96. United States v. Trans-Mis- 
 souri Freight Assoc'n, 58 Fed. 58, 82, 
 per Sanborn, J. : "A monopoly of 
 trade embraces two essential ele- 
 ments: (1) The acquisition of an 
 exclusive right to, or the exclusive 
 control of, that trade; and (2) the 
 exclusion of all others from that 
 right and control. There is nothing 
 in this contract indicating any pur- 
 pose or attempt to obtain such a 
 monopoly. The great transportation 
 systems of the Great Northern Rail- 
 way Company, the Northern Pacific 
 Railroad Company, the Southern Pa 
 cific Railroad Company, and the 
 Texas Pacific Railroad Company, 
 were operated in the region subject 
 to the regulation of this association, 
 but none of these companies were 
 members of it; and, even if they had 
 been, there would still have been no 
 evidence of any attempt to monopo- 
 lize trade here, because each member 
 is left to compete with every other 
 for its share of the traffic. In re 
 Greene, 52 Fed. 104, 115. The posi- 
 tion that these railroad companieg 
 have so far disabled themselves from 
 the performance of their public du- 
 ties by the execution of this contract 
 as to give ground for the avoidance 
 
 794
 
 Relating to Strikes, Boycotts and Monopolies. § 517 
 
 sumption in the State; 97 to make or perform any agreement not 
 to sell or dispose of any article or commodity of trade, use, mer- 
 chandise, commerce or consumption below a common standard, 
 
 of the contract, and for a forfeiture 
 of their franchises, cannot be suc- 
 cessfully maintained. It is well set- 
 tled upon principle authority that, 
 where a corporation by a contract, 
 entirely or substantially disables it- 
 self from the performance of the du- 
 ties to the public imposed upon it by 
 the acceptance of its charter, the 
 contract is void, and its franchise 
 may be forfeited. The reasons for 
 this rule, and some of the limitations 
 of it, were stated by this court in 
 Union Pac. Ry. Co. v. Chicago, R. I. 
 & P. Ry. Co., 51 Fed. 30.9, 317-321, 2 
 C. C. A. 174, 230-235; and it is un- 
 necessary to repeat them here." 
 
 97. Queen Ins. Co. v. State, 8G 
 Tex. 250, 24 S. W. 397, per Gaines, 
 J.: "But there is another point of 
 view from which the statute in ques- 
 tion should be considered. Its title 
 is, ' An act to define trusts, and to 
 provide for penalties and punishment 
 of corporations, persons, firms and 
 associations of persons connected 
 with them, and to promote free com- 
 petition in the State of Texas.' The 
 term ' trusts ' is not here employed 
 in a technical legal sense. By very 
 recent commercial usage, the mean- 
 ing of the word has been extended so 
 as to comprehend combinations of 
 corporations or capitalists for the 
 purpose of controlling the price of 
 articles of prime necessity, or the 
 charges of transportation for the 
 public. The formation of gigantic 
 combinations for these purposes in 
 late years has created alarm and ex- 
 cited the liveliest interest in the 
 public mind. The amount of discus- 
 
 sion which it has invoked, consider- 
 ing the time during which it has pro- 
 gressed, is probably without a paral- 
 lel. See 2 Beach. Priv. Corp. 856, 
 and notes. In the year 1888 the dis- 
 cussion seems to have become gen- 
 eral, and in 1SS9 many Legislatures, 
 including our own, made laws for the 
 purpose of punishing and repressing 
 such conspiracies. Id., 1351, note 2. 
 Notable instances of these combina- 
 tions were those of the manufactur- 
 ing corporations engaged in refining 
 sugar, which were declared illegal by 
 the Court of Appeals of New York 
 in the case of People v. North River 
 Sugar Refining Co., 121 N. Y. 582, 
 24 N. E. 834; 'The Cotton-Seed Oil 
 Trust' (State v. American Cotton 
 Oil Trust, 40 La. Ann. 8, 3 So. 409) ; 
 'The Diamond Match Trust' (Rich- 
 ardson v. Buhl, 77 Mich. 632, 43 N. 
 W. 1102); 'The Chicago Gas Trust' 
 (People v. Chicago Gas Trust Co., 
 130 111. 2G8, 22 N. E. 798); 'The 
 Standard Oil Trust' (Rice v. Rocke- 
 feller [Sup.], 9 N. Y. Supp. 866) ; 
 'The Cattle Trust' (Gould v. Head, 
 38 Fed. 886); and 'The Alcohol 
 Trust' (State v. Nebraska Distilling 
 Co., 29 Neb. 700, 46 N. W. 155). 
 For other cases of like character, sea 
 Morris Run Coal Co. v. Barclay Coal 
 Co., 68 Pa. St. 173; Arnot v. Coal 
 Co., 68 N. Y. 558; Lumber Co. v. 
 Hayes, 76 Cal. 387, 18 Pac. 391; 
 Clancey v. Manufacturing Co., 62 
 Barb. (N. Y.) 395; Craft v. McCon- 
 oughy, 79 III. 346; Bagging Ass'n v. 
 Kock, 14 La. Ann. 168; Gibbs v. Con- 
 solidated Gas Co., 130 U. S. 396, 9 
 S. Ct. 553, 32 L. Ed. 979; Oil Co. v. 
 
 7dl
 
 § 517 Relating to Strikes, Boycotts and Monopolies. 
 
 so as to prevent free competition ; a combination of fire insurance 
 companies to fix uniform rates of insurance and agents' commis- 
 sions throughout the State, though possibly unenforceable among 
 
 Adoue, 83 Tex. 650, 19 S. W. 274; 
 and Anderson v. Jett, 89 Ky. 375, 12 
 S. W. 670. The instances of combi- 
 nations shown by the cases cited 
 serve to illustrate the causes of popu- 
 lar discontent, and the evils which 
 the Legislatures of several States 
 sought to remedy by direct statutory 
 enactments upon the subject. They 
 were combinations organized for the 
 purpose of affecting the prices of ar- 
 ticles of prime importance in com- 
 merce, or the rates of transportation 
 and intercommunication. The evils 
 resulting from these practices were 
 doubtless paramount in the minds of 
 our legislators when they passed the 
 statute under consideration, and it 
 was to repress these practices that 
 the law was enacted. By ' the 
 plain import of its language ' it 
 makes unlawful all combinations to 
 raise or depress the price of all 
 articles of commerce whatever, or 
 to increase or diminish the rates 
 of transportation of such arti- 
 cles. It seems to us, therefore, 
 that the words in the first subdi- 
 vision of section 1 of the act — 'to 
 create or carry out restrictions in 
 trade ' — were intended only as a gen- 
 eral expression of the purpose of the 
 law, and that the acts defined in the 
 subsequent members of the section 
 were intended as a specific definition 
 of what was meant in the first. Na- 
 tional Benefit Co. v. Union Hospital 
 Co. (Minn.), 47 K W. 806, was a 
 case involving the question of a par- 
 tial restraint of trade, and in their 
 opinion the court says: 'There are 
 two classes of cases, some of which 
 appellants have cited, which are often 
 
 confounded with, but are clearly dis- 
 tinguishable from, cases like the pres- 
 ent, and stand upon an entirely dii 
 ferent footing. The one is a com 
 bination between producers or deal 
 ers to limit the production or supply 
 of ,an article so as to acquire a 
 monopoly of it. and then unreason- 
 ably enhance prices. The other is 
 where a corporation of a quasi pub 
 lie character, charged with a public 
 duty, as a railway company, gas com 
 pany, or the like, enters into a con 
 tract restrictive of its business, which 
 would disable it from performing its 
 duty to the public.' We think it was. 
 to combinations of the character de- 
 scribed in these remarks that our 
 statute was intended to apply, and 
 not to combinations of persons en- 
 gaged in any employment which may 
 be restrictive of that business. But 
 it is a rule of construction that each 
 word and sentence should be pre- 
 sumed to be intended for a purpose, 
 and that each should be given effect; 
 and it may be argued that our con- 
 struction destroys the effect of the 
 words in the first clause, and that 
 under such construction they might 
 have been omitted without changing 
 the meaning of the section. But the 
 argument defeats itself. If the 
 words ' restrictions in trade ' are not 
 to be limited in their meaning, then 
 all the subsequent parts of the sec- 
 tion were unnecessary, and might 
 have been omitted without altering 
 the sense. Every act therein defined 
 is clearly a ' restriction in trade,' in 
 the most comprehensive meaning of 
 those terms. The same argument may 
 be made in reference to the word* 
 
 TOG
 
 [Relating to Stbikes, Boycotts and Monopolies. § 51? 
 
 its members as an unreasonable restraint of trade at common law, 
 is not enjoinable by the public, nor a ground for forfeiting its 
 members' franchises, since the business is not one in which the 
 
 ' article ' and ' commodity,' and it 
 may be said they should be construed 
 to have a different meaning. But, if 
 the word ' commodity * was employed 
 in its broadest meaning, it embraced 
 • article,' and the latter might have 
 been omitted. The fact is, the sec- 
 tion of the act under consideration 
 abounds in tautology; and its gen- 
 eral structure is such that rules 
 based upon grammatical niceties 
 should not prevail over broader and 
 more liberal rules of construction. 
 Our conclusion is that the case stated 
 in the petition does not come within 
 the provisions of the statute; but we 
 are not prepared to concur with the 
 Court of Civil Appeals in holding 
 that the whole act is inoperative. It 
 is true that, while trusts are defined 
 in the first section, nowhere, either in 
 that or any other section, are they ex- 
 pressly declared unlawful. The follow- 
 ing sections provide forfeitures for 
 corporations and punishment for per- 
 sons who ' violate any of the provi- 
 sions of the act,' but they do not 
 designate what shall constitute a vi- 
 olation of its provisions in any direct 
 terms. Confining ourselves to the 
 letter of the law, there is a clear 
 hiatus — a lack of connection in its 
 provisions. But the legislature evi- 
 dently intended to affix a punishment 
 to some acts and it is reasonable 
 to presume that the acts they 
 have defined were those intended to be 
 forbidden. This intention is made 
 more evident by the sixth section, 
 which declares that a violation of the 
 provisions of the act is 'a conspiracy 
 against trade,' etc.; also by the sev- 
 enth, which provides that it should 
 
 be sufficient, in an indictment under 
 the act, ' to state the purposes and 
 effect of the trust or combination and 
 that the accused was a member of 
 and acted with or in pursuance of it, 
 without giving its name or descrip- 
 tion, or how, when or where it was 
 created.' The eighth section also pro- 
 vides that it shall be sufficient to 
 prove upon the trial that * the trust 
 or combination as defined herein ex- 
 ists and that tbe defendant belonged 
 to it or acted for or in connection 
 with it, without proving all the mem- 
 bers belonging to it,' etc. There is 
 no express declaration that trusts are 
 unlawful — the acts which are de- 
 clared to constitute a trust are not 
 expressly made punishable, nor is 
 any act expressly declared to be a 
 violation of the provisions of the 
 statute; yet the language is suffi- 
 cient, we think, to manifest unmis- 
 takably the intention of the Legisla- 
 ture to punish as offenses some of 
 the acts defined in the first section, 
 and it is but reasonable to conclude 
 that the purpose was to subject them 
 all to a like punishment. The inten- 
 tion of the Legislature ia the aim of 
 statutory construction, and where, 
 though not expressed, it is clearly 
 manifested by implication from the 
 language used, we cannot say that it 
 should not have effect. That which 
 is not expressed in words may be 
 ' plainly imported ' by implication. 
 We have deemed it proper to say this 
 much upon this question, although 
 its determination, in our opinion, is 
 not necessary to a decision of this 
 case. The other question, as to the 
 validity of the statute, involves a 
 
 797
 
 § f>17 Relating to Strikes, Boycotts and Monopolies. 
 
 public has an interest as in that of a common carrier or other 
 corporation having the power of eminent domain, or of a dealer 
 in a staple which is a prime necessary of life ; nor is it a profes- 
 sional service to which the public is entitled. And a court has no 
 power to compel an owner of property to sell it against his will and 
 
 construction of the Constitution, and 
 we do not feel called upon to deter- 
 mine it. The decision of a grave 
 constitutional question, although in- 
 volved in a case, is properly preter- 
 mitted until a controversy arises in 
 "which such decision becomes neces- 
 sary to its disposition. 
 
 " Having determined that the acts 
 charged against the defendants are 
 not embraced within the provisions 
 of the statute, it becomes necessary 
 to decide whether or not they are un- 
 lawful at common law. We have 
 found no direct decision in any court 
 of last resort upon the point. The 
 decisions upon cases involving simi- 
 lar questions are not altogether har- 
 monious. We have seen that con- 
 tracts in unreasonable ' restraint of 
 trade ' are illegal in the sense that 
 they are not enforceable. Of these, 
 there is a well-defined class — those in 
 which the parties seek to bind them- 
 selves by an agreement that one of 
 them shall cease to pursue his voca- 
 tion. The terms are usually employed 
 by the courts in this sense. It is 
 clear that the combination in ques- 
 tion is not of this class. But, em- 
 ploying the terms in a looser sense, it 
 is frequently said that agreements 
 to raise or depress prices between 
 persons engaged in the same business 
 is a combination in restraint of trade. 
 That such contracts, as applied to 
 certain kinds of business, are unlaw- 
 ful, in the sense that they are not 
 valid, there is no doubt; but whether 
 the rule extends to every class of 
 
 business is a different question. It 
 extends to a business in which the 
 public have a right, as distinguished 
 from a business which may be merely 
 beneficial to the public. Such is the 
 carrying trade, and especially the 
 business of transportation by rail- 
 road and communication by tele- 
 graph. Railroad and telegraph com- 
 panies derive their right to condemn 
 property from the fact that their 
 business is established for a public 
 use. So, the business of gas com- 
 panies, who have acquired a right to 
 lay their pipes in the public streets, 
 in analogy to that of railroad com- 
 panies, is treated as public. People 
 v. Chicago Gas Trust Co., 130 111. 
 2G8, 22 N. E. 798. Thus far we may 
 clearly see our way; but when we 
 come to a business not public in its 
 character, in the sense previously in- 
 dicated, difficulties arise. We take it 
 as being well settled that all the 
 combinations among dealers in pro- 
 visions or other articles of prime ne- 
 cessity are deemed in law contrary to 
 public policy, and contracts to effect 
 or carry out such combinations are 
 held void. Bagging Assn. v. Kock, 
 14 La. Ann. 168; Lumber Co. v. 
 Hayes, 76 Cal. 387, 18 Pac. 391 ; Mor- 
 ris Run Coal Co. v. Barclay Coal Co., 
 68 Pa. St. 173. Combinations of this 
 character are commonly called ' mo- 
 nopolies,' but they are not the tech- 
 nical monopolies known to the com- 
 mon law. 4 Bl. Com., chap. 12. § 9. 
 The doctrine that they are illegal 
 probably had its origin in the laws 
 
 798
 
 Relating to Steikes, Boycotts and Monopolies. § 51 7a 
 
 therefor? cannot compel the selling agent of a corporation to sell 
 its goods to a particular individual, though it appears that such 
 corporation controls the business of other manufacturers and pro- 
 ducers. 98 But where a combination has been declared unlawful, 
 the members thereof will be enjoined employing a system of 
 espionage upon the business of another causing serious injury to 
 the latter, such system being one of the means employed to carry 
 out the combination. 99 
 
 § 517a. Who bound by injunction; violation of. — An injunc- 
 tion issued against the officers of a labor union and all their mem- 
 bers is binding on each and every member of the union though 
 service is made only on the officers. 1 And an interlocutory injunc- 
 
 •against forestalling, regrating and 
 engrossing — offenses which, at a very 
 early day in England, were made pun- 
 ishable by statutes which have since 
 been repealed. They were probably of- 
 fenses at common law, though their 
 precise nature, as denned in that sys- 
 tem, seems to be obscure. 1 Bish. 
 Crim. Law (8th ed.), § 525. . . . 
 If it should be determined that the 
 combination charged in the petition 
 is so far illegal as to make any con- 
 tract growing out of it void at com- 
 mon law, we are not prepared to say 
 that it would either subject the cor- 
 porations engaged in it to a forfeit- 
 ure of their franchises or to be en- 
 joined at the suit of the State. The 
 application of either rule would re- 
 sult in grave consequences. A corpo* 
 ration which exceeds its powers in an 
 important particular commits an im- 
 plied breach of its contract, and may 
 properly be held subject to the pen- 
 alty of a forfeiture. But the sanc- 
 tion of a rule of law which 
 holds a contract not made punishable 
 merely void, as against public policy, 
 is ordinarily simply to refuse the 
 parties any remedy for its enforce- 
 
 ment and it may be doubted 
 whether the courts would interfere to 
 enjoin their performance. The courts 
 may command parties to a legal con- 
 tract in restraint of trade to refrain 
 from violating its provisions, but can 
 they enjoin a party to a contract 
 merely void to refrain from its per- 
 formance? The rule is to leave the 
 parties as they have left themselves." 
 That an insurance contract is not an 
 article of commerce, see Paul v. Vir- 
 ginia, 8 Wall. <U. S.) 168, 19 L. Ed. 
 357; State v. Phipps, 31 Pac. 1097; 
 though it may be an aid to commerce, 
 Nathan v. Louisiana, 8 How. (U. S.) 
 73, 12 L. Ed. 992. Insurance is 
 neither " produced," " consumed," 
 " manufactured," " transported," nor 
 " sold," in the ordinary meaning of 
 any of those words, and therefore not 
 within the import of the Texas act of 
 1889. 
 
 98. Locker v. American Tobacco, 
 121 App. Div. (N. Y.) 443, 106 N. 
 Y. Supp. 115. 
 
 99. Straus v. American Pub. Co., 
 92 App. Div. (N. Y.) 350, 86 N. Y. 
 Supp. 1091. 
 
 1. Russell & Sons v. Stampers &■ 
 
 799
 
 § 517a Kelating to Strikes, Boycotts and Monopolies. 
 
 tion against strikers binds all who are parties and all who have 
 notice whether parties or not, and if a breach is committed by a 
 person who is not named in the writ or order, the motion should 
 be that he may be committed for his contempt in knowingly assist- 
 ing in the breach. 2 So one not a party to an injunction order 
 restraining interference with the business of a teaming company, 
 was deemed to have had notice of such order where it was posted 
 in public places and on complainant's wagons and the defendant 
 was an acting adviser to, and participator in, violence done by a 
 mob to complainant's wagons. 3 Again, it is decided that in a 
 pursuit by various parties of an unlawful conspiracy, as in the 
 case of strikers, each is responsible for the doings and acts of the 
 others and if in the prosecution of the unlawful intent one of the 
 parties goes a step beyond the balance of the party and does acts 
 which the balance do not themselves perform, all are responsible 
 for what he does. 4 So the fact that a labor union does not authorize 
 assaults on workmen and acts of violence will, it is held, not 
 relieve it from responsibility for such acts. 5 And where receivers 
 are directed by order of court to operate a plant, the ordering by a 
 labor union of employees of such receivers to quit work is a 
 violation of the court's order. 6 But it is decided that a person 
 cannot be committed for violating a restraining order in a suit 
 between private persons, to which he was not made a party either 
 by words of specific or general description and where, moreover, 
 he is a citizen of another State and not subject to be sued by the 
 complainant in the court in which the order was made. 7 In Michi- 
 gan it is decided that the fact that an appeal, instead of a cer- 
 tiorari, or, after commitment, habeas corpus, is taken to review 
 
 G. L. L. Union, 57 Misc. R. 96, 107, 4. United States v. Sweeney, 95 
 
 N. Y. Supp. 303. Fed. 434. 
 
 2, American Steel &> W. Co. v. 5. Southern Ry. Co. v. Machinists' 
 Wire Drawers & D. M. Unions, 90 Local Union, 111 Fed. 49. 
 
 Fed. 598. 6. United States v. Weber, 114 
 
 3. Employers' Teaming Co. v. Fed. 950. 
 
 Teamsters' Joint Council, 141 Fed. 7. In re Reese, 98 Fed. 984, 107 
 
 679. Fed. 942, 47 C. C. A. 87. 
 
 800
 
 Relating to Stkikes, Boycotts and Monopolies. § 517a 
 
 an order adjudging appellant guilty of contempt in violating an 
 injunction, will not operate to enlarge the field of inquiry in the 
 Supreme Court beyond what it would be had the review been 
 sought in the proper way. 8 
 
 8. Enterprise Foundry Co. v. 
 Iron Moulders' Union, 149 Mich. 31, 
 112 N. W. 685. 
 
 801 
 51
 
 § 518 Relating to Multiplicity of Suits. 
 
 CHAPTER XVIII. 
 
 Relating to Multiplicity of Suits. 
 
 Sacnon 518. Bills of peace. 
 
 618a. What constitutes multiplicity. 
 
 619. Bills of peace by grantees from common grantor. 
 
 620. Prerequisites to injunctive relief. 
 
 620a. Same subject — Necessity of establishing right at law. 
 620b. Must be community of interest. 
 620c. Where actions can be consolidated. 
 
 621. Actions in ejectment. 
 
 622. Same subject. 
 
 623. In cases of repeated trespass. 
 
 624. Same subject. 
 
 625. Same subject — General rule modified. 
 
 626. As to trespasses under unconstitutional statute. 
 527. As between claimants of a common fund. 
 
 628. Same subject. 
 
 629. As to victims of the same fraud. 
 
 630. In case of bonds fraudulently guaranteed. 
 531. Cases of void ordinance and tax. 
 
 632. Same subject. 
 
 533. Where several lot owners are illegally assessed. 
 
 534. Protection of franchises. 
 
 635. Patent infringement suits. 
 
 636. Where carrier collects insurance for numerous owners. 
 
 637. Enjoining pending actions in same and other courts. 
 
 538. Where different creditors are interested. 
 
 539. Different creditors' actions not enjoined. 
 
 539a. Where statute provides mode of procedure — Attachment suit*. 
 
 540. Where instruments held by independent parties. 
 
 541. In cases of interpleader. 
 
 542. In cases of nuisance and waste. 
 
 543. Where many are injured by same negligence. 
 
 544. Enjoining some of many suits. 
 
 Section 518. Bills of peace. — To prevent a multiplicity of suits 
 is a favorite ground for granting injunctive relief in courts of 
 equity. 1 The object to be attained by a resort to a court of equity 
 
 1. United States.— Consolidated 546, 16 C. C. A. 305, 37 U. S. App. 
 
 Gas Co. v. New York, 157 Fed. 849; 378, 60 L. Ed. 641; Texas & P. R. 
 
 Hoist v. Savannah Elec. Co., 131 Co. v. Kuteman, 54 Fed. 547, 4 C. C. 
 
 Fed. 931; Sanford v. Poe, 69 Fed. A. 503, 13 U. S. App. 99. 
 
 802
 
 Kelatixg to Multiplicity of Suits. 
 
 §518 
 
 in such cases is to obtain a final determination of the particular 
 right in controversy, as between all the parties concerned, by a 
 single issue, instead of leaving the right open to litigation by 
 separate suits brought by each of the parties in interest. 2 It began, 
 probably, in the bill of peace, a remedy rendered necessary by the 
 common law rule, that a judgment in an action of ejectment did 
 not conclude the plaintiff from bringing successive suits upon 
 the same cause of action. In order to prevent this vexatious 
 repetition of suits, the defendant, after a judgment at law in his 
 favor, could, by a bill of peace, enjoin the plaintiff from bringing 
 
 Alabama. — Cleveland v. Insurance 
 Co. (Ala. 1907), 44 So. 37. 
 
 Arkansas. — Greedup v. Franklin 
 County, 33 Ark. 101. 
 
 California. — Southern Pac. Co. v. 
 Robinson, 132 Cal. 408, 64 Pac. 572. 
 
 Connecticut. — Colt v. Cornwell, 2 
 Root, 109. 
 
 DelavMre. — Hughlete v. Harris, 1 
 Del. Ch. 349, 12 Am. Dec. 104. 
 
 Georgia. — Mayer v. Coley, 80 Ga. 
 207, 7 S. E. 164; Guess v. Stone 
 Mountain G. & R. Co., 67 Ga. 215. 
 
 Illinois. — North American Ins. Co. 
 t. Yates, 116 111. App. 217, aff'd 214 
 111. 272, 73 N. E. 423; Adams v. 
 Oberndorf, 121 111. App. 497; Kappes 
 v. City of Chicago, 119 111. App. 436. 
 
 Kansas. — Jordan v. Western Union 
 Tel. Co., 69 Kan. 140, 76 Pac. 396. 
 
 Maine. — Farnington Vill. Corp. v. 
 Sandy River Nat. Bank, 85 Me. 46, 
 26 Atl. 965. 
 
 Maryland. — Chesapeake Brew. Co. 
 r. Mt. Vernon Brew. Co. (Md. 1908), 
 68 Atl. 1046; Glenn v. Fowler, 8 G. 
 & J. 340. 
 
 Massachusetts. — Carr v. Silloway, 
 105 Mass. 543. 
 
 Mississippi. — Bishop v. Rosen- 
 bamn, 58 Miss. 84. 
 
 Missouri. — Aimee Realty Co. v. 
 Holler (Mo. App. 1907), 106 S. W. 
 
 588; State v. Louisiana B. G. & A. 
 G. R. Co., 116 Mo. App. 175, 92 S. 
 W. 153. 
 
 A T eio York. — Norfolk & New Bruns- 
 wick H. Co. v. Arnold, 143 N. Y. 265; 
 Pfohl v. Simpson, 74 N. Y. 137; 
 Campbell v. Seaman, 63 N. Y. 568, 
 20 Am. Rep. 567; Pennsylvania Coal 
 Co. v. Delaware & H. C. Co., 31 N. Y. 
 91 ; Fraley & Carey Co. v. Delmont, 
 110 App. Div. 468, 97 N. Y. Supp. 
 408. 
 
 Ohio. — Yeoman v. Lasley, 36 Ohio 
 St. 416. 
 
 Pennsylvania. — Lyons v. Importers 
 & Traders' Nat. Bank, 214 Pa. St. 
 428, 63 Atl. 827. 
 
 South Carolina. — Thomson v. Pal- 
 mer, 2 Rich. Eq. 32. 
 
 Tennessee. — Walker v. Fox, 85 
 Tenn. 154, 2 S. W. 98. 
 
 Vermont. — Paddock v. Palmer, 19 
 Vt. 581. 
 
 The Texas system of procedure has 
 been held by the Supreme Court of 
 that State to be essentially equitable 
 in its policy, and designed to prevent 
 more than one action growing out of 
 one subject matter of litigation. 
 Clegg v. Varnell, 18 Tex. 294; Che- 
 valier v. Rusk, Dallam (Tex.), 611; 
 Binge v. Smith, Dallam (Tex.), 616. 
 
 2. Lehigh Valley R. R. Co. v. Mc- 
 
 803
 
 £ .")18 Relating} to Multiplicity of Suits. 
 
 further suits. 3 The principle of the bill of peace has been extended 
 to cases where a great number of parties have a common cause 
 of action against the same party, growing out of the same inquiry, 
 and depending on the same questions of law and fact. 4 And it is 
 declared that commonly chancery will assume jurisdiction in the 
 first instance to prevent a multiplicity of suits where a party 
 prosecutes or defends a right against a great number of persons 
 or where a great number of persons prosecute or defend a right 
 against a single individual. The power of a court of equity has 
 been exercised where the holder of thirty time checks, each for 
 twenty dollars, was about to bring as many separate actions in a 
 court of a justice of the peace, and the justice refused to consoli- 
 date them, and the aggregate amount exceeded his jurisdiction, 
 it being held an injunction would lie to restrain the separate 
 actions, as it was the only adequate remedy to shield the plaintiff 
 from vexatious and unnecessary litigation. 6 And it has also been 
 decided that separate actions for the recovery of instalments as 
 they fall due may be enjoined where an action is pending to re- 
 cover prior instalments in which the right to collect any is in- 
 
 Farlan, 31 N. J. Eq. 730. Per De- Dowe, 70 Tex. 5, 7 S. W. 368; George 
 pue, J. v. Dean, 47 Tex. 73 ; Blessing v. Gal- 
 
 3. Galveston, H. & S. A. R. Co. v. veston City, 42 Tex. 641. 
 
 Dowe, 70 Tex. 5, 7 S. W. 368, wherein 5. Imperial Fire Ins. Co. v. Gun- 
 it was said by Gaines, J., that it had ning, 81 111. 236. Per Scott, J. 
 its beginning in the bill of peace, a 6. Galveston H. & S. A. R. Co. v. 
 remedy rendered necessary by the Dowe, 70 Tex. 5, 7 S. W. 368. See, 
 principle of the common law that a also, Third Ave. R. Co. v. New York, 
 judgment in an action of ejectment 54 N. Y. 159, where the city had be- 
 in favor of the defendant was not gun 77 actions against plaintiff, in a 
 conclusive, and did not estop the justice's court, to recover penalties 
 plaintiff from bringing successive imposed by city ordinance for run- 
 suits upon the same cause of action. ning cars without license, and was 
 In order to relieve a defendant from enjoined by the Supreme Court from 
 vexatious litigation, after a judgment prosecuting more than one, since the 
 at law in his favor, the Court of justice's court had no power to grant 
 Chancery permitted him to file his the injunction or to consolidate the 
 bill and by its decree to preclude the actions, and the prosecution of all 
 plaintiff from vexing him with any the suits would be unnecessarily op- 
 further suit. pressive. 
 
 4. Galveston H. & S. A. R. Co. v. 
 
 804
 
 Relating to Multiplicity of Suits. §§ 518a, 519 
 
 volved. 7 And likewise the procuring of successive attachments 
 may be enjoined where the procuring of them amounts to an abuse 
 of process and is vexatious. 8 
 
 § 518a. What constitutes multiplicity. — Multiplicity, as em- 
 ployed in the statement that equity will interpose to prevent a 
 multiplicity of suits, does not mean a multitude merely, and an 
 injunction will not be granted on that ground where the object is 
 to obtain a consolidation of actions or to save the expense of sepa- 
 rate actions. 9 And it is said that two suits have never been con- 
 sidered sufficient to sustain a bill in equity for such a cause. 10 So 
 in a case in Alabama it is declared that a bill of peace will lie 
 only when the right claimed affects many persons, and that if the 
 right is disputed between two persons only, not for themselves and 
 all others in interest, but for themselves alone, the bill will be 
 dismissed." 
 
 § 519. Bill of peace by grantees from common grantor. — One 
 or more owners of lots in severalty, under a common source of 
 title, may maintain a bill for themselves and all others similarly 
 situated who may become parties, to quiet title to real estate 
 against an adverse claim, alleged to be superior to the title of 
 their common grantor, but repeatedly adjudged invalid in eject- 
 
 7. Fraley & Cary Co. v. Delmont, ing them to a court of law, and thus 
 110 App. Div. (N. Y.) 468, 97 N. Y. avoid circuity of action. And so, to 
 Supp. 408. prevent a multiplicity of suits, as of 
 
 8. Lyons v. Importers & Traders' one against many, or of many against 
 Nat. Bank, 214 Pa. St. 428, 63 Atl. one, in relation to the same cause of 
 827. action, the aid of equity may be in- 
 
 9. Murphy v. City of Wilmington, voked. But multiplicity does not 
 66 Houst (Del.), 108, 22 Am. St. mean multitude, and equity will not 
 Rep. 345, wherein the court said: interfere where the object is to ob- 
 " Equity will interpose in a proper tain a consolidation of actions, or to 
 case to prevent a multiplicity of save the expense of separate actions." 
 suits, excessive litigation or circuity Per Wales, J. 
 
 of action. A court of equity, on a 10. McHenry v. Hazard, 45 Barb. 
 
 bill being filed for a discovery, will (N. Y.) 657. 
 
 sometimes proceed to take jurisdic- 11- Moses v. Mayor of Mobile, 52 
 
 tion of all the matters in controversy Ala. 198. 
 
 between the parties, instead of send- 
 
 805
 
 $520 
 
 jRelatinq to Multiplicity of Suits. 
 
 merit suits. And a right given by a Minnesota statute to a claim- 
 ant of vacant lands, to sue to quiet title, may be enforced in tho 
 Federal courts. 12 
 
 § 520. Prerequisites to injunctive relief. — While the preven- 
 tion of a multiplicity of suits is a ground of equity jurisdiction, 
 
 12. Prentice v. Duluth Storage 
 Co., 58 Fed. 437, per Sanborn, J.: 
 " That this suit was well and wisely 
 brought, admits of no discussion. 
 Owners of lots in severalty in posses- 
 sion, under a common source of title, 
 may join in a bill of peace, to quiet 
 their title, and to enjoin the prosecu- 
 tion of an adverse claim, repeatedly 
 adjudged invalid in suits in eject- 
 ment, the validity of which depends 
 entirely upon the superiority of the 
 title of their common grantor. The 
 law and the facts which determine 
 the validity of the title of one such 
 owner, also determine the validity of 
 the title of every such owner. While 
 they are owners in severalty, they 
 are united in interest in the sole 
 question at issue in such a case — the 
 validity of the title of their common 
 grantor. A suit based upon such a 
 bill is of general equitable cogni- 
 zance. It prevents a multiplicity of 
 suits, and affords the only adequate 
 remedy for such a multitude of sev- 
 eral owners as occupy the heart of a 
 great city, when their common source 
 of title is assailed. Osborne v. Rail- 
 road Co., 43 Fed. 824; Crews v Bur- 
 cham, 1 Black, 352, 358. The objec- 
 tion that some of the lots in contro- 
 versy are not in the possession ot any 
 of the complainants, but are vacant 
 and unoccupied, is without merit. 
 The statutes of Minnesota provide 
 that any person in possession ot real 
 property, and any person claiming 
 title to vacant and unoccupied real 
 
 estate, may alike bring a suit against 
 any person claiming an adverse es- 
 tate or interest therein, for the pur- 
 pose of determining such adverse 
 claim, and the rights of the parties 
 respectively. Gen. St. Minn., 1878, 
 chap. 75, § 2. These statutes also 
 provide that whenever two or more 
 persons claim lots or tracts of land 
 in severalty, under conveyances from 
 the same grantor, as the common 
 source of title, and a claim of title 
 thereto is made by any one as against 
 the title of such grantor, any one 
 claiming undei such grantor may 
 bring an action on behalf of himself 
 and all others who may come in and 
 become parties to such action, 
 against the person claiming ad- 
 versely, to have the title of such 
 grantor quieted as to the real estate 
 claimed by the complainant, and 
 those who become parties to the ac- 
 tion; and that any person who 
 claims title under the common 
 grantor, and whose title is contro- 
 verted by the same defendant, upon 
 the same ground as that of the com- 
 plainant, may come in as of course, 
 and become a party in such action, 
 by filing a statement ot these facts. 
 Id., § 14. It a bill of peace by one out of 
 possession, to quiet a title that had 
 never been adjudicated in an action 
 at law to which he was a party, 
 could not have been maintained in 
 the Federal court before the enact- 
 ment ot these statutes, then they cre- 
 ate a right to a valuable remedy, 
 
 S06
 
 Relating to Multiplicity of Suits. § 520 
 
 this ground of interference does not confer remedial rights where 
 none existed before, and the exercise of the jurisdiction assumes 
 that the complainant in such cases has some defense, either legal 
 or equitable to the numerous suits instituted or threatened against 
 him. 13 And in an early case in Delaware it is decided that the 
 principle that where an injunction is granted to restrain a wrong, 
 equity will give full relief in order to prevent a multiplicity of 
 suits, is limited to cases in which there exists a right in equity 
 to relief for the wrong already done, independently of the pendency 
 of an injunction to prevent future wrong. 14 The mere fact, also, 
 that numerous independent parties hold separate instruments 
 upon which they might bring separate suits, is not sufficient to 
 justify a court of equity in entertaining an action by the maker 
 to compel them to litigate their claims in a forum which he selects. 15 
 Nor will an injunction lie to prevent a multiplicity of suits, upon, 
 a mere allegation of complainant's belief that such suits are 
 intended, or where there is no evidence of threats to bring them, 
 <»r where the complainant was himself the author of the situation 
 which annoys and troubles him. 16 The general rule that a prose- 
 cution at law will not be enjoined when the question is the same 
 
 which the complainants might avail Crawfordville First Nat. Bank, 112 
 themselves of in that court. Rights U. S. 405, 5 S. Ct. 213, 28 L. EdL 
 created by State statutes may be en- 633; Ex parte McNiel, 13 Wall. 236, 
 forced in the Federal courts when 243, 20 L. Ed. 624." 
 those statutes prescribe methods of 13. Storrs v. Pensacola & A. R. 
 procedure which, by their terms, are Co., 29 Fla. 617, 11 So. 226. 
 to be pursued in the State courts of 14. Hughlete v. Harris, 1 Del. Ch» 
 original jurisdiction, and there is 349, 12 Am. Dec. 104. 
 nothing of a substantive character in 15. Town of Venice v. Woodruff, 
 the methods prescribed which makes 62 N. Y. 462, 20 Am. Rep. 495, hold- 
 it impossible for the Federal courts ing that he must in addition make 
 to substantially follow those meth- out a case which would sustain the 
 ods. Clark v. Smith, 13 Pet. 195, action against one of them alone. 
 203, 10 L. Ed. 123; Fitch v. Creigh- 16. Farmington Village v. Sandy 
 ton, 24 How. 159, 16 L. E. 596; Riv. Nat. Bank, 85 Me. 46, 26 Atl. 
 Stark v. Starrs, 6 Wall. 402, 410, 18 965; Wilkes v. Wilkes, 4 Edw. Ch. 
 L. Ed. 925; Holland v. Challen, 110 (N. Y.) 630. And see Lockwood 
 U. S. 15, 3 S. Ct. 495, 28 L. Ed. 52; Company v. Lawrence, 77 Me. 297;, 
 Railway Co. v. Whitton, 13 Wall. Wolfe v. Burke, 56 N. Y. 115. 
 270, 286, 20 L. Ed. 571; Reynolds v. 
 
 807
 
 § 520a lvELATING TO MULTIPLICITY OF SUITS. 
 
 at law and in equity, 17 has an exception where an injunction is 
 necessary to protect a defendant from vexatious litigation, but 
 in such cases, an injunction is granted only after the controverted 
 right has been determined in defendant's favor, in a previous 
 action. 18 Where it is sought to restrain a multiplicity of suits 
 it is said to be immaterial whether the rights of action arise from 
 general principles of law or from particular provisions of consti- 
 tutions or statutes. 19 Again, the objection of a multiplicity of 
 suits must be one to which the plaintiff will be subject, and of 
 which he may complain. 20 In this connection it is said also that 
 the application and limits of the doctrine that a court of equity 
 may intervene to prevent a multiplicity of suits is not well 
 settled. 21 
 
 § 520a. Same subject; necessity of establishing right at law. 
 — It may be stated as a general rule that a bill of peace can not 
 be maintained until the complainant has established his right at 
 law. 22 So in an early case in New York it is said that a bill of 
 peace enjoining litigation at law seems to have been allowed only 
 in one of these two cases : either where the plaintiff has already 
 satisfactorily established his right at law, or, where the persons 
 who controvert it are so numerous as to render an issue, under the 
 direction of the court indispensable to embrace all the parties con- 
 cerned, and to save multiplicity of suits. 23 But while, ordinarily, 
 a bill will not be entertained to restrain the bringing of vexatious 
 suits, until the right involved has been determined by an adjudi- 
 cation at law, yet where, from the very nature of such suits, the 
 complainant has no opportunity to establish his right, his bill for 
 an injunction may be maintained without a previous adjudication 
 
 17. Wolfe v. Burke, 56 N. Y. 118. R. Co. v. Dowe, 70 Tex. 5, 7 S. W. 
 
 18. Wallack v. Society, etc., 67 N. 368. 
 
 Y. 23, 28; West v. Mayor, 10 Paige 22. Gunn v. Harrison, 7 Ala. 585; 
 
 (N. Y.), 539. Imperial Fire Ins. Co. v. Gunning, 81 
 
 19. Pfohl v. Simpson, 74 N. Y. 111. 236; West v. Mayor of New York, 
 137. 10 Paige Ch. (N. Y.) 539. 
 
 20. Crevier v. Mayor of New York, 23. Eldridge v. Hill, 2 Johns. Ch. 
 12 Abb. Pr. N. S. (N. Y.) 340. (N. Y.) 281. 
 
 21. Galveston, Harrisburg & S. A. 
 
 808
 
 Relating to Multiplicity of Suits. 
 
 §520b 
 
 in a law court. 24 Thus, as an adjudication in a suit of trespass 
 against a tenant does not determine the landlord's title, the land- 
 lord may maintain a bill of peace to restrain the bringing of such 
 vexatious suits against the tenant whom he is bound to secure in 
 the possession of the premises. 25 And the fact that such right has 
 not been established will not prevent the obtaining of an injunction 
 where the object is to prevent a multiplicity of suits already com- 
 menced or threatened and which amount to vexatious litigation. 25 
 And although such right must be established it is not material how 
 many trials there have been. 27 So where a bill is filed in a court 
 of chancery for the purpose of preventing a multiplicity of suits 
 at law, and to have a title tried and finally settled, by one suit, 
 under the direction of the chancellor, it is decided that the bill 
 will be sustained though there have been but one or two trials at 
 law. 28 
 
 § 520b. Must be community of interest. — The courts will not 
 enjoin the prosecution of another action or actions on the ground 
 of preventing a multiplicity of suits where there is not a com- 
 munity of interest among the parties whom it is sought to re- 
 strain. 29 The rule is stated in a case in Minnesota that where a 
 common right or a community of interest in the subject matter of 
 a controversy, or a common title, from which all the defendants' 
 separate claims, and all questions at issue between the parties 
 plaintiff and defendants, have arisen, can be shown at the trial, 
 an equitable action will lie to restrain and enjoin the several 
 
 24. Milford Ch. PL, 4th Am. ed., 
 146; Bush v. Western, Prec. in Ch. 
 530; Dorset v. Girdler, Prec. in Ch. 
 531. 
 
 25. Langdon v. Templeton, 61 Vt. 
 119, 17 Atl. 839. 
 
 26. Gunn v. Harrison, 7 Ala. 585 ; 
 Galveston, Harrisburg & S. A. R. Co. 
 v. Dowe, 70 Tex. 5, 7 S. W. 368. 
 
 27. Pratt v. Kendig, 128 111. 293, 
 21 N. E. 495. 
 
 28. Trustees of Huntington v. 
 Nicoll, 3 Johns. (N. Y.) 566. 
 
 29. Thibette v. Illinois Cent. R. 
 R. Co., 70 Miss. 182, 12 So. 32, 35 
 Am. St. Rep. 642; National Union 
 Bank v. London & River P. Bank, 2 
 App. Div. (N. Y.) 208.. 37 N. Y. 
 Supp. 741; New York Security & T. 
 Co. v. Blydenstein, 70 Hun (N. Y.) 
 216, 24 N. Y. Supp. 164; Crevier v. 
 Mayor of New York, 12 Abb. Prac. 
 N. S. (N. Y.) 340; National Tube 
 Co. v. Smith (W. Va. 1905), 50 S. 
 E. 717. See Scottish Union Ins. Co, 
 v. Mohlman Co., 73 Fed. 66. 
 
 800
 
 § 520c Relating to Multiplicity of SurTs. 
 
 defendants from prosecuting separate actions at law against the 
 plaintiff. 30 It is not, however, indispensable that the defendants 
 should have a co-extensive common interest in the right in dispute, 
 or that each should have acquired his interest in the same manner, 
 or at the same time, but there must be a general right in the com- 
 plainant, in which the defendants have a common interest, which 
 may be established against all who controvert it, by a single issue. 31 
 Equity jurisdiction has also sometimes been exercised by the courts 
 to prevent a multiplicity of suits where there was merely a com- 
 munity of interests in the questions of law and of fact involved, 
 •or in kind and form of remedy demanded and obtained by or 
 against each individual. 32 In a case in Mississippi, however, it is 
 held that it is not enough that there is a community of interest 
 merely in the question of law or fact involved. 33 
 
 § 520c. Where actions can be consolidated. — Where a party 
 has several separate claims and in the tribunal which has jurisdic- 
 tion of the demands there can be a consolidation, it is the duty of 
 a party to resort to this remedy, and equity will not interfere as 
 there is an adequate remedy at law, but if the demands when 
 consolidated would be in excess of the jurisdiction of the court a 
 defendant can not resort to this remedy, as there can be no con- 
 solidation and a court of equity may then intervene to prevent the 
 bringing of separate suits on each demand for the purpose of 
 harassing the defendant by a multiplicity of suits. 34 So the appro- 
 priate relief against successive suits by the same plaintiff for 
 damages arising from an injury which is continuous, is, by appli- 
 cation for a consolidation of actions, or for a stay of proceedings. 
 
 To justify a bill of peace there McFarlan, 31 N. J. Eq. 730. Per 
 
 must be in dispute a general right in Depue, J. 
 
 the complainant, in which the de- 32. City of Albert Lea v. Nielsen, 
 
 fendants are interested, of such a 83 Minn. 246, 86 N. W. 83. 
 character that its existence may be 33. Tribette v. Illinois Cent. R. R. 
 
 finally determined in a single issue. Co., 70 Miss. 182, 12 So. 32, 35 Am. 
 
 Lehigh Valley R. R. Co. v. McFarlan, St. Rep. 642. 
 31 N. J. Eq. 730. 34. Galveston, Harrisburg &, S. A 
 
 30. City of Albert Lea v. Nielson, R. Co. v. Dowe, 70 Tex. 6, 7 S. W. 
 S3 Minn. 246, 86 N. W. 83. 368. 
 
 31. Lehigh Valley R. R. Co. v. 
 
 S10
 
 Relating to Multiplicity of Suits. § 521 
 
 and not by a bill in chancery, unless the right in controversy haa 
 once been determined adversely to plaintiff. 30 And the fact that 
 each of two partners brings a separate suit in a justice's court, for 
 killing live stock on its track, and deprives the company of the 
 right of appeal, by praying for judgment in each case below the 
 jurisdictional amount of the County Court, will not authorize 
 an injunction against the prosecution of the actions in the justice's 
 court, since the company has the right to consolidate them, and 
 then appeal to the County Court if the judgment is adverse. 36 
 
 § 521. Actions in ejectment. — Formerly the action in eject- 
 ment at common law was founded upon a fictitious demise between 
 fictitious parties, and a recovery in one action was no bar to any 
 number of other similar actions. Thus the party in possession, 
 though successful in every instance, might be harassed by a litiga- 
 tion indefinitely renewed. If, however, he could show he had been, 
 in possession, and had been disturbed in his possession by repeated 
 actions, and that his right had been established by repeated judg- 
 ments in his favor, a bill of peace would lie in equity, and a per- 
 petual injunction would be granted to quiet his possession from 
 any further litigation from the same source. 37 And where a bill 
 of peace is filed to restrain a defendant from prosecuting his action 
 of ejectment a court of equity may interfere for the purpose of 
 suppressing useless, vexatious and oppressive litigation by the 
 bringing of a multiplicity of suits. 38 But where it is sought to 
 
 35. Lehigh Valley R. R. Co. v. one suit. But the opinion in that 
 McFarlan, 31 X. J. Eq. 730. Per case recognizes and approves the doc- 
 Depue, J. trine that, if the right of consolida- 
 
 36. Gulf, etc., R. Co. v. Bacon tion exists, the injunction should be 
 (Tex.), 21 S. W. 783, per Key, J.: refused." 
 
 "It is true, as held in Galveston, etc., 37. Holland v. Challen, 110 U. S. 
 
 R. Co. v. Dowe, 70 Tex. 10, 7 S. W. 15, 19, 3 S. Ct. 495, 28 L. Ed. 52; 
 
 368, that the District Court has ju- Stark v. Starr, 6 Wall. (U. S.) 402, 
 
 risdiction to enjoin the bringing of 18 L. Ed. 925; Curtis v. Sutter, 15 
 
 a multiplicity of unjust and vexa- Cal. 259 ; Shepley v. Rangely, 2 Ware, 
 
 tious suits in a justice of the peac» 246; Devonsher v. Newenham, 2 
 
 court, when the aggregate amount, or Schoales & Lef. 199. 
 
 any other fact, will preclude the right 38. Bond v. Little, 10 Ga. 395; 
 
 to have all of them consolidated into Pratt v. Kendig, 128 111. 293, 21 N. 
 
 811
 
 § 522 Relating to Multiplicity of Suits. 
 
 restrain the prosecution of an action of ejectment the court will 
 not interfere in a doubtful case or where the complainant's right 
 has not been satisfactorily established at law. 39 To maintain a bill 
 quia timet, which differed from a bill of peace in that its object 
 was not so much to put an end to actual litigation as to prevenl 
 future litigation, by removing existing causes of controversy as to 
 title, it was generally necessary that the plaintiff should be in 
 possession, and except where the defendants were numerous, that 
 his title should have been established at law or founded on undis- 
 puted evidence or long-continued possession. 40 In most of the 
 States the action in ejectment at common law, with its fictions, has 
 been abolished by statute, and a new form of action substituted. 41 
 
 § 522. Same subject. — A married woman, in possession of her 
 separate real estate, may enjoin a purchaser of said property at 
 sheriff's sale, under a judgment against her husband, from bring- 
 ing repeated actions in ejectment against her, which he does not 
 prosecute to judgment, but takes voluntary non-suits of, with the 
 intent to worry her into paying her husband's debt. 42 And where 
 lands are levied on by execution, and claims interposed and with 
 drawn by successive claimants to whom the property is conveyed, 
 a claimant may be enjoined from withdrawing his claim, and the 
 holder of the title from transferring it, until the question as to its 
 liability to the lien can be adjudicated. 43 But a second action of 
 ejectment, though involving the same issues of fact as those decided 
 against the plaintiff in the first action, will not be enjoined as 
 
 E. 495; Woods v. Monroe, 17 Mich. to the effect of the Nebraska statute; 
 
 238. and Clark v. Smith, 13 Pet. (U.S.) 
 
 39. Bond v. Little, 10 Ga. 395; 195, 10 L. Ed. 123, as to the effect of 
 Dedman v. Chiles, 3 T. B. Mon. (Ky.) the Kentucky statute. 
 
 426. 42. Thompson's Appeal, 107 Pa. 
 
 40. Alexander v. Pendleton, 8 St. 559. And see Mayer v. Walter, 
 Cranch. (U. S.) 462. 3 L. Ed. 624; 64 Pa. St. 286; Lyon's Appeal, 61 
 Peirsoll v. Elliott 6 Pet. (U. S.) Pa. St. 15. 
 
 95, 8 L. Ed. 332; Orton v. Smith, 18 43. Fields v. Ralston, 30 Ga. 79, 
 
 How. (U. S.) 263, 15 L. Ed. 393. per Lumpkin, J.: "Otherwise we see 
 
 41. See Holland v. Challen, 110 U. no end to the litigation." 
 S. 15, 3 S. Ct. 495, 28 L. Ed. 52, as 
 
 812
 
 Kelating to Multiplicity of Suits. § 523 
 
 vexatious, where the statutes of the State in which the land lies 
 allow a defeated party in ejectment to bring a second action. 44 
 
 § 523. In cases of repeated trespass — Where the evidence indi- 
 cates that trespasses are likely to be repeated, an injunction will 
 lie in order to prevent a multiplicity of suits. This rule was 
 applied where trespasses already committed by a road overseer, 
 in removing obstructions from an alleged highway which had no 
 existence, would probably be indefinitely repeated. 4 " And the rule 
 was applied where the defendant had piled heavy boulders on 
 plaintiff's lots, and plaintiff's only remedy at law was repeated 
 actions for damages. 46 And the owner of land is entitled to an 
 injunction against trespass by a field tenant in pasturing the land, 
 in order to avoid a multiplicity of suits. 47 For the purpose of 
 preventing a multiplicity of suits, a court of equity has jurisdic- 
 tion to restrain a township from diverting surface water from a 
 highway, and discharging it on complainant's land. 48 But where 
 the defendant shows a clear right to have his title to the land in 
 dispute passed upon by a jury, he will in the meantime only be 
 temporarily enjoined. 49 The rule as to repeated trespass upon real 
 property has been applied in ISTew York to a series of acts injurious 
 to personal property. Thus, a trade union has been enjoined 
 
 44. Dishong v. Finkbiner, 46 Fed. plaint nor found by the cour*; nor 
 12. unless there i3 an actionable Injury 
 
 45. Smithers v. Fitch 82 Cal. 153, entitling to substantial relief. Purdy 
 22 Pac. 935. See, also, Palmer v. Is- v. Manhattan El. R. Co., 13 N. Y. 
 rael, 13 Mont. 209, 33 Pac. 134. Supp. 295. And see Ellis v. Wren, 
 
 46. Wheelock v. Noonan, 108 N. 84 Ky. 254, 1 S. W. 440. 
 
 Y. 179, 15 N. E. 67. And see Avery 47. Tantlinger v. Sullivan, 80 
 
 v. New York Central & H. R. R. Co., Iowa, 218j 45 N. W. 765; Ladd v. 
 
 106 N. Y. 142, 12 N. E. 619; Mur- Osborne, 79 Iowa, 93, 44 N. W. 235. 
 
 dock v. Prospect Park, etc., R. Co., 48. Slack v. Lawrence Twp. (N. 
 
 73 N. Y. 579. J. Eq.), 19 Atl. 663. And see West 
 
 An action to restrain the fnr- Orange v. Field, 37 N. J. Eq. 600. 
 
 ther use of an elevated railway 49. Ashurst v. McKenzie, 92 Ala. 
 
 in a street cannot be maintained on 484, 9 So. 262; Sullivan v. Rabb, 86 
 
 the ground of preventing a multi- Ala. 433, 5 So. 746; Ulbricht v. Eu- 
 
 plicity of suits for repetitions of the faula Water Co., 86 Ala. 587, 6 So. 
 
 trespass, where such ground of ju- 78; Cox v. Douglas, 20 W. Va. 175. 
 risdiction is not alleged in the com- 
 
 813
 
 § 524 Relating to Multiplicity of Suits. 
 
 from sending circulars to plaintiff's customers, for the purpose of 
 preventing them from dealing with him. 60 
 
 § 524. Same subject. — It is obvious that where the violation 
 of plaintiff's right is likely to be often repeated, or is of such a 
 nature as to be continuous, that a separate remedy at law for each 
 violation, or repeated actions at law, would involve the parties in 
 interminable litigation, and might prove as disastrous to the plain- 
 tiff as defendant. The legal remedy in such cases being inade- 
 quate, injunctive relief will be afforded. Thus, where a company 
 engaged in buying and crushing cotton seed, was in the habit of 
 sending out sacks to farmers, to be filled and reshipped to it, and 
 another company in the same business persisted in collecting and 
 using the sacks, in spite of repeated actions of replevin, an injunc- 
 tion was granted to prevent a further repetition of the grievance." 
 In cases of repeated trespass upon property, the fact that the 
 owner can have redress at law only by repeated actions for dam- 
 ages, presents strong grounds in favor of granting him injunctive 
 relief against the trespasser. 52 Thus, where defendant had re- 
 peatedly torn down plaintiff's fence, in order to pass over his lands, 
 and threatened to continue to do so, it was held that to require 
 him to bring an action for damages every time the injury was 
 repeated, would not be an adequate remedy, and an injunction 
 
 50. Sinsheimer v. United Garment the wrong-doer in regard to the same 
 Workers, 26 N. Y. Supp. 152, per In- subject matter. The ends of justice 
 graham, J.: "The necessity for the require, in such case, that the whole 
 interposition of equity to prevent a wrong shall be arrested and concluded 
 wrong for which there is no other in a single proceeding. And such re- 
 remedy, and to render unnecessary a lief equity affords, and thereby ful- 
 multiplicity of actions, exists just as fills its appropriate mission of sup- 
 much where the wrong is to such per- plying the deficiencies of legal rem- 
 sonal property as is in its nature in- edies." 
 
 definite, as to real property." 52. Ellis v. Wren, 84 Ky. 254, 1 
 
 51. Mills v. New Orleans Seed Co., S. W. 440; Musselman v. Marquis, 1 
 65 Miss. 391, per Arnold, J.: "The Bush (Ky.), 463. See, also, Port of 
 separate remedy at law for each of Mobile v. Louisville, etc., R. Co., 84 
 such trespasses would not be ade- Ala. 115, 4 So. 106; Lyon v. Hunt, 11 
 quate to relieve the injured party Ala. 295; Smith v. Gardner, 12 Or. 
 from the expense, vexation and op- 221, 224. 6 Pac. 771; Haines v. Hall, 
 presaion of numerous suits against 17 Or. 165, 174.. 20 Pac. 831. 
 
 814
 
 Relating to Multiplicity of Suits. §§ 525, 526 
 
 •was granted to restrain defendant, in order to prevent such re- 
 Treated actions. 53 
 
 § 525. Same subject; general rule modified. — The doctrine has 
 been declared that while an injunction may issue to prevent a 
 multiplicity of suits, where there are several persons controverting 
 the same right, and each standing on his own pretensions, yet that 
 equity will not restrain a person merely because he is guilty of a 
 repetition of the same trespass, provided the compensation in dam- 
 ages is clearly adequate. 34 This modification of the general rule 
 would not seem to be justified, either by reason or necessity. 55 
 
 § 52G. As to trespasses under unconstitutional statute. — 
 Complainant owned a tract of land which was valuable solely for 
 grazing purposes, and from which he derived an income by letting 
 it to pasture. At the time he acquired it the law of South Carolina 
 required all owners of cattle and stock to keep them fenced in, 
 and gave the owners of lands upon which they might trespass the 
 right to distrain and impound them. Thereafter the Legislature 
 passed an act exempting this land, with other tracts, from the 
 
 53. Shaffer v. Stull, 32 Neb. 94, merely the agent of the defendant 
 48 N. W. 8S2. On the same point see corporation." 
 
 Owens v. Crossett, 105 111. 354; Bol- 55. In Springport v. Teutonia Sav, 
 
 ton v. McShane, 267 Iowa, 207, Bank, 75 N. Y. 397, 402, Rapallo, J., 
 
 25 N. W. 135; City Council Bluffs v. said: "It was not intended to be 
 
 Stewart, 51 Iowa, 385, 1 N. VV. 628. denied that in the case of instru- 
 
 54. Hatcher v. Hampton, 7 Ga. 49. ments creating a prima facie liabil- 
 The decision in this case was fol- ity and requiring an affirmative de- 
 lowed in Roebling v. First Nat. Bank, fense, to be supported by extrinsic 
 30 Fed. 744, where Jackson, J., said: proof of facts, the circumstance that 
 " It is true in this case there are they were held by numerous parties, 
 two defendants, but it is equally true who might bring numerous suits 
 that tl«e defendant bank claims under upon them in different places, might, 
 the defendant Donaldson, and in this under some circumstances, be re- 
 respect the pretensions of the defend- garded as a ground for equitable in- 
 ants are the same, and each one is terposition, even though, if there 
 not standing upon his own or differ- were but a single claimant, equitable 
 ent positions, but are resting their de- relief would be denied, and the party 
 fense on a common ground; the de- left to his legal defense, nor that 
 fendant Donaldson is not a principal where a party was subjected to or 
 in interest in the controversy, but threatened with numerous vexatious 
 
 815
 
 §527 
 
 Kelating to Multiplicity of Suits. 
 
 provisions of the law, the effect of which was to require complain- 
 ant either to fence his whole tract against cattle, or to submit to 
 have it trespassed upon, without redress, by any cattle whose 
 owners chose to let them run at large. It was held that this act 
 was not within the police power of the State, and violated the 
 Federal constitution, inasmuch as it deprived complainant of his 
 property without due process of law. It was also held that com- 
 plainant was entitled to an injunction against certain owners of 
 trespassing cattle who had applied to the Legislature for the act 
 in question, and who had paid complainant for pasturage before 
 its passage, but had refused so to pay after its passage ; and that 
 equity had jurisdiction to grant the injunction, on the ground that 
 to leave complainant to his remedies at law would involve him in 
 a multiplicity of suits. 56 
 
 § 527. As between claimants of a common fund. — In an action 
 in equity to settle in one suit numerous claims to a fund held by 
 
 actions, equity might not, under 
 proper circumstances, restrain them." 
 56. Smith v. Bivens, 56 Fed. 352, 
 per Simonton, J.: "The Federal 
 Constitution inhibits the State from 
 depriving any person of life, liberty 
 or property, without due process of 
 law. 14th Amend., § 1. ' Due pro- 
 cess of law ' has never received any 
 exact definition. Freeland v. Wil- 
 liams, 131 U. S. 407, 9 S. Ct. 763, 38 
 L. Ed. 193. Mr. Justice Fuller, in 
 Caldwell v. Texas, 137 U. S. 697, 11 
 S. Ct. 224, 34 L. Ed. 816, says: 
 ' Law, in its regular course of admin- 
 istration through courts of justice, is 
 due process, and, when secured by 
 the law of the State, the constitu- 
 tional requisition is satisfied.' In 
 the case at bar the complainant, 
 owner of a tract of land, and as such 
 owner entitled to its exclusive use 
 and enjoyment, is by an act of the 
 Legislature, and without more, de- 
 prived of this exclusive use and en- 
 
 joyment. By the stroke of a pen, it 
 is gone. This seems a clear illustra- 
 tion of what is forbidden in the Con- 
 stitution. The only remaining in- 
 quiry is, is this act of the general as- 
 sembly of the State of South Caro- 
 lina the exercise of police power? If 
 so, it is above the Constitution. The 
 police power is among the reserved 
 powers of the States. New York v. 
 Miln, 11 Pet. 102, 9 L. Ed. 648. It 
 cannot be accurately defined. It is 
 described as the power to prescribe 
 regulations to promote the health, 
 peace, morals, education and good or- 
 der of the people, and to legislate so 
 as to increase the industries of the 
 State, develop its resources, and add 
 to its wealth and prosperity. Bar- 
 bier v. Connolly, 113 U. S. 31, 5 S. 
 Ct. 357, 28 L. Ed. 923. Where the 
 purpose of the law is the adoption of 
 measures appropriate or needful for 
 the protection of public morals, the 
 public health, and the public safety, 
 
 816
 
 Relating to Multiplicity of Suits 
 
 §527 
 
 plaintiffs, and thus avoid harassing litigation, an injunction may 
 issue restraining the prosecution of another action in a different 
 court by one of the claimants in respect to his interests alone, and 
 to which the other claimants are not made parties. 57 So in New 
 York it is decided that a court of equity has jurisdiction to inter- 
 
 there is no question that it is within 
 the police power. Mugler v. Kansas, 
 123 U. S. 631, 8 S. Ct. 273, 31 L. 
 Ed. 205. But when the enactment 
 goes beyond that, while we are bound 
 to indulge every possible presump- 
 tion in favor of the validity of a 
 statute (Sinking Fund Cases, 99 U. 
 S. 700, 25 L. Ed. 496), it does not at 
 all follow that every statute, even if 
 it be enacted ostensibly for these 
 ■ends, is to be accepted as a legiti- 
 mate exertion of police power. We 
 are relieved from doubt as to this 
 question by the Supreme Court of 
 South Carolina. In Fort v. Goodwin, 
 36 S. C. 452, 15 S. E. 723, the court 
 discusses the constitutionality of an 
 act of assembly exempting a large 
 body of swamp in Lexington county 
 from the operation of the stock law. 
 The court, considering the question, 
 hold that the effect of the act is the 
 taking of private property, in the 
 sense of the Constitution. The court 
 says : ' It may possibly be inferred 
 that it is for the benefit of those 
 whose business is to raise stock. It 
 manifestly increases the burdens of 
 the freeholders within the inclosure, 
 who make objection that their lands 
 are to be turned into a public pas- 
 ture, . . . and thus required to 
 fence any portion of their lands 
 which they may wish to cultivate. 
 As we think, the Legislature cannot 
 accomplish such purpose.' It is a del- 
 icate thing to declare a State statute 
 unconstitutional. But the Supreme 
 Court of South Carolina, in the case 
 
 above quoted, and in Utsey v. Hiott, 
 30 S. C. 367, 9 S. E. 338, have de- 
 clared similar acts invalid, upon the 
 principles above stated, and in a re- 
 cent case, still in manuscript, Sand- 
 ers v. Venning, 38 S. C. 502, 17 S. E. 
 134, confirm these cases. This case 
 presents a Federal question, and is 
 within the jurisdiction of this court. 
 With regard to the general equity 
 jurisdiction, there can be less ques- 
 tion. By the operation of the act 
 the complainant is exposed con- 
 stantly to trespasses upon hi3 land, 
 and to the use and destruction of hia 
 property. Were he limited to relief 
 at law he would be involved con- 
 stantly in a multiplicity of suits, 
 and harrassed by endless and unsat- 
 isfactory litigation. As long as the 
 act remains of force this cannot be 
 prevented. The owners of cattle are 
 not required to fence them in, and 
 in despite of the efforts of complain- 
 ant, and we may say even against the 
 wishes of the cattle-owners, these 
 trespasses will go on. No damages 
 will be awarded. Let the injunction 
 issue in accordance with the prayer 
 of the bill." 
 
 57. Lawrence v. Manning, 9 N. Y. 
 Supp. 223, per Brady, J.: "It ia 
 true that the action of Mrs. Sale ia 
 the only one brought against the 
 plaintiffs, but as the parties inter- 
 ested are numerous, it may be as- 
 sumed, for the purpose of equitable 
 interference, that the plaintiff's ex- 
 posure to numerous and harassing 
 litigations, apparently unnecessary > 
 
 817 
 
 52
 
 § 52' 
 
 Relating to Multiplicity of Suits. 
 
 vene to prevent a multiplicity of suits involving conflicting claims 
 to the same property which a court of law can not, but a court of 
 equity can, solve without working injustice. 58 So where a bill to 
 set aside as fraudulent an attachment and sale by the confidential 
 clerk of an insolvent merchant of the entire property of such mer- 
 chant, and to subject such property to the payment of complain- 
 ant's demand, alleged that after such attachment, complainants, 
 to collect their demand, attached the same property seized under 
 the alleged fraudulent attachment, and obtained judgment; that, 
 after their attachment, other creditors levied on the same property, 
 and filed separate bills to set aside the alleged fraudulent attach- 
 ment, and enjoined the sheriff from paying over the money realized 
 from the sale under the alleged fraudulent attachment, and tho 
 bill made the merchant, clerk, sheriff, and each of the attaching 
 creditors parties, it was held that the bill was not multifarious, 
 and that there was not a misjoinder of defendants. 59 
 
 calls for the exercise of its power. 
 This ia an action in which full and 
 complete justice can be administered 
 to the parties interested in the action 
 of Mr8. Sale, and hence its mainte- 
 nance is not obnoxious to the doc- 
 trine of Hayward v. Hood, 39 Him 
 (N. Y.), 590. The propriety of such 
 an action as this is distinctly stated 
 in Erie R. Co. v. Ramsey, 45 N. Y. 
 647, in which it is said that an action 
 may be maintained to restrain pro- 
 ceedings in another suit, where the 
 relief demanded in the second suit 
 cannot be secured in the one pre- 
 viously commenced. In Babcock v. 
 Arkenburgh, 22 N. Y. W. Dig. 478, 
 it was held that ' an action in 
 equity may be maintained for the 
 purpose of settling in one suit what 
 might otherwise require the prosecu- 
 tion and determination of a number 
 of different actions, and an injunc- 
 tion may issue in such suit to pre- 
 vent the continuance or commence- 
 
 ment of such other actions, pending 
 its determination." 
 
 58. National Park Bank v. God 
 dard, 131 N. Y. 494, 30 N. E. 566. 
 
 See, also, People v. Simpson, 7-i 
 N. Y. 137, holding that in case* 
 where many persons have claims and 
 are prosecuting, or are about to pros 
 ecute them at law, against one de 
 fendant or class of defendants, or a 
 fund liable in equal degree to all 
 those persons and to others, a court 
 of equity, to forestall a multiplicity 
 of actions has jurisdiction of an ac- 
 tion for a general accounting and 
 adjustment of all the rights, and to 
 restrain separate and individual ac- 
 tions at law in the same or other 
 courts, thus bringing all the litiga- 
 tion into one suit. 
 
 59. Bamberger v. Voorhees, 99 
 Ala. 292, 13 So. 305, per Haralson, 
 J.: "Though their claims against 
 Pinkus are distinct, there is a con- 
 tention between them as to priority 
 
 818
 
 Relating to Multiplicity of Suits. 
 
 §528 
 
 § 528. Same subject. — In Georgia, any superior court on which 
 is devolved the duty of administering a particular fund over 
 which it has acquired jurisdiction, can bring before it all the claim- 
 ants of that fund, in whatever county of the State they may reside, 
 and jurisdiction over one defendant against whom substantial 
 relief is prayed, carries with it jurisdiction over all other parties 
 necessary or proper to the administration of such relief; 60 and a 
 claimant of any part of that fund may be restrained from bringing 
 a subsequent action therefor, in the same or another court, and 
 may be impleaded in the original action in the superior court. 61 
 
 out of a common fund, and it is 
 necessary for complainants' relief, 
 and proper for the relief of each, that 
 they all be brought before the court, 
 that their competing priorities may 
 be rightly and finally adjusted. 
 Stone v. Insurance Co., 52 Ala. 589; 
 Adams v. Jones, 68 Ala. 117; Martin 
 v. Carter, 90 Ala. 97, 7 So. 510. 
 Prom the developments in this case 
 we venture the suggestion to the 
 lower court of the propriety of mak- 
 ing an order consolidating with this 
 case the other causes pending in 
 equity in said court touching the 
 same matters here involved for de- 
 termination, and trying them all to- 
 gether as one case. The settlement 
 of the matter in dispute will thereby 
 be speedier and more satisfactorily 
 adjusted, and at less expense. In 
 Cartwright's Case, 90 Ala. 405, 8 So. 
 264, we said: ' It has been adjudged, 
 and needs no argument to justify the 
 conclusion, that the summary juris- 
 diction exercised by a court of law 
 in determining the priorities of the 
 legal liens of rival attaching credi- 
 tors, whether on the motion of the 
 sheriff or of the parties themselves 
 asking for a distribution of the fund 
 arising from the sale of the attached 
 property, in no manner interferes 
 
 with the jurisdiction of equity to ad- 
 just the rights of such rival claim- 
 ants in a proper case for cognizance 
 by a court of equity." Gusdorf v. 
 Ikelheimer, 75 Ala. 148.'" 
 
 60. James v. Sams, 90 Ga. 404, 17 
 S. E. 962. 
 
 61. James v. Sams, 90 Ga. 404, 17 
 S. E. 962. Plaintiff, having loaned 
 money on certain bales of goods, was 
 notified by defendants that some of 
 the bales had been pledged to them, 
 each defendant claiming different 
 bales. Plaintiff and some of defend- 
 ants agreed that the bales claimed 
 by each of them should be sold by 
 plaintiff, and the proceeds of specific 
 bales should be held subject to the 
 same claims as the bales themselves. 
 One party to this agreement sued for 
 the net proceeds of the bales 
 claimed by it. Plaintiff sought to re- 
 strain the prosecution of such suit, 
 and of any suit by any of defendants, 
 and praying that all the claims be 
 adjusted in one suit. Held that, as 
 each defendant claimed only the pro- 
 ceeds of specific bales, or the bales 
 themselves, and no one claimed the 
 whole fund, plaintiff was not enti- 
 tled to an injunction. New York Se- 
 curity & Trust Co. v. Blydenstein 
 (Sup.), 24 N. Y. Supp. 164. In New 
 
 819
 
 § 529 
 
 Relating to Multiplicity oj Suits. 
 
 § 529. As to victims of the same fraud. — A court of equity 
 intervenes to prevent a multiplicity of actions, where they rest 
 upon some common right invaded or some common injury in- 
 flicted, as, for example, where they are brought by the several 
 victims of the same general fraudulent scheme, though they may 
 have been affected by it in different degrees, and without any 
 joint contract or joint act between them. 6 " And where a county 
 treasurer had created a false debt against his county by an over- 
 issue of notes, and thirty-one of the holders had brought separate 
 suits on their notes, and the county, though willing to pay what 
 it justly owed, was unable to ascertain who were the rightful 
 owners of the debt, it was held that the county was entitled to 
 enjoin the separate suits, and to have the rights of the holders of 
 the notes and the county's liability determined in one action, for 
 
 York Security & Trust Co. v. Blyden- 
 gtcin, 70 Hun, 216, 24 N. Y. Supp. 
 164, the trust company sought to re- 
 strain an action by Blydenstein, and 
 other actions which might be 
 brought by the several claimants of 
 the different bales of burlaps held by 
 the company, on the ground that each 
 claimant claimed an interest in the 
 fund arising from the sale of the 200 
 bales, and that consequently the 
 rights therein could not be deter- 
 mined in separate actions; but as the 
 facts showed that the action sought 
 to be restrained was upon an inde- 
 pendent cause of action as to the dis- 
 tinct, specific bales claimed by Bly- 
 denstein, in which the other claim- 
 ants had no interest, and that there 
 was no confusion of goods or inter- 
 ests, unless caused by the trust com- 
 pany itself, the agreement between 
 it and the claimants not having been 
 joint, it was held that the injunction, 
 so far as it restrained the Blyden- 
 stein action, should be dissolved. 
 
 62, National Park Bank v. God- 
 dard, 131 N. Y. 494, 30 N. E. 566. 
 
 In this case the plaintiff bank waa 
 induced by false representations of a 
 certain firm to make it a large loan, 
 and many others were induced, by 
 similar representations, to sell the 
 firm goods on credit to make up into 
 clothing. On discovery of the fraud 
 the bank attached the whole stock of 
 the firm, and the vendors brought re- 
 plevin suits against the sheriff, to re- 
 cover the specific property respec- 
 tively sold by them to the firm. The 
 bank then brought an action to en- 
 join the prosecution of the fifty or 
 more replevin suits against the 
 sheriff, and for the appointment of a 
 receiver of the property of the firm 
 in litigation, and for an adjudication 
 of the various claims of the bank and 
 the other creditors, and it was held 
 that a court of equity had jurisdic- 
 tion to intervene to prevent a multi- 
 plicity of suits, involving conflicting 
 claims to the same property, which a 
 court of law could not, but which 
 equity could solve without working 
 injustice, and that the bank, though 
 as attaching creditor it had no legal 
 
 820
 
 Relating to Multiplicity of Suits. 
 
 §530 
 
 the purpose of preventing multiplicity of suits, and to protect the 
 county against the hazard of a double recovery. 63 
 
 § 530. In case of bonds fraudulently guaranteed A railroad 
 
 company, whose guaranty appears indorsed upon several hundred 
 bonds issued by another company, having been placed there il- 
 legally and fraudulently, may maintain a bill in equity against 
 the holders thereof to cancel the guaranty, on the ground of pre- 
 venting a multiplicity of suits, although it might have a good 
 defense at law to each of the bonds. And in such case the company 
 may enjoin the holders from transferring, encumbering or remov- 
 ing from within the jurisdiction of the court of any of the bonds 
 thus fraudulently guaranteed. 64 
 
 title to the property attached, yet 
 was the real party interested, and so 
 was entitled to bring the action and 
 turn the clothing into money, to be 
 justly distributed among the claim- 
 ants. 
 
 6,3. Saratoga County Supervisors 
 v. Deyoe, 77 N. Y. 219, 225, per An- 
 drews, J. : " The county is ready and 
 willing to pay what it owes, as soon 
 as its creditors are ascertained. It 
 cannot safely pay without litigation. 
 In stands in the position of holding 
 a fund, equal to its admitted debt, 
 which is claimed by many persons, 
 and it asks by this action that the 
 court will interfere to prevent mul- 
 tiplicity of suits, and to determine 
 the rights of all the claimants in a 
 single action, the general question 
 in each will be the same as to each 
 defendant, viz.: whether the particu- 
 lar claim represents any part of the 
 admitted debt. The prevention of a 
 multiplicity of suits, as said by 
 Chancellor Kent, in Brinkerhoff v. 
 Brown, 6 Johns. Ch. 151, is a very 
 favorite object with a court of 
 equity, and the number of parties 
 and the multiplicity of actual or 
 
 threatened suits will, as stated by 
 Comstock, J., in the case of New 
 York, etc., R. Co. v. Schuyler, 17 N. 
 Y. 608, sometimes justify a resort to 
 a court of equity, when the subject 
 is not at all of an equitable charac- 
 ter, and there is no other element of 
 equity jurisdiction. It is upon this 
 ground that bills of peace are enter- 
 tained, viz.: to quiet unnecessary 
 litigation. Story, Eq. Jur., § 854; 
 Milford's Eq. PI. 145. The mainte- 
 nance of this action will subserve 
 this purpose. It will also protect 
 the plaintiff against the hazard of a 
 double recovery, which is the ground 
 upon which bills of interpleader are 
 sustained. Badeau v. Rogers, 2 
 Paige, 209; Bedell v. Hoffman, 2 
 Paige, 199. ... It may not be a 
 case of interpleader strictly, or 
 which meets all the definitions of a 
 bill of peace, but it combines, to a 
 greater or less extent, elements of 
 jurisdiction in each of these cases, 
 and the action may be sustained, we 
 think, without a violation of prin- 
 ciple." 
 
 64. Louisville, etc., R. Co. v. 
 Ohio, etc., Contract Co., 57 Fed. 42, 
 
 821
 
 §531 
 
 Relating to Multiplicity of Suits. 
 
 § 531. Cases of void ordinance and tax. — A court of equity 
 may, in order to prevent a multiplicity of actions, enjoin the 
 
 per Lurton, J.: " There has been 
 much conflict of authority as to the 
 circumstances which will justify a 
 court of equity in taking jurisdic- 
 tion to prevent a multiplicity of 
 suits; but an examination of numer- 
 ous authorities brings me to the con- 
 clusion that where a complainant 
 may be subjected to a multitude of 
 separate suits by separate claimants, 
 and the judgment in one case would 
 not be conclusive in others, a case 
 arises for equitable jurisdiction, if 
 the defendants have a community of 
 interest in the questions at issue, and 
 in the kind of relief sought, by rea- 
 son of the common origin of their 
 several claims. This conclusion has 
 the support of Mr. Pomeroy, who, 
 after an elaborate consideration of 
 this question, says: 'Under the 
 greatest diversity of circumstances, 
 and the greatest variety of claims 
 arising from unauthorized public 
 acts, private tortious acts, invasion 
 of property rights, violation of con- 
 tract obligations, and notwithstand- 
 ing the denials of some American 
 courts, the weight of authority is 
 simply overwhelming that the juris- 
 diction may and should be exercised 
 either on behalf of a numerous body 
 of separate claimants against a sin- 
 gle party, or on behalf of a single 
 party against such a numerous body, 
 although there is no common title, 
 nor community of right, nor of inter- 
 est in the subject matter, but be- 
 cause there is merely a community 
 of interest among them in the ques- 
 tions of law and fact involved in the 
 general controversy, or in the kind 
 and form of relief demanded and ob- 
 tained by or against each individual 
 
 member of the numerous body. In a 
 majority of the decided cases this 
 community of interest in the ques- 
 tions at issue, in the nature and kind 
 of relief sought, has originated from 
 the fact that the separate claims of 
 all the individuals composing the 
 body arise by means of the same un- 
 authorized, unlawful and illegal act 
 or proceeding. Even this external 
 feature of unity, however, does not 
 always exist, and is not deemed es- 
 sential. Courts of the highest stand- 
 ing and equity have repeatedly ap- 
 peared and exercised this jurisdic- 
 tion where individual claims were 
 not only legally separate, but were 
 separate in term, and arose from an 
 entirely separate and distinct trans- 
 action, simply because there was a 
 community of interest among all the 
 claims at issue, and in the remedy.' 
 Pom. Eq. Jur., §§ 222, 911, et scq. 
 The case of Railway Co. v. Schuyler, 
 17 N. Y. 592, is an interesting and 
 instructive case. In that case it ap- 
 peared that spurious certificates of 
 stock in a railroad corporation had 
 been issued by an officer having ap- 
 parent authority to do so, and un- 
 distinguishable on their faces from 
 certificates of genuine stock, and 
 were outstanding in the hands of nu- 
 merous holders. The holders of such 
 spurious certificates were made par- 
 ties defendant to the bill filed by the 
 railroad company. After an elabor- 
 ate consideration of the question, as 
 to whether or not the bill would lie, 
 that court maintained its jurisdic- 
 tion, and held that the false certifi- 
 cates having a common origin and 
 common ground of invalidity, though 
 the holders became such under dif- 
 
 S22
 
 Relating to Multiplicity of Suits. 
 
 §531 
 
 prosecution of actions to enforce a void city ordinance. 65 And in 
 such a case the court has jurisdiction, at the suit of any person 
 injuriously affected by the void ordinance. 66 And upon the ground 
 of the inherent jurisdiction of equity to prevent vexatious litiga- 
 tion, the collection of an entire school district tax, assessed with- 
 out authority of law, may be perpetually enjoined, on a bill 
 brought by all of the taxpayers jointly, or by any member of them, 
 on behalf of themselves and all the others. 67 A bill which charges 
 
 ferent circumstances and convey- 
 ances, and claimed different rights, 
 yet they were all properly joined as 
 defendants, and the bill maintained 
 as a bill to prevent a multiplicity of 
 suits. In Supervisors v. Deyoe, 77 
 N. Y. 219, we find a similar case. 
 The treasurer of Saratoga county, 
 under an authority to issue notes for 
 money advanced to the county to the 
 amount of some $20,000, issued 73 
 notes, to the amount of $138,000. 
 These notes were held by 53 persons, 
 many of whom had bought separate 
 suits upon their notes. The supervis- 
 ors filed a bill in equity against all 
 the holders of said notes, including 
 those who had brought suits at law. 
 Upon demurrer to the bill it was held 
 that upon the facts a case was made, 
 entitling the plaintiff, upon equit- 
 able principles, to implead the hold- 
 «rs of the notes, for the purpose of 
 having their respective rights, and 
 the liability of the county, deter- 
 mined in one action; that the claims 
 were of the same general character; 
 and that the action was maintainable 
 for the purpose of preventing a mul- 
 tiplicity of suits, and to protect 
 plaintiff against the hazard of a dou- 
 ble recovery. The case of Water- 
 works v. Yeomans, L. R. 2 Ch. App. 
 11, was this: A very large number 
 of persons held separate claims 
 against the waterworks company. 
 
 The claims were for damages origi- 
 nating in an inundation resulting 
 from the breaking of a reservoir. 
 Under a special act commissioners 
 were appointed to inquire into and 
 assess these damages, and issue cer- 
 tificates upon the several claims. 
 The waterworks claimed that the 
 power of the commissioners had ex- 
 pired, and that a large number of 
 these certificates were in consequence 
 invalid. A bill by the company 
 against a few, as representing the 
 whole number, was filed, and a de- 
 murrer sustained. The court held 
 that as the rights of all depended 
 upon the same question, and that al- 
 though the defense could be made at 
 law, it was ' a very fit case, by anal- 
 ogy, at least, to a bill of peace, for* 
 a court of equity to interpose, and 
 prevent the unnecessary expense and 
 litigation which would be thus occa- 
 sioned, and to decide once for all the 
 validity or invalidity of the certifi- 
 cates upon which the claims of all 
 persons depend.' See, also, Black t. 
 Shreeve, 7 N. J. Eq. 440." 
 
 65. Newport, City of, v. Newport 
 & C. Bridge Co., 90 Ky. 193, 13 S. 
 W. 720; Davis v. Fasig, 128 IndU 
 271, 27 N. E. 726. 
 
 66. Mayor, etc., Radecke, 49 Md. 
 217; Page's Case, 34 Md. 564. 
 
 67. Carlton v. Newman, 77 Md. 
 408. The remedy by injunction 
 
 823
 
 §532 
 
 Relating to Multiplicity of Suits. 
 
 that the collection of an illegal tax would involve the plaintiff in 
 a multiplicity of suits as to the title of lots being laid out and 
 sold, and prevent their sale, entitles him to injunctive relief against 
 the collection of the tax. 68 To prevent vexatious litigation, na- 
 tional banks may maintain suits in equity to restrain the collection 
 of taxes; on the stock of their shareholders, where the bank has to 
 pay the tax and collect it from the shareholder. 69 And to avoid 
 multiplicity of suits, aggrieved taxpayers, though not jointly in- 
 terested, will be allowed to join in one suit to enjoin the enforce- 
 ment of an illegal tax. 70 
 
 § 532. Same subject. — Where plaintiff has been arrested fifteen 
 times under a city ordinance for occupying a highway, to which 
 he claims title, and fined in each case an amount too small to allow 
 an appeal, an injunction will lie to prevent any further prosecu- 
 tions until the question of title is determined. 71 And where an 
 
 against the collection of invalid tax, 
 was held available where, although 
 the pleadings did not make out a case 
 for Buch relief, the parties stipulated 
 certain facts going to show that a 
 multiplicity of suits would be 
 avoided by jurisdiction being taken 
 in equity. Philadelphia, W. & B. R. 
 Co. v. Neary (Del.), 8 Atl. 363. 
 
 68. Union Pac. R. Co. v. Chey- 
 enne, 113 U. S. 516, 5 S. Ct. 601, 28 
 L. Ed. 1098. 
 
 69. Cummings v. National Bank, 
 101 U. S. 153, 156, 25 L. Ed. 903, 
 per Miller, J. : " In paying the 
 money, the bank is acting in a fidu- 
 ciary capacity as the agent of the 
 stockholders. If it pays an unlawful 
 tax assessed against its stockhold- 
 ers, they may resist the right of the 
 bank to collect it from them. The 
 bank, as a corporation, is not liable 
 for the tax, and occupies the position 
 of stakeholder, on whom the cost 
 and trouble of the litigation should 
 not fall. If it pays, it may be sub- 
 
 jected to a separate suit by each 
 shareholder. If it refuses, it must 
 either withhold dividends, and sub- 
 ject itself to litigation for doing so, 
 or refuse to obey the laws and sub- 
 ject itself to suit by the State. It 
 holds a trust relation which author- 
 izes a court of equity to see that it 
 is protected in the exercise of duties 
 appertaining to it. To prevent mul- 
 tiplicity of suits equity may inter- 
 fere." 
 
 70. Cle e v. Sanders, 74 Mich. 692, 
 42 N. W. 154. 
 
 71. Shinkle v. City of Covington, 
 83 Ky. 420, per Pryor, J. : " His or- 
 dinary remedy against the city for 
 the wrong complained of would not 
 stay proceedings upon the multiplied 
 warrants against him, and in such a 
 case we see no reason why a court of 
 equity should not entertain jurisdic- 
 tion and stay all proceedings on the 
 warrants until the matters alleged in 
 the petition are determined. . . . 
 The real ground for going into equity 
 
 824
 
 Eelatikg to Multiplicity of Suits. 
 
 533 
 
 ordinance prohibiting a gas company from carrying on its business 
 except on certain conditions is void as to such company, its at- 
 tempted enforcement by repeated prosecutions of the company's 
 employees will be enjoined. 72 
 
 § 533. Where several lot owners are illegally assessed. — An 
 
 averment in a petition by several lot owners, to enjoin the collec- 
 tion of benefit assessments on their respective lots made in a street 
 opening case, that " plaintiffs were not parties to the condemnation 
 proceedings, had no notice thereof, and were therefore unable to 
 prevent or protest against the wrongful acts committed in said 
 proceedings" in the absence of any pleading of the ordinance 
 reflating the giving of notice, does not show that the cause of 
 action is the same as to all the plaintiffs, or that the city failed to 
 give the notice required by the ordinance, and that the action is 
 properly brought to avoid a multiplicity of suits. 73 
 
 is the illegal use made of this ordi- 
 nance against a party who is with- 
 out remedy at law and who is com- 
 pelled to surrender possession of his 
 property in order to avoid the im- 
 position of the penalties." See, also, 
 Louisville v. Gray, 1 Litt. (Ky.) 
 147. On the point that the aid of 
 a court of equity cannot be invoked 
 so as to interfere with proceedings 
 of subordinate tribunals, unless to 
 prevent irreparable injury or a mul- 
 tiplicity of suits, Pryor, J., cited 
 Ewing v. St. Louis, 5 Wall. 413; 
 Brooklyn v. Meserole. 26 Wend. 132. 
 
 72. City of Rushville v. Rushville 
 Natural Gas Co., 132 Ind. 575, 28 N. 
 E. 853. 
 
 73. Michael v. City of St. Louis, 
 112 Mo. 610, 20 S. W. 666, Brace, J., 
 epeaking for the majority of the 
 court said: "Each of the plaintiffs, 
 if the fact of the want of notice to 
 him be true, has this defense com- 
 plete and independent for himself. It 
 is neither strengthened nor weakened 
 
 by that of either or all of his other 
 co-plaintiffs or any number of them, 
 and they have no interest in common 
 to be protected by it; each can make 
 it for himself and neither can make 
 it for the other; nor does it matter 
 to any of them whether another 
 makes it or not. One suit will decide 
 it for each of them; consequently 
 there is no more ground for the in- 
 terposition of a court of equity to 
 protect any of them on the ground 
 that either or any of them may other- 
 wise be harassed by a multiplicity of 
 suits than for the purpose of pre- 
 venting a cloud by way of incum- 
 brance upon the title to their prop- 
 erty, which upon their own theory 
 would long since have been dissipated 
 in the ordinary course of proceeding 
 under the law, had they not inter- 
 posed to restrain it." Sherwood, C. 
 J., dissenting said: "This common 
 right to ask injunctive relief is not 
 based at all upon the various methods 
 by which the parties plaintiff might 
 
 825
 
 §534 
 
 Relating to Multiplicity of Suits. 
 
 § 534. Protection of franchises.— Franchises granted to indi- 
 viduals or corporations are often protected from violation by 
 courts of equity in order to prevent multiplicity of suits. 74 Thus 
 an injunction was granted to protect the exclusive right within 
 certain limits of erecting a bridge across the Connecticut river 
 and of taking tolls to reimburse the cost, such a thing being in 
 the nature of a contract and not a monopoly, in the odious sense 
 of the term. 75 When railroad commissioners have advertised in 
 State papers that a schedule of rates as prepared by them will be 
 put in force on a day named, a railroad company may, on a suf- 
 ficient showing, have an injunction to restrain the enforcement of 
 the schedule on the ground of preventing a multiplicity of suits 
 
 have been brought into court, but 
 upon the common right which each 
 one possessed to be relieved against 
 unjust taxation; taxation without 
 notice which cast a cloud on each of 
 their respective titles, that is the only 
 basis and sole foundation of their 
 right to come into a court of equity, 
 and does not rest upon the fact that 
 they were required to be notified by 
 different methods, which methods 
 various howsoever were never pur- 
 sued. ... In conclusion then I 
 hold that the petition is well enough 
 on the ground that it seeks relief to 
 prevent the invasion of a right com- 
 mon to all the plaintiffs; that it 
 seeks to avoid a multiplicity of suits, 
 and that its allegations however gen- 
 eral and indefinite in their nature 
 are good against the demurrer filed, 
 and so I am constrained to dissent." 
 74. In Croton Turnpike Co. v. 
 Ryder, 1 Johns. Ch. (N. Y.) 611, 
 Chancellor Kent held it to be settled 
 that injunction was the proper rem- 
 edy to secure to a party the enjoy- 
 ment of a statutory privilege, for 
 without it he would be exposed to 
 constant and ruinous litigation. Hia 
 decision was followed in Tyack v. 
 
 Bruraley, 1 Barb. Ch. (N. Y.) 519. 
 533. See, also, Livingston v. Vau 
 Ingen, 9 Johns. (N. Y.) 507. In 
 Boston, etc., R. Co. v. Salem, etc., R. 
 Co., 2 liray (Mass.), 1, 27, where the 
 question at issue was the protection 
 of a railroad franchise by injunction, 
 Shaw, C. J., said: "If the right ex- 
 ists and has been invaded, the appro- 
 priate and specific remedy that which 
 Bhall prevent the continuing invasion 
 is by injunction, and this can be af- 
 forded only in equity. On these 
 grounds, we are of opinion that such 
 a case is within the ordinary scope 
 of equity jurisdiction, and that the 
 jurisdiction is peculiarly appropri- 
 ate to such a case. An injunction will 
 generally be granted to secure the 
 enjoyment of a statute privilege of 
 which the party is in actual pos- 
 session unless the right is doubtful." 
 Newburgh Turnpike v. Miller, 5 
 Johns. Ch. (N. Y.) 101. 
 
 75. Enfield Bridge Co. v. Hartford, 
 etc., R. Co., 17 Conn. 40. per Will- 
 iams, C. J. : " It has been adjudged 
 by this court that when the right was 
 not doubtfull an injunction would al- 
 ways be granted to secure the enjoy- 
 ment of a statute privilege of which 
 
 826
 
 Eelating to Multiplicity of Suits. § 535 
 
 for damages, which would be likely to be brought against the 
 company for charging in excess of those rates. 76 
 
 § 535. Patent infringement suits. — In a suit for infringement 
 of a patent, a court of equity has the power, upon defendant's peti- 
 tion, to restrain complainant from bringing further suits against 
 the purchasers or users of the patented article, upon a proper show- 
 ing that such suits are vexatious and oppressive. 77 But a recovery 
 against the maker of an infringing article or apparatus, is no bar 
 to an action against the user of it, for damages resulting from his 
 use, and for injunction against further use. 78 And a notice to users 
 that the apparatus they are using is claimed to be an infringement, 
 and that the patentee intends to defend his patent rights, will not be 
 restrained by the courts, since should he fail to give such notice 
 during his litigation with the infringing manufacturer, the user 
 may insist when he is sued that the patentee's laches should pre- 
 vent his recovery. 79 And in modification of the rule before laid 
 down, it is now held that a patentee who, without unreasonable 
 delay, begins suit against a manufacturer for infringement, will 
 not be enjoined, in the absence of any showing of intention not to 
 press the suit, from notifying the manufacturer's customers of 
 his claim of infringement, and that he will enforce his rights 
 
 the party is in the actual possession; Boston Cash, etc., Co., 41 Fed. 51, 
 
 and it was added that to restrain a per Cott, J.: "I think an examina- 
 
 multiplicity of suits and prevent im. tion of the affidavits that the numer- 
 
 mediate damage to a statute privi- ous suits brought by the complain- 
 
 Jege is the exercise of a sound dis- ants against the customers of the de- 
 
 cretion." Enfield Bridge Co. v. Conn. fendants, are vexatious and that, 
 
 Riv. Co., 7 Conn. 50; Hartford Bridge therefore, an injunction should be 
 
 Co. v. East Hartford.. 16 Conn. 149. granted as prayed for." And see, on 
 
 And see Port of Mobile v. Louisville the same point, Ide v. Engine Co., 31 
 
 & N. R. Co., 84 Ala. 115, 4 So. 106. Fed. 901, where threatened suits 
 
 See, also, Allen v. Donnelly, 5 Ir. Ch. against customers were enjoined; 
 
 239; Ashworth v. Browne, 10 Ir. Ch. also Allis v. Stowell, 16 Fed. 783; 
 
 421; Letton v. Gooden, L. R. 2 Eq. Birdsell v. Manufacturing Co., 1 
 
 123. Hughes, 64. 
 
 76. Chicago, etc., R. Co. v. Dey, 78. Birdsell v. Shaliol, 112 U. S. 
 35 Fed. 866. 485, 5 S. Ct. 224. 
 
 77. National Cash Register Co. v. 79. Edison Electric Light Co. v. 
 
 827
 
 §530 
 
 Relating to Multiplicity of Suits. 
 
 against them, and that if necessary he may sue each and all of 
 them separately, whatever their number without thereby institut- 
 ing such a multiplicity of actions as equity will enjoin. 80 
 
 § 536. Where carrier collects insurance for numerous owners. 
 — Where a carrier secures insurance on goods belonging to 
 numerous owners, for their benefit as well as its own, and, the 
 goods being destroyed, collects the entire amount of the insurance, 
 equity has jurisdiction, on the ground of avoiding a multiplicity 
 of suits and the difficulty of making a proper apportionment, of a 
 suit brought by some of the owners, for the benefit of all who 
 might join with them, to recover their alleged proportional in- 
 terests therein. 81 
 
 Equitable L. Ins. Co., 55 Fed. 478; 
 Kelley v. Manufacturing Co., 44 Fed. 
 19; Tuttle v. Matthews, 28 Fed. 98. 
 
 80. New York Filter Co. v. 
 Schwarzwalder, 58 Fed. 577. 
 
 81. Pennefeather v. Baltimore 
 Steam-Packet Co., 58 Fed. 481.. per 
 Morris, J.: "As to the objection 
 urged that this is not a case of equity 
 cognizance, it is true that each com- 
 plainant, if he has a good cause of ac» 
 tion, might maintain an action at law 
 to recover the proportion of the fund 
 collected by the defendant in respect 
 to each complainant's goods; but it 
 seems quite clear that the remedy at 
 law is not adequate and complete, 
 and would require a multiplicity of 
 suits with regard to one subject mat- 
 ted. If the complainants can re- 
 cover, there will be serious difficulties, 
 in a trial at law, to determine what 
 amount is to be distributed, and what 
 proportion each is entitled to. It 
 would depend on what the loss of 
 each of the numerous shippers might 
 prove, and the proportion of their 
 losses to the whole fund proved to be 
 remaining in defendant's hands for 
 distribution. If their questions were 
 
 settled by different juries in separate 
 trials for each claimant, there would 
 possibly be different results, with in- 
 juries to either plaintiff or defendant, 
 and great expense. Oelrichs v. Spain, 
 15 Wall. 211. In Snowden v. Gen- 
 eral Dispensary, 60 Md. 85, a bill in 
 equity was filed by one dispensary on 
 behalf of all entitled to share in cer- 
 tain fines collected by the sheriff and 
 was sustained. The court said: 
 ' Then, again, at law, each dispensary 
 would be obliged to sue separately; 
 and in the one case the proof may 
 show the defendant has or ought to 
 have collected, in the aggregate, a 
 certain sum ; and, in another, that he 
 has collected a greater or less 
 amount. Besides, in one case it may 
 appear that a certain number of dis- 
 pensaries are entitled to the benefit 
 of the act, and in another, a greater 
 or less number are entitled. The re- 
 sult would be a multiplicity of ac- 
 tions, and expensive and vexations lit- 
 igations, with different judgments, 
 each varying in amounts; and this 
 too, in the face of the Act of 1833, 
 which provided that the fund shall be 
 distributed equally among the sev- 
 
 828
 
 Relating to Multiplicity of Suits. § 537 
 
 § 537. Enjoining pending actions in same and other courts. — 
 In order to prevent a multiplicity of suits, a court of equity has 
 power, by injunction, to restrain another equitable action in the 
 same court, and in New York it has been held that the Supremo 
 Court, in one judicial district, may restrain another action pend- 
 ing in that court in another district. 82 And where, after the com- 
 mencement of an action in the superior court of New York city, 
 to recover the amount of interest coupons upon bonds received by 
 a trust mortgage, the trustee commenced an action in the Supremo 
 Court to foreclose the mortgage for the benefit of all the bond- 
 holders who, including the plaintiff in the former action, were 
 made parties; it was held that the Supreme Court, in order to 
 prevent unnecessary litigation and expense, had the power to stay 
 proceedings in the superior court until the determination of tho 
 foreclosure suit. 83 Again, where plaintiff sued to compel the deter- 
 mination of hostile claims to ten pieces of real property, nine of 
 which were in New York City, and one in Westchester county, and 
 defendants brought ten actions of ejectment against plaintiff to 
 establish their title to the property, it was held, that the plaintiff 
 in the first suit was entitled to an injunction restraining defend- 
 ants from proceeding with nine of their ejectment suits upon tho 
 ground of multiplicity of suits, and that there was no inconsistency 
 in allowing the other action to proceed to trial. 84 And where the 
 
 eral dispensaries entitled. By a bill tied in a single suit brought by all 
 
 in equity, with a prayer for discovery, these persons uniting as co-plaintiffs ; 
 
 all this may be avoided, and the or one of the persons suing on be- 
 
 rights of all concerned may be finally half of the others, or even by one 
 
 settled in one litigation.' The pres- person suing for himself alone.' O9- 
 
 ent case belongs to the class men- borne v. Railroad Co., 43 Fed. 824; 
 
 tioned in 1 Pom. Eq. Jur., § 245, of Emigration Co. v. Guinault, 37 Fed. 
 
 which it is said equity will take cog- 523." 
 
 nizance to prevent a multiplicity of 80. Erie R. Co. v. Ramsey, 45 N. 
 
 suits: 'Where a number of persons Y. 637. 
 
 have separate and individual claims 83. Cushman v. Leland, 93 N. Y. 
 
 and rights of action against the same 652. 
 
 party, but all arise from some com- 84. Cuthbert v. Chauvet. 14 N. Y. 
 
 mon cause, are governed by the same Supp. 385, per Lawrence, J. : " The 
 
 legal rule, and involve similar facts, rights of the heirs can as well be dis« 
 
 and the whole matter might be set- posed of in one action of ejectment 
 
 829
 
 §538 
 
 Relating to Multiplicity of Suits. 
 
 United States courts have jurisdiction by reason of the subject 
 matter or the citizenship of the parties in a proper case for an 
 injunction, the injunction may issue and will be effectual to pre- 
 vent the institution of a multiplicity of suits, or of any suit, in 
 any other court, cither in a Federal or a State court. 85 
 
 § 538. Where different creditors are interested. — An injunc- 
 tion will not lie to prevent a multiplicity of suits which would lie 
 between different parties, though the issue in each case must be 
 determined on the same state of facts. 86 Thus a sheriff from whom 
 goods have been replevied will not be enjoined from attaching 
 them in favor of persons not parties to the replevin suit, on the 
 ground that such successive attachments are vexatious. 87 Several 
 creditors, however, who are all common victims of a debtor's fraud, 
 may be compelled to adjudicate their claims in one suit in equity. 8 * 
 
 as in ten, and where a multiplicity of 
 suits is threatened, it is proper prac- 
 tice to restrain the prosecution of 
 every suit but one, and to allow that 
 one to proceed to trial and final de- 
 termination for the purpose of test- 
 ing the legal questions upon which all 
 the actions are dependent." Marvin 
 Safe Co. v. Mayor, etc., 22 N. Y. VV. 
 Dig. 523. And see Stamm v. Bost- 
 wick, G5 How. Pr. (N. Y.) 358. 
 
 85. Texas & P. Ry. Co. v. Kute- 
 man, 54 Fed. 547, 4 C. C. A. 503. 
 
 86. Dyer v. School District, No. 1, 
 61 Vt. 96, 17 Atl. 788, per Royce, C. 
 J.: " The rule that a court of equity 
 will interfere to prevent a multi- 
 plicity of suits is not applicable, as 
 there would appear to be no danger 
 of a multiplicity of suits between the 
 parties to the bill, but only a possi- 
 bility or probability that other per- 
 sons not parties might bring other 
 suits for the enforcement of rights 
 asserted by them upon substantially 
 the same basis of fact." 
 
 87. Patterson v. Seaton, 64 Iowa 
 115, 19 N. \V. 869. 
 
 88. After a creditor of an insolv- 
 ent firm of wholesale clothiers had 
 attached their entire stock, other per- 
 sons claiming to be creditors for 
 goods sold, whose claims had not 
 matured, assumed to rescind the 
 sales as having been induced by 
 fraud, and replevied the goods, 
 which they took from the pos- 
 session of the sheriff. There w r ere 
 more than fifty of these actions, some 
 claiming cloth, some linings, and 
 others trimmings, so that entire gar 
 ments were replevied by persons who 
 had furnished the buttons thereon, 
 and others were sought to be taken 
 by several different creditors. Held, 
 that the attaching creditor may 
 maintain a suit to restrain further 
 proceedings in replevin^ to have a re- 
 ceiver appointed, and compel the liti- 
 gation of all the adverse claims to 
 the property in one suit. National 
 Park Bank v. Goddard, 62 Hun (N. 
 
 830
 
 Relating to Multiplicity of Suits. § 539 
 
 § 539. Different creditors' actions not enjoined. — The general 
 rule is that the law favors rather than hinders the diligent, and 
 equity will not stay a creditor in his efforts to secure the money 
 which his debtor owes him, from the fact that there are many 
 other creditors pursuing the same debtor, and that, therefore, there 
 will be a multiplicity of suits. 89 And attachment creditors whose 
 debts are distinct, and arise out of separate transactions, and who 
 have no common interest, cannot be joined by the debtor in one 
 suit in equity, in order to avoid multiplicity of suits. 90 And gen- 
 erally actions by different persons on distinct and separate grounds 
 do not constitute a multiplicity of suits, which a court of equity 
 will enjoin. 91 And it has been decided that a suit against a debtor 
 in one State and attachment in another State against his property,. 
 may proceed at the same time for the same debt and that neither 
 proceeding will be enjoined at the instance of the debtor, because 
 persons who claim to be creditors of the creditor have a bill pend- 
 ing in chancery against the creditor, to which the debtor has been 
 made a party, the object of which bill is to seize all the assets of 
 the creditor and have them collected in by a receiver. 92 But the 
 prosecution of attachment suits in different States may be enjoined 
 where the creditor may prosecute his action against the property 
 in the State in which the injunction is sought and the obvious 
 intent of the suits which it is sought to enjoin is to harass the 
 defendant. 93 
 
 Y.), 31, 16 N. Y. Supp. 343; aff'd 91. Haines v. Carpenter, 91 U. S. 
 
 in 131 N. Y. 494, 30 N. E. 566. 254, 23 L. Ed. 345. In Lightfoot v. 
 
 89. Hanstein v. Johnson, 112 N. Planters Banking Co., 58 Ga. 136, it 
 C. 253, 17 S. E. 155. was held that a suit against a debtor 
 
 90. Fielding v. Lucas, 87 N. Y. in one State, and an attachment 
 197. In Brinkerhoff v. Brown, 6 against his property in another State 
 Johns. Ch. 139, 151, a bill by vari- might proceed at the same time, 
 oua distinct judgment creditors, to though a suit in chancery was also 
 render effectual their executions pending against his creditor, in 
 against their debtor, was sustained. which he was made a party. 
 
 in order to prevent a multiplicity of 92. Lightfoot v. Planters' Bank- 
 suits, though their only community ing Co., 58 Ga. 136. 
 of interest was in the relief de- 93. Standard Roller B. Co. v. 
 manded. See, also, Cadignn v. Crucible Steel Co. (N. J. Ch. 1906),. 
 Brown, 120 Mass. 493; Ballou v. 63 Atl. 546. 
 Hopkintou, 4 Gray (Maaa.), 324. 
 
 831
 
 §§ 539a, 540, 541 Relating to Multiplicity of Suits. 
 
 § 539a. Where statute provides mode of procedure; attach- 
 ment suits. — The fact that the statute points out a mode of pro- 
 cedure in attachment suits, and provides a method for third per- 
 sons to assert their claims to property attached which is ordinarily 
 exclusive of all others, will not deprive a court of chancery of its 
 right to interpose for the purpose of preventing a multiplicity of 
 suits. 94 
 
 § 540. Where instruments held by independent parties. — The 
 mere fact that numerous independent parties hold separate instru- 
 ments, upon which they might bring separate suits, is not suffi- 
 cient to justify a court of equity in entertaining an action by the 
 maker to compel them to litigate their claims in a forum which he 
 selects. He must, in addition, establish the necessity of a resort 
 to equity, to prevent an injury which might be irreparable, and 
 which equity alone is competent to avert. 95 And while in such a 
 case the apprehension of a multiplicity of suits may not alone be a 
 sufficient ground for restraining separate suits at law upon such 
 instruments, yet if to such ground be added the existence of a 
 defense, to establish which extrinsic proof may be necessary and 
 the risk of losing such proof, a proper case may thus be made out 
 for equitable relief. 30 
 
 § 541. In cases of interpleader. — Equity may interpose also 
 to prevent vexatious litigation, where a bill of interpleader is filed 
 to protect a party who is liable to discharge some debt, duty or 
 
 94. Bishop v. Rosenbaum, 58 Miss. sort to an equitable action. Grand 
 84. Chute v. Winegar, 15 Wall. (U. S.) 
 
 95. Town of Venice v. Woodruff, 355, 21 L. Ed. 170; Minturn v. 
 62 N. Y. 462, per Rapallo, J.: Farmers Loan Co., 3 N. Y. 498; Per- 
 " Whether the question be regarded rine v. Striker, 7 Paige (NY.), 598; 
 as one of jurisdiction or practice, it Morse v. Hovey, 9 Paige (N. Y.), 
 is established by the later decisions 197; Field v. Holbrook, 6 Duer (N. 
 that some special ground for equit- Y.), 597; Allerton v. Belden, 49 N. 
 able relief must be shown, and that Y. 373. 
 
 the mere fact that the instrument 96. Springport v. Teutonia Sav. 
 
 ought not to be enforced, is insuffi- Bank, 75 N. Y. 397. 
 «ient, standing alone, to justify re- 
 
 832
 
 Relating to Multiplicity of Suits. § 542 
 
 obligation from suits by two or more persons, severally claiming 
 to be entitled to the benefit of such duty, debt or obligation. 97 A 
 bill of interpleader can, however, be sustained only where the 
 parties sought to be interpleaded have some right or interest in 
 the subject matter of the action which interferes with the plain- 
 tiff's attempt to establish his own rights. Thus the fact that de- 
 fendants have fraudulently conspired for the purpose of harassing 
 the plaintiff, by prosecuting separate suits against him for the 
 same cause, and that such suits have been commenced in pursuance 
 of such conspiracy, is not sufficient to sustain an action or uphold 
 an injunction, where the defendants claim adversely to each other, 
 as well as to the plaintiff, and no direct fraud is charged. 98 
 
 § 542. In cases of nuisance and waste. — The modern rule is 
 that equity has concurrent jurisdiction with courts of law in cases 
 of private nuisance, on the grounds of restraining irreparable mis- 
 chief and suppressing interminable litigation. 99 Thus under this 
 head of equity jurisdiction, the owners of several lots of land, 
 though deriving title from different grantors, may join in a bill 
 in equity to restrain a private nuisance, which threatens a con- 
 tinuous and permanent injury to a passageway, in which they have 
 a right of way in common, as appurtenant to their several estates. 1 
 Where an injunction is granted against future waste, an account 
 
 97. Conley v. Insurance Co., 67 493, per Morton, J. : " In Ballou v. 
 Ala. 472; Burton v. Black, 32 Ga. Hopkinton, 4 Gray (Mass.), 324, sev- 
 63; Hathaway v. Foy, 40 Mo. 540; eral owners of mills on a stream 
 Cady v. Potter, 55 Barb. (N. Y.) joined as plaintiffs in a bill in 
 463. equity, to restrain the defendant 
 
 98. McHenry v. Hazard, 45 Barb. from diverting and wasting the water 
 (N. Y. ) 657. And see Mohawk, etc., of a reservoir, and to equalize the 
 R. Co. v. Clute, 4 Paige (N. Y.), 392. flow of water in the stream. Indeed, 
 
 99. Mowday v. Moore, 133 Pa. St. the court assign as one of the rea- 
 598, 611, 19 Atl. 626; Carlisle v. sons for holding jurisdiction in 
 Cooper, 21 N. J. Eq. 576. And see equity, that at law each owner must 
 New Castle City v. Raney, 130 Pa. bring a separate action to obtain a 
 St. 546, 18 Atl. 1066; Rhea v. For- remedy for his particular injury, and 
 syth, 37 Pa. St. 503; Rouse v. Mar- thus the remedy in equity prevent* 
 tin 75 Ala. 510; Corning v. Troy a multiplicity of suits." See also. 
 Factory, 40 N. Y. 191. Murray v. Hay, 1 Barb. Ch. (N. Y.) 
 
 1. Cadigan v. Brown, 120 Mass. 59. 
 
 833 
 53
 
 1543 
 
 Relating to Multiplicity of Suits. 
 
 for past waste may be decreed as incidental to the injunctive 
 relief, in order to prevent multiplicity of suit-. 2 
 
 § 543. Where many are injured by same negligence. — While 
 courts of equity will freely exercise their jurisdiction in order to 
 prevent an unnecessary and vexatious multiplicity of suits, they 
 will not enjoin the prosecution of several pending actions at law, 
 instituted by different plaintiffs, and compel their consolidation 
 into a single suit in equity, at the instance of the common de- 
 fendant at law, merely because the cause of action in each of the 
 several actions at law arose from the same act of negligence or 
 other single tort of the common defendant at law.' ; This rule was 
 
 2. Ackerman v. Hartley, 8 N. J. 
 Eq. 476; Allison's Appeal, 77 Pa. St. 
 221; Coleman's Appeal, 75 Pa. St. 
 441 ; Ma88on's Appeal, 70 Pa. St. 
 26; Souder's Appeal, 57 Pa. St. 498; 
 Thomas v. Oakley, 18 Ves. 184. 
 
 3. Tribbette v. Illinois Central R. 
 Co.. 70 Miss. 182, 12 So. 32. On the 
 appeal in this ease from the chal- 
 cellor's decision overruling the mo- 
 tion to dissolve the injunction, it was 
 argued by Calhoun & Green, in the 
 course of their prevailing brief for 
 the property owners, that the in- 
 junction would not in fact curtail the 
 litigation, but that the separate is- 
 sues made in the several actions at 
 law would be merely transferred to 
 the chancery court, and there raised 
 again by separate answers to the bill, 
 and by separate cross-bills and sepa- 
 rate answers to those cross-bills; that 
 any charges of contributory negli- 
 gence would have to be separately 
 pleaded and tried, and the findings 
 thereon would have to be separate, even 
 if the question of the company's neg- 
 ligence was common. That, in fact, 
 there would be the same number of 
 issues in the one suit in equity as in 
 all of the actions at law, and that the 
 
 costs would bo taxed in each isi ue to 
 the parties, as they lost or won. On 
 pronouncing the decision that th* 
 property owners were entitled to 
 their separate actions at law, and to 
 trial by jury, Chief Justice Campbell 
 delivered the following opinion: 
 " A number of owners of property in 
 the town of Terry, destroyed by firo 
 from sparks emitted by an engine of 
 the appellee, severally sued in the 
 Circuit Court to recover of the ap- 
 pellee damages for the respective 
 losses by said fire, alleged to have re- 
 sulted from the negligence of the de- 
 fendant. While these actions were 
 pending, the appellee exhibited its 
 bill against the several plaintiffs, 
 averring that no liability as to it 
 arose by reason of the fire, which 
 arose, not from any negligence or 
 wrong of it or its servants, but from 
 the fault of others, for which it is 
 not responsible; and that the plain- 
 tiffs in the different actions are 
 wrongfully seeking to recover dam- 
 ages by their several actions, all of 
 which grew out of the same occur- 
 rence, and depend for their solution 
 upon the same questions of fact and 
 of law; wherefore, to avoid multi- 
 
 834
 
 Relating to Multiplicity of Suits. 
 
 §543 
 
 emphasized by the Supreme Court of Mississippi, in a case where 
 several property owners in the town of Terry had each brought 
 
 plicity of suits, and the consequent 
 harrassment and vexation, all of the 
 said several plaintiffs are sought to 
 be enjoined from prosecuting their 
 different actions, and to be brought 
 in and have the controversies settled 
 in the one suit in equity. There is 
 no common interest between these 
 different plaintiffs, except in the 
 questions of fact and law involved. 
 The injunction sought was granted, 
 and the defendants served with pn> 
 eess, when they appeared and de- 
 murred to the bill, and moved to dis- 
 solve the injunction on the face of 
 the bill. The case was heard on mo- 
 tion to dissolve the injunction, and 
 it was overruled, and an appeal 
 granted. The question presented is 
 as to the rightfulness of the suit 
 against the defendants, on the sole 
 ground that their several actions at 
 law involve the very same matters 
 of fact and law, without any other 
 community of interest between them. 
 The granting and maintaining the 
 injunction are fully sustained by 1 
 Pom. Eq. Jur., § 255, et seq., and it 
 is probable that any judge author- 
 ized would have granted the injunc- 
 tion upon the text cited. But we af- 
 firm, after careful examination and 
 full consideration, that Pomeroy is 
 not sustained in his ' conclusions ' 
 stated in section 2C9 of his most 
 valuable treatise, and that the cases 
 he cited do not maintain the propo- 
 sition that mere community of inter- 
 est ' in the questions of law and fact 
 involved in the general controversy, 
 or in the kind and form of relief de- 
 manded and obtained by or against 
 each individual member of the nu- 
 merous body,' is ground for the in- 
 
 terposition of chancery to settle in 
 one the several controversies. There 
 is no such doctrine in the books, and 
 the zeal of the learned and usually 
 accurate writer mentioned to main- 
 tain a theory has betrayed him into 
 error on this subject. It has so 
 blinded him as to cause the comfound- 
 ing of distinct things in his view of 
 the subject, to wit, joinder of parties 
 and avoidance of multiplicity of 
 suits. It has been found that many 
 of the cases he pressed into service 
 to support his assertion are on the 
 subject of joinder where confessedly 
 there could be no doubt that the mat^ 
 ter was of equity cognizance. Every 
 case he cited to support his text will 
 be found to be either where each 
 party might have resorted to chan- 
 cery, or been proceeded against ir 
 that form, and to rest on some other, 
 recognized ground of equity interfer- 
 ence other than to avoid multiplicity 
 of suits. The cases establish this 
 proposition, viz.: Where each of sev- 
 eral may proceed, or be proceeded 
 against, in equity, their joinder as 
 plaintiffs or defendants in one suit 
 is not objectionable. But this is a 
 very different question from that, 
 whether, merely because many ac- 
 tions at law arise out of the same 
 transaction or occurrence, and de- 
 pend upon the same matters of fact 
 and law, all may proceed or be pro- 
 ceeded against jointly in one suit in 
 chancery; and it is believed that it 
 has never been so held, and never 
 will be, in cases like those here in- 
 volved. Where each of several par- 
 ties may proceed in equity separately 
 they are permitted to unite and make 
 common cause against a common ad-
 
 £543 
 
 Relating to Multiplicity of Suits. 
 
 his separate action for damages to his separate property, caused 
 by a firo set by sparks from a railroad engine of the common 
 
 versary, and one may implead in one 
 suit in equity many who are his ad- 
 versaries in a matter common to all 
 in many cases, but never when the 
 only ground of relief sought is that 
 the adversaries are numerous, and 
 the suits are for that not in itself a 
 matter for equity cognizance. At- 
 tention to the distinction mentioned 
 will resolve all difficulties in con- 
 sidering the many cases on this sub- 
 ject. There must be some recognized 
 ground of equitable interference in 
 the subject matter of the contro- 
 versy, or common right or title in- 
 volved, to warrant the joinder of all 
 in one suit; or there must be some 
 common purpose in pursuit of a 
 common adversary, where each may 
 resort to equity, in order to be joined 
 in one suit; and it is not enough that 
 there ' is a community of interest 
 merely in the question of law or of 
 fact involved,' etc., as stated by 
 Pomeroy in section 268. Although he 
 asserts that this early theory has 
 long been abandoned, he fails utterly 
 to prove it. An examination of the 
 cases he cited under section 256 et 
 seq. will show this to be true. The 
 opinion of the justice (Harlan) in 
 Osborne v. Railroad Co., 43 Fed. 824, 
 does support the text of Pomeroy, 
 and cites 1 Pom. Eq. Jur., §§ 245, 
 257, 268, 293, and Crews v. Bur- 
 cham, 1 Black, 352-357. We are con- 
 tent with what has already been said 
 as to the text of Pomeroy, and af- 
 firm that but one of his citations sus- 
 tain his conclusion, and that the lan- 
 guage of Harlan, J., in the case cited. 
 Nor does Crews v. Burcham sustain 
 the language of Justice Harlan. It 
 belongs to the class of cases where 
 
 each party might have brought his 
 bill, and all who had a common cause 
 were permitted to make common con- 
 test in chancery with their adver- 
 saries who were united by a common 
 tie. The decision of the case in which 
 Harlan, J., gives support to the doc- 
 trine of Pomeroy is not complained 
 of, but the opinion is not justified by 
 any case with which we have been 
 made acquainted. The case was one 
 in which each might have brought 
 his separate bill to quiet title, and all 
 concerned were permitted to unite in 
 one bill against their common adver- 
 sary; and so, it is believed, will be 
 found all the cases on this subject. 
 Certainly, those relied on by Pome- 
 roy are of this character. Those 
 cited in the note to section 269, in 
 which he asserts most broadly the 
 doctrine we combat, are Keese v. City 
 of Denver, 10 Colo. 113, 15 Pac. 
 825; Carlton v. Newman, 77 Me. 
 408, 1 Atl. 194; De Forest v. Thomp- 
 son, 40 Fed. 375 ; Osborne v. Rail- 
 road Co., 43 Fed. 824; Railroad Co. 
 v. Gibson, 85 Ga. 1, 11 S. E. 442; 
 Railroad Co. v. Schuyler, 17 N. Y. 
 592; Sheffield Waterworks Case, L. 
 R. 2 Ch. App. 8; and Case of the 
 Complicated Contract, Black v. 
 Shreeve, 7 N. J. Eq. 440. The case 
 in 43 Fed. 824, has already been no- 
 ticed supra. The opinion in the case 
 in 10 Colo. 15 Pac. Rep., quotes the 
 language of Pom. Eq. Jur., § 269, but 
 the case was one where one or more 
 plaintiffs may sue in equity for the 
 benefit of all others similarly situ- 
 ated. Carlton v. Newman, 77 Me. 
 408, 1 Atl. 194, affirms the jurisdic- 
 tion of equity to enjoin the collec- 
 tion of an illegal tax for the purpose 
 
 836
 
 Kelating to Multiplicity of Suits. 
 
 §543 
 
 defendant company, and had been enjoined by the chancellor from 
 proceeding with those actions and compelled jointly to litigate 
 
 of preventing the multiplicity of 
 suits where the entire levy affecting 
 all the taxpayers was illegal. It ap- 
 pears to be exceptional, and to rest 
 upon peculiar grounds, not applic- 
 able to the case before us. The opin- 
 ion cites Pom. Eq. Jur., § 269, but 
 seems to rest on the proposition that 
 the whole tax was illegal. The case 
 in 40 Fed. Rep. 375, was that of a 
 plaintiff exhibiting a bill to set aside 
 a sale of land, and vacate deeds made 
 in pursuance to it, against numerous 
 parties, all of whom claimed by sep- 
 arate parcels, but under the proceed- 
 ing attacked as void. A bill might 
 have been exhibited against each one 
 separately, and it was held to be 
 proper to unite all in one suit. That 
 was clearly right, but Jackson, J., in 
 his opinion, concurred in by Harlan, 
 J., cited Pom. Eq. Jur., §§ 245-269, 
 inclusive, which we have shown to be 
 unsupported by any case of author- 
 ity. The case in 85 Ga., 11 S. E., is 
 a case where a few persons, as repre- 
 sentatives of a class consisting of 
 many, exhibited a bill in behalf of 
 all, and lends no countenance to the 
 proposition for which it is cited. The 
 cases in 17 N. Y. 592, L. R. 2 Ch. 
 App. 8, and 7 N. J. Eq. 440, furnish 
 no sort of support to the text of the 
 author, and it is confidently claimed 
 that every case that can be found, if 
 entitled to any consideration, will be 
 seen to be one resting on some other 
 principle than that for which it has 
 been cited in the connection now un- 
 der review. And while judges have 
 in various instances cited, and some- 
 times quoted, Pomeroy, in the lan- 
 guage alone characterized as unsup- 
 ported, in every instance, we think 
 
 the case will not call for it, but to be 
 resolvable independently of it upon 
 other grounds of equitable interfer- 
 ence; and in our opinion not one of 
 the learned courts which have cited 
 or quoted Pomeroy in the way men- 
 tioned would sustain this bill if it 
 were before it for decision. There is 
 danger that by frequent repetitions 
 and piling up assertions, judges cit- 
 ing and quoting text books, and text 
 writers citing the cases thus referring 
 to them, a false doctrine might ac- 
 quire strength enough to dispute with 
 the true; but we do not believe that 
 any accumulation of dogmatic asser- 
 tion and citations and quotations 
 can ever establish the proposition 
 that a defendant sued for damages 
 by a dozen different plaintiffs, who 
 have no community of interest or tie 
 or connection between them except 
 that each suffered by the same act, 
 may bring them all before a court of 
 chancery in one suit, and deny them 
 their right to prosecute their actions 
 separately at law as begun by them. 
 It has never been done. There is no 
 precedent for it, and, while this is 
 not conclusive against it, it is signifi- 
 cant and suggestive. If it is true, aa 
 stated by Pomeroy and some quoting 
 him, that mere community of inter- 
 est in matters of law and fact makes 
 it admissible to bring all into one 
 suit in chancery in order to avoid 
 multiplicity of suits, all sorts of 
 cases must be subject to the princi- 
 ple; any limitations would be purely 
 arbitrary. It must be universal ap- 
 plication, and strange results might 
 flow from its adoption. The wreck- 
 ing of a railroad train might give 
 rise to a hundred actions for dam- 
 
 837
 
 g 54a 
 
 Relating to Multiplicity of Suits. 
 
 their respective claims for damages in a single suit in the chancery 
 court. The fact that in such a case there would be great danger 
 of confusion at the trial, and great difficulty in adjusting the righta 
 
 agea instituted in a dozen different 
 counties, under our law as to 
 venue of suits against railroad com- 
 panies, in some of which executors or 
 administrators or parent and chil- 
 dren might sue for the death of a 
 passenger, and in others claims 
 would be for divers injuries. If 
 Poineroy's test be maintainable, all of 
 these numerous plaintiffs, having a 
 community of interest in the ques- 
 tions of law and fact, claiming be- 
 cause of the same occurrence, de- 
 pending on the very same evidence, 
 and seeking the same kind of re- 
 lief (damages), could be brought be- 
 fore a chancery court in one suit, to 
 avoid multiplicity of suits. But we 
 forbear. Surely the learned author 
 would shrink from the contemplation 
 of such a spectacle; but his doctrine 
 leads to it, and makes it possible. 
 The learned counsel for the appellee 
 here felt the difficulty of the possible 
 result of the doctrine contended for, 
 and sought to limit its application to 
 controversies about property, exclud- 
 ing those for injuries to be redressed 
 by the estimation of juries; but as 
 we have said, any such restriction is 
 arbitrary and inadmissible. If pre- 
 venting multiplicity of suits is such 
 a good thing as to justify bringing 
 into one suit all who are interested 
 in the same questions of law and 
 fact, it is needful that the benefits 
 shall be extended to all cases where 
 it can be applied, and not restricted 
 to its beneficent operations. It 
 should have full sway in all classes 
 of cases. The sole object, we are 
 told, of the doctrine is to prevent 
 multiplicity of suits by uniting all 
 
 who have a common interest in the 
 same questions in one suit, and it 
 is quite as important to effect this i» 
 one class of cases as another; and a* 
 actions against railroad companies 
 are quite numerous these days, it 
 is of especial concern to prevent mul- 
 tiplicity in this class of cases. There- 
 fore, if the doctrine advanced were 
 sound, it would have to be applied 
 wherever the conditions prescribed ex- 
 isted — that is, wherever many are 
 interested in the same questions of 
 fact and law. The case of Supervis- 
 ors v. Deyoe, 77 N. Y. 219, contains 
 a good illustration of what we have 
 said. In that case the suit against 
 numerous parties was maintained be- 
 cause it combined elements of juris- 
 diction in each of the cases of inter- 
 pleader, bill of peace, and cancella- 
 tion of written instruments. The re- 
 covery of damages for a tort or 
 breach of contract does not pertain 
 to courts of chancery, which decree 
 damages only in a very limited class, 
 of cases, or under peculiar circum 
 stances, or as an incident to some 
 other relief. 1 Pom. Eq. Jur., § 112; 
 2 Story, Eq. Jur., § 799. Even this. 
 learned author (Pomeroy), does not 
 say that the existence of numerous 
 suits for damages by a tort or breach 
 of contract, where one case depends 
 on the same questions of fact and 
 law, may be drawn into chancery in 
 one suit, and no case has been found 
 to warrant it. Every case cited by 
 Pomeroy and by the learned and dili- 
 gent counsel in this case has been 
 examined, and may be disposed of 
 on some other principle acted on by 
 courts of chancery than that con- 
 
 838
 
 Relating to Multiplicity of Suits. 
 
 §544 
 
 of all the parties in one decree, is an important reason for not 
 uniting such separate actions for damages in one suit in equity.* 
 § 544. Enjoining some of many suits. — A person who is being 
 sued separately by several persons in respect to the same subject 
 matter, may be entitled to enjoin some of them from proceeding 
 with their actions while others will be permitted to continue. 5 
 
 tended for, and necessary to sustain 
 the bill in this case. Every case is 
 resolvable on some well-recognized 
 principle of equity procedure, and 
 not one sustains the bill. The cases 
 repudiating the doctrine contended 
 for are numerous. We do not cite 
 them, for it is unnecessary, in view 
 of the fact that not a case has been 
 found in England or America to sus- 
 tain the bill. No question as to mis- 
 take or jurisdiction between courts of 
 law and chancery within the com- 
 templation of section 147 of our Con- 
 stitution, arises in this case; for if 
 we had only one forum, armed with 
 full power to administer all remedial 
 justice, joinder of these parties in 
 one action would not be admissible. 
 Bliss, Code PL This author says 
 ( section 76 ) : ' Two or more owners 
 of mills propelled by water are inter- 
 ested in preventing an obstruction 
 above that shall interfere with the 
 downflow of the water, and may unite 
 to restrain it or abate it as a nuis- 
 ance; but they cannot hence unite in 
 an action for damages, for, as to the 
 injury suffered there is no commun- 
 ity of interest. There is no more a 
 common interest than though a car- 
 rier had at one time carelessly de- 
 stroyed property belonging to dif- 
 ferent persons, or the lives of differ- 
 ent passengers.' — thus putting the 
 very case we have. The Supreme 
 Court of California has cited with 
 approval this very section. We thus 
 confront Pomeroy with an equally 
 
 intelligent author, and a decision by 
 the Supreme Court of his own State, 
 at war with his views on this sub 
 ject, if indeed, it is true that he 
 would uphold this bill, which we do 
 [not believe. We have written so much 
 to combat error supported by a dis- 
 tinguished author, and which has had 
 a misleading influence, which should 
 be counteracted before further injury 
 results from it, as far as in our 
 power to do it. Reversed, and in 
 junction dissolved." 
 
 4. Cadigan v. Brown. 120 Mass. 
 493, 495. 
 
 5. Aleck v. Jackson, 49 N. J. Eq. 
 507, per Green, V. C: "The com 
 plainant was being subjected to nu- 
 merous law suits by those who had 
 furnished materials and labor in the 
 construction of her house. Her li- 
 ability to these persons arises under 
 the mechanics' lien law, and is lim 
 ited in aggregate amount to what, 
 may be due from her to Jackson. She 
 could not safely pay those claims un- 
 til that amount was ascertained, and 
 her bill as filed presented a clear case 
 of interpleader. Its character as such 
 is changed by the position of Jack- 
 son. I think she is entitled to have 
 the case retained until the amount 
 of her indebtedness to Jackson is as- 
 certained by the trial of his suit at 
 the circuit, and to that end that the 
 injunction be dissolved as to Jack- 
 son's prosecuting that suit, but re- 
 tained as to the other defendants." 
 
 839
 
 Staying Actions and Suits. 
 
 CHAPTER XIX. 
 
 Staying Actions and Suits. 
 
 Section 544a. Jurisdiction to stay actions generally. 
 544b. Same subject — Limitation on power. 
 
 545. Parties not court restrained. 
 
 546. Court's action not ground for injunction. 
 54Ga. Party must come with clean hands. 
 
 547. In cases of fraud — Malice. 
 
 548. Same subject — Accident. 
 
 549. Action enjoined on ground of mistake. 
 
 550. Enjoining actions on fraudulent instruments, etc. 
 
 551. Knjoining actions on notes. 
 
 552. Action at law not enjoined at instance of third persona. 
 
 553. Statutory requisites — Jurisdiction — Damages. 
 
 554. Action at law not enjoined unless shown to be necessary. 
 
 555. No injunction where there is remedy by appeal. 
 
 556. Same subject — Where no jurisdiction. 
 657. No injunction where remedy by certiorari. 
 
 558. The effect of enjoining action at law. 
 
 558a. To protect persons acting under orders of court. 
 
 559. Enjoining actions against receivers. 
 
 560. As to arbitrators and awards. 
 
 561. As against garnishees. 
 
 562. Protecting surety where creditor has collaterals. 
 
 563. Enjoining attachments of property of insolvent. 
 
 564. Interpleader and injunction. 
 
 565. Same subject. 
 
 566. Enjoining action at law in case of set-off. 
 
 567. Enjoining action \Vhere creditor agreed to release claim. 
 
 568. Same subject. 
 
 569. Actions barred by statute of limitations. 
 
 570. Same subject. 
 
 571. In cases of res ad judicata. 
 
 572. Same subject — Equitable estoppels. 
 
 573. Restraining the enforcement of void ordinances. 
 
 574. Criminal proceedings not enjoined. 
 
 575. Enjoining fraudulent defenses. 
 
 576. Same subject — Enjoining married woman. 
 576a. Where adequate remedy at law. 
 
 577. Defensible action at law not enjoined. 
 
 578. Same subject — Court's discretion. 
 
 579. Same subject — Summary proceedings. 
 
 840
 
 Staying Actions and Suits. § 544a 
 
 Section 580. Same subject — Mandamus proceedings. 
 
 581. Enjoining condemnation proceedings. 
 
 582. Same subject — Where injunction proper. 
 
 583. Enjoining defensible actions at law — Qualification of rule. 
 
 584. Partition suits. 
 
 585. Same subject — Concurrent jurisdiction. 
 
 586. Enjoining action of ejectment — Reforming deed — Where vested 
 
 remainder. 
 
 587. Enjoining ejectment of a possessor under contract of sale. 
 
 588. Ejectment of tenant when enjoined. 
 
 589. Restraining action in ejectment for laches. 
 
 590. When ejectment not enjoined for mistake. 
 
 591. When action of trespass will not be enjoined. 
 
 592. Action for forcible entry — Rules as to enjoining. 
 
 593. Enjoining foreclosure of mortgage. 
 
 594. Same subject — Set-off against mortgage. 
 
 595. Enjoining action at law by mortgage after mortgage debt i» 
 
 paid. 
 
 596. Action at law for breach of covenants in deed. 
 
 597. Priority of suits. 
 
 598. Same subject. 
 
 599. Where jurisdiction is concurrent. 
 
 600. Federal injunctions against proceedings iu State courts. 
 
 601. Same subjects — Enjoining administrators. 
 
 601a. Injunctions in State courts against proceedings in Federal 
 courts. 
 
 602. Enjoining further proceedings in State court in case of re- 
 
 moval. 
 602a. Where tribunal has exclusive jurisdiction. 
 
 603. Enjoining equity action in same court. 
 
 604. Same subject. 
 
 605. Action not enjoined because of foreign suit. 
 
 606. Enjoining proceedings in another State. 
 
 606a. Same subject — Suit in one State to evade laws of another 
 
 State. 
 606b. Enjoining appeals. 
 
 607. In cases of usury. 
 
 Section 544a. Jurisdiction to stay actions generally. — When a 
 
 court of equity assumes jurisdiction of a controversy between the 
 parties it has full and complete jurisdiction and may render a 
 final judgment in relation to all matters involved in and growing 
 out of that controversy and may restrain the prosecution of other 
 suits which involve a determination of the same matters in dispute 
 as in the proceeding before it until a final judgment has been 
 
 841
 
 § 544a Stayixg Actions and Suits. 
 
 rendered. 1 The power of a court of equity to exercise this juris- 
 diction is exerted when necessary to prevent injustice, to avoid 
 multiplicity of actions, and to prevent interference where, the 
 jurisdiction of equity has once attached when interference would 
 render the jurisdiction ineffectual. 2 In New York it is decided 
 that the jurisdiction of a court of equity to restrain proceedings 
 at law, in cases where the exercise of this jurisdiction is essential 
 to the complete administration of justice, and the proper security 
 of the rights of the litigants, has been devolved upon the Supreme 
 Court under its present organization, and has not been abrogated, 
 or abridged, in any of its essential features, by the union of the 
 two jurisdictions in law and equity, in a single tribunal. 3 So 
 injunction may sometimes be sought to restrain a suit at law 
 where the latter only involves a portion of the controversy or is 
 likely to leave an apparent record title clouding the legal title in 
 issue. 4 And if a final and complete determination of the rights 
 involved cannot be had in a court of law the action therein may be 
 enjoined if such a determination can be reached in a court of 
 equity. 5 Again, while it is the settled rule that bills in equity 
 must be brought in a county where one of the defendants against 
 whom substantial relief is prayed, resides, this rule does not apply 
 to bills for injunction ancillary to suits at law. In such cases the 
 court of equity of the county where the suit is pending has juris- 
 diction to enjoin the suit at law, and also to grant relief, as to all. 
 matters involved in a proper settlement of the litigation pending 
 at law. 6 And in a recent case in New Jersey it is decided that 
 where an application for a preliminary injunction restraining a 
 suit at law is based upon the claim that the subject matter of the 
 action at law has been under the consideration of the chancery 
 
 1. Maloney v. King, 30 Mont. 414, 4. Shaw v. Chambers. 48 Mich. 
 76 Pac. 939. See, also, Watkins v.' 355, 12 N. W. 486. 
 
 Tallahassee Falls Mfg. Co. (Ala. 5. Watkins v. Tallahassee Falls 
 
 1905), 38 So. 756. Mfg. Co. (Ala. 1905), 38 So. 756. 
 
 2. Fielding v. Lucas, 87 N. Y. 197. 6. Clark v. Beall, 39 Ga. 533. See 
 
 3. Fielding v. Lucas, 87 N. Y. 197. Hayes v. O'Brien, 149 111. 403. 37 N. 
 Per Andrews, J., citing Erie Ry. Co. E. 73, 23 L. R. A. 555: Davison v. 
 v. Ramsey, 45 N. Y. 637. Hough, 165 Mo. 561, 65 S. W. 731. 
 
 842
 
 Staying Actions and Suits. §§ 544b, 545 
 
 court and the same issues determined against the defendant, the 
 complainant is entitled to the relief sought. 7 
 
 § 544b. Same subject; limitation on power. — A court of equity 
 cannot, it is decided, restrain by injunction a party to a cause in 
 another jurisdiction, at the instance of the opposing party, from 
 having the court to proceed to final adjudication in the absence 
 of some special equity not cognizable by the court trying the 
 cause. 8 And where a petition for an injunction merely traverses 
 allegations of fact which are alleged in the declaration in the action 
 at law, a sufficient ground for an injunction against the latter 
 action is not shown. 9 And in a case in New York it is said that 
 for one court to restrain proceedings in another court of equal, 
 dignity already possessed of a litigation, is a high exercise of 
 authority, and will seldom be done where the first court has means 
 to render full justice between the parties. 10 And in other cases it 
 is declared that the jurisdiction of a court of equity by action to 
 restrain proceedings in actions pending in courts of law should be 
 sparingly exercised and only when other remedies are inadequate 
 and the equities invoking its jurisdiction are apparent and strong. 11 
 And a change of venue should be obtained by motion in the action 
 rather than by an injunction in another action. 12 
 
 § 545. Parties, not court, restrained. — An injunction staying 
 proceedings at law operates in restraint of the party and is in no 
 sense a prohibition upon the action of the legal tribunal and a 
 judgment of such court is not void because of the disobedience of 
 
 7. Logan v. Flattan (N. J. 1907), (N. Y.) 612; Savage v. Allen, 54 N. 
 67 Atl. 1007. Y. 458, 463. 
 
 8. Birmingham Ry. & E. Co. v. 11. Norfolk & New Brunswick H. 
 Birmingham Tract Co., 121 Ala. 475, Co. v. Arnold, 143 N. Y. 265, 38 N. 
 25 So. 777. E. 271, cited in Kerngood v. Pond, 84 
 
 9. Gray v. Chicago, M. & St. P. App. Div. (N. Y.) 227, 82 N. Y. 
 Ry. Co., 140 Fed. 337. See Mclnnes Supp. 723. See Gould v. Edison Elec 
 v. Mclnnes Brick Mfg. Co. (N. J. Ilium. Co., 26 Misc. R. (N. Y.) 64, 58 
 Ch.), 38 Atl. 182. N. Y. Supp. 465. 
 
 10. Von Prochazka v. Von Pro- 12. Reis v. Graham, 122 App. Div. 
 chazka, 3 N. Y. Supp. 301. Per Pratt, (N. Y.) 312 ? 106 N. Y. Supp. 645. 
 J., citing Grant v. Quick, 5 Sandf. 
 
 843
 
 § 545 Staying Actions and Suits. 
 
 such injunction. 13 And an injunction against an action upon a 
 judgment obtained in another State does not involve a denial of 
 the authority of the court which rendered it, or of the legality of 
 its action, but is strictly in personam to restrain the party who 
 obtains it from using it unconsciously," the invariable rule being 
 that an injunction to restrain an action at law is directed to 
 the parties, and not to the court in which the action is pending. 1 ' 
 So it is said in a recent case that in the exercise of the power to 
 restrain a person from bringing a suit in a foreign State the courts 
 do not pretend to direct or control the foreign court, but the decree 
 acts solely on the party and that the jurisdiction rests on the 
 authority vested in courts of equity over persons within the limits 
 of their jurisdiction and amenable to process to stay acts contrary 
 to equity and good conscience. 16 And an injunction granted at 
 the instance of a private person, restraining a judge duly com- 
 missioned from discharging his judicial functions, is unwarranted 
 and void. 17 An injunction restraining the plaintiff, in an action 
 at law, from further prosecution of it, does not take away the juris- 
 diction of the law court to try the action, and the judgment ren- 
 dered therein will not be void because of the injunction. 18 An 
 application by a party or privy to a suit or proceeding in chancery 
 
 13. Geddis v. Donovan (Mich. sphere, and cannot be restrained in 
 1908), 114 N. W. 874. Per Hooker, J. the discharge of his functions by the 
 
 14. Stanton v. Embry, 46 Conn. fiat of a brother judge. The suitors 
 <55. of his court may be restrained in 
 
 15. Tyler v. Hamersley, 44 Conn. proper cases from proceeding before 
 419, 26 Am. Rep. 479; Mors v. La- him, but no such process can run 
 denburg, 178 Mass. 272, 59 N. E. against him." 
 
 676; Erie R. Co. v. Ramsey, 45 N. 18. Piatt v. Woodruff, 61 N. Y. 
 
 Y. 628, 649; Sanders v. Metcalf, 1 379, per Gray, C: "While the com- 
 
 Tenn. Ch. 419. mon law and equity courts were sep- 
 
 16. Royal League v. Kavanagh, arate tribunals in this State, a court 
 233 111. 175, 84 N. E. 178. Per of law did not hold a party to a suit 
 Dunn, J. pending in it who should proceed in 
 
 17. Sanders v. Metcalf, 1 Tenn. his suit in violation of an injunc- 
 Ch. 419, per Cooper, Ch.: "That the tion of a court of chancery as even 
 judge of another court should have irregular in his practice, but left 
 the power to issue an injunction, him to the sufficient power of that 
 cannot be conceded for a moment. court to vindicate its own authority. 
 Each judge is supreme in his own Grazebrook v. McCreedie, 9 Wend. 
 
 844
 
 Staying Actions and Suits. §§ 546, 546a 
 
 for an order to stay the proceedings against him, on the ground 
 that it is inequitable to proceed, must be made directly to the court 
 itself in that suit or matter; and he is not authorized to obtain a 
 stay of such proceedings by a preliminary injunction allowed by 
 an officer of court, upon a bill filed for that purpose. 19 
 
 § 546. Court's action not ground for injunction. — An action 
 at law will not be enjoined because of the refusal of the court to 
 postpone the trial, for that is a matter in the discretion of the law 
 court, with which a court of equity will not interfere. 20 Nor will 
 an action be enjoined because of the court's refusal to grant a new 
 trial, nor because arbitrators would not give a party an opportunity 
 to impeach his opponent's witness, of the object of whose evidence 
 he knew beforehand. 21 And an action at law will not be restrained 
 because of laches, if it be commenced within the period allowed 
 by the statute of limitations. 22 And courts in granting injunctions 
 cannot proceed upon the theory that other courts or judges will 
 act erroneously or exercise their discretion, when that is appealed 
 to, ill-advisedly or improperly. Therefore, a court will not grant, 
 an injunction restraining a person in a pending suit from obtain- 
 ing an injunction against the complainant in that suit where the 
 only ground for the granting of such injunction is that the writ 
 of injunction in the other case may be improperly issued upon a 
 state of facts which do not warrant its issuance. 23 
 
 § 546a. Party must come with clean hands. — The general 
 
 437, 442. And now that law and 19. Ellsworth v. Cook, 8 Paige 
 
 equity are separately administered by (N. Y.), 643; Dyckman v. Kerno- 
 
 the same tribunal, each judge having chan, 2 Paige (N. Y.), 26. 
 
 equal power as well to grant as to 20. Hamilton v. Dobbs, 19 N. J. 
 
 vacate an injunction order, it does Eq. 227. 
 
 not follow that a judge holding a 21. Woodworth v. Van Buskerk, 1 
 
 purely law court is divested of his Johns. Ch. (N. Y.) 432. 
 
 jurisdiction to proceed in an action 22. Clark v. Clapp, 14 R. I. 248. 
 
 pending in it, because of an order And see Concord City v. Norton, 16 
 
 made by another judge of the same Fed. 477. 
 
 court in the exercise of his equity 23. Robertson v. Montgomery 
 
 powers, forbidding a party in a law Baseball Ass'n, 141 Ala. 348, 37 So. 
 
 suit from further prosecuting his ac- 388. 
 
 tion." 
 
 845
 
 § 547 Staying Actions and Suits. 
 
 principle that he who comes into equity must come with clean 
 hands applies to those cases where a party seeks to enjoin the 
 prosecution of a suit at law. Protection will not be given to one 
 where the situation results from his own fraud and wrong com- 
 mitted against the one who is attacking that fraud and wrong, 
 and whose efforts to that end it is sought to forestall. 24 
 
 § 547. In cases of fraud ; malice. — A court of equity will inter- 
 fere to restrain the use of an advantage gained in a court of ordi- 
 nary jurisdiction, which must necessarily make that court an 
 instrument of injustice, in all cases where such advantage has been 
 gained by the fraud, accident or mistake of the opposite party. 25 
 But though courts of equity and of law have concurrent jurisdic- 
 tion in cases of fraud, yet if a suit be first brought in a court of 
 law in which the question of fraud may be tried and determined, 
 the party injured by the fraud must make his defense there, and if 
 he neglects to do so, equity will not relieve him by injunction. 26 
 The general principle has been applied where an administrator 
 obtained a judgment in another jurisdiction without intentional 
 fraud, but which it would have been a fraud for the intestate to 
 take, if living, by reason of a special agreement with the defend- 
 ants, in view of which they acted in the suit. 27 But an action will 
 not be restrained, on the ground that it is brought with a malicious 
 
 24. Chesapeake Guano Co. t. Coal Co. v. Ryon, 188 Pa. St. 138, 
 Montgomery, 116 Ala. 384, 22 So. 41 Atl. 402. 
 
 497 ; Reeves v. Cooper, 12 N. J. Eq. 26. Ileden v. Garden, 7 Leigh 
 
 223. (Va.), 157. 
 
 25. Connecticut. — Stanton v. Em- 27. Stanton v. Emhry, 46 Conn, 
 bry, 46 Conn. 595; Pierce v. Olney, 595; Pearce v. Olney, 20 Conn. 544. 
 20 Conn. 544. In Weed v. Grant, 30 Conn. 74, H., 
 
 Massachusetts. — Tompson v. Na- having indorsed his guaranty on a 
 
 tional Bank of Redemption, 106 note, B. & Co. died, and the note was 
 
 Mass. 128. presented against his estate, and al- 
 
 New Jersey. — Acquackanonk Wa- lowed by the commissioners, hut be- 
 
 ter Co. v. Manhattan Life Ins. Co., fore they had returned their report 
 
 36 N. J. Eq. 586. to the Probate Court the creditor 
 
 tfew York. — Dinsmore v. Neres- took a new note from the individual 
 
 heimer, 32 Hun (N. Y.), 204. members of B. & Co. and gave up the 
 
 Pennsylvania. — Natalie Anthracite old note. The commissioners, not 
 
 840
 
 Staying Actions and Suits. §§ 548, 54U 
 
 motive, as the law does not inquire into the motives which lead a 
 man to do what he has the right to do. 28 
 
 § 548. Same subject; accident. — To entitle a defendant to an 
 injunction to restrain the prosecution of an action at law, he must 
 show by the averments of his bill, not only that he has a valid 
 defense, but also that it is such that he cannot fully avail himself 
 of it in the action at law, or if it is a legal defense that he is 
 prevented from making it at law by fraud, accident, or some ad- 
 ventitious cause unmixed with laches or negligence on his part."' 8 
 Injunctive relief against an injury resulting from accident, is an 
 ancient branch of equity jurisdiction. Thus, the loss of a con- 
 veyance in a chain of title, without negligence or misconduct on 
 the part of complainant, has been held to entitle him to an injunc- 
 tion to restrain proceedings at law to deprive him of possession. 38 
 And the loss, at a trial, of a written agreement, without which the 
 maker of a note could not establish his defense to an action on the 
 note, has been held to entitle him to an injunction against the 
 judgment. 31 
 
 § 549. Action enjoined on ground of mistake. — Where the 
 trustees of a religious corporation gave a bond secured by a mort- 
 gage on the corporate property, and which, in strict legal effect, 
 bound them individually, a court of equity will enjoin an action 
 
 knowing this, reported the claim as tion against the acceptor of a draft 
 
 allowed by them, and the administra- was enjoined because of an utter 
 
 tors, in like ignorance, allowed the failure of consideration, 
 
 time for appealing from the report to 28. Clark v. Clapp, 14 R. I. 248. 
 
 pass by; afterwards, on learning the 29. Evans v. Taylor, 28 W. Va. 
 
 facts, they refused to pay the claim, 184, 187; Shields v. McClung, 6 W. 
 
 and the creditors sued them on the Va. 79; Meem v. Rucker, 10 Gratt. 
 
 probate bond to recover the amount, (Va.) 506. 
 
 but was enjoined from prosecuting 30. Butch v. Lash, 4 Iowa, 215. 
 
 the suit, for, as Ellsworth, J., said: 31. Vathir v. Zane, 6 Gratt. (Va.) 
 
 "Of all men, he knew what had been 246. See, also, Wilson v. Davis, 1 
 
 done, and on every principle of jus- Marshall, 219. When the judgment 
 
 tice and honor, he cannot be per- complained of has not resulted from 
 
 mitted after the note has been paid unavoidable accident, but from de- 
 
 and canceled, to resist this applica- fendant's own negligence or omission 
 
 tion for relief." See, also, Ferguson to properly make his defense, he will 
 
 t. Fiflk, 28 Conn. 501, where an ac- not be relieved from it by injunction. 
 
 847
 
 §550 
 
 Staying Actions and Suits. 
 
 at law against them thereon, if it appears that they did not intend 
 to become personally liable. 32 And in a similar case, a suit on an 
 indemnity bond was enjoined on its appearing that the obligor 
 supposed he was signing a recognizance. 33 But an ejectment suit 
 cannot be enjoined in favor of one who has innocently encroached 
 by mistake. 34 And, where a bill filed in the court below, contains 
 no charges of fraud, but merely alleges certain mistakes and 
 omissions of facts in the bill of exceptions, there is no ground for 
 enjoining the prosecution of the writ of error. 35 
 
 § 550. Enjoining actions on fraudulent instruments, etc — 
 Courts of equity have a well established jurisdiction to cancel and 
 set aside written instruments on the ground of fraud in their pro- 
 curement ; 36 and in such cases an incidental and necessary part of 
 the remedy in equity is the power to control and restrain any 
 action at law which has been brought to enforce the fraudulent 
 
 ,32. Maps v. Cooper, 39 N. J. Eq. 
 316. 
 
 3,3. Field v. Cory, 7 N. J. Eq. 574. 
 Where F. was induced by the repre- 
 sentations of R. that he had discov- 
 ered a valuable coal mine on the bank 
 of the Ohio river, to enter into a con- 
 tract for the purchase of a tract of 
 land, stated by R. to embrace the 
 mine; and besides paying to R. 
 $4,400, F. covenanted to pay him 
 $1,000 annually, for twenty years; 
 but which annuity was to cease, if, 
 after the mine was faithfully worked 
 by F., it should not produce at least 
 12,000 chaldrons, etc., and the land 
 was accordingly conveyed by R. to 
 F. It appearing that there was, in 
 fact, no coal mine within the bound- 
 aries of the land conveyed, though 
 there was coal adjoining it, in the 
 bed of the river, which was navig- 
 able, deep, and rapid; but the work- 
 ing of the mine, if practicable, would 
 be very hazardous, expensive and un- 
 
 profitable; the contract, on the part 
 of F., was held to be founded in mis- 
 take and misrepresentation; and R. 
 was perpetually enjoined by Chan- 
 cellor Kent from bringing any suit 
 against F. to recover the annuity so 
 agreed to be paid by him. Dale v. 
 Roosevelt, 5 Johns. Ch. (N. Y.) 174. 
 
 34. Kirchner v. Miller, 39 N. J. 
 Eq. 355. As to what mistake will be 
 a ground for restraining an eject- 
 ment suit, see Bush v. Hicks, 60 N. 
 Y. 298. 
 
 35. Ford v. Weir, 24 Miss. 563. 
 See Kohn v. Lovett, 43 Ga. 179, 
 where the enforcement Of a judgment 
 was restrained because the certify- 
 ing judge, without fault of counsel, 
 dismissed by mistake a meritorious 
 bill of exceptions. 
 
 ,36. Pettit v. Shepherd, 5 Paige 
 (N. Y.), 493; Hamilton v. Cum- 
 minga, 1 Johns. Ch. (N. Y.) 520, 
 524. 
 
 848
 
 Staying Actions and Suits. § 551 
 
 instrument. 37 Where, on a bill to restrain proceedings at law, the 
 question is one of fraud, and the complainant shows that his injury 
 will be irreparable if the fraud prevails, he will not be remitted 
 to a court of law when the question can be better examined in 
 equity, and especially when the proceeding in the law court is of 
 a summary character. 38 And an action to procure the cancellation 
 of a written instrument and to prevent an action at law being 
 brought on it, cannot be maintained unless some special circum- 
 stance exists establishing the necessity of a resort to equity to 
 prevent an injury, which equity alone is competent to avert, and 
 it is not enough that a defense exists as against the instrument or 
 that evidence may be lost. This rule was applied to an action to 
 procure the cancellation of an insurance policy which the com- 
 plaint alleged to have been procured by fraud between plaintiff's 
 agent and the insured, and the complaint also alleging the appre- 
 hension that by collusion with the agent the company would not 
 have an opportunity to defend an action brought on the policy, 
 or that such an action would be delayed until the evidence of fraud 
 and conspiracy should be lost. 39 But in a recent case in Michigan 
 it has been decided that a bill may be maintained to restrain an 
 action on a life insurance policy and praying for its cancellation 
 on the ground that there was fraud in the application and that the 
 insured committed suicide. 40 But it is held that an action of 
 ejectment will not be enjoined on the ground of a fraudulent alter- 
 ation in the deed under which the plaintiff claims and of the record 
 thereof. 41 
 
 § 551. Enjoining actions on notes. — An injunction will issue 
 to restrain the collection of notes included in a settlement of ac- 
 counts previously had between the parties, but will be dissolved 
 
 37. Becker v. Church, 115 N. Y. 39. Globe Life Ins. Co. v. Reals, 
 562, 22 N. E. 748. 79 N. Y. 202. And see Fowler v. 
 
 38. Henwood v. Jarvis, 27 N. J. Palmer, 62 N. Y. 533. 
 
 Eq. 247. And see Forrester v. Wil- 40. Fidelity Mut. L. I. Co. v. 
 
 son, 1 Duer, 624; Duigan v. Hogan, Blain, 144 Mich. 218, 107 N. W. 877. 
 
 1 Bosw. 645; Bean v. Pettingill, 2 41. Wilson v. Miller (Ala. 1905), 
 
 Abb. Pr. (N. S.) 58. 39 So. 178. 
 
 849 
 54
 
 §551 
 
 Staying Actions and Suits. 
 
 on a failure to show that the notes were so included. 42 And it is 
 held that an action against an endorser of a note may be enjoined 
 where the making of the endorsement was a mistake of fact. 43 And 
 whore a court of equity may decree a note which is void for want of 
 consideration to be delivered up to be canceled, it may perpetually 
 enjoin an action at law to be brought to enforce it. 44 But an act >n 
 on a note exchanged for another will not be enjoined for failure 
 of consideration, since the one promise is a good consideration 
 for the other. 45 Nor on the ground that the maker was insolvent 
 at the time the suit on the note was instituted. 40 And an injunc- 
 tion will not be granted to restrain threatened actions at law on 
 promissory notes, where the defense claimed thereto is a defenso 
 at law, nor where reciprocal demands exist between the parties, 
 which may be offset or counterclaimed, 47 for in such a case the 
 plaintiff in the action at law has a constitutional right to a triid 
 by jury, of which he is to be deprived only in very exceptional 
 
 42. Melcher v. Exchange Bank, 
 85 Mo. 3G2. 
 
 43. King v. Hart, 110 III. App. 
 33. Compare Bryan v. Windsor, 99 
 Ga. 176, 25 S. E. 2G8. 
 
 44. Metier v. Metier, 18 N. J. Eq. 
 270, per Chancellor: "In caaea 
 where the instrument in on its face 
 valid, and especially if negotiable, 
 the jurisdiction of the court is 
 founded upon the principle adopted 
 in other cases in bills quia limct, 
 and is now settled by authority." 
 iSee, also, Bryan v. Windsor, 99 Ga. 
 176, 25 S. E. 268; Minshaw v. Jor- 
 dan, 3 Brown, Ch. 17; Newman v. 
 Milner, 2 Ves. 483; Bromley v. Hol- 
 land, 7 Ves. 3; Jarvis v. White, 7 
 Ves. 413; Jackman v. Mitchell, 13 
 Ves. 581 ; Wynne v. Callander, 1 
 Russ. 293; Peirsoll v. Elliott, Pet. 
 (U. S.) 95, 8 L. Ed. 332; Hamilton 
 t. Cummings. 1 Johns. Ch. (N. Y.) 
 520. Compare House v. Oliver, 123 
 Ga. 784, 51 S. E. 722. 
 
 45. Gilbert v. Duncan, 29 N. J. 
 L. 145, 529; Cameron v. Chappell, 
 
 24 Wend. (N. V.) 94; Davis v. Me- 
 I toady, 17 X. V. 232. 
 
 46. Savage v. Ball. 17 N. J. Eq. 
 142. 
 
 47. American Water-Works Co. v. 
 Venner, 83 Hun (N. Y.), 632, 18 \ 
 Y. Supp. 379. 
 
 Where one of the complain- 
 ants, who were partners, gave hit 
 individual notes to a firm debtor, fo? 
 payments to him individually made 
 by the latter, who claimed that he 
 owed the firm nothing, under an ar 
 rangement whereby the notes wer^ 
 to be held by the debtor against the 
 individual partner in case, on final 
 settlement, nothing was found due 
 by him to the firm, it was held, thai 
 the firm could not enjoin a third per- 
 son, who held the notes, from bring 
 ing an action thereon, as the firm's 
 remedy was at law by way of set-off. 
 and there was uo mutuality of con 
 tract between the parties to such 
 suit. Dewey v. Billings, 76 Mich 
 89 ; 42 N. W. 1077. 
 
 850
 
 Staying Actions and Suits. §§ 552, 553 
 
 cases. 48 And proceedings at law upon a note in the hands of a 
 holder in good faith and for a valuable consideration will not be 
 enjoined on the ground of fraudulent representations made by 
 the payee to the maker/ 9 
 
 § 552. Action at law not enjoined at instance of third persons. 
 — Where both parties to an action at law are content with the 
 jurisdiction, and desire it to proceed, a court of equity will not 
 ordinarily enjoin it at the instance of third persons, as, if it 
 should result in a collusive judgment, such judgment will be as- 
 sailable whenever it may come into conflict with the rights of third 
 persons. 50 So a court of equity has no jurisdiction to enjoin pro- 
 ceedings on a mandamus where the parties seeking redress by such 
 proceedings are not the plaintiffs in equity. 51 And a stay of pro- 
 ceedings in one action until the determination of another pending 
 in another court will not be granted when the party against whom 
 the stay is sought is neither a party or privy to such other action, 
 and will not be bound by an adjudication therein. 52 
 
 § 553. Statutory requisites ; jurisdiction ; damages. — In Vir- 
 ginia it has been decided that under the Code an injunction to any 
 judgment or proceeding must be applied for in the county in 
 which the judgment is rendered, or the proceeding is taking place. 
 
 48. Allerton v. Belden, 49 N. Y. be enjoined at the instance of third 
 373; Fowler v. Palmer, 62 N. Y. 533. persons without very imperative rea- 
 
 49. Dougherty v. Scudder, 17 N. sons. . . . The apprehended judg- 
 J. Eq. 248. ments at law will, if collusive, be 
 
 50. Smith v. Cuyler, 78 Ga. 654, harmless to these complainants, be- 
 3 S. E. 406, per Bleckley, C. J.: cause if collusive they can be at- 
 " To carry on such litigation is to tached everywhere." 
 
 play a sort of comedy, but we cannot See, also, Campbell v. Bush, 112 
 
 permit these new parties to inter- Ga., 737, 38 S. E. 50; Aaron v. 
 
 vene and convert it into a tragedy. Baum, 30 N. Y. Super. Ct. (7 Rob.) 
 
 Let the wife plaintiff and the hus- 340. 
 
 band defendant coquette at will. 51. Finegan v. City of Fernandina, 
 
 There is nothing serious in the out- 18 Fla. 127. 
 
 come and it should abide the gen- 52. Dolbeer v. Stout, 139 N. Y. 
 
 eral rule, that where both parties de- 486, 34 N. E. 1102. 
 
 sire the action to proceed it will not 
 
 851
 
 $554 Staying A< rroNa turn Sura. 
 
 Thus, an injunction granted to enjoin condemnation proceedings 
 instituted in another county, was dissolved. 53 In New Jersey it 
 has been decided that a provision of the chancery act is peremp- 
 tory, and prohibits the issuing of an injunction to restrain legal 
 proceedings, alter verdict or judgment, at the instance of defend- 
 ant therein, unless the money be paid into court, or a bond given 
 according to the statutory requirement, and a temporary injunc- 
 tion is within this statutory prohibition. 54 In Mississippi a Code 
 provision that five per cent, damages shall be allowed on the dis- 
 solution of an injunction "to stay sales under deeds of trust or 
 mortgages with power of sale," is held not to authorize the allow- 
 ance of such damages on the dissolution of an injunction to restrain 
 the confirmation of the sale of land made under a decree of fore- 
 closure of a trust deed, as the provision has reference only to an 
 injunction against the exercise of the power of sale by the donee 
 of the power proceeding in pais. 55 
 
 § 554. Action at law not enjoined unless shown to be neces- 
 sary. — Where the complaint, filed to have a deed absolute in form 
 declared a mortgage, and to enjoin, pending the decision, an action 
 at law for possession of the premises, does not show that plaintiff 
 cannot, without the injunction, obtain full redress for any wrong 
 he may suffer from the action, or that the injunction is necessary 
 for his protection in the event of his success in the suit, it is 
 proper to dissolve the preliminary injunction on the presentation 
 of a sworn answer denying the allegations of the complaint. 58 And 
 
 5,3. Norfolk & W. R. Co. v. Postal Marlatt v. Perrine, 17 N. J. Eq. 49." 
 
 Tel. Co., 88 Va. 932, 14 S. E. 689. 55. Fox v. Miller, 7 Miss. 598, 14 
 
 54. Phillips v. Pullen, 45 N. J. Eq. So. 145. 
 
 157, 16 Atl. 915, per Beasley, C. J.: 56. Weems v. Roberts, 96 Ala. 378, 
 
 "As long ago as the year 1834, 11 So. 434. And see Harrison v. 
 
 Vroom. Ch., declared the provision Yerby, 87 Ala. 185, 6 So. 3. A court 
 
 was peremptory, and enforced it in of equity will not entertain a suit to 
 
 that sense. Morris Canal Co. v. Bart- enjoin common-law proceedings which 
 
 lett, 3 N. J. Eq. 9; and thirty years are void for want of jurisdiction in 
 
 after, Greene, Ch., pursued the same the common-law tribunal before which 
 
 course, saying, ' There is no authority they are being prosecuted, the injured 
 
 to issue an injunction, except the party having an adequate remedy at 
 
 terms prescribed by the statute.' law, in trespass against the wrong- 
 
 852
 
 Staying Actions and Suits. 
 
 555 
 
 a party cannot be enjoined from prosecuting an action at law, on 
 the ground that it is trifling or without merits; 57 or unless the 
 party applying for the injunction shows that he will be appreciably 
 injured by the action which he seeks to restrain. 58 But a legal 
 remedy which a party is compelled to go into a foreign jurisdiction 
 in order to avail himself of, is not to be regarded as an adequate 
 legal remedy so as to deprive domestic courts of the power of 
 affording injunctive relief. 59 
 
 § 555. No injunction where there is remedy by appeal.— It is 
 
 a general rule that where a party has an adequate remedy by ap- 
 peal an injunction will not be granted. 60 So a referee to take testi- 
 mony will not be enjoined from acting, on the ground that his 
 
 doer. St. Louis T. M. & S. Ry. Co. v. 
 Reynolds, 89 Mo. 140, 1 S. W. 208. 
 See, also, Sayre v. Tompkins, 23 Mo. 
 443; Deane v. Todd, 22 Mo. 90; First 
 Nat. Bank v. Meredith, 44 Mo. 500. 
 
 See §§ 305-J06 herein as to dissolv- 
 ing injunction on coming in of an- 
 swer. 
 
 57. Butchers Benev. Assoc, v. Cut- 
 ler, 26 La. Ann. 500. 
 
 58. Lambert v. Lambert, 5 Ir. Eq. 
 
 339. 
 
 59. Stanton v. Embry, 46 Conn. 
 
 595. 
 
 60. Arkansas.— Hart v. The Life 
 Association, 54 Ala. 495. 
 
 Arkansas.— Shaul v. Duprey, 48 
 Ark. 331. 
 
 Illinois.— Palmer v. Gardner, 77 
 111. 143. 
 
 Indiana.— Sims v. City of Frank- 
 fort, 79 Ind. 446. 
 
 Iwoa.— Kinney v. Howard (Iowa, 
 1907), HO N. W. 282. 
 
 Louisiana. — Chaffe v. Du Bose, 36 
 La. Ann. 257. 
 
 Neic York.— Wright v. Fleming, 12 
 Hun, 469; Wordsworth v. Lyon, 5 
 How. Prac. 463. 
 
 Pennsylvania. — Appeal of Brour, 66 
 
 Pa. St. 155; Wolf v. Scheiffer, 2 
 Brewst. 563. 
 
 Texas. — Manning v. Hunt, 36 Tex. 
 118. 
 
 See also § 23 herein. 
 Where effect of appeal is to 
 vacate judgment. — A person 
 brought an action before a justice in 
 West Virginia, against one Evans, 
 and final judgment was rendered for 
 defendant, and while it remained in 
 full force, the plaintiff assigned his 
 claim to a person in Ohio, who sued 
 on it before a justice there, and re- 
 covered judgment; the Ohio plain- 
 tiff then assigned his judgment, pend- 
 ing an appeal from it to the Court of 
 Common Pleas in Ohio, to a person in 
 West Virginia, who again sued Evans 
 on the judgment. It was held that 
 Evans was not entitled to an injunc- 
 tion to restrain the action on the 
 judgment, because the effect of the 
 appeal from the Ohio justice's judg- 
 ment to the Court of Common Pleas 
 there was not merely to suspend it, 
 but wholly to vacate it, and this was 
 a valid defense in the action at law 
 on the judgment. Evans v. Taylor, 28 
 W. Va. 184, per Snyder, J.: " In the 
 
 S53
 
 § 558 
 
 Staying Actions and Surra. 
 
 appointment was not authorized, as there is an adequate remedy 
 bj appeal. 61 And an action will not be enjoined because of tho 
 improper exclusion of evidence therein, since the proper remedy 
 in such case is by appeal. 62 And summary proceedings will not 
 be enjoined where the rights of parties can be fully protected by 
 appeal or certiorari. 63 And the Supreme Court will not enjoin 
 
 cause at bar the plaintiff's bill not 
 only shows that he had a good legal 
 defense at law to the claim asserted 
 against him, but that such defense 
 may still l><' made available by him 
 at law. The action, which he 9ceks 
 to enjoin in this suit, he alleges, is 
 founded upon the judgment of a jus- 
 tice of the State of Ohio, which has 
 been appealed from, and stands upon 
 an appeal in the Court of Common 
 Pleas of Belmont county, in said 
 State. According to the laws of the 
 State of Ohio, the effect of an appeal 
 from the judgment of a justice is to 
 stay all further proceedings on the 
 judgment before the justice. . . 
 An appeal in such a case i9 very dif- 
 ferent in its etl'ect from a proceeding 
 which seeks to review a judgment by 
 writ of error. In the latter case the 
 judgment is merely suspended, but 
 in the former the judgment is va- 
 cated and made ineffectual for any 
 purpose, the judgment in legal con- 
 struction no longer remains in force 
 and cannot be the foundation of a new 
 action. Campbell v. Howard, 5 Mass. 
 37C; Paine v. Cowdin, 17 Pick. 142. 
 . . . If, however, no appeal had 
 been taken from the Ohio judgment, 
 and the plaintiff, Evans, has a valid 
 defense to the claims, on which said 
 judgment was recovered, he would 
 still not be entitled to relief in equity, 
 because by the statutes of the State 
 of Ohio he could have taken such an 
 appeal as a matter of right, which 
 
 would have given him an adeqn il- 
 legal remedy, and if he, by his negli 
 gence, failed to avail himself of such 
 remedy, he i9 for that reason without 
 remedy in a court of equity. It is a 
 moral wrong and in some cases a 
 fraud for any person to resort to the. 
 courts to enforce the payment of an 
 unfounded or unjust claim, but it is 
 not such a wrong or fraud that a 
 court of equity will enjoin. In nearly 
 all contested claims the defendant 
 disputes the justice of the plaintiff's 
 demand. If, therefore, a court of 
 equity could be called upon to inter- 
 fere, and restrain the plaintiff from 
 prosecuting his claim in a court of 
 law, because in the estimation of the 
 defendant such claim was unjust and 
 unfounded, very few cases at law 
 could escape such interference. It is 
 no greater wrong or fraud for a party 
 to sue on a claim that had been ad- 
 judged invalid in a previous suit than 
 it would be for a plaintiff to sue on a 
 claim which ne knew was unjust, or 
 which he knew could be successfully 
 defended." 
 
 61. Shoemaker v. Axtell, 78 Ind. 
 561. 
 
 62. Wright v. Fleming, 12 Hun, 
 469. 
 
 63. Bliss v. Murray, 7 N. Y Supp. 
 917; Armstrong v. Cummings, 20 
 Hun (N. Y.), 313; Jessurun v. 
 Mackie, 24 Hun (N. Y.), 624. 
 
 See § 579 as to enjoining sum- 
 mary proceedings. 
 
 854
 
 Staying Actions and Suits. §§ 556, 557 
 
 the action of the court below as to a matter concerning which, 
 were an appeal bond filed, the court below would be powerless to 
 act, no appeal bond having been filed. 64 
 
 §556. Same subject; where no jurisdiction. — Where a court 
 has no jurisdiction of a matter before it a court of equity will not 
 enjoin the proceedings for in such a case a judgment rendered will 
 be void, as will also an execution issued thereon and in such a case 
 the remedy at law is ample and adequate. 65 So it has been decided 
 that an appeal from the highway commissioners to the supervisors 
 will not be enjoined by a court of equity where it appears both 
 from the facts alleged in the bill and admitted by demurrer there 
 is no jurisdiction in the supervisors as in such a case an order 
 made by them would be void and could be resisted in any proceed- 
 ing. 66 But in New York it has been decided that though there 
 has been much discussion of the question as to what cases injunc- 
 tion will lie to restrain proceedings for forcible entry and detainer 
 under the Code, 67 such provision of the statute does not affect the 
 power of the courts to restrain such proceedings when void for 
 want of jurisdiction. 63 
 
 § 557. No injunction where remedy by certiorari. — It is a 
 general rule that an injunction will not be granted where there is 
 an adequate remedy by certiorari. 69 So where an owner of land 
 condemned for a street, having knowledge of the action of the city 
 council, could have protected his interests by certiorari, and being 
 made a party to the condemnation proceedings, could have defended 
 on the ground that the proceedings were not authorized by the 
 action of the council, he is not entitled to have the opening of the 
 street enjoined for defects in the proceedings of the council. 70 
 
 64. Churchill v. Martin, 65 Tex. 67. Code Civ. Proc, § 2265. 
 
 367. 68. Schneider v. Leizman, 57 Hun 
 
 65. St. Louis, Iron Mt. & S. R. (N. Y.), 561, 11 N. Y Supp. 434. 
 Co. v. Reynolds, 89 Mo. 146, 1 S. 69. See § 29 herein. 
 
 W. 208; Bean v. Pettengill, 30 N. Y. 70. Rockwell v. Bowers, 88 Iowa, 
 
 Super. Ct. (7 Rob.) 7. 88, 55 N. W. 1, per Robinson, C. J.: 
 
 66. Gray v. Jones, 178 111. 169, " It is a well-established rule of law, 
 52 N. E. 941. that courts of equity will not afford 
 
 855
 
 
 Stating A< nova a. 
 
 § 558. The effect of enjoining action at law. — In Tennessee, 
 the better practice was considered to be, that an injunction re- 
 straining an action at law should not be granted, except upon the 
 condition of the defendant's agreeing to confers judgment, or of 
 allowing the plaintiff to proceed to judgment.' 1 Bat, if granted 
 without qualification, an injunction against further proceedings at 
 law, mu3t be literally obeyed. Thus, where pending an appeal 
 
 a party aid, to protect big rights, 
 when the remedy obtainable in tha 
 courts of law is plain, adequate, and 
 speedy. When there is no appeal, or 
 other special means for obtaining re- 
 lief from the acts of an incorporated 
 city or town in laying out, opening, 
 or extending streets, such acts may 
 be reviewed and corrected by cer- 
 tiorari, and courts of equity will not 
 interfere. 2 Dill. Mun. Corp., §§ 
 470, 727, 740. Cities and incorpo- 
 rated towns have power to open, va- 
 cate, and extend and establish streets. 
 Code, § 4G4. It was said in Stuben- 
 rauch v. Neyenesch, 54 Iowa, 567, 7 
 Js. W. 1, that certiorari is a proper 
 remedy to test the right of a city 
 council to vacate a street ; and, in 
 effect, that a court of equity will not 
 interfere to prevent such action, for 
 the reason that the remedy by cer- 
 tiorari is full and complete. The 
 rule of law, as thus announced, is ap- 
 plicable to this case. The plaintiff 
 could have tested the power of the 
 town council to extend the street in 
 question in the manner attempted, by 
 certiorari, and would not have been 
 entitled to an injunction to prevent 
 the adoption of the resolution. It is 
 said, however, that, if the council 
 had no power to open the street by 
 resolution, its act in attempting to 
 do so was void, and imposed no obli- 
 gation upon plaintiff to test it by 
 direct proceedings, and that he re- 
 tained the right to resist the opening 
 
 of the street by an independent ac- 
 tion. In answer to tii.it claim it may 
 be said that appellant knew of the 
 action of the council in due tine, ami 
 could have protected !<i> Intel 
 fully by certiorari proceedii 
 Moreover he was made a party to, 
 and was served with notioe of, 1 1 *• - 
 condemnation proceedings in the Die 
 trict Court, ii those proceeding! 
 were not authorized by the action the 
 council had taken, the fact could 
 have been pleaded and shown in d< 
 fense. It is tun- sections 476, 477. 
 of the Code, under which such pro- 
 ceedings were had, do not, in terms, 
 authorize an injuiry as to the valid- 
 ity of the proceedings; but they do 
 provide for the ascertaining of the 
 compensation to be paid, by a mode 
 of proceedure as in an action at law, 
 so far as applicable, for the settling 
 of the rights of claimants of the 
 property to be condemned, and for 
 the delivery of the possession of the 
 property. It necessarily follows that 
 the rights of the parties to such a 
 proceeding may be asserted therein 
 by suitable pleadings, and settled by 
 a trial, and an order or judgment of 
 the court. See Railway Co. v. Don- 
 nell, 77 Iowa, 221, 42 N. W. 176." 
 
 71. Chadwell v. Jordan, 2 Tenn. 
 Ch. 635 ; Mathews v. Douglass, Cooke 
 (Tenn.), 136; Warwick v. Norvell, 
 1 Leigh, 96; Justice v. Scott, 4 Ired. 
 Eq. (N. C.) 108. 
 
 856
 
 Stayiuo Actions axd Suits. 
 
 §558a 
 
 from a justice's judgment against an administrator, he obtained 
 an injunction restraining the appellee from further prosecuting 
 his suit, hut the appellee proceeded to have justice's judgment 
 affirmed, such judgment was perpetually enjoined on petition. 72 
 And though an action at law be at issue, and ready for trial, the 
 plaintiff who has been enjoined cannot proceed to trial and judg- 
 ment on the ground of saving time and expense. 73 And if a party, 
 who has been enjoined from further prosecuting proceedings at 
 law, violates the injunction, he may be compelled to relinquish 
 all advantage of any proceedings so taken by him subsequent to 
 the services of the injunction. 74 Where an injunction, restraining 
 a suit at law is dissolved, the equity court will leave the parties 
 to proceed at law. 75 
 
 § 558a. To protect persons acting under orders of court. — 
 In an early case in New York the doctrine is affirmed that 
 
 72. Patterson v. Gordon, 3 Tenn. 
 Ch. 18, per Cooper, Ch.: " It is next 
 insisted that the suing out the in- 
 junction under this petition was a re- 
 lease of errors in the judgment at 
 law, which, if I understand the argu- 
 ment, precludes this court from 
 granting the relief asked. Code, § 
 3107; Overton v. Perkins, Mart & Y. 
 368; Henly v. Robertson, 4 Yerg. 
 172. The argument seems to be, that 
 if the judgment was wrongfully ob- 
 tained, the suing out an injunction 
 cures the wrong. But section 3107, 
 of the Code, only releases such errors 
 as might be reached by appellate 
 proceedings to a higher court, and 
 the suing out of the injunction would 
 be a good plea in the Appellate 
 Court, to bar a revision in that court. 
 The object of the act was to prevent 
 proceedings at law and in equity at 
 the same time, touching the same 
 matter. And this end equity had 
 previously attained without statute, 
 by compelling the party who comes 
 
 into chancery for relief, to elect in 
 which court he will proceed. Cocke v. 
 Dotson, 1 Tenn. 169; Cockerell v. 
 Cholmeley, 1 Russ. & M. 418; Webb 
 v. Williams, Walk. Ch. (Mich.) 452. 
 It was never intended to deprive a 
 party who sues out an injunction, of 
 all relief, either at law or in equity. 
 He loses his remedy, if he have any 
 at law, but is entitled to his equit- 
 able relief." 
 
 73. Hutchinson v. Hutchinson, 1 
 Houst. (Del.) 613. 
 
 If proceedings at law against 
 a principal are stayed, they are 
 stayed also against his surety or 
 special bail. Patterson v. Gordon, 3 
 Tenn. Ch. 18; Webster v. Chew, 3 
 Har. & McH. (Md.) 123. 
 
 74. Piatt v. Woodruff, 61 N. Y. 
 378, 382. And see section 281, ante. 
 
 75. Powers v. Ashley, 8 Mo. 299. 
 
 This is the rnle unless a dis- 
 covery is sought for to aid a defense 
 at law. Ham v. Schuyler, 2 Johns. 
 Ch. (N. Y.) 140. 
 
 857
 
 § 559 Staying Actions and Suits. 
 
 wherever the. jurisdiction of the chancery court, the title of its 
 officers, or the validity of its process or its orders is disputed or 
 attempted to be drawn in question, by a suit instituted in another 
 court against those who are acting under the orders or the process 
 of the court of chancery, it is bound to interfere for their protec- 
 tion and to restrain the prosecution of the suit.' 6 And a similar 
 doctrine is asserted in other cases. 77 
 
 § 559. Enjoining actions against receivers. — The court having 
 jurisdiction of a receiver, and the property in his possession, may 
 enjoin an action brought against him without the court's per- 
 mission. So in a recent case in Florida it is decided that where- 
 a receiver is appointed by the judge of one judicial district in a 
 cause pending before him the judge of another judicial district is 
 without authority to grant an injunction order in a cause pending 
 in his circuit restraining the receiver from applying to the judge 
 whose receiver he is for a writ of restitution of possession of real 
 estate or for any other remedial process affecting the property in 
 his custody as receiver. 78 So where land in dispute was in the 
 hands of a receiver, and one of the litigants made an effort to dis- 
 train for rent against another, this was held an interference with 
 the property which was properly enjoined. 79 And where a receiver 
 of a national bank had in his possession bonds pledged to the bank 
 for a debt, and obtained an order from the Federal Circuit Court 
 to sell them, it was held that the court had jurisdiction to enjoin, 
 and would enjoin a citizen of the district from prosecuting a suit 
 in Canada against the receiver to recover the bonds. 80 And where 
 a State court has jurisdiction of the parties, and has appointed a 
 receiver of the property in dispute, it can enjoin creditors from 
 
 76. Mackay v. Blackett, 9 Paige against a party who sues a receiver 
 (N. Y. ) 437. without leave of court, is to punish 
 
 77. Turner v. Breeden. 2 Lea him as in contempt of court. De- 
 (Tenn.), 713; Peck v. Crane, 25 Groot v. Jay. 30 Barb. (N. Y.) 483. 
 ■yt 146 80. Hendee v. Connecticut & Pas- 
 
 78. Ray v. Trice (Fla. 1907), 42 sumpsic Rivers R. R. Co., 23 Blatch. 
 So. 901. 453; 26 Fed. 677. See Central 
 
 79. Marshall v. Lockett, 76 Ga. Trust Co. v. East Tenn. R. Co., 59 
 289. See § 76 ante. Fed. 523. 
 
 The more common remedy 
 
 858
 
 Staying Actions and Suits. § 560 
 
 prosecuting libels against the property in a Federal court. 81 And 
 condemnation proceedings against property in a receiver's hands, 
 may be restrained. 82 Again, where a receiver distrained for rent, 
 and defendant brought an action for trespass, alleging that the 
 receiver had distrained on lands in the possession of defendant, 
 and not those over which he was appointed, the court restrained 
 the action for trespass and granted a reference to the master 
 to determine the injury, if any. 83 But an action against 
 a receiver should not be restrained on the mere ground 
 that a former judgment has disposed of the matters in- 
 volved in the action, but the receiver should be left to 
 set up that as a defense. 84 And where an order appointing a 
 receiver to a corporation restrains all actions against the corpora- 
 tion, a motion by a creditor to vacate the order as to him, so as to 
 enable him to perfect a judgment against the corporation, should 
 not be granted merely on the ground that the corporation bought 
 goods from him when insolvent, without any showing that such 
 creditor was entitled to perfect his judgment in preference to 
 other creditors. 85 As before seen, a court of equity which has 
 appointed a receiver of lands situated in another State or jurisdic- 
 tion, has no power to enjoin a citizen of such jurisdiction from 
 levying an attachment on such lands, unless he is a party, either 
 in person or by representation, to the litigation in which the re- 
 ceiver was appointed. 86 
 
 § 560. As to arbitrators and awards. — An arbitrator may be 
 enjoined from acting in any case in which he is, in the opinion 
 of the court, unfit or incompetent to act. 87 And a court of equity 
 
 81. In re Schuylers Steam Tovr 84. Jay's Case, 6 Abb. Pr. (N. Y.) 
 Boat Co., 136 N. Y. 169.. 32 N. E. 293. 
 
 623. See § 85 ante, for the opinion 85. Carson v. N. Y. Terminal Ex- 
 
 in this case. press Co., 74 Hun (N. Y.), 536, 26 
 
 82. Tink v. Rundle, 10 Beav. 318. N. Y. Supp. 639. 
 
 83. Parr v. Bell, 9 Ir. Eq. 55. And 86. See § 76 ante. 
 
 see Darley v. Nicholson, 2 Dr. & W. 87. Beddow v. Beddow, L. R. 9 Ch. 
 
 86; Mackinnon v. Palmer, 7 Ir. Eq. D. 89, per Jessel, M. R.: "One of 
 
 496; Nugent v. Nugent, 7 Ir. R. Eq. the well-known grounds of incompe- 
 
 519. tence is personal interest. If in the 
 
 859
 
 §500 
 
 JStayim; A< iii-.s AM) Sill.-. 
 
 will enjoin an action at law upon an award of arbitrators upon 
 proof that after the hearing of both parties upon their respective 
 claims one of the arbitrators requested and they all received a 
 written statement from one of the parties quite different from that 
 which had been presented at the hearing, in the absence of tho 
 other party and without his consent, though the arbitrators swear 
 that the statement had no influence on the award and there is no- 
 imputation of fraud upon them; for such conduct on their part is 
 opposed to natural equity and to established practice and to the 
 policy of the law with regard to the administration of justice. 88 
 Again, the rule is well settled that an award cannot be sustained 
 where the arbitrators received the statements of one party or 
 admitted his evidence in the absence of the other party. 89 And 
 where arbitrators chosen to estimate tho quantity of lumber which 
 plaintiff had agreed to sell to defendants, through negligence over- 
 looked a large part of it, the plaintiff's application for an injunc- 
 tion to restrain defendants from further interfering with the 
 lumber and for general relief was granted on his allegations of the 
 arbitrators' fraud or gross mistake. 90 But an action at law on an 
 
 course of the arbitration it is dis- 
 covered by one of the parties to 
 "whom it was at first unknown that 
 the arbitrator has a large interest in 
 the Bubject matter of the award, it 
 is not necessary to wait for the 
 award and then take proceedings, but 
 the party may come to have the ar- 
 bitrator removed. Again, if personal 
 unfitness has arisen from perjury or 
 fraud, it is clear that a man will be 
 •unsuitable to exercise judicial or 
 ^was-t-judicial functions." The ar- 
 bitrator was enjoined. 
 
 88. Cleland v. Hedly, 5 R. I. 163. 
 
 89. Walker v. Frobisher, 6 Vea. 
 70; Fetherstone v. Cooper, 9 Ves. 67; 
 Harvey v. Shelton, 7 Beav. 455 ; Dob- 
 son v. Groves, 6 Ad. & El. (N. S.) 
 637 ; Plews v. Middleton, 6 Ad. & El. 
 (N. S.) 845; Emery v. Owings, 7 
 Gill. (Md.) 488; Strong v. Strong, 9 
 Cush. (Mass.) 560, 574. 
 
 90. In Stubbings v. McGregor, 86 
 Wis. 248, 50 N. W. 841, Pinney, J., 
 Baid: "It was agreed that the esti- 
 mate of the parties chosen to esti- 
 mate the amount of lumber sold by 
 the plaintiff to the defendants should 
 be conclusive, and the estimate made 
 stands substantially upon the same 
 grounds, and its validity is to be de- 
 termined by the same principles as 
 are applicable to an award of arbi- 
 trators. Their decision ought not to 
 be disturbed, without some statement 
 going to show that it was made under 
 a mistake or was not honest. Baasen 
 v. Baehr, 7 Wis. 516, 521; Hudson v. 
 McCartney, 33 Wis. 332; Early v. 
 Logging Co., 68 Wis. 112, 31 N. W. 
 714. It was conceded by appellants' 
 counsel that, for fraud or gross mis- 
 take, the estimate in question might 
 be set aside or disregarded. In order 
 to avoid the award for alleged mis- 
 
 860
 
 Staying Actions and Suits. 
 
 § 5G1 
 
 award will not be enjoined in order to give the complainant an 
 opportunity to impeach the testimony of his opponent's witness of 
 the object of whose evidence he was notified beforehand. 91 And a 
 party may lose his right to have an award set aside by not making 
 his application therefor at the next term after it is published. 92 
 
 § 561. As against garnishees. — Where issues can be made up 
 and tried and judgment rendered in a garnishee suit, which sub- 
 stantially has the same legal effect as any other judgment, the 
 garnishee is regarded as a defendant, and as such may be enjoined 
 in cases of fraud. 93 Aud the garnishee may be restrained from 
 disposing of the property in his hands to the injury of an attaching 
 creditor. 94 And it has been held in some jurisdictions that a cred- 
 itor who has attached the property of his debtor has thereby 
 acquired a sufficient lien on such property to entitle him to file a 
 bill in equity to remove from it any fraudulent incumbrance,* 6 
 
 take, the evidence should be clear 
 and satisfactory. The mistake to be 
 shown must be of some material fact, 
 as distinguished from mere misjudg- 
 ment, and not of a trifling or compar- 
 atively immaterial character, but one 
 affecting in an important or consid- 
 erable degree the substantial rights 
 of the party complaining of it. It 
 satisfactorily appears in this case 
 that the estimators wholly omitted to 
 estimate, and include in their esti- 
 mate of the amount of lumber sold 
 by the plaintiff to the defendants, 
 three piles of lumber, amounting in 
 all to about 85,000 feet, which, at the 
 contract price of $11 per thousand 
 would amount to $935. One of these 
 piles was omitted by mistake, and 
 the other two because, though piled 
 as No. 3 lumber, which is a grade 
 better than culls, and not with the 
 piles of culls, the estimators consid- 
 ered and decided these piles in fact to 
 be culls, and not lumber sold under 
 the contract. A partial estimate wa9 
 
 not, therefore, a valid execution of 
 their authority, and is not binding on 
 the parties. It left the entire amount 
 practically at large — as much so as if 
 no submission and estimate had been 
 made — and wholly failed to meet the 
 requirements of the occasion, namely, 
 to ascertain and determine what 
 amount of lumber the defendants 
 were to pay for at $11 per thousand, 
 under the contract of sale. The rule, 
 undoubtedly, is that the failure to 
 pass upon all the matters submitted 
 is fatal to the whole award, render- 
 ing it void. Morse, Arb. 345, and 
 cases in note 1 ; Canfield v. Insurance 
 Co., 55 Wis. 419, 426, 13 N. W. 252." 
 
 91. Wood worth v. Van Buskerk, 
 1 Johns. Ch. (N. Y.) 432. 
 
 92. Smith v. Whitmore, 1 Hem. ft 
 M. 576. 
 
 93. Malley v. Altman, 14 Wis. 22. 
 Compare Reubens v. Joel, 13 N. Y. 
 488. 
 
 94. Almy v. Piatt, 16 Wis. 169. 
 
 95. Tappan v. Evans, 11 N. H. 
 
 861
 
 §5(32 Staying Actions and Suits. 
 
 but the more general rule is that a creditor la not entitled to such 
 equitable relief until he has recovered judgment and exhausted 
 his legal remedies. 9 * And garnishment proceedings will not be 
 enjoined where there is an adequate remedy at law, 97 such as a 
 complete defense thereto. 58 So the transferee of the property of a 
 debtor, which was alleged to have been fraudulently disposed of, 
 cannot maintain a bill in equity to restrain the enforcement of a 
 garnishment proceeding at law by a creditor of such a debtor pend- 
 ing a suit in equity by other creditors of the debtor seeking to set 
 aside the conveyance and to subject the same property to the pay- 
 ment of their demands." In proceedings supplementary to execu- 
 tion an order restraining a third person from disposing of property 
 of the debtor cannot be made until such third person has been made 
 a party to the proceeding. 1 
 
 § 502. Protecting surety where creditor has collaterals. — 
 Where the holder of a note, who also has received certain collateral*? 
 from the payee to secure its payment, sues, thereon an accommo- 
 dation maker who as to the payee is a mere surety, such maker 
 cannot enjoin the prosecution of the action pending another action 
 to determine his own and others' rights to the collaterals. 2 Ordi- 
 
 311; Kittredge v. Emerson, 15 N. H. Montgomery. 116 Ala. 384, 22 So. 
 
 227; Ston P v. Anderson, 26 N. H. 497; Teft v. Booth, 104 Ga. 590, 30 
 
 506; Hunt v. Field, 9 N. J. Eq. 36. S. E. 803. 
 
 96. Wiggins v. Armstrong, 2 99. Chesapeake Guano Co. v. 
 Johns. Ch. (N. Y.) 144; Brinkerhoff Montgomery. 116 Ala. 384, 22 So. 
 v. Brown, 4 Johns. Ch. (N. Y.) 671; 497. 
 
 McDerinutt v. Strong, 4 Johns. Ch. 1. King v. Tuska, 1 Duer (N. Y.). 
 
 (N. Y.) 687; Neustadt v. Joel. 2 635. 
 
 Duer (N. Y.), 530; Reubens v. Joel, 2. Koehler v. Farmers' & Drover^ 
 
 13 N. Y. 488; Day v. Washburn, 24 Nat. Bank of Somers, 117 N. Y. 661. 
 
 How. (U. S.) 352, 16 L. Ed. 712. 22 N. E. 1134, aff'9 51 Hun, 418, 4 
 
 97. Sturges v. Jackson (Miss. N. Y. Supp. 232, where Daniels, J.. 
 1906). 40 So. 547, so holding where said: "The bank had the right to 
 the debtor had a remedy at law prosecute the maker of the note and 
 either on the indemnity bond to the recover its debt of him, leaving him 
 sheriff or on the latter's official bond to avail himself of the protection 
 for a wrongful garnishment of his which could be afforded by the appli- 
 wages. cation of the collaterals or their pro- 
 
 98. Chesapeake Guano Co. v. ceeds to his reimbursement after th* 
 
 862
 
 Staying Actions and Suits. 
 
 §56.' 
 
 narily a creditor will not be enjoined from proceeding at law 
 against the principal and sureties in the first instance, the general 
 rule being that he is not obliged to look to the principal debtor 
 or his property and exhaust his remedies against him before re- 
 sorting to the surety, 3 but the rule is otherwise and the creditor 
 may be enjoined from prosecuting his action at law if the surety 
 has an equitable defense not cognizable by a court of law. 4 
 
 § 563. Enjoining attachments of property of insolvent. — If a 
 citizen of Massachusetts, with knowledge that his debtor residing 
 
 dispute between himself and the 
 others should be settled. Neither the 
 authorities referred to on behalf of 
 the plaintiff, nor any others which 
 have been found, sustain any greater 
 right on the part of the plaintill than 
 this under the circumstances here 
 presented. The oases of [rick v. 
 Black, 17 N. J. Eq. 189, and Thom- 
 son v. Taylor, 11 Hun i X. V. i . 274, 
 were sustained upon the ground of 
 .special equities vested in the surety 
 subordinated to no preceding con- 
 troversy, such as is disclosed in this 
 proceeding. And it may be where the 
 collaterals are readily available to 
 the creditor and can be applied by 
 him without the settlement of any 
 dispute to the payment of the indebt- 
 edness in exoneration of the surety 
 with the same facility and certainty 
 as a proceeding against the surety 
 himself, that the court would direct 
 that disposition to be made of the 
 securities in a case where the princi- 
 pal debtor is himself insolvent. Mc- 
 Connell v. Scott, 15 Ohio, 401." This 
 rule was adopted also in Wilcox v. 
 Todd, 64 Mo. 388; Wooten v. Bu- 
 chanan. 40 Miss. 386. And see Wright 
 v. Austin. 56 Barb. (N. Y.) 13- First 
 Nat. Bank v. Wood, 71 N. Y. 405. 
 But a surety cannot invoke this rule 
 
 so long as his right to the collaterals 
 is disputed by others claiming pri- 
 ority over him. Garry s. Cannon, '■> 
 I red. Kq. 64. 
 
 3. Mr-ade v. Grigsby, 26 Gratt. 
 (Va.) 612. 
 
 4. Under the Virginia statute, a 
 motion was made to charge the prin- 
 cipal and sureties on the official bond 
 of deputy county treasurer. One of 
 the sureties filed his bill to enjoin 
 further proceedings, alleging that he 
 had equitable defenses to the motion 
 at law. The bill alleged that his prin- 
 cipal, being indebted to defendant, the 
 county treasurer, executed the bond, 
 and gave a trust deed to secure the 
 same; that said trust deed had been 
 foreclosed by defendant, and the pro- 
 ceeds appropriated, and that they 
 were ample to cover all the deputy's 
 liability to the defendant; and not- 
 withstanding defendant is now seek- 
 ing to recover the amount embraced 
 in the bond and deed of trust, alleged 
 that said deed of trust was foreclosed 
 for a private debt due from the 
 deputy to defendant. The deputy an- 
 swered, admitting the allegations of 
 the bill to be true, and praying that 
 his answer be treated as a cross-bill. 
 Held, that equity had jurisdiction to 
 
 863
 
 § 563 Staying Actions and Suits. 
 
 there has stopped payment, and anticipating proceedings in insolv- 
 ency, makes an assignment of his claim to a citizen of another 
 State, without consideration, and the latter, before proceedings in 
 insolvency are begun brings an action upon the claim in the foreign 
 State, and attaches property of the debtor there, the Massacbusettl 
 court will restrain the Massachusetts assignor of the claim from 
 prosecuting the action to judgment, if he has control of such 
 action. 5 And where an insolvent debtor has made an assignment, 
 creditors who are citizens of the State in which the assignment is 
 made may be enjoined at the suit of the assignees from prosecuting 
 by attachment a suit against the debtor's property in another 
 b'tate where such suit was instituted after the petition in insolvency 
 was filed. 6 But where a citizen of New York made a general as 
 signment there to plaintiff, for the benefit of his creditors, and had 
 property in Pennsylvania, and subsequent to such assignment, but 
 before it was recorded in Pennsylvania, a New York creditor 
 attached the property in Pennsylvania, it was held that an action 
 by plaintiff to restrain further proceedings under the attachment 
 was not maintainable, as the New York creditor had the same right 
 to enforce payment out of the property in Pennsylvania as a cred- 
 itor there resident had. 7 And where proceedings in bankruptcy 
 had been instituted in the Federal court against the debtor to 
 which attaching creditors and receivers in the State courts have 
 not been made parties the latter will not be enjoined from inter- 
 fering with the property of the debtor. 8 
 
 grant the injunction, as plaintiff could paramount unless some valid claim 
 
 be estopped to set up at law the de- or lien existed on the insolvent's 
 
 fenses inconsistent with the terms of funds in the foreign State, which, un- 
 
 the bond, and would proceed to a final der the laws of that State, would di- 
 
 disposition of the case. Penn v. In- vert them from the assignee, if the 
 
 gles, 82 Va. 65. attachment had to be vacated in the 
 
 5. Cunningham v. Butler, 142 courts of that State. See Lawrence 
 
 Mass. 47, 6 N. E. 782, where the v. Batcheller, 131 Mass. 504. 
 court followed the decision in Dehon 6. Hazen v. Louisville Nat. Bank, 
 
 v. Foster, 4 Allen (Mass.), 545. In 70 Vt. 543, 41 Atl. 1046, 67 Am. St. 
 
 Dehon v. Foster, 7 Allen (Mass.). 57, Rep. 680. 
 
 it was held that the equitable right 7. Warner v. Jaffray, 96 N. Y. 248. 
 
 of the assignee of the insolvent was 8. Re Ogles, 93 Fed. 426. 
 
 864
 
 Staying Actions and Suits. 
 
 §564r 
 
 § 564. Interpleader and injunction. — Two or more persons who 
 claim the same thing, of debt or duty, from a third person, will 
 not be decreed to interplead touching their claims, and be enjoined 
 from the prosecution of separate actions against him, unless he is 
 a mere stakeholder, and on depositing the money or property in 
 question into court, may thereby be absolutely discharged from 
 liability to any of the claimants, and thus leave them to proceed 
 with their controversy. 9 But where the plaintiff in an action for 
 interpleader could not without hazard pay the sum due to either 
 of the defendants, and had, before his action for interpleader was 
 begun, paid the sum due by him into court, which both defendants 
 by their answers claimed, it was held on appeal that he was entitled 
 
 9. Bassett v. Leslie. 123 N. Y. 396, 
 25 N. E. 386, per Earl, J.: "This is 
 an action of interpleader, and the 
 plaintiff prayed judgment that the 
 defendants might be decreed to inter- 
 plead touching their several claims, 
 and that both defendants might be 
 perpetually enjoined from the further 
 prosecution of actions commenced by 
 them against the plaintiffs. 
 This, under the old chancery practice, 
 would have been called a strict bill of 
 interpleader, and to maintain such 
 an action, it is necessary to allege 
 and show that two or more persons 
 have preferred a claim against the 
 plaintiff; that they claim the same 
 thing; that the plaintiff has no 
 beneficial interest in anything 
 claimed, and that it cannot be de- 
 termined without hazard to himself, 
 to which of the two defendants the 
 money or thing belongs. There must 
 also be an offer to bring the money 
 or thing into court. Mohawk, etc., R. 
 Co. v. Clute, 4 Paige, 384; Dorn v. 
 Fox, 61 N. Y. 268; Baltimore, etc., 
 R. Co. v. Arthur, 90 N. Y. 234. Such 
 an action always supposes that the 
 plaintiff is a mere stakeholder for one 
 
 or other of the defendants who claim 
 the stake, and the case must be such 
 that he can pay or deposit the money 
 or property into court, and be abso- 
 lutely discharged from all liability to 
 either of the defendants, and thus 
 pass utterly out of the controversy, 
 leaving that to proceed between thet 
 several claimants; and an action of 
 interpleader cannot be sustained 
 where, from the complaint itself, it 
 appears that one of the complainant -i 
 is clearly entitled to the debt or thing 
 claimed, to the exclusion of the other. 
 Mohawk, etc., R. Co. v. Clute, 4 
 Paige, 384." In German Sav. Bank 
 v. Friend, 61 N. Y. Super. 400, it wa3 
 held that the court would refuse to 
 allow a savings bank to implead an 
 adverse claimant of a deposit in the 
 bank, who claims by title superior to 
 depositor, as the bank cannot dispute 
 the title of its depositor. Lund v. 
 Seaman's Sav. Bank, 20 How. Pr. 
 461; S. C, 23 How. Pr. 258. Sec 
 Lawson v. Terminal Warehouse Co., 
 70 Hun, 281, 24 ST. Y. Supp. 281. In 
 Aleck v. Jackson, 49 N. J. Eq. 507, 
 23 Atl. 760, the distinction is noticed 
 between a bill of strict interpleader, 
 
 $65 
 
 55
 
 ^ 5(}5 Si lyxxg Actions and Suits. 
 
 to a judgment of interpleader, and to an injunction perpetually 
 restraining them from any further prosecution against him. 19 
 
 § 565. Same subject. — Where pending a suit by creditors of 
 the holder of a deposit certificate against him and the bankers 
 which issued it, in which also the bankers are enjoined from pay- 
 ing it, another suit is brought against the bankers by a present 
 holder of the certificate, who took it from the former holder after 
 the first suit was brought, and a receiver therein bad ben ap- 
 pointed, the superior court of the county in which both suits a im- 
 pending has jurisdiction to enjoin the plaintiff in the second suit 
 from prosecuting it, though he is a resident of another county. 
 and that court has jurisdiction also to order him to be made a 
 party defendant to the first suit, and there litigate his right to the 
 fund in the bank, as against the receiver and the plaintiffs in that 
 suit, whether they claim in harmony with the receiver or in oppo- 
 sition to the interests which he represents." And where property 
 deposited in safe deposit company is claimed by the depositor's 
 administrator, who does not produce the keys of the box, but 
 gives an explanation of their loss, and it is also claimed by another 
 person as a donee, who produces the keys, the company may inter- 
 plead the claimants, and enjoin them from suing for the property. 11 
 
 which is filed by a mere stakeholder, bility, or, to speak more accurately, 
 
 and a bill in the- nature of inter- against a double vexation on account 
 
 pleader, in which the complainant of one liability. Caulkins v. Bolton, 
 
 aeeka some relief for himself. 31 Hun, 458, aff'd 98 N. Y. 511; 
 
 10. Crano v. McDonald, 118 N. Y. Johnston v. Slimmel, 89 N. Y. 117; 
 
 «48, 23 N. E. 991. In this case Vann, Schuyler v. Pelissier, 3 Edw. Ch. 191 j 
 
 J., said: "This conflict in the deci- Bedell v. Hoffman, 2 Paige, 199; Belt 
 
 sions of the courts shows that the ad- v. Hunt, 3 Barb. Ch. 391; Badeau v. 
 
 verse claims of the defendants in- Tylee, 1 Sandf. Ch. 270; German Ex. 
 
 volved a difficult question, and is a Bank v. Com'rs, 6 Abb. N. C. 394; 
 
 conclusive answer to the contention Atkinson v. Manks, 1 Cowen, 691. 
 
 of the appellant that the plaintiff did 703." 
 
 not need the aid of an action of this 11. James v. Sams, 90 Ga. 404, 17 
 
 character. The law did not place so S. E. 962. 
 
 great a responsibility upon him, but 12. Mercantile Safe Deposit Co. v. 
 
 provided him with a remedy to pro- Dimon. 25 N. Y. Supp. 388. 
 tect himself against the double lia- 
 
 S66
 
 Staying Actions and Suits. § 566 
 
 § 566. Enjoining action at law in case of set-off. — In general, 
 the insolvency of a creditor who is pressing the foreclosure or 
 enforcement of a lien, and against whom off-sets are claimed by 
 the debtor, constitutes good ground for an injunction; but when 
 this is the only ground for equitable interference, and plaintiff 
 fails to prove the insolvency, the injunction should be dissolved. 15 
 And in such a case the facts of insolvency upon which the appli- 
 cation for an injunction is made, should appear by positive aver- 
 ments founded on complainant's own knowledge or that of an 
 affiant cognizant of the facts. 14 The general rule is that when 
 there are cross demands between two parties of such a nature that 
 if both were recoverable at law, they would be the subject of 
 legal set-off, then if either of the demands is matter of equitable 
 jurisdiction, as where one of the parties becomes insolvent, the 
 set-off will be enforced by an injunction restraining the insolvent 
 from an action at law on his demand. 15 In a suit seeking an equit- 
 able off-set upon an account between former partners, and an 
 injunction to restrain a suit at law by the defendant against the 
 complainant upon notes given in the course of partnership trans- 
 actions, the mere assertion of a counter demand will not sustain 
 the injunction issued on filing the bill. Some account must be 
 given or statement made, or facts alleged from which the court 
 can judge whether the complainant would probably be able to 
 
 13. Farland v. Wood, 35 W. Va. against him, for which he pays noth- 
 
 458, 14 S. E. 140, per Lucas, J.: "In ing, and with knowledge of the 
 
 many cases the insolvency of a credi- debtor's insolvency is not in a posi- 
 
 tor, against whom off-sets are claimed lion to demand the application of the 
 
 while he is pressing the enforcement rule as to equitable set-offs. Pond v. 
 
 of a lien, has been considered good Harwood, 139 N. Y. Ill, 34 N. E. 
 
 ground for the interposition of equity 768. And see Hackett v. Connett, 2 
 
 by injunction. But as I have said, if Edw. Ch. (N. Y.) 73; Wolcott v. Sul- 
 
 plaintiff fails to prove the insol- livan, 1 Edw. Ch. (N. Y.) 399; Hatch 
 
 vency, the injunction must be dis- v. Mayor, etc., 82 N. Y. 442; Greene 
 
 solved. McClellan v. Kinnaird, 6 v. Darling, 5 Mason, 202. 
 Cratt. 352; Meem v. Rucker, 10 14. Hale v. Railroad Company, 23 
 
 Gratt. 506; Lindsay v. Jackson, 2 W. Va. 454. 
 
 Paige, 582; McMillan v. Farrell, 7 15. Clark v. Cort, 1 Craig & Ph. 
 
 W. Va. 223; Western, etc., Co. v. 154. And see O'Connor v. Spraight, 
 
 Virginia Coal Co., 10 W. Va. 250. A 1 Sch. & Lef. 305. 
 purchaser of a debt after suit brought 
 
 867
 
 g 567 
 
 Stayibo Actions and Suits. 
 
 .stablish his claim. 1 * And equity will not interfere to restrain the 
 recovery at law of a legacy, on the ground that the legatee in 
 indebted on a bond to the testator, payable at a future day, and 
 a decree against the legatee for costs in I suit to enforce the 
 execution of ■ new band, is no ground to enjoin the legatee from 
 an action at law to recover the legacy, since Bach coed could bi 
 
 off in the action at law. 1, 
 t 
 
 § 507. Enjoining action where creditor agreed to release claim. 
 
 Though a defendant at law, with a claim not available in set-off, 
 
 cannot usually be relieved in equity against a solvent plaintiff; 
 yet he can be relieved if the claim arises cut of the matter in con- 
 troversy, or is an agreement so connected therewith, as, if observed, 
 to destroy the demand in suit. 18 Thus, if a person, in disregard 
 of his agreement to execute certain releases, brings an action on 
 the claim which was agreed to be released, the defendant is entitled 
 to have the action restrained, and to a decree for the specific per- 
 formance of the agreement to n Lease ' Vnd where a congregation, 
 
 16. Hewitt v. Kuhl. 25 N. J. Eq. 
 24, per Runyon, Ch.: "To maintain 
 an equitable off-set, the party seek- 
 ing the benefit of it must show some 
 equitable ground for being protected 
 against his adversary's demand. The 
 mere existence of a counter demand is 
 obviously not enough. Nor will the 
 mere pendency of an account, out of 
 which a cross demand may arise, con- 
 fer the right to an equitable off-set. 
 Rawson v. Samuel, 1 Craig & Ph. 161. 
 179; Wartnaby v. Shuttleworth. 1 
 Jut. 469; Dodd v. Lydall, 1 Hare, 
 337; Gordon v. Pym, 3 Hare, 223; 
 Duncan v. Lyon, 3 Johns. Ch. 351. 
 
 17. Hayes v. Hayes, 2 Del. Ch. 191. 
 
 18. Reed v. Newburgh Bank, 1 
 Paige (N. Y.), 215. 
 
 19. Baker v. Hawkins. 14 R. L 
 359, per Durfee, C. J. : " The case is 
 not like an ordinary case of set-off, 
 where there is no special equity, but 
 
 rather like a case of set-off under a 
 contract which creates a special equity 
 on which the debtor has been per 
 suaded to rely and which the creditor 
 has no good reason for not observing. 
 Wln , under such circumstances, 
 should not the creditor be required 
 to do the very thing which he haa 
 agreed to do, and especially where, 
 as in this case, his claim has been 
 kept alive by his debtor's reliance on 
 bis doing it. ... It has been held 
 that an agreement between a creditor 
 and a third person, for valuable con- 
 sideration, whereby the creditor 
 agreed to compromise his claim 
 against the debtor, would be specific- 
 ally enforced. Phillips v. Berger, 2 
 Barb. 608, 8 Barb. 527. See, also, Ad- 
 derley v. Dixon, 1 Sim. & Stu. 607. 
 The tendency in this country is to ex- 
 tend the jurisdiction to all cases in 
 which either of the parties is fairly 
 
 868
 
 Staying Actions and Suits. § 5b\S 
 
 in view of the small salary its pastor has received, agrees at the 
 conclusion of his pastorate to allow him a certain credit, on a bond, 
 on which he is liable to the society, and the trustees acquiesce in 
 the agreement, the pastor is entitled to an injunction to restrain 
 an action at law on the bond, and to have the credit decreed to be 
 allowed. 20 
 
 § 568. Same subject. — Where plaintiff sought to restrain the 
 collection of claims against it on policies of insurance assigned 
 to the defendant by the former holders thereof, who had sur- 
 rendered the policies for their cash value as estimated by plaintiff, 
 and had given receipts in full discharge of all claims, and defend- 
 ant alleged that the surrender of the policies and the receipts had 
 been fraudulently obtained, it was held that plaintiff was not 
 entitled to an injunction, for the very satisfactory and controlling 
 reason in equity, that the effect of the assignment would be to 
 prevent a multiplicity of suits by the former policyholders in 
 several different jurisdictions, and instead, there would be but a 
 single suit by the assignee brought where the plaintiff company 
 was domiciled. 21 And an injunction will not lie to restrain de- 
 fendant from prosecuting in another court of competent jurisdic- 
 tion, proceedings instituted on his complaint to compel plaintiff 
 to remove a soda water stand from the sidewalk in front of plain- 
 tiff's premises, but a condition will be imposed either that plaintiff 
 be made a party to, or notified of the proceedings to remove the 
 soda water stand. 22 Again, where a railroad company sold an in- 
 terest in certain cars to a car company, leased the remaining 
 interest therein to the car company, and made a contract with it 
 for the operation of the cars by the latter, with a division of the 
 profits and the contract provided that the railroad company might 
 terminate the lease, and pay the car company for its interest in the 
 cars, and the railroad company terminated the lease without paying 
 
 entitled to a more perfect relief that 20. Worrell v. First Presb. Church, 
 
 he can get at law. Waterman, Spec. 23 N. J. Eq. 96. 
 
 Perf., § 16." 21. Metropolitan Life Ins. Co. v. 
 
 See, also, Bomeisler v. Forster, 154 Fuller, 61 Conn. 252, 23 All. 193. 
 
 N. Y. 229, 48 N. E. 534, 39 L. R. A. 22. L*7aru3 v. Danziger, 16 N. Y. 
 
 240, rev'g 10 App. Div. 43, 626, 41 Supp. 200, 27 Abb. N. C. 147. 
 N. Y. Supp. 742. 
 
 SC9
 
 S . r >*;!t Stating Actions and Suits. 
 
 for the car company's interest, it was held that, on being sued at 
 law for the value of the car company's interest in the cars, the 
 railroad company could not enjoin the prosecution of such action 
 on the ground that the car company had not fairly divided the 
 profits, since the various branches of the contract were totally 
 distinct. 23 And where plaintiff, who was one of the town selectmen, 
 agreed to indemnify the town against loss if the selectmen would 
 release certain goods which had been attached in a suit upon a 
 tax collector's bond, so that plaintiff could satisfy an execution 
 which he held against one of the defendants in that suit, by levy 
 upon the goods so released, it was held that plaintiff could not 
 enjoin the town from proceeding with an action at law to enforce 
 the indemnity agreement, on the ground that the selectmen had 
 neglected to enforce payment of uncollected taxes, because he, as. 
 one of the board, was guilty with the others, and aho because, 
 by accepting the plaintiff's agreement, the selectmen did not 
 waive or abandon any legal remedy to secure payment from the 
 collector of the delinquent taxes. 24 
 
 § 569. Actions barred by statute of limitations. — A citizen 
 of one State will not, it has been decided, be enjoined, in that 
 State, from prosecuting an action at law against the intestate estate 
 of a deceased citizen of such State, found in another State, upon 
 a cause of action barred by the statute of limitations of the former 
 State, but not barred by the statute of limitations of the other 
 State in which the action is being prosecuted, it being declared 
 that it is not inequitable for the party to prosecute his action in 
 the latter forum, merely because it affords him a better remedy 
 than that of his own domicile. 25 But a court of equity will at the 
 
 23. Pullman Palace Car Co. v. Chi- law against the intestate estate of a 
 cago M. R. Co., 56 Fed. 756. deceased citizen of this State, found 
 
 24. Spaulding v. Northumberland, in another State, upon a cause of ac- 
 64 N. H. 153, 6 Atl. 642. tion which is barred by our statute 
 
 25. Thorndike v. Thorndike, 142 of limitations but which is not barred 
 111. 450. 32 N. E. 510, per Scholfield, by the statute of limitations of the 
 J.: "The single question is here pre- State in which the suit is being prose- 
 sented whether the fact that a citizen cuted, authorizes a court of chancery 
 of this State is prosecuting a suit at in this State, having jurisdiction o£ 
 
 sro
 
 Staying Actions and Suits. 
 
 §570 
 
 instance of a purchaser under the husband, enjoin the widow from 
 proceeding in the probate court to procure an allotment of dower 
 where her right is barred by the statute of limitations. 26 In this 
 connection it is decided that a bill in equity to enjoin the prosecu- 
 tion of an action on a promissory note, is not demurrable on the 
 ground that complainant had a defense at law by pleading the 
 statute of limitations, as to plead that statute is not a meritorious 
 defense. 27 
 
 § 570. Same subject. — A court of equity may restrain a de- 
 fendant from setting up the statute of limitations as a defense to 
 an action at law, where it is clearly made to appear that he has, 
 by injunction, prevented the plaintiff from bringing the action 
 until sufficient time has elapsed to render such defense available 
 to him. 28 And in an action at law which, but for the fact that a 
 
 the person of the plaintiff, to enjoin 
 him from further prosecuting his suit 
 at law in the other State. The court 
 below decided, and as we think cor- 
 rectly, in the negative. The statute 
 of limitations is a purely legal, as 
 distinguished from an equitable de- 
 fense; and although courts of equity 
 will ordinarily act in obedience, and 
 in analogy to the statute of limita- 
 tions, yet they will also in proper 
 cases interfere in actions at law to 
 prevent the bar of the statute where 
 it wounld be inequitable and unjust. 
 2 Story, Eq. Jur., § 1521. And so it 
 has been held that where the obliga- 
 tion is clear, and its essential charac- 
 ter has not been affected by the lapse 
 of time, equity will enforce a claim 
 of long standing as readily as one of 
 recent origin, as between the immedi- 
 ate parties to the transaction. 13 
 Am. & Eng. Enc. 674, note 5; United 
 States v. Alexandria, 19 Fed. 609, 
 and cases cited; Reynolds v. Sumner, 
 126 111. 58, 18 N. E. 334. The fact 
 that the remedy at law is barred here 
 does not give even a legal, much less 
 
 an equitable right to interpose the 
 bar in the action in the foreign State, 
 against the property therein. Mitchell 
 v. Shook, 72 111. 492; Mineral Point 
 R. Co. v. Barron, 83 111. 365; Wabasli 
 R. Co. v. Dougan, 142 111. 248, 31 N. 
 E. 594. No case has been cited, and 
 we are aware of none, holding that it 
 is inequitable for a party to prosecute 
 a legal demand against another within 
 any forum that will take legal juris- 
 diction of the case, merely because 
 that forum will afford him a better 
 remedy than that of his domicil. To 
 justify equitable interposition in a 
 case like the present, it must be made 
 to appear that an equitable right will 
 otherwise be denied the party seeking 
 relief." 
 
 26. Moody v. Harper, 38 MiBS. 
 599. 
 
 27. Hastings v. Belden, 55 Vt. 
 273. 
 
 28. Lamb v. Martin, 43 N. J. Eq. 
 34, 9 Atl. 747, following the decision 
 in Doughty v. Doughty, 10 N. J. Eq. 
 347, where Williamson, Ch. said: 
 " It would be unconscientious for a. 
 
 871
 
 § 571 StaYIM, A< ltuN.s AND SuiZB. 
 
 receiver had been appointed for the defendant corporation, would 
 have been seasonably begun, the receiver was brought in by amend- 
 ment, and it was held that the receiver should be enjoined from 
 pleading the statute of limitations as a bar. 29 And a party who has 
 deceived another as to the fact that a cause of action has accrued 
 may be enjoined in an action thereon by the latter from pleading 
 the statute of limitations. no P>ut whore a person makes a contract 
 to convey land to another, and the vendee pays part of the purchase 
 money, and the vendor then refuses to perform, and the vendee 
 sues for specific performance, and a decree for specific perform- 
 ance is made, the decree extinguishes the vendee's right of action 
 for the purchase money paid ; and if he allows the decree to stand 
 unperformed for six years, he will not, if he sues after that time 
 for his purchase money, be entitled to an injunction restraining 
 the vendor from setting up the statute of limitations. 81 
 
 § 571. In cases of res adjudicata. — An adjudication by a court 
 having jurisdiction of the subject matter and the parties, is con- 
 clusive not only as to matters actually determined, but also as 
 to every other incidental matter which the parties might have liti- 
 gated, and a subsequent action, involving substantially the same 
 controversy, between the same parties, will be enjoined, though 
 it be an action in ejectment, while the first was an action for 
 partition. And dismissal of a bill in equity, upon the merits, is 
 a bar to further proceedings in the same court for the same pur- 
 pose, between the same, parties, though the court may not have 
 gone into the evidence. 32 And where a receiver of a Federal court 
 
 party to plead the statute of limita-, <w. Central R. Co., 42 N. J. Eq. 591, 8 
 
 tions against an adversary who, at .Atl. 648. 
 
 his solicitation, had been enjoined 30. Holloway v. Appelget, 55 N. J. 
 
 from his suit; and it would seem to Eq. 583, 40 Atl. 27. 
 
 be the appropriate remedy that the 31. Lamb v. Martin, 43 N. J. Eq. 
 
 same instrument which he had used 34, 38, 9 Atl. 747. 
 
 to interrupt the legal proceeding of 32. Rogers v. Rogers, 37 W. Va. 
 
 another, should be interposed as a 407, 16 S. E. 633; Sayre Adm'rs v. 
 
 shield to prevent his taking an undue Harpold, 33 W. Va. 556, 11 S. E. 16; 
 
 advantage of such interruption." Corrothers v. Sargent, 20 W. Va. 351 ; 
 
 29. Lehigh Coal & Navigation Co. McCoy v. McCoy, 29 W. Va. 794; 
 
 872
 
 Staying Actions and Suits. 
 
 571 
 
 applies to the court for protection against distraint of property in 
 his hands for the payment of a State tax which he believes to be 
 invalid, basing his action on a prior decision of the same court that 
 the tax was illegal, the court will extend such protection by enjoin- 
 
 Tracey v. Shumate, 22 W. Va. 475. 
 But see Evans v. Taylor, 28 W. Va. 
 184, 189. In Rogers v. Rogers, supra, 
 English, J., said: "In Harris v. 
 Harris, 36 Barb. 88, the court thus 
 remarks: 'An adjudication is final 
 and conclusive, not only as to the 
 matters determined, but as to every 
 ether matter which the parties might 
 have litigated and have decided as 
 incident to or essentially connected 
 with the subject matter of the liti- 
 gation, and every matter coming 
 within the legitimate purview of the 
 original action, both iu respect to the 
 matters of claim and of defense.' It 
 is not essential, he says, ' that the 
 matters should have been distinctly 
 put in issue in a former suit to 
 make it an estoppel. It is sufficient 
 if it be shown to have been tried and 
 settled in a former suit. The force 
 of a judgment as res adjudicata can- 
 not be destroyed or impaired by 
 showing that it is clearly erroneous 
 and ought not to have been rendered.' 
 Citing Case v. Beauregard, 101 U. S. 
 688. Again he says: 'It is true 
 that a judgment or decree, to be an 
 estoppel, must be a judgment or de- 
 cree upon the merits; but by decree 
 upon the merits is not meant " on the 
 merits" in the moral sense of those 
 words. It is sufficient that the status 
 of the suit was such that the parties 
 might have had their suit disposed 
 of on its merits if they had presented 
 all their evidence, and the court had 
 properly understood the facts, and 
 correctly applied the law to the 
 facts.' Citing Hughes v. U. S., 4 
 Wall. 232. Applying these princi- 
 
 ples to the case under consideration, 
 there was nothing to prevent John 
 Rogers, the plaintiff in the partition 
 suit, from showing that he paid a 
 portion of the purchase money to A. 
 G. Bailey for the 200-acre tract of 
 land; and although his disposition 
 was taken, he does not show that he 
 paid one dollar of the purchase money 
 for said tract, and no other witness 
 shows that he paid any part of said 
 purchase money. A. G. Bailey, who 
 filed his answer in the case, and who 
 recites in his deed that said pur- 
 chase money was paid him by George 
 W. and John Rogers, or that they 
 furnished the money and funds with 
 which the purchase money was paid, 
 was not examined as a witness, as 
 he might have been, to prove said 
 fact. When said land was sold for 
 George W. Rogers' liability as surety, 
 said John Rogers claimed the 73 acre 
 tract, but he asserted no claim to the 
 200-acre tract. The unsworn answer 
 of A. G. Bailey was no evidence 
 against his co-defendants, and, not- 
 withstanding it is apparent that the 
 said John Rogers might have 
 strengthened his case by his own tes- 
 timony and by other witnesses, it is 
 equally manifest that the case was de- 
 cided upon its merits. And as to the 
 question as to whether the said John 
 Rogers was entitled to any portion of 
 said 200-acre tract, or to have the 
 same partitioned and set apart to 
 him. it must be regarded as res ad- 
 judicata; and upon the question as 
 to whether the court below acted 
 properly in restraining the introduc- 
 tion of the deed from said A. G. 
 
 873
 
 § 572 
 
 Staying Actions and Suits. 
 
 ing the sheriff, and requiring the property to be restored to the 
 receiver, until the presumption of the soundness of such prior 
 decision has been overcome. 33 
 
 §572. Same subject; equitable estoppels. — Upon a bill to 
 restrain defendant from prosecuting her action at law for dower, 
 it appeared that the full court, since the filing of the bill, had sus- 
 tained the ruling of the presiding justice in the action at law ; 
 holding that complainant's evidence, giving it the most favorable 
 construction possible, did not constitute a defense to the action, and 
 it was held that the bill should be dismissed, in accordance 
 with the rule that a court of equity will refuse relief, when it 
 appears that the same right which the plaintiff seeks to enforce 
 has been adjudicated adversely to him, in an action at law between 
 the same parties. 34 And equitable estoppels being favored, may 
 be interposed in an action at law, as well as in an action in equity. 35 
 
 Bailey in the action of ejectment, 
 and from further prosecuting said ac- 
 tion of ejectment, see Hill, Inj., p. 
 2G0, § 15, where it is said: 'Equity 
 will restrain by injunction, not only 
 the suit at law itself, but also the 
 introduction of evidence in such suit 
 which, though perhaps legally ad- 
 missible, is manifestly contrary to 
 right and justice.' See, also, 3 Wait, 
 Act. & Def., p. 179, § 12; also Id., 
 p. 718, § 1, where it is said: ' When- 
 ever a spurious deed or instrument, 
 valid on its face, and capable of a 
 vexatious use after the means of de- 
 fense are lost or impaired, or is in 
 any way calculated to throw a cloud 
 upon the title, is outstanding, a 
 court of equity will entertain a suit 
 to compel its delivery and cancella- 
 tion and will also grant an injunc- 
 tion restraining any proceeding based 
 upon or transfer of such instrument 
 before judgment.' See, also, Webb v. 
 Wynn, 35 Ga. 216." 
 
 33. Ex parte Chamberlain, 55 Fed. 
 704. See Burlington, C. R. & N. Ry. 
 
 Co. v. Dey, 89 Iowa, 13. 56 N. W. 
 267, 271, and the cases there cited 
 on the subject of res adjudicata. 
 
 34. Alley v. Chase, 83 Me. 537, 22 
 Atl. 393, per Walton, J.: "It is a 
 settled rule in equity that when a 
 party has an adequate remedy at 
 law, a suit in equity to enforce the 
 same right cannot be maintained. 
 There are a few exceptions to this 
 rule, but none of them apply in thia 
 case. The same right which the 
 parties seek to enforce in this suit, 
 not only could have been but actu- 
 ally was presented as a ground of de- 
 fense in the action of dower, Chase v. 
 Alley, 82 Me. 234, 19 Atl. 397, and 
 was passed upon by the court. It 
 not only might have been, but it was 
 in fact litigated in that suit. And 
 for that reason alone, if for no other, 
 it would be the duty of the court to 
 refuse the relief asked for in this 
 suit. Bachelder v. Bean, 76 Me. 370; 
 Milliken v. Dockray, 80 Me. 82, 13 
 Atl. 127." 
 
 35. Stanwood v. McLellan, 48 Me. 
 
 874
 
 Staying Actions and Suits. §§ 573, 574, 575 
 
 § 573. Restraining the enforcement of void ordinances — 
 Where a municipal corporation is seeking to enforce an ordinance 
 which is void, it may be enjoined at the suit of any person who is 
 injuriously affected by it. 36 
 
 § 574. Criminal proceedings not enjoined. — The rule that 
 courts of equity will not restrain criminal proceedings, 37 has been 
 applied where a sewing machine company sought to restrain a 
 sheriff and tax collector from demanding from its agents a license 
 tax imposed by the revenue act, and from prosecuting the agents 
 criminally from violating the provisions of the act. 38 And a city 
 will not be enjoined from enforcing a valid penal ordinance in 
 relation to peddling. 39 And proceedings at law, not of a strictly 
 civil nature, will not be enjoined except where the same right is 
 sought to bo substantiated both at law and in equity. 40 
 
 § 575. Enjoining fraudulent defenses. — Where a person, hav- 
 ing his choice of legal and equitable remedies, chooses an action 
 at law, he cannot ordinarily enjoin the defendant from making 
 therein any defense he may have, but should, on discovering he 
 
 275; Piper v. Gilmore, 49 Me. 149; vent washing and cutting away of 
 Wood v. Pennell, 51 Me. 52; Cas- property along the line of the ditch, 
 well v. Fuller, 77 Me. 105; Fountain may be enjoined from prosecuting 
 v. Whelpley, 77 Me. 132; Briggs v. the owner of such ditch for the viola- 
 Hodgdon. 78 Me. 514, 7 Atl. 387; tion of such an ordinance, such prose- 
 Davis v. Callahan, 78 Me. 313, 5 Atl. cution tending to impair vested 
 73; McClure v. Livermore, 78 Me. rights, and inflict irreparable injury 
 390, 6 Atl. 11. And see Wright v. without authority of law. Platte & 
 Griffey, 147 111. 496, 35 N. E. 732. D. Milling Co. v. Lee, 2 Colo. App. 
 
 36. Mayor, etc., v. Radecke, 49 184, 29 Pac. 1036. 
 
 Md. 218. And see Smith v. Bangs, 37. §§ 58-60 ante. 
 
 15 111. 399; Cape May, etc., R. Co. v. 38. New Home Sewing Mach. Co. 
 
 Cape May City, 35 N. J. Eq. 419. v. Fletcher, 44 Ark. 139. 
 
 A city which, by an illegal or- 39. Waters Peirce Oil Co. v. Lit- 
 
 dinance, requires a ditch con- tie Rock, 39 Ark. 412. On the same 
 
 strncted through lands embraced point see Portis v. Fall, 34 Ark. 375; 
 
 within the public domain of the Medical Institute v. Hot Springs, 34 
 
 United States, prior to such lands be- Ark. 559; Taylor v. Pine Bluff, 34 
 
 ing embraced within the city limits, Ark. 603. 
 
 to be so confined and reconstructed, 40. Northern Pac. R. Co. v. Can- 
 by fluming or otherwise, as to pre non, 49 Fed. 517. 
 
 875
 
 £ 576 Staying Actions am, Si its. 
 
 has commenced in the wrong forum, abandon his action at law, 
 and begin again in equity. 41 There an-, however, some 
 in which a defendant will be restrained from Betting up a certain 
 defense, on the ground that it would be inequitable; for instance, 
 whore the defendant has obtained, by fraud, a receipt or discharge, 
 of which he is seeking to avail himself in an action at law." So 
 where a mortgagee is induced, by the mortgagor's untrue repre- 
 sentations, as to the condition of the title to a parcel of land or 
 the correctness of antecedent proceedings, requisite to vest tho 
 title to it, to discharge the mortgage d< bt, and to give a release of 
 the mortgage, in consideration of a deed to said land, and the 
 mortgagee in fact gets nothing by the d ed. and his debt is not 
 paid, he may maintain an action to foreclose the mortgage and to 
 restrain the mortgagor from using the release as a defense therein, 
 \if innocent parties have not in the meantime acqnired an interest 
 /in the mortgaged premises. 43 
 
 §576. Same subject; enjoining married woman. — Where a 
 wife made her promissory note to her husband's order, and de- 
 livered it to him, to enable him to procure its discount, and with 
 the proceeds pay his own debt, and the husband applied for its 
 
 41. Jones v. Ramsey, 3 111. App. title to all the goods. Held, that a 
 
 303. A mortgagee of a stock of court of equity will not interfere to 
 
 goods, which by agreement had been restrain such legal defense to the ac- 
 
 intermingled and confused with after- tion at law. Tyson v. Weber, 81 Ala. 
 
 acquired goods, as to which latter he 470, 2 So. 901. 
 
 never had actual possession, and only 42. Stewart v. Railway Co., 2 
 an equitable title, brought an action DeG., J. & S. 319. If, in such a case, 
 ©f detinue, and seized all the goods, the receipt, though purporting to be 
 and while that action was pending in full accord and satisfaction, was 
 filed a bill in equity to foreclose the not intended to be so, and was not 
 mortgage, alleging his inability to fraudulently procured, and no fraud- 
 distinguish the original stock of ulent use is attempted, equity will 
 goods from those after-acquired; that not interfere, but will leave the facts 
 the defendant, the mortgagor, pos- to be determined by a jury. Lee v. 
 sesses and withholds the only evi- Railway Co., L. R. 6 Ch. App. 527. 
 dence by which they can be distin- 43. Lovell v. Wall, 31 Fla. 73, 12 
 guished; and praying that the de- So. 659. And see Grimes v. Kimball. 
 fendant may be enjoined from setting 3 Allen. 518; Freeholders v. Thomas, 
 up, as a defense in the detinue suit, 20 N. J. Eq. 39. Mistakes as to the 
 that the mortgagee has not the legal condition of one's title, or the cor- 
 
 876
 
 Staying Actions and Suits. 
 
 § 576a 
 
 discount to a bank official, who had notice that the note was made 
 without consideration and for discount, but did not have notice 
 that the proceeds were to be applied for the husband's benefit, 
 and the bank official offered to discount it by a check to the wife's 
 order, which the husband accepted, and afterwards procured his 
 wife to indorse and deliver it to him, she knowing that it was the 
 proceeds of the discount of her note, it was held that the wife was 
 estopped, and should be enjoined, from setting up against the bank 
 that she was a mere surety on the note, and that the note was a 
 contract made by her with her husband, and therefore void at law; 
 for to permit her to make such defenses would enable her to make 
 use of the State enabling statute to practice a fraud. 44 
 
 § 576a. Where adequate remedy at law.— As we have stated 
 elsewhere", it is a general rule that an injunction will not be granted 
 
 rectness or regularity of antecedent 
 proceedings, may be classed with mis- 
 takes of fact, and are properly re- 
 lieved from, where the equity is clear. 
 Gerdine v. Menage, 41 Minn. 417, 43 
 N. W. 91 ; Geib v. Reynolds, 35 Minn. 
 331, 28 N. W. 923: Cobb v. Dyer, 69 
 Me. 494. 
 
 44. Hackettstown Nat. Bank v. 
 Ming, 52 N. J. Eq. 156, 27 Atl. 920, 
 per Pitney, V. C: "The bank offi- 
 cers had the right to presume that 
 the wife was acquainted with mercan 
 tile law, and knew what would be 
 the effect of her indorsement of the 
 rheck. She is fairly chargeable with 
 such notice after signing a promis- 
 sory note as maker, and her evidence 
 shows that she understood the nature 
 and value of the check and the imme- 
 diate effect of her indorsement. The 
 drawing of the check to the order of 
 the wife, and handing it to the hus- 
 band, was a mere offer of a loan to 
 her on the note. Until she accepted 
 that offer, and used the check by in- 
 dorsing it, the contract of discount- 
 
 ing or lending was merely executory. 
 If she refused to accept it, the™ 
 would be no lending of money, and 
 her husband would be entitled, upon 
 a return of the check to the bank, to 
 have the note returned to him. But 
 the contract was fully completed 
 when she accepted and indorsed tha 
 check, and was then, in my judgment, 
 a contract of loaning from the bank 
 to Mrs. Ming; as clearly so, as it 
 seems to me, as if she had herself 
 presented the note for discount to the 
 bank officer, and had received the 
 proceeds of the discount in money in 
 her own hands, or had received credit 
 for it, as in Bank v. Craig, 1 N. J. 
 Law. Jour. 153, on the books of the 
 bank. She thereby became the bor- 
 rower of the money, and liable as 
 such to the bank; and she could not, 
 as against the bank, change her posi- 
 tion to one of suretyship by handing 
 the proceeds to her husband for hia 
 own personal use. To authorize her 
 to do so would be to enable her to 
 make use of the enabling statute to 
 
 877
 
 §577 
 
 Staying Actions and Suits. 
 
 to a party who has an adequate remedy at la\v. <5 And a person can 
 not invoke the jurisdiction of a court of equity to stay an action 
 at law where the remedy at law is adequate and complete. 46 But 
 though there may bo a remedy at law yet if the remedy at equity 
 is more complete and perfect than that at law a court of equity 
 will generally enjoin an action at law so that the enlire controversy 
 may be settled in one proceeding in the equitable court. 47 
 
 § 577. Defensible action at law not enjoined. — Where defend- 
 ant in a pending action at law has a good defense thereto which is 
 equally effective in that action as in equity, it is a general rule 
 that the action will not be enjoined/ 8 and still lcs6 where the 
 
 practice a fraud. But as the form 
 of the contract is one of a promise by 
 the wife to the husband, by him as- 
 signed to the bank, the latter can 
 have no remedy at law, but must 
 come to this court for relief. Bunk v. 
 Brewster, 49 N. J. Law, 23', 12 Atl. 
 769; Gould v. Gould, 35 N. J. Eq. 37; 
 Id. 562. I think it worthy of re- 
 mark that if the defendant had so 
 framed the rule opening the judg- 
 ment as to confine her defense at law 
 to the merits, and had refrained from 
 pleading that the contract was be- 
 tween husband and wife, and there- 
 fore void, the merits of the case 
 might, as it seems to me, have been 
 dealt with at law. It is certainly 
 wholly the fault of the defendant 
 that the complainant was driven into 
 this court, and the result is that she 
 must be bound by its finding. Hav- 
 ing been deprived of the opportunity 
 to prove its case at law, and com- 
 pelled to prove it here, or not at all, 
 it would be gross injustice to com- 
 pel it to prove it over again in the 
 law court, in order to obtain the 
 fruit of its judgment there. I will 
 advice a decree in favor of complain- 
 ant, that the defendant De enjoined 
 from setting up any defense at the 
 
 trial of the action at law, and that 
 complainant recover its costs." 
 
 45. See § 26 herein. 
 
 46. Machem v. Machem, 28 Ala. 
 374. See following section herein. 
 
 47. National Bank of Athens v. 
 Carlton, 96 Ga. 469, 23 S. E. 388; 
 Lehigh Valley R. R. Co. v. Society for 
 Establishing Useful Manufactures, 30 
 X. J. Eq. 145; Henwood v. Jarvis, 27 
 N. J. Eq. 247. 
 
 48. United States. — Scottish Union 
 & N. I. Co. v. Bowland, 196 U. S. 
 611, 25 S. Ct. 345, 49 L. Ed. 619; 
 Dewees v. Reinhard, 165 U. S. 386, 
 17 S. Ct. 340, 41 L. Ed. 757; Camp 
 bell v. Golden Cycle M. Co., 141 Fed. 
 610, 73 C. C. A. 260; Palmer Pneu- 
 matic T. Co. v. Lozier, 69 Fed. 346: 
 Northern Pac. R. Co. v. Cannon, 49 
 Fed. 517. 
 
 Alabama. — Murray v. Barnes (Ala. 
 1906), 40 So. 348; Johnson v. Old- 
 ham (Ala. 1906), 40 So. 213; Rucker 
 v. Morgan, 122 Ala. 308, 25 So. 242: 
 Simmons v. Williams, 27 Ala. 507. 
 
 California. — Waymire v. San Fran- 
 cisco & S. M. Ry. Co., 112 Cal. 646. 
 44 Pac. 1086. 
 
 Connecticut. — Welles v. Rhodes, 59 
 Conn. 498, 22 Atl. 286; Hood v. New 
 York & N. H. R. Co., 23 Conn. 609. 
 
 878
 
 Staying Actions and Suits. § 57T 
 
 disclosed defense is without merits both in law and equity. Thu* 
 equity will not enjoin the prosecution of a legal action on a con- 
 tract for sinking a well because of the contractor's misrepresenta- 
 tions as to its cost, and the depth it would be necessary to go in 
 order to get a sufficient water supply, as these are mere expres- 
 sions of opinion, and no ground of defense; and a misrepresenta- 
 tion as to the price for which the contractor has done similar work 
 for third persons may be set up as a defense to the legal action, 
 and therefore equity will not restrain its prosecution. 49 And non 
 
 Delaware. — Burton v. Miller, 6 Del. 
 Ch. 403, 33 Atl. G75. 
 
 Florida. — Peacock v. Irvine (Fla. 
 1907), 42 So. 894; Peacock v. Feas- 
 ter (Fla. 1906), 42 So. 889; Cohen v. 
 L'Engle, 29 Fla. 579, 11 So. 47. 
 
 Georgia. — Waters v. Waters, 124 
 Ga. 349, 52 S. E. 425; Mallory v. 
 Cowart, 90 Ga. 000, 16 S. E. G5S. 
 
 Illinois. — Cook County v. Chicago, 
 158 111. 524, 42 N. E. 67; McCormick 
 v. Little, 85 111. 62, 28 Am. Rep. 010; 
 McCulIon v. Chidester, 63 111. 477; 
 Mexican Asphalt Co. v. Mexican As- 
 phalt Par. Co., 61 111. App. 354. 
 
 Indiana. — Martin v. Orr, 96 Ind. 
 27; Hartman v. Heady, 57 Ind. 545. 
 
 Iowa. — Smith v. Short, 11 Iowa, 
 623. 
 
 Maryland. — Mountain Lake Park 
 Ass'n v. Shartzer, 83 Md. 10, 34 Atl. 
 536; Bowen v. Gent, 54 Md. 555. 
 
 Massachusetts. — Pay son v. Lamson, 
 134 Mass. 593, 45 Am. Rep. 348. 
 
 Michigan. — Pardridge v. Brennan, 
 C4 Mich. 575, 31 N. W. 524. 
 
 Mississippi. — New Orleans Shell 
 Lime Mfg. Co. v. Lowenstein, 11 So. 
 187. 
 
 New Jersey. — United New Jersey 
 R. & C. Co. v. McCulley (N. J. 1904), 
 59 Atl. 229; Screw Mower & Reaper 
 Co. v. Mettler, 26 N. J. Eq. 264; Em- 
 ery v. Vansickel, 15 N. J. Eq. 144. 
 
 New York. — Savage v. Allen, 54 N. 
 
 Y. 458; Minturn v. Farmers Loan &. 
 T. Co., 3 N. Y. 498; Bowman v. Pof- 
 fenberg, 103 N. Y. Supp. 245; Conk- 
 lin v. Secor Sew. Mach. Co., 55 How. 
 Prac. 269; Kip v. Mew York & H. R. 
 Co., G Hun, 24; In re Jay, 6 Abb. 
 Prac. 293; Bliss v. Murray, 7 N. Y. 
 Supp. 917, 17 Civ. Proc. R. 64. 
 
 Rhode Island. — Wilbor v. Watter- 
 son, 8 R. I. 166. 
 
 South Carolina. — Schnell v. Schro- 
 der, Bailey's Eq. 334. 
 
 Tennessee. — Huddleston v. Wil- 
 liams, 1 Heisk. 579. 
 
 Texas. — Gibson v. Moore, 22 Tex. 
 611; York v. Gregg, 9 Tex. 85. 
 
 Vermont. — Westminster v. Wil- 
 lard, 65 Vt. 266, 26 Atl. 952; Saf 
 ford v. Gallup, 53 Vt. 291; Holmes v. 
 Clark, 46 Vt. 22. 
 
 Virginia. — Virginia Min. Co. v. 
 Wilkinson, 92 Vt. 98, 22 S. E. 839. 
 
 West Virginia. — Moore v. McNutt, 
 41 W. Va. 695, 24 S. E. 682. 
 
 Wisconsin. — Pennoyer v. Allen, 50 
 Wis. 308, 6 N. W. 887. 
 
 See § 27 herein. 
 
 Action on a bond will not be en- 
 joined because it was obtained by 
 fraud, that being a defense at law. 
 Dorsey v. Monnett (Md.), 20 Atl. 
 196; Edelin v. Sanders, 8 Md. 130. 
 
 49. Roemer v. Condon, 45 N. J. 
 Eq. 234, 19 Atl. 604. 
 
 879
 
 § 577 
 
 Staying A< nova am> Si i re. 
 
 performance of a contract for the sale of lands or the fact that the 
 contract was void under the statute of frauds are not grounds for 
 enjoining an action for the price of the land as these matters may 
 be set up in defense to such action. 50 Xor will equity enjoin an 
 action at law brought on a satisfied judgment as the defense is 
 available at law, 51 or enjoin an action for the appointment of a 
 receiver where the objection thereto is so available. 52 And thu 
 general rule has also been applied in patent cases,' 3 and in actions 
 of ejectment, 64 and of forcible entry and detainer. 5 "' And an action 
 to recover taxes from a foreign corporation on personal property 
 within the State will not be enjoined on the ground of the non- 
 liability of the corporation as such objection is available as a 
 ■ 1< I'i use to the action at law. 56 And equity will not interfere by 
 injunction to restrain proceedings at law when all the matters of 
 defense are as available at law as in equity, although complicated 
 and more difficult of presentation. 57 Thus a suit in equity for 
 
 50. Virginia Min. Co. v. Wilkinson, 
 92 Va. 98, 22 S. E. 839. 
 
 51. Clark v. Clapp, 14 R. I. 248. 
 
 52. Columbia Bldg. & L. Ass'n v. 
 Grange, 77 Fed. 798. 
 
 5.3. Palmer Pneumatic Tire Co. v. 
 Lozier, 69 Fed. 346. 
 
 54. United States. — Campbell v. 
 Golden Cycle M. Co., 141 Fed. 610, 73 
 C. C. A. 260. 
 
 Alabama. — Murray v. Barnes (Ala. 
 1906), 40 So. 348; Holt v. Pickett, 
 111 Ala. 362, 20 So. 432. 
 
 Arkansas. — Earle's Aduix. v. 
 Horles, Admr., 31 Ark. 473. 
 
 Georgia. — Alexander v. Biggers, 43 
 Ga. 161. 
 
 Illinois. — Cook County v. Chicago, 
 358 111. 524, 42 N. E. 67. 
 
 Maryland. — Mountain Lake Park 
 Ass'n v. Shartzer, 83 Md. 10, 34 Atl. 
 536; Bowen v. Gent, 54 Md. 555. 
 
 A'euj Jersey. — Morris Canal & B. 
 Co. v. Dennis, 12 N". J. Eq. 249. 
 
 Pennsylvania.— Appeal of Pittsburg 
 
 <fe A. D. Y. Co., 123 Pa. St. 250, 16 
 Atl. 625. 
 
 Vermont. — Barrett v. Sargeant, 18 
 Vt. 365. 
 
 55. Freeman v. Temanus, 12 Fla. 
 393; Winterfield v. Stauss, 24 Wis. 
 394. 
 
 56. Scottish Union A N. I. Co. v. 
 Bowland, 196 U. S. 611, 25 S. Ct. 345, 
 49 L. Ed. 619. 
 
 57. Pullman Palace Car Co. v. Cen- 
 tral Transp. Co., 34 Fed. 357. The 
 defendant in an action upon a judg- 
 ment which was void for want of ser- 
 vice was enjoined from setting up the 
 invalidity thereof, because, while pro- 
 curing a discharge in bankruptcy, ho 
 obtained substantial benefits by con- 
 tending that the judgment was valid. 
 Held, that he was not entitled to a 
 suspension of the injunction or to a 
 stay of proceedings in that action 
 pending an appeal from the injunc- 
 tion decree, since, in case of reversal 
 the court would so mould its judg 
 
 S80
 
 Staying Actions and Suits. § 578 
 
 an injunction to restrain the prosecution of an action of trover 
 for goods sold and delivered, brought against complainant by the 
 special administrator of the estate of a person deceased, on the 
 ground that the complainant had paid the purchase price of the 
 goods, after the death of the intestate, to a clerk of the firm of 
 which the intestate was the principal member, on the assurance 
 that he had authority to sell and receive payment for the goods, 
 and in the belief that he was. a partner in the firm, presents no 
 grounds for equitable interference, as the facts are available as a 
 defense to the action of trover. 58 And where a bill is filed to set 
 aside void securities and complainant is afterwards sued at law on 
 them, such suit will not be enjoined, as he has a good legal defense 
 therein. 59 And an action will not be enjoined for the reason that 
 defendant is not permitted to make a defense therein, the right 
 to which he has forfeited by his own misconduct. 60 
 
 § 578. Same subject; court's discretion. — While an injunction 
 against an action at law may sometimes be allowed and retained 
 in aid of the main purpose of the bill and to settle the whole con- 
 troversy in one suit, notwithstanding there may be a valid defense 
 at law to the suit enjoined, it is not matter of absolute right that 
 the injunction should be so retained. 61 And an action at law to 
 enforce a forfeiture on account of the breach of a condition prece- 
 dent will not be restrained where the plaintiff in such action him- 
 
 ment, should the plaintiff obtain one, also sued for a divorce, and pending 
 in the action at law commenced by this action the decree divorcing him 
 her, as to allow the defendant the from his former wife was, at her in- 
 full advantage of his defense. Wake- stance, annulled in toto, which he 
 lee v. Davis, 48 Fed. 612. sought to set up as a defense, in the 
 
 58. Pardridge v. Brennan, 64 Mich, action by his second wife, but waa 
 575, 31 N. W. 524. refused leave to file an amended or 
 
 59. New York, etc., Co. v. Ameri- supplemental answer for that pur- 
 can, etc., Co., 11 Paige (N. Y.), 384. pose. Held, no ground to enjoin the 
 
 60. VonProchazka v. VonPro- second wife's action. And see Lam- 
 chazka, 3 N. Y. Supp. 301. In this bert v. Lambert, 5 Ir. Eq. 339. 
 
 case it appeared that plaintiff was 61. Hartley v. Matthews, 96 Ala, 
 
 divorced from his wife at her suit 224, 11 So. 452. 
 and married again. His second wife 
 
 881 
 56
 
 $ 579 Staying Actions and Suits. 
 
 self caused or knowingly aided in causing the failure to perform, 
 as this fact would be available in defense to such action at law." 
 
 §579. Same subject; summary proceedings. — Under a Code 
 provision that before final order summary proceedings shall not be 
 stayed by any court or judge, except in a case where an injunction 
 would be granted to stay the proceedings in an action of ejectment, 
 an injunction should not be granted on the grounds that the peti- 
 tion was not properly verified, or did not describe the premises, 
 or did not state the interest of the petitioner, or that the defense 
 of another action pending was not allowed, as all these are legal 
 defenses, available on the trial, and reviewable on appeal. 53 And 
 it has been decided that the only case in which the court will inter- 
 fere by injunction to stay summary proceedings between landlord 
 and tenant is first, where there has bet n fraud of collusion ; second, 
 where the justice has not obtained jurisdiction, by want of tho 
 necessary preliminary steps or other causes, and third, where the 
 tenant from the peculiar circumstances of the case, is precluded 
 from setting up his defense before the justice. 64 Where one com- 
 mences an action by warrant to turn a party out of certain land, 
 
 62. Wingo v. Hardy, 94 Ala. 184, conditions would be to permit the 
 
 191, 10 So. 659, per Stone, C. J.: wrong-doer to take advantage of his 
 
 " Does the bill contain equity, in that own wrong. McLendon v. Godfrey, 3 
 
 phase of it which sought and obtained Ala. 181; Sprague v. Morgan, 7 Ala. 
 
 an injunction against the prosecution 952; Eads v. Muipliy, 52 Ala. 520; 
 
 of the suits in unlawful detainer? If Borst v. Simpson, 90 Ala. 373, 7 So. 
 
 Hardy was hindered and prevented in 814. This defense is legal, and, if 
 
 the performance, through Perkins, of proved, will be an answer to the ac- 
 
 bis contract to have the works com- tions of unlawful detainer. Under 
 
 pleted and in operation by October these principles the bill of complaint 
 
 15, 1890, by collusion and fraudulent in this case shows no ground for 
 
 combination between Wingo and Per- equitable relief, and the injunction 
 
 kins, could that afford him excuse for ought to have been dissolved on that 
 
 appealing to the chancery court for ground." 
 
 relief? We think not. No one can in- 63. Bliss v. Murray, 7 N. Y. Supp, 
 
 sist on a forfeiture for failure to per- 917, 17 Civil Proc. Rep. 64; Bean v. 
 
 form a condition precedent, if he him- PettingfU, 2 Abb. Pr. (N. S.) 58, 
 
 self has caused, or intentionally or aff'd 7 Robt. 7. 
 
 ■knowingly aided in causing the 64. Bokee v. Hamersley, 16 How- 
 
 failure. To allow a recovery in such Prac. (N. Y.) 461. 
 
 882
 
 Staying Actions and Sots. § 580 
 
 under the Georgia Code providing for the ejectment of a tenant 
 holding over, and the party against whom it is brought files a bill 
 for injunction, alleging that, by reason of her poverty she is unable 
 to give the bond provided in cases where the tenant wishes to 
 retain possession," and denying the plaintiff's title, or that he is 
 her landlord, and setting forth her title independent of him, and 
 alle-ing that he is insolvent, and unable to respond in damages 
 for his wrongful act in turning her out of possession of the land, 
 a demurrer to the bill for want of equity, and because complain- 
 ant has a full and adequate remedy at law, is properly overruled 
 But in such a case the action by warrant could probably not be 
 enjoined if the existence of the relation of landlord and tenant 
 were not denied and the landlord's title was undisputed. 67 
 
 §580 Same subject; mandamus proceedings—Mandamus 
 proceedings will not be enjoined when the defenses against such 
 proceedings can be made therein, and a special appeal is provided 
 by statute. 68 The English rule has been that an injunction would 
 not be granted to restrain mandamus proceedings in a court of 
 law. 69 And the rule in this country is that the double remedy of 
 
 65. Sections 4077-4079. 69. Montague v. Dudman 2 Ves. 
 
 66. Gilmore v. Wells, 78 Ga. 197. Sen. 396, 398, per Hardwicke, Ch^ 
 
 67 Hall v. Holmes, 42 Ga. 179; "This court has no jurisdiction to 
 Cherry v Ware, 63 Ga. 289; Huff v. grant an injunction to stay proceed- 
 Marknam, 71 Ga. 557. ing" on a mandamus . . . The rea- 
 
 68 People v. Wasson. 64 N. Y. son is that a mandamus is- not a 
 167 170, per Curium: "Wasson had writ remedial or mandatory. It is 
 commen ed proceedings to enforce vested in the King's Superior Court 
 payment of the awar/by mandamus. of Common Law to com P < d in ienor 
 in those proceedings the auditor, on courts to do something relative to the 
 behalf of this State, could have set public. That court has a grea lati- 
 vip any defense legal or equitable, tude and discretion in cases o that 
 ^hich the State had going to the va- kind; can judge of a 1 tie circun, 
 lidity of the award. There are no al- stances, and is not bound by such 
 legation, in the complaint, and no strict rules as in cases of private 
 p ;oo that plaintiff's right could not rights. That therefore, -st be given 
 he perfectly protected in those pro- up as no color for such an injunc- 
 ceedings, and they should not, there- tion." 
 
 fore, be enjoined in a suit in equity." 
 
 883
 
 §531 
 
 Staying Actions and Suite. 
 
 injunction and mandamus is not appropriate for one and the same* 
 
 70 
 
 case. 
 
 § 581. Enjoining condemnation proceedings Where con- 
 demnation proceedings are sought to be enjoined on the ground 
 that the land had already been so appropriated to a public use by 
 defendant as not to be available to plaintiff, the injunction is 
 held not to be properly allowed, since that defense could have 
 been made in the condemnation proceedings. 71 And the general 
 rule is that condemnation proceedings will not be enjoined where 
 the objection to them can be made in the court where those pro- 
 ceedings are taken. 72 Thus it is no ground for enjoining the 
 prosecution of condemnation proceedings that there has been a 
 previous condemnation of the same land for the same purpose, 
 resulting in the verdict of a jury assessing compensation, since 
 that fact constitutes an adequate legal defense, which can be taken 
 
 70. Whigham v. Davis, 92 Ga. 574, 
 18 S. E. 548; Dibble v. Pease, 59 Ga. 
 618. See First Nat. Bank v. Society 
 for Savings, 80 Fod. 581, 25 C. C. A. 
 466. See, also, § 9 herein. 
 
 71. Waterloo Water Co. v. Hoxie, 
 89 Iowa, 317, 56 N. W. 499, per 
 Granger, J.: "Appellees insist that 
 equity will not entertain the suit to 
 determine the merits of the case pre- 
 sented, because the plaintiff has other 
 available remedies to which it should 
 resort, and among them it is urged 
 that the proceeding which it seeks to 
 enjoin affords such a remedy. The 
 particular ground upon which the aid 
 of a court of equity is invoked is that 
 the proceedings to condemn the land 
 are unauthorized, because the land is 
 already devoted to a public use, and, 
 as we understand, that it would be 
 unlawful to proceed to condemn it, 
 even if needed by the railway com- 
 pany. The proposition is one in dis- 
 pute between the parties, and is to 
 be settled by adjudication. Could 
 
 it be properly determined in the con- 
 demnation proceeding? It seems to 
 us that the question is quite definitely 
 answered in Railway Co. v. Donnell, 
 77 Iowa, 221, 42 N. W. 176. . . . 
 Our conclusion is that in the proceed- 
 ings sought to be enjoined ample rem- 
 edy will be afforded to protect plain- 
 tiff against any unlawful appropria- 
 tion of the land, and that the injunc- 
 tion was properly dissolved. See, in 
 support of the conclusion to a 
 greater or less extent, Central Iowa 
 R. Co. v. Moulton & A. R. Co., 57 
 Iowa, 249, 10 N. W. 639; Stough v. 
 Railway Co., 71 Iowa, 641, 33 N. W. 
 149; Kip v. Railroad, 6 Hun, 24. The 
 order of the District Court dissolving 
 the injunction is affirmed." See, also, 
 the important case of Rockwell v. 
 Bowers, 88 Iowa, 88, 55 N. W. 1. 
 
 72. Western Maryland R. Co. v. 
 Patterson, 37 Md. 125, per Bowie, J.: 
 " There is no necessity for an injunc- 
 tion when the courts peculiarly 
 vested with authority over the sub- 
 
 884
 
 Staying Actions and Suits. 
 
 § 582 
 
 advantage of by motion in the second condemnation suit. 73 And 
 condemnation proceedings should not be enjoined while they are 
 still pending in a special statutory tribunal, and there is not only 
 a right of appeal from the commissioners' report, but an ample 
 legal remedy by certiorari. 74 
 
 § 582. Same subject; where injunction proper. — Where a rail- 
 road company institutes proceedings to condemn land, and such 
 proceedings are in clear violation of a prior contract between the 
 railroad company and the land owner, the latter has a standing in 
 equity to enjoin the proceedings until the covenants of the contract. 
 
 ject are competent to relieve, and it 
 is a sufficient ground for refusing it 
 that the complainant has an ample 
 remedy at law." 
 
 73. Chicago R. T. & P. Ry. Co. v. 
 Chicago City, 143 111. 641, 32 N. E. 
 178, per Baker, Jr.: "Even without 
 regard to the statute that the first 
 assessment shall be final and conclu- 
 sive as to the amount of the damages, 
 both reason and authority would lead 
 to the conclusion that such must be 
 the law. Hupert v. Anderson, 35 
 Iowa, 578; City of St. Joseph v. 
 Hamilton, 43 Mo. 282 ; Rogers v. City 
 of St. Charles, 3 Mo. App. 41." 
 
 74. Pennsylvania R. Co. v. Na- 
 tional Docks, 56 Fed. 697, per Ache- 
 son, J. : " Nothing is better settled 
 than the rule that in a matter not 
 purely ministerial, but involving 
 judgment and discretion, the courts 
 will not control public officers or in- 
 ferior tribunals in the exercise of 
 their functions. Gaines v. Thompson, 
 7 Wall. 347. Only after the final deci- 
 sion of such special tribunal can ju- 
 dicial authority be regularly invoked 
 for the ratification of errors. Id.; 
 State v. Medical Society, 35 N. J. 
 Law, 200. Furthermore, here not 
 only is there the right of appeal from 
 the report of the commissioners, but 
 
 an ample legal remedy, by certiorari, 
 is open to the complainant. Van- 
 wickle v. Railroad Co., 14 N. J. Law, 
 162; State v. Lord, 26 N. J. Law, 
 140; Swayze v. Railroad Co., 36 N. 
 J. Law, 295; Lehigh Val. R. Co. v. 
 Dover & H. R. Co., 43 N. J. Law, 528. 
 Says Chancellor Green, in Hoagland 
 v. Township of Delaware, 17 N. J. 
 Eq. 106, 114: 'The Supreme Court 
 exercises a supervision and control 
 over all inferior tribunals and cor- 
 porations, and may control the exer- 
 cise of their powers, so far as may 
 be necessary to prevent abuse, to pro- 
 tect the rights of the citizens, and re- 
 dress the wrong of every party ag- 
 grieved by their irregular and unlaw- 
 ful action.' And because the remedy 
 at law, by certiorari, is adequate and 
 complete, the courts of New Jersey 
 refuse equitable relief in the class of 
 cases to which the present case be- 
 longs. Hoagland v. Township of Del- 
 aware, supra; Hoboken Land & Imp. 
 Co. v. City of Hoboken, 31 N. J. Eq. 
 461. But, if the State courts will not 
 afford the complainants relief in 
 equity, neither should the Circuit 
 Court of the United States, the legal 
 remedy being ample. Ewing v. City 
 of St. Louis, 5 Wall. 413." 
 
 885
 
 583 Staying Actions and Suits. 
 
 arc performed or the contract rescind* d. 1 And where a land 
 owner contracted to convey land to a railroad company for its 
 right of way od condition that it should erect and maintain a side 
 track and certain buildings thereon, and the company took posses- 
 sion, built its road, and attempted the performance of the condi- 
 tion, and there was an honest difference of opinion between it and 
 the owner as to whether the condition had been fully performed, 
 and the owner instituted condemnation proceedings, as if no con- 
 tract had been made, and the railroad company applied for a per- 
 petual injunction against the maintenance of such proceedings, it 
 was held that it was proper to restrain the owner from prosecuting 
 his action, until the merits of the injunction suit were determined, 
 as it was doubtful if the owner ought not to have resorted to an 
 action for damages, or an action of ejectment. 7 * 
 
 §583. Enjoining defensible actions at law; qualification of 
 rule. — In some cases it is decided that while a defendant in an 
 •action at law is quite freely permitted to come into a court of 
 equity for some discovery or particular relief, which will the better 
 .enable him to make his defense at law, 77 yet where the object is 
 to transfer the litigation to the court of equity, the facts must 
 be very special, and the equities very clear and urgent to authorize 
 an injunction to stay the legal proceedings before judgment, for 
 the reason that the bill is under the control of the complainant 
 until decree rendered, and may be dismissed after years of delay, 
 leaving the original plaintiff still to proceed at law. 78 If the de- 
 fenses set up in the bill to the defendant's claim are the same as 
 those made in the suit at law, or are such as can only be made in 
 equity, an injunction ought not, ordinarily, to be granted before 
 
 75. Semple v. Cleveland & P. R. Ch. 635; Crane v. Bunnell, 10 Paige 
 R. Co., 172 Pa. St. 369, 33 Atl. 564. (N. Y.), 340; Williams v. Sadler, 4 
 
 76. Harvey v. Kansas N. & D. Ry. Jones Eq. (N. C.) 378; Hunt v. 
 Co., 45 Kan. 228, 25 Pac. 578. And Sneed, Phill. Eq. (N. C.) 351. 
 
 see Kansas, etc., R. Co. v. Hopkins, 78. Turner v. American Bapt. 
 
 18 Kan. 494; St. Joseph, etc., R. Co. Union, 5 McLean, 349; Melick v. 
 
 v. Dryden, 11 Kan. 186. Drake, 6 Paige (N. Y.), 471; 
 
 77. Chadwell v. Jordan, 2 Tenn. Mathews v. Douglas, Cooke, 136. 
 
 886
 
 Staying Actions and Suits. § 584 
 
 judgment at law; that is, it should be to stay execution, and not 
 the trial. 79 And in such cases an injunction will not be granted to 
 restrain proceedings at law, unless the party seeking it will close 
 the legal contest by giving judgment in the action at law, with a 
 stay of execution, the judgment to be dealt with as the court may 
 thereafter order. 80 When a defendant at law has been granted an 
 injunction upon condition of his confessing judgment therein, and 
 the injunction is dissolved for want of equity, such judgment 
 should be required to be withdrawn in order that the plaintiff at 
 law may proceed to try his action at law upon the merits. 81 
 
 § 584. Partition suits. — Where a bill to quiet title is filed, 
 showing that complainant is in possession of the land described, 
 with other allegations sufficient to entitle him to the relief claimed, 
 and afterwards defendants file a bill for the partition of the same 
 lands, to which the complainant in the first bill is not made a 
 party, such complainant may, without becoming a party to the 
 partition suit, have it restrained until his suit is determined." 
 And where, after a sister of deceased began her action for parti- 
 tion, the executor instituted his action against the public escheator 
 for the partition of the same property, ignoring her claim, and 
 then answered in her action denying that she had any interest in 
 the property, she was allowed to file a supplemental complaint 
 alleging these proceedings, and the executor was enjoined from 
 proceeding with his action, and especially so, after notification of 
 escheat filed by the escheator. 83 And where complainant has paid 
 the whole price of real property, and taken the title to himself and 
 the defendant jointly, on the latter's agreement to pay one half of 
 
 79. Mutter v. Hamilton, 2 Hayw. of the rule in the text, where an in- 
 
 (N. C.) 346; White v. Steinwacks, 19 junction to stay a suit at law upon a. 
 
 v ' g5 note was asked for. Chadwell v. Jor- 
 
 80 Jones v. Bassett, 2 Russ. 405; dan, 2 Tenn. Ch. 635. 
 Drummond v. Pigou, 2 Myl. & K. 81. Great Falls M'f'g Co. v. Henry, 
 
 168; Warwick v. Norvell, 1 Leigh, 25 Gratt. (Va.) 575; Hooper v. 
 
 96 • ' Barnard v. Wallis, 1 Cr. & Ph. Cooke, 25 L. J. Ch. 467. 
 85- Mackintosh v. Wyatt. 3 Hare, 82. McCullough v. Absecom Land 
 
 562- Carroll v Sands, 10 Paige (N. Imp. Co. (N. J. Eq.), 10 Atl. 606. 
 Y.),' 298; Ham v. Schuyler, 2 Johns. 8.3. Muir v. Thomson, 28 S. C. 499. 
 
 Ch (N Y.) 140. See an application 
 
 887
 
 § 585 Staying Actions and Suits. 
 
 the price, and complainant has also paid taxes on the property and 
 made improvements, the defendant may be enjoined from prosecut- 
 ing an action for partition until he repays what complainant has 
 advanced for him. 84 As real estate sold by a commissioner in an 
 action for partition, is subject to any prior judgment lien thereon, 
 he cannot, in the absence of fraud or warranty in the sale, enjoin 
 a sale by the sheriff to satisfy such lien. 85 And equity will not 
 interfere to set aside an award for partition on the ground that it 
 is void if its invalidity will appear on the face of the papers when 
 any right is claimed on it. 86 And a court of equity will not restrain 
 proceedings at law for partition, unless such restraint becomes 
 necessary to protect some party thereto from fraud, or to secure to 
 him some clear right which the law court cannot protect. 87 Tin- 
 New York courts will restrain one by injunction from prosecuting 
 a partition suit in another State, in violation of an agreement that 
 the suit should be brought in New York, and his objections that 
 the New York courts cannot partition lands in other Stat* ■-. and 
 that there are infants who were not parties to the agreement, are 
 sufficiently answered by the fact that he, as a party to the agree 
 ment, is estopped from denying the jurisdiction of the courts of 
 New York. 88 
 
 §585. Same subject; concurrent jurisdiction. — The original 
 jurisdiction of courts of equity to decree partition of land between 
 coparceners and tenants in common, resting on the capacity of those 
 courts to adjust the equities of parties, and grant more complete 
 relief than courts of law, 89 was not taken away by the Alabama 
 Code; 90 but if the probate judge first acquires jurisdiction by the 
 filing of a proper petition, a court of equity will not interfere with 
 its exercise unless upon facts of special equitable cognizance, which 
 
 84. Maloy v. Sloan, 44 Vt. 311. 87. Hall v. Piddoek, 21 N.J.Eq. 311. 
 
 85. Wood v. Winings, 58 Ind. 322. 88. Bowers v. Durant, 43 Hun (N. 
 And see Hammers v. Hanrick, 69 Tex. Y. ) , 348. 
 
 412. 89. Deloney v. Walker, 9 Port. 
 
 86. Meloy v. Dougherty, 1G Wis. (Ala.) 497. 
 
 269. 90. §§ 3497-3513. 
 
 888
 
 Staying Actions and Suits. § 586 
 
 render the statutory probate jurisdiction inadequate. 91 But if 
 one tenant in common of lands makes improvements thereon, with 
 the express authority or the consent of his cotenant, a court of 
 equity will, in decreeing partition, give him the benefit of his 
 improvements, by assigning to him that part of the land on which 
 they are situated, and in such case may enjoin at his instance, pro- 
 ceedings before the probate judge, asking a sale for diversion. 92 
 
 § 586. Enjoining action of ejectment; reforming deed; where 
 vested remainder. — An action of ejectment will not be enjoined 
 on the ground that defendant's deed, a link in the chain of plain- 
 tiff's paper title, was not intended to include the lands in con- 
 troversy, since the same defense might be made to the action, it 
 further appearing that, should defendant fail on the merits in 
 the injunction suit, she might still defend on the ground of adverse 
 possession at the time of the intermediate conveyances. Another 
 reason is that ejectment deals with the right of possession, which 
 may depend on other things besides title, and so the determination 
 of the title in the injunction suit would not necessarily settle 
 the action of ejectment. 93 But where one knowing what lands 
 were intended to be conveyed to a grantee by a deed to him re- 
 ceives a conveyance from such grantee containing the same 
 description and claiming thereunder, brings ejectment to recover 
 lands not intended to be conveyed to such grantee, but included 
 by mistake in the description, he may be made party to an action 
 for the reformation of the deeds, and may be restrained from 
 prosecuting his ejectment suit. 94 For a deed may be reformed, 
 
 91. Waring v. Lewis, 53 Ala. 615; this action she makes her cause of 
 Moore v. Lesueur, 33 Ala. 237; King complaint, viz: the fraud or mistake 
 v. Smith, 15 Ala. 270. in the deed; and if she shall satis- 
 
 92. Wilkinson v. Stuart, 74 Ala. factorily establish the same it will 
 
 198. See Ward v. Corbitt, 72 Ala. seem to defeat the plaintiff herein. 
 438; Pope v. Whitehead, 68 N. C. Phillips v. Gorham, 17 N. Y. 270 
 
 199. VanDeusen v. Sweet, 51 N. Y. 378 
 
 93. Bullard v. Bearss, 3 N. Y. Lattin v. McCarty, 41 N. Y. 107 
 Supp. 683, per Kennedy, J. : " In Pitcher v. Hennessey, 48 N. Y. 422 
 •the ejectment action the defendant Mandeville v. Reynolds, 68 N. Y. 
 therein and the plaintiff in this could 543." 
 
 interpose by way of an equitable 94. Bush v. Hicks, 60 N. Y. 298. 
 
 defense the same matter which in 
 
 889
 
 § O.^r Staying A.otiohs ajud Sum , 
 
 not only wh< re there is a mistake in the omission or insertion of 
 words, contrary to the intention of the parties, but also whero 
 they, understanding the language used in the description, believe 
 it to correspond with the aetual boundaries of the land intended 
 to be conveyed, but are mistaken, as the mistake is one of fact and 
 not of law. 95 And it is no abuse of the discretion of the court t/> 
 grant an injunction against an action of ejectment, upon the peti- 
 tion of one who alleges that she has a vested remainder in the 
 land in dispute, after the life estate of defendant in ejectment; 
 that the latter has acknowledged service in the ••jectraent suit, but 
 has concealed the pendency of the suit from petitioner; and that 
 petitioner believes that a fraudulent conspiracy exists between 
 the parties in ejectment to suffer plaintiiT- h> recover, and to allow 
 them to buy the land at a .-ale for certain taxes which have never 
 been paid, although the tenant enjoys a large income from the 
 land, in order to interpose a tax title to defeat petitioner's rights. 9 * 
 
 § 587. Enjoining ejectment of a possessor under contract of 
 sale. — Where the owner of land orally agreed to convey it to a 
 railroad company, for a price which was paid to him, and staked 
 out the land, and moved back his fences, and the company occu- 
 pied it for twenty years and made valuable improvements thereon, 
 it was held that equity would decree a specific performance of the 
 oral agreement and would enjoin such former owner from prosecut- 
 ing ejectment suits against the company to recover the land in 
 controversy; and also that it was not laches for the company in 
 possession of the land under the parol contract to wait until he was 
 sued before bringing his suit for specific performance and the 
 injunction, even though he waited twenty years. 97 
 
 95. Bush v. Hicks. 60 N. Y. 298; vey the eight acres of land for certain 
 Johnson v. Taber, 10 N. Y. 319; De- specified consideration, which he re- 
 Rieiner v. DeCantillon, 4 Johns. Ch. ceived, and the railroad company en- 
 85. tered into the possession of the land 
 
 96. Kendy v. Beatty, 82 Ga. 669, under the agreement, and made or 
 10 S. E. 267. caused to be made lasting and vain 
 
 97. Hall v. Peoria R. Co., 143 111. able improvements, a court of equity 
 163, 32 N. E. 598, per Craig, J.: "If will enforce the specific performance 
 the defendant. Hall, agreed to con- of the contract, although the agree- 
 
 890
 
 Staying Actions and Suits. 
 
 §588 
 
 § 588. Ejectment of tenant when enjoined. — In an action of 
 ejectment against a tenant in possession, when the defendant's 
 landlord intervenes, no equitable issues are disclosed by the land- 
 lord's pleadings where nothing more is averred than an unexecuted 
 design, by collusion between the tenants of the intervenor and 
 the plaintiff, to allow a judgment by default against the defendant 
 before the landlord was informed of it, and it is error to enjoin 
 the plaintiff from proceeding in his action, for an abandoned in- 
 tention to commit fraud is fraud without damage which a court 
 of equity will not investigate, and if by such a trick the. landlord 
 were to lose possession of his land he would promptly be restored 
 to possession and the judgment vacated by the court of law which 
 
 merit was by parol, Langston v. 
 Bates, 84 111. 524; Western Union 
 Tel. Co. v. Chicago, P. R. Co., 86 111. 
 252; Irwin v. Dyke, 114 111. 306, 1 
 N. E. 913; • • • It is insisted in 
 the agreement that complainant is 
 barred of relief on the ground of 
 laches. As to this question it is 
 sufficient to say that laches cannot be 
 imputed to a party who is in the 
 possession of the property in dispute 
 under a contract for a deed, as the 
 railroad company was in this case. 
 There was no necessity for bringing 
 a bill for relief until the appellant 
 created the necessity by bringing an 
 action to recover possession of the 
 property." Defendant sold plaintiff 
 four lots, taking a mortgage and 
 notes for the price. Subsequently, 
 plaintiff conveyed two of the four 
 lots back to defendant, and at the 
 same time sold him a house built on 
 the two lots so reconveyed, for a sum 
 greater than the balance due on the 
 mortgage, and defendant satisfied the 
 mortgage and delivered up the un- 
 paid notes. The agreement of sale 
 was that defendant should pay for 
 the house within a reasonable time, 
 
 and plaintiff should occupy the same 
 until paid for. Defendant afterwards 
 brought ejectment for the two lots 
 retained by plaintiff, on the ground 
 that the price had not been paid 
 therefor, whereupon plaintiff filed a 
 bill to enjoin such suit, alleging pay- 
 ment of the price by the sale of his 
 house, and a satisfaction of the 
 mortgage and surrender of the notes. 
 Defendant admitted the agreement to 
 purchase plaintiff's house, but 
 averred that such agreement had no 
 bearing on the price due him for the 
 two lots retained by plaintiff. Held, 
 that an injunction was properly al- 
 lowed; the chancellor being war- 
 ranted in finding that the price had 
 been paid. Fogarty v. McArdle 
 (Ala.), 11 So. 19. A., being in pos- 
 session of land, and having made im- 
 provements, and being about to bring 
 a suit for specific performance, was 
 forcibly dispossessed by the lessee of 
 one to whom the vendor conveyed the 
 land, and was sued in trespass by 
 such lessee for attempting to re- 
 cover possession. Held, that the les 
 see and his grantor should be en- 
 joined pending A.'s suit for specific 
 
 891
 
 § 589 Staying Actions and Suits. 
 
 rendered the judgment. 98 But where a person went into open and 
 notorious possession of land under a contract of sale and erected 
 buildings on the land and fully paid the purchase price according 
 to the terms of the contract and intervened as a defendant in an 
 action in ejectment brought against his tenant, in which, however, 
 he was not permitted to make his equitable defense, it was held 
 ho was entitled to an injunction to restrain the further prosecution 
 of the action in ejectment, a.s tin- pluintitV therein WU DOt an inno- 
 cent purchaser, but took title with full knowledge of the facts. 9 * 
 And where on a bill to restrain a threatened eviction of the plain 
 tiff by the owner of the fee, it appeared that the plaintiff wm 
 sub-lessee under a lease assented to by the defendant's predecessor 
 in title and binding on the defendant, and that it would not expire 
 for more than three yean from the filing of the bill, it was held 
 that the plaintiff should not be confined to recovering damages on 
 the ground that the injury of an injunction to the owner would be 
 incommensurate with the benefit to the plaintiff, and that an in- 
 junction should issue. 1 
 
 § 589. Restraining action in ejectment for laches. — An action 
 in ejectment may be restrained on the ground that the plaintiff 
 therein is estopped by laches from maintaining it, and a complaint 
 which seeks to restrain such an action and to quiet complainant's 
 title, is good as against a demurrer to the whole bill. 2 And 
 
 performance. Hadfield v. Bartlett, 2. Conklin v. Wehrman, 38 Fed. 
 
 66 Wis. 635, 29 N. W. 639. See, also, 874. In this case it appeared than 
 
 Smith v. Finch, 8 Wis. 251. an attachment was issued in Iowa, 
 
 98. Reay v. Butler, 69 Cal. 572. in a suit against W., and levied on 
 11 Pac. 463. In such an action of realty therein, the notice being served 
 ejectment the landlord would be al- personally on W. in Wisconsin, 
 lowed also to intervene on motion. Judgment was entered by default 
 Button v. Warschauer, 21 Cal. 609; against W., and the property ordered 
 Calderwood v. Brooks,' 28 Cal. 151; sold. In 1862, the attachment plain- 
 Dimick v. Derringer, 32 Cal. 488; tiff brought an action to set aside a 
 Valentine v. Mahoney, 37 Cal. 389; conveyance of the land by W. to F., 
 Porter v. Garrissino, 51 Cal. 560. as made in fraud of his right-, and no- 
 
 99. Long v. Thayer, 150 U. S. 520, tice was served on defendants person- 
 14 S. Ct. 189. 37 L. Ed. 1167. ally in Wisconsin. A decree was en- 
 
 1. Lynch v. Union Inst, for Saving, tered, subjecting the land to an execu- 
 158 Mass. 394, 33 N. E. 603. tion in the attachment proceedings. 
 
 892
 
 Staying Actions and Suits. § 589 
 
 where a land owner has knowledge of and acquiesces in the 
 making of improvements by one in possession of the land, he 
 may be enjoined from maintaining an action of ejectment 
 in order to let in the defense of acquiescence. 3 So where 
 after twenty years' acquiescence in the maintenance of a railroad 
 across defendant's land, negotiations having been pending concern- 
 ing the compensation which should be paid, the owner will be 
 enjoined from maintaining ejectment pending condemnation or 
 payment of the compensation to be determined and awarded in the 
 injunction suit. 4 But where a trustee of real estate sold it at 
 public auction, and bought in portions of it through a third person, 
 and the transaction was known to all of the cestui que trustent, 
 and not objected to, and the trustee fully accounted to them for 
 the proceeds, equity refused to afford them injunctive relief after 
 a lapse of twenty years, as such purchase by the trustee was not 
 absolutely void, but only voidable. 5 But a person in possession of 
 land, under a contract for the purchase of it, is not guilty of lachee 
 in not enforcing the completion of his title, so long as he is not 
 disturbed in his possession. 6 
 
 Held, that while the personal service Hudson, etc., R. Co. v. Booraem, 28 
 may not have been sufficient to au- N. J. Eq. 450. 
 
 thorize a personal judgment against 5. Hammond v. Hopkins, 143 U. 
 
 F, it notified him that proceedings S. 224, 12 S. Ct. 418, 36 L. Ed. 134; 
 were being taken to subject the land Marsh v. Whitmore, 21 Wall. 178, 
 to sale as the property of W., and 22 L. Ed. 482; Landsdale v. Smith, 
 that he, having remained inactive for 106 U. S. 391, 1 S. Ct. 350, 27 L. 
 twentv-five years, and failed to per- Ed. 219; Norris v. Haggin, 136 U. S. 
 form any of the duties of an owner, 386 10 S. Ct. 942. 34 L. Ed. 424; 
 such as listing the property, and pay- Mackall v. Casilear, 137 U. S. 556. 
 ing taxes, was estopped to maintain 11 S. Ct. 178, 34 L. Ed. 776; Han- 
 ejectment for the land. ner v. Moulton, 138 U. S. 486, 11 S. 
 3 South & N. A. R. Co. v. Ala- Ct. 408, 34 L. Ed. 1032; Root v. 
 bama Great S. R. Co. (Ala. 1906), Woolworth, 150 U. S. 401, 414, 14 
 41 g0 307 S. Ct. 136, 37 L. Ed. 1123. As to 
 4. Paterson, N. & N. Y. R. Co. v. the necessary allegations to execuse 
 Kamlah 42 N J Eq. 93, 6 Atl. 444. apparent laches, see Badger v. 
 And see' Trenton Water Co. v. Cham- Badger, 2 Wall. 87, 95, 17 L. Ed. 
 bers 9 N J. Eq. 471; Carson v. 836; Michoud v. Girod, 4 How. 503, 
 Coleman, 11 N. J. Eq. 106; Pickert 11 L. Ed. 1076. 
 
 ▼ Ridgefield etc., R. Co., 25 N. J. 6. Hall v. Peoria & E. Ry. Co., 143 
 
 Eq. 316; New York, etc., R. Co. v. 111. 163, 32 N. E. 598. 
 Stanley, 34 N. J. Eq. 55; North 
 
 893
 
 §§ 500, 591, 592 Stating Actions and Suits. 
 
 § 590. When ejectment not enjoined for mistake. — Equity 
 cannot enjoin an ejectment suit by one on whose land another has 
 innocently encroached, owing to the mistake of a surveyor em- 
 ployed by defendant in the ejectment suit to ascertain the line. 7 
 And to warrant the interference of equity in favor of a person who 
 has expended his money on another's land by building thereon, 
 he must have supposed that the land was his, and the other must 
 have known that it was not, and yet stood by and allowed him to 
 build without objection. Qui tacet, videtur consentire? 
 
 § 591. When action of trespass will not be enjoined. — An 
 injunction will not issue to restrain the holder of the legal title to 
 land from prosecuting an action of trespass against one in posses- 
 sion, it not having been established that the latter has even an 
 equitable right. 9 And an injunction will not issue to restrain the 
 legal owner of land from proceeding at law to recover possession, 
 when an apparently equitable title was passed in fraud of cred- 
 itors, plaintiff claiming under it having knowledge of, and partici- 
 pating in the fraud. 10 
 
 f 592. Action for forcible entry ; rule as to enjoining. — As 
 
 7. Kirchner v. Miller, 39 N. J. Eq. & Refining Co., 106 U. S. 447, 1 S. 
 355. Ct. 389, 27 L. Ed. 226 ; Brant v. Vir- 
 
 8. Bright v. Boyd, 1 Story, 478, ginia Coal Co., 93 U. S. 326, 23 L. 
 493; Ramsden v. Dyson, L. R. 1 H. Ed. 927; Henshaw v. Bissell, 18 Wall, 
 of L. 129, 141; McKelway v. Armour, 255, 21 L. Ed. 835. 
 
 10 N. J. Eq. 115. In such a case the 9. Cox. v. Gruver, 40 N. J. Eq. 
 
 conduct of the owner, who stands by 473, 3 Atl. 172. 
 
 and permits another to make large 10. Powers v. Canda. 40 N. J. Eq. 
 expenditures on his land, is either 602, 5 Atl. 143, rev'g 38 N. J. Eq. 
 actual fraud or such gross negli- 412, per Scudder, J.: "These con- 
 gence as amounts to constructive veyances, under which the corn- 
 fraud. But a party cannot invoke plainant claims title, are either vol- 
 the doctrine of estoppel against the untary and are void with respect to 
 owner of land, by reason of improve- the debt of this defendant which ex- 
 ments which he puts on his land, if isted at the date of these transfers, 
 he was aware at the time that it be- by force of the statute relating to 
 longed to him, and that he himself frauds and perjuries; or if any con- 
 had no title to it. Steel v. Smelting sideration were given for either con- 
 
 894
 
 Staying Actions and Suits. § 592 
 
 proceedings for forcible entry and detainer are quasi criminal" 
 and courts of equity will not restrain criminal proceedings, 12 unless 
 the complainant therein was already seeking to substantiate the 
 same right in an action in equity ; 13 it has been held that a plaintiff 
 in a suit to quiet title cannot enjoin the defendant therein from 
 bringing an action at law for forcible entry and detainer," since 
 the latter action does not determine the title to the premises in 
 dispute in the former action, nor the right to the possession 
 thereof. 15 And while a court of equity may enjoin further pro- 
 ceedings in an action of forcible entry and detainer it will only 
 exercise this power where certain irreparable injury will result 
 unless it is exercised. 16 And it is decided that a court of equity 
 will not interfere by injunction with such proceedings where there 
 is no allegation of fraud, mistake, accident or surprise. 17 And 
 an injunction, at the tenant's instance, to restrain an action for 
 forcible detainer, brought by lessor on the ground of fraudulent 
 representations by him, at the time of letting, is properly dissolved 
 on the lessor's answer positively denying the fraud. 18 Again, 
 when the purchaser of lands enters into possession, under a convey- 
 ance in which they are misdescribed, and is afterwards sued in 
 ejectment by his vendor, or the statutory action in the nature of 
 ejectment, he may have the conveyance reformed and the action 
 at law stayed pending the suit, but if the vendor brings an action 
 
 veyance, the purpose of all and their 14. Northern Pac. R. Co. v. Can- 
 effect were frauds on creditors, non, 49 Fed. 517. 
 known to the complainant at and be- jg Parks v. Barkley, 1 Mont, 
 fore the time of the transfer to him 514 . £oardman v . Thompson, 3 Mont, 
 —these will avoid his deeds as 3g ^ 
 
 against this defendant. Haston v. lg Crawford v p a j nC) 19 Iowa, 
 
 Castner, 31 N. J. Eq. G97." 1?2 
 
 11. 2 Daniell, Ch. PI A Pr 1620; ' 2Q ^ 
 
 Sheehv v. Flaherty, 8 Mont. 36o, 20 *•• ** '.,,„„ 
 
 Pac 687 18 Worthington v. Hatch, 13 So, 
 
 S 12 Re Sawyer. 124 U. S. 200, 8 518. An injunction will lie to re 
 
 S Ct 482 31 L Ed 402. strain summary proceedings for forc- 
 
 13* Story, Eq.'jur., § 893; Mayor, ible entry and detainer, when void 
 
 etc v Pilkington, 2 Atk. 302; At- for want of jurisdiction, when no 
 
 torney General v. Cleaver, 18 Ves. final order has been entered, notwith- 
 
 220; Montague v. Dudman, 2 Ves. standing Code Civ Proc N Y § 
 
 Sen. 390, 398. 2265, until after the final order. 
 
 895
 
 §593 
 
 Staying Actions and Suits. 
 
 of unlawful detainer, in which title cannot be inquired into, the 
 purchaser cannot enjoin the action while he seeks a reformation 
 of the conveyance. 19 
 
 § 593. Enjoining foreclosure of mortgage. — Where in an action 
 to cancel a mortgage, and enjoin a foreclosure of it, the bill alleged 
 that, if the transaction was governed by the laws of Alabama, it 
 was void, because defendant, being a foreign corporation, did not 
 have, a known place of business in the State, as required by the 
 constitution, and if the transaction was governed by the laws of 
 New York, where the papers were executed, it was void, for usury ; 
 and that complainant was not indebted to defendant in any sum, 
 but complainant offered, if he was mistaken in this to pay defend- 
 ant whatever sum the court adjudged to be due, it was held, that 
 the offer to pay, though not unequivocal, was sufficient to bring 
 the case under the rule that he who asks equity must do equity; 
 and that as the bill showed that the foreclosure would cause irre- 
 parable injury to complainant, it ought to be enjoined. 20 As proof 
 
 Schneider v. Leitzman. 11 N. Y. 
 Supp. 434. 
 
 19. Murphree v. Bishop, 79 Ala. 
 404. per Stone, C. J. : " It is con- 
 tended that the ruling in Robbins v. 
 Battle-House Co., 74 Ala. 499, main- 
 tains the injunction granted in this 
 case. In that case Robbins claimed 
 under a mere tenancy. As the con- 
 tract of lease was drawn, he was a 
 tenant at sufferance of a large part 
 of the tenement. That tenancy was 
 subject to be put an end to at any 
 time by the landlord without any 
 leason therefor. If the lease was re- 
 formed as claimed in the bill, then 
 the tenant was in for a term not yet 
 expired. The question of unlawful 
 detainer was still pending on appeal 
 in the Circuit Court, and it was nec- 
 essary to the defense of that suit 
 that the lease should be reformed 
 before the appeal cause was tried. On 
 
 that ground alone we held the in- 
 junction was improperly dissolved." 
 And see Vandeve v. Wilson, 73 Ala. 
 387. 
 
 20. New England Mortgage Secur- 
 ity Co. v. Powell, 97 Ala. 483, 12 So. 
 55, per Head, J.: "It is settled in 
 this State and it is believed to be a 
 principle recognized generally in 
 equity jurisprudence, that where a 
 party applies to a court of equity to 
 cancel a contract or agreement en- 
 tered into by him. on the ground of 
 illegality in violating the provisions 
 of some statute prohibiting the mak- 
 ing of such contract or agreement, 
 the court will require him, as a con- 
 dition to granting the relief, to do 
 equity, by restoring or repaying 
 whatever he may have received under 
 the contract or agreement sought to 
 be canceled; and he must expressly 
 
 896
 
 Staying Actions and Suits. 
 
 §594 
 
 of payment of a mortgage, as alleged in a bill to cancel the same is 
 on complainants, if it is denied in a sworn answer made on knowl- 
 edge, the allegation of payment will not sustain an injunction in 
 limine restraining legal proceedings by a purchaser under the 
 mortgage. In such a case, where the parties defendant are the 
 transferee of the mortgage and his wife, who purchased under the 
 mortgage sale, and the wife is made a party merely on the general 
 allegation that she claims some interest in the property, though the 
 wife's answer is unverified, a sworn answer of the husband, deny- 
 ing the allegations of the bill, will justify a refusal of the injunc- 
 tion. 21 
 
 § 594. Same subject; set-off against mortgagee. — The fore- 
 closure of a mortgage by bill in equity, will not be enjoined at 
 the mortgagor's instance merely to enable him to set off claims 
 against the mortgagee, of a purely legal character, there being no 
 allegation of insolvency, or of facts showing the inadequacy of 
 the legal remedy. 22 If the mortgagee is seeking a foreclosure in 
 equity, the mortgagor may set off any debt or demand he may 
 
 offer in his bill so to do. Mortgage 
 Co. v. Sewell, 92 Ala. 163, 9 So. 143, 
 and cases tliere cited. See, also, Pom. 
 Eq. Jur., § 391; 2 Story, Eq. Jur., §§ 
 693, 694. We need not decide on 
 this appeal whether, under the 
 averments of the bill, the transac- 
 tions assailed were Alabama trans- 
 actions, or governed by the laws of 
 New York. If either be true, and 
 there was such violation of the )ocal 
 law in respect of them as is charged 
 in the bill, the note and mortgage 
 are void, and complainant is entitled 
 to have them delivered up and can- 
 celed, upon repaying to the defend- 
 ant the sums of money actually re- 
 ceived by him, or to his use and bene- 
 fit, with lawful interest thereon." See, 
 also, Whitley v. Duniham Lumber 
 Co., 89 Ala. 493, 7 So. 810. where on 
 a bill to redeem the foreclosure was 
 enjoined. 
 
 As to enjoining foreclosure of mort- 
 gages, see, also, § 1258 herein. 
 
 21. Hartley v. Matthews, 96 Ala. 
 224, 11 So. 452, per Thornton, J.: 
 "The facts alleged in the bill, if es- 
 tablished by proof, are sufficient to 
 authorize relief as against the mort- 
 gage. Tipton v. Wortham, 93 Ala. 
 321, 9 So. 596; Whitley v. Dumham 
 Lumber Co., 89 Ala. 493, 7 So. 810. 
 But as averred, they defeat any right 
 in the complainants to relief by an 
 injunction in limine." As to the ef- 
 fect of the denials in the answer, see 
 Jackson v. Jackson (Ala.), 10 So. 31, 
 where Stone, C. J., lays down the 
 general rule. 
 
 22. Knight v. Drane, 77 Ala. 371, 
 per Clapton, J. : " We coitcur with 
 the chancellor that the bill is with- 
 out equity. The right of the mort- 
 gagor to set off the mortgage debt by 
 a debt or demand due him by the 
 
 897 
 
 57
 
 §§ 595, 596 Staying Actions and Suits. 
 
 hold against the mortgagee which would be the proper subject of 
 set-off if the mortgagee was suing at law for the recovery of the 
 mortgage debt f but if it becomes necessary for the mortgagee to 
 resort to injunctive relief, upon the ground that he has a proper 
 set-off against the mortgagee or mortgage debt, he must have some 
 other equity than the mere existence of a demand which is the 
 proper subject of set-off." 4 
 
 § 595. Enjoining action at law by mortgagee after mortgage 
 debt is paid. — When the jurisdiction of a court of equity has 
 attached under a bill filed by a mortgagor, alleging payment of 
 the mortgage debt, and praying a cancellation of the mortgage 
 or a redemption on payment of any balance found due on state- 
 ment of the account; and the mortgagee afterwards brings an 
 action at law on the notes secured by the mortgage, the action 
 may be enjoined. 25 
 
 § 59G. Action at law for breach of covenants in deed. — Equity 
 will not restrain the prosecution of an action at law for the breach 
 of covenants of seisin and quiet enjoyment, on the ground that 
 the covenantee at the time he took the deed, knew that the grantors 
 had no title, and concealed such knowledge from them ; and the 
 fact that one of the grantors has become insolvent since the execu- 
 tion of the deed, and that complainant must pay the entire damages 
 
 mortgage depends, in some cases, on of a set-off, he must allege and show 
 
 which party resorts to equity. When some other ground of equitable inter- 
 
 the mortgagee brings in a bill in position than the mere existence of a 
 
 equity for the foreclosure of the legal demand which is the proper 
 
 mortgage the mortgagor may set up subject of set-off under the statute. 
 
 Tny defense other than the statute Gafford v. Proskauer, 59 Ala. 264." 
 
 of limitations, which would avail in 23. Irving v. DeKay, 10 Paige (N. 
 
 an action at law on the debt, and Y.), 319; Chapman v. Robertson, 6 
 
 hence may, in reduction or extin- Paige (N. Y.), 027. 
 
 guishment of the mortgage debt, set 24. Cave v. Webb, 22 Ala. 583; 
 
 off any debt or demand that would Tuscumbia, etc., R. Co. v. Rhodes, 8 
 
 be available at law. It is, however, Ala. 200. 
 
 well settled that when it becomes 25. Whitley v. Dunham Lumber 
 
 necessary for the mortgagor to re- Co., 89 Ala. 493, 7 So. 810, per Mc- 
 
 soft to equity to obtain the benefit Clellan, J.: "The chancery court, 
 
 898
 
 Staying Actions and Suits. 
 
 §597 
 
 for the breach, is immaterial. 26 In such an action the deed 
 governs, and the grantor, in order to defeat the operation of the 
 covenant cannot, in the absence of fraud, establish by parol the 
 grantee's knowledge of an incumbrance upon the land conveyed, 
 or a defect in, or utter want of title, or by oral proof, engraft 
 upon the deed exceptions and reservations which it does not ex- 
 press. 27 
 
 § 597. Priority of suits. — Where complainant, who is in pos- 
 session, files a bill to quiet title, and afterwards defendant files a 
 bill for partition of the same land, without making complainant a 
 party, the latter may have the partition suit enjoined until his suit 
 is determined. 28 But plaintiff in a suit to quiet title cannot enjoin 
 defendant from bringing an action at law against him for forcible 
 entry and detainer of the premises in question. 29 Under a Code 
 
 having thus rightfully acquired juris- 
 diction of the controversy, and re- 
 strained the sale under the mortgage, 
 had the further right, as a matter of 
 course, to protect and effectuate its 
 jurisdiction by enjoining the suit at 
 law instituted after bill hied for the 
 purpose of having one of tlie chief 
 questions involved in the chancery 
 case determined in the law court. 
 Northeastern R. Co. v. Barrett, 65 
 Ga. G01; Hadfield v. Bartlett, 60 
 Wis. 635, 29 N. W. 639." And see, 
 as to the equity of the original bill, 
 Fields v. Helms, 70 Ala. 460; Gil- 
 mer v. Wallace, 79 Ala. 464. 
 
 26. Sparrow v. Smith, 63 Mich. 
 209, 29 N. W. 691, per Morse, J.: 
 "There is no allegation in the bill 
 that there was any collusion between 
 the plaintiffs in the ejectment suit 
 and defendant Smith, the covenantee. 
 If there had been, and the judgment 
 in that case was shown to have been 
 brought about by such collusion, a 
 different case might have been pre- 
 sented to us. As it is, the mere con- 
 
 cealment by Smith from the com- 
 plainant and Bush, the joint cove- 
 nantors, of his knowledge of the de- 
 fect in their title, as it could not 
 harm them or either of them, save by 
 the not contemplated insolvency of 
 Bush, nor benefit Smith, who could 
 make notliing out of the transaction, 
 cannot be considered as fraudulent." 
 
 27. Connecticut. — Hubbard v. Nor- 
 ton, 10 Conn. 423, 431. 
 
 Iowa.— Barlow v. McKinley, 24 
 Iowa, 70; Van Wagner v. Van Nos- 
 trand, 19 Iowa, 422. 
 
 Massachusetts. — Harlow v. Thomas, 
 15 Pick. 66. 
 
 Michigan. — Sparrow v. Smith, 63 
 Mich. 209, 29 N. W. 691. 
 
 Neic York. — Suydam v. Jones, 10 
 Wend. 180, 186. 
 
 28. McCullough v. Absecom Land 
 Imp. Co. (N. J. Eq.), 10 Atl. 606. 
 And see Hammers v. Hanrick, 69 
 Tex. 412, 7 S. W. 345. 
 
 29. Northern Pac. R. Co. v. Can- 
 non, 49 Fed. 517. 
 
 899
 
 ^598 
 
 Staying Actions and Suits. 
 
 provision that defendant may set up all the defenses, legal or 
 equita'ble, which he may have to an action, he cannot maintain a 
 separate action, based on an equitable defense, to enjoin the first 
 action. 30 In an action for judgment on a note and for foreclosure 
 of a mortgage, a petition that the action be enjoined so far as the 
 foreclosure is concerned, until the final determination of a causo 
 between the same parties, for the cancellation of the mortgage 
 then pending on appeal to the Supreme Court, is addressed to 
 the equity side of the court, and must affirmatively state facts 
 showing a defense, and that such defense is properly pleaded and 
 presented in the action which is on appeal and that that action 
 is prosecuted in good faith and with a reasonable prospect of 
 
 success. 
 
 ::i 
 
 § 598. Same subject. — "Where the decision in one action will 
 determine the right set up in another action or several other 
 actions, and the judgment on one trial will dispose of the contro- 
 versy in all the other actions, the latter may be stayed. Thus 
 where different actions have been brought by creditors in behalf 
 of themselves and other creditors, against an assignee for the 
 benefit of creditors for an accounting and closing of the trust, the 
 
 30. Richardson v. Davidson, 5 N. 
 Y. Snpp. 617. In Savage v. Allen, 
 54 N. Y. 458, Reynolds, C, said: 
 " Tlie proposition that a separate ac- 
 tion may, under our present system, 
 be maintained to restrain, by injunc- 
 tion, the proceedings in another suit 
 in the same or another court, be- 
 tween the same parties, where the 
 relief sought in the later suit may be 
 maintained by a proper defense to 
 the former one, has long since been 
 exploded, or if not, should be without 
 delay. Sheehan v. Hamilton, 2 Keyes, 
 304; Win field v. Bacon, 24 Barb. 154 
 Schell v. Erie R. Co., 51 Barb. 308 
 Dobson v. Pearce, 12 N. Y. 158", 165 
 Cummings v. Morris, 25 N. Y. 625 
 Pitcher v. Hennessey, 48 N. Y. 415, 
 
 422. It is said that a party having 
 a good equitable defense to an action 
 of ejectment, is not absolutely bound 
 to interpose it, but is at liberty to 
 some form of remedy by injunction 
 in another suit. If this he admitted 
 for the sake of argument, it must be 
 remembered that the remedy by in- 
 junction rests very largely in the dis- 
 cretion of the court, and that judi- 
 cial discretion would not, probably, 
 be exercised where a party had, in 
 some other form, abundant means for 
 the protection of his rights which, 
 without excuse, he neglected to as- 
 sert." See, also, VonProchazka v. Von 
 Prochazka, 3 N. Y. Supp. 301. 
 
 31. Horman v. Hartmetz, 131 Ind. 
 558, 31 N. E. 81. 
 
 900
 
 Staying Actions and Suits. § 599 
 
 court has the power to make an order to compel all the creditors 
 to come in and prove their claims in the suit first brought, and 
 to stay all proceedings in the other actions. 32 And if two different 
 suits are brought in behalf of an infant by two different persons, 
 each claiming to be his next friend, a court of equity may deter- 
 mine which suit shall proceed, and enjoin the other. 33 But a stay 
 of proceedings in one action until the determination of another 
 action pending in another court should not be granted, when the 
 party against whom the stay is sought is neither a party nor a 
 privy to such other action, and will not be bound by any adjudi- 
 cation therein. 34 Where in an action by certain creditors of a cor- 
 poration on behalf of themselves and all other creditors to enforce 
 the statutory liability of the stockholders, an injunction was 
 granted, restraining all creditors, whether parties to the action or 
 not, from commencing or further prosecuting any action against 
 the stockholders to enforce such liability, it was held, that for the 
 purposes of a motion to postpone separate actions pending by other 
 creditors, it was not necessary to serve the injunction order per- 
 sonally on plaintiffs therein, but it was sufficient to show that they 
 or their attorneys had knowledge of its existence. 35 
 
 § 599. Where jurisdiction is concurrent. — In accordance with 
 the general rule that where the jurisdiction of two courts is con- 
 current, the jurisdiction of the court which first attaches should 
 
 32. Travis v. Myers, 67 N. Y. 542, 48 N. Y. 62; Erie R. Co. v. Ramsey, 
 
 per Curiam: "The Supreme Court 45 Id. 637; In re Hemiup, 2 Paige, 
 
 had power to make the order com- 819." 
 
 plained of, and to compel creditors 3,3. Morrison v. Bell, 5 Ir. Eq. (N. 
 
 and claimants, of whom the appellant C.) 354. 
 
 is one, to come in and prove their 34. Dolbeer v. Stout, 139 N. Y. 
 
 claims in the suit first brought by 486, 34 N. E. 1102. See, also, People 
 
 one creditor in behalf of himself and v. Wasson, 64 N. Y. 167; Third Ave. 
 
 all others for an accounting by the R. Co. v. Mayor, etc., 54 N. Y. 159; 
 
 assignee, and the closing of the trust, DeGroot v. Jay, 30 Barb. (N. Y.) 
 
 and to stay proceedings in other ac- 483. 
 
 tions. Such order was authorized by 35. Watson v. Coe, 5 N. Y. Supp. 
 
 statute, and in conformity to the es- 614; Armitage v. Hoyle, 2 How. Pr. 
 
 tablished practice of the court. 2 (N. S.) 438; Hull v. Thomas, 3 Edw. 
 
 Rev. Stat. 183, § 106; Innes v. Lan- Ch. (N. Y.) 236. 
 sing, 7 Paige, 583; Kerr v. Blodgett, 
 
 901
 
 § GOO 
 
 Staying Actions am> Suits. 
 
 prevail, 36 a court of equity will not grant a preliminary injunction 
 for the mere purpose of obtaining exclusive jurisdiction "t a. 
 controversy, 37 and will not take jurisdiction where tbi* bill discloses 
 a case of concurrent jurisdiction, as to which the jurisdiction of 
 the law court has already attached. 38 
 
 § 600. Federal injunction against proceedings in State courts. 
 — It is an established doctrine that a court of equity will nol en- 
 join proceedings pending in another and independent forum, where 
 the latter has jurisdiction and can afford to the parties appropriate 
 relief; 89 and this rule is not to be evaded by directing the injunc- 
 tion to the litigating parties only, and not to the court. 40 And the 
 rule just laid down applies as between Federal and State courts, 
 as those courts act separately and independently of each other. 41 
 
 36. Smith v. Mclver, 9 Wheat. 
 (U. S.) 532, 6 L. Ed. 152; Bumpass 
 v. Reams, 1 Sneed (Tenn.), 597. See 
 §§ 75-89, ante. 
 
 37. Waterlow v. Bacon, L. R. 2 Eq. 
 514; Mitchell v. Oakley, 7 Paige (N. 
 V.), 68. 
 
 38. McLin v. Robinson, 1 Heisk. 
 (Tenn.) 678. See, also, Wilson v. 
 Lambert, 168 U. S. 611, 18 S. Ct. 217, 
 42 L. Ed. 599; Crane v. Bunnell, 10 
 Paige (N. Y.), 333; Clarke v. Man- 
 tling, 7 Beav. 162; Mason v. Pigott, 
 11 111. 85; Ross v. Buchanan, 13 111. 
 55. 
 
 39. Wilson v. Lambert, 168 U. S. 
 611, 18 S. Ct. 217, 42 L. Ed. 599; 
 Diggs v. Wolcott, 4 Cranch (U. S.), 
 179, 2 L. Ed. 587; Peck v. Jenness, 
 7 How. (U. S.) 612, 12 L. Ed. 841. 
 See §§ 88, 89, ante. 
 
 40. Peck v. Jenness, 7 How. (U. 
 S.) 612, 624, 625, 12 L. Ed. 841; 
 Whitney v. Wilder, 54 Fed. 554. 
 
 41. Riggs v. Johnson Co., 6 Wall. 
 (U. S.) 166, 18 L. Ed. 768, per 
 Curiam: "Circuit courts and State 
 courts act separately, and independ- 
 
 ently of each other; and, in their re- 
 spective spheres of action tlie process 
 issued by the one is as far beyond the 
 reach of the other as if the line of 
 division between them was traced by 
 landmarks and monuments visible to 
 the eye." And see, also, United States 
 v. Council of Keokuk, 6 Wall. 514, 
 18 L. Ed. 933; Duncan v. Darst, 1 
 How. 301, 11 L. Ed. 139; McKim v. 
 Voorhies, 7 Cranch, 279, 3 L. Ed. 342; 
 Watson v. Jones, 13 Wall. 719, 20 L. 
 Ed. 666, 672; City Bank v. Skelton, 
 2 Blatchf. 14, 28; Memphis City v. 
 Dean, 8 Wall. 64, 19 L. Ed. 326; Mal- 
 lett v. Dexter, 1 Curt. 178; Parsons 
 v. Lyman, 5 Blatchf. 170; Peale v. 
 Phipps, 14 How. 368, 14 L. Ed. 459; 
 Bell v. Trust Co., 1 Biss. 260, and 
 cases page 274; Union Trust Co. v. 
 Rockford, etc., R. Co., 6 Biss. 197. 
 
 It is also a doctrine too fa- 
 miliar for extended comment 
 that property in the possession of a 
 court acting under one jurisdiction 
 cannot be wrested from it by an offi- 
 cer acting under another jurisdiction. 
 Taylor v. Carryl, 20 How. 683, 15 L. 
 
 002
 
 Staying Actions and Suits. 
 
 §600 
 
 This rule that there should be no unnecessary interference between 
 the State and Federal courts when matters that were within the 
 jurisdiction of both had been subjected to the control of one of 
 them was early established for the purpose of preserving har- 
 monious relations between such courts. 42 Federal courts are pro- 
 hibited from granting injunctions to stay proceedings in any court 
 of a State, except as authorized so to do in bankruptcy proceed- 
 ings ; 43 but are not prohibited from enjoining the prosecution in 
 a State court of a multiplicity of threatened suits which have not 
 been actually begun. 44 And it has been held that a Federal court 
 has no power to enjoin a receiver in possession of a railroad, under 
 appointment of a State court, from issuing receiver's certificates, 
 or to restrain the parties in the State court from carrying out an 
 agreement sanctioned by that court. 45 And a Federal court cannot 
 grant an injunction to maintain the status quo pending an appeal 
 in condemnation proceedings, where a State statute, whose con- 
 
 Ed. 1028; Freeman v. Howe, 24 How. 
 450, 16 L. Ed. 749; Buck v. Colbath, 
 3 Wall. 334, 18 L. Ed. 257; Keating 
 v. Spink, 3 Ohio St. 105. 
 
 42. City of Opelika v. Daniel, 59 
 Ala 211. 
 
 43 Section 720, U. S. R. S. 
 
 44. Texas, etc., R. Co. v. Kuteman, 
 54 Fed. 547. 
 
 45. Reinach v. Atlantic, etc., R. 
 Co., 58 Fed. 33, per Brown, J.: 
 "The rights of the parties in this 
 suit are protected in a State court. 
 Whether fully protected or not is for 
 us to determine. We cannot say here 
 that the action of the State court in 
 confirming an agreement for the ex- 
 tension of the first mortgage has been 
 injudicious. There are many reasons 
 for saying it has been a judicious ac- 
 tion. Great difficulties are suggested 
 in the way of an immediate fore- 
 closure under the first mortgage, 
 ■which covers, it seems, only a part of 
 tV>e ror-d. n.nd a fraction of 347-388 
 
 of the lease of a branch line repre- 
 sented to be the most valuable fea- 
 ture of the organization. To say that 
 the rights of this complainant are not 
 fully protected in the State court; to 
 pronounce that there is collusion and 
 fraud there; and to demand of us, 
 virtually, to stop the progress of this 
 suit, and to sweep the subject matter 
 of the litigation and the contentions 
 of these parties within the jurisdic- 
 tion of this court— is requiring of us 
 more, we believe, than has ever been 
 granted in any court of the United 
 States. We cannot better conclude 
 this opinion than by the following 
 quotation from the decision of Mr. 
 Justice Bradley in Haines v. Carpen- 
 ter, 91 U. S. 254: 'A mere statement 
 of the bill is sufficient to show it can- 
 not be sustained. ... In the first 
 place, the great object of the suit is 
 to enjoin and stop litigation in the 
 State courts, and to bring all the liti- 
 gated questions before the Circuit 
 
 903
 
 § 001 Staying Actions and Suits. 
 
 etitutionality has been affirmed by the State courts, gives the con- 
 demning party a right to proceed. 46 Where, however, a receiver 
 appointed by a Federal court, has commenced an action in such 
 court to determine the rights of the parties, an injunction may be 
 granted to restrain one of the parties from prosecuting against the 
 receiver a similar action in a State court which was commenced 
 after the appointment of the receiver and the institution of the 
 suit in the Federal court. 47 But though a Federal court is without 
 authority to nullify or stay the proceedings of a State court, it is 
 decided that it may through the injunctive process restrain the 
 plaintiff in a judgment from enforcing the same, and thereby 
 prevent perpetration of a wrong upon the judgment debtor, for in 
 such a case the process operates upon the person, and not against 
 the State officers, or any authorities thereof." 
 
 § G01. Same subject; enjoining administrators. — The prohibi- 
 tion of injunctions against the State courts, referred to in the last 
 preceding section, extends to all cases over which such courts first 
 get jurisdiction, and applies to the officers and parties in the 
 courts as well as to the courts themselves. Therefore, a Federal 
 court has no power, on the complaint of a legatee and an executor 
 under a will probated in one State, to enjoin an administrator 
 appointed in another State from distributing the funds under his 
 control to the heirs at law. 49 
 
 Court. This is one of the things 46. Pennsylvania R. Co. v. Na- 
 
 wliicli the Federal courts are ex- tional Docks, 58 Fed. 929, distinguish- 
 
 pressly prohibited from doing. By ing Erhardt v. Boaro, 113 U. S. 537, 
 
 the Act of March 2, 1793, it was de- 5 S. Ct. 565. 
 
 clared that a writ of injunction shall 47. Ward v. San Diego Land & T. 
 
 not be granted to stay proceedings in Co., 79 Fed. 663. 
 
 a State court. . . . This objection, 48. Schultz v. Highland Gold 
 
 alone, is sufficient ground for sustain- Mines Co., 158 Fed. 337. 
 
 ing the demurrer to the bill. . . . 49. Whitney v. Wilder, 54 Fed. 
 
 The State courts have full and ample 554, per Toulmin, J.: "While the in- i 
 
 jurisdiction of the cases, and no suffi- junction is directed to the adminis- 
 
 cient reason appears for interfering trator of the succession and estate of 
 
 with their proceedings.' See, also, Myra Clark Gaines, deceased, re- 
 
 Wilmer v. Railroad Co., 2 Woods, straining him from paying out to the 
 
 409. The motion for an injunction heirs at law of said estate any moneys 
 
 must be denied." belonging to it, its purpose and effect 
 
 904
 
 Staying Actions and Suits. 
 
 §G01a 
 
 § 601a. Injunctions in State courts against proceedings in 
 Federal courts. — Where a party who is sued in a Federal court 
 has a right to an injunction he should file his bill on the equity 
 side of such court as no State tribunal will enjoin such suit. 50 So 
 a State court will not enjoin a party from applying for the benefit 
 of the bankrupt act under the bankrupt law of the United States. 51 
 And where an action is brought in a Federal court, a State court 
 will not enjoin it on the ground that the former court will probably 
 decide it in a manner contrary to the opinion of the State court. 02 
 And the fact that a class of obligations has been held invalid in a 
 State court and may be held valid in the Federal courts is no 
 ground for a State court enjoining an action thereon in the Federal 
 
 are to interfere with the pending ad- 
 ministration of the estate in the pro- 
 bate court of the State of Louisiana, 
 which is vested with exclusive juris- 
 diction of the same, and by whose 
 order alone the administrator would 
 be duly authorized to distribute and 
 pay over any money belonging to it. 
 The heirs at law of the deceased peti- 
 tion the probate court that, after the 
 payment of all debts, the property of 
 the estate be turned over to them. 
 The practical effect of the injunction 
 is to stay proceedings under this pe- 
 tition. Should a decree be granted 
 on the petition by the probate court, 
 and the administrator be ordered to 
 comply with the same, he would be 
 subject to diverse and conflicting de- 
 crees — that of the State court, direct- 
 ing him to distribute the funds of the 
 estate in its custody and under its 
 control according to its decree, and 
 that of the Federal court, directing 
 him to refrain and desist from dis- 
 tributing such funds. It was said by 
 this court in the case of Railway Co. 
 v. Kuteman, 54 Fed. 547 (decided at 
 this term), that 'there is not in our 
 system anything so unseemly as ri- 
 valry and contention between the 
 
 courts of the State and the courts of 
 the United States.' The framers of 
 our statute laws, foreseeing the evils 
 of such conflicting jurisdiction, have 
 wisely prohibited, in express terms, 
 the granting of injunctions to stay 
 proceedings in any court of a State. 
 Rev. Stat., § 720. This prohibition 
 of the statute extends to all cases 
 over which the State court first ob- 
 tains jurisdiction, and applies not 
 only to injunctions aimed at the State 
 court itself, but also to injunctions 
 issued to parties before the court, its 
 officers or litigants therein. Diggs v. 
 Wolcott, 4 Cranch, 179, 2 L. Ed. 587; 
 Peck v. Jenness, 7 How. G25, 12 L. 
 Ed. 841, 846; Dial v. Reynolds, 96 
 U. S. 340, 24 L. Ed. 644." 
 
 50. City of Opelika v. Daniel, 59 
 Ala. 211; Bryan v. Hickson, 40 Ga. 
 405; Logan v. Lucas, 59 111. 237; 
 Johnstown Min. Co. v. Morse, 44 
 Misc. R. (N. Y.) 504, 90 N. Y. Supp. 
 107; Town of Thompson v. Norris, 11 
 Abb. N. C. (N. Y.) 163. 
 
 51. Fillingin v. Thornton, 49 Ga. 
 384. 
 
 52. Town of Thompson v. Norris, 
 11 Abb. N. C. (N. Y.) 163. 
 
 905.
 
 §602 
 
 Staying Actions and Suits. 
 
 ^ 
 
 court. 0,1 Xor will a State court interfere by injunction against a 
 receiver appointed by a Federal court where the effect of such 
 interference would be to disturb the receiver in his possession of 
 the property. So it has been decided that a State court has no 
 jurisdiction to entertain a suit against a receiver for a telephone 
 company appointed by a Federal court, the effect of which would 
 be to compel him to reduce the rate charged complainant for tele- 
 phone service to that fixed by a city ordinance. 54 
 
 § 002. Enjoining further proceedings in State court in case of 
 removal. — The Federal Circuit Court has authority to enjoin the 
 prosecution in a State court of a case which has been legally re- 
 moved to the Federal court, but which the State court refuses to 
 surrender jurisdiction over; and, while this authority will not be 
 exercised when the question is merely one of inconvenience, yet 
 tho injunction will bo granted if otherwise parties are likely to 
 suffer serious detriment by the taking of their property or other 
 irreparable injury. 55 
 
 5.3. Town of Venice v. Woodruff, 
 62 N. Y. 462, 20 Am. Rep. 495. 
 
 54. Rogers v. Chippewa Circuit 
 Judge, 135 Mich. 79. 
 
 55. Abeel v. Culberson, 56 Fed. 
 329, per McCormick, J. : " We do not 
 doubt the power of the Circuit Court 
 to enjoin parties from proceeding in 
 the State court in the removed causes 
 where the State court has refused to 
 surrender jurisdiction. We are 
 mindful of the fact that in very many 
 cases where the State courts have so 
 refused to surrender jurisdiction, 
 either the parties have refrained from 
 asking the Circuit Court to stay sub- 
 sequent proceedings by the State 
 court, or the Circuit Court has de- 
 clined to grant such relief when 
 asked. In our view, it must, however, 
 be conceded that the cases cited by 
 counsel for the complainant in this 
 motion from the Supreme Court and 
 
 from eminent judges at the circuit, 
 amply support and settle the power in 
 the Circuit Court to grant such re- 
 lief in a proper case, and indicate and 
 illustrate the kind of case that will 
 warrant, and even require, the grant- 
 ing of such relief. The delicacy of the 
 situation justifies the exercise of a 
 large discretion, and has been rightly 
 judged to demand from the Circuit 
 Court the exercise of such conserva- 
 tive and provident actions as has 
 usually resulted in their declining to 
 exercise the conceded power. When, 
 however, serious detriment (no mere 
 inconvenience, or customary court 
 cost9) is likely to be inflicted on par- 
 tics by the taking of their property, 
 or other irreparable injury to their 
 interests, not only the right to stay 
 such proceedings by injunction is 
 clear, but the duty becomes impera- 
 tive. We consider that this applica- 
 
 906
 
 Staying Actions and Suits. 
 
 §602a 
 
 § 602a. Where tribunal has exclusive jurisdiction. — Where 
 exclusive jurisdiction is conferred by express provision of law 
 upon a certain court or tribunal with full power to hear and deter- 
 mine the matters in controversy a court of equity will not as a 
 general rule grant an injunction restraining a proceeding before 
 such tribunal. So exclusive jurisdiction in respect to the deter- 
 mination of the priority of an invention being vested in the Patent 
 Commissioner a court of equity will not interfere by injunction to 
 restrain such a proceeding before him. 56 And statutory regula- 
 tions for the settlement of election contests are exclusive of all 
 others and a court of equity has no jurisdiction, when not specially 
 conferred upon it, to enjoin the prosecution of a proceeding in 
 accordance with the statute. 57 And a court of equity will not 
 restrain several creditors from proving their claims against an 
 insolvent debtor in the court of insolvency where the same questions 
 of law are raised in each case unless it appears that there is a prac- 
 
 tion presents such a case. Here is 
 an insolvent corporation whose prop- 
 erty was taken into the custody of 
 the Circuit Court for this district, 
 and is being held by its receiver. It 
 will necessarily, and, it seems to us, 
 very materially, embarrass the Cir- 
 cuit Court in the exercise of its ju- 
 risdiction of this property to have 
 this removed cause proceeded with in 
 the State court. . . . These rea- 
 sons, briefly stated, have led us to 
 conclude that the injunction now asked 
 should be granted. Counsel for the 
 motion will prepare, and submit for 
 passing, the proper decree in accord- 
 ance with the prayer and the views 
 we have just expressed. Judge Bry- 
 ant authorizes me to announce that 
 he concurs fully in this decision and 
 in the reasoning on which it is based. 
 The counsel cited, and the court con- 
 sidered and referred to, the following 
 authorities: United States v. Louisi- 
 ana, 123 U. S. 32, 8 S. Ct. 17, 31 L. 
 
 Ed. 69; Ames v. Kansas, 111 U. S. 
 449, 4 S. Ct. 437, 28 L. Ed. 482; 
 Omaha Horse Ry. Co. v. Cable Tram- 
 way Co., 32 Fed. 727; Railroad Co. 
 v. Mississippi, 102 U. S. 135, 20 L. 
 Ed. 96; Lowry v. Railroad Co., 40 
 Fed. 84; State v. Illinois Cent. R. 
 Co., 33 Fed. 721; French v. Hay, 22 
 Wall. 250, 22 L. Ed. 854, 857; 
 Dietzsch v. Huidekoper, 103 U. S. 
 494, 26 L. Ed. 497; Fisk v. Railroad 
 Co., 10 Blatchf. 518; Sharon v. Terry, 
 36 Fed. 365 ; Railroad Co. v. Ford, 35 
 Fed. 170; Wagner v. Drake, 31 Fed. 
 849; Railway Co. v. Cox, 145 U. S. 
 601, 12 S. Ct. 905, 36 L. Ed. 829, 
 832; Bank v. Calhoun, 102 U. S. 262, 
 26 L. Ed. 101 ; In re Ayers, 123 U. S. 
 443, 8 S. Ct. 164, 31 L. Ed. 216; 
 Pennoyer v. McConnaughy, 140 U. S. 
 1, 11 S. Ct. 699, 33 L. Ed. 363." 
 
 56. Griffith v. Dodgson, 103 App. 
 Div. (N. Y.) 542, 93 N. Y. Supp. 155. 
 
 57. Ex parte Wimberly, 57 Miss. 
 437. 
 
 907
 
 § G03 Stating Actions and Suits. 
 
 tical necessity for such interposition to prevent vexatious litiga- 
 tion. 58 A court of equity also will not interfere by injunction to 
 enjoin proceedings in probate courL> and determine matters therein 
 cognizable, such jurisdiction being nested exclusively in the latter 
 courts with the right to the parties to appeal to tin- higher court as 
 the supreme court of probate. 59 So in a case in Alabama it is 
 decided that where the probate court has assumed jurisdiction 
 in the matter of a settlement or other function connected with thu 
 administration of an estate, the chancery will not enjoin such 
 proceedings on grounds which involve simple questions of fact 
 and which are matters of defense which the probate court is com- 
 petent to determine. 60 
 
 § 603. Enjoining equity action in same court. — It is a general 
 rule that an action cannot bo maintained to restrain the prosecution 
 of a former action in the same court, unless it clearly appears that 
 full and complete justice can not be done in the earlier action. 61 
 And while the ordinary rule is thai pending proceedings in equity 
 in the same court will not be restrained in a subsequent suit in 
 equity between the same parties, 62 yet this rule must yield where a 
 party aggrieved cannot have full and adequate relief in the original 
 suit in equity. 63 That one has a pending petition to be made party 
 to a cause in equity, and another pending petition to set aside 
 the decree rendered in said cause, will not hinder him from filing 
 his own bill to recover proceeds of the decree from one of the 
 prevailing parties, and to enjoin the execution of the decree, so 
 as to hold up such proceeds to abide the result of his bill. 64 In 
 
 58. Fellows v. Spaulding, 141 there are no averments showing why 
 Mass. 89, 6 N. E. 548. h e cannot protect himself by plead- 
 
 59. Clarke v. Clarke, 7 R. I. 45; ing such defenses thereto as iie may 
 Brown v. Brown, 66 Vt. 81, 28 Atl. think necessary or proper for his 
 6(J6 - protection. Redd v. Blandford, 54 
 
 60. Newsom v. Thornton, 66 Ala. Ga. 123. See, also, Dayton v. Relf, 
 311. 34 Wis. 86. 
 
 61. Pond v. Harwood, 139 N. Y. 63. Mann v. Flower, 26 Minn. 479, 
 111, 34 N. E. 768; Dayton v. Relf, 5 N. W. 365. 
 
 34 Wis. 86. 64. Alspaugh v. Adams, 80 Ga. 
 
 62. The prosecution of a bill in 345, 5 S. E. 496. 
 equity will not be enjoined where 
 
 908
 
 Staying Actions and Suits § 604 
 
 New York it has been decided that a court of equity has power, 
 by injunction, to restrain proceedings in another equitable action 
 in the same court, and that the Supreme Court in one judicial 
 district has jurisdiction in an action brought for that purpose, to 
 restrain, by injunction, proceedings in another action pending in 
 that court in another district. It was, however, declared in this 
 case that such jurisdiction should not be exercised except in ex- 
 treme cases. 65 An injunction will not lie to restrain the prosecu- 
 tion of an action begun in another county in which plaintiff's pre- 
 decessors in title intervened and answered, and to which he was 
 made a party, where the real object of the injunction action seems 
 to be to change the venue of the former action to another county. 66 
 
 § G04. Same subject. — A defendant in an action for an account- 
 ing cannot maintain an equitable action in the same or another 
 court against the plaintiff in the first action and a third person 
 for an accounting, and for an injunction to restrain the further 
 prosecution of the first action, where all the relief claimed by 
 plaintiff in the second action and to which he shows himself 
 entitled, could be secured in the first action ; and the fact that such 
 third person is a necessary party to the controversy between the 
 parties to the first action does not entitle defendant to maintain 
 the second action, since he could by motion, or the court could on 
 its own motion, make such third person a party to the first action. 67 
 
 65. Erie Railway Co. v. Ramsey, the plaintiff to pay over moneys re- 
 
 45 N. Y. 637. ceived by him in the character of 
 
 But see Schell v. Erie R. Co., 51 attorney of that court. 
 
 Barb. (N. Y.) 368. And see gener- 66. Cheney v. Schuyler, 20 N. Y. 
 
 ally en this point, Schuyler v. Pelis- Supp. 546. 
 
 sicr, 3 Edw. Ch. (N. Y.) 191; Sieve- 67. Pond v. Harwood, 139 N. Y. 
 
 king v. Behrens, 2 Myl. & Cr. 581; 111, 34 N. E. 768, per Maynard, J.: 
 
 Prudential Assur. Co. v. Thomas, L. " There can be no doubt that the 
 
 R. 3 Ch. App. 74. Supreme Court may in a proper case 
 
 In Saxton v. Wyckoff, 6 Paige Ch. perpetually stay the proceedings of 
 
 (N. Y.) 182, it is decided that an the plaintiff in an equitable action 
 
 injunction ought not to be granted at the suit of his adversary in an- 
 
 tj ftay -the defendant trom making other equitable action. Formerly the 
 
 an application to the equitable pow- court of chancery denied the exist- 
 
 ers of the Supreme Court to compel ence of the jurisdiction, and said 
 
 909
 
 §005 
 
 Staying Actions and Suits. 
 
 Kor is such second action maintainable for the purpose of enabling 
 the plaintiff therein to enforce an equitable set-off against the 
 plaintiff in the first action, in the form of a judgment purchased 
 by him after the first action was commenced, since whatever equit- 
 able right of set-off he has was available in the first action. 68 
 
 § G05. Action not enjoined because of foreign suit. — An action 
 at law will not be enjoined from the mere fact that a bill in equity 
 is pending in another State concerning the same subject matter, 
 though the parties in both suits are the same. 09 And the pendency 
 
 that an application for such a stay 
 could scarcely be considered as seri- 
 ously made. Medlock v. Cogburn, 
 1 Rich. Eq. 477; McReynolils v. liar- 
 ehaw, 2 [red. Eq. 196. Although the 
 power now exists it cannot be arbi- 
 trarily asserted. The grant of a tem- 
 porary injunction is usually dis- 
 cretionary, but not so with a decree 
 allowing a perpetual stay. Facts 
 must be shown, which according to 
 the established rules for the admin- 
 tration of equity, will authorize 
 that kind of relief. A subsequent ac- 
 tion cannot be maintained to restrain 
 the prosecution of another action in 
 the same court, unless it clearly ap- 
 pears that full and complete justice 
 cannot be obtained in the earlier ac- 
 tion. Hall v. Fisher, 1 Barb. Ch. 53; 
 Hayward v. Hood, 39 Hun, 596; Cow- 
 per v. Theall. 40 Hun, 520; Erie R. 
 Co. v. Ramsey, 45 N. Y. 637; Wal- 
 lack v. Society, 67 N. Y. 23. As was 
 said by Reynolds, J., in Savage v. 
 Allen, 54 N. Y. 458: 'The proposi- 
 tion that a separate action may, 
 under our present system, be main- 
 tained to restrain by injunction the 
 proceedings in another suit in the 
 same or another court, between the 
 same parties, where the relief sought 
 in the later suit may be obtained by 
 a proper defense to the former one, 
 
 has long since been exploded, or if 
 not, should be without delay.' As an 
 action for an accounting, all the re- 
 lief which the plaintiff claims, and to 
 which he has been found entitled, in 
 this action, could have been secured 
 in the apjKdlant'a action. If .Judd 
 was a necessary party to a complete 
 determination of the controversy, he 
 could have been made a party to 
 that action upon motion of the plain- 
 tiff in this action, or the court could 
 upon its own motion, have directed 
 that he be brought in, whenever it 
 appeared, in the progress of the ac- 
 tion, that his presence was required 
 for a full and final adjudication of 
 the rights of the parties. Code, 5 
 452." 
 
 68. Pond v. Harwood, 139 N. Y. 
 111. 34 N. E. 768. 
 
 69. Mutual Life Ins. Co. v. Brune, 
 96 U. S. 588, 24 L. Ed. 737, per 
 Strong, J.: "A bill in equity was 
 pending in a foreign jurisdiction 
 when the appellee's suits at law were 
 brought to enforce the payment of 
 the policies to Mrs. Barry rather than 
 to Brune or his assignee, and that 
 both the present complainant and de- 
 fendant were parties to that bill. 
 This we think was not sufficient to 
 justify the injunction for which the 
 appellant prayed. At law the pen- 
 
 910
 
 Staying Actions and Suits. 
 
 §606 
 
 of a prior suit in a State court is not a bar to a subsequent suit 
 in a Federal Circuit Court, though the suits are between the same 
 parties and for the same cause of action. 70 
 
 § 606. Enjoining proceedings in another State. — Where the 
 subject matter of a controversy is situated within another State or 
 country, but the parties are within the jurisdiction of the court, 
 they may be enjoined, in a proper case, from taking any proceeding 
 affecting the subject matter. 71 And while it is a matter of great 
 delicacy, as leading to the danger of conflicts of jurisdiction, it is 
 well settled that a court of equity may restrain a party of whom 
 it has jurisdiction from prosecuting a suit in the courts of another 
 State. 72 So it has been declared that a court of equity may inter- 
 
 dency of a former action between the 
 same parties for the same cause is 
 pleadable in abatement to a second ac- 
 tion, because the latter is regarded as 
 vexatious. But the former action must 
 be in a domestic court; that is in a 
 court of the State in which the sec 
 ond action has been brought. Maule 
 v. Murray, 7 T. R. 470; Buckner v. 
 Finley, 2 Pet. 580; Bowne v. Joy, 9 
 Johns. 221; Smith v. Lathrop, 44 Pa. 
 St. 320. The rule in equity is anal- 
 ogous to the rule at law. Story, Eq. 
 PI., § 741. In Poster v. Vassall, 3 
 Atk. 587, Lord Hardwicke said: 'The 
 general rule of courts of equity with 
 regard to pleas is the same as in 
 courts of law, but exercise with a 
 more liberal discretion.' In Lord 
 Dillon v. Avares, 4 Ves. 357, a plea 
 of a pending suit in a court of chan- 
 cery in Ireland was overruled in the 
 English court of chancery. Certain it 
 is that the plea of a suit pending in 
 equity in a foreign jurisdiction will 
 not abate a suit at law in a domes- 
 tic tribunal. This was shown in a 
 very able decision made by the Su- 
 preme Court of Connecticut in Hatch 
 v. Spofford, 22 Conn. 485, where the 
 
 authorities are learnedly reviewed." 
 See, also, Lalliu v. Brown, 7 Met. 
 570; Blanchard v. Stone, 10 Vt. 234; 
 Imlay v. Ellefson, 2 East, 457 ; Ustell 
 v. Lepage, 10 Eng. L. & Eq. 255; 
 Walsh v. Durkin, 12 Johns. (N. Y.) 
 101; Mitchell v. Bunch, 2 Paige (N. 
 Y.), 020. 
 
 70. Stanton v. Embrey, 93 U. S. 
 548; Crescent City Co. v. Butchers' 
 Co., 12 Fed. 225. And see Cox v. 
 Mitchell, 7 C. B. (N. S.) 55; Wood 
 v. Lake, 13 Wis. 91; Wadleigh v. 
 Veasie, 3 Sumn. 107; Loring v. 
 Marsh, 2 Cliff. 322; Salmon v. Woot- 
 ton, 9 Dana, 422; Yelvertou v. Con- 
 ant, 18 N. H. 124; Davis v. Mor- 
 ton, 4 Bush (Ky.), 444. 
 
 71. See §§ 75-82, ante. 
 
 There is no question as to the 
 right to restrain a person over 
 whom the court has jurisdiction from 
 bringing a suit in a foreign State. 
 Royal League v. Kavanagh, 233 111. 
 175, 84 N. E. 178. 
 
 72. United States. — Gage v. River- 
 side Trust Co., 80 Fed. 984. 
 
 Arkansas. — Pickott v. Ferguson, 45 
 Ark. 177, per Smith, J.: ' The juris- 
 diction is established by the clear 
 
 911
 
 §606a 
 
 Staying Actions and Suits. 
 
 fere to prevent the prosecution of an action which is inequitable 
 and unconscionable even though such action is pending in the 
 courts of another State and without regard to whether tho action 
 in the former tribunal was commenced before or after the domestic 
 tribunal may have acquired jurisdiction over it. 73 And in a suit 
 by a receiver to restrain a resident creditor from maintaining a 
 .suit in another State against the corporation for which the receiver 
 has been appointed, it is no defense that the plaintiff has an ade- 
 quate remedy at law. 74 
 
 § GOGa. Same subject; suit in one State to evade laws of 
 another State. — A suit instituted in one Slate, l>v one who is a 
 citizen of another State, in which the defendant also resides, may 
 be enjoined by a court of equity of the latter State where it appears 
 that the bringing of the suit is for the purpose of evading or 
 defeating the operation of the laws of the State where both parties 
 reside. 75 So a party to a contract is entitled to an injunction 
 restraining the prosecution in another State of an action upon 
 such contract where the purpose of such action is to avoid the 
 statutes of tho State in which the contract was made and to be 
 
 weight of authority, as well as by the 
 necessity of interposition, under 
 special circumstances, where the for- 
 eign suit appears to be ill calculated 
 to answer the ends of justice. French 
 v. Hay, 22 Wall. 250; Dehon v. Fos- 
 ter. 4 Allen, 545; Bushby v. Munday, 
 5 Madd. Ch. 297; Carron Iron Co. v. 
 Maclaren, 5 H. L. Cas. 410, 438." 
 
 California. — Spreckles v. Hawaiian 
 C. & S. Co., 117 Cal. 377, 40 Pac. 353. 
 
 Nebraska. — Hartford Life A. I. Co. 
 v. Cummings, 50 Neb. 23G, GO N. W. 
 782. 
 
 England.— Christian v. Christian, 
 78 Law T. Rep. 86. 
 
 73. Dinsmore v. Neresheimer, 32 
 Hun (N. Y.), 204. 
 
 74. Davis v. Butters Lumber Co., 
 132 N. C. 232. 43 S. E. 650. The 
 court said: "To the point presented 
 
 by the defendant's demurrer are 
 terms that the plaintiff has no equity 
 because he has a remedy at law, easy 
 and adequate, it should be said that 
 the courts of this State will not per- 
 mit one of its own citizens to com- 
 pel the officer of the court to go into 
 a foreign jurisdiction to litigate his 
 rights. It is the policy and usually 
 the rule of the law to compel all 
 claims to assets in the hands of the 
 receiver to be litigated in the original 
 cause. This coure prevents confu- 
 sion and conllicts and saves costs and 
 expenses." Per Connor, J. 
 
 75. Miller v. Gittings. 85 Md. 601, 
 37 Atl. 372, 60 Am. St. Rep. 352, 
 37 L. R. A. 654. Compare Edgell v. 
 Clarke, 10 App. Div. (N. Y.) 199, 45 
 N. Y. Supp. 979. 
 
 912
 
 Staying Actions and Suits. 
 
 §606a 
 
 performed and in which the parties reside. 76 The principle has 
 also frequently been applied where proceedings have been com- 
 menced in another State for the purpose of avoiding the exemption 
 laws of the State in which the parties reside. 77 So it has 'been held 
 that an injunction will lie to restrain a resident of Indiana from 
 prosecuting an attachment proceeding against another resident in 
 the courts of another State, in violation of an Indiana statute 
 which makes it an offense to send a claim against a debtor out of 
 the State for collection, in order to evade the exemption laws. 78 
 
 76. Sandage v. Studabaker Bros. 
 Mfg. Co., 142 Ind. 148, 41 N. E. 380, 
 51 Am. St. Rep. 105, 34 L. R. A. 
 3G3. 
 
 77. Indiana. — Wilson v. Joseph, 
 107 Ind. 490, 8 N. E. 61G. 
 
 Iowa. — Teager v. Landsley, 69 
 Iowa, 725, 27 N. W. 739. 
 
 Missouri. — Kelly v. Siefert, 71 Mo. 
 App. 143. 
 
 Neio Jersey. — Macgarum v. Moon, 
 63 N. J. Eq. 580, 53 All. 179. 
 
 IVisconsin. — Griggs v. Docter, 89 
 Wis. 101, 01 N. W. 701, 30 L. R. A. 
 360, 40 Am. St. Rep. 724. 
 
 78. Wilson v. Joseph, 107 Ind. 
 490, 8 N. E. 616, per Elliott, J.: 
 " Oar own court has recognized and 
 enforced this equitable principle, aa 
 indeed, all the courts have done, 
 without any material diversity of 
 opinion. Bethell v. Bethell, 92 Ind. 
 318. The principle asserted by these 
 authorities supplies the initial propo- 
 sition for our decision, and the only 
 possible doubt that can arise is 
 whether it applies to such a case as 
 the present. The authorities do not 
 apply it to such cases, and in our 
 judgment they proceed on sound and 
 satisfactory reasoning. In Snook v. 
 Snetzer, 25 Ohio St. 516, the ques- 
 tion was presented, as it is here, and 
 it was held that an injunction would 
 lie. The same view of the law was 
 
 asserted in Dehon v. Foster, 4 Allen, 
 545, where it was said: 'An act 
 which is unlawful and contrary to 
 equity, gains no sanction or validity 
 by the mere form or manner in 
 which it is done. It is none the less 
 a violation of our laws, because it is 
 effected through the instrumentality 
 of a process which is lawful in a for- 
 eign tribunal. By interposing to pre- 
 vent it, we do not interfere with the 
 jurisdiction of courts in other States, 
 or control the operation of foreign 
 laws. We only assert and enforce 
 our own authority over persons 
 within our jurisdiction, to prevent 
 them from making use of means by 
 which they seek to countervail and 
 escape the operation of our own 
 laws, in derogation of the rights and 
 to the wrong and injury of our own 
 citizens.' In the recent case of Cun- 
 ningham v. Butler, 142 Mass. 47, 6 
 N. E. 782, the general principle which 
 rules here is strongly asserted and 
 rigidly enforced. The question came 
 before the court in Engel v. Scheuer- 
 man, 40 Ga. 200, in the same form 
 as it comes before us, and it was held 
 that an injunction would lie. What 
 we have said of the case just men- 
 tioned applies to Keyser v. Rice, 47 
 Md. 203, where the precise question 
 was adjudicated. The Supreme Court 
 of Kansas, in two recent cases, adopts 
 
 913 
 
 58
 
 §§ GOGb, C07 Staying Actions and Suits. 
 
 § 60Gb. Enjoining appeals. — Where under the constitution and 
 laws of a State a party has a clear right to an appeal, an injunction 
 will not be granted to prevent such an appeal. 79 So in a case in 
 New York it was decided that a party should not be restrained 
 from perfecting his appeal until he had formally and in an ef- 
 fective way surrendered such right and that if there is any good 
 reason to question the validity of an appeal it can be well and 
 sufficiently done by motion in the original action. 80 And in an 
 early case in Mississippi it was decided that where the bill con- 
 tains no charges of fraud as to the parties who took the exceptions 
 and merely alleges certain mistakes and omissions as to one or two 
 facts there is no ground for enjoining the prosecution of a writ of 
 error. 81 
 
 § G07. In cases of usury. — Equity will enjoin a trustee from 
 proceeding to sell, under a deed of trust given for the purpose of 
 securing a loan of money at a usurious rate of interest. 82 But an 
 action to enjoin a mortgage sale, on the ground that usurious 
 interest which has been paid should be applied on the mortgage 
 debt, cannot be maintained, as the effect of such an application 
 would be to allow the recovery of the usurious interest; 83 for in 
 such cases equity will follow the law and refuse to aid a party 
 who has paid such unlawful interest to recover it back. 84 Again, 
 though it is provided by Code that the charging of usurious in- 
 terest shall be deemed a forfeiture of the entire interest, yet a 
 person who seeks in equity to enjoin a sale under a mortgage bear- 
 ing usurious interest, must pay the principal and legal interest, on 
 the principle that he who would have equity must do equity. 85 
 
 substantially the same views as those 81. Ford v. Weir, 24 Miss. 563. 
 
 asserted in the cases to which we 82. Hooker v. Austin, 41 Miss. 
 
 have .referred. Zimmerman v. 717. 
 
 Franke, 34 Kan. 650. 9 Pac. 747; 83. Livingston v. Burton, 43 Mo. 
 
 Missouri Pacific R. VV. Co. v. Maltby, App. 272. 
 
 34 Kan. 125, 8 Pac. 235." See, also, 84. Murdock v. Lewis, 26 Mo. App. 
 
 § 412, ante, and the cases there cited. 247. 
 
 79. State v. Jacksonville, P. & M. 85. Carver v. Brady, 104 N. C. 
 R. Co., 15 Fla. 201. 219, 10 S. E. 565; Cook v. Patterson, 
 
 80. Kilmer v. Bradley, 45 N. Y. 103 N. C. 127, 9 S. E. 402; Manning 
 Sup«r. Ct. (13 J. & S.) 585. v. Elliott, 92 N. C. 48; Purnell v. 
 
 914
 
 Staying Actions and Suits. § 607 
 
 And a similar conclusion has been reached in Illinois. 86 And where 
 there were outstanding notes against plaintiffs, a great part of 
 which represented usurious interest on former evidences of in- 
 debtedness, which had been renewed, and by which such interest 
 was made to represent principal, and the notes were held by a 
 party having notice of the usury, and were about to mature, and 
 to be transferred to an innocent holder, it was held that the 
 plaintiffs were entitled to injunctive relief. 87 But where, on a 
 bill filed by the mortgagor to enjoin a foreclosure sale, on the 
 ground that the mortgage debt and interest had been paid, it 
 appeared that the alleged payment consisted in part of usurious 
 interest, of which the assignee of the mortgage had no notice, it 
 was held that the mortgagor was not entitled to an injunction, but 
 would have been if the assignee had taken the mortgage with notice 
 of the usury. 88 In an early case in New York, where an action at 
 law was commenced to recover upon a contract alleged to be 
 usurious, and the defendant in the action filed a bill in chancery 
 praying for an injunction to restrain the proceedings, but alleged 
 no defect in the means of establishing his defense at law, it was 
 held that the bill could not be sustained. 89 And in an action 
 brought to avoid a promissory note on the ground of usury, and to 
 restrain a suit at law commenced thereon, the usurious contract 
 must be substantially set forth in the complaint and must be proved 
 as laid. 90 
 
 Vauglian, 82 N. C. 134; Simonton v. And see Equitable Mut. Land Assoc. 
 
 Lanier, 71 N. C. 498. v. Becker, 45 Md. 632. 
 
 86. Tooke v. Newman, 75 111. 215. 89. Minturn v. Farmers' Loan & 
 See, also, Walker v. Cockey, 38 Md. T. Co., 3 N. Y. 498. See, also, Atkin- 
 75; Powell v. Hopkins, 38 Md. 1; son v. Allen, 71 Fed. 58, 17 C. C. A. 
 Hill v. Reifsnider, 39 Md. 433. 570, 36 U. S. App. 255. 
 
 87. Willielmson v. Bentley, 25 Neb. 90. Morse v. Cloyes, 11 Barb. (N. 
 473. And see Farwell v. Meyer, 35 Y.) 100. $ 
 111. 40. 
 
 88. Gantt v. Grindall, 49 Md. 310. 
 
 915
 
 §§ 008, 609 To Aid Other Remedies. 
 
 CHAPTER XX. 
 
 To Aid Other Remedies. 
 
 Section 608. The auxiliary usefulness of injunctions. 
 
 609. In aid of execution. 
 
 610. Same subject — Under inherent equity powert. 
 
 611. In aid of receivers. 
 
 612. To aid writ of possession. 
 
 613. In aid of assignments for benefit of creditors. 
 
 614. In aid of relief against usury. 
 
 Section 608. The auxiliary usefulness of injunctions. — The 
 adaptability of the remedy by injunction to the circumstances 
 which require its exercise has already been noticed. 1 The chief 
 characteristic of the preliminary injunction is its auxiliary useful- 
 ness as an incident to the action, pending which it is grant, d. 3 
 Injunctions in aid of attachments have already been considered; 3 
 as have also injunctions in aid of specific performance. 4 As a 
 general rule, attaching creditors cannot, before judgment, have 
 an injunction to prevent execution sales of their debtor's property, 
 on the ground of collusion between him and his assignee for the 
 benefit of creditors. 5 But where the owner of land has made a 
 parol contract to sell it, and the purchaser has entered into pos- 
 session, and made expensive improvements, and files a bill for 
 specific performance and to enjoin the vendor from removing 
 timber and interfering with plaintiff's possession and making any 
 further transfer of the title to the land, and the evidence is con- 
 flicting, there is no abuse of discretion in granting a preliminary 
 injunction and keeping matters in statu quo until the final hear- 
 ing. 6 
 
 § 609. In aid of execution. — A court is vested with full author- 
 ity to enforce its judgments, ordering a sale of property by enjoin- 
 
 1. Section 2, ante. 5. Artman v. Giles, 155 Pa. St. 
 
 2. Sections 109, 110, ante. 409, 26 Atl. 668. 
 
 3. Section 8, ante. 6. Thigpen v. Aldridge, 92 Ga. 
 
 4. Sections 7, 443, et seq., ante. 563, 17 S. E. 860. 
 
 916
 
 To Aid Othee Remedies. § 609 
 
 ing parties to the litigation from interfering with such sale, and 
 from slandering the title to said property, and from interfering 
 with the title and possession of any purchaser at such sale. 7 A 
 Code provision for the issuance of an injunction order restraining 
 any person from " making or suffering any transfer or other dis- 
 position of, or interference with the property of the judgment 
 debtor, or the property or debt concerning which any person is 
 required to attend and be examined, until further direction in 
 the premises," does not apply to the property acquired after the 
 issuance of the order. 8 But where plaintiifs recovered judgment 
 in replevin for the possession of a specific chattel, namely, a 
 diamond ring, and execution was issued and returned without 
 obtaining such possession, it was held they were entitled to a 
 mandatory injunction directing defendant to deliver such prop- 
 erty to them or to the sheriff. 9 Under the New York Code of 
 Procedure, as amended by the laws of 1888, where the property 
 of a debtor has been levied on under different executions and 
 various indemnitors have indemnified the sheriff, a temporary in- 
 junction may be granted restraining the creditors from enforcing 
 the executions, until the rights of the parties are determined ; for, 
 in such a case, it is uncertain for what property each indemnitor is 
 liable, and, therefore, an action brought by the debtor against 
 divers indemnitors would be an inadequate remedy. 10 An injunc- 
 tion made in supplementary proceedings, forbidding judgment 
 debtors from transferring or otherwise disposing of their property, 
 prohibits them from making a general assignment without prefer- 
 ence for the benefit of creditors. 11 Again, where a judgment crcd- 
 
 7. McClellan v. Kerby, 4 Ind. Terr. 9. Cain v. Cain, 20 N. Y. Supp. 
 736, 76 S. W. 295. 45, 28 Abb. N. C. 423. 
 
 8. Rainsford v. Temple (Com. PI. 10. Newconibe v. Irving Nnt. Bank, 
 1893). 22 N. Y. Supp. 937. Sandford 51 Hun, 220, 4 N. Y. Supp. 37. 
 
 v. Goodwin, 20 N. Y. Civ. Pro. 276, 11. Canda v. Gollner, 73 Hun, 493, 
 
 note, is to the same effect. In New- 26 N. Y. Supp. 449, per Barnard, P. 
 
 ell v. Cutler, 19 Ilun, 74, the judg- J.: "It cannot be claimed but that 
 
 ment debtor had earned the wages the defendant violated the express 
 
 before the order was served on him, words of the order forbidding the 
 
 but collected them afterwards, and transfer. This violation was made by 
 
 they were therefore held to be sub- his voluntary act. The plaintiffs were 
 
 ject to the order. injured by this act; tbey bad taken 
 
 917
 
 § 610 To Aid Other Remedies. 
 
 itor's bill is filed, praying for a discovery of property and interests 
 of the debtor, which are unknown to the complainant, and for the 
 appointment of a receiver, an injunction may be granted restrain- 
 ing the debtor from encumbering or disposing of his property. 12 
 But tho executors of a deceased plaintiff, whose judgment remains 
 unsatisfied, are not entitled to apply for a receiver of a sum due 
 to the defendant under a will, and for an injunction to restrain 
 defendant from dealing or parting therewith, without having ap- 
 plied for an order that the proceedings be continued in their 
 names. 13 And a creditor who, by prudent compliance with the law, 
 has acquired two securities, will not be compelled by injunction, 
 and to his own prejudice, to first resort to a particular one of such 
 securities in order to benefit a creditor who can reach only the 
 other security. 14 
 
 § 010. Same subject; under inherent equity powers. — A court 
 having general jurisdiction in law and equity has, for the purpose 
 of enforcing obedience to its judgments, an inherent power not 
 derived from statutes, which it is not easy to define; and while 
 this power is not to be exercised in an arbitrary manner, it is not 
 exhausted until the purpose for which the judgment was rendered 
 has been completely attained. Thus, in New York, where a de- 
 fendant in ejectment, pending a statutory new trial, sought to 
 nullify the ejectment against him by retaking possession of the 
 premises, the Supreme Court ordered him to restore such posses- 
 sion, and in the future to desist from any forcible or other physical 
 resistance to the enforcement of the execution, or any interference 
 with the plaintiff's possession. 15 And while a court of equity will 
 
 steps by which they could have had 1.3. Norburn v. Norburn (1893), 10 
 
 the first lien on the estate, real and Reports (Eng.), 214. 
 
 personal, of the judgment debtor. 14. Farmers &. Merchants Bank v. 
 
 Code, § 246!); McCorkle v. Herrman, Anthony, 39 Neb. 3<*3, 57 N. W. 1029; 
 
 117 N. Y. 297, 22 N. E. 948." Sweet v. Redhead, 70 III. 374. 
 
 12. Dutton v. Thomas, 97 Mich. 15. De Lancey v. Piepgras, 141 N. 
 
 93, 50 N. W. 229. And see Rankin v. Y. 88, 35 N. E. 1089, per O'Brien, 
 
 Rothschild, 78 Mich. 10, 43 N. W. J.: "If the defendant in an action 
 
 1077; Bagley v. Scudder, 66 Mich, of ejectment may, after the plaintiff 
 
 97, 33 N. W. 47. has been put in possession, return 
 
 918
 
 To Aid Othek Remedies. 
 
 §610 
 
 not, ordinarily, entertain a suit solely for the purpose of establish- 
 ing the title of a party to real estate, or for the recovery of its 
 possession, it has jurisdiction to interfere by injunction in order 
 
 and resume the possession by force, 
 after a sliort interval of tinie, in defi- 
 ance of the judgment, and the plain- 
 tiff has no remedy except a resort to 
 some new and independent action or 
 proceeding, then there is at once re- 
 vealed an obvious defect in our 
 methods of administering justice in 
 euch cases. The power of the court 
 to prevent and punish resistance to 
 the execution of its judgments and 
 decrees is not exhausted until the 
 purpose for which the judgment was 
 rendered has been completely at- 
 tained. It is true that a judgment 
 for the recovery of the possession of 
 real property is to be enforced under 
 the Code by execution, but the ques- 
 tion as to the power of the court to 
 interpose in aid of that process while 
 resistance is made or threatened to 
 the duty imposed upon the sheriff, is 
 not necessarily excluded. 
 Whatever may be the general rule 
 with respect to the power of the court 
 to aid by order the action of the 
 sheriff in delivering possession to the 
 successful party, and making such de- 
 livery effective and complete, in such 
 cases, it is apparent that this case 
 stands upon peculiar facts. The de- 
 fendant took advantage of a favor 
 granted by the court in amending a 
 judgment and execution by forcibly 
 resuming the possession in contempt 
 of the judgment. Had this purpose 
 been disclosed when he was before 
 the court asking the favor, it might 
 well have been refused, or granted 
 only upon the condition that no at- 
 tempt would be made to disturb the 
 plaintiff's possession, which had been 
 
 awarded to her by the judgment and 
 secured by the execution. When the 
 real purpose of the amendments was 
 disclosed to the court, it had power 
 to amend or modify its former order, 
 and insert in it any conditions which 
 might have been inserted in the first 
 instance. In short, before granting 
 the favor which the defendant asked, 
 it had the power to incorporate into 
 it as a condition, all the substantial 
 provisions of the mandatory order ap- 
 pealed from by forbidding any at- 
 tempt to resume possession, and di- 
 recting that possession be restored if 
 then resumed. Whatever power the 
 court had originally, it could exercise 
 and make effective subsequently, when 
 informed that its favor amending the 
 judgment and execution had been 
 abused by the forcible exclusion of 
 the plaintiff from the possession in 
 defiance of the judgment. The court 
 had been induced to make an order 
 which was used for a purpose never 
 intended, and which would have been 
 forbidden if that purpose of the de- 
 fendant had been disclosed. Under 
 such circumstances the court, in vin- 
 dication of its own dignity, and for 
 the protection of the rights of the 
 parties, had the power to undo all the 
 mischief resulting from the modifica- 
 tion of the judgment and execution, 
 which it had been induced to make, 
 and the order appealed from may be 
 regarded as made for that purpose, 
 and under this general inherent 
 power. It cannot be doubted that 
 when a party obtains an undue ad- 
 vantage by using an order of the 
 court for a purpose contrary to its 
 
 919
 
 § Oil To Aid Other Remedies. 
 
 to carry Its own decrees into effect and to avoid the re-litigation of 
 questions once settled between the same parties. 18 
 
 §611. In aid of receivers. — The incidental usefulness of an 
 injunction is apparent also from the fact that the appointment of 
 receivers of a corporation, in the absence of an injunction restrain- 
 ing the officers of such corporation from defending a pending 
 action against it, does not deprive such officers of the right to 
 continue the defense thereof; and such receivers have no stand- 
 ing unless made parties to the action, to move to set aside the 
 answer interposed by such officers and the judgment i ntered 
 thereon, and for leave to serve an answer on their own behalf. 17 
 Where a suit is pending by a judgment creditor of an insolvent 
 domestic corporation to set aside mortgages of its assets, and 
 another suit is brought for the same purpose by the receiver of such 
 corporation, an injunction will bo granted upon the application 
 of such receiver to stay the proceedings of the judgment creditor, 
 in order to prevent a multiplicity of suits for the determination 
 of the same matters; the receiver representing the interests of all 
 creditors of the insolvent. 18 After a creditor of an insolvent firm 
 of wholesale clothiers had attached their entire stock, other per- 
 sons claiming to be creditors for goods sold assumed to rescind 
 the sales, as having been induced by fraud, and replevied the 
 
 spirit and intention, and which could iliary to the enforcement of the judg- 
 
 and would have been guarded against ment lien. 
 
 had the unlawful purpose been dis- 16. Root v. Wool worth, 150 U. S. 
 
 closed when the order was made, the 401, 14 S. Ct. 136, 37 L. Ed. 
 
 court baa power to deprive him of 1123; Kershaw v. Thompson, 4 
 
 this advantage resulting from an Johns. Ch. (N. Y.) 609, 612; 
 
 abuse of the order, by modifying or Schenck v. Conover, 13 N. J. Eq. 220; 
 
 amending it, or granting a new order BufTuin's Case, 13 N. H. 14; Davis v. 
 
 to correct the abuse. It seems to me Bluck, 6 Beav. 393; Shepherd v. Tow« 
 
 that the power of the court to make good, Turn & Buss, 379. 
 the order in question can be upheld 17. Farmers Loan & Trust Co. v. 
 
 upon this principle, and having the Hoffman House, 7 Misc. 358, 27 N. 
 
 power, the manner of its exercise was Y. Supp. 634, following Tracy v. 
 
 in its discretion." And see Noyes v. Selma Bank, 37 N. Y. 523. 
 Vickers, 39 W. Va. 30, 19 S. E. 429, 18. Brower v. Baucus, 60 Hun, 
 
 where the injunction was merely aux- 579, 14 N. Y. Supp. 402. 
 
 920
 
 To Aid Other Remedies. §§ 612, 613 
 
 goods, which they took from the possession of the sheriff. There 
 were more than fifty of these actions, some claiming cloth, some 
 linin-s, and others trimmings; so that entire garments were re- 
 plevied by persons who had merely furnished the buttons thereon, 
 and others were sought to be taken by several different creditors. 
 The fraud complained of consisted of false representations as to 
 the solvency of the firm, made to the different creditors as part 
 of the general purpose to defraud. It was held that the attaching 
 creditor might maintain a suit to restrain further proceedings 
 in replevin, to have a receiver appointed, and to compel the liti- 
 gation of all the adverse claims in one suit. 19 
 
 § 612. To aid writ of possession. — After judgment for posses- 
 sion in ejectment, plaintiff may enjoin defendants from unlawfully 
 interfering with the execution of the writ of possession. 20 
 
 § 613. In aid of assignments for benefit of creditors.— Where 
 
 the assignee for the benefit of creditors refuses, on the request of 
 a general creditor, to 'bring an action to set aside a judgment 
 fraudulently confessed by the debtor, the creditor, having brought 
 suit for such purpose, may have an injunction pendente lite 
 against the payment over of the proceeds of the execution, such 
 an action being in aid of the assignment, and to protect the trust 
 fund. 21 
 
 19 National Park Bank v. God- settled in the former action. It 
 
 d 131 N Y 494 30 N E. 506, fol- would avail the appellants nothing if 
 
 lowing Board, 'etc., 'v. Deyoe, 77 N. Y. it were conceded that there was some 
 lowing , defect . n the noUce gJven jn the eject . 
 
 21 20 Ilawkins v. McDougal, 126 Ind. ment proceedings or some error in the 
 
 MQ 25 N E 820, per Elliott, J.: rulings of the court in that action, 
 
 "The facts appear in the opinion for such defects and errors are not 
 
 filtd in the case of Hawkins v. State, availing in a collateral attack. 
 
 ^ Tnd 57^25 N. E. 818. As the Sauer v. Twining, 81 Ind. 306; Krug 
 
 !nnlicants were unlawfully interfer- v. Davis, 85 Ind. 309; Pickering v. 
 
 •' wttt M execution of a writ by State, 106 Ind. 228, 6 N. E. 611; 
 
 2 Ih'eriO l the injury of the a P; Kleyla . Haskett, 112 Ind. 5,5, 14 
 
 rt W££^££ "SL-v, C0 V " Y ' 
 
 L as tothe right to possession was Supp. 161. And see Preston v. 
 
 921
 
 §014 
 
 To Aid Otheb Rxmxdxes. 
 
 $ G14. In aid of relief against usury. — Where in an action to 
 redeem from a mortgage under which the mortgagee has advertised 
 
 the Land f<»rsale the complaint alleges that the mortgage is QgurioiU 
 and was made payahle in another State to avoid the usury laws of 
 the Stat.- where thr land is situated, there is a "serious issue" 
 between tlx- parties entitling plaintiff to an order restraining the 
 sale of the property till the hearing." 
 
 Spaulding, 120 III. 231. In an action 
 by a general crcilitor to sot aside 
 judgments against the debtor, where 
 the assignee for the benefit of credi- 
 tors, denying the allegation that he 
 refused to bring an action to set aside 
 these judgments, shows that the pro- 
 
 c Is of the execution sales on these 
 
 judgments are on deposit with a trust 
 company, subject to the order of the 
 judgment creditors and the assignee, 
 and that he lias commenced an action 
 to set these judgments aside, an in- 
 junction will not lie to restrain the 
 sheriff from paying over the proceeds. 
 Third Nat. Hank v. Clark, 1 X V. 
 Supp. 207. A9 to the general right of 
 a beneficiary to act in his own name 
 when a trustee refuses to protect his 
 Interests, see VVeetjen v. Vibbard, 5 
 Hun, 2G5; Western R. Co. v. Nolan, 
 48 N. Y. 513. And as to the right of 
 
 judgment creditors to compel the ex- 
 ecution of his trust by an assignee for 
 their benefit, see ('rouse v. Krothing- 
 ham, !>7 N. V. 113. 
 
 22. Meronej v. Atlanta, etc., Loan 
 Assoe'n. 112 N. C. 8-12, 17 8. E. 837, 
 per Curium: "If it is true, as the 
 plaintiff alleges, that the contract 
 set out in the complaint was made 
 payable in Georgia to avoid tbe usury 
 
 laws of this State, that contract will 
 be adjudged to l>e usurious, what- 
 ever may be the law of that State. 
 There is, therefore, a ' serious issue ' 
 between the partiea which, under the 
 
 rule established by Whittaker v. Hill, 
 M X C. 2, 1 S. E. 63!); Harrison v. 
 Bray, 92 N. C. 488, and Davis v. Las- 
 siter, 112 N. C. 128, 10 S. E. 809, 
 entitles the plaintiff to have the re- 
 straining order continued in force to 
 the bearing." 
 
 922
 
 Against Judgments ; General Considerations. 
 
 CHAPTER XXI. 
 
 Against Judgments ; General Considerations. 
 
 Section 615. General rule. 
 
 616. Amount due must be paid or tendered. 
 
 617. No injunction where remedy at law — Appeal — Certiorari. 
 617a. Same subject continued. 
 
 618. Judgment not enjoined if reviewable. 
 
 619. Set-offs. 
 
 620. Cases of set-off continued. 
 
 621. Enjoining judgment founded on perjury. 
 
 622. Enjoining judgment on bond given to suppress forgery. 
 
 623. Execution for costs and interest thereon. 
 
 624. Restraining levy to extort costs. 
 
 625. Enjoining execution where judgment has been paid. 
 
 626. Same subject. 
 
 627. Same subject — Constructive payment. 
 
 628. Enjoining judgment for alimony. 
 
 629. Enjoining judgment for usury. 
 
 630. Same subject — Legal interest to be paid or tendered. 
 ,631. Enjoining judgment when summons not served. 
 632. Same subject. 
 
 633.Same subject continued. 
 
 634. Enjoining judgment if summons served on Sunday. 
 
 635. Judgment without notice of hearing— Defective summons. 
 
 636. Enjoining judgment for irregularities. 
 
 637. Enjoining void judgments. 
 
 638. Judgments void for want of jurisdiction. 
 
 639. Default judgments. 
 
 640. Default through neglect. 
 
 641. Same subject — In Mississippi and Texas. 
 
 642. Where default judgment only irregular— Where void. 
 
 643. Enjoining confessed judgments. 
 
 644. Same subject. 
 
 645. Chancery jurisdiction over judgments at law. 
 
 646. Same subjects — In other States. 
 
 647. Same subject continued. 
 
 648. Statutory jurisdiction — California, etc. 
 
 649. Same subject — Indiana, Kentucky, etc. 
 
 650. Jurisdiction to enjoin federal judgments. 
 
 651. Enjoining process as between State and Federal courts. 
 
 652. Parties. 
 
 653. Parties continued. 
 
 923
 
 §015 Against Judgments; Gexekal Considerations 
 
 Section 654. Defect of parties — Effect of. 
 
 655. Must be judgment or lien creditors. 
 
 656. Same subject — Pieferred liens. 
 
 657. Enjoining judgment barred by laches. 
 
 658. Sureties' suit to enjoin judgment. 
 
 659. Same subject. 
 
 660. Enjoining arbitrators' awards. 
 
 601. When bankrupt may enjoin execution. 
 
 662. To prevent multiplicity of suits. 
 
 663. Preliminary injunctions — Requisites. 
 
 664. Refunding bond. 
 
 665. Requisites of bill to enjoin judgment, etc. — Demurrer. 
 
 666. Multifariousness. 
 
 667. Staying injunction judgment by appeal. 
 
 668. Release of errors by enjoining judgment. 
 
 669. Effect of enjoining all proceedings. 
 
 670. Effect of enjoining execution on Statute of Limitations. 
 
 671. Miscellaneous cases. 
 
 Section 615. General rule. — In 1813, Chief Justice Marshall 
 thus laid down a general rule by which courts of equity are guided 
 when asked to enjoin the enforcement of judgments of courts of 
 law: "Without attempting to draw any precise line to which 
 courts of equity will advance, and which they cannot pass, in re- 
 straining parties from availing themselves of judgments obtained 
 at law, it may safely be said that any fact which clearly proves it 
 to be against conscience to execute a judgment, and of which the 
 injured party could not have availed himself in a court of law, or 
 of which he might have availed himself at law, but was prevented 
 by fraud or accident, unmixed with any fault or negligence in 
 himself or his agents, will justify an application to a court of 
 chancery. On the other hand, it may with equal safety be laid 
 down as a general rule that a defense cannot be set up in equity 
 which has been fully and fairly tried at law, although it may be 
 the opinion of that court that the defense ought to have oeen sus- 
 tained at law." ! So while it is true that a judgment cannot be col- 
 
 1. Marine Ins. Co. v. Hodgson, 7 valued policy of marine insurance by 
 
 Cranch (U. S.), 332, 3 L. Ed. 362. an overvaluation of the ship, and that 
 
 In this case a bill for injunctive re- the complainant had been prevented 
 
 lief alleging that a fraud had been from making his defense at law, was 
 
 practiced upon the underwriters in a dismissed by the decree and the de- 
 
 924
 
 Against Judgments; Genebal Considerations. § 616 
 
 laterally impeached in an action at law, yet a judgment may be 
 collaterally attacked and enjoined in a suit in equity, where any 
 fact exists which clearly proves it to be against conscience to exe- 
 cute the judgment, and of which the injured party could not have 
 availed himself in a court of law, or of which he might have 
 availed himself at law, but was prevented by fraud or accident, 
 unmixed with any fault or negligence in himself or his agents. 
 
 r 616 Amount due must be paid or tendered.— It would be 
 opposed to fundamental principles of equity to grant injunctive 
 relief to a judgment debtor unless he is willing to do equity, by 
 paying or offering to pay such part of the judgment as is really 
 due 3 Thus an administrator will not be enjoined from collecting 
 
 cree affirmed by the Federal Supreme 
 Court. The rule laid down in the text 
 was held to be the law prevailing in 
 the District of Columbia, not by rea- 
 son of any local peculiarity, but be- 
 cause it was a general principle of 
 equity jurisprudence. It was re- 
 peated in Hendrickson v. Hinckley, 17 
 How. 443, 15 L. Ed. 123, where the 
 rule was condensed by Mr. Justice 
 Curtis into the following statement: 
 " A court of equity does not interfere 
 with a judgment at law unless the 
 complainant has an equitable defense, 
 of which he could not avail himself 
 at law, because it did not amount to 
 a legal defense, or had a good defense 
 at law, which he was prevented from 
 availing himself of by fraud or acci- 
 dent, unmixed with negligence of him- 
 self or his agents." See, also, Creath 
 v. Sims, 5 How. 192, 12 L. Ed. Ill; 
 Walker v. Robbins, 14 How. 584, 14 
 L. Ed. 552; and Brown v. County of 
 Buena Vista, 95 U. S. 157, 24 L. Ed. 
 422; Twigg v. Hopkins, 85 Md. 301, 
 37 Atl. 24. This is the doctrine re- 
 cognized and applied by the Supreme 
 Court of Errors of Connecticut in the 
 
 case of Pearce v. Olney, 20 Conn. 544. 
 That was a bill in equity to restrain 
 the collection of a judgment recov- 
 ered in New York upon the ground 
 that the complainant had a good de- 
 fense at law to the action which he 
 was prevented from making by the 
 fraud of the defendant. It was there 
 said by the court: "It is well set- 
 tled that this jurisdiction will be 
 exercised whenever a party, having a 
 good defense to an action at law, has 
 had no opportunity to make it, or has 
 been prevented by the fraud or im- 
 proper management of the other party 
 from making it, and by reason thereof 
 a judgment has been obtained which 
 it is against conscience to enforce." 
 Such is the general current of au- 
 thority touching the power of a court 
 of equity to enjoin judgments at law, 
 being in full harmony with the prin- 
 ciples announced in Walker v. Hel- 
 ler, 90 Ind. 198. 
 
 2. Hogg v. Link, 90 Tnd. 34G; Wal- 
 ker v. Heller, 90 Tnd. 198; Harnian v. 
 Moore, 112 Ind. 221, 13 N. E. 718. 
 
 3. Youge v. Sheppard, 44 Ala. 315; 
 Russell v. Cleary, 105 Ind. 502, 5 N. 
 
 925
 
 §616 Against Judgments; Geneeal Considebatxohb. 
 
 an execution against a debtor of the estate, on the ground that two 
 of the distributees are debtors of the latter by judgment, without 
 first tendering the administrator what is due on the execution, 
 exclusive of the interest of those two distributees in the fund to 
 be raised by the execution, it appearing that there are several other 
 distributees against whose interests in this fund there is no claim 
 by the petitioner. 4 If complainant is indebted to the full amount 
 of the judgment, he will not be allowed to enjoin it without offer- 
 ing to pay it, 5 or without tendering such balance as he admits to 
 remain unpaid. 6 But an execution of a judgment may be enjoined 
 on the strength of a tender which complainant in good faith re- 
 peatedly attempted to make, but was prevented from making by 
 the evasion of the judgment plaintiff or his agent. 7 In Alabama 
 
 E. 414; Baragree v. Cronkhite, 33 
 Ind. 192; Stroeh v. Doggett Dry 
 Goods Co., 65 Mo. App. 103; Herwick 
 v. Kohen Barber S. Co., 01 Mo. App. 
 454. 
 
 4. Gibson v. Carreker, 92 Ja. 801, 
 19 S. E. 42. 
 
 5. Overton v. Stevens, 8 Mo. 622. 
 Complainant, at a sale of bis father's 
 estate, bought two slaves, giving his 
 bond for $1,200, of which amount de- 
 fendant was immediately entitled to 
 $370. A year later complainant sold 
 defendant some land for $800, one- 
 half cash. Several years later com- 
 plainant filed a bill to enforce a lien 
 for the unpaid balance, which be 
 claimed amounted to $635. Defend- 
 ant answered that be only owed about 
 $78, and filed a statement showing 
 numerous small credits, but contain- 
 ing no mention of the $370, nor did 
 his deposition mention it. After a 
 decree in favor of complainant, de- 
 fendant obtained an injunction en- 
 joining its execution, on the ground 
 that he had since discovered that the 
 $370 was to be credited on the balance 
 of purchase money, which had not 
 
 been done. There was strong evi- 
 dence that he had been paid this $.370 
 before the land contract was made. 
 Held, that the injunction should be 
 dissolved. Akers v. Akers, 83 Va. 
 633, 8 S. E. 260. 
 
 6. Flickinger v. Hull, 5 Gill (Md.), 
 60. The judgment should not be en- 
 joined to a greater extent than it is 
 shown to be inequitable. Duncan v. 
 Morrison, Breese, 113. For the in- 
 junction may be dissolved as to a 
 part and continued as to the re- 
 mainder of the judgment. Lyles v. 
 Hatton, 6 Gill & J. (Md.) 122. If 
 a part only is enjoined the remain- 
 der is not affected by the injunction, 
 and draws interest from the date of 
 the judgment. Copeland v. Reese, 
 Wright (Ohio), 728. Where, in a 
 suit to restrain the collection of a 
 judgment, it appears that complain- 
 ant is indebted to defendant on the 
 judgment, but not to the full 
 amount of the judgment, he will be 
 decreed to pay what is due, and an 
 injunction granted as to the residue. 
 Small v. Collins, 5 Del. Ch. 234. 
 7. There was no error in holding 
 
 926
 
 Against Judgments; General Considerations. §617 
 
 it has been decided that where a bill to restrain the enforcement 
 of a judgment admits that a certain amount of it is due, such 
 amount should be paid into court. A simple offer to pay is insuf- 
 ficient. 8 
 
 § 617. No injunction where remedy at law; appeal; certiorari. 
 
 The general rule that an injunction will not be granted where 
 
 there is an adequate remedy at law applies in the case of judg- 
 ments, 9 as does also the limitation on this rule that the remedy at 
 
 that a petition praying an injunction 
 against the further proceeding of an 
 execution was not demurrable for 
 want of equity, or in granting a tem- 
 porary injunction upon the facts al- 
 leged in such petition, which were as 
 follows: That petitioner had been 
 the claimant in a claim case in which 
 a consent judgment had been ren- 
 dered, finding the property subject, 
 but providing that, upon the pay- 
 ment of a specified sum, less than 
 the amount of the execution, by a 
 day named, the judgment should be 
 satisfied in full, otherwise to remain 
 of full force, and the execution to 
 proceed; that time was not of the 
 essence of the agreement; that peti- 
 tioner, by her husband as her agent, 
 tendered to the attorney of record 
 for plaintiffs in execution, they being 
 non-residents, a portion of the money, 
 and offered to pay the balance the 
 next day, all of which was before the 
 day fixed for the payment by the 
 judgment, but said attorney refused 
 to receive the money tendered, and 
 stated he would not then or the next 
 day receive the whole or any part 
 of said sum, and referred petitioner's 
 agent to McK., a nonresident of the 
 county, who in some way controlled 
 and directed the execution, but 
 whether as owner of the execution or 
 as agent of plaintiffs was unknown 
 
 to petitioner; that said attorney 
 gave no intimation that the time of 
 making payment would be regarded 
 as important, and had not previously 
 informed petitioner or her agent that 
 McK. was authorized to receive the 
 money; that, as soon as so informed, 
 said agent made repeated efforts to 
 find and pay him; that he did not 
 attend the court where it was under- 
 stood the money was to be paid, and, 
 finally, that the money was tendered 
 him, but this was shortly after the 
 day for payment fixed in the judg- 
 ment, and petitioner now tenders and 
 is ready to pay the same. Cooper v. 
 Whaley, 90 Ga. 285, 15 S. E. 824. 
 
 8. Roebling Sons Co. v. Stevens 
 Electric Light Co., 03 Ala. 39, 9 So. 
 369. 
 
 9. Hughes v. Melville, CO 111. App. 
 419; Missouri, K. & E. K. Co. v. 
 Hoereth, 144 Mo. 136, 45 S. VV. 1085; 
 Mayer v. Nelson, 54 Neb. 434, 74 N. 
 W. 841; Wright v. Smith, 13 App. 
 Div. (N. Y.) 53C, 43 N. Y. Supp. 
 728. 
 
 Enjoining nse of final order as 
 evidence.— A suit in equity to have 
 a final order in supplementary pro- 
 ceedings declared void and to enjoin 
 its use as evidence to establish the 
 relation of landlord and tenant in 
 another action will not lie when said 
 order is void for jurisdictional de- 
 
 927
 
 §617 Against Judgments; General Considerations. 
 
 law must be as complete as the remedy in equity. 10 So in a recent 
 case in New York it is decided that equity has jurisdiction to 
 enjoin the enforcement in whole or in part of judgments, orders 
 or decrees, but that this jurisdiction will be exercised only in 
 cases of necessity and where there is no adequate remedy at law. 11 
 And it is a rule that a court of equity will not restrain the enforce- 
 ment of a judgment where the party has a complete remedy by 
 appeal, 12 or by certiorari, 12a or by a motion to set the judgment 
 aside. 13 And an injunction against a judgment will not be granted 
 in favor of a party who through his want of diligence has lost his 
 right of appeal. 14 But it has been held that one who has lost his 
 right of appeal through no fault of his, as where the trial judge 
 died before the bill of exceptions had been signed, may be entitled 
 to an injunction. 15 
 
 fects as advantage may be taken of 
 such defects when the order is offered 
 in evidence. Matthews v. Carman, 
 122 App. Div. (N. Y.) 582, 107 N. 
 Y. Supp. G94. 
 
 10. Bankers' L. I. Co. v. Rob- 
 bins, 53 Neb. 44, 73 N. VV. 269. 
 
 11. Matthews v. Carman, 122 App. 
 Div. (N. Y.) 582, 107 N. Y. Supp. 
 694. 
 
 12. Florida. — Kahn v. Kahn, 15 
 Fla. 400. 
 
 Illinois. — Lasher v. Annunziata, 
 119 111. 653; Garden City, W. & S. 
 Co. v. Kause, 67 111. App. 108. 
 
 Iowa. — Strieker v. Field, 9 Iowa, 
 366. 
 
 Kansas.— Edwards v. Cary, 20 
 Kan. 414. 
 
 Louisiana. — Dupre v. Anderson, 45 
 La. Ann. 1134, 13 So. 743. 
 
 Maryland. — Chappell Chemical & 
 F. Co., 85 Md. 681, 36 Atl. 260. 
 
 Mississippi. — Wyman v. Hardwick, 
 52 Mo. App. 621. 
 
 Pennsyhmnia. — Rockwell v. Tup- 
 per, 7 Pa. Super. Ct. 174. 
 
 Texas.— Bills v. Scott. 49 Tex. 430; 
 McHugh v. Sparks, 15 Tex. Civ. A. 
 57, 38 S. W. 537. 
 
 Washington. — Bowman v. Mc- 
 Gregor, 6 Wash. 118, 32 Pac. 1059. 
 
 12a. Lasher v. Annunziata, 119 111. 
 App. 653; Rockwell v. Tupper. 7 Pa. 
 Super. Ct. 174; Scales v. Gulf, C. & 
 S. F. R. Co. (Tex. Civ. A.), 35 S. W. 
 205. 
 
 13. Smith v. Hall, 71 Conn. 427, 
 42 Atl. 80. 
 
 14. In a suit to enjoin a judg- 
 ment the bill alleged that, by reason 
 of the resignation of the justice by 
 whom it was rendered, plaintiff was 
 prevented from perfecting his appeal; 
 but it appeared that, of the thirty 
 days allowed within which to per- 
 form the appeal, eighteen were al- 
 lowed to elapse before any steps were 
 taken to do so. Held, that this alone 
 was not sufficient to confer jurisdic- 
 tion on a court of equity to interfere 
 with the judgment. Galbraith v. Bar- 
 nard, 21 Or. 67, 26 Pac. 1110. A 
 judgment will not be enjoined where 
 a direct proceeding to reverse it 
 should have been instituted. Gould ▼. 
 Loughran, 19 Neb. 392. 
 
 15. Little Rock & S. F. R. Co. v. 
 Wells, 61 Ark. 354, 33 S. W. 208, 30 
 L. R. A. 560. But compare Church 
 
 928
 
 Against Judgments; General Considerations. §§ 617a, 618 
 
 § 617a. Same subject continued. — Where judgment is rendered 
 for defendant in replevin for a return of the property or the value 
 thereof, the facts that the property belonged to a firm of which 
 plaintiff was a partner, and that plaintiff cannot return the prop- 
 erty because he has appropriated it to the use of the firm, furnish 
 no ground for enjoining the enforcement of the judgment; and 
 the facts that defendant had only a special property in the goods 
 taken from him, and that the amount thereof was not shown in the 
 replevin suit, do not justify granting the injunction, since plain- 
 tiff's remedy was by appeal. 16 Also, it would be no ground for 
 enjoining collection of a judgment that the court refused to allow 
 the defendant to show that the instrument sued on was obtained 
 by fraud, since such ruling would be mere error, to be remedied by 
 application for new trial or by appeal. 17 Nor is it any ground for 
 -an injunction that the evidence was not sufficient to support the 
 judgment. 18 And in an action to restrain the levy of an execution 
 upon a justice's judgment, a complaint which alleges that an 
 appeal bond was tendered to the justice, which he refused to ap- 
 prove, and which does not allege that there is any valid defense 
 to the cause of action sued on, is insufficient, since the justice's 
 failure to approve the bond did not prevent the appellant from per- 
 fecting his appeal, either by having the justice compelled by man- 
 date to approve the bond, or by obtaining an appeal on application 
 to the Circuit Court, as allowed by statute. 19 Where the proper 
 remedy for a debtor against a judgment is by appeal, the inability 
 to furnish the required appeal bond is not a sufficient ground for 
 relief by injunction. 20 
 
 § 618. Judgment not enjoined if reviewable. — A statutory pro- 
 vision which authorizes the review of a judgment for error of law 
 
 v. Gallic (Ark. 1905), 88 S. W. 307. v. Dinkgrave, 25 La. Ann. 538; 
 
 16. Bowman v. McGregor, 6 Wash. Smith Co. v. Holmes County Bank 
 118, 32 Pac. 1059. (Miss.), 18 So. 847; Robinson v. 
 
 17. Edmanson v. Best, 6 C. C. A. Sanders, 33 Tex. 774. 
 
 471, 57 Fed. 531. 19. Boyd v. Weaver, 134 Ind. 266, 
 
 18. Hammer's Adm'r v. Rochester, 33 N. E. 1027. 
 
 2 J. J. Marsh. 144; Howell v. New 20. Dupre v. Anderson, 45 La. 
 
 Orleans, 28 La. Ann. 681; Naughton Ann. 82, 13 So. 743. 
 
 929 
 59
 
 §618 Against Judgments ; General Considerations. 
 
 appearing in the proceedings and judgment, within one year after 
 its rendition, or, within three years, for material new matter dis- 
 covered since the rendition thereof, extends the right to review to 
 judgments at law as well as to decrees in equity; and hence, after 
 the adoption of such a statute, a court of equity cannot enjoin the 
 enforcement of a judgment at law where such right of review 
 exists. Thus where, pending an appeal from a judgment estab- 
 lishing his title to land, plaintiff recovered another judgment for 
 the possession of the land, based solely on the title established by 
 the appealed judgment, it was held, that the reversal of the 
 appealed judgment within one year from the rendition of the 
 judgment for the possession was no ground for enjoining the 
 enforcement of the latter judgment, since defendant had an ade- 
 quate remedy by a review of that judgment, under the statutory 
 provision above cited, though prior to the enactment of such statute 
 an injunction would have been the proper remedy. And a pur- 
 chaser of the land from the heirs of defendant after such reversal 
 was held to have the same right to a review of the judgment for pos- 
 session as have the heirs, under the express provision of the 
 same statute; and, having such right, the purchaser cannot resort 
 to equity for an injunction against the judgment. 21 Under a Code 
 
 21. Ross v. Banta (Ind.), 34 N. E. Ream, her husband, as her sole heir 
 865, per McCabe, C. J.: "Another at law, who conveyed to appellant 
 well-established principle of equity Ross. February 27, 1890, and tli.it the 
 is that courts of equity will not lend judgment for a resale of the lota, 
 their aid by injunction against judg- which was the sole producing cause 
 ments. or for any injunctive relief, and foundation of the Pulaski Circuit 
 where the party invoking such aid Court judgment, was reversed by this 
 has a plain and adequate remedy at court on March 14, 1889. When Mar- 
 law. Thatcher v. Humble, 67 Ind. garet Beam died, she had a right to 
 444; Bishop v. Moorman, 98 Ind. 1; maintain a complaint to review the 
 Baragree v. Cronkhite, 33 Ind. 192; Pulaski Circuit Court judgment on 
 Schwab v. City of Madison, 49 Ind. account of the reversal of the judg- 
 329; Sims v. City of Frankfort, 79 ment for a resale if that reversal 
 Ind. 446; Allen v. Winstandly, 135 had taken place before her death; 
 Ind. 105, 34 N. E. 699 (at this term). and that right would have descended 
 Did the appellant Ross have an ade- to her heir, Andrew J. Ream, cross 
 quate remedy at law? Margaret complainant's grantor, under the 
 Ream died, as cross complainant statute, as we shall hereinafter see. 
 avers, in 1889, leaving Andrew J. Whether she died before or after the 
 
 930
 
 Against Judgments; General Considerations. §619 
 
 provision that judgments in ordinary proceedings shall not be 
 annulled or modified by equitable proceedings except for a defense 
 arising or discovered since the judgment was rendered, equity can- 
 not relieve against a final judgment which the clerk has improperly 
 entered against plaintiff, instead of a dismissal without prejudice, 
 where the judgment has been successfully pleaded in bar to a second 
 action for the same matter, though complainant was ignorant of 
 the error until the trial of the second action. 22 In Louisiana it is 
 decided, that an injunction in favor of the debtor to restrain the 
 execution of an order of seizure and sale, lies only in cases pre- 
 scribed by the Code of Practice, and the legal representative of the 
 deceased debtor has no greater rights than his. Insufficiency of 
 the authentic evidence on which the order issued, is no ground 
 for such an injunction, the remedy being by appeal. 23 
 
 § 619. Set-offs. — A court of equity may in some cases enjoin 
 the collection of a judgment at law where it appears that the party 
 
 14th of March, 1889, the date of re- 
 versal, is not stated, though it is 
 stated she died in that year. The 
 reversal of that judgment constituted 
 material new matter for which the 
 statute authorizes a judgment to he 
 reviewed and reversed. The statute 
 authorizes the review of a judgment 
 for error of law appearing in the 
 proceedings and judgment within one 
 year ? or for material new matter dis- 
 covered since the rendition thereof 
 within three years. Rev. Stat., 1881, 
 § 616. When the jurisdictions of law 
 and equity were separate, and hefore 
 the adoption of our reformed proced- 
 ure, bills of review were maintain- 
 able only for relief against decrees in 
 equity, and they could not be main- 
 tained to secure relief from judg- 
 ments at law, such as the Pulaski 
 Circuit Court judgment was. Story, 
 Eq. PI., 404-406. Prior to the adop- 
 tion of the new system, a bill to en- 
 join that judgment would have been 
 
 maintainable because that would hav« 
 been the only remedy. The ordi- 
 nances in chancery of Lord Chan- 
 cellor Bacon, which have never been 
 departed from, authorized a bill to 
 review only decrees in chancery for 
 error appearing on the face of the 
 record, and for new matter discovered 
 since the rendition of the decree. The 
 section of the Civil Code last above 
 cited extends that same right to all 
 judgments, whether in the nature of 
 a judgment at law or a decree in 
 equity. It embodies substantially 
 the ordinances in chancery above 
 mentioned, and extends them to all 
 judgments." 
 
 22. Lowery v. Greene County, 75 
 Iowa, 338, 39 N. W. 523. The rem- 
 edy in this case, if any, was held to 
 be by appeal. 
 
 23. Dupre v. Anderson, 45 La. 
 Ann. 1134, 13 So. 743; Durac v. Fer- 
 rari, 25 La. Ann. 80; Shreveport City 
 v. Flournoy, 26 La. Ann. 709. 
 
 931
 
 §619 Against Judgments; General Considerations. 
 
 against whom it was rendered has a claim against the judgment 
 plaintiff and which it appears that the defendant will he unable to 
 recover except in such a proceeding by way of set-off. 24 But it 
 is decided that claims cannot be set-off by way of proceedings for 
 an injunction where such matter were properly a subject of, and 
 should have been set-off in the original action. 25 And ordinarily 
 a judgment cannot be offset by a claim not reduced to judgment. 
 But the insolvency of the party against whom the set-off is claimed, 
 is sufficient ground for the exercise of the jurisdiction of equity in 
 allowing a set-off in cases not provided for by statute, though the 
 demands on both sides arc not liquidated by judgments or decrees. 26 
 So a judgment debtor is entitled to enjoin the collection of a 
 judgment, and to offset against it a debt owing to him by the 
 judgment creditors, both of whom are insolvent, without present- 
 
 24. United States. — Schwarz & 
 
 Sons v. Kennedy, 156 Fed. 316; 
 
 Boone v. Small, Fed. Cas. No. 1644. 
 
 Alabama.— O'Neill v. Perryman, 
 
 102 Ala. 522, 14 So. 898. 
 
 Arkansas. — Bettison v. Jennings, 8 
 Ark. 287. 
 
 Connecticut. — Kelly v. Wizard, 49 
 Conn. 443. 
 
 Georgia. — Tommy v. Ellis, 41 Ga. 
 260. 
 
 Illinois. — Watson v. Oberne, 25 111. 
 App. 214. 
 
 Kentucky.— Mitchell v. Stewart, 4 
 J. J. Marsh, 551. 
 
 Louisiana. — Muse v. Roger's Heirs, 
 12 Mart. (O. S.) 370. 
 
 New York. — Ladew v. Hart, 8 
 App. Div. 150, 40 N. Y. Supp. 509. 
 
 Oregon.— McDonald v. McKenzie, 
 24 Oreg. 573, 14 Pac. 866. 
 
 West Virginia. — Jarrett v. Good- 
 now, 39 W. Va. 602, 20 S. E. 575, 32 
 L. R. A. 321. 
 
 25. United States.— Hendrickson 
 v. Hinckley, 17 How. 443, 15 L. Ed. 
 123. 
 
 Louisiana. — Crow v. Watkins, 12 
 La. Ann. 845. 
 
 Massachusetts. — Wolcott v. Jones, 
 4 Allen, 367. 
 
 Michigan. — McGraw v. Pettibone, 
 10 Mich. 530. 
 
 Missouri.— Hall v. Clark, 21 Mo. 
 415. 
 
 South Carolina. — Tollison v. West, 
 1 Harp. Eq. 93. 
 
 Virginia. — George v. Strange's 
 Ex'r, 10 Gratt. 499. 
 
 26. Gay v. Gay, 10 Paige (N. Y.), 
 376. Where a defendant has ob- 
 tained a decree upon a note and 
 mortgage, which note was subject in 
 his hands to a counter-claim against 
 his assignor, who is insolvent, the 
 court in which the decree was ren- 
 dered may entertain an original bill 
 to restrain its enforcement. McDon- 
 ald v. Mackenzie, 24 Oreg. 573, 14 
 Pac. 866. One having an unsatisfied 
 judgment against his insolvent judg- 
 ment creditor, who has left the State 
 may enjoin the sheriff from enforcing 
 the latter judgment against him, and 
 
 932
 
 Against Judgments; General Considerations. § 619 
 
 ing it to the administrator of one who has died, or reducing it 
 to judgment, as against the other. And a judgment debtor is 
 entitled to offset against the judgment a claim against the judg- 
 ment creditors which was not due when the action was brought, 
 but which matured after the judgment creditors had become in- 
 solvent, and before judgment was finally rendered against the 
 debtor on appeal in the Supreme Court, where he was unable to 
 plead the offset, owing to its lack of original jurisdiction. An 
 assignee of a judgment takes it subject to all equities that then 
 exist between the parties, including the right of the debtor to off- 
 set against the judgment a claim arising out of the same transac- 
 tion as the one in which the judgment was rendered, but which 
 the debtor was unable to plead at the beginning of the action 
 because it was not then due, and which he could not plead when 
 it matured, owing to the pendency of an appeal in the action to 
 the Supreme Court. 27 In Alabama it is decided that cross judg- 
 
 maintain a bill to require a set-off. 
 Matson v. Oberne, 25 111. App. 213. 
 
 27. Ellis v. Kerr (Tex.), 23 S. 
 W. 1050, per Weill, J.: "Kerr and 
 Dargan's estates were insolvent, and 
 the only remedy appellant had was 
 the equitable one of offsetting the 
 judgment by their debt, which he had 
 been compelled to pay; and it would 
 have been futile for him to have pre- 
 sented his claim to the administrator 
 of an insolvent estate, and await his 
 action upon it (Smalley v. Tramel, 
 11 Tex. 10; Bank v. Cresson, 75 Tex. 
 Sup. 298, 12 S. W. 819), or to have 
 proceeded to judgment against his 
 other insolvent debtor, before resort- 
 ing to his equitable remedy for pro- 
 tection against the judgment. We 
 think that the dismissal of the suit 
 by appellant, as to Kerr, was no 
 ground for the dissolution of the in- 
 junction and dismissal of the case. If 
 the owner of the judgment wished 
 to adjust any equities between him- 
 
 self and Kerr, growing out of the 
 transaction in relation to the judg- 
 ment, he should have pleaded them, 
 and retained him in the case for the 
 purpose of having them adjudicated. 
 Dargan & Co. being insolvent, and ap- 
 pellant's debt not being due from 
 them at the time the suit upon which 
 the judgment was finally rendered in 
 the Supreme Court was tried in the 
 District Court, such debt could not 
 then have been pleaded in the case 
 in offset to the claim of Dargan & Co. 
 against appellant; and Dargan & Co. 
 having become insolvent before the 
 debt matured which they had as- 
 sumed to pay for appellant to Ebel- 
 ing, and he being compelled to pay 
 it, it would be inequitable to com- 
 pel him to pay the judgment of Dar- 
 gan & Co. against him, if they owned 
 it, while they owed him a much 
 greater amount, which appellant 
 could not collect, on account of their 
 insolvency. Nor do we think that 
 
 933
 
 §020 Against Judgments; Genebal Co.nsidkuations. 
 
 ments at law may be set-off against each other in equity by either 
 party, on proof of the insolvency of the other. 28 
 
 § (>20. Cases of set-off continued. — Where, in an action by 
 a judgment debtor against his creditor and the officers of the 
 County Court to restrain the collection of the judgment, plaintiff's 
 ground for injunction rests primarily on an indebtedness exceed- 
 ing the judgment, alleged to be due him from the judgment cred- 
 itor, and the answer specifically denies the existence of such 
 indebtedness, and intelligently avers facts excluding the possibility 
 thereof, it is not error to dissolve the injunction and dismiss the 
 action. 29 In the absence of an allegation of insolvency the col- 
 had no remedy, except the one pur- 
 sued hy him; and we think, if the 
 matters pleaded are true, it is a just 
 and equitable one." 
 
 28. Goldsmith v. Stetson, 39 Ala. 
 183; Henderson v. MeVay, 32 Ala. 
 471; Carroll v. Malone. 28 Ala. 521; 
 Wray v. Furniss, 27 Ala. 471; Rail- 
 road Company v. Rhodes, 8 Ala. 200. 
 The mere insolvency of a judgment 
 creditor will not, of itself, justify an 
 injunction against the enforcement of 
 a judgment at law upon the ground 
 of a set-off, which might have been 
 pleaded at law at the time such judg- 
 ment was recovered. Sayre's Admr. 
 v. Harpold. 33 W. Va. 553, 11 S. E. 
 10. 
 
 29. Wheeler v. Gray, 5 Tex. Civ. 
 App. 12. 23 S. W. 821, per Tarlton, 
 C. J.: "This is a proceeding in in- 
 junction, in which VV. A. Wheeler, 
 appellant, sought to restrain T. R. 
 Gray and the officers of the County 
 Court of Wilbarger county from the 
 collection of a judgment for $38.00. 
 This judgment Gray had recovered 
 from Wheeler in a justice's court, 
 and again, on appeal, in the County 
 Court. This appeal is from the judg- 
 ment of the District Court dissolving 
 the injunction and dismissing the 
 
 Lane is in any better attitude in re- 
 lation to the judgment by reason 
 of its transfer to him, than Dargan &. 
 Co. would be, if they owned it. When 
 the judgment was recovered. Dargan 
 & Co. were insolvent, the debt to 
 Ebeling had matured, and, on account 
 of such insolvency, appellant had 
 been compelled to pay it; and when 
 it was assigned to appellee, he took 
 it subject to all the equities that 
 then existed between the parties to 
 the judgment. Fieem. Judgm., § 427; 
 Wright v, Treadwell, 14 Tex. 250. In 
 this case, according to the allegations 
 in plaintiff's bill, the appellant's 
 claim is of the same nature, it aris- 
 ing from the same transactions as 
 the one upon which the judgment was 
 rendered. It could not be pleaded in 
 the suit in which the judgment was 
 obtained, because it was not due, and 
 Dargan & Co. were solvent. The claim 
 of offset did not then exist in ap- 
 pellant's favor. After the case was 
 appealed to the Supreme Court, and 
 Dargan & Co. had Income insolvent, 
 and their debt paid by appellant, he 
 could not, on account of its jurisdic- 
 tion, set it up in that court as an 
 offset to the demand against him. 
 When the judgment was rendered, he 
 
 934
 
 Against Judgments; General Considerations. §621 
 
 lection of a judgment will not be enjoined pending an action by 
 defendant against plaintiff, defendant desiring to set off the judg- 
 ment which he may obtain against that rendered against him. 30 
 
 § 621. Enjoining judgment founded on perjury A judg- 
 ment at law in favor of either party cannot be annulled in equity 
 at the suit of either party, on the ground that it was founded 
 on the perjury of the party in whose favor it was rendered. 31 In 
 1814 Chancellor Kent expressed the opinion that it would be 
 setting a precedent most inconvenient to the public to interfere 
 in a case like this, of the alleged perjury of a witness, and to pro- 
 vide for a new trial when an application for a new trial has 
 already been denied at law, and when courts of law exercise a 
 
 suit. Appellant in his brief refers to 
 three assignments of error. As he 
 sets out, however, but one of these 
 (the first), we ignore the remaining 
 two. Chappell v. Railway Co., 75 
 Tex. 82. 12 S. W. 977. The assign- 
 ment set out is to the effect that ' the 
 court erred in dissolving the injunc- 
 tion on the motion of the defendant, 
 because the answer of defendant was 
 insufficient to repel and overcome the 
 allegations in the petition.' We over- 
 rule this assignment. The plaintiff's 
 ground for injunction rests primarily 
 upon an indebtedness of $904, alleged 
 to be due him by the defendant. The 
 answer specifically denied the exist- 
 ence of such an indebtedness, and in- 
 telligently averred facts excluding 
 the possibility thereof. Indeed, the 
 petition of plaintiff was, we think, 
 subject to the general demurrer with 
 which the defendant assailed it. The 
 alleged indebtedness grew out of a 
 partnership for the buying and sell- 
 ing of meat, existing from December, 
 1890, to February 17, 1891, between 
 the plaintiff and defendant. The in- 
 ference from the averments of the pe- 
 tition is quite strong that all the 
 
 partnership transactions, including 
 those giving rise to the indebtedness 
 claimed, were fully settled between 
 the parties about February 17, 1891; 
 that Gray, in settlement of these 
 transactions, executed his note to 
 Wheeler for $51.15; and that this 
 note was itself litigated as an offset 
 by Wheeler in the suit which resulted 
 in the judgment sought to be en- 
 joined. The petition for injunction 
 does not seem to meet the require- 
 ments of article 2876, Rev. Stat., that 
 it shall contain ' a plain and intel- 
 ligible statement of the grounds for 
 such relief.' The judgment is af- 
 firmed." 
 
 30. Baker v. Ryan, 67 Iowa, 708, 
 25 N. W. 890. 
 
 31. Nelson v. First Nat. Bank, 70 
 Fed. 526; Woodruff v. Johnson (Su- 
 per. N. Y.), 19 N. Y. Supp. 861, per 
 McAdam, J.: "It would impair the 
 sanctity of judgments and the faith 
 we repose in them if they could be 
 set aside in equity upon grounds 
 available on mere motion addressed 
 to the courts which rendered them. 
 Those courts should have the oppor- 
 tunity of vindicating their own honor 
 
 935
 
 §022 Against Judgments; General Considerations. 
 
 most liberal discretion on the subject of new trials, and when the 
 injury complained of is in a great degree to be imputed to the 
 party's own want of preparation. 32 
 
 § C22. Enjoining judgment on bond given to suppress forgery. 
 — When a judgment has been entered upon a bond given to obtain 
 the discontinuance of a prosecution for forgery, if the defendant 
 has had no day in court, by proceedings upon rule or otherwise, 
 and is not chargeable with laches in setting up his defense when 
 he had opportunity, the enforcement of tho judgment may be re- 
 strained by bill in equity, though five years have elapsed sinco 
 the bond was given. But where pending an appeal from a decree 
 erroneously dismissing such a bill, the complainant therein pro- 
 ceeded by rule and obtained an order opening the judgment to 
 allow his defense thereto, if the latter proceedings appear of record 
 the dismissal of the bill will be affirmed. 33 
 
 and the integrity of tlieir proceed- 
 ings. Where they are powerless to 
 do it, it is time enough for equity to 
 tender its aid. It is settled law, with 
 few exceptions (which do not apply 
 here) t that false testimony given by 
 a party in an action at law is not 
 ground for relief in chancery. United 
 States v. Throckmorton. 98 U. S. 01; 
 Mayor, etc., of the City of New York 
 v. Brady, 115 N. Y. 51)9, 22 N. E. 
 237 ; Smith" v. Nelson. 62 N. Y. 280." 
 
 32. Smith v. Howry, 1 Johns. Ch. 
 (N. Y.) 320, 323. And see Cotzhau- 
 sen v. Kerting, 29 Fed. 821. 
 
 33. Given's Appeal, 121 Pa. St. 
 260, 15 Atl. 468, per Clark, 
 J. : " The real question for con- 
 sideration, therefore, is, whether 
 or not, as a court of equity, 
 we ought to enjoin Howard R. Kern 
 from further proceedings on his judg- 
 ment, by execution or otherwise. It 
 would seem to be settled in Pennsyl- 
 vania that chancery will grant relief 
 by injunction to stay proceedings 
 
 where a judgment is procured by 
 fraud or given upon a consideration 
 which is illegal, or upon a transac- 
 tion contrary to public policy or in 
 violation of the law, provided the de- 
 fendant has had no day in court, and 
 has been guilty of no laches in fail- 
 ing to set up the defense when he had 
 an opportunity to do so. This is 
 the doctrine of Wistar v. McManes, 
 54 Pa. St. 318, and that case has 
 been followed in a number of cases 
 in the common pleas. See Chegney v. 
 Wright, 7 Phila. 431; Hetzell v. 
 Bentz, 8 Phila. 261; Lebanon Mut. 
 Ins. Co. v. Erb, 10 W. N. Cas. 113. 
 To the same effect also is the rea- 
 soning of our late brother Trunkey 
 in Knarr v. Elgren, 19 W. N. Cas. 
 531. See, also. Barker v. Elkins, 1 
 Johns. Ch. 406; Hendrickson v. 
 Hinckley, 17 How. 445; 3 Lead. Cas. 
 in Eq.. 194. The jurisdiction in 
 equity in such cases is also assumed 
 in Gordinier's Appeal, 89 Pa. St. 528, 
 and in Frauenthal's Appeal, 100 Pa. 
 
 936
 
 Against Judgments; Genebal Considerations. § 623 
 
 § 623. Execution for costs and interest thereon.— In accord- 
 ance with the familiar rule that a debtor is not entitled to in- 
 junctive relief unless he affirmatively shows in his complaint that 
 he has offered to pay what he owes, 34 a judgment debtor has no 
 standing in a court of equity to enjoin the collection of a judgment 
 ao-ainst him, unless he offers to pay such costs as the party recover- 
 in- the judgment has paid or is liable to pay. 3 ' And the col- 
 lection of an execution issued on a judgment for costs, will not 
 be enjoined on the ground that the execution is for a larger sum 
 
 St. 290. In these cases, however, it 
 was held, modifying the rule laid 
 down in VVistar v. MeManes, supra, 
 in this respect, that a hill in equity 
 cannot he maintained to restrain exe- 
 cution upon a judgment at law, 
 where a rule to show cause, etc., 
 founded on the same facts, had pre- 
 viously heen discharged hy the court. 
 In the case now under consideration, 
 the effect of the demurrer is to admit 
 that the hond was given in settlement 
 of the criminal charge of forgery, of 
 which the son-in-law of the ohligor 
 was guilty, and that upon giving the 
 hond the* criminal was discharged 
 from arrest and imprisonment. The 
 consideration of the hond was there- 
 fore illegal (Bredin's Appeal, 92 Pa. 
 St. 245), and in equity the obliga- 
 tion was void. Such agreements have 
 a manifest tendency to subvert pub- 
 lic justice, and equity will not per- 
 mit them to be enforced. 1 Story's 
 Eq 294. ... It comes within 
 the rule that where the welfare of 
 society and the vindication of the 
 law are the chief objects the defend- 
 ant may give in evidence the illegal- 
 ity of the contract, as a bar to a suit 
 to enforce it; and this to prevent the 
 evil which would be produced by en- 
 forcing the contract or allowing it 
 to stand. Bredin's Appeal, 92 Pa. St. 
 
 245." On the effect of taking the 
 rule and getting the judgment 
 opened, the court further said: "The 
 judgment having heen opened, the de- 
 fendant therein has opportunity to 
 set up her defense, and after a trial 
 and judgment on the issue thus pre- 
 sented, the matters of defense set 
 forth in the bill will be res adjudi- 
 cate, and equity will not retry the 
 issue. ... If this were not so, 
 the Court of Common Pleas must 
 hear and determine the same matter 
 twice. If, when this record is re- 
 mitted therefrom, it shall be made to 
 appear that the complainant has al- 
 ready obtained relief under proceed- 
 ings at law, the court will doubtless 
 dismiss the bill on that ground, as we 
 would certainly do now if the facts 
 alleged were disclosed by the record." 
 34. McWliinney v. Brinker, G4 
 Ind. 3G0; Lancaster v. DuHadway, 
 97 Ind. 505; Rowe v. Peabody, 102 
 Ind. 198. 1 N. E. 353; Roseberry v. 
 Huff, 27 Ind. 12; South Bend v. 
 Notre Dame University, G9 Ind. 344; 
 Stilz v. Indianapolis, 81 Ind. 5 
 Cauldwell v. Curry, 93 
 Jones v. Ewing, 107 Ind. 
 E. 819. 
 
 See § GIG herein. 
 35. Russell v. Cleary, 
 502, 5 N. E. 414. 
 
 Ind. 3G3; 
 313, G N. 
 
 105 Ind. 
 
 937
 
 § G24 Against Judgments; General Considerations. 
 
 than the costs, as taxed, where it does not appear that the judg- 
 ment debtor has paid, not only the amount of costs as taxed, but 
 also interest on the same, since a judgment for costs bears in- 
 terest. 36 
 
 § 624. Restraining levy to extort costs. — An attempt to levy 
 an execution under a judgment will be enjoined when it is made 
 merely to extort the payment of costs which a party is not liable 
 to pay. 37 Under the Texas revised statutes, providing that no 
 injunction shall be grant -1 to stay a judgment, except as to so 
 much thereof as complainant may equitably show hims.lf entitled 
 to be relieved against, an injunction is the proper remedy to re- 
 strain execution for the county attorney's commissions on a judg- 
 ment for a fine which was, before the issue of the execution, 
 
 36. Eaton v. Markley, 12G Ind. 
 123. 25 N. E. 15. That a judgment 
 for costs draws interest ill Indiana, 
 see Church v. Hay, 03 Ind. 323; 
 Hansford v. VanAuken, 79 Ind. 302; 
 Palmer v. Glover, 73 Ind. 520. 
 
 37. De La Vergne Refrigerating 
 Machine Co. v. Montgomry Brewing 
 Co., 6 C. C. A. 272, 57 Fed. Ill, per 
 Baker, J.: "When the bank took 
 judgment in this court on the col- 
 lateral note, there was included in 
 the judgment the sum of $200 as a 
 reasonable attorneys' fee for the col- 
 lection of the same. The stipulation 
 for attorneys' fees contained in the 
 note was merged in that judgment. 
 The fact that the judgment was ap- 
 pealed from and affirmed gives no 
 right or claim for the recovery of 
 additional attorneys' fees. The 
 amount of attorneys' fees in all such 
 cases is settled by the judgment of 
 the trial court once for all. Holmes 
 v. Hinkle, 63 Ind. 518. If the bank 
 or its assignee has any right to re- 
 cover the attorneys' fees and expenses 
 jn controversy, such right must be 
 
 found dehors the collateral note and 
 contract. The parties presumably 
 put into the note and contract their 
 entire agreement and understanding 
 on the subject of attorneys' fees and 
 expenses. Exprcssio unius est ex- 
 oluaio alterius. Therefore, unless the 
 condition of the complainants is 
 worse by reason of the note being 
 given as a collateral, and not a prin- 
 cipal obligation, no attorneys' fees 
 and expenses can be recovered beyond 
 the amount included in the judgment. 
 The collateral note and contract de- 
 fine and limit the rights and liabil- 
 ities of the parties in reference to at- 
 torneys' fees and expenses. As 
 neither of these impose any liability 
 on the complainants to pay the at- 
 torneys' fees and expenses in con- 
 troversy, they cannot, in my judg- 
 ment be recovered from them. The 
 whole of the principal debt, with in- 
 terest and costs, and all attorneys' 
 fees and expenses except those 
 herein involved, have been paid to the 
 bank or its assignee. Payment in 
 full of the principal debt or obliga- 
 
 938
 
 Against Judgments; Geneeal Considerations. §625 
 
 remitted by the governor. 38 An injunction suit by a defendant, in 
 execution brought against the district clerk and the plaintiff, to 
 restrain the collection of an execution for costs on the ground that 
 some of the items in the bill of costs are illegal, is in effect but a 
 motion to retax the costs, and should be treated as such ; in such a 
 case it is improper to enjoin the collection of items which are not 
 complained of, or to appoint an auditor to tax the costs for the 
 court, and on dissolution of the injunction, to render judgment for 
 damages. 39 
 
 § 625. Enjoining execution where judgment has been paid. — 
 
 An injunction is an appropriate remedy to prevent proceedings on 
 a satisfied judgment, 40 even though the court by which it was ren- 
 dered might have the power to grant the same relief upon motion 
 to stay the execution. 41 An alternative judgment in the form usual 
 
 tion ipso facto satisfies and dis- 
 charges the collateral contract, and 
 the judgment recovered thereon. 
 Colebrooke Collat. Sec, p. 129; Bow- 
 ditch v. Green, 3 Mete. (Mass.) 360. 
 The attempt, after such payment, to 
 use the execution to coerce the pay- 
 ment of the attorneys' fees and ex- 
 penses in controversy, is wrongful 
 and oppressive. It is the plain duty 
 of the court to restrain such an abuse 
 of its process." 
 
 38. Smith v. State, 26 Tex. App. 
 46, 9 S. W. 274. Where the contro- 
 versy is whether the judgment is a 
 lien on homestead premises, which ex- 
 ceed in value $1,000, and an injunc- 
 tion staying execution is issued, con- 
 tingent upon the decision of this 
 question, the judgment creditor is 
 not entitled, upon a final decision sus- 
 taining the lien of his judgment, to 
 attorney fees paid in defending the 
 suit upon its merits, as an element 
 of damage occasioned by the injunc- 
 tion. Moriarity v. Gait, 125 111. 417, 
 17 N. E. 714. 
 
 39. Lockart v. Stuckler, 49 Tex. 
 765. 
 
 40. California. — Thompson v. 
 Laughlin, 91 Cal. 313, 27 Pac. 752. 
 
 Colorado. — Smith v. Morrill, 11 
 Colo. App. 284, 52 Pac. 1110. 
 
 Illinois. — Edwards v. McCurdy, 13 
 111. 496. 
 
 Indiana. — Marsh v. Prosser, 64 Ind. 
 293; Bowen v. Clark, 46 Ind. 405. 
 
 Iowa.— Heath v. Halfhill, 106 
 Iowa, 131, 76 N. W. 522. 
 
 Louisiana. — Woolfolk v. Degeloss, 
 24 La. Ann. 199. 
 
 Michigan. — Kallander v. Neidhold, 
 112 Mich. 329, 70 N. VV. 892. 
 
 Texas. — Heath v. Garrett, 50 Tex. 
 264; Smith v. State, 26 Tex. App. 
 417, 9 S. W. 274. 
 
 Where check given may be en- 
 joined. Kallander v. Neidhold, 112 
 Mich. 329, 70 N. W. 892. 
 
 41. Thompson v. Laughlin, 91 Cal. 
 313, 27 Pac. 752; Crawford v. Thur- 
 mond, 3 Leigh, 85. An injunction 
 will be allowed against an execution 
 issued after the expiration of a year 
 
 939
 
 § C2C Against Judgments; General Considerations. 
 
 in actions of claim and delivery of personal property is satisfied 
 by a voluntary return of the properly prior to the entry of the 
 judgment ; the party obtaining the judgment is not entitled to both 
 property and value, and having received the property, equity 
 treating that as done which ought to b,' done, will consider it as 
 received in satisfaction of the judgmenl and enjoin its further 
 execution. 42 In Illinois it has been decided that if a judgment has 
 been paid the court may, on motion, stay further proceedings in 
 execution and compel the entry of satisfaction of record. 43 But 
 the collection of a judgment will not be enjoined on the ground 
 that it was recovered on .a prior judgment, rendered on a note held 
 as collateral security when the debl was paid, lll'tcen years before 
 the second judgment, and the debtor might have ascertained that 
 fact by inquiry, and on motion, before the judgment sought to be 
 enjoined was rendered, have had entry of satisfaction of record. 44 
 
 § 626. Same subject. — While in some of the States the rule 
 in equity has obtained that judgments which have been satisfied 
 may properly be enjoined, 45 the more gem nil rule is that where 
 the remedy at law is us complete as the remedy in equity, a court 
 of equity will not interfere by injunction. 46 In West Virginia it 
 is decided that in a case where, by virtue of an agreement between 
 
 from rendition of the judgment, be- 1 Scam. 552. And see, also, as to the 
 cause it is presumed from the delay existence of a similar rule, Smock v. 
 in taking out execution that the judg- Dade, 5 Rand. (Va.) 638; Job v. 
 ment has been paid. But, if it ap- Walker, 3 Md. 129; Dunlap v. Clem- 
 pears that the judgment had in fact ents, 18 Ala. 778; Chambers v. Neal, 
 not been paid, the injunction will be 13 B. Mon. 256; Marsh v. Haywood, 
 dissolved, and any money which had 6 Humph. (Tenn.) 210; McMillan v. 
 come into the hands of the sheriff un- Baker, 20 Kan. 50 j Spafford v. Janes- 
 der the execution will be applied to ville, 15 Wis. 475; McDonald v. Fal- 
 the judgment under a proper prayer vey, 18 Wis. 571. 
 
 therefor on the part of the creditor. 44. Harding v. Hawkins, 141 111. 
 
 Seymour v. Hill, 67 Tex. 385, 3 S. W. 572, 31 N. E. 307. 
 
 313. 45. Scogin v. Beall, 50 Ga. 88; 
 
 42. Thompson v. Laughlin, 91 Cal. Craft v. Thompson, 51 N. H. 536; 
 313, 27 Pac. 752. Bowen v. Clark, 46 Ind. 405. 
 
 43. Harding v. Hawkins, 141 111. 46. Black, Judgments, § 390; Mc- 
 572, 584, 31 N. E. 307; Neal v. Hand- Rae v. Davis, 5 Jones Eq. 140; Per- 
 ley, 116 111. 423, 6 N. E. 45; Hoag v. rine v. Carlisle, 19 Ala. 686; Lansing 
 Starr, 69 111. 365; Russell v. Hogan, v. Eddy, 1 Johns. Ch. 49. 
 
 940
 
 Against Judgments ; General Considerations. § 627 
 
 a judgment debtor and a judgment creditor, the judgment ought 
 to be entered as satisfied, but in lieu thereof the creditor has an 
 execution issued and levied upon the goods of the debtor, the latter 
 cannot obtain relief by injunction in a court of equity, for the 
 reason that he has a complete and adequate remedy at law under 
 the provisions of the Code relating to the quashing of execution. 
 Where the collection of a dormant judgment has been enjoined, 
 if it is made to appear that it has not been paid, the injunction 
 must be dissolved; for the only ground for not issuing execution 
 on a dormant judgment being the legal presumption of its pay- 
 ment; when this presumption ceases, to perpetuate the injunction 
 would be in effect to violate a rule which denies an injunction 
 unless irreparable injury would result from its being refused. 
 Where defendant tenders money into court, and the court, after 
 giving judgment for plaintiff for more than was tendered, wrong- 
 fully applies such money in payment of costs and part payment 
 of plaintiff's judgment, and the plaintiff so receives it, defend- 
 ant is not entitled to an injunction against proceedings by the 
 plaintiff to enforce his judgment. 49 
 
 § 627 Same subject; constructive payment.— Where an agent 
 authorized to collect a judgment takes a check in payment know- 
 ing that there is money in the bank to pay it, and notifies his 
 principal, who draws it out on a check previously given for 
 another debt, but which had been dishonored, so that no money 
 remains to meet the second check, given on account of the judg- 
 ment, the judgment will be considered paid, so that it may not 
 be enforced against a surety for the debt for which it was ob- 
 
 47 Howell v Thomason, 34 W. Cockerell v. Nichols, 8 W Va. 159; 
 
 Va 794 12 S. K 1088, per Lucas, J., McCoy v. Aller, 16 W Va. 733; Hall 
 
 referring to the provision of the v. Taylor, 18 W. V* 644 
 Code- «< It will thus be seen that this 48. Seymour v. Hill, 67 Tex 385, 
 
 provision is ample to protect an exe- distinguishing Watson v. Newsham 
 
 cuTion debtor from the levy of an ex- 17 Tex. 437, and North v. Swmg, 24 
 
 ecution upon a satisfied judgment, Tex. 193 
 
 and is fully as complete and far less 49 . Chiejgo £ «. T. 1 R. Soj- Kam 
 
 expensive and cumbersome than the man, 119 111. 362, 10 N. E. 217. 
 resort to a court of chancery. See 
 
 941
 
 § <>27 Against Judgments; General Constdekatiobs. 
 
 tained ; and in such a case the surety may enjoin a transfer or 
 enforcement of the undischarged judgment of record, without 
 waiting for any attempted enforcement, as his inaction, with 
 Knowledge of the facts, might estop him from taking advantage 
 of the judgment creditor's fraud, and be construed as a ratifica- 
 tion of his misappropriation of the money. so And a judgment 
 debtor is entitled to enjoin the enforcement of the judgment 
 where, having delivered to the creditor's agent property of suffi- 
 cient value to more than satisfy the judgment, for the purpose of 
 having it sold and the proceeds applied to the judgment, the 
 creditor converted it to his own use and did not apply the pro- 
 ceeds to the payment of the judgment. 51 The enforcement against 
 land of a judgment which, at the time of the purchase of the 
 land, appeared on the face of the record to have been satisfied by 
 the attorney of record, will be enjoined at the suit of the pur- 
 chaser, though the satisfaction was in fact without authority; for 
 though the attorney had no right as between the parties to enter 
 satisfaction on a judgment without the actual receipt of the money 
 due thereon, yet his statement of full receipt and satisfaction will 
 
 50. Kallander v. Neirhold, 08 Mich. successor tendered the contractor 
 517, 57 N. W. 571. A contractor $25,000, with interest to date, which 
 agreed to build a certain piece of rail- was refused, and thereupon it brought 
 road for $29,000, with the right to re- a bill to enjoin the contractor from 
 tain possession thereof and run it for taking possession under his judgment, 
 his own benefit until that sum was and paid into court the amount ten- 
 paid. After completing the road, and dered. Held, that the agreement was 
 before receiving full payment, he was a settlement of the amount due the 
 forcibly dispossessed by the officers of contractor, and, on payment into 
 the railroad company, and brought an court, complainant was entitled to the 
 action of forcible entry and detainer injunction prayed. Lamar, J., dis- 
 in the District Court. Pending this senting. Johnson v. St. Louis T. M. & 
 action he entered into a written stip- S. Ry. Co., 141 U. S. 002, 12 S. Ct. 
 ulation with the company that the 124. 
 
 sum due under the contract at the Check a payment. — See Kalian- 
 date of the writing was $25,000. der v. Neidhold, 112 Mich. 329, 70 N. 
 Judgment was rendered in his favor, W. 892. 
 
 and affirmed on appeal to the Su- 51. Harrison Mach. Works v. 
 
 preme Court. Seven months later Templeton, 82 Tex. 443, 18 S. W. 
 
 and before judgment was entered 601. 
 below on the mandate, the company's 
 
 942
 
 Against Judgments ; General Considerations. §§ 628, 629 
 
 protect subsequent innocent purchasers of the land affected by the 
 lien of the judgment. 52 
 
 § 628. Enjoining judgment for alimony. — Where a husband 
 brings an action against his wife to enjoin a judgment for alimony 
 rendered in her favor in an action by her for divorce a mensa 
 et thoro, and for an absolute divorce from her, on the ground 
 that at the time of their marriage she had a husband living, 
 and the court properly grants him a divorce on such ground, it 
 is error to refuse to enjoin the judgment for alimony. 53 
 
 S 629. Enjoining judgment for usury. — The rule of the New 
 York court of chancery was that an injunction would not be 
 granted to stay execution of a judgment, on the ground that it 
 was affected with usury, because the usury would have been a 
 good defense at law; and chancery would not relieve against a 
 judgment at law, unless the defendant therein was ignorant of 
 the fact in question pending the action, or it could not be re- 
 ceived as a defense. 54 A party's neglect to put in his plea of 
 usury in the action at law bars him from injunctive relief in an 
 independent action. 55 After the question of usury has been tried 
 at law, equity will not afford injunctive relief except in special 
 casts where the usurious facts were so complicated that the law 
 court was inadequate to afford redress. 56 But a judgment will 
 not be enjoined on the ground that there was an agreement that 
 
 52 Wheeler v. Alderman, 34 S. C. good conscience to allow this judg- 
 533 13 S E G73. And see Charles- ment now to be enforced, and the 
 ton' City Council v. Ryan, 22 S. C. jurisdiction of the chancery court and 
 339 of this court to enjoin its collection 
 
 53 Scurlock v. Scurlock, 92 Tenn. is well sustained by the authorities. 
 629 22 S W 858, per Wilkes, J.: 2 Pom. Eq. Jur., § 1300; Gibs. Suits 
 "Having never sustained the legal Eq., § 790; 1 Story Eq. Jur., § 887." 
 relation of wife, she should not be 54. Lansing v. Eddy, 1 Johns. Oil. 
 entitled to any alimony based upon (N. Y.) 49. And see LeGuen v. Gouv- 
 or growing out of that relation, and erneur, 1 Johns. Cas. (N. Y.) 436; 
 under the facts, as found in the pres- Williams v. Lee, 3 Atk. 223. 
 
 ent proceedings, she would not be en- 55. Walker v. Gurley, 83 N. C. 
 
 titled to any relief as against the 429; Ware v. Harwood, 14 Ves. 223. 
 
 present complainant, Robert. It 56. Lindsley v. James. 3 Cold, 
 
 would be clearly against equity and (Tenn.) 477; McKoin v. Cooley, 3 
 
 943
 
 § G30 Against Judgments; General Considerations. 
 
 the debtor should pay compound interest on default of prompt 
 payment of simple interest ; 57 nor on the ground that the amount 
 of the judgment was made up in part of interest which had by 
 contract of the parties been converted into principal, after the 
 interest so converted had become due and payable. 58 
 
 § 630. Same subject; legal interest to be paid or tendered. — 
 One who seeks an injunction against the foreclosure of a usurious 
 mortgage should tender the amount fairly due. 59 And where after 
 judgment by default on certain notes and part payment, the par- 
 ties agreed to defer the judgment to a subsequent mortgage by 
 the debtor, and that the balance due on the judgment be soon 
 paid; but the payment was not made, and nearly fifteen months 
 after the judgment was rendered the creditor took out execution, 
 which the debtor sought to enjoin on the ground of usury in the 
 notes, not alleging the amount of the usury nor tendering the 
 amount actually due, it was held that there was no ground for 
 an injunction. 60 Under the Delaware statute, which avoids loans 
 for usury, the collection of usurious interest will be enjoined if the 
 borrower pays the debt and lawful interest; but the whole contract 
 will not be declared void at the borrower's suit, though it would be 
 if the lender sought to affirmatively enforce it in equity. 61 The 
 general rule is that the plea of usury is a personal privilege to be 
 taken advantage of only by the debtor; 62 and therefore that a 
 
 Humph. (Tenn.) 559; Frierson v. 57. Hale v. Hale, 1 Cold. (Tenn.) 
 
 Moody 3 Humph. 5G4; Buchanan v. 233. 
 
 Nolin,'3 Humph. 03. And see Thomp- 58. Parham v. Pulliam. 5 Cold, 
 
 son v. Berry, 3 Johns. Ch. 399; Fan- (Tenn.) 497. 
 
 nin<r v. Dunham, 5 Johns. Ch. 121; 59. Norman v. Peper, 24 Fed. 403. 
 
 Pickett v.Pickett, 2 Hill Ch. (S.C.), 60. Neurath v. Hecht, 02 Md. 
 
 470 474. In Chester v. Apperson, 4 221. And see Powell v. Hopkins, 38 
 
 Heisk. (Tenn.) 039, it was held that Md. 1, 13; Walker v. Cockey, 38 Md. 
 
 where the question of usury was com- 75, 78; Hill v. Reifsnider, 39 Md. 
 
 plicated hy reason of repeated re- 429; Trumbo v. Blizzard, Gill & 
 
 newals and double charges for ad- J. (Md.) 18, 24; Rogers v. Rathbun, 
 
 vances, as to which the remedy at 1 Johns. Ch. (N. Y.) 307. 
 
 law was not clear, a court of equity 61. Ennis v. Ginn, 5 Del. Ch. 180; 
 
 would relieve after judgment, with- Jackson v. Henry, 10 Johns. 195. 
 
 out showing any reason for not mak- 62. Post v. Dart, 8 Paige (N. Y.), 
 
 ing the defense at law other than the 639; Campbell v. Johnston, 4 Dana 
 
 complication and difficulty. (Ky.), 177; Fenno v. Sayrc, 3 Ala. 
 
 944
 
 Against Judgments; Geneeal Considerations. § 631 
 
 creditor cannot enjoin the collection of a judgment obtained by 
 another creditor of the same debtor, on the ground that the latter 
 paid him usurious interest. 63 Thus, where a debtor is unable to 
 pay all his debts, a junior judgment creditor cannot enjoin the 
 senior judgment of another creditor, on the ground that the latter 
 has received from the debtor a sufficient amount of usury to dis- 
 charge his judgment. 64 
 
 § 631. Enjoining judgment when summons not served 
 
 Where there is no service of process upon or notice given to a 
 defendant it is a general rule that a judgment rendered in such 
 a case may be enjoined. 65 So where a false return is made and a 
 judgment subsequently rendered the enforcement of such judg- 
 ment may in some cases be enjoined where it appears that the 
 defendant had no notice of the proceedings. 66 But it is decided that 
 a court of equity will not vacate a judgment at law merely on 
 the ground that the officer's return, that he had served the sum- 
 mons on defendant to the judgment by leaving a copy of the 
 process at his usual place of residence, was false ; but it must also 
 be averred and proved that defendant to the judgment has a 
 meritorious defense. 67 In Alabama it has been decided that judg- 
 
 458; DeWolf v. Johnson, 10 Wheat. See § 642 herein. 
 
 (U. S.) 367, 6 L. Ed. 343. 66. Martin v. Parsons, 49 Cal. 94; 
 
 63. Gatewood v. Macon Bank, 49 McNeil v. Edie, 24 Kan. 108; Bram- 
 Ga - 45. lett v. McVey, 91 Ky. 151, 75 S. W. 
 
 64. Phillips v. Walker, 48 Ga. 55. 49. 
 
 65. Alabama.— Robinson v. Reid, 67. Janes v. Howell, 37 Neb. 320, 
 50 Ala. 69. 55 N. W. 965, per Ragan, C.: " While 
 
 Arkansas. — Ryan v. Boyd, 33 Ark. there is some conflict, the weight of 
 
 738. authority undoubtedly is that a court 
 
 Colorado. — Wilson v. Hawthorne, of equity will not enjoin a judgment 
 
 14 Colo. 530, 24 Pac. 548, 20 Am. St. at law merely on the ground that the 
 
 Rep. 290. process in the suit in which the judg- 
 
 Illinois. — Owens v. Raustead, 22 ment was rendered was not served on 
 
 "^ lfi l- the defendant, or, in other words, 
 
 Iowa.— Gerrish v. Hunt, 66 Iowa, that the return of the officer as to 
 
 682. 24 N. W. 274; Givens v. Camp- service is in fact false. To justify 
 
 bell. 20 Iowa, 79. the interposition of a court of equity 
 
 Mississippi.— Southern Exp. Co. v. in such a case, it must be further 
 
 Craft, 43 Miss. 508. shown that if the relief sought be 
 
 945 
 
 CO
 
 §032 Against Judgments; General Considerations. 
 
 merit at law will not be enjoined merely on the ground that process 
 was not served on defendant, but it must also be shown that he has 
 been precluded by the irregularity from urging a valid defense; 68 
 and this rule seems to be sustained by the weight of authority, 6 * 
 and is held to exist in Illinois, where it is provided by statute, that 
 " only so much of any judgment at law shall be enjoined, as the 
 complainant shall show himself equitably not bound to pay, and so 
 much as shall be sufficient to cover costs." 70 In Tennessee and 
 Arkansas, on the contrary, it has been hold that a judgment ren- 
 dered without proper service, should be enjoined without inquiry 
 into the existence of a valid defense; 71 and quite a similar rule 
 prevails in Texas. 72 
 
 § 632. Same subject. — A judgment against a surety on a bond 
 for the appearance of an accused person is void if there was no 
 preliminary service on him, and in such a case, the District Court 
 of the parish of the surety's domicile has jurisdiction to enjoin 
 
 granted a different result will be ob- 
 tained from that already adjudged by 
 the judgment alleged to be void. Col- 
 son v. Leitch, 110 111. 504. It is, 
 however, the settled law of his State, 
 that a court of equity will not set 
 aside a judgment at law which is 
 regular on its face, unless it is shown 
 that the judgment was rendered 
 when no cause of action existed. Os- 
 born v. Gehr, 29 Neb. 661, 46 N. W. 
 84." 
 
 See, also, Lasher v. Annunziata, 
 119 111. App. 653; Meyer v. Wilson 
 (Ind. 1906), 76 N. E. 748. 
 
 Where the sheriff makes a 
 false return of a service on the de- 
 fendant, it would seem to be as 
 equitable to leave him to his rem- 
 edy against the sheriff for the false 
 return, as to relieve him from the 
 judgment and turn the plaintiff for 
 redress to the sheriff. Gregory v. 
 Ford, 14 Cal. 138. See, also, Gard- 
 
 ner v. Jenkins, 14 Md. 58; Harris v. 
 Gwin, 10 Sm. & Mar. 503. 
 
 68. Secor v. Woodward, 8 Ala. 
 500; Crafts v. Dexter, 8 Ala. 767. 
 
 69. Gregory v. Ford, 13 Cal. 138 
 Taggart v. Wood, 20 Iowa, 236 
 Crawford v. White, 17 Iowa, 5G0 
 Fowler v. Lee, 10 Gill & J. (Md.) 
 363; Freeman on Judgments, § 498. 
 
 70. Colson v. Leitch, 110 111. 504. 
 
 71. Bell v. Williams, 1 Head, 229; 
 Ridgeway v. Tennessee Bank, 11 
 Humph. 523; Ryan v. Boyd, 33 Ark. 
 778. And see Kizer Lumber Co. v. 
 Mosely, 56 Ark. 544, 20 S. W. 409. 
 
 72. In Glass v. Smith, 66 Tex. 548, 
 2 S. W. 195, the court said: "Juris- 
 diction over the person of a defend- 
 ant is acquired by his voluntary ap- 
 pearance or by the service upon him 
 of such process as the law provides. 
 In the case before us, Glass had not 
 voluntarily come before the court as 
 a litigant, and thus conferred juris- 
 
 946
 
 Against Judgments; General Considerations. 
 
 633 
 
 a fieri facias issuing from the District Court of another parish 
 where the judgment was rendered, and to hear the cause on the 
 merits; 73 but such a case is not to be understood as creating an 
 exception to the general rule that the execution of a valid judg- 
 ment belongs to the court which rendered it. 74 Where a judgment 
 
 diction upon the court over his per- 
 son; nor had he been brought before 
 the court by any process known to 
 the law. Had he availed himself of 
 the unauthorized proceeding by cer- 
 tiorari, as by asking an adjudication 
 under it, or had he in any way rati- 
 fied the act of the person who caused 
 it to be instituted, it might with pro- 
 priety now be held that he is not en- 
 titled to the relief which he seeks. 
 There is, however, nothing of the 
 kind in this cause and the judgment 
 rendered against him, from which he 
 now seeks relief, was, and is a nul- 
 lity. There has been some conflict in 
 the decisions of different courts as to 
 whether relief can be given against a 
 void judgment by injunction; but in 
 this State this has been deemed the 
 appropriate relief. Smith v. De- 
 weese, 41 Tex. 595; Cooke v. Burn- 
 ham, 32 Tex. 129; Chambers v. 
 Hodges, 23 Tex. 110." 
 
 73. Langridge v. Judge, 46 
 La. Ann. 29, 14 So. 427, per Breaux, 
 J.: "The broad allegation of the 
 petition for the injunction includes 
 nonservice of any notice of judgment 
 of forfeiture. In some respects the 
 grounds of injunction are not clearly 
 defined. Sufficient remains to justify 
 the ruling that the case be heard on 
 the merits. The allegations upon 
 the face of the papers suggest the 
 unavoidable inference that there was 
 not actual process to sustain a fi. fa. 
 In Lawes v. Chinn, 4 Mart. N. S. 388, 
 this court held the injunction was a 
 remedial writ against the sheriff to 
 
 prevent an immediate injury, which 
 could not otherwise be effectually 
 warded off; and the plaintiff was 
 necessarily cited to gainsay the alle- 
 gations of the party and assert his 
 rights. Ex necessitate rei, it must 
 have issued by the judge of the par- 
 ish in which the execution was to be 
 carried into effect. The question re- 
 ceived brief consideration in case of 
 Police Jury v. Michel, 4 La. Ann. 84, 
 and in Hobgood v. Brown, 2 La. Ann. 
 323. The plea is not that the pro- 
 cess is voidable, but that it is void. 
 It would be a hardship to compel a 
 person to repair to a distant parish 
 to plead if a process is absolutely 
 void. The jurisdiction quoad the 
 seizure does not attach unless it is 
 predicated of process sufficient to 
 give the seizure the appearance of 
 legal sanction. If entirely wanting 
 in process, there can be no seizure 
 made that will divest the court of 
 the domicile and of the situs of the 
 property from arresting a void seiz- 
 ure." 
 
 74. State ex rel. v. Judge (La.), 
 14 So. 427, per Breaux, J.: "The 
 rule that the execution of judgment 
 belongs to the court by which the 
 cause has been tried, remains un- 
 changed and is not enlarged by our 
 decision in this case. We adhere to 
 the principles laid down in Arthurs 
 v. Sheriff, 43 La. Ann. 416, 9 So. 126, 
 from which we do not depart by de- 
 ciding that in proceedings entirely 
 void a defendant is not without rem- 
 edy before the court of his domicile." 
 
 947
 
 § 633 Against Judgments; Geniual Considerations. 
 
 is rendered without defendant having been served, and it does not 
 appear that he ownes anything, equity will relieve. 75 
 
 § 633. Same subject continued. — A judgment against a defend- 
 ant who was never served with process, and whose appearance in 
 the action was entered by an attorney without his knowledge or 
 consent, may be enjoined, though such defendant does not show 
 that he has any defense to the claim sued <>n. 76 Proceedings, how- 
 ever, on a judgment against sureties on a bond, should not be 
 restrained for an alleged want of due service, without a meritorious 
 defense having been shown, as equity will relieve from real and 
 not from mere technical wrongs.' 7 And one who is aggrieved 
 by a judgment rendered in his absence, in order to obtain relief 
 in equity, must show not only that he was not summoned, but 
 also that he did not know of the action in time to make his do- 
 
 75. Gerrish v. Hunt, 6G Iowa, 682, 
 24 N. W. 274. 
 
 76. Mills v. Scott 43 Fed. 452. 
 
 77. State v. Hill, 50 Ark. 458, 8 
 S. W. 401, per Cockrill, C. J.: " Re- 
 lief is not granted merely because 
 the court assumed jurisdiction of 
 the defendant's person upon a false 
 return of service of process. To war- 
 rant interference, the false return 
 must have resulted in an injury to 
 the defendant under such circum- 
 stances as would render it uncon- 
 scionable to permit the judgment to 
 be executed. Gibson v. Armstrong, 
 32 Ark. 438; Johnson v. Branch, 48 
 Ark. 535. . . . The rule requir- 
 ing a showing of merits before reliev- 
 ing against a judgment obtained 
 through unavoidable casualty or mis- 
 fortune, has always been enforced by 
 this court, both before and since the 
 decision in Ryan v. Boyd, 33 Ark. 
 778. It holds good, it seems, even in 
 cases where the judgment is obtained 
 
 through fraud. White v. Crow, 110 
 U. S. 183, 4 S. Ct. 71; Lawson v. 
 Bettison. 12 Ark. 401. . . . The 
 better established rule unquestion- 
 ably is that before a court of equity 
 will relieve against a judgment for 
 want of service on defendant, the 
 latter must aver and prove that if 
 the relief is granted a result will be 
 attained different from that reached 
 by the judgment complained of. Col- 
 son v. Loiteh, 110 111. 504; Gregory v. 
 Ford, 14 Cal. 138; Taggart v. Wood, 
 20 Iowa, 236; Saunders v. Albritton, 
 37 Ala. 716; Fowler v. Lee, 10 Gill & 
 J. 358. The statute expressly re- 
 quires a defense to be shown in all 
 cases in which the proceeding to va- 
 cate may be had in the court which 
 rendered the judgment. Mansf. Dig. 
 3912; Boyd v. Roane, 49 Ark. 397. 
 And whether this case is within the 
 statute or not, the rule is applicable. 
 Ryan v. Boyd, 33 Ark. 778, is over- 
 ruled on that point." 
 
 948
 
 Against Judgments ; General Consideeations. § 634 
 
 fense. 78 And where in an action to enjoin the collection of a judg- 
 ment, rendered without service of process, the answer denied the 
 only defense to the judgment urged, it was held that the injunction 
 should have been dissolved on the answer, upon the giving of a 
 refunding bond under the Alabama Code. 79 Again, a complaint to 
 enjoin an execution sale under judgment by a justice of the peace 
 simply alleging that plaintiff had no knowledge of the judgment 
 for more than thirty days after its rendition, is insufficient; it 
 should allege also that plaintiff was neither served with the sum- 
 mons nor appeared in the action in which the judgment was ren- 
 dered. 80 
 
 § 634. Enjoining judgment if summons served on Sunday. — 
 In the absence of a contrary statute, judicial proceedings which 
 take place on Sunday are void. 81 And, therefore, it has been 
 decided in Montana that if the summons in an action is served on 
 defendant on Sunday, and judgment entered by default, it is 
 void and may be relieved against by injunction, on the ground 
 that the court acquired no jurisdiction over the defendant. 82 And 
 in such a case the Montana rule is, that the defendant need not 
 
 78. Bently v. Dillard, 6 Ark. 79; 6 S. E. 810. In this case it was also 
 Conway v. Ellison, 14 Ark. 360. held that the judgment was not en- 
 Plaintiff alleged that he was surety joinable as void, because rendered by 
 on a note to defendant for the price the court sitting on the fourth of 
 of a horse; that defendant aided the July. 
 
 principal to trade the horse for a 79. Rice v. Tobias, 83 Ala. 348, 3 
 
 mare, against plaintiff's objection; So. 670. 
 
 that plaintiff notified defendant to 80. Farrington v. Brown, 65 Cal. 
 
 sue said note, both before and after 320. 4 Pac. 26. 
 
 maturity, and make his money out of 81. Story v. Elliot, 8 Cow. 27; 
 
 the property, as the principal was in- Chapman v. State, 5 Blackf. (Ind.) 
 
 solvent; that, afterwards, the note 111; Blood v. Bates, 31 Vt. 147; 
 
 was sued on, and declaration served Pearce v. Atwood, 13 Mass. 324; Ar- 
 
 on plaintiff by leaving a copy at his thur v. Mosby. 2 Bibb. (Ky.), 589; 
 
 residence during his absence, plain- Nevada v. California Min. Co., 13 
 
 tiff having no notice of suit until Nev. 213; Field v. Park, 20 Johns, 
 
 after judgment; that defendant knew, 140, 141; Whitney v. Butterfield, 13 
 
 and resignedly took advantage, of Cal. 342. 
 
 plaintiff's absence; that execution 82. Hauswirth v. Sullivan, 6 
 
 had been issued and levied on plain- Mont. 203, 9 Pac. 798. 
 
 tiff's property. Held, that plaintiff See, also, Alabama. — Crafts v. Dex- 
 
 was not entitled to an injunction ter. 8 Ala. 767; Brooks v. Harrison, 
 
 against the enforcement of the judg- 2 Ala. 209. 
 
 ment. Hamer v. Sears, 81 Ga. 288, Iowa. — Stone v. Skerry, 31 Iowa, 
 
 949
 
 §635 Against Judgments; General Considerations. 
 
 make a motion to set the judgment aside, but may treat it as a 
 mere nullity, for want of jurisdiction, until it is attempted to be 
 enforced against him, and thai may bring an action in equity to 
 have it declared so. 83 And an offer to pay a void judgment, on 
 condition that it be set aside, takes the case out of the rule that 
 execution of a void judgment will not 'be enjoined unl 38 it appears 
 that a different result would be reached. 84 Equity will not inter- 
 fere to set aside a judgment based on an illegal servic. , unless 
 the judgment is unjust; and this must be made to appear from the 
 allegations of the petition. 85 
 
 § 635. Judgment without notice of hearing ; defective sum- 
 mons. — A judgment rendered by a justice of the peace without 
 due notice to defendant of the time and place of hearing, cannot, 
 it is held, be set aside and enjoined by suit in the superior court, 
 as the remedy in such a case is by a motion before the justice to 
 set it aside, or by a writ of recordari in the superior court. 86 And 
 it is decided that a threatened sale of land on execution, under a 
 judgment for deficiency, rendered in foreclosure proceedings, will 
 not be enjoined because the court had not acquired jurisdiction of 
 the mortgagor's person by service of process. The judgment being 
 void, a sale thereunder is without any authority whatever, and 
 cannot work irreparable injury to the mortgagor. 87 But in Col- 
 orado, in a case in which it appeared that the summons was de- 
 fective, and did not comply with the statute, it was held that the 
 
 582; Harshey v. Blackmar, 20 Iowa, Illinois.— Jones v. Neely, 82 111. 72. 
 
 161. Kansas. — Bond v. Wilson, 8 Kan. 
 
 Pennsylvania. — Miller v. Gorman, 229. 
 
 38 Pa. St. 309. "New York. — Latham v. Edgerton, 9 
 
 Tennessee. — Ingle v. McCurry, 1 Cow. 227; Denning v. Corwin, 11 
 
 Heisk. 26; Bell v. Williams, 1 Head, Wend. G48. 
 
 229; Estis v. Patton, 3 Yerg. 382. 84. Rice v. American Nat. Bank, 3 
 
 Wisconsin. — Johnson v. Coleman, Colo. App. 81, 31 Pac. 1024. 
 
 23 Wis. 452. 85. Sharp v. Schmidt, 62 Tex. 263. 
 
 83. Hauswirth v. Sullivan, 6 86. Gallop v. Allen, 113 N. C. 24, 
 
 Mont. 203, 211,9 Pac. 798. 18 S. E. 55; King v. Wilmington & 
 
 See, also, United States.— Kihhe v. W. R. Co., 112 N. C. 318, 16 S. E. 929; 
 
 Benson, 17 Wall. 624, 21 L. Ed. 741. Whitehurst v. Farmers' Transporta- 
 
 Connecticut. — Aldrich v. Kinney, 4 tion Company, 109 N. C. 344, 13 S. 
 
 Conn. 383; Wood v. Watkinson, 17 E. 937. 
 
 Conn. 580. 87. Gillam v. Arnold, 32 S. C. 503, 
 
 950
 
 Against Judgments; General Considerations. §§636,637 
 
 judgment as against both the defendant and garnishee, was void 
 for want of jurisdiction of the persons, and that, therefore, it was 
 proper to restrain the enforcement of the judgment. 88 In an action 
 to enjoin the enforcement of an execution on the ground of irregu- 
 larity in the service of summons on defendant on motion for leave 
 to issue it, where the complaint does not deny that defendant ap- 
 peared at the hearing of the motion, nor show that the proceeding 
 was taken against him without notice, it does not state a cause of 
 action, as pleadings are construed most strongly against the 
 pleader. 89 And where a judgment is rendered on the service of an 
 unauthorized summons it is decided that an injunction will not be 
 granted against its enforcement where it does not appear that a 
 good defense exists against the judgment. 90 
 
 § 636. Enjoining judgment for irregularities.— Injunction will 
 not lie to restrain the collection of a judgment rendered by a justice 
 of the peace on the ground of irregularities occurring at the trial, 
 since an adequate legal remedy may be had by appeal. 91 And 
 generally a judgment will not be enjoined for errors and irregu- 
 larities in the proceedings, the proper remedy being to correct them 
 in the court where suit was brought, or by appeal. 92 And where 
 parties to foreclosure proceedings agreed as to the time and manner 
 of enforcing the decree, it was held that injunction could not lie to 
 restrain a sale contrary to the agreement, as the court granting the 
 decree had control of it, and jurisdiction for all relief in the fore- 
 closure suit. 93 
 
 § 637. Enjoining void judgments.— It may be stated as a gen- 
 eral rule that a party may be restrained from enforcing a void 
 
 92. Clopton v. Carloss, 42 Ark. 
 
 U M Rice v American Nat. Bank, 3 560; Young v. Deneen 200 111. 350 
 
 n i a™ I 31 Pac 1024. 77 N. E. 193; Hart v. O'Rourke, 151 
 
 C °89 Pursel 'v Del ,16 Or. 295, 18 Ind. 205, 51 N. E. 330; Davis v. 
 
 89. Fursei v. ue* , Clements, 148 Ind. 605, 47 N. E. 
 
 ^90 Fi'ches v. Vick, 50 Neb. 401, 1056; Missouri, R. * T R. Co. v. 
 
 xr w oil Warden, 73 Mo. App. 117. 
 
 69 N. W. yai. 12R , d 93. B uell v. San Francisco Sav- 
 
 91. Parsons v. Pierson, 128 ma. w* 
 
 479, 28 N. E. 97. ,n S 3 Um0D ' 65 Cal * 9 *' 4 *"" "* 
 
 951
 
 § G37 Against Judgments; General Considerations. 
 
 judgment. 94 The averments of the petition in an action to enjoin 
 the collection of a judgment on the ground that the judgment was 
 void should affirmatively state facts which show that the judgment 
 was void. 95 The rule, however, is subject to the qualification in 
 most jurisdictions that it must appear that the party seeking such 
 relief has no adequate remedy at law, or, having a remedy, has 
 exhausted it. 96 The plaintiff must show by his bill for injunction 
 
 94. Alabama. — Martin v. Atkin- 
 son, 108 Ala. 314. 18 So. 888. 
 
 California. — Chester v. Miller, 13 
 Cal. 558. 
 
 Georgia. — Austin v. McLarin, 51 
 Ga. 467. 
 
 Indiana. — Hart v. O'Rourke, 151 
 Ind. 205, 51 N. E. 330. 
 
 Kansas. — Cook v. Senior, 3 Kan. 
 App. 278, 45 Pac. 126. 
 
 Louisiana. — Hernandez v. James, 
 23 La. Ann. 483. 
 
 Missouri. — Goldie Const. Co. v. 
 Richmond Const. Co., 112 Mo. App. 
 147, 86 S. W. 587; Gazollo v. Mc- 
 Cann. 63 Mo. App. 414. But com- 
 pare Strauh v. Simpson, 74 Mo. App. 
 230. 
 
 Nebraska. — Kaufman v. Drexel, 56 
 Neh. 229, 76 N. W. 559. 
 
 Oklahoma. — Weber v. Dillon, 7 
 Okla. 568. 54 Pac. 894. 
 
 Tennessee. — Caruthers v. Harts- 
 field, 3 Yerg. 366, 24 Am. Dec. 580. 
 
 Texas.— See Gulf C. & S. F. R. Co. 
 v. Blanckenbeckler, 13 Tex. Civ. App. 
 249. 35 S. W. 331. 
 
 Under the Indiana Revised 
 Statutes of 1881, which provide 
 for restraining proceedings on a final 
 judgment, the judgment of a justice 
 of the peace will not be enjoined, on 
 collateral attack, on the ground that 
 the justice tried the case by a jury 
 of twelve, instead of six, as the judg- 
 ment was not void for that reason. 
 Rhodes-Burford Furniture Co. v. Mat- 
 
 tox, 135 Ind. 372, 34 N. E. 326, 35 N. 
 E. 11, per McCabe, J.: "This was a 
 collateral attack upon the judgment, 
 and it has been settled by a long line 
 of cases in his court, that for mere 
 error or irregularity in the proceed- 
 ing of a court of special and limited 
 jurisdiction, where such court has 
 jurisdiction over the parties and sub- 
 ject of the action, the judgment can- 
 not be collaterally attacked for such 
 error or irregularity, any more than 
 if the court was one of general juris- 
 diction. Argo v. Barthand, 80 Ind. 
 63; Stoddard v. Johnson, 75 Ind. 20; 
 Hume v. Draining Assoc'n, 72 Ind. 
 499; Goddard v. Stockman. 74 Ind. 
 400; Mu Mil; in v. Bloomington, 72 Ind. 
 161; Miller v. Porter, 71 Ind. 521; 
 Porter v. Stout, 73 Ind. 3; Houk v. 
 Barthold. 73 Ind. 21; Fetherston v. 
 Small. 77 Ind. 143." 
 
 Where judgment is only void- 
 able will not he enjoined. Hart 
 v. Manahan, 70 Ohio St. 189, 7 N. 
 E. 696. 
 
 95. Zimmerman v. Trude (Neb. 
 1908), 114 N. W. 641. 
 
 96. Alabama. — Murphree v. Bishop/ 
 79 Ala. 404. \ 
 
 Arkansas. — Fuller v. Tounsley My- ' 
 rick D. G. Co., 58 Ark. 314, 24 S. W. ' 
 635. 
 
 Georgia. — Bagwell v. Head, 40 Ga. 
 145. 
 
 Nevada. — Dalton v. Libby, 9 Nev. 
 192. 
 
 952
 
 Against Judgments; Geneeal Considerations. 
 
 63S 
 
 that he has no adequate remedy at law, either by appeal from the 
 judgment, or by certiorari, or by application to the court which 
 rendered it. 97 And in some decisions it is also held that the judg- 
 ment must not be one which is void upon its face. 98 So where a 
 judgment recovered against plaintiffs as garnishees was void, an 
 injunction restraining the defendants from collecting the judg- 
 ment by execution was held to be properly granted. 99 
 
 § 638. Judgments void for want of jurisdiction. — Where a 
 judgment is void for want of jurisdiction it is generally held that 
 its enforcement may be enjoined. 1 The rule, however, is subject 
 to limitations asserted in various decisions such as that the judg- 
 
 New Mexico. — Gutierres v. Pino, 1 
 N. M. 392. 
 
 Texas — Geers v. Scott (Civ. App.), 
 33 S. VV. 587. 
 
 97. Fuller v. Townsley-Myrick 
 Drygoods Co., 58 Ark. 314, 24 S. W. 
 635; Winfield v. McLure, 48 Ark. 
 510, 3 S. W. 439; Shaul v. Duprey, 
 48 Ark. 331, 3 S. W. 366. 
 
 98. Martin v. Atkinson, 108 Ala. 
 314, 18 So. 888; Kaufman v. Drexel, 
 56 Neb. 229, 76 N. W. 559. See Goldie 
 Const. Co. v. Richmond Const. Co., 
 112 Mo. App. 147, 86 S. W. 587. 
 
 99. Rice v. American Nat. Bank, 3 
 Colo. App. 81, 31 Pac. 1024, per Rich- 
 mond, P. J.: "All exceptional meth- 
 ods of obtaining jurisdiction over per- 
 sons not found within the State, must 
 be confined to the cases and exercised 
 in the way precisely indicated by the 
 statute. In Padden v. Moore, 58 
 Iowa. 703. this doctrine is laid down: 
 A party cannot be required to appear 
 as garnishee at any other time, any 
 more than a party to an action can 
 be required to appear in obedience to 
 an original notice at any other time 
 than that fixed by law. The author- 
 ity to prosecute garnishee proceed- 
 ings is entirely statutory, and unless 
 the requirements of the statute are 
 
 complied with the proceedings cannot 
 be sustained. McDonald v. V'inette, 
 58 Wis. 619, 17 N. W. 319. . . . 
 The summons was defective. It did 
 not comply with the statute, and 
 the judgment thereupon rendered, 
 both against the defendant and the 
 garnishee was void for want of the 
 jurisdiction of the persons. The scire 
 facias was issued in violation of the 
 statute, and the bank was under no 
 obligation to pay attention to it. The 
 action of the court in granting the in- 
 junction restraining the enforcement 
 of the judgment was proper and must 
 be affirmed." 
 
 1. Georgia. — Hart v. Lazaron, 46 
 Ga. 396. 
 
 Illinois. — Follansbee v. Scottish 
 American M. Co., 7 111. App. 486. 
 
 Nebraska. — Bankers' L. I. Co. v. 
 Robbins, 53 Neb. 44, 73 N. VV. 269. 
 
 New York. — Wilmore v. Flack, 96 
 N. Y. 512. 
 
 Oregon. — Handley v. Jackson, 31 
 Oreg. 552, 50 Pac. 915; White v. Es- 
 pey. 21 Oreg. 328. 28 Pac. 71. 
 
 Tennessee. — Walker v. Wynne, 3 
 Yerg. 62. 
 
 Texas. — Cunningham v. Taylor. 20 
 Tex. 126; Maybin v. Fitzgerald (Tex. 
 Civ. App.), 45 S. W. 611. 
 
 953
 
 § C39 Against Judgments; General Considerations. 
 
 ment must be shown to bo inequitable, 1 * that the party against whom, 
 it was rendered has a meritorious defense, 2 and that there is no 
 adequate remedy at law. 3 So equity will not enjoin a judgment at 
 law on the ground of a want of jurisdiction of the defendant, there 
 being no evidence that the judgment is inequitable, for in such 
 a case the error could have been cured by appeal or writ of error. 4 
 And in Missouri it is decided that equity will not enjoin the 
 enforcement of a judgment void for want of jurisdiction, 5 for in 
 such a case no title would pass to an execution purchaser, and the 
 judgment debtor would have an adequate remedy at law by an 
 action against the constable or other officer as a trespasser. 6 And 
 in a suit to enjoin the enforcement of a judgment rendered twenty 
 years before, it has been decided that it will not be presumed that 
 tho amount involved was not within the jurisdiction of the Circuit 
 Court, where the declaration contained several counts which to- 
 gether claimed a greater amount, though the judgment rendered 
 was for less than the jurisdictional amount. 7 Tho principle that a 
 judgment by a court without jurisdiction of the parties and the 
 subject matter is a nullity and must be so treated by other courts 
 whenever it is presented and relied on applies to an order of in- 
 junction made by a court without jurisdiction, interposed against 
 an application for mandamus. 8 
 
 § 639. Default judgments. — While the enforcement of a de- 
 fault judgment may be enjoined yet it is generally held essential 
 
 la. Farwell Co. v. Hilbert, 91 plete and efficient. Bankers' L. I. 
 
 Wis. 437, 65 N. VV. 172, 30 L. R. A. Co. v. Robbins, 53 Neb. 44, 73 N. VV. 
 
 235. 269. See, also, §§ 26a, 26b, herein. 
 
 2. Bankers' L. I. Co. v. Robbins, 4. Virginia v. Dunaway, 17 111. 
 53 Neb. 44, 73 N. VV. 269. App. 68. 
 
 3. St. Louis & S. F. R. Co. v. See § 617 herein. 
 
 Lowder, 138 Mo. 533, 39 S. W. 799; 5. St. Louis T. M. & S. Ry. Co. v. 
 
 Bankers' L. I. Co. v. Robbins, 53 Neb. Reynolds, 89 Mo. 146, 1 S. W. 208. 
 44, 73 N. W. 269. 6. Sayre v. Tompkins, 23 Mo. 443; 
 
 Wliere remedy of certiorari is Deane v. Todd, 22 Mo. 90; Bank v. 
 
 available an injunction will not be Meredith, 44 Mo. 500. 
 granted. San Antonio & A. P. R. Co. 7. Hill v. Gordon, 45 Fed. 276. 
 
 v. Glass (Tex. Civ. App.), 40 S. VV. 8. State v. Murray (S. C. 1908), 
 
 339. 60 S. E. 928. 
 
 Remedy at law mast be com- 
 
 954
 
 Against Judgments; General Considerations. §639 
 
 to show a meritorious defense to the judgment, 9 that the defendant 
 was guilty of no fault or negligence in connection with the rendi- 
 tion of such judgment, and that there is no adequate remedy at 
 law. So a Code provision that a court in which a judgment has 
 been entered by default may, on motion, reverse it for any error, 
 is held to furnish an adequate remedy at law against a judgment 
 by default, and a bill to enjoin it cannot be maintained. 10 And 
 where a judgment, valid on its face, was rendered against one per- 
 son, who was never served with summons, and never appeared in 
 the cause, and was entered against another by default before the 
 time for answering had expired, they must show, in order to stay 
 the enforcement of the judgment, that they had a good defense to 
 the action at law, and the averment that, at the time of the entry 
 of the judgment, there was no cause of action, was a perfect de- 
 fense. 11 And where, in an action on a note in a justice's court, 
 defendant pleaded the statute of limitation, but did not appear at 
 the trial, execution of the default judgment will not be restrained. 12 
 Nor will the enforcement of a default judgment be restrained 
 where it was taken in a cause of action arising out of a lottery 
 transaction. 13 But equity will cancel and enjoin the enforcement 
 of a judgment by default rendered by a justice after he had lost 
 
 9. Richardson Drug Co. v. Duna- ski v. Bardonski, 144 111. 284, 33 N. 
 
 gan, 8 Colo. App. 308, 46 Pac. 227; E. 39. Where a judgment is entered 
 
 Combs v. Hamlin Wizard Oil Co., 58 by default against a nonresident de- 
 
 111. App. 123; Hockaday v. Jones, 8 fendant, who has not been personally 
 
 Okla. 156, 56 Pac. 1054. Compare served with summons within this 
 
 Mosher v. McDonald & Co. (Iowa, State, the court has power to set it 
 
 1906), 102 N. W. 837. aside on a motion in the same action, 
 
 9a. Richardson Drug Co. v. Duna- if such motion is made within a rea- 
 
 gan. 8 Colo. App. 308, 46 Pac. 227; sonable time, and an independent 
 
 Bankers' L. I. Co. v. Robbins, 53 action need not be brought. Norton 
 
 Neb. 44, 73 N. W. 269; Hockaday v. v. Atchison, T. & S. F. R. Co., 97 
 
 Jones, 8 Okla. 156, 56 Pac. 1054. Cal. 388, 32 Pac. 452. 
 
 9b. Hockaday v. Jones, 8 Okla. 11. Harnish v. Bramer, 71 Cal. 
 
 156, 56 Pac. 1054. 155, 11 Pac. 888. 
 
 10. Brown v. Chapman, 90 Va. 12. Ivey v. McConnell (Tex. Civ. 
 
 174, 17 S. E. 855. A default judg- App.), 21 S. W. 403. 
 
 ment is not enjoinable because of at- 13. Pacific Debenture Co. v. Cald- 
 
 torney's neglect to file plea. Bardon- well, 147 Cal. 106, 81 Pac. 314, 
 
 955
 
 §640 Aoainst Judgments; Cknikal Considkpvtions. 
 
 jurisdiction by an unlawful adjournment. 14 And an injunction 
 will issue to restrain the enforcement of a judgment rendered in 
 a justice's court by default, in violation of an agreement between 
 the parties that the case should not be called for trial except by 
 consent, where it appears that no new trial can be had, that the 
 amount in controversy is such that no appeal can be taken, and 
 that there is a valid defense to the action. 10 Where a debtor, who 
 is in fact only a surety, on being Berved in an action against the 
 principal debtor, makes default on being assured by the creditor 
 that he is already secured by an attachment, and does not intend 
 to pursue him or look to him for any portion of the debt, he may 
 enjoin an execution issued against him in violation of such stipu- 
 lations. 16 
 
 § 640. Default through neglect. — Where a party has been 
 regularly served with process in a cause, and neglects to appear 
 and defend the suit, but suffers judgment to be taken by default, 
 and he has not been prevented from making a defense by fraud 
 or accident, unmixed with negligence on his part, a court of equity 
 will not afford him any relief against the judgment. 11 So a peti- 
 tion to enjoin the sale of land under an execution, which avers that 
 
 14. Iowa Union Tel. Co. v. Boylan, ' where a party has been regularly 
 8G Iowa, 90, 52 N. VV. 1122. And see served with process and neglects to 
 Crandall v. Bacon, 20 Wis. 639; appear and defend, and suffers judg- 
 Br/>wn v. Kellogg, 17 Wis. 475. ment to be taken by default, and has 
 
 15. Gulf, etc., R. Co. v. King. 80 not been prevented from making a 
 Tex. 681, 16 S. W. 641; Gulf, C. & defense by fraud or accident, un- 
 S. F. Ry. Co. v. Rawlins, 80 Tex. mixed with negligence on his part, a 
 679, 16 S. W. 430; Bryorly v. Clark, court of equity will not afford him 
 48 Tex. 345. any relief against the judgment, 
 
 16. Kelley v. Kriess, 68 Cal. 210, though it may be unjust.' The alle- 
 9 Pac. 129. gations in reference to the failure of 
 
 17. Hoey v. Jackson. 31 Fla. 541, the attorney to appear for defendants 
 13 So. 459, per Mabry, J.: "As ap- in the ejectment suit are insufficient, 
 pears from the bill, an opportunity In the first place, such a failure is in 
 was given to make this defense, as a no way attributable to Jackson, and, 
 summons in said suit was regularly at most, would be the neglect of their 
 issued, and properly served upon the own agent. Shepard v. Akers. 3 Tenn. 
 defendants. In Railroad Co. v. Hoi- Ch. 215. But it does not appear that 
 brook, 92 111. 297, it was held that any attorney was consulted after suit 
 
 056
 
 Against Judgments ; General Consideeations. § 641 
 
 the judgment was rendered in violation of an agreement between 
 the attorneys of the parties that the same should be taken for a 
 less amount, is fatally defective if it does not show authority in 
 the attorneys to make the agreement. Such a petition must not 
 only show that petitioner was not guilty of neglect in permitting 
 the judgment to go by default, but also that it is inequitable and 
 unjust to permit it to be enforced. 18 And one cannot ask that the 
 collection of a judgment against him be enjoined, where his omis- 
 sion to defend was caused by his being misled by the clerk as to the 
 character of the suit. 19 
 
 §641. Same subject; in Mississippi and Texas. — In Missis- 
 sippi it is decided that where a judgment is rendered by default 
 without service of process, in orde* to obtain relief in equity, de- 
 fendant must show not only want of service, but that he has a good 
 defense to the action. 20 And in Texas it is decided that where a 
 party seeks to enjoin a judgment rendered against him, he must 
 
 was instituted, and the mere fact that 
 copy of summons was sent to the at- 
 torney who had previously been con- 
 sulted does not show sufficient dili- 
 gence. It is not even alleged that the 
 attorney received the copy of sum- 
 mons, or knew that the suit had been 
 instituted. The allegations of the 
 bill fail to show, we think, any suf- 
 ficient reason, in law, why complain- 
 ants did not make their defense at 
 law." 
 
 See, also, Richardson Drug Co. v. 
 Dungan, 8 Colo. App. 308, 46 Pac. 
 227; Hockaday v. Jones, 8 Okla. 156, 
 56 Pac. 1054. 
 
 18. Anderson v. Oldham, 82 Tex. 
 228, 18 S. W. 557; Freeman v. Mil- 
 ler, 53 Tex. 377; Hair v. Labuzan, 
 19 Ala. 224. 
 
 19. Hanna v. Morrow, 43 Ark. 107. 
 
 20. Newman v. Taylor, 69 Miss. 
 670, 13 So. 831, per Cooper, J.: 
 " The appellee, against whom a judg- 
 ment at law had been rendered with- 
 
 out notice, could have secured relief 
 by motion in the law court, upon the 
 trial of which it would only have de- 
 volved on him to show that no ser- 
 vice of process had been made on 
 him. Meyer v. Whitehead, 62 Miss. 
 387. Instead of resorting to the 
 court of law, he has applied to chan- 
 cery for relief, and, being in a court 
 of equity, finds himself subjected to 
 the operation of the equitable maxim 
 that ' he who seeks equity must do 
 equity,' by reason of which it was in- 
 cumbent on him to show, not only 
 that the judgment at law was void, 
 but that he has a good defense to the 
 suit. Stewart v. Brooks, 62 Miss. 
 492. Under the old practice in chan- 
 cery, the rule was to award a new 
 trial at law, but since the extension 
 of the power of relief in courts of 
 law this jurisdiction has become 
 practically obsolete. 3 Pom. Eq. Jur., 
 1365. Courts of equity yet relieve 
 against judgments obtained by fraud, 
 
 957
 
 § C42 Against Judgments; General Considerations. 
 
 show that hirf failure to answer was not attributable to his own 
 omission, neglect or default, and that he has a good defense to the 
 • ntire cause of action, or to such part of it as he proposes by his 
 petition to litigate. It is not enough to show that he was not guilty 
 of neglect in permitting the judgment to go by default, but he 
 must also show that it u inequitable to permit it to be enforced. 21 
 
 § 042. Where default judgment only irregular; where void. — 
 A judgment rendered without service of notice, or other process 
 required by law, is held to be void for want of jurisdiction in the 
 court rendering it, and will be set aside and process on it enjoined. 28 
 And such a judgm< at, bring absolutely void, it seems that the judg- 
 ment debtor may restrain its enforcement without showing that he 
 is not indebted to the party obtaining it, for otherwise a void judg- 
 ment would be prima fan* evidence of indebtedness. 23 But where 
 in an action 'before a justice, before the time for entering an ap- 
 pearance had elapsed, defendant came in, found no one present, 
 and after the expiration of the time went away and paid do further 
 attention to the case, and later the justice entered judgment by 
 default, it was held, that defendant's remedy was by appeal or 
 writ of error, and that he could not obtain an injunction to restrain 
 the enforcement of the judgment, which, though irregular, was not 
 void. 24 
 
 accident, or mistake. This relief ia Givens v. Campbell, 20 Iowa 80- 
 
 not now by granting a new trial at Connell v. Stelson, 33 Iowa, 149. 
 law, but the court of equity will take See § 631 herein, 
 
 full and final jurisdiction, so as to do 23. Arnold v. Hawley, 67 Iowa, 
 
 complete justice between the parties. 313, 315, 25 N. W. 259. And see 
 
 Hale v. Bozeman. 60 Miss. 965. The Dady v. Brown. 76 Iowa, 529, 41 
 
 complainant was entitled to relief N. VV. 209; State Insurance Company 
 
 only upon condition of showing that v. Waterhouse, 78 Iowa, 674, 43 N. 
 
 he had a valid defense against the W. 611. 
 
 claim on which the judgment was 24. Central Iowa Ry. Co. v. Pier- 
 rendered." sol, 65 Iowa, 498, 22 N. W. 648; 
 
 21. Anderson v. Oldham, 82 Tex. Cory v. King, 49 Iowa, 365. And see 
 228, 231, 18 S. W. 557; Freeman v. as to appeal or writ of error in such 
 Miller, 53 Tex. 377. a case, Ryan v. Varga, 37 Iowa, 78; 
 
 22. Iowa Un. Tel. Co. v. Boylan, Dishon v. Smith, 10 Iowa, 212; Mor- 
 86 Iowa, 90, 52 N. W. 1122; Gerrish row v. Weed, 4 Iowa, 77; Cooper v. 
 v. Hunt, 66 Iowa, 683, 24 N. W. 274; Sunderland, 3 Iowa, 114. 
 
 958
 
 Against Judgments; General Considerations. §§ 643, 644 
 
 § 643. Enjoining confessed judgments. — If a judgment is con- 
 fessed with the agreement that it is not an ascertainment of so 
 much actual indebtedness, but only a security for so much as 
 might thereafter be ascertained to be due, equity will prevent the 
 judgment from being used for a different purpose. 25 Where a 
 judgment is collusively confessed, for the purpose of defeating a 
 prior judgment, and of protecting the judgment debtor's property 
 from his creditors, the owner of the prior judgment may have the 
 execution of the confessed judgment restrained. 26 And where a 
 note given by trustees of a religious society, in the corporate 
 name, to persons who had a claim against the society, included 
 also the amount of certain suspicious claims in favor of the trus- 
 tees against the society, it was held to be affected with fraud, 
 and that the society could enjoin the enforcement of a judgment 
 entered on the note under a warrant of attorney. 27 But where a 
 creditor enjoined a confessed judgment on the ground of fraud, and 
 then proceeded to recover judgment against the debtor and issue 
 execution, his injunction was dissolved because he refused to make 
 his election between his legal and equitable remedies. 28 
 
 § 644. Same subject. — An action will not lie to enjoin an 
 execution sale and to compel the performance of a verbal agree- 
 ment to stay execution for a year, in consideration of confession 
 of judgment, where it appears that complainant is guilty of laches 
 in not resorting to his adequate and speedy legal remedy by motion 
 to set aside the execution and stay all other process until the ex- 
 poration of the year agreed upon. 29 As between the parties thereto, 
 
 25. Keighler v. Savage Mfg. Co., which has been properly pleaded, and 
 12 Md. 383. the confession is made by one who is 
 
 26. Oakley v. Young, 6 N. J. Eq. not the defendant's attorney, he be- 
 453 ing absent from court, and the de- 
 
 27. United Brethren Church v. fendant himself being unable to at- 
 Vandusen, 37 Wis. 54. And see tend, on account of both mental and 
 Brown v. Parker, 28 Wis. 21; bodily affliction, and there is mani- 
 Huebschman v. Baker, 7 Wis. 542. fest equity set up to the debt, a per- 
 
 28. Livingston v. Kane, 3 Johns. petual injunction may be granted 
 Ch (NY.) 224. Where a judgment against the scire facias to enforce it. 
 is confessed upon a note barred upon Cheek v. Taylor, 22 Ga. 127. 
 
 its face by the statute of limitations, 29. Moulton v. Knapp, 85 Cal. 
 
 959
 
 §045 Against Judgments; General Considerations. 
 
 a judgment upon a warrant of attorney to secure a contingent 
 liability is not void, nor will it be set aside, nor its collection 
 restrained because the plaintiffs affidavit annex d to the complaint 
 is defective; 30 but if the warrant of attorney was improperly ob- 
 tained and the judgment defendant had no remedy against the 
 judgment in a court of law, jurisdiction in equity could be main- 
 tained. 31 Where, without fraud on the part of plaintiff, the 
 defendant confesses judgment with full knowledge of the fact3 
 connected with it, he is estopped from setting up any defense to 
 the debt which existi d anterior to the confession, and has no 
 standing in equity to ask that the judgment be enjoined, except on 
 some equity arising subsequently to the confession. 32 Nor can 
 a dtbtor enjoin the enforcement of a judgment which he has con- 
 !' ssed by way of compromise, for an amount smaller than that 
 claimed by the creditor; 33 nor upon the ground that the cause of 
 action was barred by the statute of limitations; 34 nor where the 
 judgment was entered on the authorized consent of the defendant's 
 attorney. 35 
 
 § 645. Chancery jurisdiction over judgments at law. — Equity, 
 once having jurisdiction in a case, such as a bill for partition of 
 land, and to have a contract respecting other land specifically 
 enforced, may, as an incident to the relief granted, enjoin the 
 
 385, 24 Pac. 803. And see Ede v. indebtedness arose. Miller v. Earle, 
 
 Hazen, 61 Cal. 360; Imlay v. Carpen- 24 N. Y. 110; Neusbaum v. Keim, 24 
 
 tier 14 Cal. 173. N. Y. 325; Hopkins v. Nelson, 24 
 
 30. Reiley v. Johnston, 22 Wis. N. Y. 518." Technical informalities 
 
 279, per Cole, J. : " If the statement in a judgment on confession should 
 
 was defective, this did not render be cured in courts of law. Shedd v. 
 
 the judgment void as between the Brattleboro Bank, 32 Vt. 70!), 716. 
 
 parties thereto. As to third persons, 31. Truett v. Wainwright, 9 111. 
 
 whose rights have attached by a judg- 418. 
 
 ment. or by foreclosure of, or of a 32. Moore v. Barclay, 23 Ala. 739. 
 
 lien on property affected by the con- 33. Morehead v. DeFord, 6 W. Va. 
 
 fessed judgment, it might, perhaps, 316. 
 
 be set aside for that reason. But the 34. Harner v. Price, 17 W. Va. 
 
 judgment would be good as between 523. 
 
 the parties, though the statement on 35. King v. Watts, 23 La. Ann. 
 
 which it is founded does not specifl- 563. 
 cally state the facts out of which the 
 
 960
 
 Against Judgments ; General Considerations. § 646 
 
 enforcement of a judgment at law rendered in an action which 
 might have been successfully defended at law. 36 In Maryland it 
 has been held that the court of chancery may enjoin the enforce- 
 ment of a decree of the Court of Appeals which has been already 
 satisfied. 37 
 
 § 646. Same subject ; in other States. — The County Court,, 
 under the Illinois statute relating to general assignments, was 
 given no jurisdiction of a suit by creditors to enjoin the sheriff 
 from paying the proceeds of certain executions to the plaintiffs 
 therein, on the ground that the judgments on which they were 
 issued were fraudulently confessed by the debtor, in contemplation 
 of an assignment, since such property is not in the possession of the 
 court, but held adversely by the sheriff ; 38 and in such a case a court 
 of equity has jurisdiction, and its intervention is indispensable 
 for the protection of creditors' rights on the assignee refusing to 
 act. 39 In Virginia it has been decided that a judge of a County 
 Court may enjoin an execution which is to take effect in his county 
 or district, for as the county judges are required to reside within 
 their respective counties or districts, they are more accessible to 
 suitors than judges of the Circuit Courts. 40 In Kansas, under the 
 
 36. McDowell v. McDowell, 114 498; Stratton v. Allen, 16 N. J. Eq. 
 111. 255, 2 N. E. 56. 229; Doughty v. Doughty, 27 N. J. 
 
 37. McClellan v. Crook, 4 Md. Ch. Eq. 315, 28 N. J. Eq. 581; Railroad 
 (Johnson) 398. In First Bap. Church Co. v. Titus, 28 N. J. Eq. 269; Me- 
 of Hoboken v. Syms, 51 N. J. Eq. 363, chanics' Nat. Bank v. Burnet Mfg. 
 28 Atl. 461, McGilLCh., said: "This Co., 33 N. J. Eq. 486; Cutter v. 
 court cannot sit in judgment upon Kline, 35 N. J. Eq. 534; Herbert v. 
 the lawful acts of other tribunals, Herbert, 49 N. J. Eq. 70, 22 Atl. 789; 
 and review the conduct of those tri- S. C. 49 N. J. Eq. 566, 25 Atl. 366. 
 bunals, to see whether in the exercise As to enjoining execution 
 of their rightful powers they have where judgment paid or satis- 
 committed error, either in law or in fied, see § 625 herein. 
 
 fact; but its power to give relief 38. Lindauer v. Lang, 29 111. App. 
 
 against a judgment which has been 188. 
 
 procured by fraud or imposition upon 39. Preston v. Spaulding, 120 111. 
 
 another court is beyond all question. 208, 214, 10 N. E. 903; Second Nat. 
 
 Glover v. Hedges, 1 N. J. Eq. 119; Bank v. English, 21 111. App. 317. 
 
 Boulton v. Scott. 3 N. J. Eq. 236; 40. Rosenberger v. Bowen, 84 Va. 
 
 Tomkins v. Tomkins, llN.J.Eq. 512; 660, 5 S. E. 697. 
 Reeves v. Cooper, 12 N. J. Eq. 223 
 
 961 
 61
 
 § 647 Against Judgments ; General Considerations. 
 
 statute, a final judgment against a garnishee cannot legally be 
 rendered by a justice of the peace; if it is rendered, and an execu- 
 tion issued on it, the enforcement of the execution will be enjoined, 
 as the judgment is utterly void/ 1 
 
 § 647. Same subject continued. — In Ohio, it is deemed to be 
 settled doctrine, that when courts of equity have once been vested 
 with jurisdiction to enjoin judgments, they retain it if not ex- 
 pressly taken from them by statute, though courts of law subse- 
 quently have jurisdiction conferred upon them. 42 The more 
 appropriate remedy whore an ex> cut ion has been erroneously issued 
 is by application to the court from which it issues to set it aside. 
 But where the execution has been Benl to another county, and 
 suit brought there to enjoin its enforcement, the injunctive relief 
 may be granted if the execution creditor appears and answers to 
 the merits without making objection to the jurisdiction or mode 
 of proceeding. 43 In some States, jurisdiction has been maintained 
 to enjoin the execution of a judgment which has been paid, though 
 the complainant could have the execution set aside by motion in 
 the court issuing the execution. 44 In a case in New York where 
 plaintiff sued defendant in the Supreme Court for damages for 
 breach of a contract to sell goods, and defendant, after appearing 
 in the action, sued plaintiff in the court of common pleas of New 
 York city and county for a balance alleged to be due on the pur- 
 chase price of the goods sold, and recovered judgment by default, 
 it was held that, even if judgment had not been entered in the 
 court of common pleas, or even if the judgment were irregular 
 for want of service, the Supreme Court had no power to restrain 
 defendant from proceeding in that court, except, perhaps, in an 
 independent action in equity. 45 In such a case the common pleas 
 
 41. Missouri Pacific Ry. Co. v. 43. Miller v. Longacre, 26 Ohio St. 
 Reid, 34 Kan. 410, 8 Pae. 846; Cham- 291. And see Nicholson v. Pim, 5 
 bers v. Bridge Mfg. Co., 16 Kan. 270; Ohio St. 25; Rees v. Smith, 1 Ohio, 
 McNeill v. Edie, 24 Kan. 108; Mas- 124. 
 
 tin v. Gray, 19 Kan. 461; Earle v. 44. Miller v. Longacre, 26 Ohio 
 
 McVeigh, 91 U. S. 503, 505, 23 L. St. 291. 297; Crawford v. Thurmond, 
 
 Ed. 398. 3 Leigh (Va.), 85. 
 
 42. Long v. Mulford, 17 Ohio St. 45. Bradley Salt Co. v. Keating, 
 484. 61 Hun, 251, 16 N. Y. Supp. 795. 
 
 962
 
 Agaixst Judgments; General Considerations. §§648,649 
 
 court should have been moved to correct or vacate its own judg- 
 ment. 46 
 
 § 648. Statutory jurisdiction; California, etc. — In California 
 it has been decided that one court has no jurisdiction to enjoin 
 execution of the judgments of another court of co-ordinate juris- 
 diction, unless the latter court is unable, by reason of its jurisdic- 
 tion, to afford the relief sought, 47 and that one District Court has 
 no jurisdiction to enjoin the execution of a judgment of another 
 District Court; 48 or to enjoin the prosecution of an action pending 
 in another District Court. 49 And the fact that the judge of the 
 court where the judgment sought to be enjoined was rendered is 
 disqualified from sitting in the case, does not constitute an excep- 
 tion to the rule. 50 And in Wisconsin, one Circuit Court will not 
 restrain the enforcement of a judgment whether for legal or equit- 
 able relief rendered in another Circuit Court. 51 And a judgment 
 or decree in equity cannot be enjoined in a second suit in equity, 
 whether the second suit be brought in the same or another court, 
 either by a party or by a stranger to the first suit. 52 And a Circuit 
 Court has no power to restrain the execution of a writ of assistance 
 awarded upon a judgment of the County Court of that county, 
 they being courts of co-ordinate jurisdiction. 53 
 
 § 649. Same subject; Indiana, Kentucky, etc. — Under the 
 Indiana statute authorizing an action to review a judgment for 
 
 46. New York, etc., R. Co. v. sale of certain property which had 
 Haws, 56 N. Y. 175. heen wrongfully levied. 
 
 47. Anthony v. Dunlap, 8 Cal. 27; 49. Judson v. Porter, 51 Cal. 562. 
 Rickett v. Johnson, 8 Cal. 35; Chip- 50. Flaherty v. Kelly, 51 Cal. 
 man v. Hibbard, 8 Cal. 270; Gorham 145. 
 
 v Toomey, 9 Cal. 77; Uhlfelder v. 51. Orient Ins. Co. v. Sloan, 70 
 
 Levy, 9 Cal. 614; Hockstacker v. Wis. 611, 36 N. W. 388. The rule 
 
 Levy^ 11 Cal. 76. was applied to a judgment in equity 
 
 48. Crawley v. Davis, 37 Cal. 268; rendered by another court in Platto 
 Flaherty v. Kelly, 51 Cal. 145. In v. Deuster, 22 Wis. 482. And see 
 Crowley v. Davis, supra; Pixley v. Wood v. Lake, 13 Wis. 84. 
 Huggins, 15 Cal. 127, is distinguished 52. Endter v. Lennon, 46 Wis. 
 as a case where not the execution of 299, 50 N. W. 194. 
 
 the judgment waB enjoined, but the 53. Platto v. Deuster, 22 Wis. 482. 
 
 963
 
 §650 Against Judgments; General Considerations. 
 
 error of law appearing in the proceeding or judgment, or for ma- 
 terial new matter discovered since the rendition of the judgment, 
 fraud or irregularity of the clerk or sheriff, after judgment, in 
 altering the entry of it, or in connection with issuing the execu- 
 tion or making the levy, cannot be reviewed, but the appropriate 
 remedy is to enjoin a levy and sale. 54 The provision of the Ken- 
 tucky Code that " an injunction to stay proceedings on a judgment 
 shall not be granted in an action brought by the party seeking the 
 injunction in any other court than that in which the judgment 
 was rendered," applies to all parlies who seek to stay such pro- 
 ceedings as well as to the party against whom the judgment was 
 rendered, and under this provision the Louisville chancery court 
 has no jurisdiction to enjoin proceedings on a judgment of the 
 Jefferson court of common pleas. 00 And the Circuit Court has no 
 jurisdiction to enjoin an execution issued upon a judgment ren- 
 dered by a justice of the peace. 58 Under the Tennessee statutes 
 of 1829 and 1831, a judgment against an administrator or execu- 
 tor within six months after their qualification, and an execution 
 issued within less than twelve months, cannot be enjoined by a 
 court of equity. 57 And in Iowa the similar rule exists that a suit 
 to enjoin proceedings in an action or upon a judgment must be 
 brought in the county and court in which the action is pending 
 or the judgment was obtained. 58 
 
 § 650. Jurisdiction to enjoin Federal judgments. — It is no 
 reason for enjoining a judgment regularly recovered at law in a 
 Federal court, that the record therein fails to show that the citizen- 
 ship of the assignor of the plaintiff therein was such as to give 
 the court jurisdiction, for judgments of Federal courts, rendered 
 upon personal service, are valid until reversed, even if the record 
 fails to show the facts on which jurisdiction rests. 59 
 
 54. Ferguson v. Hull, 136 Ind. Davis v. Davis, 10 Bush (Ky.) 274. 
 399, 36 N. E. 254. 57. Roche v. Washington, 7 
 
 55. Mallory v. Dauber, 83 Ky. 239. Humph. (Tenn.) 142. 
 
 See Nairin v. Kentucky Heating Co., 58. Anderson v. Hall, 48 Iowa, 
 
 27 Ky. Law Rep. 551, 86 S. W. 676. 346. 
 
 56. Chesapeake, O. & S. W. R. Co. 59. Skirving v. National Life Ins. 
 v. Reasor, 84 Ky. 369, 2 S. W. 599; Co., 8 C. C. A. 241, 59 Fed. 742, per 
 
 964
 
 Against Judgments ; General Considerations. 
 
 651 
 
 § 651. Enjoining process as between State and Federal courts. 
 — In accordance with the rule that as between State and Federal 
 courts of co-ordinate jurisdiction, the tribunal first acquiring 
 jurisdiction retains it, and that one of such courts cannot enjoin 
 the process of another, it has been held in Rhode Island that the 
 Supreme Court of that State cannot enjoin the United States 
 marshal from proceeding to a sale on execution under a decree in 
 equity of the Federal Circuit Court. 60 
 
 Caldwell, J. : " It does not appear 
 from the complaint and record in the 
 law case that the citizenship of the 
 assignors of these orders was such as 
 would have enabled them to main- 
 tain a suit thereon in the Circuit 
 Court, and it is urged that for this 
 reason the court rendering the judg- 
 ment was without jurisdiction, and 
 the judgment void. There are two 
 answers to this contention: The 
 bill does not challenge the jurisdic- 
 tion of the court rendering the judg- 
 ment; but if it did, it is well set- 
 tled that the judgments and decrees 
 of the United States courts rendered 
 upon personal service on the de- 
 fendant are binding until reversed, 
 though no jurisdiction be shown on 
 the record. If the record fails to 
 show the facts on which the jurisdic- 
 tion rests — as, for instance, that the 
 plaintiff and the defendants are citi- 
 zens of different States; or, where 
 the plaintiff sues as assignee, that 
 his assignor might have maintained 
 the suit — the judgment may be re- 
 versed for error upon a direct pro- 
 ceeding for that purpose, but it is 
 not void, and cannot be attacked col- 
 laterally. McCormick v. Sullivant, 
 10 Wheat. 192. 6 L. Ed. 300; Des 
 Moines Nav. & R. Co. v. Iowa Home- 
 stead Co., 123 U. S. 553, 8 Sup. Ct. 
 Rep. 217, 31 L. Ed. 202; In re Saw- 
 
 yer, 124 U. S. 200, 220, 221, 8 Sup. 
 Ct. Rep. 482, 31 L. Ed. 402." 
 
 Compare Broadis v. Broadis, 86 
 Fed. 951; Andes v. Millard, 70 Fed. 
 515. 
 
 GO. Chapin v. James, 11 R. I. 86, 
 per Potter, J.: "The suit was in 
 equity and might have been brought 
 either in the United States or the 
 State court; and it is a principle too 
 well settled to need authority that in 
 such a case the court which first ac- 
 quires jurisdiction is to retain it, 
 and is not to be interfered with by 
 any other co-ordinate court, and that 
 property in possession of officers of 
 the court is in possession of the 
 court, and cannot be levied on by of- 
 ficers under authority of any other 
 co-ordinate court, whether State or 
 Federal. Hagan v. Lucas, 10 Pet. 
 400, 9 Ed. 470; Wallace v. McCon- 
 nell, 13 Pet. 136, 10 L. Ed. 95; Smith 
 v. Mclver, Wheat. 532, 6 L Ed. 152; 
 Mallett v. Dexter, 1 Court. 178; 
 Buck v. Colbath, 3 Wall. 334, 341, 
 18 L. Ed. 257. ... As between 
 State and Federal courts, it is well 
 settled that as a general rule neither 
 can enjoin the process of the other. 
 Diggs v. Wolcott, 4 Cranch, 179, 2 L. 
 Ed. Ed. 587; McKim v. Voorhies, 7 
 Cranch, 279, 3 L. Ed. 342; Peck v. 
 Jenness. 7 How. (U. S.) 612, 625, 
 12 L. Ed. 841; City Bank v. Skelton, 
 
 965
 
 §§ 652, 653 Against Judgments; General Considerations. 
 
 § 652. Parties. — In an action to enjoin a judgment in eject 
 ment and to quiet the title of purchasers acquired under a trust 
 deed, it is not necessary to join as a defendant tin ir vendor, who 
 was also grantor in the deed of trust. 61 And in an action to enjoin 
 a judgment which has been assigned, the general rule is that the 
 assignee is the only necessary party defendant, as he took it sub- 
 ject to all the equities existing at the time of the assignment. 62 
 In an action brought to restrain the collection of the county attor- 
 ney's commissions on a judgment for a fine which the governor 
 has remitted, the State has no real inti rest and is not a proper 
 party defendant; but the county attorney and the sheriff charged 
 with the execution are the only proper parties defendant. 63 Gen- 
 erally, however, a judgment will not be perpetually enjoined, 
 unless all the parties in whose favor it was rendered are joined as 
 defendants and have answered. 64 In actions to enjoin the enforce- 
 ment of a judgment, as in other actions in equity, the complainant 
 must be the real party in interest. 65 And generally no person can 
 enjoin a judgment to which he is not a party or privy. 66 A 
 stranger to a judgment cannot enjoin it because of alleged error 
 in its rendition, nor have it reopened in order to afford him an 
 opportunity of showing error. 67 
 
 § 653. Parties continued. — It has before been shown that an 
 injunction to stay proceedings and process at law must go against 
 the parties at whose instance they were instituted, and not merely 
 against the sheriff or other officer acting therein in aid of a party. 65 
 The legal and equitable owners of a judgment may join in a bill 
 
 2 Blatchf. 26; Brasks v. Montgom- (U. S.) 313, 5 L. Ed. 97. See Gre- 
 
 ery. 23 La. Ann. 450; Kendall mand v. Gremand (La. 1005), 38 So. 
 
 v. Winsor. 6 R. I. 453; Coster v. 901. 
 
 Griswold, 4 Edw. Ch. 3G4, 377; Eng- 65. Dunn v. Baxter, 30 W. Va. 
 
 lish v. Miller, 2 Rich. Eq. 320." 672, 5 S. E. 214; Barr v. Clayton, 29 
 
 61. Johnson v. Christian, 128 U. W. Va. 256, 11 S. E. 899. See §§ 345- 
 S. 374, 9 S. Ct. 87, 32 L. Ed. 412. 347, ante. 
 
 62. Ellis v. Kerr (Tex.), 23 S. W. 66. Jordan v. Williams, 3 Rand. 
 1050. (Va.) 501. 
 
 63. Smith v. State (Tex.), 9 S. W. 67. Mayes v. Woodall, 35 Tex. 687. 
 274. See §§ 366, 367, ante. 68. Sections 366, 367, ante. 
 
 64. Marshall v. Beverley, 5 Wheat. 
 
 966
 
 Against Judgments; Geneeal Considerations. §654 
 
 to protect an execution lien, and if all the known parties in interest 
 are before the court the possible interest of other parties is not 
 a sufficient reason for refusing the relief sought. 69 It is a general 
 rule that a bill for injunction to restrain the execution of a judg- 
 ment is demurrable for defect of parties defendant, if the 
 judgment plaintiff is not made a defendant. An injunction will 
 not issue to restrain an execution sale of real estate in a foreign 
 State, and from prosecuting legal proceedings therein against its 
 owner for the collection of a debt alleged to be due defendants, 
 where it appears that judgment in the action has been rendered 
 and sale made thereunder to parties not before the court. An 
 administrator who has obtained an order to sell land to pay his 
 intestate's debt is a necessary party defendant in a suit by a per- 
 son claiming under a tax deed to enjoin tho commissioner ap- 
 pointed by the court from making the sale. 71 
 
 §G54. Defect of parties; effect of.— If an injunction be 
 obtained to stay proceedings on a judgment or decree, and the 
 plaintiff neglects for an unreasonable length of time to summon 
 other defendants, or to have an order of publication, or to amend 
 his bill, when he knows there are other necessary defendants, or 
 otherwise fails to expedite the suit, the court will, on motion of 
 the defendant, even before the answer is filed, dissolve the injunc- 
 tion. But if the defendant, whose judgment is enjoined, acquiesces 
 in it for years by making no motion to dissolve such injunction, 
 and then moves to dissolve it, even after the filing of his answer, 
 the court ought to refuse to dissolve the injunction on his motion, 
 
 69. Eaton v. Eaton, 68 Mich. 158, that the sheriff was a mere formal 
 ' .„ ,- party, who was not interested in the 
 70 Mexican Ore Co. v. Mexican slightest degree in the subject matter 
 Guadalupe Min. Co., 47 Fed. 351. of the suit, or the questions sought 
 The plaintiff brought suit in equity to have decided, and that the corn- 
 to restrain the sheriff from selling plaint was properly dismissed on de- 
 certain property to satisfy numerous murrer. Howell v. Foster, 122 111. 
 fee-bills and executions, issued upon 276, 13 N. E. 527. 
 ud'ments in favor of various par- 71. Bevill v. Smith, 25 Fla. 209 6 
 \t P heading the bar of the statute So. 62; Merritt v. Duffin 24 Fla 
 of limitations. The judgment plain- 320, 4 So. 806; Alston v. Rowles, 13 
 Jff s were not made parties. Held, Fla. 110; Scarlett v. Hicks, 13 Fla. 
 
 967
 
 §655 Against Judgments; General Considerations. 
 
 and continue it till the hearing, unless the evidence satisfy the 
 court that the case cannot be changed by any proof which the 
 plaintiff can produce, as where, for instance, a judgment or decree 
 estops the plaintiff from proving the material allegation in his 
 bill. But in such case the court should require the plaintiff to 
 expedite his cause, and as promptly as possible have it matured 
 at rules and set for hearing, under the penalty of a dissolution of 
 his injunction on motion, before the hearing. 72 
 
 § 655. Must be judgment or lien creditors. — An injunction 
 will not be issued to restrain the sheriff from paying money 
 realized on an execution sale to the judgment creditor, on the 
 ground that the judgment is collusive and fraudulent as against 
 plaintiffs, who are also creditors of the judgment debtor, where 
 they have not reduced their claim to judgment, and have no lien 
 on the property sold, or on the funds produced by the sale. 73 And 
 mere attaching creditors have not a standing in equity to restrain 
 a judgment creditor from proceeding by due course of law to 
 obtain satisfaction of his judgment. 74 
 
 314; Loring v. Wittich, 16 Fla. 495; 73. Kelly v. Herb, 157 Pa. St. 41, 
 
 Robinson v. Springfield Co., 21 Fla. 27 Atl. 559. And see Southard v. 
 
 203, 234. Benner, 72 N. Y. 424. In Smith v. 
 
 72. McCoy v. McCoy, 29 W. Va. Railroad Co., 99 U. S. 398, Swayne, 
 
 794, 2 S. E. 809, per Green, J.: "No J., said: "Nothing is better settled 
 
 party can ever be estopped or in any than that such a bill must be pre- 
 
 way prejudiced by any judgment or ceded by a judgment at law estab- 
 
 decree, if the record in the first suit lishing the measure and validity of 
 
 on its face shows that he had no op- complainant's demand for which he 
 
 portunity to be heard in opposition seeks satisfaction in chancery. Hen- 
 
 to the entry of such judgment. Poole dricks v. Rohinson, 2 Johns. Ch. 283; 
 
 v. Dilworth, 26 W. Va. 583; Corroth- Greenway v. Thomas, 14 111. 271; 
 
 ers v. Sargent, 20 W. Va. 356; Beck- Mizell v. Herbert, 20 Misc. 550; Gor- 
 
 with v. Thompson, 18 W. Va. 103; ton v. Massey, 12 Minn. 147; Skeele 
 
 Coville v. Gilman, 13 W. Va. 327; v. Stanwood, 33 Me. 307." 
 
 Western Mining Co. v. Virginia Coal 74. Artman v. Giles, 155 Pa. St. 
 
 Co., 10 W. Va. 250; Tracey v. Shu- 409, 26 Atl. 668, per Mitchell, J.: 
 
 mate, 22 W. Va. 509; Renick v. Lud- "It is conceded that this injunction 
 
 ington, 20 W. Va. 511; Haymond v. is without precedent in Pennsylvania. 
 
 Camden, 22 W. Va. 180; Stephens v. The complainants are of two classes 
 
 Brown, 24 W. Va. 234; Underwood — one mere simple contract creditors, 
 
 v. McVeigh, 23 Gratt. 409." with neither judgment nor lien; the 
 
 968
 
 Against Judgments; General Considerations. §656 
 
 § 656. Same subject; preferred liens. — Equity will not inter- 
 fere to impound property or tie up interests after an execution sale 
 thereof, in order to establish a lien thereon under attachment pro- 
 
 other, also without judgment, but 
 with such lien as they have obtained 
 by attachment, under the act of 1869. 
 As to the former, the overwhelming 
 weight of authority is against the as- 
 serted right. It is enough for us to 
 quote the deliberate opinion of Chan- 
 cellor Kent, in Wiggins v. Arm- 
 strong, 2 Johns. Ch. 144, where, after 
 stating frankly that his first impres- 
 sion was in favor of the jurisdiction 
 in equity, he concludes after exami- 
 nation of the cases that it could not 
 be sustained, and that there ought to 
 be no interference until the creditor 
 has established his title by judg- 
 ment. 'On the strength of settled 
 authorities ' he dismissed the bill. 
 The cases cited by appellant show 
 that this view has been followed with 
 great uniformity in nearly all the 
 States where the question has arisen. 
 The cases also show that the same 
 general rule applies to the second 
 class of the complainants — those who 
 have issued attachments. Excep- 
 tional cases may arise in which 
 creditors having a lien, even though 
 only by attachment on mesne process, 
 may have a standing for assistance 
 in equity, but the presumption is 
 against them, and for the same rea- 
 sons as in regard to the other class. 
 As a general rule they are left to 
 their rights and remedies at law. 
 The present is not such an excep- 
 tional case as would bring it within 
 our authorities. As already said, 
 there is no precedent upon the same 
 state of facts, but the general rule 
 that equity will not interfere between 
 debtor and creditor, but will leave 
 
 each to his rights and his remedies at 
 law, is settled beyond all question. 
 The cases in which equity has been 
 most frequently invoked are where 
 the creditor is alleged to be proceed- 
 ing under forms of law, but in viola- 
 tion of other parties' rights. Of this 
 class are Gilder v. Merwin, 6 Whart. 
 522; Riley v. Ellmaker, 6 Whart. 
 545; Reeser v. Johnson, 76 Pa. St. 
 313; Taylor's Appeal, 93 Pa. St. 21; 
 Davis v. Michener, 106 Pa. St. 395; 
 and Walker's Appeal, 112 Pa. St. 
 579, 4 Atl. 13. The only exception 
 so far recognized is in the case of a 
 levy upon a wife's separate property 
 for a debt of the husband. It was 
 held in Hunter's Appeal, 40 Pa. St. 
 194, that a bill would lie for an in- 
 junction in such a case, but the de- 
 cision was put upon the ground that 
 the statute expressly prohibits such 
 a levy, and the fact that the wife's 
 title was undisputed. In the subse- 
 quent case of Thompson's Appeal, 
 107 Pa. St. 559, an injunction was 
 awarded against repeated actions of 
 ejectment, brought by a sheriff's ven- 
 dee of the husband's title, but it was 
 again on the ground that such action 
 was contrary to the statute, the 
 wife's estate being undoubted, and 
 the ejectments not brought in good 
 faith. If there be any doubt or dis- 
 pute on the facts the creditor is en- 
 titled to levy and sell and proceed by 
 ejectment on the sheriff's deed. 
 Winch's Appeal, 61 Pa. St. 424. In 
 this case it is said by Agnew, J., that 
 the jurisdiction in equity ' was never 
 intended to be used to obstruct the 
 collection of debts.' And in Taylor's 
 
 969
 
 §657 Aoainst Judgments; General Conbitjebatiobs. 
 
 ceedings that have not even reached a judgment 11 And since, by 
 certain Maryland statutes and mortgages executed as thereby re- 
 quired, all the property of the Chesapeake and Ohio Canal Com- 
 pany became bound for the debts due by the company to the State, 
 subject only to the liens in favor of bondholders, it was held that a 
 judgment creditor who had no equity as against the State and 
 bondholders could be enjoined at their suit from levying on the 
 property of the company. 76 
 
 § G57. Enjoining judgment barred by laches. — A petition in 
 equity to enjoin the enforcement of a judgment of a justice of the 
 
 Appeal, rapra, the present eliief jus- 
 tice, after stating the rule that 
 equity will not intervene, but the 
 
 creditor will be allowed to pro* I 
 
 with his execution, and test the title 
 by ejectment, continues: 'It may 
 happen that the bona fide owner of 
 real estate is subject d to the incon- 
 venience of having hi-< property 
 levied on for the debt of one who is 
 not and has never been interested 
 therein; but such results cannot be 
 wholly avoided. Relief must be 
 sought, when they so occur, in speed- 
 ing the determination of the ques- 
 tions in dispute by such means as are 
 provided by law for that purpose.' 
 The only case at all analogous to the 
 present, in which a creditor not bav- 
 in;; a judgment has been permitted 
 to interfere with the debtor's disposi- 
 tion of his property, is Fowler v. 
 Kingsley, 87 Pa. St. 449. In that case 
 the bill averred that the debtor had 
 conveyed land to his son-in-law, by 
 collusion, to defraud his creditors, 
 and that the grantee was about to 
 convey to bona fide purchasers. The 
 debtor having died, the bill was sus- 
 tained upon the ground that the 
 creditor complainant, though with- 
 out a judgment, had an express stat- 
 
 utory lien, which gave him a stand- 
 ing. To sustain the present injunc- 
 tion would lie going a decided -t'|' 
 
 further than any step adjudicated, 
 
 and in opposition to established prin- 
 ciples." And see Martin v. Michael, 
 23 Mo. 50; Bigclow v. Andress, 31 
 III. 322. 
 
 75. Rollins v. Van Baalen, 56 
 Mich. 610, 23 N. W. 332, per ramp- 
 bell, J.: "The only cases cited from 
 our reports in which relief was 
 given to attaching creditors be- 
 fore judgment, were Hale v. Chan- 
 der, 3 Mich. 531; and Edson v. 
 Cumings, 52 Mich. 52. 17 N. W. G93. 
 Roth those cases were peculiar, and 
 the defendants in both failed to rais e 
 any objection by demurrer, but saw 
 fit to answer and go to hearing on 
 proofs. As to the general rule that 
 the creditor must first exhaust his 
 remedy at law before proceeding 
 against equitable interests, see Tyler 
 v. Peatt, 30 Mich. 63." 
 
 76. Brady v. Johnson, 75 Md. 445, 
 26 Atl. 49. And see Macalester's 
 Adm'r v. Maryland, 114 U. S. 598, 5 
 S. Ct. 1065, 29 L. Ed. 233; Guc v. 
 Canal Company, 24 How. (U. S.) 
 257, 16 L. Ed. 635. 
 
 970
 
 Against Judgments; General Considerations. § 657 
 
 peace, which does not aver facts from which it appears that the 
 plaintiff has a meritorious defense to the cause of action on which 
 the judgment is based, and that his failure to interpose such 
 defense in the justice court, and to avail himself of an appeal 
 or proceedings in error, was not due to any neglect or default on 
 his part, does not state a cause of action. 77 And a consent judg- 
 ment will not be declared void on the ground of fraud in an action 
 brought by the party against whom it was rendered nearly twenty 
 years afterwards, where the facts constituting the alleged fraud 
 were open to the observation of such party during the whole time. 78 
 Where defendants consent to waive all defenses, and confess judg- 
 ment on the strength of a verbal agreement that plaintiffs will 
 stay execution for a year, they cannot enjoin a sale under the 
 execution which plaintiffs levied before the end of the year, being 
 guilty of laches in standing by and permitting the execution to 
 be levied without moving the court to recall it. 79 
 
 77. Langley v. Ashe, 38 Neb. 53, 
 56 N. W. 720, per Ragan, C. : "So 
 far as the record shows, the now 
 complainant made no effort to defend 
 himself before the justice. He took 
 no steps to review in law courts the 
 errors alleged. In other words, he 
 has slighted the tribunals and rem- 
 edies provided by law for him, and 
 now says to allow the judgment to 
 be enforced would be contrary to 
 equity and good conscience. Let ua 
 see what he says about the defense 
 he has to the note sued before the 
 justice. ' The plaintiff further al- 
 leges that he had a good and lawful 
 defense in said action before said jus- 
 tice of the peace in this, to wit: 
 That he would then have alleged and 
 does now allege that he did not sign 
 the promissory note sued upon in 
 said action.' This will not do. The 
 question is not what he would have 
 alleged before the justice of the 
 peace, but what were the facts. This 
 averment would not entitle him to 
 
 equitable relief from the judgment, 
 had it been rendered against him 
 without any service upon him what- 
 ever. Janes v. Howell, 37 Neb. 320, 
 55 N. W. 965. If he did not sign this 
 note, why did he not appear before 
 the justice on January 23d, and say 
 so? If he was prevented from mak- 
 ing his defense, if he had one, by 
 accident, surprise, mistake or fraud, 
 his petition should so state. Scofield 
 v. Bank, 9 Neb. 316. The facts stated 
 do not constitute a cause of action." 
 
 78. City of Goliad v. Weisiger, 4 
 Tex. Civ. App. 653, 23 S. VV. 694. 
 And see Osborn v. Gehr, 29 Neb. 661. 
 
 79. Moulton v. Knapp, 85 Cal. 385, 
 24 Pac. 803, per Foote, C: "We 
 do not see, after the laches of the 
 plaintiffs in not taking advantage of 
 their adequate and speedy legal rem- 
 edy by motion, as heretofore stated, 
 they can be said to have made in 
 their complaint a sufficient showing 
 to entitle them to the injunction 
 which they obtained. And this view 
 
 971
 
 § 65S Against Judgments; General Considerations. 
 
 § 658. Sureties' suit to enjoin judgment. — Where the sureties 
 on the bond of a trustee for the benefit of creditors filed a bill in 
 equity to enjoin the enforcement against them of a judgment 
 allowing alleged fraudulent claims which had been obtained by a 
 pretended fraudulent conspiracy between the trustee and the 
 debtor and his wife, the injunction was denied on the ground that 
 the bill did not show that the sureties were in danger of being 
 injured, as they were responsible only for the amount received 
 by the trustee, and as the allowance of fraudulent claims dimin- 
 ished that amount, it could not increase but would rather lessen 
 the sureties' liability. 80 But a surety on an administrator's bond 
 has such an interest in setting a judgment against the adminis- 
 trator aside that he may file a bill to enjoin its enforcement against 
 the estate and for the purpose of having it declared void as against 
 himself. 81 And an executed agreement between a creditor and 
 his debtor for forbearance to sue in consideration of the payment 
 of an usurious premium operates in equity as a release of the 
 debtor's sureties, and if the creditor in such a case obtains judg- 
 ment against the sureties before they learn of such indulgence, 
 a court of equity, on a proper showing by the sureties, will per- 
 petually enjoin the execution of the judgment as against them. 82 
 A surety cannot, however, enjoin an assignee from enforcing a 
 judgment recovered by the principal against the surety, on the 
 ground that he, as surety, has paid a portion of a smaller judgment 
 against his principal, who is now insolvent, without offering to 
 pay the excess of that judgment over his claim. 83 
 
 of the matter is supported by Ede v. were discharged by reason of the 
 Hazen, 61 Cal. 360." See, also, Im- holder of the note having ex- 
 lay v. Carpentier, 14 Cal. 173. tended the time of payment to 
 
 80. Taylor v. Mallory, 76 Md. 1, the principal debtor, in consid- 
 23 Atl. 1008. eration of a usurious premium 
 
 81. Washington v. Barnes, 41 Ga. paid by him in advance, it not being 
 307. shown that they were prevented from 
 
 82. Armistead v. Ward. 2 Patton setting up this defense in the action 
 & H. (Va.) 504. In Vilas v. Jones, at law by any fraud or accident, or 
 1 N. Y. 274, it was held that after by the act of the adverse party, 
 judgment at law a bill in equity 83. Smith v. Smith, 75 Tex. 410, 
 could not be sustained on the ground 12 S. W. 678. 
 
 that the complainants, as sureties, 
 
 972
 
 Against Judgments ; Geneeal Consideeations. § 659 
 
 § 659. Same subject. — The enforcement of a judgment against 
 a surety of the judgment debtor should 'be enjoined if, after levy 
 on property enough of the debtor to satisfy the judgment, the levy 
 is abandoned on receipt by the sheriff of a check from the debtor, 84 
 for the judgment creditor, by authorizing the act of the sheriff 
 in releasing the levy, lost his remedy against the surety. 85 And 
 the sureties on a replevin bond may be granted an injunction 
 against the enforcement of the judgment in replevin where the 
 trial and judgment were had after the plaintiff died and without 
 a revivor or suggestion of death on the record.* 6 Where one is 
 induced to become indorser of a note by the payee's statements that 
 it is mere matter of form, and he will not be troubled about it, 
 and he makes no defense in the action brought on the note, and 
 judgment is obtained by default, he cannot claim that the judg- 
 ment is not binding on him; but if by similar statements made 
 after judgment, he is induced to abstain from securing himself, 
 when he might have easily done so, until the maker becomes in- 
 solvent, he is entitled to have an execution against himself per- 
 petually enjoined. 87 The rule that equity will not interfere with 
 a judgment to let in defenses which could and should have been 
 made in the suit at law, applies also to sureties. Thus, where 
 accommodation indorsers of a note filed a bill alleging that they 
 became so relying on the security furnished by certain land which 
 
 84. After recovery of judgment on judgment; that the withdrawal of the 
 
 a note against the maker, E., and the levy was by authority of N. ; and 
 
 indorser, F., and levy of execution that F. was an accommodation in- 
 
 under it on goods of E., E. gave dorser for E. of the note. Held, that 
 
 a check, signed by his attorney. N., the enforcement of the judgment 
 
 to the judgment creditor, and re- against F. should be restrained, 
 
 ceived from the creditor an assign- Flagler v. Newcombe, 13 N. Y. Supp. 
 
 ment of the judgment; and the sher- 299. 
 
 iff abandoned the levy, and returned 85. Voorhees v. Gros, 3 How. Pr. 
 
 the execution unsatisfied. Thereaf- (N. Y.) 262; Green v. Burke, 23 
 
 ter N. sought to collect it from F. Wend. (N. Y.) 501; Fraley v. Stein- 
 
 In an action by F. to restrain such metz, 22 Pa. St. 437; Ladd v. Blunt, 
 
 collection, there was evidence that 4 Mass. 402; Hunt v. Breading, 12 
 
 the money paid for the assignment of S. & R. (Pa.) 317, 14 Am. Dec. G65. 
 
 the judgment was advanced by N. for 86. McBrayer v. Jordan (Neb. 
 
 the benefit of E. ; that the property 1905), 103 N. W. 50. 
 
 levied on was enough to satisfy the 87. Roberts v. Miles, 12 Mich. 297. 
 
 973
 
 §600 Against Judgments; Gkxkk.u. Cofsidebations. 
 
 their principals had conveyed to the creditor as security for the 
 debt, and that the creditor had since reccnveyed the land to the 
 debtors who were both insolvent, and that the creditor had sued 
 both principals and sureties on the note without reference to the 
 land, it was held that the sureties were thereby put upon notice 
 that the creditor was not proceeding against the land, and that by 
 failing to ascertain the condition of the landed security, and by 
 permitting judgment to be rendered against them, they had by 
 their laches forfeited any right to injunctive relief. 88 And where 
 a creditor, who had been duly notified by a surety, failed to obtain 
 judgment and levy execution on the principal within a reasonable 
 time, it was held that the surety could not maintain injunction 
 against the attempted enforcement of the judgment against him- 
 self, as he had an adequate defense at law/ 9 
 
 § 6G0. Enjoining arbitrators' awards. — A court of equity will 
 not interfere in behalf of a party whose defeat in a submission 
 before arbitrators is in any essential degree attributable to his 
 own negligence; but it will set aside and enjoin the enforcement 
 of an award obtained by the fraud and perjury of the adverse 
 party to the submission. 90 Where, however, it appeared that all the 
 
 88. Smith v. Phinizy, 71 Ga. 641. position that equity will interfere 
 
 89. Martin v. Orr, 96 Ind. 27. The and set aside an award obtained by 
 surety on a claim bond, whose co- the fraud or misbehavior of one of 
 surety was dead, seeking to enjoin ex- the parties. Allen v. Ranney, 1 
 ecution on a judgment of forfeiture, Conn. 571; Brown v. Green, 7 Conn, 
 because the name of his principal, a 542; Duren v. Getchell, 55 Me. 241; 
 corporation resident in a distent Spurck v. Crook, 19 111. 415; Mul- 
 State, had been signed to the bond drow v. Norris, 2 Cal. 74; Peachy v. 
 without its authority, took no Bteps Rithcie, 4 Cal. 207; and see Wingate 
 for eight months to see whether the v. Haywood, 40 N. H. 437; Elkins v. 
 attorney claiming to act for the cor- Paige, 45 N. II. 310; George v. 
 poration really had authority to de- Johnson, 45 N. H. 456; Great Falls 
 fend against proceedings on the bond. Mfg. Co. v. Worster, 45 N. H. 110." 
 Held, that he was not entitled to an In Emerson v. Udall, 13 Vt. 484, Red- 
 injunction. Clegg v. Darragh, 63 field, J., said: "Partially or cor- 
 Tex. 357. ruption in the arbitrators, or fraud 
 
 90. Craft v. Thompson. 51 N. H. in the party obtaining the award are. 
 536 t per Foster, J.: "The following grounds of deiense exclusively of 
 are' among the cases sustaining the equitable cognizance — citing Wills v. 
 
 974
 
 Against Judgments; General Consideeations. §§661,662 
 
 defenses set up in a bill for an injunction to enjoin a sale under 
 a judgment entered on arbitrators' award had been made before 
 the arbitrators and decided against complainant, it was held that 
 such defenses were res ad judicata and the injunction would not 
 lie. 91 
 
 § 661. When bankrupt may enjoin execution. — Where a judg- 
 ment debtor has obtained his discharge as a 'bankrupt subsequent 
 to the judgment against him, he may restrain the suing out of an 
 execution on the judgment. 92 But one who seeks to enjoin the 
 execution sale of land on the ground that, since the judgment 
 was recovered, the debt has been discharged in bankruptcy, must 
 pay the debt as a condition of obtaining the relief sought, if it 
 appears that he fraudulently omitted this land from his schedule 
 of assets. 93 Again, where a bankrupt came into a State court on 
 the hearing of a bill filed by some of his creditors to set aside a 
 fraudulent conveyance of his land, and expressed a willingness 
 to pay such debts, and after his discharge in bankruptcy, and 
 after he had reacquired the land, promised to pay such creditors, 
 he is not entitled to have enjoined the sale ordered by the State 
 court; his only remedy, in case the decree was erroneous, being 
 by appeal. 94 
 
 § 662. To prevent multiplicity of suits. — Where, by stipula- 
 tion, several cases have gone to judgment in accordance with the 
 result of another which has been tried, and their validity depends 
 upon the same facts, and all the judgments are held by the same 
 person, the judgment debtor, in order to avoid a multiplicity of 
 actions and protect himself from the vexation and cost of numerous 
 executions and levies, may bring one suit in equity for a decree to 
 finally determine the matter in dispute in all the cases. 95 And 
 
 Maccarmick, 2 Wils. 148; Braddick 92. Peatross v. McLaughlin, 6 
 
 v. Thompson, 8 East, 344. See, also, Gratt. 64. 
 
 Hardin v. Brown, 27 Ga. 319; Boston 93. McMurtry v. Edgerly, 20 Neb. 
 
 Water Power Co. v. Gray, 6 Met. 131. 457, 30 N. W. 417. 
 
 See Great Southern F. P. H. Co. v. 94. Epperson v. Robertson, 91 
 
 McClain 4 Ohio Dee. 309. Tenn. 407, 19 S. W. 230. 
 
 91. Canada v. Barksdale, 84 Va. 95. Marshall v. Holmes, 141 U. S. 
 
 742, 6 S. E. 10. 589, 595, 12 S. Ct. 62, 35 L. Ed. 870. 
 
 975
 
 §663 Against Judgments; General Considerations. 
 
 where attachments have been issued against a debtor, ami notice! 
 of garnishment served upon a garnishee, and other creditors there* 
 after obtain separate judgments against the debtor, and levy execu- 
 tion! upon the goods in the hands oi the garnishee, the attaching 
 creditors, in an action to determine the priority of Liens and for 
 an injunction, may enjoin the defendants from selling under their 
 executions until the final determination of the case. In such a 
 case, an action for injunctive relief is the proper remedy to 
 prevent a multiplicity of suits, and determine in one suit the 
 priorities of the several liens. 98 
 
 §003. Preliminary injunctions; requisites. — A bill asking for 
 a pri liminary injunction to restrain a sale on execution against a 
 third person, must be sworn to on personal knowledge of facts that 
 will justify the injunction or the reason must be shewn for the 
 absence of such verification. 97 And the equity of an application 
 for an injunction being fully met by the answer and proofs, the 
 judgment of a court of law should not bo interfered with by a pre- 
 liminary injunction. 98 But a preliminary injunction on the appli- 
 cation of a judgment creditor restraining an execution sale of the 
 debtor's land under execution by another creditor, on the ground 
 that the latter's judgment was collusive, will be continued until 
 the hearing where it appears that the sale would seriously impair 
 complainant's right, and that the delay will not greatly injure the 
 defendant. 99 And where it appears doubtful from affidavits 
 whether goods on which it is attempted to levy a mortgage fi. fa. 
 are the goods covered by the mortgage, a preliminary injunction 
 against the levy should be continued until the final hearing. 1 
 Again, in an action to restrain the sale of land under execution 
 against plaintiff's grantor, the court should continue the restrain- 
 ing order pending final determination, and it is an abuse of dis- 
 
 96. Northfield Knife Co. v. Snap- 99. Bost v. Lassiter, 105 N. C. 
 leigh, 24 Neb. 635, 39 N. W. 788. 490, 11 S. E. 329. 
 
 97. Manistique Lumber Co. v. 1. Lanier v. Adams, 72 Ga. 145. 
 Lovejoy, 55 Mich. 189. 20 N. W. 899. And see Pierce v. Mayer, 13 N. Y. 
 
 98. Nibert v. Baghurst, 47 N. J. Supp. 343. 
 Eq. 201, 20 Atl. 252. 
 
 976
 
 Against Judgments ; General Considerations. §§ 664-5-6 
 
 cretion to dissolve it upon the filing of an answer denying the 
 allegations of the bill. 2 
 
 § 664. Refunding bond. — In Alabama, where a bill seeks to 
 enjoin and stay proceedings on a judgment at law, it is error to 
 dissolve the injunction on the denials of the answer without re- 
 quiring the execution of a refunding bond by the defendant, as 
 prescribed by the Code, but this error may be corrected on appeal, 
 by amending the decree so as to require the bond to be given, and 
 then the decree may be affirmed. 3 
 
 § 665. Requisites of bill to enjoin judgment; demurrer. — A 
 bill seeking to enjoin judgment and execution, which does not so 
 identify these as to make it appear what judgment and execution 
 are meant, and which does not limit the prayer for injunction to 
 any particular judgment and execution, is demurrable. 4 And a 
 complaint seeking to enjoin an execution on a judgment at law 
 is demurrable, unless it show that complainant has no full and 
 adequate remedy at law, by appeal, certiorari, or application to 
 the court which rendered the judgment, 5 or which does not show 
 that the failure to make the defense was not due to the negligence 
 of the one seeking the injunction. 6 
 
 § 666. Multifariousness. — In a suit against a sheriff, the mem- 
 bers of a partnership, and an individual, to enjoin the sale of 
 property under two different writs, the petition is not multifarious 
 when it shows that the same property was levied on by the same 
 officer at the same time, by virtue of two writs from the same 
 court, one of which was issued on a judgment in favor of the 
 individual who was also a member of the partnership, that both 
 
 2. Chace v. Jennings (Cal.), 28 510. 3 S. W. 439; Sanders v. Sanders, 
 
 Pac 681. 20 Ark - 61 °; Bel1 v - Greenwood, 21 
 
 3 Dexter v. Ohlander, 95 Ala. 467, Ark. 249; Stillwell v. Oliver, 35 Ark. 
 10 So. 527. 187- > Opie v. Clancy, 27 R. I. 42, 60 
 
 4 Adams v. White, 23 Fla. 352, 2 Atl. 635. 
 
 g^ 774 6. City of Port Pierre v. Hall (S. 
 
 5. Wingfield v. McLure, 48 Ark. D. 1905), 104 N. W. 470. 
 
 977 
 
 62
 
 §067 Aoainst Judgments; Gbnebal Considerations. 
 
 judgments were against plaintiff, and the grounds of enjoining 
 the levies under the write were the same. 1 
 
 § 007. Staying injunction judgment by appeal.— The general 
 rule is that a judgment containing an injunction ifl nol suspended 
 l,v an appeal;' but if the judgment is mandatory in ita effed and 
 commanda or permits Borne act to be done, its operation may be 
 stayed. 9 And where, in an action for an injunction to prevent 
 defendant from interfering with plaintiff^ connection with de- 
 fendant's water conduit, then- wae judgment for plaintiff, from 
 which defendant appealed and gave the required bond, it waa 
 held that the appeal stayed the operation of the judgment, bo thai 
 the defendant was not in contempl for preventing the connection. 10 
 
 7. Hammer v. Woods, 6 Tex. Civ. 
 App. 179, -it S. W. 042, per Neill, J.: 
 
 " There was no error in the court's 
 overruling appellant's special excep- 
 tion to appellee's original petition. In 
 our opinion there was more reason 
 for holding the petitions in Clegg v. 
 Varnell, 18 Tex. 304, and Bank v. 
 Bates, 76 Tex. 333, multifarioiM than 
 there' is in this case. There is not 
 any inflexible rule as to what consti- 
 tutes multifariousness which is fatal 
 to a suit on demurrer. Defendants 
 ought not to be put to inconvenience 
 and expense in litigating matters in 
 which they have no interest, and on 
 the other hand plaintiffs must not be 
 put to tne necessity of bringing two 
 suits instead of one." 
 
 8. §§ 400-406. 
 
 9. Hicks v. Michael, 15 Cal. 107. 
 
 10. Stewart v. Superior Court, 100 
 Cal. 543, 35 Pac. 156, 563, per Pater- 
 son, J. : " An appeal would in many 
 cases be useless, if the execution of 
 a decree which authorizes or permits 
 the plaintiff to use the property of 
 the defendant cannot be stayed dur- 
 ing the pendency of the appeal. 'Dur- 
 
 ing the pendency of the appeal the 
 court below could do no act which did 
 DOt h'ok to the holding of the sub- 
 jcrt of thf litigation just as it ex- 
 isted when tli*- decree was rendered.' 
 Dewey \. Superior Court, 81 Cal. 64, 
 68, 22 Pac. 333. In Bullion Beck & 
 Champion Min. Co. v. Eureka Hill 
 Mm. Co., 4 Utah, 151, 13 Pac. 174, 
 the court said: 'The taking of the 
 appeal and the giving of the super- 
 sedeas bond did not make void, or 
 nullify or suspend the judgment nor 
 the injunction contained therein, but 
 all affirmative action looking to the 
 execution of the terms of the decree 
 was suspended. Slaughterhouse Cases, 
 10 Wall. 273; Swift v. Shepard, 64 
 Cal. 423. But the lower court could 
 nevertheless take such action as was 
 necessary to hold the property intact, 
 and enforce a continuance of the 
 statu quo. However, the District 
 Court, during the pendency of the 
 appeal, could do no act which did not 
 look to the holding of the subject of 
 litigation just as it existed when the 
 decree was rendered. Hovey v. Mc- 
 Donald, 109 U. S. 161. In the exer- 
 
 978
 
 Against Judgments ; General Considerations. § 668 
 
 An independent suit to enjoin the prosecution of an action pend- 
 ing an appeal in another proceeding is improper, where a stay 
 could have been had on application to the court. u 
 
 § 668. Release of errors by enjoining judgment. — By force 
 of statute in Missouri any technical errors which existed in the 
 proceedings at law are released by enjoining the judgment. 12 And 
 a similar statute has existed in Illinois; but merely to enjoin the 
 execution does not operate as a release of errors in the action at 
 law prior to and including the judgment; 13 and an injunction to 
 stay the proceedings at law before judgment does not operate as 
 
 cise of its authority to preserve the 
 property, the District Court was em- 
 powered to punish as for contempt the 
 violation of any provision of the in- 
 junction, where the parties were not 
 allowing the property to remain as it 
 was at the date of the decree. Taking 
 all the evidence together, we do not 
 see that the appellants, at the time 
 they are charged with having violated 
 the injunction, occupied any other or 
 different place on the lode in question 
 than they did when the judgments 
 containing the injunction were ren- 
 dered, or that they were in manner 
 hindering or obstructing the respond- 
 ent company from working its lode. 
 This being so, an injunction could not 
 be used to eject them. And it was no 
 violation of the injunction for the ap- 
 pellants to remain as they were when 
 the injunction was granted.' . . • 
 An injunction though restrictive in 
 form, if it have the effect to com- 
 pel the performance of a substantive 
 act. is mandatory, and necessarily 
 contemplates a change in the relative 
 positions or rights of the parties 
 from those existing at the time the 
 injunction is granted or the decree is 
 entered. To hold that an appeal from 
 
 a judgment granting such an injunc- 
 tion does not stay the operation of 
 the judgment, would often render a 
 reversal of the judgment entirely in- 
 effectual — • a barren victory.' Dewey 
 v. Superior Court, 81 Cal. 64, 68, 22 
 Pac. 333; Mining Co. v. Fremont, 7 
 Cal. 132." 
 
 11. Hay ward v. Hood, 39 Hun (N. 
 Y), 596. 
 
 12. Hazeltine v. Reusch, 51 Mo. 
 50; Price v. Johnson Co., 15 Mo. 433. 
 The Tennessee statute of 1801 is to 
 the same effect. Henly v. Robertson, 
 4 Yerg. 172. And see in Mississippi, 
 Sevier v. Ross, 1 Freeman Ch. 519. 
 
 13. St. Louis, etc., R. Co. v. Todd, 
 40 111. 89. It is held that such stat- 
 utes do not apply to equitable pro- 
 ceedings nor to judgments which are 
 absolutely void, instead of being only 
 erroneous. San Juan, etc., Co. v. 
 Finch, 6 Col. 214; and does not apply 
 where the act enjoined is itself in 
 violation of law. Burge v. Burns, 1 
 Morris (Iowa), 287. And such a 
 statute does not preclude the judg- 
 ment debtor from attacking the judg- 
 ment for matters outside of the rec- 
 ord, as that it was procured by fraud. 
 Bass v. Nelms, 56 Miss. 502. 
 
 979
 
 §669 Against Judgments; General Considerations. 
 
 a release of errore, 14 and it can have such effect only as to th© 
 party obtaining the injunction. 15 In Indiana an early statute was 
 held to require that no injunction shall be granted to stay pro- 
 ceedings on a judgment at law unless there be indorsed on the bill 
 a release of all errors in the judgment to be enjoined. 1 ' In the 
 absence of statutory provisions an injunction of a judgment does 
 not uniformly operate as a release of preceding errors. 17 
 
 § 669. Effect of enjoining all proceedings. — The legal effect 
 of an order "that all proceedings be Stayed " for a definite time 
 is to stop further progress in the case at the point where the order 
 attaches, and a judgment entered while the order is in force ia 
 irregular and liable to be set aside. 18 The enjoining of a judg- 
 
 14. McConnel v. Ayrcs, 4 Til 210. 
 
 15. Taylor v. Ricar.ls, !) Ark. 37ft, 
 where it was held that an injunction 
 in favor of a garnishee did not re- 
 lease errors which may have occurred 
 in the proceeding! against the attach- 
 ment defendant. 
 
 16. Addleman v. Mormon, 7 
 Blackf. (Ind.) 31. 
 
 17. Gano v. White. 3 Ohio. 20. 
 
 18. Uhe v. Chicago, M. & St. P. 
 Ry. Co., 4 S. D. 505, 57 N. VV. 484, 
 per Kellam, J.: " It cannot be ques- 
 tioned that the order in terms pro- 
 hibited any further proceeding in the 
 case. The entry of judgment is a 
 proceeding— taking another step for- 
 ward. This is what is forbidden. 
 
 We are referred to no re- 
 ported case where the effect of such 
 an order is considered, and we find 
 very few. In Hempstead v. Hemp- 
 stead, 7 How. Pr. 8, the court held 
 that an 'order staying proceedings 
 for twenty days' prohibited the en- 
 try of judgment during that time. In 
 that case there had been no trial and 
 verdict, as in the case now before us, 
 and the opinion is relevant only so 
 
 far as it indicates the general scope 
 of inch an order. In Danner v. (ape- 
 hart. 41 Minn 294, 12 \. W. 100, the 
 court recognized tht- force of an or- 
 der staying all pn>. lingl to pre- 
 vent tin- <ntry of judgment on a re- 
 feree's report finding the facts and 
 directing judgment, and the in 
 larity of a judgment so entered. In 
 Ackerman v. Manufactui ing Co., 16 
 Wis. 1 •">■">. the court set aside a judg- 
 ment as irregular, because entered 
 while an order staying proceedings 
 was in force. The defendant was in 
 default, and plaintiff was entitled to 
 judgment before and when the stay 
 was obtained. Judge Payne says the 
 effect of the stay was to stop the pro- 
 ceedings in exactly the condition they 
 then were. These cases are not cited 
 as necessarily decisive of the particu- 
 lar question before us, because upon 
 dissimilar facts, but as bearing with 
 considerable directness upon the gen- 
 eral force of such an order. We are 
 unable to see any good reason why 
 such an order, general in its terms, 
 and expressly staying all proceedings, 
 should be held to mean less than it 
 
 980
 
 Against Judgments ; General Considerations. § 670 
 
 ment operates only upon the judgment creditor, and does not 
 suspend the judgment lien, but only stays the execution. And a 
 judgment, with stay of execution till the happening of a con- 
 tingency or until a future specified time, continues to be a lien 
 upon the defendant's property during the stay. 19 And a sheriff 
 holding a writ of execution which has been enjoined, may go on 
 after the injunction is dissolved and complete the suspended pro- 
 ceedings. 20 But if the judgment creditor is restrained from all 
 proceedings on his judgment at law, he is restrained also from 
 proceedings in equity to enforce it. 21 When a sheriff is enjoined 
 from proceeding with an execution, it is not impaired or the levy 
 destroyed, and on dissolution of the injunction he may complete 
 the proceedings begun under the execution. 22 
 
 § 670. Effect of enjoining execution on statute of limitations. 
 — Equity will regard a judgment debtor, applying for an injunc- 
 tion to restrain the execution of the judgment, as consenting that 
 if the injunction be improvidently granted, he will put his adver- 
 sary in the same condition he was at the time it was granted, and, 
 therefore, if while an execution has been unjustly restrained the 
 judgment has been barred at law by the statute of limitations, 
 equity will furnish a remedy by enjoining the judgment defendant 
 from pleading such statute. 23 The provision of the Colorado stat- 
 ute concerning liens on realty, and suspending the running of the 
 statute when issue of execution is restrained by injunction, applies 
 to a suspension of such issue by supersedeas on appeal. 24 
 
 plainly says. . . . Entertaining 22. Knox v. Randall, 24 Minn. 479. 
 
 these views with great confidence in 23. Marshall v. Minter, 43 Miss, 
 
 their correctness, we adhere to our 666. And see Sugg v. Thrasher, 30 
 
 former opinion that the fair and le- Miss. 135; Work v. Harper, 31 Miss, 
 
 gal effect of the stay was to forbid 107; Wilkinson v. Flowers, 37 Miss, 
 
 the entry of judgment during its con- 581. That an injunction does not in 
 
 tinuance in force." itself stop the running of acts of 
 
 19. Anderson v. Tydings, 8 Md. limitation, see Kilpatrick v. Byrne, 
 427. 25 Miss. 571; Robertson v. Alford, 
 
 20. Knox v. Randall, 24 Minn. 479. 21 Miss. 509. 
 
 See, also, Lamorere v. Cox, 32 La. 24. Gottlieb v. Thatcher, 151 U. 
 
 Ann. 246. S. 271, 280, 14 S. Ct. 319, 38 L. Ed. 
 
 21. Little ▼. Price, 1 Md. Ch. 182. 157. And see § 46, ante. 
 
 981
 
 §071 Against Judgments; Gbnebal Considerations. 
 
 § G71. Miscellaneous cases.— An injunction will lie to restrain 
 the issuing of a writ of fieri facias on a judgment against the city 
 of New Orleans, as the issuance of such a writ against the city is 
 prohibited by statute. 26 And a judgment creditor who accepts a 
 warrant on the treasury of New Orleans which, when paid, is to 
 operate as an extinguishment of the judgment, will be restrained 
 from issuing an execution to enforce the judgment, if he has failed 
 to return the warrant. 26 Again, where an individual obtained 
 judgment on a bond which was claimed as the property of the 
 State of Georgia, under an act of confiscation of British debts, an 
 in junction was granted in favor of the State to stay tho money in 
 the hands of the marshal until it was adjudged to whom the bond 
 (belonged. 27 And where an affidavit of illegality was filed to an 
 execution, and the issue was pending and the case and levy were 
 dismissed for want of prosecution, the plaintiff was enjoined from 
 proceeding with the levy in defiance of the judgment of the 
 court. 2S Where proceedings In error are taken to reverse a judg- 
 ment, and without any notice to the sheriff of such proceedings, 
 application is made for an injunction to restrain him from selling 
 certain personal property seized upon an execution illegally issued, 
 a denial of the injunction will not be reversed on appeal, on tho 
 ground that the sheriff should not be subjected to the vexation and 
 costs of a suit without notice and an opportunity for inquiry. 29 
 
 25. New Orleans v. RulefT, 23 La. 28. Scogin v. Beall, 50 Ga. 88. And 
 Ann. 708. And see New Orleans v. see the same principle involved in 
 Morris, 105 U. S. 600, 2G L. Ed. Patterson v. Gordon, 3 Tenn. Ch. 18, 
 1184, where an execution sale of where an appeal was prosecuted to a 
 water-works stock belonging to the judgment against the petitioner Pat- 
 city was enjoined because it was terson after the service of an injunc- 
 exempt. tion restraining all proceedings, and 
 
 26. New Orleans v. Smith, 24 La. the judgment on appeal was there- 
 Ann. 405. fore perpetually enjoined. 
 
 27. Georgia v. Braislford, 2 Dal- 29. Jaedicke v. Patrie, 15 Kan. 
 las, 402. 287. 
 
 982
 
 Against Judgments; Defenses at Law. § 671a 
 
 CHAPTER XXII. 
 
 Against Judgments; Defenses at Law. 
 
 Section 671a. Enjoining judgment-Defense available at law-General rule. 
 671b. Same subject continued. 
 
 672. Enjoining judgment where defense not available at law. 
 
 673. Judgments enjoined only on equitable grounds. 
 
 674. Equitable defense as ground for injunction. 
 
 675. Bills for new trials. 
 
 676. Same subject— New evidence. 
 
 677. Defense essential though judgment erroneous. 
 
 678. Same subject — Meritorious defense. 
 
 679. Judgment not enjoined where defense has been tried at law. 
 
 680. Same subject. 
 
 681. Facts showing defense must be pleaded. 
 
 682. Diligence in learning of and making defense. 
 
 683. Negligence as bar to injunction. 
 
 684. Where defendant was ignorant of defense and not negligent. 
 
 685. Judgment not enjoined where defendant's attorney negligent. 
 
 686. Injunction barred by defendant's negligence. 
 
 Section 671a. Enjoining judgment; defense available at law; 
 general rule— A court of equity will not grant relief by injunc- 
 tion against a judgment on the ground of matters which were 
 available, in the action at law in which the judgment was ren- 
 dered, as a defense thereto. 1 So in a recent case in Rhode Island 
 
 1 United Stotes.-Tornvkin* v. tfarwas.-Howard v. Eddy, 56 Kan. 
 
 Drennen, 56 Fed. 694, 6 C. C. A. 83. 498, 43 Pac. 1133. _^ 
 
 4Ja6ama.-K.irby v. Kirby, 70 Ala. Kentucky. -Morzn v. Woodward, 8 
 
 B. Mon. 537; Morrison's Exr. v. 
 
 Fiorida.-Peacock v. Feaster (Fla. Hart, 2 Bibb. 4, 4 Am. Dec. 663. 
 1906) 42 So 889; Michel v. Sammis, Lotmiana.-Mahan v. Accommoda- 
 
 15 Fla 308 " tion Bank ' 26 La " Ann ' 34 ' 
 
 Georaia.-Brown v. Wilson, 56 Ga. Afaine.-Titcomb v. Potter, 11 Me. 
 
 218 
 
 "/iiinois.-Carney v. Marseilles, 136 Maryland. -Ahem v. Fink, 64 Md. 
 
 Ill 401, 26 N. E. 491; Scott v. 161, 3 Atl. 32. 
 
 Whillow 20 111. 310; Spraker v. Massachuset fs.-Saunders ^v .Hunt- 
 
 Bartlett,' 73 111. App. 522. ington, 166 Mass •* «.* * 127 ' 
 
 /ndtana.-Burke v. Pinnell, 93 Barker v. Walah, 14 Allen, 172. 
 
 Ind. 540. 
 
 983
 
 § 67lb Against Judgments; Defenses at Law. 
 
 it was decided that there is no equity in a bill to restrain the 
 enforcement of a judgment where the reasons assigned therein 
 for such relief were available to the complainant in the original 
 suit of trover or in the action of debt on the judgment and there 
 is no adequate reason assigned for his neglect to urge these de- 
 fenses at the proper time. 2 So to render a want or failure of con- 
 sideration a ground for an injunction to restrain the enforcement 
 of a judgment it is decided tha.t it must have been unavailable in 
 the action at law as a defense and that if it was so available the 
 injunction will not be granted. 3 But want or failure of considera- 
 tion is aground for an injunction against a judgment where such 
 defense was not available in the action at law or defendant was 
 prevented by fraud of plaintiff from availing himself thereof.* 
 
 § 671b. Same subject continued. — As a general rula it is no 
 ground for granting an injunction against a judgment that the 
 claim of the plaintiff upon which the judgment was founded was 
 not sufficient to support it as this is a matter which should have 
 
 Minnesota. — Fowler v. Atkinson, 6 
 Minn. 503. 
 
 Nebraska. — Smith v. Asliton, 14 
 Neb. 426, 16 N. VV. 434. 
 
 New Jersey. — Phillips v. Pullen, 45 
 N. J. Eq. 5, 16 Atl. 9. 
 
 Tennessee. — Estis v. Patton, 3 
 Yerg. 382. 
 
 Texas. — Bailey v. Boystun (Civ. 
 App.), 23 S. W. 281. 
 
 Virginia. — Farmers' Bank v. Van- 
 meter. 4 Rand. 553. 
 
 Washington. — Wingard v. Jame- 
 son, 2 Wash. T. 402, 7 Pac. 863. 
 
 West Virginia. — Black v. Smith, 13 
 W. Va. 780. 
 
 2. Tyrrell v. Wood (R. I. 1908), 68 
 Atl. 545. 
 
 3. Alabama. — Howell v. Motes, 54 
 Ala. 1; Isbell v. Morris, 1 Stew. & 
 P. 31. 
 
 Georgia.— Allen v. Thornton, 51 
 Ga. 594. 
 
 Indiana. — Ricker v. Piatt, 48 Ind. 
 73; Hardy v. Stone, 23 Ind. 597. 
 
 Louisiana. — Butman v. Forshay, 21 
 La. Ann. 165. 
 
 Wisconsin. — Marsh v. Edgerton, 1 
 Chand. 198, 2 Pin. 230. 
 
 4. United Btates.— Skillern v. May, 
 4 Cranch, 137, 2 L. Ed. 574. 
 
 Alabama. — McMillion v. Pigg, S 
 Stew. 165. 
 
 Arkansas. — Pelham v. Floyd, 9 
 Ark. 530. 
 
 Georgia.— Odell v. Reed, 54 Ga. 
 142. 
 
 Indiana. — Gillett v. Sullivan, 127 
 Ind. 327, 26 N. E. 827. 
 
 Kentucky. — Waters v. Mattingly, 1 ( 
 Bibb. 244, 4 Am. Dec. 631. 
 
 ilissouri. — Bassett v. Henry, 34 
 Mo. App. 548. 
 
 West Virginia. — Vanscoy v. 
 
 Stinchcomb, 29 W. Va. 263, 11 S. E. 
 927. 
 
 984
 
 Against Judgments; Defenses at Law. 
 
 671b 
 
 set up as a defense to the action at law. 5 This principle has been 
 applied in the case of a judgment against a garnishee who alleges 
 merely that he owes nothing to the principal defendant; 6 where 
 it is claimed that the judgment in a foreclosure suit embraces sums 
 not due, 7 and where it is alleged that there was usury in the note 
 upon which a judgment was rendered. 8 And as a general rule the 
 payment or discharge of the claim upon which the judgment is 
 founded is no ground for an injunction against its enforcement, 
 as this is a matter of defense which should have been set up in 
 the action at law. 9 And where payment of a judgment could have 
 been set up as a defense to an action at law on the judgment, the 
 enforcement of such judgment will not be enjoined. 10 Where, how- 
 ever it appears that the fact of payment or satisfaction could not 
 have been set up as a defense in the action in which the judgment 
 was rendered, it has been decided that the enforcement of such 
 judgment may be enjoined. 11 
 
 5. Alabama. — Chandler v. Craw- 
 lord, 7 Ala. 506. 
 
 Georgia. — Gibson v. Cohen, 85 Ga. 
 850, 11 S. E. 141. 
 
 Indiana. — De Haven v. Covalt, 83 
 Ind. 344. 
 
 Kentucky.— Thompson v. Ware, 8 
 B. Mon. 26. 
 
 Louisiana.— Sartorius v. Dawson, 
 13 La. Ann. 111. 
 
 Mississippi. — Fanning v. Farmers 
 & Merchants' Bank, 8 Sm. 4 M. 139. 
 
 Neio York.— See Young v. Bearda- 
 ley, 11 Paige, 93. 
 
 North Carolina. — Peace v. Nail- 
 ing, 16 N. C. 89. 
 
 6. Kilson v. Cohen, 85 Ga. 850, 11 
 S. E. 141. 
 
 7. De Haven v. Covalt, 83 Ind. 344. 
 
 8. Thompson v. Ware, 8 B. Mon. 
 (Ky.) 26. 
 
 9. United States. — Gear v. Parish, 
 5 How. 168, 12 L. Ed. 100. 
 
 Illinois.— See Finley v. Thayer, 42 
 111. 350. 
 
 Maryland. — Hall v. McCann, 51 
 Md. 345. 
 
 Tennessee. — Palmer v. Malone, 1 
 Heisk. 549. 
 
 Texas. — Alexander v. Baylor, 20 
 Tex. 560. 
 
 10. District of Columbia. — Rider 
 v. Morsell, 3 MacA. (D. C.) 186. 
 
 Illinois. — Harding v. Hawkins, 141 
 111. 572, 31 N. E. 307, 33 Am. St. Rep. 
 347. 
 
 Indiana. — Hunt v. Lane, 9 Ind. 248. 
 
 Maryland. — Webster v. Hardesty, 
 28 Md. 592. 
 
 Mississippi. — Nevit v. Hamer, 5 
 Sm. & M. (Miss.) 145. 
 
 Missouri. — Yautis v. Burdett, 4 
 Mo. 4. 
 
 New York. — Gardner v. Lee & Co.'s 
 Bank, 11 Barb. (N. Y.) 558. 
 
 South Carolina. — Sullivan v. Shell, 
 36 S. C. 578, 15 S. E. 722, 31 Am. 
 St. Rep. 894. 
 
 11. Hawkins v. Harding, 37 111. 
 App. 564. 
 
 985
 
 §672 Against .J i ik.mf.nts ; Diiknsks at Law. 
 
 § 672. Enjoining judgment where defense not available at 
 law. — A court of equity will not enjoin the enforcement of a judg- 
 ment, except upon some distinct equitable ground which neither 
 was nor could have been set up as a defense to the action at law. 
 Where parties have had their day in court, they must abide the 
 result, as an issue once tried in a court of law is nevt r retried by 
 a court of equity. 12 But equity will restrain proceedings upon 
 a verdict, or the collection of a judgment where it is made to 
 appear, by facts of which the party could not avail himself as a 
 defense because they occurred after verdict, that the enforcement 
 of the judgment would be contrary to equity and good conscience. 13 
 So an insolvent debtor, who has had no opportunity to plead his 
 final discharge under the insolvent law, may enjoin his judgment 
 creditor and the sheriff from proceeding with the execution under 
 the judgment. 14 And when, through false representations to the 
 county judge, an entire claim against a decedent's estate was 
 allowed, in the absence of the administrator, and without notice 
 to him, and he did not learn of the allowance until after the time 
 
 12. Bachelder v. Bean, 7G Me. 370. 
 See §§ 671a, 671b, herein. 
 
 13. New York, etc., R. Co. v. Haws, 
 56 N. Y. 175, per Grover, J.: "The 
 plaintiff could not set up this demand 
 of the money by Mallady as a defense 
 to the action brought by Haws, be* 
 cause the fact did not occur until af- 
 ter the verdict was rendered. The 
 plaintiff was therefore guilty of no 
 neglect or laches in not setting up 
 that defense — facts after the verdict 
 occurred, rendering the plaintiff lia- 
 ble to deliver the identical money to 
 Mallady for which Haws had recov- 
 ered a verdict, payment of which to 
 Haws would have been no defense to 
 the claim of Mallady. This consti- 
 tutes the plaintiff's equity to restrain 
 Haws from enforcing his claim." 
 And see North Chicago Rolling Mill 
 Co. v. St. Louis Ore & Steel Co., 152 
 U. S. 596, 14 S. Ct. 710. 
 
 14. Starr v. Heckart, 32 Md. 272; 
 Carrington v Holahird, 17 Sonn. 530, 
 538. But see Katz v. Moore, 13 Md. 
 566, where it is held that execution 
 will not be sustained on the ground 
 that the debtor had been discharged 
 under the insolvent law prior to the 
 judgment. The audita querela was 
 an equitable action invented for the 
 purpose of relieving a defendant 
 against a judgment or execution, 
 where he had a good defense but no 
 opportunity of making it; but this 
 equitable action gave way to the sum- 
 mary remedy by motion. Job v. Wal- 
 ker, 3 Md. 129; Smock v. Dade, 5 
 Rand. (Va.) 639; Lister v. Mundell, 
 1 Bos. & Pul. 428. 
 
 Compare Saunders v. Huntington, 
 166 Mass. 96, 44 N. E. 127, holding 
 otherwise where the defense could 
 have been set up in the action at law. 
 
 986
 
 Against Judgments; Defenses at Law. 
 
 673 
 
 for appeal had elapsed, and had a good defense to a part of it, he 
 was held entitled to enjoin the enforcement of the allowance. 15 
 
 § 673. Judgments enjoined only on equitable grounds. — 
 Where a court of equity proceeds to enjoin a judgment at law, it 
 does so only on equitable considerations. If the judgment is not 
 inequitable as between the parties, however irregular the proceed- 
 ings may have been, equity will not prevent its enforcement. 16 
 So the collection of a judgment at law, fairly and regularly recov- 
 ered by a purchaser in good faith for full value against a school 
 district on its treasury warrants, will not be enjoined, even if 
 there was a good legal defense to the action, when the considera- 
 tion was received and is still being enjoyed, and the district officers 
 declined to interpose technical defenses because of the moral obli- 
 gation to pay. 17 And an injunction will not lie to restrain the 
 
 15. Dundas v. Crisman, 25 Neb. 
 495, 41 N. W. 449. 
 
 16. Hartford Fire Ins. Co. v. 
 Meyer, 30 Neb. 135, 46 N. W. 292, per 
 Maxwell, J.: "It must appear that 
 on a re-examination and retrial of 
 the cause, the result would probably 
 be different. Bradley v. Richardson, 
 23 Vt. 720; Tomkins v. Tomkins, 11 
 N. J. Eq. 512; Reeves v. Cooper, 12 
 N. J. Eq. 223; Dawson v. Merchants 
 Bank, 30 Ga. 664; Saunders v. Al- 
 britton, 37 Ala. 716; Way v. Lamb, 
 15 Iowa, 79; Stokes v. Knarr, 11 
 Wis. 389; Sauer v. Kansas, 69 Mo. 
 46; Lemon v. Sweeney, 6 111. App. 
 507. Plaintiff and defendant, attor- 
 neys, agreed to defend a township in 
 suits against it on its bonds, on con- 
 dition that, if at any time, the bonds 
 were adjudged valid, the fee was to 
 be refunded. A judgment was ren- 
 dered declaring the bonds invalid, and 
 plaintiff collected the fee, but refused 
 to pay defendant any part of it. In 
 a suit by the latter for his half of the 
 fee, the plaintiff set up his liability 
 
 to return the money in case the 
 bonds were held valid on appeal, 
 which defense was disallowed and de- 
 fendant obtained judgment. After- 
 wards the United States Supreme 
 Court held the bonds valid. Held, 
 that the enforcement of the judgment 
 against plaintiff would be uncon- 
 scionable, and he could enjoin its ex- 
 ecution. Bassett v. Henry, 34 Mo. 
 App. 548." 
 
 17. Skirving v. Nat. Life Ins. Co., 
 59 Fed. 742, per Caldwell, J.: 
 " Where it was sought to enjoin a 
 county from paying county orders, is- 
 sued for a claim less meritorious than 
 the claim upon which this judgment 
 was rendered, the Supreme Court of 
 Ohio said : ' This court ought not to 
 interpose by injunction to save the 
 county from the payment of a de- 
 mand having the sanction of moral 
 obligation.' Commissioners v. Hunt, 
 5 Ohio St. 488; Newcomb v. Horton, 
 18 Wis. 566. Certainly, after a judg- 
 ment has been regularly obtained 
 upon such a demand, it would be con- 
 
 987
 
 § 674 Against Judgments ; Defenses at Law. 
 
 collection of a judgment, whatever the misconduct of the prevail- 
 ing party, unless it affirmatively appears that the judgment itself 
 was wrong, so that it would be against good conscience to have it 
 enforced. 18 
 
 § 674. Equitable defense as ground for injunction. — "Where 
 the matter alleged as the ground for an injunction was purely an 
 equitable defense of which the defendant could nol avail himself 
 in the action at law, it is then decided that an injunction against 
 the enforcement of the judgment may be granted. 11 So where 
 an agent, who has loaned money for a guardian, and taken a deed 
 of trust as security, agrees with the purchasers of a portion of 
 
 trary to any man's sense of equity 
 and good conscience to enjoin its col 
 lection upon the complaint of a sin- 
 gle discontented taxpayer. The ap- 
 pellant cites and relies on Cranipton 
 v. Zabriskie, 101 U. S. 601, 26 L. 11 
 1070, but that case is not in point. 
 That was a suit ' brought by other 
 taxpayers of the county to compel 
 the board to reconvey the land and 
 Crampton to return the bonds, and 
 enjoin the prosecution of the action 
 to enforce their payment.' It will be 
 observed that no judgment had been 
 recovered in that case, and the bill 
 was filed to compel the board to re- 
 convey the land which was the con- 
 sideration for the bonds upon which 
 suit had been brought. The bill did 
 not seek to keep the consideration re- 
 ceived for the bonds, and repudiate 
 the bonds, but its object was to can- 
 cel the contract, return the considera- 
 tion received for the bonds, and then 
 cancel them. In this suit the appel- 
 lant seeks to have the school district 
 keep the consideration it received for 
 the orders, and to enjoin, at his own 
 suit, the payment of the judgment 
 rendered upon the orders." 
 
 18. Poor v. Tuston, 53 Kan. 86, 35 
 
 Pac. 792. per Allen, J.: "The case 
 mi Ml i"i- hearing on September 11, 
 L8&9 ; ,t Chapman. The attorneys 
 agreed to continue it until October 6, 
 .it Herrington, and forwarded the 
 agreement by mail to the justice at 
 Chapman, At the time the case was 
 set for hearing, the plaintiff ap- 
 peared and took judgment. The stip- 
 ulation to continue did not reach the 
 justice until the next day. The peti- 
 tion for injunction in this case is fa- 
 tally defective because it fails to 
 show, even by the most strained in- 
 ference, that the plaintiffs had a 
 valid defense in the action before the 
 justice. Muse v. Wafer, 29 Kan. 
 279. And see Railway Company v. 
 Simpson, 11 Kan. 494." 
 
 19. United States. — Johnson v. 
 Christian, 128 U. S. 374, 9 S. Ct. 87, 
 32 L. Ed. 412; Hawkins v. Mills, 49 
 Fed. 506, 1 C. C. A. 339. 
 
 Georgia. — Fannin v. Thomasson, 45 
 Ga. 533. 
 
 Illinois.— Weaver v. Poyer, 79 111. 
 417. 
 
 New Jersey. — Sanders v. Wagner, 
 32 N. J. Eq. 506. 
 
 Tennessee. — Newborn v. Glass, 5 
 Humph. 520. 
 
 988
 
 Against Judgments ; Defenses at Law. § 675 
 
 the land covered by the deed, that upon payment to him or the 
 guardian he will release the trust deed, equity will enjoin a judg- 
 ment in ejectment recovered by the ward, after coming of age, 
 on a title acquired by purchase under the trust deed, the above 
 agreement constituting an equitable defense, which could not have 
 been set up at law. 20 
 
 § 675. Bills for new trials. — A bill for a new trial is watched 
 by equity with extreme jealousy, and will not be entertained ex- 
 cept where the complainant could not make his defense at law, as 
 in the case of complicated accounts; or where the adverse party 
 has obtained a verdict by means of fraud, or has improperly got 
 possession of something which gave him an unconscionable ad- 
 vantage at law. 21 Under the constitutional and Code provision 
 that no fact tried by a jury shall be retried except at common law; 
 and declaring that no more than one new trial shall be granted by 
 a justice in any case, it is decided that equity cannot enjoin and 
 reverse a judgment rendered on a verdict in the second trial of a 
 cause in a justice's court, the issue being one of law and fact, 
 namely, whether a judgment pleaded by the defendant as a set-off, 
 was assigned to him only colorably, to defeat plaintiff's exemp- 
 tions. 22 Until the practice of granting new trials in courts of law 
 was introduced, there was often good reason why the enforcement 
 
 20. Johnson v. Christian, 128 U. 30 W. Va. 532, 542, 4 S. E. 782; 
 S. 374, 9 S. Ct. 84, 32 L. Ed. 412, per Slack v. Wood, 9 Gratt. (Va.) 40; 
 Lamar, J.: " There is nothing in the Allen v. Hamilton, 9 Gratt. (Va.) 
 case to except it from the general 257; Alford v. Moore, 15 W. Va. 597. 
 rule that in the United States courts 22. Ensign Mfg. Co. v. Carroll. 30 
 a recovery in ejectment can be had W. Va. 532, 4 S. E. 782, per Woods, 
 upon the strict legal title only, and J.: "The circumstances bring this 
 that a court of law will not uphold case precisely within the rulings of 
 or enforce an equitable title to land this court in Barlow v. Daniels, 25 
 as a defense in such action. Bagnell W. Va. 512; Hickman v. Baltimore 
 v. Broderick, 13 Pet. 436. 450, 10 L. & O. R. Co., 30 W. Va. 296, 4 S. E. 
 Ed. 235; Hooper v. Scheimer, 23 654, 7 S. E. 455; Fouse v. Vander- 
 How. 235, 16 L. Ed. 452; Foster v. vort, 30 W. Va. 327, 4 S. E. 298. 
 Mora. 98 U. S. 425, 25 L. Ed. 191; ... In regard to civil suits be- 
 Langdon v. Sherwood, 124 U. S. 74, fore a justice, the inhibition con- 
 85 8 S. Ct. 429, 31 L. Ed. 344." tained in the Constitution as con- 
 
 21. Ensign Manfg. Co. v. Carroll. strued by this court in the cases just 
 
 989
 
 §670 
 
 Against Judgments; Defensxb at Law. 
 
 of judgments at law should be enjoined, but as new trials are now 
 quite freely accorded, a resort to injunctive relief from judgments 
 is not so often necessary. 23 
 
 § 67G. Same subject; new evidence. — A court of equity will 
 entertain a suit to enjoin the enforcement of a judgment at law, 
 and t<» afford a new trial, when the bill alleges that the judgment 
 was obtained by the use of a forged letter as evidence; that com- 
 plainant was ignorant of the existence of such evidence; before 
 the trial, and did not discover its falsity until after the rendition 
 of judgment and the lapse of the time in which a motion for in w 
 trial could have been made; and that she was guilty of no laches 
 in failing to show or discover the forgery of the letter. 2 * 
 
 cited necessarily precludes any other 
 court from retrying the matter deter- 
 mined in the trial before the justice; 
 nor will a party to any such ended 
 controversy be permitted by any 
 change in the form of bis remedy, or 
 of the character of the forum to 
 which he resorts, to retry the cause 
 or review the conclusions of law or 
 fact so settled. Meeke v. YYindon, 
 10 W. Va. ISO. If a court of equity 
 can review, retry and reverse BUch a 
 judgment, upon the same matters of 
 law and fact therein decided, then 
 said constitutional and statutory pro- 
 hibitions as well as the construction 
 placed thereon by the court, would 
 become nugatory." 
 
 23. Crim v. Handley, 04 U. S. 652, 
 658, 24 L. Ed. 216; Railroad Com- 
 pany v. Neal. 1 Wood, 353. In Rat- 
 liff v. Stretch, 130 Ind. 282, 30 N. 
 E. 30, Miller, J., said : " The liberal 
 provisions of our code, by which both 
 legal and equitable defenses may be 
 interposed on a trial, and new trials 
 granted for misconduct of the jury or 
 prevailing party, or on account of ac- 
 cident or surprise, have by affording 
 an equally efficient and more expedi- 
 
 tious method of affording relief, 
 greatly abridged the province of 
 equity in granting relief by injunc- 
 tion." 
 
 24. Marshall v. Holmes, 141 U. B. 
 589, 12 S. Ct 82, 35 L. Ed. 870, per 
 Harlan, J.: "While as a general 
 rule a defense cannot be set up in 
 equity which has been fully and 
 fairly tried at law, and though in 
 view of the large powers now exer- 
 cised by courts of law over their 
 judgments, a court of the United 
 States sitting in equity will not as- 
 sume to control such judgments for 
 the purpose simply of giving a new 
 trial, it is the settled doctrine that 
 any fact which clearly proves it to 
 be against conscience to execute a 
 judgment, and of which the injured 
 party could not have availed himself 
 in a court of law, or of which he 
 might have availed himself at law 
 but was prevented by fraud or acci- 
 dent, unmixed with any fault or neg- 
 ligence in himself or his agents, will 
 justify an application to a court of 
 chancery." Metcalf v. Williams, 104 
 U. S. 93, 96, 26 L. Ed. 665; Embry 
 v. Palmer, 107 U. S. 3, 2 S. Ct. 25. 
 
 990
 
 Against Judgments; Defenses at Law. §j 
 
 677, 678 
 
 § 677. Defense essential though judgment erroneous. — In the 
 absence of a showing of meritorious defense, a court of equity 
 will not enjoin the execution of a judgment on the ground of some 
 error or irregularity on the part of the law court, and especially 
 where the error was partly caused by the oversight of the com- 
 plainant's attorney. 25 So a garnishee against whom a judgment 
 has been obtained, is not entitled to injunction to restrain the 
 execution thereof, on a petition averring that he owes the principal 
 defendant nothing, and that the judgment is erroneous. 25 
 
 §678. Same subject; meritorious defense. — It is a genera* 
 rule that an injunction restraining the enforcement of a judgment 
 will not be granted unless the defendant can show that he has a 
 meritorious defense to the action in which the judgment was ren- 
 
 27 L. Ed. 346; Knox County v. 
 Harshman, 133 U. S. 152, 10 S. Ct. 
 257, 33 L. Ed. 586; Floyd v. Jayne, 
 6 Johns. Ch. (N. Y.) 479, 482. See, 
 also, United States v. Throckmorton, 
 98 U. S. 61, 65, 25 L. Ed. 93. 
 
 25. Stout v. Slocum, 52 N. J. Eq. 
 88, 28 Atl. 7, per Bird, V. C: 
 " There is not a single fact in the 
 bill to lead the mind of the court to 
 conclude that the judgment of the 
 common pleas was wrong, or that it 
 would be against conscience to en- 
 force it. . . . It certainly would 
 be an unheard of proceeding for this 
 court to attempt in any particular to 
 review the proceedings of a court of 
 law when it has jurisdiction of the 
 cause and the parties. But it is said 
 there was a mistake made by the 
 circuit judge in remanding the 
 cause to the common pleas, instead of 
 allowing it to remain in the circuit. 
 I think this is as much a mistake or 
 oversight of the counsel for the de- 
 fendant in the cause as an oversight 
 or mistake on the part of the circuit 
 judge. He made the application for 
 the order, and failing, he left it to 
 
 the counsel of the other side to pre- 
 pare and present such an order as he 
 saw fit. But it is claimed that upon 
 reading the provisions of the statute, 
 and the various orders of the court, 
 it will appear that the order signed 
 by the chief justice remanding the 
 cause to the common pleas instead of 
 to the circuit was in that particular 
 erroneous; and that because of that 
 error, the counsel of the defendant in 
 the suit at law, was misled for so 
 long a period of time that he was 
 deprived, by the strict rules of law, 
 of any redress. As the case stands, 
 this leaves it for this court to assume 
 that the chief justice committed this 
 error; or if it does not amount to 
 this, it is an assumption that this 
 court has the power to review the ac- 
 tion of the chief justice in this par- 
 ticular, and to declare that the order 
 which he signed was irregular and 
 unlawful. I am not aware that any 
 court of equity has ever gone so far. 
 
 26. Gibson v. Cohen, 85 Ga. 850, 
 11 S. E. 141. 
 
 See §§ 671a, 671b herein. 
 
 991
 
 §679 
 
 Against Judgments; Defenses at Law. 
 
 dered. 27 So an injunction against a judgment, on the ground that 
 the defeated party was misled as to the time of the adjournment of 
 the term, so that he was prevented from obtaining an order giving 
 time after adjournment to make up a statement of facts, should 
 not be granted unless it appear that the judgment would probably 
 have been reversed on appeal, and that he used due diligence to 
 inform himself as to the time of adjournment. 28 In such cases, the 
 complainant must be able to impeach the justice and equity of the 
 verdict and judgment of which he complains, and to show the court 
 that there is good ground to expect a different result from a new 
 trial. 28 
 
 § C79. Judgment not enjoined where defense has been tried 
 at law. — It is a general rule that an injunction will not be granted 
 
 27. United States. — Nelson v. 
 Fir>t Nat. Bank, 70 Fed. 526. 
 
 Alabama. — Collier v. Parish (Ala. 
 1906), 41 So. 772. 
 
 Arkansas. — Rotan v. Springer, 52 
 Ark. 80, 12 S. VV. 156. 
 
 Colorado. — Richardson Drug Co. v. 
 Dunagan, 8 Colo. App. 308, 46 Pac. 
 227. 
 
 Delaware. — Emerson v. Gray (Del. 
 Ch. 1906), 63 Atl. 768. 
 
 Georgia. — Cardin v. Jones, 23 Ga. 
 175. 
 
 Illinois.— Ross v. Cox, 69 111. App. 
 430. 
 
 Iowa. — Lindberg v. Thomas (Iowa, 
 1908), 114 N. W. 562. 
 
 Kansas. — Muse v. Wafer, 29 Kan. 
 279. 
 
 Nebraska. — Broken Bow v. Broken 
 Bow W. Co., 57 Neb. 548, 77 N. W. 
 1078; Bankers' L. I. Co. v. Robbins, 
 53 Neb. 44, 73 N. W. 269. 
 
 New Jersey. — Stout v. Sloeum. 52 
 N. J. Eq. 88, 28 Atl. 7; Davis v. 
 Overseer of Poor, 40 N. J. Eq. 156. 
 
 Oklahoma — Hockaday v. Jones, 8 
 OKia. 156, 56 Pac. 1054. 
 
 Texas. — Ratto v. Levy Bros., 63 
 Tex. 278. 
 
 Wisconsin. — Huebschman v. Baker, 
 7 Wis. 542. 
 
 28. Ratto v. Levy Bros., 63 Tex. 
 278, per Stayton. J.: "If there was 
 a suflicient showing of diligence on 
 the part of the appellees in the prose- 
 cution of the case in which the judg- 
 ment sought to be enjoined was ren- 
 dered, still the petition fails to show 
 that the result would probably in 
 any manner, have been changed on 
 appeal. . . . It is not pretended 
 that the failure of the appellants to 
 take such steps as they intended, re- 
 sulted from any wrongful act of the 
 adverse parties, or by the fraud of 
 any other person; and we are of the 
 opinion when a party litigant does 
 not take such steps and seek such in- 
 formation as is within his reach as 
 to the time at which a final adjourn- 
 ment of a court takes place, that he 
 cannot make his want of knowledge 
 of such fact a ground for relief." 
 
 29. Plummer v. Power, 29 Tex. 
 14; Burnley v. Rice, 21 Tex. 183; 
 
 992
 
 Against Judgments; Defenses at Law 
 
 §679 
 
 to restrain the enforcement of a judgment on any grounds which 
 have been previously litigated between the parties in the action at 
 law, 30 though it may be the opinion of the equity court that the 
 defense ought to have been sustained in the suit at law. si So it 
 was said by Chancellor Kent that " the settled doctrine of the 
 court of chancery is not to relieve against a judgment at law 
 on the ground of its being contrary to equity, unless the defend- 
 ant below was ignorant of the fact in question pending the suit, 
 
 Johnson v. Templeton, 60 Tex. 239; 
 Nevins v. McKee, 61 Tex. 412; Free- 
 man v. Miller. 53 Tex. 377; Overton 
 v. Blum, 50 Tex. 417; Roller v. Wool- 
 dridffe, 46 Tex. 485. 
 
 30. United States. — Hendrickson 
 v. Hinckley, 17 Hovr. 443, 15 L. Ed. 
 123; Pelzer Mfg. Co. v. Hamburg- 
 Brewen F. I. Co., 71 Fed. 826. 
 
 Georgia. — Parker v. King, 43 Ga. 
 299. 
 
 Indiana. — Duncan v. Lankford, 145 
 Ind. 145, 44 N. E. 12; Dunn v. Fish, 
 8 Blackf. 407. 
 
 Kentucky. — Robinson v. Gilbreth, 
 4 Bibb. 183. 
 
 New Jersey. — Smalley v. Line, 28 
 N. J. Eq. 348. 
 
 New York. — Herring v. New York, 
 L. E. & W. R. Co., 63 How. Prac. 
 497; Pacific Mail S. S. Co. v. New 
 York, 57 How. Prac. 511. 
 
 Pennsylvania. — See Wilson v. Bu- 
 chanan, 170 Pa. St. 14. 32 Atl. 620. 
 
 Vermont. — Continental Life I. Co. 
 v. Currier, 58 Vt. 229, 4 Atl. 866. 
 
 Washington. — Cochrane v. Van de 
 Vanter, 13 Wash. 323, 43 Pac. 42. 
 
 The collection of a judgment 
 -will not be enjoined where all 
 qnestions were fully litigated. 
 Continental Life Ins. Co. v. Cur- 
 rier, 58 Vt. 229, 4 Atl. 866. The pe- 
 titioner obtained a decree for ali- 
 mony against her husband, and an 
 order for its enforcement against a 
 lot purchased by him, the deed to 
 
 which had been taken in the name 
 of the respondent to defeat petition- 
 er's right to support. In that action 
 respondent was made a party. After- 
 wards a decree was entered under 
 which an execution issued, and the 
 lot was levied on, and advertised for 
 sale, whereupon the mother of re- 
 spondent filed a claim in forma pau- 
 peris. Upon petitioner applying for 
 a receiver the claim was withdrawn, 
 and the lot again advertised for sale, 
 to prevent which respondent obtained 
 a temporary restraining order on her 
 application, alleging that the verdict 
 and decree were obtained by perjury. 
 On final hearing an injunction was 
 refused, and an appeal from the order 
 of refusal is still pending. Upon a 
 sale being again advertised respond- 
 ent filed a claim in forma pauperis, 
 which resulted in a furfher postpone- 
 ment thereof. Held, that respondent 
 cannot, by an attempt to renew liti- 
 gation in which her rights were ad- 
 judicated, deprive petitioner of the 
 fruits of her decree; and an order 
 enjoining the further prosecution of 
 her claim, and for the sale to pro- 
 ceed, was proper. Jenkins v. Jenkins, 
 85 Ga. 208, 11 S. E. 608. 
 
 31. Crim v. Handley. 94 U. S. 652, 
 658, 24 L. Ed. 216; Walker v. Rob- 
 bins, 14 How. 585, 14 L. Ed. 552; 
 Creath v. Sims, 5 How. 204, 12 L. 
 Ed. Ill; Sample v. Barnes, 14 How. 
 73, 14 L. Ed. 330. 
 
 993 
 
 63
 
 § G80 Against Judgments; Defenses at Law. 
 
 or it could not have been received as a defense." 32 Thus a judg- 
 ment of another State, in favor of an assignee of a note, in an 
 action in which the maker appeared and defended, is a conclusive 
 adjudication that the assignee became the owner of the note, and 
 therefore an action on the judgment will not be enjoined on the 
 allegations of a bill that the assignee has falsely sworn that he 
 was the owner of the note; that he, the payee, and a third person 
 had entered into a conspiracy to defraud the maJcer; aud that, as 
 the maker learned after the rendition of the judgment, when 
 another note given by him to the same payee became due, the 
 collateral given as security for both notes, and which was to have 
 been surrendered when the second became due, had been fraudu- 
 lently disposed of by the payee, who was insolvent; and the judg- 
 ment being the property of the assignee of the note, he can main- 
 tain an action on it for the benefit of whomsoever he pleases, 
 and it is therefore no ground for an injunction that he is main- 
 taining it for the benefit of the payee. 33 
 
 § 680. Same subject. — Where, in an action to revive a dormant 
 judgment, certain defenses were set up, which tended to show that 
 the court, when it rendered the judgment, had no jurisdiction of 
 defendant, and that he had a defense to the action and a demurrer 
 to the answer was sustained, it was held that defendant should have 
 prosecuted error from the ruling on the answer, and that he could 
 not bring an action by injunction to enjoin the judgment, and set 
 up substantially the same facts as were set forth in his answer. 34 
 So a bill to restrain a judgment will be dismissed when it appears 
 that every question involved was litigated in the action in which 
 the judgment was obtained. 35 And a court of equity will not, on 
 the application of the defendant in a judgment at law, who has 
 
 32. Simpson v. Hart, 1 Johns. Ch. 34. Haynes v. Aultman, Miller & 
 (N. Y.) 91. And see a similar opin- Co., 36 Neb. 257, 54 N. W. 511. 
 ion of the court in Hendrickson v. 35. Amey v. Calkins (N. J.), 19 
 Hinckley, 17 How. (U. S.) 445, 15 L. Atl. 388. Where the defense to an 
 Ed. 123. action on a policy of fire insurance is 
 
 33. Smedes v. Ilsley, 68 Miss. 590, that the title of the insured passed 
 10 So. 75. to a third person, who insured the 
 
 994
 
 Against Judgments; Defenses at Law. 
 
 681 
 
 had a fair opportunity to be heard upon a defense over which the 
 court at law had jurisdiction, enjoin the enforcement of the judg- 
 ment simply on the ground of its injustice. 36 Again, where de- 
 fendant was ably represented by counsel on the trial of a case, 
 which was fairly conducted, the fact that by mistake another of 
 his attorneys, who had cumulative evidence in his possession, was 
 not present at the trial, until the case had been submitted to the 
 jury, and that the court thereafter refused to permit him to intro- 
 duce such evidence, and denied his motion for a new trial, will 
 not warrant the issuance of an injunction restraining the collec- 
 lection of the judgment. 37 
 
 § 681. Facts showing defense must be pleaded Where it is 
 
 sought to enjoin a judgment because plaintiif has a defense to 
 the action, and it would be inequitable and unjust to enforce the 
 judgment, the facts constituting the alleged defense must be 
 pleaded, and it is not sufficient to merely allege that plaintiff had 
 
 same in his own name and collected 
 for the loss, the fact tha« such de- 
 fense was rendered unavailable by 
 the erroneous ruling of the court will 
 not give a court of chancery jurisdic- 
 tion to enjoin the collection of the 
 judgment recovered in such action, 
 since such defense is properly cogniz- 
 able at law. Commercial Union As- 
 sur. Co. v. Scammon, 133 111. 627, 23 
 N. E. 406. 
 
 36. Phillips v. Pullen, 45 N. J. 
 Eq. 5, 16 Atl. 9. In this case the 
 chancellor, referring to the judgment 
 sought to be enjoined, as being ren- 
 dered in the Circuit Court and af- 
 firmed by the Court of Errors and 
 Appeals, said: "That decision de- 
 termined that the complainant's at- 
 torney had authority to make the 
 agreement sued upon; that the agree- 
 ment did not lack consideration, and 
 that proof of the fraud, which is here 
 alleged, was admissible in defense of 
 that suit, but that the evidence of 
 
 it there offered and admitted was in- 
 adequate to establish it. All those 
 matters must now be considered as 
 settled between the parties to this 
 suit.'' And see Jones v. Davenport, 
 45 N. J. Eq. 77, 17 Atl. 570; Le- 
 grand v. Rixey Adm'r, 83 Va. 862, 3 
 S. E. 864. 
 
 37. Appeal of Waldo, 135 Pa. St. 
 181, 19 Atl. 1078, per Curiam: "The 
 plaintiff has had his day in court. 
 He has had his opportunity to be 
 heard and he has not been deprived 
 of it by any fraud, stratagem, or de- 
 ceit of his adversary. There can be no 
 relief in equity where the party has 
 had a trial in which he might have 
 availed himself of his equities. Wis- 
 tar v. McManes, 54 Pa. St. 326 
 Eyster's Appeal, 65 Pa. St. 475 
 Cheyney v. Wright, 7 Phila. 431 
 Hetzell v. Bentz, 8 Phila. 261; Gor- 
 dinier's Appeal, 89 Pa. St. 528; 
 Frauenthal's Appeal, 100 Pa. St. 290; 
 Stephens v. Stephens, 1 Phila. 108. 
 
 995
 
 § t>82 Aqainst Judgments; I)i mnsks at Law. 
 
 such defense. 38 So a bill to enjoin the collection of a judgment, 
 alleging simply that there was a valid defense, of which complain- 
 ant had no knowledge till after judgment, is fatally defective, as 
 not showing that complainant was prevented from making his 
 defense by fraud, accident, or the act of the opposite party, with- 
 out fault on his own part. 39 And a bill to restrain the collection 
 of a judgment should show upon what evidence it was rendered and 
 the grounds of complainant's defense, and the reason, if any, why 
 it was not made.* And a court of equity cannot enjoin proceed- 
 ings on a judgment at law entered against the complainant on the 
 verdict of a jury taken by the crier of the court, where the com- 
 plainant does not allege any defense to the proceedings, although 
 he does show an ineffectual attempt to have the judgment set 
 aside at law. 41 
 
 § G82. Diligence in learning of and making defense. — Where 
 the making of a defense is prevented by fraud on the part of the 
 plaintiff an injunction against the enforcement of the judgment 
 obtained in such action may be granted. 43 But, except in cases 
 of fraud or collusion, a judgment will not be enjoined unless it 
 clearly appears that to allow it to be executed would be contrary 
 to equity and good conscience, and that the facts which render 
 it inequitable were unavailable as a defense in the action at law, 
 without any fault or negligence of the losing party." In this con- 
 
 38. Chicago, etc., R. Co. v. Man- casca of irregularities in the law 
 ring, 23 Neb. 552, 37 N. VV. 462, per courts because relief is not afTorded 
 Maxwell J.: "This is necessary in there, without allegations of an 
 order that the facts may be put in equitable nature, it would in such 
 issue, and a mere statement of a con- cases be a court of review. This court 
 elusion is not sufficient to authorize does not interfere, unless there is ex- 
 the granting of an injunction." hibited an equity which lies beyond 
 
 39. Headley v. Bell, 84 Ala. 346, 4 the reach of a court of law. Cutter 
 So. 391 ; French v. Garner, 7 Port. v. Kline, 35 N. J. Eq. 534." 
 
 (Ala.) 549. 42. Greenlea v. Maher, Fed. Caa. 
 
 40. Buntain v. Blackburn, 27 111. No. 5,779; Lazarus v. McGuirk, 42 
 406. La. Ann. 194, 8 So. 253; Buchanan v. 
 
 41. Davis v. Delaware Poor Over- Griggs, 20 Neb. 165, 29 N. W. 297; 
 seer, 40 N. J. Eq. 156, per Bird, V. Grover v. Wyckoff, 27 N. J. Eq. 75. 
 C: " If this court were to act in all 43. Crim v. Handley, 94 U. S. 652, 
 
 906
 
 Against Judgments ; Defenses at Law. § 683 
 
 nection it is decided that where, pending a suit in the Federal 
 Circuit Court against a surety, judgment was recovered against 
 him in a State court for the same cause of action, and he paid the 
 whole amount before judgment was rendered in the Circuit Court, 
 and it appeared that the latter court refused to admit the defense 
 of antecedent payment puis darrein continuance, it was held that 
 its judgment was properly enjoined. 44 But a judgment will not be 
 enjoined on the ground that complainant had a defense to the 
 action at law which he did not know of at the time, if there were 
 facts sufficient to put him on inquiry by which the defense would 
 have been disclosed. Thus, a bill to enjoin the collection of a judg- 
 ment for refusing to enter satisfaction of a mortgage, will not lie 
 on the ground that the mortgagor had no title to the property, and 
 that such defense was not known to complainant till after judg- 
 ment, where it appears that another than the mortgagor was in 
 possession of the premises ; as such fact was sufficient to put com- 
 plainant on inquiry, which would have revealed the want of title. 40 
 
 § 683. Negligence as bar to injunction. — Where, without fraud 
 en plaintiff's part, a defendant permits judgment to go against 
 him, by reason of his misapprehension of the amount claimed by 
 the former, caused by his own negligence, he cannot maintain an 
 action to enjoin the enforcement of the judgment on showing that 
 he has a meritorious defense to a part of the claim for which it 
 was rendered, and tendering judgment for the balance. 46 And 
 
 659, 24 L. Ed. 216; Carrington v. judgment passed, and tenders that 
 
 Holabird, 17 Conn. 537; Clute v. Pot- part as to which no defense existed, 
 
 ter, 37 Barb. (N. Y.) 199; Burton v. it not only fails to negative fault on 
 
 Wiley, 26 Vt. 432. the part of complainant in respect of 
 
 44. Leggett v. Humphreys, 21 making his defense in the Circuit 
 How. 71, 16 L. Ed. 50; Humpherys v. Court, but, to the contrary, affirma- 
 Legsett, 9 How. 313, 13 L. Ed. 145. tively shows that his failure to de- 
 
 45. Headley v. Bell, 84 Ala. 346, fend was the result of his own omis- 
 4 So 391 sion, fault or neglect, and there is an 
 
 46. Shappey v. Hodge (Ala.), 13 utter absence of averment of any 
 So. 256, per McClellan, J.: "The fraud or any act on the part of the 
 bill is manifestly without equity, plaintiffs to which defendant's failure 
 While it alleges a meritorious defense to defend can be attributed. There 
 as to a part of the demand for which was, therefore, no error in the decree 
 
 997
 
 §084 
 
 Against Judgments; Dim etsba at Law. 
 
 where complainant, being in possession of land bought from de- 
 fendant under a bond for title and having paid part of the price, 
 discovered that defendant was only a tenant in common of the land 
 with four others, and refused to pay the next deferred payment 
 note that became due, and on defendant's recovering judgment 
 against him on the note, sued to enjoin its collection, alleging that 
 if tour-fifths of the title should lie lost to him, defendant was 
 financially unable to respond in damages, it was held that the 
 injunction was properly granted, and came within section 3531 
 of the Alabama Code of 18S<'», which provides that on dissolving 
 an injunction to stay proceedings on a judgment at law, the 
 chancellor must require of the defendant a bond in double the 
 amount of the sum enjoined, to refund the money he may collect 
 ou the judgment, in case its collection should be perpetually en- 
 joined by the final decree. 47 
 
 § 684. Where defendant was ignorant of defense and not 
 negligent. — Where a party had a good defense to an action at law 
 of which defense he was ignorant, equity may on this ground ro- 
 
 of the chancery court sustaining de- 
 murrers to the bill, and granting the 
 motion to dismiss it for the want of 
 equity. 3 Brick. Dig., p. 347, § 230, 
 ct seq.; Noble v. Moses, 74 Ala. 604; 
 Watts v. Frazer, 80 Ala. 186; Hall 
 v. Pegram, 85 Ala. 522, 5 So. 20!). 6 
 So. 612." See Caiman v. Stuckart, 70 
 111. App. 310. 
 
 47. Jackson v. Elliott, 100 Ala. 
 669, 13 So. 690, per Stone, C. J.: 
 " The bill makes a case for equitable 
 relief. Kelly v. Allen, 34 Ala. 663; 
 Blanks v. Walker, 54 Ala. 117; Si- 
 voly v. Scott, 56 Ala. 555; Lindsey v. 
 Veasy, 62 Ala. 421 ; Wilkinson v. 
 Searcy, 74 Ala. 243." As to what the 
 effect would have been on defendant's 
 title if he, as tenant in common, had 
 been in individual possession of the 
 land in question for twenty years, 
 and the other tenants in common had 
 
 not during that time either taken or 
 claimed possession, the court cited 
 the following cases: McArthur v. 
 Carrie, 32 Ala. 75; Marston v. Rowe, 
 39 Ala. 722; Worley v. High, 40 Ala. 
 171; White v. Hutchings, 40 Ala. 
 253; McCartney v. Bone, 40 Ala. 533; 
 Harrison v. Heflin, 54 Ala. 552; 
 Goodwyn v. Baldwin, 59 Ala. 127; 
 Barksdale v. Garrett, 64 Ala. 277; 
 Goodman v. Winter, 64 Ala. 410; 
 Baker v. Prewitt, 64 Ala. 551; Net- 
 tles v. Nettles, 67 Ala. 599; Garrett 
 v. Garrett, 69 Ala. 429; Matthews v. 
 McDade, 72 Ala. 377; Kelly v. Han- 
 cock, 75 Ala. 299; Long v. Parmer, 
 
 81 Ala. 384, 1 So. 900; Solomon 
 Heirs v. Solomon, Adm'r, 81 Ala. 
 505, 1 So. 82; Bozeman v. Bozeman, 
 
 82 Ala. 389, 2 So. 732; Davis v. Mem- 
 phis & C. R. Co., 87 Ala. 633, 6 So. 
 140; Knabe v. Burden, 88 Ala. 436; 
 
 998
 
 Against Judgments; Defenses at Law. 
 
 §684 
 
 strain the enforcement of a judgment rendered in such action. 48 
 So it has been decided that a judgment at law may be enjoined on 
 the ground of a legal defense existing but not made in the action 
 at law, where it was obtained by plaintiff in bad faith, as knowing 
 that it was contrary to fact and truth ; and where the defendant 
 neither knew the particular facts which rendered the judgment in- 
 equitable, nor had such reason to suspect that a fraud was being 
 practiced on him as would have aroused the suspicions of a prudent 
 man ; and in such a case the defendant will not be barred from 
 injunctive relief by the fact that evidence of the defense existed at 
 the time the judgment was rendered, and could have been dis- 
 covered by defendant if he had then been put upon inquiry. 49 The 
 
 Duncan v. Williams, 89 Ala. 341, 7 
 So. 416; Semple v. Glenn, 91 Ala. 
 245, 6 So. 46, 9 So. 265. 
 
 48. United States. — Davis v. Tiles- 
 ton, 6 How. 114. 12 L. Ed. 336; 
 Swan v. United States Bank, Fed. 
 Cas. No. 13,668. 
 
 Arkansas. — Reed v. Harvey, 23 
 Ark. 44. 
 
 Georgia. — Stroup v. Sullivan, 2 Ga. 
 275, 46 Am. Dec. 389. 
 
 Illinois.— Chicago & E. I. R. Co. v. 
 Hay, 119 III. 493, 10 N. E. 29; Ven- 
 num v. Davis, 35 111. 568. 
 
 Indiana.— Fitch v. Polke, 7 Blackf. 
 564. 
 
 Maryland. — Iglehart v. Lee, 4 Md. 
 Ch. 514. 
 
 Michigan. — Wales v. Bank of Mich- 
 igan, Har. 308. 
 
 Mississippi. — See Goad v. Har, 8 
 Sm. & M. 787. 
 
 Nebraska. — Radzwiert v. Watkins, 
 53 Neb. 412, 73 N. W. 679. 
 
 New Jersey. — See Cairo & F. R. Co. 
 v. Titus, 28 N. J. Eq. 269. 
 
 Virginia. — Meeur v. Rucker, 10 
 Gratt. 506. 
 
 Wisconsin. — Barker v. Ruckeyser, 
 39 Wis. 590. 
 
 What constitutes defense 
 arising after trial within meaning 
 of Missouri statute, see Wilhite v. 
 Ferry, 66 Mo. App. 453. 
 
 49. Taylor v. Nashville & C. R. 
 Co., 86 Tenn. 228, 6 S. W. 393. In 
 Reed v. Harvey, 23 Ark. 44, the court 
 held that " the rule that requires a 
 defendant to make his defense at law 
 by the presentation of every fact of 
 defense existing at the time of trial, 
 has no application to a case where 
 the defendant was not privy to the 
 fact and not have supposed to exist." 
 In Winthrop v. Lane, 3 Desaussure, 
 310, the chancellor said: "The tes- 
 timony must have been within the 
 knowledge of the party, or he must 
 have had some clue to guide him in 
 his search, before he can be said to 
 have neglected the proper step to ob- 
 tain it." In Williams v. Lee, 3 Atk. 
 223, Lord Hardwicke said : " As to 
 relief against verdicts for being con- 
 trary to equity, those cases are 
 where the plaintiff knew the fact of 
 his own knowledge to be otherwise 
 than what the jury found by their 
 verdict and the defendant was ignor- 
 ant of it at the trial — as where the 
 
 999
 
 g 885 
 
 Against Judgments; Dkfknses at Law. 
 
 fact, however, of ignorance of the matter relied on is not of r 
 sufficient but it must also appear that the defendant in the use of 
 ordinary diligence could not have acquired knowledge thereof.' 
 
 § <;s."j. Judgment not enjoined where defendant's attorney 
 negligent. — The negligence of the defendant's attorney in failing 
 to appear at the trial in consequence of which the judgment was 
 entered, is not generally a ground for an injunction to restrain 
 its enforcement. 01 80 the fact that an attorney engaged to defend 
 a suit neglects to do so, is no ground for enjoining the enforcement 
 of a judgment against his client; the only remedy of the judg- 
 ment debtor, if he was damaged, is against the attorney. 81 And 
 a court of equity will not relieve a defendant from a judgment at 
 law obtained against him by default because of the failure of his 
 
 plaintiff's action might In- for a debt 
 and the defendant after a verdict dis- 
 covers a receipt for the very demand, 
 in the action lure the court would re- 
 lieve." Referring to these eases, Lur- 
 ton. J., said, in the case before cited 
 from 8G Tenn. 228. that they are 
 " fully supported by Foster v. Woods, 
 
 6 Johns. Ch. 87; Davis v. Tileston. 6 
 How. (U. S.) 114; Jameson v. De- 
 shields, 3 Gratt. 4; Fitch v. Polke, 
 
 7 Blackford (Ind.), 5G4 ; Cantey v. 
 Blair, 1 Rich. Eq. 41; Gardiner v. 
 Hardey, 12 Gill. & J. 365, 381." 
 
 50. Alabama. — Stinnett v. Branch 
 Bank, 9 Ala. 120. 
 
 Georgia. — Hill v. Harris, 51 Ga. 
 628. 
 
 Michigan. — Wixom v. Davis, Walk. 
 Ch. 15. 
 
 Missouri. — Bunn v. Lindsay, 95 
 Mo. 250, 7 S. W. 473, 6 Am. St. Rep. 
 48. 
 
 North Carolina. — Grantham v. 
 Kennedy, 91 N. C. 148. 
 
 Tennessee. — Bailey v. Anderson, 6 
 Humph. 149. 
 
 Texas. — Harrison v. Cromb, 1 Tex. 
 App., § 991. 
 
 51. Hern v. Strauslx-rger, 71 111. 
 413; Payton \. EdcQuown, i»7 K\ 
 7."-7, ::i S. W. 874, 31 I.. |{. A. X>,; 
 Amherst College v. Allen. 165 Mas! 
 17s. 42 N\ K. .".To-. McLaughlin v. 
 Clark, l Freem. Ch. (Miss.) 385. 
 
 " Equity will not relieve against a 
 judgment at law on account of any 
 ignorance, unsUillfulness or mistake 
 of the party's attorney, unless 
 caused by the opposite party, nor for 
 counsel's negligence or inattention. 
 The fault is in such cases attributed 
 to the party himself. The neglect of 
 an attorney to plead a valid and pro- 
 per defense, or to attend the trial, 
 either intentionally or through for- 
 getfulness, furnishes no ground for 
 relief against a judgment; neither is 
 it an adequate ground for relief in 
 equity that the counsel neglected to 
 assign errors, or to take any other 
 requisite step on an appeal or writ 
 of error in the case." Peacock v. 
 Feaster (Fla. 1906), 42 La. 889, 893. 
 Per Taylor, J. 
 
 52. Barhorst v. Armstrong, 42 
 Fed. 2. 
 
 1000
 
 Against Judgments; Defenses at Law. 
 
 §685 
 
 attorney to file his plea for him. 53 And a bill to set aside a default 
 judgmeut in ejectment, which alleges fraud, but admits service 
 of summons, and that complainant mailed said summons to an 
 attorney at the county seat, with whom she had spoken about the 
 matter, but that the attorney failed to appear, and that when com- 
 plainant contrived to get to town again, some months after the 
 default, she found that the attorney had gone away, does not show 
 that she was fraudulently prevented from defending, nor that she 
 used proper diligence, and is bad on demurrer. 54 Again, where 
 
 5.3. Bardonski v. Bardonski, 144 
 111. 284, 33 N. E. 39. In Wood v. 
 Lenox (Tex.), 23 S. W. 812, Rainey, 
 J., said: "Lenox attempts to excuse 
 himself from exercising diligence on 
 the plea that Woods' counsel in- 
 formed him some time after the burn- 
 ing of the courthouse of Bowie 
 county, in January, that the papers 
 in the case had been destroyed in the 
 fire, and that he thought nothing 
 would ever be done in the premises. 
 It seems that this information was 
 incorrect, and the papers were pro- 
 duced in court at the April term 
 thereof, and given to Lenox's attor- 
 ney. This was several weeks before 
 Lenox left for Europe. The counsel 
 should have looked after the matter, 
 and, if he failed, then he is to 
 blame; and Lenox, as far as Woods is 
 concerned, must suffer the conse- 
 quences. Eddleman v. McGlathery, 
 74 Tex. 280, 11 S. W. 1100. The 
 evidence shows that the statement of 
 Woods' counsel about the records be- 
 ing burned was a mistake. But sup- 
 pose it had been tiue, would it have 
 excused Lenox from prosecuting his 
 suit? Certainly not. He had invoked 
 the aid of the law to assist him in 
 the collection of a debt. At his in- 
 stance it had reached forth its strong 
 arm, and laid hold of property be- 
 
 longing to Woods in value exceeding 
 double the amount of his debt, for 
 the purpose of securing his claim. 
 He had resorted to a harsh remedy. 
 True, it is sanctioned by the law; 
 but, when resorted to, it is done at 
 the peril of the actor, and if he is not 
 diligent in its prosecution he must 
 suffer the consequences. If the rec- 
 ords had been destroyed, the law pro- 
 vides an ample remedy by substitu- 
 tion, by which he could, without much 
 delay, have pursued the collection of 
 his claim without unnecessary injury 
 to Woods. If Lenox did not see pro- 
 per to look into the matter, or did 
 not care to substitute the lost record, 
 he could not excuse himself for that 
 reason, for Woods had the right to 
 substitute the records; and it is un- 
 reasonable to suppose that they would 
 lie still and await the pleasure of 
 Lenox to prosecute the suit when 
 there was property belonging to them 
 tied up by the suit, in value more 
 than double Lenox's debt. Even if 
 they knew that Lenox's claim was 
 just, it would have been to their in- 
 terest to have had the matter settled 
 as soon as possible, that they might 
 get the use of the surplus fund." 
 
 54. Hoey v. Jackson, 31 Fla. 541, 
 13 So. 459. 
 
 1001
 
 § GSti AOAINST JuDOME.NTS, DeWEMBMM AT LAW. 
 
 three civil suits were pending in the superior court, and the defend- 
 ant therein employed the attorney who brought the suits to del. ml 
 hi in in a criminal case, and this attorney advised him to remain 
 away from the court eo that he could not be tried at that terra 
 in the criminal case, but gave him no advice as to the civil suits, 
 to which no defense had bean filed, and the eourt Pondered judg- 
 ment therein, there was no error in denying an injunction against 
 the judgment, on the ground that the defendant was advised to stay 
 away from the court on account of the criminal case. And it was 
 not cause for an injunction that the petitioner had employed 
 counsel to defend the civil actions, and had received a message 
 from him that lie was sick, and that all of hifl cases would be con- 
 tinual for the term, tho petition for injunction failing to allege 
 that the message or any part of it wa.s true." But in a case in 
 \< hraska it is decided that in an action to enjoin a judgment on 
 the grounds that tho defendant baa a good defense, ami that it 
 was rendered through a bleach of duty by its attorneys, the facts 
 constituting the alleged defense must be pleaded, so as to show 
 that upon a retrial the result would be different. 54 
 
 § 686. Injunction barred by defendant's negligence. — In a 
 suit to restrain the execution of a judgment and for a new trial, it 
 appeared that plaintiffs were notified by their attorney of the 
 day set for trial two days in advance; that they wired him that it 
 would be impossible to procure the attendance of their witnesses on 
 the day named; that, receiving no response, they gave the case 
 no further attention, either in person or by the attendance of 
 witnesses, until after the adjournment of court, which remained 
 in session two weeks ; that they could have reached the court from 
 where they lived within eighteen hours. It was held that for 
 their negligence, plaintiffs were not entitled to relief. 57 To war- 
 rant a court of equity in reviewing a judgment and in enjoining 
 proceedings thereunder, the party seeking the relief must show, 
 
 55. Sasser v. Olliff, 91 Ga. 84, 16 Meyer, 30 Neb. 135, 46 N. W. 292. 
 
 S. E. 312. 57. Roots v. Cohen (Miss.), 12 
 
 56. Hartford Fire Ins. Co. v. So. 593. 
 
 1002
 
 Against Judgments; Defenses at Law. 
 
 §686 
 
 not only that injustice has been done him, but also that he was 
 prevented from prosecuting his cause of action, or interposing 
 his defense, by fraud, accident, or the act of the opposing party, 
 wholly unmixed with any fault or negligence of his own; and 
 the diligence required to be used to prevent injury is such as 
 prudent and careful men would ordinarily use in their own causes 
 of equal importance. And the fact that a party to a suit is in 
 delicate health, and goes abroad to recover, does not excuse him 
 from making some provision by which his interest will be pro- 
 tected, and is no ground for a review of a judgment obtained 
 against him. 58 Absence of one of the counsel employed to con- 
 
 58. Wood v. Lenox (Tex.), 23 S. 
 W. 812, per Rainey, J.: "That an 
 action may be instituted to review a 
 judgment rendered at a former term 
 of court, and to enjoin proceedings 
 thereunder, has been often adjudi- 
 cated in this State; but, in order to 
 invoke the equitable powers of the 
 court to grant relief in such cases, it 
 is not enough for the party seeking 
 relief to show that irregularities 
 were committed by the court in the 
 trial of the cause, and that he has a 
 meritorious cause of action or de- 
 fense, but he must also show that 
 something more than injustice has 
 been done him. He must show that he 
 was prevented from prosecuting his 
 cause of action, or interposing his de- 
 fense, by ' fraud, accident, or the 
 acts of the opposing party, wholly 
 unmixed with any fault or negligence 
 of his own.' In Johnson v. Temple- 
 ton, 60 Tex. 238, the court, in pass- 
 ing upon a similar case, says: ' Such 
 bills seeking relief from final judg- 
 ments, solemnly rendered in the due 
 and ordinary course of the adminis- 
 tration of justice by courts of com- 
 petent jurisdiction, are always 
 watched by courts of equity with ex- 
 treme jealousy, and the grounds 
 
 upon which interference will be al- 
 lowed are confessedly narrow and 
 restricted. It will not be sufficient to 
 show that injustice has been done by 
 the judgment sought to be enjoined. 
 It must further distinctly and clearly 
 appear that this result was not 
 caused by any inattention or negli- 
 gence on the part of the person ag- 
 grieved; and he must, among other 
 matters, show a clear case of dili- 
 gence and of merit to obtain the in- 
 terference of a court of equity in his 
 behalf at such a stage of the case.' 
 In Nevins v. McKee, 61 Tex. 413, 
 Justice Willie, in discussing this 
 question, says: 'A court of chan- 
 cery has power to grant such relief, 
 but it will not do so except upon 
 facts which show the clearest and 
 strongest reasons for its interposi- 
 tion;' citing Johnson v. Templeton, 
 supra, from which he quotes approv- 
 ingly. This doctrine is fully sup- 
 ported by Roller v. Wooldridge, 46 
 Tex. 485; Taylor v. Fore, 42 Tex. 
 256; Crawford v. Wingfield, 25 Tex. 
 416; Musgrove v. Chambers, 12 Tex. 
 32; Weaver v. Vandervanter, 84 Tex. 
 691, 19 S. W. 889; Harn v. Phelps, 
 65 Tex. 597; Eddleman v. McGlath- 
 ery, 74 Tex. 280, 11 S. W. 1100. The 
 
 1003
 
 §C86 
 
 Against Judgments; Dkfknsks at Law. 
 
 duct the defense in an action at law, is not ground for enjoining 
 the judgment therein, where it appears that if the defendant had 
 been present at the trial he might have employed other counsel 
 equally competent; nor is the fact that a witness upon whom the 
 defendant relied, was so sick during his examination aa to impair 
 his recollection of facts within bis knowledge. Having failed to 
 ask for a postponement or continuance of the trial, he cannot go 
 into equity and have judgment enjoined. 81 And it is no ground 
 for an injunction against the collection of a judgment at common 
 law, that plaint i iT possessed certain account books which defendant 
 was unable to obtain in time to examine before trial, which show, 
 upon subsequent examination, that plaintiff, who is insolvent, is 
 indebted to defendant in an amount greater than that of the judg- 
 ment recovered, for he should have obtained as much time as ho 
 was entitled to for such examination from the court, at law. 60 
 
 diligence required to be used to pre- 
 vent the injury is such as prudent 
 and careful men would ordinarily use 
 in their own cases of equal import- 
 ance. When this standard had not 
 been reached, equity will give no re- 
 lief. Taylor v. Fore, supra. Has 
 Lenox brought himself within the 
 rules above laid down? . . . The 
 evidence of Lenox shows that he had 
 been in delicate health for some time, 
 but sufficiently able to look after this 
 case. Being able so to do, he can- 
 not excuse himself for not making 
 some provision by which his interest 
 could have been protected. No wit- 
 nesses were subpoenaed, no deposi- 
 tions were taken, not even his own. 
 As far as the record shows, no ef- 
 fort was made to get an agreement 
 from opposing counsel to postpone 
 
 the cause or make any disposition of 
 it until Lenox could return. In fact 
 the whole case seems to have been 
 totally ignored by Lenox. From an 
 examination of the facts, it seems to 
 us that tin- plea of Lenox is wholly 
 without merit to entitle him to re- 
 cover. There is neither fraud, acci- 
 dent or mistake that shows any 
 equitable grounds which entitle him 
 to relief at the hand of the court. 
 His injury, if any, was caused solely 
 by his own negligence. This being 
 the case, he must suffer the conse- 
 quences. The judgment of the court 
 below is here reversed, and here ren- 
 dered for plaintiffs in error." 
 
 59. Crim v. Handley, 94 U. S. 
 652, 24 L. Ed. 216. 
 
 60. Hines v. Beers, 76 Ga. 9. 
 
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