N « % UNIVERSITY OF CALIFORNIA AT LOS ANGELES 1 ./ A TREATISE ON THE LAW OF INJUNCTIONS JAMES L. HIGH Fourth Edition REVISED AND GREATLY ENLARGED BY SHIRLEY T. HIGH OF THE CHICAGO BAR IN TWO VOLUNIKS VOL. I CHICAGO CALLAGHAN AND COMPANY 1905 Entered ac(^ording to Act of Congress, in the year 1873, by JAMES L. HIGH, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1880, by JAMES L. HIGH, In the Office of the Librarian of Congress, at Washington- Entered according to Act of Congress, in the year 1890, by JAMES L. HIGH, In the Ofhce of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1905, by SHIRLEY T. HIGH, i£ the' jCifB'c'e', of 'the Libriic_iau of Cc-^S^ess, at Washm&wn. ; M. n. vestaTj BOOK COMPOSITION CHICAGO V c, r PREFACE TO FIRST EDITION The jurisdiction of courts; of equity by the writ of injuno- '^ tion, though of English origin, is largely the result of Ameri- -v can growth and development. Perhaps no branch of equity Act Jw^'isprudence owes more to the decisions of American courts, and the growing frequency of the use of this writ, of late years, has invested the subject with a new importance. Of . the more recent text-books upon the Law of Injunctions, that V of Mr. Hilliard, professing to be purely American, contains, ^ of course, but few citations of English cases, while the English treatises of Mr. Kerr and Mr. Joyce, though complete and ^\ exhaustive so far as regards the English authorities, contain. r^ but few references to the opinions of our courts, and leave the rich field of American decisions almost untouched. And the fact that very many of the English authorities, noticeably those of recent date, are modified by statutes which are inappli- ^ cable here, has seemed to the author to create an additional ^ necessity for a work which should be based upon the decisions "Nl, of both countries, and which should present the general prin- ciples governing courts of equity, both in England and America, in the administration of preventive relief. In the preparation of this work, the cases cited have been carefully and patiently studied, from beginning to end, without regard to the head notes, and the author has constantly endeavored to present the principles underlying the actual decisions of the courts upon the points actually involved in the cases. To analyze and weigh these decisions, and to deduce therefrom the principles underlying them all, is the work which he has attempted. Believing it to be the proper function iii 174847 IV PREFACE. of legal authorship to state the law as it is, rather than as it ought to be, he has studiously refrained from the obtrusion of his own theories, not merely because they would carry little weight of themselves, but because in these days of multiplied book making, the tendency among lawyers is to use text- books merely as guide-posts to direct them to the fountain- head of our jurisprudence, the reports. But he has written in the firm conviction that the beneficent system of equity, whose "strong right arm" constitutes the subject-matter of this w^ork, is destined to outlive the iconoclasm of modern law reformers and codifiers, and to constitute for all time an integral part of our jurisprudence. That his work is without blemishes, he has not dared to hope; but that it will be found to have some merits, he confidently believes, otherwise it would never have been submitted to the verdict of a critical profession. 'J. L. H. Chicagk), January 1, 1873. PREFACE TO SECOND EDITION The rapid growth of the law of injunctions has rendered a new edition of this work necessary. Nearly twenty-three hun- dred new cases have been embodied in the present edition, including the latest decisions of the English, Irish and Ameri- can courts. Several new chapters have been added, the entire work has been re-arranged, and much of it has been re-written, to conform to the existing state of the law. These changes have rendered it necessary to abandon the numbering of the sections of the former edition, but whatever inconvenience in citation may be thus caused, will, it is hoped, be counterbal- anced by the more convenient arrangement of the different chapters and subdivisions. The work has been done under the pressure of an active practice, and the author can not hope to have attained such satisfactory results as might have been possible under more favorable conditions. Nevertheless, he has spared no pains to insure accuracy and thoroughness in his work. More freedom has been used in the expression of individual opinion, and in the criticism of doubtful authorities, than in the former edition; but whether the work, as a whole, has been thus improved, remains for the profession to deter- mine. J. L. H. Chicago, December, 1880. PREFACE TO THIRD EDITION The second edition of this work was published in December, 1880. More than fourteen hundred cases upon the topics of which it. treats have since appeared in the published reports and are embodied in the present edition. While the general plan and arrangement of the work remain unchanged, consider- able modifications of former statements have been rendered necessary, and more than two hundred pages have been added to the text. J. L. H. Chicago, January, 1890. VI PREFACE TO FOURTH EDITION It was the intention of the author of this work, after the publication of the third edition in 1890, to make no further revis- ion of tlie work himself. During the later years of his life it was his desire to leave to the present editor the task of pi^epar- ing' any future editions which might from time to time become necessary. It is in the consummation of this wish, as well as because of the recent rapid growth of the law of injunctions, that the fourth edition is now presented. While there has been, of recent years, a wide development of the preventive jurisdiction of equity in all its branches, this development has been especially noticeable in connection with injunctions against the infringement of trade marks, including what has come to be known as unfair competition, injunctions pertaining to streets and highways, and to negative covenants and contracts in restraint of trade, and, finally, the use of the writ which has resulted from the labor troubles and disturb- ances of the last decade. The growth of the law in the three branches enumerated would alone be sufficient to justify a new edition of this work. In bringing out the present edition, the editor has en- deavored, both in the preparation of the work and in the pre- sentation of the subject, to follow as closely as possible along the lines adhered to by the author. Numerous modifications of the former text have been rendered necessary, and in several instances the text has been entirely re-written. Nearly twenty- vii VIU PREFACE. three hundred cases have been added to the work, making a total of about eighty-five hundred authorities now cited. Three hundred and ninety pages have been added to the text exclusive of the table of eases and the index. Of this additional matter, about one-third is represented by new sections. The section numbering remains unchanged, the new sections, of which there are over one hundred and forty, being indicated by lettering. Shieley T. High. Chicago, 1905. CONTENTS THE REFERENCES ARE TO THE SECTIONS. VOLUME I. CHAPTER I. Of the Definition and Nature of the Remedy 1 CHAPTER II. Of Injunctions Against Actions at Law 45 I. — Grounds of the Jurisdiction 45 II. — Defense at Law gy III. — Suits Pertaining to Real Property 95 IV. — Suits in Foreign Courts 10:i V. — State and Federal Courts lOS CHAPTER III. Of Injunctions Against Judgments 112 I. — General Features of the Jurisdiction 112 II Defense at Law 165 III. — Judgments Obtained through Fraud 190 IV. — Accident, Mistake, Ignorance and Surprise 209 V. — Irregular, Erroneous and Void Judgments 225 VI. — Judgments upon Usurious Contracts 232 VII. — Judgments upon Gaming Contracts 235 VIII.— Set-offs 237 IX. — Judgments as Affecting Title 245 X. — Court in which the Judgment was Rendered 265 XI — Injunctions against Awards 273 XII. — Judgments by Default and Confession 277 CHAPTER IV. Of Injunctions in Aid of Proceedings in Bankruptcy 282, CHAPTER V. Of Injunctions in Ecclesiasticai. Matters 304 ix X CONTENTS. THE REFERENCES ARE TO THE SECTIONS. CHAPTER VI. Of Injunctions Affecting Reax Property 323 I. — General Features of the Relief 323 II. — Injunctions in Aid of Possession 354 III. — Judicial Sales under Execution against Third Persons. 367 IV. — Cloud upon Title 372 V. — Collection of Purchase Money on Failure of Title 382 VI.— Ejectment 414 VII. — Landlord and Tenant 430 VIII.— Homesteads 438 CHAPTER VII. Of Injunctions Pertaining to Mortgages 442 I. — Injunctions in Behalf of Mortgagors 442 II. — Injunctions in Behalf of Mortgagees 462 III. — Injunctions Concerning Third Parties 469 IV. — Waste of the Mortgaged Premises 478 CHAPTER VIII. Of Injunctions against Taxes 484 I. — Principles Governing the Jurisdiction 484 II.— Cloud upon Title 524 III. — Property Exempt from Taxation 530 IV. — Municipal Taxation 536 V. — Municipal-aid Taxes 561 VI.— Bounties 570 VII.— Parties 573 CHAPTER IX. Of Injunctions Pertaining to Streets and Highways 578 CHAPTER X. Of Injitnctioxs against Railways 598 I. — Principles Governing the Jurisdiction 598 II. — Failure to Compensate for Right of Way 622 CHAPTER XI. Of Injunctions against Waste 649 I. — Origin and Nature of the Jurisdiction 649 II. — Destruction of Timber 671 III Equitable Waste 680 IV.— Parties 686 CONTENTS. XI THE REFERENCES ARE TO THE SECTIONS. CHAPTER XII. Of Injunctions against Trespass 697 I. — General Features of the Jurisdiction 697 II. — Cutting Timber 723 III. — Trespass to Mines 730 CHAPTER XIII. Of Injunctions against Nuisance 739 I. — Grounds of the Jurisdiction 739 II. — Public Nuisances 759 III. — Nuisances to Dwellings 772 IV. — Nuisances to Water 794 V. — Streets and Highways 816 VI. — Railways 826 VII. — Bridges 833 VIII.— Mill-dams 839 CHAPTER XIV. Of Injunctions for the Protection of Easements 848 I. — Leading Principles 848 II — Easements in Light 859 III. — Easements in Water 870 IV. — Rights of Way 886 CHAPTER XV. Of Injunctions for the Protection of Franchises 897 I. — Nature and Grounds of the Relief 897 II. — Roads and Railways 912 III. — Bridges 917 IV. — Ferries 927 CHAPTER XVI. Of Injunctions against the Infringement of Patents.... 934 I. — Nature and Grounds of the Jurisdiction 934 II. — Effect of Prior Adjudications 953 III. — Principles upon which Relief is Granted 900 VOLUME II. CHAPTER XVII. Of Injunctions again.st the Infringement of Copyrights 988 I. — Nature of the Right and its Infringement 988 II. — Principles Governing the Jurisdiction 1022 III. — Dramatic Compositions 1038 Xii CONTENTS. THE REFERENCES ARE TO THE SECTIONS. IV. — Musical Compositions 1053 v.— Parties 1057 CHAPTER XVIII. Of Injunctions against the Infringement of Trade Marks. .. .1063 I. — Nature of the Right and its Infringement 1063 II. — Principles Gorerning the Relief 1085 III.— Parties llOa CHAPTER XIX. Of Injunctions Pertaining to Contracts 1106 I. — Nature and Grounds of the Jurisdiction 1106 II. — Promissory Notes 1123 III. — Negative Contracts 1134 IV.— Contracts in Restraint of Trade 1167 CHAPTER XX. Of Injunctions Pertaining to Private Corporations 1184 I. — Governing Principles 1184 II. — Injunctions in Behalf of Shareholders 1203 III.— Ultra Vires 1224 IV.— Corporate Elections 1230 CHAPTER XXI. Of Injunctions Pertaining to Municipal Corporations 1236 I. — Nature and Grounds of the Jurisdiction 1236 II. — Municipal Improvements 1270 III. — Municipal-aid Subscriptions 1282 IV.— Parties 1298 CHAPTER XXII. Ok Injunctions against Public Officers 1308 CHAPTER XXIII. Ok I njunctionh in Partnebship Matters 1330 I. — Principles Governing the Jurisdiction 1330 II. — Dissolution of the Firm 1342 III. — Injunctions in Connection with Receivers 1350 CHAPTER XXIV. Ok Injinctions Plutaining to Executors and Administrators. .1360 CHAPTER XXV. Ok I.nji'nction.s Pertaining to Si retiks 1376 CHAPTER XXVI. Of I.njt'nctions Between Hush.xm) and Wife 1387 CONTENTS. Xiii THE REFERENCES ARE TO THE SECTIONS. CHAPTER XXVII. Of Injunctions in Behalf of Creditok.s 1402 CHAPTER XXVIII. Of Injunctions against Stiukks and Boycotts 1415 a CHAPTER XXIX. ^ Of the Violation of Injunctions 141(; I. — Effect of the Writ and its Violation 141fj II. — What Constitutes a Violation 1432 III. — Remedy for Violation 1449 CHAPTER XXX. Of the Dissolution of Interlocutory Injunctions 1467 I. — Grounds of Dissolution 1467 II. — Dissolution upon Answer 1505 III. — Injunctions against Several Defendants 1528 IV. — Injunctions against Proceedings at Law 1536 V. — Injunctions Affecting Realty 1542 CHAPTER XXXI. Of the Pabties to the Action 1547 CHAPTER XXXII. Of Practice 1565 I. — Practice in Granting Injunctions 1565 II. — Amendments 1592 III. — Practice in Dissolving Injunctions 1599 CHAPTER XXXIII. Of the Bond and Damages 1619 I.— Of the Bond 1619 II. — Sureties 1635 III.— Right of Action 1648 IV. — Assessment of Damages 1657 V. — Damages ' 1663 VI.— Counsel Fees 1685 CHAPTER XXXIV. Of Appeals ^ 1693 I. — Appeals from the Granting of Injunctions 1693 II. — Appeals from the Dissolution of Injunctions 1702 III. — Appeals under Court of Appeals Act 1712 TABLE OF CASES CITED. THE REFERENCES Abbot V. American Hard Rubber Co., 1193. Abbott V. Allen, 362, 370. Abbott V. Edgerton, 493, 503. Abeel v. Culberson, 127. Abernethy v. Hutchinson, 967. Ableman v. Roth, 134, 135, 447. Abraham v. Bubb, 648. Abrams v. Camp, 169. Ackerman v. Hartley, 637, 638, 639. Ackerman v. Horicon Iron Mfg. Co., 807. Ackerman v. True, 16. Adair v. Young, 894. Adams v. Beman, 444, 449. Adams v. Brenan, 1237, 1268, 1269. Adams v. Harrington, 568. Adams v. Hudson County Bank, 1515. Adams v. Knapp, 28. Adams v. Michael, 708, 754. Adams v. Nebraska City Bank, 430. Adams i\ Olive, 1580. Addleman v. Mormon, 371, 377. Addyston Pipe & Steel Co. v. United States, 1185. Adler v. Met. El. R. Co., 14, 725. Adriance v. National Harrow Co., 970. Ady I'. Freeman, 1631, Aerators, Limited, v. Tallitt, 1020, 1058. ARE TO THE PAGES. African M. E. Church v. Conover, 1545, 1546. Agard v. Valencia, 383. Ager V. Peninsular & 0. S. N. Co., 979. Ahlers v. Thomas, 1450, 1526. Ah Thaie v. Quan Wan, 1629, Aiken v. Leathers, 1629. Ainsworth v. Bentley, 1158, 1181. Ainsworth v. Walmsley, 1034. Airs V. Billops, 322. Akerly v. Vilas, 128, 129, Akers v. Marsh, 745. Akin V. Davis, 16, 806. Akrill V. Selden, 5, 43, 682. Alabama Gold Life Insurance Co. V. Lott, 441, 443, 468, 469. Alaska Improvement Co. v. Hirsch, 1579. Albany & B. M. Co. v. Auditor- General, 444, 449, 450. Albany City Bank v. Schermer- horn, 1502. Albany City National Bank v. Maher, 487. Albany & N. R. Co. v. Brownell, 572. Albany Perforated W. R. Co. v. Hoberg Co., 1019. Albright v. Albright, 321. Albright v. Fisher, 1250. Albright v. Smith, 1610. Albright r. Teas, 1158. Albro r. Dayton, 169. Albuqerque Bank v. Perea, 459, 476. XV XYl TABLE OF CASES CITED. THE REFERENCES Alden i: Boston, 281. Alderson v. Commissioners, 1341, 1460, 1472. Aldrich r. Howard, 755. Aldrich r. Reynolds, 1617, 1621, 1625, 1629. Alexander v. Colcord, 1624. 1637. Alexander v. Fransham, 176, 241. Alexander v. Gish, 1609. Alexander v. Henderson, 43, 456, 482. Alexander v. Morse, 1048. Alexander v. Mullen, 404. Alexander v. Tolleston Club, 846. Alexandria C. R. & B. Co. v. Dis- trict of Columbia, 510. Alford V. Moore's Adm'r, 1573. Allan V. Inman, 1375. Allegretti v. Allegretti Chocolate Cream Co., 1037, 1041. Alleman v. Kight, 169. Allen V. Baltimore & O. R. Co., 496. Allen V. Board, 725, 726, 1532. Allen V. Brown, 1624, 1632, 1634. Allen v. Burke, 1104. Allen V. Car Co., 46, 440, 466. Allen r. Dingley, 1459. Allen I'. Donnelly, 75. Allen V. Dunlap, 693. Allen V. Inhabitants of Jay, 1299, 1300. Allen V. Intendant of La Fayette, 1284. Allen V. Medill, 236, 1528. Allen V. Phillips, 378. Allen t\ Stewart. 143. Allen V. Taylor, 1178. Allen r. Thornton, 362, 363. Allen V. Watt, 147. Allen r. Willis, 1609. Allen (). Windstandly. 143. Allgood V. Merrybent & D. R. Co., 608. Alliance & D. C. G. Co. v. Dublin County Council, 573. ARE TO THE PAGES. Alliance Trust Co. v. Multnomah County, 468. Alliance Trust Co. v. Stewart. 1596, 1622. Allington Mfg. Co. v. Lynch, 895. Allis V. Stowell, 930. Allis-Chalmers Co. v. Reliable Lodge, 1410, 1412, 1413. Allison V. Carson, 20. Allison V. Louisville, H. C. & W. R. Co., 1299, 1310. Allison's Appeal, 639. Allport V. Kelley, 1631. Allsopp V. Wheatcroft, 1159, 1175. Allwood V. Cowen, 478. Almy V. Piatt, 97. Alpers V. San Francisco, 1251. Alsop V. Eckles, 342. Alston V. Limehouse, 1640. Alston V. Wheatley, 411, 436. Alsup V. Allen, 1485. Althen v. Kelly, 557. Altman v. Royal Aquarium So- ciety, 1132. Alva State Bank v. Renfrew, 470. Alwood V. Mansfield, 1612. Amberg F. & I. Co. v. Smith & Co.. 945. Ambos V. Railway, 1649. Amelia Milling Co. v. Tenn. C. I. & R. Co., 20. Amelung v. Seekamp, 627, 845, 847. American Association r. Hurst, 256. American Association Ball Club v. Pickett, 1149, 1153. American Bank-Note Co. v. N. Y. El. R. Co., 564. American Bell T. Co. v. Brown, 924. American Bell T. Co. v. McKees- port T. Co., 897. American Bell T. Co. v. Southern T. Co., 897. American Bell T. Co. v. Western Tel. & Const. Co., 924. TABLE OF CASES CITEJJ. xvn THE REFERENCES ARE TO THE PAGES. American Cable Ry. Co. v. Chicago City Ry. Co., 924, 926. American Cable Ry. Co. v. Citizens Ry. Co., 924, 926. American Clay Mfg. Co. v. A. C. M. Co., 1056, 1071. American Coal Company v. Consol- idation Coal Company, 592. American Co. v. City of Elizabeth, 883. American Co. v. Sullivan Co., 890. American D. & I. Co. v. Trustees, 344. American Electric Novelty Co. v. Newgold, 902. American Express Co. v. Raymond, 445. American Fisheries Co. v. Lennen, 1157, 1170. American Live Stock C. Co. v. Chi- cago Live Stock Exchange, 1201. 1484, 1655. American M. P. Co. f. Vail, 894, 902. American Paper P. & B. Co. v. National F. B. & P. Co., 899. American Preservers Co. v. Norris, 1181. American Purifier Co. v. Christian, 897. American R. & C. Co. v. Linn, 1218. American School of Magnetic Healing, y. McAnnulty, 1342. American S. P. Co. v. Burgess S. F. Co., 897. American Steel & Wire Co. v. Wire Drawers' Union, 783, 1410, 1413, 1414. American Strawboard Co. v. In- dianapolis Water Co., 1666. American Tel. & T. Co. v. Pearce, 604, 605. American Tel. & T. Co. i'. Smith, 604, 605. American U. T. Co. v. Union Pa- cific R. Co., 1226. American Waltham Watch Co. v. Sandman, 1025, 1027. American Waltham Watch Co. v. U. S. W. Co., 1025, 1027. American Washboard Co. v. Sag- inaw Mfg. Co., 1077. Amerman v. Deane, 37, 1143. Amherst College v. Allen, 213. Amick V. Bowyer, 367. Amis V. Myers, 142, 346. Amos V. Norcross, 37. Amoskeag Co. v. Garner, 1023, 1087. Amoskeag Mfg. Co. v. Spear, 1033. Amsterdam Knitting Co. v. Dean, 14, 671. Anchor Electric Co. v. Hawks, 1158, 1176. Andel v. Starkel, 100. Anderson, Ex parte, 281. Anderson v. Biddle, 186. Anderson v. Commissioners, 1322. Anderson v. Dowling, 100. Anderson «'. Falconer, 1584, 1588. Anderson v. Frye, 331. Anderson v. Gordon, 57. Anderson v. Hall, 252. Anderson v. Harvey, 693. Anderson v. Lord Mayor, 1288. Anderson v. Mayor, 707. Anderson v. Noble, 11. Anderson v. Oldham, 200. Anderson v. Orient Fire Ins. Co., 1276. Anderson v. Provident L. & T. Co., 1630, 1631, 1635, 1636. Anderson v. Reed, 1498. Anderson v. Tydings, 149. Anderson v. United States, 1186. Anderson v. Walton, 1377. Andrae v. Redfield, 9, 95. Andrews v. Feuter, 135. Andrews v. Glenville Woolen Co^ 1579, 1628. 1634. XVlll TABLE OF CASES CITED. THE REFERENCES Andrews v. King County, 36, 476, 477. Andrews v. Knox Co., 1245, 1246, 1435, 1438, 1555. Andrews v. Pratt, 1241. Andrews v. Rumsey, 494. Androvette v. Bowne, 1550. Angell V. Draper, 152, 318, 1397, 1398. Angler v. May, 1572. Angler v. Webber, 1355. Anheuser-Busch Brewing Assn. v. Piza, 1025. Anonymous, 24, 30, 68, 98, 362, 415, 630, 1347, 1352, 1432. Anshutz V. Anshutz, 1390. Anstell V. McLarin, 163. Anthony v. Dunlap, 251. Anthony v. Stephens, 1644. Anthnoy v. Sturgls, 457. Apgar i\ Christophers, 391. Apollinaris Co. v. Venable, 1599. Appeal of Fowler, 1403. Applegate v. Morse, 830. Arbuckle v. Blackburn, 86. Arbuckle v. McClanahan, 419. Archbishop of San Francisco v. Shipman, 351, 353. Archer v. Terre Haute & I. R. Co., 496. Argo V. Barthand, 1245. Arkansas Building Ass'n v. Mad- den, 440, 456, 466. Arkansas Democrat Co. v. Pi'ess Printing Co., 1264. Armijo r. Baca, 1331. Armington v. Palmer, 1056, 1057, 1071. Armistead v. Ward, 159, 1375, 1376, 1377. Armitage v. Fisher, 1326. Armstrong v. City of St. Louis, 1287, 1289. Armstrong i;. Courtenay, 1118. Armstrong v. Hickman, 208. ARE TO THE PAGES. Armstrong v. Ogden City, 530. Armstrong v. Potts, 1478. Armstrong v. Sanford, 51, 349, 418^ 1498. Armstrong v. Waterford & L. R. Co., 602, 603. Arnold v. Bright, 335. Arnold v. Hawkins, 511. Arnold v. Henry, 1326, 1332. Arnold v. Klepper, 702. Arnold v. Middletown, 448. Arthur v. Batte, 254. Arthur v. Case, 830. Arthur v. Oakes, 1410, 1420, 1421.. Artman v. Giles, 1397, 1401, 1527. Asbestos Felting Co. v. U. S. &. F. S. Felting Co., 891. Asevado v. Orr, 1593, 1596. Ashby V. Chambers, 1621. Ashby V. Tureman, 1584, 1586. Ashby V. Wilson, 1134, 1135. Ashe V. Johnson's Adm'r, 1094. Asheville St. Ry. Co. v. City of Asheville, 9. Ashton V. Jones, 169. Ashworth v. Browne, 859. Aslatt V. Mayor, 1326. Aspden v. Seddon, 698. Assignees v. Wilkins, 982. Aston V. Aston, 648, 649, 650. Atchison 'V. Peterson, 838. Atchison & N. R. Co. v. City of Troy, 1546. Atchison Street R. Co. v. Missouri P. R. Co., 588. Atchison, T. & S. F. R. Co. v.. Fletcher, 1550. Atchison, T. & S. F. R. Co. v. General Electric Co., 566, 588. Atkins V. Chilson, 400, 823.. Atkinson, In re, 284. Atkinson r. Beckett, 1497. Atkinson r. Doherty, 34, 35. Atkinson v. Hewitt, 658. TABLE OF CASES CITED. T11C IHE REFERENCES Atlantic City W. W. Co. v. At- lantic City, 1183. Atlantic City W. W. Co. v. Con- sumers W. Co., 14, 864. Atlantic Delaine Co. v. Tredick, 1109. Atlantic & P. T. Co. v. Union Pacific R. Co., 1226. Attorney-General v. Acton Local Board, 729. Attorney-General v. Albany Hotel Co., 1577. Attorney-General v. Algonquin Club, 1137. Attorney-General v. American To- bacco Co., 1222. Attorney-General v. Ancaster, 1522. Attorney-General v. Ashborne R. G. Co., 46. Attorney-General v. Aspinwall, 1247. Attorney-General v. Bank of Mich- igan, 1192. Attorney -General v. Bank of Ni~ agara, 1191, 1192. Attorney-General v. Bay State Brick Co., 788. Attorney-General v. Bradford Canal, 774. Attorney-General 'V. Brighton & H. C. L. Assn., 782. Attorney-General v. Brown, 724, 787. Attorney-General ^\ Burrell, 1318. Attorney-General v. Burrows, 629. Attorney-General v. Cambridge Consumers Gas Co., 787. Attorney-General v. Carmarthen, 1188. Altorney-General v. Chamberlane, 721. Attorney-General v. City of Eau Claire, 57, 58, 730, 1544. .Attorney-General v. Cleaver, 707, 723. ARE TO THE PAGES. Attorney-General v. Cockermouth Local Board, 729. Attorney-General v. Cohoes Com- pany, 721, 723. Attorney-General v. Colony Hatch Lunatic Asylum, 710, 774. Attorney-General v. Commission- ers of Kingstown, 42, 1210, 1274. Attorney-General v. Compton, 1529. Attorney-General v. Conservators, 731. Attorney-General v. Council of Birmingham, 774. Attorney-General v. County Coun- cil of Mayo, 782, 1529. Attorney-General v. Delaware & B. B. R. Co., 723, 800, 1227. Attorney-General v. Esher L. Co., 1529. Attorney-General v. Forbes, 726, 787. Attorney-General v. Foundling Hospital, 455, 1189. Attorney-General v. Gee, 776. Attorney-General v. Great Eastern R. Co., 838. Attorney-General r. Great North- ern R. Co., 1204, 1221, 1222, 1444. Attorney-General v. Greenville & H. R. Co., 791. Attorney-General r. Guardian Mu- tual Life Insurance Co., 1198. Attorney-General v. Guardians of Poor, 776. Attorney-General v. Hunter, 710, 717, 732. Attorney-General v. Johnson, 722, 726. Attorney-General v. Lea's Heirs, 707, 1529. Attorney-General v. Leeds Corpor- ation, 774. Attorney-General v. Marsh, 1489. Attorney-General v. Mayor, 9, 20, 1188, 1247, 1248, 1317. XX TABLE OF CASES CITED. THE REFERENCES Attorney-General v. Mayor of Liv- erpool, 1493. Attorney-General i\ Mayor of Pat- erson, 719. Attorney-General v. Mayor of Waterford, 42, 1274. Attorney-General v. Mid-Kent R. Co., 594. Attorney-General v. New Jersey R. R. & T. Co., 3. Attorney-General i\ New York & L. B. R. Co., 731, 800. Attorney-General r. Nichol, 30, 707, 818, Attorney-General i\ Oakland County Bank, 1474, 1486, 1499, 1502, 1503. Attorney-General v. Pearson, 292. Attorney-General v. Perkins, 707, 752, 1529. Attorney-General v. Railroad Com- panies, 17, 32, 57, 1544. Attorney-General v. Richards, 1530. Attorney-General v. Richmond, 774. Attorney-General v. Sheffield Gas Consumers Co., 12, 703, 787. Attorney-General r. Shrewsbury Bridge Co., 729. Attorney-General v. St. Cross Hos- pital, 313. Attorney-General v. Steward, 720, 735, 740. Attorney-General v. Terry, 722. Attorney-General r. Utica Insur- ance Co., 29, 861. Attorney-General v. Welsh, 293, 1099. Attwood V. Barham, 384, 1104. Atwater v. Castner, 1023. Atwell V. Barnes, 525. Atwill V. Ferrett, 977, 1011. Auburn & C. P. R. Co. r. Doug- lass, 855. 857, 858. ARE TO THE PAGES. Audenried v. Philadelphia & R. R. Co., 4, 8, 592. Augusta Ice Co. v. Gray, 1645, Augustin V. Dours, 249. Augustine v. McFarland, 273, 285. Aurora & Cincinnati R. Co. v. Miller, 622. Aurora & C. R. Co. v. City of Law- renceburgh, 584. Austin v. Coggeshall, 1238, 1242, 1244. Avant V. Flynn, 445, 450, 481 Avegno v. Johnston, 1592. Avery r. Andrews, 1453. Avery v. Fox, 768, 1337. Avery v. Job, 36, 1237. 1243, 1245. Avery v. N. Y. C. & H. R. R. Co., 845. Avery v. Onillon, 1478. Avery v. Ryan, 1596. Axmann r. Lund, 969. Ayers v. Lawrence, 1310. Ayers i'. Widmayer, 445, 455. Ayling v. Hull, 890. Aynsley v. Glover, 822. B Babcock v. McCamant, 192. Babcock v. New Jersey S. Y. Co., 29, 735, 740. Bach r. Goodrich, 240, 344, 345. Bachelder v. Bean, 175. Back V. Stacey, 819. Back V. Stacy, 822. Backus r. Gould, 953. Bacon v. Jones, 879, 881, 910. Bacon r. Spottiswoode, 927. Bacon v. Walker, 1285. Badische Anilin & Soda Fabrik v. Schott, 1158, 1176. Bagg r. Detroit, 494, 531, Bagnall v. Villar. 424. TABLE OF CASES CITED. XXI THE REFERENCES Bagshaw v. Eastern R. Co., 1204. Bailey v. Collins, 1157. Bailey v. Devereux, 72. Bailey v. Gibson, 1589. Bailey v. Hobson, 329. Bailey v. Ross, 1373. Bailey v. Schnitzius, 4. Bailey v. Simpson, 431, 1552. Bailey v. Stevens, 135. Bailey v. Taylor, 982. Bailey v. Willeford, 139. Bailey v. Taylor, 982. Bailey W. M. Co. v. Adams, 901. Baird v. Shore Line R. Co., 796. Baird v. Wells, 1196. Baker v. Baker & Co., 1664. Baker v. Bohannon, 740. Baker v. Mitchell, 1326. Baker v. Pottmeyer, 1157. Baker v. Redd, 196, 197. Baker v. Rinehard, 142, 143, 185, 347. Baker v. Ryan, 233. Baker v. Taylor, 936, 937, 1548. Baker & Co. v. Sanders, 1037, 1041. Balch V. Wastall, 1398. Baldwin v. Buffalo, 553. Baldwin v. Darst, 327. Baldwin v. Hewitt, 451. Baldwin v. Murphy, 184. Baldwin v. North Branford, 542. Baldwin v. Shine, 451. Baldwin v. Society, 1105. Baldwin v. Tucker, 482, 483, 520, 521. Baldwin i-. Wilbraham, 1238, 1313. Baldwin v. York, 383. Balkum v. Harper's Adm'r, 163, 1369, 1657. Ball V. Ray, 746. Ball V. Storie. 262. Ball c. Tunnard, 1495. Ballard i\ Appleton, 533. Ballentine r. Webb. 736. Balliet o. Cassidy, 970. ARE TO THE PAGES. Ballin v. Ferst, 1402. Ballon V. Inhabitants of Hopkin- ton, 771. Ballow V. Wichita County, 169. Balls V. Balls, 1397. Baltimore Car Wheel Co. v. Bemis, 970. Baltimore & E. S. R. Co. v. Spring, 1278. Baltimore L. I. Co. v. Gleisner, 970_ Baltimore & O. R. Co. v. Ford, 127. Baltimore & O. R. Co. v. Strauss„ 593, 793. Baltimore & 0. R. Co. v. Wheel- ing, 1211, 1517, 1564. Baltimore R. Co. c. Highland, 611. Baltzell V. Randolph, 137. Bancroft v. Thayer, 1341. Banger's Appeal, 528. Bank v. Ferris, 469. Bank v. Hill, 95. Bank of B. Falls r. Rutland, 117. Bank of California v. Fresno C. & I. Co., 14. Bank of Chenango ;;. Cox, 435. Bank of Kentucky v. Hancock, 252. Bank of Kentucky v. Stone, 47, 48, 444. Bank of Monroe v. Gifford, 1595, 1615. Bank of Orleans v. Skinner, 50, 1540, 1541, 1552. Bank of Turkey r. Ottoman, 40. Bank of U. S. v. Schultz, 54, 242, 350. Bank of Washington v. Arthur, 1101. Bankers' Life Ins. Co. v. Bobbins, 149, 225. Banks r. Busey. 92. Banks r. Gibson, 1054, 1356. Banks v. McDivitt, 953, 976. Banks v. Parker, 338. Banks v. State, 1624, 1625. XXll TABLE OF CASES CITED. THE REFERENCES Baptist Church v. Witherell, 292, 309. Baragree r. Cronkhite, 151. Barber v. Reynolds, 164. Bardes r. Hawarden Bank, 283. Bardonski r. Bardonski, 213. Barfield r. Nicholson, 986, 1116, 1182, 1461, 1462. Barker r. City of Omaha, 532. Barker v. Elkins, 212. Barker v. Millard, 98. Barnard v. Commissioners, 14. Barnard v. Davis, 280, 1565, 1567. Barnard r. Gibson, 927. Barnard f. Sherley, 765. Barnard r. Wallis, 813. Barneich i: Mercy, 829. Barnes r. Calhoun, 752. Barnes v. McAllister, 1121. Barnes r. Racine, 725, 1532. Barnes v. Williams, 1238, 1240. Barnesville r. Murphy, 1243. Barnett v. Johnson, 828. Barney v. Luckett, 391. Barnum r. Minnesota T. R. Co., 785. Baron v. Korn, 663, 678. Barr v. Collier, 1499. Barr r. Deniston, 456. Barr v. Essex Trades Council, 1410, 1411, 1415, 1416. Barr Company r. New York & N. H. A. L. Co., 896. Barre Water Co. r. Carnes, 1635. Barret r. Blagrave, 1125, 1126. Barrett r. Bowers, 1631. Barrett v. Fish, 965, 967. Barrett v. Mt. Greenwood Ceme- tery Assn., 764. Barrow r. Davis, 441. Barrow v. Richard, 1141. Barrow r. Robichaux, 166, 209. Barry r. Barry, 637. Barry r. Urune, 258. ARE TO THE PAGES. Bartholomew v. Harwinton, 542, 543, 1490. Bartholomew v. Lutheran Congre- gation, 294. Bartlett v. Bartlett & Son, 20. Bartlett v. Loudon, 362, 374. Bartlette v. Crittenden, 967, 993. Bartley v. Spaulding, 323. Barton r. Moffit, 323. Barton v. Union C. Co., 764. Basche v. Pringle, 1640. Bascom v. Bascom, 1390. Basket v. Moss, 407. Basket v. University of Cambridge, 954. Ba Som v. Nation, 549. Bass V. City of Shakopee, 1291, 1454. Bass V. Metropolitan W. S. El. Co., 640. Bass V. Nelms, 151. Bastian v. The Modern Woodmen of America, 1219. Bateman v. Florida C. Co., 1259. Bateman t\ Ramsay, 201. Bateman v. Willoe, 133, 134, 169. Bates V. Slade, 683. Bates V. Taylor, 1338. Bath V. Sherwin, 75. Battalion Westerly Rifles r. Swan, 4. Battle V. Finlay, 1078. Battle r. Stephens, 51, 1552. Bauer Grocer Co. v. Zelle, 1561. Baugher r. Crane, 393, 398, 399. 655. Baumgarten r. Broadway, 1157. Baxter v. Baxter, 145. Baxter r. Board of Trade of Chi- cago, 1195. Baxter r. Combe, 909, 911. Bay State Brick Co. v. Foster, 563, 569. Bayles v. Dunn, 550. Bayless r. Orne, 1211. Bayliss v. Scudder, 1629. TABLE OF CASES CITED. xxm THE REFERENCES Beach v. Hobbs, 897. Beach v. Shoenmaker, 493. Beach v. Sparks Mfg. Co. 770. Beadel v. Perry, 817, 820. Beaird v. Foreman, 169. Beal V. Chase, 1157, 1168. Beal V. Gibson, 1510, 1511. Beale v. Seiveley, 362, 364, 370. Bealey v. Shaw, 760, 763, 766. Beall V. Shaull, 1396. Bear v. Chase, 283. Beaser v. City of Ashland, 47, 349, 498, 530. Beatty v. Kurtz, 308, 675, 682, 1533, 1534. Beatty v. Smith, 50, 143, 667. Beauchamp v. Board of Supervis- ors, 1238, 1242, 1487, 1577. Beauchamp v. Marquis of Huntley, 114, 115. Beauchamp r. Putnam, 100. Beauchamp v. Supervisors, 1238, 1242, 1487, 1577. Beaudry v. Felch, 169. Becher v. Wells F. M. Co., 1225. Beck V. Allen, 532. Beck V. Fransham, 176, 252. Beck V. Ry. Teamsters' Union, 34, 1410, 1411, 1412, 1413, 1415, 1416, 1419. Becker v. Anderson, 1370. Becker v. L. & M. S. Ry. Co.. 12. Becker v. McGraw, 50, 669. Beckford v. Kemble, 114, 116. Beckwith v. Blanchard, 55. Beddow r. Beddow, 60, 94. Bedford Springs Co. v. McMeen, 1232. Beebe r. Guinault, 15, 1643. Beebe v. Robinson, 1325, 1328. Beecher v. Bininger, 38, 281. Beedle v. Bennett, 926. Beeson v. Beeson, 1630. Beeson v. City of Chicago, 566. Behn v. Young, 24. ARE TO THE PAGES. Behrens v. McKenzle, 1629. Beidler v. Kochersperger, 460. Bein v. Heath, 1604, 1606. Belcher v. Steele, 1640. Belding x\ Turner, 916. Belfast Shipowners Co., In re, 114. Belknap v. Belknap, 1334, 1335. Belknap v. Schild, 923. Bell V. Calhoun, 1101. Bell V. Chadwick, 666. Bell V. City of Platteville, 1282. Bell r. Craig, 1373. Bell V. Francke, 1385. Bell V. Gamble, 84. Bell V. Hull & Selby R. Co., 1480, 1486. Bell V. Locke, 1051, 1052. Bell V. Ohio & P. R. Co., 680, 792. Bell V. Riggs, 705. Bell V. Romaine, 107. Bell V. Singer Co., 970. Bell r. Walker, 963. Bell V. Whitehead, 956. Bell V. Williams, 225. Bellevue Imp. Co. v. Village of Bellevue, 441. Bellinger v. White, 495. Bellona Company's Case, 1486. Belmore v. Belmore, 1404. Belohradsky v. Kuhn, 1112. Beman v. Rufford, 1204, 1208, 1221. Bemis r. Gannett, 1595. Bemis r. Upham, 771, 801. Bendelow v. Guardians, 737. Benedict v. Benedict, 1608, 1609. Benn v. Chehalis County, 498. Benn v. Leclerq, 1002. Benner v. Junker, 735. Benner r. Kendall, 357. Bennet v. Musgrove, 152, 318, 1397, 1398. Bennett v. Brown, 261. Bennett r. Hetherington, 1273, 1642. Bennett v. Kimball, 1374. Bennett v. Lambert, 1630. 2X1V TABLE OF CASES CITED. THE REFERENCES Bennett v. McFadden, 350, 1476. Bennett v. McKinley, 1020, 1022. Bennett v. Murtagh, 836. Bennett i\ Seligman, 816. Bennett Bros Co. v. Congdon, 1644, 1646. Bensley v. Mountain, 602. Bentley v. Joslin, 1600. Bently v. Bates, 640. Bently v. Dillard, 135. Benton v. Roberts, 169. Berger o. Armstrong, 1181. Berkeley r. Brymer, 1566. Berlin Machine Works v. Perry, 1159, 1175. Berliner Gramaphone Co. v. Sea- man, 1093, 1095, 1148, 1663, 1664, 1668. Bernard v. Meara, 646. Berry v. Berry's Heirs, 1528. Bertram v. Sherman, 1655. Bessette v. Conkey Co., 1423, 1449, 1451, 1666. Bethune v. Wilkins, 669. Bettison v. Jennings, 1483. Bettman r. Harness, 21, 664. Betts V. DeVitre, 922. Betts );. Williamsburgh, 517. Beveridge v. Lacey, 725, 1532. Beverly v. Sabin, 442. Bibb V. Hitchcock, 268. Bickford v. Skewes, 887, 1486. Biddle i\ Ash, 825. Biddulph /-. Vestry of St. George, 747. Bidwell r. Huff, 472, 527, 531. Bierer /;. Hurst. 703. Big Mountain Iron. Co.'s Appeal, 384, 385, 386. Bigelow V. Andress, 97, 152, 1397. Bigelow V. Hartford Bridge Co., 725, 726. 1532. Blggerstaff v. Hoyt, 1379. Biggs V. Rnckingham, 1323. Biggs r. Head, 90. ARE TO THE PAGES. Bigham v. Gorham, 196, 198. Bill V. Sierra Nevada Co., 41, 1209. Billard <;. Erhart, 785, 1425. Billingslea v. Gilbert, 53, 54, 1511. Billups V. Sears, 137. Binford c. Boardman, 93. Bingham v. City of Walla Walla, 556. Bininger i\ Clark, 1357. Binney's Case, 1193. Bird r. Brancher, 1445. Bird r. Lake, 1120. 1121. 1178. Birdsall v. Tiemann, 1142. Birdseye v. Village of Clyde, 523, 525. Birmingham v. Cheetham, 1340. Birmingham C. Co. v. Loyd, 695. Birmingham M. & M. Co. v. Mutual L. & T. Co., 1502, 1503. Birmingham M. R. R. Co, v. City of Bessemer, 1500. Birmingham & P. M. S. R. Co. v. Birmingham S. R. Co., 859. Birmingham T. Co. r. Birmingham R. & E. Co., 565, 604, 605. Birmingham T. Co. r. Southern B. T. & T. Co., 576. Birmingham Vinegar B. Co. . v. Powell, 1025, 1027. Bishop ('. Baisley, 695. Bishop V. Moorman, 242, 344. Bishop V. Rosenbaum, 75. Bishop of Chicago v. Chiniquy, 382. 383. Bishop of London r. Web, 644, 645. Bissell C. S. Co. r. Goshen S. Co., 1662, 1668, 1669, 1670. Bitting's Appeal. 829. Bixler r. Summerfield, 1204, 1205, 1213. Black V. Delaware & R. Co., 1213. Black r. Good Intent Tow-boat Co., 4. Black r. Huggins, 1479. Black r. Smith, 258. TABLE OF CASES CITED. XXV THE REFERENCES Blackburne v. Somers, 775. Blackshire c. Atchison, T. & S. F. R. Co., 556. Blackwell r. Crabb, 1074. Blackwell (-. Wright, 1023, 1074. Blackwell M. Co. v. McElwee, 1502. Blackwood (;. Van Vleet, 354, 631. Blagen r. Smith, 749. Blagrave v. Blagrave, 1123. Blaine v. Brady, 716. Blair v. Reading, 1631, 1635. Blaisdell v. Stephens, 766. Blake v. Blake, 1425. Blake v. Brooklyn, 517. Blake v. Greenwood Cemetery, 919. Blake r. White, 1377. Blakemore v. Glamorganshire, 3, 8. Blakemore i\ Stanley, 1136. Blakeney v. Hardie, 67. Blakeslee v. M. P. R. Co., 51. Blakeslee r. Murphy, 222, 223, 225. Blakey v. Kurtz, 16, 910. Blakey v. National Mfg. Co., 883. Blanc V. Meyer, 468. Blanchard v. Doering, 843. Blanchard v. Sprague, 909, 910. Blanton i\ Merry, 1317. Blanton r. Southern F. Co.. 1322. Blatchford r. Ross, 1211. Blessing v. City of Galveston, 529. Bliss V. Greeley, 840. Bliss V. Kennedy, 830. Bliss V. Rice, 770 Blizzard v. Nosworthy, 387, 1555. Blodgett i\ Northwestern El. R. Co.. 563. Blofleld r. Payne, 1050. Blomfield r. Eyre, 53. Blondheim v. Moore, 51. Blood i: Blood, 22. Blood V. Martin, 1447. Bloomfield v. Snowden, 1551. Bloomfield G. M. Co., In re. 1467. Bloomingdale ?•. Barnard, 421. Bloss, In re. 279. ARE TO THE PAGEa. Bloss (;. Hull, 139. Bloss i\ Tacke, 1495. Blount c. Societe Anonyme, 882, 883, 886, 887, 1668. Blow r. Taylor, 1483. Blue Jacket C. C. Co. v. Scherr, 441, 466, 468. Blum f. Loggins, 1498. Blum r. Schram, 1401. Blundon o. Road Commissioners, 1485. Blunt r. Carpenter, 540. Blunt c. Patten, 957, 977, 993. Blyth L\ Peters, 165. Board v. Texas & P. R. W. Co., 1311. Board of Commissioners v. Barker, 441. Board of Commissioners r. Dailey, 468. Board of Commissioners v. Elston, 467. Board of Commissioners v. Gillies, 1238, 1268. Board of Commissioners r. Hall, 539. Board of Commissioners r. Spang- ler. 1276. Board of Commissioners r. State, 1262. Board of Commissioners r. Thorn, 1272. Board of Education v. Booth, 1245, 1246. Board of Education r. Guy, 544. Board of Education r. Franklin, 408. Board of Education r. Holt, 1245. Board of Liquidation r. McComb, 1324. Board of Supervisors r Circuit Judge, 23. Bobins r. Latham, 14. Boden r. Dill. 1602. Wayne XXVI TABLE OF CASES CITED. THE REFERENCES Bodman v. Lake Fork Drainage District, 43. Bodwell l: Crawford, 399. Boedicker v. East, 685. Bogart c. City of Elizabeth, 451. Bogert i: City of Elizabeth, 441. Bogert V. Haight, 50, 1552. Bogert V. Jackson Circuit Judge, 23. Bogey f. Shute, 627, 628. Boggess V. Lowrey, 316. Bogue r. Houlston, 951. Bohan v. Casey, 1630. Bohlman v. Green Bay & L. P. R. Co., 602. Bohlman (;. Green Bay & M. R. Co., 602, 604. Bohn V. Bogue, 957. Boinay r. Coats, 245, 339, 1652. Boker r. Curtis, 165. Bolander r. Peterson, 1044. Boley V. Griswold, 133, 238 Boiling V. Tate, 1622, 1631, 1635. Bolton v. London School Board, 1496. Bolton r. McShane, 1291. Bonaparte /'. Camden & A. R. Co., 602, 603, 604. Bonaud v. Genesi, 1644. Bond r. Kenosha, 467. Bond V. Penn. Co., 613. Bonnard v. Perryman, 969. Bonnel v. Allen, 634. Bonner v. Great Western R. Co., 822. Bonnett v. Sadler, 399, 756 Bonser v. Cox, 1376. Boone v. Small, 159. Booraem v. North H. C. R. Co., 579. Boosey r. Fairlie, 1011. Boosey v. Whight. 1013. Booth r. Alcock, 821. I'.ooth r. Garolly, 921. Booth V. Woodbury, 542. ARE TO THE PAGES. Booth & Co. V. Raymond, 445, 452. Bootle V. Stanley, 1446. Bordentown Road r. Camden R. Co., 731. Borland v. Thornton, 184. Borough of Stamford v. Stamford H. R. Co., 563. Borron v. Sollibellos, 403. Borthwick v. Evening Post, 1087. Bosley v. McKim, 24. Bosley v. Susquehanna Canal, 3, 7, 1455. Bostic V. Young, 143, 144, 344. Bostock V. North Staffordshire R. Co., 779. Boston i\ Nichols, 1569. Boston Diatite Co. v. F. M. Co., 970. Boston F. Co. v. New Jersey Zinc Co., 1491. Boston & L. R. Co. v. Salem & L. R. Co., 855, 856, 865. Boston & M. R. Co. v. Sullivan, 662, 673. Boston Water P. Co. v. Boston & W. R. Co., 856, 865. Bostwick V. Elton, 1406. Bosworth V. Norman, 725. Boucicault v. Chatterton, 997. Boucicault 'V. Delafield, 997. Boucicault r. Fox, 1001. Boucicault v. Hart, 990, 997, 1001, 1007. Boucicault v. Wood, 934, 993, lOOL Boughner r. Town of Clarksburg, 1291. Bouldin i\ Alexander, 240, 344. Bouldin r. Mayor, 495, 511, 530. Bolnois P. Peake, 1031. Boultbee v. Stubbs, 1375, 1376, Boulton r. Bull, 900. Boulton v. Brooklyn, 500, 1324, Bovill r. Crate, 910. Bowdon r. McT^cod. 292. Bowen r. Cl-ark, 146. TABLE OF CASKS CITED. XXVll THE REFERENCES Bowen v. Eichel, 287. Bowen v. Mauzy, 705, 707. Bowen v. Mayor of Greensboro, 1280. Bowers o. Pacific Coast D. & R. Co., 895. Bowers ;;. San Francisco Bridge Co., 901. Bowes r. Hoeg, 1213, 1542. Bowes V. Law, 1136. Bowie, In re, 273, 280. Bowie V. Smith, 1543. Bowles V. Orr, 114. Bowling V. Crook, 663. Bowman v. McGregor, 176. Bowser v. Maclea.i, 678. Bowyer v. Creigh, 185, 186. Boyce v. Woods, 162. Boyce's Ex'rs v. Grundy, 47, 170, 366. Boyd V. Brown, 923. Boyd V. Chesapealve, 216. Boyd r. Lofton, 328. Boyd I'. Murray, 40, 1372. Boyd r. State, 1446. Boyd r. Weaver, 144, 148, 178. Boyd i\ Wiggins, 445. Boyd r. Woolwine, 848, 852. Boyden r. Bragaw, 667. Boyden r. Wall^ley, 737. Brackebusli r. Dorsett, 1482, 1589. 1595. Bradbury r. Beeton, 939, 1073. Bradbury v. Dickens, 1358. Braddock Glass Co. v. Macbeth, 923. Bradfield v. Dewell, 829. Bradford r. Peckham, 1164, 1165, 1466, 1496. 1564, 1568. Bradford r. San Francisco, 1236. Bradish r. Lucken, 482. Bradley i\ Commissioners, 1335. Bradley r. Eccles, 885. Bradley & H. M. Co. v. Charles Parker Co., 884. ARE TO THE PAGES. Bradshaw v. City of Omaha, 522. Bradshaw v. Combs, 1375. Bradshaw r. Miners' Bank, 1381. Brady v. Johnson, 146. Brady v. Lawless, 98. Brady v. Sweetland, 1331, 1332. Brady i\ Waldron, 434, 658. Braham r. Beachim, 1026. Braham c. Bustard, 1021, 1032, 1072. Brake v. Pajne, 268. Brammer c. Jones, 915, 1490. Bramwtll r. Guheen, 498, 500. Bramwell v. Halcomb, 959, 983. Bramwell v. Lacy, 1129. Branch r. Supervisors, 50. Branch Turnpike Co. r. Supervis- ors, 1552. Brandirff v. Harrison Co., 478, 546. Brandreth v. Lance, 966, 970. Brannum v. Ellison, 366, 367. Brantley r. Wood, 412. Brass r. Rathbone, 50. Brass & Iron Works Co. v. Payne. 1356. Brauns v. Glesige, 4, 395, 1106. Brawner v. Franklin. 109, 389. Bray v. Fogarty, 1120. 1128. Bray v. Poillon, 1590, 1628. Breckinridge i'. McCormick, 157. Breeze r. Haley, 54, 478. Brem v. Houck, 1338, 1343. Brennan v. Emery B. T. Co., 1020, 1022. Breon v. Strelitz, 423. Bresnahan v. Tripp G. L. Co., 897. Bresnehan v. Price, 196. Brevard's Ex'rs r. Jones, 1384, 1386. Brevoort v. Detroit, 1264. 1440. Brewer r. Day, 1477, 1499. Brewer v. Jones, 209. Brewer v. Kidd, 1336, 1436. Brewer i\ Lamar, 1157, 1161. Brewers' Case, 1347. Brewster r. Stratman, 1200. Brice v. Taylor, 1368. XXVlll TABLE OF CASES CITED, THE REFERENCES Brick V. Burr, 36, 133, 135. Bridge Company v. Commissioners of Wyandotte Co., 458, 546, 547. Bridgers v. Morris, 413. Bridges v. Robinson, 1112. Bridson v. Benecke, 900, 910. Bridwell v. McNair, 1644. Briesch r. McCauley, 201. Briggs V. Wayne Circuit Judge, 23. Brigliam r. White, 422, 1502. Brill v. Peckham M. T. Co., 1668. Brill V. Singer M. Co., 1046. Brinson c. Wessolwsky, 182. Briscoe v. Allison, 468. Bristol v. Hallyburton, 352. Bristol V. Johnson, 465, 546. Brittain c. McLain, 367. Britton's Adm'r r. Hill, 685. Broadbent r. Imperial Gas Co., 740. Broadnax c. Baker, 874. Brock V. Connecticut, etc., 590. Brock V. Dole, 398. Brockman r. City of Creston, 1243, 1315, 1316. Broder v. Laillard, 746. Brodnax v. Groom, 517, 518. Bromley v. Holland, 83, 102. Bronenberg r. Commissioners of Madison Co., 537, 1301. Brooke ;;. Chitty, 948. Brooklyn R. Co. v. Coney Island R. Co., 868. Brooklyn White Lead Co. v. Mas- ury, 1032, 1061. Brooks V. Bicknell, 927, 1568. Brooks 1'. Curtis, 749. Brooks r. Dent, 1369. Brooks V. Montgomery, 253, 254. Brooks V. Norcross, 880. Brooks V. O'Hara, 51, 1540. Brooks V. Purton. 1560. 1572. Brooks V. Reynolds, 1404. Brooks r. Twitchell, 194. Broome v. New York & N. J. T. Co., 5, 789. ARE TO THE PAGES. Brower r. Buxton, 415. Brower c. Kantner, 1326. Brown v. Ashley, 829. Brown v. Baldwin, 1631, 1635. Brown v. Best, 766. Brown v. Brown, 1392, 1393. Brown r. Chapman, 180, 267. Brown v. Chase, 423. Brown r. Cherry, 407. Brown v. City of Frankfort, 1106. Brown r. City of Seattle, 559. Brown v. Concord, 444, 456, 1237. Brown v. Easton, 1582. Brown c. Edsall, 1520. Brown v. Folwell, 628. Brown v. Galena M. & S. Co.. 1595. Brown v. Gorton, 1621. Brown v. Herron, 444, 452, 467. Brown v. Hinkley, 881. Brown v. Jacobs Pharmacy Co., 1415. Brown v. Jones, 1613, 1614, 1630, 1636. Brown v. Keeney Association, 1654. Brown v. Kling, 1157. Brown v. Luehrs, 136, 1551. Brown v. Manning, 813, 815, 1529. Brown v. Merrick Co., 1296. Brown r. Newall, 1479, 1480. Brown v. Pacific Cable Co., 21. Brown v. Pacific Company, 1527. Brown v. Pacific Mail Steamship Co., 1231. Brown v. Parker, 271. Brown v. Prescott, 322. Brown v. Reding, 1270. Brown t\ School District, 468. Brown r. Stewart, 433, 657. 1477. Brown v. Street, 153. Brown v. Trustees of Catlettsburg, 1257. Brown r. Wilson, 210, 1552. Brown Chemical Co. v. Meyer, 1020. 1036. TABLE OF CA«ES CITED. XXIX THE REFERENCES Brown, Adm'r, v. Thornton, 402, 403. Brown's Adm'r v. Tyler, 1616. Brown's Appeal, 45, 1104. Brown's Case, 30. Browne v. Edwards & McC. L. Co., 1595. Browne v. Niles, 400. Browne v. Roberts, 1405. Brownfield v. Brownfield, 1611. Brownfield v. Houser, 1238, 1313. Browning t>. Camden & A. R. Co., 602, 603. Browning v. Lavender, 351. Browning t\ Porter, 1618. Brownlee v. Fenwick, 1633. Bruce v. Pittsburg, 57, 1276. Bruce v. President, 708. Brumley r. Fanning, 659. Brummel v. Hurt, 240, 344. Brundage v. Deardorf, 310. Brundred i\ Paterson Machine Co., 1547. Bruner v. Bryan, 1325, 1328. Brunnen v. Somborn, 1061. Brunnenmeyer v. Buhre, 305. Bruschke v. Der Nord Chicago S. Varein, 1208. Brush r. City of Carbondale, 1290. Brush Electric Co. v. Accumulator Co., 898. Brush Electric Co. v. Western Electric Co., 1669. Bryan v. King, 1392. Bryant, In re. 1434. Bryant v. The People, 57. Brydges v. Stevens, 650. Buchanan v. Alwell, 366. Buchanan v. Grand River Co., 762. Buchanan v. Howland, 881, 927. Buchanan v. Lorman, 243, 362, 371. Buchanan v. Marsh, 318. Buchanan v. Nolin, 228, 1102. Buchner r. Chicago, M. & N. R. Co.. 614. ARE TO THE PAGES. Buck V. Backarack, 51. Buck's Stove Co. v. Kiechle. 1025. Buckley v. Corse, 55, 1551, 1559. Bucknall v. Story, 500. Buckner v. Bierne, 1478. Buckstaff V. City of Oshkosh, 1532. Budd /;. Long, 344. 345. Buffington v. Harvey, 1652. Buford D. Keokuk N. L. P. Co., 1630, 163L Buhlman v. Humphrey, 1448. Buie V. Crouch, 146. Bull y. Bodie, 387, Bullard v. Eckman, 1541. Bullard v. Harkness, 1631, 1635. Bullen V. Ovey, 1445. Bullion, Beck & C. M. Co. r. E. H. Mining Co., 1647, 1648. Bullitt's Ex'rs v. Songster's Adm'rs, 100, 362, 370, 374. Bumpus V. Platner, 362, 370. Bunbury v. Bunbury, 113, 116. Bundy v. Summerland, 469. Bunker v. Locke, 433, 657. Buntain v. Blackburn, 152. Burbank v. Fay, 836. Burch 17. Dooley, 164. Burch V. West. 148, 269. Burdett v. Hay, 1553. Burdon C. S. R. Co. v. Leverich, 1093. Burge V. Burns, 151. Burgen v. Sharer, 1614. Burges v. Lamb, 649. Burgess v. Burgess, 1041. Burgess r. Davis, 1326, 1329. Burgess v. Hills, 1067. Burgess v. Smith, 117. Burgess v. Wheate, 23. Burgett V. Norriss, 449. Burham ??. San Francisco F. M Co., 1216. Burk p. Piatt, 1387. Burk r. Simonson, 766. Burke r. Cassin, 1061. XXX TABLE OF CASES CITED. THE REFERENCES Burke v. Ellis, 62. Burke v. Pinnell, 287. Burke v. Speer, 488. Burke v. Wall, 851. Burleigh Rock Drill Co. v. Lobdell, 909. Buries v. Popplewell. 1369, 1405. Burlington, C. R. & N. Ry. Co. v. Dey, 1646. Burlington & M. R. R. Co. v. Spearman, 501. Burlington & M. R. Co. v. York Co., 468. Burne v. Madden, 1120. Burnes v. Mayor, 441. Burness v. Multnomah County, 1238, 1268. Burnet r. Cincinnati, 442. Burnett v. Chetwood, 971. Burnett v. Craig, 1253, 1255. Burnett r. Nicholson, 805, 1601. Burnett f. Phalon, 1033. Burney v. Ryle, 1153, 1154. Burnham v. Kempton, 762, 771. Burnham v. Rogers, 468, 534. Burnley v. Cook, 664. Burns v. Bidwell, 1387. Burns v. Mearns, 669. Burpee v. Smith, 189, 193. 1527. Burrel v. Associate Reformed Church, 296. Burroughs v. Jones, 1599. Burroughs v. Saterlee, 837. Burrows v. Jamereau, 1111. Burrus v. City of Columbus. 50, 617. Burton r. Duffield, 384. Burton r. Marshall, 1148. Burton «. Stratton, 1055. Burton v. Wellen, 105. Burton Stock Car Co. r. Traeger, 455, 475. Bnrwell r. rommissimers, 754. Bury r. Bedford, 1054. Busch /•. Jones, 926. ARE TO THE PAGES. Busenbark u. Busenbark, 1390. Busey v. Hooper, 1225 Bush V. Hicks, 388. Bush V. Kirkbride, 1629. Bush V. Wolfe, 1284. Bushby v. Munday, 114. Bushnell v. Robeson, 736, 757. Buskirk v. King, 9, 635, 641. Bustamente v. Stewart, 1635. Buster v. Holland, 146. Butch V. Lash, 337. Butchers Benevolent Association V. Cutler, 106. Butchers W. & S. H. Co. v. Howell. 1599. Butler V. Burleson, 1157, 1160. Butler V. City of Detroit, 511. Butler V. Egge, 16. Butler V. Johnson, 1367. Butler r. Mayor, 737. Butler V. Rahm, 422. Butler V. White, 1330. Butman v. James, 642. Butt D. Colbert, 875. Butt r. Imperial Gas Co., 739. Butt V. O'Neal, 220. Butte & Boston C. M. Co. v. M, O. P. Co., 1540, 1644. Butterfoss r. State, 736. Butterworth r. Robinson, 952, 964. Byam v. Cashman, 1599. Byne v. Byne, 1469. Bynum v. Commissioners of Burke Co., 1260. Byram r. Detroit, 524, 525. Byrne r. Brown, 382. Byrne r. Drain, 500. c Cady V. Schtiltz, 1025, 1028. Caird r. Campbell. 1497. Cairo & F. R. Co. v. Titus, 133, 136, 1581. TABLE OF CASES CITED. XXXI THE REFERENCES Cairo & Vincenues R. Co. v. The People, 594. Calcraft c. West, 859. Calderwood c. Trent, 55, 218, 1558, 1559. Caldwell r. Cline, 1149. Caldwell v. Commercial Warehouse Co., 93. Caldwell /'. Stirewalt, 1504. Caldwell i: Vanlissengen, 887, 928. Calhoun r. McCornack, 4. California Fig Syrup Co. v. Stearns & Co., 1079. California Fruit Canners' Assn. v. Myer, 1026, 1028. California & O. Land Co. v. Gowen, 476. Califoi^ia Pacific R. Co. v. Central Pacific R. Co., 622. California Syrup of Fig Co. v. Stearns & Co., 1020. Calkin v. Manhattan Oil Co., 1654. Callaghan v. Myers, 936, 937, 953, 955. Callan v. McDaniel. 1461. Callanan v. Gilman, 785. Callister v. Kochersperger, 517. Calmelet v. Sichl, 323. Calvert v. Gason, 645. Calvert v. London, 1376. Calvert v. State, 8, 1425. Camden & A. R. Co. r. Atlantic City P. R. Co., 589. Camden & A. R. Co. v. Stewart, 109, 382. Camden Horse R. Co. v. Citizens Coach Co., 868. Cameron r. White, 315, 316. Camp ('. Bates, 632. Camp r. Bryan, 1618. Camp t'. Chas. Thacher Co., 398. Camp V. Dixon, 688. Camp V. Matheson, 97. Camp r. Simpson, 448. Campbell r. Briggs, 136 ARE TO THE PAGES. Campbell v. Campbell, 57. Campbell v. Edwards, 208. Campbell v. Gilman, 1110. Campbell v. His Creditors, 1488. Campbell v. Houlditch, 115. Campbell v. Metcalf, 1635. Campbell v. Morrison, 50, 1540, 1552. Campbell r. Paris & D. R. Co., 1299, 1300. Campbell v. Poultney, 1230. Campbell v. Scott, 963, 979, 988. Campbell v. Seaman, 742, 752. Campbell v. Tarbell, 1455. Campbell's Case, 273, 278. Campbell P. & M. Co. r. Manhattan Ry. Co., 908, 912. Canadian & A. M. & T. Co. o. Fitzpatrick, 1596, 1605. Canal Co. v. Clark, 1023, 1061. Canal Commissioners r. Village of East Peoria, 1245, 1485. Canal Company r. Railroal Com- pany, 581. Candee v. Deere, 1023, 1033, 1034, Candler r. Pettit, 317. Canfield v. Andrew, 764. Canfield v. Bayfield County, 457. Cannon r. Barry, 653. Canton r. Northern R. R.. 1095. Canton Cotton W. Co. r. Potts, 780. Cantrell v. Cobb, 364. Cape V. Plymouth Church, 293. Capehart v. Biggs, 412. Capehart v. Etheridge, 161. Capehart v. Mhoon, 1500. Cape May & S. L. R. Co. r. John- son, 1425, 1428, 1429, 1434. Caperton r. Landcraft, 247, 416. Cape Sable Company's Case, 212. Capner v. Flemington Mining Co.^ 1189, 1512. Carbon C. & M. Co. r. Drake, 552, Cardinal v. Eau Claire L. Co., 146, 179, 251. XXXll TABLE OF CASES CITED. THE REFERENCES Cardinal v. Molyneux, 308. Cardwell v. American Bridge Co., 796, 798. Carey v. Smith, 1560. Carillo c. Shook, 1001. Carlen o. Drury, 1353. Carlin v. Hudson, 240, 344, 345, 1625. Carlin v. Wolff, 38. Carlisle v. South Eastern R. Co., 1214. Carlisle v. Stevenson, 678. 685. Carlton v. Newman, 546. Carlton ;;. Simonton, 1378. Carmel N. G. & I. Co. r. Small, 1232. Carmichael v. City of Texarkana, 774. Carmien v. Cornell, 1205, 1209. Carnan v. Bowles, 961, 975. Carnes v. Heimrod, 1633. Games v. Nesbett, 1183. Carney v. Hadley, 667, 688. Carney v. Village of Marseilles, 169, 172. Caro V. Pensacola City Co., 341. Carolus v. Koch, 137. Carpenter x\ Black Hawk Co., 118. Carpenter v. Capital^ Electric Co., 575, 662. Carpenter v. Easton & A. R. Co., 617. Carpenter v. Fisher, 1606. Carpenter v. Grisham, 602. Carpenter v. Talbot, 419. Carr v. Gordon, 1325, 1329. Carr v. Lee, 103. Carr k. Morice, 1553. Carr /■. Silloway, 1114. Carr r. Weld, 1509. Carrico v. Froman, 367. 368. Carrington r. Florida R. Co., 1496 Carrington r. Holahird. 189. 191 287. 288. Carroll r. Campboll. 874. ARE TO THE PAGES. Carroll County v. Iowa R. L. Co., 1631. Carroll v. Farmers & M. Bank, 72, 117, 1569. Carroll v. Readheimer, 1619. Carron, etc. v. Maclaren, 114. Carson v. Dunham, 121. Carson v. Ury, 1062. Carstaedt v. U. S. Corset Co., 1466. Carswell v. Macon, 85. Carter v. City of Chicago, 1250, 1258, 1287. Carter v. City of New Orleans, 41. Carter v. Griffin, 216. Carter v. Hallahan, 1645. Carter v. Mulrein, 1586. Carter v. Washington, 1570, Carthan v. Lang, 1241. Cartier v. Carlile, 1067. Cartrlght v. Briggs, 363. Cartwright v. Bamberger, 1401, 1478. Caruthers v. Harnett, 1273, 1336. Caruthers v. Hartsfield, 221. Carver v. Brady, 412. Carver v. Carver, 1646. Cary v. Domestic S.-B. Co., 901. Gary v. Faden, 978, 981. Cary Mfg. Co. v. Acme Flexible Clasp Co., 1467. Cary Mfg. Co. v. Haven, 898. Casady v. Bosler, 408. Casamajor v. Strode, 636, 1522. 1526. Casanave v. Spear, 326. Cascaden v. City of Waterloo, 1238. Casey v. Cincinnati Typographical Union, 1410, 1412, 1415. Casey v. Independent District, 510. Cass ?'. Demarest, 1388. Cassell /'. Scott, 217. Castellain v. Blumenthal. 1567. Castoriano ;■. Dupe, 1642. Caswell r. Davis. 1061. TABLE OF CASES CITED. XXXUl THE REFERENCES Caswell v. Gibbs, 1180. Gate V. Devon & E. C. N. Co., 968, 974. Cater v. Northwestern T. E. Co., 574. Catholicon Hot Springs Co. c. Fer- guson, 5, 21, 335. Catlett r. McDonald, 1488, 1540, 1541. Catt c. Tourle, 1135, 1140. Gattell V. Loury, 538. Cattell V. Nelson, 1563. Caulfield v. Curry, 1498. Cecil Natl. Bank o. Thurber, 38. Celluloid Mfg. Co., v. Arlington Mfg. Co., 921. Celluloid Mfg. Co. d. Read, 1032. Centaur Co. v. Heinsfurter, 1045. Centaur Go. v. Killenberger, 1047. Centaur Co. v. Neathery, 1047, 1072, 1644. Center v. Hoag, 1613. Center Co. v. Black, 444, 454. Center Township v. Hunt, 544. Central B. Co. v. Lowell, 856, 865. Central City H. R. Co. v. Fort Clark H. R. Co., 589. Central Pacific R. Co. v. Corcoran, 444. 458. Central R. Co. v. Collins, 1204. Central R. Co. v. Pennsylvania R. Co., 598, 1191. Central Stock «6: Grain Exchange V. Board of Trade, 1201. Central Trust Co. r. Moran, 4, 5. Central Union T. Co. r. State, 1425, 1440, 1647. Centreville & Abington T. Co. v. Barnett, 26. Chadbourne v. Zilsdorf, 573. Ghadoin v. Magee, 101, 317. Chadwell v. Jordan, 11, 72, 73. Chaffee v. Granger, 270. Ghaffin r. City of St. Louis, 123. ARE TO THE PAGES. Chaffraix v. Board of Liquidation, 1241. Chaffraix c. Harper, 144. Chain Belt Co. o. Von Spreckelsen, 1154. Chalk V. Wyatt, 676. Challend«r v. Royle, 970. Challiss V. Commissioners of At- chison Co., 444, 452. Challiss r. Davis, 876. Chamberlain, Ex parte, 484. Chamberlain v. City of Tampa, 1238. Chamberlain v. Cleveland, 529. Chamberlain v. Sutherland, 54. Chambers v. Alabama Iron Co., 693, 1104. Chambers v. Cannon, 155. Chambers v. Cramer, 706, 707, 754. Chambers r. King Wrought Iron Bridge Manufactory, 222. Chambers v. Penland, 179. Chambers r. Robbins, 194. Chambers, Calder & Co., In re, 283, 284. Chamblin v. Slichter, 72. 1527. Champ V. Kendrick, 683, 1543. Champion r. Sessions, 557, 567, 572. Champlin v. Mayor, 1188, 1293. Champlin i: Morgan, 567. Chance v. East Texas R. Co., 845. Chapel V. Hull, 1467. Chapin v. James, 253, 254. Chapman r. City of Rochester, 775. Chapman v. Mad River R. Co., 1207. Chapman r. Railroad Companies, 1207. Chapman v. Scott, 173. Chapman v. Toy Long, 698. Chappell r. Boyd, 631. Chappell r. Cox, 142, 346. Chappell r. Davidson, 940, 1012. 1053. Chappell V. Funk. 736. XXXIV TABLE OF CASES CITED. THE REFERENCES Chappell /■. Purday, 978, 1015, Chappell c. Slieard, 939, 982, 984, 1012, 1013, 1051, 1053, 1087. Cliarles River Bridge r. Warren Bridge, 858. Charleston & S. Ry. r. Johnson, 797. Charter Oak Life Ins. Co. r. Cum- mings, 337. Chase i: Cheney, 297, 299. Chase v. City Treasurer, 350. Chase r. Manhardt, 207, 208, 1492. Chase i: Sanborn, 936, 953, 955. Chase v. Tuttle, 970. Chase v. Wesson, 888. Chattanooga Terminal Ry. v. Fel- ton, 4. Chavez v. McKnight. 1385. Cheavin v. Walker, 1046, 1070, 1080. Chedworth v. Edwards, 1534. Cheek r. Taylor, 204. Cheesman r. Shreve, 693. Chegary v. Scoheld, 1657. 1659. Cherokee Iron Co. v. Jones, 1204, 1206, 1221, 1222. Cherry v. City of Rock Hill, 725, 728.' Cherry v. Stein, 812. 826. Cherry r. Western W. I. E. Co., 1576. Chesapeake, 0. & C. Co. v. Young, 13, 663. Chesapeake & Ohio Fuel Co. r. United States, 1186. Chesapeake & 0. R. Co. iK Bob- bett, 610, 836. Chesapeake & O. R. Co. r. Huse, 1542. Chesapeake & O. R. Co. r. Miller, 1341. Chesapeake & 0. R. Co. i\ Patton, 38, 610, 1577. Chesapeake & P. T. Co. r. Mayor, 1297. ARE TO THE PAGES. Chester v. Apperson, 213, 229, Chester Traction Co. v. Philadel- phia W. & B. R. Co., 10. Chesterfield c. Bond, 1554. Chestnutwood o. Hood, 1299. Chetwood r. Brittan, 1474, 1502. Chicago ;:. Frary, 445. Chicago & A. B. Co. v. Pacific M. T. Co., 1188. Chicago & A. R. Co. r. Maddox, 556. Chicago & Atlantic R. Co. v. New York, L. E. & W. R. Co., 595. Chicago, B. & Q. R. Co. r. Board of Commissioners, 469, 470, 476, 477. Chicago, B. & Q. R. Co. r. Bur- lington, C. R. & N. R. Co., 595, 1421. Chicago, B. & Q. R. Co. r. Cass County, 441, 497. Chicago, B. & Q. R. Co. r. City of Quincy, 782, 1531. Chicago, B. & Q. R. Co. r. Cole, 461. 486. Chicago. B. & Q. R. Co. r. Frary, 444. Chicago, B. & Q. R. Co. r. Man- ning, 149. Chicago, B. & Q. R. Co. r. Nebras- ka City, 441, 497. Chicago, B. & Q. R. Co. v. Ottawa, 75, 87, 1253. Chicago, B. & Q. R. Co. /•. Porter, 675. Chicago, B. & Q. R. Co. r. Siders,, 444. Chicago, B. & Q. R. Co. r. W. C. R. Co., 588. Chicago City R. Co. r. Howison, 1614, 1616. Chicago, D. & V. R. Co. /-. Field, 232. Chicago Dollar Directory Co. v. Chicago Directory Co., 979, 1664. TABLE OF CASES CITED. XXXV THE REFERENCES Chicago Gen. Ry. Co. v. C, B. & Q. R. Co., 36, 669, 725, 784. Chicago Marconi Co. v. Boggiano, 1232. Chicago Municipal G. L. & F. Co. r. Town of Lalie, 559. Chicago & N. W. R. Co. v. Borough of Fort Howard, 482, 484. Chicago & N. W. R. Co. v. Chi- cago & P. R. Co., 586. Chicago & N. W. R. Co. v. Dey, 596. Chicago & N. W. R. Co. r. Forest County, 483. Chicago & N. W. R. Co. v. Miller, 479, 523. Chicago Public Stock Exchange v. McClaughry. 50, 667, 669. Chicago, Rock Island & P. R. Co. L\ City of Chicago, 43, 102. Chicago Ry. Co. r. Calumet Ry. Co., 1095. Chicago, St. L. & P. R. Co. v. Eis- ert, 561. Chicago, St. P., M. & 0. R. Co. V. Becker, 596. Chicago Sugar Refining Co., In re, 883. Chicago & S. W. R. Co. r. Swin- ney, 612. Chickering v. Chickering. 1037. Chiara v. Brevoort, 23. Child r. Douglas. 1119. Childress y. Perkins, 2. Chinnerys, In re, 1539. Chipman v. Hibbard, 251. Chipman r. McKinney, 404. Chipman r. Wentworth, 913. Chisholm v. Adams, 459, 515. Chisholm i\ Anthony, 208. Cholmondeley r. Clinton, 90, 1522. Choteau v. Price. 1652. Choynski v. Cohen, 1061. Christensen Engineering Co., In re, 1451, 1452, 1472. ARE TO THE PAGES. Christensen v. Kellogg Switch- board & S. Co., 1410, 1413, 1419. Christian v. City of St. Louis, 14. Christie r. Griffing, 1513. Christie v. Hale, 242, 349, 350. Christopher v. Mayor, 1235, 1236, 1314. Christopher & Tenth Street R. Co. V. Central C. R. Co., 587, 1481. Chuck V. Cremer, 1425. Church V. Joint School District No. 12, 1291. Churton r. Douglas, 1054, 1164. Cicero Lumber Co. v. Cicero, 1250, 1251, 1312. Cihak r. Klekr, 845, 846, 850. Cincinnati I. P. R. Co. v. Telephone Association, 576. Cincinnati, L. & C. R. Co. ;;. Dan- ville & V. R. Co., 622. Cincinnati S. R. Co. <;. Smith, 1251, 1268. Cincinnati Volksblatt Co. v. HofE- meister, 1220. Citizens Bank of Louisiana r. Du- buclet, 1344. Citizens Coach Co. v. Camden Horse R. Co., 13, 36, 588, 1546. Citizens G. L. Co. v. Louisville G. Co., 864. Citizens G. & M. Co. v. Town of Elwood, 573. City Bank r. Crossland, 1406. City Bank v. Skelton, 127. City Council v. Sayre, 441, 468. City Council of Montgomery, Ex parte. 23. City Council of Montgomery v. Lemle, 1292. City Council of Montgomery «. Louisville & N. R. Co., 867. City Loan & Building Association r. Goodrich, 1213. City of Alma v. Loehr, 38. City of Alpena r. Kelley, 23. XXXVl TABLE OF CASES CITED. THE REFERENCES City of Anthony v. State, 549. City of Atlanta v. Gate C. G. L. Co., 87, 88, 1297. City of Atlanta o. Grant, 1215. City of Atlanta r. Holliday, 559. City of Atlanta c. Stein, 1237, 1268, 1269. City of Atlanta v. Warnock, 738. City of Austin v. Austin City Ceme- tery Association, 1256. City of Austin v. McCall, 1268, 1269. City of Bainbridge v. Reynolds, 87, 1253. City of Carlsbad v. Kutnow, 1026. 1027. City of Carlsbad v. Thackeray & Co., 1026, 1078. City of Chicago v. Collins, 19, 79. City of Chicago r. Frary, 445. City of Chicago v. Galpin, 1268, 1276. City of Chicago r. McCoy, 1237, 1238, 1268. City of Chicago v. McDonald, 1268, 1276. City of Chicago v. Nichols, 1237, 1238, 1314. City of Chicago v. Union Building Association, 570, 720, 725 785, 1287, 1312, 1316. City of Chicago i: Ward, 814. City of Chicago r. Wright, 1294. City of Cleburne v. Gulf C. & S. F. R. Co., 1385. City of Cleveland r. Cleveland City R. Co., 1250, 1251. City of Coldvi^ater r. Tucker, 772. City of Council Bluffs r. Stewart, 43. City of Delphi r. Bowen, 444, 452, 467. City of Delphi r. Startzman. 1266. City of Demopolis r. Webb. 782. City of Denver r. Beede, 1253. ARE TO THE PAGES. City of Detroit r. Hosmer. 23. City of Detroit r. Wayne Circuit Judge, 482, 484. City of Eau Claire v. Matzke, 781, 782. City of Emporia v. Bates, 491. City of Emporia v. Soden, 831. City of Evansville v. Pfisterer, 527. City of Fort Wayne v. ShoafE, 530. City of Fort Worth r. Davis, 510. City of Grand Rapids r. Wieden, 736. City of Hutchinson r. Beckman, 88. City of Hutchinson r. Delano, 775. City of Kansas r. Kansas Pacific R. Co., 556. City of Kewanee v. Otley. 704, 774, City of Kokomo v. Mahan, 1286 City of Laredo r. Martin, 874. City of Lawerence v. Killam, 444, 453, 468. 469. City of Logansport v. Carroll, 491, 493. City of Logansport v. La Rose, 522. City of Logansport v. Seybold, 522. Citf of Logansport r. Uhl, 844. City of London Brewery Co. v. Tennant, 820. City of Macon r. Georgia Packing Co.. 1663. City of Madison v. Smith, 1300, 1307. City of Menasha r. Milwaukee & N. R. Co., 598. City of Meridian r. Ragsdale, 469. City of Mobile r. Bienville W. S. Co., 1283. City of Mount Vernon r. Hovey, 539. City of Mt. Carmel v. Shaw, 1245. City of New Albany r. White, 552. City of New Castle r. Raney, 702. City of New Orleans r. Becker, 1249, 1250. TABLE OF CASi:s CITED. XXXVU THE REFERENCES City of New Orleans r. Great Southern T. Co., 1C44. City of New Orleans '". Ruleff, 161. City of New Orleans r. Smith, 161. City of Newport r. Newport L. Co., 864. City of Newton r. Levis, 20. City of Oshkosh f'. M. & L. W. R. Co., 781, 786. City of Ottawa r. Barney, 468. City of Peoria v. Johnston, 1290. City of Peru v. Bearss, 522, 1266. City of Philadelphia's Appeal, 788. City of Portland i'. Oregonian R. Co., 580. City of Quincy r. Bull, 1297. City of Red Wing r. Guptil, 1531. City of Richmond /•. Crenshaw, 514. City of Richmond r. Davis, 1286. City of Richmond r. Smith, 790. City of Rushville r. Rushville N. G. Co., 1256. City of Seymour r. J., M. & I. R. Co., 100, 102. City of Shreveport /•. Flournoy, 177. City of Springfield r. Edwards, 511, 512, 1276, 1313, 1315. City of Staunton v. Mary Bald- win Seminary, 504. City of St. Louis r. St. Louis G. Co., 1607. City of St. Louis r. The Knapp, Stout & Co. Company. 797. City of Taunton v. Taylor, 750. City of Terre Haute /■. Mack, 530. City of Valparaiso r. Gardner, 1277. City of Valparaiso r. Hagen, 776. Civil Service Supply Association V. Dean, 1070. Clack c. White, 847. ARE TO THE PAGES. Clad r. Paist, 49, 50. Clagett r. Salmon, 424, 659. Clagon c. Veasey, 653. Clancy ;;. Roberts, 383. Clapham v. White, 1511. Clark, In re, 281. Clark ly. Bond, 174. Clark V. Borough of Washington, 57. Clark v. C. &. A. I. & L Co., 12. Clark V. City of Providence, 1295. Clark i\ Clark, 820, 1032. Clark V. Cort, 105. Clark V. Dayton, 1275. Clark V. Ewing, 213. Clark V. Ferguson, 908. Clark r. Freeman, 968. Clark V. Henty, 159, 1375. Clark V. Herring, 1653. Clark V. Jeffersonville R. Co., 662, Clark V. Lawrence, 757. Clark r. Martin, 1136, 1137. Clark i). Mayor, 803. Clark r. Town of Noblesville, 1492. Clark V. Village of Dunkirk, 513. Clark V. Wood, 1445. Clark V. W^ooster, 924, 926. Clark (;. Young, 56. Clark's Appeal, 684. Clark and Bininger, In re, 281, 282. Clark Thread Co. r. Wm. Clark Co., 1085. Clarke, Ex parte. 72, 110. Clarke r. Clarke, 112, 340. Clarke v. Freeman, 1076, 1082. Clarke v. Ganz, 441, 482. Clarke r. Hardgrove, 361. 362. 370. 371. Clarke r. Henty. 159, 1375. Clarke r. Hoome's Ex'rs, 155, 1439. Clarke (-. Price. 1147. Clavering r. Clavering, 655. xxxvm TABLE OF CASES CITED. THE REFERENCES Clawson r. Primrose, 826, 827. Clayton r. Attorney-General, 9. Clayton r. Lafargue, 454. Clayton r. Lyle, 1501. Clayton r. Martin, 1589. Clayton f. Shoemaker, 666. Claytor v. Anthony, 1618, 1621. Clegg r. Darragh, 1382. Clegg r. Jones, 695. Cleghorn c. Postlewaite, 474. Clement r. Maddick, 1071, 1085, 1086. Clement r. Wheeler, 648, 649. Clements r. Welles, 1127. Clerk i: Watkins, 1178. Cleveland r. Citizens G. L. Co., 735, 740. Cleveland F. A. T. Co. r. Board of Fire Commissioners, 1264. Cleveland Stone Co. v. Wallace, 1078. Click c. Stewart, 142. Clifton V. Robinson, 1480. Clifton Iron Co. r. Dye, 703. Cliland r. Hedly, 94. Clinch V. Ferril, 347. Clinton, etc., Appeal, 444, 447, 459. Clopton r. Carloss, 216, 217. Clotworthy v. Schepp, 1079. Clowes r. Staffordshire Co., 763. Clum r. Brewer, 900, 914, 91G, 922. Clute r. Potter, 169. Coale /■. Chase, 1501. Coalter c. Hunter, 765, 766. Coast Line R. Co. r. Cohen, 725, 728, 794. Coates r. Caldwell, 1609, 1620. Coates V. Coates, 1629. Coats r. Clarence R. Co., 582. Coat.s r. Holbrook, 1035, 1089. Coa(s worth i). Lehigh V. R. Co., 062. Cobb (. Illinois & St. L. R. Co., 602. 605. ARE TO THE PAGES. Cobb V. Hynes, 147. Cobb v.- Smith, 765, 807. Cobbett V. Woodward, 974. Coburn r. New T. Co., 575. Cochrane v. O'Brien, 71. Cockey v. Carroll, 627. Cocks v. Chandler, 1045. Coe r. Columbus, P. & I. R. Co., 43. Coe V. Jobnson, 337. Coe r. Knox, 430. Coe r. Knox County Bank, 158. Coe r. Louisville & N. R. Co., 596. Coe V. New Jersey M. R. Co., 580. Coe V. Pennock, 592. Coe r. Winnipiseogee Co., 761. 762. Coeur d' Alene C. M. Co. r. Min- ers' Union. 33, 1410, 1412, 1413, 1419. Coffeen r. Brunton, 1033, 1071, 1085. Coffeen r. Chicago, M. & St. P. R. Co., 566. Coffey r. Gamble, 1430, 1481. Coffin r. Coffin, 629, 649. Coffin r. Richards, 1279. Coffman r. Castner, 1023, 1668. Cogburn v. Pollock, 152, 1402. Coggill r. Millburn Land Co., 657. Cogswell V. New York, N. H. & H. R. Co., 743. Cogwill V. Long, 490. Cohen r. Commissioners of Golds- boro, 1253, 1254. Cohen v. Gray, 1286. Cohen v. L'Engle, 1659. Cohen v. Meyers, 1397, 1653. Cohen v. Morris, 1406. Cohen r. Wilkinson, 1204, 1206, 1221. Cohn -v. Lehman, 1596. Cohn V. Wausau Boom Co., 860. Coit r. Freed, 1443. TABLE OF CASES CITED. XXXIX THE REFERENCES Coit V. Horn, 669. Coker v. Birge, 736, 755. Coker v. Monaghan Mills, 127. Coker v. Simpson, 685. Coker r. Whitlock, 437. Colburn v. Buncombe, 1015. Colby i\ Brown, 357. Colby V. Meservey, 1634. Colcord V. Sylvester, 1603. Cole r. Cunningham, 117. €ole V. Duke, 38. Cole V Edwards, 1160, 1163, 1168. Cole V. Sands, 1483. ■Cole Co. V. Virginia Co., 5, 699, 1507, 1536, 1561. Coleman v. Dannenberg, 1079. Coleman v. Gage, 1514, 1515. Coleman v. Glenn, 1325. Coleman v. Hudson, 1481. Coleman r. Hudspeth, 1506, 1507. Coler V. Board of Commissioners, 47. Coles V. Sims, 1138. Colgan V. Danheiser, 1020. Colladay v. Baird, 1035. College C. & R. G. Co. v. Moss, 1545. * Colley V. Duncan, 402, 403. Collier v. Bank of Newbern, 1570. Collier v. Easton, 192. Collier v. Sapp, 1645. Collings V. City of Camden, 1277. Collins V. Castle, 1136. Collins V. City of Keokuk, 455. Collins V. Clayton, 363, 379. Collins V. Fraiser, 159. Collins r. Green, 468. Collins r. Plumb, 1096. Collins r. Sinclair, 1613, 1614, 1629, 1636. Collins V. Sutton, 661, 667. Collins Co. r. Brown, 1089. Collins Co. V. Cowen, 1089. Collinsplatt r. Finlayson, 1026, 1028, 1032. ARE TO THE PAGES. Colliton V. Oxborough, 662. Colman r. Eastern Counties 11. Co., 1204, 1221, 1222. Colson V. Leitch, 225. Coltart V. Ham, 1609. Colton V. Hanchett, 1237, 1241. Colton r. Price, 1325, 1330, 1516. Columbia Mill Co. v. Alcorn, 1023, 1074. Columbia National S. D. Co. v. Miller, 970. Columbia Water Power Co. v. Co- lumbia, 1429, 1430, 1463, 1470. Columbia Wire Co. v. Boyce, 1663. Columbia Wire Co. v. Freeman Wire Co., 882. Columbian Athletic Club r. State, . 33, 710, 717, 731. Columbus. H. W. & T. Ry. Co. r. Burke, 1597, 1598. Columbus Watch Co. v. Robbins, 1668, 1670. Columbus & W^estern R. Co. v. Witherow, 616. Colwell r. Smith, 343. Commercial Bank v. Cabell, 106. Commercial Bank r. Waters, 1427, 1471. Commercial Soap Works v. Lam- bert, 120. Commercial Union Assurance Co. i\ Scammon, 183, 217. Commercial Wharf Co. v. Winsor, 851. Commissioners {•. Durham, 552, 553, 602. Commissioners r. Hinchman, 539, 541. Commissioners r. Patrick, 169, 174. Commissioners of Benton Co. v. Templeton, 1261, 1263. Commissioners of Clay Co. v. Markle, 1273, 1534, 1543. xl TABLE OF CASKS CITED. THE REFERENCES Commissioners of Delaware Co. V. MeClintock, 1299, 1300. Commissioners of Highway r. Green, 667. Commissioners of Johnson Co. v. Ogg, 493. Commissioners of Kingstown r. Blaclvrock Commissioners, 789. Commissioners of Leavenworth Co. V. Lang, 464. Commissioners of Osborne Co. v. Blake, 471. Commonwealth v. Banks, 1057. Commonwealth v. Croushore, 723. Commonwealth r. Pittsburg & C. R. Co., 12, 590. Commonwealth r. Wellsboro & T. P. R. Co., 571. Company of Stationers v. Sey- mour, 953. Computing Scale Co. v. National C. S. Co., 891, 892, 970. Computing Scale Co. v. Standard S. C. Co., 1020, 1022. Comstock V. Johnson, 835. Condit /;. Widmayer, 479, 490. Condon v. Maloney, 4. Congleton i: Mitchell, 630. Congress Co. r. High Rock Co., 1060, 1089. Conkey v. Dike, 349, 409, 427. Conkey Co. r. Russell, 1422, 1423. Conley v. Chedic, 483. Conley r. Fleming, 17. Connel v. Stelson, 220, 221. Connell r. Reed, 1079. Conner's Appeal, 478. Connery v. Swift, 226. Connor /;. Connor, 1372. Conolly /;. Riley. 1404. Conover r. Mayor, 66. Conover r. Mers, 896, 897. Conover r. Rurkman, 1401, 1490, 1 .'■.03. Conrad r. Smith, 1287, 1289. ARE TO THE PAGES. Consolidated Coal Co. v. Schmis- seur, 1123, 1137. Consolidated E. S. Co. v. Accumu- lator Co., 1668. Consolidated Fastener Co. r. American Fastener Co., 888. Consolidated Fastener Co. v. Lit- tauer, 899. Consolidated P. C. Co. v. Pacific Ry. Co., 1670. Consolidated R. M. Co. v. Rich- mond C. M. Works, 882. Consolidated R.-M. Co. v. Smith M. P. Co., 902. Consolidated S. & W. Co. v. Mur- ray, 33, 1410, 1413, 1419. Consolidated Water Co. r. City of San Diego, 1526. Consumers Gas Co. v. K. C. G. & C. Co., 970. Consumers Oil Co. v. Nunne- maker, 1162. Continental Ins. Co. v. Conti- nental Fire Assn., 1023. Continental S. S. Co. v. Clark, 879. Converse r. Ketchum, 394. Conway, Ex parte, 21, 23, 335, 336. Conway r. Ellison, 73, 135, 25t. Cook /•. Burnley. 315. Cook /-. Chapman, 1603, 1617, 1629. Cook V. City of Beatrice, 1301. Cook r. City of Racine, 532. Cook /•. Ernest, 888. Cook r. Forbes, 739. Cook r. Jenkins, 1474. Cook V. Mayor, 726. 852. Cook V. Murphey, 232. Cook r. North & South R. Co., 618. Cook r. Patterson. 412. Cook & Bernheimer Co. r. Ross, 1048. Cooke r. Burnham, 220, 221. TABLE OF CASES CITED. Xli THE REFERENCES Cooke r. Chilcott, 5, 1140. Cooke & Cobb Co. v. Miller, 1020. Coombs V. S. L. & F. D. Co., 16, 621. Cooper, In re, 273. Cooper V. Alden, 1293. Cooper V. City of Mineral Point, 58. Cooper V. Cooper, 1488. Cooper r. Crabtree, 739. Cooper V. Davis, 434, 658. Cooper r. Detroit, 570. Cooper V. Gordon, 303, 304. Cooper V. Hamilton, 666. Cooper V. Williams, 1190. Coosaw Mining Co. v. Carolina Mining Co., 1602. Coosaw Mining Co. r. Farmers' Mining Co., 1607, Coosaw Mining Co. v. South Caro- lina, 697. Cope i\ District Fair Association, 29. Cope r. Evans, 1070. Copeland's Adm'r c. Reese, 157. r. Copley, 649. Coppinger r. Gubbins, 634, 645. Coquard r. Indian Grave Drain- age District, 44. Coquard v. National Linseed Oil Co., 1207, 1214, 1224. Corbin v. Gould, 1022. Corby v. C, R. I. & P. R. Co., 793. Corcoran r. C, M. & N, R. Co., 616. Corcoran v. Doll, 320. Corcoran r. Judson, 1629. Corder o. Martin, 1587. Core V. Bell, 643. Corey v. Voorhies, 1475, 1490. Corles r. Lashley, 423. Corliss V. Walker Co., 34, 35. Cornelius v. Coons, 1653. Cornelius r. Morrow, 185. ARE TO THE PAGES. Cornelius r. Post, 646, 688. Cornelius r. Thomas, 185. Corning v. Lowerre, 725, 782, 78i;. 1532. Corning o. Troy Factory, 4, 761, 762, 768. Correspondent Newspaper Co. v. Saunders, 938, 982. Corwin ;;. Daly, 1020, 1061. Cory V. Yarmouth & N. R. Co., 20, 871, 873. Coster r. Griswold, 127. Cotter r. Cotter, 1653. Cotton i\ Hiller, 140. Cotton V. Mississippi & R. R. B. Co., 778. Cottrell ('. Moody, 1397, 1398. Cotzhausen /■. Kerting, 139. Couch r. Ulster Turnpike Co., 1498. Coughron o. Swift, 43, 240, 242, 344. Coulson ('. Harris, 442, 444, 453, 457. Coulson i.\ Portland, 516. Coulson r. White, 703. Counterman r. Dublin Township. 1299. County Commissioners r. Bryson. 182. County Commissioners r. Frank- lin Coal Co., 17. County Commissioners r. Hum- phrey, 877. County Commissioners r. Hunt, 1282. County Commissioners r. Union Mining Co., 463, 468. County of Anderson r. Kennedy. 504. County of Cook r. City of Chi cago, 100. County of Cook /•. Great Western R. Co.. 583, 594. County of Harris a Taylor, 814. :xlii TABLE OF CASES CITED. THE REFERENCES ARE TO THE PAGES. County of Stearns r. St. Cloud, 594. Couper r. Rowe, 511. Couper i-. Smyth, 1325, 1330. Court r. O'Connor, 461, 497. Cousins r. Smith, 1554. ■Covert r. Travers Bros. Co., 909, 924, 926. Coville r. Oilman, 75. Covington r. Town of Rocking- ham, 448, 468. Cowand v. Meyers, 653. Cowell r. Martin, 777. Cowles V. Shaw, 688. Cowley r. City of Spokane, 531. ■Cowley V. Northern Pacific R. Co., 180. Cowley r. Wellesley, 643. Cowper V. Clerk, 77. Cowper r. Laidler, 817. Cox V. Arnsmann, 1386. €ox V. Douglass, 687. €ox r. Hawkins, 463, 472. Cox V. Howell, 833. Cox V. Land & Water Journal Co., 974. Cox /•. Louisville R. Co., 615. Cox V. Moores, 1326. Cox r. Taylor's Adm'r, 1593. Coxe Bros. & Co. v. Solomon, 460. Coyne v. Warrior S. Ry., 602, 604. Cozart r. Oeorgia Railroad & Banking Co., 1226. Crabtree r. Baker, 715. Crabtree v. Oobson, 1262. Craft r. Bullard, 413. Craft V. I.. D. & W. R. Co., 350. Craft r. Jackson, 1313. Craft r. Kochersperger, 352, 517. Craft r. Thompson, 265. Craig r. Ankeney, 136, 1382. Craig r. Fisher, 1437. Craig r. Greer, 1143. Craig r. The People, 780, 1573. Crampton /■. Zabri.skie, 1238, 1277. Crandall r. Bacon, 148, 220, 221. Crane iK Bunnell, 66. Crane r. Janesville, 498, 499. Cranford v. Tyrrell, 34, 710, 749. Cranmer r. Williamson, 456. Cranstown v. Johnston, 113, 259. Crawford r. Bradford, 466. Crawford r. Crawford, 192. Crawford r. Fisher, 70. Crawford r. Paine, 111, 317, 1558, 1577. Crawford r. Pearson, 1594, 1595, 1607. Crawford v. Thurmond, 185, 186. Crawford r. Woodworth, 1609. 1619. Crawfordsville & E. T. Co. v. Smith, 858. Craycroft r. Morehead, 1513. Creanor v. Nelson, 557. Creek r. McManus, 1634. Cregan v. Cullen, 634. Cregar r. Creamer, 1502. Crellin v. Ely, 391. Cresap r. Kemble, 665, 669. Crescent City Co. v. Larrieux, 1609. Crescent City L. S. L. & S. H. Co. V. Police Jury, 48. Crescent City S. H. Co. r. Butch- ers W. S. Co., 1552. Crescent City S. H. Co. r. Police Jury, 1552. Crescent City W. & L. Co. /•. Simpson, 673. Crescent Mining Co. i\ Silver King Mining Co., 20. Cresy r. Beavan, 1480. Crews /;. Burcham, 19. Crews v. Pendleton, 246, 424 Crighton r. Dahmer, 86. Crim r. Handley, 138, 205, 206. Crim r. Town of Philippi, 497. Crist r. Cosby. 180. 267. TABLE OF CASES CITED. xliii THE REFERENCES ARE TO THE PAGES. Crocker v. Allen, 179. Crocker v. Baker, 1540. Crocker v. City of New York, 722. Crockett r. Crockett, 630, 639. Crockford v. Alexander, 1354. Croft V. Day, 1033, 1035, 1037, 1050, 1067. Crombie v. Order of Solon, 1499. Cronise v. Clark, 1477. Crook V. The People, 1460, 1466, 1470. Crook's Ex'r i: Turpin, 1489. Cropper v. Coburn, 256, 1346. Crosble r. Tooke, 1104. Cross V. Livermore, 883. Cross V. Mayor, 560. Crossley v. Beverley, 924. Croton Turnpike Co. r. Ryder, 857, 858. Crowe V. Aiken, 990, 991, 993, 994, 996, 999, 1014. Crowell V. Horacek, 1397. Crowley v. Davis, 251, 563. Cruickshank v. Bidwell, 1345. Crump V. Lambert, 736. Cruttwell r. Lye, 1164. Cubbedge r. Adams, 1399, 1644. Cuervo r. Landaner, 1078. 1079. Culbertson r. City of Fulton, 512. Culbertson r. Culbertson, 442. Cumberland Co. r. Hoffman Co., 1577, 1602, 1626. Cumberland Glass Mfg. Co. r. G. B. B. Assn., 33, 1410, 1412, 1414. 1419. Cumberland & O. R. Co., v. Judge of Washington County Court, 1334. Cumberland T. & T. Co. v. United Electric R. Co., 576. Cumines i\ Supervisors, 541, 1305. Cummings r. Burleson, 1623, 1629. Cummings v. City of St. Louis, 813, 1529. Cummings r. Des Moines, W. & S. W. R. Co., 59. Cummings c. Jerman, 1379. Cummings v. Mugge, 1579, 1585, 1616. Cummings v. National Bank, 486. 487. Cummins v. Bennett, 54. Cummins v. Bentley, 232, 233, 1110. Cummins v. Cummings, 1570. Cunningham v. Bell, 1388. Cunningham r. Caldwell, 212. Cunningham r. Conway, 145. Cunningham r. Finch, 1631, 1635. Cunningham r. Rice, 755. Cunningham r. Rome R. Co., 755. Cunningham v. Tucker, 1513. Curd i-. Farrar, 248. Curd c. Wallace, 297. Curd V. Wunder, 425. Curran v. Shattuck, 557. Currier v. Esty, 200. Currier r. West R. Co., 793. Curriers Company i\ Corbett, 823. Curry r. Jones, 530. Curtenius r. Hoyt, 1299, 1301. Curtis r. East Saginaw, 500. Curtis r. Keesler, 761. Curtis r. Marquis of Bucking- ham, 1104. Curtis r. Norton, 831. Curtiss V. Bachman, 1633, 1635. Cutting r. Gilbert, 489. D Dade r. Irwin's Ex'r, 233. Daggett V. Ryman, 1170. Daily v. Wynn, 227. Dale V. Roosevelt, 64, 1094. Dales r. Webster, 1179. Dalglish r. Jarvie, 1479. D'Almaine r. Boosey, 963, 1009. Daly V. Amberg, 1449. 1450. xliv TABLE OF CASES CITED. THE REFERENCES Daly i: Brady, 940. Daly v. Palmer, 1004. Daly V. Smith, 1149, 1150, 1153. Daly r. The Sheriff, 256. Daly V. Webster, 1004. Damschroeder v. Thias, 112, 395. Dana r. Craddock, 14. Dana v. Valentine, 701, 751, 754. Dance v. Goklingham, 39. Daniel v. Daniel.. 1607. Daniel v. Ferguson, 10. Danville v. Montpelier R. Co., 1307. Danville B. & T. Co. i:. Parks, 1612. Darling v. Gunn, 463. Darling r. Mayor, 135. Darlington Oil Co. r. P. D. Oil Co., 1653. Darmsdatt r. Wolfe, 95. Darst V. Brockway, 1108, 1109. Darst r. Gale, 1612. Darst 0. Griffin, 524. Darst v. The People, 1304, 1435. Dascey v. Harris, 402, 403. Daubenspeck r. Grear, 690. Dauenhauer v. Devine, 323. Daugherty T. Co. r. Kittanning 1. & S. Co.. 20, 1548. Daughtry r. Warren, 707. Davenport r. Davenport, 1556. Davenport r. .Jepson, 908. Davenport r. Kleineschmidt, 1236, 1276. 1313. Davenport Bridge R. Co. r. .John- son, 613. Davidson r. Floyd, 182. Davidson v. Reed, 675. Davies v. Clough, 26, 90. Davies v. Leo, 626. Davies v. Williams, 766. Davis V. American Society, 87, 1253, 1256. Davis p. Bayliss, 169. Davis V. Bohle, 283. Davis V. Browne, 39. ARE TO THE PAGES. Davis r. Burnett, 461, 504. Davis r. Commissioners of High- ways, 714. Davis r. Covington & M. R. Co., 609. Davis '". Davis, 253. Davis r. Foreman, 1152, 1153. Davis r. Grove, 1363. Davis r. Hull, 643. Davis V. Kendall, 1071. Davis V. Lambertson^ 763. Davis /'. Londgreen, 772. Davis V. Mayor, 722, 731, 783, 793, 1318. Davis V. Niagara Falls Co., 738. Davis r. Overseer of the Poor, 135. Davis ('. Port Arthur C. & D. Co., 14. Davis V. Reed, 689, 1553. Davis V. Rosedale S. R. Co., 1630. Davis V. Stark, 666. Davis i'. Tileston, 235. Davis /?. Weaver, 1644. Davis's Ex'rs r. Fulton, 1565. Davis & Farnum Mfg. Co. r. City of Los Angeles, 86, 87, 1253, 1255. Daw r. Eley, 1466. Dawson r. Beeson, 1358. Dawson v. Croisan, 484. Dawson v. Paver, 1443. Dawson r. St. Paul F. & M. Ins. Co., 725, 783. Dawson i\ Thompson, 1393. Day v. Binning, 1047. Day V. Brownrigg, 60, 1032. Day V. Candee, 883. Day r. Hartshorn, 901. Day V. Martin, 1618. Day r. Merry, 649. Dayton r. Commercial Bank, 181. Dayton ;•. Drainage Commission- ers, 714. Dayton r. Multnomah County, 468. Daylon r. Relf, 70. TABLE OF CASES CITED. xlv THE REFERENCES Deaderick v. Smith, 260, 261. Deakin v. Lea, 1604. 1612. Dean v. Borchsenius, 470, 491, 494, 527. Dean v. Brown, 629. Dean v. Charlton, 533. Dean v. Davis, 444, 458, 519. Dean v. Madison, 499, 500. Deane v. Todd, 482. Deans v. Bowden, 338. Dease v. Plunkett, 1479. Deason v. Dixon, 523. Deaver v. Eller, 1099. Debs, In re. 33, 1410, 1417, 1418, 1419. Decker v. E.. S. & N. R. Co., 563. Decker v. McGowan, 453, 478. Dedman v. Chiles, 75. Deegan v. Neville, 663, 669. Deere v. Guest, 5, 678, 679. Deering Harvester Co. v. Whitman & Barnes Mfg. Co., 1035. De Forth v. Wisconsin & M. R. Co., 1302. De Give v. Seltzer, 746. De Godey v. Godey, 1502, 1503, 1644. De Groot v. Jay, 90. De Groot v. Peters, 1357. De Groot v. Receivers, 112, 317. De Groot v. Wright, 1501. De Haven v. Covalt, 176. Dehon v. Foster, 117, 118, 119. Deidrichs v. The Northwestern Union R. Co., 609. Deklyn v. Davis, 21. De la Croix v. Villere, 689. Delahanty v. Warner, 1325, 1329, 1636. Delaney v. Brown, 180, 196, 198. Delano Land Company's Appeal, 1238. Delaware v. Stump, 810. Delaware & H. Canal Co. c. Clark, 1035. ARE TO THE PAGES. Delaware, L. & W. R. Co. r. Cen- tral S. T. & T. Co., 4. Delaware & R. Canal v. Raritan & D. B. R. Co., 591. Delaware & R. Co. r. Camden & A. R. Co., 866, 867. Delger v. Johnson, 1493, 1567. Delondre v. Shaw, 978, 1089. Deloughrey l: Hinds, 459. De Luze v. Bradbury, 8, 39. De Manneville v. De Manneville, 1392. Demarest i\ Hardham, 748. De Mattos v. Gibson, 1094. Deming v. James, 490. Dempster v. Chicago, 534. Denner v. Chicago, M. & St. P. R. Co., 773. Dennett v. Reisdorfer, 1585. Dennis v. Green, 1570. Dennison r. City of Kansas, 1288. Dennison Mfg. Co. i\ Thomas Mfg. Co.. 1028. Dent i\ Auction Mart Co., 817, 821. Dent V. Cook, 1237, 1240, 1313. 1315. Dent r. Summerlin, 1474, 1502. Dent r. Turpin, 1089, 1090. Denver & N. 0. R. Co. r. Atchison. T. & S. F. R. Co., 595. Denver & R. G. R. Co. r. United States, 20, 21. Denver & Swansea R. Co. r. Den- ver City R. Co., 794. Denny r. Brunson, 635. Denny r. Denny, 1367. Depau V. Moses, 1367. Depeyster v. Graves, 1475, 1514, 1515, 1516. Derdeyn v. Donovan, 1595. De Riemer v. Cantillon, 388. Derry Bank r. Heath, 1623, 1629. Des Moines Gas Co. r. City of Des Moines, 1257. xlvi TABLE OF CASES CITED. THE REFERENCES ARE TO THE PAGES. Des Moines R. Co. r. Carpenter, 1560. Desmond's Appeal, 1070. Desvergers r. Willis, 364. Detroit & B. P. R. Co. r. Frazer, 23. Detroit & M. R. Co. v. Brown, 386. De Vaughn r. Minor, 803. Deveau r. Fowler, 1354. De Veney v. Gallagher, 676. Dever v. City of Junction City, 1286. De Ver Warner r. Bassett, 902. Deville r. Hayes, 141, 248, 346, 1384. Devin i: Scott, 163. Devinney v. Mann, 216. Devlin v. Devlin, 1039. Devlin r. Quigg, 407. Devon r. Scales, 195. Devore r. Ellis, 845. Devron v. First Municipality, 1253. 1255. Dewar r. City & S. R. Co., 744. Dewey r. Superior Court, 1647, 1648. De Wilton v. Saxon, 1123. De Witt r. Hays, 494, 860. De Witt r. Van Schoyk, 781. De Worms v. Mellier, 100. Dey V. Dey, 1502. Dial r. Reynolds, 124. Diamond r. City of Mankato, 1263. Diamond Match Co. r. Roeber, 1120, 1158. 1174, 1176, 1177. Dickens r. , 957. Dir'kens r. Lee, 963. Dickenson v. B. L. & 1. Co., 36. 1110. Dickenson r. Grand Junction Canal Co.. 1118. Dickenson r. McDermott, 235. Dickerson r. Armstrong, 1455. Dickerson r. De T.a Vergne Ref. Co.. 884. Dickerson v. Machine Co., 896. Dickey v. Reed, 1260, 1326, 1327^ 1435. Dickinson v. Jones, 652. Dickson v. Dows, 8, 1644, 1653. Diehl V. Friester, 1439. Dierks v. Commissioners of High- ways, 737. Dietrichsen v. Cabburn, 1146, 1155. Dietz V. City of Neenah, 350, 498, 530. Dietz V. Ham Mfg. Co., 885. Dietzch v. Huidekoper, 126. Diggs V. Wolcott, 123, 860. Dillett V. Kemble, 355. Dills V. Doebler, 1177. Dilly w. Barnard, 184, 215. Dilly V. Doig, 922, 1527. Dilworth v. Robinson, 742. Dilworth's Appeal, 742. Dimick v. Shaw, 670, 693. Dinehart v. Lafayette, 51. Dings V. Parshall, 420. Dinwiddle v. President of Rush- ville, 1287, 1289. Directors v. Trustees, 1637. Disbrow v. Garcia, 1632. Disher v. Disher, 642. District Township v. Barret, 1270. District Township of Lodomillo v. District Township of Cass, 679,. 1490. Dittman v. Repp, 739, 748. Dixon V. Grugenheim, 1089, 1090. Dixon r. Holden, 968. Doan V. Board of Commissioners, 1236, 1251, 1271. Doane v. Lake Street El. R. Co., 563, 566. Dobbins v. City of Los Angeles, 88. Dobbs V. Prothro, 1373. r)ol)l)s (\ St. Joseph F. & M. L Co.». 138. Dockrey r. French, 410. TABLE OF CASES CITED. xlvii* THE REFERKNCES Dodd V. City of Hartford, 448. Dodd V. Flavell, 1576. Dodd t'. Salisbury & G. R. Co., 618. Dodd r. Wilson, 84. Dodge V. Card, 883. Dodge 1'. City of Council Bluffs, 1312. Dodge V. Pennsylvania R. Co., 785. Dodge r. Pyrolusite Manganese Co., 1397. Dodge V. Strong, 138. Dodge V. Van Buren Circuit Judge, 23. Dodge Co. V. C. I. Co., 28. Doherty v. Allman, 634. Dolese r. McDowgall, 1442. Dollahon v. Whittaker, 47 J. Domestic & F. M. Society v. Hin- man, 124. Domestic Telegraph Co. v. Metro- politan Telephone Co., 1104. Donahue v. Johnson, 1631. Donaldson v. Becket, 991. Donaldson v. Wright, 952, 1338, 1649. Donelson v. Young, 187, 214. Donnell v. Bennett, 1146, 1149. Donnell i\ Church, 1556. Donovan v. Allert, 575. Doolittle r. Supervisors, 725, 1532. Dooly V. Stingham, 628. Dooly Block r. S. L. R. T. Co., 561. Doran v. Carroll, 679. Dorman r. Dorman, 637. Dorn V. Fox, 515. Dorriss i\ Carter, 1609. Dorsey v. Allen, 705, 707, 753. Dorsey v. Hobbs, 111, 362, 370, 371. Dorsey r. Simmons, 327. Dorsey Co. v. Marsh, 913, 919. Dortic V. Dugas, 1397. Doub V. Barnes, 1499. Doubleday v. Sherman, 930, 1467. Dougherty ik Dore, 1594. Dougherty v. Scudder, 65, 1110. ARE TO THE PAGES. Dougherty v. Walker, 1367. Doughty V. Somerville & E. R. Co.,. 46, 1659. Doughty V. West, 886. Douglass V. Boardman, 81, 110. Douglass V. City Council, 1293. Douglass V. County Commission- ers, 1515. Douglass V. Joyner, 260. Douglass V. Town of Harrisville, 441, 516. Douglass V. Walton, 391. Douglass V. Wiggins, 393, 398, 399,. 656. Dow D. Northern R. R. Co., 1213. Dowagiac Mfg. Co. v. Minnesota. M. P. Co., 1458. Dowell v. Goodwin, 214. Dowling r. Polack, 1579. Downes r. Monroe, 1580. Downing v. Lewis, 1157. Downing v. Mann, 344. Downing v. Ross, 1245. Downshire r. Sandys, 649. Dows i\ Chicago, 440, 447. Drake v. Hanshaw, 216, 219. Drake v. Hudson River R. Co., 791. Drake v. Jones, 353. Drake v. Phillips, 494, 542, 1578 Drake Medicine Co. v. Glessner,. 1028, 1071, 1073, 1075. Drane r. Winter, 1483. Draper v. Draper, 1391. Draper r. Hudson, 890. Draper r. Mackey, 787. Dreutzer v. Frankfort Land Co.. 1664. Drew V. Town of Geneva, 47, 574_ Drews v. Williams, 1353. Driffield v. Waterloo Co., 969. Driscoll r. Smith, 44, 47. Driver r. Hays, 545. Drouet v. Lacroix, 342. Drury v. Roberts, 1355. xlviii TABLE OF CASES CITED. THE REFERENCES Dubach i\ Hannibal & St. J. R. Co., 614. Dubuque & S. C. R. Co. v. Cedar Falls & M. R. Co.. 101. Duck V. Peeler, 459. Duckett r. Dalrymple, 1492, 1519. Duektown Sulphur, C. & I. Co. c. Fain, 82. Ducote V. Bordelon, 1372. Dudley v. Hurst, 435. Dudley v. James, 1325, 1329. Dudley i\ Mayhew, 933. Dudley v. Miner's Ex'rs, 73, 74. Dudley r. Trustees, 332, 1235, 1293. Duff V. Russell, 1153. Duffy V. Meadows, 739, 740. Dugan t\ Cureton, 135. Duke of Beaufort i7. Morris, 696. Duke of Bedford r. Trustees of British Museum, 1143. Dulin ;;. Caldwell, 12. Dumbould r. Rowley, 227. Dummer v. Chippenham, 1188. Dunbar v. County Commissioners, 1249, 1279. Dunbar v. Glenn. 1060. Duncan v. Central Passenger R. Co., 1143. Duncan i: Gibson, 174. Duncan v. Hayes, 705, 753, 754. Duncan v. Lyon, 212. Duncan v. Morrison, 156, 167. Dundas v. Chrisman 191. Dungan r. Miller, 94. Dunham v. Collier, 245, 418. Dunham v. Miller, 492. Dunkart r. Rinehart, 644. Dunlop Pneumatic Tyre Co. r. Neal, 918. Dunn r. Baxter, 1388. Dunn r. Bryan, 37, 643. Dunn r. City of Austin, 756, 757. Dunn r. Clarke, 1.52, 1528. Dunn r. Davis. 1588. Dunn r. Fish. 217. 218. ARE TO THE PAGES. Dunn V. McNaught, 1364. Dunnahoo ik Holland, 197. Dunning r. Aurora, 705, 784. Dunscomb v. Randolph, 323. Duplex Printing Press Co. v. Campbell Printing Press Co., 899, 1668. Dupree v. Swafford, 1488. Durant 'V. Williamson, 702. Durell V. Pritchard, 4, 820. Durham v. Linderman, 442. Duryea v. National Starch Mfg. Co., 1041. Dusenbury v. Mayer, 525. Duvall V. "Waters, 645. Dwenger v. Geary, 309. Dwight V. Hamilton, 1164, 1166. Dyckman r. Kernochan, 73. Dyer v. Armstrong, 327. Dyer v. School District, 19. Dyers Company ?'. King, 817, 822. Dyke p. Taylor, 20. E Eachus V. Moss, 679. Eakle v. Smith, 1599. Earl r. Matbeney, 220. Earl of Aylesford r. Morris, 89. Earl of Milltown r. Stewart, 89. Earl of Ripon v. Hobart, 705. 706, 726, 727. Earl & Wilson v. Raymond, 445, 450, 479. Earle's Admr'x v. Hale's Adm'r 340. Early t\ Bledsoe, 184. Barley's Appeal, 829. Earth Closet Co. r. Fenner, 889. East Haddam Bai)tist Church r. East Haddam Ecclesiastical So- ciety, 295. East St. Louis R. Co. r. City of East St. Louis, 1103. East & West R. Co. r. East Ten- TAIiLK OF CAS]:S ClTi:i>. xlix THE HEFKUENOES nessee, V. & G. R. Co., 602, 604, 609. Eastburn v. Kirk, 1565, 1566. Eastern Ky. Ry. Co. r. Brown, 1609. Eastman v. Amoskeag Manufactur- ing Co., 704. Eastman Kodalc Co. r. Reichen- bach, 27. Easton v. New York & L. B. R. Co., 1582, 1606. Easton & A. R. Co. r. Inhabitants of Greenwich, 786. Eastwood V. Lever, 1136. Eaton V. Markley, 151. Eaton V. Union County Bank, 462. Ecclesiastical Commissioners v. Kino, 822. Echelkamp v. Schrader, 670. Eckerson v. Crippen, 832. Edelsten v. Edelsten, 1072. Edgecumbe v. Carpenter, 387. Edison Electric L. Co. r. Beacon V. P. & E. Co., 895, 896. Edison Electric L. Co. r. Citizens' E. L. Co., 899. Edison Electric Light Co. r. United States Electric Lighting Co., 1670. Edleston v. Vick, 1033, 1071. Edmanson v. Best, 170, 176. Edmison r. Sioux Falls W. Co., 1584, 1613, 1622. Edmunds v. Bird, 1371. Edney r. King, 1527. Edney v. Motz, 1564. Edward Thompson Co. r. American Law Book Co., 962, 981. Edwards v. Applegate, 1357. Edwards v. Bodine, 1617, 1629. Edwards v. Edwards, 1389, 1621, 1624. Edwards r. Haeger, 673. Edwards r. Haverstick, Adm'r, 1372. ARE TO THE PAGES. Edwards r. Jenkins, 1558. Edwards v. Milledgeville W. Co., 1106. Edwards v. Ferryman, 1509. Edwards v. Pope, 1605. Edwards v. Strode, 376. Ehrman v. Bartholomew, 1151. Eidemiller r. Elder, 176. Eidemiller v. Wyandotte City, 552, 553. Eidmiller Ice Co. v. Guthrie, 43. Einstein v. Bank, 357, 1385. Elam r. Elam, 1367. Elborough r. Ayres, 174. Electric Mfg. Co. v. Edison Electric Co., 895. Electric S. B. Co. v. Buffalo E. C. Co., 924. Elder v. Bank of Ottawa, 1113. Elder r. City of New Orleans, 1542. Elder v. Sabin, 369, 1635. Elder v. Shaw, 1092, 1093. Eldred i\ American P. C. Co., 1668. Eldred v. Camp, 1499. Eldridge r. Hill, 75. 77, 1254. Elgin Butter Co. v. Elgin Creamery Co., 1023. Elgin National Watch Co. r. Illi- nois Watch Co., 1023, 1030. Elizabethtown, etc., R. Co. r. A., etc., Ry. Co., 1657. Ellett r. Newman, 1397. Elliot r. Whitmore, 1469, 1648. Elliott r. Elmore, 181. Elliott V. Thompson, 362, 365, 370. Ellis r. B. M. F. Assn., 662. Ellis r. Commander, 1352. , Ellis r. Earl Grey, 1344. Ellis r. Hays S. & L. Co., 290, 1397. Ellis V. Karl, 1272. Ellis r. Wren, 662. Ellison r. Bignold, 1199. Ellsworth V. Cook, 73. TABLE OF CASES CITED. THE REFERENCES Ellsworth V. Hale, 19, 666. Ellwood M. Co. V. Rankin, 1632, 1635. Elmhirst r. Spencer, 772. El Modello C. M. Co. v. Gato, 102G, 1037, 1042. Elmslie v. Delaware & S. C. Co., 591. Elson r. O'Dowd, 1378. Elwes V. Payne, 20. Ely V. City of Rochester, 1245, 1247. Ely V. Crane, 1504. Ely V. Monson & B. M. Co., 907. Emack v. Kane, 970. Emerson r. Davies, 961, 1006. Emerson v. Townsend, 230. Emerson (;. Udall, 169, 170, 264. Emery v. Erskine, 841. Emmert r. Richardson, 1179. Emmons v. Pidcock, 1571. Emperor of Austria v. Day, 29, 42. Empire Loan & Building Associa- tion V. City of Atlanta, 1644. Endicott v. Mathis, 15, 55, 1471. 1479. Bndres v. Lloyd, 181, 1407. Endter v. Lennon, 251. Enfield T. B. Co. v. Connecticut River Co., 857, 871. Enfield T. B. Co. v. Hartford & N. H. Co., 855, 869. Engel V. Scheuerman, 259. England ;;. Carling, 1349. English V. Miller, 253. English V. Progress E. L. & M. Co., 753. English r. Smock, 1238, 1303. Engs V. Peckham, 723, 725, 727. Engstad r. Dinnie, 1238, 1268. Ennis v. Ginn, 229. Ennor v. Barwell, 772. Enoch Morgan's Sons Co. v. Gib- son, 1451. 1472. Ensign v. Colburn, 433, 657. ARE TO THE PAGES. Enterprise Mfg. Co. v. Sargent, 930. Enterprise Savings Association v. Zumstein, 1338, 1339. Equalization Board r. Land Own- ers, 445. Equitable Co. v. Baltimore Co., 1095, 1106. Erdman (;. Rosenthal, 1387. Erhardt i\ Boaro, 694. Erickson i\ First National Bank, 44, 1113. Erie Canal Co. v. Walker, 842. Erie Co. v. Ramsey, 1425, 1430. Erie R. Co. v. Delaware R. Co., 335, 619. Erie R. Co. v. Ramsey, 70. Ernest v. Nicholls, 1208. Ernst V. New Orleans W. Co., 1200. Errington r. Aynesly, 89. Errlssman v. Errissman, 1391. Erskine v. Staley, 93. Ertle V. Leary, 1263. Erwin's Appeal, 1408. Eskridge v. Eskridge, 663. Espey V. Lake, 1111. Esson V. Wattier, 725, 802. Estcourt r. Estcourt Hop Essence Co., 1087. Estes V. Leslie, 1086. Estes V. Williams, 1086. Estes r. Worthington, 1087. Estis r. Prince, 1581. Eureka K. R. Co. r. California & N. R. Co., 102, 622. Eureka M. Co. v. Richmond M. Co., 1649. Evan V. Avon, 1188. Evans r. Bremridge, 1383. Evans r. Coventry; 1198. Evans r. Davis, 1129. Evans r. Lovengood. 315, 316. Evans v. Missouri, I. & N. R. Co.. GOG, 607. Evans r. Reading C. F. Co., 740. TABLE OF CASES CITED. li THE REFERENCES Evans v. Taylor, 100, 105. Evans v. Wilmington & W. R. Co., 737. • Evansville Bank v. Britten, 487. Evelyn v. Lewis, 91. Everett v. Marquette, 788. Everly v. Rice, 1480. Eversfield v. Mid-Sussex R. Co., 618. Eversole r. Cook, 515, 521. Evitt r. Price, 26. Ewell r. Greenwood, 724, 725. Ewelme Hospital r. Andover, 75. Ewertsen v. Gerstenberg, 1137, 1143. Ewing (;. Board of Education, 545. Ewing V. Chase, 1373. Ewing V. City of Webster, 1253. Ewing V. Nickle, 169. Ewing V. Rourke, 38. Ewing V. St. Louis, 239, 240, 331. Exchange Bank r. Hines, 444, 466. Exnicios r. Weiss, 166. Express Cases, 597. Eyre r. Everett, 1377. Eyre v. Higbee, 966. F Fahlor r. Board of Commissioners, 441. Fahs V. Roberts, 1560. Fairbank v. Cudworth, 434, 657, 658. Fairbank Co. r. Bell Mfg. Co., 1049, 1064. Fairbank Co. v. Luckel Soap Co., 1019, 1067, 1071, 1073. Fairbanks r. Jacobus, 1047, 1080. Fairchild v. Knight, 1385. Fairthorne i\ Weston, 1346. Faison r. Mcllwaine, 236, 1539. Fajder v. Village of Aitkin, 516. Fales i\ Wentworth, 919. ARE TO THE PAGES. Falk (;. Brett Lithographing Co., 950. Falk V. Donaldson, 950. Falk V. Gast Lithograph Co., 950. Falkinburg r. Lucy, 1020, 1021, 1567. Fall V. County of Sutter, 858, 872. Falloon r. Schilling, 747. Falls V. Krebs, 207. Falls V. W. P. Co. V. Tibbetts, 690. Fanning r. Dunham, 54, 93, 1100. Fargo 7;. Ames, 1486, 1503, 1504. Fargo r. Hart, 472. Farina v. Silverlock, 1083, 1084. Faris r. Reynolds, 539. Farland v. Wood, 50, 51. Farmer v. Calvert L. E. & M. P. Co., 957, 959, 977, 1547. Farmer v. Elstner, 942, 975. Farmers R. Co. r. Reno R. Co., 7, 581. Farmers S. & B. L. Assn. r. Kent, 412. Farnsworth v. Fowler, 24, 1432. Farquhar v. National Harrow Co., 970. Farrand v. Marshall, 717. Farrant v. Lovel, 393, 398, 650, 654, 655. Farrell v. Cook, 737. Farrow v. Vansittart, 678. Faulkner v. Campbell, 266. Faust V. City of Huntington, 1291. Fawcet v. Pendleton, 95. Fawcett v. Laurie, 1214. Fears v. Riley, 1589, 1610. Featherston v. Small, 1245. Fechter v. Montgomery, 1103. Fehrle v. Turner, 373. Feilden v. Slater, 1139. Feistel v. Kings College, 1486. Fellows V. Fellows, 1110, 1526. Fellows ?'. Heermans, 1659. Fellows V. Walker, 1279, 1317. Fells V. Read, 428. lii TABLE OF CASES CITED. THE REFERENCES ARE TO THE PAGES. Felsenthal v. Johnson, 448. Felton V. Justice, 684. Fendley, In re, 274. Fennings v. Humphrey, 1425. Fentress v. Robins, 173. Ferguson, In re, 287. Ferguson r. Bobo, 385, 386. Ferguson v. Covington, etc., B. Co., 593. Ferguson v. Fisk, 85. Ferguson v. Herring, 143, 1588. Ferguson v. Tipton, 1584, 1586. Fernald r. Knox W. Co., 779. Fernandez r. Casey, 1619. Fernie v. Maguire, 39. Ferrand v. Hamer, 1560. Ferrars v. Ferrars, 1392. Ferrell v. Allen, 136, 138. Ferrell v. Woodward, 875. Ferrin v. Errol, 321. Ferris r. American B. Co., 1129. Fetherstonhaugh v. Hagarty, 1123, 1125. Fetridge r. Wells, 1079. Ffooks r. South Western R. Co., 1207. Fickes v. Vick, 149. Field V. Barling, 790, 853. Field 0. Cory, 64. Field V. Jackson, 626, 627. Field V. McKinney, 171. Field )'. Village of Western Springs, 517, 1484. Fielden r. I^ancashire & Y. R. Co., 20. Fields V. Killion, 385. Fifield r. Marinette Co., 445, 450, 481. Filder v. London R. Co., 1208, 1212. Filkins v. Blackman, 1090. Filley v. Child, 1045, 1087. Filley r. Fassett, 1033, 1075. Fillingin v. Thornton, 289, 372. Kinch r. Oroen, 713. Findley v. Findley, 1396. Fingal r. Blake, 654. Finger r. Hahn, 1157, 1171. Finnegan i\ City of Fernandina, 444, 452, 533. Finney v. Clark, 222. Finney r. Lamb, 537, 1301. Firmstone r. DeCamp, 1474, 1502. First National Bank v. Bailey, 459. First National Bank r. City of Covington. 486, 487. First National Bank v. County of Douglas, 486. First National Bank r. Farwell, 488. First National Bank r. La Due, 117. First National Bank v. Meredith, 488. First National Bank r. Sarlls, 713, 719, 1258. First National Bank of Shawnee- town r. Cook, 480. First National Bank of Utica r. Waters, 487. Fishback r. Williams, 244, 375, 380, 1627. Fisher r. Appollinaris Co.. 1082. Fisher r. Beard, 1495. Fisher /•. Board of Trade of Chi- cago, 1195. Fisher v. Carpenter, 667. Fisher r. Keane, 1196. Fisher r. Patton, 1204. 1543. Fisher r. Tribby, 1637 Fishmongers Co. r. East India Co., 784. Fisk r. Chicago. R. I. & P. R. Co.. 1193. Fisk r. City of Hartford, 12, 844. Fisk /•. Union Pacific R. Co.. 125, 1198. P^iske /\ Hazard. 542. Fitch r. Polke. 212. 371. 372. 377. Fitch r. Rochfort. 1480. Fitz r. lies. 1134, 1135. f TABLK OF CASES CITED. liii THE REFEKENCES Fitzgerald v. Hams, 1245. Fitzhugh p. City of Bay City, 525. Fitzhugh t\ Gordon, 1101. Flaccus i\ Smith, 1107. Flack V. Hughes, 535, 536, 1299. Flaherty c. Kelley, 252. Flamang's Case, 661. Flanders v. Wood, 876. Flannegan r. Hardman, 1407. Flavel r. Harrison, 1080. Fleckenstein Bros. Co. y. Flecken- stein, 1107. Fleischman v. Young, 1653. Fleischner v. Citizens I. Co., 747. Fleming v. Collins. 110, 390. Fleming v. Collins' Adm'r. 639,642. Fleming v. Guthrie, 1341. Fleming v. Patterson, 1425, 1432. Fleming v. Stahl, 1325, 1329. Fletcher r. Bealey, 706, 765. Fletcher r. Tuttle, 6, 35. Fletcher v. Vandusen, 1347. Flickinger v. Hull, 156. Flint V. H. S. B. Co., 970. Flint /;. Jones, 987. Flippin r. Knaffle, 6, 9. 201. Flood V. Van Wormer, 1322. Florence t\ Paschal, 1563. Florence Sewing Machine Co. v. Grover & Barker S. M. Co., 1093. Florence Sewing Machine Co. v. Singer Manufacturing Co., 915, 1093. Florida Coast Co. v. Young, 1662. Floyd V. Gilbreath, 444, 456. Floyd V. Turner, 1478. Folkerts v. Power, 498. Folley r. City of Passan, 552, 602, 1292. Follmer r. Nuckolls Co., 1261, 1262. Folsom r. Marsh, 956, 959, 963, 966. Foltz r. St. L. & S. F. Ry. Co., 46, 47. Fones Hardware Co. v. Erb, 1262. ARE TO THE PAGES. Foot V. Bronson, 4, 719, 769, 772, 773. Foot v. Lea, 1084. Foote V. Linck, 466, 860. P'orbes ?.'. Delashmutt, 599. Forbes v. Hall, 333. Ford V. Farmer, 1335. i Ford V. Foster, 1042, 1076, 1081. Ford V. Loomis, 1635. Ford /;. Rigby, 142, 347. Ford V. Weir, 65. Forgey r. Northern Gravel Road Co., 531, 546, 547. Forney r. Calhoun Co., 1511. Forrester v. B. & M. Co., 1204. Forsythe r. Winans, 1439. ' Fort V. Groves, 703, 784. Fort V. Thompson, 1275. Fort Clark H. R. Co. r. Anderson, 588. Fort Pitt B. & L. Assn. r. M. P, B. & L. Assn., 1056. Fort Worth S. R. Co. v. Rosedale S. R. Co., 1657. Fortescue r. Bowler, 398. Forth V. Town of Xenia, 1610. Foshee v. McCreary, 169, 176. Foste V. Shephard, 1576. Foster, Ex parte. 112, 329, 669. Foster v. Ames, 285. Foster v. Ballenberg. 20. Foster v. Birmingham R. Co., 1118, 1119. Foster v. Blood Balm Co., 1083. Foster v. Hornsby, 1323. Foster v. Kenosha, 510, 535, 536, 1299. Foster v. Moore, 887, 888. Foster v. Reynolds, 409. Foster v. Wood, 146. Fothergill v. Rowland, 1095, 1096. Fountain v. West, 1606. Fowble r. Kemp, 1542, 1543. Fowle V. House, 1640. Fowler, Appeal of, 1403. liv TABLE OF CASES CITED. THE REFERENCES Fowler r. Beckman, 24, 1431, 1432, 1450. Fowler r. City of St. Joseph, 498, 501. Fowler c. City of Superior, 1276, 1278. Fowler v. Scott, 1586. Fowler c. Williams, 1515. Fowlers Appeal, 1403. Fox V. Hudson, 1379. Fox V. Scard, 1120, 1183. Fox River F. & P. Co. r. Kelley, 835. Foxworth r. Magee, 1499, 1500. Fraas v. Barlement, 1456. Frahm c. Walton, 1596, 1633. Fralich v. Despar, 27. France c. France, 1555. Frank v. Brunnemann, 393, 399, 656. Frank v. Herold, 1410, 1412. Frank v. Peyton, 319. Frank v. Robinson, 1397. Franklin c. Appel, 43. Franklin v. Pollard Mill Co., 14, 760. Frantz v. Waggaman, 1590. Fraser v. Wha.ley, 1204, 1230. Frazer v. Slebern, 488, 489. Frazier v. Southern L. & T. Co., 284. Frazier v. White, 43. Frearson v. Loe, 917, 918. Frederick v. Douglas County, 1238, 1240, 1314. Frederick Co. Bank v. Shafer, 1397. Fredericks v. Ruber, 8, 10, 310. Freeland v. Reynolds, 142. Freeman v. Carpenter, 101. Freeman v. City of Huron, 1460. Freeman r. Deming, 1428. Freeman r. Elmendorf, 240, 245, 344, 345. Freoman r. Fort, 282. Freeman v. Miller, 249. ARE TO THE PAGES. P^reeney r. First National Bank, 123. Freer r. Davis, 664, 669. Fremont v. Boling, 442. Fremont v. Early, 492. Fremont v. Merced M. Co., 694. Fremont F. & B. Co. v. Dodge Co., 873. French v. Conelly, 999. French v. Hay, 125, 126. French v. Howard, 362, 366. French v. Macale, 1120, 1121, 1122. French r. Maguire, 990, 998. French v. Parker, 1163. French v. Smith, 845. French Manufacturing Co., In re, 1197. French P. & 0. Co., v. Porter, 1594, 1635. French Republic v. Saratoga V. S. Co., 1026, 1027, 1087. Frese v. Bachof, 1047, 1048, 1050. Freshwater v. Pittsburg, ^V. & K. R. Co., 605, 1646. Frevert r. Finfrock, 554. Frewin r. Lewis, 1247. Friedlander r. Ehrenworth, 1502. Frierson r. Moody, 229, 1102. Frieze v. Chapin, 379. 409. Frink v. Lawrence, 725, 1532. Frink v. Stewart, 667. Fritz v. Erie City P. Ry., 8. Frizell v. Rogers, 568. Frogley r. Earl of Lovelace, 1132. Frost r. Myrick, 97. Frost V. Thomas, 1337. Frostburg Building Association v. Stark, 1204, 1205. Frowd r. Lawrence, 72. Frye (;. Patridge, 1139. Fryer r. Warne, 838. Fryser v. Russell, 489. Fulbright r. Higginbotham, 311. Fuller, In re, 274. TABLE OF CASES CITED. Iv THE REFERENCES Fuller V. Bemis, 950. Fuller V. Daniels, 831. Fuller V. Huff, 1020, 1025. Fuller V. Inhabitants of Melrose, 1244. Fuller V. Townsley Co., 176. Fullerton v. Pool, 1601. Fullwood V. Fullwood, 1037, 1088. Fulton V. City of Davenport, 522. Fulton V. Greacen, 839. Fulton V. Harman, 688. Fulton V. Short Route R. T. Co., 581. Fulton V. Town of Dover, 552. Fulton Bank v. New York & Sharon Canal Co., 1510. Furbush v. Bradford, 880. Furlong v. Edwards, 1499. Fuselier v. Spalding, 735. G G. H. & S. A. R. Co. V. Tait, 715. Gable v. Wetherholt, 382. Gaertner v. City of Fond du Lac, 1248, 1249, 1540. Gage V. Evans, 443. Gage V. Graham, 465, 475. Gage V. Parker, 1497. Gage-Downs Co. v. Featherstone Corset Co., 1026. Gaines v. Kennedy, 386. Gaines v. Springer, 536. Gaines v. Thompson, 1338. Gainsborough i\ Gifford, 137. Gainty v. Russell, 187, 202. Galbraith v. Martin, 188. Galbreath v. Everett, 1371. Gale V. Abbott, 4, 756, 817, 823, 825. Gall v. Cincinnati, 1247, 1316. Gallagher v. Equitable Gaslight Co., 1107. ARE TO THE PAGES. Gallagher r. Fayette Co. R. Co., 612. Gallaher v. Michel, 287. Gallaher v. Schneider, 1649. Galloway v. Jenkins, 1309. Galloway v. The Mayor, 1649. Galusha v. Flour City Bank, 1113. Galveston, H. & S. A. R. Co. V. Dowe, 78, 216, 217. Galveston, H. & S. A. R. Co. v. Ware, 176, 178, 223, 1616, 1630. Galway v. M. E. R. Co., 16. Gamble v. Campbell, 1487, 1577. Gamble v. Loop, 242, 352. Gamewell F. A. T. Co. v. Crane, 1158. Gamewell F. T. Co. v. Municipal Signal Co., 925, 1650. Gammage v. Georgia Southern R. Co., 607. Gannon v. Peterson, 653. Gano V. White, 150. Gantt V. Grindall, 411. Garcie v. Sheldon, 1606. Gardner v. Douglass, 402. Gardner v. Gardner, 1497. Gardner ;;. Hershey, 419. Gardner v. Jenkins, 216. Gardner v. Mayor of Jersey City, 1292. Gardner v. Newburgh, 701, 760. Gardner v. Stroever, 5, 38, 780, 781. Gardner r. Terry, 349. Gardner v. The Trustees of New- burgh, 769. Gardt r. Brown, 1655. Garlington v. Copeland, 1631, 1635, 1643. Garner v. Second National Bank, 125. Garnett v. Jacksonville, St. A. & H. R. R. Co., 582. Garr v. Hill, 1653. Garretson v. Cole, 4, 338. Ivi TABLE OF CASES CITED. THE REFERENCES Garretson v. Weaver, 1361. Garrett v. Bishop, 663. Garrett v. Garrett & Co., 1040. Garrett v. Logan, 1629, 1636. Garrett r. L. R. E. Co., 562. Garrigus r. Commissioners of Parke Co.. 537. Garrison v. City of Atlanta, 86, 1253. Garrow r. Carpenter, 1519, 1657. Garth v. Cotton, 639, 644, 650. Gartside v. East St. Louis, 1188, 1251, 1253. Gartside r. Outram, 28. Garvey v. L. L R. Co., 738. Garwood v. New York C. & H. R. R. Co., 836. Gahs V. Ledbetter, 329. Gaskin v. Balls. 1136. Gaskins v. Peebles, 336, 1493. Gas Light & Coke Co. r. City of New Albany, 1092, 1093. Gas Light & Coke Co. v. Vestry of St. Mary Abbott's, 573. Gass's Appeal, 312. Gates ;;. Ballon, 1508. Gates V. Barrett, 451. Gates V. Bucki, 123. Gates V. Lane, 163, 223. Gates V. McDaniel, 855, 874. Gatewood v. Burns, 344, 1382. Gatewood r. City Bank of Macon, 229. Gault V. Goldthwaite, 1624. Gault V. Wallis, 33, 86, 164. Gaunt V. Fynney, 680, 739, 825. Cause '('. Perkins, 666, 669, 688, 690. Gay r. Hancock, 362, 370. Gay r. Hebert, 444, 449, 451. Gayle r. Fattle, 362. 366. 370. Gcrans v. Baker, 647. deary i;. Norton, 921. Gee i\ Pritchard. 965. 966, 1359. Geiger v. Green, 1485, ARE TO THE PAGES. General Electric Co. v. C. & L. R. Co., 567. General Electric R. Co. r. C. & W. L R. Co., 566, 588. Genesee Salt Co. v. Burnap, 1026, 1027. Gentry v. Hamilton, 1565. Gentry v. Lockett, 147. George o. Central R. & B. Co., 1218. George o. Cooper, 1374. George v. Dean, 444, 449, 450. George v. Strange, 232. George Ertel Co. i'. Stahl, 884. Georges v. Detmold, 630. Georgetown v. Alexandria, 796. Georgia r. Atkins, 489. Georgia Chemical Co. v. Colquitt, 737. Georgia Mutual Loan Association V. McGowan, 453. Georgia Pacific Railway v. Mayor, 38. Georgia Slate Co. r. Davitte, 1644. Germain r. Wilgus, 879, 881. German r. Clark, 662. German Church r. Maschap, 303, 309. German Printing & Publishing Co. /•. Illinois Staats Zeitung Co., 1265. German Savings Bank r. Habel, 1445. Gerrard r. O'Reilly. 1121. Gerrish r. Hunt. 222, 224. Gerrish v. Seaton. 222, 224. Gerry r. Stimson, 358. Gessler v. Grieb. 1020, 1022. Gibbons v. Ogden, 863. Gibbs V. Green, 1340. Gibbs V. Morgan, 1444. Gibby r. Hall, 1506. Gibson t: Gibson, 52, 1544. Gibson v. Moore, 100, 101. TABi,K OF CASKS CITKD. Ivii THE REFERENCES Gibson v. O'Connell, 1583. Gibson v. Reed, 1579. Gibson v. Smith, 629. Gibson /?. Tilton, 1564. Gibson v. Van Dresar, 895. Gibson's Adm'r c. Armstrong, 265. Gibson's Heirs v. Niblett, 409. Giddens v. Lea, 231, 1099. GiiTord r. Morrison, 148, 224. Gifford r. N. J. R. R. Co., 1314. Gifford V. New Jersey R. & T. Co., 1204. Gilbert v. Arnold, 293. Gilbert v. Morris C. & B. Co., 710, 717, 732. Gilbert v. Showerman, 753. Gilder v. Merwin, 193. Gile V. Hallock, 353. Gilfillan v. Grier, 14. Gill ('. Ferris, 1157. Gillespie v. Broas, 1324. Gillespie v. Forrest, 719, 777. Gillett 0. Treganza, 651. Gillette v. City of Denver, 445. Gillingham v. Beddow, 1358. Gillott V. Esterbrook, 1032, 1033. Gilman v. Hunnewell, 1021, 1022. Gilman v. Philadelphia, 797. Gilmore v. Fox, 547, 548. Gilmore v. Norton, 547. Gilroy's Appeal, 1326. Ginesi v. Cooper, 1164. Gist v. ' McGuire, 1617. Glaenzer r. Wiederer, 901. Glaessner r. A.-B. B. Assn., 562, 780, 793. Glass V. Clark. 1555, 1640. Glass V. Smith, 220 Glasscott r. Copper Miners Co., 1518. Glassington r. Thwaites, 1348. Gleason i\ Jefferson, 1296. Glen Cove M. Co. r. Ludeling, 1073. Glendenning r. Ansley, 107. ARE TO THE PAGES. Glen & Hall M. Co. r. Hall, 1C31. Glenn v. Waddel, 449, 546, 547. Glenny o. Smith, 1067. Glos r. Swigart, 475 Glossop ij. Heston & Isleworth Local Board, 776. Glover r. McGaffey, 1582 Glover r. Swartz, 4. Goate V. Fryer, 1404. Gobeille r. Meunier. 675, 676, 679. Goch /•. Marshall, 1431. I Goddaid r. C. & N. W. R. Co., I 1484. j Goddard v. Stockman, 539. Godfrey r. Black, 1123. Godillot V. Harris, 1049. 1075. Goedgen ». Supervisors, 1301, 1302. 1305. Goff V. Supervisors of Outgamie Co., 480, 481. Goforth V. Rutherford R. C. Co., 537, 538. 1303. Gold v. Johnson, 1482. Gold & Stock Telegraph Co. r. Todd, 1147. Golden /•. City of Guthrie, 87. 1253, 1255. Golden Gate C. H. M. Co. r. Su- perior Court, 24, 1469. Goldfrank v. Young, 415. Goldman v. Gillespie, 1331. Goldmark v. Kreling, 991. Goldsmith p. Elsas, 812. Goldsmid r. Tunbridge Wells Im- provement Commissioners, 774, 775. Goldstein v. Kelly, 358. Goldsworthy v. Boyle, 1326. Gonzales r. Sullivan, 504. Gooch V. Vaughan, 413. Good IK Sherman. 1197. Goodale r. Goodale, 26. Goodall V. Crofton, 748. Goodell r. Blumer, 357. Goodell r. Lassen, 667, 668. Iviii TABLE OF CASES CITED. THE REFERENCES Goodhart v. Lowe, 44. Goodin v. Cincinnati R. Co., 619, 1207. Goodman v. Henley, 169. Goodman v. Kine, 53. Goodnough v. Slieppard, 245, 337. Goodrich r. Moore, 3. Goodwin v. Mayor of Savannah, 529. Goodwin v. New York, N. H. & H. R. Co., 52, 584. Goodwin v. Spray, 656. Goodyear v. Allyn, 922, 927. Goodyear r. Berry, 896. Goodyear v. Bourn, 916, 923. Goodyear v. Central R. R. of New Jersey, 887, 888, 896, 898. Goodyear v. Day, 881. Goodyear v. Dunbar, 906. Goodyear v. Evans, 896, 921. Goodyear v. Honsinger, 909, 910. Goodyear r. Mullee, 930. Goodyear v. New Jersey R. R., 922. Goodyear v. Phelps, 922. Goodyear v. Rust, 896. Goodyear Dental Vulcanite Co. v. Folsom, 60. Gooseman v. Dann, 1434. Gordon v. Winston, 722. Gorham v. Toomey, 251. Goring v. McTaggart, 498, 499. Gorsuch V. Thomas, 137, 179. Gorton v. Brown, 1593. Gorton v. Tiffany, 845. Goszler v. Corporation of George- town, 1285, 1286. Gott V. Carr, 169, 205. Gottschalk r. Lincoln & N. R. Co., 598. Gould, Ex parte, 1461. Gould r. Canham, 1352. Gould V. City of Rochester, 725. Gould V. Hayden, 257. Gould V. Loughran, 135. ARE TO THE PAGES. Gould v. Mayor of Atlanta, 512, 513. Gould V. Sessions, 930, 1472. Gouraud v. Trust, 1039. Gout ('. Aleploglu, 1051. Gowan v. Graves, 1382. Graeff v. Felix, 1326. Grafton v. Brady, 1511, 1512. Graham v. Birkenhead L. & C. J. R. Co., 1206. Graham v. Campbell, 1550, 1626. Graham v. City of Greenville, 522, 1265. Graham v. Dahlonega G. M. Co., 837. Graham v. Flynn, 568. Graham v. Horton, 1535. Graham v. Keene, 714. Granard v. Dunkin, 965, 966. Grand Junction Canal Co. v. Dimes, 1456, 1460. Grand Junction Canal Co. v. Shugar, 837. Grand Rapids S. F. Co. v. H. S. F. Co., 970. Grand Tower Mining Co. r. Schir- mer, 222, 223. Grant v. City of Davenport, 1280. Grant v. Cole, 144. Grant v. Crow, 662. Grant t'. Johnston, 1645. Grant v. Moore, 252. Grant v. Quick, 251. Grant County v. C. & U. S. Mort- gage Co., 1499. Grantland v. Wight, 376, 1524. Grannis v. County Commissioners, 1238. Grannis /;. Lorden, 1474. Grass /;. Hess, 222, 223. Gravenstine's Appeal, 1212. Graver v. Faurot, 139. Graves /;. Smith, 323. Gray r. Baldwin, 433, 657. Gray r. Baynard, 788. TABLE OF CASES CITED. Hx THE REFERENCES Gray v- Chaplin, 1207. Gray i\ City of Brooltlyn. 1296. Gray r. First Division St. P. & P. R. Co., 614. Gray r. Gray, 1390. Gray f. Matliias, 102. Gray v. McCance, 1508. Gray v. Russell, 959, 960, 963. Gray r. Viers, 1595. Great Falls v. Worster, 118, 768. Great Falls Manufacturing Co. r. Henry's Adm'r, 74. Great Northern R. Co. v. Lanca- shire & Y. R. Co, 587. Great Northern R. Co. c. Man- chester R. Co., 587. Great R. Co, v. Clarence R. Co., 586, 679. Great Western R. Co. r. Birming- ham R. Co., 9. Great Western R. Co. v. Oxford R. Co., 15. Great Western R. Co. r. Rushout, 41, 1209, 1210. Greatrex v. Greatrex, 1348. Greedup r. Frank.in Co., 498, 501. Green r. Board of Trade, 1195. Green r. Grean, 1322, 1384, 1385. Green r. GrifHn, 1429, 1647. Green c. Haskell, 190. Green v. Huey, 1589. Green r. Keen, 643. Green r. Lake, 725, 752. Green r. Mills, 1325, 1668. Green r. Oakes, 780, 1322. Green r. Pallas, 1486. Green r. Philadelphia F. & G. Co., 1602. Green r. Pledger, 1110. Green r. Pulsford, 1481. Green r. Reagan, 1619. Green Bay & M. C. Co. v. Kau- kauna W. P. Co., 835. Greencastle r. Hazelett, 767. ARE TO THE PAGES. Greencastle & Bowling Green Turnpike Co. r. Albin, 531, 546. Greene r. Bishop, 941, 1016. Greene v. Haskell, 195. Greene v. Mumford, 444. Greenfield v. Hutton, 261. Greenhalgh v. Manchester & B. R. Co., 20, 579, 593, 1479. Greenhood r. MacDonald, 441. Greenin r. Hoey, 1509. Greenlee v. McDowell, 260. Greensburg Company v. Sidener, 524. Greenwade v. McCormack, 410. Greenwald r. Roberts, 326. Greenwich Insurance Co. v. Car- roll, 88. Greer r. Stewart, 1606. Greer r. Van Meter, 828. Gregerson v. Imlay, 1092. Gregg V. Brower, 1348. Gregg r. Massachusetts Medical Society, 1195. Gregg r. Sanfordi 350, 498, 499, 502. Gregory i;. Diggs, 84. Gregory r. Hay, 394. Gregory r. Nelson, 838. Gregory r, Patchett, 1207. Gregory v. Stillwell, 1516. Greig v. Eastin, 1628. Gresham, Assignee, i\ Crossland, 1406. Gridley v. Tucker, 154. Griffin r. Augusta & K. R. Co., 619. Griffin r. Chadwick, 1625. Griffin r. State Bank, 1510. Griffin r. Wallace, 1583. Griffin r. Winne, 691. Griffith r. Bronaugh, 1570. Griffith r. Clarke, 188. Griffith r. Hilliard. 662, 664, 688. ■ Griffith r. Langsdale, 120. Griffith l: Reynolds, 195, 199, 1381. Ix TABLE OF CASES CITED. THE REFERENCES Griggs i\ Docter, 119. Grissler r. Stuyvesant, 383. Griswold o. Brega, 713. Griswold v. Pelton, 529. Groff V. Mayor of Frederick City, 522. Gross V. Wieand, 8. Grove v. Bush, 1619. Grover Co. v. Williams, 886. Groves v. Webber, 357. Grow V. Seligman, 1055. Grundy v. Young, 1617. Guess V. Amis, 222. Guidet V. Palmer, 889. Guillote V. Poincy, 1331, 1332. Gulf, C. & F. R. Co. 0. Fort Worth & N. O. R. Co., 1657. Gulf, C. & S. F. R. Co. r. King, 194. Gulf, C. & S. F. R. Co. V. Raw- lins, 178, 222. Gulf R. Co. V. Blake, 454. Gulf R. Co. r. Commissioners of Miami Co., 1299, 1300, 1301. Gulf R. Co. V. Morris, 454. Gulf & Ship Island R. Co. v. Town of Seminary, 1283. Gulick V. Fisher, 847, 848. Gullatt i\ Thrasher, 1644. Gum-Elastic R. Co. v. Mexico P. Co., 177, 216, 217. Gunby v. Bell, 164. Gunby v. Brown, 1367. Gunby v. Thompson, 631. Gundlach v. Hamm, 563, 720, 725, 792. Gunn V. Thornton, 249. Gustafson r. Hamm, 562, 780, 793. Gufshall /;. Salsberry, 158. Gufta Percha Co. v. Goodyear Co., 881. Gnttenberger v. Woods, 750. Guttery w. Glenn, 720, 725, 783, 785. Gutwillig, In re, 283. ARE TO THE PAGES. Gwaltney v. Gwaltney, 654. Gwin V. Melmoth, 705. Gyger v. Courtney, 1587, 1596, 1633. Gyles V. Wilcox, 963. H H. & S. R. Co. V. C, St. P. & K. C. R. Co., 586. H. & T. C. R. Co. V. Presidio, 459. Haberman Mfg. Co., In re, 1666. Hackensack Improvement Commis- sion V. New Jersey Midland R. Co., 13, 20, 579. Hackney v. Vawter, 294. Hackwith v. Damron, 390. Hadfield v. Bartlett, 66, 336. Hadley v. Bank of Scotland, 1105. Hagaman v. Commissioners of Cloud Co., 468, 471. Hagan v. Blindell, 18. Hagen v. Beth, 4. Hagenbuch r. Howard, 482. Hager v. Adams, 119. Hagerty v. Lee, 37. Hagg 0. Darley, 1158, 1175. Haggariy v. Pittman, 1397, 1399. Haggerson v. Phillips, 412. Hagner y. Heyberger, 1328. Hahn v. Hart, 191. Haigh V. Jaggar, 695. Haight l: Day, 455, 1227. Haight p. Executors. 1337. Haight V. Lucia, 647. Haight V. Morris Aqueduct, 809, 832. Haines v. Carpenter, 82, 124. Haines ;;. Hall, 830. Haines v. Taylor, 708. Hair Co. v. Huckins, 1093, 1094. Hairalson v. Carson, 1545. Halcomb v. Kelly, 232. Halcombe r. Commissioners, 1555. Halo i\ Everett, 293, 294. TABLK OF CASES CITED. Ixi THE REFERENCES Hale V. McComas, 225. Hale V. Point Pleasant & 0. R. R. Co., 614. Halff V. Green, 468. Hall V. Barrows, 1018, 1032. Hall V. Boyd, 255. Hall V. Clark, 379. Hall y. Davis, 240, 344. Hall V. Fisher, 101. Hall V. Hall, 1347. Hall V. Hickman, 234. Hall c. Hinckley, 325. Hall V. Holmes, 396. Hall V. Houston & T. C. R. Co., 444, 478. Hall f. McPherson, 1546. Hall V. Rood, 37, 850. Hall V. Taylor, 146. Hall i\ Williamson's Adm'r, 1584, 1587. Hallaran v. Donal, 1358. Hallenbeck v. Hahn, 444, 493, 498, 503. Hallett V. Cumston, 1054. Halllway v. Phillipps, 649. Halloway Bros. v. Hill, 1135. Halsey v. Brotherhood, 969. Ham V. Schuyler, 391. Hambrick v. Crawford, 210. Hambrick v. Dickey, 361. Hamer v. Kane, 49. Hamersley v. Wyckoff, 1540. Hamilton v. Amsden, 492. Hamilton v. Ball, 1103. Hamilton v. Dobbs, 95. Hamilton v. Dunsford, 1127. Hamilton v. Ely, 627. Hamilton v. Fond du Lac, 495. Hamilton v. Hendrix's Heirs, 327. Hamilton v. New York, 726. Hamilton v. Simons, 893. Hamilton r. Stewart, 397, 1610. Hamilton v. Village of Detroit, 1313. Hamilton v. Whitridge, 749. ARE TO THE PAGES. Hamilton v. Wood, 53, 1502, 1503. Hamilton-Brown S. Co. t'. Saxey, 33, 1410, 1411, 1412, 1419. Hamlin v. N. Y., N. H. & H. R. Co., 1426. Hammerslough v. City of Kansas. 555. Hammerslough v. Kansas City B. L. & S. Association, 1633. Hammersmith Co. v. Dublin Co., 968. Hammett v. Christie, 1502, 1.504. Hammond v. Winchester, 693. Hampson (-. Weare, 217. Handley v. Jackson, 222, 225. Hanford v. Blessing, 1640. Hanfstaengl v. Baines, 949. Hanfstaengl r. Empire Palace, 949. Hankey v. Abrahams, 862. Hanley v. Wallace, 1578. Hanlon o. Supervisors of West- chester, 499. Hanly v. Watterson, 683. Hanna v. McKenzie, 1602. Hanna v. Morrow, 169, 172. Hannewinkle v. Georgetown, 440, 443. Hannibal & St. J. R. Co. ;-. Shep- ley, 1630. Hanson v. Gardiner, 682, 694. Hanson r. Johnson, 351, 352. Harber v. Evans, 323. Harbison (?. Burn, 818. Harbison v. Houghton, 110, 390. Harbottle v. Pooley, 1547. Harcourt v. Good, 539. Hardcastle r. Chittle, 1404. Harden ii. Garden, 172. Harding v. American Glucose Co., 1204, 1208, 1224. Harding r. Commercial Loan Co., 431. Harding r. Eichinger, 1326. Harding r. Hawkins, 169, 171, 212. Ixii TABLE OF CASES CITED. THE REFERENCES Harding, Ex'r v. Commercial Loan Co., 362. Hardinge c. Webster, 100. Hardy c. Broaddus, 141, 192, 346. Hardy v. Martin, 1120. Hare l: Carnall, 498. Hargrave v. Hargrave, 330. Hariug r. Kauffman, 25. Harington r. Senda.l, 1196. Harkinsou's Appeal, 1180. Harkness r. Board of Public Works, 441, 500, 545. Harkrader v. Wadley, 86. Harlan & H. Co. v. Paschall, 723. Harlem Gas Light Co. c. Mayor, 533. Harman v. Howe, 1581. Harman v. Jones, 13, 14. Harmon c. Ciiy of Omaha, 526, 530. Harmon r. Dreher, 302. Harms r. Jacobs, 26, 667. Harner r. Price, 269. Harness r. Chesapeake & O. C. Co., 602. Harney r. Indianapolis R. Co., 1313. Harper r. Ranous, 1002. Harrell r. Hannum, 717. Harrington v. American L. L & T. Co., 55. Harrington v. Chastel, 90. Harrington v. Du Chatel. 90. Harrington v. Libby, 1048. Harrington v. McCarthy, 676, 677, 679. Harrington r. St. Paul & S. C. R. Co., 614, 795. Harrington v. Town of Plainview, 1299. Harris r. Pounds. 1232. Harris r. Pullman, 121. Harris r. Sangston, 1498. 1499, 1562. ARE TO THE PAGES. Harris r. Schryock, 1333. Harris v. Western & Atlantic R. Co., 1645. Harris Drug Co. v. Stucky, 1020, 1021. Harrisburg Ball Club v. Athletic Association, 1097. Harrison r. Balfour, 1600. Harrison v. Board of Supervisors, 553, 1576. Harrison i\ Bray, 413. Harrison v. Ciiy of New Orleans, 1251. Harrison v. Gardner, 1166. Harrison v. Glucose Sugar R. Co., 27, 1149, 1150, 1158, 1159. Harrison v. Good, 751. 1140. Harrison v. Gurney, 114, 1526. Harrison i\ Haas, 470. Harrison v. Seymour, 1377. Harrison v. Taylor, 1067, 1087. Harrison v. Vines, 483. Harrison (;. Yerby, 20, 1502, 1503. Harson c. Halkyard, 1036. Hart r. Buckner, 719, 780, 794. Hart r. Clark, 1507. Hart V. Hart, 1397. Hart V. Herwig, 1106. Hart r. Lazaron, 220, 221, 279. Hart D. Marshall, 43. Hart r. Mayor, 730. Hart V. Mayor of Albany, 12. 664, 665. Hart D. Mills, 1653. Hart v. O'Rourke, 177, 216. 217. Harte r. DeWitt, 974. Hartford B. Co. v. East Hartford, 855, 869. Hartt r. Harvey, 1232. Hartlepool Company /•. West Har- tlepool Company, 1526. Hartman v. Heady, 104. Hartung, In re. 58. Hartwell v. Armstrong, 1335. Harvey v. Berry, 1591. TABLE OF CASES CITED. Ixiii THE REFERENCES ARE TO THE PAGES. Harvey r. Hall, 1559. Hascall v. Madison University, 1099. Haskell v. Denver T. Co., 582. Haskell v. Ingalls, 279. Haskell v. Thurston, 762. Haskell v. Wright, 1136, 1138. Hassan v. City of Rochester, 511. Hastings v. Cropper, 217. Hat S. M. Co. r. Reinoehl, 879. Hatch V. Chicago, R. I. & P. R. Co., 1496. Hatch V. Daniels, 1498, Hatch V. Wallamet I. B. Co., 79ti, 798. Hatcher r. Hampton, 669. Hatchett v. Mt. Pleasant Baptist Church, 304. Hatfield v. DeLong, 302. Haupt's Appeal, 839. Hawarden r. Y. & L. C. Co., 34, 1415. Hawkinberry r. Snodgrass, 382. Hawkins v. Hunt, 52. Hawkins v. Ireland, 117, 118. Hawkins t\ McDougal, 337. Hawkins v. State, 1433. Hawks V. Fellows, 1432. Hawley v. Beardsley, 703, 777. Hawley v. Bennett, 1429, 1461, 1570. Hawley r. Clowes, 648, 656. Hay r. Weber, 725, 728. Hayden, In re, 284. Hayden v. Keith, 1593. Hayden v. Thrasher, 1502. Hayden i\ Yale, 120. Haydon r. Goode, 159, 1368. Hayes v. Billings, 1487. Hayes' Adm'r v. Hayes, 105. Haynes v. Bank, 73. Haynes (7. Doman, 1163. Hays, Ex parte, 23. Hays V. Dowis, 535. Hays V. Ford, 287. Hays V. Hill, 550. Hays v. Jones, 449, 590, 1236. Hays v. St. Paul M. E. Church, 1138. Hays V. Ward, 117. Hayward v. Dimsdale, 83. Hayward v. Hayward, 969. Haywood v. Cape, 22. Hayzlett v. McMillan, 166. Hazel i\ Sinex, 1380. Hazeltine v. Reusch, 135, 150. Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 1058, 1059. Hazen v. Lyndonville Bank, 117, 118, 120. Hazlehurst v. Savannah, G. & N. A. R. Co., 49, 1222, 1226. Head v. James, 14, 501. Head r. Perry, 1618. Headley r. Bell, 135. Health Department v. Purdon, 703. Healy r. Allen, 1092, 1103. Heaney r. Butte & M. C. Co., 667, 687. Hearn v. Tennant, 24, 1430, 1432, 1433, 1463. Heath v. Bucknall, 82^. Heath r. Heath, 100. Heathcot v. Ravenscroft, 1363. Heathcote v. North Staffordshire R. Co., 41, 42. Hebert r. Joly, 1542. Heck V. Vollmer, 1515. Hedges v. Meyers, 1611, 1638. Heeney v. Trustees, 312. Heffebower r. Buck, 1355, 1362. Heffran v. Hutchins, 1326, 1329. Hefner r. Hesse, 145. Heibron r. Canal Co., 829. Heilman r. L. & A. S. R. Co., 12. Heilman r. Union C. Co., 26, 843. Heine r. Appleton, 948. Heinlein v. Cross, 1440, 1647. Heinroth r. Kochersperger, 517, 549, 1484, 1655. Ixiv TABLK OF CASES CITED. THE REFERENCES Heinz i: Lutz, 1074. Heinze v. Butte & B. C. M. Co., 1663, 1664. Heller v. Atchison, T. & S. F. R. Co., 570, 1278. Helm V. Gilroy, 9, 1640. Hemiup, In the matter of, 48, 1539. Hemphill v. McKenna, 1479. Hemphill v. Ruckersville Bank. 196, 197, 1492, 1610. Hempstead v. Watkins, 135. Hemsley o. Bew, 705. Hemsley v. Myers, 86, 88. Henderson ;;. Hoy, 248, 403. Henderson r. Marcell, 1336. Henderson r. Maxwell, 1487. Henderson v. Morrill, 240, 344, 345. Henderson v. New York Central R. Co., 613. Henderson r. Ogden C. R. Co., 4, 5, 679. Henderson r. Tompkins. 950. Hendricks r. Gilchrist. 448. Hendricks v. Hughes, 1478, i486. Hendricks v. Montagu. 1056. Hendrickson v. Hinckley, 169, 232. Hendrix v. Southern Ry. Co., 385. Henley v. Cliborne. 1609. Henry v. Elder. 1215. Henry v. Gregory. 482. Henry v. Steele, 1259. Henry v. Trustees, 757. Henry v. Watson, 1553, 1565. Hentig v. Sweet, 190, 199. Hentz v. Bank. 1555. Hentz V. Long Island R. Co.. 619, 620, 792. Henwood v. Jarvis, 63. Henzel r. California Electrical Works. 918. Hepburn r. Ix)rdan. 743. Herbert i\ Pennsylvania R. Co., 4. Hereford r. (Carpenter, 1445. Herman r. Roberts. 846. Hernandez r. .lames, 226. ARE TO THE PAGES. Herr v. Bierbower, 678. Herr v. Central Ky. Asylum, 751. Herreshoff v. Boutineau, 1158, 1162. Herrick's Minors, In re, 1380. Herrman v. Beef Slough M. Co., 761, Hersey v. Supervisors, 467, 480, 481, 514. Hervey v. Smith, 4, 756. Hesing v. Scott, 1312, 1316. Hess V. Winder. 320. Heston r. Canal Commissioners, 1337. Heth V. City of Fond du Lac, 773. Hetland o. County Commissioners, 1279. Hettrick v. Page, 43. Heussler v. Thomas, 352. Hevener v. McClung, 138. Hewett V. Feustmaker, 470. Hewett V. Norton, 273. Hewett V. Western Union T. Co., 707, 722, 789. Hewitt V. Kuhl. 100, 105, 236. Hext V. Gill, 698. Heyneman v. Dannenberg, 152, 1401. Heyniger v. Hoffnung. 1549. Heywood v. Buffalo, 240. 441. 459. 498. 499, 517. Hibbard v. Eastman. 186. Hibbard v. McKindley. 1621. Hibbs V. Chicago & S. W. R. Co., 606, 607. Hibernian Benevolent Society v. Kelly, 445. 452. Hickerson v. Raiguel, 137. Hickey v. Stone, 222, 223, 1476, Hickok V. Hine, 798. Hicks V. Compton. 691. Hicks V. Knost, 283. Hicks V. Michael, 641. Hicks V. Raincock, 880. Hicks V. Silliman. 714. TABLE OF CASES CITED. Ixv THE REFERENCES Hier f. Abrahams, 1043, 1071. Higbee v. Camden & A. R. & T. Co., 13, 620, 725, 1507. Higgins r. Flemington W. Co., 831. Higgins r. Higgins, 1391. Higgins r. Keuffel, 936, 945. Higgins V. Westerveit, 20. Higgins i\ Woodwal-d, 627, 1515. Higgins Co. r. Higgins Soap Co., 1040, 1056. Higginson v. C, B. & Q. R. Co., 1645. High Mfg. Co. V. Grier, 407. Highland A. & B. R. Co. r. Birm- ingham W. Ry. Co., 20, 43. Hightower r. Mobile, J. & K. C. R. Co., 19. Hihn V. Peck, 656. Hilbish t'. Catherman, 1640. Hile r. Davison, 364. Hill V. Billingsly, 386, 391. Hill v. Bowie, 626. Hill V. Bowman, 1384, 1385. Hill V. Crowley, 2x6. Hill V. Garman, 1393. Hill V. Glasgow R. Co., 1194. Hill V. Harris, 138, 183. Hill V. Hart Davies, 969. Hill V. Hill, 1624. Hill V. Hoare, 392. Hill r. Jones, 1570. Hill V. Lockwood, 1060. Hill V. McBurney 0. & T. Co., 745, 1548. Hill V. Mitchell, 1371. Hill V. Pierson, 725, 728. Hill r. Reifsnider, 229, 269. Hill V. Robertson, 423. Hill v. Shorey, 840. Hill V. Sledge, 1644, 1649. Hill V. Thomas. 1608, 1625, 1635. Hill V. Thompson, 887, 890, 908. Hill V. Turner, 63. Hill V. United States. 156. Hilleary r. Crow, 243, 364, 365. ARE TO THE PAGES. Hiller v. Collins, 1499. Hiller v. Gotten, 247, 1563. Hilles v. Parish, 1230. Hilliard v. Chew, 221. Hillman y. Hurley, 687. Hills V. Croll, 1149. Hills V. Growl, 1097. Hills V. Exchange Bank, 487, 488. Hills V. Miller, 809, 810, 1124, 1136, 1143. Hilson Co. r. Foster, 1079. Hilton V. Granville, 20. Hinchman v. Paterson H. R. Co., 562, 725, 726, 730, 1532. Hinckley v. Haines, 349. Hinckley r. Miles, 196, 198. Hine v. Stephens, 265. Hines v. Beers, 169. Hines v. Munnerlyn, 431. Hines v. Rawson, 1452. Hinkle r. Margerum, 371, 377. Hinsdele, In re, 288. Hinson i: Brooks, 413. Hires Co. v. Consumers' Co., 1049, 1066. Hirsch v. Jonas, 1083. Hirst V. Denham, 1025, 1069. Hiss V. McCabe, 677. Hixon V. Oneida County, 445, 450. Hoagland v. Delaware, 542. Hoagland v. Titus, 1502, 1504. Hoare v. Bremridge, 104, 105. Hobart v. Detroit, 533. Hobart v. Ford, 1640. Hobbs V. Amador & S. C. Co., 697. Hobbs V. Duff, 238. Hobhouse r. Hamilton, 90. Hoboken Ferry Co. v. Baldwin, 43. Hockholzer v. Eager, 881. 909, 910, 919. Hodge V. Giese, 853. Hodge V. Sloan, 1136, 1138. Hodges, Ex parte, 73. Hodges V. Baltimore W. P. R. Co., 614. Ixvi TABLE OF CASES CITED. THE REFERENCES Hodges V. McDuff, 1640. Hodges V. Planters Bank, 236. Hodges V. S. & R. R. Co., 602, 604, 614. Hodges V. Welsh, 1015, 1016. Hodgkins v. Farrington, 676, 679. Hodgman v. Chicago & St. P. R. Co., 1301, 1302. 1313. Hodgson V. Earl of Powis, 583. Hodgson {-. Murray, 1112. Hodson V. Coppard, 1450. Hodson i>. Eugene Glass Co., 1108, 1109. Hoey V. Coleman, 46, 441. Hoff V. Olson, 483. Hoffelmann v. Franke, 1610. Hoffman v. Board of Commission- ers, 1279. Hoffman v. Kuhn, 812. Hoffman v. Livingston, 1567. Hoffman v. Shupp. 188. Hogencamp v. Paterson H. R. Co., 730, 731. Hogg V. Kirby, 968, 1051. Hogg i\ Scott, 976, 984. Holbert i: St. Louis, K. C. & N. R. Co., 619. Holden v. City of Alton, 1237, 1268, 1269. Holden's Administrators r. Mc- Makin, 1364. Holderstaffe v. Saunders, 86, 262. Holdredge v. Gwynne, 50, 152, 1397, 1552. Hole V. Thomas, 650, 651, 656. Holland, In re, 274. Holland r. Mayor, 495, 511, 526, 530. Holland r. Trotter, 199, 200. Hollenbeak v. McCoy, 176. Holliday's Ex'rs v. Myers, 1578. HoUinger v. Reeme, 136. Tlollingsworlh r. Trueblood, 347. Hollis r. Shaffer, 1181. HolllK /■. Willianis. 1649, 1653. HoUister v. Barkley, 1498. ARE TO THE PAGES. HoHoway v. Holloway, 1041, 1050, 1633. Holmes v. Jersey City, 558. Holmes v. Oldham, 1260. ' Holmes v. Stateler, 139, 1611. Holmes v. Steele, 183. Holsman i\ Boiling Spring Bleach- ing Co., 763, 765, 766. Holstein v. County Board, 128. Holt v. Bank of Augusta, 1474, 1502. Holt r. Corporation of Rochdale„ 774. Holt's Ex'rs v. Graham, 212. Holthaus V. Hornbostle, 1384, 1385. Holzapfel's Composition Co. f. Rahtjen's Composition Co., 1045,, 1046, 1080. Home & Colonial Stores r. Colls, 4, 817, 820. Home E. L. & P. Co. i\ Globe T. P. Co., 1645. Home Insurance Co. r. Howell, 128. Home Life Ins. Co. r. Selig, 102. Home Savings & T. Co. i\ Hicks, 86, 100. Hone f. Moody, 1542. Hood V. Aston, 1110, 1354. Hoofman v. Marshall, 1627. Hooker r. Austin, 411, 1483, 1518. Hooper v. Broderick, 1147. Hooper i\ Cooke, 74. Hooper v. Dora C. M. Co., 662, 672. Hoover v. M'Chesney, 1339. Hopkins v. Chaddick, 683. Hopkins r. Cravey. 552. Hopkins v. Greensburg Company, 524. Hopkins v. Keller, 555. Hopkins i\ Medey, 176. Hopkins v. Oxley Stave Co., 1410, 1412, 1415. Hopkins /■. United States, 1186. Hopkins Amusement Co. r. Froh- man, 1053, 1543. TABLE OF CASES CITED. Ixvii THE REFERENCES Hopner v. Brodripp, 1155. Hord V. Trimble, 1588, 1620. Horn V. Garry, 499. Horn V. Kilkenny, 66. ^ Horn V. Perry, 1571. Horn V. Queen, 188. Horner v. Jobs, 110. Horner v. Marshall's Adm'x, 187. Horner t\ Popham, 652. Hornesby v. Burdell, 45, 1548. Hornor v. Leeds, 55, 1559. Horsky v. Helena C. W. Co., 1099, 1106. Horton v. Hoyt, 552, 590, 602. Horton v. White, 337. Hosmer v. Campbell, 1623, 1624. Hospers v. Wyatt, 1238. Hostetter v. Fries, 1021. Hostetter v. Vowinkle, 1033, 1034. Hostetter Co. v. Becker, 1063. Hostetter Co. i\ Brueggeman Dis- tilling Co., 1064. Hotchkiss V. Piatt, 1592, 1614, 1616, 1632, 1636. Hotten V. Arthur, 960. Hotz V. Hoyt, 716. Houchens v. Houchens, 1079. Hougan r. Milwaukee & St. P. R. Co., 837. Hough V. Chaffin, 85, 1352. Houghton V. Austin, 444, 458. Houston V. Hurley's Adm'rs, 361. Hovey v. McDonald, 1647, 1657. Hovey v. Rubber Tip Pencil Co.. 1632. Hovey v. Stevens, 906. Howard i). Bennett, 1521. Howard -v. Durand, 1448. Howard v. Hopkyns, 1120. Howard v. Lee, 735. Howard v. Parker, 1344. Howard r. Randolph, 1500. Howard v. Simmons, 257, 1554. Howard i\ Woodward, 1177. Howe V. Howe Machine Co., 1084. ARE TO THE PAGES. Howe V. Morton, 882, 907, 913. Howe D. Norman, 829. Howe r. Rochester I. M. Co., 695. Howe V. School District, 312. Howe r. West End R. Co., 564. Howe V. Willard, 24, 1432, 1433. Howell r. Chicago & N. W. R, Co., 1192. Howell V. City of Peoria, 511. Howell V. City of Tacoma, 472. Howell V. Miller, 963. Howell V. Motes, 182. Howell v. Robb, 1565. Howell V. Thomason, 146, 167. Howell Co. V. Pope Glucose Co., 810, 830, 841. Hower v. Weiss M. & E. Co., 1202. Howes V. Howes, 151Z, 1564. Howes V. Racine, 467. Hoxsie -v. Hoxsie, 829. Hoyt V. Gelston, 1519, 1657. 1658. Hoyt V. J. T. Lovett Co., 1023. Hoyt V. Mackenzie, 966. Hubbard v. Hobson, 167, 212. Hubbard v. Hubbard, 1403. Hubbard v. Jasinski, 112, 410. Hubbard r. Martin, 207. Hubbard r. Miller, 1157, 1166. Huber v. Myers Sanitary Depot, 919. Huck V. Chicago & Alton R. Co., 444, 508. Hudson v. Commissioners of At- chison Co., 546. Hudson r. Kline, 234, 235. Hudson r. Maddison, 758. 1571. Hudson V. Mayor, 1237, 1276. Hudson V. Plets, 1442, 1443. Hudson V. Schwab, 281. Hudson River T. Co. r. Watervllet, T. & R. Co., 576, 1642. Huebschman i\ Baker, 149. Huels V. Hahn. 1326. Huff r. Markham, 396. Huffman r. Hummer, 1486. Ixviii TABLE OF CASES CITED. THE REFERENCES ARE TO THE PAGES. Hugg V. City of Camden, 1281. Hughes V. D'Arcy, 330. Hughes V. Hughes Adm'r, 1589. Hughes r. Kline, 459. Hughes i\ McCoun, 232. Hughes V. M. El. R. Co., 564. Hughes v. Worley, 420. Hughes' Adm'r c Wickliffe, 1601. Hughlett r. Harris, 632, 633. Hulett V. Inlow, 1386. Huling V. Ehrich, 463, 464. Hull V. Ely, 1317. Hull V. Thomas, 24, 1432, 1433. Hulley r. Security T. & S. D. Co., 827. Hullhorst V. Scharner, 1108. Hulme r. Shreve, 809, 832. Humboldt D. P. Association v. Stevens, 1232. Humfeldt v. Moles, 1598. Humiston v. Stainthorp, 927. Hummert v. Schwab, 1484, 1547. Humphreys v. Harrison, 435, 657, 658. Humphreys v. Humphreys, 1554. Humpnreys v. Hurtt, 1098. Humphreys v. Leggett, 204. Humphreys i\ Neison, 448. Hundley v. Harrison, 704, 744. Hunnewell r. Cass County, 507. Hunt, In re, 278. Hunt V. Browne, 634, 645. Hunt V. Burton, 1586. Hunt V. Hunt, 1393. Hunt V. Peake, 675, 812. Hunt V. Sain, 4. Hunt V. Scobie, 1578. Hunt V. Steese, 637. Hunter v. Moore, 876. Hunter v. Nockolds, 1526. Hunter's Appeal, 1389. Huntington v. Central P. R. Co., 498. Huntington r. Crouter, 214. Huntington r. Palmer, 468. Huntington & K. L. D. Co. v. P. P. Mfg. Co., 718. Huntley, In re, 1441. Hurd i\ Eaton, 244, 330. Hurd i\ Waters, 1282. Hurlburt v. Banks, 1310, 1311. Hurlbut V. Thomas, 224. Hurley v. Levee Commissioners, 1333. Huron Waterworks Co. v. City of Huron, 1502, 1503. Hursen v. Gavin, 1157, 1159. Huskins v. McElroy, 1487. Hussey v. Gallagher, 1232. Hussey i: Whiteley, 886. Hutaff V. Adrian, 415. Hutchins v. Hope, 1486, 1492. Hutchins v. Smith, 735, 736. Hutchinson r. Biumberg, 1078. Hutchinson r. City of Omaha, 530. Hutchinson r. Green, 124. Hutchinson v. Hutchinson's Ex'rs, 96. Hutchinson v. New York Central Mills, 1406. Hutchinson v. Thompson, 797. Hutchison v. Johnson, 424. Hutton r. Scarborough Cliff Hotel Co., 1221, 1223. Hyatt r. Bates, 1324. Hyde r. Bancroft, 284. Hyde r. Ellery, 1396, 1397. Hygeia D. W. Co. r. Hygeia Ice Co., 1043. Hygeia M. S. Co. v. Village of Waukesha, 781, 1531, 1532. Hygeia Water Ice Co. r. N. H. I. Co., 1058. Hyland r. Brazil B. C. Co., 472, 485. Hyland r. C. I. & S. S. Co., 468. 485. Hyland A. & B. R. Co. r. Birming- ham Ry. & E. Co., 1565. TABLE OF CASES CITED. IxLx THE REFERENCES Hyman r. Kelly, 423. Hyser r. Mansfield, 402. Iglehart r. Lee, 212. Her (,-. Colson, 468, 472. Illingworth r. Spaulding, 883. Illinois r. Cook, 1194. Illinois Central R. Co. v. Caffrey, bOO. Illinois Central R. Co. r. City of Chicago, 50, 102. Illinois Central R. Co. r. County of McLean, 446, 504, 505. Illinois Central R. Co. r. Garrison, 19, 83. Illinois Central R. Co. v. Hodges, 460, 504, 505. Illinois Company v. St. Louis, 725, 728. Imboden v. Etowah & B. B. M. Co., 837. Imlay r. Norwich & W. R. Co., 930. Imperial Co. v. Broadbent, 705, 735, 736. Imperial Gas Light Co. r. Clarke, 1446. Improved Fig Syrup Co. r. Califor- nia Fig Syrup Co., 1080. Incas L-. Bank, 258. Inchbald r. Barrington, 745. Inchbald v. Robinson, 745. Indian R. S. Co. i: E. C. T. Co., 1483. Indiana Mfg. Co. v. Koehne, 441, 466. Indiana Miller r. Board of Com- missioners, 1276. Indianapolis v. Gilmore, 494. Indianapolis Gas Co. v. City of Indianapolis, 20. Indianapolis N. G. Co. r. Kibbey, 663, 674. ARE TO THE PAGES. Indianapolis Water Co. r. Ameri- can Strawboard Co., 763. Inge V. Board of Public Works, 1238, 1268, 1269. Ingles c. Straus, 1476, 1477, 1513, 1653. Ingraham v. Bunnell, 400, 823. Ingram v. Morecraft, 1118, 1119. Ingram r. Morgan, 360, 361, 371. Ingram v. Stiff, 987. Inhabitants of Greenville r. Sey- mour, 1285, 1287. Inhabitants of Needham r. N. Y. & N. B. R. R. Co., 1531. Inhabitants of Raritan r. P. R. R. Co., 724. Inhabitants of Winthrop r. New England C. Co., 1531. Innes v. Stewart, 416. Insurance Co. r. Bouner, 441, 169. Insurance Co. c. Brune's Assignee, 67. International Committee of Y. W. C. A. V. Y. W. C. A., 1025. International & G. N. R. Co. v. Smith County, 504. International Postal S. Co. v. Bruce, 923. Inter-Ocean Co. v. Associated Press, 1202. Investor Publishing Co. v. Dobin- son, 1056. 1057. lolanthe Case, 1011. Ionia, etc. Insurance Co. v. Davis, 23. Iowa Railroad Land Co. v. Carroll County, 444, 452. Iowa Railroad Land Co. v. County of Sac, 444, 452. Ireland v. Kelly, 1499, 1513. Irick V. Black, 1378, 1502. Irish, l7i re. 1180. Iron Age Publishing Co. v. W. W. T. Co., 1092, 1095, 1097, 1149. Ixx TABLE OF CASES CITED. THE REFERENCES Iron Mountain Bank v. Mercantile Bank, 1593. Iron Mountain Co., In re, 285. Iron Mountain R. Co. v. City of Memphis, 125. Irvin t". New Orleans, St. L. & C. R. Co., 496. Irvin V. Railroad Co., 479, 490. Irving, In re, 274. Irving r. Hughes, 273, 274. Irwin c. Dane, 879. Irwin i\ Davidson, 695. Irwin V. Dixon, 702. Irwin /■. Great S. T. & T. Co.. 48. Irwin r. Lewis, 47, 349, 402. Isaac V. Humpage, 1547. Isaacs r. Cooper, 887. Isaacs V. Daly, 1002. Isam r. Hooks, 1644. Isenberg c. East India H. E. Co., 5. 6. Israel c. Wolf, 103. Ives '•. Irey, 531. Iveson r. Harris, 1448, 1526. J. V. S., 1359. Jacks '■. Bigham, 144. Jackson r. Andrews, 85. Jackson v. Arnold, 1570. Jackson r. Barnard, 1554. Jackson c. Bunnell, 1557. Jackson r. Cator, 643. Jackson r. Darcy. 65, 1500. Jackson r. Detroit, 444, 524. Jackson /■. Duke of Newcastle, 820. Jackson v. Jackson, 1507. Jackson r. Jones, 1509. Jackson r. Leaf, 70. Jackson r. Normanby Brick Co., 5. Jackson r. Norton, 377. Jackson r. Rainey, 1387. Jackson r. Snell, 348. Jackson r. Stevenson, 1137, 1143. ARE TO THE PAGES. Jackson & S. Co. r. Philadelphia, W. & B. R. Co., 1559. Jacksonport v. Watson, 1238. Jacob V. Hall, 1546. Jacobs V. Miller, 1608. Jacobson v. Boening, 772. Jacobson r. Metzgar, 100. Jacomb v. Knight, 824. Jacox V. Clark, 842. Jaedicke v. Patrie, 162. Jager v. Doherty, 1310. James v. Breaux, 422. James v. Downes, 1430, 1463. James v. James, 1037, 1045. James v. Lenily, 1504. James v. Markham, 1657. James r. Norris, 1505. James v. Roberts, 1108. James v. Withers, 1575. James River Co. r. Anderson, 1188. Jameson v. Bartlett. 1635. Jameson r. Dublin Distillers Co., 1028, 1037, 1041, 1071, 1072. Jamison v. Dulaney, 1634. Jarden r. Philadelphia, W. & B. R. Co., 582. Jarret r. Goodnow, 237. Jarrold /;. Heywood, 962. Jarrold r. Houlston, 960, 986. Jarvis v. Chandler, 69. Jarvis r. Henwood, 6. Jarvis v. Peck, 27. Jarvis /;. Town of Grafton, 552. Jay v. Michael, 846. Jay V. Richardson, 1135. Jay's Case, 91. Jaynes v. Brock, 374, 375. Jefferson r. Bishop of Durham, 625. Jefferson r. Hamilton. 1545. Jefferson r. Markert, 1163, 1179. Jeffersonville r. Patterson, 441. Jenkins r. Baxter, 1232. Jenkins v. Felton, 1476. Jenkins r. Greenwald. 921. Jenkins v. Rock Co., 500. TABLE OF CASES CITED. Ixxi THE REFERENCES Jenkins v. Waller, 1502. Jenks r. Ludden, 1407. Jenks r. Williams, 827. Jennings v. Beale, 49. Jensen v. Norton, 9, 1668. Jerome r. Ross, 681, 682, 694. Jersey City r. Fitzpatrick, 1295. Jersey City G. Co. i'. Consumers' G. Co., 864. Jersey City Printing Co. r. Cassi- dy, 1410, 1412, 1413, 1414. Jervis v. White, 1354. Jessup & Moore Paper Co. v. Ford, 701, 763. Jessup Paper Co. v. Ford, 1442. Jesus College v. Bloom, 638, 639. Jeter r. Langhorn, 1617. Jevne v. Osgood, 1636. Jewett V. Bowman, 1443, 1457, 1510. Jewett V. Dringer, 1494. Jewett V. Sweet, 715. Jillett V. Union National Bank, 211. Johnson v. Aldricn, 884. Johnson v. Alexander, 1483. Johnson v. Bauer, 1049. Johnson v. Board of Education 1653. Johnson v. Bouton, 1595. Johnson v. Brett, 548. Johnson r. City of Milwaukee. 498, 501. Johnson v. City of Rochester, 671. Johnson v. Connecticut Bank, 158. Johnson r. Elwood, 1598. Johnson r. Farnum, 1397. Johnson v. Gere, 366. Johnson v. Griffin Banking and Trust Co., 402, 403. Johnson v. Hahn, 493, 498, 503. Johnson r. Hall, 10, 1576. Johnson r. Huber, 194. Johnson r. Johnson, 1390, 1391. Johnson r. Jones, 1373. Johnson r. Kitch, 157. ARE TO THE PAGES. Johnson v. La Variete Association, 1217. Johnson r. Roberts, 448. Johnson v. S. B. & L. Assn., 1483. Johnson v. Sanitary District, 1245, 1262. Johnson v. Shrewsbury & B. R. Co., 1098, 1148. Johnson v. Vail, 1384, 1385. Johnson r. Vaughan, 1578. Johnson i:. Woodruff, 321. Johnson /-. Wyatt, 751. Johnston r. Alexander, 1514, 1515. Johnston r. C, M. & St. P. R. Co., 1502. Johnston c. Corey, 1478. Johnston r. County of Sacramen- to, 1289. Johnston r. Glenn, 397. Johnston v. Hyde, 684, 839. Johnston c. Jones, 1232, 1233. Johnston r. Young, 68. Johnston Co. v. Hunt, 1154. Johnston Harvester Co. «. Mein- hardt, 1417, 1420. Johnstone v. Eisenbeis, 1640. Johnstone v. Hall, 1122. Johnstown C. M. Co. v. Veghte, 839. Jollie V. Jaques, 936, 938, 939, 1012. Jonas r. Cincinnati, 442. Jones i: Allen, 1583, 1587. Jones V. Bennett, 95, 265. Jones v. Black, 1333. Jones r. Brandon, 329, 1505. Jones r. Britton, 647. Jones V. Cameron, 169. Jones V. Cardwell, 1533. Jones r. Coker, 184. Jones r. Commercial Bank, 1475. Jones r. Commissioners of Gran- ville, 1326. Jones V. Davis, 478. Jones r. Edwards, 1481. Ixxii TABLE OF CASES CITED. THE REFERENCES Jones V. Frosh, 264. Jones V. Garcia del Rio, 1571. Jones V. Geddes, 116. Jones V. Heavens, 1179. Jones V. Hodges, 919. Jones V. Hui'iburt, 1301. Jones V. Jones, 231, 1100, 1644. Jones V. Little Rock, 1312. Jones V. Macon & B. R. Co., 50, 51, 1552. Jones V. Magill, 1546, 1564. Jones V. Oemier, 33. Jones V. Ramsey, 74. Jones r. Reed, 1239. Jones V. Rosedale S. R. Co., 1630. Jones V. Stallsworth, 101. Jones V. Thacher, 141, 1645. Jones V. Williams, 1095, 1097, 1146. Jones Co. v. Hunger Improved C. M. Co., 1668, 1669, 1670. Joplin & W. R. Co. V. K. C, F. S. & M. R. Co., 1660. Jordan v. Lanier, 667, 668. Jordan r. Volkenning, 1590. Jordan's Adm'x r. Williams, 153. Joseph V. Burk, 33, 86, 164. Joseph r. Doubleday, 1518. Joseph V. Macow^sky, 1079. Joseph V. McGill, 318, 1401. Joslyn r. Dickerson, 1618, 1629. Joyce V. Barron, 530. Judah V. Chiles, 1476. Judd V. Hatch, 402, 1486. Judd r. Town of Fox Lake, 520. Judson V. Porter, 252. Judson V. Smith, 1341. Ju'ian V. Central Trust Co., 125, 256. .Tulian v. Hoosier D. Co., 1043, 1089. Jung V. Neraz, 736, 757. Justice V. Scott, 96. Justices V. Griffin & W. P. P. R. Co.. 865. ARE TO THE PAGES. K Kaehler r. Dobberpuhl, 1427. Kaehler v. Halpin, 1427. Kahn v. Kerngood, 1502. Kaighn v. Fuller, 1499. Kaime v. Harty, 1291. Kamm c. Stark, 248. Kane v. Casgrain, 1597. Kane v. Huggins Cracker Co., 885, 912. Kane r. Vand^rburg, 641. Kann v. Diamond Steel Co., 1072. Kansas City, F. S. & G. R. Co. v, Tontz, 444. Karrer r. Berry, 788. Kathreiner's Maltzkaffe, etc. v. Pastor Kneipp M. Co., 1018. Katz V. Moore, 191, 287. Kaufman v. Stein, 713. Kavanagh ;:. Mobile & G. R. Co., 738. Kay V. Kirk, 829. Kean r. Asch, 850. Kean r. Colt, 11, 1548. Kean r. Johnson, 1194, 1204, 1208. Keane r. Chamberlain, 123. Keane r. Wheatley, 934. Kearney r. Andrews, 1251. Keath i\ Key, 1377. Keaton v. Baggs, 321. Keber r. Mercantile Bank, 1593. Keel V. Bently, 1653. Keeler r. White, 1576. Keeling v. P., V. & C. R. Co., 12. Keen r. Mayor, 1237, 1243. Keene v. Bristol, 554. Keene r. Clarke, 992, 994, 995, 996, 999. Keene r. Kimball, 993, 999. Keene v. Wheatley, 991, 992, 994, 996, 999, 1008. Keep r. Michigan Lake Shore R. Co., 423. TABLE OF CASES CITED. Ixxiii THE REFERENCES Kehler v. The Jack Manufacturing Co., 1560. Keigwin c. Drainage Commission- ers, 444. Keller, In re, 289. Reiser v. Lovett, 705. Keith V. Harris, 142. Keith V. Henkleman, 1586, 1594, 1612, 1629, 1631. Keith V. Wilson, 150. Kekewich v. Marker, 657. Kelk V. Pearson, 817, 820. Kellar v. Bullington, 663, 667. Keller v. Goodrich Co., 1048, 1050. Kelley r. Briggs, 1502. Kelley v. Krless, 190, 196. Kelley v. Saltmarsh, 851. Kelley v. Whltmore, 1483. Kelley v. Ypsilanti Mfg. Co., 891, 892, 970. Kellogg i: Ely, 524. Kellogg r. King, 47, 673. Kellogg V. Oshkosh, 441, 444, 447. Kellogg V. Russell, 281. Kelly V. Carter, 1136. Kelly V. Herb, 1397. Kelly V. Hooper, 942, 944. Kelly V. Mariposa L. & M. Co., 1205. Kelly V. Mayor, 1245. Kelly V. Morris, 21, 942, 943, 975. Kelly V. Robb, 688. Kelly V. Wiard, 190. Kelsey v. King, 1245, 1248, 1249, 1295. Kelsey v. Wayne Circuit Judge, 23. Kemble r. Kean, 1096, 1149. Kemp V. Bird, 1134, 1135. Kemp V. Sober, 1127. Kemp V. Tucker, 102. Kempson v. Kempson, 1394, 1395, 1432, 1462. Kenan v. Johnson, 1394. Kendall v. Dow, 247. ARE TO THE PAGES. Kendall v. Missisquoi & C. R. R. Co., 606. Kendall v. Winsor, 253. Kennedy v. City of Troy, 513, 546, Kennedy v. Earl of Cassillis, 114, Kennedy v. Lee, 1164. Kennedy v. Montgomery Co., 451,. 1238. Kennedy v. Scovil, 770. Kennedy's Admr'x v. Hammond, 1622. Kennerty v. Etiwan P. Co., 702, 718. Kenny v. Gillet, 1071, 1079. Kenopsky v. Davis, 746. Kensit v. Great Eastern R. Co., 772. Kent V. Bierce, 1580. Kent V. De Baun, 97. Kent V. Jackson, 1207. Kent V. Mehaffy, 56. Kent V. Quicksilver M. Co., 1223. Kent V. Ricards, 190, 199, 1510. Kentucky Heating Co. r. Louis- ville Gas Co., 1444, 1460. Kentucky & I. B. Co. v. Krieger, 1647. Kentucky U. R. Co, v. Bourbon County, 1302. Kenyon v. Clarke, 142. Keppel V. L. C. & N. Co., 770. Kerlin r. West, 645. Kern i\ Strausberger, 213. Kern Barber S. Co. v. Freeze, 222, 225, 227. Kernaghan v. Williams, 1221, 1223. Kerns v. Chambers, 1486. Keron v. Coon, 1499. Kerr v. City of New Orleans, 1645. Kerr v. City of Waseca, 516. Kerr v. Corporation of Preston, 86. Kerr r. Hill, 186. Kerr v. Trego, 1259, 1326. Kerr i\ Wooley, 465. Kersey v. Rash, 169. Ixxiv TABLE OF CASES CITED. THE REFERENCES JCey C. G. L. Co. v. Munsell, 242, 350. Keyes r. Eureka Mining Co., 909, 926. Keyes v. Pueblo S. & R. Co., 16, 898, 910. Keyser v. Rice, 117, 118, 119. Keystone Bridge Company r. Sum- mers, 787. Keystone Iron Co. v. Martin, 1669. Keyton v. Brawford, 367, 368. Kicklighter v. Rosenthal, 850. Kidd V. Horry, 970. Kidd V. Johnson, 1055. Kilbourne v. Allyn, 1310. Kilbourne v. St. John, 1310. Kilcat V. Sharp, 969. Kilpatrick v. Smith, 1326. Kilpatrick v. Tunstall, 246, 1378. Kimball v. Darling, 436. Kimball r. Merchants S. L. & T. Co., 478. Kimbark v. Raymond, 445. Kimberley r. Jennings, 1092. 1096, 1149. Kimberly & C. Co. v. Hewitt, 25. Kimm v. Steketee, 1602. Kimpton v. Eve, 1430, 1431. Kinahan i\ Bolton, 1042, 1069, 1087. Kincaid's Appeal, 332. King i: Baker, 18?, 214. King /■. Baldwin, 1375. King r. Buskirk, 664. King /•. Campbell, 688, 690. King r. Clark, 1511, 1512. King V. Clay, 242. King V. Ford River L. Co., 524. King V. La Branche, 1619. King V. McCully, 846. King V. Miller, 826. King V. Morris, 716, King r. Reed, 982. King )•. Smith, 6.57. King V. Stuart, 688. King V. Watts. 269. ARE TO THE PAGES. King V. Williamson, 664. Kingsbury v. Flowers, 756, 757. Kinkaid v. Hiatt, 77. Kinley Mfg. Co. v. Kochersperger, 455, 460. Kinnear Mfg. Co. v. Beatty, 720, 728, 785. Kinney r. Ogden's Adm'r, 160. Kinney v. Redden, 68. Kino c. Rudkin, 821. Kinports v. Rawson, 362, 366. Kmsler r. Clarke, 641, 1569. Kinsman Street R. Co. u. Broad- way & N. S. R. Co., 587. Kinyon i\ Duchene, 442. Kip V. New York & H. R. Co., 102, 621. Kirley v. Pascault, 137. Kircher v. Pederson, 1238, 1313. Kirchner v. Miller, 388. Kirk V. United States, 221. Kirkman v. Handy, 705, 707. Kirkpatrick v. Brown, 849. Kirkpatrick v. Peshine, 1135, 1136, 1137. Kirwin v. Murphy, 349, 1343. Kisor's Appeal, 310. Kissel V. Lewis, 745. Kittell V. Missisquoi R. Co., 606. Kittle V. De Lamater, 1638. Kitzman v. Minn. T. Mfg. Co., 43, 180, 195, 267. Klinck V. Black, 336, 1647. Knapp, Stout & Co. v. St. L. T. R. Co., 793. Kneedler r. Lane, 1476. Knight t\ Flatrock & Waldron Turnpike Co., 493. Knight r. Hirbour, 1650. Knight r. Simmonds, 1136, 1143. Knighton v. Young, 326. Kniskern v. Lutheran Churches, 292, 309. Knopf V. Chicago Real Estate Board, 549. TABLE OF CASES CITED. Ixxv THE REFERENCES Knopf V. First National Bank, 489, 547. Knopf r. Kochersperger, 549. Knott V. Morgan, 1050. Knowles v. Peck, 1457. Knowlton v. Providence & N. Y. S. Co., 129. Knowlton r. Supervisors, 465. Knox V. Randall, 150. Knox County v. Harshman, 135, 205, 1647, 1657, 1658. Knudsen r. Benn, 1410, 1413, 1420. Kochersperger r. Larned, 455, 460. Koester i\ State, 1450. Koger r. Kane, 362, 370, 379, 409. Kohler Mfg. Co. v. Beeshore, 1018, 1079. Kohlsaat r. Crate, 1620, 1629. Kohn V. Kerngood, 1654 Kohn V. Lovett, 209. Kohn r. Old T. M. Co., 20, 38. Kolff r. St. Paul F. Exchange, 1195. Koon V. Snodgrass, 499. Kostering r. Seattle B. & M. Co., 1032, 1075, 1083. Kraft r. Welch. 1126. Kramer c. Old, 1158, 1163, 1168, 1169. Krauss v. Peebles' Sons Co., 1079. Kraut's Appeal, 852. Krehl r. Burrell, 4, 852. Krieschel v. County Commission- ers, 1271. Krolik r. Wayne Circuit Judge, 23. Krone r. Krone, 1546. Kronschnabel-Smith Co. v. Kron- schnabel, 1157. Krug r. Davis, 223. Kuehn v. City of Milwaukee, 725, 728. Kuhl V. Martin, 1504. Kuhn r. McNeil. 353, 354. Kulinski r. Fambrowski, 307. Kurtz r. Beatty, 320. ARE TO THE PAGES. Kurtz V. Spence, 970. Kyes r. St. Croix County, 1276, 1279, 1313. L. L. & G. R. Co. V. Clemmans, 533. Labouchere v. Dawson, 1169, 1357. Labouchere r. Earl of Wharncliffe, 1196. Lacey v. Administrators, 190. Lacey v. Beaudry, 333 Lackay v. Curtis, 1527. Ladd V. Cameron, 901. Ladd V. Osborne, 672. Ladd V. Oxnard, 944, 979, 980. Ladd V. Spencer, 520, 527. Ladies Benevolent Society v. Ben- evolent Society, 1199, 1506. Lady Bryan v. Lady Bryan, 52. Lady Bryan Mining Co., In re, 280. Lady Poine's Case, 334. Laeber v. Langhor, 432. Laethe 'V. Thomas, 255. Lafayette v. Cox, 1313. Lafon V. Desessart, 169. Laird, Norton Co. r. County of Pine, 482. Lake Erie & W. R. Co. v. Clug- gish, 1576. Lake Erie & W. R. Co. v. Michen- er, 602. Lake Erie & W. R. Co. r. Young, 715. Lake Shore & M. S. R. Co. v. Chi- cago & W. I. R. Co., 586. Lake Shore & M. S. R. Co. v. Fel- ton, 673, 1507. Lake Shore & M. S. Ry. Co. v. Taylor, 10, 38, 1430, 1432. Lake View r. Letz, 705, 784. Lamar v. Lanier H. Co., 1214. Lamb v. B., C. R. & M. R. Co., 538. Ixxvi TABLE OF CASES CITED. THE REFERENCES Lamb v. Drew, 111, 317. Lamb v. Evans, 975. Lamb v. Grand Rapids School F. Co., 944. Lamb v. Shaw, 1635. Lambert f. Alcorn, 1595, 1632, 1634. Lambert c. Haskell, 1585, 1614. Lambert v. Lambert, 107. Lambert v. Mallett, 1369. Lambeth r. De Bellevue, 517, 518. Lamborn v. Covington Company, 769. Lamoille Valley R. Co. v. Bixby, 1350. La Mothe v. Fink, 47, 48, 425, 428. Lampton r. Usher's Heirs, 375, 380, 1627. Lanahan v. Gahan, 667, 668. Lancaster & C. R. Co. v. The North Western R. Co., 41, 42. Lander r. Mercantile Bank, 465. Landes v. Globe P. M. Co., 1542. Landis v. Wolf, 1615, 1631, 1632, 1635. Landreth v. Landreth, 1037. Lane v. Clark, 70. Lane v. Morrill, 1245, 1276. Lane v. Newdigate, 5, 768. Lane v. Roselius, 1592. Lane v. Schomp, 1325. Lane & Bodley Co. v. Locke, 909. Laney v. Jasper, 773. Langabier v. Fairbury, P. & N. R. Co., 613, 614, 1554. Langdon v. Templeton, 76. Langley, Ex parte, 1434. Langley v. Ashe, 176, 267. Langworthy v. Dubuque, 521. Langworthy r. McKelvey, 1631. Lanier v. Adams, 419. Lannes v. Courege, 84. Lanning v. Osborne, 125. Lanpheimor r. Rosonbaum, 1403. Lansdowno r. Lansdowne, 639. Lansing v. Easton, 1429. ARE TO THE PAGES. Lansing v. Eddy, 146, 174, 184, 228, 1102. Lansing v. North River S. B. Co., 855. Lanterman v. Blairstown R. Co., 609. Lanzit v. Sefton Mfg. Co., 1158, 1159. Lapeer Co. v. Hart, 75, 77. Lapere v. Luckey, 826. Laramie National Bank v. Stein- hoff, 1425, 1428, 1429, 1472. Lare v. Harper & Bros., 980. Large v. Ditmars, 1507. Larrabee v. Lewis, 1020.. Larne v. Friedman, 1370, Lasala v. Holbrook, 810. La Salle & P. H. & D. R. Co. v. Donoghue, 455. Lasater v. Green, 468. Lathrop v. Marsh, 642. Latimer v. Aylesbury & B. R. Co., 608. Lattimer v. Livermore, 811, 1136, 1137, 1145. Laughlin v. Board of Commission- ers, 1238. Laughlin v. President, 705, 707. Law I). Wilgees, 632. Lawley i\ Lawley, 649. Lawrence v. IngersoU, 1326. Lawrence v. Leidigh, 1330, 1331. Lawrence v. Mayor, 321, 1293. Lawrence v. Philpot, 1366, 1478,. 1569. Lawrence v. Smith, 981. Lawrence r. Traner, 445, 1634. Lawrence Mfg. Co. v. Tennessee Mfg. Co., 1034. Lawson v. Menasha W. W. Co.,, 840. Lawson ;;. Schnellen. 1306. Lawton r. Green, 1606, 1620. I^yton r. Mayor, 1247. 1260, 1266. Lazzell v. Garlow, 669. TABLE OF CASES CITED. Ixxvii THE REFERENCES Lea & Perrins v. Deakin, 1023, 1024, 1607. Learned v. Hunt, 705, 802. Leather Cloth Co. v. American Leather Cloth Co., 1032, 1054, 1074, 1076, 1077, 1079, 1080. Leather Cloth Co. v. Lorsont, 1158, 1172. Leavitt v. Windsor L. & I. Co., 1346. LeClercq i: Trustees, 731. Lecourt v. Gaster, 86. Lee V. Alston, 644, Lee V. Clark, 1513. Lee V. Haley, 1069, 1088. Lee V. Packard, 431. Lee V. Town of Mellette, 510. Lee V. Vaughan, 369. Leech v. Schweder, 817, 821. Leeds v. Cheetham, 92, 396. Leggett V. Avery, 892. Leggett V. Dubois, 1489. Leggett V. Morris, 214. LeGuen v. Gouverneur, 212. Lehigh V. C. Co. v. Hamblen, 1059. Lehman r. Logan, 653. Lehman v. Roberts, 352. Leighton v. Leighton, 389. Leighton r. Young, 392. Leininger's Appeal, 696. Leitch V. Wentworth, 473, 474. Leitham v. Cusick, 50, 1553. Lemback v. Nye, 672. Lemont v. Singer & S. T. Co., 518. Lempiere r. Lange, 398. Leunon, Ex parte, 1454. Lennon, In re, 1423, 1454. Leo v. Union Pacific R. Co., 1207, 1547. Leonard v. Central Insurance Co., 1631, 1635. Leonard r. Collier, 227. Leonard r. Ozark Land Co., 1647. Leonard r. Yohnk, 286. Leopold r. Judson, 396. ARE TO THE PAGES. Leroy v. Dickerson, 1567. Le Roy v. New York, 454. Le Roy v. Wright, 665. Leslie (-. Brown, 1607. Leslie v. Lorillard, 1211. Leslie v. St. Louis, 355, 498. Lessig V. Langton, 1547. Lester Real Estate Co. v. City of St. Louis, 37. Ijever v. Goodwin, 1048. Levi V. Schoenthal, 16. Levy V. City of Snreveport, 1253, 1255. Levy V. New Orleans W. Co., 1200. Levy V. Steinbach, 236, 237. Levystein v. O'Brien, 219. Lewis V. Armstrong, 164. Lewis V. Chapman, 982, 983. Lewis V. Christian, 393, 394. Lewis V. City of Elizabeth, 525. Lewis V. Daniels, 141, 346, 1488. Lewis v. Denver C. W. W. Co., 125L Lewis V. Dinkgrave, 144. Lewis V. Eshleman, 546. Lewis V. FuUarton, 964, 977, 978. Lewis V. Gollner, 1138, 1144. Lewis V. Langdon, 1356. Lewis V. Levy, 142. Lewis V. Lumber Co., 687. Lewis r. Smith, 26, 1520. Lewis V. Spencer, 484. Lewis V. Stein, 763. Lewis V. Town of North Kings- town, 39, 672. Lewis r. Winston, 1384, 1543. Lewiston F. M. Co. v. Franklin Co., 1545. Lewiston W. & P. Co. v. Asotin County, 485. Lewton v. Hower, 402, 1551. Lexington & 0. R. Co. v. Apple- gate. 792, 1606. Lexington & 0. R. Co. v. Ormsby, Ixxviii TABLE OF CASES CITED, THE REFERENCES Licensed Victuallers N. Co. v. Bingham, 1018, 1052. Lick V. Ray, 350. Liddle r. Cory, 893. Liebstein r. Mayor, 525. Life Association v. Boogher, 970. Life Association r. McBlain, 102. Ligare v. Semple, 1160. Liggett & Myers Tobacco Co. v. Reid T, Co., 1032. Lightfoot r. Planters Banking Co., 82. Lillie V. Lillie, 1621, 1626. Linden c. Case, 1236. Linden Land Co. v. M. E. R. & L. Co., 719. Lindsay v. Hatch, 1429, 1430. Lindsay v. Jackson, 237, 1112. Lindsay v. Matthews, 410. Lindsley v. James, 228, 1102. Lines v. Spear, 1518. Lingwood v. Stowmarket Co., 771, 776. Lininger v. Glenn, 135. Linn County v. Hewitt, 1650. Linoleum Co. /". Nairn, 1045. Linton v. Denham, 1502, 1504. Linwood Park Co. r. Van Dusen, 1123, 1126. List c. City of Wheeling, 1299. Lister v. Eastwood, 900. Listman Mill Co. v. Listman M. Co., 1043. Little v. Callus, 27. Little V. Gould, 956. Little r. Hall, 953. Little r. Kingswood Collieries Co., 90. Little V. Marsh, 1509. Little r. Price, 98, 134, 150. Littlejohn v. Attrill, 666. Littler r. Jayne, 1263. Lilfler ;;. Thompson, 646. Littleton v. Fritz, 726. Liverpool Association v. Smith, 969 ARE TO THE PAGES. Livingston v. Bank of New York, 1192. Livingston v. Exum, 1614, 1630. Livingston v. Gibbons, 56, 1489. Livingston v. Hollenbeck, 444, 459, 1324. Livingston v. Livingston, 401, 1334,, 1479. Livingston v. Ogden, 855, 863. Livingston y. Van Ingen, 855. Livingstone i\ Kane, 271. Lloyd v. Gurdon, 1111. Lloyd V. Heath, 1568. Lloyd V. Loaring, 428. Lloyd V. London, C. & D. R. Co.». 1118, 1136. Lockart v. Stuckler, 145. Lockhart v. City of Troy, 540, 1513, 157L Lockridge v. Lyon, 156. Lockwood r. Faber, 901. Lockwood V. Lunsford, 693. Lockwood V. St. Louis, 482. Lockwood V. Wickes, 925, 1497,. 1650, 1665, 1669. Lockwood Co. v. Laurence, 764. Loder v. Arnold, 1455. Loeb V. McMahon, 402. Logan V. Driscoll, 696. Logan V. Lucas, 253. Logan V. Patrick, 256. Logsden r. Willis, 1609. London v. City of Wilmington, 468. London, Chatham & Dover Rail- way Arrangement Act, In re, 41, 1210. London & N. W. R. Co. v. Lanca- shire & Y. R. Co., 594. London Society v, London Co., 1021. London & Yorkshire Bank r. Pritt, 1177. Long r. Kasebeer, 683, 1540. Long r. Merrill, 875. Long /•. Ragan, 677, 678. TABLE or CASES CITED. Ixxix THE REFERENCES Long V. Smith, 177. Long Branch Commissioners v. West End R. Co., 13, 580. Longley v. City of Hudson, 514. Longman v. Winchester, 958. Longshore Printing Co. v. Howell, 1417, 1420. Longwood V. R. Co. v. Baker, 623, 1466. Lonsdale Co. v. City of Woonsock- et, 12, 662, 719. Loog V. Bean, 969. Lord V. De Witt, 740. Lord Auckland v. Westminster Lo- cal Board of Works, 1247, 1248. Lord Bernard's Case, 653. Lord Byron v. Johnston, 974. Lord Courtown v. Ward, 655. Lord Cowley i'. Byas, 37. Lord Manners v. Johnson, 1136, 1137, 1142. Lord Montague v. Dudman, 86, 262. Lord Norbury i\ Alleyne, 655. Lord Orrery r. Newton, 638. Lord's Executors v. Carbon I. M. Co., 696, 698. Los Angeles University v. Swarth, 1137, 1668. Losey v. Neidig, 169. Lothrop i: Southworth, 1577, 1621. Loudon V. Warfield, 652. Louisiana National Bank v. City of New Orleans, 1319. Louisville Coffin Co. v. Warren, 751. Louisville, N. A. & C, R. Co. v. Beck, 619. Louisville, N. A, & C. Ry. Co. v. Ohio V. L & C. Co., 79. Louisville & N. R. Co. v. Bitter- man, 600. Louisville & N. R, Co. v. City of Bessemer, 1487. ARE TO THE PAGES. Louisville & N. R. Co. v. Common- wealth, 589, 1227. Louisville & N. R. Co. v. Gaines, 505. Louisville & N. R. Co. v. M., J. & K. C. R. Co., 780, 793, 794. Louisville & N. R. Co. v. McChord, 596. Louisville Trust Co. v. Stone, 485. Love V. Allison, 1479. Love V. Baker, 113. Love y. Powell, 1483. Lovell V. Chilton, 376, 1523. Loven v. The People, 1425, 1427. Low V. Hart, 1048. Low V. Holmes, 22. Low V. Innes, 1119. Low V. Routledge, 937. Low t). Ward, 974. Lowe V. Baker, 113, 114. Lowe v. Board of Commissioners, 1504, 1505. Lowe V. Holbrook, 743. Lowe V. Lucey, 626. Lowe 'V. Prospect H. C. Assn., 757. Lowery v. City of Pekin, 845. Lowndes v. Settle, 13, 664, 682. Lowndes v. Buncombe, 978. Lownsdale v. Gray's H. B. Co., 702, 726. Lowry v. McGee, 54. Lowry v. Sloan, 206, 1215. Lowry v. Williams, 403. Loyless v. Howell, 1653. Lucas V. Chapeze, 368. Lucas r. McBlair, 855, 862. Lucas V. Spencer, 169. Lucas V. Williams, 1372. Luco v. Brown, 223. Ludington r. Handley, 138. Ludington v. Tiffany, 183, 1476. Ludlow & C. C. Co. V. City of Lud- low, 104, 1253, 1255. Lufkin Rule Co. v. Fringeli, 1158- iXXX TABLE OF CASES CITED. THE EEFERENCES Lumleyt'. Wagner, 1096, 1116, 1149, 1150. Lumsden v. Milwaukee, 1235, 1291. Lurting v. Conn, 626. Lutes V. Briggs, 1235, 1237, 1241. Lutheran Evangelical Church v. Gristgan, 306. Lux V. Haggin, 16, 829, 842. Lyle V. Jacques, 449. Lyle V. Lesia, 571. Lyles V. Hatton, 157. Lynch v. Eastern, La F. & M. R. Co., 1300, 1308. Lynch v. Kennedy, 1113. Lynch v. Union Institution, 37. Lyon V. Lyon, 1389. Lyon V. McLaughlin, 760. Lyons v. Green, 1482. Lyons v. Wilkins, 1413. Lyon's Appeal, 1386. Lyrely v. Wheeler, 1486. Lyster v. Stickney, 1108. Lyth Creek W. Co. v. Perdad, 841. Lytle V. Black, 499. Lytton V. Steward, 775. M M. R. F. S. & Gulf R. Co. v. Wheaton, 490. Mabel M. Co. v. Pearson C. & I. Co., 1478. Macaulay v. White S. M. Co., 1458, 1467. MacDonald v. Rehrer, 1259. Mace V. Commissioners, 457. Macgregor v. Cunningham, 1518. Macher v. Foundling Hospital, 1124, 1130. Mack V. DeBardeleben C. & L Co., 1218. Mack V. Petter, 939, 9*45. Mackey v. Scottish Society, 824. Mackinnon Pen Co. v. Fountain Ink Co.. 1158, 1175. ARE TO THE PAGES. Macklin v. Richardson, 992, 999, 1007. Macklot V. Davenport, 444, 459. Maclary v. Reznor, 1507. MacLaury v. Hart, 1642. Macleod v. Jones, 407. Macon C. S. R. Co. v. Mayor, 558. Maddox v. White, 393, 398, 399, 656. Madisonville Traction Co. 'V. St. Bernard M. Co., 127. Maenhaut v. New Orleans, 1241. Magee v. Overshiner, 574. Magennis v. Parkhurst, 1429. Magnay v. Mines Royal Co., 11. Magnet M. Co. v. Page & P. S. M. Co., 1486, 1499. Maguire v. Grattan, 817, 819. Mahan v. Accommodation Bank, 183. Mahan v. Tydings, 1579. Maher v. Gorman, 1372. Mahncke v. City of Tacoma, 1653. Mahon v. Stanhope, 649. Main v. Bromley, 280. Mair r. Himalaya Tea Co., 1098. Mair v. Thellusson, 1559. Makemson v. Kauffman, 1288. Malain v. Judge of Third Judicial District, 1660. Mallett V. Weybossett Bank, 1514, 1515, 1516. Malley v. Altman, 97. Mallinckrodt Chemical Works v. Nemnisch, 1162, 1167. Mallory, In re, 273, 274, 280. Maloney v. King, 7, 1641. Maloon v. White, 665. Maloy V. Madget. 1279. Maloy r. Sloan, 325. Maltby v. Bobo, 892. Mammoth Vein Co.'s Appeal, 13, 702. Manchester 7'. Dey, 1513, 1571. Manchester Cotton Mills r. Town of Manchester, 332, 341, 1290. TABLE OF CASES CITED. Ixxxi THE REFERENCES Manchester R. Co. v. Worksop Board of Health, 679. Manderson v. Commercial Bank, ' 1204, 1205. Mandeville v. Harman, 1163. M'Andrew v. Bassett, 1019. Manhattan M. & F. Co. r. Van Keuren, 1556. Manhattan Manufacturing Co. v. New Jersey Stock Yard Co., 1133. Manhattan Medicine Co. v. Wood, 1079. Manistique L. Co. v. Lovejoy, 1541, 1542. Manko v. Borough of Chambers- burgh, 341. Manley v. Raleigh, 522. Manlove v. Vick, 1593. Manly Building Co. f. Newton, 1263. Mann v. Flower, 70. Mann v. Stephens, 811, 1092, 1136, 1138, 1460. Manners v. Blair, 955. Manning v. Elliott, 412. Manning v. Hunt, 176. Manning v. Poling, 1659. Manson v. S. B. R. Co., 725. Manufacturers G. & O. Co. r. Ind. N. G. & 0. Co., 733. Manufacturers Outlet Co. v. Long- ley, 38. Manufacturing Co. v. Trainer, 1034, 1071. Many v. Sier, 901. Marble v. Bonhotel, 1640. Marble v. McKenney, 1279. Marble Co. v. Ripley, 1095, 1346. March V. Edgerton, 193. March v. Romare, 1663. Marden v. Campbell P. P. & M. Co., 1665. Marine Insurance Co. v. Hodgson, 134, 153, 169, 170. Marion v. Johnson, 675, 676. Mark v. Hyatt, 1593. ARE TO THE PAGES. Mark v. Superior Court, 1648. Marker v. Marker, 648, 649, 650. Markham v. Needham, 196, 197. Markham v. Stowe, 840. Markham v. Todd, 376, 377. Markle v. Board of Commission- ers, 1272. Marks, In re, 288. Marks v. Morris, 1101. Marks v. Stephens, 179. Marks v. Weinstock, 1549. Marks v. Willis, 157. Marlatt v. Perrine, 1476. Marlin Fire Arms Co. v. Shields, 970. Marquett^e, H. & O. R. Co. v. Mar- quette, 498, 504, 505. Marriner v. Smith, 241, 345, Marsan v. Page, 749. Marsh v. Morton, 1622, Marsh v. Prosser, 202. Marsh v. Supervisors of Clark Co., 450, 472, 481. Marshall v. Beverley, 153. Marshall v. Colman, 1347. Marshall v. Commissioners, 1505. Marshall v. Cooper, 234. Marshall v. Gill, 1245. Marshall v. Holmes, 139, 192, 257. Marshall v. Illinois State Reform- atory, 1326. Marshall v. Lockett, 343. Marshall v. Pinkham, 1084, Marshall r. Ross, 1080. Marshall v. Silliman, 535, 537, 1299. Marshall v. Watson, 1354. Marter, In re, 281. Martin, Ex parte, 767. Martin v. Barnett, 445. Martin v. Blattner, 726. Martin v. Broadus, 21. Martin v. Headon, 817, 821. Martin v. Hewitt, 354. Martin v. Ingham, 1341. Martin v. Jewell, 249. Ixxxii TABLE OF CASES CITED. THE REFERENCES Martin r. Jones, 356. Martin v. Lacy, 1341. Martin v. Lindsay's Adm'rs, 1101. Martin v. Marks, 781. Martin v. Martin, 1404. Martin v. Michael, 152, 1401. Martin i\ Murphy, 1163, 1177. Mai'tin c. Nutkin, 745. Martin v. Orr, 100. Martin v. Price, 817. Martin v. Wade's Ex'rs, 1618. Martin v. Wright, 950. Martinetti v. Maguire, 981, 1002, 1003, 1006. Martyn v. Knowllys, 640. Martyr r. Lawrence, 4, 679. Marvel v. Ortlip, 1500. Marx Clothing Co. i\ Watson, 1415. Maryland v. Jarrett, 1328. Maryland v. Northern C. R. Co.. 433, 657, 658, 1487. Maryland Savings Institution r. Schroeder, 1212. Maryland Steel Co. v. Marney, 139. Mason v. Chambers, 252. Mason v. City of Shawneetovi'n, 1638. Mason v. Harpers Ferry B. Co., 874. Mason v. Hill, 760. Mason v. Kirkpatrick, 1644. Mason v. Mason, 1131. Mason v. Richards, 266. Mason v. Rollins, 1336. Mason City S. & M. Co. r. Mason, 552, 1292. Masonic Temple Association r. Harris, 789. Massachusetts B. L. Assn. v. Loh- miller, 148, 180, 224. Massam v. Thorley's Cattle Food Co., 1036. Massie v. Mann, 1483. Massie r. Watts, 117. Massing v. Ames, 514. Master v. Hansard, 1131. ARE TO THE PAGES. Masters v. McHoUand, 555. Masterson c. Ashcom, 135, 223. Mast, Foos & Co. v. Stover Mfg. Co., 899, 1668. Matheson c. Hanna, 1462. Matheson v. Thompson, 427. Mathews v. Cody, 1555. Mathews v. Douglass, 73. Mathieson r. Harrod, 937. Matseil V. Flanagan, 940, 1052. Matson v. Field, 137. Matteson i\ Wilbur, 831, 832, 833. Matthews v. Hudson, 653. Matthews v. Skinker, 418. Matthewson v. Stockdale, 942. Matthis 0. Town of Cameron, 205, 206, 1313, 1315. Mattingly v. Sutton, 1380. Matzell V. Flanagan, 1090. Maunsell v. Hort, 1127. Maunsell v. Midland R. Co., 1221, 1223. Mawman v. Tegg, 986, 1015. Maxwell v. Hogg, 1053. Maxwell v. Maxwell, 326. Maxwell v. Mitchell, 1121. Maxwell r. Somerton, 985. May v. Huntington, 1387. Mayall c. Higbey, 1183. Mayer v. Nelson, 176. Mayer v. Raymond, 445. Mayer v. Wood, 1397. Mayer's Appeal, 323. Mayes v. Woodall, 153. Mayo D. Bryte, 179. Mayo v. Judah, 328. Mayor v. Africa, 1668. Mayor v. Baldwin, 482, 483, 520, 521. Mayor v. Baltimore County W. & E. Co., 1297. Mayor v. Bolt, 731, 756, 1531. Mayor r. Camak, 1308. Mayor u. Cardiff Water-works Co., 13. TABLE OF CASES CITED. ixxxiii THE REFERENCES Mayor v. Curtiss, 702, 708. Mayor v. Eldridge, 1245, 1285. Mayor v. Finney, 1540. Mayor v. First National Banli of Macon, 488. Mayor o. Flournoy, 528. Mayor v. Franl^lin, 319. Mayor v. Gardner, 1292. Mayor v. Georgia R. & B. Co., 795. Mayor v. Gill, 1251, 1313. Mayor v. Grand Lodge, 511, 526. Mayor v. Groshon, 670, 1199. Mayor i'. Harris, 562. Mayor v. Hedger, 680. Mayor v. Houk, 737. Mayor v. Huff, 1645. Mayor v. Hughes, 1260, 1266. Mayor v. Johnson, 534. Mayor v. Keyser, 1268, 1269. Mayor v. Magnon, 22. Mayor v. Meserole, 240, 459, 517, 1324. Mayor v. Mitchell, 38, 806. Mayor v. New York & L. I. F. Co., 1425, 1427, 1438, 1468. Mayor v. Patterson, 87, 1253. Mayor v. Pemberton, 584. Mayor i\ Porter, 511, 520, 526. Mayor v. Putnam, 1237, 1243. Mayor v. Radecke. 1258. Mayor v. Smyth, 709, 712. Mayor v. Starin, 874. Mayor v. Thorne, 712, 1258. Mayor v. Warren M. Co., 763, 764. Mayor r. Weatherby, 1245. Mayor of Atlanta v. The Central R. Co., 1294. Mayor of Savannah v. Dehoney, 528. Maysville & Mt. S. T. R. Co. i: Rat- liff, 705, 707. Maythorne r. Palmer, 1103. McAllen r. Rhodes, 1326, 1330. McAllister ;-. Clark, 1591. McArthur r. Kelley, 25, 1322. ARE TO THE FACES. McBee v. Sampson, 43. McBride v. Chicago, 516. McBride i\ Little, 1400. McBride v. Newlin, 1324. McCafferty r. McCabe, 1296. McCaffrey's Appeal, 748. McCalley v. Otey, 407. McCallum v. Germantown, 765. McCann v. Day, 851. McCann v. Otoe Co., 135. McCann v. Taylor, 245, 330. McCartney v. Garnhart, 1075. McCaslin v. The State, 631. McCauley v. Kellogg, 1341. McCauley v. McKeig, 696. McCaull V. Braham, 1120, 1150. McClellan v. Crook, 252. McClellan v. Marshall, 157. McClellan v. Taylor, 672. McClelland v. Miller, 554. McClung V. Livesay, 441, 546. McClurg's Appeal, 1157, 1160. McColgan v. B. B. R. Co., 146. McComb V. Ernest, 888. McConkey v. Smith, 463. McConnaughy v. Pennoyer, 18, 350, 351. McConnell v. Arkansas B. & M. Co., 1322. McConnell v. Ayres, 150. McConnell v. Rathbun, 845. McCook V. Bernd Brothers, 169. McCook V. Pond, 1373. McCord V. Iker, 702, 703. McCorkle v. Brem, 20, 1371, 1505, McCormick v. Hartley, 425. McCormick v. Horan, 760. McCormick v. Nixon, 688. McCormick v. Riddle, 50. McCoun r. Delany, 1599. McCowan v. Whitesides, 783. McCoy V. Chillicothe, 442. McCoy V. McCoy, 1486. McCredie r. Senior, 1351. McCreery v. Brown. 1502, 1503. Ixxxiv TABLE OF CASES CITED. THE REFERENCES McCreery v. Sutherland, 142, 346. McCrimmin r. Cooper, 252. McCulla r. Beadleston, 408, 409, 418. McCulloch V. HoUingsworth, 241, 344, 345. McCullough V. Hicks. 253, 254. McCurdy v. Baughman, 267. McCurdy v. Martin, 201. McCurry r. Gibson, 1157, 1159, 1160, 1177, 1181. McCutchen r. Blanton, 705, 709. McDaniel v. Callan, 399, 1122. McDaniel v. Traylor, 257 McDonald v. Brady, 4. McDonald v. Davis, 1644. McDonald r. Mackenzie, 261. McDonald v. Murphee, 442. McDonald v. Newark, 737. McDonald v. Payne, 568. McDonnell v. Grand Canal Co., 1208, 1221, 1223. McDonnell v. Midland G. W. R. Co., 1225. McDonogh r. Calloway, 2, 3. McDowell V. Kurtz, 898. McDowell V. Massachusetts & S. C. Co., 537, 538, 1303. McDunn v. City of Des Moines, 373. McEacharn v. Colton, 1128. McEldowney v. Lowther, 1474. McElroy v. Kansas City, 559. McFadden v. Owens, 14. McFarland v. Dilly. 142, 347. McFarland r. Lindekugel, 39. McFarland r. Orange & N. H. C. R. Co., 730, 793. McFarland r. Rogers, 151. McFarlane r. Griffith, 109, 388. McGean r. M. El. R. Co., 564. McGee v. Smith, 21, 335. McGee's Appeal, 570, 720, 1287, 1316. McGinnis /•. Friedman, 11, 29. McGinnis r. Watson, 292, 309. McGlee v. Ellis, 95. ARE TO THE PAGES. McGoldrick v. Slevin, 1397, 1399, 1400. McGowan Co. v. McGowan, 1357. McGregor v. Silver King Mining Co., 20, 50, 661, 671. McGuire v. Caskey, 1137. McGuire v. Eames, 886. McHenry v. Jewett, 50, 1642. McHugh V. Boston, H. & E. R. Co., 585. Mclndoe v. Hazeltine, 217. Mclnnis v. Pace, 1650. Mclntire v. Lucker, 552. Mclntire v. Mancius, 72. Mclntyre v. Town of White Creek, 459, 464. McJilton V. Love, 257. McJunkin v. Dupree, 322. McKay f. Chapin, 1575. McKee v. Griffin, 1353. McKee v. Town of Pendleton, 531. McKenzie v. Cowing, 1399. McKesson v. Hennessee, 1610. McKibbin v. Bristol, 392. McKibbin v. Brown, 1104, 1485. McKillopp I'. Taylor, 744, 1429. McKim V. Fulton. 1489. McKim V. Voorhies, 253. McKinley v. Chosen Freeholders, 1245. McKinnon v. Palmer, 71. McKinzie v. Mathews, 1552, 1625. McKnight v. Chauncey, 1114. McKoin V. Cooley, 228, 1102. McKoy V. Chiles, 374, 375, 380, 1627. McLachlan v. Town of Gray, 570. McLaughlin v. Kelly, 682, 697. McLaughlin v. Sandusky, 37. McLean v. Fleming, 1067, 1073, 1075, 1076. McLellan v. Mayor, 1249. McLeod r. Duncan, 1464, 1496. McLure r. Ala. M. Ry. Co., 385. McMahon r. O'Donnell, 1481. TABLE OF CASES CITED. Ixxxv THE REFERENCES McMahon v. Welsh, 544. McManus v. Cook, 1557. McMaugh V. Burke, 677. McMichael v. Eckman, 1657. McMillan v. Ferrell, 691. McMillen v. Butler, 1273. McMillen v. Smith, 23. McMorran v. Fitzgerald, 744. McMurtry v. Edgerly, 287. McNamara v. Irwin, 1486. McNeil r. Garratt, 24, 1430, 1432, 1433. McNeill v. Edie, 223. McNeill V. Williams, 980. McPike V. Pen, 493, 498, 503, 537, 1299, 1301. McPike V. Pew, 441. McPike V. West, 572. McQuigg V. Collins, 781. McRae v. Atlantic & N. C. R. Co., 11. McRae v. Brown, 1629, 1636. McReynolds v. Harshaw, 166, 1520. McRoberts v. Washburne, 855, 874. McSwiney v. Haynes, 833. McVey v. Brendel, 1062, 1063, 1082. McVickar v. Wolcott. 1641, 1654. McWethy v. A. E. L. & P. Co., 566, 575. McWilliams v. Morgan, 1611. Meacham Arms Co. r. Swarts, 1401. Mead v. Anderson, 1644. Mead v. Merritt, 117. Mead v. Norris, 1427. 1429, 1455. Mead v. West Publishing Co., 963, 979. Meade r. Grigsby's Adm'rs, 1381. Meadowcroft v. Kochersperger,524, 526. Meadow Valley M. Co. v. Dodds, 628. Mears v. Howarth, 482. Meaux v. Pittman, 1636. Mechanics Bank v. City of Kansas, 504. ARE TO THE PAGES. Mechanics Bank i\ Debolt, 466, 860. Mechanics Foundry v. Ryall, 26, 667, 683. Mechling v. Kittauning Bridge Co., 725, 1532. Medford v. Levy, 738. Medical & Surgical Institute v. City of Hot Springs, 29, 86. Medley v. Pannill's Adm'r, 1521. Meek v. Bunker, 227. Meeker v. Gilbert, 667. Meem v. Rucker, 207, 211. Meigs V. Lister, 736, 739. Meigs' Appeal, 332. Meinert v. Harder, 148, 268. Meinhard v. Youngblood, 1541. Meixell v. Kirkpatrick, 151. Meloy V. Dougherty, 242, 264, 35L Melton V. Lewis, 169, 172. Memphis & C. R. R. Co. v. Woods, 1218. Menard v. Hood, 38, 1309. Meneely v. Meneely. 1036. Menendez r. Holt, 16, 1078, 1088. Meng V. Coffee, 1655. Menifee v. Myers, 169. Menifee's Administrators v. Bali, 135. Menken r. Frank, 1578, 1623. Mercantile National Bank v. Hub- bard, 464, 465. Mercantile National Bank v. May- or, 476, 477. Merced M. Co. v. Fremont, 693. Mercer v. Byrd, 322. Merchants Banking Company v. Merchants Joint Stock Bank, 1070. Meredith v. Benning, 169, 175. Meredith ;;. Sayre, 1251, 1286. Merriam v. Board of Supervisors, 1236. Merrill v. Gorham, 459. Merrill v. Humphrey, 467, 476, 477. Ixxxvi TABLE OF CASES CITED. THE REFERENCES Merrill r. Lake, 56. Merriman v. Norman, 362. Meniman v. Polk, 349, 356. Merrit, Ex parte, 73. Merritt r. Farris, 444. Merritt v. Hunt, 377. Merryfield i: Jones, 1606. Merryweather v. Moore, 27. Mershon v. Bank of the Common- wealth, 172. Merwin v. Smith, 1477, 1506, 1562, 1569. Merz Capsule Co. v. W. S. Capsule Co., 1221, 1224. Mesker r. Koch, 468. Messmore r. Stephens, 324. Metcalf, In re, 273, 275. Metcalf v. Gilmore, 258. Methodist Churches v. Barker, 1590. Metler's Adm'rs v. Metier, 83. Metropolitan City R. Co. v. City of Chicago, 782, 794, 1531. Metropolitan Electric S. Co. v. Ginder, 1117, 1152. Metropolitan G. & S. Exchange r. Chicago Board of Trade, 1201. Metropolitan G, & S. Exchange v. Mutual U. T. Co., 1201. Metz V. Anderson, 444. Metzger v. Attica & A. R. Co., 1299. Metzler, In re, 273, 277. Metzler v. Wood, 979. Mewhorn v. Glass, 185. Mexborough r. Bower, 5. Mexican Ore Co. v. Mexican G. M. Co., 38. 1454. Meyer v. Devries, 970. Meyer v. Phillips, 761, 762. Meyer v. Rosenblatt, 460. Meyer v. Tully, 147. Meyrowitz Mfg. Co. r. Eccleston, 909. Mcysonbiirg r. Schlieper, 421, 1615. Miohaux's Adm'r r. Brown, 1619. ARE TO THE PAGES. Michel V. Sammis, 414. Michie v. Ellair, 391. Mickles v. Rochester City Bank. 1232. Micou V. Tallassee Bridge Co., 873. Middlesex Co. v. City of Lowell, 774. Middlestadt v. W. S. & P. Co., 763. Middleton r. Greeson, 1287. Middlings Purifier Co. r. Chris- tian, 913. Midland R. Co, v. Smith, 602. 608, 619. Midland T. & F. Co. v. Wilson, 874. Mikesell r. Durkee, 614. Milan Steam Mills r. Hickey, 662, 683. Miles r. Davis, 147. Miles r. Edwards, 1630. Miles V. Ray, 1277. Miles V. Sheep Rock M. & M. Co., 7. Miles V. Thomas, 1346. Milhau V. Sharp, 590, 1235, 1236, 1314. Millar v. Taylor, 934, 954, 971, 991. Miller, Ex parte, 1439, 1444. Miller v. Androscoggin Pulp Co., 888. Miller v. Argyle's Ex'r, 362, 370. Miller v. Burket, 662. Miller v. Clements, 184. Miller v. English, 310. Miller v. Estill, 149. Miller r. Ford, 93, 1100. * Miller v. Gable, 292, 309. Miller v. Gaskins, 154, 1377. Miller r. Gittings, 117, 118, 120. Miller v. Gorman, 451. Miller v. Grandy, 491, 548. Miller v. Little, 405. Miller r. Loeb, 90. Miller r. Longacre, 181. Miller v. Lynch, 664. Miller v. Mayor, 798. TABLE OF CASES CITED. Ixxxvii THE REFERENCES Miller i\ Mayor of Mobile, 1289. Miller o. Mayor of Morristown, 715. Miller v. McDougall, 1507, 1508. Miller v. McElroy, 980. Miller v. O'Bryan, 1640. Miller v. Parker, 247, 416, 1575. Miller v. Traphagen, 1563. Miller ;;. Truehart, 803. Miller v. Washburn, 1476 Miller v. Wills, 26, 672. Millhiser v. Willard, 736. Milligan v. Mitchell, 306. Milligan v. Nelson, 1634. Millington r. Fox, 1033, 1071, 1085. Mills V. Charleton, 467, 469, 491, 527. Mills V. Cobby, 1445, 1461. Mills V. Dunham, 1158, 1161, 1176. Mills V. Gleason, 457. Mills V. Johnson, 457, 467, 469. Mills V. New Orleans Seed Co., 18, 683. Mills V. Northern R. Co., 1397, 1399. Mills V. Parlin, 616. Mills V. Provident L. & T. Co., 256. Mills V. Scott, 222, 225. Milne r. Van Buskirk, 23. Milwaukee v. Milwaukee & B. R. Co., 791. Milwaukee E. R. & L. Co. r. Bradey, 88, 1502, 1503. Milwaukee Iron Co. r. Town of Hubbard, 498, 503, 550. Miner v. Nichols, 801. Mining Co. of Ireland r. Delany, 1430. Minneapolis Brewing Co. r. Mc- Gillivray, 1344. Minneapolis, etc. Ry. Co. v. Dickey County, 441, 482. Minneapolis & S. L. R. Co. r. C, M. & St. P. R. R. Co.. 8, 581. Minnesota r. Northern Securities Co., 1186, 1537. ARE TO THE PAGES. Minnesota L. O. Co. v. Maginnis, 425. Minnesota L. 0. Co. v. Palmer, 499. Minnig's Appeal, 667, 668. Minturn v. Seymour, 1475. Minturn v. Smith, 500. Mirkil v. Morgan, 702. Misner v. Bullard, 1630. Mississippi v. Johnson, 1337. Missouri, K. & E. R. Co. v. Hoer- eth, 223. Missouri, K. & T. R. Co. v. Scott, 127. Missouri, K. & T. Ry. Co. v. Smith, 1638. Missouri, K. & T. Ry. Co. v. Texas & St. L. R. Co., 586. Missouri River, F. S. & G. R. Co. V. Morris, 504, 506. Mitchell V. Board of Commission- ers, 517, 518. Mitchell V. Boyer, 138. Mitchell V. Bunch, 117. Mitchell V. Dors, 661, 682, 694, 697. Mitchel! v. Hawley, 1632, 1638. Mitchell r. McClure, 283. Mitchell V. Milwaukee, 498. Mitchell i\ Mitchell, 1512, 1564. Mitchell V. Reynolds, 1175. Mitchell V. Sherman, 378. Mitchell V. Southwestern Railroad, 1593. Mitchell V. St. John, 221. Mitchell V. Sullivan, 1596. Mitchell V. Vermont C. M. Co., 1216. Mitchell V. Wiles, 1251. Mittnight v. Smith, 1350. Mix V. Vail, 1575, 1589. Moat r. Holbein, 1425. 1470. Mobile & G. R. Co. r. A. M. R. Co., 43. 667. Mobile & Girard R. Co. v. Peebles, 498, 501, 504. 507. Ixxxviii TABLE OF CASES CITED. THE REFERENCES ARE TO THE PAGES. Mobile M. Ry. Co. v. Alabama M. Ry. Co., 616, 1478, 1486. Mobile & 0. R. Co. v. Moseley, 504, 506. Mocher v. Reed, 67. Moeckly v. Gorton, 1108. Moet V. Couston, 1067. Moffat V. Calvert County, 1543. Mogg v. Mogg, 630. Mohawk Bridge Co. v. Utica & S. R. R. Co., 706, 707, 721, 723, 797. Mohawk & H. R. Co. v. Artcher, 572, 701, 782, 783, 1322, 1334. Mohawk & H. R. Co. v. Clute, 485. Moies V. O'Neill, 1356. Molyneux v. Scott, 1404. Money v. Jordan, 106, 1447. Monroe v. Bradley, 1427, 1459. Monroe v. Harkness, 1427, 1459. Monroe v. Mclntyre, 97, 1504. Montague r. Dudman, 86, 262. Montague v. Flockton, 1152. Montague v. Horton, 1281. Montana Mining Co. v. St. L. M. & M. Co.. 1594. Montana Ore P. Co. v. B. & B. C. M. Co. 1645. Montgomery v. Gilbert, 1629. Montgomery v. McEwen, 349, 408, 409. Montgomery v. Orr, 1286. Montgomery c. Thompson, 1025, 1028. Montgomery v. Walker, 636. Montgomery v. Wassem, 524. Montgomery v. Whitworth, 261. Montgomery G.-L. Co. v. City Coun- cil of Montgomery, 859, 1257. Monticello Hydraulic Co. v. Lough- ry, 357. Monumental Savings Assn. v. Fen- tress, 119. Moody r. Payne, 1349. Mooers r. Smedley. 543, 1324. Mooney v. Cooledge, 674. Moor (•. Anglo-Italian Bank, 121.. Moor V. Veazie, 855, 862. Moore v. Ballard, 1267. Moore v. Barclay, 269, 1478. Moore v. Brooklyn City R. Co., 589,. Moore i: Chicago, B. & Q. R. Co.v 715. Moore v. City of Atlanta, 559. Moore v. Clear Lake Water Works, 837. Moore v. Cook, 376. Moore v. Cooke's Adm'rs, 1523. Moore v. Cord, 242, 352. Moore v. Dial, 172. Moore v. Ferrell, 661, 666. Moore v. Granger, 404, 1628. Moore v. Hallum, 356, 1625. Moore v. Hill, 363, 1536. Moore v. Halliday, 26, 661. Moore v. Holliday, 123. Moore v. Holt, 93. Moore v. Hylton, 1508. Moore v. Steelman, 43, 1498. Moore v. Wayman, 470, 479. Moore & H. H. Co. v. Towers Hard- ware Co., 1166, 1168. Moorman r. Hoge, 1047. Mora 'V. Avery, 144, 1590. Moran v. Woodyard, 175. More V. Massini, 683. Moredock v. Rawlings, 378. Moredock v. Williams, 375, 376,. 1523, 1565. Morehead v. De Ford, 269. Morehead v. Little Miami R. Co.,. 1322. Moreland v. Richardson, 678, 679. Morey v. Ball, 1403. Morgan, Ex parte, 1208. Morgan v. City of B-inghamton,. 706, 1285. Morgan /•. City of Danbury, 774. IMorgan r. County Commissioners,. 1248, 1279. TABLE OF CASES CITED. Ixxxix THE REFERENCES Morgan v. County Court, 1260, 1333, 1435. Morgan v. England, 228, 1102. Morgan v. Morgan's Adm'r, C8. Morgan v. Negley, 1614. Morgan v. New York & Albany R. Co., 1198. Morgan v. Perhamus, 1176. Morgan v. Rose, 307, 1536, 1642. Morgan v. Schermerhorn, 93, 1100. Morgan v. Schuyler, 1053. Morgan v. Whiteside's Curator, 239, 316. Morgan's Sons Co. v. Wendover, 1064. Morgan Envelope Co. v. Walton, 1023. 1025. Morganton L. & I. Co. v. Webb, 26, 667. Moriarity v. Gait, 3 632. Moriarty v. Ashworth, 657. Morison v. Moat, 26. Morphett v. Jones, 1547. Morrice v. Hankey, 1445. Morrill r. St. Anthony F. W. P. Co., 831. Morris v. Ashbee, 942, 943. Morris v. Barnwell, 1645. Morris v. Bean, 17. Morris v. Board of Pilot Commis- sioners, 1323. Morris v. Central, 762. Morris v. Colman, 1155, 1157, 1349. Morris r. Cummings, 510, 546. Morris v. Edwards, 133. Morris v. Hill, 1437. Morris v. Hitchcock, 19. Morris v. Hume, 173. Morris v. Kelly, 992, 997, 1016. Morris v. Lowell Mfg. Co., 882, 912. Morris v. Mayor, 1267, 1285, 1286. Morris v. Merrell, 472, 511. Morris v. Morris, 639. Morris v. Sea Girt L. I. Co., 849. ARE TO THE PAGES. Morris v. Shelbourne, 913. Morris v. Willard, 40. Morris v. Wright, 944. Morris C. & B. Co. v. Bartlett, 160. Morris C. & B. Co. v. Fagin, 710. Morris C. & B. Co. v. Mayor, 799. Morris C. & B. Co. v. The Society,. 1092. Morris Canal & Banking Co. v. Jersey City, 109, 382, 498, 504, 505. Morris Canal Co. v. Fagan, 1499. Morris & E. R. Co. v. Haskins, 1506. Morris & E. R. Co. v. Hudson Tun- nel R. Co., 602. Morris & E. R. Co. r. Prudden, 20,. 724. Morris & Essex R. Co. r. Newark P. R. Co., 725. Morrison v. Bank of Commerce,. 503. Morrison v. Bell, 92. Morrison v. Jacoby, 470. Morrison v. King, 816. Morrison v. Latimer, 677. Morrison v. Moat, 927. Morrison Bros. & Co. r. Coleman,. 1499. Morse v. Morse, 75. Morse Pen Co. v. Esterbrook, 906. Morse T. D. & M. Co. v. Morse, 1158,. 1175. Mortimer r. Cottrell, 630. Morton v. Carlin, 541. Morton v. Superior Court, 1453. "Mosby V. Haskins, 215. Moses, In re, 274. Moses V. Flewellen, 1644. Moses V. Lewis, 390. Moses r. Mayor, 86, 87. Moses V. Mayor of Mobile, 33. Moses r. Pittsburg, Ft. Wayne & C. R. Co., 1293. Moses v. Risdon, 1246. Moses V. Tompkins, 1216. xc TABLE OF CASES CITED. THE REFERENCES Moses Brothers r. Johnson, 631. Hosier c. Caldwell, 767, 840. Mosley v. Alston, 1204. Moss V. Pettingill, 1486. Mosser v. Pequest Mining Co., 1512. Motley V. Downman, 1033, 1087. Moton V. Hull, 117, 118, 119. Mott V. Ewing, 671, 837. Mott V. Pennsylvania R. Co., 507. Mott V. Underwood, 15, 656. Mott Iron Works v. Clow, 945. Motte V. Bennett, 880. Motz i: Detroit, 524. Moulton V. Knapp, 179. Moulton r. Reid, 1325, 1328. Mountain Lake P. Assn. v. Shart- zer, 382. Mountcashell v. O'Neill, 635. Mowday v. Moore, 702. Mower r. Staples, 1207. Mowrey v. Indianapolis & C. R. Co., 584, 1549. Mowry v. Grand Street & N. R. Co., 884. Mozley v. Alston, 1208, 1527. Mudge V. Salisbury, 831. Mueller v. Eau Claire County, 1238, 1261, 1262, 1313, 1314. Muhler r. Hedekin, 1245, 1326, 1329. Muir t'. Howell, 13. Muldrick r. Brown, 693. Mulkern v. Ward, 968. Mullen V. City of Tacoma, 1326. Mullen r. Jennings, 43. Muller, In re, 289. Muller V. Bayly, 247, 416. Muller V. Fern, 1626. Muller V. Henry, 1448. Mulliken r. Reeves, 468. Mulock r. Mulock. 1502. Mulry /•. Norton, 336. Mulvane v. Tullock, 1638. Mulvany v. Kennedy, 678. Mulville V. Fallon, 848. Muncey v. Joest, 12. ARE TO THE PAGE.S. Municipality No. 1 c. Municipality No. 2, 1270. Munis V. Herrera, 171. Munns i\ Isle of Wight R. Co., 608.. Munroe v. Wivenho R. Co., 1096. Munson v. Miller, 479. Munson v. Minor, 444. Munson v. Tryon, 49, 50. Munt V. Shrewsbury R. Co., 1210. Murdock v. De Vries, 266. Murdock v. Prospect P. & C. I. R. Co., 602, 606, 607, 615. Murdock v. Walker, 1410, 1413. Murdock's Case, 7, 433, 434, 657, 658. Murfreesboro R. Co. v. Board of Commissioners, 1260. Murphey, l7i re, 1472. Murphey v. Harker, 1432. Murphree v. Bishop, 216. Murphy v. De France, 190. Murphy v. East Portland, 1251. Murphy v. Harbison, 444, 456. Murphy v. Lincoln, 662, 671. Murray v. Bender, 1644. Murray v. Bogue, 938, 971, 979. Murray v. Elston, 1502. Murray v. Knapp, 666. Murray v. Overstolz, 124. Murtha v. Lovewell, 731. Muscan Hair Mfg. Co. r. American Hair Mfg. Co., 886, 907. Muscatine v. Mississippi M. R. Co., 157, 474, 508. Musch V. Burkhart, 330. Muse i\ Wafer, 135. Musgrave r. Sherwood, 1609. Musgrave v. Staylor, 1495. Musselman v. Marquis, 683. Musser v. Brink, 393. Musser v. Hershey, 778. Mutual B. L. Ins. Co. r. Supervis- ors, 441, 498. Mutual Life Ins. Co. r. Bigler, 436. TABLE OF CASES CITED. XCl THE REFERENCES Mutual Life Ins. Co. r. National Bank of Newburgh, 435. Mutual Reserve F. L. Assn. r. Phelps, 124. Mutual Union T. Co. v. City of Chi- cago, 1297. Mygatt V. Goetchins, 755. Myers v. Hawkins, 661, 688. Myers v. Kalamazoo Buggy Co., 1055, 11G9, 1356. Myers v. Steel Machine Co., 1140, 1150. My Maryland Lodge v. Adt, 1410, 1413, 1415, 1543. Myrick v. La Crosse, 447. Nansemond Timber Co. v. Roun- tree, 1582, 1596, 1601, 1620, 1626. Napa Valley Wine Co. v. Boston Block Co., 1133. Nashville Savings Bank v. Mayor, 1512. Nashville, C. & St. L. R. Co. v. Mc- Connell, 33, 53, 600. Nast y. Town of Eden, 729. Nathan, In re, 285. National Albany Exchange Bank V. Wells, 487. National Bank v. Carlton, 84. National Bank v. Kimball, 488. National Bank v. Staats, 459. National Biscuit Co. v. Swick, 1032. National Cash Register Co. v. American Cash Register Co., 899. National Cash Register Co. v. Bos- ton C. L & R. Co., 892. National Cash Register Co. v. Navy Cash Register Co., 924. National Co. v. Prudential Co., 823. National Docks R. Co. v. Central R. Co., 598, 1191. National Folding B. & P. Co. v. Robertson, 925, 1650. ARE TO THE PAGES. National H.-P. M. Co. r. Hedden, 882, 884, 912. National Park Bank v. Goddard, 17, 18. National Provincial Bank r. Mar- shall, 1x77. National Surety Co. v. State Bank, 205, 257. Naughton v. Dinkgrave, 176, 177. Naylor v. Wellington, 1566. Neaf V. Palmer, 749. Neal V. Taylor, 1588. Neale v. Cripps, 646. Nebenzahl, In re, 288. Needles v. Frost, 250. Neeland v. State, 1326. Negley v. Henderson B. Co., 451. Negro Charles r. Sheriff, 52, 1545. Neilson v. Harford, 917. Neiser v. Thomas, 1326, 1328. Nelms V. Clark, 709. Nelson v. Mulligan, 708, 739. Nelson v. Owen, 73, 364, 365. Nelson v. Pinegar, 434, 658. Nelson's Adm'r r. Armstrong, 231, 1100. Nesinger v. C. & H. T. Co., 12. Nessle v. Reese, 1121. Nethery v, Payne, 626. Neurath r. Hecht, 228. Nevil r. Clifford, 1242. Neville v. Pope, 217. Neville v. Wilkinson, 106. Nevin v. Printup, 1645. Nevins v. McKee, 135. Nevitt V. Gillespie, 626. New V. Bame, 1502, 1505. New V. Reissner, 249. New V. Wright, 1346, 1347, 1364. New Albany & S. R. Co. v. Con- nelly, 606. New Albany & S. R. Co. v. O'Daily, 581. New Central Coal Co. 7'. George's Creek Coal & Iron Co., 602, 1191. sen TABLE OF CASES CITED. THE REFERENCES New E. V. Co. r. American Insti- tute, 918. New England M. S. Co. r. Powell, 1502. New England Phonograph Co. r. Edison, 915. New H. S. M. Co. v. Fletcher, 86. New Haven Clock Co. v. Kochers- perger, 460, 479. New Iberia Rice Milling Co. v. Ro- mero, 4. New Jersey Z. Co. v. Franklin Iron Co., 69, 1546. New Jersey Z. £j I. Co. v. Trotter, 695. New London t'. Brainard, 516, 542, 1313. New National T. Co. r. Dulaney, 1630. New Orleans v. Paine, 1338, 1340. New Orleans r. United States, 721. New Orleans City R. Co. v. Cres- cent City R. Co., 587. New Orleans & N. E. R. Co. v. Mississippi, T. B. & L. R. Co., 588. New Orleans, M. & C. R. Co. V. Frederic, 604, 617. New Orleans W. Co. r. Oser, 1494. New York r. Connecticut, 72, 1527. New York v. Mapes, 701, 1292. New York B. & P. Co. r. Gutta Percha Mfg. Co., 918, 921. New York & C. G. & S. Exchange t\ Board of Trade of Chicago, 1200. New York C. & H. R. Co. v. City of Rochester, 737. New York D. D. Co. r. American L. I. & T. Co., 100, 101. New York Filter Co. r. Schwarz- walder Co., 892, 970. New York Filter Mfg. Co. v. Jack- son, 895. ARE TO THE PAGES. New York & Greenwood L. R. Co. V. Township of Montclair, 44. New York & H. R. Co. c. Forty- second Street R. Co., 868. New York & H. R. Co. r. Haw?, 140. New York & N. E. R. Co. v. City of Boston, 559. New York, N. H. & H. R. Co. v.. Scovill, 663, 673. New York & N. J. T. Co. v. East' Orange, 789. New York P. & D. Establishment V. Fitch, 683. New York Phonograph Co. v. Jones, 915. New York & Rosendale Cement Co. V. Coplay Cement Co., 1027. New York Stock Exchange r. Glea- son, 448. Newall V. Wilson, 897. Newark Aqueduct Board v. City of Passaic, 13, 775. Newark Coal Co. r. Spangler, 1169. Newark P. R. Co. r. Township of East Orange, 20. Newaygo M. Co. v. Chicago & W. M. R. Co., 671. Newbold v. Newbold, 416. Newburgh Turnpike Co. r. Miller, 857, 858. Newby v. Oregon Company, 1056. Newcomb r. Horton, 474, 1533. Newcomer v. Tucker, 1448. Newell V. Parte, 1576. Newell V. Sass, 38, 845, 846, 850. Newhall v. McCabe H. Mfg. Co., 884. Newling r. Dobell, 1171. Newman v. Alvord, 1025, 1085. Newman r. Meek, 194. Newman r. Morris, 140. Newman r. Nell is, 849. Newman r. Ring, 1464. Newman r. Taylor, 224. TABLE OF CASES CITED. XClll THE REFERENCES Newson r. Pender, 823. Newton i: Cliorlton, 1376, 1377. Newton r. Russell, 1631, 1635. Newton r. Summey, 405. Newton County Draining Company V. Nofsinger, 532, 550. Newton Manufacturing Co. v. White, 1563. Ney Mfg. Co. v. Superior Drill Co., 910. Niagara Bridge Co. v. Great West- ern R. Co., 400, 870. Nicholls r. Stretton, 1157, 1160. JSJicholls r. Wentworth, 845. Nichols V. Campbell, 1447. Nichols V. Claiborne, 145. Nichols V. Jones, 693. Nichols v. Salem, 554, 606. Nichols V. Sutton, 571. Nicholson v. Patterson, 218. Nicholson r. Rose, 1132. Nicholson r. Stephens, 222, 223. Nicklin v. Hobin, 219. Nicodemus r. Nicodemus, 667, 668. Nicols V. Pitman, 967. Niehaus v. Cooke, 1292, 1502, 1507. Nielsen i: City of Albert Lea, 1590, 1635. Niemeyer v. Little Rock Junction R. Co., 599. Niles V. Davis, 356. Nilsson V. Jefferson, 885. Nininger v. Norwood, 715. Nixon V. City of Biloxi, 1636. Noble V. Arnold, 1631, 1636. Noble f. Butler, 169. Noble V. Union River Logging Railroad Co., 1342. Noble r. Wilson, 1514. Noble Brothers v. State of Ala- bama, 592. Noesen i\ Town of Port Washing- ton, 1308. Nordenfelt v. Maxim N. G. & A. Co., 1158, 1176. ARE TO THE PAGES. Norfolk & N. B. H. Co. r. Arnold, 75, 79. Normand r. Otoe Co., 1336. Normandin v. Mackey, 410. Norris v. Hill, 830. Norris v. Pollard, 1380. Norris i\ Tripp, 1659. Norristown Turnpike Co. v. Bur- ket, 555. North V. Kershaw, 907, 910. North's Ex'r r. Perrow, 1477. North Bloomfield G. M. Co. /'. United States, 34, 767. North British & M. L Co. v. Lath- rop, 94, 98. North Canal Co. v. Ynisarwed, 800. North Carolina G. A. Co. r. North Carolina O. D. Co., 415, 1582. North Carolina R. Co. v. Commis- sioners, 466. North Carolina R. Co. v. Drew, 17. North Chicago Rolling Mill Co. r. St. Louis Ore and Steel Co., 231. North Hudson M. B. & L. Co. r. Childs, 1397. North River S. B. Co. v. Hoffman, 855, 863. North River Steamboat Co. r. Liv- ingston, 863. North St. Louis Gymnastic Society V. Hudson, 504. North Western Lumber Co. r. Che- halis County, 482. Northeastern R. Co. v. Barrett, 381, 382. Northern Pacific R. Co. v. Barnes- ville & M. R. Co., 797. Northern Pacific R. Co. r. Burling- ton & M. R. Co., 602. Northern Pacific R. Co. v. Clark, 467. Northern Pacific Ry. Co. v. Cun- ningham, 25, 672. Northern Pacific R. Co. v. Kurtz- man, 257. XCIV TABLE or CASES CITED. THE REFERENCES Northern Pacific R. Co. v. Patter- son, 459. Northern Pacific R. Co. r. St. Paul, M. & M. R. Co., 1494. Northern Pacific R. Co. v. Wells, Fargo & Co., 1640. Northern Securities Co. v. United States, 1186. Northey r. Pearce, 391. Northfield Knife Co. v. Shapleigh, 1402. North Western Lumber Co. v. Che- halis County, 482. Northwestern Distilling Co. v. Corse, 1496. Norton r. Beaver, 242, 350. Norton v. Eagle Automatic Can Co., 897, 903. Norton v. Elwert, 669, 676, 679. Norton v. Snyder, 694. Norton D. C. & S. Co. v. Hall, 901. Norwalk H. & L. Co. v. Vernam. 676, 679. Norway r. Rowe, 637. Norwegian Plow Co. i\ Bollman, 193. Norwich Gas Light Co. v. Norwich City Gas L. Co., 864. Norwood V. Baker, 472, 527, 531. Novello r. James, 1608. Novello V. Sudlow, 973. Noyes v. Vickers, 1484. Nunda v. Chrystal Lake, 545. Nunn I'. Matlock, 195. Nusbaum r. Stein, 1545. Nutbrown r. Thornton, 669. Nye r. Town of Washburn, 441. Oakdale Mfg. Co. r. Garst, 1158, 1163. Oakley r. I'ound. 1389. Oakley r. The Mayor, 1253. Oakley r. Trustees, 349, 350, 1322. ARE TO THE PAGES. Oakley v. Young, 270. O'Beirne v. O'Beirne, 1561. Oberholser v. Greenfield, 1397, 1644. Oberkoetter v. Luebbering, 1655. O'Brien v. Baltimore B. R. Co., 562. O'Brien v. Chicago R. I. & P. R. Co., 1193. O'Brien v. Harris, 29, 32. O'Brien r. Norwich & W. R. Co., 725, 1532. O'Brien v. O'Connell, 14. O'Bryan r. Gibbons, 1353. Ocean City Assn. v. Schurch, 15, 29, 1103, 1144. Ocean City R. Co. v. Bray, 602. Ocean Grove Camp Meeting Asso- ciation r. Commissioners, 837. Ochsenbein r. Papelier, 104, 105. O'Connell v. Chicago T. T. Co., 614. O'Conner r. Starke, 1563. O'Connor v. Sheriff, 169. Odell V. Mundy, 213. Odell V. Reed, 365. Odlin r. Woodruff, 482, 667. Odorless Excavating Co. v. Lau- man, 895, Oelrichs v. Spain, 1582, 1589, 1630. Offerman & W. R. Co. r. Waycross A. R. Co., 1606. Ogden V. Gibbons, 855, 863. Ogden V. Kip, 40. Ogden City v. Armstrong, 513, 530. Ogle V. Dill, 806. Ogle r. Edge, 881, 886, 887, 922. Oglesby Coal Co. v. Pasco, 719. Ogletree r. McQuaggs, 802. O'Grady v. Governors, 1196. Old Colony Trust Co. r. City of Wichita, 1535. Old Telegraph M. Co. v. Central S. Co., 663, 665. Oldaker r. Hunt, 774. Olds r. Gary, 1635. Olin r. Bate, 1036. TABLE OF CASES CIT.ED. xev THE REFERENCES Olin r. Hungerford, 1527, 1528. Oliphant v. Commissioners ot Atchison Co., 571. Oliphint r. Mansfield, 1630. Oliver v. Decatur, 422. Oliver v. Keightley, 1313. Oliver v. Memphis & L. R. R. Co., 504, 506. Olmstead v. Koester, 16, 20, 532. Olmstead v. Loomis, 810, 841. Olmsted's Appeal, 100. Olney L. & B. Association v. Par- ker, 485. Olson V. City of Seattle, 552. Olympic Athletic Club i\ Speer, 1253. Omaha & S. W. R. Co. v. Chicago, etc., Ry. Co., 1663. O'Neal V. Hines, 1163. O'Neal V. Virginia B. Co., 444, 452, 459. O'Neil V. Behanna, 1410, 1412, 1413, 1414. O'Neill V. Browne, 199. Onondaga Co. Milk Association v. Wall, 1180. Onslow r. , 393, 655. Oolagh Coal Co. r. McCaleb, 693. Oppermann r. Waterman, 1575. Ordden r. Oakley, 1510. Oregon & Cal. R. Co. v. Jackson County 476, 477. Oregon Iron Works, In re, 281. Oregon, etc., Ry. Co. v. Standing, 458, 482. Oregon S. N. Co. v. Winsor, 1157. Oregon & Washington M. S. Bank r. Jordan, 459. O'Reilly v. Miller, 1623. Organ v. M. & L. R. Co., 619. Orient Insurance Co. v. Sloan, 251. Original Hartlepool Collieries Co. r. Gibbs, 776. Ormerod r. New York, W. S. & B. R. Co., 777. ARE TO THE PAGES. Orne v. Fridenberg, 1143, 1144. Orr 0. LittlefieM, 886, 887, 895, 896, 902, 1502, 1503. Orr V. Merrill, 914. Orr V. Orr, 346. Orr V. Peters, 430. Orr V. Pickett, 241. Orr Ewing v. Johnston, 1049. Osborn v. Charlevoix Circuit Judge, 86. Osborn v. Glasscock, 1432. Osborn v. Taylor, 15. Osborn v. United States Bank, 127, 860, 1191. Osborn r. Village of Oakland, 1275. Osborn r. Brooklyn, 792. Osborn v. Missouri Pacific R. Co., 562, 616. Osborne v. Wisconsin Central R. Co., 80. Osborne & Co. v. Missouri Pacific R. Co., 615. Osburn i\ Andre, 427. Osgood V. Allen, 938, 1020, 1021, 1087. Ostell V. Le Page, 121. Oswald V. Wolf, 703. Otis V. Sweeney, 50. Otis Steel Co. v. Local Union, 1410, 1412, 1413, 1414. Ottaquechee W. Co. r. Newton, 805. Ottawa V. Chicago & R. I. R. Co.. 516. Ottawa V. Walker, 442, 1485. Ottawa Glass Co. v. McCaleb, 459. 479, 486, 491. Outcalt V. Disborough, 340. Outlaw V. Reddick, 1377. Overall v. Ruenzi, 468, 511. Overton v. Blum, 190. Overton v. Stevens, 156. Overweight C. E. Co. r. Cahill E, Co.. 912. Ovington r. Smith, 1584. xe VI TABLE OF CASES CITED. THE REFERENCES ARE TO THE PAGES. Owen V. Brien, 1502, 1504. Owen V. Ford, 38, 630. Owen V. Phillips, 752, 753. ■Owens V. Crossett, 672. Owens V. Ranstead, 267. Owens V. Van Winkle G. & M. Co., 231. •Owens, Admr., v. Childs, 1371. Ozark Land Co. v. Leonard, 1647. Pacific Express Co. v. Seibert, 440, 466. Pacific Hotel Co. v. Lieb, 460, 461,' 486. Pacific M. T. Co. v. Chicago & A. B. Co., 1188. Pacific Mail S. Co. v. Toel, 1597. Pacific P. T. Co. V. Dalton, 476. Pacific R. Co. V. Leavenworth, 580. Packard v. Board of County Com- missioners, 1535. Packard v. Hayes, 1263. Packer v. Nevin, 1637. Packet Co. r. Sorrels, 781. Packington v. Packington, 644, 648. Paddock v. Stone, 705. Page v. Holmes B. A. T. Co., 902. Page V. St. Louis, 517. Page V. Vaughn, 1563. Page's Ex'r v. Winston's Adm'r, 160. Paige V. Banks, 953, 1015. Paine v. Chandler, 840. Palfrey v. Shuff, 235. Palin V. Gathercole, 965. Palmer v. De Witt, 990, 992, 999, 1000. Palmer v. Foley, 1600, 1608. Palmer v. Gardiner, 145, 176, 177, 1610. Palmer /•. Harris, 1079. Palmer v. Israel, 662, 673. Palmer v. Logansport & R. C. G. R. Co., 725. Palmer v. Napoleon, 467, 468. Palmer r. Rich, 500. Palmer Pneumatic Tire Co. v. New- ton Rubber Works, 885. Palo Alto B. & L Co. v. Mahar, 320. Panton v. Manley, 337. Pappenheim v. M. El. R. Co., 564. Paramore v. Persons, 342. Pargoud v. Morgan, 1616. Parham v. Justices, 554, 606. Pariente v. Bensusan, 1445. Paris Chocolate Co. r. Crystal Palace Co., 1105. Paris Medicine Co. |-. Hill Co., 1644. Parish v. Reeve, 1608. Park V. Meek, 1657. Park V. Musgrave, 417, 1630. Park V. The Modern Woodmen of America, 1219. Parker v. Bond, 1629. Parker r. Brant, 896, 897, 903. Parker v. Catholic Bishop, 570, 720. Parker v. Challis, 444. Parker v. Furlong, 26, 695. Parker v. Garrison, 393, 394. Parker v. Green, 1644. Parker v. Jones, 146. Parker v. Judges, 153. Parker v. Laney, 750. Parker v. Larsen, 716. Parker v. Morton, 193. Parker v. Nation, 1380. Parker v. Parker, 696. Parker v. Sears. 883, 889, 903, 909. Parker v. Taylor, 777. Parker v. Wakeman, 1442, 1443. Parker i\ Whyte, 1120, 1128. Parker r. Winnipiseogee L. C. & W. Co., 46, 710, 751. TABLE OF CASES CITED. XCVU THE REFERENCES Parkhurst v. Kinsman, 879, 925, 1465. Parkinson v. Laselle, 936, 937. Parkinson v. Trousdale, 166, 1499, Parks V. People's Bank, 346. Parks i: Spurgin, 234, 1477. Parlett v. Guggenheimer, 1048, 1050. Parmley v. Railroad Companies, 468, 469, 510. Parnell r. Parnell, 115. Parody v. School District, 1280. Parr v. Bell, 91. Parrill r. McKinley, 385. Parrot Silver & C. Co. v. Heinze, 1645. Parrott v. Floyd, 1653. Parrott i'. Palmer, 637, 638, 639; 640. Parsons v. Gillespie, 1020, 1021. Parsons v. Hartman, 145. Parsons v. Hughes, 658. Parsons v. Parsons, 1389. Parsons r. Pierson, 176. Parsons v. Snider, 74. Parsons r. Wilkerson, 1545. Partington v. Booth, 1425, 1428, 1445. Partridge v. Menck, 1074, 1080, 1085. Paterson & H. R. R. Co. r. Jer- sey City, 75, 76. Paterson, N. & N. Y. R. Co. r. Kamlah, 620. Patoka Township r. Hopkins, 715. Patten v. Marden, 841. Patterson r. Board of Supervisors, 1644. Patterson v. Chicago, D. & V. R. Co., 569, 616. Patterson v. Fish, 1384, 1385. Patterson r. Gordon, 11, 161. Patterson v. Hubbs, 1326. Patterson v. Miller, 11. ARE TO THE PAGES. Patterson v. Scranton & F. C. R. Co., 609. Patterson v. Wollmann, 874. Pattisson r. Gilford, 810. Patton V. Chattanooga, 1535. Patton r. Moore, 333. Patton V. Stephens, 1237, 1240. Patton r. Taylor, 362. I-aul i: Munger, 1642, 1654. Paul r. Pacific R. Co., 461, 462. Paulk r. Mayor, 87, 88. Pavy V. Greensburg Company, 524. Paxton i\ Brinton, 1468. Paxton V. Douglas, 1404. Payne v. Graham, 142. Payne v. Loudon, 237. Payne v. McCabe, 1657. Payne r. McKinley, 615. Payne v. O'Shea, 190. Payne r. Paddock, 843. Payne r. Wallace, 1627. Payton v. Mclnown, 213. Peabody r. Norfolk, 27, 1095. Peacock v. Deweese, 1095, 1096. Peak V. Hayden, 641. Pearce v. Olney, 134, 189, 190, 191, 196. Pearson v. Denham, 1385. Pearson v. Pearson, 36, 1169, 1170. 1358. Peatross v. McLaughlin, 1479, 1521. Peck V. Belknap, 1268, 1269. Peck r. Brown, 690. Peck V. Conner, 1455. Peck r. Elder, 736. Peck V. Payne, 1383. Peck V. Schenectady R. Co., 565. Peck V. School District No. 4, 483, 495, 528. Peck V. Woodbridge, 97. Peck i\ Yorks, 1563. Peck Bros. & Co. r. Peck Bros. Co., 1059. Peek V. Matthews, 1144, 1145. Peeler v. Barringer, 417. XCVlll TABLE OF CASES CITED. THE REFERENCES ARE TO THE PAGES. Peeples v. Byrd, 1336, 1338. Peet V. White, 1330. Peirs V. Peirs, 650. Pell V. Lander, 1577. Pell V. Northampton & B. J. R. Co., 608, 611. Pelton V. National Bank, 486, 487. Pelzer v. Hughes, 1644. Pelzer v. Newhall, 898. Pence v. Garrison, 772. Pendleton r. Eaton, 1627. Pendleton Co. v. Barnard, 547. Penick v. High S. Mfg. Co.. 441, 497. Penn v. Ingles, 84, 1383. Penn v. Lord Baltmore, 115. Penn Mutual Life Ins. Co. o. Heiss, 616. Pennell r. Roy, 121. Pennington v. Brinsop Hall Coal Co., 770. Pennsylvania v. Wheeling & B. B. Co., 796, 797. Pennsylvania Co. v. City of Chica- go, 564. Pennsylvania C. Co. v. Delaware & H. C. Co., 18, 19. Pennsylvania Lead Co.'s Appeal, 743. Pennsylvania R. Co. r. N. D. & N. J. J. C. R. Co., 13. Pennsylvania R. Co. r. National R. Co., 867. Pennsylvania R. Co. r. New York & L. B. R. Co., 702, 797. Pennsylvania R. Co.'s Appeal, 843. Pennsylvania S. V. R. Co. r. Read- ing Paper Mills, 782. Penny v. Holberg, 1595. Penrice v. Wallis, 602, 1657. Penrose r. Penrose, 127. Pensacola & A. R. Co. r. Jackson. 61 9. Pensacola T. Co. v. Western Union T. Co., 1201. Pentecost v. Magahee, 1653. Pentland v. Somerville, 648. Pentlarge v. Berston, 896. Pentney v. Lynn Paving Commis- sioners, 1527. Pentz V. Hawley, 1215. People V. Albany & S. R. Co., 1199. People V. Albany & V. R. Co., 1456, 1468. People V. Barrett, 1326, 1327, 1435. People V. Board of Supervisors, 1273. People V. Butler, 17, 23. People V. Canal Board, 1343, 1344. People V. Central R. R. Co., 680. People V. Circuit Judge, 96. People V. Clark, 38, 1275. People V. Coffin, 101. People V. Conklin, 1232. People v. Davidson, 723. People V. Diedrich, 1442, 1451, 1460, 1472. People V. District Court, 29, 32. People V. District Court of Lake County, 1325. People r. District Court of the Tenth Judicial District. 466. People V. Draper, 1325, 1327. People V. Dwyer, 1435. People V. Equity Gas Light Co., 724. People r. General Electric R. Co., 1532. People r. Gilmer. 246, 331. People V. Gold Run D. & M. Co., 697. People V. Horton, 730. People r. .ludge of St. Clair Cir- cuit, 23. People r. Law. 613, 615. People r. Lowber, 1245, 1246, 1250, 1318. TABLE OF CASES CITED. XCIX THE REFERENCES People V. Mayor, 1245, 1250, 1533. People 0. Mills, 1341. People 0. Miner, 1319, 1530. People V. N. Y. & S. I. F. Co., 722. People V. New York & H. R. Co., 791. People V. Randall, 1437. People V. Schoonmaker, 1642, 1654. People V. Spalding, 1427, 1460. People V. St. Louis, 710, 716, 732. People V. Sturtevant, 1425, 1427, 1453, 1470. People V. Third Avenue R. Co., 580, 868. People V. Truckee L. Co., 779. People V. Van Buren, 1401, 1402, 1425, 1464, 1467. People V. Vanderbilt, 722, 1530. People V. Wasson, 104. People's Gas Co. v. Tyner, 33, 710, 717, 741. People's Mail Steamship Co., 286. Peoples National Bank v. Marye, 467, 471, 472. People's Savings Bank v. Tripp, 444. Peoria v. Kidder, 459, 524. Peoria & R, I. R. Co. v. Schertz, 616. Perault v. Rand, 68, 69. Perceval v. Phipps, 965, 967. Perkins v. Collins, 50, 1189, 1552, 1572. Perkins v. Foye, 841. Perkins r. M. & C. T. Co., 725, 728, 783. Perkins v. Town of Port Washing- ton, 1308. Perks r. Wycombe R. Co., 606, 607. Perrine v. Marsden, 399, 654. Perrot v. Perrot, 650. Perry, In re, 1406, 1439, 1443, 1457, Perry v. Hamilton, 667. Perry v. Kearney, 147, 1619. ARE TO THE PAGES. Perry v. Kinnear, 1237, 1242. Perry v. McEwen, 312. Perry v. Michaux, 1499. Perry v. Parker, 11, 13, 663. Perry v. Shipway, 303, 304. Perry v. Thompson, 165. Perry v. Truefitt, 1032, 1035, 1061, 1080. Perry v. Tupper, 335. Persse, In re, 91. Peter v. Prettyman, 1238, 1313. Peters v. League, 215. Peters v. Lewis, 714. Peters v. Peters, 675. Peters v. Prevost, 77, 108, 389. Peterson v. City of Santa Rosa, 774. Peterson v. Humphrey, 1054. Peterson v. Matthis, 11, 1568. Pettes V. Bank of Whitehall, 169. Pettibone v. Hamilton, 719, 784. Pettibone v. La Crosse, etc., 620. Pettigrew v. Evansville, 772, 773. Pettigrew v. Foshay, 101. Pettingill v. Moss, 150, 155. Pettit V. Shepherd, 242, 349, 350. Petty V. Tooker, 296. Peto V. Brighton R. Co., 1104, 1105, Peyton v. Lamar, 1397, 1399. Pfeltz V. Pfeltz, 339, 340. Pfingst V. Senn, 705, 707. Pflugar V. Pultz, 322. Pfohl V. Samson, 1654. Phelan v. Smith, 128, 482, 505. Phelps V. City of Watertown, 1245, 1267. Phelps V. Foster, 1397, 1399, 1482, 1606. Philadelphia v. River Front R. Co., 1526. Philadelphia Ball Club v. Hallman, 1097, 1149. Philadelphia Ball Club v. Lajoie, 1097, 1149, 1151, 1154. TABLE OF CASES CITED, THE REFERENCES Philadelphia T., S. & I. Co. r. Ed- ison Electric Light Co., 895. Philadelphia. W. & B. R. Co. v. Neary, 504. Philips V. Langhorn, 1573. Phillips V. Bordman, 811. Phillips V. City of Council Bluffs, 1288. Phillips V. City of Detroit, 1434, 1447. Phillips V. City of Sioux Falls, 1492. Phillips V. Mayor, 86, 87. Phillips r. Pullen, 133, 135. Phillips V. Town of Albany, 1308. Phillips V. Walker, 229, 1407. Phipps V. Jackson, 1126. Pickens v. Dent, 284. Pickering r. Stephenson, 1221, 1222. Pickert v. Ridgefield P. R. Co., 593. Pickett r. Filer Co.. 103. Pickett V. Green, 1160. Pickle t: Holland, 1652. Picotte v. Watt, 1248. Pidding v. How, 1080. Piedmont & C. R. Co. v. Spellman, 602. Pierce v. Gibson County, 705, 747. Pierce v. Wright, 1304, 1305. Pierpont v. Fowle, 933, 977. Pierpont ;;. Town of Harrisville, 1291. Pierson v. Ryerson, 407, 410, 1507. Pierson r. Truax, 402. Piggott V. Stratton, 1131. Pike V. Bates, 1563. Pike V. Nicholas, 962. Pike M. Co. v. Cleveland S. Co., 1026. Pile, Ex parte, 23. Pile V. Pedrick, 676, 679. Pillsbury v. Humphrey, 467. Pillshury r. Pillsbury Flour Mills Co., 1073. ARE TO THE PAGES. Pillsbury v. Pillsbury - Washburn F. M. Co., 1078. Pillsbury Mils Co. v. Eagle, 1023, 1026, 1028. Pillsworth V. Hopton, 626, 627. Pineo 1-. Heffelinger, 1498. Pingle 0. Conner, 1097. Pioneer Wood Pulp Co. v. Bensley, 20. Piper V. Laughman, 1023. Piper V. Piper, 642. Piscataqua Bridge v. New Hamp- shire Bridge, 855, 870. Pitcher v. Board of Trade, 1195. Pithole P. C. Co. v. Rittenhouse, 1571. Pitt V. Rogers, 125. Pittsburg's Appeal, 1266, 1313, 1315. Pittsburg, F. W. & C. R. Co. v. Cheevers, 725, 728, 729. Pittsburg, F. W. & C. R. Co. v. Martin, 1537. Pittsburg, etc., Ry. v. Board of Public Works, 440, 456. Pittsburg, S. & W. R. Co. v. Fiske, 662. Pixley V. Huggins, 350. Place V. Sweetzer, 1349. Placke V. Union D. R. Co., 565, 728. Plant V. Woods, 1416. Planters' Bank i\ Laucheimer, 1502, 1503. Planters Company Association r. Hanes, 1326. Planters Compress Co. r. More & Co., 885. Planters & Merchants Mutual In- surance Co., Ex parte, 1660. Piatt V. Archer, 281. Piatt V. Button, 1013. Piatt V. McClure. 407. Piatt V. Threadgill, 137. Piatt r. Underwood, 64. Platto V. Deuster, 251. TABLE OF CASES CITED. CI THE REFERENCES Pleasants v. Vevay Company, 1656. Plimpton V. Spiller, 913. Ploughe V. Boyer, 714, 1556. Plowman v. Satterwhite, 413. Plumb V. Bay, 421. Poage V. Bell, 43. Poe V. Decker, 193. Poertner v. Russell, 653, 1432, 1448. Pohlman v. Dawson, 1163, 1178. Pohlman v. Evangelical Church, 672. Poillon V. Volkenning, 1590. Poincy v. Burke, 141, 346. Poindexter v. Henderson, 626. Poindexter v. Waddy, 196, 197. Poirier v. Fetter, 671. Pokegama Lumber Co. v. Klamath Lumber Co., 5, 1429, 1430. Polini V. Gray, 1649. Polk V. Gardner. 100. Pollard V. Photographic Co., 35, 950. Pollitt V. Long, 830, 836. Pollock V. Lester, 1527. Polly V. Hopkins, 1278. Ponder v. Cox, 169, 172. Pontius V. Winebrenner, 726. Ponton V. McAdoo, 413. Pool V. Potter, 39. Poole V. Falls R. E. R. Co., 562, 564. Poor p. Carleton, 1547, 1565. Pope V. Bell, 827. Pope V. Curl, 965. Pope r. Inhabitants of Halifax, 1239. Pope Mfg. Co. V. Johnson, 16. Poppenhusen r. Falke, 900, 904. Poppenhusen r. New York, 916, 920. Port i\ Russell, 493, 1199. Port of Mobile v. Louisville & N. R. Co., 34, 867. ARE TO THE PAGES. Portarlington v. Soulby, 114, 115, 768. Porteous v. Snipes, 1600. Porter v. Clarke, 305. Porter v. Hopkins, 1637. Porter v. Jennings, 1502, 1503. Porter v. Midland R. Co., 619. Porter v. Morere, 1555. Porter v. Pico, 350. Porter v. Rockford, R. I. & St. L. R. Co., 455, 459, 479, 486. Porter v. Scobie, 375, 380, 1627. Porter v. Witham, 701, 702, 755. Portis V. Fall, 29, 86. Portland v. Baker, 50. Portland Building Association v. Creamer, 1401. Portsmouth Brewing Co. v. P. B. & B. Co., 15. Portsmouth Turnpike Co. r. By- ington, 1619. Postal Telegraph Co. v. N. & W. R. R. Co., 1428. Postal Telegraph Co. v. W. U. T. Co., 1134, 1135. Potier's Executors v. Burden, 762, 765. Pott V. School Directors, 815. Potter V. Crowell, 921. Potter V. Fuller, 880, 896, 907, 923. Potter V. Holland, 887, 888, 896, 914. Potter V. Howe, 779. Potter V. Muller, 880, 888, 929. Potter V. Schenck, 36. Potter V. Stevens, 906. Potter t\ Village of Menasha, 798. Potter V. Whitney, 883, 896. Potts V. Levy, 817, 818. Poughkeepsie Gas Co. t\ Citizens Gas Co., 662. Poullain v. English, 247, 1382. Cll TABLE OF CASES CITED. THE REFERENCES Pound V. Supervisors of Chippewa Co., 514. Pounder c. Ashe, 302, 303. Powel V. Follet, 1432. Powell V. Aiken, 678, 679. Powell V. Allarton, 1103. Powell V. Brown. 1501. Powell V. Chamberlain, 100, 101. Powell V. Cheshire, 644. Powell V. Foster, 710. Powell V. Hopkins, 412, 431. Powell ;;. Lassalette, 1559. Powell V. Lloyd, 1104. Powell V. Parker, 36. Powell V. Parkersburg, 499. Powell V. Quinn, 324. Powell V. Rawlings, 687, 691. Powell V. Redfield, 96, 489. Power V. Village of Athens, 874, 875. Powers V. Bears. 552, 602, 603. Powers r. Waters, 99. Power's Appeal, 843. Poyer v. Village of Des Plaines, 33, 75, 1253, 1611. Poyntz V. Shackelford, 1331. Prader r. Grim, 1629. Prader v. Grimm, 1636. Pratt V. Brett, 393, 398, 655. Pratt V. Lamson, 766. Pratt r. Raymond, 445. Pratt r. Roseland R. Co., 602, 604. Pratt's Appeal, 1071. President r. Baltimore, C. & E. M. P. R. Co., 102, 621. President v. Trenton C. B. Co., 858, 872. President and Trustees v. Moore, 712. Preston r. .Tohnson, 460. Preston r. Kindrirk, 261. Preston r. Preston, 671. Pretecea r. Maxwell Land Grant Co.. 669. Price r. Clevengcr, 1517. Price V. Johnson Co., 150. ARE TO THE PAGES. Price V. Joliet Steel Co., 16, 910. Price V. Knott, 785. Price V. Oakfield H. C. Co., 735. Price r. St. Louis Mutual Life In- surance Co., 1192. Price Baking Powder Co. v. Fyfe, 1044. Price's Ex'rs if. Ayres, 367. Prickett v. Tuller, 1514. Priddie i: Thompson, 1330. Prieth r. Campbell P. & M. Co., 903. Primmer r. Patten, 1545. Prince r. McCoy, 569, 725, 727. Prince Albert r. Strange, 26, 950, 965, 971, 995, 996. Prince Mfg. Co. r. Princes Metallic Paint, 1079. Pritchard v. Sanderson, 413. Probasco r. Probasco, 1429. Proctor r. Bayley, 921. Proctor i: Pettitt, 169. Proprietors v. Braintree W. S. Co., 829. Pi'otheroe r. Forman, 267. Prout r. Gibson, 244, 378. Prout V. Lomer, 1113, 1572, 1655. Providence, F. R. & N. S. Co. r. City of Fall River, 672. Provolt r. Chicago, R. I. & P. R. Co., 606, 607. Prowett i\ Mortimer, 1086. Prudential Assurance Co. r. Knott, 968. Prudential Assurance Co. r. Thomas, 70. Prugh IK Portsmouth Savings Bank, 253. Puckette r. Hicks, 1653. Pugh V. Irish, 451. Pugh's Adm'r r. White, 1597. Piillan r. Cincinnati & Chicago Air Line R. Co., 585. Pullen r. Baker, 1483. 1542. Pullman v. Bait. & 0. R. Co., 885. Pullman r. Mayor, 1267. TABLE OF CASES CITED. cm THE REFERENCES Pullman P. C. Co. r. Central T. Co., 100. Pullman P. C. Co. v. Missouri P. R. Co., 598. Pullman P. C. Co. v. Texas & P. R. Co., 598. Pulte V. Derby, 947. Pulteney v. Shelton, 393, 655, Pulteney v. Warren, 639. Punt V. Symons, 1230. Purnell v. Daniel, 11, 1504, 1568. Purnell v. Vaughan, 411, 413. Pusey V. Bradley, 67. Pusey V. Pusey, 428. Pusey V. Wright, 1092, 1093. Putnam v. City of Grand Rapids, 1277. Putnam v. Keystone B. S. Co., 895. Putnam v. Sweet, 861. Putnam r. Valentine, 784, 815, 1529. Pyecroft r. Pyecroft, 1506. Pyle t'. Brenneman, 443, 497. Q Quackenbush r. Van Riper, 771, 1428, 1519. Quartz Hill C. G. Co. i\ Beall, 969. Quayle v. Bayfield County, 1502. Queensberry r. Shebbeare, 965. Questel v. Questel, 1390. Quincy v. Cheeseman, 423. Quinlan r. Myers, 525. Quinn v. Wetherbee, 210. Quinney r. Town of Stockbridge, 482. ■Quint V. Hoffman, 468. E Radcliffe v. Duke of Portland, 825. Radde v. Norman, 1026. Radford's Ex'rs v. Innes' Execu- trix, 53, 1511, 1571. Padican v. Buckley, 747. ARE TO THE PAGES. Raggett v: Findlater, 1021. Ragland v. Cantrell, 248. Railroad v. Greer, 234. Railroad Co. v. Telegraph Co., 1095. Railroad & Telephone Co. v. Board of Equalizers, 20, 476. Railway Co. v. Lawrence, 561, 614. Railway Co. v. McShane, 504, 507. Railway Co. v. Prescott, 504, 507. Railway Co. v. Ryan, 167, 176, 226. Raincock v. Young, 1573. Raines v. Dunning, 692. Raisin Fertilizer Co. r. McKenna, 148. 222, 224. Raleigh «S; Western Ry. Co. v. G. & G. M. & M. Co., 26, 1595. Ralston v. Miller, 366. Ramsdall v. Craighill, 23. Ramsdell v. T. W. P. Co., 421. Ramsey v. Hoeger, 479. Randall v. Carpenter, 1681, 1635. Randall v. Morrell, 1362. Randfield r. Randfield, 90. Randolph v. Randolph, 1477. Ranft V. Reimers, 1164, 1169, 1358. Ranger v. Great Western R. Co., 1121. Ranger v. New Orleans, 1241. Rankin r. Estes, 1609. Rankin v. Huskisson, 1132. Rankin v. Rankin, 425. Ransom v. Shuler, 1475. Rantzen v. Rothschild, 1449. Raphael v. Thames Valley R. Co., 1118. Rapp V. Williams, 92. Ratto V. Levy, 135, 148. Raupman v. City of Evansville, 1630. Ravenswood r. Flemings, 724. Rawson r. Samuel. 105, 236. Rayle r. Indianapolis, P. & C. R. Co., 1660. CIV TABLE OF CASES CITED. THE REFERENCES Raymond v. Boston Woven Hose Co., 884. Raymond r. Conger, 167, 1640. Raymond v. Royal Baking-Powder Co., 1044, 1079, 1669. Rea V. Longstreet, 350, 1385. Read v. Bowers, 1354. Reade v. Armstrong, 1097. Reade r. Conquest, 973, 978. Reade v. Lacy, 1002. Ready Roofing Co. v. Taylor, 1471. Reagan v. Farmers' Loan & Trust Co., 596. Reagan r. Fitzgerald, 211. Real Estate T. Co. v. Hatton, 25, 433. Real Mining Co. v. Pond Mining Co., 695. Reavis v. Reavis, 385, 386. Reboul's Heirs v. Behrens, 1488, 1540, 1541. Receivers v. Biddle, 1475, 1562. Reckner r. Warner, 554. Red V. Johnson, 508. Redd V. Blandford, 70, 1372. Reddall r. Bryan, 17, 22. Reddaway v. Banham, 1025, 1027, 1030. Red Polled C. C. of A. r. Red Polled C. C. of A., 1057, 1059, 1071. Redway v. Moore, 725, 749. Redwine v. McAfee, 169. Reece v. Northway, 1631. Reed v. Holliday, 978, 979. Reed v. Jones. 1232. Reed v. Lewis, 1134. Reed v. Mayor, 782. Reed v. Patterson, 413. Reed r. Tioga Manufacturing Co., 360, 371. Reed Mfg. Co. r. Smith & W. Co., 884. Reemelin v. Mosby, 14, 1326, 1331. ARE TO THE PAGES. I Rees V. Berrington, 1375, 1376. j Rees V. Peltzer, 1618. j Reese, In re, 1423, 1451. ! Reese v. Smith, 328. Reese v. Walton, 154. Reeser v. Johnson, 279. Reeves r. Cooper, 218. Reeves v. Dickey, 380. Reeves v. Oliver, 4, 5, 1644. Reeves & Co. v. Sprague, 1184. Reichert v. Geers, 736. Reid V. Gifford, 719, 751, 752, 832, 84L Reid V. Moulton, 1325, 1328. Reiley v. Johnston, 270. Reilly i\ Otto, 1136. Reily v. Miami E. Co., 244, 354. Reimer's Appeal, 731. Reinecke C. M. Co. v. Wood, 1410, 1413. Reinhardt r. Mentasti, 746. Reisner v. Strong, 593. Rembert v. Brown, 64, 1108, 1109, 1477, 1478. Remington r. Foster, 709. Remshart v. The Savannah & Charleston R. Co., 619, 1552. Renard v. Levinstein, 881. Rend r. Venture Oil Co., 15. Rensselaer v. Emery, 1360. Rensselaer & S. R, Co. r. Benning- ton & R. R. Co., 123. Rentfroe v. Dickinson, 1475. Renton r. Chaplin, 1362. Republic Life Ins. Co. r. Pollock^ 455. Revell V. The People. 722, 723. Rex V. Cross, 736. Rex r. Pease, 731. Rex r. Ward, 723. Reybourn v. Sawyer, 1657. Reynell r. Sprye, 1546. Reynolds r. Brendenthal, 1232. TABLE OF CASES CITED. ev THE REFERENCES Reynolds r. Clarke, 701. Reynolds v. Drainage District, 445. Reynolds v. Everett, 37, 1417. Reynolds v. Faris, 539. Reynolds v. Horine, 217, 218. Reynolds v. Howard, 379. Reynolds v. Iron S. M. Co., 1659. Rhea v. Forsyth, 702. Rhea v. McCorkle, 1617. Rheiner v. Union D. S. R. & T. Co., 618. Rhodes v. Cousins, 1397, 1398. Rhodes v. Driver, 1331. Rhodes v. Dunbar, 705, 707, 754. Rhodes v. Lee, 1499. Rhodes i\ Union Bank, 1558. Rhodes B. F. Co. v. Mattox, 216, 219. Rhymer t'. Fretz, 725. Ricard's Heirs v. Hiriart, 1542. Riccard r. Prichard, 1401. Rice 'V. D'Arville, 1149, 1151. Rice V. Rail Road Bank, 188. Rice V. Smith, 1336. Rice V. Tobias, 166, 222, 224. Rice r. Winslow, 89. Rich i\ Dessar, 1543. Rich V. Levy, 1397. Rich V. Thomas, 1480, 1508. Richard's Appeal, 716. Richards, Ex Parte, 1422, 1423, 1432. Richards r. Daugherty, 802. Richards v. Des Moines V. R. Co., 602, 605, 606. Richards r. Dower, 672. Richards v. Kirkpatrick, 43. Richards v. Northwest P. D. Ct, 813. Richards v. West, 1425, 1427, 1470. Richardson, In re. 273, 276. Richardson v. Allen, 1596, 1624, 1629. Richardson v. Ardley, 397. ARE TO THE PAGES. Richardson r. City of Eureka, 718. Richardson r. Dinkgrave, 1554. Richardson r. Emmert, 1163, 1179. Richardson -v. Lightcap, 1506. Richardson /;. Methley School Board, 1326. Richardson r. Murphy, 46. Richardson v. Peacock, 1157, 1169, 1170. Richardson v. Prince, 155. Richardson v. Stephens, 387. Richardson r. Williams, 375. Richi ('. Chattanooga Brewing Co., 562, 780, 793. Richmond v. Atwood, 1669, 1670. Richmond v. Dubuque & S. C. R. Co., 59, 1097. Richmond M. Co. v. De Clyne, 885. Richmond & S. R. Co. v. Shippen, 207, 234. Richter v. Kabat, 311. Rickard v. Caton C. Co., 1025. Ricker v. Douglas, 1577. Ricker v. Pratt, 363. Rickets v. Kitchens, 140. Rickett V. Johnson, 251. Ricketts v. Ricketts, 1390. Ricketts v. Spraker, 449. Rickey v. Williams, 1271. Riddle v. Cheadle, 1631. Riddle v. Town of Charleston, 516, Riddlesbarger v. McDaniel, 1622. Ridgeway v. Bank, 214, 225. Riedinger t?. Marquette & Western R. Co., 614. Riemer v. Johnke, 635. Rigby v. Great Western R. Co., 1119. Riggin V. Mulligan, 244, 354. Riggins V. Thompson, 7. Riggs V. Johnson Co., 128. Rigney r. Tacoma L. & W. Co., 16, 760. Rigsbee v. Town of Durham, 1502. -tJVl TABLE OF CASES CITED. THE REFERENCES Riley v. Ellmaker, 193. Riley r. Western Union Telegraph Co., 485. Rillet V. earlier, 1044. Rio Grande R. Co. v. Scanlan, 444, 449, 451, 468, 1627. Risher v. Roush, 207. Ritchie v. City of South Topeka, 524, 525. Ritter v. Patch, 457. Ritter r. Ulman, 1644. River Dun N. Co. v. North M. R. Co., 602. Rivers r. Burbank, 332. Riverside Oil Co. v. Hitchcock, 1338. Rives f. Rives, 232, 237. Roake r. American T. Co., 789. Roath V. Driscoll, 837, 841. Robb V. Village of La Grange, 709. Robbins v. Sand Creek Turnpike Co., 531, 546. Robenson v. Ross, 1653. Roberson v. Rochester F. B. Co., 34. Robert r. Sadler, 681. Roberts r. Anderson, 1499, 1524, 1565, 1566. Roberts v. Bozon, 1526. Roberts v. City of Fargo, 1238, 1268. Roberts v. City of Louisville, 1252. Roberts v. Clark, 1042. Roberts v. Davidson, 50. Roberts r. Dust, 1605, 1621. Roberts v. Fahs, 1618. Roberts v. Gwyrfai District Coun- cil, 760. Roberts v. Jordans, 1495. Roberts v. Mayor, 1237, 1240. Roberts r. McKee, 1359. Roberts v. Meyers, 992, 993, 997, 1001, 1014. Roberts v. Sheldon, 1078. ARE TO THE PAGES. Roberts v. White, 1626. Robertson 'V. Breedlove, 1287. Robertson v. Bullions, 296. Robertson v. Hill, 895. Robertson v. Hogsheads, 379, 409. Robertson r. Meadors, 642. Robertson v. Robertson, 1637. Robertson v. Smith, 1602. Robeson v. Pittenger, 826. Robinson v. Baugh, 735, 743, 757. Robinson v. Braiden, 74. Robinson 'V. Byron, 4, 679, 801. Robinson t\ Cathcart, 1477, 1478. Robinson v. City of Wilmington, 441, 456, 1665. Robinson v. Gaar, 500. Robinson v, Heuer, 1152. Robinson v. Hughes, 402. Robinson r. Jefferson, 1108, 1109. Robinson r. Joplin, 357, 358. Robinson v. Litton, 650, 651, 658. Robinson v. Maguire, 410. Robinson v. Preswick, 435, 657, 658. Robinson v. Reid's Ex'rs, 1178. Robinson v. Russell, 434, 658. Robinson v. Storm, 1037, 1073. Robrecht v. Robrecht, 1502. Robuck V. Harkins, 133. Rochdale Canal Co. v. King, 844. Rochester v. Erickson, 731, 732, 765. Rochester, H. & L. R. Co. r. New York, N. E. & W. R. Co., 589. Rock r. Mathews, 1549. Rock Island & P. R. Co. r. John- son, 613. Rock Spring Distillery Co. v. Mon- arch, 1041. Rockingham Savings Bank v. Portsmouth, 444, 456. Rockwell V. Bowers, 569. Rockwell V. Lawrence, 1516. Rodahan r. Driver, 1520. TABLE OF CASES CITED. evil THE REFERENCES Hodenhausen v. Craven, 736. Rodger, In re, 288. Rodgers v. Nowill, 1071, 1088, 1462. Rodgers v. Pitt, 1426, 1428, 1429, 1430, 1437. Rodgers v. Rodgers, 155. Roebling r. First National Bank, 669. •Roebling v. Stevens Co., 180. Roelker v. St. Louis R. Co., 615. Rogers v. Bradford, 1478. Rogers v. Cross, 65, 315, 316. Rogers v. Danforth, 395. Rogers v. Evarts, 1420. Rogers v. Haines, 178. Rogers r. Holyoke, 417. Rogers v. Lafayette Agricultural Works, 1217. Rogers v. Maddocks, 1157. Rogers v. Michigan S. & N. I. R. Co., 14. Rogers r. Michigan Southern R. Co., 432. Rogers v. O'Brien, 15. Rogers v. Rathbun, 93, 1100. Rogers v. Rogers, 84. Rogers v. Tennant, 1474. Rogers v. Week Lumber Co., 736, 754, 1555. Rogers Co. r. Wm. Rogers Mfg. Co., 1040, 1041. Rogers L & M. Works v. Erie R. Co., 4. Rogers Mfg. Co. v. Rogers, 1154, 1425, 1460, 1467, 1468. Roland Park Co. v. Hull, 103. Rolfe r. Patterson, 1121. Rolfe V. Rolfe, 1154, 1157. Rollins V. Hess, 186. Rollins V. Hinks, 969. Roman v. Strauss, 845. Romero r. Munos, 336. Root V. Railway Co., 890, 926. Roper V. Streater, 954. ARE TO THE PAGES. Roper V. Williams, 1103, 1144. Roper Lumber Co. i\ Wallace, 687. Rorke v. Russell, 1195, 1434. Rose v. Garrett, 568. Rose V. Post, 1629. Rose V. Rose, 1391. Rosenberg v. Moore, 1397, 1398. Rosenberg v. Weekes, 468. Rosenberger v. Bowen, 217. Rosendorf /;. Mandel, 1603. Rosenfield v. Gilmore, 1493. Roshell i\ Maxwell Hemp., 252. Roshi's Appeal, 293, 294. Ross V. Butler, 735. Ross V. City .of Ft. Wayne, 926. Ross V. Elizabeth R. Co., 602, 605, 1189, 1524. Ross r. Gordon. 1627. Ross V. Page, 669. Ross ?'. Thompson, 781. Rotan V. Springer, 148. Roth V. Insley, 349, 350, 402. Roth V. Marshall, 1245, 1246. Rothenburg v. Vierath, 1543. Rothrock v. Carr, 1238, 1239, 1313, 1315. Rothwell V. County of Knox, 482, 490. Rotzein v. Cox, 219. Roudanez r. Mayor of New Or- leans, 530. Round Lake Assn. r. Kellogg, 1128. Rounsaville r. Kohlheim, 705, 707. Rountree v. Walker, 219. Rouse V. Martin, 705, 707, 708. Rousillon V. Rousillon, 1158, 1175. Routh V. Webster, 1076, 1085, 1352. Rowan v. Ide, 1663, 1664. Rowbotham v. Jones, 719. Rowe V. Peabody, 470. Rowland t\ First School District. 448. ■ Rowland v. Jones, 204. Rowland v. Miller, 1136, 1138. CVlll TABLE OF CASES CITED. THE REFERENCES Rowland v. Ransome, 1644. Rowzee v. Pierce, 1293. Royal B. P. Co. v. Davis, 1083. Royal Baking Powder Co. v. Roy- al, 1037, 1042. Ruble V. Coyote G. & S. M. Co., 1582. Rucker r. Langford, 169, 241. Ruffner v. Phelps, 725. Ruffners v. Barrett, 1483. Ruge V. A. O. C. & F. Co., 1542. Ruggles V. Simonton, 255. Ruggles V. Southern Minnesota Railroad, 423. Ruhland v. Jones, 1292. Rumford Chemical Works v. Muth, 1020. Rumford Works v. Vice, 911, 919, 921. Rundell v. Murray, 982, 983. Rusk V. Berlin, 517. Russell V. Cleary, 151. Russell V. Farley, 1607, 1628. Russell V. Green, 468. Russell V. Kern, 926. Russell V. Napier, 846. Russell V. O'Dowd, 179. Russell v. Rogers, 1611. Russell r. Wilson, 1483. Russia Cement Co. v. Le Page, 1039. Rust r. War, 137. Rutherford (;. Taylor, 813. Ruthven Brothers r. Mast, 421. Rutland E. L. Co. v. M. C. E. Co., 577. Rutz V. Calhoun, 535. Ryan v. Anderson, 1629. Ryan v. Board of Commissioners, 444. Pvyan r. Boyd, 223, 224. Ryan r. Tirown, 1191. Ryan ;;. Cudaliy, 1196. Ryan r. Hamilton, 1162, 1163, 1181. ARE TO THE PAGES. s Sabloniere Hotel Co., In re, 1197. Sacket v. Hill, 1567. Sackett v. City of New Albany, 1276. Sackett v. Hillhouse, 64, 1108, 1109. Safford v. The People, 1438. Sage V. Town of Fifield, 520. Sainter v. Ferguson, 1121, 1182. Saint Johns National Bank v. Township of Bingham, 100. Sallis V. McLearn, 269. Salmon v. Clagett, 433, 434, 657, 658, 1486, 1564. Salomon v. Hertz, 26, 27. Salomons v. Laing, 1204, 1221, 1222. Salschneider v. City of Fort How- ard, 480. Salvin v. North Brancepeth Coal Co., 738. Samis v. King, 1320, 1497. Samson v. Burton, 273, 276, 277. Samuel t'. Berger, 1035. Samuel v. Buger, 1035, 1084. Samuell v. Howarth, 1375, 1376. Sanborn M. & P. Co. r. Dakin Pub- lishing Co., 959. Sanchez v. Carriaga, 220. Sand Creek Turnpike Co. v. Rob- bins, 1543. Sanderlin v. Baxter, 809. Sanders v. Foster, 316. Sanders v. Logan, 880, 912. Sanders v. Metcalf, 63, 262, 1272. Sanders-Clark v. Grosvenor Man- sions Co., 746. Sanderson v. Stockdale, 1351. San Diego Water Co. r. Pacific Coast Steamship Co., 1634. Sanford v. Poe, 18, 467. Sang Lung i). Jackson, 19. San Juan & St. L. M. & S. Co. v. Finch. 150, 222, 223. TABLE OF CASES CITED. CIX THE REFERENCES Sankey r. St. Mary's Female Acad- emy, 828. Sanquirico v. Benedetti, 1148. Sapp V. Roberts, 678. Sare v. Butcher, 149. Sargent v. George, 784. Sargent r. Seagrave, 914. Sargent Manufacturing Co. v. Woodruff, 903, 919, 920. Sarles v. Sarles, 652. Sartor t\ Strassheim, 1606. Satterfield r. John, 40, 1499. Sauer v. City of Kansas, 148. Sauerhering v. Iron Ridge R. Co., 1307. Saull V. Browne, 86. Saunders v. Bluefield W. Co., 760. Saunders v. Huntington, 103. Saunders v. Irwin, 1350. Saunders v. Jennings, 208. Saunders r. Smith, 932, 982, 983. Saunders v. Webber, 1387. Sautee River Cypress Lumber Co. V. James, 664, 688. Sauvinet /;. Poupono, 1542. Savage v. Allen, 381, 382. Savage v. Ball, 96. Savannah, F. & W. R'y v. Morton, 478. Savannah R. Co. v. Coast Line R. Co., 867. Savannah & Thunderbolt R. Co. V. The Mayor, 1294. Savidge v. Village of Spring Lake, 1238. Savings & Loan Society v. Austin, 444, 458. Savoie v. Thibodaux. 176, 177, 1488. Savory v. Dyer, 1545. Sawyer, In re, 86, 88, 1325, 1329, 1435. Sawyer v. Davis, 731. Sawyer v. Horn, 1048. Sawyer v. Kellogg, 1048. ARE TO THE PAGES. Sawyer Spindle Co. v. Taylor, 898, 911. Sawyer Spindle Co. v. Turner, 895, 921. Saxlehner v. Apollinaris Co., 1071. Sayers v. Collyer, 1143. Sayles v. Mann, 1388. Saylor r. Mockbie, 1364. Sayre, Ex parte, 1553. Sayre v. Tompkins, 441. Sayre's Adm'r v. Harpold, 237. Scarlett v. Hicks, 1405, 1491, 1581. Schaaf v. C, M. & S. R. Co., 565. •Schackle v. Baker, 165. Schaefer v. Hunnewell, 1644. Schaffner v. Young, 482. Schaidt v. Blaul, 850. Schalk V. Schmidt, 1522, 1526. Schall r. Nusbaum, 725. Schanck v. Executors of Schanck, 1368. Schaudler Bottling Co. r. Welch, 88. Schaufele /'. Doyle, 782. Scheck V. Kelly, 1608. Schell i\ Erie R. Co., 70. Scheming v. Cofer, 1636. Scherck v. Montgomery, 1219. Schermehorn v. L'Espenasse, 1476. Schermerhorn v. Merrill, 1491, 1517. Schettler v. City of Fort Howard, 480, 481. Scheuer v. Muller, 1048, 1083. Schewde v. Heinrich Bros., 780, 781. Schiffman v. City of St. Paul, 1263. Schilling v. Reagan, 176, 1646. Schlecht's Appeal, 339. Schlitz Brewing Co. v. City of Su- perior, 88. Schmaltz v. York Mfg. Co., 49. Schmidt t\ Foucher, 1653. Schmitt V. Cassilius, 394. ex TABLE OF CASES CITED. THE REFERENCES Schneider v. City of Rochester, 1642. Schock V. Falls City, 670. Schofield V. Watkins, 444. School Directors v. School Direct- ors, 44Sr, 479. School District No. 1 v. Shadduck, 12S2. School District v. Weise, 1332. School Trustees v. School Direct- ors, 1245, 1246. Schoonover v. Bright. 669. 687. Schocnover v. Condon, 424. Schopp V. City of St. Louis, 785. Schroeder v. Fromme, 269. Schubach v. McDonald, 600. Schuffert v. Grote, 1652. Schulenburg B. L. Co. r. St. L., K. & N. R. Co., 793. Schumacher v. Toberman, 1279, 1289. Schumm r. Seymour, 1238, 1241, 1244, 1261, 1262, 1264. Schurmeier r. St. Paul & P. R. Co., 561, 669, 681, 690. Schuster v. Metropolitan Board of Health, 713, 1259. Schuster v. Myers, 1552. Schuyler v. Curtis, 34. Schuyler r. Pelissier, 127. Schwab, Ex varte, 23. Schwab V. City of Madison, 176, 177. Schwarz, In re, 1446. Schwarz v. Sears, 1476. Scinvarz r. Superior Court, 1648. Scobey v. Decatur County, 533. Scobey v. Walker, 240, 344. Scofield V. Bokkelen, 11. Scofield r. City of Lansing, 499, 546. Scofield r. ICiRhth School District, 1282. Scofield r. Lansing, 499, 546. ARE TO THE PAGES. Scofield V. Perkerson, 1338, 1340. Scofield v. Railway Co., 595. Scofield V. State National Bank, 1655. Scogin V. Beall, 161. Scott V. Burton, 11. Scott V. Donald, 1344, 1526. Scott V. Hartman, 1504. Scott I'. Knightstown, 492. Scott V. McGuire, 1272. Scott r. Palms, 853. Scott V. Paulen, 1274. Scott V. Runner, 252. Scott V. Shreeve, 185. Scott V. Silvers, 333. Scott V. Smith, 1253, 1254. Scott V. Standard Oil Co., 1022. Scott V. Stanford, 946. Scott V. Wharton, 659. Scott V. Whitlow, 149. Scottish Union Insurance Co. v, Mohlman, 81. Scottish Union & National Insur- ance Co. r. Bowland, 100, 456. Scribner v. Allen, 543. Scudder v. Trenton, 627. Scull V. Reeves, 1517. Scully V. Rose, 693. Scurlock V. Scurlock, 202. Seabrook v. Mostowitz, 1653. Seabury v. Grosvenor, 1080. Seager v. Cooley, 109. Seager v. Kankakee Co., 725, 1312, 1317. Seago ('. Bass, 370. Sea Insurance Co. r. Stebbins, 423. Seaman v. Lee, 779. Searing v. Heavysides, 479, 482, 490. Searle v. Abraham, 1267. Searle v. City of Lead, 559. Sears r. Hotchkiss, 1191. 1204, 1206,,. 1213, 1222. Seaward r. Paterson, 1451. TABLE OF CASES CITED. cii; THE REFERENCES Secombe t'. Kittelson, 1338. Secor r. Singleton, 1461. Security Loan Association v. Lake, 408. Sedalla Brewing Co. v. Sedalia W. W. Co., 5, 1106. Sedgwick v. Menck, 273, 280. Sedgwick v. Redman, 1449. Seebold, In re, 284. Seebor v. Hess, 1515. Seeger v. Mueller, 847. Seeley v. Fisher, 974, 1082. Seighortner v. Weissenborn, 1362. Seiler v. Fairex, 1093. Seller v. Fuller & Johnson Mfg. Co., 886. Seixo V. Provezende, 1033, 1049, 1073, 1075. Selby V. Crystal Palace Gas Co., 1120. Selby V, Nettlefold, 852. Selchow V. Baker, 1043. Selden v. Vermilya, 1559. Selden v. Vermilyea, 320. Self V. Jenkins, 1309. Seligman v. Ferst, 1402. Selma Building Association v. Morgan, 482. Semmes r. Mayor, 1476. Seneca Falls r. Matthews, 1548. Senior v. Pawson, 820. Senter v. Hill, 362, 365, 370. Serrell v. Collins, 907. Service v. Castaneda, 1536. Sesinig v. Perry, 1630. Sessions v. Gould, 918, 1667. Severns v. Woolston's Ex'rs, 414. Seward v. Town of Liberty, 1245. Sexsmith v. Smith, 524, 525. Seymour v. City of Tacoma, 1276. Seymour v. McDonald, 809, 811, 1136, 1138. Seymour r. Morgan, 667. Shackelford v. Smith, 1596. ARE TO THE PAGES. Shackle v. Baker, 1164, 1165. Shafer, In re, 288. Shaffer v. Stull, 662, 671. Shaffer v. Sutton, 205, 206. Shalley v. Spillman, 344, 351. Shannon v. Frost, 296. Shannon v. State of Wisconsin, 1472. Shannon v. Wright, 1350, 1361. Sharon v. Terry, 125. Sharp V. Arbuthnot, 1110. Sharp V. Ashton, 1558. Sharp V. Schmidt, 224. Sharpe v. Loane, 665, 667, 669. Sharpe v. Tatnall, 350. Shaubut V. St. Paul & S. C. R. Cc.,. 720, 792. Shaul V. Duprey, 176, 179. Shaver v. Heller & M. Co., 1025, 1028, 1078. Shaw V. Chambers, 382. Shaw V. Dwight, 242, 351. Shaw V. Hill, 1271, 1655. Shaw S. Co. V. Mack, 1034. Shay V. Nolan, 176. Shearer v. Murphy, 550. Sheboygan v. Sheboygan & F. R. Co., 778. Shed V. Hawthorne, 726, 783. Sheehan v. Taft, 1383. Sheeks v. Erwin, 809, 848. Sheen v. Stothart, 1287. Sheffield Water-works v. Yeomans. 19. Sheldon v. Rockwell, 807. Sheldon v. Stokes. 356. Shelfer i\ City of London E. L- Co.. 748. Shellman v. Scott, 1474, 1502. Shelly V. Brannan, 880. Shelton r. Franklin, 1352. Shelton r. Piatt, 440, 466. Shenandoah National Bank sa.. Read, 1591. CXll TABLE OF CASES CITED. THE REFERENCES Shenandoah Valley R. Co. v. Su- pervisors, 512. Shepardson v. Gillette, 472. Shepardson v. Milwaukee B. & R. Co., 603. Sheridan v. Colvin, 1252, 1326. Sheridan v. McMullen, 646. Sheriff v. Coates, 884. Sherlock v. K. C. B. R. Co., 793. Sherlock v. Louisville, N. A. & C. R. Co., 619. Sherlock v. Village of Winnetka, 515, 1237. Sherman c. Bellows, 1530. Sherman v. Clark, 3, 43, 1193, 1232, 1328. Sherman v. Wright, 396. Shermerhorn v. Webber, 726. Sherrill v. Harrell, 1510. Sherry v. Perkins, 717, 1410, 1413. Sheward v. Citizens' W. Co., 1651. Shields v. Arndt, 765. Shields v. Mayor of Savannah, 556. Shields v. McClung, 169. Shields v. Titus, 852. Shinkle v. City of Covington, 1256. Shipley v. Caples, 846, 848. Shipley v. Ritter, 669, 690, 691. Shipman v. Beers, 826, 828. Shippen v. Paul, 1191. Shiras r. dinger, 736. Shirley r. Long, 1571. Shirley v. Watts, 152, 318, 1397, 1398. Shivery v. Streeper, 705, 707. Shoeffler v. Schwarting, 1499. Shoemaker, In re, 284. Shoemaker v. Axtell, 103. Shoemaker v. Board of Commis- sioners of Grant Co., 492. Shoemaker v. Entwisle, 103, 1255, 1640. Shoemaker v. National Mechanics IJank, 1200. ARE TO THE PAGES. Shoemaker v. South Bend S. A, Co., 970. Shonk V. Knight, 415, 1514, 1515, 1540. Shonk Tin Printing Co. v. Shonk, 28. Shook V. Daly, 991, 1006. Shook V. Rankin, 998, 1001, 1007, 1548. Shore v. The People, 1469. Short V. Spragins, 1593. Shotwell's Admr'x v. Smith, 1475. Shreve v. Black, 645, 1548. Shreve v. Voorhees, 832. Shrewsbury & B. R. Co. r. London & N. W. R. Co., 1494. Shrewsbury & C. R. Co. r. Shrews- bury B. R. Co., 20, 1102. Shricker v. Field, 169, 207, 211, 213, 1487, 1515. Shrimpton v. Laight, 1073. Shubrick v. Guerard, 626. Sickels V. Tileston, 906, 907. Sickles V. Borden, 1453. Sickles V. Gloucester Manufactur- ing Co., 880, 930. Sickles V. Manhattan G. L. Co., 1107. Sidener ?'. Norristown, 552, 602, 603, 605. Sidener v. White, 142. Siegel r. Supervisors, 447, 498. Siegel V. Town of Liberty, 1238, 1268, 1313. Siegert v. Abbott. 1079. Siegert v. Findlater, 1027, 1081, 1083. Siegfried v. Raymond, 479, 505. Sieman v. Austin, 110, 387. Sierra Nevada Mining Co. r. Sears, 1216. Silliman v. Hudson R. B. Co., 797. Silllman v. Troy Bridge Co, 799, Silliman v. Whitner, 142& TABLE OF CASES CITED. CXIU THE REFERENCES Silva V. Garcia, 646. Silva V. Rankin, 693. Silver Spring B. & D. Co. v. Wool- worth, 27. Silvers v. Traverse, 1448. Sim V. Hurst, 526. Simmons r. Cloonan, 835. Simmons Hardware Co. v. Waibel, 1034. Simmons Medicine Co. v. Mans- field Drug Co., 1031, lOSO. Simms v. Phillips, 347. Simon v. Townsend, 1503. Simons v. Martin, 210. Simons v. Morehouse, 851. Simper v. Foley. 817, 823. Simpkins v. Ward, 478. Simpson v. Denison, 1204, 1210, 1221, 1222. Simpson v. Hart, 233. Simpson v. Justice, 705, 707, Simpson v. Westminster P. H. Co., 1204, 1208. Simrall v. Grant, 1385. Sims V. City of Frankfort, 560. Sims v. Street Railroad Co., 585, 1211. Sinclair v. Commissioners of Wi- nona Co., 1265, 1313. Singer M. Co. v. Loog. 1070. Singer Machine Manufacturers r. Wilson, 1070, 1071. Singer Manufacturing Co. v. The Domestic Co., 1081. Singer Manufacturing Co. r. Union Co., 1096. Singer Mfg. Co. v. June Mfg. Co., 1047. Singer Mfg. Co. v. Wright, 1650. Sinnett v. Moles, 538, 1502, 1507, 1508, 1656. Sinnickson v. Johnson, 1510. Sipe V. Holliday, 1601. Sisk V. Garey, 264. ARE TO THE PAGES. Sixth Avenue R. Co. v. Gilbert Elevated R. Co., 1440. Sizer v. Anthony, 1594. Sizer v. Miller, 1540. Skillman v. Skillman, 1388. Skinner's Company v. Irish So- ciety, 341. Skip V. Harwood, 24, 1432. Skipwith V. Strother, 230, 231, 1100. Skirving v. National Life Ins. Co., 135. Skoll, In re, 274, 280. Slack V. Wood, 133, 134, 136. Slater v. Merritt, 1437. Slaughter House Cases, 1647, 1648, 1657. Sleeper v. Bullen, 524. Sligh _ V. Bowers, 1238. Slingerland r. Norton, 1272. Sloan r. Coolbaugh, 408. Sloan V. Moore, 1351. Sloane v. Clauss, 47. Sloman v. Walter, 89, 1120, Small V. Sanders, 1048, 1050. Small V. Minneapolis E.-M. Co., 1204, 1213, 1224. Small V. Somerville, 352. Smallman v. Onions, 656. Smith V. American Co., 70. Smith V. Appleton, 1235, 1281, 1499. Smith V. Aykwell, 1111. Smith V. Bangs, 1194, 1204, 1222. Smith V. Bank, 468. SmiCJ' '/;. Blake, 56, 1544. Smith V. City of Oconomowoc, 667, Smith V. City of Rome, 637. Smith V. Collyer, 687. Smith V. Commissioners of Leav- enworth, 444. Smith V. Cooke, 644. Smith V. Cummings, 885. Smith V. Davis, 38. CXIV TABLE OF CASES CITED. THE REFERENCES ARE TO THE PAGES. Smith V. Deweese, 220, 221. Smith r. Earl of Effingham, 92. Smith v. Fouche, 210. Smith V. Fredericlv, 247. Smith V. Fromont, 1353. Smith V. Gardner, 662, 667. Smith ('. Gregg, 1603. Smith V. Hallvyard, 896, 1429. Smith V. Harrington, 1487. Smith V. Hays, 1376. Smith V. Heuston, 815, 1529. Smith v. Jameson, 695. Smith V. Jeyes, 1354, 1361. Smith V. Johnson, 978. Smith V. Kemmerrer, 230. Smith V. Kochersperger, 517, 549, 1655. Smith i\ Loclvwood, 732. Smith V. Longe, 510. Smith V. Loomis, 1514. Smith V. Lowry, 175. Smith i\ Magourich, 1644. Smith V. Malcolm, 324. Smith r. Mason, 281. Smith i: McDowell, 570, 729. Smith V. McElwain, 1403. Smith V. McLain. 1382. Smith V. McLaren, 1645. Smith V. Mechanics Building & Loan Association, 413. Smith V. Meriden Brittania Co., 884. Smith V. Mutual Life & T. Co., 1584. Smith V. New York Consolidated Stage Co., 1430. Smith V. Pettingill, 694. Smith V. Poyas, 654. Smith V. Price, 329. Smith V. Reading C. P. Ry., 8. Smith V. Republic Life Insurance Co., 1541. Smith V. Reynolds, 1343. Smith V. Rude Bros. Mfg. Co., 468. Smith r. Sahler, 1655. Smith V. Sands, 912. Smith i\ Short, 100. Smith V. Smith, 19, 151, 666, 669. Smith V. Thomas, 1564. Smith V. Tyler, 198. Smith V. Vulcan Iron Works, 1669, 1670. Smith V. Walker, 1640. Smith V. Weldon, 1286. Smith V. Wells, 1616, 1624. Smith V. Western Union T. Co., 1440, 1657. Smith V. Whitmore, 95, 265. Smith V. Young, 845, 846, 850. Smith ;;. Zimmerman, 402. Smith's Appeal, 1157. Smith-Barry v. Dawson, 1449. Smith & Fleek's Appeal. 646. Smithhurst v. Edmunds, 425. Smyth ('. Ames, 47, 596. Snedaker, In re, 285. Snediker v. Pearson, 264. Snell V. Buresh, 782. Snider v. Rinehart, 137. Snook V. Snetzer, 117, 118, 119. Snowden v. Noah, 1053. Snyder v. Cabell, 719, 735. Snyder v. Foster, 1238. Snyder v. Hopkins, 627. Snyder v. Seeman, 1502. Snyder v. Street R. Co., 782. Sobey v. Thomas, 1494. Societe Anonyme v. Allen, 1644. Societe Anonyme v. Western Dis- tilling Co., 1429, 1446. Societe Anonyme des Anciens Es- tablissements Panhard et Levas- sor r. Panhard Levassor Motor Co., 1055. Society v. Butler, 400, 842, 1487. Society r. Diers, 1280. Society r. Holsman, 15. Society v. Low, 829, 1127. TABLE OF CASES CITED. cxv THE REFERENCES ARE TO THE PAGES. Society v. Morris Canal & Bank- ing Co., 765. Sohier r. Merril, 266. Solicitor General v. Lord Mayor of Dublin, 42, 1274. Solis Cigar Co. v. Pozo, 1071, 1074, 1079. Solomon v. Fleming, 1238, 1313. Soltau V. DeHeld, 735, 745. Somerset v. Cookson, 428. Somerville v. Mayes, 1600. Sorley v. Brewer, 1400. Soule V. City of Passaic, 715. South Bend R. R. Co. v. Am. T. & T. Co., 1640. South Carolina & G. R. R. v. E. S. T. Co., 1653. South Carolina R. Co. v. Columbia & A. R. Co., 866. South Chicago Ry. Co. v. Calumet Ry. Co., 1103, 1116. South Platte Land Co. v. Buffalo Co., 461, 462, 463, 498, 502, 1266. South Presbyterian Church v. Hintze, 348. South Side R. Co., In re, 1452. South Yorkshire R. Co. r. Great Northern R. Co., 1105, 1214. Southard v. Morris C. & B. Co., 644, 75L Southerland v. Crawford, 166, 1617. Southerland v. Harper, 347. Southern California R. Co. v. Rutherford, 1096, 1422. Southern Express Co. v. Mayor, S8. Southern Oregon Co. v. Coos County, 477. Southern Pacific Co. v. Earl, 895, 1645. Southern Pacific Co. v. Robinson, 76. Southern Pac. R. Co. v. City of Oakland, 8, 663. Southern Pac. R. Co. v. Col. F. & I. Co., 597. Southern R. Co. v. B., S. & N. O. R. Co., 602, 604. Southern Ry. Co. ik City of Ash- eville, 484, 499. Southern W. L. Co. v. Gary, 1025. Southern White Lead Co. v. Colt, 1026, 1027. Southey v. Sherwood, 981, 982, 983. Southmayd v. McLaughlin, 675, 676. Southwestern B. E. L. & P. Co. V. Louisiana E. L. Co., 20, 882. Southwestern R. Co. v. Chapman, 162. Southwestern R. Co. t'. Screven, 623. Spackman v. Lattimore, 1210. Spalding Hotel Co. r. Emerson, 1126, 1133. Spangler's Appeal, 842. Spargur v. Heard, 837. Sparhawk v. Union P. R. Co., 29, 31, 1208, 1212. Sparkman v. Higgins, 922. Sparling v. Dwenger, 568. Speak V. Ransom, 1486, 1573. Spears t\ Mathews, 1659. Spence v. Steadman, 395. Spence v. London & Birmingham Railway Company, 727. Spencer v. Point Pleasant & 0. R. R. Co., 614. Spencer t\ Rosenthall, 1385. Spencer v. School District, 1282. Spencer v. Sherwin, 1589, 1606. Spencer v. Stearns, 1652. Spencer v, Wheaton, 482. Sperry t\ City of Albina, 519. Speyrer r. Miller, 1488. CXVl TABLE OF CASES CITED. THE REFERENCES ARE TO THE PAGES. Spicer r. Hoop, .1183. Spiegel V. Gansberg, 1258. Spier V. Lambdin, 1166. Spiers v. Browne, 941. Spilman r. City of Parkersburg, 1276. Spink V. Francis, 88. S,pofEord r. Bangor & B. R. Co., 343, 666, 667. Spokane Coop. M. Co. v. Pearson, 133, 170, 171, 212. Spokane St. Ry. Co. v. City of Spokane Falls, 559. Spokes r. Banbury Board of Health, 775, 1469. Spottiswood V. Clark, 1085. Spottswood V. Higgenbotham, 172, 185. Sprague v. Rhodes, 702, 803. Sprigg V. Western Telegraph Co., 17. Spring r. Collector of Olney, 1610, 1637. Spring Valley Coal Co. i\ People, 475. Spring Valley Water Works r. Bartlett, 1251. Springer r. Walters, 725, 726. Springfield M. & F. I. Co. v. Peck, 1390. Springhead Spinning Co. r. Riley, 968. Sprinkle r. Hutchinson, 1374. Sproat r. Durland, 4. Spurgln r. White, 308. Stafford r. Shortreed, 1177. Stahl V. Ertel. 1437, 1454, 1467. Stahlbut r. Bauer, 1326. Staight r. Burn, 817, 818, 823. Stainthorp r. Humiston, 913. Stallard r. Cushing, 850. Stamper r. Roberts, 451. Stanard r. Rogers, ICO, 174. Standard Elevator Co. v. Crane Elevator Co., 884, 1669, 1670. Standard Fashion Co. v. Siegel- Cooper Co., 1149, 1151. Standard Gold Mining Co. r. By- ers, 1232. Standard Oil Co. v. Magee, 460. Standard Paint Co. r. Reynolds, 885. Stanford v. Hurlstone, 664. Stanford v. Lyon, 720. Stanley v. Bonham, 1601. Stansfield v. Habergham, 651. Stanton v. Embry, 46, 89. 134. Star Brewery Co. r. Primas, 1116, 1136, 1137, 1138, 1142, 1143, 1144. Starks v. Redfield, 434. Starr v. Chicago, R. I. & P. R. Co., 125. Starr v. Heckart, 191, 287, 288. State r. Aloe, 1326. State r. Baker, 7. State V. Baldwin, 1426, 1444. State f. Budd, 1567. State r. Callaway County Court, 1311, 1319. State r. Capital City Dairy Co., 29, 32. State V. Carpenter, 732. State r. Chase, 1647. State V. Chicago, R. I. & P. R. Co., 126. State r. Circuit Court, 483, 1425, 1426, 1428. State V. City of Eau Claire, 58, 730. 805. State r. City of Milwaukee, 1530. State V. City of New Orleans, 1654. State r. Commissioners, 1238. State r. Commissioners of Marion Co., 1287. State r. Commissioners of Wa- baunsee Co., 1303. TABLE OF CASES CITED. CXVll THE REFERENCES State r. Crawford. 710. State V. Cunningham, 57, 58. State v. Cutler, 1452, 1463. State V. Dayton & S. E. R. Co., 582, 1530. State V. Debaillon, 1494. State V. Dillon, 1647, 1648. State V. District Court, 1647. State r. District Court of Mower County, 1426, 1657. State V. Duffel, 1326. State r. Duluth S. R. Co., 1657. State r. Durkee, 1331. State V. Eddy, 1466. State r. Pagan, 718. State r. Fredlock, 1461. State y, Gilpin, 1464. State V. Goodnight, 686, 724. State V. Hager, 1319. State V. Hall, 1588. State r. Hanna. 773. State V. Harness, 1440. State V. Harpers Ferry B. Co., 1425, 1429, 1440. State r. Hill, 224. State V. Houston, 1440, 1657. State v. Jacksonville P. & M. R. Co., 1552. State r. Johnson, 1576, 1647. State V. Judge, 1335. State V. Judge Civil District Court, 1653. State V. Judge of Eighth District Court, 1493. State r. Judge of Fifth District Court, 1659. State V. Judge of Fourth District Court, 1654. State V. Judge of Nineteenth Judi- cial District Court, 1657. rtata r. Judge of Seventh District Court, 1592. £tate r. Judge of Sixth District Court, 23, 1657. ARB TO THE PAGES. I State V. Judge of Superior District Court, 59, 1493, 1643. State i\ Judge of Twelfth District Court, 1657. State r. Judge of Twenty-second Judicial District, 1653, 1657. State r. Kisbert, 1334. State V. Knight, 1434, 1449, 1450, 1468. State V. Loomis, 1545. State r. Lord, 1343, 1530. State V. Markuson, 1425, 1427, 1461. State V. Maury, 39. State V. Mayor, 724. State V. Mayor of Kearney, 1326. State V. McGlynn, 14. State V. McLaughlin, 545. State V. Metschan, 1530. State V. Milligan, 1245, 1435. State r. Monroe, 1563. State v. Morau, 57, 58. State V. Murphy, 1461. State V. Myers, 1463. State V. Ohio Oil Co., 733. State V. O'Leary, 29, 32. State V. Parish Judge of St. Ber- nard, 23. State r. Parkville & G. R. Co., 535, 1533. State V. Pennoyer, 1343, 1530. State V. Pierce, 1425. State V. Saline Co. Court, 1299, 1319. State r. Sanderson, 1311. State V. Schlitz Brewing Co., 1227. State V. Schweickardt, 29. State V. Stallcup, 1647. State V. Superior Court, 1251, 1331, 1435, 1436. State V. Theard, 86, 1435, 14o'6. State v. Tiedemann, 333. Stat8 i\ Voss, 1460. State V. Withrow, 1326. CXVlll TABLE OF CASES CITED. THE REFERENCES State r. Wolfenden, 1329. State r. Wood, 50, 86. State of Kansas r. Anderson, 1526. State Letter Co. f. Fitzpatrick, 127. State of Missouri ex rel. v. Farris, 302. State Railroad Tax Cases, 440, 443, 449, 467, 469, 486. State Savings Bank v. Kerchieval, 436. Stationers r. Seymour, 953. Stearns-Rogers Mfg. Co. ;;. Brown, 1644. Stebbins v. Challiss, 444, 453, 523. Stedman v. Webb, 1479. Steel r. Gordon, 1438, 1603, 1630. Steele r. Boone, 1610. Steele r. Municipal Signal Co., 1238, 1313. Steelsmith r. Fisher Oil Co., 1460, 1571. Steen v. March, 139. Stees r. Kranz, 1123, 1127, 1504. Stein V. Benedict, 179, 251. Stein V. Bienville W. S. Co., 856. Stein V. Frieberg, 145. Steinau v. C. G. L. & C. Co., 1092, 1094, 1095, 1097, 1116, 1118. Stenglein r. Saginaw Circuit Judge, 1331. Stephens i\ Aulls, 1164, 1165. Stephens v. Minnerly, 1275. Stephenton v. Gardiner, 69. Sterling r. Littlefield, 702. Sterling's Appeal, 573. Sterling Remedy Co. v. Spermine Medical Co., 1066. Stetson r. Chicago & E. R. Co., 616. Stettauer v. New York & S. C. Co., 1220. Steuart v. State. 1614. Stevens r. Beekman, 666, 689, 694. Stevens v. Denning, lOlG. ARE TO THE PAGE3. Stevens v. Davison, 1194. Stevens v. Erie R. Co., 602, 605, 610. Stevens v. Gladding, 940, 975. Stevens v. Keating, 887, 927. Stevens v. Myers, 1498. Stevens v. New York & 0. M. R. Co., 508. Stevens v. Paterson & N. R. Co., 13. Stevens r. South Devon R. Co., 1209, 1210. Stevens r. Wildy, 946. Stevens Point Boom Co. r. Reilly, 778. Stevenson v. Miller, 1602. Steward r. Winters, 393, 398, 399, 1118, 1123, 1130. Stewart r. Board of Commission- ers, 524. Stewart r. Brooks, 224. Stewart v. Chew, 683. Stewart v. Erie & W. T. Co., 1204, 1208. S:.ewart i\ Jackson, 411. Stswart V. Johnston, 1502. Stewart r. Little Miami R. Co., 1189. Stewart v. Miller, 1579. Stewart v. Pace, 391. Stewart r. Raymond R. Co., 612. Stewart v. Superior Court, 1648. SLewart r. Winters, 656. Stewart r. Wisconsin Central R. Co., 125. Stewart & Folz's Appeal, 795. Stewart Wire Co. v. L. C. & N. Co., 12. Stiff v. Cassell, 1103, 1116. Stiles V. City of Guthrie, 544, 546, 547. Stillman v. White Rock Manufac- turing Co., 768. Stillwell r. Oliver, 144. Stilt v. Hilton, 1499. TABLE OF CASES CITED. CXIX THE REFERENCES Stilwell V. Carpenter, 133, 169. Stilz r. City of Indianapolis, 468, 1265. Stimpson v. Putnam, 1447. Stimpson r. Rogers, 922. Stines v. Dorman, 1136, 1139. Stites V. Knapp, 216. Stitt V. Hilton, 1512. St. John's College v. Carter, 1447. St. Joseph & D. C. R. Co. r. Dry- den, 594, 1506. St. Louis V. Alexander, 1622. St. Louis V. Goode, 331, 458. St. Louis, A. & T. H. R. Co. r. Todd, 150. St. Louis I. M. & S. R. Co. r. An- thony, 475. St Louis L. I. M. & S. R. Co. r. Worthen, 455. St Louis M. & M. Co. v. Montana M. Co., 696. St. Louis National Bank v. Papin, 488. St. Louis R. Co. V. Northwestern St. L. R. Co., 868. St. Louis & S. F. R. Co. v. Apper- son, 441 St. Louis & S. F. R. Co. r. Lowder, 223. St. Louis Zinc Co. v. Hesselmeyer, 1592. St. Mary's Gas Co. v. Elk County, 504. Stockdale v. Ullery, 1352. Stocker v. Brockelbank, 1146. Stockton V. Briggs, 217, 218. Stockton V. Central R. Co., 599, 729. 1227. Stockton V. Ransom, 226. Stockton V. Williams, 109. 381, 382. Stoddart v. Vanlaningham, 16, 1549. Stokes V. Knarr, 148, 221, 447. Stokes r. Landgraff, 1020, 1061. Stokes V. The City Offices Co., 824. Stolze V. M. & L. W. R. Co., 606. ARE TO THE PAGES. Stone V. Goss, 27, 28. Stone V. Roscommon Lumber Co., 801. Stone V. Wetmore, 1330. Storer v. Great Western R. Co., 1117. Storey v. Murphy, 1238, 1244, 1268. Storm V. Mann, 627. Storrs V. Payne, 104, 185. Story V. Jersey City & B. P. P. R. Co., 42. Story V. Windsor, 639. Story's Ex'rs r. Holcombe, 964. Stoughton V. Woodard, 1044. Stout V. Curry, 656. Stout V. La FoUette, 1374. Stoutenburgh v. Peck, 1514, 1515. Stovall r. McCutcheon, 1159, 1162. Stowe V. Thomas, 971, 973. Stowers v. Postal Tel. Co., 575. St. Paul & S. C. R. Co. r. Robin- son, 44. Strang v. Richmond, P. & C. R. Co., 1097. Strasser v. Moonelis, 1642. Strathmore r. Bowes, 648. Stratton r. Stratton, 1394. Straus r. Barnett, 748. Strauss r. Phillips, 1367, 1374. Strawberry C. Co. i\ Chipman, 662. Street v. Rider, 408. Street v. Rigby, 1121. Street r. Union Bank, 1032. Street Railroad Co. v. Wildman, 38. Street Railway v. Cumminsville, 561, 614. Streissguth v. Kroll, 1109 Streit r. Citizens Fire Insurance Co., 1192. Stringfield v. Hirsch, 1630. Stringham v. Brown, 408, 1389. Strodes v. Fatten, 243, 369. Strohl V. Borough of Ephrata, 552. Strom r. American Mortgage Co., 1653. cxx TABLE OF CASES CITED. THE REFERENCES Strong V. Downing, 373. Strong V. Menzies, 1486. Strowbridge L. Co. v. Crane, 1154. Strutt V. Bovingdon, 766. Struve V. Schwedler, 936. Stuart V. Stewart & Co., 1037, 1040, 1073. Stuart V. Supervisors of La Salle Co., 148. Stubber v. Hornsby, 1323. Stubblefield v. Patterson, 154, Stubenrauch v. Neyenesch, 1257. Sturgeon v. Hooker, 1479. Sturgis V. Knapp, 1605, 1620, 1621. Sturtevant r. Milwaukee R. Co., 1482. Sturz V. De La Rue, 890. Stuyvesant r. Pearsall, 1235, 1236, 1314. Suess V. Noble, 86. Suffern v. Butler, 1499, Sugar Refining Co. v. Mayor, 799, 1285, 1287. Sullings r. Goodyear Dental Vul- canite Co., 915. Sullivan v. Graffort, 323. Sullivan v. Judah, 1425, 1426, 1428, 1470. Sullivan v. Moreno, 778. Sullivan r. Redfield, 883, 922. Sullivan v. Royer, 742. Summers r. Farish, 53, 1553. Summerville Co. v. The Augusta Co., 684. Sunderland v. Martin, 568. Supervisors v. Campbell, 543. Supervisors i\ Jenks, 444, 449, 450, 546, 547. Supervisors v. McFadden, 877. Supervisors v. Paxton, 1503. Supervisors v. Webster, 442. Supervisors of .Jackson Co. v. Brush, 1299, 1306. Supervisors of Livingston Co. v. Welder, 535, 536, 1299. ARE TO THE PAGES. Supreme Court of I. 0. O. F..v. Su- preme Court, 1594. Supreme Lodge r. Carey, 180. Susquehanna Bank v. Supervisors, of Broome Co., 441. Sutcliffe r. Dohrman, 1349. Sutphen v. Therkelson, 827. Sutro r. Wagner, 1361. Sutter V. Trustees, 292, 309. Sutton V. Head, 1136. Sutton V. Lord Montfort, 822. Sutton V. Sutton, 367, 368. Swain v. Burnley, 362, 370, 376„ 1524. Swaine v. Great N. R. Co., 703. Swan V. B., C. R. & N. R. Co., 853. Swan r. Timmons, 1580, 1596, 1597„ 1634. Swanson v. Kirby, 1163, 1170. Sweatt V. Faville, 1558. Sweeney v. Williams, 100. Sweeny v. Torrence, 1417. Sweet v. Boyd, 445. Sweet V. Cater, 1015. Sweet V. Maugham, 952, 987, 988. Sweet r. Shaw, 952. Swepson r. Call, 1550. Swett v. City of Troy, 1245, 1247. Swift V. Coker, 330. Swift i\ Swift, 1392. Swift & Co. 0. United States, 1186. Swinburn v. Smith, 59. Swindall v. Bradley,, 322. Swinney v. Beard, 444, 449, 467, 471. Switzer v. McCulloch, 803. Sword V. Allen, 672. Sykes v. Manhattan, 910. Sylvester Coal Co. v. City of St., Louis, 87, 1254. Symonds v. Hallett, 1390. T Tabor r. Clark, 1631, 1635. Tabor r. Hoffman, 925. TABLE OF CASES CITED. CXXl THE REFERENCES Taendsticksfabriks A. V. v. Myers, 1071, 1072. Taggart v. Wood, 148. Tainter v. Lucas, 453, 503, 1508. Taintor v. Mayor, 560. Talbot V. Ford, 1092, 1130. Talbot V. Hope Scott, 626. Talbott r. Randall, 1397, 1401. Talcott V. Brackett, 1182. Tallahassee R. R. Co. c. Hayward, 1594. Tallant v. City of Burlington, 526. Tallassee Manufacturing Co. v. Glenn, 492. Tallassee Manufacturing Co. i\ Spigener, 468, 470. Tallcott V. Moore, 1070, 1075. Talley v. Tyree, 804. Tamworth v. Ferrers, 649, 650. Tannage Patent Co. v. Adams, 897. Tannage Patent Co. v. Donnalan, 897. Tanner v. Irwin, 1653. Tapp r. Beverley, 147. Tapp r. Rankin, 171. Tappan r. Gray, 1325, 1330. Tarbox r. Hartenstein, 78. Tarpey r. Shillenberger, 1584, 1588. Tarrant & Co. v. Hoff, 1037, 1041, 1071, 1081. Tartar v. Gibbs, 307. Tash V. Adams, 1238, 1242, 1244. Tate V. Vance, 692. Tatem v. Gilpin. 806, 1547, 1643. Taunton v. Taylor, 711. Taylor i\ Baldwin, 90. Taylor r. Bay City S. R. Co., 615. Taylor r. Brookman, 810. Taylor v. Brownfield, 1606. Taylor r. Campbell, 201. Taylor v. Carpenter, 1033, 1034. 1035, 1089. Taylor v. City of Pine Bluff, 87. Taylor v. Clark, 684. Taylor v. Collins, 436. Tnylor r. Cook. 1646. ARE TO THE PAGES. Taylor r. Davey, 44. Taylor v. Davis, 1348. Taylor v. Dickinson, 1498. Taylor v. Fore, 287. Taylor v. Hughes, 1215. Taylor v. Kerrheval, 1325, 1329. Taylor v. L. & N. R. Co., 476, 477.. 498. Taylor v. Morgan, 1475. Taylor v. Nashville & C. R. Co,. 190. Taylor v. P., K. & Y. R. Co., 564. Taylor v. Pearce, 662. Taylor v. Ricards, 151. Taylor v. Russell, 26. Taylor v. Snyder, 1487. Taylor v. Thompson, 467, 468. Taylor V. Underbill, 355. Teaff V. Hewitt 1620. Teager v. Landsley, 119. Teasey v. Baker, 1506. Teed v. Marvin, 1113. Teegarden v. Davis, 530. Telegraph Co. v. McLean, 1103. Telephone Mfg. Co. r. S. T. Mfg.. Co., 1023. Telford v. Brinkerhoff, 133, 137. Telford r. Metropolitan Board of Works, 1210, 1274. Teller V. Carteret, 115. Ten Eyck v. Sjoburg, 341. Tenham v. Herbert, 19, 75, 76, 77. Terhune v. Midland R. Co., 1649. Terre Haute & Indianapolis R. Co.. r. Peoria & Pekin Union R. Co.,. 126, 1555, 1601. Terril's Adm'rs r. Southall's Ex'r,. 235, 1368. Terrill v. Southall, 235, 1368. Terry v. Hamilton Primary School 1612. Terry v. Rasell, 426. Tevis V. Ellis, 327, 339. Texarkana v. Leach, 570. Texas Land Co. t\ Turman, 248v. CXXll TABLE OF CASES CITED. THE REFERENCES Texas-Mexican R. Co. v. Wright, 176, 223. Texas & N. O. R. Co. v. White, 1609. Texas & P. R. Co. v. Harrison Co., 459. Texas & P. R. Co. v. Kuteman, 125. Texas & P. R. Co. v. Marshall, 1095. Texas & Pacific R. C. v. Rosedale Street R. Co., 614. Thatcher r. Humble, 689. Thayer v Wales, 896, 1556. Thayer v. Younge, 1162. The Attorney-General v. Pearson, 292. Thebaut v. Canova, 705, 755. The Company of Stationers v. Sey- mour, 953. Theed r. Debenham, 817. The Society v. Low, 1486. Thiebaud r. Tait, 468. Third Avenue R. Co. v. Mayor of N. Y.. 78. Third National Bank v. Mylin, 47, 486. Thistlethwaite v. State, 1428. Thomas, In re, 290. Thomas v. Calhoun, 805. Thomas v. Gain, 482. Thomas v. Inter-Country S. R. Co., 561. Thomas v. Jones, 393, 636. Thomas v. Kent Circuit Judge, 23. Thomas v. McDonald, 1634. Thomas v. M. M. P. U., 1196. Thomas v. Nantahala M. & T. Co., 694. Thomas v. Oakley, 680, 694. Thomas r. Stokes, 1644. Thomas v. Supervisors, 1248, 1249, Thomas v. Weeks, 884. Thomas v. Williams, 969. Thomas Iron Co. v. AUentown Min ing Co., 698. Thompson v. McCormick, 1182. ARE TO THE PAGES. Thompson v. Bohannon, 219. Thompson v. Brown, 1369. Thompson v. Commissioners of Canal Fund, 1341. Thompson v. Donnell Mfg. Co., 895. Thompson v. Engle, 335. Thompson v. Laughlin, 157, 198, 199. Thompson v. Lynam, 435, 632., Thompson i: Maloney, 780. TTiompson v. Manhattan R. Co., 564. Thompson v. Maxwell, 1545. Thompson v. McNair, 1595. Thompson v. Nelson, 1644. Thompson iK New York & H. R. Co., 870. Thompson v. Penn. R. Co., 1428, 1470. Thompson v. Society of Tammany, 1194. Thompson v. Stanhope, 965, 966. Thompson r. Williams, 629. Thompson's Appeal, 1386. Thompson-Houston Electric Co., r. Hoosick Ry. Co., 899. Thompson-Houston Electric Co. V. Nassau E. R. Co., 1665. Thompson-Houston Electric Co. r. Ohio Brass Co., 899. Thompson-Houston Electric Co. V. Union Ry. Co., 908. Thorley's Cattle Food Co. v. Mas- sam, 968, 969. Thorn v. Sweeney, 661, 666. Thorne v. Sweeney, 7. Thornloe i\ Skoines, 1553. Thornton v. Finch, 430. Thornton v. Grant, 777. Thornton v. Ramsden, 384. Thornton r. Roll, 705. Thornton r. Thornton, 74 Tliorpo r. Bnimfitt, 849. Threlkelds i\ Campbell, 374. TABLE OF CASES CITED. CXXIU THE REFERENCES Thropp V. Field, 1457. Thruston v. Mustin, 645. Thum Co. V. Tloczynski, 27, 1095. Thurman i: Burt, 1110, 1111. Thurston r. Haskell, 1631. Thweatt r. Gammell, 1468, 1469. Tibbetts v. Fore, 1385. Tibbits r. Miller, 1544. Tichenor v. Wilson, 751, 752. Tfede v. Schmeidt, 29, 1474. Tifel V. Jenkins, 17. Tifft, In re, 288, 1467. Tifft V. City of Buffalo, 1316. Tifft r. Iron Clad Mfg. Co., 276. Tift, In re. 288, 1467. Tift V. Southern R. Co., 596. Tilghman v. Mitchell, 900. Tillery v. Wrenn, 413. Tiiton V. Oregon C. M. R. Co., 498, 499. Times Publishing Co. v. Everett, 1261, 1264. Tingue v. Village of Port Chester, 532. Tink V. Rundle, 91. Tinkler r. Board of Works, 1281. Tinsley v. Lacy, 973, 982. Tipping V. Eckersley, 1117, 1119. Tipping r. St. Helen's Smelting Co., 705. Tipton Fire Co. v. Barnheisel, 1204. Tisdale v. Insurance Co., 80. Tishimingo Savings Institution v. Buchanan, 98. Titus V. Mabee, 1476, 1484, 1655. Tobriner v. White, 176. Todd V. Pratt, 245, 390. Todd V. Rustad, 1271, 1272. Tode V. Gross, 1121, 1158. Tod-Heatly v. Benham, 1123, 1125. Toledo V. Lafayette, 510. Toledo, A. A. & N. M. Ry. Co. v. Detroit, L. & N. R. Co., 335, 1640. Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 4, 33, 53, 595, ARE TO THE PAGES. 1410, 1419, 1421, 1422, 1423, 1454. Tolman v. Salomon, 474. Tomasini v. Taylor, 667. Tomboy G. M. Co. v. Brown, 1650. Tomlinson v. Branch, 505. Tomlinson v. Rubio, 339. Tommy v. Ellis, 238. Tompkins r. Drennen, 170. Tompkins r. Tremlin, 240. Tooke V. Newman, 412, 414. Tootle V. Ellis, 225. Topeka City Ry. Co. r. Roberts, 441, 464. Topeka W. S. Co. v. Roberts, 441, 464. Topp V. White, 366. Toppan V. National Co., 906, 907, 914. Tornanses v. Melsing, 1668. Torrent r. Common Council, 1285. Torrent v. Muskegon Boom Co., 397. Torrey v. Camden & A. R. Co., 579. Touzalin v. City of Omaha, 498, 499. Towle V. Towle, 1589. Town of Anamosa v. Wurzbacher, 198. Town of Burlington r. Schwarz- man, 781, 1532. Town of Cicero r. Williamson, 1266. Town of Covington r. Nelson, 1287, 1288. Town of Drummer r. Cox, 479. Town of Durham r. R. & D. R. Co., 1504. Town of Guilford r. Cornell, 1585. Town of Jamestown r. Chicago, B. & N. R. Co., 583. Town of Lebanon r. Ohio & M. R. Co., 478, 480. Town of Neshkoro r. Nest, 781, 1531. CXXIV TABLE or CASES CITED. THE REFERENCES Town of Platteville v. Galena & Southern Wisconsin R. Co., 583. Town of Springport v. Teutonia Savings Bank, 1301. Town of Sullivan v. Phillips, 719, 784. Town of Westerly v. Westerly Waterworks, 1663. Town of Williamstown v. Darge, 1472. Townsend v. Epstein, 790. Townsend v. Jarman, 1356. Townsend i\ McDonald, 769. Townsend r. Quinan, 236. Township of Dixon r. Board of Commissioners, 1533. Township of Hutchinson v. Filk, 722, 1531. Tracy v. LeBlanc, 702. Tracy v. Torrey, 914. Trademan's Bank r. Merritt, 1518. Traders Ins. Co. v. Farwell, 449, 459. Traphagen r. Mayor, 1295. Travers r. Stafford, 1572. Travis r. Ward, 1270. Treadwell c. Payne, 319. Trego V. Hunt, 1169, 1170, 1357. Trenor r. Jackson, 1129. Trent r. Cartersville B. Co.. 876. Trenton Banking Co. r. McKelway, 108, 383. Trester i: Pike, 1631, 1635. Trevigne v. School Board, 38. Tribette t?. I. C. R. Co., 82. Tribune Association r. The Sun, 665, 675, 676. Triebert v. Burgess, 1401. Trimmer v. Penn. S. & N. E. R. Co., 1454. Trimmier v. Bomar, 1304. Triplett v. Turner, 160. Troe r. Larson, 801. Trotter r. Paunley, 1280. Troupe r. Eade, 1647. ARE TO THE PAGES. Trowbridge ;;. True, 717, 812. Troy v. Norment, 11, 1568. Troy & B. R. Co. v. B., H. T. & W_ R. Co., 15, 589, 623. Trueblood v. Hollingsworth, 143. Truehart v. Price, 811. Truesdale v. Peoria Grape Sugar Co., 617. Truesdell's Appeal, 542. Trulock i\ Merte, 740. Truly V. Wanzer, 243, 362, 364, 366, 370. Trust Co. V. Georgia, 1227. Trust Co. V. Weaver, 158. Trustees v. Cowen, 731, 809, 810,. 1136, 1143, 1531, 1532. Trustees v. Davenport, 1656. Trustees r. Gilbert, 1523. Trustees v. Gray, 814. Trustees v. Hoessli, 306, 682, 1533, 1534. Trustees v. Nicoll, 75. Trustees r. Proctor, 304. Trustees v. Stewart, 303. Trustees v. Walsh, 675. Trustees v. Youmans, 767, 840. Tuckahoe Canal Co. r. Tuckahoe R. Co., 858. Tucker r. Carpenter, 53, 54. Tucker v. Kenniston, 402. Tufts V. Little, 631. Tugwell r. Eagle Pass P. Co., 874. Tulk v. Moxhay, 1135. T'ullock r. Mulvane, 1596. Tumlin -v. Van Horn, 43. Tuolumne Water Co. v. Chapman,. 761, 762. Tupper V. Powell, 93, 1100. Turk V. Ross, 1374. Turnbull v. Ellis, 1646. Turner r. City of Mobile, 19, 81, 82, 110. Turner v. Cuthrell, 1507. Turner r. Evans, 1177. Turner r. Gatewood, 286, 287, 1455. TABLE OF CASES CITED. CXXV THE REFERENCES Turner v. Major, 1359. Turner v. McCarter, 1381. Turner r. People's Ferry Co., 776. Turner v. Robinson, 949, 996. Turner v. Scott, 1510, 1657. Turner v. Stephens, 1499. 'Turner v. Wright, 648. 'Turney v. Stewart, 672. 'Turpin v. Jefferson, 1485. 'Turpjn V. Povall, 1100. Turpin v. Thomas, 169, 175. Turton & Sons v. Turton & Sons, 1036. Tutt V. Ferguson, 214. Tuttle V. Church, 751. Tuttle V. Matthews, 891. Twart v. Twart, 656. Twigg V. Hopkins, 232, 237, 267. Tyack v. Brumley, 855. Tygart's Valley Bank r. Town of Philippi, 498, 512. Tyler v. Hamilton, 1634. Tyler v. Hamersley, 63, 262. Tyler v. Wilkinson, 760, 769. Tyler Mining Co. r. Last Chance M. Co., 1607. Tyne v. Dougherty, 1507. u Uhl r. Dillon, 1397. Uhl v. Irwin, 1545, 1551. Uhl r. May, 350, 356. Uhlfelder v. Levy, 251. Uhrig V. St. Louis, 1614, 1636. Ulbricht v. Eufaula Water Co.. 14, 760. Ulrich, In re, 273. Umfreville r. Johnson, 736. Unangst's Appeal, 581. Underhill v. Spencer, 1636. Underwood v. Barker, 1158. Union Bank v. Kerr, 1545. Union Bank v. Poultney, 246, 355. ARE TO THE PAGES. Union Bethel Church r. Civil Sher- iff, 1589. Union Co. v. Binney, 911. Union Iron Works v. Bassick Min- ing Co., 316. Union Life Ins. Co. v. Riggs, 125. Union Lumber Co. v. Allen, 1541. Union M. L. I. Co. v. University of Chicago, 125. Union M. & M. Co. v. Warren, 25. Union Pac. R. Co. v. Carr, 515. Union Pacific R. Co. v. Lincoln Co., 443, 1301, 1302. Union Pacific R. Co. v. McShane, 550. Union Pacific R. Co. v. Merrick Co., 1305. Union Pacific R. Co. v. Ruef, 33, 1410, 1413, 1414, 1419, 1422. Union & Planters Bank v. City of Memphis, 505. Union Steam-Boat Co. v. City of Chicago, 1245. Union Strawboard Co. v. Bonfleld, 1158, 1159. Union Trust Co. v. Weber, 444, 459, 460, 474. United Brethren Church v. Van Dusen, 270. United Indurated Fibre Co. /;. Whippany Mfg. Co., 896. United L-ines T. Co. v. Grant, 445, 466, 517. United N. J. R. & C. Co. r. Stand- ard Oil Co., 598. United States v. Agler, 1418, 1422, 1423, 1426. United States v. Brighton Ranche Co., 685, 686, 724. United States v. Cleveland & C. C. Co., 685, 724. United States r. Colgate, 890. United States r. Collins, 156. United States r. Duluth, 18, 767. CXXVl TABLE OF CASES CITED. THE REFERENCES United States r. Elliott, 33, 141S, 1419, 1422. United States v. Gear, 697. United States v. Haggerty, 1410, 1412, 1413, 1423. United States v. Joint Traffic Asso- ciation, 1184, 1185. United States v. Keokuk, 128. United States v. Kniglit, 1186. United States v. Louisville & P. C. Co., 59, 1217. United States v. McLemore, 156. United States r. Mississippi & R- R. B. Co., 768. United States v. Parkhurst-Davis Mercantile Co., 123. United States v. Parrott, 52, 694, 1547. United States i: Trans-Missouri Freight Association, 1185. United States v. Weber, 1423. United States v. Workingmen's Council. 1417, 1418. United States E. L. Co. v. Metro- politan Club, 9, 1107. United States F. L. & E. Co. r. Gallegos, 662. United States Gramophone Co. v. Seaman, 1644. United States H. Co. v. Iron Mold- ers' Union, 1410, 1640. United States Mitis Co. v. Detroit S. & S. Co., 1543. United Telephone Co. v. Dale. 1430, 1463. Universities v. Richardson, 880, 978, 986. University v. Tucker, 653. Updegrall v. Crans, 1328. Upmann v. Elkan, 1083. Up River Ice Co. v. Denier, 1163, 1167, 1177. Uren v. Walsh, 652, 670, 1291. Usborne r. Usborne, 657. ARE TO THE PAGES. Vacuum Oil Co. r. Climax Refining Co., 1020, 1022. Vail V. Knapp, 117, 118, 119. Vail i\ Mix, 804, 833. Valentine v. Washington, 424. Valle V. Zeigler, 482. Valley Iron Works Mfg. Co. v. Goodrick, 1502, 1503. Valley P. & P. Co. (;. West, 835. Valloton c. Seignett, 93. Van Beil r. Prescott, 1022. Van Bergen v. Van Bergen, 701, 702. Vance v. East Lancashire R. Co., 1210. Van Cott i\ Supervisors, 482. Vanderbilt, 7n re. 855, 863, 1471. Van Dewater v. Kelsey, 1652. Van Doren v. Mayor, 500, 1324. Vane v. Barnard, 648. Van Horn v. Keenan, 1094. Van Horn i: Talmage. 312. Van Home v. Newark P. R. Co., 725, 728. Van Houten v. First Church, 307. Van Kuren v. Trenton Company, 1353. Van Mater v. Conover, 414. Van Mater r. Holmes, 1523. Van Norfs Appeal, 448. Van Ranst o. New York College, 1195. Van Ratcliff v. Call, 404. Van Rensselaer r. Emery, 1365. Van Rensselaer r. Kidd, 500. Vansandan v. Rose, 1430, 1431. Van Wert v. Webster, 316. Vanwinkle v. Curtis, 669, 685. Van Wyck v. Alliger, 643. Vanzant /'. Vanzant. 1390. Varick r. Mayor, 682. Varick r. New York, 341. TABLE OF CASES CITED. CXXVll THE REFERENCES Varizandt v. Argentine M. Co., 1461. Varney v. Pope, 844. Vass V. Magee, 166. Vathir v. Zane, 203. Vaughn v. Central Pacific R. Co., 890, 924. Vaughn v. Johnson, 218, 1563. Vavasseur r. Krupp, 893. Vegelahn v. Gunther, 34, 1410, 1412, 1413, 1414, 1419. Verges v. Gonzales, 1589. Vermont & Canada R. Co. v. Ver- mont Central R. Co., 117, 118. Vervalen v. Older, 636. Vesta Mills v. City Council, 499, 504. Vestry of Islington v. Hornsey Council, 711. Viano r. Baccigalupo, 1025. Vieley v. Thompson, 543. Vilas V. Milwaukee & M. R. Co., 611. Village of Celina v. Eastport Sav- ings Bank. 136, 268. Village of Dolton v. Dolton, 148, 176. Village of Dwight v. Hayes, 704, 774. Village of Hyde Park v. City of Chicago, 1267. Village of Itasca v. Schroeder, 556, 670. Village of Pine City v. Munch, 1531. Village of Princeville v. Auten, 813, 814. Village of St. Johns v. McFarlan, 712, 1258. Villavas v. Walker, 1457. Vincent v. Chicago & A. R. Co., 591. Vincent v. King, 1121. Vipan V. Mortlock, 1572. Virginia Mining Co. v. Wilkinson, 100. ARE TO THE PAGES. Vliet V. Lowmason, 1515, 1516. Vliet V. Sherwood, 1553. Vogler V. Montgomery, 350. Vogt V. Ayer, 480, 497. Vollmer's Appeal, 756. Von Joel V. Hornsey, 4, 11. Voshell V. Hynson, 1499. Voss V. Union School District, 550. Vreeland v. New Jersey Stone Co., 1478. w Wabash Ry. Co. v. McCabe, 1622. Wabash, St. L. & P. R. Co. v. John- son, 479. Wachtel v. Wilde, 1397. Wade V. London, 1483. Wade V. Percy, 374. Wadley v. Blount, 88, 125. Wadsworth v. Goree, 664, 688. Waffle i\ Vanderheyden, 1563. Wagner v. Mee.ty, 1306, 1313. Wagner v. Pegues, 217, 244. Wagner v. Shank, 191, 223. Wagoner v. Loomis, 451, 488. Wahl V. M. E. Cemetery Assn., 757. Wahle V. Reinbach, 704, 747. Waite V. Ballon, 411. Waite V. Chichester Chair Co., 16, 910. Wakeman v. New York, L. E. & W. R. Co., 846. Walcot V. Walker, 981, 985. Waldo V. Denton, 169. Waldron v. Letson, 423. Waldron v. Marsh, 685. Walker v. Backus H. Co., 920, 1499, 1644. Walker v. Brewster, 744. Walker v. Burks, 419. Walker v. Cockey, 412. Walker v. Devereaux, 1229. • CXXVlll TABLE OF CASES CITED, THE REFERENCES ARE TO THE PAGES. Walker v. Emerson, 14, 671. w'alRer v. Fox, 663. Walker v. Gurley, 228. Walker v. Heller, 186. Walker v. House, 1363. Walker v. Hunt, 142, 143, 185, 186, 346. Mad River R. Co, Mickletliwait, 71. Morgan Park, 1190. Walker Walker Walker v. Morgan Park, 1245, 1246. Walker v. Pritchard, 1595, 1596, 1624, 1631, 1635. Walker v. Seigel, 273. Walker v. Shepardson, 725, 1532. Walker v. Stone, 1502. Walker v. Villavaso, 162, 219. Walker v. Wainwright, 297, 298. Walker v. Walker, 395, 1559. Walker v. Zorn, 391. Wall V. Cloud, 833. Walla Walla v. Walla Walla Water Co., 47, 1184, 1297. Wallace, In re, 273, 274, 289. Wallace v. Arkansas C. R. Co., 596. Wallace v. York, 1634. Wallack v. Society, 81. Wallis V, Dilley, 1617, Walsh V. Smyth, 1570. Walter v. Ashton, 1076, 1352. Walter v. Emmont, 1052. Walter v. Hartwlg, 352. Walter v. Howe, 974. Walter v. Lane, 951. Walter v. Selfe, 735. Walter v. Steinkopff, 956, 960. Walters v. Fredericks, 1483. Walton V. Crowley, 1033. Walton V. Beveling, 1304, 1435, 1602. Walton V. Johnson, 393, 394, 1539. Walton V. Mills, 762. Waltrous V. Allen, 1139. Walts r. Foster, 784. Walworth v. Board of Supervisors, 1550. Wamsley v. Stalnaker, 363. Wangelin v. Goe, 680. Warburton v. London & B. R. Co., 1559, 1560. Ward V. Beeton, 948. Ward V. City of Little Rock, 787. Ward V. Derrick, 176, 179. Ward V. Detroit, M. & M. R. Co., 614. Ward V. Society of Attornies, 1210. Ward V. Van Bokkelen, 1507. Ward V. Whitfield, 1401. Warden v. South Eastern R. Co., 1138. Warden v. Supervisors, 441, 444, 447, 448. Wardens v. Town of Washington, 1253. Ware r. Bazemore, 1215. Ware i\ Grand Junction Water Works Co., 41. 1209. Ware v. Horwood, 136. Ware v. Regent's Canal Co., 1189. Warfel v. Cochran, 1325. Warfield v. Owens, 52. Warington v. Wheatstone, 70. Warne v. Morris C. & B. Co., 842. Warne v. Routledge, 947. Warner v. Jacob, 417. Warner i'. Railroad Co., 613. Warren v. Carey, 371, 377. Warren i\ Monnish, 1548. Warren Co. Agricultural Joint Stock Company v. Barr, 1238, 1239, 1313, 1314. Warren R. Co. v. Clarion Co., 1546. Warrin r. Baldwin, 1239. Warsop V. City of Hastings, 1552. Warwick r. Norvefl, 73, 74. Washburn v. Gould, 887. Washer v. Brown, 1499. * Washington p. Barnes, 1370. Washington r. Emery, 11, 71. TABLE OF CASES CITED. CXXIX THE REFERENCES Washington's Ex'r v. Parks, 1617. Washington & G. R. Co. r. District of Columbia, 33. Washington & I. Ry. Co. r. Coeur d'Alene R. & N. Co., 1644. Washington University v. Green, 3, 4, 8. Water Commissioners r. Hudson, 724. Water Lot Company r. Bucks, 1144, 1145. Waterbury, In re, 1197. Waterbury r. Bouker, 1608. Waterbury Savings Bank r. Law- ler, 448. Waterloo i\ Waterloo S. R. Co., 1297. Waterloo W. Co. v. Hoxie, 621. Waterman o. Johnson, 409. Waterman v. Shipman, 1043, 1071. Waters v. Lewis, 662. Waters v. Mattingly, 192. Waters P. O. Co. v. City of Little Rock, 528. Watkins v. Brent, 1372. Watkins o. Griffith, 517, 530. Watkins v. Logan, 240, 344. Watrous v. Allen, 1138. Watson r. Citizens' Savings Bank, 1428, 1437. Watson V. Farrell, 665. Watson V. Hunter, 643, 644. Watson V. Jones, 300. Watson r. Palmer, 135. Watson V. Sutherland, 47, 141, 346. Watt's Appeal, 1207. Watts V. Sanders, 1594, 1599. Wayne o. Mayor of Savannah, 513. Weakley r. Page, 749. Wearin v. Munson, 626. Weaver v. Mississippi & R. R. B. Co., 1656. Weaver r. Poyer, 267, 1580. 1655. Weaver r. Toney, 1436, 1550. Webb r. Boyle, 633. ARE TO THE PAGES. Webb i: Cutsinger, 477. Webb c. Hayner, 402. Webb c. King, 1557. Webb v. Laird, 1615. Webb V. Portland Mfg. Co., 760, 769, 834. Webb V. Powers, 961, 978. Webb r. Ridgely, 1231, 1545. Webb r. The Portland Manufac- turing Co., 760, 769, 834. Webber r. Gage. 809, 848. Webber r. Wilcox, 1584, 1585. Weber v. San Francisco, 524. Weber r. Timlin, 1272. Webster v. Chew, etc., 96. Webster v. Couch, 43. Webster v. Dillon, 1152. Webster o. Douglas County, 1238. Webster r. Harwinton, 542. Webster v. Skipwith, 196, 1528. Webster o. South Eastern R. Co., 609. Wedderburn v. Wedderburn, 116, 1526. Weeks r. Milwaukee, 514, 516. Weems v. Weems, 169. Weener v. Brayton, 1062, 1077. Weetjen v. St. Paul & P. R. Co., 585. Wehmer ii Fokenga, 310. Weigel i\ Walsh, 669. Weil V. Ricord, 711. Weinstock v. Marks, 1031. 1065. Weir ('. Day, 1282. Weise y. Welsh, 656. Weiss ('. Jackson County, 1296. Weiss V. Oregon I. & S. Co., 760, 761, 829. Welch V. Byrns, 23. Welch V. Clatsop County, 441, 468. Welch n. County of Plumas, 865. Welch r. Knott, 1085. Welch r. Parran. 1520. Welde V. Scotten, 16, 43. Weldon r. Dicks, 939, 984. cxxx TABLE OF CASES CITED. THE REFERENCES ARE TO THE PAGES. Wellborn v. Davles, 783. Wellenvoss v. Grand Lodge, 35. Weller o. Smeaton, 751, 752, 761. Wellesley v. Mornington, 1446, 1448, 1449. Wellington & P. R. Co. ;;. Cashie & C. R. Co., 580. Wellman r. Harker, 1356, 1546. Wells, In re, 284. Wells c. Central Vermont R. Co., 443, 486. Wells V. City of New Orleans, 1249. Wells I'. Coleman, 1640. Wells V. Dayton, 441, 457. Wells V. Gill, 898, 900. Wells v. Oregon R. & N. Co., 1426, 1467. Wells V. Wells, 422. Wells, Fargo & Co. v. Crawford County, 455, 468. Welsbach Co. v. Cosmopolitan I. L. Co., 904. Welsh V. Morris, 1163. Welton V. Dickson, 47. Welty r. Jacobs, 1095, 1097, 1116, 1117, 1149, 1153. Welz V. Rhodius, 1166. Wentworth v. Turner, 636. Wentzel i\ Robinson, 1628. Wescott V. Mulvane, 1482. West ('. Ballard, 517, 519. West r. Belches, 158. West V. East Coast Cedar Co., 1607. West i: Flannagan, 112, 395. West V. Mayor, 75, 1253, 1254. West r. Page, 645. West r. Smith, 1475. West r. Walker, 646, 687. West (;. Wayne, 192. West Coast Improvement Co. r. Winsor, 1645. West .Jersey R. Co. r. Capo May & S. L. R. Co., 1191. West Point Iron Co. r. Reymert, 696. West Portland Park v. Kelly, 459. West Publishing Co. v. Lawyers C. P. Co., 941, 956, 979, 987. Westbrook M. Co. v. Warren, 762. Westcott V. Gifford, 645. Western v. Woods, 218. Western Electric Co. v. Anthracite Tel. Co., 902. Western Electric Co. r. Keystone Tel. Co.. 901. Western Electric Co. r. Williams- Abbott Electric Co., 1663, 1665. Western M. & M. Co. r. Virginia C. C. Co., 691. Western Maryland R. Co. r. Ow- ings, 602, 604. Western Maryland R. Co. r. Patter- son, 102, 621. Western N. C. R. Co. r. Georgia & N. C. R. Co., 589. Western P. R. Co.'s Appeal, 586. Western R. Co. r. De Graff, 1338. Western R. Co. v. Nolan, 441. 444, 449, 451. Western Ry. r. Alabama G. T. R. Co., 579. Western Star Lodge r. Schminke, 1338, 1339. Western Union T. Co. r. American Union T. Co., 120i. Western Union T. Co. r. Judkins, 621, 661. Western Union T. Co. r. National T. Co., 1201. Western Union T. Co. r. Pacific & A. T. Co., 49. Western Union T. Co. r. Rogers, 1126. Western Union T. Co. i\ St. .Joseph & W. R. Co., 1226. Western Union T. Co. r. Union Pa- cific R. Co., 1149. Western Wooden Ware Association r. Starkey. 1159.. TAliLE OF CASES CITED. CXXXl THE REp-ERENCES Westervelt r. National Paper Co., 27, 28, 928, 1095. "Westinghouse r. Carpenter, 924, 926. Westinghouse A. B. Co. r. Chris- tensen E. Co., 1448, 1468. Westinghouse Co. d. Christensen Co., 1663. Weston V. Arnold, 817, 821. Weston V. Woodcock, 701. Wetherell v. Town of Newington, 1290. Wetmore v. Scovell, 966. Wetmore v. Story, 561. Wetzstein v. B. & M. Co., 7, 1641. Weyse v. Crawford, 490. Whalen v. Dalashmutt, 667. Wharf Case, 24. Wharton v. May, 114. Wharton ;;. Wharton, 1390. Wheaton v. Peters, 934, 936, 937, 955, 963. Wheeler ;;. Bedford, 813. Wheeler v. Johnston, 1025, 1060. Wheeler v. Rice, 1271. Wheeler v. Steele, 806. Wheeling Bridge Case, 797. Whippany Mfg. Co. o. United I. F. Co., 902. Whipple, In re. 273, 282. Whipple V. Hutchinson, 52, 1464, 1471, 1553. Whipple V. Village of Fair Haven, 715. Whitaker v. Hudson, 737. Whitchurch v. Hide, 855. Whitcomb o. Girard Coal Co., 20, 882. White, In re, 1390, 1425. White V. Berry, 1325. 1329, 1330. White V. Brooke, 1615. White V. Clay's Ex'rs, 1595. White V. Cohen, 735. White V. Commissioners, 1237. White V. Espey, 350. ARE TO THE PAGES. White /;. Fitzhugh, 1570. White V. Flannigan, 685. White V. Forbes, 702, 704, 801, 803. White /;. Givens, 402. White V. Heath, 921. White r. Inebriates Home, 1642. White V. Jameson, 735, 758. White 0. Mechanics' Building Fund Association, 419. White 0. Nashville & N. R. Co., 606. White r. Nunan, 1653. White c. Raymond, 460. White r. Schloerb, 283. White /-. Steuder, 490. White r. Walbridge, 921, 925. White ij. Warner, 1094. White V. Washington's Ex'r, 215, 230, 1100. White's Creek Turnpike Co. v. Davidson Co., 858. White Dental Mfg. Co. v. Johnson, 895. White Sulphur Springs Co. r. Rob- inson, 495. Whitecar v. Michenor, 4, 5, 305. Whitehead v. Farmers' Loan & Trust Co., 470. Whitehead v. Kitson, 970. Whitehill r. Fauber, 351. Whitehurst r. Green, 1556. Whitelaw, l7i re, 127. Whitelegg v. Whitelegg, 626. Whiteman v. Fayette Fuel Gas Co., 1107. Whitfield r. Clark, 422. Whitfield v. Rogers, 725, 801. Whiting v. Sheboygan & Fond du Lac R. Co., 1309. Whitley v. Dunham Lumber Co., 1502, 1503. Whitman p. Robinson, 1361. Whitman r. Wallis, 344. I Whitmore, Ex parte, 1647, 1648. I Whitney /•. Mayor, 1250. CXXXll TABLE OF CASES CITED. THE REFERENCES Whitney v. Saloy, 414. Whitney o. Wilder, 124. Whittaker v. City of Janesville, 444, 452, 473. Whittaker v. Hill, 1504. Whittaker v. Howe, 1157, 1158, 1174, 1355. Whittingham v. Wooler, 1008. Whitwood Chemical Co. v. Hard- man, 1152. Whyte V. O'Brien, 236. Wick China Co. v. Brown, 1410, 1413. Wickham v. Davis, 1349. Wickliffe v. Owings, 350. Wicks c. Hunt, 718. Wiedner v. Thompson, 421. Wier's Appeal, 741. Wierich v. De Zoya, 134. 189, 190. Wiggin V. New York, 500. Wiggins V. A., T. & S. F. R. Co., 512. Wiggins V, Armstrong, 152, 317, 318. 1397. Wight V. Thomas, 449. » Wilber v. Wooley, 1260, 1425. Wilbur, In re, 278. Wilcocks V. Carter, 69. Wilcox V. Ryals, 1110. Wilcox V. Walker, 427. Wilcox S. P. Co. V. Schimmel, 1428, 1437. Wilcoxon M. Co. v. Atkinson, 1644. Wilder i). De Cow, 780. Wilder v. Lee, 173. Wilder i7. Strickland, 707. Wilds ». Layton, 634. Wilds D. St. Louis, A. & T. H. R. Co., 585. Wildy V. Bonny's Lessee, 391. Wiley V. Board of Commissioners, 1245. Wiley r. Flournoy, 4r,l. 462, 498. .''.02. Wilhelm r. Woodcock, 344. 357. ARE TO THE PAGES. I Wilhelmson v. Bentley, llOO. Wilhoit V. Castell, 1114. Wilkie V. City of Chicago, 80. Wilkie V. Rochester & S. L. R. Co., 1232, 1491. Wilkin V. City of St. Paul. 559. Wilkins v. Aiken, 932, 960, Wilkins v. Hogue, 362, 365, 370. Wilkinson v. City of Peru, 540. Wilkinson v. Dobbie, 9. Wilkinson v. First N. Ins. Co., 98. Wilkinson v. Rewey, 217. Wilkinson v. Rogers, 1119, 1128. Willamette Iron Works v. O. R. & N. Co., 574. Willard v. Comstock, 1313. Willeford v. State, 1325, 1327. Willes V. Levett, 416. Willet V. Woodhams, 1545. Williams v. Ayrault, 117. Williams v. Bingley, 1354. Williams v. Boynton, 25. Williams v. Brietling M. Mfg. Co., 884. Williams v. Brown, 81. Williams v. Chicago Exhibition Co., 433, 435, 1484, 1551, 1572. Williams v. Concord Church, 44. Williams v. County Court, 546. Williams v. Davies. 238. Williams r. Davis, 1512, 1564. Williams v. Dutton, 441, 480. Williams v. Green, 394. Williams t\ Hitzie, 148. Williams r. .Jersey, 718. Williams v. Lampkin, 1468. Williams r. Lee, 212. Williams r. Lewis, 1349. Williams r. Mayor. 444, 520, 521. Williams r. McNamara. 6.^)0. Williams r. Mitchell, 1066. Williams r. New York C. R. Co., 613. Williams r. Osborne. 736, 1067. Williams v. Peinny. 441, 1533. TABLE OF CASES CITED. CXXXlll THE REFERENCES "Williams v. Pile, 43, 176, 204. Williams v. Pouns, 1114, 1657. Williams v. Prince of Wales, 26. Williams v. Sadler, 63. Williams v. Smith, 725, 731, 1532. Williams v. Smythe, 942. 943, 987. Williams v. Spence, 1032, 1075. Williams v. Stevens, Adm'r, 1501. Williams v. Stewart, 94, 324. Williams v. Williams, 1157, 1161. Williams v. Wilson, 1357. Williamson v. Carnan, 571, 1448. Williamson v. Raney, 377. Williamson v. Russell, 245, 338. Williamson v. Wilson, 1363. Williamson's Adm'r r. Appleberry, 155. Williamson's Adm'rs v. Hall, 1587. Williamsport W. Co. v. Lycoming G. & W. Co., 856. Williamston & T. R. Co. r. Battle, 612. Wilmarth v. Woodcock, 676, 677, 679. Wilmington S. M. Co. r. Allen, 1546. Wilmington Water Power Co. v. Evans, 807. Wilsey v. Maynard, 169, 173. Wilson V. Baker, 24. Wilson V. Baltimore & P. R. Co., 617. WHson V. Bastable, 173. Wilson V. Board of Commission- ers, 540. Wilson ;;. Boise City, 1649. Wilson V. Butler, 141, 346. Wilson V. Childs, 281. Wilson V. City of Mineral Point, 670. Wilson V. Cohen. 819. Wilson V. Consolidated S. Co., 884, 896. Wilson V. Craige, 1470. Wilson i\ Davis, 204. ARE TO THE PAGES. Wilson r. Haecker, 1610, 1637. Wilson V. Hendricks, 1480. Wilson V. Hill, 26. Wilson V. Hughell, 681. Wilson V. Hyatt, 144. 344, 345. Wilson V. Longendyke, 468. Wilson V. Mace, 1480, 1511, Wilson V. McEvoy, 1636. Wilson V. Miller, 179. Wilson V. Robertson, 258. Wilson V. Rockwell, 666. Wilson V. Sherman, 916, 923. Wilson V. Shipman, 135, 148. Wilson V. Sparkman, 221. Wilson V. Town of Philippi, 441. Wilson V. Weber, 1483, 1636. Wilson V. Wetherherd, 67. Wilson V. Wilson, 1389. Wimberg v. Schwegeman, 372. Wimberly, Ex parte, 1326, 1327, 1435. Wimpy V. Phinizy, 1450. Winans v. Eaton, 883. Winch's Appeal, 1387. Winchell v. City of Waukesha, 774. Winchester v. Grosvenor, 213, 232, 233. 234. Winchester v. Knight, 639. Windisch v. Gussett, 216. Windman v. City of Vincennes, 522, 1266. Windwart v. Allen, 169, 174. Winebrenner /;. Colder. 29?, 309. Winfield v. Bacon. 92. Wing ??. Dodge, 1610. Wing V. Pairhaven, 804. Wingate v. Astoria, 524. Wingate i'. Haywood, 134. Wingfield v. McLure, 176, 179, 1619, Winkler r. Winkler, 43, 44, 567. Winn r. Albert, 23. Winn V. Henderson, 164. CXXXIV TABLE OF CASES CITED. THE REFERENCES Winnipesaukee Association v. Gor- don, 1136, 1138. Winnipiseogee Lake Co. v. Wors- ter, 802. Winship v. Pitts, 629. Winslow V. Jenness, 81, 110. Winslow V. Nayson, 568, 685, 1292, 1439. Winston v. Tennessee & P. R. Co., 1303, 1313, 1314. Winter v. City Council. 43. Winter v. Coulthard, 221. Winters v. Means, 224. Wirt V. Hicks, 885. Wisconsin C. R. Co. v. Smith, 1429. Wisconsin Central R. Co. v. Ash- land Co., 457. Wisconsin Central R. Co. v. Lin- coln Co., 445, 450, 481. Wisconsin M. & F. L Co. r. Bur- ner, 1630. Wisconsin River Improvement Co. V. Lyons, 804. Wise V. Grand Avenue R. Co.. 880. Wisecarver v. Wisecarver, 1630. Wiseman v. Lucksinger, 1295. Wiswell r. First Congregational Church. 56, 1188. Withers r. Denmead, 1484. Witherspoon v. Nickels, 482, 483. Witmer's Appeal, 684, 1396. Witter r. Lyon, 1456, 1457. Witthaus r. Braun, 1084. Wittich V. O'Neal, 1629, 1636. Woerishoffer 7'. North River C. Co., 1198. Wolbert r. Harris, 1350. Wolbert r. Philadelphia, 847. Wolf Lumber Co. v. Brown, 100. Wolf River L. Co. v. Pelican B. Co.. 43. Wolfe V. Burke, 81, 1079, 1082. Wolfe r. Goulard. 1061. Wollensak r. Sargent, 919. Wolverhampton & W. R. Co. v. London & N. W. R. Co., 1098. ARE TO THE PAGES. Womack r. Powers, 111. Wombsell r. Bellasyse, 649. Wong Wai d. Williamson, 1258. Wood ;;. Bangs, 1248, 1249, 1319. Wood V. Beadell, 1545, 1546. Wood V. Braxton, 689. Wood V. Brooklyn, 1252. Wood V. Draper, 441, 546. Wood V. Dwight, 1519, 1657, 1658, Wood v. Macon & B. R. Co., 593. Wood V. McGrath, 702. Wood t'. Millspaugh, 1656. Wood V. Rowcliffe, 429, 1534. Wood V. Stanberry, 227. Wood i\ Sutcliffe, 718, 763. Wood V. Winings, 325. Wooden v. Wooden, 43, 46. Woodfin V. Beach, 1499. Woodhull V. Neafie, 1475. Woodley r. Boddington, 1445. Woodman v. Attorney-General, 463. Woodman r. Ely, 451. Woodman v. Kilbourn Manufactur- ing Co., 805. Woodmanse & H. Mfg. Co. v. Wil- liams, 909. Woodruff r. Fisher, 19, 1562. Woodruff r. Lockerley. 830. Woodruff r. Ritter, 1506. Woodruff r. Wallace, 4. Woods r. Gary, 1330. Woods r. Kirkland, 688. Woods r. Monroe, 75, 76, 108, 389. Woodson P. Barrett, 230, 231, 1100. Woodson r. Johns, 1617. Woodward r. Earl of Lincoln, 1425, 1446. I Woodward r. Gyles, 1121, 1122. Woodward r. King, 1432. Woodward r. Lazar, 1051. Woodward r. Schatzell, 1356. Woodward r. Woodward. 47. Woodworth v. Edwards, 895, 916, 923. Woodworth v. Hall, 895, 915, 92L TABLE OF CASES CITED. CXXXV THE REFERENCES Woodworth v. Rogers, 11, 914, 922, 929, 1568. Woodworth r. Van Buskerk, 94. Woodworth ;;. Weed, 916. Woodworth V. Wilson, 922. Wooifolk V. Woolfolk, 1578, 1654. Woolsey v. Dodge, 860. Woolsey v. Judd, 934, 966. Woolsey v. N. Y, El. R. Co., 564. Wooten V. Smith, 1478, 1569. Worcester v. Truman, 1460, 1465. Wordehoff v. Evers, 226. Worden v. California Fig Syrup Co., 1079. Workingmen's Amalgamated Coun- cil V. United States, 1645. World's Columbian Exposition v. United States, 35, 1118. Worrell v. First Presbyterian Church, 306. Worth Mfg. Co. V. Bingham, 1668. Worthen r. Badgett, 468, 471. Worthington v. Lee, 129. Worthington i\ Waring, 29, 1416. Worthy, y. Tate, 342. Wortman v. Skinner, 1368. Wotherspoou r. Currie, 1023. Wray v. Chandler, 202. Wren v. Cosmopolitan Gas Co., 967. Wright V. Atkyns, 646. Wright V. Bishop, 1301, 1302. Wright V. Eaton, 134. Wright V. Fleming, 70, 101. Wright V. Grist, 628. Wright V. MacFarlane, 1663. Wright V. Moore, 762. Wright V. Southwestern R. Co., 496. Wright's Heirs v. Christy's Heirs, 319. Wrisley Co. v. Iowa Soap Co., 1023, 1028, 1030, 1070, 1074, 1079. Wrixon r. Condran, 630. Wroe V. Clayton, 1573. Wullenwaber v. Dunigan, 1307. ARE TO THE PAGES. Wyatt i\ Barnard, 973. Wyckoff V, Cochran, 1564. Wyckoff ;;. Victor S. M. Co., 1095. Wykes v. Ringleberg, 812. Wynn v. Wilson, 213. Wynne v. Newborough, 1526. Wynstanley r. Lee, 825. Xenia Real Estate Co. 1107. Ximenes r. Franco, 22. Macy, Yager v. Merkle, 427. Yale V. Baum, 1597. Yale V. Moore, 1477. Yancy v. Fenwick, 175. Yates V. City of Milwaukee, 505. Yates V. Village of Batavia, 103. Yeager v. Manning, 809, 846, 847, 850, 85L Yick Wo V. Crowley, 124. Yocum V. Bank, 443, 472. Yocum V. Moore, 1657. Yonge /•. McCormick, 360, 361, 362, 370, 373. Yonge V. Shepperd, 151. York V. Kile, 157. Young V. Campbell, 18, 1305. Young V. Commissioners of High- ways, 715. Young i\ Davis, 167. Young r. Frier, 152, 1350, 1397. Young r. Grundy, 1652, 1658. Young r. Lippman, 889,. 892. Young V. Macrae, 1021. Young V. Rollins, 1439. Young V. Rondout & K. G. L. Co., 1642. Young 'V. Sigler, 257. Young V. Town of Henderson. 512. Youngblood r. Schamp. 51, 1540, 1545. Youngblood r. Sexton, 482. CXXXVl TABLE OF CASES CITED. THE REFERENCES ARE TO THE PAGES. Youngs c. Ransom, 304. Yovatt v. Winyard, 27, 1067. Yuengling v. Johnson, 879, 1550. 913, Zabriskie v. 784. z Jersey & B. R. Co., Zabriskie v. Vreeland, 1516. Zanliizer v. Hefner, 142, 143. Zehnder . v. Barber Asphalt Co., 472, 527, 531. Zeigler i\ Beasley, 78. Zinn V. Dawson, 237. Zoll r. Campbell, 1475. Zorger v. Township of Rapids, 539. THE LAW OF INJUNCTIONS. CHAPTER I. OF THE DEFINITION AND NATURE OF THE REMEDY. J 1. Definition. 2. Mandatory injunctions; mandamus distinguished. 3. Interlocutory and perpetual injunctions; temporary restraining orders. 4. Object of interlocutory injunction. 5. Interlocutory injunction not decisive upon the merits. 5a. Interlocutory injunction should preserve the status quo. 6. Common and special injunctions. 7. Bill should show some primary equity; plaintiff must not be guilty of laches. 8. Relief not usually granted when legal right in doubt. 9. Substantial injury must be shown; exception; relief not granted to encourage litigation, nor where it would operate inequit- ably. 10. Utmost care necessary; effect of acquiescence. 10a. Mere acquiescence or delay as defense. 11. Right to preliminary injunction discretionary; plaintiff may be questioned as to motives; no concealment tolerated. 12. Prevention of multiplicity of suits. 13. Relative convenience and inconvenience balanced. 14. Possession rarely interfered with by injunction. 15. Discretion not controlled by mandamus: courts of co-ordinate jurisdiction. 16. Not granted against covenant, or offer to perform. 17. When injunction operative; official notice not necessary. 18. Threatened injury sufficient; difficulty in obeying injunction no defense; insolvency not alone sufficient. 19. Disclosure of secrets enjoined. 20. Criminal acts not enjoined. 20a. When relief granted though acts are criminal. 206. No relief against injury to one's feelings; nor for protection of "right of privacy," or of political rights. 21. Fraud as ground for relief. 1 1 2 INJUNCTIONS. [chap. I. §22. Irreparable injury must be clearly sbown. 23. Injunction not corrective of past injuries. 24. Relief in cases of trust. 25. Jurisdiction cautiously exercised against trustees. 26. Right of petition rarely enjoined. 27. Foreign sovereign entitled to protection. 28. Injunction refused where legal remedy adequate. 29. Statutory remedy a bar; when objection of legal remedy to be taken. 30. Remedy at law defined. 31. How injunction granted. 32. When new suit unnecessary. 33. Not granted against persons beyond jurisdiction; when granted against persons within the jurisdiction though the res is beyond. 34. Positive averments of fact necessary. 35. Allegations on information and belief insufficient. 36. When verification dispensed with. 37. Precision required in writ; form not essential; no objection that case is without precedent. 38. Injunction may be allowed though not prayed. 39. When injunction revived or reinstated. 40. New injunction not allowed on same equities. 41. Right to relief on amended bill. 42. When jurisdiction exercised by courts of last resort. 43. Restrictions upon jurisdiction of the courts; prohibition; powers of United States district judge. 44. Supreme Court of Judicature Act in England. §1. Definition. A writ of injunction may be defined aa a judicial process, operating i7i personam, and requiring the person to whom it is directed to do or refrain from doing a particular thing.^ In its broadest sense the process is 1 McDonogh v. Calloway, 7 Rob. p. 307. Story defines it as "a (La.), 442; Childress v. Perkins, judicial process whereby a party is Cooke (Tenn.), 87. Jeremy defines required to do a particular thing, an injunction to be "a writ framed or to refrain from doing a particu- according to the circumstances of lar thing, according to the exi- the case, commanding an act which gency of the writ." 2 Story's Eq., this court regards essential to jus- § 861. Again, it has been said to tice, or restraining an act which be "a prohibitory writ, granted by It esteems contrary to equity and a court of equity (in the nature of good conscience." Jeremy's Eq., an interdictitm in the civil law). CHAP. I.] GENERAL NATURE OF WRIT. 3 restorative as well as preventive, and it may be used both In the enforcement of rights and in the prevention of wrongs.^ In general, however, it is used to prevent future injury rather than to afford redress for wrongs already committed, and it is therefore to be regarded more as a preventive than as a remedial process.^ If the injury be already committed, the writ can have no operation to correct it, and equity will not interfere for purposes of punishment, or to compel persons to do right, but only to prevent them from doing wrong.* Nor will a court of equity lend its aid by injunction for the enforcement of right or the prevention of wrong in the abstract, and unconnected with any injury or damage to the person seeking the relief.^ § 2. Mandatory injunctions ; mandamus distinguished. In- junctions are known as mandatory or preventive, according as they command defendant to do or to refrain from doing a particular thing. While the jurisdiction of equity by way of ■ mandatory injunction is rarely exercised, and while its existence has even been questioned, it is nevertheless too and which may be obtained in a 3 Attorney-General v. New Jer- variety of cases to restrain the sey R. R. & T. Co., 2 Green Ch., adverse party in the suit from 136; Washington University v. committing any acts of violation Green, 1 Md. Ch., 97; Sherman v. of the plaintiff's rights, as to stay Clark, 4 Nev., 138; Blakemore v. proceedings at law, to restrain the Glamorganshire, 1 Myl. & K., 154. negotiation of notes and other The remedy for injuries already securities, to restrain from com- committed, though sometimes mitting waste or nuisance, or from given as an incident to an injunc- infringing a patent or copyright." tion, is only allowed where a suffi- Burr. Law Diet. So it has been cient showing for the injunction is defined as "a prohibitory writ, made out and the injury has specially prayed for by a bill, in resulted from the act enjoined, which the plaintiff's title is set Sherman v. Clark, 4 Nev., 138. forth, restraining a person from committing or doing an act (other than criminal acts) which appears to be against equity and con- science." Bouv. Law Diet. 2 McDonogh v. Calloway, 7 Rob. ^ Goodrich v. Moore, 2 Minn., 61. (La.), 442. 4 Attorney-General v. New Jer- sey R. R. & T. Co., 2 Green Ch., 136; Bosley v. Susquehanna Canal 3 Bland, 63. INJUNCTIONS. [chap. I. firmly established to admit of doubt.*' Mandatory injunc- tions are seldom allowed before a final hearing/ although they may be granted on interlocutory applications.* And while a court of equity is always reluctant to grant a mandatory injunction upon an interlocutory application and before final hearing, it may yet do so in an extreme case when the right is clearly established and the invasion of the right results in 6 Garretson v. Cole, 1 Har. & J., 370; Krehl v. Burrell, 7 Ch. D., 551; Robinson v. Byron, 1 Bro. C. C, 588; Hervey v. Smith, 1 Kay & J., 392; Martyr v. Lawrence, 2 De Gex, J. & S., 261; Home & Colo- nial Stores V. Colls (1902), 1 Ch., 302; Corning v. Troy Factory, 40 N. Y., 191, affirming S. C, 34 Barb., 485, 39 Barb., 311; Foot v. Bron- son, 4 Lans., 47; Whitecar v. Michenor, 37 N. J. Eq., 6; Hunt v. Sain, 181 111., 372, 54 N. E., 970; Brauns v. Glesige, 130 Ind., 167, 29 N. E., 1061; Sproat v. Durland, 2 Okla., 24, 35 Pac, 682, 886; Woodruff V. Wallace, 3 Okla., 355, 41 Pac, 357; Calhoun v. McCor- nack, 7 Okla., 347, 54 Pac, 493; Glover v. Swartz, 8 Okla., 642, 58 Pac, 943; McDonald v. Brady, 9 Okla., 660, 60 Pac, 509; Battalion Westerly Rifles v. Swan, 22 R. I., 333, 47 Atl., 1090, 84 Am. St. Rep.. 849; Condon v. Maloney, 108 Tenn., 82, 65 S. W., 871. And see obser- vations of Lord .Justice Turner in Durrell v. Pritchard, L. R. 1 Ch., 244. In Battalion Westerly Rifles V. Swan, supra, a mandatory in- junction was granted to compel the defendant to surrender to plaintiff chattels of a peculiar and (-special value not ascertainable in money. 7 Gale V. Abbot, 8 .Jur. N. S.. 987; Bailey v. Schnitzius, 45 N. J. Eq.. 178, 16 Atl., 680; Hagen v. Beth, 118 Cal., 330; 50 Pac, 425. And see Washington Unfversity v. Green, 1 Md. Ch., 97; Rogers L. & M. Works V. Erie R. Co., 5 C. E. Green, 379; Audenried v. Philadel- phia & R. R. Co.. 68 Pa. St., 370; Herbert v. Pennsylvania R. Co., 43 N. J. Eq., 21. 10 Atl.. 872; Dela- ware, L. & W. R. Co. V. Central S. T. & T. Co., 43 N. J. Eq., 77, 10 Atl., 602; Black v. Good Intent Tow-boat Co., 31 La. An., 497. « Robinson v. Byron, 1 Bro. C. C, 588; Hervey v. Smith, 1 Kay & J., 392; Von Joel v. Hornsey (1895), 2 Ch., 774, 65 L. J. N. S. Ch., 102; New Iberia Rice Milling Co. V. Romero, 105 La., 439, 29 So., 876; Central Trust Co. v. Moran, 56 Minn., 188, 57 N. W., 471, 29 L. R. A., 212; Reeves v. Oliver, 3 Okla., 62, 41 Pac, 353; Hen- derson r. Ogden C. R. Co., 7 Utah, 199, 26 Pac, 1119; Toledo, A. A. & N. M. Ry. Co. ?■. Pennsylvania Co., 54 Fed., 730; Same r. Same, lb., 746; Chattanooga Terminal Ry. V. Felton, 69 Fed., 273. In Toledo, A. A. & N. M. Ry. Co. r. Pennsylvania Co., supra, at page 741, .Judge Taft uses the follow- ing language: "The office of a preliminary injunction is to pre- serve the status quo until, upon CHAr. I.J GEXEKAL NATUKE OE WRIT. 5 serious injury." And where, upon an interlocutory applica- tion, it is clear that the plaintiff will be entitled to a final mandatory injunction, an interlocutory mandatory injunction may be allowed.'" And when there is a wilful and unlawful invasion of plaintiff's right, against his protest and remon- strance, the injury being a continuing one, a mandatory injunction may be granted in the first instance.^ ^ It is to be observed, however, that courts of equity rarely interfere to command the doing of a positive act, but the same result is obtained by framing the injunction in an indirect form and prohibiting the defendant from doing the reverse of what he is desired to do.'- Even then the jurisdiction is exercised with extreme caution, and is confined to cases where the courts of law are unable to afford adequate re- dress, or where the injury can not be compensated in damages.'^ And in determining whether to grant relief by final hearing, the court may Co., 42 N. J. Eq., 141, 7 Atl., 851; grant full relief. Generally this Pokegama Lumber Co. v. Klamath car be accomplished by an injunc- Lumber Co., 86 Fed., 538. tion prohibitory in form, but it 12 Lane v. Newdigate, 10 Ves., 192; sometimes happens that the status Cooke v. Chilcott, 3 Ch. D., 694; quo is a condition not of rest, but Mexborough v. Bower, 7 Beav., cf action, and the condition of 127; Central Trust Co. v. Moran, rest is exactly what will inflict 56 Minn., 188, 57 N. W., 471, 29 L. the Irreparable injury upon com- R. A. 212; Henderson v. Ogden C. plainaut, which he appeals to a R. Co., 7 Utah, 199, 26 Pac, 1119; court of equity to protect him Sedalia Brewing Co. v. Sedalia W. from. In such a case courts of W. Co., 34 Mo. App., 49. See also equity issue mandatory writs be- Cole Co. v. Virginia Co., 1 Sawy., fore the case is heard on its mer- 470; S. C, lb., 685; Reeves r. Oli- its." See, contra, Catholicon Hot ver, 3 Okla., 62, 41 Pac, 353. But Springs Co. v. Ferguson, 7 S. Dak., see, contra, Akrill v. Selden, 1 503, 64 N. W., 539. Barb., 316; Jackson v. Normanby 9 Whitecar v. Michenor, 37 N. Brick Co., (1899) 1 Ch., 438. J- Eq., 6. 1:'. Isenberg v. East India H. E. 10 Central Trust Co. V. Moran, 56 Co., 33 L. J. Ch., 392; Deere v. Minn., 188, 57 N. W. 471. 29 L. R. Guest, 1 Myl. & Cr., 516; Gardner A. 212. V. Stroever, 81 Cal., 148, 22 Pac, 11 Broome v. New York & N. J. 483, 6 L. R. A., 90. 6 INJUNCTIONS. [chap. I. way of mandatory injunction courts of equity will take into consideration the relative convenience and inconvenience which would result to the parties from granting or withhold- ing the relief, and will be governed accordingly." Although in states where the distinction between law and equity has been abolished, a mandatory injunction and a writ of manda- mus can not be distinguished, yet in those jurisdictions where the long established distinction still prevails, prohibitory injunction and mandamus are not correlative writs, the one restraining action where the other compels it and both applicable to the same subject matter. Injunctions are granted only by courts of equity and only in cases of equi- table cognizance according to the established principles of equity jurisdiction, while writs of mandamus emanate only from courts of law in cases which are of a purely legal nature. ^^ § 3. Interlocutory and perpetual injunctions ; temporary restraining orders. With reference to their duration, injunc- tions are known as interlocutory and perpetual. Interlocu- tory or preliminary injunctions are such as are granted at any time before final hearing, generally upon the filing of the bill, and continue until the coming in of the answer, or until a hearing upon the merits, or the further order of the court. Perpetual injunctions are granted only at a final hearing upon the merits, and usually form a part of the final decree. Indeed, a perpetual injunction is in effect a decree of the court whereby defendant is perpetually inhibited from the assertion of an assumed right, or perpetually restrained from the commission of an act which would be contrary to equity 14 Isenberg v. East India H. E. with a covenant to repair the de- Co., 33 L. .7. Ch., 392; Flippin v. mised premises. Jarvis v. Hen- Knaffle, 2 Tenn. Ch., 238. And a wood, 10 C. E. Green, 460. mandatory injunction has been i"' Fletcher v. Tuttle, 151 111., 41, refused, the purpose of which was 37 N. E., 683, 25 L. R. A., 143. to compel a landlord to comply CHAP. I.] GENERAL NATURE OF WRIT, 7 and good conscience.^ ^ While, therefore, an interlocutory injunction, being merely provisional in its nature, does not conclude a right, a perpetual injunction, being a final de- cree upon a full hearing, is conclusive upon all parties in i interest. A temporary restraining order is distinguished ! from an interlocutory injunction in that it is ordinarily , granted merely pending the hearing of a motion for a tern- ; porary injunction and its life ceases with the disposition of • that motion and without further order of the court, while, as we have seen, an interlocutory injunction is usually granted until the coming in of the answer or until the final hearing of the cause and stands as a binding restraint until rescinded | by the further action of the court. ^^ „-72, 37 Atl., 90; Dickson v. Dows, its discretion in granting injunc- 11 N. Dak., 404, 92 N. W., 797; tions, at least where no very spe- Minneapolis & S. L. R. Co. v. C, cial circumstances occur, is. that M. & St. P. R. R. Co., 116 Iowa, 681, only snch a restraint shall be im- 88 N. W., 1082; Southern Pac. R. posed 3S may suffice to stop the Co. V. City of Oakland, 58 Fed., misciilef complained of where it is 50; Calvert v. State, 34 Neb., 616, to .slay a further injury, to keep 52 N. W., 687. things as they are for the present." K'Blakemore v. Glamorganshire, ^'» Fritz v. Erie City P. Ry., 155 etc., 1 Myl. & K.. 154. The princi- Pa. St., 472, 26 Atl., 653; Smith v. pie upon which the jurisdiction is Reading C. P. Ry., 156 Pa. St., 5, exercised is clearly stated in this 26 Atl., 779. case by Brougham, chancellor, as -> Gross v. Wieand, 151 Pa. St., follows: "The leading principle, 630, 25 Atl.. 50. then, on which I proceed in deal- CHAP. I.J GENERAL NATURE OF AVRIT. 9 having the means of formmg a final opinion as to such rights. And in order to sustain an injunction for the protec- tion of property pendente lite it is not necessary to decide in favor of plaintiff upon the merits, nor is it necessary that he should present such a case as will certainly entitle him to a decree upon the final hearing, since he may be entitled to an interlocutory injunction, although his right to the relief prayed may ultimately fail.-- Nor is the decision of the court in granting or refusing a preliminary injunction conclusive upon either the court or parties on the subsequent disposition of the cause by final decree.-^ The court will not, however, upon an application for an interlocutory injunction, shut its eyes to the question of the probability of plaintiff* ultimately establishing his demand, nor will it by injunction disturb defendant in the exercise of a legal right without a probability that plaintiff may finally maintain his right as against that of the defendant.^* And where the question in- volved is merely of a pecuniary nature, plaintiff' will not be allowed an interlocutory injunction unless he can satisfy the court that there is a probability that his bill will not be dismissed upon the hearing.^^ § 5 a. Interlocutory injunction should preserve the status quo. Since the object of a preliminary injunction is to pre- serve the status quo, the court will not grant such an order where its effect would be to change the status. Thus, where the plaintiff seeks to enjoin the defendant from interfering 22 Great Western R. Co. v. Bir- Asheville, 109 N. C, 688, 14 S. E.. mingham R. Co., 2 Ph., 597; Flip- 316. pin V. Knaffle, 2 Tenn. Cli., 238; -'.t Andrae v. Redfield, 12 Blatch.. Helm V. Gilroy, 20 Ore., 517, 26 407. Pac, 851; United States E. L. Co. 24 Clayton r. Attorney-General, 1 V. Metropolitan Club, 6 App. D. C, Coop. t. Cottenham, 97; Wilkinson 536; Buskirk v. King, 18 C. C. A., v. Dobbie, 12 Blatch., 298. 418, 72 Fed., 22; Jensen v. Norton, 2-, Attorney-General v. Mayor, 5 12 C. C. A.. 608, 64 Fed., 662. And De G., M. & G., 52, affirming S. C . see Asheville St. Ry. Co. v. City of Kay, 268. 10 INJUNCTIONS. [chap. I. with acts about to be done by the plaintiff against the objec- tion of the defendant, a preliminary injunction restraining such interference is erroneous since its effect is to destroy the existing condition of the subject-matter of the suit by permitting the doing of affirmative acts by the plaintiff in advance of the final determination of his right to do them.^^ And in such case the court may compel the plaintiff who, after having tied defendant's hands, has thus changed the status of affairs, to restore them to the same condition in which they were before the injunction was granted.-'^ And by the status quo which will be preserved by preliminary injunction is meant the last actual, peaceable, noncontested condition which preceded the pending controversy, and equity will not permit a wrong-doer to shelter himself behind a suddenly and secretly changed status, although he suc- ceeded in making the change before the hand of the chan- cellor has actually reached him.^^ And where, before the granting of the injunction, the defendant has thus changed the condition of things, the court may not only restrain further action by him, but may also, by preliminary manda- tory injunction, compel him to restore the subject-matter of the suit to its former condition. And in so doing the court acts without any regard to the ultimate merits of the con- troversy.^^ § 6. Common and special injunctions. Interlocutory injunctions are also distinguished as common and special, although in modern times the distinction is of little practical importance. The eoinmon injunction is granted in aid of or secondary to another equity, as in the case of an injunction to a judgment at law, and is frequent!}^ issued as of course upon 20 Chester Traction Co. v. Phila- S. E. 783, the court entertained a delphia W. & B. R. Co., 174 Pa. St., cross-bill restraining further ac- 284. 34 Atl., 619. tion by complainant. 27 Lake Shore & M. S. Ry. Co. v. -'« Williams, J., in Fredericks v. Taylor. 134 111., 603, 25 N. E., 588. Huber, 180 Pa. St., 572, 37 Atl., 00. In Johnson v. Hall. 83 Ga., 281, 9 20 Daniel v. Ferguson, (1891) 2 CHAP. I.] GENERAL NATURE OF WRIT. 11 the coming in of the bill stating a sufficient case for the relief, without notice to the opposite party. Special injunctions are granted for the prevention of irreparable injury, as in cases of waste, where the preventive aid of equity is the ultimate and only relief sought. They are generally granted upon notice to the defendant, as in cases of injunction for the infringement of patents, and are not allowed as of course upon the coming in of the bill.^^ Injunctions in the courts of the United States, being usually granted only upon notice to the opposite party, are regarded as falling within the class of special injunctions, and when resisted under the notice they will not be granted except upon a strong showing of irreparable injury.^^ § 7. Bill should show some primary equity; plaintiff must not be guilty of laches. Except in cases of special injunctions to stay waste or prevent other irreparable injury, the bill should generally show some primary equity in aid of which the injunction is asked, and the relief is granted as ancillary to or in support of the primary equity whose enforcement is thus sought.^2 And it is incumbent upon the party seeking relief by interlocutory injunction to show some clear legal or equita- ble rights,^^ and a well grounded apprehension of immediate injury to those rights.^'* So it is requisite that a complainant seeking the aid of a court of equity by injunction shall not Ch., 27; Von Joel v. Hornsey, si Perry v. Parker, 1 Wooclb. & (1895) 2 Ch., 774, 65 L. J. N. S. M., 280. Ch., 102. 32 Patterson v. Miller, 4 Jones 30 See, as to distinction between Eq., 451 ; Washington v. Emery, common and special injunctions, lb., 29; Scofield v. Bokkelen, 5 Woodworth v. Rogers, 3 Woodb. Jones Eq., 342; McRae v. Atlantic & M., 135; Purnell v. Daniel, 8 & N. C. R. Co., lb., 395. Ired. Eq., 9; Troy v. Norment, 2 s.; Scott t;. Burton, 2 Ashm., 312; Jones Eq., 318; Peterson v. McGinnis v. Friedman, 2 Idaho, Matthis, 3 Jones Eq., 31; Chad- 393, 17 Pac, 635. well V. Jordan, 2 Tenn. Ch., 635; s* Kean v. Colt, 1 Halst. Ch., 365. Patterson v. Gordon, 3 Tenn. Ch., For an interesting discussion of the 18. But see Anderson v. Noble, 1 doctrine of "irreparable injury" Drew., 143; Magnay v. Mines Roy- as applied to applications for relief al Co., 3 Drew., 130. by interlocutory injunction, see 12 INJUNCTIONS. [chap. I. have been guilty of laches or delay in the assertion of his rights; for, while delay may not amount to proof of acquies- cence in the wrong for which he seeks redress, it may yet suffice to prevent his obtaining relief by injunction.^^. And where, in addition to plaintiff's delay in pressing his suit to final hearing, it appears that the benefit resulting to him from the granting of a final injunction will be entirely dis- proportionate to the injury to the defendant and to the public resulting therefrom, the relief will be denied and he will be remitted to his legal remedy for the vindication of his rights.^^ And especially will laches constitute a bar to equitable relief by injunction where public interests would be prejudiced by the granting of the writ and in such case a very slight delay upon the part of the suitor will deprive him of the right to invoke the aid of the court.^" But where, although the plaintiff has suffered a long time to elapse before finally seeking the aid of a court of equity, he has during all this time frequently protested to the defendant and urged him to cease doing the acts sought to be enjoined, the doctrine of laches does not apply and such delay will not constitute a bar to the interposition of the court by injunction.^s. § 8. Relief not usually granted when legal right in doubt. The writ of injunction, being largely a preventive remedy, will not ordinarily be granted where the parties are in dis- pute concerning their legal rights, until the right is estab- lished at law.-**^ And if the right for which protection is sought Commonwealth v. Pittsburgh & C. "•'■ Becker v. L. & M. fcj. Ry. Co., R. Co., 24 Pa. St., 159. 188 Pa. St., 484, 41 Atl., 612; Fisk :(•' Dulin V. Caldwell, 28 Ga., 117; v. City of Hartford, 70 Conn.. 720, Attorney-General v. Sheffield G. C. 40 All., 906, 66 Am. St. Rep., 147. Co., 3 De Gex, M. & G., 304; Mun- ■fT Keeling v. P., V.'& C. R. Co., cey V. Joest, 74 Ind., 409; Heilman 205 Pa. St., 31, 54 Atl., 485; Clark V. L. & A. S. R. Co., 175 Pa. St., v. C. & A. I. & I. Co., 45 Neb., 798, 188, 34 Atl., 637; Nesinger v. C. & 64 N. W., 239. H. T. Co., 203 Pa. St., 265, 52 Atl., '■'^ Lonsdale Co. v. City of Woon- 197; Stewart Wire Co. v. L. C. & socket, 21 R. I.. 498, 44 Atl.. 929. N. Co., 203 Pa. St., 474, 53 All.. 352. "' Harl v. Mayor of Albany. 3 CHAP. J.J GENERAL NATURE OF WR[T. 13 is dependent upon disputed questions of law which have never been settled by the courts of the state, and concerning which there is an actual and existing- dispute, equity will withhold relief until the questions of law have been determined by the proper courts.^*^ Where, however, the parties are at issue upon a question of legal right and it is necessary to preserve their rights in statu quo until the determination of the con- troversy, an interlocutory injunction may properly be allowed.-*^ In such cases courts of equit}^ do not assume juris- diction to dispose of the legal rights in controversy, but confine themselves to protecting those rights as they then are, pend- ing an adjudication upon the legal questions involved.^- And it is proper to accompany an injunction granted under such Paige, 213; Mammoth Vein Co.'s Appeal, 54 Pa. St., 183. And see Perry v. Pa-ker, 1 Woodb. & M., 280; Chesapeake, O. & C. Co. v. Young, 3 Md., 480; Mayor v. Car- diff Water-works Co., 4 De Gex & J., 596; Muir v. Howell, 37 N. J. Eq., 39. In Mammoth Vein Coal Co.'s Appeal, 54 Pa. St., 183, which was a bill for an injunction where parties claimed under different leases of the same coal veins, the relief was denied, the court, Thompson, J., saying: "It ought not to be forgotten that a prelimi- nary injunction is a restrictive or prohibitory process, designed 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 foundation for such an order being, in addition to cases of the invasion of unques- tioned rights, the prevention of ir- reparable mischief or injury. As a preliminary injunction is, in its operation, somewhat like judg- ment and execution before trial, it is only to be resorted to from a pressing necessity, to avoid injuri- ous consequences which can not be repaired under any standard of compensation. It is therefore a preventive remedy only." 10 Stevens v. Paterson & N. R. Co., 5 C. E. Green, 126; Kigbee v. Camden & A. R. & T. Co., lb., 435; Citizens Coach Co. v. Camden Horse R. Co., 29 N. J. Eq. (2 Stew.), 299; Long Branch Com- missioners V. West End R. Co., Xb., 567. See also Hackensack Im- provement Commission iK New Jer- sey Midland R. Co., 7 C. E. Green, 94; Newark Aqueduct Board v. City of Passaic, 45 N. J. Eq., 393, 18 Atl., 106, affirmed in 46 N. J. Eq., 552, 22 Atl., 55; Pennsylvania R. Co. r. N. D. & N. J. J. C. R. Co., 53 N. J. Eq., 178, 32 Atl., 220. 11 Harman v. Jones, 1 Cr. & Ph., 299; Lowndes t'. Settle, 33 L. J. Ch., 451. ■i- Harman t\ Jones, 1 Cr. & Ph., 299. 14 INJUNCTIONS. [chap. I. circumstances with a provision for a speedy investigation at law of the questions involved in dispute.'*^ § 9. Substantial injury must be shown; exception; relief not granted to encourage litigation, nor where it would operate inequitably. Substantial and positive injury must always be made to appear to the satisfaction of a court of equity before it will grant an injunction, and acts which, though irregular and unauthorized, can have no injurious result, constitute no ground for the relief. ^^ But where the act complained of is such that by its repetition or continuance it may become the foundation of adverse rights, equity may interfere by injunction, although no actual or substantial injury be shown.^^ But the relief in such case should be granted only to the extent that is necessary for the protection and vindi- cation of the plaintiff's rights.'^^ And it is a fatal objection to granting an injunction for the protection of property pend- ing litigation that the party seeking the relief has no title to or interest in the property, and no claim to the ultimate relief sought by the litigation.'*''' Nor will relief by injunction be granted where it would operate inequitably or contrary to 43 Harman v. Jones, 1 Cr. & Ph., Port Arthur C. & D. Co., 31 C. C. 299. A., 99, 87 Fed., 512; Ulbricht v. 44 Rogers v. Michigan S. & N. I Eufaula Water Co. 86 Ala., 587, 6 R. Co., 28 Barb., 539; Head v. So., 78, 4 L. R. A., 572, 11 Am. Si. James, 13 Wis., 641; Bank of Cali- Rep., 72. And see Gilfillan v. fornia v. Fresno C. & I. Co., 53 Cal., Grier, 145 Pa. St., 317, 22 Atl., 593. 201; Atlantic City W. W. Co. v. -ir, Amsterdam Knitting Co. v. Consumers W. Co., 44 N. J. Eq., Dean, 162 N. Y., 278, 56 N. E., 757; 427; Reemelin v. Mosby, 47 Ohio Walker v. Emerson, 89 Cal., 456,26 St., 570, 26 N. E., 717; Adler v. Pac, 968. Met. El. R. Co., 138 N. Y., 173, 33 N. 46 Ulbricht v. Eufaula Water Co., E., 935; Dana v. Craddock, 66 N. 86 Ala., 587, 6 So., 78, 4 L. R. A., H., 593, 32 Atl., 757; Christian v. 572, 11 Am. St. Rep., 72; dictum City of St. Louis, 127 Mo., 109, 29 in Franklin v. Pollard Mill Co., 88 S. W. 996; Bobins v. Latham, 134 Ala., 318, 6 So., 685. Mo., 466, 36 S. W., 33; Barnard v. 47 state v. MoGlynn, 20 Cal., 233. Commissioners, 172 111., 391, 50 N. See also O'Brien v. O'Connell, 7 E. 120; McFadden v. Owens, 54 Hun, 228. Ark., 118, 15 S. W., 84; Davis v. CHAP. I.] GENERAL NATURE OF WRIT, 15 the real justice of the case.'** And in no event will an injunc- tion be granted whose effect would be to encourage litigation and a multiplicity of suits, thereby retarding instead of pro- moting justice.*^ Nor can a suitor invoke the aid of a court of equity to assist him in carrying on an unlawful business.^*^ § 10. Utmost care necessary; effect of acquiescence. Inter- locutory injunctions being often sought for the purpose of harassing and annoying defendants, the utmost care should be observed in the exercise of the jurisdiction, and the relief should only be allow^ed upon a clear necessity being shown of afford- ing immediate protection to some right or interest of the party complaining w^iich would otherwise be seriously injured or impaired.^i And where the plaintiff will suffer no immediate injury from the acts complained of and the injury, if any, is of such a nature that it can be as easily remedied upon final hearing, a preliminary injunction is properly denied.^- And where a state of affairs connected with the property touching which an injunction is sought has remained undisturbed for a long period of years, and is such a condition of things as will require an injunction as the ultimate relief in case complain- ant succeeds in his cause, a preliminary injunction will be withheld, no alteration or change being shown as threatened or impending.^3 And it may be asserted as a general rule that long acquiescence on the part of plaintiff' in a state of things which he afterwards seeks to enjoin w411 prevent him from obtaining relief by interlocutory injunction,^* even though it 48 Troy & Boston R. R. Co. v. B., si Osborn v. Taylor, 5 Paige, 515. H. T. & W. R. Co., 86 N. Y., 107; See Beebe v. Guinault, 29 La. An., Mott V. Underwood, 148 N. Y., 463. 795. 42 N. E., 1048, 51 Am. St. Rep., C2 Rend v. Venture Oil Co., 48 711; Rogers v. O'Brien, 153 N. Y., Fed., 248. 357, 47 N. E., 456; Bowie v. Smith, ss Society v. Holsman, 1 Halst. 97 Md., 326, 35 Atl., 625. Ch., 126. 49 Endicott v. Mathis, 1 Stockt., s* Great Western R. Co. v. Ox- 110. ford R. Co., 3 De G., M. & G., 341; 50 Portsmouth Brew. Co. v. P. B. Ocean City Assn. v. Schurch, 57 N. & B. Co., 67 N. H., 433, 30 Atl., 346. J- Eq., 268, 41 Atl., 914; Keyes v. 16 INJUNCTIONS. [chap. I. may not be sufficient to deprive him of injunctive relief upon the final hearing. ^^ j\j^^ vi^here plaintijff has been guilty of long delay in asserting his rights, while a final hearing may be had in comparatively a short time, a preliminary injunction should be denied.^*^ And it is held that the acquiescence which will bar relief must be such as proves plaintiff's assent to the acts complained of, and to the injuries which may reasonably be anticipated to flow from such acts.^'^ § 10 a. Mere acquiescence or delay as defense. It is to be observed that the doctrine of laches or acquiescence as a defense to actions for injunctions, when unaccompanied by circumstances which would create an estoppel, is limited to cases of an equitable nature exclusively or to those in which the legal right in aid of which the injunction is sought has been lost by prescription or limitation; and where the legal right still exists, no period of inaction or delay merely, when unaccompanied by any of the elements of an estoppel, will con- stitute a bar to equitable relief unless continued so long and under such circumstances as to bar the right itself.^^ ^ 11. Right to preliminary injunction discretionary; plain- tiff may be questioned as to motives ; no concealment tolerated. The right to a preliminary injunction is not ex deblto justitiae, but the application is addressed to the sound discre- tion of the court, to be guided according to the circumstances of the particular case.^^ Hence it is the right and duty of the Pueblo S. & R. Co., 31 Fed., 560; r,8 Menendez v. Holt, 128 U. S.. Waite V. Chichester Chair Co., 45 514, 9 Sup. Ct. Rep., 143; Galway v. Fed., 258; Price v. Joliet Steel Co., M. E. R. Co., 128 N. Y., 132, 28 N. 46 Fed., 107; Blakey v. Kurtz, 78 E., 479; Ackerman v. True, 175 N. Fed., 368. But see Lux v. Haggin, Y., 353, 67 N. E., 629; Coombs r. S. 69 Cal., 255. L. & F. D. Co., 9 Utah, 322, 34 Pac, •'•-'Butler V. Egge, 170 Pa. St., 248; Riguey v. Tacoma L. & W. Co.. 239, 32 Atl., 402; Levi v. Schoen- 9 Wash., 576, 37 Pac, 297. thai, 57 N. .L Eq., 244, 41 Atl., 105. 59 stoddart v. Vanlaningham, 14 •''"Pope Mfg. Co. V. Johnson, 40 Kan., 18; Akin v. Davis, 14 Kan., Fed., 584. 143; Olmstead v. Koester, 14 Kan.. •'7 Lux V. Haggin. 69 Cal., 255. 463; Welde v. Scotten. 59 Md.. 72; CHAP. I.J c!i:\ki;al .\ATUiii-; of w uii". 17 court or officer granting tlie writ to require a full disclosure of the facts, and where it is apparent that such disclosure has not been made the relief may properly be refused.^" And where it appears to the court that the cause of action is trivial and that the suit is not being prosecuted by the plaintiff in good faith and in his own interest, the court may require him to be questioned as to his motives, and may, in the exercise of its discretion, deny a preliminary injunction upon his refusal to answer.^ 1 There must be no misrepresentation or con- cealment of important facts, and if plaintiff keeps in the back- ground material facts which are important to enable the court to form its judgment, such conduct is of itself sufficient to prevent the interposition of the court.''- And if upon the application for a preliminary injunction it is doubtful what may be ascertained to be the real facts of the case upon final hearing, and if the rights of plaintiff' will suffer no serious injury if not enforced until such hearing, the court may, in the exercise of a sound discretion, refuse the injunction in limine.^^ If, how^ever, the danger threatened is of such a nature that it can not easily be remedied in case of a refusal of relief, and the answer does not deny that the act charged is contemplated, an interlocutory injunction should be allowed North Carolina R. Co. t). Drew, 3 an absolute duty on the part of Woods, 674; Morris v. Bean,, 123 the court to grant the writ. At- Fed., 618. And in the application torney-General v. Railroad Com- of the doctrine that the granting panies, 35 Wis., 425. of an injunction is a matter of <•" Reddall v. Bryan, 14 Md., 444; sound judicial discretion, a dis- County Commissioners v. Franklin tinction has been drawn between Coal Co., 45 Md., 470; Morris v. cases where it is sought in aid of Bean, 123 Fed. 618. private right, and where it is asked "i People v. Butler, 24 Col., 401, in some matter publici juris; and 51 Pac, 510. in the latter class of cases it is held «- Sprigg v. Western Telegraph that the remedy being in the na- Co., 46 Md., 67; Tifel v. Jenkins, ture of a prerogative remedy, 95 Md., 665, 53 Atl., 429. sought by the Attorney-General in •-■ Conley v. Fleming, 14 Kan , behalf of the people, it is not a 381. matter of judicial discretion, but 2 18 INJUNCTIONS. [chap. I. unless the equities of the bill are satisfactorily refuted by defendant.*^* But the circumstance that the object of the action may be defeated by refusing a temporary injunction is not of itself sufficient to deprive the court of all discretion- ary power in the matter.^^ § 12. Prevention of multiplicity of suits. The prevention of vexatious litigation and of a multiplicity of suits consti- tutes a favorite ground for the exercise of the jurisdiction of equity by way of injunction; and it may be laid down as a general rule that whenever the rights of a party aggrieved can not be protected or enforced in the ordinary course of proceedings at law, except by numerous and expensive suits, a court of equity may properly interpose and afford relief by injunction.^^ And where there is one common right in con- 64 United States v. Duluth, 1 Dil- lon, 469. This was a bill for an in- junction to protect certain im- provements undertaken by the United States in its navigable waters from injury resulting from works carried on by state author- ity. Numerous affidavits of engi- neers and others were offered on both sides as to the effect of the work sought to be enjoined, the opinions expressed being quite con- flicting. The court, Miller, J., say: "The affidavits on both sides are numerous. They demonstrate what all courts and juries have so often felt, that where the question is one of opinion and not of fact, though that opinion should be founded on scientific principles or professional skill, the inquiry is painfully un- Batisfactory, and the answers strangely contradictory. In this emergency I am relieved by a prin- ciple which has generally governed me, and which, I believe, governs nearly all judges in applications for preliminary injunctions, it is that, when the danger or injury threat- ened is of a character which can not be easily remedied if the in- junction is refused, and there is no denial that the act charged is con- templated, the temporary injunc- tion should be granted, unless the case made by the bill is satisfacto- rily refuted by the defendant. In this case I am not satisfied that it is so refuted." 65 Young V. Campbell, 75 N. Y., 525. 66 Pennsylvania C. Co. v. Dela- ware & H. C. Co., 31 N. Y., 91; Mills V. New Orleans Seed Co., 65 Miss., 391, 4 So., 298; National Park Bank v. Goddard, 131 N. Y.. 494, 30 N. E., 566; Hagan v. Blin- dell, 6 C. C. A., 86, 56 Fed., 696; Sanford v. Poe, 16 C. C. A., 305, 69 Fed., 546, 60 U R. A., 641; Mc- Connaughy r. Pennoyer, 43 Fed., 339. For an elaborate and exhaus- CHAP. I.] GENERAL NATURE OF WRIT. 19 troversy which is to be established by or against several per- sons, one person asserting the right against many or many against one, equity may interfere, and instead of permitting the parties to be harassed by a multiplicity of suits, determine the whole matter in one action.^'^ But the rale has no appli- cation where there is no danger of a multiplicity of suits between the parties to the bill but only a possibility that other persons, not parties, might bring other suits for the enforce- ment of rights asserted by them upon substantially the same basis of facts.*^^ And the plaintiff may be required first to establish his right at law as a condition precedent to relief in equity.*'^ § 13. Relative convenience and inconvenience balanced. Where the legal right is not sufficiently clear to enable a court of equity to form an opinion, it will generally be gov- erned in deciding an application for a preliminary injunction by considerations of the relative convenience and inconve- nience which may result to the parties from granting or with- holding the writ. And where, upon balancing such considera- tions, it is apparent that the act complained of is likely to result in irreparable injury to complainant, and the balance of inconvenience preponderates in his favor, the injunction will be granted. But where, upon the other hand, it appears that greater danger is likely to result from granting than from live review of the authorities upon City of Chicago v. Collins, 175 111., the subject of the prevention of 445, 51 N. E., 907, 49 L. R. A., 408, a multiplicity of suits, see Turner 67 Am. St. Rep., 224; Smith v. V. City of Mobile, 135 Ala., 73, 33 Smith, 148 Mass., 1, 18 N. E., 595; So., 132. Sang Lung v. Jackson, 85 Fed., G" Tenham v. Herbert, 2 Atk., 502; Morris v. Hitchcock, 21 App. 483; Sheffield Water-works v. Yeo- D. C, 565. And see Crews v. mans, 2 L. R. Ch. App., 8; Ells- Burcham, 1 Black, 352; Woodruff worth V. Hale, 33 Ark., 633; Hli- v. Fisher, 17 Barb., 224. nois Central R. Co., v. Garrison, 81 ss Dyer v. School District, 61 Vt., Miss., 257, 32 So., 996, 95 Am. St. 96, 17 Atl., 788. Rep., 469; Hightower v. Mobile, J. «o Pennsylvania C. Co., v. Dela- & K. C. R. Co., (Miss.) 36 So., 82; ware & H. C. Co., 31 N. Y., 91. 20 INJUXCTIONS. [chap. I. withholding the relief, or where the iucouvenience seems to be equally divided as between the parties, the injunction will be refused and the parties left as they are until the legal right can be determined at law or upon final hearing.'^^ And if plaintiff's rights may be as well secured by a final injunc- tion, and are not prejudiced by the refusal of a temporary injunction, the court may refuse the interlocutory application, especially when the injuries which would result to defendant if the relief were improperly granted would greatly exceed the benefits which might result to plaintiff if the injunction were properly granted."^ Indeed, the consideration of relative convenience and inconvenience to the parties is one of the principal guides which govern courts of equity in the matter of granting or withholding relief by interlocutory injunction. ""Cory V. Yarmouth & N. R. Co., 124 Fed., 156; Foster v. Ballen- 3 Hare, 593; Shrewsbury & C. R. berg, 43 Fed., 821; Southwesteru Co. V. Shrewsbury & B. R. Co., 1 B. E. L. & P. Co. v. Louisiana E. Sim. (N. S.), 410; Attorney-Gen- L. Co., 45 Fed., 893; Whitcomb v. eral v. Mayor, etc., 1 Myl. & Cr.. Girard Coal Co., 47 Fed., 315; In- 171; Greenhalgh v. Manchester & dianapolis Gas Co. v. City of Indi- B. R. Co., 3 Myl. & Cr., 784; Har- anapolis, 82 Fed., 245; Railroad & rison v. Yerby, 87 Ala., 185, 6 So., Telephone Co. v. Board of Equal- 3; Highland A. & B. R. Co. v. izers, 85 Fed., 302; Amelia Milling Birmingham U. Ry. Co., 93 Ala., Co. v. Tenn. C, I. & R. Co., 123 505, 9 So., 568; Newark P. R. Co. Fed., 811. And see Hilton v. V. Township of East Orange, 53 Granville, 1 Cr. & Ph., 283; Morris N. J. Eq., 248, 31 Atl., 722; Daugh- & E. R. Co. v. Prudden, 5 C. B. erty v. Kittanning I. & S. Co., 178 Green, 530; Hackensack Improve- Pa. St., 215, 35 Atl., 1111; Kohn v. ment Commission v. New Jersey Old T. M. Co., 2 Utah, 13; Mc- Midland R. Co., 7 C. B. Green, 94; Gregor v. Silver King Mining Co., McCorkle v. Brem, 76 N. C, 407; 14 Utah, 47, 45 Pac, 1091, 60 Am. Dyke v. Taylor, 3 DeG., F. & J.. St. Rep., 883; Crescent Mining Co. 467; Fielden y. Lancashire & Y. R. V. Silvf-r King Mining Co., 14 Utah, Co., 2 De G. & Sm., 531 ; Elwes v. 57, 45 Pac, 1093; Bartlett v. Bart- Payne, 12 Ch. D.. 468; Pioneer lett & Son, 116 Wis., 450, 93 N. Wood Pulp Co. v. Bensley, 70 Wis. W., 473; City of Newton v. Levis. 476; Higgins v. Westervelt, 44 N. 25 C. C. A., 161, 79 Fed., 715; Al- J. Eq.. 254. lison V. Carson, 32 C. C. A., 12, "' Olnistead v. Koester, 14 Kan.. 88 Fed., 581 ; Denver & R. G. R. Co. 463. V. United States, 59 C. C. A., 579, CllAl'. l.| GENERAL NATIRK OF WHIT. 21 And upon the same principle, a temporary injunction may properly be modified where by so doing the bnrden imposed by the injunction upon the defendant will be lightened without any corresponding injury to the plaintiff's rights.'^- If, how- ever, a clear case of irreparable injury is showm as likely to result to complainant unless the injunction is granted, and it does not appear that the issuing of the writ will work any such injury to defendants, the relief will be granted.*^^ 55 14. Possession rarely interfered with by injunction. The object of an interlocutory injunction being the preservation of the property or rights in controversy until a full and final hearing upon the merits, where there are conflicting rights to the possession of property, either personal or real, a court of equity will not upon the unsupported showing of the bill grant an injunction whose effect would be to award possession, and thus determine the merits of the case upon an ex parte application.'^^ Nor will parties in possession, whose rights were acquired by purchase at a sheriff' 's sale from one in peaceable possession, be enjoined from the use and enjoy- ment of the property by other purchasers claiming adversely to the first vendor, each purchaser being ignorant at the time of purchase of any title save that of his vendor."^ Nor should a court by preliminary mandatory injunction transfer the posses- sion of real estate from the defendant to the plaintiff."^ Where, however, defendant's possession is but an interruption of the prior and lawful possession of complainant, whose right is clear and certain, equity may interfere without compelling complain- ant to establish his title by an action at law.'''" And an injunction "- Denver & R. G. R. Co. v. Uni- 566. And see Conway, Ex parte. ted States, 59 C. C. A., 579, 124 4 Ark., 302; McGee v. Smith, 1 C. Fed., 156. E. Green, 462. Ti Brown v. Pacific Cable Co., 5 '•• Kelly v. Morris, 31 Ga., 54. Blatch., 525. '« Catholicon Hot Springs Co. v. "•* Martin v. Broadus, Freem. Ch., Ferguson, 7 S. Dak., 503, 64 N. W., 35; Deklyn r. Davis, Hopk. Ch., 539. 135; Bettman r. Harness. 42 West ""Conway, Ex parte, 4 Ark., 302. Va., 433, 26 S. E., 271, 36 L. R. A., 22 * INJUNCTIONS. [chap. I. restraining plaintiff in an action at law from molesting defend- ants in the possession and enjoyment of their property will not prevent the plaintiff from proceeding with his action to try the right.'^ But to warrant an injunction against the dis- posal of personal property, plaintiff must show a specific right to the property, and that there is danger of its loss unless the court shall interfere.'^ And as between tenants in common of personalty, equity is averse to interfering by injunction with the possession of one of the co-tenants, since they are equally entitled to possession.^*^ But it is proper upon a bill seeking a division of personal property and an account of rents and profits to enjoin a co-tenant, in possession, from waste or destruction of the property, and from removing it beyond the jurisdiction of the court.'^^ ^ 15. Discretion not controlled by mandamus; courts of co-ordinate jurisdiction. It has already been observed that the granting or withholding of an interlocutory injunction is a matter resting in the sound discretion of the court, to be exer- cised according to the circumstances of each particular case.82 Mandamus will not, therefore, lie to control an inferior court or judge in the exercise of such discretion, and to compel him T8 Mayor r. Magnon, 4 Mart, turn to be subservient to the other. (La.), O. S., 2. This discretion in some cases fol- '•j Ximenes v. Franco, 1 Dick., lows the law implicitly; in others ■j^49 assists it and advances the rem- so Blood v. Blood, 110 Mass., 545. edy; in others again it relieves 81 Low V. Holmes, 2 C. E. Green, against the abuse or allays the 5^43 rigor of it; but in no case does it 82 Reddall v. Bryan, 14 Md., 444. contradict or overturn the grounds This discretion, however, is by no and principles thereof, as has been means an arbitrary one, and is to sometimes ignorantly imputed to be exercised in acordance with this court. That is a discretionary established principles of law and power which neither this nor any equity. It has been well said that other court, not even the highest, "the discretion which is to be ex- acting in a judicial capacity, is by ercised here is to be governed by the constitution intrusted with." the rules of law and equity, which Lord Romilly, Master of the Rolls, are not to oppose, but each in il.-; in Haywood v. Cope, 25 Beav., 151, CHAP. I.] GENERAL NATURE OF WRIT. 23 either to grant or to dissolve an injunction.^^ But where one court has in the exercise of its discretion refused an applica- tion for an interlocutory injunction, it is merely a question of courtesy whether another of co-ordinate jurisdiction and equal powers shall grant the relief. In such case the jurisdic- tion of the second court can in nowise be affected by the refusal of the first; nor can the first afterward vacate the injunction ordered by the second, except upon a regular hear- ing of a motion to dissolve.*^^ But where one of two courts of co-ordinate jurisdiction and powers has obtained jurisdiction of a cause it should retain it until finally disposed of; and although both courts may have authority to grant injunctions, yet if one tribunal properly having cognizance of the case has exercised its jurisdiction the other should refuse to interfere.^^ quoting from the Master of the Rolls, in Burgess v. Wheate, 1 Eden, 214. ><•■! Hays, Ex parte, 26 Ark., 510; McMillen v. Smith, lb., 613; Ex parte City Council of Montgomery, 24 Ala., 98; State v. Judge of Sixth District Court, 28 La. An., 905; Ex parte Schwab, 98 U. S., 240; People V. Butler, 24 Col., 401, 51 Pac, 510; Detroit & B. P. R. Co. v. Frazer, 98 Mich., 141, 56 N. W. 1109; Krolik v. Wayne Circuit Judge, 112 Mich., 486, 70 N. W., 1132; Briggs v. Wayne Circuit Judge, 118 Mich., 200, 76 N. W., 1134; Kelsey v. Wayne Circuit Judge, 120 Mich., 457, 79 N. W., 694; Chiera v. Brevoort, 97 Mich.. 638, 57 N. W., 193. And see State V. Parish Judge of St. Bernard, 31 La. An., 794; State v. Judge of Sixth District Court, 32 La. An., 549. See, contra. Ex parte Con- way, 4 Ark., 302; Ex parte Pile, 9 Ark., 336. In Michigan it is held that where all the questions in- volved are purely ones of law and there is a pressing necessity for a decision, or where it was clearly beyond the power of the judge to grant the injunction in the partic- ular case, mandamus will lie to control the action of the lower court. People v. Judge of St. Clair Circuit, 31 Mich., 456; Thomas v. Kent Circuit Judge, 116 Mich., 106, 74 N. W., 381; Bogert v. Jackson Circuit Judge, 118 Mich., 457, 76 N. W., 983; Dodge v. Van Buren Circuit Judge, 118 Mich., 189, 76 N. W. 315; City of Detroit v. Hosmer, 79 Mich., 384, 44 N. W., 622; Ionia, etc. Insurance Co. v. Davis, 100 Mich., 606, 59 N. W., 250, 32 L. R. A., 481; Board of Supervisors v. Wayne Circuit Judge, 106 Mich., 166, 64 N. W., 42; City of Alpena V. Kelley, 97 Mich., 550, 56 N. W., 941. 8-t Welch V. Byrns, 38 111., 20. And a clerk refusing to issue the writ may be punished for contempt. Id. S5 Winn v. Albert, 2 Md. Ch., 42. 24 INJUNCTIONS. [CIIAl*. I. Nor will the prosecution of a suit in one court be enjoined by a court of co-ordinate jurisdiction, when the former tri- bunal may afford adequate relief.^*^ § 16. Not granted against covenant, or offer to perform. Equity wull not grant an injunction for the protection of a naked, legal right which complainant and those under whom he claims have covenanted not to exercise.'^" Nor will the relief be granted against a defendant who in the presence of the court offers to carry out and perform all that complainant upon his own showing is entitled to.'^'* And where it is appar- ent that neither of the parties to the litigation is entitled to the exercise of the right or privilege in controversy, which properly pertains to the public, a court of equity, acting in behalf of the public, will enjoin both parties, although the state is not a nominal party to the cause.^^ § 17. When injunction operative; official notice not neces- sary. An injunction becomes eft'ective as to the party enjoined only from the time of actual notice.^*' And to render an injimc- tion binding and operative upon a defendant it is not necessary that he should have been officially apprised of its existence, or actually served with the writ. And where a defendant has heard the order of the court granting an injunction, or has in any manner received actual notice of its existence, or is informally served, he is as effectually bound by its provisions as if actually and duly served with process.-'^ So if an injunc- tion has been properly granted it will be eft'ective if served ''•J Wilson V. Baker, 64 Cal., 475, 236; Howe v. Willard, 40 Vt., 654 2 Pac, 253. Farnsworth v. Fowler, 1 Swan, 1 ''■ Bosley v. McKim, 7 Har. & J. Skip v. Harwood, 3 Atk., 564 468. Anon., lb., 567; Hearn v. Tennant. ">' Behn v. Young, 21 Ga., 207. 14 Ves., 136; McNeil v. Garratt, 1 "!' Wharf Case, 3 Bland, 361. Cr. & Ph., 98; Golden Gate C. H. r"> Ramsdall v. Craighill, Ohio, M. Co. v. Superior Court, 65 Cal.. H)7. 187, 3 Pac, 628; Fowler v. Beck- »i Milne v. Van Buskirk, 9 Iowa, man, 66 N. H., 424, 30 Atl., 1117. 558; Hull v. Thomas, 3 Edw. Ch , (11 AT. l.J GENERAL NATURE OF WRIT. 25 upon defendants beyond the jurisdiction of the court, or the limits of the state, it only being necessary that they should be apprised of the order of the court to render it binding."- J; 18. Threatened injury sufficient; difficulty in obeying injunction no defense; insolvency not alone sufficient. Tlic remedy by interlocutory injunction being preventive in its nature, it is not necessary that a wrong should have been actually committed before a court of equity will interfere, since if this were required it would in most cases defeat the very purpose for which the relief is sought by allowing the commission of the act which complainant seeks to restrain. And satisfactory proof that defendants threaten the commis- sion of a wrong which is within their power is sufficient ground to justify the relief.'^''* So it is no defense by way of demurrer to the bill that the act complained of has not been done where the defendant is threatening to do the act and will do so unless restrained by the court.'^^ But where the act sought to be enjoined is an official one imposed upon a public officer by the command of higher authority which he has no power to question or dispute, proof that he has threatened to do the act sought to be restrained w^ill not be required.^^ And where the plaintiff's rights and their violation by the defendant are clear, it is no defense to an application for an injunction that the latter may find it a matter of difficulty to keep within the terms of the court's order.^^ Upon the question whether the "2 Haring v. Kaiiffman, 2 Beas., should be denied, yet the bill 397. should be retained with leave to 93 McArthur v. Kelley, 5 Ohio, the plaintiff to apply for an in- 139; Kimberly & C. Co. v. Hewitt, junction and it was therefore held 75 Wis., 371, 44 N. W., 303. In error to dismiss the bill. Real Estate T. Co. v. Hatton, 194 »* Union M. & M. Co. v. Warren, Pa. St., 449, 45 Atl., 379, it was 82 Fed., 522. held that where the defendant, by "^ Williams v. Boynton, 147 N. Y, answer and in open court, dis- 426, 42 N. E., 184. claims any Intention of doing the ^*' Northern Pacific Ry. Co. v. acts sought to be enjoined, al- Cunningham, 103 Fed., 708. though a preliminary injunction 26 INJUNCTIONS. [chap. I. mere insolvency of the defendant, unaccompanied by any other circumstances, is sufficient to justify relief by injunction, the authorities are conflicting. Although there are frequent intima- tions by the courts that mere insolvency is sufficient ground for equitable interference, yet the weight of the actual adjudica- tions upon the ciuestion is clearly to the effect that the mere ina- bility of the defendant to respond in damages at law, although it may properly be taken into consideration upon an applica- tion for the extraordinary aid of equity by injunction, does not of itself constitute a sufficient foundation for the relief.^^ § 19. Disclosure of secrets enjoined. The disclosure of secrets which have come to one's knowledge during the course of a confidential employment will be restrained by injunction. And where a confidential relationship has existed, out of which one of the parties has derived information or secrets con- cerning the other, equity fastens an obligation upon his con- science not to divulge such knowledge, and enforce^ the obli- gation when necessary by injunction. Thus, persons who in the capacity of attorneys, agents or in other confidential rela- tions, have obtained the custody of the books and documents of their principals, or have come into possession of secrets relating to their affairs, will be restrained from making them public.^* So defendants will be enjoined from disclosing the 07 Mechanics Foundry v. Ryall, v, Webb, 117 N. C, 478, 23 S. E., 75 Cal., 601, 17 Pac, 703; Centre- 458; Harms u. Jacobs, 158 111., 505, ville & Abington T. Co. v. Barnett, 41 N. E., 1071. See, post. § 400 as 2 Ind., 536; Heilman v. Union C. to the effect of the insolvency of Co., 37 Pa. St., 100; Parker v. Fur- the vendor of realty upon the ven- long, 37 Ore., 248, 62 Pac. 490; dee's right to restrain the collec- Moore v. Halliday, (Ore.) 72 Pac, tion of unpaid purchase money 801; Welk v. Dayton, 11 Nev„ 161. upon a failure of title. And see Miller v. Wills, 95 Va., os Evitt v. Price, 1 Sim., 483; 337, 28 S. E., 337; Raleigh & West- Morison v. Moat, 9 Hare, 255; ern Ry. Co. v. G. & G. M. & M. Co., Prince Albert v. Strange, 1 Mac. & 112 N. C, 661, 17 S. E., 77. Contra, G., 25; Lewis v. Smith, lb., 417; Wilson V. Hill, 46 N. J. Eq., 367, Williams v. Prince of Wales, 23 19 Atl., 1097. And see, also, contra, Beav., 340; Davies v. Clough, 8 Taylor v. Russell, 119 N. C, 30, 25 Sim., 262; Goodale v. Goodale, 16 S. E., 710; Morganton L. & I. Co. Sim., 316; Salomon v. Hertz, 40 N. CHAP. I.J GK.NEKAL NATURE OF WRIT. 27 secrets pertaining to plaintiff's business and processes of manu- facturing goods, defendants having acquired such knowledge while in plaintiff's employ, under an agreement that, in consid- eration of the employment, they would not divulge such secrets.^'' And in such case it is unnecessary that there should be an express covenant upon the part of the defendant not to disclose the secrets of plaintiff's business if such an agree- ment may fairly be implied from the circumstances of the case and the relation of the parties.^ And the injunction may properly run not onlj^ against the employee who is thus vio- lating the plaintiff's rights but also against his competitors J. Eq., 400, 2 Atl., 379; Yovatt v. Winyard, 1 Jac. & W., 394; Merry- weather V. Moore, (1892) 2 Ch., 518; Jarvis v. Peck, 10 Paige Ch., 118; Peabody v. Norfolk, 98 Mass., 452. 99 Salomon v. Hertz, 40 N. J. Eq., 400, 2 Atl., 379; TTium Co. v. Tloczynski, 114 Mich., 149, 72 N. W., 140, 38 L. R. A., 200, 68 Am. St. Rep., 469; Fralich v. Despar, 165 Pa. St., 24, 30 Atl., 521; Stone V. Goss, 65 N. J. Eq., 756, — Atl., — , 63 L. R. A., 344. 1 Westervelt v. National Paper Co., 154 Ind., 673, 57 N. E., 552; Harrison v. Glucose Sugar R. Co., 53 C. C. A., 484. 116 Fed., 304, 58 L. R. A., 915; Stone v. Goss, 65 N. J. Eq.,756, — Atl., — , 63 L.R.A., 344; Eastman Kodak Co. v. Reichen- bach, 79 Hun, 183, 29 N. Y. Supp., 1143; Little v. Gallus, 4 App. Div., 569; dictum in Thum Co. v. Tloc- zynski, 114 Mich., 149, 72 N. W., 140, 38 L. R. A., 200, 68 Am. St. Rep., 469. And see Silver Spring B. & D. Co. V. Woolworth, 16 R. I. 729, 19 Atl., 528. In Westervelt v. National Paper Co., 154 Ind., 673, 57 N. E., 552, supra. Monks, J., makes use of the following lan- guage: "It is evident from the authorities cited that if a person employs another to work for him in a business in which he makes use of a secret process, or of machinery invented by himself, or by others for him, but the nature and particulars of which he de- sires to keep a secret, and of which desire on the part of tho employer the employe has notice at the time of his employment, even if there is no express contract on the part of the employe not to divulge said secret process or machinery, the law will imply a promise to keep the employer's se- cret thus entrusted to him; and any attempt on his part to use the secret process or machinery, or to construct the machinery for his own use as against the master, or to communicate said secret to oth- ers, or in any manner to aid oth- ers in using the same, or in con structing the machinery, will not only be a breach of his contract with his employer, but a breach 28 INJUNCTIONS. [chap, l, who have wrongfully induced the employee to disclose to them the secrets of the business, restraining them from making use of such information.- And where defendant has thus put himself in the wrong by procuring from plaintiff's employee a disclosure of trade secrets, it is no defense to the application for the injunction that the defendant himself, by his own independent investigation, would in all probability have discovered the secret process in question.^ Nor is the necessary disclosure of the secrets of plaintiff's business during the course of the trial such a publication as will prevent him from obtaining the desired relief.^ And where plaintiff is engaged in the business of procuring early data and informa- tion in regard to the erection of public buildings and other public works which it furnishes to its customers under an agreement upon their part to keep it secret, an injunction will lie to restrain the customers from divulging the infor- mation thus obtained, contrary to the agreement.'^ The rule, however, does not extend to cases where a fraudulent tran- saction has come to the knowledge of the person occupying the confidential relation, since equity can extend no protection to iniquitous secrets." Nor will the relief be granted where it appears that long before the filing of his bill, the plaintiff has sold out and ceased doing business, since no injury could result to him in such a case.'^ of confidence and violation of duty enough copies of the secret testi- which will be enjoined by a court mony to supply the members of the of equity." court. Nor is the plaintiff re- :; Westervelt v. National Paper quired to set forth his secret proc- Co., 154 Ind., 673, 57 N. E., 552; esses in the bill. Adams v. Knapp, Stone V. Goss, 65 N. J. Eq., 756, 121 Fed., 34, 40. — Atl., — , 63 L. R. A., 344. •' Dodge Co. v. C. I. Co., 183 ;-■ Stone V. Goss, 65 N. J. Eq., 756, M^ss., 62, 66 N. E., 204. 60 L. R. A., — Atl., — 63 L. R. A., 344. 810. * Stone V. Goss, 65 N. J. Eq., 756, " Gartside v. Outram, 3 Jur. N. — Atl., — , 63 L. R. A., 344. See S., 40. this case to the effect that in such ' Shonk Tin Printing Co. v. case it is proper to have the hear- Shonk, 138 111., 34, 27 N. E., 529. ing in private and to have only CHAr. l.J GENERAL NATURE OF WRIT. 29 § 20. Criminal acts not enjoined. The subject-matter of the jurisdiction of equity being the protection of private property and of civil rights, courts of equity will not inter- fere for the punishment or prevention of merely criminal or immoral acts, unconnected with violations of private right. Equity has no jurisdiction to restrain the commission of crimes, or to enforce moraJ obligations and the performance of moral duties; nor will it interfere for the prevention of an illegal act merely because it is illegal. And in the absence of any injury to property rights it wall not lend its aid by injunction to restrain the violation of public or penal statutes, or the commission of immoral and illegal acts.^ Thus, the relief has been refused to prevent persons from carrying on the business of banking in violation of a Svtatute restraining unincorporated banking associations." So where it was sought to enjoin sAttorney-General v. Utica In- surance Co., 2 Johns. Ch., 371; Sparhawk v. Union P. R. Co., 54 Pa. St., 401; Babcock v. New Jer- sey S. Y. Co., 5 C. E. Green, 296; Emperor of Austria v. Day, 3 De G., F. & J., 217; Cope v. District Fair Association, 99 111., 489; Portis V. Fall, 34 Ark., 375; Medical & Surgical Institute v. City of Hot Springs, 34 Ark., 559; State v. Schweickardt, 109 Mo., 496. 19 S. W., 47; Worthington v. Waring, 157 Mass., 421, 32 N. E., 744, 20 L. R. A., 342; State v. Capital City Dairy Co., 62 Ohio St., 123, 56 N. E., 651; State v. O'Leary, 155 Ind., 526, 58 N. E., 703, 52 L. R. A., 299; People v. District Court. 26 Col. 386. 58 Pac, 604. 46 L. R. A., 850; O'Brien v. Harris, 105 Ga., 732, 31 S. E., 745; Ocean City Assn. v. Schurch, 57 N. J. Eq., 268, 41 Atl., 914; Tiede v. Schneidt, 99 Wis.. 201, 74 N. W., 798; McGinnis v. Friedman, 2 Idaho, 393, 17 Pac. 635. 9 Attorney-General r. Utica In- surance Co., 2 Johns. Ch., 371. The information filed in this case by the Attorney-General, ex officio, sought to restrain the defendant, a com- pany incorporated for transacting the busines of fire and marine in- surance, from engaging in banking operations without authority in its act of incorporation, and in direct violation of a public statute pro- hibiting unincorporated banking associations. Kent, chancellor, after suggesting that the ques- tion involved was purely a legal question, the charge partaking of the nature of a criminal offense, observes as follows: "If a charge be of a criminal nature, or an of- fense against the public, and does not touch the enjoyment of prop- erty, it ought not to be brought within the direct jurisdiction of 30 INJUNCTIONS. [chap. I. defendants from running their street cars on Sunday, in viola- tion of a statute making it a penal offense, the relief was refused, although the action was brought by pewholders and this court, which was intended to deal only in matters of civil right resting in equity, or where the remedy at law was not sufficiently adequate. Nor ought the process of injunction to be applied but with the utmost caution. It is the strong arm of the court; and to render its operation benign and useful it must be exercised with great discretion, and when neces- sity requires it. Assuming the charges in the information to be- true, it does not appear to me that the banking power, in this case, produces such imminent and great mischief to the community as to call for this summary remedy. The English Court of Chancery rarely uses this process, except when the right is first established at law, or the exigency of the case renders it indispensable. Thus, in Brown's case, in 2 Vesey, 414, a motion was made for an injunc- tion to stay the use of a market, and Lord Hardwicke said it was a most extraordinary attempt, and that the plaintiff had several rem- edies which he might use. He said it would cause great confu- sion to bring into contempt, upon the injunction, all persons who might use the market; and that if the court ought to interpose at all, it would be after the title was es- tablished at law. So he observed in another case (Amb., 209, Anon.) that the court granted an injunc- tion to stay the working of a col- liery with great reluctance, and will not do it except where there is a breach of an express covenant or an uncontroverted mischief. In a late case before Lord Eldon (At- torney-General V. Nichol, 16 Vesey, 338), on an information filed to re- strain the defendant from obstruct- ing the ancient lights of a hospital, he stated that the foundation of this jurisdiction by injunction was that head of mischief, or those mischievous consequences, which required a power to prevent as well as to remedy, and that there might be nuisances which would support an action but which would not support an in- junction. If the defendants are carying on banking operations contrary to law they ought un- doubtedly to be restrained; but I can not be of opinion that the oper- ation is such a mischief or public nuisance as to require the imme- diate and extraordinary process of this court to abate it. I know that the court is in the practice of re- straining private nuisances to property, and of quieting persons in the enjoyment of private right; but it is an extremely rare case, and may be considered, if it ever happened, as an anomaly for a court of equity to interfere at all, and much less preliminarily, by injunction, to put down a public nuisance which did not violate the rights of property, but only con- travened the general policy. . . . The plain state of the case, then. is that an information is here CHAP. I.] GENERAL NATURE OF WRIT. 31 property owners on the line of defendants' track. In all such eases ample remedy may be had by proceedings at law, and, the offense being damnum absque injuria, courts of equity will not interfere.io So equity will not enjoin the mainte- filed by the Attorney-General to redress and restrain, by injunction, the usurpation of a franchise, which, if true, amounts to a breach of law and of public policy. I may venture to say that such a prose- cution is without precedent in this court, but it is supported by a thousand precedents in the courts of law. How, then, can I hesitate on the question of jurisdiction? The whole question, upon the mer- its, is one of law and not of equity. The charge is too much of the nature of a misdemeanor to belong to this court. The process of injunction is too peremptory and powerful in its effects to be used in such a case as this without the clearest sanction. I shall better consult the stability and utility of the powers of this court by not stretching them beyond the limits prescribed by the precedents." 10 Sparhawk v. Union P. R. Co., 54 Pa. St., 401. This was a bill filed by pewholders in churches and owners of dwelling houses along the line of defendants' street railway to restrain the running of cars on Sunday. The bill charged that by reason of defendants run- ning their cars on Sunday com- plainants "have been, and are and will be, deprived of their right of enjoying the Sabbath as a day of rest and religious exercise, free of all disturbance from merely un- necessary and unauthorized world- ly employment; that they have been, are and will be thereby de- prived from enjoying peaceably and without interruption the wor- ship of Almighty God in their ac- customed places of public worship or in their own residences on the Sabbath day; and that the lawful peace of the said day is thereby disturbed and broken, and the rights of property which they pos- sess in their said churches or places of public worship, and in their private residences, are and will continue to be thereby in- fringed upon, and their said churches and residences deteri- orated in value." The injunction was denied, Thompson, J., saying: "It seems to me that this is clearly but a charge of the violation of the provisions of the act of assembly of 1794 which interdicts worldly employment on the Sabbath day, and that it describes nothing but the consequences which are in- tended to be prevented by that act. If this be so, then it is not a case of special injury, but only that which results from a public offense or wrong to all and every one in the community alike where the act is committed. It is not possible, I think, to discover the connection between the cause of complaint and a private injury, excepting in and through the act as prohibited by the statute. And if we are to regard it as a common law offense 32 INJUNCTIONS. [chap. I. nance of a gambling house/ ^ or of a race track and pool room,^2 such acts being punishable under the criminal laws of the state. Nor will an injunction issue to restrain the sale of spirituous liquors in violation of the criminal laws.^^ Nor Avill a mandatory injunction be granted to compel obedience to the penal laws of the state.^^ And in accordance with the well settled doctrine that equity will not interfere with the administration of the criminal laws of the state, an injunction will not be granted against the enforcement of executions for ihe charge in the bill does no more than describe the fruits of the of- fense. Rest and quiet on the Sab- bath day, with the right and privi- lege of public and private worship undisturbed by any mere worldly employment, are exactly what the statute was passed to protect. 10 Casey, 398. The deprivation of these privileges is the sum of the complaint, and this bill is essen- tially, therefore, a bill to enforce by injunction a penal statute. That is not our province, especially at the suit of a private party." In Wisconsin, however, it is held that the Supreme Court of the state, in the exercise of its original juris- diction under the constitution, may entertain an information by the Attorney-General to restrain corpo- rations from an excess or abuse of their corporate franchises, or from a violation of a public law to the detriment or injury of the public. The court may, therefore, enter- tain an information against a rail- way to enjoin it from violating a law of the state regulating the rates to be charged by railways for the carriage of freight and passen- gers, and to enforce by injunction obedience to the statute, notwith- standing the statue provides pen- alties against the agents of the cor- poration for its violation. And the right to relief by injunction is up- held in such case, although there may be an adequate remedy at law by proceedings in quo warranto. But the Attorney-General will be compelled to elect which remedy he will pursue, and if proceedings are already pending in quo war- ranto the court will require the dismissal of such proceedings as a condition to granting relief by injunction. Attorney-General v. The Railroad Companies, 35 Wis., 425. The case is believed to con- stitute the only precedent for the interference of equity to enforce by injunction obedience to a penal statute, and it certainly extends the jurisdiction by injunction to a point unsustained either by princi- ple or upon authority. 11 People V. District Court, 26 Col., 386, 58 Pac, 604, 46 L. R. A.. 850. 12 State V. O'Leary, 155 Ind., 526, 58 N. E., 703, 52 L. R. A., 299. !•■' O'Brien v. Harris, 105 Ga., 732, 31 S. E.. 745. 1 ' State V. Capital City Dairy Co., 62 Ohio St., 123. 56 N. E., 651. CHAP. I. I GENERAL NATUKE OF WIUT. 33 costs issued against an unsuccessful party to a criminal prose- cution.^^ Nor will a court of equity enjoin a judgment imposed for violating a law of the state.^'' Nor will it enjoin suits or prosecutions of a criminal nature.^" § 20 a. When relief granted though acts are criminal. It must constantly be borne in mind, however, that the rule for- bidding interference by equity to restrain the commission of crimes is limited strictly to cases where the acts sought to be enjoined are unaccompanied by any injury to property rights and where the granting of the relief would, therefore, be, in effect, the enforcement by courts of equity of the penal laws of the state. And where the acts against which the relief is prayed are such as to cause irreparable damage to property or property rights, or the case is one which for any other reason calls for the interposition of equity according to established principles, the mere fact that such acts are also criminal in their nature and punishable under the penal laws of the state constitutes^ no valid defense to the interference of the court by injunction. In such case property rights are being violated and it is for their protection that it is the duty of the court to interfere and the wrong-doer will not be permitted to shield himself from the strong arm of equity by pleading the criminal nature of the wrongs in which he is engaged.^^ 15 Gault V. Wallis, 53 Ga., 67.5. v. Pennsylvania Co., 54 Fed., 730, 16 Joseph V. Burk, 46 Ind., 59. 19 L. R. A., 387; United States v. 17 Moses V. Mayor of Mobile, 52 Elliott, 64 Fed., 27; Consolidated Ala., 198; Washington & G. R. Co. S. & W. Co. v. Murray, 80 Fed., 811; V. District of Columbia, 6 Mackey, Nashville, C. & St. L. Co. v. Mc- 570; Poyer v. Village of Des Connell, 82 Fed., 65; Union Pacific Plaines, 123 111., Ill, 13 N. E., 819. R. Co. v. Ruef, 120 Fed., 102; Jones 18 /n re Debs, 158 U. S., 564, 15 v. Oemler, 110 Ga., 202, 221, 35 S. Sup. Ct. Rep., 900; Hamilton-Brown E., 375; Peoples Gas Co. v. Tyner, S. Co. V. Saxey, 131 Mo., 212. 32 S. 131 Ind., 277, 31 N. E. 59, 16 L. W., 1106, 52 Am. St. Rep.. 622:' R. A., 443, 31 Am. St. Rep., 433; Coeur D'Alene C. M. Co. v. Miners' Columbian Athletic Club v. State, Union, 51 Fed., 260, 19 U R. A., 143 Ind.. 98, 40 N. E., 914, 52 Am. 382; Toledo, A. A. & N. M. Ry. Co. St. Rep., 407; Cumberland Glass 3 34 INJUNCTIONS. [chap. I. §20 I. No relief against injury to one's feelings; nor for protection of "right of privacy," or of political rights. Courts of equity being concerned, as already pointed out, only with property and property rights, they will not interfere by injunc- tion to restrain wrongs which result only in injury to one's feelings or to prevent the violation of rights which are of a purely personal nature and which have no connection or association with property interests. And whether or not there exists in our jurisprudence a so-called "right of privacy," the violation of which would be actionable in a court of law or might be made the basis for prosecutions of a criminal nature, as to which the authorities are somewhat in conflict, certain it is that no such right exists as a sufficient basis for the interpo- sition of a court of equity by the extraordinary remedy of injunction.^ ^ An injunction will therefore not lie to restrain the publication of a biographical sketch of a deceased member of plaintiff's family.^^ So equity will not enjoin the distribu- tion of lithographic prints and likenesses of plaintiff in con- nection with advertisements of defendant's business.-^ So the Mfg. Co. V. G. B. B. Assn., 59 N. J. liss v. Walker Co., 57 Fed., 434, Eq., 49, 46 Atl., 208; Vegelahn v. 31 L. R. A., 283. And see Schuy- Gunther, 167 Mass., 92, 44 N. E., ler v. Curtis, 147 N. Y., 434, 42 N. 1077, 57 Am. St. Rep., 443; Beck B., 22, 31 L. R. A., 286, 49 Am. St. V. Railway Teamsters Union, 118 Rep., 671. In Corliss v. Walker, Mich., 497, 77 N. W., 13, 42 L. R. 64 Fed., 280, 31 L. R. A., 283, the A., 407, 74 Am. St. Rep., 421; Ha- court make the distinction, as to warden v. Y. & L. C. Co., Ill Wis., the existence of the right of pri- 545, 87 N. W., 472, 55 L. R. A., vacy, between private and public 828; Cranford v. Tyrrell, 128 N. Y., characters. This distinction has 341, 28 N. E., 514; North Bloom- been severely and, it seems, just- field G. M. Co. V. United States, 32 ly criticised. See Atkinson v. Do- C. C. A., 84, 88 Fed., 664; Port of herty and Roberson v. Rochester Mo])ile V. Louisville & N. R. Co., F. B. Co., supra. 84 Ala., 115, 4 So., 106. ^<) Corliss v. Walker Co., 57 Fed., '"Roberson v. Rochester F. B. 434, 31 I.. R. A., 283. Co., 171 N. Y., 538, 64 N. E., 442, '-ii Roberson v. Rochester F. B. 59 L. R. A., 478, 89 Am. St. Rep., Co., 171 N. Y., 538, 64 N. E., 442, 828; Atkinson v. Doherty, 121 59 L. R. A., 478, 89 Am. St. Rep., Mich., 372. 80 N. W., 285. 4r; L. t?,. S"8. A.. 219, 80 Am. St. Rep., 507; Cor- CilAP. I.] GENERAL NATURE OF WEIT. 35 widow of a deceased husband can not restrain the use of his name and picture upon the wrapper of a brand of cigars manu- factured and sold by the defendant.^^ Where, however, the publication of plaintiff's photograph would involve a breach of confidence and of a contractual relation, express or implied, equity, having undoubted jurisdiction to protect contract rights, may properly interfere to restrain such publication.^^ And upon the same principle that courts of equity are con- cerned only with the protection of j:)roperty rights, they will not interpose the aid of injunction for the protection of rights which ai'e of a purely political nature.-^ And where the sole question at issue is as to the right of a subordinate branch of a benevolent organization to be represented in the central body, equity will not lend its aid since no right of property is involved. 2^ § 21. Fraud as ground for relief. Courts of equity in the exercise of their general jurisdiction for the prevention of fraud are often called upon to interfere by injunction where fraud constitutes the gravamen of the bill. The manifestations of fraud are so various that it is impossible to embrace all its varieties of form within the limits of a precise definition. Indeed the courts have generally avoided all attempts in this direction, and have reserved to themselves the liberty to deal with it in whatever aspect it may be presented by human ingenuity. The most frequent instances in which injunctions are granted upon the ground of fraud are in cases where relief is sought against proceedings at law, and to the chapters upon that subject the reader is referred for the principles which gov- 22 Atkinson v. Doherty, 121 24 Fletcher v. Tuttle, 151 111., Mich., 372, 80 N. W., 285, 46 L. R. 41, 37 N. E., 683, 25 L. R. A., 143. A., 219, 80 Am. St. Rep., 507. And see, post, § 1312. 23 Pollard V. Photographic Co , 25 Wellenvoss v. Grand Lodge, 58 L. J. N. S. Ch., 251; Corliss v. 103 Ky., 415, 45 S. W., 360, 40 L. Walker Co., 57 Fed., 434, 31 L. R. R. A. 488. In Worlds Columbian A., 283. Exposition v. United States, 6 C. s ^^. Irreparable injury must be clearly sbown. An 36 INJUNCTIONS. • [chap. I. em the interference of equity in such cases.-^ Where fraud is relied upon as the foundation for an injunction, the allegations in the bill must be of specific and definite acts of fraud, and not mere general averments ; and in the absence of such spe- cific allegations a court of equity will not interfere, although irreparable injury is alleged.-" Upon the other hand, it is unnecessary that fraud should be alleged in the pleadings in express terms if facts are averred from which it follows as a conclusion of law.-* § 22 injunction, being the "strong arm of equity," shouki never be granted except in a clear case of irreparable injury, and with a full conviction on the part of the court of its urgent neces- sity.29 But by irreparable injury it is not meant that the injury is beyond the possibility of repair by money compensa- tion but it must be of such a nature that no fair and reason- able redress may be had in a court of law and that to refuse the injunction would be a denial of justice.^*^ To justify the C. A., 58, 56 Fed., 654 it was held consequent injury to plaintiff's that the United States could not property located near the seat of enjoin the managers of what was war, the issues involved in such known as the Chicago Worlds case being purely political ones. Fair from opening the exposition -« See chapters II and III, post. and grounds to the public on Sun- :^' Powell v. Parker, 38 Ga., 644; days contrary to the act of con- Dickenson v. B. L. & I. Co., 93 Va., gress appropriating certain money 498, 25 S. B., 548. And see Brick to aid in the construction of the v. Burr, 47 N. J. Eq., 189, 19 Atl., exposition since the case did not 842. involve any such property rights -'< Avery r. Job, 25 Ore., 512, 36 as were entitled to the protection Pac, 293; Andrews i\ King of a court of equity. And in County, 1 Wash., 46, 23 Pac, 409. Pearson v. Pearson, 108 Fed., 461, 22 Am. St. Rep., 136. it was held that the agents of a -'•> Potter r. Schenck, 1 Biss., 515; foreign government which was at Citizens Coach Co. v. Camden war with another could not be Horse R. Co., 29 N. .1. Eq. (2 enjoined from exporting munitions Stew.), 299. of war to their own government ■" Chicago General Ry. Co. v.. in alleged violation of the princi- C, B. & Q. R. Co., 181 III., 605, 54 pies of international law, thereby N. E., 1026. prolonging the war and causing CHAP. l.J GEMEKAL NATURE OF WRIT. 37 court in granting the relief it nnist be reasonably satisfied that there is an actual intention on the part of defendant to do the act which it is sought to enjoin, or that there is probable ground for believing that, unless the relief is granted, the act will be done. And it is not a sufficient ground for inter- fering that, if there be no such intention on the part of de- fendant, the injunction can do no harm.^^ Nor will the court interfere when the evidence shows that there is no probability of defendant doing the act which it is sought to restrain.-^- So if it is apparent upon an application for an injunction that the relief sought is disproportioned to the nature and extent of the injury sustained or likely to be sustained, the court will decline to interfere.^^ Nor will the relief be granted to prevent the commission of acts which, although unauthorized, yet produce no results injurious to plaintif¥.-'^'* So the relief will not be granted unless the injurj^ to the plaintift* is threatened or imminent or is in all probability about to be inflicted, and the writ will not issue merely to allow the fears or apprehension of the plaintift" where there is no showing or reasonable ground for believing that the defendant is about to commit the w^rongs complained of or where it appears that he is without the oppor- tunity or intention of so doing.^'' And an interlocutory injunction will not be allowed where the right wdiich plaintiff seeks to have protected is in doubt or where the injury which wall result from the invasion of that right is not irreparable.^^ And upon an interlocutory application for an injunction and a receiver to take possession of property pendente lite, plaintift' ■ii Dunn V. Bryan, I. R. 7 Eq., "i^ McLaughlin v. Sandusky, 17 143. Neb., 110, 22 N. W., 241. '■'■- Lord Cowley v. Byas, 5 Ch. ^•"' Lester Real Estate Co. v. City n., 944. of St. Louis, 169 Mo., 227, 69 S. W., :■•■'• Hall r. Rood, 40 Mich., 46; 300; Reynolds v. Everett, 144 N. Lynch v. Union Institution, 159 Y., 189, 39 N. E., 72. Mass.. 306, 34 N. E.. 364, 20 L. R. :<« Hagerty v. Lee, 45 N. J. Eq., A., 842: Amerman v. Deane, 132 255, 17 Atl., 826; Amos v. Nor- N. Y., 355, 30 N. E., 741, 28 Am. cross. 58 N. .1. Eq., 256, 43 AtL, St. Rep., 584. 195. 174847 38 INJUNCTIONS. [chap. I. must not only show a case of adverse and conflicting claims to the property and one of equitable cognizance, but he must also show some emergency or danger of loss requiring immediate action ; and the danger must be clear and the right of plaintiff free from reasonable doubt to warrant the interposition of the court.^" § 23. Injunction not corrective of past injuries. The appropriate function of the writ of injunction is to afford pre- ventive relief only, and not to correct injuries which have already been committed, or to restore parties to rights of which they have already been deprived. It is not, therefore, an appropriate remedy to procure relief for past injuries, and it is only to be used for the prevention of a future injury actually threatened, and to prevent the perpetration of a legal wrong for which no adequate remedy can be had in damages. And if the act sought to be enjoined has already been committed, equity will not interfere, since the granting of an injunction under such circumstances would be a useless act.^^ But where the act sought to be enjoined is only par- tially completed, an injunction will lie to restrain the com- pletion of the threatened injury.3f> And where suit is begun before the doing of the wrongful act and during the pendency 37 Beecher V. Bininger, 7 Blatch., v. Davis, 22 Fla., 405; Ewing v. 170. Roiirke, 14 Ore., 514, 13 Pac, 483; ••i« Menard v. Hood, 68 111., 121; Gardner v. Stroever, 81 Cal., 148, Lake Shore & Michigan Southern 22 Pac, 483, 6 L. R. A., 90; City Ry. Co. V. Taylor, 134 111., 603, 25 of Alma v. Loehr, 42 Kan., 368, N. E., 588; Owen v. Ford, 49 Mo., 22 Pac, 424; Manufacturers Out' 436; Carlin v. Wolff, 154 Mo., 539, let Co. v. Longley, 20 R. I., 86, 37 51 S. W., 679, 55 S. W., 441; Ches- Atl., 535; Kohn v. Old T. M. Co., apeake & O. R. Co. v. Patton, 5 2 Utah, 13; Cecil Natl. Bank v. West Va., 234; People v. Clark, 70 Thurber, 8 C. C. A., 365, 59 Fed., N. Y., 518; Cole v. Duke, 79 Ind., 913; Mexican Ore Co. v. Mexican 107; Georgia Pacific Railway v. G. M. Co., 47 Fed., 351. See also MayoT, 75 Ga., 828; Trevigne v. Mayor v. Mitchell, 79 Ga., 807, 5 School Board, 31 La. An., 105; S. E., 201. Street Railroad Co. v. Wildman, •-'» Newell t'. Sass, 142 III., 104, 58 Mich.. 286, 25 N. W., 193; Smith 31 N. E., 176. CHAP. I.] GENERAL NATURE OF WRIT. 39 of the suit the act is done by the defendant, the court will not thereby be deprived of its jurisdiction."*^ And where a man- datory injunction is sought to compel the defendant to remove an obstruction to a public highway, the removal by the defend- ant during the pendency of the suit will not deprive the plain- tiff of the right to a final judgment since the defendant might again replace and maintain the obstruction.^^ § 24, Relief in cases of trust. Under the established juris- diction of equity in matters of trust and its power to enforce by trustees the proper performance of their duties, the court may enjoin trustees from proceeding in disregard of the condi- tions necessary to the proper exercise of their authority, or from an improper use of such authority, there being no ade- quate remedy at law."*- Thus, a trustee who is proceeding to sell real estate without having given the bond required of him by the instrument creating the trust, may be restrained from proceeding with such sale.^^ gg a cestui que trust may enjoin his trustees from selling the trust property upon conditions which are unfavorable to its sale and which are calculated to depreciate the value of the property."** So where a policy of life insurance is assigned to a trustee for the benefit of a minor, an attempt by the trustee to procure the money for his own use would seem to afford sufficient ground for an injunction until the hearing.*^ And upon a bill charging a trustee with maladministration of his trust, and alleging that acts are threatened which would be irremediable if committed, it is proper to grant a preliminary injunction without notice to defendant."*^ And it is proper to continue until the final hearing an injunction to retain in the hands of the court cbn- 40 Lewis V. Town of North -i.t pool v. Potter, 63 111., 533. Kingstown, 16 R. I., 15, 11 Atl., ^4 Dance v. Goldingham, L. R. 8 173, 27 Am. St. Rep., 724. Ch., 902. 41 McFarland v. Lindekugel, 107 4:, pernie v. Maguire, 6 Ir. Eq., Wis., 474, 83 N. W., 757. 137. 42 State r. Maury, 2 Del. Ch., 141; 4o Davis v. Browne, 2 Del. Ch., Pool V. Potter. 63 111., 533. 188. 40 INJUNCTIONS. [chap. I. trol of a trust fund, pendinjor a controversy as to the reforma- tion of a judgment, the testimony being conflicting as to the rights of the parties.^'^ § 25. Jurisdiction cautiously exercised against trustees. But while the protection of trusts is a favorite branch of the jurisdiction of equity, great care is to be exercised in granting injunctions against trustees, lest by tying their hands the trust estate may be left without any representative. Nothing but a case of pressing necessity and imminent probability of great danger from delay will justify a court of equity in divesting a trustee of his trust until he has had an opportu- nity of answering.'*'* And an injunction will not be awarded in the first instance against an executor or trustee upon mere general charges in the bill that he has abused and violated his trust."*" Nor is the fraudulent abuse of their trust by the directors of a banking corporation respecting the election of directors sufficient ground to warrant a court of equity in inter- fering, there being no charge of abuse of trust or fraud in the management of the ordinary financial concerns of the bank.^^ And while equity may enjoin a trustee who has been guilty of gross misconduct from the custody of the trust funds, yet there must be probable danger of waste or loss before the relief will be allowed and the legal right of the trustee be displaced.-''^ And the court will not by an interlocutory injunction restrain the transfer of an alleged trust fund, when defendant denies that it is a trust fund, and when the right to deal with it is the question to be determined upon the final hearing."'- And a creditor who is entitled to the benefit of a trust fund for the paj'ment of his demand, with others, is not ^7 Morris v. Willard, 84 N. C, •'■■" Ogden v. Kip, 6 .Johns. Ch., 293. 160. ■»>* Boyd V. Murray, .3 .Johns. Ch., •''' Satterfield v. .John, 53 Ala., 48; Ogden v. Kip, 6 .Johns. Ch., 127. 160. ''2 Bank of Turkey v. Ottoman ■*■' Boyd V. Murray, 3 Johns. Ch., Co., L. R. 2 Eq., 366. 48. CHAP. I.] GENERAL NATURE OF WRIT. 41 entitled to enjoin the trustee from paying' any part of the trust fund absolutely, but only from making payment until such creditor is paid.^^ § 26. Rights of petition rarely enjoined. The jurisdiction of equity over the right of petition and its authorit}^ to restrain corporations from invoking legislative action have been the subject of some contention and have given rise to an apparent want of harmony in the adjudicated cases. While the power of equity to restrain the exercise of the right of petition to parliament by a corporate body for a change in its powers has been asserted by some of the English decisions/''^ it is difficult to conceive of a case in which the exercise of such power would be proper, in the absence of any abuse of corpo- rate power or misapplication of corporate funds. And a cor- poration will not be enjoined at the suit of a shareholder from applying to parliament in its corporate capacity, by petition under its corporate seal, for an extension of its powers, the right to take such action being regarded as an incident to its powers.^^ Nor will an injunction be granted in such case upon the ground that, in the opinion of the complaining share- holders, the 2neasure whose enactment is sought is inexpe- dient.^*' So the trustees of a corporation which is incorporated in a foreign country will not be enjoined from applying to the legislature of that country for power to increase the capital stock of the company.^''' And equity will not interfere by injunction with the right to petition parliament for special legislation to supersede the rules of property by which the S3 Carter v. City of New Orleans, •"■■"• Ware v. Grand Junction W. 19 Fed., 659. Co., 2 Russ. & M., 470. See Great ''* See l7i re London, Chatham & Western R. Co. v. Rushout, 5 DeG. Dover Railway Arrangement Act. & Sm., 290. L. R. 5 Ch. App., 671; Lancaster ■'''«/« re London, Chatham & & C. R. Co. V. The North Western Dover Railway Arrangement Act, R. Co., 2 Kay & J., 293; Heath- L. R. 5 Ch. App., 671. cote V. North Staffordshire R. Co., f'" Bill v. Sierra Nevada Co., 1 2 Mac. & G., 100. DeG., F. & .!., 177. 42 INJUNCTIONS. [chap. I. citizen is bound, whether by contract or otherwise.^^ Where, however, municipal officers, in disregard of the requirements of their act of incorporation, have made an unauthorized application to parliament for the passage of a bill concerning their municipal affairs, an injunction has been allowed in behalf of tax payers to restrain such officers from causing the application to be made in their corporate capacity and from defraying its expenses out of corporate funds.^^ But in this country the jurisdiction has not been recognized, and it has been held that equity will not interfere with or enjoin the exercise of the right to petition the legislature upon any mat- ter of public or private concern.*^*^ § 27. Foreign sovereigTi entitled to protection. A foreign sovereign is entitled to the aid of equity by injunction in a proper case for the protection of his property rights. And where such sovereign shows by his bill that defendants are about to introduce into his country a large quantity of spu- rious paper money for circulation, which will greatly injure plaintiff and his subjects, an injunction may be allowed. But equity interferes in such case, not for the prevention of illegal or criminal acts as such, or upon political grounds, but only for the prevention of injury to property and property rights.*'^ § 28. Injunction refused where legal remedy adequate. It is always a sufficient objection to the granting of an injunc- 58 Heathcote v. North Stafford- an Attorney-General v. Commis- shire R. Co., 2 Mac. & G., 100. sioners of Kingstown, I. R. 7. Eq., And In Lancaster & C. R. Co. v. 883. See also Attorney-General The North Western R. Co., 2 Kay v. Mayor of Waterford, I. R. 9 Eq., & .1., 293, the court refused to re- 522; Solicitor-General v. Lord strain a railway company from Mayor of Dublin, 1 L. R. Ir. Ch. applying to parliament for power D., 16G. to make a deviation from the line '>'> Story v. Jersey City & B. P. as originally established in viola- P. R. Co., 1 C. E. Green, 13. tion of an agreement made with •' Emperor of Austria v. Day thf plaintiff company, the refusal and Kossuth, 3 DeG., F. & J., 217. being based upon grounds of pub- aflirming S. C. 2 Gif., 628. lie benefit. CHAP. I.] GENERAL NATURE OF WRIT. 43 tion that the party aggrieved has a full and adequate remedy at law, and it is a well established rule that courts of equity will not lend their aid for the protection of rights or the pre- vention of wrongs where the ordinary legal tribunals are capable of affording sufficient redress.^^ And where it does not appear that the remedy at law is inadequate, or that the party aggrieved is entitled to more speedy relief than can be obtained by the ordinary process of courts of law, an in- junction wall be refused.*'^ Thus, where complainant's equity is based upon a claim for unliquidated damages for a sub- stantive injury for which ample remedy exists at law, and there is no impediment to bringing the action in a legal forum, an injunction will not be granted.^^ So where the controversy concerns the title to personal property, the removal of the property will not be enjoined when full and adequate relief may be had at law.*^^ So equity will not interfere by injunc- 62 Coe V. Columbus, P. & I. R. Co., 10 Ohio St., 372; Coughron v. Swift, 18 111., 414; Winkler v. Winkler, 40 111., 179; Bodman v. Lake Fork Drainage District, 132 111., 439, 24 N. E., 630; Chicago, R. I. & P. R. Co. V. City of Chi- cago, 143 111., 641, 32 N. E., 178; Poage V. Bell, 3 Rand., 586; Web- ster V. Couch, 6 Rand., 519; Akrill V. Selden, 1 Barb., 316; Sherman V. Clark, 4 Nev., 138; Mullen v. Jennings, 1 Stockt., 192; Wooden V. Wooden, 2 Green Ch., 429; Ho- boken Ferry Co. v. Baldwin, 58 N. J. Eq., 36, 43 Atl., 417; Richards V. Kirkpatrick, 53 Cal., 433; Fra- zier V. White, 49 Md., 1; City of Council Bluffs v. Stewart, 51 Iowa, 385, 1 N. W., 628; Welde v. Scot- ten, 59 Md., 72; Hettrick v. Page, 82 N. C, 65; Moore v. Steelman, 80 Va., 331; Tumlin v. Vanhorn. 77 Ga., 315, 3 S. E., 264; Wolf River L. Co. v. Pelican B. Co., 83 Wis., 426, 53 N. W., 678; Mobile & G. R. Co. V. A. M. R. Co., 87 Ala., 520, 6 So., 407; Winter ;:. City Council, 93 Ala., 539, 9 So., 366; Highland A. & B. R. Co. v. Birmingham U. Ry. Co., 93 Ala., 505, 9 So., 568; McBee v. Samp- son, 66 Fed., 416; Eidemiller Ice Co. V. Guthrie, 42 Neb., 238, 60 N. W., 717, 28 L. R. A., 581; Kitzman V. Minn. T. Mfg. Co., 10 N. Dak., 26, 84 N. W., 585; Franklin v. Ap- pel, 10 S. Dak., 391, 73 N. W., 259. But in Tennessee a contrary rule would seem to prevail. See Wil- liams V. Pile, 104 Tenn., 273, 56 S. W., 833; Alexander v. Henderson, 105 Tenn., 431, 58 S. W., 648. 63 Mullen V. Jennings, 1 Stockt.. 192; Hart v. Marshall, 4 Minn.. 294. «i Webster v. Couch, 6 Rand.. 519. 65 Moore v. Steelman, 80 Va., 33T. 44 INJUNCTIONS, [chap. I. tion in aid of the right of stoppage in transitu, but will leave the parties to their legal remedies."" So the negotiation of a promissory note will not be enjoined upon the ground that the note has been materially altered since its execution and delivery, as that fact would constitute a good defense to an action at law upon the note even as against an innocent pur- chaser."'^ So equity will not enjoin the payment of a war- rant issued upon a claim which has been duly allowed by a county board where the statute gives the taxpayer the right of appeal to the district court from the allowance of any claim against the county."*^ So equity will not, by mandatory in- junction, compel the doing of an act where its performance may be accomplished by the legal remedy of mandamus.^^ And when it is apparent on the face of the bill that a court of chancery has no jurisdiction of the subject-matter of the cause, and that the party aggrieved has an adequate remedy at law, the bill is obnoxious to a demurrer.'^*' But where the defendant has answered and has gone to a hearing upon the merits without raising the objection of an adequate remedy at law, such objection is deemed to have been waived and it is therefore error for the court, after such a hearing, to dis- miss the bill because of the existence of a legal remedy."^ And it has even been held that the defense is not available where, although raised by the pleadings, it was not pressed until the case reached the reviewing court and in the meantime a long and expensive hearing had been had on the merits.'^- •=« Goodhart v. Lowe, 2 Jac. & W., quard v. Indian Grave Drainage 349. District, 16 C. C. A., 530, 69 Fed., «7 Erickson v. First National 867. Bank, 44 Neb., 622, 62 N. W., 1078. ■"> Winkler v. Winkler, 40 111., 28 L. R. A., 577, 48 Am. St. Rep., 179. 753. "' St. Paul & S. C. R. Co. v. Rob- 'i** Taylor v. Davey, 55 Neb., 153, inson, 41 Minn., 394. 43 N. W., 75. 75 N. W., 553. "-' Williams v. Concord Church, "!' New York & Greenwood L. R. 193 Pa. St., 120, 44 Atl., 272; Dris- Co. V. Township of Montclair, 47 coll v. Smith, 184 Mass., 221, 68 N. N. .1. Eq., 591, 21 Atl., 493; Co- R., 210. CHAP. I.] GENERAL NATURE OF WRIT. 45 § 29. Statutory remedy a bar; when objection of legal rem- edy to be taken. Where a pos(itive statutory remedy exists for the redress of particular grievances, a court of equity will not interfere by injunction and assume jurisdiction of the ques- tions involved; nor will it enjoin proceedings under such statutory remedy, since such interference would place the judicial above the legislative power of the government."-' Legal rights should be left to the decision of a legal forum, and in the absence of special circums,tances warranting the interposition of the extraordinary aid of courts of equity, such courts will not interfere to protect a purely legal right, prop- t:! Brown's Appeal, 66 Pa. St., 155; Hornesby v. Burdell, 9 S. C. 303. In Brown's Appeal, a land- lord had begun proceedings before a justice of the peace, in pursu- ance of a statutory remedy, to re- cover possession of premises de- mised. Before judgment the pro- ceedings were enjoined in the common pleas. Thompson, C. J., says: "The landlord and tenant act of 1863 provides an ample remedy whereby to recover pos- session of leased premises when it is alleged that the term has ex- pired. It is not a one-sided rem- edy, for it allows the defendant ample scope to allege and prove any legal defense he may have against the plaintiff's demand, with the right of review by appeal or certiorari. It is a complete system for that species of contro- versy. I do not know that it is a wise system — that may be doubted ; but it is complete in itself. Pro- ceedings under this system were legally and regularly begun by the defendants, as appears by the rec- ords before us; but before a final result was arrived at the court ot common pleas interposed by in- junction and stopped them. The reason assigned for this was sup- posed hardship upon the plaintiffs, if the plaintiffs in the proceeding repossessed themselves of what they had leased to the defendants. This was manifest interference without authority of law. The court had no jurisdiction in equity of the proceedings. They were not contrary to law; and if they had been, an injunction was not a cor- rectional process. That was to be done by the process provided in the act, viz.: by appeal or certiorari. These were the legal matters pro- vided in the act, and a court of equity could not supplement them. Courts may restrain acts contrary to law, but not where they are according to positive law. That would be to put the courts above the legislature. Where a positive statutory remedy exists and may be pursued, equity can not interfere on the ground of ir- reparable mischief. The 'law in- jures no one' is a maxim which 46 INJUNCTIONS. [chap, I. erly triable at law.'^'* And the assertion of a right whose existence or non-existence is properly determinable at law, and the exercise of which can do no injury to the party deny- ing the existence of the right, affords no ground for equitable interference^^ And in the courts of the United States the objection to granting relief by injunction, that the party aggrieved has ample remedy at law, need not be taken in the pleadings, but may be enforced by the court sim spontc, since it goes to the jurisdiction of the forumj^ It is to be observed, however, that by a legal remedy within the meaning of the rule, which will operate as a bar to relief in equity by in- junction, is meant a remedy which can be found in the courts of the same state; and that is not an adequate legal remedy of which the person aggrieved can avail himself only by go- ing into a foreign jurisdiction.''"'' And where a remedy exists in equity, a subsequent statutory grant of a legal remedy w^ill not deprive a court of equity of its jurisdiction unless inculcates obedience to law. Where positive law in point of fact in- jures, it is the legislature which must furnish the corrective; courts can not. Irreparable dam- ages can not be alleged against statutory remedies legally pursued, and that was the case with the plaintiffs before the magistrate. These principles are plain and need neither authority nor elab- oration to substantiate. We think the court below had no jurisdic- tion in equity to restrain these de- fendants from proceedings under the landlord and tenant act re- ferred to to try their right to re- possess themselves of the leased premises in question. The decree in the case is therefore reversed, and the bill is dismissed at the cost of the appellees." See Attor- ney-General r. Ashborne R. G. Co., (1903) 1 Ch., 101: Richardson v. Murphy, (1899) 1 L. R. Ir., 248. ■^ Wooden v. Wooden, 2 Green Ch., 429. 7s Doughty V. Somerville & E. R. Co., 3 Halst. Ch., 51. "f. Allen V. Car Co., 139 U. S., 658. 11 Sup. Ct. Rep., 682; Hoey v. Coleman, 46 Fed., 221; Parker v. Winnipiseogee L. C. & W. Co., 2 Black, 545. The decision is based upon the sixteenth section of the judiciary act of 1789, R. S. U. S., § 723, which provides 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 rem- edy can be had at law." But see Foltz V. St. L. & S. F. Ry. Co., 8 C. C. A., 635, 60 Fed., 316. ■77 Stanton v. Embry, 46 Conn., 595. CHAP, I.] GENERAL NATUEE OF WRIT. 47 the equitable remedy is extinguished by some positive prohibi- tory provision of the statute/^ And where a suit pending upon the equity side of a federal court is one which properly entitles the plaintiff to relief by injunction according to the established principles of that court, it constitutes no bar to the jurisdiction that the plaintiff has, under the laws of the state where the suit is pending, an adequate remedy at law upon the same cause of action. The statutes of a state can not oust the federal courts of a jurisdiction which is vested in them under the established usages and practice of those courts".'^ ^ § 30. Remedy at law defined. The mere existence, how- ever, of a remedy at law is not in itself stufficient ground for refusing relief in equity by injunction ; nor does the ex- istence or non-existence of a remedy at law afford a test as to the right to relief in equity. To deprive a plaintiff of the aid of equity by injunction it must also appear that the remedy at law is plain and adequate ; in other words, that it is as practical and efficient to secure the ends of justice and its proper and prompt administration as, is the remedy in equity. And unless this is sho\ATi a court of equity may lend its extraordinary aid by injunction, notwithstanding the existence of a remedy at law.*^*^ But by a plain and adequate T8 Woodward v. Woodward, 143 Cal., 378, 46 Pac, 166, 55 Am. St. Mo., 241, 49 S. W., 1001. Rep., 74; Coler v. Board of Com- 79 Smyth V. Ames, 169 U. S., 466, missioners, 89 Fed., 257; Bank of 18 Sup. Ct. Rep., 418; Third Na- Kentucky v. Stone, 88 Fed., 383; tional Bank v. Mylin, 76 Fed., 385. Drew v. Town of Geneva, 150 Ind., 80 Watson v. Sutherland, 5 Wal., 662, 50 N. E., 871, 48 L. R. A., 814; 74; Walla Walla v. Walla Walla La Mothe v. Fink, 12 Chicago Le- Water Co., 172 U. S., 1, 19 Sup. Ct. gal News, 152; Foltz v. St. L. & Rep., 77; Irwin v. Lewis, 50 Miss., S. F. Ry. Co., 8 C. C. A., 635. 60 363; Beaser v. City of Ashland, Fed., 316; Driscoll v. Smith, 184 89 Wis., 28, 61 N. W., 77; Welton Mass., 221, 68 N. E., 210. And see V. Dickson, 38 Neb., 767, 57 N. W., Boyce's Ex'rs v. Grundy, 3 Pet., 559, 22 L. R. A., 496, 41 Am. St. 210; Sloane v. Clauss, 64 Ohio St.. Rep., 771; Kell.ogg v. King, 114 125, 59 N. E., 884. 48 INJUNCTIONS. [chap. I. remedy at law within the meaning of the rule is not meant the right to resort to every remedy given by the forms of legal procedure ; and if any form of action at law will afford a complete and adequate remedy the case falls within the principle which tests the right to resort to equity, and the court will refuse to interfere by injunction.**^ And, ordinarily, an injui'y isj not considered irreparable within the meaning of the rule when the loss complained of may be made good by the payment of money, or when the party aggrieved may be fully reinstated in the position which he has lost by the act in question.*- But the remedy at law will not be regarded as adequate if its adequacy is dependent upon the will of the opposing party .^2 § 31. How injunction granted. Interlocutory injunctions are usually, though not always, granted upon the filing of a bill setting forth complainant's equities and concluding with a prayer for the relief. Where, however, a court of equity has already acquired jurisdiction over the siubject-matter of the action and of the parties thereto, it would seem that no bill is necessary. And wherever the court has power to make an order which a party to the action is bound to obey, in conse- quence of his being either actually or constructively a party to the suit, it may enforce obedience to its order by the process of injunction issued upon a petition in the cause with- out the filing of a bill.^^ But the writ will not be allowed in an improper case, even by the consent of both parties, espe- eiiilly where the rights of third persons intei-vene.*-'' ^ 32. When new suit unnecessary. Whei-e an injunction is sought merely as ;inxili;ii-y to an action already begun, and ">' La Mothe v. Fink. 12 Chicago *<:' Bank of Kentucky v. Stone, Legal News, 152. 88 Fed., 383. «2 Crescent City L. S. L. & S. «• In the Matter of Hemiup, 2 H. Co. V. Police Jury. 32 La. An., Paige, 316. 1192; Irwin v. Great S. T. & T. «r. whelpley r. Erie R. Co., 6 Co., 3(; La. An., 772. Blatch., 27L CHAT. I.] GEXEKAL XATURK OF WRIT. 49 the object desired can be as readily obtained by a motion in the original action, a new suit will not be entertained which is instituted for the sole purpose of obtaining such injunc- tion, since the exercisie of the jurisdiction under such circum- stances would be an encouragement to vexatious litigation.***^ §33. Not granted against persons beyond jurisdiction; when granted against persons within the jurisdiction though the res is beyond. The jurisdiction of equity by way of in- junction being, as we have already seen, strictly w personam, it will not be exercisied against persons and property beyond the borders of the state in which the proceedings are insti- tuted. Neither law nor comity between distinct state govern- ments recognizes the authority of one state to exercise juris- diction over citizens and property beyond its borders.^^ Nor will equity attempt by injiuiction to restrain a non-resident defendant, who has not been served with process, and who is not subject to the jurisdiction of the court, from perform- ing some act beyond the state, even though there has been constructive service by publication as to such defendant.*** But where the court has jurisdiction of the defendants, either by personal service of process, or by voluntary appearance in the case of non-residents, an injunction may be granted to restrain a trespass or other threatened injur}' to property located beyond the territorial jurisdiction of the court.**^ It is to be observed, however, that the relief is confined to cases where the injunction operates strictly in personam and that it will not be granted where the enforcement of the court's decree may require the excution of some process of the court operating upon the subject-matter of the suit and having no S6 Hamer v. Kane, 7 Nev., 61. 395; Jennings v. Beale, 158 Pa. 87 Western Union T. Co. v. Pa- St., 283, 27 Atl., 948; Clad v. cific & A. T. Co., 49 111., 90. Paist, 181 Pa. St., 148, 37 Atl., 194; 88 Hazlehurst v. Savannah, G. & Schmaltz v. York Mfg. Co.. 204 N. A. R. Co., 43 Ga., 13. Pa. St., 1, 53 Atl., 522, 59 L. R. A., 8'J Munson v. Tryon, 6 Phila.. 907, 93 Am. St. Rep., 782. 4 50 INJUNCTIONS. [chap. I. extra-territorial effect.^*' But an injunction does not affect the rights of third parties which have been acquired in good faith when they are not parties or privies to the suit.^^ § 34. Positive averments of fact necessary. An injunction being a harsh remedy will not be granted in the first instance except upon a clear prima facie case and upon positive aver- ments of the equities on which the application for the relief is based. And while it is not essential that complainant should establish his case upon an application for an interlocu- tory injunction with the same degree of certainty that would be required upon the final hearing, he must nevertheless al- lege positively the facts constituting his grounds for relief.^^ Thus, it is well established that the mere allegation of ir- reparable injury will not suffice to warrant an injunction, but the facts must appear on which the allegation is predicated in order that the court may be satisfied as to the nature of the injury.*-^^ And such allegations, being merely the legal con- clusions of the pleader, are not admitted by demurrer,'^^ nor by the failure of the defendant to deny them.^^ Nor will soMunson v. Tryon, 6 Phila:, 395; McHenry v. Jewett, 90 N. Y., 58; Clad V. Paist, 181 Pa. St., 148, 37 Brass v. Rathbone, 153 N. Y., 435, Atl., 194. 47 N. E., 905; Portland v. Baker, 8 91 Roberts v. Davidson, 83 Ky., Ore., 356; State v. Wood, 155 Mo., 279. 425, 56 S. W., 474, 48 L. R. A., 596; 92 Jones V. Macon & B. R. Co., Illinois Central R. Co. v. City of 39 Ga., 138; Perkins v. Collins, 2 Chicago, 138 111., 453, 28 N. E.,740; Green Ch., 482; Holdrege v. Chicago Public Stock Exchange v. Gwynne, 3 C. E. Green, 26; Camp- McClaughry, 148 111., 372, 36 N. B., bell V. Morrison, 7 Paige, 157; 88; Otis v. Sweeney, 48 La. An., Bank of Orleans v. Skinner, 9 940, 20 So., 229; Burrus v. City of Paige, 305; Bogert v. Haight, lb., Columbus, 105 Ga., 42, 31 S. E., 297; McHenry v. Jewett, 90 N. 124; Farland v. Wood, 35 W. Va., Y., 58. 458, 14 S. E.. 140; Becker v. Mc- !i'i Branch v. Supervisors. 13 Graw, 48 W. Va., 539, 37 S. E., 532. Cal., 190; Leitham v. Cusick, 1 »< Beatty v. Smith, 14 S. Dak., Utah, 242; McGregor v. Silver 24, 84 N. W., 208. King Mining Co., 14 Utah, 47, 45 '•'"• McCormick ?;. Riddle, 10 Mont.. Pac, 1091. 60 Am. St. Rep., 883; 467. 26 Pac. 202. CHAP. I.] GENERAL NATURE OF WRIT, 51 merely argumentative allegations, or inferences from the facts stated, suffice to meet the requirements of the rule.^^ So when an injunction is sought upon the ground of fraud it is not sufficient that the averments should be upon information and belief, but they should be positive, and founded upon plaintiff's own knowledge or that of some person cognizant of the facts.^''^ And in the absence of positive allegations that the injury complained of has already been inflicted or is threatened, relief will be denied.^^ So a bill which is want- ing in definite and positive averments of facts upon which the right to relief is based, is bad upon demurrer.^^ § 35. Allegations on information and belief insuflBcient. The relief will not ordinarily be allowed where the facts upon which complainant's equities rest are stated only upon in- formation and belief, but they should be made to appear by positive averments founded on complainant's own knowl- edge,^ or that of some person cognizant of the facts.^ Nor will it suffice that the averments of the bill are made upon the information of the party complaining without stating his sources of information.^ And an injunction granted ex parte, where some of the material allegations of the bill are stated on information and belief, can not be sustained in the absence of proof of their correctness. To sustain an injunction granted without notice all the essential and material allegations which are not positively stated in the bill must be otherwise proved.-* Where, however, the injunction is granted upon notice to de- fendant of the motion, the fact that many of the material averments of the bill are stated upon information and belief 96 Battle V. Stephens, 32 Ga., 25. Minn., 49; Farland v. Wood. 35 W. 07 Brooks V. O'Hara, 8 Fed., 529. Va., 458; 14 S. E., 140. 98 Buck V. Backarack, 45 N. J. 2 Youngblood v. Schamp, 2 Mc- Eq., 123, 17 Atl., 548. Cart, 42. 99 Blakeslee v. M. P. R. Co., 43 3 Blondheim v. Moore, 11 Md., Neb., 61, 61 N. W., 118. 365. 1 Jones V. Macon & B. R. Co., 39 * Dinehart v. Lafayette, 19 Wis , Ga., 138; Armstrong v. Sanford, 7 677. 52 INJUNCTIONS. [chap. I. will not prevent the granting of the relief where defendant in no manner denies such averments.-^ Nor do the mere apprehen- sions and fears of complainant, unsustained by facts estab- lishing their probability, constitute a sufficient ground to war- rant the interference of equity by injunction, since such fears may exist without any substantial reason. Not the complain- ant, therefore, but the court, must be satisfied that a wrong is about to be commited which will be irrepara]t)Ie in its nature before the relief will be allowed." § 36. When verification dispensed with. x\lthough it is gen- erally requisite that an injunction bill should be verified by the oath of complainant or other person cognizant of the facts, yet this is not in all cases indispensable. It will suffice if the confidence of the court is obtained, and this may be done as well by documentary evidence, where such evidence satis- factorily establishes complainant's equities.^ And if it is apparent upon a final hearing that complainant is entitled to an injunction, it will not be refused because the bill is not verified.'* But the relief will, not be allowed upon a bill whose material averments are all denied by the answer of defend- ants under oath." If, however, the bill charges forgery as one of the grounds for relief, a denial in the answer, upon in- formation and belief, will not prevent the issuing of the writ.^^ § 37. Precision required in writ; form not essential ; no ob- jection that case is without precedent. The writ of injunc- tion should contain a description of the particular things or acts concerning which the defendant is enjoined, in order that there may be no opportunity for misapprehension.^' No pai-- ticular form, however, is reciuired, and the writ will, of course, ■'■> Gibson v. Gibson, 46 Wis., 462. '■' Lady Bryan v. Lady Bryan, 4 <>Warfield v. Owens, 4 Gill, 364: Nev., 414. Goodwin v. New York, N. H. & H. i" United States v. Parrott. Mc- R. Co., 43 Conn., 494. All. C. C, 271. 7 Negro Charles v. Sheriff, 12 n Whipple v. Hutchinson, 4 Md., 274. Blatch., 190. N Hawkins r. Hunt. 14 111., 42. CllAV.l.] GENEBAL XATUKE OF WRIT. 53 be varied to meet the peculiar circumstances of each particular case. It is sufficient that it be an authentic notification to the defendant of the mandate of the court, which he must then obey at his peril. '- It is never an objection to the grant- ing of an injunction that the ease is without precedent upon its facts if it is one which falls wnthin established principles of equity jurisdiction and beneficial results follow from the granting of the writ.^-"^ Indeed, in many cases such as those involving fraud, where the manifestations of the injury are as varied as the ingenuity of the human mind, to require a; precedent as a condition to the granting of relief would often be a complete denial of the relief itself and a consequent failure of justice in a case which was properly one of equi- table cognizance. § 38. Injunction may be allowed though not prayed. The court may, under certain circumstances, grant an injunction upon the final hearing of the cause, although not prayed for by the bill.^* And it has been held that after a decree in a foreclosure suit, the mortgagor in possession may be restrained from committing waste, although no injunction was sought by the bill.^^ And the plaintiff may be entitled to a pre- liminary injunction although a final injunction is not prayed where other appropriate relief is asked which is substantially equivalent to a permanent injunction.'" § 39. When injunction revived or reinstated. It is within the discretion of a court of equity to revive an injunction after it has been dissolved ; and upon a proper showing of complainant's right to relief the injunction will be reinstated, the court being regarded as ahvays open for this purpose.''" 12 Summers v. Parish, 10 Cal , i^ Blomfield v. Eyre, 8 Beav., 250. 347. i-i Goodman v. Kine, 8 Beav., 379. 13 Toledo, A. A. & N. M. R. Co. ic Hamilton v. Wood, 55 Minn., V. Pennsylvania Co., 54 Fed., 746, 482, 57 N. W., 208. 19 L. R. A., 395; Nashville, C. & it Tucker v. Carpenter, Hemp. St. L. Co. V. McConnell, 82 Fed., 441; Radford's Ex'rs v. Innes' Ex- 65. ecutrix, 1 Hen. & Mun., 8; Bil- 54 INJUNCTIONS. [chap. I. And where sufficient facts are stated in a supplemental bill to warrant an injunction, it will be granted, although the in- junction granted on the original bill has been dissolved.^* And when an interlocutory injunction is allowed, but the bill is afterward dismissed for want of prosecution, the final order of dismissal does not operate as res judicata upon the ques- tions involved.^ ^ But when a second bill is filed to obtain a second injunction in relation to the same subject-matter and between the same parties, it is not enough to allege new grounds of equity not suggested in the former bill; it must be shown that the new equity alleged did not exist at the time the original bill was filed, or, if it existed, that it was unknown to the complainant.^^ Nor will an injunction once dissolved be reinstated simply upon new evidence, no new ground of equity being stated which was not alleged in the original bill.-^ § 40. New injunction not allowed on same equities. Under a statute prohibiting a second ex parte application to an officer out of court, after the court has refused an injunction, complainant will not be allowed the relief upon a new bill substantially the same as the first.^- So if, after argument, lingslea v. Gilbert, 1 Bland, 568. continued, extended or contracted; In Tucker v. Carpenter, Johnson, in short, it is adapted and used by J., delivering the opinion of the courts of equity as a process for court, says: "A writ of injunction preventing wrong between and may be said to be a process capa- preserving the rights of parties ble of more modifications than any in controversy before them." other in the law; it is so mal- is Fanning v. Dunham, 4 Johns. leable that it may be molded to Ch., 35. suit the various circumstances i'» Chamberlain v. Sutherland, 4 and occasions presented to a court Bradw., 494. of equity. It is an instrument in 20 Bank of U. S. v. Schultz, 3 its hands capable of various appli- Ohio, 61. See also Breeze v. Haley, cations for the purpose of dispens- 11 Col., 351, 18 Pac, 551. ing complete justice between the -'i Lowry i\ McGee, 5 Yerg., 238. parties. It may be special, prelim- -- Cummins v. Bennett. 8 Paige, inary, temporary or perpetual; 79. and it may be dissolved, revived, CHAP. I.] GENERAL NATURE OF WRIT. 55 the court has dissolved an injunction granted on the original bill, and complainant then applies to another officer ex parte, upon a bill containing substantially the same grounds, no in- junction will be allowed.-^ And where after dissolution a bill precisely similar to the first is filed by another party to obviate a difficulty arising in the former suit, it being ap- parent that the second bill is filed in the interest of the former complainant in whose behalf the relief is sought, an injunc- tion will be refused.--* So, after the refusal of a preliminary injunction, a second application for the relief will be denied when based upon the same bill, with an amendment alleging an additional fact which was well known to plaintiffs at the time of filing the original bill.-'^ § 41. Right to relief on amended bill. While the right of the party complaining to amend his bill and renew the application, even after a dissolution upon the merits, may be regarded as clearly established by the authorities,-'^ yet the exercise of the right is guarded with much caution, and it is only to be permitted under such peculiar circumstances as indicate that the promotion of justice requires it.-^ And where an injunction has been dissolved for want of equity in the bill, an ex parte injunction will not be granted upon an amended bill, or upon a new one supplying the equity of the old; but the court will require notice to the opposite party. -^ Where an injunction has already been granted and 23 Harrington v. American L. I. chancellor, as follows: "I lay down & T. Co., 1 Barb., 244. the rule that where an injunction -* Endicott v. Mathis, 1 Stockt, has been dissolved for want of 110. equity in the bill this court ought 25 Beckwith v. Blanchard, 79 not to grant an ex parte injunc- Ga., 303, 7 S. E., 224. tion upon an amended bill, or 26 Buckley v. Corse, Saxt., 504. upon a new bill supplying that 27 Calderwood v. Trent, 9 Rob. equity. If a complainant is will- (La.), 227. ing to swear to a case fitting the 28 Hornor v. Leeds, 2 Stockt., 86. opinion of the court, the rights of The reason for the rule is forcibly a defendant should not be inter- stated in this case by Williamson, fered with upon such a bill with- 56 INJUNCTIONS. [chap. I, is still iu force, its repetition is derogatory to the authority of the court and will not be allowed.-^ And where the relief sought is purely preventive a court of equity will not con- tinue or perpetuate an injunction after the cause for which it was granted has been removed and the rights of com- plainant are no longer in danger.^^ But, though the writ was improperly granted in the first instance, if it has been allowed to stand until final hearing, it is not error then to perpetuate it, sufficient equity appearing.^^ § 42. When jurisdiction exercised by courts of last resort. The granting of injunctions being an exercise of original and not of appellate jurisdiction, a court of last resort whose jurisdiction is limited by the state constitution will not be al- lowed to enlarge or extend its jurisdiction to the granting of injunctions in cases pending in the inferior courts where this power is not granted it by the constitution.^- So if the constitution of a state limits the original jurisdiction of the out affording the defendant an op- power to allow these is a part of portunity of being first heard." the appellate jurisdiction, the 2» Livingston v. Gibbons, 4 grant of which is authorized by Johns. Ch., 571. the constitution, and has been 30 Wiswell V. First Congrega- made by the law. But to allow an tional Church, 14 Ohio St., 31. injunction in a case pending in an- 31 Clark V. Young, 2 B. Mon., 57; other court would be an exercise Smith V. Blake, 96 Mich., 542, 55 of original and not of appellate N. W., 978. jurisdiction. Now the original ■f- Merrill v. Lake, 16 Ohio, 373; jurisdiction conferred upon this Kent V. Mehaffy, 2 Ohio St., 498. court by the constitution is lim- In the latter case, Thurman, J., ited to quo warranto, mandamus, pronouncing the opinion of the habeas corpus and procedendo. court, says: "That we can allow Art. 4, sec. 2. ... It would be an injunction in a case pending in wholly inconsistent with, and in a this court upon an appeal is very great measure destructive of. the clear. An injunction may be th'5 judicial system it ordains, to sup- very object of the suit — the final pose that this original jurisdiction decree sought — and so a provi- can be enlarged by law. It is true fiional injunction, during the pend- there is no express prohibition f-ncy of the suit, may be necessary against it, but none was neces- for the purposes of justice. The sary." CIlAl'. I.] GFNERAL NATURE OF WKIT. 57 court of last resort of the state to certain specified cases, not including- injunctions, and provides that in all other cases its jurisdiction shall be appellate only, it will not entertain an action for the granting of an injunction.-''' And the juris- diction of the court being thus limited and defined by the constitution, original jurisdiction can not be conferred upon it over matters of injunction by an act of legislature.^* Where, however, the power of granting injunctions is by the consti- tution of a state expressly conferred upon the supreme court of the state as a branch of its original jurisdiction, the dis- position is to limit its exercise to cases puhlici juris and not to extend relief in cases of merely private right or affecting only private parties.^^' Consequently the writ will not be granted at the instance of a private individual but only upon an information filed by the attorney-general in the name and upon behalf of the state.^*^ And it is not regarded as sufficient to set in motion such original jurisdiction that the matter is puhlici juris, but it should also be one which affects the sovereignty of the state, its franchises or prerogatives, and one in which the interest of the state is primary and not re- mote. And the restraining of local municipal taxation is not of such public importance in this sense as to set in motion the original jurisdiction of the court. But the obstruction of a navigable river within the limits of the state is a pur- presture or public nuisance of such a nature, and so directly concerning the sovereign prerogative of the state and the ■•^■■i Campbell v. Campbell, 22 111., Cunningham, 82 Wis., 39, 51 N. W., 664; Bryant v. The People, 71 111., 1133; State v. Cunningham, 83 32. Wis., 90, 53 N. W., 35, 17 L. R. A., ■•!* Campbell v. Campbell, 22 111., 145, 35 Am. St. Rep., 27; State v. 664. Morau, 24 Mont., 433, 63 Pac, 390. ^•'■> See Attorney-General v. The And see Clark v. Borough of Railroad Companies, 35 Wis., 425; Washington. 145 Pa. St., 566, 23 Attorney-General v. City of Eau Atl., 333; Bruce v. Pittsburg, 161 Claire, 37 Wis., 400; State v. Cun- Pa. St., 517, 29 Atl., 584. ningham, 81 Wis., 440, 51 N. W., •''" Anderson v. Gordon. 9 N. Dak., 724, 15 L. R. A., 561; State v. 480, 83 N. W., 993, 52 L. R. A., 134. 58 INJUNCTIONS. [CIIAI'. J. prerogative jurisdiction of the supreme court of the state under the constitution, as to warrant the exercise of its orig- inal jurisdiction to enjoin such obstruction.^^ So the matter of the qualification of the members of a state legislature and the legality of their election involves questions of such public concern and so closely aftects the sovereignty of the state as to warrant the supreme court in entertaining an original ap- plication for an injunction to restrain the secretary of state from publishing notices of an election of state senators under a reapportionment act upon the ground of the alleged uncon- stitutionality of the act.^^ And it is held under the constitu- tion of Montana that the writ of injunction, as granted by the supreme court of that state, is a jurisdictional writ and not merely a writ to be issued in cases of which the court, upon other grounds, has original jurisdiction, and conse- quently, being the arm with which the court is equipped to deal with all judicial questions relating to the sovereignty of the state, its franchises or prerogatives, or the liberties of the people, it may be granted to enjoin acts which infringe politi- cal rights as distinguished from the purely property rights with which alone equity is concerned.^^ But a mere public nuisance as such, however, aggravated, which in no way effects the sovereignty, franchises of prerogatives of the state, affords no ground for an injunction from a court of last resort.'**^ § 43. Restrictions upon jurisdiction of the courts ; prohibi- tion; powers of United States district judge. Where the cir- 37 Attorney-General v. City of City of Mineral Point, 34 Wis., 181. Eau Claire, 37 Wis., 400. See State •'« State v. Cunningham, 81 Wis., V. City of Eau Claire, 40 Wis., 533 440, 51 N. W., 724, 15 L. R. A., 561; But whether the power of grant- State v. Cunningham, 83 Wis., 90, ing injunctions as thus conferred 53 N. W., 35, 17 L. R. A., 145, 35 upon the supreme court of the state Am. St. Rep., 27. be considered as a branch of its -» State v. Morau, 24 Mont., 433, original or as auxiliary to its ap- 63 Pac, 390. pellate jurisdiction, it will not be '" /» re Hartung, 98 Wis., 140, exercised in a case still pend- 73 N, W., 988. ing in a lower court. Cooper v. CHAP. I.] GENERAL NATURE OF WRIT. 59 cuit courts of a state have under their organization no general chancery jurisdiction, their equity powers being special and limited and not including the power to grant injunctions, a statute conferring such power upon a circuit judge does not authorize the court as such to grant injunctions, a distinc- tion being taken in that regard between the court and the judge.'^i So under a statute enacting that in all cases of breach of contract the plaintiff in an action at law may pray and have an injunction against a repetition or continuance of the breach of contract, the statute is construed not to con- fer general chancery povrers upon the court of law, but only as extending to that court the remedy by injunction, without authorizing it to grant other e€[uitable relief.^- And if a court of equity in awarding an injunction proceeds without authority or jurisdiction, a writ of prohibition will lie to prevent further proceedings therein by such court.'*^ But prohibition will not lie from a superior to an inferior court to prevent the latter from proceeding wdth certain injunc- tion suits when it has undoubted jurisdiction over the sub- ject-matter.'*^ And it has been held that a district judge of the United States, while holding the circuit court, has power to grant an injunction as fully as the circuit judge or circuit justice might do ; and that the prohibition of section 714 of the Revised Statutes of the United States, providing that an injunction shall not be issued by a district judge as one of the judges of the circuit court in any case where the party 41 Cummings v. Des Moines, W inary injunction and to grant the & S. W. R. Co., 36 Iowa, 173. writ. United States v. Louisville Where all the regular judges em- & P. C. Co., 4 Dill., 601. powered to hold a circuit court of 42 Richmond v. Dubuque & S. C. the United States are absent, in- 11. Co., 33 Iowa, 422. eluding the justice of the Supreme 43 Swinburn r. Smith, 15 West Court of the United States allot- Va., 483. ted to that circuit, another justice -i^ State v. Judge of Superior of the Supreme Court has jurisdic- District Court, 29 La. An., 360. tion to hear a motion for a prelim- 60 INJUNCTIONS. [chap. I. has had reasonable time to apply to the circuit court for the writ, only limits the power of the district judge in vaca- tion, and is not a limitation upon his power when sitting as a circuit judge."*^ § 44. Supreme Court of Judicature Act in Eng-land. Under the Supreme Court of Judicature Act of 1873, the power of granting injunctions under the English practice is much enlarged, being extended in terms to all cases in which it shall appear to the court to be just or convenient ; and the court is empowered to grant the relief either unconditionally or upon such terms as shall seem just.^** And under this statute it is held that the court has unlimited power to grant an injunction in any case in which it would be right and just to do so; but what is right or just must be determined, not by the caprice of the judge, but according to sufficient legal reasons and upon settled legal principles.^'^ 45 Goodyear Dental Vulcanite Co. V. Folsom, 3 Fed., 509. 4« Supreme Court of Judicature Act, August 5, 1873. Subdivision 8 of section 25 enacts as follows: "A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the court in all cases in which it shall appear to the court to be just or convenient that such order should be made; and any such order may be made either unconditional or upon such terms and conditions as the court shall think just; and if an injunction is asked, either be- fore or at or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted, if the court shall think fit, whether the person against whom such injunction is sought is or is not in possession under any c^aim of title or other- wise (or if out of possession) does or does not claim a right to do the act sought to be restrained under any color of title; and whether the estates claimed by both or by either of the parties are legal or equitable." ■i-! Beddow v. Beddow, 9 Ch. D.. 89. And in Day v. Brownrigg, 10 Ch. D., 294, Lord Justice James observes: "I think it is right to add that the power given to the court by sec. 25, sub-sec. 8, of the Judicature Act, 1873, to grant an injunction in all cases in which it shall appear to the court to be 'just and convenient' to do so, does not in the least alter the principles on which the court should act." And Lord Jessel, Master of the Rolls, says: "It must be just as well as convenient." — CHAPTER n. OF INJUNCTIONS AGAINST ACTIONS AT LAW. I. Grounds of the Juuisuiction § 45 II. Defense at Law 8a III. Suits Pertaining to Real Property 95 IV. Suits in Foreign Courts lOiJ V. State and Federal Courts 108 I, Grounds of the Jurisdiction. § 45. Courts not enjoined, but only parties. 46. Judge not enjoined; judgment not void because of injunction. 47. General rule; fraud, accident and mistake; illustrations. 48. Litigation confined to original forum. 49. Illustrations of the rule. 50. Equity will not interfere with court first acquiring jurisdiction; illustrations. 51. Further illustrations. 52. Proceedings in court of equity not enjoined. 53. Exception to rule in actions of interpleader. 54. When actions at law growing out of proceedings in equity en- joined. 55. When new suit in equity unnecessary. 56. Requisites of bill. 57. Parties; officers of court of equity. 58. When application made in suit pending. 59. Rule as to confessing judgment at law. 60. Limitations upon the rule. 61. Bill of peace. 62. Distinction between bill of peace and action to consolidate. 63. Multiplicity of suits enjoined. 63o. The same. 64. Fears of future actions insufficient; injunction not allowed to prevent injunction; not allowed because of unconstitutional statute. 65. Multiplicity of suits further defined. 65a. The same. 66. Injunction allowed where defense can not be made at law; in- equitable defenses enjoined. 61 62 INJUNCTIONS. [chap. II. § 67. Failure of consideration as ground for enjoining suit. 68. Criminal proceedings not enjoined; nor mandamus; exceptions. 69. Suit on fraudulent foreign judgment enjoined; remedy at law defined. 70. Unconscionable bargains with expectant heirs; gambling con- tracts. 71. Actions to recover penalty formerly enjoined; bond for pur- chase of office. 72. Solicitor enjoined from acting in adverse capacity. 73. Suits against receivers, when enjoined. 74. Suits against infants, when enjoined. 75. Landlord and tenant. 76. Usurious contracts. 77. Attachment suits. 78. Awards and arbitrators. 79. Change of venue; absence of witness; statute of limitations. 80. Bond for purchase money. 81. Proceedings under United States revenue laws rarely enjoined. 82. Trust; insolvency of maker of note. 83. Effect of the injunction; mandamus not allowed. 84. Acceptance of goods from debtor; fraudulent decree; imprison- ment for debt. 85. Dismissal of suit, when enjoined; lost agreement. 86. Garnishees. 87. Effect of the injunction on statute of limitations. 88. Effect of dissolving the injunction. §45. Courts not enjoined, but only parties. No branch of the jurisdiction of equity by injunction is so frequently invoked as that which pertains to the restraint of judicial proceeding's, either before or after judgment. In the exer- cise of this jurisdiction courts of equity claim no supremacy over courts of law, since the injunction is in no sense a prohibition upon the action of the legal tribunal. The in- junction is directed, not to the court, but to the litigant par- ties, and in no manner denies the jurisdiction of the legal tri- bunal.' It merely seeks to control the person to whom it is addressed, and to prevent him from using the process of courts of law where it would be against conscience to allow him to proceed. It is granted on the ground that an unfair use is 1 Burke v. Ellis, 105 Tenn., 702, 58 S. W., 855. CHAP. II.] ACTIONS AT LAW. 63 being made of the legal forum, which, from circumstances of which equity alone can take cognizance, should be re- strained lest an injury be committed wholly remediless at law.^ And the power of courts of equity to restrain the assertion of doubtful rights in a manner productive of irreparable dam- age, and to prevent injury to a person from the doubtful title of another, is regarded as one of the legitimate functions of equity.^ §46. Judge not enjoined; judgment not void because of injunction. As already indicated the jurisdiction of equity in restraint of actions at law is exercised, not over the courts of law, but only upon the parties litigant therein. And a court of equity is devoid of jurisdiction to grant an injunc- tion against the judge of another court to restrain him from acting in or making orders in a particular cause. Every judge is supreme and independent in his own sphere, and can not be restrained in the discharge of his functions by the process of injunction. While, therefore, equity may in proper cases enjoin suitors in another court from pro- ceeding with their cause, the injunction can not operate upon or run against the judge of such court."* And since the injunction is not operative upon the court, but only upon the party litigant to whom it is directed, if the court in which the action enjoined is pending has jurisdiction of the sub- ject and of the parties, its judgment will not be held void be- cause of an injunction restraining the prosecution of the 2 2 story's Eq., §875; Hill v. doctrine; and it may be regarded Turner, 1 Atk., 516; Tyler v. Ham- as the well settled practice of ersley, 44 Conn., 419. In Williams courts of equity to interfere, on V. Sadler, 4 Jones Eq., 378, it is proper cause shown, at any stage held that the ordinary and usual of the proceedings, without wait- course is to allow proceedings as ing for judgment to be had. far as judgment, and to interfere '-^ Hen wood v. Jarvis, 12 C. E. only for the purpose of enjoining Green, 247. the execution. I am not aware of ■* Sanders v. Metcalf, 1 Tenn. Ch., any other authority holding this 419. 64 INJUNCTIONS. [chap. II. cause.-'"' Thus, iu New York, where law and equity jurisdic- tion are both administered by one and the same tribunal, it is held that a judge holding a law court is not divested of his jurisdiction to proceed with actions pending therein because another judge of the same court has, in the exercise of his equity powers, enjoined the proceedings at law.*^ § 47. General rule ; fraud, accident and mistake ; illustra- tions. In general it may be said that where through fraud, accident or mistake such an advantage will be gained in a suit at law as will render it an instrument of great injustice, and it is against conscience to allow the suit to proceed, equity will interfere by injunction." Thus, a suit on an indemnity bond has been enjoined where it had been given through mistake, the obligor supposing he was signing a recognizance.* And where the contract on which a suit is brought was en- tered into on mistaken and false representations, the pro- ceedings may be enjoined.'' So a suit upon promissory notes is properly enjoined where it appears that the notes were given in exchange for an interest in certain other notes which had been obtained through fraudulent representations in a sale of patent-rights.^*^ And where fraud is relied upon as the ground for relief, it is not necessary that the facts should be proved precisely as alleged, but it will be sufficient if they are proved in substance.^ ^ So undue influence exercised upon the maker of a note, who was a person of weak intellect and constantly given to intoxication, has been deemed suf- ficient ground for restraining a suit upon the note.^^ But fi-audulent representations made by the payee to the maker • Piatt V. Woodruff, 61 N. Y., « Field v. Cory, 3 Halst. Ch., 574. 378. !' Dale v. Roosevelt, 5 Johns. Ch., '•• Id. 174. ' 2 Story's Eq., § 885; Sackett i'. '" Sackett v. Hillhouse, 5 Day, Hillhouse, 5 Day, 551; Dale v. 551. Roosevelt, 5 .Johns. Ch.. 174; Fiel'.l 'i Id. V. Cory, 3 Halst. Ch.. 574. i-' Rembert v. Brown, 17 Ala., 667. CHAP. II.] ACTIONS AT LAW. 65 of a promissory note will uot warrant an injunction against a suit by a bona fide holder of the note for valuable con- sideration. ^^ Nor will the prosecution of a writ of error to a judgment be enjoined because of mistakes in the bill of ex- ceptions, no fraud being shown.^^ The injunction will be dis- solved where the answer fully disproves the allegations of fraud, and shows a bona fide debt and full consideration, it not appearing that the suits, though several in number, were vexatious or malicious.^'"' And to warrant the interference, a clearly established case of fraud, accident or mistake must be shown, sufficient to deprive the person aggrieved of a de- fense at law.^** The loss of one conveyance in a chain of title is sufficient to warrant equity in enjoining proceedings at law to get possession of the premises, as well on the ground of accident whereby a defense can not be perfectly made at law, as from the necessity of preventing a cloud upon title.^^ i:' Dougherty v. Scudder, 2 C. E. Green, 248. 14 Ford V. Weir, 24 Miss., 563. 15 Jackson v. Darcy, Saxt., 194. 16 Rogers v. Cross, 3 Chand., 34. 17 Butch V. Lash, 4 Iowa, 215. But see, contra, Rogers v. Cross, 3 Chand., 34. Butch v. Lash illus- trates very clearly some of the grounds upon which equity will interpose to stay proceedings at law. Complainant in the injunc- tion suit being sued at law for the recovery of certain real estate, and his chain of title being defective, one deed therein having been lost before recorded, the court below decreed a perpetual injunction against the proceedings at law. The decree was affirmed by the ap- pellate court, Wright, C. .J., say- ing: "The respondent's action was brought to test the legal title 5 to this property, and in the legal forum he was entitled to succeed, if his title, in this respect, was superior to that of complainant. Owing to the loss and failure to re- cord the deed to Linder, com- plainant was unable to show a complete chain by the title papers or record; and, under such cir- cumstances, we think he was fully justified in asking equitable aid to ascertain the existence of such deed. We can not say that his defense would have been adequate and complete at law. But a fur- ther and conclusive consideration in favor of the bill is that com- plainant asked equitable interpo- sition on the ground of accident, and to remove a cloud upon his title. To relieve against an injury resulting from accident is a very ancient branch of equitable juris- 66 INJUNCTIONS. [chap. II. § 48. Litigation confined to original forum. The propriety *■ of confining litigation to the forum in which it is first com- menced has repeatedly been recognized by courts of equity, and an injunction will generally be allowed to prevent either party from removing the litigation into another court.^^ Especially will the jurisdiction be exercised to restrain one from the removal of his cause after an adverse decision in the court to which he had first resorted.^ ^ Nor is the ap- plication of the rule affected by the fact that the court sub- sequently acquiring jurisdiction of the subject-matter, and in which the proceedings are sought to be enjoined, has equity as well as common law powers. ^^ In all such cases the parties will be left to contest their rights in the original forum, since any other rule would necessarily lead to great abuse and render chancery an instrument of great injustice.-^ § 49. Illustrations of the ride. Illustrations of the rule as above stated are frequent, but they are all based upon the propriety, and indeed the necessity, of confining litiga- tion to the tribunal in which it is first instituted. And where the subject-matter of a litigation is already pending in equity, and it has full and complete jurisdiction and ample power to afford relief, it will not permit the litigation to be trans- ferred to another forum, and will by injunction prevent a party to the cause from afterward proceeding in an action diction. . . . The loss of the is Conover v. Mayor, 25 Barb., deed is expressly shown by the 531; Crane v. Bunnell, 10 Paige, complainant's sworn bill; there is 333. See also Horn v. Kilkenny no pretense that it occurred from R. Co., 1 Kay & J., 399; Hadfleld any negligence or misconduct on v. Bartlett, 66 Wis., 634; 29 N. W., his part. The respondent had pro- 639. cured a conveyance from the i» Conover v. Mayor, 25 Barb,, county, which was a cloud upon 531. complainant's title; and to avoid 20 id. the effect of this loss, and remov-, -1 Crane v. Bunnell, 10 Paige, this cloud, he might reasonably 333. and properly ask relief at the hands of the chancellor." CHAP. II.] ACTIONS AT LAW. 67 at law concerning the same subject-matter. Thus, pending a bill in equity to enforce specific performance of a contract to convey lands, the court may enjoin the defendant in that action from suing at law to recover damages for a breach of the same contract.-^ So where proceedings in equity have gone so far as to reach a decree for an accounting, the court will enjoin the plaintiff in that action from proceeding at law touching the same matter."^ So creditors of a railway com- pany, who have taken proceedings against it in a state court to enforce a statutory lien for labor performed in the con- struction of the road, having invoked the jurisdiction of that court and submitted their rights to its decision, may be enjoined from instituting proceedings in bankruptcy against the company, to the great prejudice and damage of other creditors, when they may have full and complete justice in the original suit.^^ And it is to be observed that, in cases of this nature, the court of equity having already jurisdiction of the subject-matter and of the parties to the cause, it is not necessary that a new action should be begun for the pur- pose of obtaining the preventive relief which is sought. And M'here, after instituting his action in equity, complainant sues at law concerning the same matter, he may be enjoined from proceeding at law merely upon motion of defendant in the original suit.^^ But the fact that a bill in equity is pending in another state concerning the same subject-matter affords no ground for enjoining a suit at law, even though the parties to the action at law are also parties to the suit in equity in the foreign state.^* ? 50. Equity will not interfere with court first acquiring jurisdiction; illustrations. While courts of equity, as is thus 22 Blakeney v. Hardie, I. R. 7 25 Wilson v. Wetherherd, 2 Eq., 472. Meriv., 406. 23 Mocher v. Reed, 1 Ball & B., 26 insurance Company v. Brune's 318. Assignee, 6 Otto, 588. 2* Pusey V. Bradley, 1 Thomp. & C, 661. 68 INJUNCTIONS. [chap. II. shown, are averse to permitting their jurisdiction, when it has once attached, to be usurped by other tribunals, they will not, upon the other hand, interfere with proceedings in other courts of competent jurisdiction which have first acquired control over the subject-matter and the controversy, or with the proceedings of courts of special and peculiar jurisdiction created for particular purposes or with special and peculiar powers.-'^ And where the jurisdiction of courts of law and equity is concurrent over the subject in controversy, and the court of law has first acquired jurisdiction by an action brought in that forum, equity will refuse to enjoin the ac- tion at law when there is no obstacle to obtaining complete relief in that proceeding.-^ So where an application is prop- erly pending in a probate court for a new trial in a pro- ceeding for the probate of a will which has been refused by the court, equity will not entertain a bill to enjoin the parties from further litigating in the probate court, but will leave that tribunal to proceed with and determine the application for a new trial.^^ And where a question as to the disposition of lands of an intestate is pending in the proper court of probate, which has full jurisdiction in the premises, and from whose orders the right of appeal exists, equity will not enjoin one claiming a share in the estate from asserting his rights in that proceeding, but will leave the question to be determined by the probate court.'^*^ Nor will a court of equity interfere b}' injunction with the action of a court-martial, which is invested by the laws of the state with jurisdiction -< Johnston v. Young, I. R. 10 ecutor in trust, would enjoin a Eq., 403; Kinney v. Redden, 2 suit in the ecclesiastical court for Del. Ch., 44; Morgan v. Morgan's a legacy, notwithstanding theorig Adm'r, 50 Ala., 89; Perault v. inal jurisdiction of that court in Rand, 10 Hun, 222. legacies, the relief heing allowed -''.Johnston v. Young, I. R. 10 upon the ground that trusts were Eq., 403. properly cognizable only in equity. -'■> Morgan v. Morgan's Adm'r, .50 Anon., 1 Atk., 491. Ala., 89. But the English Court -" Kinney v. Redden, 2 Del. Ch., of Chancery, upon a bill by an ex- 44. CHAP. II.] ACTIONS AT LAW. 69 over military offenses, since the orderly administration of the law requires that the person against whom proceedings are instituted should assert his defense in the tribunal having jurisdiction over the matters in controversy .-'^ But an in- junction has been granted to stay proceedings in a court of admiralty upon the ground of newly discovered evidence, dis- covered at a stage of the proceedings when, by the rules of the admiralty court, no new evidence could be received."^^ § 51. Further illustrations. Ui)on principles similar to those which have been above discussed and illustrated it is held that where the rights of complainant, upon which he bases his application for an injunction, are already pending in another court having full jurisdiction of the matter in- volved, and that litigation has proceeded so far that the par- ties to the controversy have been heard and only await an adjudication, a court of equity will not assume jurisdiction or grant an interlocutory injunction, but will leave complain- ant to his remedy in the action already pending.^^ And equity will not interfere by injunction to restrain the taking out of letters of administration in the probate court when the con- troversy concerning the administration of the estate can be properly determined there, and when the court of equity itself has no power to grant administration.^-* And the English Court of Chancery, at an early day. refused an injunction upon a bill to set aside a will of personal estate for fraud upon the ground that the spiritual court had jurisdiction of the controversy .•'•'* § 52. Proceedings in court of equity not enjoined. It is also a well established rule pertaining to that branch of the jurisdiction of equity under discussion, that an injunction will :" Perault r. Rand. 10 Him, 222. ■■* Wilcocks v. Carter, L. R. 10 32Jarvis v. Chandler, Turn. & Ch., 440. R-, 319. ^r, stephenton v. Gardiner. 2 P. •■!3 New Jersey Z. Co. v. Franklin Wms., 286. As to the circum- Iron Co., 29 N. J. Eq., 422. stances under which a court of 70 INJUNCTIONS. [chap. II. not be granted to stay proceedings in the same court of equity, either upon the application of parties to the proceed- ings sought to be enjoined, or of strangers to such proceed- ings, since a departure from the rule would lead to intermin- able litigation.3^ A court of equity will not, therefore, en- join the prosecution of another bill in equity, or stay pro- ceedings in another equitable action in the same court, when no reason is sho-\\Ti why the party aggrieved can not protect himself by interposing his defense in the former suit, since the defendant in the original suit can ordinarily avail him- self of all his equities and defenses with full effect in that action.2'^ § 53. Exception to rule in actions of interpleader. While, as is thus sllo^\^l, a court of equity will not ordinarily inter- fere by injunction with proceedings in another cause in equity, an exception to the rule is recognized in actions of interpleader, growing out of the peculiar nature of such ac- tions and the necessity of drawing the entire litigation into the one principal action. And where in a bill of interpleader one of the defendants is suing plaintiff in equity, and another is proceeding against him in an action at law, it is proper to enjoin the proceedings both in equity and at law.^^ And when an interlocutory injimction is obtained in an action of equity may enjoin proceedings in it is held in Minnesota that an in- a surrogate's court, under the New junction may be granted in one Ycrrk practice, in behalf of an ad- equitable action to restrain pro- ministrator, see Wright v. Flem- ceedings in another equitable ac- Ing, 76 N. Y., 517. tion pending in the same court, 36 Smith V. American Co., 1 when the party aggrieved can not Clarke Ch., 307; Lane v. Clark, have full and adequate relief by lb., 310; Redd v. Blandford, 54 intervening in the original suit. Ga., 123; Dayton v. Relf, 34 Wis., Mann v. Flower, 26 Minn., 479; 5 86. And see Schell v. Erie R. Co., N. W., 365. 51 Barb., 368; Erie R. Co. v. Ram- •>« Crawford v. Fisher, 10 Sim., sey, 57 Barb., 449; Jackson v. 479; Prudential Assurance Co. v. Leaf. 1 Jac. & W., 229. and notes. Thomas, L. R. 3 Ch. App., 74; •TT Redd V. Blandford, 54 Ga., 123; Warington v. Wheatstone, Jac, Dayton v. Relf. 34 Wis.. 86. But 202. CHAP. II.] ACTIONS AT LAW. 71 interpleader to restrain further proceedings at law, and there appears to be a serious question to be determined upon the hearing, it is proper to continue the injunction until the final hearing.^^ § 54. When actions at law growing out of proceedings in equity enjoined. Courts of equity are disinclined to permit their proceedings to be called in question by courts of law, and it has been held, where actions at law were brought by one complaining of the execution of process from the court of chancery, that an injunction might properly issue to re- strain the prosecution of the actions at law.'*^ Where, how- ever, an action at law for damages for false, imprisonment is brought for having irregularly issued an attachment in a chancery proceeding, equity will not restrain the parties from proceeding at law, although they are subject to the jurisdic- tion of the court, if serious and substantial injury has been sustained.^i § 55. When new suit in equity unnecessary. In the exer- cise of its jurisdiction to restrain proceedings at law a court of equity usually requires that a bill should be filed, or an independent suit instituted for the purpose of obtaining re- lief by injunction. This course is, however, unnecessary when a suit in equity is already pending in which the necessary relief may be had. And where a bill for an injunction against an action at law discloses the pendency of a prior suit in equity pertaining to the same subject-matter, and in which the relief sought by injunction in the new suit might have been obtained by motion or petition in the cause, an injunc- tion granted in the second cause will be regarded as impro- vidently allowed, and will be accordingly dissolved.'*^ 39 Cochrane v. O'Brien, 6 Ir. Eq., •*! McKinnon v. Palmer, 7 Ir. Eq.,' 312. 496. 40 Walker v. Mlcklethwait, 1 « Washington v. Emery, 4 Jones Drew. & Sm., 49. Eq., 29. 72 IXJUXCTIOXS. [chap. 11. § 56. Requisites of bill. The bill should show the precise state of the pleadings in the suit which it is sought to en- join, as well as the court in which the suit is pending, to enable the officer granting the injunction to judge of its pro- priety and to fix the terms upon AA'hich the relief will be al- lowed.^2 And if, in addition to the prayer for injunction, the bill prays for a discovery of matters material to the defense of the suit at law, the nature of the defense at law must clearly appear in the bill before equity w^ill enjoin the suit."*^ So, also, in addition to the nature of the suit and the court in which it is pending, the bill should show the date when it was begun, the various steps taken in the cause, and especially the defenses made, if any, and all the facts necessary to show that injustice would be done complainant, or that he would be deprived of some legal or equitable right, if his adversary were permitted to proceed to judgment at law.-*^ § 57. Parties ; officers of court of equity. As regards the parties for and against whom the jurisdiction Avill be exer- cised, it is to be remarked that an injunction will not be granted in aid of a suit against one not a party to the suit.^*^ Nor will the relief be allowed in behalf of one not a party to the suit sought to be enjoined.^" But the jurisdiction of chancery to restrain suits at law against its officers acting under its direction is old and well established, and will be exercised even though the parties by whom the proceedings at law are instituted are not parties to the suit in chancery.'*'* And where one has instituted a suit in the name of another, ^•■' Carroll v. Farmers & M. ■»(. Chamblin r. Slichter, 12 Minn., Bank, Harring. (Mich.), 197; 276. Chadwell v. Jordan, 2 Tenn. Ch., ^^ New York r. Connecticut, 1 63.5. Ball., 1. ^•Molntire v. Mancius, 3 .Johns. ^m Bailey v. Devereux, 1 Vern., Ch., 45. 269; Frowd f>. Lawrence, 1 Jac. & ^••Chadwell r. .Jordan, 2 Tenn. W., 655; Ex parte Clarke, 1 Russ. Ch., 635. & M., 563. CHAP. II. J ACTIONS AT LAW. . 73 but without his consent and without authority, either legal or equitable, the proceedings may be enjoined.^'' § 58. When application made in suit pending. Where it is sought to stay or enjoin proceedings in equity by one who is a party or privy to the proceedings, the application should be made directly to the court itself in the action pending, and an officer outside of court has no authority to enjoin such proceedings.^^ § 59, Rule as to confessing judgment at law. It has been frequently held that one who comes into equity for relief against proceedings at law, and who seeks to enjoin such proceedings, will be granted relief only upon condition of his first confessing judgment at law.''^ The principle upon which the rule is based is said to be that whenever a person resorts to equity for substantive relief against a claim as- serted at law he must submit himself entirely and without reserve to the jurisdiction of the chancellor.^2 ^i^^ rule, however, if rule it may be called, is by no means inflexible ; and where one has a distinct ground of equitable relief aside from his defense at law, he is not obliged to abandon his legal defense by confessing judgment before proceeding in equitj' to enjoin the suit at law.^^ But where complainant in his bill expressly offers to withdraw his defense at law and submit to judgment, for the reason that his relief is alone in equity, he is entitled to an injunction.'"-* § 60. Limitations upon the rule. The better doctrine un- doubtedly is that the question of requiring a defendant at law, who seeks upon equitable grounds to enjoin the action ^^ Ex parte Merrit, 5 Paige, 125. dan, 2 Tenn. Ch., 635; Haynes v. •'i" Dyckman v. Ke'-nochan, 2 Bank, 106 Tenn., 425, 61 S. W.. Paige, 26; Ellsworth v. Cook, 8 775. Paige, 643. ^•- Warwick r. Norvell, 1 Leigh. •'•1 Warwick v. Noi-vell, 1 Leigh. 96. 96; Mathews v. Douglass, Cooke "^^ Warwick v. Norvell, 1 Rob. (Tenn.), 136; Conway v. Ellison, (Va.), 308; Dudley v. Miner'.s 14 Ark., 360; Nelson v. Owen, 3 Ex'rs. 93 Va., 408, 25 S. E., 100. Ired. Eq., 175; Chadwell v. Jor- ■■^Hodges, Ex parte, 2i Ar'k.., 197. 74 INJUNCTIONS. [chap. II. against him, first to confess judgment at law as a condition to relief in equity, rests in the discretion of the court, to be exercised according to the circumstances of the case upon well defined principles of equity and law. The object to be attained in such cases is to preserve the rights of the person enjoined, and at the same time to inflict no wrong upon him who seeks relief in equity. The court should not require the defendant at law to confess judgment if such course would manifestly endanger his rights, or when his bill wholly de- nies the right of the plaintiff at law to recover. And if the injunction is granted upon such terms, the confession should be required only upon terms of the judgment being afterward dealt with as the court of equity may direct.^^ "Where, there- fore, defendant at law has been allowed an injunction against the action upon condition of his confessing judgment therein, and the injunction is afterward dissolved for want of equity, plaintiffs in the action at law should be required to withdraw the judgment which they have thus obtained, in order that the cause may be tried at law upon its merits.^^ But where, after the confession of judgment by the defendant in the suit at law, his bill is dismissed for want of equity and he there- upon moves to set aside the confession, it is incumbent upon him, in order to sustain such motion, to show clearly a good legal defense to the action ; otherwise the motion should be denied.-'"'^ And upon a bill by plaintiff in an action at law to enjoin defendant in that action from making defense there- to, it is improper to grant such injunction and yet to allow plaintiff to proceed with his action at law.-'^^ ■'■'■''' Great Falls Manufacturing v. Henry's Adm'r, 25 Grat., 575; Co. V. Henry's Adm'r, 25 Grat., Tliornton v. Thornton, 31 Grat., 575; Thornton v. Thornton, 31 212; Hooper t?. Cooke, 25 li. J. Ch., Grat, 212; Dudley v. Miner's 467; S. C, 2 Jur. N. S., 527. Ex'rs, 93 Va., 408, 25 S. B., 100; "Robinson r. Braiden. 44 West Parsons v. Snider, 42 W. Va., 517. Va., 183, 28 S. E., 798. 26 S. E., 285. See also Warwick -« .Jones v. Ramsey, 3 BraJw., V. Norvell, 1 Leigh, 96. 303. ■''« Great Falls Manufacturing Co. CHAP. II.] ACTIONS AT LAW. 75 § 61. Bill of peace. Equity will interfere to restrain pro- ceedings at law upon a bill in the nature of a bill of peace, whose object is to restrain useless and vexatious litigation and to prevent a multiplicity of suits.^^ But a bill of peace will usually be entertained only in two classes of cases : first, where complainant has already sufficiently established his right at law;®^ and second, where the persons controverting the right are so numerous as to render the injunction necessary for the prevention of a multiplicity of suits.^^ And where the suit is between two persons, and but one trial at law has been had, the relief will not be granted.*^^ But two verdicts upon the merits in favor of complainant, one of them being upheld and affirmed, will suffice to warrant the court in entertaining a bill of peace, other suits having been brought and dismissed.*'^ And where the right has been satisfactorily established at law, it is held to be quite immaterial what number of trials have 59 Dedman v. Chiles, 3 Monr., 426; Woods v. Monroe, 17 Mich., 238; Coville v. Gilman, 13 West Va., 314. And see Morse v. Morse, 44 Vt, 84; Allen v. Donnelly, 5 Ir. Ch., 229; Bishop v. Rosen- baum, 58 Miss., 84. 60 Eldridge v. Hill, 2 Johns. Ch., 281; West v. Mayor, etc., 10 Paige, 539; Dedman v. Chiles, 3 Monr., 426; Lapeer Co. v. Hart, Harring. (Mich), 157; Paterson & H. R. R. Co. V. Jersey City, 1 Stockt, 434; Poyer v. Village of Des Plaines, 123 111., Ill; Chicago, B. & Q. R. Co. V. Ottawa, 148 111., 397, 36 N. E., 85. And an injunction has been granted in a bill in the na- ture of a bill of peace to restrain the bringing of repeated actions at law pending an appeal by com- plainant from a judgment ren- dered against him in an unsuccess- ful attempt in one of the suits to establish his right at law, such judgment being res adjudicata and therefore estopping him from raising his defense in the subse- quent actions. Norfolk & N. B. H. Co. V. Arnold, 143 N. Y., 265, 38 N. E., 271. 61 Eldridge v. Hill, 2 Johns, Ch , 281; West v. Mayor, etc., 10 Paige. 539; Bath v. Sherwin, 1 Prec. Ch , 261; Ewelme Hospital v. Andover, 1 Vern., 266; Trustees, etc. v. Nicoll, 3 Johns., 566; Tenham v. Herbert, 2 Atk., 483; Poyer v. Village of Des Plaines, 123 111.. Ill; Chicago, B. & Q. R. Co. v. Ottawa, 148 111., 397, 36 N. E., 85. 62 Eldridge v. Hill, 2 Johns. Ch., 281. 63 Dedman v. Chiles, 3 Monr., 426. 76 INJUNCTIONS. [CIMPII taken place, whether two only or niore.*^"* But the rule re- quiring the right to be first established at law has no applica- tion where, from the nature of the ease, the plaintiff can have no opportunity so to establish it. Thus, where the plaintiff is in possession of real property with respect to which the defendant, under claim of title, is bringing repeated actions of trespass in which the question of title can not be adjudi- cated, the plaintiff' may invoke the aid of equity to prevent a multiplicity of suits in the first instance since there is no form of action of a legal nature in which he can first establish his right/'"' Where there is one general right connnon to a number of persons, one person claiming or defending the right against many, or many against one, equity will inter- fere and determine the right in order to prevent vexatious litigation and multiplicity of suits/'*' Thus, where one is in possession of land, with complete legal title, though not all appearing of record, he may enjoin a number of ejectment suits brought by others against him as to a portion of the premises, since the question is the same as to all of the prem- ises, and may be determined by the chancery proceeding, and thus avoid a multiplicity of suits/'^ So where numerous in- dividuals have commenced separate actions at law against a railway company to recover a penalty created by statute for a refusal to grant stop-over privileges, the same general right being asserted upon the one side and denied upon the other in all the suits, equitable relief is properly granted against the prosecution of the actions at law in order to avoid the hardship and oppression thus resulting from a nuiltiplicity of suits/"^ And where there are numerous conflicting claims 'i* Paterson & H. R. R. Co. v. inson, 132 Cal., 408, 64 Pac, 572; Jersey City, 1 Stockt., 434. National Park Barfk v. Goddard. 'i-i Langdon v. Templeton, 61 Vt. 131 N. Y., 494. 30 N. E.. 566. 119, 17 Atl., 839. «T Woods v. Monroe, 17 Mich., <■■<■• Tf nham v. Herbert, 2 Atk., 238. 483; Woods v. Monroe, 17 Mich, '^"^ Southern Pacific Co. v. Rob- 238; Southern Pacific Co. v. Rob- inson, 132 Cal., 408, 64 Pac, 572. CHAP. II.] ACTIONS AT LAW. 77 to the same property which a court of law could not settle or adjudicate without working great injustice, all such claims being founded upon a single, continuous, fraudulent scheme which inflicts a similar injury to all, differing only in de- gree, equity may interfere by injunction and take jurisdic- tion of the entire controversy in a suit brought by one claim- ant to the property in dispute to enjoin the prosecution of numerous separate actions of replevin brought by various other claimants.^^ § 62. Distinction between bill of peace and action to con- solidate. A distinction, however, is to be taken between a bill of peace, proper, of which equity will entertain jurisdiction, and one whose object is merely to procure a consolidation of the suits, which can be attained as well at law as in equity. Thus, where an injunction was asked to restrain proceedings in ninety-two suits in ejectment, the parties, pleadings, title and testimony being the same in all the cases, until one or more could be tried, since the object of the bill was merely to obtain a consolidation of the suits, and a court of law was equally competent to give the relief an injunction was re- fused.'^*^ And an injunction is properly dissolved which staid proceedings in sixty-seven suits on county orders brought in one day against the county commissioners, since the defense Avas at law and should be made there.'^^ Nor will a bill of peace ordinarily be entertained where the right in question is litigated between only two persons, and the decree of a court of equity would affect no others.' - § 63. Multiplicity of suits enjoined. Where, however, a large number of suits are pending between the same parties «'•' National Park Bank v. God- ^i Lapeer Co. v. Hart, Harring. dard, 131 N. Y., 494, 30 N. E., (Mich.), 157. 566. 7- Eldridge v. Hill, 2 Johns. Ch., '"Peters v. Prevost, 1 Paine's C. 281; Tenham v. Herbert, 2 Atk.. C, 64. Whether in such case the 483; Cowper v. Clerk, 3 P. Wms., injunction would be allowed 157; Kinkaid v. Hiatt. 24 Neb., against the remaining suits after 562, 39 N. W., 600. several verdicts, quare. 78 INJUNCTIONS. [chap. II. and concerning the same subject-matter, and the court in which they are pending has no power to order a consolida- tion of the actions, a bill for an injunction will lie to prevent the hardship and oppression of a multiplicity of suits. Thus, where seventy-seven actions had been begun against a street railway company in a justice court by the municipal authori- ties of a city to recover separate penalties for the running of ears without a license, the question to be determined being the same in all the suits, it was regarded as an appropriate case to enjoin all the suits but one, additional ground for the relief being found in the fact that the justice court was powerless to relieve by consolidating the actions.'^^ And the bringing of repeated suits weekly for the recovery of wages claimed to be due to an employee weekly, under a contract for labor, has been held sufficient to warrant an injunction to prevent a multiplicit}^ of suits.'^^ So upon a bill to enjoin the collection of a promissory note already in suit, and to restrain defendant from transferring other notes of the same character not yet due, an injunction is proper for the purpose of pre- venting a multiplicity of suits upon the several notes, and in order that the whole matter may be determined upon the pro- ceeding in equity.'^^ So equity may enjoin the bringing of successive and repeated actions at law for the recovery of in- stallments of royalty claimed to be due until a final determina- tion of an appeal from a judgment rendered against complain- ant in an action brought for the recovery of one of the in- stallments, where the same defense is relied upon in each suit and- complainant is estopped by the judgment in the first suit from maintaining that defense in the subsequent actions. But the relief in such a case should be granted only upon such terms as will adequately protect the defendant in '" Third Avenue R, Co. v. Mayor ^4 Tarbox v. Hartenstein, 4 Bax- of N. Y., 54 N. Y., 159. See also ter, 78. Galveston, H. & S. A. R. Co. v. ^r. Zeigler v. Beasley, 44 Ga., 56. Dowe, 70 Tex., 5, 7 S. W., 368. CHAP. II.] ACTIONS AT LAW. .79 case the appeal should finally be decided adversely to the complainant.^^ And where the plaintiff had guaranteed the principal and interest of several hundred bonds which were in the hands of numerous holders and it was claimed that the guarantee was not binding for reasons which were applicable to all of the bonds alike, it was held that the plaintiff was entitled to the interposition of equity by injunction to prevent the hardship w^iich would result from being compelled to raise such common defense in a multitude of separate actions at law brought by the several holders of the bonds.'^^ § 63 a. The same. Indeed, the courts have gone so far in their endeavor to prevent useless and vexatious litigation as to hold in cases where numerous separate actions at law are about to be commenced by a single individual against each of a large number of persons, all involving the decision of the same questions of law and fact, that such parties may unite in a bill to enjoin the commencement and prosecution of such suits notwithstanding the fact that each of the com- plaining parties will be subjected to the defense of but a single legal action. In other words, the court entertains jurisdiction for the purpose of preventing a multiplicity of suits although the person who will be subjected to the burden of a multi- plicity of suits is making no complaint. Thus, where a city was about to commence separate actions at law against each of a large number of individuals for the recovery of a penalty imposed for failure to comply with the terms of an alleged illegal ordinance, it was held that they could unite in a single bill in equity to enjoin the prosecution of such actions, not- withstanding that each of the complainants could have set up the invalidity of the ordinance as a defense to the prosecu- tion against him and would thus have been burdened with the defense of but a single action.'^s go where a single plaintiff 76 Norfolk & N. B. H. Co. v. Ar- v. Ohio V. I. & C. Co., 57 Fed., 42. nold, 143 N. Y., 265, 38 N. E., 271. ^s city of Chicago v. Collins, 175 " Louisville, N. A. & C. Ry. Co. 111., 445, 51 N. E.. 907, 49 L.. R. A.. 80 INJUNCTIONS. [chap. II. was about to commence separate actions of ejectment against each of several defendants, in all of wliich the issues would depend upon the same questions of law and upon an identical state of facts, the injunction was granted restraining the prosecution of the ejectment suits pending a hearing of the entire controversy in equity."'* So where the owner of a building which had been destroyed by fire had commenced separate actions at law against each of several insurance com- panies to recover the insurance, the policies being all alike and the same defense being interposed in each case, it was held the companies could enjoin the prosecution of the actions at law and have the controversy determined in equity.^^ The contrary and unquestionably the better view has been adopted by other courts which hold that where the complainant or each of a number of co-complainants will be subjected to the defense of but a single action at law, no case is presented for the interposition of equity to prevent a multiplicity of suits. These courts apply the fundamental rule forbidding inter- ference by injunction where the legal remedy is adequate and the mere fact that other persons may likewise be com- pelled each to defend a suit involving substantially the same questions of law and fact creates no such equity upon the part of the defendants as will justify the exercise in their behalf of the restraining power of the court and the deter- 408, 67 Am. St. Rep., 224; Wilkie large number of individuals, V. City of Chicago, 188 111., 444, 58 where the validity of the ordi- N. E., 1004, 80 Am. St. Rep., 182. nance could be as well determined If the city were harassing a single in a single one, thereby subject- defendant with useless and re- ing itself to useless and unneces- peated prosecutions notwithstand- sary costs, a tax payer might pos- ing the illegality of the ordinance, sibly maintain a bill to restrain such defendant, having first estab- the misapplication of public funds, lished his right in one of the ac- th Osborne v. Wisconsin Central tions, might be entitled to relief R. Co., 43 Fed., 824. by a bill of peace. And if the city ""' Tisdale v. Insurance Co., were about to commence separate (Miss.) 36 So., 568. prosecutions against each of a CHAT. 11. J ACTIONS AT LAW. 81 inination of all the issues in a single chancery proceeding. The doctrine as thus announced is undoubtedly correct upon principle and is supported by the better considered adjudica- tions.^^ § 64. Fears of future actions insufficient ; injunction not al- lowed to prevent injunction; not allowed because of uncon- stitutional statute. It is to be observed, however, that mere apprehensions or fears on the part of the person seeking re- lief that the defendant may institute actions against him in the future will not warrant a court of equity in enjoining the bringing of such actions.^- Nor will a court of equity powers grant an injunction for the purpose of preventing defendant in the injunction suit from bringing an action for an injunc- tion against complainant in that suit, since equity will not entertain jurisdiction upon the ground that another court of competent jurisdiction may decide improperly.^^ Especially will the relief be refused in such case when a defendant in an action is expressly authorized by statute to apply to the same court for an injunction concerning the subject-matter in controversy .8^ Nor will the court enjoin threatened prose- cutions at law upon the ground of the unconstitutionality of an act of legislature under which the prosecutions are about to be brought, since such alleged unconstitutionality can not of itself be made a ground of equitable jurisdiction.^^ § 65. Multiplicity of suits further defined. It is also to be borne in mind that relief by injunction for the prevention of a multiplicity of suits is allowed only when the subject- matter of the various litigations as well as the parties thereto 81 Turner v. City of Mobile, 135 reversing S. C, 7 Lans., 151; Wal- Ala., 73, 33 So., 132; Scottish lack v. Society, 67 N. Y., 23; Wil- IJnion Insurance Co. v. Mohlmaa liams v. Brown, 127 N. C, 51, 37 Co., 73 Fed., 66; Winslow v. Jen- S. E., 86. ness, 64 Mich., 84, 30 N. \V., 905; ss id. Douglass V. Boardman, 113 Mich.. »* Wallack v. Society, 67 N. Y., 618, 71 N. W., 1100. 23. 82 Wolfe V. Burke, 56 N. Y., 115, ss id. 6 82 INJUNCTIONS. [chap. II. are substantially the same. And the fact of different suits having- been brought, each having a distinct object, founded on distinct and separate ground, and brought by different per- sons does not constitute such a multiplicity of suits as to bring the case within the rule and to warrant an injunction.^^ And the pendency of other actions brought by various per- sons against a defendant for the same subject-matter, in the same and other states affords no ground for enjoining the prosecution of a suit against liim.^''' § 65 a. The same. It is to be observed that in order to justify relief by injunction for the prevention of a multiplicity of suits, there must be some common subject-matter in con- troversy or some common right or interest therein, and that without this, a mere community of interest in the questions of law and fact to be determined constitutes no basis for equitable relief.^^ Thus, where numerous actions at law have been brought by separate plaintiffs against the same defend- ant to recover damages resulting from a fire started by sparks from complainant's locomotive, the mere fact that the ques- tions of law and of fact are the same in all the actions and that the various parties have a common interest in those ques- tions will not authorize an injunction against the prosecution of the actions and the determination of the issues in equity .^^ Where, however, the questions in controversy in numerous actions at law brought by various plaintiffs all depend for their solution upon an act which is present and continuing and which therefore may give rise to continuous and repeated litigation, and where, in addition to a common interest in the questions of law and fact involved, there is a community 86 Haines v. Carpenter, 91 U. S., town Sulphur, C. & I. Co. v. Fain, 254. 109 Tenn., 56. 70 S. W., 813; Tur- 87 Lightfoot V. Planters Bank- ner v. City of Mobile, 135 Ala., 73, ing Co., 58 Ga., 136. 33 So., 132. ssTribette v. I. C. R. Co., 70 «'■» Tribette v. I. C. R. Co., 70" Miss.. 182, 12 So.. 32, 19 L. R. A., Miss., 182, 12 So., 32, 19 L. R. A., 660. 35 Am. St. Rep., 642; Duck- 660. 35 Am. St. Rep., 642. CHAP. II.] ACTIONS AT LAW. 83 of interest or a common right or title in the subject-matter of the controversy, equity has jurisdiction to enjoin the pros- ecution of the actions at law and determine all the issues in a single equitable proceeding.^*' § 66. Injunction allowed where defense can not be made at law; inequitable defenses enjoined. The beneficial effects of the jurisdiction of equity in restraint of proceedings at law are nowhere more apparent than in that class of cases where the equities relied upon can not, under the rigid rules of law, be entertained as a defense to the action in the legal forum. Thus, the failure or total want of consideration for negotiable paper, although available as a defense to an action between the original parties, is not admissible where the action is brought against an indorsee in good faith and for valuable consideration, and resort must be had to equity to establish defendant's rights. And where a negotiable instrument or note, without consideration, is valid upon its face, the juris- diction of equity is well established to interfere and restrain suit upon such instrument. Thus, where a negotiable note, valid upon its face, had been given without any considera- tion, and upon an agreement that it should be given up to the maker upon the happening of a certain contingency, which had happened, and an action at law was afterward brought upon such note by the payees against the personal representatives of the maker, the suit was enjoined.^^ And this for ihe reason already noticed, that the illegality of the instrument is not apparent on its face, but is dependent upon evidence dehors the instrument itself, whereby the defense might fail through lapse of time.^^ And where a note was signed and delivered without consideration, and with the 90 Illinois Central R. Co. v. Gar- C. E. Green, 270, affirmed on ap- rison, 81 Miss., 257, 32 So., 996, 95 peal, 4 C. E. Green, 457. Am. St. Rep., 469. 92 Bromley v. Holland, 5 Ves., 91 Metler's Adm'rs v. Metier, 3 617; Hayward v. Dimsdale, 17 Ves., 111. 84 INJUNCTIONS. [chap. II. understanding that it should not be enforced, equity will en- join a suit thereon by the administrators of the payee, since the note can have no more obligatory effect in their hands than it would have had in the hands of their intestate.^'^ So a surety upon an official bond may restrain the prosecution of an action at law against him upon the bond, upon the ground of equitable defenses which can not be interposed in the suit at law.^* And upon similar principles, equity may enjoin the prosecution of an action before a justice of the peace upon the ground that the defendant in that suit has a counterclaim, growing out of the same transaction as that involved in the suit, which is greater in amount than that of the jurisdic- tion of the justice court and which therefore can not be set off in that suit.^-'* And where the defendant, upon establish- ing a defense to an action at law brought in a court of limited jurisdiction, would be entitled to affirmative relief resulting from establishing such defense which the court would be with- out jurisdiction to grant, the prosecution of the action may be enjoined and the whole case heard in a court of general equity powers.^*^ And equity has jurisdiction, when necessary for the protection of the equitable rights of a suitor, to restrain his adversary from setting up an inequitable defense in an action at laAV, as well as from prosecuting an inequitable ac- tion.^'^ So one who has fraudulently come into the possession of promissory notes has been enjoined from using them in evidence in actions brought thereon.''^ So also where a de- fendant has fraudulently procured a deed which is calcu- lated to cast a cloud upon the plaintiff's title to real estate, equity may enjoin the inti-odnction of such d(Mvl in evidence in an ejectment suit based thereon."" ••'•■'Bell v. Gamble, 9 Humph., 117. ^'v Dodd r. Wilson, 4 Del. Ch.. "•• Penn v. Ingles, 82 Va., 65. 399. "•'•Gregory v. Diggs, 113 Cal., '••^ Lannes r\ Courege, 31 La. An, 196. 45 Pac, 261. 74. i"i National Bank v. Carlton, 96 "" Rogers v. Rogers, 37 Wesf. Oa.. 469. 23 S. E., 388. Va., 407. 16 S. E.. 633. CHAP. II. J ACTIONS AT LAW. 85 § 67. Failure of consideration as ground for enjoining suit. Upon similar principles e(iuity will restrain suits upon instru- ments, the consideration for which, though good originally, has since entirely failed, and where great hardship would re- sult from the enforcement of payment. Thus, where the con- sideration for which a draft was given has entirely failed, a suit thereon may be enjoined, regardless of whether the equities alleged constitute a good defense at law, since the draft, being still transferable, might become the foundation for other suits, and the complainant be thereby greatly harassed.^ So a suit upon a note may be temporarily en- joined on the ground that the property which was the consideration for the note has been forfeited to the govern- ment by vendor's acts before sale, vendee having brought suit in another jurisdiction to recover the property from the gov- ernment.- It is held, however, that mere unsoundness of the property which constituted the consideration for the note, in the absence of warranty and wilful deceit, affords no ground for an injunction.^^ Where one partner sells to the other his interest in the partnership property upon an implied warranty of title, the circumstance of creditors of the firm afterward levying upon and selling the property is such a failure of con- sideration as Avill authorize a court of equitj^ to entertain a bill on behalf of the sureties of the purchaser to enjoin proceed- ings at law for the purchase money.^ §68. Criminal proceedings not enjoined; nor mandamus; exceptions. Since courts of equity deal only with civil and property rights, they will not interfere by injunction with criminal proceedings, having no jurisdiction or power to afford relief in such cases. Jurisdiction over such actions isi conferred upon courts .especially created to hear them and, with few exceptions, it is beyond the power of equity to con- trol or in any manner interfere with such proceedings by in- 1 Ferguson v. Fisk, 28 Conn., 501. -^ Jackson v. Andrews, 28 Ga., 17. sCarswell i\ Macon, 38 Ga., 403. 4 Hough v. Chaffir, 4 Sneed, 238. 86 INJUNCTIONS. [chap. II. junction.^ And this is true even though the court of equity already has jurisdiction of the parties and of the subject-mat- ter concerning which the criminal action is instituted. Where, therefore, a bill is pending for relief in equity, the court will not enjoin the plaintiff in that suit from prosecuting criminal proceedings against the same defendants and concerning the same subject-matter.'^ Nor will equity entertain a bill for an injunction to restrain proceedings upon a mandamus in a court of law, and a demurrer to such a bill will therefore be sustained.'^ So equity will not interfere by injunction to ^ Kerr v. Corporation of Preston. 6 Ch. D., 463; Saull v. Browne, L. R. 10 Ch., 64; Crighton v. Dahmer, 70 Miss.. 602, 13 So., 237, 21 L. R. A., 84, 35 Am. St. Rep., 666; In re Sawyer, 124 U. S., 200, 8 Sup. Ct. Rep., 482; Harkrader v. Wadley, 172 U. S., 148, 19 Sup. Ct. Rep., 119; Moses v. Mayor, 52 Ala., 198; Joseph V. Burk, 46 Ind., 59; Gault V. Wallis, 53 Ga., 675; Phillips v. Mayor, 61 Ga., 386; Garrison v. City of Atlanta, 68 Ga., 64; New H. S. M. Co. V. Fletcher, 44 Ark., 139; Portis v. Fall, 34 Ark., 375; Medical and Surgical Institute v. City of Hot Springs, 34 Ark., 559; Home Savings & T. Co. v. Hicks, 116 la., 114, 89 N. W., 103; State V. Theard, 48 La. An., 1448, 21 So., 28; Lecourt v. Gaster, 49 La. An., 487, 21 So., 646; Osborn v. Char- levoix Circuit Judge, 114 Mich.. 655, 72 N. W., 982; State v. Wood, 155 Mo., 425, 56 S. W., 474, 48 L. R. A., 596; Suess v. Noble, 31 Fed.. 855; Hemsley v. Myers, 45 Fed., 283; Davis, etc. Mfg. Co. v. City of Los Angeles, 115 Fed., 537. And see Arbuckle v. Blackburn, 51 C. C. A., 122, 113 Fed., 616. 6 Saull V. Browne, L. R. 10 Ch., 64. Lord Chief Justice Holt, of the Queen's Bench, is reported to have said in the case of Holder- staffe V. Saunders, 6 Mod., 16: "Surely chancery will not grant an injunction in a criminal mat- ter under examination in this court; and that if they did, this court would break it, and protect any that would proceed in con- tempt of it." ^ Montague v. Dudman, 2 Ves. Sr., 396. Lord Chancellor Hard- wicke says, p. 398: "If I should overrule this demurrer I should open a new door of jurisdiction tc this court, which I believe would afford a source of very great in- convenience and mischief, and bring all the corporation and bor- ough cases in this kingdom in some shape or other on the foot of discovery or relief. This court has no jurisdiction to grant an in- junction to stay proceedings on a mandamus ; nor to an indictment, nor to any information, nor to a writ of pi'ohibitlon, that I know of. The reason is that a mandamus is not a writ remedial but manvla- CHAP. II. J ACT10>'S AT LAW. 87 restrain niimicipal officers from the prosecution of suits for the violation of city ordinances, such proceedings being of a quasi criminal nature, since equity will not interfere with the execution of the criminal law, whether pertaining to the state at large, or to municipalities, which are agents in the administration of civil government.^ And where under a statute for the prevention of cruelty to animals an officer is authorized to arrest all offenders found violating the statute, a court of equity will not enjoin such officer from making arrests upon the ground that the acts complained of are not in violation of the statute, and because of the injury which would result to plaintiff's business, since equity will not thus interfere with the execution of the criminal laws.^ If, how- ever, the act concerning which an arrest or criminal prosecu- tion is threatened affects civil property and its enjoyment, in protecting the property right, equity may properly enjoin the tory. It is vested in the king's superior court of common law to compel inferior courts to do some- thing relative to the public. That court has a great latitude and dis- cretion in cases of that kind; can judge of all the circumstances, and is not bound by such strict rules as in cases of private rights. That, therefore, must be given up as any color for such an injunc- tion." « Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S., 207, 23 Sup. Ct. Rep. 498; Moses v. Mayor, 52 Ala., 198; Taylor v. City of Pine Bluff, 34 Ark., 603; Chicago. B. & Q. R. Co. V. Ottawa, 148 111., 397, 36 N. E., 85; Golden v. City of Guthrie, 3 Okla., 128, 41 Pac, 350; Phillips v. Mayor, 61 Ga., 386; Mayor v. Patterson, 109 Ga., 370, 34 S. E., 600; City of Bain- bridge V. Reynolds, 111 Ga., 758, 36 S. E., 935; Paulk v. Mayor, 104 Ga., 24, 30 S. E., 417, 41 L. R. A., 772, 69 Am. St. Rep., 128, dis- tinguishing City of Atlanta v. Gate C. G. L. Co., 71 Ga., 106. Contra, Sylvester Coal Co. v. City of St. Louis, 130 Mo., 323, 32 S. W., 649, 51 Am. St. Rep., 566, where the court seek to sustain the jurisdic- tion in order to prevent a multi- plicity of suits although there is nothing to show that the complain- ants were being harassed by con- tinuous and repeated prosecu- tions; and upon the further ground that the ordinance, though penal, was not criminal in its na- ture, — a distinction which is with- out the support of authority. 9 Davis V. American Society, 75 N. Y., 362. 88 INJUNCTIONS. [chap. li. criminal prosecution. But in such case its interference is founded solely upon the ground of injury to property and the necessity of preserving property rights.^ ^ And where such rights are not clearly involved, the relief will be denied.^^ A still further exception to the rule which forbids equitable interference with criminal prosecutions has been recognized in cases where such proceedings are instituted by parties to a suit already pending in equity, for the purpose of testing the same right as that in issue in the equitable action. A court of equity may always impose conditions upon a suitor seeking its aid, and hence, in order to protect its prior juris- diction, it may compel him to abandon the criminal prosecu- tion until a final determination of the whole matter in equity.^ ^ §69. Suit on fraudulent foreign judgment enjoined; rem- edy at law defined. An injunction will lie to restrain an action brought upon a foreign judgment when such judg- ment was obtained through fraud. And the fact that the aggrieved party in such a case might have relief by apply- ing to the court in which the judgment was rendered for a new trial will not prevent relief in equity ; since a remedy 10 Dobbins v. City of Los An- plaintiff and his agents were being geles, — U. S., — , 25 Sup. Ct. annoyed and harassed by contin- Rep., 18; City of Atlanta v. Gate ued and unnecessary arrests and C. G. L. Co., 71 Ga., 106, distin- prosecutions for the violation of guished in Paulk v. Mayor, 104 an alleged illegal ordinance the Ga., 24, 30 S. E., 417, 41 L. R. A., validity of which could be deter- 772, 69 Am. St. Rep., 128; Mil- mined in a single one, the court en- waukee E. R. & L. Co. v. Bradey, tertained jurisdiction of a bill in 108 Wis., 467, 84 N. W., 870; the nature of a bill of peace al- Schlitz Brewing Co. v. City of Su- though complainant's right had not perior, 117 Wis., 297, 93 N. W., been established at law. 1120; Schaudler Bottling Co. v. ii Hemsley v. Myers, 45 Fed., Welch, 42 Fed., 561; Southern Ex- 283. press Co. v. Mayor, 116 Fed., 756. '-/n re Sawyer, 124 U. S., 200, And see Greenwich Insurance Co. 8 Sup. Ct. Rep., 482; Spink v. V. Carroll, 125 Fed., 121. In City F^rancis, 19 Fed., 670; Wadley v. of Hutchinson v. Beckman, 55 C. Blount, 65 Fed., 667. C. A., 333, 118 Fed., 399, where the CHAP. II. J ACTIONS AT LAW. 89 at law which will bar relief in e(iuity must be one which the courts of the same state can apply, and not a remedy which is to be sought in the courts of another state.^^ § 70. Unconscionable bargains with expectant heirs; gam- bling contracts. Equity may afford relief by injunction against unconscionable bargains made with expectant heirs, the jurisdiction in such cases being based upon the ground of fraud, independent of any question of usury, and notwith- standing the usury laws have been abolished. And the court in such cases may enjoin actions at law upon bills of exchange thus obtained from expectant heirs, upon condition of pay- ment of the amount actually due.^^ And an injunction haa been granted to stay an action at law upon a gambling con- tract.i^ And it is held, under a statute giving a losing party the right to recover back any money deposited as margins under a wagering contract, that an injunction will lie to re- strain the prosecution of an action at law based upon a note- given as margins.^^ §71. Actions to recover penalty formerly enjoined; bond for purchase of office. The English Court of Chancery former- ly granted injunctions to restrain actions for the recovery of the penalty in a bond, when the only question was as to whether the amount was considered as a penalty or as assessed or liquidated damages. And in such eases the court would re- tain the injunction until the hearing, and would order an issue quantum damnificatus to determine. the real damages.^^ And Avhere an action at law was brought upon a bond given for the purchase of an office, Lord Thurlow granted an in- junction, wdiich he afterward made perpetual, upon grounds 13 Stanton v. Embry, 46 Conn., loRice v. Winslow, 182 Mass., 595. 273, 65 N. E., 366. 1* Earl of Aylesford V. Morris, L. it sioman v. Walter, 1 Bro. C R. 8 Ch., 484. C, 418. See also Errington v. Ay- 15 Earl of Milltown v. Stewart, 3 nesly, 2 Bro. C. C, 341. Myl. & Cr., 18, affirming S. C, 8 Sim., 371. 90 INJUNCTIONS. [chap. II. of public policy.^ ^ It is difficult, however, to reconcile these decisions with the now well established rule denying relief by injunction against actions at law upon grounds which might be urged in defense of such actions, and it is believed that courts of equity would not now entertain jurisdiction in cases of the nature above discussed. § 72. Solicitor enjoined from acting in adverse capacity. A court of equity may enjoin a solicitor from acting in an adverse capacity against an estate or person for whom and in a matter in which he has formerly acted professionally, and may enjoin him from communicating adversely any in- formation in relation to matters which have come to his knowledge in such professional capacity .^^ And the applica- tion for the injunction in such case may be made merely upon motion, and without instituting a new proceeding for that purpose.^^ § 73. Suits against receivers, when enjoined. The juris- diction of equity by injunction against actions at law is also frequently invoked in behalf of receivers for the purpose of protecting them against litigation in other courts. Indeed, courts of equity are exceedingly jealous in guarding and pro- tecting their officers against unauthorized litigation, and will not usually permit their receivers to be sued without leave being first granted for that purpose by the court appointing the receiver.21 Where, therefore, an action has been brought against a receiver without leave of court first obtained, the prosecution of such unauthorized action may be enjoined by i« Harrington v. Du Chatel, 1 also Little v. Kingswood Collieries Bro. C. C, 125; Harrington v. Co., 20 Ch. D., 733. Chastel, Dick., 581. -'o Biggs v. Head, Saw. & Sc, 335. i» Biggs V. Head, Sau. & Sc, 335; 21 Taylor v. Baldwin, 14 Abb. Pr., Hobhouse v. Hamilton, lb., 359; 166; De Groot v. Jay, 30 Barb., Brady v. Lawless. lb., 365; Davies 483; S. C, 9 Abb. Pr., 364; Miller V. Clough, 8 Sim., 262; Cholmon- v. Loeb, 64 Barb., 454; Randfield deley v. Clinton, 19 Ves., 261. See v. Randfield, 3 De G.. P. & J., 766. reversing S. C, 1 Dr. & Sm., 310. CHAP. II.] ACTIONS AT LAW. 91 the court appointing the receiver.-- And when a person is proceeding by action at law to assert his right to property held by a receiver without first having obtained leave of court to institute such action, he may be enjoined upon the appli- cation of the receiver from proceeding with his action, re- gardless of however clear his right may be, or of whether he was apprised of the receiver's appointment at the time of instituting his action.-^ So where tenants, without leave of court, have brought actions of trespass or replevin against a receiver who has distrained for their rent, it is proper to en- join them from proceeding with such unauthorized suits.-'* And a court of equity may interfere by injunction to protect its receiver against unauthorized litigation, even though the person enjoined is proceeding to enforce a legal right in the manner prescribed by statute. Thus, where real estate is in the custody of a receiver, and a railway company, desiring a portion of it for the construction of its road, begins pro- ceedings for a condemnation in accordance with the statute, an injunction may be granted to restrain such proceedings until further order.-^ But an action against a receiver in his official capacity for matters pertaining to his receivership will not be enjoined, upon motion of the receiver, merely on the ground that the controversy involved in the action has al- ready been passed upon by the court in other procedeings : since, if this be true, it furnishes a complete and sufficient defense to the action which it is sought to enjoin, and the receiver should avail himself of such defense in that action.-^ Nor will courts of equity ordinarily entertain a bill for an injunction against their own receivers, the appropriate remedy for persons who are aggrieved or dissatisfied with the action 22 Evelyn v. Lewis, 3 Hare, 472; ^^1% re Persse, 8 Ir., Eq., Ill; Tink V. Rundle, 10 Beav., 318; In Parr v. Bell, 9 Ir. Eq., 55. re Persse, 8 Ir. Eq., Ill; Parr v. 25 Tink v. Rundle, 10 Beav., 318. Bell, 9 Ir. Eq., 55. 26 jay's Case, 6 Abb. Pr., 293. 23 Evelyn v. Lewis, 3 Hare, 472 92 INJUNCTIONS. [chap. II. of a receiver being to apply to the court which has appointed him for relief, rather than to seek to enjoin him by another suit.2^ § 74. Suits against infants, when enjoined. Courts of equity have always shown a tendency to a liberal exercise of their jurisdiction for the protection of infants ; and when two different suits are instituted in behalf of an infant by two dif- ferent persons, each claiming to act as his next friend, equity may determine which of the two should proceed, and may then enjoin proceedings in the other suit.-^ § 75. Landlord and tenant. As between landlord and ten- ant, it is to be observed that courts of equity are generally averse to interfering by injunction to restrain proceedings at law by the landlord, either for the recovery of rent or of the possession of the demised premises.^^ And equity will not interfere at the suit of a tenant to restrain the landlord from proceeding with a distress for rent upon the ground that the rent has been fully paid; since in such case ample relief may be had by an action at law, in replevin or otherwise, for the illegal distress.^*^ Nor will the landlord be enjoined from pro- ceedings at law to dispossess the tenant upon the ground of a promise that the tenant should have the premises for another year.^^ So the destruction of the demised premises by fire does not afford sufficient ground for enjoining an action at laAv for the recovery of the rent, the lease containing no pro- vision for a suspension of the rent in case of fire.^- While, as thus shown, equity will not ordinarily interfere to restrain a landlord from pursuing his legal remedies against the tenant, yet in an action by a tenant for the specific performance of a ^' Smith V. Earl of Effingham, 2 Cheetham, 1 Sim., 146; Phillips v. Beav., 232; Winfield v. Bacon, 24 Jones, 9 Sim., 519. Barh., 154. •'"' Banks v. Busey, 34 Md.. 437. ■-:'' Morrison v. Bell, 5 Ir. Eq., 354. -"i Rapp v. Williams, 1 Hun, 716; -'('Banks v. Busey. 34 Md., 437; S. C, 4 Thomp. & C, 174. Rapp V. Williams, 1 Hun, 716; S. 32 Leeds v. Cheetham, 1 Sim., 146. C, 4 Thomp. & C, 174; Leeds v. CHAP. II.] ACTIONS AT LAW. 93 covenant by the landlord to repair and protect the premises, it has been held proper to enjoin the landlord from statutory proceedings to dispossess the tenant and to annul the lease, the relief being granted in such case upon the ground that the tenant had no adequate remedy at law.^^ § 76. Usurious contracts. Where relief by injunction is sought against proceedings at law upon usurious contracts, the courts enforce a strict observance of the principle that he who would have equity mus^t do equity. And unless the per- son aggrieved first pays or offers to pay the amount lawfully .due upon the contract, he will not be permitted to enjoin proceedings at law."^ And it is held that the amount due must be actually tendered or produced in court with lawful interest.^'' If, however, defendant answers without taking advantage of this objection, an injunction already granted will not be dissolved where complainant offers to pay the amount due.^^ And where plaintiff files his bill to redeem certain collateral securities which he has deposited as security for usurious loans, he may, in a proper case, have an injunction to restrain defendant from enforcing the usurious contract by the collection or enforcement of the security.^" § 77. Attachment suits. An injunction is the proper rem- edy for the protection of creditors in a foreign attachment, who are entitled to a priority of claim over creditors subse- quently attaching.28 But a suit in attachment will not be restrained on the ground that the amount claimed is so large 33 Valloton V. Seignett, 2 Abb. v. Commercial Warehouse Co., 1 Pr., 121. Hun, 718; S. C, 4 Thomp. & C, 179. »< Rogers v. Rathbun, 1 Johns. so Rogers v. Rathbun, 1 Johns. Ch., 367; Tupper v. Powell, lb., Ch., 367; Tupper i;. Powell, lb., 439. 439; Fanning v. Dunham, 5 Johns. se Morgan v. Schermerhorn, 1 Ch., 122; Morgan v. Schermerhorn. Paige, 544. 1 Paige, 544; Miller v. Ford, Saxt., •"' Binford 7\ Boardman, 44 Iowa 358. See, as to an injunction to re- 53. strain the sale of securities pledg- 's Erskine v. Staley, 12 Leigh, ed as collateral to a loan, Caldwell 406; Moore v. Holt, 10 Grat, 284. 94 INJUNCTIONS. ' [chap. II. that defendant, being a non-resident, can not obtain the neces- sary security to dissolve the attachment, and that his inability to procure such security will deprive him of the privilege of introducing a defense of set-off.^^ Nor will a court of equity enjoin proceedings in attachment upon the application of a third person not a party to the litigation, and when no preju- dice is shown as likely to result to complainant from the attachment suit.'*^ § 78. Awards and arbitrators. Equity will enjoin an action at law upon an award of arbitrators on the ground of improper conduct on the part of the arbitrators in making the award. Thus, where they had received evidence from a witness on one side, of which the other party was not apprised or notified, and to which he had no oppprtunity of replying, the pro- ceedings were enjoined, even though the arbitrators positively disclaimed being influenced by such ex parte evidence.*^ And equity may enjoin an arbitrator from acting, upon the ground of partiality, and when it is apparent to the court that he is not a fit person to act, and when it is not probable that he will faithfully and honestly discharge his duty.*^ go equity has jurisdiction to enjoin the bringing of an action at law upon an award given under the terms of a fire insurance policy, upon the ground that it was obtained by means of false and fraudulent testimony given by the defendant.'*^ But an action upon an award will not be enjoined merely to give one who has gone voluntarily to trial an opportunity to secure the impeachment of witnesses, when he had been apprised before- hand of the nature of their evidence.'*'* Nor will the relief be allowed where the person aggrieved has been guilty of laches 3!) Dungan v. Miller, 4 C. E, ^'s North British & M. I. Co. t;. Green, 218. Lathrop, 17 C. C. A., 175, 70 Fed., ••" Williams v. Stewart, 56 Ga., 429. 603. ■41 Woodworth v. Van Buskerk, i "1 Cliland v. Hedly, 5 R. I., 103. Johns. Ch., 432. <2 Beddow v. Beddow, 9 Ch. D., 89. CHAP. II.] ACTIONS AT LAW. 95 ill applying for the injunction or where his conduct has been such as to estop him from relief in equity.'*^ §79. Change of venue; absence of witness; statute of limitations. Proceedings at law may be enjoined and a change of venue had where the facts relied upon have come to the knowledge of complainant too late to apply for a change of venue at law.*® But the relief will not be granted because of the refusal of the court to postpone the trial on account of the absence of a material witness, since that is a matter entirely within the discretion of the court of law, with the exercise of which discretion equity will not interfere.*'^ Nor will an injunction be allowed to restrain defendant from pleading the statute of limitations, except in a plain case of fraudulent abuse of the lapse of time. And in the absence of such fraud and of any contract or stipulation that delay in brining suit should not prejudice the rights of the parties, an injunction will be refused.*^ § 80. Bond for purchase money. One who has purchased personal property at a sale under execution, which is after- ward proved to belong to a person other than the judgment debtor, who recovers it by due course of law, is not entitled to an injunction to restrain proceedings upon his bond given for the purchase money .■*^ § 81. Proceedings under United States revenue laws rarely enjoined. Courts of equity will rarely interfere with the legal rights of the United States government under the revenue laws; and if justice is done under their provisions as to penal- 45 Jones V. Bennett, 1 Bro. P. C. See also Andrae v. Redfield, 12 628; Smith v. Whitmore, 1 H. & M., Blatch., 407, where an injunction 676. was refused which was sought to 4« Darmsdatt v. Wolfe, 4 Hen. & restrain defendant from pleading M., 246. the statute of limitations in bar of ••7 Hamilton v. Dobbs, 4 C. E. an action. Green, 227. 49 McGhee v. Ellis, 4 Lit., 244; 4.8 Bank v. Hill, 10 Humph., 176. Fawcet v. Pendleton, 5 Lit, 136. IH) INJUNCTIONS. [chap. II. ties and forfeitures, relief must be had by application to the treasury department, and not by injunction in equity.^^ § 82. Trust ; insolvency of maker of note. Where the relief is sought on the ground that the subject-matter of the suit, being a trust, is within the jurisdiction of equity, the proceed- ings at law should not be enjoined, but only execution upon the judgment which may be recovered.^! But a suit upon a note will not be enjoined, for the protection of other creditors of the maker, on the ground that he was insolvent at the time when legal proceedings were instituted, since the mere fact of such insolvency does not invalidate or render fraudulent a note given for a bona fide indebtedness.^'- § 83. Effect of the injunction; mandamus not allowed. The effect of an injunction staying proceedings at law against the principal, where special bail has been taken, is to tie up the hands of plaintiff in the action at law so that no proceed- ings can be had against the special bail.^^ And where the action enjoined was at issue and ready for trial when the injunction issued out of chancery restraining proceedings, j)laintift' in the action at law will not be allowed to proceed to trial and judgment on the ground of saving of time and expense.^"* So when an injunction has been granted against the prosecution of an action at law, mandamus will not lie to compel the court to proceed with the trial of the cause.^-'^ § 84. Acceptance of goods from debtor ; fraudulent decree ; imprisonment for debt. A suit for the collection of a debt will not be restrained because the plaintiff has accepted of his debtor certain goods, with the understanding that they were in satisfaction of th(^ debt, if not taken from him by •■•" Powell V. Redfield, 4 Blatch., ^''■^ Webster v. Chew, etc., 3 Har. 4.5. & McHen., 123. '■' .TuRtice V. Scott, 4 Ired. Eq., •'^* Hutchinson v. Hutchinson's 108. Kx'rs, 1 Houst, 613. •'■i Savage v. Ball, 2 C. 10. (Ireen, •"'■"> People v. Circuit Judge, 40 142. Mich., 63. CHAP. II.] ACTIONS AT LAW. 97 superior liens, unless the debtor seeking the injunction can show that there were no superior liens outstanding.^^ Nor will an injunction be granted to restrain proceedings at law to recover damages against one who has fraudulently obtained a decree in chancery which has been set aside on account of such fraud.^''' But it is held that equity has jurisdiction to enjoin proceedings against the person and equitable assets of a debtor, under a statute abolishing imprisonment for debt, and providing for the punishment of fraudulent debtors.-''^ § 85. Dismissal of suit, when enjoined; lost ag^reement. Equity will, in a proper ease, interfere to prevent the dismissal of an action at law. Thus, where defendant in the injunction suit has, upon good consideration, given complainant a power of attorney to bring an action at law in his own name, but for complainant's benefit, the dismissal of the suit by the nominal plaintiif will be enjoined."'^ But an injunction against a suit at law, the only equity in favor of which is a written agree- ment alleged to be lost, will not be retained where the bill does not state that proof of the contents of the lost agreement can be given by parol, the answer denying all knowledge of such agreement, and stating facts inconsistent therewith.^^ § 86. Garnishees. Under a statute authorizing injunctions against defendants for certain specified causes, a garnishee is regarded as a defendant within the terms of the statute, and an injunction may be granted against him as such.^^ But an injunction will not be allowed before trial at law to restrain a garnishee from disposing of the debtor's property in his hands, except upon a showing of the garnishee's insolvency and the consequent danger of loss.^- 56 Camp V. Matheson, 29 Ga., 351 go Kent v. De Baun, 1 Beas., 220. "7 Peck V. Woodbridge, 3 Day, «' Malley v. Altman, 14 Wis., 22; 508. Almy v. Piatt, 16 Wis., 169. 58 Frost V. Myrick, 1 Barb., 362. ea Bigelow v. Andress, 31 111., 322. fi9 Monroe v. Mclntyre, 6 Ired. Eq., 65. 7 98 INJUNCTIONS. [chap. II. § 87. Effect of the injunction on statute of limitations. The authorities are not wholly reconcilable concerning the effect of an injunction against proceedings at law in its opera- tion upon the statute of limitations, and as to whether it suspends the operation of the statute. It was said in an early English case that if a party were staid by injunction from prosecuting his suit, the court would not permit him thereby to be prejudiced by the statute.^^ And in Maryland it has been held that the operation of the statute is suspended by an injunction against the enforcement of the cause of action, and that in such case a plea of the statute constitutes no defense.^'* And in Mississippi it is held that an injunction against the enforcement of a legal obligation prevents the statute from running during the pendency of the injunction suit.^^ And the United States Circuit Court of Appeals for the Fourth Circuit has held that an injunction against the prosecution of an action upon a fire insurance policy prevents the running of the contractual period of limitation named in the policy.^® In New York, however, a contrary doctrine has been asserted, and it has there been held that an injunction does not have the effect of suspending the statute.^'^ And it is held that where it is sought to defeat a plea of the statute of limitations by showing that an injunction had been granted against the enforcement of the contract, such reply will not avail if the injunction was obtained by a third person not a party to the contract, the statute not being suspended in such case.^^ «3 Anon., 2 Cases in Chancery, lion v. Buchanan, 60 Miss., 496. 217. As to the effect of an injunc- go North British & M. I. Co. v. tion against a judgment as ex- Lathrop, 17 C. C. A., 175, 70 Fed., tending the time within which an 429. execution may issue upon the judg- 07 Barker v. Millard, 16 Wend., ment, see "Wakefield v. Brown, 38 572. Minn., 361. ^'^ Wilkinson v. First N. Ins. Co., 04 Little V. Price, 1 Md. Ch., 182. 72 N. Y., 499, affirming S. C, 9 05 Tishimingo Savings Institu- Hun, 522. CHAP. II,] ACTIONS AT LAW. 99 § 88. Effect of dissolving the injunction. Upon the disso- lution of an injunction to a suit at law, the court as a court of chancery has nothing further to do with the case, but should leave the parties to proceed at law with the suit enjoined. And it is error for the same court which has dissolved the injunc- tion, sitting as a court of equity, to immediately enter up judgment in the action, sitting as a court of law.*^^ 89 Powers V. Waters, 8 Mo., 299. 100 INJUNCTIONS. [chap. II. II. Defense at Law. § 89. Proceedings at law not enjoined when defense may be made at law. 90. Illustrations of the rule. 91. Cases of concurrent jurisdiction at law and in equity. 92. The rule applied to cases of set-off. 93. The rule applied regardless of merits of action or fears of injus- tice. 94. Exceptions to the rule in cases of fraud. § 89. Proceeding's at law not enjoined when defense may be made at law. The most frequent ground for refusing relief by injunction against a suit at law is that the defense urged may be used in the action at law itself, without resort to equity. And it may be laid down as a general rule that legal proceedings will not be enjoined on grounds of which the person aggrieved may avail himself in defense of the action at Islw.^ In illustration of the rule, where complainant files a bill to set aside certain securities as void and is afterward sued at law upon the securities, having a good defense to the 1 New York D. D. Co. v. Amer- land, 196 U. S., 611, 25 Sup. Ct. lean L. I. & T. Co., 11 Paige, 384; Rep., 345; Gibson v. Moore, 22 Wolf Lumber Co. v. Brown, 88 Tex., 611; Hewitt v. Kuhl, 10 C. E. Wis., 638, 60 N. W., 996; Virginia Green, 24; Hardinge v. Webster, 1 Mining Co. v. Wilkinson, 92 Va., Drew. & Sm., 101; De Worms v. 98, 22 S. E., 839; Beauchamp v. Mellier, L. R. 16 Eq., 554; 01m- Putnam, 34 111., 378; County of sted's Appeal, 86 Pa. St., 284; Cook V. City of Chicago, 158 111., Heath v. Heath, 9 Ir. Eq., 635; 524, 42 N. E., 67; Andel v. Starkel, Anderson v. Bowling, 11 Ir. Eq., 192 111., 206, 61 N. E., 356; Smith 590. But see, contra. Bullitt's Ex'rs V. Short, 11 la., 523; Home Sav- v. Songster's Adm'rs, 3 Munf., 55; ings & T. Co. V. Hicks, 116 la., 114, Evans v. Taylor, 28 West Va.. 184; 89 N. W., 103; Saint Johns Na- Pullman P. C. Co. r. Central T. tional Bank v. Township of Bing- Co., 34 Fed., 357; Sweeney v. ham, 113 Mich., 203, 71 N. W, Williams, 36 N. J. Eq., 459; Jac- 588; Polk v. Gardner, 67 Ark., 441. obson v. Metzgar, 43 Mich., 403; 55 S. W., 840; Powell v. Chamber- Martin v. Orr, 96 Ind., 27; City of lain, 22 Ga., 123; Scottish Union Seymour v. .1., M. & I. R. Co., 126 & National Insurance Co. v. Bow- Ind., 466, 26 N. E., 188. Cll-Vr. II. j ACTIONS AT LAAV. 101 action at law, he will not be allowed to enjoin the prosecu- tion of such suit until after he has obtained a decree in equity.- Nor in such case will the neglect of the defendant in the chan- cery suit to object to the jurisdiction of the court entitle the complainant to a preliminary injunction restraining the suit at law.' So proceedings at law will not be enjoined on the ground of want of jurisdiction in the court in which the proceedings are instituted, since such want of jurisdiction may be relied upon in defense of the action at law.* And equity will not enjoin proceedings in another court of competent jurisdiction where adequate relief may be had by appeal from the order of such court.''' Nor will the fact that plaintiff at law has no cause of action — as in an action of forcible entry and detainer that he has no title— warrant relief in equity against the suit.^ So an injunction will be refused to a suit on a note, the only equity relied upon being that a certain payment has not been credited, and complainant making no tender of the remainder.''' And the improper exclusion of evidence by the court in which the action is pending affords no ground for enjoining the action, since the appropriate remedy in such case is by appeal.^ Nor does the fact that the proceedings sought to be enjoined are in a court of equity alter or vary the rule, since if the person aggrieved has a good defense to the equita- ble action it is equally as competent for him to urge such matter in his answer to that action as in a bill to enjoin.^' So where the illegality of an instrument is apparent upon the face of the instrument itself, so that lapse of. time can not - New York D. D. Co. v. Amer- But see, contra, Pettigrew v. Fo- ican L. I. & T. Co., 11 Paige, 384. shay, 12 Hun, 483; Freeman v. Car- 3 Id. penter, 147 Mass., 23, 16 N. E., 714. * Gibson v. Moore, 22 Tex., 611; « Chadoin v. Magee, 20 Tex., 476. Jones i\ Stallsworth, 55 Tex., 138; "Powell v. Chamberlain, 22 Ga.. Dubuque & S. C. R. Co. v. Cedar 123. Falls & M. R. Co., 76 Iowa, 702, 39 ^ Wright v. Fleming, 12 Hun, 469. N. W., 691. 'Hall v. Fisher, 1 Barb. Ch. R., •People V. Coffin, 7 Hun, 608: 53. Wright r. Fleming, 12 Hun, 469. 102 INJUNCTIONS. [chap. II. weaken or take away the defense whenever action may be brought, there is no ground for relief in equity.^'' But where the illegality is' only to be made apparent by evidence dehors the instrument, the rule is otherwise.^ ^ § 90, Illustrations of the rule. The general rule under discussion, denying relief by injunction upon grounds of which the party aggrieved might avail himself in defense of the action at law, is of such universal application that it may not be improper to adduce some further illustrations. Thus, equity will not enjoin the prosecution of condemnation pro- ceedings upon grounds which could be raised and relied upon as a defense to such proceedings.^ ^ So an injunction will not be granted against an action at law because it is alleged to be frivolous and groundless, since in such case the person aggrieved may make adequate defense at law.^^ So the holder of a policy of life insurance will not be enjoined from prose- cuting an action thereon upon the ground that the policy was obtained through fraudulent representations on the part of the insured, since such defense may properly be urged at law.^* For the same reason an action at law brought by the assignee of a policy can not be enjoined upon the ground that the assent of the company to the assignment was fraudulently pro- cured.^ ^ So proceedings in garnishment will not be enjoined where the facts and equities relied upon as the basis of the 10 Gray v. Mathias, 5 Ves., 286. . Co. v. California & N. R. Co., 48 11 Bromley v. Holland, 5 Ves., C. C. A., 517, 109 Fed., 509. But 617. see, contra, City of Seymour v. J., 12 Illinois Central R. Co. v. City M. & I. R. Co., 126 Ind., 466, 26 of Chicago, 138 111., 453, 28 N. B., N. E., 188. 740; Chicago, Rock Island & P. R. is Kemp v. Tucker, L. R. 8 Ch. Co. V. City of Chicago, 143 111., App., b69. 641, 32 N. E., 178; Western Mary- i* Life Association v. McBlain, land R. Co. v. Patterson, 37 Md., I. R. 9 Eq., 176; Home Life Ins. 125; President v. Baltimore, C. & Co. v. Selig, 81 Md., 200, 31 Atl., E. M. P. R. Co., 81 Md., 247, 31 503. Atl., 854; Kip v. New York & H. n^ Home Life Ins. Co. v. Selig, R. Co., 6 Hun, 24; Eureka & K. R. 81 Md., 200, 31 Atl., 503. CHAP. II.] ACTIONS AT LAW. 103 injunction may be interposed in defense of the garnishee pro- ceedings.^^ And a referee who has been appointed to take testimony in a pending cause will not be enjoined from acting upon the ground that his appointment was unauthorized, there being a plain and adequate remedy by appeal.^'^ Nor will an action of replevin, brought for the recovery of chattels in the possession of a sheriff under the levy of an execution, be restrained upon a bill filed by the sheriff claiming the prop- erty to be in custodia legis since this defense could be raised in the replevin suit.^® For the same reason an injunction will not be granted to enjoin the prosecution of an action at law brought to recover upon a judgment, upon the ground that the complainant was released from the judgment by a discharge in banki'uptcy, since the discharge would constitute a good legal defense.^ ^ Nor will an action for the recovery of damages resulting from a nuisance be restrained upon the ground that the plaintiff is estopped from asserting the nuis- ance, such estoppel amounting to a legal defense to the suit at law.20 Nor will equity enjoin the probate of a will upon the charge that it was procured through fraud and undue influence where such matters may properly be raised as a defense in the probate proceedings.-^ And where suits are brought at law against defendants for violations of a village ordinance against the sale of intoxicating liquors, equity will not entertain a bill to enjoin the actions, since whatever defenses can be made may be urged at law.22 So prosecutions under a municipal ordinance will not be restrained upon the ground that complainant is not guilty of a violation since his guilt would be the sole issue in the prosecution.-^ Nor will 16 Carr v. Lee, 44 Ga., 376. 20 Roland Park Co. v. Hull, 92 17 Shoemaker v. Axtell, 78 Ind., Md., 301, 48 Atl., 366. 561. 21 Israel r. Wolf, 100 Ga., 339, IS Pickett V. Filer Co., 40 Fed., 28 S. E., 109. 313. "-■- Yates v. Village of Batavia, 79 19 Saunders v. Huntington, 166 111., 500. Mass., 96, 44 N. E., 127. And see, 23 Shoemaker v. Entwisle, 1 App. Vost, § 296. 104 INJUNCTIONS. [ClIAl'. U, a court of equity enjoin proceedings for a writ of inandama.^, when all defenses against such proceedings may be properly urged in that action, and when it is not shown that the rights of the person seeking the injunction can not he fully pro- tected in the suit for mandamus.-'^ And the fact that the plain- tiff in an action at law which is sought to be enjoined has threatened to continue such actions against the defendant affords no ground for restraining the suit when the matter relied upon in defense may be interposed in the action at law ; since if that action should proceed to judgment and the defense be established it could be pleaded in bar of other actions for the same eause.^-''* The existence of a statutory remedy for the injury complained of is of itself sufficient cause for refusing an injunction. Thus, a sheriff will not be allowed to restrain suits brought against him for having in his official capacity sold property on execution to which there are conflicting rights, when he is by statute provided with ample remedy at law, and is not bound to act unless indemni- fied.26 § 91. Cases of concurrent jurisdiction at law and in equity. It is to be observed, also, that the doctrine under discussion is not limited to cases where courts of law alone have jurisdic- tion over the subject-matter of the litigation, but it is extended to eases over which concurrent jurisdiction exists at law and in equity.^^ And although a court of equity may have con- current jurisdiction with a court of law over the subject in controversy, it will not restrain proceedings at law unless it can afford a more perfect remedy, or unless the nature of the case is such that it may be better tried in equitj^ than at law. Equity' will not, therefore, enjoin an action upon a foreign D. C, 252; Ludlow & C. C. Co. v. '.:'■ Storrs v. Payne, 4 Hen. & M.. City of Ludlow, 102 Ky., 354, 43 506. S. W., 435. 27 Ochsenbein v. Papelier, L. R. 2t People V. Wassoa, 64 N. Y., 167. 8 Ch. App., 695; Hoare v. Brem- 2'. Hartraan v. Heady, 57 Tnd., ridge, L. R. 8 Ch. App., 22, affirm- 545. ing S. C, L. R. 14 Eq., 522. CHAP. II.] ACTIONS AT LAW. 105 judgment upon the ground of fi-aud in obtaining the judg- ment, wlien such defense may be interi)Osed in that action, and when the question of fraud may be better tried at law.^'^ And Avhere, upon weighing the relative convenience of the two methods of proceeding, it is found to be better to proceed at law, a court of equity will refuse to interfere by injunction, although it has concurrent jurisdiction over the controversy. Thus, in a suit in equity to enjoin the bringing of any action at law upon an insurance policy upon the ground that it was obtained through fraud, equity may properly refuse to enjoin when the matter may be more speedily and cheaply deter- mined in an action at law upon the policy .-'^ § 92. The rule applied to cases of set-off. The rule under discussion may be applied to cases of set-off, and equity will not enjoin proceedings at law for the collection of a debt vipon the ground that defendant in the action at law has a demand against the plaintiff not yet due, but which he desires to set off against plaintiff's demand, the rule of set-off in such case being the same in equity as at law.*'^^ And the mere existence of a counter demand, or the pendency of an account between the parties out of which a cross demand may arise, does not create such an equitable offset as to warrant an injunction against an action at law.^^ But, while the existence of cross demands between the parties is not of itself sufficient to con- stitute an equitable set-off,-"^- yet when the cross demands are of such a nature that if both were recoverable at law the one might be set off against the other, a court of equity may, if it has jurisdiction of the subject-matter, enforce the set-off by enjoining proceedings at law.^^ And a court of equity may 2'^ Ochsenbein v. Papelier, L. R. Ch., 191; Burton v. Wellen, 6 Del. 8 Ch. Aim., 695. And see Evans v. Ch., 403, 33 Atl., 675. Taylor, £8 West Va., 184. ■■'•' Hewitt r. Kiihl, 10 C. E. -1' Hoare v. tsremridge, L. R. 8 Green, 24. Ch. App., 22, affirming S. C, L. R. -'^ Rawson v. Samuel, 1 Cr. & Ph.. 14 Eq., 522. 161. 30 Hayes' Adm'r r. Hayes, 2 Del. -' Clark v. Cort, 1 Cr. & Ph., 154. 106 INJUNCTIONS. [chap. IL enjoin the prosecution of an action at law pending a part- nership accounting between the parties where the plaintiff in the suit at law is wholly insolvent and it is certain the set- tlement will show a balance in favor of the complainant.^* § 93. The rule applied regurdless of merits of action or fears of injunction. The general doctrine denying relief by injunction against actions at law, where full defense may be made in such actions, is applied regardless of whether the demands which are sought to be enforced are well or il'i founded ; and that question will not be considered upon an application for an injunction if the parties aggrieved can be fully heard in defense of the actions. Nor will the allegation that plaintiff in the injunction suit fears that he may not obtain justice in the proceeding at law, or that he should be sued in a court of higher jurisdiction, warrants a departure from the rule.^^ § 94. Exceptions to the rule in cases of fraud. Exceptions to the rule as above discussed and illustrated have been allowed in some cases, but it is believed that in most instances they will be found to fall under the head of fraud, or some other of the well defined heads of equity jurisdiction. Thus, an injunction has been granted to restrain defendant from pro- ceeding to recover a debt when he has previously represented that no such indebtedness existed.^^ And representations and repeated declarations by a creditor that payment of a par- ticular bonded indebtedness would never be enforced, upon the strength of which representations others have been induced to act, have been held to constitute sufficient ground for enjoin- ing an action at law upon the bond.-*^'^ So, where a bond secured by mortgage provides that the principal shall, at the option of the obligee, become duo upon default in the payment 3-« Commercial Bank v. Cabell, 96 -'o Neville v. Wilkinson, 1 Bro. C. Va., 552, 32 S. E., 53. C, 543. ■■■' Butchers Benevolent Asso- •'" Money v. Jordan, 2 De Gex, M. elation V. Cutler, 26 La. An., 500. & G., 318. CHAP. II.] ACTIONS AT LAW. 107 of interest for a given time, a parol waiver of such forfeiture by the obligee may afford ground for enjoining a suit upon the bond.^*^ And where, in a proceeding to revive a judgment against an intestate, the administrator has been prevented, without fault on his own part, from pleading plene adminutra- vit, an injunction has been granted to restrain an action upon the administrator's bond to recover the indebtedness.-^-' But equity will in no event restrain the exercise of a legal right of action when the person seeking relief does not show that he is aggrieved, and when it is not shown that any irrepara- ble injury will result from permitting the law to take its course."**^ 38 Bell V. Romaine, 3 Stew., 24. *'J Lambert v. Lambert, 5 Ir. Eq., 39 Glendenning v. Ansley, 52 Ga., 339. 347. 108 INJUNCTIONS. [chap. II. III. Suits Pertaining to Eeal Property. § 95. When actions of ejectment enjoined. 96. When not enjoined. 97. Cloud upon title; stale claim; tortious possession. 98. Action of forcible entry and detainer not enjoined. 99. Suit upon bond for conveyance on failure of title; foreclosure enjoined when mortgage paid. TOO. Suit by heirs to recover possession; confusion of boundaries. 101. Bill to establish legal title; suit by lessor to recover. 102. Proceedings under landlord and tenant act, when enjoined. § 95. When actions of ejectment enjoined. The aid of equity is freqiientl.y invoked for the purpose of enjoining actions at law pertaining to real property, especially actions of ejectment. As we have already seen, an injunction may be allowed to restrain a number of suits in ejectment against the same persons where the questions involved are identical, the relief being extended in such case for the purpose of prevent- ing a multiplicity of suits.^ Where, however, the object of the bill is not so much to prevent vexatious litigation and a multiplicity of suits as to secure a consolidation of the actions, equity will not interfere, since a court of law is equally com- petent to administer the relief desired.^ But an action of ejectment may be enjoined on the ground that plaintiff is in equity and conscience estopped from making a claim to re- cover the pi'emises; as where his conduct had been such as to warrant defendant in going on with the erection of works u[)on the land.-^ So ejectment against a corporation will be enjoined where plaintiff in the suit acted for the corporation in i)urchasing tlie land, though taking the title in his own name, since, under the principles pertaining to implied trusts, he is regarded in o(|nity as a trustee foi- the company.^ And 1 Woods V. Monroe, 17 Mich., 238. •' Trenton Banking Co. t'. McKel- i! Peters r. Prevost, 1 Paine C. way, 4 Halst. Ch., 84. C, 64. ' Id. CHAP. II. J ACTIONS AT LAW. 109 the relief has been granted in behalf of a defendant in eject- ment, claiming under a legal title of which he could not suc- cessfully avail himself in his defense at law.^ But where equities are equal the court will not interfere by injunction; as where one has purchased real estate, giving a bond for the purchase money, he will not be allowed to restrain an inno- cent purchaser in good faith and without knowledge of com- plainant's equities, but the parties will be left to- their remedy at law." § 96. When not enjoined. Equity will not retain an injunc- tion restraining an action of ejectment when it is apparent that complainants have a good defense to such action at law, and that the deed on which plaintiff relies is void.''' And a preliminary injunction restraining proceedings in ejectment will be dissolved as to that portion of the property the title to which can be properly determined in the legal forum.^ And it may be laid down as a general rule that equity will not restrain a person from the assertion of title to real estate, unless the case is entirely free from doubt. So where the title is being tested by an action of ejectment in a court of common law having jurisdiction, the suit will not be enjoined, since the interference in such a case would be repugnant to the clearly established principle that, where different courts have concurrent jurisdiction, the right to determine the con- troversy belongs to that tribunal to which resort is first had.*^ So an action of ejectment will not be restrained if brought by the ow^ner of land after attaining majority, who, while an infant, had contracted for its sale and given a bond for con- veyance, and after coming of age refuses to ratify the sale, even though the purchase money has been paid.^*^ And the 5 Seager v. Cooley, 44 Mich., 14, >< Camden & A. R. Co. v. Stew- 5 N. W., 1058. art, 3 C. E. Green, 489. « McFarlane v. Griffith, 4 Wash. » Stockton v. Williams, 1 Doug. C. C, 585. (Mich.), 546. 7 Morris C. & B. Co. v. Jersey '" Brawner v. Franklin, 4 Gill, City, 1 Beas., 227. 463. 110 INJUNCTIONS. [chap. II. relief will not be granted on the ground that the action is barred by the statute of limitations, where the suit is brought by an administrator to recover land for the benefit of heirs who are not in a condition to sue, one of them being non compos and the other feme covert}^ And where a single plaintiff has commenced separate ejectment suits against each of a number of different defendants, the same questions of law and fact being involved in all, equity will not entertain a bill filed by the defendants in the ejectments for the purpose of preventing a multiplicity of suits, since each defendant will be subjected to the burden of defending but a single action.^ ^ But where an injunction has been allowed against the prose- cution of an action of ejectment upon the ground that the transaction out of which plaintiff derives title was a mort- gage, from which defendant in ejectment seeks to redeem, if the right of redemption is established the injunction should be made perpetual; and it is error if the court does not so direct.^ ^ § 97. Cloud upon title; stale claim; tortious possession. The owner in fee of real estate may be allowed to enjoin the prosecution of an action of ejectment by a claimant under a sheriff's deed which vests an apparently perfect title in the grantee, but whose only effect would be to cast a cloud upon the title.^** But the mere staleness of a pretended claim of title, or the fact that it is barred by the statute of limitations, constitutes no sufficient ground for restraining proceedings in ejectment, since such ground may be relied upon in defense of the action at law.^^ And where complainant has tortiously obtained possession of premises pending an action to estab- lish his equitable title thereto, he will not be allowed to enjoin proceedings for the recovery of the possession. ^^ 11 Fleming v. Collins, 27 Ga., 494. i3 Harbison v. Houghton, 41 111., 12 Turner v. City of Mobile, 135 522. Ala., 73, 33 So., 132; Winslow v. m Sieman v. Austin, 33 Barb., 9. Jenness, 64 Mich., 84, 30 N. W., if- Horner v. Jobs, 2 Beas., 19. 905; Douglass v. Boardman, 113 i<> J^Jx parie Clarke, 1 Russ. & M., Mich., 618, 71 N. W.. 1100. 5G3. CHAP. II.] ACTIONS AT LAW. Ill § 98. Action of forcible entry and detainer not enjoined. An injunction will not be allowed against an action of forci- ble entry and detainer where it does not appear that a cer- tain and manifest irreparable injury would follow the with- holding of the relief. The rule rests upon the well established principle that he who invokes the aid of equity must come into court with clean hands ; and in point of law one who is liable for an action of forcible entry and detainer has a taint of wrong about him, and is not, as a matter of right, entitled to the interference of a court of chancery.^^ Nor will the relief be granted in the absence of any allegations of fraud, mis- take, accident or surprise.^ ^ And where it is sought to enjoin an action of forcible entry and detainer, but it is apparent that complainants in the injunction suit have a full and complete defense at law, equity will apply the general rule denying equitable relief where an adequate remedy exists at law, and will refuse to interfere.^^ § 99. Suit upon bond for conveyance on failure of title; foreclosure enjoined when mortgage paid. A suit at law upon a bond for the conveyance of real estate has been enjoined where it appeared that vendor had no title at the time of making the agreement to convey; in such case equity treats the contract as an executed one until vendee receives that for which he has contracted.^o And a mortgagor who has paid his mortgage, and afterward conveyed with covenants of warranty to a third person, may properly enjoin a suit by the mortgagee who attempts to foreclose the mortgage, without 17 Crawford v. Paine, 19 Iowa, sistent with the established prin- 172; Lamb v. Drew, 20 Iowa, 15. ciple of refusing relief in equity- is Lamb v. Drew, 20 Iowa, 15. where ample redress can be had at 19 Womack v. Powers, 50 Ala., 5. law; since the want of considera- 2" Dorsey v. Hobbs, 10 Md., 412. tion, resulting from want of title. Although this case goes to the full could just as efficiently be urged in extent of the principle announced defense of the action at law as in in the text, yet it may well be a bill in equity, questioned whether the rule is con- 112 INJUNCTIONS, [chap. II. waiting until suit upon his covenants of warranty to interpose his defense.-^ § 100. Suit by heirs to recover possession; confusion of boundaries. An action brought by heirs at law to recover possession of premises will not be enjoined at the instance of a devisee under a lost will which has been insufficiently proven, the proper remedy being for complainant to retrace his steps and correct his errors in the probate court where they were made.-- And where an injunction is sought against an action at law on the ground of confusion of boundaries, complainant must allege the fact of such confusion in his bill, and set forth the circumstances producing it.-^ § 101. Bill to establish legal title ; suit by lessor to recover. A bill to establish a legal title and to restrain proceedings at law will not be ^ entertained, no equitable circumstances appearing in the case and nothing that prevents a full defense at law, complainant not even alleging that he is unable to defend at law.-^ Nor will an injunction be allowed against proceedings at law by a lessor to recover possession of his property demised to a lessee under a lease from year to year, on the ground that complainant has made valuable improve- ments which would be lost to him in case he were dispos- sessed of the property.--'' § 102. Proceedings under landlord and tenant act, when enjoined. When the title to real property is being determined in a case alread.y pending in a court of equity powers, the court may enjoin one of the parties to the cause from proceed- ing before a justice of the peace to recover possession of the premises in controversy under the landlord and tenant act of the state, the relief being granted in such case upon the ground of prevention of a multiplicity of suits.^" 21 Hul)bard v. Jasinski, 4G 111.. -' De Groot v. Receivers, 2 Green 160. Ch., 198. 22 Clarke v. Clarke, 7 R. I., 45. 2.-. West v. Flannagan, 4 Md., 36. 23 Foster. Ex parte, 11 Ark., 304. -''< Daraschroeder v. Thias, 51 Mo., 100. CHAP. II.] ACTIONS AT LAW. 113 IV. Suits ix F()I{p:i(;v C'ourts. ^ 103. The English rule; foreign courts not enjoined, but only the parties. 104. Illustrations of the rule. 105. Court may enjoin parties within its jurisdiction, although the property is abroad; English rule. 106. American rule. 107. Equity declines to interfere when foreign tribunal may do more complete justice. § 103, The English rule; foreign courts not enjoined, but only the parties. The jurisdiction of courts of equity to re- strain proceedings in the courts of a foreign country has been the subject of much contention, resulting in not a little conflict of authority. The jurisdiction of the English Court of Chan- cery thus to interfere with the proceedings of foreign courts, although formerly denied/ may now be regarded as definitely settled and clearly established. In the exercise of this juris- diction the court does not assume to control or interfere with the courts of the foreign country, since any such assumed control would be manifestly inconsistent with the plainest principles of national sovereignty and equality. It rather proceeds upon the undoubted authority which it possesses over persons within its territorial limits and under its juris- diction to restrain them from using the tribunals of a foreign state in such a manner as is contrary to equity and good conscience. When, therefore, the parties to a suit in a foreign country reside within the jurisdiction of the English Court of Chancery, it may in a proper case act in personam upon these parties, and prohibit them from proceeding further with the suit. The proceedings are regarded as purely in personam, the mandate of the court being directed to the parties and not to the tribunal in which the action is pending.- 1 Lowe V. Baker, Free. Chy., 125; - Cranstown v. Johnston, 3 Ves., S. C, sub nom. Love v. Baker, 182, 5 Ves., 277; Bunbury v. Bun- Nels., 103. bury, 3 Jur., 648, affirming S. C, 114 INJUNCTIONS. [chap. II. § 104. Illustrations of the rule. In accordance with these principles the indorsee of a bill of exchange has been re- strained in England from bringing suit upon the bill of exchange in the courts of Ireland, upon grounds which would have warranted the relief against such suit in the English 1 Beav., 313; Carron, etc. v. Mac- laren, 5 H. L. Cases, 416; Beck- ford V. Kemble, 1 Sim. & Stu., 7; Harrison v. Gurney, 2 Jac. & W., 563; Bowles v. Orr, 1 Y. & C, 464; In re Belfast Shipowners Co., (1894) 1 L. R. Ir., 321; Portar- lington V. Soulby, 3 Myl. & K., 104. In the latter case the history of the jurisdiction and the principles upon which it is based are very clearly laid down by Lord Chan- cellor Brougham, as follows: "Soon after the Restoration, and when this, like every other branch of the court's jurisdiction, was, if not in its infancy, at least far from that maturity which it attained under the illustrious series of chan- cellors — the Nottinghams and Mac- clesfields, the parents of equity — the point received a good deal of consideration in a case which came before Lord Clarendon, and which is reported shortly in Free- man's Reports, and somewhat more fully in Chancery Cases, un- der the name of Lowe v. Baker, 2 Freem., 125; 1 Ch. Cas., 67. In Lowe V. Baker it appears that one only of several parties who had begun proceedings in the court of Leghorn was resident within the jurisdiction there, and the court allowed the suhp Hazen v. Lyndonville Bank, Lambert, 49 La. An., 459, 21 So., 70 Vt, 543, 41 Atl., 1046, 67 Am. St. 639. Rep., 680; Hayden v. Yale, 45 La. i^ Miller v. Gittings, 85 Md., 601, An., 362, 12 So., 633. This was an 37 Atl., 372, 37 L. R. A.. 654, 63 action to recover the proceeds or" Am. St. Rep., 52. the sale of the attached property. i- Griffith v. Langsdale, 53 Ark., But see Commercial Soap Works v. 71, 13 S. W., 733, 22 Am. St. Rep., 182. CUAr. II.] ACTIONS AT LAW. 121 decree as will finally determine the controversy, a court of equity in another state, being unable by reason of want of jurisdiction over the real estate and over some of the parties to the cause to afford full relief, will refuse to restrain the proceedings.ifi And upon similar principles an injunction Avill not be granted to restrain creditors having a mortgage upon property in a foreign country from proceeding with a litiga- tion in that country to obtain a decision of the courts there touching the disposition of the mortgaged property. In such a case it will be presumed that the courts of the foreign coun- tr}' are better advised as to their own laws, and equity will therefore decline to interfere, especially when the foreign court has first obtained jurisdiction of the matter.^''' So equity will refuse to interfere with the prosecution of a foreclosure in a sister state upon the alleged ground that the view of the law governing the rights of the parties which would be taken by the supreme court of that state differs from the view of the Supreme Court of the United States or of the state where the relief is sought, the presumption being that the court of the state where the suit is pending will decide accord- ing to law and right.^^ And the English Court of Chancery refused to restrain a creditor of a bankrupt in England, who had not proven his demand in bankruptcy or taken any pro- ceedings therein, from prosecuting a suit against the bankrupt in Scotland for the enforcement of his demand out of real property of the bankrupt there situated.^ ^ And before a court of equity will interfere upon an interlocutory motion to enjoin the prosecution of a suit by reason of a decree or judgment in a foreign country upon the same subject-mat- ter, it should be well satisfied that the foreign decree does complete justice between the parties and covers the entire controversy."^ ifi Harris v. Pullman, 84 111., 20. 14 Am. St. Rep., 397. 1" Moor V. Anglo-Italian Bank, if' Pennell v. Roy, 3 De G., M. & 10 Ch. D., 681. G., 126. IS Carson v. Dunham, 149 Mass., -■" Ostell r. Le Page, 2 De G., M. 52, 20 N. E., 312. 3 L. R. A., 203, & G., 892. 122 INJUNCTIONS. [chap. II. V. State and Federal Courts. § 108. The question discussed upon principle. 109. Federal courts restricted by legislation from enjoining proceed- ings in state courts. 110. Exceptions to the rule as to federal courts; injunction in aid of removal. 111. When state courts may enjoin proceedings in United States courts. § 108. The question discussed upon principle. Questions of much nicety and of not a little difficulty have frequently arisen touching the relative powers of the state and federal courts, and of the jurisdiction of the one to interfere by the extraordinary aid of an injunction with the action of parties litigant in the other tribunal. The jurisdiction of these courts, although deriving their powers from two separate and dis- tinct sovereignties, is nevertheless co-ordinate in many of the matters which give rise to litigation in either forum, and the consequent danger of conflict between the two systems lends to this branch of the jurisdiction of equity additional impor- tance. Independent of legislation or of judicial authority, it is difficult to perceive any satisfactory reason why the same principles should not apply in determining whether a court of equity, state or federal, should restrain the action of parties litigant in the courts of the other sovereignty as are applica- ble between courts of the same state or sovereignty. The jurisdiction in this class of cases being, as already shown, purely in personam, and the court which grants the injunction in no manner attempting to interfere with or control the action of the court whose suitors are enjoined, it would seem, upon principle, to be competent for a court of equity, state or federal, to restrain parties who are within its jurisdiction and amenable to its process from using the machinery of the other court for purposes of fraud, hardship or oppres- sion. The authority of the decided cases does not, however, support the views here suggested; and, as will be hereafter CHAP. II.] ACTIONS AT LAW. 123 sho-wT3, the courts have usually confined themselves in the granting of injunctions against proceedings in the other tribunal, state or federal, to cases where such relief was neces- sary to protect the prior jurisdiction of the court first acquir- ing control of the parties and of the subject-matter. § 109. Federal courts restricted by legislation from enjoin- ing' proceedings in state courts. The power of the federal courts to interfere by injunction with actions pending in the state courts was, at an early period in the history of the nation, limited and defined by legislation. The judiciary act of 1793 ^ prohibited in express terms the granting of injunctions to stay proceedings in any court of a state. This prohibition has been embodied in the Revised Statutes of the United States in the following provision: **The writ of injunction shall not be granted by any court of the United States to stay pro- ceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceed- ings in bankruptcy."- Except in cases arising under the bankrupt laws of the United States, where the paramount jurisdiction of the federal courts has been frequently protected and enforced by enjoining proceedings against the estate of a bankrupt in the state courts, the courts of the United States have generally submitted to the limitation thus prescribed by Congress, and have ordinarily refused to interfere by in- junction with the action of parties litigant in the state courts.^ And the prohibition contained in the judiciary act 1 Act of Congress, approved s Diggs t?. Wolcott, 4 Cranch, 171); March 2, 1793, ch. 22, § 5, 1 U. S. Chaffin v. City of St. Louis, 4 Dill., Statutes at Large, 334, 335. 19; Moore v. Holliday, 4 Dill., 52; 2 Revised Statutes U. S., § 720; Preeney i\ First National Bank, 1 U. S. Comp. Stat. 1901, p. 581. 3 McCrary, 622; United States r. As to whether this provision is Parkhurst-Davis Mercantile Co., applicable to the courts of the Dis- 176 U. S., 317, 20 Sup. Ct. Rep., trict of Columbia, thereby pro- 423; Gates r. Bucki, 4 C. C. A., 116, hibiting them from enjoining pro- 53 Fed., 961; Rensselaer & S. R. ceedings in state courts, see Keane Co. v. Bennington & R. R. Co., IS V. Chamberlain, 14 App. D. C, 84. Fed. 617. 124 INJUNCTIONS. [chap. II, of 1793, being regarded as extending to all cases except where otherwise provided by the bankrupt laws of the United States, the federal courts have refused to enjoin the prose- cution in the state courts of suits concerning the settlement of the estates of decedents, brought by persons claiming inter- ests therein.-* And this prohibition is held to be applicable to probate proceedings in the administration of the estate of a deceased person, and a federal court therefore has no author- ity, upon a bill filed by the executor and a legatee under the will of a decedent, probated in a foreign state, to enjoin an administrator appointed by a state court from distributing personalty among the heirs at law contrary to the provisions of the will.-'' And a petition for a receiver in aid of a judg- ment rendered in a state court falls within the provision of § 720 and a federal court is therefore without jurisdiction to enjoin such a proceeding.*' So a federal court has no jurisdic- tion to restrain a police officer from serving warrants of arrest issued by a state court for the violation of municipal ordi- nances which are alleged to be repugnant to the constitution of the United States.'^ And the circuit courts of the United States have no jurisdiction to interfere by injunction with the possession or control of property which is in possession of a state court having jurisdiction over the matter.^ Nor have these courts power to enjoin the execution of a judgment of a- state court upon the ground that it has been superseded by a writ of error from the Supreme Court of the United States, or to restrain state officials or others from disregarding such supersedeas. '^ * Haines i'. Carpenter, 1 Otto, " Yick Wo v. Crowley, 26 Fed., 254; Dial v. Reynolds, 6 Otto, 340. 207. 5 "Whitney v. Wilder, 4 C. C. A., ^ Hutchinson v. Green, 2 Mc- 510, 54 Fed., 554. Crary, 471; S. C, 6 Fed., 833; Do- c Mutual Reserve F. L. Assn. v. mestic & F. M. Society v. Hinman, Phelps. 190 U. S., 147, 23 Sup. Ct. 13 Fed., 161. Rep., 707, affirming S. C, 50 C. C. « Murray v. Overstolz, 1 Mc- A., 339, 112 Fed., 453. Crary. 606; S. C, 8 Fed., 110. CPIAP. II. J ACTIONS AT LAW. 125 §110. Exceptions to the rule as to federal courts; injunc- tion in aid of removal. It is to be observed, however, that the restriction thus imposed upon the federal courts by the judi- ciary act of 1793 is construed as limited to actions begun in the state courts before proceedings are instituted in the federal courts, and is not applicable where the jurisdiction of the federal courts has first attached.^*^ And the test as to the priority of jurisdiction would seem to be not the date of com- mencing the suit but of acquiring jurisdiction of the defendant by personal service of process.^^ And the federal courts being empowered to issue all writs which may be necessary for the exercise of their respective jurisdictions,^- it is held that when they have acquired jurisdiction over a corporation in an action to compel it to respond to plaintiff for a pecuniary demand, they may enjoin the corporation from taking steps in a state court to procure its dissolution.^^ So a federal court, having first acquired jurisdiction, may enjoin the attor- ney-general of a state from instituting in the courts of the state proceedings for the collection of a penalty imposed by an alleged unconstitutional law of the state. ^^ So where a cause 10 French v. Hay, 22 Wal., 250; power of the federal courts, which Julian V. Central Trust Co., 193 have first acquired jurisdiction of U. S., 93, 24 Sup. Ct. Rep., 399, the parties and of the subject-mat- affirming S. C, 53 C. C. A., 438, ter by prior service of process, to 115 Fed., 956; Fisk v. Union Pa- restrain the parties from proceed- cific R. Co., 10 Blatch., 518; Texas ing as to the same subject-matter & P. R. Co. V. Kuteman, 4 C. C. A., in the state courts, see Union M. 503, 54 Fed., 547; Garner v. Sec- L. I. Co. v. University of Chicago, ond National Bank, 16 C. C. A., 86, 10 Biss., 191. 67 Fed., 833; Iron Mountain R. Co. " Pitt v. Rogers, 43 C. C. A., V. City of Memphis, 37 C. C. A., 600, 104 Fed., 387. 410, 96 Fed., 113; Sharon v. Terry, 12 Act of Congress of September 36 Fed., 337; Wadley v. Blount, 24, 1789, 1 U. S. Statutes, 81, 82. 65 Fed., 667; Lanning v. Osborne, Revised Statutes U. S., § 716; 1 79 Fed., 657; Starr v. Chicago, R. U. S. Comp. Stat. 1901, p. 580. I. & P. R. Co., 110 Fed., 3; Stew- i^^ Fisk v. Union Pacific R. Co., art V. Wisconsin Central R. Co., 10 Blatch, 518. 117 Fed., 782; Union Life Ins. Co. i* Starr v. Chicago, R. I. & P. V. Riggs, 123 Fed., 312. As to the R. Co., 110 Fed., 3. In the proceed- 126 INJUNCTIONS. [CIIAP. II. is properly removed from a state to a federal court under the removal acts, and the latter annuls and vacates a decree previously rendered in the state court and dismisses the cause for vrant of equity, the court may properly enjoin the com- plainant who has brought suit upon such decree in another state from proceeding to enforce the decree by such action. In such a case — the court having jurisdiction in personam over the parties, and having control over the cause— it will not permit its jurisdiction to be trenched upon by any other tribunal, and may properly enjoin a party to the cause from proceeding beyond the territorial jurisdiction of the court.^^ So where plaintiff in a replevin suit brought in a state court properly removes it to the federal court, and there obtains judgment in his favor, but the state court proceeds to try the cause and renders judgment against the plaintiff, and an action is then brought in the state court upon the replevin bond, the federal court may enjoin the prosecution of such action, the relief being merely ancillary to its jurisdiction already acquired, and necessary to give proper effect to its own judgment.^ ^ And when a cause instituted in a state court has been properly removed to the federal court and is there ing which was enjoined by the de- Co. v. Peoria & P. U. R. Co., 82 cree of the federal court in this Fed., 943, instead of removing the case, the Supreme Court of Neb- cause to the federal court and then raska refused to recognize the ju- filing a bill for an injunction an- risdiction of the United States ciliary to the suit at law, an court to grant the injunction. Their original bill was filed in the fed- decision, however, is not based eral court seeking to restrain the upon the inhibition of § 720 but action at law in the state court, upon the ground that such a pro- The proper practice, however, as ceeding was a suit against a state suggested in the text, undoubted- within the meaning of the 11th ly is to remove the cause to the Constitutional Amendment. State federal court and then to file an V. Chicago, R. I. & P. R. Co., 61 injunction bill as ancillary there- Neb., 545, 85 N. W., 556; Same v. to. By so doing, legal rights re- Same, 62 Neb., 123, 87 N. W., 188. main for their determination in a i"- French v. Hay, 22 Wal., 250. legal forum and the right of trial 1" Dietzch v. Huidekoper, 103 by jury is preserved. U. S., 494. In Terre Haute & I. R. CHAP. II.] ACTIONS AT LAW, 127 proceeding to judgment, defendant may, by bill filed in the federal court ancillary to the main action, restrain the plain- tiff from the further prosecution of the suit in the state court.^''' So, too, the United States courts may restrain a state officer from such proceedings under a statute of a state as would destroy a franchise created by the United States.^ ^ So, in a proper case, they may enjoin proceedings in their own forum until the determination of the same subject-matter in a suit between the parties in a state court.^^ A further excep- tion has been recognized to the provision of § 720 in the case of a petition filed by a ship-owner in the United States district court of admiralty for the limitation of his liability. In such a case the admiralty court may properly enjoin the prosecu- tion in a state court of an action previously commenced against the ship-owner for the purpose of enforcing his personal lia- bility.2o § 111. When state courts may enjoin proceedings in United States courts. As regards the power of the state courts to interfere by injunction with the action of suitors in the courts of the United States, while no satisfactory reason can be perceived why they should not be governed by the same prin- ciples which apply in administering relief by injunction against vexatious or unwarranted litigation in courts of the same or of a foreign state, they have nevertheless gener- ally refused to interfere by injunction to restrain actions in the federal tribunals. ^i Indeed, the doctrine has been broadly 17 Madisonville Traction Co. v. 332, an injunction was refused in St. Bernard M. Co., 196 U. S., 239, such a case, upon the ground that 25 Sup. Ct. Rep., 251; Baltimore & it was unnecessary to uphold the 0. R. Co. V. Ford, 35 Fed., 170; jurisdiction of the federal court. Abeel v. Culberson, 56 Fed., 329. is Osborn v. United States Bank, Contra, Coker v. Monaghan Mills, 9 Wheat., 738; State Lotter Co. v. 110 Fed., 803; Missouri, K. & T. R. Fitzpatrick, 3 Woods, 222. Co. V. Scott, 4 Woods, 170; S. C, i9 City Bank v. Skelton, 2 13 Fed., 793, where it is held that Blatch., 14; S. C, lb., 26. the federal courts are powerless 20 in re Whitelaw, 71 Fed., 733. to interfere in such cases. And 21 Schuyler v. Pelissier, 3 Ed. in Penrose v. Penrose, 17 Blatch., Ch., 191; Coster v. Griswold, 4 Ed; 128 INJUNCTIONS, [chap. II. asserted that the state courts are wholly destitute of any power or authority for such interference.^^ The better doc- trine, however, undoubtedly is that the state courts may, for the purpose of protecting their jurisdiction when it has first attached over the controversy, enjoin parties who are amenable to their process and subject to their jurisdiction from afterward litigating the same subject in the federal courts.23 Thus, when a state court has first acquired juris- diction of the subject-matter and of the parties, it may enjoin the prosecution of a subsequent suit by the defendant concern- ing the same subject-matter in a federal court in another state. 2-* So, if complainant, having begun his equitable action in a state court, afterward sues at law concerning the same subject-matter in a United States court, and defendant has a whole or partial defense, of which he can not avail in the Ch., 364; Phelan v. Smith, 8 Cal., extraordinary powers by injunc- 520. tion, have never assumed to en- 2a Phelan v. Smith, 8 Cal., 520; join the court itself, but only to Riggs V. Johnson Co., 6 Wal., 166. arrest the action of the parties And in the opinion of Mr. Justice litigant; and this in the exercise Clifford in United States v. Keo- of a jurisdiction strictly in per- kuk, 6 Wal., 514, it is said that: sonam. In Holstein v. County "Orders for an injunction are as Board, 64 S. C, 374, 42 S. E., 180, inoperative upon the process of the it was held that where the United circuit court (of the United States court had sustained the States) for that district as they validity of a statute authorizing -would be if directed to the process the issuing by a municipal corpor- of a circuit court in any other ation of railway-aid bonds, a state district of the United States, be- court, being bound to give full cause the state and federal courts faith and credit to the judgment in their sphere of action are inde- of the federal court, could not en- pendent of any such control." join the issuing of bonds by the While the doctrine as thus stated" municipality for the purpose of is undoubtedly true as regards any paying a balance due upon such <^ffort on the part of a state or railway-aid bonds, federal court to operate by injunc- -•'' Akerly v. Vilas, 15 Wis., 401; tion upon the process of any other Home Insurance Co. v. Howell, 9 I ribiinal, state or national, it should C. E. Green, 238. h(! l)orne in mind that courts of -^ Home Insurance Co. v. How- f-quity, in the exercise of their ell, 9 C. E. Green, 238. CHAP. II.] ACTIONS AT LAW. 129 action at law, complainant may be enjoined from proceeding in the federal court.^^ And where a state court has properly acquired jurisdiction over an action for the recovery of dam- ages ag-ainst a ship-owner in personam for the loss of goods, and a federal court afterward entertains proceedings in admir- alty against the vessel by which the goods were lost, and enjoins plaintiffs in the action in the state court from further proceedings, plaintiffs will still be allowed by the state court to proceed with their action in that tribunal, and it will refuse to enjoin them from so proceeding.^^ But while a state court may, in a proper case, restrain defendants within its jurisdic- tion from proceeding at law for the recovery of real property within the state, yet as to defendants not served with process and residing in other states it will not enjoin them from suing in the federal courts.-" 25Akerly v. Vilas, 1.5 Wis., 401. -^ Worthington v. Lee, 61 Md., 26 Knowlton v. Providence & N. 530. Y. S. Co., 53 N. Y., 76. CHAPTER III. OF INJUNCTIONS AGAINST JUDGMENTS. I. General Features of the Jurisdiction § 112 II. Defense at Law lt>5 III. Judgments Obtained Through Fraud 190 IV. Accident, Mistake, Ignorance and Surprise 209 V. Irregular, Erroneous and Void Judgments 225 VI. Judgments upon Usurious Contracts 232 VII. Judgments upon Gaming Contracts 235 VIII. Set-offs 237 IX. Judgments as Affecting Title 245 X. Court in Which the Judgment was Rendered 265 XI. Injunctions against Awards 273 XII. Judgments by Default and Confession 277 I. General Features of the Jurisdiction. § 112. History of the jurisdiction. 113. Not a favorite jurisdiction. 114. Judgment must be against conscience; diligence required; mer- its must appear. 115. New trial; after discovered evidence; plaintiff must be free from fault. 116. The same; perjury no ground for relief; false answer under oath. 117. The same; what must be shown. 118. Relief not based on error in judgment; not allowed on informa- tion and belief. 119. Sale under execution against third person, when enjoined. 120. The same; relief not allowed where remedy at law; not al- lowed against sale of real estate. 121. Excessive levy not enjoined. 122. Sale of personal property exempt from execution; conflict of authority. 122a. Sale of property of quasi-public corporation enjoined. 123. Judgment paid in whole or in part; conflict of authority as to right to injunction. 124. Jurisdiction not exercised in criminal matters. 130 CHAP. III.] AGAINST JUDGMENTS. 131 § 125. Judgment not enjoined because of want of jurisdiction. 126. Good defense to merits must be shown. 127. Effect of injunction on lien of judgment and execution. 128. Release of errors in judgment enjoined. 129. Ttie same. 130. Amount due must be paid or tendered. 131. Creditor witliout judgment not allowed to enjoin sale of debtor's property under execution. 132. Requisites of bill; parties necessary. 133. When injunction refused; writ of error no bar to injunction. 134. Failure of consideration; accommodation indorser. 135. Injunction against sale under execution, when operative; duty of sheriff; amount of judgment need not be brought into court. 136. Effect of death of plaintiff or defendant. 137. Injunction for or against United States. 138. When tender necessary; injunction as to part of judgment. 139. Minimum limit of jurisdiction; judgment in replevin; two funds. 140. Mortgagees of railroad refused injunction against judgment creditor; superior equitable title. 141. Sale of heir-looms, injunction refused; valuable work of art. 142. Effect of injunction. 143. Forbearance to principal as ground of injunction in behalf of surety. 144. Judgment against administrator, when enjoined. 145. Effect of statute requiring payment of judgment Into court. 146. Failure to answer material charge; agreement by third person to pay execution. 147. Judgment upon bonds for purchase money, injunction refused. 148. Judgment against city, when enjoined. 149. Defiance of courts effect of. 150. When sheriff not enjoined because of writ of error. 151. Arrangement between judgment debtors, effect of; transfer of judgment by creditor. 152. Guardianship. 153. Joinder of parties. 154. Second execution pending appeal from injunction may be en- joined. 155. Injunction as between holder and indorser of note. 156. Execution against defaulting tax collector not enjoined. 157. Judgments in criminal proceedings not enjoined. 158. Mechanics' lien proceedings. 159. Injunction to restrain sheriff from paying money, bond re- quired. 132 INJUNCTIONS. [chap. III. § 160. Sale of good-will of business, violation of agreement concern- ing. 160a. Assignee of chose in action. 161. Judgment on dismissal of injunction bill. 162. Injunction dissolved on answer denying bill; new trial at law; newly discovered evidence. 163. Damages upon dissolution. 164. Effect of dissolution; when decree for amount of judgment erroneous. § 112. History of the jurisdiction. The jurisdiction of equity to stay proceedings at hiw after judgment recovered is of ancient origin, and although now established beyond dis- pute it was formerly the cause of frequent and violent contests between the chancellors and common law judges. It was insisted by the latter that after verdict equity was powerless to enjoin the proceedings, and that the Court of King's Bench would not permit a judgment creditor to be enjoined from following up his judgment at law. The jurisdiction may be distinctly traced to the beginning of the reign of Edward the Fourth, and its assertion constituted one of the articles of impeachment against Cardinal Wolsey during the reign of Henry the Eighth. It was not definitely established, however, until the reign of James the First, when a violent contest arose between Lord Ellesmere, who then held the Great Seal, in favor of the jurisdiction, and Lord Chief Justice Coke against it. A reference was had to five of the most eminent lawyers of that time, who reported a series of precedents in favor of the right to interfere, and that there were cases of its exercise even after execution. The report being confirmed by the King, an end was had to the discussions that had so h)ng prevailed, and the jurisdiction has never since been (juestioned.' ' Woodes., Lect. 6, p. 186; 3 lb., although the growing encroach- 56, p. 398; 1 Spence's Eq. Jur., p. ments of the chancellors in this di- 674; ] Hallam's Const. Hist., 340. rection were stoutly resisted by the Illustrations of relief by injunction common law judges. In Michael- against judgments at law may be mas term, Edward IV., A. D., 1483, found in the reign of Edward IV., Ix)rd Chancellor Thomas Rother- CHAP. 111.] AGAINST JUDGMENTS. 133 § 113. Not a favorite jurisdiction. The jurisdiction, al- tliough well established, is not regarded as a favorite one with courts of equity. A bill seeking relief of this nature is scrutinized with great jealousy, and the grounds upon which the interference will be allowed are confessedly somewhat nar- row and restricted. It will not suffice to show that injustice has been done by the judgment against which relief is sought, but it must also appear that this result was not caused by any inattention or negligence on the part of the person ag- grieved ; and he must show a clear case of diligence to en- title himself to an injunction.- The object of the injunction am had granted an injunction af- returnable before us; and when it ter verdict to restrain the plaintiff is returned before us, we will dis- from proceeding to judgment in charge him," adding that they the King's Bench. The verdict in would do all they could to assist question having been rendered at him. Fairfax, J., said that they nisi prius, the matter came on be- would go to the chancellor and ask fore the King's Bench in bank, him to dissolve the injunction, when Hussey, C. J., asked counsel But they added that, if the chan- for plaintiff if they wished to pray cellor wotild not dissolve the in- judgment according to the verdict; junction, notwithstanding it, they to which they replied that they would grant judgment if the party were doubtful of violating the in- prayed it. junction — otherwise they would ^ Robuck y. Harkins, 38 Ga., 174; pray judgment. Fairfax, J.: "Not- Slack v. Wood, 9 Grat., 40; Bate- withstanding the injunction, judg- man v. Willoe, 1 Sch. & Lef., 201; ment might be prayed, for if the Telford v. Brinkerhoff, 163 111., 439, injunction was against the plaint- 45 N. E., 156; Phillips v. Pullen, iff, still his attorney might pray 45 N. J. Eq., 5, 16 Atl., 9; Brick his judgment, or e contra." Hus- v. Burr, 47 N. J. ..q., 189, 19 Atl.,* sey, C. J., announced that they 842; Spokane Coop. M. Co. v. Pear- had communed over the matter son, 28 Wash., 118, 68 Pac, 165. and saw no difficulty that would See also Boley v. Griswold, 2 come to the party if he prayed Mont., 447; Stilwell v. Carpenter, judgment, since the penalty men- 59 N. Y., 414, reversing S. C, 1 tioned in the injunction could not Thomp. & C, 615; Cairo & F. R. be levied at law; and there was Co. v. Titus, 12 C. E. Green, 102; nothing left but imprisonment in Morris v. Edwards, 62 Tex., 205. the Fleet; and if the chancellor The general principle upon which should commit a man to the Fleet, the relief is founded is well stated "we will grant a habeas corpus, by Lord Redesdale in Bateman v. 134 INJUNCTIONS. [chap. III. is to prevent the person against whom it issues from availing himself of an unfair advantage, resulting from fraud, acci- dent, mistake or otherwise, the enforcement of which is against conscience.^ § 114. Judgment must be against conscience ; diligence re- quired; merits must appear. The general principle underly- ing the jurisdiction is that it must be against conscience to execute the judgment sought to be enjoined. And it must clearly appear that the person aggrieved could not avail him- self at law of the equities relied upon to enjoin the judg- ment; or, if he was in a position to avail himself of such equities in defense of the action at law, that he was pre- vented from so doing by accident, mistake or surprise, or by fraud of the adverse party unmixed with laches or negligence of his own.* In accordance with this principle a judgment Willoe, 1 Sell. & Lef., 201, as fol- lows: "It is not sufficient to show that injustice has been done, but that it has been done under cir- cumstances which authorize the court to interfere. Because if a matter has been already investi- gated in a court of justice accord- ing to the common and ordinary rules of investigation, a court of equity can not take on itself to enter into it again. . . . Thf^. Inattention of parties in a court of law can scarcely be made a sub- ject for the interference of a court of equity. There may be cases cognizable at law, and also in equity, and of which cognizance can not be effectually taken at Vaw; and therefore equity does sometimes interfere, as in cases of complicated accounts, where the party has not made defense be- cause it was impossible for him to do it effectually at law; so where a verdict has been obtained by fraud, or where a party has pos- sessed himself improperly of some- thing by means of which he has an unconscientious advantage at law. which equity will either put out of the way or restrain him from using. But without circumstances of that kind I do not know that equity ever does interfere to grant a trial of a matter which has been already discussed in a court of law — a matter capable of being dis- cussed there, and over which the court of law had full jurisdiction." 3 Little V. Price, 1 Md. Ch., 182; Pearce v. Olney, 20 Conn., 544; Stanton v. Embry, 46 Conn., 595. * Wingate v. Haywood, 40 N. H., 437; Wierich v. De Zoya, 2 Gilm., 385; Wright v. Eaton, 7 Wis., 595; Ableman v. Roth, 12 Wis., 81; Lit- tle V. Price, 1 Md. Ch., 182; Slack V. Wood, 9 Grat., 40; Marine Ins. Co. V. Hodgson, 7 Cranch, 332; CHAP. III.] AGAINST JUDGMENTS. 135 will not be enjoined where there is no evidence of a good de- fense to the merits, or that the judgment is contrary to equity and against conscience.^ A fortiori will the court refuse to in- terfere with the enforcement of a judgment where it would be against equity and good conscience to enjoin it.*^ And Dugan V. Cureton, 1 Ark., 31; An- drews V. Fenter, lb., 186; Watson V. Palmer, 5 Ark., 501; Conway v. Ellison, 14 Ark., 360; Bently v. Dillard, 6 Ark., 79; Hempstead v. Watkins, lb., 317; Menifee's Ad- ministrators V. Ball, 7 Ark., 520; McCann v. Otoe Co., 9 Neb., 324; Kevins v. McKee, 61 Tex., 412; Headley v. Bell, 84 Ala., 346, 4 So., 391; Darling v. Mayor, 51 Md., 1; Gould V. Loughran, 19 Neb., 392, 27 N. W., 397; Knox County v. Harshman, 133 U. S., 152, 10 Sup. Ct. Rep., 257; Skirving v. National Life Ins. Co., 8 C. C. A., 241, 59 Fed., 742; Phillips v. Pullen, 45 N. J. Eq., 5, 16 Atl., 9; Brick v. Burr, 47 N. J. Eq., 189, 19 Atl., 842; Bailey v. Stevens, 11 Utah, 175, 39 Pac, 828. 5Ableman v. Roth, 12 Wis., 81; Hazeltine v. Reusch, 51 Mo., 50; Ratto V. Levy, 63 Tex., 278; Davis V. Overseer of the Poor, 40 N. J Eq., 156; Muse v. Wafer, 29 Kan. 279; Wilson v. Shipman, 34 Neb. 573, 52 N. W., 576, 33 Am. St. Rep. 660; Lininger v. Glenn, 33 Neb. 187, 49 N. W., 1128. See also Mas terson v. Ashcom, 54 Tex., 324. In Ableman v. Roth, 12 Wis., 81, the ground relied upon in support of the injunction to the judgment at law was that it was obtained through trickery of plaintiff's at- torneys in forcing the case to trial in violation of a verbal agreement to the contrary. There was no evidence offered of a good defense at law upon the merits. Dixon, C. J., says: "Upon the second rea- son we say that all courts and writers agree that equity inter- feres to stay proceedings at law only to prevent injustice by the unfair use of the process of the courts in which proceedings are pending. The fundamental and governing principle is that^^it is against conscience to permit the party enjoined to proceed. In case of a judgment it must be shown to be against conscience to allow it to be executed; otherwise the powers of the court will not be called into exercise. In addition to this, the injured party must show either that he could not have availed himself of the facts which make it unjust in the court of law, or that he was prevented from so doing by fraud, accident or mis- take, without negligence on the part of himself or his agents (2 (Story's Eq. Jur., § 887, and cases there cited). Courts of equity will not interfere to grant a new trial where no substantial right has been lost, and no unfair advan- tage gained, simply because by some trick or artifice a judgment which is just and equitable in itself has been obtained in advance of the time when it would other- wise have been rendered." fi Skirving v. National Life Ins. Co., 8 C. C. A., 241, 59 Fed., 742. 136 INJUNCTIONS. [CIIAI'. HI. where complainant fails to show due diligence in availing him- self of his defense at law, an injunction already granted may be dissolved, even though no answer is yet filed, it having been improperly awarded in the first instanceJ And much stronger proof of diligence and freedom from fault is required where it is sought to enjoin the enforcement of a judgment than upon a motion for a new trial in the court in which the judgment was rendered.^ And, in general, the lack of reason- able diligence upon the part of a defendant in looking aftei- his interests in a pending action at law will be sufficient to prevent him from obtaining equitable relief against a judg- ment rendered against him." And unless required so to do by motives of public policy the court never will, against equity and conscience, arrest the progress of proceedings at law.^" §115. New trial; aftsr discovered evidence; plaintiff must be free from fault. The jurisdiction under discussion is fre- quently exercised by courts of equity upon a bill whose pur- pose is to procure a new trial in the action at law as well as to enjoin the judgment already obtained; and upon a bill of this nature, if the evidence discloses sufficient ground for a new trial by reason of newly discovered testimony, it would seem to be proper to enjoin the collection of the judgment." But the discovery after the final decision of a cause of new testimony tending to establish the same defense relied upon on the trial of the action will not of itself authorize an in- junction against the judgment,^- especially if the new testi- mony might, by reasonable inquiry, have been elicited upon the former trial.^-'' And in order to obtain an injunction - Slack V. Wood, 9 Grat., 40. " Brown v. Luehrs, 79 111., 575. >< Village of Celina v. Eastport And see Ferrell v. Allen, 5 West Savings Bank, 15 C. C. A., 495. 68 Va., 43. Fed., 401. '^Campbell v. Briggs, 3 Rob. :» Hollinger v. Reeme, 138 Ind.. fl.a.), 110: Ware v. Horwood, 14 363, 36 N. E., 1114, 24 L. R. A., 46, Ves., 31. 46 Am. St. Rep., 402. '•! Cairo & F. R. Co. v. Titus, 12 "•Craig r. Ankeney, 4 Gill, 225. C. E. Green, 102; Kirby v. Pas- CllAl'. lli.| AGAINST JUDGiMEXTS. 137 against a judgment and a new trial upon tlie ground of newly discovered evidence, the plaintiff must show clearly that it WHS through no fault or negligence upon his part that the evidence was not discovered in time to avail at law ; and where the discovery was made before the expiration of the time in which a motion for a new trial could have been made, but the plaintiff failed to take steps to secure it, the relief will be denied.^ ^ Where, however, facts material to establish the de- fense have been discovered since the trial, which the defend- ant could not sooner have discovered by the use of ordinary diligence, or where they have been fraudulently concealed, the relief may be allowed. i-"' So if the after discovered evi- dence shows a mistake or miscalculation on the part of the jury, such as, if discovered in time, would have furnished good ground for a new trial, the judgment will be restrained.^" And where the defense relied upon was fraud as to some of the debts out of which the action grew, but the fraud was not established, the defendant is entitled to an injunction restraining the judgment on the ground of after discovered evidence establishing fraud as to some of the debts, but not questioning others.^" And the misconduct of a jury which would have been a sufficient basis for a new trial, but which, through no fault of the complainant, was not discovered until it was too late to make an application therefor, constitutes sufficient ground for an injunction against a judgment.^ '^ But a judgment will not be enjoined upon grounds which had been relied upon on a motion for a new trial, and which had on such motion been held insufficient.^'^ Nor will an injunction cault, 53 Md., 531; Gorsuch v. uel, 2 Heisk., 329. Thomas. 57 Md., 334; Carolus v. i« Rust v. War, 6 Grat, 50. Koch, 72 Mo., 645. '■ Blllups v. Sears, 5 Grat., 31. !•» Snider v. Rinehart, 20 Col., '« Piatt v. Threadgill, 80 Fed., 448. 39 Pac, 408. 192. i5Baltzell V. Randolph, 9 Fla., '^'Matson v. Field, 10 Mo., 100; 366; Gainsborough v. Gifford, 2 Telford v. Brinkerhoff, 163 111.. P. Wms., 424; Hickerson v. Raig- 439, 45 N. E., 156. 138 INJUNCTIONS. [chap. III. be allowed for the purpose of obtaining a new trial when the party aggrieved has already obtained a new trial at law, but through his own negligence has lost the opportunity of making his defense.-^ And a judgment will not be enjoined upon grounds arising after its recovery, the judgment debtor having had a full hearing in the action at law.-^ § 116. The same; perjury no ground for relief; false answer under oath. As illustrating the grounds upon which equity interferes by injunction against a judgment at law and for the purpose of obtaining a new trial, it is held that where com- plainant shows matter sufficient to have defeated a recovery in the action at law, but the defense was not interposed in that action because not discovered until after judgment and until too late to move foi a new trial, the judgment should be enjoined, sufficient reason being shown why the defense was not discovered in time to be used in the action at law.^- Equity will not, however, restrain the enforcement of a judg- ment at law because of newly discovered evidence tending to show payment of the demand upon which the action is brought, when such evidence is clearly insufficient to sustain the defense of payment.^^ Nor will a judgment* be enjoined upon the ground of newly discovered evidence in the ab- sence of any proof of diligence regarding the production of or effort to produce such evidence upon the trial of the ac- tion.-^ Especially will the relief be refused when the failure to acquire knowledge of the defense in time to defend at law resulted from the negligence and laches of the defendant himself, and when he has been guilty of inexcusable negligence in ignoring facts sufficient to put a prudent man upon in- quiry as to the matters of defense. -•'^ Nor does it afford suf- 2'» Dodge V. Strong, 2 Johns. Ch., -■'• Ludington v. Handley, 7 West 228. Va., 269. ^1 Dobbs V. St. Joseph F. & M. I. ^^ Crim v. Handley, 4 Otto. 652; Co., 72 Mc, 189. Hevener v. McClung, 22 West Va., 22 Ferrell v. Allen, 5 West Va., 81. 43. ^■' Hill V. Harris 51 Ga., 628. CHAP. III.] AGAINST JUDGMENTS. 139 ficient ground for enjoining a judgment that perjury was com- mitted by witnesses upon the trial of the action; otherwise litigation would be interminable. ^^ But where the plaintiff in an action at law has obtained a judgment by means of a forged document which was offered in evidence and which resulted in the judgment, and the fact of the forgery was not known to the defendant at the time of the trial and was not discovered until after the expiration of the time in which a new trial could have been sought, relief will be granted since it would be manifestly against conscience to enforce the judg- ment. ^^ And where the defendant in a chancery proceeding, by means of a false answer under oath touching certain fraudu- lent transactions of which complainant could have no knowl- edge except through such answer, persuades complainant to abandon his suit and thereupon procures a dismissal for want of equity, he may afterwards, upon the discovery of the falsity of the answer, be enjoined from setting up the decree as an adjudication in his favor.^s § 117. The same ; what must be shown. It is thus shown that, to warrant a court of equity in enjoining a judgment at law and awarding a new trial in the action because of newly discovered evidence, substantially the same grounds must be shown as are necessary to justify a court of law in awarding a new trial. In other words, it must satisfactorily appear that the judgment is manifestly wrong; that the evi- dence has come to the knowledge of complainant after the trial at law; that he had exhausted all reasonable means to obtain it before the trial, and that it would, upon the trial, produce a different result, and unless these facts sufficiently appear the bill can not be maintained. ^^ Nor will equity en- 26 Cotzhausen v. Kerting, 29 Fed., 589, 12 Sup. Ct. Rep., 62. 821; Bailey v. Willeford, 126 Fed., ^s Graver v. Faurot, 22 C. C. A., 803; Steen v. March, 132 Cal., 616, 156, 76 Fed., 257. 64 Pac, 994; Maryland Steel Co. v. 211 Holmes r. Stateler, 57 111., 209; Marney, 91 Md., 360, 46 Atl., 1077. Bloss v. Hull, 27 West Va., 503. 27 Marshall v. Holmes, 141 U. S., 140 INJUNCTIONS. [chap. III. tertain a bill of this nature unless complainant can impeach the justice of the verdict at law by facts of which he could not before avail himself by reason of accident, mistake or fraud in the conduct of his adversary. And the inquiry is whether, if the judgment were set aside and a new trial awarded, complainant, upon the showing made, would be en- titled to a recovery in the action at law.""^ Where, therefore, a judgment has been rendered Avithout fraud being practiced upon the defendant, and by consent of her attorney, who was employed by defendant's husband, acting as her agent and under a power of attorney, the judgment will not be en- joined and a new trial awarded because of the sickness of defendant at the time of the rendition of the judgment, no valid defense to the action being shown.-^^ But where a new trial has been granted unconditionally in a cause, the effect of which is to vacate a judgment previously rendered therein as effectually as if the judgment had been set aside in express terms, and an attempt is afterward made to enforce such judgment by levy and sale, equity may properly interpose by injunction to restrain its enforcement.^^ §118. Relief not based on error in judgment; not allowed on information and belief. It is important to observe in the consideration of this branch of the preventive relief extended by courts of equity that they do not interfere with judgments at law upon the ground that the judgment was erroneously rendered, but only upon the ground that its enforcement would be contrary to equity and good conscience, as evidenced by facts of which the aggrieved party could not avail himself as a defense at law; and this being made to appear, a proper case is presented for enjoining the enforcement of the judg- ment. ^-"^ Hut the legal presumption being in favor of the ■••<> Cotton V. Hiller, 52 Miss., 7. "- Rickets r. Hitchens, 34 Ind., • 1 Newman v. Morris, .^2 Miss., 348. 402. ■ •■ Now York & H. R. Co. v. Haws, nC, N. Y., 175. CHAP. III.] AGAINST JUDGMENTS. 141 legality and fairness of a judgment and execution, equity will not enjoin their enforcement upon a bill alleging fraud and collusion when the allegations are made only upon in- formation and belief, and are positively denied by the affi- davit of one of the parties charged with the fraud.^* § 119. Sale under execution against third person, v^rhen en- joined. The aid of an injunction is frequently sought for the purpose of preventing a threatened sale of one's property under .execution against a third person. While the authorities are not wholly uniform or reconcilable upon this question, the better rule and that having the clear weight of authority in its support undoubtedly is that, where one's personal prop- erty is taken in execution to satisfy the debt of another, equity may interfere for the purpose of retaining the property in specie, notwithstanding the remedy at law for the recovery of the property or of damages for its detention. The jurisdic- tion is akin to that entertained by courts of equity to compel a performance of contracts in specie, and is founded upon the necessity of protecting property rights where courts of law afford at best but uncertain and insufficient reparation in damages.3^ And a levy under an execution against third per- a* Jones V. Thacher, 48 Ga., 83. it is competent to a sheriff having 35 Watson V. Sutherland, 5 Wal., doubts as to the title of the pi-op- 74; Hardy v. Broaddus, 35 Tex., erty taken in execution to de- 668; Poincy v. Burke, 28 La. An., mand from the creditor an Indem- 673; Lewis v. Daniels, 23 La. An., nifying bond pursuant to the act 170; Deville v. Hayes, 23 La. An., in such case made and provided, 550; Wilson v. Butler, 3 Munf., yet neither of those remedies are 559. The grounds of the jurisdic- in exclusion of a proceeding in tion in such cases are well set equity having for its object the re- forth in the opinion of the court in tention of the property in specie. Wilson V. Butler, as follows: "Al- Every argument on which the jur- though a party whose property is isdiction of the courts of equity taken in execution to satisfy the to compel a performance of a con- debt of another may proceed to re- tract in specie is founded is sup- cover that property or damages for posed to hold with equal force at the taking and detaining thereof least in favor of retaining a sub- in a court of law; and although ject of property which another, 142 INJUNCTIONS, [chap. III. sons upon property owned iona fide by complainant and which constitutes his stock in trade presents such elements of ap- prehended damage and injury as are not susceptible of relief by action at law, and constitutes sufficient ground for an in- junction/'^^ So a landlord having a prior lien for rent upon property on the demised premises, and having issued his dis- tress warrant, may enjoin a sale of such property under e^xecu- tion against the tenant.^'^ And one who has purchased per- sonal property from a judgment debtor may enjoin a sale of the property under execution until other property subject to execution has been first exhausted.^^ So, where a judgment creditor is proceeding to levy his execution and sell the prop- erty of his judgment debtor pending proceedings in garnish- ment against the latter, the debtor is entitled to restrain the collection of the judgment pending such proceedings, since without such relief he might be compelled to pay the judg- ment twice.^^ And where property has been illegally taken in execution under a judgment which is not subject to the lien of the judgment, as in the case of individual property of a member of a school district which is seized to satisfy a debt of the district, its sale under execution may be enjoined.'**^ So equity will enjoin the sale of stock in a corporation by a sheriff proceeding under a judgment against a former owner of the stock, at the instance of one who has received an as- signment of the shares and holds the certificates thereof but having no titie thereto, claims to lb., 416; Baker v. Rinehard, 11 arrest and dispose of by means of West Va., 238; Zanhizer v. Hef- an execution, rather than turn the ner, 47 West Va., 418, 35 S. E., 4; rightful owner round to seek an Payne v. Graham, 23 La. An., 771; uncertain and inadequate repara- Chappell v. Cox, 18 Md., 513; Amis tion in damages." And see Wal- v. Myers, 16 How., 492. ker V. Hunt, 2 West Va., 491 ; Mc- 36 McCreery v. Sutherland, 23 Farland v. Dilly, 5 West Va., 135; Md., 471. Ford V. Rigby, 10 Cal., 449; Mc- 37 Click v. Stewart, 36 Tex., 280. Creery v. Sutherland, 23 Md., 471. 38 Sidener v. White, 46 Ind., 588. But see, contra, Lewis v. Levy, 16 "o Keith v. Harris, 9 Kan., 386. Md., 85; Freeland v. Reynolds, ^o Kenyon v. Clarke, 2 R. L, 67. CHAP. III.] AGAINST JUDGMENTS. 143 who has failed to have the stock transferred upon the books of the company, where neither the statute nor the by-laws of the corporation require that the stock shall be transferable only upon the books of the company.^^ But where it is sought to enjoin a sale by a sheriff under execution of property alleged to be held in trust for a third person, the bill should set forth the judgment and execution with sufficient particularity to give color of right in the sheriff to make the levy and sale.'*^ And in such case the bill should also give color of right in the alleged trustee, since otherwise there is nothing to enjoin.*^ § 120. The same ; relief not allowed where remedy at law ; not allowed against sale of real estate. To the general rule as thus illustrated there are certain exceptions deserving of notice, but which are themselves based upon well established principles pertaining to the law of injunctions. And first, it is to be noticed that in this class of cases, as in all others where the extraordinary remedy of injunction is sought, the courts decline to interfere to restrain the sale under execu- tion against a third prson when a plain and effectual remedy is provided by law for determining the question of title to the property levied upon. In such cases the courts apply the familiar rule denying preventive relief by injunction where a sufficient remedy exists at law; and if no sufficient reason is shown for not resorting to the remedy at law, the person aggrieved will be remitted to that remedy.'*'* As illustrating the rule, it is held that the relief should be denied where it does not appear that the chattels are of peculiar value to the owner or that the threatened levy and sale would result in collateral or consequential damage."*^ So a court of equity 41 Allen V. Stewart, 7 Del. Ch., Hunt, 2 West Va., 491; Zanhizer 287, 44 Atl., 786. V. Hefner, 47 West Va., 418, 35 S. •«2 Trueblood v. HollingS'wortli, E., 4; Beatty v. Smith, 14 S. Dak., 48 Ind., 537. 24, 84 N. W., 208; Bostic v. Young, •13 Id. 116 N. C, 766, 21 S. E., 552. 44 Ferguson v. Herring, 49 Tex.. 4.'; Allen v. Winstandly, 135 Ind., 126; Baker v. Rinehard, 11 West 105, 34 N. E., 699. Va., 238, criticising Walker v. 144 INJUNCTIONS. [chap. III. will not interpose by injunction to prevent a sale of com- plainant's real estate under execution against another, since the question of title to real estate is ordinarily to be determined at law, and a mere trespass will not be enjoined unless the legal remedy is inadequate.^^ Nor will the aid of an in- junction be extended in behalf of one claiming under a fic- titious or fraudulent sale from a judgment debtor, made with the intent to prevent his creditors from reaching the property, to restrain a sale of the property thus transferred under execution against the debtor.'*'^ So a sale of chattels under execution will not be enjoined when it is not shown that any injury will result for which full and adequate relief may not be had at law.^'^ And where a judgment debtor has consigned property to his factors or brokers, who have received a bill of lading as security for advances made by them to the former, but before they receive the property it is levied upon under execution against the debtor, an injunc- tion will not be granted in behalf of the factors to prevent the levy.'*^ As further illustrating the general principle that equitable relief will not be granted against judgments where there is an adequate remedy at law, it is held, in a case where complainant seeks to enjoin the enforcement of a judg- ment of a justice of the peace upon the ground that an appeal has been taken but the justice refuses to approve the appeal bond, that the relief should be denied since the complainant has an adequate remedy by mandamus against the justice.^" 4«5 Wilson ;■. Hyatt, 4 S. C, 369; •«'< Still well v. Oliver, 35 Ark., Bostic V. Young, 116 N. C, 766, 21 184; Jacks v. Bigham, 36 Ark., S. E., 552. And see, for a discus- 481. But in Washington a con- sion of the doctrine in cases of trary rule would seem to prevail, sales of real estate under execution Grant v. Cole, 23 Wash., 542, 63 against a third person, chapter VI, Pac, 263. poHt, § 367 et seq. "> Chaffraix v. Harper, 26 La. *^ Mora ('. Avery, 22 La. An., 417; An., 22. Lewis V. Dinkgrave, 24 La. An., co Boyd v. Weaver. 134 Ind., 266, 489. 33 N. E., 1027. t'llAl". 111. J ACAINSI' .iriXi.MKNTS. 145 § 121. Excessive levy not enjoined. The fact that a shL-rift" in levying an execution upon property of a judgment debtor makes an excessive levy does not of itself justify a resort to the writ of injunction when full relief may be had in such case by application to the court in which the judgment was rendered.^^ Nor can a judgment debtor enjoin a sale under execution upon the ground that the sheriff has seized immov- able property when he should, under the law of the state, have first levied upon movable property, when the debtor refuses upon the application of the sheriff to point out property on which to levy.^- § 122. Sale of personal property exempt from execution ; conflict of authority. Upon the question of the right of a judgment debtor to enjoin a sale of his personal property under execution, upon the ground that it is exempt by law from sale under judicial process, the authorities are con- flicting. Thus, it has been held in Texas that a sale of per- sonal property which is exempt from execution may be re- strained by the judgment debtor,^^ and a similar doctrine prevails in Nebraska ;''''^ while in North Carolina it is held that such a sale will not be enjoined upon the application of the debtor, but he will be left to pursue his legal remedy ;^^ and the rule has thus been announced in Oregon.-'*'' Upon principle, it is. difficult to perceive any satisfactory reason for interfering by injunction in such cases, since adequate relief may usually be had by an action at law. 51 Palmer v. Gardiner, 77 111., ■'■^ Nichols v. Claiborne, 39 Tex., 143; Hefner v. Hesse, 29 La. An., 363; Stein v. Frieberg. 64 Tex., 149. As to the effect of a bill to 271. enjoin an exec ion for costs upon -^'^ Cunningham v. Conway, 25 the ground that they are ex- Neb., 615. cessive, and for a retaxation of ■'^•'> Baxter v. Baxter, 77 N. C, 118. the costs, see Lockart v. Stuckler, ■''" Parsons v. Hartman, 25 Ore., 49 Tex., 765. 547, 37 Pac, 61, 30 L. R. A., 98. 52 Hefner v. Hesse, 29 La. An., 42 Am. St. Rep., 803. 149. 10 146 INJUNCTIONS. [chap. III. § 122 a. Sale of property of quasi-public corporation en- joined. Where the exemption arises from the fact that the property which it is sought to reach by execution is impressed with a public use, being that of a quasi-public corporation, the relief will be granted upon principles of public policy. Thus, where an execution is about to be levied upon the real estate of a railway or canal company, an injunction is prop- erly granted, thereby preventing the corporation from being so crippled as to be unable to discharge its public functions.^^ § 123. Judgment paid in whole or in part ; conflict of au- thority as to right to injunction. There is a noticeable want of harmony in the authorities upon the question of the right to enjoin the enforcement of a judgment which has been already paid either in whole or in part. The better considered doctrine upon this subject, and that most in harmony with the general principles underlying the preventive jurisdiction of equity, is that an injunction should not be granted for the purpose of staying or preventing a sale under execution on the ground of payment in whole or in part, and that in all such cases the person aggrieved should be left to pursue his remedy at law.^^ There are not wanting, however, respec- table authorities to the contrary. Thus, it is held that if the judgment has already been fully paid, sufficient ground is presented for enjoining any attempt at its further enforce- ment.^^ Or, if the judgment has been paid in part, and a lawful tender is made of the residue, it is held that equity may properly enjoin the further enforcement of the judg- ment.^*' And when a judgment is rendered in behalf of one 57 Brady v. Johnson, 75 Md., dinal v. Eau Claire L. Co., 75 445, 26 Atl., 49, 20 L. R. A., 737; Wis., 404, 44 N. W., 761. And see McColgan v. B. B. R. Co., 85 Md.. Parker v. Jones, 5 Jones Eq., 276; 519, 36 Atl., 1096. Hall v. Taylor, 18 West Va., 544. 5>t Lansing v. Eddy, 1 Johns. And see Buster v. Holland, 27 Ch., 49; Foster v. Wood, 6 .Tohns. West Va., 510. Ch., 87; Howell v. Thomason, 34 r,ii Buie v. Crouch, 37 Tex., 53. West Va., 794, 12 S. E., 1088; Car- «<> Bowen v. Clark, 46 Ind., 405. CHAP. III.] AGAINST JUDGMENTS. 147 who occupies a relation of trustee for others as to the de- mand sued upon, and the beneficiaries in the judgment ac- knowledge satisfaction thereof, the trustee, it is held, may be enjoined from collecting the judgment, notwithstanding the beneficiaries, as between themselves and the trustee, have not been paid.^^ So when a judgment is obtained against garnishees in an attachment suit, which they are compelled to pay, an injunction is the appropriate remedy to protect them from the enforcement of a judgment against them and in favor of the original creditor for the same indebtedness.^^ So when an execution is issued for a larger amount than is actually due, it is regarded as proper to grant an in- junction as to such excess.^3 -Qj^i g, failure to credit part payment on a judgment will not warrant an injunction re- straining the enforcement of the entire judgment.^'* And where a judgment has been enjoined because of payments hav- ing been made for which no credit is given, and defendant in his answer admits a partial payment, the injunction will be made perpetual as to such amount, and will be dissolved as to the balance yet due.^^ So if the judgment debtor, dur- ing the pendency of the injunction, should pay a portion of the judgment enjoined, the injunction will be made perpetual as to the amount paid.^^ § 124. Jurisdiction not exercised in criminal matters. The jurisdiction of equity being limited strictly to questions con- cerning civil and property rights, the courts will not in any manner interfere with the execution of judgments in crim- inal matters. An injunction, therefore, will not be granted in behalf of persons convicted of criminal offenses and im- prisoned in a county jail to prevent the use of such jail for 61 Meyer v. Tully, 46 Cal., 70. 64 Cobb v. Hynes, 4 La. An., 150. 62 Allen V. Watt, 79 111., 284. es Perry v. Kearney, 14 La. An., 63 Miles V. Davis, 36 Tex., 690. 401. See also Gentry v. Lockett, 37 6o Tapp v. Beverley, 1 Leigh, 80. Tex., 503. 148 INJUNCTIONS. [chap. III. their confinement upon the ground of its being extremely un- healthy and dangerous to life, since to grant the relief desired in such case would be an interference with the excution of judgment in a criminal cause. And especially will the court decline to interfere in such case when ample provision exists at law for the grievance complained of.*''^ § 125. Judgment not enjoined because of want of jurisdic- tion. The purpose for which the interference is allowed be- ing to prevent injustice, a defect in jurisdiction in the court in which the judgment was rendered will not of itself au- thorize an injunction, if no equitable reason is shown why the judgment should not be enforced.^^ Even if the judg- ment is altogether void for want of jurisdiction equity will not enjoin, but will leave the parties to their remedy at law "by certiorari. '^'^ § 126. Good defense to merits must be shown. No rule of the law of injunctions is more firmly established than that which requires a suitor who seeks the aid of equity against the enforcement of a judgment to allege and show, not only that it would be against equity and good conscience to exe- cute the judgment, but that he has a good and valid defense to the claim upon which it was founded.'^" The obvious rea- «7 Stuart V. Supervisors of La Harder, 39 Ore., 609, 65 Pac, 1056; Salle Co., 83 111., 341. And see Massachusetts B. L. Assn. v. Lioh- Village of Dolton v. Dolton, 201 miller, 20 C. C. A., 274, 74 Fed., 23; 111., 155, 66 N. E., 323. Rotan v. Springer, 52 Ark., 80, 12 "'^ Stokes r. Knarr, 11 Wis., 389; S. W., 156; Burch v. West, 134 Crandall v. Bacon, 20 Wis., 639. 111., 258, 25 N. E., 658; Wilson v. «!> Crandall v. Bacon, 20 Wis., Shipman, 34 Neb., 573. 52 N. W., 639. 576, 33 Am. St. Rep., 660; Raisin 70 Taggart v. Wood, 20 Iowa, 236; Fertilizer Co. v. McKenna, 114 Sauer v. City of Kansas, 69 Mo., Ala., 274, 21 So., 816. In Nebraska 4^; Gifford v. Morrison, 37 Ohio it is held that the court should St., 502; Williams v. Hitzie, 83 not go into the merits of com- Ind., 303; Boyd v. Weaver, 134 plainant's alleged defense further Ind., 260, 33 N. E., 1027: Ratto r. than to determine that a prima Levy, 63 Tex., 278; Melnert v facie defense is presented and is CHAP. III.] AGAINST JUDGMENTS. 149 son for the rule is that the eourt will not lend its aid and grant a new trial where the final result will not be changed. An exception has been recognized by some courts in cases where the judgment is absolutely void for want of service of process but these cases only serve to emphasize the rule.'^^ The doctrine has been carried even further, and it has been held that it must clearly appear that the plaintiff in the ac- tion at law had in fact no cause of action. This being shown to the satisfaction of the court, the judgment will be enjoined if there has been no laches or negligence upon the part of complainant.'- And it is not sufficient to bring the case within* the rule that the bill should allege generally that the com- plainant has a good defense to the action at law, and that it Avould be inequitable to enforce it; but the facts constitut- ing such defense should be clearly set forth."-^ But if the judgment, as between the parties thereto, has been fairly obtained, it will not be restrained upon the ground of mere hardship to others.'^'* § 127. Eifect of injunction on lien of judgment and execu- tion. As regards the effect of the injunction upon the lien of the judgment enjoined, it is to be remembered that it operates only in personam upon the judgmen'; creditor, and not upon the judgment itself; the lien is therefore not divested or sus- pended, but only the execution stayed."'' And an injunction urged in good faith. It would ing of a justice of the peace upon seem to follow from this that which no judgment has been ren- when the complainant has made dered, no defense need be shown, out such a prima facie case, the Sare v. Butcher, 141 Ind., 146, 40 injunction should be granted un- N. E., 749. til the ultimate determination of f- Huebschman v. Baker, 7 Wis., that defense in a new trial at law. 542. Bankers Life Ins. Co., v. Robbins, ^y Chicago, B. & Q. R. Co. v. 53 Neb., 44, 73 N. W., 269. Manning. 23 Neb., 552, 37 N. W., -1 See, post, §§ 222 and 229 a. 462; Fickes v. Vick, 50 Neb., 401. And where the wrong complained 69 N. W., 951. of has not even the color of a judg- '* Scott v. Whitlow. 20 111., 310. ment back of it, as the levy of an '"'Miller v. Estill, 8 Yerg., 452; execution based upon a mere find- Anderson v. Tydings, 8 Md., 427. 150 INJUNCTIONS. [chap. III. restraining a sheriff from proceeding with an execution under a judgment does not impair the execution or destroy or im- pair a levy made thereunder. It is therefore competent for the sheriff, after the dissohition of the injunction, to com- plete the proceedings begun under the execution.''^^ But an injunction restraining a judgment creditor from all proceed- ings on his judgment recovered at law has the effect of re- straining him from proceedings in equity as well.'^'^ § 128. Release of errors in judgment enjoined. It has been held that an injunction of a judgment is a release of all errors in the proceedings enjoined.'^^ But even under a statute pro- viding that the injunction shall operate as a release of errors at law, the writ will not have this eft'ect if it only restrains the judgment creditor from further proceedings under his execution without enjoining the judgment itself.^^ And such a statute, it is held, does not apply to proceedings in chancery or to those of an equitable nature ; nor does it apply to judg- ments which are absolutely void, as for want of service of process, instead of being merely erroneous.^" And the bet- ter doctrine seems to be that, in the absence of any statutory enactment upon the subject, the injunction does not neces- sarily operate as a release of errors in the judgment enjoined.*^^ In no event can such an injunction have the effect of releas- ing errors in the proceedings at law except as to the party obtaining the injunction. Thus, a garnishee who enjoins pro- ceedings against himself under the garnishment does not And see Pettingill v. Moss, 3 Minn^ ever technical errors exist in the 222. But see, contra, as to the proceedings at law are released by effect of the lien, Keith v. Wilson, an Injunction against the judg- 3 Met. (Ky.), 201. ment. Hazeltine v. Reusch, 51 -'•• Knox i. Randall, 24 Minn., 479. Mo., 50. 77 Little V. Price, 1 Md. Ch., 182. 7i. St. Louis, A. & T. H. R. Co. v. 7s Price V. Johnson Co., 15 Mo., Todd, 40 111., 89. 433. And in Illinois this is so by «'> San Juan & St. L. M. & S. Co. statute. See McConnell v. Ayres, v. Finch, 6 Col., 214. 3 Scam., 210. So it is held, under «i Gano v. White, 3 Ohio, 20. a statute of Missouri, that what- CHAP. III.] AGAINST JUDGMENTS. 151 thereby release errors that may have occurred in the pro- ceedings against the defendants in attachment.^^ § 129. The same. Where it is provided by statute that a party asking an injunction against the enforcement of a judg- ment shall first release- over his signature all errors in en- tering up the judgment, he is estopped from setting up the fact of his own wrong in having obtained an injunction with- out such release of errors.^^ But a statute providing that the suing out of an injunction against proceedings under a judg- ment at law shall operate as a release of all errors in the judgment does not apply to cases where the act enjoined is itself in violation of law.'^-' And such a statute operates only as a release of such errors as might be assigned for reversal of the judgment in an appellate tribunal, and does not pre- clude the judgment debtor from assailing the judgment for matters dehors the record, as that the judgment was obtained through fraud. ^^ § 130. Amount due must be paid or tendered. As a general rule, he who seeks to restrain the enforcement of a judgment at law or of proceedings under a judgment must first pay or tender payment of the amount really due, and failing to do this he will be denied relief in a court of equity .^^ And if the judgment draws interest, it must be included in the amount so tendered.^''' And when separate judgments for the same cause of action are rendered against each of two wrong-doers, one of such judgment debtors can not enjoin the judgment against himself until satisfaction or payment of one or the other judgment.^^ S2 Taylor v. Ricards, 9 Ark., 378. 502, 5 N. E., 414; Yonge v. Shep- 83 McFarland v. Rogers, 1 Wis., perd, 44 Ala., 315; Smiths. Smith, 452. 75 Tex., 410, 12 S. W., 678. «■* Burge V. Burns, 1 Morris ^^ Eaton v. Markley, 126 Ind., (Iowa), 287. 123, 25 N. E., 150. 8''> Bass V. Nelms, 56 Miss., 502. ss Meixell v. Kirkpatrick, 25 86 Baragree v. Cronkhite, 33 Ind., Kan., 19. 192; Russell v. Cleary, 105 Ind.. 152 INJUNCTIONS. [chap. III. § 131. Creditor without judgment not allowed to enjoin sale of debtor's property under execution. A simple contract creditor, 'vvhose rights are not yet reduced to judgment, is not entitled to an injunction restraining the disposition of his debtor's property under certain judgments alleged to have been obtained in fraud of his rights, even though he has begun suit at law upon his claim. For, until the creditor's rights are established by judgment at law, interference by equity would necessarily^ lead to oppressive and often fruit- less interruption of the debtor in the rightful enjoyment of his property.^" Nor does an attaching creditor, who has not yet reduced his claim to judgment, stand in any better light than one w^ho sues by the ordinary process of the courts; and he will not be allowed to enjoin the disposal of the debt- or's propert}^ on execution, even though the judgments under which the execution issues were fraudulently confessed by the debtor.^" § 132. Requisities of bill ; parties necessary. Where an injunction is sought against proceedings at law under a judg- ment, the bill, as between the parties to the suit at law, is not considered as an original bill. But if other parties are joined in the bill, and different interests are involved, it is to that extent considered as an original bill.^^ To sustain the injunction the bill should show upon what evidence the judgment was found, as well as what defense complainant has against the judgment, and why such defense was not made upon the trial at law.^- And, in general, a perpetual injunction against a judgment will not be allowed unless all v;i Wiggins V. Armstrong, 2 See also Bigelow v. Andress, 31 Johns. Ch., 144; Angell v. Draper. 111., 322. But see, contra, Heyne- 1 Vern., 399; Shirley v. Watts, 3 man v. Dannenberg, 6 Cal., 376. Atk., 200; Bennet v. Musgrove, 2 And see Cogburn v. Pollock, 54 Ves., 51 ; Young v. Frier, 1 Stockt., Miss., 639. 465; Holdrege v. Gwynne, 3 C. E. in Dunn v. Clarke, 8 Pet.. 1. Green. 26. "^ Buntain v. Blackburn. 27 111., 1'" Martin r. Mirhael, 23 Mo., 50. 406. CilAP. in. J AGAINST JUDGMENTS. 153 the parties in whose favor the judgment was rendered are joined as defendants and have filed their answers.*'^ So, as a general rule, no person will be allowed to enjoin a judg- ment to which he is not a party or privy."-* § 133. When injunction refused; writ of error no bar to in- junction. An injunction should not be granted to stay a judgment, the effect of which would be to retry the issue in equity, where complainant does not allege any surprise or fraud in the trial at law, and no defect of evidence, and where he makes no appeal to the conscience of the defendant for a discovery.'''^ Nor will the relief be granted upon grounds which have been fully tried as a defense at law, even though the court may be of the opinion that such defense should have been sustained at law."*' But the effect of a bill in chancery to enjoin proceedings under a judgment being not to revise the proceedings at law, but rather to urge equities independent of the judgment as affording reasons for not enforcing it, the fact that a writ of error has been sued out upon the proceedings at law constitutes no bar to the award- ing of an injunction."''' § 134. Failure of consideration ; accommodation indorser. Failure of consideration is sometimes relied upon as a ground •-'3 Marshall v. Beverly, 5 Wheat., chancery does not draw into ques- 313; Mayes v. Woodall, 35 Tex., tion the judgment and proceed- 687. ings at law, or claim a right to ■'* Jordan's Adm'x v. Williams, 3 revise them. It sets up an equity Rand., 501. independent of the judgment, '••5 Brown v. Street, 6 R3,nd., 1. which admits the validity of that 96 Marine Ins. Co. v. Hodgson, 7 judgment, but suggests reasons Cranch, 332. why the party who has obtained '■•' Parker v. Judges, 12 Wheat., it ought not to avail himself of it. 561. Marshall, C. J., giving the It proposes to try a question en- opinion of the court says: "It is tirely new, whica has not been and contended that an injunction could not be litigated at law. It could not be awarded while the may be brought before the corn- record was before this court on a mencement of a suit at law, pend- writ of error. We do not think ing such suit or after its decision this a valid objection. The suit in by the highest law tribunal." 154 INJUNCTIONS. [chap. III. for enjoining- proceedings under judgments, but the jurisdic- tion in this class of cases is somewhat sparingly exercised. Thus, in the absence of fraud an injunction will not be granted against a judgment obtained on a contract under seal upon the ground that the contract was merely voluntary and with- out consideration, the rights of purchasers and creditors not coming in question.^^ So a failure to perform the covenants in a deed, which covenants were the consideration for the giving of a note, does not constitute sufficient equity to war- rant a court in enjoining a judgment upon the note in favor of a third person to whom it had been transferred.'^^ A court of equity may, however, enjoin a judgment on an assigned note because of failure of consideration where the facts limit- ing the right of recovery are complicated and inappropriate for the determination of a jury, even though the defense was not made at law.^ And where, in a suit prosecuted to a court of last resort, the makers of a promissory note were held not liable on the ground of illegality of consideration, an accommodation indorser was allowed to enjoin a judgment against him on the same note, even though he had not shown diligence in defending at law. In such case the accommoda- tion indorser is regarded in the light of a surety, and, his principal being discharged, the surety should also be dis- charged.^ § 135. Injunction ag-ainst sale under execution, when opera- tive; duty of sheriff; amount of judgment need not be brought into court. It has been held that an order for an injunction to restrain a sale under execution does no;t become operative to stay proceedings under the execution until complainant has complied with the terms of the order by giving the necessary !>8 Stubblefield v. Patterson, 1 i Reese v. Walton, 4 B. Mon., Hayw. (Tenn.), 128. 507. 08 Gridley v. Tucker, Freem. Ch., - Miller v. Gaskins, Sm. & M. 209. Ch., 524. CHAP. III.] AGAINST JUDGMENTS. 155 bond and security.^ And it is considered no contempt of court in such case to proceed with the sale, notwithstanding plaintiff in execution was apprised of the order for the in- junction.^ And when an injunction is served upon a sheriff restraining an execution in his hands, it is his duty to note the fact upon the execution, and to desist from all further proceedings, without, however, releasing the levy.'^ But where proceedings under a judgment are enjoined, the amount of the judgment need not be brought into court unless it appears that there is danger of insolvency.^ And w^hen a court has properly acquired jurisdiction of the cause, and has granted an injunction to restrain the sale of personal property under execution, it may retain jurisdiction for the purpose of award- ing damages for detention of the property.'^ § 136. Effect of death of plaintiff or defendant. The pendency of an injunction to a judgment at law will not in case of the death of the defendant in the action at law pre- vent the revival of the judgment against his personal rep- resentatives. The object of the injunction being to. prevent the enforcement of the judgment by execution until the equities of the case can be decided, a simple revival of the judgment will not prejudice complainant.^ But a judgment will not be enjoined because of the death of plaintiff in the action be- fore it was obtained in his name, and a bill filed for this purpose is demurrable by the legal representatives of the de- ceased. The error, being merely an error of fact, constitutes no sufficient equity to sustain an injunction.^ Nor will a judgment be enjoined because rendered against a defendant 3 Clarke v. Hoome's Ex'rs, 2 t Chambers v. Cannon, 62 Tex., Hen. & M., 23. 293. 4 Id. 8 Richardson v. Prince, 11 Grat., ^' Pettingill v. Moss, 3 Minn., 222. 190. Rodgers v. Rodgers, 1 Paige, o Williamson's Adm'r v. Apple- 426. berry, 1 Hen. & M., 206. 156 INJUNCTIONS. [chap. 111. after his death, since ample remedy may be had at law upon any attempt to enforce such judgment.^^ § 137. Injunction for or against United States. A bill in equity will not lie against the United States to enjoin pro- ceedings under a judgment which has been paid, since the government is not liable to be sued except with its own con- sent given by law. But upon a proper showing in such case a stay of proceedings may be had until an investigation can be made of the facts.^^ Nor will an injunction be allowed in favor of the United States, in the absence of fraud, to restrain a sale of vessels on execution on the ground that they may possibly be taken beyond the jurisdiction and the claim of the government be thereby endangered.^^ § 138. When tender necessary ; injunction as to part of judg- ment. In the exercise of the jurisdiction in restraint of pro- ceedings at law the courts enforce a rigid application of the rule that he who would have equity must do equity. Where, therefore, complainants admit their indebtedness to defend- ant to the full amount of the judgment, they will not be al- lowed an injunction without tendering payment. ^^ And where complainant, seeking to restrain a judgment against himself, admits that he owes a balance to defendant on account of the same matter, equity may require such balance to be brought into court and paid accordingly.^* And in no event should an injunction be allowed against more of the judgment than is shown to be unjust and unconscionable. i-'' Where, however, a bill of review^ is filed after judgment, and in this proceed- ing a reference is had by agreement to a master to report llie amount actually due, and judgment is entered upon his '" Lockridge v. Lyon, 68 Ga., ^^ United States v. Collins, 4 137. Blatch., 142. 11 United States v. McLemore, 4 ^■' Overton v. Stevens, 8 Mo., 622. How., 286; Hill v. United States. n Flickinger v. Hull, 5 Gill, 60. 9 How., 386. 1"' Duncan v. Morrison, Breese, 113. CHAl'. 111.] AGAINST JUDGMEiNTS. 157 report fur a less amount, which is paid, the enforcement of the original judgment may be enjoined. i'' Where the cir- cumstances of the case require it the injunction will be dis- solved as to a part and continued as to the residue.'' And where part only of a judgment has been enjoined the resi- due stands as if it were the original, and draws interest from the date of the judgment.'^ § 139. Minimum limit of jurisdiction; judgment in replevin; two funds. Where by statute a minimum amount is fixed as a limit, under which the courts have no jurisdiction, equity will not restrain the collection of a judgment for less than that amount.'-^ But where a judgment in replevin is in the alteniative form— that is, for the return of the property, or, in default thereof, for the recovery of pecuniary damages— if a tender of the property replevied is made within a reason- able time the judgment creditor may be enjoined from enforc- ing by execution the alternative judgment for money.-*^ Equity will not, however, restrain the enforcement of a judgment because there are two funds frcfm wdiich it may be realized, since the creditor has an undoubted right to pursue his rem- edy in each case until he obtains satisfaction of his debt.-^ § 140. Mortgagees of railroad refused injunction against judgment creditor; superior equitable title. Where a rail- road company has mortgaged its road and equipments to ifi Johnson v. Kitch, 100 Ind., 30. dismissed which seeks to enjoin a 17 Lyles V. Hatton, 6 Gill & J. judgment for an amount less 122. than that sum. York v. Kile, 67 18 Copeland's Adm'r /•. Reese, 111., 233. Wright (Ohio), 728. ^<' McClellan v. Marshall. 19 i» Breckinridge v. McCormick, 43 Iowa, 561; Marks v. Willis, 3«5 111., 491. And under a statute of Ore.. 1, 58 Pac. 526, 78 Am. St. Illinois providing that no writ of Rep., 752. To the same effect, see injunction shall be issued to stay Thompson v. Laughlin, 91 Cal., proceedings under a judgment re- 313, 27 Pac, 752. covered before a justice of the 21 Muscatine r. Mississippi & M. peace for a sum not exceeding R. Co., 1 Dillon, 536. $20, besides costs, a bill will be 158 INJUNCTIONS. [chap. Ill, secure an indebtedness, the mortgagees will not be allowed to enjoin a judgment creditor from satisfying his judgment out of the personal property of the road on the ground that its possession is necessary to enable the company to pay the mortgage, it not appearing that the property remaining after such levy would be insufficient.^^ But a judgment followed by a levy upon lands with notice of a superior equitable title outstanding may be enjoined on payment of the costs at law.^^ § 141. Sale of heir-looms, injunction refused; valuable work of art. An injunction will not be granted to prevent the levy of an execution on certain articles of property on the ground that they are family heirlooms, such as pictures, relics and gifts from deceased friends, where there is no tender of the value of the articles. Nor in such case is the right to an injunction strengthened by the fact that complainant has more than enough property aside from the articles in ques- tion to satisfy all his debts.-'* Nor will equity enjoin the sale under execution of a valuable work of art upon the ground that there is no market for such property at the place where it is to be sold and a sale at such place would therefore result in a great sacrifice.^^ § 142. Effect of injunction. An injunction restraining de- fendant and all other persons from the sale of personal prop- erty until further order of the court is sufficient to prevent a sale of the property in satisfaction of an execution against, defendant, even though the execution be in favor of a per- son not- a party to the bill.-*^ And the effect of an injunction upon a judgment subsequently obtained in violation thereof is to render such judgment null and void, and proceedings ■■^■^ Coe V. Knox County Bank, 10 21 Conn., 148. Ohio St., 412. ■■'■' Trust Co. v. Weaver, 102 ■^■A Gutshall V. Salsberry. Wright, Tenn., 66, 50 S. W., 763. 127. 20 West V. Belches, 5 Munf., 187. ^* Johnson v. Connecticut Bank, CHAP. 111.] AGAINST JUDGMENTS. 159 at law for its enforcement may be enjoined.^'^ But a judg- ment will not be enjoined because complainants have in- stituted another suit at law against the judgment creditors to recover unliquidated damages upon a contract, unless such judgment creditors are shown to be insolvent, or unless other ground exists for believing that the damages to be recovered will not be realized.-^ § 143. Forbearance to principal as ground of injunction in behalf of surety. It is a well settled principle in equity that the granting of time or other indulgence to a principal debtor in pursuance of a valid agreement to that effect operates as a discharge of the surety.-^ It follows, therefore, that a court of equity will, under such circumstances, interfere to restrain proceedings at law against the surety for the collection of the debt.^*^ And where a creditor has entered into an agree- ment with his principal debtor for forbearance to sue, and afterward and notwithstanding such agreement he obtains judgment against the sureties without their being notified of the contract of indulgence, such judgment will be perpetually enjoined on the application of the sureties.^i § 144. Judgment against administrator, when enjoined. The aid of equity may be properly invoked to restrain the enforcement of a judgment against an administrator, the pro- ceedings being had against him in his capacity of administrator, where there are no assets in his hands for its satisfaction.^^ And where an injunction has been allowed in such a case it will be continued until such time as sufficient assets come into the hands of the' administrator to satisfy the judgment in whole or in part, reserving to the judgment creditor the right to show such assets by a sci. fa.^^ 27 Collins V. Fraiser, 27 Ind., 477. 3i Armistead v. Ward, 2 P. & H., -'s Boone v. Small, 3 Cranch C. 504. C, 628. ^--^ Haydon v. Goode, -1 Hen. & 29 2 Story's Eq., §883; Clarke v. M., 460. Henty, 3 Y. & C, 187. ss id. 30 2 Story's Eq., § 883, and cases cited. 160 INJUNCTIONS. [chap. III. § 145. Effect of statute requiring payment of judgment into court. Where it is provided by statute that no injunction shall issue on the application of defendant to stay proceed- ings at law in a personal action after verdict or judgment, un- less the amount of the verdict or judgment be paid into court, such statute applies as well to a bill of interpleader which prays an injunction as to other cases.^* Nor is such statute limited in its operation and effect to the same suit in which the judgment is recovered, its true intent being that one who has obtained a judgment shall not be hindered in any pro- ceedings which he may afterward take for its enforcement, whether by another suit upon the judgment or otherwise.^^ §146. Failure to answer material charge; agreement by third person to pay execution. Where in a suit for an in- junction against a judgment defendant fails to answer a most material charge in the bill, and one on which complainant's equity mainly depends, such admission will be taken as a tacit acknowledgment of the equity of the bill. In such case the relief is properly granted as upon a bill pro confesso.^^ But an agreement by a third person, not a party to the record, with the judgment debtor, that he will pay the execution does not constitute sufficient ground to warrant an injunction against the cxecution.^'^ § 147. Judgment upon bonds for purchase money, injunc- tion refused. A purchaser at a sale made by a trustee under a trust to pay debts, who is also one of the creditors secured in the trust, and who gives a bond for the payment of the purchase money of the property purchased by him at such sale, can not enjoin the collection of a judgment upon such bond merely because he is a creditoi- to a larger amount than ••'•4 Morris C. & B. Co. r. Bartlett, •■"• Page's Ex'r r. Winston's 2 Green Ch., 9. Adm'r, 2 Munf., 298. •"••'• Kinney r. Ogden's Adm'r, 2 '•' Triplett r. Turner, 2 J. J. Green Ch., 168. Marsli, 476. CHAP. 111.] AGAINST JUDGMENTS. 161 he is a debtor, since this would defeat the very object of the trust, which is to secure the creditors.^s ij 148. Judgments against city, when enjoined. An injunc- tion has sometimes been allowed to restrain the enforcement of an execution which was unauthorized and prohibited by positive law. Thus, where under the laws of the state the issuing- of writs of execution against a city is prohibited, another method being provided for satisfying judgments against the city, the seizure and sale of the city's property under execution may be restrained.^^ And when a judgment creditor of a city has received a check or warrant in pay- ment of his judgment, which he has indorsed to a third per- son, he may be enjoined from proceeding with the enforce- ment of his judgment until the return of such warrant.'**^ § 149. Defiance of court, effect of. The action of a judg- ment creditor who places himself in an attitude of hostility and defiance toward the court concerning his judgment would seem, in some instances, to lend additional weight to an application for an injunction against further proceedings under the judg- ment. For example, when plaintiff in a judgment, in defiance of an order of the court dismissing his levy under execution, is proceeding to sell the property levied upon, he may be enjoined from so doing. ^^ So when plaintiff in an action at law has been enjoined from proceeding with his suit, but in violation of the injunction he proceeds with his suit and re- covers judgment, it is held that, equity having taken juris- diction of the entire matter in controversy upon the bill for injunction, complainant in that suit is entitled, prima facie, to have the judgment perpetually enjoined, unless defendant can show cause to the contrary.^2 •■is Capehart v. Etheridge, 63 N. *o City of New Orleans v. Smith, C, 353. 24 La. An., 405. 39 City of New Orleans r. Ruleff, 41 Scogin v. Beall, 50 Ga., 88. 23 La. An., 708; City of New Or- 4-' Patterson v. Gordon, 3 Tenn. leans v. Smith, 24 La. An.. 405. Ch., 18. 11 162 INJUNCTIONS. [chap. III. § 150. When sheriff not enjoined because of writ of error. It has been held that a sheriff should not be enjoined from selling under execution upon the ground that proceedings have been taken to reverse the judgment on error, and a bond staying proceedings in the court below has been duly filed and approved, when it is not shown that the sheriff had any knowledge or information concerning the proceedings stay- ing the' execution of process, since he should be informed of what has been done before subjecting him to the vexation and costs of a suit.^^ §151. Arrangement between judgment debtors, effect of; transfer of judgment by creditor. The fact that judgment debtors have, as between themselves, effected an arrangement by which the property of one should be turned out in satis- faction of the execution, and that he should be indemnified therefor, affords no ground for enjoining the enforcement of execution against the property of the other debtor, even though plaintiffs in the execution were informed of the arrange- ment.'*'* Nor does the transfer of the judgment by the judg- ment creditor, without notice to the debtor, afford any ground for restraining the collection of the judgment.^^ § 152. Guardianship. Where money due to a minor child is paid to the mother of the child, and is expended for its necessary support, and a legal guardian is afterward appointed who brings suit against the person who made such payment, and obtains judgment, he may be restrained from collecting such judgment until the taking of an account as to the amount due from the ward's estate to the mother for such expend- itures.*^ And where, under the laws of the state, a person is adjudicated an habitual drunkard, and a guardian is ap- pointed of his person and estate, and judgment is afterwards •«'f .Jaedicke v. Patrie 15 Kan., '»■''' Walker v. Villavaso, 26 La. 287. An., 42. 1* Boyce v. Woods, 37 Tex., 245. '« Southwestern R. Co. v. Chap- man, 46 Ga., 557. CHAP. III.] AGAINST JUDGMENTS. 163 obtained against him upon a cause of action accruing subse- quent to the appointment of such guardian, the enforcement of such judgment may be enjoined at the suit of the guar- dian.*'^ § 153. Joinder of parties. As regards the joinder of par- ties to an action for an injunction, it is held that where one of several co-defendants in a joint judgment institutes pro- ceedings in equity for the purpose of having the judgment en- joined, the other defendants should be made parties to the cause, or sufficient reason for their omission should be shown. And an omission in this respect affords good ground for de- murrer to the bill.'*^ But one of two joint obligors in a prom- issory note has been allowed an injunction to restrain the enforcement of a judgment recovered against him alone in a suit brought against the two.^^ § 154. Second execution pending appeal from injunction may be enjoined. When an appeal is taken from an order dissolving an injunction against an execution, and the appeal, under the rules and practice of the court, operates to restore the injunction, but another execution is issued upon the same judgment pending the appeal, it is competent for the court below to entertain another bill to enjoin the last execution. And this is so, although the suing out of the last execution was clearly a contempt of court, and punishable by process for contempt.^^ § 155. Injunction as between holder and indorser of note. Where the holder of a promissory note, pending an appeal by one of the makers from a judgment recovered upon the note, obtains judgment against the indorser and then dis- misses the appeal suit, whereby the indorser loses the benefit of the security upon the appeal to which he would be entitled upon payment of the judgment, sufficient ground is presented <7 Devin v. Scott, 34 Ind., 67. so Balkum v. Harper's Adm'r. 48 Gates V. Lane, 44 Cal., 392. 50 Ala., 372. 49 Anstell V. McLarin, 51 Ga., 467. 164 INJUNCTIONS. [chap. III. for granting an injunction until the hearing, the answer of defendant only denying the allegations of the bill upon infor- mation. ^^ § 156. Execution against defaulting tax collector not en- joined. A court of equity will not interfere to prevent the collection of an execution against a defaulting tax collector and his sureties, since if the parties aggrieved are entitled to any judicial interference in such a case, their remedy at law is as ample and complete as they could have in equity.''- § 157. Judgments in criminal proceedings not enjoined. In accordance with the well established doctrine of equity deny- ing relief by injunction in matters of a criminal nature, or affecting the criminal laws, an injunction will not be allowed to prevent the enforcement of a judgment imposing a fine and costs for violation of a criminal law of the state."'^* Nor will a court of equity enjoin the collection of an execution for costs against an unsuccessful party to a criminal prosecution.^"* § 158. Mechanics' lien proceedings. Courts of equity will sometimes interfere for the protection of a mechanic's lien, if it is apparent through the conduct of creditors who have obtained subsequent liens, that there is danger of impairing the rights of the mechanic or material-man. Thus, where such lien has been secured in accordance with statute for the erec- tion of a building upon leased ground, an injunction will be alloAved to prevent the removal of the building by a judgment creditor whose judgment is subsequent to the lien, the se- curity being insufficient without such building.^^' But a sale under a prior mechanic's lien will not be enjoined at the suit of a junior lien-holder, especially when he had notice of such prior lien.^^ ■'1 Lewis r. Armstrong, 47 Ga., See Burch r. Dooley, 123 Ind., 288. 289. 24 N. E., 110. o;: Gunby v. Bell, 40 Ga., 133. ■•■' Barber r. Reynolds 33 Cal.. B3.Toseph IK Burk, 4t) Ind., 59. 497. 64 Gault r. Wallis, 53 Ga., 675. ■'■ Winn r. Henderson, 63 Ga., 3G5. CJIAP. III.] AGAINST JUDGMENTS. 165 § 159. Injunction to restrain sheriff from paying money, bond required. An injunction restraining a sheriff from pay- ing over money realized upon a levy is regarded as substan- tially tlie same in its effects as one restraining proceedings at law. In order, therefore, to warrant such an injunction, the same statutory bond or deposit should be required before issuing the writ as is required in the case of an injunction against proceedings at law.^'^ J5 160. Sale of good- will of business, violation of agreement concerning. Where a judgment has been obtained for the pur- chase price of the good-will of a trade or business, proceed- ings under the judgment will not be enjoined because of a violation of the vendor's undertaking not to carry on the same business, but the parties will be left to an action at law for damages.^^ § 160 a. Assignee of chose in action. The assignee of a chose in action can not enjoin the enforcement of a judgment based thereon and obtained by the assignor against the debtor who had notice of the assignment, since the recovery of the judgment by the assignor can in no way affect the assignee's rights and constitutes no defense to a suit by the assignee against the debtor. ^""^ § 161. Judgment on dismissal of injunction bill. Where on the dismissal of an injunction bill tiled to restrain proceed- ings under a judgment a decree has been rendered against complainant and his sureties in the injunction bond, a court of equity will not interfere with the proceedings, even though the original judgment, to enjoin the execution of which the bill was filed, has been set aside by the court in which it was rendered.^^ And a bill to enjoin defendant from asking judg- 57 Boker o. Curtis, 2 Edw. Ch., peared that the enforcement of the 111- judgment by the assignor would 58 Shackle i7. Baker, 14 Ves., 468. exhaust the debtor's property, .19 Perry v. Thompson, 108 Ala., quaere. 586, 18 So., 524. As to the right «« Blythe v. Peters, 3 Yerg., 378. to the injunction where it ap- 166 INJUNCTIONS. [chap. III. ment and taking out execution upon an injunction bond after the dissolution, is a proceeding entirely unknown to equity practice, and can not be supported either on principle or au- thority.^* § 162. Injunction dissolved on answer denying bill; new trial at law; newly discovered evidence. With reference to the dissolution of injunctions against judgments at law, the same general rule prevails as in other cases, and the injunc- tion will, in general, be dissolved on filing an answer deny- ing the equity of the bill.^^ j>^^ where an injunction has been improperly granted against proceedings under a judg- ment and a new trial has been allowed, the writ may be dis- solved without awaiting a verdict in the second trial at law.^^ Where, however, it appears that since the judgment was en- joined facts have arisen which would make the issuing of a new injunction necessary in case of the dissolution of the first, it will not be dissolved, even though improvidently issued in the first instance.^* § 163. Damages upon dissolution. In general upon a dis- solution damages will be allowed only as to so much of the judgment as remains due and the collection of which was delayed by the injunction.^^ But where the whole of a judg- ment has been enjoined for a sum claimed to be due the judg- ment debtor from the creditor, bearing an insignificant pro- portion to the amount of the judgment, the injunction will be dissolved with heavy damages.^^ § 164. Effect of dissolution ; when decree for amount of judgment erroneous. The effect of dissolving an injunction against proceedings under a judgment at law is to remove all 61 McReynolds v. Harshaw, 2 o* Exnicios v. Weiss, 3 Mart. N. Ired. Eq., 195. S., 480. 02 Parkinson v. Trousdale, 3 «•"' Southerland v. Crawford, 2 J. Scam., 367; Hayzlett v. McMillan, J. Marsh., 370. 11 West Va., 464; Rice v. Tobias, '•« Barrow v. Robichaux, 15 La. 83 Ala., 348, 3 So., 670. An., 70. ' 63 Vass r. Magee, 1 Hen. & M., 2. CHAP. III.] AGAINST JUDGMENTS. 167 barriers preventing the enforcement of the judgment. Execu- tion may therefore issue immediately upon the dissolution, and it is not necessary to obtain leave of the court for that purpose.^''' But it is held that it is erroneous for a court of equity upon dissolving an injunction against a judgment at law, to enter a decree for the amount of the judgment.^^ So where a bill to enjoin a judgment is dismissed upon the ground that the complainant has an adequate remedy at law against the judgment, it is erroneous to enter a decree for the amount of the judgment, since this is, in effect, to deprive him of the remedy, the existence of which is the reason for refusing equit- able relief.^^ 67 Young V. Davis, 1 Monr., 152. made of the proceeding enjoined, G8 Duncan v. Morrison, Breese see Raymond v. Conger, 51 Tex., (III.), 113; Hubbard v. Hobson, 536. lb., 147. As to the proper prac- gd Railway Co. v. Ryan, 31 West tice in disposing of an injunction Va., 364, 6 S. E., 924, 13 Am. St. against a judgment at law in Tex- Rep., 865; Howell v. Thomason, 34 as, and as to the disposition to be West Va., 794, 12 S. E., 1088. 168 INJUNCTIONS, [chap. III. 11. Defense at Law. § 165 Judgment not enjoined where defense could have been made at law. 166. Illustration of the rule; judgment against conscience not nec- essarily enjoined. 167. The rule further illustrated; absence of witnesses. 168. Failure of proof upon trial insufficient. 169. Failure to defend; threats of bodily harm; instructing counsel to defend. 170. Usury; maintenance; infancy; payment; public business; false testimony. 171. Action for tort; bill should show why defense not made at law. 172. The general rule applied to decrees in equity. 173. Judgment not enjoined when remedy by appeal available; rule not applicable where no appeal exists. 174. Exception to rule when defendant not served with process. 175. Execution not enjoined when relief available by application to same court. 176. Sale under execution not enjoined because of conflict among creditors. 177. Two executions on same judgment; premature execution; ex- ecution without judgment. 178. Negligence in defending at law a bar to injunction. 179. Judgment not enjoined upon grounds which were urged as a defense at law. 180. The rule further illustrated. 181. Neglect of party or counsel; discharge in bankruptcy. 182. Further applications of the rule. 183. Exceptions to the rule. 184. Exception when equities can not be asserted at law. 185. Effect of insanity or derangement. 186. Prior jurisdiction of equity. 187. Assignee of note. 188. Court itself will not take notice of failure to defend at law. 189. Sickness of defendant; coverture. S165. Judgment not enjoined where defense coiild have been made at law. A f^^enoral rule nnderlyinj? the entire juris- diction of oquity to restrain proceedings at law is, that where the person affjrrieved has had an opportunity of interposing CHAP. III.] AGAINST J UDG.MRN^TS. 169 his defense at law and has had his day in court, but has failed through carelessness or inadvertence to avail himself of the opportunity of interposing such defense at law, he can not afterward make it the ground for relief in equity, and is barred from enjoining proceedings under the judgment. It is not the policy of the law to permit persons to slumber upon their rights when they have an opportunity to assert them in a court of law and afterward to permit their assertion in a court of equity. In the absence, therefore, of any sugges- tion of fraud, accident, mistake or surprise, and when no good reason is shown why the defense was not made at law, the injunction will not be allowed where it is not obviously against conscience to enforce the judgment.^ T- Marine Insurance Co. v. vis v. Bayliss, 51 Iowa, 435; Hodgson, 7 Cranch, 332; Hen- Abrams v. Camp, 3 Scam., 290; drickson i\ Hinckley, 17 How., Lucas v. Spencer, 27 111., 15; Albro 443; Emerson <7. Udall, 13 Vt., 477; v. Dayton, 28 111., 325; Shricker Pettes V. Bank of Whitehall, 17 v. Field, 9 Iowa, 366; Wilsey v. Vt., 435; Clute v. Potter, 37 Barb., Maynard, 21 Iowa, 107; Kersey v. 199; Windwart v. Allen, 13 Md., Rash, 3 Del. Ch., 321; Weems v. 196; Bateman v. Willoe, 1 Sch. & Weems, 73 Ala. 462; Hines v. Lef., 201; Commissioners, etc. v. Beers 76 Ga., 9; Noble v. Butler, Patrick, Sm. & M. Ch., 110; Lafon 25 Kan., 645; Alleman v. Kight, V. Desessart, 1 Mart. N. S., 71; 19 West Va., 201; Ashton ?;. Jones, Mereditk i\ Penning, 1 Hen. & M., 14 Neb., 426; Hanna v. Morrov/, 585; Turpin v. Thomas, 2 Hen. 43 Ark., 107; Proctor v. Pettitt. & M., 139; Stanard v. Rogers, 4 25 Neb., 96; Foshee v. McCreary, Hen. & M., 438; Benton /'. Roberts, 123 Ala., 493, 26 So., 309; Rucker 3 Rob. (La.), 224; Ponder v. Cox, (;. Langford, 138 Cal., 611, 71 Pac, 26 Ga., 485; McCook v. Bernd 1123; Redwine v. McAfee, 101 Ga., Brothers, 79 Ga., 391; Beaird v. 701, 29 S. B., 428; Carney v. Vil- Foreman, Breese, 303; Gott v. lage of Marseilles, 136 HI., 401, 26 Carr, 6 G. & J., 309; Ewing v. N. E., 491, 29 Am. St. Rep., 328; Nickle, 45 Md., 413; Stilwell v. Harding v. Hawkins, 141 111., 572, Carpenter, 59 N. Y., 414, reversing 31 N. E., 307, 33 Am. St. Rep., 347; S. C, 1 Thomp. & C, 615; Menifee Losey v. Neidig, 52 Neb., 167, 71 r. Myers, 33 Tex., 690; Shields v. N. W., 1067; Waldo v. Denton, McClung, 6 West Va., 79; O'Con- 135 Pa. St., 181, 19 Atl., 1078; Bal- nor V. Sheriff, 30 La. An., 441; low v. Wichita County, 74 Tex., Jones V. Cameron, 81 N. C, 154; 339, 12 S. W., 48; Melton v. Lewis, Beaudry r. Felch, 47 Cal., 183; Da- 74 Tex.. 411, 12 S. W., 93; Good- 170 INJUNCTIONS. [chap. III. § 166. Illustration of the rule; judgment against conscience not necessarily enjoined. In illustration of the general rule laid down in the preceding section, that equity will not afford relief where an opportunity has been had of interposing the defense at law, it may be said that even where it is manifest that great hardship has been done the defendant at law by the judgment rendered against him, still if such hardship does not result from any fraud or surprise on the part of plain- tiff, but is merely the result of negligence in making proper man v. Henley, 80 Tex., 499, 16 S. W.. 432; Spokane Coop. M. Co. v. Pearson, 28 Wash., 118, 68 Pac, 165; Tompkins v. Drennen, 6 C. C A., 83, 56 Fed., 694; Edmanson V. Best, 6 C. C. A., 471, 57 Fed., 531. But see, contra, Boyce's Ex'rs v. Grundy, 3 Pet, 210. In Marine Ins. Co. V. Hodgson, 7 Cranch, 332, the law upon this subject is well laid down by Chief Justice Mar- shall, as follows: "Without at- tempting to draw any precise line to which courts of equity will ad- vance, and which they can not pass, in restraining 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 un- mixed with any fault or negli- gence 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 can not be set up in equity which has been fully and fairly tried at law, although it may bo the opinion of that court that the defense ought to have been sus- tained at law. In the case under consideration the plaintiffs ask the aid of this court to relieve them from a judgment, on account of a defense which, if good any- where, was good at law, and which they were not prevented, by the act of the defendants, or by any pure and unmixed accident, from making at law. It will not be said that a court of chancery can not interpose in any such case. Being capable of imposing its own terms on the party to whom it grants relief, there may be cases in which its relief ought to be extended to a person who might have defend- ed, but has omitted to defend him- self at law. Such cases, however, do not frequently occur. The equity of the applicant must be free from doubt. The judgment must be one of which it would be against conscience for the person who has obtained it to avail him- self. The court is of opinion that this is not such a case." Emerson p. Udall, 13 Vt., 477, was a bill in chancery to restrain the enforce- CHAP. III.] AGAINST JUDGMENTS. 171 defense at law, relief against the judgment will be refused.^ Nor will the relief be granted upon the ground that com- plainant was ignorant of his defense to the action at law where, by the exercise of reasonable diligence, he could have learned of its existence.^ Nor will equity enjoin a sale under execution upon the ground that the execution is void when ample remedy may be had by an action of trespass against the officer making the levy.-* And the fact that the enforce- ment of a judgment would be against conscience, will not, of itself, warrant an injunction; however unjust and uncon- scionable the demand may be on which judgment was ob- ment of a judgment founded upon an award of arbitrators. The grounds relied upon were that the original claim was groundless, that the arbitrators exceeded the scope of their authority, and that complainant had not sufficient no- tice of the time and place of hear- ing before the arbitrators. The decision of the chancellor dismiss- ing the bill was affirmed, Redfield, J., saying: "It is now, I appre- hend, well settled, that a court of equity will not examine into the foundation of the judgment of a court of law, upon any ground which either icas tried or might have 'been tried in the court of law. The judgment of a court of law is conclusive upon all the world as to all matters within its cognizance. If a party fail there by not presenting his defense, "When he should have done it, he can have no redress in a court of equity; much less can he expect relief in a court of equity, when he has had a full trial at law upon the very grounds which he now "wishes to urge anew. For a court of equity to grant relief in any such case, would be to sit as a court of errors upon the proceed- ings of the courts of common law, which would be a very invidious, as well as a very unwarrantable assumption. Equity has some- times interfered to grant relief, when a party, by accident or mis- take, without his own default, or by the fraud of the opposite party, has failed of an opportunity to present his defense. So, too, when the ground of defense was exclu- sively of an equitable character, and such as would not avail the party at law. Beyond this, I know of no good ground upon which a court of equity could interfere to enjoin the party from pursuing a judgment at law." 2Tapp V. Rankin, 9 Leigh, 478; Field V. McKinney, 60 Miss., 763. 3 Harding v. Hawkins, 141 111., 572, 31 N. B., 307, 33 Am. St. Rep., 347; Spokane Coop. M. Co. v. Pearson, 28 Wash., 118, 68 Pac, 165. 4 Munis V. Herrera, 1 New Max., 362. 172 INJUNCTIONS. [chap. III. tained, if through neglect or carelessness no defense was in- terposed at law, relief will not be granted in equity.^ So where defendant in the action at law, relying upon the state- ment of the clerk of the court that no suit was pending against him, made no further inquiry and failed to take any steps to defend, he was not allowed to enjoin the judgment.** So equity will not, in the absence of fraud or collusion, enjoin the collection of a judgment against a municipal corporation, at the instance of a taxpayer, upon the ground that the municipality had a good defense to the action in which the judgment was rendered.''' And where the complainant had a good defense at law but failed to set it up by a sufficient plea or answer, the relief should be denied.'* §167. The rule further illustrated; absence of witnesses. Where it plainly appears that the equities ou which complain- ant asks for relief against a judgment might have availed him in a plea of non est factum in the action at law, and no excuse appears for his not so defending at law, the injunc- tion will be refused." Nor is it any ground for relief against the judgment that the pleas interposed by defendant to the action at law were held unsupportable, since the proper remedy is by revising the decision of the court of law, rather than by resorting to equity.^ ^ So the absence of a material witness, upon the trial at law, affords no ground for enjoin- ing the judgment, since the court of law had ample powers •'i Ponder v. Cox, 26 Ga., 485. against a judgment upon a bail '• Hanna v. Morrow, 43 Ark., 107. bond upon the ground that the de- ' Carney v. Village of Marseilles, fendant had not executed the 136 111., 401, 26 N. E., 491, 29 Am. bond, and that, therefore, he had St. Rep., 328. regularly no day in court, and was ■^ Melton V. Lewis, 74 Tex., 411, not bound to take any steps in 12 S. W., 93. the action at law. The case is " Harden r. Garden, 7 Leigh, 1.57; clearly against the weight of au- Mershon v. Bank of the Common- thority, since the plea of non est wealth, 6 .J. .1. Marsh., 438. But factum, would have been a sufR- in Spotswood '". Higgenbotham, G' cient defense to the action. Munf., 313, the relief was granted '" Moore v. Dial, 3 Stew.. 155. CHAP. 111.] AGAINST JUDGMENTS. 173 to give relief by a continuance, or a new trial, and even though it refused so to do, equity will not revise and correct the errors of courts of law." Nor will the fact that defendant in the original action was unable to establish his defense, owing to the unexpected absence of the plaintiff, whom he had not called as a witness, warrant a court of equity in enjoining the judgment in the absence of fraud. ^ - § 168. Failure of proof upon trial insufficient. Failure of proof upon the trial at law will not, in the absence of fraud, accident, mistake, or other adventitious circumstances, war- rant a court of equity in granting relief against the judg- ment. Thus, where complainant asks an injunction against a judgment, alleging in his bill that he is now able to prove the matter of his plea in defense of the action at law, which he was unable to prove upon the trial, but does not suggest fraud, accident, mistake, or other circumstances as the cause of such failure of proof, the injunction will not be allowed.^ ^ So if the failure or omission to prove facts material to the defense was caused by the advice of counsel, equity will not relieve against the judgment.'^ And general allegations of difficulty in procuring vouchers and of unavoidable delay in settling accounts are not sufficient to warrant the interposi- tion of equity.^ ^ § 169. Failure to defend; threats of bodily harm; instruct- ing* counsel to defend. An injunction will not be allowed to restrain the enforcement of a judgment, or to declare it invalid, because of a defect of which the person complaining had knowledge during the pendency of the suit, but of which he failed to avail himself at that time.^^ Nor will the injunc- tion be granted on the ground that the defendant at law had 11 Chapman v. Scott, 1 Cranch C. i^ Wilson v. Bastable, 1 Cranch C, 302. C. C, 394. 12 Wilder v. Lee, 64 N. C, 50. i«Wilsey v. Maynard, 21 Iowa. 13 Norris v. Hume, 2 Leigh, 334. 107. !•» Fentress »■. Robins, N. C Term R., 177. 174 INJUNCTIONS. [chap. III. a good and sufficient defense to the action, but was kept from attendance at court by threats of bodily harm, it not appear- ing that he made any efforts to be defended by counsel.^"^ Nor is it a sufficient excuse for neglecting to make defense at law that the defendant wrote to counsel to interpose a defense, but that his letter arrived too late for this purpose, and where this is the only equity relied upon, a court of chancery will not interpose.i^ §170. Usury; maintenance; infancy; payment; public busi- ness; false testimony. Allegations in the bill of usury in the contract upon which judgment was obtained, will not avail in procuring an injunction, since the usury would have been a good and sufficient defense to the original action before judg- ment obtained.^ ^ So an injunction will not be granted to re- strain proceedings under a verdict upon the ground of main- tenance in the proceedings resulting in the judgment, since the question of maintenance is one properly to be determined by a court of law.-^ Nor will the relief be allowed upon the ground that defendant was a minor, since such defense might have been interposed at law ; and where one has slept upon his legal rights until they are barred by the statute of limi- tations, he is estopped from relief in equitj\-i So judgment on a note will not be restrained on the ground that payment had been made upon the note with which the judgment debtor was not credited, it not appearing that he had made any effort to establish the fact of payment in the action at law.22 And, generally, it may be said that where defendant in the action at law had any defense in bar of the action, which he neglected to interpose in the legal forum, he will not re- ceive the aid of equity in restraining the judgment. ^^ Nor in 17 Duncan v. Gibson, 45 Mo., 352. 20 Elborough v. Ayres, L. R. 10 "^ Stanard v. Rogers, 4 Hen, & Eq., 367. M., 438. 21 Clark i\ Bond, Wright, 282. 1" Lansing v. Eddy, 1 Johns. Ch., 22 Commissioners v. Patrick, Sm. 49. & M. Ch., 110. 2;i Windwart v. Allen, 13 Md., 196. CHAr. in.] AGAINST JUDGMENTS. 175 the application of the rule does it matter whether the judg- ment which is sought to be enjoined was obtained by default or upon a veTdict-^"* And proceedings under a judgment will not be enjoined on the ground that the defendant in the action at law, being engaged in public business, was precluded from attending at the trial. ^^ Nor will the relief be granted because the verdict was found upon the testimony of one wit- ness who had been suborned to swear falsely, nor because the court of final resort had refused a new trial.^^ §171. Action for tort; bill should show why defense not made at law. Equity will not interfere to restrain a judg- ment at law in an action for a trot where the equities relied upon as the foundation of the bill might have been interposed as a defense to the action at law ; and especially will the in- terference be denied when a new trial has been refused at law.-'^ Nor will the relief be granted upon grounds which were urged in defense of the action at law.^^ And where a bill is filed for an injunction in a case where complete re- lief might have been had by defending at law, the bill must clearly show why the defense was not asserted in the legal forum.29 § 172. The general rule applied to decrees in equity. The general rule under consideration as applicable to judgments at law applies equally to decrees in equity. And a final decree in equity will not be enjoined on grounds of equity existing prior to its rendition, and which might have been re- lied upon in the original suit unless the equities are such as to authorize a bill of review.^^ 24 Turpin v. Thomas, 2 Hen. & nied at law, Smith v. Lowry, i M., 139. Johns. Ch., 320. 25 Smith V. Lowry, 1 Johns. Ch., 2s Bachelder v. Bean, 76 Me., 370. 320. 29 Yancy v. Fenwick, 4 Hen. & 26 Id. M., 423. 27 Meredith v. Benning, 1 Hen. ^o Moran v. Woodyard, 8 B. Mon., & M., 585. And see as to the re 537. lief where a new trial has been de- 176 INJUNCTIONS. [chap. 111. § 173. Judgment not enjoined when remedy by appeal avail- able; rule not applicable where no appeal exists. The general doctrine under discussion, denying relief by injunction against the enforcement of a judgment when adequate relief might be had at law, finds frequent illustration in cases where the extraordinary aid of this writ is invoked to restrain proceed- ings under a judgment from which full and complete relief might be had in the usual course of procedure by appeal. And upon this point the rule is well established that courts of equity will not lend their aid by injunction against the en- forcement of judgments when a sufficient remedy exists by appeal or writ of ceriiorari to revise the proceedings at law. A plain, adequate and specific remedy existing by appeal, he who is dissatisfied with a judgment must pursue that remedy, and will be denied relief by injunction. when no sufficient rea- son is shown why the remedy at law is not pursued.^^ Thus, a defendant in a judgment who fails to appeal therefrom, or to join in an appeal taken by plaintiff, thereby acquiescing in 31 Manning v. Hunt, 36 Tex., Cal., 21, 59 Pac, 201; Schilling 118; Galveston, H. & S. A. R. Co. v. Reagan, 19 Mont., 508, 48 Pac, r. Ware, 74 Tex., 47, 11 S. W., 918; 1109; Beck v. Frausham, 21 Mont., Texas-Mexican R. Co. v. Wright, 88 117, 53 Pac, 96; Alexander v. Tex., 346, 31 S. W., 613, 31 L. R. Fransham, 26 Mont, 496, 68 Pac, A., 200; Palmer v. Gardiner, 77 945; Langley v. Ashe, 38 Neb., 53, 111., 143; Village of Dolton v. Del- 56 N. W., 720; Mayer v. Nelson, ton, 201 111., 155, 66 N. E., 323; 54 Neb., 434, 74 N. W., 841; Bow- Savoie v. Thibodaux, 29 La. An., man v. McGregor, 6 Wash., 118, 32 51; Schwab v. City of Madison, 49 Pac, 1059; Bidemiller v. Elder, 32 Ind., 329; De Haven v. Covalt, 83 Wash., 605, 73 Pac, 687; Railway Ind., 344; Parsons v. Pierson, 128 Co. v. Ryan, 31 West Va., 364, 6 S. Ind., 479, 28 N. E., 97; Naughton E., 924, 13 Am. St. Rep., 865; Shay r. Dinkgrave, 25 La. An., 538; v. Nolan, 46 West Va., 299, 33 S. I-'oshee v. McCreary, 123 Ala., 493, E., 225; Edmanson v. Best, 6 C. C. 26 So., 309; Shaul v. Duprey, 48 A., 471, 57 Fed., 531. See, also, Ark., 331, 3 S. W., 366; Wingfield Hopkins v. Medley, 99 111., 509. /;. McLure, 48 Ark., 510, 3 S. W., But see Tobriner v. White, 19 439; Ward /' Derrick, 57 Ark., App. D. C, 163. And in Tennessee 500, 22 S. W., '.il; Fuller v. Towns- a contrary doctrine would seem to ley Co., 58 Ark., 314, 24 S. W., prevail. See Williams v. Pile, 104 fi.SB; Hollenbeak ?'. McCoy, 127 Tenn., 273, 56 S. W.. 833. CUAP. Jll.J AGAIXST JUDCi.MKNT.S. 177 the judgment which is affirmed on the appeal taken by plain- tiff, can not afterward enjoin the enforcement of the judg- ment.^- So an order of seizure and sale of property will not be enjoined because of insufficiency of the evidence upon which the order was based, but the party aggrieved will be left to pursue his remedy by appeal from the order.' In- deed, upon an application for an injunction to restrain the enforcement of a judicial order the court will not entertain any question as to the sufficiency of the evidence to author- ize the order, since the remedy upon that point must be sought by appeal from the action of the court complained of, instead of by injunction.- So equity will not enjoin a judgment in attachment or garnishment upon the ground that no affidavit was filed,^ or that the judgment was rendered for an amount greater than that named in the affidavit,* since such errors may be redressed on appeal. Nor will equity enjoin the en- forcement of a judgment rendered against complainant by a subordinate court, imposing a fine for violation of a city ordinance, upon the ground of insufficiency of the proceed- ings to warrant the judgment, when there is a plain, adequate and sufficient remedy by appeal from the action of the in- ferior court.-'"' So if sufficient relief could have been had by appeal from the judgment, but the party aggrieved has been negligent in prosecuting his appeal and has thereby lost his remedy, he will be denied relief by injunction against the judgment.'' So, too, a judgment debtor who has lost his remedy by appeal by reason of a defect in his own proceed- ings will not be allowed to enjoin the judgment.''^ And where •1- Savoie v. Thibodaux, 29 La. * Gum-Blastic R. Co. v. Mexico An., 51. P. Co., 140 Ind., 158, 39 N. E., 443. 1 Naughton v. Dinkgrave, 25 La. 30 L. R. A., 700. An., 538. ^' Schwab v. City of Madison, 49 - City of Shreveport v. Flournoy, Ind., 329. 26 La. An., 709. « Palmer r. Gardiner, 77 III., 143. ;» Hart V. O'Rourke, 151 Ind., 205. ' Long r. Smith, 39 Tex., 160. 51 N. E., 330. 12 178 INJUNCTIONS. [chap. Ill, the complainant has appealed from a judgment rendered by a justice of the peace, the refusal of the latter to approve the appeal bond is no ground for an injunction against the judgment, since there is an adequate remedy by mandamus against the justice.^ Where, however, there is no provision under the law for an appeal or other proceeding to review a judgment, or where, for any other reason, an appeal is impos- sible, the rule can have no application and relief may be granted if the case is in other respects one of equitable cog- nizance. Thus, where a judgment is for an amount less than that from which an appeal or certiorari will lie, the relief is properly granted if the case is in other respects one calling for the interposition of equity .^ So where a judgment has been rendered in an action against a corporation which is in the hands of a receiver, the latter, not being a party to the action at law, has no remedy by appeal from the judgment and he may therefore resort to equity in the first instance.^ ^ § 174. Exception to rule when defendant not served with process. Notwithstanding the general rule as stated and illus- trated in the preceding section, denying relief by injunction when an adequate remedy exists by appeal from the judgment, an exception to the rule has been recognized where defend- . ant in the judgment has not been served with process in the action in which the judgment was recovered. And such want of service has been regarded as affording sufficient ground for enjoining the judgment, even though the error be one which would avail on appeal or writ of error, since in such case, it is held, defendant is not obliged to appeal instead of resorting to equity.^ ^ 8 Boyd V. Weaver, 134 Ind., 266, i" Rogers i;. Haines, 114 Ala., 50, 33 N. E., 1027. 21 So., 411. 'J Galveston, H. & S. A. R. Co. r. n Robinson v. Reid's Ex'r, 50 Ware, 74 Tex., 47, 11 S. W., 918; Ala., 69. For a full discussion of Gulf, C. & S. F. R. Co. )'. Rawlins, this subject see § 229, post. 80 Tex., 579, 16 S. W., 430. CHAP. III.] AGAINST JUDGMENTS. 179 § 175. Execution not enjoined when relief available by- application to same court. Since courts of law exercise a somewhat summary power over their own process, and may in many cases grant complete relief against irregularities in the enforcement of executions upon their judgments merely upon motion or petition, it not unfrequently happens that applications are made for injunctions against executions at law, when ample relief might be had by application to the court in which the judgment was rendered. And the doctrine is well established^ that an injunction will not be allowed against an execution at law, to restrain its enforcement and satisfaction, when by application to the court in which the judgment was rendered, upon motion or petition, satisfactory relief may be had.^^ Thus, where the ground relied upon in support of a bill for an injunction against a sale under judg- ment consists in certain alleged irregularities and defects in the proceedings of the sheriff, which are exclusively within the cognizance of the court from which the execution issued and in which the proceedings were had, and it is entirely competent for that court to give relief by setting aside the sale upon motion, equity will not entertain jurisdiction by injunction.i^ And if, under the practice of the state, there is ample remedy at law for staying the enforcement of an execution, equity will not enjoin, and a bill for an injunction in such case is demurrable, because of the remedy at law.^* So where relief might have been had by motion to vacate and set aside the judgment itself, its execution will not be 12 Mayo V. Bryte, 47 Cal., 626; Ore., 65, 63 Pac, 824, 84 Am. St. Moulton V. Knapp, 85 Cal., 385, 24 Rep., 750; Ward v. Derrick, 57 Pac, 803; Wilson v. Miller, 30 Md., Ark., 500, 22 S. W., 93; Crocker 82; Gorsuch v. Thomas, 57 Md., v. Allen, 34 S. C, 452, 13 S. E. 334; Chambers v. Penland, 78 N. 650, 27 Am. St. Rep., 831. See also C, 53; Russell v. O'Dowd, 48 Ga., Shaul v. Duprey, 48 Ark., 331, 3 474; Cardinal v. Eau Claire L. S. W., 366; Wingfield v. McLure, Co., 75 Wis., 404, 44 N. W., 761; 48 Ark., 510, 3 S. W., 439. Stein V. Benedict, 83 Wis., 603, 53 is Wilson v. Miller, 30 Md., 82. N. W., 891; Marks v. Stephens, 38 "Russell v. O'Dowd, 48 Ga., 474. 180 INJUNCTIONS. [chap. III. restrained.^ ''^ And where it is sought to enjoin a judgment for want of service of process, of which the complainant eouLd have availed himself by a motion to set it aside, it is incumbent upon him to allege and prove that he had no notice or knowledge of the rendition of the judgment before the expiration of the time in which he could have made such a motion in the court where the judgment was rendered.^ <^ So where the defend- ant has appealed from a judgment rendered against him but the clerk of the court has refused to approve the supersedeas bond, the enforcement of the judgment will not be enjoined, since there is an adequate remedy by application to the court to compel the clerk to do his duty.^"^ And where the defend- ant, having taken an appeal from a judgment, had failed to tile his transcript in the upper court within the proper time, relying upon an agreement with the judgment creditor for a settlement of the judgment, and the latter thereupon procures an affirmance of the judgment upon certificate or short rec- ord and is proceeding to enforce it, relief will be denied since there was an adequate remedy by motion in the reviewing court to set aside the order of affirmance. i'^ But where, after the rendition of a judgment against the defendant, he had an opportunity by application to the court to have the judg- ment set aside but was induced by the fraudulent represen- tations of the plaintiff not to make his application until it was too late, relief against the execution of the judgment is properly granted.^" And an injunction may be granted to restrain the enforcement of an execution when the amount actually due the execution creditor is tendered him and is 1-. Kitzmaii c. Minn. T. Mfg. Co.. Lohmiller, 20 C. C. A., 274. 74 10 N. Dak., 26, 84 N. W., 585; Crist Fed., 23. V. Cosby, 11 Okla., 635, 69 Pac, ""Supreme Lodge /'. Carey, 57 885; Brown v. Chapman, 90 Va., Kan., 655, 47 Pac, 621. 174, 17 S. E., 855; Cowley r. North- i^Roebling v. Stevens Co., 93 ern' Pacific R. Co., 46 Fed.. 325. Ala., 39, 9 So., 369. HI Massachusetts B. L. Assn. r. ^'■> Delaney v. Brown, 72 Vt., 344, 47 Atl., 1067. CHAT. III. J AGAINST .TUD(5MENTS. 181 brought into coiirt for his use, even though relief might be had by motion in the court from which the execution issued, when defendant appears and answers upon the merits, without raising the question of jurisdiction or mode of proceeding. ^^ § 176. Sale under execution not enjoined because of conflict among creditors. Upon principles similar to those above dis- cussed and illustrated, an injunction will not be allowed against a sale of personal property under execution in a con- test between different creditors claiming a right to the prop- erty under execution, but the parties aggrieved will be left to their common law remedies, which are regarded as suffi- cient for such a case.^^ Nor will a sale of personal property^ under executions be enjoined when there are conflicting' claimants asserting their rights under different executions, merely because the bill alleges that the justice of the peace before whom the contest is pending has combined with some of the parties in interest to defeat complainants' right; since a court of equity will not presume that the justice will administer the law improperly, and if he does so administer it his errors should be corrected at law and not in equity.-- §177. Two executions on same judgment; premature execution; execution without judgment. The issuing of two executions upon the same judgment does not authorize the interposition of equity, since the party aggrieved can find sufficient remedy at law. Nor will the fact that an execution has issued prematurely entitle the defendant in execution to have an injunction against it perpetuated, if the judgment creditor would be entitled to another as soon as the first is perpetually enjoined.-^ So where an execution is issued with- out any legal warrant or authority, there being no judgment or order of court upon which it is based, and it is being levied 20 Miller v. Longacre, 26 Ohio -;•■! Elliott r. Elmore, 16 Ohio, 27; St., 291. Dayton /■. Commercial Bank, 6 21 Endres r. Lloyd, 56 Ga., 547. Rob. (La.), 17. 22 Id. 182 INJUNCTIONS. [chap. III. upon personal property, equity will not interfere by injunction, since the person aggrieved may have full relief for the injury sustained by an action for damages.^^ § 178. Neg-lig-ence in defending at law a bar to injunction. It may also be asserted as a general rule that a judgment will not be enjoined because of some defense which was available at law, when it is not shown that the failure to defend at law was attributable to the opposing party, or to something in the nature of accident, and when such failure appears to be the result of want of diligence on the part of him who seeks the relief. Thus, the fact that the consideration for the giving of a promissory note was the purchase of certain real estate, which complainant was induced to buy upon defendant's rep- resentations that he could make title to the land, which repre- sentations were not made good, will not justify an injunction against a judgment upon the note when such defense might have been urged in the suit upon the note.-^ Nor will a court of equity enjoin a judgment at law upon grounds which, by the use of due diligence, might have been used in defense of the action at law, or where the proceedings in equity for an injunction rest upon a defense which is equally available at law.2^ So a sale under a judicial decree will not be enjoined in behalf of one who was a party to the decree, upon a new bill filed by him for that purpose, when he shows no equity but such as was or might have been urged in the original action before the decree therein.-'^ § 179. Judgment not enjoined upon grounds which were urged as a defense at law. As still further illustrating the general doctrine under discussion, a judgment will not be enjoined merely because it is unjust and oppressive, when defendant in the judgment has had a fair opportunity to be 2» Davidson v. Floyd, 15 Fla., -" County Commissioners r. Bry- 6()7. son, 13 Fla., 281. 25 Howell V. Motes, 54 Ala., 1. -^ Brinson r. Wessolowsky, 58 Ga., 293. CIIAr. III.] AGAINST JUDGMEN^TS. 183 heard upon a defense upon which the court of law had com- plete jurisdiction, even though the court of equity may be of opinion that the court of law acted erroneously.-^ The gov- erning principle in such case is that when a question has been once fully considered and decided by a competent tribunal, it can not be opened to review upon the same facts before another tribunal of merely concurrent powers, without pro- ducing an unseemly strife between such courts. And addi- tional reason is found for withholding relief in such case in the fact that courts of equity do not sit in review or in judgment over the errors of courts of law.^^ So, too, the defendant in a judgment recovered in favor of a corporation can not enjoin the enforcement of the judgment upon the ground that the plaintiff was not legally incorporated, when such defense had been interposed in the action, the decision of the court upon that question being res jiulicata.^^ § 180. The rule further illustrated. When it is sought to enjoin a judgment upon the ground of a good defense to a part of the demand, which came to defendant's knowledge too late to be used in defense of the action, he must show that the failure to urge such defense was unmixed with negligence on his own part, and must also tender or bring into court the amount which is admitted to be due.^^ And a judgment will not be enjoined upon the ground of facts which are alleged to have rested exclusively within the knowledge of plaintiff in the action, and which are charged to be necessary to a fair and 28 Holmes r. Steele, 28 N. J. Eq., tract, although the defendant has 173. failed to interpose such defense 20 Holmes r. Steele, 28 N. J. Eq., to the action, the code aflirmative- 173; Commercial Union Assurance ly providing that such failure to Co. V. Scammon, 13 111., 627, 23 N. defend at law shall not prevent re- E., 406. But in West Virginia it lief in equity. Ludington v. Tif- is held, under the code of that fany, 6 West Va., 11. And see state, that a judgment in an action Code of West Virginia, ch. 126, § 6. upon contract may be enjoined by ^o Mahan r. Accommodation the defendant upon the ground of Bank, 26 La. An., 34. want of consideration in the con- 3i Hill v. Harris, 42 Ga., 412. 184 INJUNCTIONS. [chap. III. just decision at law, when defendant has submitted to trial in the action without availing himself of his right by a bill of discovery to obtain the desired facts. ^- So a court of equity will not enjoin a judgment at laA\ on the ground that it was rendered upon an illegal arrest, an action at law being the appropriate remedy for such a grievance.-^^ And especially w^ill the relief be withheld, in such case, when defendant in the action voluntarily appeared and submitted himself to the jurisdiction of the court and confessed judgment.''^ § 181. Neglect of party or counsel; dischaxge in bank- ruptcy. As still further illustrating the general doctrine under discussion, it is to be observed that an injunction will not be allowed against a judgment because of the neglect of a party to the action or of his counsel, when such neglect, if excusable, might, under a statute of the state, be made the foundation of a motion for relief in the original cause.^-'' And a judgment debtor will not be allowed to enjoin the judgment because of his discharge in bankruptcy after incurring the obligation on which the action was brought, when he has neglected to avail himself of his discharge, or to plead it in defense of the action.^^ But M-here the debtor obtains his discharge in bank- ruptcy after judgment rendered against him upon a cause of action accruing before bankruptcy and provable under the act, the judgment may be enjoined upon his application.-''^ § 182. Further applications of the rule. Where by statute a sheriff has ample remedy at law in case of proceedings brought against him for selling property on execution to which there are conflicting rights, and where he is not obliged to proceed witlioni being indemnified for such damages as he may sus- ■■■■■^ Dilly r. Barnard, 8 G. & J., •'* Id. 170. See also Lansing v. Eddy, 1 ■•'••Borland r. Thornton, 12 Cal., Johns. Ch., 49. 440. ■■!'i Baldwin v. Murphy, 82 111., :•'■ .Tones v. Coker, 53 Miss., 195; 485. Miller r. Clements, 54 Tex., 351. :" Earley r. Bledsoe, 59 Tex., 488. CHAr. 111. 1 AGAINST JUDGMENTS. 185 tain, he will not be permitted to enjoin proceedings at law brought against him for having sold property the title to which is in dispute.^*^ It is to be observed, however, that a statute providing for the taking of an indemnifying bond by the officer making a levy does not preclude a third person claiming to be the owner of the property levied upon from his right to an injunction where the remedy at law is incompleted'^ And a distinction is drawn between the case of one claiming as an incumbrancer and as owner of the property; and while the relief will not be granted in favor of an incumbrancer, the real owner of the property is entitled to protection.'*'^ § 183. Exceptions to the rule. To the general rule as laid down in the preceding sections, that equity will not enjoin a judgment at law where the defense might have been urged upon the trial, there are some exceptions resting upon well recognized principles of equity jurisprudence. Most of these exceptions will be found to fall under the heads of fraud, acci- dent, mistake, surprise and ignorance, and will be noticed hereafter in this chapter. It may be said, generally, that where it appears that the courts of law do not afford as safe and con- venient a remedy as courts of equity, or where it is doubtful whether, according to the jurisdiction and practice of the common law courts, the defense is legally available there, or, if available, it is attended with difficulty and embarrass- ment, equity may grant relief against the judgment.^^ So where strong equities exist against the enforcement of a judgment, which, from the nature of the case, could not have been pleaded in defense of the action at law, they may afford ground for restraining the judgment.'*- And the fact that 38 Storrs V. Payne, 4 Hen. & M., Leigh, 85 Mewborn r. Glass, 5 506. Humph., 520; Cornelius v. Mor- 39 Walker v. Hunt, 2 West Va., row, 12 Heisk., 630, affirming S. C. 491. But see Baker v. Rinehard, suh nom. Cornelius v. Thomas, 1 11 West Va., 238. Tenn. Ch., 283. And see Spotswood 40 Walker v. Hunt, 2 West Va., v. Higgenbotham, 6 Munf., 313. 491; Bowyer r. Creigh, 3 Rand., 25. +2 Scott r. Shreeve, 12 Wheat, 41 Crawford v. TTiurmond. 3 605. 186 INJUNCTIONS. [chap. III. the rights in issue are equitable rather than legal in their nature, will afford additional reason for enjoining the pro- ceedings.'*^ § 184. Exceptions when equities can not be asserted at law. It may sometimes happen also that the equities relied upon for an injunction can not be asserted in a court of law, and in such cases a departure from the general rule becomes necessary in order to give complete relief.^^ Thus, where the foundation of a bill to enjoin a judgment is an agreement of such a nature that it could not have been urged in defense of the action at law, equity may properly interfere and enjoin the enforcement of the judgment.-*^ So a sale of complainant's personal property under an execution against another person will warrant the interference of equity, where complainant's title to the property is such as to prevent its being followed in the hands of purchasers, and such that an action of trespass can not be maintained against the officers or the plaintiff's in execution.*^ But where a person, not a party to the proceed- ings at law, asks to enjoin a sale of personal property under an execution on the ground of a prior incumbrance upon the same property, the court will not interfere."*^ § 185. Effect of insanity or derangement. It may also happen that the peculiar circumstances of a particular case will warrant equity in a departure from the general rule denying relief in cases where the defense should have been urged at law. Thus, it has been held sufficient to warrant a perpetual injunction against a judgment in slander, that at the time the defamatory words were uttered, as well as when 43 Crawford v. Thurmond, 3 *■< Hibbard v. Eastman, 47 N. H., Leigh, 85. 507. 44 Hibbard v. Eastman, 47 N. H., 4o Anderson v. Biddle, 10 Mo., 23, 507; Anderson v. Biddle, 10 Mo., 4- Bowyer v. Creigh, 3 Rand., 25. 23; Walker v. Heller, 90 Ind., 198; See also as to incumbrances, Rollins r. Hess, 27 West Va., 570. Walker v. Hunt, 2 West Va., 491. But see, contra, Kerr v. Hill, 27 West Va., 576. CHAP. III.] AGAINST JUDGMENTS. 187 the judgment was obtained, the person uttering such words was insane or in a state of partial mental derangement on the subject to which the words had reference."*^ Such excep- tions, however, resting upon the special circumstances of par- ticular cases, in no way weaken the general rule. § 186. Prior jurisdiction of equity. Another exception to the rule denying relief by injunction where defense might be made at law has been based upon the fact of jurisdiction in equity having first attached. Thus, it has been held that when a bill presents a proper case for enjoining a fraudulent judgment, it is immaterial whether the law would afford relief after the judgment has been enforced by execution, since the jurisdiction of equity having first attached in the bill to enjoin upon the ground of fraud, it can not be ousted by a subsequent proceeding in a court of law."*^ § 187. Assignee of note. As a further exception to the general rule denying relief against a judgment where the defense should have been interposed at law, an injunction has been granted against a judgment in favor of the assignee of a note on the ground of fraud and misrepresentation in the value of the article which was the consideration for the note, the assignee having taken the note with notice.^*^ But a court of equity will not enjoin a judgment in favor of an assignee of a note for valuable consideration, who is ignorant of com- plainant's equities when he takes the note, even though such equities might warrant an injunction against the payee.^i § 188. Court itself will not take notice of failure to defend at law. When the judgment debtor has failed to defend at law and afterward attempts to enjoin the judgment upon grounds constituting a defense either at law or in equity, the court will not of its own motion take notice of the failure to 48 Horner v. Marshall's Adm'x, so King v. Baker, 1 Yerg., 450. 5 Munf., 466. si Donelson v. Young, Meigs, 155. 49 Gainty t?. Russell 40 Conn., 450. 188 INJUNCTIONS. [chap. IFI. defend at law. And if the defendant in the injunetioii suit does not avail himself of such failure, but answers over on the merits, equity may entertain jurisdiction and enjoin the judgment.^2 jf^ however, the defense is purely legal, and in its nature un^t for equity jurisdiction, the defendant in the injunction suit may insist upon the want of jurisdiction at the hearing, even though he may not have demurred, but pleaded to the merits instead.^^ §189. Sickness of defendant; coverture. Sickness of th(^ defendant at law at the time process is served upon him is held sufficient to warrant an injunction against the judgment, where the sickness is such as to unfit the defendant for the transaction of business, even though no defense was interposed to the action.^* So if defendant in the suit at law was not sui juris, as in the case of a feme povert, the judgment may be restrained.^^ And a judgment by default against a feme covert being a nullity, its enforcement against her separate estate will be enjoined.^® So the execution of a judgment rendered against a feme covert by confession upon a judgment note which, by reason of her disability, she had no power to execute, will be restrained.^'^ And the same strictness of proof is not required to establish an excuse for not making the defense at law as would be requisite to establish the defense itself upon trial.^^ •"•2 Galbraith v. Martin, 5 Humph., ss Griffith r. Clarke, 18 Md., 457. 50. 06 Id. C3 Rice V. Rail Road Bank, 7 ■■' Hoffman r. Shupp, 80 Md., Humph., 39. 611, 31 Atl., 505. ^•* Rice V. Rail Road Bank, 7 ''S Rice r. Rail Road Bank, 7 Humph., 39. See also Horn v. Humph., 39. Queen. 4 Neb., 108. CHAP. 111. J AGAINST J L DGMENTS. 189 III. Judgments Obtained TirRorGir Fraud. § 190. Fi^udulent judgment may be enjoined. 190a. Definition of fraud. 191. The rule illustrated. 192. Fraudulent alteration of judgment record. 193. Cases where fraud could not be urged at law. 194. Person aggrieved must show due diligence. 195. Fraud construed; magistrate not necessary party. 196. Judgment in violation of agreement enjoined. 197. Forged assignment of bond. 198. Statutory judgment; collusion; prior judgment discharged. 199. Fraudulent representations by plaintiff ground for enjoining judgment. 200. The rule illustrated. 201. Cases where relief refused; special agreements; surety. 202. Fraudulent representations by plaintiff's attorney ground tor enjoining judgment; must allege attorney's authority. 203. Fraud may consist in mere silence, or suppressio veri. 204. Satisfactory proof of fraud required. , 205. Plaintiff must come into court with clean hands. 206. False representations by vendor of patented medicines. 207. Effect of final Injunction. 208. Enforcement of vacated judgment enjoined. 208a. Injunction against judgment for alimony. § 190. Fraudulent judgment may be enjoined. The most frequent exceptions to the rule that an injunction will not be allowed against proceedings under a judgment where the defense should have been made at law, are cases where the judgment was obtained through such fraudulent conduct or such deceitful representations as prevented the defendant from asserting his rights in the legal tribunal. Indeed, the exceptions thus recognized are sufficient to constitute a rule of themselves, and it may be said, generally, that where through fraud upon the part of plaintiff or his representatives, defendant is prevented from making his defense at law, equity will relieve against the judgment.^ The rule, however, as 1 Carrington v. Holabird, 17 Conn., 544; Wierich r. De Zoya, Conn., 530; Pearce v. Olney, 20 2 Gilm., 385; Burpee v. Smith, 190 INJUNCTIONS. [chap. III. thus stated, is to be taken with the qualification that the relief will not be granted because of fraud alone, but only where the person aggrieved shows a good reason why the defense was not made at law,- and when he shows a meritorious de- fense to the action which he seeks to enjoin.^ This being shown, and it appearing that defendant was prevented from the assertion of his rights by fraud, unmixed with negligence of his own, a court of equity will afford relief, either by open- ing the case and allowing another trial, or by awarding a per- petual injunction.'* And since a judgment is a mere chose in action, and a purchaser or assignee takes it subject to all equities existing between the original parties, its enforcement may be enjoined, if obtained through fraud, although it has been assigned to a third person ignorant of such fraud.^ § 190 a. Definition of fraud. It is important to bear in mind that the fraud for which equity will relieve against the enforcement of judgments is that practiced in the procurement of the judgment and not that which taints or vitiates the cause of action upon which the judgment was founded. In the latter case, the fraud constitutes a valid defense to the action in which the judgment was rendered and relief will accordingly be denied since there is a complete and adequate remedy at law.® Walk. (Mich.), 327; Kent v. Ric- court an instrument of injustice in ards, 3 Md. Ch., 392; Green v. all cases where such advantage has Haskell, 5 R. I., 447; Hentig v. been gained by fraud, accident or Sweet, 27 Kan., 172; Kelly v. mistake of the opposite party." Wiard, 49 Conn., 443; Taylor v. 2 Lacey i;. Administrators, 1 Ohio, Nashville & C. R. Co., 86 Tenn., 256. 228, 6 S. W., 393; Kelleyr. Kriess, 3 Overton v. Blum, 50 Tex., 417. 68 Cal., 210, 9 Pac, 129. And in And see, ante, § 126. Pearce v. Olney, 20 Conn., 544, the ■* Wierich v. De Zoya, 2 Gilm., court say: "Indeed this falls di- 385. rectly within and is but an illus- ■■ Taylor v. Nashville & C. R. Co., tration of the general rule that 86 Tenn., 228, 6 S. W., 393. equity will interfere to restrain the c payne v. O'Shea, 84 Mo., 129; use of an advantage gained in a Murphy w. De France, 101 Mo., 151, court of ordinary jurisdiction, 13 S. W., 756. which must necessarily make that CHAP, in.] AGAINST JUDGMENTS. 191 § 191. The rule illustrated. Even though a judgment has been entered by consent of the parties and as the result of a compromise between them, it may still be enjoined upon grounds of fraud, accident, or mistake.''' And where defendant had a good and meritorious defense upon the merits, but was prevented from asserting it by receiving assurances in writing from plaintiff's attorney that nothing further would be done in the suit until he was notified, the injunction was allowed.^ So where defendant, through fraud and improper management of the adverse party and with no fault of his own, was pre- vented from pleading a discharge in bankruptcy against the action at law, the relief was granted.'^ And where, relying upon the written statements of a justice, before whom the suits were brought, that they would be dismissed, no defense was interposed, and the justice afterward rendered judgments without notice to defendants, an injunction was allowed, it being shown that no cause of action existed in favor of plain- tiff in the judgments.^ ^ Nor is the power of a court of chan- cery to grant the relief taken away by a statute conferring ^ upon the court of law in which the judgment was obtained authority to grant a new trial in such a case.^i And when a claim against an estate is allowed upon false representa- tions to the court and without notice to the administrator, who does not learn of its allowance until after the time for an appeal has expired, he is entitled to relief by injunction.^^ go 7 Hahn v. Hart, 12 B. Mon., 426. charge was granted, the court hold- 8 Pearce v. Olney, 20 Conn., 544. ing that while the legal liability of 9 Carrington v. Holabird, 17 the insolvent to pay his debts had Conn., 530; Starr v. Heckart, 32 ceased, the moral obligation re- Md., 267. But see, contra, Katz mained as strong as before and r. Moore, 13 Md., 566, where it is was sufficient to sustain the judg- held that a judgment at law will ment. not be enjoined because of the dis- lo Wagner v. Shank, 59 Md., 313. charge of the judgment debtor n Carrington v. Holabird, 17 under the insolvent laws of a state Conn., 530. previous to the rendering of such 12 Dundas v. Chrisman, 25 Neb., judgment, even though the cause 495, 41 N. W., 449. of action accrued before the dis- 192 INJUNCTIONS. [chap. III. where the plaintiff has procured a judgment by means of the introduction in evidence of a forged document, of which com- plainant had no knowledge at the time of the trial, relief against the judgment will be granted.^ -"^ § 192. Fraudulent alteration of judgment record. The fact that after judgment and execution the records of the court were fraudulently altered and the amount of the judgment increased, without the knowledge or consent of the judgment debtor, is sufficient to warrant a court of equity in restraining the enforcement of the judgment. And in such case, although the execution might be staid by motion in the court rendering the judgment, yet since the relief sought goes to the judg- ment itself, equity may properly entertain jurisdiction.^^ So a judgment has been enjoined because of fraud in obtaining a bill of sale upon which the action was founded.^ •'^ § 193. Cases where fraud could not be urged at law. It not infrequently happens from the peculiar nature and circum- stances of the case that the fraud on which a judgment is predicated can not be set up or urged in a legal tribunal. In such cases a court of chancery will afford relief by enjoining proceedings under the judgment.^" Thus, where a bond on which judgment was obtained was procured by fraudulent and oppressive conduct, and it is by no means clear that a court of law could give the relief asked for, the judgment may be enjoined in ecpiity.^" So an injunction has been granted against a judgment on a note given for the purchase price of a horse, on the ground of deceitful and fraudulent representa- tions as to his soundness, it appearing that ho was unsound.^^ j\nd a judgment for the purchase money of personal property may be enjoined on the ground that, contrary to the repre- ••■' Marshall v. Holmes, 141 U. S., "i Collier v. Easton, 2 Mo., 117 589, 12 Sup. Ct. Rep.,- 62. (2(1 ed.) ; West v. Wayne, 3 Mo., 13 n Babcock r. McCamant, 53 111., (2d ed.). 214; Hardy r. Broaddus, 35 Tex., '^West r. Wayne, 3 Mo., 13 (2d 668. ed.). in Crawford r. Crawford, 4 De- "< Waters r. Mattingly, 1 Bibb, saus Rf|., 176. 244. From the case as reported it CHAP. III.] AGAINST JUDGMENTS. ' 193 sentations of the vendor, the property was incumbered witk liens to an amount beyond its value. ^'* § 194. Person aggrieved must show due diligence. He who seeks the aid of equity to prevent the enforcement of a judg- ment upon the ground of fraud must show due diligence in. the assertion of his rights. And where defendant has allowed a suit to proceed to judgment without any attempt on his part to obtain proof, an injunction will not be allowed on the ground of fraud in the original transactions on which the suit was founded.-*^ So where the fraud relied upon might have been used as a defense to the action at law, but it does not appear whether it was so used, or whether defendant neg- lected to avail himself of it, the judgment will not be re- strained.^i § 195. Fraud construed ; magistrate not necessary party. Where the equitable jurisdiction of the court is conferred entirely by statute and is limited to cases of fraud, accident, mistake or account, fraud is construed to mean actual fraud in its strictest sense ; and this not appearing in the bill the injunc- tion will be refused.-- And it is to be observed that the juris- diction of equity in restraining proceedings under a judg- ment is not exercised by assuming control over the court in which the proceedings were had, but by controlling the parties to the action. Hence a magistrate before whom a judgment was rendered should not be made a party to the injunction suit.2S does not appear that any defense -'i Parker v. Morton, 5 Blackf. was attempted in the suit on the 1; Norwegian Plow Co. v. Bollman, note, but that it was first inter- 47 Neb., 186, 66 N. W., 292, 31 L. posed in the bill for the injunction. R. a., 747. 19 Poe V. Decker, 5 Ind., 150. But 21! Gilder r. Merwin, 6 Whart. it does not appear from the report 522; Riley r. Ellmaker, 6 Whart., whether the defendant was ap- 545. prised of the facts in time to de- I'-i Burpee v. Smith, Walk, fend at law. (Mich.), 327. 20 March v. Edgerton, 1 Chand., 198. 13 194 INJUNCTIONS. [chap. III. § 196. Judgment in violation of agreement enjoined. In further illustration of the principles already discussed it is held that a judgment obtained in violation of an express agree- ment and an entry on the docket of the court may be enjoined, even though the judgment creditor does not threaten its en- forcement; since his refusal to release the judgment is equiva- lent to a threat of its enforcement and the injunction is neces- sary for the protection of the judgment debtor.-^ So where an action before a justice of the peace has been continued by stipulation to be taken up by the consent of the parties, a judgment rendered by default contrary to this agreement will be enjoined, complainant showing a good defense to the action and being guilty of no fault or negligence of his own.^^ And where a judgment has been rendered by default under a general order of the court contrary to an agreement between the parties that the defendant might enter his appearance at any time and that no action would be taken against him because of his delay in this regard, the enforcement of the judgment will be restrained.-^ And the relief is not limited to cases where the judgment has thus been procured contrary to the agreement of the parties but it is extended to cases M^here it is being enforced contrary to the plaintiff's under- taking. Thus, where, in direct violation of a stipulation be- tween the parties, the judgment creditor has failed to credit his debtor with a payment upon the judgment, and is pro- ceeding to collect the whole, an injunction will be granted.^''' So where it has been agreed that the judgment should be released in full upon payment of one-half of its face, its enforce- ment in violation of this stipulation will be restrained.^^ But the execution of a judgment entered in violation of the agree- 24 Chambers v. Robbins, 28 Conn., 443, 65 N. E., 843, 94 Am. St. Rep., 552. 662. 25 Gulf, C. & S. F. R. Co. V. King, 2- Newman v. Meek, Sm. & M. 80 Tex., 681, 16 S. W., 641. Ch., 331. 2«i Brooks V. Twitchell, 182 Mass., -"* Johnson v. Huber, 106 Wis., 28?, 82 N. W., 137. CHAP. III.] AGAINST JUDGMENTS. 195 ment of the parties will not be enjoined where the defendant had an adequate remedy by motion to set it aside, of which he has failed to avail himself.^^ § 197. Forged assignment of bond. So equity may relieve against a judgment recovered against the obligor in a bond by one claiming under a forged assignment, even though the obligor had notice of the fact; since the action being brought in the name of the obligee to the use of the pretended assignee, the obligor is precluded from any inquiry into the genuineness of the assignment in the trial at law, and payment under such circumstances would not protect him against the claim of the rightful owner of the bond.^^ §198. Statutory judgment; collusion; prior judgment dis- charged. Equity, being competent to relieve against an ordi- nary judgment in a court of law, may also relieve against an execution issued under a statutory judgment springing into being upon the forfeiture of a forthcoming bond, where fraud has been used in obtaining the forfeiture of the bond.^^ So an injunction will be allowed against a sale upon execution under a judgment obtained by collusion, where the property levied upon was purchased with complainant's funds, the judgment having been obtained and the levy procured for the purpose of defeating complainant's claim to the prop- erty.22 ^^^j where a judgment has been obtained by default upon a prior judgment, of which the judgment creditor has given a discharge which would have been effectual if pleaded at law, its execution may be restrained.^^ § 199. Fraudulent representations by plaintiff ground for enjoining judgment. Fraudulent conduct and deceitful repre- 29 Kitzman v. Minn. T. Mfg. Co., and it does not appear whether de- 10 N. Dak., 26, 84 N. W., 585. defendant had any opportunity of 30 Griffith V. Reynolds, 4 Grat., pleading the discharge at law, ex- 46. cept in the statement of the court 31 Nunn V. Matlock, 17 Ark., 512. that the judgment was obtained 32 Greene v. Haskell, 5 R. I., 447. without right and without the 33 Devoll V. Scales, 49 Maine, 320. knowledge of defendant. The case is imperfectly reported. 196 INJUNCTIONS, [chap. III. sentations upon the part of plaintiff in an action at law, by means of which defendant, having a meritorious defense, is prevented from interposing it, afford frequent ground for application for the aid of an injunction to restrain the enforce- ment of judgments thus fraudulently obtained. The general rule upon this subject is well defined and clearly established, both upon principle and authority. And whenever, by rea- son of plaintiff's fraudulent conduct or representations to defendant concerning the nature and objects of the action, or the purpose of the judgment, or the prosecution of the cause, defendant in the action, having a good defense upon the merits, is lulled into security so that he fails to inter- pose his defense, he is entitled to the aid of equity to pre- vent the plaintiff from reaping the benefits of a judgment thus fraudulently obtained.^^ Thus, where judgment has been taken against a defendant by default, after an agree- ment between the parties to submit the controversy to arbitration, the judgment may be enjoined upon a bill show- ing a good and valid defense to the action. The relief is allowed in such case upon the ground that when by mistake or fraud one has gained an unfair advantage in proceedings at law, which will operate to make the court of law an in- strument of injustice, equity will interfere to prevent him from reaping the benefit of the advantage thus improperly gained.-^-'"' So where defendant has a good defense to a part ■of the cause of action, but is misled by an agreement with plaintiff's not to make such defense, it is proper to enjoin the collection of the judgment until it can be determined ^* Webster r. Skipwith, 26 Miss.. Delaney r. Brown, 72 Vt., 344, 47 341; Poindexter r. Waddy, 6 Munf.. At.1., 1067. See also Hemphill v. 418; Baker v. Redd, 44 Iowa, 179; Ruckersville Bank, 3 Ga., 435; Bigham r. Gorham. 52 Ga., 329; Pearce r. Olney, 20 Conn., 544; Bresnehan v. Price, 57 Mo., 422; Kelley r. Kriess. 68 Cal., 210, 9 Hinckley v. Miles, 15 Hun. 170: Pac. 129. Markham v. Needham, 57 Ga., 43; •■■ Bresnehan r. Price, 57 Mo.. 422. CHAP. in. J AGAINST JUDG.MEMTS. 197 upon final hearing whether he is entitled to be heard upon his defense.'^*"' § 200. The rule illustrated. Illustrations of the rule as above stated are numerous, but the same general principle of preventing one who *5ias gained a legal advantage by fraud from availing himself of its benefits will be found to underlie them all. Thus, where plaintiff in the action induces defend- ants to withdraw their defense and to permit judgment to go against them, upon his assurance and undertaking that he will stay proceedings after judgment until a given time, and will then carry out a settlement agreed upon between the parties upon the basis of the plea or defense which is with- drawn, and plaintiff afterwards attempts to enforce the judgment in violation of his agreement, a proper case is pre- sented for relief by injunction.^''^ So where the maker of a promissory note has paid it in full, and holds a receipt to that effect from the indorsee, but consents to judgment against him in favor of the latter, upon his representations that he will not enforce the judgment against the maker, and that he only desires to enforce it against the indorser, the maker of the note may enjoin the collection of the judgment upon the ground of fraud.^^ And when defendant in a suit upon a promissory note might have successfully pleaded non est factum to the action, but was prevented from so doing by the representations of plaintiff, an injunction may be allowed to restrain the enforcement of the judg- ment.^'' So when the bill alleges that the note upon which judgment was rendered had been settled by agreement with plaintiff in the action, and that the suit was to be considered at an end, but that plaintiff went on without the knowledge ■'•'• Dunnahoo v. Holland, 51 Ga.. '^ Baker v. Redd, 44 Iowa, 179. 147. ■!!» Poindexter v. Waddy, 6 Munf., •'" Markham v. Needhara, 57 Ga., 418. 43. See also Hemphill i:. Ruck- ersville Bank, 3 Ga., 435. 198 INJUNCTIONS. [chap. III. or consent of defendant in the action and took judgment against him, and these allegations are not specifically or fully denied upon the motion for the injunction, it is not error to grant an injunction until the final hearing.-**^ And a judg- ment which is obtained by fraudulent representations upon the part of plaintifi: to defendant, both as to the purpose of the action and the amount sought to be recovered, may properly be enjoined.^i And it is to be observed that the application of the rule is the same whether the fraudulent conduct or deceitful representation of the plaintiff were used by him to obtain the judgment in the first instance or for the purpose of retaining the benefits of the judgment after its rendition by fraudulently depriving the defendant of his day in court in which to have the judgment vacated or to obtain a new trial.-i2 §201, Cases where relief refused; special agreements; surety. Where, however, by agreement between the parties to a cause it is stipulated that the judgment shall be paid in a given way and within a given time, and before the expiration of the time specified plaintiff issues execution upon the judg- ment, the judgment debtor can not enjoin proceedings under the execution until he has first offered to pay the judgment in accordance with the terms of the agreement.'*^ And an agreement made between the judgment creditor and his debtor, without consideration, that if the debtor will pay one-half the debt when due, the creditor will make the other half out of the property of a co-debtor, and will not look to the judgment debtor, is not such an estoppel against the creditor as to warrant an injunction to prevent him from enforcing a judgment for the full amount.^^ Nor will an injunction lie to restrain a judgment against complainant ■io Bigham v. Gorham, .52 Ga., 329. *^ Town of Anamosa r. Wurz- 41 Hinckley v. Miles, 15 Hun, 170. bacher, 37 Iowa, 25. 42 Delaney v. grown, 72 Vt., 344, ^ Smith v. Tyler, 51 Ind., 512. 4? Atl.. 1067; Thompson v. Laugh- lln, 91 Cal., 313, 27 Pac, 752. CHAP. III.] AGAINST JUDGMENTS. 199 upon a note executed by him as surety, the only equity in support of the bill being that fraudulent representations were made by the principal to obtain the signature of the surety, no fraud or misrepresentation being charged upon the payee.*^ § 202. Fraudulent representations by plaintiff's attorney ground for enjoining judgment; must allege attorney's authority. It is also to be noticed that the cases in which the relief is granted upon the ground of fraud are not lim- ited to those where the fraudulent representations are those of plaintiff in person, but that the fraudulent conduct of plaintiff's attorney in the cause may afford sufficient ground for enjoining a judgment which is obtained by means of such fraud.**^ And where plaintiff's attorney has taken judg- ment in violation of his express agreement with defendant, the agreement being within the scope of the attorney's authority, the enforcement of the judgment may be re- strained because of such fraud on the part of the attorney.'*'^ So when defendant in the judgment shows a good equitable defense thereto, which he was prevented from making by relying upon the representations of the solicitor for plain- tiff in the action, proceedings under the judgment may prop- erly be enjoined.^^ So where defendant, on being served with process, applied to his regular attorney to defend the cause, and stated to him his grounds of defense, and was informed by him that he appeared as attorney for plaintiff, but that he was satisfied with the justice of his defense, and would take no judgment against him, and defendant, relying upon such assurances, made no defense to the action and was not aware of the judgment until after it was ren- 45 Griffith V. Reynolds, 4 Grat., Thompson v. Laughlin, 91 Cal., 313, 46. 27 Pac, 752. 46 Kent V. Ricards, 3 Md. Ch., ^i Kent v. Ricards, 3 Md. Ch., 392; Holland v. Trotter, 22 Grat., 392; Hentig v. Sweet, 27 Kan., 172. 136; O'Neill r. Browne, 9 Ir. Bq., 48 O'Neill v. Browne, 9 Ir. Eq., 131; Hentig r. Sweet, 27 Kan., 172; 131. 200 INJl XCTIO.VS. [CIIAP. III. dered, the judgment was enjoined."*^ But to warrant relief in all such cases, where a judgment has been taken contrary to an agreement made by the plaintiff's attorney, it is incunj- bent upon the complainant to make affirmative allegations that the attorney had authority to bind the plaintiff by such agree- ment ; and in the absence of positive allegations to this effect, the bill is fatally defective and the relief will be denied.'^*' § 203. Fraud may consist in mere silence, or suppressio veri. It is important, also, to be borne in mind in considering the nature and grounds of equitable relief against fraudu- lent judgments, that the fraud which is made the foundation for the relief is not necessarily of an active or affirmative nature, but may consist in mere silence or suppression where good faith and fair dealing would require a disclosure of facts which are concealed. For example, when, in proceed- ings to determine the title to real estate, a mistake in the description of the premises results in depriving defendant of property without an opportunity of maintaining his title, and he does not discover the mistake until too late to revievv^ the proceedings at law, but plaintiff' being aware of the mis- take remains silent until the time for reviewing the proceed- ings has expired, and then brings an action of tort against defendant for trespassing upon the lands thus recovered, sufficient fraud is shown to warrant an injunction to restrain plaintiff in the former action from setting up the judgment therein as an estoppel. ^^ § 20-t. Satisfactory proof of fraud required. In the class of cases under consideration satisfactory proof is required of th(^ fraud upon which the judgment is sought to be enjoined. And an injunction, if already granted, will not be sustained because of fraud on th(> part of the judgment creditor when the allegations of fi-aiid arc fully negatived by answer and are ■•!' Holland v. Trotter, 22 Grat, ''i' Anderson v. Oldham, 82 Tex., 136. 228, 18 S. W., 557. r-i Currier c. Esty, 110 Mass., 536. ClIAl'. lir.| AGAINST .rrDG.MFA'I'S. 201 not established by proof, and when it does not appear that defendant in the action at law was defeated by accident or surprise. •''- § 205. Plaintiff must come into court with clean hands. It is also to be borne in mind that he who would have equitable relief against a judgment upon the ground of fraud, must himself come into the court with clean hands, since courts of e<[uity will not interpose their extraordinary relief by injunc- tion in favor of one who has himself participated in the fraudu- lent action which is made the basis of relief.'"'^ Where, there- fore, a debtor in failing circumstances executes a bond with a warrant of attorney to confess judgment, for the purpose of hindering and defrauding his creditors, he will not after- ward be allowed an injunction to restrain proceedings under the judgment. ^"^ So where one without consideration confesses judgment for the purpose of withdrawing his property from the demands of creditors of an incorporated eompan}^ in which he is a shareholder, he will not be allowed to enjoin the enforce- ment of the judgment thus fraudulently confessed.'^-'' § 206, False representations by vendor of patented medi- cines. Where the right to manufacture a particular medicine, composed of certain ingredients in certain specified propor- tions, and to procure letters patent thereon, was conveyed to a purchaser, an interlocutory injunction was granted until the hearing to restrain the enforcement of judgments for the pur- chase; money, upon a bill alleging false representations by the vendor as to the active agent or ingredient of the medicine, such representations being the inducement to make the pur- chase. •'5''' ■'■- Briesch v. McCauley, 7 Gill, '■* Bateman r. Ramsay, Sau. & 189. Sc, 459. ■"'•■i Bateman r. Ramsay, Sau. & •"■•'' McCurdy r. Martin, 5 Ir. Eq., Sc, 459; McCurdy r. Martin, 5 Ir. 515. And see Taylor (;. Campbell, Eq., 515. And see Taylor r. Camp- 10 Ir. Eq., 249. bell, 10 Ir. Eq.. 249. ■'<■ Flippin r. Knaffle, 2 Tenn. Ch., 238. 202 INJUNCTIONS. [chap. III. § 207. Ejffect of final injunction. When an injunction is made perpetual against the enforcement of an execution under a judgment at law because of fraud in procuring the judgment, the effect of such final injunction is only to pre- vent the use of the process of the court, without annulling the process itself. In other words, the injunction in such case does not operate upon the process of the court itself, but only enjoins defendant from using that process.^'^ § 208. Enforcement of vacated judgment enjoined. The enforcement of an execution upon a judgment for the recovery of lands, which has been vacated and set aside, may be properly enjoined, especially when the plaintiff in such vaca- ted judgment has long acquiesced therein without complaint.^^ § 208 a. Injunction against judgment for alimony. Where a wife obtains a judgment for alimony in a divorce proceed- ing against her husband, the enforcement of such judgment will be enjoined in a subsequent suit for absolute divorce insti- tuted by the husband against the wife upon the ground that she was a married woman at the time of her marriage to the plaintiff. In such case the court entertains jurisdiction upon the ground that it would be against conscience to permit the enforcement of the judgment.^^ 57 Gainty v. Russell, 40 Conn., has been satisfied under a compro- 450. mise between the parties, see Wray 58 Marsh v. Prosser, 64 Ind., 293. v. Chandler, 64 Ind., 146. As to the facts which constitute so Scurlock v. Scurlock, 92 Tenn., sufficient ground for enjoining the 629, 22 S. W., 858. enforcement of a judgment which CHAP. III.] AGAINST JUDGMENTS. 203 IV. Accident, Mistake, Ignorance and Surprise. § 209. Foundation of the jurisdiction; loss of instruments; sickness; ignorance of service of process. 210. Distinction between accident and carelessness; illustrations. 211. Distinction between mistakes of fact and of law. 212. Mistake of fact ground for enjoining judgment. 213. Mistake of clerk; second injunction allowed for mistake; mis- calculation of jury. 214. When judgment too large injunction allowed only as to ex- cess. 215. Mistake of court ground for injunction; facts should be stated in bill. 216. Mistakes of counsel no ground for injunction. 217. Laches and negligence a bar to relief. 218. Remedy at law bars relief. 219. Distinction between ignorance of law and of fact. 220. Ignorance of fact, when ground for injunction. 221. Ignorance or misconduct of attorney no ground for enjoining judgment; insolvency of attorney immaterial. 222. False return of service by sheriff; diligence required. 223. Assignee of note; notice of equities. 224. Surprise as a ground for relief; gaming. 209, Foimdation of the jurisdiction; loss of instruments; sickness; ignorance of service of process. The jurisdiction of equity in restraint of judgments obtained against persons who, through accident, mistake, ignorance, or surprise, have been prevented from establishing their defense at law, results from its well established jurisdiction over these general sub- jects, and is governed by the same general principles. The relief is extended, primarily, for the prevention of irreparable mischief which courts of law are powerless to redress. Thus, the loss at the time of trial of a written agreement between the maker and payee of a note, relating to the contract in pursuance of which the note was made, and without which the maker could not establish his defense at law, will au- thorize an injunction against the judgment.^ And the loss 1 Vathir v. Zane, 6 Grat., 246. 204 INJUNCTIONS. [CIIAP. III. of a written instrument which would liave operated as a defeasance of a bond has been deemed sufficient to war- rant an injunction against the judgment, even where the defense was not relied upon at law.- So equity will restrain a judgment on the ground that the debt on which the action was brought had been paid, defendant having been pre- vented from pleading such payment at law by accident, and without laches on his part."' So where judgment was obtained against a defendant upon a promissory note, to which his name had been forged, and he was notified by the sheriff, who served him with process, that he need not appear at the return term, and that the other makers of the note would appear and defend for him, it was held that these facts, coupled with the sickness of such defendant, and the fact that the other defendants did employ counsel who appeared and pleaded for the defendants but afterwards withdrew their plea, w^ere sufficient ground for enjoining the enforcement of the judgment against him.* And a judgment recovered upon a note which is barred by the statute of limitations, w^hich was properly pleaded, may be enjoined until the hearing when the defendant in the action was sick and his counsel was absent at the hearing, the judgment having been confessed by one not the attorney of the defendant in the action and without authority in the premises.-'* And where a case, when reached for trial, was continued upon plaintiff's motion and, through accident or mistake, an order was entered continuing it at defendant's cost, the enforcement of such judgment for costs is properly enjoined.*"' And where a foreign corporation was required, as a condition to doing business in a state, to desig- nate fi state officer as an attorney to receive service of process, the fjiihire of such officer to notify the corporation, as required -' Wilson r. T:)aviR, 1 Marshall, ' Rowland v. .Tones, 2 Heisk., 321. 219. ■■ Cheek r. Taylor, 22 Ga.. 127. ;< Hnmphrcys r. Leggett, !• How., '• Williams r. Pile, 104 Tenn., 297. * 27.3. !"i6 S. W., 8.33. CHAr. III.] AGAINST JUDGMENTS. 205 by law, of the service of summons in a pending action, is sufficient ground for enjoining a judgment subsequently ren- dered by default. In such case the negligence of the state official in failing to notify the corporation is not attributable to the latter, since it has no choice in the matter as to his selec- tionJ But where, in an action against a county, service is had upon the county clerk, his failure to notify the proper county officials of the fact of service is no ground for an injunction, since the negligence of the clerk, he being the agent of the county, is that of the county.*' § 210. Distinction between accident and carelessness ; illus- trations. It is important, however, to distinguish carefully between that degree of unavoidable accident which will war- rant relief in equity against a judgment, in the exercise of the ancient and well defined jurisdiction of equity upon the ground of accident, and mere laches or carelessness upon the part of a defendant in failing to take proper measures for his defense in the action at law. And whenever the judgment complained of, and which it is sought to enjoin, has resulted from defend- ant's own carelessness, laches or omission to properly prepare or present his defense, he can not obtain relief by injunction, such cases being clearly distinguishable from those of unavoid- able accident already considered.^ Thus, the absence of a wit- ness in behalf of defendant in an action at law affords no ground for relief by injunction against the judgment, when no reasonable diligence was used in endeavoring to obtain the attendance of such witness, and when no effort was made to procure a continuance because of his absence.^ *^ Nor will the absence of defendant upon the trial of the action warrant an 7 National Surety Co. v. State » See Matthis r. Town of Cam- Bank, 56 C. C. A., 657, 120 Fed., eron, 62 Mo., 504; Gott v. Carr, 6 593, 61 L. R. A., 394. G. & J., 309; Shaffer r. Sutton, 49 8 Knox County v. Harshman, 111., 506; Crim v. Handley, 4 Otto, 133 U. S., 152, 10 Sup. Ct. Rep., 652. 257. 10 Gott r. Carr, 6 G. & J., 309. 206 INJUNCTIONS. [chap. III. injunction against the judgment, since it is the duty of a defendant to be present at the trial, in person or by attorney, to avail himself of his defense to the aetion.^i And the mere neglect of a public officer, such as the chairman of a board of trustees of a town, to defend an action against the town which he represents, will not justify a court of equity in restraining the payment of the judgment in the absence of any showing of fraud or collusion.^- So a judgment will not be enjoined because of the absence of one of defendant's coun- sel upon the trial, nor because one of the witnesses for defend- ant was so sick during his examination as to impair his recol- lection, and render him incapable of stating material facts within his laiowledge, defendant having failed to ask a post- ponement or continuance of the trial upon this ground.^^ And the fact that defendant in an action at law was, by reason of sickness, unable to attend the court to which he was sum- moned, does not relieve him of the duty of diligence in assert- ing his defense at law, and affords no ground for enjoining a judgment recovered against him upon a just and meritorious cause of action.^"* So where defendant in a judgment seeks to enjoin its enforcement against him upon the ground of an offer of compromise and settlement made before the judgment and pending the suit at law, which offer was accepted by plain- tiff, but defendant failed to pay the money required, the fact that he paid no further attention to the suit after the offer of compromise will not warrant the court in enjoining the judgment.^ •'"' § 211. Distinction between mistakes of fact and of law. With regard to the relief against judgments obtained through mistake, a distinction is drawn between cases where the mis- take is one of fact and where it is of law. And while in the former case the relief is freely exercised upon sufficient cause I'Gott r. Carr, 6 G. & J., 309. I'f Grim v. Handley, 4 Otto, 652. i^Matthis V. Town of Cameron, !•» Shaffer v. Sutton, 49 111., 506. 62 Mo., 504. 1'' Lowry v. Sloan, 51 Ga., 633. CHAP. III.] AGAINST JUDGMENTS. 207 shown, equity will not interfere where the mistake is one of law.^^ Thus, a naked mistake in law will not warrant an injunction against a judgment upon a note which was executed voluntarily and with full knowledge of all the facts.^"^ Nor will the relief be awarded where the mistake is mutual to both parties to the action, as where defendant confessed judg- ment for the purpose of afterward removing the cause to a higher court on appeal, and it being afterward found that the right of appeal did not exist.^^ Even though the damages are obviously excessive, yet there being no fraud, but simply a mistake of law in which both parties have joined, the injunc- tion will be refused.i^ Nor will the fact that the mistake was caused by the suggestion and advice of the court consti- tute sufficient ground for an injunction.-*^ § 212. Mistake of fact ground for enjoining judgment. Though a mistake of law does not constitute sufficient ground to restrain a judgment, as we have seen in the preceding sec- tion, yet a mistake of fact will frequently warrant a court of equity in the exercise of this jurisdiction. Thus, a judgment obtained through mistake, for an amount greater than that actually due, constitutes such a case as will warrant the inter- position of equity.-^ If, however, the judgment has been ren- dered on an account stated between the parties, the amount due being agreed upon, it will not be enjoined because of an alleged mistake in the account, which was not discovered until after the verdict was rendered, and after the time for a new trial had elapsed.^^ Where the appearance of a defendant was entered by mistake, and without service of process upon him, 16 Hubbard v. Martin, 8 Yerg., is Richmond & S. R. Co. v. Ship- 498; Richmond & S. R. Co. v. Ship- pen, 2 P. & H. (Va.), 327. pen, 2 P. & H. (Va.), 327; Risher i9 Id. V. Roush, 2 Mo. (2d ed.), 77; 20 Risher v. Roush, 2 Mo. (2d Meem v. Rucker, 10 Grat, 506; ed.), 77. Shricker v. Field, 9 Iowa, 366. 21 Chase v. Manhardt, 1 Bland, 17 Hubbard v. Martin, 8 Yerg., 333. 498. . 22 Falls v. Krebs, 5 Md., 365. 208 INJUNCTIONS. [chap. III. a proper case is afforded for relief against the judgment ; but, in such case, the injunction should not be made perpetual, and should only continue until defendant can be let in to make his defense at law in the court where tl^e judgment was obtained.--' But the fact that process was served upon the wrong person, who makes no defense at law, but allows judgment to be taken against him by default, and execution having issued, gives a forthcoming bond, will not warrant an injunction.^^ § 213. Mistaiie of clerk; second injunction allowed for mis- take ; miscalculation of jury. A judgment of an inferior court may be enjoined where complainants show a good defense upon the merits, which they were prevented from making by the dismissal of their appeal, because of a mistake of the clerk in not drawing the appeal bond properly, and without fault on their part.-^ Even after one injunction against a judgment has been dissolved, another may be granted and made per- petual upon new matter of which complainant was ignorant at the time of the dissolution of the first, the new equity con- sisting of a mistake as to an important fact of which both parties were ignorant at the time the judgment was obtained and the former injunction dissolved.^^ And a mistake or a miscalculation of the jury, such as, if discovered in time, would have furnished good ground for a new trial, will warrant a court of equity in restraining a judgment.^' § 214. When judgment too large injunction allowed only as to excess. Where the mistake consists either in awarding judgment or in issuing execution for an amount greater than that which is actually due, the injunction should be allowed only as to the excess over and above that justly due. Thus, -•■• Campbell r. lidwards, 1 Mo. •■;<■ Armstrong r. Hickman, 6 (2(1 ed.), 231. Munf., 287. ■-;■« Chisholm r. Anthony, 2 H. & -iT Chase v. Manhardt, 1 Bland, M.. 13. 333. '-;•'• Saunders r. .lonnings. 2 J. .1. Marsh., 513. CHAP. III.] AGAINST JUDGMEXTS. 209 where, through mistake, judgment is obtained for too great an amount, the verdict itself will not be disturbed as to the sum really due, nor will a new trial be ordered; the judg- ment will merely be enjoined as to the excess and allowed to operate as to the remainder.-*^ Or where an error has been committed in issuing a writ of^. fa. for an amount greater than that to which the judgment creditor is entitled, the injunction will be limited to the amount erroneously included, and the whole judgment will not be enjoined.^'^ § 215. Mistake of court ground for injunction ; facts should be stated in bill. The cases in which relief by injunction against a judgment at law may be allowed, because of mis- takes of fact, are not limited to mistakes on the part of the parties to the litigation, and relief has been allowed because of mistakes of fact upon the part of the court. For example, where a bill of exceptions is dismissed in an appellate court because of a mistake in the date of the certificate, but such mistake is shown to have been that of the judge who signed the bill, and not of the parties or counsel, it is proper to re- strain the enforcement of the judgment until a full hearing can be had upon the merits.^^ So where by the mistake of the magistrate before whom a cause is pending, in failing to note the name of counsel for the defense of a suit, judg- ment is had by default, and the defendant in ignorance of the facts permits the time for an appeal to elapse, execu- tion upon the judgment may be enjoined until a full hear- ing can be had upon the merits, the bill disclosing a defense to the original action. In cases of this nature, however, where one seeks to enjoin a judgment against him upon the ground that he had a good defense at law which he was prevented from making, it is not sufficient to allege, gen- erally, that he was prevented from making his defense by -"* Barrow v. Robichaiix, 14 La. ■;!' Kohn \-. Lovett, 43 Ga., 179. An., 207. "" Brewer r. Jones, 44 Ga., 71. 14 210 INJUNCTIONS. [chap. III. mistake, oversight, or omission, but he should allege the facts as they occurred, so that the court may determine whether the result was due to any fault or want of diligence upon his part in failing to defend at law.^^ § 216. Mistakes of counsel no ^ound for injunction. Not- withstanding injunctions are somewhat freely granted against the enforcement of judgments upon the ground of mistakes of fact, as is thus shown, yet the mere omissions or mistakes of counsel in the conduct or management of an action at law can not be made the ground for renewing the litigation by enjoining the judgment. Defendant in a judgment can not, therefore, enjoin its enforcement because of matters of defense of which he might have availed himself in the former action, but which were omitted under the advice of his counsel.^^ ]sjor is it sufficient ground for enjoining a judgment that plaintiff's attorney has failed to enter a credit upon the execution in accordance with an agreement to that effect.^^ § 217. Laches and negligence a bar to relief. Laches upon the part of the complainant seeking relief by injunction upon the ground of mistake, may debar him from the aid of equity, even in a case which is otherwise meritorious. And when com- plainant seeks to enjoin a judgment because of a mistake in the date of the bill of exceptions, but he has been guilty of gross laches in not endeavoring to correct the mistake in due season, having been fully apprised of it, he will be refused relief.^^ So a judgment will not be enjoined by reason of a mistake in defending the action, the only effect of which was that defendant in the action failed to obtain a review of his case in a higher court, the real purpose of the injunction suit being only to obtain such review, the defendant having shown a want of ordinary care and diligence in the conduct of his defense.35 ^1 Simons v. Martin, 53 Ga., 620. •'!■» Smith v. Fouclie, 55 Ga., 120. :i- Hambrick v. Crawford, 55 Ga., ■■^> Quinn v. Wetherbee, 41 Cal., 335. 247. 33 Brown v. Wilson, 56 Ga., 534. CHAP. III.] AGAINST JUDGMENTS. 211 § 218. Remedy at law bars relief. The jurisdiction of equity in restraining the collection of judgments upon the ground of mistake is thus shown to be governed by the same general and controlling principles which prevail in other branches of its extraordinary preventive jurisdiction. And it is important also to note that the general doctrine denying relief by injunc- tion where ample remedy exists at law applies with equal force in this as in all other branches of the law under consideration. Thus, an injunction will not be granted for the correction of a mistake in an allowance and classification by a court of pro- bate of claims against an estate, when ample relief may be had by proceedings in the probate court itself to have the mistake corrected by an entry nunc pro tunc.^^ Nor will the enforce- ment of a judgment be restrained because of a mistake on the part of defendant at law in interposing his defense in proper time, when the court of law has ample power to afford relief, but has refused, after hearing, to set aside the judgment upon defendant's application.^^ § 219. Distinction between ignorance of law and of fact. The distinction already observed between mistakes of law and of fact in the exercise of the jurisdiction of equity in restraint of judgments applies with equal force to cases where the relief is sought upon the ground of ignorance. And it is held that, while ignorance of material facts necessary to establish a legal defense may warrant the interposition of equity, ignorance of law does not afford sufficient reason for the exercise of the jur- isdiction.3^ Thus, where one has failed to make his defense at law through ignorance of the nature of the proceedings against him, and of the necessary steps to be taken, he will not be allowed to enjoin the judgment.^^ 36 Jillett V. Union National Bank, 39 Meem v. Rucker, 10 Grat, 506. 56 Mo., 304. And it is held that in such case, a 3v Reagan v. Fitzgerald, 75 Cal., mere averment of the facts relied 230, 17 Pac, 198. upon to entitle complainant to re- 3s Meem v. Rucker, 10 Grat., 506; lief against the judgment, will not Shricker v. Field, 9 Iowa, 366. suffice, but the matter alleged in 212 INJUNCTIONS. [chap. III. § 220. Ignorance of fact, when ground for injunction. It may be laid down as a general rule that ignorance of im- portant facts material to the establishment of a defense to the action at law will, in the absence of laches on the part of de- fendant, warrant a court of equity in extending relief by in- junction against the judgment.^" Thus, where defendant, before and at the time of recovering judgment against him, was igno- rant of facts which would have constituted a valid defense at law, an injunction may be allowed to restrain the judgment.^^ So where, by collusion upon the part of the president of a corporation, judgment was recovered against the corporation, its shareholders, who were ignorant of the proceedings, and who had no opportunity of resisting the judgment, are entitled to an injunction.^- So also, where the purchaser of lands is sued for the unpaid purchase money, and remains in ignorance of the fact that the vendor had not a good title to the premises conveyed until after judgment is recovered against him, such ignorance will be regarded as a sufficient excuse for not de- fending at law, and the purchaser may still be allowed an in- junction against the judgment."*-'' But in all such cases, com- plainant must be entirely free from fault or neglect ; and where, by the exercise of reasonable diligence, he might have ascer- tained the facts constituting his defense, the relief will be de- nied."** excuse for not having defended at can r. Lyon, 3 Johns. Ch., 351; law must be proven. Id. Upon Fitch r. Polke, 7 Blackf., 564. this point the case certainly lacks -ti igiehart v. Lee, 4 Md. Ch., 514; the weight of authority, and it is Hubbard i\ Hobson, Breese, 147. believed that no other decision has See also Holt's Ex'rs r. Graham, gone to this extent. 2 Bibb, 192: Cunningham r. Cald- 40 Hubbard v. Hobson, Breese, well, Hardin, 131. 147; Igiehart r. Lee, 4 Md. Ch., *- Cape Sable Company's Case, 3 514; Cape Sable Company's Case, Bland, 60G. 3 Bland, 606. And see Williams v. *■■ Fitch r. Polke, 7 Blackf., 564. Lee, 3 Atk., 223; LeGuen r. Gouv- ■*+ Harding r. Hawkins. 141 111., erneur, 1 Johns. Cas., 436; Barker .^)72, 31 N. E., 307, 33 Am. St. Rep., V. Elkins, 1 Johns. Ch., 465; Dun- 347; Spokane Coop. M. Co. r. Pear- sou, 28 Wash., 118, 68 Pac, 165. CHAP. III.] AGAINST .lUDOMEXTS. 213 §221. Ignorance or misconduct of attorney no ground for enjoining judgment; insolvency of attorney immaterial. The operation of the rule, as regards ignorance of law, is not con- fined to the case of a party's own ignorance, but in conformity with the maxim qui facit per allum facit per sc, ignorance or mistake on the part of counsel employed in a cause will not au- thorize an injunction against the judgment.^-''' So in the ab- sence of fraud mere negligence on the part of an attorney re- tained to defend a suit, is not sufficient ground for the inter- ference of equity to restrain a judgment.-**^ So the negligence or improper conduct of an attorney employed to defend a suit at law, or his failure or neglect to defend the action, will not justify an injunction against the judgment.'*'^ And in such cases, the relief is properly denied, even though it appeared that the defendant had a good defense to the action, and the attornej^ through whose fault the judgment resulted, is in- solvent.'*^ Nor does it constitute ground for relief that the plaintiff in the judgment has knowingly permitted the time to pass in which the defendant might have had the judgment set aside, without informing the defendant of its existence.^^ Nor wnll the abandonment of a cause by an attorney w^arrant an injunction against the judgment where other counsel were employed and a trial had, there being no allegations of fraud.^<^ ■i-' Shricker v. Field, 9 Iowa, 366; Inown, 97 Ky., 757, 31 S. W., 874. Winchester v. Grosvenor, 48 111., 31 L. R. A., 33, 53 Am. St. Rep.. 517. 437; Kern v. Strausberger, 71 111. ^«Wynn v Wilson, Hemp., 698. 413; Clark v. Ewing, 93 111., 572; But in a subsequent application to Bardonski r. Bardonski, 144 111., the court for an injunction in the 284, 33 N. E., 39. same cause, fraud being shown in -s*^ Kern v. Strausberger, 71 111 , the assignment of the notes on 413; Clark v. Ewing, 93 111., 572; which the judgment was founded, Bardonski r. Bardonski, 144 111., the relief was allowed. See note 284, 33 N. B., 39. to same case. ^:> Amherst College r. Allen, 165 *~ Chester v. Apperson, 4 Heisk., Mass., 178, 42 N. E., 570. 639; Odell r. Mundy. 59 Ga., 641: -"Winchester r. Grosvenor, 48 Amherst College r. Allen, 165 Mass., 111., 517. 178, 42 N. E., 570: Payton r. Mc- 214 INJUNCTIONS. [chap. III. §222. False return of service by sheriff ; diligence required. Where judgment has been rendered against defendant without notice and without appearance or defense on his part, the sheriff having made a false return of service, equity will re- lieve against the judgment on the ground that the circum- stances rendering it void are extrinsic to the judgment, and a court of law is, therefore, powerless to arrest its execution.^i Nor, in such a case, is it material to inquire whether a defense could have been made at law, the injury complained of being that the judgment was rendered without notice and without opportunity to defend.^- But it is held that an allegation in the bill that defendant in the action at law did not come into possession of the facts upon which he asks relief against the judgment will not, of itself, suffice, but it must appear that he could not have obtained such data by the use of ordinary diligence.-'^^ And when it is sought to enjoin a judgment upon the ground that the cause of action had been fully paid be- fore judgment, of which fact defendant was ignorant at the time of the hearing, but the facts disclose gross negligence on his part in not defending upon that ground, the injunc- tion will be refused.^^ §223. Assignee of note; notice of equities. Proceedings under a judgment in favor of the assignee of a note for val- uable consideration will not be restrained where the assignee was ignorant of complainant's equities when he took the note, even though such equities might warrant the court in re- straining the payee of the note from its collection.-'^^ But the rule is otherwise when the assignee has taken the note with notice."''^ 51 Ridgeway v. Bank, 11 Humph., ■•- Ridgeway v. Bank, 11 Humph., 523; Huntington v. Crouter, 33 523. Ore., 408, 54 Pac, 208, 72 Am. St. ■<■• Leggett r. Morris, 6 Sm. & M., Rep., 726; Dowell r. Goodwin, 22 723. R. I., 287, 47 Atl. 693, 51 L. R. A., •■' Tutt r. Ferguson, 13 Kan., 45. 873, 84 Am. St. Rep., 842. ''"• Donelson r. Young, Meigs, 155. •'•« King r. Baker, 1 Yerg., 450. CHAP. III.] AGAINST JUDGMENTS. 215 §224. Surprise as a ground for relief; gaming. Surprise will authorize a court of equity to interfere in certain cases and restrain proceedings under a judgment. Thus, where de- fendant had no knowledge of the existence of the suit at law against him until after judgment obtained, an injunction has been allowed on the ground of surprise.''^ But an execution under a judgment in attachment will not be enjoined on the ground of surprise where process was actually served upon the defendant.^* Nor can the validity of the judgment upon which the attachment was issued be assailed collaterally in a suit in equity to restrain proceedings under the judgment.^^ Where the consideration for the promise on which the action was brought was money lost at gaming, if the defendant is surprised at the trial, it is held that he may afterward come into equity for relief.*'^ But the mere want of preparation for trial on the part of defendant in the action will not justify an injunction against the judgment, when no application was made for a postponement of the trial upon that ground, and when the case was fully tried upon its merits.^^ 5T Mosby V. Haskins, 4 Hen. & «« White v. Washington, 5 Grat., M., 427. 645. 58 Peters v. League, 13 Md., 58. 6i Dilly v. Barnard, 8 G. & J., 59 Id, 170. 216 INJUNCTIONS. [chap. III. V. Irregular, Erroneous and Void Judgments. § 225. Irregularities, no ground for injunction. 226. Errors of law, no ground for injunction. 227. The rule illustrated; judgment against minor; exception to rule. 228. Void judgments; authorities conflicting. 229. Judgment void for want of service of process enjoined. 229a. Dci'ensc to action on which judgment founded. 230. Tendency toward adoption of test as to remedy at law. 231. Injunction against sale under execution; remedy at law the test, 231a. Effect of void judgment on statute of limitations. § 225. Irregularities no ground for injunction. It is a well established rule that the interference of equity will not be granted for the purpose of correcting mere irregularities or in- formalities in judicial proceedings. And where a judgment is assailed upon the ground of irregularity in the proceedings antecedent to obtaining the judgment, an injunction will not he allowed.^ Thus, in the absence of allegations of fraud, ir- regularities in the service of process will not constitute ground for an injunction, upon the general principle that equity will not sit as a court of review to revise irregularities in pro- ceedings at law.- Especially will the relief be refused in such case where the bill admits an indebtedness without offering to pay it.-'^ So equity will not restrain an execution for such irregularities as entering up the judgment in the firm name in- stead of the individual names of the persons composing a part- 1 Gardner v. Jenkins, 14 Md.. 58; 51 N. E., 330; Gum-Elastic R. Co. Boyd V. Chesapeake, 17 Md., 195; v. Mexico P. Co., 140 Ind., 158, 39 Stites V. Knapp, 2 Ga. Decis., 36; N. E., 443,-30 L. R. A., 700. See Drake v. Hanshaw, 47 Iowa, 291; also Murphree v. Bishop, 79 Ala., Clopton 7;. Carloss, 42 Ark., 560; 404.' Devinney v. Mann, 24 Kan., 682; ^ Gardner ?'. Jenkins, 14 Md., 58; Galveston, H. & S. A. R. Co. v. Boyd r. Chesapeake, 17 Md., 195; Dowe, 70 Tex., 1 ; 6 S. W., 790; Stites r. Knapp, 2 Ga. Decis., 36; Rhodes B. F. Co. r. Mattox, 135 V/indisch r. Gussett, 30 Tex., 744. Ind., 372, 34 N. E.. 326, 35 N. E., See Carter v. Griffin, 32 Tex., 213. 11 ; Hart r. O'Ronrke, 151 Ind., 205, ^ Gardner v. Jenkins, 14 Md., 58. CHAP. III.] AGAINST JUDGMENTS. 217 nersliip, the remedy at law being considered ample by a mo- tion to set aside the judgment.^ So the enforcement of a judgment rendered in a garnishment snit will not be enjoined upon the ground that the affidavit required by law was not filed, the remedy being by appeal.-'"' And it may be laid down as a rnlo that the powers of equity can not be invoked to restrain execution upon the ground of irregularity, since it is the province of a court of law to annul its own i)rocess or correct any errors in its own proceedings concerning execu- tions.*' Nor, in the absence of fraud, will errors or irregulari- ties in the action of the court warrant an injunction against a judgment,''' especially when the party complaining might have availed himself of such errors upon an appeal, if prosecuted in due season.^ And although no remed}' be provided by ap- peal from the judgment of a justice, its enforcement will not be enjoined because of error in the proceedings." § 226. Errors of law, no ground for injunction. In accord- ance with the principle noticed in the preceding section, that a court of equity will not sit as a court of errors to revise or correct proceedings at law, an injunction will not be granted against a judgment because of errors in the proceedings at law, or in the rulings of the court, but the judgment wnll be left to be reversed in a court of review.^ ^ An additional reason 4 Mclndoe v. Hazelton, 19 Wis., « Galveston, H. & S. A. R. Co. o. 567. But in Hampson v. Weave, Dowe, 70 Tex., 1. 4 Iowa, 13, an injunction against lo Stocltton v. Briggs, 5 Jones an execution was upheld on the Eq., 309; Reynolds r. Horine, 13 ground that the execution was im- B. Mon., 234; Dunn /-. Fish, 8 properly and irregularly issued. Blackf., 407; Cassell /•. Scott, 17 r^^ Hart ?\ O'Rourke, 151 Ind., 205, Ind., 514; Gum-Elastic R. Co. v. 51 N. E., 330. Mexico P. Co., 140 Ind., 158, 39 N. Wagner v. Pegues, 10 S. C, 259; E., 443, 30 L. R. A., 700; Hart v. Will-.inson v. Rewey, 59 Wis., 554; O'Rourke, 151 Ind., 205, 51 N. E., Hastings v. Cropper, 3 Del. Ch., 330; Rosenberger r. Bowen 84 Va.. 165. 660, 5 S. E., 699; Commercial Un- 7 Neville r. Pope, 95 N. C, 346. ion Assurance Co. v. Scammon, 133 8 Clopton r. Carloss, 42 Ark., 560. 111., 627, 23 N. E., 406. 218 INJUNCTIONS. [chap. III. for refusing the relief upon the ground of error is found in the fact that if the jurisdiction were entertained it would be virtually permitting the error of a court of law to create an equity. 11 Especially where complainant admits the debt to be due will the interposition of equity be refused, although it is alleged that the judgment is erroneous and contrary to law.^- Even where the error relied upon may have been sufficient to w^arrant a new trial at law, equity will not interfere.i^ Nor is the fact that a court of law has erred in excluding testi- mony wdiich should have been admitted sufficient to warrant equity in departing from the rule here laid down.^-* And where a judgment has been affirmed by a court of final resort, which court overlooked a material defect in the proceedings, thereby confirming an erroneous judgment, an injunction will not be granted.! ^ And wdiere a court of law has refused an application which was addressed largely to its discretion, equity will not for this reason interfere. Thus, the refusal to grant a motion for a continuance based upon an affidavit will not authorize an injunction against the judgment.^'"' Nor will the fact that trifling errors have been committed in assessing the costs of a judgment afford any ground for enjoining the execution.!^ And it would seem that an error in the computa- 11 Stockton V. Briggs, 5 Jones equally available at law as in Eq., 309. equity and the party has had an 12 Reeves v. Cooper, 1 Beas., 223, opportunity of making the defense aflBrmed on appeal to the Court of at law, a court of equity has no Errors and Appeals, lb., 498. jurisdiction to relieve against the 13 Reynolds v. Horine, 13 B. Mon., judgment, unless some special 234. ground for the relief can be es- 14 Dunn r. Fish, 8 Blackf., 407; tablished, other than that of error Vaughn v. Johnson, 1 Stockt., 173. in law committed by the court In the latter case the court say: which had jurisdiction of the case." "An interference on such ground i"' Nicholson r. Patterson, 6 would convert the court of chan- Humph., 394. .eery into a court of errors, and i« Western r. Woods, 1 Tex., 1. would be an assumption of ju- I'Calderwood v. Trent, 9 Rob. risdiction which does not belong (La.), 227. to the court. If the defense is CHAP. III.] AGAINST JUDGMENTS. 219 tion of interest on the judgment rendered and which it is sought to execute will not warrant an injunction.^ ^ §227. The ride illustrated; judgment against minor; ex- ception to rule. As still further illustrating the general rule above stated, denying relief by injunction against a judgment because of errors in the proceedings at law, it is held that the failure of the court in which the action was pending to appoint a guardian ad litem to represent an infant defendant will not of itself warrant an injunction against the judgment, the court having had jurisdiction of the person of the defendant and of the subject-matter of the action.^^ So a judgment of a justice of the peace will not be enjoined because rendered upon evidence which was insufficient to warrant the judgment, when relief may be had at law by certiorari?^ Nor will a judgment rendered by a justice of the peace be enjoined be- cause of alleged errors, when the judgment itself is not a nullity, and where the party aggrieved has neglected to pur- sue his legal remedy by appeal,-^ So a judgment rendered by a justice of the peace will not be enjoined upon the ground that the case was tried before a jury of twelve instead of six as required by law, since redress should be had for such an irregularity by appeal.-^ Where, however, in an action for a partition of lands and for an adjustment of partnership affairs between some of the parties, the report of the commissioners appointed to make partition and the verdict of the jury are so indefinite and uncertain that it is impossible to determine IS Walker v. Villavaso. 26 La. 200. But in Texas it is held that a An., 42; Nicklin v. Hobin, 13 Ore., judgment may be enjoined which 406, 10 Pac, 835. was rendered upon a written con- 19 Drake v. Hanshaw, 47 Iowa, tract payable upon its face in 291; Levystein v. O'Brien, 106 Ala., money of the Confederate States. 352, 17 So., 550, 30 L. R. A., 707, Thompson v. Bohannon, 38 Tex., 54 Am. St. Rep., 56. 241. 20Rotzein v. Cox, 22 Tex., 62; 22 Rhodes B. F. Co. v. Mattox, Jordan v. Corley, 42 Tex., 284. 135 Ind., 372, 34 N. E., 328, 35 N. 21 Rountree v. Walker, 46 Tex., E.. 11. 220 IXJ UNCTIONS. [chap. III. what is their real intent and meaning, it has been held proper to enjoin their enforcement.-^ § 228. Void judgments ; authorities conflicting. Upon the question of the jurisdiction of a court of equity to enjoin a judgment at law upon the ground of its being absolutely void, in distinction from one which is merely irregular or erroneous, the authorities are exceedingly conflicting, and it is ditficult, if not impossible, to harmonize or reconcile them. It has been sought to establish the doctrine upon the distinc- tion above noted, between a void judgment and one which is tainted onl}^ with irregularity, that equity may properly en- join if the judgment is absolutely void, but not if it is merely irregular or erroneous. In other words, the line is attempted to be drawn between judgments which are void and those Avhich are only voidable, the rule thus contended for being that in the former case equity may enjoin, but not in the latter.^^ However reasonable the doctrine thus contended for may ap- pear upon principle, it has not been generally received or adopted by the courts, and, aside from cases where the in- validity of the judgment depends upon want of jurisdiction over the defendant because of want of service of process, which will be noticed hereafter, the courts have frequently refused to interfere by injunction because the judgment was void for want of jurisdiction, or otherwise. -^"^ The refusal to interfere in cases where the courts have thus withheld relief by injunction has usually been based upon the ground of a remedy at law. Thus, an injunction has been refused against a judgment and execution which were absolutely void, be- cause the remedy at law b}^ application to the court in which the jiiduiiient was rendered was regarded as adequatc^^^ So -'•■' Butt <;. Oneal, rA Ga., 358. Iowa, 147; Smith v. Deweese, 41 •■itEarl V. Matheney. GO Ind., 202. Tex., 594; Glass v. Smith, 66 Tex., -■• Sanchez v. Carriaga, 31 Cal., 548, 2 S. W., 195. See also Cooke 170; Crandall r. Bacon, 20 Wis., v. Burnham, 32 Tex., 129. 63!); Hart, i: T.azaron, 46 Ga., 396. iic Sanchez v. Carriaga, 31 Cal., See, contra, f'onncll r. Stelson, 33 170. CllAl". 111. J AGAINST JUDGMENTS. 221 where the judgment is void for want of jurisdiction in the court in which the proceedings were had, it has been lield that equity should not interfere by injunction, but should leave the person aggrieved to pursue his legal remedy for redress.-'^ Upon the other hand, it is held that a judgment which is void for want of jurisdiction may be enjoined, even though there be a legal remedy by resisting the enforcement of the execution, or otherwise, the legal remedy not being re garded as fully adequate in such cases.-^ And a judgment has been enjoined which was void, because rendered for a sum in excess of the jurisdiction of the court as fixed by statute.-^ So the relief has been granted when the judgment was void because rendered in vacation.^*^ And a United States circuit court may enjoin the enforcement of a void judgment rendered by a United States district court in another district.^^ And where the only evidence of a judgment were certain minutes made by the judge and the unapproved form of a judgment submitted by the attorneys to the clerk of the court, it was held that executions based thereon were void, and their levy should be enjoined; and the fact that judgment was afterward regularly entered in the cause before the determination of the injunction suit would not have the effect of making the judg- ment relate back and give validity to the executions and thus deprive the plaintiff of the right to relief against their en- forcement.^- § 229. Judgment void for want of service of process en joined. In cases where the judgment which it is sought to -^ Crandall v. Bacon, 20 Wis., 639; Hart v. Lazaron, 46 Ga., 396. And see, as to defect in jurisdic- tion, Stokes V. Knarr, 11 Wis., 389. -f^ Connell v. Stelson, 33 Iowa, 147; Caruthers i\ Hartsfield, 3 Yerg., 366; Smith r. Deweese, 41 Tex., 594; Hilliard /'. Chew, 76 Miss., 763, 25 So. 489. See also Cooke V. Burnham, 32 Tex., 129. -■■> Wilson r. Sparkman, 17 Fla., 871. 30 Mitchell I \ St. John, 98 Ind., 598. ■1 Kirk r. United States, 124 Fed., 324. •■■- Winter v. Coulthard. 94 Iowa, 312, 62 N. W , 732. 222 INJUNCTIONS, [chap. III. enjoin is void for want of jurisdiction arising from the want of» service of process upon defendant, the courts have mani- fested less reluctance in granting the desired relief than in the classes of cases already considered. And .while it is dif- ficult, upon principle, to discover any satisfactory reason why a judgment which is void because defendant was not served with process and was not subject to the jurisdiction of the court should be enjoined, rather than when the judgment is void for other causes, it is nevertheless true that the courts have been far more liberal in extending their extraordinary aid by injunction in the former class of cases than in the latter.33 And where a judgment appears to be regular and valid upon its face, but is void because of want of service of process upon the defendant corporation in manner provided by law, and it is shown that the indebtedness is due from another and different corporation, it is held that the judgment may be perpetually enjoined.^"* So equity will enjoin the enforcement of a judgment which is based upon an unauthorized appear- ance by an attorney purporting to represent complainant ; and in such case, a conditional offer by the complainant to pay a certain sum in full satisfaction of the judgment and costs does not constitute such ^ ratification as to bar him from re- lief,^^ So when a bill to enjoin a judgment alleges that de- fendant in the judgment was not indebted to plaintiff in any •13 See Hickey v. Stone, 60 111.. Iowa, 15, 34 N. W., 485; Gulf, C. 458; Chambers v. King Wrought & S. F. R. Co. v. Rawlins, 80 Tex, Iron Bridge Manufactory, 16 Kan., 579, 16 S. W., 430; Kern Barber 270; Nicholson V. Stephens, 47 Ind., S. Co. v. Freeze, 96 Tex., 513, 185; Grass v. Hess, 37 Ind., 193; 74 S. \V., 303; Finney v. Clark, Grand Tower Mining Co. r. Schir- 86 Va., 354, 10 S. E., 569; Mills v. met, 64 111., 106; Blakeslee v. Scott, 43 Fed., 452. Murphy, 44 Conn., 188; Rice v. To- ^'^ Chambers v. King Manufac- bias, 89 Ala., 214, 7 So., 765; tory, 16 Kan., 270. See also San Raisin Fertilizer Co. v. McKenna, Juan & St. L. M. & S. Co. v. Finch, 114 Ala., 274, 21 So., 816; Guess v. 6 Col., 214. Amis. 54 Ark., 1, 14 S. W., 900; •''•'i Handley v. Jackson, 31 Ore.. Gerrish v. Hunt, 66 Iowa. 682, 24 552, 50 Pac, 915, 65 Am. St. Rep., N. W., 274; Gerrish v. Seaton, 73 839. CHAP. III.] AGAINST JUDGMENTS. 223 manner; that no service of process was ever had upon him; that he know nothing of the pendency of the action until execu- tion issued against him, and that if process was returned served it was by mistake or fraud, it is held to be error to dissolve the injunction and dismiss the bill upon motion. ^^ And the courts have repeatedly held that judgments recovered before a justice of the peace may be enjoined as void for want of jurisdiction when no proper service of process was had upon the defendant in the action, and when he had no oppor- tunity to defend.^^ Thus, where a judgment was recovered against a corporation upon garnishee proceedings before a justice of the peace, ii^ disregard of the statutory method of obtaining service, so that the justice acquired no jurisdiction over the corporation, thereby rendering all the subsequent pro- ceedings void, an injunction was allowed to prevent the en- forcement of the judgment.^^ And it is held that parol evi- dence is admissible in such case to show the want of notice of pendency of the action.^'-^ But a judgment regularly obtained by service of process by leaving a copy at defendant's place 36 Hickey v Stone, 60 111., 458. Mo., 533, 39 S. W., 799, 60 Am. St But see, as to the effect of a sher- Rep., 565; Missouri, K. & E. R. Co iff's return of service of process, in Hoereth, 144 Mo., 136, 45 S. W. an action to enjoin a judgment for 1085. In these cases it is want of service, Krug v. Davis, 85 held that an execution upon a jus Ind., 309. tice's judgment will not be en- 37 Blakeslee v. Murphy, 44 Conn., joined because of want of service 188; Grand Tower Mining Co. v of process, since the defendant Schirmer, 64 111., 106; Grass v. may have adequate relief at law, Hess, 37 Ind., 193; Nicholson v. either by motion in the justice Stephens, 47 Ind., 185; Wagner 'V. court to stay execution, or by ap- Shank, 59 Md., 313; Ryan v. Boyd, peal or certiorari. And see Mas- 33 Ark., 778. See, contra, Gates v. terson v. Ashcom, 54 Tex., 324. Lane, 49 Cal., 266; Luco v. Brown, ^s Grand Tower Mining Co. v. 73 Cal., 3, 14 Pac, 366; Galveston, Schirmer, 64 111. 106; McNeill v. H. & S. A. R. Co. V. Ware, 74 Tex., Edie, 24 Kan., 108; San Juan & St. 47, 11 S. W., 918; Texas-Mexican L. M. & S. Co. v. Finch, 6 Col., 214. R. Co. V. Wright, 88 Tex., 346, 31 -•' Blakeslee v. Murphy, 44 Conn., S. W., 613, 31 L. R. A., 200; St. 188. Louis & S. F. R. Co. v. Lowder, 138 224 INJUNCTIOXS. [ciIAl'. HI. of residence, in accordance with the laws of the state, will not be enjoined, when defendant might have had ample remedy at law, of which he failed to avail himself.^o § 229 a. Defense to action on w^hich judgment founded. Upon the question whether it is necessary for one who seeks to enjoin a judgment as being void for want of service of process, to show that he has a good defense to the action in which the judgment was rendered, the earlier cases displayed the same remarkable conflict of authority which characterizes the whole subject of injunctions against void judgments. Upon the one hand, it was held that, since the judgment was void, no presumption would be indulged in favor of the judgment creditor, and relief was freely granted regardless of the ques- tion of defense. Upon the other hand, it was held that, even though the judgment was absolutely void, the party aggrieved was not entitled to relief unless he could show that the final result would be changed. The more recent decisions, however, have set the question at rest, and it may now be stated as a rule, supported by the great weight of authority, that, even though the judgment be entirely void for want of proper service of process, relief will not be granted unless the com- plainant can show that he has a valid defense to the claim upon which the judgment was founded. The rule as thus an- nounced is not only supported l)y the decided weight of au- thority but seems more in accovd with the fundamental prin- ciples which govern courts of equity in granting equitable re- lief against the enforcement of judgments."*^ .4 fortiori does ^'> Hurlbut r. Thomas, 55 Conn., miller, 20 C. C. A., 274, 74 Fed., 23; 181, 10 Atl., 556. Rice r. Tobias, 83 Ala., 348, 3 So., 41 Winters v. Means, 25 Neb., 670; S. C, 89 Ala., 214, 7 So., 765; 241, 41 N. W., 157; State v. Hill, Raisin Fertilizer Co. r. McKenna, 50 Ark., 458, 8 S. W., 401, over- 114 Ala., 274, 21 So., 816; Gifford ruling upon this point Ryan v. r. Morrison, 37 Ohio St., 502; Sharp lioyd, 33 Ark., 778; Stewart v. r. Schmidt, 62 Tex., 263; dicta in Brooks, 62 Miss., 492; Newman v. Gerrish v. Hunt, 66 Iowa, 682, 24 Taylor, 69 Miss., 070, 13 So., 831; N. W., 274 and Gerrish r. Seaton. :iassachusetts U. !.. Assn. r. Loh- 73 Iowa, 15, 34 N. W., 485. And VllM'. lll.j AGAINST JUDGMEXTS. 225 the rule apply where the judgment is merely voidable as the result of minor irregularities in the service of process."*- Nor will equity enjoin a judgment because of service which is merely defective as distinguished from that which is entirely void, when it is not shown that the party complaining was in any manner misled by such defect.^-"' § 230. Tendency toward adoption of test as to remedy at law. While the discussion of this branch of the preventive jurisdiction of equity as applied to void judgments, as shown in the preceding sections, has demonstrated a remarkable con- flict of authority upon the right to relief by injunction in such cases, the prevailing tendency of the courts seems toward the establishment of the simple test in such cases, of whether ade- see Handley c. Jackson, 31 Ore, 552, 50 Pac, 915, 65 Am. St. Rep., 839. Contra, Blakeslee v. Murphy, 44 Conn., 188; Ridgeway v. Bank, 11 Humph., 523; Bell v. Williams, 1 Head, 229; Mills r. Scott, 43 Fed., 452. In Kern Barber S. Co. v. Freeze, 96 Tex., 513, 74 S. W., 303, the court make the distinction be- tween the case where the fact of the void service of process does not appear upon the face of the record of the judgment and the case where it does so appear, hold- ing that in the latter case, where it does not depend upon evi- dence aliunde, the enforcement of the judgment will be enjoined without any showing of a meri- torious defense. And under a statute providing that only so much of any judgment shall be enjoined as complainant shall show that he is equitably not bound to pay, a judgment rendered before a justice of the peace will not be re- 15 strained for want of service of pro- cess when complainant shows no legal or equitable defense to the action. Colson y. Leitch, 110 III., 504. In Bankers Life Ins. Co. v. Robbins, 53 Neb., 44, 73 N. W., 269, it was held that the court should not go into the merits of the com- plainant's alleged defense further than to determine that a prima facie defense is presented. And it may well be questioned whether an exception to the rule as announced in the text should not be recog- nized where the void judgment bi^s been rendered by a court be- yo'nd the jurisdiction of complain- ant's domicile; otherwise he is compelled to submit his defense to a court which, without his volun- tary appearance, could never ac- quire jurisdiction over him. •42 Tootle r. Ellis, 63 Kan., 422. 65 Pac, 675, 88 Am. St. Rep., 246, ■i"- Hale r. McComas, 59 Tex., 484. 226 INJUNCTIONS. [chap. III. quale remedy exists at law for the protection of the judgment debtor against the void judgment. Where such remedy exists, either by appeal, certiorari, application to the court itself which rendered the judgment, or in any other legal and ade- quate manner, no satisfactory reason is perceived why equity should depart from the universal rule of withholding its ex- traordinary aid to redress a grievance which is remediable at law. Upon the other hand, where no adequate or complete relief may he had at law in the usual and accustomed methods of procedure, it is equally difficult to conceive of any satisfac- tory reason for withholding relief by injunction, since the in- jury resulting from an absolutely void judgment would be otherwise irreparable. And while the decisions of the courts are, as is already shown, far from being reconcilable, even upon this simple and reasonable test, it is believed that the tendency is towards its ultimate adoption as the true solution of this vexed question.^^ §231. Injunction against sale under execution; remedy at law the test. Where the injunction is sought to restrain a sale of one's property under an execution issued upon a judg- ment alleged to be void, the determining question is as to the existence of a satisfactory legal remedy. And if, in such cases, full relief may be had by applying to the court from which the execution issued, to have it quashed, the injunction will be refused, especially when it is not shown that the per- sons seeking to enforce the execution are insolvent or unable to respond in damages at law."*^ Nor will the enforcement of an execution be enjoined upon the ground that the judg- ment and execution do not follow the declaration and verdict and are therefore void, when the person aggrieved has had an opportunity of obtaining relief at law, of which he did not ■••« In West Virginia this test has 535; Connery r. Swift, 9 Nev., 39. been adopted. Railway Co. v. See also Wordehoff i'. Evers, 18 Ryan, 31 West Va., 364, 6 S. E., Fla., 339. But see, contra, Her- 924, ].'} Am. S<. Rep., 865. nandez v. James, 23 La. An., 483. *■■ Stockton r. Raipom, CO TIo.. CHAP. III.] AGAINST JUDGMENTS. 227 properly avail himself.'**^ And when it is sought to restrain a sale of land under execution upon the ground that the judg- ment is void, it is not sufficient to allege its invalidity in general terms, but the facts should be specifically set forth.'*'^ It is held, however that creditors who have instituted an action by attachment against their debtor and have levied upon his personal property, may enjoin a sheriff from selling the same property under a prior judgment and execution against the same debtor, which are void for want of juris- diction in the court over the person of the defendant, the relief being allowed under such circumstances because of the absence of any adequate legal remedy.^^ And the fact that plaintiff in an execution is actually dead at the time of issuing the execution in his name affords sufficient ground for enjoin- ing its enforcement.^^ So where an execution issues in the name of a judgment creditor who is dead, without being prop- erly indorsed in the manner required by statute in such cases, the execution is regarded as invalid, and a sale thereunder may be enjoined.^^ § 231 a. Effect of void judgment on statute of limitations. Where a judgment is void, as for want of proper service of process, the fact of its rendition does not stop the running of the statute of limitations against the cause of action upon which it was founded. ^^ 46 Leonard v. Collier, 53 Ga., 387. 40 Daily v. Wynn, 33 Tex., 614. 47 Dumbould v. Rowley, 113 Ind., so Meek v. Bunker, 33 Iowa, 169. 353, 15 N. E., 463. si Kern Barber S. Co. v. Freeze, ■ 48 Wood V. Stanberry, 21 Ohio 96 Tex., 513, 74 S. W., 303. St., 142. 228 INJUNCTIONS. [chap. III. VI. Judgments upon UsupvIOUs Contracts. § 232. Judgments not usually enjoined because of usury. 233. Exceptions to the rule. 234. Judgment debtor only can take advantage of usury. § 232. Judgments not usually enjoined because of usury. Although courts of equity and of law both have jurisdiction in matters of usury, yet where a cause has been submitted to the legal forum and there decided, equity will not afterward relieve against the judgment in the absence of any special circumstances of fraud, or complicated and embarrassing facts with which the usury is connected.^ And the fact that de- fendant in the action at law upon the usurious contract has had an opportunity to defend on the ground of usury, of which he has failed to avail himself, will estop him from re- lief in equity, no fraud or misconduct being shown on the part of plaintiff at law.^ And unless complainant tenders the amount of principal and interest actually due, after de- ducting the amount alleged to be usurious, he is not entitled to relief, since he Avho seeks equity must himself do equity. ^ § 233. Exceptions to the rule. Notwithstanding the rule as above stated is well established, and equity will rarely inter- fere upon the ground of usury Avhere an opportunity has been neglected of asserting such defense at law, yet there may be cases surrounded with such peculiar circumstances as to render a court of law an inconvenient tribunal, and thus compel a re- sort to equity. And where the I'emedy at law is attended with embarrassment and difficulty, the transaction involving a large number of contracts and being exceedingl.y complex in its na- ture in consequence of the devices resorted to foi- the purpose 1 Lindsley o. James, 3 Cold., 477. 4'.); Morgan r. England, Wright, 2 Buchanan v. Nolin, 3 Humph., 11::!: Walker r. Gurley, 83 N. C, 03; McKoin r. Cooley. 3 Humph.. 429. 559; Lansing/'. Eddy, 1 Johns. Ch., - Neurath r. Hecht, 62 Md., 221. CHAT. 111. J AGAINST JIDGMEXTS. 229 of concealing the nsui-y, a (;ourt of equity may properly in- terfere.* And relief has been granted against judgments by confession, upon the ground of usury.-'* § 234. Judgment debtor only can take advantage of usury. The defense of usui-y is regarded as in the nature of a per- sonal privilege, to be pleaded only by the debtor himself at his option, and the courts will not attempt in behalf of one creditor to enjoin a judgment recovered by another cred- itor against the common debtor, in the absence of fraud. The judgment debtor having had his day in court, and not hav- ing seen fit to interpose the defense of usury in his own behalf, equity Avill not permit his other creditors to open up the trans- action and to enjoin the collection of the judgment upon the ground that the debtor had paid usurious interest, when no fraud is shown in the transaction as against them.*' ■* Frierson o. Moody, 3 Humph., '' Phillips v. Walker, 48 Ga., 55; 561; Chester v. Apperson, 4 Heisk.. Gatewood v. City Bank of Macon, 639. 49 Ga., 45. 5 Hill V. Reifsnider, 46 Md., 555; Ennis v. Ginn, 5 Del. Ch., 180. 230 INJUNCTIONS. [chap. III. VII. Of Judgments upon Gaming Contracts. § 235. Courts inclined to enjoin judgments on gaming contracts. 236. Defense should usually be made at law. § 235. Courts inclined to enjoin judgments on gaming con- tracts. Where the consideratioii for the contract on which the action at law is founded was money lost at gaming, and judgment is obtained against defendant, courts of equity are inclined to be somewhat more liberal in the exercise of their restraining jurisdiction than in ordinary cases, and upon considerations of public policy and the necessity of the pre- vention of gaming they will generally restrain proceedings under the judgment.' Thus, where defendant in an action upon a gaming contract was prevented by surprise from mak- ing his defense available at law, equity will afford relief, even though he made no effort to obtain a new trial at law.^ So equity will relieve against a judgment based upon a promis- sory note, a part of the consideration of which was money loaned for gambling purposes.^ Nor will the fact that the gaming contract has been assigned for value to an innocent holder, ignorant of the origin of the contract, prevent equity from aft'ording relief against the judgment, where gaming is prohibited by statute, even though no defense was interposed ' White V. Washington, 5 Grat., opportunity to defend himself at 645; Woodson v. Barrett, 2 Hen. law. Whereas in the case of a & M., 80; Skipwith v. Strother, 3 gaming promise or security he is Rand., 214. Contra, Smith v. Kem- under no such obligation. And as merer, 152 Pa. St., 98, 25 Atl., 165. he may at first waive all defense s White r. Washington, 5 Grat., at law and seek relief in equity, so 645. And it is said by the court in when he is prevented by surprise this case that "The case of a gam- from making his defense available ing promise or security is an ex- at law, he is not bound to pursue it ception to the general rule on the further in that forum, but may re- subject, that rule being derived sort to equity." from the obligation of the party in " Emerson r. Townsend, 73 Md., most cases to avail himself of his 224, 20 Atl., 984. CHAP. III.] AGAINST JUDGMENTS. 281 at law.^*' In such case the circulation of gaming contracts or securities is considered an evil of equal magnitude with giv- ing them, and one which authorizes the interference of equity by enjoining proceedings under the judgment.^^ § 236. Defense should usually be made at law. Although, as we have seen, courts of equity are inclined to look favor- ably upon applications for relief against judgments obtained upon gaming contracts, yet they are loth to depart from the principle of refusing to interfere where no defense was at- tempted at law. And it is held that a note given for a gam- ing consideration, being absolutely void in itself, full and adequate defense may be made at law, and a court of equity will refuse to relieve where there was no attempt at such defense.i2 And in the absence of any excuse for not having defended at law upon a bond given for money lost in gam- ing, the judgment will not be enjoined.^^ 10 Woodson v. Barrett, 2 Hen. & tion, an injunction already granted M., 80; Skipwitli v. Strother, 3 will not be dissolved, but will be Rand., 214. retained until an issue at law can 11 Woodson V. Barrett, 2 Hen. & determine the fact. M., 80. But see Nelson's Adm'r v. 12 Giddens v. Lea, 3 Humph., 133. Armstrong, 5 Grat, 354, where it is And see Owens v. Van Winkle G. held that in case of doubt as to & M. Co., 96 Ga., 408, 23 S. E., 416. whether the judgment creditor to 31 L. R. A., 767. whom the debt was transferred is Jones v. Jones, N. C. Term R., took it in ignorance that it was 110. founded upon a gaming considera- 232 IN JUNCTIONS. [chap. hi. VIII. Set-offs. § 237. Judgments not usually enjoined because of set-offs. i 238. Damages recoverable at law no ground for relief. 239. Equitable set-offs ground for relief. 240. Injunction allowed when defense of set-off prevented by fraud. 241. Ignorance of set-off, when ground for injunction; partial set-off. 242. Unsettled account; definite amount should be shown; set-off acquired after Verdict not allowed. 243. Effect of insolvency of judgment creditor. 244. Set-off reduced to judgment ground for injunction; equity con- siders real parties in interest. , § 237. Judgments not usually enjoined because of set-offs. While the authorities are not wholly tmiforni upon the ques- tion of the right to enjoin judgments at law upon the ground of set-off, yet the Aveight of atithority unmistakably sustains the proposition that a set-off which may be pleaded at law does not, of itself, warrant an injunction against a jttdgment. And in accordance with the general principle that equity will not interfere wiiere there is ample remedy at law and where a court of law has first obtained jurisdiction of the stibject-mat- ter, a judgment will not usually be enjoined upon the ground of oft'-sets which might have been interposed in defense of the legal action. ^ And where there is no allegation in the bill 1 Hendrickson /;. Hinckley, 17 of law, may be relied upon to en- How., 443; Rives i\ Rives, 7 join a judgment, even where it Rich. Eq., 353; Cummins r. Bent- was not pleaded at law and no ley, 5 Ark., 9; George r. Strange, excuse is offered for not pleading 10 Grat., 499; Winchester r. Gros- it there. And in Chicago, D. & V. venor, 48 111., 517; Cook r. Mur- R. Co. r. Field. 86 111., 270, it is phey, 7 Gill & J., 282; Halcomb ;•. held, in opposition to the doctrine Kelly, 57 Tex., 618; Twigg r. Hop- of the text, that the case of set- kins, 85 Md., 301, 37 Atl., 24. But offs presents an exception to the see, contra, Hughes r. McCoun, 3 general rule denying relief by in- Bibb, 254, where it is held that a junction against judgments upon set-off, being matter of equitable grounds which might have been as well as legal jurisdiction, and urged in defense of the action at not specially cognizable in a court law. And the exception is said to CHAP. 111. J AGAINST JUDGMENTS. 233 that the person aggrieved was prevented from using his set- off in the action at hiw by some unavoidable occurrence, or that he possessed no other evidence by which to establish his set-oft' than the testimony of the opposite party, an injunction will not be allow^ed.- So a sale under a judgment -will not be enjoined upon the ground of set-off, w^hen the alleged set- oft' is wholly independent of and has no connection wath the cause of action upon which the judgment was rendered, and when it is not show-n that the judgment creditor is insolvent.^ Nor will equity restrain proceedings under a judgment on the ground of a set-oft' in respect to distinct and unconnected debts, in the absence of any other circumstances calling for the aid of the court. ^ And where a court of law, having full jurisdiction of the subject-matter and having fully considered the case, has refused to allow a set-oft", equity wdll not after- ward assume jurisdiction and restrain the judgment.^ § 238. Damages recoverable at law no ground for relief. Claims for damages sustained by breach of warranty on the sale of property and for money loaned, which might have been set oft' in defense of an action at law, aft'ord no ground for restraining proceedings under the judgment in the absence of fraud, accident or mistake.'' So, too, damages resulting rest upon the fact that statutes of case, says: "Where courts of law set-off are not imperative, but only and equity have concurrent juris- permissive, and defendant is not diction over a question and it re- bound to set off his demand against ceives a decision at law, equity can plaintiff's action. His failure, no more re-examine it than the therefore, to plead his set-off at courts of law, in a similar case, law will not, it is held, prevent could re-examine a decree of the him from maintaining a bill in court of chancery. * * * i^ i.c equity to enjoin the judgment the unfitness and vexation and in- upon the ground of set-off. decorum of permitting a party to •- Cummins r. Bentley, 5 Ark., 9. go on successively by way of ex- '■'- Baker r. Ryan, 67 Iowa, 708. periment from one concurrent tri- 25 N. W., 890. bunal to another and thus to in * Dade o. Irwin's Ex'r, 2 How., roduce conflicting decisions, that 383. prevents the second inquiry." ^' Simpson i\ Hart, 1 Johns. Ch., " Winchester r. Grosvenor. 48 111.. 91. Kent, Ch., in pa<=:sing upon th'^ 517. 234 INJUNCTIONS. [chap. III. from the wrongful attachment of one's property do not au- thorize an injunction against the judgment, since ample rem- edy exists at law by proceedings upon the attachment bond.''' § 239. Equitable set-offs ground for relief. As regards set- offs which are purely equitable in their nature, in distinc- tion: from strictly legal set-offs, it would seem that they need not be pleaded at law, and defendant who has not urged them in defense of the action may, after judgment obtained, come into equity and restrain the judgment on establishing his equitable set-offs.^ So an equitable set-off which the judg- ment debtor could not have pleaded under the rules of law in defense of the action may entitle him to an injunction against the enforcement of the judgment, when the judgment creditor is insolvent. And the injunction may be allowed under such circumstances, even as against assignees of the judgment, since they stand in no better position than the original judgment creditor himself, and are subject to the same equities.^ So proceedings under a judgment will be re- strained upon the ground of an equitable set-off, even though for unliquidated damages, where the one against whom it is claimed is a non-resident and insolvent.^*' But, notwithstand- ing this apparent exception to the general rule, a judgment will not be enjoined upon the ground of other transactions between the parties upon which there is possibly an equitable set-off." § 240. Injunction allowed when defense of set-off prevented by fraud. Although equity will not, as we have seen, en- join proceedings under a judgment on the ground of set-off " Winchester v. Grosvenor, 48 111., See also Railroad v. Greer, 87 517. Tenn., 698, 11 S. W., 931. « Richmond & S. R. Co. v. Ship- m North Chicago Rolling Mill Co. pen, 2 Pat. & H., 327; Hall v. v. St. Louis Ore and Steel Co., 152 Hickman, 2 Del. Ch., 318. But see U. S., 596, 14 Sup. Ct. Rep., 710, Hudson V. Kline, 9 Grat., 379. reversing, S. C, 39 Fed., 308. » Marshall v. Cooper, 43 Md., 46. u Parks r. Spurgin, 3 Ired. Eq., 153. CHAP. III.] AGAINST JUDGMENTS. 235 where the defendant has neglected to avail himself of the opportunit}' to defend at law, yet if through fraud, collu- sion, or other improper conduct of the plaintiff, he has been induced to omit his defense, the judgment may be enjoined, defendant in the action at law having been guilty of no laches on his part.^2 Thus, where a judgment was obtained in viola- tion of a written agreement that complainant's set-off should be credited on the note in suit and that the suit itself should be dimissed, an injunction has been allowed.^^ And where defendant in the action at law has a good off-set to the de- mand, of which he was prevented from availing himself by the fraud and collusion of plaintiffs, unmixed with negligence or laches of his own, a bill alleging these facts is not demurrable for want of equity-^"* § 241. Iterance of set-off, when ground for injunction ; partial set-off. Ignorance may sometimes afford sufficient ex- cuse for not having pleaded the set-off in defense of the suit at law. And where a judgment has been recovered against an administrator, who afterward discovers set-offs and credits to which his intestate was entitled, but of whose existence de- fendant was wholly ignorant at the time of trial, equity will enjoin proceedings under the judgment.^ ^ But a partial set- ■ off against a judgment will not justify a court in enjoining the entire amount of the judgment.!*^ And when an injunction is granted because of a set-off which is less than the whole amount of the judgment, it should be with the proviso that the judg- 12 Allen V. Medill, 14 Ohio, 445; although defendant is prevented by- Davis V. Tileston, 6 How., 114; unavoidable accident from avail- Dickenson v. McDermott, 13 Tex., ing himself of off-sets in defense of 248. the action at law, he is still not 13 Dickenson v. McDermott, 13 entitled to enjoin the judgment, Tex., 248. but must pursue his remedy at law 1^ Davis V Tileston, 6 How., 114. for the recovery of his demands. i"' Terrill v. Southall, 3 Bibb, 458. is Palfrey v. Shuff, 2 Mart. N. S., But see, contra. Hudson r. Kline, 51. 9 Grat., 379, where it is held that. 236 INJUNCTIONS. [chap. III. ment creditor may proceed by execution to collect the undis- puted balance of his judgment.^" § 242. Unsettled account ; definite amount should be shown ; set-off acquired after verdict not allowed. The mere existence of cross demands is not of itself sufficient to constitute an equitable set-off, or to warrant an injunction, and a court of equity will not on the ground of an open and unsettled ac- count between the parties, restrain a judgment creditor from profiting by his judgment.^ ^ And it is error to enjoin the enforcement of a judgment upon the ground of an alleged set-off or counter claim when no precise or definite amount is shown to be due thereon.^-' And a set-oft' or counter de- mand ac(iuired after verdict, although greater than the amount of the verdict, will not authorize an injunction against the proceedings, since it would be manifestly unjust that plain- tiff should be delayed or hindered in obtaining the benefit of his verdict by interposing a claim not yet established at law.-<^ § 243. Effect of insolvency of judgment creditor. The ques- tio-n of whether the insolvency of the judgment creditor will, of itself, justify an injunction against the enforcement of a judg- 1^ Hodges /•. Planters Bank, 7 verdict, the defendant acquires for Gill & J., 306; Levy /;. Steinbach, the first time a cross demand 43 Md., 212. against the plaintiff, he can not, isRawson r. Samuel, 1 Cr. & Ph., for that reason, by any proceeding 161. See also Hewitt c. Kuhl, 10 at law, defeat or delay the plain- C. E. Green, 24; Townsend (,'. tiff from the benefit of his verdict. Quinan, 36 Tex., 548. It is not reasonable that a cross de- lyPaison v. Mcllwaine, 72 N. C, mand thus subsequently acquired. 312. should delay the plaintiff from the 20 Whyte V. O'Brien, 1 Sim. & benefit of his verdict, until the Stu., 551. "The question," says validity of this demand is ascer- Vlce ■ Chancellor Leach, "is tained by a second trial; and in whether a bill of this kind can be this case equity must follow the maintained. At law, where a de- law. Equitable set-off is where by fendant claims a set-off, the truth reason of the nature of the cross of his claim comes to be tried at demand, there can be no set-off at the same time with the demand law. Here the demand is purely raised by the action, and is decided legal." liy the .same verdict. If, after the CHAP. HI.] AGAINST JUDGMENTS. 237 ment at law, upon the ground of set-off, especially when the set- off is of such a nature that it might have been pleaded at law, is one upon which there has been some conflict of judicial opinion. The affirmative of the proposition has been broadly asserted, and it has been held that such insolvency affords sufficient reason for enjoining the judgment, although the set- oft' was of such a character that it might have been urged in defense of the suit at law.-^ And where the judgment cred- itor is indebted to the judgment debtor largely in excess of the judgment which he has obtained against him, and refuses to allow his judgment to be set off against such indebted- ness, it has been held proper to enjoin the judgment, upon the ground that its enforcement under such circumstances would be unconscientious and a violation of moral duty.22 Upon the other hand, it has been held that insolvency of the judgment creditor will not, alone, warrant an injunction against proceedings under a judgment on account of a set-off which might have been urged in defense of the original ac- tion. -•'' Disregarding the unsettled condition of the authorities upon this point, the true doctrine, upon principle, would seem to be that while insolvency of itself rarely, if ever, justifies the granting of an injunction in any case, it is j^et an important factor to be considered in this class of cases, and may with other grounds of equitable relief justify the interposition of the extraordinary process of injunction. §244. Set-off reduced to judgment ground for injunction; equity considers real parties in interest. In those cases where -1 Levy i: Steinbach, 43 Md., 212; was urged as a defense to the ac- Jarrett v. Goodnow, 39 West Va., tion at law. 602, 20 S. E., 575, 32 L. R. A., 321; ^•■! Rives r. Rives, 7 Rich. Eq., dictum in Twigg r. Hopkins, 85 353; Sayre's Adm'r r. Harpold, 33 Md., 301, 37 Atl., 24. See Lindsay West Va., 553, 11 S. E., 16; Zinn v. r. Jackson, 2 Paige, 581. Dawson, 47 West Va., 45, 34 S. E,. 22 Payne v. Loudon, 1 Bibb, 518. 784, 81 Am. St. Rep., 772. But see, But it does not appear from the contra. Jarrett v. Goodnow, 39 West case reported whether the set-off Va., 602, 20 S. E., 575, 32 L. R. A., 321. 238 INJUNCTIONS. [CIIAP. III. the set-off which is urged as the foundation for relief by in- junction has been reduced to judgment stronger ground is afforded for the interference sought, and in such cas.s it is regarded as proper to grant the injunction. ^^ And where a judgment debtor, himself having an unsatisfied judgment against his creditor, files a bill to set off the one judgment against the other, alleging that his judgment creditor is in- solvent and that he will be remediless if the judgment is per- mitted to be enforced against him, and praying an injunction to prevent such enforcement and a decree of set-off, the bill is not demurrable for want of equity.-^ And since the jurisdic- tion exercised by courts of equity over matters of set-off is somewhat broader than that of courts of law, equity may in cases of the nature under discussion look beyond the nominal to the real parties in interest and may give relief accordingly. It will not, therefore, permit a cestui que trust who is in- solvent to enforce and collect through his trustee a judgment against one who himself holds a valid judgment against the cestui que trust which he is powerless to collect if the set- off be denied, and such attempted collection will be enjoined in a suit to off-set the one judgment against the other.-^ In- dependently, however, of circumstances of the nature above dis- closed, equity will not ordinarily enjoin the enforcement of a judgment upon a bill seeking to off-set certain judgments against each other when the judgments are not between the same parties.^'^ '^i Williams v. Davies, 2 Sim., '-'o Hobbs v. Duff, 23 Cal., 596. 461. See S. C, 43 Cal., 485. 25 Tommy v. Ellis, 41 Ga., 260. 27 Boley v. Griswold, 2 Mont., 447. CHAP. III.] AGAINST JUDGMENTS. 239 IX. Judgments as Affecting Title § 245. Judicial sales not enjoined for irregularity in proceedings. 246. Sale of property on execution against a third person. 247. Exception to the general rule. 247a. No injunction upon grounds available at law. 248. Equity will interfere to prevent a cloud upon title. 249. But not if title is good upon its face. 250. Failure of title a ground of injunction against judgment for purchase money. 251. Mere apprehensions of possible failure not sufficient. 252. Fraud and improper conduct of judgment creditor. 253. Writs of restitution and possession. 254. Judgment in another county; ejectment by mortgagee. 255. Prior lien; growing crops. 256. Surety in replevin bond; purchaser of surety's land. 257. Of parties. 258. When injunction retained to hearing; garnishees under attach- ment proceedings. 259. Excessive levy; time of sale unpropitious. 260. Judgment for possession. 261. Sale under fraudulent judgments enjoined; inaccurate descrip- tion no ground for injunction. 262. Buildings erected by debtor on creditor's land; mortagee of farming utensils and crops. 263. When judgment for purchase money enjoined. 264. Voluntary assignment; sale of debtor's real estate not enjoined. 264a. Sale under execution from foreign court. § 245. Judicial sales not enjoined for irregularity in proceed- ings. The aid of equity is not infrequently sought for the purpose of enjoining proceedings under judgments at law against the real estate of the judgment debtor. With reference to such cases, it is to be remarked, in the first instance, that a sale of real estate under legal process will not be restrained on account of defects and irregularities in the proceedings by which judgment was obtained, but some actual injury or ap- prehension of injury must be shown^ Nor will equity inter- pose to prevent the enforcement of judgments rendered against 1 Morgan v. Whiteside's Curator, 14 La., 277; Ewing v. St. Louis, 5 Wal., 413. 240 INJUNCTIONS. [CIIAI'. III. complainant for the amount of alleged benefit to his property by the opening of certain streets, because of irregularities in the proceedings, the remedy being at law, and equity having no disposition to restrain the proceedings of inferior tribunals of special jurisdiction. - § 246. Sale of property on execution against a third person. Upon the general principle that courts of equity will not en- tertain jurisdiction where ample remedy exists at law, an in- junction will not be allowed against a sale of property levied upon in satisfaction of an execution against a person other than the owner of the property .^ And a judgment debtor can not enjoin the creditor from levying his execution upon real estate belonging to a third person, who is not a party to the suit and who does not himself seek for the relief, there being ample remedy at law for any injury which he may sustain.* A dis- tinction, however, is taken between the case where complain- ants are owners of the legal and where they are owners of the equitable title to the property about to be sold; since in the case of legal ownership the remedy at law is sufficient, but where the title is merely equitable, courts of law are pow- 2 Ewing r. St. Louis, 5 Wal., 413. trine." See also Mayor r. Mese- Mr. Justice Field, delivering the role, 26 Wend., 132, reversing S. opinion of the court, says: "With C, 8 Paige, . 198; Heywood v. the proceedings and determina- Buffalo, 4 Kearn., 534. tions of inferior boards or tribu- ^ Freeman v. Elmendorf, 3 Halst. nals of special jurisdiction, courts Ch., 475, affirmed on appeal, lb., of equity will not interfere unless 655; Watkins r. Logan, 3 Monr., it should become necessary to pre- 21; Bouldin v. Alexander, 7 Monr., vent a multiplicity of suits or ir- 425; Coughron r. Swift, 18 111., reparable injury, or unless the 414; Henderson r. Morrill, 12 Tex., ])roceeding sought to be annulled 1; Carlin v. Hudson, lb., 202; Hall or corrected is valid upon its face, v. Davis, 5 J. J. Marsh., 290. But and the alleged invalidity consists see, contra, Brummel r. Hurt, 3 J. in matters to be estabished by ex- J. Marsh., 709; Downing r. Mann, trinsic evidence. In other cases. 43 Ala., 266; Bach r. Goodrich, 9 the review and correction of the Rob. (La.), 391; Scobey r. Walker, proceedings must be obtained by 114 Ind., 254, 15 N. E., 674. the writ of certiorari. This is the 'Tompkins v. Tremlin, 49 Ga., general and well established doc- 460. CHAP. III. I AGAIXST JUDCM KNTS. 241 erless to alt'ord the necessary i-elict', and ('(|uit\- will entertain jurisdiction to restrain llie sale.'' § 247. Exception to the general rule. Xotwitlistanding' the general rule as above laid down, it lias been held that the grantor of real estate with covenants of warranty has such an interest in restraining a sale of the land under a judgment against a former owner, alleged to have been paid, as to make him a proper party to apply for an injunction.'' But the pur- chaser of lands can not restrain their sale under a judgment obtained by fraud against his grantor, without showing af- firmatively that he will be injured thereby.'' § 247 a. No injunction upon grounds available at law. In accordance with the general principle that equity Avill not re- lieve where there is ample redress at law, an injunction will not be granted to restrain the enforcement of a judgment directing the sale of real estate, where the relief is sought upon grounds which might have been urged as a defense to the pro- ceeding in which the judgment was rendered.'^ § 248. Equity will interfere to prevent a cloud upon title. Courts of equity frequently enjoin proceedings under judg- ments for the prevention of a cloud upon title, and this would seem to follow, by analogy, from the "well settled and recog- nized jurisdiction of equity to remove clouds upon title. Since, if the court may, for the purpose of preventing litigation and expense, entertain jurisdiction for the removal of a cloud upon title, it is difficult to perceive any substantial reason why the same jurisdiction may not be exercised to prevent such a cloud. And it may, therefore, be laid down as a general rule that a sale of real estate under execution, which will not, at law, confer any title on the purchaser, and whose only effect will be to east a cloud upon the title of a bona fide purchaser, •^' Orr ('. Pickett, 3 J. J. Marsh., f Riicker v. Langford, 138 Cal., 269. 611, 71 Pac. 1123; Alexander v. ' Id. Marsh., 80. CHAP. III.] AGAINST JUDGMENTS. 247 § 258. When injunction retained to hearing ; g-arnishees under attachment proceedings. When an injunction is sought to restrain the sale of real estate under execution, which it is claimed was released by a written agreement from the lien of the judgment, but the terms of the agree- ment are doubtful and the affidavits upon the motion for the injunction are conflicting, it is proper to retain the injunc- tion to the hearing, especially when the proceedings in equity will have the result of quieting the title and preventing a multiplicity of suits by one final decree.-"'^ Where, however, an attaching creditor releases the land attached from the lien of his judgment upon the payment of a given sum of money by strangers to the action, such payment being made not as a payment upon the judgment, but to procure the release of the land from such lien, garnishees under the attachment pro- ceeding are not thereby entitled to enjoin the enforcement of executions against them as garnishees.^^ §259. Excessive levy; time of sale unpropitious. A judg- ment debtor is not entitled to an injunction to prevent the sale of his real estate under execution because the sheriff has levied upon property whose value is largely in excess of the amount of the judgment, and because the debtor has other prop- erty amply sufficient to satisfy the execution, when it is not shown that the debtor pointed out such other property to the sheriff, and when the bill itself fails to point out such other property.^'^'' Nor does the fact that the time of sale is un- propitious and that financial affairs are stringent constitute sufficient ground for equitable interference by injunction against a sale of real estate under a judgment at law.-**^ § 260. Judgment for possession. A defendant in an action of forcible entry and detainer, against whom judgment is ren- 37 Kendall r. Dow, 46 Ga., 607. See also Muller r. Bayly, 21 Grat., 38 Hlller r. Cotte- 54 Miss., 551. 521; Caperton v. Landcraft, 3 West 39 Smith ;■: Frederick, 32 Tex., Va., 540; Miller v. Parker, 73 256. N. C, 58. 4oPoullain r. English, 57 Ga., 492. 248 iNJuxcTioxs. [chap. hi. dered, can not have an injunction to prevent the issuing and execution of an order of removal, merely upon the ground that he proposes to appeal from the judgment within the time fixed by law, when he has not already appealed. ^^ And where a judgment for the delivery of possession of real property has already been enforced and the successful party is in posses- sion thereunder, it is too late to enjoin the enforcement of the judgment; and in such case equity will not interfere by in- junction //( limine to restore possession of the property. ^- § 261. Sale under fraudulent judgments enjoined ; inaccur- ate description no ground for injunction. The aid of an injunc- tion may be properly invoked to prevent a sale of real prop- erty under judgments which have been fraudulently recovered. And a purchaser at a former sale under several executions may enjoin a sale of the same lands under an execution issued upon a fraudulent judgment, even though one of the execu- tions under which complainant claims Avas issued upon such fraudulent judgment. Under such circumstances it is regarded as proper to enjoin the attempt of the creditor having the fraudulent judgment to sell the land a second time, such relief being essential for the protection of the interest acquired by the purchaser at the former- sale.'*^ But a sale of real estate under execution will not be enjoined merely because of inaccur- acies and insufficiencies in the description of the premises to be sold, since if the description is insufficient there can be no valid sale and plaintiff can not be injured. ^^ §262. Buildings erected by debtor on creditor's land; mortgagee of farming utensils and crops. Where a judgment debtor lijis ci-ccted ])uildings upon llic land of his judgment " Curd /•. Farrar, 17 Iowa, 504. Land Co. r. Turman, 53 Tex., 619. As to the right of a third person i- Kamm r. Stark, 1 Sawy., 547. purchasing the legal title to re- *■' Ragland v. Cantrell, 49 Ala., strain the enforcement of a judg- 294. ment in forcible entry and detainer " Henderson r. Hoy, 26 La. An., by an insolvent landlord against a 156; Deville /•. Hayes, 23 La. An., tenant of the premises, see Texas 550. CHAP. III.] AGAINST JUDGMENTS. 249 ci'editors, he can not enjoin the creditors from selling such buildings under execution. ^^ But the owner of farming lands, Avho has a mortgage upon the stock and utensils of his tenant, as well as upon the interest of the tenant in the crops being raised thereon, has been allowed an injunction to prevent a sale under execution against the tenant of his equity in the property thus mortgaged, the relief being extended upon the ground of irreparable injury and the difficulty of estimating the damages at law which would result from permitting such sale.*6 § 263. When judgment for purchase money enjoined. It is also held, Avhere a creditor is seeking to enforce his judg- ment by a sale of land subject to the lien of the judgment, but which has been conveyed by the debtor to a purchaser who is in possession, not having paid all the purchase money, and the creditor also obtains judgment in garnishee proceedings against the purchaser for the unpaid purchase money, that it is inequitable to permit him to enforce both judgments at one and the same time. And a court of equity may, therefore, prevent by injunction the enforcement of the judgment in the garnishee proceedings.^''' ^264. Voluntary assignment; sale of debtor's real estate not enjoined. Under a statute regulating the subject of volun- tary assignments for the benefit of creditors, and which re- quires the recording of the assignment in order to vest the title to the property in the assignee, a sale of the debtor's real estate under judgments which are a lien thereon, and Avhich are recovered after the execution of the assignment, but before it is recorded, will not be enjoined. ^"^ § 264 a. Sale under execution from foreign court. Inas- much as the process of a court can have no extra-territorial *■' Augustin V. Dours, 26 La. An., warrant an injunction to restrain 261. the enforcement of a judgment •»« Martin r. Jewell, 37 Md., .530. against a garnishee, Freeman v. •»■ Gunn V. Thornton, 49 Ga., 380. Miller, 53 Tex. 970 ( -. And see, as to facts which will ^^ New r. Reissner, 56 Ind., 118. 250 INJUNCTIONS. [chap. III. effect, where an execution is issued from a court beyond the jurisdiction where it is sought to be enforced and has been levied, by an officer of the court in which the judgment was rendered, upon real estate of the judgment debtor located beyond the jurisdiction of that court, the act of the officer is void and the sale of the land under such execution will be enjoined.^^ 49 Needles v. Frost, 2 Okla., 19, 35 Pac, 574. CHAP. III.] AGAINST JUDGMENTS. 251 X. Court in which the Judgment was Rendered. § 265. Cases of concurrent jurisdiction; of inferior and superior courts. 266. Non-interference between state and federal courts. 267. State court may enjoin interference with judgment of federal court. 268. Federal courts decline to enjoin judgments of state courts. 268a. Exception to rule. 269. When enforcement of judgment of another state enjoined. 270. Decree in equity, doctrine as to enjoining. 271. Injunction has no extra-territorial effect. 272. Injunction not allowed against proceedings in attachment for contempt, nor against mandamus proceedings. §265. Cases of concurrent jurisdiction; of inferior and superior courts. Questions of importance frequently arise touching the relative jurisdiction and powers of the court in which the judgment is obtained and of that in which it is sought to be enjoined. In so far as courts of law and equity have concurrent jurisdiction over the same matters, a party seeking relief may make his election in which tribunal he will bring his action.^ And, in this country, where law and equity are usually administered by the same court, as a gen- eral rule one court will not interfere with or enjoin the judg- ment or process of another court of concurrent jurisdiction which is competent to grant the necessary relief; since the proceedings should, in such cases, be instituted in the court which renders the judgment or decree and which has con- trol over its execution, when that court has power to grant the desired relief.- Nor, in such case, does the circumstance 1 Conway v. Ellison, 14 Ark., 360. Stein v. Benedict, 83 Wis., 603, 53 sPlatto V. Deuster, 22 Wis., 482; N. W., 891; Grant v. Quick, 5 Endter v. Lennon, 46 Wis., 299, Sandf., 612; Anthony v. Dunlap, 8 50 N. W., 194; Orient Insurance Cal., 26; Rickett v. Johnson, lb., Co. V. Sloan, 70 Wis., 611, 36 N. 35; Chipman v. Hibbard, lb., 268; W.. 388; Cardinal v. Eau Claire, Gorham v. Toomey, 9 Cal., 77; Uhl- L. Co., 75 Wis., 404, 44 N. W., 761; f elder v. Levy, lb., 607; Crowley 252 INJUNCTIONS. [chap. III. that the judge of the court in which the judgment which it is sought to enjoin was rendered is disqualified to sit in the case constitute an exception to the rule, and the injunc- tion should still be sought in the court in which the jugdment was rendered, and the case should proceed as any other case in which the judge is disqualified to sit.^ So an inferior court will not, in general, enjoin the proceedings of its superior court, since this would be to make the inferior paramount to the superior tribunal.* If, however, the mandate or order of the superior court has been improperly or surreptiously ob- tained, its enforcement may be enjoined by an inferior tribunal Avhenever the judgment or decrees of an inferior court would be enjoined upon similar grounds.^ And a court of equity, though not a court of last resort, may restrain the execution of a decree of su6h court where it satisfactorily appears that the decree has been satisfied, and where, notwithstanding such satisfaction, the person in Avhose favor the decree was obtained is proceeding to enforce it by execution.*^ § 266. Non-interference between state and federal courts. The principles which govern courts of equity powers, either V. Davis, 37 Cal. 268; Flaherty v. joined, the suit for the injunctioa Kelly 51 Cal. 145; Judson r. For- must be brought in the county and ter, lb., 562; Grant r. Moore, 88 N. court in which such action is pend- C, 77; Scott /?. Runner, 146 Ind.. ing, or in which the judgment or 12, 44 N. E., 755, 58 Am. St. Rep., order was obtained. Anderson v. 345; Beck v. Fransham, 21 Mont, Hall, 48 Iowa, 346. And it is held 117, 53 Pac, 96. See also Mason v. in Kentucky that the section of Chambers, 4 J. J. Marsh., 402. the Code which provides that, "no :' Flaherty r. Kelly, 51 Cal., 145. injunction shall be granted to stay * Roshell r. Maxwell, Hemp., 25; proceedings on a judgment or final McCrimmin r. Cooper, 37 Tex., order of a court in any other court 423. than that in which the judgment •" Bank of Kentucky /■. Hancock, or order was entered or made," ap- G Dana, 284. plies as well to justice courts as to '1 .McClellan r. Crook, 4 Md. Ch., courts of record, and that a jus- 398. Under the provisions of the tice's judgment must be enjoined Code of Iowa, -when proceedings in in the justice court, although by a civil action or upon a judgment reason of costs and accrued inter- or final order are sought to Ik^ on- est the amount involved exceeds CllAT. 111. I A CiAlXST JUDGMENTS. 253 of the various states or of the United States, in granting relief l)y injunction as against proceedings pending in the courts of the other sovereignty, state or national, have already been considered somewhat in detail in a previous chapter of this treatise.'^ Substantially the same principles are applicable to cases where it is sought in the one tribunal, state or national, to enjoin proceedings under final judgments of the other, as were there shown to govern in cases where the relief is sought to restrain proceedings in an action at law before it has reached the stage of a final judgment, and it is neither necessary nor desirable to repeat the general discussion per- taining to that branch of the subject. As a general rule the state courts refuse to trespass upon the clearly established jurisdiction of the United States courts, and refuse to grant injunctions against the enforcement of judgments recovered in those courts, preferring that whatever grounds of equita- ble relief may exist against such judgments should be urged in the United States courts themselves.^ Especially will the state courts refuse to interfere in cases where jurisdiction is expressly conferred by statute upon the federal courts, as in the case of a judgment for an infringement of letters pat- ent.** And as between the state and federal courts in cases in which their jurisdiction is co-ordinate over the same subject- matter, that court which first obtains jurisdiction will be left to retain it to the end, and its process will not be interfered with by injunction from the other tribunal. A state court will not, therefore, under such circumstances, enjoin a levy under execution from a court of the United States upon property the limit of the justice's jurisdic- Brooks c. Montgomery, 23 La. An., tion. Davis v. Davis, 10 Bush, 274. 450; Chapin v. James, 11 R. I., 86; " See chapter II, ante, § 108 ei Prugh v. Portsmouth Savings seq. Bank, 48 Neb., 414, 67 N. W.. 309. sMcKim r. Voorhies, 7 Cranch, 58 Am. St. Rep., 700; McCullough 279; Kendall v. Winsor, 6 R. I., r. Hicks, 63 S. C, 542, 41 S. E., 453; English r. Miller, 2 Rich. Eq., 761. 320; Logan ;•. Lucas, 59 111., 237: "Kendall v. Winsor, 6 R. I., 453. 254 INJUNCTIONS. [chap. III. claimed by a person other than the judgment debtor, but will leave the party aggrieved to seek his remedy in the forum in which the judgment was recovered.^ ^ Nor will a court of equitj^ powers of a state enjoin proceedings under a judgment recovered in a state court, upon the application and for the protection of a creditor who afterwards proceeds by garnish- ment against the same debtor in a court of the United States. In such a case the relief is refused upon the ground that, the state court having first acquired jurisdiction, its right to pro- ceed to judgment and execution can not be affected by sub- sequent proceedings instituted in the federal court.^^ And upon the principle that a court of equity, in enjoining legal proceedings, either before or after judgment, acts strictly in personam and not against the court or its process, an injunc- tion will not be granted by a state court to restrain a ma7i- damus suit instituted in the federal court for the purpose of compelling the county authorities . to levy and collect a tax for the payment of a judgment rendered against the county in such federal court, since the mandamus proceeding is ancillary to the judgment and is regarded as the process of the court by means of which the judgment is enforced.^^ § 267. State court may enjoin interference with judgment of federal court. While, as is thus shown, the state courts decline to interfere by injunction with proceedings under judg- ments of the federal courts in matters over which they have acquired jurisdiction, and while they also refuse to restrain proceedings for the enforcement of a judgment of a state court in aid of a proceeding afterward instituted in a fed- eral court, they are equally prompt to protect the jurisdic- tion of the federal court when it has fii-st attached, even, if need be, by the process of injunction. And where property is levied upon under an execution upon the judgment of a ")Chapin r. James, 11 R. I., 86; "Arthur r. Batte, 42 Tex., 159. Brooks r. Montgomery, 23 La. An., '^ McCullough r. Hicks, 63 S. C, 450. 542, 41 S. E., 761. CHAP. III.] AGAINST JUDGMENTS. 255 federal court, and a subsequent levy is made upon the same property under junior judgments recovered in a state court, and the premises are advertised for sale upon the same day under both levies, a state court may properly enjoin a sale under the levy from the state court, the property being pre- viously in the hands of the United States marshal under the process from the federal court.^^ § 268. Federal courts decline to enjoin judgments of state courts. The same principle of comity illustrated by the pre- ceding section is recognized by the federal courts, and they decline to interfere by injunction with proceedings under a judgment recovered in the state courts in matters over which their jurisdiction has first attached. Where, therefore, a sheriff is in possession of property levied upon under an execution from a state court which first obtained jurisdiction of the con- troversy, the federal courts are bound to respect such prior jurisdiction, and will decline to interfere therewith by injunc- tion.i'* Indeed, under the provisions of the act of Congress prohibiting the courts of the United States from granting injunctions to stay proceedings in any court of a state, except in cases where such interference may be authorized under bankruptcy laws, it is difficult to conceive of any other case where the federal courts may properly interfere by injunc- tion with proceedings under judgments recovered in the state courts.^ ^ Notwithstanding this absolute prohibition, however, • against interference on the part of the courts of the United States, it was formerly held that a federal court might enjoin the enforcement of an execution issued by a state court which had been levied upon property belonging to a third person not a party to the judgment. Such unauthorized levy, it was held, was in no sense a proceeding of the court from 13 Hall V. Boyd, 52 Ga., 456. 97 Fed., 136. The legislation prior 14 Ruggles V. Simonton, 3 Bis- to the revision may be found in sell, 325. an act of Congress approved 15 Revised Statutes U. S., §720; March 2, 1793, chap, xxii, sec. 5, 1 U. S. Comp. Stat. 1901, p. 581; 1 U. S. Statutes at Large, 334, 335. Laethe r. Thomas, 38 C. C. A., 75. 256 INJUNCTIONS. [chap. iir. Avhich the process issued, and did not, therefore, fall within the prohibition of the act of Congress.^ ^ And although the state had provided by statute a remedy for such grievance by action at law in its own courts, which equity alone could have afforded before the statute, the courts of the United States, it was held, would not thereby be deprived of their jurisdiction to afford relief in such a case.^' The later and, unquestionably, the better doctrine, however, of the federal courts is that they will not interfere by injunction to prevent a sale of one's property under execution against a third per- son, issued from a state court, but will leave the party com- plaining to seek his remedy in the state forum.^^ But a fed- eral court ma.v enjoin the enforcement of a judgment ren- dered by a state court when it acts for the purpose of pro- tecting its own prior acquired jurisdiction which would other- wise be defeated or impaired.^ '^ As regards the jurisdiction of the federal courts to restrain proceedings under their own judgments, the fact that the process of the court in the injunc- tion suit is served on defendant without the district in which the court is located does not oust it of jurisdiction and affords no ground for withholding the injunction.^" § 268 a. Exception to rule. A well established exception to the prohibition of § 720 is recognized in cases where a judg- ment has been procured in a state court through the fraud of the judgment creditor, or through inavoidable accident or mis- take, unaccompanied by any fault or negligence upon the part of the judgment debtor. Under such circumstances, while the federal court can not require the state court to vacate or set I" Cropper r. Coburn, 2 Curtis, t' Julian v. Central Trust Co., 4«5. 193 U. S., 93, 24 Sup. Ct. Rep., 399, '' Id. affirming S. C, 53 C. C. A., 438, "* Daly r. The Sheriff, 1 Woods, 115 Fed., 956. 175; American Association r. --• Greenlee v. McDowell, 4 Ired. 138. But see Douglass r. .loyner, Eq.. 481. 1 Baxter, 32. CHAP. HI. J AGAINST JUDGMENTS. 261 and upon the same grounds Avhicli would justify like relief against judgments at law/'^ And the rule as thus announced has been followed and applied in Oregon.^-* And while it is undoubtedly true that one chancellor can not enjoin the decrees of another for the purpose of reviewing or revers- ing them in a different court from that in which they were rendered, it is nevertheless competent for one court of equity to enjoin the collection of an execution from another upon the ground that it is being illegally enforced, having already been paid or satisfied.^^ So upon a bill of review to procure the reversal of a decree in equity, good cause being shown for reversing such decree, it is proper to grant an injunc- tion pendente lite, to prevent a levy and sale under the decree which it is sought to reverse upon the bill of review.^^ And judgments recovered at law upon notes given for the purchase money of estates, sold under a decree in chancery, may be enjoined in the court of chancery in which the original proceedings were had, good cause therefor being shown.-"''^ § 271. Injunction has no extra-territorial effect. As regards the effect of an interlocutory injunction which is obtained in one country to restrain the enforcement of a judgment there recovered, it is to be observed that it is not necessarily binding or conclusive upon the courts of another country when proceedings are afterward instituted there for the enforcement of the same judgment. Thus, it is held in Eng- land, that an interlocutory order of the Irish Court of Chan- a-' Montgomery r. Whitworth, 1 94 Va., 760, 27 S. B., 588, 64 Am. Tenn. Ch., 174. In Virginia it St. Rep., 777. would seem that a court of equity 34 McDonald r. Mackenzie, 24 may enjoin the enforcement of a Ore., 573, 14 Pac, 866. decree pro confesso based upon a ^■> Greenfield v. Hutton, 1 Baxter, false i-eturn of service of process, 216. when such return was procured at -ie Bennett r. Brown, 56 Ga., 216. the instigation of the complainant 37 Deaderick v. Smith, 6 Humph., in the suit in which the decree 138. was entered. Preston v. Kindrick, 262 INJUNCTIONS. [chap. III. eery, by which the enforcement of a judgment recovered in Ireland is enjoined, will be considered only as authority in England, and not as necessarily conclusive or binding upon the English Court of Chancery .^^ § 272. Injunction not allowed ag-ainst proceeding's in attach- ment for contempt, nor against mandamus proceedings. It is a well settled principle of equity jurisprudence that an injunction will never be granted for the purpose of restraining proceedings of a criminal or quasi criminal nature in a court having jurisdiction over such matters. A court of equity will not, therefore, enjoin a clerk of a court from issuing an attachment for the commitment of a person who has been adjudged guilty of a contempt .of court in disobeying a per- emptory writ of mandam^is. ^^ And an additional ground for refusing relief by injunction in such case is found in the fact that the granting of the writ against the officer of another court would necessarily lead to a conflict of jurisdiction, since it would be the duty of such other court to protect its own officer."**^ So where one has been committed and fined for a contempt of a court having competent jurisdiction and full power to inflict such punishment, a court of equity will not enjoin the execution of the order of attachment, when com- plainant admits that he had an opportunity of making his defense in the court by which he was attached.'*^ And it was early held by the English Court of Chancery that an injunc- tion would not lie to stay proceedings in mandamus. ^^ 38 Ball V. Storie, 1 Sim. & Stu., under examination in this court; 211. and that if they did, this court .-io Tyler v. Hamersley, 44 Conn., would break it, and protect any 419. that would proceed in contempt 40 Tyler v. Hamersley, 44 Conn., of it." 419. And see Holderstaffe v. Saun- •»! Sanders r. Metcalf, 1 Tenn. ders, 6 Mod., 16, where Lord Holt, Ch., 419. Chief Justice of the Queen's •»- Montague v. Dudman, 2 Ves. Bench, is reported to have said: Sr., 396. The bill was filed to pro- "Surely chancery will not grant cure an injunction against pro- an injunction in a criminal matter ceedings in mandamus. Upon de- CHAP. III.] AGAINST JUDGMENTS. 263 murrer to the bill Lord Hard- wicke held, p. 396: "This court has no jurisdiction to grant an in- junction to stay proceedings on a mandamus; nor to an indictment; nor to any information; nor to a writ of prohibition that I know of. The reason is that the mandamus is not a writ remedial, but man- datory. It is vested in the King's superior court of common law to compel inferior courts to do some- thing relative to the public. That court has a great latitude and dis- cretion in cases of that kind; can judge of all the circumstances; and is not bound by such strict rules as in cases of private rights. That, therefore, must be given up as any color for such an injunc- tion." 264 INJUNCTIONS. [chap. III. XL Injunctions against Awards. § 273. Judgment on award rarely enjoined. 274. The doctrine illustrated. 275. Laches will bar relief against judgment on award. 276. Injunction allowed when award based on false testimony. § 273. Judgment on award rarely enjoined. An injunction will rarely be allowed against the enforcement of a judgment made upon an award of arbitrators, since objections to the regularity of the proceedings can and usually should be made at law\ And in the absence of any allegation of fraud, acci- dent, or mistake, the relief with be withheld.^ Even where it is alleged that the aw^ard was obtained by fraud and corrup- tion, an injunction will not allowed w^here the grounds relied upon could have been urged as a defense to the suit at law brought upon the award.- Where, however, the fraudulent and improper conduct of the arbitrators can only be made to appear by evidence dehors the award, and which can not be pleaded to the action at law, the rule is otherwise. And where, after the hearing before the arbitrators w'as closed, they re- ceived statements from one of the parties, unknown to the other, and containing different items relative to his claim, an injunction was granted.^ § 274. The doctrine illustrated. Allegations that arbitra- tors exceeded the scope of their authority, and that complain- ant had not sufficient notice of the time and place of their meeting, will not warrant an injunction against the judgment when such facts might have been urged in defense of the action at law upon the award.-* And where the invalidity relied upon as the foundation for the relief appears on the face of the proceedings, no injunction will be allowed.-'* So equity 1 .Tones v. Frosh, 6 Tex., 202; •' Sisk v. Garey, 27 Md., 401. Emerson r. Udall, 13 Vt, 477. ■» Emerson v. Udall, 13 Vt., 477. ■•; Snediker v. Pearson, 2 Barb. •'' Meloy v. Dougherty, 16 Wis., Ch. R.. 107. 269. CHAI'. III.] AGAIXST JUDGME.VTS. 265 will not disturb by injunction an award in favor of a private citizen against a town, when it does not appear that any great or irreparable injury is done the town, and when the person in whose favor the award was made would be subjected to great hardship and injustice should the injunction be granted.® § 275. Laches vdll bar relief a-gainst judgment on award. One Avho seeks relief in equity against an award must show due diligence in making his application and must come into court with clean hands. And when complainant has been guilty of laches in the assertion of his right, or when his own conduct has not been free from blame, he will be refused relief.''' Nor will a judgment upon an award be enjoined because of an alleged mistake or misapprehension upon the part of complainant or his attorney as to the matters considered by the arbitrators, when it appears that such misapprehension was not caused by any misrepresentation or fraud of the oppos- ing party, and when there is no evidence of fraud in obtain- ing the judgment.^ § 276. Injunction allowed when award based on false tes- timony. It is thus apparent that courts of equity interfere with great reluctance with the awards of arbitrators, or with judgments rendered upon such awards, such reluctance being attributable to the fact that the law favors an adjustment of controversies by arbitration, and the courts will not, in such cases, interfere in behalf of one whose defeat is attribu- table to his own negligence. Where, however, an award has been obtained upon false testimony, misleading and deceiving the arbitrators, sufficient ground is presented for enjoining proceedings for the enforcement of the award, such a case being plainly distinguishable from those already discussed in which the relief has been refused.^ 8 Hine v. Stephens, 33 Conn., 497. '^ Gibson's Adm'r r. Armstrong. ' Jones r. Bennett, 1 Bro. P. C, 32 Ark., 438. 528; Smith v. Whitmore, 1 H. & « Craft r. Thompson, 51 N. H., M., 576. 536. 266 INJUNCTIONS. [chap. III. XII. Judgments by Default and Confession. § 277. Judgment by default rarely enjoined. 278. Question dependent upon diligence in defending; illustrations. 279. Judgments by confession rarely enjoined; illustrations. 280. Judgments fraudulently confessed may be enjoined. 281. Judgment on note barred by statute of limitations in state where given. § 277. Judgment by default rarely enjoined. In the absence of fraud or deception an injunction will rarely be allowed against a judgment which complainant has suffered to go against him by default.^ And where one has negligently per- mitted judgment to go against him by default, such negligence is sufficient to prevent him from obtaining the aid of an injunction against the judgment.- Indeed, in a case of default, a court of equity may refuse to consider the merits of the case any further than the question of complainant's negligence in asserting his rights at law, and no sufficient excuse appearing for his having neglected to defend at law, the injunction will be refused.^ Nor will the proceedings be enjoined merely because plaintiff obtained more relief than he was entitled to by his action, there being no misrepresentation or decep- tion by which defendants were in any way misled.* And in the absence of fraud or collusion, an injunction will not be continued against a judgment at law by default where no real defense could have been made to the action, either at law or in equity.^ And a court of equity will not ordinarily enjoin the enforcement of a judgment taken by default because of a defense of which the defendant might have availed him- 1 Murdock v. De Vries, 37 Cal.. ■'■ Faulkner r. Campbell, Morris 527; Sohier v. Merril, 3 Woodb. & (Iowa), 148. M., 179. 'Murdock r. De Vries, 37 Cal., - Faulkner r. Campbell, Morris 527. (Iowa), 148; Mason v. Richards, 3 "'Sohier r. Merril, 3 Woodb. & Gilm., 25. M., 179. CHAP. III.] AGAINST JUDGMENTS. 267 self in the action at law." So when a judgment has been recovered against a married woman in a case where her coverture would have been a good defense to the action, the judgment being only voidable and not void, it will not be restrained at the suit of the wife, no fraud being shown.'^ So equity will not enjoin a judgment rendered by default where the complainant has a remedy, by motion in the court where the judgment was rendered, to set it aside.^ Nor will relief be granted against a default judgment upon the ground of a set-off where it could have been urged as a defense to the suit in which the judgment was given.'^ §278. Question dependent upon diligence in defending; illustrations. It is thus apparent that the question of granting relief by injunction against judgments which have been ren- dered by default is largely dependent upon the question whether the judgment debtor seeking the relief has or has not used due diligenge in availing himself of his means of defense to the action at law. And if the default is not oc- casioned by any omission or want of diligence upon his own part, upon showing a meritorious defense to the action, he is entitled to the aid of an injunction. Thus, where com- plainant shows by his bill a meritorious defense to the action at law ; that he was never served with process in that action and never appeared therein or authorized any one to appear for him ; that the return of service of process is untrue, and that he had no knowledge or notice of the action, a judgment against him by default should be enjoined.^*' So where a defendant in an ejectment suit, relying upon plaintiff's assur- eProtheroev. Forman, 2 Swanst, Pac, 885; Brown r. Chapman, 90 227; Langley v. Ashe, 38 Neb., 53, Va., 174, 17 S. E., 855. 56 N. W., 720. 9 Twigg v. Hopkins, 85 Md., 301, 7 McCurdy v. Baughman, 43 37 Atl., 24. Ohio St., 78, 1 N. E., 93. I'l Weaver v. Poyer, 70 111., 567. 8 Kitzman v. Minn. T. Mfg. Co., See also Owens v. Ranstead, 22 10 N. Dak., 26, 84 N. W., 585; 111., 161. Crist V. Cosby, 11 Okla., 635, 69 f 268 INJUNCTIONS. [chap. III. ance that he will take no personal judgment against him, fails to enter his appearance, a personal judgment afterwards entered by default contrary to the agreementwillbeenjoined.il Upon the other hand, if it is apparent that the judgment by default w^as the result of negligence and inattention upon the part of defendant in the action, after due service of process upon him, he will be denied relief by injunction in conformity with the elementary principles which have been fully discussed in the preceding pages. For example, when a prior suit against defendant has been dismissed, and a subsequent suit begun against him for the same cause of action, in which he is duly served with process and judg- ment is had against him by default, it is not sufficient ground for enjoining the judgment to allege that he had no notice of the dismissal of the former suit and believed it to be still pending, or that counsel had been employed to defend that suit, and that he did not know the nature of the sum- mons and complaint served on him in the second suit.^- And it has been held that relief will be denied against a default judgment where the complainant fails to allege and prove that the judgment Avas in nowise attributable to his own fault.^-^ And where it is sought to enjoin such a judgment, much clearer and stronger proof of diligence and freedom from fault is require'd than upon a motion for a new trial in the court where the judgment was rendered.^* §279. Judgments by confession rarely enjoined; illustra- tions. With I'egard to judgments l)y confession, as in the case of judgments by default, a court of equity will not ordin- arily interfere in the absence of fraud or collusion. And where defendant has voluntarily and freely confessed judg- ment, without fraud or deception by the opposite party, he is 11 Brake /■. Payne, 137 Ind., 479, n Village of Celina v. Eastport 37 N. E., 140. Savings Bank, 15 C. C. A., 495, 68 1"-: Bibb n. Hitchcock, 49 Ala., 468. Fed., 401. • •■' Meinert d. Harder, 39 Ore., 609, 65 Pac, 1056. CHAP. III.] AGAINST JUDGMENTS. 269 thereby estopped from enjoining the proceedings on the ground of an equity existing anterior to his confession of judgment.^^ So where a judgment debtor obtains an injunction against a judgment confessed by him, upon the ground that he had given a note to the creditor in novation of the judgment, but it is shown upon the hearing that such note was given before the judgment was confessed, and was tendered back before execution issued, the injunction should be dissolved.^ "^ And a debtor who has confessed judgment in favor of his creditor for a smaller amount than that claimed, the confession being made by way of compromise, can not enjoin the enforcement of the judgment, in the absence of fraud by the adverse party, and when it is not showTi that he was prevented from defend- ing by reason of accident, mistake, or surprise as to material facts necessary for his defense.^''' So a debtor who has con- fessed judgment for a just indebtedness can not restrain its enforcement upon the ground that the cause of action was barred by the statute of limitations, no fraud having been practised upon him by the judgment creditor.^ ^ Nor will a judgment entered by consent of defendant's attorneys, upon sufficient authority from defendant, be enjoined when no de- fense is shown to the cause of action.^^ Nor will a judgment by confession against a corporation be enjoined upon the ground that the particular corporate officer had no power to execute the warrant of attorney, where there is no showing that the judgment is inequitable or unjust and that it is not based upon an actual indebtedness due the plaintiff.-^ So it is held that a judgment confessed upon a warrant of attorney ^■- Moore v. Barclay, 23 Ala., 739. i' Morehead v. De Ford, 6 See also Schroeder v. Fromme, 31 West Va., 316. Tex., 602. And see as to the right is Harner r. Price, 17 West Va., to enjoin a judgment by confes- 523. sion on the ground of usury. Hill i'-' King r. Watts, 23 La. An., 563. V. Reifsnider, 46 Md., 555. 20 Burch v. West, 134 111., 258, 25 ic Sallis V. McLearn, 23 La. An., N. E., 658. 192. 270 INJUNCTIONS. [chap. III. to secure a contingent liability, not being void as between the parties, its execution will not be restrained because of a defect in the verification of the pleadings.^i And when the common council of a city, acting in good faith, have directed the con- fession of a judgment in a suit against the city upon a demand the larger portion of which is justly due, an injunction will not be allowed in behalf of a taxpayer of the city to restrain the collection of the judgment. Even if equity has jurisdic- tion to restrain the action of a municipal corporation in such a case, a clear and substantial injury to the public interest must be showm before the injunction will be allowed.-- § 280. Judgments fraudulently confessed may be enjoined. Notwithstanding the disinclination which is thus shown by the courts toward interfering by injunction with judgments entered by confession, the rule is well established that a judg- ment confessed through fraud or collusion may be enjoined in equity, under its ancient and well defined jurisdiction upon the ground of fraud. ^^ Thus, where some of the trustees of an incorporated religious society have, without authority, executed a fraudulent judgment note in the corporate name, by collusion with the payee, for the evident purpose of incum- bering the church property and subjecting it to a sale, and thereby divesting the title of the corporation, equity may enjoin the enforcement of the judgment entered by confes- sion upon the note, the payees in the note being constructively, if not actively, parties to the fraud.^^ And where an injunction was granted to restrain a sale of real estate under execution, upon a bill charging defendant with having confessed the judg- ment eollusively in order to prevent complainant from real- izing his prior judgment out of the real estate, the bill was held good upon demurrer.^^ But a creditor who obtains an 21 Reiley v. Johnston, 22 Wis., Young, 2 Halst. Ch., 453. 279. -^ United Brethren Church v. •■i^ Chaffee r. Granger, 6 Mich., 51. Van Dusen, 37 Wis., 54. -•:! United Brethren Church v. ■■^■' Oakley v. Young, 2 Halst. Ch., Van nnsen, 37 Wis., 54; Oakley n 453. CHAP. III.] AGAINST JUDGMENTS. 271 injunction upon the ground of fraud against a judgment con- fessed by his debtor, and who then proceeds with an action at law against the debtor, obtains judgment and issues execu- tion, will be put to his election whether to stay execution during the continuance of the injunction, or to consent to a dissolution. And if he refuses so to elect, the court will dis- solve the injunction, since the effect of continuing it under such circumstances would be to give such creditor an advan- tage over rival creditors, whom he has in the meantime delayed by his injunction.-^ § 281. Judgment on note barred by statute of limitations in state where given. In Wisconsin, it is held to be within the power of a court of equity, in an action upon a judgment re- covered by confession upon a cognovit in another state, to re-examine the cause upon its merits, and to perpetually enjoin the plaintiff from the collection of his entire demand, if found to be not legally due. And when a judgment note, with the usual warrant of attorney to confess judgment, was given in Wisconsin, all parties to the transaction residing there, and after the note was barred by the statute of limitations in Wisconsin it was sent to Illinois and judgment was entered thereon by confession, and suit was then brought on a trans- cript of the judgment in Wisconsin, a perpetual injunction was granted against the collection or enforcement of the judg- ment.-''' 26 Livingston v. Kane, 3 Johns, set aside the judgment or granted Ch., 224. a stay of proceedings; and also 27 Brown v. Parker, 28 Wis., 21. upon the fact that they construe The opinion of the court is based the Wisconsin statute of limita- upon the presumption that the tions as not merely affecting the court of Illinois, if its attention remedy, but as absolutely extin- had been called to the Wisconsin guishing the right of action, statute of limitations, would have CHAPTER IV. OF INJUNCTIONS IN AID OF PROCEEDINGS IN BANKRUPTCY. § 282. Proceedings in state courts enjoined under bankrupt law of 1867. 283. Bankruptcy proceedings equitable in their nature. 284. Twenty-first section of the act of 1867. 285. Limitations upon the jurisdiction. 286. When Injunction continued to hearing. 287. Judgment creditors in good faith not affected. 288. Sale of homestead under execution not enjoined. 289. Effect of creditor's knowledge of debtor's insolvency. 290. When injunction against judgment refused; when allowed in behalf of assignee. 291. Rights of assignee of bankrupt as against fraudulent assign- ment. 292. Receivers in state courts; effect of prior jurisdiction. 292a. Jurisdiction under act of 1898. 293. Contempt of bankrupt court. 294. When relief allowed as against mortagees of bankrupt. 295. Injunction against sale of vessel. 296. Property acquired by bankrupt after adjudication; effect of discharge; failure to plead discharge. 297. Effect of discharge under state insolvent laws. 298. Sale by United States marshal of property of third person not protected. 299. Suits against bankrupt pending composition, when enjoined. 300. State court will not enjoin person from taking benefit of bank- rupt law. 301. Effect of false verification of petition for injunction. 302. Pleadings informal; notice of motion for injunction. 303. When injunction dissolved by final discharge. 303a. No injunction during suspension of law. I; 282. Proceeding's in state courts enjoined under bank- rupt law of 1867. The jurisdiction of the United States courts sitting in bankruptcy to restrain proceedings in the state courts against the estate of a bankrupt, as exercised under the general Ij.inkfupt act of 18(57, while that act was 272 CHAP. IV.] rKOCKHDIXGS IN 15.\ XKK l' I'TCY. 273 in force, though .sonietiiiies questioned, may be regarded as having been too clearly settled to admit of doubt.^ In such cases the United States courts exercised no supervisory juris- diction over proceedings in the state courts since the state court itself could not be enjoined, but the litigant in that tribunal might be restrained from doing what would frus- trate or impede the jurisdiction expressly conferred by the bankrupt act.- It is to be observed, however, that the juris- 1 Irving V. Hughes, 2 Bank. Reg , 20; In re Wallace, lb., 52; In re Metcalf, Bank. Reg. Sup., xliii; /« re Reed, lb., i; In re Metzler, lb., ix; In re Richardson, 2 Bank. Reg., 74; Samson v. Burton, 4 Bank. Reg., 1; Same v. Same, 5 Bank Reg., 459; In re Bowie, 1 Bank. Reg., 185; Sedgwick v. Menck, lb., 108; In re Ulrich, 8 Bank. Reg., 15; Walker v. Seigel, 12 Bank. Reg., 394; In re Whipple, 13 Bank. Reg., 373; Hewett v. Norton, 13 Bank. Reg., 276; In re Mallory, 1 Sawy., 88. For cases where the bankrupt courts have refused to exercise the jurisdiction, see In re Cooper, 16 Bank. Reg., 178; Augustine v. McFarland, 13 Bank. Reg., 7. 2 Irving V. Hughes, 2 Bank. Reg., 20. But in Campbell's Case, 1 Abb. U. S. R., 185, the jurisdiction is questioned and its existence even denied, the court insisting that when the jurisdiction of the state court and the right of the plaintiff to prosecute his suit therein have once attached, that right can not be arrested or taken away by pro- ceedings in another court. McCand- less, J., observes: "The fact, there- fore, that an injunction issues only to the parties before the court, and not to the court itself, is no evasion 18 of the difficulties that are the nec- esary result of an attempt to ex- ercise that power over a party who is a litigant in another and inde- pendent forum. It follows, there- fore, that this court (U. S. District Court) has no supervisory power over the court of common pleas of Armstrong county by injunction or otherwise, unless it is conferred by the bankrupt law. But we can not discover any provision in that act which limits the jurisdiction of the state courts, or confers any power on the bankrupt court to supersede their jurisdiction, or wrest prop- erty from the custody of their offi- cers." * * * "Finding no such grant of power, either in direct terms or by necessary implication, from any of the provisions of the bankrupt law, we are not at liberty to interpolate it on any supposed grounds of policy or expediency. We shall, therefore, be compelled to dissolve this and all other in- junctions in similar cases." The language of the court, however, is to be taken in connection with the fact that in the case under consid- eration an injunction was sought against the enforcement of judg- ments of unquestioned validity re- covered in the state courts prior to 274 INJUNCTIONS. [chap. IV. diction was not dependent upon or derived from the fortieth section of the general bankrupt law of 1867, which provided that the court might restrain the debtor or any other per- son from making any transfer or disposition of the property pending the proceedings for an adjudication, and that while this section impliedly recognized the jurisdiction, the pre- vious enactments of other sections conferred it. The pro- vision of the fortieth section was held applicable only to the preliminary stage of the proceedings, and in that stage it dispensed with conditions and formalities which must other- wise have been observed.-"' § 283. Bankruptcy proceedings equitable in their nature. Proceedings in bankruptcy under the act of 1867 were regarded as in the nature of equity proceedings, and the jurisdiction of the court in the collection and distribu- tion of the bankrupt's estate was in its nature an equity power. And the court might enjoin proceedings against the property of the bankrupt under executions issued upon judgments recovered after the filing of the petition, it beinp the policy and aim of the bankrupt law to compel an equal distribution of the estate for the benefit of all the creditors.* the passage of the bankrupt act, s Irving v. Hughes, 2 Bank. Reg., and not only to restrain the judg- 20. As to the right to an injunc- ment creditors from proceeding tion under section 40 of the act of with the enforcement of their liens, 1867, and its duration, see In re but to enjoin the state court and its Moses, 6 Bank. Reg., 181; In re executive oflBcers. As far as appli- Fendly, 10 Bank. Reg., 250; In cable to such a state of facts the re Holland, 12 Bank. Reg., 403; In observations of the court may be re Irving, 14 Bank. Reg., 289; regarded as embodying the true In re Skoll, 16 Bank. Reg., 175; In doctrine, but in so far as they deny re Fuller, 1 Sawy., 243; In re Mal- the general jurisdiction of the Uni- lory, 1 Sawy., 88. ted States courts in bankruptcy to ^ In re Wallace, 2 Bank. Reg., 52. restrain proceedings in the state "It is the duty of this court," ob- courts against the estate of the serves Deady, J., "by means of bankrupt subsequent to the filing the jurisdiction given it, to pre- of his petition, they are opposed to serve and distribute the estate of the clear weight of authority. See the bankrupt among his creditors, note 1, § 282, ante. as the act prescribes. The respond- CHAP. IV.] PROCEEDINGS IX BANKRUPTCY. 275 § 284. Twenty-first section of the act of 1867. The twenty- first section of the general bankrupt act of 1867, providing for a stay of proceedings in all actions at law or in equity against the bankrupt pending the question of his discharge was held applicable to all cases where the personal liability of the debtor was sought to be fixed by a final judgment pending the determination as to his discharge. And the intent of the sec- tion being to prevent a race of diligence between creditors and to protect the bankrupt from being harassed with suits pending the question of his discharge, proceedings in the state courts would be enjoined until that question could be deter- mined.^ But the jurisdiction conferred by the twenty-first sec- ents, by means of these executions, are attempting to prevent this dis- tribution of the estate. An in- junction is a proper remedy or means to prevent this wrong and" fraud upon the law from being ac- complished. A petition to the court is the proper means of invok- ing this power." 5 In re Metcalf, Bank. Reg. Sup., xliii. Say the court, Benedict, J.; "The twenty-first section of the bankrupt act declares that 'no creditor whose debt is provable under this act shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt until the question of the debtor's discharge shall have been determined.' This is a very clear provision, the ob- ject of which is to prevent a race of diligence between creditors, and to protect the bankrupt from being harassed with suits pending the question of his discharge. It seems to apply to all cases where the personal liability of the debtor is sought to be fixed or ascertained by a final judgment pending the determination of the question of his discharge, and, in my opinon, it applies to a case like the present, where an action against the bank- rupt is pending in th§ Court of Ap- peals of the state to which an ap- peal has been taken by the bank- rupt prior to the filing of the peti- tion in bankruptcy. In such a case there is no final judgment within the meaning of the bankrupt act; the debtor's liability has not been finally determined; and there be- ing no final judgment, the bank- rupt act declares that the suit shall stop, pending the determin- ation of the question of the bank- rupt's discharge. This option to endeavor to obtain a discharge in bankruptcy, and, failing in that, to defend all undetermined per- sonal actions, is a right given a debtor by the bankrupt act under the Constitution of the United States, and he is entitled to be protected in that right by this court." 276 INJUNCTIONS. [chap. IV. tion of the bankrupt act did not extend to the enjoining of proceedings against the bankrupt in any other district than that in which the proceedings in bankruptcy were pending, and the United States district court had no power, either under the act of 1867 or independent of that statute, to restrain proceedings in the courts of the state by reason of bank- rupt proceedings pending in another district and before another court.*^ And under section 720 of the Revised Stat- utes of the United States prohibiting the granting of injun- tions by courts of the United States to stay proceedings in any court of a state except when authorized by any law relat- ing to proceedings in bankruptcy, it has been held that a circuit court of the United States has no jurisdiction to re- strain a levy upon the property of a bankrupt under a judg- ment recovered in a state court after the filing of the petition in bankruptcy." § 285. Limitations upon the jurisdiction. While the juris- diction of the United States courts sitting in bankruptcy to restrain proceedings against the estate of the bankrupt in the state courts is well established, these courts will not in the exercise of this their unquestioned prerogative, withdraw cases from the state courts into their own forum and there deter- mine them, such a course being clearly beyond their power.^ They may, however, enjoin creditors who have obtained an agreement with the bankrupt which is in fraud of the law and an invasion of the rights of the general creditors, from making any use of such agreement.^ Nor will these courts permit the creditor to proceed with a suit in the state courts, the effect of which would be to allow him to reap the advan- tage of his fraudulent agreement from the use of which he has already been enjoined, and an injunction will be granted « In re Richardson, 2 Bank. Reg., *< Samson r. Burton, 4 Bank. 74. Reg., 1. TTifft r. Iron Clad Mfg. Co., 16 old. Blatch., 48. CHAT. IV.] rKOCEEDINGS IN BAXKEUPTCY. 277 to restrain him from proceeding Avith such suit, the question being peculiarly within the jurisdiction of a court of bank- ruptcy.^" § 286. When injunction continued to hearing. Where creditors filed their petition for an adjudication of bankruptcy against their debtors, upon the ground of having made pre- ferred assignments and of having confessed judgment with intent to give certain creditors preference over others and an injunction was allowed to restrain proceedings under the assignments and upon the judgments, such injunction would not be dissolved until the determination of the question of the debtor's bankruptcy. The intent of the fortieth section of the act being to prevent any interference with the debtor's prop- erty until a decision should be reached upon the question of bankruptcy, the injunction would be continued until such decision.^ ^ 10 Samson v. Burton, 4 Bank. Reg., 1. 11 In re Metzler, Bank. Reg. Sup., ix. The court, Blatchford, J., con- struing the fortieth section of the act of 1867, say: "The injunctions were granted under the fortieth section of the act. The intent ot the provisions of that section man- ifestly is, to give the court author- ity in a case of involuntary bank- ruptcy, when an order is issued requesting the debtor to show cause why he should not be declared a bankrupt, to prevent by injunction any interference with the debtor's property until a decision shall be arrived at, whether the debtor is or is not to be adjudged a bankrupt. In the present case no such deci- sion has been arrived at. The deci- sion is suspended by the act of the debtors in denying that they have committed the act of bankruptcy alleged, and in demanding a trial by jury. The same facts which constituted sufficient ground for issuing the order to show cause, also furnish sufficient reasons for issuing the injunction. The court will not, on a motion of this kind, on affidavits, dispose of what are really all the issues involved in the proceeding. If the injunctions should be dissolved, and the debt- ors should afterward be adjudged bankrupts and an assignee of their estate be appointed, the court would have dissolved the injunc- tions on the same state of facts on which the debtors were adjudged bankrupts. Substantially the whole of the property of the debtors would have passed to the three preferred creditors, leaving to the assignee only an inheritance of lit- igation; and the very object of the remedy by injunction given by the fortieth section would have been defeated." 278 INJUNCTIONS. [chap. IV. § 287. Judgment creditors in good faith not affected. It is to be observed that the bankrupt law of 1867 in no manner impaired the rights of judgment creditors whose liens upon the bankrupt's property were acquired in good faith and with- out fraud before the passage of the act, or before the filing I of the petition. The rights of judgment creditors who, by the use of diligence and "without fraud or collusion, secured their debts as a lien upon the property of the debtor prior to the filing of his petition in bankruptcy, remained intact, and the bankrupt court would not enjoin them from the enforce- ment of those rights.^ 2 Thus, where creditors acting in good faith obtained judgments, issued executions and levied upon, the personal property of their debtor prior to the filing of his petition, and where it did not appear that the property levied upon was more than the amount of the judgments, or that a sale by the assignee would realize more than a sale by the sheriff under execution, and it not appearing that any advantage would result to the creditors by retaining an in- junction against such sale, the injunction was dissolved.^^ § 288. Sale of homestead under execution not enjoined. A creditor who has obtained judgment and issued execution against his debtor before the filing of his petition in bank- ruptcy will not be restrained from selling property clafmed by the bankrupt as a homestead, since if such property is in fact a homestead the title thereto is unaffected by the opera- tion of the bankrupt act, and the bankrupt, if wrongfully deprived of his homestead, has his remedy in the state courts.^* § 289. Effect of creditor's knowledge of debtor's insolvency. The question of the creditor's knowledge of his debtor's cir- cumstances at the time of obtaining judgment is not with- out weight in determining whether he shall be enjoined from pursuing his judgment in the state courts. And when the 1-! Campbell's Case, 1 Abb. U. S. i;' In re vVilbur, 3 Bank. Reg., 71. R., 185; In re Wilbur, 3 Bank. Reg., "/n re Hunt, 5 Bank. Reg., 493. 71. CHAP. IV.] PROCEEDINGS IN BANKRUPTCY. 279 creditor, at the time of obtaining judgment and execution and levying upon the property of his debtor, had sufficient cause to believe that he was insolvent and that he permitted him to obtain judgment, execution and levy with intent to give a preference within the meaning of the bankrupt act, the court will refuse to dissolve an injunction restraining such creditor from selling the property .^^ So where a creditor, having rea- sonable cause to believe his debtor to be in an insolvent con- dition, attached his property and after obtaining judgment against him by default seized his real estate on execution, the debtor having filed his petition in bankruptcy before the com- pletion of the levy, the assignee was allowed to enjoin the creditor from proceeding with a sale of the estate, the attach- ment having been levied within four months prior to the com- mencement of the proceedings in bankruptcy.^*' § 290. When injunction against judgment refused ; when allowed in behalf of assignee. Equity will not enjoin a judg- ment at law upon the ground that the court of law has no jurisdiction over the matter in controversy, by reason of the pendency of proceedings in bankruptcy against the judgment debtor at the commencement of that action, of which plain- tiff in such action was duly notified ; since if the court of law had no jurisdiction its judgment is void, and there is sufficient remedy at law for its attempted enforcement.^''' And an injunction has been refused in behalf of an assignee in bank- ruptcy seeking to restrain a judgment creditor of the bankrupt from selling his real estate under execution, the judgment having been recovered prior to the proceedings in bankruptcy.^ ^ So an assignee in bankruptcy can not main- tain a bill to set aside a sale by the bankrupt, and to restrain the purchaser from prosecuting an action of trespass in a state court against attaching creditors for having seized the 15 In re Bloss, 4 Bank. Reg., 37. it Hart r. Lazaron, 46 Ga., 396. 16 Haskell r. Ingalls. 5 Bank. '-^Reeser v. Johnson, 76 Pa. St., Reg., 205. 313. 280 INJUNCTIONS. [chap. IV. goods sold, when the property has already come into the pos- session of the assignee and he is not a party to the proceed- ings in the state court.^^ But a state court may properly en- tertain a bill for an injunction in behalf of an assignee in bankruptcy in the United States court, seeking to restrain the collection of judgments against the bankrupt in fraud of the rights of his creditors, the assignee being regarded as vested with all the rights in that behalf of creditors themselves.^o § 291. Rights of assignee of bankrupt as against fraudulent assignment. Since the property of the bankrupt assigned under the act of 1867 vested in the assignee for the benefit of all the creditors, it was held that he might properly enjoin all proceedings in the state courts relative to such property, which were had under an assignment in fraud of creditors.^^ And where a debtor had made a voluntary assignment for the benefit of his creditors, which was a fraud upon the bankrupt law and an act of bankruptcy, his assignee in bankruptcy was allowed to enjoin the assignee under such voluntary assign- ment from taking the property.^- So an assignee in bank- ruptcy^, upon a bill filed by him in the United States circuit court to set aside fraudulent sales and transfers of his prop- erty made by the debtor, has been allowed an injunction pen- deiiie lite to restrain the prosecution of suits in the state courts by persons claiming the propert}^, such relief being regarded ^■> Main r. Bromley, 10 Biss., 199. a petition to enjoin proceedings in 20 Barnard v. Davis, 54 Ala., 565. the state courts by creditors for As to the right to enjoin a judg- the enforcement of their judgment ment creditor from selling prop- liens could be brought only by the erty of the bankrupt under execu- bankrupt himself; while after the tion, under section 40 of the act of appointment of assignees, they 1867, see In re Lady Bryan Mining were the proper parties to apply Co., 6 Bank. Reg., 252; In re Mai- for relief, hi re Bowie, 1 Bank, lory, 1 Sawy., 88. As regards the Reg., 185. parties who might institute the -i Sedgwick v. Menck, 1 Bank, proceedings, under the act of 1867, Reg., 108. it was held that before the appoint- 2:.' in re Skoll, 16 Bank. Reg., 175. ment cf an assignee in bankruptcy CHAP. IV.] PROCEEDINGS IN BANKRUPTCY. 281 as incidental to the main object of the suit.--^ But in the case of a third person claiming absolute title to the matter in contro- versy as against the assignee in bankruptcy, the bankrupt court has refused to interfere by injunction upon a summary application in the bankrupt proceedings upon the ground that a new and independent suit was necessary to determine such conflicting questions of title.^* But under the English bank- rupt act of 1869, the court of bankruptcy, has jurisdiction in a summary method to restrain a person not a party to the proceedings from dealing with property alleged to have been fraudulently assigned before the bankruptcy.-'' § 292. Receivers in state courts ; effect of prior jurisdiction. If the property and effects of a debtor have already passed into the hands of receivers appointed by a state court, which has properly acquired jurisdiction of the subject-matter and of the parties before proceedings in bankruptc}^ are instituted against the debtor, the bankrupt court will not interfere by injunction with the possession of the property by such receivers, nor divest such possession in behalf of the assignee in bank- ruptcy. And the fact that the receivers of the state court assert a prior jurisdiction acquired by that tribunal affords no ground for the interference of the bankrupt court, when it is not shown that the property is in danger of waste or loss, or that the receivers are guilty of any misconduct. Nor, indeed, has the bankrupt court any such superior jurisdiction or supervisory control over the state tribunal as to warrant it in divesting the l)ossession of such receivers, or in enjoining them from the man- agement of the property,-^ And the bankrupt court may, in 23 Kellogg V. Russell, 11 Bank. -•'• Ex parte Anderson, L. R. 5 Reg., 121; S. C, 11 Blatch., 519; Ch., 473. Hudson V. Schwab, 18 Bank. Reg., -« Beecher v. Bininger, 7 Blatch.. 480. 170; In re Clark and Bininger, 4' 24 Smith V. Mason, 14 Wal., 419. Benedict, 88; In re Clark, 3 Bank. And see Wilson v. Childs, 8 Bank. Reg., 130. And see Alden v, Bos- Reg., 527; In re Marter, 12 Bank, ton, 5 Bank. Reg., 230. But see Reg., 185; In re Oregon Iron Piatt v. Archer, 9 Blatch., 559. Works, 17 Bank. Reg., 404; S. C, 4 Sawy., 169. 282 INJUNCTIONS. [chap. IV. such case, enjoin the bankrupts from interfering with the prop- erty in the possession of the receivers.^'^ If, however, the bank- rupt court has first acquired possession of the debtor's prop- erty, it may enjoin the creditors from further proceedings in the state courts. Thus, where after the filing of a creditor's bill and the appointment of receivers in a state court, the debtor files his petition in bankruptcy and is adjudicated a bankrupt, and delivers possession of his assets to the officer of the bank- rupt court, the receivers in the state courts having obtained possession of no assets, the creditors may be enjoined from further proceedings in their suits, reserving all questions as to the priorities which they may have obtained by their pro- ceedings in the state courts.^^ § 292 a. Jurisdiction under act of 1898. The jurisdiction of the United States courts under the bankrupt law of 1898 and its amendments is considerably narrowed as compared with that of the earlier acts of 1841 and 1867. By the first clause of § 23 of this act, the jurisdiction of the United States circuit courts in controversies at law or in equity, as distinguished from proceedings in bankruptcy, between trustees as such and ad- verse claimants to the bankrupt's estate, is expressly confined to those cases and those only in which the jurisdiction would have existed had no bankruptcy proceedings been instituted and the controversy had been between the bankrupt and such adverse claimants. And the second clause of § 23 is held to limit the jurisdiction of all courts, including the United States district courts, over independent suits brought by the trustee 27 In re Clark and Bininger, 4 petition of the assignees under Benedict, 88. In Freeman v. Fort, proceedings in bankruptcy subse- 52 Ga., 371, it was held that where quently instituted, and that it a state court, upon an ordinary would not surrender the assets creditor's bill, had enjoined the dis- until the bankrupt court had en- position of the debtor's property joined the creditors from proceed- and had taken possession of his es- ing in the state court. See also tate through its receiver, it would Seligman v. Ferst, 57 Ga., 561. not abandon its jurisdiction and -^ In re Whipple, 13 Bank. Reg., surrender the assets merely upon 373. CHAP. IV.] PROCEEDINGS IN BANKRUPTCY. 283 concerning property of the bankrupt ; such suits being limited, except with the consent of the bankrupt, to courts where the latter might himself have brought or prosecuted such suits had no bankruptc}^ proceedings been commenced.-'' But under the provision of the fifteenth clause of § 2 of act of 1898, the bankrupt court as such has jurisdiction, by summary process, to restrain actions in state courts concerning property of the bankrupt or any other disposition of or interference with the bankrupt's estate which would be void under the provisions of the law and would render its provisions nugatory .^^^ Thus, where, after an adjudication of bankruptcy, an action of re- plevin has been commenced in a state court against a bank- rupt to recover possession of property claimed by him at the time of the adjudication and in the possession of the referee at the time the action was commenced, the prosecution of such action will be enjoined.^^ So where an insolvent has made a general assignment for the benefit of his creditors under the laws of the state within four months of the filing of a petition against him, such assignment being void under the provisions of the bankrupt law, the bankrupt court may properly enjoin a sale or other disposition of the bankrupt's estate by the as- signee.^^ So where attachment suits have been instituted in a state court which are void under the terms of the bankrupt law and would result in an illegal preference, the attaching creditors may be restrained from prosecuting their suits in the state court.^^ So a trustee in bankruptcy, being in possession 29 30 Stat, 552; Bardes v. Ha- C. C. A., 182, 99 Fed., 920; In re warden Bank, 178 U. S., 524, 20 Chambers, Calder & Co., 98 Fed., Sup. Ct. Rep., 1000; Mitchell v. 865. McClure, 178 U. S., 539, 20 Sup. Ct. si White v. Schloerb, 178 U. S., Rep., 1000; Hicks v. Knost, 178 U. 542, 20 Sup. Ct. Rep., 1007. S., 541, 20 Sup. Ct. Rep., 1006. 32 /% re Gutwillig, 34 C. C. A., 30 White V. Schloerb, 178 U. S., 377, 92 Fed., 337; Davis v. Bohle, 542, 20 Sup. Ct. Rep., 1007; In re 34 C. C. A., 372, 92 Fed., 325. Gutwillig, 34 C. C. A., 377, 92 Fed., ss Bear v. Chase, 40 C. C. A., 182, 337; Davis v. Bohle, 34 C. C. A., 99 Fed., 920. 372, 92 Fed., 325; Bear v. Chase, 40 284 INJUNCTIONS. [chap. IV, of certain premises and there engaged in conducting the l)usi- ness of the bankrupt, may enjoin an action of ejectment brought against him in a state court for the recovery of the possession of such premises, the landlord, in such ease, being compelled to look to the bankruptcy court for the protection of his rights.^^ In some cases, however, the bankruptcy court has refused to enjoin the enforcement of judgments rendered against a bankrupt in a state court prior to the institution of bankruptcy proceedings; the federal court, in such case, act- ing upon principles of comity and out of regard for the prior acquired jurisdiction of the state court.^^ And where an action in a state court concerning the property of a bankrupt has been commenced more than four months prior to the insti- tution of bankruptcy proceedings and is there proceeding to judgment, the prosecution of such action or the enforcement of a judgment rendered therein will not be enjoined by the bank- ruptcy court.3<5 § 293. Contempt of bankrupt court. A judgment creditor in a state court, being enjoined in proceedings in bankruptcy from selling the debtor's property, after an adjudication in bankruptcy, has been attached for contempt in selling in dis- regard of the injunction."''" So a bankrupt who received money from his debtor after the filing of a petition in bankruptcy and after an injunction against him has been found guilty of con- tempt.^* '^i m re Chambers, Calder & Co., ^s /« re Hayden, 7 Bank. Reg., 98 Fed., 865. 192. But it was held in this case •■i5 In re Seebold, 45 C. C. A., 117, that the bankrupt might purge 105 Fed., 910; /w re Shoemaker, 112' himself of contempt by turning Fed., 648; In re Wells, 114 Fed., over all his assets to his assignee. 222. As to the punishment for violating :tG Frazier (;. Southern L. & T. an injunction restraining attach- Co., 40 C. C. A., 76, 99 Fed., 707; ing creditors of a bankrupt from Pickens r. Dent, 45 C. C. A., 522, proceeding with their attachments, 106 Fed., 65S. see Hyde (\ Bancroft, 8 Bank. ■■''In re Atkinson, 7 Bank. Reg., Reg., 24. 143. CHAP. lY.] PROCEEDINGS IX BANKRUPTCY. 285 § 294. When relief allowed as against mortgagees of bank- rupt. Relief by injunction lias been allowed in behalf of an assignee in bankruptcy to restrain mortgagees from proceed- ing at law to foreclose a mortgage given by the bankrupt before the commencement of proceedings in bankruptcy, upon the ground that it was the duty of such secured creditor to bring the property into court to be distributed by the as- signee.^^ And wdiere a sale by mortgagees of chattels mort- gaged to them by the bankrupt previous to filing his petition Avould injuriously affect the rights of the creditors by sacri- ficing the value of the property, there being a controversy concerning the right of the assignee to redeem, a temporary injunction may be allowed pending such controversy to pre- vent the mortgagees from selling under the power of sale.'*'^ But the bankrupt court has refused to enjoin the holder of a mortgage from proceeding with a foreclosure suit when no advantage could result to the estate of the bankrupt from such interference, the equity of redemption being of no value, and neither the assignee nor any of the creditors invoking the aid of the court. ^^ And where an assignee in bankruptcy had voluntarily entered his appearance in a foreclosure suit, brought in a state court after the commencement of proceed- ings in bankruptcy, the bankrupt court refused after a sale of the property to restrain in behalf of the assignee further proceedings in the state court."*- § 295. Injunction against sale of vessel. Where a vessel belonging to bankrupts has passed with their other assets into the hands of the assignee, and is afterward attached in pro- ceedings in rem to recover damages incurred by a collision with another vessel prior to the adjudication of bankruptcy, the libelants will be restrained from holding the vessel or from •■'•' In re Snedaker, 3 Bank. Reg., *] In re Iron Mountain Co., 9 155; In re Nathan, 92 Fed., 590. Blatch., 320. ■<" Foster r. Ames, 2 Bank. Reg., +2 Augustine v. McFarland, 13 146. Bank. Reg., 7. 286 INJUNCTIONS. [chap. IV. interefering in any manner with the property in the hands of the assignee. The possession of the vessel by the assignee being the possession of the court, it can not lawfully be disturbed, and if libelants in the collision suit have a lien upon the vessel by reason of the collision, it must be submitted to the bank- rupt court which has full power to liquidate such lien.'*^ § 296. Property acquired by bankrupt after adjudication ; effect of discharge; failure to plead dischargee. As regards property acquired by the bankrupt after the adjudication and pending proceedings for a final discharge, it is held to be within the protection of the general laws of the land, of which the bankrupt law is but a part. It is, therefore, compe- tent for the state courts to restrain the coercive sale by a creditor of the property of the bankrupt acquired after the adjudication, the execution being upon a judgment for a debt which Avas provable in the court of bankruptcy.^^ And 43 In re People's Mail Steamship Co., 2 Bank. Reg., 170. ■i-t Turner r. Gatewood, 8 B. Mon., 613; Leonard v. Yohnk, 68 Wis., 587. The doctrine as laid down in Turner v. Gatewood, 8 B. Mon., 613, which was decided under the bank- rupt act of 1841, is that while the United States courts have exclu- sive jurisdiction of proceedings in bankruptcy, the state courts may suspend such proceedings as are in- consistent therewith, and which are attempted to be carried on through their instrumentality, un- til the question of the bankrupt's discharge can be determined. "There is in such course," say the court, Marshall, C. .1., "no clash- ing of jurisdiction. The after-ac- quired property of the bankrupt is not within the operation of the proceeding in bankruptcy, and cer- tainly not within the exclusive jurisdiction of the bankrupt court, but is left to the protection of the general laws of the land, of which the bankrupt law is but a part. And when the creditor is using the process furnished by that law to subject property which by the result of a pending litiga- tion in another forum may be de- termined not to be liable, there seems to be a peculiar propriety in appealing to the ordinary tribunals for protection. We are satisfied, therefore, that the circuit judges of this commonwealth, and the justices of the peace appointed for the purpose within the several* counties, have power to grant in- junctions to prevent, after a decree in bankruptcy assigning the bank- rupt's property, and In prospect of his discharge by final decree CHAP. IV.] PROCEEDINGS IN BANKRUPTCY. 287 the effect of such injunction is to render an officer selling the property with notice thereof a trespasser ab initio, even though he may have levied upon the property before the granting of the writ.^^ So where a judgment debtor has been discharged in bankruptcy, and his sureties against whom judgment has also been recovered have paid the debt, an attempt to enforce the judgment against him may be enjoined.'*^ But a judg- ment debtor can not enjoin the enforcement of an execution against him upon the ground of his discharge in bankruptcy, when he has failed to avail himself of the bankrupt proceed- ings in defense of the action in which the judgment was re- covered.'*'^ Nor has the bankrupt court any jurisdiction to relieve against a judgment obtained against the bankrupt in a state court, in an action brought after his adjudication in bankruptcy in which he has failed to plead his discharge.^*^ § 297. Effect of discharge under state insolvent laws. While the authorities are not altogether reconcilable as to the effect of a discharge under the insolvent laws of a state upon judg- ments recovered against the insolvent, the better doctrine seems to be that a debtor who has obtained his discharge may enjoin proceedings against him to recover judgments upon his former liabilities.^^ Thus, where subsequent to his discharge and certificate, the coercive sale of the debtor to enjoin a judgment his property acquired after the as- rendered against him by default af- signment under an excution for ter his discharge in bankruptcy, a debt which was provable in the the cause of action having been bankrupt court." But in McMur- proven against his estate in bank- try V. Edgerly, 20 Neb., 457, 30 N. ruptcy, see Taylor v. Fore, 42 Tex., W., 417, it is held that the relief 256. should be allowed only upon condi- ^^ In re Ferguson, 16 Bank. Reg., tion of the bankrupt paying the 530. judgment debt. •»■• Starr v. Heckart, 32 Md., 267; 45 Turner v. Gatewood, 8 B. Mon., Carrington v. Holabird, 17 Conn., 613. 530. But see, contra, Katz v. •»« Hays V. Ford, 55 Ind., 52. Moore, 13 Md., 566, where It is 4" Gallaher v. Michel, 26 La. An., held that a judgment at law will 41; Bowen v. Eichel, 91 Ind., 22; not be enjoined because of the dis- Burke r. Pinnell, 93 Ind., 540. And charge of the judgment debtor see, ante, § 90. As to the right of under state insolvent laws pre- 288 INJUNCTIONS. [chap. IV. under the state laws, proceedings by scire facias are insti- tuted against the insolvent to revive a former judgment, and without fault or laches on his part he is prevented from plead- ing his discharge as a defense to the scire facias, equity will enjoin the enforcement of an execution under the judgment.^** § 298. Sale by United States marshal of property of third person not protected. A United States marshal who, under a warrant in bankruptcy directing him to take possession of the bankrupt's property, seizes property held by a third person, being indemnified by the creditors for so doing, will not be allowed to restrain proceedings against him in the state courts for the alleged tort in the wrongful taking of such property. The bankrupt court will neither protect its officers in the com- mission of a tort, nor will it compel the party injured to sub- mit his claim for damages to that court for adjudication.-^^ § 299. Suits against bankrupt pending composition, when enjoined. Pending proceedings for a composition in bank- ruptcy, and until the expiration of the time for the debtor to make the payments required by the composition, it has been held proper for the bankrupt court to enjoin the prosecution of suits against the debtor upon demands to which the com- position extended.^- But after the lapse of the full time pro- vided by the terms of the composition for carrying it into effect, the bankrupt court has refused to enjoin a creditor from prose- cuting his action in a state court against the bankrupt.'"'-'' § 300. State court will not enjoin person from taking bene- fit of bankrupt law. Since Congress is vested by the constitu- vious to the rendering of the judg- And see Carrington v. Holabird, 17 ment, even though the cause of Conn., TOO. action accrued before the dis- f^i In re Marks, 2 Bank. Reg., 175. '^ And although no express provision is made for the appointment or removal of a min- ister, yet if by the terms of the deed conveying church prop- erty to a religious body the title is vested in trustees for the use of the congregation, and a minister has been dismissed by the action of a majority of the church members and trus- tees, such majority are entitled to an injunction to prevent the deposed minister from continuing to officiate in that capacity.-- So when, under the organization of a church, a majority of its members have the right to control in church government and to select a pastor, and the pastor has been dismissed by the action of a majority, he may be restrained from exercising his functions, and his adherents may be enjoined from using or occupying the church without the consent of the majority.^^ § 312. Pastor regularly chosen not enjoined. An injunction will not, however, be granted for the purpose of ejecting a clergyman from his possession of a church and to prevent his preaching therein, when he is actually in office, having been placed there in the first instance by the act of the church and holding possession under claim of right, there being no other claimant of the pastoral office.^^ And where, in conformity with the usage and custom of an independent church, not con- nected with any religious denomination and governed by its own rules and customs, a pastor has been duly elected by a majority vote of the society, but the trustees, who have not the power of election, afterward decide upon the removal of the j)astor, equity will not interfere in their behalf to restrain the pastor from officiating.--'"' And where trustees, having control of its property in trust for a church, impr()i)erly close the chui-ch against the regular pastor, who is entitled under its ■21 Perry v. Shipway, 4 DeG & J., -•' Hatchett r. Mt. Pleasant Bap- 353, affirming S. C, 1 Gif., 1. tist Church, 46 Ark., 291. 22 Cooper r. Gordon, L. R. 8 Eq., - ' Youngs r. Ransom, 31 Barb.. 249. 49. ■^r' Trustees v. Proctor, 66 111., 11. CHAP, v.] IK ECCLKSIASTICAL MATTEKS. 305 canons to admission, au injunction will lie. And, the right being clearly established and its nivasion being likely to re- sult in serious injury, the injunction may be granted in the mandatory form to compel the opening of the church.26 § 313. Removal of minister not enjoined. The civil courts recognize to the fullest extent the right of religious bodies to control their own internal affairs and to select their own min- isters, in the absence of any obligations imposed upon them by the conveyances under which they hold their property. And where the deed conveying the property and buildings of a church is silent as to the mode of electing a minister and his continuance in office, and makes no provision for his salary or support, for which he is wholly dependent upon the volun- tary contributions of the church members, a court of equity will not interfere to enjoin his removal by a vote of the church.27 § 314. Injunctions against trustees and church officers. Any act upon the part of trustees of a religious society which obstructs the enjoyment of its property for the purposes and in the manner authorized by the usages of the church, is a departure from their trust which will be corrected in equity, such trustees holding the church property for the- use of the beneficiaries and the utmost good faith being exacted in the performance of their trust.-^ Nor does the fact that a court of law may have concurrent jurisdiction in such a case by mandamus, or that a statutory remedy is provided, deprive the court of equity of its jurisdiction.-'^ Thus, where the trustees have closed the church against the minister and those who desire to hear him, contrary to the wishes of a majority of the members, an injunction is the proper remedy, the griev- ance being a continuing act intended to prevent the com- 26 Whitecar v. Michenor, 37 N. ->^ Brunnenmeyer v. Buhre, 32 J. Eq., 6. III., 183. 2T Porter v. Clarke, 2 Sim., 520. 29 id. 20 306 INJUNCTIONS. [chap. V. plainants from exercising their right of worship in the church.^^ So trustees have been restrained by injunction from appoint- ing a minister not duly qualified according to the doctrines and standard of the church.^^ And an injunction will be al- lowed in behalf of an incorporated church to restrain per- sons professing to act as church officers, but without au- thority, from withholding possession of the church property and temporalities which they have secretly and illegally usurped, and to restrain them from interfering with the prop- erty and records of the church, such acts being distinguish- able from mere trespasses which may be remedied by aa action at law.^^ j^(j jq such case the trustees of the church, are proper parties complainant to the suit for an injunc- tion against the pretended trustees, and the action need not be brought in the name of the state.^^ gg where trustees of a religious society are merely naked trustees, holding and disposing of its property in conformity with the directions of the cestui que trust, which is the congregation, and the congregation has voted regularly to allow the pastor a given. credit upon a bond given by him to the corporation, and the trustees, having acquiesced in the transaction, afterward in- stitute an action upon the bond in disregard of the credit thus allowed, they may be restrained from prosecuting such ac- tion.^^ And where the trustees merely hold the temporal prop- erty of the church in trust for the congregation, with no authority to close the church building at their discretion, the pastor and the society being the depositaries of such au- thority according to the church customs and discipline, the 30 Brunnenmeyer v. Buhre, 32 elapse before the hearing. III., 183. '■^~ Lutheran Evangelical Church •ii Milligan v. Mitchell, 1 Myl. & v. Gristgau, 34 Wis., 328; Trustees K., 446. But the court refused v. Hoessli, 13 Wis., 348. that part of the motion which ■'';* Trustees v. Hoessli, 13 Wis., sought to restrain the trustees 348. from allowing persons not properly •'•» Worrell r. First Presbyteriau qualified to officiate occasionally Church, 8 C. E. Green, 96. during the short period yet to CHAP, v.] IN ECCLESIASTICAL MATTERS. 307 trustees may be enjoined from closing the church and from preventing its use as a place of worship or business.^^ It is also worthy of notice that in matters of church regulation the courts give great weight to the views of members or cor- porators, even as against trustees or officers of the corpora- tion. And in an action by the trustees of a religious organiza- tion against its minister to prevent him from removing the church building and temporalities to another location, if it appears that a majority of the corporators or members favor such removal, a court of equity will be inclined to give effect to their views and will refuse to enjoin in behalf of the trus- tees.^^ § 315. The same, when refused. While, however, the juris- diction of equity to prevent any departure from the objects of a trust created for religious purposes is, as we have al- ready seen, firmly established, the civil tribunals will not wrest from the properly constituted authorities of a church the right to exercise their discretion over matters properly within their own control. And a court of equity will not interfere upon the complaint of members of a church to restrain the trustees thereof from a sale of the church prem- ises, the trustees being vested with full control over the aifairs of the church and the sale being a matter entirely within their own discretion.^^ Nor does the fact that trustees of a religious association, contrary to the express terms of their charter, have intruded upon the functions of the minister or other officers of the church, constitute sufficient ground for the interposition of equity by injunction, the proper remedy being by mandamus.^^ But where church wardens are by law the guardians and keepers of the church and representatives of the body of the parish, they may restrain the incumbent 35 Morgan v. Rose, 7 C. E. Greeu, so Kulinski v. Fambrowski, 29 583. But the court hold the church Wis., 109. corporation, as such, to be a neces- ^7 Van Houten v. First Church, sary party to the proceeding. 2 C. E. Green, 126. 38 Tartar v. Gibbs, 24 Md., 323. 308 INJUNCTIONS. [CUAP. V. from dismantling the church and from removing the pews with a view to improvements.^^ And the managers of a religious society who have removed an agent for alleged misconduct have been allowed an injunction to prevent such deposed agent from interfering with their possession of the premises.'*'^ § 316. Disturbance of burial ground enjoined. It is not necessary that property should actually have been conveyed to the uses of a religious society to create a trust entitled to the protection of equity, and where real estate has been dedicated to religious uses and has been held and occupied by a church for religious purposes and as a burial ground for a period of fifty years, with the acquiescence of the original donor, his heirs will be enjoined from disturbing such possession and from attempting to regain the property."^^ And although the congregation is merely a voluntary society, never incorporated, and acting by committees or trustees chosen from time to time by vote of its members, such trustees, be- ing in actual possession of the premises and acting by direc- tion of the society to prevent any disturbance of that pos- session, are proper parties to maintain a bill for injunction.*^ 39 Cardinal r. Molyneux, 7 Jur. serious objection to their right to N. S., 854, affirming S. C, lb., 254, maintain the suit. It is a case 2 Gif., 535. where no action at law, even if *o Spurgin c. White, 2 Gif., 473. one could be brought by the volun- ^J Beatty ?•. Kurtz, 2 Pet., 566. tary society (which it would be 42 Beatty r. Kurtz, 2 Pet., 566. In difficult to maintain), would afford the ornate language of Mr. Justice an adequate and complete remedy. Story the court say: * * * This is not the case of a mere "The next question is, as to the private trespass; but a public competency of the plaintiffs to nuisance, going to the irreparable maintain the present suit. If they injury of the Georgetown Congre- are proved to be the regularly ap- gation of Lutherans. The proper- pointed committee of a voluntary ty consecrated to their use by per- society of Lutherans, in actual pos- petual servitude or easement, is to session of the premises, and acting be taken from them, the sepulchres by their direction to prevent a dis- of the dead are to be violated; the turbance of that possession, under feelings of religion, and the senti- fircumstances like those stated in ment of natural affection of the the bill, we do not perceive any kindred and friends of the deceas- CHAP, v.] IN ECCLESIASTICAL MATTEKS. 309 So where land has been conveyed for use as a burial ground for members of a particular church, the conveyance limit- ing its use to the burial of members of that church, an in- junction will be granted to prevent the interment therein of one who was not in communion with the church at the time of his deatli.'*^ § 317. When doctrinal questions investigated in equity. The question of the extent to which a court of equity will in- vestigate the doctrines and inquire into the modes of worship of a religious society is largely dependent upon the terms and conditions of the trust under which its property is held. And where property is convej-ed to trustees for the use of a re- ligious association upon the condition of its being forever used as a place of worship in accordance with the forms and doc- trines of a particular church, such doctrinal points are proper subjects of investigation by the court in determining whether such a perversion of the trust exists as to warrant an injunc- tion.*"* But where such investigation is not necessary for the protection and enforcement of the trust, the court will not institute any inquiries into doctrinal or polemical question.*^ § 318. Violation of trust by one of two religious bodies ground for injunction. Where property is conveyed in trust for the use of two unincorporated religious bodies, and one ed are to be wounded; and the me- religious sensibilities of the liv- morials erected by piety or love, to ing." the memory of the good, are to be *'^ Dwenger i\ Geary, 113 Ind., removed, so as to leave no trace of 106, 14 N. E., 903. the last home of their ancestry to ** Kniskerni;. Lutheran Churches, those who may visit the spot in 1 Sandf. Ch., 439; Miller r. Gable, future generations. It can not be 2 Denio, 492; Baptist Church r. that such acts are to be redressed Witherell, 3 Paige, 296; McGinni.s by the ordinary process of law. r. Watson, 41 Pa. St., 9; Sutter v The remedy must be sought, if at Trustees, 42 Pa. St., 503; Wine- all, in the protecting power of a brenner v. Colder, 43 Pa. St., 244. court of chancery, operating by its *5 German Church v. Maschop, 2 injunction to preserve the repose Stockt., 57. of the ashes of the dead, and the 310 INJUNCTIONS. [chap. V. of the two, in violation of the terms of the trust, takes exclu- sive possession, a proper case is presented for an injunction. Such a dispute is not merely as betw^een tenants in common of realty, but it concerns the rights and privileges of mem- bers of unincorporated societies, and the remedy at law be- ing inadequate, equity may properly interfere.^*^ § 319. Mere trespass not enjoined. If the injury complained of is merely a trespass susceptible of adequate relief in an action at law, an injunction should not be allowed.^''' Thus, where two conflicting sects of a church were contending as to the right of possession of church property, and the party in actual possession had obtained an injunction restraining de- fendants from forcibly entering into the premises to bury their dead, the injunction was dissolved on the ground that the acts in question merely constituted a trespass and were not productive of irreparable injury.^'* So the relief will be de- nied Avhere the legal remedy of ejectment is adequate.*^ § 319 a. Injunction where question of trust involved, eject- ment being inadequate. Notwithstanding, however, the ex- istence of a legal remedy, the courts are inclined to be liberal in granting relief by injunction, unless it appears that the remedy at law is fully as effective for the redress of the wrong complained of as that in equity. And where the question of title between two contending factions is incidental to and involves the determination of the trusts upon which the title is held, which are matters peculiarly within the province of a court of equity, the remedy by ejectment is not regarded as practical or adequate, and relief by injunction is properly granted.^^ And where one of the opposing factions was for- cibly preventing complainants from enterins: the church and 46 Kisor's Appeal, 62 Pa. St., 428. « Miller v. English, 2 Halst. Ch., *■! Miller v. English, 2 Halst. Ch , 304. 304; Wehmer r. Fokenga, 57 Neb., ^i" Wehmer r. Fokenga, 57 Neb., 510, 78 N. W., 28; P>edericks r. 510. 78 N. W., 28; Fredericks r. Huber, 180 Pa. St., 572. 37 Atl., 90. Huber, 180 Pa. St., 572, 37 Atl., 90. •''> Brundage v. Deardorf , 55 Fed., CHAP, v.] IN ECCLESIASTICAL MATTERS. 311 was threatening to destroy the church property rather than to allow complainants to use it, an injunction was held to be the proper remedy.^^ And where complainants, the deacons of a church and trustees of its property, have the power to determine by whom it may be used and to exclude those who refuse to recognize the authority of the regular organization, they may enjoin defendants who had been expelled from the church from interfering with their use and possession of the church property .^2 839. In this case Taft, J., uses the following language: "The first contention in support of the demurrer is that a court of equity has no jurisdiction to consider the bill, because its averments show that the complainants have a plain and adequate remedy at law, in ejectment. I do not think this contention can be sustained. It is quite true that the complain- ants aver that they have the legal title to the property in contro- versy, but it appears from the bill that they hold it in trust for the use of the members of the local society whom they represent. It is also apparent that the contro- versy is with another set of trus- tees, who claim legal title for the purpose of maintaining the prop- erty for different uses under the same deed of trust. In other words, the question of title is to be determined by the character of the trust to which the property .s to be devoted, and the action is to restrain the use of the property in perversion of the lawful trust. The property is, in a sense, brought into a court of equity, for the court to decide what use shall be made of it, and, by its equi- table power of injunction, to en- force the proper use. The fact that in doing so it also has to de- termine the legal title will not oust the jurisdiction of a court of equity. The peculiar charac- ter of the possession by the church trustees, and of the use by the pastor and congregation, makes it clear that a mere action in eject- ment would he quite inadequate as a remedy to secure the com- plainant trustees, and those whom they represent, the same peculiar possession and use for them. The writ of injunction is well adapted to prevent an unlawful intrusion in the pulpit by the pastor, and an unlawful use by the congregation, against all of whom it would be obviously impracticable to insti- tute proceedings in ejectment. In the enforcement of a trust, where the circumstances are such that the remedy is not as complete at law as in equity, a trustee may appeal to a court of equity to as- sist him." siRichter r. Kabat, 114 Mich.. 575, 72 N. W., 600. 52 Fulbright v. Higginbotham, 133 Mo., 668, 34 S. W., 875. 312 INJUNCTIONS. [CIIAP. V. § 320. Diversion of church property to school purposes en- joined. Where land is conveyed to a church to be used ex- clusively for religious purposes and for none other, an in- junction will be granted to restrain a diversion of the prop- erty for school purposes, and the action may be brought by the pew owners of the church, they having sufficient interest in the property to make them proper parties complainant to the bill.^3 And the trustees of a church may be enjoined from leasing its property for school purposes contrary to the terms of the grant/"^-* So when two religious associations had united in the building of a church, agreeing by their articles that it should be used only Jfor divine services, and had for many years used it in common, permitting only meetings for public worship to be held therein, and one of the associations, with- out the sanction of the other and against its protest, intro- duced a Sunday school into the church, an injunction was granted against such use of the common property .^^ § 321. Pew holders not allowed to enjoin trustees from re- building. Pew holders in a church will not be allowed to enjoin the trustees from rebuilding when there is no impro- priety in the disposition of the funds, and it is conceded that the old buildings are in a dilapidated condition and that a new edifice on the same location would be highly beneficial. Complainants in such a case will be left to the assertion of their legal and equitable rights in the new building when completed.^" Even where the trustees are about pulling down the church for the purpose of using the materials in the erec- tion of a new structure in a different location, the nature and extent of the injury are not such as to call for an injunction to protect the pew holders, and they will be left to their remedy at law.'"''^ •-'S Howe V. School District, 43 •'■' Gass's Appeal, 73 Pa. St., 39. Vt., 282. •''" Heeney r. Trustees, 2 Edw. r.i Perry v. McEwen, 22 Ind., Ch., 608. 440. •'■'" Van Horn r. Talmage, 4 Halst. Ch.. 108. CHAP, v.] IN ECCLESIASTICAL MATTERS. 313 §322. Church property in receiver's hands protected by injunction. If a court of equity has already acquired juris- diction over the subject-matter in controversy, and has taken possession of the church property by its receiver, it will not permit any unwarrantable interference with such possession, and will protect its receiver, if necessary, by the process of injunction. Thus, where a receiver is appointed over certain church property, and a church warden, claiming to be legally entitled thereto, takes possession of the property by force and prevents the minister from holding services therein, the court will enjoin him from interfering with the premises, or with the performance of worship therein.'''^ » Attoruey-GeneTal »• St. CroBS Hospital, 18 Beav., 601. CHAPTER VI. OF INJUNCTIONS AFFECTING REAL PROPERTY, I. General Features of the Relief § 323 II. Injunctions in Aid of Possession 354 III. Judicial Sales under Execution against Third Person.. 367 IV. Cloud upon Title 372 V. Collection of Purchase Money on Failure of Title.. 382 VI. Ejectment 414 VII. Landlord and Tenant 430 VIII. Homesteads 438 I. General Features of the Relief. § 323. Equity averse to interference when relief may be had at law. 324. Relief granted only for fraud, accident or mistake; facts must be stated. 325. Defense at law a bar to injunction. 326. Only judgment creditors may enjoin disposition of debtor's prop- erty. 327. Loss of conveyance ground for relief; stranger to title denied injunction. 328. Attempt to revoke dedication enjoined. 329. Mining property; fraudulent conveyance of land; recorder of deeds enjoined. 330. When sale of trust estate enjoined. 331. Tenant for life and remainder-man; emblements. 332. Party-wall agreements; opening windows in party-wall en- joined. 333. Injunction refused when party protected by lis pendens. 334. Sale of purchase-money notes by vendor who has given bond for title. 335. When partition enjoined; sale under execution not enjoined after partition. 336. Mechanics' lien proceeding, when not enjoined. 337. Dower proceeding; rents and profits; claimant under adminis- trator's sale. 338. Effect of conveyance made by one enjoined. 339. Judgment creditor not enjoined by legatees or devisees. 314 CHAP. VI.] AFFECTING KEAL PROPERTY. 315 § 340. Writ of restitution not enjoined. 341. Judgment for breach of covenants, when enjoined. 342. Entry under right reserved; relief against penalty in deed of trust. 343. Fruit trees and shrubbery; confusion of boundaries; tenants in common. 344. Injunctions as between tenants in common. 345. Sale of trust property, when enjoined; waiver of lien by judg- ment creditor. 346. Commissioner in chancery, when enjoined from sale. 347. Irregularities in municipal proceedings no ground for injunc- tion. 348. Delay in giving deed. 349. Municipal authorities enjoined from encroaching on private property. 350. Removal of barracks; ditch on public domain. 351. Disinterment of bodies, when not enjoined. 352. Sale of school property under execution enjoined. 353. Enjoining removal of fixtures, not a conversion of fixtures. 353a. Judgment sale of realty in bulk. §-323. Equity averse to interference when relief may be had at law. The numerous and complicated questions growing out of transfers of real property, as well as those which are con- nected with its possession and enjoyment, have given rise to frequent applications for the exercise of the extraordinary aid of equity by injunction. While, as we shall see, the deci- sions of the courts are not altogether harmonious in cases of this nature, they have generally been averse to any interference where the questions involved were such as might be deter- mined in a legal forum. And it is only upon a clear showing of the inadequacy of the remedy at law that equity will assert its jurisdiction. § 324. Relief granted only for fraud, accident or mistake ; facts must be stated. It may be laid down as a general rule that equity will not interfere with proceedings at law affect- ing the title to real estate in the absence of fraud, accident or mistake.^ Thus, purchasers for a valuable consideration 1 Rogers v. Cross, 3 Chand., 34; Evans v. Lovengood, 1 Jones Eq., Cameron v. White, 3 Tex., 152; 298. And in Cook v. Burnley, 45 316 INJUNCTIONS. [chat. VI. and without notice of conflicting equities will not, on ac- count of such equities, be enjoined from taking possession of premises under a judgment in ejectment in their favor, no fraud being alleged against them.'- Nor will the loss of a deed necessary to complete a chain of title warrant the inter- position of equity in the absence of fraud, accident or mis- take.3 So, too, a sale of real estate under legal process will not be enjoined because of irregularities in the proceedings, or because the judgment on which process issued was void, where no serious injury or embarrassment to title is shown as likely to result from allowing the sale to proceed.'* Nor will a sale under execution be restrained, as between different creditors claiming liens thereon, upon the ground that a sale, pending the determination of such liens, would not realize the full value of the property, or upon the ground that, by reason of his poverty, complainant will be unable to bid for the premises at such sale.-'' Nor will a sale under execution be enjoined because of a misdescription of the premises, when the mis- take is not such as to render the levy void and when the land may be readily identified.^ And when an injunction is sought upon the ground of alleged injury to real estate, the facts must be stated which show that the injury is irreparable, and a mere allegation of irreparable injury will not suffice to war- rant the relief.'^ Tex., 97, it is said that an injunc- 3 Rogers v. Cross, 3 Chand., 34. tion in a litigation concerning real * Morgan v. Whiteside's Curator, estate which restrains defendant 14 La., 277; Cameron v. White, 3 from asserting any title to the Tex., 152; Union Iron Works v. land in controversy, either in any Bassick Mining Co., 10 Col., 24, 14 court, or "in any writing, or by Pac, 54. printed publication, or by spoken ^ Sanders v. Foster, 66 Ga., 292. words," if permissible at all, can '• Boggess r. Lowrey, 78 Ga., 539, only be supported upon very ex- 3 S. E., 771. traordinary grounds, established ' Van Wert (;. Webster, 31 Ohio with great certainty of proof. St.. 421. 2 Evans r. I.,ovengood, 1 Jones Eq., 298. CHAP. VI.] AFFECTING HEAL PROPERTY. 317 § 325. Defense at law a bar to injunction. The fact that the ground relied upon as the foundation for an injunction can be urged as a defense at law is a sufficient reason for withholding the relief. And where a bill is filed to establish a legal title and for a perpetual injunction against proceedings at law connected therewith, in the absence of any allegation of inability to defend at law, the relief will be refused.^ So legal proceedings affecting the title to real estate will not be restrained on the ground that plaintiff has no cause of action. Thus, the plaintiff in an action of forcible entry and detainer will not be enjoined from further prosecuting his action be- cause he has no title, the title to the premises being in de- fendant, since such defense can as well be relied upon in the action itself.** Nor will equity interfere with the prose- cution of actions of forcible entry and detainer where it does not appear that a certain and manifest irreparable injury will result unless the relief be allowed, and where there are no allegations of fraud, accident, mistake, or surprise.!^ § 326. Only judgment creditors may enjoin disposition of debtor's property. It is a well established rule that equity will not entertain jurisdiction to restrain a debtor from dis- posing of his property at the suit of a creditor whose de- mand is not yet reduced to judgment, and which constitutes no lien upon the property. Until his rights are fixed and es- tablished by judgment, a creditor is entitled to no control over his debtor's property and he will not be allowed to question its disposition or management. Any other rule than this would lead to unnecessary and often fruitless interruption of prop- erty rights by creditors at large whose demands might be utterly unfounded in law and incapable of being established by judgment.^i In the application of this rule a judgment, »* DeGroot v. Receivers, 2 Green ^ Wiggins v. Armstrong, 2 Ch., 198. Johns. Ch., 144. And see Candler 9 Chadoin v. Magee, 20 Tex., 476. r. Petitt, 1 Paige, 168. Upon this 10 Crawford v. Paine, 19 Iowa, subject generally, see, jiost. § 1403 172; Lamb r. Drew, 20 Iowa, 15. et seq. 318 INJUNCTIONS. [chap. VI. to "warrant the interference of a court of equity, must be such an one as constitutes a lien upon the real estate sought to be controlled. A foreign judgment will not therefore suf- fice, since, until reduced to judgment in the state where the injunction is sought, it constitutes no lien on the debtor's property. Until such judgment is established by the courts of the state where relief is sought, the judgment creditors have no other or different rights as to the property of their debtor than if their demand was not yet established at law.^^ 12 Buchanan v. Marsh, 17 Iowa, 494. In this case suit was begun upon a judgment rendered in Can- ada, and an injunction was asked at the same time to restrain de- fendants from alienating or in- cumbering their real estate until the rights of the parties should be determined at law. Wright, C. J., delivered the opinion of the court, saying: "Plaintiffs are not judg- ment creditors. For the purposes of the present inquiry, their ac- tion is like any ordinary one upon a note, account, or any simple contract, or evidence of indebted- ness. They have a foreign judg- ment; but until it becomes a judgment in our courts, they are no more than creditors at large, and until they obtain the recogni- tion of their claim by the adjudi- cation of our state tribunals, they have no other or different rights as to the property of their debtor than if their demand was indorsed by a less solemn or conclusive proceeding or instrument. For, however effectual such judgment may be, or whatever the faith and credit to which it may be entitled, it is very certain that it can not be enforced here until its validity is recognized and passed upon by the judgment of our courts. * * * This being so, upon common law principles, we know of no princi- ple upon which plaintiffs were en- titled to this injunction. The rule is, as far as we know, without ex- ception, that the creditor must have completed his title at law, by judgment (if not by execu- tion), before he can question the disposition of the debtor's prop- erty. Angell V. Draper, 1 Vern., 399; Shirley r. Watts, 3 Atk., 200; Bennet v. Musgrove, 2 Ves., 51; Wiggins V. Armstrong, 2 Johns. Ch., 144; Jeremy's Eq., 161. The reason of the rule is, that, until the creditor has established his title, or his debt, by the judgment of a court, he has no right to in- terfere; for, unless he has a cer- tain claim upon the . property of the debtor, he has no concern with his frauds. To establish any other rule, might lead to an unnecessary and perhaps fruitless and oppres- sive interruption of the exercise of the debtor's rights. 2 Johns. Ch., supra." But in Joseph v. Mo- Gill, 52 Iowa, 127, plaintiff who hafl attached real estate claimed to belong to the debtor and to have CHAP. VI.] AFFECTING REAL PROPERTY. 319 § 327. Loss of conveyance ground for relief; stranger to title denied injunction. Relief may sometimes be had against a sale of real property on the ground of unavoidable accident where great injury would result to complainant if the sale were al- lowed to proceed unchecked. Thus, where a conveyance of land is executed and delivered and the purchase price paid, but the conveyance is lost before being recorded, a sale of the premises by the heirs or representatives of the grantors may be enjoined, such sale being a fraud upon the rights of the grantees,^ ^ So a purchaser of real estate which is located in another state, who has paid part of the purchase money and received from his grantors a conveyance so defectively ac- knowledged as not to entitle it to record in the state where the land is located, may enjoin his grantors from selling the property to others.^-* But a stranger to the title, even though he be in possession, will not be permitted to enjoin the real owners from asserting their title on the ground that it was fraudulently obtained.^^ § 328. Attempt to revoke dedication enjoined. It may some- times happen that the owner of lands is by his own acts es- topped from exercising any subsequent control over them and may be enjoined from interference. Thus, a dedication of land to the use of the public, being in the nature of an estoppel in pais, equity will enjoin any attempt to revoke such dedication and to sell the land.^'' And where real estate has been for many years occupied by a church for pious uses with the knowledge and consent of the donor, his heirs will be perpetually en- joined from disturbing such possession, even though the dedi- been fraudulently conveyed to a i'- Wright's Heirs v. Christy's co-defendant, was allowed an in- Heirs, 39 Mo., 125. junction before judgment to pre- i-* Frank v. Peyton, 82 Ky., 150. vent defendants from transferring i^ Treadwell v. Payne, 15 Cal., the property in fraud of their 496. creditors. i« Mayor v. Franklin, 12 Ga., 239. 320 INJUNCTIONS. [chap. \'l. cation may have beeu in such vague terms as not to be supr ported generally in equity.^ ^ § 329. Mining property ; fraudulent conveyance of land ; re- corder of deeds enjoined. While as a general rule courts of equity look unfavorably upon applications for injunctions pending proceedings at \'aw to determine the title to realty, there may be peculiar circumstances connected with the prop- erty rendering it imperative that the rule should be somewhat relaxed and the relief granted. Thus, where the title to min- ing property is in controversy, an injunction may be granted to preserve the property pending litigation to try the right, the exception resting upon the peculiar nature of the property in dispute.^ '^ So in an action to set aside a fraudulent con- veyance of land and to recover possession of the premises on which a valuable crop is standing, an injunction has been al- lowed to prevent defendant from disposing of the land until the rights of the parties should be determined at law.^^ And w^hile the remedy by injunction is not ordinarily employed to determine controverted questions of title, yet in a case of con- spiracy by defendants to defraud the owner of his property, they may be enjoined from conveying, and the recorder may be enjoined from recording a fraudulent conveyance of the property.-*^ §330. When sale of trust estate enjoined. Although the protection and enforcement of trusts is a favorite branch of the jurisdiction of courts of chancery, it is not every case of a trust that will warrant relief by injunction. Thus, equity will not interfere to prevent the execution of a general power, in a trustee to sell lands for the benefit of others where it does not appear that the power is being inequitably or un- justly exercised.-^ But where land is conveyed to a corpora- '- Kurtz 1-. Beatty, 2 Cranch C. 20 Palo Alto B. & I. Co. r. Mahar, C, C99. 65 Iowa, 74. 21 N. W., 187. • iHess r. Winder, 34 Cal., 270. -'i Selden v. Verniilyea, 1 Barb., 1" Corcoran 1: Doll, 3.5 Cal., 476. 58. CHAP. VI. I AFFECTING REAL PROPERTY. 321 tion in trust to be used for the purposes of a public street, the owner of property on such street is regarded as a cestui que trust with reference to such land, and may enforce the execu- tion of the trust by restraining its violation. 22 And a re- mainder-man is entitled to an injunction until final hearing to prevent a sale of the trust estate under a judgment against the trustee or tenant for life in whom the title is vested.^^ But the cestui que trust of lands in a case where the trust is created for his own benefit, can not by investing his individual means in building upon the lands create a trust in his own favor to the prejudice of his judgment creditors. And the creditors may invoke the aid of equity to prevent such a diver- sion of the debtor's means, and on their application the pay- ment of rents by the trustees to the debtor will be enjoined and a receiver appointed to apply the rents in payment of the judgment.2"^ So when one has j^urchased land with his own money, the title being taken by a third person, so that a resulting trust exists in favor of the real purchaser, who is in possession, he may restrain the enforcement out of such land of a judgment against the holder of the legal title, the judgment creditor being chargeable with notice of the trust.^* And where a trustee, holding the legal title to real estate for certain beneficiaries, has perverted his powers as trustee, mis, applied the proceeds of sales of the trust estate and refused to account to the beneficiaries, he may be enjoined from a threat- ened sale of other portions of the property, his insolvency be- ing shown. -"^ So when plaintiff is in possession and has made valuable improvements under a parol agreement to convey and is entitled to a specific performance, he may enjoin creditors of his grantor from levying upon the land under judgments against the vendor, the agreement being made while the vendor 22 Lawrence r. Mayor, 2 Barb., Ch., 120, affirmed by the Court of 577. Appeals, lb., 729. 23 Keaton v. Baggs, 53 Ga., 22tJ. -■■ Ferrin r. Errol, 59 N. H., 234. 24 Johnson v. Woodruff, 4 Halst, -« Albright r. Albright, 91 N. C, 220. 21 322 INJUNCTIONS. [CIIAP, VI. was solvent and with no intention to defraud his creditors.27 And where defendant had agreed with plaintiif to devise to her certain premises if she would live with and care for him dur- ing the remainder of his life, plaintiff having complied with the contract upon her part was allowed an injunction to re- strain defendant from conveying the premises to a third per- §331. Tenant for life and remainder-man; emblements. As between the tenant for life and the remainder-man, it is held that mere apprehensions that the tenant is about to remove property from the estate are not sulRcient foundation for an injunction against such removal, but such facts and cir- cumstances must be set forth as will show that the apprehen- sions are well founded, and this being done equity may in- terfere.-^ And an isolated conversation between the tenant for life and the remainder-man, in which, under the influence of ardent spirits and excited by a quarrel, the former has threatened a removal of the property, will not warrant a court in granting an injunction.^*^ Such facts and circumstances must be shown as are sufficient to constitute a reasonable ground for apprehending that the tenant for life intends the commission of a fraud, and thereby to defeat the ulterior es- tate by the destruction or removal of the propert}^^^ And where plaintiff seeks by his action the enforcement of a ven- dor's lien upon real estate, he is not entitled to an injunction to prevent the removal from the premises of emblements used in the cultivation of the land, which are not permanently attached thereto, and which have been placed upon the land after the sale under which the lien is claimed.-'^^ 27 Brown ^'. Prescott, 63 N. H., "lo Airs v. Billops, 4 Jones Eq., 61. 17. 2H Pflugar r. Pultz, 43 N. J. Eq., si Mercer v. Byrd, 4 Jones Eq., 440, 11 Atl., 123. 358. 2» Swindall v. Bradley, 3 Jones ■'- McJiinkin v. Dupree, 44 Tex., Eq., 353. 500. CHAP. VI.] AFFECTING REAL mOPERTY, 323 §332. Party- wall agreements; opening windows in party- wall enjoined. Upon the question of relief by injunction against tlie breacli of party-wall agreements between the own- ers of adjacent premises, the courts seem to be averse to ex- tending their preventive aid in limine. And where plaintiff and defendants are adjacent lot owners and have entered into a party-wall agreement, a disregard of its terms by defend- ants in the construction of the party-wall will not justify an injunction before the final hearing when no irreparable in- jury is shown.33 ji^^ where a mandatory injunction was sought to compel defeniiant to tear down a party-wall which projected a short distance upon plaintiff's premises, the relief was denied, leaving the plaintiff to his remedy in damages to be recovered in an action of trespass.^-* But the rule is Avell established that an injunction is the appropriate remedy to prevent an adjacent owner of real property from opening or using windows through a party-wall between the premises.^^ And a mandatory may properly be granted requiring the clos- ing up of windows already opened.^^ And in such case the in- junction will be broad enough to compel the defendant, not merely to patch up the openings, but to make the wall as solid as a party-wall should be.^'^ An injunction is also the appropriate remedy to prevent the erection of additional stories on a party-wall in violation of the agreement of the parties.^^ § 333. Injunction refused when party protected by lis pen- dens. Relief by injunction against a transfer of real estate by defendant which the plaintiff' seeks to prevent will ordi- 33 Barton v. Moffit, 3 Ore., 29. So., 308, 5 L. R. A., 298, 13 Am. 34 Mayer's Appeal, 73 Pa. St., 164. St. Rep., 60. 35 Dauenhauer v. Devine, 51 36 Dunscomb v. Randolph, 107 Tex., 480; Sullivan v. Graffort, 35 Tenn., 89, 64 S. W., 21, 89 Am. St Iowa, 531; Harber v. Evans, 101 Rep., 915. Mo., 661, 14 S. W., 750, 10 L. R. A., 37 Bartley v. Spanieling, 21 D. C, 41, 20 Am. St. Rep., 646; Duns- 47. comb V. Randolph, 107 Tenn., 89, 38 Calmelet v. Sichl, 48 Neb., 64 S. W., 21, 89 Am. St. Rep., 915; 505, 6T N. W., 467. Graves v. Smith, 87 Ala., 450, 6 324 INJUNCTIONS. [chap. vi. narily be refused when the effect of filing the bill, which op- erates as lis pendens, is to afford sufBcient protection against the transfer of the property pendente lite.^^ And upon a bill to obtain the surrender and delivery of a deed, and to restrain defendant from disposing of the land upon allegations of fraud, where it is not shown that defendant is insolvent, and the fraud is denied by the answer and affidavits, and the only danger to be feared is that defendant may sell the land, and thus make the purchaser a necessary party to the litigation, equity will refuse to enjoin, since the doctrine of lis pendens affords sufficient protection in such a case against a purchaser pendente lite^'^ § 334. Sale of purchase-money notes by vendor who has given bond for title. When the vendor of real property, who has only given a bond for title, the fee still remaining in him, has transferred the notes received by him for the purchase- money, the fact that he is liable as indorser upon the notes and the purchaser is insolvent, will not warrant an injunction against a sale of the property, when it is not shown that the land is an insufficient security, or that it has depreciated in value, or that any waste has been or is about to be eom- mitted.^i So one who has a vendor's lien upon land for un- paid purchase-money, and who afterward acquires the fee, a judgment lien having in the meantime attached to the land, can not restrain its sale under execution upon the judgment, since by giving proper notice of the existence of his lien his rights will be protected and a sale will be subject to his lien.42 §335. When partition enjoined; sale under execution not enjoined after partition. An injunction has been allowed to restrain defendant ironi proceedings for a partition of real 30 Smith V. Malcolm, 48 Ga., 343; 'i Williams r. Stewart, 56 Ga . Powell w. Quinn, 49 Ga., 523. 663. 40 Smith V. Malcolm, 48 Ga., 3-;3. '- Messmore r. Stephens. 83 Ind.. 524. ( ITAI'. VI.] AFFECTING KEAL PKOrERTY. 325 property until the repnyniont of jnirchase-money advanced by plaintiff for the purchase of defendant's interest. Thus, where complainant has paid the entire purchase-money upon a pur- chase of real estate, taking the title to himself and defendant jointly, upon the agreement of the latter to pay one-half of the purchase-money, and complainant has also paid taxes upon the premises and made valuable improvements thereon, he has been allowed an injunction to restrain defendant from proceeding with a partition suit until repayment of the amount due to complainant.*^ But the purchaser of real estate under a proceeding for partition takes it subject to the lien of exist- ing judgments, and in the absence of fraud he will not be allowed, after his purchase, to enjoin a sale of the premises under execution upon such judgments.** §336. Mechanics' lien proceeding, when not enjoined. Where, under the laws of a state giving a lien to mechanics for labor and materials furnished in the erection of buildings, the remedy for the enforcement of such lien is by an action at law, and equity has no jurisdiction to enforce or foreclose the lien, a court of equity will not enjoin a proceeding at law for the enforcement of such lien upon the application of another creditor claiming a lien of the same kind, merely be- cause such creditor claims priority in equity over the lien of defendants in the injunction suit. Such a case, it is held, presents no ground for equitable relief, and the parties will be left to pursue their legal remedies in the courts of law.*^ § 337. Dower proceeding-; rents and profits; claimant under administrator's sale. Upon a bill by an heir at law and de- visee under the will of a deceased testator to have the widow's dower determined, to warrant an injunction against a trans- fer of the property and a receiver of the rents and profits pendente lite, it is not sufficient to allege merely that the rents are in jeopardy, but it must also be shown how they are jeop- 43 Maloy V. Sloan, 44 Vt, 311. « Hall v. Hinckley, 32 Wis., 362. *4 Wood V. Winings, 58 Ind., 322. 326 INJUNCTIONS. [chap. VI. ardized. And in such case, in the absence of any allegation that the rents and profits of the realty supposed to be subject to dower will be lost by reason of the insolvency of those re- ceiving them, or that the plaintiff has not an adequate remedy at law for such of the rents as he ftaay be entitled to, the re- lief will be denied.^^ So where plaintiff, claiming title to realty under an administrator's sale, obtains an injunction against the heirs to restrain them from asserting title to the property, but fails to make out a satisfactory title to the premises, the injunction will be dissolved.^^ § 338, Effect of conveyance made by one enjoined. As re- gards the effect of a conveyance of real estate made by one who is enjoined from conveying, it is held that where defend- ant proceeds to execute a conveyance in defiance of an in- junction prohibiting him from so doing, the effect of the in- junction is only to render the conveyance inoperative so far as concerns the interest of the complainants in whose behalf the relief was allowed.^^ § 339. Judgment creditor not enjoined by legatees or de- visees. As between judgment creditors and devisees of a specific portion of the estate of a deceased debtor, equity will not usually interfere in behalf of the devisees. Thus, where a creditor has obtained a decree specifically authorizing a levy upon the estate that belonged to the debtor at the time of his death, in whosesoever hands the same may be, he wnll not be enjoined at the suit of specific legatees or devisees from levy- ing upon that portion of the estate devised to them, on the ground that the testator had set apart a particular portion of his estate for the payment of his debts. In such a case the legatees are regarded in equity merely as volunteers, whose rights ai-e subordinate to those of the judgment creditors."*** ■lo Knighton v. Young, 22 Md., 4s Greenwald v. Roberts, 4 359. Heisk.. 494. »T Casanave v. Spear, 23 La. An., ■»» Maxwell r. Maxwell, Charlt. 519. R. M., 462. CHAP. VI.] AFFECTING REAL PROPERTY. 327 Nor will one of several joint devisees of land be restrained from entering thereon and taking possession of a portion of the estate devised to them separately, where the injunction is asked by a tenant claiming under the other devisees.^*^ But a legatee entitled to a distributive share of an estate may have an injunction until the hearing to restrain the executor of the estate from levying an execution upon real estate, the proceeds of which if collected would be assets to which the legacy would attach.^i And where one of the heirs of an intestate received an advancement during the life of the deceased in full of his share of the estate, a sale of the intestate's land under a judg- ment against the heirs was enjoined.^- § 340. Writ of restitution not enjoined. Questions growing out of litigation concerning title to real property, and which are properly determinable in a legal forum, will not be recog- nized as the foundation for relief in equity against the pro- ceedings. And where, under a conviction of forcible entry and detainer, a writ of restitution is awarded the successful party, equity will not enjoin proceedings for the enforcement of the writ upon the ground that complainant in the injunction suit is the rightful owner of the land under an older title.-'*^ Nor will a writ of restitution be enjoined where no grounds of irreparable injury are shown, and where the real purpose of the bill is to quiet complainant's possession and to suppress future litigation concerning the property.^^ 50 Baldwin r. Darst, 3 Grat., 132. pressing future litigation at law 51 Dorsey v. Simmons, 49 Ga., by perpetual injunction. If it ap- 245. peared by the complaint and afR- 52 Dyer v. Armstrong, 5 Ind., 437. davit that the defendants were 53 Hamilton v. Hendrix's Heirs, doing or were threatening to do, 1 Bibb, 67. or were procuring to be done, or 5i Tevis r. Eilis, 25 Cal., 515. were suffering to be done, some Shaffer, J., delivering the opin- act in violation of the plaintiff's ion of the court, says: "The prin- rights respecting the subject of cipal purpose of this action is to the action and tending to render obtain a decree quieting the pos- the judgment ineffectual, or tend- session of the plaintiff and sup- Ing to the great and irreparable 328 INJUNCTIONS. [CIIAI-. VI. § 341. Judgment for breach of covenants, when enjoined. A court of equity may properly compel the purchaser of land to accept a good title tendered by the personal representatives of his grantor, who had sold with covenants of warranty, not- withstanding the purchaser has obtained judgment for the breach of covenants contained in his grantor's deed; and under such circumstances the court will award an injunction against the enforcement of the judgment.^^^ § 342. Entry under right reserved ; relief against penalty in deed of trust. An entry upon land under rights reserved to the grantor by the contract of sale will not of itself warrant the interference of equity. Thus, a vendor who has merely given a bond for conveyance with a provision that he may re- enter in case of default in payment of the purchase-money, will not be enjoined from re-entering if the purchaser is in de- fault.^*^ But the relief has been allowed against a stipulation in the nature of a penalty in the bond or deed of trust. Thus, where it was provided that in case of default of the debtor to pay the annual interest the principal should be deemed due and payable, the provision being construed in the nature of a penalty, relief has been allowed against its enforcement.''" § 343. Fruit trees and shrubbery; confusion of boundaries; tenants in common. An injunction is the proper remedy in behalf of a vendee in possession to restrain the vendor from the removal of fruit trees and ornamental shrubbery, notwith- standing vendor claims the right to such removal under a verbal reservation. Such improvements are considered as injury of the plaintiff, an injiinc- their purpose into execution, tion might go, staying the act in Should the defendants succeed i.i view of its consequences. But the their design, the remedies at law- complaint does not present a case would be speedy, adequate and of that impression. It charges, as complete. The order dissolving a ground for the injunction, that the injunction is affirmed." the defendants intend to disseize ■■■• Reese r. Smith, 12 Mo., 344. the plaintiff of his lands— that, •'•« Boyd r. Lofton, 34 Ga., 494. and no more; and asks that they f^" Mayo r. Judah, 5 Munf., 495. may be restrained from carrying ( ll.Vr. VJ.J AFFECTliXG HEAL i'KOPEKTY. 329 l)assing with the realty and the right of the purchaser will b<' protected in equity .^'^ It is, however, incumbent upon com- plainant to set forth clearly the facts and circumstances on which he relies for relief, and to warrant an injunction against proceedings at hiAV on the ground of confusion of boundaries complainant must allege the fact of such confusion and the circumstances producing it.^^ But an injunction may be granted to prevent the execution of a writ of habere faciaa possessionem, under a judgment in ejectment, until the true boundary line of the premises to be surrendered can be de- termined, when such line is in doubt and when the execution of the writ upon the boundary as claimed b}^ plaintiff in eject- ment would result in irreparable injury to plaintiff in the in- junction suit.^*^ § 344. Injunctions as between tenants in common. Relief by injunction is sometimes allowed between tenants in common for the purpose of preserving the estate and preventing serious injury. Thus, a judgment at law for the partition of real estate at the suit of some of the tenants in connnon may be enjoined by the other tenants upon an allegation that the partition can not be made without serious injury to the own- ers. And under suich circumstances the injunction should be continued to the hearing, that the court may upon the proofs decide whether the partition would be for the interest of the parties.''' But as between tenants in common of realty, equity will not enjoin one tenant from selling crops from the premises M^hen there is no such destruction of the estate as amounts to waste, even after a decree for a partition of the premises.''- And pending a proceeding in equity for partition and before its completion, the parties being tenants in common until such completion, equity will not interfere by injunction with the ■•« Smith r. Price, 39 111., 28. '=1 Gash r. Ledbetter, 6 Ired. Eq.. ••9 Foster, Ex parte, 11 Ark., 304. 183. eo Jones v. Brandon, 60 Miss., •;- Bailey /■. Hobson, L. R. 5 Ch., 556. 180. 330 INJUNCTIONS. [chap, VI. existing possession of the premises, nor will it enjoin one of the co-tenants from proceeding to collect his portion of the rent due prior to the partition.*''^ g^i^ ^ plaintiff claiming a moiety of an estate as a tenant in common with the defendant, and being entitled to a receiver of the rents and profits of the moiety claimed, may have an injunction to prevent de- fendant from receiving such rents and profits.^'* And the co-owner of shade trees standing upon the boundary line be- tween his and the other co-owner's property is entitled to an injunction to restrain the latter from cutting down such trees.^^ And where the deed under which tenants in common hold title to real estate provides that an alley extending across the premises shall be kept open for the benefit of adjoining owners, one of the tenants in common may enjoin the obstruc- tion of the alley by the other. *"^ §345. Sale of trust property, when enjoined; waiver of lien by judgment creditor. "Where a judgment creditor is at- tempting to enforce his judgment by a sale of real estate con- veyed by the debtor in trust before the debt on which the judgment was rendered was incurred, an injunction may be allowed to restrain the sale until the question of whether the trust was created in fraud of creditors can be determined.*^'^ And where the creditor may collect his judgment out of prop- erty which his debtor has not conveyed, but refuses or fails to do so, he may be enjoined from proceeding with the en- forcement of his judgment against property which has passed to a grantee of the debtor, and as to which the judgment creditor has waived his lieii.''^ § 346. Commissioner in chancery, when enjoined from sale. Courts of chancery have power to restrain the proceedings G'! Hughes r. D'Arcy, I. R. 8 Eq., 484, 32 Am. St. Rep., 305. 71. Gaskins v. Peebles, 44 Tex., lo Mulry v. Norton, 100 N. Y., 390. 424, 3 N. E., 581. V Conway, Ex parte, 4 Ark.. 302. nHadfield r. Bartlett, 66 Wis., «Klinck r. Black. 14 S. C. 241. 634. '■> Romero r. Munos, 1 New Mex- ico, 314. CHAT. VI.] AFFEC'TINC ItlCAL ritOI'KItTY. 337 recovery of land, takes possessjion of part and resists its re- occupation by defendant, the latter- may be allowed an in- junction to restrain plaintiff from further interference until the hearing.^- And where the owner of land sells a mill sit- uated thereon, upon condition that the title shall not pass until payment is fully made, the purchaser may be enjoined from removing the mill beyond the state, his insolvency being shown.'-' And where the plaintiff has obtained a judgment for the possession of land in an appropriate action, an injunction will lie to restrain the defendant fi'om interfering with the execution of a writ of possession.^* § 357. Loss of conveyance ; proceedings to which plaintiff is not a party. Where, from the peculiar circumstances of the case, it is impossible for defendant to establish his defense at law in an action to recover possession, the strictness of the rule may also be departed from. Thus, the loss of one con- veyance in a chain of title which is necessary to establish the defense to the action will warrant equity in restraining proceedings, as well upon the ground of accident as to pre- vent a cloud upon title. Under such circumstances defendant being prevented by accident from perfectl}^ and adequately as- serting his title at law, he is entitled to the aid which equity alone can give.'-'* So where complainant, without fault upon his part, has had no opportunity of being heard at law, he may have the aid of equity to protect him in his possession as owner of the premises. Thus, a perpetual injunction will be allowed against the execution of a writ of liahere facias possessionem against the pi-emises of one who was not a party to the litigation.'*' And one who is in the quiet possession of real estate, claiming title thereto, may have an injunction to 12 Horton v. White, 84 N. C, 297. i« Goodnough v. Sheppard, 28 13 Coe V. Johnson, 93 Ind., 418. 111., 81; Panton r. Manley, 4 14 Hawkins r. McDougal, 126 Bradw., 210; Charter Oak Life Ins. Ind., 539, 25 N. E., 708. Co. r. Cummings. 90 Mo., 267, 2 S. 15 Butch r. Lash, 4 Iowa, 215. W., 397. 22 338 INJUNCTIONS. [chap. ti. restrain others from dispossessing him by means of process growing out of litigation to which he was not a party. ^''' § 358. Neglect to execute decree for conveyance ground for injunction. Where proceedings have been instituted in a court of equity to establish the title to real estate, and a de- cree has been rendered that defendant make a conveyance vesting the legal title in complainant, neglect to execute such decree will warrant a mandatory injunction to deliver posses- sion. In such case equit}^ proceeds upon the principle that its decree, not having been complied with, operates as a convey- ance, and the right being sufficiently established an injunc- tion is a proper remedy for its enforcement ; otherwise com- plainant might be compelled to resort to proceedings in eject- ment to obtain the possession to which he is alread}^ entitled by the decree, and thus be greatly delayed and embarrassed.^^ § 359. Possession without legal title ; remedy at law. In general equity will not interpose to prevent the enforcement of a legal right except upon a clear and satisfactory showing of a right superior to that which it is sought to restrain. In accordance with this principle a party in possession of real estate, but without legal title, has no sufficient equities as against the legal owner to enjoin a writ of restitution which has been granted him for the purpose of obtaining possession 1" Banks V. Parker, 80 N. C, 157; would disgrace our laws and ad- peans v. Bowden, 20 Fla., 905; ministration of justice if, after a Williamson v. Russell, 18 West Va., title to land has been established 612. by the adjudication of a court, 18 Garretson v. Cole, 1 Har. & J., there could be no way of obtaining 373. It is proper to remark that possession but after obtaining the decision of the chancellor in judgment in ejectment." So it is this case rests partially upon an said by an eminent jurist that act of legislature. Hanson, Chan- "Courts of equity also interfere cellor, observes: "An injunction and effectuate their own decrees for possession is not a new thing in many cases by injunctions, in In a court of equity. It has long the nature of a judicial writ or been used in England; it is di- execution for possession of the Tected in certain cases by the property in controversy; as for aforesaid act of assembly; and it example, by injunctions to yield CHAP. YI.] AFFECTING REAL PROPERTY. 339 of his premises.^ '^ And to warrant a court of equity in en- joining proceedings to recover possession of realty it must clearly appear that he who seeks the relief is remediless by the usual course of proceedings at law. This not appearing, and it not being shown that the parties against whom the injunction is sought are insolvent, the writ will not be al- lowed. ^^ § 360. Remedy at law a bar to injunction. The general principle underlying the entire jurisdiction of equity by in- junction, that the relief will not be granted where adequate remedy may be had at law, applies with equal force to cases where relief is sought in aid of the possession of real prop- erty. Wherever, therefore, sufficient redress may be had in the courts of law, parties will be left to pursue their remedy in a legal rather than an equitable tribunal.-^ Thus, where parties are in possession claiming as devisees under a will which has been admitted to probate, equity will not, pending an appeal from the decision of the probate court, aid an ad- verse claimant by injunction to remove them, since full and adequate redress may be had at law.^^ So where the object of an injunction bill is merely to obtain possession of land upon which defendant has entered and committed trespasses and removed the products of the land, the relief will be denied, the remedy at law being ample and complete for the recovery up, deliver, quiet, or continue the has been applied, not merely to the possession, followed up by a writ lands in controversy in the cause, of assistance. Injunctions of this but also to other lands of the sort are older than the time of party." 2 Story's Eq., § 959. Lord Bacon, since, in his Ordi- is Boinay v. Coats, 17 Mich., 411. nances, they are treated as a well 20 Tomlinson 0. Rubio, 16 Cal., known process. Indeed, they have 202. been distinctly traced back to the 21 Schlecht's Appeal, 60 Pa. St, reign of Elizabeth and Edward 172; Pfeltz v. Pfeltz, 14 Md., 376; the Sixth, and even of Henry the Tomlinson v. Rubio, 16 Cal., 202; Eighth. In some respects they Tevis i\ Ellis, 25 Cal., 515. bear an analogy to sequestrations; 22 Schlecht's Appeal, 60 Pa. St., but the latter process, at least 172. since the reign of James the First, 340 INJUNCTIONS. [chap. VI. of the premises.23 And one who is in possession of real estate can not enjoin another not in possession from bringing a threat- ened action at law to obtain such possession, even though it be alleged that defendant has no title or right of possession in the property, since full redress may be had in defense of such threatened action at law when instituted.^^ §361. Fraudulent purchase at sheriff's sale. As we have already seen, he who seeks the aid of equity for protection in the possession and enjoyment of real property must make a clear and satisfactory showing of his right in order to entitle himself to protection by injunction. But where the gravamen of the case is that defendant has fraudulently purchased com- plainant's real estate at a sheriff's sale for a merely nominal consideration, it is a sufficient compliance with the rule if complainant states his right or interest in such manner as to authorize him to complain of the fraud and to obtain relief against it.-'' § 362. Equity will not correct errors at law; heirs at law and devisee. An injunction will never be granted for the mere purpose of correcting irregularities and mistakes in proceed- ings at law which may be remedied in the ordinary tribunals. And where the heirs at law have brought suit to recover pos- session of real estate, equity will not enjoin their proceedings at the instance of a devisee under a lost will which has been insufficiently proven. The proper remedy in such a case is for the devisee to retrace his steps and to correct his errors in the probate court where they were made, since equity will not sit in review of the errors and irregularities of other tribunals.-*' § 363. Effect of long and peaceable possession. Quiet and uninterrupted possession of land for a long period of years 23 Pfeltz V. Pfeltz, 14 Md., 376. this case was dissolved on thf 24 Earle's Admr'x v. Hale's ground ttiat the answer fully Adm'r, 31 Ark., 473. denied the equity of the bill. ^•'•Outcalt /'. Disborough, 2 Green -''Clarke /•. Clarke, 7 R. I., 45. Ch., 214. But the injunction in CHAP. VI.] AFFECTING KEAL PROPERTY. 341 constitutes strong ground for the interference of equity to protect the owner in the possession and enjoyment of his property against unauthorized disturbance and interruption without due process of law. And where one has been in the peaceable and uninterrupted enjoyment of his premises for more than twenty years, and a municipal corporation, under pretense that his improvements encroach upon a public high- Avay, enters upon or disturbs the owner in such possession, an injunction may be awarded until the corporation shall have- established its right to the land in question by due course- of law.^^ So where property has been in the possession and under the management of defendant for a long series of years, equity will be reluctant to interfere with such possession by the appointment of a receiver and the granting of an injunc- tion in limine. '^^ And when plaintiff's title and right to possession have been established at law after a long series of vexatious litigations, but defendant still asserts title, inter- feres with plaintiff's title and possession, continues to make leases and sales of portions of the property and commits waste, a proper case is presented for relief by injunction.^f' So when defendant's interest in land has been sold under foreclosure, and the purchaser has received a writ of assistance, but de- fendant has again taken possession after service of such writ, he may be restrained from continuing to occupy the premises.^** 27 Varick v. New York, 4 .Johns. New York can not be permitted Ch., 53; Manchester Cotton Mills without due process of law to enter V. Town of Manchester, 25 Grat., upon the possession of the plain- 825. The grounds upon which tiff, and pull down buildings, the jurisdiction rests in such fences, etc., under their right to cases are laid down by the chan- regulate highways." See also chancellor in Varick v. New York, Manko v. Borough of Chambers- 4 Johns. Ch., 53, as follows: "The burgh, 10 C. E. Green, 168. principle upon which the injunc- -'* Skinner's Company v. Irish tion so modified is to be upheld is. Society, 1 Myl. & Cr., 162. that after a claim of right accom- -'n Caro r. Pensacola City Co., 19 panied with actual and constant Pla., 766. possession for twenty-five years so Ten Eyck i\ Sjoburg, 68 Iowa, and upwards, the corporation of 625, 27 N. W., 785. 342 INJUNCTIONS. [chap. VI. § 364. Fraudulent conduct by defendant. Fraudulent con- duct upon the part of the defendant whom it is sought to enjoin has also been recognized as an additional ground for equitable relief by injunction in cases affecting the title to or possession of real property. Thus, where complainant by his bill alleges ownership and title in himself to the premises in controversy, and that defendant, the former owner, has by fraud obtained the title deeds and muniments of title and has instituted proceedings to recover possession of the premises, a proper case for an injunction is presented.^i And where a father had made a deed conveying real estate to his daugh- ter, with the understanding that it should take effect upon his death, and that he should remain in possession during his life- time, an injunction was allowed to prevent the taking of pos- session under the deed, or disturbing the father in his posses- sion during his life-time.^- § 365. Tender of purchase money at illegal sale; injunction of state court to prevent possession under sale under judgment in United States court. Where the relief is sought for the pur- pose of preventing the disturbance of complainant in his pos- session of real estate by a purchaser under an illegal sale made ■under judicial process, it is not necessary that complainant should first tender to the purchaser the amount of his purchase money as a condition to obtaining relief.^^ It is, however, exceedingly questionable whether an injunction from a state court can be allowed to have the effect of preventing a pur- chaser of lands at a sale under a judgment of a United States court from receiving possession at the hands of the United States marshal, the bill being filed by one claiming title to the premises as against the defendant in the judgment under which the sale was had.^* :'i Worthy v. Tate, 44 Ga., 152. •"■* Paramore v. Persons, 57 Ga., ■•!2 Alsop /;. Eckles, 81 111., 424. 473. '■'■■^ Drouet r. Lacroix, 28 La. An., 126. CHAP. VI.] AFFECTING HEAL PROPEKTY. 343 § 366. When defendant not enjoined from leasing. When defendant is in possession of the property in controversy, under a claim of right or title as against complainant, who also asserts title, but there is no privity of estate between the parties, defendant will not be enjoined from leasing the prem- ises upon the ground of preventing a cloud upon title.^^ §366 a. Receiver's possession protected by injunction. A receiver who is appointed to take charge of real estate, pend- ing a litigation as to the title, is entitled to an injunction to protect his possession. And he may, in such case, enjoin an attempt to destrain for rent when the matter may be heard and determined in the suit in which he was appointed re- ceiver 36 35 Spofford V. Bangor & B. R. Co., 66 Me., 51. As to the right of a claimant under the pre-emption laws of the United States to be protected by injunction from be- ing dispossessed of the land claimed, see Colwell v. Smith, 1 Wash. Ty. N. S., 92. 30 Marshall v. Lockett, 76 Ga., 289. 344 INJUNCTIONS, [chap, VI. m. Judicial Sales under Execution against Third Person. § 367. Want of title in judgment debtor not usually ground for in- junction. 368. Questions of title should be tried at law. 369. Distinction between legal and equitable title. 370. Distinction between sales of personalty and realty. 371. Relief allowed against sales of trust property. § 367, Want of title in judgment debtor not usually ground for injunction. It not infrequently happens that sales of real estate are attempted under judicial process against one who has no title to the property levied upon. "While the cases ■ \ upon this subject are far from reconcilable, the clear weight of authority is in support of the proposition that, in the ab- sence of fraud or gross injustice and irremediable injury, courts of equity will not entertain jurisdiction in restraint of judicial sales of real estate under executions against third parties having no title to the property sold. The rule as thus stated is but a corollary of the proposition that equity will not grant relief where ample redress may be had at law, and the injuries resulting from a sale of one's property under exe- cution being generally remediable in courts of law, such sales will not usually be enjoined.^ Thus, a sale of lands under exe- 1 Hall V. Davis, 5 J. J. Marsh., Gatewood v. Burns, 99 N. C, 357, 290; Watkins r. Logan, 3 Monr., 6 S, E., 635; Bostic v. Young, 110 21; Bouldin i: Alexander, 7 Monr, N. C, 766, 21 S. E., 552. See also 425; Coughron v. Swift, 18 111., Shalley r. Spillman, 19 Fla., 500. 414; Freeman i:. Elmendorf, 3 But see, contra, Brummel v. Hurt, Halst. Ch., 475, affirmed on appeal 3 J. J. Marsh., 709; Downing v. to the Court of Errors, lb., 655; Mann, 43 Ala., 266; McCulloch v. Henderson v. Morrnl, 12 Tex., 1; Hollingsworth, 27 Ind., 115; Bach Carlin v. Hudson, lb., 202; Wil- r. Goodrich, 9 Rob. (La.), 391: son r. Hyatt, 4 S. C, 369; Whit- Budd r. Long, 13 Fla., 288; Scobey man r. Willis, 51 Tex., 421; Same r. Walker, 114 Ind., 254, 15 N. E., r. Same, lb.. 429; American D. & 674; Wilhelm r. Woodcock, 11 I. Co. r. Trustees, 35 N. J. Eq., 181; Ore., 518; Bishop v. Moorman, CHAP. VI.] AFFECTING REAL PROPERTY. 345 cution will not be enjoined at the instance of a third person claiming title who alleges no fraud and does not show that his rights will be prejudiced or that gross or irreparable mischief will result from allowing the sale to proceed. - § 368. Questions of title should be tried at law. In suppoi-t of the rule as above laid down it is to be observed that ques- tions of title are properly triable in a legal rather than an equitable forum, and no departure from the rule will be al- lowed except in cases of fraud or irreparable injury.-' And where a sheriff upon an execution against a judgment debtor is proceeding to sell real estate, the title to which is in dis- pute and which is claimed by another person, a court of equity will not enjoin, there being no special equities requiring a departure from the rule of leaving the parties to their remedy at law.^ Even where fraud is relied upon as the founda- tion for the relief the party complaining must show a definite injury to himself as the result of the fraud. And the pur- chaser of lands is not entitled to restrain their sale under a judgment obtained by fraud against his grantor without show- ing affirmatively that he will be injured by such sale.-'"' § 369. Distinction between legal and equitable title. In the application of the rule a distinction has been drawn between eases where the parties aggrieved possess the legal, and where 98 Ind., 1. In Bach v. Goodrich, 9 the sale would operate as a cloud Rob. (La.), 391, and McCuUoch v. upon the owner's title and would Hollingsworth, 27 Ind., 115, the affect the value of his property doctrine is laid down that the ob- in a manner not susceptible of ligation of a grantor of real estate measurement or redress in an ac- with covenants of warranty to de- tion at law. fend the title of his grantee, con- - Henderson *. Morrill, 12 Tex., stitutes such an interest as to 1; Carlin r. Hudson, lb., 202. make him a proper party to enjoin ••■ Freeman r. Elmendorf, 3 Halst. a sale of real estate to satisfy an Ch., 475, affirmed on appeal, lb., execution against a third person. 655; Wilson v. Hyatt, 4 S. C, 369. And in Budd v. Long, 13 Fla., 288, 4 Freeman r. Elmendorf, 3 Halst. it is held that an injunction is the Ch., 475, affirmed on appeal. lb., appropriate remedy in the class of 655. cases under consideration, because ^ Marriner v. Smith, 27 Cal., 649. 346 INJUNCTIONS. [chap. VI. they possess the equitable title to the property about to be sold. The distinction is based upon the fact that in the case of legal ownership the remedy at law is ample, but where the title which it is sought to protect is merely an equitable title the courts of law can not give adequate redress; hence equity will entertain jurisdiction to grant relief against the sale in behalf of complainants having only an equitable title to the premises.*' Thus, plaintiff having an equitable title by pay- ment of purchase money and taking possession, but not yet having acquired the legal title by conveyance, may enjoin a sale of the premises under a subsequent judgment against his vendor."^ § 370. Distinction between sales of personalty and realty. It may, at first sight, appear difficult to reconcile the general doctrine as here discussed and illustrated, denying relief by injunction against the sale of one's real estate under execu- tion against a third person, with the rule as previously stated, permitting such relief for the prevention of the sale of one's personal property under execution against another.^ And, indeed, the authorities in sup]5ort of the divergent rules thus established in the two classes of cases are not wholly recon- cilable. It is to be noticed, however, that the courts in grant- ing preventive relief against the sale of personal property under execution against a third person rest their decisions largely upon the uncertainty and insufficiency of the legal rem- edy for damages in such cases, as well as upon the necessity of extending the relief for the retention and preservation of the property in specie.'' While in cases of the sale of real property e Orr v. Orr, 3 J. J. Marsh., 269, 74; Hardy v. Broaddus, 35 Tex., 7 Parks v. People's Bank, 97 Mo., 668 ; McCreery v. Sutherland, 23 130, 11 S. W., 41. Md., 471; Chappell v. Cox, 18 Md., s See the question discussed as 513; Amis r. Myers, 16 How., 492 to sales of personalty, chapter HI, Poincy v. Burke, 28 La. An., 673 ante, § 119 et seq. Lewis v. Daniels, 23 La. An., 170 ■■• See Wilson v. Butler, 3 Munf., Deville r. Hayes, 23 La. An., 550 559; Watson r. Sutherland, 5 Wal., Walker r. Hunt, 2 West Va 491 CHAP. VI.] AFFECTING REAL PROPERTY. 347 the possession is not ordinarily divested by a sale under execu- tion, and the purchaser is left to the ordinary remedies for obtaining such possession. And the question of title to realty being matter of record, full redress may usually be had at law in resisting an action by the purchaser to obtain possession after a sale of real property under an execution against a third person having no title to such property.^" § 371. Relief allowed against sales of trust property. In cases where the property is affected by a trust the tendency of the courts is toward a departure from the rule of non-inter- ference as above stated, and to allow relief by injunction to prevent a sale of the trust estate. And equity may properly enjoin a sale under execution of property held by the judg- ment debtor in trust for a third person, and which has passed by transfer from the trustee to the beneficiary and from him to plaintiff by purchase.^ ^ So where a mother holds real prop- erty in trust for herself and her minor children, and a levy is made upon the property under a judgment against the mother alone, it is proper to enjoin a sale under the execution until the interest of the various cestius que trustent may be estab- lished in the premises.^- So, too, where real estate is held in trust for a married woman and her children, and judgment is obtained against the trustees for alleged advances to one of the cestius que trustent, the judgment being general and not specifying the property to be bound for its payment, equity may enjoin a levy of the execution upon the trust estate.^ -"^ And the sale of a leasehold interest in realty, under a judg- ment against the lessee, may be enjoined by the owner of the fee when the lessee holds title as a naked trustee, having no beneficial interest, and this fact being known to the judgment McFarland v. Dilly, 5 West Va., n Hollingsworth v. Trueblood, 135; Baker v. Rinehard, 11 West 59 Ind., 542. Va., 238; Ford v. Rigby, 10 Cal., 12 simms r. Phillips, 51 Ga.. 433. 449. 13 Clinch v. Ferril, 48 Ga., 365. 10 See Southerland r. Harper, 83 N. C, 200. 348 INJUNCTIONS. [chap. VI. creditor.! ■* So if the vendor of real estate retains the h^gal title as security for notes given for the unpaid purchase money, his sale of such notes is regarded as transferring the lien or security of the purchaser, and the interest or title of the ven- dor in the real estate is thereafter merely that of a trustee under a naked trust. And if, under such circumstances, judg- ment is recovered against the vendor after his sale of the property, a levy under execution upon such real estate may be enjoined upon the application of the purchaser, he having received possession under his contract of purchase and hav- ing ever since remained in possession. ^'^ 14 South Presbyterian Church v. is Jackson v. Snell, 34 Ind., 241. Hintze, 72 Mo., 363. CHAP. VI.] AFFECTING REAL PROPERTY. 349 IV. Cloud upon Title. § 372. Foundation of the jurisdiction. 373. Test to be applied. 374. Judgment already satisfied. 375. Distinction as to whether defect does or does not appear of record. 376. Records of United States land office considered as foreign. 377. Remedy at law bars injunction; general illustrations of the ju- risdiction. 378. Negligence in examining title a bar to relief. 379. Sale of lands under execution against former owner enjoined. 380. Administrator denied relief; jurisdiction cautiously exercised against strangers. 381. Administrator's sale, when enjoined. § 372. Foundation of the jurisdiction. The prevention of a cloud upon title is a salutary branch of the jurisdiction of equity, recognized by all the authorities, and founded upon the clearest principles of right and justice. The jurisdiction by injunction to prevent a cloud upon title is closely analo- gous to the well settled jurisdiction of courts of chancery for the removal of cloud upon title ; and the reasoning which sup- ports the jurisdiction in the latter case would seem to apply with equal if not greater force m the former. It seems, there- fore, to follow as a necessary consequence that if the aid of equity may be invoked to remove a cloud upon title to realty, it may with equal propriety be exerted to enjoin such illegal acts as will necessarily result in a clouded title.^ And it may 1 Pettit i.K Shepherd, 5 Paige, 28, 61 N. W., 77; Kirwin v. Mur- 493; Christie v. Hale, 46 111., 117; phy, 28 C. C. A., 348, 83 Fed., 27.5. Merriman v. Polk, 5 Heisk., 717; A contrary doctrine was affirmed Irwin V. Lewis, 50 Miss., 363; in Armstrong v. Sanford, 7 Minn., Hinckley v. Haines, 69 Me., 76; 49; Montgomery v. McEwen, 9 Oakley v. Trustees, 6 Paige, 262; Minn., 103; but these cases seem Roth V. Insley, 86 Cal., 134, 24 Pac, to have been overruled in Conkey 853; Gardner v. Terry, 99 Mo., v. Dike, 17 Minn., 457. As to the 523, 12 S. W., 888, 7 L. R. A., 67; jurisdiction of equity to grant a Beaser v. City of Ashland, 89 Wis., perpetual injunction for the pur- 350 INJUNCTIONS. [chap. VI. be asserted as a general proposition, that a sale of lands under execution, which would confer no title upon the pur- chaser, and whose only effect would be to cloud the title of others, will be enjoined.- § 373. Test to be applied. It is difficult to establish any exact test which will be applicable in all cases to determine what constitutes such a cloud upon title as to authorize a court of equity to interfere for its prevention. It has been held, however, that if the sale or conveyance which it is sought to restrain is such thct in an action of ejectment brought thereunder the real owner of the property would be obliged to offer evidence to defeat a recovery, then such a cloud would be raised as to warrant the interference of equity.^ Upon the other hand, if under the levy and sale a purchaser would not acquire even an apparent title to the premises, the execution being against one who had no title, so that the purchaser in an action of ejectment could not recover even upon his own pose of quieting a title which has been fully established, see Wick- liffe r. Owl gs, 17 How., 47. And see, ante, § 248. 2 Bank of U. S. v. Schultz, 2 Ohio, 471; Norton v. Beaver, 5 Ohio, 178; ghristie v. Hale, 46 111., 117; BennetL v. McFadden, 61 111., 334; Sharpe v. Tatnall, 5 Del. Ch., 302; Vogler v. Montgomery, 54 Mo., 577; Uhl v. May, 5 Neb., 157; Key C. G. L. Co. v. Munsell, 19 Iowa, 305; Pixley r. Huggins, 15 Cal., 127; Porter v. Pico, 55 Cal., 165; Roth v. Insley, 86 Cal., 134, 24 Pac, 853; Chase v. City Treas- urer, 122 Cal., 540, 55 Pac, 414; White v. Espey, 21 Ore., 328, 28 Pac, 71; Dietz v. City of Neenah, 91 Wis., 422, 64 N. W., 299, 65 N. W., 500; McConnaughy v. Pen- noyer, 43 Fed., 339. 'And see Pet- tit )'. Shepherd, 5 Paige, 493; Oak- ley V. Trustees, 6 Paige, 262. It is not necessary that the sale should divest complainant of his title to warrant equity in interfering; it is sufficient that it simply operates to cloud his title. And the fact that the levy was only made upon the "right, title and interest" of complainant in the injunction suit will not avail against granting the injunction. Key C. G. L. Co. v. Munsell, 19 Iowa, 305. And a court of equity, in removing a cloud upon title to real estate, may enjoin the defendant from set- ting up or asserting his claim in the future. Craft v. I., D. & W. R. Co., 166 111., 580, 46 N. E., 1132. 3 Pixley r. Huggins, 15 Cal., 127; Lick r. Ray, 43 Cal., 83; Roth v. Insley, 86 Cal., 134, 24 Pac, 853; Chase v. City Treasurer, 122 Cal., 540, 55 Pac, 414; Rea v. Long- CHAP. VI.] AFFECTING REAL PROPERTY. 351 showing, and defendant in ejectment would not be put to proof to defeat the action, an injunction will not lie.-* § 374. Judgment already satisfied. An attempt to enforce a judgment already satisfied may sometimes cast such a cloud upon the title of the judgment debtor as to warrant equity in interfering for the protection of other creditors whose claims are established by judgment. Thus, where a prior judg- ment creditor has received full payment and satisfaction of his judgments, but still keeps them on foot and attempts to enforce executions thereunder to the prejudice of a junior creditor, he thereby casts such a cloud upon the title to the debtor's estate as to lay the foundation for an injunction in behalf of the junior creditor.^ So the owner of land may enjoin its sale under execution against his grantor upon a judg- ment which was satisfied before complainant purchased the premises.^ § 375. Distinction as to whether defect does or does not appear of record. In the exercise of the jurisdiction for the prevention of cloud upon title, a distinction is drawn between eases where the invalidity or illegality charged as the cloud is shown by evidence dehors the record, and where it appears upon the face of the proceedings themselves. And while in the former case the relief is freely granted, in the latter courts of equity will not interpose.'^ Thus, where a question concerning the partition of lands has been referred to arbi- tration, if the award for the partition is invalid upon its face, no such cloud will result as to warrant equity in en- joining the proceedings.^ So where an execution is abso- street, 54 Ala., 291; Gregg v. San- « Whitehill v. Fauber, 97 Ind., ford, 12 C. C. A., 525, 65 Fed., 151; 169. McConnaughy v. Pennoyer, 43 Fed., " Meloy v. Dougherty, 16 Wis., 339. 269; Hanson v. Johnson, 20 Minn., 4 Shalley v. Spillman, 19 Fla., 194; Browning v. Lavender, 104 500; Archbishop of San Francisco N. C, 69, 10 S. E., 77. V. Shipman, 69 Cal., 586, 11 Pac, » Meloy v. Dougherty, 16 Wis., 343. 269. 5 Shaw V. Dwight, 16 Barb., 536. 352 INJUNCTIONS. [chap. VI. lutely void, as appears upon the face of the record, a sale thereunder does not constitute such a cloud upon the title as to warrant an injunction.^ So the sale of real estate under a judgment for a delinquent special assessment will not be enjoined as casting a cloud upon title upon the ground that the judgment of confirmation was not properly entitled, since such defect fully appears of record upon the face of the pro- ceedings.^ ^ And to justify the relief in this class of cases, it is held that the title of the party complaining being shown as it appears of record, the cloud to be removed must be apparently a good title as against that of complainant, though really defective by reason of something not appearing of record. "Where, therefore, the cloud which it is sought to remove can only be shown to be a good title by leaving that of complainant out of the question, an injunction will be refused.^ ^ Nor will a sale of real estate under execution be enjoined upon the ground that the property is not subject to execution.^- ^q(J gn injunction will not lie to prevent a sale of land under execution at the suit of one who has no further interest in the premises.^^ But the owner of real estate may enjoin the recording of an instrument which is not entitled to record and which would cast a cloud upon his title.i* §376. Records of United States land office considered as forei^. But while the general proposition is unquestioned that equity will not interfere to prevent a cloud upon title when the invalidity or illegality relied on appears of record, and so can not deceive or mislead,^^ the records within the " Hanson v. Johnson, 20 Minn., 12 Bristol r. Hal'yburton, 93 N. 194. C, 384. '" Craft r. Kochersperger, 173 13 Small r. Somerville, 58 Iowa. 111., C17, 50 N. E., 1061. 362. 12 N. W., 315. "Moore v. Cord, 14 Wis., 213: 1^ Walter r. Hartwig, 106 Intl., Gamble v. Loop, 14 Wis., 465. See 123, 6 N. E., 5. also Lehman v. Roberts, 86 N. Y.. '"■ Heussler r. Thomas, 4 Mo. 232. App., 463. CHAP. VI. J AFFECTIXU REAL PROPERTY. 353 meaning of the rule are the public records of the county or state within which the lands are situated, and of which pur- chasers are bound to take notice, and the records of a United States land office are treated as foreign records within the meaning- of the rule. Although, therefore, the invalidity relied upon appears of record in a United States land office, but not of record in the county where the land is situated, and the lien or interest claimed by defendant is apparently good as against plaintiffs' title and hence constitutes a cloud upon their title, an injunction may be allowed.^*' § 377. Remedy at law bars injunction; general illustrations of the jurisdiction. Since the interference for the prevention of a cloud upon title grows out of the inadequacy of the remedy at law, it follows that where special legal remedies are provided sufficiently efficacious to meet the exigencies of the case and to prevent the injury complained of, no injunction will be allowed, and the parties will be left to pursue the remedy provided at law. Thus, a sheriff's sale of real estate under execution will not be enjoined on the ground that it would pass no title and might impair the rights of the real owner by clouding his title, where under the peculiar judicial system of the state ample remedy may be had at law.i'^ And i« Gile V. Hallock, 33 Wis., 523. no interest, would cast a hurtful 17 Drake v. Jones, 27 Mo., 428; doubt on the plaintiff's title, Kuhn V. McNeil, 47 Mo., 389; Arch- which he could only remove by bishop of San Francisco v. Ship- evidence in pais, and the pur- man, 69 Cal., 586, 11 Pac, 343. chaser could stand by indefinitely Drake v. Jones, 27 Mo., 428, was and refuse to litigate his right un- an application for an injunction til the evidence to repel it might to restrain a sheriff's sale of real be lost and the plaintiff less able estate under an execution on the to contest it, and in the mean- ground that it would pass no title time the true owner be unable to and might impair the rights of the sell and afraid to improve, and real owner by clouding his title, thus be denied the full dominion The relief was denied, the court, over his property, then the exer- Richardson, J., saying: "If the cise of the power of the court by effects of a sale under the defend- the writ of injunction would be ant's execution, whilst it passed properly invoked as a means of 22 354 INJUNCTIONS. [chap. VI. where a bill is filed against a party in possession of lands under tax deeds to have such deeds declared void as a cloud upon the title, and praying an injunction to restrain the com- mission of waste, complainant not being in possession, and not having- established his title to the premises at law, and showing no privity of estate and no action of ejectment pend- ing to try the title, the bill will be dismissed for want of equity.^ ^ A bona fide purchaser of real estate for a valuable consideration may restrain a sale of the property under exe- cution when he has purchased after the rendition of the judg- ment but before the execution was delivered to the sheriff, the judgment not being a lien upon the property, since such sale would operate as a cloud upon his title.^^ And a subsequent bona fide purchaser may enjoin a sale of realty under a judg- ment, when the lien created by statute in favor of the judg- ment creditor has expired by lapse of time without a sale being had.-*^ And where judgment creditors have stipulated in writing that they will not enforce their lien against cer- tain real estate of the defendant, it has been held that subse- quent attempts to enforce the lien against the property in violation of the agreement might be enjoined.-^ But one who preventing injury and of precau- § 62.) * * * Several of the au- tionary justice. But our law has thorities cited from other states disarmed a person having no title as to the power to enjoin in cases of the power by false clamor to like the present one, seem to be injure the title of another in that in point; but our system is differ- way. In the first place provision ent from theirs, and we think that is made with minute particularity sound policy requires us to deny for perpetuating testimony; and the relief the plaintiff seeks in the then again, if the plaintiff is out form and at the time it was of possession he may immediately asked." And a similar doctrine was bring his ejectment; but if he is held in Kuhn v. McNeil, 47 Mo., in possession, and wishes to si- 389. lence an adverse claimant, he may is Blackwood v. Van Vleet, 11 file a petition and compel him to Mich., 252. bring an action to try the title, or lo Martin r. Hewitt, 44 Ala., 418. be forever barred from claiming 20 Riggin v. Mulligan, 4 Gilm.. 50. any right or title adverse to the 21 Reily v. Miami Co., 5 Ohio, petitioner. (R. C. 1855, p. 1241, 333. CHAP. VI.] AFFECTING REAL PROPERTY. 355 holds a prior lien upon real estate will not be allowed to r^njoin a subsequent judgment creditor from enforcing his judgment by execution, since a sale under such execution would not impair or defeat the prior lien, but would leave it at law and in equity as if such sale had never taken place. 22 Where land has been improperly assessed for benefits arising from the opening of streets, the commissioners having pro- ceeded irregularly and illegally in condemning the property, a court of equity may interpose by injunction for the purpose of preventing a cloud upon title, such a case being properly distinguishable from a sale of personal property where ample remedy may be had at law.^s But an injunction will not be granted to restrain the issuing of a patent for lands where such patent can not by any possibility cast a cloud upon com- plainant's title, the lands in question being tide lands and not patentable, although the patent if issued would be invalid and would require evidence dehors the record to establish its invalidity.2^ § 378. Negligence in examining- title a bar to relief. Not- withstanding the somewhat liberal tendency of courts of equity to the exercise of their extraordinary jurisdiction for the prevention of a cloud upon title, the relief will not be extended in behalf of one whose own carelessness or want of diligence in the examination of the title before purchasing has prevented his acquiring knowledge of liens which he afterwards seeks to remove. Equity will not, therefore, enjoin a sale of real estate under execution upon a judgment at law, upon the ground that complainant had purchased the property and made valuable improvements thereon before discovering that it was subject to the lien of the judgment in question, it being a sufficient ground for withholding relief in such case that equity will not assist one whose condition is attributable to his fail- ure to exercise reasonable diligenee.^s 22 Union Bank v. Poultney, 8 24 Taylor v. Underbill, 40 Cal. Gill & J.. 324. 471. s-". Leslie v. St. Louis. 47 Mo.. 474. 2.-^ Dillett r. Kemble. 10 C. Ei 356 INJUNCTIONS. [chap. VI. § 379. Sale of lands under execution against former owner enjoined. A vendee of lands who is in possession under a bond for title and who claims the legal title may enjoin a judgment creditor of his vendor from selling the lands under execution against the vendor, the bond having been recorded before the judgment, the relief being granted in such case upon the principle of quia timet, since equity will not com- pel the vendee to wait until such threatened sale is com- pleted and then to rely upon the strength of his title in a proceeding at law.-^ And since possession of real property is considered as notice of the title and interest of the pos- sessor, it is held that where one purchases land and is in its exclusive possession, but has not yet received a conveyance from his grantor in whom the legal title yet stands, he may restrain a sale of the land under execution against his ven- dor.-'^ So a purchaser by parol, who has paid the purchase money and been in possession until his title has matured by prescription, has been allowed to enjoin a sale under execu- tion upon a judgment recovered against his vendor after such, sale and possession.-^ And one who purchases and takes pos- session of real estate, but whose conveyance is not recorded until after the execution of a deed of trust by his grantor of the same premises, may enjoin a sale under such deed, the trustee and beneficiary having full knowledge of the prior conveyance and jjossession.^^ But a plaintiff in possession and asserting a legal title to real estate has been refused an in- junction to prevent its sale under a judgment recovered against the grantor subseqnoDt to his conveyance to plaintiff.-''*^ xVud a Green, 66. But see S. C, 8 C. E. the bond under which plaintiff Green, 58, where, upon the facts claimed title had not been re- shown, the case was regarded as a corded. proper one to continue the inter- -'• Uhl r. May, 5 Neb., 157. locutory injunction until the final ^s Niles r. Davis, 60 Miss., 750. hearing. -'•' Martin v. Jones, 72 Mo., 23. -« Merriman v. Polk, 5 Heisk., -" Sheldon r. Stokes, 34 N. J, 717. But In Moore r. Hallum. 1 Eq., 87. Lea, .^i11, rclii'f was r(>fused when CHAP. VI.] AFFECTING REAL PROFERTY. 357 purchaser can not enjoin the execution of a sheriff's deed upon a sale under a judgment recovered before his purchase, to which judgment he was not a party .^^ But an equitable lien or charge upon real estate, which is prior to the lien of a judgment upon the same premises, may be protected by in- junction against a sale of the property under execution until the rights of all parties may be determined.^^ ^^d the pur- chaser of a portion of a tract of land, which is subject to the lien of a judgment against his grantor, may restrain a sale under execution of such portion until the remainder of the land owned by the grantor and which is sufficient to satisfy the execution is first sold.^' So a sale of lands under a judg- ment against a former owner which was never a lien upon the premises may be restrained, since the sheriff's certifi- cate of such sale, or the conveyance thereunder, would consti- tute a cloud upon the owner's title.^'^ And a bona fide pur- chaser for value of real property may enjoin a sheriff's sale of the premises under an attachment issued subsequent to his purchase and without his knowledge at that time.-^^ And a wife in possession of real estate under a conveyance from her husband may enjoin a sale of such land under execution issued upon a judgment rendered against the husband.-^" § 380. Administrator denied relief ; jurisdiction cautiously exercised against strangers. While the jurisdiction of equity to enjoin a sale which is likely to result in clouding plain- tiff's title is thus shown to be well established, to bring a case within the rule the party aggrieved must actually have a title which is embarrassed or about to become so by the threatened eloud."^^ And when the plaintiff' fails to show any title, but 31 Colby V. Brown, 10 Neb., 413, 436. See also Wilhelm v. Wood- 6 N. W., 474. cock, 11 Ore., 518, 5 Pac, 202. 32 Monticello Hydraulic Co. r. 35 Groves v. Webber, 72 111., 606. Loughry, 72 Ind., 562. 36 Einstein v. Bank, 137 Cal., 47, 33 Edwards v. Applegate, 70 Ind., 69 Pac, 616. 325. 3' Robinson ?;. Joplin, 54 Ala., 70; 34 Goodell V. Blumer, 41 Wis., Benner v. Kendall, 21 Fla., 584. 358 INJUNCTIONS. [chap. VI. at the most only a right to sell the lands for purposes of administration, plaintiff being an administrator in charge of the estate to which the lands pertain, equity will not inter- fere.^^ And the courts are also cautious in granting the relief where it would work an injury to strangers.^^ § 381. Administrator's sale, when enjoined. When an ad- ministrator is about to sell real estate as that of his intestate, which had been sold by the latter in his life-time, he may be enjoined from selling upon the ground of preventing a cloud upon title, the relief being extended upon the principle of quia 38 Robinson v. Joplin, 54 Ala., 70 ^o Gerry v. Stimson, 60 Me., 186. 39 Goldstein v. Kelly, 51 Cal., 301. CHAP. VI.] AFFECTING REAL PROPERTY. 359 V. Collection of Purchase Money on Failure of Title. § 382. Unsettled state of authorities. 383. Vendor's fraud ground for relief; effect of laches. 384. Purchaser in possession with warranty not allowed to enjoin collection of purchase money. 385. Defense should be urged in suit for purchase money. 386. Knowledge of defect in title by vendor. 387. Injunction allowed when possession not given to purchaser. 388. Outstanding incumbrances; covenants of quiet enjoyment. 389. Pendency of action of ejectment. 390. Injunction allowed when no conveyance given. 391. Recovery barred by statute of limitations. 392. Sales of hazard. 393. Covenant not to withhold payment for want of conveyance. 394. False representations of vendor as to quantity; same as to use of water. 395. Conflicting decisions. 396. Cases where injunction allowed because of defective title. 397. Entire failure or want of title. 398. The doctrine in Indiana. 399. Effect of garnishee proceedings against purchaser. 400. Vendor's insolvency ground for relief. 401. Judicial sales. 402. Violation of vendor's agreement. 403. Vendor's failure to procure outstanding title. 404. Injunction allowed when legal remedy inoperative. 405. Duty of vendor seeking dissolution. 406. Injunction rarely perpetuated. 407. Purchaser with knowledge of defect can not enjoin. 408. Rescission of contract by purchaser. 409. Effect of special stipulations as to payment. 410. Difficulty in obtaining title resulting from purchaser's own neg- ligence. 411. Set-off; recoupment; unpaid taxes. 412. Diligence required in remedy at law. 413. Damages on dissolution. § 382. Unsettled state of authorities. Upon no branch of the jurisdiction of equity by injunction, save that in restraint of taxation, are the authorities more divergent and irrecon- cilable than in eases where the relief has been invoked to 360 INJUNCTIONS. [chap. VI. restrain the collection of unpaid purchase money of real estate because of failure of title. While, upon the one hand, courts of the highest authority have denied the relief in cases where the grounds relied upon might have been urged in defense of an action at law for the purchase money, and in cases where the parties complaining were in possession under cove- nants of warranty have held the proper remedy to be at law upon the covenants contained in the deed, courts of equal authority and respectability have, upon the other hand, contended strenuously in similar eases for the exercise of the jurisdiction in equit}^ to restrain the collection of the pur- chase money. In this unsettled state of the authorities it is exceedingly difficult, if not impossible, by any process of generalization, to deduce from the decided eases principles of general application which shall serve as rules for the guidance of courts and practitioners. The most that can be attempted is to group together the adjudications both for and against the exercise of the jurisdiction, together Avith the reasoning upon which the decisions are based. §383. Vendor's fraud ground for relief; effect of laches. It will be found upon investigation that many, though by no means all of the decisions in support of the jurisdiction in restraint of the collection of purchase money, rest upon the ground of fraudulent or deceitful conduct upon the part of the vendor. The relation of vendor and vendee of real property being considered a confidential relation, the suppression by the vendor of a knowledge of fatal defects in the title of the property conveyed constitutes such fraud as will author- ize the interference of equity to prevent the collection of the purchiisc money, notwithstanding the remedy at law for breach of covenants of title, if the vendor be insolvent so that a judg- ment against him would be worthless.' Accordingly it has been held where the vendor had disguised from the vendee 1 Ingram v. Morgan, 4 Humph., mick, 6 Fla., 368; Reed v. Tioga 66. And see Yonge r. McCor- Manufacturing Co., 66 Ind., 21. CHAP. VJ.] AFFECTING REAL PIIOPEKTY. 361 the fact that his only title was a bond for a conveyance from a person since deceased, that a note for an unpaid balance of purchase money might be enjoined even in the hands of a third person, who, however, had not received it in due course of trade, but had taken it in payment of a pre-existing indebt- edness, and without indorsement.- So where fraud is prac- ticed by the vendor against thfe purchaser in concealing from the latter certain tax sales, which are an incumbrance upon the land sold, although the vendee may have lost his right to rescind the contract by reason of his laches after dis- covering the fraud, he may still be protected by injunction against the collection of the residue of the unpaid purchase money until a good title can be made to the premises.-^ Where, however, the purchaser has been guilty of unreasonable delay and laches in asserting his right to relief upon the ground of fraudulent representations on the part of the vendor, equity will refuse to interfere by injunction with a judgment for purchase money. Thus, when the purchaser takes possession of the land, remains in possession and cultivates it for a long- period of years, and permits judgment to be taken against him for part of the unpaid purchase money, he can not, after the lapse of many years, enjoin a sale of the land in satisfaction of the judgment because of deceitful representations by the ven- - dor as to its value and capability of cultivation, being estopped in such case by his own laches from relief in equity.* § 384. Purchaser in possession, with warranty not allowed to enjoin collection of purchase money. Where the purchaser of land is in actual possession under covenants of warranty, the better doctrine seems to be that he is not entitled to an injunction against the collection of purchase money on the ground of failure of consideration resulting from want of title. - Ingram i7. Morgan, 4 Humph., 3 Houston v. Hurley's Adm'rs, 2 66. And see Yonge v. McCor- Del. Ch., 247. mick, 6 Fla., 368; Clarke v. Hard- 4 Hambrick v. Dickey, 48 Ga., grove, 7 Grat., 399. 578. 362 INJUNCTIONS- [CHAP. VI. Possession having been taken under the deed, and there being no eviction at law under a paramount title, the remedy must be had at law upon the covenants in the deed in the absence of fraudulent and wilful misrepresentations as to vendor's title. In such cases eviction at law is regarded an as in- dispensable part of the purchaser's claim to relief in equity, and he being still in possession under covenants of warranty, no injunction should be allowed.^ And in no event will mere general allegations of failure of title or of defective title war- rant a court of equity in enjoining a judgment for purchase money.^ So the i^urchaser, while in undisturbed possession, 5 Bumpus V. Platner, 1 Johns, bound to defend their title at Ch., 213; Abbott v. Allen, 2 Johns, law; and 7ion constat, that he is Ch., 519; Patton V. Taylor, 7 How., not able and willing to do it. 133; Gayle v. Fattle, 14 Md., 69; Beale v. Seiveley, 8 Leigh, 658; Wilkins v. Hogue, 2 Jones Eq., 479; There was a case under Lord Not- tingham (2 Ch. Cas., 19, Anon.), in which the purchaser was re- Elliott V. Thompson, 4 Humph., lieved from the payment of the 99; Senter v. Hill, 5 Sneed, 505; Truly V. Wanzer, 5 How., 141; purchase money; but he had already lost the land, by eviction, Merriman v. Norman, 9 Heisk., under a better title. If the title 269; Harding, Ex'r, v. Commercial fails, in this case, the plaintiffs Loan Co., 84 111., 251; Allen v. can resort to the covenants in Thornton, 51 Ga., 594; Swain v. their deeds for their indemnity. Burnley, 1 Mo. (2d edition), 286. In Bumpus v. Platner, 1 Johns. I consider an eviction at law an indispensable part of the plain- Ch., 213, an injunction was sought tiff's claim to relief here, on tha against proceedings under a bond mere ground of failure of consid- and mortgage given for purchase eration." But see, contra, Clarke money, on the ground of failure v. Hardgrove, 7 Grat., 399; Koger of consideration, consisting in do- v. Kane, 5 Leigh, 606; Bartlett v. fective title, the complainant be- Loudon, 7 J. J. Marsh., 641; Yonge ing in undisturbed possession un- der covenants of warranty. Tho relief was denied, Kent, Chancel- v. Argyle's Ex'r, 5 Leigh, 460; Bul- lor, saying: "I apprehend it may litt's Ex'rs v. Songster's Adm'rs, be safely said that there is no case 3 Munf., 55; Dorsey v. Hobbs, 10 of relief on this ground, when Md., 412; Buchanan v. Lorman, 3 r. McCormick, 6 Fla., 368; Gay V. Hancock, 1 Rand., 72; Miller possession has passed and contin- ued, without any eviction at law. Gill, 51. fi French v. Howard, 8 Bibb, 301; under a paramount title. Platner Kinports v. Rawson, 29 West Va., conveyrd to the plaintiffs, with a 487, 2 S. E., 85. covenant of warranty, and he is CHAP. VI.] AFFECTING KEAL PROPERTY. 363 can not maintain a bill to enjoin a sale of the lands under a mortgage given to secure the unpaid purchase money upon the ground that he acquired no title by his purchased Nor is the purchaser of lands, who is in possession, entitled to relief by injunction against the enforcement of judgments for the unpaid purchase money because of judgments against the vendor which may prevent him from making a good title, when only a remote possibility is shown that the purchaser will ever be disturbed in his possession.^ And to warrant an injunc- tion against the enforcement of a judgment for unpaid pur- chase money, it is not sufficient to allege a failure of title to the premises conveyed, since that might have been urged in defense of the action in which judgment was recovered for such purchase money, or the purchaser might have a legal remedy upon the covenants for a good title given by the ven- dor.9 § 385. Defense should be urged in suit for purchase money. It is also held that equity will not interfere by injunction with the enforcement of a decree for unpaid purchase money of real estate, when no equity is alleged as a groiind for the desired relief which was not or should not have been urged in the action resulting in such decree. ^^ And when the pur- chaser has an equitable defense to an action for the foreclosure of the notes and mortgage given for the unpaid purchase money, such defense growing out of the fact that the land had been incumbered previous to his purchase, but neglects to avail himself of such defense in that action, he can not upon that ground enjoin the enforcement of the judgment for unpaid purchase money.^^ So when the purchaser relies upon a breach of warranty in defense of an action for the recovery 7 Cartright v. Briggs, 41 Ind., » Allen v. Thornton, 51 Ga., 594. 184. " Moore v. Hill, 59 Ga., 760. 8 Collins V. Clayton, 53 Ga., 649; n Ricker v. Pratt, 48 Ind., 73. Wamsley v. Stalnaker, 24 Wfist Va. 214. 364 INJUNCTIONS. [chap. VI. of purchase money, but is defeated in the action and judg- ment is recovered against him, he can not enjoin such judg- ment because of another breach of warranty of which he might by the use of due diligence have availed himself upon the for- mer hearing.i2 § 386. Knowledge of defect in title by vendor. To warrant equity in relieving a vendee in possession under covenants of warranty by enjoining the collection of purchase money on the ground of defective title, it must clearly appear that the vendor knew of the defect in the title Avhich the purchaser had no means of discovering, and that he fraudulently sup- pressed this knowledge. Where this does not appear and no suit is either prosecuted or threatened against the vendee for the property in question, no injunction will be allowed.^ ^ In conformity with this principle it is held that the fears and apprehensions of the vendee that his title may prove defec- tive, will in no case warrant the interference of equity where he is still in undisturbed possession of the property.'^ And where the alleged defects do not amount to a total failure of consideration, and there has been no disturbance or eviction, and no suit brought by an adverse claimant, relief by injunc- tion will be withheld.^ ^ § 387. Injunction allowed when possession not given to purchaser. Where the purchaser of land has never been placed in j)()ssession there seems to be stronger reason for allowing relief in equity against enforced payment of the pur- chase money.^" Thus, an injunction has been allowed against a judgment on a bond for purchase money where possession of the property was not given at the time stipulated, and '-' Desvergers v. Willis, 58 Ga., i^. Hile v. Davison, .5 C. E. Green, 388. 228. i^' Beale v. Seiveley, 8 Leigh, 658. i" Hilleary v. Crow, 1 Har. & J., M Truly v. Wanzer, 5 How., 141. 542; Nelson v. Owen, 3 Ired. Eq., See also Cantrell c. Cobb, 43 Ga., 175. 193. CHAr. YI.] AFFECTING REAL PROPERTY. 365 where no conveyance had been made to the vendee. Under such circumstances, the vendee having received no conveyance is deprived of the legal remedy which he might have enforced upon the covenants of a deed had one been given.^^ So a suit for purchase money has been enjoined where the land w^as in the adverse possession of a third party having title to a por- tion of it, even though this fact was known to the purchaser at the time of the contract, the vendor having at that time agreed to put vendee in possession, which he has failed to do, and the answer admitting an inability to deliver possession. ^^ And where land is sold conditionally, the purchaser taking a deed and giving his note for the purchase money, and upon failure of the condition the purchaser tenders back his deed and demands his note, the vendor remaining in posses- sion, receiving the rents and selling timber from the premises, and refusing to surrender possession, the purchaser may en- join the enforcement of a judgment upon the note, the bill alleging the vendor's insolvency.^^ § 388. Outstanding incumbrances ; covenants of quiet en- joyment. Outstanding incumbrances or an outstanding equi- table title will not warrant a court of equity in enjoining the collection of purchase money in behalf of a purchaser who is in peaceable possession under covenants of warranty.^o And where the buyer has a full and ample remedy at law on his covenants of quiet enjoyment, he can not sustain a bill for an injunction on the ground of defect of title, but will be left to pursue his remedy at law.-^ § 389. Pendency of action of ejectment. While, as we have already seen, mere general averments of defective title, or the fears and apprehensions of a purchaser that the title will prove defective, will not warrant a court of equity in extend- 1' Hilleary v. Crow, 1 Har. & J. lo Odell v. Reed, 54 Ga., 142. 542. 20 Elliott V. Thompson, 4 Humph., i^Nelsoa v. Qwen, 3 Ired. Eo-, 99; Senter t\ Hill, 5 Sneed, 505. 175. 21 Wilkins v. Hogue, 2 Jones Eq., 479. 366 INJUNCTIONS. [chap. VI. ing relief,-- yet it would seem that if the title is actually called in question by an action of ejectment, there is suffic- ient ground for restraining a recovery of the purchase money until the proceedings in ejectment are terminated.^^ But even in such case it has been held necessary to charge in the bill that the claim of title on which the ejectment proceedings are founded is a valid one. And an injunction has been re- fused against a sale of real estate under a mortgage given to secure purchase money, where the relief was sought on the ground that a third party had instituted proceedings in eject- ment to recover the property, there being no allegation in the bill that the claim of title on which ejectment was brought was well founded. In other words, a mere claim of paramount title by a third person and his bringing suit upon such claim against the vendee, will not authorize an injunction against the vendor who has warranted the title to restrain him from proceeding to collect unpaid purchase money.-^ And courts of equity never interfere in behalf of a purchaser in this class of cases, unless the title is questioned by a suit either prosecuted or threatened, or unless the purchaser can clearly show that the title is defective.-^ § 390. Injunction allowed when no conveyance given. "Where no conveyance has been given of the property con- tracted to be sold there are stronger equities in support of the relief by injunction than where the land has actually been conveyed, since the purchaser, having no covenants of war- ranty on which to enforce a remedy at law, is compelled to resort to equity for relief against an injury which might other- wise prove irreparable.^^ Thus, where one under pretense of 22 French v. Howard, 3 Bibb, 301; ^r. Ralston r. Miller, 3 Rand., 44. Truly V. Wanzer, 5 How., 141. 26 Brannum v. Ellison, 5 Jones '-'••i Johnson v. Gere, 2 Johns. Ch., Eq., 435; Buchanan v. Alwell, 8 TAG. Humph., 516; Topp v. White, 12 2iGayle v. Fattle, 14 Md., 69; Heisk., 165. And see Boyce's Kinports v. Rawson, 29 West Va., Ex'rs v. Grundy, 3 Pet., 210. 487, 2 S. E., 85. CHAP. VI.] AFFECTING EEAL PEOPEKTY. 367 a title in himself assumes to sell land, taking bonds for the purchase money, but in reality having no title and giving no conveyance, he may be enjoined from attempting to enforce the collection of the bonds, complainant being required to surrender possession of the premises as a condition precedent to obtaining relief.^ And where the vendor of real estate executes a bond for title and the purchaser executes a bond for the purchase price at the same time, the acts being con- current acts and to be performed at one and the same time, it is error to dissolve a preliminary injunction against a judg- ment obtained by vendor for the purchase money, he hav- ing failed to execute a conveyance as required by his bond, and the injunction should be perpetuated to the hearing.- § 391. Recovery barred by statute of limitations. But where a vendee enters under a title bond from his vendor and holds the land under such title until the statute of limitations would bar a recovery by an adverse claimant, he will not be allowed to set up a defect of title in his vendor existing at the time of sale to him as a ground of injunction against a judgment for the purchase money .^ § 392. Sales of hazard. Where a purchaser of land has ac- cepted a conveyance without warranty of title, it has been held that an injunction would not lie against unpaid purchase money in the absence of fraud or concealment on the part of the vendor concerning the title.'* Such a purchase may prop- erly be termed a sale of hazard, and it may be laid down as a general rule that in sales of hazard equity will not interpose in the absence of fraud or misrepresentation.^ Thus, where a sale of land is made in gross, the contract being one of haz- ard on both sides, the purchaser is not entitled to relief in 1 Brannum v. Ellison, 5 Jones * Price's Ex'rs v. Ayres, 10 Grat., Eq., 435. 575. - Brittain v. McLain, 3 Ired. Eq., •'' Keyton v. Brawford, 5 Leigh, 165. 39; Carrico v. Froman, 2 Lit., 178; 3 Amick V. Bowyer, 3 West Va., 7. Sutton v. Sutton, 7 Grat., 234. 24 368 INJUNCTIONS. [chap. VI. equity in case of a deficiency in the amount.*"' And where the purchase is, as to the title, one of hazard, there being no fraud or concealment concerning the title by the vendor, a judg- ment for the purchase money will not be enjoined, even though the vendor represented the title as good when it was defec- tive, his representations having been made in good faith." In such eases the purchaser, having accepted the land without any agreement, either express or implied, for a conveyance with warranty, is regarded as having taken upon himself all risk as to the title, and he is therefore debarred from relief in a court of equity.'^ § 393. Covenant not to withhold payment for want of con- veyance. The question as to whether equitable relief shall or shall not be given in a particular case may sometimes be determined by the nature of special stipulations made by the parties at the time of sale. Thus, where vendees contract at the time of purchase that their payments shall be made promptly and shall not be withheld when due for want of a conveyance, such agreement is sufficient, in the absence of fraud, to warrant a court of equity in denying relief by in- junction against a judgment for payment which vendees have refused to make on account of defective title.*^ § 394. False representations of "vendor as to quantity; same as to use of water. While in case of a sale of land in gross, the contract being one of hazard on both sides, equity will not, as we have already seen, interfere in aid of the purchaser on account of a deficiency in the amount of land conveyed,^** <= Keyton v. Brawford, 5 Leigh, should be made to the land in ques- .39. tion; the effect of this stipulation 'Sutton V. Sutton, 7 Grat., 234; is not touched upon by the court Carrico v. Froman, 2 Lit., 178. In in deciding the cause, the latter case the vendee had con- » Sutton v. Sutton, 7 Grat., 234. tracted in his bond for the pur- o Lucas v. Chapeze. 2 Lit., 31. chase money that it should not be And see Carrico r. F.oman, 2 Lit., withheld by bill in chancery or 178. otherwise if any adverse claims J" Keyton v. Brawford, 5 Leigh, 39. CHAP. VI.] AFFIX TIXG HEAL PROI'F RTY. 369 yet where the purchaser has relied upon the vendor's rep- resentations as to the amount of land the case is somewhat different. And a vendee who is not yet is possession may enjoin a judgment for the purchase money on the ground of deficiency in the amount where he has made the pur- chase relying entirely upon vendor's representations as to the amount, which representations prove to be false. ^^ So where three separate tracts of land are sold, the' title proceeding through as many separate sources or deeds, one of which entirely fails, so that the vendor could have had no authority to sell that tract, and there is a deficiency in the remaining tracts, a judgment for the purchase money may be enjoined to the extent of the deficiency in the land. Under such cir- cumstances the relief is granted, not because of a deficiency in the amount conveyed, but because of an entire failure as to one tract, the land specified having in reality no existence.^ - So upon a bill by the purchaser to rescind a sale of real estate and to enjoin the collection of his notes given for the pur- chase money, where it was shown that the grantor had falsely represented at the time of sale that the owner of the premises sold was entitled to the use of water from a well upon an adjacent lot, it was held that, although the contract could not be rescinded, the purchaser was entitled to an injunction as to so much of the notes as would equal the cost of sinking a well upon the premises sold.^^ § 395. Conflicting decisions. We have already considered the doctrine that the purchaser of real estate in actual and peaceable possession under covenants of warranty will not be allowed to enjoin the collection of the purchase money on account of defective title. The authorities supporting that proposition are based upon the universally recognized rule that equity will never interpose for the purpose of granting 11 Lee V. Vaughan, Ky. Dec, 238. i^ Elder v. Sabin, 66 III., 126. 3 2 Strodes r. Patton. 1 Marsh. Dec, 228. 370 INJUNCTIONS. [chap, vl relief which may be had in the courts of law, and the vendee being in the enjoyment of undisturbed possession may find ample redress for any defect in title or disturbance of his possession by an action at law upon the covenants in his deed. Notwithstanding the array of respectable authorities in sup- port of this rule, there are other cases, neither few in numl)er nor wanting in authority, which have held a doctrine directly opposed to this, and the courts have freely exercised the jurisdiction, even though the purchaser was protected by the covenants in his deed. It remains to consider these cases, as well as the reasoning upon which they are based. § 396. Ca^es where injunction allowed because of defective title. The doctrine has been broadly laid down that a pur- chaser of real estate with general warranty is entitled to an injunction against the payment of the purchase money upon proof of an actual, outstanding, superior title in a tlyrd per- son, or of fatal defects in the title of his grantor.^^ Thus, where land is sold with covenants of warranty and a deed of trust is given to secure the payment of the purchase money, discovery of an adverse claim to the land has been held sufficient to warrant a court of equity in enjoining a sale under the trust deed until the cloud resting on the title is removed.^^ Nor is the right of the purchaser to an injunction on the 1* Gay V. Hancock, 1 Rand., 72; son, 4 Humph., 99; Senter v. Hill, Miller v. Argyle's Ex'r, 5 Leigh, 5 Sneed, 505; Truly r. Wanzer, 5 460; Clarke v. Hardgrove, 7 Grat., How., 141. 399; Roger v. Kane, 5 Leigh, 606; is Gay r. Hancock, 1 Rand., 72. Dorsey v. Hobbs, 10 Md., 412; And see Miller r. Argyle's Ex'r, 5 Yonge V. McCormick, 6 Fla., 368; Leigh, 460. And an injunction Bullitt's Ex'rs v. Songster's Adm'rs, has been allowed to prevent a sale 3 Munf., 55. But see, contra, of real estate upon a judgment for Swain v. Burnley, 1 Mo. (2d edi- unpaid purchase money, when the lion), 286; Bumpus v. Platner, 1 relief was sought for the protec- Johns. Ch., 213; Abbott v. Allen, tion of complainant in the value of 2 Johns. Ch., 519; Gayle v. Fattle, improvements which he had put 14 Md., 69; Beale v. Seiveley, 8 upon the premises. Seago v. Bass, Leigh, 658; Wilkins v. Hogue, 2 49 Ga., 9. Jones Eq., 479; Elliott v. Thomp- CHAP. VI. J AFFECTING EEAL PEOPEETT. 371 ground of defective title impaired by the eircunistance of the vendor seeking to collect the unpaid purchase money from a third person on a collateral security assigned to such person by the purchaser.^'' § 397. Entire failure or want of title. Equitable relief has been allowed for the protection of a purchaser where the con- sideration for a contract of sale has entirely failed, the vendor having stripped himself of all title to the premises, legal or equitable, and being in no condition to comply with his con- tract to convey. In such case neither the vendor nor his assignees standing in his stead will be allowed to recover the purchase money, and a judgment on a bond for such money will be perpetually enjoined.^ ^ And where vendor at the time of making his agreement to convey was without title to the premises, an injunction may be allowed against proceedings at law upon the bond, the contract being treated as an unexe- cuted one until vendee has received that for which he has con- tracted,^^ § 398. Tbe doctrine in Indiana. It is the established doc- trine of the courts of Indiana that proceedings for the collec- tion of unpaid purchase money may be enjoined at the suit of the vendee, until the vendor has made good the title, even although the vendee does not tender a reconveyance of the lands, the suit for the injunction being regarded not as a proceeding to rescind the sale, but rather to enforce it.^^ And the relief in such cases is granted regardless of the covenants in the vendor's conveyance, being based upon the element of fraud in the false representations made by the vendor.-^ So when the purchaser, relying upon the vendor's fraudulent 16 Clarke v. Hardgrove, 7 Grat., 31; Fitch v. Polke, 7 Blackf., 564; 399. And see Ingram v. Morgan, 4 Warren v. Carey, 5 Ind., 319; Hin- Humph., 66. kle v. Margerum, 50 Ind., 240. See 17 Buchanan v. Lorman, 3 Gill, 51. also Reed v. Tioga Manufacturing isDorsey v. Hobbs, 10 Md., 412. Co., 66 Ind., 21. 19 Addleman V.Mormon, 7 Blackf., 20 Hinkle v. Margerum, 50 Ind., 240. 372 INJUNCTIONS. [chap. VI. representations as to his title, remains in ignorance of the fact that the vendor had not a good title until after judgment is obtained against him for the unpaid purchase money, such ignorance is a sufficient excuse for not defending at law, and he may, therefore, enjoin the judgment.-^ But it is held that the injunction should not be granted when it is not shown that the vendor is insolvent.^^ § 399. Effect of garnishee proceeding's against purchaser. Relief by injunction may also be granted in aid of a pur- chaser of real estate who is harassed by different proceedings for the collection of the purchase money, not only by the ven- dor, but by his judgment creditors seeking to reach the pur- chase money through garnishee proceedings. Thus, where a purchaser is in possession, not having paid all the purchase money, and a judgment creditor of the vendor obtains judg- ment against the purchaser in a garnishee proceeding, and is endeavoring to sell the land which is subject to the lien of his judgment, the purchaser is entitled to the aid of an injunc- tion to restrain the vendor from collecting a note given for the unpaid purchase money .-^ § 400. Vendor's insolvency ground for relief. The question of insolvency of the vendor as affecting the right of the pur- chaser to enjoin the collection of unpaid purchase money upon a failure of title, in whole or in part, is one of much practical importance, and upon which there is the same noticeable want of harmony in the rulings of the courts which prevails in other branches of the jurisdiction which forms the subject of the present chapter. The weight of authority, however, is clearly in support of the right to an injunction in such cases, when by reason of his insolvency the vendor is unable to respond in damages in an action at law. And the relief is extended in such cases upon the ground that the legal remedy being ^» Fitch ('. Polke. 7 Blackf.. 5fi4. •-•• Filliugin v. Thornton. 49 Ga., 22 Wimberg r. Schwegeman, 97 .'?84. Ind.. 528. CUAP. VI.] AFFECTING REAL PROFERTY. 373 insufficient by reason ol' such insolvency, a court of equity is the only source to which resort can be had for the re- dress of a grievance which might otherwise prove irrepara- ble.-* Where, therefore, the title to the lands conveyed has partially failed, the purchaser may enjoin the vendor from transferring the notes and mortgage given for the purchase money, the bill alleging the vendor to be irresponsible, since if the notes were transferred to an innocent holder the purchaser might suffer an irreparable injury.^" The doctrine of relief upon the ground of insolvency has been carried even farther,, and it has been held that a purchaser in possession, under covenants of general warranty, even though the title has not been questioned by suit either prosecuted or threatened, may enjoin the collection of purchase money upon proof of defective title, if the vendor through insolvency is unable to respond in damages in an action upon the covenants of warranty.-*' Upon the other hand, it has been sought to restrict the exercise of the jurisdiction to cases where the element of fraud is coupled with that of the insolvency of the vendor. And a pur- chaser seeking to enjoin a sale of lands for unpaid purchase money upon the ground of the vendor's insolvency and the pendency of suits by third persons claiming title to the lands has been denied relief in the absence of any allegations of fraud against his vendor.-''' §401. Judicial sales. The authorities are unsettled as to whether relief by injunction in cases of defective title may be extended to enforced sales under judicial process. Upon the one hand, it has been held that where the purchaser of land at a sale under execution has given a bond for the purchase price, 24 Yonge V. McCormick, 6 Fla., 25 McDiinn v. City of Des Moines, 368; McDunn<\ City of Des Moines, 34 Iowa, 467. 34 Iowa, 467. See also Fehrle v. 20 Yonge v. McCormick, 6 Fla., Turner, 77 Ind., 530. See, contra, 368. Strong V. Downing, 34 Ind., 300, 27 Strong r. Downing, 34 Ind.^ overruled in part in Fehrle r. 300. Turner, 77 Ind., 530. 374 INJUNCTIONS. [chap. VI. he may restrain the enforcement of the bond on showing that defendant in execution had no title to the land sold, the pur- chaser having acted in good faith.^s Upon the other hand, it has been held that a purchaser at a judicial sale can only obtain relief on the ground of defective title by resisting the confirmation of the sale in the proceedings at law wherein such sale was ordered, and he is not entitled to enjoin a judg- ment on his bond for the purchase money.^^ §402. Violation of vendor's a^eement. It may sometimes happen that the vendor has by his own agreement placed him- self in such position that it would be inequitable to allow him to proceed at law for the collection of purchase money. Thus, where he has entered into a contract under seal with the vendee that he will not bring suit upon the bond given as security for part of the purchase price until the quantity of the land shall be definitely ascertained, and in violation of his agree- ment has instituted proceedings at law for a recovery upon the bond before the quantity of the land has been ascertamed, it has been held that the proceedings upon the bond might be perpetually enjoined.^*' And when land is sold under an agreement that the vendee shall withhold payment of the pur- chase price until the vendor shall furnish a full and complete title, the latter may be enjoined from enforcing a mortgage securing the unpaid purchase money until he has complied with his contract to furnish a good title.-"^! § 403. Vendor's failure to procure outstandings title. Fail- ure of the vendor to comply with his agreement to procure a relinquishment of outstanding titles or interests in the land conveyed has sometimes been held sufficient ground for the interference of equity by injunction.^^- Thus, where the ven- 28 Bartlett v. Loudon, 7 J. J. ■•" Bullitt's Ex'rs v. Songster's Marsh., 641. Adm'rs, 3 Munf., 55. 20Threlkelds v. Campbell, 2 •" Wade r. Percy, 24 La. An., 173. Grat., 198. •'- McKoy r. Chiles, 5 Monr., 259; .Taynes r. Brock, 10 Grat., 211. CHAP. VI.] AFFECTING REAL PEOPEETY. 375 dor has contracted to procure a conveyance to the vendee of the title of other joint owners of the premises, but fails to do so, he may be enjoined from enforcing a judgment upon ven- dee's bond for the purchase price, even though the vendee himself procures the remainder of the title directly from the other owners.^'"^ So the failure of the grantor to procure a relinquishment of his wife's dower, which he had agreed to do when the purchaser accepted his conveyance, has been held sufficient ground for enjoining a judgment for the pur- chase money. But an injunction granted under such circum- stances will be dissolved on vendor afterward procuring a release of the wife's dower, though the writ having been properly granted in the first instance no damages will be allowed upon its dissolution.^* §404. Injunction allowed when legal remedy inoperative. The fact that the remedy at law against the grantor with covenants of warranty is inoperative affords strong ground for relief in equity against payment of purchase money. And where the grantor is a non-resident and has not sufficient prop- erty in the state to satisfy a judgment in damages for breach of his covenants of warranty, the injunction may be allowed on proof of defective title, especially where the purchaser has not yet obtained possession of that portion of the land to which the title is defective, it being held adversely.^''^'* § 405. Duty of vendor seeking dissolution. Where the ven- dor of real estate, who has been enjoined from collecting the purchase money on account of defective title, seeks a dissolu- tion of the injunction the burden is thrown upon him of estab- lishing a good title.^*' And in such case the vendor will be 33 Jaynes v. Brock, 10 Grat., 211. Scobie, 5 B. Mon., 387; Lampton 31 McKoy V. Chiles, 5 Monr., 259. v. Usher's Heirs, 7 B. Mon., 57; And see as to refusal of damages Fishback v. Williams, 3 Bibb, 342. on dissolution of an Injunction And see, post. § 413. properly granted to restrain pay- ss Richardson r. Williams, .'> ment of purchase money, Porter v. Jones Eq., 116. 36 Moredock v. Williams, 1 Overt.. 376 INJUNCTIONS. [chap. VI. required to produce his title to the court in order that it may be satisfied of its sufficiency to warrant a dissolution of the injunction.3'^ Nor will the purchaser be required to accept a conveyance from a third person to perfect the title, he being protected by the covenants of warranty of his vendor.*^^ § 406. Injunction rarely perpetuated. While, as we have seen in the preceding sections, the jurisdiction in restraint of the payment of purchase money is freely exer- cised, a perpetual injunction will rarely be granted, and equity will only extend its protection until the de- fective title is cured, or until the purchaser can pursue his remedy at law on his covenants of warranty .^^ And if the purchaser under a general warranty, who has procured a pre- liminary injunction, fails to prosecute his legal remedy on his covenants of warranty within a reasonable period the injunc- tion will be dissolved.*^ So where the vendee has obtained an injunction on the ground of defective title, the vendor is entitled to a dissolution on curing the defect by a conveyance of the outstanding title, even though there are general allega- tions in the bill of other outstanding title, such allegations being unsupported by proof. *^ And a vendee who has obtained an injunction against a judgment for purchase money of real estate is not entitled to have his injunction perpetuated and to have the benefit of his purchase at the same time.^^ § 407. Purchaser with knowledge of defect can not enjoin. The relief in this class of cases resting principally upon fraud 325; Moore v. Cook, 2 Hayw. if allowed before vendor has made (Tenn.), 84. good the title the injunction should ■'■' Moredock v. Williams, 1 Overt., be reinstated. Grantland r. Wight, 325. 2 Munf., 179. 3H Moore v. Cook, 2 Hayw. '"Swain v. Burnley, 1 Mo. (2d (Tenn.), 84. edition). 286. ■■"' I^vell V. Chilton, 2 West Va., ■" Lovell p. Chilton. 2 West Va., 410; Swain v. Burnley, 1 Mo. (2d 410. edition), 286. But it has been held ••-* Markham r. Todd, 2 .T. J. that a dissolution should never Marsh.. 364; Edwards r. Strode, be allowed until the tender of a 2 .7. .T. Marsh., 506. good and sufficient title, and that CHAP. VI. J AFFECTING EEAL PROPERTY. 377 on the part of the vendor, the jurisdiction will not be exer- cised in favor of one who buys with full knowledge of a defective title, since in such case he assumes all risk as to the condition of the title, and is not misled by fraudulent repre- sentations on the part of the grantor.*^ And one who pur- chases real estate knowing at the time of purchase that the title is doubtful, will not be permitted after taking posses- sion of the premises to enjoin a judgment for the purchase money on the ground of defective title and because his con- veyance proves to be of a life estate instead of the fee simple. In such case the vendor will be decreed to make a conveyance of the fee, and the purchaser will be left to his remedy at law on his covenants of warranty.^^ § 408. Rescission of contract by purchaser. The question of whether the jurisdiction will be exercised where the purchaser does not offer to rescind the contract and restore possession to the grantor may still be regarded, owing to the unsettled state of the authorities, as an t)pen one. The doctrine has been broadly asserted that the purchaser in possession seeking to enjoin payment of the purchase money on the ground of failure of title, will in no event be allowed relief where he does not pray a rescission of the contract or offer to restore possession to the grantor.^-" Upon the other hand, it is held that an injunction will lie on the ground of failure of title, even though no offer is made by the purchaser to rescind the contract of sale, and no tender is made of a reconveyance, since the purpose of the suit for an injunction is not to rescind the contract of sale or the conveyance, but rather to enforce it.'**' Indeed, a still broader doctrine has been asserted, and it has been held that a deficiency in the quantity of land sold, *^ Williamson v. Raney, Freem. 187. And see Markham v. Todd, Ch., 112. 2 J. J. Marsh., 364. 44 Merritt w. Hunt, 4 Ired. Bq., 46 Warren t\ Carey, 5 Ind., 319; 406. Addleman r. Mormon, 7 Blackf., 45 Williamson v. Raney, Freem. 31; Fitch t\ Polke, 7 Blackf., 564; Ch., 112; Jackson v. N>rton, 6 Cal., Hinkle v. Margerum, 50 Ind., 240. 378 INJUNCTIONS. [chap. VI. if discovered before the purchase money is all paid, while it will warrant an injunction, does not constitute a sufficient ground for rescinding the contract where the vendor is guilty of no fraud and has sold without warranty."*'^ § 409. Effect of special stipulations as to payment. In con- formit}' with the general rule denying relief in equity upon grounds which might have availed in defense of an action at law, an injunction against a judgment for purchase money will not be sustained because of a dispute concerning title where by the terms of the contract the purchaser is not obliged to pay the final installment until the question of disputed title shall be determined. The purchaser under such contract, hav- ing failed to avail himself of his defense in the suit at law for the final installment of the purchase price, is by his own negligence barred from relief in equity."*'^ And where by the terms of the contract of sale the purchaser is not to receive title until full payment is made, he wnll not be allowed to enjoin an action at law for the purchase money on the ground of failure of title where he has not offered to pay the money.-*^ § 410. Difficulty in obtaining title resulting from purchaser 's own negligence. Mere difficulty in obtaining title resulting from the purchaser's own negligence will not warrant a court of equity in interposing for his protection where no especial blame attaches to the vendor. Thus, a judgment for purchase money will not be enjoined because of difficulty in obtaining title from infant heirs of the vendor, the purchaser having neg- lected during the lifetime of vendor to make payment and ob- tain a conveyance.^*^ §411. Set-off; recoupment; unpaid taxes. It is a well es- tablished principle that unliquidated danuiges can not be urged 47 Moredock v. Rawlings, 3 Monr., f^" Prout v. Gibson, 1 Cranch C. 73_ C, 389. In this case the infant "•« Allen V. Phillips, 2 Lit., 1. heirs were not made parties to the Hill r. Billingsly, 53 Miss., 111. 22 Detroit & M. R. Co. v. Brown, See also Gaines r. Kennedy, 53 37 Mich., 533. Miss., 103. -^ Bie; Mountain Iron Co.'s Ap- real, 54 Pa. St.. 361. CHAP. VI.] AFFECTING REAL PROPERTY. 387 § 419. Prior jurisdiction of equity ground for injunction. It is also regarded as an appropriate exercise of the preven- tive jurisdiction of equity to enjoin actions of ejectment for the purpose of confining the litigation to the forum in which it was originally begun. An injunction has therefore been granted to restrain ejectment for the same lands for the re- covery of which plaintiff in ejectment has previously filed a bill in equity which is still pending-^** And pending a bill in equity to estabish a will, a defendant to the bill and heir at law of the testator has been restrained from prosecuting an action of ejectment for the recovery of the devised estate.^''' While, however, it is proper under certain circumstances to enjoin the trial of an action of ejectment until a final hear- ing upon a bill in equity, the injunction should not be so framed as to prevent defendant from using his deed upon the trial.-^ And where, pending an action of ejectment to re- cover lands, defendant files a bill seeking to have an alleged invalid mortgage, through which the ejectment plaintiff claims title, set aside as cloud upon the title, equity, having taken jurisdiction for that purpose, will enjoin the prosecution of the action of ejectment and determine the entire controversy.^** §420. Cloud upon title; equal equities. Actions of eject- ment may also be enjoined in equity when the relief is neces- sary for the purpose of preventing a cloud upon title. Thus, the owner in fee of real property may restrain the prosecu- tion of an action of ejectment by a claimant under a sheriff's deed which vests an apparently good title in the grantee, on the ground that the sheriff's deed constitutes a cloud upon the title.^*^ Where, however, as between the parties to the action the equities are equal, an injunction will be withheld. Thus, equity will not on behalf of a purchaser of real estate 26 Bull V. Bodie, Dick., 1. -^ Richardson v. Stephens, 122 27 Edgecumbe v. Carpenter, 1 Ala., 301, 25 So., 39. Beav., 171. so Sieman v. Austin, 33 Barb., 9. 28 Blizzard v. Nosworthy, 50 Ga., 514. 388 IN-JUNCTIONS. [chap. vr. who has given his bond for the purchase money, enjoin an action of ejectment brought by an innocent purchaser in good faith and without knowledge of complainant's rights. In such case the equities being equal the parties will be left to their remedy at law.^^ § 421. Mistake of fact ground for injunction. A mistake of fact may sometimes constitute sufficient ground for restrain- ing proceedings in ejectment. And where on a sale of lands under execution against judgment debtors in possession, the sheriff's deed by mistake omitted a portion of the land, an in- junction has been allowed to restrain the judgment debtors from an action of ejectment to recover the premises from an innocent purchaser, who had acted in good faith and under the impression that he was buying the whole.^- So if by mutual mistake of the parties the description of land in a con- veyance, under which plaintiff in ejectment claims title, cov- ers a much larger quantity of land than was intended to be conveyed, and plaintiff is in actual possession of that portion of the land to which he is rightfully entitled under the con- veyance as intended, he may be enjoined from further prose- cuting his action.^^ Where, however, through the mistake of a surveyor, complainant has erected his building a few inches across the line and upon defendant's premises, he will not be allowed to enjoin defendant from prosecuting an action of ejectment for the recovery of the strip so built upon, defendant having no knowledge of the encroachment when the building was erected.^-^ § 422. Multiplicity of suits. The prevention of a multi- plicity of suits is a favorite ground for the jurisdiction of equity in restraint of proceedings at law, and will avail as well in restraining actions of ejectment as those of any other nature. 31 l.IcFarlane v. Griffith, 4 Wash. ^^ Bush v. Hieks, 60 N. Y., 298. C. C, 585. •" Kirchner v. Miller, 39 N. J. «2 DeRiemer v. Cantillon, 4 Eq., 355. Johns. Ch., 85. CHAP. VI.] AFFECTING REAL PEOrERTY. 389 Thus, where one is in full possession of land with complete legal title, though not all appearing of record, he may enjoin a number of ejectment suits brought against him as to a por- tion of the premises, since the question is the same as to all and may be determined by a single suit in chancery, thus avoiding a multiplicity of actions.^^ And after two verdicts in his favor in ejectment, complainant has been allowed an injunction.^s But a distinction is to be observed between bills for the prevention of multiplicity of suits, or bills of peace, whose object is the suppression of useless and vexatious liti- gation, and cases where the real object of the relief sought is the consolidation of a number of suits of like nature, since in the former class of cases courts of equity may properly enjoin, but in the latter they will refuse to interfere. Thus, where an injunction was asked to stay proceedings in ninety-two actions of ejectment, until one or more might be tried, the parties, pleadings, title and testimony being the same in all the cases, the relief was refused, the real object sought being a consoli- dation of the actions which a court of law might properly grant."" §423. Repudiation of infant's contract. An injunction will not be allowed against procedings in ejectment brought by the owner of land after attaining his majority, who while an infant had contracted for the sale of the land, _ and given a bond for the convej-ance, but had repudiated the contract on coming of age, and refused to ratify the sale, even though the purchase money had been paid.^^ § 424. Statute of limitations. The fact that an action of ejectment is barred by the statute of limitations, will not of itself suffice to warrant an injunction against the proceedings, 35 Woods V. Monroe, 17 Mich., injunction would be allowed 238. against the remaining suits after 36 Leighton v. Leighton, 1 P. verdict obtained in several, qicosre. Wms., 671. 3s Brawner v. Franklin, 4 Gill, 37 Peters v. Prevost, 1 Paine C. 463. C, 64. Whether in such case the 390 INJUXCTIONS. [chap. VI. where the parties in interest have been incapacitated from bringing suit. Thus, ejectment by an administrator to recover land for the benefit of the heirs of a decedent will not be en- joined on the ground that the statute of limitations has run, where neither of the heirs has been in a condition to sue, one of them being won compos and the other a feme covert.^^ § 425. Rights of mortgagees. Where a preliminary injunc- tion has been granted to restrain the prosecution of an action of ejectment, upon the ground that the transaction out of which plaintiff in ejectment claims to derive title was in reality a mortgage, from which defendant seeks to redeem, and files a bill for that purpose, and to enjoin the proceedings at law, the injunction should be made perpetual on the right of redemption being established, and it is error if the court does not so direct.^^ But a mortgagee who has recovered judg- ment in ejectment for the mortgaged premises will not, before a hearing, be enjoined from proceeding with the enforcement of his judgment.^^ § 426. Parties to the action. As regards the parties who may properly enjoin proceedings in ejectment, it may be ob- served that the right to the relief is not confined to those who were originally joined as defendants in the action, but it may be extended to others who are subsequently joined as de- fendants. And a defendant in ejectment is not deprived of his right to relief against the judgment because of his hav- ing come into the ejectment suit after it was begun, by pur- chasing the interest of the tenant and joining with him in the defense.^- But an injunction has been refused when sought to restrain the execution of a judgment in ejectment upon a l)ill filed by a landlord, who might have made himself a de- fendant to the action of ejectment, but neglected so to do.^* 30 Fleming v. Collins, 27 Ga., 494. 4- Hackwith i\ Damron. 1 Monr., 40 Harbison v. Houghton, 41 111., 235. 522. ^•' Moses v. Lewis, Jac, 502. Carpenter v. Black Hawk Co., -'^ Matthews v. Skinker, 62 Mo., 65 N. Y., 43. 329. "'O Armstrong v. Sanford, 7 Minn., •"■» Dunham v. Collier, 1 Greene 49. (Iowa), 54. " McCnlla r. Beadleston, 17 R. I., 20, 20 Atl., 11. CHAP. Vll.J PERTAINING TO MORTGAGES. 419 sale of the premises under the mortgage and paid the money into court, and the court by its final decree determined to whom the money should be paid, it was held to be error to dissolve the injunction, and that it should have been made perpetual."^ § 460. General averments of misrepresentation by vendor insufficient. Where it is sought by a purchaser of real estate to enjoin its sale under a deed of trust given as security for notes for the unpaid purchase money, mere general averments of misrepresentations by the vendor concerning the title are not sufficient to warrant the interposition of the court, when it is not shown that any actual deception was either intended or accomplished by the vendor.^i § 461. Dissolution of the injunction. When the allegations of the bill upon which an injunction is obtained, restraining a sale of real estate under a deed of trust in the nature of a mortgage, are fully denied by defendant's answer, and are not supported by evidence upon the hearing, the injunction should be dissolved.^2 Where, however, it is necessary to ascertain the amount due from the debtor and for which the sale should be made, it is regarded as premature to dissolve an injunc- tion restraining a sale under a deed of trust, although the grounds upon which it was granted are not maintained, and it should be retained until such amount is determined."^ § 461 a. Sale under chattel mortgage, when enjoined. Upon a bill to enjoin a sale of chattels under a mortgage, the bill averring that the bonds secured by the mortgage were not lawfully issued and arc invalid in the hands of the holders, the answer denying the averments of the bill only upon in- formation and belief, it is proper to grant an interlocutory injunction until the rights of the parties can be fully heard and determined. ^^ 60 Gardner v. Hershey, 27 Ark., s* Carpenter v. Talbot, 33 Fed., 552. 537. As to the right to enjoin a 61 Walker v. Burks, 48 Tex., 206. sale of goods under a chattel mort- 62 Arbuckle v. McClanahan, 6 gage upon the ground that they West Va., 101. are not covered by the mortgage, 63 White V. Mechanics Building see Lanier v. Adams, 72 Grat, 145. Fund Association, 22 Grat., 233. 420 INJUNCTIONS. [chap. VII. II. Injunctions in Behalf of Mortgagees. § 462. When junior mortgagee allowed injunction. 463. Injunctions as between mortgagees and judgment creditors. 464. Rents and profits pending foreclosure; when receiver and in- junction allowed. 465. Transfer by mortgagor not enjoined when mortgage recorded. 466. Effect of mistake or uncertainty. 467. Creditors of mortgagor enjoined from levying upon crops. 468. Mortgages of chattels. § 462. When junior mortgagee allowed injunction. The aid of equity by injunction is frequently invoked in behalf of junior mortgagees, for the purpose of protecting their rights in the mortgaged premises and for the preservation and se- curity of their lien. And while the relief is rarely granted in behalf of a junior against a prior mortgagee to prevent the enforcement of the rights and equities of the latter under his prior mortgage, there are cases where an injunction is necessary to prevent a sale of the premises to the irreparable injury of the junior incumbrancer. For example, a junior mortgagee will be allowed to enjoin proceedings under a fore- closure whereby it is attempted to tack subsequent advances to the prior mortgage so as to create a lien to the prejudice of the puisne incumbrancer.^ And since a junior mortgagee is entitled to redeem from a prior mortgagee and upon such re- demption to be subrogated to his rights, upon a bill seeking such redemption and subrogation he may have an injunction against a sale or transfer of the judgment in foreclosure of the prior mortgage, having tendered the amount due upon the foreclosure. And an additional reason for the relief in such case is found in the fact that a sale under the foreclosure judg- ment under such circumstances would cast a cloud upon com- plainant's title.2 But a subsequent mortgagee will not be al- lowed to enjoin a sale of the mortgaged premises under a prior 1 Hughes V. Worley, 1 Bibb, 200. 2 Dings r. Parshall, 7 Hun, 522. CHAI'. VII.] PERTAINING TO MORTGAGES. 421 incumbrance, when he refuses to redeem under such incum- brance and only seeks to hinder the sale.^ And an additional ground for refusing the relief, under such circumstances, is found in the fact that the property is depreciating in value by lapse of time.^ Nor will a subsequent mortgagee be per- mitted to enjoin a sale of the premises under a forecolsure of a prior mortgage, when he was made a party to such fore- closure proceedings and could have interposed his equities in defense of that action.^ § 463. Injunctions as between mortgagees and judgment creditors. Relief by injunction is also granted as between mortgagees and judgment creditors of the mortgagor for the protection of the former in cases where they would otherwise be without adequate remedy for the protection of their mort- gage lien. Thus, one who has a prior lien by way of mortgage upon real estate, which is also subject to the lien of a judg- ment subsequent to the mortgage, if the fact of such priority is not disclosed by the record, may have an injunction to pre- vent an attempted sale of the property under the judgment as the absolute property of the judgment debtor, free from any lien.^ But a mortgagee can not enjoin a sale of the premises under a judgment subsequent to the mortgage, when it is not shown that the sale will not be made subject to the lien of the mortgage.''' Nor is a mortgagee entitled to relief in such case upon the ground that the judgment creditor is as- serting that plaintiff's mortgage and notes are fraudulent and void.^ But the holder of the bonds of a railway company se- cured by a mortgage of its property, which is prior to the lien of a judgment against the company, is entitled to an in- junction to prevent the enforcement of an execution against 3 Meysenburg v. Schlieper, 46 see Wiedner v. Thompson, 66 Iowa, Mo., 209. 283, 23 N. W., 670. 4 Id. "^ Ruthven Brothers v. Mast, 55 5 Bloomingdale v. Barnard, 7 Iowa, 715, 8 N. W., 659. Hun, 459. s Ramsdell v. T. W. P. Co., 84 G Plumb V. Bay, 18 Kan., 415. But Iowa, 484, 51 N. W., 245. 422 INJUNCTIONS. [chap. VII. the property of the company under such judgment.^ And a mortgagee whose lien is junior to that of a judgment creditor may have an injunction against a sale of the mortgaged prem- ises under the prior judgment, upon a bill alleging that the judgment has been fully paid and is being fraudulently kept on foot to defeat the mortgagee's security. Such a case is re- garded as affording strong ground for equitable relief, and is clearly distinguishable from the case of a mere general cred- itor, without lien or priority, who seeks to enjoin a transfer of his debtor's property.^ ° So where a deed of trust is a valid and subsisting lien upon real estate, a court of equity may, in behalf of the trustee, enjoin a sale of the same prem- ises under a judgment and execution to which the land is not subject.^ ^ But it is held in Louisiana that a mortgagee can not be allowed to enjoin a sale of the mortgaged premises under executions against the mortgagor, upon the ground of irregularity and illegality in the proceedings of the sheriff in making the sale; since if the sale be null, it can not affect the rights of the mortgagee; while if it be valid, he has a remedy at law to reach the proceeds of the sale.^- Nor can a mortgagee enjoin a judicial sale of the property in satisfac- tion of debts of a higher rank and having preference over his mortgage, merely because he was not notified of the order of sale.^^ § 464. Rents and profits pending foreclosure ; when receiver and injunction allowed. As regards the right to receive the rents and profits of the mortgaged premises pending a fore- closure, the mortgagor will not ordinarily be restrained before answer from receiving or collecting them.^^ But the rule is well established that inadequacy of the mortgaged premises Butler r. Rahm, 46 Md., 541. 12. James r. Breaiix, 26 La. An., 10 Brigham v. White, 44 Iowa, 245. 677. . I'' Wells V. Wells, 25 La. An.. 194. 11 Whitfielfl r. Clark, 48 Ala., n Oliver v. Decatur, 4 Cranch C. 555. C, 458. CHAP. VII. J PERTAINING TO MORTGAGES. 423 as a security for the indebtedness, coupled with insolvency of the mortgagor, will warrant a court of equity in appointing a receiver over the mortgaged property and enjoining the mortgagor from any interference with such receiver or with the property.^ ^ § 465. Transfer by mortgagor not enjoined when mortgage recorded. While an injunction is sometimes necessary in aid of a suit for a foreclosure by the mortgagee, yet when the mortgage is duly recorded so that its lien can not be impaired by a subsequent transfer of the premises by the mortgagor, a court of equity will not in aid of a foreclosure enjoin the mortgagor from transferring his interest in the premises. And the relief is properly refused in such ease, for the reason that, while an injunction might embarrass the mortgagor, it could not be of any advantage to the mortgagee.^ ^ § 466. Effect of mistake or uncertainty. Where through a mistake in the description a mortgage does not cover the entire premises intended to be conveyed, there is sufficient ground for invoking the protection of equity, and a purchaser at a foreclosure sale under the mortgage may enjoin the de- visee of the mortgagor from proceeding in ejectment to recover that portion of the premises which was omitted.^" So a sheriff may be enjoined from delivering a deed of premises sold by him by virtue of an execution in foreclosure proceedings when the execution by mistake has directed the sale of lands not included in the mortgage and not described in the bill.^^ And 15 Ruggles V. Southern Minne- Michigan Lake Shore R. Co., U. sota Railroad, U. S. Circuit Court, S. Circuit Court, Western District District of Minnesota, 5 Chicago of Michigan, 6 Chicago Legal News, Legal News, 110. And see as to 101; Hill v. Robertson, 24 Miss., the right of the mortgagee to a 338; Sea Insurance Co. v. Stebbins, receiver over the premises and to 8 Paige, 565. collect the rents pending his action is Breon r. Strelitz,, 48 Cal., 645. for a foreclosure, Quincy v. Cheese- i^ Waldron r. Letson, 2 McCart., man, 4 Sandf. Ch., 405; Brown r. 126. Chase, Walk. (Mich.), 43; Hyman is Corles r. Lashley, 2 McCart., V. Kelly, 1 Nev., 179; Keep r. 116. 424 INJUNCTIONS. [CIIAP. VII. where, in construing a mortgage, there is serious question as to whether certain machinery on the premises is included in it, a plain case is afforded for the interposition of equity to prevent the removal of the property; it being proper that the court should retain it within its jurisdiction until the question can be satisfactorily determined.^ ^ § 467. Creditors of mortgagor enjoined from levying upon crops. As regards the question of corps growing on the prem- ises at the time of a sale under foreclosure, it is held that the doctrine of emblements does not apply, and that such crops properly belonged to the purchasers at the foreclosure sale. Equity will therefore restrain the creditors of the mortgagor from proceeding under an execution to levy upon such crops.^^ And mortgagees who have taken possession under their mort- gage may enjoin one claiming under the mortgagor from re- moving crops which were growing upon the premises at the time of taking such possession.-^ § 468. Mortgages of chattels. Upon principles analogous to those which govern a court of equity in restraining the com- mission of waste by a mortgagor in possession in cases of real estate, a mortgagor of chattels may be restrained from mov- ing the property beyond the reach of the mortgagee, or from placing it where it will not be forthcoming for the satisfac- tion of the debt.22 So a mortgagee is entitled to an injunc- tion, pending the foreclosure of a chattel mortgage, to pre- vent acts of waste which result in the destruction of the mort- gaged chattels.-^ And a mortgagee of personal property^ where by the terms of the mortgage possession is to be re- tained until condition broken, may enjoin proceedings against 10 Hutchison f. Johnson, 3 Haist. -^ Clagett i\ Salmon, 5 Gill & Ch., 40. J-, 314. See also Valentine v. 20 Crews V. Pendleton, 1 Leigh, Washington, 33 Ark., 795. 297. -•' Schoonover v. Condon, 12 21 Bagnall v. Villar, 12 Ch. D.. Wash., 475, 41 Pac, 195. 812. CHAP. VII.] PERTAINING TO MORTGAGES. 425 the property by other creditors.^* While the principle is not disputed that the equity of redemption of a mortgagor of per- sonal chattels in possession may be levied upon and sold in satisfaction of an execution against the mortgagor, yet a court of equity may by injunction restrain the exercise of this right where it will greatly impair, if not largely destroy, the rights of the mortgagee to the property in question.^^ But a mort- gagee of chattels in possession has been refused an injunction to restrain their sale under execution against the mortgagor upon a judgment recovered after the execution of the mort- gage, the chattels having no especial or peculiar value which could not be fully compensated in an action at law.-^ Nor can a mortgagee of chattels enjoin the mortgagor from dis- posing of them when adequate relief may be had at law by an action of replevin for their recovery .^^^ So a junior mortgagee of chattels can not restrain their sale under a senior mortgage, upon the ground that a portion of the property is not covered by such senior mortgage, the remedy at law being ample in such case.2^ But a mortgagee of chattels may restrain the enforcement of a judgment of foreclosure upon the same chat- tels under a mortgage executed by the mortgagor to defraud his creditors, although complainant's mortgage is not yet due^ and regardless of the solvency or insolvency of the mort- gagor. 29 24 Curd V. Wunder, 5 Ohio St., nis, 32 Minn., 193, 20 N. W., 85. 92. -« Rankin v. Rankin, 67 Iowa, 25 Smithurst v. Edmunds, 1 Mc- 322, 25 N. W., 263. Cart., 408. 29 McCormick v. Hartley, 107 26 La Mothe v. Fink, 8 Biss., 493. Ind., 248, 6 N, E., 357. 27 Minnesota L, O. Co. v. Magin- 426 INJUNCTIONS. [chap. VII. III. Injunctions Concerning Third Parties. § 469. Proceedings under mortgage enjoined to prevent cloud upon title. 470. Mortgagee of chattels refused injunction against sale under execution. 471. Relief as between judgment creditors and mortgagees. 472. Assignees of mortgagor; purchaser subject to mortgage. 473. Injunction denied where remedy at law. 474. Foreclosure not enjoined because of failure of title. 475. Tenants in common. 476. Foreign corporation not enjoined from mortgaging its prop- erty. 477. Bill of sale in nature of mortgage. § 469. Proceedings under mortgage enjoined to prevent cloud upon title. Under its well established jurisdiction for the prevention of a cloud upon the title to real property, equity may restrain proceedings under a mortgage which is found to be a cloud upon the title of complainant. And where, under a parol agreement for the conveyance of lands, complainant had entered upon the same, paid the purchase money and re- mained in possession, making valuable improvements, but be- fore receiving his conveyance his vendor had mortgaged the premises to a third person, who took his mortgage with knowl- edge of complainant's rights, an injunction was allowed to re- strain proceedings under the mortgage as being a cloud upon complainant's title.^ So a sale under a mortgage in fraud of complainant's rights may be enjoined upon the ground of preventing a cloud upon title. Thus, where complainant re- quested his copartner to pay a mortgage for him and to charge it in account upon the firm books, and the latter did so, agree- ing also to procure its release and discharge, but fraudulently and in violation of his agreement caused it to bo assigned to defendant, it was held that a sale under the mortgage would be a fraud upon Complainant's rights and a cloud upon his 1 Terry v. Raseli, 32 Ark., 478. CHAP. VII.] PEKTAINING TO MORTGAGES. 427 title. It was, therefore, regarded as proper to enjoin such sale in an action for an accounting and for the cancellation of the mortgage and assignment.- So the owner of real estate may enjoin proceedings for the foreclosure of a void mortgage which constitutes a cloud upon his title.^ And when, after the satisfaction and discharge of a mortgage, it is assigned and a foreclosure and sale are had by the assignee, a pur- chaser from the mortgagor, who was not a party to the fore- closure suit and who had no notice of it until after the decree, may maintain a bill to set aside the conveyance under the foreclosure and may enjoin defendants from conveying or in- terfering with the premises."' But one who purchases real estate subject to a mortgage, while entitled to enjoin its sale under the mortgage until the amount actually due may be determined, is not entitled to such injunction after the de- termination of the amount of the indebtedness.^ And a sale of lands under a deed of trust will not be enjoined at the suit of one who is in possession claiming under a recorded legal title, when such title is superior to any which can be acquired by a purchaser at the sale, and when ample relief may be had at law against any assertion of title by such purchaser.^ § 470. Mortgagee of chattels refused injunction against sale under execution. In the case of a mortgage of chattels, under which the mortgagee has taken possession with a view to selling the property in satisfaction of the debt, he is not entitled to an injunction to prevent a judicial sale of the chattels under execution against the mortgagor. In such case, the property having no especial or peculiar character or value, and its real money value being readily ascertainable, what- ever damages may be sustained by the mortgagee by reason 2 Conkey v. Dike, 17 Minn., 457. And see this case as to the right s Yager v. Merkle, 26 Minn., 429, of the purchaser to enjoin a sale 4 N. W., 819. of chattels under a mortgage. 4 Matheson r. Thompson, 20 Fla., « Wilcox v. Walker, 94 Mo., 88, 790. 7 S. W., 115. 5 Osburn r. Andre, 58 Miss., 609. 428 INJUNCTIONS. [chap. VII. of the sale under execution may readily be determined and compensated by an action at law, and equity will not, there- fore, interfere by injunction to restrain the threatened sale. Nor does the fact that the mortgagee, in such case, can not avail himself of all possible legal remedies entitle him to re- lief by injunction if any form of action at law is open to him in which a complete and adequate remedy may be had." - La Mothe v. Fink, 8 Bissell, 493; S. C, 12 Chicago Legal News, 152. Ine rule as stated in the text, and the reasons in its support are very clearly stated in the opinion of Mr. Justice Dyer in this case, as fol- lows: "Accepting the allegations of the bill as true, and admitting that complainant was in posses- sion and held the legal title to the property when it was seized, the question is whether there is such want of adequate remedy at law as entitles complainant to come into a court of equity for relief by injunction to restrain the threat- ened disposition of the property at execution sale. There is a familiar class of cases cited in the element- ary works, in which, on account of their antiquity or historical character, or other peculiar value, jurisdiction in equity was enter- tained to prevent the transfer or defacement or other injury of ar- ticles of personal property, or to compel their specific delivery. But it is stated that these were cases where the articles were of peculiar value and importance, and the loss of which could not be fully com- pensated in damages. Such was the case of the silver altar-piece bearing a Greek inscription, and of furious antiquity, and which could not be replaced in value: Somer- set V. Cookson, 3 P. Will., 390; and of the horn which constituted the tenure by which an estate was held: Pusey v. Pusey, 1 Vern., 273; and of the silver tobacco box: Fells V. Read, 3 Ves., 70; and of the masonic dresses and decora- tions: Lloyd V. Loaring, 6 Ves., 773. Other similar cases involving- articles of property which were family relics or heirlooms, are re- ported in 13 Ves., 95; 3 Ves. & B., 16, 17, 18, and 10 Ves., 140, 148, 163. All these were cases where the chattels were articles of antiquity or curiosity, or were memorials of affection, or constituted insignia of office, and equitable interposition to preserve them to the owner in specie, was sustained on the ground that they were of peculiar charac- ter and value, and that the recov- ery of their intrinsic value in money would not be adequate sat- isfaction to the' owner. There is another class of cases in which courts of equity have interposed to protect the owner of specific chat- tels in the beneficial enjoyment and use of them in specie. As where certain articles of property were placed in the hands of an agent to be held for the owner, and the agent has threatened to dispose of them to a third party, in viola- tion of his trust. The ground upon CHAP. VII.] PERTAINING TO MORTGAGES. 429 § 471. Relief as between judgment creditors and mort- gagees. A judgment creditor of a mortgagor has been al- lowed an injunction to restrain the mortgagees of his debtor, under a mortgage with power of sale, from paying to the debtor any moneys which they might realize under the power which equitable relief in such cases has been afforded, is found to lie in the fiduciary relation which ex- isted between the parties, together with the threatened mischief. Wood V. Rowcliffe, 3 Hare, 308. The principle upon which jurisdic- tion may be invoked to grant re- lief by injunction or decree for specific delivery of personal prop- erty in the classes of cases men- tioned, is plainly not applicable to the case at bar, for here the case is simply that of seizure and threat- ened sale upon execution of or- dinary personal property, the en- tire and actual value of which for all purposes is ascertainable, and is wholly measurable by money, and which the alleged owner holds only for purposes of sale and con- version into money, to satisfy a debt. * * * Now, bearing in mind that the application to a par- ticular case of the principle that the absence of a plain and adequate remedy at law offers the only test of equity jurisdiction, must wholly depend upon the character of the case itself, it must be said of the case at bar, that it presents no pe- culiar or extraordinary features, and that it is plainly distinguish- able from the cases that have been noticed, in which relief by injunc- tion was successfully invoked. Why is not complainant's remedy at law, taking the facts as averred in the bill, plain and adequate? She alleges that she took posses- sion of the property in question under her mortgage. She in effect claims legal title. She took pos- session and held the property for one purpose only, namely, to sell and convert it into money for sat- isfaction of her debt. The property is not of peculiar character or value. Its value is readily ascer- tainable. It has only for her a money value. A recovery of its value affords complete compensa- tion. Whatever damages she may sustain by execution sale of the property can be completely re- paired at law. There was some discussion on the argument as to whether she could maintain trover or replevin in this court. Upon that question I forbear to express an opinion. But undoubtedly she could maintain trespass or trover against the marshal, if her claim be well founded in the state court. It is said that she can not maintain replevin in the state court. And so it was argued that her remedy at law was not adequate unless she could have the benefit of all possi- ble legal remedies. But it does not follow because she may not be able to maintain replevin, that an action to recover compensation in damages does not afford adequate remedy. Plain and adequate rem- edy at law does not mean an abil- 430 INJUNCTIONS. [CIIAP. VII. of sale.^ So a judgment creditor may enjoin the mortgagee of his debtor from assigning a mortgage given b}^ the debtor without consideration from the mortgagee and in anticipa- tion of the adverse outcome of litigation pending between complainant and the debtor." But a judgment creditor will not be enjoined from satisfying his judgment out of the prop- erty of his debtor, which is subject to a mortgage, merely be- cause possession of the property by the debtor is necessary to enable the latter to pay the mortgage.^*^ And where a mort- gagee of chattels took possession of the property upon default in payment and advertised it for sale, and a judgment cred- itor of the mortgagee then levied upon the chattels, it was held that the mortgagee was not entitled to an injunction against the sale by such judgment creditor, the legal title being re- garded as in the mortgagee subject to defeasance upon per- formance of the condition.^ ^ §472. Assignees of mortgag-or; purchaser subject to mort- gage. Equity will not enjoin a prior mortgagee, under a mort- gage with power of sale, from selling the premises in satis- faction of the debt, upon a bill filed by assignees of the mort- gagor under an assignment for the benefit of creditors exe- cuted subsequent to the mortgage, when the grounds urged for the injunction may all be presented and heard before the ity to resort to every remedy which tained. Moreover in determining the forms of legal procedure give, value, the complainant would not If any form of action at law will be restricted to amounts realized give a complete and adequate rem- for the property by the marshal on edy, then she is within the prin- execution sale. She would be at ciple which tests the right to resort liberty to recover actual value, to equity. In an action at law for though the marshal might not the alleged trespass, or for conver- have realized one-half such value, sion of the property, the measure Application for injunction denied." of damages would be the value of « Thornton ;;. Finch, 4 Gif., 515. the property when taken, with in- » Orr v. Peters, 197 Pa. St., 606, terest from the time of the taking 47 Atl.. 849. to the time of the trial, and this i« Coe v. Knox, 10 Ohio St., 412. would under the facts as averred 'i Adams i'. Nebraska City Bank, in the bill, cover all damages sus- 4 Neb., 370. CHAP. VII.] PERTAINING TO MORTGAGES. 431 proper court upon an application to confirm the sale.^- And, generally, it may be said that a purchaser of real estate subject to a mortgage occupies no better position than the mortgagor for the purpose of restraining a sale under the mortgage, and he can ordinarily urge no defense which could not have been urged by the mortgagor.^ ^ § 473. Injunction denied where remedy at law. A sale under a mortgage will not be enjoined upon the application of one who has ample remedy at law for the grievance which is made the ground of his application for equitable relief, the injunc- tion being withheld in such case in conformity with the gen- eral doctrine denying the extraordinary remedies of equity in cases which are remediable at law. An injunction will, there- fore, be refused against a sale of mortgaged premises upon a bill by complainant claiming title in himself when full re- lief may be had at law by asserting his claim of title in the method prescribed by statute.^-* §474. Foreclosure not enjoined because of failure of title. A court of equity will not interfere by injunction with the foreclosure of a deed of trust in the nature of a mortgage se- curing unpaid purchase money, upon the ground of a failure of title to a portion of the premises conveyed, when the pur- chaser and his grantee have remained in undisturbed posses- sion of the premises under covenants of warranty, no proceed- ings having been taken for eviction and no adverse title hav- ing been asserted. ^^ § 475, Tenants in common. As between tenants in common of real property, where one co-tenant has attempted to mort- gage the entire estate and the mortgage has been foreclosed, it is proper to enjoin a sale of the premises upon the appli- cation of his co-tenants, until partition may be made between the co-tenants, the mortgagor being alleged to be insolvent.^'' 12 Powell V. Hopkins, 38 Md., 1. is Harding v. Commercial Loan 13 Lee V. Packard, 25 La. An., Co., 84 111., 251. 397. 16 Hines v. Munnerlyn, 57 Ga., 1-1 Bailey c. Simpson, 57 Ga., 523. 32. 432 INJUNCTIONS. [chap. VII. § 476. Foreign corporation not enjoined from mortg-aging its property. Substantial injury to the rights of the party com- plaining being an element which must always be made to ap- pear to the satisfaction of a court of equity before it will grant an injunction, a foreign corporation will not be enjoined at the suit of a creditor from mortgaging its property to se- cure an issue of bonds where it is not shown that the mortgage, if executed, would impair such creditor's rights; and having no lien upon the property which is to be mortgaged, he stands in no better position than other general creditors, and is not entitled to an injunction.!^- § 477. Bill of sale in nature of mortgage. Where the pri- mary object of the action is to have an instrument purport- ing to be a bill of sale declared a mortgage, and to have it canceled and for an accounting, an injunction to restrain the sale or disposition of the goods covered by the bill of sale is an appropriate remedy as ancillary to the principal relief sought.!^ 17 Rogers V. Michigan Southern is Laeber v. Langhor, 45 Md.,- R. Co.. 38 Barb., 539. 477. €HAP. VII.] PERTAINING TO MORTGAGES. 433 IV. Waste of Mortgaged Premises. § 478. Waste by mortgagor may be enjoined. 479. Grounds of the relief. 480. Cutting of timber; removal of timber. 481. Removal of fixtures, buildings and machinery. 482. When mortgagor denied relief. 483. Rights of mortgagee against alienee of mortgagor. § 478. Waste by mortgagor may be enjoined. The jurisdic- tion of equity to restrain the commission of waste by the mort- gagor in possession is clearly established from the authorities and is exercised for the purpose of preventing such acts as would depreciate the value of the premises and render the security insufficient. The rights of the mortgagee being in their nature purely equitable and to be enforced by proceed- ings in equity, it would be falling short of the demands of justice if a court of equity could not in a proper case inter- fere by injunction to protect the property which is the sub- ject of controversy from destruction.^ It is not necessary that the mortgage should be due to warrant the relief, and the court may, if necessary, interfere before the mortgage is due,2 or after forfeiture on the part of the mortgagor and after a right of action has accrued.^ And the fact that the mortgagor has been declared a bankrupt and that his property is vested in the hands of an assignee affords strong founda- tion for the exercise of the jurisdiction.* § 479. Grounds of the relief. The interfereiice of equity to prevent the commission of waste by the mortgagor in pos- 1 Brown v. Stewart, 1 Md. Ch., Exhibition Co., 188 111., 19, 58 N. S7; Maryland v. Northern C. R. E., 611. Co., 18 Md., 193; Ensign v. Col- 2 Murdock's Case, 2 Bland, 461; burn, 11 Paige, 503; Gray v. Bald- Salmon r. Clagett, 3 Bland, 126. win, 8 Blackf., 164; Bunker v. s Maryland v. Northern C. R. Locke, 15 Wis., 635; Real Estate Co., 18 Md., 193. T. Co. i\ Hatton, 194 Pa. St., 449, * Ensign v. Colburn, 11 Paige, 45 Atl., 379; Williams r. Chicago 503. 28 434 INJUNCTIONS. [chap. VII. session rests upon two grounds: first, the right of the mort- gagee to the protection of the entire security unimpaired dur- ing the life of the mortgage;^ and, second, that as between mortgagor and mortgagee the latter is deemed in equity the owner of the fee, and as such entitled to protection.^ But even where the mortgagee is not considered as the owner of the fee he is entitled to the protection of equity against the com- mission of waste.'^ Thus, where it is held that the mortgage is merely a security for the debt the relief will be allowed to prevent the destruction of the security.^ But if the injury complained of is such that it may be adequately compensated in damages in an action at law, equity will not interpose in the absence of any allegations of insolvency .'^ § 480. Cutting- of timber ; removal of timber. The principal ground, however, upon which equity interferes to enjoin the commission of waste by a mortgagor in possession is the im- pairment of the security, the land itself being regarded as the primary fund for the payment of the debt. And when the mortgagor in possession is committing waste by the cutting of timber to such an extent as to seriously impair the mort- gage security, an appropriate case for an injunction is pre- sented, even though the mortgagor is not shown to be insol- vent. If, therefore, the threatened injury is irreparable in its nature, as in the cutting of timber, and so impairs the mort- gage security as to render it inadequate, the mortgagee may have an injunction without averring or proving the insolvency of the mortgagor.io So upon a bill to foreclose his mortgage, 5 Nelson v. Pinegar, 30 111., 473; » Robinson v. Russell, 24 Cal., Fairbank v. Cudworth, 33 Wis., 467. For further consideration of 358. ^r the subject of waste committed by 6 Nelson v. Pinegar, 30 111., 473. mortgagor in possession, see chap- 7 Brady v. Waldron, 2 Johns. Ch., ter XI, post. 148. 1" Fairbank r. Cudworth, 33 Wis., « Cooper r. Davis, 15 Conn., 561; 358; Starks v. Redfield, 52 Wis., Murdock's Case, 2 Bland, 461; Sal- 349. mon V. Clagett, 3 Bland, 126. CHAP. VII.] PERTAINING Ta MORTGAGES. 435 llie mortgagee is entitled to the aid of an injunction to re- strain the mortgagor in possession from cutting timber upon the premises, when it is shown that the land without the tim- ber is a scanty and insufficient security for the debt.^^ So the purchaser of mortgaged premises at a sale under a foreclosure may have an injunction against a terre-tenant holding under the mortgagor, to restrain him from committing waste by the destruction of timber, to the serious injury of the premises, such purchaser being as clearly entitled to the relief as a mort- gagee himself would be.^- While, however, equity may prop- erly enjoin the commission of waste by the mortgagor, con- sisting in the cutting of timber which was standing or grow- ing at the time of service of the injunction, it will not restrain the removal from the premises of timber already cut before such service, when there is no averment of the mortgagor's insolvency, and no evidence of fraud, and when it does not appear that there is no redress at law.^^ § 481. RemovaJ of fixtures, buildings and machinery. A court of equity may likewise interfere by injunction to re- strain the commission of waste upon the mortgaged premises by the removal of fixtures and implements included in the mortgage, when such removal w^ould have the effect of impair- ing the security.^ ^ And as between the mortgagor and mort- gagee, equity may interpose by injunction to prevent the severance and removal from the mortgaged real estate of a frame building which forms a part of the realty, and which 11 Humphreys v. Harrison, 1 Jac. New York code of procedure, when & W., 581. after a foreclosure sale, but before 12 Thompson v. Lynam, 1 Del. its confirmation, the mortgagor in Ch., 64. possession attempts to remove ma- 13 Bank of Chenango v. Cox, 1 chinery from the premises, which C. E. Green, 452. the purchaser claims ^H" part of i-* Robinson v. Preswick, 3 Edw. the realty, the mortgagor may be Ch., 247; Williams v. Chicago Ex- enjoined. Mutual Life Ins. Co. v. hibition Co., 188 111., 19, 58 N. E., National Bank of Newburgh, 18 611. See also Dudley r. Hurst, 67 Hun, 371. Md., 44, 8 All., 901. And under the 436 INJUNCTIONS. [chap. VII. the mortgagor has conveyed to a purchaser who is seeking its removal. Tlie remedy by injunction is regarded as espe- cially appropriate in such a case, since an action for damages would not afford adequate relief.^ "^ Nor is the relief for the prevention of this species of waste restricted to cases of strict mortgages, but it may be extended in a proper case in aid of the holder of a contract in the nature of a mortgage. And when in a proceeding to foreclose such a contract it is shown that part of the machinery and fixtures included in the con- tract and covered by the lien have been removed from the premises, and have been levied upon under judgments and proceedings in attachment, such removal rendering plaintiff's security inadequate, it is proper to enjoin the sale or dispo- sition of such fixtures and machinery, notwithstanding their severance and removal from the realty.^ *^ So the purchaser at a foreclosure sale may restrain the mortgagor from re- moving from the mortgaged premises machinery which the purchaser claims to be covered by the mortgage, the relief being proper in such case until the question of title to such alleged fixtures may be determined.^ '^ § 482. When mortgagor denied relief. In conformity with the general rule denying relief by injunction where adequate remedy exists at law, a mortgagor will not be allowed to enjoin the enforcement of the mortgage upon the ground of waste by the mortgagees in the management of other premises leased to them by the mortgagor as additional security for the debt, when full redress for such mismanagement may be had by pro- ceedings at law for that puri)ose.^^ §483. Rights of mortgagee against alienee of mortgagor. To warrant an injunction in behalf of a mortgagee not in 15 State Savings Bank r. Kerche- i7 Mutual Life Ins. Co. v. Bigler, val, 65 Mo., 682. 79 N. Y., 568. 16 Kimball v. Darling, 32 Wis., i« Alston v. Wheatfey, 47 Ga.. €75. And to the same effect see 646. Taylor r. Collins, 51 Wis., 123, 8 N. W.. 22. CHAP. VII.] PERTAINING TO MORTGAGES. 437 possession against an alienee of the mortgagor, there must be some substantial injury shown to the freehold, of such a nature as to impair the mortgage security. And the removal from the premises of decayed rails and of the scattered planks of a building which has fallen by reason of its own decay, does not constitute such waste as to justify relief by injunction.^^ 19 Coker v. Whitlock, 54 Ala., 180. CHAPTER VIII. OF INJUNCTIONS AGAINST TAXES. I. Principles Governing the Jurisdiction § 484 II. Cloud upon Title 524 III. Property Exempt From Taxation 530 IV. Municipal Taxation 536 V. Municipal-Aid Taxes 561 VI. Bounties 570 VII. Parties 573 I. Principles Governing the Jurisdiction. § 484. Conflict of authority. 485. Weight of authority averse to interference; exceptions. 486. Injunction not allowed for irregularities. 487. Equity powerless to correct tax. 488. Irregularities in assessment no ground for injunction. 489. Illustrations of irregularities on which injunction refused. 490. Errors and mistakes of officers; distinction between void and voidable tax. 490c. When overvaluation no ground for injunction. 491. Remedy at law; irreparable injury; insolvency of assessor. 492. Further illustrations of the general doctrine. 493. Boards of review or equalization, their action not revised in equity; mandamus; when appeal to board unnecessary. 494. Fraudulent conduct or excess of authority by board of equaliza- tion ground for injunction. 495. Want of notice to taxpayer of increased valuation. 496. Unconstitutionality of law, conflict of authority. 497. Payment or tender of legal tax a condition to relief. 498. The rule illustrated; not applicable to entire illegal assessment. 499. The rule as affected by legislation. 500. Fraud as a ground for relief; when purged by appeal. 500a. Arbitrary discrimination in assessment. 501. Omission of officer to take oath or to give bond. 502. Want of power, ground for injunction; former judgment sus- taining tax. 503. The Illinois doctrine. 504. The Wisconsin doctrine. 438 CHAP. VIII.] AGAINST TAXES. 439 § 505. Personal property tax not enjoined; mill property; payment; exceptions to rule. 506. Tax upon capital stock and franchises of corporations. 507. Taxation of national banks. 508. Internal revenue taxes. 509. Levy on property for tax of another. 510. Effect of legislation curing defects. 511. Preliminary proceedings; extending tax on books. 512. Payment of taxes; set-off. 513. Refusal of collector to receive amount fixed by arbitration. 514. Recoupment of taxes not allowed. 515. Refusal of injunction confers no authority; decree void as to subsequent taxes. 516. Unincorporated company; illegal contracts for improvements. 517. When personal property to be first taken. 518. When cause of action partly good. 519. Injunction refused pending mandamus to allow appeal; insuffi- cient bond on appeal. 520. Franchises. 521. Depreciation of property no ground for injunction. 522. When sale of personal property enjoined. 523. Homestead entry. 523a. Taxation of railway property. 523 &. Property assessed in one place but taxable at another. § 484. Conflict of authority. Upon no breach of the law of injunctions has there been manifested greater apparent want of harmony in the decisions of the courts than that pertain- inji' to the exercise of the jurisdiction in restraint of taxation. While it is not difficult to deduce from the great mass of au- thorities bearing upon the general subject certain cardinal principles which may be said to have the weight of authority in their support, yet it is difficult, if not impossible, to com- pletely and perfectly harmonize these principles with all the decided cases. And the most patient and painstaking analysis must still fail to reconcile the opinions of many of the most respectable courts with the more generally received doctrines governing applications for preventive relief in restraint of the taxing power. Upon the one hand, acting upon the prin- ciple that a tax illegally or improperly imposed confers no authority upon the officer who attempts its enforcement, but 440 INJUNCTIONS, [chap. VIII. renders him a mere trespasser, liable in an action at law for the damages incurred, and upon the kindred principle that all grievances sustained in the exercise of the taxing power should be remedied at law and not in equity, the courts have in most cases been averse to granting preventive relief against the collection of the revenue, and have preferred to leave the parties complaining to the ordinary legal remedies. Upon the other hand, the decisions are neither few in num- ber nor w^anting in respectability which have inclined to a departure from the doctrine of non-interference in equity with the collection of taxes; and it will be found, as we proceed,, that the courts have in many instances extended preventive^ relief by injunction against the exercise of the taxing power in cases where such relief was unwarranted, either upon prin- ciple or upon the clear weight of authority.^ §485. Weight of authority averse to interference; excep- tions. As already indicated, the decided w^eight of authority is plainly averse to equitable interference wuth the exercise of the taxing power in the ordinary process of the collection of the revenue. And it may be laid down as a general rule that equity will not interfere by injunction with the collection of a tax which is alleged to be illegal or void, merely because of its illegality, hardship or irregularity, but there must be- some special circumstances attending the threatened injury to distinguish it from a mere trespass, and thus to bring the case within some recognized head of equity jurisprudence; other- wise the person aggrieved will be left to his remedy at law.^^ 1 For an exceedingly clear and Rep., 646, reversing S. C, 39 satisfactory discussion of the sub- Fed., 712; Allen v. Car Co., 139 ject of this chapter, see Cooley on U. S., 658, 11 Sup. Ct. Rep., Taxation, 536 et seq. 682; Pacific Express Co. v. Sei- 2D0WSV. Chicago, 11 Wal., 108; bert, 142 U. S., 339, 12 Sup. Ct. Hannewinkle v. Georgetown, 15 Rep., 250, affirming S. C, 44 Fed., Wal., 547; State Railroad Tax 310; Pittsburg, etc., Ry. v. Board Cases, 2 Otto, 575; Shelton v. of Public Works, 172 U. S., Piatt, 139 U. S., 591, 11 Sup. Ct. 32, 19 Sup. Ct. Rep., 90; Arkansas CHAP. VIII.] AGAINST TAXES. 44] An exception to the rule has been allowed in cases where the proceedings, though illegal and void, were under legal color Building Ass'n v. Madden, 175 U. S., 269, 20 Sup. Ct. Rep., 119; In- diana Mfg. Co. V. Koehne, 188 U. S., 681, 23 Sup. Ct. Rep., 452; Rob- inson V. City of Wilmington, 13 C. C. A., 177, 65 Fed., 856; Hoey v. Coleman, 46 Fed., 221; Nye v. Town of Washburn, 125 Fed., 817; Williams v. Button, 184 111., 608, 56 N. E., 868; Alabama Gold Life Insurance Co. v. Lott, 54 Ala., 499; Hey wood v. Buffalo, 14 N. Y., 534; Susquehanna Bank t\ Supervisors of Broome Co., 25 N. Y., 312; Mu- tual Benefit Life Insurance Co. v. Supervisors, 33 Barb., 322; Burnes r. Mayor, 2 Kan., 454; Sayre v. Tompkins, 23 Mo., 443; Barrow v. Davis, 46 Mo., 394; McPike v. Pew, 48 Mo., 525; Warden v. Supervisors, 14 Wis., 618; Kellogg v. Oshkosh, lb., 623; Clarke tJ. Ganz, 21 Minn., 387; Western R. Co. v. Nolan, 48 N. Y., 513; Wells v. Dayton, 11 Nev., 161; Bogert v. City of Eliza- beth, 10 C. E. Green, 427; McClung V. Livesay, 7 West Va., 329; Doug- lass V. Town of Harrisville, 9 West Va., 162; Wilson v. Town of Phil- ippi, 39 West Va., 75, 19 S. E., 553; Blue Jacket C. C. Co. r. Scherr, 50 West Va., 533, 40 S. E., 514; Hark- ness V. Board of Public Works, 1 McArthur, 121; City Council v. Eayre, 65 Ala., 564; Greenhood v. MacDonald, 183 Mass., 342, 67 N. E., 336; Minneapolis, etc. Ry. Co. r. Dickey County, 11 N. Dak.. 107, 90 N. W., 260; Welch v. Clatsop County, 24 Ore., 452, 33 Pac, 934; Insurance Co. v. Bouner, 24 Col., 220, 49 Pac, 366; Bellevue Imp. Co. V. Village of Bellevue, 39 Neb., 876, 58 N. W., 446. But see, contra, Williams v. Peinny, 25 Iowa, 436; Jeffersonville v. Patter- son, 32 Ind., 140; Fahlor v. Board of Commissioners, 101 Ind., 167; Hobbs V. Board of Commissioners, 103 Ind., 575, 3 N. E., 263; Board of Commissioners v. Barker, 25 Kan., 258; Topeka City Ry. Co. v. Rob- erts, 45 Kan., 360, 25 Pac, 854; Topeka W. S. Co. v. Roberts, 45 Kan., 363, 25 Pac, 855; St. Louis & S. F. R. Co. V. Apperson, 97 Mo., 300, 10 S. W., 478; Chicago, B. & Q. R. Co. V. Cass County, 51 Neb., 369, 70 N. W., 955; Chicago, B. & Q. R. Co. V. Nebraska City, 53 Neb., 453, 73 N. W., 952; Penick v. High S. Mfg. Co., 113 Ga., 592, 38 S. E., 973; Wood v. Draper, 24 Barb., 187; S. C, 4 Ab. Pr., 322, where it is held that a tax contrary to law, or levied without authority of law, may be enjoined, although in the latter case the relief was denied because complainant had not aver- red in his bill that it was filed in behalf of all others similarly situ- ated, the court holding that such an averment was necessary to a complete determination of the rights of the parties. In Heywood V. Buffalo, 14 N. Y., 534, it is held that three exceptions exist to the rule, as stated in the text: first, where the proceedings will neces- sarily lead to a multiplicity of suits; second, where they lead in their execution to the commission of irreparable injury to the free- hold; third, where the claim of: 442 INJUNCTIONS. [chap. VIII. and apparently authorized by law.^ So where there was an entire absence of authority for the assessment of the tax, or for proceedings thereunder, the relief has been granted. Thus, a sheriff whose term of office has expired has been enjoined from selling property in satisfaction of the tax, which he might rightfully have done during his term."* And a tax levied without authority by a corporation, or by persons acting as such, may be enjoined/'' So where the officers levying the tax were improperly elected and their action is therefore void,*' or where the tax is levied by less than the requisite majority of a board of supervisors intrusted with the taxing power, an injunction may be allowed." So also an injunction will be granted against a tax based upon an increase in plaintiff's assessment made by a board of review after the expiration of the adverse party to the land sold for the unpaid taxes is valid upon the face of the instrument, or the proceedings sought to be set aside are valid upon their face and intrinsic facts are necessary to be proven in order to establish the invalidity or illegal- ity. "Whenever," say the court, "a case is made by the pleadings fall- ing within these exceptions, or either of them, equity will inter- pose to arrest the excessive litiga- tion, or prevent the irreparable in- Jury, or remove the cloud from the title." However clear and satis- factory this statement of the ex- ceptions to the rule may appear, u will be found as we proceed that it does not comprehend all the rec- ognized exceptions, and a serious conflict of authority may be ob- served running through all the cases. •^ Burnet r. Cincinnati, ?, Ohio, 73; Culbertson r. Same, KJ Ohio, o74; .Tonas r. Same, 18 Ohio, 318; McDonald v. Murphree, 45 Miss., 705; Coulson v. Harris, 43 Miss., 728. But this exception has been denied in McCoy i\ Chillicothe, 3 Ohio, 370. 4 Fremont v. Boling, 11 Cal., 380. And see Durham v. Linderman, 10 Okla., 570, 64 Pac, 15, where, in a similar case, an injunction was granted under the provisions of a statute authorizing such relief against a levy under an illegal tax or against any proceeding to col- lect the same. 5 Beverly v. Sabin, 20 111., 357; Ottawa V. Walker, 21 111., 610. It is difficult, however, to perceive any sufficient reason why the relief should be granted in such cases, since the persons thus assuming to enforce the tax without author- ity are trespassers, and are liable at law for the damages incurred. >> Kinyon v. Duchene, 21 Mich., 498. ~ Supervisors i\ Webster, 53 111., 141. CHAP. VllI.J AGAINST TAXES. 443 their session as fixed by law.^ So equity will restrain a county clerk from extending' a school tax levied by school directors upon property in a school district where their jurisdiction had previously ceased.^ These exceptions, however, with others to be noticed hereafter, only serve to emphasize the general doctrine as above stated, and it may now be accepted as the established rule that equitable relief will not be allowed because of mere illegalities, such as excess in valuation, or because of the hardship and injustice of the law under which the taxing power is exercised. ^*^ In the absence, therefore, of some cir- cumstances to bring the case within some of the well defined heads of equity jurisdiction, preventive relief will not be ex- tended merely upon the ground of the illegality or hardship of the tax, and for all such grievances the taxpayer, if en- titled to any remedy, should seek it in a legal rather than an equitable forum. And the federal courts sitting in equity in the different states interfere with extreme caution with the collection of the revenue of the states, or of their public or mu- nicipal agencies, and will not interfere by injunction unless in a plain case of equitable jurisdiction and of great injury for which there is no adequate remedy at law.^^ Where, however, the legal remedy is inadequate for the proper protection of the plaintiff' 's rights, a federal court may properly restrain the enforcement of an illegal tax levied by state authority. Thus, where resort to the legal remedy would subject the taxpayer to a multiplicity of separate actions against each of the several taxing municipalities for the recovery of the illegal tax, equi- table relief is properly granted.^- So where the legal remedy 8 Yocum V. Bank, 144 Ind., 272, n Union Pacific R. Co. v. Lincoln 43 N. E., 231. Co., 2 Dill., 279. And see as to the 9 School Directors v. School Di- right to enjoin a state tax in the rectors, 135 111., 464, 28 N. E., 49. federal courts, Wells v. Central 10 Hannewinkle v. Georgetown, Vermont R. Co., 14 Blatch, 426. 15 Wal., 547; State Railroad Tax 12 Pyle v. Brenneman, 60 C. C. Cases, 2 Otto, 575; Alabama Gold A., 409, 122 Fed., 787. Life Insurance Co. v. Lott, 54 Ala., 499; Gage v. Evans, 90 111., 569. 444 INJUNCTIONS. [chap. VIII. depends for its adequacy entirely upon the will of the oppos- ing party, it is not regarded as adequate within the meaning of the rule and relief by injunction will therefore be allowed.^^ § 486. Injunction not allowed for irregularities. Nor will equity interfere by injunction with the enforcement or col- lection of taxes because of irregularities, illegalities or errors in the assessment of the tax, or in the proceedings incident to its collection, or in the execution of the power conferred upon taxing officers, but in all such cases the taxpayer seek- ing relief will be left to pursue his remedy at law.^* And 12 Bank of Kentucky r. Stone, 88 Fed., 383. i-t Clinton, etc.. Appeal, 56 Pa. St., 315; O'Neal v. Virginia B. Co., 18 Md., 1; Livingston r. Hollen- beck, 4 Barb., 9; Macklot v. Daven- port, 17 Iowa, 379; Center Co. v. Black, 32 Ind., 468; Warden r. Sup- ervisors, 14 Wis., 618; Kellogg v. Oshkosh, lb., 623; Exchange Bank V. Mines, 3 Ohio St., 1; Jackson i\ Detroit, 10 Mich., 248; Williams v. Mayor, 2 Mich., 560; Greene v. Mumford, 5 R. I., 472; Schofield v. Watkins, 22 111., 66; Chicago, B. & Q. R. Co. V. Frary, lb., 34; Merritt r. Farris, lb., 303; Munson v. Min- or, lb., 594; Metz v. Anderson, 23 III., 463; Hallenbeck r. Hahn, 2 Neb., 377; Iowa Railroad Land Co. V. County of Sac, 39 Iowa, 124 Same v. Carroll Co., 39 Iowa, 151 Gay V. Hebert, 25 La. An., 196 Challiss r. Commissioners of Atch- ison Co., 15 Kan., 49; Stebbins v. Challiss, 15 Kan., 55; Supervisors V. Jenks, 65 111., 275; Swinney v. Beard, 71 111., 27; George v. Dean, 47 Tex., 73; Hall r. Houston & T. C. R. Co., 39 Tex., 286; Whittaker V. City of Janesville, 33 Wis., 76; Brown i\ Herron, 59 Ind., 61; City of Delphi V. Bowen, 61 Ind., 29; Western R. Co. v. Nolan, 48 N. Y., 513; Parker v. Challis, 9 Kan., 155; Smith V. Commissioners of Leaven- worth, lb., 296; City of Lawrence v. Killam, 11 Kan., 499; Coulson v. Harris, 43 Miss., 728; Albany & B. M. Co. V. Auditor-General, 37 Mich., 391; Rio Grande R. Co. v. Scanlan, 44 Tex., 649; Adams r. Beman, 10 Kan., 37; Finnegan v. City of Fer- nandina, 15 Fla., 379; Huck v. Chi- cago & Alton R. Co., 86 111., 352; Chicago, B. & Q. R. Co. v. Siders, 83 111., 320; Floyd r. Gilbreath, 27 Ark., 675; Murphy v. Harbison, 29' Ark., 340; Savings & Loan Society V. Austin, 46 Cal., 415; Houghton t?. Austin, 47 Cal., 646; Central Pa- cific R. Co. V. Corcoran, 48 Cal., 65; Dean r. Davis, 51 Cal., 406; Rock- ingham Savings Bank v. Ports- mouth, 52 N. H., 17; Brown v. Con- cord, 56 N. H., 375; Union Trust Co. V. Weber, 96 111., 346; People's Savings Bank v. Tripp, 13 R. I., 621; Keigwin r. Drainage Commis- sioners, 115 111., 347, 5 N. E., 575; Kansas City, F. S. & G. R. Co. v. Tontz, 29 Kan., 460; Ryan t'. Board. Warden v. Supervisors, 14 Wis., 618; Kellogg iK Oshkosh, lb., 623. Warden v. Supervisors was a proceeding in equity to enjoin the execution of a deed of certain lands sold for taxes, upon the ground of irregularities in the as- sessment. The chief point relied upon was the fact that the taxes for a certain year, not being paid, were carried over and included in the tax roll and treasurer's war- rant for the succeeding year. Dix- on, C. J., in giving the opinion of the court, says: "The collection of a tax, under the statute, is a legal proceeding to enforce the payment of a debt due the public, and, like proceedings at law upon a private claim, equity will only interfere to prevent injustice by the unfair use of the process of the law. The primary and controlling principle in such cases is, that the proceed- ings to be stayed are inequitable and unjust, and that it will be against conscience to allow them to go on. Stokes v. Knarr, 11 Wis. 389; Ableman v. Roth, 12 Wis., 91 It will not be enough to show that they are irregular or even void Courts of equity do not sit to re verse or correct errors and mis takes of law. To be entitled to their assistance the party applying must show that he is in danger of unjustly losing a substantial right, and that he is in no fault. Neither of these things appears in this case." And accordingly the action was dismissed. But see, contra, Myrick v. La Crosse, 17 Wis., 442, where it is held that if the defect in the proceedings is not simply one of form, or a technical error, but is a material defect, de- priving complainant of a substan- tial and valuable right secured to him by law, the assessment is in- valid and the injunction will be allowed to restrain proceedings thereunder. And in Siegel v. Supervisors, 26 Wis., 70, it is held that the issuing of a tax deed for lands sold under a tax adjudged to be void may be enjoined by one whose title, though acquired after the assessment, will yet be clouded by such deed. 16 Dows V. Chicago, 11 Wal., 108; Clinton, etc., Appeal, 56 Pa. 448 INJUNCTIONS. [chap. VIII. enjoined because of errors or irregularities in the proceed- ings, or because of an improper valuation or assessment, which might have been corrected by timely application to the proper officers,^ ^ nor where adequate relief may be had by appeal from the action of such officers.^ ^ § 487. Equity powerless to correct tax. In addition to the reasons already suggested for the doctrine of non-interference in equity with the collection of the revenue, may be mentioned the want of power in the court to afford complete relief by correcting mistakes and errors, or by setting the taxing machinery again in motion for the purpose of again levying and enforcing a tax which has been found to be illegal or defective. A court of equity is powerless to apportion a tax, or to make a new assessment, or to direct the making of another assess- ment by the proper officers, the levying and collection of a tax being in no sense a judicial function, but one which per- tains rather to the political functions of the government, to be exercised by the proper officers to whom the power is intrusted. And the fact that courts of equity are thus hampered in any attempt at the exercise of jurisdiction over matters of tax- ation by their inability to do complete justice, either by making or causing to be made a new assessment upon principles which they might deem just, affords additional reason for withhold- St., 315; Warden v. Supervisors, 14 erbury Savings Bank v. Lawler, 46 Wis., 618. And see Cooley on Taxa- Conn., 243. tion, 536, 540, 541. In Connecticut i" Covington v. Town of Roclting- the disposition of the courts is ham, 93 N. C, 134; Johnson r. Rob- strongly averse to interference by erts, 102 111., 655; Felsenthal c injunction with the collection of Johnson, 104 III., 21; Humphreys y. taxes, and the courts will not in- Nelson, 115 111., 45, 4 N. E., 637; terpose in the absence of circum- Camp v. Simpson, 118 111., 224, 8 N. stances of imperative necessity. E., 308. See also New York Stock Arnold r. Middletown, 39 Conn., Exchange r. Gleason, 121 111., 502, 401; Dodd v. City of Hartford, 25 13 N. E., 204. Conn., 232; Rowland v. First i« Van Nort's Appeal, 121 Pa. St., School District, 42 Conn., 30; Wat- 118, 15 Atl.. 473; Hendricks v. Gil- christ, 76 Ind., 369. CHAP. VIII.] AGAINST TAXES. 449 ing relief by injunction against the exercise of the taxing power.i^ § 488. Irregularities in assessment no ground for injunction. Having thus considered the general doctrine denying relief by injunction against the collection of taxes upon grounds of mere error or irregularity in the proceedings, it is proposed to present somewhat in detail various illustrations of the appli- cation of the doctrine, before passing to the discussion of those cases in which a departure from the rule of non-interfer- ence has been allowed. The most frequent class of cases in which the rule as stated has been applied are cases where the de- fect or irregularity complained of is in the action of the officers charged with the preliminary duty of making the assessment. And upon this point it is to be borne in mind that the fact of an assessment being illegal and improperly made does not necessarily render all taxes founded thereon void, or authorize an injunction against their collection.^o The courts have there- fore generally refused to interfere because of mere irregulari- ities or omissions in the acts of the officers charged with the duty of making the assessment.-^ And when it is not charged that the tax was assessed upon property not subject to taxa- tion, or that it was not authorized by law, its enforcement will not be enjoined because of irregularities in the action of the officers making the assessment.-- So the omission by the as- 19 State Railroad Tax Cases, 2 red by statute upon the courts of Otto, 575. See also Traders Ins. common pleas to enjoin the collec- Co. i\ Parwell, 102 111., 413. tion ol! taxes illegally assessed. 20 Adams v. Beman, 10 Kan., 37. And see as to the principles which 21 Swinney v. Beard, 71 111., 27; govern the courts in the exercise Supervisors v. Jenks, 65 111., 275; of the jurisdiction thus conferred, Albany & B. M. Co. r. Auditor- Glenn v. Waddel, 23 Ohio St., ^05; Lreneral, 37 Mich., 391; Rio Grande Burgett v. Norriss, 25 Ohio St., R. Co. V. Scanlan, 44 Tex., 649; 308; Wight v. Thomas, 26 Ohio St., George v. Dean, 47 Tex., 73; Gay 346; Hays v. Jones, 27 Ohio St., V. Hebert, 25 La. An., 196; West- 218. ern R. Co. v. Nolan, 48 N. Y., 513; 22 Swinney v. Beard, 71 111., 27; Ricketts r. Spraker, 77 Ind., 371. Lyle r. Jacques, 101 111., 644. But in Ohio jurisdiction is confer- 29 450 . INJUNCTIONS. [chap. vih. sessors to call upon taxpayers for a list of their taxable prop- erty as required by law is treated as a mere irregularity, and not as sufficient ground for enjoining the tax.^^ Nor does the fact that real property was not assessed in the name of the owner warrant the relief.^* So irregularities in the making of the assessment roll under which a tax is levied and collected, although they may show a want of proper diligence upon the part of the officers whose duty it is to make the assessment, do not warrant an injunction against the tax when it is not shown that complainants are not in equity and conscience chargeable for the full amount of the tax claimed of them.^^ So the failure of the assessor to verify the assessment roll under oath as required by law is a mere irregularity which does not render the tax void and therefore constitutes no ground for equitable relief against its enforcement.-^ Nor will the collection of a tax be enjoined upon the ground that the action of the board of review in increasing an assessment as returned by the assessor was based upon evidence which would have been inadmissible in a court of law under the rules of evidence.2'^ Nor will the relief be granted because of the fail- ure of the assessment books to show the full valuation of plaintiff's property upon which the assessed valuation is based, or upon the ground that the board of review, having examined witnesses as to plaintiff's financial standing, failed to place them under oath, or to give plaintiff' an opportunity to cross- examine them.28 And a sale of lands for delinquent taxes will not be restrained because of irregularities in the assessment roll, when no inequalities or injustice is shown in the tax.2» ii'< Supervisors v. Jenks, 65 111., 502; Wisconsin Central R. Co. v. 275. Lincoln Co., 67 Wis., 478, 30 N. W., 24 Id. 619. 25 George v. Dean, 47 Tex., 73. 27 Hixon v. Oneida County, 82 20 Avant V. Flynn, 2 S. Dak., 153, Wis., 515, 52 N. W., 445. 49 N. W., 15; Fifield v. Marin- 2s Earl & Wilson v. Raymond, ette Co., 62 Wis., 532, 22 N. W., 188 111., 15, 59 N. E., 19. 705, in f'ffect overruling Marsh r. 2" Albany & B. M. Co. r. Auditor- Supervisors of Clark Co., 42 Wis., General, 37 Mich., 391. CHAP. VIII.] AGAINST TAXES. 451 So mere irregularities in the valuation of property for tax- ation, or an excessive valuation, in the absence of fraud, will not warrant relief by injunction.-'^'^ And complainant's laches in seeking relief may constitute sufficient ground for refusing an injunction,^^ especially where the greater part of the tax has been collected before the filing of the bill.^^ -^qj. -^y^i equity enjoin such a sale because of an irregularity in the publica- tion of notice to taxpayers of the assessment, when complain- ant had actual notice, and when he shows no injury to himself by the assessment and levy of the tax.^^ So where a remedy at law exists by certiorari for the correction of errors com- mitted by assessors in the discharge of their duties, the assess- ment will net be enjoined.^^ And when complainant has neg- lected to avail himself of the means provided by law for the correction of errors in the assessment, he will not be allowed relief by injunction because of such errors.^^ "Where, how- •ever, the grievance complained of consists in the mode and form of collecting the tax, rather than in the rate or assess- ment, and where no remedy has been provided by law for such improper manner of collection, an injunction has been al- lowed because of the want of a remedy at law.^^ 30 Wagoner v. Loomis, 37 Ohio demurrer if it fails to allege that St., 571; Woodman v. Ely, 2 Fed., the treasurer is attempting to col- 839. lect the tax. Pugh v. Irish, 43 31 Stamper v. Roberts, 90 Mo., Ind.. 415. 683, 3 S. W., 214. se Miller v. Gorman, 38 Pa. St., 32 Kennedy v. Montgomery Co., 309; Bogart i?. City of Elizabeth, 10 98 Tenn., 165, 38 S. W., 1075. C. E. Green, 427. And in Ken- 33 Gay ;'. Hebert, 25 La. An., 196. tucky the right to enjoin an illegal 31 Western R. Co. v. Nolan, 48 N, tax or assessment is well estab- Y., 513. lished, the relief being granted be- 35 Rio Grande R. Co. v. Scanlan, cause of the inadequacy of the 44 Tex., 649; Wagoner v. Loomis, remedy at law. Gates v. Barrett, 37 Ohio St., 571. And in Indiana it 79 Ky., 295; Baldwin v. Shine, 84 is held that a bill seeking to enjoin Ky., 502, 2 S. W., 164; Negley v. a county treasurer from collecting Henderson B. Co., 107 Ky., 414, 54 a tax because of errors and illegal- S. W., 171. And see Baldwin v. ities in the assessment is bad on Hewitt, 88 Ky., 673, 11 S. W., 803. 452 INJUXCTIONS. [chap. VIII. § 489. Illustrations of irregularities on which injunction refused. In further illustration of the doctrine under discus- sion, it is held that where the ground of complaint is only with reference to the manner of transferring and placing a tax upon the books, as in the manner of returning the tax by a township clerk to the clerk of a county board of supervis- ors, equity will not relieve by injunction against the payment of taxes legally levied and justly due.^^ And the fact that taxing officers have been delinquent in the discharge of their duty by not seizing the personal property of the taxpayer in satisfaction of the tax, when first assessed, affords no ground for enjoining its collection when subsequently assessed."** So a mere irregularity in the tax, when the whole amount is not illegal, will not warrant an injunction.^^ And where the error complained of consists in the misnomer of a corporation upon the assessment books the relief will be refused.'^^ Nor docs the fact that property subject to taxation has not been listed war- rant interference by injunction. Nor will a sale of property for unpaid taxes be enjoined merely on account of irregulari- ties in tht; giving of notice of the time and place of sale.^^ So a court of equity will not enjoin the transfer of tax sale certificates, or the issuing of tax deeds thereon, because of irregularities in the tax proceedings, when the property sold is subject to taxation, the tax legal, and the valuation not exces- sive."*- Indeed, the doctrine of non-interference because of irregularities applies not only to general and special taxes alike, but also to the issuing of a tax deed upon a sale of land for unpaid taxes, since the deed is but one step in the 37 Iowa Railroad Land Co. v. Md., 1; Hibernian Benevolent So- County of Sac, 39 Iowa, 124; Same ciety v. Kelly, 28 Ore., 173, 42 Pac, V. Carroll County, 39 Iowa, 151. 3, 30 L. R. A., 167, 52 Am. St. Rep., 38Whittaker v. City of Janes- 769; Booth & Co. v. Raymond, 191 vine, 33 Wis., 76. 111., 351, 61 N. E., 129. 30 Brown v. Herron, 59 Ind., 61; '^ Clayton v. Lafargue, 23 Ark., 468. 137. 50 Gulf R. Co. r. Morris, 7 Kan., "'- Le Roy r. New York, 4 Johns. 210, affirmed in Gulf R. Co. v. Ch., 352. This was a bill for relief Blake, U Kan., 489. against an assessment made to de- CHAP. VIII,] AGAINST TAXES. 455 even though the chancellor be of the opinion that their valua- tion is too high, and relief by injunction will accordingly be denied.^^ fray the expense of constructing a common sewer in the city of New York, and to enjoin the com- missioners from collecting the as- sessment on the ground that it did not include all property holders benefited by the improvement. Kent, Chancellor, says: "I can not find that the court interferes in cases of this kind, where the act complained of was done fairly and impartially, according to the best judgment and discretion of the assessors; and a precedent, once set, would become very em- barrassing and extensive in its consequences. If the power under this statute had been exercised in bad faith and against conscience, I might have attempted to control it; but a mere mistake of judg- ment in a case depending so much upon sound discretion, can not properly be brought into review, under the ordinary powers of this court. There must have been a thousand occasions and opportun- ities for the exercise of such an appellate jurisdiction in the his- tory of the jurisprudence and prac- tice of the English Court of Chan- cery, if such a jurisdiction ex- isted, and yet we find no prece- dents to direct us. A mistake of judgment in the assessors, upon the matter of fact, what portion or district of the city was intended to be and actually was benefited by the common sewer, can hardly be brought within the reach of that head of equity jurisdiction which relates to breaches of trust. Here is not, strictly speaking, a viola- tion of duty. No bad faith or par- tiality in the assessors is pretend- ed. The aid of this court might as well be asked to review every assessment of a land tax or a poor rate. I apprehend it would require a special provision by statute to authorize chancery to interfere with these assessments." And see Attorney-General v. Foundling Hospital, 4 Bro., 165, and Haight v. Day, 1 Johns. Ch., 18. 53 Porter v. Rockford, R. I. & St. L. R. Co., 76 111., 561; Republic Life Ins. Co. v. Pollack, 75 111., 292; La Salle & P. H. & D. R. Co. V. Donoghue, 127 111., 27, 18 N. E., 827, 11 Am. St. Rep., 90; Kocher- sperger v. Larned, 172 111., 86, 49 N. E., 988; Kinley Mfg. Co. v. Kochersperger, 174 111., 379, 51 N. E., 648; Burton Stock Car Co. v. Traeger, 187 111., 9, 58 N. E., 418; Ayers v. Widmayer, 188 111., 121, 58 N. E., 956; Wells, Fargo & Co. v. Crawford County, 63 Ark., 576, 40 S. W., 710, 37 L. R. A., 371; Col- lins V. City of Keokuk, 118 Iowa, 30, 91 N. W., 791; St. Louis L. I. M. & S. R. Co.V'. Worthen, 52 Ark., 529, 13 S. W., 254. See also In- ternational & G. N. R. Co. V. Smith County, 54 Tex., 1. But in Okla- homa it is held that where a board of equalization raises the assess- ment of a taxpayer's property over and above its fair cash value. 456 INJUNCTIONS. [chap. VIII. §491. Remedy at law; irreparable injury; insolvency of assessor. It is also to be observed that in cases where the grounds for relief against the tax consist of alleged irregular- ities and illegalities, which appear fully of record, and a complete remedy exists at law, either by certiorari to an inferior court having jurisdiction over the levy of the tax, or by prohibition to prevent that court from making an illegal levy, equity will not interpose by injunction, but will leave the parties aggrieved to pursue the legal remedy. And if, in such ease, the bill fails to negative the remedy at law, and presents no reasons for not pursuing that remedy, it is demurrable.^* And upon like principles equity will not entertain a bill for an injunction to restrain the enforcement of a tax which is alleged to be illegal, when a plain and adequate remedy exists at law by application for an abatement of the tax.^^ Nor will equity restrain the enforcement of a tax Avhere the taxpayer has a statutory right of appeal to the court for the purpose of having the assessment revised, of which he has failed to avail himself.^6 Nor will relief be granted where there is a remedy at law by payment of the tax under protest and suing to re- cover it.^'^ Nor will equity restrain the prosecution of a pend- ing action at law instituted for the purpose of enforcing the collection of taxes, upon grounds which may be raised as a defense to that proceeding.^^ Nor will the collection of a tax be enjoined in any case when it is not shown that the injury the portion of the tax based upon s^ Pittsburg, etc. Ry. r. Board of such increased assessment will be Public Works, 172 U. S., 32, 19 Sup. enjoined. Cranmer v. Williamson, Ct. Rep., 90. 8 Okla., 683, 59 Pac, 249. "'' Arkansas Building Assu. r. 54 Floyd V. Gilbreath, 27 Ark., Madden. 175 U. S., 269, 20 Sup. Ct. 675; Murphy v. Harbison, 29 Ark., Rep.. 119; Robinson r. City of Wil- 340. Contra, Alexander v. Render- mington, 13 C. C. A., 177, 65 Fed., son, 105 Tenn., 431, 58 S. W., 648. 856. ■'■'•'■• Rockingham Savings Bank r. -^^ Scottish Union & National In- Portsmouth. 52 N. H., 17; Brown surance Co. /,'. Bowland, 196 U. S., V. Concord, 56 N. H., 375. See, 611, 25 Sup. Ct. Rep., 345. contra, Barr v. Deniston, 19 N. H., 170. CHAP. VIII.] AGAINST TAXES. 457 resulting from its enforcement would be irreparable, and this fact must distinctly appear by issuable averments.^^ And where the tax collector and his sureties are able to respond in damages, there being no averments of irreparable injury, the complaining taxpayer will be denied relief by injunc- tion against the collection of the tax, and will be left to pur- sue his legal remedy for the trespass.^'" Nor will mere general averments in the bill of the inadequacy of the remedy at law, or that irreparable injury will be sustained by the sale of complainant's property for taxes, suffice to warrant an injunc- tion, but the facts must be stated upon which the court can determine whether such averments are true.^i And it will not suffice to allege merely in general terms that the taxes in ques- tion were levied for illegal or unauthorizd purposes, but the facts must be set forth so that the court may determine whether such purposes are illegal or unauthorized.''- Nor will the alleged insolvency of the assessor of itself justify a court of equity in extending its preventive aid by injunction against the enforcement of the tax.^^ § 492. Further illustrations of the general doctrine. In cases of mere non-compliance with some particular direction of the statute, aside from which the tax is sufficiently regular, or where the irregularities relate only to the time in which the different steps w^ere taken, and do not aft'ect the principle of taxation or the groundwork of the proceedings, relief in equity will not be allowed, such irregularities being regarded as merely technical defects, which, while they can never be wholly avoided, do not go to the merits of the proceedings.^* 59 Ritter v. Patch, 12 Cal., 298; es Wells v. Dayton, 11 Nev., 161. Coulson V. Harris, 43 Miss., 728. 64 Mills v. Gleason, 11 Wis., 470; 60 Ritter v. Patch, 12 Cal., 298. Mills v. Johnson, 17 Wis., 598; See also Anthony v. Sturgis, 86 Wisconsin Central R. Co. v. Ash- Ind., 479. land County, 81 Wis., 1, 50 N. W., 61 Wells V. Dayton, 11 Nev., 167. 937. And see Canfield v. Bayfield 62 Mace V. Commissioners, 99 N. County, 74 Wis., 60, 41 N. W., 437, C, 65, 5 S. E., 740. 42 N. W., 100. 458 INJUNCTIONS. [chap. VIII. Nor will alleged irregularities in the sale of lands for taxes afford ground for the interference of equity to restrain the pur- chaser from afterward selling the same lands, the two sales being entirely independent of and distinct from each other.^^ So a tax will not be enjoined because of its alleged illegality, when it is not shown that its enforcement would lead to a multiplicity of suits, or produce irreparable injury, or throw a cloud upon the title to real estate^" And it is not sufficient ground for relief to allege that a tax sale, if allowed to pro- ceed, would involve the owner of the property in litigation with purchasers, since probabilities of that nature are too remote to warrant a court of equity in interposing by injunc- tion to restrain the collection of the public revenue.*'^ Nor will a court interfere by injunction in advance of any steps by the proper officers for the levying or collection of the tax com- plained of, and merely upon complainant's fears that it may be levied in the future.**^ § 493. Boards of review or equalization, their action not revised in equity ; mandamus ; when appeal to board unneces- sary. In many of the states of this country different tribunals or boards of equalization are provided by law, whose functions consist in hearing complaints of persons aggrieved, adjusting inequalities among different taxpayers and equalizing the burdens of taxation among the different persons subject thereto. And questions of much practical importance fre- quently occur in determining how far the action of such boards or officers may form the foundation for relief by injunction against the enforcement of taxation. The fundamental prin- ciple applicable to such cases is, that a court of equity is not a court of errors to review the acts of public officers in the «■'- St. Louis V. Goode, 21 Mo., 65; Dean r. Davis, 51 Cal., 406; 216. Oregon, etc., Ry. Co. v. Standing, o'l Savings & Loan Society v. 10 Utah, 452 37 Pac, 687. Austin, 46 Cal., 415; Houghton r. 'i" Savings & Loan Society v. Austin, 47 Cal., 646; Central Pa- Austin, 46 Cal., 415. fific R. Co. V. Corcoran, 48 Cal., "^ Bridge Company v. Commis- CHAP. VIII.] AGAINST TAXES. 459 assessment and collection of taxes, nor will it revise their decision upon matters within their discretion if they have acted honestly.^'^ "Where, therefore, a particular manner is provided by law, or a particular tribunal designated, for the settlement and decision of all errors or inequalities in behalf of persons dissatisfied with a tax, they must avail themselves of the legal remedy thus prescribed, and will not be allowed to waive such relief and seek in equity to enjoin the collec- tion of the tax. And this upon the ground that where one has a complete and ample remedy at law and slumbers upon his rights, he is estopped from invoking the aid of equity.'''" And where a state board for the equalization of taxes, acting under the law and within the scope of their authority, have fixed the value of the capital stock and franchises of a corporation for purposes of taxation, although they may have erred in judg- ment, their action can not be impeached except for fraud, and equity will not enjoin proceedings for the enforcement of the tax because of errors in judgment upon the part of such board.'^^ While, therefore, in such case, if the valuation were sioners of Wyandotte Co., 10 Kan., "o Hughes v. Kline, 30 Pa. St., 326. 227; Macklot v. Davenport, 17 69 Albuquerque Bank v. Perea, Iowa, 379; Merrill v. Gorham, 6 147 U. S., 87, 13 Sup. Ct. Rep., 194; Cal., 41; Peoria v, Kidder, 26 111., Livingston v. Hollenbeck, 4 Barb., 351; West Portland Park v. Kelly, 9; Clinton, etc.. Appeal, 56 Pa. 29 Ore., 412, 45 Pac, 901; Oregon St., 315; O'Neal v. Virginia B. & Washington M. S. Bank v. Jor- Co., 18 Md., 1; Porter v. Rockford. dan, 16 Ore., 113, 17 Pac, 624; H. R. I. & St. L. R. Co., 76 111., 561; & T. C. R. Co. v. Presidio, 53 Tex.. Ottawa Glass Co. v. McCaleb, 81 518; Duck v. Peeler, 74 Tex., 263, 111., 556; Traders Ins. Co. v. Far- 11 S. W., 1111; Northern Pac. R. well, 102 111., 413; Texas & P. R. Co. v. Patterson, 10 Mont., 90, 24 Co. V. Harrison Co., 54 Tex., 119; Pac, 704; First National Bank v. Mclntyre v. Town of White Creek, Bailey, 15 Mont., 301, 39 Pac, 83; 43 Wis., 620. And see Heywood Deloughrey r. Hinds, 23 Mont, V. Buffalo, 14 N. Y., 534; Mayor 260, 58 Pac, 709. See Chisholm V. Meserole, 26 Wend., 132, revers- v. Adams, 71 Tex., 678, 10 S. W., ing S. C, 8 Paige, 198; Union 336. Trust Co. V. Weber, 96 111., 346; 7i porter r. Rockford, R. I. & St. National Bank r. Staats, 155 Mo., L. R. Co., 76 111., 561; Ottawa Glass 55, 55 S. W., 626. Co. v. McCaleb, 81 111., 556. And 460 INJUNCTIONS. [CHAI'. VIII. SO grossly excessive as to afford evidence of fraud in the action of the officers, equity might interfere, yet if the bill con- tains only general and argumentative averments, without giv- ing the necessary data or facts from which the court can de- termine that there has been a grossly excessive valuation, the injunction will be denied."^ And if the taxpayer may have adequate relief for excessive taxation by an appeal or applica- tion to a board of review or equalization, but neglects to avail himself of such remedy, he will be denied relief by injunction.'^^ Or if a remedy exists by appeal from the action of the revis- ing board, of which the taxpayer fails to avail himself, he will not be allowed the aid of an injunctionj* And where an ag- grieved taxpayer has made application for redress to a board of review but the latter has refused to hear or consider his complaint, equitable relief against the tax is properly refused because of his failure to exhaust his legal remedy by mandamus against the board. "^ If, however, the tax is levied upon prop- erty which is by law exempt from taxation, it is held that the statutory remedy by application to a board of review is only cumulative, and that the taxpayer may, at his election, seek his remedy by injunction in the first instance.^*^ And where the function of a statutory board of equalization is merely to correct errors in the valuation of property which has been properly assessed, it is not necessary to appeal to such board where it is sought to enjoin a tax upon the ground that it is see Pacific Hotel Co. v. Lieb, 83 N. E., 988; Kinley Mfg. Co. v. 111., 602; Union Trust Co. v. Kochersperger, 174 111., 379, 51 N Weber, 96 111., 346. E., 648; New Haven Clock Co. v, 72 Pacific Hotel Co. v. Lieb, 83 Kochersperger, 175 111., 383, 51 N. 111.^ 602. E., 629; White i'. Raymond, 18S ^■■i Meyer r. Rosenblatt, 78 Mo. 111., 298, 58 N. E., 976; Coxe Bros. 495. & Co. r. Salomon, 188 111., 571, 59 74 Preston v. Johnson, 104 111., N. E., 422; Standard Oil Co. v. 625. Magee, 191 111., 84, 60 N. E., 802. 71 Beidler r. Kochersperger, 171 "'• Illinois Central R. Co. v. 111., 563, 49 N. E., 716; Kochers Hodges, 113 111., 323. perger r. Larned, lt2 111., 86, 49 CHAP. VIII.] AGAINST TAXES. 461 entirely without authority of law, as where the property haf been listed and taxed in another county or is exempt from tax- ation.''"^ § 494. Fraudulent conduct or excess of authority by board of equalization ground for injunction. Notwithstanding the well established doctrine as above discussed, denying any supervisory power in courts of equity to revise the action of boards of review or equalization charged with the duty of revising and equalizing valuations and assessments, there have been instances of equitable interference by injunction to pre- vent the enforcement of taxes based upon such arbitrary, illegal or oppressive action upon the part of these boards as to amount to a fraud against the taxpayer, or to threaten a cloud upon his title, thereby bringing the case within the established jurisdiction of courts of equity .'^^ And where a state board for the equalization of taxes undertakes to fix valuations upon taxable property through prejudice or a reckless disregard of duty, and makes a grossly arbitrary and unreasonable vaula- tion, an injunction is regarded as the appropriate remedy .'^^ TT Court V. O'Connor, 65 Tex., board, then it is plain that this 334; Davis v. Burnett, 77 Tex., 3, assessment, because in violation 13 S. W., 613. of that rule and consistent with "s Chicago, B. & Q. R. Co. v. Cole, no other reasonable theory of val- 75 111., 591; Paul v. Pacific R. Co, uation, can not be the honest judg- 4 Dill., 35; South Platte Land Co. ment of a majority of that board. V. Buffalo Co., 7 Neb., 253. And It is an arbitrary and unreason- see Wiley V. Flournoy, 30 Ark., able valuation. Because the law 609; Pacific Hotel Co. v. Lieb, 83 has devolved on the board of equal- Ill., 602. ization, and not on the courts, the '9 Chicago, B. & Q. R. Co. v. Cole, duty of making such valuations, 75 111., 591. The court, Mr. Justice we hold it is not the duty of the Scholfield delivering the opinion, courts to exercise any supervisory say, p. 592: "If, as it must be to care over its valuations so long as be sustained, the rule adopted by it acts within the scope of the the board of equalization by which powers with which it is invested, to be governed in making this and in obedience to what might class of assessments, may be re- reasonably be presumed to be an garded as the honest expression of honest judgment, however much judgment of a majority of the we may disagree with it. But 462 INJUNCTIONS. [chap. VIII. So where a state board of equalization had exceeded its juris- diction, which was limited to equalizing the aggregate valuation of county boards, and had acted as an original assessing body and had made an assessment de novo, an injunction was granted against the collection of the tax thus assessed which was in excess of the aggregate amount fixed by the county boards.^^ So where a state board of tax commissioners possessed no original jurisdiction in the assessment of property but only by way of appeal, there assumption of such jurisdiction is void, and a tax based upon an increase in an assessment made by them will be enjoined.^^ And wiiere, after the adjourn- ment of a board of equalization without making any change in the valuation of the lands in controversy, a change is sub- sequently made without authority of law, increasing the valua- tion, an injunction may be allowed against the extension of the tax upon the tax books. In such case the relief is proper for the purpose of preventing a cloud upon title, since the legality of the assessment would not necessarily appear upon the face of a tax deed, and the deed would therefore constitute a cloud upon the title to complainant's land.^^ gQ where a board of county officers, acting as a board of equalization, have made a new and largely increased assessment of complainants' lands, without authority and without notice or opportunity to be • heard, such unauthorized action is held to warrant an injunc- tion against the tax.^^ And the especial ground for relief in whenever the board undertakes to reasonableness of its valuations go beyond its jurisdiction, or to will justify equitable interference, fix valuations through prejudice but its valuations must be the re- or a reckless disregard of duty, in suit of honest judgment, and not opposition to what must neces- of mere will." sarily be the judgment of all per- »« Paul v. Pacific R. Co., 4 Dill., sons of reflection, it is the duty 35. of the courts to interfere to pro- si Eaton v. Union County Bank, tect tax payers against the conse- 141 Ind., 136, 40 N. E., 668. quences of its acts. Where its *"- Wiley r. Flournoy, 30 Ark., jurisdiction is conceded no mere 609. difference of opinion as to the «^ South Platte Land Co. v. Buf- CHAP. VIII.] AGAINST TAXES. 463 such case is found in the fact that the proceedings are regu- lar upon their face, but require extrinsic evidence to show their invalidity, and they therefore threaten a cloud upon complain- ants' title.8-^ § 495. Want of notice to taxpayer of increa^eld valuation. As regards the question of want of notice to the taxpayer before an increase of his assessment at the hands of a revisory board, the authorities are not altogether uniform. Thus, it has been broadly held that where an assessment of personal property has been reduced by a town board of revision, and afterward raised to the original amount by a county board of supervisors without notice of their intended action to the prop- erty owner, the tax is, to the extent of such increase, an unau- thorized assessment by persons having no authority, and as such it may be enjoined.^^ So where the taxpayer is entitled by law to an examination of the assessment roll and to a hear- ing as to the correctness of his assessment^ and this right is denied him, it is held that an injunction will lie to prevent the collection of the tax.^^ And when the valuation Iras been largely increased by a board of county officers, without notice to the taxpayer and without opportunity to be heard, an in- junction has been allowed as to the taxes assessed upon the excess over the original valuation.^^ And where a taxpayer has delivered a schedule of his taxable property to the asses- sor by whom it has been accepted and the assessment made, the board of review has no power to increase such valuation without notice, and the extension or collection of a tax based upon such unauthorized increase will be enjoined.^^ jsjor jg j^; necessary in such case to show that the unauthorized assess- falo Co., 7 Neb., 253; McConkey v. st County Commissioners v. Smith, 73 111., 313. Union Mining Co., 61 Md., 545. Si South Platte Land Co. v. Buf- ss Ruling v. Ehrich, 183 111., 315, falo Co., 7 Neb., 253. 55 N. E., 636; Cox r. Hawkins, 193 85 Darling v. Gunn, 50 111., 424. 111., 68, 64 N. E., 1093. 86 Woodman v. Attorney-General, 52 Mich., 28, 17 N. W., 227. 464 INJUNCTIONS. [chap. VIII. nient is in excess of the fair valuation of the property since the defect is jurisdictional.^^ And where a board of county commissioners, acting without notice to the taxpayer, has ordered an increase in plaintiff's assessment as made by the assessor and accepted by the board of equalization, a tax based upon such increase is illegal and void and its enforce- ment will be enjoined.9" And in such case the fact that the plaintiff" subsequently appears before the board and seeks to have the tax reduced is no waiver of the want of notice or of the right to equitable relief.^i Upon the other hand, it is held that while it may be the duty of a board -of review to notify a resident taxpayer before increasing the assessor's valuation of his property, the failure to give such notice is not a jurisdictional defect which renders the tax void, but at the most a mere irregularity not available for purposes of relief in a court of equity, when it does not work a substan- tial injustice to the person aggrieved. Where, therefore, such want of notice does not result in injustice, the valuation of the property as fixed by the board not being in excess of its actual valuation as required to be assessed by law, and not being dis- proportionate to other valuations in the same town, no suffic- ient ground is presented for relief by injunction.^^ And where a statute provided that an assessment should not be raised without notice or an opportunity to be heard, and further pre- scribed the time lor the meeting of the board of equalization, the statute was held to be notice not only of the meeting of the board but of all adjournments, even though sine die, and an injunction was therefore refused against a tax founded upon «» Ruling V. Ehrich, 183 111., 315, Kan., 360, 25 Pac, 854; Topeka W. 55 N. E., 63h- Mercantile National S. Co. r. Roberts, 45 Kan., 363, 25 Bank v. Hubbard, 45 C. C. A., 66, Pac, 855. 105 Fed., 809. si Topeka City Ry. Co. v. Rob- f'o Commissioners of Leaven- erts, 45 Kan., 360, 25 Pac. 854. worth Co. r. Lang, 8 Kan., 284; "^ Mclntyre r. Town of White Topeka City Ry. Co. r. Roberts, 45 Creek. 43 Wis., 020. 'CHAP. VIII.] AGAINST TAXES. 465 an increase in plaintiff's assessment which was made with no notice other than that of the statute."^ § 496. Unconstitutionality of law, conflict of authority. Upon the question of the unconstitutionality of a tax, or of the law under which it is imposed, as affording ground for equitable relief by injunction against its enforcement, the decisions of the courts have been far from harmonious. The rule has been broadly asserted that if the law under which the tax is imposed is in conflict Avith the constitution of the state, a court of equity may entertain jurisdiction by injunction to prevent the enforcement and collection of the tax.^* And where the legislature of the state, acting in violation of the constitution, has appointed certain officers and organized them into a private corporation known as drainage commissioners, and has vested them with the power of assessing taxes, such assessments being in violation of the constitution of the state, the issuing of tax deeds upon sales of land made for non-pay- ment of such assessments has been enjoined.^^ So proceedings under a tax have been enjoined because in violation of a con- stitutional provision reciuiring uniformity in the rate of tax- ation.^*' The decided weight of authority, however, supports the doctrine that the unconstitutionality of the law under which a tax is imposed does not justify relief by injunction against its enforcement. The collection of the tax, under such circumstances, is regarded as a simple tort or trespass, sus- ceptible of compensation in damages at law, and since relief by injunction against a tort rests wholly upon the inedequacy 93 Lander v. Mercantile Bank, not notice where the adjournment 186 U. S., 458, 22 Sup. Ct. Rep., was without day, and they ac- 908, reversing S. C, 55 C. C. cordingly held that the plaintiff A., 523, 118 Fed., 785, and af- was entitled to relief, firming S. C, 98 Fed., 465. o-i Bristol v. Johnson, 34 Mich , In Mercantile National Bank v. 123; Kerr v. Wooley, 3 Utah, 456, Hubbard, 45 C. C. A., 66, 105 24 Pac, 831. Fed., 809, the Court of Appeals as Gage v. Graham, 57 111., 144. had previously taken the view oo Knowlton v. Supervisors, 9 that the statute in question was Wis., 410. 30 i66 INJUNCTIONS, [chap. VIII. of the legal remedy, the fact that the law under which defend- ant is about to proceed in the collection of the tax is unconsti- tutional and void will not justify a court of equity in extending relief by injunction.'-^" In this apparent want of uniformity in the decisions of the courts, the better doctrine is believed to be that which makes the right to relief by injunction in such cases conditional upon the inadequacy of the remedy at law. And, indeed, there is express authority for holding that where the tax is unconstitutional, and no adequate remedy exists at law, and where the injury from its enforcement would prove irreparable, and would threaten the destruction of complain- ant's franchise, an injunction may properly be granted.^^ So 9- Shelton v. Piatt, 139 U. S., 591, 11 Sup. Ct. Rep., 646, re- versing S. C, 39 Fed., 712; Al- len V. Car Co., 139 U. S., 658, 11 Sup. Ct. Rep., 682; Pacific Ex- press Co. V. Seibert, 142 U. S., 339, 12 Sup. Ct. Rep., 250, affirming S. C, 44 Fed., 310; Arkansas Building Assn. v. Madden, 175 U. S., 269, 20 Sup. Ct. Rep., 119; In- diana Mfg. Co. V. Koehne, 188 U. S., 681, 23 Sup. Ct. Rep., 452; Me- chanics Bank v. Debolt, 1 Ohio St., 591; Exchange Bank v. Hines, 3 Ohio St., 1; United Lines T. Co. V. Grant, 137 N. Y., 7, 32 N. E., 1005; Blue Jacket C. C. Co. v. Scherr, 50 West Va., 533, 40 S. E., 514. See also North Carolina R. Co. V. Commissioners, 82 N. C, 259; Crawford v. Bradford, 23 Fla., 404, 2 So., 782; People v. Dis- trict Court of the Tenth Judicial District, 29 Col., 182, 68 Pac, 242. In Exchange Bank v. Hines, 3 Ohio St., 1, Bartley, C. J., delivering the opinion of the court, says: "The bill seeks relief against an alleged threatened trespass, and avers the defendant's pecuniary inability to respond in adequate damages. If the law under which the defendant is about to proceed be wholly un- constitutional and void, as is al- leged in the bill, the defendant would be liable to damages in an action at law, to the extent of the injury which might be done to the complainant by the threatened wrong. Equitable relief by in- junction against a tort rests wholly upon the inadequacy of the remedy at law. It is well settled that a court of chancery will not interfere by injunction to prevent a simple trespass, susceptible of compensation in damages in a proceeding at law, whether about to be committed in the pretended collection of a tax, or otherwise; and to authorize the interference of this extraordinary power there must be a case of apparent immi- nent danger of great and irrep- arable damage,, for which an ac- tion at law would not furnish full indemnity. Mechanics Bank r. Debolt, 1 Ohio St., 591." 9« Foote r. Linck, 5 McLean, 616. llIAr. VIII.] AGAINST TAXES. 467 the relief may be granted upon the ground of the unconstitu- tionality of the law where the pursuit of the legal remedy would subject the taxpayer to the burden of a multiplicity of suits.»» § 497. Payment or tender of legal tax a condition to relief. No principle of the law of injunctions is more firmly estab- lished than that requiring a taxpayer who seeks the aid of an injunction against the enforcement or collection of a tax, to first pay or tender the amount which is conceded to be legally and properly due. Applying the maxim that he who would have equity must first do equity, the courts have almost uniformly required, where a definite portion of the tax was conceded to be justly due and payable, that the complaining taxpayer should first pay or tender the amount admitted to be due, before extending preventive relief by injunction as to the residue. Where, therefore, complainant has not paid that por- tion of the tax which is clearly valid, to which no objection is offered, and which may readily be distinguished from the illegal portion, the injunction will be denied, since the col- lection of a legal tax will never be restrained to prevent the enforcement of an illegal one, and since a court of equity will not lend its extraordinary aid by injunction to one who himself refuses to do equity .^ And in all such cases the bill itself 99 Sanford v. Poe, 16 C. C. A., pervisors, 16 Wis., 185; Bond v. 305, 69 Fed., 546, 60 L. R. A., 641. Kenosha, 17 Wis., 284; Mills v. In this case the Court of Appeals, Johnson, 17 Wis., 598; Howes v. following the construction placed Raciile, 21 Wis., 514; Mills i\ upon the law in question by the Charleton, 29 Wis., 400; Kaehler Supreme Court of Ohio, held the v. Dobberpuhl, 56 Wis., 480, 14 N. statute to be valid. They never- W., 644; Palmer v. Napoleon, 16 theless recognize the rule as an- Mich., 176; Merrill v. Humphrey, nounced in the text. 24 Mich., 170; Pillsbury v. Hum- 1 Northern Pacific R. Co. V. Clark, phrey, 26 Mich., 245; Taylor v. 153 U. S., 252, 14 Sup. Ct. Rep., Thompson, 42 111., 10; Swinney v. 809; Peoples National Bank r. Beard, 71 111., 27; Board of Com- Marye, 191 U. S., 272, 24 Sup. Ct. missioners v. Elston, 32 Ind., 27; Rep., 68; State Railroad Tax Brown r. Herron, 59 Ind., 61; City Cases, 2 Otto, 575; Hersey r. Su- of Delphi v. Bowen, 61 Ind., 29; 468 INJUNCTIONS. [chap. VIIT, must show what portion of the tax is legal and what illegal, in order that the court may be enabled to properly discriminate between them, and to determine what portion of the entire tax should be paid and w^hat enjoined.- Nor is it a sufficient ever- ment of payment or tender to allege that complainants are willing to pay, or that they will pay into court that portion of the tax which they admit to be due, and if the court can ascertain from the bill that any part of the tax ought to be paid, it will require actual payment or tender of such portion before inter- Mulliken v. Reeves, 71 Ind., 281; Mesker v. Koch, 76 Ind., 68; Stilz V. City of Indianapolis, 81 Ind., 582; Board of Commissioners v. Dailey, 11.5 Ind., 360, 17 N. E., 619; Hyland v. C. I. & S. Co., 129 Ind., 68, 28 N. E., 308, 13 L. R. A., 515; Smith V. Rude Bros. Mfg. Co., 131 Ind., 150, 39 N. E., 47; Smith r. Bank, 131 Ind., 201, 39 N. E., 48; Thiebaud r. Tait, 138 Ind., 238, 36 N. E., 525; County Commissioners V. Union Mining Co., 61 Md., 545; Brown r. School District, 12 Ore., 345, 7 Pac, 357; Welch v. Clatsop County, 24 Ore., 452, 33 Pac, 934; Dayton r. Multnomah County, 34 Ore., 2S9, 55 Pac, 23; Alliance Trust Co. V. Multnomah County, 38 Ore., 433, 63 Pac, 498; Hunt- ington r. Palmer, 7 Sawyer, 355; Burlington & M. R. Co. v. York Co., 7 Neb., 487; Her r. Colson, 8 Neb., 331; London v. City of Wilming- ton, 78 N. C, 109; Covington v. Town of Rockingham, 93 N. C, 134; Rio Grande R. Co. v. Scan- Ian, 44 Tex., 649; Blanc v. Meyer, 59 Tex., 89; Rosenberg v. Weekes, 67 Tex., 578, 4 S. W., 899; Over- all V. Ruenzi, 67 Mo., 203; Burn- ham r. Rogers, 16? Mo., 17, 60 S. "W., 970; Parmley v. Railroad Companies, 3 Dill., 25; City of Ot- tawa v. Barney, 10 Kan., 270; City of Lawrence v. Killam, 11 Kan.. 499; Hagaman v. Commissioners of Cloud Co., 19 Kan., 394; Wilson V. Longendyke, 32 Kan., 267, 4 Pac, 361; Tallassee Manufactur ing Co. V. Spigener, 49 ^la., 262; Alabama Gold Life Ins. Co. v. Lott, 54 Ala., 499; City Council v Sayre, 65 Ala., 564; Worthen v. Badgett, 32 Ark., 496; Wells, Far- go & Co. r. Crawford County, 63 Ark., 576, 40 S. W., 710, 37 L. R. A., 371; Quint v. Hoffman, 103 Cal., 506, 37 Pac, 514; Collins v. Green, 10 Okla., 244, 62 Pac, 813; Lasater r. Green, 10 Okla., 335, 62 Pac, 816; Halff v. Green, 10 Okla., 338, 62 Pac, 816; Russell v. Green, 10 Okla., 340, 62 Pac, 817- Blue Jacket C. C. Co. r. Scherr, 50 West Va., 533, n S. E., 514. - Palmer v. Napoleon, 16 Mich., 176; Taylor v. Thompson, 42 III., 10. But in Briscoe v. Allison, 43 111., 291, it is held that whenever the court can ascertain from the bill the proportion which the illegal bears to the legal tax, the former should be enjoined and the latter collected. CHAP. Tin.] AGAIXST TAXES. 469 fering.-"^ And it has even been held that where the tender is refused by the tax collector, it must be made good by payment into court of the amount due.^ Nor is it sufficient to aver in the bill that complainants are ready and willing to pay what- ever amount may be found to be due.^ Nor is a mere offer to do equity enough.*'' And an allegation that complainant has paid all taxes which he is legally liable to pay is not sufficient within the meaning of the rule, since it is only an averment of a legal conclusion and not of a fact. The bill should, therefore, in: all cases allege the facts and particulars which will enable the court to determine whether the legal conclusion is warranted by the facts.'^ And the general doctrine under discussion has even been carried to the extent of requiring, where the valid and the void taxes are separable, and the amount of the valid tax can be readily ascertained, that complainant should act- ually pay the legal as a condition precedent to relief against the illegal tax.* The courts have not, however, in all cases required actual payment of the legal tax before granting relief as to the residue, but have generally regarded a tender of payment as sufficient, although it is not doubted that it is within the power of a court of equity to require actual pay- ment as a condition precedent to granting relief.^ And where 3 Parmley v. Railroad Companies, Kan., 499. And it is held in Indi 3 Dill., 25; Bank v. Ferris, 55 ana, that when any portion of the Kan., 120, 39 Pac, 1042. But see tax which it is sought to enjoin is City of Meridian v. Ragsdale, 67 actually due, it should be paid or Miss., 86, 6 So., 619. tendered before the commence- 4 Bundy v. Summerland, 142 ment of the suit for an injunction. Ind., 92, 41 N. E., 322. Brown v. Herron, 59 Ind., 61; City 5 State Railroad Tax Cases, 2 of Delphi v. Bowen, 61 Ind., 29. Otto, 575. But in Clement i\ Everest, 2& B Chicago, B. & Q. R. Co. v. Board Mich., 19, it is held that when the of Commissioners, 14 C. C. A., 458, bill shows the exact amount of 67 Fed., 413. the illegal and excessive tax, and " Alabama Gold Life Ins. Co. v. only seeks to enjoin such excess,. Lott, 54 Ala., 499; Insurance Co. the objection that it does not ten- V. Bouner, 24 Col., 220, 49 Pac, 366. der payment of the legal tax is of 8 Mills t\ Johnson, 17 Wis., 598; no force. City of Lawrence r. Killam, 11 o See Mills v. Charleton, 29 Wis.;,. 470 INJUNCTIONS. [chap. VIII. the plaintiff makes a tender in good faith believing it to be the amount due but it appears he is mistaken in the amount and the tender is insufficient, the bill should not be dismissed but the plaintiff should be given an opportunity to amend and make tender of the correct amount.^*^ And when the tax is justly and legally due from the property owner, he will not be allowed to enjoin the issuing of a tax deed under a sale for non-payment of such tax, without first paying or tendering to the purchaser the amount of the tax actually paid by him.'^ And it has been held that, to warrant relief against the collec- tion of a tax claimed to -be void, the plaintiff' must allege and prove that the property was listed and returned for assess- ment at its triie cash value.^- §498. The rule illustrated; not applicable to entire illegal assessment. In conformity with and as illustrating the gen- eral doctrine as above stated, it is held that a bill in equity w'hicli seeks to enjoin the enforcement of taxes, but which makes no distinction between those which are properly as- sessed and those which are presumed to have been assessed without authority of law, and wiiich seeks to enjoin the whole, can not be entertained. And that portion of the tax which is legal should first be paid before equity can properly inter- fere to restrain the illegal portion, since otherwise the collec- tion of the entire tax might be delayed by a litigation which might in reality involve but an inconsiderable portion of the amount justly due.^^ So where it is sought to enjoin the 400; Dean v. Borchsenius, 30 Wis., case, must keep his tender good by 237. bringing the money into court, 1" Chicago, B. & Q. R. Co. v. and that an averment of his will- Board of Commissioners, 14 C. C. ingness to pay is insufficient. Mor- A., 458, 67 Fed., 413. rison v. Jacoby, 114 Ind., 84, 14 N. 11 Whitehead t: Farmers' Loan E., 546, 15 N. E., 806. And see & Trust Co., 39 C. C. A., 34, 98 Hewett r. Fenstamaker. 128 Ind., Fed., 10; Moore v. Wayman, 107 315, 27 N. E., 621. 111., 192; Harrison v. Haas, 25 Ind., i- Alva State Bank v. Renfrew, 281 ; Rowe v. Peabody, 102 Ind., 10 Okla., 26, 62 Pac, 285. 198. And it is held in Indiana, i;' Tallassee Manufacturing Co. that the property owner, in such t\ Spigener, 49 Ala., 262. CHAP. VIII.] AGAINST TAXES. 471 collection of an entire tax upon the ground, among others, that the law under which it is levied fails to make provision for proper deductions and it appears upon the face of the plead- ings what deductions should have been allowed, the failure to pay the amount equitably due is good ground for refusing an injunction; but in such case the court may direct that the dismissal of the bill be without prejudice in order that the plaintiff may, if he so elect, pay what is equitably due and then institute further proceedings.^^ So where a county clerk in extending uncollected taxes of previous years with those of the current year, has computed interest on such back taxes at a higher rate than that allowed by law, the excess will not be enjoined when the bill does not aver payment or a readiness to pay the amount legally due.^° And where it is sought to enjoin taxes levied for a given year upon the ground that the county officers have exceeded their authority by levying a greater percentage upon the valuation of property than they Avere au- thorized by law to do, such excess being levied to pay a judg- ment rendered against the county for the expenses of previous years, it is error to grant the injunction against the whole excess as an entirety, when the bill fails to show the amount of the tax levied in such previous years for the payment of the expenses of those years.^*' So an injunction will not lie to prevent the assignment of certificates of tax sales because of irregularities in assessing the lots in gross, levying the taxes in excess of the legal rates, and the want of sufficient notice of the time of sale, unless complainant shall first pay or tender the taxes which are justly due.^'^ And the execution of a certificate of conveyance of lands for tax sales will not be en- joined unless complainant will pay all taxes which are legally due and chargeable upon the lands. ^^'^ So a purchaser of lands 14 Peoples National Bank v. i" Hagaman v. Commissioners of Marye, 191 U. S., 272, 24 Sup. Ct. Cloud Co., 19 Kan., 394. Rep.. 68. 18 Worthen v. Badgett, 32 Ark., 15 Swinney v. Beard, 71 111., 27. 496. ic Commissioners of Osborne Co. V. Blake, 19 Kan., 299. 472 INJUNCTIONS. [chap. VIII. at a foreclosure sale, since he takes the lands subject to unpaid taxes and assessments, can not, if such taxes are a legal incum- brance upon the lands, enjoin the issuing of a tax deed under a sale for such unpaid taxes without first tendering the full amount of taxes which are justly due.^'' And where it is sought to enjoin the placing upon the tax duplicate of an entire tax levy, a part of which is valid, the relief will be denied, since the requirement that the plaintiff do equity applies with the same force in such a case as in an action to enjoin the collec- tion of a tax already upon the duplicate.-^ It is held, however, that the general rule requiring payment or tender of the amount actually due as a condition to equitable relief against the illegal portion of the tax, has no application to a case where the entire tax fails by reason of an illegal assessjnent, And in such case an injunction is proper without payment or tender of any portion of the tax, since it is impossible for the court to determine what portion is actually due, there being no valid or legal tax assessed.^^ And the rule under discussion has no application where the tax or assessment is made upon a basis so false and unwarranted as to afford no data from which the amount of the tax properly chargeable may be determined.-- And where the plaintiff' is seeking to restrain not the collectioE L of the tax itself but merely the extension of Jhe tax upon an unauthorized increase in the plaintiff's assessment, the rule does not apply where the amount of the tax which is equitably due is not known at the time the suit was begun.-^ 19 Her V. Colson, 8 Neb., 331. 335, 26 N. E., 672; Yocum v. Bank, 20 Shepardson r. Gillette, 133 144 Ind., 272, 43 N. E., 231; Bld- Ind., 125, 31 N. E., 788. well r. Huff, 103 Fed., 362; Zehn- 21 Marsh v. Supervisors of Clark der v. Barber Asphalt Co., 106 Fed., Co., 42 Wis., 502; Norwood v. Bak- 103. And see Morris i\ Merrell, 44 er, 172 U. S., 269, 293, 19 Sup. Ct. Neb., 423, 62 N. W., 865. Rep., 187; Peoples National Bank 22 Howell t\ City of Tacoma, ". V. Marye, 191 U. S., 272, 24 Sup. Ct. Wash., 711, 29 Pac, 447, 28 AIu. Rep., 68; Fargo v. Hart, 193 U. St. Rep., 83. S., 490, 24 Sup. Ct. Rep., 498; Hy- 2.-t Cox v. Hawkins, 199 HI., 6S,. land V. Brazil B. C. Co., 128 Ind., 64 N. E., 1093. CHAP. Till.] AGAINST TAXES. 473^ § 499. The rule as affected by legislation. As regards the effect of legislation upon the question above discussed, where an act of legislature prohibits the granting of any injunction against the collection of certain taxes, unless plaintiff shall first pay all taxes remaining unpaid, whether regularly assessed or not, and further provides that if it shall appear upon the hearing that the amount paid by plaintiff was not the full amount justly chargeable upon his land, the action shall be dismissed, it is held that the statute applies only to pro- ceedings to enjoin the collection of taxes irregularly assessed, and not to cases where relief is sought against taxes which are inherently unjust and inequitable. Such legislation, there- fore, is not in derogation of the bill of rights in a state con- stitution, declaring that every person is entitled to a certain remedy in the laws for all injuries or wrongs that he may receive, and it will be upheld as constitutional. And under such a statute an action to enjoin the collection of the tax should be dismissed if it appears that that plaintiff has omitted to pay the taxes assessed which are not shown to be void upon the merits or unjust in principle, even though there are techni- cal objections to the taxes assessed upon some of the lots or parcels.-^ And while, in such case, the fact that several lots or parcels were valued together, although owned by different persons and not occupied as one parcel, would if shown as to all the lots entitle plaintiff to an injunction, yet if shown only as to a part of the lots, the relief will be denied.-^ § 500. Fraud as a ground for relief ; when purged by appeal. Fraud has been held a sufficient ground to warrant a court of equity in a departure from the general rule of non-interference with the collection of taxes. And an allegation of fraud in the levying of a tax for an unauthorized purpose is regarded as sufficient to give a court of equity jurisdiction.-"^ Thus, 24 Whittaker r. City of Janes- 2e Leitch v. Wentworth, 71 111.,, ville. 33 Wis., 76. 146. 25 Id. 474 INJUNCTIONS. [chap. VIII. where an assessor, having accepted without objection a list of taxable property, afterward and without notice arbitrarily in- creases the list, the taxpayer having no knowledge of the matter until after the time for redress at law has expired by limitation, the collection of the tax may be enjoined.^'^ So the relief has been allowed against the enforcement of taxes im- posed for the payment of judgments obtained through fraud and collusion.-^ And in such case, the persons to whom the illegal tax, if collected, would be paid are not necessary par- ties to the suit for the injunction.^^ But equity will not in- terpose to restrain the collection of a tax for the payment of judgments rendered against a municipal corporation, on the ground that the bonds on which the judgments were founded were without consideration, and were obtained by fraud, where such defense might have been pleaded to the action at law.^'^ And where fraud is relied upon as a ground for relief against excessive taxation, the proof of fraud must be clear and ir- resistible, and the resulting injury must be a serious one.^' Nor will the relief be allowed because the judgments are for an amount greater than that actually due, the mistake hav- ing occurred through complainant's carelessness, and no aj:)- plication having been made to correct the judgment in the court in which it was obtained.-''- But a fraudulent combina- tion which has been entered into between bidders at a tax sale and the collector whose duty it is to sell, the purpose of such 27 Cleghorn v. Postlewaite, 43 28 Newcomb r. Horton, 18 Wis., 111., 428; First National Bank of 566; Leitch c. Wentworth, 71 111., Shawneetown v. Cook, 77 111., 622. 146. But where the assessor has never -'•> Leitch v. Wentworth, 71 111., accepted the valuation placed upon 146. the property by the plaintiff and 3o Muscatine v. Mississippi & M. proceeds to place a higher valua- R. Co., 1 Dill., 536. tion upon it without notice, the si Union Trust Co. r. Weber, 96 relief will be denied since there is 111., 346. no increase in the valuation adopt- "- Muscatine v. Mississippi & M. ed by the assessor. Tolman v. R. Co., 1 Dill., 536. Salomon, 191 111., 202, 60 N. E., 809. CHAP. VIII.] AGAINST TAXES. 475 combination being to prevent competition at the sale and to allow the property to be struck off to a particular purchaser, by reason of which all bidding at the sale is wholly prevented, is held to constitute sufficient ground for enjoining the issu- ing of tax deeds upon the certificates of such sales,^^ or the issuing of the certificates themselves.^* And where, pending a litigation between a taxpayer and a county concerning taxes which have been levied upon plaintiff's property, a compromise is effected by which plaintiff is to pay a given sum in settle- ment, upon compliance with such agreement plaintiff may en- join the collector from enforcing the taxes as originally as- sessed.^^ But where fraud upon the part of an assessor is re- lied upon as the basis for equitable relief against the collec- tion of a tax, an appeal from the action of the assessor to the board of review is held to purge the original assessment of the taint of fraud where there is no showing that the reviewing board itself has been guilty of any improper or fraudulent con- duct.3® § 500 a. Arbitrary discrimination in assessment. The aid of equity is frequently invoked for relief against taxes where the assessor or assessing board has made an arbitrary or wilful discrimination against a taxpayer, whereby his property is assessed at a higher rate than other property subject to taxa- tion; and in such cases injunctions are freely granted against the collection of a tax based upon such arbitrary or capricious valuation. Thus, where the officers intrusted by law with the duty of making an assessment have fraudulently assessed prop- erty above its real value, for the purpose of relieving resident taxpayers from their due proportion of the taxes, and have not exercised their judgment upon the valuation, but have arbitrarily made an excessive assessment, it is proper to enjoin 33 Gage V. Graham, 57 111., 144. 36 Burton Stock Car Co. v. Trae- 34G10S V. Swigart, 156 111., 229, ger, 187 111., 9, 58 N. E., 418. Sea 41 N. E., 42. Spring Valley Coal Co. v. People, 35 St. Louis, I. M. & S. R. Co. v. 157 111., 543, 41 N. E., 874. Anthony, 73 Mo., 431. 476 INJUNCTIONS. [chap. VIII. the sale of lands for the excess in such assessnient.^'^ So relief will be granted where plaintiff's property has been assessed for taxation at its full valuation, as required by law, while all other property is assessed at only a fractional part of its full valuation.2^ And the relief is granted in such cases regardless of the question of motive or fraudulent intent upon the part of the assessing officer.^^ So also where an assessor has fraudulent- ly and intentionally adopted a rule or system of valuation which is designed to operate unequally among different classes of taxpayers, thereby violating the fundamental requirements of uniformity of taxation, equitable relief is properly granted. Thus, where property consisting of mortgages upon real es- tate has been rated at its full valuation, while the mortgaged property itself is assessed at but one-fourth of such valuation, an injunction will be allowed against the enforcement of the tax.^*^ So where an assessor has arbitrarily and fraudulently assessed plaintiff's property at a rate which is grossly exces- sive and which is entirely disproportionate to the rate at which like property owned by other persons has been valued, a case is presented for relief by injunction against the collection of the tax.'^i It is to be observed, however, that in all such cases the relief is not extended to the entire tax but only to that 37 Merrill r. Humphrey, 24 Mich., sessed at a less rate. Albuquerque 170; California & 0. Land Co. v. Bank v. Perea, 147 U. S., 87, 13 Gowen, 48 Fed., 771. Sup. Ct. Rep., 194. "S Mercantile Natl. Bank r. Mayor, so Mercantile Natl. Bank r. May- 172 N. Y., 35, 64 N. E., 756; Chi- or, 172 N. Y., 35, 64 N. E., 756; cago, B. & Q. R. Co. v. Board of Chicago, B. & Q. R. Co. v. Board of Commissioners, 54 Kan., 781, 39 Commisioners, 54 Kan., 781, 39 Pac, 1039; Taylor v. L. & N. Co., Pac, 1039. 31 C. C. A., 537, 88 Fed., 350; Rail- 4o Andrews v. King County, 1 road & Telephone Co. r. Board of Wash., 46, 23 Pac, 409, 22 Am. St. Equalizers, 85 Fed., 302. But Rep., 136. where plaintiff's own property is ^i Oregon & Cal. R. Co. v. Jack- assessed at but a fractional part son County, 38 Ore., 589, 64 Pac, of the full valuation required by 307, 65 Pac, 369; Pacific P. T. Co. law, the relief will be denied al- v. Dalton, 119 Cal., 604, 51 Pac.,. though all other property is as- 1072. €HAP. VIII.] AGAINST TAXES. 477 portion of the tax which is based upon the assessment in excess of the rate at which other property is valued for taxation.^- So also relief should be granted only upon the payment of the proportion of the tax which is justly due."*^ And where an aggrieved taxpayer has appealed to a board of equaliza- tion from an arbitrary and capricious assessment of the as- sessor, and the board, although granting partial relief, refuses to make the reduction claimed by the plaintiff, relief will be denied, even though the valuation made by the board may appear unduly high, where there is no charge that the board acted fraudulently or arbitrarily in arriving at their valua- tion.4^ § 501. Omission of officer to take oath or to give bond. Upon the question of the effect of non-compliance by the officer charged with the duty of fixing the amount of or col- lecting a tax, with the formalities necessary to fully qualify him for his office, the authorities are not wholly uniform. Thus it has been held that where a tax is sought to be imposed for a work of public improvement, and the person designated by law to estimate the work and to audit the amount of each owner's tax is not sworn as required by law, the omission to take the oath will be treated as fatal to the collection of the tax, rendering it entirely void, and a demurrer to a bill seeking to enjoin such tax will, therefore, be overruled.^^ Upon the other hand, it would seem that the omission of an ■officer charged by law with the collection of a tax to properly qualify by giving the necessary bond required by law affords 4- Chicago, B. & Q. R. Co. v. son County, 38 Ore., 589, 64 Pac, Board of Commissioners, 54 Kan., 307, 65 Pac, 369. 781, 3 9 Pac, 1039; Mercantile Natl. « Merrill v. Humphrey, 24 Mich., Bank r. M'ayol% T72 N. Y., 35, 64 170. N. E., 756; Taylor v. L. & N. R 4* Southern Oregon Co. v. Coos Co., 31 C. C. A., 537, 88 Fed., 350; County, 39 Ore., 185, 64 Pac, 646. Andrews r. King County, 1 Wash., ^5 Webb v. Cutsinger, 48 Ind., 46, 23 Pac, 409, 22 Am. St. Rep., 246. 136; Oregon & Cal. R. Co. r. Jack- 47S INJUNCTIONS. [CIIAP. VIII. no ground for enjoining the collection of the tax.^^ And upon principle it is difficult to perceive any satisfatcory reason why the levj'ing or collection of a tax by an officer de facto, whose acts are otherwise unquestioned, should be enjoined by reason of his omission to fully comply with the- legal conditions re- quisite to the exercise of his official functions."*''' § 502. Want of power, ground for injunction ; former judg- ment sustaining tax. A distinction is drawn between cases of an irregular exercise of the taxing power or of an informal assessment and levy, and cases where there is an entire absence of any exercise of the power and hence no valid assessment or levy. And in the latter class of cases, there being no exercise of the taxing power, what appears upon the tax records as a tax is illegal and void and its enforcement may be enjoined.^^ So if there is a total want of authority to levy the tax, relief by injunction may properly be allowed.^^ And in an action to enjoin the enforcement of taxes charged to be illegally assessed, it is a sufficient defense to show that the validity of the taxes in question was fully determined in a former action between the same parties to restrain the col- lection of such taxes.^*^ § 503. The Illinois doctrine. It is the established doctrine in Illinois, that a tax will not be enjoined unless it is void, 40 Hall V. Houston & T. C. R. Co., -t** Brandirff v. Harrison Co., 50 39 Tex., 286. Iowa, 164. See also Decker v. 47 See Cooley on Taxation, 187, McGowan, 59 Ga., 805; Savannah, 190, 191, where the subject of the Y. & W. R'y v. Morton, 71 Ga., validty of the action of officers de 24; Conner's Appeal, 103 Pa. St., tacto is fully and exhaustively 356. discussed, and the conclusion is ^i' Town of Lebanon v. Ohio & M. reached by the learned author that R. Co., 77 111., 539; Kimball v. the general policy of the law, as Merchants S. L. & T. Co., 89 111., indicated by the clear and very 611; Allwood v. Cowen, 111 III., strong preponderance of author- 481 ; .Tones v. Davis, 35 Ohio St., ity, is, that the acts of officers de 474. See also Simpkins v. Ward, 1acto should be sustained in tax 45 Mich., 559, 8 N. W., 507. cases under like circumstances and •'>'> Breeze v. Haley, 11 Col., 351, for the same imperative reasons 18 Pac, 551. ■which sustain them in other cases. CHAP. Yin.] AGAINST TAXES. 479 or levied without authority of law, or unless the property is exempt from taxation, or unless there has been a fraudulent assessment at too high a rate.-'''i And when the property taxed is liable to the tax imposed upon it and the law has authorized the tax to be imposed, and when it is levied by the persons designated by law for that purpose, equity will not interfere by injunction to prevent the enforcement of the tax. Stated in other words, the Illinois doctrine is, that equity will not en- join a tax unless the property is exempt from taxation, or the tax is not authorized by law, or unless the persons imposing the tax have no power conferred upon them by law to make the levy.^2 Where, however, without authority of law, a tax levy is made in excess of the proper and uniform legal rate of taxation, the collection of such excess may properly be en- joined.^^ So where the jurisdiction of the assessing ofificer had previously ceased, the tax will be restrained.^^ So where a tax levied upon the property of one person is charged against another, the latter may restrain its enforcement.^^ And an injunction will lie to restrain, not only the collection of a tax levied by town officers for a purpose for which they could Qot legally make a levy, but the use of the money already col- lected.^^ So also equity will restrain the collection of a tax in excess of the two per cent, limitation provided by law.^^ So also where property is taxable in one town, relief will be 51 Munson v. Miller, 66 111., 380; Porter v. Rockford, R. I. & St. L. Porter v. Rockford, R. I. & St. L. R. Co., 76 111., 561; Chicago & N. R. Co., 76 111., 561; Ottawa Glass W. R. Co. v. Miller, 72 111., 144. Co. V. McCaleb, 81 111., 556; Moore r,4 School Directors v. School Di- V. Wayman, 107 111., 192; Wabash, rectors, 135 111., 464, 28 N. E., 49. St. L. & P. R. Co. V. Johnson, 108 •" irvin v. Railroad Co., 94 111., 111., 11; New Haven Clock Co. v. 105; Searing v. Heavysides, 106 Kochersperger, 175 111., 383, 51 N. 111., 85; Condit v. Widmayer, 196 E., 629; Earl & Wilson v. Ray- 111., 623, 63 N. E., 1078. mond, 188 111., 15, 59 N. E., 19; se Town of Drummer v. Cox, 165 Siegfried v. Raymond, 190 111., 424, 111., 648, 46 N. E., 716. 60 N. E., 868. 5- Dollahon v. Whittaker, 187 52 Munson v. Miller, 66 111., 380. 111., 84, 58 N. E., 301. 53 Ramsey v. Hoeger, 76 111., 432; •480 INJUNCTIONS. [chap. VIII. granted against a tax levied by the authorities of another town.^s go when the tax levy is void because not made within the time prescribed by law, sufficient cause is presented for an injunction.^^ And in conformity with this general doc- trine recognizing the right to enjoin taxes levied without au- thority of law, or levied upon property not subject to taxation, it is held that where back taxes for previous years have, with- out authority of law, been extended upon the assessment of the current year, relief by injunction may properly be al- lowed.^*^ While it will thus be seen that the courts of Illinois have displayed a somewhat marked liberality in the granting of injunctions against the collection of taxes, the prevailing tendency at the present time would seem to be to restrict rather than to enlarge the jurisdiction and to adopt the ade- quacy of the legal remedy as the test as to the right to equitable relief."^ § 504. The Wisconsin doctrine. In Wisconsin it has be- come the well established doctrine that the enforcement of a tax may be enjoined which has been assessed upon an im- proper or illegal basis, or when the statutory rule of valuation has been utterly disregarded or violated.*^- A valid assess- ment being regarded as the foundation of all proceedings requisite to a uniform rule of taxation, it is held that where the mode of assessment prescribed by law has been so violated or disregarded as to render the tax void, an appropriate case is presented for equitable relief by injunction. Drawing a distinction between mere errors or mistakes of taxing offi- cers, and a total disregard of the requirements of the law as to the assessment, it is held that, while in the former .■58 Vogt V. Ayer, 104 111. 583. And c^ Hersey v. Supervisors of Bar- see, post, § 523 b. ron Co., 37 Wis., 75; Salscheider v. no First National Bank of Shaw- City of Fort Howard, 45 Wis., 519: neetown r. Cook, 77 111., 622. Sohettler r. City of Fort Howard, (io Town of Leoanon v. Ohio & 43 Wis., 48; Goff r. Supervisors of M. R. Co., 77 111., 539. Outagamie Co., 43 Wis., 55. 01 See Williams r. Dutton, 184 111., r,08, r,6 N. E., 868. CHAP. VIII.] AGAINST TAXES. 481 class of cases sufficient ground may not exist for equitable interference, in the latter a court of equity may properly interpose its preventive relief against the enforcement of the tax. Where, therefore, the assessor is required by law to make a valuation from actual view of the premises, using his judg- ment with reference to each tract and its value, but he makes his valuation upon certain fixed and arbitrary rules in dis- regard of the statutory requirements, it is proper to enjoin the enforcement of the tax. The valuation being regarded as essential to lay the foundation for a lawful tax, where this is made in plain disregard and violation of the law, an injunc- tion is deemed the appropriate remedy.*^^ So where the asses- sor is required by law to assess property at the full value which it w^ould ordinarily bring at private sale, but in disre- gard of the statute he makes the valuation upon the basis of one-third the value of the property, sufficient ground is pre- sented for an injunction.*'^ And where the assessor, disre- garding the statute which requires him to assess lands at the full value which they would bring at private sale, assesses them at what he regards as their value at a forced sale, it is held to be such a disregard of the statute as to render the assessment void and to authorize an injunction.*"^^ The failure, however, of the assessor to verify the assessment roll as required by law does not render void a tax based thereon, and relief in such case will accordingly be denied.*'*' §505. Personal property tax not enjoined; mill property; payment; exceptions to rule. As regards the question of equitable relief against a tax which is levied upon or sought to be collected out of personal property, the better con- es Hersey v. Supervisors of Bar- Wis., 532, 22 N. W., 705, in effect ron Co., 37 Wis., 75. overruling Marsh r. Supervisors of •■•^ Schettler r. City of Fort How- Clark Co., 42 Wis., 502; Wiscon- ard, 43 Wis., 48. sin Central R. Co. r. Lincoln Co., 65Goff r. Supervisors of Outa- 67 Wis., 478, 30 N. W., 619; fol- garaie Co., 43 Wis., 55. lowed by Avant r. Flynn, 2 S. Dak., ce Fifield r. Marinette Co., 62 153, 49 N. W., 15. 31 482 INJUNCTIONS. [chap. VIII. sidered doctrine and that supported by the clear woio-ht of authority is, that equity will not interfere by injunction to restrain a levy upon or sale of personal property in satisfac- tion of a tax which is alleged to be illegal. Even in those states which have inclined to depart from the general doctrine denying relief in equity against an illegal tax, the courts, while contending for the jurisdiction in cases affecting the title to real estate, nevertheless refuse to interfere where only personal property is involved and leave the parties aggrieved to their remedy at law. The act of the officer making such levy being regarded as a mere trespass for which ample rem- edy may be had at law, a court of equity will decline to lend its aid b}' injunction for the prevention of such trespass.*^''' And where the bill seeks to restrain a taxing officer from selling personal property for taxes, and complainants show the exact damage in dollars and cents which they would sus- tain by reason of the sale, an injunction will not be allowed, GTDeane v. Todd, 22 Mo., 90; Lockwood V. St. Louis, 24 Mo., 20; Van Cott v. Supervisors, 18 Wis., 247; Chicago & N. W. R. Co. v. Borough of Fort Howard, 21 Wis., 45; Quinney v. Town of Stock- bridge, 33 Wis., 505; Mayor v. Baldwin, 57 Ala., 61; Selma Build- ing Association v. Morgan, 57 Ala., 33; Baldwin v. Tucker, 16 Fla., 258; Odlin v. Woodruff, 31 Fla., 160, 12 So., 227, 22 L. R. A., 699; Witherspoon v. Nickels, 27 Ark., 332; Clarke v. Ganz, 21 Minn., 387; Bradish v. Lucken, 38 Minn., 186, 36 N. W., 45-4; Laird, Norton Co. V. County of Pine, 72 Minn., 409, 75 N. W., 723; Henry v. Gregory, 29 Mich., 68; Youngblood v. Sex- ton, 32 Mich., 406; Hagenbuch v. Howard, 34 Mich., 1; Mears v. Howarth, 34 Mich., 19; Schaffner v. YouiiK. 10 N. Dak., 215, 86 N. W, 733; Minneapolis, etc. Ry. Co. c. Dickey County, 11 N. Dak., 107, 90 N. W., 260; Oregon etc. Ry. Co. V. Standing, 10 Utah, 452, 37 Pac. 687. And see Thomas v. Gain, 35 Mich., 155. An exception to the general inile of non-interference has been recognized where the property is of peculiar value to the owner or where a valuable franchise would be interfered with. City of Detroit v. Wayne Circuit Judge, 127 Mich., 604, N. W., . Contra, Spencer v. Wheaton, 14 Iowa, 38; Valle v. Ziegler, 84 Mo., 214; Searing v. Heavysides, 106 111., 85; Phelan r. Smith, 22 Wash., 397, 61 Pac, 31; North Western Lumber Co. v. Chehalis County, 24 Wash., 626, 64 Pac, 787; Rothwell v. County of Knox, 62 Neb., 50, 86 N. W., 903; Alexander r. Ilonderson, 105 Tenn , CHAP. Vlll.] ■ AGAINST TAXES. 483 the proper remedy being at law.^^ So in cases of municipal taxes or assessments upon personal property, equity will not interfere by injunction merely because of the illegality of the tax, since the person aggrieved has an adequate remedy at law by an action for the trespass which would result from enforcing its collection.*^^ And upon similar principles the owner of a mill which stands upon land belonging to another person is not entitled to an injunction to prevent a sale of the mill for taxes, upon the ground that it was wrongfully assessed with the land, since if it w^ere thus improperly assessed with the land and not as the personal property of the owner, a court of law could afford ample relief for any injury which might result from a sale for such taxes.'''*^ Nor will equity enjoin the enforcement of a tax levied upon personal prop- erty because .it is improperly or inaccurately described upon the tax rolls, when complainant is liable for the tax, and the property charged therewith has been in fact assessed, and the assessment is neither excessive nor the valuation too large.'^^ The rule, however, is subject to some exceptions; and where the property which is about to be seized for non-payment of an alleged illegal tax consists of the rolling stock of a rail- 431, 58 S. W., 648. And in Peck v. tice in the court of chancery. It School District No. 4, 21 Wis., 516, may well be doubted whether this followed by State v. Circuit Court, doctrine is consistent with the 98 Wis., 143, 73 N. W., 788 and weight of the authorities cited in Hoff V. Olson, 101 Wis., 118, 76 N. support of the principles laid down W., 1121, 70 Am. St. Rep., 903, th? in the preceding sections, since doctrine is laid down that the ob- the courts have almost uniformly jection that the remedy of the treated the objection that the rem- party aggrieved should be sought edy was at law as jurisdictional, at law rather than in equity must regardless of whether the question be taken by demurrer or answer, was so presented by the pleadings, and if not so taken the relief by es Conley v. Chedic, 6 Nev., 222. injunction will be granted. The eo Mayor v. Baldwin, 57 Ala., 61; court, it is held, has power to hear Baldwin v. Tucker, 16 Fla., 258. and determine the action, and the And see, post, § 543. objection that complainant has a ^o Witherspoon r. Nickels, 27 remedy at law is not jurisdictional, Ark., 332. and is no more than a rule of prac- "i Harrison v. Vines, 46 Tex., 15. 484 INJUNCTIONS. [chap. VIII. road or street railway company which is indispensable to the proper performance of its functions as a quasi-public cor- poration and is consequently exempt from sale for taxes, an injunction is properly granted to prevent the threatened seizure of such property, the relief being based upon the injury to the public and the consequent inadequacy of the legal remedy.'^- And it has been held proper to enjoin a sale of personal property upon which distraint has been made for the payment of taxes which have been fully paid and dis- charged previous to the levy.'^" And it is also held that where the plaintiff is in possession of personal property as assignee under an assignment for the benefit of creditors and has therefore presumably inventoried the property and is under obligation to account therefor, and, in consequence, would be greatly embarrassed in the execution of his trust by a seizure and sale of the property, such circumstances constitute suffi- cient ground for an injunction against the threatened sale of such personalty under illegal proceedings for the collec- tion of a tax thereon."* So it is proper to grant a preliminary injunction against the sale of chattels for the payment of an alleged illegal tax until the determination of the question of its legality, where the value of the property seized is grossly in excess of the amount of the disputed tax.''"^ § 506. Tax upon capital stock and franchises of corpora- tions. Relief by injunction has sometimes been allowed against taxation imposed upon the capital stock of corporations. And where it is sought to enforce a tax against the capital stock of a foreign corporation which is not authorized by T2 Chicago & N. W. R. Co. v. Ry. Co. r. City of Asheville, 69 Forest County, 95 Wis., 80, 70 N. Fed., 359. W., 77, overruling Chicago & N. W. ^■' Lewis r. Spencer, 7 West Va., R. Co. V. Borough of Ft. Howard, 689. 21 Wis., 45; City of Detroit v. ■* Dawson r. Croisan, 18 Ore., Wayne Circuit .Judge. 127 Mich., 431, 23 Pac, 257. 604, N. W., ; Southern "i^' Ex parte Chamberlain, 55 Fed., 704. fllAP. VIII.] AGAINST TAXES. 485 law, the aid of an injunction may be properly extended in behalf of the corporation."" So where under a mistake as to the place where the personal property of a railway com- pany is to be taxed its capital stock is taxed in a wrong lo- cality, an injunction is regarded as proper.'^^ And where the entire capital stock of a corporation has been invested in tan- gible property which has been properly returned for taxa- tion, a tax levied upon such capital stock is illegal and void and its attempted enforcement will be enjoined."^ The relief, however, is granted only to the extent that the tangible assets returned for taxation represent the investment of the capital stock.'^^ And where a statute provides that the stock of a building and loan association shall be assessed against the shareholders and the real estate against the association, the collection of a tax upon the shares charged against the asso- ciation will be enjoined.^^ So, also, where it is provided by statute that so long as a corporation pays taxes upon all of its property, the individual shareholders shall not be required to list their shares for taxation, equity may properly inter- fere to prevent the collection of a tax levied upon such shares where the corporation has paid the taxes upon its corporate property .^^ A court of equity will not, however, lend its aid by injunction to restrain the collection of a tax upon the capital stock and franchise of a corporation which has been equalized and fixed by a state board of equalization, acting within the scope of their authority and under a valid law, when no fraud is shown and when the property taxed is legally liable to taxation, and the rule of uniformity has not been TO Riley v. Western Union Tele- * Mayor r. First National Bank of Macon, 59 Ga.. 648. CHAP. VIII. J AGAINST TAXES. 489 ment of a sum which shall be a fair e(iuivalent for the tax on the banks of the state.^^ And where an illegal tax is levied against the shareholders of a national bank but is made pay- able by the bank, the latter, in order to prevent a multiplicity of suits may enjoin the extension of the tax; and in such case, it is not necessary that the bank should allege that it has dividends on hand belonging to the shareholders out of which it would be required to pay the tax if extended and enforced.^*'' § 508. Internal revenue taxes. The circuit courts of the United States will interfere to restrain a collector of internal revenue from the collection of a tax improperly assessed.^" And it has been held that the courts of a state may also interfere to restrain revenue officers of the United States from collect- ing a revenue tax unauthorized by law.''*^ So if after payment of the full legal tax upon a manufactured article, the collector threatens to levy upon the property for an additional sum in excess of the legal tax justly due, he may be enjoined from such illegal action."'^ But a bill to enjoin the enforce- ment of a tax under the revenue laws, in the nature of a bill of peace, will not lie in favor of a number of persons joined as complainants whose only interest in common is in resisting the tax, they having no common interest in the subject-matter on which it is levied.^ And where many persons are affected by the tax and the remedy by suit in equity will involve vexatious litigation, the court will not grant the injunction."*^ 95 Prazer v. Slebern, 16 Ohio St., because of improper joinder of par- 614. ties. But see Powell v. Redfield, 4 »6 Knopf r. First National Bank, Blatch., 45. 173 111., 331, 50 N. E., 660. »■< Georgia r. Atkins, 35 Ga., 315. !•' Georgia r. Atkins, 1 Abb. U. S. "''J Fryser /•. Russell, 3 Hughes. R., 22. And this doctrine would 227. seem to be sustained by the reason- ' Cutting i\ Gilbert, 5 Blatch., ing of the court in Cutting r. Gil- 259. bert, 5 Blatch., 259, although the ^' Id. injunction was refused in that case 490 iNJuxcTiONS. [chap. VII r. § 509. Levy on property for tax of another. Upon the question of granting injunctive relief against a levy upon the property of one person for the tax of another, the authori- ties are not altogether harmonious. The better considered doctrine, which is based upon the fundamental principle deny- ing relief by injunction against the enforcement of taxes when an adequate remedy exists at law, is that the levy of a war- rant against the property of complainant for unpaid taxes assessed against a third person will not ordinarily be en- joined ; since in such case the officer levying the warrant would be guilty of a trespass, the warrant giving him no authority to take property other than that of the person assessed, and the remedy at law for such a trespass would be ample.^ Where, however, a tax collector levies upon the property of one per- son to satisfy a tax against another, a court of equity may properly grant an injunction upon a bill alleging the insol- vency of the collector, the relief being allowed under such circumstances because of the inadequacy of the remedy at law.^ And where it is sought to levy upon complainant's real property for the tax of another, the relief will be granted.^ § 510. Effect of legislation curing defects. A court of equity will not interfere by injunction with tax proceedings which, though originally defective, have been subsequently cured by an act of legislature."^ And although the assessment of a tax has once been enjoined by a court of competent juris- diction, upon the ground of its being unauthorized by law, it is still competent for the legislative authority to cure the defect in the law, and to authorize a re-assessment of the tax. And while in such case the injunction against the former pro- 3 M. R., F. S. & Gulf R. Co. v. v. Widmayer, 196 111., 623, 63 N. E., Wheaton, 7 Kan., 232; White v. 1078. Steuder, 24 West Va., 615. Contra, ^ Deming v. James, 72 111., 78. Rothwell V. County of Knox, 62 •'"' Weyse r. Crawford, 85 Cal.. Neb., 50, 86 N. W., 903; Irvin r. 196, 24 Pac, 735. Railroad Co., 94 111., 105; Searing « Cogwill r Long, 15 111., 202. V. Heavysides, 106 111., 85; Gondii CHAl'. VIII.] AGAINST TAXES. 491 ceedings remains a perpetual bar to the enforcement of that assessment, it does not operate upon the new proceedings taken under legislative authority for the purpose of a re-as- sessment, and such new proceedings are in no sense a re-open- ing of the former judgment granting the injunction, that judgment being only effective against the former proceedings.''' So when an injunction has been granted against the collection of a tax because of a defect in the assessment, which defect is remedied by a subsequent legislative enactment, and a new assessment is then made under new legislative author- ity, the former injunction does not operate as res judicata to prevent such re-assessment and re-levy of the tax.^ §511. Preliminary proceedings; extending tax on books. The proceedings preliminary to the actual levy of a tax will not be enjoined, whether it is about to be imposed upon per- sonalty or realty, since the person at whose instance the suit is brought can not from_ the nature of the case obtain redress until the amount of his own tax has been ascertained by actual levy.^ Nor will a county clerk be enjoined from ex- tending a tax upon the collector's books, unless it is entirely unauthorized and void in toto; and if any portion of the tax is valid the court will not interpose until it is extended upon the collector's books.^*' § 512. Payment of taxes ; set-off. The fact that the taxes in question have actually been paid affords sufficient ground for enjoining a sale of real estate in satisfaction of such taxes.ii But a court of equity will not enjoin a county treas- urer from applying for judgment for delinquent taxes against complainant's lands upon the ground that the taxes have 'already been paid, when such payment can be interposed as a defense to the application for judgment, the remedy at law ' Mills V. Charleton, 29 Wis., 400. » Miller v. Grandy, 13 Mich., 540. And see Dean v. Borchsenius, 30 lo Ottawa Glass Co. v. McCaleb, Wis., 237. ' 81 111., 556. 8 City of Emporia v. Bates, 16 n City of Logansport v. Carroll, Kan., 495. 95 Ind., 156. 492 INJUNCTIONS. [CHAl'. VIII. being ample iu such case.^^ ]vjor will a tax be enjoined be- cause complainant has paid previous assessments which were illegal, and which he now seeks to have set off against the tax in question.' '"^ But a property ow^ner who has paid all taxes assessed against him for the years in question, may en- join additional taxes imposed for the same period without lawful authorit3\'^ § 513. Refusal of collector to receive amount fixed by arbi- tration. Where a bill in equity was pending against a tax collector to enjoin certain taxes against a private corpora- tion, and pending that proceeding an act of legislature was passed appointing a designated officer to determine what amount of taxes the corporation was justly liable to pay, and to certify such amount to the tax collector who should receive it in full satisfaction, upon compliance with the act and upon complainant tendering the amount fixed by the arbitrator, which the tax collector refused to receive, it was held a proper case for an injunction iu behalf of the corpo- ration to restrain the collector from collecting the tax.!'"" § 514. Recoupment of taxes not allowed. A county treas- urer who has paid over to the state treasurer certain money derived from taxes illegally assessed and collected, the money having passed beyond his control and into the hands of the state treasurer, will not be enjoined from paying over to the latter out of legal taxes subsequently received by him a sum equal to the illegal taxes before collected; since the granting of the relief in .such case would, in effect, be a recognition of the doctrine of set-off' or recoupment as against a sovereign state.i^ §515. Refusal of injunction confers no authority; decree void as to subsequent taxes. The i-efusal of an injunction 12 Dunham r. Miller, 75 111., 379. i-Tallassee Manufacturing Co. v. I-' Fremont r. Early, 11 Cal., 361. Glenn, r)0 Ala., 489. »< Scott V. Knightstown, 84 Ind., "■ Shoemaker r. Board of Com- 108. And see Hamilton r. Ams- missioners of Grant Co., 36 Ind., .den, 88 Ind., 304. 175. CHAP. Vlll.J AGAINST TAXES. 493 which is sought against the collection of taxes does not confer upon the officers any right or power to collect the tax, but merely leaves them possessed of such rights in that behalf as they had before the refusaL^" But where a bill against a county treasurer to enjoin taxes prays relief only against the taxes of a particular year, and the decree enjoins the defend- ant and his successors in office forever from attempting to collect any subsequent tax upon the property in question, such decree will be held void and inoperative as to the subse ([uent taxes and will be set aside as to them.^^ §516. Unincorporated company; illegal contracts for im- provements. It is held in Indiana, when taxes are about to be levied to be paid to a turnpike company for the construc- tion of a road, but the company is not properly incorpo- rated and is without authority to act and the tax is illegal, that its collection may be enjoined.'-* So where the directors of a company organized for the improvement of highways under the laws of the state have made contracts for such im- provements with their own members, such contracts being illegal, taxpayers are entitled to an injunction to prevent the collection of taxes levied for the payment of such improve- ments.-^ § 517. When personal property to be first taken. Where under the laws of the state lands of the taxpayer can not be sold for the enforcement of a tax while he has personal property subject to taxation sufficient to pay the tax, it is held that a sale of his lands for the unpaid tax, when he has sufficient personal property out of which it might be satis- fied, may be enjoined.-' 17 Commissioners of Johnson Co. 21 Abbott r. Edgerton, 53 Ind., r. Ogg, 13 Kan., 198. 196; Johnson v. Hahn, 4 Neb., 139, 18 Beach v. Shoenmaker, 18 Kan., overruling Hallenbeck v. Hahn, 2 147. Neb., 377; City of Logansport v. i» Knight V. Flatrock & Waldron Carroll, 95 Ind., 156. See also Turnpike Co., 45 Ind., 134. McPike v. Pen, 51 Mo., 63. -'0 Port V. Russell, 36 Ind., 60. 494 INJUNCTIONS. [chap. VIII. § 518. When cause of action partly good. When a bill is filed to enjoin a tax and a general demurrer is interposed to the entire bill upon the ground that it states no cause of action, the demurrer should not be sustained if the bill states a good cause of action as to a part of the tax in question.^- But a tax should not be enjoined as an entirety upon the ground that too much has been assessed.^s § 519. Injunction refused pending mandamus to allow ap- peal; insufficient bond on appeal. AYheu a taxpayer seeks an appeal from a judgment for the sale of his lands for delin- quent taxes, but the appeal is refused because of his failure to deposit the amount of the judgment as required by statute, whereupon he files his petition in the Supreme Court of the state for a mandamus to compel the inferior court to allow the appeal, he will not, pending the proceedings in mandamus, be allowed an injunction to prevent the sale of his lands for the unpaid taxes.^^ Where, however, the injunction has been properly granted in other respects, it will not be re- versed because the bond was for a sum much less than the amount of the tax and costs, when the defendant who is en- joined is not injured by reason of such deficiency.^^ § 520. Franchises. A court of equity will not, ordinarily, interfere by injunction with the collection of a tax upon a franchise because it has been illegally imposed, the proper remedy being at law.-^ Nor will the collection of an assess- ment for paving and improving streets be enjoined on the ground that such paving is an interference with the rights and franchises of a plank-road company having the right to use the streets, the injunction being sought, not by the company, but by an adjacent lot owner.^^ 22 Dean v. Borchsenius, 30 Wis., 2r> Drake v. Phillips, 40 111., 388. 237. 20 De Witt v. Hays, 2 Cal., 463. -'- Indianapolis r. Gilmore, 30 -'^ Bagg r. Detroit, 5 Mich., 336. Ind., 414. And in Maryland it is held that 2'« Andrews v. Rumsey, 75 111., unless the owners of a majority of 598. the feet fronting on a street to be CHAr. VIII.] AGAINST TAXES. , 495 § 521. Depreciation of property no ground for injunction. Great depreciation in the value of a particular property, as a watering place, resulting from the condition of the country during a civil war, affords no ground for relief in equity against a tax assessed against such property upon its valua- tion before the war. While such considerations may be properly addressed to the legislative branch of the govern- ment, they, can have no weight with the judicial, and equity will not assume jurisdiction to adjust the inequalities and mis- fortunes produced by civil war.^^ § 522. When sale of personal property enjoined. Where the jurisdiction of equity has attached for the purpose of annulling a tax certificate improperly issued and void, the court may properly proceed to enjoin a sale of personal prop- erty to satisfy the tax, the relief being allowed upon the fa- miliar principle that, its jurisdiction having once attached, the court should give all the relief to which the party may be entitled, although some portion of it might otherwise have been recoverable in an action at law.^^ § 523. Homestead entry. One who has entered land under the act of Congress known as the homestead law, and who has improved the same and resided thereon, can not enjoin a tax which was levied upon the premises before he obtained his patent from the United States; since he can not be heard to allege his own failure to perfect his title as a ground upon which to base his claim for relief.^*' § 523 a. Taxation of railway property. A railway company may enjoin the sale of its property in satisfaction of taxes paved assent in writing to the pav- or, 11 Md., 186; Bouldin v. Mayor, ing, the proceedings of the city 15 Md., 18. authorities are void, and equity ~» White Sulphur Springs Co. v. has jurisdiction on the application Robinson, 3 West Va., 542. of such owners as have not assent- 29 Hamilton v. Fond du Lac, 25 ed to restrain the sale of property Wis., 490. See also Peck v. School for such paving. Holland v. May- District No. 4, 21 Wis., 517. 30 Bellinger i\ White, 5 Meb., 399. 496 INJUNCTIONS. [chap. VIII. which are unconstitutional and in violation of its chartered rights, especially when the questions involved as to the differ- ent constituent parts of the railway, and the liability of each, are so complicated that relief may better be had in equity than at law.^^ And when it is sought to collect from a railway company a tax upon property in which it has no title or ownership and which it uses for a fixed compensation paid to another company, the owner of such property, relief may be had by injunction.-^'- So a railway company may enjoin the collection of taxes by distraint upon its rolling stock, machinery and other property, when it has tendered in pay- ment coupons of state bonds which, by the laws of the state, are receivable in payment of taxes, the relief being granted for the prevention of irreparable injury and because of the inadequacy of the remedy at law.^^ But the collection of a tax against a railway company can not be enjoined by a foreign company, unless the latter will be injuriously affected as to its own property by the collection of such tax, even though it is in possession of and operating the line of the domestic company under an operating contract.-'^ § 523 h. Property assessed in one place but taxable at another. Where proj^erty has been assessed for taxation in one place, but, by reason either of the domicile of its owner, or of the location of the property itself or of statutory enact- ment, it is properly taxable in another jurisdiction and has there been listed for taxation, a levy based upon such unau- thorized assessment is illegal and void and its enforcement will be enjoined. Thus, where property is taxable in one county and has there been assessed and the tax paid, relief will be allowed against the enforcement of a tax levied by 31 Wright V. Southwestern R. 33 Allen v. Baltimore & O. R. Co., Co., 64 Ga., 783. 114 U. S., 311. •''- Irvin ('. New Orleans, St. L. :'■* Archer v. Terre Haute & I. R. & C. R. Co., 94 111., 105. Co., 102 111., 493. CHAP. VIII.] AGAINST TAXES. 497 another county/'^ So where the plaintiff liad money on de- posit in a bank in a state other than that of his domicile, which was taxable as a chose in action at his domicile, an injunc- tion was granted to restrain the collection of a tax levied upon such deposit by the authorities of the state where the bank is situated.^*' So where the subject-matter of the tax is beyond the territorial jurisdiction of the taxing author- ities, the relief will be granted/^'^ And where a statute gives a corporation the option of returning its property for taxation either in the county where located or in the county where its principal place of business is situated and the corporation had returned for taxation in the county of its place of business and had paid the taxes on certain property located in another county, an injunction will lie to restrain the' collection of a tax levied upon such property by the county of its location.^^ So a tax levied by the authorities of a town against one who is a non-resident thereof will be restrained.^^ 35 Court V. O'Connor, 65 Tex., Nebraska City, 53 Neb., 453, 73 N. W., 952; Vogt v. Ayer, 104 III., 583. 38Penick v. High S. Mfg. Co., 113 Ga., 592, 38 S. E., 973. 39 Crim V. Town of Philippl, 38 West Va., 122, 18 S. E., 466. 334. 30Pyle V. Brenneman, 60 C. C. A.. 409, 122 Fed., 787. 37 Chicago, B. & Q. R. Co. v. Cass County, 51 Neb., 369, 70 N. W., 955; Chicago, B. & Q. R. Co. v. 32 498 INJUNCTIONS. [chap. VIII. II. Cloud Upon Title. § 524. Injunction granted to prevent cloud upon title. 525. Defects must be dehors the record. 526. Illustrations of the doctrine. 527. Fraudulent conduct of ofiicers or boards. 528. The same. 529. Sale of realty enjoined when tax should be satisfied out of per- sonalty. § 524. Injunction granted to prevent cloud upon title. The most generally recognized exception to the rule that equity will not interfere with the collection of the revenue because ■of defects or illegalities in the proceedings, is in cases where the proceedings if not enjoined would result in clouding the title to real estate. Thus, where the defect is not merely a for- mal one but works a substantial injury to complainant's rights, resulting in a cloud upon his title, the injunction will be granted.^ And where the proceedings sought to be set aside 1 Mitchell V. Milwaukee, 18 Wis., 92; Crane v. Janesville, 20 Wis., 305; Siegel v. Supervisors, 26 Wis., 70; Milwaukee Iron Co. v. Town of Hubbard, 29 Wis., 51; Johnson v. City of Milwaukee, 40 Wis., 315; Beaser v. City of Ashland, 89 Wis., 28, 61 N. W., 77; Dietz v. City of Neenah, 91 Wis., 422, 64 N. W., 299, 65 N. W., 500; Hey wood v. Buffalo, 14 N. Y., 534; Mutual B. L. Ins. Co. V. Supervisors, 33 Barb., 322; Morris C. & B. Co. v. Jersey City, 1 Beas., 227; Marquette, H. & O. R. Co. V. Marquette, 35 Mich . 504; Folkerts r. Power, 42 Mich., 283, 3 N. W., 857; Huntington v. Central P. R. Co., 2 Sawy., 503; Tilton V. Oregon C. M. R. Co., 3 Sawy., 22; Johnson r. Hahn, 4 Neb., 139, overruling Hallenbeck ''. Hahn, 2 Neb., 377; South Platte Land Co. v. Buffalo Co., 7 Neb., 253; Touzalin r. City of Omaha, 25 Neb., 817, 41 N. W., 796; Wiley V. Flournoy, 30 Ark., 609; Greedup V. Franklin Co., 30 Ark., 101; Hare v. Carnall, 39 Ark., 196; Mo- bile & Girard R. Co. v. Peebles, 47 Ala., 317; Fowler v. City of St. Joseph, 37 Mo., 228; Leslie v. St. Louis, 47 Mo., 474; McPike v. Pen, 51 Mo., 63; Goring r. McTaggart, 9 Ind., 200; Bramwell v. Guheen. 3 Idaho, 347, 29 Pac, 110; Benn r. Chehalis County, 11 Wash., 134, 39 Pac, 365; Tygart's Valley Bank v. Town of Philippi, 38 West Va., 219, 18 S. E., 489; Gregg v. San- ford, 12 C. C. A., 525, 65 Fed., 151; Taylor v. L. & N. R. Co., 31 C. C. A., 537, 88 Fed., 350; California CHAP. VIII.] AGAINST TAXES. 499 are valid upon their face and extrinsic facts are necessary to be proven to show their invalidity or illegality, equity will interfere to prevent a cloud upon title.- So where two lots have been assessed together as the property of a person own- ing but one of them and a gross tax has been imposed upon the two, the case is regarded as falling within the exception, and the injunction may be allowed.^ So, too, where a city charter declares a tax a lien upon the premises on which it is assessed, the tax, if illegal, creates such a cloud upon the title as to warrant an injunction. Nor, in such case, does the fact that there was sufficient personal property out of which the tax might have been collected vary the question or avail against the injunction.^ And the jurisdiction thus to interfere for the prevention of a cloud upon title is regarded as pertaining to the well settled powers of equity, which will interfere to prevent such a cloud as tends to diminish the value of the property or cast a doubt upon the title.'^ Thus, the sale of real estate for the collection of an unpaid assessment under a void precept may be restrained for the prevention of a cloud upon the title.'' So the owner of real estate may enjoin the issuing of a tax deed to defendant, who claims to have purchased plaintiff's lot at a tax sale, when in fact the purchase did not cover the lot in question.'' & 0. Land Co. v. Gowen, 48 Fed., 261; S. C, 57 Barb., 383; Tilton v. 771; Southern Ry. Co. v. City of Oregon C. M. R. Co., 3 Sawy., 22; Asheville, 69 Fed., 359; Lytle v. Gregg v. Sanford, 12 C. C. A., 525, Black, 107 Ga., 384, 33 S. E., 414; 65 Fed., 151. Vesta Mills v. City Council, 60 S. 3 Crane v. Janesville, 20 Wis.. C, 1, 38 S. E., 226. And see Powell 305. (;. Parkersburg, 28 West Va., 698. * Scofield v. Lansing, 17 Mich., As to the right of a mortgagee to 437. such relief after judgment of fore- ^ Dean v. Madison, 9 Wis., 402 ; closure, see Horn r. Garry, 49 Touzalin v. City of Omaha, 25 Wis., 464, 5 N. W., 897. Neb., 817, 41 N. W., 796. 2 Dean i\ Madison, 9 Wis., 402; e Goring v. McTaggart, 92 Ind., Heywood r. Buffalo, 14 N. Y., 534; 200. Minnesota L. O. Co. v. Palmer, 20 " Koon v. Snodgrass, 18 West Minn., 468; Hanlon v. Supervisors Va., 320. of Westchester, 8 Ab. Pr. N. S., 500 INJUNCTIOKS. [chap. VIII. § 525. Defects must be dehors the record. It is to be ob- served, however, that where the relief is sought to prevent a cloud upon title it will only be granted in those cases where the illegality or irregularity complained of exists dehors the record. And where the objection to the validity of the tax or assessment appears upon the face of the tax proceedings, or upon the face of the proceedings by which alone the adverse party can claim title to the land sold for the unpaid tax, equity will not enjoin.^ Thus, where the assessment proceed- ings are void upon their face, so that a purchaser at a tax sale under those proceedings would not obtain a prima facie title, the remedy at law is perfect and an injunction will be refused.^ And where a tax deed, if issued, would not be prima facie evidence of title, and consequently would not cast a cloud upon complainant's title, relief by injunction will be denied.'** But where by statute a tax deed is made prima facie evidence of the regularity of all the proceedings incident to the assessment and sale, if the tax has been im- posed contrary to law, such a cloud upon the title will result as to warrant the interference of equity.^' Thus, where, contrary to a city charter, lots belonging to different owners have been assessed together, instead of separately, and for the improvement of streets not adjacent to the lots, the sale may be enjoined, the defects not appearing on the face of the deed which is, by statute, prima facie evidence of title.^2 Mere vagueness, however, or inaccuracy in the de- 8 Van Rensselaer r. Kidd, 4 » Van Doren v. Mayor, 9 Paige. Barb., 17; Bouton r. Brooklyn, 15 388. Barb., 393; Harkness r. Board of i" Minturn v. Smith, 3 Sawy.. Public Works, 1 McArthur, 121; 142. Robinson r. Gaar, 6 Cal., 273; n Palmer >: Rich. 12 Mich., 414; Bucknall v. Story, 36 Cal., 67; Jenkins r. Rock Co.. 15 Wis., 11; Byrne v. Drain, 127 Cal., 663, 60 Bramwell r. Guheen, 3 Idaho, 347 Pac, 433; Van Doren r. Mayor, 9 29 Pac, 110. Paige, 388; Dean /. Madison, 9 i-' Jenkins r. Rock Co., 15 Wis., Wis., 402. And see Wiggin r. New 11. York, 9 Paige, 17; Ctirtis r. East Saginaw, 35 Mich., 508. CHAP. VIII.] AGAINST TAXES. 501 scription of land to be sold for taxes is not sufficient to war- rant an injunction against the sale on the ground of prevent- ing a cloud upon title, since if the tax is justly due the cloud may easily be avoided by pajmient.^^ And where the de- scription in a tax deed is so defective as to render the deed utterly void, a court of equity will not interfere.^ ^ § 526. Illustrations of the doctrine. In conformity with the general doctrine as already stated, it is held that where the record of the tax proceedings is prima facie valid, and extrinsic evidence is necessary to show its invalidity, so that, there is no full and adequate remedy at law to correct an. abuse of the taxing power, equity may properly interfere by- injunction.^ ^ So where the invalidity of a tax sale is not ap- parent upon the conveyance, and the proofs of such invalidity are likely to be lost by time, proceedings under the tax sale may be enjoined for the prevention of a cloud upon the own- er's title.^" And when an invalid assessment has been made upon adjacent lot owners in a city for the improvement of a river, equity may enjoin the municipal authorities from exe- cuting to the contractor who has performed the work a cer- tificate for the assessment, since such a certificate would be an apparent charge or incumbrance upon the property which would constitute a cloud upon the title.^^ So when proceed- ings taken by a municipal corporation to enforce payment of an assessment for street improvements by a sale of prop- erty are void, an injunction against the sale may be granted for the purpose of preventing a cloud upon the title. ^^ So an injunction preventing a cloud upon title will be granted to 13 Burlington & M. R. R. Co. v. additional ground for relief by in- Spearman, 12 Iowa, 112. junction in such a case. >4Head r. James, 13 Wis., 641. i« Mobile & Girard R. Co. v. 15 Greedup p. Franklin Co., 30 Peebles, 47 Ala., 317. Ark., 101. And it is held in the i' Johnson r. City of Milwaukee, same case that the prevention of a 40 Wis., 315. multiplicity of suits at law affords '* Fowler r. City of St. Joseph, 37 Mo., 228. 502 INJUNCTIONS. [chap. VII f. restrain the enforcement of a tax levied under an act pro- viding for the taxation of the capital stock of corporations, upon the ground that the plaintiff is a joint stock company and not a corporation, since extrinsic evidence would be neces- sary to show that plaintiff does not cpme within the provisions of the act.i9 § 527. Fraudulent conduct of officers or boards. Upon like principles the courts have interposed by injunction against the enforcement of taxes dependent upon the fraudulent and arbitrary action of boards of public officers, intrusted by law with the duty of equalizing the valuations of property for purposes of taxation.-*^ Thus, where a change was made in the valuation of complainant's property after the adjournment of such a board, and without authority of law, thereby largely increasing such valuation, an injunction was allowed to pre- vent the extending of the taxes upon the tax books, since the illegality of the assessment in such case would not necessarily appear upon the face of a tax deed, and the deed would therefore constitute a cloud upon the title to complainant's lands.21 So when the proceedings of a board of equalization in increasing the assessment of complainant's lands, with- out authority of law and without notice or opportunity to be heard, are regular upon their face, and require extrinsic evidence to establish their invalidity, relief by injunction is proper for the prevention of a cloud upon title.22 § 528. The same. The jurisdiction in this class of cases may also be exercised in connection with such circumstances of fraud as entitle complainant to equitable relief, and for the double purpose of relief against fraud and of preventing a cloud upon title. And when the authorities of a town in levying a tax have omitted to assess lands to the owners or 10 Gregg V. Sanford, 12 C. C. A., 21 Wiley v. Flournoy, 30 Ark., 525, 6.5 Fed., 1.51. 6U!). 20 Wiley V. Flournoy, 30 Ark., ■:-' South Platte Land Co. v. Buf- 609; South Platte Land Co. v. Buf- falo Co., 7 Neb., 253. falo Co., 7 Neb., 253. CHAP. VIII.] AGAINST TAXES. 503 occupants when known, and have intentionally made gross and excessive valuations, and have arbitrarily increased the valuation without proof, for the purpose of compelling the owners to pay more than their just proportion of the taxes, relief by injunction may be granted, both on account of the fraud shown and to prevent a cloud upon complainant's title.^-'^ And under such circumstances it is proper to interfere while the warrant and tax roll are still in the hands of the town officers and before the lands are sold for taxes, since the tax is a lien upon the property from the time of its assessment; and the illegalities complained of not appearing upon the record of the tax proceedings, but existing dehors, the pro- ceedings are regarded as constituting a cloud upon title of the most serious character and demanding the immediate inter- position of a court of equity.-^ § 529, Sale of realty enjoined when tax should be satisfied out of personalty. A court of equity may also enjoin a sale of lauds by a sheriff in satisfaction of a tax, for the prevention of a cloud upon the title, when the sheriff is authorized by law to levy only upon goods and chattels and not upon real estate.-^ And upon a statute requiring personalty to be first proceeded against in the enforcement of taxes before realty can be taken, a sale of complainant's real estate in satis- faction of unpaid taxes may be restrained when he has per- sonal property out of which the tax may be satisfied, the foundation of relief in such case being the necessity of pre- venting a sale whose only result would be to cast a cloud upon complainant's title.^^ So the execution of a tax deed may be enjoined where the sale of the premises was void because plaintiff had sufficient personal property out of which the taxes in question might have been satisfied.^''' 23 Milwaukee Iron Co. v. Town =6 Johnson v. Hahn, 4 Neb., 13S, of Hubbard, 29 Wis., 51. See overruling Hallenbeck v. Hahn, 2 Tainter v. Lucas, 29 Wis., 375. Neb., 377. And see Abbott v. Ed- -4 Milwaukee Iron Co. v. Town gerton, 53 Ind., 196. of Hubbard, 29 Wis., 51. 27 Morrison v. Bank of Com- 25 McPike V. Pen, 51 Mo., 63. merce, 81 Ind., 335. 504 INJUNCTIONS. [chap. Vlll. III. Property Exempt from Taxation. § 530. Injunction granted when property exempt. 531. The doctrine applied to railway property. 532. Lands exempted by United States. 533. Remission of tax by legislature. 534. Transfer of taxing power; omission to tax railway property. 535. Entire tax not enjoined because part exempt; property in re- ceiver's hands. § 530. Injunction granted when property exempt. An im- portant exception to the general doctrine of non-interference by injunction against the collection of the revenue because of illegality in the tax is recognized in that class of cases where the relief is sought against a tax assessed upon property which has been exempted by law from taxation. Indeed, the excep- tion has been so uniformly recognized as to become of itself a governing rule in the class of cases now under consideration. And it may be laid down as the established doctrine of the courts that the attempted enforcement of a tax upon prop- erty which has been exempted by proper legislative authority from the burdens of taxation, constitutes a grievance of so irreparable a nature as to merit preventive relief by injunc- tion.^ And where an act of legislature, held by the court to 1 Illinois Central R. Co. y. Coun- Wal., 603; Gonzales v. Sullivan, 16 ty of McLean, 17 111., 291; Illinois Fla., 791; County of Anderson r. Central R. Co. v. Hodges, 113 111., Kennedy, 58 Tex., 616; Interna- 323; Morris Canal & Banking Co. tional & G. N. R. Co. v. Smith /;. Jersey City, 1 Beas., 227; Oliver County, 65 Tex., 21; Davis v. Bur- i: Memphis & Little Rock R. Co., nett, 77 Tex., 3, 13 S. W., 613; 30 Ark., 128; Marquette, H. & 0. Mechanics Bank v. City of Kansas, R. Co. r. Marquette, 35 Mich., 504; 73 Mo., 555; North St. Louis Gym- Mobile & Girard R. Co. v. Peebles, nastic Society v. Hudson, 85 Mo., 47 Ala., 317; Mobile & O. R. Co. v 32; Philadelphia, W. & B. R. Co. v. Moseley, 52 Miss., 127; Missouri Neary, 5 Del. Ch., 600; St. Mary's River, F. S. & G. R. Co. r. Morris, Gas Co. v. Elk County, 168 Pa. St.. 13 Kan., 302; Railway Co. r. Mc- 401, 31 Atl., 1077; Vesta Mills r. Shane, 22 Wal., 444, affirming City Council, 60 S. C, 1, 38 S. E.. S. C, 3 Dill.. 303, and overruling 226; City of Staunton r. Mary in part Railway Co. v. Prcscott, 16 Baldwin Seminary, 99 Va., 653, 39 CHAP. Vni.J AGAINST TAXES. 505 be constitutional, exempts certain property from taxation, an injunction will be allowed against the enforcement of a tax upon such property.- So an injunction may be granted against the assessment of the property of a corporation where, under the terms of its charter as construed by the court of last resort of the state, the property is exempt from taxation.'^ But an exemption from taxation does not relieve the property of the burden of special assessments and equity will therefore not interfere with such assessments upon the ground that the property is exempt from taxation.^ And to entitle the taxpayer to relief against the collection of a per- sonal tax upon the ground that the personalty is exempt, it must appear that such property is included in his assessment. Where, therefore, the plaintiff seeks relief against a tax al- leged to be upon personal property belonging to him but which is exempt, and it appears that he has taxable personalty which exceeds in value the amount of his assessment, the relief will be denied.^ § 531. The doctrine applied to railway propert;y. The doc- trine as above stated is frequently applied in cases of rail- way property which has been exempted from taxation. Thus, where a statute exempts from taxation the lands of a railway company which are actually occupied by the company in the exercise of its franchise, the collection of a tax upon such lands may properly be enjoined.^ And while, as we have S. E., 596; Phelan r. Smith, 22 * Yates r. City of Milwaukee, 92 Wash., 397, 61 Pac, 31; Louisville Wis., 352, 66 N. W., 248. & N. R. Co. i: Gaines, 3 Fed., 266. ■• Siegfried r. Raymond, 190 111., And see Union & Planters Bank r. 424, 60 N. E., 868. City of Memphis, 49 C. C. A., 455, « Marquette, H. & 0. R. Co. v. Ill Fed., 561. Marquette, 35 Mich., 504; Illinois ~ Illinois Central R. Co. v. Coun- Central R. Co. v. County of Mc- ty of McLean, 17 111., 291; Illinois Lean, 17 111., 291; Illinois Central Central R. Co. v. Hodges, 113 111., R. Co. r. Hodges, 113 111., 323. See 323. also Tomlinson i\ Branch, 15 Wal., •'' Morris Canal & Banking Co. v. 460. And see this case as to the Jersey City, 1 Beas., 227. effect of a consolidation with an- 506- INJUNCTIONS. [chap. Vlil. already seen, courts of equity are usually averse to interfer- ing with the enforcement of taxes merely upon the ground of their illegality, yet where the threatened injury is of an irrep- arable and uncertain nature, so that damages at law can not give adequate redress, the aid of equity may be properly invoked. Thus, where the property of a railway company is exempted by law from taxation for a given period of time, a sale of such property for taxes imposed in violation of the law may be enjoined. And the relief is allowed in such case upon the ground of irreparable injury, since a sale of the railroad would necessarily interfere with or suspend its busi- ness, and the damages resulting could not by reason of their uncertain character be ascertained.''' So where a railroad is by its charter exempted from taxation until its income shall reach a certain percentage upon the amount of its cost, it would seem to be proper to enjoin the collection of a tax upon the road until its income has reached the given standard, the relief being granted in such case to prevent irreparable injury, a multiplicity of suits and a cloud upon title. ^ § 532. Lands exempted by United States. It is also an established rule that where lands have been set apart by the general government for the use of Indian tribes, and have been exempted by law from taxation until they shall be sold and patented to purchasers, the enforcement of a tax upon such lands while thus exempt from taxation may be enjoined.^ So where lands have been granted by the United States in aid of the construction of a railway, but the legal title has not yet passed from the government, and the lands are not, there- fore, subject to taxation by the state in which they are lo- cated, the United States still having an interest in them which can not be. divested by the exercise of the taxing power on the other company upon the right to « Mobile & 0. R. Co. v. Moseley, relief in such cases. 52 Miss., 127. 7 Oliver r. Memphis & L. R. R. '•' Missouri River, F. S. & G. R. Co., 30 Arlt.. 128. Co. v. Morris, 13 Kan., 302. CHAP. VIII. J AGAINST TAXES. 507 part of the state, a court of equity may enjoin the collection of taxes upon such lancls.^*^ But an injunction will not be allowed to prevent the enforcement of a tax upon such lands when the title has passed from the government to the railway company, and when the United States has no longer any inter- est in the lands which would prevent their taxation by the state.^i §533. Remission of tax by legislature. The absolute re- mission of a particular tax may also afford ground for en- joining an attempt at its enforcement, it being regarded as a competent exercise of legislative power over the subject of taxation to remit a tax as an entirety. And where an act of legislature has remitted a particular county tax upon the property of a railway company, the act not being in conflict with the constitution of the state, a court of equity may set aside a sale of the property of the railway for the tax so re- mitted, and may enjoin a purchaser at such sale from asserting any title thereunder.^- §534. Transfer of taxing- power; omission to tax railway property. But an act of legislature whose terms authorize a transfer or sale of the taxing power of the state with ref- erence to certain corporations, releasing them on certain con- ditions from further taxation, being held unconstitutional, its enforcement may be enjoined.^ ^ And in such case any tax- payer or loan creditor of the state has such an interest in the matter as to make him a proper party to the bill.^'* But, although a statute exempting railway corporations from their due proportion of taxation be unconstitutional, the omis- sion in pursuance of the statute to tax the property of such railways in the same ratio that individual citizens are taxed 10 Railway Co. v. McShane, 22 12 Mobile & Girard R. Co. v. Pee- Wal.. 444, affirming S. C, 3 Dill., bles, 47 Ala., 317. 303, and overruling in part Rail- is Mott v. Pennsylvania R. Co., way Co. V. Prescott, 16 Wal., 603. 30 Pa. St., 9. 11 Hunnewell v. Cass County, 22 1* Id. Wal., 464. 508 INJUNCTIONS. [chap. VIII. will not render void a tax levied upon the property of others subject to taxation. Nor will such omission authorize one who has been properly assessed to enjoin the collection of the tax against his own property.'"^ § 535. Entire tax not enjoined because part exempt; prop- erty in receiver's hands. While, as we have already seen, equity may properly enjoin the collection of taxes upon prop- erty which is legally exempt from taxation, it will not restrain the collection of an entire tax because in determining the valuation of complainant's taxable property in the aggregate the exempted property may have been included as a factor.^*' And where, under the constitution of the state, property used exclusively for school purposes is exempt from taxation, an injunction will not lie to restrain a sale for unpaid taxes when the property is used partly for school purposes and in part as a private residence.^ '^ Nor is the fact that property has been placed in the hands of a receiver regarded as exempting it from the taxing power of the government. And where, in such case, the warrants in the hands of the tax collectors are regular upon their face and the collectors are acting under them in good faith in the discharge of their duty, a court of equity may properly refuse to enjoin the collection of the tax.18 15 Muscatine v. Mississippi & M. ^^ Red v. Johnson, 53 Tex., 284. R. Co., 1 Dillon, 536. is Stevens v. New York & 0. M. 16 Huck V. Chicago & A. R. Co , R. Co., 13 Blatch., 104. 86 111., 352. CHAP. Vlll.J AGAINST TAXES. 509 IV. Municipal Taxation. § 536. Rule of non-interference relaxed as tx) municipal corporatioos ; illustrations. 537. Violation of rule of uniformity; tax upon traders. 538. Invalidity dehors the record; omission of property; property improperly included or exempted. 539. Omission of estimate of expense. 540. Dispute as to municipality to which property belongs. 541. Misappropriation of corporate funds. 542. The same. 543. Injunction refused where remedy at law. 544. Equity will not review proceedings of municipal officers. 545. Mere illegality not sufficient ground for injunction. 546. Municipal tax against personal property not ordinarily en- joined. 547. Enlargement of municipal limits. 548. Excessive taxation of lots; real estate excluded from city limits. 549. Acquiescence of property owner as an estoppel. 550. Limitations upon the doctrine of estoppel. 551. Amount due must be paid or tendered; exceptions. . 552. "When injunction allowed as an incident to other relief. 553. Tax upon business in city; license tax upon occupations. 554. Assessment for improving streets, when enjoined. 555. Repeal of ordinance; premature application; municipal elec- tion to vote tax. 556. Assessments for pavements and improvements; assessment based on frontage rule. 557. Municipal bonds illegally issued. 558. Debt due from city can not be set off against tax. 559. Effect of injunction against paying interest on municipal bonds. 560. Advertising for bids. 560a. Fraud as ground for relief. 5606. Irregularities in organization of municipal corporation no ground for injunction. § 536. Rule of non-interference relaxed as to municipal corpo- rations; illustrations. It will be found upon examination that courts of equity have been inclined in cases of assessments by municipal corporations to relax somewhat the stringency of the rule of non-interference as applied to the collection of 510 INJUNCTIONS. [chap. VIII. state taxes, and relief by injunction has been more freely granted against the collection of municipal taxes than in cases affecting the collection of revenues by the state.^ And while it is difficult to perceive any sufficient reason for such distinction, the distinction itself remains. Thus, it is held that the general rule denying relief in equity against the col- lection of an illegal tax, in the absence of special circum- stances bringing the case within some recognized head of equity jurisdiction, applies only to taxes levied by the sover- eign, and not to taxes or assessments imposed by inferior bodies, such as municipal corporations.^ And a sale of real estate in satisfaction of a municipal tax imposed without au- thority has been enjoined upon the ground of preventing a cloud upon title.^ The relief has also been granted, even though no question as to cloud upon title was raised.* So the collection of a municipal tax such as a special assessment or a poll tax will be enjoined where the municipality was wholly without power under its charter to levy the tax in question.^ So a municipal tax levied for the support of public schools, which was illegal because the question of such taxation was not submitted to the taxpayers and voters of the city, has been enjoined.^ And although a tax be authorized by act 1 See opinion of Miller, J., in even though done under authority Parmley v. Railroad Companies, 3 of the laws of the United States. Dill., 25. :< Smith r. Longe, 20 Fla., 697. 2 Alexandria C. R. & B. Co. v. 4 Foster r. Kenosha, 12 Wis., 616; District of Columbia, 1 Mackey, Toledo v. Lafayette, 22 Ind., 262. 217. And in the same case it is s Lee v. Town of Mellette, 15 S. held that § 3224 of the Revised Dak., 586, 90 N. W., 855; Morris Statutes of the United States, r. Cummings, 91 Tex., 618, 45 S. which provides that "No suit for W., 383. the purpose of restraining the as- « City of Fort Worth v. Davis, 57 sessment or collection of any tax Tex., 225. As to the right to en- shall be maintained in any court," join the collection of a tax voted applies only to cases arising under by a school district for the erec- the internal revenue laws of the tion of a school-house, see Casey United States, and not to assess- r. Independent District, 64 Iowa, znentB imposed by a municipality, G59, 21 N. W., 122. CHAP. VIII.] AGAINST TAXES. 511 of legislature, yet where the municipal authorities have dis- regarded and failed to comply with all the requirements of the statute, equity will enjoin a sale of land for such tax upon the ground that the proceedings are coram non judice and void.'^ So an injunction is regarded as the appropriate remedy to prevent the enforcement of a municipal tax in excess of the limit prescribed by the constitution of the state.^ And where a county officer is authorized by law to levy, in addition to the regular taxes, a special or extraordinary tax, with the consent of two-thirds of the grand jury of the county, for certain purposes enumerated by law, such as the discharge of judgments against the county, he may be enjoined from making such levy without the consent of the requisite num- ber of the grand jury, and when it is not clearly shown that the tax is necessary for the special purposes prescribed by law.^ So the owner of lots in a city, whose property is assessed for street improvements, may maintain an action against the city for an injunction when his assessment has been increased by the unauthorized omission by the assess- ors of other lands from the assessment.^ *^ In such case, the assessors not having complied with the law and the assess- ment being confirmed by the common council of the city without legal right, there is an excess of authority which is absolutely fatal to the assessment, the case being properly distinguishable from that of a mere irregularity in the ex- ercise of an unquestioned power.^^ So upon a bill by a tax- T Mayor v. Porter, 18 Md., 284; 569, 8 S. W., 718. See also City Holland v. Mayor, 11 Md., 186; of Springfield v. Edwards, 84 111., Bouldin v. Mayor, 15 Md., 18; 626. Mayor v. Grand Lodge, 44 Md., 9 Couper v. Rowe, 42 Ga., 229. 436; Morris v. Merrell, 44 Neb., lo Hassan v. City of Rochester, 423, 62 N. W., 865. See also But- 65 N. Y., 516, reversing S. C, 6 ler V. City of Detroit, 43 Mich., 552, Lans., 185; Same v. Same, 67 N. Y., 5 N. W., 1078. 528. 8 Overall v. Ruenzi, 67 Mo., 203; ^i Hassan v. City of Rochester, Howell V. City of Peoria, 90 111., 67 N. Y., 528. 104; Arnold v. Hawkins, 95 Mo., 512 INJUNCTIONS. [chap. VIII. payer to enjoin a municipal corporation from incurring any indebtedness in excess of the maximum fixed by the consti- tution as the limit of municipal indebtedness, it is proper, in connection with such injunction, to enjoin the levying of taxes in payment of the indebtedness beyond the constitutional limit.^- And where the municipal authorities have levied a tax to an amount which exceeds the limit prescribed by law, the collection of such a tax will be enjoined. Thus, where a statute provided that the county board should make a levy for each fund, but imposed a limitation upon the levy, which should consist of the entire amount of the salaries for the year with an addition of twenty-five per cent, for delinquents, a tax levied in excess of such limitation is illegal and its en- forcement will be enjoined.^^ So where town authorities, in levying taxes, are confined by law to the valuation placed upon property for state and county taxes, but in violation of such provision are assessing it at a higher rate, equity will enjoin the collection of that portion of the tax which is founded upon such illegal excess.^ ^ § 537. Violation of rule of uniformity ; tax upon traders. The violation by municipal officers in levying a tax of the rule of uniformity in taxation as prescribed by the constitu- tion of the state affords sufficient ground for enjoining them from proceeding with the collection of the tax.^^ Thus, where the authorities of a city, in imposing a municipal tax upon 12 City of Springfield v. Ed- Valley R. Co. v. Supervisors, 78 wards, 84 111., 626; Culbertson «'. Va., 269. But in Young v. Town City of Fulton, 127 111., 30, 18 N. of Henderson, 76 N. C, 420, it is E., 781. held that where the tax is levied i-' Wiggins V. A., T. & S. F. R. for the payment of a judgment Co., 9 Okla., 118, 59 Pac, 248. rendered against the municipality, !■» Tygart's Valley Bank v. Town the court will not, in such collat- of Philippi, 38 West Va., 219, 18 eral proceeding, permit the judg- S. E., 489. ment to be questioned or Im- '•'• Young V. Town of Henderson, peached, in the absence of any 76 N. C, 420; Gould /■. Mayor of allegations of fraud, but will re- Atlanta, 55 Ga., 678; Shenandoah gard it as res judicata. CHAP. VIII. J AGAINST TAXES. 513 traders exercising their vocation within the city, unjustly discriminate between resident and non-resident traders, in vio- lation of the constitutional rule of uniformity, an injunction is the appropriate remedy.^^^ And the great hardship and oppression of an illegal municipal ordinance imposing such a tax, coupled with the severity of its penal provisions and the forfeiture of goods imposed for non-payment of the tax are regarded as affording sufficient grounds for relief in equity, notwithstanding a remedy at law.^'^ "Where, however, it is sought to restrain the collection of municipal taxes upon real property, which are regularly assessed under a general ordi- nance for raising revenue to meet the current expenses of a city, the sole ground upon which the relief is sought being a violation of the rule of uniformity, an appellate court will not revise the action of the court below in refusing a preliminary injunction, when the questions involved are of grave impor- tance, embracing the entire system of municipal finance of the state.^^ §538. Invalidity dehors the record; omission of property; property improperly included or exempted. When an invalid municipal tax or assessment is regular upon its face, the invalidity appearing only by evidence dehors the record, its enforcement may be prevented by injunction.^ ^ And when municipal assessors in making an assessment have acted upon an erroneous principle and have omitted property benefited by the improvement, in disregard of the provisions of a charter requiring the assessment to be made upon property benefited by the improvement in proportion to the advantages derived therefrom, relief by injunction may properly be invoked.-"^ So if, in disregard of such requirements of the charter, they 16 Gould IK Mayor of Atlanta, 55 i9 Ogden City v. Armstrong, 168 Ga., 678. U. S., 224, 18 Sup. Ct. Rep., 98. IT Id. 20 Clark v. Village of Dunkirk, 18 Wayne v. Mayor of Savannah, 12 Hun, 181; Kennedy v. City of 56 Ga., 448. Troy, 14 Hun, 308. 33 51-1 INJUNCTIONS. [chap. VIII. have assessed property which can not possibly be benefited by the improvement, equity may relieve by injunction. -^ And where the authorities of a city have exempted certain property from taxation, thereby increasing the burden upon other property, the exemption being illegal, an injunction will be granted to prevent the sale for taxes of the lands so as- sessed, upon the ground that the omission was intentional and not the result of accident.-- So when an assessment of property for municipal taxation has been corrected in the manner and by the tribunal fixed by law for such purpose, but the municipal authorities proceed to levy the tax upon the original assessment which has been invalidated, the ap- propriate remedy is by injunction.-^ § 539. Omission of estimate of expense. Where the charter of a city authorizes municipal improvements, such as the making of sewers or opening of streets, to be paid by taxes imposed upon property benefited thereby, but imposes cer- tain conditions upon the city as necessary to give it jurisdic- tion to make the assessment, a strict compliance with such conditions is usually required to sustain the validity of the assessment. And where the charter requires, as such a condi- tion, that an estimate be made of the whole expense of the work and of the amount to be charged against each lot, which estimate shall be filed in the ofRce of the city clerk for the in- spection of all parties in interest, the making and filing of such estimate by the city authorities are jurisdictional in their nature and their omission renders the proceeding entirely void. A court of equity may, therefore, in such a case, enjoin a sale of the lots for such assessment, or, if the sale has already been made, may enjoin the issuing of a tax deed upon the certificate of sale.2^ 21 T.ongley v. City of Hudson, 4 -■''City of Richmond v. Cren- Thomp. & C, 353. shaw, 76 Va., 936. 22 Weeks v. Milwaukee, 10 Wis., ^4 Massing r. Ames, 37 Wis., 645; 242; Hersey v. Supervisors, 16 Pound v. Supervisors of Chippewa Wis., 185. Co., 43 Wis., 63. CHAP. VIII.] AGAINST TAXES. 515 § 540. Dispute as to municipality to which property be- longs. R-elief by injunction is also granted for the purpose of preventing the enforcement of a tax by a municipality other than that to which the property assessed rightfully belongs. 2^ For example, when the same property is taxed in two different counties, each claiming the right to levy a tax thereon, there being a dispute between the counties as to their territorial boundaries, the enforcement of the tax by the county to which the property does not pertain may be enjoined.-*^ So the owner of land situated in two adja- cent towns, who has been assessed by the municipal authori- ties of both, may have relief by a bill in the nature of a bill of interpleader against the tax collectors of the differ- ent towns to determine to which of them the tax is due, and in such action he is entitled to an injunction to restrain the collection of the illegal tax.^^ § 541. Misappropriation of corporate funds. While courts of equity do not interfere with the action of municipal officers under their legislative or discretionary powers, they will yet relieve by injunction in behalf of citizens and taxpayers to prevent the corporate officers of a municipality from a mis- appropriation of its property and funds. And where, with- out legal authority, the common council of a village have pur- chased land, erected buildings thereon for private purposes, and have issued municipal bonds pledging the corporate prop- erty and its faith and credit tor their payment, and have sold such bonds to their own members, so gross a breach of trust and fraud upon taxpayers will warrant a court of equity in enjoining the collection of a tax imposed for the payment of interest upon such bonds. ^^ 25 Eversole v. Cook, 92 Ind., 222. 27 Dorn v. Pox, 61 N. Y., 264, 26 Union Pacific R. Co. v. Carr, reversing S. C, 6 Lans., 162. 1 Wyoming, 96. But see, contra, 28 Stierlock v. Village of Winnet- Chisholm v. Adams, 71 Tex., 678, ka, 59 111., 289; S. C. upon final 10 S. W., 336. hearing, 68 111., 530. 516 iNJuxcTioxs. [chap. viir. § 542. The same. Where a city has itself created a nui- sance by the construction of its streets in such a manner as to cause the water to stand upon certain lots, it can not, for the purpose of abating the nuisance, tax the lots themselves, and a sale of such lots for payment of the tax will be enjoined.^^ And a city being regarded as in the nature of a trustee for the corporators, an unauthorized appropriation of its funds, as for the celebration of the Fourth of July, may be enjoined by taxpayers.^^ So where, in violation of its charter, a municipal corporation is about to issue its bonds and securi- ties for a purpose unauthorized by law, and to levy a tax for the payment thereof, property owners liable to such tax are entitled to an injunction against the municipal authori- ties upon the ground of preventing a multiplicity of suits. But such individual taxpayers can not restrain the munici- pal authorities from controlling and disposing of so much of the tax as has already been collected, and if any illegal appropriation of such money is attempted or threatened, it can only be restrained upon complaint of some one represent- ing the entire public to whom the money belongs.^^ § 543. Injuntion refused where remedy at law. Although relief by injunction is, as we have thus seen, more freely granted in cases of municipal assessments than in cases of general taxes, still if the objections may be urged and the grievances adjusted in a court of law, equity will not inter- fere with the assessment.^- And where, by the proceedings of the corporate authorities in making the assessment, a rem- edy is provided for all persons aggrieved, and the proceed- 29 Weeks v. Milwaukee, 10 Wis., Co., 25 111., 43; Fajder v. Village 242. of Aitkin, 87 Minn., 445, 92 N. W., 30 New London v. Brainard, 22 332, 934; Kerr v City of Waseca, Conn., 552. 88 Minn., 191, 92 N. W., 932; Rid- 31 Coulson V. Portland, Deady's die v. Town of Charlestown, 43 Reports, 481. West Va., 796, 28 S. E., 831. And 3ii McBride v. Chicago, 22 111., see Douglass v. Town of Harris- 574; Ottawa r. Chicago & R. I. R. ville, 9 West Va., 162. CHAP. Vlll.] AGAINST TAXES. 517 ings may be removed by certiorari to the proper tribunal, an injunction will not be granted.^^ So equity will not enjoin the sale of lands under a judgment for a delinquent special assessment upon the ground that the improvement was not made in compliance with the provisions of the ordinance, since the aggrieved party has a complete remedy at law by mandamus to compel the city to construct and complete the work in accordance with the specifications of the ordinance.^* And in no event will such a sale be enjoined upon grounds of which the taxpayer might have availed himself by way of objection either to the judgment of confirmation or of sale.^^ Nor will an injunction be allowed to restrain the exercise of the munici- pal authority of a city in the levying and collection of a tax upon the ground that the passage of an ordinance in relation to the tax is in violation of the city charter.^^ § 544. Equity will not review proceedings of municipal officers. It is also to be borne in mind in determining the nature and extent of the jurisdiction of equity in restraint of municipal taxation, that a court of equity will not sit as a court of errors to review and correct the proceedings of municipal bodies and of inferior political jurisdictions em- powered by law with the levying of assessments, this being- properly matter of legal rather than equitable cognizance.^'^ 33 Betts V. Williamsburgh, 15 3g Page v. St. Louis, 20 Mo., 137. Barb., 255; United Lines T. Co. v. 37 Mayor v. Meserole, 26 Wend., Grant, 137 N. Y., 7, 32 N. E., 1005. 132, rever ing S. C, 8 Paige, 198: 34 Callister v. Kochersperger, 168 Hey wood v. Buffalo, 14 N. Y., 534; 111., 334, 48 N. E., 156; Heinroth Blake v. Brooklyn, 26 Barb., 101; V. Kochersperger, 173 111., 205, 50 Lambeth v. DeBellevue, 24 La. N. E., 171; Craft r. Kochersperger, An., 394; West v. Ballard, 32 Wis., 173 111., 617, 50 N. E., 1061. 168; Brodnax v. Groom, 64 N. C, 35 Smith V. Kochersperger, 180 244. See also Mitchell v. Board 111., 527, 54 N. E. 614; Field v. of Commissioners, 74 N. C, 489. Village of Western Springs, 181 And in Blake v. Brooklyn, 26 111., 186, 54 N. E., 929. See Rusk Barb., 101, the court say: "If the V. Berlin, 173 111., 634, 50 N. E., assessment be illegal or unconsti- 1071; Watkins r. Griffith, 59 Ark., tutional, the plaintiff can not be 344, 27 S. W., 234. compelled to pay it, and he need 518 INJUNCTIONS. [chap. VIII. Thus, upon a bill to enjoin the collection of state and munici- pal taxes, the courts will not undertake to exercise a super- visory control over municipal officers charged by law with the duty of determining the amount of the tax. Such officers being a branch of the political department of the govern- ment, and having of necessity certain discretionary powers in the performance of their duties, the court will not, in such a proceeding, inquire into the propriety of their appropriations, and will only enjoin when they have acted without authority, or when they have violated some special provision of law.^'* Nor will the title of defendants to their offices in such case be inquired into upon the proceeding for an injunction.^^ So upon a bill to enjoin a tax levied for the payment of indebted- ness due from a town, the court will not review the allowance by the town officers of claims against the town.'**^ And where the taxing power is vested in county officers under proper legislative authorit}^ subject to the restriction or condition that it shall be exercised only for the necessary expenses of the county, a court of equity will not attempt by injunction to interfere with the discretion of such officers as to what constitute necessary expenses."^^ So when the taxing power not anticipate in this way (by in- will not extend its jurisdiction to junction), this defense to a suit review such proceedings, unless at law. The assessment is not yet they are productive of peculiar or laid or its amount ascertained; in- irreparable injury to the land of deed the work is not done or even the plaintiff or must lead to a mul- commenced, and therefore there tiplicity of suits." can not be a pretense of a cloud "s Lambeth v. DeBellevue, 24 La. upon the title of the land. If an An., 394; Lemont v. Singer & T. S. assessment were laid, however, for Co., 98 111., 94. the expense of this improvement, ^^ Lambeth r. DeBellevue, 24 La. it is well settled that a bill in An., 394. equity and an injunction are not *o Lemont r. Singer & S. T. Co., the proper means to review or cor- 98 111., 94. rect such proceedings of a munici- *^ Brodnax r. Groom, 64 N. C , pal corporation. There are suffi- 244. See also Mitchell r. Board ot clent common law remedies in Commissioners, 74 N. C, 489. such cases, and a court of equity CHAP, VIII.] AGAINST TAXES. 519 is fully and absolutely vested in a board of municipal officers, such as a county board of supervisors, without qualification or restriction, and the property in question is subject to taxa- tion, equity will not ordinarily interfere by injunction to re- strain the levy and collection of the tax, but will leave the taxpayer who is aggrieved by any irregularities or errors in the assessment to his appropriate legal remedy. The tax- ing power in such case is regarded as in the nature of a legis- lative power, and the courts are loth to interfere with the action of municipal officers instructed with such power, for the purpose of dete*rmining the necessary amount of taxes to be levied. In other words, the power to levy the tax being conceded, and the property being subject to taxation, equity should not enjoin because of irregularities or excessive as- sessments, but should leave complainant to pursue his legal remedy. And when such board of officers is charged with levy- ing a larger amount of taxes than is necessary, with the fraudulent design of applying such excess to an unlawful purpose, the court may refuse to enjoin the assessment, and wait until it is attempted to appropriate the money illegally, and may then enjoin if unable to afford any adequate legal remedy .■*- § 545. Mere illegality not sufficient ground for injunction. The general doctrine which has been discussed in the pre- ceding pages, denying relief by injunction against the col- lection of a general tax upon the ground of a mere illegality when it is not shown that its enforcement would lead to a multiplicity of suits, or produce irreparable injury or a cloud upon title, is equally applicable to an assessment made by a board of municipal officers, which is levied in the exercise of the taxing power for purposes of local improvement.^^ So it is held in Wisconsin that the fact of voters at a town meeting having voted an illegal tax is not of itself sufficient 42 West V. Ballard, 32 Wis., 168. Sperry v. City of Albina, 17 Ore., 43 Dean v. Davis, 51 Cal., 406; 481, 21 Pac, 453. 520 INJUNCTIONS. [chap. VIII. reason for restraining the town officers from carrying the action of the voters into effect. And in withholding equit- able relief in such case the court proceeds upon the prin- ciple that if the vote is carried into effect and an illegal tax is assessed it will not necessarily result in irreparable in- jury, since plaintiff's will have their action at law to re- cover back the money, if paid under protest, or on levy or distraint of personal property; or if the tax be extended against their real estate, they will have a remedy in equity to remove the supposed cloud from their title.^^ An addi- tional reason for withholding relief by injunction in such case is found in the great public inconvenience which would re- sult from the exercise of the jurisdiction under such circum- stances, since by such exercise of preventive relief it would lie in the power of every taxpayer to arrest by -injunction all proceedings upon the part of public officers in the discharge of their duties, and to compel such officers to come into a court of justice to establish and defend the correctness of their proposed official acts before proceeding to their per- formance.^^ § 546. Municipal tax against personal property not ordi- narily enjoined. Although relief by injunction has been al- lowed against a sale of lands in satisfaction of municipal taxes which were void,*^ or where there has been a failure to com- ply with the requirements of the law, the courts are exceed- ingly averse to interfering with a sale of personalty, pre- ferring to leave the aggrieved taxpayer in such case to pur- sue his legal remedy."*''^ And in cases of municipal taxes or assessments levied upon personal property, equity will not interfere by injunction merely because of the illegality of »• Judd V. Town of Fox Lake, 28 Ladd r. Spencer, 23 Ore., 193, 31' Wis., 583; Sage v. Town of Fifield, Pac, 474. 68 Wis., 546, 32 N. W., 629. *' Mayor v. Baldwin, 57 Ala., 61; '«.'■. Judd V. Town ofPox Lake, 28 Baldwin r. Tucker, 16 Fla., 258; Wis., 583. Williams v. Mayor, 2 Mich., 560. •»« Mayor v. Porter, 18 Md., 284; CHAP. VIII.] AGAI^ ST TAXES. 521 the tax, since in such case the taxpayer may find ample remedy at law by an action for the trespass which would result from the collection of such tax.'*^ So where authority is conferred by statute upon the common council of a city to make an assessment for paving, the court will not restrain the execution of a warrant against the goods and chattels of complainant in satisfaction of such assessment because of irregularities in the exercise of the power.*^ § 547. Enlargement of municipal limits. The extension by legislative enactment of the boundaries of a city or munici- pality, so as to embrace agricultural and farming lands and to subject them to larger burdens of municipal taxation, has given rise to frequent applications for preventive relief by injunction against the enforcement of the taxes thus imposed. There is a direct conflict of authority in the adjudicated cases upon the right to equitable relief in this class of cases. Upon the one hand, it has been held that where by legislative ac- tion the limits of a city have been extended by taking in a large amount of lands not necessary for municipal purposes, the sole object of such legislation being to make the lands in question liable to city taxation, the collection of such taxes may be properly enjoined.^^ Upon the other hand, the better doctrine undoubtedly is, that, so long as the power of taxation conferred by the legislative department of government upon a municipal corporation is not in contravention of the con- stitution of the state, and so long as its exercise is confined within the limits prescribed by law, equity will not enjoin the collection of a municipal tax imposed upon complainant's prop- erty because of its being farming property, and because of the extension by legislative enactment of municipal limits so 48 Mayor v. Baldwin, 57 Ala., 61; a town other than that of the situs Baldwin v. Tucker, 16 Fla., 258. of the property. Eversole r. Cook, But in Indiana it is held that an 92 Ind., 222. injunction will lie to prevent a *° Williams v. Mayor, 2 Mich., sale of personal property in satis- 560. faction of an assessment levied by ^o Langworthy v. Dubuque, 13 522 iNJuxcTiONS. [chap. viir. as to include such property. In such case, whether the power is wisely or unwisely bestowed, or whether its exercise is or is not burdensome upon the citizen, are questions whose determination rests with the legislative rather than with the judicial department, and equity will not, therefore, interfere by injunction.^^ And in a proceeding to restrain the col- lection of a municipal tax upon property which has been thus taken within the boundaries of a city, the court will not in- quire into or consider the motives which may have led to such action.''^ But where, under the laws of a state, a board of county commissioners are authorized upon the application of the common council of a city to annex contiguous territory to the city, but their authority is limited to granting such petition as a whole and they have no power to annex a part only of the property petitioned for, the annexation of a part will be treated as void, and the enforcement of taxation by the city authorities upon the part so annexed will be en- joined.^^ And w^hen the proceedings for such annexation are wholly void because of non-compliance by such board with the statute conferring their jurisdiction, equity may restrain the collection by the city of taxes upon the lands so an- nexed.^* Where, however, complainants have been guilty of great laches in asserting their rights, and have acquiesced for a series of years in the annexation, they will be estopped from enjoining, upon the ground of the invalidity of the an- nexation, a tax imposed upon their property annexed by the municipality.''^ Iowa, 86; Fulton v. City of Daven- City of Greenville, 67 Tex., 62, 2 port, 17 Iowa, 404. And see Brad- S. W., 742. shaw V. City of Omaha, 1 Neb., 16. su City of Logansport r. Seybold, •■■'i Groff V. Mayor of Frederick 59 Ind., 225. City, 44 Md., 67; Manley v. Ra- ca City of Peru c. Bearss, 55 Ind., leigh, 4 Jones Eq., 370. And see 576. Cooley on Taxation, 120. where the "'i Windman v. City of Vincen- reasons for withholding equitable nes, 58 Ind., 480. relief in such cases are very clear- ■>■> City of Logansport r. La Rose, ly presented. See also Graham v. 99 Ind., 117. CHAr. VIII.] AGAINST TAXES. 523 § 548. Excessive taxation of lots ; real estate excluded from city limits. It is proper, however, to grant relief by injunc- tion where city lots used by a railway company as a right of way are properly taxable as a right of way, but when in addition thereto they have been subjected to an increased assessment as town and city lots.^*^ And where the law pro- vides that no special assessment charged against real estate for improvements shall exceed one-quarter of the value of the realty and an assessment is levied beyond that amount, the excess will be enjoined." And where a tract of land forming an addition to a city has been vacated and should thereafter be taxed as an entire tract, instead of by separate lots as before the vacation, but portions of the tract are illegally assessed as lots, the enforcement of the tax as to such portions may be prevented by injunction.'^s So where, by an amendment to the charter of a city, a portion of com- plainant's real estate is placed outside the limits of the municipality, so that there is no power upon the part of the' city authorities to sell such real estate for delinquent taxes, although situated within the city boundaries when the taxes became due and payable, they may be enjoined from making such sale.^9 § 549. Acquiescence of property owner as an estoppel. The doctrine of equitable estoppel is frequently invoked for the purpose of defeating applications for equitable relief against < municipal taxation, when complainant's conduct has been such as to debar him from the relief sought. And it may be laid down as a general rule that where one has assented to the levying of a tax, either by directly petitioning that it be assessed for certain purposes, or by standing idly by and failing to avail himself of the remedy provided by law for 56 Chicago & N. W. R. Co. v. Mil- ^s Stebbins v. Challiss, 15 Kan., ler, 72 111., 144. 55. 57 Birdseye r. Village of Clyde, 59 Deason v. Dixon, 54 Miss., 585. 61 Ohio St., 27, 55 N. E., 169. 524 INJUNCTIONS. [chap. VIII. questioning the regularity of the proceedings, he is estopped from obtaining relief in equity, even though the proceedings were absolutely null and void.^'*' Thus, property holders who have petitioned the proper authorities for the paving of a street, and who, during the progress of the work, have made no objection, will not be allowed to enjoin the collection of the assessment. They are in such case considered as having actively consented to the proceedings resulting in the assess- ment, and their implied assent will be presumed to the assess- ment itself:"^^ And under such circumstances the question of the legality of the assessment will not vary the case, since, if it be invalid, the remedy of the parties aggrieved is at law.^^ And the owner of city lots who, with full notice of all the proceedings, encourages contractors to go on with the grad- ing of a street and assures them that they shall be paid, is estopped from invoking the aid of equity to enjoin the col- lection of a special tax upon his lots to pay for such grad- •ing.^3 gQ when a land owner whose property is benefited by 60 Kellogg V. Ely, 15 Ohio St., 64; ment for the improvement in ques- Jackson v. Detroit, 10 Mich., 248; tion. See also Montgomery v. Wa- King V. Ford River L. Co., 93 sem, 116 Ind., 343, 15 N. E., 795, Mich., 172, 53 N. W., 10; Weber v. 19 N. E., 184; Darst i: Griffin, 31 San Francisco, 1 Cal., 455; Peoria Neb., 668, 48 N. W., 819. But in V. Kidder, 26 111., 351; Meadow- Hopkins r. Greensburg Company, croft V. Kochersperger, 170 111., 356, 40 Ind., 44, it is held that the own- 48 N. E., 987; Sexsmith v. Smith, ers of lands illegally assessed for 32 Wis., 299; Ritchie v. City of the construction of public roads South Topeka, 38 Kan., 368, 16 are not estopped from enjoining Pac, 332; Stewart r. Board of the assessment because they have Commissioners, 45 Kan., 708, 26 stood by and seen the work pro- Pac, 683, 23 Am. St. Rep., 746; gress without objection, or because Wingate v. Astoria, 39 Ore., 603. they have used the road after its 65 Pac, 982, 6 Munic. Corp. Cas., construction. See also Greens- 815; Byram v. Detroit, 50 Mich., burg Company r. Sidener, 40 Ind., 56, 12 N. W., 912, 14 N. W., 968. 424; Pavy r. Greensburg Company, And see this case as to the effect 42 Ind., 400. upon the application for an in- «i Motz r. Detroit, 18 Mich., 495. junction of a subsequent act of the •">- Id. legislature authorizing a re-assess- «» Sleeper r. Bullen, 6 Kan., 300. CHAP. VIII.] AGAINST TAXES. 525 a municipal iniproveinent, such as the improvement of a high- way or street, has suffered the proceedings to go on with full knowledge thereof and without objection until the work is substantially completed, he is estopped in equity from re- lief by injunction against an assessment levied for payment of such improvement.^^ And where the plaintiff, a citizen and taxpayer, joins in a petition to the common council of a city for the improvement of a street in front of his premises, and interposes no objection to the work until after its completion, he can not be permitted to enjoin the issuing of a tax deed upon the sale of his premises for a tax levied for the pay- ment of such improvement."^ So property owners upon the line of a street whose property is subject to assessment for street improvements can not enjoin the city from making or enforcing assessments upon their premises in payment for such improvements, upon the ground that the work has not been done according to contract, or because of defects in its execution, when they have permitted it to be completed and accepted and the contract price to be paid before seeking relief in equity."^*^ But where a statute provides that assess- ments for the improvement of real estate shall not exceed one-quarter of the value thereof, a property owner will not be prevented from enjoining an assessment which exceeds that amount by the fact that he joined in the petition for the improvement, since he had no reason to know that the limita- tion thus imposed would be exceeded."^ 64 Quinlan v. Myers, 29 Ohio St., the city charter that the signing 500; Ritchie r. City of South Tope- of a petition for a street improve- ka, 38 Kan., 368, 16 Pac, 332; By- ment shall be construed as a re- ram V. Detroit, 50 Mich., 56, 12 N. lease of all claim for damages re- W., 912, 14 N. W., 968; Atwell -;;. suiting from such improvement. Barnes, 109 Mich., 10, 66 N. W., 6(! Liebstein v. Mayor, 9 C. E. 583; Fitzhugh v. City of Bay City, Green, 200; Dusenbury v. Mayor, 109 Mich., 581, 67 N. W., 904. 10 C. E. Green, 295. See also Lewis 65 Sexsmith v. Smith, 32 Wis., v. City of Elizabeth, 10 C. E. 299. And the court also hold that Green, 298. in such a case it is proper to take 67 Birdseye r. Village of Clyde, into consideration a provision of 61 Ohio St., 27, 55 N. E., 169. 526 INJUNCTIONS. [chap. VIII. § 550. Limitations upon the doctrine of estoppel. Not- withstanding the well established doctrine of equitable es- toppel as applied to the class of cases under consideration, a distinction has been drawn in its application between cases where relief is sought upon the ground of some irregularity, and cases where the tax is absolutely null and void. And in the latter class of cases it is held that the fact of com- plainant having delayed seeking relief until the improvement for which the assessment is levied is completed, or until his property is advertised for sale, does not constitute such laches or acquiescence as to debar him from relief by injunction.''^'* So the fact that the owner of property abutting upon a public street has failed to enjoin the prosecution of a work of im- provement upon the street, which has been illegally ordered by the municipal authorities, and has paid one assessment for the work under protest, will not operate as an estoppel to prevent him from obtaining an injunction against the collection of a subsequent assessment levied for the same work after its com- pletion.*^^ And it has been held that where an injunction against a tax levied in aid of a public improvement is resisted upon the ground of plaintiff's acquiescence in the work with- out objection during its progress, the answer relying upon this as an estoppel, it is not a sufficient bar to the relief unless it is shown that plaintiffs had a right of action for which they might have instituted proceedings earlier for the purpose of enjoining the tax."^*^ § 551. Amount due must be paid or tendered ; exceptions. The maxim that he who would have ecjuity must first do equity is applicable to cases where relief is sought by injunction against municipal taxation, as well as to other branches of the law of injunctions."^ And where a special assessment is made «« Holland v. Mayor, 11 Md., 186; oo Tallant v. City of Burlington, Mayor v. Porter, 18 Md., 284; May- 39 Iowa, 543. or V. Grand Lodge, 44 Md., 436; 7o Sim r. Hurst, 44 Ind., 579. Harmon v. City of Omaha, 53 Neb., '^i Meadowcroft v. Kochersperger, ]r,4. 73 N. W.. 671. 170 Tll„ 356, 48 N. E., 987. CHAP. VIII.] AGAINST TAXES. 527 upon city lots for the improvement of adjacent streets, and by mistake a portion of plaintiff's land is assessed for too large a sum, but the amount of such excess is plainly ascertainable from an inspection of the assessment roll, the collection of the excess will be enjoined only upon condition of plaintiff pay- ing the amount which is properly due.'^^ g^ ^ property owner in a city, who acquiesces in the making of street improvements in front of his premises, interposing no objection thereto while the work is in progress, can not be permitted after its completion and its acceptance by the city to enjoin the collection of the entire assessment levied for payment of the work, upon the ground that it was not performed in accord- ance with the contract, without having tendered the actual value of the improvement."^^ But where a property owner has made his protest against the improvement in anticipation of the proceeding, he may afterward enjoin the enforcement of an illegal assessment based upon such proceeding without first making tender or payment of the amount of benefit con- ferred.'^^ And where the whole plan or system upon which an assessment for improvements is made is illegal, so that the en- tire assessment falls and there is consequently no means of ascertaining what portion of the charge represents actual bene- fits received, no tender or payment is required."^^ § 552. When injunction allowed as an incident to other re- lief. While, as has already been shown, the existence of an adequate remedy at law generally operates as a complete bar to relief by injunction against illegal taxation, the jurisdic- tion may properly be exercised as an incident to other equit- able relief sought as the principal object of the action, not- withstanding the illegal tax complained of might be remedied 72 Mills V. Charleton, 29 Wis., "4 Ladd v. Spencer, 23 Ore., 193, 400. See Dean r. Borchsenius, 30 31 Pac, 474. Wis., 237. -!■> Norwood v. Baker, 172 U. S., 73 City of Evansville v. Pfisterer, 269, 19 Sup. Ct. Rep., 187; Bidwell 34 Tnd., 36. v. Huff, 103 Fed., 362; Zehnder v. Barber Asphalt Co., 106 Fed., 103. 528 INJUNCTIONS. [CIIAP. VIII. at law. For example, where the principal object of the action is to annul and set aside an unauthorized and fraudulent con- tract made by the officers of a municipality, if the facts shown are sufficient to warrant a court of equity in setting aside the contract at the suit of taxpayers, the court may as a sub- sidiary^ ground of relief enjoin a tax levied for the purpose of carrying the contract into effect, even though as to the tax alone there would be ample remedy at law. In such ease, the court having properly acquired jurisdiction for one purpose may proceed to administer full and complete relief for all pur- poses; and it will not annul the contract and at the same time permit the tax to be collected only to be recovered back by a multiplicity of suits, but will enjoin the tax as an incident to annulling the contract."*^ § 553. Tax upon business in city; license tax upon occupa- tions. An injunction has been allowed to prevent a sale of property in satisfaction of a license tax held to De unconsti- tutional.'^'^ And where persons are engaged in a particular business in a city, as the owners and keepers of a public stable, upon which they are taxed by a municipal ordinance, and as a necessary incident to their principal business they are en- gaged in a subordinate occupation, such as the carrying of passengers and baggage for hire, and the city authorities at- tempt to enforce a separate tax upon the subordinate business, it is held to be no abuse of discretion to grant an interlocutory injunction against the enforcement of the latter tax until the final hearing of the cause.'^^ But an injunction will not lie to prevent the enforcement of fines levied by a municipal court TO Peck V. School District No. 4, in Georgia it is lield that a tax 21 "Wis. 516. levied upon the sales of a particii- 77 Waters P. O. Co. v. City of lar commodity, such as cotton, in Little Rock, 39 Ark., 412. And violation of a statute of the state, see Banger's Appeal, 109 Pa. St., may be enjoined. Mayor v. Flour- 79, as to the right to restrain the noy, 65 Ga., 231. colloction of a tax upon occupa- 78 Mayor of Savannah v. Dehon- tions, for want of uniformity. And ey, 55 Ga., 33. CHAP. VIII.] AGAINST TAXES. 529 for non-payment of a municipal tax in the nature of a license upon trades or occupations, and to enjoin proceedings for the <3ollection of such tax, when the law under which the license is imposed is not in excess of legislative authority, and when no unjust discrimination has been made in the imposition of the tax upon different occupations."" § 554. Assessment for improving streets, when enjoined. An assessment levied upon lands as an entirety, which is properly chargeable only upon a portion of the premises, has been en- joined. Thus, where an assessment for improving streets was made a charge upon plaintiff' 's entire property, when only the front to the usual depth of lots was legally chargeable and Jiable to be assessed for the improvement, the collection of the assessment was enjoined, but without prejudice to the right of the city to collect the amount properly chargeable against plaintiff"s lands.^"^ § 555. Repeal of ordinance ; premature application ; munici- paJ election to vote tax. Equity will not interfere by injunc- tion with the collection of municipal taxes and assessments when no real or immediate necessity exists for relief. It will not, therefore, enjoin the enforcement of a city tax upon the ground of its illegality when the ordinance under which the tax was attempted to be imposed has been repealed.^i And when some of the complainants filing a bill to restrain the col- lection of a municipal tax show by the bill that they are not subject to the tax, since they do not come within the provi- sions of the city ordinance imposing it, but there is sufficient remedy at law for the parties thus aggrieved when an attempt is made to collect the tax, equity should not enjoin.^^ jvJqj, -^jjj the municipal authorities of a city be enjoined from holding an election under an act of legislature to submit to the voters ■?9 Blessing v. City of Galveston, «i Goodwin v. Mayor of Savan- 42 Tex., 6^1. nah, 53 Ga., 410. 80 Griswold v. Pelton, 34 Ohio S2 id. St., 482. And see Chamberlain v. Cleveland, 34 Ohio St., 551. 34 530 INJUNCTIONS. [chap, VIII. the question of whether a particular tax shall be levied, even though it be alleged that the act is unconstitutional, since such an injunction would be premature in advance of any actual levy of a tax, and the danger of a tax being levied is too remote to warrant relief in equity .^^ § 556. Assessments for pavements ajid improvements ; assess- ment based on frontage rule. As regards the question of equit- able relief against municipal assessments for public improve- ments, such as streets, roads, ditches and kindred improve- ments, relief by injunction is freely granted when the pro- ceedings of the municipal authorities are had under an un- constitutional law, or are otherwise wholly illegal and void, and hence in excess of the jurisdiction of such bodies, such cases being plainly distinguishable from cases of a mere ir- regularity in a proceeding where jurisdiction exists.^-' And where the assent of a majority of the property owners front- ing upon a street is required to authorize the paving of the street, it is held that without such assent the proceedings are void, and a court of equity has jurisdiction, upon the ap- plication of such owners as have not assented, to enjoin a sale of property for such paving.^^ So where the law requires the giving of notice to property owners of resolutions for pub- lic improvements, such requirement is jurisdictional in its character and the failure to give the notice constitutes ground for injunctive relief against a special assessment based upon the resolution.^^ And where a special assessment is wholly il- 83 Roudanez v. Mayor of New Or- 422, 64 N. W., 299, 65 N. W., 500; leans, 29 La. An., 271. Beaser v City of Ashland, 89 Wis., >*•* Teegarden v. Davis, 36 Ohio 28, 61 N. W., 77; Watkins v. Grif- St., 601; Citx of Fort Wayne v. fith, 59 Ark., 344, 27 S. W., 234. Shoaff, 106 Ind., 66, 5 N. E., 403; s-^- Ogden City r. Armstrong, 168 City of Terre Haute v. Mack, 139 U. S., 224, 18 Sup. Ct. Rep., 98; Ind., 99, 38 N. E., 468; Curry v. Holland ?'. Mayor, U Md., 186; Jones, 4 Del. Ch., 559; Hutchinson Bouldin v. Mayor, 15 Md., 18; Har- V. City of Omaha, 52 Neb., 345, 72 mon v. City of Omaha, 53 Neb., N. W., 218; Armstrong r. Ogden 164, 73 N. W., 671. City, 12 Utah, 476, 43 Pac, 119; ^<' .Joyce v. Barron, 67 Ohio St.. Dietz V. City of Neenah, 91 Wis., CHAP. VIII.] AGAINST TAXES. 531 legal and void as being based upon the front foot rule and therefore imposed without regard to the question of special benefits conferred, an injunction is the appropriate remedy to restrain the enforcement of the assessment.^'^ And in such case, where the rule or system of valuation thus fails, it is not necessary that the property owner should show that the amount charged against his property exceeds the benefits actually accruing or to tender what appears to be the amount of benefit actually conferred.^^ So where an assessment for the construction of public roads is entirely void because of the omission by the assessors of certain lands from their list, the tax may be enjoined at the suit of property owners affected thereby.^^ But the collection of an assessment for paving and improving streets will not be enjoined upon the ground that such paving is an interference with the rights and franchises of a plank-road company having the right to use the street, the injunction being sought, not by the company, but by an adjacent lot owner.'^o Where, however, property owners are about to be damaged by the collection of assessments upon their property for purposes of improvement by an assumed corporation, such as a drainage company, which has never been legally incorporated, although claiming to act in a corporate capacity, they may be allow^ed an injuntion against such as- sessment, the action being brought against the pretended cor- 264, 65 N. E., 1001; Ives v. Irey, ment therefor was based upon the 51 Neb.. 136, 70 N. W., 961. frontage rule. S7 Norwood v. Baker, 172 U. S., ss Norwood v. Baker, 172 U. S., 269, 293, 19 Sup. Ct. Rep., 187; 269, 19 Sup. Ct. Rep., 187; Bidwell Cowley V. City of Spokane, 99 v. Huff, 103 Fed., 362; Zehnder v. Fed., 840; Bidwell v. Huff, 103 Barber Asphalt Co., 106 Fed., 103. Fed., 362; Zehnder v. Barber As- **» Robbins i\ Sand Creek Turn- phalt Co., 106 Fed., 103. In McKee pike Co., 34 Ind., 461; Greencastle V. Town of Pendleton, 154 Ind., & Bowling Green Turnpike Co. v. 652, 57 N. E., 532, the injunction Albin, 34 Ind., 554; Forgey v. ran against the town authorities Northern Gravel Road Co., 37 Ind. restraining them from entering 118. See Pendleton Co. r. Bar- into a contract for the improve- nard, 40 Ind., 146. ment of a street where the assess- oo Bagg v. Detroit, 5 Mich., 336. 532 INJUNCTIONS. [chap. VIII.' poration by its name as siich.^^ But in an action to restrain the sale of lands for an unpaid assessment for improving a street, upon the ground of irregularities in imposing the assess- ment, the burden of proof rests upon the plaintiff, and no pre- sumption will be indulged against the validity or legality of the acts of the municipal authorities.*^- But a property owner will not be allowed to retain the benefit of a ijublic improve- ment, such as curbing a street, and after its completion en- join the collection of the assessment because of irregularities and because of an excessive assessment, without tendering the -amount for which his property is justly liable.^^ § 557. Municipal bonds illegally issued. When an injunc- tion is sought to restrain the collection of a tax levied for the payment of municipal bonds, but the only evidence before the court as to the illegality of the bonds is -an averment in the bill that they were illegally issued, and that they were, in fact, never issued by the township by which they purport to be issued, it is not error to refuse a preliminary injunc- tion, since the court can not be fully advised as to the il- legality of the bonds upon so general an averment and with- out further evidence.^^ Nor will the collection of a tax for the payment of warrants issued for an indebtedness against .a county be enjoined upon the ground of the illegality of such warrants, when the holders of the warrants are not parties to the suit.^^ § 558. Debt due from city can not be set off against tax. Equity will not enjoin a municipal corporation from collecting taxes due from a citizen who occupies the relation of creditor toward the corporation until the debt due to the taxpayer from the municipality is paid, since the courts will not permit ni Newton County Draining Cook v. City of Racine, 49 Wis., -Company v. Nofsinger, 43 Ind., 566. 243. See, ante, § 551. i):i Tingue v. Village of Port i" Olmstead v. Koester, 14 Kan., Chester, 101 N. Y., 294, 4 N. E. 625. 463. i»:i Barker v. City of Omaha, 16 i>"> Beck r. Allen, 58 Miss., 143. Neb., 269, 20 N. W., 382. See also CHAP. VIII.] AGAINST TAXES. 53;^ a debt to be thus set off against a tax due from the citizen. And the reason for the rule is found in the fact that a tax due from a taxpayer is not a mere debt or matter of contract in the ordinary understanding of the term, but rather a pub- lic burden in the nature of an obligation due from the citi- zen for the support of the government, and to permit a tax to be thus subjected to the doctrine of set-off would necessariljf be subversive of the power of government. ^'^ § 559. Effect of injunction against paying interest on municipal bonds. A preliminary injunction granted against county officers to restrain them from paying any interest upon certain bonds or obligations of the county does not have the effect of rendering invalid a tax levied to pay the interest upon such bonds. Such an injunction will not, therefore,, operate to prevent the proper officers of the county from col- lecting the tax already levied.^''' § 560. Advertising for bids. Although a city charter pro- vides that no contracts beyond a certain sum shall be entered into by the city except with the lowest bidder, after advertis- ing, an injunction will not lie at the suit of adjacent lot own- ers to restrain the enforcement of a tax for paving streets: with a patented pavement which is the exclusive property of one firm.^^ Nor will the fact that the city authorities have- not complied with their charter in ordering street improvements and in advertising for bids warrant an injunction in favor of an adjacent lot owne? before any taxes have been assessed or levied, or any injuries sustained.^'-* Where, however, an assessment is imposed for street improvements, and, in dis- regard of an ordinance requiring advertisement for proposals, 06 Finnegan r. City of Fernan- or, 33 N. Y., 309. And see dis- dina, 15 Fla., 379; Scobey v. Deca- senting opinion of Dixon, C. J., iu tur County, 72 Ind., 551. Dean v. Charlton, 23 Wis., 590. But OT L. L. & G. R. Co. V. Clemmans, see, contra. Dean r. Charlton, 23. 14 Kan., 82. Wis., 590. 38 Hobart i\ Detroit, 17 Mich., oo Ballard v. Appleton, 26 Wis. 246; Harlem Gas Light Co. v. May- 67. 534 INJUXCTIOXS. CIIAl'. VIII. in three newspapers, advertisement is had in but one, a tax- payer is entitled to relief by injunction, in the absence of any remedy by appeal from the action of the municipal authorities.^ § 560 a. Fraud as ground for relief. Fraudulent conduct upon the part of municipal authorities whereby the property owner is deprived of substantial rights in the matter of special assessments constitutes ground for equitable relief against the enforcement of the assessment. Where, therefore, the prop- erty owner is induced by agreement with the city authorities to withdraw his objections to the confirmation of an assess- ment, the enforcement of the judgment of confirmation con- trary to such agreement will be enjoined.- § 560 h. Irregularities in organization of municipal corpora- tion no ground for injunction. Defects or irregularities in the organization of a municipal corporation constitute no ground for equitable interference against the enforcement of taxes or assessments imposed by it. The rule is founded upon the neces- sity of avoiding the intolerable conditions which would result if the validity of a tax could be successfully impeached upon fiuch grounds. Where, therefore, the corporation has a de facto existence and the tax is otherwise a valid charge against the taxpayer and his property, the legality of the corporate organization can not thus be collaterally attacked and the re- lief will accordingly be denied.^ 1 Mayor v. Johnson, 62 Md., 225. s Burnham v. Rogers, 167 Mo. 2 Dempster v. Chicago, 175 111., 17, 66 S. W., 970. 278, 51 N. E., 710. CHAP. Vlll.J AGAINST TAXES. 535 V. Municipal-Aid Taxes. § 561. Illegal aid tax enjoined; illustrations. 562. Illegality of election. 563. Fraud and mistake. 564. Acquiescence of taxpayer an estoppel. 565. Regularity of election. 566. Consolidation of railroads; insolvency of company; sale of road. 567. Disqualification of municipal ofBcers no ground for injunction. 568. Valid defense to bonds must be shown. 569. Injunction will not be allowed when bonds are legal; other- wise when bonds void. §561. Illegal aid tax enjoined; illustrations. The question of municipal aid to public enterprises of various kinds, espe- cially in the construction of railways, has given rise to fre- quent applications for preventive relief in equity. The gen- eral subject of the nature and extent of relief by injunction against municipal-aid subscriptions is fully discussed in another part of this treatise,^ and it is only proposed here to present such principles as govern the courts in determining appli- cations for relief by injunction against taxation imposed in furtherance of such subscriptions. And it may be asserted as a general doctrine applicable to all cases where it is sought to enjoin the levying or collection of taxes in payment of sub- scriptions or donations made by a municipal = corporation in aid of the construction of railways, or other kindred enter- prises, that in the absence of some valid and constitutional expression of the legislative power authorizing such subscrip- tion, and the necessary taxation with which to meet it, the taxpayer may properly invoke the aid of equity by injunc- tion in his behalf.- Thus, a taxpayer may enjoin the collection J See § 1282, post, et seq. houn, 100 111., 392; Hays v. Dowis, 2 Flack V. Hughes, 67 111., 384; 75 Mo., 250. But see, contra. State Foster v. Kenosha, 12 Wis., 616; v. Parkville, 32 Mo., 496, where it Supervisors of Livingston Co. v. is held that the issuing of bonds Weider, 64 111., 427; Marshall v. and the levying and collecting of a Silliman, 61 111., 218; Rutz l: Cal- tax, in aid of subscriptions to a 536 INJUXCTIOXS. [CIIAP. VIII. of a tax levied upon his property for the payment of interest on bonds of the township issued pursuant to a vote of the citi- zens in aid of a subscription to a railway company, in the absence of any law authorizing such election or vote.^ And where a city attempts under a provision in its charter to levy a tax in payment of a subscription to the capital stock of a railway company, it is proper to enjoin the enforcement of the tax upon the ground that the provision of the charter under Avhich the proceedings were had is unconstitutional, and the tax, therefore, unauthorized.^ So where the legislature of the state has exceeded its authority under the constitution in attempting to authorize subscriptions by a county in aid of the location of a state reform school, and a tax has been levied by such board and collected for the payment of in- terest upon bonds of the county subscribed in aid of the under- taking, the county treasurer may be enjoined from applying- the taxes thus collected in payment of the interest upon suck bonds.^ And where a township votes in favor of a subscrip- tion to a railway company in excess of the amount authorized by law to be voted, and it is sought to cure the illegality by an act of legislature attempting to legalize such election, but railroad by a county court, will in disregard of the state law in not be enjoined on the ground of levying the tax, although they are want of jurisdiction in the court commanded so to do by the federal to take such proceeding without a court, since they must conform to vote of the people, since a sale of the statute as to the method of the taxpayer's property under imposing the tax. State v. Hager, such proceedings would not divest 91 Mo., 452. But see Gaines v. the owner of his title, and he could Springer, 46 Ark., 502, where it is maintain an action at law for the held that a state court will not en- property, and for damages for its join the collection of a tax which detention. But it is also held in is levied pursuant to a mandamus Missouri that an injunction will granted by a federal court to corn- lie, at the suit of the state, to pel the payment of a judgment restrain county officers from levy- against a county. Ing a tax in payment of judg- 3 Flack r. Hughes, 67 111., 384. ments rendered by a United States * Foster r. Kenosha, 12 Wis., 616. court upon municipal-aid coupons, '■ Supervisors of Livingston Co. when such officers are proceeding t). Welder, 64 111., 427. CHAP. VIII.] AGAINST TAXES. 53T the curative act itself is held to be unconstitutional, a court of equity may enjoin the collection of a tax to pay interest upon bonds of the township issued upon such void subscrip- tion.*^ § 562. Illegality of election. It is also a noticeable feature of the subject under consideration, that the courts are usually inclined to hold municipalities to a strict adherence to the con- ditions required by the law under which the municipal aid is voted, and a want of compliance with some substantial re- quirement of the law as regards the notice of the election or the manner of submitting the proposition to the electors will warrant relief by injunction against a tax levied in aid of such subscription.'^ For example, a failure to give notice, as re- quired by law, of the holding of an election to vote upon a proposition to subscribe to the capital stock of a plank-road company, constitutes sufficient ground for enjoining the collec- tion of a tax levied in aid of a subscription by the township to such stock.^ So where a statute authorizes a municipal subscription in aid of a railway upon a vote of the citizens, but the vote is submitted by the county authorities to the people upon a proposition to appropriate an entire sum to two different railways, instead of a proposition to appropriate to each road separately, a tax levied in pursuance of such vote being regarded as illegal and void, its collection may be en- joined.*^ And the fact that the board of county commissioners, have declared the result of the election to be in favor of the subscription does not oust the jurisdiction of equity, or pre- c Marshall v. Silliman, 61 111., 2 S. E., 361. See also Garrigus v.^ 218. Commissioners of Parke Co., 39 ' Bronenberg r. Commissioners Ind., 66. of Madison Co., 41 Ind., 502; Fin- « McPike v. Pen, 51 Mo., 63. ney i:. Lamb, 54 Ind., 1; McPike o Bronenberg v. Commissioners V. Pen, 51 Mo., 63; McDowell v. of Madison Co., 41 Ind., 502; Fin- Massachusetts & S. C. Co., 96 N. ney r. Lamb, 54 Ind., 1. See also C, 514, 2 S. E., 351; Gofor'.h r. Garrigus v. Commissioners of Rutherford R. C. Co., 96 N. C, 535, Parke Co., 39 Ind., 66. 538 INJUXCTIOXS. [chap. VIII. vent the court from inquiring into the legality and regularity 3f the election.^*' § 563. Fraud and mistake. The jurisdiction of equity by in- junction in the class of cases under consideration may also be exercised upon the ground of fraud, that being a favorite ground of equitable jurisdiction. Thus, fraudulent represen- tations made by a railway company to the electors of a town- ship, for the purpose of inducing them to vote a tax in aid of the construction of a railroad, afford sufficient reason for an- joining the collection of the tax.^i j^^^ [j^ g^^^j^ ^^gg^ ^j^g fact that the railway company has expended labor and money upon the construction of its road will not estop taxpayers from relief in equity upon the ground of such fraudulent rep- resentations, when the fraud was not discovered until after the work was performed.^- The relief may also be allowed upon the ground of mistake ; and when the question of a tax in aid of a railway has been submitted to a vote of the citizens of a town, but the tax is not voted and the judges of the elec- tion so declare, but by mistake of their clerk the vote is cer- tified to the county authorities as in favor of the tax, its col- lection may be enjoined.^ ^ § 564. Acquiescence of taxpayer an estoppel. A taxpayer may, however, be estopped by his own conduct from obtaining relief by injunction against the collection of a tax levied in aid of a municipal subscription or donation. Thus, where a municipal tax is voted in aid of a railway, and the work of constructing the road is completed upon the faith of the tax thus voted, a taxpayer who has remained silent until all the benefits which would accrue to him by the construction of the road are secured will not then be permitted to enjoin the collection of the tax.'* "> McDowell V. Massachusetts & ^ Sinnett v. Moles, 38 Iowa, 25. S. C. Co., 96 N. C, 514, 2 S. E., 'Md. 351; Goforth v. Rutherford R. C. i:' Cat tell v. Lowry, 45 Iowa, 478. Co., 96 N. C, 535, 2 S. E., 361. n Lamb v. B., C. R. & M. R. Co., CHAP. VIII.] AGAINST TAXES. 539 § 565. Regularity of election. An injunction has been re- fused against the enforcement of a tax levied for the pay- ment of a municipal subscription in aid of the construction of a railroad bridge, when the election to take the sense of the voters had been properly held and they had voted the subscrip- tion.^'^ And where a statute authorized the question of taxa- tion in aid of railway enterprises to be submitted to a vote of a town, upon presentation to the trustees of the town of a petition signed by one-third of the resident taxpayers, but the bill to restrain the enforcement of the tax only alleged that no petition was signed by one-third of the taxpayers, being silent as to the question of their residence, it was held that no sufficient ground for an injunction was shown.^^ And in Indiana it is held that when the law authorizes the munici- pal aid to be given by a board of county officers, upon the petition of a given number of freeholders, the action of such board in passing upon the sufficiency of the petition can be challenged only directly by appeal, and can not be called in question collaterally in a suit to enjoin a tax levied for pay- ment of the subscription.^'^ §566. Consolidation of railroads; insolvency of company; sale of road. When municipal bonds have been issued under authority conferred by statute, as a donation from a city in aid of a railway company, and have passed into the hands of innocent purchasers, equity will not enjoin a tax levied to meet the interest upon the bonds merely because of the con- solidation of the railroad to which the aid was granted with another road, such consolidation being within the corporate power, and no irregularity being shown therein.^^ Nor will the 39 Iowa, 333. And see Commis- 359; S. C. sul) nom. Reynolds /". sioners v. Hinchman, 31 Kan., 729, Faris, 80 Ind., 14; Board of Com- 3 Pac, 504. missioners r. Hall, 70 Ind., 469. 15 Harcourt v. Good, 39 Tex., 455. And see Goddard v. Stockm?.n, 74 16 Zorger v. Township of Rapids, Ind., 400. 36 Iowa, 175. I's City of Mount Vernon r. Hov- 17 Faris v. Reynolds, 70 Ind., ey, 52 Ind., 563. 540 INJUNCTIONS. [CHAr. VIII. relief be granted because of the insolveuey of the railway com- pany and its alleged inability to complete its road.^'^ But the writ has been granted to restrain the collection of a tax voted in aid of a railway which has transferred its property to another company, although it was known that such transfer was contemplated when the tax was voted.^^ § 567. Disqualification of municipal officers no ground for injunction. Upon a bill to enjoin the collection of a tax levied by municipal authorities for the payment of principal and interest upon bonds issued pursuant to legislative authority in aid of the construction of a railroad, the fact that cer- tain members of the municipal government issuing the bonds were disqualified from holding office afi'ords no ground for extending equitable relief; since the acts of such officers are to be regarded as those of officers de facto, and therefore valid and binding until their title to the office is adjudged invalid.^i § 568. Valid defense to bonds must be shown. Equity will not interfere to restrain the collection of a tax for the pay- ment of bonds issued by a city in aid of a railway, when it is not shown that the city has a valid legal defense to the bonds in the hands of the present holders.^- And although the case presented might be sufficient to warrant an injunc- tion against issuing the bonds if not already issued, it does not necessarily follow that the relief will be awarded by re- straining the collection of taxes for their payment after they have been put in circulation.-^ § 569. Injunction will not be allowed when bonds are legal ; otherwise when bonds void. Where railroad bonds have been subscribed and issued under an act of legislature which is constitutional, and the conditions of the act have been fully IS Wilson V. Board of Commis- -^i Lockhart i\ City of Troy, 4S sioners, 68 Ind., GOT. Ala., 579. 2" Blunt V. Carpenter, G8 Iowa, -'- Wilkinson v. City of Peru, 61 265, 26 N. W., 483. Ind., 1. 23 Id. •CHAP. VIII.] AGAINST TAXES. 541 complied with, and the bonds have been issued and have passed into the hands of bona fide holders for value, a court of equity will not enjoin the municipal authorities from rais- ing the necessary funds by taxation for the payment of in- terest upon such bonds.-* And when a judgment establish- ing the validity of the bonds has been obtained against the municipality and taxes have been levied for the payment of interest, such judgment will be held conclusive upon taxpay- ers, and they will not be permitted to enjoin the collection of the tax.25 If^ however, the bonds are totally void, as where issued by a supposed municipality which had no corporate existence either de jure or de facto, a taxpayer may restrain the enforcement of a tax levied for the purpose of paying the principal and interest of such obligations.-'^ 24 Cumines v. Supervisors, 63 26 Morton v. Carlin, 51 Neb., 202, Barb., 287. 70 N. W., 966. 25 Commissioners v. Hinchman, 31 Kan., 729. 542 INJUNCTIONS. [chap. VIII. VI. Bounties. § 570. Bounties to soldiers unauthorized by legislature will be en- joined. 571. Statute must be strictly complied with. 572. Parties; dissolution. § 570. Bounties to soldiers unauthorized by legislature will be enjoined. A branch of the jurisdiction of equity in re- straint of taxes of modern origin is that which is exercised in eases of taxation for the payment of bounties to soldiers, or for the purpose of freeing a town or city from a draft of its citizens for military service. The general rule as regards mu- nicipal taxes for such purposes is, that where the municipal authorities are proceeding without legislative sanction, an in- junction wall be allowed to restrain such misappropriation of the public funds.^ The ground for relief in this class of cases is that the remedy at law by suit to recover back the tax paid is inadequate.^ Where, however, a town is authorized by act of legislature to levy a tax for relieving its inhabitants from draft, the collection of the tax will not be enjoined, but the persons aggrieved will be left to pursue their remedy at law.^ Even where a town originally had no authorit}' to vote such a tax, if a subsequent act of the legislature has author- ized it to ratify and confirm such vote, and this has been done, an injunction will not be allowed.-* § 571. Statute must be strictly complied with. But, al- though equity Avill not interfere with a bounty tax authorized by act of legislature, yet the terms of the statute must be 1 Webster v. Harwinton, 32 •' Hoagland v. Delaware, 2 C. E. Conn., 131; New London v. Brain- Green, 106. ard, 22 Conn., 552; Fiske r. Haz- ^ Baldwin r. North Branford, 32 ard, 7 R. I., 438; Drake r. Phillips, Conn., 47; Booth r. Woodbury, lb., 40 111., 388. But see, contra, Trues- 118. And see as to dissolution of dell's Appeal, 58 Pa. St., 148. the injunction under such a stat- - Webster v. Harwinton, 32 ute, Bartholomew v. Harwinton, Conn., 1.31. 33 Conn., 408. CHAP. Vlll.] AGAINST TAXES. 543 complied with in all essential points. And where a tax is voted the next day after the passage of the act authorizing it and before the requisite notice prescribed by the statute could possibly be given, such a notice being indispensable to the validity of the tax, its collection will be enjoined.^ And where the quota of the town is already filled at the time of the pass- age of the law, and there is no reasonable probability of more soldiers being required, such a tax is unauthorized and will be restrained.*^ So where by the terms of a city charter the real estate and personal property of its inhabitants are ex- empt from taxation for county purposes, a bill in chancery lies to enjoin the collection of a bounty tax sought to be imposed by the county, even though the tax be authorized by the act of legislature.''' §572, Parties; dissolution. It is held that an illegal tax for bounty purposes will not be restrained where the complain- ant files the bill only in his individual behalf, and where it does not appear that he has not an adequate remedy at law, or that the proceedings will be productive of irreparable injury, or will lead to a multiplicity of suits, or a cloud upon title. ^ And a perpetual injunction granted against the payment of a bounty voted by a town meeting to drafted men or their substitutes may be dissolved upon the passage of an act of legislature legalizing such vote." And in the absence of any allegation of fraud the collection of a tax in payment of a bounty for the destruction of wolves will not be restrained, where such bounty has been authorized by the legislature and by vote of the town.^*^ 5 Vieley v. Thompson, 44 111., 9. » Bartholomew t\ Harwinton, 33 6 Id. Conn., 408. 7 Supervisors v. Campbell, 42 lo Mooers v. Smedley, 6 Johns. 111., 490. Ch., 28. 8 Scribner v, Allen, 12 Minn., 148. 544 INJUNCTIONS. [chap. VIII, VII. Parties. § 573. General principles governing joinder of parties. 574. Different taxpayers may unite as plaintiffs. 575. The doctrine further discussed. 576. Rule as to joinder of defendants. 577. Railroad tax, different counties joined; school district; pre- tended corporation. 577a. Holder of corporate bonds, secured by mortgage, when not proper party complainant. § 573. General principles governing joinder of parties. The question of who arc proper parties plaintiff and defendant in an action to restrain the enforcement or collection of a tax is one of much practical importance, since in a case otherwise proper for equitable relief the court will refuse to interfere un- less the proper parties are before it. It may be said, generally, that one who does not own real estate which it is sought to sub- ject to a tax, and who is not, therefore, liable to the tax, will not be allowed the aid of an injunction to prevent its enforce- ment.^ And an action to enjoin a tax should be brought by the taxpayers themselves who are affected by it, and a town- ship can not maintain a bill for an injunction against the col- lection of taxes levied upon property of individual citizens of such township.2 So an incorporated board of education can not maintain a bill to enjoin the collection of illegal taxes levied for school purposes.^ Nor can a city which has no prop- erty which is subject to an illegal tax join in a bill brought hy taxpayers to enjoin its collection.-* So equity will not entertain an action by a municipal corporation to test the legal- ity of a tax levied by another municipality by enjoining its collection, relief by injunction against illegal taxes being ex- 1 McMahon v. Welsh, 11 Kan., -^ Board of Education r. Guy, 64 280. Ohio St., 434, 60 N. E., 573. 2 Center Township v. Hunt, 16 + Stiles v. City of Guthrie, 3 Kan., 430. Okla., 26, 41 Pac, 383. CHAP. VIII.] AGAIXST TAXES. 545 tended only in behalf of taxpayers.^ Nor can a state maintain an action to restrain the collection of a tax levied for the payment of municipal bonds, upon the ground that the bonds are illegal and ultra vires on the part of the municipality issuing them; since the state as such has no direct interest in the matter.^ And when a tax is illegally assessed upon prop- erty beyond the boundaries of the municipality making the assessment, the state is not a proper party plaintiff to seek relief by injunction, but the taxpayers aggrieved will be left to pursue their remedy in their own behalf."^ So after the death of the plaintiff in a suit brought to restrain the sale of land for taxes, his personal representative, having, as such, no interest in the subject-matter of the litigation, can not main- tain the action.^ The governing rule, therefore, resting alike upon principle and authority, is that the action to enjoin the collection of a tax should be brought by a taxpayer whose property and interests are directly and immediately affected by the tax which it is sought to enjoin, the same degree of interest being requisite as in all other cases where the ex- traordinary aid of equity by injunction is invoked. § 574. Different taxpayers may unite as plaintiffs. While there is not wanting authority to the eft'ect that individual taxpayers whose property is separately assessed do not have such a community of interest as to render it proper to join them as complainants, even upon the ground of preventing a multiplicity of suits,^ the decided weight of authority is clearly averse to this doctrine. And it may be asserted as a general rule governing the joinder of parties complainant in this class of actions, that different property owners and taxpayers, having separate and distinct interests as regards the owner- ship of property subjected to the burden of a common tax, but 5 Nunda v. Chrystal Lake, 79 111., ^ Ewlng v. Board of Education, 311. 72 Mo., 436. 6 State V. McLaughlin, 15 Kan., s Driver v. Hays, 51 Ark., 82, 9 228. S. W., 853. 9 Harkness v. Board of Public 35 546 INJUNCTIONS. [chap. VIII. suing for themselves and all others similarly interested, may unite in an action to obtain relief by injunction against the collection of such tax; since, although their titles are several and distinct, they nevertheless have such a common interest in the subject-matter of the litigation as to render them proper co-plaintiffs in a proceeding to obtain relief from the burden common to them all.^^ And where an assessment or tax is affected by such illegalities as to justify a court of equity in extending preventive relief by injunction, different property holders and taxpayers who are subjected to the burden of such illegal tax may bring their action for relief in behalf of themselves and of all others similarly situated, and whose as- sessments remain unpaid.^ ^ So where an assessment levied for the construction of public roads is void as to all owners of property affected thereby, it is competent for different own- ers in severalty to join in an action for an injunction.^- And Works, 1 McArthur, 121; Lewis v. Eshleman, 57 Iowa, 633, 11 N. W., 617. See also Hudson v. Commis- sioners of Atchison Co., 12 Kan., 140, where it is held that different persons holding shares of stock severally in an incorporated com- pany, with no joint interest, can not unite in an action to enjoin the collection of an alleged illegal tax upon such shares, but must sever in the action. 10 Bristol v. Johnson, 34 Mich., 123; Carlton v. Newman, 77 Me., 408, 1 Atl., 194; Wood v. Draper, 24 Barb., 187; S. C, 4 Ab. Pr., 322; McClung V. Livesay, 7 West Va., 329; Brandirff ??. Harrison Co., 50 Iowa, 164; Robbins r. Sand Creek Turnpike Co., 34 Ind., 461; Green- castle & Bowling Green Turnpike Co. V. Albin, 34 Ind., 554; Forgey V. Northern Gravel Road Co., 37 Ind.. 118; Kennedy r. City of Troy, 14 Hun, 308; Glenn v. Waddel, 23 Ohio St., 605. See also Scofleld V. City of Lansing, 17 Mich., 437; Morris v. Cummings, 91 Tex., 618, 45 S. W., 383; Stiles v. City of Guthrie, 3 Okla., 26, 41 Pac, 383. n Kennedy v. City of Troy, 14 Hun, 308; Wood v. Draper, 24 Barb., 187; S. C, 4 Ab. Pr., 322; McClung V. Livesay, 7 West Va., 329; Carlton v. Newman, 77 Me., 408, 1 Atl., 194, The action should be brought by complainants as tax- payers suing for themselves and all others similarly situated, and it is held that it can not be main- tained unless so brought. Williams V. County Court, 26 West Va., 488. But see Supervisors of DuPage Co. V. Jenks, 65 111., 275; Bridge Com- pany V. Commissioners of Wyan- dotte Co., 10 Kan., 326. li! Robbins v. Sand Creek Turn- pike Co., 34 Ind., 461; Greencastle CUAP. VIII.] AGAINST TAXES. 547 different taxpayers whose lands are illegally assessed may unite in a proceeding for an injunction, when the rights of all are dependent upon the same question.*^ And where a tax, if levied and extended, will be illegal and void, a single taxpayer may have relief against the entire tax. And in such case it is not necessary that the plaintiff should in ex- press terms purport to be acting upon behalf of all other tax- payers having individual interests of the same character if such is the necessary effect of the suit.^^ § 575. The doctrine further discussed. Notwithstanding the general doctrine as thus stated, recognizing the right of dif- ferent taxpayers affected by a common burden of illegal taxa- tion to unite in an application for equitable relief, it is held that one taxpayer can not maintain a bill to enjoin an en- tire tax imposed upon other persons as well as himself, and can not maintain such an action as to other taxpayers for whom he is not acting as agent, trustee, or in some other representative capacity.^ ^ It has also been held that equity will not entertain a bill by one taxpayer to enjoin the levy- ing of a tax against other persons not joined as plaintiffs in the suit, and that a tax will not be enjoined in behalf of one who does not himself seek to have it enjoined.^^ It is diffi- cult, however, to reconcile such rulings of the courts with the doctrine of the preceding section, which has not alone the & Bowling Green Turnpike Co. v. several. Gilmore v. Norton, 10 Albin, 34 Ind., 554; Forgey v. Kan., 491; Gilmore v. Fox, 10 Kan., Northern Gravel Road Co., 37 Ind., 509. 118. See Pendleton Co. v. Barnard, i* Knopf v. First National Bank, 40 Ind., 146. 173 111., 331, 50 N. E., 660. 13 Glenn v. Waddel, 23 Ohio St., is Supervisors of Du Page Co. t?. 605. And in Kansas it is held, Jenks, 65 111., 275, distinguished under the statutes of the state, and explained in Knopf v. First that any number of persons whose National Bank, 173 111., 331, 50 N. property is affected by an illegal E., 660. tax or assessment may unite as i^ Bridge Company v. Commis- plaintiffs in an action to enjoin the sioners of Wyandotte Co., 10 Kan., collection of such tax or assess- 326; Stiles v. City of Guthrie, 3 ment, although their interests are Okla., 26, 41 Pac, 383. 548 INJUNCTIONS. [CIIAP. VIII. mere weight of authority in its support, but the established principles of modern equity pleading as well. For, while the ancient rules of pleading in equity required all parties de- siring relief to be before the court, the modern practice, which may be said to have originated and become well established during the long chancellorship of Lord Eldon, only requires sufficient of the parties to fairly litigate the right to be be- fore the court. And where the parties are numerous the prac- tice in equit}' is well established of permitting one or more persons to file a bill in behalf of all others in like interest or similarly situated to obtain the desired relief in behalf of all; and no satisfactory reason is perceived why bills to en> join the enforcement of taxes should constitute an exception to a doctrine so well established. It is held, however, that a private taxpayer, who suffers no especial grievance by a tax imposed, can not assume on behalf of the public to restrain the proceedings.^'^ And the issuing of a tax deed will not be enjoined at the suit of one who fails to show any interest in the lands in question.^^ § 576. Rule as to joinder of defendants. Upon the question of who are proper parties defendant to an action to restrain the collection of a tax, there is less room for difficulty in prac- tice, the bill being usually directed against the officers by whom the tax is being levied or collected. In cases of munici- pal taxation, as where a tax for local improvements is levied by a city, and the tax when collected will belong to the city, it should be joined as a party defendant in an action to en- join the tax.^'' So in a bill to enjoin a county collector from selling real estate under a judgment for a delinquent special assessment levied by a city, where the regularity and validity of the judgment and the acts of the officials entrusted with the collection of the tax are not questioned, but the right to '7 Miller r. Grandy, 13 Mich., '>< Johnson v. Brett, 64 Iowa, 162, 540. 19 N. W., 895. i» Gilmore v. Fox, 10 Kan., 509. CHAP. VIII.] AGAINST TAXES. 549 the relief is based upon acts and omissions upon the part of the city authorities which invalidate the assessment, the city- is a necessary party to the injunction bill and it is therefore erroneous to deny its motion to be made a party defendant.^** So, also, where it is sought to enjoin the extension of a tax levied for park purposes by a board of park commissioners, the latter are necessary parties to the proceeding and it is therefore error to proceed without them.^i And in a suit to restrain the city and county authorities from levying a tax for the payment of interest upon certain city bonds alleged to be invalid, the holders of the bonds are necessary parties.22 And it has even been held that in a suit to enjoin a county treasurer and sheriff from enforcing a personal property tax, the board of county commissioners must be joined.^^ The true test, how^ever, in all cases would seem to be to make such 20 Smith r. Kochersperger, 173 tended beyond the case of a single 111., 201, 50 N. E., 187; Heinroth tax levy made by a single corpor- V. Kochersperger, 173 111., 205, 50 ate taxing body and that it would N. E., 171. not require that where an injunc- 21 Knopf V. Kochersperger, 173 tion is sought to restrain the col- Ill.. 331, 50 N. E., 660; Knopf v. lection of a general tax in which Chicago Real Estate Board, 173 are includea many items levied by 111., 196, 50 N. E., 658. In the numerous taxing municipalities, first of these cases, the park com- such taxing bodies should be join- missioners made a motion to be ed as defendants where they are admitted as parties defendant but properly represented by the muni- the motion was denied by the cipal officers entrusted with the court. Upon an appeal from a extension or collection of the tax. decree granting a final injunction. In Knopf v. Kochersperger, supra, the court did not direct the dis- the court say: "Here was a sin- missal of the bill but reversed and gle corporate authority attempting remanded to the lower court with to exercise a power by the levy leave to the complainant, upon of a tax, and there was no diffi- payment of all costs, to make the culty in making the commission- park board defendants, and with ers defendants. This decision is instructions to that court, if this only intended to apply to such a should not be done, to dismiss the case." bill at complainant's costs. It is 22 city of Anthony v. State, 49 believed that the rule as announc- Kan., 246, 30 Pac, 488. ed in the text should not be ex- 23 Ba Som r. Nation, 63 Kan., 550 INJUNCTION'S. [t'lIAl". VIIT. parties defendant as are necessary to a proper solution of the questions at issue. And when it is sought to restrain the officers of a town from the collection of unpaid taxes, it is not necessary to join as defendants the officers of the county, when a complete determination of the questions involved may be had without them.-^ §577. Railroad tax, different counties joined; school dis- trict; pretended corporation. When the action is brought by a railway company to enjoin the collection of a tax levied upon its lands, it is proper to join as defendants the different counties through which the railroad runs when the question upon which the case turns is common to them all.-^ And upon a bill brought against a county treasurer to restrain him from collecting a tax levied for the payment of a school district bond, the district is a necessary party defendant, and in such case it is error to overrule a demurrer for want of proper parties.-*^ And when it is sought to enjoin an assessment levied for purposes of improvement by a pretended corpora- tion, such as a drainage company, which is not legally in- corporated, the action is properly brought against such as- sumed corporation in its corporate name as defendant.-^ § 577 a. Holder of corporate bonds, secured by mortgage, when not proper party complainant. The holder of corporate bonds secured by mortgage upon property of the corpora- tion can not enjoin the collection of a tax assessed against the corporate property where he fails to show that he is either the mortgagee or that the legal holder of the mortgage has refused to act; and in such case the holder of the mortgage should be made a party defendant.-^ 247, 65 Pac, 226; Shearer v. Mur- also Voss r. Union School District, phy, 63 Kan., 537, 66 Pac, 240. 18 Kan., 467. •-;4 Milwaukee Iron Company v. 27 Newton County Drainage Town of Hubbard. 29 Wis., 51. Company v. Nofsinger, 43 Ind., 566. ar. Union Pacific R. Co., v. Mc- '^^ Bayles r. Dunn, 54 C. C. A., Shane, 3 Dill.. 303. 549, 116 Fed., 185. ■-i«Hays '•. Hill, 17 Kan.. 360. See CHAPTER IX. OF INJUNCTIONS PERTAINING TO STREETS AND HIGHWAYS. § 578. Taking property for road or street without compensation en- joined. 579. Statutory or legal remedy must be first exhausted. 580. Injunction allowed when legal remedy inadequate. 581. Effect of contract with property owner. 582. Injunction refused when legal tribunal has acted. 583. Effect of pending appeal; failure to award damages to railway, 584. Removal of fences; quarrying stone. 585. Effect of tender of damages. 586. Duration of injunction; irreparable injury must be shown. 587. Municipal control over streets rarely interfered with; changing grade of street. 588. The same. 589. Laying railway tracks in streets. 589a. Elevated railroad in street; hack stands. 589&. Electric railroad in street; the rule in New York. 589c. Frontage consent 590. Injunction pending suit to test legal right; insolvency of de- fendant. 591. Apprehensions of future injury, when insuflBcient. 592. Opening of public highways; remedy at law. 593. Discretion of municipal authorities not interfered with. 594. Railway company in street; closing streets; vacating streets; plaintiffs must own adjacent property. 595. Exercise of franchise. 596. Closing highway. 597. Disfiguration of premises by proposed road; land acquired for specific purpose. 597a Unauthorized opening or maintenance of highway enjoined. 597b. Unauthorized use of streets by gas company enjoined. 597c. Injunction against steam-roller in highway. 597d. Municipality may enjoin improvement contrary to ordinance. 597e. Injunction against total obstruction of street. 597f. Telegraph and telephone poles; electric light poles and wires. 597fir. Injunction on behalf of telephone company against electric street railway. 597?i. Injunction on behalf of electric lighting company against rival company in highway. 551 552 INJUNCTIONS. [chap. IX. § 578. Taking property for road or street without compen- sation enjoined. The preventive jurisdiction of courts of equity hy the writ of injunction is frequently invoked to restrain the opening of streets and highways because of the refusal or omission of the public authorities to make proper compensation to property owners for damages incurred in tak- ing their land for public use. And the principle is well es- tablished in cases of streets and highAvays, as in cases of rail- roads, that the failure to make or tender due compensation. to the owner of land for damages incurred by taking his land for the purposes of a road or street, will justify relief by injunction at the suit of the property owner until his dam- ages are properly adjusted, or until just compensation is made therefor.i In such cases the jurisdiction is exercised for the prevention of irreparable injury which would necessarily re- sult from the prosecution of such public works without just compensation being first made to the property owner, the ordinary legal remedies being regarded as inadequate to af- ford satisfactory relief.^ Where, therefore, commissioners of 1 Commissioners v. Durham, 43 from opening a ditch over plain- Ill., 86; Horton v. Hoyt, 11 Iowa, tiff's property without condemna- 496; Powers i;. Bears, 12 Wis., 213; tion and compensation. Strohl v. Uren v. Walsh, 57 Wis., 98, 14 N. Borough of Ephrata, 178 Pa. St.,, W., 902; Carbon C. & M. Co. r. 50, 35 Atl., 713. In Fulton v. Town Drake, 26 Kan., 345; Mason City S. of Dover, 6 Del., Ch., 1, 6 Atl., 633, & M. Co. V. Mason, 23 West Va.. it was held that a property owner 211; Jarvis v. Town of Grafton, 44 may enjoin the taking of a portion West Va., 453, 30 S. E., 178; City of his property by a municipality of New Albany v. White, 100 Ind., for the purposes of a highway be- 206; Folley v. Passaic, 11 C. E. cause of the failure of the authori- Green, 216; Carpenter v. Grisham, ties to comply with the terms of 59 Mo., 247; Eidemiller r. Wyan- a statute which provided that upon dotte City, 2 Dill., 376; Mclntire v. the condemnation of any land for Lucker, 77 Tex., 259; 13 S. W., the purpose of a highway, imme- 1027; Hopkins r. Cravey, 85 Tex., diate notice thereof should be giv- 189, 19 S. W., 1067; Olson v. City en to the owner. of Seattle, 30 Wash., 687, 71 Pac, - Commissioners v. Durham. 43 201. Upon the same principle, a III., 86. And see Sidener v. Nor- municipality may be enjoined ristown, 23 Ind., 623. CHAP. IX.] STREETS AND HIGHWATS. 553 highways are proceeding to open a road without having ad- justed the damages with the owner of land over which it is proposed to locate the road, an injunction will be granted to restrain their proceedings.-'' And where a municipal corpora- tion, under claim and color of right, enters upon and takes private property for public uses, giving the owner a grossly inadequate compensation for the damages incurred, if the steps taken are regular in form so that the illegality does not appear on the face of the proceedings themselves, an injunction will be granted, the common law remedy by cei^tiorari being in- sufficient.'* So where, under the constitution of the state, pay- ment of compensation to the land owner, or a deposit of the requisite amount must be made before his property can be ap- propriated to the use of any corporation, a court of equity will enjoin the taking possession of such property for the pur- pose of a public road before making the payment or deposit. And the injunction may be allowed, in such case, pending an appeal by the land owner from the award of damages for the land taken.^ So when a board of county supervisors in con- structing a highway have encroached upon plaintiff's land by building an embankment thereon, without his consent and without making compensation, they may be reciuired by man- datory injunction, upon the final hearing, to remove such em- bankment.^ § 579. Statutory or legal remedy must be first exhausted. The general doctrine as above stated is to be accepted with this qualification: that where a statutory remedy is provided for obtaining damages for private property taken in the construc- tion of roads, or for the relief of such persons as consider them- selves aggrieved in the assessment of damages for their prop- erty taken, such statutory remedy must be first exhausted be- a Commissioners v. Durham, 43 s Eidemiller v. Wyandotte City, 111- 86. 2 Dill., 376. * Baldwin v. Buffalo, 29 Barb., 6 Harrison v. Board of Supervis- 396. ors, 51 Wis., 645, 8 N. W., 731. 554 INJUNCTIONS. [chap. IX. fore equity will extend its protection.'^ Thus, where a statute provides a mode of obtaining damages for property taken for the use and construction of a road, but, the owner of the land has neglected to avail himself of the mode of relief thus pointed out, he will not be allowed to enjoin the construction of the road because of the non-payment of damages.^ And the owner of land through which a city has laid out a street, and who is dissatisfied with the assessment of damages, but has failed to avail himself of a legal remedy provided by statute, is not en- titled to an injunction against the city authorities to prevent their entering upon his land.^ So where the grounds relied upon for an injunction to restrain the opening of a highway are irregularities in the statutory proceedings for opening such highway and the rejection of plaintiff's claim for dam- ages, equity will not interfere by injunction when plaintiff may have full relief by appeal or writ of error. ^^ § 580. Injunction allowed when leg^al remedy inadequate. Where the legal remedy is plainly insufficient to meet the requirements of the case and to avert the threatened injury, equity will not compel the person aggrieved to await the tardy action of the ordinary tribunals. Thus, where the power of taxation of a municipal corporation is so inadequate that compensation can not, within a reason- able time, be made to the owner of private property for damages resulting to him by laying out a street through his i)roperty, the opening of the street will be enjoined until security is given for all damages which may be in- curred.^ ^ § 581. Effect of contract with property owner. Where, however, a lot owner in a city has entered into an agree- " Nichols V. Salem, 14 Gray, 490; » Nichols r. Salem, 14 Gray, 490. Reckrer v. Warner, 22 Ohio St., m Frevert v. Finfrock, 31 Ohio 275. And see Parham v. Justices, St. 621. And see McClelland v. Mil- 9 Ga., 341. ler, 28 Ohio St., 488. « Reckner V. Warner, 22 Ohio St., n Keene r. Bristol, 26 Pa. St., 275. 46. CHAP. IX.] STREETS AND HIGHWAYS. 555 nient with the city authorities for the sale of his |. remises at a given price, and the city is proceeding to prepare the lot for use as a public highway, he can not enjoin them from so doing upon the ground that the damages for tak- ing his property have not been paid; since if he claims that the sale to the city is void, his remedy is by eject- ment; otherwise, by an action to recover the purchase money under the agreement of sale.^^ § 582. Injunction refused when legal tribunal has acted. Equity will not enjoin a turnpike company from operat- ing its road over complainant's premises upon the ground that insufficient damages have been assessed for the right of way, when the assessment has been made in the manner prescribed by statute, and no fraud or misconduct is charged against the persons making it, and when no ap- peal has been prosecuted from their decision. In such case the court will presume that the action of the persons desig- nated by law to make the assessment is correct, and will regard it as conclusive so long as it remains in force and unreversed.12 Nor will the opening of a highway over plaintiff's land be enjoined upon the ground that the dam- ages awarded him are inedequate, when he has neglected to avail himself of the statutory remedy by appeal from the award.^'* So when the right of a land owner to compensa- tion for his land taken in the construction of a highway has been passed upon by a board of municipal officers desig- nated and empowered by law for that purpose and decided adversely to the owner, he can not enjoin the taking of the land because of want of compensation, since the action of the legal tribunal authorized to determine the question of compensation will not be thus avoided collaterally in equity.^'* 12 Hammerslough r. City of Kan- i^ Hopkins v. Keller, 16 Neb., sas. 57 Mo., 219. 569, 20 N. W., 874. i:* Norristown Turnpike Co. v. i^ Masters f. McHolland, 12 Kan,, Burket, 26 Ind., 53. 17. 556 INJUNCTIONS. [CIIAP. IX. § 583. Effect of pending- appeal ; failure to award damages to railway. When a city has instituted proceedings to con- demn property of a railway company for the use of a pro- jected street across the railway, and an award of damages has been made, but an appeal has been taken by the com- pany from such award, the pendency of the appeal having the effect under the laws of the state of vacating the assess- ment of damages, the city may be enjoined, pending the appeal, from taking possession of the property in question. ^^ But a railway company will not be alloAved to enjoin the opening of a highway across its road upon the ground that the commissioners appointed for ^ that purpose have assessed no damages in favor of the company on account of such crossing, when the statute affords an adequate remedy by appeal from the action of the commissioners.^" § 584. Removal of fences ; quarrying stone. It is also held that when a municipal corporation threatens to remove plaintiff's fences as an alleged encroachment upon a street, plaintiff having for thirty years been in the undisturbed possession of the premises, the city having used no por- tion thereof for a street, and offering no compensation to plaintiff and no means of adjusting his compensation for the property to be taken, an appropriate case is presented for relief by injunction.^s So a property owner may enjoin the municipal authorities from proceeding upon his laud and tearing down fences and removing trees upon the alleged ground that a portion of the land is a part of the public highway.^'* And the owner of a lot abutting upon a pub- lic street, who owns the fee in the street subject to the pub- lic easement, may restrain the unautliorized quarrying and I" City of Kansas v. Kansas Pa- ]« Shields v. Mayor of Savannah, cific R. Co., 18 Kan., .331. See also 55 Ga., 150. See also Bingham v. Blackshire v. Atchison, T. & S. F. City of Walla Walla, 3 Wash., 68, R. Co., 13 Kan., 514. 13 Pac. 408. " Chicago & A. R. Co. r. Maddox, i'' Villase of Itasca v. Schroeder, 92 Mo., 469, 4 S. W., 417. 182 111., 192, 55 N. E., 50. CHAP. IX.] STREETS AND HIGHWAYS. 557 removal of stone from the street in front of his premises ■vvhieh constitutes the chief value of the land.^o § 585. Effect of tender of damages. The question of a tender of the damages incurred in the opening of highways may have considerable weight in determining whether the injunction shall be permitted, and an actual tender of dam- ages may be sufficient to bar the person aggrieved from relief in equity. Thus, where all the proceedings required by law for the opening of a public highway have been fully complied with, and damages for the land condemned have been properly assessed and tendered the owner, who re- fuses them, he will not be allowed to enjoin an officer from opening the highway.-^ But if damages for the land appro- priated be not tendered the owner or his agent, he may properly enjoin proceedings for the opening of the road.-- §586. Duration of injunction; irreparable injury must be shown. The object of an injunction in the class of cases under consideration being the protection of the property owner from such loss and injury as would result from tak- ing his property without just compensation, it will be en- forced only so long as may be necessary to secure this end. And where a bill is filed to restrain county authorities from opening a highway upon the ground that they have not assessed the damages to property holders or provided for the payment thereof as required by law, the officers will be enjoined only until such time as they shall have complied with the requirements of the law and made suit- able provisions for damages incurred; and it is error in such case to make the injunction perpetual.^s And in the absence of any allegations of irreparable injury an injunc- tion will not be granted against the construction of streets 20 Althen v. Kelly, 32 Minn., 280, 22 Curran v. Shattuck, 24 Cal., 2u N. W., 188. 427. 21 Creanor v. Nelson, 23 Cal., 464. 23 Champion v. Sessions, 2 Nev., 271. 558 INJUNCTIONS. [chap. IX. or roads, since without such injury no sufficient reason ex- ists for seeking redress in an equitable rather than a legal forum.2^ § 587. Municipal control over streets rarely interfered with; changing grade of street. The jurisdiction of equity in restraint of the action of municipal corporations in reg- ulating streets and highways is exercised with much cau- tion, and is not regarded as a favorite jurisdiction with the courts. In the absence of allegations of irreparable injury, equity will h-esitate to interfere when the effect of an injunc- tion would be to review the action of such inferior political tribunals, and thus practically constitute a court of equity a court of errors to sit in review of the proceedings of other tribunals. And with the control of matters resting largely in the discretion of municipal authorities equity will not ordi- narily interfere. Thus, a municipal corporation will not be enjoined in the exercise of its control over the regulation of streets and the laying down of curbstones on a proposed line where no irreparable injury is shown as likely to ensue, the sole equity of the bill resting in the fact that the curbstones are not being established on the true line. Nor will the fact that such action of the city authorities may involve some expense to complainant and lessen the value of his property affords sufficient ground to warrant a departure from the rule and authorize an injunction against the proceedings.-^ Nor can a street railway company enjoin the enforcement by the city authorities of an ordinance requiring it to re- move its tracks from the side to the center of the highway, where such ordinance iz merely the exercise by the city of its right to make reasonable regulations for the use of the street, and the plaintiff's franchise has been granted subject to that right.-^ Nor will the municipal autliorities be re- s'* Holmes V. Jersey City, 1 Beas., -•« Macon C. S. R. Co. v. Mayor, 299. 112 Ga., 782, 38 S. E., 60. 25 Id. CHAr. IX.] STEEETS AND HIGHWAYS. 559 strained from preventing plaintiff from laying gas pipes in a public street, under an ordinance granted for that pur- pose, where it is not clear that plaintiff has fulfilled the con- ditions and requirements of the ordinance. ^^ So a street rail- way company can not enjoin the municipal authorities from removing tracks laid in the highway under an ordinance for that purpose, where plaintiff has wholly failed to comply with the requirements of the ordinance as to the manner in which the tracks shall be laid.^^ j So a railway company can not enjoin a city from constructing a street at grade across the tracks of the company, the city having full powej" so to do.2» The rule is well established, however, that; j, ,, equity may enjoin a municipal corporation from changing the^'^^S established grade of a street, to the serious injury of a lot! '<^.. owner, without having ascertained and paid his damages in the manner provided by law.^^ And where the fee to the'\ street is in the abutting owner and where, at the time of! the opening of the highway, certain shade trees located upon it were allowed to remain, the municipal authorities may be restrained from subsequently removing such trees in the absence of some public necessity for so doing.^i § 588. The same. An injunction will not be allowed to prevent the authorities of a city from exercising their con- trol over the opening or widening of public streets or high- 27 Chicago Municipal G. L. & F. 10 S. Dak., 312, 73 N. W., 101, 39 Co. V. Town of Lake, 130 111., 42, L. R. A., 345. But see, contra, 22 N. E., 616. Moore v. City of Atlanta. 70 Ga., 28 Spokane St. Ry. Co. v. City of 611, where it is held that, although Spokane Palls, 46 Fed., 322. a property owner abutting upon a 29 New York & N. E. R. Co. v. street may be entitled to recover City of Boston, 127 Mass., 229. damages for injuries sustained by 30 McElroy v. Kansas City, 21 a change in the grade of the street. Fed., 257; Wilkin v. City of St. he can not enjoin the city from Paul, 33 Minn., 181, 22 N. W., 249; making such change until his dam- Brown V. City of Seattle, 5 Wash., ages are paid. 35, 31 Pac, 313, 32 Pac, 214, 18 L. 3i City of Atlanta v. Holliday, 96 R. A., 161; Searle v. City of Lead, Ga., 546, 23 S. E., 509. 560 INJUNCTIONS, [chap. IX. ways, or from interfering therewith at the suit of one whose only right is based on twenty years adverse user and pos- session, and in the absence of other equities such adverse possession will not warrant relief.^^ Nqj. -^[w equity inter- pose to prevent the commission of alleged torts or trespasses which consist simply in such acts as are incident to the widening of a street and the removal of a portion of a side- walk under proper authority, but will leave the parties to such redress as is afforded by the ordinary legal tribunals.^^ § 589. IiB.ymg railway tracks in streets. The use of streets for purposes unauthorized by the dedication of the land to the public, or by the law under which the dedication was made, may be enjoined where special injury is shown to result to the adjacent property owner owning the fee in the street subject to the public easement. Thus, the laying of the track of a railway company over land which has been dedicated to the public use for streets, being unau- thorized by the dedication, will be enjoined when no compen- sation has been made to the property owner, and when there is serious doubt as to the authority of the railway company 32 Cross V. Mayor, 3 C. E. Green, limitations against individuals, 305; Taintor v. Mayor, 4 C. E. but only where the state or public Green 46. This was a bill for an are expressly included. This is a injunction againsi the mayor and wise and wholesome principle that corporate authorities of the city of I feel no inclination to disregard Morristown to restrain the remov- or to narrow. To protect high- al of trees, fences and shrubbery ways from encroachments that it in widening a street upon which is the business of no one to resist, complainant had encroached. Com- requires that the public be allowed plainant relied, among other to resume its rights at any dis- points, upon possession for a per- tance of time, disregarding any iod of more than twenty years. Za- loss to those who have appropriat- briskie, Chancellor, in passing ed and erected improvements on upon the case, says: "The posses- the public domain, or to the more sion for over twenty years can innocent purchasers from them." avail the complainant nothing. It •'':' Cross r. Mayor, 3 C. E. Green, is well settled that time does not 30.5. See also Sims r. City of run against the state, or the pub- Frankfort, 79 Ind., 446. He, by analogy to the statute of •CHAP. IX.] STEEETS AXD HIGHWAYS. 561 to proceed. And in such case the injunction will be granted at the suit of the owner of the fee, on the ground that the use of the streets for such unauthorized purpose is a special injury to him.^^ So an injunction will be granted at the suit of adjacent property owners, sustaining a special and peculiar injury, to restrain the laying of a street rail- way through streets in front of their premises without legal authority from the common council of the city.^^ And the construction of a third track of a street railway in a pub- lic highway, under a municipal grant, which would result in "an unreasonable obstruction of the street may be restrained at the suit of an abutter whose means of access to his prop- erty would thereby be unnecessarily impaired; and the relief is granted regardless of the ownership of the fee.^^ So the unauthorized laying of a switch track of a railroad in a public highway contrary to the requirements of the ordi- nance under which the road was being constructed, whereby the right of ingress and -egress to adjacent property is practically destroyed, constitutes ground for equitable relief upon behalf of the abutting owner who suffers special dam- age from such obstruction.^'^ But where the charter of a street railway authorizes the construction of its tracks through the streets of a city, it' is not regarded as in vio- lation of the provision of the constitution prohibiting the taking of private property without compensation, and an injunction will not be allowed. Such a provision in a char- ter is regarded rather as promoting the legitimate use of the highway and the exercise of the public right of travel, and not as the taking of private property without compensa- 31 Schurmeier v. St. Paul & P. R. v. Inter-Country S. R. Co., 167 Pa. Co., 10 Minn., 82; Street Railway St., 120, 31 Atl., 476. r. Cumminsville, 14 Ohio St., 523; ss Dooly Block v. S. L. R. T. Co., Railway Co. v. Lawrence 38 Ohio 9 Utah, 31, 33 Pac, 229, 24 L. R. St., 41. A., 610. 35 Wetmore v. Story, 22 Barb., ^t Chicago, St. L. & P. R. Co. v. 414; S. C, 3 Ab. Pr., 262; Thomas Eisert, 127 Ind., 156, 26 N. E.. 759. 36 562 INJUNCTIONS. [chap. IX. tion.38 ^ii(j -where the fee to the highway is in the munici- pality, the construction of a raih'oad or street railway track, under competent legislative or municipal authority, there being no actual taking of the property of the abutting owner, does not constitute the taking of private property without compensation within the meaning of such a consti- tutional provision, and the abutter can therefore not enjoin such construction but will be left to pursue his legal remedy for such consequential damages as he may have sustained.^^ But a property owner abutting upon a street may restrain the operation through the street in front of his premises of a street railway for private purposes, the company being authorized under its charter to operate its road for the bene- fit of the public only, and the city having no power to au- thorize the construction and operation of the road through the streets for private purposes.^^ So, also, where it is beyond the power of a city council to grant to a private individual the right to operate a railroad in a public highway for purely private purposes, the construction of such a road will be enjoined at the instance of an abutting owner.*i And the relief is granted in such a case w^hether the fee to the street is in the abutter or in the municipality, the injury resulting from the nuisance being the same in either case.*^ And one who owns lands abutting on both sides of a street, owning also the fee of the street subject to the public ease- ment, is not by reason of such ownershi^^ entitled to con- 38Hinchman v. Paterson H. R. *" Mayor r. Harris, 73 Ga., 478; Co., 2 C. E. Green, 75. S. C, 75 Ga., 761. 39 Osborne v. Missouri Pacific R. *^ Glaessner v. A.-B. B. Assn., Co., 147 U. S., 248, 13 Sup. Ct. Rep., 100 Mo., 508, 13 S. VV., 707; Gustaf- 299; O'Brien v. Baltimore B. R. son r. Haram, 56 Minn., 334, 57 N. Co., 74 Md., 363, 22 Atl., 141, 13 W., 1054, 22 L. R. A., 565; Richi v. L. R. A., 126; Garrett v. L. R. E. Chattanooga Brewing Co., 105 Co.. 79 Md., 277, 29 Atl., 830, 24 L. Tenn., 651. 58 S. W.. 646. R. A., 396; Poole v. Falls R. E. R. 42 Qustafson v. Hamm, 56 Minn., Co., 88 Md., 533, 41 All., 1069. 334, 57 N. W., 1054, 22 L. R. A., 565. CHAP. IX.] STEEETS AND HIGHWAYS. 563 struct and operate railway tracks across the street, and can not enjoin the municipal authorities from removing such tracks, their use being inconsistent with the public use. And in such case, the municipal officers being authorized under the laws of the state to remove the obstruction, an injunction will not be granted upon an information by the attorney-general."^^ And the owner of a lot abutting upon a public street can not enjoin the construction and opera- tion of a railway through the street when he sustains no injury different from that sustained by the public at large."*"* But a municipal corporation which is charged by law with the duty of maintaining the public streets may enjoin the unauthorized construction of a street railway in its streets."*^ §589 a. Elevated railroad in street; hack stands. The owner of property which abuts upon a public highway, the fee of which is in the municipality, can not enjoin the con- struction of an elevated railroad upon the highway in front of his premises upon the alleged ground that the ordinance under which the road is being constructed is ille- gal, as for want of the necessary frontage consent required by law. The use of the street for such a purpose constitutes no new or additional burden, and, since the fee is in the municipality, the adjacent property suffers a consequential injury merely, for which ample redress may be had in a court of law; and the abutter will accordingly be left to the pursuit of his legal remedy for whatever damage he may have sustained."*^ Upon similar principles, a railroad com- 43 Bay State Brick Co. v. Foster, -le Doane v. Lake Street El. R. 115 Mass., 431. Co., 165 111., 510, 46 N. E., 520, 36 4* Crowley v. Davis, 63 Cal., 460; L. R. A., 97, 56 Am. St. Rep., 265, Decker v. E., S. & N. R. Co., 133 followed by Blodgett v. Northwest- Ind., 493, 33 N. E., 349; Gundlach ern El. R. Co., 26 C. C. A., 21, 80 V. Hamm, 62 Minn., 42, 64 N. W., Fed., 601. In New York, where it 5o. is held that neither the legislature *5 Borough of Stamford v. Stam- nor the municipality has the pow- ford H. R. Co., 56 Conn., 381iwl5 er to authorize the construction of Atl. 749. an elevated railroad upon a pub- 564 INJUNCTIONS. [chap. IX. pany which owns property abutting upon a public highway can not enjoin the maintenance of hack stands in the street adjacent to its property under an alleged illegal ordinance since the proper remedy is an action at law for the damage sustained. Nor can the plaintiff resort to equity in such case for the protection of the public interests involved since such wrongs are to be redressed by the proper public author- ities.^^ §589 6. Electric railroad in street; the rule in New York. The operation of street railways by means of the modern sys- tem of overhead trolley wires, which has superseded prac- tically all other means of street railway locomotion, consti- tutes no new or additional burden upon the highway but is held to be a legitimate and proper use within the contempla- tion of the original dedication, and the abutting owner can therefore not enjoin the operation of such a road in the high- way adjacent to his premises.' Whether the fee be in the municipality or in the abutter, the original dedication must be held to have contemplated new and improved methods of transportation, and so long as the new system does not interfere unreasonably with the use of the street by the adjacent owner or by the public generally, no case is pre- sented for equitable relief.^^ So where a street railway com- lic highway without compensation 765; Thompson v. Manhattan R. to the abutting owner for the in- Co., 130 N. Y., 360, 29 N. E., 264; jury to his easement, the prevailing McGean v. M. El. R. Co., 133 N. Y., practice is to grant a perpetual in- 9, 30 N. E, 647; Woolsey v. N. Y. junction against the construction El. R. Co., 134 N. Y., 323, 30 N. E., or maintenance of the elevated 387. structure, unless the defendant ■•' Pennsylvania Co. v. City of sLall pay the amount of the dam- Chicago, 181 111., 289, 54 N. E., 825, age sustained. Pappenheim v. M. 53 L. R. A., 223. El. R. Co., 128 N. Y., 436, 28 N. E., 48 Taylor r. P.. K. & Y. R. Co., 518, 13 L. R. A., 401; American 91 Me., 193, 39 Atl., 560, 64 Am. Bank-Note Co. r. N. Y. El. R. Co., St. Rep., 216; Howe v. West End 129 N. Y., 252, 29 N. E., 302, 50 Am. R. Co., 167 Mass., 40, 44 N. E., 386; & Eng. R. Cas., 298; Hughes r. M. Poole r. Fails R. E. R. Co., 88 Md., El. R. Co., 130 N. Y., 14, 25 N. E., 533, 41 Atl., 1069; Placke v. Union CHAP. IX.] STREETS AND HIGHWAYS. 565 pany, being the owner of its right of way, has granted to a city an easement consisting of a right of way along a por- tion of such land, an injunction will not lie to restrain another company, acting under an ordinance from the city, from operating an electric street railway upon such right of way without compensation, since such a use does not con- stitute a new or additional servitude and, being a proper enjoyment of the public easement, is not a taking of private property for which compensation may be demanded.'*^ But in New York, it is held, contrary to the otherwise unani- mous rulings of the courts, that the construction of an electric street railway upon a public highway is a new use and imposes an additional servitude and that the lot owner who owns the fee to the center of the street subject to the public easement may therefore enjoin the construction, of such a road until compensation has been made him.^*' In the case, however, of an iuterurban electric railway which runs cars at great speed upon raised rails and having for its object the carrying of freight as well as passengers, the operation of such a line constitutes an additional use of the street and may be enjoined at the suit of the abutting owner in whom is the fee to the highway until proper compensa- tion is made.^^ § 589 c. Frontage consent. As regards the right to equitable relief against the construction of a street railway or of a steam or elevated railroad in a public highway upon the ground that the ordinance under which the work is proceeding was not based upon the necessary frontage con- sent as required by law, the authorities are not harmonious. The better doctrine undoubtedly is that so long as the use itself to which the street is to be subjected is a proper one D. R. Co., 140 Mo., 634, 41 S. W., so Peck v. Schenectady R. Co., 170 915. N. Y., 298, 63 N. E., 357. 49 Birmingham T. 'Co. v. Bir- ^i Schaaf v. C, M. & S. R. Co., 6ft mingham R. & E. Co., 119 Ala., 137, Ohio St., 215, 64 N. E., 145. 24 So., 502, 43 L. R. A., 233. 566 INJUNCTIONS. [chap. IX. witliin the contemplation of the original dedication, and the work is proceeding under color of an apparently valid ordinance, the question of the right thus to occupy the high- way, it subsequently appearing that the necessary front- age consent had never been obtained, is one which can be raised only by the municipality entrusted with the control of the highway in a direct proceeding brought for that pur- pose, and the individual property owner will be left to the pursuit of his legal remedy for such damages as he may have sustained.^- Upon the other hand, it has been held that the abutting owner is entitled' to relief for want of the necessary frontage consent, where it is shown that the pro- 52 Doane v. Lake Street El. R. Co., 165 111., 510, 46 N. E., 520, 36 L. R. A., 97, 56 Am. St. Rep., 265, followed by Blodgett v. Northwest- ern El. R. Co., 26 C. C. A., 21, 80 Fed., 601, and by Atchison, T. & S. F. R. Co. V. General Electric R. Co., 50 C. C. A., 424, 112 Fed., 689; General Electric R. Co. v. C. & W. I. R. Co., 184 111., 588, 56 N. E., 963; Coffeen v. Chicago, M. & St. P. R. Co., 28 C. C. A., 274, 84 Fed., 46. To the same effect, see Mc- Wethy V. A. E. L. Co., 202 111., 218, 67 N. E., 9. Contra, Beeson v. City of Chicago, 75 Fed., 880. In the Doane case, supra, decided in 1897, Mr. Justice Wilkin uses the following language: "It is insist- ed on behalf of the complainant, that on the facts set up in his bill the ordinance must be treated as passed without the required con- sent of abutting owners, and there- fore illegal and void, which being true, the defendant should be held as proceeding with the work with- out any authority of law whatever, whereas in the cases referred to lawful consent of the city was shown. The real ground upon which relief by injunction is de- nied in such cases is, that the use of the street being within the pur- poses for w^hich it is laid out, and therefore a proper use, the right to occupy is properly a question be- tween the defendant and the mu- nicipality having the control of its streets and charged with the duty of keeping them free from unlawful obstructions, or between the defendant and the public gen- erally, the individual being left to his action for damages for any injury resulting to his property. He has no standing In equity on account of public injury or for the purpose of inflicting punishment upon the defendant for its wrong- ful acts. He can only invoke that jurisdiction in order to protect his property from threatened injury. His injury is a depreciation of the property, which is capable of being estimated in money and recover- able in an action at law, therefore a court of equity will not interfere by injunction." CHAP. IX.] STREETS AND HIGHWAYS. 567 posed work will result in irreparable injury for which there can be no adequate redress in an action at law.^^ §590. Injunction pending suit to test leg-al right; insol- vency of defendant. Where an action at law is pending for the purpose of testing the legal right of opening a highway, an injunction may be allowed to restrain its opening pend- ing the trial of right.^^ And if the injury resulting from the road which it is sought to restrain is likely to prove irrepa- rable in its nature, and if it is not susceptible of adequate compensation in pecuniary damages, a proper case is pre- sented to warrant the interference of equity. Upon similar grounds of the inadequacy of the remedy at law, an injunc- tion may be allowed upon allegations of defendant's in- solvency, since such insolvency would render futile any attempt to recover pecuniary damages for the loss incurred.^^ . § 591. Apprehensions of future injury, when insufficient. It is frequently a matter of difficulty to determine how far the work contemplated must have proceeded before a court of equity may be properly called upon to interfere. It would seem, however, that apprehensions of future injury, even though orders may have been given for the preliminary steps toward the construction of a road, do not constitute sufficient ground for interference. Thus, the presenting of a petition to the commissioners of highways for a private road and an expressed determination on their part, by order- ing a survey of the road, to grant the petition, will not authorize a court of equity to enjoin the proceedings.^^ § 592. Opening of public highways ; remedy at law. When defendants, the road commissioners of a town, acting as public officers under an unfounded claim of authority, 53 General Electric Co. v. C. & ss Champion v. Sessions, 1 Nev., L. R. Co., 39 C. C. A., 345, 98 Fed., 478. 907, 58 L. R. A., 231. 56 Winkler v. Winkler, 40 111., 5* Champlin v. Morgan, 18 111., 179. 293. 568 INJUNCTIONS. [chap. IX. are endeavoring to appropriate complainant's land to the use of the public for a highway, they may be enjoined from entering upon the land and from removing trees, buildings and fences therefrom. And in such case, the court having properly acquired jurisdiction for the purposes of the injunction may, in order to prevent a multiplicity of suits and to do complete justice between the parties, under the prayer for general relief, award damages for the injuries already committed.^'^ And a property owner may enjoin municipal authorities from opening a road through his premises under proceedings which have been judicially determined to be illegal.^^ So where an order of a board of highway commissioners in laying out a high- way is void for want of jurisdiction because of a failure to give the notice required by law, the giving of such notice being treated as a jurisdictional matter, a court of equity may enjoin further proceedings for the opening of the high- way.^^ But where a land owner has joined in a petition to the proper authorities for the opening of a highway, his failure to receive notice of the proceedings will not warrant an injunction in behalf of his grantees.^^ Where, however, the law affords a plain and adequate remedy for persons aggrieved by the action of highway commissioners in the opening of a public highway, one who stands by and with- out objection or complaint suffers the proceedings to go on in the mode provided by law will not be allowed relief by injunction.^'^ So the extension of a highway across plain- •""•T Winslow V. Nayson, 113 Mass., lie to prevent the opening of a 411. highway upon the ground of irreg- ^^ Rose V. Garrett, 91 Mo., 65, 3 ularity in the proceedings of the S. W., 828. highway commissioners, unless the .'-,!) Frizell v. Rogers, 82 111., 109; proceedings are so defective as to Adams v. Harrington, 114 Ind., 66, amount to a nullity. McDonald r. 14 N. E., 603. Payne, 114 Ind., 359, 16 N. E., 795. ""Graham v. Flynn, 21 Neb., 229, «i Sparling v. Dwenger, 60 Ind., 31 N. W., 742. And in Indiana it 72. See also Sunderland v. Martin, is held that an injunction will not 113 Ind., 411, 15 N. E., 689. CHAP. IX.] STREETS AND HIGHWAYS. 560 tiff's land will not be enjoined where he has a plain and adequate remedy at law by certiorariJ^- § 593. Discretion of municipal authorities not interfered with. Courts of equity are averse to interfering with the exercise of the discretion or judgment of public officers in matters committed to their care, and where municipal or town authorities are charged by law with the care of high- ways, and are empowered to remove obstructions there- from, equity will not pass in review upon their judgment as to wdiat constitutes an obstruction. Where, therefore, such officers are about to remove a private railroad track which has been laid across a highway by a manufacturing corpo- ration, they will not be enjoined from such removel.'^^ § 594. Railway company in street ; closing streets ; vacat- ing streets; plaintiff must own adjacent property. It is also held that where the fee of the streets is in a city, and the common council have granted to a railway company a right to construct their tracks therein, equity will not, at the suit of a private citizen abutting on the street, enjoin the operation of the railroad in a given street because of an excess of authority in the use of that street, but will leave the injury to be redressed by the pub- lic authority .'^^ Nor will a court of equity, at the suit of a citizen who shows no special injury to himself different from or other than the general injury to the public, enjoin the temporary closing up of certain streets in a city which have never been used, and which are not susceptible of being used by reason of their never having been improved."^^ So a private property owner, owning property which abuts on a public street at a considerable distance from a point where it is proposed by the city authorities to vacate the «2 Rockwell V. Bowers, 88 Iowa, 64 Patterson r. Chicago, D. & V. 88, 55 N. W., 1. R. Co., 75 111., 588. 63 Bay State Brick Company v. es Prince v. McCoy, 40 Iowa, 533.. Foster, 115 Mass., 431. 570 iNJUNCTioxs. [chap. ix. street, can not manitain an action to enjoin such vacation, when he shows no special injury which will be sustained by himself as distinguished from the general injury to the pub- lic.^'* Nor will the fact that the purpose of the proposed va- cation of the street is to devote it to railroad uses warrant relief by injunction in such case.*^^ And the fact that such property owner has paid assessments for improving the street gives him no such property right therein as to entitle him to relief in equity against its vacation.^^ Nor will the vacation of a highway be enjoined where the property owner has an adequate remedy at law by certiorariS'^ But a municipal corporation which has no power to vacate high- ways may be enjoined from so doing at the suit of an abutting owner who will suffer special damage different in kind from that inflicted upon the public generally.'*' And the proper public officers may enjoin the vacation of a street for purely private purposes, and the relief will be granted irrespective of the question of pecuniary damage.'''^ § 595. Exercise of franchise. In conformity with the gen- eral principle that equity will not interfere where there is ample remedy at law, an injunction will not be allowed against the exercise of the franchise of a road on grounds which should be urged at law. Thus, where a statute gives 66 City of Chicago v. Union Build- owners to enjoin a city from erect- ing Association, 102 III., 379; Mc- ing a market upon land formerly Gee's Appeal, 114 Pa. St., 470, 8 platted as a street, but which has Atl., 237. And in Parker v. Catho- been vacated as a street and used lie Bishop, 146 111., 158, 34 N. E., by the city for more than thirty 4/3, the same principle was applied years for "market ^purposes, see in the case of the vacation of an Cooper v. Detroit, 42 Mich., 584, 4 alley. And see also Heller v. Atch- N. W., 262. ison, T. & S. F. R. Co., 28 Kan., 625. «» McLachlan v. Town of Gray, And see, post, §§ 757, 1301. 105 Iowa, 259, 74 N. W., 773. 67 McGee's Appeal, 114 Pa. St., '^' Texarkana r. Leach, 66 Ark., 470. 8 Atl.. 237. 40, 48 S. W., 807, 74 Am. St. Rep., OS City of Chicago v. Union Build- 67. ing Association, 102 111., 379. As '• Smith v. McDowell, 148 111.. to the right of adjacent property 51, 35 N. E., 141, 22 L. R. A., 393. CHAP. IX.] STKEETS AND HIGHWAYS. 571 a special remedy at law against a plank-road company for neglecting to keep its road in repair, equity will not enter- tain jurisdiction to restrain it from collecting its tolls until the proper repairs are made, but will leave the party com- plaining to avail himself of his legal remedy." - §596. Closing highway. A court of chancery may, it would seem, restrain the commission of an act which is likely to result in irreparable injury to an individual, or to be prejudicial to the public, pending proceedings before the proper tribunal to determine as to the authority to com- mit the act. And where an injunction has been granted to restrain the closing up of a road until defendant can show some legal authority for his action, it will not be dissolved in the absence of any showing of such authority.'''^ Where, hoW'Cver, the owner of real estate over which the public au- thorities, without legal right, assert a claim to a highway, attempts to take possession of and to close up such highway, but is interfered with by the authorities, an injunction is the appropriate remedy to prevent such interference.'''^ But where a road has been properly discontinued, the forcible re-opening thereof and the removal of fences necessary in re-opening it will not warrant a court of equity in interfer- ing. Such acts are regarded as mere trespasses for which the law affords ample relief and they will not be enjoined in equity.'^^ § 597. Disfiguration of premises by proposed road ; land acquired for specific purpose. It may sometimes happen from the peculiar circumstances of a particular case that an injury, ordinarily susceptible of relief at law, is so irreparable in its character as to require the interposition of T2 Commonwealth v. Wellsboro' "* Oliphant v. Commissioners of & T. P. R. Co., 35 Pa. St., 152. Atchison Co., 18 Kan., 386. 73 Williamson r. Carnan, 1 Gill & '^ Nichols r. Sutton, 22 Ga., 369. J., 184. But see, contra, Lyle v. Lesia, 64 Mich., 16, 31 N. W., 23. 572 INJUNCTIONS. ■ [chap. IX, the strong arm of equity for its prevention. Thus, where it is alleged in the bill that complainant's premises, through which it is proposed to construct a road, are of symmetrical proportions and easily cultivated, and that the passage of the proposed road through the premises will greatly disfigure them and increase the expense and difficulty of their cultiva- tion, an injunction will issue. Under such circumstances the relief is extended on the ground that the injury, being irrep- arable in its character and of continuing duration, can not. be remedied by an action at law for damages.'''^ So equity will sometimes interfere with the construction of public works for the purpose of protecting parties in the enjoyment of their premises for the particular purposes for which they were acquired. Thus, commissioners of highways will be enjoined from laying out a road across complainant's rail- way track and grounds acquired for engine-houses and other like uses of the railway. The land having been ac- quired for specific purposes, an injunction is regarded as the proper remedy to secure its quiet enjoyment.''"^ § 597 a. Unauthorized opening or maintenance of high- way enjoined. The unauthorized opening of a highway 'through plaintiff's premises and the cutting of his timber and hedges and the removal of his fences in opening the highway constitute sufficient grounds for an injunction, even though it is not shown that defendants are insolvent, the injury in such case being regarded as irreparable.'^ And a road- overseer may be enjoined from tearing down plaintiff's fences and destroying his trees under pretense of keeping open an alleged highway across plaintiff' 's j)remises, when in fact no such highway exists, the relief being granted upon the ground that such unlawful acts might become the founda- 7'i Champion v. Sessions, 1 Nev., nell, 24 N. Y., 345; Mohawk & H. 478. R- Co. V. Artcher, 6 Paige, 87. 77 Albany & N. R. Co. v. Brow- 7« McPike v. West, 71 Mo., 199. 'CHAP. IX.] STREETS AND HIGHWAYS. 573 tion of adverse rights, and also for the prevention of a multi- plicity of suits.'''^ § 597 h. Unauthorized use of streets by gas company en- joined. A land owner whose lands are crossed ])y a pub- lic highway and who owns the fee in such highway, sub- ject to the public easement, may restrain a corporation from laying and maintaining a line of pipes under the highway, for the purpose of supplying natural gas, until compensa- tion has been made for the injury to his property.^^ And a gas company may be enjoined at the suit of a town from excavating in the streets and laying its pipes, the company having received no license or authority from the town.^^ § 597 c. Injunction against steam-roller in highway. Where a gas company has laid its pipes in a highway, under legislative authority, in a proper manner, due regard being had for wdiat, at the time of laying the pipes, was ordinary traffic and reasonable and ordinary means of re- pairing roads, an injunction will lie to restrain the munici- pal authorities from using a steam-roller in repairing the road, thereby resulting in the breaking of plaintiff's pipes which were properly laid at a time before steam-rollers came into use.^- § 597 d. Municipality may enjoin improvement contrary to ordinance. Where an ordinance has been adopted calling for the improvement of a street and sidewalk in a particular manner and an abutting property is proceeding to make the improvements in a manner which differs materially from the specifications and requirements of the ordinance, 79 Chadbourne v. Zilsdorf, 34 §2 Alliance & D. C. G. Co. v. Dub- Minn., 43, 24 N. W., 308. lin County Council, (1901) 1 L. R. 80 Sterling's Appeal, 111 Pa. St., Ir., 43; Gas Light & Coke Co. v. 35, 2 Atl., 105. Vestry of St. Mary Abbott's, 15 Q. 81 Citizens G. & M. Co. v. Town B. D., 1. of Elwood, 114 Ind., 332, 16 N. E., €24. 574 INJUNCTIONS. [chap. IX. an injunction is the appropriate remedy upon behalf of the municipality to restrain such unauthorized action.^^ § 597 e. Injunction against total obstruction of street. Since the owner of land abutting upon a public highway has, as appurtenant to his property, an easement consisting of the right to the free and unimpeded use of the street to its full width, any permanent obstruction whereby he is totally or practically deprived of such right, even though the obstruction be under legislative authority, constitutes a tak- ing of private property without compensation and will be enjoined. Thus, where the defendant, acting under a legisla- tive and municipal grant, is erecting a stone approach to a toll bridge which is of such a character as to leave a space in front of plaintiff's premises so narrow as to render the street totally unfit for its legitimate use, an injunction will be granted until the plaintiff's easement is condemned and proper compensation made. And the relief is granted in such case regardless of the ownership of the fee to the highway.^^ §597/. Telegraph and telephone poles; electric light poles and wires. As to the right of the owner of property abut- ting upon a highway to restrain the location of telegraph or telephone poles along the highway without compensation being first made him for the injury caused thereby, the authorities are conflicting. Upon the one hand, it has been held that the location of such poles, whether for telephone or telegraph purposes, constitutes no new or additional use of the high- way and relief by injunction is accordingly denied.^^ Upon S3 Drew V. Town of Geneva, 150 Co., 60 Minn., 539, 63 N. W., Ill, Ind., 662, 50 N. E., 871, 42 L. R. 28 L. R. A., 310; Magee v. Over- A., 814. shiner, 150 Ind., 127, 49 N. E., 951, «< Willamette Iron Works v. O. 40 L. R. A., 370. See this last case R. & N. Co., 26 Ore., 224, 37 Pac. for an exhaustive review of the 1016, 29 L. R. A., 88, 46 Am. St. authorities upon the question Rep., 620. whether the erection of such poles »•'' Cater v. Northwestern T. E. imposes an additional servitude. CHAP. IX.] STKEETS AND HIGHWAYS. 575 the other hand, there is excellent authority for holding that where the fee to the street is in the abutter, the erection of such poles imposes an additional servitude upon the high- way for which the abutting owner is entitled to recover compensation and that an injunction is the proper remedy to prevent such an intrusion until such compensation is ascer- tained and paid.^*^ But where the fee to the highway is in the municipality, the abutting owner can not enjoin the erec- tion of electric light poles and the stringing of wires be- cause of the alleged illegality of the ordinance under which the work is being done, where he shows no injury different in kind from that suffered by the public generally .^'^ But the owner of property abutting upon a private alley may enjoin the placing of such poles and the stringing of wires over the alley for the purpose of furnishing light to adjoining lot owners, where the fee to the alley is in the abutter and such use amounts to the imposition of an addi- tional servitude.^^ § 597 g. Injunction on behalf of telephone company ag-ainst electric street railway. Regarding the question of granting equitable relief upon behalf of a telephone company whose wires are strung under or along a highway to restrain the operation of an electric street railway upon the highway and the consequent interference with its telephone service result- ing from the grounding of the defendant's current or from the induction from its trolley wires, it would seem And in Coburn v. New T. Co., 156 ss stowers v. Postal Tel. Co., 68 Ind., 90, 59 N. E., 324, 52 L. R. A., Miss., 559, 9 So. 356, 12 L. R. A., 671, it was held that the abutting 864, 24 Am. St. Rep., 290; Donovan owner who also owned the fee to the r. Allert, 11 N. Dak., 289, 91 N. W., center of the street could not en- 441, 58 L. R. A., 775. join the construction of a conduit s? McWethy r. A. E. L. Co., 202 for telephone wires along the edge 111., 218, 67 N. E., 9. of a sidewalk and three feet from f^" Carpenter v. Capital Electric plaintiff's lot line, since such use Co., 178 111., 29, 52 N. E., 973, 43 L. imposed no new use upon the high- R. A., 645, 69 Am. St. Rep., 286. way. 576 INJUNCTIONS. [chap. IX. that so long as the defendant constructs its electrical system in a reasonable and proper manner, taking due care not to interfere unreasonably with the rights of the plaintiff, no case is presented for the interposition of equity. Under such circumstances, the operation of an electric street rail- way is regarded as a legitimate use of the highway, to which its use for the purpose of telephone service is to be held subservient, and the fact that the presence of the electric current seriously interferes with the proper operation of the plaintiff's lines is regarded as damnum absque injuria, and equitable relief is accordingly denied.^*' If, upon the other hand, the defendant constructs and operates its elec- tric system with a wilful or wanton disregard of the rights of the plaintiff and without the exercise of ordinary or reasonable care to prevent undue interference with the plain- tiff' 's service, such conduct amounts to an improper use of the highway and an abuse of its franchise by the defendant, and will accordingly be restrained by injunction.^'^ §597/(. Injunction on behalf of electric Ughting- company against rival company in highway. Where an electric light- ing company has entered into a contract with a municipality for the lighting of its streets and in pursuance thereof has erected its poles and strung its wires in which is conducted a current of low tension, and the defendant, a rivel com- pan}', under permission from the municipal authorities, afte^- Avards erects its poles and strings its wires in such a way as to cause imminent danger to plaintiff' 's property and to its employees resulting from the proximity of defendant's 8!» Cumberland T. & T. Co. v. 588. And see Hudson River T. Co. United Electric R. Co., 42 Fed., r. Watervliet, T. & R. Co., 121 N. 2'(3, 12 L. R. A., 544, 43 Am. & Eng. Y., 397, 24 N. E., 832. R. Cas., 194; Cincinnati I. P. R. ""Birmingham T. Co. v. Soutli- Co. V. Telephone Association, 48 ern B. T. & T. Co., 119 Ala., 144, 24 Ohio St.. 390, 27 N. E., 890. 12 L. So., 731. R. A., 534, 46 Am. & Eng. R. Cas., CHAP. IX.] STREETS AND HIGHWAYS. 577 wires and the fact that they carry a current of very high tension, an injunction is properly granted restraining the defendant from maintaining its wires in such a way as to interfere with those of the plaintiff.^^ 91 Rutland E. L. Co. v. M. C. E. R. A., 821, 36 Am. St. Rep., 868. Co., 65 Vt., 377, 26 Atl., 635, 20 L. 37 CHAPTER X. OF INJUNCTIONS AGAINST RAILWAYS. I. Pbinciples Governing the Jurisdiction § 598 II. Failure to Compensate fob Right of Way 622 I. Principles Governing the Jurisdiction. § 598. Considerations of relative inconvenience and injury. 599. Railway company held to strict compliance; unauthorized ex- tension of track. 600. Violation of conditions; railway and canal company. 601. Contest as to possession. 602. Construction of railroads. 603. Change of route; quo warranto; canal. 604. Injunction against issuing free passes. 605. Injunction against consolidation or extension. 606. Rights of bondholders. 607. Construction of bridges; grade crossings. 608. Breach of operating contracts. 609. When injunction refused against street railway. 610. Running coaches on street railway; injunction against laying street railway. 611. Condemnation of part of street railway by another; exclusive rights of way. 612. Filling up canal by railway company. 613. Excess of authority in authorizing street railway. 614. Planting trees; construction of levees. 615. Cautious exercise of jurisdiction. 616. Refusal to deliver to consignee; imposing additional or illegal charges; use of wharves. 617. Judgment creditors enjoined at suit of bondholders. 618. Laches and acquiescence of property owner a bar to relief. 619. Interference with right of way. 620. Obstruction by rival road enjoined. 621. Approach to bridge. 621a. Interchange of traffic; unjust discrimination; unreasonable freight rates; stock yards; railroad may enjoin enforcement of unreasonable maximum freight rates; form of injunction. 578 CHAP. X.] AGAINST RAILWAYS. 579 § 6216. Express facilities; sleeping cars; oil company. 621c. Condemnation for other companies, or for improper purposes. 621d. Injunction against monopoly; securing control of parallel line. 621e. Injunction on behalf of railroad against ticket brokers; parties. § 598. Considerations of relative inconvenience and injury. Courts of equity are frequently called upon to inter- fere by injunction with the construction of railroads in such manner or under such circumstances as would be pro- ductive of irreparable injury. In exercising its jurisdiction over cases of this nature a court of equity will in the use of a sound discretion balance the relative inconvenience and injury which is likely to result from granting or with- holding the writ, and will be largely governed by such cir- cumstances in determining upon the relief. And where an injunction restraining the use of a railway would not only be productive of great injury to the railway company and to the public, but would resuli in no corresponding advan- tage to any one, not even to the persons asking such relief, it will not be granted.^ So where the work of construct- ing a railway is of great magnitude and one involving large expense, if it is apparent that the injury which would result to defendant by granting the injunction, in case the result should prove it to have been wrongly granted, would be greater than that which would result to complainant from a refusal of the injunction, in the event of the legal right being proved to be in his favor, the court will not interpose.^ And where the continuance of an interlocutory injunction against the construction of a railway will prevent the con- summation of a costly public enterprise, and thereby be 1 Torrey v. Camden & A. R. Co., Booraem v. North H. C. R. Co., 40 3 C. E. Green, 293; Western Ry. N. J. Eq., 557, 5 Atl., 106. V. Alabama G. T. R. Co., 96 Ala., 2 Greenhalgh. v. Manchester & B. 272, 11 So., 483, 17 L. R. A., 474. R. Co., 3 Myl. & Cr., 784; Hacken- And see Greenhalgh i\ Manchester sack Improvement Commission v. & B. R. Co., 3 Myl. & Cr., 784; New Jersey Midland R. Co., 7 C. E. Green, 94. 580 INJUNCTIONS. [chap, X. productive of serious inconvenience to the public, it is proper to modify the injunction so as to allow the work to proceed upon giving adequate security to pay such dam- ages as may be occasioned by the talking and occupation of the land in controversy.^ And equity will not, in limine, at the suit of a municipal corporation, enjoin the construc- tion of a railroad under legislative authority within the limits of the municipality, when the legal right upon which the claim to relief is based is doubtful and unsettled.'* § 599. Railway company held to strict compliance ; unau- thorized extension of track. Courts of equity are inclined to hold railway companies to a strict compliance with the terms and conditions upon which they have been permitted to enter upon land necessary for the construction of their lines, and in default of compliance with such conditions they are not entitled to the protection of equity. Thus, where a railway company is forbidden by statute to construct its road upon the streets of an incorporated city without the assent of the corporate authorities, and when the city has granted a right of way to the company upon certain express conditions, which have not been fulfilled, the authorities will not be enjoined from re-entering and taking possession of the grounds granted the railway company, the privilege of re- entering in case of default on the part of the company hav- ing been reserved in the contract.^ And the unauthorized extension of its track by a railway company is the exercise of a valuable franchise, and is of itself sufficient ground for relief by injunction.'^ 3 Coe V. New Jersey M. R. Co., r. West End R. Co., 29 N. J. Eq. (2 28 N. J. Eq. (1 Stew.), 27; City of Stew.), 566. Portland r. Oregonian R. Co., 7 •''' Pacific R. Co. v. Leavenworth, Sawy., 122; Wellington & P. R. Co. 1 Dill., 393. V. Cashie & C. R. Co., 116 N. C, o People r. Third Avenue R. Co., 924, 20 S. E., 964. 45 Barb., 63. ■« Long Branch Commissioners CHAP. X.] AGAINST RAILWAYS. 581 § 600. Violation of conditions ; railway and canal com- pany. In conformity with the general rule laid down in the preceding section, requiring a strict compliance on the part of railway companies with the conditions annexed to the grant of a right of way, it has been held that where a railway has been permitted to enter one's land and con- struct its road on condition of refraining from a specific in- jury irreparable in its nature and not easily estimated in damages, an injunction Avill lie to restrain the violation of such condition.''' But where, as between a railway and canal companj^ an injunction has been granted restraining the one from locating its route on the ground of prior and par- amount right of choice in the other, if it appears that the defendant is properly entitled to a priority of choice in the selection of ground for its route, the injunction will be dis- solved.^ § 601. Contest as to possession. The sole object of a pre- liminary injunction being to protect the property or rights in controversy until a final hearing upon the merits, a court of equity will not interfere to take property out of the possession of one party and put it into the possession of another. And where complainants allege that they are entitled to the posssession of a railway, but that defendants are in actual possession under claim of right, it is improper to restrain defendants from using the road until the right can be determined.^ § 602. Construction of railroads. The construction of a railway in a city is not regarded as a nuisance per se and the laying of its track along a public street will not be enjoined on that ground.^ *^ Nor can a private property ■ Unangst's Appeal, 55 Pa. St., 53 Pa. St., 224; Minneapolis & S. 128. L- R. Co. V. C, M. & St. P. R. Co., 8 Canal Company v. Railroad 116 Iowa, 681, 88 N. W., 1082. Company, 4 Gill & J., 1. i" New Albany & S. R. Co. v. 9 Farmers R. Co. v. Reno R. Co., O'Daily, 12 Ind., 551; Fulton v. 582 INJUNCTIONS. [chap. X. owner, abutting upon and owning the fee to the center of a street, enjoin the construction of an ordinary surface railway in the street, upon the ground of nuisance, when he shows no special injury which will result to him from such construction.il And the owner of property abutting upon a street the fee of which is in the municipality can not enjoin the operation of a loop of a street railway in the highway upon the ground that it impairs his easement, since the injury thus inflicted is susceptible of compensation in an action at law for damages.^- Such control may, however, be exercised by a court of equity over the par- ticular manner of construction as is necessary for the pre- vention of serious and irreparable injury. And where a railway company is erecting an arch over a mill race in such manner as to be productive of serious injury to the mill, it may be enjoined from making its arch of less than certain specified dimensions, such as will obviate the injury.^-^ So where a railway company is proceeding to enter upon private property for the purpose of locating its road, an injunction may be granted until the opening of a street through which the road is, by its act of incorporation, re- quired to pass.i^ And a railway company which is author- ized by law to construct its road across any public highway, upon condition that it shall restore the highway to its former state of usesfulness, may be enjoined from construct- ing its road lengthwise in the highway, and from intersect- ing it at such an angle as to render it dangerous to the public, and may also be compelled to remove obstructions upon failure to comply with the conditions required by the court as to the method of construction.^^ And a railway Short Route R. T. Co., 85 Ky., 640, '■'J Coats v. Clarence R. Co., 1 4 S. W.. 332. Russ. & M., 181. iiGarnett r. Jacksonville, St. A. I'Jarden r. Philadelphia, W. & & H. R. R. Co., 20 Fla., 889. B. R. Co., 3 Whart, 502. 12 Haskell r. Denver T. Co., 23 i!"' State r. Dayton & S. E. R. Col., 60, 46 Pac, 121. Co.. 36 Ohio St., 434. CHAP. X.] AGAINST RAILWAYS. 583 company, having similar powers, may be compelled by mandatory injunction to restore a highway to its former condition of usefulness, the suit, in such case, being prop- erly brought by the town when it is charged by law with the duty of keeping in repair all public highways.^ ^ § 603. Change of route ; quo warranto ; canal. Where a railway company has obtained municipal subscriptions in aid of the construction of its road, upon its agreement to construct it upon a given route and to certain pre- scribed points, the company being of doubtful financial ability to construct its main line as agreed, equity may in behalf of the municipality enjoin the construction of a branch road by the company which is likely to render it incapable of completing its main line as agreed.^ '^ Where, however, a railway company is empowered to build three different lines of road, and after constructing one of the three it abandons the others, upon a bill by a shareholder to enjoin the application of its funds except with a view to the con- struction of the three lines as authorized, the court may properly weigh the relative convenience and inconvenience to the parties, and refuse the injunction when it is apparent that more inconvenience will result from granting than from refusing it. And additional ground for refusing the relief in such case is found in the fact that complainant has acquiesced in the abandonment for a considerable period of time.i^ So the fact that a railway company, which is organized to build a specified line of road, intends to con- struct but a part of such line instead of the whole affords no 16 Town of Jamestown v. Chi- however, that this decision was cago, B. & N. R. Co., 69 Wis., 648, given under a statute prohibiting 34 N. W., 728. See County of Cook any railway from diverting its V. Great Western R. Co., 119 III., road from a municipality from 218, 10 N. B., 564. which it had received aid. IT Town of Platteville v. Galena is Hodgson i\ Earl of Powis, 1 & Southern Wisconsin R. Co., 43 De Gex, M. & G., 6. Wis., 493. It is to be observed. 584 iNJUNCTioxs. [chap. X. ground for enjoining such construction.^^ Nor does the fact that proceedings are pending against the railway com- pany in quo warranto to procure its dissolution afford any ground for such an injunction.-^ Nor will the relief be granted to restrain persons, who are authorized by act of parliament to construct a canal, from cutting through their own lands for that purpose, upon the ground of insufficiency of their funds for the completion of the undertaking.-^ § 604. Injunction against issuing free passes. Upon a bill by a shareholder in a railway company seeking to enjoin the company from issuing free passes to members and officers of a state legislature upon the ground of diminishing the revenues of the company, the fact that it has previously issued such passes is not of itself ground for the relief, it not being shown that the company intends issuing them in the future. And the mere fears and apprehensions of the plaintiff, in such case, are not sufficient to warrant the relief, but the court itself must be satisfied that the wrong is about to be committed before it will interfere. -- § 605. Injunction against consolidation or extension. An injunction is the appropriate remedy in behalf of a share- holder in a railway company to prevent its consolidation with another company, when complainant has not consented to such consolidation. And in such case complainant is not estopped from relief bj^ the fact that as a director of the company he acquiesced at a meeting of directors in proceed- ings preliminary to the consolidation and preliminary to a vote of the shareholders upon the question.-^ But a stock- holder can not enjoin an extension of the line of a railway company by its directors, when their action in making 1!' Aurora & C. R. Co. v. City of 22 Goodwin r. New York, N. H. Lawrenceburgh, 56 Ind., 80. & H. R. Co., 43 Conn., 494. '^0 Id. -■■' Mowrey v. Indianapolis & C. ^1 Mayor v. Pemberton, 1 Swanst., R. Co., 4 Bissell, 78. 244. CHAP. X.] AGAINST RAILWAYS. 585 such extension is within the scope of the corporate powers of the company and is free from fraud.-** § 606. Rights of bondholders. One of several bondholders secured by a railway mortgage will not be allowed an in- terlocutory injunction to prevent the transfer to a foreign railway corporation of so much of the mortgaged property as is located within the state, when the property is of such a nature that it can not be removed from the state, and when no formal transfer can injure plaintiff pending his action, the property still remaining in the state and subject to the final decree in the cause. -^ But where by the terms of a mortgage securing the bonds of a railway it is provided that all subsequently acquired property shall be subject to the mortgage, the holders of such bonds, in an action brought in behalf of themselves and all others similarly situated, maj^ enjoin the sale or disposition of iron rails subsequently acquired by the company, which have been pledged to per- sons having notice of the equities of the bondholders, but are not entitled to such injunction as against pledgees ad- vancing money and taking the rails as security in good faith, and without notice of complainants' equities.-*^ And a railway company may be enjoined, upon a bill filed in be- half of its mortgage bondholders, from aiding and encourag- ing in the building of another road which would operate to divert business from the former road, and thereby depreciate the security for its bonds, the interest on the bonds being; unpaid and largely in arrears.^'^ § 607. Construction of bridges ; grade crossings. A rail- way company which is entitled to construct a bridge over 2^ Sims V. Street Railroad Co., 37 Wilds v. St. Louis, A. & T. H. R. Ohio St., 556. As to the right of a Co., 102 N. Y., 410, 7 N. E., 290. shareholder to restrain the com- 25 McHugh r. Boston, H. & E. R. pany from paying interest upon Co., 66 Barb., 612. its mortgage bonds which have 20 Weetjen v. St. Paul & ' P. R. been redeemed by and are held to Co., 4 Hun, 529. the credit of a sinking fund, see 27 Pullan v. Cincinnati & Chicago Air Line R. Co., 4 Bissell, 35. 586 INJUNCTIONS. [chap. X. the track of another road may have an injunction to restrain the latter company from interfering with such construe- tion.28 And in the absence of express legislation regulating the manner in which one railway shall cross another, a court of equity may properly entertain jurisdiction of the matter, and may enjoin the new road from crossing the old one at grade, when it is for the manifest interest and advantage of both roads that the one should cross the other at a dif- ferent level or grade.-^ So it is held that a provision in a state constitution authorizing a railway company to in- tersect, connect with, or cross any other railroad is not self-acting and does not authorize a company to intersect the tracks of another in its own discretion. An injunction will therefore lie to prevent such crossing until defendant's right has been fixed either by negotiation or by legal pro- ceedings.^*^ But equity will not enjoin a railway company from proceeding under the eminent domain act of the state to acquire a right of way across complainant's tracks, de- fendant being authorized under the law of the state to effect such crossing, and no injury being shown as likely to result from the proposed crossing which can not be adequately com- pensated in damages.31 § 608. Breach of operating contracts. An injunction has been allowed to restrain a railway company from preventing 28 Great, etc., R. Co. v. Clarence Texas & St. L. R. Co., 4 Woods, 360; R. Co., 1 Coll., 507. And the in- S. C, 10 Fed., 497. junction in this case seems to si Lake Shore & M. S. R. Co. v. have been granted, in effect, as a Chicago & W. I. R. Co., 97 111., 506. mandatory injunction, restraining As to the right to enjoin a grade defendant from continuing to crossing and as to the effect of maintain and uphold certain walls non-user of defendant's franchises erected by it, whereby plaintiffs for a series of years, in such case, were prevented from constructing see Western P. R. Co.'s Appeal, 104 their bridge. Pa. St., 399. As to the right to en- 20 Chicago & N. W. R. Co. v. Chi- join a grade crossing under the cage & P. R. Co.. 6 Bissell, 219. laws of Iowa, see H. & S. R. Co. v. ao Missouri, K. & T. R. Co. v. C, St. P. & K. C. R. Co., 74 Iowa, 554, 38 N. W., 413. CHAP. X.] AGAINST KAIL WAYS. 587 the plaintiff company from using defendant's line in the manner and upon the terms provided in an agreement be- tween the two companies.^- And where two railway com- panies had entered into an agreement for using interchange- ably each other's roads upon certain prescribed terms, an injunction was granted to restrain one of the companies from depriving the other of the use of its road under the con- tract.^^ § 609. When injunction refused against street railway. A street railway company, which is authorized by its charter to la}^ its tracks in a given street in a city, but which has no exciusive authority under the terms of its charter, can not maintain an action to restrain another company from laying and oj^erating its tracks under an authority conferred by its charter. In such a cas^e, even if there be an excess of power on the part of the defendant company, the public alone can interfere by injunction to restrain its operations; and the plaintiff company, having no exclusive rights in such street, can not interfere to protect the public interest, unless some actual interference with its own tracks is done or threatened.^^ So a street railway company which is au- thorized by a city to operate its road through a given street, but which has no exclusive right therein, is not entitled to an injunction to restrain another company, authorized by the city, from building its line of road upon the street.*"*^ And since the grant to a railroad company of the privilege of laying its tracks upon or across a public highway does not give it the exclusive right to the use of the street but merely the right to its use in common with the public gen- "■; Great Northern R. Co. r. Lan- Co. v. Central C. R. Co., 67 Barb., cashire & Y. R. Co., 1 Sm. & Gif., 315; S. C, 4 Hun, 630. 81. •■•'• New Orleans City R. Co. v. ■•■•■■i Great Northern R. Co. v. Man- Crescent City R. Co., 23 La. An., Chester R. Co., 5 De Gex & Sm., 759. See also Kinsman Street R. 138. Co. r. Broadway & N. S. R. Co., 36 3i Christopher & Tenth Street R. Ohio St., 239. 588 INJUNCTIONS. [chap. X. erally, it can not enjoin a street railway company from laying its tracks in the highway across its own.^^* But in a contest between two railway companies, each claiming a right of way in a street, a preliminary injunction may be properly granted to maintain plaintiff in its possession, but not to oust a com- pany already in possession.^''' A street railway company can not, however, enjoin the moving of a building along its tracks when the interruption caused thereby to its business is but temporary and the injury may be readily determined and may be compensated in damages. ^^ §610. Running coaches on street railway; injunction against laying street railway. It is also held that a street railway company, claiming the exclusive right to run cars upon its road as laid in the streets of a city, is not en- titled in limine to an injunction restraining vehicles, such as coaches, from using the road of complainant in the streets, under a claim of right to exclude from the street competing vehicles, w^hen the right asserted by complainant is unde- termined and is dependent upon disputed propositions of law.^'^ Where, however, plaintiff', a railway company, had maintained its track upon a strip of land in a city street for more than twenty years, claiming title thereto by grant from the original owners at a period prior to the incorpora- tion of the city, and had obtained an interlocutory injunction restraining defendants from laying a street railway beside plaintiff"s, under a grant from the city authorities, the court refused to dissolve the injunction upon bill and answer, and 30 Chicago, B. & Q. R. Co. v. W. La. An., 561. As to the right of a C. S. R- Co., 156 111., 255, 40 N. B., street railway company to enjoin 1008, 29 L. R. A., 485; General a steam railway company from Electric R. Co. v. C. & W. I. R. Co., crossing its tracks in the streets 184 111., 588, 56 N. E., 963; Atchi- of a city, see Atchison Street R. son, T. & S. F. R. Co. v. General Co. r. Missouri P. R. Co., 31 Kan., Electric R. Co., 50 C. C. A., 424, 112 660, 3 Pac, 284. Fed., 689. ^^ Fort Clark H. R. Co. r. Ander- •li New Orleans & N. E. R. Co. v. son, 108 111., 64. Mississippi, T. B. & L. R. Co., 36 ai> Citizens Coach Co. v. Camden CHAP. X.] AGAINST RAILWAYS. 589 retained it until the final hearing, in order that the ques- tion of title might be properly determined. ^"^ §611. Condemnation of part of street railway by another; exclusive rights of way. In Illinois it is held that a horse railway company can not, under the eminent domain act of the state, acquire for its own use by proceedings for con- demnation a portion of a street railway previously con- structed by another company and in successful operation, and by thus taking a fragment of defendant's road destroy its usefulness and impair defendant's franchise; and a per- petual injunction will lie to prevent such injury to and ob- struction of defendant's property and franchise.^^ And it is held in New York, that when a railway company files a map and survey of its proposed route and gives the required notice to property owners affected by such location, it ac- quires a right to construct its line upon such route to the exclusion of all other companies. Another railway company may, therefore, be enjoined from laying tracks upon such proposed route so as to obstruct or interfere with the con- struction of plaintiff's road."*- But a railway company claiming title as lessee of another company to certain lands and rights of way which have been abandoned for railroad purposes, its lease being held invalid, can not enjoin another company from entering upon and constructing its road over the premises in question.^^ § 612. Filling up canal by railway company. When a rail- way company, without authority, is filling up the location of Horse R. Co., 29 N. J. Eq. (2 Western N. C. R. Co. v. Georgia & Stew.), 299. N. C. R. Co., 88 N. C, 79. As to *o Camden & A. R. Co. v. Atlan- the right of highway commission- tic City P. R. Co., 11 C. E. Green, ers in New York to enjoin a street 69. railway company from abandoning •41 Central City H. R. Co. v. Fort a portion of its route, see Moore v. Clark H. R. Co., 81 111., 523. Brooklyn City R. Co., 108 N. Y., 98, *2 Rochester, H. & L. R. Co. v. 15 N. E., 191. New York, N. E. & W. R. Co., 110 « Troy & B. R. Co. r. Boston, N. Y., 128, 17 N. E., 680. And see H. T. & W. R. Co., 86 N. Y., 107. 590 INJUNCTIONS. [CIIAP. X. a public canal, owned by a state, in such manner as to en- tirely obstruct its use, an injunction will lie to restrain such action. And in such a case, the company acting ii? excess of its powers, no question of damage is presented, but simply a question of the invasion of plaintiff's right. It is not necessary, therefore, that any irreparable injury should be shown to warrant the relief, nor can defendant in such case justify its action or prevent an injunction upon the ground that the part of the canal in controversy is practically abandoned.^^ § 613. Excess of authority in authorizing street railway. The authority of the body granting permission for the con- struction of a road may be called in question, and it would appear that where such authority has been exceeded the work may be enjoined. •^^ Thus, where the common council of a city has exceeded its power in authorizing the construc- tion of a street railway and its operation for an indefinite period of time, the construction of the road may properly be enjoined.'**^ § 614. Planting trees ; construction of levees. Under the authority of equity to interfere for the prevention of irrepar- able mischief, a railway company may be enjoined from planting trees so close to one's land as to overshadow it and to cause the roots to spring up to the damage of the soil.'*''' And where a statute provides that in the construc- tion of levees over private property just compensation shall be paid to the owners for damages thereby incurred, an in- junction may properly issue to stay proceedings until the damages have been ascertained and paid according to law.*^ § 615. Cautious exercise of jurisdiction. From the peculiar nature of woi-ks of public improvement and the serious in- ** Commonwealth v. Pittsburg & *« Milhau r. Sharp, 27 N. Y., 611. C. R. Co., 24 Pa. St., 159. ^t Brock r. Connecticut, etc., 35 ^■' Milhau V. Sharp, 27 N. Y., 611; Vt., 373. Hays V. Jones, 27 Ohio St., 218. ^8 Horton v. Hoyt, 11 Iowa, 496 CHAP X.] AGAINST RAILWAYS. 591 jury that may result from any unwarranted interference with their construction, the jurisdiction in restraint of such works is exercised with great caution, keeping constantly in view the damage that may result from improperly re- straining their operation. Except in cases of peculiar hard- ship, an injunction should not be granted against the con- struction of a public work before the coming in of the answer, since the granting of an injunction upon every ex parte bill which might be presented would place such works at the mercy of every landed proprietor through whose premises they pass.'*^ §616. Refusal to deliver to consignee; imposing additional or illegal charges; use of wharves. Where, however, a rail- way company in its capacity as a common carrier refuses to make a personal delivery of goods to a consignee, the fact that a statutory remedy has been provided will not pre- vent a court of equity from entertaining jurisdiction of the matter if the statutory remedy is inadequate. And where the course pursued by the carrier is such as to greatly in- jure if not destroy the business of complainants, and dam- ages at law would afford no just compensation for the in- jury, an injunction is the proper remedy. Nor will such carrier be allowed to impose upon certain warehousemen additional charges beyond what are imposed upon others, and it may be enjoined from attempting to levy such charges.^^ So where complainant, a coal mining company, having its tram-road connected with defendant's railway, and being entirely dependent upon such railroad for the means of transporting its coal to market, sustains special damages and injury by reason of illegal exactions by de- fendant in excess of the rates fixed by law, an injunction *9 Elmslie v. Delaware & S. C. so "Vincent (•. Chicago & A. R. Co., Co., 4 Whart, 424. And see Dela- 49 111., 33. ware & R. Canal r. Raritan & D. B. R. Co., 1 McCart., 44-5. 592 INJUNCTIOXS. [CIIAP. X. may be allowed to prevent defendant from receiving higher rates than those allovi^ed by law. And the relief is re- garded as appropriate in such case upon the ground of the injury being a constantly recurring one, for which there is no adequate remedy at law.^^ But a mandatory injunction was refused in the first instance, when sought by dealers and shippers of coal to compel a railway company to allow or continue to plaintiffs such use of wharves and wharfing privileges for shipping coal as were required for their busi- ness.^- § 617. Judgment creditors enjoined at suit of bondholders. It is also held that where judgment creditors have levied upon a large portion of the rolling stock of a railway, a sale of which would result in stopping the operations of the road, mortgage bondholders of the company, whose mortgage is a prior lien to that of the judgment creditors, are entitled to an injunction to restrain proceedings under the execu- tion.^2 And where large numbers of judgment creditors, claiming conflicting liens upon a railroad, are proceeding to sell parts of the road under legal process, equity may prop- erly interfere at the suit of a bondholder by the granting of an injunction and the appointment of a receiver for the benefit of all parties in interest, and may restrain such sales for the purpose of preventing irreparable injury and a mul- tiplicity of suits.^^ 51 American Coal Company r. gage upon the road, which was Consolidation Coal Company, 4t; operated through several different Md., 15. states forming one continuous line, 52 Audenried v. Philadelphia & filed its bill in Georgia to restrain R. R. Co., 68 Pa. St., 370. a sale there of detached portions of 53 Coe V. Pennock, 6 Am. Law the road by different and conflict- Reg. O. S., 27. ing judgment creditors, and ob- 54 Noble Brothers v. State of Ala- tained an injunction and receiver bama, 4.3 Ga., 466. In this case for the purpose of preventing a the State of Alabama, having in- sale of the road in detached parts, dorsed the bonds of a railway com- and for its better preservation for pany and being secured by mort- the benefit of all concerned. CHAP. X.] AGAINST RAILWAYS. 593 § 618. Laches and acquiescence of property owner a bar to relief. To entitle one to relief by injunction against the construction of a railroad over his land, he must use due diligence in the assertion of his rights, since the relief will not be granted in favor of one who has been guilty of great laches, and who has by his own conduct given an implied assent to the construction of the work which he afterward seeks to restrain. Thus, where the owner of land has silently stood by and neglected to assert his rights, and has permitted a railway company to enter upon his land and to proceed with the erection of its works for a consider- able length of time without interruption or complaint, he is estopped from the aid of equity for the prevention of the work.^^ And where a property owner, who seeks to en- join a railway company from using its tracks upon a street in front of his premises,^ has permitted the company to ex- pend large sums of money in the construction of its tracks, and has acquiesced in their use for a considerable number of years without objection or complaint, such acquiescence will deprive him of relief by injunction regardless of what his original equities may have been.^^ So an injunction has been refused in behalf of lot owners in a cemetery to re- strain a railway company from constructing its road through the cemetery, plaintiffs having long slept upon their rights and permitted the company to make large expenditures, hefore seeking relief.^" §619. Interference with right of way. An action can not be maintained by a railway company to restrain defendant 55 Greenhalgh v. Manchester & B. proceedings, upon his right to an R. Co., 3 Myl. & Cr., 784; Pickert injunction. V. Ridgefield P. R. Co., 10 C. E. so Baltimore & 0. R. Co. r. Green, 316. See also Relsner v. Strauss, 37 Md., 237; Ferguson r. Strong, 24 Kan., 410. And see Covington, etc., B. Co., 108 Ky., 662, this case as to the effect of the 57 S. W. 460. prosecution by the property owner 5- Wood v. Macon & B. R. Co., 68 of an appeal from condemnation Ga., 539. 38 594 INJUNCTIONS. [chap. X. from interfering with its right of way, when it is not shown that he has ever done or threatened any interference, or that he is likely to interfere with such right of way.^^ § 620. Obstruction by rival road enjoined. Where the de- fendant, a rival railway company, places an obstruction upon the approach to plaintiff's railroad in such manner as to pre- vent access thereto, thereby seriously diverting traffic from plaintiff's road, a fit case is presented for relief by injunc- tion. The jurisdiction in such case is exercised for the pre- vention of a trespass of an irreparable nature, and not sus- ceptible of measurement in damages.^'' § 621. Approach to bridge. Equity may properly inter- fere, upon an information by the attorney-general, to re- strain a railway company from keeping the approach to a bridge in a condition not in accordance with its act of incorporation.^" And a county which, under the laws of the state, is vested with general supervision and control over county roads, may enjoin a railway company from the unauthorized construction of its tracks in and along a county road.^i But a court of equity will not assume juris- diction by a bill for an injunction in behalf of the people, to restrain a railway company from operating its trains over the streets of a city, upon the ground of failure to com- ply with municipal ordinances under which the company has received its right of way through such .streets, when such matters are clearly within the control and jurisdiction of the common council of the city.^- §621 a. Interchange of traffic; unjust discrimination; un- reasonable freight rates; stock yards; railroad may enjoin ■'.'^ St. Joseph & D. C. R. Co. v. oi County of Stearns v. St. Cloud, Dryden, 17 Kan., 278. M. & A. R. Co., 36 Minn., 425, 32 N. ■'>!' London & N. W. R. Co. t'. Lan- W., 91. But see County of Cook v. cashire & Y. R. Co., L. R. 4 Eq., Great Western R. Co., 119 111.,- 218, 174. 10 N. E., 564. «o Attorney-General r. Mid-Kent «2 Cairo & Vincennes R. Co. o. R. Co.. L. R. 3 Ch., 100. The People, 92 111., 170. CHAP. X.] AGAINST RAILWAYS. 595 enforcement of unreasonable maximum freight rates; form of injunction. A mandatory injunction may be granted to compel one railway company to receive and transport cars tendered it by a connecting line ; and it affords no justifica- tion for a refusal, in such case, that the taking of the cars by the defendant company would result in a strike by its employees.^^ And a mandatory preliminary injunction is properly allowed to prevent a railroad company and its officers and employees from refusing to furnish to another railroad the same facilities for the inter-state transporta- tion of freight as are afforded to other companies.*^^ So, upon final hearing, it is proper to enjoin the defendant com- pany from refusing to accept freight or passengers from the plaintiff company except at higher rates than are charged to persons or property received from other companies, such refusal amounting to an unjust discrimination.*^^ So a rail- way company may be enjoined from making an unjust dis- crimination in rates as between different shippers. And a discrimination based upon the larger business done by the favored shipper will be enjoined upon the ground of pre- venting a multiplicity of suits. Nor will the fact that the railway company is a consolidated corporation, extending and operating its lines through different states, and made up of corporations originally existing in such dift'erent states, prevent the courts of one state through which the road is operated from giving relief in such cases.^^ So a number of manufacturers engaged in the same business may combine together to enjoin the members of a freight association from 63 Chicago, B. & Q. R. Co. v. Bur- Pennsylvania Co., 54 Fed., 746, li) lington, Cv R. & N. R. Co., 34 Fed., L. R. A., 396. 481. As to the right to enjoin the 65 Denver & N. 0. R. Co. v. Atch- diversion by a railway company of ison, T. & S. F. R. Co., 15 Fed., traffic from another road, see Chi- 650. As to the reasons for refusing cago & Atlantic R. Co. v. New York, an interlocutory injunction in L. E. & W. R. Co., 24 Fed., 516. such case, see S. C, 13 Fed., 546. 6* Toledo, A, A. & N. M. R. Co. r. ee Scofield v. Railway Co., 43 Ohio St., 571. 596 INJUNCTIONS. [chap. X. enforcing an unreasonable and unjust increase in freight rates which would result in great injury to the plaintiffs' business, the relief being granted to prevent a multiplicity of suits.*^" So where plaintiffs have established and used for a long term of years stock yards In connection with and adjoining defendant's railroad, they are entitled to an injunction to prevent defendant from refusing to deliver live stock at such yards and from interfering with the facili- ties which have been used and enjoyed by plaintiffs.*^^ And an injunction is the appropriate remedy to prevent the en- forcement of a schedule of maximum freight rates pre- scribed by statute or by a state board of railroad commis- sioners where the rates as thus fixed are so unreasonably low as to amount to the taking of private property with- out compensation and without due process of law.*^^ And the relief is properly granted in such case where it appears that the probable effect of enforcing such rates would be to prevent the earning of dividends by the company."*^ Upon the other hand, a court of equity has no power, at the in- 6T Tift V. Southern R. Co., 123 circumstances would be fair and Fed., 789. reasonable as between the carriers 68Coe V. Louisville & N. R. Co., and the( shippers; they do not en- 3 Fed., 775. gage in any mere administrative <">'■> Reagan v. Farmers' Loan & work; but still there can be no Trust Co., 154 U. S., 362, 14 Sup. doubt of their power and duty to Ct. Rep., 1047, 38 L. Ed., 1014; inquire whether a body of rates Smyth V. Ames, 169 U. S., 466, 18 prescribed by a legislature or a Sup. Ct. Rep., 418; Wallace v. Ar- commission is unjust and unrea- kansas C. R. Co., 55 C. C. A., 192, sonable, and such as to work a 118 Fed., 422; Louisville & N. R. practical destruction to rights of Co. r. McChord, 103 Fed., 216. In property, and if found so to be, to the Reagan case Mr. Justice Brew- restrain its operation." See the er uses the following language: McChord case, supra, as to the "The courts are not authorized to right to interfere in advance of the revise or change the body of rates determination of the rate by the imposed by a legislature or a commission. commission; they do not deter- to Chicago & N. W. R. Co. r. Dey, mine whether one rate is prefer- 35 Fed., 866; Chicago, St. P., M. & able to another, or what under all O. R. Co. v. Becker, 35 Fed., 883. CHAP. X.] AGAINST RAILWAYS. 597 stance of a shipper and before an alleged unreasonable freight rate has been put in force or demanded by a rail- road, to formulate a schedule of maximum freight rates to be charged by the carrier; and it is therefore without jurisdiction to enjoin the enforcement of rates in excess of the schedule thus prescribedJi And where a statute pro- hibits a railroad from demanding unreasonable rates or giv- ing unreasonable preferences, an injunction which is merely in the terms of the statute and wdiich simply repeats its gen- eral admonitions without specifying definite acts is improper since it leaves issues which should properly be determined by a court and jury in a proceeding for damages or for violation of the statute, to be decided in a contempt pro- ceeding for violation of the injunction.'^- §6216. Express facilities; sleeping cars; oil compajiy. There being no duty imposed upon a railway company, either by statute or by usage, to furnish facilities for the transac- tion of express business by express companies, an injunction will not lie to prevent the exclusion from the lines of a railway company of an express company, upon the termina- tion of a contract under which the express company has operated upon such lines.'^s ]sjor will equity grant an in- junction to compel the specific performance of a contract between a sleeping car company and a railway company for the carriage of sleeping cars, when the contract is to con- tinue through a series of years, requiring the court, should it assume jurisdiction, to supervise and control the per- formance of the contract, involving intricate details of man- agement and administration. Nor will equity interfere, in such case, if the contract in effect gives to the plaintiff a monopoly of the sleeping car business upon defendant's road,, -1 Southern Pac. R. Co. v. Col. F. & I. Co., 42 C. C. A., 12, 101 Fed., & I. Co., 42 C. C. A., 12, 101 Fed., 779. 779. 73 Express Cases, 117 U. S., 1. 72 Southern Pac. R. Co. v. Col. F. 598 INJUNCTIONS. [chap. X. since equity will not entertain jurisdiction for the protec- tion of monopolies.'''* Nor will a railway company be al- lowed to enjoin an oil company from laying its pipes for the transportation of oil, upon the ground that it might interfere with plaintiff's privileges as a common carrier.'^^ § 621 c. Condemnation for other companies, or for im- proper purposes. A railway company will not be enjoined from condemning a right of way over the tracks and lands of another company upon the ground that the road, when constructed, will be used for private purposes and for the benefit of another corporation, since the character of the road, as a public highway, is to be determined by the laws of the state and not by the intentions of its projectors.'^^ Nor can a property owner restrain proceedings by a rail- wa}^ company for the condemnation of his land upon the ground that such proceedings are had under and by direc- tion of the lessee of the company, the lease of its property and franchise being authorized by law.'^'^ So a railway company, which has succeeded by foreclosure and purchase to the property and rights of a former company, will not be enjoined from constructing a track and making a given con- nection which it is authorized to do under its charter, but which the former company had contracted not to do, such contract being regarded as binding only the former com- pany .'^^ And an injunction has been refused which was sought by property owners to restrain a railway company from constructing its road and condemning their property ~* Pullman P. C. Co. v. Texas & tral R. Co., 32 N. J. Eq., 755, re- P. R. Co., 11 Fed., 625. And see versing S. C. sub nom. Central R. Pullman P. C. Co. v. Missouri P. R. Co. v. Pennsylvania R. Co., 31 N. Co., 11 Fed., 634. J. Eq., 475. T". United N. J. R. & C. Co. v. ~i Gottschalk r. Lincoln & N. R. Standard Oil Co., 33 N. .1. Eq., 123; Co., 14 Neb., 389, 15 N. W., 695. Central R. Co. r. Standard Oil Co., "-* City of Menasha r. Milwaukee 33 N. .T. Eq., 127. & N. R. Co., 52 Wis., 414, 9 N. W., 70 National Docks R. Co. r. Cen- 396. CHAP. X.] AGAINST EAILWAYS. 599 upon the ground that the company was a fraudulent organ- ization, the court finding it to be properly incorporated, and the proceedings to be free from fraudJ^ Where, however, a company is not authorized to condemn lands for depot purposes, it may be enjoined by a property owner from ap- propriating his land under condemnation proceedings osten- sibly for other purposes for which it might rightfully exer- cise the power of eminent domain, but in reality for depot purposes.^^ § 621 d. Injunction against monopoly ; securing control of parallel line. An injunction is the appropriate remedy, upon behalf of the state, to prevent competing railroads from en- tering into ulU-a vires contracts, leases or agreements, or from doing other illegal acts, which would result in stifling competition between them to the consequent injury of the public. Thus, the attorney-general, proceeding upon behalf of the state, may enjoin two railroads from entering into a contract which was designed for the purpose of securing to the contracting companies a monopoly of the coal busi- ness of the state.^^ So the state may enjoin one railroad from acquiring control of a parallel line of another railroad contrary to the provisions of the state constitution.^^ § 621 e. Injunction on behalf of railway against ticket brokers; parties. A railway company may enjoin ticket brokers from engaging in the business of buying and sell- T9 Niemeyer v. Little Rock June- 476, affirmed in 161 U. S., 677, 16 tion R. Co., 43 Ark., 111. Sup. Ct. Rep., 714. In this case 80 Forbes v. Delashmutt, 68 Iowa, the defendant was enjoined from 164, 26 N. W., 56. acquiring possession or control of 81 Stockton V. Central R. Co., 50 the property or franchises of the N. J. Eq., 52, 24 Atl. 964, 17 L. R. parallel road; from bidding for A., 97. See this case also as to them or becoming interested in whether actual, threatened injury bidding for them at any judicial must be shown. And see, post, sale; and from becoming cestui § 1229 a. que trust of any trustee who might 82 Louisville & N. R. Co. v. Com- purchase or acquire the same, monwealth, 97 Ky., 675, 31 S. W., 600 INJUNCTIONS. [chap. X. ing the unused portions of railroad tickets which have been sold to passengers who, in consideration of the reduced rate at which they have been sold, have agreed that they should be good only in the hands of the original purchasers and that they would not sell or transfer them to other persons. In such case the legal remedy is regarded as inadequate and the relief is granted to prevent a multiplicity of suits.^^ And it is proper to join as defendants in one action numerous brokers who are all- engaged in the same business and who have a common and immediate interest in the questions of law and fact involved, where the convenience of all parties, is promoted by such a joinder.^* 83 Schubach v. McDonald, 179 man, 128 P'ed., 176; Illinois Cen- Mo., 163. 78 S. W., 1020, 65 L. R. tral R. Co. t. Caffrey, 128 Fed., A., 136; Nashville, C. & St. L. R. 770. Co. V. McConnell, 82 Fed., 65; sUllinois Central R. Co. v. Caf- Louisville & N. R. Co. v. Bitter- frey, 128 Fed., 770. CHAP. X.] AGAINST RAILWAYS. 601 II. Failure to Compensate for Right of Way. § 622. The general doctrine stated and illustrated; injury need not be irreparable. 623. Further illustrations. 624. Statutory remedy to be first exhausted. 625. When occupation or use of road enjoined. 626. Injunction allowed on failure to pay judgment; laches. 627. Specific performance of vendor's lien. 628. Requisites of bill. 629. Contest as to title, injunction denied. 630. Construction of second track; injunction denied when remedy in ejectment. 631. The doctrine in West Virginia. 632. Effect of contract as a bar to injunction. 633. Non-compliance with contract by company no ground for In- junction. 634. Further considerations as to effect of contracts. 635. Property owner on street, when entitled to injunction against construction of railway; joinder of owners as plaintiffs. 636. Restrictions upon the doctrine. 637. Distinction as to ownership of fee in street. 638. Abandonment of award, effect of. 639. Notice of meeting of commissioners necessary. 640. Failure to construct cattle gaps. 641. Railway enjoined from taking land for subsidiary purposes. 642. Use of road by another company. 643. Laches and acquiescence of property owner. 644. Company not enjoined from condemnation proceedings. 645. Condemnation of one railway by another. 646. Mill owners enjoined from flooding track. 647. Abandoned road-bed. 648. Violation of contract by city. § 622. The general doctrine stated and illustrated ; injury need not be irreparable. The ground upon which the aid of equity is most frequently invoked to restrain the con- struction of railways is the neglect or refusal to make proper compensation for the land appropriated for the use of the road. The general rule applicable to cases of this nature is, that failure or omission to compensate the owner of land, or to tender compensation for damages incurred by loeat- 602 INJUNCTIONS. [chap. X. ing a railroad over his premises, will authorize a court of equity to restrain proceedings until the damages are prop- erly adjusted, or until just compensation is made.^ The reasoning in support of the rule is found in the danger of such serious and irreparable injury resulting from the con- tinuation of the work that the tardy process of courts of law would afford inadequate relief. An injunction is there- 1 Richards r. Des Moines V. R. Co., 18 Iowa, 259; Sidener v. Nor- ristown, etc., T. Co., 23 Ind., 623; Commissioners v. Durham, 43 111., 86; Horton v. Hoyt, 11 Iowa, 496; Harness v. Chesapeake & 0. C. Co., 1 Md. Ch., 248; Ross v. Elizabeth- Town, etc., R. Co., 1 Green Ch., 422; Powers v. Bears, 12 Wis., 213; Morris & E. R. Co. v. Hudson Tun- nel R. Co., 10 C. E. Green, 384; Folley V. City of Passaic, 11 C. E. Green, 216; Murdock v. Prospect P. & C. I. R. Co., 73 N. Y., 579; Armstrong v. Waterford & L. R. Co., 10 Ir. Eq., 60; Western Mary- land R. Co. v. Owings, 15 Md., 199; Carpenter v. Grisham, 59 Mo., 247; Bohlman v. Green Bay & L. P. R. Co., 30 Wis., 105; Bohlman r. Green Bay & M. R. Co., 40 Wis., 157; Ste- vens V. Erie R. Co.^ 6 C. E. Green, 259; Cobb v. Illinois & St. L. R. Co., 68 111., 233; Southern R. Co. v. B., S. & N. 04 R. Co., 131 Ala., 663, 29 So., 191; Hodges v. S. & R. R. Co.. 88 Va., 653, 14 S. E., 380; Pratt ('. Roseland R. Co., 50 N. J, Eq., 150, 24 Atl., 1027. And see Browning V. Camden & A. R. Co., 3 Green Ch., 47; Bonaparte v. Camden & A. R. Co., Baldw., 227; Penrice v. Wallis, 37 Miss., 172; New Central Coal Co. V. George's Creek Coal & Iron Co., 37 Md., 537; Bensley v. Mount ain, 13 Cal., 306; Midland R. Co. V. Smith, 113 Ind., 233, 15 N. E., 256; Lake Erie & W. R. Co. r. Michener, 117 Ind., 465, 20 N. E., 254; Northern Pacific R. Co. r. Bur- lington & M. R. Co., 2 McCrary, 203; S. C, 4 Fed., 298; East & West( R. Co. V. East Tennessee, V. & G. R. Co., 75 Ala., 275; Coyne v. Warrior S. Ry., 137 Ala., 553, 34 So., 1004. And it was stated by Lord Cottingham, in a recent English case, to be most essential to the interest of the public that such jurisdiction should exist and should be exercised whenever a proper case for it is brought before the court, "otherwise the result may be, that after your house has been pulled down, and a railway substituted in its place, you may have the satisfaction, at a future period, of discovering that the rail- way company were wrong." River Dun N. Co. r. North M. R. Co., 1 Railway Cases, 135. See as to the effect upon the right to an injunc- tion, of a transfer of title to the land in controversy to a rival com- pany or to a person acting at the instigation of a rival company. Piedmont & C. R. Co. r. Speelman, 67 Md., 260, and Ocean City R. Co. r. Bray, 57 N. J. Eq., 164, 37 Atl., 604. CHAP. X.] AGAINST KAIL WAYS. 603 fore regarded as the most appropriate and efficient remedy for the protection of the rights assailed, and for the pre- vention of such irreparable injury as would be likely to result from a continuance of the proposed work.^ Where, therefore, a railway company claims and is attempting to exercise the right of entering upon real estate for the con- struction of its road, under color of law, but without hav- ing complied with the requirements of the statute, an in- junction will be allowed to prevent further proceedings.-*^ And an injunction may be granted to prevent a railway from further occupancy of land for which it has not made compensation, even though the company has actually ten- dered an amount agreed upon by arbitrators chosen under a statute held to be unconstitutional.^ And the rule is 2 Sidener v. Norristown, 23 Ind., pensation or equivalent; his dam- 623. ages are not pecuniary, vide 7 3 Browning v. Camden & A. R. Jolms. Ch., 731; his objects in Co., 3 Green Ch. 47; Bonaparte v. making his establishment were Camden & A. R. Co., Baldw., 227; not profit, but repose, seclusion, Armstrong v. Waterford & L. R. and a resting place for himself Co., 10 Ir. Eq., 60. The grounds and family. If these objects are upon which courts of equity inter- about to be defeated; if his rights fere to prevent railway companies of property are about to bo de- from illegally appropriating priv- stroyed without the authority of ate property have been well stated law; or if lawless danger im- as follows: "The injury com- pends over them by persons act- plained of as impending over his ing under color of law, when the (complainant's) property is its per- law gives them no power, or when manent occupation and appropria- it is abused, misapplied, exceeded, tion to a continuing public use or not strictly pursued, and the which requires the divestiture of act impending would subject the his whole right, its transfer to the party committing it to damages in company in full property, and his a court of law for a trespass, a inheritance to be destroyed as ef- court of equity will enjoin its com- fectively as if he had never been mission." Baldwin, J., in Bona- its proprietor. No damages can parte r. Camden & A. R. Co., restore him to his former condi- Baldw,, 231. tion; its value to him is not •* Powers r. Bears, 12 Wis., 213 money, which money can replace: And see Shepardson r. Milwaukee nor can there be any specific com- B. & R. Co., 6 Wis., 605. C04 INJUNCTIONS. [chap. X. well established that courts of equity may properly inter- fere in cases of this kind without reference to the question whether the injury complained of is irreparable in its na- ture.^ And the owner of land which is being taken by a railway company for the location of its road, without his consent and without making or tendering compensation, is entitled to an injunction, ex debito justiticu.^ Nor is it necessary that there should be any threat or declared in- tention on the part of the railway company to go on with the work, if it is doing preparatory acts indicating an in- tention to proceed.'^ And where a railway company has been enjoined from the use of land without having made payment or tender of damages as provided in its charter,, and without the consent of the owner, the injunction will not 5 Western Md. R. Co. i\ Owings, son that no irreparable present 15 Md., 199; American Tel. & T. damage is shown, nor is it at all Co. v. Pearce,, 71 Md., 535, 7 L. R. certain that any ever will be done. A., 200; S. C. cited as American But a widely different rule pre- Tel. & T. Co. V. Smith, 18 Atl., 910; vails in cases where a corporation, Pratt V. Roseland R. Co., 50 N. J. having authority to take land on Eq., 150, 24 Atl., 1027; Hodges v. condition that it shall pay for the S. & R. R. Co., 88 Va., 653, 14 S. land before appropriating it, at- E., 380; Birmingham T. Co. v. Bir- tempts to appropriate the land to mingham R. & E. Co., 119 Ala., its own use against the will of its 129, 24 So., 368; Same r. Same, owner but without paying for it. 119 Ala., 137, 24 So., 502, 43 L. R. In that class of cases no irrepara- A., 233; Southern R. Co. v. B., S. ble damage need be shown but the & N. 0. R. Co., 131 Ala., 663, 29 court will exercise its prohibitory So., 191. And see dicta to the same power as soon as it is made to ap- effect in East & West R. Co. v. pear that the corporation is at- East Tennessee V. & G. R. Co., 75 tempting to appropriate the land Ala., 275, and Coyne v. Warrior S. against the will of its owner con- Ry., 137 Ala., 553, 34 So., 1004. In trary to the terms of its charter." Pratt V. Roseland R. Co., 50 N. J. And see, post, § 1273. Eq., 150, 24 Atl., 1027, supra, the c Bohlman r. Green Bay & M. R. court say: "It is obvious that if Co., 40 Wis., 157. this were a suit between private "• Bonaparte v. Camden & A. R. persons, involving nothing but Co., Baldw., 227; New Orleans M. strictly private rights, no injunc- & C. R. Co. r. Frederic, 46 Miss., 1. lion could be granted, for the rea- 'CHAP. X.] AGAINST EAILWATS. 605 usually be dissolved on motion before a hearing upon the merits.^ ■ And a street railway company which owns its right of way may enjoin another street railway company from crossing such right of way until condemnation and proper compensation.^ And upon the same principle as those which govern the granting of injunctions against rail- ways in such cases, relief may be allowed to restrain a tele- graph company from constructing its line over plaintiff's land until condemnation is had and proper compensation made.^^ § 623. Further illustrations. In conformity with the gen- ■eral principles laid down in the preceding section, it is held that where a railway company neglects and refuses to pay the damages properly assessed against it for the right of way over complainant's land, and proceeds to con- struct its road over complainant's premises, or continues to operate its road over the land in question, an injunction will be allowed uiltil payment has been made of the damages assessed.^ 1 And where the company is proceeding, under <;laim and color of right, to permanently locate its road ■over one's land without having made any compensation there- for, equity will interpose to prevent the construction of the road.^- So the construction of a railway track upon one's land without making compensation therefor and with- out condemning the right of way, and without the owner's permission, may be enjoined as an irreparable injury, espe- cially when the digging and removal of the sand and soil will endanger complainant's property by turning the cur- rent of a river over his land.^" 8 Ross r. Elizabeth-Town R. Co., n Richards r. Des Moines V. R. 1 Green Ch., 422. Co., 18 Iowa, 259; Freshwater v. •■> Birmingham T. Co. v. Birming- Pittsburg, W. & K. R. Co., 6 West ham R. & E. Co., 119 Ala., 129, 24 Va., 503. So., 368. 12 Sidener r. Norristown T. Co., 10 American Tel. & T. Co. v. 23 Ind., 623. And see Stevens v. Pearce, 71 Md., 535, 7 L. R. A., Erie R. Co., 6 C. E. Green, 259. 200; S. C. cited as American Tel. is Cobb r. Illinois & St. Louis R. & T. Co. r. Smith, 18 Atl., 910. 606 INJUNCTIONS. [chap. X. § 624. Statutory remedy to be first exhausted. The gen- eral doctrine as above stated is to be accepted with this qualification : that where a statutory remedy is provided for obtaining damages for private property taken in the con- struction of roads or railways, or for the relief of such per- sons as consider themselves aggrieved in the assessment of damages for their property taken, such statutory remedy must first be exhausted before equity will extend its protec- tion.^* Thus, where a statute provides a mode of obtaining damages for property taken for the use and construction of a railway, but the owner of the land has neglected to avail himself of the mode of relief thus pointed out, he will not be allowed to enjoin the construction of the road because of the non-payment of damages.^ ^ § 625. When occupation or use of road enjoined. So jeal- ous are courts of equity in protecting the rights of land owners against the unauthorized occupation of their prem- ises in the construction of railways, without just compen- sation being first made therefor, that the preventive relief in this class of cases is frequently extended to restraining the further occupation of the premises or the operation of the road after its construction. ^"^ Thus, where a railway company is wrongfully in possession of complainant's prem- Co.. 68 111., 233. And it is said by R. Co., 18 Iowa, 259; Hibbs v. Chi- the court, obiter, that an injunc- cage & S. W. R. Co., 39 Iowa, 340; tion may also go in such case upon Murdock r. Prospect P. & C. I. R. the ground that the company in Co., 73 N. Y., 579; Evans r. Mis- doing the* act complained of is ex- souri, I. & N. R. Co., 64 Mo., 453; ercising power not conferred by Perks p. Wycombe R. Co., 3 Gif., its charter. 662; White v. Nashville & N. R. 14 Nichols r. Salem, 14 Gray, 490; Co., 7 Heisk., 518; Provolt r. Chi- New Albany & S. R. Co. v. Con- cago, R. I. & P. R. Co., 69 Mo., nelly, 7 Ind., 32. And see Parham 633; Kendall r. Missisquoi & C. R. r. Justices, 9 Ga., 341. R. Co., 55 Vt., 438; Stolze v. M. & '•• New Albany & S. R. Co. v. L. W. R. Co., 104 Wis., 47, 80 N. W., Connelly, 7 Ind., 32. 68. See also Kittell /;. Missisquoi i« Richards r. Des Moines Valley R. Co., 56 Vt., 96. CHAP. X.] AGAINST RAILWAYS. 607 ises, having taken possession and constructed its road with- out title, it may be enjoined from longer continuing in possession or carrying on its works until proper compen- sation is ascertained and paid.^'^ So it is proper to restrain the continuous unlawful use of plaintiff's land by operat- ing a railroad over it, when the defendant company has not taken the necessary proceedings to acquire title under the laws of the state, and when it has no grant from plaintiff and no right to the occupancy of his premises.^ ^ And after proceedings have been instituted by a railway company for the condemnation of land for its right of way, the lessee of the company may be enjoined from operating its road over the land condemned until payment of the damages is made, since the lessee can acquire no greater rights than were enjoyed by the lessor.^ ^ §626. Injunction allowed on failure to pay judgment; laches. It is also held, where the charter of a railway com- pany authorizes it, upon deposit or tender of the amount found due by the commissioners to the land owner for the condemnation of his land, to proceed with the construction of its road, and the company makes such deposit, but the land owner excepts to the report of the commissioners and procures another assessment of damages and judgment thereon, the railway company having in the meantime com- pleted its road over the premises and being insolvent, that the company may be enjoined from operating its road in default of payment of the judgment. Under such circum- stances, the land owner, having fully exhausted the statu- tory method of obtaining redress, is properly entitled to the aid of equity for his protection.'-*^ But where, notwithstand- 1" Perks i\ Wycombe R. Co., 3 20 Evans v. Missouri, I. & N. R. Gif., 662. Co., 64 Mo., 453. See also Provolt 18 Murdock v. Prospect P. & C. r. Chicago, R. I. & P. R. Co., 69 I. R. Co., 73 N. Y., 579. Mo., 633; Gammage v. Georgia I'-' Hibbs c. Chicago & S. W. R. Southern R. Co., 65 Ga., 614. Co., 39 Iowa, 340. €08 INJUNCTIONS. [chap. X. ing the failure or refusal of the railroad to pay the judg- ment rendered against it, the land owner has permitted it to take forcible possession of his land and to construct its road and to operate it four years before seeking to enjoin, the right to the relief will be barred by the owners laches as against the superior rights of the public.-^ § 627. Specific performance of vendor's lien. In an ac- tion by the vendor of lands which have been sold to a railway company for the purposes of its road to enforce specific performance of the agreement and for a vendor's lien upon the premises sold, equity will not grant an injunc- tion before the hearing to restrain defendant from operat- ing its road over the premises in question.22 Such a case is regarded as being an appropriate one for the appointment of a receiver rather than for relief by injunction. And the land owner having obtained a decree for the specific per- formance of the contract of sale, and declaring his vendor's lien upon the premises for the balance of unpaid purchase- money, while he will not be allowed to enjoin the company from running its cars over the land or from using it, may have a receiver to preserve the property and render it profitable for the benefit of all parties in interest, the com- pany being insolvent.^s "Where, however, the land has be- come unsalable, a vendor who has obtained a decree against an insolvent company for the enforcement of his vendor's lien may restrain the company from operating the road or continuing in possession of the land, in default of payment of the amount due.^^ § 628. Requisites of bill. Although the right of a land owner to restrain a railway company from taking perma- 21 Midland R. Co. v. Smith, 135 100; Munns r. Isle of Wight R. Co., Ind., 348, 3.^ N. E., 284. L- R- 5 Ch., 414. ■.;■- Latimer v. Aylesbury & B. R. -•' Munns r. Isle of Wight R. Co., Co., 9 Ch. D., 385; Pell r. North- L. R. 5 Ch., 414. ampton & B. R. Co., L. R. 2 Ch., ~* Allgood r. Merrybent & D. R. Co., 33 Ch. D., 571. CHAl'. X.J AGAINST RAILWAYS. 609 nent possession of his land withont a legal determination of the amount due him as compensation, and without tender or payment of such amount, is unquestioned, yet to entitle him to such relief it must clearly appear that the company threatens or intends to take possession of the land without such payment. And when a bill is lacking in such aver- ment it can not be supported by the court by inference, and a demurrer because of such omission will be sustained.-^ j; 629. Contest as to title, injunction denied. Nor will re- lief by injunction be granted in the class of cases under con- sideration, when the question involved is a mere naked ques- tion of adverse title between the parties. Where, thereforaf- the railway company itself claims title to the land in con- troversy, an injunction will be denied when it is not shown that an action of ejectment or trespass will not afford all neces- sary relief.-*^ So where a railway company, acting in good faith and by permission of the person in possession and claiming title as devisee for life of real estate, has entered upon the premises and - constructed the greater part of its road-bed, it will not be enjoined from proceeding at the suit of _ persons claiming as remainder-men, but whose title is disputed, the railway company offering to deposit in court a sufficient sum to compensate complainants for any inter- est they may have in the premises.^'^ And a preliminary in- junction is properly dissolved where the defendant proves title and possession to the locus in quo, while the plaintiff offers no proof either of title or of possession. -^ §630. Construction of second track; injunction denied when remedy in ejectment. Where a railway company has constructed its track over complainants' premises without 25 Deidrichs v. The Northwest- Covington & M. R. Co., 77 Ga., ern Union R. Co., 33 Wis., 219; 322, 2 S. E., 555. East & West R. Co. v. East Ten- 27 Lanterman v. Blairstown R. nessee, V. & G. R. Co., 75 Ala., 275. Co., 28 N. J. Eq. (1 Stew.), 1. 2fi Webster r. South-Eastern R. -'s Patterson v. Scranton & F. C. Co., 1 Sim. N. S., 272; Davis v. R. Co., 129 Pa. St., 109, 18 At!., 563. 39 610 INJUNCTIONS. [chap. X. authority, and is about to construct another track over the same premises, also without authority, and without having made compensation therefor to the owner, an injunction will be granted to restrain the construction of the second track. But in such case, the first track being already completed and the cars running thereon, .an injunction will not be granted to prevent the cars from running when an action of ejectment and for mesne profits will afford ample relief.^^ § 631. The doctrine in West Virginia. The right to relief in the class of cases under consideration is sometimes affected by legislation. Thus, in West Virginia it is held under the statutes of the state that an injunction will not lie at the suit of a property owner to restrain the operations of a railway company charged with having entered upon and taken possession of plaintiffs' land without authority, when it is not averred that the company at the time of filing the bill was transcending its authority or was about to do so, or that it was insolvent or about to do an injury to plain- tiffs' property which could not be compensated in dam- ages.^^ § 632. Effect of contract as a bar to injunction. While the jurisdiction of equity to prevent by injunction the use of private property for railroad purposes without compensation is, as we have already seen, freely exercised, a different case is presented when the owner has contracted to convey a right of way to the railway company, and no breach of the contract has occurred on the part of the company. In such case, the owner of the land by his contract of sale waives his constitutional right to insist upon compensation before his land is taken, and he will be held to abide by the terms of his contract when there has been no breach upon the part 20 Stevens v. Erie R. Co., 6 C. E. Same v. Bobbett, lb., 138. See, as Green, 259. to the governing statute in such ■■■<> Chesapeake & O. R. Co. v. Pat- case, Code of West Virginia, ch. ton. r, W'^st Va.. 234. And see 42, sec. 20. CHAP. X.] AGAINST RAILWAYS. 611 of the railway company. Where, therefore, a land owner has contracted to convey a right of way to a railway company upon certain conditions and has put the company into pos- session and it is proceeding with the construction of its line, it will not be enjoined by the owner from the use of the land when it has not violated any of the conditions of the contract.^^ § 633. Non-compliance with contract by company no ground for injunction. So, also, the non-compliance by a railway company with its contract for the payment of dam- ages to the owner of the land, who has voluntarily con- veyed the right of way to the company upon its promise to pay, constitutes no sufficient ground for an injunction, even under a statute authorizing injunctions against railways to prevent their use of private property without compen- sation.2- Such a statute is to be construed as applying only to cases where the property is appropriated by the road without consent of the owner, and he having voluntarily conveyed the right of way is barred from asserting his claim to relief in equity, the remedy being at law upon the agree- ment of the company to pay for the land taken.^^ So whore the owner of real estate has permitted a railway company to take possession of and to construct its road over his land, taking from the company a bond for the payment of the purchase money at a given day, the owner will not be al- lowed to enjoin the company from continuing in possession upon a failure to pay the bond.^^ And it may be laid down as a general rule that the violation or non-performance by a railway company of its contracts with reference to the con- struction of its road constitutes no ground for the interfer- ence of equity to restrain such construction. In all such 31 Baltimore R. Co. v. Highland, 3^ Id. 48 Ind., 381. 34 Peii v. Northampton & B. J. 32 Vilas V. Milwaukee & M. R. R. Co.. L. R. 2 Ch., 100. Co., 15 Wis., 233. 612 INJUNCTIONS. [chap. X. cases the remedy at law for violation of contract is ample, and equity will not entertain jurisdiction."^' § 634. Further considerations as to effect of contracts. It is also held, where a railroad company has entered upon and taken possession of real property under a license or contract from the owner, that it may enjoin him from retaking pos- session of the premises, even though the company has not complied with its contract as to the consideration for the license or privilege ; although the injunction, in such case, will not be permitted to prejudice the rights of the grantor of the premises to a specific performance of the contract.-'"' And where a railway company has received from a land owner a contract to convey a right of way, and the com- pany has fully complied with the contract on its part, it is entitled to maintain a bill for specific performance. And upon such bill it may have the aid of an injunction to restrain the grantor from proceeding at law to procure an assess- ment of damages for the right of way.*'''^ Where, however, a railway company has agreed with the owner to submit the question of damages for property taken to arbitration, it will not be permitted to enjoin him from asserting and ex- ercising his ownership over the premises so long as it is i^ default in the payment of the sum agreed upon by the arbitrators; in such case the company will itself be enjoined from using the premises until the amount is paid.-'*^ And when a land ownei- grants to a railway company the right to construct its road across his land, without defining the limits of such right of way, and the company locates its road upon a given route through such land, such selection and use, acquiesced in by the grantor, will be held equivalent to fixing the exact location of the i-ighl of way granted. :'•"■ Gallagher r. Fayette Co. R. ■■" Chicago & S. W. R. Co. v. Co., 38 Pa. St., 102. Swinney, .38 Iowa, 182. :i'i Williamstoii & T. II. Co. r. *'< Stewart /■. Raymond R. Co., 15 Hat tie, 66 N. C. i')40. Miss., 568. CHA]'. X.J AGAINST RAILWAYS. 613 lu such case, the company or its successors may be restrained from afterward takin^' without compensation another portion of the land not embraced in such selection.'^'-* s; 635. Property owner on street, when entitled to in- junction against construction of railway; joinder of owners as plaintiffs. The doctrine of relief by injunction to prevent the taking of private property for a right of way, as thus far discussed, has relation only to an actual taking of prop- erty in the construction of a railway, and not to cases where the injury sustained consists in the construction of a rail- way through a public street and to the consequent injury resulting therefrom to lot owners abutting on such street. As regards the latter class of cases, while the adjudicated cases are far from harmonious, the rule may be considered as well established by the clear weight of authority, as well as upon principle, that adjacent proprietors, whose lands abut upon a street and who own the fee to the center of the street, subject only to the public easement for use as a highway, may enjoin a railway company from constructing and operating its road upon the street in front of their premises until due compensation has been made for the damages sustained. In such case, the dedication of the street by the owner to the public use as a highway is not a dedi- cation to the use of the railway company, the two uses being essentially different. The railway company can not, there- fore, build upon the highway without compensation to the owner, and the injury sustained by an attempt so to do being in the nature of a continuing trespass, an injunction is the appropriate remedy.^*' The ownar of the fee in such ^9 Warner v. Railroad Co., 39 Barb., 494; Langabier p. Fairbury. Ohio St., 70. P. & N. R. Co., 64 111., 243; Bond 40 Williams v. New York C. R. p. Penn. Co., 171 111., 508, 49 N. B., Co., 16 N. Y., 97, affirmed in Hen- 545; Davenport Bridge R. Co. v. derson v. New York Central R. Johnson, 188 111., 472, 59 N. E., Co., 78 N. Y., 423, affirming S. C, 479; Rock Island & P. R. Co. v. 17 Hun, 344; People r. Law, 34 Johnson, 204 111.. 488, 68 N. E., 549; 614 INJUNCTIONS. [chap. X. 3ase, having title to the center of the street, subject only to the public easement, the legislature can not appropriate the street to any other use, or subject it to any additional servitude, without compensation to the owner; and the con- struction and operation of a railway through the street in front of complainant's premises, without his authority and ^ without making compensation for the damages, is such an additional servitude, which equity may enjoin.^i So a prop- erty holder upon a street in an incorporated town may have an injunction to prevent a railway company from taking forcible possession of the street and laying its track thereon, without having taken any measures to pay or estimate the damages for the injury resulting to complainant from such occupancy of the street, the bill showing that the railway will greatly injure and depreciate complainant's prop- erty.^- And since the interests of abutting owners are com- mon and there is but a single object to be accomplished by Harrington v. St. Paul & S. C. R. Riedinger v. Marquette & Western Co., 17 Minn., 215; Street Railway R. Co., 62 Mich., 29, 28 N. W., 775; V. Cumminsville, 14 Ohio St., 523; Ward v. Detroit, M. & M. R. Co., 62 Railway Co. 4:. Lawrence, 38 Ohio Mich., 46, 28 N. W., 775, 785; Du- St., 41; Mikesell v. Durkee, 34 bach v. Hannibal & St. J. R. Co., Kan., 509, 9 Pac, 278; Hodges v. 89 Mo., 483, 1 S. W., 86; O'Connell S. & R. R. Co., 88 Va., 653, 14 S. E., v. Chicago T. T. Co., 184 111., 308, 380. But see, contra, Spencer v. 56 N. E., 355. Point Pleasant & 0. R. R. Co., 23 ^i Harrington v. St. Paul & S. C. West Va., 406; Campbell v. Point R. Co., 17 Minn., 215. And in this Pleasant & O. R. R. Co., 23 West case, the facts found by the court Va., 448; Smith v. Point Pleasant upon the hearing showing that the & 0. R. R. Co., 23 West Va., 451; operation of the road was a nui- Hale V. Point Pleasant & 0. R. R. sance in fact to the adjacent pro- Co., 23 West Va., 454; Texas & prietors, a conditional injunction Pacific R. Co. V. Rosedale Street was granted agaiist the operation R. Co., 64 Tex., 80; Buchner v. of the road, the injunction to issue Chicago, M. & N. R. Co., 56 Wis., if the company did not forthwith 403, 14 N. W., 273. And see Gray institute and promptly prosecute V. Fir.st Division St. P. & P. R. proceedings for condemnation. Co., 13 Minn., 315; Hodges r. Bal- •»- Langabier v. Fairbury, P. & N. dmore U. P. R.. Co., 58 Md., 603; R. Co., 64 HI., 243. CHAP. X.] AGAINST RAILWAYS. 615 all, they may unite as co-complainants in a single bill for an injiinction.*'^' § 636. Restrictions upon the doctrine. Where, however, the railway company has been induced to construct its road through a street in front of complainant's premises by his express consent and license, and has expended large suras of money in such construction, he will not be permitted to en- join the operation of the road."*^ And in cases of this na- ture the relief is allowed only in behalf of the property holders themselves, and the people, being the aggregate body politic, having no property traversed by the line of the proposed road, and therefore having no property rights to be protected, are not entitled to relief by injunction.'*^ So when the owner of a lot abutting on a public street, who owns the fee to the center of the street, subject to the pub- lic easement, seeks to restrain a railway company from operating its line in front of his premises until it shall have made compensation, the relief will not be allowed when it is not alleged that the company claims or asserts a right to the use of the soil.'*" Nor will the relief be granted upon mere general allegations of irreparable injury, but such facts must be stated as to show that the apprehensions of injury are well founded.^''' So it is essential that the property owner should be prompt in availing himself of his rem- edy; and when, with full knowledge of the facts, he delays applying for an injunction until after the track is laid and in operation, his own laches may estop him from relief.** And the court in this class of cases, balancing the relative convenience and inconvenience to the parties, has dissolved the injunction upon the depositing by defendant of a suf- 43 Taylor v. Bay City S. R. Co., Ind., 178; Roelker v. St. Louis R. 80 Mich., 77, 45 N. W., 335. Co., 50 Ind., 127. 44 Murdock v. Prospect Park & 47 Payne v. McKinley, 54 Cal , C. I. R. Co., 10 Hun, 598. 532. 45 People r. Law, 34 Barb., 494. 4.s Osborne & Co. v. Missouri Pa- 48 Cox V. Louisville R. Co., 48 cific R. Co., 37 Fed., 830. 616 INJUNCTIONS. [chap. X. ficient sum in court to indemnify plaintiff for the probable injury to his property."*'^ And where the court, considering the relative convenience and inconvenience of the parties, concludes from the averments of the answer that the benefit to the plaintiff' arising from a preliminary injunction would be slight as compared with the injury to the public result- ing from the granting of the writ, a preliminary injunction is properly dissolved; but inasmuch as the defendant may not be able to sustain the allegations of his answer by proof, it is erroneous for the court, upon dissolving the injunction, to dismiss the bill for w^ant of equity.'^" § 637. Distinction as to ownership of fee in street. A dis- tinction is also taken between cases where the lot owner- adjacent to a street owns the fee to the center of the street, subject only to the public easement or servitude, and cases ■where the fee of the street is in the municipality and where permission or license has been duly obtained from the munici- pal government to construct a raihvay through the street. And while it is conceded that in the former class of cases equity may properly enjoin the construction of a railw^ay through the street, at the suit of an abutting property owner, in the latter class the relief will be withheld. Where, there- fore, the fee of the street is in the municipal corporation and not in the lot owner abutting upon the street, he can not enjoin the use of the street in front of his premises in the construction or operation of a raihvay because of non- payment of damages sustained by him, when such use of the street is authorized by the charter of the railway company and by permission of the municipal authorities.'^^ And when 4n Columbus & Western R. Co. v. I. R. Co. r. Schertz, 84 111., 135: Wltherow, 82 Ala., 190, 8 So., 23. Mills r. Parlin, 106 111., 60; Penn •'" Mobile & M. R. Co. v. Ala. M. Mutual Life Ins. Co. v. Heiss, 141 R. Co.. 116 Ala.. 51, 23 So., 57. 111., 35. 31 N. E., 138, 33 Am. St. M Stetson V. Chicago & E. R. Co., Rep., 273; Corcoran v. C, M. & N. 75 111.. 74: Patterson r. Chicago. D. R. Co., 149 111.. 291, 37 N. E., 68; & V. R. Co. lb., 588; Peoria & R. Osborne r. Missouri Pacific R. Co., CHAP. X. ] AGAINST KAILWAYS. 617 a railway company is about to build a side track in a street, in front of its own premises, under a proposed ordinance from the city, the owners of property located in the vicinity but not abutting upon the proposed improvement can not enjoin such construction, but will be left to their remedy in damages in an action at law.''- § 638. Abandonment of awaxd, effect of. Where commis- sioners have made an appraisement and an award of damages to the property owner for injuries to his land about to be taken for the use of a railway, and an agreement of settle- ment is effected upon the basis of such award, but the award is based upon a plan of construction which is subsequently changed and abandoned by the company, and a new plan is adopted resulting in much greater injury to complainant's premises, he is entitled to an injunction against the con- struction of the road as proposed until due compensation shall be made for the increased damage resulting from the change of plan.''^^ § 639. Notice of meeting of commissioners necessary. Under statutory proceedings to fix the amount of compen- sation for land taken by a railway company in the construc- tion of its road, it is held that notice to the land owners of the time and place of meeting of commissioners appointed by law to determine the amount of compensation is neces- sary. And a failure upon the part of the railway company to give such notice is, therefore, held to afford sufficient ground for enjoining the railway company from proceeding to acquire the lands.-""'^ But a property owner can not en- join a railway company from taking possession of his land and constructing its road thereon, because of want of notice 147 U. S., 248, 13 Sup. Ct. Rep., ■'■■■ Carpenter v. Easton & A. R. 299; Burrus v. City of Columbus, Co., 9 C. E. Green, 249. 105 Ga., 42, 31 S. E., 124. ■'* New Orleans, M. & C. R. Co. ^2 Truesdale r. Peoria Grape v. Frederic, 46 Miss., 1. But see Sugar Co., 101 111., 561. Wilson r. Baltimore & P. R. Co., 5 Del. Ch., 524. 618 INJUNCTIONS. [chap. X. of the condemnation proceedings, when although he had no notice of the original proceeding, he nevertheless appealed from the judgment, since such appeal is held to operate as a waiver of the defect as to the jurisdiction of his per- son 5.5 § 640. Failure to construct cattle gaps. Where the owner- of lands has conveyed to a railway company a right of way through his premises, upon a verbal assurance that the company would construct the necessary "cattle gaps" for the passage of cattle, a failure on the part of the com- pany to comply with such agreement will not warrant an injunction to prevent the operation of its road until the agreement is complied with, since the indirect effect of such relief would be to compel the company to construct the cat- tle gaps, and the power thus to enforce a specific construction is one which is rarely exercised by a court of equity.^^ § 641. Railway enjoined from taking land for subsidiary purposes. It is also held, where a railway company is by its act of incorporation authorized to take and use such lands as are necessary for its railway purposes, that it is not there- by authorized to take compulsorily and permanently lands which are only to be used for subsidiary purposes, such as excavating materials therefrom for repairing and embank- ing its own road, or for the construction of a subsidiary road, and that an injunction may be granted to restrain the company from taking proceedings to procure such lands. ^" § 642. Use of road by another company. A land owner whose property has been taken by a railway company for the construction of its road, and who has obtained a judg- ment for damages therefor, is not entitled to enjoin another company, the successor of the former, from using the road. •'.r. Rheiner v. Union D. S. R. & T. ^'- Eversfield v. Mid-Sussex R. Co., 31 Minn., 289, 17 N. W., 623. Co., 3 De Gex & J., 286. affirming •-."Cooli r.. North & South R. Co, S. C, 1 Gif., 1.53; Dodd r. Salis- 46 Ga., 618. bury & V. R. Co., 1 Gif., 158. HAP. X.] AGAINST EAILWAYS. 619 And the reason for refusing the relief in such case is found in the fact that, if complainant still has title to the prop- erty, his remedy is in ejectment; and if he has no title, his judgment stands in lieu thereof, and he may pursue his legal remedy."^ * It has been held, however, that where a foreign railway company is using by sufferance the line of a domestic company, it may be enjoined from using that poition of the line running through plaintiff's land until the damages assessed for right of way are paid.^'-* § 643. Laches and acquiescence of property owner. As in all cases of the exercise of the strong arm of equity by -in- junction, the right to the relief may be lost by one's own negligence and delay in seeking protection. And where the owner of land over which a railway has been constructed has stood quietly by and neglected to insist upon compen- sation at the time his land was taken, and has waited until the road was in full operation before asserting his rights, he will not be permitted to restrain its operation, his only remedy being to have his damages assessed and enforced against the railroad.^^ In such case an injunction, if granted at all, should only be allowed as a last resort, and after all ss Remshart v. The Savannah & son, 21 Fla., 146; Griffin v. Au- Charleston R. Co., 54 Ga., 579. gusta & K. R. Co., 70 Ga., 164; Or- 59 Holbert v. St. Louis, K. C. & gan v. M. & L. R. Co., 51 Ark., 235, N. R. Co., 45 Iowa, 23. 11 S. W., 96. And in Goodin i: Cin- 60 Hentz v. Long Island R. Co., cinnati R. Co., 18 Ohio St., 169, the 13 Barb., 646; Erie R. Co. v. Dela- court say, Welch, J.: "Where a ware R. Co., 6 C. E. Green, 283: party stands by, as we must pre- Goodin v. Cincinnati R. Co., 18 sume the plaintiffs to have done Ohio St., 169; Midland R. Co. v. in the present case, and silentlv Smith, 113 Ind., 233, 15 N. E., 256; sees a public railroad constructed Sherlock v. Louisville, N. A. & C. upon his land, it is too late foi R. Co., 115 Ind., 22, 17 N. E., 171: him, after the road is completed. Louisville, N. A. & C. R. Co. v. or large sums have been expended Beck, 119 Ind., 124, 21 N. E., 471; on the faith of his apparent acqui- Porter v. Midland R. Co., 125 Ind., escence, to seek by injunction, or 476, 25 N. E., 556; Midland R. Co. otherwise, to deny to the railroad i\ Smith, 135 Ind., 348, 35 N. E., company the right to use the prop- 284; Pensacola & A. R. Co. t'. Jack- erty. Considerations of public 620 JNJUNCTIONS. [chap. X. ordinary means of relief have proved ineffectual."^ And where the owner of real estate has invited a railway com- pany to enter upon his land and has promised a right of way, though his promise, being verbal, is not binding, yet if he allows the company to go on with the construction of its road, he can not afterward restrain the use of the track over his land until compensation is made.**- And where a company has been permitted under claim of right for twenty years to occupy the street of a city fronting complainant's premises, without objection or remonstrance, and by such long acquiescence has been induced to enter into a contract with the city, binding itself to build a depot and platform in such manner as will cause but little inconvenience to complainant in addition to that arising from defendant's track, an injunction will not be granted to restrain the erection.*'^ So a railway company has been allowed to en- join the prosecution of an action of ejectment for a strip of land over which its road was constructed, the propert}^ owner having acquiesced in such construction and operation of the road for a period of twenty years.""* And where a telegraph company had constructed its lines over the lands in question while they were owned by plaintiff's grantor, and plaintiff' permitted more than two years to elapse after policy, as well as recognized prin- ly interested in the road, as stock- ciples of justice between parties, holders and creditors, have a right require that we should hold in to insist on the application of the such cases that the property of rule that he who will not speak the owner can not be reclaimed, when he should, will not be al- and that there only remains to lowed to speak when he would." him a right of compensation. The '■! Hentz v. Long Island R. Co., injunction in the present case 13 Barb., 646. might have been sought at the first "'^ Pettibone r. La Crosse, etc., 14 known attempt, or even threat to Wis., 443. despoil the canal, or to construct '•- Higbee r. Camden & A. R. & the railroad upon its line. The T. Co., 5 C. E. Green, 485. omission to do so is an implied •"-« Paterson, N. & N. Y. R. Co. c. assent. The work being completed, Kamlah, 42 N. J. Eq., 93, 6 Atl., the public, as well as those direct- 444. CHAP. X.] AGAINST EAILWAYS. 621 acquiring title before seeking relief, his laches was held a sufficient bar to an injunetion.^'^ But where a railway com- pany, after constructing its road Upon plaintiff's land, has become hopelessly insolvent, mere delay or inaction upon the part of the plaintiff in not having sooner sought equit- able relief will be no bar.'''*'' i; 644. Company not enjoined from condemnation pro- ceedings. Equity will not restrain a railway company from proceeding with an action in a court of competent jurisdic- tion to condemn lands for the use of its road, upon grounds of objection which are available and may be urged in the court in which the condemnation proceedings are pending; it being sufficient ground for refusing to interfere by in- junction in such case that there is ample remedy at law.®''' Nor will a railway company be enjoined from prosecuting proceedings by condemnation to acquire title to real estate necessary for the purposes of its incorporation, in the ex- ercise of the right of eminent domain, upon the ground of the unconstitutionality of the statute authorizing such right, when that question can be passed upon the adjudicated in the condemnation proceedings themselves before any injury can occur to the property holder.*"^ So equity will not en- join a sheriff' from summoning a jury to assess damages under condemnation proceedings about to be instituted by a railway company upon the ground that the land sought to be condemned is already devoted to a public use, since that objection may be raised equally as well as a defense to the condemnation suit.*"'^ And the defendant land owner can not enjoin proceedings by a railway company to con- demn land for the use of its road, upon the ground that the or- Western Union Tel. Co. v. Jud- etc., v. Baltimore, C. & E. M. P. R. kins, 75 Ala., 428. Co., 81 Md., 247, 31 Atl., 854. And "« Coombs V. S. L. & F. D. Co., 9 see, ante, § 90. Utah, 322, 34 Pac. 248. es Kip v. New York & H. R. Co., 6T Western Maryland R. Co. v. 6 Hun, 24. Patterson, 37 Md., 125; President, «» Waterloo W. Co. v. Hoxie, 89 Iowa. 317, 56 N. W.. 499. 622 INJUNCTIONS. [chap. X. company does not intend to build the road for whieh it is seeking to appropriate the lands, or because proceedings in quo warranto are pending against the company for the for- feiture of its franchise.'^^ § 645. Condemnation of one railway by another. Upon similar principles it is held that where a railway company is seeking by proceedings under laws of the state to con- demn lands of another company under the power of eminent domain, and the defendant company by its cross-bill seeks an injunction upon grounds which would constitute a legal defense to the condemnation proceedings upon the final hear- ing, the plaintiff company will not be restrained from en- tering upon or taking possession of the property which it seeks to condemn, and defendant will be left to make such defense upon the trial of the condemnation suit.'^^ Nor will such proceedings be enjoined upon the alleged ground that the defendant is not acting in good faith for the pur- pose of constructing a railroad but is proceeding solely for the purpose of preventing plaintiff, another railroad com- pany, from constructing its road over the land in question.'^^ A railway company is, however, entitled to the protection of a court of equity by injunction to prevent another com- pany from taking possession of complainant's right of way under a fraudulent proceeding for its condemnation, with- out making complainant a party thereto, and without mak- ing any compensation for the right of way so taken.'^^ § 646. Mill owners enjoined from flooding track. An in- junction is the appropriate remedy to protect a railway com- pany in laying its track over lands which have been prop- erly condemned, by restraining mill owners from keeping the water in their mill dam at such an unusual height as to 70 Aurora & Cincinnati R. Co. v. fornia & N. Ry. Co., 48 C. C. A., 517, Miller, 56 Ind., 88. 109 Fed., 509. 71 California Pacific R. Co. r. 7;t Cincinnati, L. & C. R. Co. v Central Pacific R. Co., 47 Cal., 549. Danville & V. R. Co., 75 111., 113. 72 Eureka K. R. R. Co. r. Cali- CHAP. X.] AGAINST RAILWAYS. 623 flood complainant's track and to prevent its operations. And such an injunction, commanding the mill owners to refrain from raising the water beyond a specified height, is not regarded as a mandatory injunction^* § 647. Abandoned road-bed. Y/here plaintiff, a railway company, claims title to the road-bed of another company under a contract or a lease from the latter company, but has abandoned such road-bed for many years, and it has been in part inclosed and used by adjacent owners, and defendant, a railway company, under a claim of title from some of the adjacent owners, enters upon the road-bed and begins the work of grading and constructing track thereon, it will not be enjoined in the first instance at the suit of the plaintiff company, no injury being shown which can not be compensated in damages at law.'^® § 648. Violation of contract by city. "When a railway com- pany is given a right of way through the streets of a city, upon the undertaking that another company also desiring to lay its track upon the same streets shall be allowed to do so only upon paying the first company one-half the ex- pense of grading, equity may enjoin the payment of the money by the second company to the city authorities in vio- lation of the contract. And in such case the relief may be allowed at the suit of a receiver of the former road, a court of equity being in possession of the road and having jurisdic- tion to stop the fund.'''*' T4 Longwood V. R. Co. v. Baker, T. & W. R. Co., 13 Hun, 60. 12 C. E. Green, 166. t6 Southwestern R. Co. v. Screv- « Troy & B. R. Co. v. Boston, H. en, 45 Ga., 613. CHAPTER XL OF INJUNCTIONS AGAINST WASTE. I. Origin and Natihe of the Jurisdiction § 649 II. Destruction of Timber 671 III. Equitable Waste 680 IV. Parties 686 I. Origin and Nature op the Jurisdiction. § 649. The jurisdiction of recent origin; remedy at common law. 650. Distinction between waste and trespass. 651. Plaintiff's title must be clear; cases where relief refused; facts must be alleged. 652. Title must be established at law. 653. Removal of improvements by defendants and insolvency. 654. Adverse possession; use of land pending ejectment. 655. Threats of waste sufficient; past waste. 656. Injunction not granted against stranger to the title. 657. Relief against vendee in possession. 658. Right of purchaser at judicial sale or of attaching creditor to injunction. 659. Changing character of premises by tenant. 660. Improper tillage; removal of manure; beneficial acts by de- fendant. 661. Retaining injunction pending writ of error at law. 662. Injunction pending action at law. 663. Purchaser under decree enjoined; removal of mineral deposits by tenant. 664. Removal of coal. 665. Insolvency of surety of administrator. 666. When quarrying enjoined; mining enjoined pending ejectment. 667. Diligence required, especially in cases of mines. 668. Injunction before answer. 669. Accounting an incident to the injunction. 670. Accounting may be had without injunction. 670a. Injunction against railway until compensation. §649. The jurisdiction of recent origin; remedy at com- mon law. 'I'lic jiicisdiclion of equity in restraining the com- G24 CHAP. XI. J AGAINST WASTi:. 625 mission of waste is of comparatively modern origin and rests upon the necessity of preventing- irremediable injury. At common law the mode of proceeding was by writ of prohi- bition issuing out of the Court of Chancery, which, if in- effectual, was followed by an original writ of attachment from the same source, returnable in the courts of common law. Originally this proceeding was confined to tenants in dower, tenants by curtesy, and guardians in chivalry, al- though it was afterward extended, by statute, to other per- sons.^ The writ of estrepement was also a common law writ, whose purpose was the staying of waste in any action real, after judgment and before possession delivered. Its use, however, did not, at common law, extend to the case of waste committed by the tenant pendente lite, and it was not until the statute of Gloucester - that its use was enlarged to meet the case of waste pending the suit.-"^ The writ of estrepement being confined to actions real, it became neces- sary, in cases of ejectment, to apply to equity to supply the deficiencies of the common law by restraining waste pend- ing an action of ejectment to try the title, and this would seem to be the origin of the jurisdiction of equity in cases of waste.^ § 650. Distinction between waste and trespass. The dis- tinction between waste and trespass consists in the former being the abuse or the destructive use of property by one who, while not possessed of the absolute title thereto, has yet a right to its legitimate use ; trespass being an injury to property by one who has no right whatever to its use. And an injunction issued pending the trial of the title at law in an action of trespass quare clausum is ancillary or auxiliary to the action at law and follows its fortunes. It follows, 1 Jefferson v. Bishop of Durham, ■■ 3 Black. Com., 227, 228. 1 Bos. & Pull., 120. *2 Story's Eq., § 911; 3 Black. ^ 6 Edw. I., Ch. 13. Com., 227, 228. 40 626 INJUNCTIONS. [chap. XI. therefore, that when plaintiff recovers a general judgment in his action at law, the writ will be made perpetual.^ § 651. PlaintiflF's title must be clear; cases where relief refused; facts must be alleged. It may be laid down as a gen- eral rule that equity will not restrain waste except upon un- questioned evidence of complainant's title, and where defend- ant is in possession, under adverse title, the relief will be re- fused.^ Nor will equity interfere by injunction to prevent waste when complainant's title is not clear, since the relief is granted only when the title is free from disputed And upon a motion for an injunction to stay waste a particular title must be shown by complainant.^ And when there is grave doubt whether an action at law could be maintained for the alleged waste it is proper to refuse a preliminary injunction.'' So when the question of the right to do the thing which it is sought to restrain as waste is doubtful and rests upon the construction of an act of parliament which is doubtful, equity will not grant the injunction in the first instance.^ ^ And when defendants are acting in good faith and for the public 5 Hill f. Bowie, 1 Bland, 593. waste, stating that the defendant « Pillsworth v. Hopton, 6 Ves., claimed by a title adverse to his, 51; Davies v. Leo, lb., 784; Talbot he stated himself out of court as V. Hope Scott, 4 Kay & J., 96; to the injunction." The reporter Poindexter v. Henderson, Walk, adds: "His lordship having in- ( Miss.), 177; Nevitt i?. Gillespie, 1 quired if the bar knew any in- How. (Miss.), 108. "I do not rec- stance, and none being pro- ollect," says Lord Eldon in Pills- duced, would not make the order." worths. Hopton, "that the court has See also Wearin v. Munson, 62 ever granted an injunction against Iowa, 466. But see, contra, Shu- waste under any such circum- brick v. Guerard, 2 Desaus. Eq., stances: the defendant in posses- 616, note. sion: the tenants having attorned: "Lowe i\ Lucey, 1 Jr. Eq., 93; the plaintiff having failed in hi^ Nethery v. Payne, 71 Ga., 374. ejectment: both setting up pre- •'* Whitelegg r. Whitelegg, 1 tenses of title. I remember per- Browne C. C, 58. fectly being told from the bench f> Lurting r. Conn, 1 Ir. Ch., 273; very early in my life, that if the Nethery v. Payne, 71 Ga., 374. plaintiff filed a bill for an account, i" Field r. Jackson, Dick., 599. and an injunction to restrain CHAP. XI.] AGAINST WASTE. 627 benefit, under an act of incorporation from the state, they will not be enjoined while they do not exceed their cor- porate powers, even though they are committing great and lasting injury to complainant's estate.^ ^ Nor will an injunc- tion be allowed where it does not appear that the injury will be destructive to the estate of inheritance or productive of irreparable mischief.*- Nor will mere allegations of irrepar- able injury suffice, but the facts must be shown which go to constitute the injury alleged to be irreparable.^^ And where the injury complained of is susceptible of perfect pecuniary compensation, and one for which satisfaction in damages can be had at law, the injunction will be withheld.*^ So where the right to the premises is in doubt, pending an action of ejectment at law, the relief will not be granted, on the general principle that where the right is doubtful equity will not in- terfere.*'^ And pending an action for the recovery of real property, the title being in dispute, equity will not restrain a defendant in possession from the ordinary and natural use and enjoyment of the premises.*^ And an injunction granted to stay waste pending an action of ejectment at law will be dissolved on denial of complainant's title, especially if he is negligent in trying the title at law.*'^ § 652. Title must be established at law. The jurisdiction of equity in cases of waste is not in derogation of the juris- diction of courts of law, but rather in aid of the legal right. Hence arises the limitation that it will be exercised only when complainant has established or is endeavoring to es- 11 Scudder v. Trenton, Saxt, 694. is Pillsworth v. Hopton, 6 Ves., 12 Hamilton v. Ely, 4 Gill, 34; 51; Field «'. Jackson, Dickens, 599; Amelung v. Seekamp, 9 Gill & J., Storm v. Mann, 4 Johns. Ch., 21. 468. 10 Snyder r. Hopkins, 31 Kan., 13 Bogey V. Shute, 1 Jones Eq., 557, 3 Pac, 367. 180. 1^ Higgins v. Woodward, Hopk., i4Cockey v. Carroll, 4 Md. Ch., 342. 844; Amelung v. Seekamp, 9 Gill & J., 468. 628 INJUNCTIONS. [chap. XI. tablisli his title at law. Aud on au application for an in- junction, defendant being in exclusive possession under color- able title, equity will not sustain the legal estate in the ab- sence of proceedings at law to try the title of complainant.^* And where an injunction has been granted, the title being in dispute, it will be dissolved, no action at law having been undertaken to try the title.^'' Nor wall the injunction be re- tained on the ground that one of the defendants has brought an action of trespass quarc clausum against complainant to determine the legal title, since that is purely a legal ques- tion.2" § 653. Removal of improvements by defendants and insol- vency. But it has been held sufficient to sustain a bill for an injunction to stay waste and prevent the removal of im- provements, that the bill alleges that complainant is the owner and entitled to the possession of the premises, with the im- provements, and that defendants are in possession and threaten to destroy the improvements, and that they are in- solvent and unable to respond in pecuniary damages.-' And where a tenant for life is about to tear down a house for the purpose of erecting a new and better building, the remainder- man is entitled to an injunction restraining such waste.22 1^ Bogey r. Shute, 4 Jones Eq., should have a reasonable time al- 174. In this case an injunction lowed for that purpose. For the was sought on the ground of the court of equity acts in such cases, insolvency of the defendant and not as superseding the jurisdiction injury to the substance of the es- of the courts of law over a legal tate by acts in the nature of de- title, but only in aid of a legal structive waste. The court, Ruffin, remedy, defective because dila- .1., say: "Such a bill can not be tory." sustained against one in exclusive '-'Brown /■. Folwell, 3 Halst. Ch., possession — claiming, colorably at 593. least, the absolute estate, until the -" Wright /•. Grist, 1 Busb. Eq., plaintiff has established his title ai 203. law — or, at all events, an injun(^ -' .Meadow Valley M. Co. r. tion can be granted only when the Dodds, (5 Nev., 261. plaintiff is endeavoring to estal>- -= Dooly r. Stringham, 4 Utah, lish his title at law, and until he 107, 7 Pac, 405. CHAP. XI.] AGAINST WASTE. 629 Where, however, defendant has given ample security for all damages which may be sustained by plaintiff in such case, an injunction Avill be withheld, there being an adequate remedy at law.--"' §654. Adverse possession; use of land pending ejectment. Where reliance is had upon adverse possession to warrant the interference, such possession must be accompanied with a positive and exclusive claim of the entire title. And if complainant's title be subordinate to, or admit the exist- ence of a superior title, such possession, regardless of its- duration, will not be held adverse, and equity will not in- terfere.-"* And pending an action of ejectment to try the: title, defendant will not be restrained from using the land in the ordinary course of agriculture, and clearing off timber and erecting buildings for that purpose.-'^ § 655. Threats of waste sufficient ; past waste. To war- rant the interference it is not essential that actual and serious waste should have been already committed ;^^ although in general equity will only interfere to pre- vent future waste where complainant is remediless at law, or where a discovery is necessary.-'^ And where the waste is trivial, equity wnll not interfere unless an intention to commit further waste is shown.^s But '2 it can be show^n that an intention exists to commit waste, or that threats of its commission have been made, the court may interfere.-*^ And the fact that defendant denies the commission of waste since the filing of the bill will not prevent the granting of the injunction, when he has admitted that he has committed waste.-'^ Nor is it sufficient to warrant the court in dissolv- ing an injunction against waste that the defendant, in his 23 Campbell r. Coonradt, 26 Kan., -• Winship v. Pitts, 3 Paige, 259. 67. -s Coffin V. Coffin, Jac. 71. 2-* Dean r. Brown, 23 Md., 11. -'" Gibson v. Smith, 2 Atk., 182. '^'' Thompson r. Williams, 1 Jones -'o Attorney-General v. Burrows, Eq., 176. Dick., 128. ae Gibson c. Smith, 2 Atk., 182. 630 INJUNCTIONS. [chap. Xf. answer, swears that he has not committed any waste since the filing of the bill, since as he admits the commission of waste before, the court will presume that he may do further waste, and will therefore continue the injunction.^^ Where, however, there is no claim of right to commit acts amount- ing to waste, and no intention to commit such acts, an in- junction should not be granted merely because a tenant in possession had committed waste at some previous time.^- And equity will not enjoin upon a bill charging the commis- sion of past acts of waste only, when there is no averment of any future injury anticipated or threatened, since for past injuries an action at law for damages will afford the appro- priate relief, and equity only enjoins because of a threatened injury in the future.^^ § 656. Injunction not granted against stranger to the title. It is an old and well established doctrine pertain- ing to the jurisdiction of equity by injunction against waste, that it is not exercised as against a stranger to the prem- ises, without interest or title therein, or when no privity exists between the parties to the action, defendants being regarded in such cases as mere trespassers, and as such liable to an action of trespass at law.-^-* Nor will equity in- terfere by injunction upon the ground of waste when defend- dant is a mere stranger, although he has been guilty of a forcible entry, since he may be immediately dispossessed, and equity will not, therefore, interfere.^^' So if the facts do not show privity of title, or irremediable injury, the injunction, if already granted, will be dissolved.^^ And one who has neither privity of estate nor possession, and who has neither •"'1 Anon., 3 Atk., 485. See also Congleton r. Mitchell, 12 32 Crockett r. Crockett, 2 Ohio Ir. Eq., 45. St., 180. '■'■■• Mortimer r. Cottrell, 2 Cox, ST Owen V. Ford, 49 Mo., 436. 205. •■!4 Mogg V. Mogg, Dick., 670; ••'' Georges r. Detmold, 1 Md. Ch., Wrixon v. Condran, 1 Ir. Eq., 380. 371. CHAP. XI.] AGAINST WASTE. 631 established his title at law nor brought ejectment to try the title, is not entitled to an injunction.-'^''' § 657. Relief against vendee in possession. A vendor of real estate who retains title to the land as security for the purchase money may have an injunction against the vendee who is in pos- session and is committing waste where such action results in di- minishing the value of the security and the vendee is alleged to be insolvent.'"^^ So in an action to foreclose a vendor's lien for unpaid purchase money it is proper to enjoin the vendee in possession from the commission of waste, when it is shown that he is insolvent, and has threatened to cut timber, to the material injury of the security .^^ So, where the vendee takes possession of the premises under a bond for title and remains in possession for a period of several years, receiving the rents and profits, but the premises are constantly depre- ciating in value by reason of bad husbandry upon the part of the vendee who is insolvent and in bankruptcy, the deprecia- tion in value being such as to render the premises an inade- quate security for the purchase money still due, the vendee may be enjoined from renting or using the land.^° § 658. Right of purchaser at judicial sale or of attaching creditor to injunction. The authorities are somewhat con- flicting as to the right of a purchaser of lands at a judicial sale, who has not yet received a conveyance under his pur- chase, to enjoin the commission of waste upon the premises. Upon the one hand, it is held that such a purchaser, whose only evidence of title is a certificate of sale, has no such in- terest or title as to enable him to maintain a bill for an injunction against waste before obtaining his deed, when 37 Blackwood r. Van Vleet, 11 so McCaslin r. The State, 44 Mich., 252. Ind., 151. 38 Moses Brothers v. Johnson, 88 ■*" Tufts v. Little, 56 Ga., 139. Ala., 517, 7 So., 146, 16 Am. St. See also Gunby r. Thompson, 56 Rep., 58. Ga., 316; Chappell r. Boyd, lb., 578. 632 INJUNCTIONS. [CHAr. XI, under the statute regulating such sales the judgment debtor is allowed to retain title to and possession of the premises until the statutory period for redemption has expired. The rights of such a purchaser, it is held, are distinguish- able from those of a mortgagee, who may restrain waste, since the mortgagee may be regarded as in the nature of a purchaser, the land mortgaged being specially appropriated to the payment of his debt and the waste lessening his se- curity; but the purchaser at the judicial sale is only a volunteer, without privity with the owner, and equity ac- cordingly leaves both to their legal rights and remedies.**^ Upon the other hand, it is held that it is not necessary that complainant seeking to restrain the commission of waste should have an absolute title in fee to the premises, but that an equitable title may suffice to warrant the interposition of equity. It is accordingly held, in conformity with this view of the nature of the title required, that a purchaser at a sherilf's sale may be allowed an injunction against the commission of waste by the cutting of timber to the seri- ous injury of the premises, even before the sale has been confirmed and a conveyance executed to the purchaser.'*- Indeed, the jurisdiction has been extended even further, and it has been held that an attaching creditor is entitled to the relief for the protection of the estate which he has attached to satisfy his debt, the jurisdiction resting, as in the case of mortgages, upon the necessity of preventing the security from being diminished or impaired.^'^ So where the sale of lands levied upon under execution has been staid by mili- tary order, and waste is being committed, it is competent ■*3 Law i\ Wilgees, 5 Bissell, 1. wise insolvent, complainant at- ■»- Thompson v. Lynam, 1 Del. tached his real estate to secure an Ch., 64. See also Hughlett v. Har- indebtedness upon a promissory ris, 1 Del. Ch., 349. note. Williams, Ch. J., says: "The •<^ Camp V. Bates, 11 Conn., 51. case in principle seems much like In this case defendant being other- that of a mortgage. In both cases CHAP. XI.] AGAINST WASTE. 633 for a court of equity to interfere for the prevention of tlie waste. And in such case the fact that, pending the pro- ceedings for the injunction, the military order ceases to have effect, does not impair the jurisdiction of equity by injunction-^-* But where a judgment creditor whose judg- ment was a lien upon land of his debtor obtained an injunc- tion restraining the debtor from committing waste, and, pending the injunction, purchased the premises at a sheriff's sale under execution upon his judgment, he was denied an accounting in the same suit for the waste committed prior to his obtaining title to the land, title at the time of the commission of waste being regarded as necessary to sustain a right to an accounting in equity.^-'' § 659. Changing character of premises by tenant. A ten- ant for lives may be enjoined from changing the nature of the premises demised, as by converting agricultural land into a cemetery, since this would entirely change the the land is appropriated as secur- ity for the debt. In both cases the creditor has the right to take the land, or resort to other property if it can be found. In both cases the debtor may remove the lien by payment of the debt. In both cases the debtor may deny or disprove the existence of the debt. Why, then, should not a court of chan- cery have the same power to pre- vent waste upon this property in the one case as well as the other? If it is done in the one case, tha'- the security given by the party should not be destroyed, it should be done in the other, that the se- curity given by the law should not be destroyed. Surely the law must be as anxious to guard its own enactments as the provisions of the parties themselves." Refer- ring to the objection that com- plainant was not entitled to the injunction since he was not in pos- session of the property, the court further say: "Here, from the na- ture of the case, no actual posses- sion of the property could be ob- tained by the creditor. But the writ of attachment gave to the creditor the statute privilege, and all the possession that the nature of the case admitted. The prop- erty is left in the possession of the debtor just as in the case of a mortgage; but it is, in view of the law, in the custody of the law itself; and being so, the law must protect those who are reposing upon its care." •1* Webb r. Boyle, 63 N. C, 271. *s Hughlett V. Harris, 1 Del. Ch., 349. 634 INJUNCTIONS. [chap. XI. character of the property.**' But changing the demised premises, which have long been rented and used for stores, into dwellings will not warrant an injunction by the owner of the reversion against an assignee of the lessee, when the lease is for a period of nine hundred and ninety- nine years, such a lease being regarded as a perpetuity, and the improvements or changes having the effect of largely increasing the existing security for the rents. And the party aggrieved in such case will be left to pursue his remedy at law.'*'^ § 660. Improper tillage ; removal of manure ; beneficial acts by defendant. The tillage of farming lands contrary to the established rotation of crops, and contrary to the established usage of that part of the country, is such waste as may be enjoined in equity, the tillage being contrary to good hus- bandry and depreciating the value of the premises.*^ And the lessor of real estate may enjoin his lessee from remov- ing manure from the demised premises which has been made thereon during the tenancy, since the tenant has the right only to use the manure upon the farm, and no right to re- move it as his own property.'*'* Nor will equity refrain from the exercise of its jurisdiction in restraint or waste merely because defendant has done acts beneficial to the property, or because of his assertion that he will improve it after committing the waste.^** § 661. Retaining injunction pending writ of error at law. When a temporary injunction is allowed against the com- mission of waste, the court directing an action at law to be brought, and defendant obtains judgment in the <« Hunt V. Browne, Sau. & Sc, House of Lords, 1 L. R. Jr. Ch. D., 178; Cregan v. Cullen, 16 Ir. Ch., 249, 3 App. Cas. 709. 339. 4s Wilds /;. Layton, 1 Del. Ch., •17 Doherty v. Allman, I. R. 10 226. Eq.. 460, reversing S. C, lb., 362, •»!> Bonnel v. Allen. 53 Ind., 130. and affirmed on appeal to the so Coppinger v. Gubbins, 9 Ir. Eq.. 304. CHAP. XI. J AGAINST WASTE. 635 action at law, it is discretionary with the court of equity to dissolve or retain the injunction during the pendency of a writ of error to the judgment at law. The court may, therefore, in such a case, on balancing the relative danger and inconvenience to the parties retain the injunction until the writ of error is determined, when such course seems to be necessary for the prevention of irreparable injury.^i § 662. Injunction pending action at law. Although the jurisdiction in restraint of waste was originally confined to cases where the relief was sought pendente lite, it has long since been extended to cases where no action at law is pending.^2 The jurisdiction is, however, still exercised in some instances as ancillary to or in aid of an action at law concerning real property, and in Wisconsin, under the legislation and code procedure there prevail- ing, it is held to be proper in an action for the recovery of real property to pray for a temporary or provisional order restraining defendant from committing waste pendente lite?^ And where a preliminary injunction restraining waste is sought in aid of a pending action at law, the plaintiff is not required to make out such a case as will certainly entitle him to a perpetual injunction upon final hearing.^* §663. Purchaser under decree enjoined; removal of min- eral deposits by tenant. A purchaser of real estate under a decree, who has not paid the purchase money, may be en- joined from committing waste, although not a party to the 61 Mountcashell v. O'Neill, 3 Ir. law and prejudicial to the inter- Ch., 619, reversing S. C, lb., 455. ests of the community, or the 52 Denny v. Brunson, 29 Pa. St., rights of individuals," the court 382. And in this case it is held may enjoin the commission of that where the authority of the waste. court to issue injunctions is de- "'S Riemer v. Johnke, 37 Wis., 258. rived from a statute extending its •'''•* Buskirk r. King, 18 C. C. A., jurisdiction to the prevention or 418, 72 Fed., 22. restraining of "acts contrary to 636 iNJUNCTiOKS. [chap. XI, proceedings in which the decree was rendered.-'"'-''' And a ten- ant of a farm on which is a pool fed by a mountain stream depositing in the pool mineral substances of value, may be restrained from removing or disturbing such deposits, com- plainant's right to the mineral substances having been established by a verdict at law in an action against the same defendant.^^ § 664. Removal of coal. The tenant for life of premises containing coal mines which he has leased to defendant will not be allowed to join with the remainder-man in a bill to restrain defendant from taking coal from the mines, although it is alleged in the bill that the lease was made through mis- take and worked a forfeiture of the life estate, the relief being withheld on the principle that equity will not permit a lessor to disaffirm his own lease.^'^ § 665. Insolvency of surety of administrator. In accor- dance with the well settled doctrine denying relief by injunction in all cases where adequate relief may be had at law, it is held that an injunction will not lie against a temporary administrator to prevent the commission of waste, upon the ground of the insolvency of his surety, when the law affords ample remedy by compelling the giv- ing of sufficient security.^'^ §666. When quarrying- enjoined; mining enjoined pend- ing ejectment. Where quarrying is the only use that can be made of the premises, it will not be deemed waste if done in a proper manner. And under such circumstances the injunc- tion will not be continued M^hen the answer denies that the (juari-ying impairs the value of the premises.-'"''^ But where defendant's interest in a (juarry and his right to work it ■'■'•'■' Casamajor v. Strode, 1 Sim. & •">" Wentworth r. Turner, 3 Ves., 4. Stu., 381. -'^ Montgomery v. Walker, 36 in Thomas v. Jones, 1 Y. & C. C. Ga., 515. C, 510. ■■'■* Vervalen r. Older, 4 Halst. Ch., 98. CHAP. XI. J AGAINST WASTE. 637 have expired with the expiration of his lease, he will be restrained from further quarrying."" And the taking of stone by a city corporation from complainant's hill, abutting on the right of way which he had granted to the city for streets, is such waste as equity will restrain-^*^ And an injunction has been granted, upon the application of a re- ceiver over an estate, to restrain one tenant from commit- ting waste by quarrying in a private road pertaining to the premises and common to all the tenants."- So, pending an action of ejectment, defendants have been enjoined from excavating and removing soil in mining upon the premises, the title being in dispute, plaintiff claiming title thereto as agricultural land and defendant claiming title as mineral land."-* § 667. Diligence required, especially in cases of mines. The general doctrine of equity requiring diligence upon the part of one who seeks the extraordinary aid of an injunction for the protection of his rights applies with equal force in cases where the preventive aid of the court is sought against the commission of waste."^ But while dili- gence in the assertion of his rights is indispensable on the part of one who seeks the aid of equity for the prevention of waste, the utmost degree of promptitude is exacted in cases of waste in mines, owing to the peculiar nature of the property."'"' And Avhere complainant, who seeks relief against the commission of waste in the use of mines on premises demised by him, has stood by for many years 60 Ackerman v. Hartley, 4 Halst. 02 Dorman v. Dorman, 3 Ir. Eq., Ch., 476. 385. ••■1 Smith V. City of Rome, 19 Ga., '■•' Hunt v. Steese, 75 Cal., 620, 17 89. But in this case the court Pac, 920. would seem to have gone beyond b^ Barry ??. Barry, 1 Jac. & W., the authority of the adjudicated 651. cases in saying that "an injunc- ""•Norway v. Rowe, 19 Ves., 159; tlon to stay waste has become al- Parrott r. Palmer, 3 Myl. & K., 632. most a matter of course." 638 INJUNCTIONS. [chap. XI, and allowed defendants to expend large sums of money in developing the mines without objection, he will not be allowed an injunction.^^ §668. Injunction before answer. Equity will sometimes interfere by injunction against the commission of waste before answer. And even under the former practice of the English Court of Chancery, when an injunction was not usually granted before answer, the court would in cases of waste, upon reasonable evidence of damage or intended waste, grant an injunction before answer to restrain the commission of waste by a servant or agent, himself having no right in the premises.^'^ § 669. Accounting an incident to the injunction. It is a well established principle of equity jurisprudence that in all cases where a bill for an injunction will lie to restrain waste, an account of and satisfaction for the waste already committed will be allowed, to prevent a multiplic- ity of suits as well as to afford complete redress, without compelling a resort to law.*^^ Where, therefore, a proper 66 Parrott v. Palmer, 3 Myl. & have been allowed to elapse than K., 632. "If there be anything well the number of weeks which would established in this court," says have closed the doors against the Lord Brougham in this case, "it is plaintiff coming to seek an in- that a man who lies by, while he junction." sees another person expend his ^7 Lord Orrery v. Newton, Ca. capital and bestow his labor upon temp. H., 252. But Lord Hard- any work, without giving to that wicke denied an injunction to stay person notice, or attempting to in- waste in digging coal, before an- terrupt him — one who thus acqui- swer iiled, because it appeared esces in proceedings inconsistent that defendant set up a right of with his own claims — when he inheritance in the estate and comes to enforce those claims in said that such injunctions were this court, shall in vain seek for hever granted before hearing, un- its interposition by an injunction, less defendant had only a term in of which the effect would be to the estate and the reversion was render all the expense useless, in plaintiff. which he voluntarily suffered to cs Jesus College v. Bloom, 3 Atk.. be incurred. Here more years 262; S. C, Amb., 54; Ackerman v. Hartley, 4 Halst. Ch., 476. CHAP. XI.] AGAINST WASTE. 639 case is presented for an injunction, an account of the waste already committed and a decree for damages may be had in the injunction suit.^^ Indeed, this would seem to be but the exercise of the ordinary prerogative of equity, that when one resorts to a court of equity for one purpose, his case will be retained until the entire matter is disposed of, upon the principle that the court having jurisdiction of the cause for one purpose will retain it to give general and complete relief, thereby preventing a multiplicity of suits.'^^ And an account for waste committed is considered as a nec- essary incident of the relief against future waste.'^^ And an injunction being refused, as a general rule no account will be allowed for waste already committed.'''^ § 670. Accounting- may be had without injunction. If, however, the waste is of such a nature that the party aggrieved is remediless at law, and would sustain great injury by withholding an account, it will be granted, even though an injunction will not be allowed.^^ And in the case of equitable waste committed by one deceased, an ac- count will be allowed against his assets where an injunction would not be appropriate.'''^ In cases of mines and collieries the account may be allowed regardless of whether an in- junction will lie.'^^ And a tenant in common of a mine is 69 Allison's Appeal, 77 Pa. St., Parrott r. Palmer, 3 Myl. & K., 632. 221; Fleming v. Collins' Adm'r, 2 74 Lansdowne v. Lansdowne, 1 Del. Ch., 230. Madd., 116; Morris v. Morris, 3 70 Jesus College v. Bloom, 3 DeG. & J., 323. Atk., 262; Allison's Appeal, 77 Pa. ^^ Winchester v. Knight, 1 P, St., 221; Fleming v. Collins' Wms., 406; Story v. Windsor, 2 Adm'r, 2 Del. Ch., 230. Atk., 630; Pulteney v. Warren, 6 •?! Ackerman v. Hartley, 4 Halst. Ves., 89. And in Parrott v. Pal- Ch., 476. mer, 3 Myl. & K., 632, Lord ~- Crockett v. Crockett, 2 Ohio Brougham, after reviewing the St., 180, affirming the maxim, "no English cases, observes: "From injunction, no account," announced the whole it may be collected that by Lord Brougham in Parrott v. although, as to timber, there ex- Palmer, 3 Myl. & K.. 632. ists considerable discrepancy, yet "3 Garth v. Cotton, 3 Atk., 751; the sound rule is to make the ac- 640 INJUNCTIONS. [chap. XI. entitled to an account of the profits.'^^' So, too, where there are joint owners of land, one who derives profit from waste committed thereon will be required to account to the other owner.'^'^ But the same laches which will debar complainant from relief by injunction may prevent his obtaining an ac- count, even in cases of mines.'^^ ^ 670 a. Injunction against railway until compensation. Where an elevated railroad company is in possession of a building as tenant of the owner and is proceeding to tear away a corner of the building for the purpose of constructing its elevated railroad, such an act amounts to waste which will be enjoined until condemnation proceedings are brought and compensation made the owner for the appropriation of his property.'^'^ count the incident and not the ^^ Martyn v. Knowllys, 8 T. R., principle, where there is a rem- 145. edy at law; but that mines are to "« Parrott v. Palmer, 3 Myl. & he otherwise considered, and that, K., 632. as to them, the party may have an "» Bass v. Metropolitan W. S. El. account even in cases where no in- Co., 27 C. C. A., 147, 82 Fed.. 857. Junction would lie." 39 L. R. A., 711. ?« Bently v. Bates, 4 Y. & C, 182. CHAP. XI.] AGAINST WASTE. 641 II. Destruction of Timber. § 671. When equity may enjoin the cutting and removal of timber; accounting. 672. Preliminary steps sufficient ground for interference. 673. Irreparable injury must be shown; injunction not granted as to timber already cut. 674. Injunction not allowed for past injuries, nor where defendants claim both title and possession. 675. Illustrations of the relief. 676. Tendency to a more liberal use of the writ; but not allowed in case of disputed title. 677. Further illustrations. 678. Lessee of shooting privileges. 679. Cutting of timber pending ejectment. § 671. When equity may enjoin the cutting and removal of timber; accounting-. The most frequent class of cases in which the aid of equity is invoked for restraining waste is in the cutting and removal of timber from estates of freehold. Pending an action at law to try disputed titles, the cutting and removal of timber will be enjoined when such timber constitutes the chief value of the land, and when it is shown that defendant would be unable to respond in dam- ages.^ And the relief is properly granted although no show- ing of the insolvency of the defendant is made.^ So where complainant avers title in himself and has brought an action of forcible entry, defendant being in possession of the premises, an injunction may be allowed to prevent de- fendant from cutting timber.^ And where both parties claim title, the cutting of timber has been restrained on the principle of bills quia timet^ Nor is it necessary that there should be an actual lis pendens in a court of law, and equity may, in its discretion, enjoin the cutting down and removal of large quantities of timber, where no action is pending.^ 1 Kinsler v. Clarke, 2 Hill Ch., 3 Hicks v. Michael, 15 Cal., 107. 617. * Peak v. Hayden, 3 Bush, 125. 2 Buskirk v. King, 18 C. C. A., s Kane v. Vanderburg, 1 Johns. 418, 72 Fed., 22. Ch., 11. Kent, Chancellor, in de- 41 642 INJUNCTIONS. [CIIAP. XI. So the cutting and removal of valuable timber by the owner of a life estate in possession, with threats of continuing such acts in the future, to the irreparable injury of the es- tate, constitute sufficient ground for an injunction for the protection of the owner of the fee.*' And plaintiffs who have been in possession of land under claim of legal title for many years may enjoin defendants, who are insolvent, from cutting timber which constitutes the chief value of the premises, even though defendants claim title.'^ So the cut- ting of valuable timber which constitutes the chief value of plaintiff's premises presents a case of such irreparable injury as to warrant relief by injunction.^ And equity re- garding the cutting of timber as an injury of an irreparable nature, and having taken jurisdiction for the purpose of restraining such waste, will do complete justice by decree- ing an account and satisfaction for the waste already com- mitted, when plaintiff has the absolute title to the premises.^ § 672. Preliminaxy steps sufficient ground for interfer- ence. Although defendant denies any intention of cutting livering the opinion, says: "Chan- of the six months' notice." In this eery goes greater lengths than the case the bill stated that notices to courts of law in staying waste. It quit had already been served on is a wholesome jurisdiction, to be defendants and that ejectment liberally exercised in the preven- would be brought. The court held tion of irreparable injury, and de- the notice equivalent to the com- pends on much latitude of discre- mencement of an adverse proceed- tion in the court. The tenant for ing to try the title at law and life is here suffering injury to his sufficient to bring the case within own interest, and he, by his ten- the spirit of the ruling in Lath- ants, is doing great injury to the rop v. Marsh, 5 Ves., 259. inheritance, which it is his duty to ^ Robertson v. Meadors, 73 Ind., prevent. He is bound to stop the 43; Disher v. Disher, 45 Neb., 100, mischief, or be responsible himself. 63 N. W., 368. To suppose that an ejectment must ^ Piper v. Piper, 38 N. J. Eq., 81. be actually commenced before the ^ Butman v James, 34 Minn., injunction can issue is certainly an 547, 27 N. W., 66. error. This would be placing the » Fleming v. Collins, Adm'r, 2 operation of waste beyond the Del. Ch., 230. reach of control during the period CHAP. XI.] AGAINST WASTE. 643 timber upon the premises concerning which an injunction is sought, yet if he admits having taken preliminary steps for that purpose, such as sending a surveyor to mark the trees preparatory to cutting them, an injunction will be al- lowed, since it is not necessary that waste should have been actually committed to warrant a court of equity in inter- fering.i*^ Nor is the owner estopped from relief because he has acquiesced in the occasional cutting of timber by de- fendant prior to seeking an injunction.!^ §673. Irreparable injury must be shown; injunction not granted as to timber already cut. Where an injunction is sought against the cutting of timber, it must appear that the trees have a peculiar value, or are of great importance to the estate, as fruit or ornamental trees, and in the case of timber it must appear that its destruction would result in irreparable loss to the estate.^^ The proper thinning out of trees so as to enhance the value of the remaining timber does not constitute waste.^^ So the cutting by a tenant of young trees or saplings, which have not attained such a growth as to be ranked as timber, does not constitute such waste as to warrant an injunction when the trees are not planted for ornament or shelter.^* And an injunction will not be allowed against the removal of timber already cut on the premises, since it has ceased to be a part of the realty, but is personal property, for which trover will lie.^^ Nor will defendant who is in possession of land under a contract of purchase be restrained from cutting timber, unless it should be continued to such an extent as to render the land insuffi- cient security for the payment of the purchase money.^*^ So ^0 Jackson v. Cator, 5 Ves., 688. i* Dunn v. Bryan, I. R. 7 Eq., 11 Davis V. Hull, 67 Iowa, 479, 25 143. N. W., 740. 15 Van Wyck v. Alliger, 6 Barb., i-> Green v. Keen, 4 Md., 98. 507; Watson v. Hunter, 5 Johns. 13 Cowley V. Wellesley, 1 L. R. Ch., 169. Eq., 656. 16 Van Wyck v. Alliger, 6 Barb., 507; Core v. Bell, 20 West Va., 169.' 644 INJUN-CTIONS. [chap. XI. the cutting and removal of trees will not be enjoined when it is not shown that defendants are insolvent, or that the injury will be irreparable, and when it does not appear that plaintiff can not obtain full redress in an action for damages.^ '^ But the cutting of timber upon plaintiff's prem- ises which is necessary for farming purposes and the destruc- tion of shade trees constitute such waste as to warrant relief by injunetion.is § 674. Injunction not allowed for past injuries, nor where defendants claim both title and possession. The province of an injunction being preventive rather than remedial, it will not be used to restrain past injuries, and where it does not appear that future waste is threatened the relief will be with- held.i^ And where defendants claim both title and posses- 17 Dunkart v. Rinehart, 87 N. C, 224. 18 Powell V. Cheshire, 70 Ga.. 357. 19 Southard v. Morris C. & B. Co , Saxt., 518;. Watson v. Hunter, 5 Johns. Ch., 169. Watson v. Hunter was a bill filed by the owner of the fee against a tenant for years to restrain the cutting of pine timber on the premises leased, and to restrain the removal of that already cut. Kent, Chancellor, after reviewing the English au- thorities, says: "This court will stay the commission of waste, or the transfer of negotiable paper, in certain cases, in order to pre- vent irreparable mischief; but the only mischief that can arise in the present case, as to the timber already cut and drawn to the mills of the defendants, is the possible inability of the party to respond in damages. That is a danger equally applicable to all other or- dinary demands, and it is not an impending and special mischief, which will justify this extraordi- nary preventive remedy by injunc- tion. If the injunction could be ordinarily applied to waste already committed, I apprehend we should very rarely hear of a special ac- tion on the case, in the nature of waste, in the courts of common law. * * Where the mischief would be irreparable it might be necessary to interfere in this ex- traordinary way, and prevent the removal of the timber. I do not mean to be understood to say that the court will never interfere, but that it ought not to be done in or- dinary cases like the present. 1 shall accordingly confine the in- junction to the timber standing or growing at the time of the service of process." See also Smith r. Cooke, 3 Atk., 381; Lee v. Alston. 1 Ves. Jr., 78; Garth v. Cotton, 1 Ves., 528; Bishop of London v. Web, 1 P. Wms., 526; Packing- ton V. Packington, 3 Atk., 215. CHAP. XI.] AGAIXST WASTE. 645 sion, equity will not restrain the cutting of timber, even though it constitutes the chief value of the premises.^*^ More especially is this the case where defendants' title has been recognized by complainants.-^ And where the answer fully denies that the cutting of the timber would be an act of ir- reparable injury, and denies the inability of defendants to respond in pecuniary damages, the injunction will be dis- solved. -- § 675. Illustrations of the relief. Equity will not stay waste at the suit of one who has failed to recover damages at law after several suits against the parties for trespass in cutting timber on his land.^^ And it would seem that the cutting of such timber as is necessary for repairs and the cultivation of the land will not be enjoined.^^ But a tenant for ninety-nine years, with the privilege of renewal forever, and with leave to purchase the reversion at a stipulated price., will be restrained from cutting young timber which consti- tutes the chief value of the land.-^ And a tenant under a lease for lives, with a covenant for renewal forever, may nevertheless be enjoined from committing waste upon the de- mised premises by cutting trees.-^ On proof, however, of complainant's want of title, the injunction will be dissolved,, notwithstanding the pendency of his action at law for the- trespass in cutting timber.-^ 20 Shreve v. Black, 3 Green Ch., is any dispute, from being enjoyed 177. by their owners." 21 Shreve v. Black, 3 Green Ch., 2:i Kerlin v. West, 3 Green Ch., 177. Pennington, Chancellor, says: 449. "My embarrassment is not so 23 West v. Page, 1 Stockt., 119. much about the title as about the 24 Duvall v. Waters, 1 Bland,, possession. When this is claimed 569. by the defendant, as well as the 25 Thruston t\ Mustin, 3 Cranch title, and that, too, in connection C. C, 335. with the title, what right has the 20 Hunt v. Browne, Sau. & Sc_ court to interfere? To enjoin 178; Coppinger v. Gubbins, 9 Ir- both parties until a trial is had Eq., 304, criticising Calvert v. Ga- must result in tying up all unim- son, 2 Sch. & Lef., 561. proved lands, about which there "' Westcott v. Gifford, 1 Halst. Ch., 24. 646 INJUNCTIONS. [chap. xr. § 676. Tendency to a more liberal use of the writ; but not allowed in case of disputed title. Although the tendency of courts of equity is to a more liberal use of the writ of in- junction in restraint of waste than was formerly allowed, still a strong case of destruction or irreparable mischief must be made out to warrant the relief. And the cutting of tim- ber upon pine lands, valuable chiefly for the wood, is not such a case of irreparable mischief as to warrant the in- junction, where defendant sets up an adverse claim to a part of the land, and the title and real ownership are in doubt.28 But the cutting of timber upon pine timber lands to the prejudice of the inheritance constitutes such waste as to warrant relief in equity by injunction.-^ And the cutting of fruit trees growing in a garden or orchard is held to be waste and destructive of the inheritance and to afford suf- ficient ground for an injunction.^o § 677. Further illustrations. A devisee under a will has been restrained from cutting timber pending an appeal from a decree determining his rights as such devisee.^^ So an in- junction has been granted in aid of an action of ejectment, in behalf of plaintiffs therein, to restrain defendants from waste consisting in the destruction of timber upon the prem- ises.^2 ^n(j a lessee who has covenanted to plant the de- mised premises with trees, and to replant such parts as have been injured, keeping the trees enclosed with proper fences, and to preserve the trees growing upon the premises from waste and damage, may be enjoined from cutting the trees and from injury and removing the fences, as well as from permitting cattle to pasture within the enclosure.^^ go a ^HWest V. Walker, 2 Green Ch., 129; Silva v. Garcia, 65 Cal., 591. 279, and notes. And see Cornelius 4 Pac, 628. V. Post, 1 Stockt., 196. •■'! Wright /•. Atkyns, 1 Ves. & B., 2!» Smith & Fleek's Appeal, 69 Pa. 313. St., 474. See also Sheridan v. Mc- •'<- Neale v. Cripps, 4 Kay & J.. Mullen, 12 Ore., 150, 6 Pac, 497. 472. 30 Littler V. Thompson, 2 Beav., •^a Bernard v. Meara, 12 Ir. Ch., 389. CHAP. XI.] AGAINST WASTE. 647 judgment creditor has been allowed to enjoin his debtor from cutting and removing timber from his land for gain, although the land was exempt from sale under execution as a home- stead.3* § 678. Lessee of shooting privileges. When a land owner has demised for a term of years the exclusive privilege of shooting over his lands, the lessee of such privilege is not entitled to the aid of equity to enjoin the owner of the premises from cutting timber in the usual course of manag- ing the property.^^ § 679. Cutting of timber pending ejectment. In ejectment for the recovery of lands which are chiefly valuable for their timber, when plaintiff before establishing his right ob- tains an injunction restraining defendants from the commis- sion of waste, and then immediately proceeds to cut timber upon the premises for the purpose of removing it, such action is regarded as a violation of the spirit of the injunction and as a gross abuse of the process of the court which would justify the dissolution of the injunction should the applica- tion be made.^^ 34 Jones V. Britton, 102 N. C, 166. 35 Gearns v. Baker, L. R. 10 Ch.. 9 S. E., 556. 355. 36 Haight V. Lucia, 36 Wis., 356. 648 INJUNCTIONS. [chap. Xi. III. Equitable Waste. § 680. Definition of equitable waste. 681. Ornamental timber; intention of devisor to govern. 682. Nice distinctions as to ornamental timber; question one of fact. 683. Destruction of young timber constitutes equitable waste. 684. Injunction not granted where legal relief is the main object of the action. 685. Trpst and contingent estates. § 680. Definition of equitable waste. Equitable waste is de- fined to consist of such acts as are not considered waste at law, being consistent with the legal rights of the party com- mitting them, but which are deemed waste in equity on ac- count of their manifest injury to the inheritance.^ In other words, it is an unconscientious or unreasonable exercise of a legal right, for which the law provides no remedy, and it may exist independent of any malicious intention.^ The remedy by injunction, being to prevent a known and certain injury, is applicable to every species of waste.^ And if the tenant for life commits waste maliciously, he will be enjoined even though he had the power to do the acts complained of.'* So if the tenant for life, even where the lease contains a clause without impeachment of waste, wantonly* and maliciously in- jures or destroys buildings or trees, he will be restrained, al- though the remainder-man is absolutely remediless at law.^ And the fact that the power is being exercised in an un- reasonable manner and against conscience is sufficient to war- rant the interference.*' So, too, the assignee of the tenant for 1 2 Story's Eq.. § 915. S. C, 2 Vern., 738; Clement v. 2 Turner v. Wright, 2 DeG., F. Wheeler, 25 N. H., 360; Packing- & J., 234. 245. ton v. Packington, 3 Atk., 215; " Hawley v. Clowes, 2 Johns. Ch., Strathmore v. Bowes, 2 Bro. C. C, 122. 88; Pentland v. Somerville, 2 Ir. 4 Abraham v. Bubb, 2 Freem. Ch., 289. Chy., 53. "Aston v. Aston, 1 Ves., 264; 5 Vane v. Barnard, 1 Salk., IGl; Marker v. Marker, 9 Hare, 1. CHAP. XI.] AGAINST WASTE. 649 life without impeachment of waste, will be restrained.''' And a lessee for years, even though under a lease without impeach- ment of waste, may be enjoined at the suit of the reversioner having the fee from digging soil for the manufacture of brick to the ruin of the inheritance.'* §681. Ornamental timber; intention of devisor to govern. The cutting of timber planted for ornament of the premises seems to come within the definition of equitable waste above given,^ and a tenant in tail, after possibility of issue extinct, will be restrained from such acts of waste.^*^ So the cutting or felling of trees that are for the ornament or shelter of the messuage may be enjoined upon the ground of equitable waste.^^ The presumed intention of the devisor governs in determining what trees are to be deemed ornamental, and when this is ascertained the court will extend its protection, whether it regards the trees as ornamental or the contrary.^ - Trees which have been planted or left standing for purposes of protection, as well as those meant to exclude objects from view, are regarded as coming within the rule and will be pro- tected.^^ But the interference is confined to trees of an orna- mental nature only, and it will not be extended to those which are planted for profit.^ ^ And the tenant may thin out ornamental trees without being liable as for waste. ^^ § 682. Nice distinctions as to ornamental timber ; question one of fact. Nice distinctions have sometimes been drawn as " Clement v. Wheeler, 25 N. H., 110, note; Downshire v. Sandys, 361. lb., 107; Mahon v. Stanhope, ;^ 8 Bishop of London r. Web, 1 P. Madd., 523; Marker v. Marker, 9 Wms., 527. Hare, 1. !> Downshire v. Sandys, 6 Ves., i3 Aston v. Aston, 1 Ves., 265; 107; Wombwell v. Bellasyse, lb., Tamworth r. Ferrers, 6 Ves., 419; 110, note; Burges v. Lamb, 16 Ves., Downshire r. Sandys, lb., 107; Day 185. V. Merry, 16 Ves., 375. 10 Burges r. Lamb, 16 Ves., 185; i^ Halliwell v. Philipps, 4 Jur. N. Day V. Merry, 16 Ves., 375. S., 608. 11 Lawley r. Lawley, cited in a is r. Copley, 3 Madd., 525, note to CofRn v. CofRn, Jac, 71. note. 12 Wombwell v. Bellasyse, 6 Ves., 650 INJUNCTIONS. [chap, XI. to what constitutes ornamental timber, the destruction of which will be enjoined. Thus, it has been held that the writ should extend only to timber "standing for ornament and shelter," and not to timber "contributing to ornament. "^^ And in interfering for the protection of ornamental timber equity will confine the relief to such timber as has been planted or left standing for ornament, the question in all such cases being purely one of fact, to be determined in ac- cordance with the presumed will and intention of the person by whom the power was created, and not according to the opinions of the court.^*^ § 683, Destruction of yo\mg timber constitutes equitable waste. The destruction of young trees unfit for timber is regarded as equitable waste. But the cutting must be shown to be destructive to the estate, and the fact that the tenant for life, without impeachment of waste, is cutting younger trees than a careful and prudent husbandman would do, will not authorize the interference.^^ But the cutting of saplings at unseasonable times is such malicious destruction as equity will enjoin.^'* So, too, the relief has been extended to the cutting of underwood where it is destructive of the estate.-*^ § 684, Injunction not granted where legal relief is the main object of the action. We have already seen that equity will restrain the commission of waste by the tenant where the rights of the party aggrieved are merelj^ equitable rights, and where no action at law could be maintained against the tenant.2^ But where complainant has only an equitable and not a legal interest in the land, and his action is brought to recover the land itself and damages for waste committed, an 1" Williams v. McNamara, 8 Ves., lo Hole v. Thomas, 7 Ves., 589. 70. 20 Hole V. Thomas, 7 Ves., 589; IT Marker v. Marker, 9 Hare, 1, Brydges v. Stevens, 6 Madd., 279, "* Aston V. Aston, 1 Ves., 265; -i See § 680, ante; Perrot v. Per- Peirs V. Peirs, lb., 521; Taniworth rot, 3 Atk., 94; Robinson v. Litton, t'. Ferrers, 6 Ves., 419; Hole v. lb., 210; Farrant r. Lovel, lb., 723; Thomas, 7 Ves.. 589, Garth v. Cotton, 1 Ves., 556. CHAP. XI.] AGAINST WASTE. 651 injunction will not be granted, since the object of his action is to secure legal and not equitable relief.^- § 685. Trust and contingent estates. It is said that the jurisdiction will be more readily exercised in the case of a trust estate.2^ So equity will interfere to prevent waste to the injury of a contingent estate, or an executory devise, de- pending upon a legal estate.^^ And an heir, who takes by resulting trust, is within the principle of equitable waste un- til the happening of the contingency.^'^ But as between ten- ants in common, an injunction will not be granted on grounds of purely equitable waste, although the malicious destruction of trees may warrant the interference between such tenants.-*^ 22 Gillett V. Treganza, 13 Wis., 23 Robinson v. Litton, 3 Atk., 472. But it would seem that if 210; Stansfleld v. Habergtiam, 10 the proceeding were addressed by Ves., 277. the equitable owner to the equity 2* Story's Eq., § 914; Stansfleld v. powers of the court, asking its aid Habergham, 10 Ves., 277. to stay waste, or injuries affect- 2r, stansfleld v. Habergham, 10 ing the freehold, it might be Ves., 277. granted by virtue of the general 26 Hole v. Thomas, 7 Ves., 589. powers of a court of equity. Id. 652 iNJU]siCTiONS. [chap. XI. IV. Parties. § 686. General rule as to parties. 687. Rights of reversioner or remainder-man against tenant for life or years; waste by owner of base fee; mere expectancy of inheriting insufficient. 688. Waste by heir at law disputing will. 689. Devisee for life; removal of building by tenant; waste by un- der-lessee. 690. Further illustrations. 691. Changing of premises; violation of covenants. 692. Joint tenants and tenants in common. 693. "Waste by mortgagor in possession. 694. The same. 695. Chattel mortgages. 696. Plaintiff who has parted with interest denied relief. § 686. General rule as to parties. While there are many cases where parties committing waste may be restrained by injunc- tion, even though dispunishable at law/ yet as a general rule he only who has the remainder or reversion of the inheritance is entitled to the relief, and the jurisdiction will not be ex- ercised in behalf of one whose only evidence of title consists in the unsupported allegations of his bill.- But a single, clear instance of waste on the part of a tenant for life is suf- ficient to sustain and continue an injunction, especially if it be shown to have been intentional and not the result of accident.^ And a tenant for life will be restrained at the suit of the remainder-man for killing timber preparatory to cultivating the soil, and from cutting wood for sale.^ § 687. Rights of reversioner or remainder-man against ten- ant for life or years; waste by owner of base fee; mere ex- pectancy of inheriting insufficient. The jurisdiction of equity 1 2 story's Eq., § 913. Perhaps the earliest instance of ■•; Loudon r. Warfield, 5 .T. .J. enjoining a tenant for life from Marsh., 196. the commission of waste is that 3 Sarles v. Sarles, 3 Sandf. Ch., mentioned in Horner v. Popham, 601. Colles, 1. * Dickinson r. .Jones, 36 Ga., 97. CHAr. XI.] AGAINST WASTE. 653 to stay the commission of waste, at the suit of the owner of the reversion against the tenant for life or years, is well es- tablished and rests upon the inadequacy of the remedy at law. And under this head of its jurisdiction equity may properly enjoin the removal of machinery and fixtures by defendants who are tenants of certain premises used for mill purposes, upon a bill by the owner of the premises, such acts being deemed sufficient to set the court in motion, even with- out an averment of defendant's insolvency.^ And a tenant for life, even without impeachment of waste, may be enjoined by the remainder-man from committing destructive waste, such as pulling down the mansion house, since the clause "without impeachment of waste" is not extended to allow the destruction of the estate itself, but only to excuse from permissive waste.*^ So a contingent remainder-man, whose estate is not yet vested by the happening of the event, may restrain the tenant for life in possession from committing waste to the injury of the estate.''' The doctrine has been broadly asserted that an executory devisee can not enjoin the commission of waste by the owner of a base or qualified fee.^ The rule as thus announced has been followed, with the qualification, however, that the relief may be granted in the proper case where it appears that the contingency which will determine the fee is reasonably certain to happen and the waste is of such a character that the defendant must be deemed guilty of an abuse of his rights.^ But the tenant for life will not be restrained from the removal of personal prop- erty unless good ground is shown for apprehending that there is danger of its removal.^ ^ And the fears and appre- 5 Poertner v. Russell, 33 Wis., » Matthews v. Hudson, 81 Ga., 193. 120, 7 S. E., 286, 12' Am. St. Rep., Lord Bernard's Case, Finch's 305. Precedents, 454. » Gannon v. Peterson, 193 111., 7 Cannon v. Barry, 59 Miss., 289; 372, 62 N. E., 210, 55 L. R. A., 701. I/niversity v. Tucker, 31 West Va., lo Clagon v. Veasey, 7 Ired. Eq., 621, 8 S. E., .410. And see Cowand 175. V. Meyers, 99 N. C, 198, 6 S. E., 82. 654 INJUNCTIONS. [chap. XT. tensions of the remainder-man are not sufficient to authorize the injunction, but the facts must be shown which constitute the danger of the removal.^ ^ And a mere expectancy to in- herit unaccompanied by any estate or interest in the land is not sufficient to authorize an injunction against waste.^^ § 688. Waste by heir at law disputing will. It is the doc- trine of the Irish Court of Chancery that equity has jurisdic- tion to restrain waste committed by the heir in possession of realty and disputing the will of the ancestor, the relief in such case being based upon the necessity of preventing ir- reparable injury to the estate.^^ So where an heir at law, disputing the will of his ancestor, has entered into posses- sion of the devised estates, and a court of equity directs an issue to be tried at law as to the validity of the will, devisavit vel non, upon a bill by the executors against the heir to establish the will the court may properly grant an injunction against waste by the heir in possession, and may also appoint a receiver over the estate.^ ^ § 689. Devisee for life ; removal of building by tenant ; waste by under-lessee. A devisee for life may be restrained by the owner in fee from the cutting down of timber other than that necessary for the use and cultivation of the premises.^ •'^ But a landlord, who is not entitled to the reversion, will not be allowed to enjoin the commission of waste by the removal from the premises of a building erected by the tenant,^ ^ though a ground landlord is entitled to an injunction to re- strain an under-lessee from the commission of waste.^'^ § 690. Further illustrations. A tenant from year to year may be enjoined from removing crops, straw and manure, 11 Lehman v. Logan, 7 Ired. Eq., '•' Smith r. Poyas, 2 Desaus. Eq., 296. 65. 12 Gwaltney v. Gwaltney, 119 ^o Perrine r. Marsden, 34 Cal., Ind., 144, 21 N. E., 552. 14. 13 Fingal v. Blake, 2 Mol., 50. i^ Farrant v. Lovel, 3 Atk., 723. " Fingal r. Blake, 1 Mol., 113. CHAP. XI.] AGAINST WASTE. 655 where it is contrary to the custom of the country.^ ^ And it has been held that the sowing- of land with hurtful crops is such waste as equity will restrain.^ ^ So a tenant who is abusing his right of estovers, thereby exceeding his right or power under the lease, may be enjoined. And in such case no length of time will justify the tenant in such abuse, since as between himself and his landlord, the only test of the tenant's right is the lease under which he holds.^o And an assignee of the original lessee, holding for a term of years, may have an injunction against waste committed by his under-lessee.2i But an injunction will not be granted in be- half of a remainder-man to restrain the tenant for life from opening the soil in new places for the digging of coal, such use of the premises being in accordance with the uniform practice and usage of the country.22 Nor will an interloc- utory injunction be granted to stay the commission of waste by tenants who are in possession of the premises, and who have not been brought before the court, since their interest in the premises being a legal interest, they are entitled to protection, and should be made parties to the proceeding be- fore being enjoined.^^ § 691. Changing of premises ; violation of covenants. The aid of equity may be properly invoked by the owner of the fee to restrain a sub-lessee from effecting such changes in the premises as are inconsistent with the terms of the lease, and as are likely to result in such injury to the owner's right as is not susceptible of adequate compensation at law.^* And a tenant for years may be enjoined at the suit of his lessor from using the premises in violation of his covenants 18 Pulteney v. Shelton, 5 Ves., 21 Farrant v. Lovel, 3 Atk., 723; 147; Onslow v. , 16 Ves., S. C, Amb., 105. 173; Pratt v. Brett, 2 Madd., 62. 22 Clavering v. Clavering, 2 P. 19 Pratt V. Brett, 2 Madd., 62. Wms., 388. 20 Lord Courtown v. Ward, 1 23 Lord Norbury v. Alleyne, 1 Dr. Sch. & Lef., 8. & Wal., 337. 24Baugher v. Crane, 27 Md., 36. 656 INJUNCTIONS. [chap. XI. contained in the lease.-^ So, too, the lessor may restrain his lessee, or those claiming under him or acting by his authority, from converting the demised premises to uses repugnant to the terms of the lease,-^ and from making material altera- tions, as by changing a building rented for a post office into a beer hall,-'^ or a dwelling into a warehouse.^^ § 692. Joint tenants and tenants in common. As a general rule equity will not interfere to restrain waste as between joint tenants, tenants in common, or coparceners, since their right is equal in the use and enjoyment of the estate.^** It is otherwise, however, if the defendant be insolvent and in- capable of responding in pecuniary damages.^*^ And where the waste is destructive to the estate, and not within the usual and legitimate enjoyment of the premises, such as cut- ting growing timber not necessary to carry on farming opera- tions, the relief will be granted.^^ So, too, if one of the parties occupies as a tenant to the other, equity may inter- fere.^2 And the husband of a tenant in common may be en- joined from committing waste, in an action brought for a partition of the premises between the eo-tenants.^^ But ten- ants in common will not be enjoined from cutting timber where insolvency is not averred, and it does not appear that they are exceeding their share of the timber.^"* § 693. Waste by mortgagor in possession. Again, equity will restrain the commission of waste in behalf of one whose 25 Frank v, Brunnemann, 8 West N. E., 1048, 32 L. R. A., 270, 51 Va., 462. Am. St. Rep., 711. 2erty injured is under some disability which would pre- vent the enforcement of the legal remedy, as where property is bequeathed to a feme covert as her separate estate, with- out the intervention of a trustee, the legal estate thereby vesting in the husband. In such case equity will restrain ■■■■<> Nicodemus v. Nicodemus, 41 'i- Minnig's Appeal, 82 Pa. St., Md. 529. 373; .Jordan r. Lanier, 73 N. C, 90. :>' Lanahan r. Gahan, 37 Md., 105. •-! Goodell r. Lassen, 69 111., 145.. CHAP. XII.] AGAINST TRESPASS. 669 the sale of the property under execution against the hus- band.34 The necessity of preventing a multiplicity of suits affords another exception to the rule, and will warrant the interposition of the strong arm of equity, even though there be a remedy at law.^^ But to warrant the interference in such cases there must be different persons assailing the same right, and the principles upon which the relief is granted liave no application to a repetition of the same trespass by one and the same person, the case being susceptible of com- pensation in damages.^*^ § 701. Conditions necessary to relief. To warrant the in- terference of equity in restrain of trespass, two conditions must co-exist: first, complainant's title must be established; and, second, the injury complained of must be irreparable in its nature.^'^ And to come within the rule the injury must be of such a nature as not to be susceptible of adequate pecuniary compensation in damages.^'^ Nor will equity in- terfere to restrain a trespasser simply because he is a tres- passer, but only because the injury threatened is ruinous 34 Smith V. Smith, 4 Jones Eq., Bright, 24 West Va., 698; Cresap u. 303. Kemble, 26 West Va., 603; Lazzell 35 Coit V. Horn, 1 Sandf. Ch., 1; v. Garlow, 44 West Va., 466, 30 S. Hatcher v. Hampton, 7 Ga., 50; E., 171; Burns r. Mearns, 44 West Nutbrown r. Thornton, 10 Ves., Va., 744, 30 S. E., 112; Becker v. 159; Pretecea v. Maxwell Land McGraw, 48 West Va., 539, 37 S. Grant Co., 1 C. C. A., 607, 50 Fed., E., 532; Freer v. Davis, 52 West v€74. Va., 1, 43 S. E., 164, 59 L. R. A., 36Deegan v. Neville, 127 Ala., 556, 94 Am. St. Rep.. 895; Norton 471, 29 So., 173, 85 Am. St. Rep., v. Elwert, 29 Ore., 583, 41 Pac, 137; Hatcher v. Hampton, 7 Ga., 926; Sharpe v. Loane, 124 N. C, 50; Chicago Public Stock Ex- 1, 32 S. E., 318. change v. McClaughry, 148 HI., 3s Weigel v. Walsh, 45 Mo., 560; 572, 36 N. E., 88; Chicago Gen. Ry. Bethune v. Wilkins, 8 Ga., 118; Co. V. C, B. & Q. R. Co., 181 111., Vanwinkle v. Curtis, 2 Green Ch., '605, 54 N. E., 1026; Roebling v. 422; Shipley r. Ritter, 7 Md., 408; First National Bank, 30 Fed., 744. Foster, Ex parte, 11 Ark., 304; 3T Gause v. Perkins, 3 Jones Eq., Ross v. Page, 6 Ohio, 166; Sharpe 177; Schurmeier v. St. Paul & P. v. Loane, 124 N. C, 1, 32 S. E., 318. R. Co., 8 Minn., 113; Schoonover v. 670 INJUNCTIONS. [chap. XII. to the property in the manner in which it has been enjoyed and will permanently impair its future enjoyment. And if the title to the locus in quo is in doubt, the injunction, if allowed at all, should be only temporary until the title can be determined at law.^^ But where the questions of law and of fact are serious and where the injury resulting to the plaintiff from being denied a preliminary injunction would be great, while the injury to the defendant resulting from the granting of the writ would be insignificant, a prelim- inary injunction may be allowed to retain matters in statu quo until a final determination.^^ §702. Illustrations of irreparable injury; trespass ripening into easement. It is frequently a matter of difficulty to de- termine what constitutes such a degree of irreparable injury as to M^arrant a court of equity in enjoining what might other- wise seem to be an ordinary act of trespass, for which an adequate remedy at law might be found. But where it is shown that defendant, acting under the orders of the regu- larly constituted authorities of a municipal corporation, is about to destroy fences, fruit and ornamental trees and shrubbery growing upon premises owned and occupied by plaintiff as a homestead, under an unfounded pretense that they are within the limits of a public street, the threatened acts are so clearly irreparable as to warrant relief in equity by injunction. In such a case a mere money compensation would not afford adequate relief, and the refusal of an in- junction would, in effect, be a denial by justice.-*^ So the unauthorized and forcible entry upon land owned b}^ and in the possession of plaintiff', and defacing his boundaries and establishing new ones, aft'ord sufficient ground for an 10 Echelkamp v. Schrader, 45 Point, 39 vVis., 160; Uren y. Walsh, Mo., 505; Mayor /;. Groshon, 30 57 Wis., 98, 14 N. W., 902; Village Md., 436. of Itasca v. Schroeder, 182 111., 192, 40 Diniick v. Shaw, 36 C. C. A., 55 N. E., 50; Schock r. Falls City. 347, 94 Fed., 266. 31 Neb., 599, 48 N. W., 468. *i Wilson V. City ot Mineral i CHAP. XII.] AGAINST TRESPASS. 671 injunction.*- So when the trespass complained of is repeated or continued, in the nature of a nuisance, or when the wrong- ful acts continued or threatened to be continued may become the foundation of adverse rights and may occasion a multi- plicity of suits to recover damages, the case presents such equitable features as to entitle complainant to the aid of an injunction.*^ So, too, a trespass which if continued will ripen into an easement may properly be enjoined.** Thus, the tearing down of fences by a highway officer for the purpose of laying out a highway across plaintiff's premises, where none has been established, disturbs plaintiff's possession, and will if continued ripen into an easement ; hence equity may properly interpose by injunction in such a case.*^ And where an injunction is granted upon the ground that the trespass may ripen into an easement, the question of damages is im- material and the relief will be allowed although the act com- plained of results in no actual or substantial present injury to the plaintiff.**' But the fact that the trespass, if con- tinued, may give rise to an easement, does not, of itself, afford ground for an injunction in advance of the final hear- ing.*^ § 702 a. Further illustrations. As further illustrating the doctrine under discussion, it is held that where the acts of trespass are constantly recurring but the injury resulting from each separate act is trifling, so that the damages re- coverable for each act would be very small w^hen compared 42 Preston v. Preston, 85 Ky., 16, 456, 26 Pac, 968; Mott v. Ewing, 2 S. W., 501. 90 Cal., 231, 27 Pac, 194. 43 Johnson v. City of Rochester. 4"' Poirier v. Fetter, 20 Kan., 47. 13 Hun, 285; Newaygo M. Co. v. 4 6 Amsterdam Knitting Co. v. Chicago & W. M. R. Co., 64 Mich., Dean, 162 N. Y., 278, 56 N. E., 757; 114, 30 N. W., 910; Shaffer v. Walker v. Emerson, 89 Cal., 456, Stiill, 32 Neb., 94, 48 N. W., 882. 26 Pac, 968; Mott v. Ewing, 90 44 Poirier v. Fetter, 20 Kan., 47; Cal., 231, 27 Pac, 194. Murphy v. Lincoln, 63 Vt, 278, 22 4- McGregor v. Silver King Min- Atl., 418; Amsterdam Knitting Co. ing Co., 14 Utah, 47, 45 Pac, 1091, V. Dean, 162 N. Y., 278, 56 N. E., 60 Am. St. Rep., 883. 757; Walker v. Emerson, 89 Cal., •672 INJUNCTIONS. [chap. XII. with the expense necessary to prosecute separate actions at law therefor, relief will be granted owing to the inadequacy of the legal remedy.^^ So where a trespass upon land is repeated and continuous and, if continued, will result in the destruction of the substance of the estate, relief is properly allowed.^^ So the repeated removal of plaintiff's fences, ■coupled with threats of continuing such removal as often as the fences are replaced, defendant being insolvent, will war- rant relief by injunction, as well upon the ground of in- adequacy of the legal remedy, as for the prevention of a multiplicity of suits.^*^ And the relief has been allowed in such case even though the defendant was not insolvent.^^ And the discharge of freight by a steamboat at a private Avharf owned by plaintiff, to the constant and serious in- terruption of his business, will warrant an injunction under a statute authorizing the relief when an injury to real or per- sonal property is threatened which, in the opinion of the court, can not be adequately remedied by an action for dam- ages.^- And the destruction of a mill-dam which operates planitiff's mill may be enjoined, defendant being insolvent and unable to respond in damages.^^ So the construction of a tunnel through plaintiff's premises is a trespass of so irreparable a nature as to justify the granting of an injunc- tion.^-* And where plaintiff is lawfully in possession of and entitled to use a wharf upon a navigable water and in con- 48 Lembeck v. Nye, 47 Ohio St., So., 652; Northern Pac. Ry. Co. v. 336, 24 N. E., 686, 8 L. R. A., 578, Cunningham, 103 Fed., 708. 21 Am. St. Rep., 828; Providence, so Owens v. Crossett, 105 111., 354. F. R. & N. S. Co. r. City of Fall And see Ladd v. Osborne, 79 Iowa, River, 183 Mass., 535, 67 N.E.,647, 93, 44 N. W., 235. McClellan v. Taylor, 54 S. C, 430, si Pohlman r. Evangelical 32 S. E., 527. Church, 60 Neb., 364, 83 N. W., 201. 4» Lewis V. Town of North Kings- S2 Turney v. Stewart, 78 Mo., 480. town, 16 R. I., 15, 11 Atl., 173, 27 S3 Sword v. Allen, 25 Kan., 67. Am. St. Rep., 724; Miller v. Wills, S4 Richards v. Dower, 64 Cal., 62. 95 Va., 337, 28 S. E., 337; Hooper 28 Pac, 113. i). Dora C. M. Co., 95 Ala., 235, 10 CHAP. XII.] AGAINST TRESPASS. 673 nection with and as appurtenant thereto to use certain rnoor^ ing's, buoys and anchors, their unauthorized removal by de- fendants constitutes such an irreparable injury as to war- rant an injunction, even though defendants are not shown to be insolvent.^^* So defendant will be enjoined from en- tering upon a public highway and preventing plaintiff from carrying on the work of paving which he is engaged in do- ing under a contract with the city, where the trespass is constantly repeated and would subject the plaintiff to a mul- tiplicity of suits at law for redress.^*^ And where the defend- ant has frequently trespassed upon plaintiff's land and has served upon him a written notice of his intention to continue the trespassing as often as the plaintiff seeks to assert his rights, an injunction is properly granted owing to the in- adequacy of the remedy at law.^'^ So a railway company may have an injunction to restrain hackmen from continually entering its depot against its will for the purpose of solicit- ing the patronage of its passengers.^^ And one railroad may enjoin another from continually running its engines and cars upon plaintiff's tracks without any right so to do.-''^ And an injunction will issue to restrain defendants from constantly entering upon a game preserve owned by the plaintiff' and killing the game, thereby destroying the value of the land for the purposes for which plaintiff is using it.*^*^ And where plaintiff' is in lawful possession of a tract of land under a lease from the owner, in which he had sunk a natural gas well from which he is taking gas, the unauthorized digging 55 Crescent City W. & L. Co. v. N. H. & H. R. Co. v. Scovill, 71 Simpson, 77 Cal., 286, 19 Pac, 426. Conn., 136, 41 Atl., ^46, 42 L. R. 56 Palmer v. Israel, 13 Mont., 209, A., 157, 71 Am. St. Rep., 159. 33 Pac, 134. so Lake Shore & M. S. R. Co. v. ■'••■ Edwards v. Haeger, 180 111., Felton, 43 C. C. A., 189, 103 Fed., 99, 54 N. E., 176. 227. ns Boston & M. R. Co. r. Sulli- eo Kellogg r. King, 114 Cal., 378. van, 177 Mass., 230, 58 N. E., 689, 46 Pac, 166, 55 Am. St. Rep., 74, 83 Am. St. Rep., 275; New York, 43 674 INJUNCTIONS. [chap. XII. of a well by the defendant in such close proximity as to diminish the flow of gas from the plaintiff's well will be enjoined owing to the impossibility of determining with any degree of accuracy the damages which will result to the plain- tiff.61 § 703. Interference with burial ground. In conformity with the general principle that an act of trespass for which it is impossible to give an adequate remedy by damages at law may be enjoined in equity, it is held that where land has for many years been held and used by the owner as a family burial ground, defendants may be enjoined from en- croaching thereon and from a threatened removal of the re- mains of persons interred therein. And in such case, the right to equitable relief is based upon the fact that there can be no standard by which to estimate the damages sus- tained, since the extent of the injury is dependent upon the feelings of the persons aggrieved, and upon their peculiar views of the sacredness of the ground in question.'^- So the invasion or appropriation, without authority, of lands owned Gi Indianapolis N. G. Co. v. Kib- them to remove the remains of bey, 135 Ind., 357, 35 N. E. 392. their dead relatives and friends, «- Mooney v. Cooledge, 30 Ark., and were threatening to do so. For 640. Mr. Justice Walker observes, such an injury as this there could p. 642, as follows: "The plaintiffs be no standard by which to esti- allege that this acre of land was, mate the damages sustained. The and for many years has been the extent of the injury to be inflicted property of their ancestor, and had must depend upon the sympathies all the while been claimed and and feelings of the parties injured, used as a family burial ground; and their peculiar views as to the that many of their near relatives sacredness of the spot where the arid esteemed friends were buried remains rest. Whilst it might be there; that defendants, the own- a matter of little moment to some, ers of Evergreen Cemetery, have it might inflict an irreparable in- extended the cemetery upon this jury to others, which money could land, fenced it in, laid off part of not compensate. Under the state the land upon which their dead of case presented, we hold that the relatives and friends have been suit was properly brought in a buried as an addition to the said court of equity." cemetery; had given notice to CHAP. XII.] AGAINST TRESPASS. 675 by the trustees of a religious organization and used by them for burial purposes, and the attempt to take such property from the owners without authority, and to devote it to another purpose, constitute an injury of such an irreparable nature as to justify the interposition of equity by injunc- tion.^'3 And where land was dedicated by a former owner for use as a burial ground, and has been so used for many years, a subsequent owner of the premises may be enjoined from interfering with their use for burial purposes at the suit of residents of the neighborhood having friends buried there, plaintiffs suing for themselves and for all others hav- ing a like interest.*"^^ So where a father buried the remains of his deceased son in his own lot in a cemetery, with the full approval and consent of the widow of the deceased, the widow was enjoined from removing the remains to another place for burial.*^-'' §704. Encroachments upon adjacent land; projecting buildings. Perhaps no cases where preventive relief by in- junction has been allowed against the commission of tres- passes better illustrate the nature and grounds of the juris- diction, than those in which the aid of equity is invoked to prevent an encroachment upon complainant's soil by ex- cavating on the part of an adjacent owner, or by the de- struction of complainant's wall in building operations upon adjacent premises; and the right to relief in this class of cases is well established.^^ For example, where complainant and those under whom he claims have been for many years in possession of lands, and defendant, an adjacent lot owner, has pulled down the division fence, and is proceeding to ex- es Beatty V. Kurtz, 2 Pet, 566; son, 22 La. An., 512; Tribune As- Trustees v. Walsh, 57 111., 363. sociation v. The Sun, 7 Hun, 175. 64 Davidson r. Reed, 111 111., 167. See also Hunt v. Peake, John Eng. 65 Peters v. Peters, 43 N. J., Eq., Ch., 705; Chicago, B. & Q. R. Co. 140, 10 Atl., 742, V. Porter, 72 Iowa, 426, 34 N. W., 66 Southmayd v. McLaughlin, 9 286; Gobeille «. Meunier, 21 R. I,, C. E. Green, 181; Marion v. John- 103, 41 Atl., 1001. 67ti INJUNCTIONS. [chap. XII. cavate the soil of complainant's land for the purpose of erect- ing a building partly upon his premises, a fitting case is pre- sented for relief by injunction, the injury going to the de- struction of the inheritance.^^ So when defendants, in erect- ing a building upon a lot adjoining the premises of complain- ants, are removing bricks from the wall of their building, to its great injury and detriment, the act, although a trespass, is of such an irreparable character, as to warrant an injunc- tion.^^ And the relief may be granted against a public officer, such as a building inspector of a city, who is proceeding in excess of his authority to the commission of an irreparable injury, as by tearing down the wall of a building, when the injury thereby sustained can not be adequately measured or estimated in damages.*^^ So, too, where the trespass consists in removing earth and stones from a bank belonging to com- plainant, and which protects his lands from inundations and irruptions of the sea, he having already obtained a verdict at law for the same trespass, an injunction may be allowed.'^*^ And where defendant threatens to tear down and remove a portion of complainant's dwelling, which he alleges is built upon his own laud, the threatened injury is so irreparable in its nature as to justify relief by injunction.'^^ And upon similar principles, where defendant's building, or its founda- tions, or such parts of it as windows, cornices and the like, project upon or over the adjoining land owned by the plain- tiff, a mandatory injunction is properly granted to compel the removal of such projecting parts.'- And where the en- 07 Southmayd v. McLaughlin, 9 nam, 75 Conn., 662, 55 Atl., 168; C. E. Green, 181. Wilmarth v. Woodcock, 66 Mich., 'i>* Marion /;. Johnson, 22 La. An., 331, 33 N. W., 400; Harrington r. 512. McCarthy, 169 Mass., 492, 48 N. E., 00 Tribune Association v. The 278; Hodgkins r. Farrington, 150 Sun, 7 Hun. 175. Mass., 19, 22 N. E., 73, 5 L. R. 70 Chalk V. Wyatt, 3 Meriv., 688. A., 209; Pile t'. Pedrick, 167 Pa. 71 De Veney r. Gallagher, 5 C. St., 296, 31 Atl., 646, 647, 46 Am. E. Green, 33. St. Rep., 677; Norton v. Elwert, 7aNorwalk H. & L. Co. v. Ver- 29 Ore., 583, 41 Pac, 926; Gobeille CHAP. XII.] AGAINST TKESPASS. 677 croachment consists of a projection above the land as dis- tinguished from one which is upon it, the remedy by eject- ment can have no application since there is no interference with the plaintiff's possession so far as the land itself is con- cerned.'^^ But where an occasional stone of the defendant's foundation wall projects a short distance into plaintiff's land below the ground, and the defendant, in building the wall, has endeavored to prevent such an encroachment, so that the trespass is unintentional and very slight, and where the de- fendant has offered to pay any sum which the plaintiff may claim, it further appearing that no appreciable damage re- sults to the plaintiff, the court may properly deny injunctive relief and leave the plaintiff to his remedy at law.''^^ § 705. Limitations upon the doctrine'. It is, however, im- portant to observe that to warrant a court of equity in grant- ing an injunction at the suit of the owner of realty to pre- vent an adjacent owner from improving his premises by ex- cavating up to the line of complainants, a clear case of dam- age, actual or inevitable, should be made to appear. Where, therefore, it is not shown that complainant's soil has been displaced, or that it will necessarily be damaged by making the improvement, equity will not interfere.'^''' And when it is sought to restrain defendant from tearing down one of the walls of complainant's house standing upon a strip of ground, the title to which is in dispute, and complainant fails to show any title whatever to the disputed ground, he is not ' entitled to preventive relief by injunction against the alleged trespass.*^^ V. Meunier, 21 R. I., 103, 41 All., '-^ Wilmarth w. Woodcock, 66 1001. In Long v. Ragan, 94 Md , Mich., 331, 33 N. W., 400. 462, 51 Atl., 181, the injunction "+ Harrington v. McCarthy, 169 was not mandatory hut merely re- Mass., 492, 48 N. E., 278. strained the defendant from fur- '■' Morrison v. Latimer, 51 Ga., ther proceeding with the erection 519; McMaugh r. Burke, 12 R. I., of his building upon plaintiff's 499. land. ■•'■ Hiss c. McCabe, 45 Md., 77. 678 INJUNCTIONS. [chap. XII. § 706. Erection of wooden fence ; ditch out of repair ; mud and earth. The erection of a wooden fence on part of com- plainant's premises is not productive of such serious conse- quences as to warrant an injunction.'^" Nor will the court interfere where the act complained of consists in permit- ting a ditch to remain out of repair, whereby water perco- lates through the bank and floods complainant's meadow, since ample remedy may be had at law.'''^ And upon the same principle the throwing up of mud and earth on com- plainant's land will not be enjoined.'^^ But the destruction of a hedge fence upon plaintiff's premises has been held sufficient ground for an injunction.^^ § 707. Complete and incomplete erections ; fraudulent and oppressive conduct. Where the trespass complained of con- sists in the erection of buildings upon complainant's land, a distinction is taken between the buildings when in an incom- plete and when in a finished state. And while the jurisdic- tion is freely exercised before the completion of the struc- tures,^^ yet if they have been completed the relief will gen- erally be withheld, and the person aggrieved will be left to his remedy by ejectment.^- But if the conduct of defend- ants in the construction of the obnoxious works has been fraudulent and oppressive, causing serious injury to com- plainants and preventing their enjoyment of their property in its original condition, equity ma}^ interpose.^^ So an in- junction has been granted to prevent the illegal removal of -T Herr r. Bierbower, 3 Md. Ch., 602; Long r. Ragan, 94 Md., 462, 45G. 51 Atl., 181; Baron r. Korn, 127 N. 7s Carlisle v. Stevenson, 3 Md. Y., 224, 27 N. E., 804. Ch., 499. **- Deere v. Guest, 1 Myl. & Cr., T!> Mulvany v. Kennedy, 26 Pa. 516; Moreland r. Richardson, 22 St., 44. Beav., 604. »«• Sapp r. Roberts, 18 Neb., 299, s^' Powell r. Aiken, 4 Kay & J., 25 N. W., 96. 343; Bowser v. Maclean, 2 DeGex, 81 Farrow v. Vansittart, 1 Rail. C, F. & J., 415. ■CHAP. XII.] AGAINST TRESPASS. 679 a school house and the assuming control over a portion of the school territory, the remedy at law being inadequate.^* § 708. When injunction made mandatory. Although the jurisdiction of equity by mandatory injunction to compel the restoration of matters in statu quo is sparingly exercised, since, if the trespass consists in the erection of structures, the remedy by ejectment is plain,^^ yet a trespass irreparable in its character and of a continuing nature may be restrained by a mandatory injunction, thus restoring things to their original condition.^^ Thus, health officers have been re- strained by mandatory injunction from allowing a sewer to remain open.^" And the manager of a business has been en- joined from excluding the owner of the business from the premises.^'- So, too, a mandatory injunction has been granted to prevent defendant from allowing a building to remain on the roof of the complainant's house which he had erected tliere.^^ But the relief will not be allowed to compel the rebuilding of a wall which has been overthrown, the rem- edy being deemed ample at law.^^ And where defendant has been in possession of the locus in quo for a period of six years, and the title is in controversy between the par- s'* District Township of Lodomil- kins v. Farrington, 150 Mass., 19, lo V. District Township of Cass, 54 22 N. E., 73, 5 L. R. A., 209; Pile Iowa, 115, 6 N. W., 163. v. Pedrick, 167 Pa. St., 296, 31 Atl., 85 Deere v. Guest, 1 Myl. & Cr., 646, 647, 46 Am. St. Rep., 677; 516; Moreland v. Richardson, 22 Norton v. Elwert, 29 Ore., 583, 41 Beav., 604. Pac, 926; Gobeille v. Meiinier, 21 86 Martyr v. Lawrence. 2 DeGex, R. I., 103, 41 Atl., 1001; Henderson J. & S., 261; Robinson v. Byron, r. Ogden C. R. Co., 7 Utah, 199, 26 1 Bro. C. C, 588; Great R. Co. v. Pac, 1119. Clarence R. Co., 1 Coll., 507; Pow- 87 Manchester R. Co. v. Worksop ell r. Aiken, 4 Kay & J., 343; Nor- Board of Health, 23 Beav., 209. walk H. & L. Co. r. Vernam, 75 ss Eachus v. Moss, 14 W. R., 327. Conn., 662, 55 Atl., 168; Wilmarth sa Martyr v. Lawrence, 3 DeGex, V. Woodcock, 66 Mich., 331, 33 N. J. & S., 261. W., 400; Harrington v. McCarthy, so Doran r. Carroll, 11 Ir. Ch., 169 Mass., 492, 48 N.E.,278; Hodg- 379. 680 INJUNCTIONS. [chap. XII. ties, equity will decline to interfere by mandatory injunc- tion.91 §709. Pulling down buildings; taking stone from quarry. A lease containing covenants to repair, and at the end of the term to surrender the buildings in good condition, con- stitutes no bar to an injunction against pulling down the buildings and removing the materials immediately before the expiration of the term.^^ And an injunction and account will be allowed against a trespass consisting in defendant's ex- ceeding a limited right which he holds of taking stone from complainant's quarry, such a trespass being regarded as one which goes to the destruction of the inheritance.^^ § 710. Erection of piers by foreign corporations enjoined. A foreign corporation may be restrained from taking pos- session of the land under water in a harbor over which a state has jurisdiction, and from erecting piers and docks thereon, the injury being such as to warrant a court of equity in interfering in behalf of the people.^* §711. Extinguishment of interest in common. Where one's interest in a common has become extinguished, he will not be allowed to become a trespasser upon the rights of others in the common, and an injunction may issue to prevent him from so doing.^^ § 712. Injunction not granted in case of forcible entry and detainer. An injunction being a preventive remedy, and not used to compel the undoing of what has already been done, it will not be granted in a simple case of trespass by forcible entry and detainer, the remedy at law being regarded as fully adequate to such a case.^^ §713. Remedy at law; erection of trestle work; taking stone from ledge. Equity Avill not depart from the well »i Gaunt r. Fynney, L. R. 8 Ch., ^>* People v. Central R. R., 48 8. Barb., 478. 02 Mayor v. Hedger, 18 Ves., 355. oc Bell v. Ohio & P. R. Co., 25 Pa. »•■» Thomas v. Oakley, 18 Ves., 184. St., 161. 88 Wangelin v. Goe, 50 111., 459. CHAP. XII.] AGAINST TRESPASS. 681 settled rule of leaving the parties to their remedy at law for acts of trespass committed on lands, unless there are some special circumstances set up in the bill, and Avhere it is not shown that the remedy at law is inadequate.-''^ And the erection of a trestle work of a railway in a public street is not such a trespass as will authorize an injunction, Avhere the erection is capable of being readily removed.'^s So the taking of stone from a ledge on complainant's premises, being susceptible of pecuniary compensation, and not being shown to be destructive of the estate, will not be enjoined.'''' But the owner of lands over which a highway is being con- structed may restrain the digging of pits in the line of the highway below^ the proposed grade, and the removal of gravel therefrom with which to cover the road^vay upon lands not owned by plaintiff.^ § 714. Interference with church property ; when injunction perpetuated. Trustees of a church may enjoin pretended trustees from intermeddling with the church property where 07 Wilson V. Hughell, Morris the cognizance of equity, and by (Iowa), 461. calling forth, upon all occasions, 98 Schurmeier v. St. Paul & P. R. its power to punish by attachment, Co., 8 Minn., 113. fine and imprisonment, for a fur- 99 Jerome v. Ross, 7 Johns. Ch., ther commission of trespass, in- 315. In this case canal commis- stead of the more gentle common sioners being authorized by statute law remedy by action and the as- to enter upon any lands contiguous sessment of damages by a jury, to the canals, and to dig for stone In ordinary cases this latter rem- and other materials necessary for edy has been found amply sufficient the prosecution of their work, dug for the protection of property; up and removed stone from a ledge and I do not think it advisable, of rock on complainant's premises, upon any principle of justice or who thereupon filed a bill for an policy, to introduce the chancery injunction. Kent, Chancellor, in remedy as its substitute, except in finally disposing of the case, says: strong and aggravated instances "The objection to the injunction, of trespass, which go to the de- in cases of private trespass, except struction of the inheritance, or under very special circumstances, where the mischief is remediless." is, that it would be productive of i Robert v. Sadler, 104 N. Y., public inconvenience, by drawing 229, 10 N. E., 428. cases of ordinary trespass within 682 INJUNCTIONS. [CHAr. XII. the trespass goes to the destruction of the property in the character in which it was enjoyed.^ And upon satisfactorily establishing the legal right and its violation a perpetual injunc- tion may be awarded against a trespass.-^ §715. Interference with possession; trespass ripening into nuisance. Equity will not restrain interference with com- plainant's possession of his premises when the indirect effect of the injunction would be to reinstate complainant in pos- session, the remedy at law being ample.'* But a trespass w^hich, from its long continuance, has grown into a nuisance, may be enjoined to prevent multiplicity of suits.^ 2 Trustees v. Hoessli, 13 Wis., to the destruction of it in ttie char- 348. Complainants, being trustees of an incorporated religious socie- ty, asked a perpetual injunction against certain parties pretending to be trustees to restrain them from intermeddling with the church property. It was held on demurrer that the action was prop- erly brought by the trustees in their official capacity and not in the name of the state; also that a sufficient cause of action was shown to warrant the interference of a court of equity. Cole, J., ob- serves: "The general rule un- doubtedly is, that in cases of pri- vate trespass an injunction would not be granted, for the reason that the aggrieved party has an ade- quate common law remedy by ac- tion where proper damages could be assessed by a jury. In ordinary cases this was found to be suffi- cient for the protection of prop- erty. 'But in cases of a peculiar nature, where the mischief was ir- remediable, which damages could not compensate, or where the in- jury reached to the very substance and value of the estate, and went acter in which it was enjoyed,' then courts of equity would grant an injunction to prevent the injury complained of. Beatty v. Kurtz, 2 Peters, 566; Jerome v. Ross, 7 Johns. Ch., 315; Varick v. Mayor, 4 lb., 53. Now it must be admit- ted that the circumstances of this case are so special, the nature and use of the property itself are so peculiar, that an ordinary action of trespass would furnish no adequate compensation for an injury to the possession. For would any mere pecuniary damages furnish any compensation to a religious society for repeated and constant acts of trespass upon its property and temporalities? Most clearly not. The entire value of such property consists in its free and undisturbed use and enjoyment for religious worship." ■■i McLaughlin v. Kelly, 22 Cal., 211; Lowndes r. Bettle, 33 L. J. Ch., 451. •Akrill r. Selden, 1 Barb., 316. T' Mitchell r. Dors, 6 Ves., 147; Hanson r. Gardiner, 7 Ves., 305. CHAP. XII.] AGAINST TRESPASS. 683 §716. Removal of asphaltum; landing- of passengers; dis- solution of injunction. The removal of asphaltum from com- plainant's land, thus depriving him of a part of his inherit- ance, which can not be replaced, affords ground for an in- junction.*^ And upon similar grounds the relief may be granted to prevent the removal of earth from plaintiff's prem- ises for the manufacture of brick.''' But the landing of pas- sengers from a steamboat at complainant's dock does not constitute an injury so irreparable as to call for relief in equity.^ And an injunction granted against waste will be regarded as a mere injunction against trespass, on answer showing no privity of title, and the equity of the bill being denied, a dissolution follows as of course.*-^ §717. Insolvency; continuing- act. Insolvency of the tres- passer affords additional ground for the interference, since his inability to respond in damages renders the remedy at law ineft'ectual.^*^ And an act which, in itself, might not. result in serious damage, may, from its continuance, consti- tute a trespass resulting in irreparable injury.^^ And where the trespass consists of continuous and repeated acts, which can be redressed at law only by a multiplicity of suits, an injunction may be granted.^- But a trespass w^ill not be en- joined solely upon the ground of the insolvency of the tres- passer, when it does not appear that adequate relief may not be had by an action for damages.^ -^ § 718. When plaintiff left to remedy at law. When plain- tiff' is permitted to maintain an action at law for trespasses 6 More V. Massini, 32 Cal., 590. 787; Hanly v. Watterson, 39 West 7 Bates V. Slade, 76 Ga., 50. Va., 214, 19 S. E.,' 536. 8 New York P. & D. Establish- n Hopkins c. Chaddick, 18 L. T., ment v. Fitch, 1 Paige, 97. 236. 9 Stewart v. Chew, 3 Bland, 440. ^- Mills v. New Orleans Seed Co., 10 Musselman v. Marquis, 1 65 Miss., 391, 4 So., 298. And see. Bush, 463; Milan Steam Mills v. ante, § 697. Hickey, 59 N. H., 241 ; Long v. is Mechanics Foundry of San Kasebeer, 28 Kan., 226; Champ v. Francisco v. Ryall, 75 Cal., 601, 17i Kendrick, 130 Ind., 549, 30 N. E., Pac, 703. And see, ante, § 18. 684 INJUNCTIONS. [chap. xit. committed upon land from which he has been disseized and of which defendant is in the adverse possession, a court of equity will not interfere by injunction to prevent the com- mission of threatened trespasses, but will leave the party ag- grieved to pursue his remedy at law.^-* § 719. Distinction between articles of necessity and of lux- ury. A distinction has been taken between trespasses con- sisting in the removal of such articles from one's premises as are necessary to their enjoyment, and such as are merely articles of convenience or luxury ; and while in the former case the injury would prove irreparable, and the injunction is therefore granted,^ ■'"' in the latter, the articles being merely articles of convenience, ample remedy may be had at law for their removal, and equity will not interfere.^ ^ § 720. When discretion of inferior court not interfered with. It is held that an appellate court will not control the discretion of an inferior court in refusing to grant an in- terlocutory injunction to restrain the commission of a tres- pass, when defendants in the action are fully able to respond in damages upon the final hearing of the cause.^''' § 721. When interlocutory injunction retained to the hear- ing. When the threatened trespass would inflict great and irreparable injury upon complainant's property and is of such a character as equity may properly enjoin, the bill de- nying defendant's right, and defendant by his answer show- ing such circumstances of acquiescence on his part as to render his assertion of the right inequitable, the preliminary injunction may properly be retained until the final hearing.' ^ So when complainant claimed the exclusive right to take oysters from a pai-ticular part of a bay, which had been i4Felton V. Justice, 51 Cal., 529; it Summerville Co. v. The Au- Taylor /;. Clark. 89 Fed., 7. gusta Co., 56 Ga . 527. 1'- Witmer'.s Appeal, 45 Pa. St., i«. Johnston r. Hyde, 10 C. E. 455. Green, 454. i« Clark's Appfal, tIL' Pa. St.. 447. CHAP. XI].] AGAINST TEESPASS. 685 planted, staked off and claimed by bini exclusively, an in- junction restraining defendants from taking oysters there- from was regarded as proper to be continued until the hear- ing, when the question of right could be finally determined, most of the defendants being insolvent.^'* And it has been held where a preliminary injunction is granted against a trespass of an irreparable nature, and the effect of dissolv- ing it would be to change the possession of real property, tliat it should be retained until the hearing.-^ § 722. Requisites of bill ; damages awarded in same action. When relief is sought by injunction against the commis- sion of a threatened trespass, it is not sufficient that the bill contains mere general averments of irreparable mis- chief, but the facts constituting such mischief should be set forth.-^ And in the absence of any allegations that the tres- pass is a continuing one, or is likely to be continued, the in- junction will be withheld.-- But it is a sufficient setting forth of complainant's title if he alleges himself to be the owner in fee simple by purchase and to be in posses- sion.-^ And upon a bill to restrain a threatened trespass, the court having granted an injunction may, to prevent a multiplicity of suits, entertain jurisdiction in the same ac- tion to fix the damages sustained by the injury in question before the injunction was granted.-^ § 722 a. TYespass upon public lands enjoined. Encroach- ments in the nature of trespasses upon the public lands of the United States may be enjoined at the suit of the gov- ernment.--'' And in such cases the injunction may be made i« Britton's Adm'r v. Hill, 12 C. -•' Vanwinkle r. Curtis, 2 Green E. Green, 389. Ch., 422. -0 Boedieker v. East, 24 La. An., 24 Winslow v. Nayson, 113 Mass., 154. 411. 21 White V. Flannigan, 1 Md., 2.-, United States v. Brighton 525; Waldron y. Marsh, 5 Cal., 119; Ranche Co., 25 Fed., 465; S. C, Carlisle v. Stevenson, 3 Md. Ch.. 26 Fed., 218; United States v. 499. Cleveland & C. C. Co., 33 Fed., 323. 22 Coker v. Simpson, 7 Cal., 340. 686 INJUNCTIONS. [CHAr. XII. mandatory to compel defendant to remove obstructions, such as fences, which he has erected upon the public domain.^s § 722 h. Adoption of legal remedy as test to relief. An examination of the later authorities upon the subject of in- junctions against trespass discloses a decided tendency to adopt the adequacy or inadequacy of the legal remedy as the sole and ultimate test as to the right to equitable re- lief in such cases, and it will be seen that the question of irreparable injury is of importance only in so far as it bears upon this fundamental question of the legal remedy. While the courts have, perhaps, never in express terms laid this down as the sole criterion, it will be seen that injunctive relief is freely granted regardless of the irreparable char- acter of the injury inflicted, where it appears for any reason that full and complete redress may not be had in a court of law. Such considerations as those of a multiplicity of suits,, the continuing nature of the trespass, the insolvency of the defendant, numerous acts where the damages for a single one would be insignificant, and the difficulty of proving or meas- uring the damages, all of which concern the remedy and not the wrong, and all of which have come to be of such con- trolling force, show beyond question that it is not so much the nature or kind of the wrong complained of as it is the relative efficiency of the legal as compared with the equitable remedy, which furnishes the fundamental, governing rule by which courts of equity are guided in administering pre- ventive relief against the commission of a trespass. 26 United States v. Brighton Goodnight, 70 Tex., 682, 11 S. W., Ranche Co., 25 Fed., 465; S. C, 119. 26 Fed., 218. See also State v. CHAP. XII.] AGAINST TRESPASS. II. Cutting Timber. § 723. A strong case of destruction or of irreparable mischief must be made out. 724. Cutting of all the wood on premises may l)e enjoined. 725. Rule as to timber already cut. 726. Possession coupled with title. 727. Fruit trees and ornamental shrubbery; insolvency; value of property. 728. State of plaintifC's title. 729. Fraud a ground for relief. § 723. A strong case of destruction or of irreparable mis- chief must be made out. Although the modern doctriiie of courts of equity in restraining trespass is, as we have seen, more liberal than the ancient, yet a strong case of destruc- tion or irreparable mischief must be made out, since courts of law are, in general, the proper forum for disposing of actions of trespass. And the fact that the title to the prem- ises is disputed, as between the devisee and an heir at laAV, constitutes an effectual bar to the granting of an injunction against the cutting of timber.^ Nor will the relief be granted when plaintiff fails to show by his bill a good title to the premises.^ Even the cutting and removal of timber from pine lands, valuable chiefly for the timber, is not such a case of irreparable injury as will warrant an injunction, where defendant claims , part of the land by adverse title, and the real ownership is in doubt.^ So equity will not en- join the cutting of timber from lands which are valuable chiefly for mines.'* Nor will the relief be granted where it 1 Smith V. Collyer, 8 Ves., 89. Lumber Co., 99 N. C, 11, 5 S. E., - Cox V. Douglass, 20 West Va., 19. As to the right to enjoin the 175; Schoonover v. Bright, 24 cutting and removal of timber in West Va., 698. Kentucky, see Hillman v. Hurley, 3 West V. Walker, 2 Green Ch., 82 Ky., 626. 279. See also Powell v. Rawlings, -^ Heaney v. Butte & M. C. Co., 38 Md., 239; Roper Lumber Co. v. 10 Mont., 590, 27 Pac, 379. Wallace, 93 N. C, 22; Lewis v. 688 INJUNCTIONS. [chap. XII. is not shown that the injury is irreparable.^ And where a statute gives ample remedy in addition to that at common law, equity will not restrain the cutting and removal of timber, where it does not appear that defendants are in- solvent.^ So, too, if the allegations of the bill are vague and general as to the threatened removal of the timber, and are made upon belief, the court will not interpose."^ Nor will mere threats of defendant to cut wood on complainant's land suffice to perpetuate an injunction already granted.^ And it has been held that the working of turpentine trees and cutting timber for staves, the land being valuable only for this purpose, will not warrant the relief in the absence of any proof of defendant's insolvency, since the remedy at law is ample.^ § 724. Cutting of all the wood on premises may be en- joined. Where, however, the trespass consists in the cutting of timber upon complainant's lands, going to the destruc- tion of that which is essential to the value of the estate, and to the destruction of the estate itself in the character in which it has been enjoyed, a fitting case is presented for re- lief by injunction.i*^ And the destruction of all the timber on complainant's premises, where wood and timber are needed for the enjoyment of the property, will be enjoined, even though damages might be had at law, on the ground that the owner is thereby deprived of the use of his prop- '■ Myers v. Hawkins, 67 Ark., 251; Wadsworth v. Goree, 96 Ala., 413, 56 S. W., 640. 227, 10 So., 848; Griffith v. Hilliard, "Cowles V. Shaw, 2 Iowa, 496. 64 Vt., 643, 25 Atl., 427; Sautee T Cornelius v. Post, 1 Stockt., 196. River Cypress Lumber Co. v. s Woods V. Kirkland, 2 La. An., James, 50 Fed., 360; King v. Stuart, 337. 84 Fed., 546; King r. Campbell, 85 ■' Gause r. Perkins, 3 Jones Eq., Fed., 814. And see Kelly v. Robb, 177; McCormick v. Nixon, 83 N. C, 58 Tex., 377; Camp v. Dixon, 112 113; Carney v. Hadley, 32 Fla., Ga., 872, 38 S. E., 71. 52 L. R. A.. 344, 14 So., 4, 22 L. R. A., 233, 37 755. As to the right to relief when Ara. St. Rep., 101. the title is in dispute, see, ante, § 10 Fulton V. Harman. 44 Md., 698. CHAP. XII.] AGAINST 'J'PiESI'ASS. 689 erty in the manner in wliicli he has been aecustomed to en- joy it. Nor will the relief be withheld because the bill omits to charge the injury as irreparable, provided sufficient facts are alleged to satisfy the court that such would be the case.'^ And the destruction of forest trees is such an irreparable injury as will authorize the interference.' 2 Qq h^q cutting and removal of growing walnut trees from plaintiff's prem- ises, which he had reserved for a timber lot, may be en- joined as a trespass of such a nature as not to be susceptible of adequate compensation in an action for damages.'^ And where an appeal is pending from a decree which adjudicates the question of title to timber lands, and, pending the ap- peal, the appellee enters upon the lands and proceeds to cut the timber which is their chief value, an injunction will be granted restraining such trespass until the final determination of the appeal.^"* But if complainant is in possession, with adequate remedy at law for the cutting of his timber, equity will not interfere.^ ^ 11 Davis t'. Reed, 14 Md.. 152. 1- De la Croix v. Villere, 11 La. An., 39. 1- Thatcher v. Humble, 67 Ind., 444. 1* Wood V. Braxton, 54 Fed., 1005. 15 Stevens v. Beekman, 1 Johns. Ch., 318. This was a bill to re- strain defendants from cutting timber, their only claim of title being from the plaintiff in an ac- tion of ejectment pending and un- determined. Kent, Chancellor, held as follows: "This is a case of an ordinary trespass upon land and cutting down the timber. The plaintiff is in possession and has adequate and complete remedy at law. This is not a case of the usual application of jurisdiction by injunction; and if the precedent were once set, it would lead to a revolution in practice; for tres- passes of this kind are daily and hourly occurring. I doubt exceed- ingly whether this extension of the ordinary jurisdiction of the court would be productive of pub- lic convenience. Such cases are generally of local cognizance, and drawing them into this court would be very expensive and other- wise inconvenient. Ixird Eldon said that there was no instance of an injunction in trespass until a case before Lord Thurlow, relative to a mine, and which was a case approaching very nearly to waste, and where there was no dispute about the right. Lord Thurlow had great difficulty as to injunc- 690 INJUNCTIONS. [chap. XII. § 725. Rule as to timber already cut. The disposition of timber already cut at the time of obtaining the injunction may be taken into consideration by the court in granting the relief. Thus, it is held that the patentee of public lands, while he may restrain the future cutting of timber upon his premises, will not be allowed to enjoin the removal of tim- ber which had been cut before he obtained his patent.^^ Upon the other hand, where an action of ejectment is pend- ing to determine the disputed question of title to the locus in quo, the defendant may be enjoined, not only from cutting the timber, but from removing that which is already cut.^''' § 726. Possession coupled with title. While equity will not restrain the commission of a trespass upon realty unless the right is clear and the mischief irreparable,^^ yet where there has been a long and undisturbed possession of the premises under title deducible of record, such possession, coupled with unquestioned evidence of title, will authorize the relief as against a mere trespasser without color of right.i9 §727. Fruit trees and ornamental shrubbery; insolvency; value of property. The destruction of fruit trees and or- namental shrubbery is an injury to the realty so irreparable in its nature that equity will interfere.-*^ Nor does it make any difference whether the trees were planted by the owner for shade or ornament, or whether they were so situated nat- urally as to serve this purpose.-^ And it is not necessary tions for trespass; and, though is Peck v. Brown, 5 Nev., 81. Lord Eldon thought it surprising i^ King r. Campbell, 85 Fed., 814. that the jurisdiction by injunction is Gause r. Perkins, 3 Jones Eq., was taken so freely in waste and 177; Schurmeier v. St. Paul & P. not in trespass, yet he proceeded R. Co., 8 Minn., 113. with the utmost caution and diffi- i" Falls V. W. P. Co. v. Tibbetts, dence, and only allowed the writ 31 Conn., 165. in solitary cases of a special na- -•* Daubenspeck i\ Grear, 18 Cal.» lure, and where irreparable dam- 443. age might be the consequence if 21 Shipley v. Ritter, 7 Md., 408. the act continued." 44 CHAP. XII.] AG.IINST TRESPASS. 691 in a bill filed to restrain trespass to the realty to allege abso- lute insolvency of the defendant, but it will suffice that such facts appear as show that a judgment for damages would be entirely worthless.-- And the jurisdiction of the court in this class of cases does not depend upon the value of the property destroyed, but upon the question whether its destruc- tion would materially impair the enjoyment of the property as held and occupied at the time of the commission of the trespass.-^ §728. State of plaintijff's title. Equity will not restrain the cutting of timber when complainant does not expressly aver in his bill title in himself to the premises in question, and when he does not allege the insolvency of defendants, or otherwise show that he has not a complete remedy at law.-^ Nor will the court interfere when the bill avers that complainant has sold the premises on which the timber is being cut.^^' And when both parties claim title to the land upon which the timber is being cut by defendant, and the proof does not show that the trees have any peculiar value, or that the enjoyment of the property will be so affected by the cutting as to render the injury irreparable, an injunc- tion will be refused, and complainant will be left to follow his remedy at law.-^ So when complainant claims to be en- titled under an agreement with defendant's grantors to re- move timber from defendant's premises, and seeks to restrain defendant from the cutting and remoVal of the timber, the relief will be denied upon the ground that the legal remedy by an action for damages is adequate.-'^ And where com- plainant obtains an interlocutory injunction to prevent de- fendant from cutting timber upon premises claimed by both 22 Hicks V. Compton, 18 Cal., 206. 25 McMillan v. Ferrell, 7 West 23 Shipley v. Ritter, 7 Md., 408. Va., 223. 24 McMillan v. Ferrell, 7 West Va., 26 Powell v. Rawlings, 38 Md., 223; Western M. & M. Co. v. Vir- 239. ginia C. C. Co., 10 West Va., 250. 2t Griffin v. Winne, 10 Hun, 571. 692 INJUNCTIONS. [chap. Xll. parties, but the only proof of complainant's title adduced upon the hearing is an award which the court finds to be invalid by reason of misconduct of the arbitrator, and all the allegations of complainant's title are denied by the an- swer and unsustained by proof, it is proper to dissolve the injunction and to dismiss the bill.-^ § 729. Fraud a ground for relief. The element of fraud upon the part of defendant in connection with the cutting of timber may constitute sufficient ground for extending relief by injunction. Thus, when a judgment creditor takes from his debtor a conveyance of his lands in satisfaction of the judgment, and a third person, with full knowledge of the facts, secretly and fraudulently obtains from the judgment debtor a conveyance of the timber growing upon the lands conveyed, such person may be enjoined from cutting and removing the timber, the relief being based in such case upon the well established jurisdiction of equity in matters of fraud.29 28 Tate V. Vance, 27 Grat, 571. 29 Raines v. Dunning, 41 Ga., 617. CHAP. XII. J AGAINST TRESPASS. 693 III. Trespass to Mines. § 730. Greater latitude in cases of mines. 731. Complainant's title; removal of ore; expenditures by defend- ant. 732. Title must be established at law. 733. Flowing of refuse matter may be enjoined; when perpetual in- junction awarded. 734. Working through into another's mine; digging ore on public land. 735. Placer mines. 736. Rights of surface owner. 737. Reducing pillars in mine; mandatory injunction. 738. Diversion of water from tunnel. § 730. Greater latitude in cases of mines. In the case of trespass to mining property greater latitude is allowed courts of equity than in restraining ordinary trespasses to realty, since the injury goes to the immediate destruc- tion of the minerals which constitute the chief value of this species of property. Where, therefore, the trespass consists in the removal of ore from complainant's mines, the legal title being clearly established in complainants, they are entitled to an injunction, even though an action at law would lie.^ And upon similar principles equity will interfere by injunction to restrain the removal of 1 Merced M. Co. v. Fremont, 7 892; Chambers v. Alabama Iron Cal., 317; Scully v. Rose, 61 Md., Co., 67 Ala., 353; Nichols v. Jones, 408; Silva v. Rankin, 80 Ga., 79, 19 Fed., 855; Cheesman v. Shreve, 4 S. E., 756; Lockwood r. Luns- 37 Fed., 36. Anderson r. Harvey, ford, 56 Mo., 68; Anderson v. Har- 10 Grat., 386, was a bill for an in- vey, 10 Grat., 386; Allen v. Dun- junction to restrain the removal of lap, 24 Ore., 229, 33 Pac, 675; ore from complainant's mines. Muldrick /•. Brown, 37 Ore., 185, 61 Daniel, J., pronouncing the opinion Pac, 428; Oolagh Coal Co. v. Mc- of the court, says: "The practice Caleb, 15 C. C. A., 270, 68 Fed., 86; of courts of equity of interfering Dimick ?;. Shaw, 36 C. C. A., 347. in such cases by way of injunction, 94 Fed., 266. And see Hammond is one comparatively of recent f. Winchester, 82 Ala., 470, 2 So., origin; but the jurisdiction is 694 INJUNCTIONS. [CIIAP. XII. stone from a quarry.- And although the jurisdiction of the court over the parties is put in issue by plea, if the bill contains sufficient averments of jurisdiction the court may award a temporary injunction to stay the mischief until the question raised by the plea can be determined.^ §731. Complainant's title; removal of ore; expenditures by defendant. While the general rule requiring complainant to show a good title extends to trespass against mines, yet it may be relaxed somewhat in a case of irreparable mischief, where the injury goes to the destruction of the very sub- stance of the estate. And in such a case the injunction will not be limited to the prevention of future trespass, but will restrain the removal of ore already extracted from the mine.^ And where the title is in dispute and the injury would be great, an injunction may be granted pending the determination of the question of title in an action at law.^ If, however, defendants have been in possession for a now fully recognized and well es- tablished by cases both in Eng- land and America. Mitchell r. Dors, 6 Ves. R., 147; Hanson r. Gardiner, 7 Ves. R., 305; Thomas v. Oakley, 18 Ves. R., 184; 3 Dan- iel's Ch. Pr., 1631-2; Stevens v. Beekman, 1 John. Ch. R., 318; Jer- ome V. Ross, 7 John. Ch. R., 315; Smith V. Pettingill, 15 Verm. R., 84. The land upon which the tres- pass is alleged to be committed is proved to be of little or no value except for the iron ore found on it, which is proved to be of an ex- cellent quality. The trespass is one which goes to the change of the very substance of the inheritance, to the destruction of all that gives value to it. The fact proved by the appellant that the value of the ore per load could be readily esti- mated, does not deprive a court of equity of its right to interfere in the case by way of injunction. The same might be shown in most cases of the kind. The products of most mines have a value already fixed or easy of ascertain- ment by proof; yet it was in pre- vention of like trespasses to this very species of property, mines of ore, coal, etc., that the jurisdiction in question had its origin and still continues to be most frequently exercised." - Norton t C, 330. •' Fremont Snyder, 4 Thomp. & Co., t\ Merced M. McAl. C. C, 267. 4 United States r. Parrott, McAl. C. C, 271, and cases cited; Er- hardt v. Boaro, 113 U. S., 537. •> Thomas v. Nantahala M. & T. Co., 7 C. C. A., 330, 58 Fed., 485. And see, a7ite, § 698. CHAP. XII.] AGAINST TEESPASS. 695 considerable time, and have expended large sums of money in developing the mine, the injunction will not be allowed except upon a very strong showing/' And where com- plainant seeks to restrain the mining and taking of ores from mineral lands, but his only right or title is based upon a parol lease or license, the proof in support of which is not clear or satisfactory, an injunction should not be allowedJ Nor will equit}^ interfere where it does not appear that the trespass complained of consists in the removal or threatened removal of ore or in some other act going to the injury or destruction of the mine.'^ Nor will defendants be enjoined from an alleged trespass, resulting from their preparations for mining coal, in which complainant has allowed them to pro- ceed for tw^o years, and to expend considerable sums of money, without objection.^ § 732. Title must be established, at law. The jurisdiction in restraint of trespass to mines is not an original jurisdiction of equity, under which the court would be justified in trying the title to the mines themselves, and the party aggrieved must therefore first establish his title at law, or show satis- factory reason for not doing so.i° And an injunction has been refused when defendants claimed under an adverse title, and when plaintiffs had allowed nearly a year to pass, after defendants had begun working the mine, before seek- ing relief.^ ^ So it is proper to refuse the injunction when plaintiff's right is by no means clear, and when his remedy at law is adequate.^- So an injunction should be refused where 6 Real Mining Co. r. Pond Min- lo Irwin r. Davidson, 3 Ired. Eq., ing Co., 23 Cal., 82. And see 311; Smith v. Jameson, 91 Mo., 13, Bishop V. Baisley, 28 Ore., 119, 41 3 S. W., 212. But see, contra, New Pac, 937. Jersey Z. & I. Co. v. Trotter, 38 - Clegg V. Jones, 43 Wis., 482. N. J. Eq., 3. 8 Parlier v. Furlong, 37 Ore., 248, n Haigh v. Jaggar, 2 Coll., 231. 62 Pac, 490. 12 Howe r. Rochester I. M. Co., Birmingham C. Co. v. Lloyd, 66 Barb., 592. 18 Ves., 515. 696 INJUNCTIONS. [chap. XII. the line beyond which the defendant must cease operations can not be ascertained with precision and certainty. ^-'^ And when defendants are in possession under claim of title made in good faith, it is proper to refuse an injunction and to leave the parties to their remedy at law to determine the question of title.^^ It is not necessary, however, that the owner should have actually established his title by an action at law, and if he makes out a good prima facie title, which is not controverted by defendant, and shows that those under whom he claims have been in possession and use of the mine for a long period of years, he is entitled to an injunction to prevent such depredations upon his mine as are likely to result in irreparable injury.^ ^ And it is proper to grant an injunction pendente lite to restrain de- fendants from w^orking their mines in such manner as to endanger that of plaintififs, with directions to plaintiffs to bring an action to establish their title at law.^^ § 733. Flowing of refuse matter may be enjoined; when per- petual injunction awarded. The jurisdiction is not confined to restraining the removal of ore, but equity will interfere in behalf of prior occupants of mining claims, to restrain the flowing of refuse matter over their claims by adjoining own- ers.^ '^ So a company engaged in mining in the vicinity of plaintiff's premises may be restrained from flooding and cover- ing plaintiff's land with the sand, gravel and debris from such 1'! St. Louis M. & M. Co. v. Mon- a receiver. Parker v. Parker, 82 tana M. Co., 58 Fed., 129. N. C, 165. i< Leininger's Appeal, 106 Pa. is West Point Iron Co. v. Rey- St., 398. It is held in North Caro- mert, 45 N. Y., 703. lina, where defendants are in pos- i« Duke of Beaufort v. Morris, 6 session of and working a mine Hare, 340. claiming as tenants in common i" Logan v. Driscoll, 19 Cal., 623. with plaintiffs, that it is improper But see Lord's Executors v. Car- lo enjoin defendants in the first in- bon I. M. Co., 38 N. J. Eq., 452; Htance from working the mine, and McCauley v. McKeig, 8 Mont., 389. that the appropriate remedy in 21 Pac, 22. such case is by the appointment ot CHAP. XII.] AGAINST TRESPASS. 697 mines, thereby rendering it valueless for agricultural pur- poses.^^ And if the answer admits the entry and working of complainant's mine, but denies his title, upon satisfactory proof of his title a perpetual injunction should be awarded.^ '^ § 734. Working through into another 's mine ; digging ore on public land. Where one in digging coal upon his own premises has worked through into the ground of another, he may be enjoined from proceeding farther.-^ And the digging of lead ore from the public lands of the United States, is such a trespass as will warrant the interference of equity in behalf of the government.^^ So a state may enjoin persons from digging phosphate rock and deposits from the bed of a navigable stream within the state.22 § 735. Placer mines. It is thus apparent that courts of equity are inclined to a somewhat liberal use of the remedy by injunction to prevent trespasses to mines, the relief being granted for the prevention of irreparable injury resulting as well from the character of the property as from the nature of the trespass. And the relief is regarded as peculiarly ap- plicable to the case of a placer mine, the value of which, consists in auriferous deposits, which may be worked out and removed without leaving any evidence of their value upon which to base an accounting. Where, therefore, plaintiffs by their location have acquired a right to possess such placer mines and to appropriate the minerals therein, 18 Hobbs V. Amador & S. C. Co., let one to a tenant, who took coal 66 Cal., 161, 4 Pac, 1147. See also out of that close, and also out of People V. Gold Run D. & M. Co., 66 the other, which was not demised; Cal., 155, 4 Pac, 1150. and the difficulty was, whether 19 McLaughlin v. Kelly, 22 Cal., the injunction should go as to 211. both; and it was ordered as to 20 Mitchell V. Dors, 6 Ves., 147. both." Says Lord Eldon: "That is tres- 21 United States v. Gear, 3 How., pass, not waste. But I will grant 121. the injunction upon the authority -~ Coosaw Mining Co. v. South of a case before Lord Thurlow; a Carolina, 144 U. S., 550, 12 Sup. Ct. person, landlord of two closes, had Rep., 689, affirming S. C, 47 Fed., 225. 698 INJUNCTIONS. [chap. XII. the}^ may obtain the aid of equity by injunction to prevent defendants from encroaching upon their mines.^^ § 736. Rights of surface owner. A surface owner of lands is also entitled to an injunction to prevent the owner of minerals beneath the surface from obtaining them in such manner as to destroy or seriouslj^ injure the surface.-^ But when the grant- or of real property reserves to himself all mines and minerals under the land, with the right to dig for and take them away, covenanting to make compensation to the surface owner, his grantee, for any damage which may be occa- sioned thereby, the surface owner will not be allowed to enjoin his grantor from taking minerals from under the land so conveyed.-^ §737. Reducing pillars in mine; mandatory injunction. The lessee of a mine who has worked it out may be enjoined by the lessor from proceeding to reduce the pillars, which had been left to support the roof of the mine, in such manner as to endanger the falling in of the roof and the flowing in of water upon the mine.^^ So when plaintiffs and defendants own and operate iron mines ad- joining each other, defendants may be restrained from re- moving the pillars, walls and other supports of their mine to such an extent as to render the surface liable to fall in, to the irreparable injury of plaintiff's mine.^''' And where the lessee of a mine had worked into complainant's prem- ises and extracted a large quantity of ore therefrom, a mandatory injunction was granted requiring defendant to permit complainant to inspect the mine for the purpose of determining the extent of the injury.^s 2'! Chapman v. Toy Long, 4 Sawy., 20 Thomas Iron Co. r. Allentowu 28. Mining Co., 28 N. J. Eq. (1 Stew.), 2-» Hext V. Gill, L. R. 7 Ch., 699. 77. 2-' Aspden v. Seddon, L. R. 10 27 Lord's Executors r. Carbon I. Ch., 394. M. Co., 38 N. J. Eq., 452. 28 Thomas Iron Co. v. Allentown CHAP. XII.] AGAINST TRESPASS. 690 § 738. Diversion of water from tunnel. Where plaintiffs are entitled to a stream of water running through their tun- nel which is used for mining purposes, and defendants divert the water from plaintiff's tunnel by running their own tun- nel underneath it, they may be enjoined if in so conducting their tunnel they are not digging in their own lands and when the water is not shown to come from their own lands. -'-^ Mining Co., 28 N. J. Eq. (1 Stew.), 29 Cole Co. v. Virginia Co., 1 77. Sawy., 470. CHAPTER XIII. OF INJUNCTIONS AGAINST NUISANCE. I. Grounds of the Jurisdiction § 739 II. Public Nuisances 759 III. Nuisances to Dwellings 772 IV. Nuisances to Water 794 v. Streets and Highways 816 VI. Railways 826 VII. Bridges 833 VIII. Mell-Dams 839 I. Grounds of the Jurisdiction. § 739. Foundation of the relief; distinction between trespass and nui- sance. 740. Right should be established at law; relaxation of rule; injury should be irreparable; relative convenience and inconvenience. 741. When right sufficiently established at law; threatened nuisance. 742. Injunction denied when nuisance uncertain; illustrations. 743. The same. 744. Injunction refused when facts uncertain; when bill dismissed without prejudice. 745. Remedy at law a bar to injunction. 746. Difficulty of abating nuisance. 747. Prohibition of business by municipal authorities. 748. Erection of wooden buildings; conflict of authority. 749. Abatement and damages in statutory action. 750. Construction of ditch. 751. Throwing surface water upon adjacent lands. 752. Lawful business not enjoined; criminal liability no bar tO relief. 753. Right to lateral support protected. 754. Burning wooded lands. 755. Exclusive right of slaughtering animals. 756. Effect of acquiescence and delay; effect of release; hindrance by plaintiff. 757. Joinder of parties. 758. When injunction perpetuated; when made mandatory. 700 CHAr. XIII.] AGAINST NUISANCE. 701 § 739. Foundation of the relief ; distinction between tres- pass and nuisance. The foundation for the interference of equity in restraint of nuisances rests in the necessity of pre- venting irreparable mischief and multiplicity of suits. The principles governing courts of equity in the exercise of this jurisdiction are closely allied to those which control their action in restraining trespasses. The distinction between tres- pass and nuisance consists in the former being a direct in- fringement of one's rights of property, while in the latter the infringement is the result of an act which is not wrongful in itself, but only in the consequences which may flow from it. In the one case the injury is immediate; in the other it is consequential, and generally results from the commis- sion of an act beyond the limits of the property affected. i And the injury must be such as is not susceptible of ade- quate pecuniary compensation in damages, or one the con- tinuance of which would cause a constantly resurring griev- ance.2 §740. Right should be established at law; relaxation of rule; injury should be irreparable; relative convenience and inconvenience. The concurrent jurisdiction of courts of equity, by the writ of injunction, with courts of law in cases of private nuisance is ancient and well established.^ To war- rant the interference, a strong case of imperative necessity must appear, and the nuisance must be in derogation of rights long previously enjoyed.* As a general rule it is necessary that the person seeking the aid of equity to re- strain a private nuisance should have first established his right at law, and where the right is doubtful and has not 1 Reynolds v. Clarke, 2 Ld. Paper Co. r. Ford. 6 Del. Ch., 52. Raym., 1399; Weston v. Wood- 33 Atl., 618. cock, 5 M. & W., 587. 3 Gardner r. Newburgh, 2 Johns. - New York v. Mapes, 6 Johns. Ch., 162. Ch., 46; Mohawk & H. R. Co. v. 4 Van Bergen r. Van Bergen, 3 Artcher, 6 Paige, 83; Dana v. Val- Johns. Ch.. 282; Porter i: Witham, entine, 5 Met., 8; Jessup r. Moore 17 Maine, 292. 702 INJUNCTIONS. [chap. XIII. been established, the relief will be withheld.^ Thus, where the complainant has failed to obtain judgment against de- fendants in an action at law for the nuisance, and legal proceedings are still pending, the injunction will be denied.*^ And where defendant's right to erect the structure com- plained of as a nuisance is in dispute, and is not clearly established at law, the court will not interfere.'^ And espec- ially will relief be denied where, in an action for damages resulting from the alleged nuisance, there has been a verdict and judgment for the defendant.^ And where it is sought to enjoin the obstruction of an easement consisting of a right 5 Mayor v. Ciirtiss, Clarke Ch., 336; Rhea v. Forsyth, 37 Pa. St., 503; Mammoth Co.'s Appeal, 54 Pa. St., 183; City of New Castle V. Raney, 130 Pa. St., 546, 18 Atl., 1066, 6 L. R. A., 737; Mowday v. Moore, 133 Pa. St., 598, 19 Atl., 626; Wood v. McGrath, 150 Pa. St., 451, 24 Atl., 682, 16 L. R. A., 715; Arnold v. Klepper, 24 Mo., 273; Porter v. Witham, 17 Me., 392; Tracy v. Le Blanc, 89 Me., 304, 36 Atl., 399; Sterling v. Lit- tlefield, 97 Me., 479, 54 Atl., 1108; Kennerty v. Etiwan Phosphate Co., 17 S. C, 412; Van Bergen v. Van Bergen, 3 Johns. Ch., 282; Lowns- dale V. Gray's H. B. Co., 117 Fed., 983; McCord v. Iker, 12 Ohio, 387. In the latter case. Reed, J., ob- serves: "The ground upon which the interference of a court of equity is invoked, is that the mis- chief to complainant's property is irreparable, and that actions at law furnish no adequate relief. Whilst this is an admitted ground of equity jurisdiction, courts of chancery will carefully abstain from interference where the injury will support an action at law, un- less the party seeking such aid brings himself within the clearest principle of equitable relief. But if it be necessary to prevent a per- manent injury to property, or its entire ruin, from the erection and continuance of a nuisance, and the law can not prevent the evil, equity will interfere, although the property itself may be of small value. But, in cases of this sort, equity will not interfere until the right and the facts have been es- tablished beyond doubt, at law." And it has been held that the re- quirement that the right, when in doubt, must be first established at law, is jurisdictional and that the court may therefore raise the ob- jection of its own motion where it is not raised by the pleadings or asserted in the argument. Mirkil V. Morgan, 134 Pa. St., 144, 19 Atl., 628. c Durant v. Williamson, 3 Halst Ch., 547. 7 Irwin n. Dixon, 9 How., 10. s Bierer r. Hurst, 162 Pa. St, ], 29 Atl., 98. And see, post, § 760. I CHAP. XIII.] AGAINST NUISAXCE. 703 of way and it appears that the land over which the ease- ment is claimed has been sold for taxes and a tax deed issued, which, if valid, would result in an extinguishment of the easement, relief will be denied until the plaintiff first estab- lishes his legal right as against the validity of the tax deed.^ And while a trespass affords no foundation for an injunc- tion where it is only contingent and temporary, yet if it continues so long as to become a nuisance, equity may properly enjoin.^*^ To warrant the exercise of the jurisdic- tion in restraint of nuisance, the same irreparable injury must be shown as in the case of trespass, and where this does not appear the person will be left to his remedy at law.^^ Nor will equity interfere where the injury is of a trifling or temporary character.^ 2 And when the alleged nuisance consists in the sale of an adulterated article, although the act itself may be illegal, it will not be enjoined as a nuisance when it is not shown to be dangerous to life or health.13 And in granting injunctions against nuisances, as in other cases of relief by injunction, the court may prop- erly be guided by the consideration of the relative conven- ience and inconvenience of the parties; and if it appears that the benefit resulting to the plaintiff' from the granting of the writ will be slight as compared with the injury to the defendant, the relief may be denied and the plaintiff' left to the pursuit of his remedy at law.^'* As above indicated, the rule requiring the right to be first established at law, as a condition to the granting of equitable relief, is confined to cases where the right is doubtful or is actually in dispute, 9 Oswald «;. Wolf, 129 111., 200, 21 C. Co., 3 DeGex, M. & G., 304; N. E., 839. Swaine v. Great N. R. Co., 33 L. J. 10 Coulson V. White, 3 Atk., 21. Ch., 399. 11 Fort (/•. Groves, 29 Md., 188. i3 Health Department v. Purdon, See also Hawley v. Beardsley, 47 99 N. Y., 237, 1 N. E., 687. Conn., 571. 1* Clifton Iron Co. v. Dye, 87 i2McCord V. Iker, 12 Ohio, 387; Ala., 468, 6 So., 192. Attorney-General v. Sheffield Gas '''04 INJUNCTIONS. [CfTAP. XIII. and where it is not denied, or, if denied, is nevertheless free from substantial doubt, and the facts establishing the nui- sance, and the existence of the nuisance itself are clear, the relief will be granted in the first instance without requiring the right to be established in an action at law.i''» And where the injury complained of is a constantly recurring one as distinguished from one which is permanent, it is no defense that the plaintiff has recovered a judgment at law for dam- ages arising from the nuisance where such judgment is for past damages only and affords no redress for those which arise in the future.^ ^' §741. When right sufficiently established at law; threat- ened nuisance. He who seeks an injunction against a nuisance is not regarded as having sufficiently established his rights at law by obtaining a judgment, if the action in which the judgment was recovered is still pending upon a writ of review.^ ^ Nor will equity interfere to restrain a nuisance unless it has undivided jurisdiction over the whole litigation, and where some of the questions in dispute are pending in actions at law, an injunction will not be allowed.i^ But where plaintiff* has obtained a judgment at law against de- fendants for a nuisance affecting his real property, and sub- stantial damages have been awarded him, it is almost a matter of course for equity then to enjoin the continuance of the nuisance.^-' And especially will the relief be granted in such case where the nuisance is a continuing one and the ir. Wahle V. Reinbach, 76 111., 322; 698, as to the relaxation of the rule Village of Dwight v. Hayes, 150 in cases of injunctions against 111., 273, 37 N. E., 218, 41 Am. St. trespass. Rep., 367; City of Kewanee v. "^ City of Kewanee r. Otley, 204 Otley, 204 111., 402, 68 N. E., 388; 111., 402, 68 N. E., 388. White V. Forbes, Walk. (Mich.), it Eastman v. Amoskeag Manu- 112; Hundley v. Harrison, 123 facturing Co., 47 N. H.. 71. Ala., 292, 26 So., 294; Sprague v. i^ Eastman v. Amoskeag Mann- Rhodes, 4 R. I., 301; Pennsylvania facturing Co., 47 N. H., 71. R. Co. /;. New York & U B. R. Co.. ':• Tipping d. St. Helen's Smelt- 8 C. E. Green, 157 See, ayite. § ing Co., L. R. 1 Ch.. 66. CHAP. XIII.] AGAINST NUISANCE. 705 damages recovered at law are nominal and therefore inade- quate to prevent a repetition of the wrong.-*^ And when there has been an action at law and a reference to arbitration and an award in favor of plaintiff's right, he will be regarded as having sufficiently established his right at law to warrant an injunction against the nuisance.^i So if plaintiff's right is clear and the injury is manifest and of a constantly recurring nature, the relief may be granted without requiring the fact of injury to be determined by an action at law.22 And where the acts which it sought to restrain will clearly result in a nuisance and are not denied or disavowed by the defendant, and the danger is threatened and impending, preventive relief by injunction will be granted although the nuisance does not yet exist in fact.^^ §742, Injunction denied when nuisance uncertain; illus- trations. When the injury complained of is not, per se, a nui- sance, but may or may not become so, according to circum- stances, and when it is uncertain, indefinite or contingent, or productive of only possible injury, equity will not interfere.^* 20 Paddock v. Stone, 102 Mo., moth, Freem. Ch., 505; McCutchea 226, 14 S. W., 746, 10 L. R. A., 254. v. Blanton, 59 Miss., 116; Thebaut 21 Imperial Co. v. Broadbent, 7 v. Canova, 11 Fla., 143; Shivery v. H. L., 600. Streeper, 24 Fla., 103, 3 So., 865; 22 Learned v. Hunt, 63 Miss., 373. Rhodes v. Dunbar, 57 Pa. St., 274; 23 Pierce v. Gibson County, 107 Simpson v. Justice, 8 Ired. Bq., Tenn., 224, 64 S. W., 33, 55 L. R. 115; Dorsey y. Allen, 85 N. C. 358; A., 477, 89 Am. St. Rep., 946. Maysville & Mt. S. T. R. Co. v. 24 Kirkman v. Handy, 11 Humph., Ratliff, 85 Ky., 244, 3 S. W., 148; 406; Laughlin v. President, 6 Ind., Pfingst v. Senn, 94 Ky., 556, 23 S. 223; Keiser v. Lovett, 85 Ind., 240; W., 358; Duncan v. Hayes, 7 C. B. Bowen v. Mauzy, 117 Ind., 258, 19 Green, 25; Hemsley v. Bew, 53 N. N. E., 526; Dunning v. Aurora, 40 J. Eq., 241, 31 Atl., 210; Earl of 111., 481; Lake View v. Letz, 44 Ripon v. Hobart, 3 Myl. & K., 169; 111., 81; Thornton v. Roll, 118 111., S. C, Coop. t. Brougham, 333; 350, 8 N. E., 145; Bell v. Riggs, Mohawk v. Utica, 6 Paige, 554; 38 La. An., 555; Rouse c. Martin, Morgan v. City of Binghamton, 75 Ala., 510; Rounsaville v. Kohl- 102 N. Y., 500, 7 N. B., 424; heim, 68 Ga., 668; Gwin v. Mel- Fletcher v. Bealey, 28 Ch. D., 688; 45 706 INJUNCTIONS. [CHAr. XIII. Chambers v. Cramer, 49 West Va., 395, 38 S. E., 691, 54 L. R. A., 545. Mohawk v. Utica, 6 Paige, 554, was a bill for an injunction to restrain defendants from the erection of a railroad bridge over the Mohawk river below complainant's bridge, one ground upon which relief was asked being that the proposed erection would endanger the safety ot complainant's bridge by dam- ming up the ice. Walworth, Chan- cellor, says: "The principles upon which this court should proceed in granting or refusing relief by injunction in cases of this kind, are correctly laid down by Lord Brougham in the recent case of the Earl of Ripon v. Hobart (Cooper's Rep. Temp. Brougham, 333). If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irreparable mischief, where the complainant's right is not doubtful, without wait- ing for the result of a trial. But where the thing sought to be re- strained is not in itself noxious, but only something which may ac- cording to circumstances prove to be so, the court will refuse to in- terfere until the matter has been tried at law by an action; though in particular cases the court may direct an issue, for its own satis- faction, where an action could not be brought in such a form as to meet the question." And in the Earl of Ripon v. Hobart, 3 Myl. & K., 169, to which reference is here made by Chancellor Walworth, Lord Brougham observes: "If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irreparable mis chief without waiting for the re- sult of a trial; and will, accord- ing to the circumstances, direct an issue or allow an action, and, if need be, expedite the proceedings, the injunction being in the mean- time continued. But, where the thing sought to be restrained is not unavoidably and in itself nox- ious, but only something which may according to circumstances prove so, the court will refuse to interfere, until the matter has been tried at law, generally by an action, though in particular cases an issue may be directed for the satisfaction of the court, where an action could not be framed so as to meet the question. The distinc- tion between the two kinds of erec- tion or operation is obvious, and the soundness of that discretion seems undeniable, which would be very slow to interfere, where the thing to be stopped, while it is highly beneficial to one party, may very possibly be prejudicial to none. The great fitness of paus- ing much before we interrupt men in those modes of enjoying or improving their property, which are prima facie harmless or even praiseworthy, is equally manifest. And it is always to be borne in mind that the jurisdiction of this court over nuisance by injunction at all, is of recent growth, has not till very lately been much exer- cised, and has at various times found great reluctance on the part of the learned judges to use it, even in cases where the thing or the act complained of was admit- ted to be directly and immedi- ately hurtful to the complainant. CHAP. XIII.] AGAIXST NUISANCE. 707 Thus, the erection of a wharf,--'^ a railroad bridge,^^ a planing mil],27 a stable,-^ a cotton gin,2» a blacksmith shop,^^ a beer garden with boAvling alleys and dance hall,^^ a toll-gate,^^ a livery stable,^^ or a turpentine distillery ,3^ will not be enjoined when the injury is only a possible and contingent one. So, too, the relief will be withheld where the bene- fit to the public to be derived from the existence of the thing complained of outweighs the private inconvenience, since the injury to one family or person will not be allowed to counter-balance the public benefit.^^ And if, in addition to the danger being remote, the right is also doubtful, the injunction will not be granted.^'' So the relief will not be allowed in the absence of clear and conclusive proof that the All that has been said in the cases where this unwillingness has ap- peared, may be referred to in sup- port of the proposition which I have stated; as in the Attorney- General t\ 'Nichol, 16 Ves., 338; Attorney-General v. Cleaver, 18 Ves., 211; and an anonymous case before Lord Thurlow, in 1 Ves. Jr., 140, and others. It is also very material to observe, what is indeed strong authority of a negative kind, that no instance can be pro- duced of the interposition by in- junction in the case of what we have been regarding as eventual or contingent nuisance." -5 Laughlin v. President, 6 Ind., 223. 26 Mohawk Bridge Co. v. Utica Co., 6 Paige, 554. 2T Rhodes V. Dunbar, 57 Pa. St., 274. 2s Rounsaville v. Kohlheim, 68 Ga., 668; Shivery v. Streeper, 24 Fla., 103, 3 So., 865. -'■> Rouse V. Martin, 75 Ala., 510. "o Bowen v. Mauzy, 117 Ind., 258, 19 N. E., 526; Chambers i\ Cra- mer, 49 West Va., 395, 38 S. E., 691, 54 L. R. A., 545. 31 Pfingst r. Senn, 94 Ky., 556, 23 S. W., 358. :*2 Maysville & Mt. S. T. R. Co. v. Ratliff 85 Ky., 244. •■!•; Kirkman v. Handy, 11 Humph., 406. ■^■i Simpson v. Justice, 8 Ired. Eq., 115. -5 Attorney-General v. Perkins, 2 Dev. Eq., 38; Same v. Lea's Heirs. 3 Ired. Eq., 302; Wilder r. Strick- land, 2 Jones Eq., 386; Daughtry V. Warren, 85 N. C, 136; Hewett V. Western Union T. Co., 4 Mackey, 424. See also Dorsey r. Allen, 85 N. C, 358. And an injunction has been refused which was sought to restrain the lighting of the streets of a city with naphtha. Anderson V. Mayor, 69 Ga., 472. as Mayor v. Curtiss, Clarke Ch., 336. 708 iNJCNCTioxs. [chap. xiri. injury is permanent and irreparable and where the acts com- plained of are onh' temporary.^" It is also held that complain- ant must show that the act from which he seeks relief is illegal, before equity will interfere.^^ § 743. The same. Where an injunction is asked to restrain the construction of works of such a nature that it is impossi- ble for the court to know, until they are completed and in operation, whether they will or will not constitute a nuisance, the writ will be refused in the first instance."^ Xor in such a case will the motion for an interlocutory injunction be allowed to stand over until the work is so far executed that its character may be determined. ^'^ It is proper, however, under such circumstances to dismiss the bill without preju- dice to any further application which plaintiffs may think themselves entitled to make.^^ §744. Injunction refused when facts uncertain; when bill dismissed without prejudice. In eases of conflicting evidence as to the fact of a nuisance it is proper to refuse an injunc- tion in limine, imtil the question of nuisance can be finally de- termined by a verdict. For example, when it is sought to enjoin a mill owner from permitting the ebb and flow of water below his mill caused by the stopping and opening of his gates, the bill alleging that malaria is thereby caused and sick- ness in the family of complainant, and averring that the iealth of the neighborhood has become so impaired that -visitors no longer come to certain mineral springs upon complainant's premises, if the facts are conflicting and un- certain upon the affidavits introduced, it is proper to refuse an injunction until after verdict, especially when the griev- ance has continued for a number of years.*- And a defend- 37 Nelson r. Mulligan, 151 111., Rouse t: Martin, 75 Ala., 510. See 462, 38 N. E., 239. also Adams v. Michael, 38 Md., 123. 3« Bruce r. President, 19 Barb., *" Haines r. Taylor, 2 Ph., 209. 371. *i Adams r. Michael. 38 Md., 123. 30 Haines i. Taylor, 2 Ph., 209; <-' Nelms v. Clark. 44 Ga., 617. CHAP. XIII.] AGAINST NUISANCE. 709 ant will not be enjoined from sowing upon his own land, adjoining that of plaintiff, a peculiar species of grass seed alleged to be injurious and likely to render plaintiff's land useless, when the testimony is conflicting as to the nature and eft'ect of such seed, leaving the court in doubt as to the fact of nuisance.**'^ So the relief will be refused when sought by a city to restrain the enlargement of a building alleged to be in violation of a building ordinance of the city, when such construction is not a nuisance in fact and will not oc- casion irreparable injur}'. "*^ And while the bill should be dismissed if the evidence is conflicting and the nuisance un- certain, yet if the acts complained of may subsequently develop into a nuisance, the dismissal should be without prejudice.*^ § 745. Remedy at law a bar to injunction. Notwithstand- ing the well established jurisdiction of equity to enjoin the erection of nuisances, and the fact that in some cases the relief is even extended to the abatement of the nuisance, the existence of a legal remedy will be held sufficient ground for withholding an injunction. Thus, when a full and com- plete legal remedy is provided by a statute authorizing courts of law to give judgment of abatement in actions for damages incurred by private nuisances, a court of equity may refuse to entertain an action to enjoin and abate such a nuisance.'*^ So when a summary remedy is pro- vided by statute for the abatement by the municipal au- thorities of cities of all nuisances, public and private, a court of equity may properly refuse to interfere by injunction, when no obstacle is shown in the way of proceedings at law.*^ And a drinking saloon doing business 43 McCutchen r. Blanton. 59 158 111., 21, 42 N. E., 77. Miss., 116. 46 Remington v. Foster, 42 Wis. 44 Mayor v. Smyth, 64 N. H., 380, 608. 10 Atl., 700. 4- Powell r. Foster, 50 Ga., 790, 45 Robb r. Village of La Grange, 710 iNJUxcTioxs. [chap. xiir. in a city in violation of law, although a nuisance, will not be enjoined when ample remedy is provided by law for its abatement.^^ And it may be said generally, that the aid of an injunction will not be extended for the prevention of a nuisance when it does not satisfactorily appear that the person aggrieved is without adequate remedy at law.'*^ So equity will not enjoin an encroachment by defendant upon premises claimed by plaintiff, when the title to the premises upon which the alleged nuisance is to be erected is in dis- pute and is claimed by both parties, and when adequate relief may be afforded by an action of ejectment.^*^ It is, however, to be observed that the fact that the commission of the threatened act, which it is sought to enjoin as a nui- sance, may be punished criminally as such will not prevent the exercise of the restraining power of equity .^^ § 746, Difficulty of abating nuisance. A court of equity will not be deterred from the exercise of its jurisdic- tion in restraint of nuisance because of the difficulty or expense attending the removal by defendants of the nuisance in question. It is proper, however, where the difficulties of such removal are very great, on granting the injunction to suspend its operation for a given time to enable defendants to make the necessary arrange- ments for removing the nuisance.^- Or the court may refuse 1h(' injunction altogether and enter a decree simply finding and declaring the plaintiff' 's rights, with leave to the plain- ts state V. Crawford, 28 Kan., N. E., 514; People's Gas Co. r. 726. Tyner, 131 Ind., 277, 31 N. E., 59, ■*■> Parker v. Winnipiseogee L. C. 16 L. R. A., 443, 31 Am. St. Rep., & W. Co., 2 Black, 54.'j. 433; Columbian Athletic Club v. 50 Morris C. & B. Co. v. Fagin, 7 State, 143 Ind., 98, 40 N. E., 914, C. E. Green, 430. 28 L. R. A., 728, 52 Am. St. Rep., ■-'i People V. St. Louis, 5 Gilm., 407. 351 ; Attorney-General v. Hunter, •>- Attorney-General v. Colony 1 Dev. Eq., 12; Gilbert v. Morris C. Hatch Lunatic Asylum, L. R. 4 & B. Co., 4 Halst. Ch., 495; Cran- Ch., 146. ford V. Tyrrell, 128 N. Y., 341, 28 CHAP. XIII.] AGAINST NUISAKCE. 711 tiff to apply for an injunction if the nuisance shall not be abated by the defendant within a reasonable time named by the court.^^ § 747. Prohibition of business by municipal authorities. While equity will not interfere by injunction with the legitimate exercise of the powers conferred by law upon municipal authorities for tlie abatement of nuisances, it may interpose its aid to prevent such authorities from pro- hibiting a citizen from conducting a legitimate business which is not necessarily a nuisance, and which may be car- ded on in a city without injury or danger to the public health. And where, without notice to complainant who is engaged in the business of curing hides in a city, the mu- nicipal board of health absolutely prohibit him from carry- ing on his business, an injunction is proper to restrain the board from enforcing such prohibition while the business is not conducted as a nuisance.^^ Where, however, a board of municipal officers, such as the board of health of a city, are fully empowered by law to prohibit the exercise within the city of any oft'ensive or dangerous trade or employ- ment, or any nuisance, and the board, duly acting within the scope of their authority, have prohibited the exercise of an offensive trade, the city may then maintain a bill to enjoin the continuance of such trade. And upon such a bill the action of the board of health in determining that the trade in question is a nuisance may be taken as quasi- judicial, and not open to review in a court of equity.^^ § 748. Erection of wooden buildings ; conflict of author- ity. Although the jurisdiction of equity to prevent by injunction the erection or maintenance of nuisances is, as we have already seen, undoubted, the courts are neverthe- 53 Vestry of Islington v. Horn- ^^ Taunton v. Taylor, 116 Mass., sey Council, (1900) 1 Ch., 695. 254. 54 Weil V. Ricord, 9 C. E. Green, 169- 712 INJUNCTIONS. [chap. XIII. less inclined to limit its exercise to cases of nuisance per se, and not to extend the relief to enjoining structures which are merely prohibited by municipal regulation.^" And where a village ordinance prohibits the erection of wooden build- ings within certain specified limits, imposing a penalty for violation of the ordinance, and also provides that the pres- ident and trustees of the village shall cause any person violating the ordinance to be enjoined by a court of com- petent jurisdiction, an injunction will not be granted to prevent the erection of wooden buildings in violation of the ordinance.^''' And the provision in the ordinance direct- ing the officers to proceed by injunction in such case in no manner extends or enlarges the jurisdiction of the court, and the municipal authorities will be left to seek their rem- edy at law for a violation of the ordinance.^^ The reason- ing of the authorities which hold thus is that since a wooden building is not in itself a nuisance, the mere fact that the erection of such a building is prohibited by ordinance does not render it one; and that the remedy, if any, of the pub- lic authorities for a violation of the ordinance is by the enforcement of the penalties provided by it. A diff^erent conclusion, however, has been reached by other courts and it has accordingly been held that where the erection or removal of wooden buildings within certain limits is pro- hibited by municipal ordinance, the relocation of such a building contrary to the provisions of the ordinance and so near plaintiff's property as to increase his fire risk may be enjoined as a nuisance by a property owner who is thus specially damaged thereby.^-* And where it is provided by •'•*= President and Trustees v. See also Mayor ;;. Smyth, 64 N. H., Moore, 34 Wis., 450; Mayor v. 380. 10 Atl., 700. Thome, 7 Paige, 261; Village of •'^^« President and Trustees v. St. .Johns V. McFarlan, 33 Mich., 72. Moore, 34 Wis., 450. r-T President and Trustees v. •'■" Kaufman v. Stein, 138 Ind., Moore, 34 Wis., 450; Village of St. 49, 37 N. E., 333, 46 Am. St. Rep., .Johns V. Mcl'^rlan, 33 Mich., 72. 368. To the same effect see dicta CHAP. Xlll.] AGAINST NUISANCE. 713 ordinance that no wooden building shall be moved within certain limits without the consent of a majority of the front foot ownership in the block, the removal of such a building without the required frontage consent will be enjoined at the suit of an adjoining or neighboring property owner who suffers special damage.*'^ But when a body of commissioners, appointed by the executive authority of the state, and hav- ing no authority to exercise the power of local legislation, attempt by an ordinance to abate as a nuisance that which is not such at common law, their action may be enjoined.^i § 749. Abatement and damages in statutory action. When it is provided by statute that in an action to recover damages for a nuisance the nuisance may be enjoined or abated as well as damages be recovered, the abatement and injunction do not follow the recovery of damages as a matter of course, but their allowance rests in the sound judicial discretion of the court. And where, in an action under such statute to recover damages for a nuisance re- sulting to plaintiff's land from the overflowing of defend- ant's mill-dam, the issues are submitted to a jury, to warrant an injunction there should be a specific finding as to how much of defendant's dam should be abated and enjoined in order to relieve plaintiff's land from unlawful flowage.'^- § 750. Construction of ditch. In conformity with the general doctrine that equity will not enjoin where there is an adequate remedy at law, the owners of real estate are not entitled to an injunction against the construction of a ditch by an adjacent owner upon the ground that it will destroy a ditch upon plaintiff's premises, when a method is provided by statute for the assessment of benefits and damages in such cases.**'^ in First National Bank r. Sarlls, '^i Schuster r. Metropolitan Board 129 Ind., 201, 28 N. E., 434, 13 L. R. of Health, 49 Barb., 450. A., 481, 28 Am. St. Rep., 185. >■■- Pinch v. Green, 16 Minn., 355. 60 Griswold v. Brega, 160 111., 490, «:i pioughe v. Beyer, 38 Ind., 113. 43 N. E., 864, 52 Am. St. Rep., 350. 714 INJUNCTIONS. [chap. XIII. § 751. Throwing" surface water upon adjacent lands. AVhile the owner of real estate may properly use and cultivate it in accordance with good husbandry, even if in so doing- he interferes with the natural flow of surface water passing over his own land, and increases or dimin- ishes the amount which would otherwise reach the land of an adjoining proprietor, yet a land owner has no right by the construction of ditches and embankments, or other artificial structures of a like character, to collect the sur- face waters from his own lands or those of other persons, and to precipitate them upon the lands of an adjacent owner, to the great injury of the latter; and the remedy by injunction is well established for such grievance.'^'* And the fact that plaintiff, in such case, does not upon the hearing prove the injury to the full extent charged in his bill will not prevent him from obtaining relief.^-'"' So relief may be granted against the diversion of waters from their natural channels by artificial means at the suit of the public authori- ties, such as commissioners of highways or drainage com- missioners having jurisdiction over the subject-matter affected by the nuisance.'^*^ And while a property owner is ■compelled to submit to the burden resulting from the ordi- nary and natural flow of surface w^aters upon and over his land through natural channels and watercourses, yet where the municipal authorities are proceeding by artificial means to divert unusual quantities of surface water from surround- ing lands and to discharge it by such artificial means upon the lands of complainant in a greatl}^ increased volume and in quantities greatly in excess of the natural flow, to the de- sti-iictioii or serious injury of such land, their action may «■' Hicks r. Silliraan, 93 111., 255; <5<' Dayton r. Drainage Commis- Graham v. Keene, 143 111., 425, 32 sioners, 128 111., 271, 21 N. E., 198; N. E., 180; Peters v. Lewis, 28 Davis v. Commissioners of High- Wash., 366, 68 Pac, 869. ways, 143 111., 9, 33 N. E., 58. '■'■• Hicks r. Silliman. 93 111., 255. CHAP. XIII.] AGAIXST NUISANCE. 715 be restrained by injunction.*'^ And the fact that plaintiff's land is subjected to the burden of the drainage of other lands will not justify such additional imposition.*'^ So a rail- way company may be enjoined from maintaining a ditch along its road-bed in such manner as to turn the water from its natural course, causing it to overflow plaintiff's land to his serious injury.*'*' And where a railway company has removed an open trestle forming part of its right of way over a stream and in its place has built a solid stone culvert containing an opening so small as to be entirely inadequate to permit the passage of the water at times of heavy rains, thus seriously injuring plaintiff's lands by the overflow, relief by injunction will be allowed.'''*' And when the nuisance con- sists in the obstruction of the natural flow of a stream, where- by plaintiff's lands are inundated, an injunction may be al- lowed although it is not shown that defendant is insolvent."^ And where two adjacent tracts of land are so situated that the upper tract has a natural easement or servitude in the lower for the discharge of all surface water, the owner of the servient estate ma}' be restrained from the erection of an embankment upon his land whereby the water is thrown back upon the upper tract and its natural flow obstructed."- And where defendant brings water upon his land by arti- ficial means, a portion of which percolates through the soil to plaintiff's land, rendering it useless, relief by injunction G' Soule V. City of Passaic, 47 N. cs Soule v. City of Passaic, 47 N. J. Eq., 28, 20 Atl., 346; Miller v. J. Eq., 28, 20 Atl., 346. Mayor of Morristown, 47 N. J. Eq., c-' G. H. & S. A. R. Co. v. Tait, 63 62, 20 Atl., 61; Whipple v. Village Tex., 223. of Fair Haven, 63 Vt., 221, 21 Atl., to Lake Erie & W. R. Co. v. 533; Patoka Township v. Hopkins, Young, 135 Ind., 426, 35 N. E., 177, 131 Ind., 142, 38 N. E., 96, 31 Am. 41 Am. St. Rep., 430. St. Rep., 417; Young r. Commis- 7i Moore v. Chicago, B. & Q. R. sioners of Highways, 134 111., 569, Co., 75 Iowa, 263, 39 N. W., 390. 25 N. E., 689; Jewett i: Sweet, 178 ^2 Nininger v. Norwood, 72 Ala.. 111., 96, 52 N. E., 962. 277. But see Crabtree v. Baker, 75 Ala., 91. 716 INJUNCTIONS. [chap. XIII. may be allowed."^ But the erection by defendant of an embankment upon his own land as a protection against the overflow of a non-navigable river dividing his land from that of plaintiff, which may result in throwing such overflow upon plaintitt"'s land, will not be restrained upon general averments of irreparable injury, and when sufficient remedy exists by an action at law for dam^ges.'^ And to entitle the plaintifl:' to relief against the diversion of waters, a strong case of irreparable injury must be presented, and the relief will be denied where the evidence as to the injury is con- flicting and it is not certain that any damage will result to the plaintilf from the alleged nuisance complained of."^ §752. Lawful business not enjoined; criminal liability no bar to relief. Where the injury complained of is such only as is incident to a lawful business conducted in the ordinary way, equity will not interfere. Thus, an injunction has been refused against the injury and annoyance caused by the smoke from semi-bituminous coal used in the production of iron, it being used in the usual course of such business, and it appearing that greater injury would result from granting than from withholding the relief, and where such injury as might result could be adequately compensated in damages.'^" And where defendant disclaims the intention of continuing the nuisance, and is using due diligence for its removal, the injunction will be refused.'^^ But the fact that the act threatened might be punished criminally as a nuisance will not prevent the exercise of the restraining power of equity."'^ And the continued displaying of ban- ners in front of plaintifl^ 's place of business, with inscrip- -••! Parker r. Larsen, 86 Cal., 236; -''Richard's Appeal, 57 Pa. St., 24 Pac. 989, 21 Am. St. Rep., 30. 105. - 1 Blaine r. Brady, 64 Md., 373, • ■ King r. Morris, 3 C. E. Green, 1 Atl., 609. 397. "Hotz V. Hoyt, 135 111., 388, 25 unpeople r. St. Louis, 5 Gilm., N. E., 753. CHAP. XIII. J AGAINST NUISANCE, 717 tions warning workmen not to enter his empioy, has been enjoined as a nuisance.'^^ § 753. Right to lateral support protected. The right to lateral support is regarded as an incident to the ownership of land, and its infringement has been considered as a nui- sance which equity may enjoin. Thus, the removal and ex- cavation of earth upon adjacent premises in such manner as to endanger the stability of complainant's soil and fences, by removing their lateral support, will be enjoined.**" § 754. Burning wooded lands. Equity will not interfere by injunction to prevent land owners from burning off wooded lands which are unenclosed, at undue seasons of the year, and in violation of the penal laws of the state, when plaintiff claims no title to, or prescriptive right in the prem- ises, the only right asserted by him being a common of pas- ture for his cattle, which have been accustomed to range in the woods.^i § 755. Exclusive right of slaughtering animals. Where the legislature of a state, in the exercise of its police power, has designated certain places for the slaughtering of animals, prohibiting their slaughter at other places, 351; Attorney-General v. Hunter, 1 In this case the opinion of the Dev. Eq., 12; Cranford v. Tyrrell, court, although somewhat obiter, 128 N. Y., 341, 28 N. E., 514; Gilbert would seem to imply that the doc- V. Morris C. & B. Co., 4 Halst. Ch., trine is to be confined strictly to 495; People's Gas Co. v. Tyner, 131 those cases where the owner of the Ind., 277, 31 N. E., 59, 16 L. R. A., land has not, by building or other- 443, 31 Am. St. Rep., 433; Colum- wise, increased the lateral pressure bian Athletic Club v. State, 143 upon the adjoining soil; since, Ind., 98, 40 N. E., 914, 28 L. R. A., when the owner of the land has er- 728, 52 Am. St. Rep., 407. ected buildings upon the edge of Ta Sherry r. Perkins, 147 Mass., his soil, he himself is regarded as 212, 17 N. E., 307. in fault. 80 Trowbridge v. True, 52 Conn., «i Harrell v. Hannum, 56 Ga., 190; Farrand (;. Marshall, 19 Barb., 508. 380; Same v. Same, 21 Barb., 409. 718 INJUNCTIONS. [chap. XIII. and lias chartered an incorporated company for carry- ing into effect such legislation, conferring upon the company thus incorporated the exclusive right to maintain a slaughter house within a particular city, the state may, upon a bill filed by its attorney-general, enjoin persons from interfering with the execution of such law, and from doing any of the acts prohibited thereby .^- §756. Effect of acquiescence and delay; effect of release; hindrance by plaintiff. Long continued acquiescence in the erection of works which it is afterwards sought to enjoin as a nuisance may constitute a bar to relief.^^ And it may be as- serted as a rule that long delay upon the part of plaintiff' who seeks to enjoin a nuisance will afford sufficient reason for refusing him relief in equity.^^ The rule is extended even further, and it is held that one party may so encourage another in the erection of what he afterward complains of as a nui- sance, as not only to deprive the aggrieved party of the right to equitable relief,^^ but to give the adverse party a right to invoke the aid of equitj^ to restrain proceed- ings at law for the recovery of damages resulting from the alleged nuisance.*^^"' So when plaintiff", in compromise of an action to recover damages from an alleged nuisance, has released defendant from all right of action on account there- of, he is thereby estopped from enjoining the maintenance of the alleged nuisance.^" And where the defendant has made proper efforts to abate the nuisance complained of but has been thwarted in his attempts by the acts of the plaintiff', relief against the nuisance will be denied."^^ "- State r. Fagan, 22 La. An., '^« Williams v. Jersey, 1 Cr. &. 545. Ph., 91. ^^i Wood r. Sutcliffe, 2 Sim. N. S.. '^^ Kennerty r. Etiwan P. Co., 17 163. S. C, 411. "'Wicks /•. Hunt, John., 372. ><« Richardson r. City of Eureka,. «•'•. Huntington & K. L. D. Co. r. 110 Cal., 441, 42 Pac, 965. P. P. Mfg. Co., 40 West Va., 711, 21 S. E., 1037. CHAP. XIII.] AGAINST NUISANCE. 719' § 757. Joinder of parties. Upon the question of the joinder of parties in proceedings to restrain a private nuisance, it is held that where the grievance is common to several different property owners, they may unite in one action for an in- junction.'^'' And in such case it is not necessary that the grievance complained of shall affect all of the plaintiffs pre- cisely at the same instant and in the same degree, if they are affected in the same general period of time and in a similar way, so that the same relief may be had by all in a single suit.^° It is to be observed, however, that the joinder in such case is permissive merely, the various property owners being proper but not necessary parties. One owner, there- fore, can not sue upon behalf of all others similarly situated and the latter can not be bound by the result of another's separate action.''^ And a court of equity wnll not upon a bill by one co-tenant enjoin his co-tenants from keeping a saloon upon the common property, when no special injury is shown to be sustained by plaintiff which is not suffered by the pub- lic, and when the bill fails to allege any immediate and threatened injury.^- And' where it is sought to enjoin a nui- sance to a public highway, a property owner who abuts upon the highway at such a distance from the erection or obstruc- tion complained of as to suffer no injury different in kind from that sustained by the public generally, is not a proper 80 Foot r. Bronson, 4 Lans., 47; 416; Town of Sullivan v. Phillips. Gillespie v. Forrest, 18 Hun, 110; 110 Ind., 320, 11 N. E., 300; Hart Snyder v. Cabell, 29 West Va., 48, v. Buekner, 5 C. C. A., 1, 54 Fed., 1 S. B., 241; Lonsdale v. City of 925; Pettibone v. Hamilton, 40 Woonsocket, 21 R. I., 498, 44 Atl., Wis., 402. 929; Rowbotham v. Jones, 47 N. J. 9o Rowbothana r. Jones, 47 N. J. Eq., 337, 20 Atl., 731, 19 L. R. A., Eq., 337, 20 Atl., 731, 19 L. R. A.. 663; Attorney-General v. Mayor of 663. Paterson, 58 N. J. Eq., 1, 42 Atl., si Linden Land Co. v. M. E. R. 749; First National Bank v. Sarlls, & L. Co., 107 Wis., 493, 83 N. W.,. 129 Ind., 201, 28 N. E., 434, 13 L. 851. R. A., 481, 28 Am. St. Rep., 185. 02 Oglesby Coal Co. v. Pasco, 79- See also Reid r. Gifford, Hopk. Ch., 111., 164. 720 INJUNCTIONS. [chap. XIII. party complainaut to maintain a bill to enjoin such uui- sance.^^ §758. When injunction perpetuated; when made manda- tory. At the final hearing upon bill and answer, if it is apparent from the pleadings that defendants are about to do some act charged in the bill, which if permitted would con- stitute a nuisance injurious to complainants, the preliminary injunction should be made perpetual.'**^ So when the nui- sance consists in the erection of a building upon ground adjacent to premises occupied by plaintiff, upon and over which he has an easement which has been established at law, lie is entitled upon final hearing to a mandatory in- junction to remove and abate so much of the building as prevents the enjoyment of his rights.'^^ 'J3 City of Chicago v. Union Building Association, 102 111., 379; Parker l\ Catholic Bishop, 146 111., 158, 34 N. E., 473; Guttery i\ Glenn, 201 111. 275, 66 N. E., 305; McGee's Appeal, 114 Pa. St., 470. 8 Atl., 237; Kinnear Mfg. Co. r. Beatty, 65 Ohio St., 264, 62 N. E., 341; Shaubut V. St Paul & S. C. R. Co., 21 Minn., 502; Gundlach v. Hamm, 62 Minn., 42, 64 N. W., 50. And see, ante, § 594 and, post, § 1301. 9-1 Attorney-General v. Steward, 6 C. E. Green, 340. 95 Stanford v. Lyon, 37 N. J. Eq. 94. See S. C, 7 C. E. Green, 33. where a preliminary injunction was refused because plaintiff had not established his right at law. CHAP. X11I.| AGAINST NUISANCE. 721 II. Public Nuisances. § 759. Purpresture defined. 760. Piers; wharves; embankments of canal; public lands; manda- tory injunction. 761. Remedy at law. 762. Right of private person to enjoin public nuisance. 763. The doctrine illustrated. 763a. Further illustrations. 764. Distinction between information by attorney-general and bill by citizen. 765. Floating elevator in harbor. 766. Obstruction of navigable river by dam. 767. Effect of legislative sanction. 768. Obstruction of water in city; obstruction of square; prize-fights. 769. Violation of private right necessary. 770. Navigable creek; pendency of criminal proceedings. 771. Adverse user no bar to relief. 771a. "Wasting of natural gas. § 759. Purpresture defined. One of the earliest recognized forms of public nuisance with which equity has interfered is that of purpresture. A purpresture was formerly held to be a close or enclosure, or in other Avords an encroachment whereby one person makes several to himself that which ought to be common to the public. ^ The later acceptance of the term, however, is that of an encroachment upon the rights of the sovereign, either by trespassing on his soil, or upon ease- ments, such as highways, bridges, and public rivers.- And a still narrower signification has been given to the term by limiting it to an encroachment upon the soil of the sea- shore, or other tidal waters belonging to the sovereign, between high and low water mark.-^ The jurisdiction of equity in cases of purpresture, as well as of public nuisances generally, rests in the necessity of preventing irreparable 12 Coke Inst., 38, 272. Paige, 554; Attorney-General i\ - New Orleans v. United States, Cohoes Company, 6 Paige, 133. 10 Pet., 662; Mohawk v. Utica, G :• Attorney-General r. Chamber- lane, 4 Kay & J., 292. 49 722 INJUNCTIONS. [chap. XIII. mischief and avoiding vexatious litigation. The equitable remedy is more efficacious than the remedy at law, since it has the effect, not only of abating nuisances already exist- ing, but of restraining those which are threatened or in progress.-* But a public nuisance, such as will justify relief by injunction, can not arise from an act which is expressly authorized by statute.^ § 760. Piers ; wharves ; embankments of canal ; public lands ; mandatory injunction. The unauthorized erection of a pier in a public harbor is a purpresture which will be restrained by injunction at the suit of the attorney-general.*' And such an erection will be regarded as a nuisance per se, and will be enjoined without evidence to show that it would, if erected, be a nuisance in fact.'^ So the unauthorized erection of a pier in a lake, the title to the submerged lands being in the state in trust for the public, may be enjoined as a purpres- ture in an information in equity by the attorney-general, although the obstruction does not in fact amount to a nui- sance.^ So the obstruction of a navigable river, by a wharf owner driving piles into the bed of the river and extending his wharf so as to occupy a space of three feet, out of a width of sixty feet available for navigation may be enjoined.^ But where it clearly appears that the erection of a pier or wharf in tidal waters, and upon soil 4 2 Story's Eq., § 924; Attorney- city from obstructing plaintiff's General v. Johnson, 2 Wils. Ch., 87; wharf and cutting him off from ac- Township of Hutchinson v. Filk, cess to the navigable waters upon 44 Minn., 536, 47 N. W., 255. which his wharf is situated, see •'• Hewett V. Western Union T. Crocker v. City of New York, 15 Co., 4 Mackey, 424. Fed., 405. 6 People /;. Vanderbilt, 28 N. Y. « Revell i'. The People, 177 111.,. 396, affirming S. C, 38 Barb., 282; 468, 52 N. E., 1052, 43 L. R. A., Davis r. Mayor, 4 Kern., 526; Peo- 790, 69 Am. St. Rep., 257; Gordon pie r. N. Y. & S. I. F. Co., 68 N. Y., r. Winston, 181 111., 338, 54 N. E., 71, modifying and affirming S. C, 1095. 7 Hun, 105. •' Attorney-General v. Terry, L.. R. 7 People r. Vanderbilt. 38 Barb., 9 Ch., 423. 282. As to the right to enjoin a CHAP. XIII.] AGAINST NUISANCE, 723 thereunder, belonging to the state, would not constitute a public nuisance, and Avould not prove injurious to the harbor or to the people of the state, an injunction should not be allowed.^*^ Where, however, the structure pro- posed would hinder navigation, it will not avail defend- ant to urge that the benefit to the public counterbalances the inconvenience.^ 1 But to warrant an injunction against an alleged purpresture or public nuisance it must clearly appear that it is such in fact ; and if it be doubtful whether there is a purpresture the relief will be withheld.^- It is held that in cases of doubt the question as to the existence of the nuisance should be determined by a jury before granting the injunction.^ ^ And where that issue has been settled at law by the acquittal of the defendant by a jury in an indictment for the maintenance of a public nuisance, relief will be denied.^ ^ But any unauthorized appropria- tion of public property to private uses, amounting to a pur- presture or public nuisance, is within the jurisdiction of equity to enjoin. And the cutting through the embank- ments of a public canal to draw off water for defendant's mills comes within the rule and will be restrained.!^ So a riparian owner upon a navigable river, owning to the line of high water mark, may be enjoined from erecting a wharf or pier in front of his premises and between high, and low water mark, at the suit of a municipal corpora- tion which is vested with the exclusive right to construct 10 People V. Davidson, 30 Cal., i3 Attorney-General r. Cohoes, 6 379. And see Engs v. Peckham, Paige, 133; Mohawk v. Utica, 6 11 R. I., 210. But see, contra, Paige, 554; Attorney-General v. Revell V. The People, 177 111., 468, Cleaver, 18 Ves., 217. 52 N. E., 1052, 43 L. R. A., 790, i-* Commonwealth r. Croushore, 69 Am. St. Rep., 257. 145 Pa. St., 157, 22 Atl., 807. And 11 Rex V. Ward, 4 A. & E., 386. see, ante, § 740. 12 Attorney-General v. Delaware i"' Attorney-General v. Cohoes, 6 & B. R. Co., 12 C. E. Green, 1. Paige, 133. See also Harlan & H. Co. r. Pas- chall, 5 Del. Ch., 435. 724 INJUNCTIONS. [chap. xiir. wharves within the corporate limits."^ Aud the unauthor- ized enclosure by private citizens of public lands of the state constitutes such a purpresture as may be enjoined at the suit of the attorney-general. And in such case it is proper to grant a mandatory injunction to compel the removal of the illegal obstruction.''^ § 761. Remedy at law. Though the jurisdiction of equity in restraint of public nuisances is well established/* it will not be exercised where the object sought can be as well at- tained in the ordinary tribunals/*^ unless upon the application of one who suffers a personal injury aside from the injury to the public, in which case an injunction may be allowed, even though there is a remedy at law by abatement of the nuis- ance and indictment of the offender.-*^ And equity will not entertain a bill filed by the attorney-general to abate a public nuisance where the state has created local boards and has delegated to them ample power to redress the grievances complained of.-' § 762. Right of private person to enjoin public nuisance. No principle of the law of injunctions is more clearly established than that private persons, seeking the aid of equity to restrain a public nuisance, must show some special injury peculiar to themselves, aside from and inde- pendent of the general injury to the public. And in the absence of such special and peculiar injury sustained by a 16 Ravenswood r. Flemings, 22 Co. r. Prudden, 5 C. E. Green, 530; West Va., 52. Attorney-General v. Brown, 9 C. Instate V. Goodnight, 70 Tex., E. Green, 89; Inhabitants of Rari- 682. See also United States /;. tan v. P. R. R. Co., 49 N. J. Eq., Brighton Ranche Co., 25 Fed., 465; 11, 24 Atl., 127. S. C, 26 Fed., 218; United States -;'> Ewell r. Greenwood, 26- Iowa. V. Cleveland & C. C. Co., 33 Fed., 377. But the injury must be great 323. and the necessity pressing. Morris Instate V. Mayor, 5 Port., 279; & E. R. Co. v. Prudden, 5 C. R Water Commissioners r. Hudson, 2 Green. 530. Beas., 420. -i People r. Equity Gas Light 1" Water Commissioners r. Hud- Co., 141 N. Y., 232. 36 N. E., 194. son, 2 Beas., 420; Morris & E. R. CHAP. Xlll.] AGAINST NL'lSAXCl-:. 725 private citizen he will be denied an injunction, leaving the public injury to be redressed upon information or other suitable proceeding by the attorney-general in behalf of the public.-- Even in cases of unquestioned nuisance, if the ^^ Bigelow V. Hartford Bridge Springer v. Walters, 139 111., 419, Co., 14 Conn., 565; O'Brien r. Nor- 28 N. E., 761; Pittsburg, F. W. & wich & W. R. Co., 17 Conn., 372; C. R. Co. v. Cheevers, 149 111., 430, Frink v. Lawrence, 20 Conn., 117; 37 N. E., 49, 24 L. R. A., 156; Clii- Doolittle V. Supervisors, 18 N. Y., cago Gen. Ry. Co. v. C, B. & Q. 160; Corning v. Lowerre, 6 Johns. R. Co., 181 111., 605, 54 N. E., 1026; Ch., 439; Adler v. Met. Bl. R. Co., Guttery v. Glenn, 201 111., 275, 6(> 138 N. Y., 173, 33 N. E., 935; Allen N. E., 305; Schall v. Nusbaum, 56 V. Board, 2 Beas., 68; Illinois Com- Md., 512; Coast Line R. Co. v. Co- pany v. St. Louis, 2 Dill., 70; hen, 50 Ga., 451; Redway v. Moore, Hinchman i: Paterson H. R. Co., 2 3 Idaho, 312, 29 Pac, 104; Ruffner C. E. Green, 75; Van Home v. v. Phelps, 65 Ark., 410, 46 S. W., Newark P. R. Co., 48 N. J. Eq., 728; Hill v. Pierson, 45 Neb., 503, 332, 21 Atl., 1034; Perkins v. M. & 63 N. W., 835; Esson v. Wattier, 25 C. T. Co., 48 N. J. Eq., 499, 22 Atl., Ore., 7, 34 Pac, 756; Rhymer v. 180; Morris & Essex R. Co. v. Fretz, 206 Pa. St., 230, 55 Atl., 959; Newark P. R. Co., 51 N. J. Eq., Cherry v. City of Rock Hill, 48 S. 379, 29 Atl., 184; Mechling v. Kit- C, 553, 26 S. E., 798; Manson v. tanning Bridge Co., 1 Grant's Cases, S. B. R. Co., 64 S. C, 120, 41 S. C, 416; Beveridge v. Lacey, 3 Rand., 832. And in this respect a railroad 63; Dawson v. St. Paul F. & M. company, although a quasi-public Ins. Co., 15 Minn., 136; Gundlach corporation performing public serv- V. Hamm, 62 Minn., 42, 64 N. W., ices stands upon the same footing 50; "Walker v. Shepardson, 2 "Wis., as a private individual. Morris &" 384; Barnes v. Racine, 4 "Wis., 454; Essex R. Co. v. Newark P. R. Co., Williams v. Smith, 22 AVis., 594; 51 N. J. Eq., 379, 29 Atl., 184. And Hay V. Weber, 79 Wis., 587, 48 N. in Higbee v. Camden & A. R. & T. W., 859, 24 Am. St. Rep., 737; Co., 4 C. E. Green, 276, it is said Kuehn v. City of Milwaukee, 83 that a bill by private persons is a Wis., 583, 53 N. W., 912, 18 L. R. proper remedy so far as the in- A., 553; Ewell v. Greenwood, 26 jury to complainants is a personal Iowa, 377; Prince v. McCoy, 40 or peculiar injury, and not one Iowa, 533; Green v. Lake, 54 Miss., shared by them in common with 540; Engs (•. Peckham, 11 R. I., the public, but no further. But see, 210; Bosworth ;;. Norman, 14 R. I., contra, Whitfield v. Rogers, 25 521; Palmer v. Logansport & R. Miss., 84. As to the right of a C. G. R. Co., 108 Ind., 137, 8 N. E., municipal board of health, under 905; Seager v. Kankakee Co., 102 the laws of New York, to enjoin a III., 669; City of Chicago v. Union public nuisance, see Gould r. City Building Association, 102 111., 379; of Rochester, 105 N. Y., 46, 12 N. 726 INJUNCTIONS. [chap. XIII,. party complaining shows no special injury to himself dif- ferent from the common injury to the public, he is not en- titled to an injunction. -2 In accordance with these principles, w^here it is made to appear after injunction granted that the injury suffered by complainant is sustained by him in common with every taxpayer, and the damage is therefore not special or peculiar, the injunction will be dissolved.^^ And where the injury is doubtful and the evidence conflict- ing the relief will generally be wnthheld.-^ And especially will the relief be denied where, in addition to the plaintiff's failure to show some special damage, it appears that his title is in doubt and is denied by the defendant.2*5 It is held, however, that the fact that proceedings have been or may be taken by the attorney-general in behalf of the people to restrain a public nuisance will not prevent an individual, who sustains a special injury, from obtaining the relief.-'^ But it w^ill not suffice that the person complaining merely shows a violation of his rights, but he must show such a violation as is or will be attached Avith serious damage.-^ E., 275. As to the right of a pri- vate citizen to enjoin the sale of intoxicating liquors as a nuisance, under the statutes of Iowa, see Lit- tleton V. Fritz, 65 Iowa, 488, 22 N. W., 641; Pontius v. Winebrenner, 65 Iowa, 591, 22 N. W., 646; Sher- merhorn r. Webber, 67 Iowa, 278, 25 N. W., 160; Martin v. Blattner, 68 Iowa, 286, 25 N. W., 131, 27 N. W., 244. 23 Hinchman v. Paterson H. R. Co., 2 C. E. Green, 75; Shed v. Hawthorne, 3 Neb., 179. ^+ Allen V. Board, 2 Beas., 68. a-' Earl of Ripon v. Hobart, 3 Myl. & K., 169; S. C, Coop. t. Brougham, 333; Hamilton r. New- York, 9 Paige, 171 ; Springer v. Walters, 139 111., 419, 28 N. E., 761. -I' Lownsdale r. Gray's H. B. Co., 117 Fed., 983. 27 Attorney-General v. Johnson, 2 Wils. Ch., 87; Attorney-General t\ Forbes, 2 Myl. & Cr., 123; Cook v. Mayor, L. R. 6 Eq., 177. -^ Bigelow r. Hartford Bridge Co., 14 Conn., 565. This was a bill in equity brought by the owner of buildings and land above a cause- way which had been swept away. to restrain defendant from rebuild- ing the causeway. It appearing that no special injury was threat- ened to complainant's right, and that the injury and inr-onvenience resulting to him from the erection of the causeway would be small and not capable of appreciation, it was held that the injunction ought C'lIAl'. XIII.] AGAINST NUISANCE. 727 § 7G3. The doctrine illustrated. As illustrating the general doctrine above stated, denying relief by injunction against public nuisances in behalf of private citizens who suffer no special or peculiar injury different from that which is iiv flicted upon the public by the grievance in question, it is held that a private citizen can not enjoin the closing up of public streets, when he shows no peculiar injury personal to himself as the result of the act proposed.-^ So a private citizen, own- ing a wharf adjacent to navigable waters, can not restrain defendants from committing a purpresture, such as filling up a dock adjoining plaintiff's wharf, when he has no private right or easement in the dock itself, the fee being in the state.^*' And a mining and transportation company will not be allowed to restrain the erection of a grain elevator upon to be refused. Storrs, J., says: "Of whatever character it is req- uisite that the injury complained of should be, in order to lay the foundation for this remedy, it is necessary that it should be a sub- stantial and not merely a technical or inconsequential injury. There must not only be a violation of the plaintiff's rights, but such a viola- tion as is or will be attended with actual and serious damage. Even although the injury may be such that an action at law would lie for damages, it does not follow that a court of equity would deem it proper to interpose by the sum- mary, peculiar and extraordinary remedy of injunction. Spencer v. London & Birmingham Railway Company, 8 Simons, 193. It is obviously not fit that the power of that court should be invoked, In this form, for every theoretical or speculative violation of one's rights. Such an exercise of it would not only be wide from the object of investing those courts with that power, but would render them en- gines of oppression and vexation, and bring them into merited odium. It is a power which is ex- traordinary in its character, and to be exercised generally only in cases of necessity, or where other rem- edies may be inadequate, and even then with great discretion and care- fulness. It is a salutary, and in- deed a necessary power when con- fined within those safe limits in which it has been exercised; but capable of being made an instru- ment of oppression, and therefore to be extended, if it all, with great circumspection. Earl of Ripon r. Hobart, 3 Mylne & Keene, 169." 29 Prince v. McCoy, 40 Iowa, 533. 30 Engs v. Peckham, 11 R. I., 210. And doubt is expressed by the court as to whether any person but the state can proceed by injunction against a purpresture. 728 INJUNCTIONS. [chap. XIII. a public wharf, to which the company shows no right or in- terest.^i So when it is sought to enjoin the hiying of a street railway upon a public street, the fact that one of the plaintiffs is a lot owner upon the street gives him no special right and subjects him to no special injury which entitles him to an injunction, a street railway not being a nuisance per se.^^ And in such a case it is not sufficient ground for awarding an injunction in behalf of such lot owner to al- lege generally that his lot will be injured by the proposed construction, but the facts should be shown from which the injury may be established.-"*^ Moreover the injury complained of must differ not merely in degree but in kind from that which is sustained by the public generally.^^ § 763 a. Further illustrations. As further illustrating the principle under discussion, relief has been denied where a private individual who was accustomed with many others to fish in the waters of a lake, sought to enjoin a city from destroying the fishing industry in the locality by dumping garbage into the lake •,^^ to enjoin the maintainance of a gambling house, relief being sought by a non-resident ;2*'' to enjoin the maintenance of a toll-gate in a public highway ;37 to enjoin the municipal authorities from changing a public highway in such a way as to make it more circuitous for the plaintiff ;^^ to enjoin the unauthorized granting of a ;ii Illinois Company r. St. Louis, Cheevers, 149 ill., 430, 37 N. E., 2 Dill., 70. 49, 24 L. R. A., 156; Kinnear Mfg. :'2 Coast Line R. Co. v. Cohen, 50 Co. v. Beatty, 65 Ohio St., 264, 62 N. Ga., 451; Van Home v. Newark P. E., 341. R. Co., 48 N. J. Eq., 332, 21 Atl., -'s Kuehn v. City of Milwaukee, 1034; Placke v. Union D. R. Co., 83 Wis., 583, 53 N. W., 912, 18 L. 140 Mo., 634, 41 S. W., 915. R. A., 553. •13 Coast Line R. Co. (;. Cohen, ^'^ Hill v. Pierson, 45 Neb., 503, 50 Ga., 451; Placke v. Union D. R. 63 N. W., 8v)5. Co., 140 Mo., 634, 41 S. W., 915. ^^ Perkins v. M. & C. T. Co., 48 ••■• Hay r. Weber, 79 Wis., 587, 48 N. .L Eq. 499, 22 Atl., 180. N. W.. 859, 24 Am. St. Rep., 737; ''s Cherry v. City of Rock Hill, Pittsburg, F. W. & C. R. Co. v. 48 S. C, 553, 26 S. E., 798. CHAP. XIII.] AGAINST NUISANCE. 729 liquor license i^^ to enjoin hackmen and cabmen from crowd- ing upon the sidewalk in front of plaintiff's railroad depot for the purpose of soliciting the patronage of its passengers;*^ ya all of which cases, and in numerous others, the relief is denied because of the failure of the plaintiff to show any damage to himself or to his property which differs in kind from that suffered by the public generally. § 764. Distinction between information by attorney-general and bill by citizen. "When proceedings are had to enjoin a public nuisance, such as the pollution of a river by a board of municipal officers in violation of an act of parliament under which they are acting, a distinction is drawn, as to the necessity of proving an actual injury, between the case of an information filed by the attorney-general in behalf of the public, and a bill filed by private citizens in their own behalf. And in the former case it is held to be unnecessary for the attorney-general to establish any actual injury, the statute having prohibited the act complained of; while in the latter case it is held to be necessary for plaintiffs to prove that the act which they seek to enjoin is in fact a nuisance.'*^ So the proper public officers may enjoin the unlawful obstruction of a public highway irrespective of the question of the damage inflicted."*- But the rule as thus announced has been limited to cases of relief sought upon final hearing and it has accordingly been held that an injunc- tion should not be granted upon an interlocutory application unless substantial injury to the public be shown.'*^ § 765. Floating elevator in harbor. The use by defendants of a floating elevator in a canal or basin forming part of the sflNast V. Town of Eden, 89 bury Bridge Co., 21 Ch. D., 752. Wis., 610, 62 N. W., 409. And see Attorney-General v. Ac- 40 Pittsburg, F. W. & C. R. Co. ton Local Board, 22 Cli. D.. 221. V. Cheevers, 149 111., 430, 37 N. E., 42 Smith v. McDowell, 148 111., 49, 24 L. R. A., 156. 51, 35 N. E., 141, 22 L. R. A., 393. 41 Attorney-General v. Cocker- ■*.■? Stockton r. Central R. Co., 50 mouth Local Board, L. R. 18 Eq., N. .1. Eq., 52, 24 Atl., 964, 17 L. R. 172; Attorney-General r. Shrews- A. 97. 780 INJUNCTIONS. [chap. XIII. harbor of a city, for the purpose of transferring grain in bulk from vessels to canal boats, does not constitute such a public nuisance as to warrant an injunction upon the application of the attorney-general in behalf of the people. And this is true, even though the use of such elevator sometimes causes tempo- rary inconvenience and slight obstruction to navigation; since in such a case the court will balance the public bene- fit resulting from the act complained of against the private and temporary inconvenience resulting from such act.^'* § 766. Obstruction of navigable river by dam. The ob- struction of a navigable river by the erection of a dam constitutes such a public nuisance or purpresture as to justify the interposition of equity by injunction; and when the supreme court of the state is empowered to issue the writ of injunction as a branch of its original jurisdiction, it may, in such a case, entertain an informa- tion by the attorney-general to restrain the proposed erec- tion.-*^ Where, however, the municipal authorities of a city are proceeding to erect a dam over a navigable river, under an act of legislature which expressly restricts the construction so that it shall not obstruct navigation, the court will not assume in advance that it is impossible to pursue the power as granted, nor will it restrain the erection upon the assumed ground that the dam will obstruct naviga- tion.-* ''^ § 767. Effect of legislative sanction. A public nuisance can not exist in acts which are warranted by law or authorized by legislative sanction, even though the act complained of might, independent of statute, be a nuisance.-*^ Nor will a charge in the bill of special and peculiar injury to the coin- 44 People V. Horton, 64 N. Y., 40 State v. City of Eau Claire, 40 610, affirming S. C, 5 Hun, 516. See Wis., 533. Hart v. Mayor, 9 Wend., 572, af- 47 McFarland v. Orange & N. H. firming S. C, 3 Paige, 213. C. R. Co., 2 Beas., 17; Hinchman ■*■• Attorney-General v. City of v. Paterson H. R. Co., 2 C. E. Eau Claire, 37 Wis., 400. Green, 75; Hogencamp v. Same, CIIAF. XIII.] AGAINST NUISANCE. 731 plainant avail, if the work sought to be restrained is au- thorized by legislative enactment.'*^ § 768. Obstruction of water in city ; obstruction of square ; prize-fights. The erection of a foundation wall as a support for a building in such manner as to obstruct the natural flow of water in a river flowing through a city, thereby con- tributing to the overflow of the banks in high water, is a public nuisance, which will be enjoined at the suit of the city corporation.'*'-' And the owners of adjacent lots are en- titled to an injunction against the obstruction of a square dedicated to public use ;^*^ or the bill may be filed by the corporate authorities of the town, with whom may be joined private citizens affected by the nuisance.^^ So the erection of a bay window projecting beyond the building line and into a public street is such an encroachment upon the pub- lic highway as to constitute a public nuisance, which may be enjoined upon an information by the attorney-general.^- So the maintenance of an establishment for the holding of prize fights may be enjoined as a public nuisance in a bill filed by the public officials.^^ § 769. Violation of private right necessary. Equity will not restrain the continuance of a public nuisance in behalf of lb., 83; Attorney-General v. New so Williams v. Smith, 22 Wis., York & L. B. R. Co., 9 C. E. Green, 594; LeClercq v. Trustees, 7 Ohio, 49; Rex v. Pease, 4 B. & A., 30; 354; Trustees v. Cowen, 4 Paige, Sawyer v. Davis, 136 Mass., 239, 49 510. Am. St. Rep., 27; Murtha v. Love- si Trustees v. Cowen, 4 Paige, well, 166 Mass., 391, 44 N. E., 347, 510. And see further, as to joinder 55 Am. St. Rep., 410. And see of corporate authorities and pri- Bordentown Road v. Camden R. vate citizens to enjoin a public nui- Co., 2 Harr., 314; Davis r. Mayor, sance. Mayor r. Bolt, 5 Ves., 129. 14 N. Y., 506; Attorney-General v. S2 Reimer's Appeal, 100 Pa. St., Conservators, 1 Hem. & M., 1. But 182. see, contra, LeClercq v. Trustees, 7 ^.i Columbian Athletic Club v. Ohio, 218. State, 143 Ind., 98, 40 N. E., 914. 48 Hogencamp r. Paterson H. R. 28 L. R. A., 728, 52 Am. St. Rep., Co., 2 C. E. Green, 83. 107. ■io Rochester r. Erickson, 46 Barb., 92. 732 INJUNCTIONS. [chap. XIII. a private citizen, merely because it contravenes the general policy, in the absence of any violation of private right. An injunction will therefore be withheld against the perpetration of an act prohibited by public statute, the only ground urged for the relief being the diminution of the profits of a trade or business pursued by complainant in common with others. ^"^ § 770. Navigable creek ; pendency of criminal proceedings. The only ground upon which the obstruction of a navi- gable creek or river can be enjoined is the hindrance to navigation, and where the stream is not in fact navi- gated, and has not been for many years, the injunction will be denied.^^ But the fact that criminal proceedings are pend- ing for the abatement of the nuisance will not prevent the interference of equity. Thus, the proprietor of a mill-dam, the back water from which constitutes a nuisance, may be enjoined in behalf of the people, pending an indictment against him for the same offense, where the right of the public is clear and the injury irreparable.'^^ § 771. Adverse user no bar to relief. In considering the subject of injunctions to restrain private nuisances, it is else- where shown that twenty years adverse user and possession under a claim of right constitute an effectual bar to the exercise of the jurisdiction.*''^ The rule does not, it would seem, prevail in cases of public nuisance, and it is held that no period of use or occupancy, however extended and unin- terrupted, or under whatever claim of right, will prevent a court of equity from restraining the perpetuation of such a nuisance by additions and repairs.^^ § 771 a. Wasting of natural gas. The wasting of natural gas upon which a hirgc iiumlx']' of persons rely for heat- •"■••t Smith V. Lockwood, 13 Barb., to injunction against a nuisance 209. pending an indictment for the ''•'■ Gilbert v. Morris C. & B. Co., same offense. People v. St. Louis, 5 4 Halst. Ch., 495; State v. Carpen- Gilm., 351. ter, 68 Wis., 165. ■<- See § 799, post. f'« Attorney-General v. Hunter, 1 ^'^ Rochester v. Erickson, 46 nev. Eq., 12. And see further, as Barb., 92. CHAP. XIII.] AGAINST NUISANCE. 733 iag purposes and for fuel may be enjoined as a public nui- sance in a bill filed by the state.-'^'' So the use of artificial means which are employed, in violation of the provisions of a statute, to increase the natural fiow of such gas and which are calculated to reduce or cut off the supply, may be en- joined as a nuisance by an association of manufacturers who rely upon the use of the gas for the operation of their plants.^^ But where the statute prohibits the maintenance of natural gas at a pressure of more than three hundred pounds to the square inch, the statute being designed not for the preservation of the supply but as an exercise of the police power to prevent the storage under great pressure of a highly inflammable and explosive substance, and the con- sequent danger attendant thereon, private individuals such as an association of manufacturers can not enjoin the main- tenance of gas at a greater pressure than that allowed by law where no damage actual or threatened is apprehended and where they show no injury different in kind from that which will be suffered by the public generally.*'^ And where a statute attempts to prohibit the transportation and sale of natural gas beyond the limits of the state, such enactment, in so far as it applies to gas which has been reduced to posses- sion, can not be sustained as a valid exercise of the police power, and the sale of such gas contrary to the provisions of the act will therefore not be enjoined.^'- 59 state V. Ohio Oil Co., 150 Ind., Ind. N. G. & O. Co., 155 Ind., 566, 58 21, 49 N. E., 809, 47 L. R. A., 627. N. E., 851. 60 Manufacturers G. & O. Co. v. 62 Manufacturers G. & O. Co. v. Ind. N. G. & O. Co., 155 Ind., 461, Ind. N. G. & O. Co., 155 Ind., 545. 57 N. E., 912, 50 L. R. A., 768. 58 N. E., 706, 53 L. R. A.. 134. 61 Manufacturers G. & 0. Co. v. 734 INJUNCTIONS. [chap. XIII, III. Nuisances to Dwellings. § 772. The general rule stated. 773. Peril to health and comfort, ground for /elief; illustrations of the rule. 774. Considerations governing the court. 775. Cattle yards; manufacture of gas. 776. Powder house. 777. Burning brick; forging iron; storing inflammable material; rifle range; soot; smelting works; engine house; garbage; machine shop; tobacco drying shed. 778. Place of entertainment; horse races; beer garden; circus; play- ing croquet. 779. Ringing of bells. 780. Test in crowded cities; adjacent stable; cooking range; privy; urinal; tenement houses. 781. Further test; machinery operated by steam; printing presses; plaintiff guilty of nuisance. 782. Houses of ill-fame. 783. Party-walls; roofs. 784. Offensive noise and odors; powers of board of health. 785. Annoyance from school house. 786. Effect of plaintiff's laches. 787. Cautious interference with mills. 788. Planing mill; increased risk of fire; manufacturing inflammable material. 789. Effect on use or value of surrounding property; jail not en- joined. 790. Grounds of dissolution. 791. Irreparable injury; mill near railroad track. 792. Changing character of premises; windows in party-wall; man- datory injunction. 792o. Burial ground, when not enjoined; proof of injury must be clear. 793. Joinder of parties, plaintiff and defendant. § 772. The general rule stated. The most frequent in- stance of nuisances of a strictly private nature occurs in the erection of sti-uctures obnoxious or hurtful to buildings used for residence and business i)urposcs. The law ni;iy be regarded as settled, that when a business, although lawful in itself, becomes obnoxious to neighl)oring dwellings and renders their CHA.P. XIII.] AGAINST NUISANCE. 735 enjoyment uncomfortable, whether by smoke, cinders, noise, offensive odors, noxious gases, or otherwise, the carrying on of such business is a nuisance which equit}" will restrain.^ Nor is it necessary that the nuisance be injurious to health to warrant the interference,- but mere noise will, in a proper case, suffice to justify a court of equity in interfering,^ and the relief has been granted against the ringing of bells in a church in such manner as to annoy a neighboring resi- dent."* So maintaining a skating rink so near to plaintiff's residence as to cause serious noise and disturbance to plaintiff's in the enjo3anent of their property has been en- joined.^ And the fact that the nuisance is not perpetual, but will only recur occasionally, and then but for a short period, will not avail the defendant if it be an unmistakable nuisance.^ §773. Peril to health and comfort, ground for relief; il- lustrations of the rule. Where loss of health, destruction of business and irreparable injury to property will result from the obnoxious erections, equity will not hesitate to interfere. Thus, the burning of brick so near a dwelling as to expose the premises to danger from fire and to imperil the health of the inmates,^ or the erection of a chandlery ,8 or of a iRoss r. Butler, 4 C. E. Green, 3 white v. Cohen, 1 Drew., 313; 294; Cleveland r. Citizens, 5 C. E. Snyder v. Cabell, 29 West Va., 48, Green, 201; Babcock r. New Jersey 1 S. E., 241. S. Y. Co., 5 C. E. Green, 296; Sny- -J Soltau r. DeHeld, 2 Sim. N. S., der V. Cabell, 29 West Va., 48, 1 S. 133. E., 241; Price v. Oakfield H. C. Co., c Snyder r. Cabell, 29 West Va . 87 Wis., 536, 58 N. W., 1039, 24 L. 48, 1 S. E., 241. R. A., 333. And see Attorney-Gen- e Ross r. Butler, 4 C. E. Green, eral v. Steward, 29 West Va., 415; 294. Robinson v. Baugh, 31 Mich., 290; ^ Fuselier v. Spalding, 2 La. Hutchins v. Smith, 63 Barb., 251; An., 773; Walter r. Selfe, 4 Eng. Imperial Co. v. Broadbent, 7 H. L.., L. & E., 15; S. C, 4 DeG. & Sm., 600; Benner V. Junker, 190 t'a. St., 315; White v. Jameson, L. R. 18 423, 42 Atl., 72. Eq., 303. " Ross V. Butler, 4 C. E. Green, s Howard r. Lee, 3 Sandf., 281. 294. 736 INJUNCTIONS. [CIIAI'. XIII. slaughter house,'^ or of a livery stable,^ <^ or of a cemetery,^ ^ or the operating of lime kilns/ 2 or of a bone factory and ren- dering establishment/^ or of gas works/ ^ or cement works/ •'^ or of a fertilizer factory/^ or of a carpet cleaning estab- lishment/^ or of a planing mill/^ if so near a residence as to imperil the comfort or health of its inmates, will be enjoined. And mere smoke or disagreeable odors, although not noxious, may be sufficient ground for the interference of equity. So offensive noises may afford ground for relief, the main question in all such cases being whether the annoyance is such as materially to interfere with the ordinary comfort of human existence.^-* So, too, stenches and odors resulting from a manufacturing business, which are of an off'ensive nature and injurious to the public health, may be enjoined as a nuisance.-** And the manufacture of vitrol and sulphuric acid in a factor}^ adjoining plaintiff's premises constitutes such a nuisance as entitles him to maintain a bill for an injunction.-^ And the keeping of jacks and stallions across 9 Peck V. Elder, 3 Sandf., 126 Rex V. Cross, 2 Car. & P., 484 Reichert v. Geers, 98 Ind., 73 199; City of Grand Rapids r. Wie- den, 97 Mich., 82, 56 N. W., 233; Millhiser v. Willard, 96 Iowa, 327, Bushnell v. Robeson, 62 Iowa, 540, 65 N. W., 325. 17 N. W., As to the form of 1* Imperial Co. v. Broadbent, 7 the injunction in such case, see H. L., 600. Ballentine v. Webb, 84 Mich.. 38, 47 N. W., 485, 13 L. R. A., 321. 1" Coker i\ Birge, 9 Ga., 425; Same v. Same, 10 Ga., 336. But a livery stable in a city is not a nui- sance per se, and will not, there- fore, be enjoined absolutely, al- though its use may be enjoined to such an extent as it is a nuisance in fact. Shiras v. Olinger, 50 Iowa, 571. 11 Jung V. Neraz, 71 Tex., 396, 9 S. W., 344. 15 Umfreville i\ Johnson, L. R. 10 Ch. App., 580. 16 Evans v. Reading C. F. Co., 160 Pa. St., 209, 28 Atl., 702. J" Rodenhausen v. Craven, 141 Pa. St., 546, 21 Atl., 774, 23 Am. St. Rep., 306. '■^ Rogers v. Week Lumber Co, 117 Wis., 5. I!' Crump V. Lambert, L. R. 3 Eq., 409; S. C, 17 L. T. N. S., 133. 20 Butterfoss r. State, 40 N. J. 1^ Hutch ins v. Smith. 63 Barb., Eq., 325; Williams i'. Osborne. 40 251. N. J. Eq., 235. i« Meigs r. Lister, 8 C. E. Green, 21 Chappell v. Funk. 57 Md., 465; CHAP. XJIl.] AGAINST NUISAXCE, 737 the street from and in front of plaintiff's residence may also be enjoined.-- So maintaining a small pox hospital in close proximity to plaintiff's dwelling will warrant an interlocutory injunction until a final hearing of the cause.^^ And when a city unlawfully permits the use of a street for market pur- poses in front of plaintift"s premises, causing offensive odors, loud noises and disturbance to plaintiff and his family, the city may be restrained from permitting the continuance of such nuisance.-^ And a municipal corporation, which is proceeding without legal authority to construct a sewer upon or near plaintiff' 's premises, which will probably result in great injury to the health of the plaintiff and his family by discharging sewage upon or in the immediate vicinity of his land, may be enjoined from so doing.^s And in such a case a railroad company may enjoin the municipal authorities from discharging sewage upon its right of way.-** So the discharge of sewage from defendant's premises upon those of plaintift"s, thereby seriously endangering health, may be enjoined as a nuisance.-^ So where defendant has connected his premises with a private sewer owned by the plaintiff and is proceeding to make use of it without the latter 's consent, with the result that the pipes are clogged and the contents are deposited in plaintiff' 's basement, such use by the de- fendant will be enjoined.-^ And the unauthorized use by a railway company of the streets of a city for maintaining its Georgia Chemical Co. v. Colquitt, 23 Butler v. Mayor, 74 Ga., 570; 72 Ga., 172. Mayor v. Houk, 113 Ga., 963, 39 S. 22 Farrell v. Cook, 16 Neb., 483, E., 577; Dierks v. Commissioners 20 N. W., 720. of Highways, 142 111., 197, 31 N. 23 Bendelow v. Guardians, 57 L. E., 496. J. R. N. S. Ch., 762. 26 New York C. & H. R. Co. v. 24 McDonald v. Newark, 42 N. J. City of Rochester, 127 N. Y., 591, Eq., 136, 7 Atl., 855. See as to 28 N. E., 416. the right to enjoin the mainten- 27 Evans v. Wilmington & W. R. ance of a blacksmith shop on the Co., 96 N. C, 45, 1 S. E., 529. ground of nuisance, Whitaker r. 2s Boyden v. Walkley, 113 Mich., Hudson, 65 Ga., 43. 609, 71 N. W., 1099. 47 738 INJUNCTIONS. [chap. XIII, side tracks, resulting in continuous injury to an adjacent property owner by reason of noise and smoke, may be en- joined as a nuisance.2^ And the owner of a building may enjoin as a nuisance the maintenance of a tower upon the roof of an adjoining building upon which, during cold weather, ice is formed as the result of the precipitation of spray from a neighboring water-fall, which, in thawing, falls off in pieces of sufficient size to injure plaintiff's property and endanger life thereon.^*' So the noise and pounding- resulting from the use of a locomotive turntable in such a way as to cause injury to adjoining property and great annoyance and discomfort to the inmates affords sufficient ground for an injunction.^^ And relief has been allowed upon behalf of a property owner restraining a city from maintaining manholes in a highway in such condition as to allow the escape of poisonous gases.^^ While it would seem that an intentional and wanton disturbance of the peace and comfort of plaintiff* 's home by his neighbors affords sufficient ground for an injunction, yet the relief will be denied where the plaintiff is as much at fault in the manner complained of as is the defendant and therefore fails to come into equity with clean hands.-^^ § 774. Considerations governing- the court. To justify a court of equity in enjoining a nuisance of the class under consideration, the person aggrieved must show to the court some actual, substantial damage and not merely a remote, contingent, or prospective injury.^^ ]\Ioreover the evidence 20 Kavanagh v. Mobile & G. R. 301, 44 Am. St. Rep., 17. Co., 78 Ga., 271, 2 S. E., 636. ^a Medford v. Levy 31 West Va.,. 30 Davis V. Niagara Falls Co., 171 649, 8 S. B., 302, 2 L. R. A., 368. N. Y., 336, 64 N. E., 4, 57 L. R. A., 13 Am. fcjt. Rep., 887. 545, 89 Am. St. Rep. 817. 34 Salvin r. North Brancepeth 31 Garvey v. L. I. R. Co., 159 Coal Co., L. R. 9 Ch., 705. And N. Y., 323, 54 N. E., 57, 70 Am. St. see this case as to the weight to Rep., 550. be given to scientific evidence in 32 City of Atlanta r. Warnock, 91 such cases. Ga., 210, 18 S. E., 135, 23 L. R. A., CHAP. XIII.] AGAINST NUISANCE. 739 must be clear as to the existence of the nuisance and if it is conflicting and leaves the question in doubt, the plaintiff wii^ be left to his remedy at law.^^ Nor will equity enjoin the proposed erection as a nuisance, merely because it will ob- struct the view of plaintiff's place of business.-"'*^ Nor is the reversioner, or owner in fee of premises occupied by a ten- ant, entitled to enjoin the maintenance of a structure upon adjoining premises, when no positive injury to the reversion is shown, and when it does not appear that such (Structure is of a permanent character.'^'' And upon^ an application to restrain a nuisance consisting in the noise created by a manu- facturing establishment upon adjacent premises, the question for determination by the court is largely a question as to degree, to be determined by the circumstances of the par- ticular case.^^ So upon an application to enjoin a nuisance resulting from defendant's process of manufacturing, the court will consider whether the injury complained of is per- manent and repeated, or merely accidental and occasional. And if it appears that it is of the latter class, and that the business is conducted with due care and precaution, the re- lief may be withheld, but without prejudice to plaintiff's right to bring his action at law.^'' But to warrant an in- junction against odors and gases from an off'ensive business it is not necessary that the odors should be noxious, and if they are so offensive and disagreeable as to render life un- comfortable, equity may interfere.-^o And the fact that the nuisance recurs only when the wind is in a given direc- tion, or that it is surrounded by other nuisances, does not de- prive plaintiffs of their right to relief.^^ But where the acts 35 Nelson v. Milligan, 151 111., 462, 8. See also Dittmann r. Repp, 50 38 N. E., 239. Md., 516. 36 Butt V. Imperial Gas Co., L. R. so Cook v. Forbes, L. R., 5 Eq., 2 Ch., 158. 166. 37 Cooper V. Crabtree, 19 Ch. D., -io Meigs r. Lister, 8 C. E. Green, 193. 199. See Duffy r. Meadows, 131 N. 38 Gaunt V. Fynney, L. R. 8 Ch., C, 31, 42 S. E., 460. ■11 Meigs v. Lister, 8 C. E. Green, 740 ixjuxcTioxs. [ CHAr. xiii. complained of do not constitute a nuisance and the plaintifi is acting strictly within his legal rights, relief will not be granted upon the ground that such acts may greatly en- danger the life of plaintiff who is in very weak health. ^^ § 775. Cattle yards ; manufacture of gas. Illustrations of the relief in cases of nuisances to dwellings are multiform, the principle common to them all being the injury to the health, comfort or convenience of the residents. Thus, the smell or stench arising from the keeping of live hogs or cattle in yards in such numbers and for such length of time as to affect the health or comfort of surrounding residents, is a nuisance which equity will enjoin.^^ And permitting blood and other offal from such animals to run into the waters of a bay may also be enjoined as a nuisance.'*^ So the manufacture of gas in such manner as to produce serious annoyance to persons dwelling in adjoining houses, whether by smoke, gases, effluvia, or odors that may issue from the works, is such a nuisance as to warrant the interposition of a court equity by injunction.^^ And the manufacture of gas so near to plaintiff's premises as to injure his vegetation and crops may be enjoined as a nuisance.^'' But the erec- tion of buildings to be used for the manufacture of gas will not necessarily be enjoined, before it is shown that the works will be conducted in such manner as to cause substantial dis- comfort.^^ 199; Evans r. Reading C. F. Co, Attorney-General v. Steward, 5 C 160 Pa. St., 209, 28 Atl., 702. See E. Green, 415. Duffy r. Meadows, 131 N. C, 31, 45 Cleveland v. Citizens G. L. Co., 42 S. E., 460. 5 C. E. Green, 201. 42 Lord V. DeWitt, 116 Fed., 713. ^g Broadbent v. Imperial Gas Co., 4:i Babcock v. New Jersey S. Y. 7 DeGex, M. & G., 436. Co., 5 C. E. Green, 296; Baker r. 47 Cleveland v. Citizens G. L. Co., Bohannan, 69 Iowa, 60, 28 N. W., 5 C. E. Green, 201. This was a 435. And see Trulock r. Merte, 72 bill to restrain the erection of gas Iowa, 510, 34 N. W., 307. works in such proximity to com- 44 Babcock r. New Jersey S. Y. plainants' residences as to render Co., 5 C. E. Green, 296. And see them uncomfortable. The prin- CHAP. XIII.] AGAINST NUISANCE. 741 § 776. Powder house. The erection of a powder house, or magazine for storing powder or other explosives, so near to plaintiff's premises as to endanger their safety presents a nuisance of such a character as to entitle plaintiff to an in- junction.'*^ But in cases of this character, it is sometimes a ciples governing courts of equity in this class ol cases are laid down by Zabrislcie, Chancellor, as follows: "Any business, however lawful, which causes annoyances that materially interfere with the ordinary comfort, physically, of hu- man existence, is a nuisance that should be restrained; and smoke, noise and bad odors, even when not injurious to health, may render a dwelling so uncomfortable, as to drive from it any one not compelled by poverty to remain. Unpleasant odors, from the very constitution of our nature, render us uncomfort- able, and when continued or re- peated make life uncomfortable. To live comfortably is the chief and most reasonable object of men in acquiring property as the means of attaining it; and any interfer- ence with our neighbor in the com- fortable enjoyment of life is a wrong which the law will redress. The only question is what amounts to that discomfort from which the law will protect. The discomforts must be physical, not such as de- pend upon taste or imagination. But whatever is offensive physi- cally to the senses, and by such offensiveness makes life uncom- fortable, is a nuisance; and it is not the less so, because there may be persons whose habits and occu- pations have brought them to en- dure the same annoyances without discomfort. Other persons or classes of persons whose senses have not been so hardened, and who by their education and habits of life retain the sensitiveness of their natural organization, are entitled to enjoy life in comfort as they are consti- tuted. The law knows no distinc- tion of classes, and will protect any citizen or classes of citizens, from wrongs and grievances that might perhaps be borne by others, with- out suffering or much inconven- ience. The complainants have houses built, and held for the pur- pose of residences, by families of means and respectability, and any- thing that by producing physical discomfort would render them un- fit for such residences, or drive such families from them, is a nui- sance, which the law will restrain. This, then, is the question before me: whether the proposed works of the defendants would produce such annoyance as would render such families, composed of women and children as well as men, un- comfortable; not whether men ac- customed to follow their occupa- tions in places where they are surrounded, and unavoidably, by much that is offensive, may not be so accustomed to odors of like nature as not to be annoyed by these." 48Wier's Appeal, 74 Pa. St., 230; People's Gas Co. v. Tyner, 131 Ind., 277, 31 N. E., 59, 16 L. R. A., 443, 31 Am. St. Rep. 433. 742 INJUNCTIONS. [chap. XIII, grave question whether so great an injury would not be caused to the public by enjoining the business that the party aggrieved should be left to pursue his remedy at law. And in determining whether to enjoin the construction of a powder house, the court will be governed by the real char- acter of the location and its surroundings, and by the rela- tion of the industry in question to the public and to the business interests of the vicinity. Where, therefore, a powder house is indispensable in carrying on important branches of industry, and it is located about two miles from the nearest closely settled district, separated therefrom by intervening hills and ravines, in a sparsely settled locality where there is no lik-elihood of any demand for land for building pur- poses, there is no sufficient reason for sustaining an injunc- tion against the proposed erection.-*^ § 777. Burning- brick ; f org-ing iron ; storing inflammable material; rifle range; soot; smelting works; engine house; garbage; machine shop; tobacco drying shed. It is also held that the burning of brick by the use of anthracite coal, by means of which noxious gases are generated adjacent to plaintiff's residence, resulting in the destruction of plaintiff's trees and shrubbery, constitutes such a nuisance as to call for relief by injunction."^^ And a defendant may be enjoined from permitting soot to issue from a smoke stack upon his premises in a city, to the annoyance and injury of plaintiff and his family .^^ And the maintenance of works for smelt- ing lead so near to plaintiff's farm and residence that the fumes and noxious vapors thereby generated render the land unfit for cultivation, destroy cattle and imperil the health and comfort of plaintiff, affords sufficient ground for re- 4'j Dilworth v. Robinson, 12 Chi- see tliis case for a review of the cago Legal News, 19G; S. C. sub authorities relating to the burn- now;.. Dilworth's Appeal, 91 Pa. St., ing of brick as a nuisance. 247. ■'■'' Sullivan r. Royer. 72 Cal., 248, •'■••' Campbell r. Seaman, 63 N. Y.. 13 Pac, 655. 568, S. C, Thomp. & C, 231. And €HAP. XIII.] AGAINST NUISANCE. 743 lief by injunction.'^- So a railway company may be re- strained from maintaining an engine house for locomotives so near to plaintiff's dwelling as to endanger health and to render plaintiff's premises untenantable by reason of smoke, cinders and soot. Nor, in such case, can the railway company justify the nuisance upon the ground that the en- gine house is a necessity in the operation of its road, no express legislative authority being shown for its mainte- nance.^^ And the throwing of filth and garbage by an adja- cent property owner upon plaintiff's premises, thereby caus- ing constant annoyance and damage, may be enjoined.^"^ So the business of forging iron, which is conducted by defend- ant upon an extended scale with the use of bituminous coal and employing large trip-hammers in a quarter of a city oc- cupied substantially for residence purposes, may be enjoined at the suit of plaintiffs who are the owners and occupants of valuable residences in the immediate vicinity. In such a case, the smoke and soot from the business, with the noise and danger to comfort and health, afford strong ground for equitable relief. Nor does it afford sufficient objection to the relief, under such circumstances, that plaintiff's them- selves have in the same vicinity establishments which are open to the same complaint, or that similar nuisances . are maintained in the vicinity by other persons. '^^ So the storing of inflammable material, such as damp jute, so near to plain- tiff's premises as to endanger them by tire may be enjoined upon the same ground.^*^ And the use of a rifle range in 52 Pennsylvania Lead Co.'s Ap- M., 345. And in this case the in- peal, 96 Pa. St., 116. junction was allowed in a form £•3 Cogswell r. New York, N. H. & which made it practically manda- H. R. R. Co., 103 N. Y., 10, 8 N. tory, since it restrained defendants E., 537. from allowing the damp jute al- 5< Lowe /■. Holbrook, 71 Ga., 563. ready on their premises to remain 55 Robinson r. Baugh, 31 Mich., there, as well as enjoined them 290. from bringing any more upon the 5« Hepburn r. Lordan, 2 Hem. & premises. 74-4 ixjuxcTioxs. [chap, xiii, such manner as to cause great danger to plaintiff and his family by shooting across his premises may be enjoined.-'^'^ And the operation of a machine and blacksmith shop which has been erected against the protests of property owners in a neighborhood given up to fine and costly residences and which results in smoke, soot, cinders, offensive odors and great noise, will be enjoined as a nuisance.^^ So an injunc- tion has been granted against the maintenance of a tobacco drying shed from which vile and noxious odors arose and permeated plaintiff' 's building, causing great discomfort and injury to health.^^ § 778. Place of entertainment ; horse races ; beer garden ; circus; playing croquet. The collection of a large and dis- orderly crowd of people in a place where public entertain- ments are held, adjoining plaintiff' 's premises, and the noise of fireworks with the danger of fire thereby caused, ac- companied by the playing of bands of music, have been held to constitute such a nuisance as to entitle plaintiff' to an injunction.^^ So the carrying on of horse races on Sundays which were conducted in a disorderly and unusual manner, accompanied by cheers of the spectators and the shouts of the bookmakers, thereby seriously disturbing the holding of religious services in the vicinity, has been enjoined as a nuisance.^^ So relief has been allowed against the main- tenance of a disorderly beer garden where crowds of people congregated day and niglit, becoming intoxicated and in- dulging in coarse, profane and vulgar language, to the great 07 McKillopp V. Taylor, 10 C. B. Mich., 649, 64 N. W., 569, 58 Am. Green, 139. As to the right to an St. Rep., 511. injunction to prevent a military "'O Hundley r. Harrison, 123 Ala., officer in the public service from 292, 26 So., 294. causing or permitting rifle practice «" Walker v. Brewster, L. R. 5 upon a common in close proximity Eq., 25. to plaintiffs house, see Hawley v. «i Dewar r. City & S. R. Co., Steele, 6 Ch. D., 521. (1899) 1 L. R. Jr., 345. 08 McMorran v. Fitzgerald, 106 CHAP. XIII.] AGAINST NUISANCE. 745 annoyance of the plaintiff and his family.*'^ But where the nuisance complained of consisted in the establishment of a circus in the vicinity of plaintiff's premises, an injunction was refused when sought upon the ground that the circus would draw together a large number of disorderly people, but granted upon the ground of the noise thereby occasioned, to the inconvenience of plaintiff's family.^^ But an injunc- tion has been refused against the playing of croquet upon a lot opposite plaintiff's house after nightfall and sometimes as late as eleven o'clock, by the light of torches attached to the wickets, where it appeared that the game was not con- ducted in a boisterous or disorderly manner and with no more noise than is usual in such cases nor with the malicious motive of annoying the plaintiff', although it was a great source of annoyance and a cause of extreme nervousness to the plaintiff who was far advanced in pregnancy.*'^ § 779. Ringing of bells. Upon the like ground of prevent- ing a nuisance consisting in a disturbing noise, the ringing of bells has already been mentioned as ground for injunc- tion in behalf of a neighboring resident.^'^ And where plain- tiff's house was located so near to a church that the ringing of a bell at an early hour in the morning greatly disturbed plaintiff's, and they entered into an agreement with the church authorities, for a valuable consideration, that the bell should not during their lives be rung in the morning, they were protected by injunction from the ringing of the bell in violation of the agreement.*^*^ And an injunction has been granted against the loud and discordant blowing of steam whistles at unnecessary and unreasonable hours."^" 62 Kissel r. Lewis, 156 Ind.. 233, es See Soltau v. DeHeld, 2 Sim. 59 N. E., 478. N. S., 133. 63 Inchbald v. Robinson, and ec Martin v. Nutkin, 2 P. Wms., Inchbald c. Barrington, L. R. 4 Cli., 266. 388. 6- Hill r. McBurney 0. & F. Co., 64 Akers r. Marsh, 19 App. D. 112 Ga., 788, 38 S. E., 42, 52 L. R. C, 28. See this case as to the A., 398. test to be applied in such cases. 746 IN JUNCTIOXS. [chap. XIII, §780. Test in crowded cities; adjacent stable; cooking range; privy; urinal; tenement houses. Upon the question of what constitutes a nuisance to dwellings in populous ■cities the rule is, in general terms, as regards cases of ad- Joining- houses, that if either party devotes his house or any portion of it to unusual or extraordinary purposes in such manner as to produce a substantial injury to his neigh- bor, such use of the premises will not be regarded as a reasonable use and the person sustaining such substantial injury is entitled to the aid of an injunction. Thus, the use of a building adjoining plaintiff's, in a large city, as a stable and the keeping of horses therein, causing annoy- ance and loss to plaintiff in his business as a lodging-house keeper, constitutes such a nuisance as will be eujoined.*^'^ So the keeping of horses in a stable adjoining plaintiff's premises and the noise resulting therefrom, with the fact of moisture and dampness passing through from defendant's stable to plaintiff's wall, afford sufficient ground for relief by injunction.^^ And the use of a range for cooking pur- poses in a restaurant underneath plaintiff' 's apartment caus- ing an unreasonable amount of heat and smell, has been en- joined as a nuisance.'^" So relief has been granted against the use of a stove in defendant's kitchen in such a way as to render plaintiff's wine cellar so hot as to be untit for the storage of wine.'''^ And the erection and maintenance of, a privy without plaintiff's consent, in a yard owned in common by plaintiff and defendant, or partly upon defend- v.nt's i)remises and partly upon a private alley, may be en- joined."- And in general the erection of a privy so close to pin inti it's dwelling as to result in great discomfort and in- Gs Ball V. Ray, L. R. 8 Ch., 467. "• Reinhardt r. Mentasti, 42 Ch. <■''■< Broder v. Saillard, 2 Ch. D., D., 685; S. C, 58 Law Journal Reu. ■i92. (N. S.) Ch., 787. ■" Sanders-Clark v. Grosvenor t- Kenopsky r. Davis, 27 La. An., Mansions Co.. (1900) 2 Ch., 373. 174; De Give y. Seltzer, 64 Ga., 423. Ci/.AP XIII. J AGAINST NUISANCE. 747 jury to health will be enjoined.""' Nor is it a defense to the maintenance of such a nuisance that the defendant in- tends to counteract its evil effects by the use of disinfect- ants.'''^ And an injunction is properly granted against tbc maintenance of sinks and urinals in the premises adjoin- .ing the plaintiffs, which are so imperfectly connected with the sewers that the filth and refuse penetrates plaintiff's cellar wall, forming noxious and oft'ensive pools upon his premises which render them unfit for habitation.'^'' So the municipal authorities will be enjoined from draining the waterclosets and urinals of a public building, such as a court liouse in process of construction, in such a way that the re- fuse will be deposited upon plaintift"s land.''''^ But an in- junction has been refused against the erection of a urinal by a municipal corporation, when it did not appear that defend- ants were transcending their powers, and when it was not shown that the proposed erection would constitute a nui- sance.'^'^ Nor will the owner of real estate in a city be en- joined, at the suit of an adjacent property owner, from erect- ing tenement houses upon his premises, upon the ground that they are to be occupied by colored families for the purpose of annoying plaintiff'."*^ §781. Further test; machinery operated by steam; print- ing- presses; plaintiff guilty of nuisance. In determining whether a proper case is jDresented for relief by injunction against nuisances to buildings in cities, a satisfactory test is, whether the matter complained of produces such a condition of things as in the judgment of reasonable men is produc- tive of actual physical discomfort to persons of ordinary sen- sibilities and of ordinary tastes and habits, and such as, in 73 Wahle r. Reinbach, 76 111., 322; '•' Pierce r. Gibson County, 107 Radican v. Buckley, 138 Ind., 582, Tenn., 224, 64 S. W. 33, 55 L. R. A., 38 N. E., 53. 477, 89 Am. St. Rep., 946. ~i Radican r. Buckley, 138 Ind., ' ' Biddulph v. Vestry of St. 582, 38 N. E., 53. George, 3 DeG., J. & S., 493. T5 Fleischner r. Citizens I. Co., 25 's Palloon r. Schilling, 29 Kan., Ore., 119, 35 Pac.,-174. 292. 748 INJUNCTIONS. [chap. XIII. view of the circumstances of the case, is unreasonable and in derogation of plaintiff's rights. Applying this test, the noise caused by the operation of machinery by steam upon premises adjoining plaintiff' 's dwelling, together with the vibratory and jarring eft'ect produced by such machinery upon plaintiff's house, rendering the walls unsafe, will war- rant relief by injunction.'^'-' If, however, the injury to plain- tiff's building from operating machinery by steam power upon adjacent premises aft'ects only the rental value of plaintiff' 's property and can be adequately compensated in damages, equity will decline to interfere by injunction ; especially when the business complained of is not a nuisance jwr se, and when plaintiff' has acquiesced therein for many years. ^'^ And when the alleged nuisance consists in the operation of steam print- ing presses in a city, but the proof is conflicting as to the effect of such operation, it is not error to refuse an inter- locutory injunction which would greatly damage defendant by preventing him from continuing his business.*^ And where it appears that plaintiff, who is seeking to enjoin the operation of heavy steam machinery, is himself conducting a business which is at times harmful to the neighborhood and which frequently results in the pollution of the atmosphere, while this circumstance is not sufficient to justify a nui- sance, it may nevertheless deter the court where plaintiff's right is doubtful.'-- § 782. Houses of ill-fame. The general principles of equity with regard to nuisances and their restraint apply to houses 79 Dittman v. Repp, 50 Md., 516; that an injunction should be Shelfer v. City of London E. L. granted. Co., 64 L. J. N. S. Ch., 216; Dem- so Goodall r. Crofton, 33 Ohio St., arest v. Hardham, 34 N. J. Eq., 271. 469. In the latter case it was or- **i McCaffrey's Appeal, 105 Pa. dered that the defendant should so St., 253. change the position of his ma- ^'^ Straus v. Barnett, 140 Pa. St., chinery as to prevent the vibra- 111, 21 Atl., 253. lion, or, in default of so doing. CHAP. XIII. J AGAIXST NUISANCE. 749 of ill-fame, and the continuance of such houses may be re- strained upon a bill filed by private persons, alleging that the close proximity of such nuisance to their private resi- dence deprives them of the comfortable enjoyment of their property and greatly diminishes its value.^^ Nor does it con- stitute a defense to the granting of the relief in such case that the acts complained of are crimes and as such may be punished under the criminal laws of the state.^^ Nor is it a Aefense that the plaintiff does not himself reside upon the premises but rents them out to tenants.*^^ So the owner of dwelling houses, who, with full knowledge of such use, rents them to be used as houses of prostitution, may be enjoined from renting them for such purposes.^'' But to entitle the plaintiff' to relief, he must make distinct and positive aver- ments and allegations sufficient to show that the acts com- plained of in fact amount to a nuisance.^^ §783. Party-walls; roofs. In the case of adjacent lot own- ers between whom there is a party-will, equity may enjoin one of such owners from maintaining his roof in such man- ner and of such construction that water, snow and ice there- from fall upon the roof of the adjacent owner, to its great damage and causing serious danger.^^ But in conformity with the maxim that he who would have equity must do equity, it is held that where one seeks to restrain an ad- 83 Hamilton v. Whitridge, 11 Md., tenance of the house would depre- 128; Cranford r. Tyrrell, 128 N. Y., elate the value of property in the 341, 28 N. E. 514; Weakley v. vicinity and that it was obnoxious Page, 102 Tenn., 178, 53 S. W., 551, tc the neighborhood, the relief was 46 L. R. A., 552; Blagen v. Smith, denied on the ground that the 34 Ore., 394, 56 Pac, 292, 44 L. R. nuisance was a crime. A., 522. 85 Weakley v. Page, 102 Tenn., 84 Cranford r. Tyrrell, 128 N. Y., 178, 53 S. W., 551, 46 L. R. A., 552. 341, 28 N. E., 514. And see, ante, se Marsan v. French, 61 Tex., 173. § 20a. But see, contra, Neaf v. 87 Redway v. Moore, 3 Idaho, 312, Palmer, 103 Ky., 496, 45 S. W., 506, 29 Pac, 104. 41 L. R. A., 219, where, although ss Brooks v. Curtis, 4 Lans., 283. it appeared clearly that the main- 750 ixjuxcTioxs. [chap. xiii. jaceiit lot owner from using his Avail as a party-wall, but plaintiff's wall projects over upon elefenclant's lot, plain- tiff can have relief only upon condition of removing so much of his wall as projects upon defendant's preraises.^'^ § 784. Offensive noise and odors ; powers of board of health. The handling of old iron so near to plaintiff"s dwell- ing as to cause great noise injurious to the health and com- fort of plaintiff's family, and the drying of old rags and sheepskins upon the roof of defendant's premises in the vicinity of plaintiff's, thereby emitting unwholesome and un- healthful odors, would seem to be sufficient ground for an injunction. And where in an action, under the procedure of the state, to recover damages for such a nuisance as well as for an injunction, the court directs all the issues to be tried by a jury and the jury find a verdict for plaintiff, with damages, it is held that the verdict necessarily finds that defendants have committed the acts charged as a nuisance, and therefore entitles plaintiff' to an injunction.*^^ And a municipal board of health, which is authorized to prohibit che exercise of any offensive trade or employment within a city, having declared a particular trade to be a nuisance and. prohibited its exercise, may maintain an action to re- strain the prosecution of such trade.''^ § 785. Annoyance from school house. It is, however, im- portant to bear in mind that the mere fact of a depreciation in the value of plaintiff" 's property, by the act which he seeks to restrain as a nuisance, will not warrant a court of equity in granting an injunction unless the act complained of is a nuisance in law. Where, therefore, it is sought to en- join the erection of a school house upon premises adjoining those of plaintiff', the relief will not be allowed merely upon the ground that such erection will depreciate the value of 80 Guttenberger r. Woods, 51 Cal., reversing S. C, 1 Thomp. & C, 590. 523. '-'^ City of Taunton r. Taylor, 116- 00 Parker r. Laney, 58 N. Y., 469, Mass., 254. CHAP. XIII.] AGAINST NUISANCE. - 751 plaintiff's property and cause him some annoyance and in- convenience.^2 § 786. Effect of plaintiff's laches. He who seeks relief against a nuisance must show due diligence in the assertion of his rights, and where complainant has been guilty of great laches, or has allowed defendant for a long period to continue in the erection of his obnoxious structure at great expense and without molestation, equity will not interfere.*^^ Even where the cause of complaint has been temporarily removed and is about to be renewed, complainants, who have long slept on their rights, will not be allowed to enjoin it as a renewal of the nuisance, and thus put themselves in the posi- tion from which their own laches has debarred them.'^^ Es- pecially will plaintiff's laches be a bar to relief where the granting of the injunction would result in great injury and inconvenience to the public with little corresponding benefit to the plaintiff.^^ It is difficult to fix any precise period of delay as fatal to complainant's right to relief against the nuisance, but where defendant has for more than twenty years carried on his trade without molestation, and proves a good prima facie title by prescription, equity will not in- terfere, but will leave the parties to seek their remedy at- law.^^ And it has frequently been decided that where the .92 Harrison y. Good, L. R. 11 Eq., Co., Saxt., 518. Defendants at 338. great expense had erected a dam 93 Parker v. Winnipiseogee L. C. and works, which had continued. & W. Co., 2 Black, 545; Tichenor for several years without molesta- V. Wilson, 4 Halst. Ch., 197; Dana tion from complainant. The water V. Valentine, 5 Met., 8; Weller v. having been temporarily drawn off Smeaton, 1 Cox, 102; Reid v. Gif- and defendants being about to raise ford, 6 Johns. Ch., 19; Southard v. it to its former height, complain- Morris C. & B. K. Co., Saxt, 518; ant sought an injunction to prevent Johnson v. Wyatt, 2 DeGex, J. & them from so doing. The relief S., 17. See also Louisville Coffin was refused upon the principles Co. V. Warren, 78 Ky., 400; Herr r. stated in the text. Central Ky. Asylum, 110 Ky., 282, os Herr r. Central Ky. Asylum.. 61 S. W., 283; Tuttle v. Church, 53 110 Ky., 282, 61 S. W., 283. Fed., 422. oo Dana v. Valentine, 5 Met., 8. ^4 Southard v. Morris C. & B. K. 752 iNJUNCmONS. [chap. xiii. works complained of had been allowed to stand three years and upward, it was such laches as would prevent relief in equity .^^ But it is held that no acquiescence short of twenty years adverse user will bar plaintiff from his right to relief by injunction against a nuisance, unless he is estopped by some act or conduct which has induced defendant to incur expense, or to take action upon the strength of such con- duct.98 §787. Cautious interference with mills. Great caution is exercised in interfering with establishments and erections which tend to promote public convenience, as in the case of mills, and in such cases it will not suffice to show a prob- able or contingent injury, but it must be shown to be inevit- able and undoubted.^ And where a statute provides ample remedy at law for the damages incurred, the injunction will not be allowed.^ And a flouring and corn mill in a city is not a nuisance per se, which will be enjoined as such by a court of equity. Indeed, it may be affirmed as a general rule applicable to cases of this nature, that equity will not enjoin the lawful use of such property in a city, when by the proper application of scientific appliances and machinery the evils complained of may be remedied; and in such case, the court will go no further than to require such appliances to be used.3 Nor will a court of equity, at the suit of an adjacent proprietor occupying the upper portion of his build- ing as a residence, enjoin the operation by defendants of a steam flouring mill in a business locality in a city, when the mill is carefully constructed to avoid injury to others and is operated in a proper manner, even though considerable in- 87 Weller v. Smeaton, 1 Cox, 102; Reid V. Gifford, 6 Johns. Ch., 19; Tichenor v. Wilson, 4 Halst. Ch., 197. 98 Campbell v. Seaman, 63 N. Y., 568; S. C, 2 Thomp. & C, 231. i Barnes v. Calhoun, 2 Ired. Eq., 199; Attorney-General v. Perkins, 2 Dev. Eq., 38. See also Owen v. Phillips, 73 Ind., 284. - Barnes v. Calhoun, 2 Ired. Eq., 199. 3 Green i;. Lake, 54 Miss., 540. •CHAP. XIII.] AGAINST XUISAXCE. 753 convenience and annoyance should result to plaintiff by its operation. In such a case, the court will have due regard to the general interests of the public, and such minor in- conveniences as result to the citizen will be left to be re- dressed by an action for damages rather than by the more .severe remedy of injunction.^ Upon the same principles, an injunction will not be granted against the operation of an electric lighting plant which furnishes light to the inhabitants of a city, because of noise, smoke and vibration, where de- fendant has made alterations in the plant to diminish the evils complained of which leave it a matter of doubt whether plaintiff is suffering any substantial injury or discomfort greater than that which is usually incident to city life, espe- cially where the granting of the writ would result in great inconvenience to the public by depriving them of lights.^ § 788. Planing mill ; increased risk of fire ; manufacturing inflammable material. When the business proposed is law- ful in itself, as in the erection of a planing mill, and the testimony is conflicting as to whether its operation will prove a nuisance, equity will not interfere, the question of nuisance being doubtful.*^ And the fact that a planing mill would injure plaintiff's business, or injure the reputation of his house as a boarding-house and make it less desirable for that purpose, thereby lessening his profits, will not warrant an injunction when it is not shown that the operation of such mill would be a nuisance.''' But a bill alleging that a planing mill is to be located in a residence portion of a city in close proximity to plaintiff's dwelling and that its operation will cause a great amount of steam, dust, dirt, smoke and noise, which will penetrate into plaintiff's house, making it necessary to keep the windows closed and render- 4 Gilbert v. Showerman, 23 Mich., e Duncan v. Hayes, 7 C. E. Green, 448. See Owen v. Phillips, 73 Ind., 25; Dorsey v. Allen, 85 N. C, 358. 284. 7 Duncan v. Hayes, 7 C. E. Green, 5 English V. Progress E. L. & M. 25. Co., 95 Ala., 259, 10 So., 134. 48 754 INJUNCTIONS. [chap. XIII. ing it unfit for habitation, has been held good on demurrer.- But the increased risk of fire resulting from defendant's structure and the consequent larger rates of insurance will not of themselves warrant relief by injunction.'^ So when the bill sought to restrain the erection of a manufactory for the making of felt roofing, upon the ground that the dirt, smoke and appurtenances of the factory, with the inflammable nature of the materials used in the process of manufacturing- such roofing, would impair health and destroy the character of plaintiff's property for dwelling purposes, and that ir- reparable and continuing injury would result to plaintiffs from the carrj'ing on of such business, it was held that the facts constituting the alleged injury were not sufficiently stated to justify an injunction in the first instance.^^ §789. Effect on use or value of surrounding property, jail not enjoined. It is no ground for interference that the erection of the alleged nuisance would prevent the use of surrounding property for such buildings as, in the ordinary course of affairs and the extension of a city, would be erected.ii go equity wnll not interfere in behalf of the own- ers of vacant lots, to enjoin the carrying on of a soap fac- tory, on the ground that it prevents the lots from being built upon and dimishes their value, since the proper remedy is by an action at law to recover damages for the diminished value of the property .1- And the erection of a jail being a matter of public necessity and not a nuisance per se, it will not be enjoined upon the ground that it might cause annoy- ance or inconvenience to a property owner residing in its immediate vicinity.^-' « Rogers v. Week Lumber Co., 117 10 Adams v. Michael, 38 Md., 123. Wis., 5, 93 N. W., 821. " Rtiodes v. Dunbar, 57 Pa. St., !» Duncan v. Hayes, 7 C. E. Green, 274. 25; Rliodes v. Dunbar, 57 Pa. St., i-' Dana v. Valentine, 5 Met, 8. 274; Chambers v. Cramer, 49 West i-' Burwell v. Commissioners, 93 Va., 395, 38 S. E., 691, 54 L. R. A., N. C, 73. 545. CHAP. XIII.] AGAINST NUISANCE. 755 §790. Grounds of dissolution. The fact that the answer, while admitting the material facts charged in the bill, denies the conclusion that the erection would be a nuisance, will not warrant a dissolution of the injunction.^'* But if upon the bill and answer it does not appear that the structure complained of is 'prima facie a nuisance, the injunction will be dissolved, the defendant, however, proceeding at his peril in the erection.^ ^ Nor will an injunction be continued against the erection of a structure where the facts do not satisfactorily show a probability of irreparable injury to complainants, or that it would endanger their lives or health, or prove materially injurious to their comfort.^'^ §791. Irreparable injury; mill near railroad track. Relief bj' injunction is sometimes granted where damages for the commission of the nuisance would be difficult of adjustment pecuniarily, thus rendering the remedy at law ineffectual. Upon this ground the erection of a mill so near a railway track as not to leave room for repairing the track has been enjoined as a nuisance.^''' And it is held that a bill to en- join the erection of a nuisance in close proximity to com- plainant's buildings, which contains allegations of irreparable injury to complainant, is not demurrable for want of equity, nor as stating a case in which the sole remedy is at law, , nor because it fails to show that the rights of the parties have been settled at law.^^ § 792. Changing- character of premises ; windows in party- wall; mandatory injunction. Lessees of a building who have 14 Coker v. Birge, 9 Ga., 425. And in Porter v. Witham, 17 15 Mygatt V. Goetchins, 20 Ga., Maine, 292, it is held that, unless 350; Cunningham v. Rice, 28 Ga., complainant's right has been es- 30. tablished at law, he must show a 16 Thebaut v. Canova, 11 Fla., long and uninterrupted user to 143. warrant the interposition of equity. 1' Cunningham v. Rome R. Co., But the weight of authority would 27 Ga., 499. seem to be against this position. 18 Aldrich v. Howard, 7 R. I., 87. 756 INJUNCTIONS. [chap. XIII. rented upon representations to the lessor that they desired the building" for a private dwelling may be enjoined from altering it in such manner as to carry on the business of coach making, the house being in danger of falling froiu the alterations.^*^ And the converting of old houses in a large city to purposes -which render them dangerous to the public may be enjoined as a nuisance.-*^ So where party-walls are required by law to be of solid brick or stone, without open- ings, the erection by a lot owner of a party-wall containing windows constitutes such a nuisance as comes within the re- straining powers of equity, and it will be enjoined.-^ And in a case of nuisance to a dwelling house, the injunction will be made mandatory if the circumstances of the case require it.-^ §792 a. Burial gfround, when not enjoined; proof of injury must be clear. A burial ground is not such a nuisance per se as to entitle land owners in its vicinity to enjoin its con- tinuance. And unless such special circumstances are shown as to satisfy the court that the continued use of the prem- ises for burial will result in special injury to plaintiff, ir- reparable by the ordinary remedies at law, equity will not interfere.-^ And to warrant an injunction against the con- tinuance of a burial ground general averments of injury will not suffice, but facts and circumstances must be distinctly averred from which the court may plainly see that, unless the relief is granted, there will be a diminution of plaintiff's enjoyment of his premises and probable injury to the health 19 Bonnett v. Sadler, 14 Ves., 526. from further using the buildings -'0 Mayor v. Bolt, 5 Ves., 129. In as storehouses. this case certain old houses in Lon- -^ Vollmer's Appeal, 61 Pa. St., don were about to be pulled down 118. in making improvements in the -':; Hervey v. Smith, 1 Kay & J., city, and defendant had stored in 392. See also Gale r. Abbott, 8 Jur. them large quantities of sugar, so N. S., 987. that two of the houses had actual- 23 Kingsbury. ?;. Flowers, 65 Ala., ly fallen and others were in great 479; Dunn v. City of Austin, 77 danger. Defendant was enjoined Tex., 139, 11 S. W., 1125. CHAP. XIII.] AGAINST NUISANCE. 757 of his family.-^ And to warrant relief in such cases, proof of the injury complained of must be clear, especially where the granting of the injunction would work great public in- convenience. Where, therefore, there is no proof of any sub- stantial injury to the plaintiff and it appears doubtful whether any will ever occur, the injunction should be de- nied.25 But where it clearly appears that the maintenance of a burial ground in the vicinity of the plaintiff's dwell- ing will result in injury to life and health either by cor- rupting the surrounding atmosphere or the water of wells and springs, relief by injunction may be granted owing to the inadequacy of the legal remedy.-'^ And where a statute grants municipal authorities power to acquire land for ceme- tery purposes but provides that land shall not be appro- priated for that purpose . within two hundred yards of any dwelling, the establishment of a burial ground at a less distance than that prescribed may be enjoined.^" § 793. Joinder of parties, plaintiff and defendant. Upon the question of the joinder of plaintiff's in an action to re- strain a nuisance to dwellings, the authorities are not uni- form. In this country it has been held that separate own- ers of distinct property interests which are injuriously af- fected by the same nuisance may join in maintaining a bill for an injunction.^^ Under the English chancery practice, however, a dift'erent rule seems to have prevailed. And when different persons joined in the action, each having a separate tenement, the bill praying an injunction against the erection of 24 Kingsbury v. Flowers, 65 Ala., Lowe v. Prospect H. C. Assn., 58 479; Dunn v. City of Austin, 77 Neb., 94, 78 N. W., 488, 46 L. R. Tex., 139, 11 S. W., 1125. See also A., 237. Upjohn V. Board of Health, 46 27 Henry v. Trustees, 48 Ohio St., Mich., 542, 9 N. W., 845. 671, 30 N. E., 1122. 25 AVahl V. M. E. Cemetery Assn., 2s Robinson v. Baugh, 31 Mich., 197 Pa. St., 197, 46 Atl., 913. 290; Bushnell v. Robeson, 62 Iowa, 26 Clark v. Lawrence, 6 Jones 540, 17 N. W., 888. And see Jung Eq. (N. C), 83, 78 Am. Dec, 241; v. Neraz, 71 Tex., 396, 9 S. W., 344. 758 INJUNCTIONS. [chap. Xllt. a nuisance in the neighborhood of their premises, the relief was denied, upon the ground that, as each of the plaintiffs had a separate nuisance to complain of, that which would be an answer to one would not be an answer to the (others.-'' But as regards the defendants to the action, it is held that when the owner of the premises grants a license to another person to do an act upon the premises which amounts to a nuisance, such as the burning of brick, the injunction may go against the owner as well as against the person actually committing the nuisance.^*^ 29 Hudson V. Maddison, 12 Sim., "o White v. Jameson, L. R. 18 416. Eq., 303. CHAP. XIII.] AGAINST NUISANCE. 759 IV. Nuisances to Water. § 794. Foundation of the jurisdiction. 795. When relief granted. 796. Plaintiff's right should be established; diversion of water from mills. 797. Plaintiff's delay and acquiescence. 798. Right to relief extends to quality as well as quantity of water; when relief denied. 799. Right by prescription. 800. Limitations upon doctrine of adverse enjoyment. 801. Subterranean streams; cemetery; digging well. 802. Construction of levee enjoined. 803. Improvements in navigable streams; suit by United States; court need only have jurisdiction of person. 804. Mandatory injunction. 805. Discharge from mine. 806. When relief allowed between tenants in common. 807. Waste of water supplying mill. 808. Restrictions upon the relief. 809. Questions of surface water. 810. Pollution of streams by sewage. 811. The same. 812. Navigable rivers; erection of wharves; obstructions. 813. Riparian owners allowed relief. 814. Logs and booms; obstruction by railway. 815. Regatta upon lake; pollution of fish ponds. 815a. Raising or lowering of lake level. § 794. Foundation cf the jurisdiction. The interference of equity by the writ of injunction is frequently invoked to restrain nuisances to water and the infringement of riparian rights. As an incident to the ownership of the adjacent soil, a riparian proprietor has an interest of a usufructuary nature in the water flowing past his land, which equity will pro- tect. This right or interest being common to all owners of land adjacent to a stream, no proprietor can, in the ab- sence of a right to exclusive enjoyment, use the water in such manner as to injure adjoining proprietors. Nor can he, unless authorized by adjacent owners, divert the water from its natural course, to the injury of the owner below, or 760 INJUNCTIONS. [chap. XIII. change its quality, or diminisli its quantity, or cause it to flow back upon the proprietor above.^ And the test to be applied in such cases is whether the use of the water is such as to cause a substantial injury to other proprietors in their common right.^ The jurisdiction of equity in this class of cases may be regarded as 'ancient and well established. It is founded upon the pressing necessity of immediate relief being granted where, in the absence of such relief, perma- nent mischief and lasting injury might result,^ and also rests upon the necessity of preventing multiplicity of suits.* And the right being established, together with the wrongful in- terruption of that right tending to the great injury of the person aggrieved, equity will interfere.^ And while an in- junction will not ordinarily be granted unless positive and substantial injury be shown, yet where adverse rights are likely to arise, it may be allowed, even though the injury is trivial, to the extent of vindicating the plaintiff's rights and of preventing their loss by adverse user or lapse of time.^ § 795. When relief granted. "Where the extent of the in- juries resulting from the invasion of the right is difficult of estimation, an injunction is regarded as the most efficient remedy.''^ And riparian proprietors, owning to the center of a 1 Webb V. Portland Mfg. Co., 3 * Lyon v. McLaughlin, 32 Vt., Sumner, 189; Bealey v. Shaw, 6 423. East, 208 ; Mason v. Hill, 5 B. & ^' Gardner v. Newburgh, 2 Johns. A., 1; McCormick v. Horan, 81 N. Ch., 162, and. cases cited; McCor- Y., 86; Rigney v. Tacoma L. & W. mick v. Horan, 81 N. Y., 86. Co., 9 Wash. &76, 37 Pac, 297, 23 e Ulbricht v. Eufaula Water Co., L. R. A 425; Roberts v. Gwyrfai 86 Ala., 587, 6 So., 78, 4 L. R. A., District Council, (1899) 2 Ch., 608; 572, 11 Am. St. Rep., 72; dictum in Saunders v. Bluefield W. Co., 58 Franklin v. Pollard Mill Co., 88 Fed., 133. Ala., 318, 6 So., 685. 2 Tyler v. Wilkinson, 4 Mason, 7 Lyon y. McLaughlin, 32 Vt., 423. 397. See also Weiss v. Oregon L The court say: "Where the inva- & S. Co., 13 Ore., 496, 11 Pac, 255. sion of a right of this kind of 3 Gardner v. Newburgh, 2 J*ohns. property is threatened and in- Ch., 162, and cases cited. tended, which is necessarily to b^ CHAP, XIII.] AGAINST NUISAXCE. 761 stream, are entitled to the aid of equity to prevent a diver- sion of the waters from their natural channel. Nor does the neglect of complainants to use or appropriate the water- power, or the fact that they have, as yet, sustained but small pecuniary damage, or that defendants would be sub- jected to heavy expense if compelled to restore the water to its original channel, present such objections as would war- rant a court of equity in refusing the relief.^ And where one owns land on both sides of a stream not navigable, and never declared a public highway, he is entitled to an injunction to restrain the floating of logs down his stream to the in- jury of his premises.^ And where, in such case, different parties assert the same right to the use of the stream, they may be joined as defendants in the same action.^^ But the floating of logs down a navigable river, which has been al- lowed under color of legislative authority for many years, will not be enjoined as a nuisance at the suit of a steam- boat proprietor navigating the river, plaintiff's right not having been established at law and there having been long acquiescence in the action of defendant.^ ^ §796. Plaintiff's right should, be established; diversion of water from mills. In general it must be made to appear that complainant's right to enjoy the land has been satisfactorily established at law.^- And where this does not appear, and continuing and operate prospec- sense of the law relating to this tively and indefinitely, and the ex- subject." tent of the injurious consequences « Corning v. Troy Factory, 40 N. is contingent and doubtful of esti- Y., 191, affirming S. C, 34 Barb., mation, the writ of injunction is 485, 39 Barb., 311; Tuolumne not only permissible, but is the Water Co. v. Chapman, 8 Cal., most appropriate means of rem- 392; Weiss v. Oregon I. & S. Co., edy. It affords, in fact, the only 13 Ore., 496, 11 Pac, 255. adequate and sure remedy. The ^ Curtis /;. Keesler, 14 Barb., 511. very doubtfulness as to the extent lo Meyer r. Phillips, 97 N. Y., 485. of the prospective injury and the n Herrman t;. Beef Slough M. Co., impossibility of ascertaining the 1 Fed., 145. measure of just reparation render ^- Coe v. Winnipiseogee Co., 3» such an injury irreparable in the N. H., 255; Weller v. Smeaton, 1 762 INJUNCTIONS. [chap. XIII. it is not alleged that there is danger of irreparable mis- chief or of injury not susceptible of compensation in a suit at law, the bill is obnoxious to a demurrer for want of equity.^^ A diversion of water from complainant's mills, where valuable and extensive machinery is being used and employment furnished to a large number of men, consti- tutes a sufficient ground for an injunction.^^ But the con- struction of an artificial channel which merely has the effect of giving more direct course to water which had from time immemorial drained off through a natural outlet, will not be enjoined, the volume of water not being increased.^ ^ Nor will the diversion of water be enjoined at the suit of one mill owner against others when it is not shown that the in- jury is of a permanent or irreparable nature.^ "^ And a court of equity will not in limine and before a determination of the legal right restrain an upper proprietor from diverting water from a non-navigable stream when no injury has yet been sustained and the question of injury is conjectural, and when the granting of an injunction would result in ir- reparable injury to the defendant.^''' §797. Plaintiff's delay and. acquiescence. While a court of equity may interfere for the protection of the legal right to the use of water in a stream which is being fouled, and whose value is being impaired for manufacturing purposes, by defendant's works farther up the stream, yet if com- Cox, 102; Meyer v. Phillips, 97 N. title at law where the averments Y., 485. See also Burnham v. of his rights are admitted by de- Kempton, 44 N. H., 78. But see, miirrer. Tuolumne Water Co. v. contra. Corning v. Troy Factory, Chapman, 8 Cal., 302. 40 N. Y., 191, affirming S. C, 34 i^ Wright v. Moore, 38 Ala., 593. Barb., 485, 39 Barb., 311; Morris i: lo potier's Executors v. Burden, Central, 1 C. E. Green, 419; Bu- 38 Ala., 651. chanan v. Grand River Co., 48 i« Westbrook M. Co. v. Warren, Mich., 364, 12 N. W., 490. 77 Me., 437, 1 Atl., 246; Haskell v. ':»Coe V. Winnipiseogee Co., 37 Thurston, 80 Me., 129, 13 Atl., 273. N. H., 255. But it is held that com- i^ Walton v. Mills, 86 N. C, 280. plainant need not first establish his CHAP. XIII.] AGAIXST NUISANCE. 763 plainants have not used due diligence in the assertion of their rights, and have for a long period allowed defend- ants to erect and operate their works without objection, an injunction will be refused, especially when the injury com- plained of can be compensated in damages at law, and when the granting of the relief would inflict serious injury upon defendants, without doing any practical good to complain- ants.^^ § 798. Rig"ht to relief extends to quality as well as quantity of water; when relief denied. The right of the owner of the realty through which a stream of water flows to the un- interrupted use and enjoyment of the stream, extends to the quality as well as to the quantity of the water.^^ Hence any use of the water which operates to destroy health or to diminish the comfort of a riparian owner will be enjoined as a constantly recurring injury, irreparable in its nature and not susceptible of adequate compensation in damages.-*^ And a court of equity will enjoin the fouling of a stream in such manner as to be injurious to the owner of dye-works, sit- uated further down the stream, by rendering the water unfit for dyeing purposes.-^ So the owner of pulp works situated upon the banks of a stream of clean water may enjoin the owner of a morocco factory from discharging the refuse of the factory into the stream, thereby polluting the water and rendering it unfit for plaintifl^'s use.^- So the depositing of saw dust and other debris from saw mills to such an extent as to interfere seriously with and impair the opera- is Wood V. Sutcliffe, 2 Sim. N. S., dlestadt v. W. S. & P. Co., 93 Wis., 163. 1, 66 N. W., 713; Indianapolis 13 Bealey v. Shaw, 6 East, 208. Water Co. v. American Strawboard See Davis v. Lambertson, 56 Barb., Co., 53 Fed., 970; S. C, on final 480. hearing, 57 Fed., 1000. 20 Holsman v. Boiling Spring 21 Clowes i\ Staffordshire Co., L. Bleaching Co., 1 McCart., 335; Lew R. 8 Ch., 125. is V. Stein, 16 Ala., 214; Mayor v. 22 Jessup & Moore Paper Co., v. Warren M. Co., 59 Md., 96; Mid- Ford, 6 Del. Ch., 52, 33 Atl., 618. 764 INJUNCTIONS. [chap. XIII. tion of plaintiff's mills situated below and upon the same stream, thereby causing a constant and irreparable injury, may be enjoined.^^ And it is proper, in such case, to join as defendants several mill owners the refuse from whose different mills commingles, it being impossible to determine the extent to which each mill contributes to the nuisance. ^^ And the pollution of a running stream used for domestic purposes, the watering of cattle and the cutting of ice, by the underdraining of a cemetery, may be enjoined, the relief being granted even though the water has, to a certain extent, been rendered unwholesome by the washings of manured lands in the vicinity.-^ So the lower riparian owner who uses the water of a stream for live stock purposes may en- join the defendant from polluting the water and injuring the flow by discharging into it the manure and offal from extensive cattle feeding barns in such manner as to injure the stream for husbandry.^"^ So the existence of privies and hog-pens, from which filth and excrement are discharged into a stream from which the supply of water for a city is obtained, affords sufficient ground for an injunction. But upon a bill by one riparian owner to enjoin the pollution of a stream by another, the burden of proof as to the fact of nuisance rests upon plaintiff', and unless the existence of the nui- sance is satisfactorily shown an injunction will not be granted in the first instance.-'^ So when plaintiff fails to show that he has yet sustained any actual injury or pollution of the water to which he is entitled, and when by the use of due care on the part of defendant all injury may be prevented, 23 Lockwood Co. ?;. Lawrence, 77 Cemetery Assn., 159 111., 385, 42 N. Me., 297; Canfield v. Andrew, 54 • E., 891, 31 L. R. A., 109, 50 Am. Vt., 1. St. Rep., 168. ^* Lockwood Co. v. Lawrence, 77 -"Barton v. Union C. Co., 28 Me., 297. And see this case as to Neb., 350, 44 N. W., 454, 7 L. R. the right of defendants by pre- A., 457, 26 Am. St. Rep.. 340. senption in such case. '-" Mayor v. Warren M. Co., oS* ■^■' Barrett v. Mt. Greenwood Md., 90. CHAP. XIII.] AGAINST NUISANCE. 765 an injunction may be refused, without prejudice to the bringing of another action in the future.^s And it is to be observed that past injuries afford no ground for the re- lief, and where it does not certainly appear that the diver- sion of the water will be repeated, or that there is danger of its being repeated, to the injury of complainant, the in- junction will not be allowed.^^ And it is held that an in- junction will not lie against a defendant who sinks an arte- sian well upon his premises and uses the water for the pur- pose of bathing the patients in a sanitarium and hospital located upon his land, to restrain him from allowing the water thus used to flow into a stream which is the natural watercourse of the basin in which the well is situated, it appearing that the defendant is free from negligence or malice and is using all due care to avoid injury to his neigh- Ijor.^*^ § 799. Right by prescription. Adverse possession and ex- ercise of the right of diverting the water for twenty years is sufficient to raise a presumption of a grant, and to defeat ■complainant's right to an injunction against a private nui- sance.^i And this upon the principle that as twenty years' possession gives rise to a presumption of a grant, so a non- nser for that length of time will put an end to the pre- sumption.2- But the extent of the prescriptive right must be limited by the actual enjoyment, and must be commensurate 2s Fletcher v. Bealey,. 28 Ch. D., 58; Holsman v. Boiling Spring €88. Bleaching Co., 1 McCart, 335; 2'J Society v. Morris Canal & McCallum v. Germantown, 54 Pa. Banking Co., Saxt., 157; Potier's St., 40. But in the case of a public Executors i\ Burden, 38 Ala., 651; nuisance it would seem that no Cobb V. Smith, 16 Wis., 661. length of user and occupancy, how- 30 Barnard v. Sherley, 135 Ind., ever extended and under whatever 647, 34 N. E., 600, 35 N. E., 117, claim of right, will avail. Roches- 24 L. R. A., 568, 41 Am. St. Rep., ter r. Erickson, 46 Barb., 92. 454. 32 Shields v. Arndt, 3 Green Ch.. 31 Shields r. Arndt, 3 Green Ch., 234. 234; Coalter v. Hunter, 4 Rand., 766 INJUNCTIONS. [chap. XIII. with that enjoyment.'^^ And to bring a case within the rule, the possession of the one must be so inconsistent with the rights of the other as to amount to an actual ouster.^* Upon the other hand, the right of the riparian owner to Drotection may its«lf arise from prescription. Thus, where a change is made in the natural flow of a water course, as by a canal company in erecting embankments and structures which protect the land of riparian owners from overflow, and this use of the stream is acquiesced in for so long a period as to give a right by prescription or limitation, a riparian owner may enjoin the removal of such structures which would cause the water to overflow his land.-*^'^ § 800. Limitations upon doctrine of adverse enjoyment. The person gaining a right to the use of water by adverse enjoyment for the required period is entitled to what he has enjoyed during that period, and to no more."*^ Thus, if he has exercised the right to use the water upon certain days of the week or in certain quantities, he can not use it upon other daj^s or in difl:'erent :iuantities.^'^ And the user must clearly appear to have been adverse to the right of the other owner, and where the use of the water was originally granted as a loan without consideration, and was afterward continued as a loan, equity will withhold its aid.^s And the owner of an upper tract of land, who has for more than five years enjoyed the undisturbed privilege of flowing the waste water used from artificial sources for irrigating his prem- ises, does not thereby acquire an easement to flow the water over lower lands to such an extent as to seriously injure them, and may be enjoined from so doing.^'-^ •>•■' Holsman r. Boiling Spring Davies r. Williams, 16 Q. B., 546. Bleaching Co., 1 McCart, 335. s" Strutt v. Bovingdon, 5 Esp., ■■'* Pratt V. Lamson, 2 Allen, 275. 56; Brown v. Best, 1 Wils., 174. •'!•"' Biirk r. Siraonson, 104 Ind., •*'< Coalter v Hunter, 4 Rand., 58. 173, 2 N. E., 309, 3 N. E., 826. •■i'> Blaisdel v. Stephen.R 14 Nev., •■!••' Bea'.ey v. Shaw, 6 East, 208; 17. CHAr. XIII.] AGAINST NUISANCE. 767 §801. Subterranean streams; cemetery; digging well. Since it is impossible to establish correlative rights in subterranean streams, the situation of which is not known, an injunction will not be granted against the construction of a cemetery, on the ground that the drainage from the subterranean streams would destroy the use of complainant's spring and greatly injure his land."*^ And the digging of a well on one's own premises, the result of which is to dry up a spring upon adjoining premises, does not warrant a court of equity in interfering, there being no apparent or visible con- nection between the well and the spring, and the water merely percolating into defendant's lancl.-*^ § 802. Construction of levee enjoined. The construction of a levee may be enjoined where its effect would be to ob- struct the drainage of water from complainant's land, and, by causing its overflow, prove injurious to health, i^^icl in such ease the relief may also be granted where complain- ant's rights have not been concluded by payment of just com- pensation for the loss or injury, the damage promising to be irreparable, and the jurisdiction is regarded as inherent in the powers of a court of chancery."*- § 803. Improvements in navigable streams ; suit by United States; court need only have jurisdiction of person. A bill will lie in behalf of the United States for an injunction to protect improvements, which are being made by authority of Congress in navigable waters, from injury by works carried on under authority of a state.'*^ And the United States has such a property right in the navigable rivers of the country as will enable it to maintain a bill to restrain the unlawful obstruction of such waters.'*'* But where the injury appre- 40 Greencastle i\ Hazelett, 23 Ind., 43 United States r. Duluth, 1 186. Dill., 469. 41 Hosier i\ Caldwell, 7 Nev., '4 North Bloomfield G. M. Co. r. 363; Trustees r. Youmans. 45 N. Y.. United States, 32 C. C. A., 84, 8S 362, affirming S. C, 50 Barb., 316. Fed., 664. 42 Martin, Ex parte, 13 Ark., 198. 49 768 INJUNCTIONS. [cnAP. XIII. hended from an alteration in a navigable stream by agents of the government is mere matter of opinion, and is denied by defendant, the injunction will be refused,^-^ It is also to bo observed that the remedy by injunction being primarily tn personam, a nuisance consisting of an injury to water rights may be enjoined in the state which has jurisdiction of the person committing the injury, regardless of the locus of the nuisance itself.-**^' § 804. Mandatory injunction. Although a court of equity will not grant a mandatory injunction to restore the banks of a canal and to make other repairs upon and about canals and reservoirs leased by defendant to cooiplainant, yet sub- stantially the same result may be attained by an order re- straining defendant from impeding or hindering complainant in the use of the water granted by his lease, by continuing to keep the canals and works out of repair, and by divert- ing the water and hindering complainant in its use.^'^ And a mandatory injunction may be granted to compel the res- toration of water to its natural channel which has been wrongfully diverted therefrom.-^'^ So relief by mandatory 45 Avery v. Fox, 1 Abb. U. S. R., spontlents from bringing an action 246; United States v. Mississippi & at law in Ireland on a bill of ex- R. R. B. Co., 1 McCrary, 601. And change given for a gambling debt. in Avery i'. Pox, 1 Abb.U. S. R., But see, contra, Stillman v. White 246, it is held that where Congress Rock Manufacturing Co., 3 Woodb. entrusts an appropriation for pub- & M., 538, where it is held that the lie improvements to one of the de- jurisdiction is in rem, and that a partments, which in turn employs nuisance consisting of a diversion agents to do the work, this depart- of water from a river which is the ment and its agents may be re- boundary line between two states strained from doing the work in an must be enjoined in the state improper manner, even though an where the nuisance is located. And injunction will not lie against the see, ante, § 33. United States. 47 Lane v. Newdigate, 10 Ves., 192. •»« Great Falls v. Worster, 23 N. 4.s Corning r. Troy Factory, 40 N. H., 462. And in Portarlington v. Y., 191, affirming S. C, 34 Barb., Soulby, 3 Myl. & K., 104, the same 485, 39 Barb., 311. This was an principle was recognized upon a action for a mandatory injunction bill filed in England to restrain re- to compel defendants to restore a CHAP. XIII.] AGAINST NUISAXCE, 769 injunction has been granted to compel defendants to fill up a ditch which they had deepened for the purpose of leading surface water from their lands, resulting in serious injury to the lands of adjoining owners.^'-' § 805. Discharge from mine. The filling up of the original channel of a stream with the refuse and offcast from an adjacent mine, to such an extent as to back the water up to complainant's mill-dam, constitutes such a nuisance as to warrant relief by injunction. And where defendants in such case persist in making deposits of earth in such manner as to obstruct the flow of the water, to the manifest injury of complainant, the injunction will be continued.^*^ So a per- plaintiffs to the equitable relief sought is established by authority as well as principle. (Webb v. The Portland Manufacturing Co., 3 Sumner, 190, and cases cited; Tyler V. Wilkinson, 4 Mason, 400; Town- send r. McDonald, 2 Kernan, 381; 2 Story's Equity, §§ 901, 926-7; Angell on Water Courses, §§ 449- 50.) It is further insisted by the defendant that equity will not in- terpose until the right has been settled at law. That formerly was the universal rule, where there was any substantial doubt as to the legal right. (Gardner v. The Trustees of Newburgh, 2 John. Ch., 1G2.) But that rule no longer pre- vails in this state. We have be- fore seen that all the relief to which a party is entitled, arising from the same transaction, may, under the code, be obtained in one suit. Besides there is no doubt as to the legal right in the present case." 40 Foot r. Bronson, 4 Lans., 47. f5o Lamborn r. Covington Com- pany, 2 Md. Ch. 409. stream of water to its natural channel and thus allow plaintiffs the use to which they were entitled. Grover, J., says: "Upon estab- lished principles this is a proper case of equity jurisdiction. First, upon the ground that the remedy at law is .inadequate. The plaint- iffs are entitled to the flow of the stream in its natural channel. Legal remedies can not restore it to them and secure them in the enjoyment of it. Hence the duty of a court of equity to interpose for the accomplishment of that re- sult. A further ground requiring the interposition of equuy is to avoid multiplicity of actions. If equity refuses its aid, the only remedy of the plaintiffs, whose rights have been estrblished, will be to commence suits from day to day, and thus endeavor to make it for the interest of the defendant to do justice by restoring the stream to its channel. If the plaintiffs have no other means of recovering their rights, there is a great defect in jurisprudence. But there is no such defect. The right of the 770 INJUNCTIONS. rCHAP. XIII. petual injimction will be granted to restrain defendants from discharging water from their mines and colliery into a stream to the injury of plaintiff's work and mill below, the water thus pumped from defendant's mine into the stream being charged with sulphuric acid and other deleterious mat- ters, causing great injury to plaintiff's boilers and other machinery.^^ So an injunction will lie to restrain the dis- charge of the refuse of a coal mine into a running stream, resulting in the accumulation of coal dust upon the dam of a mill owner further down the stream, thereby impairing the latter 's water power.^- So a mining company may be enjoined in a suit by a lower mill owner from discharging turbid and discolored water from its mines into a river, thereby discolor- ing the water and rendering it unfit for plaintiff's use in the manufacture of white tissue paper; and in such case it is no defense that the river is more or less polluted by the discharge of other mines."^-'^ ■ § 806. When relief allowed between tenants in common. The relief is sometimes sought between tenants in common of water privileges, and the fact of co-tenancy will not prevent the exercise of the jurisdiction.^^ Thus, where the parties are tenants in common of a mill, mill-dam and water privilege, one of the co-tenants will be restrained from diverting the water to a private mill of his own in such manner as to prevent complainant's manufactory from running except for a short time daily.^^ So where tenants in common of a mill and dam are entitled to their use alternately in proportion to their interests, one of them will be restrained from diverting the water through a private channel on his own premises during the other's term of use.'"'^ But equity will not enjoin an ^1 Pennington v. Brinsop Hall ''^ Kennedy r. Scovil, 12 Conn., Coal Co., 5 Ch. D., 769. 316; Bliss r. Rice, 17 Pick., 23. fis Keppel r. L. C. & N. Co., 200 r,n Kennedy c. Scovil, 12 Conn., Pa. St., 649, 50 At!., 302. 316. cs Beach v. Sparks Mfg. Co., 54 ■■^■' Bliss r. Rice, 17 Pick., 23. But N. .T. Eq., r,r,. 33 Atl., 286. • the court holding that each co-ten- CHAP. XIII.] AGAINST NUISANCE. 771 alleged nuisance consisting in an interference with plaintiff's water-power and mill privileges, when the parties are in dis- pute as to their legal rights, and when no irreparable injury is shown and no necessity for the prevention of a multiplicity of suits, but will leave the parties to a litigation at law to determine their disputed legal rights.^'^ § 807. Waste of water supplying mill. Equity may properly restrain defendants from wasting water running to complain- ants' mill, and thereby diminishing their water power.^^ If, however, the injury is small and can be adequately compen- sated in damages, equity will not interfere, but will leave the parties to their remedy at law. Nor in such a case will it avail complainant that he has established his right at law.^^' § 808. Restrictions upon the relief. It is also held that to entitle one to an injunction against a nuisance, he must show that he has sustained such a substantial injury by the acts of defendant as would have entitled him to a verdict in an action at law for damages. And when this is not shown, and when it does not appear that defendant's use of the water really is a nuisance, equity will decline to interfere and will leave the question to be determined at law. Nor will a diversion of water in a stream be enjoined when the stream is restored to its old channel by defendant before it enters upon plaintiff's ant had a right during his term to defendants raised the gate of the use the whole of the water in such reservoir, allowing the water to way as he chose, without injury to escape. An injunction was held the common property, refused to to be the proper remedy on the enjoin defendant to fill up his ground that the injury was a pri- channel, or to desist from drawing vate nuisance, and a statute giving water by such channel during his the court jurisdiction in equity in own term of using the mill. all cases of nuisance, the relief was 57 Burnham v. Kempton, 44 N. proper, the remedy at law not H., 78. being plain, adequate and suffi- 58 Ballon V. Inhabitants of Hop- cient. And see Bemis i\ Upham, kinton, 4 Gray, 324. In this case 13 Pick., 169, a case arising under complainants had erected a res- the same statute. ervoir to collect water for their 59 Quackenbush v. Van Riper, 2 mill during the dry season, and Green Ch., 350. 772 INJUNCTIONS. [chap. XIII. land.^^ So the question of relative inconvenir'nce to the parties may be considered upon an application to enjoin a nuisance to water. And when plaintiff's right has not been established at law, and the question of nuisance is not clearly eslablished, and the allowance of an injunction would totally suspend de- fendant's works, thereby causing the greatest injury, the court may properly refuse to interfere.*^^ § 809. Questions of surface water. Questions of much nicety have occurred touching the exercise of the jurisdiction in cases involving the flowage of surface water. For example, when plaintiff is entitled to water flowing from surface springs on defendant's land by natural channels to and upon the land of plaintiff*, defendant may be enjoined from diverting the water in such manner as to prevent its flowing in its natural course.*^- And where a city has under contract with a land owner constructed across his premises, which are beyond the city limits, a ditch for drainage purposes, the city having com- plied with its undertaking in good faith, it may enjoin such land owner from obstructing the ditch.'^'^ So the leading of surface water from one's premises upon those of another, causing overflow and injury to the latter, may be enjoined as a nuisance.*^^ Thus, where defendant, by digging a ditch for that purpose, draws oft' surface water which has accumulated in a natural pond or reservoir upon his own premises, to and upon the premises of plaintiff' adjoining, the injury being con- tinuous in its nature afl'ords sufficient ground for relief by injunction.^^ And the owner of real property may enjoin a «" Elmhirst r. Spencer, 2 Mac. & c-* pettigrewr. Bvansville, 25 Wis., G., 45; Kensit r. Great Eastern R. 223; Foot r. Bronson, 4 Lans., 47; Co., 23 Ch. D., 566, affirmed on ap- Davis r. Londgreen, 8 Neb., 43. See peal, 27 Ch. D., 122. also Pence v. Garrison, 93 Ind., 345. ublic, the right to the relief being founded upon the general inadequacy of the remedy at law.- And a mandatory injune- 1 Green v. Oakes, 17 111., 249; 236, 93 Am. St. Rep., 133; Louis- Craig v. The People, 47 111., 487. ville & N. R. Co. v. M., J. & K. C. 2 Wilder v. De Cou. 26 Minn., 10, R. Co., 124 Ala., 162, 26 So., 895; 1 N. W., 48; Gustafson v Hamm, Whaley i\ Wilson, 112 Ala., 627, 20 56 Minn., 334, 57 N. W., 1054, 22 So., 922; Richi r. Chattanooga L. H. A., 565; Glaessner v. A.-B. B. Brewing Co., 105 Tenn., 651, 58 S. Assn., 100 Mo., 508, 13 S. W., 707; W., 646; Hart v. Buckner, 5 C. C. Canton Cotton W. Co. v. Potts, .-9 A., 1, 54 Fed.. 925; Schewde v. Miss., 31, 10 So., 448; Thompson Heinrich Bros., 29 Wash., 21, 6& V. Maloney, 199 111., 276, 65 N. E., Pac, 362; Gardner v. Stroever, 89 CHAP. XIII.] AGAINST NUISANCE. 781 tion is the proper and, indeed, tlie usual form of relief granted in sucli cases.^ Upon similar grounds the owner of a farm abutting upon a highway is entitled to an injunction to pre- vent the obstruction of the highway and to maintain it in its original condition.^ So a farm owner who suffers a special injury not common to the general public may have an injunc- tion to compel the removal of an obstruction to the highway which materially impairs his right of ingress and egress, al- though he is not entirely deprived of access to his land.^ So the obstruction of a highway which forms the only means of access to plaintiff' 's premises upon which he has erected ex- pensive buildings for manufacturing purposes may be en- joined.^ So the erection of a fence across a traveled highway or the unlawful excavation of a ditch may be enjoined by the town authorities, the liability of the town for damages for in- juries sustained by such obstruction constituting a sufficient interest in the subject-matter to render the town a proper plaintiff' in such case.'^ So a city, village or other municipality, having control of the highways within its limits, may, enjoin the unlawful obstruction of such highways, the remedy by mandatory injunction being regarded as more simple and effective than the remedy at law.^ And when the erection of a Cal., 26, 26 Pac, 618. But see Neshkoro v. Nest, 85 Wis., 126, 55 Packet Co. v. Sorrels, 50 Ark., 468, N. W.,. 176. 8 S. W., 683. And in such cases * De Witt v. Van Schoyk, 110 N. it is immaterial whether the fee to Y., 7, 17 N. E., 425; McQuigg v. the street is in the municipality or Cullins, 56 Ohio St., 649, 47 N. in the abutter. Schewde v. Hein- E., 595. rich Bros., 29 Wash., 21, 69 Pac, s Martin v. Marks, 154 Ind., 549, 362. 57 N. E., 249. 3 Martin v. Marks, 154 Ind., 549, 6 Ross r. Thompson, 78 Ind., 90. 57 N. E., 249; Gardner v. Stroever, 7 Town of Burlington v. Schwarz- 89 Cal., 26, 26 Pas., 618; City of man, 52 Conn., 181; Hygeia M. S. Oshkosh V. M. &. L. W. R. Co., 74 Co. v. Village of Waukesha, 83 Wis., 534, 43 N. W., 489, 17 Am. Wis., 475, 53 N. W., 675. St. Rep., 175; City of Eau Claire s City of Oshkosh v. M. & L. W. V. Matzke, 86 Wis., 291, 56 N. W., R. Co., 74 Wis., 534, 43 N. W., 489. 874, 39 Am. St. Rep., 900; Town of 17 Am. St. Rep., 175; Town of 782 INJUNCTIONS. [CIIAI'. XIH. toll-gate in a highway will operate as a public nuisance, it may be restrained at the suit of an adjoinging property owner who sustains a special injury.-* And the obstruction of . a street, by erecting a house or other building thereon, is a public nuisance which may be restrained in a suit brought by the attorney-general upon behalf of the public,^ "^ or by ad- jacent lot owners who suffer a special injury from the ob- struction.il So equity will interfere to prevent the unauthor- ized raising of the level of a street which will result in de- priving plaintiff, an abutting ov/ner, of his right of ingress and egress.i2 So a property owner may enjoin the mainten- ance of trolley poles in the highway in front of his premises where it is alleged that they are so placed not because of any necessity therefor but for the purpose of annoying plaintiff and injuring his property.!^ And a railroad company which has acquired by condemnation land bordering upon a public highway may enjoin an unauthorized obstruction of the high- way.!^ And the unreasonable obstruction of a public street by backing vans up to the curb in front of defendant's store for the purpose of loading and unloading, thereby impeding free passage along the highway has been held to be a public nuisance which may be enjoined in an action instituted by the attorney-general.i^ And a property owner who suffers special Neshkoro v. Nest, 85 Wis., 126, 55 n Corning v. Lowerre, 6 Johns. N. W., 176; City of Eau Claire r. Ch., 439; Pennsylvania S. V. R. Co. Matzke, 86 Wis., 291, 56 N. W., v. Reading Paper Mills, 149 Pa. St., 874, 39 Am. St. Rep., 900; Metro- 18, 24 Atl., 205. politan City R. Co. v. City of Chi- 12 Schaufele r. Doyle, 86 Cal., 107, cago, 96 111., 620; Chicago, B. & Q. 24 Pac, 834. R. Co. V. City of Quincy, 136 111., " Snyder v. Street R. Co., 105 489, 27 N. E., 232; City of Demo- Iowa, 284, 75 N. W., 179, 41 L. R. polls V. Webb, 87 Ala., 659, 6 So., A., 345. 408; Reed v. Mayor, 92 Ala., 339, 14 Pennsylvania S. V. R. Co. v. 9 So., 161. And see, post, § 1555. Reading Paper Mills, 149 Pa. St., » Snell r. Buresh, 123 111., 151. 18, 24 Atl., 205. 10 Attorney-General r. County i-"- Attorney-General v. Brighton Council of Mayo, (1902) 1 L. R. & H. C. S. Assn., (1900) 1 Ch., 276. Jr., 13. CHAP. XIII.] AGAINST XUISAXCE. 783 damage may enjoin the unlawful obstruction of the street in front of his premises by the assembling in large and dis- orderly crowds of former employees who have gone on a strike.i^ And where public officers are proceeding under claim of right to open a private way across the works of a railway company, equity may interfere by injunction, although the persons injured might await the completion of the road and then recover damages for injuries sustained, where the public officers having charge of the road are proceeding illegally and improperly, and where the interference is necessary to prevent a multiplicity of suits.i'^ § 817. Limitations upon the doctrine. It is to be observed, however, that the rule requiring complainants to show a special injury peculiar to themselves and distinct from the general inconvenience experienced by the public is inflexible.^ ^ "Where, therefore, they fail to show such injury, and own no property fronting upon the street, the relief will be withheld, even though they be residents and taxpayers.!^ And the fact of one's traveling the road frequently and being greatly incon- venienced by its obstruction will not authorize the injunction in the absence of any special injury. 2" So the obstruction of a highway by the erection of a toll-gate, and demanding and receiving toll from persons crossing a bridge in the highway, although a public nuisance, will not be enjoined when plain- tiffs show no special damage or injury to themselves, distinct from that sustained by the public. -^ Moreover proof of special 16 American Steel & Wire Co. v. is McCowan v. Whitesides, 31 Wire Drawers' Union, 90 Fed., 608. Ind., 235; Davis r. Mayor, 4 Kern., 17 Mohawk & H. R. Co. v. Art- 506; Dawson v. St. Paul F. & M. Cher, 6 Paige, 83. Ins. Co., 15 Minn., 136. 18 Corning v. Lowerre, 6 Johns. 20 McCowan v. Whitesides, 31 Ch., 439; Shed v. Hawthorne, 3 Ind., 235. Neb., 179 ; Wellborn v. Davies, 40 21 Shed v. Hawthorne, 3 Neb., Ark., 83; Perkins v. M. & C. T. Co., 179: Perkins v. M. & C. T. Co., 48 48 N. J. Eq., 499, 22 Atl., 180; Gut- N. J. Eq., 499, 22 Atl., 180. tery v. Glenn, 201 111., 275, 66 N. E., 305. 784 INJUNCTIONS. [chap, XIII, injury to complainants will not, of itself, suffice to warrant an injunction, and the court will require, as in the case of tres- pass, that irreparable damage be shown, and where this does not appear the relief will be withheld, even though the persons aggrieved show a special and personal injury,^- Nor will" the injunction issue when the right to the use of the highway or street has not been established at law and is denied and in- volved in great doubt.-^ So, too, the court will refuse to inter- fere where the obstruction is not necessarily a nuisance per se but something which may or may not be, according to cir- cumstances. In such case an injunction will not be allowed until the matter has been determined by a jury.-^ And a supervisor of highways, as such, can have no injunction to restrain obstructions to a highway.-^ § 818. Closing up of street; lease of street; joinder of plain- tiffs. An injunction is the appropriate remedy to prevent the unauthorized obstruction or closing up of a public street, at the suit of adjacent lot owners who have sustained such a special injury as to make them proper parties plaintiff. And it is a sufficient averment of the injury to allege that such obstruction will greatly depreciate the value of their lots and buildings, and will greatly increase the liability of their buildings to fire, and otherwise seriously injure their prop- erty. And it is held to be competent, in such a case, for several different lot owners adjoining the street, although holding their titles in severalty, to join in the bill for in- junction. -« And the obstruction of a sidewalk in front of defendant's store, by loading and unloading goods to such an extent as to interfere seriously with and obstruct passen- 22 Fort V. Groves, 29 Md., 188; 24 Dunning r. Aurora, 40 111., 481; Zabriskie v. Jersey & B. R. Co., 2 Lake View v. Letz, 44 111., 81. Beas., 314; Sargent v. George, 56 25 putnam v. Valentine, 5 Ohio, Vt, 627; Chicago Gen. Ry. Co. v. 187. C, B. & Q. R. Co., 181 111., 605, 54 20 Pettibone v. Hamilton, 40 N. E., 1026. Wis., 402. See also Town of Sul- 2.''. Walts V. Foster, 12 Ore., 247, 7 livan v. Phillips, 110 Ind., 320, 11 Pac, 24, N, E., 300. And see, ante, § 757. ■CHAP. XIII.] AGAINST NUISANCE. 785 gers upon the walk, may be restrained at the suit of one occu- pying premises in the immedate vicinity and who suffers a special injury by such obstruction.^^ So the leasing of a por- tion of a public highway for purely private purposes, as to vendors of produce, may be enjoined as a nuisance at the suit of an adjacent property owner who suffers special damage because of the interference with his right of ingress and egress.2^ So property owners, whose lots abut upon a public street, may restrain private citizens, acting without authority, from altering the grade of a street in such manner as to render plaintift"s improvements less secure and more difficult of access.29 But owners of lots which abut upon the street at points distant from the obstruction in question can not have relief by injunction, since they sustain no special injury different from that to the pubiic.^*^ And in such case the fact that the j)laintiff is compelled to resort to a more circuitous and roundabout route to reach por- tions of the city does not constitute special injury within the meaning of the rule.^^ And where a portion of a high- w^ay other than that upon which plaintiff' abuts has been vacated and has reverted to defendants as abutting owners, plaintiff' can not enjoin them from obstructing their portion of the highway where he has reasonable, though less convenient, access to his property by other streets, since, in such case, the injury which he suft'ers, though greater in degree, is not different in kind from that suffered by the public generally.^^ 27 Callanan v. Gilman, 107 N. Y., Chicago v. Union Building Asso- 360, 14 N. E., 264. ciation, 102 111., 379; Dodge v. 28 Schopp V. City of St. Louis, Pennsylvania R. Co., 43 N. J. Eq., 117 Mo., 131, 22 S: W., 898, 20 L. 351, 11 Atl., 751. And see, ante, R. A., 783. §§ 594, 757. 29 Price V. Knott, 8 Ore., 438. si Guttery v. Glenn, 201 111., 275, 30Billard v. Erhart, 35 Kan.. 611, 66 N. E., 305; City of Chicago r. 12 Pac, 39; Barnum r. Minnesota Union Building Association, 102 T. R. Co., 33 Minn., 365, 23 N. W., 111., 379. 538; Guttery v. Glenn, 201 111., 275, 32 Kinnear Mfg. Co. v. Beatty, 65 66 N. E., 305. See also City of Ohio St., 264, 62 N. E., 341. 50 786 INJUNCTIONS. [chap. XIII. § 819. Diversion of public highway by railroad. The unnecessary diversion of a public highway by a railway com- pany in the construction of its road may be enjoined as a nuisance, although the railway company is by its charter em- powered to change the location of any public road if neces- sary. A power thus conferred is not to be exercised merely because the company find it convenient or desirable to make such diversion, but there must be an actual necessity for its exercise. And in such case, the authorities of the municipality, having by law control of the streets and pub- lic places within its limits, and being liable for their preser- vation and repair, have such a special interest beyond that of the public at large in the subject-matter, as to render them proper parties to invoke the aid of the court.^^ And where a railroad company, in constructing its line in a public highway, has made an embankment and has otherwise unnecessarily obstructed the street, the municipality is en- titled to a mandatory injunction to compel the company to restore the highway to its former condition of usefulness as a condition to using it for the purpose of its road.^^ § 820. Approach to bridge. When the right of the public to the use of a highway is clear and a special injury to plain- tiff is threatened by its obstruction, such injury going to the substance and value of plaintiff's estate and being of a permanent character, equity may properly enjoin. Thus, where plaintiff is the proprietor of a toll-bridge, the approach to which is by a public highway, the obstruction of which must necessarily result in serious injury to the value of plaintiff's property as a toll-bridge, the injury being peculiar and not to be compensated adequately by an action at law, and being permanent in its nature, a proper case is presented 33 Easton & A. R. Co. v. Inhabi- 34 city of Oshkosh v. M. & L. W. tants of Greenwich, 10 C. E. Green, R. Co., 74 Wis., 534, 43 N. W., 565, affirming S. C, 9 C. E. Green, 489 17 Am. St. Rep., 175. 217. CHAP. XIII.] AGAINST NUISANCE. 787 for relief by injimction.^^ And the obstruction of a public road leading to plaintiff's ferry may be enjoined as a nui- sancers go a nuisance to a public highway by cutting away the timbers supporting a roadway or approach to a bridge affords sufficient ground for the interposition of equity by injunction."^''' But a city can not maintain a bill to restrain prison convicts from working upon the streets upon the alleged ground that such work is a violation of a city oriji- nance and injurious to the public peace and good order.^^ § 821. Abandonment of highway ; acquiescence in obstruc- tion. Although the jurisdiction of equity in restraint of obstructions to roads and highways, by injunction in behalf of the people, is well established, it will not be exercised where the highway has been for a long period abandoned and disused, and where it does not appear that the public will suffer any inconvenience, or that public travel will be prevented or seriously incommoded; and this is especially true when the attorney-general and the relator in the in- formation, with full knowledge of the facts, have permitted the work to proceed to partial completion without objec- tion.39 §822. Taking up pavements. The taking up of pave- ments in a city for the purpose of laying gas pipes is not regarded as such a nuisance as to warrant relief by injunc- tion, the inconvenience to the public being only temporary in its duration.'**' And this is true, even though the act in question is bein^ done by an unincorporated gas company."*^ 35 Keystone Bridge Company v. ^o Attorney-General v. Sheffield Summers, 13 West Va., 476. Gas Consumers Co., 3 DeGex, M. 36 Draper y. Mackey, 35 Ark., 497. & G., 304; Attorney-General c. 37 Attorney-General v. Forbes, 2 Cambridge Consumers Gas Co., L.. Myl. & Cr., 123. R. 4 Ch., 71, reversing S. C, L. R. 38 Ward V. City of Little Rock, 41 6 Eq., 282. Ark., 526. 4i Attorney-General v. Cambridge 39 Attorney-General v. Brown, 9 Consumers Gas Co.. L. R. 4 Ch., 71, C. E. Green, 89. reversing S. C, L. R. 6 Eq., 282. 788 INJUNCTIONS. [chap. XIII. § 823. Existence of legal remedy a bar to relief. The €xistence of a legal remedy for the prevention or re- moval of an obstruction to a highway, is a material circumstance to be considered in cases of the character under discussion. And upon an information filed by the attorney-general of a state at the relation of the surveyors of highways of a town, seeking to restrain a manufacturing corporation from obstructing a public highway by laying and operating thereon a private railway track, it was held that no such obstruction to the rights of the public was dis- 'Closed as to justify the extraordinary remedy of an injunc- tion, the surveyors of highways being empowered by law to prevent or remove such obstruction.'*^ § 824. Projection in building. To warrant the exercise •of the extraordinary judisdiction of equity in cases of ob- structions to streets, some real and substantial injury must be shown as the result of the act which it is sought to ■enjoin. Equity will not, therefore, enjoin an encroachment upon a public highway or street hy a projection in a build- ing erected by defendants when no substantial injury is shown, and no real obstruction to the use of the street.^^ And a city may be enjoined from destroying a structure encroaching upon a street, Avhen such structure is not a nuisance per se, and when the question of nuisance has never been determined.^^ But plaintiffs, who have purchased lots upon a street relying upon the grantor's representations that the street would be extended as shown by a plat submit- ted, may enjoin a defendant claiming under the same grantor from obstructing the proposed extension by the erection of a building.-*^ 42 Attorney-General r. Bay State ** Everett r. Marquette, 53 Mich , Brick Co., 115 Mass., 431. 450, 19 N. W., 140. 43 City of Philadelphia's Appeal, 4.-, Karrer r. Berry, 44 Mich., 391, 78 Pa. St., 33; Gray v. Baynarrt, 6 N. W., 853. 5 Del. Ch., 499. CHAP. XIII.] AGAINST NUISANCE. 789 § 825. Discharge of sewage as between municipal corpo- fations. A municipal corporation may be enjoined from discliarging its sewage into the sewers of another munici- pality, such an injury being regarded as of so irreparable a nature as to warrant preventive relief in equity. It is proper, however, in such a case, to order that no steps be taken to enforce the injunction for a sufficient period ta enable defendants to construct suitable works to discharge- their sewage otherwise than into the sewers of plaintiffs.^^ And property owners in a city, who are entitled to the use: of an underground drain to carry off the sewage from their premises, may enjoin the destruction of such drain."*" § 825 a. Erection of telegraph and telephone lines. The construction of a line of telegraph poles and wires in front of plaintiff's premises in a city, when author- ized by law, does not constitute a private nuisance of so. irreparable a nature as to warrant relief by injunction."*^ So an injunction has been refused at the suit of a lot owner seeking to restrain a telephone company from stretching its wires in a street in front of plaintiff's prem- ises, the question of plaintiff' 's right being doubtful and de- fendant claiming to act under legal authority.^'-^ Where,, however, a telephone company, without authority anda against the remonstrance of plaintiff", enters upon his prem- ises and erects its poles thereon, it may be restrained, and the injunction may be granted in the mandatory form to compel the removal of the poles.^*^ § 825 h. Bridging of highway. Since a city or other municipality ordinarily has no power to grant the use of its; 46 Commissioners of Kingstown *'■> Roake i\ American T. Co., 41 V. Blackrock Commissioners, L. R. N. J. Bq., 35, 2 Atl., 618. See also 10 Eq., 160. New York & N. J. T. Co. v. East 47 Masonic Temple Association Orange, 42 N. J. Eq., 490, 8 All., V. Harris, 79 Me., 250, 9 Atl., 737. 289. 48 Hewett ('. Western Union T. '" Broome r. New York & N. J. Co., 4 Mackey, 424. And see, ante, T. Co., 42 N. J. Eq., 141, 7 Atl., 851. § 597 /. 790 INJUNCTIONS. [chap. xiii. streets for purely private purposes, the construction, under an ordinance, of a bridge over a public highway connect- ing buildings located upon opposite sides constitutes a public nuisance, which may be abated by injunction in an action brought by adjoining or neighboring property owners who suffer a special and peculiar injury therefrom.^^ § 825 c. City market place in highway. The maintenance by a city of a public market place upon a public highway ad- joining plaintiff' 's premises, resulting in noise and dirt and in foul and disagreeable odors, and causing great discomfort to the plaintiff, may be enjoined as a nuisance by one who is specially damaged thereby.^^ 51 Field V. Barling, 149 111., 556, 49 Atl., 629, 52 L. R. A., 409, 86 37 N. E., 850, 24 L. R. A., 406; Am. St. Rep., 441. Townsend v. Epstein, 93 Md., 537, 52 city of Richmond v. Smith, 148 Ind., 294, 47 N. E., 630. CHAP. XIII.] AGAINST NUISANCE. 791 VI. Railways. § 826. Construction of railway through city. 827. Plaintiff must show special injury. 828. Construction of railway in city not a nuisance per se; when relief granted. 829. Street railways; electric street railway. 830. Injunction conditioned on condemnation proceedings. 831. Opening street through railway embankment. 832. Construction of road for individual benefit. § 826. Construction of railway throug^h city. The interest in and use of public streets being publici juris, their appropriation to private or corporate use in the construc- tion of a railway, without authority of law, and the ob- struction thus caused to travel, constitute a public nui- sance, which may be enjoined in behalf of the people.^ A city, however, in its corporate capacity, has not such a proprietary interest or right in the streets and public squares over which a railway is built as to entitle it to an injunction re- straining the erection of the road.^ And the construction of a railroad through a city by authority of the common council, will not be enjoined as a nuisance to adjacent prop- erty owners, the right of passage not being obstructed to the public for other purposes.-^ § 827. Plaintiff must show special injury. We have already seen that to warrant relief in equity by a private citizen against a public nuisance, some special injury must be shown aside from the general inconvenience to the pub- lic.^ In other words, damage sustained in common by all the persons of a large class furnishes no foundation for relief on the part of an individual of that class. The rule 1 People V. New York & H. R. Co., 2 Milwaukee v. Milwaukee & B. 45 Barb., 73; Attorney-General v. R. Co., 7 Wis., 85. Greenville & H. R. Co., 59 N. J. 3 Drake r. Hudson River R. Co., Eq., 372, 46 Atl., 638. 7 Barb., 508. 4 § 762, ante. 792 INJUXCTIOXS. [chap. XIII. applies with equal force in the case of railways, and the construction of a street railway will not be enjoined at the suit of an adjacent lot owner, who simply owns up to the line of the street, and over whose land the road does not pass, where no special damage is shown to the complainant different from that to all the property owners.^ So when plaintiff seeks to enjoin a railway company from obstruct- ing a street in a city, but his lands do not abut upon that part of the street where the alleged obstruction exists, he will not be allowed relief; since the injury or nuisance, if any, is to the public at large, and plaintiff' suffering no injury different in kind from that sustained by the public is not entitled to an injunction.^ § 828. Construction of railway in city not a nuisance per se; when relief granted. With regard to the interference of equity in restraint of the construction and operation of railroads, it is to be noticed in the first place that the con- struction of such roads and the running of cars through the streets of a city or village do not, per se, constitute such a nuisance as will be enjoined in the absence of proof that the railroad is a nuisance in fact.''' Nor will a general averment that the road is a flagrant nuisance suffice in the ab- sence of facts proving it to be such.^ And the fact that the change in the mode of travel thus introduced in the street or thoroughfare may have had an injurious effect upon business or rents in such thoroughfare affords no ground for relief.'* And where a railroad is authorized by the terms of its charter to construct its road in a particular manner, or through a par- s Osborne v. Brooklyn, 5 Blatch., Long Island R. Co., 13 Barb., 646; 366. Bell V. Ohio & P. R. Co., 25 Pa. St., Shaubut v. St. Paul & S. C. R. 161. Co., 21 Minn., .502; Gundlach r. n Hentz /;. Long Island R. Co., IS Hamm, 62 Minn., 42, 64 N. W., Barb., 646. 50. And see, a7ite, § 757. '•' Lexington & O. R. Co. v. Ap- T Lexington & 0. R. Co. r. Ap- plegate, 8 Dana, 289. plegate, 8 Dana, 289; Hentz v. CHAP. XIII.] AGAINST NUISANCE. 795 ticular street, such construction, being authorized by law is not a nuisance and will not be enjoined.^'^ Nor does the mere use of railway tracks across an alley in the rear of plaintiff's premises constitute such an injury as to warrant relief by injunction against the use of such tracks." Even where the road is being built without authority of law, it will not be enjoined at the suit of one who owns no real estate over or adjoining which it is to pass, and who will not be specially injured by its construction. i- But where the plaintiff' owns real estate abutting upon a public street or alley and will be subjected to a special injury differing in kind from that suffered by the public, such as the impair- ment of his easement in the highway as a means of ingress and egress to his property, resulting in serious and sub- stantial injury thereto, the rule is well settled that an injunc- tion will lie to restrain the illegal and unauthorized con- struction of a railroad in the highway, as, for example, where the work is proceeding under an ordinance or license which the municipality has no power to grant.^^ And the fact that 10 Currier v. West R. Co., 6 Co., 142 Mo., 172, 43 S. W., 629, Blatch., 487; McFarland v. Orange 64 Am. St. Rep., 551; Corby v. & N. H. C. R. Co., 2 Beas., 17. C, R. I. & P. R. Co., 150 Mo., 457, 11 Baltimore & 0. R. Co. v. 52 S. W., 282. In the first of these Strauss, 37 Md., 237. cases the city had no power, un- 1- Currier v. West R. Co., 6 der its charter, to grant to a rail- Blatch., 487; Davis v. Mayor, 4 road the right to operate in a pub- Kern., 506. lie highway. In the Gustafson, 13 Louisville & N. R, Co. v. M., Glaessner and Richi cases the or- J. & K. C. R. Co., 124 Ala., 162, 26 dinances were void because they So., 895; Gustafson t\ Hamm, 56 attempted to give the right to con- Minn., 334, 57 N. W., 1054, 22 L. R. struct a railroad in the streets for A., 565; Glaessner t;. A.-B. B. Assn., purely private purposes. In the 100 Mo., 508, 13 S. W., 707; Richi other cases the invalidity arose r. Chattanooga Brewing Company, from the fact that they attempted 105 Tenn., 651, 58 S. W. 646; to grant the exclusive right to the Knapp, Stout & Co. v. St. L. T. R. use of the highway. For a further Co., 126 Mo., 26, 28 S. W., 627; discussion of the subject of in- Schulenburg & B. L. Co. v. St. L., junctions against rairoads in pub- K. & N. R. Co., 129 Mo., 455, 31 S. lie highways, see ante, § 589. W.. 796; Sherlock v. K. C. B. R. 794 INJUNCTIONS. [chap. XIll. the plaintiff is also operating a railroad in the highway under such an invalid ordinance will not justify the defendant in imposing such additional nuisance.^ ^ § 829. Street railways ; electric street railway. It is also held that the construction of a street railway through the streets of a city, if the road is properly laid and operated, is not, per se, a public nuisance, since it is not an obstruction to the ordinary use of a street.^ ^ The construction, however, of a street railway through the streets of a city without authority of law has been treated as a nuisance. But when such construction is sought to be enjoined by another railway company, the relief will not be allowed except in so far as the plaintiff company shows that it sustains a special and peculiar injury, and the relief will be denied as to any injury which it sustains in com- mon with the general public. To the extent, therefore, that it is attempted without authority of law to construct a street railway which will interfere with plaintiff' 's line of road in actual operation or in course of construction, de- fendant may be enjoined, but no further.!^ And a city which, under its charter, has control over the streets and highways within its limits, may enjoin the unauthorized laying of the tracks of a street railway company in its high- ways, as, for example, where the work is proceeding under an ordinance which is invalid for want of the necessary publication required by law.^"^ And an abutting owner who suffers a special injury may restrain the tearing up of the highway adjacent to his premises for the purpose of con- structing an electric street railway, upon the ground that the ordinance under which the work is being done is illegal.^** 1* Louisville & N. R. Co. v. M., Denver City R. Co., 2 Col., 673. J. & K. C. R. Co., 124 Ala., 162, it Metropolitan City R. Co. v. Cily 26 So., 895. of Chicago, 96 111., 620. 15 Coast Line R. Co. r. Cohen, is Hart v. Buckner, 5 C. C. A., 1, 50 Ga., 4.51. 54 Fed., 925. Upon the general 10 Denver & Swansea R. Co. v. subject of injunctions against elec- CHAP. XIII.] AGAINST NUISANCE. 795 § 830. Injunction conditioned on condemnation proceed- ings. Where the facts as found by the court upon the hearing show that the operation of defendant's railroad in front of plaintiff's premises is in fact a nuisance, and de- fendant has made no compensation to plaintiff for the damages sustained, and has taken no proceedings for that purpose, it is proper to grant an injunction conditionally against the operation of the road, the injunction to issue if defendant does not forthwith institute and promptly carry forward proceedings for condemnation.^^ § 831. Opening street through railway embankment. When the corporate authorities of a city are proceeding to open a street through the embankment of a railway upon the ground that it constitutes a nuisance by obstructing the street, and the railway company, relying upon twenty years' possession, enjoins the municipal authorities from proceeding, the right of the city being doubtful, it is not error to continue the injunction until a hearing upon the merits. The question being properly triable by a jury, a court of equity will not assume its functions and deside the issue in advance of a trial at law.^o § 832. Construction of road for individual benefit. Where one under corrtract with a railroad company which has failed to construct its road has gone on with the con- struction of a portion of the route for his own benefit, he may be restrained on the application of owners of land through which the road passes. And the fact that com- plainants in the bill in equity are plaintiffs in an action at law then pending against other parties, to recover damages for past trespasses thus incurred, affords no defense to the bill.2i trie railways in highways, see, -" Mayor v. Georgia R. & B. Co., ante. § 589 b. 40 Ga., 471. 10 Harrington r. St. Paul & S. C. '^i Stewart & Foltz's Appeal, 56 R. Co., 17 Minn.. 215. Pa. St.. 413. 796 INJUNCTIONS. [chap. XIII. VII. Bridges. § 833. Ereciion cf bridge, when enjoined; jurisdiction of United States courts. 834. Illustrations of the relief. 835. When injunction refused. 836. Bridge in city, question of plaintiff's title. 837. Effect of acquiescence in construction. 838. Laying tramway over bridge enjoined. §833. Erection of bridge, when enjoined; jurisdiction of United States courts. The erection of a bridge over a large navigable river in such manner as to obstruct seriously the navigation of the river is a public nuisance which will be en- joined in the courts of the United States, even though the erection be authorized by the legislature of a state.^ And in such case the original jurisdiction of the Supreme Court of the United States will be exercised in behalf of a state bor- dering on a river, on the ground that the state, as proprie- tor of its public works, suffers a special injury from day to day by the erection of the bridge, which injury is not remedi- able at law and not susceptible of computation.^ So the erec- tion of a bridge and placing obstructions across a navigable river in such manner as to impede its free use and naviga- 1 Pennsylvania v. Wheeling & B. thorized by act of Congress, the in- B. Co., 13 How., 518; Baird t'. Shore junction was dissolved. Line R. Co., 6 Blatch., 276; Hatch -'Pennsylvania r. Wheeling & B. V. Wallamet L B. Co., 7 Sawy., 127; B. Co., 13 How. 518, Taney, C. J., S. C, 6 Fed., 326. See S. C, 27 and Daniel, J., dissenting. But Fed., 673. "But see Cardwell v. the relief has been denied where American Bridge Co., 113 U. S., the corporate authorities of a city 205, 5 Sup. Ct. Rep., 423. In Baird sought to restrain the erection r. Shore Line R. Co., 6 Blatch., of an aqueduct causing an ob- 276, complainant came within the struction to a navigable river, on rule requiring special injury to be the ground that they suffered no shown, he having vessels engaged special injury to themselves differ- in the navigation of the river. But ent from the general injury to the the erection being afterward au- public. Georgetown v. Alexandria^. 12 Pet., 91. C;HAP. XIII.] AGAINST NUISANCE. 797 tion may be enjoined at the suit of a riparian owner.-^ But a riparian proprietor will not be allowed to restrain the erection of a bridge by authority of a state legislature, where the injury which he would sustain would be conse- •quential- only, the bridge being a matter of great public convenience, a similar one having been in use for many years over the stream a short distance above.'^ Nor will the jurisdiction be exercised upon a mere possibility of injury,^ nor unless the proof clearly shows that the bridge would be an obstruction to the navigation of the river.^ And the injunction will not be granted when complainant's right is doubtful and when it rests upon questions which are un- settled, and when no irreparable injury will ensue from a refusal to enjoin, since an important public work should not be enjoined unless the right to be protected is clear and without serious doubtJ §834. Illustrations of the relief. Where complainant's right to the free navigation of a river is clear, and the €Ourt is in doubt whether the proposed bridge would be a material obstruction to navigation, a temporary injunction may be granted to prevent the great expenditure and loss which would result to the defendants if they were allowed to go on and erect the bridge before a hearing, and were then to be finally enjoined.* And the building of a bridge 3 Charleston & S. Ry. v. John- son R. B. Co., 4 Blatch., 74, infra. son, 73 Ga., 306, 7 Pennsylvania R. Co. r. New ■i Gilman v. Philadelphia, 3 Wal., York & L. B. R. Co., 8 C. E. Green, '713; the case distinguished from 157. the Wheeling Bridge case, supra. ^ Silliman v. Hudson R. B. Co., 5 Mohawk Bridge Co. v. Utica & 4 Blatch., 74. This case on final S. R. R. Co., 6 Paige, 554; North- hearing is reported in 4 Blatch., ern Pacific R. Co. r. Barnesville & 395, before Nelson and Hall, JJ., M. R. Co., 2 McCrary, 224; S. C, 4 and the judges being divided in Ped., 172; City of St. Louis v. The opinion as to whether the injunc- Knapp, Stout & Co. Company, 2 tion should be made perpetual, it McCrary, 516; S. C, 6 Fed., 221. was so certified to the Supreme 6 Hutchinson r. Thompson, 9 Court of the United States, and Ohio, 52. But see Silliman v. Hud- upon the points so certified the 798 INJUNCTIONS. [chap. XIII. over a navigable river, without authority of law, in such manner as to entirely obstruct the navigation of the river, is such a public nuisance as to warrant relief by injunction. And a riparian owner who suffers a special injury thereby in the use of a warehouse upon his premises, which is used in connection with the navigation of the river, is entitled to restrain the building of such bridge without a draw and in such manner as to obstruct navigation.^ So the construc- tion of a bridge without lawful authority over a stream in the line of a publi* highway, in such manner as to perma- nently interfere with and deprive plaintiffs of the lawful use and enjoyment of their mill property adjacent thereto, is such a nuisance of a public nature as to justify an injunc- tion in behalf of plaintiffs who show themselves to be pecu- liarly and specially injured by such erection.^^ § 835. When injunction refused. When a bridge over a navigable water is being built in conformity with the con- stitution and laws of the United States, and the state in which it is being erected, has sanctioned its construction in the manner provided by the laws of the United States, it will not be regarded as a public nuisance, nor will its con- struction be interfered with by injunction.!^ Nor will an interlocutory injunction be granted to restrain the building of a bridge over a navigable river when it is not shown that it will materially obstruct or hinder commerce upon the judges of that court were also » Hickok c. Hine, 23 Ohio St., equally divided. See 1 Black, 582. 523; Hatch v. Wallamet Iron B. The court below then decreed the Co., 7 Sawy., 127; S. C, 6 Fed., dismissal of the bills, from which 326. See S. C, 27 Fed., 673. But decrees appeals were had to the see Cardwell r. American Bridge Supreme Court of the United States Co., 113 U. S., 205, 5 Sup. Ct. Rep., and upon the hearing of the ap- 423. peals the judges of that court were i" Potter r. Village of Menasha, again equally divided. See 2 Wal., 30 Wis., 492. 403. As the result of this division " Miller r. Mayor, 13 Blatch., the decrees of the circuit court 469. were affirmed. CHAP. XIII.] AGAINST NUISANCE. 791) river, or cause injury to navigatian, such a case not being one of an interference with commerce among the states which will justify e(iuity in prohibiting the erection. ^- § 836. Bridge in city, question of plaintiff's title. Equity will not enjoin the construction by municipal officers, under legislative authority, of a bridge over a branch or chan- nel of tide water in a city, upon the complaint of a riparian owner having no title to the land covered by the water over which the bridge is being erected, and whose only claim of right to the water is the general right or ease- ment of navigation which he shares in common with the public.^ ^ But where plaintiffs have title derived from the state to the land under the water over which a bridge is to be erected, they may enjoin the authorities of a city from erecting such bridge without having made com- pensation or taken the necessary proceedings for condemn- ing the land.^^ § 837. Effect of acquiescence in construction. The doc- trine of acquiescence as a bar or estoppel to equitable relief is applicable to the class of cases under discussion, as indeed to most cases in which the extraordinary aid of equity is invoked. And where the defendant, under a franchise granted by the legislature, has been engaged in the construction of a bridge for more than a year, and until the work is almost completed, and has made and in- curred large expenditures, with full knowledge upon the part of the persons who might be affected by such bridge, such acquiescence and delay may prevent relief by injunc- tion til limine. And while as against the public, repre- sented by the attorney-general seeking to enjoin a nuisance, a stronger case of delay or acquiescence is required to pre- 12 Silliman v. Troy Bridge Co., ^^ Morris Canal & B. Co. r. May- 11 Blatch., 274. or. 11 C. E. Green, 294. i-' Sugar Refining Co. v. Mayor. 11 C. E. Green, 247. 800 IXJUXCTIOXS. [CiIAP. XIII. vent relief than when a private right alone is in dispute, the doctrine of acquiescence may yet be applied in such a case, even as against the public.^^ So when an alleged pub- lic nuisance which it is sought to enjoin consists in the erec- tion by a railway company of a bridge over a river, and defendant, acting in good faith and under a belief that it has sufficient legislative authority, has expended a large sum of money in its enterprise, and has been permitted to go on without objection for nearly a year, and until the work has almost reached completion, an injunction will be refused even upon an information filed in behalf of the state, and the state will be left to seek a remedy at law.^^ § 838. Laying tramway over bridge enjoined. The laying of a tramway over a bridge for the purpose of transporting coals may be enjoined, when defendants, in an action at law brought against them for damages, have entered into an undertaking not to repeat the act in question.!^ 13 Attorney-General v. New York & B. B. R. Co., 12 C. E. Green, 1. & L. B. R. Co., 9 C. E. Green, 49. i" North Canal Co. v. Ynisarwed 16 Attorney-General v. Delaware Co., L. R. 10 Ch., 450. CHAP. XIII.] AGAINST NUISANCE. 801 VIII. Mill-Dams. § 839. The rule stated and illustrated; limitations upon the doctrine. 840. Value of property not a test; right need not be established by action at law. 841. Rebuilding of dam; destruction of dam. 842. Dissolution; allegation should be specific; verdicts against mill owner. 843. Erection of dam prohibited by law. 844. The general doctrine further illustrated. 845. The same. 846. Writ for removal of dam not enjoined. 847. Adverse user by defendants; laches of plaintiff. 847a. Injunction until payment of award. § 839. The rule stated and illustrated; limitations upon the doctrine. The erection of a mill-dam in such manner that the inundation caused by the back flowage of the water lessens the value of complainant's land, destroys his timber and imperils the health of the neighborhood, will be enjoined.^ So if a dam is erected below complainant's land, and so near that the back flowage covers it and prevents its use, equity will interfere.- So, too, the threatened destruction of a mill-dam and the drawing off of the water are injuries over which equity will exercise its restraining jurisdiction where it is made to appear that irreparable mischief would otherwise result. And it is to be observed that the juris- diction is exercised, not in derogation of the remedy at law, 1 White 17. Forbes, Walk. (Mich.), edy might have been had at law 112; Whitfield v. Rogers, 26 Miss., as for a nuisance, the court hold- 84. And see Robinson v. Byron, 1 ing that under a general statute Bro. C. C, 588; Troe v. Larson, 84 authorizing courts of equity to Iowa, 649, 51 N. W., 179, 35 Am. St. hear and determine any matter Rep., 336. touching waste or nuisance in - Miner r. Nichols, 24 R. I., 199, which there was not a plain and 52 Atl., 893; Bemis v. Upham, 13 adequate remedy at law, equity was Pick., 169; Stone v. Roscommon entitled to jurisdiction in the case. Lumber Co., 59 Mich., 24, 26 N. the legal remedy being insuflScient. W., 216. And this, even though Bemis v. Upham, 13 Pick., 169. under a statute of the state a rem- 51 802 INJUNCTIONS. [chap, xiii.^ but rather because the legal remedy is insufficient, and be- cause of the danger of irreparable mischief before it can be applied.^ It is therefore proper to retain an interlocutory injunction restraining the threatened erection of a mill- dam, until the determination of an issue to be tried by a jury as to whether the erection of the dam will probably endan- ger the health of the neighborhood, and whether plaintiff will be thereby materially injured in the enjoyment of hi& property and in the health of himself and family."* And an injunction will lie to prevent the damming up of a bayou or natural outlet, which serves as a drain to plaintiff's land, the result of which would greatly injure plaintiff by flood- ing his land.^ So the maintenance of a dam which results in the accumulation of decaying vegetable matter which endangers the life and health of the plaintiff and his family will be enjoined.^ But to justify relief against overflows resulting from dams, it must appear that the plaintiff' suf- fers injury as the result of the dam which otherwise he would ■ not suffer. Where, therefore, he is unable to show that lands of his are submerged in consequence of the nuisance com- plained of, which, without it, would not be submerged, the relief should be denied.''' Nor will the injunction be granted in such case on the ground that the water accumulated by the dam will become foul and stagnant, thereby endangering the health of the neighborhood, where such injury does not in fact exist and is merel}^ apprehended.^ § 840. Value of property not a test ; right need not be established by action at law. Where an injunc- tion is sought to prevent interference with the enjoy- ment of property by the erection of a dam, equity will not •■! Winnlpiseogee Lake Co. v. o Richards v. Daugherty, 133 Worster, 29 N. H., 433, and cases A.la., 569, 31 So., 934. cited. " Esson v. Wattier, 25 Ore., 7, 34 4 Ogletree v. McQuaggs, 67 Ala., Pac, 756. 580. ^ Id- ^ Learned v. Hunt, 63 Miss., 373. CHAP. XIII.] AGAIXST NUISAXCE. 803 be governed by the mere value of the property.^ Nor will the relief be denied because complainant's title has not been established in an action at law, since the modern doctrine of courts of equity in this respect is much more liberal than the ancient, and the rule requiring the right to be first established at law prevails only in cases where the right itself is in dispute or is doubtful.^ *5 Therefore a bill to enjoin the further construction and maintenance of a mill-dam is not demurrable for want of equity in that it contains no allega- tions of complainant's right having been established in a suit at law.^^ §841. Rebuilding of dam; destruction of dam. The rebuilding of a dam will be enjoined where, before it was swept a^vay, its stagnant waters had proved so injurious to the neighborhood that an adjacent owner had recovered damages for the injury sustained.^ 2 And a municipal cor- poration may be restrained from destroying without trial or notice, a mill-dam authorized by statute, on a stream declared to be a public highway, on the ground that it is a nuisance. The injury threatened by the corporate authorities being permanent to the freehold, under a claim of right which is unfounded, and it being doubtful whether adequate compensation can be made in damages, an injunction is the proper remedy.^ ^ § 842. Dissolution ; allegation should be specific ; verdicts against mill owner. A temporary injunction, granted ex parte at the suit of the owner of a mill-dam, to restrain a 9 White V. Forbes, Walk, though it would appear to be con- (Mich.), 112. tray to the weight of authority, 10 Sprague v. Rhodes, 4 R. I., that such a bill is not demurrable 301; White v. Forbes, Walk, in failing to state a case of irre- (Mich.), 112. And see, ante, §§ parable mischief. 698, 740. 12 Miller v. Truehart, 4 Leigh. 11 Sprague v. Rhodes, 4 R. I,, 569. See also De Vaughn v. Minor, 301; Switzer v. McCulloch, 76 Va., 77 Ga., 809, 1 S. E., 433. 777. And it is also held in 13 Clark v. Mayor, 13 Barb., 32. Sprague v. Rhodes, 4 R. I., 301, al- 804 INJUNCTIONS. [chap. XIII. town from opening certain sluice-ways in the dam, will be dis- solved when it appears that its dissolution will not result in any loss to complainant which can not be repaired in dam- ages, or that the dissolution will not affect the cause in a trial on the merits.^^ And a mere general and indefinite sug- gestion of irreparable mischief is not sufficient to warrant the interposition of equity, but there must be an allegation of some distinct and sufficient ground of such mischief.^^ And the fact of two verdicts having been recovered at law against a mill owner for keeping his dam too high, will not authorize an injunction restraining him from re-building it at all.i« § 843. Erection of dam prohibited by law. Where the laws of a state expressly prohibit the erection of any dam or other obstruction over a navigable river, an injunc- tion will be allowed to prevent the erection v/ithout legis- lative authority of a dam in such manner as to obstruct the free use and navigation of the river. And in such case, a company incorporated for the improvement of the river, which suffers a damage in the loss of tolls by the obstruction, sustains such a peculiar and special injurj^ as to render it a proper plaintiff to institute the action. i" §844. The general doctrine further illustrated. Equity will not, however, enjoin the erection of a dam and the overflowing of land upon the ground of injury to the public health, upon the application of private citizens who show no injury to their health by the proposed erection, but only an injury to their lands.^^ Nor will the continuance of a mill-dam be restrained upon the ground that it renders plaintiff' 's residence unhealthy, when it does not clearly appear that the injury is irreparable, or that it can not 14 Wing r. Fairhaven, 8 Cush., i<5 id. 363. 1" Wisconsin River Improvement I'-Talley r. Tyree, 2 Rob. (Va.), Co. v. Lyons, 30 Wis., 61. 500. 18 Vail v. Mix, 74 111., 127. CHAr. XIII.] AGAINST NUISANCE. 805 be compensated in damages.^ '-^ And when it is sought to restrain the construction of a dam over a navigable river upon the ground that it will obstruct navigation, the work being in the nature of a public improvement authorized by an act of legislature, equity will not enjoin its construction merely upon theoretical opinions as to the injury, or upon the theory of plaintiff's bill that no dam can be constructed at the place in question without obstructing the navigation of the river.-o Nor will the construction of a dam over a river be enjoined upon the ground that the statute author- izing its construction does not provide compensation for lands which may be overflowed, when it is not shown that any lands will be overflowed as the result of such construc- tion.21 And when the alleged nuisance consists in the erec- tion of a dam below plaintiff's mill in such manner as to back up the water and to obstruct the wheel of plaintiff's mill, an injunction will be withheld when a full and ade- quate legal remedy is provided by the laws of the state.22 And an injunction against the erection of a mill-dam has been refused when its eft'ect would be to work a forfeiture of the charter and franchise under which defendants were operating.23 § 845. The same. Upon a bill charging that defendant by erecting a dam across his stream has caused the water to overflow plaintift"s land situated farther up the stream, it is improper to enjoin defendant in limine from raising his dam higher when no such intention is charged or shown upon the part of defendant. Nor should the court, by its interlocutory injunction in such case, prevent defendant from protecting his dam from destruction by high water or otherwise, when 19 Thomas v. Calhoun, 58 Miss., 22 Burnett v. Nicholson, 72 N. 80. C, 334. 20 Woodman v. Kilbourn Manu- 23 Ottaquechee W. Co. v. Newton, facturing Co., 1 Bissell, 546. 57 Vt., 451. 21 State V. City of Eau Claire, 40 Wis, 533. 806 INJUNCTIONS. [CIIAP. XIII. it is not shown that he is insolvent, or that plaintiff is likely to sustain an injury which would be irreparable in dam- ages.-- And it would seem that a preliminary injunction restraining the erection of a dam in such manner as to overflow plaintiff's land should not be so framed as to alter the condition of defendant's dam at the time of filing the bill of complaint, but should be limited in its operation to restraining any further erection or obstruction.-'"' § 846. Writ for removal of dam not enjoined. When the owner of a mill-dam seeks to enjoin a sheriff' from exe- cuting a Avrit to remove so much of the dam as may be necessary to prevent the water from flooding certain prem- ises, such writ being issued in pursuance of a prior judg- ment against the former owners of the dam finding it to be a nuisance and directing the removal of so much of the dam by the sheriff' as may be necessary for the pur- pose named, it is not error to refuse a preliminary in- junction against the enforcement of the writ.-*' And an injunction will not lie to restrain municipal authorities from abating a mill-dam as a nuisance, when they have full au- thority so to do; especially when, before the filing of the bill, the dam is swept away by a flood, there being nothing left for the court to enjoin.-" § 847. Adverse user by defendants ; laches of plaintiff. To a bill by land owners seeking to restrain the erec- tion of a mill-dam in such manner as to flow back the water upon plaintiff's land, it is a sufficient answer that de- fendants and their grantors had for fifty years prior thereto continuously enjoyed and used the right to flow the water back upon plaintiff"s lands by such a niill-daui, such user being adverse and under a claim of ownership.-^ Nor will an injunction bo allowed to restrain the overflow and settling ^■« Wheeler v. Steele, 50 Ga., 34. -• Mayor r. Mitchell, 79 Ga., 807, i-- Tatem v. Gilpin, 1 Del. Ch., 13. 5 S. E., 201. 20 Akin /'. Davis, 14 Kan., 143. 2s Ogle r. Dill. 55 Inch, 130. CHAP. XIII.] AGAINST XUISAXCE. 807 back of water by the erection of a dam where the person aggrieved has for a long period lain upon his rights and permitted the dam to be several times rebuilt without ob- jection, since he has been guilty of such laches as to entitle him to no consideration in a court of equity.^'* § 847 a. Injunction until payment of awaxd. Where an award has been made to complainant for damages resulting in injury to his land arising from the erection of a dam and the overflowing of the water, the use and maintenance of the dam may be enjoined until the amount of the award is paid.3^ 29 Sheldon r. Rockwell, 9 Wis., ^^o Wilmington Water Power Co. 166, a delay of nineteen years; v. Evans, 166 111., 548, 46 N. E., Cobb V. Smith, 16 Wis., 661, a de- 1083; Ackerman v. Horicon Iron lay of ten years. Mfg. Co., 16 Wis., 151. CHAPTER XIV. OF INJUNCTIONS FOR THE PROTECTION OF EASEMENTS. I. Leading Principles § 848 II. Easements in Light 859 III. Easements in Water 870 IV. Rights of Way 886 I. Leading Principles. § 848. Jurisdiction analogous to that in nuisance. 849. General rule; right by prescription. 850. Easement must be certain and violation of right clear. 851. Covenants against erections will be enforced. 852. Easement in lateral support. 853. Right of burial. 854. Action of trespass. 855. Public squares. 856. Dedication for burial ground and schoolhouse. 857. Protection to dowress. 858. Removal of signs. § 848. Jurisdiction analog-ous to that in nuisance. The general principles on which the jurisdiction of equity to restrain the violation of easements is based are similar to those which constitute the foundation of the relief against nuisances. Indeed, so closely allied are the two subjects that it is difficult to draw the line between what constitutes a violation of an easement and what a nuisance. In a generic sense every violation of an easement may be considered as a nuisance, although the converse of the proposition does not hold true. In both cases, to warrant the interposition of equity, an irreparable injury must be made to appear, which it not susceptible of adequate com- pensation in pecuniary damages, or which, from the nature of the case, would occasion a constantly i-eeurring griev- 808 CHAP. XIV.] PROTECTION OF EASEMENTS. 809 ance, such as loss of health, trade, business, or destruction of means of subsistence.^ § 849. General rule ; right by prescription. It may be stated as a general rule that where an easement or servi- tude is annexed or pertains to a private estate, either by grant, covenant or prescription, any encroachment upon the quiet enjoyment and exercise will be prevented by injunc* tion.2 Thus, where one has sold a lot adjoining his private residence on condition that it shall not be used in any manner offensive to the original owner, any violation of this covenant will be restrained.^ And where the easement is acquired by prescriptive use for a long period of years, it is as much entitled to protection in equity as though resulting from grant or covenant.^ And plaintiff* who has long enjoyed and used an easement consisting in the right to drain the surplus water upon his premises through and over defendant's premises may enjoin an obstruction of the right.^ So acquiescence for twenty years in defendant's use and enjoyment of the right will prevent complainant from enjoining such use.^ But where the right or easement is. based upon prescription, it must be shown to have been in exclusion of the rights of others. Thus, where complainant relies on twenty years adverse user and enjoyment of a fishery in a navigable river to restrain defendant from interfering with his easement by the erection of a wharf and running steamboats, the absence of an averment in the bill iWebber r. Gage, 39 N. H., 182. 31, 29 N. E., 11; Yeager v. Mau- and cases cited. And see Sander- ning, 183 111., 275, 55 N. E., 691. lin V. Baxter, 76 Va., 299. See, 3 Seymour v. McDonald, 4 SandL also, chapter on nuisances, ante. Ch., 502. 2 Webber v. Gage, 39 N. H., 182; 4 Hulme r. Shreve, 3 Green Ch., Seymour v. McDonald, 4 Sandf. 116. And see Shreve v. Voorhees, Ch., 502; Hulme v. Shreve, 3 2 Green Ch., 25. Green Ch., 116; Hills r. Miller, 3 s Sanderlin v. Baxter, 76 Va., Paige, 254; Trustees v. Cowen, 4 299. Paige, 510; Sanderlin v. Baxter, 76 6 Haight v. Morris Aqueduct, 4 Va., 299; Sheeks v. Erwin, 130 Ind,. Wash. C. C, 601. 810 INJUNCTIONS. [chap. XIV. that such use was in exclusion of all others will be fatal to •complainant's case."^ § 850. Easement must be certain and violation of right clear. To authorize the interference in this class of cases the easement should be itself certain and capable of being clearly ascertained, and there should be a clear and palpable violation of the right.^ And where only a pos- sible injury to complainant's basement is shown, as in the •erection of a wharf where it does not appear that his prop- erty rights will be violated, and where such injury as may result can be remedied at law, an injunction will not be al- lowed.^ Nor will the owner of real estate be restrained from making reasonable improvements, such as the erection of buildings, on the ground of endangering a neighboring •edifice, if the owner of the adjacent premises possesses no special privileges protecting him from such erections, either by prescription or by grant from the person making the ^improvement, or from those under whom he claims title.^^ § 851. Covenants against erections will be enforced. A •covenant in a conveyance not to erect or permit the ■erection of any buildings on the premises of the grantor in front of the premises conveyed is the grant of an •easement, and the grantee is entitled to an injunction to restrain the owner of the servient estate from the erection of buildings in violation of his covenant.^ ^ And where the vendee of land has purchased upon the strength of repre- T Delaware v. Stump, 8 Gill & J., Trustees r. Cowen, 4 Paige, 510. 479. For a case where an injunction 8 Olmstead v. Loomis, 6 Barb., was refused, when sought to re- 162; Howell Co. v. Pope Glucose strain defendants from selling for Co., 171 111., 350, 49 N. E., 497. building purposes an estate over '•> Taylor v. Brookman, 45 Barb., which plaintiff had a right of 106. shooting for a term of years, see 1" Lasala r. Holbrook, 4 Paige, Pattisson v. Gilford, L. R. 18 Eq., 160. 259. 11 Hills t-. Miller, 3 Paige, 254; 'CHAP. XIV,] PROTECTION OF EASEMENTS. 811 sentations made by the vendor that an alley should be es- tablished and perpetually maintained to a piece of land adjacent, even though the representations were not made in writing, the obstruction of such right of way will be per- petually enjoined.!- So the grantee of real estate may be restrained from the violation of covenants on his part against erections upon the premises conveyed. And where real estate is sold, with covenants by the grantee that no buildings shall be erected thereon, and passes through suc- cessive hands, the final owner in fee with notice of such covenants will be^ enjoined from violating the agreement by erecting buildings contrary to its terms.^^ So a covenant in a conveyance that neither the grantee nor any persons ■claiming under him shall erect upon the premises conveyed buildings exceeding a specified depth confers such an ease- ment upon the grantor, or those claiming the title to adja- cent premises under him, as to warrant relief by injunction against a violation of the covenant.^^ § 852. Easement in lateral support. The relief will be ex- tended for the protection of an easement to sujjport where defendant's acts tend to the destruction of the right. Thus, the owner of one-half of an ancient solid party-wall has been enjoined from removing a portion thereof, and erecting a new wall on his own land at a distance of two inches from that left standing, the original wall having been long used for the support of buildings on either side.^^ In the ab- sence, however, of some contract or obligation to the con- trary an easement in a party-wall between adjacent premises ■continues only so long as the buildings continue, and upon their destruction by fire one of the parties ma}- restrain the 12 Trueheart v. Price, 2 Munf., i* Lattimer r. Livermore, 72 N. 468. Y., 174. 13 Mann v. Stephens, 15 Sim., i5 Phillips v. Bordman, 4 Allen, 377. And see Seymour v. McDon- 147. aid, 4 Sandf. Ch., 502. 812 INJUNCTIONS. [CIIAP. XIV. other from replacing or using the wall.^^ But a land owner is entitled to have his land in its natural state supported by the adjoining land of his neighbor, and this right may be protected by injunction in a proper case.^''' And where de- fendant, by mining operations upon his own premises, adja- cent to those of plaintiff, has endangered the walls and lateral support of plaintiff' 's house, he may be enjoined from work- ing under plaintiff's laud, or within his own boundary in such manner as to occasion any subsidence or alteration of the surface of plaintiff's land.^^ If, however, the substan- tial controversj' is as to the real dividing line between the tw^o parcels of land, relief by injunction will be denied, leav- ing the parties to their remedy at law.^^ So the construc- tion of drains and ditches upon one's own lot, so as to conduct the water accumulating thereon to and against the Avail of a building upon an adjacent lot, in such manner as to weaken the wall and render it dangerous and unsafe^ may be enjoined. For, while the owner of an upper lot has a natural easement or servitude in an adjoining and lower lot to the extent of the natural flow of water from the upper to the lower lot, he has no right to increase that servitude by leading in more water to the injury of the lower lot.20 But the fact that the eaves of a house project over an adjoining lot to such an extent as to throw the water from the roof upon such lot will not justify an in- junction, when it does not appear that irreparable injury will follow.21 • § 853. Right of burial. The right of burial in a church yard, though conveyed by grant, is nevertheless considered as an easement rather than a title to the freehold, and an injunction will not be allowed the owner to prevent such in Hoffman v. Kuhn, 57 Miss., lo Wykes r. Ringleberg, 49 Mich., 746. 567. 17 Hunt v. Peake, Jolin., 705; -" Goldsmith r. Elsas, 53 Ga., 186. Trowbridge r. True, 52 Conn., 190. m Cherry v. Stein, 11 Md., 1. iH Hunt V Peake, John., 705. CHAP. XIV.] PEOTECTION OF EASEMENTS. 813 disposal of the soil and removal of the remains interred therein as the court may have ordered on application of the officers of the church.22 § 854. Action of trespass. The owners of an easement will not be allowed to restrain the owner of the servient estate from proceeding in an action of trespass, where the grounds of defense to the action are partly legal and partly equitable, but the action at law will be allowed to proceed. In such case, if the legal grounds relied upon in defense are main- tained in the action at law, no proceedings in equity are necessary; while if they are not sustained and it afterward becomes necessary for a court of equity to take cognizance of the equitable questions involved, the court will know what amount of damages has been assessed by the jury in the trial at law, and will thereby be better enabled to se- cure that which has been decided at law to be full com- pensation for the easement.23 § 855. Public squares. The right which it is sought to protect by injunction may result from a dedication of land to public uses, as well as from express grant or adverse pos- session. Thus, where land has been dedicated to the use of the public as a public square, the owners of lots adjoin- ing the square who have purchased their lots and made improvements, relying upon such dedication to the public use, are entitled to the aid of equity to restrain the erec- tion of private buildings on the square,-^ or to restrain the enclosure of a portion of the square for private uses,^^ or to restrain its unauthorized sale.-^ And where the proprietors of lands in laying off a town have dedicated a block of 22 Richards v. Northwest P. D. v. Auten, 77 111., 325. And see, Ct, 32 Barb., 42. post, § 1275. 23 Barnard v. Wallis, 1 Cr. & Ph., 25 Wheeler v. Bedford, 54 Conn., 85. 244, 7 Atl., 22. 24 Rutherford v. Taylor, 38 Mo., -^ Cummings v. City of St. Louis, 315. And see Brown v. Manning. 90 Mo., 259, 2 S. W., 130. 6 Ohio, 298; Village of Princeville 814 INJUNCTIONS. [chap. XIV. ground to the use of the public as a public square, intended for the convenience and pleasure of the inhabitants, and the corporate authorities of the town or village have acquiesced in its use for such purposes for many years, they may be enjoined from diverting such square from its proper use by the erection of a town hall thereon.-^ So purchasers of lots, fronting upon a square which was dedicated by the original owner to the public use for a court house, having purchased upon the faith of such dedication, may restrain the county authorities from diverting the square to a use not con- templated by the original dedication, such as the erection of a jail thereon.28 So where land has been dedicated to a city for use as a public park, to be kept at all times free of buildings, and the dedication has been accepted, the city takes title subject to a perpetual trust in favor of the public and will be enjoined at the instance of an abutting owmer from erecting buildings in violation of the terms of the dedi- cation.-^ So w^here an injunction had been granted to re- strain defendant from interfering with land alleged to have been dedicated to the use of the public, and it appeared that the land had been so used by the public for many years, and defendant bj' his answer showed no satisfactory title to the premises, it was regarded as proper to continue the injunction until the hearing.^'' Nor will the original proprietors, who have dedicated land to be used as a pub- lic square, afterward be allowed to appropriate it to their own private use, and an adjacent lot owner is a proper party complainant to a bill in equity to enjoin such ap- propriation.- Such a complainant, being one of the inhabi- tants of the town and holding property contiguous to the square, is not a mere volunteer assuming to protect the •^■! Village of Princeville r. Auten, 111., 392, 48 N. E., 927, 38 L. R. A.> 11 111., 325. 849, 61 Am. St.. Rep., 185. 2N County of Harris r. Taylor, ;'o Trustees r. Gray, 12 C. E. 58 Tex., 690. Green, 278. 2» City of Chicago r. Ward, 1G9 CHAP. XIV.] PKOTECTION OF EASEMENTS. SIS' rights of others, but is injured in his individual rights, and is entitled to the aid of equity to protect his own interests.-''^ Where, however, the owners of adjacent lots sustain no in- jury to their individual rights, equity will not interfere. Thus, where a square has been conveyed to a county for the erection of public buildings and a court house, adjacent lot owners will not be permitted to restrain the county com- missioners from leasing portions of the ground for private purposes, reserving the rent to the county, complainants in such case being regarded merely as volunteers having no personal interests to be protected.^- § 856. Dedication for burial ground and school house. Where land has been dedicated to the public use for cer- tain specified purposes, an injunction will not usually be al- lowed to prevent the carrying out of such purposes. Thus, the owner of lands having dedicated a portion of them during his life-time for a burial ground and school house lot, his heir, who is a non-resident, will not be allowed to enjoin the rebuilding of a school house upon the premises. in question. Under such circumstances the erection of a new school house upon that part of the ground dedicated to school purposes is no encroachment upon the dedication, and it is error to enjoin its erection.^^ § 857. Protection to dowress. The aid of an injunction has been granted for the protection of the interest of a dowress in easements appurtenant to real property allotted to her for her dower. Thus, where a widow received as her dower a portion of a building consisting of several stores in a city, and the owners of the remaining stores in The same building, deriving their title under the will of the deceased husband, were about to tear down their portion 31 Brown v. Manning, 6 Ohio, 298. 33 Pott v. School Directors, 42 Pa.. 32 Smith V. Heuston, 6 Ohio, 101. St., 132. And see Putnam v. Valentine, 5 Ohio, 187. 816 INJUNCTIONS. [chap. XIV. of the general building for the purpose of erecting better improvements, thereby depriving the widow of the use of a stairway necessary to reach the upper stories of her portion of the building, and depriving her of a sky-light necessary for lighting the upper floors, an injunction was allowed for the protection of the easements in question.^^' § 858. Removal of signs. Equity will not, however, in- terfere by injunction in this class of cases, when it is not satisfactorily shown that the proposed interference with plaintiff's easement would be unreasonable or vexatious. Thus, where plaintiff had a perpetual easement in the use of a stairway between his building and that of defendant, and sought to enjoin defendant from tearing down or re- moving any signs that plaintiff' or his tenants might place on the stairway, the relief was refused, upon the ground that the court could not determine in advance whether a proposed sign would be reasonable or unreasonable.^^ 34 Morrison v. King, 62 111., 30. ss Bennett v. Seligman, 32 Mich., 500. •CHAP. XIV,] PEOTECTIOX OF EASEMENTS. 817 II. Easements in Light. •| 859. The general doctrine stated. 860. Tests to be applied; illustrations. 861. The same. 862. Prescriptive right protected. 863. Enlargement of windows; rebuilding house; change of servi- tude. :864. Lessor and lessee. 865. When relative convenience balanced. 866. When relief refused. 867. Effect of plaintiff's delay. 868. Prescriptive right denied in this country; erection of building over canal. 869. Title derived from common source. § 859. The general doctrine stated. In England the pre- ventive jurisdiction of equity is frequently called into ex- ercise for the purpose of protecting easements in ancient lights which have been long enjoined, and the right to the uninterrupted use and enjoyment of such lights is freely protected by injunction.^ In cases of this nature, equity 1 Staight V. Burn, L. R. 5 Ch., served, that in England the righC 163; Theed v. Debenham, 2 Ch. D, to equitable relief for the protec- 165; Potts V. Levy, 2 Drew., 272; tion of ancient lights is to a con- Simper V. Foley, 2 John. & H., siderable extent dependent upon 555; Gale v. Abbott, 8 Jur. N. S., the Statute, 2 and 3 Wm. IV., Ch. ^87; Maguire r. Grattan, I. R. 2 72, § III, which provides as fol- Eq., 246; Kelk v. Pearson, L. R. 6 lows: "And be it further enacted, Ch., 809; Beadel r. Perry, L. R. 3 that when the access and use cf Eq., 465; Martin v. Headon, L. R. light to and for any dwelling 2 Eq., 425; Dent v. Auction Mart house, workshop, or other build- Co., L. R. 2 Eq., 238; Weston r. ing, shall have been actually en- Arnold, L. R. 8 Ch., 1084; Dyers joj^ed therewith for the full period Company r. King, L. R. 9 Eq., 438; of twenty years without interrup- Leech v. Schweder, L. R. 9 Ch., tion, the right thereto shall be 463; Martin v. Price, 63 L. J. N. deemed absolute and indefeasible, S. Ch., 209; Home & Colonial any local usage or custom to the Stores V. Colls, (1902) 1 Ch., 302; contrary notwithstanding, unless Cowper V. Laidler, (1903) 2 Ch., it shall appear that the same was 337. It should, however, be ob- enjoyed by some consent or agree- 52 818 INJUNCTIONS. [chap. XTV. proceeds upon the principle that when there is a material and substantial injury to a clear, legal right and when from the nature of the case damages would not afford a complete compensation, it is proper to interfere by injunction.- And where defendant is encroaching upon plaintiff's ancient lights by building upon adjacent premises, if plaintiff's title be ad- mitted, the relief may be allowed without requiring him to try his right at law.^ It is not, how^ever, every deprivation of ancient lights that will authorize the interference by in- junction, nor is the diminution of the value of the premises by the erection of buildings so as to darken one's Avindows alone a sufficient ground, nor the fact that an action on the case would lie for the damages rsulting from such diminu- tion. To warrant the relief there must be such material in- jury to the comfort of those dwelling in the neighboring house as requires the exercise of a preventive as well as a remedial power.^ And where it is not shown that the ob- ment expressly made or given for that purpose by deed or writing." As to the right to relief under a statute authorizing an injunction against the malicious erection by an owner or lessee of land of any structure thereon intended to an- noy or injure any proprietor of ad- jacent land in respect to his use or disposition of the same, see Harbison r. White, 46 Conn., 106. -* Staight V. Burn, L. R. 5 Ch., 163. y Potts V. Levy, 2 Drew., 272. •1 Attorney-General r. Nichol, 16 Ves., 338. The general principles underlying the jurisdiction of equity to interfere for the protec- tion of easements in lights are well laid down by Lord Eldon in this case as follows: "The foundation of this jurisdiction, interfering by injunction, is that head of mischief alluded to by Lord Hardwicke, that sort of material injury to the comfort of the existence of those who dwell in the neighboring house requiring the application of a power to prevent, as well as remedy, an evil for which dam- ages, more or less, would be given in an action at law. The position of the building, whether opposite, at right angles or oblique, is not material. The question is, whether the eifect is such an obstruction as the party has no right to erect, and can not erect without those mischievous consequences, which upon equitable principles should be not only compensated by dam- ages, but prevented by injunction. * * * I repeat the observation of T>ord Hardwicke, that a diminu- tion of the value of the premises is not a ground; and there is as lit- CHAP. XIV.] PROTECTION OF EASEMENTS. 819 striietion of the light would cause a material injury to the comfort of complainant, the relief will not be granted.^ §860. Tests to be applied; illustrations. In cases where relief by injunction is sought to prevent a deprivation of ancient lights, the question for determination is usually as -to the degree of deprivation. And where a substantial injury is shown to result from the proposed erection and the darkening of plaintiff's lights, a court of equity may properly interfere.^ The test to be applied is, whether plaintiff's house is, by the obstruction which he seeks to enjoin, rendered in a substantial degree less fit for purposes of occupation than before. In other words, the diminution of light must be a substantial diminution, or one which renders plaintiff's house substantially less comfortable. This tie doubt that this court will not interpose upon every degree of darkening ancient lights and win- dows. There are many obvious cases of new buildings darkening those opposite to them, but not in such a degree that an injunction could be maintained, or an action upon the case; which, however, might be "maintained in many cases which would not support an injunction. These affidavits, there- fore, stating only that the ancient lights will be darkened, but not that they will be darkened in a sufficient degree for this purpose, will not do." 5 Wilson V. Cohen, Rice Eq., 80. It is often a matter of great diffi- culty to determine what amount of obstruction to light will authorize an injunction. The rule at law as to the degree of obstruction which is actionable is laid down in Back V. Stacey, 2 Car. & P., 465, sub- stantially as follows: "To consti- tute an illegal obstruction of light by building, it is not sufficient that plaintiff has less light than before, or that the part of his house af- fected can not be used for all the purposes to which it might other- wise have been applied. In order to give a right of action there must be a substantial privation of light sufficient to render the occupation of the house uncomfortable, or to prevent the plaintiff from carrying on his accustomed business on the premises as beneficially as he had formerly done. It may be difficult to draw the line, but a distinction must be drawn between a practical inconvenience and a real injury to the plaintiff in the enjoyment of the premises." G Maguire v. Grattan, I. R. 2 Eq., 246. In this case it was shown that the proposed erection would exclude more than one-half of the former sky area pertaining to- plaintiffs premises. 820 INJUNCTIONS. [CIIAr. XIV. being shown, equity may interfere, even to the extent of making its injunction mandatory by directing the restora- tion of matters to the condition in which they were before defendant's erection was begun J And in the case of ob- struction to ancient lights a mandatory injunction has been allowed, even before the hearing.^ But where it is not shown that the obstruction which it is sought to enjoin is such as to interfere with the ordinary occupations of life, an injunction will be withheld, the real question to be de- termined being whether the light is so obstructed as to cause material inconvenience to the occupants of plaintiff's house in the ordinary and accustomed occupations of life.^ And when plaintiffs fail to show any substantial damage as likely to result to themselves, the relief will be withheld.^^^ § 861. The same. When it is sought to enjoin an obstruc- tion to ancient lights of premises used for business purposes, the court will not interfere unless the obstruction to the lights renders the building to a material extent less suitable for the business conducted, but will leave the person ag- grieved to his damages at law; the foundation of the juris- diction being that injury to property which renders it in a material degree unsuitable for the purposes to which it is applied, or which lessens considerably the owner's enjoy- ment. And it would seem that the test is to be applied with reference to the injury to the business then being con- ducted upon the premises, and not as regards their possible future use for other purposes.^ ^ To warrant the injunction plaintiff should show that there will be a permanent obstruc- - Kelk V. Pearson, L. R. 6 Ch., » Clark r. Clark. L. R. 1 Ch., IG. 809; Home & Colonial Stores v. See also Durell v. Pritchard, L. R. Colls, (1902) 1 Ch., 302. 1 Ch.. 244. « Beadel v. Perry, L. R. 3 Eq., i'^ City of London Brewery Co. 465. As to the effect of delay upon v. Tennant, L. R. 9 Ch., 212. the right to a mandatory injunc- n Jackson r. Duke of Newcastle, lion in this class of cases, see 33 L. J. Ch., 698. Senior r. Pawson, L. R. 3 Eq., 330. CHAP. XIV.] PROTECTION OF EASEMEXTS. 821 lion to the access of light to such an extent as to render the occupation of his premises less comfortable than before, or to prevent the present tenant from carrying on his business as beneficially as before ; and this not being shown, equity should not interfere.^- But where defendant's structure which it is sought to enjoin as an obstruction to plaintiff's light would seriously interfere with the occupation of plain- tiff' 's house, and would prevent him from carrying on his business with the same degree of convenience as before, be- cause of such obstruction to light, a proper case for injunc- tion is presented.13 So when the case presented is such as would entitle plaintiff to substantial damages, if suing at law for the obstruction to his ancient light, equity may in- terpose by injunction.!* § 862. Prescriptive right protected. In applications for the aid of an injunction for the protection of easements in ancient lights, no distinction is made between cases where the right is acquired by prescription and cases where it rests in grant, the same equitable principles being applied in either case.^^ And one who has acquired a right to an- cient lights by prescription, having exercised the right for a period of more than twenty years, is entitled to protection by injunction against a deprivation of this right by defend- ant building upon adjacent premises.!^ Nor is it a sufficient objection to the granting of an injunction to prevent an obstruction to plaintiff"s ancient lights, which he claims by prescription, that he has obtained light in other directions which is equivalent to that of which defendant's structure will deprive him, since the right is to be determined as be- 12 Kino V. Rudkin, 6 Ch. D., 160. effect of a covenant for quiet en- 13 Martin v. Headon, L. R. 2 Eq., joyment. 425. i« Weston v. Arnold, L. R. 8 Ch., 14 Dent V. Auction Mart Co., L. 1084. But the relief has been re- R. 2 Eq., 238. fused when the lights were not an- 15 Leech v. Schweder, L. R. 9 Ch., cient. Booth v. Alcock, L. R. 8 463. And see this case as to the Ch., 663. 822 INJUNCTIONS. [chap. XIV. tween the owners of the dominant and of the servient es- tate.^" So the relief will be granted to restrain the owner of a house from rebuilding in such manner as to darken and obstruct ancient lights and windows upon plaintiff's ad- joining premises.i^ And the obstruction by new erections of ancient lights upon plaintiff' 's premises has been enjoined, although plaintiff's building has been torn down and there are no existing windows whose light is obstructed by the structures which defendant is erecting.^'' But equity will not enjoin a defendant, who is the owner of adjoining prem- ises, from maintaining such erections as may prevent plain- tiff from acquiring a prescriptive right to light and air.-*^ §863. Enlargement of windows; rebuilding house; change of servitude. Equity may enjoin the erection of a build- ing in such manner as to obstruct plaintift"s ancient lights, even though he may have enlarged his windows, since in" so doing he has only exercised a natural right of property, and can not thereby lose any other right which he may have acquired.-^ And when a house has been destroyed and rebuilt, in determining whether the character of ancient lights attaches to the windows of the new house so as to en- title the owner to protection by injunction, the principle to be applied is, whether the new windows would impose upon the servient tenement a servitude additional to or different from that to which it was previously subjected. AYhenever, therefore, it appears in such case that the servitude or bur- den imposed by the new windows is neither greater than nor different from that which formerly existed, the new win- dows may be regarded as ancient lights and an injunction may l* allowed, if there is a substantial and material ob- 17 Dyers Company r. King, L. R. ^'j Ecclesiastical Commissioners 9 Eq., 438. r. Kino, 14 Ch. D., 213. i«Back r. Stacy, 2 Russ., 121; -'o Bonner r. Great Western R. Sutton V. Lord Montfort, 4 Sim., Co., 24 Ch. D., 1. 559. 21 Aynsley r. Glover, L. R. 10 Ch., 283. CHAP. XIV.] PROTECTION OF EASEMENTS. 823 struction to the light. ^- And applying the same principle, whenever the alteration in plaintiff's premises creates an entirely new servitude, and the owner of the ancient light has so dealt with it as to essentially alter its character and to convert it into a different easement over his neighbor's land, thereby preventing defendant from enjoying his prop- erty as he might otherwise have done, an injunction Avill be refused and plaintiff' will be left to seek his remedy at law.23 § 864. Lessor and lessee. A tenant from year to year is entitled to protection by injunction to prevent an obstruc- tion of ancient lights upon the demised premises; but in such case, the injunction should be limited to the period of plaintiff' 's tenancy.-^ But where plaintiff, seeking to en- join the obstruction of an ancient light, is a lessee whose lease has expired during such obstruction, but he has agreed for a renewal of the lease, he will not be denied an injunction upon that ground.--^ As betw^een lessor and lessee, it is held that the lessor will not, during the continuance of his lease, be allowed an injunction to restrain his lessee from darkening windows in the demised premises and ob- structing light wdiere it is not shown that the injury is ir- reparable and not susceptible of compensation in damages.^*^ 22 Curriers Company r. Corbett, 2 24 Simper v. Foley, 2 John. & H.. Dr. & Sm., 355. See also Staight 555. t'. Burn, L. R. 5 Ch., 163; Newson 2.-, Qale v. Abbott, 8 Jur. N. S., V. Pender, 27 Ch. D., 43. As to 987. the effect of a change in plaintiff's 2(3 Atkins v. Chilson, 7 Met., 398, premises by tearing down his old decided upon the authority of In- building and rebuilding in a dif- graham v. Bunnell, 5 Met., 118, ferent manner, as regards his holding that an injunction will not right to an injunction to protect lie to restrain an injury caused to his ancient lights under English a reversionary interest in an estate statutes, see National Co. r. Pru- unless the injury will be irrepara- dential Co., 6 Ch. D., 757. ble, or, from its nature, not sus- 23 Heath v. Bucknall, L. R. 8 ceptible of adequate pecuniary Eq., 1. compensation. 824 INJU?fCTIOXS. [chap. XIV, § 865. When relative convenience balanced. When the al- leged nuisance consists in a diminution of light and air to plaintiff's building, but no serious or irreparable injury is shown, the court may balance the relative inconvenience to the parties which would result from its interference, and may refuse the injunction; especially when plaintiff's only right is as a tenant from year to year, and when he has. already received notice to quit.-''' So if the evidence is so conflicting upon the motion for an interlocutory injunction that it is a matter of great difficulty to determine between the conflicting witnesses, the court may properly be governed by considerations of the relative inconvenience which would result to the parties from granting the relief. And if, upon weighing such considerations, it is apparent that the incon- venience which would result to defendants by granting the injunction would be far greater than that to plaintiff by its. refusal, the injunction may be refused in limine. It is. proper, however, in such a case to put defendants under terms of abiding such order as the court may make at the final hearing concerning the removal of their buildings, if they should prove to be an obstruction to plaintiff's ancient lights.28 And the practice has sometimes prevailed of grant- ing the injunction restraining defendants from making erec- tions which would darken plaintiff' 's ancient lights, with liberty to defendants to apply to the court with respect to the erection of any buildings upon their propert}^-^ § 866. When relief refused. Although the building hy defendant of a house upon his own premises adjoining those of plaintiff may render the prospect from plaintiff's house less pleasant than before, that will not of itself suffice for an injunction.'^'^ And equity will not interfere in this class. 27 Jacomb v. Knight, 3 DeGex, J. 2;' Stokes v. The City Offices Co.. & S., 533. 2 Hem. & M., 650. 28 Mackey v. Scottish Society, I. ••" Fishmongers Co. v. East India R. 10 Eq., 114. Co., Dick., 163. CHAP. XIV.] PEOTECTION OF EASEMENTS. 825 of cases when plaintiff's right is doubtful, but will leave him to establish his right at law.^i So when it is sought, to restrain defendant from building over what is claimed to be a public highway, in such manner as to obstruct plaintiff's light and air, the relief will be denied when plaintiff' fails to show a clear legal right, and when he shows no direct grant of way or of a right to light.^- And when the structure com- plained of as an obstruction to plaintiff's light and air con- sists in the erection of a screen of glass, but there is no actual evidence of obstruction to light and air, and only the- opinions of witnesses are presented, the court may refuse to enjoin.^^ §867. Effect of plaintiff's delay. Although the obstruc- tion to plaintiff's ancient light is satisfactorily established, yet when such obstruction has been permitted to go on for a period of six years with full knowledge upon the part of plaintiffs before bringing their action, such delay will have much weight with the court in refusing the injunction.^^ Where, however, plaintiff's delay in instituting proceedings, has been due to promises upon the part of defendant to remove the obstruction, such delay will not be treated as- acquiescence barring the right to relief, and the injunction, may still be granted if sufficient grounds are shown to war- rant the exercise of the jurisdiction.^^ § 868. Prescriptive right denied in this country ; erection of building over canal. While, as we have already seen, an easement or servitude may be created by prescription, yet in this country an exception is taken in the case of ease- ments in light, and the English doctrine of sustaining a right to ancient lights and windows upon twenty years user does 31 Wynstanley v. Lee, 2 Swanst., 34 Gaunt v. Fynney, L. R. 8 Ch. 8. 333. 35 Gale i'. Abbott, 8 Jur. N. S., 32 Biddle v. Ash, 2 Ashmead, 211. 987. 33 Radcliffe v. Duke of Portland, 3 Gif., 702. 826 INJUNCTIONS. [chap. XIV. not generally prevail, and, while the American authorities are far from harmonious, yet the undoubted weight of au- thority is that mere user will not constitute sufficient ground for an injuuction.^*^ And in the absence of any grant or 36 King V. Miller, 4 Halst. Ch., by another, can only be in cases 559; Cherry v. Stein, 11 Md., 1; where the party against whom the Lapere v. Luckey, 23 Kan., 534. time is running has some means But see, contra, Robeson v. Pit- of preventing the act or its con- tenger, 1 Green Ch., 57; Clawson tinuance. Where he has no such r. Primrose, 4 Del. Ch., 643; S. C, means, he is in no default, and can, 15 Am. L. Reg. N. S., 6, and cases therefore, lose no right. And a cited. See also Shipman v. Beers, person by doing and continuing an 2 Abb. New Cas., 435. King i'. act on his property which he has Miller, 4 Halst. Ch., 559, was a. bill a right to do, and which another for an injunction to restrain de- has no means of preventing, can fendant from so building as to acquire no right injurious to the close up complainant's window In property of that other." Cherry the gable end of his house, which v. Stein, 11 Md., 1, was a bill to he claimed was an ancient win- restrain defendant from erecting dow. Complainant's house stood a wall in such manner as to on the line of his lot. The in- darken and shut up the lights and junction was denied, Halstead, Vv'indows upon one side of corn- Chancellor, saying: "The owner plainant's house, complainant re- of a lot has the election to build lying upon twenty years user, on it as he pleases. The owner Eccleston, J., delivering the opin- of the adjoining lot has the same ion of the court, denied the applL- right. If the one who builds first cation of the English rule, saying; chooses to build on the line, the "Where A makes a window in his adjoiniHg owner has no means of own house, overlooking the open preventing it, and has no means grounds of B, it is no infringe- of preventing the continuance of ment of the rights, or encroach- the building on the line. Where ment upon the property of the lat- one has a right to put up a build- ter. * * And yet, under the ing on the spot where he erects English rule, if the window re- it, and to continue it there, and mains open and unobstructed for the adjoining owner can do noth- more than twenty years, B can ing to prevent its erection on that not afterwards erect a building on spot, and can do nothing to pre- his land, if it obstructs the light, vent its remaining there, it is To prevent such a consequence simply absurd to say that the lat- the rule does not give him any ter can by lapse of time lose his right of action or legal proceed- right to build up to his line. The ing, but his only remedy is the loss of a right by lapse of time, seemingly ill-natured one of ren- from an act done and continued dering the window of his neighbor CHAP. XIV. J riiOTECTlON OF EASEMENTS. 827 covenant giving to plaintiff an easement in light and air, the construction of a bay window by defendant in such manner as to obstruct the view from and diminish the supply of light and air to plaintiff's adjoining house will not be en- joined.-''^ But, as already indicated, the American authorities are far from harmonious, and in Delaware the English doc- trine of title by prescription to ancient lights prevails, and the obstruction of such lights by an adjacent owner may be enjoined.^*^ And in New Jersey it is held that Avhen one sells a house so situated that the light necessary for its rea- sonable enjoyment is derived from and over an adjoining lot belonging to the same grantor, an easement to light and air over such vacant lot passes as an incident to the grant, because necessary to its proper enjoyment. And in such case, a subsequent grantee of the adjacent lot, with notice, may be restrained from the erection of a building which will obstruct plaintiff's light and air.^^ So where the co- owners of a piece of land, upon one-half of which is a building having a window through wdiich light and air are useless, by building a wall or s" Jenks c. Williams, 115 Mass., other obstruction for that purpose 217. alone, if at the time he has no ss Clawson 'V. Primrose, 4 Del. wish to build a house on his omii Ch., 643; S. C, 15 Am. L. Reg. N. property. And if the window be S., 6, and note with exhaustive of considerable height, the expense collection of American cases. See of obstructing it might be equiv- also Hulley v. Security T. & S. D. alent, or nearly so, to the value Co., 5 Del. Ch., 578. of the unimproved or vacant land 39 Sutphen r. Therkelson, 38 N. designed to be protected. The J. Eq., 318. As to the right to a effects and legal consequences re- preliminary injunction to restrain suiting from the user of a way, the erection of a building in such and that of a light, are so essen- manner as to darken plaintiff's tially different, we do not perceive windows and exclude the light, in the propriety of holding that the violation of a covenant in tha twenty years rule which is appli- conveyance under which defend- cable to the former should also be ant derives title, until the ques- applied to the latter." And the tion of plaintiff's right may be de- court refused to sustain the in- termined, see Pope r. Bell, 35 N, junction. J. Eq., 1. 828 INJUNCTIONS. [chap. XIV. received across the other half of the property, afterward sever the ownership by the exchange of deeds and it ap- pears that the use of such light and air are reasonably necessary for the beneficial enjoyment of the property, an easement is created which equity will protect by injunc- tion, and the owner of the adjoining land may therefore be restrained from erecting a building in such a manner as to close the window and thus deprive plaintiff of his ease- ment of light and air."**^ So where plaintiff owns premises abutting upon a private way or alley, which has never been dedicated to the public and which belongs in equal por- tions to the owners of the adjacent lots, he may enjoin de- fendant, an adjacent lot owner, from erecting a fence upon plaintiff's side of the alley which will result in closing plaintiff's windows and in excluding light and air from his premises.^i So the owner of land adjacent to a canal which is a public highway is entitled to receive from it light and air, and equity will restrain one holding under the canal company from erecting a building over the canal in such manner as to close up complainant's windows and deprive him of the free enjoyment of this right. •*- § 869. Title derived from common source. Where both plaintiff and defendant derive title to adjacent premises, from a common source, and defendant is about to erect a building upon his vacant premises which will have the effect of obstructing many of plaintiff's windows in a build- ing construtced by the original grantor of both parties, equity will not interfere by injunction in the absence of any covenant in the grant under which plaintiff' claims in- dicating an intention upon the part of the grantor to limit the use of the vacant lot so that it shall not impair plain- tiff' 's light and air.^^ •»o Greer v. Van Meter, 54 N. J. -^^ Barnett v. Johnson. 2 McCart., Eq., 270, 33 Atl., 794. 481. " Sankey r. St. Mary's Female -"^ Shipman v. Beers, 2 Ab. New Academy, 8 Mont., 265, 21 Pac, 23. Cas., 435, €HAP. XIV.] PROTECTION OF EASEMENTS. 829 III. Easements in Water. 5 870. Easements in water protected; evidence; licensee. 870a. Protection to mill owners. 871. Easement by prescription protected. 872. Doctrine of prescription in cases of mills. 873. Relief in behalf of mill owners. 874. The same. S15. Detention of water from factory. 576. Underground channels. S17. Mining ditch; ditch for drainage; drawing off water from nav- igable river. :878. Supply of water from other premises. 879. The same. 880. Joinder of plaintiffs. 881. Illustrations of the general doctrine. •882. Canal company. 883. "When injunction denied. ■884. Effect of acquiescence as an estoppel. .885. The same. §870. Easements in water protected; evidence; licensee. An easement or servitude in water is, under some circum- stances, entitled to protection in equity, and an injunction will be granted in a proper case. Thus, riparian proprietors ■of a private stream, entitled to the use and enjoyment of the stream without diminution or alteration, will be protected by injunction from violation of their right.^ And where mills are situated on both sides of the stream, if the 1 Society v. Low, 2 C. B. Green, I. & S. Co., 13 Ore., 496, 11 Pac, 19; Howe v. Norman, 13 R. I., 488; 255; Earley's Appeal, 121 Pa. St., Brown v. Ashley, 16 Nev., 311; 496, 15 Atl., 602. But in Michigan Bitting's Appeal, 105 Pa. St., 517; the courts have manifested a re- Heilbron v. Canal Co., 75 Cal., luctance to interfere by injunction 426, 17 Pac, 535. See also Lux v. for the purpose of regulating Haggin, 69 Cal., 255, 10 Pac, 674; rights or easements in water, un- Barneich v. Mercy, 136 Cal., 205, less in cases of an intentional 68 Pac, 589; Proprietors v. Brain- violation of the right. See Hoxsie tree W. S. Co., 149 Mass., 478, 21 v. Hoxsie. 38 Mich., 77; Bradfield N. E., 761, 4 L. R. A., 272; Kay v. v. Dewell, 48 Mich., 9, 11 N. W., Kirk, 76 Md., 41, 24 Atl., 326, 35 760. Am. St. Rep., 408; "Weiss v. Oregon S30 INJUNCTIONS. [chap. XIV. mill owner upon one side attempts to deprive the other of his share of the water, a preliminary injunction may be granted, since the injury is likely to prove irreparable.- So the owner of lands through which flows a non-navigable stream may restrain defendant from floating logs down the stream, which results in a continuous trespass to plaintiff's premises." It has been held, however, that complainant must first establish his rights at law, as well as a violation of those rights.^ And where only a casual and occasional in- fringement of the right is shown, as by defendant's using more than his share of water for mill purposes, no suit at law having been brought to test the question of right, equity will withhold its interference, on the ground that no mischief is likely to ensue which can not be remedied at law.^ The evidence upon which a court will perpetuate an injunction in this class of cases must clearly establish the essential allegations of the bill, the burden of proof being on the complainant. And where the evidence consists only of the opinions of witnesses, there being great contrariety of opinion, it will not suffice to make an injunction per- petual.'^ And it would seem that a mere license, not amounting to an absolute grant, to use water from a Avell upon adjoining premises will not authorize an injunction at the suit of the licensee to prevent defendant from de- priving him of the use of the water.'^ § 870 a. Protection to mill owners. Relief by injunction for the protection of easements in water is most frequently invoked in behalf of mill owners. And a riparian owner 2 Arthur v. Case, 1 Paige, 447. 369. This was a case where a pre- ■"• Haines v. Hall, 17 Ore., 165, 20 liminary injunction had been Pac, 831. granted to restrain defendants > Bliss V. Kennedy, 43 111., 67; from the erection of a mill in such Howell Co. r. Pope Glucose Co., 171 manner as to deprive complainant 111., 350, 49 N. E., 497. But see of sufficient water for mill pur- Pollitt /•. Long, 58 Barb., 20. poses. •'• Norris r. Hill, 1 Mich., 202. f Applegate i\ Morse, 7 Lans., 59. Woodruff V. Lockerby, 8 Wis., CHAP. XIV.] PROTECTION OF EASEMENTS. 831 upon a navigable stream, having a right to the natural flow of the water past his premises for mill purposes, may re- strain its unauthorized obstruction by the erection of a dam in such manner as to interfere with his right.'^ So a mill owner, who is entitled by grant to an easement in a specified quantity of water flowing over defendants' dam above, may restrain defendants from removing the old dam and building a new one farther up the stream which would have the efl'ect of depriving plaintiff of the quantity of water to which he is entitled.'^ And a purchaser of a mill under foreclosure proceedings may restrain the former owner from interfering with the dam and mill-race to the injury of the mill, when they constitute the sole source of supply for the mill.^^ So the owner of a mill and mill pond may enjoin a city from taking water for the supply of the city from such pond, either directly by means of pipes, or in- directly by means of a well dug in the vicinity of the pond.ii So a mill owner who is entitled to the natural flow of water from a stream for the operation of his mill may restrain its diversion by a riparian owner farther up the stream.^- And when plaintiff is entitled by contract to all the water for the use of his mills which flows over defendant's dam and which is not used by defendant, the latter may be enjoined from opening his gates and letting the water run to waste.^^ And when plaintiff is entitled to a given quantity of water for the use of his mill, and de- fendant operating a factory upon the same stream is en- titled to the water subject to plaintiff's r>rior right, de- fendant may be enjoined from interfering with such right. ^^ s Morrill r. Saint Anthony F. W. 12 Higgins v. Flemington W. Co., P. Co., 26 Minn., 222, 2 N. W., 842. 36 N. J. Eq., 538. 9 Matteson v. Wilbur, 11 R. I., is Fuller i: Daniels, 63 N. H., 545. 395. 10 Curtis V. Norton, 58 Mich., i* Mudge v. Salisbury, 110 N. Y., 411, 25 N. W., 327. 413, 18 N. E. 249. 11 City of Emporia v. Soden, 25 Kan., 588. !832 INJUNCTIONS. [CHAP. XIV. § 871. Easement by prescription protected. An easement in water may be acquired by prescription, and when so .acquired it is as absolute as any other right, and equity will restrain its violation when such violation is productive of ■serious injury.^ ^ Thus, when complainant has used and en- joyed a stream for his mill during a period of sixty years without interruption, defendants owning land on the borders •of the stream above may be enjoined from materially or sen- sibly altering or diverting the stream to the detriment of complainant's enjoyment.^ ^ So acquiescence for twenty years in defendant's adverse use of water which had previously :flowed into complainant's mill pond will prevent the ob- taining of an injunction.!'^ Nor will it avail complainant that there had been a three years' reflow of the water into his pond, defendants not having intended to abandon their right during that time.^^ But, although complainant has heen in possession twenty years, he will not be allowed, without first having established his right at law, to restrain the drawing off of water from a lake supplying his mill by means of a subterranean channel created five years before. ^^ § 872. Doctrine of prescription in cases of mills. The doctrine of prescription is perhaps more frequently invoked in aid of applications for the preventive aid of equity in ■cases of easements in water for mill purposes than in other cases of water privileges. And when plaintiff has been in the open, uninterrupted and public use of water for his 15 Hulme V. Shreve, 3 Green Ch., solved so far as it restrained de- 116; Matteson v. Wilbur, 11 R. I., fendants from erecting their mill 545; Eckerson v. Crippen, 110 N. on their own land and using the Y., 585, 18 N. E., 443. water for mill purposes. icShreve r. Voorhees, 2 Green i'^ Haight i\ Morris Aqueduct, 4 Ch., 25. But the injunction was Wash. C. C., 601. retained only so far as was neces- i** Id. sary to secure complainant in the lo Reid v. Gifford, 6 John. Ch., use of his mill as he had before en- 19. But see Reid t'. Gifford, Hopk. joyed it, without any material or Ch., 416. sensible alteration, and was dis- CHAP. XIV.] PROTECTION OF EASEMENTS. 833 mill for a period of thirty-eight years, such uninterrupted user will be deemed conclusive evidence of his right, and will warrant an injunction against the erection of a new dam which would have the effect of destroying his water- power.-^ So when plaintiff' has been in the uninterrupted use and enjoyment of a water-course for more than twenty years for the supply of his mill, and a tenant of lands upon the opposite side of the stream seeks to prevent him by force from repairing his dam so as to prevent a diversion of the water, an injunction is proper to restrain such ten- ant from interfering with plaintiff in making the repairs.^^ So, too, the right to overflow lands by the erection of a mill-dam, like other easements, may be acquired by long and adverse enjoyment for a period exceeding twenty years. And when for more than twenty-four years the owners of real estate which is overflowed by a dam have acquiesced in its erection and maintenance, and have during such period permitted its owner to make large expenditures without objection, they will not be permitted to enjoin the rebuilding of a portion of the dam which has been de- stroyed.-- § 873. Relief in behalf of mill owners. Since the pur- chase of a right carries with it of necessity all the inci- dents and privileges connected with the right and essential to its enjoyment, the purchaser of land on which stands the abutment of a mill-dam is entitled to the same use of the water which had been enjoyed by his grantor, and a court of equity may enjoin the grantor from using or inter- fering with the water, or diverting it from grantee's mill.^^ And as between parties who are owners in severalty of different mills situated upon the same mill-dam and having the right to a certain portion of the water for the use of 20 Matteson v. Wilbur, 11 R. I. 22 Vail v. Mix, 74 111., 127. 545. 23 Wall r. Cloud, 3 Humph., 181; 21 McSwiney r. Haynes, 1 Ir. Eq., Cox r. Howell, 108 Tenn., 130, 65 322. S. W., 868, 58 L. R. A., 487. 53 834 INJUNCTIONS. [chap. XIV. their respective mills, one of the parties may be enjoined from drawing off a portion of the water at a considerable distance above the dam. In such a case it is not essential that actual, perceptible damage should be shown, it being sufficient ground for equitable relief that there is a viola- tion of the right by diverting the stream from its full and natural flow. And the fact that defendant is entitled to the use of the water for his dam below does not author- ize him to impair the flow of the stream by drawing oft' the water at a higher point.-^ § 874. The same. The authorities already cited serve to illustrate the extreme liberalitj- which has usually char- acterized courts of equity in granting preventive relief for 24 Webb V. Portland Manufactur- ing Co., 3 Sumner, 189. Story, J., after stating that in actions of this nature, it is not necessary to shov\r actual, perceptible damage, a clear violation of the right being shown, observes: "But if the doctrine were otherwise, and no action were maintainable at law, with- out proof of actual damage, that would furnish no ground why a court of equity should not inter- fere and protect such a right from violation and invasion; for, in a great variety of cases, the- very ground of the interposition of a court of equity is, that the injury done is irremediable at law, and that the right can only be perma- nently preserved or perpetuated by the powers of a court of equity. And one of the most ordinary proc- esses to accomplish this end is by a writ of injunction, the naturo and efficacy of which for such purpose I need not state, as the elementary treatises fully ex- pound them. If, then, the diver- sion of water complained of in the present case is a violation of the right of the plaintiffs, and may permanently injure that right, and become, by lapse of time, the foun- dation of an adverse right in th& defendant, I know of no more fit case for the interposition of a court of equity, by way of injunc- tion, to restrain the defendants from such an injurious act. If there be a remedy for the plain- tiffs at law for damages, still that remedy is inadequate to prevent and redress the mischief. If there be no such remedy at law, then a fortiori, a court of equity ought to give its aid to vindicate and per- petuate the right of the plaintiffs. A court of equity will not indeed entertain a bill for an injunction in case of a mere trespass fully remediable at law. But if it might occasion irreparable mischief, or permanent injury, or destroy a right, that is the appropriate case, for such a bill." CHAr. XIV.] PEOTECTION OF EASEMENTS. 835 the protection of mill owners in their easements or privileges in the use of water for supplying their mills. As still further illustrating this tendency it is held that \vhere a mill owTier derives his title from the grantors of defendants, and by the terms of his grant he is entitled to a sufficient quantity of water from defendants' dam for the use of his mill and works, he may have an injunction to restrain de- fendants from depriving him of the quantity of water to Avhich he is entitled under his grant. But in such a case plaintiff himself may be enjoined from using the water for the purpose of running additional machinery not necessary to the use of his mill as it had been formerly used.-^ And the owner of a mill who is entitled under his grant to the use of water from a reservoir erected by his grantors, may enjoin a subsequent grantee under the same grantors of the land covered by such reservoir from destroying it and from doing any act wdiich would materially diminish the supply of water, or which w^ould interfere with its flow upon plaintiff's premises.^^ So the owner of a water-power created by a dam erected in improving the navigation of a river, who is entitled to the surplus water above what is required for purposes of navigation, may restrain riparian proprietors from drawing water from the dam without au- thority.-'^ So the owner of a mill which is supplied with W'ater from a creek may enjoin a diversion of the water from such creek by a railway company conducting the water through pipes for the supply of its engines, when such diversion materially diminishes the grinding power of plain- tiff's mill.28 And the extension by defendants of a ditch 2^ Comstock V. Johnson, 46 N. Y., N. W., 529, 36 N. W., 828. See also 615. See also Valley P. & P. Co. v. Fox River F. & P. Co. v. Kelley, West, 58 Wis., 599, 17 N. W., 554. 70 Wis., 287, 35 N. W., 744. 26 Simmons v. Cloonan, 2 Lans., 28 Garwood v. New York C. & H. 346. , R. R. Co., 17 Hun, 356. But under 27 Green Bay & M. C. Co. v. Kau- the statutes of West Virginia it is kauna W. P. Co., 70 Wis., 635, 35 held, that where one has granted 836 INJUNCTIONS. [chap. XIV. in such manner as to draw off the waters of a lake at high water, the lake being the source of supply for plaintiff's mills, affords sufficient ground for an injunction to restrain such extension and diversion of the water.^'J Where, how- ever, plaintiff's are mill owners upon a basin communicating with a public canal, but without title or prescriptive right as against the state, they will not be permitted to enjoin the canal commissioners of the state from closing such basin, even though the privilege of which they are thus deprived is of great value.^" § 875. Detention of water from factory. An unreasonable use or detention of water by defendant operating a saw- mill upon a stream above plaintiff"s factory affords suf- ficient ground for an injunction as a violation of plaintiff' 's easement in the stream. And when defendant so operates his mill as to wholly deprive plaintiff'* of water for the use of his factory for several of the working hours of each day, and then permits the water to flow in such unusual quantities that plaintiff can only use a small portion of it, thus caus- ing constant interruption to plaintiff's factory, an injunction will be alio wed. ■'^1 § 876. Underground channels. The use of water in a well upon one's own premises wall not be restrained because it is alleged that plaintiff' is thereby deprived of water in his well or spring upon adjoining premises, when it is not shown how he is thus deprived, the channel, if any, being underground, or the result of percolation through the soil. to a railway company the right to pany, and no averment that the construct its road through his owner can not be adequately corn- land, and afterward seeks to en- pensated in damages. Chesapeake join the company from cutting a & Ohio R. Co. r. Bobbett, 5 West channel through his land so as to Va., 138. divert the waters of a creek from -"■' Bennett r. Murtaugh, 20 plaintiff's mills and property, an Minn., 151. injunction will not be allowed -" Burbank v. Fay, 5 Lans., 397. when the hill contains no aver- -» Pollitt v. Long, 5*? Barb., 20. raent of the insolvency of the com- CHAP. XIV. J niOTECTION OF EASEMENTS. 837 The law of surface water is inapplicable to such cases and the owner is entitled to the advantages of his own land, and can not know that the water supplying his well percolates through another's land."- And a distinction is drawn be- tween cases where the owner of lands in the use of his own premises makes excavations which result in draining off the water from plaintiff' 's well upon adjacent premises, and cases where such conduct results in depriving plaintiff' of the use of water flowing in a well defined channel through plain- tiff' 's premises; and while in the former class of cases it is held that such excavations may be properly made, in the latter equity will interfere by injunction.''^ If, however, defendants in sinking a well upon their own premises in- tercept a subterranean stream w^hich supplies plaintiff's land, they may be restrained from so operating their well as to deprive plaintiff of his supply of water, the quantity of water being ample for both parties by a proper adjustment of pipes in defendant's well.^^ § 877. Mining ditch ; ditch for drainage ; drav^ring off water from navigable river. When the easement consists in the right to the use of water flowing through a ditch for mining, agricultural and other purposes, an unauthorized diversion of the water may be prevented by injunction.^"' So when the bill avers the ownership by plaintiff's of a ditch used for the purpose of conveying water to> their mining claims, and that they have been in its actual and ■5^ Roath V. Driscoll, 20 Conn., Co., 70 Ga., 86; Graham c. Dah- 533; Ocean Grove Camp Meeting lonega G. M. Co., 71 Ga., 296; Association (■. Commissioners, 40 Moore v. Clear Lake Water Works, N. J. Eq., 447, 3 Atl., 168; Hougan 68 Cal., 146, 8 Pac, 816; Spargur V. Milwaukee & St. P. R. Co., 35 v. Heard, 90 Cal., 221, 27 Pac, 198; Iowa. 558. Mott v. Ewing, 90 Cal., 231, 27 Pac. :iy Grand Junction Canal Co. v. 194. And see these last two cases Shugar, L. R. 6 Ch., 483. as to the necessity of proving 34 Burroughs v. Saterlee, 67 damages in injunction suits Iowa, 396, 25 N. W., 808. brought for the protection of ease- as Imboden v. Etowah & B. B. M. ments in water. 838 ixjuxcTioxs. [chap. xiy. peaceable possession for many years, using it for mining purposes ; that at the time the ditch was located the land over which it passes was vacant and unlocated, and that plaintiffs' rights in the premises are prior and paramount to any that defendants have in the land upon the line of the ditch, which averments are not traversed by the answer, it -is proper to enjoin defendants from destroying or interfer- ing with the ditch.^*^ But where plaintiffs are the owners of a ditch used for mining purposes and entitled to the un- obstructed use of the water flowing through it, and seek to enjoin defendants from mining operations upon the stream above plaintiffs' ditch, upon the ground of injury to the ditch by filling it with sand and sediment, an in- junction will be refused when defendants are solvent and able to respond in damages at law.^^ So wher-e plaintiffs, for the purpose of draining a pond of surface water upon their laud, had dug a ditch over defendant's lands, under a parol license from defendant which he afterward revoked and then proceeded to fill up the ditch, it was held that he could not be enjoined from so doing when it was not shown that the filling of the ditch would interrupt the natural flow of the surface water as it flowed before the ditch was dug; and that plaintiffs could acquire no pre- scriptive right to the use of the easement in such case, since its enjoyment and user were not adverse, but permissive.^s And it has been held that the drawing off of water from a river, to such an extent as to interfere with and impede navigation, affords no ground for an injunction.^'-^ § 878. Supply of water from other premises. One who purchases land subject to the burden of a continuous ease- ment, such as the right to the flow of water therefrom for the supply of another's house, will be enjoined from de- 3« Gregory t\ Nelson, 41 Cal., 278. •''>' Fryer v. Warne, 29 Wis., 511. ST Atchison v. Peterson, 1 Mont., "•» Attorney - General v. Great 561. Eastern R. Co., L. R. 6 Ch., 572. CHAP. XIV.] PROTECTIOX OF EASEMENTS. 839 priving the latter of the benefit of the easement by divert- ing the flow of the water in such manner as to deprive his house of its suppl}'.^*^ So plaintiff, having an easement in the flow of water through an artificial raceway over and upon defendant's premises, may enjoin defendant from di- verting the water or interfering with or obstructing its flow.^^ And a municipal corporation, which is authorized by law to appropriate water from a private stream for the use of the municipality and which has constructed works for this purpose, may restrain the obstruction of and diver- sion of the water from the stream.^^ And where plaintiff by virtue of an express grant has an easement in the use of water as conducted from defendant's premises for manu- facturing purposes, with the right to enter upon the servient estate to construct and repair the necessary pipes and con- nections for supplying the water, or to dig other springs and construct other water-courses, the grantor having cov- enanted not to use the water so as to unnecessarily inter- fere with such easement, defendant may be enjoined from iinnecessary and useless excavations upon his own premises which result in diminishing the supply of water for plaintiff's manufactory. In such case, the acts of defendant being in derogation of his grant and in violation of his covenant, and resulting in irreparable injury to plaintiff, an injunction is the appropriate remedy.^^ So plaintiff, having an easement implied by grant from the defendant in the flow of water from a stream upon defendant's land, which is essential to the full enjoyment of the estate conveyed, may enjoin de- fendant from interfering with the continuous flow of the 40 De Luze r. Bradbury, 10 C. E. *3 Johnstown C. M. Co. v. Veghte, Green, 70. 69 N. Y., 16. But in this case the •ti Johnston r. Hyde, 33 N. J. Eq., grant was of the use of the water 632; Fulton r. Greacen, 36 N. J. as then conducted from the springs Eq., 216. and streams on the grantor's 42 Haupt's Appeal, 125 Pa. St., lands. 211, 17 Atl., 436. 840 INJUNCTIONS. [chap. XIV. water.*^ So where the owner of premises conveyed them by deed, reserving the right to take all the waste water running by an aqueduct from a spring into a tub upon the prem- ises to other premises owned and held by him, and reserv- ing also the right to dig up and repair the aqueduct, he was allowed to enjoin subsequent grantees from obstructing him in his easement, and from interfering with or inter- rupting him while repairing the aqueduct.^'^ Where, how- ever, the grant is only of the right to use and lead to the grantee's house the water from a particular spring upon the premises of his grantor, the latter will not be enjoined from digging another spring upon his own premises, although it may injure the quality and reduce the quantity of -water supplied to the grantee from the former spring.'*^ § 879. The same. It is also to be noticed that the preven- tive relief extended by courts of equity in cases of ease- ments in water is not confined to the protection of the grantee of the easement, but may be exercised against him for the purpose of restraining an undue use of the water in excess of the terms of his easement. And where defendant has an easement or grant of the privilege of drawing watei* from a spring upon plaintiff's premises through a pipe of a given diameter, he may be enjoined from using a larger pipe than that authorized by the express terms of the grant.-*''' So an injunction will lie to prevent a lessee of a specific quantity of water from using the water in excess of the amount authorized by the lease, the value of such use be- ing difficult of ascertainment.^^ 4t Paine v. Chandler, 134 N. Y., ••••Bliss r. Greeley, 45 N. Y., 67J. 385, 32 N. E., 18, 19 L. R. A., 99. And see Trustees r. Youmans, 45 4.-. Hill V. Shorey, 42 Vt., 614. N. Y., 362, affirming S. C, 50 And it is also held in this case Barb., 316; Mosier r. Caldwell, 7 that plaintiff is entitled to a decree Nev., 363. in the same cause for the damages ■*' Markham r. Stowe, 66 N. Y., sustained by reason of the wrong- 574. ful interference with and obstruc- *« Lawson v. Menasha W. W. Co., tion of his rights. 59 Wis., 393, 18 N. W., 440. CHAP. XIV.] PROTECTIOX OF EASEMENTS. 841 §880. Joinder of plaintiffs. As regards the joinder of parties plaintiff in actions of this nature, it is held that own- ers in severalty of different tracts or premises upon a mill stream, who are operating mills thereon, may maintain an action to restrain the improper diversion of water to the injury of their mills. In such case, although the titles are different, yet the injury, being a common one, creates such a community of interest as to entitle them to join in the action.*^ § 881. Illustrations of the general doctrine. Although equity will restrain the use of water to the injury of an easement when plaintiff's right is clear and well established, it will not interfere when the right is doubtful and the facts are not definitely ascertained.^® So to warrant an injunc- tion against obstructing the flow of Avater for a mill, the bill must show such obstruction to be unlawful ; and mere general allegations that defendant has obstructed the water of the stream, thereby preventing complainant's mill from running, and that he will continue to do so, will not suffice.^^ Nor will equity interfere to settle and adjust the respec- tive rights of parties to the use of water, nor to determine how much each one is entitled to use, complainant not hav- ing established definitely what his rights are.^- And an injunction will not be granted when the right has not been long used by plaintiff, or established at law, and when it is in controversy between the parties.-'^-'' § 882. Canal company. Where one is entitled to a water- power supplied from a public canal, he can not by his OAvn *9 Reid V. GifEord, Hopk. Ch., -o Roath o. Driscoll, 20 Conn.. 416; Emery v. Erskine, 66 Barb., 533. 9. As to the right of one tenant 'ji Patten r. Marden, 14 Wis., 473. in common of water privileges to •'>2 Olmstead v. Loomis, 6 Barb., restrain a diversion of the stream 152; Howell Co. v. Pope Glucose see Lyth Creek W. Co. v. Perdad, Co., 171 111., 350, 49 N. E., 497. 65 Cal., 447, 4 Pac, 426. ■•■i Perkins r. Foye, 60 N. H. 486. S42 INJUNCTIONS. [chap. XIV. acts define or limit the right of the canal company to the use of the water, and a perpetiiaf injunction will be allowed against such an attempt.^^ And where a canal company- is entitled to all the waters of a creek with which to supply its canal, it will not be enjoined from increasing the height •of a dam which it has erected to turn the water into its canal, merely because a mill owner below the dam is de- prived of waj;er for his mill by thus increasing the height of the dam.'""'^ § 883. When injunction denied. Where complainant, hav- ing conveyed his mill site, has no use for the water him- self, but seeks an injunction evidently as a means of com- pelling defendant to make compensation for the use of the water, which might readily be had in an action at law, the relief will be withheld.^*^ And an injunction will not lie to restrain lessees from the erection of works whereby water will be drawn off and used in a manner different from that specified in the lease.^" § 884. Effect of acquiescence as an estoppel. One who has by his own acts consented to or acquiesced in the use of water in a particular manner will be estopped from after- ward enjoining its use in that manner. Thus, where com- plainant without objection has stood bj^ and allowed de- fendant to erect a mill in violation of the terms of his grant to defendant of the right to use the water in a particular manner, he is by his silence debarred from any relief against such diversion of the water."'^ And where defendants, rely- ing upon a verbal assurance that they would be allowed to ■'iETie Canal Co. r. Walker, 29 ss Jacox v. Clark, Walk. (Mich), Pa. St., 170. 249. But see as to the distinction •'•'' Spangler's Appeal, 64 Pa. St., between laches and acquiescence 387. as affecting the right of a riparian r.c, W'arne v. Morris C. & B. Co., 1 owner to protection by injunction Halst. Ch., 410. in the flow of water to which he •'■' Society v. Butler, 1 Beas., 499, is entitled, Lux v. Haggin, 69 Cal., reversing S. C, lb., 204. 255, 10 Pac, 674. CHAP. XIY.] PROTECTION OF EASEMENTS. 843 •draw water for a mill from a lake whose outlet ran through complainant's land, have erected their mill without objection from complainant, he will not be allowed to enjoin the taking of water from the lake for the use of such mill.-^^ So where one has permitted the use of water in a certain man- ner for twenty years, and has received compensation for such use, he will be estopped from relief by injunction.^"' Nor in such ease is the insolvency of the defendant a suffic- ient cause for the interposition of equity, since insolvency, although often influencing the court, does not of itself authorize the injunction.*'^ So plaintiff's acquiescence for a period of seven years in the diversion of water, to the use of which he is entitled, has been held a sufficient bar to relief b}' injunction.*'- And property owners upon a stream used for rafting logs, who have for a long series of years acquiesced in the maintenance of certain booms in the stream by a defendant corporation which has invested large sums of money in its enterprise, will not be permitted to enjoin the maintenance and operation of such booms. ^^ § 885, The same. Upon similar principles it is held that long acquiescence on the part of the proprietors of a water- power in a certain measurement of water to. which defend- ants are entitled will preclude the proprietors from obtain- ing relief by injunction against such measurement or use of the water, especially where erections have been made by defendants at considerable expense, which would be almost a total loss in case the injunction should be granted.*'* So ac- quiescence on the part of plaintiffs in the deprivation of water, which they afterward seek to enjoin, may estop them from obtaining relief in equity. Thus, where defendants 59 Payne c. Paddock, Walk. ^^ Pennsylvania R. Co.'s Appeal, {Mich.), 487. 125 Pa. St.. 189, 17 Atl., 478. 60 Heilman r. Union Canal Co., «" Power's Appeal, 125 Pa. St., 37 Pa. St., 100. 175, 17 Atl., 254. 61 Heilman r. Union Canal Co., «* Blanchard v. Doering, 23 Wis., 37 Pa. St., 100. And see, ante, § 18. 200. 844 INJUNCTIONS. [chap. XIV. were entitled by an act of parliament to nse water from plaintiffs' canal for a particular purpose, but for no other, and they had been for many years permitted by plaintiffs to use the water for other purposes, and plaintiffs then sought to enjoin such use, an interlocutory injunction was refused, even though plaintiff's had established their right by an action and judgment at law.^^ And when it is sought to enjoin defendants from keeping their dam closed in such manner as to prevent the flow of water to plaintiff's mill, but plaintiff' has delaj^ed proceedings for a period of more than three years after the erection of the dam, he will not be allowed an injunction. And the fact that the damages sustained may be recoverable at law aff'ords additional ground for refusing equitable relief in such case.^^ So when the owner of mills and of a water-power, with full know- ledge of the facts, has long acquiesced in the diversion of water from the stream for the use of a city, an injunction may be properlj' refused.*^" And where a mill owner, claim- ing the right to the unobstructed flow of the water of a river, has, by his unreasonable delay in the assertion of his rights, made it impossible or very difficult for the court to enjoin the diversion of the water without causing great in- jury to the defendant and to the public at large, relief by injunction will be denied and the plaintiff will be left to his remedy at law.''"'^ «5 Rochdale Canal Co. r. King. "s Flsk v. City of Hartford, 70 2 Sim. N. S., 78. Conn., 720, 40 Atl., 906, 66 Am. St. «6 Varney v. Pope, 60 Me., 192. Rep., 147. <•'-! City of Logansport v. Uhl, 99 Ind., 531. CHAP. XIV.] PROTECTION OF EASEMENTS. 845 IV. Rights of Way. § 886. Governing principles. 887. Action at law to determine right. 888. Right by prescription protected; right must be clear. 889. Verbal license. 890. Right of way to stable. 891. Representations of grantor as an estoppel. 892. Right of way in alley. 893. Access to lot in cemetery. 894. Purchaser with notice bound; establishing boundaries by agree- ment; obstruction to tow-path. 895. Relief against heirs of grantor; non-user. 896. Mandatory injunction. 896a. Obstruction to passage way under railroad. 896&. Right of passage through rooms; stairway. 896c. Easement arising from sale with reference to plat. § 886. Governing- principles. Equity will protect the enjoy- ment of a right of way over a street, alley or road by restraining the erection of obstructions thereon, the inter- ference being based upon the irreparable injury to the per- son aggrieved, and the inadequacy of the remedy at law.* But the facts showing such irreparable injury must be stated in the bill, and mere allegations will not suf- fice.- Where, however, complainant alleges a prescriptive right of way over defendant's land to a public road and to a market, and that he has no other means of outlet except a circuitous and inconvenient route, he makes out a sufficient 1 Roman v. Strauss, 10 Md., 89; W., 740; Cihak v. Klekr, 117 111., McConnell v. Rathbun, 46 Mich., 643, 7 N. E., Ill; Newell v. Sass, 303, 9 N. W., 426; French v. 142 111., 104, 31 N. E., 176; Smith Smith, 40 N. J. Eq., 361, 3 Atl., v. Young, 160 111., 163, 43 N. E., 130; Nicholls v. Wentworth, 100 486; Lowery r. City of Pekin, 186 N. Y., 455, 3 N. E., 482; Avery v. 111., 387, 57 N. E.. 1062, 51 L. R. A., N. Y. C. & H. R. R. Co., 106 N. Y., 301. 142, 12 N. E., 619; Gorton v. Tif- ^ Roman v. Strauss, 10 Md., 89. fany, 14 R. I., 95; Chance v. East And see Amelung v. Seekamp, 9 Texas R. Co., 63 Tex., 152; De- Gill & J., 468. vore V. Ellis, 62 Iowa, 505. 17 N. 846 INJUNCTIONS. [chap. XIV. ease of irreparable mischief to entitle him to a injunction.^ So a private way of necessity over defendant's land, implied by grant, as the only means of connection between plaintiff's land and a public highway will be protected by injunction.'* So the relief will be allowed for the protection of a right of way created by express grant.^ So an easement in a pri- vate alley, created by mutual covenants in the deeds by w^hich the co-owners of land have divided it in severalty, is entitled to protection by injunction in behalf of one co-owner against those claiming under the other.^ And a court of equity having jurisdiction over the parties may enjoin a defendant from interference with an easement or right of way belonging to plaintiff', although the property in ques- tion is situated in another state.'^ And upon a bill by a vendee of lands for a specific performance of an agreement by the vendor to convey a right of way leading to the lands, in question over other lands of the vendor, it is proper t» enjoin the latter from obstructing the right of way, plain- tiff's right to a specific performance being clearly shown.^ And in order to entitle the plaintiff' to relief, it is not neces- sary that the easement or right of way should be absolutely essential to the enjoyment of the estate but it is enough if the right claimed is highly beneficial.'-^ A clear and un- doubted right should be shown to warrant the exercise of the jurisdiction, and if the right be doubtful a decree will be withheld until it is established at law.^'^ Even though the 3 Shipley r. Caples, 17 Md., 179. "Alexander v. Tolleston Club, •*Jay V. Michael, 92 Md., 198, 48 110 111., 65. Atl., 61. s Russell i\ Napier, SO Ga., 77, I ■' Herman v. Roberts, 119 N. Y., S. E., 857. 37, 23 N. E., 442, 7 L. R. A., 226, •■> Cihak r. Klekr, 117 111., 643.. 16 Am. St. Rep., 801. And see this 7 N. E., Ill; Newell v. Sass, 142 case as to the form of the injuno- 111., 104, 31 N. E., 176; Smith c. tion. Young, 160 111., 163, 43 N. E., 486. 'i Yeager ;;. Manning, 183 111., i" King r. McCully, 38 Pa. St., 275, 55 N. E., 691. 76; Wakeman v. New York, L. E. & W. R. Co., 35 N. J. Eq., 496. CHAP, XIV. J PROTECTION OF EASEMENTS. 847 right of way be admitted and its obstruction be also ad- mitted, the court will not therefore interfere to restrain such obstruction, but may in its discretion refuse the relief. ^i Nor will the court interfere when the proof is so indefinite that the right of way claimed can not be accurately determined.^ 2 Nor will the relief be granted where the right of way in which the easement is claimed is of no practical value to the plaintiff, and in such case he will be left to the pursuit of his remedy at law for the vindication of his naked legal rights.^ ^ And in any event, the injunction, when granted, should be merely co-extensive with the duration of the easement claimed, and should not be perpetual unless the easement itself is so.i"^ § 887. Action at law to determine right. By analogy to^ the rule that equity will not interfere to. restrain a tres- pass pending a trial at law to determine the right, where no irreparable injury is shown, in the absence of such injury it will not enjoin an obstruction of a right of way pending- an action at law to determine the right.^^ And in such case the mere allegation in the bill of irremediable damage will not suffice, but the facts must appear which show that the apprehension of such injury is well founded.^*^ And when a statute forbids the granting of injunctions against the erection or use of public works until the question of damages has been decided by a court of common law, an injunction will not be allowed a claimant of a right of way over land regularly appropriated by a city for public purposes, where no proceedings at law have been instituted.!'^ But when there is no reasonable doubt of plaintiff's legal title, and the 11 Clack V. White, 2 Swan, 540. i* Yeager v. Manning, 183 111., 12 Fox V. Pierce, 50 Mich., 500, 275, 55 N. E., 691. 15 N. W., 880. 1"' Amelung v. Seekamp, 9 Gill & 13 Seeger v. Mueller, 133 111., 86, J., 468. 24 N. E., 513; Gulick x\ Fisher, i« Id. 92 Md., 353, 48 Atl., 376. 1^ Wolbert v. Philadelphia, 4S Pa. St., 439. 848 INJUNCTIONS. [chap. XIV. obstruction to the right of way is clear, it is proper to enjoin in the first instance, without requiring plaintiff to establish his right in an action at law.^^ § 888. Right by prescription protected ; right must be clear. A right of way may be acquired by prescription which will be protected in equity.^'-' And a bill alleging a right of way over adjacent premises confirmed by forty years' use, and which defendants have obstructed and destroyed, contains sufficient equity to warrant an injunction. The injury in such case is considered as not susceptible of reparation in damages, and one whose continuance must work a constantly recurring grievance, as well as an interruption to the quiet and long continued enjoyment of the easement annexed to complainant's private estate.^o But to justify relief, the plaintiff' 's right must be clear, and in the absence of satis- factory proof that the user by the plaintiff' was adverse, the injunction should be denied.-^ § 889. Verbal license. Where the owner of land has given verbal permission for the construction of a road or right of way through a portion of his premises, the grantee of such privilege or easement will not be restrained from exercising it merely because the owner of the premises has changed his mind and desires to revoke the privilege. -- § 890. Right of way to stable. The owner of an inn, hav- ing a right of way to his stable in the rear, over the land of an adjacent owner, may have the aid of equity to restrain defendants from ])locking up or obstructing such right of way. And the fact that the obstruction is caused by several persons, and that the amount or degree of obstruction caused by each, individually, may not of itself afford ground of i«Mulville V. Fallon, I. R. 6 Eq., West Va., 282, 21 S. E., 1020. 458. 20 Webber v. Gage, 39 N. H., 182. 1" Shipley v. Caples, 17 Md., 179; 21 Gulick v. Fisher. 92 Md., Z5^. Webber v. Gage. 39 N. H.. 182; 48 Atl., 376. Sheeks r. Erwin. 130 Ind.. 31, 29 2l' Lexington & O. R. Co. r. Orms- N. E., 11; Boyd r. Woolwine, 40 by. 7 Dana, 27G. CIIAl'. XIV.] I'KOTIX'TIOX OF KASKM KNTS. 849 complaint, will not previ-nt the relief as ayainst the obstruc- tion caused by all.--"* § 891. Representations of grantor as an estoppel. It may also happen that a vendor of real property is estopped by his own representations or acts from obstructing an easement or right of way enjoyed by his vendee, and such estoppel may constitute sufficient ground for relief by injunction. For example, when the owner of two adjoining lots sells one of them, representing to his vendee that there is an alley be- tween them, the joint use of which will be conveyed with the lot sold, and the vendee pays an increased price, relying upon such representation, the grantor may be enjoined from obstructing such alley, although it is not mentioned in the conveyance.-^ So when the vendor of a lot agrees by parol that an adjoining strip of land upon his own premises shall be opened as a street for the use of the grantee and the public, and the street is so opened and used for several years, an easement exists in favor of the purchaser, and his grantee may enjoin the vendor from obstructing and closing up the street.--'' And where plaintiif's have bought lots from defend- ant adjoining a park which was laid out and dedicated by defendant, plaintiffs having a perpetual easement in and right of way over the park may enjoin defendant from de- stroying the trees and shrubbery in such park and from lay- ing it out in building lots and selling them.-^ § 892. Right of way in alley. Where plaintiffs own real estate in a city, adjacent to an alley over which they have an easement or right of way, the alley being the only means of access to the rear of their lots except through their dwell- ings, and defendant, claiming title to the premises under de- fective and void tax sales, is about to erect a building upon ^3 Thorpe v. Brumfitt, L. R. 8 ■^■' Newman v. Nellis, 97 N. Y., Ch., 650. 285. ^* Kirkpatrick v. Brown, 59 Ga., ^« Morris v. Sea Girt L. I. Co., 38 450. N. J. Eq., 304. 54 850 INJUNCTIONS. [chap, XIV. the alley, it is proper to grant an injunction restraining such erection upon condition of payment by ,plaintiffs to defend- ant of the amount actually paid by him for the tax titles, with legal interest.^^ So the obstruction of plaintiff's right of way in an alley may be enjoined when such obstruction deprives him of the use of the alley and thereby materially lessens the value of his property.^s And in such case, the fact that plaintiff has previously made some encroachments upon the alley will not estop him from relief in equity.-** Where, however, the encroachment upon plaintiff' 's right of way in an alley between his premises and those of defendant is very slight and will not seriously interfere with or impair the right of way, the court may properly regard the relief sought as disproportioned to the injury complained of, and may, therefore, decline to interfere.^^. Nor will defendants be enjoined from building upon their own premises in such manner as to obstruct an easement or use of an alley claimed by plaintiff, when defendants have bought without notice,, either actual or constructive, of such easement.^^ § 893. Access to lot in cemetery. The owner of a lot pur- chased for burial purposes in a cemetery, who has made his purchase with reference to certain avenues and streets as. platted, is entitled to the aid of an injunction to prevent the obstruction of an avenue leading to his lot by the erec- tion of tombs and monuments therein. And the relief is. 2- Kean v. Asch, 12 C. E. Green, Smith r. Young, 160 111., 163, 43 57. As to the right of the owner N. E., 486; Yeager v. Manning, of a house abutting upon a pri- 183 111., 275, 55 N. E., 691. vate alley, having an easement or -^ Schaidt r. Blaul, 66 Md., 141, right of passage therein appurte- 6 Atl., 669. And see this case as nant to his premises, to restrain to the effect of plaintiff's acqui- its obstruction, see Stallard v. escence upon his right to relief in Gushing, 76 Cal., 472, 18 Pac, 427. equity. 2>* Schaidt v. Blaul, 66 Md., 141, ■■" Hall r. Rood, 40 Mich., 46. 6 Atl., 669; Cihak v. Klekr, 117 ••'•i Kicklighter o. Rosenthal, 74 111., 643, 7 N. E., Ill; Newell v. Ga., 151. Sass, 142 111., 104, 31 N. E., 176; CHAP. XIV.] PKOTECTION OF EASEMENTS. 851 proper in such a case, whether plaintiff be regarded as hav- ing an absolute title, or only a servitude. ^- § 894. Purchaser with notice bound ; establishing boundaries by agreement; obstruction to tow-path. Equity may properly enjoin an obstruction to a right of way over real property as against a subsequent purchaser, although the instrument granting the right be not recorded, provided such purchaser acquired his title with full knowledge of the easement.^^ So purchasers, who buy with full notice of an easement or right of way may be enjoined from obstructing such right, even though it rests only in parol, it having been accepted and acted upon and money having been expended in improving it by the licensee acting in good faith.^^ And relief may be granted against a subsequent purchaser w^ho is chargeable with notice of the record of the instrument creating the easement, al- though no reference is made to the covenant in the mesne conveyances.^^ And when one purchases lots fronting upon a private way or street, with the right of way thereon, sub- ject to a like right in the grantor, the latter may be enjoined from cutting down the grade of the street to the injury of the grantor.^^ So the owners of adjacent wharves having covenanted that an intervening dock should be kept open as a common passage way, without obstruction or impediment, the lessees of one of such wharves may be restrained from violating the covenant by permitting vessels to lie at their dock in such manner as to project into the common passage way.2" So where the owners of adjoining lands, by mutual agreement, definitely establish the boundaries of a private way which had been previously located along their line, and appropriate the strip of land between such boundaries to be 32 Burke r. Wall, 29 La. An., 38. 36 Kelley r. Saltmarsh, 146 Mass., 33 McCann r. Day, 57 111., 101. 585, 16 N. E., 460. 34 Simons v. Morehouse, 88 Ind., 37 cdmmercial Wharf Co. v. Win- 391- sor, 146 Mass., 559, 16 N. E., 560. 35Yeager v. Manning, 183 111., 275, 55 N. E., 691. 852 INJUNCTIONS. [chat. XIV. used for the mutual benefit of the abutting property, and, in pursuance of the agreement, afterward erect fences along the boundaries so agreed upon and thereafter use the strip as a private way, an easement in such strip is thereby created, the obstruction of which by a purchaser with notice from one of the original owners may be enjoined by a pur- chaser from the other owner.^^ And an obstruction to a towing-path along a private canal, to which plaintiff is en- titled, may be enjoined.^'* §895. Relief against heirs of grantor; non-user. When one conveys real property reserving to his grantee a right of passage over the grantor's premises for the purpose of carrying away filth from the premises conveyed, the grantee is entitled to an injunction against the heirs of his grantor to restrain them from obstructing the passage. ^^ And equity will protect a right of way by injunction although there may have been for a period of many years a non-user of the right, if plaintiff had resumed it before the doing of the acts complained of as an obstruction to the easement. +^ § 896. Mandatory injunction. Where defendant had per- sisted in erecting an obstruction to plaintift"s right of way after full notice of the right and after suit begun for an injunction, and the court upon the hearing found plaintiff' entitled to the injunction, it was made mandatory and de- fendant was ordered to remove within a given time the erec- tions made since the commencement of the suit; and this, even under a statute authorizing the court in its discretion to award pecuniary damages to the person injured in lieu of an injunction.-*- And a right of way over defendant's land arising by prescrii)tion may be protected by mandatory injunction rcciuii'ing the removal of the obstruction com- plained of.*^ s« Shields v. Titus, 46 Ohio St.. ■»' Cook r. Mayor. T... R. 6 Eq., r,28. 22 N. E., 717. 177. •■'•!• Selby r. Nettlefold, L. R. '.» '-' Krehl r. Burrell, 7 Ch. D., 551. (^h 111 ' ' ■• Boyd r. Wool wine, 40 West • ''Kraut's Appeal, 71 Pa. St.. t;t. Va., 282, 21 S. E.. 1020 <;HAP. XIV. j I'HOTECTIOX OF EASEMENTS. 853 § 896 a. Obstruction to passage way under railroad. Where a land owner has conveyed a right of way to a railway com- pany, upon its agreement to construct and maintain a pas- sage way for teams and cattle under the railroad, and such way has been constructed and used for many years, the land owner may enjoin the filling up of the way by a com- pany which has succeeded to the rights of the former com- pany under foreclosure proceedings.^"* § 896 b. Right of passage through rooms ; stairway. As between different tenants occupying different portions of the same building, one who has long enjoyed and exercised- an easement or right of passage through the other's rooms; to obtain access to a heater used in warming the building may enjoin an interruption by the other tenant in the use of such easement.'*'^ But a widow, having a dower interest in the half of a building and claiming an easement in a stair- way upon the other half of the building, has been refused an injunction to prevent the removal of such stairway by the owner.^*^ § 896 c. Easement arising from sale vdth reference to plat. Where the original proprietor of a subdivision makes a plat dividing the land into lots, blocks and streets and afterwards sells and conveys lots with reference to the plat, a right in the nature of an easement arises in favor of all subsequent purchasers of property fronting upon the streets to have them at all times kept free and unobstructed; and the erec- tion of a bridge over the highway by one owning buildings upon both sides will be enjoined as an unlawful interference with such right.-*^ ** Swan (;. B., C. R. & N. R. Co., 4« Scott r. Palms, 48 Mich., 505, 72 Iowa, 650, 34 N. W., 457. 12 N. W., 677. is Hodge D. Giese, 43 N. J. Eq., 47 Field v. Barling, 149 111., 556, 342, 11 All., 484. 37 N. E., 850, 24 L. R. A., 406. CHAPTER XV. OF INJUNCTIONS FOR THE PROTECTION OF FRANCHISES. I. Nature axd Grounds of the Relief § 897 II. Roads and Railways 912 III. Bridges 917 IV. Ferries 927 I. Nature and Grounds of the Relief. § 897. The general doctrine stated. 898. Establishing right at law. 899. Jurisdiction akin to that in nuisance; water company protected. 900. Right must be coupled with possession; negligence. 901. Former doctrine when grant not exclusive in terms; intend- ment in favor of exclusiveness. 902. Later doctrine averse to intendment. 903. Exclusive right to fishing protected. 904. Letters patent to maintain theatre. 905. Boom company. 906. United States courts may enjoin destruction of franchise; tax on franchise. 907. Fraudulent usurpation of corporate franchise. 908. Franchise to conduct lottery. 909. Written evidence of franchise, when required. 910. Exclusive right of navigating river. 911. Distinction between franchise and monopoly; gas companies. § 897. The general doctrine stated. The violation of fran- chises or special privileges conferred by legislative authority, either upon individuals or upon corporations, affords fre- quent occasion for invoking the extraordinary aid of equity by way of injunction to remedy evils which the usual modes of redress in courts of law are powerless to mitigate or to prevent. The value of a franchise being generally dependent upon its exclusive use and possession, it may be protected upon the ground of the inadequacy of the legal remedy and the probability of thus avoiding a multiplicity of suits. 854 CHAP. XV.] PROTECTIOX OF FEAXCHISES. 855 Where, therefore, the owner of the franchise is in actual possession and his title or right is not disputed, an in- junction is the proper remedy for protecting him in the exer- cise of the exclusive privilege granted him by statute.^ § 898. Establishing right at law. The former tendency of the English Court of Chancery seems to have been to re- quire plaintiff first to establish his right at law, before relief by injunction would be granted for the protection of his franchise.- But in this country the rule may now be re- garded as well established, that to warrant the interposition of equity for the protection of franchises it is not necessary that the owner of the franchise should have first established his right by action at law. The legislative power of the state having authority to grant the exclusive right which it is sought to protect, the granting of such right is regarded as equivalent to having established it at law.^ And where defendants are in the actual possession of a franchise or priv- ilege granted them by legislative authority, they will not be restrained in the exercise of such privilege at the suit of persons having no particular rights of their own, save a gen- eral right common to every citizen, and which it is claimed the franchise violates.^ §899. Jurisdiction akin to that in nuisance; water com- pany protected. In a general sense the relief afforded by 1 Piscataqua Bridge -v. New S. C, 4 Edw. Ch., 258; North Hampshire Bridge, 7 N. H., 35; River S. B. Co. v. Hoffman, 5 Hartford B. Co. v. East Hartford, Johns. Ch., 300; Livingston r. Van 16 Conn., 149; Enfield T. B. Co. v. Ingen, 9 Johns., 507; Auburn & Hartford & N. H. Co., 17 Conn., C. P. R. Co. v. Douglass, 12 Barb., 40; Gates v. McDaniel, 2 Stew., 553; Boston & L. R. Co. v. Salem 211; Lucas r. McBlair, 12 Gill & & L. R. Co., 2 Gray, 1. J., 1; McRoberts r. Washburne, 10 2 Whitchurch w. Hide, 2 Atk., 391, Minn., 23; Livingston /-. Ogden, 4 3 Moor v. Veazie, 31 Maine, 360; Johns. Ch., 48; Bi re Vanderbilt, Piscataqua Bridge v. New Hamp- Ib., 57; Ogden r. Gibbons, lb., shire Bridge, 7 N. H., 35. 150, affirmed 17 Johns., 488; -i Lansing r. North River S. B. Tyack v. Brumley, 1 Barb. Ch., 519; Co., 7 Johns. Ch., 162. 856 INJUNCTIONS. [CKAP. XV. courts of equity against the invasion of a franchise may be regarded as akin to that which is extended in cases of nui- sance, and the violations of right in the two classes of cases are closely analogous. And where the legislature has con- ferred an exclusive privilege or franchise, and the persons accepting it have long been in the exercise and enjoyment of all the rights thereby conferred, and have performed the duties imposed, any acts which tend to disturb them in their rights and to dispossess them of their franchise are in legal contemplation a nuisance, the only safe and adequate remedy for which is by recourse to equity.^ Thus, a water company, having the exclusive right or franchise of supplying water in a given localitj^ may enjoin a rival company from in- terference with such right." § 900. Right must be coupled with possession ; UGgligence. A distinctive feature of the relief in this class of cases is that the right for whose protection the aid of equity is invoked must be coupled with possession. While, therefore, courts of equity will entertain jurisdiction to prevent any unauthorized interference with a franchise where the person seeking relief is in actual possession, yet if possession be wanting the in- junction will be w'ithheld. So he who seeks an injunction for the protection of a franchise must be free from negligence in order to entitle himself to the relief. And where he has negligently failed to perform certain conditions annexed to the granting of his franchise by the legislative power, he will not afterward be allowed to enjoin the performance of ■• Boston & L. R. Co. r. Salem & « Williamsport W. Co. v. Lycom- L. R. Co., 2 Gray, 1; Boston Water ing G. & W. Co., 95 Pa. St., 3.5. P. Co. V. Boston & W. R. Co., 16 As to the considerations governing Pick., 512. The same principle is the court in refusing a preliml- recognized in Central B. Co. 7;. nary injunction in such case, see I>owell, 4 Gray, 474, although the Stein r. Bienville W. S. Co., 32 injunction was refused on other Fed., 876. grounds. CUAP. XV.| IM{OTECTION OF FRANCHISES. 857 those conditions by others authorized so to do by act of legislature^ §901. Former doctrine when grant not exclusive in terms; intendment in favor of exclusiveness. Not a little eonlliet of authority has existed upon the question whether equity may interfere by injunction for the protection of a franchise which is not made exclusive in its nature by the express terms of the legislative grant, and whether any intendment or presumption may be indulged for the purpose of giving an exclusive character to the grant w4iich the legislative power has not seen fit specifically or expressly to confer. The earlier doctrine upon this subject, which had the sanc- tion of no less an authority than Chancellor Kent, was, that although the franchise or grant to the citizen which it was sought to protect by injunction was not in terms exclusive, yet the element of exclusiveness might be attached to it by necessary implication and that the franchise should be so construed as to give it due effect by excluding all contiguous competition of an injurious character. And in conformity with this doctrine injunctions were allowed for the protec- tion of franchises resting in legislative grant, which by their terms were not exclusive.^ § 902. Later doctrine averse to intendment. The later and now generally received doctrine, however, is that legislative acts granting franchises to corporations are to be strictly construed in accordance with the terms of the grant, and that the grantee takes nothing by implication either as against the state, or as against other grantees of similar franchises from the state. In order, therefore, to warrant relief in equity against an invasion of or infringement upon " Enfield T. B. Co. v. Connecticut 5 John. Ch., 101. But the doctrine River Co., 7 Conn., 51. of these cases is overruled in Au- « 3 Kent's Com., 459; Croton Turn- burn & Cato Plank Road Co. v. pike Co. V. Ryder, 1 John. Ch.. 611 ; Douglass, 9 N. Y., 444. Newburgh Turnpike Co. v. Miller, 858 INJUNCTIONS. [chap, XV. the franchise, it must appear by the terms of the grant from the state that plaintiff is entitled to the exclusive enjoy- ment of the franchise in question ; and unless this element of exclusiveness appears in the grant itself, it will not be im- ported by implication. Unless, therefore, the grant of the franchise under which plaintiff claims is exclusive in its terms, equity will not interfere by injunction to restrain the operations of persons claiming the right to exercise a similar franchise under legislative authority.^ And since an exclusive franchise can not be implied from a legislative grant, in the absence of express terms whereby it is made exclusive, it follows that a legislature may rightfully create a franchise which will conflict with one previously created, if the first were not in express terms exclusive of all others. Thus, a railway company may be incorporated to run its road through the same valley with a canal previously incorporated, but whose charter is not exclusive in terms ; and if the termini of the railway are such as to require it to cross the canal, it will not be enjoined from the erection of bridges for that purpose.^ ^ And when a city grants to a street rail- way company the right to maintain and operate its railway in the streets, 'the city having no power to grant such a privilege in perpetuity to the exclusion of other companies, 9 Charles River Bridge v. War- Creek Turnpike Co. v. Davidson ren Bridge, 11 Pet., 420, Mr. Jus- Co., 3 Tenn. Ch., 396. See also tice Story and Mr. Justice Thomp- Crawfordsville & E. T. Co. v. son dissenting, affirming S. C, 6 Smith, 89 Ind., 290. In a note to 3 Pick., 376; Auburn & Cato Plank Kent's Com., 459, the learned com- Road Co. V. Douglass, 9 N. Y., 444, mentator concedes that the rule as reversing S. C, 12 Barb., 553, and contended for by him is subverted overruling Croton Turnpike Co. ?'. by the Charles River Bridge case, Ryder, 1 John. Ch., 611, and New- and admits vi^ith. expressions of re- burgh Turnpike Co. v. Miller, ^ gret that the doctrine of the latter John. Ch., 101; Tuckahoe Canal case is now the prevailing doctrine Co. V. Tuckahoe R. Co., 11 Leigh, in American constitutional law. 42; Fall v. County of Sutter, 21 lo Tuckahoe Canal Co. v. Tucka- Cal., 237; President v. Trenton C. hoe R. Co., 11 Leigh, 42. B. Co., 2 Beas., 46. But see White's CHAP. XV.] PROTECTION OF FRANCHISES. 859 a rival company will not be enjoined from constructing and operating a line through the same streets.^ ^ § 903. Exclusive right to fishing protected. An exclusive right of fishing in a river, which is derived and held under letters patent from the crown, is treated as a franchise of such a nature as to be protected in equity. And where, in such a case, plaintiff has established his right by a verdict at law, he is entitled to the aid of equity by injunction to restrain an interference with his exclusive right.^^ § 904. Letters patent to maintain theatre. Where under an act of parliament letters patent are issue by the crown to a citizen, authorizing him during a specified term to main- tain a theatre in a city, the statute prohibiting any person from acting within the city, except in such theatre as should be so established, under a penalty to be recovered by any person who sluuld sue for the same, it is held that the patentee, having no such right as would enable him to sue at law, and having only a right in common with others to sue for the penalty as a common informer, is not entitled to an injunction to restrain unauthorized persons from acting in a theatre for which no patent has been granted.^^ § 905. Boom company. When a corporation of a quasi public nature, such as a boom company, whose franchises are granted for the public use, is in the lawful exercise of such franchises in constructing and maintaining booms for receiv- ing logs upon a navigable river, an action can not be main- tained by a riparian owner to enjoin such corporation, since this would be in effect to allow a private action against the state itself to subordinate the paramount public right to the subservient private right. And if such corporation has 11 Birmingham & P. M. S. R. Co. 12 Ashworth v. Browne, 10 Ir. V. Birmingham S. R. Co., 79 Ala., Ch. 421. 465. And see Montgomery G. L. is Calcraft v. West, 2 Jo. & Lat., Co. r. City Council, 87 Ala., 245, 123. 6 So., 113, 4 L. R. A., 616. 860 INJUNCTIONS. [CIIAP. XV. SO constructed its works as to impede the navigation of the river, the remedy must be sought not in equity, but in an action at law for damages.^ ^ § 906. United States courts may enjoin destruction of fran- chise; tax on franchise. While as a general rule the courts of the United States have no jurisdiction to restrain pro- ceedings in the state courts,^ '^ they will grant an injunction against a public officer of a state to restrain him from such proceedings under a void statute of the state as are likely to destroy a franchise created by the United States.^^ But the fact that a tax has been illegally imposed upon a fran- chise does not of itself constitute sufficient foundation for relief by injunction. In this respect a tax upon a franchise does not differ from a tax levied upon any other species of property, real or personal, and a court of equity is governed by the same principles in granting or withholding an injunc- tion against taxation of a franchise as are applicable in all other cases where its aid is invoked to restrain the col- lection of revenues. If, therefore, the only equity in sup- port of the bill is the illegality of the tax imposed, the proper remedy is at law, and an injunction will not be al- lowed.^ '^ If, however, the injury is so irremediable in its nature as to render the legal remedy inadequate to redress the wrong complained of, as if there is danger of the destruc- tion of the franchise itself by the threatened enforcement of an unconstitutional tax, an injunction may properly be allowed.^ ^ 55 907. Fraudulent usurpation of corporate franchise. Wlicre parties are fraudulently possessed of the franchises !•* Cohn V. Wausau Boom Co., 47 And see Mechanics Bank r. Debolr., Wis., 314, 2 N. W., 546. 1 Ohio St., 591. !"• Diggs V. Wolcott, 4 Cranch, '^ Foote v. Linck, 5 McLean, 616; 179. Woolsey ;;. Dodge, 6 McLean, 142. ifiOsborn v. U. S. Bank, 9 These cases are based upon Osborn Wheat., 738. c- U. S. Bank, 9 Wheat, 738. '7De Witt V. Hays, 2 Cal., 463. CHAP. XV.] PROTECTIOX OF FRANCHISES. 861 of a corporation created by law, and are exercisin*:? its func- tions, a bill for an injunction will lie in behalf of the per- sons aggrieved as a matter of private right, and it is not necessary that proceedings be first had by the proper officer of the state to oust the corporation of its franchise. And it is competent in such case for any number of the stock- holders of the corporation to file a bill for an in junction. ^'^ But if no questions of private right are involved, the charge being of the usurpation of a franchise by a corporation assuming powers not within its charter, in direct contraven- tion of a public statute, equity will not interfere by in- junction, the proper remedy being by information in the nature of a quo warranto.-^ I'J Putnam v. Sweet, 1 Chand., 286. -0 Attorney-General v. Utica Ins. Co., 2 Johns. Ch., 371. This was an information filed by the Attor- ney-General to restrain defendant, an insurance company, from con- ducting a banking business in vio- lation of a statute prohibiting un- incorporated banking associations. The injunction was refused, Kent, Chancellor, observing: * * * "The right of banking was, form- erly, a common law right be- longing to individuals, and to be exercised at their pleasure. But the legislature thought proper, by the restraining act of 1804, and which has since been re-enacted, to take away that right from all persons not specially authorized hy law. Banking has now become a franchise derived from the grant of the legislature, and subsisting only in those who can produce the grant; if exercised by other per- sons, it is the usurpation of a priv- ilege, for which a competent rem- edy can be had by the public pros- ecutor in the Supreme Court. I can not find that this court has any or- dinary concurrent jurisdiction in the case. * * * The charge contained in the information sa- vors, then, CO much of a criminal offense that it would require a clear and settled practice to justify the interference of this court, when that interference is not called for in aid of a prosecution at law. The charge of an usurpation of a fran- chise has so frequently occurred, and the remedy by injunction is so convenient and summary, that the jurisdiction of this court would have been placed beyond all pos- sibility of doubt, and have been distinctly announced, by a series of precedents, if any such general jurisdiction existed. But I have searched in vain for this authentic evidence of such a power. The precedents are all in the court of K. B., and Kyd cites nearly an hundred instances, within the last century, of informations filed in the K. B. to call in question the exercise of a franchise." 862 INJUNCTIONS. [chap. XV.- § 908. Franchise to conduct lottery. Inadequacy of the remedy at law and the avoiding of a multiplicity of suits are strong grounds for the granting of injunctions to pro- tect statutory privileges of an exclusive nature. And a franchise to cany out a lottery scheme for a public purpose is so far exclusive as to come within this rule and to be entitled to protection by injunction. In such case the com- missioners appointed by law to carry out the purposes of the lottery are proper parties to institute an action in their own name to restrain a violation of the franchise committed to them; but the state is not a necessary party. -i § 909. Written evidence of franchise, when required. Where the existence of complainant's right or franchise de- pends upon a written instrument or contract, he will be re- quired to produce such written evidence, or in default there- of to assign some satisfactory reason for his failure. If he omits to produce such evidence and fails to assign any satis- factory reason for such omission, he will not be allowed an. in junction. -- § 910. Exclusive right of navigating- river. Legislative grants of the exclusive right of navigating rivers Avith steam- boats have been the subject of judicial construction, with reference to the question whether a franchise thus con- ferred is entitled to protection by injunction. Where such a franchise is granted by a state legislature, and it in no manner conflicts with the power of Congress under the con- stitution to regulate inter-state commerce, the franchise may be protected by injunction.-^ And in New York it was for- merly held that an exclusive franchise of this character was entitled to protection in equity, even in cases where it in- terfered with the right of navigation as between different states, and that citizens of another state might be enjoined 21 Lucas r. McBlair, 12 Gill & J., 22 Hankey v. Abrahams, 28 Md., 1. 589. 23 Moor V. Veazie, 31 Me., 360. CHAP. XV.] PROTECTION OF FBAXCHISES. 863 from interfering with the exercise of the right, although their vessels were duly licensed under the laws of the United States as coasting vessels. ^^ But upon appeal to the Supreme Court of the United States the doctrine of the New York courts was overthrown, and it was held that the acts of the state legislature granting the exclusive rights in ques- tion were repugnant to that clause of the constitution of the United States which authorizes Congress to regulate cora,- merce, and that relief by injunction should not be allowed; and this doctrine was afterward acquiesced in by the courts of New York.25 §911. Distinction between franchise and monopoly; gas companies. A distinction has been drawn between a franchise proper, granted by legislative authority upon adequate con- sideration, where the owner of the franchise is bound to the performance of certain obligations toward the public, and a mere monopoly of an ordinary branch of trade, over which the government has no exclusive prerogative, and where no consideration either of a public or private character is re- served for the grant. And while, as we have seen, the jurisdiction by injunction is freely exercised for the pro- tection of franchises, the grant by the government of a monopoly in the exercise of an ordinary business over which the government has no control, without any consideration and to the exclusion of all others desiring to engage in such business, will not be protected by injunction. Thus, where by an amendment to the charter of a gas company authoriz- ing it to lay its pipes through the streets and public grounds of a city, it is provided that the right shall be exclusive ex- cept against such other persons as may be authorized by 24 Livingston v. Ogden, 4 Johns. Co. v. Hoffman, 5 Johns. Ch., 300. Ch., 48; In re Vanderbilt, lb., 57; 25 Gibbons r. Ogden, 9 Wheat., 1; Ogden r. Gibbons, lb., 150, af- North River Steamboat Co. v. Liv- firmed 17 Johns., 488, but reversed, ingston, 3 Cow., 713. 9 Wheat., 1; North River S. B. SH-i INJUNCTIONS. [chap. XV. legislature, such provision is held to constitute a monopoly which is not entitled to protection in equity, and an injunc- tion will not be allowed to prevent another company from laying down its gas pipes. Nor will the fact that pending the controversy complainants have bought a parcel of land so situated with reference to the public highway that de- fendants are obliged to lay their main pipe through it, au- thorize an injunction in favor of complainants ; their volun- tary purchase of the land pendente lite does not entitle them under such circumstances to the favorable considera- tion of a court of equity, and the injury, if any, may be compensated by damages in an action of trespass.-** In Kentucky, however, a different doctrine prevails; and it is there held that when a gas company asserts the exclusive right under its charter of manufacturing gas in a city, equity may entertain jurisdiction of a bill to enjoin a rival company from interference with plaintiff's rights, the juris- diction resting upon the necessity of preventing cloud upon title.-'^ It is also held in Kentucky that an injunction is the appropriate remedy to prevent a city, which has by con- tract conferred upon a gas company an exclusive right in the streets for a term of years, from conferring a like priv- ilege upon another company.-^ But a gas company, supplying gas to a city, can not restrain a rival company from furnish- ing gas upon the ground that the latter is supplying a poorer quality of gas than required by the law under which it is incorporated.-" And when the franchise claimed is that of an exclusive right to lay pipes in the streets for sup- plying water to a city, but the legal right is disputed and has never been determined, a preliminary injunction will be refused.*''® 2" Norwich Gas Light Co. r. Nor- 20 Jersey City G. Co. v. Consum- wich City Gas L. Co., 25 Conn., 19. ers G. Co., 40 N. J. Eq.. 427. 2 ^7 Citizens G. L. Co. r. Louisville Atl., 922. G. Co.. 81 Ky., 263. :■" Atlantic City W. W. Co. v. !^N City of Newport r. Newport L. Consumers W. Co., 44 N. J. Bq., Co., 84 Ky.. 1«6. 427. 1.") Atl., .'581. CHAP. XV.] PROTECTION" OF FRANCHISES. 865 II. Roads and Railways. § 912. Franchise in road protected; toll-gates. 913. Diligence required in seeking relief. 914. Exclusive railroad franchise between terminal points protected. 915. Exclusive nature of plaintiff's right; street railways. 916. Coach company enjoined from using street railway; rival street railways. §912. Franchise in road protected; toll-gates. Frequent instances of the interference of equity to prevent the viola- tion of a franchise occur in the case of roads, as where the exclusive right to control and operate a highway, turnpike, or other road, has been granted to individuals or to cor- porations. Thus, where complainant's road is incorporated under an act of legislature, which provides that no other road shall be constructed within thirty years after the pas- sage of the act, the act being held constitutional is re- garded as creating a contract with the corporation and an injunction will be allowed against the operation of a rival road.i And although such injuries to a franchise as call for the interposition of equity and the granting of an in- junction are generally in the nature of nuisances, and al- though the jurisdiction of equity over such cases partakes largely of the nature of the jurisdiction in restrain of nui- sance, yet the relief may be granted where the injury to the franchise is purely a trespass, if the remedy at law is inadequate. And the destruction of toll-gates and prevent- ing the collection of tolls, although a trespass, is such a one as can not be adequately compensated in damages in an action at law, and it will therefore be enjoined in equity. - 1 Boston & L. R. Co. v. Salem & County of Plumas, 80 Cal., 338, 22 L. R. Co., 2 Gray, 1; Boston Water Pac, 254. P. Co. V. Boston & W. R. Co., Ifi 2 Justices v. Griffin & W. P. P. R. Pick., 512. And see Central B. Co Co.. 11 Ga., 246. V. Lowell, 4 Gray, 474; Welch r. 55 866 INJUNCTIONS. [chap. XV. § 913. Diligence required in seeking relief. As in all cases where the preventive jurisdiction of equity is in- voked for the protection of rights, he who seeks relief against a violation of a franchise must make his application promptly and without delay, and must use reasonable diligence in the assertion of his right. And where the grievance complained of consists in the construction of a road in such manner as; to impair complainant's franchise, but defendants have been permitted for a long period to proceed with the construction of their work and to incur large expenditures without ob- jection, the injunction will be withheld.-^ § 914. Exclusive railroad franchise between terminal points protected. It would seem that actual injury to the franchise must exist before an injunction will be awarded,, and that a mere apprehension of injurious results will not. suffice if the work which it is sought to restrain may be undertaken for a legitimate purpose. And where complain- ants are by their charter vested with the exclusive franchise of transporting passengers and freight by railway between two cities, although they are entitled to the aid of equity to protect their franchise, yet a preliminary injunction will not be allowed to prevent two other corporations from effect- ing a union of their roads and forming a continuous line between the two points. The fact that such a junction may be used in derogation of complainants' rights will not war- rant the interference, if there be another and a legitimate purpose for which it may be formed, since equity will not restrain the carrying out of undertakings having a legitimate object in view, merely because they may be perverted to unlawful purposes.^ But when in such case it appears upon final hearing that complainants' rights are clear and unques- tioned, and that they have been for more than thirty years- in the cnjoyiiiciit of tln'ir fVaiichise of carrying passengers ■■ South Carolina R. Co. r. Colum- ' Delaware & R. Co. r. Camden bia & A. R. Co., 13 Rich. Eq., 339. & A. R. Co., 2 McCart, 1. CHAP. XV,] PROTECTION OF FRAXCHISES. 867 and freight between the two cities, an injunction will be allowed to prevent defendants from exercising the rights of complainants under their franchise to carry passengers through from city to city.""' And where a railway company is vested with the exclusive franchise, as against all per- sons save the state and those upon whom the state has con- ferred it, to construct and operate a railroad across the state between two terminal cities, it is entitled to an in- junction against the construction of a rival and competing road between the two cities, which is being constructed under legislative authority.*^ So a railway company in- vested with the privilege of loading and unloading its cars in the public streets of a city, which it has exercised for many years, may enjoin the city from enforcing an ordi- nance prohibiting the exercise of such privilege. And it is no objection to- granting the relief in such case that the attempted invasion of plaintiff's rights is accompanied by acts which amount to personal trespasses.'^ §915. Exclusive nature of plaintiff's right; street rail- ways. To warrant relief by injunction against the viola- tion of a franchise, satisfactory proof must be shown of the exclusive nature of plaintiff' 's right. And where a company claims the exclusive privilege of constructing and operating* a street railway through a city, and seeks to enjoin another company from so doing, if the evidence is conflicting as to plaintiff's right to the enjoyment of the exclusive franchise claimed, because of doubt as to its compliance with the con- ditions annexed to the legislative grant, an injunction should not be granted upon an interlocutory application.^ So it is held that the franchise of a street railway company does nol" •'-' Delaware & R. Co. v. Camden N. R. Co., 84 Ala., 115, 4 So., 10«. & A. R. Co., 1 C. E. Green, 321, af- See also City Council of Montgom- firmed on appeal, 3 C. E. Green, ery v. Louisville & N. R. Co., 84 546. Ala., 127, 4 So., 626. « Pennsylvania R. Co. v. National « Savannah R. Co. v. Coast Line R. Co., 8 C. E. Green, 441. R. Co., 49 Ga., 202. ■? Port of Mobile c. Louisville & 868 INJUXOTIONS. [chap. XV. entitle it to an injunction for the purpose of preventing another company from laying a double track through the same street, where it does not injure the first road, or in- terfere with its running.^ And the construction of another railway company through the same streets included in a grant to a previous company does not of itself constitute an infringement of the franchise granted to the prior company, nor is it such an encroachment upon its rights as, in the absence of special injury, will warrant the interference of a court of equity.^*^ But where a railway company, without authority of law, is proceeding to extend its track, such unauthorized extension is regarded as the attempted exercise of a valuable franchise, which is of itself sufficiently in- jurious to warrant a decree for a perpetual injunction.^! § 916. Coach company enjoined from using street rail- way; rival street railways. A street railway company, hav- ing by its charter the franchise of operating its road over the streets of a city, is entitled to an injunction to restrain a coach company from using plaintiff's tracks by running its coaches thereon in competition with plaintiff in the busi- ness of carrj'ing passengers and property, and from obstruct- ing plaintiff in the use of its tracks. !- So when a statute confirming certain franchises already enjoyed by street rail- way companies contains a i:)roliibition against the construction of any other street railway parallel to those already con- structed, within a given distance therefrom, a court of equity may enjoin another company from constructing a parallel road within the prohibited limit. And in such case, the injury being to a right secured to plaintiff by statute, no irreparable damage need be shown to warrant the re- lief.i3 » New York & H. R. Co. v. For- 45 Barb., 63. ty-second Street R. Co., 50 Barb., i- Camden Horse R. Co. v. Citi- 285. zens Coach Co., 31 N. J. Eq. (4 "•Brooklyn R. Co. t'. Coney Is- Stew.), 525. land R. Co., 35 Barb., 364. i^ St. Louis R. Co. v. Northwest- 11 People /•. Third Avenue R. Co., ern St. L. R. Co., 69 Mo., 65. CHAP. XV.] PROTECTION OF FRANCHISES. 869 III. Bridges. § 917. General rule. 918. Right need not be established at law. 919. Jurisdiction not dependent upon defendant's profits. 920. Landlord and tenant. 921. Injunction withheld where right is doubtful. 922. Negligence may bar relief. 923. The right must be exclusive. 924. When legal right do'ubtful, convenience considered. 925. Toll-bridge protected. 926. Acquiescence a bar to relief. § 917. General rule. The exclusive right to construct and maintain bridges being a franchise dependent upon legis- lative grant, the general principles of the jurisdiction of equity for the protection of franchises extend to and cover cases of this nature. Where, therefore, the exclusive right to maintain a bridge and to collect toll is invaded and the owner's rights are infringed without constitutional au- thority, equity will enjoin such interference. The courts proceed in such cases upon the principle that the charter granting the franchise constitutes a contract between the public and the corporation, imposing certain burdens upon the corporation, which, when fulfilled, entitle it to protec- tion in a court of equity.^ § 918. Right need not be established at law. As we have already seen, in considering the general grounds of relief for the protection of franchises, it is not necessary that the right should have been first established at law to warrant a court of equity in extending relief by injunction, since the creation of the franchise by legislative grant in the first in- stance is regarded as a sufficient assertion of the legal right. And where persons have been granted by act of legislature the exclusive privilege of building and maintaining a toll- 1 Hartford B. Co. v. East Hart- Co. r. Hartford & N. H. Co., 17 ford, 16 Conn., 149; Enfield T. B. Conn., 40. 870 INJUNCTIONS. [CIIAP. XV. bridge over a river, their right is sufficiently established at law to entitle them to the aid of equity for its protec- tion, and any infringement of that right by the erection of another bridge to the prejudice of the first will be en- joined.- § 919. Jurisdiction not dependent upon defendant's profits. The jurisdiction in this class of cases is exercised entirely independent of the question as to whether the persons against whom the injunction is asked derive profit from their interference with complainant's rights. And where defend- ant, a railway corporation, allows persons to cross its rail- way bridge free of toll, thereby impairing complainant's franchise in a toll-bridge near at hand, an injunction will be granted to restrain the railway company from allowing its bridge to be used for the passage of any persons, ve- hicles or animals for which complainant is entitled to take toll.3 § 920. Landlord and tenant. The relief may sometimes be allowed even though the relation of landlord and tenant exists between the parties as to the subject of the fran- chise to be protected. Thus, where complainants lease their bridge to defendants who use it in a manner expressly for- bidden by the terms of their agreement, thereby greatly in- juring complainants in the rights retained by them, an in- junction will be allowed against such improper use. In such case, a court of equity proceeds upon the ground that de- fendants are guilty of maintaining a continuing nuisance which can be best remedied by the preventive power of equity."^ § 921. Injunction withheld where right is doubtful. Where, notwithstanding the legislative grant of the franchise, the -' Piscataqua Bridge v. New •* Niagara Bridge Co. v. Great Hampshire Bridge, 7 N. H.. 35. Western R. Co., 39 Barb., 212. " Thompson r. New York & H. R. Co., 3 Sandf. Ch., 625. CHAr. XV.] PROTECTIOX OF FRAXCHISES. 871 legal right is not sufficiently clear to enable the court to determine correctly, and where no irreparable mischief is alleged as likely to result from a continuance of the acts complained of, the court may very properly take into con- sideration the relative convenience and inconvenience to the parties by granting or withholding the relief, and be gov- erned thereby in its determination. Thus, where one has received from parliament the right to construct and maintain a bridge, and seeks to restrain a railway company from con- veying its passengers across the river in steamboats, but does not show any injury likely to result from such acts which can not be adequately compensated in damages, the question of the respective rights of the parties being in doubt, an injunction will be withheld. In such a case equity will hesitate to interfere, lest by granting the relief prayed it might pronounce an opinion in favor of the legal right before a trial at law, although it may require defendant to keep an account until the legal right can be determined, and leave will be given complainant to apply again for an injunction.^ § 922. Negligence may bar relief. Negligence on the part of the owner of the franchise in performing the conditions on which he receives his exclusive right may deprive him of the aid of equity for its protection. And where a bridge company has been granted the right to erect and maintain a bridge, the charter requiring it to provide certain locks which it has made no effort to build, and by a subsequent act of legislature it is relieved from building the locks, it will not be allowed to enjoin defendants, who are proceed- ing under legislative authority, from constructing the locks.** § 923. The right must be exclusive. It has already been shown that in. the exercise of the jurisdiction of equity for the protection of franchises the right which is the subject 5 Cory r. Yarmouth & N. R. Co., c Enfield T. B. Co. v. Connecti- 3 Hare, 593. cut River Co., 7 Conn., 51. 872 ixjuxcTioxs. [chap. xv. of legislative grant, and which it is sought to protect, must be exclusive in its nature. And where the grant of a fran- chise is not in terms a grant of an exclusive privilege, the government is presumed not to have intended to part with the exclusive right, but to retain it for the public benefit. Equity will not, therefore, lend its aid in such case for the protection of a right which was not intended to be exclu- sive.''' Thus, complainants, whose right to erect and maintain a toll-bridge and to receive the tolls is not in terms exclusive of all others, will not be permitted to enjoin the opening of another bridge within such distance as greatly to impair the profits of the first.^ Especially will the aid of equity be withheld in such case where it appears that complainants have so far appropriated their bridge to the use of a railway company as to render it unsafe and dangerous for the ordi- nary purposes of travel for which it was originally con- structed.^ § 924. When legal right doubtful, convenience considered. In case of doubt as to the actual legal right to the fran- chise in controversy, a court of equity will generally be in- fluenced in granting or withholding the injunction by con- siderations of the relative convenience and inconvenience to the parties in the cause. And if in such case the incon- venience seems to be evenly balanced, equity will leave the parties as they are until the right can be determined at law. Thus, where the owner of a bridge over a river, authorized by act of parliament, seeks to restrain a railway company from carrying its passengers across the river in steamboats, the question of the legal right being somewhat in doubt, an injunction will not be allowed in the absence of any al- legations of irreparable mischief, or of such injury as can ' Fall V. County of Sutter, 21 « Fall v. County of Sutter, 21 Cal., 237; President v. Trenton C. Cal., 237. B. Co., 2 Beas., 46. ■' President r. Trenton C. B. Co., 2 Beas., 46. CHAP. XV.] PROTECTION OF FRANCHISES. 873 not be adequately compensated in damages at law. The re- lief will also be refused under such circumstances lest equity may, by granting an injunction, pronounce an opinion in favor of the legal right before a trial at law. But the de- fendants may be required to keep an account, and complain- ant will have liberty to apply again for an injunction.i'^ § 925. Toll-bridge protected. The grant to an incorporated company of the privilege or franchise of building a toll- bridge over a river, in consideration of the company agree- ing to erect the bridge and keep it in repair, and to permit the passage of citizens at certain rates of toll, constitutes a contract, and the legislature can not alter or impair such contract without the consent of the corporators. And w^hen a bridge company, incorporated wuth the powers above men- tioned, have erected and maintained their bridge in accord- ance with their act of incorporation, the law of the state prohibiting the erection of another bridge within three miles of one already constructed, a court of equity may properly enjoin the construction and continuance of another bridge within the limits fixed by law.^^ § 926. Acquiescence a bar to relief. But in this class of cases, as in all others, plaintiff's acquiescence in the con- struction and operation of that which is afterward sought to be enjoined may work an estoppel against the desired relief. And where plaintiff^ an incorporated bridge company, has acquiesced for a number of years in the construction under municipal authority of a bridge within the limits of plain- tiff's exclusive franchise, and has assisted in repairing the same when destroyed, such acquiescence wall operate as an estoppel to prevent the granting of an injunction to restrain the further repairing of such bridge when again destroyed. ^^^ i"Cory r. Yarmouth & N. R. Co., 12 Fremont F. & B. Co. v. Dodge 3 Hare, 593. Co., 6 Neb., 18. 11 Micou i: Tallassee Bridge Co., 47 Ala., 652. .■874 INJUXCTIONS. [chap. XV. IV. Ferries. .§ 927. General rule. 928. Relief not granted where remedy exists at law. 929. Complainant must be free from blame. 930. Modification of general rule. 931. Protection extended to land necessary for enjoyment of fran- chise. 932. Rival ferries on river between two states. 933. County enjoined from constructing rival ferry. § 927. General rule. The right to maintain a ferry being .a franchise whose value lies in its exclusiveness, equity may enjoin any unauthorized interference with or interruption of such right, upon the ground of preventing multiplicity of suits.^ So the erection of a bridge in such close proximity to a ferry whose franchise is created by law, as to endanger its profits and jeopardize the exclusive right of the pro- prietors of the ferry, constitutes sufficient ground to warrant a court of equity in granting an injunction for the protec- tion of the franchise.2 So a city, which is invested with the exclusive franchise of maintaining ferries, and of es- tablishing, controlling and receiving the revenues of all ferries between certain points, may enjoin the operation of a rival ferry by unauthorized persons between such points.-^ The rule is, however, to be accepted Avith the qualification that the right must be exclusive in its nature to entitle it to the protet?tion of equity. And where complainants show no exclusive ferry privileges or franchise, they will not be 1 McRoberts r. Washburne, 10 Power r. Village of Athens, 99 N. Minn., 23; City of Laredo r. Mar- Y., 592, 2 N. E., 609; Mason v. tin, 52 Tex., 548; Tugwell r. Eagle Harpers Ferry B. Co., 17 West Va., Pass F. Co., 74 Tex., 480, 9 S. W., 396; Carroll v. Campbell, 108 Mo.. 120. 13 S. W., 654; Midland T. .<: 550, 17 S. W., 884. F. Co. r. Wilson, 28 N. J. Eq. (1 -Gates v. McDaniel, 2 Stew., Stew.), 537; Patterson v. Woll- 211. See aiso Mason r. Harpers mann, 5 N. Dak., 608, 67 N. W.. Ferry B. Co., 17 West Va., 396. 1040. 33 L. R. A., 536. And sec "-Mayor r. Starin, 106 N. Y., 1, Eroadnax r. Baker, 94 N. C, 675; 12 N. E., 031. •CHAP. XV.] PROTECTION OF FRANCHISES. 875 allowed to enjoin the keeping of another ferry at the same place.* § 928. Relief not g^ranted where remedy exists at law. In the exercise of the jurisdiction for the protection of franchises courts of equity will look into the question of whether relief may be had at Liav, and if it appears that the remedy at law in damages is ample an injunction will be refused.^ Where, however, upon an amended bill complain- ant shows the exclusive right to a ferry, which is being vio- lated by defendant, and shows his inability to procure proof so as to proceed with an action at law, he is entitled to re- strain the infringement of his franchise, even though a former application had been refused on the ground that the remedy at law was ample.*' § 929. Complainant must be free from blame. He who seeks the aid of equity to restrain encroachments upon his franchise must himself be free from blame, since negligence and inattention to the business of his franchise and to the wants of the public will estop him from relief. Thus, where complainant claims the exclusive right to operate a ferry within certain limits, he will not be allowed to enjoin de- fendant from maintaining a ferry in violation of such right, where it appears from the evidence that complainant has been guilty of such a degree of inattention and gross care- lessness as Avould warrant the forfeiture of his rights in a proper proceeding for that purpose.'^ § 930. Modification of general rule. Equity will only in- terfere for the protection of a franchise against those whose conduct as regards the general public is such as to impair the right of the owner of the franchise. In accordance with this principle, it has been held that private persons will 4 Butt V. Colbert, 24 Tex., 355. e Long v. Merrill, N. C. Term R.. 5 Long v. Merrill, N. C. Term R., 256; S. C, 2 Miirph., 339. 112; Power r. Village of Athens, " Ferrell r. Woodward, 20 Wis., 19 Hun, 165. 458. 876 IXJUXCTIOXS. [CKAP, XV. not be enjoined at the suit of a ferry owner from using their own boats for the transportation of themselves and families, the public not being permitted to use them/^ And it would seem that the proprietors of a ferry, even though they may not have forfeited their franchise, may by non- user deprive themselves of any right to relief in equity.^ § 931. Protection extended to land necessary for enjoy- ment of franchise. The owner of a ferry who has received his franchise by legislative grant is entitled to the protec- tion of equity to restrain the laying out of a public road through grounds adjoining his dock, which have been used by him for a long period of years in connection with his ferry, and which are necessary for its beneficial use.^*' § 932. Rival ferries on river between two states. While, as has already been shown, equity will lend its aid b}" in- junction for the protection of an exclusive ferry privilege or franchise, j'et when plaintiff's only authority is a charter from one state authorizing him to operate a ferry upon a navigable river which forms the boundary between two states, and he shows no exclusive right upon the opposite shore in the other state, he will not be allowed an injunc- tion to restrain the operations of a rival ferry.^^ § 933. County enjoined from constructing rival ferry. Upon a bill by the owner of a ferry to enjoin the municipal authorities of a county from constructing another ferry ad- jacent to his own, without tendering him damages ,for the taking and injury of his property, when upon the pleadings and affidavits there is great doubt whether the municipal authorities have taken the proper legal steps for condemning private property, an injunctior may properly be granted « Trent v. Cartersville B. Co., 11 '■> Trent r. Cartersville B. Co., 11 Leigh, 521. And see Hunter r. Leigh, 521. Moore, 44 Ark., 184. if Flanders v. Wood. 24 Wis., 572. 11 Challiss r. Davis, 56 Mo., 25. CHAP. XV.] PROTECTION OF FRANCHISES. 877 until the hearing.^^ And the owner of land upon both banks of a river, having a franchise by prescription to maintain a public ferry, may restrain the county authorities from an unauthorized attempt to appropriate his franchise and to establish a free ferry.^^ 12 County Commissioners v. i^ Supervisors v. McFadden, 57 Humphrey, 47 Ga., 565. Miss., 618. CHAPTER XVI. OF INJUNCTIONS AGAINST THE INFRINGEMENT OF PATENTS.. 1. Nature axd Grounds of the Jurisdiction § 934 II. Effect of Prior Adjudications 953 III. Principles upon aa'hich Relief is Granted 960 I. Nature and Grounds of the Jurisdiction. § 934. Object of the relief; the forum. 935. Judicial discretion; conditions imposed. 936. Establishing right at law; recent patents. 937. Province of injunction; relative convenience and inconven- ience; solvency of defendant; bond. 938. Plaintiff's right must be free from doubt; other considerations governing preliminary injunctions. 939. Controversy as to right will bar relief. 940. Presumptions necessary to warrant relief. 941. Acquiescence by the public; exclusive enjoyment. 942. The doctrine further considered. 943. Prior use of plaintiff's invention. 944. Unsupported theory insufficient; English rule. 945. Repeal of patent; expiration; death of defendant. 946. Enjoining patentee from bringing or threatening actions for infringement. 947. Invention must stand on its own merits. 948. Plea that defendant was only a salesman. 949. Violation of injunction. 950. Property in manufactured articles; foreign sovereign. 951. Master of vessel enjoined from using patented machinery. 952. Effect of defendant's consent to injunction. I5 934. Object of the relief; the forum. The jurisdiction of equity to restrain the infringment of hitters patent for invention* is exercised for the prevention of irreparable in- jury, vexatious litigation and a nuiltiplieity of suits, as well as for affording protection to the rights of inventors.^ And 1 2 Story's Eq., § 930. 878 CHAP. XVI.] INFRINGEMENT OF PATENTS. 879' the preventive relief is granted in aid of the legal right whose protection is the ultimate object sought.- The right to interfere by injunction in this class of cases is exercised only by the United States courts, the state courts being de- void of jurisdiction.3 And while the state courts have un- questioned jurisdiction to determine questions of title or of contract rights pertaining to letters patent they have no power to restrain an infringement, even as an incident to an action growing out of contracts relating to patents, the fed- eral courts alone having power to determine questions of in- fringement.^ Nor has a state court jurisdiction to restrain defendants from manufacturing and selling under letters patent until they pay the royalties claimed by plaintiffs under a license, when the actual controversy is as to the validity of the patent and plaintiffs' right to its exclusive use, the fed- eral courts having exclusive jurisdiction in such cases.-"* §935. Judicial discretion; conditions imposed. Substan- tially the same rules prevail in determining applications for preliminary injunctions in patent causes as in other cases, and the granting of the relief is a matter of sound judicial discretion, and where greater injury is likely to result to complainants from withholding the relief than to defendants from granting it, it may be allowed.*^ And the court may impose conditions, either for granting or re- fusing the relief, and may examine into the state of the liti- gation, the nature of the improvement and the extent of 2 Bacon v. Jones, 4 Myl. & Cr., relief must be presented in order 436. to warrant an injunction against a Parkhurst v. Kinsman, 2 the infringement of a patent. See Halst. Ch., 600; U. S. Revised Germain r. Wilgus, 14 C. C. A., 5ul. Statutes, 1874, § 4921. And see 67 Fed., 597, and cases cited, this section construed in Yueng- 4 Continental S. S. Co. r. Clark, ling V. Johnson, 1 Hughes, 607. It 100 N. Y., 365, 3 N. E., 335. has been held, under the provi- s Hat S. M. Co. r. Reinoehl, 102 sions of the act of Congress, that N. Y., 167, 6 N. E., 264. some special equitable grounds for e irwin r. Dane, 4 Fish., 359. 880 INJUNCTIONS. [chap. XVI. the infringement, as well as the comparative inconvenience to the parties.'^ §936. Establishing right at law; recent patents. The doctrine was formerly held in England that an injunction would not be allowed until the right had been established at law, but it would seem that the jurisdiction may now be exercised on showing color of title, coupled with an asser- tion of right which is not denied.^ In this country, the jurisdiction exercised by the federal courts over actions in equity pertaining to patents being derived from statute, these courts do not in all cases require a verdict at law upon the title before granting even a final injunction.*' And where the rights under the patent are clear, and the infringement is free from doubt, the patentee will not be compelled to proceed at law, but he may at once apply to the equity side of the court for relief.i^ And the allowance of a jury trial to test the question of the alleged infringement, on an ap- plication for a preliminary injunction, is not a condition precedent to the relief, nor is it to be regarded as a matter of right, but rather as resting in the sound discretion of the court.i^ But if the patent has never before been the subject of litigation, either at law or in equity, plaintiff may be required to give bond before the granting of the injunction.12 And when there has been no adjudication at law sustaining the validity of the patent, the courts may require plaintiff to show an exclusive possession and exer- TFurbush v. Bradford, 1 Fish., v. Grand Avenue R. Co., 33 Fed., 317. 277. 8 Universities i'. Richardson, 6 i ' Brooks v. Norcross, 2 Fish., Ves., 689. And see Hicks v. Rain- 661; Potter v. Fuller, lb., 251; cock, Dick., 647. Motte v. Bennett, lb., 642. And see « Sickles V. Gloucester Manufact- Motte v. Bennett for an exhaustive uring Co., 1 Fish., 222; Sanders i'. history of the jurisdiction of equity Logan, 2 Fish., 167. in this class of cases, both in 1" Potter r. Muller, 2 Fish., 465; England and America. Shelly r. Brannan, 4 Fish.. 198; S. i^ Shelly v. Brannan, 4 Fish., C, 2 Bissell, 315. See also Wise 199; S. C, 2 Bissell, 315. CHAP. XYI.] INFEIXGEMEXT OF PATEXTS. 881 •cise of the right before granting a preliminary injunction.!^ So where plaintiff's patent has been issued less than two months, and he has exercised no rights under it, and there lias been no trial at law, an interlocutory injunction will be refused.!^ And notwithstanding the English rule that a £nal and perpetual injunction will not be granted when the ■answer denies the validity of the patent, without sending the parties to law to decide that question,!^ in this country it rests in the discretion of the court to grant the relief, with or without a trial at laAv.^*' It would seem, however, that a reasonable doubt as to complainant's right, or the validity of the patent, constitutes ground for requiring a trial at law.^" So where there is no proof of public ac- quiescence and there has been no prior adjudication sus- taining the patent and an action at law is pending between the parties, a bill for an injunction is properly dismissed.!^ §937. Province of injunction; relative convenience and inconvenience; solvency of defendajit; bond. The province of a preliminary injunction in a patent cause is to preserve the rights of the patentee pending the litigation of his title. 13 Hockholzer v. Eager, 2 Sawy., has been in possession of it by hav- 361; Gutta Percha Co. v. Goodyear ing used or sold it, in part or iu Co., 3 Sawy., 542. the whole, the court will grant an i* Brown v. Hinkley, 6 Fish., 370. injunction and continue it till the 15 Bacon v. Jones, 4 Myl. & Cr., hearing or further order, without 436; Renard v. Levinstein, 2 Hem. sending the plaintiff to law to try & M., 628. his right. But if there appear to i« Goodyear v. Day. 2 Wal. Jr., be a reasonable doubt as to the 283; Buchanan v. Howland, 5 plaintiff's right, or to the validity Blatch., 151. of the patent, the court will re- 1" Ogle V. Edge, 4 Wash. C. C, quire the plaintiff to try his title 584. Washington, J., says: "I at law, sometimes accompanied take the rule to be in cases of in- with an order to expediate the trial, junctions in patent cases, that and will permit him to return for ■where the bill states a clear right an account in case the trial at law to the thing patented, which to- should be in his favor." gether with the alleged infringe- is Germain r. Wilgus, 14 C. C. A., ment is verified by affidavit, if he 561, 67 Fed., 597. 56 882 INJUNCTIONS. [chap. XVI. If his title has alreadj^ been fully established, or is so clear as to preclude a reasonable doubt of its validity, a prelimi- nary injunction may be granted, as in the case of a final injunction, regardless of the injury to defendant, but the case must be substantially free from doubt to warrant this course.^ ^ And an important consideration in the granting of preliminary injunctions is that of the relative conven- ience and convenience of the parties ; and if it appears that the granting of the writ will result in great injury to the defendant as compared with the benefit accruing to the plaintiff, relief may be denied in the first instance ; while, upon the other hand, if the plaintiff's rights will be greatly jeopardized by the withholding of the writ, with compara- tively little corresponding advantage to the defendant, the injunction may properly be granted.-*^ So w^iere the grant- ing of the writ will result in great inconvenience and injury to the defendant or to the public generally as compared with any benefit which may come to the plaintiff and it cleairly appears that the defendant is perfectly solvent and abundantly able to respond in damages for any judgment which may be rendered against him, a preliminary injunction should be denied.^i On the contrary, where the court, upon balancing the relative convenience and inconvenience to the parties, denies or dissolves a preliminary injunction, it may, in so doing, re Wells r. Gill, G Fish., 89. fused on other grounds. 21 Lister v. Eastwood, 26 L. T., 4. CHAP. XVI.] IXFIUXGE.MENT OF PATENTS. 901 patent, the recovery of a verdict for plaintiff, in an action at lav^ upon a patent, is not necessarily conclusive upon his right to an injunction, and the court may, upon such appli- cation, consider the true interpretation of the patent, irre- spective of the former verdict,-- especially where a writ of error is pending to the proceedings at law.-'* And an ex- ception to the rule has been recognized in cases where new evidence has been adduced by the defendant in opposition to the patent Avhich is of such a clear and conclusive char- acter as to lead to the conviction that, had it been pre- sented in the prior proceeding, the result would, in all proba- bility, have been different ; and in such case, a preliminary injunction may be denied, notwithstanding the prior adju- dication.-^ So Avhere a preliminary injunction has already been granted upon the strength of such prior judgment, it may, upon the presentation of such evidence, be dissolved.-^ And although the defense now relied upon was raised in the former proceeding, yet if it is now supported by evidence of such a conclusive nature as to lead to a different conclusion, interlocutory relief may properly be refused,-" Moreover the rule requires that a prior adjudication, in order to afford sufficient ground for a preliminary injunction, should have been rendered in a proceeding where there "vvas an actual, bona fide controversy between the parties in which a contest has been made against the validity of the patent. Where, therefore, the adjudication has been rendered in a cause which has been submitted on final hearing without brief or argument upon behalf of the defendant, it wuU not afford ground for a preliminary injunction where there is no 2- Many v. Sier, 1 Fish., 31. ers v. San Francisco Bridge Co., 23 Day V. Hartshorn, 3 Fish., 32. 69 Fed., 640; Western Electric Co. 24 Bailey W. M. Co. v. Adams. 3 r. Keystone Tel. Co.. 115 Fed.. 809. Banning & A., 96; Ladd v. Camer- -' Cary v. Domestic S.-B. Co., 26 on, 25 Fed., 37; Glaenzer r. Wie- Fed., 38. derer, 33 Fed.. 583 ; Norton D. C. -'g Lockwood r. Faber, 27 Fed., & S. Co. i\ Hall, 37 Fed.. 691 ; Bow- 63. 902 INJUNCTIONS. [chap. XVI. proof of public acquiescence and the validity of the patent is vigorously denied.^^ So also a final decree entered by consent upon a settlement of the litigation, will not fulfill the requirements of the rule and constitutes no ground for a preliminary injunction.^s Nor will a former judgment suffice as a basis for interlocutory relief where it was ren- dered in a suit which, at the time of its rendition, had ceased to be an adversary proceeding, which fact was not known to the court at the time of its decree.^^ And not- withstanding a prior adjudication in favor of a patent, the court may refuse a preliminary injunction where it is shown that the right claimed by the plaintiff was not fairly in con- troversy in the former action or that certain material facts were not known or considered in that proceeding.^*' So the adjudication will not avail where it appears that the con- struction given to plaintiff's patent in the former suit was not broad enough to cover defendant's process and there- fore to subject them to the charge of infringement.^' Nor need the court follow such an adjudication as a matter of comity where it has already reached a different conclu- sion in ignorance of it.^- And where the prior judgment -7 American Electric Novelty the court would seem to refer to Co. V. Newgold, 99 Fed., 567. And the action upon these interlocu- see American M. P. Co. v. Vail, 15 tory applications as the prior ad- Blatch., 315. But see Orr v. Little- judication in question. But the field, 1 Woodb. & M., 13. decision was doubtless intended -« De Ver Warner v. Bassett, 7 to apply also to the action in en- Fed., 468. In this case it appeared tering the final decree, that in the action relied upon as '■^^ Western Electric Co. i\ An- a prior adjudication, a motion for thracite Tel. Co., 100 Fed., 301; S. a preliminary injunction had been C, on final hearing, 113 Fed., 834. argued and granted. Afterward 3o Page v. Holmes B. A. T. Co., 2 defendant procured a re-hearing Fed., 330. of this motion and the court, after si Whippany Mfg. Co. v. United re-examining the question, contin- I. F. Co., 30 C. C. A., 615, 87 Fed., ued the injunction. Subsequently 215. a settlement was had and the 32 Consolidated R.-M. Co. i\ court entered a final decree by Smith M. P. Co., 40 Fed., 305. consent. From the language used, CHAP. XVI.] INFRINGEMENT OF PATENTS. 903 upon which a preliminary injunction has been based is sub- sequently reversed upon appeal, the injunction should be dissolved; and this is so, although the reversal was because of an accord and satisfaction.^^ And where complainant relies upon a previous verdict of a jury and judgment of a court of law, for the establishing of his patent upon an application for an injunction, he must aver in his bill that such proceedings have taken place.^^ If the verdicts upon which complainant relies have been rendered upon claims so inconsistent and contradictory that the court can not say with certainty what is and what is not an infringement of the patent, the injunction will be refused.^^ And the fact that another court has, upon an interlocutory application, granted an injunction against other parties restraining the infringement of the patent is not, of itself, a sufficient ad- judication of plaintiff's right to justify an injunction when the infringement is positively denied by answer and affida- vits.^^ And where it is sought to avoid a preliminary injunction upon the ground of newly discovered evidence, although such evidence may not be of such a conclusive, positive and satisfactory character as to warrant the belief that, had it been presented in the former action, the result would have been different, it may nevertheless be sufficient to justify the court in dissolving a temporary injunction pre- viously granted, upon the filing of a bond by the defendant.^^ And it is to be observed that no considerations of comity reqiiire a court to shut its eyes and blindly follow the prior adjudications of other courts, where it is convinced upon independent investigation that such decisions are clearly erroneous; and the action of the court in refusing thus to be 33 Prieth v. Campbell P. & M 36 Sargent Manufacturing Co. v. Co., 25 C. C. A., 624, 80 Fed., 539. Woodruff, 5 Biss., 444. And see, ante. § 954. 37 Norton v. Eagle Automatic 34 Parker v. Brant, 1 Fish., 58 Can Co., 61 Fed., 293. 35 Parker v. Sears, 1 Fish., 93. 904 IXJUNCTIONS. [chap. XVI. bound is held to be the exercise of a proper discretion which will not be disturbed upon appeal.-"^** § 959. Effect of re-issue covering- wider ground. Where the validity of a patent has been sustained by a decision at laAv during- its original term, and thereafter a re-issue is obtained covering a wider ground than that adjudicated in the original, all that lies between the limits of the orig- inal and of the re-issue is disputed territory. And if in such ease the infringement which it is sought to enjoin lies wholly within that disputed territory, the application for relief Avill be denied.^^ 38 Welsbach Co. r. Cosmopolitan I. L. Co., 43 C. C. A.. 418, 104 Fed., 83. It is admittedly a mat- ter of considerable difficulty to reconcile this case satisfactorily ■with the otherwise unanimous de- cisions of the courts in which the effect of prior adjudications is so clearly and definitely established. And the wisdom of attempting, upon an interlocutory application, to pass judgment upon the valid- ity of a patent contrary to the sol- emn and deliberate adjudication of another court rendered after a strenuous contest and upon final hearing may well be questioned. ■'» Poppenhusen v. Falke, 2 Fish., 181. CHAP. XVI.] IXFRIXGEMEXT OF PATENTS. 905 III. Principles upon which Remef is Granted. § 960. Defendant's bona fides ; patent to defendant. 961. Injunction not granted on patent alone. 962. Considerations of hardship and convenience. 963. Prima facie infringement must be shown; recent patent. ' 964. Clear infringement required when patent not adjudicated; good faith of defendants. 965. Acquiescence and encouragement bj^ plaintiff a bar to relief. 966. Limitations upon the doctrine. 907. Defendant's pecuniary responsibility: questions of damage; license fee as measure of damage; damages for past infringe- ment will not justify future infringement. 968. Bond or security in lieu of injunction. 969. Plaintiff's prior possession and use considered; partial infringe- ment; denial by answer. 970. Dissolution. 971. Rights of licensee. 972. The same. 973. Actual infringement not necessary; apprehensions of future infringement; experiments. 974. Public convenience; injury to third persons. 975. Validity; novelty; infringement. 976. Infringement after verdict; promise by defendant not to con- tinue infringement. 977. Subsequent patent to defendant; doubt as to novelty. 978. Proof as to inventor; dissolution. 979. Parties; action against United States. 980. Questions of jurisdiction. 981. Expiration of patent; assignee of defendant pendente lite. 981a. The same; effect on appeal; when injunction allowed though patent has expired. 981&. Effect of expiration on right to accounting. 982. Grounds of dissolution; account; appeal. 983. Penalty for not marking patented articles; injunction upon the hearing. 984. Process not patented may be protected. 985. When jurisdiction exercised over foreigners. 986. Violation; infringement not determined in contempt proceed- ing; judgment imposing fine, being criminal, is reviewable by writ of error. 987. Account not incidental to injunction. §960. Defendant's bona fides; patent to defendant. Where defendant is aetinp' in t;ood faith under letters 906 INJUNCTIONS. [chap, XVI. patent covering his process of manufacture, he has a prima facie right to continue, and the court will not, upon ex parte affidavits, on an application for a preliminary injunction, decide the whole merits of a bona fide issue, and thus anticipate a final judgment upon the legal questions involved. And if in such case defendant shows a belief that he has a just defense, and has not wilfully pirated complainant's invention, the court will require a case of evident mistake of law, or of fact, or both, in the defense thus interposed, before it will resort to the remedy by in- junction.i But the fact that defendant, after the alleged infringement, has received a patent for the article manu- factured by him, will not prevent an injunction if the in- fringement is satisfactorily established, since the granting of a subsequent patent merely serves to indicate the opin- ion of the officers granting it, upon an ex parte examination of the subject, and is by no means conclusive. 2 Especially if complainant has already established his title at law, and obtained an injunction in the same court, the relief will be allowed, although defendant claims to have patented his apparatus in good faith.^ And where complainant makes out a strong prima facie case for an injunction, it will not be refused because defendant alleges that he is the first and original inventor, his evidence resting upon an ex parte application to the patent office and upon his own affidavit, he having slept upon his rights for a long period of years.'* § 961. Injunction not granted on patent alone. Equity will never interfere upon the mere patent alone, without proof of user or sales, or of recoveries at law,'^ and where complainant has failed in previous trials at law to 1 Goodyear v. Dunbar, 1 Fish., * Potter v. Stevens, 2 Fish., 163. 472. ^' Hovey i\ Stevens, 1 Woodb. & 2 Morse Pen Co. v. Esterbrook, 3 M., 290; Toppan v. National Co., 4 Fish., 515. Blatch.. 509; S. C, 2 Fish., 196. 3 Sickels V. Tileston, 4 Blatch.. 109. CHAP. XVI.] INFRINGEMENT OF PATENTS. 907 establish his rights, and it does not appear that they have been acquiesced in by the public, the relief will be withheld.*' And where complainant's patent has but a short time yet to run, and there can be but little difficulty in determining what would be a proper indemnity for the use of his invention in the manufacture of defendant's machines, defendant's apparatus embracing improvements which can not be used without the original invention of complainant, upon which they are engrafted, the defendant may be permitted, in lieu of a temporary injunction, to give bond with approved security to account and pay such sum as the court may finally decree.'^ § 962. Considerations of hardship and convenience. While considerations of the relative hardship and inconvenience to the respective parties, by granting or withholding the relief, may properly be taken into account in determining the application, yet where the right is well established and the violation clear, neither considerations of public or private convenience, or of hardship to the defendant, will prevent the court from interfering.^ More especially where complainant's right has been established by pre- vious adjudication will the court refuse to be governed by considerations of hardship to defendant from grant- ing the injunction, since it is manifestly unjust that a patentee, whose rights have already been established, should be under the necessity of meeting litigation in a great vari- ety of cases, thereby rendering his patent comparatively valueless.^ And when there has been long and quiet en- joyment under the patent, and its validity has been sus- 6 Serrell I'. Collins, 4 Blatch., 61; » Sickels v. Tileston, 4 Blatch., Toppan V. National Co., lb., 509. 109; Potter r. Fuller, 2 Fish., 251; And see North r. Kershaw, lb., 70; Ely v. Monson & B. M. Co., 4 Fish., Muscan H. M. Co. r. American H. 64. M. Co., lb., 174. ■' Ely v. Monson & B. M. Co., 4 ^ Howe i'. Morton, 1 Fish., 586. Fish., 64. 908 INJUNCTIONS. [chap. XVI. tained by the courts, an injunction will not be withheld upon the doctrine of comparative inconvenience.^^ And where the plaintiff's right and the infringement by the defendant are clear, it is no defense to the ultimate grant- ing of the relief that the writ may result in great injury or inconvenience to the public at large, although the court may, in such case, suspend the operation of the injunction for a reasonable time if by so doing such inconvenience or injury may thereby be lessened or avoided.^ ^ § 963. Prima facie infringement must be shown ; recent patent. While it is essential that the patentee should pro- duce prima facie evidence of his title, yet this alone will not suffice to entitle him to the injunction, since, however clearly the validity of the patent may be established, a prima facie case of infringement must be made out before equity will interpose.^ ^ g^t if the case be free from doubt in other respects, the relief will not be refused because the patent is a recent one.^^ § 964. Clear infringement required when patent not adju- dicated; good faith of defendants. When it is sought to re- strain an alleged infringement of a patent whose validity has never been sustained by any prior adjudication, acquies- cence in its use being relied upon as the foundation for relief, the infringement must be palpable and clear. And while the fact that defendants are using a machine which is openly made, sold and used under patents, and which the manufac- turers have put upon the market in good faith and in open competition with the machines made by plaintiff and in the belief that they were not trespassing upon his rights, will not of itself constitute a sufficient defense if defendants are I'l Davenport v. Jepson, 4 De- son-Houston Electric Co. v. Union Gex, F. & .1., 440. ' Ry. Co., 78 F'ed.. 365. "Campbell P. & M. Co. c. Man- i-' Hill /•. Thompson, 3 Meriv., hattan Ry. Co., 49 Fed., 930; Thorn- 626. "Clark r. Ferguson. 1 Gif., 184. CHAP. XVI. I IXFRINGEMENT OF P.VTENTS. 909 adjudged guilty of an infringement upon the final hearing, it constitutes a reason why the court should hesitate to in- terfere before final decree, when there is no suggestion of irremediable injury in the meantime, or of any want of •ability to respond in the event of a final recovery.'^ § 965. Acquiescence and encouragement by plaintiff a bar to relief. In considering applications for relief by injunc- tion against the infringement of patents, courts of equity require of the patentee due and reasonable diligence in the assertion of his rights, and a long or unreasonable delay in invoking relief* or acquiescence for a considerable length of time in the infringement complained of, may afford suffi- cient ground for refusing an injunction.^ ■'• Thus, where the patentee has stood by for many years and acquiesced in the use of the article which he afterward seeks to enjoin, such acquiescence, without objection and without demand of compensation, is regarded as conclusive evidence that the continuance of the use of his invention, for the short period yet remaining before the expiration of his patent, will not constitute such an irreparable injury as to warrant an in junction.i^' And where the patentee, while licensing certain persons to use his invention, has permitted others to use it ■without license and without objection, such conduct may be taken into consideration by the court, and although it is satisfied of the validity of the patent it will not interfere by an absolute and unconditional injunction, but will grant a temporary writ, with leave to defendant to come in and 14 Burleigh Rock Drill Co. v. Goodyear v. Honsinger, 3 Fish., Lobdell, 1 Holmes, 450. 147; S. C, 2 Biss., 1; Baxter r. 1'' Lane & Bodley Co. v. Locke, Combe, 1 Ir. Ch., 284; Blanchard 150 U. S., 193, 14 Sup. Ct. Rep., v. Sprague, 1 Cliff., 288; Hockhol- 78; Keyes v. Eureka Mining Co., zer r. Eager, 2 Sawy., 361; Covert 158 U. S., 150, 15 Sup. Ct. Rep., v. Travers Bros. Co., 96 Fed., 568; 772; Woodmanse & H. Mfg. Co. r. Meyrowitz Mfg. Co. v. Eccleston. Williams, 15 C. C. A., 520, 68 Fed.. 98 Fed., 437. 489; Parker v. feears, 1 Fish., b3; i« Parker r. Sears, 1 Fish., 93. 910 INJUNCTIONS. [chap. XVI. have the same dissolved upon giving security to complain- ant.^" So it is held that acquiescence by a patentee for a considerable length of time in the use of his patented machine by defendant, who had previously constructed and used the same by permission of the patentee, will justify the court in refusing to interfere.^ ^ And where plaintiffs had permitted defendants to use the patented machine for a period of more than eighteen months, with full knowl- edge by plaintiffs of such user, such delay was held to con- stitute sufficient ground for refusing an injunction.^ ^ So if complainant has encouraged or acquiesced in the infringe- ment, or has permitted the erection of works and large ex- penditures of money in the manufacture of the patented invention, he will not be protected.^*^ And where defendant has manufactured under authority of a patent and with full knowledge of complainants for a considerable length of time, without molestation, and has invested money in the business, to warrant an injunction the case must be free from all reasonable doubt.-^ And especially will plaintiff's laches be a bar to relief upon an application for a pre- liminary injunction.22 Nor will a preliminary injunction be allowed where plaintiff" has suffered a period of several months to elapse between the filing of the bill and the application for the injunction, during which time the de- fendant has laid in a large supply of the alleged infringing article for the year's business which is of short duration.^s 17 Goodyear v. Honsinger, 3 Sykes v. Manhattan, 6 Blatch., 490. Fish., 147 ; S. C, 2 Biss., 1. 21 North v. Kershaw, 4 Blatch., 18 Blanchard v. Sprague, 1 Cliff., 70. 288. 22Keyes v. Pueblo S. & R. Co., 19 Hockholzer v. Eager, 2 Sawy., 31 Fed., 560; Waite v. Chichester 361. Chair Co., 45 Fed., 258; Price v. 20 Bacon v. Jones, 4 Myl. & Cr., Joliet Steel Co., 46 Fed., 107; 436; Bridson v. Benecke, 12 Beav., Blakey r. Kurtz, 78 Fed., 368. 7; Bovill V. Crate, L. R. 1 Eq., 388; ^'f Ney Mfg. Co. v. Superior North V. Kershaw, 4 Blatch., 70; Drill Co., 56 Fed., 152. CHAP. XVI.] INFRINGEMENT OF PATENTS. 911 § 966, Limitations upon the doctrine. Notwithstanding the well settled doctrine denying relief by injunction when the patentee has long delayed the assertion of his rights, the fact that plaintiffs have been compelled to litigate their rights under their patent by a long series of suits, and have but recently obtained an adjudication in their favor, has been held a sufficient excuse for their apparent laches in seek- ing preventive relief in equity.-^ And a delay of three months in filing the bill after plaintiff is apprised of the char- acter of defendant's infringement affords no ground for re- fusing an interlocutory injunction, when defendant has not thereby been induced to change his position, and when he has had no communication with plaintiff in the interval.^^ And it is held that laches in the sense of mere delay in bringing suit will not deprive a patentee of the right to a perpetual injunction against infringement in the absence of such words, acts or conduct as are sufficient to create an estoppel.26 Where there has not been a long or unin- terrupted possession under the patent, and there has been a delay of two years upon plaintiff's part in seeking to restrain the alleged infringement, it is proper to refuse the injimction in limine, but without prejudice and with liberty to plaintiff to bring his action at law.-'^ But when, in such case, plaintiff' proceeds with his action at law and obtains a verdict therein, it is then proper to grant an in- junction, even though a bill of exceptions has been tendered in the action at law which has not yet been finally disposed of on error to a court of review. ^^ §967. Defendant's pecuniary responsibility; questions of damage; license fee as measure of damage; damages for past 24 Rumford Works v. Vice, 14 27 Baxter v. Combe, 1 Ir. Ch., Blatch., 179. 284. 25 Union Co. v. Binney, 5 Fish., 28 Baxter v. Combe, 3 Ir. Ch., 166. 256, affirming S. C, lb., 245. 26 Sawyer Spindle Co. v. Taylor, 69 F'ed., 837. And see, ante, § 10 a. 912 INJUNCTION'S. [chap. XVI. infringement will not justify future infringement. Defend- ant's pecuniary responsibility is a material circumstance to be taken into account on the application for an injunction, as is also the fact that he does not make or vend the pat- ented machine, but merely uses it, the only injury resulting therefrom to the patentee being the loss of his royalty, and not a damaging and constantly increasing competition.-'-* Where, therefore, the plaintiff is not the manufacturer or vendor of the infringing article, but merely licenses his patent for a fixed license fee, so that the damages are readily and satisfactorily ascertained, and it further appears that the defendant is abundantly able to respond in dam- ages, relief by injunction will be refused and the plaintiff will be left to the pursuit of his legal remedy .^^ So where the injury to the patentee resulting from the infringement consists, not in the use of the invention, but in depriving him of compensation for such use, the price or value of a license constituting the rule of damages, an injunction is not the proper remedy to enforce payment of the money, since the measure of damages being a certain and fixed sum, ample redress may be had at law.^^ But where the validity of a patent and the infringement thereof are clear, the pay- ment of damages for past infringement will not confer upon defendant the right to infringe in the future and will ac- cordingly be no defense to the granting of the writ against future infringement.-'- § 968. Bond or security in lieu of injunction. Although defendant's machine may be an infringement of that of complainant, yet if it contain other and valuable improve- '■< Morris v. Lowell, 3 Fish., 37. ^'i Sanders v. Logan, 2 Fish., 167. ■•'"'Smith V. Sands, 24 Fed., 470; And see Livingston i\ Jones, Ih., National H.-P. M. Co. r. Hedden. 207. 29 Fed., 147; Kane r. Huggins ;••■; Campbell P. & M. Co. r. Man- Cracker Co., 44 Fed.. 287; Over- hattan Ry. Co.. 49 Fed., 930. weight C. E. Co. v. Cahill E. Co., 86 Fed., 338. CHAP. XVI.] IN FKINUEMEXT OF PATENTS. 913 meuts not covered by complainant's patent, and if the issuing of the writ would be likely to prejudice the actual rights of defendant, without being as beneficial to complainant as an account of profits with security for their payment, the injunction will be withheld on con- dition of defendant's accounting and giving security for payment.^^ And the practice is sometimes adopted of grant- ing the injunction in the alternative, unless defendant will give bond in a sum fixed by the court to respond in such damages, if any, as may be awarded upon the final decree.^* So where plaintiff is not a manufacturer of the patented article and will be adequately protected by a just compen- sation for the use of his invention, and defendants are heavy manufacturers with a large capital invested in their business, the sudden stoppage of which would be disastrous to them and would be of no benefit to plaintiff, it is proper to allow defendants the opportunity of giving a bond to secure plaintiffs, in lieu of granting an injunction.^'"' And where the validity of complainant's patent is denied on the ground of a prior public use, the patent itself never having been adjudicated, and the general allegation in the bill of acquiescence on the part of the public is unsupported by proof and denied by the answer, defendant will not be en- joined from constructing a single machine merely for his own use, if he gives security to complainant for all loss and damage which may result to him by reason of the construc- tion and use of the machine.^^ But where the infringement ;^3 Stainthorp r. Humiston, 2 Fish., 302; S. C, 1 Holmes, 96; Fish., 311. And see Howe r. Mor- Wells r. Gill, 6 Fish., 89; Mid- ton, 1 Fish., 586. As to the consid- dlings Purifier Co. r. Christian, 4 erations governing the court in de- Dill.. 448. termining whether to grant an '■'•-> Dorsey Co. v. Marsh, 6 Fish., injunction or to require defendant 387. And see Yuengling v. John- to keep an account, see Plimpton son, 1 Hughes, 607. I'. Spiller, 4 Ch. D., 286. •-•« Morris Shelbourne, 4 Fish., •"•* See Chipman v. Wentworth, 5 377; S. C, 8 Blatch., 266. 58 914 INJUNCTIONS. [chap. XVI. is manifest and the right to an injunction clear, it will not be withheld because of defendant offering security for dam- ages and an account of sales.^'^ §969. Plaintiff's prior possession and use considered; pax- tial infringement; denial by answer. On an application to enjoin the infringement of a patent, the court may take into consideration complainant's possession of the right and his use of the invention before the application for the grant of letters patent.^^ But the use must be a public use, under an avowed claim of right, since, if this be not so, there is no exclusive possession as against the public, and no claim in which it can acquiesce.^*^ It is not, however, necessary that all the grants of right in the patent should have been in- fringed, but the injunction will issue for the violation of a portion of them.'**^ And a mere denial by answer of the equity of the bill does not prevent the court from looking into the law and the facts of the case, and where the right depends upon the interpretation to be given to the letters patent the court will look into the instrument and con- strue it, notwithstanding the answer denies the right to the relief.^i § 970. Dissolution. An injunction in patent cases is not designed to delay or impair the right of trial by jury, but rather to make the prima facie title prevail until such trial can be had.'*^ Hence, where an injunction has been granted on proof of former recT)veries and long possession, it will not necessarily be dissolved on an answer denying the valid- ity of the patent, but will be continued to allow an issue at law upon that question.^^ -^q^. ^y{\\ h^q injunction be dis- 3T Tracy v. Torrey, 2 Blatch., 275. +i Clum r. Brewer, 2 Curt. C. C, 38 Sargent v. Seagrave, 2 Curt. C. 506. C, 553. 42 Woodworth r. Rogers, 3 39 Toppan V. National Co., 4 Woodb. & M., 135. Blatch., 509. j.i Orr ;;. Merrill, 1 Woodb. & M., 10 Potter V. Holland, 4 Blatch., 376. 238; S. C, 1 Fish., 382. CHAP. XVI.] INFEINGEMENT OF PATENTS. 915 solved because of doubts as to the validity of the patent, growing out of errors on the part of the officers issuing it, when steps have been taken in Congress to correct such errors by appropriate legislation."*^ § 971. Rig^hts of license©. A licensee of a patent, if his rights be infringed, is entitled to the aid of an injunction to restrain such infringement to the same extent as the original patentee."*^ Thus, a licensee who has the exclu- sive right to vend the patented article within a given ter- ritory may enjoin others from purchasing or procuring the devise from the licensor and selling it within the forbidden territory in violation of the contract between the licensor and the plaintiff.^^ And where a patentee has by contract given a license to plaintiff to make and use the patented inven- tion, the suing out of an injunction restraining plaintiff from such manufacture is a breach of the contract and sufficient ground for maintaining an action thereon.*^ But where plaintiff' held a license to manufacture under de- fendant's patent, defendants having the option to terminate plaintiff's license if the sums due for fees were not paid, it was held that a court of equity had no jurisdiction to en- tertain a bill to obtain a construction of the license and to restrain defendants from giving notice of their option to terminate the license and from attempting to collect the fees, but that the remedy should be sought at law.^** § 972. The same. Where an injunction is in full force against the use of a patented machine, the court will not a,llow its use by parties claiming under the patentee of the 44Woodworth v. Hall, 1 Woodb. Phonograph Co. v. Jones, 123 Fed., & M., 389. 197. 45 Brammer v. Jones, 2 Bond, *" Sailings v. Goodyear Dental 100. Vulcanite Co., 36 Mich., 313. 4« New England Phonograph Co. ^« Florence S. M. Co. v. Singer V. Edison, 110 Fed., 26; New York M. Co., 8 Blatch., 113. 916 INJUNCTIONS. [chap. XVI. invention enjoined.^"* But, although a proA'isioual injunction will be granted against the licensee of a patent, if applied for during his violation of the restrictions subject to which he received his license, yet if it appears that such violation was made under a misapprehension of his rights, and has been discontinued, the injunction will be withheld.-''*^ And where defendant claims the right to manufacture under an assignment of a license from plaintiffs, an interlocutory in- junction will be refused when it is not shown that defend- ants are using the invention in any manner not warranted by the license.-'^ Where, by the terms of the license, a for- feiture is incurred by non-payment, the remedy may be either at law to enforce the payment, or in equity to restrain the use of the patent.'"'- But a license to use the patent, granted by one tenant in common, can not be enjoined by another tenant in common, their right to sell or license being equai.^^ And where it appears by the answer that defendant was act- ing under a license from complainant, the injunction will be dissolved/'^ §973. Actual infringement not necessary; apprehensions of future infring-ement ; experiments. It is not necessary to the issuing of the w^rit that the wrong should actually have been committed, but reasonable grounds for belief that an infringement may occur in the future will warrant the in- junction, when the title has been established at law.^^"' So ^'•> Wooaworth /■. Edwards, 3 will never interfere where there is Woodb. & M., 120. adequate remedy at law. ^-0 Wilson r. Sherman, 1 Blatch., •"■;! Clum r. Brewer. 2 Curt. C. C, 536. 506. •'-1 Belding r. Turner, 8 Blatch., "-^ Goodyear r. Bourn, 3 Blatch.. 321. 266. •"'^ Woodworth r. Weed, 1 Blatch., •"••"' Poppenhusen r. New York, 4 165. It may well be doubted, how Blatch., 184. This was a bill for ever, whether this rule can oe an injunction whore a verdict had maintained consistently with the been had against the defendants in established principle thai equity the same court in an action at law CHAP. XVI.] IXFRINGEMEMT OF PATENTS. 917 although no actual infringement has occurred, yet if there is a deliberate intention expressed and about to be carried into execution to infringe under a claim of right to use the patented invention, plaintiff is entitled to relief by injunc- tion.''" And where defendant has in his possession a num- ber of the infringing devices and has already nifringed plain- tiff's patent, or where it is clear that he intends to manu- facture and sell the offending device, it is no defense that no sales have as yet been made or that the defendant has no further intention of violating the plaintiff's rights, since, ii upon the same patents. The bill alleged violation of complainant's right after the verdict, and that defendants would continue such violation in future, unless re- strained by injunction. Ingersoll, J., delivering the opinion of the court, says: "The writ of injunc- tion is a remedial writ in the na- ture of a prohibition. The object of the present motion for an in- junction is to prevent the commis- sion of injuries in the future, not to redress injuries that are past. The writ prayed for is to act as a remedy against a threatened wrong by preventing the commission of such wrong; and it is not neces- sary, before a writ to prevent a wrong can issue, that the wrong should actually have been com- mitted. If it were, the remedy by injunction would be a very inade- quate one. If the rights of a party under a patent have been fully and clearly established, and an in- fringement of such rights is threatened, or if, when they have been infringed, the party has good reason to believe they will con- tinue to be infringed, an injunc- tion will issue. It issues for the reason that there is good ground to believe that in future they will be infringed. Where a trial at law has been had, resulting in a verdict in favor of the patentee, and the right to the improvement patented has been fully establish- ed, to the satisfaction of the court, and the infringement of right made clear, such a trial resulting in such a verdict is sufficient, with- out any other proof, to authorize the court to grant an injunction to prevent any future violation of right. Such a trial, with such a result, affords sufficient proof, that, in future, there will be an in- fringement, unless such infringe- ment is restrained by injunction. It is, under such circumstances, al- most a matter of course that the injunction should be allowed. (Neilson v. Harford, Webster's Patent Cases, 373). Such a trial at law, resulting in such a verdict, to the entire satisfaction of the court, has taken place between the parties to this suit." See also Frearson /-. Loe, 9 Ch. D., 48. se Frearson r. Loe, 9 Ch. D., 48. 918 iNjUNCTioxs. [chap. xvr. such is the case, no harm will result from the injunction.-'^''' And the fact that defendant has previously infringed plain- tiff's patent and has some of the infringing devices upon hand and has advertised them in his catalogue is sufficient ground for an injunction, even though defendant is at present making no sales and has promised not to do so.^"* And where defendant has already filled an order for the in- fringing device in the ordinary course of business and there is therefore reason to believe he will fill similar orders in the future if brought to him, an injunction will issue to restrain future infringement, although there is no threat or suggestion upon the part of the defendant of future in- fringement."^ And while the making of the patented article by defendant in the course of bona fide experiments, with a view of improving upon the invention, is not of itself an infringement, yet equity will enjoin a defendant from manu- facturing a quantity of the patented goods under the plea of experimenting, even though the quantity be small.^*^ But where the owners of rival machines have submitted them to a competitive examination before judges appointed by an institute for the promotion of manufactures and the arts, and such judges have determined that one of the machines is entitled to a medal of superiority, an injunction will not lie in behalf of one of the competitors to prevent the delivery of such medal.^^ § 974. Public convenience ; injury to third persons. When the patented machine, the use of which it is sought to enjoin, is being used by defendants for the convenience of the pub- lic, as in the case of a stone-crusher used in repairing the roads 57 Sessions v. Gould, 49 Fed., "o Dunlop Pneumatic Tyre Co. v. 855; New York B. & P. Co. v. Gut- Neal, (1899) 1 Ch., 807. ta Percha Mfg. Co., 56 Fed., 264. go Frearson v. Loe, 9 Ch. D., 48. And see, post, § 976. gi New E. V. Co. r. American In- ■'•^ Henzel y. California Electrical stitute, 24 Fed., 561; S. C, upon Works, 2 C. C. A., 495, 51 Fed., final hearing, 28 Fed., 722. 754. CHAP. XVI.] INFRINGEMENT OF PATENTS. 919 in a large cemetery adjacent to a city, the use of the machine being necessary for the public convenience in burying the dead, an injunction may be withheld in limiiie upon terms of defendant paying into court the amount of plaintiff's royalty upon the machine, to abide the result of the suit.^^ But, while the question of public convenience may thus be considered in passing upon an application for an interlocu- tory injunction to restrain the infringement of a patent, it is held that the fact that the granting of the injunction will indirectly work an injury to third persons affords no ground for denying the relief in a case otherwise proper for an in- junction.^^ Where, however, plaintiffs have no patented machine in operation and are neither manufacturing nor using it, and the eft'ect of an injunction would be to close up defendant's business and it would be productive of great expense and injury to third parties, it is proper for the court to take such facts into consideration in refusing an applica- tion for an interlocutory injunction.*'^ § 975. Validity ; novelty ; infringement. To warrant relief by injunction against the infringement of letters patent, the court must be satisfied of the validity of plaintiff's patent, of the novelty of his invention and of the fact of infringe- ment.*^^ If, therefore, grave doubt exists as to the validity of the patent, an interlocutory injunction will be denied.^^ So if the court, upon the evidence before it, entertains strong doubts as to the novelty of plaintiff' 's invention, it will refuse to interfere by injunction in limiiie.^'^ And where defend- 62 Blake r. Greenwood Cemetery, Hodges, 1 Holmes, 37; Sargent 14 Blatch., 342. Manufacturing Co. v. Woodruff, 5 C3 Rumford Works v. Vice, 14 Biss., 444. Blatch., 179. ^s Fales v. Wentworth, 1 Holmes, 64 Hockholzer v. Eager, 2 Sawy., 96; S. C, 5 Fish., 302; Huber v. 361. And see Dorsey Co. v. Marsh, Myers Sanitary Depot, 33 Fed., C Fish., 387. 48; Wollensak v. Sargent, 33 Fed., 65 Fales v. Wentworth. 1 Holmes, 840. 96; S. C, 5 Fish., 302; Jones i'. e? Jones r. Hodges, 1 Holmes, 37. 920 INJUNCTIONS. [chap. XVI. ant's article which is alleged to be an infringement of plain- tiff's patent is being manufactured under letters patent, the court, upon an application for an interlocutory injunction, is at liberty to indulge the presumption that it is not an infringement, and may deny the injunction, leaving the ques- tion of infringement to be determined upon the final hear- ing.^^ So when the fact of mfringement is fully denied by the answer under oath, and by affidavits in support of it, the question being left in great doubt upon the papers pre- sented upon the motion for an injunction, it is proper to Avithhold the relief upon an interlocutory application, leaving the matter to be determined upon the hearing.*^^ § 976. Infringement after verdict ; promise by defendant nat to continue infringement. When a verdict has already been recovered against defendants in an action at law in the same court and upon the same patents, and a bill is then filed to procure an injunction, the bill alleging a viola- tion of plaintiff's rights after verdict, it will not suffice for defendants to answer that what they have done since the finding of the verdict was not in violation of plaintiff's right; but they should state explicitly that they do not in- tend to commit any infringement in the future.'^^ Nor will the fact that since the commencement of suit defendants have ceased to infringe, and do not threaten further infringe- ment, prevent the issuing of a preliminary injunction, if a necessity for the writ existed at the time of filing the bill, plaintiffs alleging that they apprehend a continuance of the infringement. In such cases the patentee will not be com- pelled to rest his equities upon the mere assertion of de- fendants that the infringement shall not be repeated, and the court will impose the necessary restraint to prevent a '■'** Sargent Manufacturing Co. /•. Backus H. Co., 97 Wis., 160, 72 N. Woodruff, 5 Bi.ss., 444. W., 230. <■•" Sargent Manufacturing Co. '■ '" Poppenhusen r. New York, 4 Woodruff, 5 Diss., 444; Walker (. Blatrh.. 184. CHAP. XVI.] IXIKIXGEMEXT OF PATENTS. 921 repetition of the injury.'* And where defendant has been guilty of infringing phiintiff's patent in the past, his assur- ance that he has no further intention of so doing and his promise to desist will not be sufficient to overcome the pre- sumption of future infringement arising from his past acts and will accordingly be no defense to an application for an injunction."^ But where, in addition to a disclaimer by the defendant of an intention of again infringing plaintifit' *s patent, there is an absence of reasonable ground for believing that he will again do the act complained of, the injunction will be denied.'^^ § 977. Subsequent patent to defendant ; doubt as to nov- elty. Complainant's patent being fully established at law, and the infringement being clearly proven, the injunction will not be refused because of defendant's reliance upon a subsequent patent to himself, which contains on its face satis- factory evidence that its process involves an infringement of the prior patent."^ But to warrant the injunction, it must appear that defendant has either used the patented machine himself, or has employed others to use it for him, or has profited by its use.'^^ And where the novelty of the inven- tion is denied, and the question is involved in considerable doubt, the injunction will be withheld until a trial at law.'^* § 978. Proof as to inventor ; dissolution. Upon the appli- cation for the writ it must appear, either in the sworn bill, Ti Potter V. Crowell, 1 Abb. U. S. Giitta Percha Mfg. Co., 56 Fed., R., 89; S. C, 3 Fish., 112; Jen- 264. kins V. Greenwald, 2 Fish., 37; -'Proctor v. Bajiey, 42 Ch. D., Rumford Works r. Vice, 14 Blatch., 390. 179; White v. Heath, 10 Fed., 291. '^ Goodyear v. Evans, 6 Blatch., 72 Geary v. Norton, 1 DeG. & 121. Sm., 9; Celluloid Mfg. Co. v. Ar- -• Woodworth v. Hall, 1 Woodb. lington Mfg. Co., 34 Fed., 324; & M., 249. White r. Walbridge, 46 Fed., 526; -''Booth r. Garelly, 1 Blatch.. Sawyer Spindle Co. v. Turner, 55 247. Fed., 979; New York B. & P. Co. r. 922 INJUNCTIONS. [OIIAP. XVI. or by affidavit, that complainant is the inventor of the patent to be protected, and it does not suffice that he swore to this when he obtained his patentJ'^ And on a motion for a dis- solution of the injunction, upon affidavits, sufficient proof must be adduced to overcome the equity of the bill and the evidence supporting it.^^ And where a special injunction is granted upon bill filed, a motion to dissolve will not be heard upon the same evidence, or on new evidence improperly neg- lected on the former hearing, but new and material testimony will be required.'^ § 979. Parties. Equity will not, on the application of the legal owner, enjoin the equitable owner of a patent.^" But where one person has the legal and another the equitable right to the patent, both should be joined in an action for infringement.^'*^ And where the infringement is the act of several persons jointly, they should all be made defendants, but if it is their separate act separate bills should be filed against them.*'^ The directors of a corporate company who, as the agents of the company, have committed an infringe- ment, should be made parties.^^ And the assignor of a patent, who still retains an interest in the patent, although none in the territory where the infringement occurred, is a proper party to a bill for an injunction.^^ So the assignee of part of a patent, within a particular territory, may properly enjoin the infringement in that territory.*^'' And where one of three parties works a patented machine, which 7T Sullivan r. Redfield, 1 Paine, 33; Goodyear r. New Jersey R. R., 441. 1 Fish.. 626. 78 Sparkman v. Higgins, 1 »- Dilly r. Doig, 2 Ves. Jr., 486. Blatch., 205. »•'' Betts v. DeVitre, 34 L. J. Ch , 7!' Woodworth r. Rogers, 3 289; Goodyear r. Phelps, 3 Blatch., Woodb. & M., 135. 91. «f» Clum r. Brewer, 2 Curtis, 506. *** Woodworth r. Wilson, 4 How., «i Stimpson v. Rogers, 4 Blatch.. 712. 333; Goodyear r. Allyn, 6 Blatch., '^■'' Ogle r. Edge, 4 Wash. C. C, 584. CHAP. XVI.] INFRINGEMENT OF PATENTS. 923 is owned by two others, the relief will be granted against all.**" Nor will the court refuse to enjoin because a number of parties, all of whom are interested in the patent, have con- tributed to a common fund for tHe protection of their com- mon rights by prosecuting infringements of those rights.^''' But the owner of a patent can not maintain a bill to enjoin officers of the government of the United States from using devises alleged to infringe plaintiff's patent, where such de- vises are the property of the United States as owner or lessee and are being used by such officers in the service of the government. In such case the United States, having a proprietary interest in the alleged infringing device, is a necessary party to the proceeding and since it can not be made a party thereto, the bill must fail and the injunction be denied.^^ § 980. Questions of jurisdiction. For the purpose of re- straining the infrmgement of a patent the court need only have jurisdiction of the person.^'^ But where defendant re- sides in another jurisdiction, in which the infringement oc- curred, the court will not interfere.^*^ And it has been held that a defendant who is the owner of a patent in certain territory can not be enjoined from selling the patented machine in complainant's territory, on the ground that the law extends protection only to the thing patented, and not to its product.^' But it is no defense to an application for an injunction that the defendants have ceased manufacturing the infringing article in the district if they are still asso- ciated in the business of manufacturing and selling it at some place outside of the district.^^ 86 Woodworth v. Edwards, 3 sa Wilson v. Sherman, 1 Blatch., Woodb. & M., 120. 536. 87 Potter V. Fuller, 2 Fish., 251. «» Goodyear v. Bourn, 3 Blatch.. 88 Belknap r. Schild, 161 U. S.. 266. 10, 16 Sup. Ct. Rep., 443; Interna- "i Boyd r. Brown, 3 McLean, 295. tional Postal S. Co. r. Bruce, 194 92 Braddock Glass Co. v. Macbeth, U. S., 601. 24 Sup. Ct. Rep., 820. 12 C. C. A., 70. 64 Fed., 118. 924 IXJUKCTIONS. [chap. XVI. §981. Expiration of patent; assignee of defendant pen- dente lite. An injunction may be granted, although the patent is about to expire, to restrain the sale of machines manufactured in violation*thereof while it is yet in force."^ And where the validity of the patent and the infringement by the defendant are clear, a preliminary injunction should be allowed, although the patent will soon expire and the defendant is financially responsible and willing to give bond for damages.''^ And under such circumstances, an injunction may be alloAved upon final hearing.*^"^ But where, notwith- standing the validity of the patent and infringement by the defendant, the remaining life of the patent is of so short a duration that the effect of the relief would be merely nominal and of no practical value to the plaintiff, an inter- locutory injunction may be denied upon defendant's giving bond for the payment of damages.^ § 981 a. The same ; effect on appeal ; when injunction al- lowed though patent has expired. In case the patent has already expired, either before the filing of the bill or there- after but before the application for the injunction, that fact is conclusive against the right to the writ, either upon in- terlocutor}' application or upon final hearing.- And in such case, if a preliminary injunction has already been granted, it should be dissolved even as to the sale of articles manu- factured during the life of the patent."^ And where an ap- 03 Crossley v. Beverley, 1 Russ. 2 Clark v. Wooster, 119 U. S., & M., 166, note. 322, 7 Sup. Ct. Rep., 217; Ameri- 34 Electric S. B. Co. v. Buffalo E. can Cable Ry. Co. i\ Chicago City C. Co., 117 Fed., 314. Ry. Co., 41 Fed., 522; American "•■■' American Bell Tel. Co. 1:. Cable Ry. Co. r. Citizens Ry. Co., Brown, 58 Fed., 409; American 44 Fed., 484; Covert r. Travers Bell Tel. Co. r. Western Tel. & Bros. Co., 96 Fed., 568; Vaughn Const. Co.. 58 Fed-. 410. r. Central Pacific R. Co., 4 Sawy.. 1 National Cash-Register Co. v. 280. Navy Cash-Register Co., 99 Fed., •« Westinghouse v. Carpenter, 43 565. Fed., 894. CHAP. XVI.] IXFKIXGEMEXT OF PATENTS. 925 peal has been taken from a preliminary injunction, the ex- piration of the patent pending sueh appeal terminates the operation of the injunction and the appeal should therefore be dismissed.^ Although an article has become common prop- erty by reason of the expiration of the patent, yet where plaintiff has been manufacturing the article from patterns which he has prepared after great labor and has never pub- lished to the world, one who has surreptitiously copied such patterns and is making the article from them will be en- joined.'* But the part manufacture of a patented article dur- ing the life of the patent, which does not amount to an in- fringement, for the purpose of completing the article after its expiration will not be enjoined since what the defend- ant is doing does not and never will amount to an in- fringement.^ But the provisions of the writ may be ex- tended to an assignee of the defendant, who takes an as- signment of defendant's right pendente lite, and with full knowledge of all the proceedings.'^ § 981 h. Effect of expiration on right to accounting". Upon the question of what becomes of the main action wdien the patent has expired after the filing of the bill, it is, of course, clear that if the injunction is the only relief sought, the bill must be dismissed upon the failure of the right to the injunction. Where, however, as is usually the case, the bill seeks an accounting as Avell as injunctive relief, the authorities are not uniform. Upon the one hand, it has been held that so long as the patent is in force at the time of the filing of the bill and a sufficient length of time intervenes be- fore its expiration to enable the plaintiff, under the rules of the court, to apply for an interlocutory injunction, the bill i Gamewell F. T. Co. r. Municipal '• Tabor r. Hoffman. 118 N. Y., 30, Signal Co., 9 C. C. A., 450, 61 Fed., 23 N. E., 12, 16 Am. St. Rep., 740. 208; Lockwood v. Wickes, 21 C. C. '' White r. Walbridge. 46 Fed., A., 257, 75 Fed.. 118; National Fold- 526. ing B. & P. Co. /•. Robertson, 44 ' Parkhurst v. Kinsman, 2 C. C. A., 29, 104 Fed.. 552. Blatch., 78. 926 INJUNCTIONS. [chap. XVI, should be retained for purposes of an accounting notwith- standing the expiration of the patent and the consequent failure of the right to the injunction. In such case, since the action is one which, in its inception, entitled the plaintiff to relief in equity, the mere fact that the patent has subse- quently expired and has thus defeated the right to a part of the relief sought, will not operate to deprive the court of a jurisdiction which has once attached, and the court, having thus acquired jurisdiction by the filing of the bill, will retain it for all purposes and may accordingly grant relief by way of an accounting.^ The rule as thus announced, be- ing supported by the authority of the Supreme Court of the United States, must be regarded as firmly and definitely es- tablishing the proper practice. It has nevertheless been held, upon a bill for an injunction and accounting, that where it appeared upon the lace of the bill that the patent had ex- pired after the commencement of the action, a demurrer should be sustained and the bill should accordingly be dis- missed, there being no other special circumstances which would entitle plaintiff to equitable relief.^ §982. Grounds of dissolution; account; appeal. Where an injunction is granted against the infringement of a patent, and at the same time complainant is ordered to bring an action at law to test his rights, delay in proceeding at law will constitute sufficient ground for a dissolution of the injunc- 8 Clark V. Wooster, 119 U. S., cago City Ry. Co., 41 Fed., 522; 322, 7 Sup. Ct. Rep., 217; Beedle v. American Cable Ry. Co. v. Citizens Bennett, 122 U. S., 71, 7 Sup. Ct. Ry. Co., 44 Fed., 484. And see Rus- Rep., 1090; Busch v. Jones, 184 U. sell v. Kern, 16 C. C. A., 154, 69 S., 598, 22 Sup. Ct. Rep., 511; Ross Fed., 94. See also Root v. Railway r. City of Ft. Wayne, 11 C. C. A., Co., 105 U. S., 189, where no injunc- 288, 63 Fed., 466. And see Keyes tion was sought but only relief by r. Eureka Mining Co., 158 U. S., way of accounting and damages. 152, 15 Sup. Ct. Rep., 772; "West- See also Covert v. Travers Bros, inghouse r. Carpenter, 43 Fed., 894. Co., 96 Fed., 568. American Cable Ry. Co. v. Chi- CHAP. XVI.] INFRINGEMENT OF PATENTS. 927 tion, but defendants may still be required to keep an ac- count after the dissolution.^^ ^^^j ^j^^ court may, on suf- ficient cause shown, permit the injunction to be dissolved upon condition of defendants giving security to account to complainants if their right shall be established.^' But a de- cree for an injunction in a patent cause, with a reference to a master to take an account of profits, is not considered a final decree from which an appeal will lie.^^ §983. Penalty for not marking patented articles; injunc- tion upon the hearing-. The penalty imposed by act of Con- gress for not marking patented articles does not affect the right to an injunction to restrain an infringement.^^ Nor is complainant barred from asking an injunction upon the hear- ing because of his neglect to apply for the relief by an in- terlocutory motion, although such neglect will impose upon him the obligation of making out a clear and unexception- able title at the hearing.^-* § 984. Process not patented may be protected. A process of manufacture may, under certain circumstances, be pro- tected by injunction, although not the subject of a patent. Thus, where defendant, through breach of contract and in violation of confidence, has become possessed of a secret process of manufacture, he will be enjoined from making any use of the secret. Although complainant in such a case may not be entitled to protection in equity as against the public generally, his process not being patented, he is en- titled to protection against the defendant who has obtained possession of his secret in violation of the contract of the person by whom it was communicated to defendant.^^ 10 Stevens v. Keating, 2 Ph., 333. is Goodyear v. Allyn, 6 Blatch., 11 Brooks V. Bicknell, 3 McLean, 33; S. C, 3 Fish., 374. 250. 14 Bacon v. Spottiswoode, 1 Beav., 12 Barnard v. Gibson, 7 How., 382; Buchanan v. Rowland, 5 650; Humiston v. Stainthorp, 2 Blatch., 151. Wal., 106. And see, post, Subdi- i& Morrison r. Moat, 9 Hare, 241; vision III, chapter on Appeals. 928 INJUNCTIOxXS. [chap. XVI. § 985, When jurisdiction exercised over foreigners. The jurisdictiou of equity for the protection of patents is exer- cised over foreigners within the limits of the country grant- ing the patent, as well as over its own subjects and citizens. And an injunction will be allowed to restrain the citizens of one nation from using machinery patented to the citizens of another, on board their ships within the harbors of the nation granting the patent.^*' Westervelt v. National Paper Co., 154 Ind., 673, 57 N. E., 552. i« Caldwell v. Vanvlissengen, 9 Hare, 415. The principles applica- ble to injunctions against the in- fringement of patents by foreigners within the jurisdiction of the gov- ernment granting the patent are well set forth by the Vice Chancel- lor in this case, as follows: "I take the rule to be universal that for- eigners are in all cases subject to the laws of the country in which they may happen to be; and if in any case, when they are out of their own country, their rights are regulated and governed by their own laws, I take it to be, not by force of those laws themselves, but by the law of the county in which they may be adopting those laws as part of their own law for the purpose of determining such rights. * * * Foreigners com- ing in this country are, as I ap- prehend, subject to actions for injuries done by them whilst here to the subjects of the crown. Why, then, are they not to be subject to actions for the injury done by their infringing upon the sole and exclusive right which I have shown to be granted in conformity with the laws and constitution of this country? And if they are subject to such actions, why is not the power of this court, which is founded upon the insufficiency of the legal remedy, to be applied against them as well as against the subjects of the crown. It was said that the prohibitory words of the patent were addressed only to the subjects of the crown; but these prohibitory words are in aid of the grant and not in derogation of it; and they were probably introduced at a time when the prohibition ot the crown could be enforced per- sonally against parties who ven- tured to disobey it. The language of this part of the patent, there- fore, does not appear to me to alter the case. * * * j^ the ar- gument on the part of the defend- ants much was said on the hard- ship of this court's interfering against them, and upon the incon- venience which would result from it; and some reference was made to the policy of this country; but it must be remembered that British ships certainly can not use this in- vention without the license of the patentees, and the burthens inci- dent to such a license; and for- eigners can not, I think, justly complain that their ships are not CJIAP. XVI. J infringp:ment of patents. 929 § 986. Violation ; infringement not determined in con- tempt proceeding'; judgment imposing- fine, being criminal, is reviewable by writ of error. One wlio lia.s been enjoined from the infringement of a patent violates the mandate of the court by using a machine which in substance and prin- ciple contains important portions of the patent, although in other respects it may contain new and improved features. So if he uses another patent, similar in principle, the author of which has also been enjoined by the owner of the first patent, he is guilty of a contempt of court.' ''' And a de- fendant who has been enjoined from infringing by the manu- facture and sale of the article, is equally guilty of a vio- lation of the writ, whether he sells in his own right or as the agent of another.'*^ So working for wages in a shop or factory, where articles are manufactured infringmg on com- plainant's patent, is a violation of the injunction, if done by one on whom the writ was served, and will be punished permitted to enjoy, without license and without payment, advantages which the ships of this country can not enjoy otherwise than under license and upon payment. It must be remembered that foreign- ers may take out patents in this country, and thus secure to them- selves the exclusive use of their inventions within Her Majesty's dominions; and that, if they neg- lect to do so, they, to this exent, withhold their invention from the subjects of this country. It is to be observed, also, that the enforce- ment of the exclusive right under a patent does not take away from foreigners any privilege which they ever enjoyed in this country; for, if the invention was used by them in this country before the granting of the patent, the patent, I apprc- 59 hend, would be invalid. One principal ground of inconvenience suggested was, that if foreign ships were restrained from using this in- vention in these dominions, Eng- lish ships might equally be re- strained from using it in foreign dominions; but I think this argu- ment resolves itself into a question of national policy, and it is for the legislature, and not for the courts, to deal with that question; my duty is to administer the law and not to make it. Upon the grounds which I have referred to, I think that the facts stated in the affida- vits and answer do not furnish sufficient grounds for refusing these injunctions." 17 Wood worth r. Rogers, 3 Woodb. & M.. 135. IS Potter r. Muller, 2 Fish., 631. 930 INJUNCTIONS. [chap. XYl. by attachment.!'^ ^q^^j jj^ q^^^q qJ ^ wilful violation of an injunction against the infringement of a patent, it is proper for the court, on motion for an attachment against defend- ant, to impose upon him the payment of such counsel fees and disbursements as were necessary to establish the viola- tion of the injunction.-^ And it has been held that where, after the granting of an injunction against infringement, de- fendant has made additions to the infringing device, the ques- tion whether the device as thus modified constitutes an in- fringement can not be determined in a motion for attachment for contempt but must be raised by supplemental bill in the original cause or by new suit.^^ The imposition of a fine for the violation of an injunction where the contempt pro- ceedings are heard upon motion entirely disconnected with the proceeding in which the injunction was granted, is a judgment in a criminal cause and, as such, is reviewable by writ of error and not by appeal.-^ § 987. Account not incidental to injunction. The jurisdic- tion of the United States courts in this class of cases being derived wholly from statute, the English rule that the ac- count is strictly incident to the injunction, and that where an injunction is refused an account will be denied, is not applicable in this country.-^ And if the patent has expired between the time of filing the bill and the hearing, the court may direct an account, although no injunction will be al- lowed against the future use of the article.-^ la Goodyear v. Mullee, 5 Blatch., 366, 67 Fed., 163. And see, post, 429; S. C, 3 Fish., 209. § 1466. 20 Doubleday v. Sherman, 4 Fish., -'^ Sickles v. Gloucester Manufac- 253. taring Co., 1 Fish., 222. -1 Enterprise Mfg. Co. v. Sargent, -* Imlay v. Norwich & W. R. Co., 48 Fed., 453. And see Allis i. 4 Blatch., 227. And see, ante, § Stowell, 15 Fed., 242. 981 b. '■;••: Gould c. 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